03.11a. Going to Jail for Lying to Police; Martha Stewart Guilty of Silence--Jury Instructions; USC 18:1001; Law Review Articles by Kim and Gomez. I posted on Section 1001 on March 8. Professor Tung Yin of Iowa discusses Section 1001. He points out that lies to police are bad.

But suppose instead, you respond falsely, ... By concocting a false story, you waste the government's time and resouces.

Quite right. It is a bad thing, usually, when people lie to policemen, or even refuse to talk to them. It is also a bad thing to deny guilt when you are really guilty. In fact, it is usually (though not always) a bad thing to lie to anyone, policeman or not. The question is whether to criminalize the behavior. I don't see why lying to federal policemen should be more criminal than lying to anyone else, particularly if you aren't aware that the person you are talking to is a federal employee.

Professor Yin also says,

I've noticed that the blogosphere is awash with concern about the reach of Section 1001, with many commentators (Eric Rasmusen; >Eugene Volokh; Steve Bainbridge; >TalkLeft) concluding that people may be less willing to talk to the Feds as a result; indeed, some commentators suggest that you should now never speak to the Feds unless subpoenaed. While Section 1001 does have a very broad scope, I think it's useful to keep in mind that there are some important limitations. First, the false statement must be material; thus, Rasmusen's concern that "you would have to go to jail if you deliberately told the census taker you were a Methodist when you were really a Catholic" is really a hyperbole.

I don't think it's hyperbole, though I could be convinced otherwise. What is "material"? The very purpose of the Census inquiry is to find out my religion. If my answer is not material, then none of the Census activities are. That's why I chose that example. My answer's importance is trivial, but it is strongly material. The government doesn't have some indirect purpose, such as discovering whether I committed a crime-- its interest is directly in whether I am a Methodist or not. The answer is of trivial importance only because the question has trivial importance-- but then, one might say that whether a given criminal is convicted has trivial importance too, when you look at the broad picture of government activities.

Note, too, that reliance on the false statement by a government official is not an element of the crime. Jaeyoun Kim (see the reference at the end) has a relevant footnote:

United States v. Evans, 149 F. Supp. 2d 1331, 1342 (M.D. Fla. 2001) (finding defendant guilty of making a false statement because "proving reliance is not necessary to prove the crime of making a false statement under 18 U.S.C. � 1001(a)").

Professor Yin then brings up a point worth discussing: the penalty for violating Section 1001:

Finally, Rasmusen raises the specter of going to prison for simply lying to the government . But Section 1001 carries a base offense level of 6 in the sentencing guidelines (2B1.1), which with a criminal history category of I (no prior offenses), carries a sentencing range of 0-6 months, with probation a possibility. Even with probation, a felony conviction is nothing to sneeze at, but let's be clear -- you are not going to go to federal prison for 5 years on a single Section 1001 conviction.

I agree, and thought of commenting on this, but then decided that the 5 year peanlty is indeed relevant, and saying it is only 0-6 months for a first offense is misleading. There are three reasons:

1. If you have a criminal history, etc., then the Sentencing Guidelines are going to hit you harder, and the penalty can indeed be 5 years in prison. I don't think that 5 years in prison is an appropriate penalty for a minor lie even if the guilty person has a previous record. Ex-cons should have rights too.

2. If the prosecutors are out to get you, they'll hang other charges on top of the basic one, leveraging the penalty up. This is perhaps what happened to Martha Stewart. First, you find a lie the person told, to get the Section 1001 conviction. Then, you see if they got someone else to participate in the lie, to try to make it into conspiracy. I'm not enough of an expert to know exactly how to proceed, but "obstruction of justice" and "RICO" charges might be available too. But this leveraging relies on having the Section 1001 guilt in the first place.

3. If the prosecutors are out to get you, they can go after you for more than one false statement. After your first conviction, you are not a first-time offender any more, and 0-6 months no longer applies. In principle, this method can be used to keep someobody in prison for life.

To illustrate: could the government go after John Kerry? He apparently has lied about Haiti, in discussions of government policy, surely a matter under the jurisdiction of the executive branch (but maybe I'm missing a term of art here). Here are the John statements:

Kerry told the New York Times that Haiti under Aristide was a "democracy" and a "democratic regime."

A Cox News Service story reported that, on Haiti, "Kerry challenged the premise of undercutting a democratically elected leader based on the quality of their governance."

Kerry's daughter Vanessa said that the United States "just helped overthrow, basically overthrow a democratically elected president." Asked on Good Morning America about his daughter's statement, Kerry did not disagree with it or correct it.

Again Kerry ignores the conclusions made by independent election observers. In calling Aristide a democratically elected president, Kerry disregards the Organization of American States's conclusion that Aristide's 2000 election was hopelessly tainted.

Senator Kerry can try to show that not all the elements necessary for the crime are present-- that he didn't know his statements were false, for example (though I think it wouldn't be hard to find evidence that as a U.S. Senator he should have known better, and was corrected).

But though Kerry might get off on matters of proof, I don't think lack of the elements is the real problem. Do you think he should be found guilty of crime if he did lie intentionally?

I quite agree that proving guilt may be hard in Section 1001 cases, and probably just as hard as with any crime, if the accused is innocent. What I'm concerned about are the *guilty* people, who number in the tens of millions, I'm sure. The problem is not that if the prosecutor is out to get you, he can invent false evidence for this kind of crime; it's that he can very likely find (or create by "entrapment" -- in quotes because I mean a legal version of entrapment) true evidence.

Kim's article is pretty good for footnotes on cases of various kinds. He points out some defenses to lying that work:

Other effective defenses include: the five-year statute of limitations; n88 the good faith belief that a false statement was not a binding obligation; n89 and duress, so long as the defendant proves duress by a preponderance of the evidence. n90

He also points out some defenses that judges have rejected:

Additional defenses, though thus far unsuccessful, include: multiplicity and duplicity of indictment, n91 entrapment, n92 [*526] collateral estoppel, n93 good faith reliance on expert advice, n94 "active misleading" by past governmental conduct, n95 good faith reliance on custom, n96 "literally true" answers that actively mislead the government, n97 and recantation. n98

The Supreme Court has ruled that illegal government questioning does not constitute a defense to a violation because misstating the truth is not a valid legal method to challenge the government's right to ask questions. n99

One final topic I'd like to discuss: Are you safe if you keep quiet?

Not necessarily. As Kim says,

Silence may constitute a false statement [*515] under � 1001 when it serves to mislead or when the individual has a duty to speak. n23

n23 Leal, 30 F.3d at 585 (holding silence may constitute false and fraudulent representation under � 1001); Irwin, 654 F.2d at 676 (holding blank response can be false statement where duty to answer exists), overruled on other grounds by Daily, 921 F.2d at 1003. Courts, however, do not regard silence, followed by a subsequent answer that does not contradict the implied response of the silence, to signify a negative answer to a question or to be a prosecutable act of concealment. See Anzalone, 766 F.2d at 683 (1st Cir. 1985) (finding no concealment because defendant had no duty under Currency Transaction Reporting Act to inform bank of structured nature of transactions); United States v. Jones, 703 F.2d 473, 475 (10th Cir. 1983) (finding defendant's compelled responses in judgment debtor examination could not trigger � 1001 violation related to prior interview with IRS in which he had said nothing because silence cannot be contradicted).

This takes us back to the Martha Stewart case. I haven't seen the actual jury instructions, but apparently "concealment" was in there. That is a bit stronger than "silence", but with a little stretching, silence can be a form of concealment.
In her instructions to the jury, Judge Cedarbaum said the jury needed to conclude that a defendant intentionally made a material false statement to investigators or concealed material facts from authorities to reach a guilty verdict. Although the government didn't concentrate on the concealment aspect of the false statement charge in its presentation, Assistant U.S. Attorney Karen Patton Seymour hit the point in her rebuttal statement Tuesday. She said Ms. Stewart concealed her knowledge of the Waksals' selling from investigators and that it was "preposterous" that Ms. Stewart didn't recall being tipped.

Lawyers for Ms. Stewart and Mr. Bacanovic argued Friday that the judge shouldn't include the "conceal" language in the charge because they didn't have enough notice of that line of argument, nor did the jury know what questions the defendants were asked. But the judge said that aspect had been present in the indictment, which was filed in June 2003, and ruled against them.
("Executives on Trial: Stewart's Case Goes to the Jury; Panel Deliberates for Four Hours And Asks to See Key Testimony; Panel Will Return This Morning," Matthew Rose and Kara Scannell. Wall Street Journal. Mar 4, 2004. pg. C.1)

At this point, I've run out of time. Here are a few more tidbits from my reading:

United States v. White, 765 F.2d 1469, 1472 (11th Cir. 1985) (explaining materiality test precludes frivolous prosecutions).

Brogan v. United States, 522 U.S. 398 (1998)

Gomez tells us that the Act really dates back to 1934, when an earlier statute that punished lying in monetary claims against the government was expanded to use what is essentially the current broad language.

Michael Gomez, "COMMENT: RE-EXAMINING THE FALSE STATEMENTS ACCOUNTABILITY ACT," Houston Law Review, Summer 2000, 37 Hous. L. Rev. 515, 20038 words .

JaeYOUN JOHN KIM, False Statements American Criminal Law Review Spring 2003, 40 Am. Crim. L. Rev. 511, 6781 words.

[in full at 04.03.11a.htm .      Erasmusen@yahoo.com. ]

To return to Eric Rasmusen's weblog, click http://php.indiana.edu/~erasmuse/w/0.rasmusen.htm.