United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2010 Decided July 27, 2010
No. 06-3085
UNITED STATES OF AMERICA,
APPELLEE
v.
MARLIN MOORE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00078-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Lisa B. Wright,
Assistant Federal Public Defender, entered an appearance.
Sarah T. Chasson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Roy W. McLeese III and
Elizabeth Trosman, Assistant U.S. Attorneys.
Before: GINSBURG, TATEL and KAVANAUGH, Circuit
Judges.
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Opinion for the Court filed by Circuit Judge GINSBURG.
Concurring opinion filed by Circuit Judge KAVANAUGH.
GINSBURG, Circuit Judge: Marlin Moore was convicted
of making a materially false statement, in violation of 18
U.S.C. § 1001(a)(2), because he signed a false name on a
Postal Service delivery form. Moore admits he willfully
signed a false name but argues his conviction must be
reversed because no rational jury could have found the false
name was “material” to any matter within the jurisdiction of
the federal Government. We disagree and affirm his
conviction.
I. Background
Inspectors from the United States Postal Service
intercepted a package containing powder cocaine and
addressed to Karen White, whom the Postal Service believed
was a “fictitious person,” at 1315 Shepherd Street N.W. in
Washington, D.C. The Postal Service and the Metropolitan
Police Department (MPD) organized a “controlled delivery”
in order to apprehend the recipient of the package. The MPD
got a warrant authorizing them to replace most of the cocaine
inside the package with flour, to place a tracking device inside
the box, and to monitor the delivery of the package. Neither
the MPD nor the Postal Service knew who would accept the
package, but they were prepared to arrest anyone who, after
delivery, attempted to open the package or to remove it from
the premises.
Postal Inspector Alicia Bumpas, posing as a letter carrier,
attempted to hand deliver the package to the indicated
address. When no one answered her knock on the door,
Bumpas prepared to fill out a Postal Service form notifying
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the addressee a parcel was waiting and could be obtained by
picking it up or by arranging for another delivery. Before
Bumpas could complete the form, Moore arrived at the house
and used a key to open the front door.
Bumpas told Moore she had an Express Mail package for
Karen White, and asked whether White lived there and
whether she was home. Moore said White was not home and
he would sign for the package. When asked his relationship
to White, Moore said he was her boyfriend. Bumpas asked
Moore to sign the delivery form and the Express Mail label
and Moore signed the name “Kevin Jones” on each. Moore
then took the package, placed it inside the house, shut the
door, and left the premises. Soon thereafter he returned to the
house and retrieved the package. He was arrested when he
attempted to leave with it.
Moore was charged with various drug-related crimes not
relevant to this appeal. He was also charged with making a
materially false statement about a matter within the
jurisdiction of the United States Postal Service, in violation of
18 U.S.C. § 1001(a)(2). Moore admitted at trial that he
signed the delivery form and the Express Mail label using a
false name. On appeal Moore challenges the sufficiency of
the evidence supporting his conviction for making a
materially false statement in violation of § 1001.
II. Analysis
Our review of the sufficiency of the evidence supporting
the judgment of the district court is limited; we must affirm
the jury’s verdict of guilty if “any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Dykes, 406 F.3d 717, 721
(D.C. Cir. 2005). In making this determination, we view the
prosecution’s evidence in the light most favorable to the
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Government and “giv[e] full play to the right of the jury to ...
draw justifiable inferences of fact.” Id.
To prove Moore made a statement in violation of 18
U.S.C. § 1001(a)(2), the Government must show he (1)
“knowingly and willfully” (2) “[made] any materially false,
fictitious, or fraudulent statement or representation” (3) in a
“matter within the jurisdiction of the executive ... branch of
the Government of the United States.” Moore argues only
that the Government’s evidence was insufficient to support a
finding that his admittedly false statement was “materially
false.”
Section 1001 does not define “materially false.” The
Supreme Court has said a statement is materially false if it has
“a natural tendency to influence, or [is] capable of
influencing, the decision of the decisionmaking body to which
it was addressed.” United States v. Gaudin, 515 U.S. 506,
509 (1995). Many of our sister circuits have adopted a
somewhat broader approach to determining materiality,
asking not only whether a statement might influence a
discrete decision, but also whether a statement might affect in
any way the functioning of the government agency to which it
was addressed. See, e.g., United States v. Alemany Rivera,
781 F.2d 229, 235 (1st Cir. 1985) (“test for materiality under
18 U.S.C. § 1001 is ... whether [the statement] had the
capacity to influence a government function”); United States
v. Lichenstein, 610 F.2d 1272, 1278 (5th Cir. 1980) (“false
statement must simply have the capacity to impair or pervert
the functioning of a government agency”); United States v.
White, 270 F.3d 356, 365 (6th Cir. 2001) (“‘materiality’ is a
fairly low bar .... [T]he government must present at least
some evidence showing how the false statement in question
was capable of influencing federal functioning.”); United
States v. Moore, 446 F.3d 671, 681 (7th Cir. 2006) (statement
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is material if it “has a natural tendency to influence, or ... is
capable of affecting, a government function”); United States
v. Calhoon, 97 F.3d 518, 530 (11th Cir. 1996) (“it is enough if
the statements had a natural tendency to influence[] or [were]
capable of affecting or influencing a government function”)
(internal quotation marks deleted); see also Brogan v. United
States, 522 U.S. 398, 403 (1998) (§ 1001 at least “protect[s]
the authorized functions of governmental ... agencies from the
perversion which might result” from relying upon a false
statement); United States v. Sarihifard, 155 F.3d 301, 307
(4th Cir. 1998) (stating distinction between discrete decision
and general investigation by grand jury is “irrelevant” to
materiality).
In determining whether a false statement is material this
court has consistently asked whether the statement has a
tendency to influence a discrete decision of the body to which
it was addressed. See, e.g., United States v. Winstead, 74 F.3d
1313, 1320–21 (1996); United States v. Hansen, 772 F.2d
940, 949 (1985). We have, however, suggested a “lie
distorting an investigation already in progress” also would run
afoul of § 1001. Hansen, 772 F.2d at 949. We now join the
other circuits in holding a statement is material if it has a
natural tendency to influence, or is capable of influencing,
either a discrete decision or any other function of the agency
to which it was addressed.
Moore argues that even with this understanding of
materiality we must reverse his conviction because his false
statement was “not capable of influencing the Postal Service”
in any way. He notes that when Inspector Bumpas gave him
the package and asked him to sign for it, “she did not know
his name, she did not ask his name, and she did not ask him
for identification.”
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We agree the evidence shows the name that Moore
signed was immaterial to Inspector Bumpas’s decision to
deliver the package to him. In keeping with the reasoning
above and in Gaudin, however, the question of materiality is
not to be answered by reference only to the specific
circumstances of the case at hand. As the Supreme Court
explained in Gaudin, a statement need not actually influence
an agency in order to be material; it need only have “a natural
tendency to influence, or [be] capable of influencing” an
agency function or decision. 515 U.S. at 509; accord Hansen,
772 F.2d at 949 (“Proof of actual reliance on the statement is
not required; the Government need only make a reasonable
showing of its potential effects”); United States v. McBane,
433 F.3d 344, 351 (3d Cir. 2005) (“the phrase ‘natural
tendency’ connotes qualities of the statement ... that transcend
the immediate circumstances in which it is offered and inhere
in the statement itself”).
Moore points out that at trial the Government failed to
present any testimony or other evidence specifically for the
purpose of establishing the materiality of Moore’s false
statement. Nonetheless, we hold the evidence that was
presented more than sufficed for a reasonable jury to
conclude, as the Government argued at trial, that Moore’s
false statement was capable of affecting the Postal Service’s
general function of tracking packages and identifying the
recipients of packages entrusted to it. Moore’s use of a false
name also could have impeded the ability of the Postal
Service to investigate the trafficking of narcotics through the
mails. See United States v. Baker, 200 F.3d 558, 561 (8th Cir.
2000) (fictitious home address provided by subject of Postal
Service investigation was material because it could have
inhibited the Postal Service’s ability “to carry out its core
function of delivering the mail” and furthered the defendant’s
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attempt to “[make] herself hard to find during the
investigation”).
What was that evidence? First, Inspector Bumpas
testified she would not have delivered the package unless she
received a signature identifying the recipient. From this the
jury could reasonably infer one function of the Postal Service
is to track certain types of packages and to identify the
recipients thereof. Clearly, signing a false name on a delivery
form may adversely affect the ability of the Postal Service to
perform this function.
Second, Postal Inspector Mark Mancuso testified to
having used, in the course of a narcotics investigation, a
Postal Service “database that will track who signed for a
package.” In this case the Postal Service did not need to rely
upon the name signed on the delivery form in order to identify
Moore but only because, soon after leaving the premises, he
returned and was arrested by the police staked out there. Had
Moore not returned, his having given a false name could have
prevented the Postal Service from identifying and locating
him in pursuit of its investigation.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is
Affirmed.
KAVANAUGH, Circuit Judge, concurring:
This case is novel: The Government has obtained a false
statements conviction under 18 U.S.C. § 1001 against an
individual who signed the wrong name on a postal delivery
form. I join the Court’s opinion. I add these brief concurring
comments because this case highlights one of the difficult
issues that can arise in prosecutions under the ever-
metastasizing § 1001 – namely, the mens rea requirements for
the statute, which by its text proscribes only those false
statements that are “knowingly and willfully” made.
***
Federal prosecutors tried Moore twice for various drug
offenses, but both times the jury hung. In the second trial,
prosecutors tacked on a false statements charge under § 1001.
The charged false statement? Moore signed the wrong name
on a Postal Service delivery form, PS Form 3849. Unlike
many government forms, PS Form 3849 contained no
warning that an inaccurate statement might be a crime. And it
is not otherwise clear that Moore (or most people) would
know that signing the wrong name on a postal delivery form
is a crime. But the defense did not request a knowledge-of-
law instruction, and the District Court did not require the
Government to prove that the defendant knew his conduct
was unlawful. Moore was convicted of the false statements
count and sentenced on that charge alone to five years in
prison.
As many others have noted, § 1001 prosecutions can pose
a risk of abuse and injustice. In part, that’s because § 1001
applies to virtually any statement an individual makes to
virtually any federal government official – even when the
individual making the statement is not under oath (unlike in
perjury cases) or otherwise aware that criminal punishment
can result from a false statement. See, e.g., Alex Kozinski &
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Misha Tseytlin, You’re (Probably) a Federal Criminal, in IN
THE NAME OF JUSTICE 43, 47 (2009) (“Your mom taught you
not to lie, but she probably didn’t tell you that making a false
statement to any federal official dealing with any matter in his
jurisdiction will make you a federal criminal.”); cf. United
States v. Yermian, 468 U.S. 63, 82 (1984) (Rehnquist, J.,
dissenting) (§ 1001 can be used to punish “the most casual
false statements so long as they turned out, unbeknownst to
their maker, to be material to some federal agency function . .
. . [making] a surprisingly broad range of unremarkable
conduct a violation of federal law”) (internal quotation marks
omitted).
Proper application of statutory mens rea requirements and
background mens rea principles can mitigate the risk of abuse
and unfair lack of notice in prosecutions under § 1001 and
other regulatory statutes. In § 1001 cases, that means proof
that the defendant knew that making the false statement
would be a crime. To be sure, “ignorance of law is no
defense” is a hoary maxim. But it does not automatically
apply to today’s phalanx of federal regulatory crimes. See
WAYNE R. LAFAVE, CRIMINAL LAW § 5.6, at 298-311 (5th ed.
2010). For some regulatory offenses – particularly statutes
like § 1001 that proscribe only “willful” conduct – the
Supreme Court has recognized an ignorance-of-law or
mistake-of-law defense, or has required affirmative proof of
the defendant’s knowledge that his or her conduct was
unlawful. See Bryan v. United States, 524 U.S. 184, 191-92
(1998); Ratzlaf v. United States, 510 U.S. 135, 141-49 (1994);
Cheek v. United States, 498 U.S. 192, 199-201 (1991);
Lambert v. California, 355 U.S. 225, 229-30 (1957); cf.
Liparota v. United States, 471 U.S. 419, 425-26 (1985); Dan
M. Kahan, Ignorance of Law Is an Excuse – But Only for the
Virtuous, 96 MICH. L. REV. 127, 150 (1997) (noting that
“courts permit mistake of law as a defense [] selectively
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across malum prohibitum crimes”). For criminal statutes
prohibiting “willful” violators, those cases together require
proof that the defendant was aware that the conduct was
unlawful.
In Bryan, the Supreme Court summarized the rule quite
clearly: “[I]n order to establish a willful violation of a statute,
the Government must prove that the defendant acted with
knowledge that his conduct was unlawful.” 524 U.S. at 191-
92 (internal quotation marks omitted). Since Bryan, the Court
has reiterated this formulation on several occasions. See also
Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57 n.9 (2007)
(“we have consistently held that a defendant cannot harbor
such criminal intent unless he acted with knowledge that his
conduct was unlawful”) (internal quotation marks omitted);
Dixon v. United States, 548 U.S. 1, 5 (2006) (the term
“willfully” “requires a defendant to have acted with
knowledge that his conduct was unlawful”) (internal
quotation marks omitted).*
It is true that our Court many years ago seemed to assume
(in addressing a mens rea issue under a different statute) that
proving the defendant’s knowledge of the law may not be
required in § 1001 cases. See United States v. Hsia, 176 F.3d
517, 522 n.3 (D.C. Cir. 1999). In so doing, Hsia referenced a
1994 Third Circuit opinion that pre-dated the Supreme
Court’s clarifying decisions in Bryan and later cases. That
assumption may not endure in light of those subsequent
*
To say that the Government must prove the defendant knew
the conduct was a crime is not necessarily to say that the
Government must prove the defendant knew the specific code
provision proscribing the conduct, except with respect to certain
highly technical statutes. See Bryan, 524 U.S. at 194; cf. Ratzlaf,
510 U.S. at 141 (anti-structuring statute); Cheek, 498 U.S. at 200
(tax statute).
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Supreme Court precedents. In a future case, we therefore may
need to consider the appropriate mens rea requirements and
defenses for § 1001 prosecutions under those Supreme Court
decisions.
Here, however, there is no legal obstacle to our affirming
Moore’s § 1001 conviction: Moore did not contend that the
term “willfully” in § 1001 requires proof of the defendant’s
knowledge of the law, and he did not challenge the jury
instructions on that basis. But in a case where the issue is
raised, the Supreme Court’s precedents arguably require
district courts in § 1001 cases to give a willfulness instruction
that requires proof that the defendant knew his conduct was a
crime. To be sure, in many false statements cases the
Government will be able to easily prove that the defendant
knew his conduct was unlawful. But in some cases, it will not
be able to do so – and those of course are precisely the cases
where it would seem inappropriate and contrary to § 1001’s
statutory text to impose criminal punishment.