II. FALSE STATEMENTS
A. Elements of a [section]1001 Offense
1. Statements or Concealments
B. [section] 1001 Defenses
1. Exculpatory "No"
3. Double Jeopardy
4. Other Defenses
C. Sentencing under [section]1001
III. FALSE CLAIMS
A. Elements of a [section] 287 Offense
1. Presentation of a Claim
2. False, Fictitious, or Fraudulent Claims
B. [section] 287 Defenses
1. Intent-Based Defenses
2. Double Jeopardy
C. [section]287 Enforcement
1. Enforcement Provisions
IV. CIVIL PROSECUTIONS UNDER 31 U.S.C. [subsection] 3729-3733
Sections 287 and 1001 of Title 18 of the United States Code are statutes that make it a crime to (1) knowingly make a false claim upon or against the United States or to any department or agency thereof (1) and to (2) knowingly and willfully make a false statement to the United States or to any department or agency thereof (2), respectively. In addition, 31 U.S.C. [subsection] 3729-33 provides for the civil prosecution of false claims. (3) The three statutes, covered by just one statute from 1863 to 1948, contain very similar elements. (4) Often, this grants prosecutors the ability to choose the statute under which they desire to prosecute cases of fraud. (5) In some instances, it does not constitute a violation of the Double Jeopardy Clause to punish defendants under both [section] 287 and [section] 1001 because the language of the statutes demonstrates Congress intended to create two distinct violations. (6)
While prosecutors may use the statutes interchangeably, some significant differences do exist between the three statutes. For example, while materiality is an element of [section] 1001 regardless of which portion of [section] 1001 is at issue (7), the circuits are split on whether materiality is an element of [section] 287.8 In addition, [section] 1001 requires that the prosecutor prove the defendant both knowingly and willfully lied to the government. (9) However, the circuits are divided on the intent requirement for [section] 287. (10)
In addition to the two criminal statutes, 31 U.S.C. [section] 3730(b) affords private citizens the ability to bring a qui tam civil action for a violation of [section] 3729 on behalf of the government. (11) Suits brought under this statute effectively function as criminal suits, while allowing the private citizen to be awarded damages.
There are tactical reasons why a prosecutor chooses to use one statute over another. For example, the Department of Justice ("DOJ") advises its attorneys to pursue cases under [section] 287 rather than under [section] 1001 whenever possible, in order to enhance the government's ability to favorably use estoppel doctrines in subsequent civil suits. (12) Section I of this article discusses prosecutions brought under [section] 1001, the false statements statute. Section II of this article addresses criminal charges brought under [section] 287, the false statements statute. Finally, Section III addresses the civil false claims statutes.
I. FALSE STATEMENTS
[section] 1001 of Title 18 of the United States Code (13) is a broad and frequently used (14) statute that criminalizes the act of making false statements to the United States government. Title 18 also contains several more specific false statement statutes, including [section] 1014, which criminalizes false statements to influence loan and credit applications, (15) and [section] 1027, which criminalizes false statements related to Employee Retirement Income Security Act (ERISA) documents. 16 However, prosecutors use [section] 1001 most often because they can enforce it either alone or in tandem with more specific statutes, such as [section] 287. …