The Special Parameters of The Next York Times
This website is the public culmination of a successful effort to stop fraud in a network. That was done through using internet communication tactically and provocatively through a network while referencing and abiding by arcane federal laws, over a long period.
The effort had to withstand network concealment and intentional withholding of information in order to antagonize, and the way we now use the subjective issue of mental health to try to silence people on the internet. The editor was being chased and obstructed through healthcare and further threat until this year.
The Next York Times is the only in-house effort we know of to successfully stop retaliation against a fraud target for speaking publicly about the fraud. It accomplished that through destroying a formal gaslighting scheme, that had been pushed into the federal jurisdiction by the perpetrators. Corrupt attorneys and doctors, apparently incapable of behavioral self-reflection, were involved every step of the way.
Now empowered, the goal is to take others from total disempowerment to empowerment.
We reached the goal on a highly constrained budget, and it took every last cent to debut The Next York Times on Substack on December 16, 2022.
The editor is a legally disabled American and says that status was arrived at through coercion. That means the editor was forced into the federal jurisdiction through business entities and its other owners, making for a difficult but possibility-rich situation. Unlike the rest of the internet, lying could carry real penalty. This is what directly informed the creation of The Next York Times, a different kind of internet publication.
Due to being in that jurisdiction, during the emancipation process, if the editor were to say anything that could be shown as trying to deceive the federal government, special federal laws are available to prosecute the editor. Emancipation has taken years, and its necessary public face became a LinkedIn acknowledgement of the situation and The Next York Times on Twitter in February 2022.
This means that the editor has been held to an incredibly high standard in public internet speech, due to real potential consequences! That permeates every post of The Next York Times, and is in stark contrast to how most use Internet communication. However, The Next York Times has to discuss issues that elicit automatic retaliation on social media.
In October 2021, after a marked federal SUV parked behind the author’s house multiple times, the editor put up a website containing this statement, declaring the parameters for all involved in the situation:
Malingering By Proxy and Section 1001
(og. October 2021, edited)
Without having any dialog with any persons known to be investigators, it’s been affirmed that an investigation has been underway that will necessarily include evaluating whether criminal behavior that can be generally characterized as Malingering By Proxy (Malingering Imposed On Another) has been or is present, encompassing crimes performed within the federal jurisdiction; action against falsification, concealment and retaliation attempts of 2019-2021—in response to the exposure of the behavior—could be taken through the use of 18 U.S. Code § 1001 (Section 1001).
Once a party conceives of a plan to force a target to declare themselves “mentally ill” and disabled to the federal government with a tactical financial motive, they begin to impose malingering on another, and perform the action in the federal jurisdiction through abusing the services of the independent agency of the Social Security Administration. With the coercion plan, the imposing malingerers make Section 1001 a material matter not only for themselves and their target, but potentially for all those they are in material contact with due to the statute’s organization. Section 1001 prosecutions can be independent of any precipitating allegations, as the prosecutions sought under it address deceiving a federal department or agency.
This unique distinction is critical within the jurisdiction where a group of people were led by perpetrators, some involuntarily in the same manner as the target, and some in material support of the criminal behavior. Silence serves to frustrate the discernment needed by targets to distinguish between the groups—which the target must do— meaning that in their search for security they must rely on inference, extrapolation, and historical data— as in all matters of security. This matter is primarily a security issue. Facing the same challenge, the U.S. government conceived of 18 U.S. Code § 1001 as a tool. Each act of deception can be its own count. Due to the volume required, a target of imposed malingering within the federal jurisdiction will likely be unable to enumerate just the falsities they have heard directly from myriad sources about their situation. Regardless, they are not the bookkeepers under Section 1001.
It’s not unreasonable to call the last two years a futile battle over jurisdiction—with some essentially attempting to argue that the healthcare domain presides over the federal jurisdiction—that has always had a foregone conclusion. It’s also not unreasonable to characterize that period as an opportunity for historical predators and their enablers to continue their behavior while having even greater provable knowledge, and then to later make conflicting statements or to counterproductively “clam up.” If the behavior won’t stop, this is a potentially effective way for the sense of impunity enabling the behavior to be addressed with Section 1001 presiding. Any unrepentant deceivers will now be demonstrating their capabilities for deception within the appropriate jurisdiction, for the appropriate observers, with the appropriate potential penalty.
Medical doctors were directly involved in efforts to impose malingering on the target in this case, and some even attempted to force diagnosis on the target without being in the target’s employ, on record. This may be due to a confusion—willful or not— about jurisdiction. The issues reside in the federal jurisdiction, wherein healthcare providers’ statements and actions are directly material to investigations involving any form of malingering in the federal jurisdiction. Any attempted abuse of a target’s own healthcare and clinical confidentiality protections by perpetrators to conceal their own crimes is of public interest. It’s a sophisticated crime that is difficult to address, and additional regulation is needed. Regardless, the use of Section 1001 is one of the few potential methods of recourse extant, only possible due to the perpetrators’ demand that the target enter the federal jurisdiction against their will.
Astonishingly, clinicians who may be—with or without knowledge—supervising imposed malingering—especially psychiatric physicians—are permitted to disallow payment for their healthcare services using health insurance—even when that insurance is provided by the federal government due to the malingering that was imposed with a financial motivation within the federal jurisdiction. This allows opportunity for the imposing malingerers to financially manage and materially influence the clinical supervision of their crimes at financial or other gain and gives them special rights. Removing this permission would go some way towards preventing this family of crimes, but does not address all of the tactics of imposing malingerers.
Unsolicited clinical contact was recently sought with the target through a domain expert healthcare provider on the same day it was affirmed to the target that federal investigation of this matter was underway in some form. It’s unknown what the purpose of this attempt at clinical contact was, but it was known to be undesired of the target and central to both their allegations and the retaliation to them. Demonstrating domain expertise through a comprehension of its bounds, the healthcare provider advised in writing non-confidentially that their own domain does not preside over the actual jurisdiction.
This is in contrast to the common domain ignorance of healthcare providers—especially psychotherapists—who may provide their own exposed patronage with clinical advice that is in direct contradiction to appropriate legal advice when it is not understood that they are all within the federal jurisdiction. Asking healthcare providers to provide services reserved for attorneys is inadvisable. Common advice incompetent to the situation can easily be given about the target’s “emotional need for validation” and the like—devoid of real legal meaning, bearing no resemblance to the language used in Section 1001—instead of about the target’s need to manage security and warn others at risk due to the lack of immunity provided within the federal jurisdiction. The only validation that a target may be seeking is signs of comprehension that communal danger is present and active.
Exactly what precipitated the affirmation of an investigation on the same day that the domain expert made contact is impossible for the target to know, because multiple factors that could precipitate were in play at the exact same time. An extreme abnormality with medical records belonging to the target occurred in the days before, the abnormality occurring several hours after the target sent a sensitive email specific to its recipients. This triggered a flurry of activity by multiple parties of which not all the specifics are known to the target. What is clear is that if the affirmation was triggered by falsity that one act alone could be worth five years to any falsifiers. Although falsity linked to imposed malingering and/or its concealment is always a real possibility in this matter, that’s not necessarily the case here; the potential penalty for any act of willful deception in the jurisdiction remains.
It’s unlikely that a target’s own statements could be used to help minimize impact on persons who may have incriminated themselves under Section 1001. There has never been a material issue while within the federal jurisdiction that could be addressed through a cash payoff. This fact didn’t prevent an attempt to set one up by a group in 2019 that was refused by the target and interpreted due to its clandestine and oral presentation as being meant to harm the target. The offer was completely contrary to the needs of the target for a standard documented and explanatory resolution—and possibly made with the offerers having specific knowledge of federal law that could be used against the target if accepted. False and retaliatory claims of the target’s intent to extort were also made directly to the target at this time—probably circulated disparately— informing the interpretation of the offer.
The target’s exposure of others’ actions is not motivated by money—or spite or hatred—the only proverbial “axe to grind” is to address the chronic and unaddressed threats to their security, safety, and livelihood while within this jurisdiction. Multiple retaliatory acts meant to conceal, falsify, and deceive while in the federal jurisdiction have been recorded. The motivations for those behaviors are not uniform or entirely known, but a review of the behavior reveals the presence of masked and unexplained hatred for—and real aggression towards—the target.
The issues of coercion, malingering imposed on another, and the resulting obstruction of, falsification regarding, and retaliation to the exposure of those acts remain unresolved at this time. This means the target continues to be in danger, and the jurisdiction remains the same. The target has faced and faces unnecessary, predatory, and dangerous complications to accessing healthcare services, causing real harm. The target requires a new social security number and for other corrective and protective measures to be taken. It had been believed that media efforts would be needed to accomplish those goals. Out of respect to the affirmed investigation, media efforts have been paused for a time. The target is not privy to the details of the investigation and has not knowingly been in direct dialog.
What are the ramifications of Section 1001 for targets who are forced to enter the federal jurisdiction against their will? The perpetrators may have put them at risk of involuntary and/or accidental self-incrimination for the rest of their lives. This extends in some form to any party with material knowledge on the matter. Corporations exist that are directly material to this matter and are themselves prosecutable under Section 1001. Corporate whistleblowers are sometimes the solitary agent pursuing exposure of unlawful acts in the face of retaliation and are afforded protections against it. Retaliators must perform their retaliatory acts with great care while within the federal jurisdiction.
Whether misapprehension has existed about the potential harm of such predatory efforts being isolated to the target is immaterial. If any communal ire meant for the actions of the perpetrators has been projected unto their target instead, that error in judgement can serve to magnify and spread impact as social contagion. This is one of the communal dangers associated with the imposition of malingering on another within the federal jurisdiction. What emerges is a clear picture of the network-corrupting effects of concealment and falsification while within the federal jurisdiction, even if it’s not completely understood or is being willfully ignored.
What follows are excerpts from the DOJ archives regarding Section 1001. Information regarding Section 1001 is the most relevant and impactful information to concerned parties based on the jurisdiction of this matter. If any parties remain monomaniacally obsessed with attempting to cloister matters at hand within the healthcare domain in order to abuse it clandestinely—instead of respecting the reality of what constitutes lawful behavior in the federal jurisdiction—they may be at risk of prosecution without testimony or input being needed or sought from the target. This has been the case for the last seven years and is the jurisdictional byproduct of the criminal behavior of the imposing perpetrators.
(Everything under here is best skipped by the casual reader unless they’re interested in the full text of a federal law.)
18 U.S.C. § 1001
Excerpted from CRM 901-999, U.S. DOJ archives
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 —
falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
makes any materially false, fictitious, or fraudulent statement or representation; or
makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.
Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only in —
administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.
904. PURPOSE OF STATUTE
The purpose of 18 U.S.C. § 1001 is to prohibit deceptive practices aimed at frustrating or impeding the legitimate functions of government departments or agencies. See United States v. Tobon-Builes, 706 F.2d 1092, 1101 (11th Cir. 1983); Bryson v. United States, 396 U.S. 64 (1969) (statute prohibits the "perversion which might result from the deceptive practices described"). The statute is viewed as seeking to protect both the operation and the integrity of the government, and "covers all matters confided to the authority of an agency or department." United States v. Rogers, 466 U.S. 475, 479 (1984). The pre-1996 version of section 1001, however, may be limited by case law to the executive branch. In 1995, the Supreme Court reversed long-settled precedent in Hubbard v. United States, 115 S.Ct. 1754 (1995), and held that a court is neither a "department" nor an "agency" under § 1001. Although the Court's opinion left open the possibility that a judicial or legislative entity might still be considered an "agency" under section 1001, several courts have interpreted Hubbard broadly to mean that section 1001 applies only to false statements made to the executive branch. See, e.g., United States v. Dean, 55 F.3d 640 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 1288 (1996); United States v. Rostenkowski, 59 F.3d 1291, 1301 (D.C. Cir. 1995). As of this writing, there is still pending in the District of Columbia Circuit an interlocutory appeal concerning whether the old version of section 1001, even after Hubbard, still applies to financial disclosure statements that Members of Congress filed, pursuant to the Ethics in Government Act, with the Clerk of the House of Representatives before October 11, 1996. See United States v. Oakar, No. 96-3084 (D.C. Cir.). Prosecutors therefore should not concede, in any pleadings or arguments presented in federal courts, that the old section 1001 does not apply to such statements, at least until the Court of Appeals for the District of Columbia Circuit decides this case.
905. ITEMS NOT REQUIRED TO BE PROVED
The courts have concluded that 18 U.S.C. § 1001 does not require any proof of the following:
any financial or property loss to the Federal government (though one often exists), United States v. Richmond, 700 F.2d 1183, 1188 (8th Cir.1983);
that the false statement be made or submitted directly to the federal government, United States v. Uni Oil Co., 646 F.2d 946, 954-55 (5th Cir. 1981), cert. denied, 455 U.S. 908 (1982);
any favorable agency action based upon the statement, Brandow v. United States, 268 F.2d 559 (9th Cir. 1959); United States v. Quirk, 167 F. Supp. 462 (E.D. Pa. 1958), aff'd, 266 F.2d 26 (3d Cir. 1959);
reliance by the government, United States v. Lichenstein, 610 F.2d 1272, 1278 (5th Cir. 1980);
the defendant's actual knowledge of Federal agency jurisdiction, United States v. Yermian, 468 U.S. 63 (1984); on remand, 741 F.2d 267 (1984) ; or
that the false statement be written, signed or sworn, United States v. Beacon Brass Co., 344 U.S. 43, 46 (1952).
906. JURISDICTIONAL REQUIREMENTS SATISFIED
Section 1001's jurisdictional requirements are satisfied if:
the agency had the power to act on the statement, United States v. DiFonzo, 603 F.2d 1260, 1264 (7th Cir. 1979) cert. denied 444 U.S. 1018 (1980);
there was an "intended" relationship between the act and the Federal government, United States v. Stanford, 589 F.2d 285, 297 (7th Cir. 1978) cert. denied 440 U.S. 983 (1979); or
the act was calculated to induce government action, United States v. Barbato, 471 F.2d 918, 922 (1st Cir. 1973).
Courts have frequently held that the phrase "matter within the jurisdiction," as used in Section 1001, means a matter regarding which the department or agency in question has the authority to take action. See Ogden v. United States, 303 F.2d 724, 743 (9th Cir. 1962), cert. denied 376 U.S. 973 (1964); United States v. Ross, 77 F.3d 1525 (7th Cir. 1996)(false statements within the jurisdiction of the Department of Education). In United States v. Gibson, 881 F.2d 318, 322-23 (6th Cir. 1989), the following examples were cited as false statements that could be prosecuted under Section 1001 although indirectly made to the Federal government (so-called indirect submissions):
Courts have . . . affirmed § 1001 convictions for false statements made to private entities receiving federal funds or subject to federal regulation or supervision. See, e.g., United States v. Kirby, 587 F.2d 876, 881 (7th Cir. 1978) (false inspection and weight certificates submitted in transaction subject to regulation by Department of Agriculture); United States v. Dick, 744 F.2d 546, 554 (7th Cir. 1984)(false statements to surety insured by Small Business Administration); United States v. Brack, 747 F.2d 1142, 1150-52 (7th Cir. 1984), cert. denied, 469 U.S. 1216 (1985)(false statements to surety insured by Small Business Administration); United States v. Green, 745 F.2d 1205, 1208-09 (9th Cir. 1984), cert. denied, 474 U.S. 925 (1985)(false statements to private firm constructing nuclear power plant regulated by Nuclear Regulatory Commission); United States v. Wolf, 645 F.2d 23, 25-26 (10th Cir. 1981)(false statements to oil company subject to federal regulation); United States v. Matanky, 482 F.2d 1319, 1322 (9th Cir. 1973), cert. *denied,*414 U.S. 1039 (1973); (false statements to insurance company acting as payment agent for Medicare); United States v. Mouton, 657 F.2d 736, 739 (5th Cir. 1981)(false time sheet submitted to accounting office of community organization receiving CETA funds); United States v. Cartwright, 632 F.2d 1290, 1292-93 (5th Cir. 1980)(false statements to savings and loan association insured by FSLIC).
907. STATEMENTS WARRANTING PROSECUTION
Whether the relationship between the fraudulent statement and the Federal government is sufficient to warrant prosecution, and possible conviction by a jury at trial, will depend on the context of the false statement. Not all false statements violate 18 U.S.C. § 1001. False statements warranting prosecution may be made in at least three ways:
directly to a Federal agency, such as an application form for employment or a required form;
to a private person or institution which implements federal programs; and
in business records that may be subject to Federal government inspection.
These various acts have one common feature: they may affect either the operation or integrity of the government. All that is necessary for jurisdiction is that the false statement touch on a Federal interest, i.e., it affect or influence that interest. The only limitation on this rule is that the Federal interest must exist at the time the false statement is made; it cannot arise after the defendant has made a false statement. Once Federal jurisdiction has been determined issues of materiality, knowledge, and falsity arise.
908. ELEMENTS OF 18 U.S.C. § 1001
Section 1001's statutory terms are violated if someone:
"falsifies, conceals or covers up by any trick, scheme or device a material fact,"
"makes any false, fictitious or fraudulent statements or representations,"
"makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry"
and, for cases arising after the 1996 amendments, the item at issue was material.
Whether the above acts are criminal depends on whether there is an affirmative response to each of the following questions:
Was the act or statement material?
Was the act within the jurisdiction of a department or agency of the United States? and
Was the act done knowingly and willfully?
909. FALSE STATEMENT
For a violation of 18 U.S.C. § 1001, a false statement may be written or oral, sworn or unsworn, voluntarily made in regard to information sought as or required by law, signed or unsigned. See generally United States v. Beacon Brass Co., 344 U.S. 43, 46 (1952); United States v. Poindexter, 951 F.2d 369, 387-88 (D.C. Cir. 1991) cert. denied, 506 U.S. 1021 (1992), cert. denied, 406 U.S. 1021 (1992); United States v. Massey, 550 F.2d 300, 305 (5th Cir. 1977); on remand, 437 F. Supp. 843 (1977); United States v. Isaacs, 493 F.2d 1124, 1156-57 (7th Cir. 1974), cert. denied, 417 U.S. 976 (1974).
910. KNOWINGLY AND WILLFULLY
The prohibition of 18 U.S.C. § 1001 requires that the false statement, concealment or cover up be "knowingly and willfully" done, which means that "The statement must have been made with an intent to deceive, a design to induce belief in the falsity or to mislead, but § 1001 does not require an intent to defraud -- that is, the intent to deprive someone of something by means of deceit." United States v. Lichenstein, 610 F.2d 1272, 1276-77 (5th Cir.), cert. denied, 447 U.S. 907 (1980). The government may prove that a false statement was made "knowingly and willfully" by offering evidence that defendants acted deliberately and with knowledge that the representation was false. See United States v. Hopkins, 916 F.2d 207, 214 (5th Cir. 1990). The jury may conclude from a plan of elaborate lies and half-truths that defendants deliberately conveyed information they knew to be false to the government. Id. at 214-15.
As used in the statute, the term "knowingly" requires only that the defendant acted with knowledge of the falsity. See United States v. Lange, 528 F.2d 1280, 1287-89 (5th Cir. 1976). As in other situations, to commit an act "knowingly" is to do so with knowledge or awareness of the facts or situation, and not because of mistake, accident or some other innocent reason. See Fifth Circuit Pattern Jury Instructions, § 1.35 (1990). Knowledge of the criminal statute governing the conduct is not required.
The false statement need not be made with an intent to defraud if there is an intent to mislead or to induce belief in its falsity. Reckless disregard of whether a statement is true, or a conscious effort to avoid learning the truth, can be construed as acting "knowingly." United States v. Evans, 559 F.2d 244, 246 (5th Cir. 1977), cert. denied, 434 U.S. 1015 (1978).
A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant's knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth. See United States v. West, 666 F.2d 16, 19 (2d Cir. 1981); Lange, 528 F.2d at 1288; United States v. Clearfield, 358 F. Supp. 564, 574 (E.D. Pa. 1973). Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government. SeeUnited States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979).
The term "willfully" means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent. McClanahan v. United States, 230 F.2d 919, 924 (5th Cir. 1955), cert. denied, 352 U.S. 824 (1956); McBride v. United States, 225 F.2d 249, 255 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956). An act is done "willfully" if done voluntarily and intentionally and with the specific intent to do something the law forbids. There is no requirement that the government show evil intent on the part of a defendant in order to prove that the act was done "willfully." See generally United States v. Gregg, 612 F.2d 43, 50-51 (2d Cir. 1979); American Surety Company v. Sullivan, 7 F.2d 605, 606 (2d Cir. 1925)(Hand, J.); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970),cert. denied, 401 U.S. 955 (1971) (involving 15 U.S.C. § 32(a). See also 1 E. Devitt, C. Blackmar, M. Wolff & K. O'Malley, Federal Jury Practice and Instructions, § 17.05 (1992).
Amended section 1001 (1996) expressly includes materiality as an element under each of the three clauses in subsection (a). This resolves a conflict among the courts on that issue. See, e.g., United States v. Corsino, 812 F.2d 26 (1st Cir. 1987); United States v. Elkin, 731 F.2d 1005 (2d Cir. 1984).
After United States v. Gaudin, 115 S.Ct. 2310 (1995), materiality is an issue to be determined by the jury. Gaudin, held that it was error for a trial court to refuse to submit the question of materiality to the jury in a prosecution under the first prong of 18 U.S.C. § 1001, overturning lower court cases holding that materiality was a legal question for the court. The Supreme Court held that if materiality is an element of the offense, that element must be submitted to the jury, and the jury must find materiality beyond a reasonable doubt to convict. Gaudin is probably not limited to 18 U.S.C. § 1001, but may apply to any other offenses in which the materiality of a false statement is an element of the offense, such as 18 U.S.C. §§ 1005, 1006, 1014 (false statements to various financial institutions); 1542 (false statement to obtain passport); 1621 and 1623 (perjury); and 26 U.S.C. § 7206 (false statements on a tax return). This list is illustrative, not exhaustive. See United States v. Gaudin, 28 F.3d 943, 955 (9th Cir. 1994) (Kozinski, J., dissenting)(collecting statutes possibly affected by the new ruling), aff'd, 115 S.Ct. 2310 (1995).
Although in Gaudin the Court did not explicitly hold that materiality was an element of each branch of 18 U.S.C. § 1001, the majority view is that the element of materiality pervades the entire statute. See generally United States v. Adler, 633 F.2d 1287, 1291 (8th Cir. 1980)(the majority view is that the element of materiality pervades the entire statute). Nor did the Gaudin court define "materiality," under 18 U.S.C. § 1001, noting that the parties had agreed to a definition. In Gaudin the parties agreed to the definition from Kungys v. United States, 485 U.S. 759, 770 (1988), a denaturalization case under 8 U.S.C. § 1451 in which the Supreme Court noted that the Federal courts have long displayed a quite uniform understanding of the materiality concept embodied in statutes criminalizing false statements to public officials, including 18 U.S.C. § 1001. Specifically, the Court stated that "[t]he most common formulation of that understanding is that a concealment or misrepresentation is material if it has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed." 485 U.S. at 770 (citations and internal quotation marks omitted).
To establish materiality as an element, it is sufficient that the statement have the capacity or a natural tendency to influence the determination required to be made. See Id.; United States v. Lueben, 838 F.2d 751, 754 (5th Cir. 1988); United States v. Allen, 892 F.2d 66, 67 (10th Cir. 1989). One often cited test for materiality appears in United States v. Weinstock, 231 F.2d 699, 701 (D.C. Cir. 1956):
"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.
For example, a passport applicant's false statements as to name, identity, and citizenship were material to the State Department's decision as to whether to grant a passport. United States v. Ramos, 725 F.2d 1322 (11th Cir. 1984).
Thus, the test for materiality under 18 U.S.C. § 1001 is not whether the false statement actually influenced a government function, but whether it had the capacity to influence. Lueben, 838 F.2d at 754; United States v. Lichenstein, 610 F.2d 1272, 1278 (5th Cir. 1980). Weinstock held that "the issue to which the false statement is material need not be the main issue; it may be a collateral issue. And it need not bear directly upon the issue but may merely augment or diminish the evidence upon some point. But it must have some weight in the process of reaching a decision." 231 F.2d at 703.
Materiality is best shown by the testimony of a witness, generally those who make the decisions on the application or statements in the particular case, concerning the influence that defendant's allegedly false statement might have had on the ultimate result of the transaction. Such a witness may be an expert witness or a fact witness, or both.
Section 1001 of Title 18, United States Code, requires that the statement or representation actually be false, and the government has the burden of establishing the alleged falsity of the statement. Webster's 3d International Dictionary defines the adjective "false" as "not corresponding to truth or reality." Although a statement may be misleading, unauthorized, or even fraudulent, a conviction under this section generally cannot be sustained unless the statement also is false. See United States v. Diogo, 320 F.2d 898, 905-09 (2d Cir. 1963)(literally true that defendant married). The statute also covers half-truths where there is a duty to speak the truth--as in a sworn deposition before an agency. See generallyUnited States v. Lutwak, 195 F.2d 748 (7th Cir. 1948), aff'd, 344 U.S. 604 (1953); United States v. DeRosa, 783 F.2d 1401, 1407 (9th Cir. 1986), cert. denied, 477 U.S. 908 (1986).
The question whether a literally true statement can also be a false representation is an open one. While the Diogo court held that a literally true statement cannot be said to be a false representation, a contrary holding was reached in United States v. Rodgers, 624 F.2d 1303, 1310-11 (5th Cir. 1980), cert. denied, 450 U.S. 917 (1981). This problem often can be avoided by casting the indictment in terms of a "concealment of a material fact" rather than the making of a false statement or representation. Diogo, 320 F.2d 902.
A false or fictitious statement or representation is an assertion that is untrue when made or when used, and that is known by the person making it to be untrue. United States v. Worthington, 822 F.2d 315, 319 (2d Cir.), cert. denied, 484 U.S. 944 (1987). A fraudulent statement or representation is an assertion that is known to be untrue and that is made or used with the intent to deceive. Id.; 2 E. Devitt, C. Blackmar & K. O'Malley, Federal Jury Practice and Instructions, § 37.08 (1990). The government need prove only that the statements were false "under a reasonable interpretation." United States v. Adler, 623 F.2d 1287, 1289 (8th Cir. 1980).
But if a defendant's statement (or the government's question or form requiring an answer) is ambiguous, it is incumbent upon the government to negate any reasonable interpretation that could make the defendant's statement factually correct. See United States v. Anderson, 579 F.2d 455 (8th Cir.), cert. denied, 439 U.S. 980 (1978); United States v. Race, 632 F.2d 1114 (4th Cir. 1980); United States v. Migliaccio, 34 F.3d 1517 (10th Cir. 1994)(involving § 1341). Thus, the defendant may wish to offer evidence, including expert testimony, that a government form or document was vague and ambiguous. United States v. Barsanti, 943 F.2d 428, 432-33 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992); United States v. Hauck, 980 F.2d 611, 614 (10th Cir. 1992). In United States v. Manapat, 928 F.2d 1097 (11th Cir. 1991), the court found the airman's medical certificate (which included two of 23 questions about "convictions" on a form regarding medical history) was fundamentally vague. Finally, even if a question is arguably ambiguous, "the defendant's understanding of the question is a matter for the jury to decide." United States v. Bell, 623 F.2d 1132, 1136 (5th Cir. 1980).
913. DEPARTMENT OR AGENCY
For cases before the 1996 amendments, in Hubbard v. United States, 115 S.Ct. 1754 (1995), the United States Supreme Court concluded that a court is neither a "department" nor an "agency" under § 1001. The court thereby overruled United States v. Bramblett, 348 U.S. 503 (1955), a case broadly construing 18 U.S.C. § 1001 in holding that the word "department" in Section 1001 was meant to extend the statute's reach to all three branches of government. Section 6 of Title 18, United States Code, defines the words department and agency.
Although the Hubbard opinion left open the possibility that a judicial or legislative entity might still be considered an "agency" under section 1001, several courts have interpreted Hubbard broadly to mean that section 1001 applies only to false statements made to the executive branch. See, e.g., United States v. Dean, 55 F.3d 640 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 1288 (1996); United States v. Rostenkowski, 59 F.3d 1291, 1301 (D.C. Cir. 1995). As of this writing, there is still pending in the District of Columbia Circuit an interlocutory appeal concerning whether the old version of section 1001, even after Hubbard, still applies to financial disclosure statements that Members of Congress filed, pursuant to the Ethics in Government Act, with the Clerk of the House of Representatives before October 11, 1996. See United States v. Oakar, No. 96-3084 (D.C. Cir.). Prosecutors therefore should not concede, in any pleadings or arguments presented in federal courts, that the old section 1001 does not apply to such statements, at least until the Court of Appeals for the District of Columbia Circuit decides this case.
The 1996 statute effectively overrules Hubbard, and expressly provides that section 1001 covers false statements that are made to all three branches of the federal government, without regard to whether the entity may be categorized as a "department" or "agency."
Under both the pre-1996 and post-1996 statutes, the government is not required to prove that the defendant had actual knowledge that the false statement in question was within the jurisdiction of a Federal department or agency. See United States v. Yermian, 468 U.S. 63, 68 (1984); on remand, 741 F.2d 267 (1984). Nor must the government prove that the defendant had the specific intent to deceive the Federal government. Yermian, 468 U.S. at 73. After United States v. Gaudin, 115 S.Ct.2310 (1995), the element of agency jurisdiction is probably a jury issue. But cf. United States v. Rodgers, 466 U.S. 475, 479 (1984); United States v. Diaz, 690 F.2d 1352 (11th Cir. 1982); United States v. Goldstein, 695 F.2d 1228 (10th Cir. 1981), cert. denied, 462 U.S. 1132 (1983). The requirement that the statement must be "within the jurisdiction" of a federal agency is to be interpreted broadly. Rodgers; United States v. Notarantonio, 758 F.2d 777, 787 (1st Cir. 1985). For liability under Section 1001 to attach, it is necessary only that the "false statements . . . result in the perversion of the authorized functions of a federal department or agency." United States v. Gilliland, 312 U.S. 86, 93 (1941); Notarantonio, 758 F.2d at 787.
In United States v. Candella, 487 F.2d 1223 (2d Cir. 1973) cert. denied, 415 U.S. 977 (1974), for example, false affidavits submitted by movers were executed on forms prepared by the City of New York and not by the Department of Housing and Urban Development; but the false affidavits were within the purview of 18 U.S.C. § 1001, because the city had entered into a contract with the United States prompting the move, the government was ultimately responsible for paying the moving expenses, and the movers were aware of the relationship between the government and the city.
Candella makes clear that Section 1001 "does not require that the false statement must actually have been submitted to a department or agency of the United States, but rather that it was contemplated that the statement was to be utilized in a matter which was within the jurisdiction of such department or agency." Id. at 1227. In Candella, one of the purposes of the records was to provide an "audit trail" for Federal program auditors. See also United States v. Kraude, 467 F.2d 37 (9th Cir. 1972), *cert. denied,*409 U.S. 1076 (1972); United States v. Waters, 457 F.2d 805 (3d Cir. 1972). In United States v. Munoz, 392 F. Supp. 183 (E.D. Mich. 1974), aff'd, 529 F.2d 526 (6th Cir. 1975), the Department of Labor had authority to regulate the use of funds distributed through a national organization that was a contractor to the Department of Labor, to a state-chartered non-profit organization that was a subcontractor to the national organization. Any false statement submitted to the state-chartered organization under such circumstances was held to be a matter within the "jurisdiction of an agency or department of the United States." Munoz reaffirms not only the proposition that the fraud need not be perpetrated directly on or to the governmental agency involved but also that the term "jurisdiction" in Section 1001 should not be given a narrow or technical meaning. See also Bryson v. United States, 396 U.S. 64 (1969).
914. CONCEALMENT—FAILURE TO DISCLOSE
Although 18 U.S.C. § 1001 is often referred to as a false statement statute, its scope extends beyond statements. The statute proscribes the acts of making false statements, falsifying, concealing or covering up. The statute also covers half-truths if there is a duty to speak the truth. See generally United States v. Lutwak, 195 F.2d 748 (7th Cir. 1948), aff'd, 344 U.S. 604 (1953).
Concealment and cover-up are essentially identical concepts and often result from falsification. These acts need not have any relation to a statement or representation. A concealment may involve a failure to disclose or partial disclosures of information required on an application form; however, when using such a theory, the government must prove that the defendant had a duty to disclose the facts in question at the time of the alleged concealment of them. United States v. Irwin, 654 F.2d 671, 678-79 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982). Concealment may also involve a merely physical act of concealment such as transferring inspection stamps, changing numbers on bottles to conceal rejection, conceal use of certain drugs, or using false stamps to conceal ownership of tobacco. Some courts have required that the government be prepared to prove that the "concealment by trick" consisted of affirmative acts. United States v. London, 550 F.2d 206 (5th Cir. 1977).
915. FALSE STATEMENTS AS TO FUTURE ACTIONS
Although the statement that is the subject of an 18 U.S.C. § 1001 violation usually concerns past or present facts, it need not do so. A present statement as to future intent, e.g., a promise to do that which is not actually intended may be a false statement of an existing fact. See United States v. Shah, 44 F.3d 285 (5th Cir. 1995). Under Section 1001 "a promise may amount to a false, fictitious or fraudulent statement if it is made without any present intention of performance and under circumstances such that it plainly, albeit implicitly, represents the present existence of an intent to perform." Id. at 294.
916. FALSE STATEMENTS TO A FEDERAL INVESTIGATOR
The circumstance often arises in which a false statement is made in response to an inquiry by an FBI or other Federal agent, or made voluntarily to an agent. The issue is whether such a statement is within the purview of 18 U.S.C. § 1001.
It is the Department's policy not to charge a § 1001 violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government. See JM 9-42.160 for a discussion of the Department's policy. This policy is to be narrowly construed, however; affirmative, discursive and voluntary statements to Federal criminal investigators would not fall within the policy. Further, certain false responses to questions propounded for administrative purposes (e.g., statements to border or United States Immigration and Naturalization Service agents during routine inquiries) are also prosecutable, as are untruthful "no's" when the defendant initiated contact with the government in order to obtain a benefit.
By its plain terms, § 1001 (as it existed before it was amended in October 1996), broadly reaches "[w]hoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . .makes any false, fictitious or fraudulent statements or representations. . . ."
For example, if the false statement was volunteered to an FBI agent the Supreme Court has held that § 1001 does apply. United States v. Rodgers, 466 U.S. 475 (1984). In Rodgers the court concluded: (1) that criminal investigations fell within the term "in any matter"; and (2) that the FBI qualified as a "department or agency." In Rodgers the language "within the jurisdiction" was held to merely differentiate the official, authorized functions of an agency or department from matters peripheral to the business of that body. From Rodgers it is also clear that the term "jurisdiction," defined as the "right to say and the power to act" (Gonzales v. United States, 286 F.2d 118 (10th Cir. 1960), cert. denied, 365 U.S. 878 (1961)), should not be given a narrow or technical meaning (United States v. Fern, 696 F.2d 1269 (5th Cir. 1983)), and extends to the power to investigate. The statute has also been held to apply if the false response is made to an investigator other than an FBI agent. See United States v. Ratner, 464 F.2d 101 (9th Cir. 1972)(employee of the United States Internal Revenue Service); United States v. Mahler, 363 F.2d 673 (2d Cir. 1966)(employee of the United States Securities and Exchange Commission); Frasier v. United States, 267 F.2d 62 (1st Cir. 1959)(employee of the United States Army); Tzantarmas v. United States, 402 F.2d 163 (9th Cir. 1968), cert. denied, 394 U.S. 966 (1969)(employee of the United States Immigration and Naturalization Service).
Although § 1001 does not provide for exceptions, a number of courts have held that it does not apply to cases involving simple false denials of guilt in response to government initiated inquiries. See, e.g., United States v. Taylor, 907 F.2d 801 (8th Cir. 1990); United States v. Equihua-Juarez, 851 F.2d 1222 (9th Cir. 1988); United States v. Cogdell, 844 F.2d 179 (4th Cir. 1988); United States v. Fitzgibbon, 619 F.2d 874 (10th Cir. 1980); United States v. King, 613 F.2d 670 (7th Cir. 1980); United States v. Chevoor, 526 F.2d 178 (1st Cir. 1975). These courts have concluded, inter alia, that mere denials of guilt do not impair the basic functions of the agency to which the statement is made. But even where it is recognized, the "exculpatory no" doctrine is not applicable in situations in which the statements are more than mere denials of the accusation of criminal activity. United States v. Van Horn, 789 F.2d 1492, 1511 (11th Cir. 1986)("The exception . . . does not apply when a person attempts to affirmatively mislead a government investigation"); United States v. North, 708 F. Supp. 364, 369 (D.D.C. 1988), rev'd in part and vacated in part on other grounds, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C. Cir. 1990).
Other courts have rejected the "exculpatory no" exception to § 1001. See, e.g., United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994)(en banc); United States v. Steele, 933 F.2d 1313 (6th Cir. 1991)(en banc). In addition, a few courts have neither adopted nor rejected the "exculpatory no" doctrine. United States v. Barr, 963 F.2d 641 (3d Cir. 1992); United States v. Cervone, 907 F.2d 332, 342 (2d Cir. 1990); United States v. White, 887 F.2d 267 (D.C. Cir. 1989).
917. CORPORATE CRIMES
It is well settled that a corporation may be convicted for 18 U.S.C. § 1001 violations. See New York Central v. H.R.R. Co., 212 U.S. 481, 492 (1909) aff'd, 212 U.S. 500 (1909); United States v. Gold, 743 F.2d 800, 823 (11th Cir. 1984), cert. denied, 469 U.S. 1217, (1985); United States v. Cincotta, 689 F.2d 238 (1st Cir.), cert. denied, 459 U.S. 991 (1982); United States v. DeMauro, 581 F.2d 50, 54 & n.3 (2d Cir. 1978). Corporations have been convicted of making false statements to the government. See Gold; United States v. Olin Mathieson Chemical Corp., 368 F.2d 525 (2d Cir. 1966); Alamo Fence Co. v. United States, 240 F.2d 179 (5th Cir. 1957).
918. FALSE STATEMENTS AND VENUE
The Congress did not expressly provide special venue provisions in 18 U.S.C. § 1001 cases. United States v. Barsanti, 943 F.2d 428, 434-35 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992). Venue for false statements under § 1001 is proper in the district in which the false statements are made, filed, or ultimately submitted. United States v. Stephenson, 895 F.2d 867 (2d Cir. 1990); United States v. Culuoso, 461 F. Supp. 128 (S.D.N.Y. 1978). Except as otherwise mandated by statute, venue is proper in any district in which the offense was committed. Fed. R. Crim. P. 18. Where the offense is of a continuing nature, venue is proper in any district where the acts constituting the offense were begun, continued or completed, unless otherwise provided by statute. 18 U.S.C. § 3237. Although venue must be alleged in every Federal indictment, it is not an element of the charged offense. United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir. 1988). The government has the burden of proving venue by a preponderance of the evidence. United States v. Lam Kwong-Wah, 924 F.2d 298, 301 (D.C. Cir. 1991), cert. denied, 506 U.S. 901 (1992).
The Supreme Court has cautioned that the venue rules are not to be treated lightly. United States v. Johnson, 323 U.S. 273, 276 (1961). The Sixth Amendment of the United States Constitution has been interpreted to provide a guarantee of trial in the state and district in which the crime was committed. If prosecution is brought in an improper venue, timely objection will result in dismissal of the indictment and prevent further proceedings if the statute of limitations has run.
Several courts have specifically stated that preparation for the commission of the crime is not part of the crime, and therefore, venue is not proper in the district of preparation. These courts view preparation as independent from commission. A different result should be reached when the "preparation" is an integral part of the commission of the crime, and it can fairly be said that by doing the act of preparation the defendant "began" the commission of the crime. Once an offense has been completed, Section 3237 permits the government the option of bringing prosecution in any proper district as far back as the "beginning" of the crime, as defined by the pertinent statute.
In United States v. Travis, 364 U.S. 631 (1961), the Supreme Court was faced with the interplay of two statutes, 18 U.S.C. § 1001 and Section 9(h) of the National Labor Relations Act (NLRA). The latter statute provides that no action will be taken by the National Labor Relations Board (NLRB) until certain affidavits are on file in the District of Columbia. In Travis the issue was whether venue in the place that the affidavits were mailed was proper. The Court seized on the language in Section 9(h) of the NLRA denying any NLRB action "until" the document was on file and the 18 U.S.C. § 1001 requirement that the false statement be made within the jurisdiction of a department or agency. The Court reasoned that NRLA's Section 9(h) did not apply until the affidavit was received by the NLRB, and thus, at the time of mailing, the false statement was not within the jurisdiction of any department or agency. Because of the peculiar interaction of Section 9(h) with 18 U.S.C. § 1001, the Federal government and courts have read Travis restrictively. With the exception of Travis, some cases have held venue to be proper in the place of mailing a false document.
919. MULTIPLICITY, DUPLICITY, SINGLE DOCUMENT POLICY
ISSUE: In situations in which the alleged criminal conduct involves a series of activities, should the indictment allege one count encompassing all of the acts or one count for each act?
The issue has been framed in two judicial concepts: duplicity and multiplicity, terms that are often confused. Duplicity is the joining in a single count of two or more distinct and separate offenses; multiplicity is the charging of a single offense in several counts. See 1 C. Wright, Federal Practice and Procedure, § 142 at 469 (1982); United States v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989)(indictment not duplicitous if it charges conjunctive allegations under a statute that provides for alternative ways of violating the statute). Duplicity is generally not fatal to the indictment (United States v. Droms, 566 F.2d 361, 3633 n.1 (2d Cir. 1977)(duplicity only a pleading rule and would in no event be fatal to count)), but in some cases a duplicitous indictment may obscure the specific charges and violate the defendant's constitutional right to notice of the allegations. United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988), cert. denied, 493 U.S. 1025 (1990).
The issue presented is the proper unit of prosecution. The tests commonly used are: (1) identical proof and (2) legislative intent. The first test simply involves the determination of whether each offense requires proof of an additional fact that the other does not. See United States v. Blockburger, 284 U.S. 299 (1931); United States v. Albrecht, 273 U.S. 1 (1927). The test is designed to guard against the possibility that confusion as to the basis of the verdict may subject the defendant to double jeopardy. The second test is legislative intent. This test often involves the determination of whether the Congress intended to prohibit each individual act or a course of conduct composed of a series of acts. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952); Ebeling v. Morgan, 237 U.S. 625 (1915).
A defendant violates 18 U.S.C. § 1001 each time a false statement is made. If a document contains numerous false statements, the government need only prove one of the statements was false to obtain conviction. Warszower v. United States, 312 U.S. 342 (1941); United States v. UCO Oil Company, 546 F.2d 833, 838 (9th Cir. 1976), cert. denied, 430 U.S. 966 (1977); United States v. Edmondson, 410 F.2d 670, 673 (5th Cir.), cert. denied, 396 U.S. 966 (1969). If the false statements are contained in one document, however, it is preferable to indict only one count for the entire document. This preferred course of action is in response to expressed judicial displeasure on multi-count indictments based on one document. United States v. Fisher, 231 F.2d 99, 103 (9th Cir. 1956). Further, little is to be gained by multi-count charges in such cases, because in most cases the United States Sentencing Guidelines will embrace and punish all relevant conduct. This limitation does not apply to false testimonial statements or perjury before a grand jury but only in those cases in which the false statements are contained in one document. If the same or different false statements appear in more than one document, multiple counts are warranted. Further, separate but similar false applications are punishable as separate offenses.
In Section 1001 cases in which there are multiple false statements in a single document, care should be taken regarding the jury instructions. In such cases the instructions should make clear that the jury's decision must be unanimous regarding which statement, or statements, are false. See United States v. Boutte, 13 F.3d 855 (5th Cir.), cert. denied, 115 S.Ct. 71 (1994); United States v. Holley, 942 F.2d 916, 925-29 (5th Cir. 1991), cert. denied, 114 S.Ct. 77 (1993)(a jury charge of this nature passes muster in perjury cases in which several false statements are charged in a single count).
920. GENERAL VERSUS SPECIFIC STATUTES
Issues arise when after the enactment of a general statute such as 18 U.S.C. § 1001, Congress passes a more specific statute. See 18 U.S.C. § 1010 (false statements to Department of Housing and Urban Development and Federal Housing Administration transactions). In such cases it is necessary to determine the effect of the more specific statute on the scope of the more general. Further, it must be determined whether the prosecutor has unlimited discretion to choose the statute under which he/she will prosecute.
The initial step is to determine whether the Congress has expressed its intent on the relationship of the general and specific statutes. Unfortunately, the Congress rarely expresses its intent with sufficient clarity. But see 15 U.S.C. § 714(m)(false statements to the Department of Agriculture's Commodity Credit Corporation; Section 714 is the exclusive vehicle for such offenses). The argument that a specific statute enacted subsequent to a general statute repeals the latter is often advanced and often rejected; however, at least one United States Court of Appeals has indicated that if the two statutes clearly "conflict," the congressional intent may be determined by looking to the dates of enactment and the statutes' relative specificity. United States v. Roseman, 364 F.2d 18 (9th Cir. 1966), cert. denied, 386 U.S. 918 (1967).
Often the result is that a prosecutor may choose to proceed under either one of the two statutes. This direction is sanctioned:
The U.S. Attorney of the district where a violation of a federal statute occurs is charged with the duty of prosecution and vested with complete control over the proceedings, in the exercise of his discretion. If the facts show a violation of two or more statutes, he may elect under which he will prosecute, in the absence of a prohibitory statute.
Deuitch v. Anderhold, 80 F.2d 677, 678 (5th Cir. 1935). Also "[i]t is settled law . . . that where a single act violates more than one statute, the government may elect to prosecute under either." Ehrlich v. United States, 238 F.2d 481, 485 (5th Cir. 1956); see United States v. Jones, 976 F.2d 176, 183 (4th Cir. 1992), cert. denied, 508 U.S. 914 (1993)("[F]aced with two equally applicable penal statutes, there is nothing wrong with the government's decision [absent an improper purpose] to prosecute under one and not the other"). "[T]he government has the right to sue under any statute under which it can secure a conviction." Morgan v. Unites States, 380 F.2d 686, 703 (9th Cir. 1967), cert. denied, 390 U.S. 962 (1968).