Petition for Writ of Certiorari — John Ching En Lee, Petitioner v. United States

No. 18In the

Supreme Court of the United States

JOHN CHING EN LEE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

K ari Hong

Counsel of Record

Boston College Law School

885 Centre Street

Newton, Massachusetts 02459

(617) 552-4390

kari.hong@bc.edu

Counsel for Petitioner

284575

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED FOR REVIEW

1.

When determining whether an alleged false

statement has a literal truth defense, may a court

isolate the ambiguous question or view it in the

totality of its real-world context?

2.

After Ajoku, to meet the requisite mens rea

under 18 U.S.C. § 1001(a)(2), must a defendant

have knowledge or a reckless disregard that the

underlying conduct of the lie was unlawful?

3.

Does Maslenjak’s “materiality” requirement

demand that the government establish that a

false statement influenced an actual decision of

an agency?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . 4

Initial Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

First False Statement (Predicate for Conviction) . . . 6

Second False Statement (Rule 29 Acquittal) . . . . . . . 9

REASONS FOR GRANTING THE PETITION . . . . 11

iii

Table of Contents

Page

I.

The Courts Are Divided Over How To Identify

And Define A “Fundamentally Ambiguous”

Question That Cannot Be A Predicate To A

False Statement Prosecution . . . . . . . . . . . . . . . 13

II. The Courts Are Divided Over The Meaning

Of The Mens Rea Necessary For A False

Statement Conviction . . . . . . . . . . . . . . . . . . . . . . 17

III. The Courts Are Divided Over The Meaning

Of “Materiality” . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iv

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED JUNE 6, 2018 . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA,

FILED SEPTEMBER 20, 2016 . . . . . . . . . . . . . . . . 4a

v

TABLE OF CITED AUTHORITIES

Page

CASES:

Ajoku v. United States,

___ U.S. ___, 134 S. Ct. 1872, 188 L. Ed. 2d 905

(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 18

Bronston v. United States,

409 U.S. 352, 93 S. Ct. 595, 34 L. Ed. 2d 568

(1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bryan v. United States,

524 U.S. 184, 118 S. Ct. 1939, 141 L. Ed. 197

(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Harris v. United States,

No. 2:12-CR-01085-CAS, 2017 WL 3443207

(C.D. Cal. Aug. 9, 2017) . . . . . . . . . . . . . . . . . . . . . . . . 17

Kungys v. United States,

485 U.S. 759, 108 S. Ct. 1537, 99 L. Ed. 2d 839

(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Maslenjak v. United States,

___ U.S. ___, 137 S. Ct. 1918, 198 L. Ed. 2d 460

(2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21

United States v. Ajoku,

584 Fed. App’x 824 (9th Cir. 2014) . . . . . . . . . . . . . . 18

United States v. Ajoku,

718 F.3d 882 (9th Cir. 2013) . . . . . . . . . . . . . . . . . 17, 18

vi

Cited Authorities

Page

United States v. Alvarez,

638 F.3d 666 (9th Cir. 2011) . . . . . . . . . . . . . . . . . 14, 15

United States v. Alvarez,

567 U.S. 709, 132 S. Ct. 2537, 183 L. Ed. 2d 574

(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Anderson,

741 F.3d 938 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 19

United States v. Blankenship,

846 F.3d 663 (4th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 18

United States v. Carrier,

654 F.2d 559 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . 17

United States v. Edwards,

303 F.3d 606 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . 21

United States v. George,

386 F.3d 383 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 19

United States v. Johnstone,

107 F.3d 200 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . 19

United States v. Kay,

513 F.3d 432 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . 19

United States v. Manapat,

928 F.2d 1097 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . 16

vii

Cited Authorities

Page

United States v. McBane,

433 F.3d 344 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . 21

United States v. Rapone,

131 F.3d 188 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . 19

United States v. Sarwari,

669 F.3d 401 (4th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 15

United States v. Trudeau,

812 F.3d 578 (7th Cir. 2016) . . . . . . . . . . . . . . . . . . 18-19

STATUTES:

18 U.S.C. § 1001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

18 U.S.C. § 1001(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 1030(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18 U.S.C. § 1035 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

18 U.S.C. § 1425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

18 U.S.C. § 1542 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

viii

Cited Authorities

Page

JURY INSTRUCTIONS

Ninth Circuit Jury Instruction 8.73 . . . . . . . . . . . . . . . . 17

OTHER AUTHORITY:

Jochen Mecke, Cultures of Lying (2007) . . . . . . . . . . . . 15

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner (Defendant-Appellee) John Ching En Lee

respectfully prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Ninth Circuit in this case.

This case presents three important legal questions

that arise in the prosecution of false statements against

the government.

First, it is established that a factually-true answer

to an ambiguous question is an insufficient predicate act

for a false statement conviction under 18 U.S.C. § 1001(a)

(2). However, the courts are divided on whether a court

may assess a statement for ambiguity in isolation or in the

actual context in which it as asked. Because Mr. Lee has

a literal truth defense, the Ninth Circuit erred in holding

that the question was not ambiguous.

Second, this case also presents whether a willful mens

rea arises when a defendant gives a factually-true answer

to an ambiguous statement. In Ajoku v. United States,

the Court did not define the requisite mens rea for a false

statement conviction because the parties agreed that their

instructions had been erroneous. The courts are divided

over whether knowledge or recklessness is needed. The

Ninth Circuit erred in not requiring knowledge when

upholding Mr. Lee’s conviction.

Third, this case presents an important legal question

as to the meaning of “materiality” in the context of

18 U.S.C. § 1001(a)(2) with respect to what must the

government establish to prove that a false statement

influenced a potential investigation.

2

Without this Court’s intervention, the lack of a

consistent and coherent interpretations of whether

ambiguous questions, the meaning of the willful mens

rea, and the meaning of the word “materiality” as used

in 18 U.S.C. § 1001(a)(2) will produce inconsistent and

unpredictable results in district courts and courts of

appeal. This case squarely presents these important and

recurring questions and is an ideal vehicle for the Court

to address these questions. For these reasons, Petitioner

respectfully requests that the Court grant his petition.

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals,

(App., infra, 1a–3a) was unpublished at 726 Fed. App’x.

589 and issued on June 6, 2018. The opinion of the district

court was unpublished and issued on September 20, 2016

(App. infra, 4a–24a).

JURISDICTION

The judgment of the court of appeals was entered on

June 6, 2018. (App., infra, 1a–3a). On August 24, 2018,

Chief Justice Roberts extended the time within which

to file a petition for a writ of certiorari to and including

November 2, 2018.

STATUTORY PROVISIONS INVOLVED

The Questions Presented implicates 18 U.S.C.

§ 1001(a)(2). The relevant text provides:

18 U.S.C. § 1001 Statements or entries generally

3

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—

[ . . .]

(2) makes any materially false, fictitious, or

fraudulent statement or representation

STATEMENT OF THE CASE

On February 28, 2014, by a complaint filed in the

Northern District of California, Mr. Lee was charged

with two felony counts of violating 18 U.S.C. § 1030(a)

(fraud and related activity in connection with a computer)

(Count 1) and violating 18 U.S.C. § 1001 (false statements)

(Count 2). On November 19, 2015, by indictment filed in

the Northern District of California, Mr. Lee was charged

with two felony counts of making false statements: Count

1 (false statement made on August 26, 2009 in violation of

18 U.S.C. § 1001(a)(2)) and Count 2 (false statement made

on October 10, 2013 in violation of 18 U.S.C. § 1001(a)(2)).

On June 28, 2016, a three-day trial commenced. On

June 30, 2016, a jury convicted Mr. Lee of both counts.

On August 5, 2016, Mr. Lee filed a Rule 29 motion

seeking acquittal or a new trial. On September 20, 2016,

the district court granted the motion for acquittal with

respect to Count 2 (false statement made on October

10, 2013) and upheld the conviction for Count 1 (false

statement made on August 26, 2009).

4

On October 14, 2016, for Count 1, the district court

imposed a sentence of two-years probation, a $500 fine,

and a special assessment fine of $100.00. On October 17,

2016, the district court signed the final judgment. October

18, 2016, Mr. Lee timely filed a notice of appeal.

STATEMENT OF FACTS

In 1975, when Mr. Lee was 14 years old, he came to

the United States. When he was 27 years old, he became a

U.S. citizen. He received a law degree and, in 2001, when

he was 40 years old, began working for the Immigration

Naturalization Service, which later was reorganized into

the U.S. Immigration and Citizenship Services agency. Mr.

Lee started as an adjudications officer and later became

an Immigration Services Officer whose responsibilities

included adjudicating applications for lawful permanent

residency and citizenship.

Mr. Lee met his wife Qingmin Liu through an ad

placed in a Chinese newspaper. He petitioned to have her

arrive as his fiancé, they married, and he later petitioned

for her lawful permanent residency, which was granted.

Initial Investigation

In 2008, Deputy Sheriff Leslie Severe, of the Contra

Costa County Sheriff’s Office, was a Vice detective who

focused her investigations on criminal activities relating

to prostitution, massage parlors, and illegal gambling.

In 2008, a patrol officer informed Deputy Severe that

the Crystal Massage Therapy business in Walnut Creek,

California may be of interest to her unit. Deputy Severe

“put together an undercover operation” and to determine

if undercover agents would be solicited for sexual activity.

5

In February 2008, the first undercover operation

occurred. In March 2008, Deputy Severe obtained a

search warrant, and on March 6, 2008, Deputy Severe

returned for a second undercover operation. At this time,

Deputy Severe found a room with a mattress that looked

like someone was living in the room. The police made

two arrests for solicitation of prostitution: Ms. Liu, who

was Mr. Lee’s wife and the owner of the business, and

an employee identified as Ms. Chen. Deputy Severe was

concerned that the mattress was evidence of “possible

human trafficking.”

Mr. Lee posted bail for both Ms. Liu and Ms. Chen.

Mr. Lee identified himself as Ms. Liu’s husband and

an immigration officer with the U.S. Citizenship and

Immigration Services. Deputy Severe contacted the

Immigration and Customs Enforcement agency (“ICE”)

to report her suspicions of human trafficking. Also, Deputy

Severe reported to ICE that Mr. Lee had bailed out the

owner of the massage parlor, and asked to confirm whether

Mr. Lee was or was not employed as an immigration

officer.

Ultimately, Deputy Severe’s suspicious of human

trafficking were unfounded. After an investigation, no

criminal charges relating to human trafficking were ever

brought against Ms. Liu. There was an employee living

at the massage parlor, but she was there on a temporary

basis to escape “domestic issues.”

No one from the Crystal Massage Parlor was convicted

of any crime. In October 2008, Ms. Liu was charged with

a misdemeanor count for solicitation of prostitution. That

same month, Crystal Massage Therapy ceased operating

and went out of business.

6

In June 2009, Ms. Liu received diversion, and in

November 2009, she completed pre-trial diversion. In

June 2010, Ms. Liu was granted citizenship.

First False Statement (Predicate for Conviction)

After Deputy Severe filed a complaint against Mr.

Lee, the Department of Homeland Security Office of the

Inspector General opened an investigation. Special Agent

Richard Fuentes was assigned to head the investigation.

Agent Fuentes testified that he remembered Deputy

Severe telling him that the sheriff’s office had “seized or

found information of a bank account with $50,000 in it.”

When asked to corroborate that memory, the only report

from Deputy Severe, was dated on March 19, 2008, and

in that report the deputy reported that Mr. Lee and Ms.

Liu had a joint Wells Fargo account with approximately

$15,000 in it.

In commencing the investigation, Agent Fuentes was

concerned that Mr. Lee might have improperly interfered

in processing any immigration claims for his wife’s

employees, might be involved in human trafficking, may

be receiving improper monetary compensation arising

from any improper business venture, or may be associated

with any criminal association that could subject him to

blackmail or involve him in criminal activity.

The investigation into these matters did not ripen into

criminal charges or convictions.

In August 2009, Agent Fuentes initiated an interview

with Mr. Lee to learn about Mr. Lee’s prior “financial

interest” in the Crystal Massage Therapy business. A

7

year earlier, Crystal Massage Therapy had gone out of

business. Agent Fuentes was aware of this fact before

scheduling the interview with Mr. Lee.

On August 26, 2009, Agent Fuentes and Special Agent

John Henderson met Mr. Lee at his office. This interview

lasted more than an hour and was neither recorded nor

transcribed. Mr. Lee also did not provide any written

statement.

During this interview, Agent Fuentes wanted to know

“how did [Ms. Liu] fund this business. So [he] asked [Mr.

Lee] . . . ‘Well, did you loan her or give her any money to

start this business?’” (emphasis added). Agent Fuentes

also testified that the question he asked was “if [Mr. Lee]

had actually funded or assisted that business.” (emphasis

added). Agent Fuentes further explained that “[i]n a

roundabout way I asked if [Mr. Lee] had ever provided

assistance. . . .” (emphasis added). To all questions, Mr.

Lee allegedly answered no.

Agent Fuentes took 13 pages of handwritten notes

during the meeting. Within two weeks, he prepared a

memoranda of the meeting, which indicated that his

investigation relating to “brothel operating as a massage

parlor.” On cross-examination, Agent Fuentes confirmed

that his notes do not have any mention of questions funding

the business. When asked again to restate the “precise

questions that you asked Mr. Lee regarding the funding

of the business”, Agent Fuentes answered “I don’t know.”

(emphasis added).

Agent Henderson, who was also at the interview, said

that he recalled only one instance of Agent Fuentes asking

8

a question relating to whether Mr. Lee funded his wife’s

business. He did not recall or record the exact wording

of that question.

In 2010, Special Agent Lamont Scott took over the

investigation from Agent Fuentes. His initial concerns

were whether Crystal Massage Therapy was engaging

in human trafficking and “what [Mr. Lee’s] overall

involvement might be” with the business. To that end,

Agent Scott looked at all 15 immigration files of those

who were associated with the Crystal Massage Therapy

business. For all individuals, including Ms. Liu, “Mr. Lee

did not have any kind of dealings with giving immigrants

any kind of benefits.” Agent Scott again investigated

potential human trafficking activity and concluded that

“there was no involvement of human trafficking with the

Crystal Massage Therapy.”

Agent Scott also wanted to know what degree Mr.

Lee was involved with the business so he sent out five

grand jury subpoenas to the Wells Fargo bank, where

he knew Mr. Lee and Ms. Liu had accounts based on the

2008 investigation by the county sheriff.

On August 29, 2013, Agent Scott interviewed Ms.

Liu about “Mr. Lee’s involvement with Crystal Massage

Therapy.” Following this interview, Agent Scott contacted

Mr. Lee and scheduled an appointment with him the next

day. No recording was made of this interview. Agent Scott

asked Mr. Lee “if he funded or put any money towards

Crystal Massage Therapy. How—and how she opened the

business.” To this question, Mr. Lee answered that he had

secured a $30,000 loan from Wells Fargo that he in turn

used the money to provided Ms. Liu with “a $30,000 loan

to open up the business.”

9

By stipulation, Mr. Lee “obtained two lines of credit

from Wells Fargo Bank in 2006 with an aggregate credit

limit of $34,000.” One, issued on July 20, 2006, was for

$19,000, and a second, opened on July 21, 2006, was for

$15,000.

Upon learning about this loan, Agent Scott was

“surprised” because he believed that in the August 2009

interview, Mr. Lee claimed that “he had no dealings

with—with her business and that he did not fund her

business.” Agent Scott claimed this information was

significant because if he had known about it in 2009, he

“would have been able to go directly and obtain the bank

loan—the bank information without sending numerous

subpoenas for numerous amounts of information.” Agent

Scott then sent out a subpoena to Wells Fargo about the

loan documentation and subpoenas to credit bureaus.

From the subpoenas, he confirmed that “there were two

lines of credit, one for 15,000 and one for 19,000,” which

were from July 2006.

The record then had eight different versions of

the question asked and answer provided. The parties

stipulated, and the jury was instructed that, “[t]he

statement charged in Count One is that Mr. Lee stated

‘no’ to the question whether he gave his wife any money to

fund her business.” (emphasis added). The jury convicted

Mr. Lee of this count.

Second False Statement (Rule 29 Acquittal)

Agent Scott also explained that Mr. Lee’s late

disclosure of the loan “showed [him] that—that he—he

lied to steer the investigation or do something to the

investigation to where he wouldn’t be found out about his

10

activity or involvement with the Crystal Message Therapy

Parlor; and to me he violated his ethics, his morals, and

everything that goes along with being an Immigration

Services officer.” Agent Scott’s outrage led him to

“wonder, what else was he involved in,” so he reached out

to another agent named Ryan Lid to investigate whether

Mr. Lee improperly ran background searches.

TECS, is the abbreviation for the “ Treasur y

Enforcement Communications System,” which is a

database that records border crossings and criminal

investigations. Officer Lid ran a query and determined

that, on March 19, 2009, Mr. Lee had run three searches

in the TECS database using “three different variations

of [his wife’s] name.”

On October 13, 2013, Agent Scott then scheduled an

interview with Mr. Lee to “talk to him about the TECS

queries that I’d found and see why he ran them.” This

meeting was not recorded.

Agent Scott asked Mr. Lee “whether he had made

[TECS] queries for personal use,” to which Mr. Lee

answered that “he didn’t recall, and then he said no.” Agent

Scott made more specific inquires relating to whether he

had searched himself, his wife, his friends, or his family.

Mr. Lee answered these questions by explaining he did

not remember, “I didn’t do it,” and “no.”

Agent Scott claimed he showed Mr. Lee a document

that showed that he had made three searches using three

iterations of his wife’s name. Agent Scott repeated his

questions, asking whether he ran any TECS searches

with respect to “family, friends, his wife, or himself.” Mr.

Lee said “no.”

11

The jury was instructed that “[t]he statement charged

in Count Two is that Mr. Lee stated ‘no’ to the question

whether he ever made any unauthorized queries of his

wife in the TECS for personal use.” On June 30, 2016, the

jury convicted Mr. Lee of this count.

On September 20, 2016, with respect to this count,

the district court granted Mr. Lee’s motion for acquittal

pursuant to Federal Rules of Criminal Procedure, Rule

29. The district court found that the statement lacked

materiality because the government’s arguments “read

like after-the-fact justifications.” Of note, Agent Scott

testified that he knew Mr. Lee’s denial was false when it

was made and he had internal proof of the falsity before

and during its occurrence. Despite this knowledge, the

government ‘failed to present at trial . . . what activities or

decisions by the DHS were or could have been influenced

by defendant’s October 2013 denial.”

REASONS FOR GRANTING THE PETITION

This case presents a situation in which a man was

convicted of giving a false statement to a government

agent when he provided a literally true answer of “no” to

the ambiguous question “whether he gave his wife any

money to fund her business.”

First, the verb “gave” suggests a gift. Mr. Lee had

loaned his wife money to start her business. As anyone

who has a mortgage or student loans can attest, a loan is

not a gift. It is reasonable for a lender to give a factuallytrue answer of “no” when asked if he had gifted a loan to

another. The district court dismissed this challenge on the

basis that the noun of “funding” can include bank loans.

12

Both the district court and court of appeals overlooked

that, the ambiguity arises not from “funding” but from

the verb “gave.”

Second, in 2014 in Ajoku v. United States, the Court

was presented with an opportunity to define the mens

rea underlying 8 U.S.C. § 1001(a)(2). Because the parties

agreed that the instructions were erroneous, the Court

did not reach that question. The courts are divided over

whether knowledge or reckless disregard is sufficient

for a false statement conviction. Because a factually-true

answer to an ambiguous statement does not meet the

knowledge standard, the Ninth Circuit erred.

Third, there is no question that federal courts interpret

“materiality” to be a low bar. If a lie or omission causes the

government agent to take a left when he or she would have

taken a right, the lie is usually material. But, even under

such a low threshold, the key question on these facts are

what would the government have done with information

if a lie or omission had revealed the information when it

was known. According to Agent Fuentes, if Mr. Lee had

affirmatively clarified that he had loaned his wife money

for her business, he would have asked for more financial

information and the investigation “could proceed in a

different way.” This answer does not establish materiality.

There is no showing that the loan was material to the

actual investigation over whether Mr. Lee was abusing his

power as an immigration officer in unethical or criminal

ways. Agent Fuentes’ vague statement that he would have

done something does not in fact show what decision the

agency was trying to make. Even if Mr. Lee’s answer was

an omission, it was not material to the abuse of power that

was the subject of the investigation.

13

I.

The Courts Are Divided Over How To Identify And

Define A “Fundamentally Ambiguous” Question

That Cannot Be A Predicate To A False Statement

Prosecution

As a matter of common sense and fairness, factuallytrue answers to ambiguous statements should not be

predicate acts for a federal felony conviction. As a legal

mater, the Supreme Court has long ago recognized that

“[p]recise questioning is imperative as a predicate for the

offense of perjury.” Bronston v. United States, 409 U.S.

352, 362, 93 S. Ct. 595, 602, 34 L. Ed. 2d 568 (1973).

As much as all courts agree on this principle,

identifying and defining when a statement is ambiguous,

or “fundamentally ambiguous,” to defeat a false statement

conviction has proven vexing.

This inquiry is far from theoretical.

In everyday life, every one—even the most upstanding

of us—tell lies much more often than we care to admit.

As observed by former Judge Alez Kozinski, among the

reasons for telling lies, deceptions can serve important

and legitimate purposes relating to privacy, safety, and

the benefit of others:

We lie to protect our privacy (“No, I don’t live

around here”); to avoid hurt feelings (“Friday

is my study night”); to make others feel

better (“Gee you’ve gotten skinny”); to avoid

recriminations (“I only lost $10 at poker”); to

prevent grief (“The doc says you’re getting

better”); to maintain domestic tranquility

14

(“She’s just a friend”); to avoid social stigma

(“I just haven’t met the right woman”); for

career advancement (“I’m sooo lucky to have

a smart boss like you”); to avoid being lonely

(“I love opera”); to eliminate a rival (“He has

a boyfriend”); to achieve an objective (“But I

love you so much”); to defeat an objective (“I’m

allergic to latex”); to make an exit (“It’s not you,

it’s me”); to delay the inevitable (“The check

is in the mail”); to communicate displeasure

(“There’s nothing wrong”); to get someone

off your back (“I’ll call you about lunch”); to

escape a nudnik (“My mother’s on the other

line”); to namedrop (“We go way back”); to

set up a surprise party (“I need help moving

the piano”); to buy time (“I’m on my way”);

to keep up appearances (“We’re not talking

divorce”); to avoid taking out the trash (“My

back hurts”); to duck an obligation (“I’ve got

a headache”); to maintain a public image (“I

go to church every Sunday”); to make a point

(“Ich bin ein Berliner”); to save face (“I had too

much to drink”); to humor (“Correct as usual,

King Friday”); to avoid embarrassment (“That

wasn’t me”); to curry favor (“I’ve read all your

books”); to get a clerkship (“You’re the greatest

living jurist”); to save a dollar (“I gave at the

office”); or to maintain innocence (“There are

eight tiny reindeer on the rooftop”).

United States v. Alvarez, 638 F.3d 666, 674 (9th Cir. 2011)

(Kozinski, J., concurring with denial of rehearing en banc).

15

Judge Kozinski recited the numerous reasons

and motives people have in lying when defending the

Ninth Circuit’s decision not to reconsider its decision

striking down the Stolen Valor Act as violating the First

Amendment. 638 F.3d at 674, affirmed by United States

v. Alvarez, 567 U.S. 709, 730, 132 S. Ct. 2537, 2551, 183

L. Ed. 2d 574 (2012).

Of note, Judge Kozinski argued that “[s]aints may

always tell the truth, but for mortals living means lying.”

638 F.3d at 674. Indeed, according to a study cited, the

average American lies two to 50 times each day. Id. at 675

(citing Jochen Mecke, Cultures of Lying 8 (2007)).

When the government then decides some of those lies

amount to felonies, the conduct must not rest on factuallytrue statements to ambiguous questions.

The circuits courts, however, are divided on whether

an ambiguous question is determined in isolation or in a

broader context.

The Fourth Circuit did not permit a literal truth

defense to immunize a man who was convicted in violation

of 18 U.S.C. § 1542 for stating he was the “father” to

the children on a passport application. United States

v. Sarwari, 669 F.3d 401, 409 (4th Cir. 2012). The man

explained that he considered himself the father to the

children whom he loved, financially supported, and who

loved him in return. Id. The Fourth Circuit took the very

rigid approach that technical meanings of “father” and

“step-father” in federal law trumped the real-world facts

by which the children and man viewed themselves as

having a parent and child relationship. Id.

16

By contrast, the Eleventh Circuit rejected Sarawai’s

approach of isolating the meaning of a term unmoored

from its applied context. In permitting a literal truth

defense to 18 U.S.C. § 1001(a)(2), the Eleventh Circuit

noted that numerous questions—when read in isolation—

present no ambiguity. United States v. Manapat, 928 F.2d

1097, 1101 (11th Cir. 1991). However, these same questions

present confusion when read together on a standardized

form “containing large numbers of general background

questions.” Id. In a departure from the Fourth Circuit’s

methodology, the Eleventh Circuit found ambiguity

because “the government must not remove questions

from the context in which their answers were given in an

attempt to prove their clarity.” Id.

Mr. Lee’s case then presents the ideal vehicle to

address this important question. He had answered “no”

to the question of “whether he gave his wife any money to

fund her business.” The verb “gave” suggests a gift, and

Mr. Lee had loaned his wife money to start her business.

As anyone who has a mortgage or student loans can attest,

a loan is not a gift. It is not unreasonable for a lender to

give a factually-true answer of “no” when asked if he had

gifted a loan to another.

The court of appeals and district court dismissed this

challenge reasoning that in isolation the noun of “funding”

can include bank loans. In doing so, the Ninth Circuit

eschewed the Eleventh Circuit’s methodology to look at

the question in its actual context. Because a literally true

answer was given, the questioner must be counseled to be

more precise. The Ninth Circuit erred in holding that the

question— “whether he gave his wife any money to fund

her business”—was clear.

17

II. The Courts Are Divided Over The Meaning Of

The Mens Rea Necessary For A False Statement

Conviction

A key issue in this case was whether there was

sufficient evidence that Mr. Lee had knowledge that

his conduct of funding his wife’s business was unlawful.

Under the relevant jury instructions, the wilful mens rea

is established when “the defendant acted deliberately and

with knowledge both that the statement was untrue and

that his or her conduct was unlawful.” Ninth Circuit

Jury Instruction 8.73 (emphasis added). In August 2017, a

district court affirmed the text of the instructions, finding

that “in order to violate section 1001, a person must act

with knowledge that their conduct is unlawful.” Harris

v. United States, No. 2:12-CR-01085-CAS, 2017 WL

3443207, at *6 (C.D. Cal. Aug. 9, 2017). Harris noted that

although there appears was no published Ninth Circuit

authority addressing this issue, it was “join[ing] other

district courts in this Circuit that have concluded” that

the contrary rule set forth in United States v. Carrier, 654

F.2d 559, 561 (9th Cir. 1981), which had been overruled

in Bryan v. United States, 524 U.S. 184, 191, 118 S. Ct.

1939, 141 L. Ed. 197 (1998) and United States v. Ajoku,

718 F.3d 882, 892 (9th Cir. 2013) (“Ajoku I”). See 2017 WL

3443207, at *6.

Accepting that rule as the correct one, the Government

had argued there is sufficient evidence that Mr. Lee’s

funding his wife’s business was unlawful because Mr.

Lee had a legal education, worked at the USCIS, and was

given Garrity warnings. All of those facts are true. But

none show that Mr. Lee had knowledge that a literally

true answer of “no” to the ambiguous question of whether

18

he “gave” funding to his wife for her business constitutes

“willful.”

In Ajoku I, a defendant was convicted of four counts

of making false statements relating to health care

matters in violation of 18 U.S.C. § 1035. 718 F.3d at 886.

The defendant had argued that three of the four false

statement convictions were not supported by sufficient

evidence because “he believed his statements to be true

and that some of the statements are true in the proper

context” and that he also did not know about a wheelchair

delivery scam that was underlying two of the counts. 718

F.3d at 888.

When the case was before the Supreme Court, the

high court vacated the case after the Solicitor General

acknowledged that he had erred in contending that a

defendant need not have knowledge that the unlawful was

conduct. Ajoku v. United States, ___ U.S. ___, 134 S. Ct.

1872, 188 L. Ed. 2d 905 (2014) (“Ajoku II”). On remand,

the Court resolved the matter in an unpublished decision,

remanding the case because it was “undisputed that

Ajoku’s jury received an erroneous instruction.” United

States v. Ajoku, 584 Fed. App’x 824, 824 (9th Cir. 2014)

(“Ajoku III”).

The Courts are divided over what mens rea meets the

willful requirement.

The Second Circuit, Third Circuit, Fourth Circuit,

Seventh Circuit, Ninth Circuit, and Circuit of the District

of Columbia permit “reckless disregard” to be adequate.

See United States v. Blankenship, 846 F.3d 663, 673–74

(4th Cir. 2017); United States v. Trudeau, 812 F.3d 578,

19

588–89 (7th Cir. 2016) (concluding that because meaning

of “willful” is “influenced by its context,” willful may be

defined in terms of reckless disregard); United States

v. Anderson, 741 F.3d 938, 948 (9th Cir. 2013) (stating

that “recklessness” is a “valid theor[y]” for establishing

defendant “willfully” engaged in criminal copyright

infringement); United States v. George, 386 F.3d 383, 392–

96 (2d Cir. 2004) (Sotomayor, J.) (concluding, after lengthy

survey of case law, that Bryan did not displace earlier

Supreme Court case law holding criminal “willfullness”

requires “only the minimum mens rea necessary to

separate innocent from wrongful conduct” and therefore

interpreting “willfully” requirement in criminal passport

fraud statute as proscribing “false statements that are

knowingly included in the passport application”); United

States v. Johnstone, 107 F.3d 200, 208–09 (3d Cir. 1997)

(willful means “either particular purpose or reckless

disregard”); United States v. Rapone, 131 F.3d 188, 195

(D.C. Cir. 1997) (defining “willful” for purposes of criminal

contempt as “deliberate or reckless disregard of the

obligations created by a court order”).

The Fifth Circuit disagrees, requiring only the

defendant’s knowledge that he did the act sufficient to

show willfulness. United States v. Kay, 513 F.3d 432,

447–48 (5th Cir. 2007) (concluding, post-Bryan, that a

“defendant’s knowledge that he committed the act is

sufficient” to constitute criminal willfulness”) (emphasis

added).

This case thus is an ideal vehicle to define what is

needed for a willful mens rea to make a false statement to

a government officer or agent. At a minimum, the willful

standard must require a heightened awareness that the

20

predicate conduct of the lie or omission is unlawful. Mr.

Lee does not meet that standard.

On this record, there is no evidence that Mr. Lee knew

that the conduct of giving his wife funding that she used in

her business was unlawful, because it was in fact lawful.

Mr. Lee’s statement about funding his wife’s business

was neither relevant nor material to the DHS investigation

into wrongdoing arising from the business’s operation or

into the government investigation into whether Mr. Lee

abused his position as a USCIS agent. The statement also

is established to be wholly collateral because Mr. Lee’s

financial support of his wife when she was starting up her

business was and is legal.

III. The Courts Are Divided Over The Meaning Of

“Materiality”

Maslenjak explained that materiality is established

in the 18 U.S.C. § 1425 context when “a person whose lies

throw investigators off a trail leading to disqualifying

facts gets her citizenship by means of those lies—no less

than if she had denied the damning facts at the very end

of the trail.” Maslenjak v. United States, ___ U.S. ___, 137

S. Ct. 1918, 1929, 198 L. Ed. 2d 460 (2017). “By contrast,

‘[w]illful misrepresentations made for other reasons, such

as embarrassment, fear, or a desire for privacy, were not

deemed sufficiently culpable to brand the applicant as

someone who lacks good moral character’—and so are

not generally disqualifying.” Id. at 1927 (quoting Kungys

v. United States, 485 U.S. 759, 780, 108 S. Ct. 1537, 99 L.

Ed. 2d 839 (1988)) (internal quotation marks and citiations

omitted).

21

Maslenjak suggests that “materiality” is not simply

met when the Government is inconvenienced.

But the Fifth Circuit explains that a false statement

need not actually influence a government decision. United

States v. Edwards, for example held it irrelevant that a

FBIT believed or was actually deceived by the defendant’s

representations. 303 F.3d 606, 637 (5th Cir. 2002).

The Third Circuit, by contrast, shares Maslenjak’s

more limited definition of materiality. A false statement is

material when it influences “an actual, particular decision

of the agency at issue. . . .” United States v. McBane, 433

F.3d 344, 350 (3d Cir. 2005).

Mr. Lee’s case is an ideal vehicle to address what

is needed to establish materiality because the evidence

established that even if his literally true statement to the

agent was an actionable omission, there is no showing that

information about his wife’s business funding was actually

or potentially relevant to the scope of the government’s

investigation.

The Ninth Circuit decision overlooked that:

• Mr. Lee’s wife’s business closed in 2008. This fact

begs the question of how was lawful conduct that

occurred before this business went out of business

at all relevant to any criminal investigation—

begun in 2013—that was focused on whether

Mr. Lee was benefitting or facilitating from any

criminal activity that occurred while the business

was operating.

22

• Agent Scott explained that he first subpoenaed

banking information from Wells Fargo in 2010,

which usually takes “about a month and a half or

so to get documents back. . . .” (in answering when

he sent out financial record requests, he answered

“I started sending them out in 2010, once I joined

the case.”). This too then begs the question of if

the agents had the information in 2010, what were

they doing in 2013 that had not already been done?

By not bringing any criminal charges, the Government’s

omission acknowledged that its subsequent actions were

unnecessary and not material.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

K ari Hong

Counsel of Record

Boston College Law School

885 Centre Street

Newton, Massachusetts 02459

(617) 552-4390

kari.hong@bc.edu

Counsel for Petitioner

November 2, 2018

APPENDIX

1a

APPENDIx A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED JuNE 6, 2018

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 16-10448

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN CHING EN LEE,

Defendant-Appellant.

April 12, 2018, Argued and Submitted,

San Francisco, California

June 6, 2018, Filed

Appeal from the United States District Court

for the Northern District of California,

D.C. No. 3:15-cr-00541-SI.

Susan Illston, District Judge, Presiding.

Before: WARDLAW and NGUYEN, Circuit Judges,

and OLIVER,* District Judge.

* The Honorable Solomon Oliver, Jr., United States District

Judge for the Northern District of Ohio, sitting by designation.

2a

Appendix A

MEMORANDUM**

Appellant John Ching En Lee (“Lee”) appeals the

district court’s denial of his motion for judgment of

acquittal following his jury trial conviction for making

a false statement to federal agents on the grounds that

there was insufficient evidence of the false statement made

to satisfy the elements of 18 U.S.C. § 1001(a)(2), and that

the district court erred by failing to specifically instruct

the jury on unanimity relative to which false statement

Lee made. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

1. We review whether there was sufficient evidence

to support a jury conviction de novo. U.S. v. VazquezHernandez, 849 F.3d 1219, 1229 (9th Cir. 2017). There

was ample evidence before the jury from which it could

conclude that the questions the investigators asked Lee,

numerous times in numerous iterations, about funding his

wife’s business were not misleading. Despite their clarity,

Lee did not admit that he had provided her a bank loan.

See U.S. v. Jiang, 476 F.3d 1026, 1028-30 (9th Cir. 2007).

Lee’s argument that these questions cannot support a

conviction under § 1001(a)(2) has no merit, because a

statement does not need to be recorded or transcribed

in order to support a conviction. Id. Moreover, the false

statement was material because the agents’ testimony

demonstrated it changed the scope of their investigation.

See U.S. v. De Rosa, 783 F.2d 1401, 1408 (9th Cir. 1986).

** This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

3a

Appendix A

Thus, there was sufficient evidence to satisfy the elements

of falsity, specific intent, and materiality under 18 U.S.C.

§ 1001(a)(2) given the lack of ambiguity in the possible

versions of the question posed as recalled by the agents

during their testimony at trial; the context of the interview

and Lee’s background and experience; the agents’

testimony as to the scope and course of their investigation;

and the absence of other extrinsic factors weighing against

conviction. See Jiang, 476 F.3d at 1029-30; U.S. v. Serv.

Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998).

2. Because Lee failed to preserve his objection to

the district court’s failure to give a specific unanimity

instruction for appeal, by stipulating to the false statement

he allegedly made, we review the district court’s failure

to instruct the jury on specific unanimity for plain error.

See U.S. v. Campbell, 42 F.3d 1199, 1204 (9th Cir. 1994);

Fed. R. Crim. P. 30. Plain error is “error that is clear

under the law and affects substantial rights.” Campbell,

42 F.3d at 1204. The district court did not plainly err

because a specific unanimity instruction was not required

in this case. The general unanimity instruction was

sufficient to charge the jury on the relevant law as there

was considerable evidence presented at trial to support

the parties’ stipulation regarding the false statement

Lee allegedly made. See 9th Cir. Model Crim. Jury

Instructions §§ 7.9, 8.73.

AFFIRMED.

4a

B THE UNITED

APPENDIx B —Appendix

ORDER oF

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIA, FILED

SEPTEMbEr 20, 2016

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

Case No. 15-cr-00541-SI-1

UNITED STATES OF AMERICA,

Plaintiff,

v.

JOHN CHING EN LEE,

Defendant.

September 20, 2016, Decided

September 20, 2016, Filed

SUSAN ILLSTON, United States District Judge

ORDER GRANTING IN PART AND DENYING

IN PART DEFENDANT’S MOTION FOR

JUDGMENT OF ACQUITTAL OR NEW TRIAL

Re: Dkt. No. 136

Defendant John Ching En Lee moves for a judgment

of acquittal or new trial on two charges of providing false

statements to a government agency. Docket No. 136.

5a

Appendix B

Argument on the matter was heard on September 16, 2016.

Having considered the arguments of the parties and the

papers submitted, the Court hereby GRANTS IN PART

and DENIES IN PART defendant’s motion.

BACKGROUND

Defendant was charged with two counts of making

false statements to the government in violation of 18

U.S.C. § 1001(a), based upon statements he made in

interviews with government agents on August 26, 2009,

and October 10, 2013. Docket No. 14. The first count of

the indictment charged defendant with “making false

statements to representatives of the Department of

Homeland Security about his involvement in providing

funding to the owner of Crystal Massage Parlor, who

was arrested for prostitution in relation to the Crystal

Massage Parlor. The statements and representations

were false because JOHN CHING EN LEE then and

there knew that he had provided $30,000 to the owner to

fund the Crystal Massage Parlor.” Id. at 1-2. The second

count charged defendant with “making false statements to

representatives of the Department of Homeland Security

about his use of Treasury Enforcement Communications

System (TECS) for personal reasons. The statements and

representations were false because JOHN CHING EN

LEE then and there knew that he had queried his own

name, as well as the name of the owner of the Crystal

Massage Parlor, using multiple spellings of the owner’s

name and using the owner’s birthdate.” Id. at 2.

6a

Appendix B

On June 30, 2016, a jury found defendant guilty of

both counts. Docket No. 123. Defendant now moves for

a judgment of acquittal under Federal Rule of Criminal

Procedure 29 or for a new trial under Rule 33. Docket No.

136. In the alternative, defendant “requests an evidentiary

hearing to determine whether the government committed

discovery violations, violated the Jencks Act, . . . or

otherwise committed constitutional error with respect to

the October 10, 2013 interview of Mr. Lee.” Id. at v.

LEGAL STANDARD

I.

Rule 29

Rule 29 of the Federal Rules of Criminal Procedure

requires the Court, on a defendant’s motion, to “enter a

judgment of acquittal of any offense for which the evidence

is insufficient to sustain a conviction.” Fed. R. Crim. P.

29(a).

The Court’s review of the constitutional sufficiency

of evidence to support a criminal conviction is governed

by Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61

L. Ed. 2d 560 (1979), which requires a court to determine

“whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” Id. at 319; see also McDaniel v. Brown,

558 U.S. 120, 133, 130 S. Ct. 665, 175 L. Ed. 2d 582 (2010).

This rule establishes a two-step inquiry:

7a

Appendix B

First, a . . . court must consider the evidence

presented at trial in the light most favorable to

the prosecution. . . . [And s]econd, after viewing

the evidence in the light most favorable to the

prosecution, the . . . court must determine

whether this evidence, so viewed, is adequate

to allow “any rational trier of fact [to find]

the essential elements of the crime beyond a

reasonable doubt.”

United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.

2010) (en banc) (quoting Jackson, 443 U.S. at 319) (final

alteration in Nevils).

II. Rule 33

“Upon the defendant’s motion, the court may vacate

any judgment and grant a new trial if the interest of

justice so requires.” Fed. R. Crim. P. 33(a). The Ninth

Circuit described the standard for granting a new trial in

United States. v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d

1206 (9th Cir. 1992), which it reaffirmed in United States

v. Kellington, 217 F.3d 1084 (9th Cir. 2000):

[A] district court’s power to grant a motion for

a new trial is much broader than its power to

grant a motion for judgment of acquittal. The

court is not obliged to view the evidence in the

light most favorable to the verdict, and it is free

to weigh the evidence and evaluate for itself

the credibility of the witnesses. . . . If the court

concludes that, despite the abstract sufficiency

8a

Appendix B

of the evidence to sustain the verdict, the

evidence preponderates sufficiently heavily

against the verdict that a serious miscarriage

of justice may have occurred, it may set aside

the verdict, grant a new trial, and submit the

issues for determination by another jury.

Kellington, 217 F.3d at 1097 (internal quotation marks

and citations omitted).

DISCUSSION

Defendant urges the Court to grant his motion

based on the following: as to Count One, he argues that

the evidence was insufficient to sustain a conviction as

to the elements of falsity, intent, and materiality; as to

Count Two, he argues that the evidence was insufficient

to sustain a conviction as to the elements of intent and

materiality. He also argues that the government’s case was

weak, that the government improperly and prejudicially

focused its case on prostitution, that the government

committed discovery and Jencks Act violations, that the

government’s closing argument was misleading, and that

the Court erred by not giving the defendant’s proposed

jury instruction on falsity.

I.

Count One

Defendant argues, in part, that his conviction on Count

One cannot stand because the government “did not offer

sufficient evidence to prove beyond a reasonable doubt the

exchange that was false, i.e., the precise question asked

9a

Appendix B

and the answer that was false.” Mot. at 12. The Court is

troubled by the fact that the August 26, 2009 interview

was not recorded and that the agents’ notes do not detail

the exact question asked. Nevertheless, “viewing the

evidence in the light most favorable to the prosecution,”

it finds that a “rational trier of fact could have found” the

element of falsity beyond a reasonable doubt. See Nevils,

598 F.3d at 1164.

There was much testimony at trial from the agent who

conducted the August 2009 interview regarding precisely

what he asked. DHS Agent Ricardo Fuentes testified as

follows:

Q. And what questions did you ask?

A. Based on that answer, I was actually

thinking now at this point well, how did she

fund this business. So I had asked him, I said,

“Well, did you loan her or give her any money

to start this business?”

...

Q. And what did you ask him?

A. I asked him if he had actually funded or

assisted with that business.

Tr. 236:20-237:9 (Fuentes Direct).

10a

Appendix B

Q. And so you asked him exactly “what about

funding the business” during that interview?

A. I asked him if he had ever given money to his

wife to fund this business, to start it up.

Q. Your precise question was, “If you ever —

Mr. Lee, have you ever given Ms. Liu any money

to start up the business?”

A. To fund the business, yes.

...

Q. The same question over and over again, “Did

you give” —

A. Right.

Q. — “your wife any money to fund the Crystal

Massage Parlor?”

A. Correct. If he had provided any funds to her.

Q. Is it, “Did you provide any funds to her,” or

“Did you give her any money to fund” —

A. I think I probably asked it around three

different ways.

Q. What three different ways did you ask him?

11a

Appendix B

A. Probably, “Have you ever funded this” —

“have you ever provided money to fund this

business,” and then he denied doing that. And

then later on I would ask him something similar

and he would deny it.

Tr. 260:7-261:5 (Fuentes Cross).

Q. You asked him that question, “Did you give

your wife any money to fund the business.” He

said no?

A. He denied that.

Tr. 261:17-19 (Fuentes Cross).

Q. You asked — you testified that you asked

Mr. Lee several times throughout the interview

about funding of the massage parlor; is that

right?

A. Correct.

Q. And that question was, “Did you give your

wife any money to fund her business”; correct?

A. Correct.

Tr. 276:7-13 (Fuentes Recross).

Q. And to the best of your recollection, the

precise terminology of that question was,

12a

Appendix B

“Did you give your wife any money to fund the

business”?

A. “Did you assist her with funding,” yes.

Q. “Did you assist her with funding” or “Did

you give her any money to fund”?

A. “Give her any money.”

Q. Which one is it?

A. “Give her any money.”

Q. “Did you give her any money to fund the

business”?

A. Right.

Tr. 277:11-21 (Fuentes Recross).

Q. Now, without reading your notes, do you

recall what specific thing the defendant said?

A. I asked him specifically if he had given money

to fund this business, and he specifically said,

“I have never funded this business.”

Tr. 278:11-15 (Fuentes Further Redirect).

DHS Agent John Henderson, who also participated in

the August 2009 interview, testified that he did not recall

13a

Appendix B

what question Agent Fuentes asked defendant during the

interview. Tr. 304:17-20; 306:19-307:16.

Although the testimony varies as to the exact wording

of the question asked, it shares a common thread: the use

of the word “fund” or “funding,” which defendant attacks

as ambiguous. Although this word may be susceptible to

the interpretation that defendant put forward at closing

argument—that it could be asking whether Mr. Lee

funded his wife’s business with money out of his own

pocket rather than with a loan he obtained from a bank—a

rational trier of fact could have found that the term

“fund” included obtaining a loan. Moreover, upon further

questioning from both defense counsel and government

counsel, Agent Fuentes settled on the phrasing of his

question as follows: “Did you give her any money to fund

the business”? or “. . . specifically if he had given money

to fund this business . . . .”1 See Tr. 277:11-21; 278:11-15.

In this scenario, the operative term is not “fund” but is

rather “give.” A rational trier of fact could have found the

element of falsity by concluding that whether Mr. Lee

gave money to his wife for her business included giving

her money he borrowed from a bank.

Defendant cites to two Ninth Circuit cases that, though

analogous, do not justify overturning the jury’s verdict

here. The first, United States v. Sainz, 772 F.2d 559 (9th

Cir. 1985), involved a perjury conviction where the grand

1. This is also the phrasing the parties agreed to in the jury

instructions: “The statement charged in Count One is that Mr. Lee

stated: ‘No’ to the question whether he gave his wife any money

to fund her business.” See Docket No. 121 at 36.

14a

Appendix B

jury transcript clearly documented the exchange at issue.

In that case, the question asked was a compound question

containing an imprecise term, to which the defendant

gave a literally true answer. See 772 F.3d at 563-64. The

second case, United States v. Jiang, 476 F.3d 1026 (9th Cir.

2007), involved a bench trial for a charge involving false

statements to the government under 18 U.S.C. § 1001(a).

The appeals court overturned the conviction in part based

on factors that are not present here: that the agent’s notes

“were recorded some time after the day of the interview”

rather than contemporaneously, as here, see Tr. 242:1118, 250:1-3, 283:9-11, 299:2-10; that the agent requested

that Jiang bring documents to the interview regarding

the specific topics at issue, unlike here, where the agents

did not tell Mr. Lee the interview topic in advance, see

Tr. 194:21-195:4; and that Jiang’s English was “broken”

and “poor.”

Defendant argues that his case is also analogous

because, when questioned directly in August 2013

about whether he obtained a loan for his wife, he was

forthcoming, as were the defendants in Sainz and Jiang.

However, those cases involved much shorter lapses in

time between the challenged question and the follow-up

question that elicited the truthful response. See Jiang,

476 F.3d at 1028-29 (follow-up question asked one week

after original interview); Sainz, 772 F.2d at 561 (followup question asked during the same interview). Here,

defendant gave his truthful answer four years after the

alleged false statement, after his wife had revealed to

agents that her husband had gotten a bank loan for her to

purchase the massage parlor. Viewing the evidence here

15a

Appendix B

in the light most favorable to the prosecution, as it must,

the Court cannot say that the evidence is insufficient as

to the element of falsity in Count One.

The Court also disagrees with defendant that the

evidence was insufficient to sustain a conviction on

the elements of materiality and intent. A statement is

material if it “is capable of influencing or affecting a

federal agency,” although the false statement “need not

have actually influenced the agency.” United States v.

Service Deli, Inc., 151 F.3d 938, 941 (9th Cir. 1998); see

also United States v. De Rosa, 783 F.2d 1401, 1408 (9th

Cir. 1986) (statement is material if it “(1) could affect

or influence the exercise of governmental functions; or

(2) has a natural tendency to influence or is capable of

influencing agency decision”). Even adopting the stated

purposes for the investigation that defendant puts forth

in his motion, a rational juror could have concluded that

the false statement in Count One was material to DHS’s

actions. See Mot. at 16. Further, a rational juror could

have concluded that defendant had the requisite intent 2

because, as the government notes, he had a law degree,

he had worked as a federal employee since 2001, and at

the beginning of the interview he signed a Garrity form

warning him that “[a]nything you say may be used against

you as evidence both in an administrative proceeding or

any future criminal proceeding.” See Oppo. at 8-9.

2. Defendant’s motion here focuses on whether there was

sufficient evidence that he “knew his conduct was unlawful.” See

Mot. at 15.

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Appendix B

For these reasons, the Court DENIES defendant’s

motion for a judg ment of acquittal as to Count

One. Likewise, finding that the evidence does not

“preponderate[]sufficiently heavily against the verdict,”

the Court DENIES defendant’s motion for a new trial on

Count One. See Kellington, 217 F.3d at 1097.

II. Count Two

Defendant also moves for acquittal as to Count Two.

The Court agrees with defendant that the evidence, even

viewed in the light most favorable to the prosecution, is

insufficient to sustain a conviction on Count Two because

no rational trier of fact could find the essential element of

materiality beyond a reasonable doubt.

At trial, the government introduced evidence that on

March 19, 2009, defendant ran three queries of his wife’s

name in TECS, to which he had access as an Immigration

Services officer. Tr. 378:2-379:10. Four and a half years

later, on October 10, 2013, DHS Office of Inspector General

Special Agent Lamont Scott interviewed defendant

regarding his TECS usage, “to find out why he ran his

wife in the TECS system . . . .” See Tr. 317:14-318:8;

386:10-387:4.

The jury found defendant guilty based on the following

instruction:

Mr. Lee is charged in Count Two with knowingly

and willfully making a false statement on or

about October 10, 2013, in a matter within

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Appendix B

the jurisdiction of a governmental agency or

department, the United States Department of

Homeland Security, in violation of Section 1001

of Title 18 of the United States Code. In order

for Mr. Lee to be found guilty of that charge, the

government must prove each of the following

elements beyond a reasonable doubt:

First, Mr. Lee made a false statement in a

matter within the jurisdiction of the Department

of Homeland Security;

Second, Mr. Lee acted willfully; that is, Mr.

Lee acted deliberately and with knowledge

both that the statement was untrue and that

his conduct was unlawful; and

Third, the statement was material to the

activities or decisions of the Department

of Homeland Security; that is, it had a

natural tendency to influence, or was capable

of influencing, the agency’s decisions or

activities.

The statement charged in Count Two is that

Mr. Lee stated: “No” to the question whether

he ever made any unauthorized queries of his

wife in TECS for personal use.

Docket No. 121 at 37 (emphasis added).

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Appendix B

Defendant argues first that the statement in question

could not have been material because “Agent Scott told

the grand jury that the purpose [of his investigation] was

to ‘determine if Mr. Lee was associated with the brothel

operating as a massage parlor’” and the massage parlor

closed five years before the interview regarding the

TECS search. Mot. at 17 (citing Tr. 424). The government

counters that the March 2009 search date was “significant

to [Special Agent Scott] because it raised the specter

that Defendant had impermissibly run the queries to

obtain restricted information about [his wife’s] judicial

proceedings or immigration status, or both.” Oppo. at

15. But what the government fails to state, and what it

failed to present at trial, was what activities or decisions

of DHS were or could have been influenced by defendant’s

October 2013 denial.

The government’s arguments that there was sufficient

evidence as to materiality read rather like after-the-fact

justifications. For instance, the government argues that

defendant’s August 2013 admission that he had obtained

a bank loan for his wife “called Defendant’s overall

credibility into question” and so Special Agent Scott “then

expanded his investigation to include Defendant’s use of

the TECS system . . . .” Oppo. at 14. That Special Agent

Scott decided, years into the investigation of defendant, to

explore the possibility of TECS misuse years before does

not mean that a false statement regarding that misuse

was material. Nor is there materiality in the government’s

assertion that the TECS question “was certainly an

important part of the investigation regarding [defendant’s]

connection with Crystal Massage Therapy” when the

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Appendix B

business had been closed for several years by the time of

the October 2013 interview. See id. at 15.

It is also not persuasive that if defendant had been

forthcoming in October 2013 this would have saved the

agency “further investigative steps” into his TECS

queries. Special Agent Scott testified that in February

2014 and April 2014 he requested further documentation

about defendant’s queries and TECS history from

Customs and Border Protection. Tr. 327:10-14, 399:2-25,

406:6-17. Special Agent Scott’s reasons for wanting these

documents were broad, 3 but several of the documents (a

copy of the TECS exam, defendant’s training records)

appear to be related to TECS training, and Special Agent

Scott testified that he had an opportunity to question

defendant about TECS training during the October 2013

interview. See id. 393:1-9, 399:12-16.

Critically, Special Agent Scott testified that he knew

defendant was lying at the October 2013 interview. Prior to

the October 2013 interview, Special Agent Scott obtained

a print-out from TECS showing defendant’s March 2009

queries of his wife’s name. Tr. 395:25-396:11. Therefore,

before defendant made the false statement, the agency had

internal proof that defendant had run such a search, and

Special Agent Scott testified that he confronted defendant

3. Special Agent Scott testified that he wanted the information

“[t]o gain more information into who Mr. Lee was and how he had

authority, what his training was, all to basically let me know that

he had — he knew about TECS training, he knew about the rules

and the regulations, he was a TECS user, to provide me more

backup documentation.” Tr. 399:17-22.

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Appendix B

with this information at the interview.4 Tr. 395:25-396:17.

Special Agent Scott further testified that “the answers

that he was giving me in my opinion were not true” and

that after Special Agent Scott confronted defendant with

the document he “asked [defendant] a series of questions

over again.” Tr. 396:12-24. Where the agency knew that

defendant’s statement was false at the time it was made,

the government’s evidence does not suffice to show

materiality.

Accordingly, the Court GRANTS defendant’s motion

for judgment of acquittal on Count Two. Where a court

“enters a judgment of acquittal after a guilty verdict,

the court must also conditionally determine whether any

motion for a new trial should be granted if the judgment

of acquittal is later vacated or reversed.” Fed. R. Crim.

P. 29(d)(1). For the same reasons stated above that the

Court finds a judgment of acquittal should be granted,

and because the evidence regarding the element of

materiality in Count Two “preponderates sufficiently

heavily against the verdict that a serious miscarriage of

justice may have occurred,” the Court conditionally finds

that a new trial should be granted if this judgment of

acquittal is later vacated or reversed. See Kellington, 217

4. Defendant states that the first time he learned of the

allegation regarding the TECS print-out was upon hearing Special

Agent Scott’s testimony at trial. Mot. at 10. No mention of the

TECS printout is made in the Scott’s notes or report, or those of

his assistant, Special Agent Lee, nor is a copy of it appended to any

of those documents. These allegations form the basis of defendant’s

argument regarding discovery violations and his request for an

evidentiary hearing.

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Appendix B

F.3d at 1097. Should that occur, the Court further finds

that an evidentiary hearing in advance of the new trial is

necessary for the reasons stated in defendant’s motion.

See Mot. at 26-27.

III.

Other Matters

Having granted defendant’s motion for acquittal

on Count Two, the Court need not rule on defendant’s

allegations regarding potential discovery and Jencks Act

violations, defendant’s concerns with the government’s

closing argument, 5 and defendant’s request for an

evidentiary hearing.6 The Court is not persuaded by

defendant’s argument that “the government’s case was

weak at best,” see Mot. at 19, as the Court is granting

defendant’s motion for a judgment of acquittal as to the

weakest part of the government’s case—materiality under

Count Two. This leaves defendant’s arguments that the

Court erred in failing to give his proposed instruction on

falsity and that the trial was improperly prejudiced by

references to prostitution.

The Court does not find that it was error to fail to

give defendant’s proposed instruction on falsity.7 First,

5. These concerns pertain primarily to the timing of

defendant’s TECS query.

6. This request is largely made to gather evidence in support

of the defense’s attack on Count Two.

7. Defendant sought the following instruction: “If you find

that a particular question asked of Mr. Lee was ambiguous and

that Mr. Lee truthfully answered one reasonable interpretation of

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Appendix B

the Court does not find that the agent’s question in this

case was ambiguous to the same extent as the questions

in Jiang and Sainz, which defendant cites in support.

Second, the Court heard extensive argument on this point

from both sides prior to the close of trial. See Tr. 563:17568:11. The Court permitted defense counsel to make the

argument contained in the proposed instruction during

closing, and defense counsel did so. See Tr. 568:6-11, 622:15 (“If you all can decide on the exact question that Agent

Fuentes asked, that question still has to be clear. If that

question is ambiguous and there is a reasonable response

to that ambiguous question, it is not a false statement. That

is not a knowing and deliberate false statement.”) The

jury heard this argument and still convicted defendant

on Count One.

The Court also finds that references to prostitution

did not unfairly prejudice the jury, as defendant argues.

The Court discussed this with the parties during the

pretrial conference and again during the first day of

trial. See Docket No. 105 at 2; Tr. 5:1-13:20. The Court

limited the government to one witness on the topic of

the alleged prostitution activities and ordered “that the

testimony shall be for the purpose of showing how the

massage parlor’s allegedly illegal activities triggered

DHS’s investigation and how defendant’s statements were

material to that investigation.” Docket No. 105 at 2. The

Court does not agree with defendant that the government

exceeded those bounds at trial.

the question under the circumstances presented, then his answer

would not be false. It is the burden of the government agents to

clarify any ambiguous statements.” Docket No. 119 at 2.

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Appendix B

Defendant mainly takes issue with two pieces of

testimony: (1) that government witness Leslie Severe

testified that “undercover agents ‘were solicited for

some type of sexual activity’” at the massage parlor, and

(2) that “Agent Fuentes testified that he read a portion

of the police report to Mr. Lee during the August 2009

interview stating that Ms. Liu solicited sex from an

undercover agent . . . .” See Mot. at 21-22. As to Ms.

Severe’s testimony, the government asked Ms. Severe on

direct examination to respond “based on your personal

observations.” Tr. 157:18-22. When Ms. Severe stepped

beyond those boundaries, defense counsel made a hearsay

objection that the Court sustained. Tr. 157:23-158:6. Nor

does the Court find that it was impermissible hearsay

for Ms. Severe to testify as to the direction she gave her

officers regarding when to use a “bust signal.” See Tr.

160:23-162:2. As to Agent Fuentes’s testimony that he

read a police report regarding defendant’s wife’s alleged

solicitations, the Court gave a limiting instruction to the

jury. Tr. 198:24-199:22. The references to defendant’s

wife’s actions constituted only a brief portion of Agent

Fuentes’s lengthy testimony, and was drawn out to show

the effect on the listener as well as to explain why Agent

Fuentes still remembered the interview conducted nearly

seven years earlier. See Tr. 199:24-200:17. Overall, these

limited references to sexual activity at the massage parlor

did not “impermissibly taint[] the verdict,” as defendant

argues. See Mot. at v.

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Appendix B

CONCLUSION

For the foregoing reasons and for good cause shown,

the Court hereby DENIES defendant’s motion for

judgment of acquittal or a new trial on Count One. The

Court GRANTS defendant’s motion for judgment of

acquittal on Count Two.

IT IS SO ORDERED.

Dated: September 20, 2016.

/s/ Susan Illston

SUSAN ILLSTON

United States District Judge