False Claims Against the U.S. Elements of the Offense

A federal jury deciding a charge under 18 U.S.C. § 287 is asked to find a small number of propositions beyond a reasonable doubt. The instructions the district court settles with the parties break the offense into its component parts, and understanding those parts is the difference between an argument that lands and one that sounds like a character reference.

The elements are that the defendant made or presented a claim, that the claim was made or presented to a department or agency of the United States or to a person in the civil, military, or naval service of the United States, that the claim was false, fictitious, or fraudulent, and that the defendant knew the claim was false, fictitious, or fraudulent when it was made or presented.

On this page

Element One: A Claim

A claim is a demand for money or property. It is broader than an invoice, and courts have treated progress payments, cost vouchers, grant drawdowns, requests for equitable adjustment, travel and relocation vouchers, and electronic payment submissions as claims. What matters is whether the document sought payment or property, not what the submitter called it. Documents that report, forecast, or propose without demanding payment sit outside the element, which is why the classification of each charged submission deserves individual attention rather than a blanket assumption.

Element Two: Presentment to the United States

The claim must reach a federal department or agency, or a person in federal service. Direct submission satisfies this plainly. Indirect routes raise a genuine question. Where a subcontractor billed a prime contractor, or where a provider billed an intermediary that in turn sought federal funds, whether the submission became a claim upon the United States depends on how the money moved and on what the government was told. This is a records question first and a legal question second.

Element Three: False, Fictitious, or Fraudulent

These three words are alternatives, and an indictment may rely on any of them. A fictitious claim seeks payment for something that never existed. A false claim may concern real work described inaccurately, billed under the wrong category or contract line, or submitted by an entity that misstated its eligibility. Falsity is measured against what the claim represented, which means the case often turns on identifying precisely which representation the government says was untrue. Where the requirement behind that representation was ambiguous, the falsity analysis and the knowledge analysis merge.

Element Four: Knowledge

The defendant must have known the claim was false when it was made or presented. This is actual knowledge, not carelessness and not a failure to audit one’s own systems. The government proves it circumstantially in most cases, through internal messages, prior warnings, the treatment of similar billings, and the defendant’s role in designing the process. The defense answers with the same kind of evidence pointed the other way: the policies in force, the approvals obtained, the questions asked, and the guidance received.

Whether materiality operates as an additional element under this section, and how a deliberate ignorance instruction may be given, are matters the courts continue to address. Their current state should be confirmed with counsel rather than taken from a summary.

Frequently Asked Questions

Does the government have to prove intent to defraud?

The text of § 287 is written around knowledge that the claim was false, fictitious, or fraudulent, rather than around a separate specific intent to defraud in the way some other fraud statutes are. Courts have described the mental state in different terms in different contexts. Because the framing affects the jury instruction, this is one of the first questions counsel should analyze against current authority in the charging district.

Does the government have to prove a loss?

No. The offense is complete on making or presenting the claim with the required knowledge. Payment, non-payment, and repayment do not change the elements, though they matter a great deal to loss at sentencing and to how a prosecutor evaluates the case.

Is each invoice a separate count?

An indictment may charge separate submissions as separate counts, and it often does. That structure affects trial strategy, because the government must prove the elements for each count charged, and a defendant may have a stronger position on some submissions than on others. It also raises grouping questions at sentencing.

What if the claim was accurate but the certification was not?

A claim can be false because of a representation attached to it rather than because of the dollar figure. Eligibility certifications, compliance representations, and statements about how work was performed have all been treated as the false element. The defense analysis then focuses on what the certification actually required and whether the defendant knew the statement was untrue.

Can a company and an individual both be charged?

Yes, and their positions frequently diverge. A company may seek to resolve a matter in a way that attributes conduct to individuals, while an individual may show the billing was approved and directed at a higher level. Separate representation is usually appropriate from the beginning.

How do the elements shape the first defense steps?

They tell counsel what to gather. Element one calls for the charged documents themselves. Element two calls for the payment flow. Element three calls for the requirement said to have been violated, as it read at the time. Element four calls for everything contemporaneous that shows what the client understood. That is the file a false claims defense is built from.

Mr. Sris and the Firm’s Of Counsel Attorneys

Working an offense element by element is unglamorous and it is what actually narrows a federal case, because it identifies the proposition the government may not be able to prove.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and founded the firm in 1997. He is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. His background at George Mason University in accounting and information systems is applied to complex financial and technology-related cases, which is the category most federal procurement and public-integrity matters fall into. Mr. Sris and the firm’s Of Counsel attorneys, who contract directly with the firm, work on federal criminal matters together.

The firm defends federal procurement and program fraud allegations from the investigative stage through trial and sentencing.

The firm’s Northern Virginia location is at 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209. By appointment. Call (888) 437-7747 to schedule a consultation.

Disclaimers

This page describes the elements of false claims against the United States under 18 U.S.C. § 287 in general terms for people trying to understand a federal process. It is not legal advice, and reading it does not create an attorney-client relationship with Law Offices Of SRIS, P.C. Federal statutes and the decisions interpreting them change over time, so confirm anything stated here against the current statutory text with counsel before acting on it.

Every federal matter turns on facts that belong to that matter alone. Case results depend on a variety of factors unique to each case. Results may vary.

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These are the elements the government must prove. Our page on false claims against the US charges covers the offence as a whole.