Making False Statements Under 18 U.S.C. 1001: How the Charge Works.

Perjury charges (i.e. under 18 U.S.C. Section 1621) generally require that the defendant had been sworn in under oath. This is not the case for charges under Section 1001. Similarly, federal agents do not have to warn their interviewees that providing false statements, concealing information, or otherwise misrepresenting material facts to federal law enforcement can be a violation of Section 1001.

Section 1001 can apply to brief and informal conversations with federal agents, not even in interviews. Any statement that meets the definition of a “statement” under the statute that is made in the presence of a federal agent, and that is materially false or omits material information, can potentially result in a Section 1001 prosecution.

A Section 1001 offense is a federal felony carrying up to five years of imprisonment, a fine of up to $250,000 (or twice the amount of gross gain or loss), and/or both.

Miranda warnings have to do with custodial interrogations. The fact that a conversation was consensual and not an interrogation under federal law removes the requirement for a Miranda warning. The fact that an agent failed to advise an interviewee that any false statements may violate Section 1001 does not have any legal effect.

A qualifying statement under Section 1001 can be oral, written, signed, or unsigned. Similarly, Section 1001 applies to volunteered information as well as documents and information that are legally required to be filed with government agencies.

Finally, at the time of giving an answer, the agent may be able to determine what the truth is. However, this does not help with a potential violation. The statute doesn’t say that “making material false representations and that deceive a federal agent” is required. It says making a material false statement. Therefore, the fact that an agent already knows an answer is false is not a defense.

What must prosecutors prove to convict someone under 18 U.S.C. 1001?

Under typical federal jury instructions for an offense charged under 18 U.S.C. Section 1001(a)(2), there are five separate issues the federal jury must resolve:

“Are the statements made by the defendant material, and, if they are, are they also false, fictitious, or fraudulent?”

“Did the defendant know the material statement, or combination of material statements, was false, fictitious, or fraudulent?”

“Did the defendant act willfully?”

“Did the statement(s) come within the jurisdiction of the United States or is there a nexus to the jurisdiction of the United States?”

If the jury determines that the answers to these questions are all “yes,” then the defendant can be convicted under Section 1001.

Regarding the first question, a statement is “material” if it has a “natural tendency to influence, or is capable of influencing, the decision of the decisionmaking body to which it was addressed.” As noted, it doesn’t need to have actually influenced the executive branch’s decision; it just has to be capable of having this effect. This is a very broad standard, and statements that would not be considered material in other types of cases can still be considered material for purposes of Section 1001.

For example, “I don’t know about that” can be a material statement if this statement provides a misleading answer to a material question. The fact that the statement “I don’t know about that” could not have possibly influenced the agent’s decision because the agent knew the answer to the question is irrelevant under this standard.

For a long time, federal courts held that whether a statement was material was a legal determination that should be made by a judge. However, the Supreme Court changed this in the case of United States v. Gaudin, 515 U.S. 506 (1995). The Supreme Court held that “whether a statement was made ‘//matters//’ [is] a factual issue for the jury.” This means that if a jury finds that any statement was material, then the case can result in a conviction under Section 1001.

As we discussed above, 18 U.S.C. Section 1001(a) states that whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully “makes any materially false, fictitious, or fraudulent statement or representation,” commits a federal felony.

So, in short, any statement that is material and false, fictitious, or fraudulent can result in a Section 1001 conviction. This includes:

Can I be charged if I honestly misremembered or answered ambiguously?

Even if your statements to federal agents were false, this does not necessarily mean that you committed a violation of Section 1001. The evidence must support the elements of knowledge and willfulness as well.

Knowledge

Prosecutors must be able to prove that you knew your statement(s) were false. If you answered a material question without knowing the truth, the factual answer may be false, but the statement itself is not.

Willfulness

Here, federal authorities are split. There are two different versions of willfulness that may apply. The first requires that the defendant must have acted with “the knowledge that the act was unlawful.” The second version requires simply that the defendant intended to make a material false statement. As federal prosecutors may seek to prove the case under either definition of willfulness, we always prepare for the harder version of willfulness.

Honest Mistake, Faulty Memory, or Confusion

If your false statements were based on an honest mistake, faulty memory, genuine confusion, or the fact that you simply did not recall what you had forgotten, then you should be able to defeat an element of knowledge or willfulness.

Ambiguity, Literally True Answers

A literally true answer does not violate Section 1001, no matter how evasive. So, if you answered the agents’ questions truthfully and fully, but evasively, you have not committed an offense.

Ambiguity, Ambiguous Questions

The same is true where an answer is made to an ambiguous question.’”

Recanting a False Statement

Section 1001 contains no general statutory recantation defense. This means that correcting a false statement does not provide a statutory defense against a Section 1001 prosecution. However, promptly correcting a false statement can raise questions about the prosecutor’s ability to prove a defendant’s willful intent to a jury.

Can a simple denial of guilt be charged as a false statement?

In a 1998 case called Brogan v. United States, the Supreme Court addressed whether a simple denial of guilt constitutes a false statement under Section 1001. For decades previously, lower courts and prosecutors had been using a judicially created “exculpatory no” exception. Under this exception, an interviewee’s response of “no” to an agent’s question of “Do you [do illegal activity]?” did not constitute a false statement. It was considered an “exculpatory no,” and so prosecutors would charge defendants based on their subsequent answers.

The Supreme Court rejected this exception in Brogan v. United States, 522 U.S. 398 (1998). The Court noted that while such a prosecution seemed “at first glance to be overly harsh,” there are several factors that distinguish it from other criminal proceedings. For one, the interviewees remained free to invoke the privilege against self-incrimination and decline to answer during an interview with federal agents. While “obviously the Fifth Amendment prohibits forced confessions,” the Supreme Court noted “there was nothing to suggest that [the] privilege against self-incrimination extends to the area of providing false statements in noncustodial interrogations.”

After Brogan, an “exculpatory no” is no longer a statutory defense. With this in mind, a simple but false denial of guilt can support a Section 1001 conviction.

With that said, federal prosecutors generally will not bring a case under Section 1001 for a false denial of guilt in its entirety. As a matter of current Department of Justice (DOJ) policy, “a plain denial of guilt should not be charged by itself under Section 1001(a)(2).” Prosecutors will typically charge a false denial of guilt, but only when the denial itself is accompanied by additional statements. According to the DOJ’s Justice Manual, “federal prosecutors have substantial experience with the fact that defendants’ subsequent voluntary false statements often provide a much better opportunity for jury convictions than if the prosecutor relied solely on a false denial of guilt.”

Of course, this Justice Manual is DOJ policy, and DOJ policy does not usually create a legally enforceable right for defendants. As such, any prosecutor can decide to pursue a Section 1001 case based on a false denial of guilt alone, particularly if there are records available that explicitly show that the defendant lied about their involvement in a crime. The Justice Manual section does not state that “the la l.” It states, “Do not charge simple denial of guilt under Section 1001(a)(2) if that denial is the only false statement made.” It continues, “If a statement made by the person is materially false and the statement is the result of criminal culpability, prosecution of the underlying offense is preferred.” And, with the Justice Manual’s policy not being the same as the Supreme Court’s rule in Brogan, the Justice Manual does not limit the scope of prosecutors’ ability to pursue a charge under Section 1001.

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

Can I just stay silent when federal agents ask me questions?

While, strictly speaking, refusal to answer a federal agent’s question is not itself a false statement within the meaning of 18 U.S.C. Section 1001(a)(2), in certain situations, a purely silent refusal to answer a federal agent’s questions can expose an individual to other risks.

Even in consensual noncustodial interviews, a participant has the right to decide to end the interview at any point, and to consult counsel if he or she decides to do so. As generally discussed above, while the fact that an interview is consensual and noncustodial does not afford a general right to have counsel present during the conversation, a person who is being asked questions by federal law enforcement can still decline to provide answers, choose to preserve his or her right to a jury trial by consulting counsel as necessary, and stop answering questions whenever necessary.

If a person asks to speak with counsel, noncustodial agents may, in some cases, be permitted to continue to ask the questions. Federal district court cases have stated this is true, citing both federal district court and the U.S. Supreme Court’s views that “the privilege against self-incrimination did not extend to the pre-arrest, noncustodial interrogation,” and, so, “the right to speak to counsel and the right to remain silent may be limited in some noncustodial scenarios.” Even though noncustodial federal agents generally can continue to ask questions after the interviewee asks to speak with counsel, the interviewees themselves still have the privilege not to answer questions they believe could lead to a charge of a crime.

Again, we refer you to the United States Attorney’s Manual. With respect to voluntary interviews conducted without a warrant and with a subject who is in noncustodial status, “all voluntary interviews should ideally be conducted by two prosecutors, although this is not a requirement.” With respect to voluntary interviews, “the interviewee should be informed of their right to speak to an attorney before answering any questions.” While this DOJ policy does not make requests for counsel binding on federal agents, we strongly recommend that our clients assert this right to speak to counsel in order to best protect their interests.

It is important to note, however, that while refusing to answer a question isn’t a “false statement” under 18 U.S.C. Section 1001, the statute also covers “conceal, or cover up by any trick, scheme, or device any material fact.”

Unlike false statements, which can be made affirmatively or by omission, for a “concealment” charge there is a duty to disclose what is being concealed. If the person being questioned does not have the duty to disclose the material fact he or she had in mind, then, as generally discussed above, the person’s right to remain silent during the interrogation process protects her. With that being said, “concealing” also requires more than just silence. There are numerous cases that hold that “making a misrepresentation to federal agents is a form of concealment.”

When asked to fill out federal forms, the option of staying silent generally will not be available. You will be required to answer all questions. When required, one can make a formal or substantive silence, but you must not leave any question unanswered.

There are various circumstances under which a person may have a duty to disclose something to federal authorities. For example, a company that is aware of a federal investigation in its industry or that has a duty to report specific types of data, such as financial, environmental, or security data, may have a duty to report the information.

But unless you have already committed the crime, or unless you have a pre-existing legal obligation to come forward, you generally do not have to volunteered information to federal agents.

Does Section 1001 apply if I never spoke to a federal agent?

Section 1001 has very broad jurisdiction. Under Section 1001, a federal agency has jurisdiction if that agency is authorized to carry out functions related to the subject matter in question. There is no requirement that a defendant have awareness of the fact that the matter was under federal jurisdiction. Additionally, under Section 1001, a false statement does not have to be made directly to the federal government, nor does it have to be made to a federal agent. The defendant can communicate the false statement to a private entity. As long as that private entity communicates the statement to a federal agency (as discussed below), and as long as the federal agency has jurisdiction over the subject matter, then Section 1001 jurisdiction can be established. For example, some examples of this include making false representations to:

• the administrator of a university receiving federal research funding
• a bank official during a loan application process
• a corporate executive reporting to shareholders in a publicly traded company
• the head of a local building department

If these private individuals or entities communicate the defendant’s false statements to the federal government in the course of their duties, or if the federal government conducts a federal inquiry with respect to the issue at hand, then federal jurisdiction can be established under Section 1001.

While many federal charges depend on the federal government’s power to regulate interstate commerce, this is not the case with Section 1001. Under Section 1001, jurisdiction is established because the executive agency has the authority (i.e., it is one of that agency’s authorized federal functions) to investigate the subject matter. As such, even when documents are not presented to a federal agency, this does not necessarily mean that they are exempt from Section 1001 prosecution. For example, Section 1001(a)(3) reads in relevant part: “makes any document, paper or electronic form containing any materially false, fictitious or fraudulent statement or representation, knowing the same to be false, fictitious or fraudulent, and presents the same to any department or agency of the United States.”

There are many examples of this in practice. A very common example involves subcontractors. When a subcontractor makes a false statement to its general contractor, and that general contractor then submits that statement in a certification to the federal government, the false statement will still qualify under Section 1001’s provisions. The general contractor’s submission of the false certification to the federal government is the act of “presenting the same to any department or agency of the United States.”

How does the government prove what I said in an interview?

When federal agents, particularly those with the Federal Bureau of Investigation, interview witnesses or suspects, they document the exchange using what is called a Form FD-302 (often referred to simply as an FD-302). The FD-302 is an agent’s summary of the interview, and it is based on an agent’s notes. Agents’ notes are usually not shared with the defense. Similarly, FD-302s are summaries, not transcripts, and an agent typically will not allow the interviewee to review the report before finalizing it. Rather, FD-302s summarize what happened, but they do not contain verbatim transcriptions of everything said during the interview. This makes FD-302s extremely important pieces of evidence. If an FD-302 includes a materially false statement, the government can charge you under 18 U.S.C. Section 1001. When we defend clients against Section 1001 charges, this can present significant difficulties because the government will be relying on the agent’s summary. To rebut the government’s FD-302, a defendant can try to use other evidence. For example, he or she can try to:

• Compare the summary to any recordings or notes that are available.
• Compare the summary to any other witnesses’ recollections and testimony.
• Raise the point that an FD-302 summary is just an agent’s summary, not a transcript.
• Raise the point that there was a conflict between the agents’ recollections and the witness’s account.

But, once a witness has been interviewed by federal law enforcement, how will his or her words be used? If the witness is acquitted or the case drops, federal authorities will likely consider the witness’s interview notes for other cases. If the witness is prosecuted, the witness’s interview statements in the FD-302 will most likely serve as admissions of guilt.

Wait, but an FD-302 is not even the witness’s statement. It’s the agent’s summary. So, then is it automatically considered the witness’s statement that the witness has adopted, or what? No, this is incorrect. When the agent writes an FD-302, it is the agent’s notes. The witness’s statement is contained in the FD-302. The statement itself is not the witness’s statement of a crime, unless the agent makes the statement by herself.

How common is it to record federal interviews? The Justice Manual states, “whenever possible, federal agents should record interviews.” The Manual also mentions federal cases that require recording of the interview:

• Interview of a child, teenager, or individual under a circumstances that could lead to unnecessary delay.
• Interview is part of a custody hearing.
• Interviews that a federal district court is likely to challenge as being noncustodial or for whom it is appropriate to protect witnesses by making recordings.
• Cases in which a witness has not adopted a previously recorded interview or statement in a prior interview.
• Cases that specifically call for recording a witness interview and for whom appropriate.

So, from the Justice Manual, so federal agents are only supposed to record a limited subset of their interviews, why don’t federal agencies record every interview? The most common reason for not recording interview subjects is that it could diminish the success of the interview, meaning the interviewer may struggle to uncover critical information that could be used to successfully prosecute an offense in federal court. Thus, federal law enforcement often prefers to take notes in order to be in better control of the interview and to make subsequent prosecutions easier.

What is the sentence for lying to a federal agent?

The Maximum Sentence Under Section 1001

A conviction for the federal crime of lying to federal law enforcement agents carries the potential for up to five years of prison time. The ordinary statutory maximum is found under Section 1001. As noted, “The ordinary statutory maximum for 18 U.S.C. Section 1001 is five years, but an eight-year statutory maximum sentence can apply to certain enhanced offenses.” These enhanced offenses include those that involve:

• Terrorism;
• Sex offenses and trafficking offenses involving the commercial sexual exploitation of children;

And other offenses described in certain federal sentencing guidelines. Specifically, these enhanced offenses are those that are enumerated under U.S.S.G. Chapter 109A (offenses for which the person was convicted under 18 U.S.C. Section 2251, 2251A, 2252, 2252A, or 2252B), U.S.S.G. Chapter 109B (offenses for which the person was convicted under 18 U.S.C. Section 1591(a) or 1591(b)(2)), U.S.S.G. Chapter 110 (offenses for which the person was convicted under 18 U.S.C. Section 1591(b) or 1595(a) or (c)), U.S.S.G. Chapter 117 (offenses for which the person was convicted under 18 U.S.C. Section 1594, 1595, 1597, 1598, or 2251), and 18 U.S.C. Section 1591.

Under these exceptions, the eight-year statutory maximum includes these offenses as well. This statutory maximum for §1001 is in addition to fines of up to $250,000 (or double the gross gain or loss) in federal district court.

The Minimum Sentence Under Section 1001

There is no mandatory minimum prison sentence under 18 U.S.C. Section 1001. However, even if a minimum prison sentence is not mandatory, probation or home confinement may not always be an option either. That said, individuals whom judges deem to be in a good position to receive probation or home confinement may be eligible for these sentencing alternatives, depending on the circumstances involved.

The Statute of Limitations for Section 1001

With respect to federal offenses, the statute of limitations refers to the length of time the federal government has to bring charges in a Section 1001 prosecution. Under general federal law, this is five years. This statute of limitations refers to the time of commission of a federal crime. When multiple offenses are charged and these offenses occur over a different timeframe, this statute of limitations does not apply the same way and requires closer legal analysis.

So, when thinking about whether you may be in jeopardy of facing a charge under Section 1001, you will need to know what you said, the nature of the event, and the timeframe. These are all crucial factors in assessing the risks and in building a defense against a potential Section 1001 prosecution.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.