American Criminal Law Review Volume: 49 Issue: 2 Dated: Spring 2012 Pages: 703-738
This article reviews the provisions of Federal laws that make it a crime to knowingly and willfully make a false statement to or a false claim against the U.S. Government or to any department or agency thereof.
Sections 1001 and 287 of Title 18 of the U.S. Code define such crimes and associated penalties and legal defenses. Section 1001 is a broadly written statute that criminalizes the act of making false statements to the U.S. Government. Title 18 also contains several more specific statutes on false statements, including section 1014, which criminalizes false statements to influence loan and credit applications, as well as section 1027, which criminalizes false statements related to Employee Retirement Income Security Act (ERISA) documents. In addition, 31 U.S.C. sections 3729-3733 provide for the civil prosecution of false claims. The three statutes, covered by a single statute from 1863 to 1948, contain similar elements. These similarities often allow prosecutors to choose the statute under which they will prosecute cases of fraud; however, because the statutes' language indicates that Congress intended to create two distinct violations, prosecuting a defendant under both section 287 and section 1001 does not constitute double jeopardy. Although prosecutors may use the statutes interchangeably, some significant differences exist; for example, although materiality is an element of section 1001 offenses, the circuit courts are split on whether materiality is an element of section 287. In addition, section 1001 requires that the prosecutor prove the defendant both knowingly and willfully lied to the Government; however, section 287 only requires that the defendant knowingly lied to the Government. In addition to the two criminal statutes, 31 U.S.C. section 3730(b) allows private citizens to bring a qui tam civil action on behalf of the Government for a violation of section 3729. 250 notes
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