United States v. Moyer

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 11-2497
_____________

UNITED STATES OF AMERICA

v.

WILLIAM MOYER,

Appellant

(M.D. Pa. No. 3-09-cr-00397-003)
_____________

No. 11-2559
_____________

UNITED STATES OF AMERICA

v.

MATTHEW NESTOR,

Appellant

(M.D. Pa. No. 3-09-cr-00397-001)

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 __________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Judge: Hon. A. Richard Caputo
__________

Submitted under Third Circuit LAR 34.1(a)
January 23, 2012

Before: FISHER, GREENAWAY, JR. and ALDISERT,
Circuit Judges.

(Filed: February 29, 2012)

Enid W. Harris, Esq.
400 Third Avenue, Suite 111
Kingston, PA 18704
Counsel for Appellant William Moyer

James J. West, Esq.
James J. West LLC
105 North Front Street, Suite 205
Harrisburg, PA 17101
Counsel for Appellant Matthew Nestor

Thomas E. Perez
Jessica Dunsay Silver
Angela M. Miller
United States Department of Justice
Civil Rights Division, Appellate Section
Ben Franklin Station
P.O. Box 14403

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Washington, D.C. 20044
Counsel for Appellee
__________

OPINION OF THE COURT
__________

ALDISERT, Circuit Judge.

Appellants Matthew Nestor and William Moyer appeal
from final judgments entered by the United States District
Court for the Middle District of Pennsylvania after a jury
found Nestor guilty on Count Two of the indictment and
Moyer guilty on Count Five. Count Two of the indictment
charged Nestor with knowingly falsifying police reports with
the intent to impede, obstruct, or influence the investigation
into a matter within the jurisdiction of the Federal Bureau of
Investigation (“FBI”), in violation of 18 U.S.C. § 1519. Count
Five charged Moyer with knowingly making a false material
statement in a matter within the FBI’s jurisdiction, in
violation of 18 U.S.C. § 1001.

Nestor now challenges both the indictment and his
conviction. First, he contends that the District Court: (1)
exceeded its discretion by denying, in relevant part, his
motion for a bill of particulars; (2) erred by refusing to
dismiss Count Two because it was duplicitous; and (3)
exceeded its discretion by refusing to enforce the bill of
particulars it did order. Nestor also contends (4) that the
government presented insufficient evidence to support his
conviction; and (5) that 18 U.S.C. § 1519 is
unconstitutionally vague. Moyer argues that the evidence was

3
insufficient to support his conviction under § 1001. For the
reasons that follow, we will affirm.

I.
A.
In the late evening of July 12, 2008, in Shenandoah,
Pennsylvania, teenagers Brandon Piekarsky, Derrick
Donchak, Brian Scully, Colin Walsh, Ben Lawson, and Josh
Redmond encountered Luis Ramirez, a Hispanic man, in a
local park. After some of the teenagers shouted racially
derogatory comments at Ramirez and told him to “go back to
Mexico,” a violent fight ensued. App. 00765. Walsh knocked
Ramirez down and Piekarsky kicked their victim in the head
while he was on the ground. The fight ended with Ramirez
lying unconscious in the street.

Arielle Garcia witnessed part of the incident. She
recognized the teenagers as students from Shenandoah High
School and heard Scully shouting “racial” things to Ramirez
about his ancestry. App. 00767. She saw Scully and Ramirez
“interlock” and later saw “some[one]” kick Ramirez in the
head “really hard” after he fell. App. 00675. After the
teenagers fled the scene toward the park, Garcia phoned 911.

At the same time, Francis Ney saw approximately four
“younger individuals” run in front of his moving car. App.
00977. He heard a female shouting and saw Ramirez lying in
the street. Ney called 911 and reported seeing the teenagers in
the park. Ney tried to revive Ramirez but eventually ran to the
park with a man referred to as “Mexican Jesse,” who
confronted Piekarsky, Scully, Donchak, Walsh, Lawson and
Redmond. According to some, “Mexican Jesse” brandished a

4
gun. 1 Officer Robert Senape of the West Mahanoy Police
Department arrived at the scene and requested an ambulance.
Lieutenant William Moyer and Officer Jason Hayes of the
Shenandoah Police Department—both defendants below—
arrived shortly thereafter. In the meantime, the police
dispatch system reported a man chasing people in the park, so
Lieutenant Moyer and Officer Hayes left to respond.

Moments later, Ney again called 911 to report that the
teenagers who had beaten Ramirez were near the baseball
field and urged the dispatcher to send police to the area. Ney
was speaking with the dispatcher when Lieutenant Moyer and
Officer Hayes arrived. While still on the phone with the 911
dispatcher, Ney told the officers that approximately five
teenagers were running through the field on the back side of
the school. When one of the officers asked who the teenagers
were, Ney responded that they were a bunch of 16- to
17-year-old kids. Ney told the officers that he saw the
teenagers who were beating Ramirez and that they fled when
he stopped them to ask what they were doing. Ney told the
police that Donchak remained in the park while the others ran
away. Throughout this conversation—which was recorded on
the 911 call—the dispatcher repeatedly asked if Ney was
speaking with the police. After the dispatcher’s third inquiry,

1
One of the teenagers testified that he never saw a weapon.
Ney acknowledged at trial that Jesse could have had a
weapon, but explained that he did not remember Jesse having
a gun. The recordings of Ney’s 911 calls, played to the jury
and admitted into evidence, do not reference a gun. Ney,
however, included in his police statement that Jesse had a gun
and testified before the grand jury that Jesse had a gun that
evening.

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Ney responded in the affirmative and the dispatcher
terminated the call.

Ney and Donchak were placed in the police cruiser,
and Lieutenant Moyer drove to Donchak’s home, where the
teenagers had gathered. After speaking with them, the officers
looked “shocked” and “confused,” and released the pair from
the police car. App. 00989. But moments later, when
Lieutenant Moyer and Officer Hayes saw Ney on their way
back to the scene, they arrested him based on Piekarsky’s
assertion that Ney had a gun. Officer Charles Kovalewski of
the Mahanoy City Police Department arrived while
Lieutenant Moyer was handcuffing Ney, who kept saying “it
wasn’t him.” App. 00957. Lieutenant Moyer told Ney to
“shut up” and placed him in the rear seat of the police car.
App. 00958. Officer Kovalewski also got into the car. At no
point did Kovalewski hear Ney say anything about a man
with a gun. The officers then drove back to the scene of the
assault. Once there, Officer Hayes—who was romantically
involved with Piekarsky’s mother, Tammy—took Piekarsky
toward the park and spoke with him privately.

Lieutenant Moyer telephoned Matthew Nestor, the
Chief of Police, who was off-duty at a bar, and briefed him on
the incident. Chief Nestor then called Piekarsky’s mother. 2
Other officers remained at the park and eventually found a
BB gun. At the police station, Garcia and Ney provided
statements, during which Garcia never identified who kicked
Ramirez in the head. Officer Hayes interviewed Ney about
the gun but did not ask what Ney knew about the assault.

2
Meanwhile, at Donchak’s home, the teenagers spoke with
Piekarsky on the phone and were told that Piekarsky had

6
 The next day, July 13, 2008, detectives from the
District Attorney’s office arrived at the station. They, along
with Lieutenant Moyer, interviewed Scully, who relayed “the
cover story [the teenagers] made up” the night before. App.
00774. Later that day, District Attorney (“D.A.”) James
Goodman was briefed about the assault, and he instructed his
detectives to continue to assist the police with their
investigation.

Ramirez died on July 14. The cause of death was ruled
a homicide. Phone records indicate that on the afternoon of
July 15—immediately after learning the cause of death—
Chief Nestor placed six telephone calls to Tammy Piekarsky.

By July 21, D.A. Goodman decided to take over the
investigation because (1) the romantic relationship between
Tammy Piekarsky and Officer Hayes created a conflict of
interest, and (2) some of the suspects were “trying to protect
the kicker.” App. 01365. On July 23, D.A. Goodman

given a statement to the police and the other teenagers needed
to match their stories to Piekarsky’s. Piekarsky and his
mother came to Donchak’s home later that evening. Based on
the information Tammy Piekarsky received from Chief
Nestor, which she relayed to the teenagers, everyone knew
the situation was serious and that they would get in trouble if
they did not “get it together and leave things out” of their
story. App. 00773. The teenagers decided to base their stories
on Piekarsky’s statement to the police: the fight was “one on
one” and did not involve “drinking,” “kicking,” or “racial
language.” App. 00560.

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contacted the Pennsylvania State Police and the State
Attorney General’s Office about a possible cover-up
involving the Shenandoah Police Department. 3 Two days
later, on July 25, the D.A.’s office filed criminal complaints
against the teenagers.

On July 28, the D.A.’s office contacted Chief Nestor
because D.A. Goodman had not yet received any
investigative reports from Officer Hayes. In fact, the only
reports D.A. Goodman received from the police department
were (1) a July 20 report from Chief Nestor regarding his
investigative steps in the Ramirez assault, and (2) a one-page
report from Lieutenant Moyer about “an individual who
brought a BB gun to the scene after the assault” on Ramirez,
but nothing regarding the assault itself. App. 01367. Chief
Nestor’s July 20 report did not: (1) identify the teenaged
suspects; (2) include any of his contacts with Ms. Piekarsky;
or (3) include his conversation with Borough Manager
Palubinsky about the conflict of interest.

On August 1, D.A. Goodman sent a formal
memorandum to Chief Nestor, Lieutenant Moyer and Officer
Hayes, requesting additional information from Nestor and
reports from Moyer and Hayes on their involvement in the
investigation. They complied with this request. Lieutenant
Moyer’s report indicated that eyewitness Garcia told him at

3
That night, Lieutenant Moyer came to the Scully home. He
parked down the street and told Scully’s stepfather that he
could not risk being seen. He then said numerous witnesses
claimed Scully kicked Ramirez and urged them to “[d]o the
right thing” and get Scully “to confess.” App. 01296.

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the scene that Scully had kicked Ramirez in the head. Officer
Hayes’s report—which Chief Nestor reviewed and
incorporated into his August 1 report—also indicated that
Garcia identified Scully as the kicker. This was the first time
the D.A.’s office heard from the Shenandoah Police
Department that someone had identified Scully as the kicker,
even though Lieutenant Moyer briefed the D.A.’s office about
the incident on the morning of July 13. In his August 1 report,
Nestor stated that he was the one who: (1) contacted the
D.A.’s office about a possible conflict of interest, and (2)
requested that the D.A.’s office take over the case. 4

The FBI became involved by the end of July 2008,
after media reports revealed that the assault may have been
racially motivated. As part of the investigation, FBI Special
Agent Adam Aichele interviewed Lieutenant Moyer on June
2, 2009. At that time, Lieutenant Moyer stated that when he
initially encountered Ney in the park on the night of the
assault, Ney said someone had a gun, and, upon hearing this
information, Moyer instructed Ney to get into the police car.
Lieutenant Moyer also stated that Ney never identified
Ramirez’s assailants. When Special Agent Aichele
interviewed Lieutenant Moyer again on June 11, 2009, Moyer
reiterated the same sequence of events. Special Agent Aichele
questioned Moyer’s account and played the 911 recording for
Moyer, in which Ney does not mention a man with a gun but

4
At trial, D.A. Goodman testified that Chief Nestor never
suggested that the D.A.’s office take over and that it was
Goodman who contacted Chief Nestor to inform him that the
D.A.’s office would be “taking over” the case because of the
conflicts of interest and the D.A.’s suspicion that the police
department was involved in a cover-up. App. 01365.

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does identify Ramirez’s assailants. After hearing the
recording, Lieutenant Moyer said, “That’s not what he told
me.” App. 01674. Special Agent Aichele played the recording
several more times for Moyer, who denied that Ney was
speaking to him when Ney stated in the 911 call, “There they
go,” claiming that Ney must have been speaking to the
dispatcher. Lieutenant Moyer then changed his story, stating
that Ney must have told him about the gun after he put Ney in
the police cruiser.

B.
On December 10, 2009, a federal grand jury returned a
five-count indictment against Chief Nestor, Lieutenant Moyer
and Officer Hayes, charging each with conspiring to falsify
documents with the intent to obstruct an investigation of a
matter within the jurisdiction of an agency of the United
States, in violation of 18 U.S.C. § 371 (Count One), and with
the substantive offense of falsifying documents in violation of
18 U.S.C. § 1519 (Count Two). The indictment additionally
charged Lieutenant Moyer with two counts of obstruction of
justice in violation of 18 U.S.C. § 1512 (Counts Three and
Four) and one count of making false statements in violation
of 18 U.S.C. § 1001 (Count Five).

Chief Nestor moved to dismiss Counts One and Two
of the indictment and also moved for a bill of particulars
seeking (1) the agency and matter within the federal
government’s jurisdiction and (2) the reports and/or
statements alleged to be false in Count Two. The District
Court denied the motion to dismiss and granted Chief
Nestor’s motion for a bill of particulars with respect to the
“federal investigation or matter under the jurisdiction of a
United States agency [Nestor] is alleged to have contemplated

10
at the time of the alleged obstructive acts.” App. 00287. In
response, the government informed Chief Nestor that the
matter within the FBI’s jurisdiction was the racially
motivated killing of Ramirez. The Court denied Chief
Nestor’s motion with respect to reports and/or statements
pertaining to Count Two, concluding that the indictment
specifically identified the reports at issue, the investigation to
which they pertained, their subject matter, authors, and
relevant dates.

Defendants pleaded not guilty and proceeded to trial.
At the close of the government’s case-in-chief, defendants
moved for judgments of acquittal on sufficiency grounds. The
Court denied the motions. On January 27, 2011, after a
two-week trial, the jury convicted Moyer of making false
statements (Count Five) and Nestor of falsifying documents
(Count Two). Defendants were acquitted on all other counts.
After the verdict, the Court denied defendants’ motions for
judgments of acquittal and new trials. Lieutenant Moyer was
sentenced to three months’ imprisonment on Count Five,
followed by one year of supervised release; Chief Nestor was
sentenced to thirteen months’ imprisonment on Count Two,
followed by two years of supervised release. Defendants
timely appealed. 5

II.
We first consider Nestor’s substantive challenges to
Count Two of the indictment. He contends that the District
Court (1) exceeded its discretion by denying the requested bill

5
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.

11
of particulars relating to the alleged false statements; (2) erred
by refusing to dismiss Count Two because it was duplicitous;
and (3) exceeded its discretion by failing to enforce the bill of
particulars it did order. We address each of these contentions
in turn.

A.
First, Nestor contends that the District Court exceeded
its discretion by denying the requested bill of particulars
relating to the alleged false statements. The sufficiency of an
indictment is a question of law over which we exercise
plenary review. See United States v. Hodge, 211 F.3d 74, 76
(3d Cir. 2000). A district court’s denial of a motion for a bill
of particulars is reviewed for an abuse of discretion. See
United States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005).

For an indictment to be sufficient, it must contain all
the elements of a crime and adequately apprise the defendant
of what he must be prepared to meet. See Russell v. United
States, 369 U.S. 749, 763-766 (1962). “[W]hen the indictment
itself is too vague and indefinite for such purposes,” a bill of
particulars is warranted. United States v. Addonizio, 451 F.2d
49, 64 (3d Cir. 1971) (internal quotation marks and citation
omitted). “The purpose of the bill of particulars is to inform
the defendant of the nature of the charges brought against him
to adequately prepare his defense, to avoid surprise during the
trial and to protect him against a second prosecution for an
inadequately described offense.” Id. at 63-64 (quoting United
States v. Tucker, 262 F. Supp. 305, 308 (S.D.N.Y. 1966)).
The decision to grant a motion for a bill of particulars is a
“discretionary matter with the trial court,” and a denial of
such a motion “does not amount to an abuse of discretion
unless the deprivation of the information sought leads to the

12
defendant’s inability to adequately prepare his case, to avoid
surprise at trial, or to avoid the later risk of double jeopardy.”
Id. at 64.

Nestor contends that Count Two of the indictment was
insufficient because it failed to identify the false statements
underlying his conviction. See Virgin Islands v. Pemberton,
813 F.2d 626, 632 (3d Cir. 1987). Nestor asserts he was
prejudiced by this because, without knowing which
statements were allegedly false, he was unable to properly
prepare for trial. Therefore, Nestor contends, the District
Court exceeded its discretion by denying his motion for a bill
of particulars.

We conclude that the indictment here was sufficiently
detailed such that a bill of particulars was not necessary.
When an indictment merely quotes the language of a statute
and that statute contains generalities, the indictment must
factually define those generalities, descending into
particulars. See Russell, 369 U.S. at 765. Tracking the
language of § 1519, Count Two charged Nestor with aiding
and abetting others in falsifying documents while acting in
relation to and in contemplation of a matter within federal
jurisdiction, and doing so with the intent to impede, obstruct,
and influence an investigation into that matter. The
indictment, however, did more than just set forth the offense
in the words of the statute. Count Two explained that the
falsified documents were “official police reports” created
between July 12, 2008, and March 30, 2009. App. 00053.
Because Count Two incorporated Count One (charging
conspiracy to violate § 1519), Nestor also knew which
specific police reports were being investigated and which

13
federal matter was at issue: the racially motivated assault of
Ramirez.

Although the government did not identify every
omission or inclusion that rendered false the documents
identified in the indictment, and thus “did not, at the pre-trial
stage, weave the information at its command into the warp of
a fully integrated trial theory for the benefit of the
defendant[],” the government was not “required to do so.”
Addonizio, 451 F.2d at 64 (citation omitted). Rule 7(c) of the
Federal Rules of Criminal Procedure requires an indictment
to be “concise” and contain “essential facts,” but does not
require the indictment to include every fact to be alleged by
the government. Moreover, we agree with the District Court’s
assessment that the specificity with which the government
identified the reports at issue made it “highly unlikely that
[Nestor would] be unfairly surprised with an unfamiliar
police report at trial.” App. 00288. Because the indictment
here was sufficiently detailed, we conclude that the District
Court did not exceed its discretion by declining Nestor’s
request for a bill of particulars.

B.
Nestor asserts that Count Two of the indictment should
be dismissed altogether because it alleged multiple false
statements in multiple police reports in a single count and
was, therefore, duplicitous. “Duplicity is the joining of two or
more distinct offenses in a single count, so that a general
verdict does not reveal exactly which crimes the jury found
the defendant had committed.” United States v. Gomberg,
715 F.2d 843, 845 (3d Cir. 1983) (citation omitted), overruled
on other grounds by Garrett v. United States, 471 U.S. 773
(1985). Whether an indictment is duplicitous is a question of

14
law subject to de novo review. See United States v. Haddy,
134 F.3d 542, 547 (3d Cir. 1998).

Our analysis begins by ascertaining “the allowable unit
of prosecution to decide whether the indictment properly
charges a violation of the pertinent statute.” United States v.
Root, 585 F.3d 145, 150 (3d Cir. 2009) (citation omitted). To
do so, we discern “[c]ongressional intent by examining the
language of the statute.” Id. (citation omitted). The statute
states:
Whoever knowingly alters, destroys, mutilates,
conceals, covers up, falsifies, or makes a false
entry in any record, document, or tangible
object with the intent to impede, obstruct, or
influence the investigation or proper
administration of any matter within the
jurisdiction of any department or agency of the
United States or any case filed under title 11, or
in relation to or contemplation of any such
matter or case, shall be fined under this title,
imprisoned not more than 20 years, or both.

18 U.S.C. § 1519. The statute is silent as to whether each
falsified document—or even each falsified statement—is
required to be charged separately or whether multiple
statements or documents may be combined in one count.

The question of whether each falsified entry in a single
document must be charged separately was recently considered
in United States v. Schmeltz, --- F.3d ----, 2011 WL 6351623
(6th Cir. 2011), in which the government charged a defendant
with one count of obstruction for multiple falsified entries in
a single document. The court held that “[t]he ‘falsifies’ clause

15
of § 1519 was . . . intended to punish the falsification of a
document, rather than specific statements or omissions within
a document. Accordingly, [the defendant] could violate
§ 1519 once—and no more than once—by falsifying [a
single] . . . report with his omissions.” Id. at *4. We agree
with the rationale of the Court of Appeals for the Sixth
Circuit and conclude that the statute does not require the
government to charge separate counts for each false entry in a
document.

Section 1519 does not explain in ipsis verbis whether
each falsified document must be charged separately. The
statute criminalizes the falsifying of “any record.” The word
“any” is defined as “[a]n indeterminate derivative of one . . .
in which the idea of unity . . . is subordinated to that of
indifference as to the particular one or ones that may be
selected.” Oxford English Dictionary (3d ed. 2009) (online
version Dec. 2011). Courts have consistently rejected
duplicity arguments when the statute employs “any” as a
signifier regarding the “allowable unit of prosecution.” See
e.g., Root, 585 F.3d at 150-151 (explaining that multiple
years of tax evasion may be combined in one count for
violation of 26 U.S.C. § 7201, which criminalizes any willful
“attempts in any manner to evade or defeat any tax imposed
by this title . . . .” (emphases added)); United States v.
Brimberry, 744 F.2d 580, 583 (7th Cir. 1984) (“We find that
these separate actions of the defendant were in furtherance of
the sole object of destroying all Stix records in Miller’s
possession, and . . . these actions constituted a continuing
course of conduct.”); United States v. Berardi, 675 F.2d 894,
898 (7th Cir. 1982) (concluding that an indictment may
combine three separate attempts to influence a witness’s
testimony into one count of obstructing justice by “threats or

16
force, or by any threatening letter” in violation of 18 U.S.C.
§ 1503).

Interpretation of the word “record” permits this
reading as well. “Record” is defined as “anything preserving
information and constituting a piece of evidence about past
events.” Oxford English Dictionary (3d ed. 2009) (online
version Dec. 2011). Thus, the “record” concerning the
investigation into the Ramirez assault could fairly be
interpreted as the collection of official police reports. Because
Count Two alleges a continuing course, between July 12,
2008, and March 30, 2009, of falsifying the “record” to
obstruct a single federal investigation—and identifies
multiple reports that were created to that singular end—the
indictment is not duplicitous. See Berardi, 744 F.2d at 898
(holding that an indictment is not duplicitous when it is
“fairly interpreted” to set forth a “continuing course of
conduct, during a discrete period of time” to obstruct justice
with facts that support such a theory); see also Rule 7(c)(1)
(allowing a single count to allege “that the defendant
committed [the offense] by one or more specified means”).

But our inquiry is not yet finished. Because the
government has discretion to draw “[t]he line between
multiple offenses and multiple means to the commission of a
single continuing offense,” Berardi, 675 F.2d at 898, we must
also “examine the concerns traditionally associated with
charging in one count what could be several independent
charges.” Root, 585 F.3d at 154 (internal quotation marks and
citation omitted). These concerns include: (1) avoiding doubt
that a general verdict may mask a finding of guilt as to one
crime but not another; (2) avoiding risk that the jury was not
unanimous as to any one of the crimes charged; (3) providing

17
the defendant adequate notice; (4) supplying an adequate
basis for sentencing; and (5) protecting against double
jeopardy. See id. (citation omitted).

Nestor argues that Count Two’s duplicity prejudiced
him because the jurors may have relied on different acts in
concluding that he was guilty of obstructing justice. We
disagree. Nestor was convicted of knowingly falsifying the
record with the intent to obstruct a matter within the
jurisdiction of the FBI. The jury instructions were crystal
clear that if the jury found Nestor “guilty of an offense[,]
every [juror] must agree that the government has overcome
the presumption of innocence with evidence that proves each
element of that offense beyond a reasonable doubt.” App.
02626. At trial, following the reading of the verdict, the jury
was polled and the verdict was affirmed individually by each
juror. Thus, every juror agreed that between July 12, 2008,
and March 30, 2009, Nestor engaged in a continuing course
of conduct of using the official police reports to knowingly
falsify the record of the Ramirez investigation, with the intent
to obstruct a matter within the jurisdiction of the FBI. Given
this, we conclude that Count Two of the indictment “may
fairly be read to charge but a single scheme and is therefore
not duplicitous.” Root, 585 F.3d at 150 (quoting United States
v. Shorter, 809 F.2d 54, 57 (D.C. Cir. 1987)).

C.
Nestor contends also that the District Court exceeded
its discretion in refusing to enforce the bill of particulars that
it did order. 6 In response to the Court’s order, the government

6
The District Court’s order stated: “The government is
directed to disclose what matter within the jurisdiction of an

18
informed Nestor that “the matter within the jurisdiction of the
[FBI was] the racially motivated killing of” Ramirez. App.
00302. Nestor asserts that this response was inadequate and
required further enforcement. We disagree.

First, the FBI clearly has jurisdiction to investigate
racially motivated killings under several statutes, including 18
U.S.C. § 241, § 245, and 42 U.S.C. § 3631. Second, that the
government did not identify a specific criminal statute over
which it had jurisdiction is of no consequence. The plain
language of 18 U.S.C. § 1519 criminalizes a defendant’s
efforts to obstruct “the investigation or proper administration
of any matter” within the jurisdiction of the FBI, “or in
relation to or contemplation of any such matter.” Indeed,
§ 1519 covers efforts to obstruct investigations that do not
result in the filing of charges. See, e.g., United States v. Gray,
642 F.3d 371, 379 (2d Cir. 2011) (“[Section] 1519 does not
require the existence or likelihood of a federal
investigation.”). Thus, if the statute does not require the
existence of a federal investigation before criminal liability
may attach, it certainly does not require the government to
identify a specific federal statute that is the focus of the
investigation. Therefore, because the FBI unquestionably has
jurisdiction to investigate racially motivated killings, and
because Nestor was informed that the racially motivated
killing of Ramirez was the federal matter at issue in Count
Two, the District Court did not exceed its discretion by
denying a request for additional information. We therefore
reject Nestor’s three challenges to the indictment.

agency of the United States Defendant is alleged to have
contemplated.” App. 00290.

19
 III.
Nestor raises several challenges to the sufficiency of
evidence to support his conviction on Count Two for
obstructing justice in violation of 18 U.S.C. § 1519. For the
reasons that follow, we conclude that these contentions do not
carry the day.

Count Two of the indictment charged Nestor with
knowingly falsifying police reports with the intent to impede,
obstruct, or influence the investigation into the racially
motivated assault of Ramirez. Nestor contends that the
evidence was insufficient to prove his guilt on Count Two.
Sufficiency of the evidence is a question of law, subject to
plenary review. See United States v. Silveus, 542 F.3d 993,
1002 (3d Cir. 2008). We review “the evidence in the light
most favorable to the Government,” afford “deference to a
jury’s findings,” and draw “all reasonable inferences in favor
of the jury verdict.” United States v. Riley, 621 F.3d 312, 329
(3d Cir. 2010) (internal quotation marks and citation omitted).
We will overturn the verdict “only when the record contains
no evidence, regardless of how it is weighted, from which the
jury could find guilt beyond a reasonable doubt.” Id. (internal
quotation marks and citation omitted).

Nestor asserts that the evidence was insufficient to
convict him because the government failed to prove: (1) that
he knowingly falsified documents; (2) that he knew the
“matter” at issue was within the FBI’s jurisdiction; (3) that he
intended to obstruct an FBI investigation; and (4) that he
acted in “contemplation of” such a matter. To resolve these
challenges, we must first consider what proof is required to
establish a violation of § 1519.

20
 A.
The parties agree that the government must prove that
Nestor knowingly falsified a record or document. The
government presented evidence from which a reasonable
juror could conclude not only that Nestor had a motive to
falsify police reports, 7 but that he did, in fact, knowingly
falsify reports and aided and abetted others in doing so as
well. The jury learned that on August 1, 2008, as part of the
D.A.’s investigation into a possible police cover-up of the
Ramirez assault, the D.A. formally directed Nestor, Moyer
and Hayes to prepare reports of their investigative efforts.
The jury learned that Hayes’s report—which Nestor reviewed
and incorporated into his own report—falsely indicated that
eyewitness Garcia identified Scully as the one who kicked the
victim in the head. The jury also heard evidence from which
it could reasonably infer that Nestor—who was present at
Garcia’s interview—knew the information in the report about
Garcia identifying the kicker was false. App. 01997.
Moreover, none of the police reports included any mention of

7
Evidence presented to support Nestor’s motive includes
testimony that: (1) he was briefed after the assault that the
suspects were local teenagers, including Piekarksy; (2) his
subordinate, Officer Hayes, was dating Piekarsky’s mother;
(3) he was friends with, and had vacationed with, Officer
Hayes and Ms. Piekarksy; (4) he spoke with Ms. Piekarsky on
the night of the assault, after which she instructed the
teenagers to get their stories straight before talking with the
police (a story which omitted the final kick to Ramirez and
the use of racial slurs); and (5) he called Ms. Piekarsky
immediately after learning that Ramirez’s death was ruled a
homicide.

21
racial motivation for the assault. Nestor’s own July 20 report
did not: (1) identify the teenaged suspects then known to him;
(2) include any of his contacts with Ms. Piekarsky; or (3)
include his conversation with Palubinsky about the conflict of
interest. Nestor’s August 1 report, moreover, falsely stated
that he was the person who (1) contacted the D.A.’s office
about a possible conflict of interest; and (2) requested that the
D.A.’s office take over the case. In these respects, the reverse
was true.

Nestor contends that, like other obstruction of justice
statutes, § 1519 does not criminalize the omissions in his
report because there is no proof that he had a
contemporaneous duty to disclose the specific information
alleged to have been omitted. See United States v. Curran, 20
F.3d 560, 566 (3d Cir. 1994) (“[T]o convict under a section
1001 concealment charge, the government must show that a
defendant had a legal duty to disclose the facts at the time he
was alleged to have concealed them.”). Furthermore, Nestor
contends, none of the omissions or false representations may
be considered material.

These arguments fail. It borders on the ridiculous to
assert that a Chief of Police would not have a duty to disclose
the identity of suspects in his official police reports or,
conversely, that withholding the names of suspects—known
to him—in those official police reports would be deemed
acceptable. Furthermore, although one court has concluded
that material omissions may support a conviction under
§ 1519, see United States v. Lanham, 617 F.3d 873, 887 (6th
Cir. 2010), we refuse to require such a conclusion, because
materiality is not an express element of § 1519, as it is in 18

22
U.S.C. § 1001. Nestor’s reliance on Curran, therefore, is
misplaced, because that case involved § 1001. 8

From all of this evidence, we conclude that a
reasonable juror could find that Nestor knowingly falsified
documents. There was sufficient evidence to prove that he
knowingly (1) endorsed false information contained in his
subordinate’s report, (2) omitted information from his own
report, and (3) produced false information in his report, all
with the intent to impede the investigation into the racially
motivated assault.

8
Regardless, Nestor’s omissions were material. His report
omitted the names of the suspects involved in the assault, and
this information would certainly “be of a type capable of
influencing” the investigation. United States v. McBane, 433
F.3d 344, 351 (3d Cir. 2005). He also omitted his
communications with a suspect’s mother and his personal
relationship with her, which suggests an effort to conceal his
preferential treatment of that suspect. See United States v.
Lanham, 617 F.3d 873, 887 (6th Cir. 2010) (holding that a
“reasonable fact-finder could conclude that [a defendant]
falsified his report” in violation of § 1519 when he omitted
information “as an attempt to ‘cover up’” information).
Nestor’s affirmative misrepresentations regarding his
conversations with the D.A. were also material, because if he
had truthfully reported that it was the D.A. who insisted on
taking over the investigation, this information would given
weight to the conflicts of interest and raised questions about
the police department’s actions during the investigation.

23
 B.
Nestor maintains that the knowledge requirement of
§ 1519 necessitates that the government prove Nestor knew
the “matter” at issue was within the jurisdiction of the FBI.
We decline to read such a requirement into the statute. See
Bates v. United States, 522 U.S. 23, 29 (1997) (“[W]e
ordinarily resist reading words or elements into a statute that
do not appear on its face.”).

The most natural reading of § 1519, which we accept,
is to interpret “knowingly” as modifying its surrounding
verbs only: “alters, destroys, mutilates, conceals, covers up,
falsifies, or makes a false entry.” 18 U.S.C. § 1519; see also
United States v. Yielding, 657 F.3d 688, 714 (8th Cir. 2011).
Although the Supreme Court has occasionally interpreted
“knowingly” more broadly when scienter is not otherwise
expressed in the criminal statute, see, e.g., United States v.
X-Citement Video, Inc., 513 U.S. 64, 69-70 (1994), that
“concern[] [is] not present here,” because § 1519 expressly
“requires proof that an accused knowingly falsified a
document, with intent to impede, obstruct, or interfere with
the investigation or proper administration of a matter,”
Yielding, 657 F.3d at 714. “By the plain terms of § 1519,
knowledge of a pending federal investigation or proceeding is
not an element of the obstruction crime.” Gray, 642 F.3d at
378.

Indeed, “[i]t is well settled that mens rea requirements
typically do not extend to the jurisdictional elements of a
crime—that ‘the existence of the fact that confers federal
jurisdiction need not be one in the mind of the actor at the
time he perpetrates the act made criminal by the federal
statute.’” United States v. Cooper, 482 F.3d 658, 664 (4th Cir.

24
2007) (quoting United States v. Feola, 420 U.S. 671, 677 n.9
(1975)). The government therefore need not prove that Nestor
actually knew that the “matter” at issue was within the
jurisdiction of the federal government when he falsified
documents. 9 It need only prove that he knowingly falsified
them. To that end, we conclude that there was sufficient
evidence for a reasonable juror to find that he did so.

C.
Nestor contends also that the government did not
prove a sufficient “nexus” between his conduct and the
federal investigation, as required by United States v. Aguilar,
515 U.S. 593 (1995), and Arthur Andersen LLP v. United
States, 544 U.S. 696 (2005). We conclude that proof of such a
nexus is not required. The text of § 1519 requires only proof
that Nestor knowingly falsified documents and did so with the
intent to “impede, obstruct, or influence the investigation or
proper administration of any matter” that happens to be
within federal jurisdiction.

9
Although it was not required to do so, the government did
present sufficient evidence for a reasonable juror to find that
Nestor knew the matter at issue was within the FBI’s
jurisdiction. Witnesses testified that it was widely reported by
the local media outlets that the FBI became involved in the
investigation by the end of July—before Nestor wrote both
police reports. App. 0118-01120. In addition, the government
presented evidence that every certified police officer in
Pennsylvania is taught that the FBI has jurisdiction over civil
rights violations, such as ethnic intimidation and bias crimes,
and that hate crimes are covered by a variety of federal
statutes. App. 01572-01574, 01577-01580, 01607-01610.

25
 In reliance upon Aguilar and Arthur Andersen, Nestor
argues that the government must prove that he intended to
impede a specific federal investigation. In Aguilar, the Court
held that the defendant’s act of lying to investigators was not
sufficiently connected to a grand jury proceeding to uphold
his conviction under the general obstruction statute, 18 U.S.C.
§ 1503. See 515 U.S. at 600-601. Extending the reasoning of
Aguilar to § 1512(b)(2), the Court in Arthur Andersen held
that the government was required to prove a “nexus” between
the defendant’s attempts to persuade another to destroy
documents and a pending or foreseeable official proceeding.
544 U.S. at 708 (reasoning that a knowingly corrupt
persuader “cannot be someone who persuades others to shred
documents under a document retention policy when he does
not have in contemplation any particular official proceeding
in which those documents might be material”).

We decline to extend the reasoning of §§ 1503 and
1512(b)(2), because “the language of § 1519 is materially
different from [those] statutes.” Yielding, 657 F.3d at 712;
see also United States v. Kernell, --- F.3d ----, 2012 WL
255765, at *6-*7 (6th Cir. 2012). Section 1503 forbids
“corruptly endeavor[ing]” to obstruct justice, and
§ 1512(b)(2) prohibits the “knowingly corrupt[t]
persua[sion]” to obstruct justice. Thus, in both Aguilar and
Arthur Andersen, the Court was “required to discern the
substance of an intent requirement from statutory terms that
appeared to imply one, but did not speak directly to its
content.” Yielding, 657 F.3d at 713. By contrast, the statute at
issue here speaks “more directly to the requisite intent and
describe[s] its scope more precisely.” Id. “That the accused’s
intent must be wrongful is evident from the nature of the acts
prohibited, such as knowing falsification of documents, and

26
the requisite intent to influence, obstruct, or impede an
investigation.” Id. (citation omitted). Nestor’s argument,
therefore, conflicts with the plain meaning of the statute. “The
words of the statute are unambiguous, and thus, ‘judicial
inquiry is complete.’” Gray, 642 F.3d at 377 (quoting Conn.
Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)). Therefore,
“[i]t is sufficient that the ‘matter’ [under investigation] is
within the jurisdiction of a federal agency as a factual
matter.” Yielding, 657 F.3d at 714 (citation omitted). We
accept the analysis of the Court of Appeals for the Eighth
Circuit in this respect.

The legislative history further confirms this
interpretation. The Senate considered the intent requirement
to be independent of the jurisdiction requirement, explaining
that § 1519 “is meant to apply broadly to any acts to destroy
or fabricate physical evidence so long as they are done with
the intent to obstruct, impede or influence the investigation or
proper administration of any matter, and such matter is within
the jurisdiction of an agency of the United States.” S. Rep.
No. 107-146, at 14 (2002) (emphases added). The Senate
Report goes on to clarify: “[t]his statute is specifically meant
not to include any technical requirement, which some courts
have read into other obstruction of justice statutes, to tie the
obstructive conduct to a pending or imminent proceeding or
matter.” Id. at 14-15; see also 148 Cong. Rec. S7419 (daily
ed. July 26, 2002) (statement of Sen. Patrick Leahy) (“The
fact that a matter is within the jurisdiction of a federal agency
is intended to be a jurisdictional matter, and not in any way
linked to the intent of the defendant.”).

Thus, we conclude that the government was required
only to prove that (1) Nestor intended to impede an

27
investigation into “any matter” and (2) the matter at issue was
ultimately proven to be within the federal government’s
jurisdiction. It was not required to prove that Nestor intended
to obstruct or impede a specific federal investigation.

D.
Nestor contends also that no reasonable juror could
have found that he acted in “contemplation of” a specific
federal investigation at the time he prepared his reports in
July and August of 2008. Again, Nestor’s argument is based
upon a misguided reading of § 1519.

The statute expressly criminalizes the knowing
falsification of any record “with the intent to impede,
obstruct, or influence the investigation or proper
administration of any matter within the jurisdiction of” the
federal government. 18 U.S.C. § 1519. To ensure that the
statute is applied “broadly,” criminal liability “also extends to
acts done in contemplation of such federal matters, so that the
timing of the act in relation to the beginning of the matter or
investigation is also not a bar to prosecution.” S. Rep. No.
107-146, at 13 (2002) (emphasis added); see also Gray, 642
F.3d at 379 (“[Section] 1519 does not require the existence or
likelihood of a federal investigation.”). In analyzing the intent
requirement of § 1519, we examined the statute’s use of “any
matter” and concluded that a defendant need not intend to
obstruct or impede a specific federal investigation; the
government must prove only that (1) a defendant intended to
impede the investigation of “any matter” and (2) the matter at
issue was ultimately proven to be within the federal
government’s jurisdiction. See supra Part III.C. The in
“contemplation of” clause of § 1519 refers to the same
“matter.” Thus, the same analysis is required.

28
 Looking to the evidence presented at trial, we conclude
that a reasonable juror could have found that Nestor acted in
“contemplation of” an investigation into the racially
motivated assault on Ramirez, which was within the
jurisdiction of the FBI. The government presented evidence
that D.A. Goodman took over the investigation because he
determined that the “coverup was more than just the
[teenaged] boys.” App. 01455. As part of the D.A.’s
investigation, Goodman directed Nestor to prepare the police
reports at issue. Moreover, there was evidence that, by the
end of July 2008, it was well-reported by local news outlets
that the FBI was investigating the Ramirez assault. We
conclude that this evidence was sufficient to prove Nestor
knowingly falsified documents in “contemplation of” an
investigation of a “matter,” which was proven to be within the
jurisdiction of the federal government.

IV.
Finally, Nestor challenges the constitutionality of
§ 1519, arguing it is too vague. We apply de novo review to
this challenge. See United States v. Weatherly, 525 F.3d 265,
273 (3d Cir. 2008). “It is well established that vagueness
challenges to statutes which do not involve First Amendment
freedoms must be examined in the light of the facts of the
case at hand.” United States v. Mazurie, 419 U.S. 544, 550
(1975) (citation omitted).

A.
A statute is unconstitutionally vague only if it “fails to
provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits” or
“authorizes . . . arbitrary and discriminatory enforcement.”

29
United States v. Amirnazmi, 645 F.3d 564, 588 (3d Cir. 2011)
(internal quotation marks and citation omitted). In criminal
cases, because “vagueness attacks are based on lack of notice,
they may be overcome in any specific case where reasonable
persons would know their conduct puts [them] at risk of
punishment under the statute.” San Filippo v. Bongiovanni,
961 F.2d 1125, 1136 (3d Cir. 1992) (alteration in original)
(internal quotation marks and citation omitted). Criminal
statutes, therefore, need only give “‘fair warning’ that certain
conduct is prohibited” to withstand a constitutional challenge.
Id. (quoting Colten v. Kentucky, 407 U.S. 104, 110 (1972)).

The focus of our inquiry is the meaning of the statute
in light of common understanding and practice. See Robinson
v. Napolitano, 554 F.3d 358, 365 (3d Cir. 2009). In looking at
the language of the statute, § 1519 “rather plainly
criminalizes the conduct of an individual who (1) knowingly
(2) makes a false entry in a record or document (3) with the
intent to impede or influence a federal investigation.” United
States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008). As a law
enforcement officer, Nestor cannot credibly argue that the
statute was unconstitutionally vague as applied to him. Any
person of ordinary intelligence—let alone a chief of police—
would comprehend that this statute prohibits a police officer
from knowingly writing a false report with the intent to
impede an ongoing, or future, investigation. See id. (“A
person of ordinary intelligence would understand a police
report to be a ‘record’ or ‘document,’ and would also read the
language ‘any matter within the jurisdiction of [a] department
. . . of the United States’ to include an FBI investigation.”).
Nestor’s conduct, therefore, falls plainly within the
prohibitions of the statute, and as such, the statute’s “plain

30
text” put Nestor “on notice [that] his conduct was unlawful.”
Id.

Section 1519’s scienter requirement, moreover,
eliminates any concerns regarding statutory vagueness.
Scienter requirements in criminal statutes “alleviate
vagueness concerns” because a mens rea element makes it
less likely that a defendant will be convicted for an action
committed by mistake. Gonzales v. Carhart, 550 U.S. 124,
149 (2007) (citation omitted). Because a defendant will be
convicted for violating § 1519 “only for an act knowingly
done with the purpose of doing that which the statute
prohibits, the accused cannot be said to suffer from lack of
warning or knowledge that the act which he does is a
violation of law.” Screws v. United States, 325 U.S. 91, 102
(1945). Here, by the express language of the statute, no
liability will be imposed for knowingly falsifying documents
without an “intent to impede, obstruct, or influence a matter.”
18 U.S.C. § 1519; see also Kernell, 2012 WL 255765, at *5
(“[T]he construction creates the needed specific intent and
avoids [defendant’s] concern that ‘the statute would forbid
innocent conduct.’” (quoting Yielding, 567 F.3d at 711)).

B.
Nestor contends also that applying § 1519 to his
actions would require a Procrustean stretching of that
statute’s language, because his actions were not done in
“contemplation of” an FBI investigation. Specifically, Nestor
asserts that the “contemplation of” clause is too vague
because it does not specify what a defendant must know to
trigger criminal liability.

31
 We have already concluded that it was enough that the
government prove that Nestor acted in “contemplation of” an
investigation into the racially motivated assault on Ramirez,
which was within the jurisdiction of the FBI. Although this
interpretation makes criminal liability very broad under
§ 1519, this “is consistent with the legislative history and
other cases to consider the question.” Kernell, 2012 WL
255765, at *8; see also Gray, 642 F.3d at 379 (“[Section]
1519 does not require the existence or likelihood of a federal
investigation.”); S. Rep. No. 107-146, at 14 (2002)
(explaining that § 1519 “is meant to apply broadly to any acts
to destroy or fabricate physical evidence” (emphasis added)).

“Moreover, even if this element is potentially vague as
it relates to hypothetical defendants,” it is clearly not vague as
it relates to Nestor. Kernell, 2012 WL 255765, at *8. As
previously discussed, the government presented sufficient
evidence to prove that when Nestor falsified the police
reports, he contemplated an investigation into a matter within
the jurisdiction of the FBI, intending to impede that
investigation. See supra, Part III.D. Thus, we conclude that
the statute is not vague “in the light of the facts of the case at
hand.” Mazurie, 419 U.S. at 550 (citation omitted). 10

10
Nestor also maintains that § 1519 is void for vagueness as
applied to his case because the nexus required between his
conduct and the investigation is too attenuated. This argument
is foreclosed by our conclusion that the government is not
required to prove a nexus between Nestor’s conduct and the
investigation. See supra Part III.C.

32
 Because § 1519 clearly expresses the elements that the
government must prove to secure a conviction under the
statute, we reject Nestor’s challenges to its constitutionality.

V.
We now turn to review Moyer’s conviction on Count
Five, for knowingly making a false material statement in a
matter within the FBI’s jurisdiction in violation of 18 U.S.C.
§ 1001. 11 Specifically, the indictment alleged that, in
conversations with the FBI on June 2 and 11, 2009, Moyer
falsely stated that (1) an eyewitness warned that there was a
man with a gun in the park and (2) the same eyewitness never
identified anyone involved in the assault on Ramirez.

To establish a violation of § 1001, the government was
required to prove each of the following five elements: (1) that
Moyer made a statement or representation; (2) that the
statement or representation was false; (3) that the false
statement was made knowingly and willfully; (4) that the
statement or representation was material; and (5) that the
statement or representation was made in a matter within the

11
Again, sufficiency of the evidence is a question of law,
subject to plenary review. See Silveus, 542 F.3d at 1002. We
review “the evidence in the light most favorable to the
Government,” afford “deference to a jury’s findings,” and
draw “all reasonable inferences in favor of the jury verdict.”
Riley, 621 F.3d at 329 (internal quotation marks and citation
omitted). We will overturn the verdict “only when the record
contains no evidence, regardless of how it is weighted, from
which the jury could find guilt beyond a reasonable doubt.”
Id. (internal quotation marks and citation omitted).

33
jurisdiction of the federal government. 12 See United States v.
Barr, 963 F.2d 641, 645 (3d Cir. 1992). Moyer contends that
the government’s evidence was insufficient to prove three of
the required five elements: (1) that the statements were false;
(2) that they were made knowingly and willfully; and (3) that
they were material. For the reasons that follow, we conclude
that the evidence was sufficient to support Moyer’s
conviction.

A.
First, we agree with the government that there was
sufficient evidence that Moyer made false statements. Based
on the evidence presented at trial, a reasonable juror could
find that Moyer falsely stated that the eyewitness, Francis

12
18 U.S.C. § 1001 states:
(a) Except as otherwise provided in this section,
whoever, in any matter within the jurisdiction of
the executive, legislative, or judicial branch of
the Government of the United States,
knowingly and willfully—
(1) falsifies, conceals, or covers up by
any trick, scheme, or device a material
fact;
(2) makes any materially false, fictitious,
or fraudulent statement or representation;
or
(3) makes or uses any false writing or
document knowing the same to contain
any materially false, fictitious, or
fraudulent statement or entry;
shall be fined under this title, imprisoned not more
than 5 years . . . .

34
Ney, did not identify Ramirez’s assailants. Indeed, the 911
call recorded this identification. The recording indicates that,
after being asked who the teenagers were, Ney told the
officers that a bunch of 16- to 17-year-old kids, who had
beaten up Ramirez, began running when Ney asked what they
were doing. This evidence is more than sufficient to support
the jury’s finding that Moyer falsely stated to the FBI that
Ney did not identify the suspects. See United States v.
McKanry, 628 F.3d 1010, 1018 (8th Cir. 2011) (upholding
defendant’s false statement conviction where defendant’s
statement was “directly contradicted by [trial] evidence”).

The jury’s finding that Moyer falsely stated that Ney
reported seeing a man with a gun is equally well supported.
There is no mention of a man with a gun whatsoever in the
911 recording. Moreover, Officer Hayes’s written report
makes no mention of Ney informing the officers about such a
man. Ney even testified that immediately after the 911 call
ended, he got into the police cruiser and did “not remember”
having a conversation with anyone while in the cruiser. App.
01027. Furthermore, Moyer confirmed that there were no
conversations while Ney was in it. Ney also testified that it
was only after one of the teenagers told police that Ney had a
gun—and immediately before the police arrested him—that
he realized the police were even concerned about a man with
a gun. Thus, the jury could reasonably conclude that Ney
never actually informed the police—either during the
recorded 911 call or immediately after—that there was a man
with a gun. Although Moyer testified that Ney did, in fact,
mention a man with a gun, it was the jury’s duty—and not
ours—to “weigh evidence [and] determine the credibility of
witnesses . . . .” United States v. Beckett, 208 F.3d 140, 151
(3d Cir. 2000) (citing United States v. Casper, 956 F.2d 416,

35
421 (3d Cir. 1992)). Based on the 911 recording, Hayes’s
written report, and Ney’s testimony, the evidence was
sufficient to support a finding that Moyer’s statements to the
FBI were false. See McKanry, 628 F.3d at 1018 (holding that
the “evidence adequately supports the jury’s verdict” when
defendant’s “denial was directly contradicted by evidence,
including [defendant’s] recorded admission”).

B.
We also agree that there was sufficient evidence that
Moyer acted “deliberately and with knowledge” that his
representations were false and that he was aware “at least in a
general sense, that his conduct was unlawful.” United States
v. Starnes, 583 F.3d 196, 212 (3d Cir. 2009). When
questioned on June 2 and June 11, 2009, Moyer told the FBI
that, immediately upon his arrival at the scene, Ney warned of
someone in the park with a gun. The jury also heard
testimony that, when confronted with the 911 recording in
which Ney did not mention a gun and did identify the
participants, Moyer changed his original statement so it
would no longer conflict with the recording. Moyer’s efforts
to conform his statement to the recording are sufficient to
support the jury’s finding that Moyer deliberately changed his
statement and knew that both his original and changed
statements were false. See id. at 212-213. The government,
moreover, presented evidence that no gunman was ever
mentioned, as Ney testified at trial that he had no recollection
of ever mentioning that anyone had a gun in the park that
night. Furthermore, the jury also heard sufficient evidence to
conclude that Moyer knew his actions were unlawful; as a
certified law enforcement officer, Moyer received training
that made him aware that, “at least in a general sense,”
obstructing a criminal investigation by lying to a federal law

36
enforcement officer is unlawful. Id. at 212. All of this
evidence was sufficient to prove that Moyer’s actions were
knowing and willful.

C.
Finally, we conclude that there was sufficient evidence
to support a finding of materiality. Courts have recognized
that “a frequent aim of false statements made to federal
investigators is to cast suspicion away from the declarant.”
United States v. Lutpon, 620 F.3d 790, 806 (7th Cir. 2010).
“When statements are aimed at misdirecting agents and their
investigation, even if they miss spectacularly or stand
absolutely no chance of succeeding, they satisfy the
materiality requirement of 18 U.S.C. § 1001.” Id. at 806-807.

Although the government was not required to show
actual reliance on Moyer’s statements, it was required to
prove that Moyer’s statements had a “natural tendency to
influence” or were “capable of influencing” the FBI. United
States v. Gaudin, 515 U.S. 506, 509 (1995) (internal
quotation marks and citation omitted); see also McBane, 433
F.3d at 352 (explaining that false statements that could cause
the FBI “to re-direct their investigation . . . question their
informant differently or more fully, or perhaps close their
investigation altogether” were material). Count Five focused
on Moyer’s efforts to obstruct the investigation, and
specifically, his actions to focus attention away from
Piekarsky. His statements to the FBI that Ney mentioned a
man with a gun but did not identify Ramirez’s assailants, if
taken as true, could have explained Moyer’s actions on the
night of the assault with respect to his protection of the
teenaged suspects. If believed and acted upon, Moyer’s false
statements could have refocused the FBI’s investigation. For

37
this reason, Moyer’s statements were material, because they
were “of a type capable of influencing a reasonable
decisionmaker.” McBane, 433 F.3d at 351.

Thus, we conclude that Moyer’s conviction was
sufficiently supported by evidence that he knowingly and
willfully made materially false statements to the FBI and we
will therefore affirm his conviction.

VI.
For the foregoing reasons, we will AFFIRM the
judgments of the District Court.

38