can be prosecuted under § 1001 or § 287, among other statutes.
because the statutes’ language demonstrates that Congress intended to create two
distinct violations, prosecuting a defendant for a single act under both § 1001 and §
287 does not violate the Double Jeopardy Clause of the Fifth Amendment.
Although prosecutors may use both statutes to charge the same or similar con-
duct, there are significant differences between the statutes. For example, while
materiality is an element of § 1001,
the circuit courts are split on whether it is an
element of § 287.
In addition, § 1001 requires the prosecutor to prove that the de-
fendant both knowingly and willfully lied to the government;
but, in certain cir-
cuits, § 287 requires only that the defendant acted knowingly.
§ 287’s jurisdictional hook reaches “department[s] or agenc[ies]” of the United
whereas § 1001 applies to statements made “in any matter within the juris-
diction of the executive, legislative, or judicial branch[es] of the Government of
the United States.”
This article describes the contours of the two statutes. Section II of this article
discusses criminal prosecutions brought for false statements under § 1001. Section
III addresses criminal prosecutions brought under § 287.
government must prove beyond a reasonable doubt that the defendant ‘(1) knowingly and willfully, (2) made a
materially false, fictitious, or fraudulent statement, (3) in relation to a matter within the jurisdiction of a
department or agency of the United States, (4) with knowledge that it was false or fictitious or fraudulent.’”
(quoting United States v. Litvak, 808 F.3d 160
, 170 (2d
4. See W. Bruce Shirk, Bennett D. Greenberg, & William S. Dawson III, Truth or Consequences: Expanding
Civil and Criminal Liability for the Defective Pricing of Government Contracts, 37 CATH. U. L. REV. 935, 985–
86 (1988) (suggesting a set of hypothetical facts that could support a conviction under both 18 U.S.C. § 1001 and
18 U.S.C. § 287
); see also
Julie R. O’Sullivan, The Federal Criminal ‘Code’ Is a Disgrace: Obstruction Statutes
as Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643, 653–55 (2006) (stating that because of redundancy in the
federal criminal code, including redundancies in sections pertaining to false statements, prosecutors “have the
ability to pick and choose among a smorgasbord of statutes that might apply to given criminal conduct”).
5. See, e.g.
, Brandon v. Anesthesia
& Pain Mgmt. Assocs., Ltd., 277 F.3d 936
, 941 (7th
United States v. Allen, 13 F.3d 105
, 109 (4th Cir. 1993) (holding that punishing a single act via
convictions under both statutes does not violate the Double Jeopardy Clause); see also U.S. CONST. amend. V
(“No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.”).
7. See 18 U.S.C. § 1001(a)
(1)–(3); see also H.R. REP. NO. 104-680, at 8 (1996), as reprinted in 1996 U.S.C.C.
A.N. 3935, 3942 (containing statement in § 1001’s legislative history that the “express requirement that all three
offenses [in § 1001] have materiality as an element resolves a conflict among circuits as to whether materiality is
an element of all three offenses”).
United States v. Newell, 658 F.3d 1
, 16–17 (1st
Cir. 2011) (declining to decide
whether the First Circuit
requires “materiality” under § 287 and noting that though the Fourth and Eighth Circuits have “read materiality
into” § 287, the Fifth, Ninth, Tenth, and Second Circuits have declined to do so and the Third Circuit has ruled
that materiality sometimes is an element under § 287); see also U.S. DEP’T OF JUST., CRIM. RES. MANUAL § 922,
https://www.justice.gov/archives/jm/criminal-resource-manual-922-elements-18-usc-287 (last visited Feb. 10,
2021) [hereinafter CRIMINAL RESOURCE MANUAL] (discussing circuit split).
10. See infra Section III.A.3 (discussing intent); see also CRIMINAL RESOURCE MANUAL, supra note 8, § 922
(discussing division of circuits on the issue of whether willfulness is an essential element of § 287).
12. Id. § 1001(a).
896 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:895