False statements and false claims

American Criminal Law Review

Volumn 50, Issue 4, 2013, Pages 953-987

  Krawitz, Nick ^a   Netisham, Margaret ^a  

^a NONE

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EID: 84901612648     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (368)

1. 31 U.S.C. §§ 3729-3733 (2006 & Supp. 2010). The Fraud Enforcement and Recovery Act of 2009 amended the civil False Claims Act in a number of significant ways. See Pub. L. No. 111-21, 123 Stat. 1617 (2009). For a thorough discussion of the impact of the amendments on civil suits, see Jeremy E. Gersh, Note, Saying What They Mean: The False Claims Act Amendments in the Wake of Allison Engine, 5 J. Bus. & TECH. L. 125, 134-42 (2010).
2. See Pamela H. Bucy, Crimes by Health Care Providers, 1996 U. Ill. L. REV. 589, 592 (1996).
3. Ronald J. Nessim & Benjamin N. Gluck, Waiver of Copayments as False Statements, 14 HEALTH L. 1, 3(2002).
4. United States v. Allen, 13 F.3d 105, 109 (4th Cir. 1993) (holding defendants may lawfully be punished for making both a false claim and false statement against the government).
5. Compare United States v. Lawrence, 405 F.3d 888, 899 (10th Cir. 2005) (recognizing disagreement among the circuits but holding materiality is not an element of § 287)
6. United States v. Logan, 250 F.3d 350, 358 (6th Cir. 2001) (holding materiality is not an element of § 287)
7. United States v. St. Luke's Subacute Care Hosp., Inc., 178 F. App'x 711, 713 (9th Cir. 2006) ("Our court has yet to resolve definitively whether materiality is required under § 287.").
8. See United States v. Yermian, 468 U.S. 63, 69 (1984) (requiring actual knowledge of false statement but not of federal agency jurisdiction)
9. United States v. Tatoyan, 474 F.3d 1174, 1182 (9th Cir. 2007) (stating that to act willfully with respect to § 1001 means to act deliberately and with knowledge).
10. See United States v. Gumbs, 283 F.3d 128, 131 (3d Cir. 2002) (holding the defendant must know he is presenting a false claim)
11. United States v. Catton, 89 F.3d 387, 392 (7th Cir. 1996) ("It is implicit in the filing of a knowingly false claim that the claimant intends to defraud me government, and hence unnecessary to charge willfulness separately.").
12. See United States v. Horvath, 492 F.3d 1075, 1081 n.7 (9th Cir. 2007) (describing the statute's text as "sweeping" and the court's interpretation of the statute as "broad")
13. United States v. Kappes, 936 F.2d 227, 231 (6th Cir. 1991) ("Section 1001 is a catch-all, reaching those false representations that might 'substantially impair the basic functions entrusted by law to [the particular] agency,' but which are not prohibited by other statutes."
14. (quoting United States v. Olson, 751 F.2d 1126, 1128-29 (9th Cir. 1985)).
15. U.S. DEP'T OF JUSTICE CRIM. RESOURCE MANUAL, NO. 9-42.191, APPLICATION OF APPROPRIATE STATUTE ("It is the policy of the Department that in those instances in which the United States Attorney (USA) has a choice of statutes, charges normally should be brought pursuant to the more specific statute. In those cases in which special aggravating circumstances exist, the USA retains the discretion to charge a violation of the more serious general statute."), available at http://www.justice.gov/usao/eousa/foia-reading- room/usam/title9/42mcrm.htm#9-42.191 (last visited Oct. 1, 2012).
16. See United States v. Dedman, 527 F.3d 577, 603 (6th Cir. 2008) (allowing simultaneously conviction under 18 U.S.C. §§ 286 and 1001)
17. United States v. Laimeche, 56 F. App'x 835, 836 (9th Cir. 2003) (allowing simultaneous conviction under § 1001(a) and 18 U.S.C. § 408(a)(7)(B), which applies to false representation of a social security number, because each count requires proof of a different set of facts).
18. See Stuart P. Green, Uncovering the Cover-Up Crimes, 42 AM. CRIM. L. REV. 9, 21-22 (2005) (comparing the flexibility of § 1001 to prosecution under perjury or obstruction of justice statutes)
19. David A. Sklansky, Symposium, Starr, Singleton, and the Prosecutor's Role, 26 FORDHAM URB. L.J. 509, 515 (1999) (addressing use of § 1001 and issue of prosecutorial discretion over many kinds of criminal prosecutions).
20. see also United States v. Benkahla, 530 F.3d 300, 305, 311-13 (4th Cir. 2008) (affirming conviction of defendant under § 1001(a) and sentence enhancement under the terrorism enhancement provision in the Sentencing Guidelines Manual section 3A1.4)
21. United Stastes v. Biheiri, 299 F. Supp. 2d 590 (E.D. Va. 2004) (upholding defendant's conviction for making false statements in an application for naturalization but finding government did not prove circumstances warranting sentence enhancement under the terror enhancement provision); Dan Eggen & Julie Tate, U.S. Campaign Produces Few Convictions on Terrorism Charges; Statistics Often Count Lesser Crimes, WASH. POST, June 12, 2005, at A1 (stating that most of the 39 convictions under the Patriot Act proscribing crimes related to terrorism or national security were for making false statements and other "relatively minor crimes")
22. see also William K. Rashbaum & Liz Robbins, Terror Suspect Is Transferred to New York for Trial, N.Y. TIMES, Sept. 26, 2009, at A15 (detailing the arrest of a suspected terrorist on charges that he made false statements to federal investigators and recognizing the enhanced sentencing as a factor for determining the risk of defendant's flight).
23. See United States v. Kosth, 257 F.3d 712, 714 (7th Cir. 2001) (affirming conviction of defendant who made false statements to the Small Business Administration in an effort to obtain a loan).
24. See United States v. Tropin, 119 F. App'x 323, 326 (2d Cir. 2005) (affirming conviction based on defendant's failure to describe his trust assets to the Internal Revenue Service).
25. See United States v. Ahmed, 472 F.3d 427, 431, 436 (6th Cir. 2006) (affirming conviction of defendant based on false statements on forms submitted to gain employment with the Transportation Security Administration)
26. United States v. Camper, 384 F.3d 1073, 1075, 1078 (9th Cir. 2004) (holding defendant could be convicted of making a false statement to the government based on false statement on application for security clearance)
27. United States v. Whab, 355 F.3d 155, 164 (2d Cir. 2004) (affirming false Statement conviction based on statements made by defendant in application for United States passport).
28. See United States v. Johansson, 249 F.3d 848, 851 (9th Cir. 2001) (convicting defendant of making false statements by causing his company's drivers to violate the federal regulations on driving hours and to create and maintain false and fraudulent daily logs for inspection by Federal Highway Administration inspectors to conceal violations)
29. United States v. White, 270 F.3d 356, 363-64, 374 (6th Cir. 2001) (affirming conviction of defendant who reported false turbidity readings to Division of Water which frustrated enforcement of Environmental Protection Agency ("EPA") regulations).
30. United States v. Shafer, 199 F.3d 826, 828 (6th Cir. 1999) (outlining elements of offense under § 1001)
31. (quoting United States v. Lutz, 154 F.3d 581, 587 (6th Cir. 1998).
32. See Brogan v. United States, 522 U.S. 398, 417-18 (Souter, J., concurring) (discussing distinctions among oral, written, sworn, and unsworn statements).
33. See United States v. Atalig, 502 F.3d 1063, 1068 (9th Cir. 2007) (finding false certifications were filed for payments through the Disaster Unemployment Assistance Program)
34. Unites States v. Tagoe, 97 F. App'x 885, 886-87 (10th Cir. 2004) (affirming conviction under § 1001 for making misrepresentations on invoices and receipts for insurance claims submitted to the United States Postal Service).
35. United States v. Worthington, 822 F.2d 315, 316 (2d Cir. 1987) (holding checks that actively mislead and are intended solely to mislead, such as those naming fictitious drawee, fall "squarely within the dictionary definition of a 'false statement'").
36. This category does not include checks written for an amount greater than the balance of the account from which they are drawn. See United States v. Blankenship, 382 F.3d 1110, 1135 (11th Cir. 2004) (holding the contractual nature of the check is not a factual assertion; it creates a legal right to performance or compensation but cannot be "false" and because § 1001 is not a national "false contract" law, a check with insufficient funds is not encompassed by the statute)
37. Elliott v. United States, 332 F.3d 753, 762 (4th Cir. 2003) ("[A]n affirmative misrepresentation set forth on a check, as opposed to a check drawn on an account containing insufficient funds, constitutes a 'false statement'⋯.").
38. See United States v. Whab, 355 F.3d 155, 164 (2d Cir. 2004) (affirming false statement conviction based on statements made by defendant in application for United States passport)
39. United States v. Phoeun Lang, 672 F.3d 17, 21,27 (1st Cir. 2012) (affirming conviction under § 1001 of defendant alien for false statements made to the Department of Homeland Security in obtaining certificate of naturalization).
40. See United States v. Jara-Favela, 686 F.3d 289, 292-293 (5th Cir. 2000) (affirming deported alien defendant's conviction under § 1001 for making false statements to Customs and Border Patrol agents in attempted illegal reentry)
41. United States v. Ely, 468 F.3d 399, 401, 404 (6th Cir. 2006) (affirming defendant's sentence under § 1001 for making false statements to Customs and Border Protection officer in attempt to conceal smuggling of currency in excess of reporting requirement).
42. See United States v. Hsu, 364 F.3d 192, 196 (4th Cir. 2004) (affirming conviction under § 1001 for making materially false statements to the United States Customs Service)
43. United States v. Beras, 183 F.3d 22, 29 (1st Cir. 1999) (affirming conviction under § 1001 for making false statements to customs service regarding identity).
44. See United States v. Canova, 485 F.3d 674, 675-76 (2d Cir. 2007) (upholding § 1001 conviction based on false statements to Medicare agents)
45. Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936, 941 (7th Cir. 2002) (noting that Medicare fraud is covered by several federal felony statutes, including § 1001).
46. See United States v. Rashwan, 328 F.3d 160, 161 (4th Cir. 2003) (affirming conviction under § 1001 of invoking false statements in marriage for the purpose of obtaining a green card)
47. United States v. Tablie, 166 F.3d 505, 507 (2d Cir. 1999) (affirming conviction for falsely representing purpose of marriage to INS). See generally 18 U.S.C. § 1546 (2006) (prohibiting misrepresentations concerning an alien's marriage status made during the admission process); 8 C.F.R. § 210.2(e)(4) (2011) (describing false statements that could render alien applicant subject to prosecution).
48. See United States v. Stewart, 433 F.3d 273, 288-89 (2d Cir. 2006) (applying § 1001 to false statements made to federal investigators from the Securities and Exchange Commission, Federal Bureau of Investigation and United States Attorneys' Office)
49. United States v. Genao, 343 F.3d 578, 579 (2d Cir. 2003) (affirming conviction based on § 1001 for making false statements to the United States Attorneys' Office and the FBI).
50. Such statements are usually submitted in an attempt to profit under false pretenses. See United States v. Darrah, 119 F.3d 1322, 1328 (8th Cir. 1997) (holding defendant knowingly made false statement by failing to list loan on tax return submitted to IRS)
51. United States v. Shah, 44 F.3d 285, 296 (5th Cir. 1995) (affirming conviction for making false statement to GSA under § 1001)
52. cf. United States v. De Castro, 113 F.3d 176, 178 (11th Cir. 1997) (affirming conviction of mortgage broker who falsified loan documentation to U.S. Department of Housing and Urban Development in violation of § 1010).
53. But cf. United States v. Kozlowski, 647 F. Supp. 2d 1045, 1049-51 (W.D. Wis. 2009) (explaining that mere possession of false documents does not constitute "use" under § 1001, rather "[t]he evil to be prevented is the making of the false documents or the use of the document to obtain something of value," with "use" meaning "active employment").
54. see, e.g., United States v. Washington, 549 F.3d 905, 918-19 (3d Cir. 2008) (finding that a defendant's deliberate use of a false name throughout a district court proceeding was exempt from prosecution under § 1001).
55. Compare United States v. Horvath, 492 F.3d 1075, 1081 (9th Cir. 2007) (holding that § 1001(b) exception covers a defendant's false statement to a probation officer if the law requires the probation officer to include the statement in a pretrial services report ("PSR") and submit the PSR to the court)
56. United States v. Manning, 526 F.3d 611, 619-21 (10th Cir. 2008) (finding that a defendant's false statement to a probation officer is not embraced by the § 1001(b) exemption even when included in a mandatory PSR submitted to the court),
57. United States v. Triana, 468 F.3d 308, 310-11 (6th Cir. 2006) (affirming conviction under § 1001 based on false statements made to probation officer).
58. See United States v. Moore, 446 F.3d 671, 678 (7th Cir. 2006) (explaining that § 1001 applies to a scheme to conceal a material fact when there is a duty to disclose said fact).
59. See United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 506 (2d Cir. 1991) (applying § 1001 to attorney-client relationship).
60. United States v. Gardner, 72 F. App'x 932, 936-37 (4th Cir. 2003) (affirming defendant's conviction under § 1001 for misrepresenting her marital status on Social Security forms).
61. See United States v. Shenandoah, 595 F.3d 151, 157 (3d. Cir. 2010) (affirming defendant's conviction under § 1001 for failing to register as a sex offender)
62. abrogated on other grounds by Reynolds v. United States, No. 10-6549 (U.S. Jan. 23, 2012)
63. United States v. Mattox, 689 F.2d 531, 532 (5th Cir. 1982) (finding that filling in "N/A" in a government form when defendant in fact had relevant information violates § 1001).
64. See United States v. Mubayyid, 567 F. Supp. 2d 223, 226-26 (D. Mass. 2008) (showing standard of evidence needed under § 1001 to establish concealing material facts), aff'd in part, rev'd in part, 658 F.3d 35 (1st Cir. 2011)
65. United States v. Curran, 20 F.3d 560, 566 (3d Cir. 1994) (holding § 1001 proscribes both false statements and concealment of material facts but that proof needed to prosecute each offense differs).
66. See United States v. Woodward, 469 U.S. 105, 108 n.4 (1985) (per curiam) (noting affirmative misrepresentation on customs form is proscribed by statute even if no trick, scheme, or device is employed).
67. Compare United States v. Kosth, 257 F.3d 712, 720-21 (7th Cir. 2001) (holding that although defendant was not technically the manager, he effectively had control over day-to-day operations so his statements on a loan application were intentionally misleading)
68. United States v. Stephenson, 895 F.2d 867, 873-74 (2d Cir. 1990) (stating that defendant misrepresented or concealed information by actively seeking to mislead government officials even if his statements were literally true)
69. United States v. Good, 326 F.3d 589, 592 (4th Cir. 2003) (holding an indictment was properly dismissed when defendant's response to the question was literally true).
70. See Hubbard v. United States, 514 U.S. 695, 716-17 (1995) (Scalia, J., concurring) (stating that a § 1001 concealment occurs only when there is a duty to disclose that information).
71. See United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008) (reversing a conviction based on § 1001(a)(1) because "there must be a legal duty to disclose in order for there to be a concealment⋯ yet the government failed to identify'a legal disclosure duty except by reference to vague standards of conduct for government employees")
72. United States v. Calhoon, 97 F.3d 518, 526 (11th Cir. 1996) ("Falsity through concealment exists where disclosure of the concealed information is required by a statute, government regulation, or form.")
73. See United States v. Stewart, 433 F.3d 273, 318 (2d Cir. 2006) (stating defendant's duty to be truthful under § 1001 included a duty to disclose information)
74. United States v. Kappes, 936 F.2d 227, 231-32 (6th Cir. 1991) (explaining § 1001 provides a "catch-all" for false representations that impair basic agency functions even if misrepresentations are not prohibited by other statutes)
75. United States v. Austin, 817 F.2d 1352, 1354 (9th Cir. 1987) ("[T]he government is not required to prove that the defendant had a duty under some other statute to disclose.").
76. United States v. Curran, 20 F.3d 560, 567 (3d Cir. 1994) (discussing application of 18 U.S.C. § 1001 and 18 U.S.C. § 2(b) to campaign contribution structuring).
77. 31 U.S.C.A. §§ 5311-5322 (West 2012). In CTR cases, non-bank defendants who conceal such transactions from the government by failing to report them are criminally liable when they have a legal duty to inform the bank or the government of their transactions. See 31 U.S.C. § 5324 (2006) (making it unlawful to cause, or attempt to cause, domestic financial institutions to not file required report, to file report that contains material omission or misstatement of fact, or to structure any transaction with one or more such domestic financial institutions for purpose of evading reporting requirements). Courts may infer a legal duty to report whenever the defendant's failure to do so might impede the bank's explicit statutory duty of reporting all currency transactions beyond an ordinary level. See United States v. Polychron, 841 F.2d 833, 836 (8th Cir. 1988) (finding customer, who was also bank president, liable under § 1001 for failure to file CTR).
78. See United States v. Wheeler, 247 F. App'x 558, 561 n.l (5th Cir. 2007) (explaining the purpose of the materiality requirement is to exclude prosecution of trivial falsehoods).
79. United States v. Gaudin, 515 U.S. 506, 511-14 (1995). The defendant in Gaudin was charged with making false statements on federal loan documents in violation of § 1001. Id. at 508.
80. United States v. Lupton, 620 F.3d 790, 806-07 (7th Cir. 2010) (holding that defendant's false statements to FBI agents were material under § 1001 even though they did not have any actual impact on the agency's investigation)
81. United States v. Chen, 324 F.3d 1103, 1104 (9th Cir. 2003) (holding that defendant's false statement that he entered the country only two months prior to filing an asylum application was material because it could have affected an investigation of illegal alien smuggling).
82. See United States v. Rosby, 454 F.3d 670, 673-74 (7th Cir. 2006) (explaining false statement may be material even if the hearer strongly suspects or knows that it is false)
83. United States v. McBane, 433 F.3d 344, 350-51 (3d Cir. 2005) (conceding that although the FBI agents were not influenced by defendant's false statements, those statements were material because they "were of a type that would naturally tend to influence a reasonable decisionmaker [sic]").
84. See United States v. Ross, 77 F.3d 1525, 1546 (7th Cir. 1996) (holding the fact that a statement was not required does not make that statement any less material).
85. See United States v. Campbell, 848 F.2d 846, 852 (8th Cir. 1988) (finding it unnecessary to prove statement intended to provoke pecuniary loss to government or gain to defendants).
86. See United States v. Johnson, 937 F.2d 392, 397-98 (8th Cir. 1991) (holding statement was not material where defendant contractor's price quote was based upon quantity figure Air Force supplied).
87. See United States v. Curran, 20 F.3d 560, 567-68 (3d Cir. 1994) (defining "intent" under § 1001 as "deliberate action with knowledge that the statements were not true" and explaining that the government is required to show that the misrepresentation was not made "innocently or inadvertently").
88. United States v. Gonsalves, 435 F.3d 64, 72 (1st Cir. 2006) (defining the required intent as making a statement knowing it was false or acting with a conscious disregard for the truth or with the purpose of avoiding learning the truth).
89. See United States v. Tracy, 108 F.3d 473, 477 (2d Cir. 1997) (finding defendant's false statements were intended to mislead or defraud United States Attorneys' Office).
90. But see United States v. Yermian, 468 U.S. 63, 73 (1984) (clarifying that an intent to deceive is not required by § 1001, only a knowing and willful misrepresentation).
91. See United States v. Jacobs, 212 F. App'x 683, 684 (9th Cir. 2006) ("The government need not prove a specific intent to deceive nor that [defendant] knew her conduct was unlawful.")
92. United States v. Ranum, 96 F.3d 1020, 1029 (7th Cir. 1996) (holding intent requires "only a purpose to do the forbidden act, not a specific intention or awareness that the act will mislead the Government").
93. See United States v. Shah, 44 F.3d 285, 289 n.7 (5th Cir. 1995) (finding § 1001 "does not require an intent to defraud - that is, the intent to deprive someone of something by means of deceit" (internal citations omitted))
94. Nilson Van & Storage Co. V. Marsh, 755 F.2d 362, 367 (4th Cir. 1985) (holding § 1001 requires only proof of intent to deceive and not intent to defraud).
95. See United States v. Sebaggala, 256 F.3d 59, 63 (1st Cir. 2001) (holding defendant's previous answers on customs forms and educational background were sufficient to conclude he made knowing false statements to customs officials)
96. United States v. Bardsley, 884 F.2d 1024, 1028-29 (7th Cir. 1989) (holding jury may infer intent where defendant postal clerk made false statements enabling him to steal funds, and lied to postal inspector to conceal illegal actions)
97. United States v. Gafyczk, 847 F.2d 685, 692 (11th Cir. 1988) (explaining that, where jury could infer intent, prosecution need not show proof of actual knowledge by defendant that false documents would be created from false statements and submitted to government).
98. See United States v. Gonsalves, 435 F.3d 64, 71-72 (1st Cir. 2006) (affirming that knowing a statement is false and acting with a reckless disregard for the truth are the same thing under § 1001)
99. United States v. Darrah, 119 F.3d 1322, 1328-29 (8th Cir. 1997) (holding taxpayer violated § 1001 in submitting false tax forms by displaying reckless disregard for the contents of the document)
100. United States v. London, 66 F.3d 1227, 1242 (1st Cir. 1995) (holding false statement was made "knowingly" when defendant demonstrated "reckless disregard" for the truth).
101. See United States v. Long, 977 F.2d 1264, 1271 (8th Cir. 1992) ("A willful blindness instruction is appropriate when the defendant asserts 'a lack of guilty knowledge,' but the evidence 'support[s] an inference of deliberate ignorance.'"
102. (quoting United States v. White, 794 F.2d 367, 371 (8th Cir. 1986)).
103. See United States v. Yermian, 468 U.S. 63, 73-74 (1984) (holding defendant can fulfill requisite intent for § 1001 without having knowledge of the jurisdiction of the federal government).
104. see also United States v. Atalig, 502 F.3d 1063, 1067 (9th Cir. 2007) (explaining § 1001 was amended to expand liability to all three branches of the federal government).
105. 348 U.S. 503, 504-06 (1955) (stating that § 1001 has a broad scope and that the legislative history of § 1001 did not indicate that statements to the legislative and judicial branches of the United States government should be exempt from prosecution under § 1001). The Supreme Court overruled Bramblett in Hubbard v. United States, 514 U.S. 695, 715 (1995)
106. see United States v. Jackson, 608 F.3d 193, 197 (4th Cir. 2010) ("The 1996 amendment, however, 'broadened the scope of the statute to include any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.'"
107. (quoting United States v. Atalig, 502 F.3d 1063, 1067 (9th Cir. 2007)).
108. See Buckhannon Bd. & Care Home, Inc. V. W. Va. Dep't. of Health & Human Res., 532 U.S. 598, 629 (2001) (approving the "natural, non-technical" definition of the word "jurisdiction" for purposes of § 1001 and declining to confine the definition to the narrower, technical meaning that was under review
109. in United States v. Rodgers. 446 U.S. 475, 479-80 (1984)).
110. See United States v. Blankenship, 382 F.3d 1110, 1136-37 (11th Cir. 2004) (finding an agency's jurisdiction - and therefore authority - is typically limited to those who are the recipients of that agency's federal funds).
111. United States v. Grenier, 513 F.3d 632, 638 (6th Cir. 2008)
112. (quoting United States v. Shafer, 199 F.3d 826, 829 (6th Cir. 1999)).
113. See United States v. Gilliland, 312 U.S. 86, 93 (1941) (discussing Congressional intent of jurisdictional element)
114. United States v. Elashyi, 554 F.3d 480, 497 (5th Cir. 2008) ("A false statement need not be shown to have actually influenced the government or caused it any pecuniary loss⋯.")
115. United States v. Taylor, 907 F.2d 801, 803 (8th Cir. 1990) (stating that Congress has amended § 1001 to "expandf] its scope beyond false statements causing pecuniary loss to the government")
116. abrogated on other grounds by Brogan v. United States, 522 U.S. 398, 408 (1998)
117. cf. United States v. Headdress, 18 F. App'x 525, 526 (9th Cir. 2001) ("The offense of making a false statement does not include monetary value as an element.").
118. See United States v. White, 270 F.3d 356, 363-64 (6th Cir. 2001) (holding § 1001 jurisdiction was proper over a defendant who made false statements to a county water district that was subject to EPA oversight)
119. See United States v. Yermian, 468 U.S. 63, 75 (1984) (holding that "proof of actual knowledge of federal agency jurisdiction is not required under § 1001")
120. United States v. Tatoyan, 474 F.3d 1174, 1182 n.ll (9th Cir. 2007) (explaining that government need not prove defendants knew United States government had jurisdiction over false statement).
121. United States v. Arcadipane, 41 F.3d 1, 5 (1st Cir. 1994) (holding that defendant's knowledge of whether Department of Labor had authority to request earnings information was irrelevant).
122. The Supreme Court historically has the scope of § 1001 broadly. See Brogan v. United States, 522 U.S. 398, 400 (1998) (stating that "§ 1001 covers any false statement - that is, a false statement of whatever kind")
123. United States v. Gilliland, 312 U.S. 86, 93 (1941) (warning against interfering with the intended function of § 1001 of protecting government from deception and finding "no reason why this apparent intention should be frustrated by construction"). The Court has also stated that defendants have no right to avoid answering even illegal questions by falsifying answers.
124. See Bryson v. United States, 396 U.S. 64, 72 (1969) ("Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them."). The Court has stated that § 1001 reaches false statements in any matter, including criminal investigations.
125. See United States v. Rodgers, 466 U.S. 475, 479 (1984) (interpreting "any matter" to include criminal investigations). In addition, the Court has ruled that § 1001 may be applied even when more specific statutes apply.
126. See United States v. Woodward, 469 U.S. 105, 108 (1985) (per curiam) (allowing separate punishments under both § 1001 and Customs' currency reporting statute).
127. See United States v. Aguilar-Portillo, 334 F.3d 744, 748-49 (8th Cir. 2003) (stating the "exculpatory no" exception "enjoyed a long pedigree as a judicially-created exception to the prohibitions of the False Statements Act⋯ ")
128. United States v. Fitzgibbon, 619 F.2d 874, 878 (10th Cir. 1980) (applying § 1001 "to statements not required by law, not under oath, and not in writing made in the exercise of routine governmental administrative duties and which do not involve the possibility of self-incrimination"), abrogated by Brogan, 522 U.S. at 408.
129. United States v. Whab, 355 F.3d 155, 160 (2d Cir. 2004)
130. (quoting United States v. Wiener, 96 F.3d 35, 37 (2d Cir. 1996)) (internal quotation marks omitted)
131. see United States v. Taylor, 907 F.2d 801, 806 (8th Cir. 1990) (finding the exception applied to defendant's false denial of any knowledge as to who had forged his wife's name on a Chapter 13 petition)
132. abrogated by Brogan v. United States, 522 U.S. at 408.
133. Paternostro v. United States, 311 F.2d 298, 302-05 (5th Cir. 1962), abrogated by Brogan, 522 U.S. at 408
134. United States v. Schnaiderman, 568 F.2d 1208, 1213 (5th Cir. 1978)
135. abrogated by United States v. Rodriguez-Rios, 14 F.3d 1040, 1050 (5th Cir. 1994).
136. But see United States v. Brandt, 546 F.3d 912, 917-18 (7th Cir. 2008) (declining to apply Ginsburg concurrence analysis and allow applicant to use "exculpatory no" defense)
137. United States v. Abbas, 208 F. App'x 552, 554 (9th Cir. 2006) (denying "exculpatory no" defense and citing Brogan, 552 U.S. 398, 408 (1998))
138. *4 (E.D. Mich. Aug. 24, 2006) (explaining that although Sixth Circuit has never denied the "exculpatory no" defense, it has also never successfully been applied).
139. See generally John Hasnas, Ethics and the Problem of White Collar Crime, 54 AM. U. L. REV. 579, 611-12 (2005) (stating that § 1001 may be violated "whenever an individual responds to a question from a federal investigator," and repeating critics' concern that § 1001 may be abused by overzealous prosecutors).
140. U.S. DEP'T OF JUST. U.S. ATTORNEYS' MANUAL § 9-42.160, available at http://www.justice.gov/usao/eousa/foia-reading-room/usam/title9/42mcrm.htm#9-42. 160 (last visited Oct. 8, 2012). The Manual states: The 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. Id.
141. See, e.g., United States v. Hatch, 434 F.3d 1, 4-5 (1st Cir. 2006) (denying ambiguity defense when defendant had previously understood the same form)
142. United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003) (holding the existence of some ambiguity in a falsely answered question will not shield the respondent from a perjury or false statement prosecution, but if a question is excessively vague, or fundamentally ambiguous, the answer may not, as a matter of law, form the basis of a prosecution for perjury or false statement).
143. See United States v. Mahaffy, 285 F. App'x 797, 798-99 (2d Cir. 2008) (explaining that whether defendant's response to government inspector's question was literally true and whether inspector's question was fundamentally ambiguous were questions of fact for the jury in prosecution for making a false statement)
144. United States v. Kosth, 257 F.3d 712, 721 (7th Cir. 2001) (finding defendant's submitted estimates to be false statements because he knew the Small Business Administration would assume they did not contain profit)
145. United States v. Dale, 991 F.2d 819, 832-33 (D.C. Cir. 1993) (holding defendants' statements on security clearance applications were not accurate or true under reasonable interpretation of applications).
146. But see United States v. Camper, 384 F.3d 1073, 1078 (9th Cir. 2004) (clarifying Ninth Circuit law as holding that "even when a question has two plausible meanings, where the evidence proves that the defendant understood one such meaning and answered falsely to it, a jury can convict for false statement")
147. United States v. Reilly, 33 F.3d 1396, 1415 (3d Cir. 1994) (rejecting argument that defendant should not be convicted for responding to ambiguous question).
148. United States v. Migliaccio, 34 F.3d 1517, 1525 (10th Cir. 1994)
149. see United States v. Gatewood, 173 F.3d 983, 988 (6th Cir. 1999) (holding evidence to be insufficient to support conviction because government failed to negate "any reasonable interpretation that would make the defendant's statement factually correct"
150. (quoting United States v. Gahagan, 881 F.2d 1380, 1383 (6th Cir. 1989)).
151. United States v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963).
152. See United States v. Woodward, 469 U.S. 105, 108 (1985) (per curiam) (allowing separate punishments under both § 1001 and Customs' currency reporting statute)
153. United States v. Turner, 130 F.3d 815, 817 (8th Cir. 1997) (stating that courts have regularly held that when a statute targets individual acts rather than a course of conduct as a whole, offenses charged with respect to separate dates, even though "of the same nature," are not the "same" offense for double jeopardy purposes).
154. see also United States v. Frazier, 53 F.3d 1105, 1111 (10th Cir. 1995) (allowing simultaneous conviction under § 1001 and 18 U.S.C. § 666)
155. United States v. Curran, 20 F.3d 560, 566 (3d Cir. 1994) (upholding convictions under § 1001 and 18 U.S.C. §§ 371 and 2(b))
156. United States v. Cruce, 21 F.3d 70, 75-76 (5th Cir. 1994) (holding prior § 1001 conviction did not bar prosecution for subsequent false statement at same location because no overlap of overt acts set out in indictments and because second indictment charged additional offenses and additional co-conspirator)
157. United States v. Merklinger, 16 F.3d 670, 677 (6th Cir. 1994) (stating false statements and forgery offenses are "entirely separate")
158. United States v. Bucey, 691 F. Supp. 1077, 1083 (N.D. Ill. 1988) (holding that a violation of § 1001 can properly be used as a predicate offense under 31 U.S.C. § 5322(b) notwithstanding the fact that the exact same conduct could violate both provisions).
159. See United States v. Blockburger, 284 U.S. 299, 304 (1932) (establishing general double jeopardy standard)
160. limited by Missouri v. Hunter, 459 U.S. 359 (1983) (standing for proposition that just because two criminal statutes proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes)
161. United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) (holding that because defendants' conspiracy, false entry, and false statement counts were all plainly separate statutory offenses involving distinct elements they did not pose any double jeopardy problem)
162. United States v. Avelino, 967 F.2d 815, 816-17 (2d Cir. 1992) (finding conviction under both § 1001 and § 542 violated Double Jeopardy Clause because every necessary element of one statute was required by the other and no congressional intent could be found to provide for cumulative punishment)
163. United States v. Hernandez, 572 F.2d 218, 219 (9th Cir. 1978) (holding new perjury charge violates Double Jeopardy Clause because jury must pass on truth of original statements under § 1001).
164. see also Illinois v. Vitale, 447 U.S. 410, 416 (1980) (emphasizing that offenses are not the same under the Blockburger test when one statute requires proof of a fact which the other statute does not).
165. See United States v. Batchelder, 442 U.S. 114, 123-24 (1979) (holding that, when an act violates more than one criminal statute, the government may prosecute under either statute so long as it does not discriminate against any class of defendants)
166. United States v. Shaw, 150 F. App'x 863, 873-74 (10th Cir. 2005) (finding that the government may prosecute under any applicable statute, even when one statute provides a harsher penalty)
167. United States v. Parsons, 967 F.2d 452, 456 (10th Cir. 1992) (explaining that even though defendant could have been prosecuted under Internal Revenue Code for filing false Internal Revenue Service forms that did not preclude him from being prosecuted under the false claims and false statements statutes)
168. United States v. Bilzerian, 926 F.2d 1285, 1299-1300 (2d Cir. 1991) (stating that it is permissible to charge defendant under § 1001 for false statements on SEC form despite existence of more specific securities statute with more stringent proof requirement)
169. United States v. Hopkins, 916 F.2d 207, 218 (5th Cir. 1990) (upholding prosecution of savings and loan officer under either § 1001 or election law for making false entries regarding campaign contributions, despite fact that election law was more specific and prescribes misdemeanor whereas § 1001 prescribes felony).
170. See United States v. Dunne, 324 F.3d 1158, 1161,1164-66 (10th Cir. 2003) (upholding principle that the statute of limitations begins to run when the false statement is submitted-not when received by the federal government - and that a § 1001 offense is not a "continuing offense" for limitations purposes)
171. United States v. Mubayyid, 567 F. Supp. 2d 223, 242 (D. Mass. 2008) (holding that a § 1001 offense is not a "continuing offense" for statute of limitations purposes and that each new affirmative act of concealment is a new criminal act, triggering a new limitations period), rev 'd in part, aff'd in part, 658 F.3d 35 (1st Cir. 2011).
172. See United States v. Whittington, 783 F.2d 1210, 1217 (5th Cir. 1986) (finding no grounds for conviction if trier-of-fact believed defendant had good faith belief due to ignorance or misinformation that lease was not binding obligation).
173. See United States v. Dominguez-Mestas, 929 F.2d 1379, 1384 (9th Cir. 1991) (holding defendant must prove his duress by a preponderance of evidence)
174. see also United States v. Zagari, 111 F.3d 307, 330 (2d Cir. 1997) (acknowledging viability of duress as § 1001 defense that allows downward departure when calculating sentence under the Federal Sentencing Guidelines, while rejecting its applicability of defense in present case).
175. See United States v. Graham, 60 F.3d 463, 467 (8th Cir. 1995) (announcing a "unitary harm rule" requiring a repeated false statement to additionally impair government function in order to be charged separately in an indictment)
176. United States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988) (upholding filing of two separate counts against defendant under § 1001 using a two-part test-(i) whether declarant was asked the same question and gave the same answer; and (ii) whether later false statement further impaired government operations).
177. But see United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005) (distinguishing Salas-Camacho by holding that a two-count indictment under § 1001 was multiplicitous where defendant's second denial did not "further impair the operations of the government").
178. See, e.g., United States v. Cardoen, 898 F. Supp. 1563, 1573 (S.D. Fla. 1995) (requiring proof of two elements for entrapment defense). The two elements are: (i) material government inducement of crime; and (ii) the defendant's lack of predisposition to make false statements. If both elements are proven, the burden of proof shifts to the government. Id.
179. See, e.g., United States v. Benkahla, 530 F.3d 300, 308 (4th Cir. 2008) (stating collateral estoppel did not bar two separate prosecutions under 18 U.S.C. §§ 2239A and 2239B and 18 U.S.C. §§ 1001(a), 1503, and 1623, because the two prosecutions depended on distinct ultimate facts).
180. See, e.g., United States v. Johnson, 139 F.3d 1359, 1361,1366 (11th Cir. 1998) (affirming the sufficiency and clarity of jury instructions concerning the defendant's good faith reliance defense to a § 1001 charge)
181. United States v. Anderson, 879 F.2d 369, 377 (8th Cir. 1989) (listing elements of test for good faith reliance)
182. United States v. Hansen, 772 F.2d 940, 947 (D.C. Cir. 1985) (affirming conviction of defendant under § 1001 for omissions in financial statements where jury had rejected defendant's assertion that attorneys advised him transactions were not reportable).
183. See, e.g., United States v. Westover, 107 F. App'x 840, 844 (10th Cir. 2004) (denying the application of the "active misleading" by a governmental agent defense in the defendant's § 1001 charge, describing that "[tjhere must be an 'active misleading' by the government agent, and actual reliance by the defendant. Further, the defendant's reliance must be reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation"
184. (quoting United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994))
185. United States v. White, 765 F.2d 1469, 1482 (11th Cir. 1985) (holding government's prior negotiations created estimates that were similarly over-inflated in the past, were not an assurance that the offense would go unpunished, and did "not make available the defense of 'active misleading' by the government")
186. United States v. Lichenstein, 610 F.2d 1272, 1280(5th Cir. 1980) (stating past failure of Customs Service to prosecute widespread abuse of "reasonable quantity" limitation on "vessel supplies" not found to have actively misled defendants who misrepresented goods as "vessel supplies")
187. abrogated on other grounds by United States v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010).
188. See, e.g., United States v. Jackson, 714 F.2d 809, 813 (8th Cir. 1983) (holding defendant failed to request "good faith" instruction on false statements made in reliance on industry custom and trial court's failure to give such an instruction was not plain error).
189. See, e.g., United States v. Ahmed, 472 F.3d 427, 432 (6th Cir. 2006) (stating defendant's "literally true" statements were not "facially true" and therefore violated § 1001). US.
190. See United States v. Sebaggala, 256 F.3d 59, 64 (1st Cir. 2001) (stating statute does not contain recantation defense).
191. Bryson v. United States, 396 U.S. 64, 72 (1969) ("A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.")
192. accord United States v. Rodriguez-Rios, 14 F.3d 1040, 1049-50 (5th Cir. 1994) (holding right to remain silent does not create right to respond to inquiry with outright lie).
193. United States v. Booker, 543 U.S. 220.245 (2005).
194. see also Kimbrough v. United States, 552 U.S. 85, 101 (2007) ("[W]hile [the federal sentencing statute] still requires a court to give respectful consideration to the Guidelines
195. see Gall v. United States, 128 S. Ct. 586, 597 (2007), Booker 'permits the court to tailor the sentence in light of other statutory concerns as well.' Booker, 543 U.S. at 245-46."). District court sentences are reviewed for reasonableness, and a sentence within the applicable Guidelines range is presumptively reasonable.
196. Rita v. United States, 551 U.S. 338, 345-46(2007).
197. see United States v. Ravelo, 370 F.3d 266, 267 (2d Cir. 2004) (affirming sentence of defendant under § 1001 and based on section 2B1.1(b)(1) loss table)
198. United States v. Miller, 316 F.3d 495, 498 (4th Cir. 2003) (affirming increased base offense level for mail fraud defendant who intended to cause loss by over-billing third-party medical insurers)
199. cf. United States v. Toussaint, 84 F.3d 1406, 1407-08 (11th Cir. 1996) (finding court could increase offense level if defendant intended monetary loss but did not actually cause monetary loss).
200. see United States v. Ebersole, 411 F.3d 517, 536 n.19 (4th Cir. 2005) (refusing to find error in the district court's application of the sentence enhancement provision of section 2B1.1(b)(12) because enhancement depends on the risk of death or serious bodily injury, not actual death or serious bodily injury)
201. cert, denied sub. nom Ebersole v. United States, 546 U.S. 1139 (2006).
202. But see United States v. Gibson, 409 F.3d 325, 339-40 (6th Cir. 2005) (affirming district court's decision not to increase sentence for conspiracy to make false statements because the government had not proven the defendants intended to create a risk of death or serious bodily harm, as required by section 2X1.1(a))
203. but cf. United States v. Zagari, 111 F.3d 307, 325 (2d Cir. 1997) (dismissing defendant's two-level enhancement for allowing landfill to contaminate water wells and recklessly risking serious bodily injury because the 1989 Guidelines for the applicable section, section 2F1.1(b)(4), was changed to no longer include a provision against reckless endangerment).
204. see United States v. Erpenbeck, 532 F.3d 423, 435-36 (6th Cir. 2008) (upholding enhancement under section 2B1.1(b)(15)(B) where fraudulent activity forced a bank to merge with another bank to prevent insolvency (judge erroneously citing section 2B1.1(b)(12)(B), which allows for an enhancement where the crime involves the use of a weapon))
205. see also United States v. Wiant, 314 F.3d 826, 830 (6th Cir. 2003) (upholding an enhancement even where the fraud caused minimal impact)
206. cf. United States v. Collins, 361 F.3d 343, 347 (7th Cir. 2004) (holding enhancement proper even where the financial institution was established solely for the purpose of defrauding investors where "fraudulent conduct caused [the financial institution] to become insolvent").
207. But see United States v. Sarno, 73 F.3d 1470, 1502 (9th Cir. 1995) (rejecting enhancement under former section 2F1.1(b)(6)(A) because defendant's actions, although totaling $11 million, represented a small fraction of financial institution's $500 million loss)
208. but cf. United States v. Miles, 360 F.3d 472, 481 (5th Cir. 2004) (holding that Medicare is not a "financial institution" for the purposes of the Sentencing Guidelines).
209. see United States v. Hussey, 254 F.3d 428, 432 (2d Cir. 2001) (upholding enhancement where defendants misrepresented themselves as members of a licensed stock brokerage company to investors)
210. United States v. Achiekwelu, 112 F.3d 747, 755 (4th Cir. 1997) (upholding district court's enhancement decision because defendant misrepresented himself as representative of Nigerian Finance Ministry, which is a "government agency" as specified in Guidelines).
211. see United States v. Cheek, 69 F.3d 231, 233 (8th Cir. 1995) (holding enhancement under former section 2F1.1(b)(3)(B) for abusing bankruptcy process did not constitute impermissible double-counting).
212. see United States v. Saldana, 427 F.3d 298, 310-11 (2005) (upholding upward adjustment in sentence where crime involving false statements was not of the type anticipated by the Guidelines)
213. United States v. Scott, 915 F.2d 774, 776-77 (1st Cir. 1990) (adjusting sentence upwards because actual dollar loss did not capture extent of harm of defendant's conduct).
214. But see United States v. Robertson, 324 F.3d 1028, 1031-32 (8th Cir. 2003) (holding that the district court's upward departure was not warranted because defendant's lying to a federal officer was not outside the "heartland" of § 1001).
215. see United States v. LeMaster, 54 F.3d 1224, 1232-33 (6th Cir. 1995) (affirming upward adjustment under section 5K2.9 where defendant made false statements to conceal attempted extortion).
216. See United States ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 227 (1st Cir. 2004) (explaining that Congress passed the FCA in 1863 to stop "the massive frauds perpetrated by large contractors during the Civil War"
217. (citing United States v. Bornstein, 423 U.S. 303, 309 (1976)). S. REP. NO. 99-345, at 8 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5273.
218. For a useful history of the FCA, see generally Patricia Meader & Elizabeth S. Warren, The False Claims Act: A Civil War Relic Evolves into a Modern Weapon, 65 TENN. L. REV. 455, 458-61 (1998).
219. See United States v. Gilliland, 312 U.S. 86, 93 (1941) (stating language and history of the FCA reveals Congress's intent "to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices")
220. United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 917 (4th Cir. 2003) (stating that "policing the integrity of the government's dealings with those to whom it pays money" is a primary purpose of the FCA).
221. See Cook Cnty. V. United States ex r$eal. Chandler, 538 U.S. 119, 133 (2003) ("The basic purpose of the 1986 amendments was to make the FC A a 'more useful tool against fraud in modern times. '" (quoting S. REP. NO. 99-345, at 2))
222. Minn. Ass'n of Nurse Anesthetists v. Allina Health Sys. Corp., 276 F.3d 1032, 1040-42 (8th Cir. 2002) ("The goals of the 1986 Amendments Act were (1) to encourage those with information about fraud against the government to bring it into the public domain; (2) to discourage parasitic qui tarn actions by persons simply taking advantage of information already in the public domain; and (3) to assist and prod the government into taking action on information that it was being defrauded.").
223. See Press Release, U.S. Dep't of Justice, Justice Department Recovers More Than $3 Billion in False Claims Act Awards and Settlements (Feb. 24, 2000) (stating government recoveries exceeded $3 billion by 2000, almost half of which was recovered in the last two and a half years), available at http://www.usdoj.gov/opa/pr/2000/February/079civ.htm.
224. See United States ex rel. Bain v. Ga. Gulf Corp., 386 F.3d 648, 655 (5th Cir. 2004) ("Congress desired the FCA to be given a broad reading and 'intended [it] to reach all types of fraud, without qualification, that might result in financial loss to the Government.'"
225. (citing United States v. Neifert-White Co., 390 U.S. 228, 232 (1968)). Congress subsequently "strongly endorse[d] this interpretation of the [A]ct" and amended the FCA so as to resolve any ambiguity. S. REP. NO. 99-345, at 18 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5284.
226. See Press Release, Dep't of Justice, Departments of Justice and Health and Human Services Team Up to Crack Down on Health Care Fraud (Nov. 5, 2010) available at http://www.justice.gov/opa/pr/2010/November/10-ag-1256.html.
227. See ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, ANNUAL REPORT OF THE DIRECTOR tbl. D-4 (2005) (noting variety of false claims prosecuted).
228. In 2009, 286 defendants were charged with false claims and services made against the government. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS, http://www.uscourts.gov/Statistics/ FederalIudicialCaseloadStatistics/FederalJudicialCase-loadStatistics2009.aspx (last visited Oct. 30, 2012). A large number of these defendants (247) were convicted and sentenced, and the vast majority (238) of those who were convicted pled guilty. Id.
229. See, e.g., United States v. Clark, 577 F.3d 273, 286 (5th Cir. 2009) (sustaining defendant's convictions for willfully aiding and assisting the preparation of false tax returns and presenting false claims for tax refunds)
230. United States v. Garth, 540 F.3d 766, 769 (8th Cir. 2008) (upholding FCA conviction of tax preparer who furnished filers with false W-2 forms and filed false tax returns claiming an undeserved refund)
231. abrogated by United States v. Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009)
232. United States v. AM, 344 F.3d 1002, 1003 (9th Cir. 2003) (upholding a criminal FCA conviction for filing fraudulent tax returns and claiming the resulting tax credits)
233. United States v. Barnes, 324 F.3d 135, 137 (3d Cir. 2003) (affirming the conviction of defendant who filed fraudulent claims for his clients)
234. United States v. Nash, 175 F.3d 429, 431 (6th Cir. 1999) (affirming conviction of defendant who falsely claimed that he was a nonresident alien, not subject to federal income taxes). For a discussion of issues relating to criminal tax fraud, see the Tax Violations article in this issue.
235. See, e.g., United States v. Valladares, 544 F.3d 1257, 1261 (11th Cir. 2008) (per curiam) (upholding conviction of pharmacy employee who engaged in a plan to bribe patients, which ended in the submission of false claims to Medicare)
236. United States v. Bolden, 325 F.3d 471, 478 (4th Cir. 2003) (upholding FCA convictions of nursing home directors who engaged in a complex scheme to defraud Medicare)
237. United States v. Freitag, 230 F.3d 1019, 1020-21 (7th Cir. 2000) (affirming conviction of ambulance service operator for submitting false claims to Medicare)
238. United States v. Gilliard, 133 F.3d 809, 811 (11th Cir. 1998) (upholding conviction of medical diagnostics corporation's chief executive officer for submitting false claims to Medicare and Medicaid). For a further discussion of Medicare and Medicaid fraud, see the Health Care Fraud article in this issue.
239. See, e.g., United States v. Silver, 245 F.3d 1075, 1077 (9th Cir. 2001) (affirming conviction for a product substitution scheme that involved resale of supplies to the Department of Defense)
240. United States v. Glymph, 96 F.3d 722, 724 (4th Cir. 1996) (upholding conviction for knowingly supplying the Department of Defense with parts that did not conform with purchase order specifications).
241. See, e.g., Commercial Contractors, Inc. V. United States, 154 F.3d 1357, 1375 (Fed. Cir. 1998) (holding that contractor on flood control project submitted numerous false claims for additional payment)
242. United States v. Upton, 91 F.3d 677, 683 (5th Cir. 1996) (affirming roofing contractor's conviction for false claim to Air Force for reimbursement of unpaid bond premiums).
243. See, e.g., United States v. Leahy, 82 F.3d 624, 628 (5th Cir. 1996) (affirming conviction of roofing company owner who billed the Veterans Administration in the form of a progress payment although little work had been performed)
244. United States v. Boutte, 13 F.3d 855, 857 (5th Cir. 1994) (affirming conviction of defendant who falsely claimed to have provided accounting services to minority businesses in order to receive Department of Commerce funds).
245. See United States v. Newell, 658 F.3D 1 (1st Cir. 2011) (affirming conviction for submission of forms to HHS for payment of claims that were not authorized by terms of grant)
246. United States v. Fullwood, 342 F.3d 409, 410 (5th Cir. 2003) (upholding a conviction of defendant farmer who made fraudulent crop disaster claims)
247. United States v. Randazzo, 80 F.3d 623, 626 (1st Cir. 1996) (affirming conviction for selling shrimp that had been altered to increase weight and cost to the Department of Defense).
248. see United States v. Allen, 13 F.3d 105, 107-09 (4th Cir. 1993) (holding charges of violating both 18 U.S.C. § 287 and 18 U.S.C. § 1001 were not multiplicitous because each statute covered a distinct offense).
249. see also United States v. Bolden, 325 F.3d 471, 494 (4th Cir. 2003) (discussing the knowledge requirement for a criminal FCA claim)
250. United States v. Syme, 276 F.3d 131, 142 n.3 (3d Cir. 2002) (listing essential elements of FCA claim).
251. See Li v. Ashcroft, 389 F.3d 892, 896 (9th Cir. 2004) (holding the claim does not need to result in actual loss as long as the defendant presented a fraudulent claim
252. (citing United States v. Causey, 835 F.2d 1289, 1292 (9th Cir. 1987)).
253. The District of Columbia Circuit has construed the term "claim" narrowly by using the number of reimbursement forms submitted by defendant, and not the total number of charges on each form. See United States v. Krizek, 111 F.3d 934, 939-40 (D.C. Cir. 1997) (stating sanctions should be based upon eleven forms defendant submitted, not the 1149 charges contained in those eleven forms).
254. The term "claim" means: [A]ny request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that⋯ is presented to an officer, employee, or agent of the United States; or⋯ is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government's behalf or to advance a Government program or interest, and if the United States Government⋯ provides or has provided any portion of the money or property requested or demanded; or⋯ will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded; and⋯ does not include requests or demands for money or property that the Government has paid to an individual as compensation for Federal employment or as an income subsidy with no restrictions on that individual's use of the money or property⋯. 31 U.S.C. § 3729(b)(2) (2006 & Supp. 2009). False claims against the United States are construed broadly. See, e.g., United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1170-71 (9th Cir. 2006) (stating that in amending the FCA in 1986, "Congress emphasized that the scope of false or fraudulent claims should be broadly construed" to include "each and every claim submitted under a contract, loan guarantee, or other agreement which was originally obtained by means of false statements or other corrupt or fraudulent conduct, or in violation of any statute or applicable regulation"
255. United States ex rel. Wilkins v. N. Am. Const Corp., 173 F. Supp. 2d 601, 619 n.8 (S.D. Tex. 2001) (asserting the 1986 amendments to the FCA extended the definition of "claim" to include "any request or demand⋯ made to a contractor, grantee or other recipient if the United States government provides any portion of the money property which is requested or demanded⋯").
256. See United States v. Duncan, 816 F.2d 153, 155 (4th Cir. 1987) (holding that using a voucher to credit account against previously advanced funds constitutes a "claim").
257. see United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 513 n.12 (3d. Cir. 2007) ("Reverse false claims are centered around an alleged fraudulent effort to reduce a liability owed to the government rather than to get a false or fraudulent claim allowed or paid.")
258. see also United States ex rel. Ervin & Assoc, v. Hamilton, 370 F. Supp. 2d 18, 46-48 (D.D.C. 2005) (holding government contractor's knowingly false accounting and subsequent purchase of government property is sufficient to state a "reverse false claim" under FCA).
259. The circuits have split on the implied (or false) certification principle. See, e.g., United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d at 1171 (stating that two doctrines have emerged "that attach potential False Claims liability to claims for payment that are not explicitly and/or independently false: (1) false certification (either express or implied); and (2) promissory fraud")
260. Mikes v. Straus, 274 F.3d 687, 700 (2d Cir. 2001) (holding that the lower court should have found a medical provider violated the FCA via implied certification, but limiting its use to circumstances in which the underlying statute expressly states the provider must comply in order to be paid)
261. United States ex rel. Siewick v. Jamieson Sei. & Eng'g, Inc., 214 F.3d 1372, 1376 (D.C. Cir. 2000) (stating that "all courts of appeals to have addressed the matter" have held that implied certification can only be used in cases where payment is conditioned on that certification)
262. Shaw v. AAA Eng'g & Drafting, Inc., 213 F.3d 519, 532 (10th Cir. 2000) ("Not all courts have embraced the theory that an FCA suit may be based on an implied certification.")
263. United States ex rel. Holder v. Special Devices, Inc., 296 F. Supp. 2d 1167, 1175 (CD. Cal. 2003) (applying implied certification theory to find defendant liable under the FCA).
264. E.g., Lamb Eng'g & Const. Co. V. United States, 58 Fed. CL. 106, 111 (2003) (asserting the FCA attaches liability "not to the underlying fraudulent activity or to the government's wrongful payment, but to the 'claim for payment,'" regardless of whether government was induced to suffer any loss
265. (citing United States v. Rivera, 55 F.3d 703, 709 (1st Cir. 1995)).
266. E.g., United States v. Logan, 250 F.3d 350, 357-59 (6th Cir. 2001) (finding false claim made to Federal Housing Administration of the Department of Housing and Urban Development violated § 287)
267. *4 (M.D. Ha. Oct. 5, 2007) (asserting a false claim made to BHA constituted a false claim to HUD because a state agency ultimately funded by the Federal government is also an "agency," under the Act "so long as the origin of the funds used to make payment is the federal government").
268. See supra note 147 (listing § 287 cases involving false tax refund claims against the Internal Revenue Service). See generally United States v. Allen, 242 F. App'x 303 (6th Cir. 2007)
269. United States v. Brisson, 448 F.3d 989 (7th Cir. 2006).
270. See, e.g., United States v. Glymph, 96 F.3d 722, 724 (4th Cir. 1996) (affirming conviction for selling the Department of Defense parts that failed to conform to specifications)
271. cf. Rainwater v. United States, 356 U.S. 590, 592 (1958) (finding Commodity Credit Corporation, a wholly owned government corporation, "is a part of the 'Government of the United States' for purposes of the False Claims Act").
272. See generally United States v. Najjar, 283 F.3d 1307-09, (11 th Cir. 2002) (holding that filing false and fraudulent claims to United States Department of Defense in connection with the Civilian Health & Medical Program of the Uniformed Services violated FCA).
273. E.g., United States ex rel. Branch Consultants, L.L.C. V. Allstate Ins. Co., 782 F. Supp. 2d 248 (E.D. La. 2009) (finding a false claim made to the National Flood Insurance Program in the aftermath of Hurricane Katrina constituted a false claim to FEMA).
274. In Hubbard v. United States, the Supreme Court held that a federal court is neither a "department" nor an "agency" within 18 U.S.C. § 1001, the statute prohibiting false statements to the government. 514 U.S. 695, 715 (1995). Congress subsequently overruled Hubbard in 1996 by enacting the False Statements Accountability Act of 1996, Pub. L. No. 104-292, §§ 1-2, 110 Stat. 3459 (1996), amending 18 U.S.C. § 1001 by applying the false statements statute to executive, legislative, and judicial branches of the United States government. It remains to be seen whether 18 U.S.C. § 287 will similarly be applied to claims submitted to the judiciary branch.
275. See United States v. Montoya, 716 F.2d 1340, 1343 (10th Cir. 1983) ("[Section] 287 must be read to include causing a false claim to be presented to the government. Such a reading is consonant with the history of the statute, the surrounding statutory provisions and case law construing the statute."); S. REP. NO. 99-345, at 10 (1986) ("[A] false claim is actionable although the claims or false statements were made to a party other than the Government, if the payment thereon would ultimately result in a loss to the United States."), reprinted in 1986 U.S.C.C.A.N. 5266. 5275
276. see also United States v. Ebersole, 411 F.3d 517, 538 (4th Cir. 2005) (Michael, J., concurring in part and dissenting in part) (stating that when a private intermediary submits claims on behalf of defendants to government agency, the intermediary's act was part of the conduct constituting the offense)
277. United States ex rel Schmidt v. Zimmer, Inc., 386 F.3d 235, 242-43 (3d Cir. 2004) (finding sub-contractor whose scheme was a substantial factor in the contractor's submission of a false claim could be found to have caused the submission)
278. United States v. Mackby, 261 F.3d 821, 826 (9th Cir. 2001) (finding FCA claim actionable for instructing clinic's billing service to submit false claims to be submitted)
279. United States ex rel. Branson v. Narrows Health & Wellness, LLC, 469 F. Supp. 2d 1048, 1053 (N.D. Ala. 2006) ("Liability under the False Claims Act may⋯ attach if a fraudulent claim is presented to a non-government intermediary, and the intermediary subsequently presents the claim to an officer or employee of the United States government.").
280. See United States v. Bolden, 325 F.3d 471, 494 n.28 (4th Cir. 2003) ("Importantly, the submission of a false claim to a state agency to obtain federal funds that were provided to the state falls within the parameters of § 287."
281. (citing United States v. Litdefield, 840 F.2d 143, 151 (1st Cir. 1988))
282. *4 (M.D. Ha. Oct. 5, 2007) (asserting a false claim made to BHA constituted a false claim to HUD because a state agency ultimately funded by the Federal government is also an "agency," under the FCA "so long as the origin of the funds used to make payment is the federal government").
283. United States v. Peterson, 223 F.3d 756, 758 (8th Cir. 2000) (affirming conviction under § 287 of X-ray company officers who submitted inflated charges to Arkansas Blue Cross and Blue Shield for services provided to Medicare beneficiaries).
284. See United States v. Blecker, 657 F.2d 629, 633-34 (4th Cir. 1981) (affirming conviction for submitting invoices to contractor, knowing claims would be presented to General Services Administration for reimbursement)
285. Riley Const. Co. V. United States, 65 Fed. CI. 264, 268 (2005)
286. (citing Commercial Contractors, Inc. V. United States, 154F.3d 1357, 1371 (Fed. Cir. 1998) (stating that contractors are liable if they have "acted with the requisite knowledge and the corresponding claim was false")).
287. *4 (D. Conn. Mar. 27, 1997) (holding liable a subcontractor who caused a general contractor to submit a false claim to the government, stating that while "the typical False Claims Act case is brought by the Government against a party that direcdy submits a false claim to the government," a party violates the Act by submitting such a claim to the government '"without regard to whether tiiat person had direct contractual relations with the government'"
288. (quoting Pickens v. Kanawha River Towing, 916 F. Supp. 702, 706 (S.D. Ohio 1996))
289. see also United States v. Modey, 940 F.2d 1079, 1082 (7th Cir. 1991) (finding preparer of income tax returns violated § 287, although he did not actually submit claim).
290. See, e.g., United States v. Litdefield, 840 F.2d 143, 151 (1st Cir. 1988) (affirming judgment that false claims submitted to state programs for which the federal funding ranged from six percent to thirty three and a third percent violated § 287 "even if federal funds accounted for only part of the claims").
291. See United States v. Gieger, 190 F.3d 661, 666 (5th Cir. 1999) (noting courts have found that because the three terms are stated in the disjunctive, three kinds of claims may be submitted in violation of § 287)
292. United States v. Hercules, Inc., 929 F. Supp. 1418, 1426 (D. Utah 1996) ("The juxtaposition of the three adjectives 'false, fictitious, or fraudulent' probably resulted from a draftsman's desire to encompass the varying ways in which fraud is defined.").
293. See United States v. Rogan, 517 F.3d 449, 452 (7th Cir. 2008) (stating that for the purposes of the FCA, falsity element is determined by an objective standard)
294. Kercher v. United States, 409 F.2d 814, 818 (8th Cir. 1969) (finding falsity must be determined in view of facts and circumstances attending presentation)
295. United States ex rel. Doe v. DeGregorio, 510 F. Supp. 2d 877, 885 (M.D. Fla. 2007) (stating that in evaluating probable validity, courts consider the totality of the circumstances)
296. cf. United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1018 (7th Cir. 1999) (noting that mistakes, imprecise statements, and disputes over legal interpretations are "not false").
297. E.g., United States ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 378 (5th Cir. 2004) (finding a certifying doctor, who is not the doctor who rendered or personally supervised the services, subject to liability for a false claim)
298. United States v. Custodio, 39 F.3d 1121, 1122-23 (10th Cir. 1994) (affirming conviction of obstetrician-gynecologist who billed for procedures he did not supervise).
299. E.g., Shaw v. AAA Eng'g & Drafting, Inc., 213 F.3d 519, 530-31 (10th Cir. 2000) (affirming that submitting false work orders to the Tinker Air Force Base can constitute a false claim against the government)
300. United States v. Erickson, 75 F.3d 470, 473 (9th Cir. 1996) (affirming conviction for over-billing the Department of Health and Human Services for nurse anesthetists' activities).
301. E.g., United States v. Lott, 630 F. Supp. 611, 612 (E.D. Va. 1986) (convicting nurse who misrepresented herself as trained and licensed in Virginia).
302. See United States v. Catton, 89 F.3d 387, 392 (7th Cir. 1996) (ordering new trial for farmer who allegedly submitted false claims to FDIC on grounds that government must prove defendant knew claim was false)
303. United States v. Barker, 967 F.2d 1275, 1279 (9th Cir. 1991) (overturning conviction for submission of certain false claims and accepting defense that his claims were not false).
304. E.g., United States v. Campbell, 845 F.2d 1374, 1382 (6th Cir. 1988) (holding criminally liable a physician who submitted a Medicare claim to the government through an insurer, where the physician knew that the treatments performed were unnecessary or non-therapeutic)
305. United States v. Johnson, 410 F.2d 38, 44 (8th Cir. 1969) (rejecting defendant's argument that his contract compliance claims were merely statements of what he believed the contract between him and the government entitled him to receive payment)
306. Imperial Meat Co. V. United States, 316 F.2d 435, 440 (10th Cir. 1963) (finding meat supplier who delivered substandard beef to Army guilty under § 287)
307. United States v. Inc. Vill. of Island Park, 888 F. Supp. 419, 439 (E.D.N.Y. 1995) (holding that the FCA is violated "not only by a person who makes a false statement or a false record to get the government to pay a claim, but also by one who engaged in a fraudulent course of conduct that causes the government to pay a claim for money").
308. 18 U.S.C. § 287 (2006). See United States v. Barker, 967 F.2d 1275, 1278-79 (9th Cir. 1991) (stating that to be false, a claim must not only be inaccurate but "consciously so")
309. see also United States v. Hixon, 987 F.2d 1261, 1267-68 (6th Cir. 1993) (holding absent evidence that claimant made a claim that was knowingly false as to his self-employed status, claimant could not be held in violation of FCA) (emphasis added).
310. See United States ex rel. Hefner v. Hackensack Univ. Med. Ctr., 495 F.3d 103, 109 (3d Cir. 2007) (stating the FCA defines "knowing" as "actual knowledge," "deliberate ignorance," or "reckless disregard of the truth or falsity of information in the defendant's claim to the government," and explaining that "no proof of specific intent to defraud is required")
311. United States ex rel. Hochman v. Nackman, 145 F.3d 1069, 1073 (9th Cir. 1998) (holding requisite element is the "knowing presentation of what is known to be false," which does not require a representation to be scientifically untrue)
312. Commercial Contractors, Inc. V. United States, 154 F.3d 1357, 1362 (Fed. Cir. 1998) (holding that a contractor is "deemed to have known that a claim it submitted was false if it had actual knowledge of falsity of the claim or if it acted in deliberate ignorance or reckless disregard of the truth or falsity of the claim")
313. United States v. Krizek, 111 F.3d 934, 942 (D.C. Cir. 1997) (holding court must conclude defendant acted with reckless disregard as to falsity of submissions).
314. United States v. Catton, 89 F.3d 387, 392 (7th Cir. 1996) (holding § 287 does not require specific intent to defraud government). Nevertheless, Seventh Circuit precedent falls on both sides of the circuit split. Compare id. ("It is implicit in the filing of a knowingly false claim that the claimant intends to defraud the government.")
315. United States v. Nazon, 940 F.2d 255, 260 (7th Cir. 1991) (holding intent to defraud is an element of § 287). The Catton court explained that those earlier cases, which required specific intent to defraud, had made "assumptions, not holdings." Catton, 89 F.3d at 392.
316. United States v. Bolden, 325 F.3d 471, 494 (4th Cir. 2003)
317. (quoting United States v. Maher, 582 F.2d 842, 847 (4th Cir. 1978)).
318. See United States v. Montoya, 716 F.2d 1340, 1345 (10th Cir. 1983) (rejecting defense of ignorance of involvement of federal monies in state project in light of defendant's intent to deceive)
319. see also United States ex rel. Oliver v. Parsons Co., 195 F.3d 457, 462 (9th Cir. 1999) (reasoning that even a "reasonable interpretation" of a regulation might not preclude a finding of falsity).
320. See United States v. Gumbs, 283 F.3d 128, 131 (3d Cir. 2002) ("[T]o be convicted of willfully causing an intermediary to present a false claim to a federal department, a defendant must at least know that he is causing the intermediary to present a false claim to someone⋯.").
321. Commercial Contractors, Inc. V. United States, 154 F.3d 1357, 1362 (Fed. Cir. 1998) (finding that a contractor is "deemed to have known a claim it submitted was false if it had actual knowledge of falsity of the claim or if it acted in deliberate ignorance or reckless disregard of the truth or falsity of the claim")
322. United States v. Holloway, 731 F.2d 378, 381 (6th Cir. 1984).
323. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 785 (4th Cir. 1999) (stating that "deliberate ignorance" is an element of the definition of "knowingly")
324. United States v. Hooshmand, 931 F.2d 725, 732-35 (11th Cir. 1991) (holding that evidence demonstrating defendant should have known and understood claim procedures and terms was relevant to prove defendant's intent to commit crime).
325. See United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1175 (9th Cir. 2006) (holding that relators properly alleged a false statement claim by including "the specific intent to deceive the government" in their claim)
326. United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1265 (9th Cir. 1996) (explaining request for payment containing falsities was made with scienter, for which knowledge and a specific intent to deceive must exist).
327. The Ninth Circuit has also held that knowledge of the law and inducing others to file false tax returns, regardless of whemer the taxpayers knew they were false, satisfies the knowledge requirement of the statute. See United States v. Mackby, 339 F.3d 1013, 1017 (9th Cir. 2003) ("[W]hat constitutes the offense [under the False Claims Act] is not intent to deceive but knowing presentation of a claim that is either 'fraudulent' or simply 'false.'"
328. (citing United States ex rel. Hagood v. Sonoma Cnty. Water Agency, 929 F.2d 1416, 1421 (9th Cir. 1991)).
329. Wang v. FMC Corp., 975 F.2d 1412, 1421 (9th Cir. 1992) (finding no intent to deceive when the defendant merely submitted a claim that included minimal mathematical errors an engineer had made and of which the defendant was unaware).
330. See United States v. Bolden, 325 F.3d 471, 494 (4th Cir. 2003) ("Indeed, 'the question of one's intent is not measured by a psychic reading of [the defendant's] mind but by the surrounding facts and circumstances⋯.'"
331. (quoting United States v. Larson, 581 F.2d 664, 667 (7th Cir. 1978)).
332. United States ex rel. Hagood v. Sonoma Cnty. Water Agency, 929 F.2d 1416, 1421 (9th Cir. 1991) ("[W]hat constitutes the offense is not intent to deceive but knowing presentation of a claim that is either 'fraudulent' or simply 'false.'")
333. United States v. Montoya, 716 F.2d 1340, 1345 (10th Cir. 1983) (rejecting defense of ignorance of involvement of federal monies in state project in light of defendant's intent to deceive)
334. cf. United States v. Montemayor, 712 F.2d 104, 107-09 (5th Cir. 1983) (stating that knowledge that federal agency was involved is not an element of § 1001 offense of making false statements in matters within the jurisdiction of federal agencies).
335. But see United States v. Gumbs, 283 F.3d 128, 131 (3d Cir. 2002) (reversing a conviction because defendant did not know that local government contract was funded by the federal government).
336. See United States v. Nash, 175 F.3d 429, 431 (6th Cir. 1999) (affirming conviction of defendant who claimed that in good faith he concluded he was a citizen of the "Republic of Michigan" and therefore, a nonresident alien not subject to federal income taxes).
337. See Hindo v. Univ. of Health Scis./The Chi. Med. Scn., 65 F.3d 608, 613 (7th Cir. 1995) ("Innocent mistakes⋯ are not actionable under this section.")
338. United States v. Austin, 774 F.2d 99, 103 (5th Cir. 1985) (holding that good faith reliance on accountant is defense)
339. But see United States v. Dorotich, 900 F.2d 192, 194 (9th Cir. 1990) (holding where trial court gives jury proper instructions about intent required for guilt, failure to give specific instructions "on good faith reliance upon expert advice" does not constitute reversible error).
340. see United States v. Ursery, 518 U.S. 267, 279-84 (1996) (reiterating narrowness of Halper holding, and holding that it does not apply to civil forfeitures)
341. Peter J. Henning, Precedents in a Vacuum: The Supreme Court Continues to Tinker with Double Jeopardy, 31 AM. CRIM. L. REV. 1, 48-52 (1993) (criticizing Halper decision).
342. Hudson, 522 U.S. at 104. The Supreme Court further explained that the mere presence of a deterrent purpose, without more, was insufficient to render such sanctions "criminal." Id. at 105. The Hudson Court did acknowledge that the Eighth Amendment proscription of excessive fines may provide an independent constitutional basis for challenging large civil penalties, despite the Court's rejection of Halper. Id; see Joan Biskupic, Supreme Court Rules That Civil Fines Don't Bar Later Criminal Prosecution, WASH. POST, Dec. 11, 1997, at A6 (discussing impact of Hudson decision). Even prior to Hudson, district courts were reluctant to apply punitive civil penalties when the government could show that the penalty was reasonable compensation for its loss, despite the Halper rule. See generally United States v. Fliegler, 756 F. Supp. 688, 697 (E.D.N.Y. 1990)
343. Justin P. Tschoepe, A Fraud Against One Is Apparently a Fraud Against All: The Fraud Enforcement and Recovery Act's Unprecedented Expansion of Liability Under the False Claims Act, 47 Hous. L. REV. 741, 747-54 (2010)
344. see also United States v. Nardone, 782 F. Supp. 996, 997-98 (M.D. Pa. 1990) (holding defendant found guilty of violating § 287, whether by jury verdict or guilty plea, is precluded from contesting the issues determined by those guilty verdicts in subsequent action under the civil false claims statute).
345. United States v. Booker, 543 U.S. 220, 245 (2005).
346. see also id. § 5E 1.2(c)(3) (listing minimum and maximum fines for each offense level). See generally United States, v. Gallegos, 975 F.2d 710, 713 (10th Cir. 1992) (increasing a base offense level from six to nine for a loss of $ 1.25 million, of which $211, 482 had been repaid).
347. see also United States v. Rajwani, 476 F.3d 243, 246 (5th Cir. 2007) (applying a ten-level increase under U.S.S.G. MANUAL section 2B 1.1 (b)(1)(F) because the total loss involved was $137, 077.23).
348. see also United States v. Cornelius, 202 F. App'x 437, 438 (11th Cir. 2006)
349. See generally United States v. Bennett, 9 F. Supp. 2d 513 (E.D. Pa. 1998) (holding that receipt of more than $1 million in gross receipts from offense which affected a financial institution warranted a four-level increase from base offense level).
350. see United States v. Malol, 476 F.3d 1283, 1293-94 (11th Cir. 2007) (increasing defendant's base offense level by two under U.S.S.G. MANUAL section 2B 1.1 (b)(7)(C), which prescribes such an increase for "a violation for any prior, specific judicial or administrative order, injunction, decree, or process not addressed elsewhere in the guidelines;" however, a hearing was needed under § 554 of Administrative Procedure Act because the warning was not a final adjudication).
351. see also United States v. Carrigan, 778 F.2d 1454, 1456 n.2 (10th Cir. 1985) (stating that § 287 provides for a maximum penalty of a $10, 000 fine and five years' imprisonment for each violation)
352. Swepston v. United States, 289 F.2d 166, 169 (8th Cir. 1961) (finding a separate violation for each false claim).
353. see, e.g., Corey v. United States, 375 U.S. 169, 171 n.3 (1963) (reasoning that since Corey was convicted of seventy-five counts under § 287, and each offense under the statute is punishable by a prison term of up to five years, the petitioner would be sentenced to 375 years in prison if the maximum sentence was applied, and explaining that "[s]uch a sentence, if actually imposed for the substantive offenses in question, would obviously raise a serious issue under the Eighth Amendment of the Constitution," and so grouping is necessary).
354. United States v. Smith, 105 F. App'x 506, 507-08 (4th Cir. 2004) (grouping the defendant's multiple counts into distinct groups).
355. United States v. Hargrove, 478 F.3d 195, 199 (4th Cir. 2007) (stating that "once a court groups appropriate counts and determines the initial combined offense level for the grouped counts, it then decides whether any adjustments to the offense level⋯ should be made for the grouped offense")
356. United States v. Alii, 344 F.3d 1002, 1009 (9th Cir. 2003) (explaining the sentencing guidelines for a person convicted of multiple counts of a violation of the FCA).
357. Vt. Agency of Natural Res. V. United States ex rel Stevens, 529 U.S. 765, 784 (2000)
358. see United States v. Hudson, 522 U.S. 93, 100-01 (1997) (holding that sanctions need not be "solely" remedial to avoid implicating the Double Jeopardy Clause).
359. But see Cook Cnty. V. United States ex rel. Chandler, 538 U.S. 119, 130 (2003) (holding that treble damages have a compensatory aspect, serving remedial purposes in addition to punitive objectives).
360. e.g., United States ex rel. McKenzie v. Bellsouth Telecomms., Inc., 123 F.3d 935, 938-43 (6th Cir. 1997) (barring qui tarn action because material had been publicly disclosed in newspaper reports). The court must dismiss a suit that does not meet the public disclosure standards, unless the government opposes such a dismissal. 31 U.S.C. § 3730(e)(4) (2006 & Supp. 2010). A person is an original source if she "prior to a public disclosure⋯ has voluntarily disclosed to the [g]overnment the information on which allegations or transactions in a claim are based," or "has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the [government." Id. § 3730(e)(4)(B) (amending the standard for original source to make it easier to satisfy).
361. See United States v. Bank of Farmington, 166 F.3d 853, 859 (7th Cir. 1999) (stating that whether a qui tarn relator is an original source is immaterial unless there has been public disclosure).
362. For example, qui tarn plaintiffs received $8.7 million of a $55 million settlement with Bicoastal Corp., which had inflated cost estimates for flight simulator contracts with the Department of Defense. See Fraud, House Passes Bill to Allow Federal Employees to File Qui Tarn Suits, 58 FED. CONT. REP. (BNA) NO. 7, at 5 (Aug. 1, 1992).
363. While in the past qui tarn suits have primarily targeted the defense industry, there is an increasing trend towards using qui tarn suits in the health care industry. The largest recovery in the history of the FCA occurred in February 1997 when SmithKline Beecham Clinical Laboratories Inc., Philadelphia, paid the government $325 million to settle a qui tarn suit that stemmed from fraudulent Medicare and Medicaid billing for laboratory tests. See Not What the Doctor Ordered: A Record Whistleblower Suit; Philadelphia Venue Strikes Again, U.S. Bus. Lrno., June 1997, at 13. See generally Adam G. Snyder, The False Claims Act Applied to Health Care Institutions: Gearing up for Corporate Compliance, 1 DEPAUL J. HEALTH CARE L. 1 (1996) (describing application of FCA to health care fraud). A prevailing qui tarn plaintiff is also entitled to reasonable expenses, attorneys' fees, and costs. 31 U.S.C. § 3730(d)(1)-(2) (2006 & Supp. 2010).
364. The Court has a "longstanding interpretive presumption that 'person' does not include the sovereign." Vt. Agency of Natural Res. V. United States ex rel. Stevens, 529 U.S. 765, 797 (2000). The Supreme Court has observed generally that subjecting a state to suit for damages under federal law would fundamentally alter the federal-state balance. See U.S. CONST, amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State⋯.")
365. see, e.g., Alden v. Maine, 527 U.S. 706, 757 (1999) (holding that subjecting states to suits in state court under the Fair Labor Standards Act is a violation of Eleventh Amendment state sovereign immunity)
366. Coll. Sav. Bank v. Fla. Pre-Paid Post-Secondary Educ. Expense Bd., 527 U.S. 666, 691 (1999) (holding suits against states based on federal patent law are barred by Eleventh Amendment state sovereign immunity).
367. See Cook Cnty. V. United States ex rel. Chandler, 538 U.S. 119, 129 (2003) (affirming the Seventh Circuit's holding that, unlike states, municipalities are not immune from qui tarn actions, thus resolving a Circuit split on the issue).
368. See Press Release, Dep't of Justice, Justice Department Recovers Nearly $5 Billion in False Claims Cases in Fiscal Year 2012 (Dec. 4, 2012). Since January 2009, the government has recovered $13.3 billion under the False Claims Act.