Section 1001 of Title 18, United States Code, requires that the
statement or representation actually be false, and the government has the
of establishing the alleged falsity of the statement. Webster's 3d
International Dictionary defines the adjective "false" as "not
to truth or reality." Although a statement may be misleading, unauthorized,
even fraudulent, a conviction under this section generally cannot be
unless the statement also is false. See United States v.
320 F.2d 898, 905-09 (2d Cir. 1963)(literally true that defendant married).
statute also covers half-truths where there is a duty to speak the truth--as
a sworn deposition before an agency. See generally United States
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),
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
holding was reached in United States v. Rodgers, 624 F.2d 1303,
(5th Cir. 1980), cert. denied, 450 U.S. 917 (1981). This problem
can be avoided by casting the indictment in terms of a "concealment of a
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
is untrue when made or when used, and that is known by the person making it
be untrue. United States v. Worthington, 822 F.2d 315, 319 (2d
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
used with the intent to deceive. Id.; 2 E. Devitt, C. Blackmar & K.
O'Malley, Federal Jury Practice and Instructions, § 37.08
government need prove only that the statements were false "under a
interpretation." United States v. Adler, 623 F.2d 1287, 1289 (8th
But if a defendant's statement (or the government's question or
requiring an answer) is ambiguous, it is incumbent upon the government to
any reasonable interpretation that could make the defendant's statement
correct. See United States v. Anderson, 579 F.2d 455 (8th
cert. denied, 439 U.S. 980 (1978); United States v. Race, 632
1114 (4th Cir. 1980); United States v. Migliaccio, 34 F.3d 1517 (10th
1994)(involving § 1341). Thus, the defendant may wish to offer
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
certificate (which included two of 23 questions about "convictions" on a
regarding medical history) was fundamentally vague. Finally, even if a
is arguably ambiguous, "the defendant's understanding of the question is a
for the jury to decide." United States v. Bell, 623 F.2d 1132, 1136
[cited in USAM 9-42.001]