Lexstat 18 usc section 1001 united states code service
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- D.False Statements, Writings or Documents and Concealments 1.In General 63. Generally
- 65.--Literally or facially true
- 2.Particular Cases 66. Applications
- 68. Exculpatory statements
- 69.--Custodial interrogation
62. Recklessness A false statement regarding membership in the Army National Guard made with reckless disregard of its truth or falsity would support conviction under 18 USCS § 1001. United States v Gottlieb (1974, CA2 NY) 493 F2d 987. In prosecution for violation of 18 USCS § 1001, no impropriety was committed by trial court in its charge that term knowingly and willfully as used in relation to making of statement means that statement must have been made voluntarily, deliberately, and intentionally, and with knowledge of its content and falsity of its content as distinguished from making false statement by inadvertence, mistake, carelessness or for any other innocent reason, however, person who makes statement with reckless disregard of truthfulness of statement and with conscious purpose to avoid learning truthfulness of statement, is deemed to have knowledge of this statement and its truthfulness or lack thereof. United States v Evans (1977, CA5 Fla) 559 F2d 244, reh den (1977, CA5 Fla) 562 F2d 1257 and reh den (1977, CA5 Fla) 565 F2d 1215 and cert den (1978) 434 US 1015, 54 L Ed 2d 759, 98 S Ct 731 and cert den (1978) 435 US 945, 55 L Ed 2d 542, 98 S Ct 1528. In prosecution for violation of 18 USCS § 1001, "reckless indifference" may be equated with "knowingly and willfully". United States v Schaffer (1979, CA5 Fla) 600 F2d 1120. Contractor who claimed that he signed HUD form without reading it, thereby falsely asserting, among other things, that he was not convicted felon, had specific intent necessary to violate 18 USCS § 1001, since he acted with "reckless disregard of truth and with purpose to avoid learning truth." United States v Puente (1993, CA5 Tex) 982 F2d 156, 38 CCF P 76533, cert den (1993) 508 US 962, 124 L Ed 2d 684, 113 S Ct 2934. Knowledge of actual falsity is not required under 18 USCS § 1001; conviction can be based on finding that defendant acted with reckless disregard of whether a statement was true and with a conscious purpose to avoid learning the truth. United States v Clearfield (1973, ED Pa) 358 F Supp 564. Unpublished Opinions Unpublished: While United States Court of Appeals for Fifth Circuit had not decided whether 18 USCS § 1546 could apply "reckless indifference" or "reckless disregard" standard if defendant also acted "with purpose to avoid learning truth" (as had been allowed to apply under 18 USCS § 1001), and appellate court might have written jury instructions differently in defendant's case, defendant had failed to object to instruction at trial, and, given overwhelming evidence against her that she knew statements in visa application she prepared and submitted for informant were false, there was no plain error. United States v Yong Ping Liu (2008, CA5 Tex) 2008 US App LEXIS 16918. D.False Statements, Writings or Documents and Concealments 1.In General 63. Generally Predecessor to 18 USCS § 1001 covered both use of documents to defraud government and also use of any false statement, whether oral or written, as to any other matter within jurisdiction of any department or agency of United States. United States v Zavala (1944, CA2 NY) 139 F2d 830. There is no requirement in 18 USCS § 1001 that document whereby concealment of material information, to which federal agency is entitled, is accomplished must be verified. Call v United States (1959, CA4 NC) 265 F2d 167, cert den (1959) 361 US 815, 4 L Ed 2d 62, 80 S Ct 54.
Defendant's false statements made in his Criminal Justice Act 23 Financial Affidavit were excluded from liability under statute by 18 USCS § 1001(b) because defendant had already been indicted for crime and, thus, false statements were part of judicial proceeding. United States v McNeil (2004, CA9 Mont) 362 F3d 570. Defendant's false statements made in his Criminal Justice Act 23 Financial Affidavit were excluded from liability under statute by 18 USCS § 1001(b) because defendant had already been indicted for crime and, thus, false statements were part of judicial proceeding. United States v McNeil (2004, CA9 Mont) 362 F3d 570.
Word "false" as used in 18 USCS § 1001 means more than simply incorrect or untrue; intent to deceive or mislead is required. United States v Lange (1976, CA5 La) 528 F2d 1280. In prosecution for violation of 18 USCS § 1001, statements must be false under any reasonable interpretation. United States v Adler (1980, CA8 Mo) 623 F2d 1287. If there remained doubt as to whether term "false" in 18 USCS § 1001 should be interpreted as extending to contractual promises, rule of lenity construed court to rule in favor of defendants and construe statute narrowly. United States v Blankenship (2004, CA11 Fla) 382 F3d 1110, 17 FLW Fed C 953. If there remained doubt as to whether term "false" in 18 USCS § 1001 should be interpreted as extending to contractual promises, rule of lenity construed court to rule in favor of defendants and construe statute narrowly. United States v Blankenship (2004, CA11 Fla) 382 F3d 1110, 17 FLW Fed C 953.
Unpublished: Following plea of guilty to violation of 18 USCS § 1001(a)(2), district court's reliance on USSG § 2K1.3(a)(3) was not clearly proper based on offense conduct; thus, remand was required for resentencing. United States v Malike (2005, CA2 NY) 141 Fed Appx 25. 65.--Literally or facially true Principle articulated in Bronston holds true for convictions under 18 USCS § 1001; appellate court cannot uphold conviction where alleged statement forming basis of violation of § 1001 is true on its face, and prosecution for false statement under § 1001 or under perjury statutes cannot be based on ambiguous question where response may be literally and factually correct. United States v Good (2003, CA4 Va) 326 F3d 589. On defendant's convictions for violations of 18 USCS § 1001(a)(1), which arose from his overseas golf trip with high profile lobbyist, where charges concerned alleged false statements that lobbyist had no business with Government Services Administration (GSA) at time of trip, district court abused its discretion in excluding defendant's favorable expert testimony concerning how government contracting professionals view having business or working with GSA; exclusion was not harmless, as literal truth would have been complete defense. United States v Safavian (2008, App DC) 528 F3d 957. Defendant charged with making false statement on naturalization form is entitled to acquittal on count charging violation of 18 USCS § 1001, where question about crimes committed, arrests, and convictions that formed basis of indictment asked 2 separate and distinct questions, yet form provided space for only one "yes" or "no" answer, because defendant's "no" response is literally and factually correct as to first part of question, and government failed to establish element of falsity. United States v Rendon-Marquez (1999, ND Ga) 79 F Supp 2d 1361, affd without op (2000, CA11 Ga) 228 F3d 416. Where defendant was convicted of crime of brandishing firearm, which was not specifically enumerated as listed offense on Security Identification Display Area (SIDA) form, defendant's negative response to question 20 of SIDA form was literally true, and indictment charging violation of 18 USCS § 1001 had to be dismissed. United States v Baer (2003, ED Va) 274 F Supp 2d 778, affd (2004, CA4 Va) 92 Fed Appx 942.
Meaning of term "application" may reasonably include any document used in connection with application to obtain approval of loan, not just initial document requesting its approval. United States v Grugette (1982, CA5 Tex) 678 F2d 600. Defendant who files application for registration as broker dealer with Securities and Exchange Commission stating that capital, membership and profits in business belong to him alone violates 18 USCS § 1001 where on date of application defendant's account contains funds of investors in defendant's business, and profits from business are to accrue to limited partners investing in business. United States v Kuna (1985, CA7 Ill) 760 F2d 813. Defendant violated 18 USCS § 1001 when she prepared application for housing loan with Farmers Home Administration falsely projecting future earnings, since putting false earnings information into equation necessarily led to false projection, even though statement turned out to be correct, since statement was false when made. United States v Hartness (1988, CA8 Ark) 845 F2d 158, cert den (1988) 488 US 925, 102 L Ed 2d 326, 109 S Ct 308. Dismissal of indictment against defendant for denying convictions of burglary, theft, armed robbery, possession or distribution of stolen property, dishonesty, fraud, or misrepresentation, when she had pleaded guilty to embezzlement, was affirmed as answers given to questions on her application for airport security badge were literally true. United States v Good (2003, CA4 Va) 326 F3d 589.
Check drawn on nonexistent bank is false statement within meaning of 18 USCS § 1001, since representation of nonexistent bank cannot have innocent explanation, but is designedly untrue. United States v Worthington (1987, CA2 NY) 822 F2d 315, cert den (1987) 484 US 944, 98 L Ed 2d 358, 108 S Ct 331. 68. Exculpatory statements "Exculpatory no" doctrine is limited to simple negative answers without affirmative discursive falsehoods which are made while accused is unaware that he is under investigation. United States v King (1980, CA7 Ill) 613 F2d 670, 5 Fed Rules Evid Serv 720, 56 ALR Fed 159 (criticized in United States v LeMaster (1995, CA6 Ky) 54 F3d 1224, 42 Fed Rules Evid Serv 494, 1995 FED App 157P) and (criticized in United States v Wiener (1996, CA2 NY) 96 F3d 35). "Exculpatory no" doctrine is not rule of evidence, but rather defines reach of 18 USCS § 1001; doctrine holds that to impose severe penalty under § 1001 for mere denials in face of investigator's questioning would circumvent perjury statute. United States v Cole (1980, CA4 Va) 622 F2d 98, 6 Fed Rules Evid Serv 203, cert den (1980) 449 US 956, 66 L Ed 2d 221, 101 S Ct 363. Exculpatory denials made to officer conducting criminal investigation were not within reach of 18 USCS § 1001, since need for protecting basic functions of government agencies must be balanced with protection from self-incrimination. United States v Cogdell (1988, CA4 NC) 844 F2d 179 (criticized in United States v LeMaster (1995, CA6 Ky) 54 F3d 1224, 42 Fed Rules Evid Serv 494, 1995 FED App 157P) and (criticized in United States v Solis (1997, CAAF) 46 MJ 31, 1997 CAAF LEXIS 5). 18 USCS § 1001 should not be limited to those statements that pervert governmental functions but should be determined by text and not by judicial reconstruction of its purpose, and therefore, "exculpatory no" doctrine is retroactively abolished. United States v Rodriguez-Rios (1994, CA5 Tex) 14 F3d 1040 (criticized in United States v LeMaster (1995, CA6 Ky) 54 F3d 1224, 1995 FED App 157P, 42 Fed Rules Evid Serv 494). 69.--Custodial interrogation 18 USCS § 1001 does not apply to criminal defendant's responses to investigative officers during post-arrest interrogation since, when government agents are acting as "police investigators" rather than "administrators", pre-requisite for invocation of "exculpatory no" doctrine is met. United States v Medina De Perez (1986, CA9 Cal) 799 F2d 540. "Exculpatory 'no' " exception to 18 USCS § 1001 did not apply to statements defendant made to secret service agents, where defendant was not in custody during interviews with agents, statements made did relate to his claim against government, defendant was not responding to inquiries initiated by government, and his statements did impair basic function of Treasury Department. United States v Olsowy (1987, CA9 Cal) 819 F2d 930, 23 Fed Rules Evid Serv 272, reported at, amd (1987, CA9 Cal) 836 F2d 439, cert den (1988) 485 US 991, 99 L Ed 2d 509, 108 S Ct 1299. 70.--Customs matters Trial judge properly refused to dismiss indictment under 18 USCS § 1001 under "exculpatory no" doctrine where false statement was within jurisdiction of Customs Department and was material to legitimate government function. United States v Grotke (1983, CA2 NY) 702 F2d 49. Under "exculpatory no" doctrine, government proved that individual who brought $ 200,000 into United States but stated on form that he was not carrying more than $ 5,000 knew at that time that entering United States with more than $ 5,000 is not illegal, where defendant had once before filled out similar form that contained statement that bringing more than $ 5,000 into United States is not illegal, and where, when discovered, defendant expressed unconcern and demanded opportunity to fill necessary form. United States v Palzer (1984, CA11 Fla) 745 F2d 1350. False statement made to customs officials in denial of car ownership was not exculpatory, since statement was made in context of routine customs interrogation which was administrative rather than investigative. United States v Becker (1988, CA9 Cal) 855 F2d 644 (criticized in United States v Wiener (1996, CA2 NY) 96 F3d 35). Statement to Customs official that defendant was not transporting more than $ 2200 was not within "exculpatory no" exception to 18 USCS § 1001, since statement was made in response to pre-arrest noncustodial inquiry in routine "administrative context" by officials monitoring compliance with federal law. United States v Alzate-Restreppo (1989, CA9 Cal) 890 F2d 1061. "Exculpatory no" exception to 18 USCS § 1001 does not apply, where defendant continued to falsely assert to Customs that he had less than $ 10,000 on his person, since he continued to assert it even after being disabused of any potential belief that carrying large sum of money was itself illegal. United States v Berisha (1991, CA5 Tex) 925 F2d 791, reh, en banc, den (1991, CA5 Tex) 930 F2d 914. "Exculpatory no" exception applied to defendant who originally reported to customs that he carried with him "about $ 1000," even though he refused to recant his original misstatement after he was informed of reporting requirement, since he did not aggressively and deliberately initiate positive or affirmative statement calculated to pervert legitimate functions of government. United States v Rodriguez-Rios (1993, CA5 Tex) 991 F2d 167, reh, en banc, gr (CA5) 1993 US App LEXIS 16100. Even if "exculpatory no" doctrine were available in appropriate circumstances, defendant was not entitled to its benefit, where, in addition to his simple denial that he was transporting regulated items, he stated that his luggage contained some clothing, VCR, and some liquor. United States v Ali (1995, CA2 NY) 68 F3d 1468, on reh, remanded on other grounds (1996, CA2) 86 F3d 275. Defendant's negative response to inquiry by Customs agents as to whether he had anything to declare was not exculpatory no question within meaning of 18 USCS § 1001; critical to determination that statement falls within protection of exculpatory no exception is finding of possible self-incrimination, and defendant's statement was clearly not exculpatory in that no criminal sanctions would have ensued from declaring amount of money. United States v Pereira (1978, ED NY) 463 F Supp 481.
Defendant was not entitled to "exculpatory no" exception to 18 USCS § 1001, since statements he made to Secret Service agent regarding fraudulent tax refund claim he filed did relate to his claim, he put into motion chain of events leading to his questioning by filing claim, and his statements impaired Treasury Department functioning. United States v Olsowy (1987, CA9 Cal) 836 F2d 439, cert den (1988) 485 US 991, 99 L Ed 2d 509, 108 S Ct 1299. "Exculpatory 'no'" exception to 18 USCS § 1001 would not be applicable to defendant who submitted materially false tax information to IRS, since, unlike mere denial of guilt by suspect, government would be very likely to rely on documents submitted by defendant. United States v Steele (1991, CA6 Ohio) 933 F2d 1313, 67 AFTR 2d 1154, cert den (1991) 502 US 909, 116 L Ed 2d 246, 112 S Ct 303 and (criticized in United States v Wiener (1996, CA2 NY) 96 F3d 35) and (criticized in State v Marshall (1998, Ohio App, Fairfield Co) 1998 Ohio App LEXIS 1319). Defendant's statements denying preparation of income tax returns went beyond scope of "exculpatory no" exception to 18 USCS § 1001, since they were not mere denials of guilt but instead formed affirmatively misleading story calculated to subvert government's investigatory efforts by inculpating another. United States v Moore (1994, CA4 Va) 27 F3d 969, 40 Fed Rules Evid Serv 1302, cert den (1994) 513 US 979, 130 L Ed 2d 367, 115 S Ct 459 and (criticized in United States v Rutgard (1997, CA9 Cal) 108 F3d 1041, 97 CDOS 1698, 97 Daily Journal DAR 3185). 72.--Miscellaneous False statement made by defendant, registered pharmacist, in course of inspection conducted by investigators of Drug Enforcement Agency, who were charged with duty of investigating manner in which defendant was complying with requirements imposed upon him by law, was type of statement 18 USCS § 1001 was intended to reach as it was related to claim of declarant to privilege from United States; "exculpatory no" exception to section 1001 was not recognized where exculpatory denial was given to agents of regulatory agency conducting criminal investigation legitimately within its purview. United States v Goldfine (1976, CA9 Wash) 538 F2d 815. "Exculpatory no" doctrine is inapplicable to situation where defendant has affirmatively applied for benefits with government, makes false statements in order to obtain such benefits, and knows that he was under investigation. United States v King (1980, CA7 Ill) 613 F2d 670, 5 Fed Rules Evid Serv 720, 56 ALR Fed 159 (criticized in United States v LeMaster (1995, CA6 Ky) 54 F3d 1224, 42 Fed Rules Evid Serv 494, 1995 FED App 157P) and (criticized in United States v Wiener (1996, CA2 NY) 96 F3d 35). Defendant's conviction under 18 USCS § 1001 was reversed where agent, acting in police role, aggressively sought statement from person under suspicion and not warned of investigation whose answer was essentially exculpatory "no" as to possible criminal activity. United States v Tabor (1986, CA11 Fla) 788 F2d 714 (criticized in United States v LeMaster (1995, CA6 Ky) 54 F3d 1224, 42 Fed Rules Evid Serv 494, 1995 FED App 157P) and (criticized in United States v Solis (1997, CAAF) 46 MJ 31, 1997 CAAF LEXIS 5). Defendant's response to FBI agents' questions regarding purpose of checks he had received did not fall within "exculpatory no" category where his response was not a refusal to respond or a simple "no," since affirmative misrepresentations fall outside that exception. United States v Capo (1986, CA2 NY) 791 F2d 1054, 105 CCH LC P 12023, vacated on other grounds, in part, on reh, in part, en banc (1987, CA2 NY) 817 F2d 947. "Exculpatory" doctrine does not apply, in prosecution under 18 USCS § 1001, where defendant made false signature on form consenting to magistrate's jurisdiction, since truthful response would not have incriminated defendant nor exposed him to criminal liability but would have exposed facts relevant to sentencing. United States v Holmes (1988, CA4 Va) 840 F2d 246, cert den (1988) 488 US 831, 102 L Ed 2d 63, 109 S Ct 87 and (criticized in Hubbard v United States (1995) 514 US 695, 131 L Ed 2d 779, 115 S Ct 1754, 95 CDOS 3581, 95 Daily Journal DAR 6212, 9 FLW Fed S 3). Defendant's giving of false name to border guard in response to questioning was excluded under "exculpatory no" exception to 18 USCS § 1001, since defendant could have reasonably believed that giving his true name would have led to discovery of his prior convictions, and would have furnished link in chain of evidence that could have led to his prosecution and conviction for felony illegal entry. United States v Equihua-Juarez (1988, CA9 Cal) 851 F2d 1222, 102 ALR Fed 729. Grape broker's false statement made to BATF inspector in 1989 did not fall within "exculpatory no" exception to 18 USCS § 1001, since it was voluntarily made at meeting arranged by his father rather than in response to government inquiry. United States v Licciardi (1994, CA9 Cal) 30 F3d 1127, 94 CDOS 5841, 94 Daily Journal DAR 10353, subsequent app (1996, CA9 Cal) 1996 US App LEXIS 24419. "Exculpatory no" doctrine would not apply to false statements state senator made to FBI agent investigating allegations of corruption in Kentucky legislature, even though two of his false answers were only "no, sir," since as matter of common sense word "no" is indeed statement, and even though senator's list of gratuities paid to him by lobbyist was not false in and of itself, since failure to include all expenses paid represented attempt to conceal additional information required to provide complete, accurate, and truthful response. United States v LeMaster (1995, CA6 Ky) 54 F3d 1224, 42 Fed Rules Evid Serv 494, 1995 FED App 157P, reh, en banc, den (1995, CA6 Mich) 1995 US App LEXIS 19703 and cert den (1996) 516 US 1043, 133 L Ed 2d 657, 116 S Ct 701 and (criticized in United States v Robertson (2003, CA8 ND) 324 F3d 1028). Judicially-created "exculpatory no" exception to 18 USCS § 1001 does not provide basis for dismissal of indictment for making false statement to federal agent, where defendant, charged with mailing explosive device with intent to kill, made false statement during postal inspector's questioning, since first and fourth prong were not met, of Rose-Carrier rule requiring, for application of "exculpatory no" exception, that (1) defendant have claimed privilege at time of questioning, (2) false statement not impair functioning of federal agency, (3) questioning involve exercise of routine administrative responsibility, and (4) truthful response to questioning would not have implicated fifth amendment right against self-incrimination; moreover, inability of "exculpatory no" doctrine has been called into question by U.S. Supreme Court. United States v Marusich (1986, SD Cal) 637 F Supp 521. Charges of false statements are dismissed in prosecution of border patrol agents for assault, where false statements were limited to denials of guilt, because "exculpatory no" doctrine prohibits indictment (1) if false statement was denial of guilt by suspect, was unrelated to claim to privilege from government or claim against government, and was in response to inquiries by federal agency, (2) where truthful answer would have been self-incriminatory, (3) where agency's inquiry was not part of administrative routine, and (4) if statement did not impair basic function entrusted by law to agency. United States v Jarvis (1987, SD Cal) 653 F Supp 1396. Dismissal of indictment is denied in prosecution for making false statements to federal agents where accused contended series of statements made fell under "exculpatory no" exception, because exception applies only to simple negative answers under circumstances where individual is not aware of being under investigation and not to those statements involving affirmative discursive falsehoods. United States v Antonucci (1987, ND Ill) 663 F Supp 243. Denial of motion to dismiss count of indictment charging violation of 18 USCS § 1001 based upon "exculpatory no" doctrine is proper where count is legally sufficient on its face to charge conspiracy and mail fraud defendant with making false statements regarding theft of his van and his subsequent insurance claim, since doctrine cannot be applied to positive, affirmative statements calculated to pervert authorized functions of government. United States v Gilpin (1988, ND Ill) 678 F Supp 1361. Defendant convicted on mail fraud and conspiracy to defraud insurance company is granted motion to arrest judgment on count charging him with violating 18 USCS § 1001 because "exculpatory denial" doctrine is applicable where (1) defendant did not initiate interview with special agent, sought no benefit from government, and was not informed that he was under investigation for insurance fraud, and (2) defendant's response was not attempt to fabricate alternative set of facts intended to pervert functioning of FBI. United States v Russo (1988, ND Ill) 699 F Supp 1344. Indictment for making false exculpatory statement to FBI agent was improper under 18 USCS § 1001, where (1) defendant was not pursuing claim against U.S., (2) agent initiated inquiry that led to statement, (3) FBI's basic functions were not perverted, (4) statement was made in context of investigation rather routine agency business, and (5) truthful answer would have incriminated defendant, because "exculpatory no" exception applies. United States v Armstrong (1989, SD Ind) 715 F Supp 242. "Exculpatory no" exception, to extent it would even be recognized in Second Circuit, does not afford protection to indictee charged under 18 USCS § 1001 with falsely stating that he never met or saw target of investigation and was unaware that his business partner was involved with harboring target, because indictee's responses to FBI agents' questioning consisted of more than simple "no." United States v Distefano (1990, ED NY) 741 F Supp 49. Accused government witness is not entitled to dismissal of 18 USCS § 1001 false statements charges based on "exculpatory no" doctrine, where Second Circuit embraces narrow version of exception if it embraces doctrine at all, because government has made it clear that both challenged counts--charging false statements to prosecutors regarding gambling and representations of skimming of books of toy company--charge more than simple "no" or denial of guilt. United States v Guariglia (1991, SD NY) 757 F Supp 259. Fact that telephone call from General Services Administration official to defendant was, from official's perspective, made in context of investigation rather than in routine course of administrative responsibility fulfilled requirement, for application of "exculpatory no" doctrine in prosecution for making false statement under 18 USCS § 1001, that statement have been made in context of investigation, rather than in routine exercise of administrative responsibility. United States v Raether (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. Reasoning of federal courts regarding doctrine of "exculpatory no" and 18 USCS § 1001 was also applicable to New Jersey false statement statute; "exculpatory no" answer without affirmative, aggressive, or overt misstatement on part of defendant does not come within proscriptions of either statute. State v Pandozzi (1975) 136 NJ Super 484, 347 A2d 1.
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