We can blame the cops.
Look, I don't disagree with this. But the die has been cast. You probably spend more of your waking hours committing crimes than not committing them. You can blame cops for enforcing laws just like you can blame anyone for doing something they know is wrong, whether because "it's their job" or for any other reason. There's not just one way to attack a system you don't like. Fight on all fronts. You'll make better, faster progress.
Do you think more laws are invalidated by being actually repealed, or by shifting the culture to the point where enforcing them is impossible? Why is this particular case different?
That's FUD and you know it. Most things that people do are not crimes. People don't spend the majority of their day, or even a significant minority of their day committing crimes.
Moreover, just because something is against the rules doesn't make it a crime. It may be a mere infraction or a tort. Infractions may, in some jurisdictions, be enforceable by cops. Tort laws are not enforced by the police in any jurisdiction.
- A "crime" is anything proscribed by any legal code. The term is not restricted to actions earning, or just potentially earning, prison time.
- US law is so vague that there is no way to assure yourself that you haven't violated it.
- US law, in its vagueness, covers mostly normal, unexceptional conduct ("mostly" here refers to the idea that of all the conduct proscribed by the law, "most" of it is normal and a healthy majority of pollees would happily agree that it shouldn't be proscribed at all).
- The proscriptions are so broad that if, in the course of your life, you interact with any other person in any capactiy, you are reasonably likely to run afoul of one or more laws.
- As the vast majority of people interact with multiple other people every day, most of your life is covered by this.
- The breadth of these proscriptions is not aberrant in the eyes of the system. It's considered an important feature that lets prosecutors take down those who need to be taken down, and making the laws more rigid would hurt that project.
If a guy on the street asks you where you just came from, and you lie to him ("Church. I don't visit strip clubs"), that's your right. Unless he was a plainclothes LEO. There is no pretense that people are even able to follow that law, but it's on the books and enforced.
In Illinois, where I live, it's not even a crime to lie if you know they're a police officer, so long as you aren't knowingly disrupting the investigation. The state needs to prove not just deception, but intent regarding the police officer's actual effort.
Where's the statute that you're thinking of? I'm sure it exists; our union includes places like Kansas and Utah.
The answer to this question is "all of them", or, to be painfully specific, "all jurisdictions subject to the federal government".
The code is this one: http://www.law.cornell.edu/uscode/text/18/1001
(a) Except as otherwise provided in this section,
whoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
(3) makes or uses any false writing or document
knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more
than 5 years or, if the offense involves international
or domestic terrorism (as defined in section 2331),
imprisoned not more than 8 years, or both. If the
matter relates to an offense under chapter 109A,
109B, 110, or 117, or section 1591, then the term of
imprisonment imposed under this section shall be not
more than 8 years.
> Though materiality is an element of Section 1001, it's a weak, diluted type of materiality. Statements to the government are deemed material if they are the sort of statements that have the capacity to influence it. Courts have come very close to creating a presumption of materiality by reasoning that if the information were not material the government would not have asked for it and you wouldn't have offered it.
(emphasis original)
The poster child for this sort of thing is Martha Stewart, who was investigated for insider trading, but not charged for it. She was convicted of (according to wikipedia) "conspiracy", obstruction of an agency proceeding, and making false statements under §1001. It is not alleged that, other than lying to investigators, she did anything wrong.
At the charge's wikipedia page ( http://en.wikipedia.org/wiki/Making_false_statements ), we can read the following:
> Courts have affirmed §1001 convictions for false statements made to private entities receiving federal funds or subject to federal regulation or supervision.
(emphasis mine)
There is no requirement that you be aware of any information concerning the person you're lying to. There is no requirement that they be employed by the government. There is no requirement that you know an investigation is being conducted. Every time you lie to a person you don't know, you're taking the risk of committing a federal felony. If they purposefully mislead you into doing so... you're just as guilty.
edit:
Concerning your language "whether or not the strip club is the target of an investigation". Obviously, it's not necessary that the strip club be the target. As long as any investigation, whether of the strip club, you, or a third party, is under way, lying about your presence there is a felony. But that's the weak, technically correct way to answer you. What bothers me more is that you don't have to be aware of the investigation. Whether lying is a crime or not is based wholly on facts that you don't and cannot know. This spits in the face of the mens rea concept, to say nothing of the idea "ignorance of the law is no excuse".
Because the scenario you laid out for people randomly breaking the law in their daily life was "lying about ever going to strip clubs to someone who turned out to be a plainclothes cop".
I think the statute you cited is a pretty poor example of a law normal people routinely violate.
whoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully
makes any materially false, fictitious, or fraudulent
statement or representation
shall be fined under this title, imprisoned not more
than 5 years or, if the offense involves international
or domestic terrorism (as defined in section 2331),
imprisoned not more than 8 years, or both.
The US Attorney's Manual ( http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit... ) tells us that the jurisdictional requirement is satisfied if any of the following three circumstances hold:
1. the agency had the power to act on the statement;
2. there was an "intended" relationship between the act
and the Federal government; or
3. the act was calculated to induce government action.
They give several examples of what makes a violation, of which my favorites are "false statements to oil company subject to federal regulation" and "false time sheet submitted to accounting office of community organization receiving CETA funds". How are you distinguishing lying to your boss about your hours worked from lying to the guy on the street about whether you were in a strip club?
First, your source doesn't deal (in ANY of its exhausting pages) with the implications of a defendant making false statements to an unknown government agent. In every situation it refers to, including those involving non-government agents performing government functions, the defendant knows they're disclosing something material to a government function of some sort. Read closely. (It is especially annoying how close the "Things the government must prove" page comes close to settling this.)
Second, SCOTUS disagrees with you. For instance, see Liparota v. US. The government is required to prove mens rea.
Third, 18 USC 1001 is ambiguous (there's a sprawling discussion on Volokh about it), and, where statutes are ambiguous, the rule of lenity requires that the ambiguity be resolved in favor of the defendant. Here, you raise the concern that 1001 is ambiguous as to whether the defendant must know both that they are lying and speaking to an agent of the government, or whether merely lying suffices. Tie goes to the runner.
Can you find a case where someone has had an upheld conviction under 1001 for lying to someone they didn't know was an agent of the government? I looked.
No, I don't think saying you don't go to strip clubs to a plainclothes cop investigating the Strip Club Strangler actually makes you a criminal.
1. You are "in" a matter subject to the jurisdiction of any branch of the US government.
2. You knowingly (and willfully) make a false statement.
The entity your statement is directed to is not mentioned. We have cases of convictions under section 1001 for making knowing false statements to someone who was known not to be a government agent. As a side note, I was fairly explicit in my earlier comment, saying "there is no requirement that you be aware of any information concerning the person you're lying to"; it would have been nice if you'd indicated your disagreement then. Again, the object of your deceit is not even mentioned in the law.
As to your second point, I haven't said that section 1001 defines a strict liability offense (for example, if I lie to investigators in the belief that what I'm saying is true, mens rea would be hard to show). I'm saying that the way this law is defined conflicts with the concept behind mens rea (compare my prior words, "this spits in the face of the mens rea concept"), in that liability can attach to you based on facts you couldn't have known (though you'll still have "mens rea" in that you knew you were lying).
To the third point, if speaking to an agent of the government is not an element of the crime (and since you can be convicted without having spoken to an agent of the government, that seems likely), it's hard to see why the prosecution would have to prove that you knew you were speaking to one.
The fact that a conviction hasn't occurred under a particular set of facts does not address my complaint of overcriminalization. I just spent dozens of words arguing that criminal statutes cover, in their inappropriate breadth, much more conduct than they should, including conduct that "most" would agree should not be covered at all. This kind of thing, where prosecutors could go after anyone but choose to go after the politically unpopular (lest their power to pursue anyone be taken away), is a terrible development. If you think a conviction under those facts would be so ridiculous... is it ridiculous enough that we should remove it from the reach of that law?
Remember, the fact that a conviction with unusual facts has never occurred doesn't block you from suffering the full penalty when you become the first person to fit the pattern. If you can be convicted under section 1001 for lying to known non-government-agents, and you can be convicted for lying to known government agents in a proceeding you weren't aware of, you can be convicted of lying to unknown government agents in a proceeding you weren't aware of.
I would be interested in such discussion on Volokh as you cared to bring to my attention; searching the site for "18 USC 1001" brought up a lot of mentions but no discussions (that I found).
* It appears (and obviously so in retrospect) that 1001 applies only to agents of the federal government; lying to a plainclothes police officer can't violate 18 USC 1001.
* Convictions on 18 USC 1001 have been overturned simply because the agent eliciting the statement was "unfair", for instance by concealing that they already knew the answer.
* US v Stark says held that mere denial of a fact absent a legal duty to speak didn't create a material breach of 1001 (your example was a simple denial).
* US v. Schnaiderman held that "willfulness" for 1001 requires an affirmative act calculated to confound a function of the state. Which also breaks your example, and refutes several of the points you've made.
It is apparently so difficult to win 1001 cases that US Attorneys are required to get special permission before bringing them against defendants who have simply lied to investigators during criminal investigations.
I was sick at home with a head cold today and had time to do some research. :)
I conclude that you are not just wrong, but comprehensively wrong. But I'm grateful to have a wild goose to chase!
If a guy on the street asks you where you just came from, and you lie to him ("Church. I don't visit strip clubs"), that's your right. Unless he was a plainclothes LEO.
The statute he cited does not make that scenario criminal.
However, is there any instance where it applied to a guy making comments to an unidentified cop?
I don't disagree with you, but I tend to think that politicans will use citizen campaigns if they're useful and ignore them otherwise.
http://www.governo.it/Notizie/Presidenza/dettaglio.asp?d=690...
Most of the marijuana legalization stuff isn't being driven by huge corporations.
Gay marriage rights are not a campaign that some lobbyist cooked up.
In my home state of Oregon, they legalized euthanasia a number of years ago. That wasn't exactly something with massive corporate backing... "Wash down that lethal dose of barbiturates with a refreshing Coca Cola!"
Most initiatives in California.
Megan's Law and various other laws named for crime victims.