The Perjury Trap

When people learn that it’s not merely lawful, but encouraged, for special agents to lie to people in order to “catch” them or get them to admit to a crime, they are offended. When you add to the mix that it’s a crime for a person to lie to them, they get outraged. How is it possible that this is allowed?

Welcome to criminal law.

Professor Stephen Carter and Ken White (of the Popehat website) have written two columns raising a point that has bothered me for a long time.

That can happen, you know. They write. Someone gets bothered.

The point is this: The police agencies of the federal government can, and do, charge people for lying to them in the course of a criminal investigation, even when the agencies cannot prove the crime they are investigating, and even it turns out that there was no crime at all. The law that permits this is Section 1001 of Title 18, which makes it a crime to:

“knowingly and willfully . . . make[] any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government.

As Carter and White note, Section 1001 allows the federal government to bootstrap itself to conviction of a person who had done nothing wrong, or nothing criminal anyway, until the government talked with him.

This is one, but not the only, reason why you should never talk to special agents, and certainly never do so without competent counsel. But is it not the foolishness of targets or suspects, or even the meaningless “person of interest,” to not just talk, but try to talk their way out of, whatever uncomfortable questions get asked?

The FBI gathers information about a person, finds facts that the person might want to conceal — not because the facts prove a crime but because they are embarrassing for some other reason — then asks about those facts in an interview, on the expectation that the person will lie and thereby incriminate himself.

This strikes me as quite wrong.

When a good criminal defense lawyer preps his client for a meeting with the feds, whether it’s an interview or a proffer, we tell them this. We explain that they will know stuff that we don’t know that they know. We explain that they will believe they know stuff, even if what they know isn’t correct, that we don’t know that they think they know.

We tell them they will bait a perjury trap. We will tell them that before going in, they need to make peace with the idea that they can either tell the truth or not, and if not, may well be prosecuted under §1001, even if they didn’t do whatever is in issue to explain why the feds want to talk to them in the first place.

And we tell them that even if they tell the truth, if their truth doesn’t match the feds’ truth (which often comes from the mouths of rats, who aren’t always the most reliable sources of information), they could still be prosecuted.

The whole process smacks of entrapment. In such cases, the law-enforcement officers are actually hoping to generate a crime. They want people to lie to them; in fact, they are highly trained in the art of getting the interviewee to tell a lie when he didn’t intend to.

Words like “entrapment” obscure the problem. It requires more than opportunity to commit the crime, but lack of propensity. The problem is that people are prone to tell the story in a way that makes them look good, or at least, not too bad. So when they ask the embarrassing question, the humiliating question, the loaded question that you just know is going to be followed up by the guy thinking you did it, you fudge the answer.

And then they own you.

Much as §1001 can be used as a coercive weapon against people who committed no worse crime than not wanting to be in the government’s crosshairs, and what normal person doesn’t, there is a point to be made about law enforcement having a tool to compel people to tell the truth. Do we not want people to tell police the truth? Do we not want to give law enforcement the means to find the truth? Is there a countervailing policy in favor of lying to the government?

That it’s an asymmetrical power, that they can lie to you with impunity, but you have to tell the truth or you’ve committed a crime, is how the system is intentionally built. It serves a rational purpose, whether you like it or not. It’s one of many aspects of the legal system that’s asymmetrical.  There’s a reason why the government can charge you with a crime but you can’t empanel a grand jury and indict a cop.

But that doesn’t mean there aren’t tweaks that could introduce a greater measure of legitimacy to the concept. One of the elements of a §1001 offense is that the misrepresentation be “materially false.” In other words, it’s not enough that it not be completely honest, but that the dishonesty must relate to a fact which is relevant and sufficiently significant to the matter at hand.

Ken White raised the point that by adding the element of the misrepresentation being relied upon by the government to its detriment, it could change §1001 from being used primarily as a perjury trap to the investigative tool it was intended to be. Does this solve the problem?

Short of [repealing §1001], Congress could require federal agents to warn people, at the beginning of any interview, that they have the right not to answer any questions or to consult an attorney before they do, and that if they lie during the course of the interview they can be prosecuted even if they have committed no other crime. If that sounds a lot like the famous Miranda statement of rights, that’s because it is; but the Miranda ruling currently applies only when a person has been taken into custody.

The irony here is that everybody knows the Miranda warnings. It’s on all the cop shows. Yet, people talk to the cops. All the time. Talk, talk, talk. You’re not required to meet with the feds. You have the right to say no. You have the right to get a lawyer, to have the lawyer with you should you decide to have a chat. The lawyer’s job is to warn you of §1001, among many other things.

So now you know about the trap, just as so many others who went in to talk to the feds even though they didn’t have to, and ended up charged with a §1001 violation. Maybe the law isn’t the problem at all.

42 comments on “The Perjury Trap

  1. Richard Kopf

    SHG,

    As you know, section 1001 does contain a materiality component. See18 USC § 1001 (a)(2) (“makes any materially false, fictitious, or fraudulent statement or representation”).

    A common definition of materiality (this one drawn from the Eighth Circuit Model Instructions) reads this way:

    “A “material fact” is a fact that would naturally influence or is capable of influencing a decision of the agency. Whether a [statement] [representation] is ‘material’ does not depend on whether the agency was actually deceived or misled.”

    By requiring the government to prove that the statement is one that would naturally influence or that was capable of influencing the government, the statute has taken a middle ground between the extremes of white lies that could never harm (deceive) the government and black lies that in fact harm (deceive) the government–the middle ground being lies that could harm (deceive) the government.

    As for me, and perhaps as expected, I believe the statute strikes the correct balance. I think to require witnesses to tell the truth about stuff that might deceive the government (and which must be proven beyond a reasonable doubt) helps the government do its job without placing an undue burden on the citizen-witness. But then again, I’m from the government and I am always here to help you!

    All the best.

    RGK

    1. SHG Post author

      Beyond “materiality” being almost as squishy as “reasonable,” the “right balance” is different when the govt is trying to ascertain information rather than testing the veracity of a witness and setting a trap. They can still set the trap to figure out if I person is telling the truth, but that’s hardly the same thing as prosecuting a person for failing the test. The former does harm. The latter does not.

      1. Richard Kopf

        SHG,

        As for the trap issue, and as you rightly point out, that’s what CDLs are for.

        But, I also agree with you that: “Maybe the law isn’t the problem at all.”

        All the best.

        RGK

        1. SHG Post author

          The Supremes got the Miranda warnings all wrong. They could have left it at “STFU,” and it still wouldn’t stop people from talking.

          1. wilbur

            That’s true, and it’s because human nature inexorably leads nearly all of us to try to talk our way out of a sticky situation.

            It’s an overstatement, but I’ve always said no fully innocent man ever got arrested without screaming his innocence. Jurors intuitively know it too, and that’s why they are instructed out the yin-yan to ignore a defendant’s silence.

    2. Skink

      You’re all missing the point. The issue is governed by the Legal Equibalance Doctrine, which states as follows: “if the government deceives you in any manner, you can lie to it about anything except income.” There’s always an exception.

  2. David

    Forgive my ignorance, but has there been a 1st Amendment challenge to 1001? It seems like if the questioning is not under oath, that a person should be free to say whatever they like, and it is up to the prosecution to figure out if it’s true or not. Lying to police doesn’t seem like it would fall under one of the categories of unprotected speech.

    1. SHG Post author

      An interesting idea, but speech in furtherance of a crime is a recognized exception. Still, a bit of a circular argument.

      1. LocoYokel

        Funny, I don’t see that exception when I read the Bill of Rights. They must have a different version than I do, maybe they’re reading the KJV while I’m reading the NIV edition.

        Of course it goes without saying that IANAL, especially a constitutional lawyer so maybe I just can’t see the extra small, implied clauses between the lines.

  3. Michael Shapiro

    The key to prepping a client for an interview by a federal agent is to emphasize just two rules. First, if you respond to a question the response must be truthful. Second, there is no requirement to respond to every question. In other words, the client needs
    to understand that there is no compulsion to respond. They can tell the agents the good stuff and decline to answer when that is the better option. Trying to decide “on the fly” if an answer, true or not, is material is next to impossible. That is especially true when, as is almost always the case, they know a lot more than you do. But, simply saying, “I’m not prepared to answer that”, or “next question”, or words to that effect, is in my experience, a safe and effective strategy.

    1. SHG Post author

      While not wrong, although off-topic, passing on a question has little to do with avoiding the trap since you don’t know which question lays the trap.

    2. David

      You forgot to include your phone number and “call me if you need a lawyer!!!” at the end. Since when do you allow lawyer ads, SHG?

    3. Ken Mackenzie

      Can you cherry pick questions to answer? In the UK and Australia that harms the defence. No inference can be drawn from total silence, but if the suspect selectively answers some questions and not others the jury is entitled to draw its own conclusions.

      1. SHG Post author

        So when one commenter goes off topic, that’s an invitation for another to go even further off topic? You know better than this.

  4. B. McLeod

    I think some of this may be a bit suspect since the Stolen Valor Act went down, but it could be a long time before there is a test case, because federal time is real time.

        1. SHG Post author

          Brogan was 1998. Alvarez was 2012. So it’s possible that Alvarez reflects a change in the Brogan rationale, even though Brogan remains the law for now.

  5. Nemo

    Perhaps I’m veering off-topic here, but for me the event that best illustrates the danger trying to answer police questions is the traditional question, “do you know how fast you were going back there?”.

    The question seems so ordinary, such a social norm, perhaps even trivial, but the key is that there is no real way to answer the question to your own benefit. Almost any answer you give can be used against you, if you happen to challenge the ticket, because the answer you give will either be an admission/confession, or a lie, which is illegal.

    I bring up the point because to goundlings like me, the examples of a federal investigation or even an ordinary police investigation aren’t really relate-able. We’re good people, after all, so saying that if you find yourself the subject of either, keep your trap shut is the proper response doesn’t really sink in. It isn’t something that we believe is going to happen to us, so we don’t really pause to consider the core message.

    Speeding tickets are another story.

    1. SHG Post author

      Cool story, Nemo, but I never promised that you would be able to relate to the subject matter of every post here. I’m not going to ask about the rapey ones, either.

      (Not that I would offer legal advice here, but just because the cop asks a question doesn’t mean you have to answer it. You could always respond, “would you like my license and registration, officer,” or just smile benignly and appreciate this great nation of ours and try not to get shot.)

      1. Nemo

        Apparently I fell short on the first attempt, since I see no comment from you on the central point I was trying to make, so I’ll try again.

        If lawyers such as yourself and Ken White are trying to deliver the message that talking to the police is a bad idea, using big, cool stories getting mass coverage in the media isn’t working very well. That’s a pity, because it’s an important message.

        Those stories are very cool, but they aren’t the sort of thing that non-lawyers are going to take personally. The good guy curve means that the reader is working on a mental basis that it could not happen to herself. They aren’t going to be questioned by the Feds, and almost all of them are correct in the assumption.

        Couching the message in terms of things people see as a genuine possibility, such as I suggested with the Catch-22 cops often use in speeding ticket cases, is a different kind of story. It isn’t cool and in the national spotlight, but lots of people get pulled over for traffic violations, and even if you’re a good driver, it’s a real possibility for anyone who drives.

        Pro-5th Amendment lawyers have depended on the big, cool stories about famous people in big trouble as the basis for the message “Don’t talk” for some years now. If y’all think that the message is gaining widespread acceptance via this tactic, have at.

        Maybe I’m wrong with the above, but it’s not a tactic that I’ve seen you lawyers use much for delivering the message. Big, cool stories are the normal basis for the message, not little stuff that could happen to anyone.

        You’re the wordsmith, the professional persuader, the guy with the well-known blawg (and just as a tummy rub, a damn fine writer, to boot), so I’ll put it to you directly, which is a groundling more likely to incorporate mentally, a message based on something that she believes will never happen to herself, or one that’s a real possibility in her future?

        1. SHG Post author

          I got it. This isn’t the post for you to go off on what you want it to be. There are other posts here that address your issues. Not this one. I don’t keep writing the same posts over and over, even if you think I should. You don’t get to dictate what my posts are about no matter what you think matters most.

      1. Billy Bob

        Anything you say, can–and will–be used against you. No, on the back of your T-shirt. (Skink has a sense of humor.) Nobody looks at your forehead, or in the eyes, these days. Four deputy sheriffs stood by while seventeen students get shot to death. They were “just doing their jobs.” Amazing, isn’t it?

        This thread has been substandard, notwithstanding the appearances of the judge from the Western District. So Gates and the other two guys made mistakes! Why has not anyone said that? It’s “on topic” after all. Finally, It’s all Trump’s fault,… again. EVERYTHING he says is “immaterial”, when you get down to it. And I don’t mean Maybe! And he cannot be charged; that is the funny part. Only *impeached* for “high crimes and misdemeanors.” It’s the misdemeanors that bother us the most. We don’t pay no nevermind to any high crimes, even if they’re material to some silly ongoing [federal] investigation.

  6. Joe Hansem

    C’mon, isn’t there an “under oath” element? The cop or undercover agent has not taken such oath unless he or she is testifying or is signing an affidavit. Thus cops can, as part of judicially sanctioned “police trickery”, tell suspects that DNA, fingerprint or video evidence actually exists implicating them, when it doesn’t, in order to elicit incriminating statements from them.

    1. SHG Post author

      So you were being sarcastic? Sorry. When someone new comes along, it’s impossible to tell whether they’re serious or not, since who knows who they are. I get a lot of absurd comments. My apologies.

  7. Joe Hansem

    Well, maybe I was a little off point, but I wanted to comment on the judicial sanction that police lying has been given. This is summarized in People v. Mays (2009) 174 Cal.App.4th 156 with the apt term “police trickery” being used.

    1. SHG Post author

      First, use the reply button rather than start a new thread. Second, there’s a lot here before you got here, so there’s a good chance it’s already well covered, and going off on tangents is frowned upon. Please try to stay on the very narrow topic of the post. Third, cites don’t help much. Show, don’t tell, if you want to contribute an idea to the discussion. Nobody wants to read random caselaw, especially from CA.

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