FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 06-30447
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-06-00004-DWM
WILLIAM CODY HORVATH,
                                               ORDER
             Defendant-Appellant.
                                      
                    Filed April 9, 2008

     Before: Harry Pregerson, Pamela Ann Rymer, and
             Susan P. Graber, Circuit Judges.

                          Order;
              Concurrence by Judge Graber;
                  Dissent by Judge Bea;
             Dissent by Chief Judge Kozinski


                          ORDER

  Judges Pregerson and Graber voted to deny the petition for
rehearing en banc, and Judge Rymer voted to grant it.

  The full court was advised of the petition for rehearing en
banc. A judge of the court called for a vote on whether to
rehear the matter en banc. The majority of the nonrecused
active judges failed to vote in favor of en banc rehearing.

   The petition for rehearing en banc is DENIED. With this
order the Clerk shall also file Judge Graber’s concurrence,
Judge Bea’s dissent from denial, and Chief Judge Kozinski’s
dissent from denial.


                            3683
3684                    UNITED STATES v. HORVATH
GRABER, Circuit Judge, with whom Judges WARDLAW,
GOULD, and PAEZ, join, concurring in the denial of rehear-
ing en banc:

   I write separately to address one critical error made by
Judge Bea’s dissent about the role of a probation officer.1 The
dissent’s view of that role is both impractical and inconsistent
with the applicable federal rule.

   When a defendant makes a material statement about his or
her personal history, the probation officer must, by law,
include that statement in the presentence report (“PSR”). 18
U.S.C. § 3552(a); Fed. R. Crim. P. 32(d)(2). I agree with the
dissent that “[t]he probation officer is required to investigate
the truth of the defendant’s statements and tell the judge if his
investigation reveals facts that undercut the defendant’s repre-
sentations.” Dissent at 3690. That is, in fact, precisely what
the probation officer did in this case.

   Regrettably, the dissent sees another option. The dissent
asserts, quite cryptically, that the probation officer need not
include a defendant’s material statement of personal history
and may, instead, “report that the defendant relayed informa-
tion regarding his military service, education level, etc., but
that the probation officer has not included such information in
  1
    I also note that the dissent incorrectly states that “the Fourth Circuit . . .
held that a criminal defendant may be prosecuted under 18 U.S.C.
§ 1001(a) for lying to his probation officer.” Dissent at 3688-89. In In re
Morrissey, 

, 212 (4th Cir. 2002), the Fourth Circuit addressed
legal questions concerning disbarment of a lawyer. The question before
the court was whether the lawyer should be disbarred for “egregious con-
duct over a period of years.” 

One of the events was a conviction
for lying to a probation officer under 18 U.S.C. § 1001(a), but that was
just an underlying fact, not an independent legal issue addressed by the
court. The court merely described the lawyer’s unfortunate history; it did
not address any arguments related to § 1001, let alone the exception inter-
preted by the Horvath majority: § 1001(b). Indeed, subsection (b) was not
even mentioned in the opinion. Under any notion of stare decisis, the
Fourth Circuit clearly has not addressed the issue resolved by Horvath.
                   UNITED STATES v. HORVATH                  3685
the PSR because it does not have ‘sufficient indicia of reli-
ability.’ ” Dissent at 3697.

   It is hard to imagine what the dissent envisions. Perhaps the
probation officer would report: “The defendant said some-
thing about military history [or education level or any other
material fact] but I am omitting that statement and the results
of my investigation because I have concluded that the defen-
dant’s statement is unreliable.” Why wouldn’t the probation
officer just include the statement and the results of the investi-
gation (as was done here)? Excluding those facts would frus-
trate the raison d’etre of the presentence report: to provide the
district court with all relevant information about the defen-
dant’s personal history.

   More to the point, there is no support for the dissent’s pecu-
liar assertion. The dissent does not rely on a single judicial
authority for such a procedure, because none exists. Instead,
the dissent cites a document that it titles the “PSR Manual.”
But even the portions of the PSR Manual cited by the dissent
demonstrate that “ ‘[t]he probation officer is responsible for
gathering all pertinent facts about the defendant . . . and pre-
senting the information in an organized, objective report.’ ”
Dissent at 3696 (quoting PSR Manual at II-1) (emphases
added).

   The dissent argues that such “facts” are not facts unless
shown to be reliable. The PSR Manual does state that,
although “[t]he court is not bound by the Federal Rules of
Evidence at sentencing[,] . . . [the] information should have
[ ] ‘sufficient indicia of reliability to support its probable
accuracy.’ ” PSR Manual, III-2. But that passage makes clear
that those guidelines apply only to “out-of-court statements
made by someone other than the defendant.” PSR Manual at
III-3 (emphasis added). In other words, that section simply
does not apply at all to statements made by the defendant.

   It is no accident that the PSR Manual limits that section to
statements made by someone other than the defendant. As the
3686               UNITED STATES v. HORVATH
PSR Manual explains, the reliability requirement stems from
the fact that, although district courts may consider a wider
range of hearsay evidence at sentencing than the Federal
Rules of Evidence would permit, the evidence still must meet
the minimum requirement of having sufficient indicia of reli-
ability. But, as explained by the cases cited by the PSR Man-
ual, that reliability requirement arises from the defendant’s
right to due process. See United States v. Petty, 

, 1369 (9th Cir. 1993) (as amended) (“Although the Con-
frontation Clause does not apply at sentencing, a defendant
clearly has a due process right not to be sentenced on the basis
of materially incorrect information. Due process requires that
some minimal indicia of reliability accompany a hearsay
statement.” (citation omitted)). The inclusion in the PSR of
the defendant’s own statement to the probation officer,
whether reliable or not, does not offend the defendant’s right
to due process. In short, the reliability rule does not apply to
the defendant’s own statements made to the probation officer
during a presentence interview.

   That conclusion makes practical sense as well. The main
reason why hearsay is generally inadmissible is that the court
has no way to assess the credibility of the speaker or the cir-
cumstances in which the speaker made the statement. In con-
trast to statements made by others, statements by a defendant
can be examined by the court during the sentencing hearing.
In fact, that is exactly what happened in this case: the sentenc-
ing judge questioned Defendant at length about his alleged
military service. In other words, the reasons to exclude hear-
say evidence from the sentencing process simply are not pres-
ent when the statement is made by the defendant.

   The dissent’s view threatens to undermine the proper func-
tioning of the probation office. The probation officer in this
case did a commendable job: Defendant said that he served in
the military. The probation officer investigated that statement
and discovered that it was unverified. The probation officer
reported both facts—that Defendant made the statement and
                   UNITED STATES v. HORVATH                   3687
that the statement was unverified—in an objective manner. At
sentencing, the district court then was able to question Defen-
dant and rule on the factual issue.

   The probation officer’s objective presentation of this
unfiltered information to the district court fulfilled precisely
what the rules contemplate. Federal Rule of Criminal Proce-
dure 32 sets out the requirements for a presentence investiga-
tion and a presentence report. In some particulars, Rule 32
demands the inclusion of only verified information. For exam-
ple, a “presentence report must . . . contain . . . verified infor-
mation, stated in a nonargumentative style, that assesses the
financial, social, psychological, and medical impact on any
individual against whom the offense has been committed.”
Fed. R. Crim. P. 32(d)(2)(B) (emphasis added). Unverified
claims are to be excluded. That limitation does not appear in
Rule 32(d)(2)(A), which requires a PSR to include “the defen-
dant’s history and characteristics.” In other words, a probation
officer must alert the district court when a defendant’s
reported personal history is unverified, but the rule plainly
does not allow the probation officer to omit unverified, mate-
rial aspects of the defendant’s stated personal history.

   Probation officers exercise a fair amount of discretion in
preparing a presentence report. But screening out a defen-
dant’s material statements of personal history is beyond the
scope of that discretion. No matter what one’s view of the
underlying question of statutory interpretation, a probation
officer who heeded the dissent’s advice would act contrary to
Federal Rule of Criminal Procedure 32 and would ill serve the
district court, which is charged with resolving factual disputes
about the accuracy of the PSR. Fed. R. Crim. P. 32(i)(3).
3688               UNITED STATES v. HORVATH
BEA, Circuit Judge, with whom Chief Judge KOZINSKI, and
Judges O’SCANNLAIN, KLEINFELD, TALLMAN, BYBEE
and CALLAHAN join, dissenting from the denial of rehear-
ing en banc:

   Horvath is a slippery customer, in more ways than one.
First, he escaped from prison. Captured with a gun in his pos-
session, he pleaded guilty to being a “fugitive with a firearm”
in violation of 18 U.S.C. § 922(g). Interviewed by his proba-
tion officer, but not under oath, Horvath concocted a tale of
his service for his country in the United States Marine Corps.
He went so far as to claim he received a Purple Heart for his
wound in Panama. To help prove his claim, he showed the
probation officer “dog tags” with his name on them. He sold
this tale to his probation officer, who included it in his presen-
tence report (“PSR”) to the sentencing judge as a mitigating
factor.

   When the truth came out—Horvath never served a minute
in the Marines—he was indicted for making a materially false
statement to an officer of the judicial branch, in violation of
18 U.S.C. § 1001(a). He entered a conditional guilty plea and
appealed on the ground that he had committed no crime. The
majority of the panel agrees with Horvath, finding the proba-
tion officer is required by law to present the defendant’s state-
ment to the judge in the PSR verbatim, because the probation
officer is nothing more than a mere conduit to the judge.
United States v. Horvath, 

, 1078-80 (9th Cir.
2007). This is the only justification for the majority’s holding.
Thus, the majority holds the statements made by a party to a
“probation officer” are exempt from prosecution under 18
U.S.C. § 1001(b), which in fact exempts only statements
made by a party or his attorney “to a judge or magistrate.”

   The majority’s holding that a person cannot be prosecuted
under § 1001(a) for false statements made to a probation offi-
cer creates tension with the Fourth Circuit, which held that a
criminal defendant may be prosecuted under 18 U.S.C.
                     UNITED STATES v. HORVATH                      3689
§ 1001(a) for lying to his probation officer. See In re Mor-
rissey, 

, 218 (4th Cir. 2002) (affirming the dis-
barment of an attorney who had been convicted under 18
U.S.C. § 1001(a) for lying to his probation officer).1 Although
Morrissey did not specifically address the argument made by
appellant here, neither did it hold § 1001(b) exempted from
prosecution statements made to a probation officer.

   Nevertheless, this is not the worst aspect of the majority’s
reasoning. The worst aspect is in the majority deciding that
we should be the entity to grant immunity under 18 U.S.C.
§ 1001(b), where Congress did not see fit to grant such immu-
nity. If Congress had wanted to exempt statements made by
a defendant to a probation officer, then Congress knew how
to do it. Instead, Congress chose to exempt only statements
made by a party or his counsel “to a judge or magistrate.” 18
U.S.C. § 1001(b).

I. The majority’s ruling goes against the statutory
language.

   Under 18 U.S.C. § 1001(a), “whoever, in any matter within
the jurisdiction of the executive, legislative, or judicial branch
of the Government of the United States, knowingly and will-
fully . . . makes any materially false, fictitious, or fraudulent
statement or representation . . .” is criminally liable. “Subsec-
tion (a) does not apply to a party to a judicial proceeding, or
that party’s counsel, for statements, representations, writings
or documents submitted by such party or counsel to a judge
or magistrate in that proceeding.” 18 U.S.C. § 1001(b).
  1
    The exemption for statements made by a party to a judge or magistrate
in 18 U.S.C. § 1001(b) was first enacted on October 11, 1996, before Mor-
rissey was decided. See The False Statements Accountability Act of 1996,
Pub. L. 104-292, 110 Stat. 3459, § 2. Thus, if that exemption applied to
statements made to a probation officer, Morrissey could not have been
convicted on that basis. Although Morrissey was not as creative as Hor-
vath in his legal arguments, the facts of that case are indistinguishable
from the facts of this case for our purposes.
3690                 UNITED STATES v. HORVATH
   Words in a statute should be given “their ordinary, contem-
porary, common meaning unless they have been otherwise
defined.” United States v. McNeil, 

, 572 (9th Cir.
2004) (citation and internal quotation marks omitted). The
majority correctly holds the word “submitted” does not “re-
quire that a statement must be submitted ‘directly’ or ‘person-
ally’ to a judge.” 

. Thus, a party is
protected by § 1001(b) when he submits a document or state-
ment to a docketing clerk who then passes that statement or
document, untouched by evaluation or comment, to the judge.
Unlike the docketing clerk, who cannot comment on the parts
of papers filed which lack credibility, the probation officer is
instructed to do just that. The majority’s reasoning, however,
extends the exemption beyond what the statutory language
can bear. By equating a probation officer with a judge or mag-
istrate, the majority forgets the completely different role each
plays.

II. The probation officer is not a mere conduit for
information.

   The majority’s sole rationale for disregarding the unambig-
uous language of the statute is its characterization of the pro-
bation officer as nothing more than a mere conduit of
information to the judge.2 For this novel proposition, the
majority cites—nothing. Why? Because there is no authority
for stating the probation officer is merely “a conduit.” It sim-
ply is not accurate. The probation officer is required to inves-
tigate the truth of the defendant’s statements and tell the judge
if his investigation reveals facts that undercut the defendant’s
representations. A conduit is not someone who verifies or
refutes assertions made by the defendant. A conduit is not
someone who independently investigates facts, interviews
witnesses, and comments upon the information. No, a conduit
is someone who simply relates what the defendant says, with-
  2
   A conduit is defined as “[a] means by which something is transmitted.”
The American Heritage Dictionary 394 (3rd ed. 1992).
                   UNITED STATES v. HORVATH                   3691
out comment. The Dow Jones ticker tape is a conduit; the
Wall Street Journal is not. As Judge Rymer writes in her
forceful dissent, “nothing . . . makes the probation officer a
courier pigeon.” 

(Rymer, J., dissenting).

   Federal Rule of Criminal Procedure 32 mandates that, with
very limited exceptions, the probation officer must conduct a
presentence investigation and write a report of his findings.
Fed. R. Crim. P. 32(c). The rule contemplates that the defen-
dant may object to the information the probation officer
includes, or omits, from the report. 

32 specifically anticipates that a probation officer will
make factual findings and omit irrelevant or false information.
For this reason, it requires the probation officer to give a copy
of the PSR to the defense and prosecution at least 35 days
before sentencing so that the parties may object. 

probation officer’s recommended findings are so impor-
tant that “[a]t sentencing, the court may accept any undisputed
portion of the presentence report as a finding of fact.” 

also United States v. Manarite, 

,
1419 & n.18 (9th Cir. 1995) (holding the defendants waived
their objections to the PSR by withdrawing the objections at
the sentencing hearing).

  Indeed, the probation officer supplies the judge not only
with information, but also with sentencing recommendations:

    [A] probation officer’s role in guidelines sentencing
    goes beyond adding and subtracting points:
    “[N]othing will preclude the probation officers from
    giving departure recommendations (up or down) to
    district judges for their consideration.” 

    (emphasis added); see also United States v. Belgard,
    

, 1496 (D. Or. 1988) (“The proba-
    tion officer furnishes not information alone, but also
    his or her insight into the matters covered by the pre-
    sentence report. The probation officer’s role includes
3692               UNITED STATES v. HORVATH
    . . . offering a recommendation as to the ultimate
    sentencing decision of the judge.”).

United States v. Sifuentez, 

, 1049 (9th Cir. 1994)
(emphasis in original).

   Not only must the probation officer give his report to the
defendant in advance of sentencing so that the defendant has
an opportunity to formulate his objections, the court may even
permit the defendant to present evidence in support of his
objections at the hearing. Fed. R. Crim. P. 32(e)(2). If the
defendant objects to the PSR, the district court must either
rule upon the objections or state on the record that it did not
consider the disputed portion of the PSR in determining the
sentence. 

e.g., United States v. Bussell,

, 965-66 (9th Cir. 2007) (reversing and remand-
ing in part for a new sentencing hearing because the district
court did rule upon objections to the amount of loss calculated
in the PSR); United States v. Herrera-Rojas, 

,
1142-43 (9th Cir. 2001) (reversing and remanding for new
sentencing where the district court failed to rule on, or even
mention, the defendant’s objections to the PSR).

   The procedures outlined in Rule 32 have been used in many
of our cases where the defendant objected to the PSR. See,
e.g., United States v. Ochoa-Gaytan, 

, 841-42
(9th Cir. 2001) (after defendant objected, the probation officer
amended the PSR and recommended the defendant be given
an additional downward departure for acceptance of responsi-
bility); United States v. Maldonado, 

, 1049-50
& n.3 (9th Cir. 2000) (affirming a conviction and holding the
district court did not violate the rule it must resolve all objec-
tions to the PSR because no matter was controverted); United
States v. Gonzales, 

, 987 (9th Cir. 1994) (holding,
inter alia, the district court erred in not granting a downward
departure for acceptance of responsibility as recommended in
the PSR).
                      UNITED STATES v. HORVATH                         3693
   Making recommendations to a judge regarding both legal
and factual matters is hardly what a mere conduit does, and
yet it is the everyday job of a probation officer. See, e.g., Bus-

; 

;

& n.3; 

. I entirely agree with the majority that in the end it is up
to the district court to decide factual disputes, and that a pro-
bation officer has a duty to present all relevant information in
an organized, objective report. Nonetheless, this does not
make him a conduit.

III. All facts in the PSR must have sufficient indicia of
reliability.

   Judge Graber states in her concurrence that while other
information must bear sufficient indicia of reliability to be
included in the PSR, there is no such requirement for state-
ments made by the defendant. Underpinning the panel’s deci-
sion seems to be the assumption that the probation officer is
required to pass on to the judge the defendant’s statements
about his military service, family situation, education, etc., all
without comment or cavil.3 This assumption ignores the
  3
    My concurring colleagues find it “hard to imagine what the dissent
envisions” the probation officer should do if defendant makes a statement
about his personal history that is shown to be false. Concurrence at 3685.
But it’s not so hard; I’m happy to help out with a few examples: Let’s say
defendant tells the probation officer that he was employed as a professor
of nuclear physics at Cal Tech. for a number of years, or that he is a virtu-
oso pianist who had frequent curtain calls at Carnegie Hall, or that he is
the former Governor of California. And let’s say these statements turn out
not to be true. The probation officer would not list defendant’s personal
history as being a “nuclear physicist,” “concert pianist” or “Governor of
California,” because those occupations are simply not part of his personal
history; they are the delusions of someone who is mentally ill or (as in
Horvath’s case) the fabrications of a liar. If there were some genuine dis-
pute as to whether defendant was, in fact, a nuclear physicist, the proba-
tion officer should list it as part of the defendant’s personal history and
express his doubts. But pure fabrications with no support anywhere except
in the defendant’s imagination, are not facts; they are precisely the kind
of detritus the probation officer is expected to weed out.
3694                  UNITED STATES v. HORVATH
express standards to be applied to all information included in
the PSR.

   The duties of the probation officer in compiling the PSR
are detailed in Volume 10, Chapter 2 of the Probation Manual
published by the Administrative Office of the Courts. This
manual describes in great detail what qualifications a proba-
tion officer is required to have, and exactly how a probation
officer is to prepare the presentence investigation report. See
The Presentence Investigation Report; Office of Probation
and Pretrial Services (Rev. March 2006) [hereinafter PSR
Manual], available at http://jnet.ao.dcn/img/assets/5661/
Publication107March006.pdf (last visited March 17, 2008).
This Manual, along with Rule 32 and the Sentencing Guide-
lines, makes clear the standards to be applied to all informa-
tion included in the PSR:

     As a general rule, based upon the officer’s conclu-
     sions from the presentence investigation, the report
     contains only information that the probation officer
     believes to be accurate. The objective is to produce
     information that the court may rely upon at sentenc-
     ing.

   If the probation officer believes the defendant tried to deceive him, then
the deception becomes a fact that the probation officer would have reason
to include in the report—but not as part of defendant’s personal history,
rather in the portion of the report dealing with defendant’s character or
acceptance of responsibility. However, the relevant fact being reported
isn’t defendant’s purported experiments with fusion in a bathtub, but his
mendacity to the probation officer. Then, again, the officer may decide the
defendant intended no deception, but was just trying to be funny, or had
not taken his medications. In that case, the probation officer might well be
justified in saying nothing at all on the matter, or in suggesting that the
court might want to order a psychiatric evaluation. But that is a decision
the probation officer must make based on his professional judgment,
which is why it is so very important to ensure that his judgment is not con-
founded by defendants who lie.
                  UNITED STATES v. HORVATH                     3695
                       *    *     *

    Standard of Proof

    While the court may consider a vast amount of infor-
    mation in determining an appropriate sentence, it is
    important that the probation officer distinguish
    between information that is factual, inferred, or
    alleged . . . information should have a “sufficient
    indicia of reliability to support its probable accura-
    cy.”

PSR Manual III-1 to III-2 (emphasis added); see also
U.S.S.G. § 6A1.3 cmt. These standards are not limited to
hearsay evidence. They apply to all information included in
the PSR. Moreover, the probation officer must independently
verify all information supplied by the defendant or others.
PSR Manual at II-17. In other words, the probation officer is
never required to take a defendant’s statement at face value.

   Judge Graber states in her concurrence that this standard of
proof does not apply to statements made by the defendant.
The Sentencing Guidelines, however, make no such distinc-
tion:

    (a) When any factor important to the sentencing
    determination is reasonably in dispute, the parties
    shall be given an adequate opportunity to present
    information to the court regarding that factor. In
    resolving any dispute concerning a factor important
    to the sentencing determination, the court may con-
    sider relevant information without regard to its
    admissibility under the rules of evidence applicable
    at trial, provided that the information has sufficient
    indicia of reliability to support its probable accuracy.

    (b) The court shall resolve disputed sentencing fac-
    tors at a sentencing hearing in accordance with Rule
    32(i), Fed. R. Crim. P.
3696              UNITED STATES v. HORVATH
U.S.S.G. §6A1.3 Resolution of Disputed Factors (Policy
Statement).

  Nowhere in the Federal Rules of Criminal Procedure, the
Sentencing Guidelines, or the PSR Manual does one find any
requirement that the probation officer relay inaccurate infor-
mation to the judge simply because the defendant was the
source of that information. Instead, when interviewing a
defendant about his personal history and characteristics:

    [t]he probation officer is responsible for gathering all
    pertinent facts about the defendant and the offense,
    verifying the information gathered, interpreting and
    evaluating the data, applying the facts to the advi-
    sory guidelines and statutes, and presenting the
    information in an organized, objective report.

PSR Manual at II-1 (emphasis added).

   Regarding military service, far from stating that the proba-
tion officer must take the defendant’s word for it, the PSR
Manual states that the probation officer should review the
defendant’s DD Form 214 to verify the information relevant
to the defendant’s service. 

   To corroborate information given to him, the probation
officer generally conducts a home visit; interviews third par-
ties who know the defendant; collects documentation of
alleged facts; investigates the underlying offense by examin-
ing the case file; interviews victims for victim impact state-
ments; gathers information regarding all prior convictions;
and may even interview witnesses to the crime, federal
agents, and state or municipal police. 

to II-27.

   In the event the probation officer cannot corroborate infor-
mation given to him by the defendant, but believes it to be
credible, then the probation officer must say the information
could not be verified in the PSR. PSR Manual III-1 to III-3.
                      UNITED STATES v. HORVATH                        3697
If the probation officer doubts the veracity of such informa-
tion, he can either: (1) report that the defendant relayed infor-
mation regarding his military service, education level, etc.,
but that the probation officer has not included such informa-
tion in the PSR because it does not have “sufficient indicia of
reliability”, or (2) include the defendant’s statements, and add
in the probation officer’s own reasons why he does not think
the information is reliable. What the probation officer cannot
do is parrot the defendant’s statements without comment,
unless the probation officer “believes to be accurate” what the
defendant has stated. PSR Manual III-1.

   Given that the information is made available to both parties
35 days before sentencing, the defendant has plenty of oppor-
tunity to object to either the omission of the defendant’s state-
ments, or to the probation officer’s comments. Fed. R. Crim.
P. 32(e)(2), (f). At the sentencing hearing, the defendant has
an opportunity to tell the judge any information he thinks the
judge should consider that the probation officer left out of the
PSR, but that information will not have the imprimatur of the
probation officer’s investigation.

  Here, it is understandable that the probation officer deter-
mined Horvath’s statement was reliable, because Horvath pro-
vided the probation officer with specific information such as
rank, title, and base camp. 

. Hor-
vath had a set of “dog tags” with his name on them. 

father told the probation officer the same lie. 

all of this bogus information, the probation officer chose
to include the information about the Marines in the PSR
because he found it reliable, although unverified.4
  4
   The probation officer in this case is not at fault for failing to uncover
Horvath’s fraud before sentencing. He did what he was supposed to do.
He requested corroborating documentation from the Armed Services; the
information simply arrived too late. No, I do not fault the probation offi-
cer. I fault Horvath.
3698              UNITED STATES v. HORVATH
   Even if Judge Graber is correct and the probation officer
must relate all the defendant’s statements to the judge, he is
still not a conduit regarding those statements because he will
also investigate their veracity and relate his findings, which
may contradict the defendant’s statements. Unlike the proba-
tion officer, the court reporter can neither add to or comment
on the defendant’s statements. This shows the basic difference
between an investigator (the probation officer) and a conduit
(the court reporter).

  Because the trial judge does not act as an independent
investigator, he must be able to rely on the probation officer’s
ability to collect accurate information. Equating lying to a
probation officer with lying to a judge overlooks the differ-
ences in the roles of each person. A judge evaluates the infor-
mation given to him in court without further investigation and
makes a sentencing determination. He does not conduct his
own investigation; he does not interview witnesses outside of
court; he does not independently verify information given to
him. Instead, he must rely on the probation officer to investi-
gate and verify information.

IV. The majority’s holding encourages defendants to lie
during the presentence investigation.

   The PSR is especially important in cases such as this one,
where the defendant pleaded guilty and no details of the crime
came out at trial. There are no adequate alternatives to 18
U.S.C. § 1001(a), under which the government can hold
accountable those defendants who lie to probation officers
during the presentence investigation. A defendant is not under
oath when he speaks to a probation officer, thus the perjury
statute does not apply. See 18 U.S.C. § 1621. The courts need
18 U.S.C. § 1001(a) to keep criminal defendants and their
attorneys from lying to probation officers, and other federal
officers such as FBI agents.

  The majority obviously thinks the Sentencing Guidelines
sufficiently discourage defendants from lying, rendering lia-
                  UNITED STATES v. HORVATH                 3699
bility under 18 U.S.C. § 1001(a) unnecessary. We know this
is not true. If it were, Horvath never would have concocted
his elaborate story of serving on behalf of our country with
valor—right down to the fake dog tags and the beguiling tale
of his fake Purple Heart. Under U.S.S.G. § 3C1.1, a defen-
dant’s sentence can be enhanced by two levels if his lie is dis-
covered prior to sentencing. Though § 3C1.1 may act as a
deterrent, this case demonstrates the difficulty a probation
officer may have in verifying the information given by the
defendant prior to sentencing. Here, the probation officer
attempted to get the Marines to verify Horvath’s service, but
did not receive the information proving Horvath was a fraud
until after Horvath’s sentencing hearing.

   The majority purports to limit its holding by explaining that
a defendant cannot be prosecuted under § 1001(a) when he
lies to a probation officer about information that is material.

. The majority finds Horvath’s tale
about the Marines was material because the government
argued it was material misinformation and therefore prohib-
ited under 18 U.S.C. § 1001(a). This finding implies that any
statement made to a probation officer, for which one could be
prosecuted under § 1001(a), is also immune under § 1001(b),
because the information is material. In other words, the
majority does not limit its holding at all.

   A sentencing judge, charged with the duty of determining
the defendant’s appropriate sentence, must be able to rely
upon the information contained in the PSR. To maintain the
integrity of the PSR and the sentencing system, defendants
who lie to and manipulate probation officers must be held
accountable. Stretching the protection of § 1001(b) to defen-
dants such as Horvath contravenes this purpose.

  For these reasons, I respectfully dissent from the denial of
rehearing en banc.
3700              UNITED STATES v. HORVATH
KOZINSKI, Chief Judge, with whom Judges KLEINFELD
and TALLMAN join, dissenting from the order denying the
petition for rehearing en banc:

   I join Judge Bea’s well-reasoned dissent. I write separately,
however, because I don’t see the point of Judge Graber’s spe-
cial concurrence. Judge Graber makes her stand on the claim
that probation officers must always, and without exception,
report defendants’ false statements to the district court. Gra-
ber Concurrence at 3684. I think Judge Bea has the better of
this argument, see Bea Dissent at 3690-93, but let’s pretend
Judge Graber is right: So what? The probation officer, after
all, has other duties. He’s not like a court reporter whose only
responsibility is to take down what people say and transmit it
verbatim. The probation officer also has the independent duty
to figure out the truth and so advise the court. See Bea Dissent
at 3693-98. The probation officer is therefore not simply an
extension of the court, even if he’s required to report all of
defendant’s false statements, as Judge Graber maintains. The
probation officer has a separate role to play as an investigator
and truth-finder.

   Section 1001 is designed to protect precisely this investiga-
tive function. If probation officers can’t count on being told
the truth, this will increase the work they must do to ensure
that the court gets accurate information. And not just with the
few who lie, but also with the many who tell the truth,
because the probation officer can’t be sure which is which. As
we explained almost fifty years ago, section 1001 protects
government agencies “from the perversions which might
result from the deceptive practices proscribed.” Pitts v. United
States, 

, 358 (9th Cir. 1959). The threat of sec-
tion 1001 liability helps government agencies rely on the
accuracy of statements made to them. Indeed, section 1001
“serve[s] the vital public purpose of protecting governmental
functions from frustration and distortion through deceptive
practices.” Ogden v. United States, 

, 742 (9th
                   UNITED STATES v. HORVATH                 3701
Cir. 1962). This keeps agencies from wasting scarce resources
in chasing down the truth.

   I can see no reason—and the panel offers none—why we
should treat a probation officer differently from any other fed-
eral agent. We have applied section 1001 to a whole host of
federal agencies, such as the Federal Housing Administration,
Preuit v. United States, 

, 277-78 (9th Cir. 1967),
and the Atomic Energy Commission, 

.
That a probation officer reports to a judge rather than an exec-
utive branch official doesn’t make any difference, because the
probation officer (just like other investigating government
agents) has an independent duty to determine the truth. If the
statute expressly exempted statements made to probation
officers—as it exempts statements made to judges and magis-
trates, 18 U.S.C. § 1001(b)—we would have a different situa-
tion. But it doesn’t, so the case turns on whether the probation
officer is merely a proxy for the judge or magistrate. Since the
probation officer clearly has an independent role to play, quite
aside from any function he may serve as the conduit to a judi-
cial officer, the whole controversy about whether he is a
proxy is entirely beside the point. Thus, even if Judge Graber
were right in what she says in her concurrence, it would fall
short of justifying the panel’s result, just as the panel’s opin-
ion itself falls far short.
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