24.00 FALSE STATEMENTS

Updated June 2001

24.01 STATUTORY LANGUAGE:  18 U.S.C. § 1001

24.02 GENERALLY

24.03 ELEMENTS

24.04 FALSE STATEMENTS OR REPRESENTATIONS

24.05 MATTER WITHIN JURISDICTION OF A BRANCH OF THE FEDERAL GOVERNMENT

24.06 MATERIALITY

24.07 WILLFULNESS

24.08 DEFENSES

24.08[1] Exculpatory No Doctrine

24.08[2] Wrong Statute Charged

24.09 VENUE

24.10 STATUTE OF LIMITATIONS

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            24.01 STATUTORY LANGUAGE:  18 U.S.C. § 1001

      §1001. Statements or entries generally

            (a) . . . Whoever, 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

                  statements or representation; 

                  (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 five

      years, or both.[FN1]

            *As to offenses committed after December 31, 1984, the Criminal Fine

      Enforcement Act of 1984 (P.L. 98-596) enacted 18 U.S.C. § 3623 [FN2]

      which increased the maximum permissible fines for both misdemeanors and

      felonies. For the felony offense set forth in section 1001, the maximum

      permissible fine for offenses committed after December 31, 1984, is

      increased to at least $250,000 for individuals and $500,000 for

      corporations. Alternatively, if the offense has resulted in pecuniary gain

      to the defendant or pecuniary loss to another person, the defendant may be

      fined not more than the greater of twice the gross gain or twice the gross

      loss.

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                            24.02 GENERALLY

      This statute has a history of more than one hundred years. The courts have

recognized that the statute is necessarily couched in very broad terms. "Congress

could not hope to foresee the multitude and variety of deceptive practices which

ingenious individuals might perpetrate upon an increasingly complex governmental

machinery, a complexity that renders vital the truthful reporting of material

data." 

United States

 v. Beer, 518 F.2d 168, 170 (5th Cir. 1975);

see also United States v. Fern, 696 F.2d 1269, 1273-74

(11th Cir. 1983).     

      The statute technically describes two distinct offenses concerning any

matter within the jurisdiction of a department or agency of the 

United States

:

            1.    Falsifying, concealing, or covering up a material fact by any

                  trick, scheme, or device.

            2.    Making materially false, fictitious, or fraudulent statements

                  or representations; or making or using any false writing or

                  document.

Each of these offenses requires different elements of proof. 

United States

 v.

Mayberry, 913 F.2d 719, 722 n.7 (9th Cir. 1990).

      The purpose of section 1001 is "to protect the authorized functions of

governmental departments and agencies from the perversion which might result

from" false information. 
United States
 v. Gilliland, 312 

U.S.

 86, 93

(1941); see Bryson v. 
United States
, 396 

U.S.

 64, 70 (1969);

United States

 v. Olson, 751 F.2d 1126, 1128 (9th Cir. 1985); United

States v. Brack, 747 F.2d 1142, 1151-52 (7th Cir. 1984);  But

see, United States v. Machi, 962 F.Supp 442 (S.D.N.Y. 1997).  In the

criminal tax context, the statute is normally used in connection with false

documents or statements submitted to an Internal Revenue agent during the course

of an audit or investigation. The statute is not normally used in the case of a

false statement on a return because, if the return is signed under the penalties

of perjury, as most are, section 7206(1) of the Internal Revenue Code (Title 26)

is considered a more appropriate charge. 

      Before a section 1001 charge may be included in a criminal tax indictment,

authority must be obtained from the Deputy Assistant Attorney General (Criminal),

Tax Division. See Tax Division Directive No. 115 at pp. 3-47 - 48,

supra.  The Tax Division prefers to restrict authorization of

section 1001 prosecutions to those instances where the false statement was made

under oath or in writing, although each request will be considered on its merits.

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                             24.03 ELEMENTS

      Limiting this discussion to offenses involving false statements or

representations and false documents, the government must prove the following

elements beyond a reasonable doubt to establish a violation of section 1001:

            1.    The defendant made a false statement or representation, or

                  made or used a false document;

            2.    In a matter within the jurisdiction of the executive,

                  legislature or judicial branch of the Government of the United

                  States;

            3.    The false statement or representation, or false document

                  related to a material matter; and,

            4.    The defendant acted willfully and with knowledge of the

                  falsity.

United States
 v. Gaudin, 515 
U.S.
 506 (1995); 

United States

 v.

Shafer, 199 F.3d 826, 828 (6th Cir. 1999); 

United States

 v. David, 83

F.3d 638 (4th Cir. 1996); 

United States

 v. Barr, 963 F.2d 641, 645

(3rd Cir. 1992); 

United States

 v. Steele, 933 F.2d 1313, 1318-19 (6th Cir.

1991) (en banc); United States v. Gafczk, 847 F.2d 685, 690

(11th Cir. 1988);  United States v. Brack, 747 F.2d 1142, 1146 n.4

(7th Cir. 1984); 

United States

 v. Race, 632 F.2d 1114, 1116 (4th Cir.

1980); 

United States

 v. Baker, 626 F.2d 512, 514 (5th Cir. 1980);

United States

 v. Gilbertson, 588 F.2d 584, 589 (8th Cir. 1978). . 

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               24.04 FALSE STATEMENTS OR REPRESENTATIONS

      The term "statement" as used in section 1001 has been given a broad

interpretation. The Supreme Court has recognized that the term includes both oral

and written statements. 
United States
 v. Beacon Brass Co., 344 

U.S.

 43,

46 (1952). Either can be a violation of section 1001. The Second Circuit, in

United States v. McCue, 301 F.2d 452, 456 (2d Cir. 1962), stated

that:

            The appellant's contention that Section 1001 does not apply to oral

            statements is disputed by the language of the statute itself which

            penalizes the making of "any false, fictitious or fraudulent

            statements" as well as the making or using of "any false writing or

            document."

McCue, 301 F.2d at 456 (citations omitted); See also United

States v. Steele, 933 F.2d 1313, 1318 n.4 (6th Cir.1991) (en

banc); United States v. Fitzgibbon, 619 F.2d 874, 878 (10th Cir.

1980); 

United States

 v. Massey, 550 F.2d 300, 305 (5th Cir. 1977).

      There also is no requirement that the statement be under oath. The statute

applies to unsworn, as well as sworn, statements.  Massey, 550 F.2d at

305; Neely v. 

United States

, 300 F.2d 67, 70 (9th Cir. 1962).

      A statement is false for purposes of this statute even if it is a

technically true statement, but it is knowingly put to a false use. In

Peterson v. United States, 344 F.2d 419 (5th Cir. 1965), in response to

the question whether a payment was for past earned fees or fees to be earned, the

defendant submitted a letter stating that his records showed the payment was an

accrued fee, and accordingly, the payment was a deductible expense for a

particular year. The court held that even if the literal language of the letter

was true as to what the records reflected, it was clearly open to the jury to

find that the statement in the letter as to the payment being an accrued fee was

false. Peterson, 344 F.2d at 427. See also 

United States

v. Brack, 747 F.2d 1142, 1150 (7th Cir. 1984), cert. denied, 469 

U.S.

1216 (1985) ("even though the statements were accurate as to the total amount of

the contract, they constituted false statements within the meaning of section

1001 by concealing the fraudulent nature of the contract").

Cf. Bronston v. United States, 409 

U.S.

 352, 358 n.4 (1973)

(fraudulent statements include "intentional creation of false impressions by a

selection of literally true representations") (citations omitted). 

      A forged endorsement on a tax refund check has been held to be a false

statement within the ambit of section 1001. Gilbert v. 

United States

,

359 F.2d 285 (9th Cir. 1966). In Gilbert, the defendant, an accountant,

endorsed checks with the taxpayer's name and his own name, and then deposited the

checks into his own trust account. The court acknowledged that the defendant

"made no pretense that the payees had themselves executed the endorsements," but

held nevertheless that his endorsements constituted unlawful misrepresentations.

Gilbert, 359 F.2d at 286.

      Section 1001 prohibits false statements generally, not just those

statements or documents required by law or regulation to be kept or furnished to

a federal agency. As stated by the court in United States v. Arcadipane.

41 F.3d 1, 4-5 (1st Cir. 1994):

      It seems self-evident that section 1001 is intended to promote the smooth

      functioning of government agencies and the expeditious processing of the

      government's business by ensuring that those who deal with the government

      furnish information on which the government confidently may rely. To this

      end, section 1001 in and of itself constitutes a blanket proscription

      against the making of false statements to federal agencies . Thus, while

      section 1001 prohibits falsification in connection with the documents that

      persons are regarded by law to file . . . , its prohibitory sweep is not

      limited to such documents. The statute equally forbids falsification of

      any other statements, whether or not legally required, made to a federal

      agency. 

See 

United States

 v. Meuli, 8 F.3d 1481, 1485 (10th Cir. 1993);

United States

 v. De Rosa, 783 F.2d 1401, 1407 (9th Cir.1986); United

States v. Olson, 751 F.2d 1126, 1127 (9th Cir. 1985); 

United States

 v.

Diaz, 690 F.2d 1352, 1358 (11th Cir. 1982). Thus, it is not necessary that

the alleged false statement be a statement that the defendant was required by law

to make. Bryson v. 
United States
, 396 
U.S.
 64 (1969); 

United States

 v.

Knox, 396 

U.S.

 77 (1969); Neely, 300 F.2d at 71; Knowles v. United

States, 224 F.2d 168, 172 (10th Cir. 1955). As the court stated in

Bryson, 396 

U.S.

 at 72:

            Our legal system provides methods for challenging the Government's

            right to ask questions -- lying is not one of them. A citizen may

            decline to answer the question, or answer it honestly, but he cannot

            with impunity knowingly and willfully answer with a falsehood.

      The absence of a requirement that the government prove that the statement

made was one required by statute or regulation pertains only to the situation

where the defendant is charged with making a false statement. The proof for such

a prosecution is substantially different, in this regard, from the proof needed

for a prosecution alleging concealment as a violation of section 1001. If the

defendant is charged with concealing or failing to disclose material facts, the

government must prove that the defendant had a legal duty to disclose the

material facts at the time the defendant allegedly concealed them. United

States v. Dorey, 711 F.2d 125, 128 (9th Cir. 1983); But see Olson,

751 F. 2d at 1127-28, limiting Dorey. 

      In contrast to perjury statutes, 18 U.S.C. § 1621, et

seq., there are no strict requirements under section 1001 for the method

of proving the falsity of statements.  Thus, falsity may be proven by the

uncorroborated testimony of a single witness. 

United States

 v. Fern,

696 F.2d 1269, 1275 (11th Cir. 1983); 

United States

 v. Carabbia, 381 F.2d

133, 137 (6th Cir. 1967); 

United States

 v. Marchisio, 344 F.2d 653, 665

(2d Cir. 1965); Neely, 300 F.2d at 70; Travis v. 

United States

,

269 F.2d 928, 936 (10th Cir. 1959), rev'd on other grounds, 364 

U.S.

 631

(1961); 

United States

 v. Killian, 246 F.2d 77, 82 (7th Cir. 1957).

Note that under 18 U.S.C. § 1623, the two-witness rule does not apply to

perjury for false declarations in court proceedings or before grand juries.

Section 1001 nevertheless differs from 18 U.S.C. § 1623 in that the perjury

conviction requires proof of an oath while a false statement conviction does not.

United States

 v. D'Amato, 507 F.2d 26, 29 (2d Cir. 1974).

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               24.05 MATTER WITHIN JURISDICTION OF A BRANCH 

                         OF THE FEDERAL GOVERNMENT

      To establish a violation of section 1001, the false statement or

representation must be shown to have been made in a matter within the

jurisdiction of the executive, legislative or judicial branch of the Government

of the 

United States

. Relying upon Congressional intent, courts have given the

term "jurisdiction" an expansive reading. In 

United States

 v. Rodgers,

466 U.S. 475 (1984), the Court stated that "[t]he term 'jurisdiction' should not

be given a narrow or technical meaning for purposes of Section 1001."

Rogers, 466 
U.S.
 at 480 (quoting Bryson v. United States, 396 

U.S.

64, 70 (1969)). See 

United States

 v. Shafer, 199 F.3d 826, 828 (6th

Cir. 1999). Consequently, the jurisdiction of the executive legislative or

judicial branch within the meaning of the statute is not limited to the power to

make final or binding determinations. Rather, it includes, as well, matters

within an agency's investigative authority. Rodgers, 466 

U.S.

 at 480.

Thus, "a 'statutory basis for an agency's request for information provides

jurisdiction enough to punish fraudulent statements under Section 1001.'"

Rodgers, 466 
U.S.
 at 4512 (quoting Bryson, 396 

U.S.

 at 70-71);

see also United States v. Milton, 8 F.3d. 39 46 (D.C. Cir.

1993); 

United States

 v. Bilzerian, 926 F.2d 1285, 1300 (2d Cir. 1991).

Likewise, a false statement submitted to a federal agency falls within the

statute if the false statement relates to a "matter as to which the Department

had the power to act." 
Ogden
 v. 

United States

, 303 F.2d 724, 743 (9th Cir.

1962), after remand, 323 F.2d 818 (9th Cir. 1963); see

Shafer, 199 F.3d at 828-829; United States v. Diaz, 690 F.2d 1352,

1357 (11th Cir. 1982); 

United States

 v. Cartright, 632 F.2d 1290, 1292

(5th Cir. 1980); 

United States

 v. Adler, 380 F.2d 917, 921-22

(2d Cir. 1967). 

      Whether a matter is within the jurisdiction of the executive, legislative

or judicial branch of the government is a question of law. Shafer, 199

F.3d at 828; 

United States

 v. Gafyczk, 847 F.2d 685, 690 (11th Cir. 1988);

United States

 v. Lawson, 809 F.2d 1514, 1517 (11th Cir. 1987); United

States v. Goldstein, 695 F.2d 1228, 1236 (10th Cir. 1981); Pitts v. United

States, 263 F.2d 353, 358 (9th Cir. 1959); See 

United States

 v.

Gaudin, 515 

U.S.

 506 (1995). In Gaudin, the Supreme Court, 

recognizing that the Constitution requires that the jury decide all elements 

of the crime, held that it was error in a prosecution under 18 U.S.C 1001 to 

take from the jury the question of materiality. Gaudin strongly 

suggests that irrespective of the nature of the question whether a matter is 

within the jurisdiction of an agency of the executive branch (i.e., 

fact or law), the question must be submitted to and resolved by the jury.

      In the past, the courts have uniformly found that the Internal Revenue

Service is a "department or agency of the 

United States

" within the meaning of

18 U.S.C. § 1001. 

United States

 v. Morris, 741 F.2d 188, 190-91

(8th Cir. 1984); 

United States

 v. Fern, 696 F.2d 1269 (11th Cir. 1983);

United States

 v. Schmoker, 564 F.2d 289, 291 (9th Cir. 1977); United

States v. Isaacs, 493 F.2d 1124, 1156-57 (7th Cir. 1974); 

United States

v. Ratner, 464 F.2d 101 (9th Cir. 1972); 

United States

 v. McCue,

301 F.2d 452, 455 (2d Cir. 1962). See

also United States v. Knox, 396 

U.S.

 77, 80-81 (1969) (Court simply

accepted, without directly holding, the applicability of the statute to false

documents submitted to the Internal Revenue Service). As noted above, the statute

has its origins in a perceived need to protect the government from monetary

frauds. Clearly, this could not be accomplished without prohibiting false

representations made to the Internal Revenue Service on matters relating to tax

liability.

      In 
United States
 v. Bramblett, 348 

U.S.

 503 (1955), the Supreme

Court held that the term "department" as used in section 1001, as written at that

time, referred to all three branches of government. In Hubbard v. United

States, 514 U.S. 695 (1995), the Court overruled Bramblett to hold

that the term "department" refers only to a "component of the Executive Branch".

514 

U.S.

 at 699-702, 715. With respect to the term "agency" in former Section

1001 with regard to which Bramblett was silent, the Supreme Court in

Hubbard held only that a court is not an "agency", 514 

U.S.

 at 715. The

False Statement Accountability Act of 1996 overruled Hubbard and

included in section 1001 all branches of the federal government.  Obviously,

since the executive branch is explicitly listed in this law, the IRS is included

within the reach of the statute. This argument is further strengthened by the

long history of the judicial findings that the IRS is an "agency or department"

within the meaning of section 1001, as it existed prior to 1996. 

      The false statement need not be made directly to or even received by the

executive, legislative or judicial branch of the government. 

United States

 v.

Oren, 893 F.2d 1057, 1064 (9th Cir. 1990); 

United States

 v. Gibson,

881 F.2d 318, 322 (6th Cir. 1989); 

United States

 v. Suggs, 755 F.2d

1538, 1542 (11th Cir. 1985); 

United States

 v. Wolf, 645 F.2d 23, 25

(10th Cir. 1981). If the defendant puts the statement or document in

motion, that is sufficient. For example, a defendant who falsely endorsed tax

refund checks and deposited them in his bank account was guilty of violating

section 1001. Gilbert v. 

United States

, 359 F.2d 285, 287 (9th Cir.1966).

Moreover, false statements made to state, local or even private entities who

either receive federal funds or are subject to federal supervision can form the

basis of a section 1001 violation. See Shafer, 199 F.3d at 829

(false statements made to state agency that received federal support and was

subject to federal regulation "squarely within the jurisdiction of an agency or

department of the 

United States

);  Gibson, 881 F.2d at 322 (overstated

invoices submitted by private party to Tennessee Valley Authority was a matter

within federal jurisdiction). 

      Since the false statements or documents need not actually be received by

the executive, legislative or judicial branch, the Tax Division has authorized

prosecution pursuant to section 1001 for false claims which have been prepared,

but have yet to be filed with the Internal Revenue Service. This scenario occurs,

for example, in electronic filing prosecutions where the filer has been

apprehended either after or at the time of the presentation of his false claim

to a tax filing service, but before transmission is effectuated. Because the

false claim has not been submitted to the Service, the commonly used 18 U.S.C.

§ 287 charge is unavailable. Section 1001 provides a mechanism by which

these false claims can be prosecuted. See Section 22.07, infra. 

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                           24.06 MATERIALITY

      Although the word "material" was only explicitly mentioned in the first

clause of prior section 1001, which refers to the falsification or concealment

of a material fact, most courts "have read such a requirement into . . . [the

false statement and false document clauses] . . . 'in order to exclude trivial

falsehoods from the purview of the statute.'" Hughes v. 

United States

,

899 F.2d 1495, 1498 (6th Cir. 1990) (citing United States v. Abadi,

706 F.2d 178, 180 (6th Cir. 1983); see also 

United States

 v. Baker,

200 F.3d 558, 561 (8th Cir. 2000); 

United States

 v. Gafyczk, 847 F.2d 685,

691 (11th Cir. 1988) (citing United States v. Lichenstein, 610 F.2d 1272,

1278 (5th Cir. 1980)); 

United States

 v. Baker, 626 F.2d 512, 514

& n.5 (5th Cir. 1980); United States v. Adler, 623 F.2d 1287, 1291

(8th Cir. 1980);. Thus, "[false statements made to conceal a fraud are no

less material for the purposes of Section 1001 than false statements designed to

induce a fraud." 

United States

 v. Brack, 747 F.2d 1142, 1150 (7th Cir.

1984). Even though materiality has been grafted onto the statutory scheme of the

second and third clauses, failure to allege the false statement's or false

document's materiality is not fatal to an indictment where the facts "advanced

by the pleader warrant the inference of materiality." 

United States

 v.

Oren, 893 F.2d 1057, 1063 (9th Cir. 1990).

      The present wording of the statute is much more explicit and refers both

to a "material fact" and to "any materially false, fictitious, or fraudulent

statement or entry"; both phrases appear in the first paragraph of current

section 1001 where the elements of the crimes are listed. This leaves little room

for interpretation and clearly suggests that materiality is an element of all

aspects of this crime.

      Unlike the other circuits, the Second Circuit has refused to read a

materiality requirement into the second and third clauses of the statute. The

Second Circuit has repeatedly held that "materiality is not an element of the

offense of making a false statement in violation of Section 1001." United

States v. Elkin, 731 F.2d 1005, 1009 (2d Cir. 1984). See also

United States
 v. Bilzerian, 926 F.2d 1285, 1299 (2d Cir. 1991), 502 

U.S.

813, 63 (1991); 

United States

 v. Silva, 715 F.2d 43, 49 (2d Cir.

1983) (the court lists elements of a section 1001 false statement prosecution

without mentioning materiality); United States v. Gribben, 792 F. Supp.

960 (S.D.N.Y. 1992), rev'd on other grounds, 984 F.2d 47 (2d Cir. 1993);

United States

 v. Sprecher, 783 F. Supp. 133, 157 (S.D.N.Y. 1992). However,

as noted above, the current language of the statute leaves little, if any, room

for interpretation on this issue.

      The commonly used test for determining whether a matter is material is

whether the falsity or concealment had a natural tendency to influence, or was

capable of influencing, the agency or department. 

United States

 v. Gaudin,

515 
U.S.
 506, 509 (1995); Baker, 200 F.3d at 561; 

United States

 v.

White, 27 F. 3d 1531, 1534 (11th Cir. 1994); 

United States

 v.

Hutchinson
, 22 F.3d 846, 851 (9th Cir. 1992); 

United States

 v. Meuli, 

8 F.3d 1481, 1484 (10th Cir. 1993); 

United States

 v. Steele,

933 F.2d 1313, 1319 (6th Cir. 1991) (en banc); 

United States

 v.

Grizzle, 933 F.2d 943, 948 (11th Cir. 1991); Brack, 747 F.2d at 1147;

United States

 v. Green, 745 F.2d 1205, 1208 (9th Cir. 1984); United

States v. Diaz, 690 F.2d 1352, 1357 (11th Cir. 1982); Baker, 626 F.2d

at 514 & n.5; United States v. Jones, 464 F.2d 1118, 1122 (8th Cir.

1972). As the Ninth Circuit stated:

            [T]he test for determining the materiality of the falsification is

            whether the falsification is calculated to induce action or reliance

            by an agency of the 

United States

, -- is it one that could affect or

            influence the exercise of governmental functions, -- does it have a

            natural tendency to influence or is it capable of influencing agency

            decision?

United States

 v. East. 416 F.2d 351, 353 (9th Cir. 1969).

      It is not essential that the agency or department actually rely on or be

influenced by the falsity or concealment.  Baker, 200 F.3d at 561;

United States

 v. Myers,  878 F.2d 1142, 1143 (9th Cir. 1989); United

States v. Lawson, 809 F.2d 1514, 1520 (11th Cir. 1987); Brack, 747

F.2d at 1147; Green, 745 F.2d at 1208; United States v. Fern,

696 F.2d 1269, 1275 (11th Cir. 1983); Diaz, 690 F.2d at 1357; United

States v. 

Markham

, 537 F.2d 187, 196 (5th Cir. 1976);

Jones, 464 F.2d at 1122; Gonzales, 286 F.2d 

at 122.  Accordingly, in 

United States

 v. Parsons, 967 F.2d 452, 455 

(10th Cir. 1992), the Tenth Circuit found that false Forms 1099 were 

material despite the defendant's argument that the amount claimed "were so 

ludicrous that no IRS agent would believe them." Parsons, 967 F.2d at 

455. On the contrary, the court explained that the very fact that the 

amounts were high increased the likelihood that the Service would be 

influenced by the forms' contents:

            The large amounts involved do not reduce the forms to scraps of

            blank paper. If anything, the reverse is the case. They cry out for

            attention and it would be a blameworthy administration to ignore

            them.

Parsons, 967 F.2d at 455. 

      Nor is it required that the false statement be one which the defendant was

obligated by statute or regulation to make. 

United States

 v. Hutchison,

22 F.3d 846 (9th Cir., 1993) (rejected argument that false Forms 1099-S were not

material because defendant was not required to file them). Moreover, as stated

above, the federal agency need not actually receive the statement. United

States v. Hooper, 596 F.2d 219, 223 (7th Cir. 1979). Simply stated, "[t]he

false statement must . . . have the capacity to impair or pervert the functioning

of a government agency." Lichenstein, 610 F.2d at 1278.

      Likewise, proof of pecuniary or property loss to the government is not

necessary.  Lichenstein, 610 F.2d at 1278-79. For example, the fact that

the government had begun its own tax investigation did not make the defendant's

statements regarding income tax entries immaterial to a section 1001 prosecution.

United States

 v. Schmoker, 564 F.2d 289, 291 (9th Cir. 1977).

      Prior to 1995 there was a split in the circuits as to whether "materiality"

was a question of law for the court or a question of fact for the jury. The

Fourth, Fifth, Sixth, Eighth, and Eleventh Circuits had held that materiality was

a question of law. Grizzle, 933 F.2d at 948; 

United States

 v.

Rigdon, 874 F.2d 774, 779 (11th Cir. 1989); Fern, 696 F.2d at 1274; 

Baker, 626 F.2d at 514 n.4; United States v. Hicks, 619 F.2d 752,

758 (8th Cir. 1980). The Ninth and Tenth Circuits, on the other hand, had found

that materiality was a factual question. 

      The Supreme Court in  
United States
 v. Gaudin, 515 

U.S.

 506 (1995),

decided this issue and held that materiality is a question for the jury. In

Gaudin, the defendant had been convicted of making false statements on

Department of Housing and Urban Development loan documents, in violation of 18

U.S.C. § 1001. The trial court instructed the jury that materiality was a

question of law for the court. The Supreme Court, in rejecting this holding,

employed the following syllogism: 

      The Constitution gives a criminal defendant the right to demand that a

      jury find him guilty of all the elements of the crime with which he is

      charged; one of the elements in the present case is materiality: [the

      defendant] therefore had a right to have the jury decide materiality.

      In Gaudin, the Court did not address the issue of whether

materiality is an element of any § 1001 offense. Rather, the parties agreed

that materiality was an element of the offense under § 1000. Gaudin,

515 

U.S.

 at 509.

---

                           24.07 WILLFULNESS

      To establish a section 1001 violation, the government must prove that the

defendant acted knowingly and willfully. 

United States

 v. Hildebrandt,

961 F.2d 116, 118 (8th Cir. 1992). As used in section 1001, the term "willful"

simply means that the defendant did the forbidden act (e.g., made a false,

fictitious, or fraudulent statement) deliberately and with knowledge.

Hildebrandt, 961 F.2d at 118.

      The government need not prove an intent to deceive. 

United States

 v.

Yermian, 468 

U.S.

 63, 69, (1984); United States v. Arcadipane

41 F.3d 1, 5 (1st Cir. 1994); Hildebrandt, 961 F.2d at 118; see

United States

 v. Ranum, 96 F. 3d 1020, 1027-1029 (7th Cir. 1996)

Nor need the government prove that the defendant had actual knowledge of federal

agency jurisdiction -- i.e., knowledge that the statements were made

within federal agency jurisdiction. Yermian, 468 

U.S.

 at 69, 73;

Hildebrandt, 961 F.2d at 118-19. Furthermore, several courts have held

that the element of knowledge can be satisfied by proof of "willful blindness"

or "conscious avoidance."  

United States

 v. Evans, 559 F.2d 244,

246 (5th Cir. 1977); 

United States

 v. Abrams, 427 F.2d 86, 91 (2d Cir.

1970).

      For a further discussion of willfulness, see, e.g., Sections

8.06, supra, and 40.09, infra.

---

                             24.08 DEFENSES

24.08[1] Exculpatory No Doctrine

      Due to the sweeping language of this statute and the potential for

governmental abuse, many courts had created an exception to prosecution which was

commonly referred to as the "exculpatory no" doctrine. This judicially-created

doctrine prohibited the government from prosecuting individuals who had done

nothing more than provide negative responses to questions put to them in the

course of a federal criminal investigation.[FN3]  However, the Supreme Court, in

Brogan v. United States, 522 U.S.398 (1998), eliminated this avenue of

defense for potential defendants. 

      Until Brogan, the courts had failed to formulate a single cohesive

test concerning the doctrine's applicability. It had, however, been accepted by

the First, Fourth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits. See

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.

Cogdell, 844 F.2d 179, 183 (4th Cir. 1988); 

United States

 v. Tabor,

788 F2d 714, 717-19 (11th Cir. 1986); 

United States

 v. Fitzgibbon, 619

F.2d 874, 880-81 (10th Cir. 1980); 

United States

 v. Rose, 570 F.2d 1358,

1364 (9th Cir. 1978); 

United States

 v. Chevoor, 526 F.2d 178, 183-84 (1st

Cir. 1975).

      The Second, Third, Sixth, and D.C. Circuits had neither adopted nor

rejected the "exculpatory no" doctrine. See 

United States

 v. LeMaster,

54 F.3d 1224, 1229-1230 (6th Cir. 1995); 

United States

 v. Barr, 963

F.2d 641, 647, (3d Cir. 1992); 

United States

 v. White, 887 F.2d 267, 273

(D.C. Cir. 1989). 

      The Fifth Circuit, which had been the first to adopt the doctrine in

Paternostro v. United States, 311 F.2d 298 (5th Cir. 1962), was the

only circuit to reject it. In 

United States

 v. Rodriguez-Rios, 14 F.3d

1040 (5th Cir. 1994) (en banc), that Court concluded that there was no

support for the doctrine in either statute or reason.

      The Fourth, Eighth and Ninth Circuits had adopted a five-part test to

determine the doctrine's applicability:

            1.    the false statement must be unrelated to a privilege or claim

                  against the government;

            2.    the declarant must be responding to inquiries initiated by a

                  federal agency or department;

            3.    a truthful answer would involve self-incrimination;

            4.    the government agency's inquiries must not constitute a

                  routine exercise of administrative as opposed to investigative

                  responsibility; and,

            5.    the false statement must not impair the basic functions

                  entrusted by law to the agency.

Cogdell, 844 F.2d at 179, 183; Taylor, 907 F.2d at 805-7; United

States v. Becker, 855 F.2d 644, 646 (9th Cir. 1988) (citing 

United States

v. Medina de Perez, 799 F.2d 540 (9th Cir. 1986)). Because the test was

phrased in the conjunctive, the doctrine was only invoked where the false

statement was thought to interfere with an agency's functions and when a