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Part 9. Criminal Investigation

Chapter 1. Criminal Investigation Mission and Strategies

Section 3. Criminal Statutory Provisions and Common Law (Cont. 1)

9.1.3  Criminal Statutory Provisions and Common Law (Cont. 1)

9.1.3.4 
TITLE 18
CRIMINAL PENALTIES APPLICABLE TO FRAUD AND MISCELLANEOUS INVESTIGATIONS

9.1.3.4.4  (08-11-2003)
Section 111. Assaulting, Resisting, or Impeding Certain Officers or Employees

  1. The provisions of IRC §7212, relating to Attempts to Interfere with Administration of Internal Revenue Laws, are set forth in the previous section. This statute, while effecting the work of CI, is primarily enforced by the Internal Security function of IRS. 18 USC §111 states in its entirety:

    (a) In general.— Whoever—

    (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties; or

    (2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term in service,

    shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than three years, or both.

    (b) Enhanced penalty.—Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than ten years, or both.

9.1.3.4.5  (08-11-2003)
Section 115. Influencing, Impeding, or Retaliating Against a Federal Official by Threatening or Injuring a Family Member

  1. 18 USC §115 states in its entirety:

    (a)(1) Whoever—

    (A) assaults, kidnaps, or murders, or attempts or conspires to kidnap or murder, or threatens to assault, kidnap or murder a member of the immediate family of a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under section 1114 of this title; or

    (B) threatens to assault, kidnap, or murder, a United States official, an United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under such section,


    with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties, shall be punished as provided in subsection (b).

  2. Whoever assaults, kidnaps, or murders, or attempts or conspires to kidnap or murder, or threatens to assault, kidnap or murder any person who formerly served as a person designated in paragraph (1), or a member of the immediate family of any person who formerly served as a person designated in paragraph (1), with intent to retaliate against such person on account of the performance of official duties during the term of service of such person, shall be punished as provided in subsection (b).

    (b)(1) An assault in violation of this section shall be punished as provided in section 111 of this title.

    (2) A kidnapping or attempted kidnapping, or conspiracy to kidnap in violation of this section shall be punished as provided in section 1201 of this title for the kidnapping, attempted kidnapping or conspiracy to kidnap of a person described in section 1201(a)(5) of this title.

    (3) A murder, attempted murder, or conspiracy to murder in violation of this section shall be punished as provided in sections 1111, 1113, and 1117 of this title.

    (4) A threat made in violation of this section shall be punished by a fine under this title or imprisonment for a term of not more than five years, or both, except that imprisonment for a threatened assault shall not exceed three years.

    (c) As used in this section, the term—

    (1) "Federal law enforcement officer" means any officer, agent, or employee of the United States authorized by law or by a Government agency to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of Federal criminal law;

    (2) "immediate family member" of an individual means-

    (A) his spouse, parent, brother or sister, child or person to whom he stands in loco parentis; or

    (B) any other person living in his household and related to him by blood or marriage;

    (3) "United States judge" means any judicial officer of the United States, and includes a justice of the Supreme Court and a United States magistrate judge; and

    (4) "United States official" means the President, President-elect, Vice President, Vice President-elect, a Member of Congress, a member-elect of Congress, a member of the executive branch who is the head of a department listed in 5 USC §101, or the Director of the Central Intelligence Agency.

    (d) This section shall not interfere with the investigative authority of the United States Secret Service, as provided under sections 3056, 871, and 879 of this title.

9.1.3.4.6  (08-11-2003)
Section 286. Conspiracy to Defraud the Government with Respect to Claims

  1. 18 USC §286 states in its entirety:

    Whoever enters into any agreement, combination, or conspiracy to defraud the United States, or any department or agency thereof, by obtaining or aiding to obtain the payment or allowance of any false, fictitious, or fraudulent claim, shall be fined under this title or imprisoned not more than ten years, or both.

  2. Elements of the Offense - 18 USC §286

    1. An agreement, combination, or conspiracy to defraud the United States;

    2. By obtaining or aiding to obtain the payment of any false, fictitious or fraudulent claim.

  3. The crime proscribed by Section 286 is the entering into an agreement to defraud the government in the manner specified. In order to convict, the government must prove that the defendants agreed to engage in a scheme to defraud the government and knew that the objective of the scheme was illegal. The government need not establish an overt act undertaken in furtherance of the conspiracy in order to prove a violation of Section 286 because, unlike Section 371, an overt act is not an element of a Section 286 conspiracy. The government must also prove that the conspirators agreed to defraud the government by obtaining the payment of false claims against the government. There is no requirement that the coconspirator actually obtained the payment or that the government prove that any steps were taken to consummate the filing of a false claim, so long as the existence of the agreement can be proved. As a practical matter, the elements of proof in Section 286 cases generally do not differ from proof in Section 371 tax cases, because in most false claims conspiracy cases the existence of the agreement will be proved by acts that were undertaken in furthering the conspiracy or in consummating the attempt to obtain payment of the claim.

9.1.3.4.7  (08-11-2003)
Section 287. False, Fictitious or Fraudulent Claims

  1. 18 USC §287 states in its entirety:

    Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title

9.1.3.4.7.1  (07-29-1998)
Elements—False, Fictitious or Fraudulent Claims (18 USC §287)

  1. The elements of a criminal violation under 18 USC §287 are:

    1. making or presenting a claim upon or against the United States

    2. the claim was false, fictitious, or fraudulent

    3. knowledge that the claim is false, fictitious, or fraudulent when presented

  2. The term "false" means unfounded or untrue; "fictitious" means not real; and "fraudulent" means wrong or deceitful. These terms have no special legal significance as used in this statute and are to be applied using their ordinary and well understood meanings.

  3. Fraud within this section includes any conduct calculated to obstruct or impair the efficiency of the United States and to destroy the value of its operations. Actual pecuniary loss to the government is not an essential element of this offense.

  4. Whether the claim is false, fictitious, or fraudulent must be determined based on all of the facts and circumstances surrounding it. It is not essential that the bill, voucher, or other thing used as the basis for the claim contain in and of itself fraudulent or fictitious statements or entries. For example, an income tax return, correct on its face, would still constitute a false claim if the taxpayer filing the return knew that the refund shown to be due had already been paid resulting from the filing of a prior return.

  5. An income tax return claiming a refund of withheld taxes represents a false claim although the amount claimed represents an overpayment of withholding taxes resulting from a fraud perpetrated on the employer. For example, if an individual arranges with a paymaster to defraud an employer by having the individual's name entered on a payroll without performing any work or receiving any wages and withholding tax is then paid to the government based on the amount of the alleged wages, the filing of a final income tax return by the phantom employee showing the alleged wages and claiming a refund of the withheld tax, constitutes the filing of a false claim under this section.

  6. This section is particularly appropriate in instances where a false claim for refund has been filed. It is only necessary to prove that the defendant made a claim for refund taxes against the government and that he/she knew that he/she was not entitled to receive it.

9.1.3.4.8  (08-11-2003)
Section 371. Conspiracy to Commit Offense or to Defraud the United States

  1. 18 USC §371 states in its entirety:


    If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

9.1.3.4.8.1  (07-29-1998)
Conspiracy in General

  1. A conspiracy is a combination of two or more persons who, by concerted effort, join to accomplish a criminal or unlawful act, or some act not in itself criminal or unlawful but by criminal or unlawful means.

  2. As a rule, conspiracy charges have not been instituted when evidence was available to make out charges of violations of substantive statutes. If proof exists to support substantive charges, the addition of conspiracy counts would involve needless duplications.

  3. The conspiracy is distinct from the crime contemplated and one may be convicted of both the completed crime and the conspiracy, even though the completed crime was alleged as the overt act necessary to convict for conspiracy.

  4. An acquittal on a criminal charge does not preclude a prosecution for conspiracy to commit the same criminal violation. The same overt acts charged in a conspiracy count may also be charged and proved as separate criminal violations since the agreement to do the act is distinct from the act itself.

  5. The word defraud, as used in this section, is broad enough to include anything which interferes with or hampers the United States in the successful prosecution of any policy, as well as the ordinary common law meaning of the word. For example, a conspiracy to cause government officers to neglect their duties would be a conspiracy to defraud the United States of their honest and effective services.

  6. Although there can be a conspiracy to violate almost any statute or to defraud any agency of the government, two types of conspiracy investigations are of special concern to IRS CI: tax conspiracies and Klein conspiracies. The Department of Justice Criminal Tax Manual contains an excellent section on these types of conspiracies, and should be consulted for additional information.

9.1.3.4.8.2  (07-29-1998)
Klein Conspiracy

  1. A Klein conspiracy, which is named for the lead case, is a conspiracy to defraud the government by impeding and impairing the lawful function of the Internal Revenue Service.

  2. If evidence is developed in a case which shows deceit, trickery, craftiness or dishonesty, and if done in furtherance of an agreement to interfere with or obstruct the IRS in its lawful function of tax administration, including examination, assessment, and collection, then there is a potential Klein conspiracy.

  3. The object of the Klein conspiracy would be a plan and the subsequent overt acts by which conspirators knowingly deceive the IRS. However, tax evasion does not necessarily have to be proved to have been the motive for the conspiracy to defraud.

9.1.3.4.8.3  (08-11-2003)
Tax Conspiracy

  1. Reference to the particular Title 26 criminal tax statute which the conspiracy attempted to violate must be made in the indictment, (unless it is a conspiracy to defraud, impede or impair the IRS as in a Klein conspiracy, discussed below). For example, A, B, & C conspired to evade payment of A's tax liability in violation of IRC §7201.

9.1.3.4.8.4  (08-11-2003)
Elements— Conspiracy to Commit Offense or to Defraud the United States (18 USC §371)

  1. The general conspiracy statute encompasses two distinct types of conspiracies.

    1. a conspiracy to commit any offense against the United States; or

    2. a conspiracy to defraud the United States, or any agency thereof

  2. The elements of the offense are therefore:

    1. an agreement by two or more persons

    2. to commit an offense against the United States; or to defraud the United States or one of its agencies

    3. an overt act to effect the objective of the agreement

    4. with the requisite intent to defraud or commit the substantive offense

  3. A single conspiracy may have multiple illegal objectives which involve a number of sub-agreements to commit each of the specified objectives, as long as there is one overall agreement to perform various functions to accomplish the objectives of the conspiracy.

  4. A government agent is not counted as a party to the conspiracy in determining if there were two or more members.

9.1.3.4.8.4.1  (08-11-2003)
Combination of Two or More Persons

  1. A person may become a conspirator by joining an existing conspiracy or by knowing of its existence and committing an overt act in furtherance thereof.

  2. After joining, a co-conspirator becomes liable for all acts and statements of participants which are committed in connection with the plan and common object of the conspiracy whether committed before or after he/she joined the conspiracy.

  3. There must be intentional participation in a transaction with the view toward furthering the common purpose, however, the mere knowledge, acquiescence, or approval of an act without more, is not enough to constitute a party to a conspiracy. Thus, if an officer knew that several other officers of a company were meeting at a particular place to fraudulently rewrite a set of business records in an attempt to mislead an Internal Revenue agent who was planning to audit the return filed by the company and the officer did not participate in any way to further the plan, he/she would not become a co-conspirator.

  4. When a conspiracy exists, the joining of new members thereafter does not create a new conspiracy. Conversely, if one or more of the conspirators withdraw, such withdrawal neither creates a new conspiracy nor changes the status of the remaining members.

  5. A conspirator may withdraw by an affirmative and effective act that disavows or defeats the purposes of the conspiracy. He/she is not liable for the subsequent acts of his/her former associates, and the statute of limitations commences to run, as to him/her, upon his/her withdrawal.

  6. A conspirator may avoid guilt completely by withdrawing prior to the commission of the first overt act that furthers the conspiracy.

  7. When only two persons are charged with conspiracy and there is no evidence implicating anyone else, acquittal or reversal as to one results in the acquittal or reversal of the other. However, if the indictment charges two named conspirators and persons unknown as co-conspirators, and there is evidence to support the charge that one of the two defendants conspired with the unknown persons, that defendant's conviction may stand despite the fact that the other named defendant is acquitted. The rule that acquittal of all alleged conspirators except one results in acquittal of all applies only to acquittals on the merits. Thus, if the charge against one of two conspirators is dismissed as the result of a nolle prosequi, it would not affect the case against the other since a nolle prosequi does not amount to a dismissal on the merits.

  8. A person's involvement in a conspiracy cannot be established through his/her alleged co-conspirator's acts or declarations done or made in his/her absence without proof from another source of his/her connection with the conspiracy.

  9. A corporation can be a conspirator with other corporations, or with natural persons including its own officers, employees or stockholders in most instances. It is responsible for the acts of its agents which are performed within the scope of their authority.

  10. Partners may be prosecuted for conspiracy to defraud the government of income taxes by making false and fraudulent partnership and individual returns.

  11. A husband and wife may be found guilty of conspiracy, as they are considered separate persons under the conspiracy statute.

  12. It is necessary that the conspirator intend to be a party to the conspiracy, but one who pretends to join a conspiracy in order to trap the criminals is not a conspirator.

  13. All conspirators need not be defendants. Should the prosecution require the testimony of one of the conspirators to prove the conspiracy, he/she could be named in the indictment as a co-conspirator even though he/she is not named as a defendant.

  14. All acts and statements in furtherance of the conspiracy may be introduced in evidence against the conspirators on trial regardless of whether the person who committed such act or made such statement is on trial.

9.1.3.4.8.4.2  (07-29-1998)
Agreement

  1. Conspirators usually do not put their agreements into writing nor do they make public their plans. Hence, direct proof of a conspiracy is rarely available and proof must usually be deduced from the conduct of the parties and the surrounding circumstances. It is sufficient to show that the minds of the parties met in an understanding way so as to bring about an intelligent and deliberate agreement to do the act or acts charged, although such an agreement is not manifested by any formal words.

  2. It is not necessary that each conspirator know or see the others, but it is necessary to prove that each person charged in the conspiracy knew of the agreement and voluntarily joined the conspiracy intending to achieve the object of the agreement.

  3. After the central purpose of a conspiracy has been attained, any subsidiary agreement to conceal or other steps taken to cover up the crime in order to escape detection and punishment are not overt acts in furtherance of the conspiracy nor are they probative of the conspiracy.

9.1.3.4.8.4.3  (08-11-2003)
Overt Act

  1. An overt act is any act or statement designed to advance, aid, or assist in accomplishing the object of the conspiracy. An overt act need not violate the law itself and may be as innocent as calling an IRS office in order to obtain a blank claim form. It is not necessary that each conspirator commit an overt act and, therefore, a party to a conspiracy may be guilty of conspiracy without any knowledge that a co-conspirator actually committed an overt act. Preparing, signing, and filing a false return are common overt acts in a conspiracy to attempt to defeat and evade the payment of tax by filing a false and fraudulent return.

  2. The crime is not complete until an overt act is performed by at least one of the conspirators to effect the object of the conspiracy. A party may avoid the penalty prescribed by the statute if he/she abandons his/her design before the act is done.

9.1.3.4.8.4.4  (07-29-1998)
Statute of Limitation

  1. A 6-year period of limitations is applicable if the conspiracy is to defraud or attempt to defraud the United States, or any agency thereof, or to attempt in any manner to evade or defeat any tax or the payment thereof. (IRC §6531)

9.1.3.4.8.4.5  (07-29-1998)
Duration of the Conspiracy

  1. Conspiracy is a continuing crime completed upon the performance of the first overt act in furtherance of the conspiracy, and it continues until the completion of the last overt act, including the division of the fruits of the crime, if any. The end of the conspiratorial relationship is particularly important in settling problems relating to the admissibility of evidence, prosecution of later joining conspirators, and the running of the period of limitations. In determining the termination date, it is necessary to consider carefully the terms of the agreement.

  2. If the conspiracy involves an attempt to defeat and evade the payment of income tax by filing a false and fraudulent income tax return, the conspiracy is ordinarily terminated at the time the return is filed. However, a conspiracy to evade taxes by making false statements to conceal unreported income was held to continue through the making of such statements.

9.1.3.4.9  (08-11-2003)
Section 1001. Statements or Entries Generally

  1. 18 USC §1001 states in its entirety:


    (a) 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—

    (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

    (2) makes any materially false, fictitious, or fraudulent statement or representation; or

    (3) 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.

    (b) 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.

    (c ) With respect to any matters within the jurisdiction of the legislative branch, subsection (a) shall apply only to—

    (1) 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



    (2) 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.


    Note:

    This statute can only be used by CI when it relates to some other tax or money laundering violation for which CI has jurisdiction.

  2. The statute covers false statements which might impede the exercise of federal authority. Pecuniary loss to the government is not a requirement. Any impairment of the administration of its governmental functions is sufficient and the commission of the crime is not dependent upon the success of the intended fraud.

  3. It is possible for a defendant to be charged with a violation under this section and also to be charged with an attempt to defeat or evade the payment of tax (IRC §7201) in connection with the same return.

  4. Prosecution may lie under this statute, as well as under 18 USC §1503 (Obstruction of Justice), against persons summoned to produce records in their possession, who falsely state that the records have been stolen from them, and conspire together to conceal them.

9.1.3.4.9.1  (08-11-2003)
Elements—Willfully Making False Statements (18 USC §1001)

  1. The elements of a criminal violation under 18 USC §1001 are:

    1. a matter within the jurisdiction of a department or agency of the United States

    2. falsification or concealment by trick, scheme or device, of a material fact; or the making of false, fictitious or fraudulent statements or representations; or the making or using of any false writing or document

    3. the false statement or representation, or false document related to a material matter

    4. knowledge of the falsity by the party charged

    5. willfulness, see subsection 9.1.3.3.2.2.3. of this section

9.1.3.4.9.1.1  (07-29-1998)
Jurisdiction

  1. The term "jurisdiction" means a matter as to which a department or agency has the power to act, i.e., within the agency's investigative authority and the term "department" includes the U.S. Treasury Department. (5 USC §1).

9.1.3.4.9.1.2  (07-29-1998)
Falsification and Materiality

  1. It is not necessary that the statement be required to be made by some regulation or law. For example, a taxpayer could commit a violation under this section by voluntarily furnishing a false and fraudulent net worth statement during an official investigation of his/her income tax liability.

  2. The weight of authority requires proof of materiality in any prosecution under this section. Courts have determined materiality is required in all three prohibited activities. A commonly used test for determining whether a matter is material is whether the falsity or concealment had a natural tendency to influence, or was capable of influencing, the agency or department.

  3. The violation may involve formal or informal records, forms, and instruments, and even oral statements. It is not necessary the statements be under oath, and the perjury corroboration rule does not apply.

9.1.3.4.9.1.3  (07-29-1998)
Knowledge and Willfulness

  1. As used in this section, the term "willful" simply means the defendant did the forbidden act deliberately and with knowledge. In applying this statute, knowledge cannot be imputed to a corporate officer merely because the officer appears to be active in corporate affairs.

9.1.3.4.10  (08-11-2003)
Section 1621. Perjury Generally

  1. 18 USC §1621 states in its entirety:


    Whoever—

    (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or



    (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under 28 USC §1746 willfully subscribes as true any material matter which he does not believe to be true




    is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

    Note:

    This statute can only be used by CI when it relates to some other tax or money laundering violation for which CI has jurisdiction.

  2. To convict for perjury the prosecution must produce testimony more direct and positive than is required to sustain a verdict of guilt in other offenses.

9.1.3.4.10.1  (08-11-2003)
Elements—Perjury (18 USC §1621)

  1. The elements of this offense are:

    1. an oath authorized by law of the United States

    2. taken before a competent tribunal officer or person

    3. a false statement willfully made as to facts material to the hearing

9.1.3.4.10.1.1  (07-29-1998)
Oath

  1. The oath must be solemnly administered by a duly authorized officer who is authorized to do so by the laws of the United States. The source of a special agent's authority to administer an oath is derived from IRC §7602, Delegation Order 4 and Delegation Order 27. Notaries public can administer oaths and take affidavits on which perjury can be predicated in federal courts only in cases and to the extent authorized by federal statutes.

  2. For a violation to occur, it is immaterial in what form the oath is given if, at the time the oath is given, the party professes such form to be binding on his/her conscience. However, a special agent, when administering an oath, should follow the language in section 1621 as a guide and advise the witness to testify truthfully. The special agent's demeanor should be such as to impress upon the witness the solemnity of the oath and the need for telling the truth.

9.1.3.4.10.1.2  (07-29-1998)
False Statement

  1. The essence of perjury is the false assertion of knowledge or belief, rather than the truth or falsity of the statement itself. Thus, perjury may be committed as to a statement which is factually true but the deponent falsely asserts it to be true to his/her knowledge or belief, when he/she really believes it to be false or lacks any knowledge of its truth or falsity. It is equally as perjurious for a person to knowingly and corruptly swear that he/she is ignorant of a fact of which he/she is actually aware as it is to swear that he/she knows something to be a fact when he/she is actually ignorant of it.

  2. The burden of proof is upon the prosecution to establish that the deponent knew or believed that the statement to which he/she testified was false. This must be established by the testimony of two witnesses, or by one witness and corroborating written documents, which can be substantiated by independent witness testimony.

  3. The mere fact that a prior statement was inconsistent with a later statement does not satisfy the elements of perjury. The prosecution must adduce sufficient evidence of the circumstances under which each statement was made for the jury to determine if one of them was false. Mere showing that the accused later denied the truth of an earlier statement is insufficient, even if the denial is established by the testimony of more than one witness. There must still be strong, clear evidence to establish the falsity of the earlier statement.

  4. There can be no conviction for perjury if the defense can show that the statements or answers are literally accurate, technically responsive, and legally truthful. Mere showing of rash or reckless statements under oath will not support a charge of perjury, since the willful intent to mislead or deceive is lacking. However, proof that a person gave testimony under oath in reckless disregard of its truth or falsity would be equivalent proof that he/she has testified with knowledge of its falsity.

  5. The proof must be of a specific false statement or statements.

9.1.3.4.10.1.3  (07-29-1998)
Material Matter

  1. In order to constitute perjury, the matter sworn to must be a material matter that the deponent knows or believes to be false. Any statement which is relevant to the matter under investigation is sufficiently material to form the basis of a perjury charge.

  2. The special agent should be prepared to gather testimony or other competent evidence concerning the purpose of information sought from the witness and the place it takes in the chain of evidence sufficient to convince the court of its materiality. The materiality of the false testimony may be shown by the record of the proceedings in which it was given or by other competent evidence.

  3. A special agent's principal consideration in determining whether a false statement given in the course of an official investigation is material and perjurious is: Can the statement affect the investigation?

9.1.3.4.10.1.4  (08-11-2003)
Willfulness, Knowledge, and Intent

  1. In order to constitute perjury, the false statement must be made with criminal intent, that is, it must be made with intent to deceive, and must be willfully, deliberately, knowingly, and corruptly false. The subject of willfulness is discussed in subsection 9.1.3.3.2.2.3.

  2. The crime of perjury in an affidavit is complete when the oath is taken with the necessary intent, but it is immaterial and irrelevant that the false affidavit is never used.

9.1.3.4.11  (08-11-2003)
Section 1622. Subornation of Perjury

  1. 18 USC §1622 states in its entirety:

    Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both.

    Note:

    This statute can only be used by CI when it relates to some other tax or money laundering violation for which CI has jurisdiction.

9.1.3.4.12  (07-29-1998)
Section 1623. False Declarations Before Grand Jury or Court

  1. 18 USC §1623 states in its entirety:

    (a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under 28 USC §1746 in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both.

    (b) This section is applicable whether the conduct occurred within or without the United States.

    (c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if—

    (1) each declaration was material to the point in question, and

    (2) each declaration was made within the period of the statute of limitations for the offense charged under this section.


    In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant, while under oath, made irreconcilably, contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true.

    (d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.

    (e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.

    Note:

    This statute can only be used by CI when it relates to some other tax or money laundering violation for which CI has jurisdiction.

  2. The offense requires proof that the defendant knowingly made a false material declaration or makes or uses any information, including any book, paper, document, record, recording, or other material, knowing the same to contain a false material declaration.

  3. This statute further provides that an indictment or information charging a violation which is based on an allegation that the defendant knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if each declaration was material to the point in issue and each statement was made within the statute of limitations period for this offense. It is not necessary that proof be made by any particular number of witnesses or by documentary or other type of evidence.

9.1.3.4.13  (08-11-2003)
Section 1952. Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises

  1. 18 USC §1952 states in its entirety:

    (a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to—


    (1) distribute the proceeds of any unlawful activity; or


    (2) commit any crime of violence to further any unlawful activity; or


    (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, of carrying on, of any unlawful activity, and thereafter performs or attempts to perform—


    (A) an act described in paragraph (1) or (3) shall be fined under this title, imprisoned for not more than 5 years; or both; or


    (B) an act described in paragraph (2) shall be fined under this title, imprisoned not more than 20 years, or both, and if death results shall be imprisoned for any term of years or for life.

    (b) As used in this section

    (i) "unlawful activity" means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under 1956 or 1957 of this title and

    (ii) the term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

    (c) Investigations of violations under this section involving liquor shall be conducted under the supervision of the Secretary of the Treasury.