United States v. Hasan

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH June 23, 2010
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-5137

HASAN ALI HASAN,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:05-CR-00174-JHP-1)

Barry L. Derryberry, Research & Writing Specialist, Office of the Federal Public
Defender (Julia L. O’Connell, Federal Public Defender, with him on the brief),
Tulsa, Oklahoma, for Defendant-Appellant.

Stephen L. Sewell, Assistant United States Attorney, Northern District of
Oklahoma (David E. O’Meilia, United States Attorney, and Leena Alam,
Assistant United States Attorney, with him on the brief), Tulsa, Oklahoma, for
Plaintiff-Appellee.

Before HENRY, SEYMOUR, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

A jury convicted Hasan Ali Hasan on three counts of perjury. He now

appeals that conviction on two bases. First, Mr. Hasan alleges that the
government violated his rights under the Court Interpreters Act (“CIA”), 28

U.S.C. § 1827, by failing to provide him with an interpreter when he appeared on

two occasions before a grand jury. Second, he contends that there was not

sufficient evidence for a reasonable jury to convict him of perjury beyond a

reasonable doubt.

This is the second time that Mr. Hasan has appeared before us with these

claims. The first time, in United States v. Hasan (Hasan I), 526 F.3d 653, 656

(10th Cir. 2008), we concluded that the district court plainly erred by failing to

consider whether Mr. Hasan was entitled under the CIA to an interpreter at his

grand jury appearances, and we remanded for the district court to answer this

question in the first instance. On remand, the district court held that Mr. Hasan

was not entitled to an interpreter under the CIA.

We are asked now to review that determination. Because we conclude that

the district court did not apply the proper legal standard in its CIA analysis, we

must remand again for it to determine in the first instance whether Mr. Hasan

“speaks . . . primarily a language other than the English language.” 28 U.S.C.

§ 1827(d)(1)(A). Concerning Mr. Hasan’s argument that his convictions are not

supported by sufficient evidence, we conclude that a reasonable jury could find

beyond a reasonable doubt that he committed perjury. Thus we VACATE in part,

AFFIRM in part, and REMAND to the district court for further proceedings.

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 BACKGROUND

The facts of this case are presented in detail in Hasan I, so we review them

here only briefly. Mr. Hasan was 17 years old in 1997 when he fled his native

Somalia for the United States. He was granted asylum in this country that same

year. In 2004, for reasons that are not clear, authorities developed a renewed

interest in Mr. Hasan’s history, and he was interviewed on two occasions by

federal law enforcement agents regarding inconsistencies in the information he

provided when he entered the United States and when he sought asylum.

In 2005, a grand jury was empaneled to investigate whether Mr. Hasan had

violated 18 U.S.C. § 1001 by making false statements during one of the agent

interviews. Mr. Hasan testified before this grand jury in April 2005 and before a

second grand jury in November 2005. He did not consult a lawyer in connection

with the grand jury appearances, and the supervising Assistant United States

Attorney did not offer Mr. Hasan an interpreter.

In December 2005, Mr. Hasan was indicted on four counts of perjury. He

was not charged under 18 U.S.C. § 1001 for statements made during the agent

interviews but rather under 18 U.S.C. § 1623 for alleged inconsistencies between

statements made before the April grand jury and statements made before the

November grand jury.

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 During pretrial proceedings, Mr. Hasan moved pursuant to Federal Rule of

Criminal Procedure 28 1 for the appointment of an interpreter at trial. The district

court held an evidentiary hearing on Mr. Hasan’s language abilities, considering

testimony from a linguist, a probation officer, and a federal agent, each of whom

had interviewed him. Before the district court ruled, Mr. Hasan filed another

motion offering the CIA 2 as an additional basis for an interpreter at trial.

1
That rule provides: “The court may select, appoint, and set the
reasonable compensation for an interpreter. The compensation must be paid from
funds provided by law or by the government, as the court may direct.” Fed. R.
Crim. P. 28.
2
The relevant section of the CIA, 28 U.S.C. § 1827(d)(1), provides:

(d)(1) The presiding judicial officer . . . shall utilize the
services of the most available certified interpreter . . . in
judicial proceedings instituted by the United States, if the
presiding judicial officer determines on such officer’s own
motion or on the motion of a party that such party (including a
defendant in a criminal case), or a witness who may present
testimony in such judicial proceedings—

(A) speaks only or primarily a language other than
the English language; or

(B) suffers from a hearing impairment (whether or
not suffering also from a speech impairment)

so as to inhibit such party’s comprehension of the proceedings
or communication with counsel or the presiding judicial
officer, or so as to inhibit such witness’ comprehension of
questions and the presentation of such testimony.

The phrase “judicial proceedings instituted by the United States” includes grand
jury proceedings. 28 U.S.C. § 1827(j); see Hasan I, 526 F.3d at 662 (stating that
“the CIA admits no distinction between the grand jury and trial contexts”).

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 The district court denied the request for an interpreter, concluding that Mr.

Hasan “d[id] not speak only or primarily a language other than English.” R., Vol.

I, Doc. 56, at 5 (Order, filed Mar. 13, 2006) (emphasis omitted). The court

stated:

the evidence is overwhelming that although the defendant is
originally from Somalia, he left that country when he was 17
and came to the United States. Since being in the United
States for approximately (9) years, the defendant has been
employed both as a security guard and a school bus driver,
both occupations which would require him to communicate in
English. Additionally, Mr. Hasan testified before the grand
jury on two separate occasions in English. While Mr. Hasan
stated on several occasions, during his grand jury testimony,
that he did not understand what the prosecutor meant or did
not understand particular terms, Mr. Hasan admits in his grand
jury testimony that he has taken five English proficiency
courses and that he did well in these courses. Furthermore,
when questioned by the probation department, after being
advised that he was entitled to an interpreter if he spoke only
or primarily a language other than English, the defendant
indicated he understood and communicated in English and did
not want an interpreter during his interview or at any further
interview or hearing.

Id. at 4. Based on these and other factors, the district court concluded that Mr.

Hasan was not entitled to a court-appointed interpreter.

Several weeks later, and about one month before trial began, the district

court sua sponte reversed itself and appointed an interpreter for Mr. Hasan at

trial. Pointing to the fast pace of trial and to indications that Mr. Hasan was

struggling to communicate with his attorney, the court stated that “the best way to

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ensure that the defendant’s constitutional rights are protected is to appoint an

interpreter.” R., Vol. I, Doc. 85, at 8 (Order, filed Apr. 12, 2006).

The jury convicted Mr. Hasan on three of the four counts of perjury. He

was sentenced to a fifteen-month term of imprisonment and a three-year term of

supervised release. He appealed, arguing that the transcripts of his grand jury

testimony should have been suppressed because the government violated the CIA

by failing to offer him an interpreter during his grand jury appearances. This

argument was new; although Mr. Hasan had previously argued that the lack of an

interpreter at the grand jury hearings violated his Fifth Amendment rights, and (as

discussed above) argued for an interpreter at trial pursuant to the CIA, he had

never contended that he was entitled under the CIA to an interpreter at the grand

jury proceedings.

Nonetheless, in Hasan I we perceived plain error in the district court’s

“apparently inconsistent application of the CIA.” 526 F.3d at 661. We reasoned

as follows: When it initially denied Mr. Hasan’s motion for an interpreter at trial,

the district court found that his primary language was English under the statute.

Id. But then the court reversed itself and provided Mr. Hasan with an interpreter

for trial. Id. If it did so because the court changed its mind on whether Mr.

Hasan spoke “primarily a language other than the English language,” then Mr.

Hasan also might have been entitled under the CIA to an interpreter at the grand

jury proceedings. Id. at 662. We held that the district court plainly erred by

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“leaving unresolved apparently contradictory rulings on issues of similar

consequence,” id. at 663, and remanded for the court to “ascertain whether the

factors that motivated it to reconsider its ruling about the necessity of an

interpreter at trial also pertain to the grand jury context,” id. at 656.

On remand, before Mr. Hasan filed any motions and without an additional

hearing to ascertain his English-language abilities at the time of the grand jury

proceedings, the district court issued a three-page order finding that the lack of an

interpreter before the grand jury had not violated Mr. Hasan’s rights under the

CIA. The district court rejected the notion that it had been inconsistent in

applying the statute, clarifying that it had appointed an interpreter at trial not

under the CIA but instead pursuant to Rule 28 “because of the pace that the trial

would, out of necessity, proceed.” R., Vol. I, Doc. 180, at 2 (Order, filed July 3,

2008). The court denied Mr. Hasan’s subsequent motion to reconsider this ruling.

Mr. Hasan has appealed the district court’s rejection of his CIA claim. In

addition, Mr. Hasan contends that his convictions must be set aside because the

evidence at trial was not sufficient for a reasonable jury to find him guilty beyond

a reasonable doubt. We have jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

We will first consider Mr. Hasan’s claims under the CIA and then turn to

the sufficiency-of-the-evidence arguments.

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I. MR. HASAN’S CLAIMS UNDER THE CIA

Mr. Hasan argues that his grand jury testimony should not have been

admitted at trial because the government violated the CIA by failing to provide

him with an interpreter before the grand jury. 3 We conclude that the district court

failed to apply the proper legal standard when it rejected Mr. Hasan’s CIA claim.

Thus, we must remand for the district court to apply the correct law to the facts in

the first instance.

A. Standard of Review

“‘We review the trial court’s determination with respect to the appointment

. . . of an interpreter only for an abuse of discretion.’” United States v. Black,

369 F.3d 1171, 1174 (10th Cir. 2004) (ellipsis in original) (quoting United States

v. Urena, 27 F.3d 1487, 1492 (10th Cir. 1994)). This rule is appropriate

“[b]ecause the trial judge is in the best position to assess a defendant’s or

witness’ language usage, comfort level and intelligibility.” United States v.

Osuna (Osuna I), 189 F.3d 1289, 1296 (10th Cir. 1999) (Brorby, J., dissenting).

Under the abuse-of-discretion standard, we review the district court’s factual

determinations for clear error, see, e.g., Cooter & Gell v. Hartmarx Corp., 496

U.S. 384, 401 (1990) (“A court of appeals would be justified in concluding that a

3
The government does not dispute that suppression of the grand jury
transcripts is the proper remedy if we conclude that Mr. Hasan’s rights under the
CIA were violated. Nor does the government dispute that, if the transcripts are
suppressed, the indictment must be dismissed and Mr. Hasan’s convictions
vacated. See Hasan I, 526 F.3d at 662 n.6.

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district court had abused its discretion in making a factual finding only if the

finding were clearly erroneous.”), and its underlying legal determinations de

novo, see, e.g., Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202 (10th

Cir. 2008) (“Where the exercise of that discretion [to award sanctions] depended

on the resolution of a purely legal issue, however, we approach such a question de

novo.). “‘An abuse of discretion occurs when the district court bases its ruling on

an erroneous conclusion of law,’” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th

Cir. 2007) (quoting Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1165

(10th Cir. 1998)), or “where the trial court fails to consider the applicable legal

standard,” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997); see also In

re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (“‘When the

district court errs in deciding a legal issue, it necessarily abuses its discretion.’”

(quoting In re Qwest Commc’ns Int’l Inc., 450 F.3d 1179, 1184 (10th Cir.

2006))).

B. The Court Interpreters Act

In Hasan I, we articulated a two-step framework for analyzing Mr. Hasan’s

claim under the CIA. First, the district court was to determine “whether, at the

time of the grand jury hearings, Mr. Hasan spoke ‘only or primarily a language

other than the English language.’” 526 F.3d at 666 (quoting 28 U.S.C. §

1827(d)(1)(A)). Second, if Mr. Hasan’s primary language was other than English,

then the district court was to determine whether the lack of an interpreter

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inhibited his comprehension or communication “to such an extent as to have made

the [grand jury hearings] fundamentally unfair.” Id. (quoting Osuna I, 189 F.3d

at 1293).

Concerning the first step—whether Mr. Hasan spoke “primarily”

English—we stated:

As the district court correctly perceived, this inquiry is not
resolved simply by asking whether Mr. Hasan’s native
language is other than English. Neither do we think the statute
concerns itself with primacy in the sense of which language
the defendant speaks most frequently; instead, it seems to us
that the term “primarily” in this statute seeks to measure the
defendant’s comparative ability to speak English.

The Oxford English Dictionary defines the word
“primarily” as “[i]n the first order in time or temporal
sequence,” or as “[w]ith reference to other than temporal
order: In the first place, first of all, preeminently, chiefly,
principally; essentially.” XII Oxford English Dictionary 472
(2d ed. 1989). While the former definition could suggest
“native language,” or the language first learned, we believe the
structure of the statute makes clear that Congress intended the
latter definition of the term focused on comparative ability.
The CIA extends the right to an interpreter to two classes of
people: those who speak only or primarily a language other
than English, and the hearing impaired. 28 U.S.C.
§ 1827(d)(1)(B). The fact that the right is extended to the
hearing impaired suggests that Congress was not concerned
about the frequency with which one speaks English, or whether
one is a native speaker; a hearing impaired person in the
United States might well be a native English speaker and speak
English on a daily basis, but might not be able easily to
understand or communicate in English. Thus, it seems to us
the question the statute poses concerns the ability to
communicate. Confirming this conclusion, reading the word
“primarily” to mean “native” would violate a cardinal rule of
statutory construction by rendering surplusage the word “only”

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 in the statutory phrase “only or primarily a language other than
English.” Whether a witness’s native language was the only
language he spoke would be irrelevant, because a witness able
to speak only a language other than English would always have
as his native language a language other than English.

Hasan I, 526 F.3d at 666 (brackets in original) (third citation omitted).

C. Application to Mr. Hasan’s Case

As noted above, after remand the district court concluded under this first

step that Mr. Hasan’s primary language was English. In explaining this

conclusion, the court stated:

There should be no doubt from all of the factual findings
previously entered herein that the primary language utilized by
the Defendant in the performance of his daily life functions
was English. Specifically, the evidence was uncontroverted
that the Defendant communicated with 1) his employers, 2)
students on his bus routes and 3) his wife, in English.

R., Vol. I, Doc. 180, at 2 n.2. As further support for its finding, the district court

pointed to “the fact that the Defendant waived the services of an interpreter when

he was interviewed by [a] probation officer shortly after the grand jury

proceedings.” Id. at 3.

Mr. Hasan now argues that the district court failed to apply the law as we

set it out in Hasan I. According to Mr. Hasan, the district court’s focus on his

communication with his employers, his students, and his wife ignores our

instructions that the word “primarily” in the CIA is not to be treated as

conterminous with “most frequently.” Aplt. Br. at 30. Indeed, his employers,

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students, and wife do not speak the Somali language, and Mr. Hasan contends that

“the necessity to speak with them in English or forego communication does not

rationally point to primacy of English skills over Somalian.” Id. Whether the

district court properly applied the requisite standards under the CIA is a legal

question which we review de novo. “We will not give deference to the district

court’s opinion.” Office of Thrift Supervision v. Overland Park Fin. Corp. (In re

Overland Park Financial Corp.), 236 F.3d 1246, 1251 (10th Cir. 2001).

We agree with Mr. Hasan that the district court failed to apply the correct

legal standard. As highlighted above, the district court considered several

indicators suggesting that Mr. Hasan regularly spoke English. But it did not

weigh these indicators against contrary indicators of his Somali-language ability.

In other words, despite the blueprint we provided in Hasan I, the district court did

not seek to measure Mr. Hasan’s comparative ability to speak the language. This

is a legal error amounting to an abuse of discretion. There is no doubt that Mr.

Hasan used English in some circumstances—perhaps even most circumstances.

But under the proper legal standard, such a fact does not necessarily entail a

finding that his primary language was English, especially in light of the “welter

of conflicting evidence” on Mr. Hasan’s language abilities. Hasan I, 526 F.3d at

663. This is precisely why we insisted on a comparative standard in the first

place, and why it is crucial for the district court to analyze Mr. Hasan’s language

abilities under this standard.

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 D. Necessity of a Remand

When the court of appeals notices a legal error, it is not ordinarily entitled

to weigh the facts itself and reach a new conclusion; instead, it must remand to

the district court for it to make a new determination under the correct law. See

Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982) (“[W]here findings are

infirm because of an erroneous view of the law, a remand is the proper course

unless the record permits only one resolution of the factual issue.”); Hicks v.

Gates Rubber Co., 833 F.2d 1406, 1414–17 (10th Cir. 1987) (applying Pullman-

Standard). We will follow just such a course here, for we cannot say that the

record supports only one conclusion as to whether Mr. Hasan spoke primarily

English. See Pullman-Standard, 456 U.S. at 292. To the contrary, as noted above

and as discussed in Hasan I, the record is highly conflicted on this point. See

Hasan I, 526 F.3d at 663.

In Hasan I, we explained that the CIA contemplates a two-step, sequential

inquiry. 526 F.3d at 666–67. In providing remand guidance to the district court,

we described the inquiry as follows:

First, it should consider whether, at the time of the grand jury
hearings, Mr. Hasan spoke “only or primarily a language other
than the English language.” 28 U.S.C. § 1827(d)(1)(A). . . .

....

Second, if the district court finds that at the time of the
grand jury proceedings Mr. Hasan’s primary language was
other than English, it must determine whether the lack of an

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 interpreter during his testimony inhibited his “comprehension
of the proceedings or communication with . . . the presiding
judicial officer, [or his] comprehension of questions and the
presentation of . . . testimony, 28 U.S.C. § 1827(d)(1), “to such
an extent as to have made the [hearing] fundamentally unfair,”
Osuna, 189 F.3d at 1293.

Id. (alterations in original).

Thus, Hasan I leaves no room for doubt that the CIA contemplates a

sequential, two-step inquiry. We do recognize, however, that just because a

multi-step test is logically sequential does not necessarily mean that the test

establishes a “rigid order of battle” that requires a court to decide the first step of

the test before reaching the others. Pearson v. Callahan, 129 S. Ct. 808, 817

(2009) (internal quotation marks omitted); see id. at 818 (holding that it was not

mandatory for courts to resolve the first step of the qualified immunity test (i.e.,

whether the facts alleged or shown by plaintiff establish a violation of a

constitutional right) before deciding the second step (i.e., whether any such

constitutional right was clearly established at the time of the alleged violation));

see Strickland v. Washington, 466 U.S. 668, 697 (1984) (establishing the familiar

two-step test for adjudicating ineffective-assistance-of-counsel claims, but noting

that “a court need not determine whether counsel’s performance was deficient

[i.e., step one] before examining the prejudice suffered by the defendant as a

result of the alleged deficiencies [i.e., step two]”).

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 We have not directly addressed whether it is mandatory to move

sequentially through the CIA’s two-step test or whether a court may assume

arguendo an affirmative answer to the first step and then proceed to resolve the

second step. In Hasan I, we did describe the district court’s undertaking of the

second step of the CIA’s test in conditional terms, stating “if the district court

finds that at the time of the grand jury proceedings Mr. Hasan’s primary language

was other than English,” then it must resolve the second step of the CIA’s test.

526 F.3d at 666 (emphasis added). In other words, we arguably suggested that a

necessary condition for undertaking an inquiry under the second step is an

affirmative finding under the first step (i.e., a finding that defendant speaks only

or primarily a language other than English). However, we also noted there that

“either” step of the CIA analysis “may be dispositive if not resolved in Mr.

Hasan’s favor.” Id. In Osuna I, we did not address in discrete, sequential fashion

the CIA’s two-part test—leaving our view of the order-of-battle question

nebulous at best.

Thus, we have not had occasion to squarely address the order-of-battle

issue under the CIA. It certainly would not be unreasonable, in light of its plain

language and structure, to interpret the CIA as requiring the court to resolve the

first step of the CIA’s two-step test before proceeding to the second step. For

example, as relevant here, the CIA’s plain language does not evince a

congressional concern with providing interpreter protections for all conceivable

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circumstances that could inhibit the comprehension or communication of a party

or witness, but rather with those circumstances related to mastery of the English

language. See Hasan I, 526 F.3d at 666 (“The CIA extends the right to an

interpreter to two classes of people: those who speak only or primarily a

language other than English, and the hearing impaired.”); Osuna I, 189 F.3d at

1293 (“While Osuna’s rapidity in speaking was one apparent cause of the

difficulties, the protection of the Court Interpreters Act to alleviate language

problems may not be disregarded.”); Osuna I, 189 F.3d at 1296 (Brorby, J.,

dissenting) (“None of these communication pitfalls is related to primary use of a

language other than English. Read as a whole, Mr. Osuna’s testimony simply

does not suggest the district court abused its discretion in failing to apply the

Court Interpreters Act.”). Thus, arguably a court could not meaningfully and

intelligently engage in the second-step comprehension-and-communication

inquiry that the CIA contemplates without first knowing whether there is a

language problem to begin with—viz., whether the party or witness speaks only or

primarily a language other than English. Cf. Pearson, 129 S. Ct. at 818 (“‘It

often may be difficult to decide whether a right is clearly established without

deciding precisely what the constitutional right happens to be.’” (brackets

omitted) (quoting Lyons v. City of Xenia, 417 F.3d 565, 581 (6th Cir. 2005)

(Sutton, J., concurring))).

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 The parties do not advance any arguments concerning whether the CIA

requires mandatory application of its sequential, two-step test. In particular,

neither party has asked us to assume arguendo that Mr. Hasan has prevailed at the

CIA’s first-step inquiry (i.e., that he has established that his primary language is

Somali), and then to proceed to the inquiry’s second step. Without briefing and

argument from the parties, we think it would be inappropriate for us to resolve

here this order-of-battle question. Therefore, we do not address the matter

further. Guided by Pullman-Standard, we simply conclude that findings under

the proper legal standard by the district court at the first step of the CIA’s test are

a necessary condition for our review and, accordingly, a remand is required.

Having established the necessity for it, we provide guidance to the district

court upon remand: First the district court should follow the blueprint laid out in

Hasan I and undertake a comparative analysis to identify Mr. Hasan’s primary

language at the time of the grand jury proceedings. If the court concludes that

Mr. Hasan spoke primarily English, its analysis should come to an end, for he is

not entitled to relief under the CIA. If the district court concludes that Mr. Hasan

spoke primarily Somali, then it should proceed to the next step and determine

whether, in light of this determination, Mr. Hasan was inhibited in his ability to

comprehend and communicate at the grand jury proceedings to such an extent as

to have been fundamentally unfair.

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 In sum, we hold that the district court abused its discretion by failing to

employ the proper legal standard in determining whether, at the time of the grand

jury proceedings, Mr. Hasan spoke primarily a language other than the English

language. We remand for the district court to apply the correct law in the first

instance. 4

II. MR. HASAN’S CLAIMS OF INSUFFICIENT EVIDENCE

Mr. Hasan also raises several challenges to the sufficiency of the evidence

underlying his three perjury convictions, 5 arguing that no reasonable jury could

4
During oral argument, Mr. Hasan’s counsel resisted the possibility of
a remand, although acknowledging that it would be proper for us to do so, if we
concluded that the district court applied the wrong legal standard at the first step
of the CIA’s inquiry. Significantly, defense counsel pointed to practical concerns
related to the short duration of Mr. Hasan’s sentence (i.e., fifteen months of
imprisonment and three years of supervised release) and asserted that the district
court would have no institutional advantage over us in undertaking the CIA’s two-
step inquiry because the central piece of evidence for consideration is the cold
grand jury transcripts. Given that Mr. Hasan was sentenced on August 27, 2008,
his sentence—including his three-year term of supervised release—would
seemingly not be over in the very near future, nor has Mr. Hasan’s counsel
informed us of anything to the contrary. Furthermore, especially with respect to
the first-step of the CIA’s inquiry regarding Mr. Hasan’s primary language, a
court reasonably may inform its determination with evidence beyond the grand
jury transcripts, including testimonial evidence from individuals who interacted
with Mr. Hasan. And the district court was present to hear precisely such
testimony at the trial, and we were not. Therefore, Mr. Hasan’s institutional-
advantage contention is questionable. In any event, as discussed above, under the
prevailing law we are obliged to remand this case to the district court.
5
Because we conclude that the district court abused its discretion in
applying the CIA, we remand this case. In such a circumstance, at least in some
instances, we have declined to reach sufficiency-of-the-evidence arguments and,
in fact, took that path in Mr. Hasan’s first appeal. See Hasan I, 526 F.3d at 667
n.8. However, frequently, decisions concerning whether to reach additional

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issues, as here, are matters of discretion. They must be made in light of the
particular factual circumstances before the court at the time. In this second
iteration of Mr. Hasan’s appellate proceedings, we conclude that principles of
efficient judicial administration militate in favor of our exercising discretion to
reach Mr. Hasan’s sufficiency-of-the-evidence arguments at this time. Cf.
Ohlander, 114 F.3d at 1538 (noting that “the district court’s failure to apply the
correct legal standard could serve as a basis for remand” but concluding that “the
interest of efficiency and judicial economy” counseled in favor of exercising
discretion to “turn to the merits”).

We offer no opinion or prediction concerning the ultimate outcome of the
district court’s CIA analysis. Mr. Hasan may prevail on his CIA claim before the
district court; in that event, his prosecution would come to an end, irrespective of
the merits of his sufficiency-of-the-evidence arguments. See supra note 3.
However, it also is possible that the district court will resolve the CIA issues in a
way that keeps the sufficiency-of-the-evidence issues alive and would likely
oblige this court to resolve those issues in a future appeal. In particular, under
the proper legal analysis, the district court could conclude that Mr. Hasan cannot
succeed on his CIA claim and, thus, the transcripts need not be suppressed and
Mr. Hasan’s convictions may remain intact. Given that the parties have now
briefed the sufficiency-of-the-evidence arguments twice, and that we have a
sufficient record to resolve those arguments, we conclude that it is a prudent and
proper exercise of our discretion to reach the sufficiency-of-the-evidence
arguments now.

In this regard, Osuna I provides useful guidance. There, we ordered a
remand to the district court to “determine from the trial record whether lack of an
interpreter inhibited Osuna’s comprehension of the proceedings or his ability to
assist in presenting his case to the jury.” 189 F.3d at 1293. Nevertheless, we
proceeded to reach and resolve Mr. Osuna’s contention of sentencing error. Id. at
1294–95. We acknowledged that on remand the district court could conclude that
Mr. Osuna was entitled to prevail on his CIA claim and, in that event, “the
convictions must be set aside for a new trial.” Id. at 1294. In that circumstance,
we had to recognize that the merits of Mr. Osuna’s sentencing challenge would be
rendered largely irrelevant: Mr. Osuna either would be acquitted in the new trial,
eliminating the need for a new sentencing; or he would be convicted in a new
trial, resulting in a new sentencing proceeding where, not only would the district
court address sentencing issues anew, but it also undoubtedly would be aware that
on appeal the government had “confess[ed] error,” id. at 1294–95, concerning Mr.
Osuna’s sentencing challenge. However, we understood that it was possible that

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have found him guilty beyond a reasonable doubt because the government failed

to establish certain statutory elements. First, he contends that the government did

not present sufficient evidence that he made irreconcilably contradictory

statements at the grand jury hearings. Second, he argues that there was not

sufficient evidence to prove the materiality of his allegedly inconsistent

statements. We reject all of these arguments.

A. Standard of Review

“Whether the government presented sufficient evidence to support a

conviction is a legal question that we review de novo.” United States v. Parker,

551 F.3d 1167, 1172 (10th Cir. 2008) (internal quotation marks omitted). With

on remand the district court could rule against Mr. Osuna on his CIA claim,
which would keep the convictions intact and keep his sentencing challenge alive;
therefore, we elected to reach the sentencing challenge at that time. Id. at 1294 &
n.6. Specifically, we stated that “[s]ince the remand we make may result in the
convictions being undisturbed, we will go ahead and consider this claim of error
in sentencing.” Id. at 1246 n.6 (emphasis added).

Osuna I supports our decision to reach the merits of Mr. Hasan’s
sufficiency-of-the-evidence arguments. Like Osuna I, we proceed to reach the
merits even after finding that remand is required on the CIA issue in part due to
the possibility that the merits issue may still be viable if the district court rules
against Mr. Hasan on his CIA claim. And, akin to Osuna I, we do this even
though a contrary district court ruling in favor of Mr. Hasan on his CIA claim
may render our merits decision essentially for naught. Furthermore, what
appeared to tacitly guide us in Osuna I, does so expressly here: that is, principles
of efficient judicial administration. We seek to negate the possible need for the
parties to brief and argue for a third time on appeal the sufficiency-of-the-
evidence arguments that are currently before us. We underscore that our decision
to reach the merits is discretionary and governed by the unique circumstances of
this case. On that basis, we turn to Mr. Hasan’s sufficiency-of-the-evidence
arguments.

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that said, “the restrictive standard of review for a sufficiency of the evidence

question provides us with very little leeway.” United States v. Evans, 970 F.2d

663, 671 (10th Cir. 1992).

[W]e view the facts in evidence in the light most favorable to
the government. We will not weigh conflicting evidence or
second-guess the fact-finding decisions of the jury. Rather,
our role is limited to determining whether a reasonable jury
could find guilt beyond a reasonable doubt, based on the direct
and circumstantial evidence, together with the reasonable
inferences to be drawn therefrom.

United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007) (internal quotation

marks omitted).

For all of his sufficiency-of-the-evidence claims on appeal save one, Mr.

Hasan failed to object before the district court. “When a defendant challenges in

district court the sufficiency of the evidence on specific grounds, ‘all grounds not

specified in the motion are waived’” and may only be reviewed for plain error.

United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (quoting United

States v. Kimler, 335 F.3d 1132, 1141 (10th Cir. 2003)). To establish plain error,

Mr. Hasan “‘must show: (1) an error, (2) that is plain, which means clear or

obvious under current law, and (3) that affects substantial rights. If he satisfies

these criteria, this Court may exercise discretion to correct the error if it seriously

affects the fairness, integrity, or public reputation of judicial proceedings.’” Id.

(quoting Kimler, 335 F.3d at 1141). “The plain error standard presents a heavy

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burden for an appellant, one which is not often satisfied.” United States v.

Romero, 491 F.3d 1173, 1178 (10th Cir. 2007).

B. Perjury Under 18 U.S.C. § 1623

Mr. Hasan was convicted of perjury under 18 U.S.C. § 1623 on the basis of

irreconcilably contradictory statements that he allegedly made before the grand

juries. The statute provides, in relevant part:

(a) Whoever under oath . . . in any proceeding before or
ancillary to any court or grand jury of the United States
knowingly makes any false material declaration . . . shall be
fined under this title or imprisoned not more than five years, or
both.

....

(c) An indictment or information for violation of this
section alleging that, in any proceedings before or ancillary to
any court or grand jury of the United States, the defendant
under oath has knowingly made two or more declarations,
which are inconsistent to the degree that one of them is
necessarily false, need not specify which declaration is false
if—

(1) each declaration was material to the point in
question, and

(2) each declaration was made within the period
of the statute of limitations for the offense charged
under this section.

In any prosecution under this section, the falsity of a
declaration set forth in the indictment or information shall be
established sufficient for conviction by proof that the
defendant while under oath made irreconcilably contradictory
declarations material to the point in question in any proceeding
before or ancillary to any court or grand jury. It shall be a

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 defense to an indictment or information made pursuant to the
first sentence of this subsection that the defendant at the time
he made each declaration believed the declaration was true.

18 U.S.C. § 1623. To establish guilt under the statute, the government must

prove beyond a reasonable doubt that: “(1) the defendant made a declaration

under oath before a grand jury; (2) such declaration was false; (3) the defendant

knew the declaration was false; and (4) the false declaration was material to the

grand jury’s inquiry.” United States v. Clifton, 406 F.3d 1173, 1177 (10th Cir.

2005).

C. Irreconcilably Contradictory Statements

Mr. Hasan first argues that his convictions on Counts One and Two are not

supported by sufficient evidence because the statements forming the basis for

these counts are not irreconcilably contradictory. Because Mr. Hasan did not

raise these challenges before the district court, we review his claims only for

plain error. For the reasons stated below, we conclude that Mr. Hasan cannot

establish clear or obvious error, and we reject his claims.

Although we have not opined extensively on what is required to meet the

“irreconcilably contradictory” (or “necessarily false”) requirement of § 1623(c),

one of our sister circuits has sensibly stated that a conviction may only be

sustained where the variance between the defendant’s two statements “extends

beyond mere vagueness, uncertainty, or equivocality. Even though two

declarations may differ from one another, the § 1623(c) standard is not met

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unless, taking them in context, they are so different that if one is true there is no

way that the other can also be true.” United States v. Flowers, 813 F.2d 1320,

1324 (4th Cir. 1987). We adopt this standard here. See United States v. McAfee,

8 F.3d 1010, 1014–15 (5th Cir. 1993) (adopting Flowers standard); United States

v. Porter, 994 F.2d 470, 473 (8th Cir. 1993) (same).

1. Inconsistent Statements: Count One

Count One involves inconsistent statements made by Mr. Hasan concerning

when and how his brothers were killed in Somalia. At the April 2005 hearing, as

the indictment charges, the following exchange occurred:

Q. Okay. What were the other reasons that you left your
country?

A. The war that was going around and nobody can stay
there and they took our house. They’re—I mean, they
took it and leave there. And my brother got killed there
and all my family ran away.

Q. What’s the name of your brother that had been killed?

A. Sadad. Sadad.

Q. How do you spell his name?

A. S-A-D, I think, A-D.

Q. S-A-D—

A. A-D or A-T. Sadad.

Q. And how long before 1997 when you filled out this form
had your brother been killed?

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 A. It was around—as I remember, it was ‘92, ‘93.

Q. Okay. And who killed him?

A. One of those who shot him, the Somalian people, the
one that was making war in the country.

Aplt. Addendum of Exs., Ex. 6, at 10 (Grand Jury Tr., dated Apr. 5, 2005). At the

November 2005 grand jury appearance, as the indictment avers, the following

exchange occurred:

Q. What’s the name of your brother that had been killed?

A. Sadad.

Q. What’s the name of your brother that was killed in the
car wreck?

A. That’s—that’s Sadad. That’s my brother Sadad and the
other is Mohammed.

Q. The one that got shot. And what year did he get shot?

A. 1996.

Id., Ex. 7, at 26 (Grand Jury Tr., dated Nov. 7, 2005).

The government’s theory at trial was that these statements were

irreconcilably contradictory because Mr. Hasan’s brother Sadad could not have

been shot to death and killed in a car wreck. Mr. Hasan now contends that rather

than being inconsistent these statements only indicate that he was confused. He

points in particular to his response, “That’s—that’s Sadad. That’s my brother

Sadad and the other is Mohammed.” According to Mr. Hasan, there is ambiguity

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in the words “that” and “the other,” and the prosecutor should have clarified who

Mr. Hasan was referring to. Aplt. Br. at 18–20. Instead of undertaking the “easy

fix” and asking who was shot and who was killed in a car wreck, id. at 19, Mr.

Hasan contends that the prosecutor preyed on his confusion, producing “nothing

but doubt about who was shot and who was killed in a wreck,” id. at 20. As a

result, “[n]o reasonable juror could have found the accounts irreconcilably

incompatible.” Id. at 20.

Although we agree with Mr. Hasan that there is some confusion in his

responses, he has not established clear or obvious error. In particular, we do not

believe that the district court would have committed such error in finding that, in

the full context of Mr. Hasan’s testimony, a reasonable jury could conclude: (1)

in his April appearance, Mr. Hasan meant it when he said that his brother Sadad

was shot to death; and (2) in his November appearance, Mr. Hasan meant it when

he said that his brother Sadad was killed in a car wreck. These two factual

statements cannot simultaneously be true. And although the prosecutor could

have done more to clarify, the district court would not have clearly or obviously

erred in concluding that a reasonable jury could find that the questions were not

the cause of Mr. Hasan’s inconsistent answers here. Cf. United States v. Farmer,

137 F.3d 1265, 1269 (10th Cir. 1998) (“[W]here a prosecutor’s question is only

‘arguably ambiguous,’ a defendant’s understanding of the question is for the jury

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to resolve in the first instance.”). Thus, we do not detect plain error, and we must

reject Mr. Hasan’s sufficiency-of-the-evidence challenge to Count One.

2. Inconsistent Statements: Count Two

Count Two involves inconsistent statements made by Mr. Hasan concerning

harms inflicted upon his sister. As the indictment alleges, the following exchange

occurred at the April 2005 grand jury appearance:

Q. Did anyone in Somalia do things to you that hurt you
physically?

A. Yeah.

Q. What did they do to you?

A. Killing my brother, shot my father, try raping my sister.

Aplt. Addendum of Exs., Ex. 6, at 20–21. At the November 2005 grand jury

appearance, as the indictment avers, the following exchange took place:

Q. Did anything happen to your sister in Somalia?

A. No, she—she was—she moved from Somalia a long time
ago. She was—she was in Canada.

Q. Okay. But—but when she was in Somalia, did anybody
try to do—hurt her?

A. I don’t remember because I was staying home always.
They always keep me at home.

Id., Ex. 7, at 32.

The government’s theory at trial was that these statements were

irreconcilably inconsistent because it cannot be true that his sister was the victim

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of an attempted rape and that she was not the victim of an attempted rape. Mr.

Hasan now argues to the contrary that no reasonable jury could have found an

irreconcilable contradiction in these statements. First, he contends, the transcript

indicates that he was confused by the November question, “Did anything happen

to your sister in Somalia?” Aplt. Br. at 21. He argues that his “complete answer

confirms that he thought he was being asked if his sister was still in

Somalia”—not whether she had suffered any violence while there. Id. When the

prosecutor did clarify that he was asking about harm to his sister, Mr. Hasan

responded: “I don’t remember.” Thus, Mr. Hasan insists that the statements

cannot be irreconcilably contradictory because “[i]t is at once logically possible

that the attempted rape occurred, and that the Defendant did not recall it in his

November testimony.” Id. at 22.

We understand the logic of Mr. Hasan’s argument, but he cannot establish

clear or obvious error on this issue. Mr. Hasan is correct that his November 2005

statement, “I don’t remember,” is not in itself irreconcilably contradictory with

his earlier statement that someone tried to rape his sister. However, the jury had

before it Mr. Hasan’s complete November grand jury testimony, and it could

permissibly reach conclusions concerning the import of his charged statements by

viewing them in the context of his other testimony. In particular, immediately

following the statements noted above, the following exchange took place between

the prosecutor and Mr. Hasan:

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 Q. You don’t remember?

A. No.

Q. That’s your answer?

A. Yeah.

Q. Do you remember having been interviewed here in the Grand
Jury on April 5th of 2005, and having said in answer to the
question, What did they do to you, you said, Killing my
brother, shot my father, try raping my sister. Is that something
that you would forget?

A. It wasn’t my sister, it was my cousin.

Q. All right. But you said sister, didn’t you?

A. I didn’t.

Q. Do you want to see the transcript?

A. I don’t remember. I said sister, I said cousin that they raped
her because my sister was in Canada a long time.

Q. Killing my brother, shot my father, try raping my sister.
That’s what it says; right?

A. Yeah, that was what it says, but—

Q. Now, do you think our transcriptionist here didn’t understand
the difference between sister and cousin?

A. I don’t know, but it was my cousin who trying to get raped
because my sister was in Canada a long time ago.

Aplt. Addendum of Exs., Ex. 7, at 32–33 (emphasis added). This additional

testimony could have led a reasonable jury to view Mr. Hasan’s statement, “I

don’t remember,” as charged in the indictment, in a different light. In particular,

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in this testimony, Mr. Hasan pairs the exact same statement, “I don’t

remember”—and later a somewhat similar statement, “I don’t know”—with

information concerning an alleged attempted rape involving his cousin and not his

sister, which arguably could have led a reasonable jury to conclude that Mr.

Hasan actually did remember whether his sister was subjected to an attempted

rape, and that Mr. Hasan’s testimony at that time was that it did not happen.

More to the point, the district court would not have clearly or obviously erred in

finding that, given this statement concerning Mr. Hasan’s cousin, a reasonable

jury could have determined that Mr. Hasan remembered a single incident of an

attempted rape of a female family member, and that this incident involved his

cousin and not his sister. Put another way, the district court would not have

clearly or obviously erred in concluding that a reasonable jury could have found

that the true import of Mr. Hasan’s November 2005 testimony, as alleged in the

indictment, was that there was no attempted rape of his sister. Therefore, the

district court would not have clearly or obviously erred in concluding that a

reasonable jury could find that: (1) in his April appearance, Mr. Hasan meant it

when he said that his sister was the victim of an attempted rape; and (2) in his

November grand jury appearance, Mr. Hasan meant it when he said that his sister

was not the victim of an attempted rape. These two factual statements cannot at

once be true. Thus, we do not detect plain error, and we must reject Mr. Hasan’s

sufficiency-of-the-evidence challenge to Count Two.

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 D. Materiality

We next consider Mr. Hasan’s contentions that the evidence was

insufficient to meet § 1623(c)(1)’s materiality requirement. He makes two

specific arguments on this score. First, as to all three counts on which he was

convicted, Mr. Hasan contends that “no evidence enabled the jury to determine

what decision the two grand juries were trying to make.” Aplt. Br. at 22.

Second, as to Count Three, even if the petit jury was aware of the decision the

grand jury was trying to make, Mr. Hasan alleges that “the government failed to

establish a materiality nexus with the April grand jury testimony.” Id. We reject

both claims.

Under the statute, to prove that a defendant made false statements before

the grand jury, the government must show that “each declaration was material to

the point in question.” 18 U.S.C. § 1623(c)(1). To be material to a charge of

perjury, a statement must have “a natural tendency to influence, or [be] capable of

influencing, the decision of the decisionmaking body to which it was addressed.”

Kungys v. United States, 485 U.S. 759, 770 (1988) (internal quotation marks

omitted); accord United States v. Finn, 375 F.3d 1033, 1038 (10th Cir. 2004); see

also United States v. Vap, 852 F.2d 1249, 1253 (10th Cir. 1988) (“Testimony is

material if it had a tendency to influence, mislead or hamper the grand jury in a

matter which it had the authority to investigate. The testimony need not have an

actual effect; it merely must be capable of influencing the grand jury.” (citations,

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ellipsis, and internal quotation marks omitted)); see also Black’s Law Dictionary

1066 (9th ed. 2009) (defining “material” as “[h]aving some logical connection

with the consequential facts,” or “[o]f such a nature that knowledge of the item

would affect a person’s decision-making; significant; essential”).

“Materiality is an element of the crime of perjury, which must be submitted

to the jury and proven by the prosecution beyond a reasonable doubt.” United

States v. Durham, 139 F.3d 1325, 1329 (10th Cir. 1998). In United States v.

Gaudin, the Supreme Court provided a framework for evaluating the factual

aspects of a jury’s materiality finding:

Deciding whether a statement is “material” requires the
determination of at least two subsidiary questions of purely
historical fact: (a) “what statement was made?” and (b) “what
decision was the agency trying to make?” The ultimate
question: (c) “whether the statement was material to the
decision,” requires applying the legal standard of materiality
(quoted above) to these historical facts.

515 U.S. 506, 512 (1995); accord Finn, 375 F.3d at 1038; see also United States

v. Najera Jimenez, 593 F.3d 391, 399–400 (5th Cir. 2010). In this case, the

relevant decisionmakers are the two grand juries before which Mr. Hasan

appeared in 2005. The government was required to prove that Mr. Hasan’s

statements were material to the determination being made by each grand jury.

See United States v. Allen, 892 F.2d 66, 68 (10th Cir. 1989) (“The materiality test

is determined at the time and for the purpose for which the allegedly false

statement was made.”).

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 1. Proof of the Grand Jury’s Purpose

Mr. Hasan first argues, pointing to Gaudin, that there was not sufficient

evidence to establish materiality because the petit jury was not adequately

informed of the nature of the grand juries’ investigations. The premise

underlying this argument is simple: without information about the purpose of the

grand juries’ inquiries, no reasonable jury could decide if statements were

material to those inquiries. See Finn, 375 F.3d at 1040. Because Mr. Hasan did

not raise this objection before the district court, we review it only for plain error.

To evaluate Mr. Hasan’s claim, it is necessary to review the evidence

before the petit jury going to the purpose of the grand juries’ inquiries. First, the

jury heard and received copies of Mr. Hasan’s testimony from each grand jury

appearance. The transcripts indicated that before the April grand jury the

prosecutor stated: “Mr. Hasan, this is a Federal Grand Jury that is investigating

possible violations of the Federal Criminal Law involving violations of Title 18,

U.S. Code, Section 1001.” Aplt. Addendum of Exs., Ex. 6, at 2–3. And before

the November grand jury the transcripts show that the prosecutor told Mr. Hasan

“[t]his is a Federal Grand Jury that’s investigating possible violations of the

Criminal Law.” Id., Ex. 7, at 2. The petit jury also received a copy of the

indictment against Mr. Hasan, which stated:

It was material to each of the [grand jury] proceedings . . . to
determine whether the Defendant, HASAN ALI HASAN, had
given truthful answers to federal agents during an interview

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 conducted on October 20, 2004, concerning answers he had
previously given in 1997 to federal immigration agents in
order to remain in the United States under asylum. It was
material to the November 7, 2005, Grand Jury inquiry whether
the Defendant had committed perjury in his April 5, 2005,
Grand Jury answers.

R., Vol. I, Doc. 2, at 1–2 (Indictment, filed Dec. 6, 2005). The federal law

enforcement agent who interviewed Mr. Hasan in October 2004 testified at length

about the subjects they covered. See R., Vol. 4, Pt. 1, at 32–100 (Trial Tr., dated

May 16, 2006). And a copy of the agent’s notes from his interview with Mr.

Hasan were admitted as an exhibit at trial. See Aplt. Addendum of Exs., Ex. 5.

Mr. Hasan argues that this was not enough to establish the purpose of the

grand jury proceedings beyond a reasonable doubt. He points to a Ninth Circuit

case that states that the government may prove materiality “by introducing the

complete transcript of the prior proceeding, by presenting testimony from persons

who witnessed the proceedings, or by presenting testimony from a member of the

grand jury.” Aplt. Br. at 23 (quoting United States v. Leon-Reyes, 177 F.3d 816,

819–20 (9th Cir. 1999)) (citations omitted). Reasoning inductively, Mr. Hasan

argues that, because the government did not do any of these things in his case, it

must have failed to introduce sufficient evidence of materiality.

Mr. Hasan has not established that any deficiencies in the government’s

evidence would have rendered clear or obvious error the district court’s decision

to uphold the jury’s verdict. There was direct and indirect evidence of the grand

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jury’s purpose, and by the plain terms of the perjury statute, there is no need for

the government to rely on the specific means or proof that Mr. Hasan suggests.

See 18 U.S.C. § 1623(e) (“Proof beyond a reasonable doubt under this section is

sufficient for conviction. It shall not be necessary that such proof be made by any

particular number of witnesses or by documentary or other type of evidence.”).

The case relied on by Mr. Hasan, Leon-Reyes, is inapposite (even if it were

binding on us, which obviously it is not), for it discusses in general terms the

kinds of evidence that may be used to establish materiality, but does not mention

the issue here—the quantum of evidence required for the petit jury to determine

the purpose of the grand juries’ inquiries. 6 Our own independent review of the

law also turns up no cases suggesting that it would have been clear or obvious

error under current law for the district court in this case to conclude that a

reasonable jury could have discerned the purpose of the grand juries. See Finn,

375 F.3d at 1038–40; cf. United States v. Ostertag, 671 F.2d 262, 264–65 (8th

Cir. 1982) (discerning the scope of the grand jury’s inquiry from the appellant’s

testimony before the grand jury). Therefore, we discern no plain error and must

reject Mr. Hasan’s claim that there was insufficient evidence to establish the

investigatory purposes of the grand juries.

6
In the end, Leon-Reyes does not help Mr. Hasan anyway, for the
court in that case could “find no reason” to fault the government’s reliance on
summaries of a witness’s previous testimony as a means of proving materiality.
See 177 F.3d at 820.

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 2. Materiality of Count Three

Finally, Mr. Hasan argues that the inconsistent statements supporting his

conviction on Count Three were not material to any issue examined by the April

2005 grand jury. Because he raised this claim before the district court, to prevail

on appeal, Mr. Hasan needs to show that, viewing the evidence de novo and in the

light most favorable to the government, no reasonable jury could have found him

guilty beyond a reasonable doubt. See, e.g., United States v. Parada, 577 F.3d

1275, 1283 (10th Cir. 2009), cert. denied, 78 U.S.L.W. 3687 (U.S. May 24, 2010)

(No. 09-8388).

Count Three concerns testimony given by Mr. Hasan about injuries to his

mouth and teeth that he suffered while in Somalia. At his appearance before the

April grand jury, Mr. Hasan stated that he had suffered broken teeth in an attack;

before the November grand jury he denied having received such an injury. Mr.

Hasan now argues that any statement about his teeth could not have been material

to the April grand jury’s investigation. He reasons as follows: The April grand

jury “was investigating the truthfulness of the statements that Hasan made to

federal agents in 2004, regarding his personal and family history.” Aplee. Br. at

34. But when the federal agent who interviewed Mr. Hasan in 2004 testified at

trial, he “did not disclose any statements made by the Defendant about harm he

suffered in Somalia or the condition of his teeth.” Aplt. Br. at 26. Thus any

statement about broken teeth could not have been material to the April grand

-36-
jury’s inquiry because Mr. Hasan had not said anything about teeth to the federal

agent and there was no potential falsehood for the grand jury to uncover on the

topic.

Mr. Hasan frames the materiality inquiry too narrowly. As noted above, for

testimony to be material, it “need not have an actual effect; it merely must be

‘capable of influencing’ the grand jury.” Vap, 852 F.2d at 1253 (quoting United

States v. Girdner, 773 F.2d 257, 259 (10th Cir. 1985)). Our sister circuits take

the same view. The Ninth Circuit has said:

The only requirement is that the question be material to a
subject of grand jury inquiry. The evidence need not be
material to the main issue and it need not be directed to the
primary subject of the investigation. It is material if it is
relevant to any subsidiary issue then under consideration.

United States v. Percell, 526 F.2d 189, 190 (9th Cir. 1975); see also United States

v. Farnham, 791 F.2d 331, 334 (4th Cir. 1986) (“Given the wide-ranging

investigative function of the grand jury, the materiality of any line of inquiry

pursued by a grand jury must be broadly construed.” (citation omitted)). The

April grand jury was investigating allegedly false statements made by Mr. Hasan

to the federal agent regarding his family and personal history. The agent’s

testimony indicates that portions of the 2004 interview focused on physical harms

suffered by Mr. Hasan and his family. Mr. Hasan’s statements to the April grand

jury that he suffered broken teeth involve harms he suffered in Somalia and thus

would be material to that grand jury’s investigation into whether Mr. Hasan made

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false statements about his personal circumstances in his home country. This is so

even if he made no mention of broken teeth during the 2004 agent interview. In

this light we are confident that a reasonable jury could conclude that Mr. Hasan’s

statements at the April grand jury were material, and we reject Mr. Hasan’s claim

that the government failed to present sufficient evidence on this count.

CONCLUSION

Because the district court failed to apply the correct legal standard in

determining whether Mr. Hasan spoke “primarily a language other than the

English language,” we remand this case for the district court to conduct a proper

analysis under the CIA. We also reject all of Mr. Hasan’s claims that his

convictions are not supported by sufficient evidence. Thus we VACATE in part,

AFFIRM in part, and REMAND for further proceedings.

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