Not Every Stupid Action is a Crime, 3rd Circuit Court of Appeals Informs Government, USA v. Johnson, 19 F.4th 248 (3rd Cir. 2021) (filed November 23, 2021).
A factually bizarre case, this is a good reminder that not every stupid thing a person does deserves to be charged as a federal crime. Honestly, the overreach here is astonishing. The Third Circuit Court of Appeals did a good thing by reversing this non-violent defendant’s conviction.
Johnson apparently was a bit obsessed with the Bill Cosby sexual misconduct scandal. Surely, he was not alone but perhaps he was a bit overzealous in his efforts to assist Mr. Cosby’s defense. He believed the accusers were lying. As part of his obsession, he pretended to be a lawyer and filed a false document on the civil docket of one of the cases brought against Cosby. This charade was very quickly discovered and—because when you’re a hammer, the world is a nail—the Government promptly federally indicted Johnson for making a false statement and identity theft. I think a referral to a good mental health counselor would likely have been the more fruitful path forward.
In any event, after a three- day trial, Johnson was convicted and sentenced to 32 months in federal prison. On appeal, Johnson argued the evidence adduced at trial was insufficient for a rational jury to conclude his statements were material to the judge (the one presiding over the Cosby civil lawsuit and recipient of the fake document), the only governmental decisionmaker identified by the government at trial.
The statute Johnson was convicted under is 18 U.S.C. §1001 (a very common tool in a federal agent’s arsenal). It makes it illegal, among other things to “knowingly and willfully… mak[ing] any materially false, fictitious, or fraudulent statement or representation” in a matter within the jurisdiction of the federal government. Establishing a violation requires: “(1) that [the defendant] made a statement or representation; (2) that the statement or representation was false; (3) that the false statement was made knowingly and willfully; (4) that the statement or representation was material; and (5) that the statement or representation was made in a matter within the jurisdiction of the federal government.” In short, while federal agents can lie to you about issues that are material, you cannot lie to federal agents about issues that are material.
To be material, a false statement must have “a natural tendency to influence, or be capable of influencing, the decision of the decisionmaking body to which it was addressed.” United States v. Gaudin, 515 U.S. 506, 509 (1995). As the Third Circuit noted, that is the key issue here—that the false statements must have had a bearing on an actual decision entrusted to the decisionmaker, or in this case, the judge presiding over the civil case.
The government’s case falls apart because the record did not contain *any* evidence that any decision entrusted to the judge could possibly have been influenced by the fake document that was filed. Considering the nature of the civil suit, the document that was filed was not even relevant to the claims raised in that litigation (the document was some sort of IRS document that Johnson submitted showed the Cosby accuser lied about money she received). Without evidence of some decision entrusted to the judge that could have been influenced by the fake document, there is no way that document could be “material” under the statute.
In reading this opinion, it’s hard not to conclude that the Third Circuit simply did not think much of the government’s efforts to either bring this case or defend it on appeal. Whenever a Court cites to this following passage from Berger v. United States, 295 U.S. 78, 88 (1935), you have to conclude it’s because it does not believe the government well-enough kept this important admonition in mind: [T]he Government, through the United States Attorney, “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” 19 F.4th at 263.
The government here really overstepped its bounds. Not every malfeasance implicates weighty federal interests. There are plenty of serious federal crimes being committed every day and our federal prosecutors perhaps should more searchingly consider whether their charging decisions advance any real and important federal interest. With more opinions like this, maybe they will.
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