False Declarations18 U.S.C. § 152(3)
The False Oath provisions of § 152(2) and the False
provisions of 18 U.S.C. § 152(3) are closely related. Subsection (3)
derived from Subsection (2), the "false oath" offense. In 1976, Congress
Section 152 to add Subsection 3. This amendment was made in connection with
creation of 28 U.S.C. § 1746, which authorized the use of unsworn
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
a violation of Subsection 3 are the same as those that apply to a Subsection
violation. The only difference, of course, is that a violation under
3 does not require the false declaration or statement to have been made
The policy behind the false oath/false declaration portions of
152 is that the debtor has a duty to produce honest, complete financial
Bankruptcy law presupposes that one who seeks its protection
deal honestly and fairly with creditors by furnishing a complete and
schedule of assets... A debtor has a paramount duty to consider all
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
certificate, verification, or statement under penalty of perjury as
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:
- the existence of a bankruptcy proceeding;
- the defendant made a false declaration, certificate, verification,
other statement in relation to the bankruptcy proceeding;
- the statement must be material; and
- the statement was known to be false.
Devitt, Blackmar & O'Malley, 2 Federal Jury Practice and
§ 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
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).
States v. Ellis, 50 F.3d 419 (7th Cir.), cert. denied, 116 S. Ct.
PRACTICE TIP: If the statement or testimony is not under oath
under the penalty of perjury consideration should be given to using the
statement provisions of 18 U.S.C. § 1001. See 9-42.000 et seq.
a more in depth discussion of 18 U.S.C § 1001.
PRACTICE TIP: The deliberate omission of assets by the debtor on
bankruptcy petition and schedules will violate this section as well as
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
[cited in USAM 9-41.001]