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848

False Declarations—18 U.S.C. § 152(3)

The False Oath provisions of § 152(2) and the False Declarations provisions of 18 U.S.C. § 152(3) are closely related. Subsection (3) is derived from Subsection (2), the "false oath" offense. In 1976, Congress amended Section 152 to add Subsection 3. This amendment was made in connection with the creation of 28 U.S.C. § 1746, which authorized the use of unsworn statements subscribed to under penalty of perjury but not under oath. Congress added Subsection 3 to Section 152 with the intention of making no changes to the elements of a violation of Subsection 2 of Section 152. Thus, the elements of a violation of Subsection 3 are the same as those that apply to a Subsection 2 violation. The only difference, of course, is that a violation under Subsection 3 does not require the false declaration or statement to have been made under oath.

The policy behind the false oath/false declaration portions of Section 152 is that the debtor has a duty to produce honest, complete financial records.

Bankruptcy law presupposes that one who seeks its protection will deal honestly and fairly with creditors by furnishing a complete and accurate schedule of assets... A debtor has a paramount duty to consider all questions posed on statement or schedules carefully and see that question is answered completely in all respects.

In re Braymer, 126 B.R. 499, 503 (Bankr. N.D.Tex 1991).

Subsection (3) provides:

A person who...knowingly and fraudulently makes a false declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, in or in relation to any case under title 11;...shall be fined..., imprisoned..., or both.

The elements of a false declaration violation have been defined as:

    1. the existence of a bankruptcy proceeding;

    2. the defendant made a false declaration, certificate, verification, or other statement in relation to the bankruptcy proceeding;

    3. the statement must be material; and

    4. the statement was known to be false.

Devitt, Blackmar & O'Malley, 2 Federal Jury Practice and Instructions, § 24.07 (4th ed. 1990).

Since many documents--e.g., the bankruptcy petition, schedules of assets and liabilities, and statement of affairs--in a bankruptcy case are submitted under penalty of perjury as permitted under Section 1746, the potential scope of this statute is very broad. Even leaving a question blank can constitute a false statement and thus violate 18 U.S.C. § 152(3). United States v. Ellis, 50 F.3d 419 (7th Cir.), cert. denied, 116 S. Ct. 143 (1995).

PRACTICE TIP: If the statement or testimony is not under oath or under the penalty of perjury consideration should be given to using the false statement provisions of 18 U.S.C. § 1001. See 9-42.000 et seq. for a more in depth discussion of 18 U.S.C § 1001.

PRACTICE TIP: The deliberate omission of assets by the debtor on the bankruptcy petition and schedules will violate this section as well as constitute a concealment of the assets. It is often advisable to charge both the concealment of the asset and the false statement even though the same asset is involved.

[cited in USAM 9-41.001]