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Is it a crime to be untruthful to federal agents who questioned you?

Answer:

Yes, it is, and in the federal system, you can be charged with the crime of "knowingly and willfully" giving false statements in any matter under federal jurisdiction. This means that federal agents investigating a crime can knock on your door, interview you, not give you Miranda warnings and prosecute you for making an inaccurate or false statement under 18 United States Code 1001. You can be charged with making false statements and no other offense. I have represented people this has happened to as a Jacksonville criminal lawyer.

Many people think that Martha Stewart was convicted and jailed for insider trading or securities fraud. In fact, she wasn't even charged with those things. She was charged with and convicted of obstructing justice and lying to investigators when asked about a well timed sale of stock. Illinois Govenor Rod Blagojevich was also charged and convicted of making false statements to investigators. These prosecutions fit into the category of 'the cover up is easier to prove than the crime', which is often the case where a white collar defendant is not charged with the underlying offense, but instead charged with and convicted of lying about their conduct to investigators.

Some judges and legal commentators have criticized Section 1001 as a 'catch all' and an unfair trap for the unwary. It is not unheard of for prosecutors to charge people with making false statements even where the government lacks sufficient evidence to indict on the underlying offense under investigation. This is especially true where the suspected crimes are complicated and difficult to prove. In 1998, U.S. Supreme Court Justice Ruth Bader Ginsburg went so far as to state that Section 1001 gives prosecutors "extraordinary authority" to "manufacture crimes".

Recently, the U.S. Department of Justice (DOJ) adopted a more defense-friendly position on criminal prosecutions under Section 1001. It is now the DOJ's position that in order to prove a person acted willfully, federal prosecutors must show beyond a reasonable doubt that the defendant knew his or her statements were unlawful - not just that the statements were false. This is a material change in the government's position that could have a significant impact on future white collar investigations and prosecutions under Section 1001.

In Natale v. United States, a surgeon was indicted for Medicare fraud, mail fraud and making false statements for billing Medicare for more expensive procedures than were actually performed. A jury acquitted Dr. Natale of the fraud charges, but convicted him of making false statements. He was sentenced to 10 months of imprisonment and a $40,000. fine. Natale appealed all the way to the U.S. Supreme Court, under the theory that the district court judge did not instruct the jury that the government had to prove that he also knew that making false statements to investigators was unlawful. The Supreme Court did not overturn his conviction but the government, in it's brief to the Supreme Court, specifically stated that for a Section 1001 prosecution, the 'willfully' element requires proof that the defendant made a false statement with the knowledge that his conduct was unlawful.

Lesson Learned:

The government now admits (or takes the position) that it must prove that a defendant not only knew the statement he or she made was false, but also knew that making a false statement was unlawful. What does this mean? To me, it means that if federal agents show up at your door and you make statements that are not true, but you didn't know that making those false statements to the agents was a crime in and of itself, you can't be prosecuted under Section 1001. And really, how many people actually know that being less than truthful when being questioned by an FBI agent who catches you at home, off guard, when you're scared (without the benefit of Miranda warnings or the advice of a lawyer) is a separate crime? Few, if any, I'm sure. Prosecutors may be more reluctant to bring Section 1001 claims, knowing they will have to prove a defendant knew that making the false statement at issue was unlawful. But the best advice is still this: if FBI agents show up at your door to question you, say nothing and call a criminal defense lawyer.

Adriana is confronted by the FBI and forced to make an unpleasant decision.

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