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False Statements - Federal Criminal Defense Lawyer (Continued)

Case Law Interpreting Section 1001
The elements that the Government needs to prove in prosecuting a case under section 1001 are

1. a statement is made
2. the statement is false
3. materiality
4. specific intent, and
5. agency jurisdiction. United States v. Gilbertson, 588 F.2d 584, 589 (8th Cir. 1978).

The agencies covered by section 1001 are

• Congress; see United States v. Hansen, 566 F. Supp. 162 (D.D.C. 1983);
• the Courts; see United States v. Butler, 351 F. Supp. 2d 121 (S.D.N.Y. 2004);
• the Environmental Protection Agency; see United States v. White, 270 F.3d 356 (6th Cir. 2001);
• the Federal Bureau of Investigation; see United States v. Grossman, 272 F. Supp. 2d 760 (N.D. Ill. 2003).
• the Internal Revenue Service; see Brogan v. United States, 522 U.S. 398 (1997)
• the Department of Labor; see Id.
• the Postal Service; see United States v. McGauley, 279 F.3d 62 (1st Cir. 2002);
• the Small Business Administration; see United States v. Ross, 77 F.3d 1525 (7th Cir. 1996); and
• the Veteran's Administration. See Stevens v. United States, 206 F.2d 64 (6th Cir. 1953).

Brogan v. United States, 522 U.S. 398 (1997).

Brogan is a very important case because it explains the "exculpatory no" doctrine which many circuits used before Brogan was decided. As the court states, Brogan "presents the question whether there is an exception to criminal liability under 18 U.S.C. § 1001 for a false statement that consists of the mere denial of wrongdoing, the so-called 'exculpatory no.'" Brogan at 399. The defendant in this case, while acting as a union officer, accept cash payments from a real estate company that the union represented. Id. A few years later, federal agents from the Department of Labor and the Internal Revenue Service visited the defendant at his home, explained that they were investigating the real estate company and that they were seeking his cooperation. Id. They also suggested that if he wished to cooperate, he should contact an attorney, and then they asked whether he would answer some questions. Id. They asked if he had ever received any case from the real estate company, to which he replied "no"; the agents then disclosed that they had records that suggested otherwise. Id. at 399-400. The defendant declined to change his answer, and was soon thereafter indicted, in part, for making a false statement within the jurisdiction of a federal agency in violation of section 1001. Id. at 400. Though the statue had been amended by the time the case reached, the Supreme Court, the Court was forced to interpret the statute as it read at the time he made his allegedly false statement. See Id. at 400.

However, as Ginsburg points out in her cautionary concurrence, Congress made substantive changes to section 1001 in 1996, Id. at 413 n4 (Ginsburg, J., concurring), but legislative history shows that it was intended to bring false statements to Congress and the Judiciary under the purview. Pub. L. 104-292, 110 Stat. 3459. The majority opinion notes that the statute at the time, by its terms "covers 'any' false statement-that is, a false statement 'of whatever kind.'" Brogan at 400. The word "no" is unquestionably a statement, and the Court notes that the defendant did "contest that his utterance was false or that it was made 'knowingly and willfully.'" Id. at 400-01.

The defendant, however wanted the exculpatory no doctrine applied, claiming that a simple denial of guilt does not come within the statute. Id. at 401. He relied on many Courts of Appeals that recognized the exculpatory no doctrine. See, e.g., Moser v. United States, 18 F.3d 469, 473-74 (7th Cir. 1994); United States v. Taylor, 907 F.2d 801, 805 (8th Cir. 1990); United States v. Fitzgibbon, 619 F.2d 874, 880-81 (10th Cir. 1980). In short, the defendant argued that section 1001 "criminalizes only those statement to Government investigators that 'pervert governmental functions'; to the minor premise that simple denials of guilt to government investigators do not pervert governmental functions; to the conclusion that § 1001 does not criminalize simple denials of guilt to Government investigators." Id. at 401-02. The Court disagreed, finding it difficult to believe that a simple denial of guilt does not pervert a governmental function, since the purpose of an investigation is to uncover the truth and any falsehood relating to the focus of the investigation perverts that function. Id. at 402.

The defendant also raised Fifth Amendment concerns, arguing that it places a person in a "trilemma" of admitting guilt, remaining silent, or falsely denying guilt, which the Court declines to agree with. Id. at 404. Quoting its decision in United States v. Apfelbaum, 445 U.S. 115, at 117 (1980), the Court says that "[p]roper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely." Brogan at 404-05. In short, while the Court may think the punishment harsh, "[c]ourts may nor create their own limitations on legislation, no matter how alluring the policy arguments for doing so, and no matter how widely the blame may be spread." Id. at 408. Justices Ginsburg and Souter concurred with the Court in the holding, but wrote separately to warn of the potential abuses of section 1001, and to highlight the fact that the Department of Justice apparently had policies in place to minimize the prosecution of defendants for merely saying "no." Id. at 414 (Ginsburg, J. concurring).

As a final note, when Congress restructured section 1001, "materially" was added as a descriptor of "false, fictitious, or fraudulent statement." See 18 U.S.C. § 1001(a)(2) (2005). The Court, in a case that pre-dates Brogan, held that materiality is an element of an offense under section 1001, even if the language did not read as it does now. United States v. Gaudin, 515 U.S. 506, 509 (1995). See also United States v. McLaughlin, 386 F.3d 547, 552 (3d Cir. 2004).

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