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912

Falsity

Section 1001 of Title 18, United States Code, requires that the statement or representation actually be false, and the government has the burden of establishing the alleged falsity of the statement. Webster's 3d International Dictionary defines the adjective "false" as "not corresponding to truth or reality." Although a statement may be misleading, unauthorized, or even fraudulent, a conviction under this section generally cannot be sustained unless the statement also is false. See United States v. Diogo, 320 F.2d 898, 905-09 (2d Cir. 1963)(literally true that defendant married). The statute also covers half-truths where there is a duty to speak the truth--as in a sworn deposition before an agency. See generally United States v. Lutwak, 195 F.2d 748 (7th Cir. 1948), aff'd, 344 U.S. 604 (1953); United States v. DeRosa, 783 F.2d 1401, 1407 (9th Cir. 1986), cert. denied, 477 U.S. 908 (1986).

The question whether a literally true statement can also be a false representation is an open one. While the Diogo court held that a literally true statement cannot be said to be a false representation, a contrary holding was reached in United States v. Rodgers, 624 F.2d 1303, 1310-11 (5th Cir. 1980), cert. denied, 450 U.S. 917 (1981). This problem often can be avoided by casting the indictment in terms of a "concealment of a material fact" rather than the making of a false statement or representation. Diogo, 320 F.2d 902.

A false or fictitious statement or representation is an assertion that is untrue when made or when used, and that is known by the person making it to be untrue. United States v. Worthington, 822 F.2d 315, 319 (2d Cir.), cert. denied, 484 U.S. 944 (1987). A fraudulent statement or representation is an assertion that is known to be untrue and that is made or used with the intent to deceive. Id.; 2 E. Devitt, C. Blackmar & K. O'Malley, Federal Jury Practice and Instructions, § 37.08 (1990). The government need prove only that the statements were false "under a reasonable interpretation." United States v. Adler, 623 F.2d 1287, 1289 (8th Cir. 1980).

But if a defendant's statement (or the government's question or form requiring an answer) is ambiguous, it is incumbent upon the government to negate any reasonable interpretation that could make the defendant's statement factually correct. See United States v. Anderson, 579 F.2d 455 (8th Cir.), cert. denied, 439 U.S. 980 (1978); United States v. Race, 632 F.2d 1114 (4th Cir. 1980); United States v. Migliaccio, 34 F.3d 1517 (10th Cir. 1994)(involving § 1341). Thus, the defendant may wish to offer evidence, including expert testimony, that a government form or document was vague and ambiguous. United States v. Barsanti, 943 F.2d 428, 432-33 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992); United States v. Hauck, 980 F.2d 611, 614 (10th Cir. 1992). In United States v. Manapat, 928 F.2d 1097 (11th Cir. 1991), the court found the airman's medical certificate (which included two of 23 questions about "convictions" on a form regarding medical history) was fundamentally vague. Finally, even if a question is arguably ambiguous, "the defendant's understanding of the question is a matter for the jury to decide." United States v. Bell, 623 F.2d 1132, 1136 (5th Cir. 1980).

[cited in USAM 9-42.001]