Federal False Statements
The federal government has many ways to prosecute someone for making a false statement. They really, really don’t like it when you lie. In many federal criminal cases, a prosecutor will throw a false statement charge in simply because it gives them another bit of leverage to go against a person accused of a crime.
The most frequently used false statements charge is under 18 U.S.C. § 1001. That law makes it a federal crime to make a false statement or conceal anything from any federal investigator – from any part of the legislature, any part of the judicial branch, or any executive branch agency.
So, if the FBI comes to your house and you tell them something false, that’s a federal crime. Similarly, if you are testifying before Congress and you say something false – whether or not you’re under oath – they can prosecute you for that.
The breadth of this statute is kind of staggering. Its potential for abuse is significant.
It’s even worse when you think about how the FBI does interviews. Normally the FBI interviews people in teams of two. So one agent asks questions while the other writes down everything that’s said. That agent then puts together a report. Just about every time a person who has been interviewed sees that report, he or she doesn’t recognize what she said based on what’s been written down. Federal agents hear what’s said through the lense they want to hear it through. If an agent sees someone as dirty, they’ll hear any ambiguous thing as a confession. It’s one reason why you should think carefully about whether to talk to federal law enforcement.
And, not surprisingly, just about every federal law enforcement agency – from the IRS’s Criminal Investigations Division, to Postal Inspectors, to agents in an Office of Inspector General – follows the same procedure as the FBI. They all have two agents do an interview.
What’s worse, Section 1001 is just the start – there are many many other false statements charges the government can bring littered throughout the United States Code. Health Care providers can be charged with making a false statement in connection with a “health care benefit program”, for example, under 18 U.S.C. § 1035. Often this happens in a case with other health care fraud allegations.
There’s one restriction on how broad this law is – the government has to prove that the person who is charged with making a false statement knew it was illegal to give the false statement. The government doesn’t have to prove that a person charged with a federal false statement charge thought he or she was doing anything wrong – only that it was illegal to make a false statement. Or, at least that’s the government’s interpretation right now.
Federal prosecutors have found a way around that though. At the start of every interview, the AUSA has his or her federal agent tell the person being interviewed that it is a crime to make a false statement to them.
Practically speaking, most folks, when the FBI shows up, are surprised, confused, and in a little bit of shock. They just don’t hear anything the agents have said. It doesn’t register that the agent just told them that they can go to prison if they get some of the facts wrong.
This makes false statement charges a dangerous trap. An AUSA can send an agent out to interview someone who knows something about a crime. If the person tells the truth – that’s great, the AUSA has evidence. If the person lies, that works too – the AUSA has leverage against them from the false statement charge.