On March 3, 1961, the Indictment in the instant action was filed charging the defendant in four counts with violation of 18 U.S.C.A. § 1001 (false statement to an agency of the United States).

The Indictment discloses that defendant’s alleged violation consists in his having made false and fraudulent statements material to the inquiry being conducted by the Special Federal Grand Jury, an agency of the United States, empanelled in May 1960 and sitting at Los Angeles.

Count One alleges that on October 20, 1960, defendant knowingly and willfully stated and represented that he first met one Marvin D. Kobey in April 1957 through referral by the California Employment Office at Huntington Park, California, which statement defendant knew to be false and fraudulent.

Count Two alleges that on December 1, 1960, defendant made the same false statement.

Count Three alleges that on October 20, 1960, defendant knowingly and willfully stated and represented that he was the sole owner and sole investor in Ram Company and in Ram Corporation, which statement defendant knew to be false and fraudulent.

Count Four alleges that on December 1, 1960, defendant knowingly and willfully stated and represented that he had invested all of the capital except $8,000 in Ram Engineering Corp., which statement defendant knew to be false and fraudulent.

The defendant filed a motion to dismiss the Indictment. He contends that there can be no violation of § 1001 unless the false statements are material, and that the Indictment here fails to allege or show the materiality of defendant’s purportedly false statements.

Although the courts are sharply divided, the better view, and that adopted by the Ninth Circuit, is that 18 U.S. C.A. § 1001 has been violated only if the defendant has made a material falsification. Brandow v. United States, 9 Cir., 1959, 268 F.2d 559 ; Weinstock v. United States, 1956, 97 U.S.App.D.C. 365 , 231 F.2d 699 ; Freidus v. United States, 1955, 96 U.S.App.D.C. 133 , 223 F.2d 598 ; Rolland v. United States, 5 Cir., 1953, 200 F.2d 678 , certiorari denied 1953, 345 U.S. 964 , 73 S.Ct. 950 , 97 L.Ed. 1383 ; Todorow v. United States, 9 Cir., 1949, 173 F.2d 439 , certiorari denied 1949, 337 U.S. 925 , 69 S.Ct. 1169 , 93 L.Ed. 1733 ; United States v. Cowart, D.C.D.C.1954, 118 F.Supp. 903 ; United States v. Rice Growers Ass’n of California, D.C.N.D.Cal.1953, 110 F.Supp. 667 . The reason for the requirement of materiality in the false or fraudulent statement, is expressed as follows in Freidus v. United States, supra, at pages 601 and 602 of 223 F.2d:

The Indictment in the instant case does not allege that the false and fraudulent statements made by defendant were material to the inquiry being conducted by the Grand Jury; it is merely alleged that the statements were made in a matter which was material to the inquiry. Of course, the matter in which the false statements were made may be material to the inquiry without the statements, themselves being material.

However, it is not necessary that, the Indictment allege in haec verba that, the false statement was material; it is. sufficient if materiality can be inferred from the facts stated. United States v. Okin, D.C.D.N.J.1955, 154 F.Supp. 553 ; United States v. Lohman, D.C.S.D.Ohio.1953, 127 F.Supp. 432 ; United States v. Cowart, D.C.D.C.1954, 118 F.Supp. 903 ; United States v. J. R. Watkins Company, D.C.Minn.1954, 16 F.R.D. 229 .

The false statement is “material” if it could affect or influence the exercise of a governmental function, Brandow v. United States, 9 Cir., 1959, 268 F.2d 559 , Freidus v. United States, 1954, 96 App.D.C. 133 , 223 F.2d 598 ; or if it is capable of influencing the tribunal in the determination required to be made, Weinstock v. United States, 1956, 97 U.S.App.D.C. 365 , 231 F.2d 699 .

Tested by these criteria, the Indictment does not show the materiality of the false and fraudulent statements allegedly made by defendant. The statements are set forth in detail, but there is absolutely no indication as to the nature and purpose of the inquiry being conducted by the Grand Jury. Thus, it is impossible to tell from the Indictment whether or not defendant’s false and fraudulent statements were material to the inquiry; for all that appears, these statements might have had no effect or influence whatsoever upon the determination of the Grand Jury.

In addition to the contention urged by the defendant that the Indictment is insufficient under § 1001, the Section is not applicable at all under the facts as set forth in the Indictment, as the Grand Jury is not an “agency” as that term is used in § 1001, nor were the defendant’s answers to questions propounded to him “statements” within the meaning of § 1001.

Title 18 U.S.C.A. § 6 defines “agency” as follows:

The following have been held to be “agencies” within § 1001, supra: Federal Bureau of Investigation, United States v. Stark, D.C.Md.1955, 131 F.Supp. 190 ; War Assets Administration, Todorow v. United States, 9 Cir., 1949, 173 F.2d 439 , certiorari denied 1949, 337 U.S. 925 , 69 S.Ct. 1169 , 93 L.Ed. 1733 ; exclusion board in military area established under Executive Order, United States v. Meyer, 2 Cir., 1944, 140 F.2d 652 ; Veterans’ Administration, Sanchez v. United States, 1 Cir., 1943, 134 F.2d 279 , certiorari denied 1943, 319 U.S. 768 , 63 S.Ct. 1325 , 87 L.Ed. 1717 ; Commodity Credit Corporation, Spivey v. United States, 5 Cir., 1940, 109 F.2d 181 , certiorari denied, 1940, 310 U.S. 631 , 60 S.Ct. 1079 , 84 L.Ed. 1401 . Although this list is by no means exhaustive, no case has been found in which there has been a prosecution under § 1001, for false statements made by a witness in the course of proceedings before the federal Grand Jury.

The conduct Congress intended to prevent by § 1001, is the willful submission to federal agencies of false statements calculated to induce agency reliance or action, irrespective of whether favorable agency action has actually resulted. Brandow v. United States, 9 Cir., 1959, 268 F.2d 559 ; United States v. Coastal Contracting & Engineering Co., D.C.Md.1959, 174 F.Supp. 474 ; United States v. Quirk, D.C.E.D.Pa.1958, 167 F.Supp. 462 , affirmed, 3 Cir., 1959, 266 F.2d 26 . The purpose of § 1001 is well stated in United States v. Myers, D.C.N.D.Cal.1955, 131 F.Supp. 525 , at page 531:

The case of United States v. Stark, D.C.Md.1955, 131 F.Supp. 190 , supports defendant’s contention that his replies to questions propounded by the Grand Jury were not “statements” within the meaning of § 1001. There, two contractors were prosecuted under 18 U.S.C.A. § 1001 for having given false answers to ■questions asked by FBI agents who were investigating an alleged bribery attempt. ‘The court first analyzed the nature of the “statement” involved:

'Then, after discussing the legislative history of § 1001, the court at page 205 ■considered the purpose of this section:

Finally, at page 206, the court concluded that defendants’ false answers could not be considered “statements” within the meaning of § 1001:

To the same effect is United States v. Philippe, D.C.S.D.N.Y.1959, 173 F.Supp. 582 , where it was held that the false oral denial by defendant of a suspected source of income made to a special agent of the Internal Revenue Service investigating and interrogating defendant under oath, for possible criminal income tax evasion, did not constitute a “false statement” within the purview of 18 U.S.C.A. § 1001 .

Defendant in the instant case has filed an affidavit stating that he was subpoenaed to appear as a witness before the Grand Jury, that his testimony did not relate to any claim by or on his behalf to obtain or retain any official position in any governmental department or agency, that he sought no advantage from the government, and that he was merely a witness who answered the questions propounded to him.

It will be noted that the basis for counts “One” and “Three” is the Grand Jury interrogation of October 20, 1960, and the basis for counts “Two” and “Four”, the Grand jury interrogation of December 1, 1960. Apparently it is the position of the government that if twenty questions were propounded to the defendant at one hearing and twenty false answers given, it would constitute twenty false “statements” within the meaning of § 1001, and therefore twenty separate crimes.

The defendant has been improperly indicted under 18 U.S.C.A. § 1001 , because the federal Grand Jury is not an “agency of the United States” within the meaning of § 1001, and because this statute was not intended to cover the situation in which defendant is accused of having made a false and fraudulent reply when interrogated by the Grand Jury. In short, defendant should have been charged with perjury and indicted under 18 U.S.C.A. § 1621 .

The defendant’s motion to dismiss the Indictment is granted.

. “§ 1001. Statements or entries generally “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.” . See United States v. Alu, 2 Cir., 1957, 246 F.2d 29 ; United States v. Parker, 7 Cir., 1957, 244 F.2d 943 , certiorari denied 1957, 355 U.S. 836 , 78 S.Ct. 61 , 2 L.Ed.2d 48 ; Dolan v. United States, 8 Cir., 1955, 218 F.2d 454 , certiorari denied 1955, 349 U.S. 923 , 75 S.Ct. 665 , 99 L.Ed. 1255 .