Types of Felonies

Is Lying to the FBI a Felony?

It’s obviously a crime to lie when you swear to “tell the truth, the whole truth, and nothing but the truth,” but is it a crime to lie outside of that oath? Lying to a federal agent, such as an FBI agent, is a felony, as per 18 US Code § 1001. However, there are some exceptions and defenses when it comes to this crime, and you do have some rights when speaking with federal agents. To better understand the law, we can review Supreme Court decisions regarding the crime, as well as results of high profile cases of lying to the FBI.

Federal Law 18 US Code § 1001

18 US Code § 1001 is the law that declares lying to a federal agent a felony. It defines someone guilty of this crime as:

“Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

  1. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
  2. makes any materially false, fictitious, or fraudulent statement or representation; or
  3. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”

That means that it’s a crime to make a false statement to any jurisdictions within the executive, legislative, or judicial branches.

“Except as Otherwise Provided”

The exceptions that are “otherwise provided” limit the jurisdictions this law applies to when under the judicial and legislative branches. One of these is that it does not apply within judicial proceedings, meaning that the defendant is under a different law when lying during their court trial. Within the legislative branch, this law only applies when dealing with congressional investigations and reviews, as well as any administrative matters, outlining these as:

  • A claim for payment
  • A matter related to the procurement of property or services, personnel or employment practices, or support services
  • A document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch

“Knowingly and Willfully”

It then also has the requirement of “knowingly and willfully,” which means that the prosecution must actually prove that the defendant knew what they were saying to be false and was intentionally deceiving the federal agency in question. They do not, however, have to prove that the defendant was aware that they were lying to someone considered to be under the jurisdiction provided by this law. That means that if, for example, the defendant was not aware that the Securities and Exchange Commission (SEC) was considered a government entity, it would not be a sufficient defense to have this charge dropped.

“Materiality”

Another aspect that must be proven is materiality. This means that the false statement must have the ability to hamper an investigation or affect a decision being made. According to the decision in United States v. Weinstock, “‘Material’ when used in respect to evidence is often confused with “relevant,” but the two terms have wholly different meanings. To be “relevant” means to relate to the issue. To be “material” means to have probative weight, i.e., reasonably likely to influence the tribunal in making a determination required to be made. A statement may be relevant but not material.” Therefore, the prosecution must only show that the falsity had the ability to have an influence on their proceedings, not that it actually had any effect.

“Falsifies, Conceals, or Covers Up By Any Trick, Scheme, or Device a Material Fact”

The prosecutor must then prove that at least one of three falsities occurred. The first is that the defendant either made a false statement, concealed the truth, or used a type of scheme to cover up a fact.

“Makes Any Materially False, Fictitious, or Fraudulent Statement or Representation”

This is the second scenario of the law and is essentially just any false statement. The law usually does require that the untruth be clear and not one that could have likely been construed in a way the defendant hadn’t intended. This also doesn’t include when the defendant is being questioned during an investigation and denies their guilt of the accused crime, even if they are found to be guilty, as this hasn’t been found to affect the decision making of the investigative process. However, this won’t apply when a suspect freely and voluntary approaches the agency to make the statement.

“Makes or Uses Any False Writing or Document Knowing the Same to Contain Any Materially False, Fictitious, or Fraudulent Statement or Entry”

The final case that could lead to a conviction under this law is a written falsity. This means that the defendant made a written statement, filled out a document, or created some other type of writing knowing that the information in it was not true.

Your Fifth Amendment Rights with Federal Agents

Most people are familiar with the phrase, “I plead the Fifth,” regarding a legal situation in which a defendant doesn’t want to incriminate themselves accidentally. This is part of your Miranda Rights afforded to you by the Fifth Amendment.

If you find yourself in the position where you are being questioned by a federal agent, or any type of law enforcement, it is important to be clear that you will not be speaking without your attorney – even if you think you haven’t done anything wrong. This is the absolute only thing you need to say; you don’t want to inadvertently let something slip that can be used against you. However, it’s possible that your complete silence can be held against you as well. You must be clear that you will not speak with them without your attorney. If they threaten you with a subpoena, then you may let them know that your lawyer will accept that service for you in order to avoid a subpoena being delivered to you at your place of employment – although, this works best if you already have an attorney in your service. They then have to decide if what they think you may know is worth going through the process of obtaining a subpoena. If they already have a subpoena, continue to insist that you will not say anything without your attorney present.

If you are taken into custody, any law enforcement agent is required to read you your Miranda Rights or risk having any evidence obtained thrown out of court. The Fifth Amendment gives the right to those in custody to not “be compelled in any criminal case to be a witness against himself,” meaning that you cannot be forced to speak and potentially incriminate yourself. You should be read your Miranda Rights, which inform you of a few rights you have:

  • “You have the right to remain silent.
  • Anything you say can and will be used against you in a court of law.
  • You have the right to an attorney.
  • If you cannot afford an attorney, one will be provided for you.”

They must also verify that you understand your rights, where you can then either enact your right not to speak or waive your right and be interrogated. However, once they obtain a subpoena, you must go testify in court or risk jail time and a fine. But what about your right not to incriminate yourself? This still applies in court but only to testifying to aspects that could be self-incriminating. You’ll have to discuss this thoroughly with your attorney to know when you can and can’t invoke your Fifth Amendment rights.

Defenses for Lying to a Federal Agent

When making a defense for lying to a federal agent, the first aspects to look at are whether an argument can be made that one of the required conditions of 18 US Code § 1001 is not met. The first to look at is whether the false statement was made “knowingly and willingly,” as if it can be proven that the defendant truly didn’t know that was they were saying wasn’t true, that could be enough to have the charges dropped. Likewise, it can also be proven that the defendant didn’t intend to deceive the agency in question.

Another argument could be made that the false statement in question doesn’t actually fall under the jurisdiction of the branches outlined in 18 US Code § 1001.

While a materiality defense could argue that the false statement could not have had any impact on the agency’s case at hand, simply proving that it didn’t have an effect isn’t enough. Materiality only requires that it could potentially have had an impact on their procedure.

As with any case, it can also be argued that they have the wrong person, and the defendant is not even the one who should be charged, whether by mistake of law enforcement or false accusations. Additionally, if the suspect was brought into custody and not read their Miranda Warning, an attorney can ask that all evidence be thrown out of court as a result of their unlawful interrogation. Pointing out matters of doubt in the case could be effective as well, showing that the prosecution doesn’t actually have enough evidence to sufficiently prove all aspects of the crime occurred.

Court Cases Regarding 18 US Code § 1001

United States v. Pickett

Surrounding the events of September 11, 2001, the country was on edge, and an anthrax scare was running rampant. In the midst of this, a white powder was left on the desk of a police officer on Capitol Hill, along with a note claiming that the powder was anthrax. As it turned out to only be sugar, they pursued charges on the suspect, James Pickett, one of which was making false statements. This was the only charge that stuck, and Pickett fought it all the way to the D.C. Circuit Court, which ruled that the government was not able to fulfill the criteria of being within the legislative branch’s jurisdiction, as when the note was made, it was not “within an investigation or review.” This was significant, as it requires a charge for 18 US Code § 1001 to fulfill all criteria to be proven.

United States v. Yermian

For Esmail Yermian, a little lie on a security questionnaire regarding his employment and criminal history for a new job turned into a felony charge of making false statements. The year prior, Yermian had been convicted of mail fraud, which he failed to report, as well as included some false jobs at companies he hadn’t worked for. He was required to sign a certificate, promising his questionnaire was “true, complete, and correct to the best of [his] knowledge.” However, the company Yermian had been hired at contracts for the Department of Defense. Yermian didn’t know that the questionnaire would be within the government’s jurisdiction, so he argued his case up to Supreme Court. Unfortunately for Yermian, they ruled that “knowingly and willfully” only applies to the false statement itself, not to knowing that the false statement falls in the federal jurisdiction. Therefore, prosecution need not prove that the defendant even was aware they were breaking this law.

High-Profile Cases of Lying to the FBI

From government officials to even cooking TV stars, the US government has pursued charges of lying to a federal agency in several famous cases.

Michael Flynn

Perhaps most fresh on everyone’s minds is the case of Michael Flynn and his testimony regarding the 2016 US presidential election. Flynn served as President Donald Trump’s first national security adviser for only four days before being interviewed by the FBI concerning phone calls he had with Russian ambassador Sergey I. Kislyak in the time frame between President Trump’s election and him officially taking office.

While former President Barrack Obama was still in office, he placed sanctions on Russia in response to the interference Russia had been suspected of having in the 2016 election. Flynn called the Russian ambassador and asked him not to “escalat[e] the situation in response,” which the ambassador agreed to. However, when questioned by the FBI, Flynn denied making these requests and claimed not to remember what the ambassador had said in reply. When the FBI found he was lying, he was charged with making false statements on January 24, 2017 for lying to the FBI. He pleaded guilty and resigned in February.

However, Flynn’s charges were dropped just recently after three years, as it was decided that Flynn’s case didn’t meet the materiality criteria – they couldn’t adequately prove that Flynn’s lies had any actual effect on the FBI’s investigation.

Martha Stewart

At the end of 2017, TV personality Martha Stewart suddenly sold all of her stock in the biotech company, ImClone. Two short days after that, ImClone’s stock dropped 16 percent when they announced that the FDA had not granted their approval for Erbitux, their new cancer-therapy drug. This loss would have cost Stewart $45,673. An investigation revealed that Stewart’s stockbroker, Peter Bacanovic, worked with ImClone’s CEO and found out that he was getting rid of his large share of stocks in the company, although Bacanovic didn’t know why. He passed the information on to Stewart, which made Stewart guilty of acting on a piece on nonpublic information – better known as insider trading. However, as the prosecutor had a difficult time proving that Stewart had actual broken the law when it came to the piece of nonpublic information, as she didn’t explicitly know something nonpublic about the company or that the FDA had denied their approval; she simply knew the CEO had unloaded his shares. Additionally, they couldn’t make a case for Stewart having some kind of duty to not act on the information she had been given, such as being affiliated with ImClone in some way.

They found the catch though. As the FBI and SEC were investigating, Stewart lied to them to conceal the reason why she traded her shares. They were then able to charge her with making false statements, as well as conspiracy and obstruction of justice. Stewart spent five months in a minimum-security prison and two years on supervised release, of which, five months were on home confinement, and she was fined $30,000.

When Little Lies Become Big Problems

Lying to a federal agent is not a crime that is taken lightly in federal law and is likely to result in a felony when the defendant intentionally provides a false statement to any federal agency. However, this law is intended to protect the government’s proceedings from being hindered, prohibiting it from functioning properly. There are a few different circumstances that must be proven in order to be found guilty of this crime though, and an attorney can help to determine if these all occurred or if your rights were violated in any way.

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