Lexstat 18 usc section 1001 united states code service

Unpublished Opinions

Unpublished: Defendant was properly convicted of making false statements to Department of Housing and Urban Development in violation of 18 USCS § 1001 because district court did not err in instructing jury on intent and agency jurisdiction; Government was not required to prove specific intent to deceive or that defendant knew that her conduct was unlawful; also, instructions adequately and fairly embodied law governing federal jurisdiction under § 1001. United States v Jacobs (2006, CA9 Cal) 2006 US App LEXIS 30916.

178.--Good faith

Farmer was not entitled to "good faith" defense instruction in his prosecution under 18 USCS § 1001 involving false statements made to IRS concerning creditors who foreclosed on his farm, although his case arose from tax matter, since exception involving good faith defense applies only to certain criminal tax statutes, and 18 USCS § 1001 concerns willful doing of prohibited act rather than willful failure to act. United States v Hildebrandt (1992, CA8 Minn) 961 F2d 116, 70 AFTR 2d 5270, cert den (1992) 506 US 878, 121 L Ed 2d 162, 113 S Ct 225.

District court's refusal to instruct jury that good faith error negated willfulness elements of 18 USCS §§ 371 and 1001 was not error, since § 1001 does not ordinarily invite use of good faith instruction, and court adequately instructed on specific intent, even though defendants' "redemption" scheme concerned tax matter, since defendants were charged with violating general prohibition against making false statements to government, not with criminal tax offense. United States v Lorenzo (1993, CA9 Hawaii) 995 F2d 1448, 93 CDOS 3426, 93 Daily Journal DAR 5932, cert den (1993) 510 US 881, 126 L Ed 2d 180, 114 S Ct 225, reh den (1993) 510 US 1006, 126 L Ed 2d 487, 114 S Ct 589 and cert den (1993) 510 US 882, 126 L Ed 2d 182, 114 S Ct 227 and post-conviction relief den (2004, CA9 Hawaii) 92 Fed Appx 530.

Unpublished Opinions

Unpublished: Where defendant was convicted of fraud and of making false statements in violation of 18 USCS § 1001 in connection with payment of personal expenses from corporate account, it was not error for trial court to refuse to give jury instruction on good faith defense based on reliance of advice of counsel, because trial court issued specific intent instruction and definitions given for "knowingly" and "willfully" required jury to acquit if, because of his good faith, defendant lacked specific intent, and further, defendant was allowed to present defense through closing arguments and had conceded at charging conference that no evidence had shown that defendant discussed matter with his lawyers. United States v Frame (2007, CA5 Tex) 2007 US App LEXIS 12281.

179.--Willful blindness instruction

In prosecution of attorney/real estate developer for tax fraud and for making false statement to HUD in violation of 18 USCS § 1001, willful blindness instruction did not allow jury to substitute willful blindness for knowledge, since evidence supported inference of knowledge, where defendant depended upon others to inform him of financial consequences of his acts and never took basic investigatory steps, and where instructions clearly emphasized importance of finding specific intent. United States v Bussey (1991, CA8 Mo) 942 F2d 1241, 91-2 USTC P 50402, 33 Fed Rules Evid Serv 1131, 68 AFTR 2d 5405, reh den (1991, CA8) 1991 US App LEXIS 22314 and cert den (1992) 504 US 908, 118 L Ed 2d 542, 112 S Ct 1936, reh den (1992) 505 US 1238, 120 L Ed 2d 937, 113 S Ct 9.

Evidence was sufficient to warrant giving of willful blindness instruction, where illegal alien with limited English argued he had merely stumbled upon agency providing him with bogus documents which he unwittingly purchased, unaware that those documents falsely portrayed him as legal alien allowed to work, even though government failed to show any discrete acts of purposeful avoidance, where sufficient warning signs existed to put reasonably prudent person on notice. United States v Singh (2000, CA1 NH) 222 F3d 6.

Unpublished Opinions

Unpublished: District court did not abuse its discretion by giving willful blindness instruction where government presented evidence from which jury could have concluded or inferred that defendants were aware that their scheme, which involved bogus mortgage loan notes that were sold to two federal mortgage associations, was illegal and that they knew, or turned blind eye to fact, that mortgage notes submitted to associations contained false information. United States v McLean (2005, CA4 NC) 131 Fed Appx 34.

180. Materiality

Instructions pointing out that statement must have been "material" and "made on a material matter," did not permit finding of guilty if statement was false without requiring falsity to be material. United States v Johnson (1968, WD Mo) 284 F Supp 273, affd (1969, CA8 Mo) 410 F2d 38, cert den (1969) 396 US 822, 24 L Ed 2d 72, 90 S Ct 63.

Jury instruction as to materiality of false statement in prosecution for making false statement to government agency under 18 USCS § 1001 was not subject to harmless error analysis, where trial court instructed jury that statement was material in violation of constitutional requirement that materiality of false statement be determined by jury, because jury did not render verdict of issue of materiality. United States v Jerke (1995, DC SD) 896 F Supp 962, affd sub nom United States v Raether (1996, CA8 SD) 82 F3d 192 (criticized in United States v Hart (1996, CA6 Tenn) 1996 US App LEXIS 22475) and motions ruled upon (1996, DC SD) 940 F Supp 1485, affd (1997, CA8 SD) 1997 US App LEXIS 30165, remanded on other grounds sub nom United States v Oseby (1998, CA8 SD) 148 F3d 1016, 49 Fed Rules Evid Serv 1135 and (criticized in United States v Wiles (1996, CA10 Colo) 102 F3d 1043, CCH Fed Secur L Rep P 99361, 46 Fed Rules Evid Serv 151).

Unpublished Opinions

Unpublished: Under 18 USCS § 1001, materiality inquiry focuses on whether false statement had natural tendency to influence or was capable of influencing government agency or official; false statements need not be made directly to government agency to establish jurisdiction under § 1001; instead, they need only relate to matter in which federal agency has power to act. United States v McNeally (2005, CA8 Neb) 132 Fed Appx 63, 2005-1 USTC 50429, 95 AFTR 2d 1400.

181.--Failure to instruct on issue of materiality

Failure of the trial judge to instruct the jury that the materiality of the defendant's false representations was an essential element of the government's case was not reversible error if the materiality of the statements was established as a matter of law. United States v East (1969, CA9 Mont) 416 F2d 351.

Issue of materiality should have been submitted to jury; however, in light of overwhelming evidence against defendants on essential elements, failure to do so was not reversible error. United States v Valdez (1979, CA9 Cal) 594 F2d 725.

Failure to instruct jury on issue of materiality required reversal, particularly where it was not clear court knew proper definition of materiality and evidence of materiality was slim. United States v Baumgardner (1996, CA8 Iowa) 85 F3d 1305 (criticized in United States v Tandon (1997, CA6 Ohio) 111 F3d 482, 97-1 USTC P 50373, 79 AFTR 2d 2292, 1997 FED App 136P).

Failure to instruct on issue of materiality did not require reversal, even if it was obvious error that affected petitioner's substantial rights, where it did not affect fairness, integrity, or public reputation of proceedings. United States v Upton (1996, CA5 Tex) 91 F3d 677, 41 CCF P 76965 (criticized in United States v Wiles (1996, CA10 Colo) 102 F3d 1043, CCH Fed Secur L Rep P 99361, 46 Fed Rules Evid Serv 151) and cert den (1997) 520 US 1228, 137 L Ed 2d 1027, 117 S Ct 1818.

Where court did not charge materiality as essential element of 18 USCS § 1001 and government failed to show that defendant was not prejudiced by clear error, conviction must be vacated. United States v Ballistrea (1996, CA2 NY) 101 F3d 827, cert den (1997) 520 US 1150, 137 L Ed 2d 488, 117 S Ct 1327.

Failure to include materiality as element of offense under 18 USCS § 1001(a)(2) was harmless, where evidence overwhelmingly demonstrated that defendant would have been convicted even if jury had been given issue of materiality, since jury found that his misrepresentations were material on securities fraud counts, and underlying facts in securities fraud counts were identical to underlying facts in § 1001 counts. Bilzerian v United States (1997, CA2 NY) 127 F3d 237, cert den (1999) 527 US 1021, 144 L Ed 2d 770, 119 S Ct 2365.

Although jury instructions failed to address materiality requirement of false statements under 18 USCS § 1001, error was harmless, where mail fraud counts on which jury was properly instructed on materiality were based on same false statements, so that it was essentially inconceivable that jury could have found guilt on mail fraud counts without finding materially false statements, where 18 USCS § 1001 charge directed jurors precisely to issue of false statements. United States v Winstead (1996, App DC) 316 US App DC 52, 74 F3d 1313.

182.--Instruction on issue of materiality as matter of law

Instruction that statements charged in indictment under 18 USCS § 1001 were material as matter of law was plain error, since it completely removed materiality, essential element of crime, from consideration of jury. United States v Gaudin (1993, CA9 Mont) 997 F2d 1267, 93 CDOS 4617, 93 Daily Journal DAR 7858, affd, on reh, en banc, remanded (1994, CA9 Mont) 28 F3d 943, 94 CDOS 4632, 94 Daily Journal DAR 8593, affd (1995) 515 US 506, 132 L Ed 2d 444, 115 S Ct 2310, 95 CDOS 4634, 95 Daily Journal DAR 7952, 9 FLW Fed S 187 (criticized in United States v Copus (1997, CA10 Okla) 110 F3d 1529) and (criticized in United States v Pappert (1997, CA10 Kan) 112 F3d 1073).

In prosecution under 18 USCS § 1001, court erred when it instructed jury that statements were material as matter of law, since materiality is question of fact which must be submitted to jury. United States v Gaudin (1994, CA9 Mont) 28 F3d 943, 94 CDOS 4632, 94 Daily Journal DAR 8593, affd (1995) 515 US 506, 132 L Ed 2d 444, 115 S Ct 2310, 95 CDOS 4634, 95 Daily Journal DAR 7952, 9 FLW Fed S 187 (criticized in United States v Copus (1997, CA10 Okla) 110 F3d 1529) and (criticized in United States v Pappert (1997, CA10 Kan) 112 F3d 1073).

It was fundamental plain error for district court to instruct on materiality as matter of law, where jury could have concluded that materiality was not ultimately proven from fact that firearms dealer would have been allowed to continue in his profession even had he responded truthfully to indictment question, (albeit under letter of operation rather than renewed license), since power of jury is most important when defendant is charged with offending government itself. United States v David (1996, CA4 Va) 83 F3d 638 (criticized in United States v Hart (1996, CA6 Tenn) 1996 US App LEXIS 22475) and (criticized in United States v Wiles (1996, CA10 Colo) 102 F3d 1043, CCH Fed Secur L Rep P 99361, 46 Fed Rules Evid Serv 151) and (criticized in United States v Tandon (1997, CA6 Ohio) 111 F3d 482, 97-1 USTC P 50373, 79 AFTR 2d 2292, 1997 FED App 136P) and (criticized in United States v Neder (1998, CA11 Fla) 136 F3d 1459, 98-1 USTC P 50302, 81 AFTR 2d 1367, 11 FLW Fed C 1139).

Where district court instructed jury that question of materiality of statement was issue for court, not jury, and further charged jury that statement was material, conviction must be vacated and case remanded for further proceedings. United States v Daughtry (1996, CA4) 91 F3d 675.

183. Miscellaneous

Instruction to jury in prosecution under 18 USCS § 1001 for filing with National Labor Relations Board affidavit falsely denying membership in Communist Party, specifying objective circumstances that might be considered by jury in determining membership, is not open to objection that these criteria allowed finding of membership on date other than date when affidavit was executed, since instruction, considered as whole, emphasized to jury that issue for them to determine was whether accused was or was not member on latter date. Killian v United States (1961) 368 US 231, 7 L Ed 2d 256, 82 S Ct 302, 49 BNA LRRM 2189, 43 CCH LC P 17306, reh den (1962) 368 US 979, 7 L Ed 2d 441, 82 S Ct 476, 44 CCH LC P 17389.

Where first count charged defendant with falsity with respect to denial of "membership" in the Communist Party, and second with falsity with respect to denial of "affiliation" with that party, and defendant was convicted and sentenced to five years on each count, to run concurrently, trial court's denial of motion to require election of counts and refusal to give instruction on point of duplicity was not prejudicial error. Fisher v United States (1958, CA9 Wash) 254 F2d 302, 42 BNA LRRM 2020, 34 CCH LC P 71454, cert den (1958) 358 US 895, 3 L Ed 2d 122, 79 S Ct 157, reh den (1959) 358 US 938, 3 L Ed 2d 310, 79 S Ct 322.

Where jury, hearing evidence on substantive charge of aiding and abetting in making of false documents, also heard evidence on conspiracy charge in regard to which judgment of acquittal notwithstanding verdict was entered, there was no prejudice to defendant involved where instructions on substantive count were clearly delineated. United States v Berling (1963, CA7 Ind) 324 F2d 249, cert den (1964) 376 US 955, 11 L Ed 2d 973, 84 S Ct 974.

In prosecution for violation of 18 USCS § 1001 court is not obliged to give instruction on ignorance of law where court concludes that no evidence was presented to warrant such type of instruction inasmuch as defendant did not contend that he was not required to state material on form which form specifically requested. United States v Cox (1983, CA11 Ga) 696 F2d 1294, 12 Fed Rules Evid Serv 539, cert den (1983) 464 US 827, 78 L Ed 2d 104, 104 S Ct 99.

Jury charge which tracked language of 18 USCS § 1001, permitting conviction for making false statements or use of false documents, provided no ground for reversal where defendant was indicted for making false statements under § 1001, since there is no distinction between oral and written statements under § 1001. United States v McCallum (1985, CA5 Tex) 788 F2d 1042, 19 Fed Rules Evid Serv 1716, cert den (1986) 476 US 1182, 91 L Ed 2d 544, 106 S Ct 2915, reh den (1986) 478 US 1031, 92 L Ed 2d 767, 107 S Ct 11.

It was not plain error for court to instruct jury under 18 USCS § 2(a) rather than under § 2(b), even though change was unexpected until charge itself was read, since defendant has not shown how he was prejudiced, where defendant was convicted as aider and abettor for his participation in scheme to conceal financial transactions to avoid filing CTRs in violation of 18 USCS § 1001. United States v Tannenbaum (1991, CA2 NY) 934 F2d 8.

Where gravamen of charge was that contractor's statement that his company had incurred costs to engineering firm was false, jury instruction that failed to define "incurred costs" as contained in 48 CFR § 52.232-16 was in plain error, where jury could have convicted defendant merely for making improper request for progress payments. United States v Baird (1998, CA6 Tenn) 134 F3d 1276, 1998 FED App 34P, reh den (1998, CA6) 1998 US App LEXIS 7746.

Defendant's submission of bogus money orders to IRS did not implicate Petition Clause of First Amendment because money orders were not genuine protest efforts and were vehicle of charged crimes of making false or fraudulent statement to department or agency of U.S., in violation of 18 USCS § 1001, and corruptly endeavoring to obstruct or impede administration of tax laws, in violation of 26 USCS § 7212(a); thus, trial court did not err in refusing to instruct jury on defendant's theory that fake money orders were genuine protest efforts. United States v Milton (2001, CA10 NM) 12 Fed Appx 643, 2001 Colo J C A R 1762, 87 AFTR 2d 1465.

Because indictment charged defendant under 18 USCS § 1001 with making one false statement about double floor planning and jury instructions allowed jury to convict defendant for making different false statement, defendant's indictment was constructively amended, resulting in violation of Fifth Amendment right to grand jury indictment. United States v Hoover (2006, CA5 La) 467 F3d 496.

In concealment of fact charge under 18 USCS § 1001(a)(1), government submitted proposed jury instruction that narrowed prosecution to tax-related offense; although there was sufficient evidence to establish that two defendants concealed information from non-IRS government agencies, inference that concealment could impair IRS functions was unreasonable. United States v Mubayyid (2008, DC Mass) 2008-2 USTC P 50504, 102 AFTR 2d 5348.

Unpublished Opinions

Unpublished: Defendant who was convicted of making false statement, in violation of 18 USCS § 1001, was entitled to new trial because defendant contended at trial that statements that he had made to government inspector regarding whether he had allowed others to use squawk box were literally true and charge that was given to jury was erroneous insofar as it indicated that intent to deceive, without more, was sufficient to support conviction. United States v Mahaffy (2008, CA2 NY) 2008 US App LEXIS 17496.

G.Sentence and Punishment 184. Discretionary matters

Defense that union president was guilty of mere technical violation of 18 USCS § 1001 is without substance in that Congress did not divide violations into degrees, and false affidavit as to nonaffiliation with Communist Party by union president is ground for imposition of maximum sentence in discretion of trial court. Bryson v United States (1959, CA9) 265 F2d 9, 44 BNA LRRM 2061, 36 CCH LC P 65316, cert den (1959) 360 US 919, 3 L Ed 2d 1535, 79 S Ct 1437, 44 BNA LRRM 2302.

Matter of penalties lays within discretion of Congress, and penalty for violation of 18 USCS § 1001 may exceed penalty for perjury. United States v Adler (1967, CA2 NY) 380 F2d 917, cert den (1967) 389 US 1006, 19 L Ed 2d 602, 88 S Ct 561.

Notwithstanding fact that defendant confessed his wrongdoing, in prosecution for violation of 18 USCS § 1001, court does not abuse its discretion in sentencing defendant to 2 consecutive 5-year prison terms, suspending one and placing defendant on probation for 5 years upon completion of one term where defendant has 3 prior felony convictions and one for larceny. United States v Jackson (1983, CA5 Tex) 696 F2d 320.

District court impermissibly granted downward departure of six offense levels under USSG § 2B1.1(b)(8)(B) after defendant pled guilty to making materially false statement in violation of 18 USCS § 1001 where defendant's conduct, i.e., making false entries in two oil record books on 30 separate occasions and routinely instructing subordinates to dump oily water into sea, were made with purpose of deceiving Coast Guard and appeared to have been rather sophisticated. United States v Kostakis (2004, CA2 NY) 364 F3d 45.

On defendant's convictions under 18 USCS §§ 287, 641, and 1001, "significant disruption" had to be found for upward departure under USSG § 5K2.7; thus, district court erred in concluding it had to examine only importance of governmental function under § 5K2.7. United States v Conroy (2009, CA5 Miss) 567 F3d 174.

For 18 USCS § 3553(a)(2) sentencing factor purposes, 18 USCS § 1001 offense is much more serious than typical § 1001 false statement to government offense when it is based upon defendant's failure to comply with Department of Transportation (DOT) regulations, which restrict number of hours that commercial drivers can drive daily and require such drivers to accurately maintain logbooks reflecting their compliance with 10-hour daily driving restriction rule where (1) DOT regulations address issues directly impacting public safety; (2) purpose behind those regulations is relevant when considering nature of defendant's criminal conduct and seriousness of offense; and (3) evidence showing defendant's repeated violation of DOT regulations bears on both seriousness of 18 USCS § 1001 falsification crime and implicates notions of adequate deterrence and protection of public, all of which are factors to be considered under 18 USCS § 3553(a)(2). United States v Sandhu (2006, ED Pa) 462 F Supp 2d 663.

Because defendant pleaded guilty to violating 18 USCS § 1001 in connection with fatal accident that he caused, district court would consider evidence pertaining to accident when determining whether or not to adopt upward departure from advisory federal sentencing guidelines under USSG § 5K2.1 where (1) defendant's 18 USCS § 1001 offenses arose out of his falsification of entries in his commercial truck drivers' daily logbook, in violation of Department of Transportation (DOT) regulations; (2) DOT regulations addressed driver fatigue, which was shown to be significant cause of traffic accidents involving commercial drivers; (3) if defendant was violating DOT's 10-hour daily driving limit restriction at time accident occurred, that fact would establish sufficient nexus between his § 1001 offenses and fatal accident to allow upward departure under USSG § 5K2.1; and (4) although evidence that defendant had repeatedly violated DOT's 10-hour daily driving limit restriction in days prior to accident was relevant to issue of whether he was suffering from accumulation of fatigue at time of fatal accident, court could not take judicial notice that defendant suffered from such fatigue, merely because defendant had falsified his DOT logbook entries for days prior to accident. United States v Sandhu (2006, ED Pa) 462 F Supp 2d 663.

Pursuant to 18 USCS § 3661 and USSG §§ 1B1.4, 6A1.3(a), district court could consider both evidence pertaining to fatal accident that defendant, commercial truck driver, had caused and purpose behind Department of Transportation (DOT) regulations when sentencing defendant for his 18 USCS § 1001 offenses where (1) defendant pleaded guilty to 42 counts arising out of his falsification of his commercial driver's daily logbook, which conduct violated DOT regulations; (2) district court could consider any reliable, relevant evidence at sentencing; and (3) accident-related evidence and evidence showing safety purpose of DOT regulations were relevant to defendant's offenses because it bore on seriousness of his conduct and danger that he presented in failing to comply with DOT regulations, particularly 10-hour daily driving restriction imposed on commercial truck drivers. United States v Sandhu (2006, ED Pa) 462 F Supp 2d 663.

Although it was not required to provide advance notice to defendant under Fed. R. Crim. P. 32(h), district court stated that its decision on defendant's motion to strike constituted notice that it was contemplating imposing sentence above advisory federal sentencing guidelines range applicable to defendant's 18 USCS § 1001 offenses where (1) defendant's convictions arose out fatal accident that he had caused while driving truck; (2) criminal conduct involved in § 1001 offenses was falsification of entries in defendant's commercial drivers' daily logbook; (3) defendant violated Department of Transportation (DOT) regulations in falsifying his logbook entries, and he did so in apparent attempt to hide fact that he was violating DOT's 10-hour daily driving restriction rule; (4) DOT regulations were put in place to address commercial driver fatigue, which studies showed contributed significantly to traffic accidents; and (5) fact that defendant's offenses involved violations of DOT regulations made them much more serious than run-of-the-mill § 1001 false statement offenses, which justified imposition of upward sentencing variance under 18 USCS § 3553(a)(2). United States v Sandhu (2006, ED Pa) 462 F Supp 2d 663.

District court could not accept Fed. R. Crim. P. 11(c)(1)(C) plea agreement that stipulated five-year probationary sentence, $ 250,000 fine, and $ 12 million payment to U.S. Treasury in exchange for defendant's guilty plea to one count of making false statement to Securities and Exchange Commission in violation of 18 USCS § 1001; probationary sentence did not capture seriousness of defendant's alleged securities fraud conduct, and it had potential of creating huge disparities between potential sentences of similarly situated defendants; further, proposed sentence did not inspire public respect for United States' criminal justice system because it gave appearance that wealthy and popular defendants were given more lenient and favorable plea deals. United States v Samueli (2008, CD Cal) 575 F Supp 2d 1154.