tag:blogger.com,1999:blog-1519969502186924526.post831399562060347783..comments2023-10-24T08:00:53.865-05:00Comments on Federal Tax Crimes: The Limits of Literal Truth as Defense to Perjury (or Even 18 USC 1001) (7/24/10)Jack Townsendhttp://www.blogger.com/profile/14469823736335455874noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-1519969502186924526.post-40380490074863639962010-07-28T21:15:35.401-05:002010-07-28T21:15:35.401-05:00Note to readers, I deleted several comments here a...Note to readers, I deleted several comments here and moved them to another blog becuase, due to my error, a trail of comments got started here in the wrong blog topic. The removed items did not relate to the topic in this blog. My apologies.Jack Townsendhttps://www.blogger.com/profile/14469823736335455874noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-54508064893950020362010-07-28T17:08:57.415-05:002010-07-28T17:08:57.415-05:00This comment has been removed by a blog administrator.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-65029749980382710972010-07-28T13:51:07.104-05:002010-07-28T13:51:07.104-05:00This comment has been removed by a blog administrator.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-73586398975526422222010-07-28T13:49:25.611-05:002010-07-28T13:49:25.611-05:00This comment has been removed by a blog administrator.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-9205174507163550832010-07-28T13:12:23.156-05:002010-07-28T13:12:23.156-05:00This comment has been removed by the author.Jack Townsendhttps://www.blogger.com/profile/14469823736335455874noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-13369241563133359392010-07-28T12:14:17.673-05:002010-07-28T12:14:17.673-05:00Summary: The 9th Circuit says that a defendant'...Summary: The 9th Circuit says that a defendant's lies to probation officer during the course of a presentence investigation not a "false statement" prosecutable under 18 U.S.C. Section 1001. <br /><br />In a nutshell: A defendant shouldn't lie to a Probation Officer . . . but is it really a crime to do so? Not in the Ninth, when the lie is about information that must be reported as part of the PSR process and the government charges a "false statement" under 18 USC Section 1001. See United States v. Horvath, 492 F 3d 1075 (9th. Cir. 2007); rehg denied, __ F.3d __, 2008 WL 943951 (9th Cir. April 9, 2008).<br /><br />Players: Judge Graber authors original decision, Rymer dissents. <br /><br />Judge Graber writes denial of rehearing order, joined by Wardlaw, Gould, and Paez.<br /><br />Chief Judge Kozinski, and Judges Bea, O’Scannlain, Kleinfeld, Tallman, Bybee and Callahan dissent from denial of rehearing.<br /> <br />Facts: During a federal PSR interview, Horvath claimed that he had served with distinction in the Marine Corps. United States v. Horvath, 492 F.3d 1075, 1076 (9th Cir. 2007). Partly because of this service, the judge imposed a lenient sentence. Id. <br /><br />In fact, Horvath lied about his Marine service. When this was discovered (after sentencing) he was indicted for making a false statement to a probation officer under 18 USC § 1001. Id. at 1076-77. Horvath moved to dismiss the indictment for failing to state an offense; when that was denied, he entered a conditional plea. Id. at 1077. <br /><br />In July of ‘07, Judges Graber and Pregerson reversed, in the holding recounted below. Id. at 1076. A Ninth Circuit judge sought rehearing en banc.<br /><br />Issue(s): “We must decide whether the exception in § 1001(b) for ‘statements . . . submitted by [a] party . . . to a judge’ encompasses a false statement submitted to the judge in a presentence report (“PSR”), when the defendant in a criminal proceeding made the false statement to the probation officer during the defendant’s presentence interview, rather than to the judge directly.” Id. at 1076 (emphasis added). <br /><br />Held: “We hold that when, but only when, the probation officer is required by law to include such a statement in the PSR and to submit the PSR to the judge, the statement falls within the exception in § 1001(b).” Id. <br /><br />Sources: http://harlanaccess.appspot.com/circuit9.blogspot.com/search/label/18%20USC%201001<br /><br />http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdjd&searchTerm=eQfD.CXDa.UYGY.EcQI&searchFlag=y&l1loc=FCLOWAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-29199035276257909852010-07-28T11:53:04.660-05:002010-07-28T11:53:04.660-05:00Jack,
I just found something on this topic in Wik...Jack,<br /><br />I just found something on this topic in Wikepedia.<br /><br />"Even constitutionally explicit Fifth Amendment privileges do not exonerate affirmative false statements. United States v. Wong, 431 U.S.C. 174, 178, 52 L. Ed. 2d 231, 97 S. Ct. 1823 (1977). As the Court in Wong said, "Our legal system provides methods for challenging the Government's right to ask questions -- lying is not one of them." Id., at 180, quoting Bryson v. United States, 396 U.S. 64, 72, 24 L. Ed. 2d 264, 90 S. Ct. 355 (1969)."<br /><br />"However, some federal courts have said that § 1001 does not to apply to in-court statements. Courts have largely relied on the fact that perjury statutes cover in-court statements, and have stated that the conventions of courtroom advocacy might create many ambiguous, borderline cases in which application of § 1001 could harm other important interests, such as rights of the criminal defendant. United States v. North, 708 F. Supp. 380."<br /><br />Source: http://en.wikipedia.org/wiki/Making_false_statementsAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-42097355626709822912010-07-28T07:22:01.855-05:002010-07-28T07:22:01.855-05:00Anonymous,
Your comments are again excellent. I ...Anonymous,<br /><br />Your comments are again excellent. I am going to post the link to the article as an addedendum to my blog so that readers can simply click and go there.<br /><br />Thanks again,<br /><br />Jack TownsendJack Townsendhttps://www.blogger.com/profile/14469823736335455874noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-7771572886674499082010-07-27T21:25:30.008-05:002010-07-27T21:25:30.008-05:00Jack,
I could not agree with you more that "...Jack,<br /><br />I could not agree with you more that "this is an area fraught with danger for the practitioner. It is not just the formal Q&A that gives rise to the danger, but can happen in the context of any IRS request for information." <br /><br />To say that communications with any federal, state or local government officials (putting aside a federal grand jury) amounts to opportunities to get caught in legal traps would be putting it very mildly.<br /><br />Anyone (including especially any white collar defense attorney) who is inclined to communicate with a government official or grand jury should review the following online articles:<br /><br />1. "How to Avoid Going to Jail under 18 U.S.C. Section 1001 for Lying to Government Agents" authored by Attorney Sol Wisenberg (Link: http://library.findlaw.com/2004/May/11/147945.<br />html). <br /><br />Here is an important excerpt from the foregoing article:<br /><br />Did you know that it is a crime to tell a lie to the federal government? Even if your lie is oral and not under oath? Even if you have received no warnings of any kind? Even if you are not trying to cheat the government out of money? Even if the government is not actually misled by your falsehood? Well it is.<br /><br />Title 18, United States Code, Section 1001 makes it a crime to: 1) knowingly and willfully; 2) make any materially false, fictitious or fraudulent statement or representation; 3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. Your lie does not even have to be made directly to an employee of the national government as long as it is "within the jurisdiction" of the ever expanding federal bureaucracy. Though the falsehood must be "material" this requirement is met if the statement has the "natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed." United States v. Gaudin , 515 U.S. 506, 510 (1995). (In other words, it is not necessary to show that your particular lie ever really influenced anyone.) Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is "within the jurisdiction" of a government agency. United States v. Yermian , 468 U.S. 63, 69 (1984). For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable.<br /><br />Even in our age of ever expanding federal power, the breadth of this statute (and the discretion it lodges in prosecutors) is awesome. Congress has regulated so many areas of our lives and federalized so many functions that the reach of Section 1001 is virtually boundless. This is what caused many federal courts to create an "exculpatory no" doctrine, holding that falsely answering "no" to an inquiry from a federal agent was, standing alone, not a crime under Section 1001. In 1998, however, the United States Supreme Court rejected this doctrine (as being inconsistent with legislative intent) in Brogan v. United States , 522 U.S. 398, 805 (1998). Thus, the only avenue for reform with respect to Section 1001 is in Congress, where politicians seldom get brownie points for narrowing the reach of federal criminal statutes.<br /><br />Id. <br /><br />2. "GUARD YOUR WORDS TO AVOID FALSE STATEMENT CHARGES" (author unknown) (Link: http://www.fa-ir.org/ai/false_statement.htm)<br /><br />BOTTOM LINE: Caution must abound in any and all communications with federal, state and local officials (or anyone acting on behalf of such officials). By way of instance, an accurate, correct, complete and contemporaneous record (preferably audio visual as well as textual) of such communications should be made and permanently preserved.Anonymousnoreply@blogger.com