Multiple False Statements In Single Interview Can Support Only One 1001 Conviction

US v. Smith: Smith was being investigated by the FBI after he asked an informant for help in travelling to Syria to fight in the civil war there. Eventually, a pair of agents questioned Smith about all this and during the conversation Smith made a pair of false statements – answering “no” to whether he had ever spoken with another person about going to Syria to fight and stating that he did not know another person’s plans were regarding joining ISIS. As a result, Smith was charged with two counts of making false statements under 18 USC 1001(a)(2), with Count One being the statement he’d not spoke within anyone about his desire to go to Syria and Count Two being the statement about the other person’s plans. After Smith unsuccessfully moved to dismiss Count Two as multiplicitous, he was convicted at trial and sentenced to concurrent terms of five years in prison.

On appeal, the Fourth Circuit vacated Smith’s conviction on Count Two. Smith’s argument was that both false statements were made during the same interview and that 1001(a)(2) covers the interview as a whole, not individual statements within it as the unit of prosecution. Finding the statutory language ambiguous, the court applied the rule of lenity and agreed. That is because the current statutory language, which addresses a false “statement or representation” could include both discrete statements and the entire interview. The court noted that while some other courts have reached the opposite conclusion, “none of them have done so in a case where the government’s evidence was so similar in substance.” The court affirmed on all other grounds, including that the district court did not improperly refuse to give an entrapment instruction.

Judge Heytens concurred on the entrapment issue, agreeing that Smith’s theory was “insufficient” to justify an instruction, but noting that “Smith may have been able to establish a valid entrapment defense under another theory – and to caution that similar government conduct may not be countenanced in future cases.” The alternate theory is that the Government agents actually set up the crime with which Smith was charged, as Smith stated a desire to travel to Syria and partake in the civil war (neither criminal acts in and of themselves), but it was a Government informant that brought up ISIS.