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Federal Prosecution for False Statements to Government Agencies: Use and Abuse

With the Mueller investigation and prosecutions, we see the latest example of the broad use of Title 18, United States Code, Section 1001. Under this law, it is a crime to make a false statement in relation to any matter within the jurisdiction of the executive, legislative, or judicial branch of the government of the United States. It is also a violation of the false statement statute to cover up by trick, scheme, or device, a material fact within the jurisdiction of the government of the United States.

Examples of the broad use of this statute include the charges against Michael Flynn, who had a discussion with FBI agents while he was Director of the National Security Agency. Another example was Martha Stewart being charged with providing false information to government investigators concerning her purchase of stocks. The government convicted Martha Stewart with making false statements to FBI agents.

The false statement statute is a powerful tool to ferret out wrongdoing but is subject to abuse by law enforcement. In order to obtain a conviction under 18 U.S.C. §1001, the government must prove:

  1. The defendant made a false statement about a matter within the jurisdiction of a government agency
  2. The defendant knew that the statement was false when made
  3. The statement was made with the intent to deceive
  4. That the false statement was material.

A prosecution under the false statement statute can also proceed based upon the concealing or covering up of a material fact by trick, scheme or device. Therefore, a person can be convicted not only for what was said, but also what was not said.

The false statement statute is also violated if an individual submits false writing or document knowing that it contains a materially false fictitious or fraudulent statement or entry.

The false statement statute does not require the statement to be given under oath. The statute also does not require that a written document contain a declaration that the document is true and correct, signed under penalty of perjury, or sworn to before a Notary Public.

The most common example of prosecutions based upon false statements under Title 18, U.S. Code §1001 is when an individual speaks with a federal investigator, such as an FBI agent. The executive branch of the government utilizes law enforcement agencies such as the FBI, Secret Service, Homeland Security, and ATF (just to name a few) to investigate crimes. Therefore, any false statement made to a federal investigator that is material to the government's investigation can result in a criminal charge under Section 1001.

As reported in the news, Michael Flynn, answered questions by two FBI agents. The FBI agents, as well as the government lawyers, perceived that the statements were false and, even though not made under oath, indicted Mr. Flynn.

A discussion with a federal investigator can result in serious consequences, even if the person answers to the best of his or her knowledge. Speaking with a federal investigator carries the following risks:

  1. An incorrect statement may be due to a lapse in memory. If the agents and/or government lawyers believe that the statement was intentionally false and not due to a lapse in memory, a charge under Title 18 U.S. Code §1001 may follow.
  2. The person being questioned may not understand a question and therefore give an answer which is deemed false by the government.
  3. Most federal law enforcement agencies do not record interviews. As a result, federal investigators can, and do, make mistakes as to what you said.
  4. The federal investigator will prepare a memorandum at some time after the interview. Without the benefit of a recording, the investigator will rely upon her or his memory and any notes made during the interview. This can result in an erroneous memorandum which attributes statements to the person being interviewed that are incorrect.
  5. While it is a rare event, there is also the possibility that the federal investigator will intentionally falsify the memorandum or fail to mention statements that do not support the investigator's theory or preconceived opinion.

It is common for federal agents to stop by for an interview without making an appointment. Interviews are conducted with at least two agents present so that in the event of a dispute as to what was said, there will be two agents to refute the individual interviewed. Federal agents dropping by unannounced also leads many individuals to think that it is a casual encounter. In reality, there is no such thing as a casual or informal interview with a federal investigator. The agents do not have to advise the individual that providing false information to the agents is a felony, even if the person is not under oath.

Another factor that many people do not know is that federal law enforcement agents do not have to tell the truth as to their motivations, and can lie to the person being interviewed. While it is a crime for an individual to make a false statement to the federal investigator, the reverse is not true.

An individual may seek to tell the truth and, in fact, tell the truth to the agents to the best of his or her ability; yet, statements may still be considered false. It must be remembered that federal investigators, as well as federal prosecutors, may be persuaded by other individuals to believe facts which are not true. The end result is that an individual being interviewed may provide information that is true, however, the statement is rejected because the federal investigators have a different theory of the facts or choose to believe a person who tells the agents what they want to hear, even if it is a lie.

The potential risks of meeting with federal investigators are great. Care must be taken before a decision is made to speak with any federal investigator without the benefit of being represented by experienced criminal defense counsel.