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Criminal Resource Manual

922. Elements of 18 U.S.C. § 287

Under 18 U.S.C. § 287, the government must establish that the defendant:

  1. made or presented a false, fictitious, or fraudulent claim to a department of the United States;
  2. knew such claim was false, fictitious or fraudulent; and
  3. did so with the specific intent to violate the law or with a consciousness that what he was doing was wrong.

United States v. Slocum, 708 F.2d 587, 596 (11th Cir. 1983)(citing United States v. Computer Sciences Corp., 511 F. Supp. 1125, 1134 (E.D. Va. 1981), rev'd on other grounds, 689 F.2d 1181 (4th Cir. 1982)).

Under Section 287, unlike 18 U.S.C. § 1001, there may not be a requirement that the statements or claims be material; the United States Courts of Appeals are split on the issue. United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992)(no materiality component); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.), cert. denied, 469 U.S. 822 (1984)(same); United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983) (materiality component); United States v. Snider, 502 F.2d 645, 652 n.12 (4th Cir. 1974) (same). The conflict was noted in United States v. White, 27 F.3d 1531, 1535 (11th Cir. 1994), which did not resolve the issue. Presumably, if a materiality component exists, it is a matter for jury resolution in light of United States v. Gaudin, 115 S.Ct. 2310 (1995).

Although it is clear from the case law that specific intent to defraud is not required for a conviction under 18 U.S.C. § 287, the United States Courts of Appeals are divided on the issue of whether willfulness is an essential element of the crime. For example, the United Stated Courts of Appeals for the Tenth, Fifth and Second Circuits have held that willfulness is not an essential element of Section 287, while the Ninth, Eighth and Fourth Circuits appear to indicate that willfulness is an essential element of Section 287.

Presentation of a claim is more than an intention to make a claim. The claim must be presented actually and physically, and thereby made to the government. The clearest case is presentation directly to the government; however, the claim may go through an intermediary. United States v. Murph, 707 F.2d 895, 896 (6th Cir.) cert. denied, 464 U.S. 844 (1983), (court rejected the argument that defendant did not cause a violation of Section 287 because the claim was submitted by an intermediary; the defendant sold a tax return, falsely claiming a refund, to the intermediary and knew that the return would be presented to the government to claim the refund). Presenting or cashing a refund check constitutes making a false claim on the United States. See United States v. Branker, 395 F.2d 881 (2d Cir. 1968), cert. denied, 393 U.S. 1029 (1969). Although Section 287 does not define the term "claim" (United States v. Barsanti, 943 F.2d 428, 432-33 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992)), in United States v. Cohn, 270 U.S. 339 (1926), the United States Supreme Court wrote:

While the word "claim" may sometimes be used in the broad juridical sense of "a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty," it is clear, in the light of the entire context, that in the present statute, the provision relating to the payment or approval of a "claim upon or against" the government relates solely to the payment or approval of a claim for money or property to which a right is asserted against the government, based upon the government's own liability to the claimant.

270 U.S. at 345-36. The civil component of the False Claims Act, 31 U.S.C. § 3729(c), also defines the word "claim."

[cited in USAM 9-42.001]