False Statements to a Federal Investigator

The circumstance often arises in which a false statement is made in response to an inquiry by an FBI or other Federal agent, or made voluntarily to an agent. The issue is whether such a statement is within the purview of 18 U.S.C. § 1001.

It is the Department of Justice policy not to charge a § 1001 violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government.

This policy is to be narrowly construed, however; affirmative, discursive and voluntary statements to Federal criminal investigators would not fall within the policy. Further, certain false responses to questions propounded for administrative purposes (e.g., statements to border or United States Immigration and Naturalization Service agents during routine inquiries) are also prosecutable, as are untruthful "no's" when the defendant initiated contact with the government in order to obtain a benefit.

By its plain terms, § 1001 (as it existed before it was amended in October 1996), broadly reaches "[w]hoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . .makes any false, fictitious or fraudulent statements or representations. . . ."

For example, if the false statement was volunteered to an FBI agent the Supreme Court has held that § 1001 does apply. United States v. Rodgers, 466 U.S. 475 (1984). In Rodgers the court concluded: (1) that criminal investigations fell within the term "in any matter"; and (2) that the FBI qualified as a "department or agency." In Rodgers the language "within the jurisdiction" was held to merely differentiate the official, authorized functions of an agency or department from matters peripheral to the business of that body. From Rodgers it is also clear that the term "jurisdiction," defined as the "right to say and the power to act" (Gonzales v. United States, 286 F.2d 118 (10th Cir. 1960), cert. denied, 365 U.S. 878 (1961)), should not be given a narrow or technical meaning (United States v. Fern, 696 F.2d 1269 (5th Cir. 1983)), and extends to the power to investigate. The statute has also been held to apply if the false response is made to an investigator other than an FBI agent. See United States v. Ratner, 464 F.2d 101 (9th Cir. 1972)(employee of the United States Internal Revenue Service); United States v. Mahler, 363 F.2d 673 (2d Cir. 1966)(employee of the United States Securities and Exchange Commission); Frasier v. United States, 267 F.2d 62 (1st Cir. 1959)(employee of the United States Army); Tzantarmas v. United States, 402 F.2d 163 (9th Cir. 1968), cert. denied, 394 U.S. 966 (1969)(employee of the United States Immigration and Naturalization Service).

Although § 1001 does not provide for exceptions, a number of courts have held that it does not apply to cases involving simple false denials of guilt in response to government initiated inquiries. See, e.g., United States v. Taylor, 907 F.2d 801 (8th Cir. 1990); United States v. Equihua-Juarez, 851 F.2d 1222 (9th Cir. 1988); United States v. Cogdell, 844 F.2d 179 (4th Cir. 1988); United States v. Fitzgibbon, 619 F.2d 874 (10th Cir. 1980); United States v. King, 613 F.2d 670 (7th Cir. 1980); United States v. Chevoor, 526 F.2d 178 (1st Cir. 1975). These courts have concluded, inter alia, that mere denials of guilt do not impair the basic functions of the agency to which the statement is made. But even where it is recognized, the "exculpatory no" doctrine is not applicable in situations in which the statements are more than mere denials of the accusation of criminal activity. United States v. Van Horn, 789 F.2d 1492, 1511 (11th Cir. 1986)("The exception . . . does not apply when a person attempts to affirmatively mislead a government investigation"); United States v. North, 708 F. Supp. 364, 369 (D.D.C. 1988), rev'd in part and vacated in part on other grounds, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C. Cir. 1990).

Other courts have rejected the "exculpatory no" exception to § 1001. See, e.g., United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994)(en banc); United States v. Steele, 933 F.2d 1313 (6th Cir. 1991)(en banc). In addition, a few courts have neither adopted nor rejected the "exculpatory no" doctrine. United States v. Barr, 963 F.2d 641 (3d Cir. 1992); United States v. Cervone, 907 F.2d 332, 342 (2d Cir. 1990); United States v. White, 887 F.2d 267 (D.C. Cir. 1989).

18 U.S.C. § 1001
The False Statements Accountability Act of 1996 (FSAA), Pub. L. No. 104-292, H.R. 3166 (October 11, 1996), made several changes that affect the work of United States Attorneys' Offices, including revisions to 18 U.S.C. §§ 1001, 1505, 6005, and 28 U.S.C. 1365. This section describes the changes to section 1001.

Section 2 of the FSAA revises section 1001 of title 18, United States Code. The new 18 U.S.C. § 1001, effective October 11, 1996, reads as follows:

“Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully –

falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

makes any materially false, fictitious, or fraudulent statement or representation; or

makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.

Subsection (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.

With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only in --

administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or

any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.”

The new section 1001 contains several important features. First, section 2 of the FSAA restores the Department's ability to prosecute false statements made to the judicial and legislative branches. In 1995, the Supreme Court reversed long-settled precedent in Hubbard v. United States, 115 S.Ct. 1754 (1995), and held that a court is neither a "department" nor an "agency" under § 1001. Although the Court's opinion left open the possibility that a judicial or legislative entity might still be considered an "agency" under section 1001, several courts interpreted Hubbard broadly to mean that section 1001 applies only to false statements made to the executive branch. See, e.g., United States v. Dean, 55 F.3d 640 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 1288 (1996); United States v. Rostenkowski, 59 F.3d 1291, 1301 (D.C. Cir. 1995). As of March 1997, there was pending in the District of Columbia Circuit an interlocutory appeal concerning whether the old version of section 1001, even after Hubbard, still applies to financial disclosure statements that Members of Congress filed, pursuant to the Ethics in Government Act, with the Clerk of the House of Representatives before October 11, 1996. See United States v. Oakar, No. 96-3084 (D.C. Cir.). Prosecutors therefore should not concede, in any pleadings or arguments presented in federal courts, that the old section 1001 does not apply to such statements, at least until the Court of Appeals for the District of Columbia Circuit decides this case.

The new statute effectively overrules Hubbard, and expressly provides that section 1001 covers false statements that are made to all three branches of the federal government, without regard to whether the entity may be categorized as a "department" or "agency." By including certain statutory terms (e.g., "jurisdiction" and "statement") from the former section 1001 without change, Congress intended that those terms, as reenacted, continue to carry with them the body of existing judicial constructions of those terms. For example, with respect to statements made within the jurisdiction of the executive branch, prosecutors should continue to consider all statements -- whether oral or written, and whether sworn or unsworn -- as being within the scope of the new section 1001. See H.R. Rep. No. 104-680 (July 16, 1996) at 8 ("Other than establishing materiality as an element of all three offenses, the Committee does not view the offenses defined in paragraphs (1), (2) and (3) as changing already existing case law as it relates to the elements of the offenses.")(There was no Senate report concerning the Act, and the House report covers only the changes that the Act made to section 1001).

Section 2 of the FSAA, however, contains certain limitations concerning statements within the jurisdiction of the judicial and legislative branches. Subsection 2(b) of the FSAA provides that statements made to a judge or magistrate by parties or their counsel in a judicial proceeding will not be subject to prosecution under section 1001. Section 2 of the FSAA thus codifies a limited version of the "judicial function exception," which was created by the courts under the old section 1001 to avoid the chilling of advocacy that might occur if attorneys and parties were subject to prosecution for concealing facts from a court or jury. Under the codified version of the judicial function exception, parties or their counsel may be prosecuted for false submissions to other entities within the judicial branch, such as the probation office. See H.R. Rep. No. 104-680 at 9. Non-parties may be prosecuted for any false submission within the jurisdiction of the judicial branch.

In subsection (c) of amended § 1001, Congress created a "legislative function exception." Under the new provision, false statements within the jurisdiction of the legislative branch are subject to prosecution only if they relate to administrative matters or congressional investigations conducted consistent with the applicable congressional rules. Amended § 1001 will thus reach those documents that have most often been the subject of congressional false statement prosecutions, such as vouchers, payroll documents, and Ethics in Government Act (EIGA) financial disclosure forms. The exception was intended to protect, among other things, the free flow of constituent submissions to Congress. See H.R. Rep. No. 104-680 at 4-5.

Amended § 1001 also expressly includes materiality as an element under each of the three clauses in subsection (a). This resolves a conflict among the courts on that issue. See, e.g., United States v. Corsino, 812 F.2d 26 (1st Cir. 1987); United States v. Elkin, 731 F.2d 1005 (2d Cir. 1984).

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