Posted by: Edmund R. Folsom, Esq.
November 3, 2016


[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully…makes any materially false, fictitious, or fraudulent statement or representation…shall be…imprisoned not more than 5 years. Title 18 United States Code, Section 1001.

The above quoted language from the United States Code makes it a federal felony, punishable by up to 5 years in prison, to knowingly and on purpose make any materially false statement to a federal agent performing his or her duties.  A statement may be “materially false” even if it doesn’t actually influence anyone. To be “material” the statement needs only to have a natural tendency to influence, or be capable of influencing, the decision of the decision-making body at issue. United States v. Gaudin, 515 U.S. 506, 510 (1995).  The statute is so broad that federal courts at one point developed what was called the “exculpatory no” doctrine to limit its application, creating an exception for merely denying the commission of an illegal act.  In other words, if an FBI agent asked a person if she did something and the person said “no,” under the “exculpatory no” doctrine that mere denial could not be prosecuted as a violation of 18 U.S.C., Section 1001.  However, in Brogan v. United States, 522 U.S. 398 (1998), the Supreme Court nullified the “exculpatory no” doctrine, declaring it to be a judicially created rule without foundation that was inconsistent with the intent of Congress. Ever since Brogan, it has been clear that a person who does as little as say “I didn’t do that” to a federal agent is fair game for prosecution under 18 U.S.C., Section 1001.  Little people are routinely prosecuted for this offense in federal courts all over the U.S.  The Government even snagged Martha Stewart for it.  The little people must be very careful what they say to a federal agent.

Here’s a story about a Philadelphia judge who recently got dinged for a 1001 violation: http://www.abajournal.com/news/article/suspended_philadelphia_judge_accused_of_lying_to_fbi_about_small_claims_cas

Some folks, however, are too big to fail.

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