[1] For Part One, see Paul Larkin & John-Michael Seibler, Time to Prune the Tree: The Need to Repeal Unnecessary Criminal Laws, Heritage Foundation Legal Memorandum No. 173 (Feb. 25, 2016), http://bit.ly/2el9bpQ (arguing that “the federal criminal code is long overdue for a ‘spring cleaning.’”). For Part Two, see Paul Larkin & John-Michael Seibler, Time to Prune the Tree, Part 2: The Need to Reassess the Federal Fraud Laws, Heritage Foundation Legal Memorandum No. 185 (Oct. 19, 2016), http://bit.ly/2ebgbMb.

[2] We exclude elected officials from the above list because it is unfair to compare professionals with amateurs. For an example of a whopper told by someone well practiced in the art, see Paul Larkin, Jr., Essay: Philemon, Marbury, and the Passive-Aggressive Assertion of Legal Authority, 29 BYU J. Pub. L. 241, 260–62 (2014) (“Consider the repeated statements that President Obama made before and after passage of the Patient Protection and Affordable Care Act that the law would cause no one to lose insurance coverage…. Yet, as insured parties began to lose their health care plans in 2012 and 2013, it became undeniable that the President’s assurances, to be polite, were fibs. The public likely shares that conclusion, even if most people believe that it is an impolitic point to make out loud. In fact, after dissembling at first even President Obama eventually admitted—in what was surely the understatement of 2013—that Obamacare has not worked out precisely in the manner that he repeatedly assured the public it would. In President Obama’s own words, ‘[t]here is no doubt that the way I put that forward unequivocally ended up not being accurate.’ The response from most of the public likely was, ‘Tell me something I don’t know.’”) (footnotes omitted).

[3] To date, Congress has enacted as many as or more than 159 statutes “pertaining to false statements.” See Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. L. Rev. 45, 61–62 (1998). The general false statement statute is 18 U.S.C. § 1001 (2012).

[4] See 18 U.S.C. § 1001(a)(3) (false statements in general are punishable by up to five years imprisonment, whereas a false statement related to terrorism is punishable by up to eight).

[5] It took only until the third chapter of Genesis for the “Father of Lies” to make his first appearance and bring about the Fall of Man through a cleverly deceitful tongue. See Genesis 3:1–5.

[6] Psalm 119:163.

[7] See supra note 2.

[8] Arthur R. Pearce, Theft by False Pretenses, 101 U. Penn. L. Rev. 967, 969 (1953) (quoting 1 Hawkins, Pleas of the Crown 343–44 (6th ed. 1777), and 2 Edward Hyde East, Pleas of the Crown 817 (1806), both concerning cases at common law).

[9] Pearce, supra note 8, at 971.

[10] Stuart P. Green, Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements, 53 Hastings L.J. 157, 160 (2001) (describing the development of fraud, false pretense, and false statements doctrines at common law).

[11] 30 Geo. II, c. 24 (1757).

[12] Pearce, supra note 8, at 969–71.

[13] Id. at 968 n.6.

[14] Id. at n.1 (citing Pa. Stat. Ann. tit. 18, § 4836 (Purdon 1945)).

[15] Id. (citing King v. State, 152 Tex. Cr. 255, 258 (1948)).

[16] Id. (citing State v. McMahon, 49 RI. 107, 140 Atl. 359 (1928)).

[17] See Comment, Recent Cases: Criminal Law. Obtaining Property by False Pretenses. Confidence Game, 47 U. Chi. L. Rev. 724, 725 (1940) (citing Ill. Rev. Stat. c. 38, § 256 (1939)).

[18] See Act of Mar. 2, 1863, ch. 67, 12 Stat. 696. See generally Larry D. Lahman, Bad Mules: A Primer on the Federal False Claims Act, Okla. Bar J. (2005), available at http://www.okbar.org/members/BarJournal/archive2005/Aprarchive05/obj7612fal.aspx (discussing the origins and subsequent history of the law); William J. Schwartz, Note, Fairness in Criminal Investigations Under the Federal False Statement Statute, 77 Colum. L. Rev. 316, 317 (1977) (same).

[19] Stuart P. Green, Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime 162 (2006) (hereafter Green, Lying, Cheating, and Stealing).

[20] Act of Mar. 2, 1863, ch. 67, 12 Stat. 696.

[21] By the early 1900s, several states also enacted fraud statutes to address false statements. See Note, Innocent Misrepresentations, 37 Yale L.J. 1141, 1149 (1928).

[22] See 2 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 8.7, at 382–83 (1986). The elements of Anglo–American common law fraud were five: “(1) a false representation of a material present or past fact (2) which causes the victim (3) to pass title to (4) his property to the wrongdoer, (5) who (a) knows his representation to be false and (b) intends thereby to defraud the victim.” Id. In hindsight, it is difficult to see how signing a purchase order providing for the delivery of 100 rifles with the intent of providing only 80 faulty rifles would not amount to common-law fraud.

[23] See United States v. Cohn, 270 U.S. 339, 346 (1926) (describing the statutory requirement of fraud against the Treasury); Green, Lying, Cheating, and Stealing, supra note 19, at 162; see also Steven R. Morrison, When Is Lying Illegal? When Should It Be? A Critical Analysis of the Federal False Statements Act, 43 J. Marshall L. Rev. 111, 126 (2009) (noting that after United States v. Cohn, “cheating the government out of property or money” was the government’s concern); but see United States v. Gilliland, 312 U.S. 86, 92–94 (1941) (claiming that the federal prohibition of false statements was not restricted to cases involving pecuniary loss to the government). The Act also allowed private individuals to bring a qui tam action—in which a person sues on behalf of the United States—to recover damages from suppliers perpetrating fraud in order to encourage whistleblowing. See Act of Mar. 2, 1863, ch. 67, § 6, 12 Stat. 696.

[24] Green, Lying, Cheating, and Stealing, supra note 19, at 162.

[25] Id. at 162–63. See also Schwartz, supra note 18, at 317 (noting legislative history concerning “hot oil.”)

[26] 48 Stat. 195 (1933).

[27] Panama Ref. Co. v. Ryan, 293 U.S. 388, 430 (1935).

[28] See id. at 414 (discussing § 9(c) of the NIRA, stating that any violation of executive orders issued under the NIRA was punishable by a fine of up to $1,000, imprisonment for up to six months, or both); Gilliland, 312 U.S. at 87 (concerning eight counts of false statements related to hot oil).

[29] 293 U.S. at 418.

[30] Hot Oil, Texas State Hist. Assoc. (June 15, 2010), https://tshaonline.org/handbook/online/articles/doh04 (“To evade the state proration laws and the federal regulation of interstate oil transportation imposed under the National Recovery Act, many independent producers resorted to trickery to increase their output. Their methods included tapping underground pipes or reservoirs, loading trucks by moonlight, disguising oil trucks as moving vans, piping oil to moonshine refineries, and using dummy refineries that shipped oil labeled as gasoline. One producer kept at the top of a derrick a lookout who shut off the illegal flow whenever investigators approached; another built a concrete blockhouse over his controls; several provided guns and cash for private guards delegated to deal with state agents, or cheerfully paid $1,000 fines that represented only a fraction of a day’s profit.”).

[31] Panama Ref. Co., 293 U.S. at 406–07.

[32] Id. at 408. The false statement law in 1934 under which false reports were criminalized specifically made “it a crime knowingly and willfully to ‘make or cause to be made any false or fraudulent statements or representations,’ or to ‘make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement of entry in any matter within the jurisdiction of any department or agency of the United States.’” Gilliland, 312 U.S. at 87–90. Thomas Connally, a U.S. Senator from Texas, repackaged the regulations into the Hot Oil Act of 1935 to “protect” interstate commerce from “contraband oil.” See Connally Hot Oil Act of 1935, Tex. State Hist. Assoc. (Updated June 12, 2010), https://tshaonline.org/handbook/online/articles/mlc03.

[33] See Gilliland, 312 U.S. at 93 (stating that in the statute at hand, “there was no restriction to cases involving pecuniary or property loss to the government. The amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.”).

[34] Id. at 94–95.

[35] Green, Lying, Cheating, and Stealing, supra note 19, at 163.

[36] See Morrison, supra note 23, at 127 (noting that then-Secretary of the Interior Harold Ickes “sent Congress another draft that protected all government agencies and did not require the government to prove specific intent to defraud. The law then covered statements made in ‘any matter within the jurisdiction of any department or agency of the United States.’”).

[37] See id.; Peter W. Morgan, The Undefined Crime of Lying to Congress: Ethics Reform and the Rule of Law, 86 Nw. U. L. Rev. 177, 205 (1992). The 1934 false statements act was also significant in that Congress severed “the historical link with the false claims portion of the statute.” Hubbard v. United States, 514 U.S. 695, 706 (1995).

[38] Hubbard, 514 U.S. at 706 (“[The 1934 Act] can be viewed as stripping away the financial fraud requirement while not disturbing the pre-existing breadth the statute had enjoyed from its association with the false claims statute.”).

[39] See United States v. Yermian, 468 U.S. 63, 76 (1984) (Rehnquist, J., dissenting) (in a five-to-four decision, Justice William Rehnquist’s dissent would have struck down the false statements statute as unconstitutionally vague).

[40] With only slight variations across the federal courts. See Morrison, supra note 23, at 113–14; United States v. Jiang, 476 F.3d 1026, 1029 (9th Cir. 2007); United States v. Robison, 505 F.3d 1208, 1226 (11th Cir. 2007); United States v. Pickett, 209 F. Supp. 2d 84, 87 (D.C. Cir. 2002) (citing United States v. Crop Growers Corp., 954 F. Supp. 335, 349 (D.C. Cir. 1997)); United States v. Kosth, 257 F.3d 712, 718 (7th Cir. 2001).

[41] See United States v. Levin, 133 F. Supp. 88, 90 (D. Colo. 1953) (arguing that if the statute were construed broadly, “the results would be far-reaching. The age-old conception of the crime of perjury would be gone. Any person who failed to tell the truth to the myriad of government investigators and representatives about the matter, regardless of how trivial, whether civil or criminal, which was within the jurisdiction of a department or agency of the United States, would be guilty of a crime punishable with greater severity than that of perjury…. It is inconceivable that Congress had any such intent when this portion of the statute was enacted.”).

[42] See United States v. Beacon Brass, 344 U.S. 43, 46 (1952); United States v. Massey, 550 F.2d 300 (5th Cir. 1977) (interpreting the Supreme Court’s Beacon Brass decision to claim that “The United States Supreme Court has already recognized that there is no distinction between oral and written statements under the statute.”); United States v. Clifford, 409 F. Supp. 1070, 1074 (E.D.N.Y. 1976) (noting that “the word ‘statement’ as it appears in the statute has been interpreted to include oral statements not under oath.”).

[43] “Silence may be falsity when it misleads, particularly if there is a duty to speak.” United States v. Mattox, 689 F.2d 531, 533 (5th Cir. 1982) (holding that an omission of required information on a Labor Department form was a false statement under 18 U.S.C. §§ 1001 and 1920).

[44] “If there are facts that should be reported, leaving a blank belies the certification that the information therein is ‘true and correct.’” Id.; United States v. Irwin, 654 F.2d 671, 676 (10th Cir. 1981) (upholding a conviction under Section 1001 for submitting a federal grant application with missing, required information because “leaving a blank is equivalent to an answer of ‘none’ or a statement that there are no facts required to be reported.”).

[45] For starters, it would be reasonable to assume that the government cannot convict a defendant for making a false statement if the individual genuinely believes the statement at issue to be true. See Morrison supra note 23, at 117 (“As of yet, no case exists where the government has charged, much less convicted, a defendant who believed her statement to be true.” Id.). But see United States v. Gahagan, 881 F.2d 1380, 1381 (6th Cir. 1989) (defendant was indicted for concealing ownership of a 1974 Jaguar in failing to disclose the fact of ownership to a probation officer, in violation of 18 U.S.C. § 1001. Defendant was convicted and sentenced to serve one year in prison without parole, although he had sold and transferred title to the car prior to his conversation with the probation officer).

[46] See, e.g., United States v. Vesaas, 586 F.2d 101, 104 (8th Cir. 1978) (citing Bronston v. United States, 409 U.S. 352 (1973); United States v. Lozano, 511 F.2d 1, 5 (7th Cir.) (1975); United States v. Steinhilber, 484 F.2d 386, 390 (8th Cir. 1973); United States v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963)) (holding that a statement, although misleading, was literally true and therefore not a false statement).

[47] See Diogo, 320 F.2d at 905 (2d Cir. 1963).

[48] See United States v. Stephenson, 895 F.2d 867, 873 (2d Cir. 1990) (affirming a conviction under 18 U.S.C. § 1001 of making a false statement to a government official where the defendant reported that he had been offered a bribe, which was literally true, but only because the defendant himself solicited the bribe).

[49] See Morrison, supra note 23, at 114.

[50] See Williams v. United States, 458 U.S. 279, 280 (1982) (applying the rule of lenity to determine that a defendant’s check-kiting scheme would not support a false statement conviction because “technically speaking, a check is not a factual assertion at all, and therefore cannot be characterized as ‘true’ or ‘false.’” Id. at 284.).

[51] Yermian, 468 U.S. at 69 (stating “there is no basis for requiring proof that the defendant had actual knowledge of federal agency jurisdiction.”). In that case, the defendant’s “sole defense was that he did not know that the false statement was within the jurisdiction of a federal agency; he thought he was lying only to his private employer.” Clark D. Cunningham et al., Plain Meaning and Hard Cases, 103 Yale L.J. 1561, 1570 (1994). As Justice Rehnquist notes in his dissenting opinion, this view “extend[s] the scope of the statute even to reach, for example, false statements privately made to a neighbor if the neighbor then uses those statements in connection with his work for a federal agency.” Yermian, 468 U.S. at 82.

[52] United States v. Gaudin, 515 U.S. 506, 509 (1995) (citing Kungys v. United States, 485 U.S. 759, 770 (1988)).

[53] See Bryan H. Druzin & Jessica Li, The Criminalization of Lying: Under What Circumstances, If Any, Should Lies Be Made Criminal?, 101 J. Crim. L. & Criminology 529, 547 (2011).

[54] Id. “The standard for establishing materiality is quite low,” in part because of the loose meaning that various courts have read into the materiality requirement. Morrison, supra note 23, at 119. Courts have reasoned “that a statement is material if it was ‘predictably capable’ of affecting a decision; had a ‘natural and probable effect’ of interfering with government decisionmaking; had a ‘propensity’ to influence; ‘might have’ influenced a government function; had the ‘potential’ to influence; and ‘could have’ affected a decision.” Id. at 119, nn. 47–52 (citing United States v. Turner, 551 F.3d 657, 663 (7th Cir. 2009); United States v. Silva, 119 F. App’x 892, 894 (9th Cir. 2004) (stating “the question of materiality should be submitted to the trier of fact to determine whether the statement ‘has the propensity to influence agency action.’”) (citation omitted); United States v. Alemany Rivera, 781 F.2d 229, 234 (1st Cir. 1985); United States v. Richey, 279 F. App’x 779, 781 (11th Cir. 2008)).

[55] See Yermian, 468 U.S. at 66–67, 68–69.

[56] United States v. Oren, 893 F.2d 1057, 1064 (9th Cir. 1990) (quoting United States v. Rodgers, 466 U.S. 475, 479 (1984)). As another Ninth Circuit Court of Appeals decision claims, “[f]or this ‘jurisdiction’ element to be satisfied, there is no requirement that the false statement be made directly to the federal agency. It is, however, necessary under section 1001 that ‘the false statement involve a matter within federal agency jurisdiction at the time it was made.’” United States v. Green, 745 F.2d 1205, 1210 (1984).

[57] United States v. Mellon, 96 F.2d 462, 463 (2d Cir. 1938).

[58] United States v. Wolf, 645 F.2d 23, 24-25 (10th Cir. 1981). Ultimately, the government could plausibly exercise jurisdiction over any statement that relates to an “official, authorized function” of a government agency.

[59] See Id.; United States v. Bedore, 455 F.2d 1109, 1110 (9th Cir. 1972) (“[V]irtually any false statement, sworn or unsworn, written or oral, made to a government employee could be penalized as a felony.”).

[60] Katie Tubb, Nicolas D. Loris & Paul J. Larkin, Jr., The Energy Efficiency Free Market Act: A Step Toward Real Energy Efficiency, Heritage Foundation Backgrounder No. 3144 (Aug. 17, 2016), http://bit.ly/2c05Vl2.

[61] Taylor v. United States, 136 S.Ct. 2074 (June 20, 2016) (holding that the federal government has jurisdiction over a home robbery because it targeted a federally regulated thing, in this case marijuana).

[62] A defendant who falsely maintains his innocence of a state crime to a federal investigator can be charged with making false statements and be subject to a federal felony prosecution. See, e.g., United States v. Tabor, 788 F.2d 714, 716 (11th Cir. 1986), abrogated by Brogan v. United States, 522 U.S. 398 (1998) (Tabor was convicted under § 1001 for denying a violation of state law governing notary publics to an IRS agent. The conviction was reversed on appeal based on the “Exculpatory No” Doctrine, but that doctrine has since been repudiated, so a defendant in Tabor’s situation would seemingly be convicted under similar circumstances today). The Exculpatory No Doctrine provided that a statement that would otherwise violate Section 1001 was exempt from prosecution “if it conveys false information in a situation in which a truthful reply would have incriminated the interrogee” and was limited to simple words of denial. Scott D. Pomfret, Note, A Tempered “Yes” to the “Exculpatory No”, 96 Mich. L. Rev. 754, 755–56 (1997). The Supreme Court rejected the doctrine in Brogan. Brogan, 522 U.S. at 404, 415–418.

[63] “While Congress has enacted numerous specific statutes to deal with particular types of fraud against the government, enforcement efforts rely principally on five rather general statutes: 18 U.S.C. §§ 287 (false claims), 371 (conspiracy), 1001 (false statements), 1341 (mail fraud) and 1343 (wire fraud).” The general false statements statute is the only false statements statute listed that the Department of Justice “principally” invokes. Dep’t of Justice, United States Attorney’s Manual § 901 (hereafter USAM § 901).

[64] The Department of Justice in the mid-1970s counted 159 statutes pertaining to false statements made to government officials. See Gainer, supra note 3, at 61–62.

[65] Id.

[66] 7 U.S.C. § 6407(e).

[67] 15 U.S.C. § 1825(a)(2)(B).

[68] 16 U.S.C. § 831t(b).

[69] 18 U.S.C. § 1158.

[70] 22 U.S.C. §§ 1980(a)–(g).

[71] 18 U.S.C. § 1035.

[72] 42 U.S.C. § 290cc-32.

[73] 42 U.S.C. § 300e-17(h).

[74] 18 U.S.C. § 1026.

[75] 18 U.S.C. § 1542.

[76] 18 U.S.C. § 1546.

[77] 20 U.S.C. § 1097(b).

[78] There are also a number of obscure federal laws providing for civil enforcement actions for false statements made within the jurisdiction of a federal agency. Consider, for example, Tyce Walters, Note, Regulatory Lies and Section 6(c)(2): The Promise and Pitfalls of the CFTC’s New False Statement Authority, 32 Yale L. & Pol’y Rev. 335 (2013) (“Among the many changes wrought by Dodd–Frank was the grant of a significant but little-noticed power to the Commodity Futures Trading Commission (CFTC) to bring civil enforcement actions against those who make false representations to the Agency.”) (citing 7 U.S.C. § 9(2) (2012)).

[79] See supra notes 66–77.

[80] 16 U.S.C. § 831t(b); the Citing References on the Westlaw online legal research database reveal zero cases involving a criminal prosecution under this statute.

[81] 18 U.S.C. § 1158.

[82] The Citing References on the Westlaw online legal research database reveal approximately 1,000 cases in federal court as of August 15, 2016, that involve 18 U.S.C. § 1546, dating back to its enactment in 1996.

[83] Congress has amended the immigration statute several times. At the time of the 1996 amendment, The New York Times reported an “atmosphere of crisis” in Washington over “the ‘flood’ of immigration,” which helps to explain Congress’s belief that the later-enacted, particularized statute should be amended rather than repealed. Richard Rayner, What Immigration Crisis?, N.Y. Times (Jan. 7, 1996), http://www.nytimes.com/1996/01/07/magazine/what-immigration-crisis.html?_r=0 (noting that “all Washington has been grandstanding on the issue. Dozens of immigration-related bills were introduced last term.”).

[84] The answer seems to be both. For a recent example, see United States v. Svihel, No. 15CR19024DSDLIB, 2016 WL 1212364, at *3 (D. Minn. Feb. 25, 2016) (“The Superseding Indictment also charged Defendant Svihel and Defendant Farm with eight counts of false swearing in an immigration matter, in violation of 18 U.S.C. § 1546(a); and eight counts of false statements, in violation of 18 U.S.C. §§ 1001.”).

[85] See id.; Larkin & Seibler, Time to Prune the Tree, Part 2: The Need to Reassess the Federal Fraud Laws, supra note 1. The general mail fraud and wire fraud statutes, 18 U.S.C. § 1341 and 18 U.S.C. § 1343, also punish any fraudulent scheme that makes use of the mail and wire communications systems, and similar problems of multiplicity appear in the fraud context.

[86] This decision of how to count offenses is known as the “unit of prosecution.” See United States v. Lemons, 941 F.2d 309 (5th Cir. 1991) (discussing the doctrine and multiplicity in relation to fraud); Michael L. Seigel & Christopher Slobogin, Prosecuting Martha: Federal Prosecutorial Power and the Need for a Law of Counts, 109 Penn St. L. Rev. 1107, nn. 44, 46, 58 (2005) (citing cases dealing with the unit of prosecution in false statements prosecutions and generally discussing indictments with multiple counts for multiple lies).

[87] 18 U.S.C. § 1546(a).

[88] 18 U.S.C. §1001(a)(3). What consequences do these practices of overcriminalization create? As argued elsewhere, “Piling on punishment after punishment distorts society’s judgment regarding the seriousness of a crime. If five years’ imprisonment is the maximum penalty that should be imposed on someone who commits [a false statement], the number of [false statement] statutes he violated should be immaterial. Under today’s double jeopardy law, however, it is not. Counting statutory violations independently also allows a prosecutor to throw the book at someone in an effort to coerce a guilty plea. Such a tactic is not unconstitutional, but it is hardly desirable behavior that society wants to encourage in a legal system ostensibly committed to guaranteeing every defendant a fair trial—especially when that threat leads an innocent person to plead guilty to avoid long-term imprisonment. And there is no effective control over a prosecutor’s decision.” Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J. L. & Pub. Pol’y 715, 735 (2013). See also John H. Blume & Rebecca K. Helm, The Unexonerated: Factually Innocent Defendants Who Plead Guilty, 100 Cornell L. Rev. 157 (2014).

[89] See 18 U.S.C. § 1349 (carrying the same penalty as mail fraud or wire fraud).

[90] See 18 U.S.C. §§ 1341, 1343.

[91] The Double Jeopardy Clause of the U.S. Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Supreme Court has explained that this clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Grady v. Corbin, 495 U.S. 508, 515 (1990) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).

[92] 284 U.S. 299, 304 (1932).

[93] See, e.g., United States v. Chacko, 169 F.3d 140, 146 (2d Cir.1999) (“It is not determinative whether the same conduct underlies the counts; rather, it is critical whether the ‘offense’—in the legal sense, as defined by Congress—complained of in one count is the same as that charged in another.”).

[94] Compare 18 U.S.C. § 1001 with 18 U.S.C. § 1035.

[95] H.R. Rep. 104-747, at 2 (1996) (finding of Rep. Clinger).

[96] See United States v. Dose, No. CR04-4082 MWB, 2005 WL 1806414, at *11 (N.D. Iowa July 28, 2005) (finding that “a person could violate § 1035 in connection with the delivery of health care services under a private health care benefit program and not concurrently violate § 1001” and vice versa); United States v. Hinman, No. CR04-4082-MWB, 2005 WL 958395, at *18 (N.D. Iowa Apr. 22, 2005) (arguing that one can violate section 1035 and not section 1001 and vice versa); United States v. Sachakov, 812 F. Supp. 2d 198, 209 (E.D.N.Y. 2011) (same).

[97] See generally Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566 (2012) (illustrating the scope of federal regulatory authority over health care); but see Steven Harrison et al., Health Care Fraud, 52 Am. Crim. L. Rev. 1223, 1275 (2015) (“Under § 1001, the defendant must have made a false statement ‘in any matter within the jurisdiction of any department or agency of the United States’ to face prosecution. Because courts have broadly interpreted this element in the context of health care fraud, a statement made to an intermediary of the government, such as a private insurance company, can often count as a violation of this provision.”) (emphasis added).

[98] See Lisa Kern Griffin, Criminal Lying, Prosecutorial Power, and Social Meaning, 97 Cal. L. Rev. 1515, 1535–36 (2009) (explaining that “it is in white collar cases, where the underlying misconduct can be tricky to prove in court, that deception is typically charged as a freestanding crime. It can be difficult, for example, to prove accounting fraud beyond a reasonable doubt, and focusing on criminal deception makes a more straightforward appeal to the jury…. § 1001 often provides prosecutors with substitute offenses.”); United States v. Bush, 503 F.2d 813, 814–19 (5th Cir. 1974) (charges arising from IRS agent questioning without accompanying tax charges); United States v. Stark, 131 F. Supp. 190, 207 (D. Md. 1955) (§ 1001 indictment for denying accusations of bribery).

[99] See Christine Hurt, The Undercivilization of Corporate Law, 33 J. Corp. L. 361, 410–12, 421 (2008). Obstruction of justice is another example of that practice. See, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 706–08 (2005) (reversing obstruction of justice conviction following accounting fraud investigation).

[100] See Hurt, supra note 99, at 410–11; Paul J. Larkin, Jr., Funding Favored Sons and Daughters: Nonprosecution Agreements and “Extraordinary Restitution” in Environmental Criminal Cases, 47 Loy. L.A. L. Rev. 1, 13–14 n.32 (2013) (identifying challenges in conducting corporate criminal investigations).

[101] Hurt, supra note 99, at 410–11; Griffin, supra note 98, at 1516 (“Although in some cases organic and proxy false statement charges merely supplement the underlying crimes, in others, there is no stand-alone offense, and false statements supply the only prosecutable crime.”); Todd S. Kurihara & Kenneth T. Whang, False Statements and False Claims, 44 Am. Crim. L. Rev. 491, 493 (2007) (arguing that “prosecutors use § 1001 most often because they can enforce it either alone or in tandem with more specific statutes, such as § 287.18 Also, it is used frequently because of the comparative malleability of its elements.”).

[102] See Kevin McGill, Plea to Lesser Charge Means No Prison for Ex-BP Engineer in Spill Probe; Lawyer Rips DOJ, U.S. News (Nov. 6, 2015), http://www.usnews.com/news/us/articles/2015/11/06/ex-bp-engineer-pleads-guilty-in-gulf-oil-spill-probe (former BP engineer pleaded guilty to “intentionally causing damage without authorization to a protected computer” after being accused of obstructing an investigation—which carries a 20 year maximum prison sentence—into the Gulf of Mexico oil spill by deleting text messages with a friend who was a BP contractor).

[103] Griffin, supra note 98, at 1535; see also Schwartz, supra note 18, at 325–26 (“Moreover, in a criminal context, section 1001 may invite investigatorial and prosecutorial overreaching. Since agents may often expect a suspect to respond falsely to their questions, the statute is a powerful instrument with which to trap a potential defendant. Investigators need only informally approach the suspect and elicit a false reply and they are assured of a conviction with a harsh penalty even if they are unable to prove the underlying substantive crime.”).

[104] Brogan, 522 U.S. at 416. See also David A. Sklansky, Starr, Singleton, and the Prosecutor’s Role, 26 Fordham Urb. L.J. 509, 515–16, 531–32 (1999) (discussing the role of prosecutors’ discretion in the context of false statements).

[105] See Note, Obscene Harpies and Foul Buzzards? The F.B.I.’s Use Of Section 1001 In Criminal Investigations, 78 Yale L.J. 156, 170 (1968) (arguing that the general false statements statute “was not designed to address the problem of false statements made to a government investigator during the investigation of a crime. Use of the statute in such situations creates problems that are too serious.”).

[106] Consider also the case against Martha Stewart, who was investigated for, but never charged with, insider trading in 2001, because prosecutors did not feel they had enough evidence. See Charles Gasparino & Jerry Markon, Martha Stewart Is Given Notice Of Possible Charges by the SEC, Wall St. J. (Oct. 22, 2002), http://www.wsj.com/articles/SB1035231314576107071; Tom Petruno, Insider Trading, Tough to Prove, Isn’t Part of Stewart Criminal Case, L.A. Times (June 5, 2003), http://articles.latimes.com/2003/jun/05/business/fi-insider5. However, the S.E.C. did file a separate civil complaint against Steward for insider trading, which the parties later settled. Martha Stewart and Peter Bacanovic Settle SEC’s Insider Trading Charges, S.E.C. (Aug. 7, 2006), available at https://www.sec.gov/news/press/2006/2006-134.htm. Stewart was charged with and later convicted of “conspiracy, obstruction of an agency proceeding, and making false statements to government officials.” United States v. Stewart, 305 F. Supp. 2d 368, 371 (S.D.N.Y. 2004); Indictment, United States v. Martha Stewart, No. 03717 (S.D.N.Y. June 4, 2003), available at http://news.findlaw.com/cnn/docs/mstewart/usmspb10504sind.html. While Stewart was also criminally charged with securities fraud, the trial court judge granted a judgment of acquittal due to insufficiency of the evidence. U.S. v. Stewart (Stewart I), 305 F. Supp. 2d 368, 378 (S.D.N.Y. 2004).

[107] John R. Emshwiller & Gary Fields, For Feds, “Lying” Is a Handy Charge, Wall St. J. (Apr. 9, 1012), http://www.wsj.com/articles/SB10001424052702303299604577328102223038294.

[108] Id.

[109] Id.

[110] Id.

[111] Id.

[112] Id. This unforeseeable application of the false statement law runs afoul of another elementary rule of constitutional law that the government must provide the public fair notice of what conduct is met with criminal sanction, so the average person may act lawfully without a lawyer’s supervision. See Paul J. Larkin, Jr., Finding Room in the Criminal Law for the Desuetude Principle, 65 Rutgers L. Rev. Commentaries 1, 3–4 (2014).

[113] Brogan, 522 U.S. at 410 (Ginsburg, J., concurring) (citing cases that illustrate the potential for abuse of false statements laws).

[114] See Emshwiller & Fields, supra note 107; Gaudin, 28 F.3d at 944 (The government contended that Gaudin misled the Federal Housing Authority by using “strawbuyers” to obtain houses for himself with FHA loans. Gaudin was not charged with fraud; instead, he was charged with making false statements on FHA forms); Tabor, 788 F.2d at 716; see also Hurt, supra note 99, at 410–11; Levin, 133 F. Supp. at 90 (stating that “inquiry might be made of any citizen concerning criminal cases of a minor nature, or even of civil matters of little consequence, and if he wil[l]fully falsified his statements, it would be a violation of this statute.”).

[115] Brogan, 522 U.S. at 409 (Ginsburg, J., concurring).

[116] See Gainer, supra note 3, at 59.

[117] Article I vests “[a]ll legislative Powers” in Congress, including the power to repeal statutes. U.S. Const. art. I, § 1. See Clinton v. City of New York, 524 U.S. 417 (1998); District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953) (“The repeal of laws is as much a legislative function as their enactment.” Id. at 113–14.); United States v. Hudson, 11 U.S. 32, 34 (1812). (“[A]ll exercise of criminal jurisdiction in common law cases we are of opinion is not within [the Court’s] implied powers.”); See U.S. Const. art. I, § 7; INS v. Chadha, 462 U.S. 919 (1983). Two bills in particular that Congress introduced in 2015 suggest that legislative resources are already being spent on figuring out how to clean up the federal criminal code. They are the Regulatory Reporting Act of 2015, H.R. 4003, 114th Cong. (2015), and the Clean Up the Code Act of 2015, H.R. 4023, 114th Cong. (2015).

[118] See Gainer, supra note 3, at 62.

[119] The federal code contains an excess of “redundant, superfluous, and unnecessary” criminal laws. Edwin Meese III, Testimony before the House Judiciary Committee, Subcommittee on Crime, Terrorism and Homeland Security, Principles for Revising the Criminal Code (Dec. 13, 2011), http://www.heritage.org/research/testimony/2011/12/principles-for-revising-the-criminal-code. They create a number of moral hazards that degrade the fairness of the criminal process by overarming prosecutors against defendants. See Alex Kozinski & Misha Tseytlin, You’re (Probably) a Federal Criminal, in In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of Criminal Law” 43, 44 (Timothy Lynch ed., 2009).