February 2, 2016

When Law Enforcement Comes Knocking — What Are Your Options?

Part 2 of 5: When You Lie To The Government, What Crime (Or Crimes) Are You Committing?

In Part 1 of my series on government interviews, I discussed the options available to someone who is approached by government agents for an interview, and suggested that the best option is probably to postpone the interview and contact a white collar defense attorney for advice.  In Part 2 of this series, I’ll look at the criminal statutes you could be violating if you lie to the government.  And remember, it’s usually much easier for the government to prove that someone lied to them than to prove the underlying crime that was being investigated.  That’s why the government pursues so many of these cases.

The False Statements Statute, Section 1001

The key statute used by the government to charge someone with lying to government agents is what’s called the false statements statute, found at 18 United States Code, Section 1001.  So what are the elements of Section 1001?  In other words, what could result in the government charging you with a violation of Section 1001?  The elements of Section 1001 are straight forward:

  • A false statement (oral or written) was made to a government agency or employee of that agency
  • The statement was material
  • The statement was made with knowledge of its illegality
  • The statement was made in a matter within the jurisdiction of a federal agency, or the executive, legislative or judicial branches of the federal government

It’s also important to know that to be charged with a violation of Section 1001 you don’t need to have made a written statement or have been under oath.  Rather, all statements are covered:

  • Oral and written
  • Sworn and unsworn
  • Voluntary and required by law
  • Signed or unsigned

Even silence can constitute a false statement under Section 1001 when it serves to mislead.  So, if you’ve submitted to an interview, and you learn that the agents have key facts wrong, you may need to speak up and correct their misunderstanding.

A key element of Section 1001 is that the statement must be “material”.  What does that mean?  The Supreme Court has held that a false statement is considered to be material if it has a “natural tendency to influence, or [be] capable of influencing” the government’s investigation.

  • Therefore, the government doesn’t even need to prove that your lie influenced anyone.
  • The government need only prove that the false statement was significant to its inquiry.

Fortunately, after much judicial criticism, the government has recently conceded that, in order to be convicted under Section 1001, you must know not only that your statement is false, but also that it’s a crime to lie to the government.  This should prompt government agents to advise an individual prior to his or her interview that lying to the government is a crime, but I suspect they’ll do it in a very innocuous way and won’t highlight it.  So beware.

Some Other Criminal Statutes To Be Aware Of

If you lie to the government, Section 1001 isn’t the only criminal statute you need to worry about.  Under the appropriate circumstances, you could also be charged with obstruction of justice, “impeding” an investigation, or with perjury if you’re under oath and either testify falsely or submit a false declaration in a proceeding.

Takeaway

Given all of the pitfalls you could face if you submit to a surprise government interview, including the possibility of facing the criminal charges discussed herein if you lie, perhaps the smartest thing to do if approached by government agents is to politely turn them away and reach out to an experienced white collar defense lawyer for advice.

Contact Me Now If You Have Questions – Even if you are outside New York and New Jersey, I work with experienced white collar defense attorneys across the country.  After we speak, I can make an introduction.

This blog is the second of several that I’ll be posting on the issue of government interviews.  If you’d like to learn more, please feel free to reach out to me at (212) 592-1513 or through email at drosenfield@herrick.com. I practice white collar criminal defense and securities and bank regulatory defense in New York, New Jersey and elsewhere, and my contact information is included in the link below.

LINK TO DAVID ROSENFIELD’S CONTACT INFORMATION

David Rosenfield

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When You Lie To The Government, What Crime (Or Crimes) Are You Committing?
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