False Statements—TSA Employees and John McTiernan

Six employees of the Transportation Security Administration [hereinafter TSA] have been indicted by a federal grand jury in Houston on charges that they made false statements during their employment application process.^[1] One of the several forms that prospective TSA employees are required to complete “asks the applicants to answer the question, ‘Have you been arrested or charged with an offense in the last 7 years?’, and to list those arrests or convictions, if any.”^[2] The six individuals allegedly falsely answered the question by denying that they had, when each allegedly had been arrested or convicted within the past seven years.^[3]

False statements are covered by 18 U.S.C. § 1001(a), which makes it a crime for a person to “knowingly and willfully”

• falsify, conceal, or cover up by any trick, scheme, or device a material fact;
• make any materially false, fictitious, or fraudulent statement or representation; or
• make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry

”in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”^[4] The punishment for violating section 1001 is a fine, imprisonment for up to 5 years, or both.

In short, the government must prove five elements: "(1) a statement, that is (2) false (3) and material, (4) made with the requisite specific intent, [and] (5) within the purview of government agency jurisdiction."^[5]

The TSA is within the Department of Homeland Security, which is an executive branch department; thus, the statute would apply to these individuals from a jurisdictional standpoint.

The materiality element is an essential element of every section 1001 violation.^[6] “A false statement is material if it is shown to be capable of influencing a decision of the institution to which it was made.”^[7] In fact, the statement does not actually need to influence a decision because reliance is irrelevant.^[8] It can be material “even if it is ignored or never read by the agency receiving the misstatement.”^[9]

Obviously, if the individuals had not been charged or arrested for a crime, and the government made a mistake, then the statements could not be considered false.

Finally, the intent element is not whether the individual knowingly or willfully made the statement knowing it was illegal to do so, but that the individual knowingly or willfully made the statement knowing it to be false.^[10]

In addition to the TSA employees, “Die Hard” and “The Thomas Crown Affair” director John McTiernan has been indicted on false statements charges as well.^[11] The charges come in the wide-ranging investigation of Anthony Pellicano, who we last discussed on February 6.

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[1] US Attorneys Office, Six TSA Employees Charged with Making False Statements, Apr. 3, 2006.
[2] Id.
[3] Id.
[4] 18 U.S.C. § 1001.
[5] United States v. Shah, 44 F.3d 285, 289 (5th Cir. 1995); United States v. Pickett, 209 F. Supp. 2d 84 (D.D.C. 2002).
[6] See United States v. Gaudin, 28 F.3d 943 (9th Cir. 1994); United States v. McGough, 510 F.2d 598 (5th Cir. 1975); United States v. Deep, 497 F.2d 1316 (9th Cir. 1974).
[7] United States v. Williams, 12 F.3d 452, 456 (5th Cir. 1994).
[8] Id. at n.14 (citing United States v. Puente, 982 F.2d 156, 159 (5th Cir. 1993).
[9] Puente, supra note 7, at 159.
[10] United States v. Yermian, 468 U.S. 63 (1984).
[11] Die Hard Director Charged, Associated Press (via CNN.com), Apr. 3, 2006.