Section 1001 False Statements
Section 1001(a) provides that it is a federal crime, in a matter within the jurisdiction of a government agency, to (1) falsify, conceal or cover up a material fact, (2) make any materially false, fictitious or fraudulent statement, or (3) make or use a document containing a materially false statement. In the criminal tax context, section 1001 is generally used in connection with the submission of false documents or making of false statements to an internal revenue agent during an audit or investigation. It is not typically used to prosecute false statements on a tax return, as such violations are generally charged under section 7206(1).
The Statute and Elements
The relevant statute provides as follows:
§1001. Statements or entries generally
(a) . . . [W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully —
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) 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 . . . .
Thus, in order to establish a violation of section 1001, the government must generally prove the following elements beyond a reasonable doubt:
1. The defendant made a statement or representation, or made or used a document;
2. The statement, representation, or document is false or fraudulent;
3. The statement, representation, or document is material;
4. The defendant made the statement or representation, or made or used the document, knowingly and willfully; and
5. The statement, representation, or document pertained to an activity within the jurisdiction of the federal agency to which it was addressed.
Section 1001 finds its origin in a statute that was enacted in 1863.
The False Statements Accountability Act of 1996, Pub. L. No. 104-292, 110 Stat. 3459, amended section 1001 in response to the Supreme Court’s 1995 decision in Hubbard v. United States, 514 U.S. 695, 702-03 (1995). In that case, the Supreme Court had held that prior versions of section 1001 only prohibited false statements made to the executive branch. The False Statements Accountability Act expanded Section 1001 to false statements with respect to any matter within the jurisdiction of the executive, legislative or judicial branch of the federal government.
The Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638, subsequently increased the penalties under section 1001 for certain crimes involving international or domestic terrorism.
False Statements or Representations
The concept of a “statement” within the context of section 1001 is generally given a broad interpretation. Such statements can generally be made orally or in writing. It is not necessary for a statement to be made under oath as the statute applies to false sworn and unsworn statements.
The Bronston Defense – The “Literal Truth” Defense
Under the Supreme Court’s decision in Bronston v. United States, 409 U.S. 352 (1973), the federal perjury statute, 18 U.S.C. § 1621, does not reach a witness’ answer that is literally true, but unresponsive, even assuming the witness intends to mislead his questioner by the answer, and even assuming the answer is arguably “false by negative implication.” The scope of this defense, and its applicability under section 1001, are not entirely settled law in all circuits. But see, United States v. Moses, 94 F3d 182, 188–189 (5th Cir. 1996) (“We cannot uphold a conviction . . . where the alleged statement forming the basis of a violation of section 1001 is true on its face.”).
The “Exculpatory No” Doctrine
Prior to 1996, a number of federal courts had recognized an exception to prosecution under section 1001 commonly known as the “exculpatory no” doctrine. Under the “exculpatory no” defense, “a simple denial of guilt” to a government investigator was not a violation of section 1001. However, in Brogan v. United States, 522 U.S. 398, 401 (1998), the Supreme Court stated that “the plain language of § 1001 admits of no exception for an ‘exculpatory no.'” 522 U.S. at 408.
Matter within the Jurisdiction of a Branch of the Federal Government
The false statement at issue must have been made in a matter within the jurisdiction of the executive, legislative, or judicial branch of the United States government.
The government takes the position that the false statement need not be made directly to a branch of the government. As a result, the Department of Justice has authorized prosecutions under section 1001 for false claims that have been prepared, but not yet filed with The IRS.
Materiality under section 1001 is an issue for the jury. Courts typically engage in an analysis that asks three questions: (1) what statement was made, (2) what decision was the agency trying to make, and (3) whether under the appropriate legal standard, the statement was material to the decision the agency was trying to make. A common test for determining materiality is whether the falsity or concealment of the information have a natural tendency to influence, or was capable of influencing, the decision-making body to which it was addressed.
The government currently takes the position that willfulness under section 1001 is defined as follows:
The word “willfully” means that the defendant committed the act voluntarily and purposely, and with knowledge that his conduct was, in a general sense, unlawful. That is, the defendant must have acted with a bad purpose to disobey or disregard the law. The government need not prove that the defendant was aware of the specific provision of the law that he is charged with violating or any other specific provision.
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