Lexstat 18 usc section 1001 united states code service

Unpublished Opinions

Unpublished: District court did not clearly err in denying defendant's Batson motion where Government's proffered explanation was that it struck African-American juror based on its belief that he may have been biased as result of his brother's pending criminal charge and no empaneled juror had pending criminal charge or family member with pending criminal charge. United States v Norris (2005, CA4 SC) 140 Fed Appx 443.

Unpublished: Defendant was properly convicted of using telephone to convey false information concerning bomb, in violation of 18 USCS § 844(e), and of making false statements to law enforcement officer in violation of 18 USCS § 1001(a)(2) because (1) government's reference in its rebuttal summation to testimony of defendant's acquaintance, who said he was with defendant at airport where she made 911 call but did not see her with anyone else there, was not new theory of case and was not ultimately prejudicial, and (2) district court did not err in denying defendant's request to give surrebuttal summation or curative instruction. United States v Faisal (2008, CA2) 2008 US App LEXIS 12396.

Unpublished: In case in which defendant appealed his convictions for violating 18 USCS §§ 876(c) and 1001 by arguing that district court judge was required to recuse himself under 28 USCS § 455(a), he argued unsuccessfully that proper procedure for waiver was not followed in case because there was not full disclosure on record of basis of disqualification; he expressly waived his right to file motion to have district court judge removed and, therefore, could not base his appeal on § 455(a); he agreed to consolidate charges against him and proceed with sentencing in front of district court judge, who considered whether he needed to recuse himself and determined that such action was unnecessary; furthermore, district court judge repeatedly explained to defendant that he had, and was waiving, right to seek recusal because of potential conflict based on threatening letter defendant mailed to district court judge's chambers. United States v Disch (2009, CA11 Ga) 2009 US App LEXIS 17470.

Unpublished: In case in which defendant appealed his convictions for violating 18 USCS §§ 876(c) and 1001, he argued unsuccessfully that district court judge was required to recuse himself under 28 USCS § 455(b) because judge was victim in proceeding and, therefore, (1) qualified as party to proceeding and (2) had financial interest in case because he was entitled to mandatory restitution under 18 USCS § 3663(A); defendant had sent threatening communications to judge's chambers, however, he had pled guilty to making false statements to FBI agent, and he was not charged with making threat to judge; circumstances made it apparent that his threats were motivated by desire to cause recusal. United States v Disch (2009, CA11 Ga) 2009 US App LEXIS 17470.

B.Indictment or Information

1.In General 112. Duplicity and multiplicity

In 18 USCS § 1001, enumeration of different kinds of conduct reflect different modes of achieving same result and not separate and distinct offenses, thus, indictment which alleged different kinds of conduct in single count based on single document was not duplicitous; submission of false documents to Government is not essential element of violation of 18 USCS § 1001, thus, in § 1001 prosecution in which indictment contained 28 counts each count based on a separate document defendant's contention that regardless of how many false documents may have been prepared there are only as many offenses as there are submissions, and therefore two or more counts based on one submission would be multiplicitous, was rejected. United States v UCO Oil Co. (1976, CA9 Cal) 546 F2d 833, cert den (1977) 430 US 966, 52 L Ed 2d 357, 97 S Ct 1646.

Counts of indictment charging violations of 18 USCS § 1001 are not duplicitous since each count involved only one Medicare or Medicaid claim form, although some forms were alleged to contain 2 or more false items submitted for payment; government had charged only one crime in each count and, though there may be more than one piece of evidence to support each count, counts are not duplicitous. United States v Adler (1980, CA8 Mo) 623 F2d 1287.

In prosecution for conspiracy, making false statements to United States Department of Labor, theft and embezzlement, and filing false income tax returns, indictment counts charging defendant with submitting certain misleading invoices and counts charging defendant with submitting closeout reports that were summations of such misleading invoices are not subject to attack based upon duplicity because each false document made or submitted can be charged as separate offense of making false statements to United States Department of Labor. United States v Bennett (1983, CA9 Cal) 702 F2d 833.

Indictment under 18 USCS § 1001 was not multiplicitous, where customs broker's three statements made to government agents concerning refund checks she expected to receive were distinct and not repeated iterations of initial assertion, since different proof would be required to prove falsity of first two statements, made at same time, and third statement was new representation. United States v Segall (1987, CA9 Cal) 833 F2d 144, 24 Fed Rules Evid Serv 348.

Separate counts under 18 USCS §§ 666 and 1001 based on same criminal behavior were not multiplicitous, since § 666 requires proof of several facts not required to establish violation of § 1001. United States v Frazier (1995, CA10 Utah) 53 F3d 1105, 42 Fed Rules Evid Serv 96 (criticized in United States v Ferrera (1997, CA7 Ill) 107 F3d 537) and (criticized in United States v Maher (1998, CA4 Va) 1998 US App LEXIS 27771) and (criticized in United States v Kinney (2000, CA2 NY) 211 F3d 13).

Indictment charging violations of 18 USCS §§ 1163, 1001, and 666 was not impermissibly multiplicitous, even though evidence overlapped, since each charge required proof of at least one element that others did not. United States v Wilkinson (1997, CA8 ND) 124 F3d 971, 47 Fed Rules Evid Serv 1057, reh, en banc, den (1997, CA8) 1997 US App LEXIS 27817 and cert den (1998) 522 US 1133, 140 L Ed 2d 146, 118 S Ct 1089.

Two counts of 18 USCS § 1001(a) were multiplicitous where same FBI agent asked prisoner twice whether he had threatened federal judge and prison made identical denials both times; it could not be said that prisoner's second denial further impaired operations of government. United States v Stewart (2005, CA9 Ariz) 420 F3d 1007.

Claims that indictment alleging scheme to conceal improprieties in real estate transactions was multiplicitous would be "better sorted out post-trial" to permit development of factual issues as to what statements were made, what acts of concealment were committed, and whether later acts or statements further impaired operations of government. United States v Hubbell (1999, App DC) 336 US App DC 144, 177 F3d 11.

Indictment for violation of 18 USCS § 1001 was not duplicitous because it charged defendants with making false statement and making and using false statement or document knowing same to contain false statement or entry. United States v Olin Corp. (1979, WD NY) 465 F Supp 1120.

Defendants' Fed. R. Crim. P. 12(b)(3)(B) motion to dismiss count nine as multiplicitous of counts seven and eight was denied where (1) counts seven through nine of second superceding indictment alleged violations of 18 USCS §§ 2 and 1001; (2) count seven alleged that defendants, as principals and as aiders and abettors, caused witness to provide material and untruthful information; (3) count eight alleged that defendants, as principals and as aiders and abettors, caused second witness to provide material and untruthful information; and (4) count nine alleged that defendants, as principals and as aiders and abettors, did knowingly and willfully, make materially false, fictitious, or fraudulent, statement or representation, in matter within jurisdiction of executive, legislative, or judicial, branch of Government of U.S.; defendants' act of actively conveying untruthful information to assigned Assistant U.S. Attorney (AUSA) was separate act made at distinct time from their role in allegedly facilitating provision of false information by two witnesses; their repetition of witnesses' false statements, which separately formed basis for counts seven and eight, to assigned AUSA, knowing that such statements were false, could support separate charge under count nine. United States v Brown (2007, DC Dist Col) 503 F Supp 2d 217.

113. Joinder and severance

If indictment charging that in matter within jurisdiction of Department of Air Force defendant had filed certificate in which he had falsely denied that he had been member of Communist Party and that in same document defendant had falsely denied that he had been affiliated or associated with Communist Party charged 2 offenses, they were properly joined under USCS Rules of Criminal Procedure, Rule 8(a). Ogden v United States (1962, CA9 Cal) 303 F2d 724.

Joinder in same indictment of 13 counts charging defendant with uttering of false documents and making of false statements to influence action of FHA was proper under USCS Rules of Criminal Procedure, Rule 8(a), offenses being of same or similar character and growing out of common plan of operation. Roth v United States (1964, CA10 Colo) 339 F2d 863.

Joinder in same indictment of 4 counts charging defendant with submission of false mortgage applications to FHA to secure mortgage insurance and to 2 federally insured savings and loan associations to secure mortgage loans was proper under USCS Rules of Criminal Procedure, Rule 8(a). United States v Berlin (1973, CA2 NY) 472 F2d 1002, cert den (1973) 412 US 949, 37 L Ed 2d 1001, 93 S Ct 3007.

Joinder of fraud charges with mail and wire fraud scheme is warranted where fraud charges are integral part and are all part of common scheme. United States v Medows (1982, SD NY) 540 F Supp 490.

Balancing of competing considerations of F.R. Crim. P. 8 and 14 favors joinder of conspiracy and mail fraud charge and charge of 18 USCS § 1001 false statements since (1) conspiracy and mail fraud offenses arise out of same overall transaction or insurance "give-up" scheme as offense of making false statements, (2) offenses require common elements of proof, and (3) FBI agent's testimony relating to false statements will not impair defendant's presumption of innocence any more than will agent's testimony relating to conspiracy and mail fraud charges. United States v Gilpin (1988, ND Ill) 678 F Supp 1361.

Defendant's claim that codefendants did not tell him true status of corporation's ownership interest in other company did not show mutually antagonistic defenses requiring severance of charge under 18 USCS § 1001, given allegations in indictment that, although other defendants did not tell defendant of status of ownership interest, he knew of it from contract documents. United States v Dunne (2001, DC Utah) 134 F Supp 2d 1231, subsequent app (2003, CA10 Utah) 324 F3d 1158.

114. Bill of particulars

Specific allegations in indictment under 18 USCS § 1001 were in nature of bill of particulars, which government would have been required to furnish had it not voluntarily done so in indictment itself. Stevens v United States (1953, CA6 Tenn) 206 F2d 64.

In prosecution under 18 USCS § 1001, grant or denial of bill of particulars is well within discretion of court. Sachs v United States (1961, CA5 Ga) 293 F2d 623, cert den (1961) 368 US 939, 7 L Ed 2d 338, 82 S Ct 381.

Indictment charging defendant with violation of 18 USCS § 1001 which stated location of false statements and theory under which government would argue them to be false, was not deficient in failing to inform defendant of nature of charges so as to prepare a proper defense, especially where defense received extensive bill of particulars detailing underlying fraudulent acts. United States v Smith (1975, CA5 Fla) 523 F2d 771, cert den (1976) 429 US 817, 50 L Ed 2d 76, 97 S Ct 59, reh den (1976) 429 US 987, 50 L Ed 2d 599, 97 S Ct 509.

Motion for bill of particulars is warranted where count charges defendants with concealing material facts and causing to be made certain false statements concerning transactions in currency although Government has not alleged what statements it contends are false, nor has it alleged material facts which it contends defendants concealed. United States v Konefal (1983, ND NY) 566 F Supp 698 (criticized in United States v Reguer (1995, ED NY) 901 F Supp 515) and (criticized in United States v Lopez (1997, ND NY) 1997 US Dist LEXIS 5631) and (criticized in United States v Rio (1997, ND NY) 1997 US Dist LEXIS 15888) and (criticized in United States v Brunson (1998, ND NY) 1998 US Dist LEXIS 3867).

115. Dismissal of indictment or counts

Dismissal of indictment of gambler who made false statements on returns and registration application filed under § 4412 of Title 26 was not required by privilege against self-incrimination, as validity of government's demand for information is not element of 18 USCS § 1001 which prohibits making of false statements to any federal agency, and gambler was not indicted for crime about which he had been forced to make incriminating statements. United States v Knox (1969) 396 US 77, 24 L Ed 2d 275, 90 S Ct 363, 70-1 USTC P 15925, 27 AFTR 2d 1902.

Defendant's conviction, for making false statement by placing note and white powder at security desk suggesting that powder was Anthrax and that Capitol police training exercise was being conducted, which defendant argued was done as joke while he was Capitol police officer, was vacated and indictment was dismissed because false statement was not made as part of investigation or review by entities specified in statute and because evidence did not show that such element could have been proven. United States v Pickett (2004, App DC) 359 US App DC 205, 353 F3d 62.

Dismissal of indictment is denied in prosecution for making false statements to federal agents, where motion was based on "exculpatory no" exception, but where accused attached FBI reports to motion, because challenge was not to sufficiency of indictment, but to sufficiency of evidence and was not properly determined at stage of proceedings involving challenge to indictments. United States v Antonucci (1987, ND Ill) 663 F Supp 243.

Indictment counts alleging violations of 18 USCS §§ 2 and 1001 must be dismissed, where independent counsel is prosecuting holding corporation for conspiring to make and concealing illegal campaign contributions, because defendants had no duty to disclose uncharged criminal conduct under concealment prong of § 1001, and indictment does not adequately allege use of affirmatively false writing under false statement prong. United States v Crop Growers Corp. (1997, DC Dist Col) 954 F Supp 335, CCH Fed Secur L Rep P 99548.

Director's motion to dismiss false statement count brought against him under 18 USCS § 1001, on basis that underlying questions and context in which they were asked rendered them fundamentally ambiguous, was denied because questions were capable of being reasonably understood and, thus, were not fundamentally ambiguous, and context in which questions were asked did not make them fundamentally ambiguous. United States v Caputo (2003, ND Ill) 288 F Supp 2d 912.

In case arising from U.S. Army contract for procurement of non-standard ammunition for use in Soviet-era weaponry in which defendants moved to dismiss superseding indictment, which alleged violations of 18 USCS §§ 1001, 1031 and 1343, defendants unsuccessfully argued fraud charges in superseding indictment were invalid because charges were based on breach of contract, which could not be used as basis of fraud charges; superseding indictment alleged that defendants knowingly and with intent to defraud, did devise and intend to devise scheme and artifice to defraud and to obtain money from United States and its agency, Department of Army, by means of material false and fraudulent pretenses, representations and promises, knowing that pretenses, representations and promises were false and fraudulent when made. United States v AEY, Inc. (2009, SD Fla) 603 F Supp 2d 1363, 21 FLW Fed D 567.

In case arising from U.S. Army contract for procurement of non-standard ammunition for use in Soviet-era weaponry in which defendants moved to dismiss superseding indictment, which alleged violation of 18 USCS § 1001 defendants unsuccessfully argued superseding indictment failed to adequately allege false statement charges; language on Certificates of Conformance, asking for Manufacturer (point of origin), was not invalid; defendants had falsely stated point of origin, and contract explicitly incorporated Defense Federal Acquisition Regulation Supplement Rule 252.225-7007, which prohibited procurement of munitions from Communist Chinese military companies; thus, it seemed perfectly reasonable that Certificate of Conformance, which existed to ensure that shipment conformed with contract, would ask defendants to certify Manufacturer (point of origin) of ammunition, and defendants falsely stated point of origin. United States v AEY, Inc. (2009, SD Fla) 603 F Supp 2d 1363, 21 FLW Fed D 567.

In case arising from U.S. Army contract for procurement of non-standard ammunition for use in Soviet-era weaponry in which defendants moved to dismiss superseding indictment, which alleged conspiracy to violate 18 USCS §§ 1001, 1031, and 1343, all in violation of 18 USCS § 371, and substantive false statement, major fraud, and substantive wire fraud violations, defendants unsuccessfully asserted that munitions supplied to U.S. Army did not violate Defense Federal Acquisition Regulation Supplement Rule 252.225-7007, applicable regulation in case, and therefore they did not conceal or misrepresent anything to Department of Defense; it was alleged in superseding indictment that defendants repackaged ammunition manufactured in People's Republic of China, and Rule 252.225-7007 implemented § 1211 of National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, 119 Stat. 3461 (2006), and prohibited acquisition of supplies or services covered by United States Munitions List, 22 CFR pt. 121, through contract or subcontract at any tier, from any Communist Chinese military company. United States v AEY, Inc. (2009, SD Fla) 603 F Supp 2d 1363, 21 FLW Fed D 567.

In case arising from U.S. Army contract for procurement of non-standard ammunition for use in Soviet-era weaponry in which defendants moved to dismiss superseding indictment, which alleged conspiracy to violate 18 USCS §§ 1001, 1031, and 1343, all in violation of 18 USCS § 371, and substantive false statement, major fraud, and substantive wire fraud violations, defendants unsuccessfully asserted that enforcing Defense Federal Acquisition Regulation Supplement Rule 252.225-7007 violated Ex Post Facto Clause of U.S. Constitution; Administrative Procedure Act exempted government procurement contracts from its notice and comment requirements, and rule 252.225-7007, was properly promulgated under requirements of Office of Federal Procurement Policy Act, 41 USCS §§ 401 et seq., and its implementing regulations, Federal Acquisition Regulations, 48 CFR § 1.101 et seq. United States v AEY, Inc. (2009, SD Fla) 603 F Supp 2d 1363, 21 FLW Fed D 567.

In case arising from U.S. Army contract for procurement of non-standard ammunition for use in Soviet-era weaponry in which defendants moved to dismiss superseding indictment, which alleged conspiracy to violate 18 USCS §§ 1001, 1031, and 1343, all in violation of 18 USCS § 371, and substantive false statement, major fraud, and substantive wire fraud violations, defendants unsuccessfully asserted that enforcing Defense Federal Acquisition Regulation Supplement Rule 252.225-7007 was unconstitutionally vague; language of 48 CFR § 252.225-7007 provided notice of prohibited conduct to person of common intelligence, and it did not conflict with § 1211 of National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, 119 Stat. 3461 (2006). United States v AEY, Inc. (2009, SD Fla) 603 F Supp 2d 1363, 21 FLW Fed D 567.

Defendant was entitled to Fed. R. Crim. P. 12 dismissal of indictment in part because some of alleged statements constituting false statements charges under 18 USCS § 1001 were based on impermissibly ambiguous questions, which were posed to defendant, and thus, did not constitute violations of this provision. United States v Kerik (2009, SD NY) 615 F Supp 2d 256.

116. Miscellaneous

Although word "facilitate" does not appear in text of either 18 USCS § 1001 or § 1002, use in indictment of that verb in conjunction with, and not as alternate to, other verbs directly quoted from statute was mere harmless surplusage. United States v Rodriguez (1977, CA2 NY) 556 F2d 638, cert den (1978) 434 US 1062, 55 L Ed 2d 762, 98 S Ct 1233.

Withdrawal by prosecution of count of violation of Food, Drug and Cosmetic Act (21 USCS §§ 301 et seq.) filed in connection with 40 counts of falsifying records did not amount to unlawful amendment of indictment, since nothing was added thereto and counts were independent. United States v Diaz (1982, CA11 Fla) 690 F2d 1352.

Indictment charging making false statements in violation of 18 USCS § 1001 was sufficient, notwithstanding that indictment did not specifically allege that defendant falsified material fact or that false statements were material. United States v Banks (2001, CA6 Tenn) 27 Fed Appx 354, 88 AFTR 2d 6182.

Two and one-half year delay between when defendant committed crime of making false entry on firearms permit, in violation of 18 USCS § 1001(a)(2), and when he was indicted did not violate defendant's U.S. Const. amend. V due process rights because there was no evidence that delay was intentionally created by government for purpose of gaining tactical advantage. United States v Ingram (2006, CA11 Fla) 446 F3d 1332, 19 FLW Fed C 477.

U.S. Supreme Court has determined that criminal limitations statutes must be liberally interpreted in favor of repose and that doctrine of continuing offenses is to be applied only in limited circumstances. District Court finds that language of 18 USCS § 1001 does not explicitly compel that conduct alleged in indictment be construed as continuing offense, nor does nature of alleged conduct compel such outcome - merely calling conduct scheme is not sufficient. United States v Gremillion-Stovall (2005, MD La) 397 F Supp 2d 798.

In denying federal employee's motion to dismiss count of indictment for making false statement when seeking ethics advice, court rejected as of no significance defendant's argument that regulation, 5 C.F.R. § 2635.107, did not itself warn of potential criminal liability; otherwise every regulation creating legitimate government function would have needed to reference 18 USCS § 1001 in order to provide basis for prosecution under that statute, and in any event, regulation itself contemplated potential for criminal prosecution arising out of information provided to ethics officer. United States v Safavian (2006, DC Dist Col) 429 F Supp 2d 156.