False Claims Against the U.S. Defenses

A defense to a false claims charge is built element by element, not as a general story about honesty. Under 18 U.S.C. § 287 the government must prove that a claim was made or presented to a department or agency of the United States, that the claim was false, fictitious, or fraudulent, and that the defendant knew it was false when it was made or presented. Each of those is a separate proposition with its own evidence, and a case can fail on any one of them.

In practice most § 287 defenses concentrate on knowledge, because the documents themselves are usually not in dispute. The invoices exist. The question is what the person who signed them understood at the time, and whether the requirement the government says was violated actually meant what the government now says it meant.

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Knowledge Is the Element That Decides Most Cases

The statute requires actual knowledge of falsity. Negligence is not enough. A mistaken reading of an allowability rule is not enough. A billing system that mapped labor categories incorrectly is not knowledge on the part of the person who relied on its output.

Evidence of state of mind is almost always contemporaneous. The internal accounting policy in force during the billing period, the questions employees asked and the answers they received, the guidance a contracting officer gave, the approvals that moved through the chain, and the disclosure statements filed with the government all speak to what the defendant believed. Reconstructing that record early is the single most valuable defense task in a false claims matter, because memories are contested and documents are not.

The government will often meet a good faith argument with a deliberate ignorance theory, arguing that the defendant suspected falsity and avoided confirming it. How that theory may be presented to a jury, and when the instruction is appropriate, are questions the courts continue to refine, so the current shape of that doctrine should be confirmed with counsel rather than assumed.

Ambiguity in the Underlying Requirement

Federal procurement and grant rules are dense, layered, and frequently amended. Where the requirement a billing supposedly violated was genuinely open to more than one reasonable reading, a submission consistent with one of those readings is not a knowingly false claim. This is a factual argument supported by the regulatory text as it stood, by agency guidance, by the course of dealing between the parties, and sometimes by how the same agency treated identical billings from other contractors.

The argument is stronger where the interpretation was documented before any inquiry began. It is weaker where the reading appeared for the first time after an audit finding. That asymmetry is a reason to capture interpretive decisions in writing while a contract is being performed, long before anyone imagines a criminal case.

Was There a Claim, and Was It Presented to the United States?

Presentment is a real element and it is sometimes contestable. The demand has to be a claim for money or property directed at the federal government. Internal cost reports, forecasts, proposals that were never converted into a payment request, and communications with a private counterparty may not qualify. Where payment flowed through a prime contractor or a pass-through entity, whether the submission became a claim upon the United States depends on how the funds moved and what the government was told, which is a document question before it is a legal one.

Reliance on Counsel or an Accountant

Where a defendant disclosed the relevant facts to a professional and followed the advice received, that reliance can negate knowledge of falsity. The defense has conditions: full disclosure of the material facts, advice that actually addressed the conduct, and conduct that followed the advice given. It also has costs, because raising it generally waives privilege over the subject matter, opening communications the government would not otherwise see. The decision to raise it belongs at the strategy stage, not at trial.

Procedural and Evidentiary Defenses

Not every defense is about the merits. Charging documents that fail to allege the elements, duplicitous or multiplicitous counts, statute of limitations problems, venue defects, grand jury irregularities, and suppression issues arising from how records were obtained all belong in the early motions analysis. In document-heavy cases, motions directed at the government’s summary charts, at the qualifications of a summary witness, and at the admissibility of audit findings offered as proof of falsity often matter more at trial than a headline legal theory.

Frequently Asked Questions

Is good faith a complete defense to a false claims charge?

Good faith negates the knowledge element, and without knowledge the charge fails. It is not a separate excuse layered on top of a proven offense; it is the absence of something the government has to prove. The practical difficulty is evidentiary. Establishing good faith usually depends on records made before anyone was accused of anything, which is why the early document work matters.

Does it help that the agency approved the invoices?

It can help a great deal. Agency approval, acceptance of deliverables, and a contracting officer’s guidance all bear on what the defendant reasonably understood the rules to require. Approval is not a legal bar to prosecution, and the government may argue the approval was itself obtained by a misrepresentation, but the record of what the agency knew and did is core defense material.

What if someone else prepared and submitted the billing?

Then the knowledge inquiry focuses on that person, and on whoever directed or approved the submission. Signature blocks, workflow logs, and system audit trails matter here. A defendant whose role was ministerial, or who relied on figures generated by others working from an approved methodology, has a different position than the person who designed the methodology.

Can an expert help with the regulatory interpretation?

Testimony from a qualified witness on government contract accounting, cost allowability, or industry billing practice is common in these cases and can be central to an ambiguity argument. There are limits on how far such a witness may go toward stating a legal conclusion, and the scope has to be planned with those limits in mind.

Does a voluntary disclosure protect against prosecution?

It does not bar prosecution, but it changes the landscape. A disclosure made before an inquiry began, followed by repayment and corrective action, is evidence about state of mind for the whole billing period and is often a substantial part of a declination argument. Disclosures also have consequences on the civil and administrative tracks, so they should be made with counsel rather than unilaterally.

Is materiality a defense?

Whether materiality is an element the government must prove under this section, and how it interacts with the falsity element, is a question that has been answered differently in different settings, and the law continues to develop. Because of that, it is raised as a preserved argument rather than treated as settled, and its current status should be confirmed with counsel.

How early can these defenses be raised?

Before charges, in a written submission to the prosecutor. That is often when they do the most work, because a knowledge defense supported by contemporaneous records can affect a charging decision in a way it cannot once an indictment is returned. After charging, the same material drives motions, plea discussions, and the loss argument at sentencing.

Mr. Sris and the Firm’s Of Counsel Attorneys

A false claims defense is assembled out of the client’s own contemporaneous records, which means the work begins with an orderly reconstruction of the billing period rather than with a theory.

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 in the Eastern District of Virginia and elsewhere, at the investigative stage as well as after indictment.

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 defenses to a charge 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.

Attorney responsible for this advertising: Mr. Sris. Law Offices Of SRIS, P.C. Call (888) 437-7747 to request a consultation; the firm’s intake line is staffed 24/7.

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These defences apply to one offence. Our page on false claims against the US charges sets out that offence from start to finish.