False statements
Federal law features prohibitions against falsifying and obstructing federal officials in their investigations. No provisions does this more broadly than Section 1001 of the federal criminal code, which makes it a felony to, “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully” falsify, conceal, or cover up… a material fact, make any materially false statement or representation or make or use any false writing or document.[1]
Other federal statutes make crimes of possessing false papers to defraud the government, making false bank records and entries, impersonating officers of the United States and similar deceptive behavior. These are part of the broad category of “process” crimes that interfere with government procedures. These also include perjury, contempt of court and failure to appear for trial.[2] Prosecution of famous figures such as Martha Stewart and former Illinois governor Rod Blagojevich have been based, at least in part, on these false representation crimes.[3]
Justice Ruth Bader Ginsburg observed that Section 1001 gives “extraordinary authority” to prosecutors to “manufacture crimes.”[4]
The required elements of a Section 1001 conviction are:
- The defendant made a false statement or concealed the truth in any matter within the jurisdiction of a government agency or department, such as the IRS or FBI. Note that there is no requirement that the statement have been made under oath or that they were made voluntarily;
- The defendant acted “willfully.” This means that the statement must have been made with knowledge of falsityandwith knowledge that it is illegal to lie to government officials.[5]; and
- The statement was “material” to the decisions of the government agency. A false statement is material if it has “a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.”[6]
In Brogan v. United States, the Supreme Court ruled that a suspected criminal defendant could be held liable under Section 1001 merely for denying guilt in response to the questioning of federal investigators.[7] Still, current Department of Justice policy is not to charge under 1001 defendants who merely falsely deny guilt in response to government questioning. Still, this exemption, based entirely on prosecutorial discretion and which could be reversed at any time without Congressional approval, does not apply when the defendant volunteers information or initiates the proceeding for her own benefit (such as for an immigration or government benefits application).[8]
Note that “concealment” of information is only criminal where there is an affirmative duty to disclose it. For example, under corporate laws like Sarbanes-Oxley, there are criminal penalties associated with failing to provide or certify financial statements or reports.[9]
Those limitations aside, Section 1001 has generally been interpreted very broadly. It has been applied to statements made to agencies who had no power make final decisions on the matter at hand[10] and even to a state benefits program simply because the state program was partially administered with federal funds.[11]
There’s also no requirement of reliance by the government on the false statement. Though the statement just be “material,” the government need not have actually been taken in, and the defendant need not have achieved any gain by making the statement as long as the statement was made in the hope of receiving some sort of benefit.[12]
Section 1001 also gives the government advantages in negotiations, as lying to government officials even in the course of arm’s length negotiations with federal agencies falls under Section 1001.[13]
Section 1001 Prosecutions: Case Studies
Because Section 1001 is so broad in scope, we can best see how it’s applied by looking at a series of prosecutions under the section in “gray area” cases.
In United States v. Pickett, in the midst of the Anthrax scare that followed the September 11, 2001 attacks, the defendant left a pile of white powder on the desk of a Capitol Hill police officer with a note suggesting that the powder was Anthrax. In fact, the note was meant as a joke and the powder was sugar. Initially convicted under Section 1001 for making false statements, the conviction was reversed by the DC Circuit. The court held that the statement was not made “within the jurisdiction of the legislative branch.” While the joke may have prompted an investigation and while it was initially thought to have been linked to the ongoing Anthrax investigation, the note was not, at the time it was made, “within an investigation or review” of the government. That its facts were similar to an ongoing investigation into suspicious powder was insufficient.[14]
In United States v. Shah, Shah bid on a government contract. The terms of the bid required him to keep his bid confidential. Though he agreed to this stipulation, he then sent his bid to another bidder. Evidence also showed that he never intended to keep his bid confidential as he had agreed to share it even before he had sent his bid to the government. Although he made no statement that was objectively “false” at the time he made it, the Fifth Circuit ruled that promising confidentiality when he knew at the time that he had no intention of keeping the promise did constitute a false statement under Section 1001. As such, his conviction was upheld.[15]
In United States v. Yermian, the defendant lied about his employment and criminal history on a Department of Defense security clearance questionnaire that was filled out for, and submitted to, his employer. Although he asserted that he did not know that the form was going to the federal government (he knew only that it was going to the employer), the Supreme Court held that such knowledge was unnecessary. Actual knowledge of federal agency jurisdiction is not required. The “knowingly and willfully” elements of the statute apply to the statement’s falsity. It does not require “knowingly” making the statement to the government.[16]
Similarly, in United States v. Green, an employee of a chemical company delivered a falsified test report to a client. This report was used by the recipient to show compliance with safety measured required by the federal Nuclear Regulatory Commission. Green’s conviction was upheld by the Ninth Circuit, who observed that “no mental state with respect to federal jurisdiction” is required. That the Nuclear Regulatory Commission might have relied on Green’s false report was enough to sustain a conviction under Section 1001.
False Claims
Federal Law also makes it a felony to “make or present” a false claim to any federal government official or department and calls for a statutory maximum penalty of five years in prison.[17] A parallel statute, entitled “Major Fraud against the United States,” punishes fraudulently attempting to obtain a federal grant, contract, subsidy, etc., of $1,000,000 or more, by up to ten years in prison.[18] Note that this latter statute does not require the presentation of a claim; it just requires committing any fraud to obtain a government benefit.
In United States v. Maher, the Fourth Circuit sustained a conviction for providing false hours worked on a government contract. The defendant admitted to falsifying the number of hours but claimed that he was entitled to the same level of compensation for other reasons. Even granting the premise that the defendant sincerely believed that his over-all bills to the government were appropriate, the court rules that the false claim statute does not require an intent to defraud. Even if he sincerely believed that he was entitled to bill what he billed, that he knowingly made false statements in the claim (the number of hours worked) was sufficient for a false claims conviction.[19]
Note that, unlike Section 1001 prosecutions, the government need not show that he false element of the claim was “material” in potentially inducing government action. Even a claim what would not tend to induce reliance by the government is covered by the statute.[20]
Perjury
Section 1621 of the federal criminal code makes it a felony to “having taken an oath before a competent tribunal, officer, or person… that he will testify, declare, depose, or certify truly… willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.”[21] Similarly, section 1623 criminalizes false declarations “in any proceeding before or ancillary to any court or grand jury of the United States.”[22]
Both crimes require testimony, which can be written or oral, that is false at the time it is made, and both require “materiality,” which means that the statement is significant. These are specific intent crimes, requiring intent to disobey the law.[23]
Distinctions between perjury and false declarations include:
- Perjury applies to testimony in any proceeding where an oath is authorized by law, not just in proceedings before courts or grand juries. For example, false testimony before Congress in a legislative hearing can be prosecuted for perjury under Section 1621, but not under Section 1623;
- Perjury under Section 1621 is subject to a unique “two witness” requirement, which we’ll discuss shortly; and
- False declarations under Section 1623 are subject to the “recantation” defense, which we’ll also discuss a bit later.
In the seminal Supreme Court case, Bronston v. United States,[24] the Supreme Court strictly construed perjury to require that the statement be an outright false one. Statements that were “merely” grossly misleading did not qualify as perjury. In Bronson, the defendant, being questioned about whether he had Swiss bank accounts, first asserted that he did not then have one. Then, to a follow-up question “Have you ever?”, he answered “The company had an account there for about 6 months.” He then answered follow-up questions by saying that he never had a nominee with a Swiss Bank Account. In fact, Bronson had a personal bank account for many years, but that had been closed before the testimony.
Though he clearly misdirected and mislead the questioner by answering the second question with an affirmative statement that the company had an account but failing to disclose his own, misleading is not enough to sustain a perjury conviction. As none of Bronston’s statements were technically false, his perjury conviction was overturned. The Bronston case was later cited by Bill Clinton’s legal team in defense of then-President Clinton’s statement under oath that he did “not recall” being alone with Monica Lewinsky.[25]
The “materiality” element of perjury requires that the false testimony have a “natural effect or tendency to influence, impede, or dissuade further investigation.”[26] As in the case of Section 1001 prosecutions, courts have interpreted materiality broadly. For example, where the subjects “good moral character” was an issue in a deportation proceeding, a false statement that he did not hold an interest in a partnership that had engaged in illegal gambling activities was material.[27] Moreover, a false statement in a court filing that “fooled the clerk of the court into accepting the “writ” for filing” was considered material even though it didn’t necessarily influence the ultimate disposition of the case.[28] Finally, the Ninth Circuit held that perjury need not be relevant to main issue being investigated by the grand jury at the time of the testimony, but could also apply to false statements on a subject that could be investigated by the grand jury.[29]
Special Rules Regarding Perjury
Perjury statutes and case law present some unique principles that are worth focusing on. Those are:
– The “two-witness” rule;
– The “recantation” defense; and
– The immunity from prosecution rule.
Though not in the statute itself, case law has established an “almost unique exception” to the general criminal law rules, called the two-witness rule, originally requiring the testimony of two independent witnesses for a perjury conviction. This was modified to allow a conviction upon the sworn testimony of one witness if that testimony was supported by proof of corroborative circumstances.[30] This “corroborative” evidence may be “circumstantial in nature.”[31] The defendant’s own prior inconsistent testimony can constitute “corroborative” evidence but is insufficient to sustain a conviction without any other witnesses. For example, when a witness testified that he has never met a person and that person testified that they had met and the defendant’s “behavior when meeting” the witness (indicating the two had previously met) was sufficient.[32]
After the Watergate scandal, Nixon aide Bob Haldeman was convicted of perjury for claiming that he did not know that hush money had been paid to those involved in the break-in until 1973. The testimony of White House Counsel John Dean that he knew of it in 1972, along with a taped discussion from 1972 between the President, Haldeman and White House Domestic Affairs Advisor John Ehrlichman discussing the raising of money to pay off the break-in defendants was sufficient to prove perjury.
The recantation rule is unique to the “false declarations” crime under Section 1623. The rule bar prosecution “where, in the same continuous court or grand jury proceeding… the person making the declaration admits such declaration to be false… if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.”[33] The purpose of this exception is to “induce witness to give truthful testimony by permitting him voluntarily to correct false statement without incurring risk of prosecution for doing so.”[34]
The recantation defense was allowed even after the grand jury had been dismissed, when the grand jury could have been recalled to further its investigation.[35] However, the defense does not work if the witness lied and then tried to recant after realizing that the lie had been discovered just to avoid prosecution.[36] Once it is “manifest to witness that his false testimony has been or will be exposed, he may no longer come under shelter of recantation provision.”[37]
Another unique aspect of perjury is its interplay with the right to remain silent under the 5th Amendment, which states that a person cannot be “compelled in any criminal case to be a witness against himself.”[38] To require a person to testify notwithstanding the Fifth Amendment, the government may grant the witness immunity from prosecution. The criminal code codifies this maneuver by stating that when a witness refuses to testify based on the privilege against self-incrimination, if the “person presiding over the proceeding” (such as the judge or prosecutor in a grand jury proceeding) communicates to the witness an [immunity] order, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination.
Where such immunity is given to the witness, “no testimony or other information compelled under the order… may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.”[39]
In United States v. Apfelbaum, the defendant was called to testify about a robbery, invoked his right to remain silent and was granted immunity in accordance with the federal immunity statute. He lied during that testimony. During his perjury trial, the government offered other (truthful) statements he made during the testimony to put his lies in context. The Supreme Court allowed this, ruling that the immunity applied only to preclude the usage of his grand jury testimony against Apfelbaum on the robbery being investigation. His other statements during the grand jury proceeding could be used against him to show that he had lied during that testimony.[40]
In our next module, we’ll look at some similar groups of crimes: those committed against the legal system. These include obstruction of justice, witness tampering and bribery.
[1] See, e.g., 18 USC § 1001
[2] Erin Murphy, Manufacturing Crime: Process, Pretext, and Criminal Justice, 97 GEO. L. J. 1435, 1439 (2009).
[3] https://www.americanbar.org/content/dam/aba/publications/criminaljustice/wcc_newsletter_fall14_false_statement_prosc.authcheckdam.pdf
[4] Brogan v. United States, 522 U.S. 398, 408 (1998) (J. Ginsburg, concurring)
[5] See Br. In Opp., Ajoku v. United States,No. 13-7264 (Mar. 10, 2014) 2014 WL 1571930
[6] Kungys v. United States, 485 U.S. 759, 770 (1988)
[7] Brogan v. United States, 522 U.S. 398, 408 (1998)
[8] https://www.justice.gov/jm/criminal-resource-manual-916-false-statements-federal-investigator
[9] See 18 USC § 1350
[10]United States v. Rodgers, 466 U.S. 475 (1984)
[11] United States v. Herring, 916 F.2d 1543 (11th Cir. 1990)
[12] United States v. Mitchell, 397 F. Supp. 166 (D.D.C. 1974).
[13] United States, 109 F.2d 181 (5th Cir. 1940).
[14] United States v. Pickett, 359 U.S. App. D.C. 205, 353 F.3d 62 (2004)
[15] United States v. Shah, 44 F.3d 285 (5th Cir. 1995)
[16] United States v. Yermian, 468 U.S. 63, 104 S. Ct. 2936 (1984)
[17] 18 USC § 287
[18] 18 USC § 1031
[19] United States v. Maher, 582 F.2d 842 (4th Cir. 1978)
[20] United States v. Saybolt, 577 F.3d 195 (3d Cir. 2009)
[21] 18 USC § 1621
[22] 18 USC § 1623
[23] United States v. Edwards, 443 F.2d 1286 (8th Cir. 1971)
[24] Bronston v. United States, 409 U.S. 352 (1973)
[25] https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/whtext120898b.htm
[26] United States v Freedman, 445 F2d 1220 (2d Cir. 1971)
[27] United States v. Larocca, 245 F.2d 196 (3d Cir. 1957)
[28] United States v Roberts, 308 F3d 1147 (11th Cir. 2002)
[29] United States v. Tyrone, 451 F.2d 16 (9th Cir. 1971)
[30] Weiler v. United States, 323 U.S. 606, 65 S. Ct. 548 (1945)
[31] United States v. Davis, 548 F.2d 840 (9th Cir. 1977)
[32] United States v. Zborowski, 271 F.2d 661 (2d Cir. 1959)
[33]18 USC § 1623(d)
[34] United States v Del Toro, 513 F2d 656 (2dCir. 1975)
[35] United States v Crandall, 363 F Supp. 648 (W.D.Pa. 1973)
[36] United States v Baldwin, 506 F Supp 300 (M.D. Tenn. 1980)
[37] United States v Denison, 663 F2d 611 (5th Cir. 1981)
[38] US Const Amend. V
[39] 18 USC § 6002
[40] United States v. Apfelbaum, 445 U.S. 115, 100 S. Ct. 948 (1980).