1996 Amendments to 18 U.S.C. § 1001
The False Statements Accountability Act of 1996 (FSAA), Pub. L. No.
104-292, H.R. 3166 (October 11, 1996), made several changes that affect the
of United States Attorneys' Offices, including revisions to 18 U.S.C.
1001, 1505, 6005, and 28 U.S.C. 1365. This section describes the changes to
Section 2 of the FSAA revises section 1001 of title 18, United
Code. The new 18 U.S.C. § 1001, effective October 11, 1996, reads as
- Except as otherwise provided in this section, whoever,
matter within the jurisdiction of the executive, legislative, or judicial
of the Government of the United States, knowingly and willfully --
- falsifies, conceals, or covers up by any trick, scheme, or device a
- makes any materially false, fictitious, or fraudulent statement or
- makes or uses any false writing or document knowing the same to contain
materially false, fictitious, or fraudulent statement or entry; shall be
under this title or imprisoned not more than 5 years, or both.
- Subsection (a) does not apply to a party to a judicial proceeding, or
party's counsel, for statements, representations, writings or documents
by such party or counsel to a judge or magistrate in that proceeding.
- With respect to any matter within the jurisdiction of the legislative
subsection (a) shall apply only in --
- administrative matters, including a claim for payment, a matter
to the procurement of property or services, personnel or employment
or support services, or a document required by law, rule, or regulation to
submitted to the Congress or any office or officer within the legislative
- any investigation or review, conducted pursuant to the authority of any
committee, subcommittee, commission or office of the Congress, consistent
applicable rules of the House or Senate.
The new section 1001 contains several important features. First,
2 of the FSAA restores the Department's ability to prosecute false
made to the judicial and legislative branches. In 1995, the Supreme Court
reversed long-settled precedent in Hubbard v. United States, 115
1754 (1995), and held that a court is neither a "department" nor an "agency"
under § 1001. Although the Court's opinion left open the possibility
a judicial or legislative entity might still be considered an "agency" under
section 1001, several courts interpreted Hubbard broadly to mean that
section 1001 applies only to false statements made to the executive branch.
See, e.g., United States v. Dean, 55 F.3d 640 (D.C. Cir.
cert. denied, 116 S.Ct. 1288 (1996); United States v.
59 F.3d 1291, 1301 (D.C. Cir. 1995). As of March 1997, there was pending in
District of Columbia Circuit an interlocutory appeal concerning whether the
version of section 1001, even after Hubbard, still applies to
disclosure statements that Members of Congress filed, pursuant to the Ethics
Government Act, with the Clerk of the House of Representatives before
1996. See United States v. Oakar, No. 96-3084 (D.C. Cir.).
Prosecutors therefore should not concede, in any pleadings or arguments
in federal courts, that the old section 1001 does not apply to such
at least until the Court of Appeals for the District of Columbia Circuit
The new statute effectively overrules Hubbard, and expressly
provides that section 1001 covers false statements that are made to all
branches of the federal government, without regard to whether the entity may
categorized as a "department" or "agency."
By including certain statutory terms (e.g., "jurisdiction"
"statement") from the former section 1001 without change, Congress intended
those terms, as reenacted, continue to carry with them the body of existing
judicial constructions of those terms. For example, with respect to
made within the jurisdiction of the executive branch, prosecutors should
to consider all statements -- whether oral or written, and whether sworn or
unsworn -- as being within the scope of the new section 1001. See
Rep. No. 104-680 (July 16, 1996) at 8 ("Other than establishing materiality
an element of all three offenses, the Committee does not view the offenses
defined in paragraphs (1), (2) and (3) as changing already existing case law
it relates to the elements of the offenses.")(There was no Senate report
concerning the Act, and the House report covers only the changes that the
made to section 1001).
Section 2 of the FSAA, however, contains certain limitations
statements within the jurisdiction of the judicial and legislative branches.
Subsection 2(b) of the FSAA provides that statements made to a judge or
magistrate by parties or their counsel in a judicial proceeding will not be
subject to prosecution under section 1001. Section 2 of the FSAA thus
a limited version of the "judicial function exception," which was created by
courts under the old section 1001 to avoid the chilling of advocacy that
occur if attorneys and parties were subject to prosecution for concealing
from a court or jury. Under the codified version of the judicial function
exception, parties or their counsel may be prosecuted for false submissions
other entities within the judicial branch, such as the probation office.
See H.R. Rep. No. 104-680 at 9. Non-parties may be prosecuted for
false submission within the jurisdiction of the judicial branch.
In subsection (c) of amended § 1001, Congress created a
"legislative function exception." Under the new provision, false statements
within the jurisdiction of the legislative branch are subject to prosecution
if they relate to administrative matters or congressional investigations
conducted consistent with the applicable congressional rules. Amended
will thus reach those documents that have most often been the subject of
congressional false statement prosecutions, such as vouchers, payroll
and Ethics in Government Act (EIGA) financial disclosure forms. The
was intended to protect, among other things, the free flow of constituent
submissions to Congress. See H.R. Rep. No. 104-680 at 4-5.
Amended § 1001 also expressly includes materiality as an
under each of the three clauses in subsection (a). This resolves a conflict
among the courts on that issue. See, e.g., United States v.
Corsino, 812 F.2d 26 (1st Cir. 1987); United States v. Elkin, 731
1005 (2d Cir. 1984).
[cited in Criminal Resource Manual 1743; USAM 9-42.001]