UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 19-cr-142-LM Opinion No. 2021 DNH 082 P Nathan Craigue
ORDER
The defendant, Nathan Craigue, is charged in a superseding indictment with
two counts of making a false statement to a federal agent in violation of 18 U.S.C. §
1001(a)(2). Craigue moves to dismiss Count II of the superseding indictment,
arguing, inter alia, that it fails to state an offense.1 See doc. no. 93. The
government objects. For the reasons stated below, the court concludes that Count II
of the superseding indictment fails to state an offense under § 1001(a)(2) and must
be dismissed.
STANDARD OF REVIEW
Federal Rule of Criminal Procedure 12(b)(1) provides that a “party may raise
by pretrial motion any defense, objection, or request that the court can determine
without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Specifically, a challenge
raising “a defect in the indictment,” including the indictment’s “failure to state an
offense,” must be raised in a pretrial motion “if the basis for the motion is . . .
1 Craigue also seeks dismissal of both counts of the superseding indictment
on additional grounds. See doc. nos. 89, 92, 93. The court will address those additional grounds in a separate order. reasonably available and the motion can be determined without a trial on the
merits.” Fed. R. Crim. P. 12(b)(3)(B)(v). When considering a motion to dismiss an
indictment under Rule 12(b), the court must assume the factual allegations in the
indictment to be true. See United States v. Guerrier, 669 F.3d 1, 3-4 (1st Cir. 2011).
BACKGROUND2
As of August 2018, Craigue was the owner and operator of Craigue & Sons
Home Exteriors. In the summer of 2018, the company was hired to perform work on
a property located in Concord, New Hampshire. Craigue tasked two individuals,
Kenneth McKenna and Nicholas Ford, with the project. On August 28, 2018,
McKenna had an accident at the jobsite. He later died from his injuries.
The day of the accident, an officer from the Occupational Safety and Health
Administration (“OSHA”) visited the jobsite and spoke with Craigue. Craigue told
the officer that McKenna and Ford were subcontractors and were not employees of
Craigue or his business.
On October 24, 2018, an OSHA officer questioned Craigue.3 The officer asked
Craigue whether McKenna and another of Craigue’s workers, Christopher Erickson,
2 To the extent the following facts are not alleged in the superseding
indictment, see doc. no. 79, they are drawn from the court’s prior order denying Craigue’s motion to dismiss the original indictment on multiplicity grounds, see doc. no. 27. These facts are not dispositive of the instant motion and are recited only to provide context.
3 It is not clear from the allegations in the superseding indictment whether
the OSHA agent who questioned Craigue in October is the same agent who spoke with Craigue at the jobsite in August.
2 were employees of Craigue’s company. In response, Craigue stated: “I’ve always
treated them – they would come and go as they please, so I would always treat them
as not employees.” Doc. no. 79 at 2.
In 2019, a grand jury indicted Craigue on two counts of making a false
statement to a federal agent in violation of 18 U.S.C. § 1001(a)(2). The government
obtained a two-count superseding indictment in March of 2021. See doc. no. 79.
Craigue now moves to dismiss Count II of the superseding indictment, asserting
that it fails to state an offense.
DISCUSSION
A criminal defendant cannot “be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury,” and has
“the right . . . to be informed of the nature and cause of the accusation.” U.S. Const.
amends. V, VI. An indictment generally satisfies constitutional requirements “if it
specifies the elements of the offense charged, fairly apprises the defendant of the
charge against which he must defend, and allows him to contest it without fear of
double jeopardy.” United States v. Savarese, 686 F.3d 1, 6 (1st Cir. 2012); see also
United States v. Hamling, 418 U.S. 87, 117-18 (1974). Here, the offense charged in
Count II of the superseding indictment is a violation of 18 U.S.C. § 1001(a)(2).
Under that statute, it is unlawful to knowingly and willfully make a materially
3 false statement in a matter within the jurisdiction of the federal government.4 See
18 U.S.C. § 1001(a)(2). Thus, to state an offense under § 1001(a)(2), an indictment
must allege, among other things, that the defendant made a false statement. See
id.; Savarese, 686 F.3d at 6; see also United States v. Sebaggala, 256 F.3d 59, 63
(1st Cir. 2001).
Count II of the superseding indictment alleges:
On or about October 24, 2018, . . . the defendant, Nathan Craigue, in a matter within the jurisdiction of the executive branch of the Government of the United States, namely, an investigation by the Occupational Safety and Health Administration (“OSHA”), U.S. Department of Labor, did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation, by stating to an OSHA Compliance Safety & Health Officer that [McKenna] and [Erickson] were not employees of the defendant or his business, specifically, when the Officer asked him whether [McKenna] and [Erickson] were employees of his company, the defendant stated, “I’ve always treated them – they would come and go as they please, so I would always treat them as not employees,” when, in truth and in fact, as the defendant then and there knew, [McKenna] and [Erickson] were employees and not subcontractors.
Doc. no. 79 at 2 (capitalization and bolding omitted). Stated succinctly, Count II
alleges that Craigue falsely stated McKenna and Erickson were not his employees
by stating that he “always treated” McKenna and Erickson as “not employees.” Id.
Craigue argues that Count II fails to state an offense because the false
statement alleged does not track the statement he is alleged to have made. See doc.
nos. 93; doc. no. 15 at 14. The false statement alleged in Count II is a statement
4 Section 1001 also prohibits the falsification or concealment of a material
fact by a “trick, scheme, or device.” 18 U.S.C. § 1001(a)(1). Count II does not allege that Craigue violated this subsection.
4 that McKenna and Erickson were not Craigue’s employees. However, the statement
Craigue is alleged to have made is a statement that he “treated” McKenna and
Erickson “as not employees.” In light of the discrepancy between the false
statement alleged and the statement he is alleged to have made, Craigue contends
that Count II fails to allege that his statement is false.5
Craigue’s argument has merit. Even if it is objectively true that McKenna
and Erickson were Craigue’s employees, that would not necessarily disprove
Craigue’s statement that he treated them as though they were not. Numerous
courts of appeals—including the First Circuit—have upheld the dismissal of
indictments charging false statement offenses where the government alleges a
falsity which fails to “track” the statement alleged to be false. United States v.
Finucan, 708 F.2d 838, 846-48 (1st Cir. 1983) (“[I]n order for a charge of perjury to
be sustained, the ‘true’ paragraph must ‘track’ the false testimony.” (quoting United
States v. Tonelli, 577 F.2d 194, 199 (3d Cir. 1978))); see Tonelli, 577 F.2d at 198-99
(indictment which alleged that defendant falsely claimed he never “handled the
transmission” of checks by stating that he “never handled any checks” failed to
allege a false statement); United States v. Gatewood, 173 F.3d 983, 986-88 (6th Cir.
5 The court recognizes that Craigue’s argument is a renewal of his contention
that Count II of the original indictment fails to state an offense. The court also recognizes that the court interpreted Craigue’s argument somewhat differently in reviewing the sufficiency of the original indictment. See United States v. Craigue, Crim. No. 19-cr-142-LM, 2020 WL 1027818, at *3 (D.N.H. Mar. 3, 2020). The government was given notice of the court’s current construction and was subsequently afforded an opportunity to respond at a motion hearing on May 11, 2021.
5 1999) (dismissing § 1001 charge alleging that defendant falsely claimed he made
“full payment” to certain subcontractors by certifying “that he had made payments”
to those subcontractors; “[t]he indictment presents a false dichotomy, because
certifying that one has made payments to subcontractors is not inconsistent with
having yet to pay the subcontractors in full”); United States v. Williams, 536 F.2d
1202, 1206-07 (7th Cir. 1976) (dismissing perjury count which alleged that
defendant falsely claimed that she saw her co-defendant’s husband at a particular
address on a particular day by answering “yes” when asked if she “continue[d] to
see” him at that address on that day); United States v. Cowley, 720 F.2d 1037,
1043-44 (9th Cir. 1983) (concluding that perjury count failed to state an offense
where count alleged that defendant falsely claimed he had been given checks by
stating that he had been given an envelope); cf. United States v. Vesaas, 586 F.2d
101, 103 (8th Cir. 1978) (dismissing § 1001 charge alleging that defendant falsely
claimed he did not own property in joint tenancy with his deceased mother;
indictment failed to allege a false statement because it is legally impossible to own
property in joint tenancy with a deceased person); United States v. Good, 326 F.3d
589, 591-92 (4th Cir. 2003) (affirming dismissal of § 1001 charge where indictment
charged defendant with falsely stating she had not been convicted of certain
specified crimes on an employment application; although defendant had been
convicted of embezzlement, embezzlement was not one of the listed crimes).6
6 Not every court of appeals has approved of such a requirement, however.
See . See United States v. Subeh, No. 04-CR-6077T, 2006 WL 219968, at *8
6 In Finucan, a bookkeeper for a used car dealership was charged with perjury
in connection with her testimony before a grand jury. See Finucan, 708 F.3d at 840.
Count Ten of the indictment charged the defendant with falsely claiming that
certain auto registration stamps did not belong to one of the persons who ran the
dealership. See id. at 840, 846; see also id. at 849-51 (quoting the indictment at
length). Count Ten quoted excerpts of her grand jury testimony, alleging that these
excerpts contained the falsity. See id. at 849-51.
However, while the excerpted testimony showed that the defendant made
claims about how the stamps were used and about the sources of her knowledge,
nowhere in those excerpted portions did she claim that the stamps did not belong to
her employer. See id. at 846-47, 850-51. “The charge that she knew who owned the
stamps and lied about her knowledge cannot, of course, be sustained by the fact
that she” made other statements regarding the stamps’ use. Id. Because the
alleged falsity did not “track” the testimony alleged to be false, the First Circuit
concluded that the district court did not err in dismissing Count Ten. Id. at 846-47.
The government argued in Finucan that the indictment was sufficient
because an assertion as to who owned the stamps could be inferred from the
defendant’s excerpted testimony. See id. at 847. While the First Circuit stated that
(W.D.N.Y. Jan. 24, 2006), report and recommendation adopted, 2006 WL 1875407 (W.D.N.Y. July 5, 2006) (noting that, in the Second Circuit, “[t]o the extent that a truth paragraph . . . fails to provide a direct contrast, the truth paragraph should be considered ‘merely surplusage.’” (quoting United States v. Marchisio, 344 F.2d 653, 662 (2d Cir. 1965), overruled on other grounds by United States v. Mandanici, 205 F.3d 519 (2d Cir. 2000))).
7 “[t]his might indeed be a fair implication of the testimony,” it observed that the
statute prohibited the making of statements that are themselves false, not the
making of statements which carry false implications. Id. Thus, where “the
government hinges its charge on the false implications of a statement that is not
alleged to be false in itself,” the indictment fails to state an offense and must be
dismissed. Id. at 847-48.
Here, the deficiencies seen in Count II of Craigue’s superseding indictment
mirror those identified in Finucan. Count II is incoherent. It alleges that an OSHA
officer asked Craigue whether McKenna and Erickson were employees of Craigue’s
company. In response to the officer’s question, Craigue allegedly stated that he
“treated” the two men as “not employees.” Doc. no. 79 at 2. Count II alleges that
this statement constitutes an assertion that McKenna and Erickson “were not
employees of the defendant or his business,” and that this assertion is false because
McKenna and Erickson were, in fact, the defendant’s employees. Id. However, the
indictment presents a “false dichotomy”; even if it is true that McKenna and
Erickson were Craigue’s employees, that would not disprove Craigue’s statement
that he treated them as though they were not. Gatewood, 173 F.3d at 987. And,
while it may be reasonable to infer an implicit assertion as to McKenna and
Erickson’s employment status from Craigue’s express assertion regarding their
treatment, § 1001(a)(2) does not criminalize the making of statements that can be
proven false only by implication. See 18 U.S.C. § 1001(a)(2); Gatewood, 173 F.3d at
987; see also Bronston v. United States, 409 U.S. 352, 359 (1973) (“It is no answer to
8 say that here the jury found that petitioner intended to mislead the examiner. A
jury should not be permitted to engage in conjecture whether an unresponsive
answer, true and complete on its face, was intended to mislead or divert the
examiner . . . .”).
For these reasons, Count II of the superseding indictment fails to allege that
Craigue made a false statement. It therefore fails to state an offense under 18
U.S.C. § 1001(a)(2). See Gatewood, 173 F.3d at 987.
The government resists this conclusion, arguing that Craigue made the
charged statement in response to an OSHA officer’s question and that the issue of
whether his answer was false in light of that question is a matter for the jury. “It is
true that where an answer may or may not be false depending on possible
interpretations of an ambiguous question, it is for the jury to decide whether the”
statement is false. Finucan, 708 F.2d at 848 (emphasis added). Here, however,
analyzing Count II’s sufficiency does not require an assessment of whether the
OSHA officer’s question was ambiguous. Rather, the court’s conclusion stems from
the fact that “the government cannot prove that the defendant’s testimony,
although incomplete and evasive, was . . . actually a false response to the question
posed.” Id. at 847-48; see also Bronston, 409 U.S. at 355 n.3, 359-62 (emphasizing
that nonresponsive answers to official questioning should be remedied through
posing more precise questions, not through criminal prosecutions). Phrased
differently, this is not a case where the defendant argues he cannot be convicted for
making a false statement because the statement he is alleged to have made was, as
9 a factual matter, “literally true,” see, e.g., United States v. Hixon, 987 F.2d 1261,
1265-67 (6th Cir. 1993), and this court’s ruling does not rest on a conclusion that
Craigue’s alleged statement is literally true. Rather, Craigue cannot be made to
stand trial on Count II because Count II fails to allege that his statement was
literally false.
The government notes that Finucan involved a perjury prosecution, whereas
the instant case involves 18 U.S.C. § 1001(a)(2). Indeed, many cases applying a
tracking requirement similar to Finucan involved perjury charges. See, e.g.,
Cowley, 720 F.2d 1037, 1043-44. However, this court has uncovered no authority
for the proposition that the requirement to allege a false statement in order to state
a § 1001(a)(2) offense differs from the requirement to allege a false statement in
order to state an offense under 18 U.S.C. §§ 1621 and 1623. See Subeh, 2006 WL
219968, at *8 n.14 (applying this body of case law to a § 1001(a)(2) prosecution;
noting a dearth of authority suggesting that it should not apply to § 1001). But see
United States v. Boskic, 545 F.3d 69, 92 (1st Cir. 2008) (suggesting the possibility
that this case law may not apply “outside the context of adversary questioning”). It
is notable that the circumstances surrounding Craigue’s alleged statement on
October 24 are analogous to circumstances often seen in perjury prosecutions—
Craigue is alleged to have made the charged statement to a government labor
official in response to that official’s questioning during an investigation that was
preceded by the on-the-job death of one of Craigue’s workers. See doc. no. 79. And,
10 in Gatewood, the Sixth Circuit applied the tracking requirement to an indictment
alleging a violation of § 1001. See Gatewood, 173 F.3d at 986-88.
The government also contends that Craigue’s quoted statement is the
equivalent of stating McKenna and Erickson were not his employees. The
government argues that Craigue’s treatment of the two men determines whether
they were his employees. It is true that an employer’s treatment of his workers is
highly relevant to whether they are properly classified as employees or contractors
under the common law agency test applicable to this prosecution.7 See, e.g., A.C.
Castle Constr. Co., Inc. v. Acosta, 882 F.3d 34, 39 (1st Cir. 2018). However, a
worker may be an employee even if his employer does not afford him all the
treatment to which employees are entitled. Indeed, the government’s case against
Craigue may hinge on the fact that a worker may be correctly classified as an
employee even if his employer does not treat him as an employee by, for example,
providing him with needed tax documents in connection with his wages. Thus, the
government is incorrect in arguing that Craigue’s assertion regarding McKenna and
Erickson’s treatment is equivalent to an assertion that they are not, in fact,
Craigue’s employees.
The court notes, however, that an indictment generally “need not say much”
to adequately set forth the elements of the offense charged, and that inquiries into
7 The court has previously ruled that, in order to determine the employment
status of a worker who was the subject of an allegedly false statement, the jury will apply the multi-pronged common law test for distinguishing contractors from employees articulated in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-34 (1992).
11 an indictment’s sufficiency should not “embrace technical niceties at the expense of
common sense.” United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018). At
the same time, Craigue has a constitutional right to insist that his indictment
allege that he engaged in conduct satisfying each element of the charged offense.
See Hamling, 428 U.S. at 117-18; see also United States v. Lara, 970 F.3d 68, 86
(1st Cir. 2020) (concluding that indictment alleging a violation of 18 U.S.C. § 922(g)
contained a “clear or obvious defect” because, although the indictment alleged that
the defendant acted with the required knowing mens rea, it alleged only that
defendant knowingly possessed firearms, not that he did so with knowledge of his
status as a felon). Under Finucan—which has never been overruled—the
indictment fails to allege a required element of the crime. While the indictment
must be read from a commonsense perspective, the court cannot turn a blind eye to
clear defects. See Lara, 970 F.3d at 86.
In concluding that Count II fails to state an offense, the court does not mean
to suggest that an indictment alleging a violation of § 1001(a)(2) is required to
specify the “objective truth” in contrast to the defendant’s allegedly false statement.
United States v. Butt, 745 F. Supp. 34, 37-38 & n.3 (D. Mass. 1990) (distinguishing
Finucan on this basis); see also United States v. Serola, 767 F.2d 364, 369-70 (7th
Cir. 1985) (identifying a circuit split on the question of whether “an indictment for
perjury is insufficient unless the indictment contains a ‘truth paragraph’ detailing
what the government believes to be the objective truth of the accused perjuror’s
testimony”). Had Count II of the superseding indictment simply alleged that
12 Craigue made a false statement by stating that he treated McKenna and Erickson
as non-employees, without further specification as to what that falsity was, it is
possible that the court’s analysis in this case may be different.8 See United States
v. Portac, Inc., 869 F.2d 1288, 1295-96 (9th Cir. 1989) (holding that, because the
“indictment alleged that these answers were false[,] the opposite truth is apparent
without the need for a particular averment”); Serola, 767 F.2d at 370 (“[W]hen an
indictment . . . contains clear, direct, unambiguous and precise questions and
answers [such] that the nature and extent of the alleged falsity is fairly self-evident,
the defendant has had adequate notice and a ‘truth paragraph’ is not required.”).
For similar reasons, the court cannot cure Count II’s defect by striking the
allegations that Craigue stated McKenna and Erickson were not his employees
when, in truth and in fact, the two men were his employees. Striking these
allegations from Count II would alter the charge against Craigue. See, e.g., United
States v. Dowdell, 595 F.3d 50, 67-68 (1st Cir. 2010) (noting that, while the court
may make “ministerial corrections of clerical errors” in indictments, the
indictment’s “charges may not be broadened through amendment except by the
grand jury itself” (quotation omitted)).
As returned by the grand jury, Count II alleges that Craigue falsely stated
McKenna and Erickson were not his employees. If the court were to strike verbiage
from the indictment such that it would merely allege that Craigue made a false
statement when he stated that he “treated” McKenna and Erickson as non-
8 Such an indictment might, of course, raise other issues.
13 employees, that would change the false statement alleged. Instead of alleging, as
the indictment currently does, that Craigue falsely claimed McKenna and Erickson
were not employees, the altered indictment would allege that he falsely claimed he
treated McKenna and Erickson as non-employees. See Portac, 869 F.2d at 1295-96.
But, for the reasons already discussed, a claim that one treats a worker as a non-
employee is not interchangeable with a claim that the worker is not an employee.
For these reasons, the court concludes that Count II fails to allege that
Craigue’s statement is false. Because a count charging a violation of § 1001(a)(2)
must allege that the defendant made a false statement, Count II fails to state an
offense. It is therefore defective and must be dismissed.
CONCLUSION
Doc. no. 93 is granted in part. Count II of the superseding indictment is
dismissed for failure to state an offense. The court reserves ruling on the other
grounds raised in doc. no. 93. It will address those grounds, as well as Craigue’s
additional motions to dismiss (doc. nos. 89 & 92), in a separate order.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
May 14, 2021 cc: Counsel of Record