Federal Prosecution and Defenses of the False Statements Statute

Published: 20th August 2008
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Federal false statements statute, 18 U.S.C. § 1001, is one of the most widely used tools in federal prosecutors' arsenal. The statute is often the default "charge of choice" because the way it is drafted, prosecutors enjoy a wide leverage and advantage.



The statute provides: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined under this title or imprisoned not more than five years, or both.



Essentially, the statute includes three separate crimes: (1) a falsification committed by concealment by means of a trick or scheme; (2) a fraudulent statement or representation; or (3) the making or using of false writings knowing that they contain a false, fictitious or fraudulent statement or representation. Of these, the second category, making a fraudulent statement, is the most widely used. In order to convict, the government must prove that the defendant: (a) made a statement, (b) that the statement was false; (c) that the defendant knew that the statement was false; (d) that the statement was relevant to the function of U.S. government, and (e) that the false statement was material. Technically speaking, any statement, written or oral, that is not true may qualify to be the "statement" for the purposes of this statute.



If you have been already indicted, there several legal arguments that may be raised to attack the indictment. The first doctrine - Multiplicity - refers to multiple counts of an indictment that cover the same criminal behavior. Under the double jeopardy clause of the Fifth Amendment of the Constitution, a person may not receive multiple punishments for the same offense. A multiplicity argument may be successful in a case where a person makes the same false statement many times and is charged for each separate time.



Another doctrine is Duplicity, which means that an indictment charges separate offenses in a single count. Section 1001 does not contain specific defenses. If you are accused of Section 1001 violation, your best defense would be complicating the government's efforts to prove that each of the elements of the offense is satisfied.



Another possible defense could be a good faith argument that would demonstrate that the defendant did not possess the requisite mind frame (though that the statement was true, for example). Obviously, simply taking the positing that the defendant "had good faith" in the authenticity of his or her statement is not going to do the trick. In order to successfully use the good faith defense, in most cases defendant will have to offer evidence that he or she relied on expert advice or that good faith was based on ''percipient'' information. Relying on expert opinion is not a universal remedy, too. Courts have addressed this issue and handed down very specific requirements that need to be met for this defense to be successfully used. An example of the ''percipient'' information" defense is the case United States v. West 666 F.2d 16 (2d Cir. 1981) where the defendant signed his wife's name on loan documents when he reasonably believed that he was authorized by his wife do so.



If you are investigated or indicted for false statements statute, 18 U.S.C. § 1001, seek advice of a competent criminal defense attorney at once.





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Joseph Potashnik is a criminal defense attorney who defends individuals facing criminal charges in New York City and New Jersey. You can visit his websites at http://www.jpdefense.com for NY and http://www.jpcriminaldefense.com for NJ.


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