PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 09-4620
JOSUE OSMARO GARCIA-OCHOA,
a/k/a Josue O Garcia,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 09-4621
JOSUE OSMARO GARCIA-OCHOA,
a/k/a Josue O Garcia,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(2:08-cr-00104-RGD-JEB-1; 2:08-cr-00153-RGD-JEB-1)
Argued: May 12, 2010
Decided: June 11, 2010
Before WILKINSON and KING, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
2 UNITED STATES v. GARCIA-OCHOA
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge King and Senior Judge Hamilton
joined.
COUNSEL
ARGUED: John Christian Gardner, GARDNER & MEN-
DOZA, PC, Virginia Beach, Virginia, for Appellant. James
Ashford Metcalfe, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:
Neil H. MacBride, United States Attorney, Alexandria, Vir-
ginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Following a bench trial, Josue Osmaro Garcia-Ochoa was
found guilty under 18 U.S.C. §§ 1001 and 1546(a) for falsely
declaring, on several occasions, that he was a "citizen or
national of the United States" or a "lawful permanent resi-
dent" on I-9 Employment Eligibility Verification Forms.
Although the defendant admits to misrepresenting his immi-
gration status in seeking employment, he challenges the suffi-
ciency of the evidence to sustain his convictions, arguing that
his misrepresentations were not material because he was
nonetheless authorized to work in the United States.
The district court rejected the defendant’s claim and con-
cluded that the government had proven materiality beyond a
reasonable doubt. Specifically, the court found that the defen-
dant’s misstatements were material because they were capable
of influencing agency action—affecting, for example, the
Immigration and Custom Enforcement’s enforcement of
immigration laws. On appeal, we likewise reject the defen-
UNITED STATES v. GARCIA-OCHOA 3
dant’s claim. We decline to render the I-9 Form a meaningless
exercise that allows applicants to check any immigration-
status box they wish.
I.
A.
The following facts are those presented at trial and are not
in dispute. The defendant, Josue Osmaro Garcia-Ochoa, was
born in San Salvador, El Salvador in 1975. He entered the
United States in 1998 and subsequently obtained Temporary
Protected Status ("TPS") with authorization to work in the
United States. TPS is an immigration benefit granted by the
Secretary of Homeland Security to citizens of designated
countries suffering specified hardships, such as El Salvador
after its 2001 earthquake. TPS is a temporary status, subject
to expiration or termination; TPS beneficiaries may lose their
status, along with their work authorization, either if they fail
to renew it periodically (approximately every six to eighteen
months) or if the Secretary of Homeland Security revokes
their country’s designation.
As a TPS beneficiary, the defendant was considered an
alien with temporary work authorization. He was neither a
U.S. citizen nor a lawful permanent resident. Since the appeal
of this case, the defendant has lost his status as a TPS alien,
and a deportation proceeding is currently pending in the Exec-
utive Office of Immigration Review. It is uncontested, how-
ever, that when the defendant was applying for jobs, he was
a TPS alien in the United States legally and with authorization
to work.
On three separate occasions in applying for employment,
the defendant made false statements regarding his immigra-
tion status on I-9 Employment Eligibility Verification Forms.
These forms are prepared by the Department of Homeland
Security to satisfy federal statutory requirements and must be
4 UNITED STATES v. GARCIA-OCHOA
completed by all applicants for employment in the United
States. See 8 U.S.C. § 1324a(b). The I-9 Form requires appli-
cants to check one of three boxes, attesting under penalty of
perjury that they are either a "citizen or national of the United
States," or a "lawful permanent resident" (and if so, supplying
their alien identification number), or an "alien authorized to
work until _____" (and if so, providing the expiration date of
their work authorization). The I-9 Form further warns appli-
cants, in bold lettering, that "federal law provides for impris-
onment and/or fines for false statements . . . in connection
with the completion of this form."
In January 2006, the defendant applied for a job with Cen-
tury Concrete in Virginia Beach, Virginia. In doing so, he
filled out the requisite I-9 Form, checking the box to assert
that he was a "citizen or national of the United States." On
Century Concrete’s separate application form, the defendant
incorrectly listed his birthplace as Houston, Texas. Century
Concrete hired the defendant but terminated him after a few
months due to bad performance.
In June 2006, the defendant applied for a job with S.B. Bal-
lard Construction Company, also in Virginia Beach, Virginia.
On his I-9 Form for S.B. Ballard, the defendant falsely
claimed that he was a "lawful permanent resident" and pro-
vided his alien number. In a separate job application form, he
properly informed S.B. Ballard that he was born in El Salva-
dor. S.B. Ballard hired the defendant but removed him from
the employment roster a few months later when he failed to
show for work.
In August 2006, the defendant applied for employment
with Heard Concrete Construction in Chesapeake, Virginia.
Again, he completed an I-9 Form, in which he falsely
declared that he was a "citizen or national of the United
States." He also filled out a separate "special jobs question-
naire," in which he falsely stated he was born in Houston,
Texas. Heard Concrete hired the defendant.
UNITED STATES v. GARCIA-OCHOA 5
Not long thereafter, Heard received a contract to perform
concrete construction work at the Norfolk Naval Base. This
type of work was not out of the ordinary for Heard, which
often works on military bases and other government facilities
where access depends, in part, on an employee’s immigration
status. Federal agents testified that some portions of naval
bases, for example, are "highly sensitive" and contain "critical
infrastructure," such that non-citizens, regardless of work
authorization status, are denied access. Because of these rules,
Heard Concrete’s employees must be screened to ensure that
no unauthorized persons are performing work on off-limits
areas of government property. Based on the defendant’s mis-
statements, however, Heard mistakenly believed the defen-
dant was a U.S. citizen born in the United States. Heard
passed along that information to the Navy, which relied on it
to grant the defendant complete access to its naval bases
throughout the mid-Atlantic region. The defendant was issued
an access badge that was colored green to indicate broad
access. The badge further noted his permission to enter "All
Region Bases" and did not contain the normal notation for
foreign-born persons next to "Naturalization/Visa."
B.
Gradually, the defendant’s misrepresentations began to
unravel and an investigation by special agents within the
Department of State, Immigration and Customs Enforcement,
and the Naval Criminal Investigation Services revealed that
the defendant was, contrary to what he told employers, a TPS
alien born abroad. Consequently, in 2008, the United States
brought criminal charges in two separate cases that have since
been consolidated. Among the charges are those relevant to
this appeal: making false statements to the executive branch
of the federal government in violation of 18 U.S.C. § 1001
and making false statements in immigration documents in vio-
lation of 18 U.S.C. § 1546(a).
After the defendant waived his right to a jury trial, the con-
solidated cases proceeded to a bench trial in the Eastern Dis-
6 UNITED STATES v. GARCIA-OCHOA
trict of Virginia. At the close of the government’s case, the
defendant moved for judgment of acquittal on the basis of
insufficient evidence, arguing that his misstatements were not
material. In the defendant’s view, the sole purpose of the I-9
Form is to verify that an applicant is authorized to work in the
United States, and misstatements of immigration status are
therefore material only when they disguise an applicant’s lack
of work authorization. Because the defendant was work eligi-
ble, and further because employers are legally prohibited from
discriminating against work-eligible applicants on the basis of
their immigration status, the defendant argued that the precise
details of his immigration status were irrelevant and hence
immaterial.
The district court squarely rejected this claim, finding that
the government had proven beyond a reasonable doubt each
element of the crimes, including that of materiality. United
States v. Garcia-Ochoa, 2009 WL 331282, at *6, 11 (E.D.
Va. Feb. 9, 2009). While the court acknowledged that
employers could not deny the defendant employment simply
because he was a TPS alien, it nonetheless found that his mis-
statements satisfied the test for materiality, because "the I-9
Form provides information capable of influencing govern-
mental and executive agency action." Id. at 5-6.
In so finding, the court noted that employers are required
to retain I-9 Forms for several years after hiring an individual,
and that during this time, the I-9 Forms are readily available
for review by government officials from several federal agen-
cies. Id. at *6; see 8 U.S.C. § 1324a(b)(3). The court found
that federal agencies rely on the information contained in the
I-9 Forms in policing both employers and employees and
therefore need that information to be thorough and accurate.
Id. at *6, 11. In this regard, the court cited the testimony of
a Special Agent for Immigration and Customs Enforcement
("ICE"), who reported that "the I-9 Form is frequently used
for investigative purposes in pursuing illegal aliens in this
country." Id. at *6. Accordingly, lest "law enforcement and
UNITED STATES v. GARCIA-OCHOA 7
other governmental agencies be deprived of an important
investigatory tool," the court refused to deem the I-9 Form’s
question about immigration status "inconsequential" and "un-
necessary." Id. at *6, 11. Ultimately, the district court con-
victed the defendant of three counts under 18 U.S.C. § 1001
and two counts under 18 U.S.C. § 1546(a). Id. The court sen-
tenced him to six months’ imprisonment on each count to run
concurrently, three years’ supervised release, and a $100 spe-
cial assessment on each count. The defendant now timely
appeals.
II.
On appeal, Garcia-Ochoa renews his argument that his mis-
statements were not material. Materiality is an essential ele-
ment of the offenses under both 18 U.S.C. § 1001 and 18
U.S.C. § 1546(a). See United States v. Sarihifard, 155 F.3d
301, 306 (4th Cir. 1998). "The test of materiality is whether
the false statement has a natural tendency to influence agency
action or is capable of influencing agency action." United
States v. Norris, 749 F.2d 1116, 1122 (4th Cir. 1984); see
Kungys v. United States, 485 U.S. 759, 770 (1988). This test
applies in numerous contexts, including both §§ 1001 and
1546(a), to assess materiality whenever it is an element of a
statutory offense. See, e.g., United States ex rel. Berge v. Bd.
of Trs. of Univ. of Ala., 104 F.3d 1453, 1460 (4th Cir. 1997).
Our review of the district court’s finding of materiality is
necessarily limited. Materiality, as an element of a criminal
offense, is a question of fact (or at the very least, a mixed
question of law and fact) to be resolved by the fact finder,
which in the case of a bench trial is the federal district judge.
United States v. Gaudin, 515 U.S. 506, 511-12, 522 (1995);
United States v. David, 83 F.3d 638, 641 (4th Cir. 1996). Fol-
lowing a bench trial, we review the court’s factual findings
for clear error. Further, in assessing a challenge to the suffi-
ciency of the evidence, we view the evidence in the light most
favorable to the government in order to decide whether "any
8 UNITED STATES v. GARCIA-OCHOA
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original); see also
United States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009).
Thus, the question before us on appeal is a narrow one:
whether the district court clearly erred in finding that the
defendant’s admitted misrepresentations of his immigration
status on I-9 Forms were capable of influencing agency
action.
In this case, the district court did not err in finding material-
ity. The defendant’s misstatements were capable of influenc-
ing agency action in a number of ways, and by a number of
agencies. We highlight two such examples.
A.
To begin, the defendant’s statements on his I-9 Forms were
capable of affecting the United States Immigration and Cus-
toms Enforcement insofar as ICE relies on I-9 Forms to moni-
tor employers and employees for ongoing compliance with
immigration laws. ICE is an investigative agency within the
executive branch and under the supervision of the Department
of Homeland Security that is responsible for enforcing the
nation’s immigration laws. See United States v. Wu, 419 F.3d
142, 146 n.3 (2d Cir. 2005). As such, ICE’s role encompasses
enforcing the comprehensive statutory scheme, codified in 8
U.S.C. § 1324a and central to federal immigration policy,
which prohibits the employment of unauthorized aliens in the
United States. See Hoffman Plastic Compounds, Inc. v. NLRB,
535 U.S. 137, 147 (2002).
ICE’s principal tool in ensuring compliance with this statu-
tory regime is the employment verification system, of which
the I-9 Form is the backbone. See 8 U.S.C. § 1324a(b); see
also ICE Website, http://www.ice.gov/pi/worksite/index.htm.
Under the employment verification system, applicants for
employment in the United States must complete an I-9 Form,
UNITED STATES v. GARCIA-OCHOA 9
in which they provide basic identifying information and assert
their immigration status, and must supplement the form with
documentation evidencing their claimed identity and immi-
gration status. While ICE relies heavily on employers to ver-
ify applicants’ employment eligibility, employers in turn
depend on applicants to furnish them with true and complete
information on I-9 Forms.
In this sense, the smooth functioning of the entire employ-
ment verification system hinges crucially on the honesty of
employment applicants; by falsifying I-9 Forms, applicants
compromise ICE’s ability to effectively enforce the statutory
prohibition on employing unauthorized aliens. As the First
Circuit noted, the prohibition on false statements in 18 U.S.C.
§ 1001 is "intended to promote the smooth functioning of
government agencies and the expeditious processing of the
government’s business by ensuring that those who deal with
the government furnish information on which the government
confidently may rely." United States v. Arcadipane, 41 F.3d
1, 4 (1st Cir. 1994); accord United States v. Tobon-Builes,
706 F.2d 1092, 1096 (11th Cir. 1983); Ogden v. United
States, 303 F.2d 724, 742 (9th Cir. 1962).
The defendant suggests, however, that the I-9 Form is inca-
pable of influencing government action because it is submit-
ted in the first instance to private employers. This view is
mistaken. The cooperative public-private nature of the
employment verification program does not somehow remove
it from the purview of 18 U.S.C. §§ 1001 or 1546(a). To the
contrary, where Congress has specifically provided for agency
access to I-9 Forms, see 8 U.S.C. § 1324a(b)(3), the fact that
an agency may not avail itself of the opportunity to review
each and every I-9 Form in no way lessens the form’s signifi-
cance. Agencies do not forfeit their power to act merely
because they entrust private entities to assist their enforce-
ment efforts in the first instance.
The defendant is also wrong to contend that his repeated
misrepresentations were incapable of undermining agency
10 UNITED STATES v. GARCIA-OCHOA
action here simply because he was work eligible. Contrary to
defendant’s view, his precise immigration status was relevant
to ICE even though he happened to be, at the time he filled
out the I-9 Forms, authorized to work in the United States.
This is because federal law, under 8 U.S.C. § 1324a(a)(1) &
(2), explicitly makes it illegal not merely to hire unauthorized
aliens but, more broadly, to employ them. As the Supreme
Court has emphasized, "if an employer unknowingly hires an
unauthorized alien, or if the alien becomes unauthorized while
employed, the employer is compelled to discharge the worker
upon discovery of the worker’s undocumented status." Hoff-
man Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 148
(2002) (citing 8 U.S.C. § 1324a(a)(2)).
Accordingly, the exact nature of the defendant’s immigra-
tion status as a TPS alien was material because it signaled that
his work authorization was inherently temporary—in need of
periodic renewal and subject to termination. If and when the
defendant’s status as a TPS alien expired or was revoked, he
would cease to be eligible for employment. And at that point,
ICE would indisputably be capable of acting to prevent his
continued employment in the United States—for example by
bringing charges against his employer if it did not terminate
him. See 8 U.S.C. § 1324a(a)(6)(C), (e), & (f). It is undisputed
that ICE has statutory authority to access the I-9 Form. See 8
U.S.C. § 1324a(b)(3). By concealing his true immigration sta-
tus, the defendant inhibited ICE in its task of ensuring that all
employees in the United States are authorized to work, not
only at the moment they are hired but at all times thereafter.
The very format of the I-9 Form itself confirms this view.
After all, the form does not simply ask: "Do you have work
authorization right now?" Instead, it asks a more nuanced
question that recognizes the importance of the exact immigra-
tion status that allows an applicant to work in the United
States. Specifically, the I-9 Form distinguishes between three
types of applicants, all of whom are employment eligible:
U.S. citizens or nationals; lawful permanent residents; and
UNITED STATES v. GARCIA-OCHOA 11
aliens with temporary authorization. If an applicant selects the
third option, the form further prompts him to disclose the
expiration date of his temporary work authorization.
In this instance, the inclusion of the question is evidence
that its answer is material. Since Congress specifically
required job applicants to disclose their immigration statuses,
and the I-9 Form provided by DHS requires them to specifi-
cally reveal if they are an "alien authorized to work [for a lim-
ited amount of time]," it follows that a false reporting of
information deemed important by the legislature and execu-
tive cannot lightly be deemed unimportant by the courts.
Indeed, the I-9 Form’s question about immigration status con-
stitutes the bulk of the form’s substance, with the remaining
portions requesting the applicant’s name, address, date of
birth, and social security number. The fact that the form
requires applicants to respond under penalty of perjury and
under the threat of criminal liability is further evidence that
the inquiries therein are neither inconsequential nor superflu-
ous.
We must decline therefore the defendant’s invitation to
eviscerate the importance of the I-9 Form’s main inquiry by
overturning the district court’s finding of materiality. As the
district court summarized:
In essence, the Defendant argues this: a false state-
ment on the I-9 Form cannot be material if the appli-
cant is authorized to work in the United States. And
the logical conclusion of this argument requires this
Court to believe that the I-9 Form, issued by the
Department of Homeland Security, is of no legal
consequence. If we were to accept the Defendant’s
argument as true, then it would make the Defen-
dant’s oath on the I-9 Form completely unnecessary.
This cannot be. The I-9 Form is not a useless piece
of paper with a useless statement on it.
12 UNITED STATES v. GARCIA-OCHOA
United States v. Garcia-Ochoa, 2009 WL 331282, at *6 (E.D.
Va. Feb. 9, 2009).
B.
Garcia-Ochoa’s misrepresentation on his I-9 Form to Heard
Concrete is material for an additional reason: it actually
affected the Navy’s action, causing it to issue him an access
badge that it would not have issued him had it known the truth
about his immigration and work authorization status. While
the test for materiality demands only that a misstatement be
capable of influencing agency action, see Kungys v. United
States, 485 U.S. 759, 770-71 (1988); United States v. Arch
Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993), that test is
unquestionably satisfied when, as here, the defendant’s false-
hoods did in fact influence agency action. Actually influenc-
ing an agency to act is proof positive that a statement is
capable of influencing an agency to act.
As the district court noted, several witnesses testified at
trial that "certain portions of Naval bases are highly sensitive"
areas that prohibit unauthorized persons from gaining access
— "regardless of their legal status within this country."
United States v. Garcia-Ochoa, 2009 WL 331282, at *3 (E.D.
Va. Feb. 9, 2009). The Deputy Director for Regional Security
of the U.S. Navy testified, for example, that "there are restric-
tions as to where a non-U.S. citizen can work," such as "[o]n
the ships, the combat information centers, any of the ships
that have nuclear reactors, those areas, the munitions area, the
munitions command—they’re not allowed to work in any of
those areas."
Because these off-limits locales are, according to testi-
mony, "highly sensitive" and contain "critical infrastructure,"
the Navy considers access by unauthorized individuals a
potential security threat. As ICE explains, "[u]nauthorized
workers employed at sensitive sites and critical infrastructure
facilities—such as airports, seaports, nuclear plants, chemical
UNITED STATES v. GARCIA-OCHOA 13
plants and defense facilities—pose serious homeland security
threats." Workforce Enforcement Advisory, http://
www.ice.gov/pi/worksite/index.htm. In order to protect these
vulnerable portions of naval bases, the Department of the
Navy screens all persons prior to granting them clearance.
Here, however, the defendant thwarted the Navy’s screen-
ing process by misrepresenting his immigration status on his
Form I-9. By checking the box on the I-9 Form marking him-
self as a "U.S. citizen or national," especially in combination
with his statement on the "special jobs questionnaire" that he
was born in Texas, the defendant thoroughly confounded
Heard Concrete, leading it to believe that he was a native-
born U.S. citizen. In turn, Heard Concrete conveyed the
defendant’s falsehoods to the Navy for purposes of determin-
ing the defendant’s access to its military installations. As the
superintendent for Heard Concrete testified, "if [I] knew that
[the defendant] was lying about his status . . . I certainly
wouldn’t send him to the U.S. Government for an ID card."
It is uncontested that the Navy relied on the defendant’s
misstatements, as conveyed to it by Heard Concrete, in issu-
ing him an access badge allowing him unrestricted access to
all naval bases throughout the mid-Atlantic region. It is also
undisputed that if the Navy had known that the defendant was
a TPS alien, his badge would have noted limitations on his
access. Fortunately, the defendant’s deceit was discovered
before he began working on any naval bases, but a Navy offi-
cial testified that if he had performed work, he likely would
have done so in those areas where access is limited to U.S.
citizens, given that the defendant’s employer is a concrete
company and that a number of the restricted areas contained
concrete. When misstatements on a Form I-9 influence the
federal government to act in a way that compromises the
safety of military personnel, not to mention the general pub-
lic, those statements are material.
14 UNITED STATES v. GARCIA-OCHOA
III.
Appellant asks us to hold that false claims of citizenship in
the United States of America make no difference. But they do.
The judgment is
AFFIRMED.