Before speaking to government agents think long and hard about the information you want to provide them. Even if you aren’t the target of their investigation, any statements you provide the government that turn out to be false can be grounds for charging you with a separate and distinct felony under 18 U.S.C. 1001. This offense carries a penalty of up to 5 years imprisonment and should not be taken lightly. Therefore, think through your statements before providing them to government agents, and if possible, retain counsel before making any such statements.

The False Statements statute makes it a felony to (1) conceal a material fact, (2) make a false statement or representation, or (3) make or use a false writing, in any matter within the jurisdiction of the United States Government. Thus the statute criminalizes the making of a wide range of both sworn and unsworn statements to the federal government.

False statements typically arise when prosecutors charge those who have lied to cover up some other illegal activity. Hence the common characterization of 18 U.S.C. 1001 as a “cover-up” crime.

What follows is a brief break down of the three primary offenses:

(1) Concealing a material fact – a person has to falsify, conceal or cover up any material fact that he had a duty to disclose. Such a duty exists if the government asks you to disclose the fact either in person or on an official form. Even answering “no” to an agent’s question of whether you committed the crime can be grounds of charging you under section 1001 if you did in fact commit the crime.

(2) Making a false or fraudulent statement – a person makes a “false” statement if the statement was untrue when it was made, and the person knew it was untrue at that time. A statement is “fraudulent” if it was untrue when it was made, and the person knew it was untrue at that time, and the person intended to deceive.

(3) Making or using a false writing – a person uses a false writing or document when that person knows it contains materially false, ficticious, or fraudulent statements or entries.

For each of the three offenses above, the following additional elements must be proven before someone can be convicted of 18 U.S.C. 1001:

(a) The subject of the false statement, the fact, must be material. To be material, a fact either has a natural tendency to influence or is capable of influencing a decision of any federal governmental entity.

(b) The person must have acted knowingly and willfully. A person acts knowingly or willfully if they have acted voluntarily and intentionally, and not because of mistake or some other innocent reason.

(c) And finally, that the fact actually pertained to a matter before some agency or branch of the U.S. Government regardless of whether the person knew it was actually a matter before the government. As such, making false statements to private contractors carrying out a federal project or filing papers with your employer that are subsequently sent to the federal government can make you liable under section 1001.

You must understand and respect the gravity of the situation when speaking to government agents either in person or in written responses. Make sure your statements are true and reflect the knowledge you actually possess about any matter you are being asked about. The risk of prosecution is real, and the government is not shy about charging section 1001. However, if you fear that speaking the truth will get you in trouble you can just decline to speak to the agents altogether until you are compelled to by court order or subpoena. At that time you can invoke your Fifth Amendment right to remain silent.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

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