Fill and Sign the Jury Instruction False Claims Against the Government Form

* See Offense Instruction 86, infra, concerning Fraudulent Receipt of V.A. Benefit s in vi olation of 38 USC § 61 02 (b). 122 9 False Claims Against The Government 18 USC § 287 Title 18, United States Code, Section 287, makes it a Federal crime or offense for anyone to knowingly make a false claim against any department or agency of the United States. [You are instructed that the General Services Administration is a department or agency of the United States within the meaning of that law .] The Defendant can be found guilty of the offense of making a false claim against the Government only if all of the following facts are proved beyond a reasonable doubt: First: That the Defendant knowingly present ed t o an agency of the Unit ed States a false and fraudulent claim against t he Unit ed States, as charged in the indictment; and Second: That the Defendant acted willfully and with knowledge of t he false and fraudulent nature of the claim. A claim is "false" or "fraudulent" if it is untrue at the time it is made and is then known to be untrue by the person making it. It is not necessary to show , however, that the Government agency was in fact deceived or misled. ANNOTATIONS AND COMMENTS 18 USC § 28 7 provides: Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false fictitious, or fraudulent [shall be guilty of an offense against the United States]. Maximum Penalty: Five (5) years imprisonment and applicable fine. Note that Section 287, unlike other false claims or false statements provisions such as 18 USC § 1001, does not expressly state that "materiality" is an essential element of the offense. The Fourth and Eighth Circuits have held that materiality is an element of a violation under 18 USC § 287. United States v. Pruitt, 7 02 F.2d 1 52, 1 55 (8t h Cir. 1 98 3); United States v. Snider, 5 02 F.2d 6 45, 6 52 n.1 2 (4 t h Cir. 1 97 4). The Second, Ninth, and Tenth Circuits have held that materiality is not an element under 18 USC § 287. United States v. Taylor, 66 F.3d 2 54, 255 (9th Cir. 1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984). The Eleventh Circuit has explicitly avoided deciding whether materiality is an element under 18 USC § 287. United States v. Whit e, 27 F.3d 1531, 15 35 (11t h Cir. 1994). The Eleventh Circuit relies on a decision from the former Circuit which says that if materiality is a required element under section 287, t he trial judge must decide the issue as a question of law. See United States v. Haynie, 568 F.2d 1091, 1092 (5th Cir. 1978) (percuriam). Since Haynie and White were decided, t he United States Supreme Court has held that where materiality is an element of the offense charged, due process requires that The trial judge submit every aspect of that element to the jury. This includes requiring the jury to determine what statement or representation was made and w hat decision the agency was trying to make. United States v. Gaudin, U.S., 115 S.Ct. 2 310, 132 L.Ed.2d 444 (1995) (reviewing a convict ion under 18 USC § 1001). But see United States v. Klais, 68 F.3d 1282 (11th Cir. 1995), where the court distinguished Gaudin from an offense under 1 8 USC § 92 2(a)(6 ), and held that the issue of materiality under § 922(a)(6) is a question of law for the court. If an additional element of materiality is added to the instruct ion, Unit ed States v. White, 27 F.3d 1531 (11t h Cir. 199 4) holds that a statement is material if it " has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made." Id. at 1535. Also, more recently, t he United States Supreme Court held in United States v. Wells, U.S. , 117 S.Ct. 921 (1997) t hat materiality is not an element of the offense proscribed by 1 8 USC § 10 14 (false statement s made to banks), and that decision would seem to apply with equal force to this section. The committee thus elected to exclude materiality as an essential element under § 287.