The circumstance often arises in which a false statement is made in response to an inquiry by an FBI or other Federal agent, or made voluntarily to an agent. The issue is whether such a statement is within the purview of 18 U.S.C. § 1001.
It is the Department's policy not to charge a § 1001 violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government. See USAM 9-42.160 for a discussion of the Department's policy. This policy is to be narrowly construed, however; affirmative, discursive and voluntary statements to Federal criminal investigators would not fall within the policy. Further, certain false responses to questions propounded for administrative purposes (e.g., statements to border or United States Immigration and Naturalization Service agents during routine inquiries) are also prosecutable, as are untruthful "no's" when the defendant initiated contact with the government in order to obtain a benefit.
By its plain terms, § 1001 (as it existed before it was amended in October 1996), broadly reaches "[w]hoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . .makes any false, fictitious or fraudulent statements or representations. . . ."
For example, if the false statement was volunteered to an FBI agent the Supreme Court has held that § 1001 does apply. United States v. Rodgers, 466 U.S. 475 (1984). In Rodgers the court concluded: (1) that criminal investigations fell within the term "in any matter"; and (2) that the FBI qualified as a "department or agency." In Rodgers the language "within the jurisdiction" was held to merely differentiate the official, authorized functions of an agency or department from matters peripheral to the business of that body. From Rodgers it is also clear that the term "jurisdiction," defined as the "right to say and the power to act" (Gonzales v. United States, 286 F.2d 118 (10th Cir. 1960), cert. denied, 365 U.S. 878 (1961)), should not be given a narrow or technical meaning (United States v. Fern, 696 F.2d 1269 (5th Cir. 1983)), and extends to the power to investigate. The statute has also been held to apply if the false response is made to an investigator other than an FBI agent. See United States v. Ratner, 464 F.2d 101 (9th Cir. 1972)(employee of the United States Internal Revenue Service); United States v. Mahler, 363 F.2d 673 (2d Cir. 1966)(employee of the United States Securities and Exchange Commission); Frasier v. United States, 267 F.2d 62 (1st Cir. 1959)(employee of the United States Army); Tzantarmas v. United States, 402 F.2d 163 (9th Cir. 1968), cert. denied, 394 U.S. 966 (1969)(employee of the United States Immigration and Naturalization Service).
Although § 1001 does not provide for exceptions, a number of courts have held that it does not apply to cases involving simple false denials of guilt in response to government initiated inquiries. See, e.g., United States v. Taylor, 907 F.2d 801 (8th Cir. 1990); United States v. Equihua-Juarez, 851 F.2d 1222 (9th Cir. 1988); United States v. Cogdell, 844 F.2d 179 (4th Cir. 1988); United States v. Fitzgibbon, 619 F.2d 874 (10th Cir. 1980); United States v. King, 613 F.2d 670 (7th Cir. 1980); United States v. Chevoor, 526 F.2d 178 (1st Cir. 1975). These courts have concluded, inter alia, that mere denials of guilt do not impair the basic functions of the agency to which the statement is made. But even where it is recognized, the "exculpatory no" doctrine is not applicable in situations in which the statements are more than mere denials of the accusation of criminal activity. United States v. Van Horn, 789 F.2d 1492, 1511 (11th Cir. 1986)("The exception . . . does not apply when a person attempts to affirmatively mislead a government investigation"); United States v. North, 708 F. Supp. 364, 369 (D.D.C. 1988), rev'd in part and vacated in part on other grounds, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C. Cir. 1990).
Other courts have rejected the "exculpatory no" exception to § 1001. See, e.g., United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994)(en banc); United States v. Steele, 933 F.2d 1313 (6th Cir. 1991)(en banc). In addition, a few courts have neither adopted nor rejected the "exculpatory no" doctrine. United States v. Barr, 963 F.2d 641 (3d Cir. 1992); United States v. Cervone, 907 F.2d 332, 342 (2d Cir. 1990); United States v. White, 887 F.2d 267 (D.C. Cir. 1989).