[tptacek]

Did you miss the words "knowingly and willingly" in the statute?

Because the scenario you laid out for people randomly breaking the law in their daily life was "lying about ever going to strip clubs to someone who turned out to be a plainclothes cop".

I think the statute you cited is a pretty poor example of a law normal people routinely violate.

[thaumasiotes]

The statute cited says, in relevant part:

    whoever, 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

(clauses 1,2,3 are linked by "or")

    shall be fined under this title, imprisoned not more
    than 5 years or, if the offense involves international
    or domestic terrorism (as defined in section 2331),
    imprisoned not more than 8 years, or both.

"Knowingly" making a false statement just means you're aware that what you're saying is untrue. What part of that protects you from liability for lying to someone you've never met?

The US Attorney's Manual ( http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit... ) tells us that the jurisdictional requirement is satisfied if any of the following three circumstances hold:

    1. the agency had the power to act on the statement;
    2. there was an "intended" relationship between the act
       and the Federal government; or
    3. the act was calculated to induce government action.

Lying to the guy on the sidewalk obviously won't satisfy (2) or (3), but it will satisfy (1).

They give several examples of what makes a violation, of which my favorites are "false statements to oil company subject to federal regulation" and "false time sheet submitted to accounting office of community organization receiving CETA funds". How are you distinguishing lying to your boss about your hours worked from lying to the guy on the street about whether you were in a strip club?

[tptacek]

No. Three issues.

First, your source doesn't deal (in ANY of its exhausting pages) with the implications of a defendant making false statements to an unknown government agent. In every situation it refers to, including those involving non-government agents performing government functions, the defendant knows they're disclosing something material to a government function of some sort. Read closely. (It is especially annoying how close the "Things the government must prove" page comes close to settling this.)

Second, SCOTUS disagrees with you. For instance, see Liparota v. US. The government is required to prove mens rea.

Third, 18 USC 1001 is ambiguous (there's a sprawling discussion on Volokh about it), and, where statutes are ambiguous, the rule of lenity requires that the ambiguity be resolved in favor of the defendant. Here, you raise the concern that 1001 is ambiguous as to whether the defendant must know both that they are lying and speaking to an agent of the government, or whether merely lying suffices. Tie goes to the runner.

Can you find a case where someone has had an upheld conviction under 1001 for lying to someone they didn't know was an agent of the government? I looked.

No, I don't think saying you don't go to strip clubs to a plainclothes cop investigating the Strip Club Strangler actually makes you a criminal.

[thaumasiotes]

The elements of the crime are:

1. You are "in" a matter subject to the jurisdiction of any branch of the US government.

2. You knowingly (and willfully) make a false statement.

The entity your statement is directed to is not mentioned. We have cases of convictions under section 1001 for making knowing false statements to someone who was known not to be a government agent. As a side note, I was fairly explicit in my earlier comment, saying "there is no requirement that you be aware of any information concerning the person you're lying to"; it would have been nice if you'd indicated your disagreement then. Again, the object of your deceit is not even mentioned in the law.

As to your second point, I haven't said that section 1001 defines a strict liability offense (for example, if I lie to investigators in the belief that what I'm saying is true, mens rea would be hard to show). I'm saying that the way this law is defined conflicts with the concept behind mens rea (compare my prior words, "this spits in the face of the mens rea concept"), in that liability can attach to you based on facts you couldn't have known (though you'll still have "mens rea" in that you knew you were lying).

To the third point, if speaking to an agent of the government is not an element of the crime (and since you can be convicted without having spoken to an agent of the government, that seems likely), it's hard to see why the prosecution would have to prove that you knew you were speaking to one.

The fact that a conviction hasn't occurred under a particular set of facts does not address my complaint of overcriminalization. I just spent dozens of words arguing that criminal statutes cover, in their inappropriate breadth, much more conduct than they should, including conduct that "most" would agree should not be covered at all. This kind of thing, where prosecutors could go after anyone but choose to go after the politically unpopular (lest their power to pursue anyone be taken away), is a terrible development. If you think a conviction under those facts would be so ridiculous... is it ridiculous enough that we should remove it from the reach of that law?

Remember, the fact that a conviction with unusual facts has never occurred doesn't block you from suffering the full penalty when you become the first person to fit the pattern. If you can be convicted under section 1001 for lying to known non-government-agents, and you can be convicted for lying to known government agents in a proceeding you weren't aware of, you can be convicted of lying to unknown government agents in a proceeding you weren't aware of.

I would be interested in such discussion on Volokh as you cared to bring to my attention; searching the site for "18 USC 1001" brought up a lot of mentions but no discussions (that I found).

[tptacek]

I stand by my previous comment, and, further harming your argument:

* It appears (and obviously so in retrospect) that 1001 applies only to agents of the federal government; lying to a plainclothes police officer can't violate 18 USC 1001.

* Convictions on 18 USC 1001 have been overturned simply because the agent eliciting the statement was "unfair", for instance by concealing that they already knew the answer.

* US v Stark says held that mere denial of a fact absent a legal duty to speak didn't create a material breach of 1001 (your example was a simple denial).

* US v. Schnaiderman held that "willfulness" for 1001 requires an affirmative act calculated to confound a function of the state. Which also breaks your example, and refutes several of the points you've made.

It is apparently so difficult to win 1001 cases that US Attorneys are required to get special permission before bringing them against defendants who have simply lied to investigators during criminal investigations.

I was sick at home with a head cold today and had time to do some research. :)

I conclude that you are not just wrong, but comprehensively wrong. But I'm grateful to have a wild goose to chase!

[SamReidHughes]

I don't see why you're parsing "knowingly and willfully" as including knowledge of the matter being within the jurisdiction of the executive, legislative, or judicial branch, when the sentence is not structured that way.

[tptacek]

Huh? Here's the exact scenario I responded to:

If a guy on the street asks you where you just came from, and you lie to him ("Church. I don't visit strip clubs"), that's your right. Unless he was a plainclothes LEO.

The statute he cited does not make that scenario criminal.

[SamReidHughes]

Okay, never mind, you're right, I got mixed up about the application of "knowingly and willfully" to the materiality.