24.10 False Statement to Government Agency (18 U.S.C. § 1001)

           The defendant is charged in [Count _______ of] the indictment with knowingly and willfully [making a false statement] [using a document containing a false statement] in a matter within the jurisdiction of a governmental agency or department in violation of Section 1001 of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant [made a false statement] [used a writing that contained a false statement]; 

            Second, the [statement][writing] was made in a matter within the jurisdiction of the [specify government agency or department]; 

            Third, the defendant acted willfully; that is, the defendant acted deliberately and with knowledge both that the statement was untrue and that his or her conduct was unlawful; and 

            Fourth, the [statement] [writing] was material to the decisions or activities of the [specify government agency or department]; that is, it had a natural tendency to influence, or was capable of influencing, the agency’s decisions or activities. 

Comment 

           The Ninth Circuit has held the common law test for materiality, as reflected in the last sentence of this instruction, is the standard to use when false statement statutes such as 18 U.S.C. §1001 are charged.  United States v. Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008) (citing United States v. Gaudin, 515 U.S. 506, 509 (1995)); see also United States v. Kirst, 54 F.4th 610, 624 (9th Cir. 2022) (affirming jury instruction regarding materiality element on grounds that it accorded with Model Criminal Jury Instruction 24.10 and Peterson). “The false statement need not have actually influenced the agency . . .  and the agency need not rely on the information in fact for it to be material.”  United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998) (citations omitted); see also United States v. King, 735 F.3d 1098, 1108 (9th Cir. 2013).  

            No mental state is required with respect to the fact that a matter is within the jurisdiction of a federal agency, and the false statement need not be made directly to the government agency.  United States v. Green, 745 F.2d 1205, 1208-10 (9th Cir. 1984).  There is no requirement that the defendant acted with the intention of influencing the government agency.  United States v. Yermian, 468 U.S. 63, 73 & n.13 (1984).  The initial determination whether the matter is one within the jurisdiction of a department or agency of the United States—apart from the issue of materiality—should be made by the court as a matter of law.  United States v. F.J. Vollmer & Co., 1 F.3d 1511, 1518 (7th Cir. 1993).  

            To make a false statement “willfully” under Section 1001, the defendant must have both the specific intent to make a false statement and the knowledge that his or her conduct was unlawful.  Specific intent does not require evil intent but only that the defendant act deliberately and knowingly.  See United States v. Heuer, 4 F.3d 723, 732 (9th Cir. 1993).  The requirement that the defendant knew that his or her conduct was unlawful is based on Bryan v. United States,wherein the Supreme Court stated that “in order to establish a willful violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.”  524 U.S. 184, 191-92 (1998) (quoting Ratzlaf v. United States, 510 U.S. 135, 139 (1994)).  Later, the Solicitor General conceded that a district court erred by giving an instruction on “willfulness” that does not comply with Bryan.  Ajoku v. United States, 572 U.S. 1056 (2014).   

In determining whether the government has carried its burden to prove a defendant’s knowledge of unlawfulness, the jurors may rely on their common sense and life experiences in the absence of direct evidence.  See United States v. Charley, 1 F.4th 637, 644 (9th Cir. 2021) (quoting United States v. Ramirez, 714 F.3d 1134, 1138 (9th Cir. 2013)).  

            Materiality must be demonstrated by the government, United States v. Oren, 893 F.2d 1057, 1063 (9th Cir. 1990); United States v. Talkington, 589 F.2d 415, 416 (9th Cir. 1978), and must be submitted to the jury.  Gaudin, 515 U.S. at 506.  Actual reliance is not required. Talkington, 589 F.2d at 417 (citation omitted).  The materiality test applies to each allegedly false statement submitted to the jury.  Id.  

            Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to which statement was false and material”).  See Instruction 6.27 (Specific Issue Unanimity).

            For purposes of determining proper venue, the location where the statement is uttered is the location of the crime. United States v. Fortenberry, 89 F.4th 702, 712 (9th Cir. 2023) (“Section 1001 offense is complete at the time the false statement is uttered, and because no actual effect on federal authorities is necessary to sustain a conviction, the location of the crime must be understood to be the place where the defendant makes the statement.”).

Revised March 2024