False Statements to a Federal Investigator
The circumstance often arises in which a false statement is made in
response to an inquiry by an FBI or other Federal agent, or made voluntarily
an agent. The issue is whether such a statement is within the purview of 18
U.S.C. § 1001.|
It is the Department's policy not to charge a § 1001 violation
situations in which a suspect, during an investigation, merely denies guilt
response to questioning by the government. See USAM 9-42.160 for a discussion of the
policy. This policy is to be narrowly construed, however; affirmative,
discursive and voluntary statements to Federal criminal investigators would
fall within the policy. Further, certain false responses to questions
for administrative purposes (e.g., statements to border or United States
Immigration and Naturalization Service agents during routine inquiries) are
prosecutable, as are untruthful "no's" when the defendant initiated contact
the government in order to obtain a benefit.
By its plain terms, § 1001 (as it existed before it was amended
October 1996), broadly reaches "[w]hoever, in any matter within the
of any department or agency of the United States knowingly and willfully . .
.makes any false, fictitious or fraudulent statements or representations. .
For example, if the false statement was volunteered to an FBI agent the
Court has held that § 1001 does apply. United States v.
U.S. 475 (1984). In Rodgers the court concluded: (1) that criminal
investigations fell within the term "in any matter"; and (2) that the FBI
qualified as a "department or agency." In Rodgers the language
the jurisdiction" was held to merely differentiate the official, authorized
functions of an agency or department from matters peripheral to the business
that body. From Rodgers it is also clear that the term
defined as the "right to say and the power to act" (Gonzales v. United
States, 286 F.2d 118 (10th Cir. 1960), cert. denied, 365 U.S. 878
(1961)), should not be given a narrow or technical meaning (United States
Fern, 696 F.2d 1269 (5th Cir. 1983)), and extends to the power to
investigate. The statute has also been held to apply if the false response
made to an investigator other than an FBI agent. See United
Ratner, 464 F.2d 101 (9th Cir. 1972)(employee of the United States
Revenue Service); United States v. Mahler, 363 F.2d 673 (2d Cir.
1966)(employee of the United States Securities and Exchange Commission);
Frasier v. United States, 267 F.2d 62 (1st Cir. 1959)(employee of the
United States Army); Tzantarmas v. United States, 402 F.2d 163 (9th
1968), cert. denied, 394 U.S. 966 (1969)(employee of the United
Immigration and Naturalization Service).
Although § 1001 does not provide for exceptions, a number of
have held that it does not apply to cases involving simple false denials of
in response to government initiated inquiries. See, e.g., United
States v. Taylor, 907 F.2d 801 (8th Cir. 1990); United States v.
Equihua-Juarez, 851 F.2d 1222 (9th Cir. 1988); United States v.
Cogdell, 844 F.2d 179 (4th Cir. 1988); United States v.
619 F.2d 874 (10th Cir. 1980); United States v. King, 613 F.2d 670
Cir. 1980); United States v. Chevoor, 526 F.2d 178 (1st Cir. 1975).
courts have concluded, inter alia, that mere denials of guilt do not impair
basic functions of the agency to which the statement is made. But even
is recognized, the "exculpatory no" doctrine is not applicable in situations
which the statements are more than mere denials of the accusation of
activity. United States v. Van Horn, 789 F.2d 1492, 1511 (11th Cir.
1986)("The exception . . . does not apply when a person attempts to
mislead a government investigation"); United States v. North, 708 F.
364, 369 (D.D.C. 1988), rev'd in part and vacated in part on other
grounds, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C.
Other courts have rejected the "exculpatory no" exception to §
1001. See, e.g., United States v. Rodriguez-Rios, 14 F.3d
(5th Cir. 1994)(en banc); United States v. Steele, 933 F.2d 1313 (6th
1991)(en banc). In addition, a few courts have neither adopted nor rejected
"exculpatory no" doctrine. United States v. Barr, 963 F.2d 641 (3d
1992); United States v. Cervone, 907 F.2d 332, 342 (2d Cir. 1990);
United States v. White, 887 F.2d 267 (D.C. Cir. 1989).
[cited in USAM 9-42.001; USAM 9-42.160]