Petition for Writ of Certiorari — Alexander Samuel Smith, Petitioner v. United States
Supreme Court briefMar 1, 2023
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No. 22In the
Supreme Court of the United States
ALEXANDER SAMUEL SMITH,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the United States
Court of A ppeals for the Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
James W. Kilbourne, Jr.
Counsel of Record
A llen Stahl & Kilbourne, PLLC
Twenty Town Mountain Road
Asheville, North Carolina 28801
(282) 254-4778
jamesk@asklawnc.com
Charles D. Swift
Constitutional Law Center
for Muslims in A merica
833 E. Arapaho Road, Suite 102
Richardson, Texas, 75081
Counsel for Petitioner
319346
A
(800) 274-3321 • (800) 359-6859
QUESTION PRESENTED
As Justice Ginsburg warned in Brogan v. United States, 18 U.S.C.
§1001(a) “arms Government agents with authority not simply to apprehend
lawbreakers, but to generate felonies, crimes of a kind that only a
Government officer could prompt.” 522 U.S. at 409 (Ginsburg, J.,
concurring in the judgment). This warning was made manifest in the
prosecution of Alexander Samuel Smith, whose conviction is based on his
failure to recall the truth amongst the web of lies spun by government
investigators and undercover contractors.
The question presented is:
Whether a statement made to FBI agents can be material and
knowingly false under 18 U.S.C. §1001(a) when the criminal
enterprise underlying the statement was completely fabricated by
those same agents.
i
PARTIES TO THE PROCEEDING
There are no parties to the proceedings other than those listed in the
caption. The Petitioner is Alexander Samuel Smith, the defendant in
proceeding below. The Respondent is The United States of America.
__________________________
RELATED CASES
· United States of America v Alexander Samuel Smith, No. 3:17-cr-182, U.S.
District Court for the Western District of North Carolina. Judgment entered
August 11, 2020.
· United States of America v Alexander Samuel Smith, No. 20-4414, U. S.
Court of Appeals for the Fourth Circuit. Judgment entered December 1,
2020.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED .............................................................................. i
PARTIES TO THE PROCEEDING ............................................................... ii
RELATED CASES ......................................................................................... ii
TABLE OF CONTENTS............................................................................... iii
TABLE OF CITED AUTHORITIES ............................................................ iv
PETITION FOR A WRIT OF CERTIORARI ............................................... 1
OPINIONS BELOW....................................................................................... 1
JURISDICTION ............................................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED.......................................................................................... 2
STATEMENT OF THE CASE ...................................................................... 3
REASONS FOR GRANTING THE PETITION.......................................... 10
1.
False Statements regarding a fictional world created by
the investigating agency cannot be material because
they cannot influence the investigating agency ....................... 15
2.
The Fourth Circuit ignored this Court and the Third
Circuit’s holdings that non-responsive or literally true
statements about a fictional world cannot support a
conviction under §1001 ............................................................ 19
3.
The history of §1001 does not support its application to
a government-created scheme .................................................. 24
4.
Although entrapment has not historically applied to
§1001, the FBI’s use of sting operations requires a
reevaluation .............................................................................. 28
5.
A similar bright-line rule prevents a defendant from
conspiring or aiding or abetting a government agent............... 29
CONCLUSION ............................................................................................. 31
iii
TABLE OF CITED AUTHORITIES
Page(s)
Cases:
Brogan v. United States,
522 U.S. 398 (1998) ......................................... 9, 10, 15, 18, 26, 28, 29
Bronston v. United States,
409 U.S. 352 (1973) ............................................................... 19, 20, 21
Bryson v. United States,
396 US 64 (1969) ............................................................................... 25
Haynes v. United States,
319 F.2d 620 (5th Cir. 1963) .............................................................. 31
Jacobson v. United States,
503 U.S. 540 (1992) ........................................................................... 29
Kungys v. United States,
485 U.S. 759 (1988) ............................................................... 16, 18, 26
Lewis v. United States,
385 U.S. 206 (1966) ........................................................................... 27
Mathews v. United States,
485 U.S. 58 (1988) ............................................................................. 28
Morrison v. California,
291 U.S. 82 (1934) ............................................................................. 29
O'Brien v. United States,
51 F.2d 674 (7th Cir. 1931) ................................................................ 30
Rogers v. United States,
340 U.S. 367 (1951) ........................................................................... 30
Sears v. United States,
343 F.2d 139 (5th Cir. 1965) .............................................................. 30
United States v. Barger,
931 F.2d 359 (6th Cir. 1991) .............................................................. 30
United States v. Barnes,
604 F.2d 121 (2d Cir. 1979)................................................................ 30
iv
United States v. Beacon Brass Co., Inc.,
344 US 43 (1952) ............................................................................... 25
United States v. Black,
742 F.2d 1457 (6th Cir. 1984) ............................................................ 17
United States v. Bramblett,
348 US 503 (1955) ............................................................................. 25
United States v. Bush,
503 F2d 813 (5th Cir 1974) ................................................................ 25
United States v. Castro,
704 F.3d 125 (3d Cir. 2013).................................................... 21, 22, 23
United States v. Chase,
372 F.2d 453 (4th Cir. 1967), cert. denied,
387 U.S. 907 (1967) ........................................................................... 30
United States v. Cohn,
270 US 339 (1926) ............................................................................. 24
United States v. Dimeck,
24 F.3d 1239 (10th Cir. 1994) ............................................................ 30
United States v. Escobar de Bright,
742 F.2d 1196 (9th Cir. 1984) ............................................................. 30
United States v. Gaudin,
515 U.S. 506 (1995) ........................................................................... 26
United States v. Gilliland,
312 U.S. 86 (1941) ............................................................................. 24
United States v. Giry,
818 F.2d 120 (1st Cir. 1987) ............................................................... 29
United States v. Gould,
419 F.2d 825 (9th Cir. 1969) .............................................................. 31
United States v. Holley,
942 F.2d 916 (5th Cir. 1991) .............................................................. 17
United States v. Hornaday,
392 F.3d 1306 (11th Cir. 2004)........................................................... 30
v
United States v. Manotas-Mejia,
824 F.2d 360 (5th Cir. 1987) .............................................................. 30
United States v. Meinster,
619 F.2d 1041 (4th Cir. 1980) ............................................................ 31
United States v. Pennell,
737 F.2d 521 (6th Cir. 1984) .............................................................. 30
United States v. Rodgers,
466 US 475 (1984) ............................................................................. 26
United States v. Sarihifard,
155 F.3d 301 (4th Cir. 1998) .............................................................. 17
United States v. Sarwari,
669 F.3d 401 (4th Cir. 2012) .............................................................. 20
United States v. Stone,
429 F.2d 138 (2d Cir. 1970)................................................................ 17
United States v. Strickland,
245 F.3d 368 (4th Cir. 2001) .............................................................. 30
United States v. Vasquez,
874 F.2d 1515 (11th Cir. 1989)........................................................... 30
Statutes & Other Authorities:
18 U.S.C. § 1001 ................... 10, 12, 14, 15, 16, 19, 21, 22, 24, 25, 26, 27, 28
18 U.S.C. § 1001(a) ........................................................................................ 2
18 U.S.C. § 1001(a)(2).................................................................................... 8
28 U.S.C. § 1254(1) ........................................................................................ 1
4 WILLIAM BLACKSTONE, Commentaries ..................................................... 16
Act of Mar. 2, 1863, Ch. 67, 12 Stat. 696-697 ............................................. 24
Act of Oct. 23, 1918, Ch. 194, 40 Stat. 1015-1016 ...................................... 24
Press Release, U.S. Dept. of State, Remarks to the Friends of the
Syrian People (Dec. 12, 2012), https://goo.gl/QmjOc2 .............................. 4
Sup. Ct. Rule 10(a) ....................................................................................... 10
vi
Sup. Ct. Rule 10(c) ....................................................................................... 10
Trial and Terror, THE INTERCEPT, https://trial-andterror.theintercept.com .............................................................................. 27
vii
PETITION FOR A WRIT OF CERTIORARI
ALEXANDER SAMUEL SMITH respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of Appeals for
the Fourth Circuit in this case.
__________________________
OPINIONS BELOW
The opinion of the U.S. Court of Appeals for the Fourth Circuit is reported at
54 F.4th 755 and is reproduced in the Appendix (“App”) at 2a to 41a. The
Judgment issued by the District Court is not reported.
__________________________
JURISDICTION
The Fourth Circuit Court of Appeals entered judgment on Dec 1, 2022. This
Court’s jurisdiction rests on 28 U.S.C. § 1254(1).
__________________________
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The statute outlining the criminal offense of making false statements to a
government agency provides as follows:
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;…shall be fined under this title, imprisoned not more
than 5 years or, if the offense involves international or domestic
terrorism (as defined in section 2331), imprisoned not more than 8
years, or both…” 18 U.S.C. §1001(a)
2
STATEMENT OF THE CASE
The FBI’s investigation of Alexander Samuel Smith was not your
average sting operation. In Mr. Smith's case, the government fabricated an
entire criminal enterprise out of whole cloth, consisting exclusively of
fictional characters. In fact, Mr. Smith was the only person involved in this
fictional criminal enterprise who was not a persona created by the FBI. See
Fourth Circuit Joint Appendix (“JA”) 372, 388, 389, 391-2. This charade
was transparent: “This is a made-up script. This isn’t real. The
[investigators] created the facts, the scenario, the background, and
everything else. Without them there would be no ISIS. There was no real
Mohamed Hilal. There was no real Abu Khalid.” JA 372. The government
then prosecuted Mr. Smith for alleged false statements regarding this fictious
plot created by the FBI and undercover operatives.
1.
The FBI created “Abu Khalid” and a fictional recruitment
scheme. In 2004, Mr. Smith was a wayward youth and high school dropout
who was taken in by Wael Kodaimati, a naturalized citizen and a Muslim,
whose son was the same age as Mr. Smith. Mr. Smith became part of the
Kodaimati family and adopted their religion. When the Syrian Civil War
broke out in 2011, Mr. Kodaimati’s wife and some of his family were
trapped in the village of Kafr Hamrah, a suburb of Aleppo in an area
3
contested by the Assad regime, the Free Syrian Army, and ISIS. JA 385, 387,
397, 435, 506, 544, 545, 547, 661, 664, 667, and 749.
According to agents of the Federal Bureau of Investigation, their
Memphis field office received information in June 2014 from an FBI source
that Mr. Smith had asked for assistance to travel to Syria to participate in the
Syrian revolution. JA 489. In the summer of 2014, the war in Syria had been
waging for more than three years and the situation was extraordinarily
convoluted. Forces loyal to President Bashar al-Assad were battling a
myriad of rebel groups including the Free Syrian Army,1 Kurdish separatists,
the Salafist jihadist organization Al-Nusra Front, the Islamic State of Iraq
and Syria (ISIS), and others. The United States opposed Assad’s
government and provided aid to the Supreme Military Council, a coalition of
rebels in opposition to Assad’s regime. In September 2013, a number of
Salafi jihadist and other Sunni Islamic fundamentalist groups left the
Supreme Military Council to form the Islamic Coalition. Around the same
time, ISIS began making gains in Syria from their strongholds in Iraq.
It was against this complex backdrop that the FBI began their
1
At that time, the Free Syrian Army was a member of the Syrian National
Coalition, the - representative of the Syrian people recognized by the
United States government. See Press Release, U.S. Dept. of State,
Remarks to the Friends of the Syrian People (Dec. 12, 2012),
https://goo.gl/QmjOc2 (archived Apr. 13, 2015).
4
investigation of Mr. Smith. The FBI used an undercover source who was
asked “to play a role that’s… not their true self to help us get to the truth of a
matter in an investigation.” JA 493. The undercover contractor was assigned
the persona of “Abu Khalid,” who pretended to be an ISIS recruiter. JA 495,
653, 660. All of the meetings between Mr. Smith and “Khalid” were in
Arabic, were recorded, and were shared with the jury during their
deliberations. Only excerpts were played during the trial.
Over the course of a year, playing his role as an ISIS recruiter,
“Khalid” told Smith that “he was helping brothers go to Syria to join ISIS.”
JA 507. On multiple occasions “Khalid” expounded on the glories of joining
ISIS and asked Mr. Smith to send him the names of other Muslims who
wanted to fight in Syria. JA 728, 739. Mr. Smith gave him no names. Id.
In an initial meeting on August 7, 2014, Mr. Smith explained to Abu
Khalid that he wanted to go to Syria to help defend Wael Kodaimati’s
family. JA 504, 505. Soon after, “Khalid” introduced Smith to another FBI
contractor using the pseudonym “Bilal.” JA 507, 509. “Bilal” was playing
the role of someone Mr. Smith could work with to obtain money in order to
travel to Syria. JA 509. Mr. Smith worked side by side with “Bilal” for
several months rebuilding cars and undertaking construction jobs. “Bilal”
did not testify at trial.
5
During the course of their conversations, Mr. Smith indicated he was
able to obtain a “buddy pass” from his girlfriend, which allows standby
travel for friends and family members of employees of commercial airlines.
JA 515, 700. Four months later, “Khalid” asked Mr. Smith to obtain a
“buddy pass” for “Mohamed Hilal,” described as a computer genius and a
“brother that we need a lot….” JA 520, 765. “Khalid” did not say
“Mohamed Hilal” was going to Syria nor did he mention ISIS directly. JA
564. “Khalid” gave Mr. Smith Mohamed Hilal’s “name,” a false date of
birth and $80 cash for the buddy pass. JA 523. Critically, “Mohamed Hilal”
was not an actual person; thus, so no one ever used the buddy pass. JA 566,
715.
Ultimately, on April 11, 2015, Mr. Smith broke off all communication
with “Khalid.” The final text explained, “I can’t have anything to do with
this. All I wanted was to go visit my friends to make sure he and his family
was okay. You then started asking me to do things I had no intention of
doing. I can’t have anything to do with this period.” JA 717.
2.
The FBI knows Mr. Smith took no steps to travel to Syria or
join ISIS. Mr. Smith did not travel to Syria; Mr. Smith provided no
assistance for any actual persons to travel to Syria; Mr. Smith did not join
ISIS; Mr. Smith did not recruit any members to ISIS.
6
Mr. Smith’s passport expired in April of 2015, the same month he
told-off “Khalid.” JA 492, 548. He made no attempt to renew it. JA 492,
548.
3.
FBI agents question Mr. Smith about the agency-created
fictional scheme. After a year passed without contact or activity by Mr.
Smith, the U.S. Attorney’s Office issued a subpoena to his girlfriend to
testify on February 16, 2016, before the grand jury about the buddy pass. JA
536. Mr. Smith immediately contacted the FBI and offered to come to its
office that afternoon and explain the circumstances surrounding the buddy
pass. JA 537.
In a formal recorded interview, Agent Godfrey—armed with
knowledge of Smith’s communications with “Abu Khalid”—interrogated
Smith. Many of these questions involved whether or not Mr. Smith had
expressed any plans to go to Syria. JA 799. As described by Agent Godfrey
in his trial testimony, Mr. Smith “said that he, you know, had maybe talked
about Syria and wanted to help the folks there and that kind of thing, but that
he had never discussed going there and doing anything or helping any one
particular group.” JA 803.
4.
Mr. Smith’s trial. On June 21, 2017, Mr. Smith was charged
with two counts of making a materially false statement to a federal agent in
7
violation of 18 U.S.C. § 1001(a)(2).2 Count One charged Mr. Smith with
“falsely stating to FBI Special Agents then investigating a matter involving
international terrorism that he had never discussed his desire or plans to
travel to Syria.” J.A. 20. The indictment alleged “this statement was false,
because as Smith knew there and then, he had discussed his desire and plans
to travel to Syria” with “Abu Khalid”
A trial was held on March 19-21, 2019. “Abu Khalid” testified at trial
without revealing his actual name. The jury returned a guilty verdict on both
counts. JA 1016-1017. The court imposed a sentence of two concurrent 60
months terms of imprisonment with three years supervised release. JA 12281234. Mr. Smith filed a timely Notice of Appeal on August 12, 2020. JA
1235.
5.
The Court of Appeals Decision. On Appeal Mr. Smith argued
that (1) the two counts of the indictment were multiplicitous, (2) Mr. Smith’s
statements to the FBI were not Material, False, or Knowingly Made, (3) the
trail court should have given an entrapment instruction, and (4) the terrorism
enhancement should not have been applied because there was no proof Mr.
Smith ‘intended to promote’ a federal crime of terrorism.
2
Count Two involved the “buddy pass.” Smith moved to dismiss Count
Two as multiplicitous, but the district court denied his motion. That
Count was ultimately dismissed by the Fourth Circuit.
8
A divided Fourth Circuit panel agreed that the two counts of the
indictment were multiplicitous, vacated the judgment, and ordered the case
remanded for resentencing. App. 2a to 41a
In their opinion, the Court examined both counts for sufficiency of the
evidence.3 The panel was united in deciding that Mr. Smith’s statements to
the FBI were material, false, and knowingly made, noting that “Godfrey
explained that he asked the Hilal-related questions because the FBI needed
to establish ‘a baseline of truth’ with Smith for additional questioning on the
buddy pass.” App. 24a. The Court concluded “that Smith’s answers—
though revealing only his untruthfulness—could alter the FBI’s decisionmaking.” App. 27a. This was true, the Court opined, even though “the
agency fabricated the facts underlying his false statements” App. 27a, n.6.
The panel rejected Mr. Smith’s argument that he was entitled to an
entrapment instruction4 and declined to address the terrorism enhancement,
holding “On remand, the district court can address the merits of Smith’s
claim regarding the terrorism enhancement.” App. 41a
The Court “reverse[d] the district court’s denial of Smith’s motion to
dismiss Count Two,” App. 14a, but then examined Mr. Smith’s challenge
to the sufficiency of the evidence on both counts. App. 15a. Only Count
One remains for consideration before this Court.
4
Judge Heytens wrote a separate concurrence suggesting that future cases
could lead to a valid entrapment defense under a different theory. App.
34a to 37a, quoting Brogan v. United States, 522 U.S. 398, 409-416
(1998) (Ginsburg, J., concurring in the judgment).
9
3
REASONS FOR GRANTING THE PETITION
Congress initially created 18 U.S.C. §1001 to ferret out and deter
individuals from making false statements on regulatory reports. Although
courts have generally permitted a broad application of the statute to a variety
of false statements, in recent years federal law enforcement has increasingly
misused §1001 to create crimes after an investigation uncovers no criminal
conduct. Whether §1001 applies to statements made to FBI agents in the
course of the agents' own fictional criminal enterprise is an important federal
question. This Court should grant certiorari because the Fourth Circuit
decided that important question in a way that conflicts with decisions of this
Court and with the decision of the Third Circuit on the same matter. Sup. Ct.
Rule 10(a) and (c).
In Brogan v. United States, Justice Ginsburg described the dangers of
18 U.S.C. §1001: “an overzealous prosecutor or investigator -- aware that a
person has committed some suspicious acts, but unable to make a criminal
case -- will create a crime by surprising the suspect, asking about those acts,
and receiving a false denial.” 522 U.S. at 416 (Ginsburg, J., concurring in
the judgment). At oral argument in Brogan, the Solicitor General had
forthrightly admitted to this Court that §1001 could even be used to
“escalate completely innocent conduct into a felony.” Id., at 411. The case at
10
bar demonstrates the danger of this power in a government “sting” where
investigators create the entire fictional universe in which the defendant’s
statements are made.
Over the last 25 years, government investigative techniques have
become more aggressive. Ginsburg’s overzealous investigator has new,
more powerful tools in his arsenal. Rather than waiting on the person to
commit criminal acts, today’s investigator can enlist contractors as actors to
play the role of the bad guys and encourage the subject of the “investigation”
to commit criminal acts. If the person still declines to join the criminal
enterprise, the investigator can resort to creating a crime by simply asking
the person about the operation. And because the investigator made up all the
facts and characters involved, the government is ready to pounce and
prosecute as soon as the person makes one misstatement. This is what
happened to Mr. Smith.
Where the agencies were once concerned with investigating and
apprehending individuals who had already committed or were actually
planning to commit crimes, these same agencies now concentrate resources
on locating and investigating those who they believe are inclined to commit
offenses, especially terrorism-related offenses, even if there is no probable
cause to believe they have violated the law. These investigations involve
11
government contractors posing as terrorism recruiters and contacting a
citizen offering to facilitate the commission of criminal offenses. The
Federal Bureau of Investigation becomes the Bureau of Precognition.
Even if the citizen declines to engage in criminal behavior, the Fourth
Circuit has held that he can still be convicted under 18 U.S.C. §1001 for
lying to federal law enforcement about the fictional operation wholly created
by the investigators and their contractors. In this case, the government
create the entire criminal operation out of whole cloth. Government agents
wrote the role of an ISIS recruiter and hired a long-term undercover source
to play the part of “Abu Khalid.” The agents needed a way for Mr. Smith,
who did not have financial means, to raise money to travel to Syria, so they
wrote the part of “Bilal” for another contractor to play. Mr. Smith was the
only person involved in this matter who was not a character created by the
FBI.
The government accused Mr. Smith of violating the statute for making
a false statement, specifically, “falsely stating to FBI Special Agents then
investigating a matter involving international terrorism that he had never
discussed his desire or plans to travel to Syria.”5 See Bill of Indictment at ¶
5
The “matter involving international terrorism” identified in Count One
was an FBI investigation and sting operation, which failed to yield
charges under any terrorism statute.
12
22 (JA at 20). The government alleged that Mr. Smith discussed plans to
travel to Syria to support terrorism with the FBI’s confidential human
source. Id. In reality, the FBI contractor “Abu Khalid” was playing the role
of a recruiter for ISIS and it was “Abu Khalid” who unilaterally voiced the
support of ISIS.
There are several questions from the FBI interview that the
government alleges implicate the allegations of Count One.6 Agent Godfrey,
during his two-hour interview of Mr. Smith, asked, “Did you ever talk to
‘Abu Khalid’ about possibly going over to Syria?” S.J.A. 81 at 1:56. This
statement was actually true because Mr. Smith never spoke to “Abu Khalid,”
but, instead, spoke to a contractor playing the role of a fictional character
named “Abu Khalid.” When Mr. Smith answered “No” to this imprecise
question, he may have actually been saying that he had not talked to “Abu
Khalid” about “Abu Khalid” going to Syria or that he had not talked to “Abu
Khalid” about going to Syria with “Abu Khalid”. He could have even been
saying “I never talked to ‘Abu Khalid’ about possibly going to Syria but I
did talk to ‘Khalid’ about definitely going over to Syria.”
6
The second count involved the intention of the totally fictional character
“Mohammed Hilal” to use the buddy pass procured by Mr. Smith. Mr.
Smith truthfully denied knowing Hilal’s intentions because those
intentions never existed. Count Two was dismissed by the Court of
Appeals as multiplicitous.
13
Agent Godfrey also asked, “[H]ave you ever talked with anyone that
you expressed to someone that you wanted to go to Syria and fight?” J.A.
797. This question is phrased in such a way that it inquires whether Smith
talked with any person (“anyone”) on the subject of “express[ing] to
someone” (a third person) that he “wanted to go to Syria and fight.” Smith
answered, “No, I’ve told them that I wished there was something I could do
for people, but I never had any plans to go there and do anything.” Id.
(ellipses omitted).
Finally, Agent Godfrey asked “Okay. I mean, we talked about -- I
mean, have you ever talked with anyone that you wanted to go to Syria and
join ISIS?” J.A. 798. Smith responded, “No, we’ve talked – I talk to
numerous – you have to understand the Muslim community. There’s so
much stuff going on now in the Muslim community with everything.” J.A.
798.
Despite the fact that these questions were ambiguous, and these
answers were non-responsive, evasive and non-material, Mr. Smith was still
convicted under 18 U.S.C. §1001. The Fourth Circuit upheld the conviction,
declining to follow other courts that have developed different doctrines to
avoid the inherent unfairness of a conviction where the investigative
function of §1001 is no longer applicable.
14
It is imperative that this Supreme Court review Mr. Smith’s conviction
for a non-investigative use of 18 U.S.C. §1001 and develop a coherent
doctrine to check the currently unrestrained use of government power to
create a fictional criminal situation and convict unfortunate individuals who
do not correctly describe the plot of the play that the investigators have
written -- correctly reciting the fiction the government has created.
Ultimately the government should not be able to create a fictional
situation for their own prosecutorial benefit. Mr. Smith denied the desire to
undertake criminal behavior without actually having taken any step toward a
criminal action. None of the people in this case are actually who they claim
to be. Under this scenario, if the person does not recite the fictional situation
to the government, then they are guilty of a crime. This gives the
government an unfair second bite at the apple if the investigated individual
declines to actually commit the crime.
1. False Statements regarding a fictional world created by the
investigating agency cannot be material because they cannot
influence the investigating agency.
In Brogan, Justice Ginsburg suggested that this potential government
abuse of §1001 could be cured by relying on materiality, a safeguard that the
Fourth Circuit refused to embrace in this case.
The requirement of materiality in 18 U.S.C. § 1001 is derived from
15
the traditional elements of perjury. In the context of perjury, this Court
noted Blackstone’s concern that a false statement “also must be in some
point material to the question in dispute; for if it only be in some trifling
collateral circumstance, to which no regard is paid, it is not penal.” Kungys
v. United States, 485 U.S. 759, 769 (1988) quoting 4 WILLIAM BLACKSTONE,
Commentaries, at 137. “The most common formulation of that
understanding is that a concealment or misrepresentation is material if it has
a natural tendency to influence, or was capable of influencing, the decision
of the decisionmaking body to which it was addressed.” Id., 485 U.S. at 770
(internal quotations removed). Like the statute at issue in Kungys,
materiality is also required for conviction under § 1001. Id., 485 U.S. at 769.
However, the allegedly untruthful response regarding Mr. Smith’s
“travel plans” had no possibility of influencing the actions of the
FBI. Rather than taking place during the heart of the Bureau’s investigation,
the interview was a “Hail Mary” at the very end of their inquiry. Paid FBI
contractors “Abu Khalid” and “Bilal” had been instigating, probing, and
scrutinizing Mr. Smith for more than 18 months. “Bilal” had been working
with Mr. Smith on a near daily basis for 18 months. Agent Godfrey had
been told that Mr. Smith did not have the money to travel to Syria, that he
consistently failed to take any concrete steps to bring any aspirations of
16
travel to fruition, and that his passport had expired.
The three reported questions asked of Mr. Smith during the FBI
Interview involve whether he (1) talked to “Abu Khalid” about possibly
going over to Syria, (2) talked with anyone that you expressed to someone
that you wanted to go to Syria and fight, and (3) talked with anyone that you
wanted to go to Syria and join ISIS.
The circuits agree that a false statement’s capacity to influence the
listener and its materiality must be established at the point in time that the
statement was uttered. United States v. Stone, 429 F.2d 138 (2nd Cir. 1970);
United States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998); United States
v. Holley, 942 F.2d 916, 923 (5th Cir. 1991); United States v Black, 742 F.2d
1457 (6th Cir. 1984).
At the time they interviewed Mr. Smith, the investigators already had
recordings of Mr. Smith’s discussions and extensive reports from their
contractors. Additionally, Mr. Smith’s passport had expired, and he had
disavowed “Abu Khalid’s” recruitment attempts. Even if the statement he
made in the interview was factually incorrect, the Bureau already knew. In
fact, Agent Godfrey could only come up with one reason why the questions
were needed: to “establish a baseline of truth.” JA 801, 802, 808, 811, 814.
But the fact that the defendant was untruthful does not, by itself, meet the
17
materiality standard. Kungys, 485 U.S. at 776. As this Court explained
“what is relevant [for materiality] is what would have ensued from official
knowledge of the misrepresented fact . . . not what would have ensued from
official knowledge of inconsistency between a posited assertion of truth and
an earlier assertion of falsehood.” Id.
While this Court has confirmed that the test for materiality does not
turn on whether the false statements were believed by the party to whom
they were made, Brogan, 522 U.S. at 402, there was no testimony
whatsoever in this case that Mr. Smith’s statement influenced or could have
influenced the actions of the federal government in any way. After
fruitlessly spending significant costs and resources, the Bureau had already
completely shifted its exploration from Mr. Smith’s travel plans to the
potential use of “buddy passes.” Because there was no evidence that the
statements by Mr. Smith impacted or could have impacted the federal
response, no reasonable fact finder could consider any false statement
regarding Mr. Smith’s discussion of his travel plans to be material.
The key to the statements’ immateriality is the complete knowledge
and control held by the government over the subject of the statements. All
of the conversations with “Abu Khalid” were recorded and the agent had
listened to those conversations. The materiality of a false statement must
18
turn on the potential results derived from official knowledge of the
misrepresented fact. Because the government had actually created all of the
allegedly misrepresented facts, they could not be influenced by these
statements and no possible result could have been derived from official
knowledge of the misrepresented fact. The best potential bright-line rule
would be to hold that a statement about an agent’s own fictional world is not
material.
2. The Fourth Circuit ignored this Court and the Third Circuit’s
holdings that non-responsive or literally true statements about a
fictional world cannot support a conviction under §1001.
This Court recognized a “literal truth defense” in Bronston v. United
States, 409 U.S. 352 (1973), holding “that an individual isn’t guilty of
perjury when his allegedly false answer was “literally true but not responsive
to the question asked and arguably misleading by negative implication.” Id.,
409 U.S. at 353.
Ambiguity must be construed against the government investigators.
“The burden is on the questioner to pin the witness down to the specific
object of the questioner’s inquiry.” Id. at 360. This Court recognized that the
law “does not make it a criminal act for a witness to willfully state any
material matter that implies any material matter that he does not believe to
be true.” Id. at 357-58. Where the witness is unresponsive, “the examiner's
19
awareness of unresponsiveness should lead him to press another question or
reframe his initial question with greater precision.” Id. at 362. It is an axiom
that “[p]recise questioning is imperative as a predicate for the offense of
perjury.” Id. The Fourth Circuit admits that “There’s no doubt Godfrey
could have chosen his words more carefully,” App. 17a, yet it refused to
apply Bronston.
The Supreme Court held that conviction cannot be upheld where a
statement is literally true but not responsive to the question asked and
arguably misleading by negative implication,” Id., 409 U.S. at 353. This
Court places the burden on the questioner to ensure a responsive answer to a
question framed with greater precision.
Relying upon United States v. Sarwari, 669 F.3d 401, 406 (4th Cir.
2012), the Fourth Circuit has created an exception to Bronston. It held that
that the “literal truth” defense does not “apply to an answer that would be
true on one construction of an arguably ambiguous question but false on
another.” App. 17a, quoting Sarwari, 669 F.3d at 406. The Fourth Circuits
exception to Bronston reverses the burden, requiring the individual to
resolve the responsiveness of his answer and the meaning of an ambiguous
question.
Using this formulated exception, the Fourth Circuit panel determined
20
the questions (“[H]ave you ever talked with anyone that you expressed to
someone that you wanted to go to Syria and fight?” and “I mean, we talked
about -- I mean, have you ever talked with anyone that you wanted to go to
Syria and join ISIS?”) were sufficiently precise to support a conviction
under 18 U.S.C. §1001. Yet these questions have numerous potential
meanings, missing or assumed words and phrases, and could lead to various
interpretations. See supra 13-14. Potential interpretations of these questions
would render the answers non-responsive or literally true.
And Mr. Smith’s answers to these questions are likewise problematic,
because of an initial negative response followed by a non-responsive
statement—the exact circumstances that this Court found fell within the
“literal truth defense” in Bronston.
The Fourth Circuit split from Third Circuit precedent, which applies a
literal truth defense to a fictional situation created by investigators. United
States v. Castro, 704 F.3d 125, 139 (3d Cir. 2013). Courts have recognized
that “when a statement is literally true, it is, by definition, not false and
cannot be treated as such under a perjury-type statute, no matter what the
defendant’s subjective state of mind might have been.” Castro, 704 F.3d at
139. In fact, “the government must be able to show that [the Defendant]
made a statement to government agents that was untrue, and the government
21
cannot satisfy that burden by showing that the defendant intended to
deceive, if in fact he told the literal truth.” Id. (emphasis added).
In the Third Circuit case, Daniel Castro, a high-ranking official in the
Philadelphia Police Department, invested his life savings in residential real
estate development project organized by an acquaintance named Wilson
Encarnacion. Id., at 125. Castro arranged for Rony Moshe, who was an FBI
informant to engage a tough “debt collector” to pressure Encarnacion to
repay Castro’s losses in the project. An undercover FBI agent posing as the
collector told Castro that he had extorted money from Encarnacion to give to
Castro. The money came from the FBI and there was no evidence that
Encarnacion was aware of the FBI’s payments to Castro or that the FBI’s
payments somehow reflected a debt actually owed by Encarnacion.
At an interview by FBI agents, “Castro claimed that he had not
discussed with anyone the collection of a debt from Encarnacion, that he did
not hire anyone to extort money from Encarnacion, and that he had not
received any money from Encarnacion.” Id., at 130-32.
Castro was convicted of making a false statement to federal law
enforcement officers in connection with his efforts to collect money from
Encarnacion in violation of 18 U.S.C. §1001. On appeal, Castro argued that,
in fact, he “had not received any such repayments” from Encarnacion but
22
had instead received money from the FBI in a sting operation. Thus, he
claimed that his denial “was not ‘false,’ much less ‘knowingly’ so.” He
reasoned that since his denial was literally true, even if he did not appreciate
it as such, “the evidence was insufficient to convict…” Id. at 134 (citations
omitted).
The Court agreed. As it explained,
There is, quite literally, no evidence whatsoever that even a
penny of the money that Moshe handed over to Castro came
from Encarnacion. To say, as the government does, that “[t]he
FBI actually gave Castro $21,000 on Encarnacion’s behalf,” is
an invention, since nothing shows that Encarnacion owed
Castro anything, much less that he authorized the government
to pay Castro on his behalf. Castro is therefore not guilty….
because the statement set forth in that count simply was not
false.
Id., at 140-41.
The Fourth Circuit declined to apply Castro because “the falsity of
Smith’s statements turns on his state of mind.” App. 24a. However, this is
the exact opposite of the holding of Castro: “[W]hen a statement is literally
true, it is, by definition, not false and cannot be treated as such under a
perjury-type statute, no matter what the defendant’s subjective state of mind
might have been.” Castro, 704 F.3d at 139 (emphasis added).
Where a statement is literally true because the person and the situation
doesn't not actually exist (e.g., a government-created lie in a sting
23
operation), all circuit courts should apply the rule adopted in Bronston and
applied in Castro. The Fourth Circuit ignored that bright-line rule and has
provided precedent to foster further government abuse.
3. The history of §1001 does not support its application to a
government-created scheme.
A version of this false statement statute was first enacted during the
Civil War as part of the prohibition against filing fraudulent claims with the
government and, at that time, its application was limited to such filings. See
Act of Mar. 2, 1863, Ch. 67, 12 Stat. 696-697. At the end of World War
One, the prohibition was expanded to cover other false statements made “for
the purpose and with the intent of cheating and swindling or defrauding the
Government of the United States.” Act of Oct. 23, 1918, Ch. 194, § 35, 40
Stat. 1015-1016. The false claims statute, however, applied only to false
statements “relating to the fraudulent causing of pecuniary or property loss.”
United States v Gilliland, 312 U.S. 86, 92 (1941) (quoting United States v
Cohn, 270 US 339, 346-47 (1926)).
During the expansion of the New Deal in 1934, the Secretary of the
Interior requested that Congress amend the false claims statute to deter false
statements on regulatory reports. See Gilliland, 312 U.S. at 94. In response,
Congress enacted the statute now codified as §1001, which greatly expanded
the scope of the criminal prohibition on false statements. Id. at 94-95.
24
Although the statute was designed to solve the problem of false
statements by people required to report to a federal agency, §1001’s
language makes no distinction between required and voluntary responses.
Accordingly, this Court has read §1001 expansively, holding that the statute
applies to verbal as well as written reports, United States v Beacon Brass
Co., Inc., 344 US 43, 46 (1952), to non-regulatory action, United States v
Bramblett, 348 US 503, 509 (1955), to investigative agencies, United States
v Rodgers, 466 US 475, 477 (1984),7 and to situations where there is no
legal obligation to speak, Bryson v United States, 396 US 64, 71 (1969).
In the 1950s, prosecutors began to exercise the extraordinary breadth
of §1001 against suspects who lied to investigators. This new application
gives an enormous and unprecedented power to the federal police, leading to
serious problems and potential abuses. Punishing people for lying in
response to incriminating questions gives powerful impetus to “inquisition
as a method of criminal investigation.” United States v Bush, 503 F2d 813,
815 (5th Cir 1974). Although lying to the police is obviously objectionable,
police authority does not traditionally include the power to punish suspects
who lie, unlike the power to prosecute perjury for false statements made
7
“The statutory language clearly encompasses criminal investigations
conducted by the FBI and the Secret Service, and nothing in the
legislative history indicates that Congress intended a more restricted reach
for the statute.”
25
under oath.
This Court has held that the false statement must be material, (see,
e.g., Kungys, 485 U.S. 759), and that materiality must be determined by the
jury. United States v. Gaudin, 515 U.S. 506 (1995). This Court further
determined that the plain language of the statute admitted of no exception
for an “exculpatory no,” that is that the witness could remain silent to avoid
an admission to a crime but could not respond falsely. Brogan, 522 U.S.
398.
The legitimacy of §1001 is centered on its investigative purpose. The
statute exists to help government agencies truthfully investigate and
truthfully obtain information. If the false statement is volunteered to an FBI
agent, the Supreme Court has held that §1001 applies. United States v.
Rodgers, 466 U.S. 475 (1984). In this context, the purpose of the statute is
to aid the government in making investigative decisions based on this
truthful information. It makes it a crime when a person knows and
reasonably believes that the agency will rely on their assertations.
Traditionally, the use of §1001 is confined to this investigative purpose.
Recently, the use of §1001 is particularly common in the investigation
of terrorism suspects. According to the “trial and terror” database published
26
by The Intercept,8 18 USC §1001 is the fourth most common charge
prosecuted by the Justice Department against terrorism defendants, with 157
cases9 nationally since 2001. Twenty-eight (about 17%) of those cases,
including the case at bar, involved sting operations.
However, the use of §1001 is extremely problematic in situations
where the investigators have invented the entire criminal operation. In these
“sting” cases, the investigators have lied to create the “facts” of the
undercover sting. The law does not hold agents or their operatives liable for
the lies they tell to suspects or defendants. Lies told while undercover have
been almost uniformly found to be constitutional under the Fourth
Amendment under the “third-party doctrine.” See, e.g., Lewis v. United
States, 385 U.S. 206, 206–07 (1966). In fact, the limits on the use of lies by
investigators while undercover prior to indictment are only constrained by
the entrapment defense and the Due Process Clause of the Fifth Amendment.
When these investigator-created false realities are the subject of questions
8
See Trial and Terror, THE INTERCEPT, (https://trial-andterror.theintercept.com) (last updated Nov. 14, 2022). Of the 982
terrorism defendants prosecuted by the U.S. Department of Justice since
2001, 643 defendants have pleaded guilty to charges, while the courts
found 206 guilty at trial. Just 3 have been acquitted and 4 have seen their
charges dropped or dismissed.
9
Of those charged with making false statements, 99 pled guilty, 41 were
found guilty, 13 remain fugitives, 2 are awaiting trial, and 2 had their
charges dropped.
27
and allegedly false responses made to those very investigators, the statute
fails to meet any investigative purpose and its application as a criminal
sanction loses legitimacy.
4. Although entrapment has not historically applied to §1001, the
FBI’s use of sting operations requires a reevaluation.
The entrapment defense requires that the government induce the
crime, and a lack of predisposition on the part of the defendant to engage in
the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988).
Because the actual criminal conduct in the case at bar and other §1001 cases
is lying to the FBI, “Abu Khalid’s” role in encouraging him to join ISIS or
travel to Syria and Mr. Smith negative predisposition would usually be
considered irrelevant.
However, in his concurrence to the Fourth Circuit opinion, Judge
Heytens suggested that government overreach may not be countenanced in
future cases because of a potential entrapment defense. App. 34a. Judge
Heytens relied upon Justice Ginsburg’s concurrence in Brogan, where she
noted §1001 “arms Government agents with authority not simply to
apprehend lawbreakers, but to generate felonies, crimes of a kind that only a
Government officer could prompt.” Brogan, 522 U.S. at 409 (Ginsburg, J.,
concurring in the judgment). As discussed supra, Justice Ginsburg
described a likely situation where “an investigator finds it difficult to prove
28
some elements of a crime, she can ask questions about other elements to
which she already knows the answers.” Id., 522 U.S. at 411 (Ginsburg, J.
concurring in the judgment). Then, Justice Ginsburg continues, “If the
suspect lies, she can then use the crime she has prompted as leverage or can
seek prosecution for the lie as a substitute for the crime she cannot prove.”
Id.
In using undercover agents, this Court has suggested that the
government “may not originate a criminal design, implant in an innocent
person’s mind the disposition to commit a criminal act, and then induce
commission of the crime so that the Government may prosecute.” Jacobson
v. United States, 503 U.S. 540, 548 (1992). Judge Heytens was concerned
that because
one government agent (an undisclosed confidential informant)
raise[s] the topic of ISIS and urge[s] Smith not to disclose those
conversations to anyone, and then having another set of
government agents (the FBI) ask Smith about those very same
conversations, the government originated a criminal design and
implanted in an innocent person’s mind the disposition to
commit a criminal act.
App. 36a, citing Jacobson, 503 U.S. at 548 (internal quotations omitted)
(emphasis added).
5. A similar bright-line rule prevents a defendant from conspiring or
aiding or abetting a government agent.
Convicting a person of making a false statement to FBI agents where
29
the agents invented the facts on which the statement was based is akin to
convicting a person of conspiracy where the alleged co-conspirator is a
government agent. Of course, it is well settled that government agents
participating in ‘sting’ operations are not part of the conspiracy. Rogers v.
United States, 340 U.S. 367, 375 (1951); Morrison v. California, 291 U.S.
82, 92 (1934); United States v. Giry, 818 F.2d 120, 125 (1st Cir. 1987);
United States v. Barnes, 604 F.2d 121, 161 (2d Cir. 1979); United States v.
Chase, 372 F.2d 453, 459 (4th Cir. 1967) cert. denied 387 U.S. 907, (1967);
United States v. Strickland, 245 F.3d 368, 386 (4th Cir. 2001); Sears v.
United States, 343 F.2d 139 (5th Cir. 1965); United States v. Manotas-Mejia,
824 F.2d 360, 364-65 (5th Cir. 1987); United States v. Pennell, 737 F.2d 521,
536 (6th Cir. 1984); United States v. Barger, 931 F.2d 359, 369 (6th Cir.
1991); O'Brien v. United States, 51 F.2d 674 (7th Cir. 1931); United States v.
Escobar de Bright, 742 F.2d 1196, 1199-1200 (9th Cir. 1984); United States
v. Dimeck, 24 F.3d 1239, 1242 n.6 (10th Cir. 1994); United States v. Vasquez,
874 F.2d 1515, 1516-17 (11th Cir. 1989). Therefore, even if a defendant
knowingly and willfully agreed to engage in an illegal act, he cannot be
convicted of conspiracy without the agreement of a non-agent.
Similarly, a person cannot be convicted of aiding and abetting a
fictitious crime created by government agents. See United States v.
30
Hornaday, 392 F.3d 1306, 1314 (11th Cir. 2004); Haynes v. United States,
319 F.2d 620 (5th Cir. 1963); United States v. Meinster, 619 F.2d 1041 (4th
Cir. 1980); United States v. Gould, 419 F.2d 825 (9th Cir. 1969). Some laws
require more than mens rea to complete the crime. Just as it would be a
legal impossibility for Mr. Smith to conspire with “Abu Khalid” or to aid
and abet “Abu Khalid” or “Mohammed Hillel,” so too is it impossible for a
false statement about facts invented by FBI agents to have a natural
tendency to influence those agents.
__________________________
CONCLUSION
The petition for a writ of certiorari should be granted.
31
RESPECTFULLY SUBMITTED THIS the 1st day of March, 2023.
/s/ James W. Kilbourne, Jr.
JAMES W. KILBOURNE, JR.
Counsel of Record
ALLEN STAHL & KILBOURNE, PLLC
Twenty Town Mountain Road
Asheville, North Carolina 28801
(828) 254-4778
jamesk@asklawnc.com
Appointed under the Criminal Justice Act
CHARLES D. SWIFT
CONSTITUTIONAL LAW CENTER
FOR MUSLIMS IN AMERICA
833 E. Arapaho Rd, Suite 102
Richardson, Texas, 75081
Counsel for Petitioner
32
APPENDIX
i
TABLE OF CONTENTS
Page
OPINION OF THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT, FILED DECEMBER 1,
2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
EXCERPT OF TRANSCRIPT IN THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF
NORTH CAROLINA, CHARLOTTE DIVISION, FILED
OCTOBER 7, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43a
APPENDIX A
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4414
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
ALEXANDER SAMUEL SMITH, a/k/a Amir Alexander,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:17−cr−00182−MOC−DSC−1)
Argued: March 11, 2022
Decided: December 1, 2022
Before GREGORY, Chief Judge, and DIAZ and HEYTENS, Circuit Judges.
Affirmed in part, reversed in part, judgment vacated, and case remanded for resentencing
by published per curiam opinion, in which Chief Judge Gregory and Judge Heytens joined
in full. Judge Diaz joined the per curiam opinion in part. Judge Heytens wrote a concurring
opinion. Judge Diaz wrote an opinion dissenting in part.
ARGUED: James Walter Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC,
Asheville, North Carolina; Allie Jordan Hallmark, HAMILTON WINGO LLP, Dallas,
Texas, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Charles D. Swift,
CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson,
Texas, for Appellant. William T. Stetzer, Acting United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
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PER CURIAM:
A jury convicted Alexander Samuel Smith on two counts of lying to the FBI,
violating 18 U.S.C. § 1001(a)(2). The district court sentenced him to concurrent 60-month
prison terms. On appeal, Smith challenges (1) the district court’s denial of his motion to
dismiss Count Two of his indictment as multiplicitous, (2) the sufficiency of the evidence
supporting the jury’s verdict, (3) the district court’s allegedly prejudicial statements to the
jury, (4) the district court’s refusal to give an entrapment instruction, and (5) the district
court’s application of a terrorism enhancement at sentencing.
As explained below, we reverse the district court’s denial of the motion to dismiss
Count Two, vacate the judgment, and remand for resentencing. We otherwise affirm.
I.
A.
Acting on an informant’s tip, the FBI began investigating Smith in the summer of
2014. Smith had asked the informant for help in traveling to Syria to participate in its civil
war. As far as the investigating agents knew, Smith wanted to join the armed conflict
between Syria’s government and various factional forces, including the Islamic State of
Iraq and Syria (“ISIS”). 1 ISIS had recently solicited Westerners to join its fight.
Agents soon learned of a connection between Smith and the Kodaimatis—a father
and son who were already under federal investigation for supporting ISIS. Smith once
1
The United States had long designated ISIS a terrorist organization.
2
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worked for the Kodaimatis and traveled to Syria with them in 2006. Based on that
connection and the informant’s tip, agents became concerned that Smith was considering
joining ISIS in Syria. So agents had the informant refer Smith to a second informant, Abu
Khalid. Khalid would act as an ISIS recruiter who could facilitate Smith’s travel plans.
Smith contacted Khalid and scheduled an in-person meeting for August 2014. At
the meeting, Smith told Khalid that he wanted to return to Syria to help defend a family
whom he had once visited. Smith explained that the family lived near a city divided
between three warring groups, including ISIS.
Khalid responded that he was helping “brothers” go to Syria to join ISIS. S.J.A. 2. 2
He asked Smith whether he “wanted to be with” the “leader of ISIS.” J.A. 665. Smith
answered, in Arabic, “inshallah.” J.A. 665. But if Smith wanted to join ISIS, Khalid said,
he would have to pledge allegiance to the group’s leader. Khalid explained that Smith
would be “going to fight . . . under command of” ISIS, asking whether Smith would accept
that. S.J.A. 8. Smith again responded in Arabic: “[n]a’am.” S.J.A. 8. Khalid later testified
that “inshallah” and “na’am” were affirmations.
For his part, Smith discussed his ability to fight, telling Khalid that he knew about
hand-to-hand combat and weapons but lacked formal training. Before leaving, Smith
mentioned that he had a passport and would be ready to travel in a few weeks. The pair
made plans to talk again.
2
appeal.
Citations to the “S.J.A.” refer to the Supplemental Joint Appendix filed in this
3
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Between August and November 2014, Smith and Khalid met three more times. In
their second and third meetings, Smith reaffirmed his desire to travel to Syria. Khalid told
Smith that he’d be “expected to kill for ISIS if he went to Syria,” and Smith said it would
be “no problem.” J.A. 693.
Because Smith often mentioned that he didn’t have the money to buy his airfare to
Syria, Khalid introduced Smith to Bilal, a third informant, to help him earn money for the
trip. Bilal worked with Smith on odd jobs, including construction projects and car
restorations. In the fourth meeting with Khalid, Smith offered to obtain discount airfare
(or, a “buddy pass”) for Khalid should he ever need it. Smith’s then-girlfriend worked in
customer service for an airline and could buy such passes.
Smith and Khalid didn’t meet again until March 2015. Khalid asked Smith if he’d
be able to get a buddy pass for Mohamed Hilal, a fictitious person the FBI had invented.
Khalid told Smith that Hilal was important to ISIS and planning to travel to Syria.
Using another person’s credit card, Smith and his girlfriend bought Hilal the pass.
But when the pass went unused, Smith emailed Khalid to ask what happened. Khalid
responded that Hilal got confused and didn’t use the pass. Smith then cut off all contact
with Khalid, saying he couldn’t “have anything to do with this.” S.J.A. 80.
B.
In February 2016, the FBI coordinated with the U.S. Attorney’s Office in the
Western District of North Carolina to issue a grand jury subpoena for Smith’s now-wife.
After his wife received the subpoena, Smith called the FBI and spoke with Agent Ronald
4
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Godfrey—one of the agents investigating him. Smith agreed to visit the FBI’s office and
“explain the circumstances about [the] buddy pass.” J.A. 537.
Godfrey, armed with knowledge of Smith’s communications with Khalid,
interrogated Smith. Godfrey asked Smith whether he spoke with Khalid about “possibly
going to Syria,” and Smith replied, “no.” S.J.A. 81 at 1:55:55–1:56:00. 3 Godfrey also
asked, “[H]ave you ever talked with anyone that you expressed to someone that you wanted
to go to Syria and fight?” J.A. 797. Smith answered, “No, I’ve told them that I wished
there was something I could do for people, but I never had any plans to go there and do
anything.” J.A. 797. And Godfrey asked if Smith had ever “talked with anyone that
[Smith] wanted to go to Syria and join ISIS.” J.A. 798. Smith responded, “No, we’ve
talked – I talk to numerous – you have to understand the Muslim community. There’s so
much stuff going on now in the Muslim community with everything.” J.A. 798. Though
Godfrey warned Smith that he could get in trouble for lying to the FBI, providing a copy
of § 1001, Smith stood firm that he never had any plan or intent to go to Syria.
Godfrey’s questioning then turned to Hilal. Godfrey asked Smith if he knew that
Hilal “was planning to use the buddy pass” to travel to Syria and join ISIS. S.J.A. 81 at
2:04:55–2:05:20. Smith said that he didn’t know “anything [Hilal] was planning to do”
and that he “didn’t know what [Hilal] had in his mind [or] what his plans were.” S.J.A. 81
at 2:05:20–2:05:30.
S.J.A. 81 refers to a series of sequentially timestamped video exhibits on file with
the Clerk of Court.
3
5
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C.
A grand jury indicted Smith on two counts of making a materially false statement
to a federal agent in violation of 18 U.S.C. § 1001(a)(2). Count One charged Smith with
“falsely stating to FBI Special Agents then investigating a matter involving international
terrorism that he had never discussed his desire or plans to travel to Syria.” J.A. 20. Count
Two charged him with telling the FBI “he did not know that [Hilal] intended to use the
buddy pass procured by [Smith] to travel and support ISIS.” J.A. 21. Smith moved to
dismiss Count Two as multiplicitous, but the district court denied his motion.
The case proceeded to a jury trial. The government called four witnesses: Godfrey,
Khalid, an expert on ISIS and other terrorist organizations, and an airline employee. The
jury also heard recordings of Smith’s conversations with Godfrey and Khalid. 4
At the close of the government’s case, Smith moved for a judgment of acquittal
under Federal Rule of Criminal Procedure 29. Smith argued that the government hadn’t
shown that he knowingly and willfully made a false statement or that his statements were
material to the FBI’s investigation. The district court denied Smith’s motion. Smith then
recalled Godfrey before unsuccessfully renewing his Rule 29 motion at the close of all
evidence.
Smith asked the district court to instruct the jury on an entrapment defense. He
claimed the FBI had instigated him to commit his alleged crimes through the subpoena and
Relevant on appeal, the court said in overruling a government objection during
Godfrey’s cross-examination, “we have two counts of a violation of 1001, which indicate
that there were . . . two falsehoods here.” J.A. 835.
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other pressure tactics the agency employed on his wife. The court declined, reasoning that
Smith hadn’t shown that the FBI induced him to lie. The court did, however, instruct the
jury on informants, explaining that “the government is lawfully permitted to use decoys
and deception to conceal the identity of its informants.” J.A. 982.
The jury returned a guilty verdict on both counts and found that each offense
involved international terrorism.
D.
Smith’s presentence investigation report first recommended a 63- to 78-month
prison term, based on a total offense level of 26 and a criminal history category of I. But
the government objected, arguing that U.S.S.G. § 3A1.4’s terrorism enhancement should
apply. The probation office agreed with the government, increasing Smith’s total offense
level to 32 and his criminal history category to VI. Smith’s Guidelines sentence became
192 months’ imprisonment—the statutory maximum.
The district court later overruled Smith’s objection to the terrorism enhancement
but varied downward, imposing two concurrent 60-month terms of imprisonment and three
years’ supervised release. The court certified that its sentence would be appropriate
regardless of the terrorism enhancement.
This appeal followed.
II.
We begin with Smith’s claim that the district court erred by declining to dismiss
Count Two as multiplicitous. “The rule against multiplicity is rooted in the Double
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Jeopardy Clause of the Fifth Amendment” and protects against “the imposition of
cumulative punishments for the same offense in a single criminal trial.” United States v.
Shrader, 675 F.3d 300, 313 (4th Cir. 2012).
To determine whether convictions are multiplicitous, courts must first identify
“[w]hat Congress has made the allowable unit of prosecution.” Id. The controlling
question is, thus, whether Congress intended the unit of prosecution under § 1001 to be a
single statement. Such an interpretation would allow a defendant to be charged separately
for each false statement made during a single interview. But, if “Congress fails to define
the criminal unit or the legislative intent in this regard is ambiguous, any ambiguity should
be resolved in favor of lenity.” United States v. Mason, 611 F.2d 49, 51 (4th Cir. 1979)
(citations omitted); see also United States v. Davis, 139 S. Ct. 2319, 2333 (2019)
(“Employing the canon as the government wishes would also sit uneasily with the rule of
lenity’s teaching that ambiguities about the breadth of a criminal statute should be resolved
in the defendant’s favor.”).
Smith maintains that “both of the alleged false statements were made . . . in the same
interview and comprise only one violation of 18 U.S.C. § 1001.” Appellant’s Br. at 38.
The thrust of this argument is that § 1001(a)(2) criminalizes a course of conduct rather than
an individual false statement.
Because we find that Congress’s intent concerning
§ 1001(a)(2)’s unit of prosecution is ambiguous, we must apply the rule of lenity and find
Count Two multiplicitous.
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A.
Section 1001(a)(2) prohibits “any materially false, fictitious, or fraudulent statement
or representation.” When previously confronted with similar statutory language, we have
found Congress’s intent ambiguous.
In Mason, we held that the language of 18 U.S.C. § 922(a)(6) punishing “any false
or fictitious oral or written statement” was “ambiguous with respect to the unit of
prosecution.” United States v. Mason, 611 F.2d 49, 52 (4th Cir. 1979). Our decision in
Mason involved the Gun Control Act and the defendants’ charges included “knowingly
making a false statement in connection with the acquisition of a firearm in violation of 18
U.S.C. § 922(a)(6).”
Id. at 50–51.
Both defendants submitted written forms when
purchasing firearms and falsely denied having been previously convicted of a felony on
each form. Because the defendants purchased multiple firearms, and submitted one form
per firearm, they were charged with multiple counts under § 922(a)(6) based on each form.
To determine whether these counts were multiplicitous, we looked to the Supreme Court’s
analysis in United States v. Bell. Id. at 51 (citing United States v. Bell, 349 U.S. 81 (1955)).
In Bell, the Supreme Court held that the language employed in the Mann Act—
prohibiting the knowing transportation in “interstate or foreign commerce” of “any woman
or girl for the purpose of prostitution or debauchery, or for any other immoral purpose[,]”—
was ambiguous.
349 U.S. at 82.
The defendant in Bell transported two women
simultaneously and in the same vehicle.
Because the statutory language could be
interpreted to support finding both that Congress intended the defendant to be charged once
for each woman, or cumulatively charged once for both women, the Supreme Court found
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the statutory language ambiguous and applied the rule of lenity. Relying on Bell, we found
that the statutory language in Mason, prohibiting “any false or fictitious oral or written
statement” was also ambiguous as to the unit of prosecution. Mason, 611 F.2d at 52.
Despite the similar language at issue here, our dissenting colleague distinguishes
Mason by arguing that the Mason Court also relied on the way in which the Gun Control
Act was administered. See Dissenting Op. at 40. But Mason’s discussion of the Gun
Control Act’s administration merely provided additional support to its primary holding that
the statutory language was ambiguous under Bell. Indeed, this Court introduced that
discussion in Mason by stating, “[o]ur conclusion on this point is buttressed by the manner
in which the Gun Control Act has been administered by the Bureau of Alcohol, Tobacco
and Firearms.” Mason, 611 F.2d at 52 (emphases added). Given its prior discussion of
Bell, and the application of the rule of lenity to resolve doubt “against turning a single
transaction into multiple offenses[,]” as well as its conclusion that the statutory language
was ambiguous, the following discussion of the Act’s administration only bolstered the
Court’s holding that it had already made clear. Id. at 51.
B.
Neither the legislative history, nor our case law following Mason, serve to clarify
§ 1001(a)(2)’s ambiguity. In 1996, Congress amended the statute to cover “any . . .
statement or representation,” 18 U.S.C. § 1001(a)(2) (1996)—in the singular—as opposed
to its former version covering “any . . . statements or representations,” 18 U.S.C. § 1001
(1948). This revision fails to explain Congress’s intent regarding the unit of prosecution,
because the terms “statement” and “representation” do not carry the same definition. See
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Statement, Oxford English Dictionary (3d ed. 2012), https://www.oed.com/view/Entry/189259
(last visited November 28, 2022) (defining “statement” as “[a] formal written or oral account
of facts, theories, opinions, events . . . as requested by authority”); Representation, Oxford
English Dictionary (3d ed. 2009), https://www.oed.com/view/Entry/162997 (last visited
November 28, 2022) (defining “representation” as “[t]he action of standing for, or in the
place of, a person, group, or thing, and related senses” or “[a] depiction or portrayal of a
person or thing”).
Although a statement may be a representation, a representation is not necessarily a
statement. Thus, there is no need to interpret the statute’s terms as one referring to a single
assertion, and the other to a series of assertions, in order to avoid rendering the statute’s
language superfluous. And while Congress’s revision, amending § 1001(a)(2) to cover
“any . . . statement or representation” in the singular, supports a finding that the statute is
broad enough to encompass a single interview that only included one false statement, it
does little to show that Congress unambiguously intended the unit of prosecution to be each
individual statement made during one interview. Instead, the statute remains ambiguous
because one could easily interpret § 1001(a)(2)’s unit of prosecution as one single
interview or form. Under this view, the statute could be interpreted as characterizing
Smith’s entire interview as a “statement or representation,” sufficient to support one count
of making a false statement in violation of § 1001(a)(2).
In its attempt to declare § 1001(a)(2) unambiguous, the dissent relies upon an
unpublished case decided after Mason. See Dissenting Op. at 38–39. In Jameson, we
upheld the defendant’s four convictions under § 1001(a)(2) and determined that “each
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nonidentical false statement made may be charged as a separate violation of section 1001.”
See United States v. Jameson, Nos. 91-5848, 91-5849, 91-5876, 1992 WL 180146, at *9
(4th Cir. July 29, 1992) (per curiam). The defendant’s false statements there stemmed from
two separate forms, one form submitted on September 15, 1987, and the second form
submitted on September 7, 1988. On both forms, the defendant falsely denied (1) having
any additional “creditors other than those providing conventional loans,” and (2)
possessing “interests in real property other than his personal residence.” Id.
Declining to find his charges as multiplicitous, we reasoned that the questions on
the two forms were not identical because they concerned the defendant’s debt and property
as of two different dates. We also found that the defendant could be charged with two
counts per form because the government had to prove different facts for each count. 5 While
Smith’s challenge is more difficult to square with our unpublished decision in Jameson,
the differing facts that the government had to prove to sustain each charge there render
Jameson distinguishable from this case.
Unlike the differing types of documents that would be required to prove an
individual’s debt and specific property interests, the government proved Counts One and
For support, we discussed the Supreme Court’s decision in United States v.
Blockburger, holding that “the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other
does not.” 284 U.S. 299, 304 (1932). The defendant in Blockburger, however, was charged
under two “distinct statutory provisions” and “[e]ach of the offenses created requires proof
of a different element.” Id. at 304. Because the defendant’s one sale violated two sections
of the same act, the Court upheld the defendant’s judgment. Id. at 304. See United States
v. Mier-Garces, 976 F.3d 1003, 1012–13 (10th Cir. 2020) (explaining that the Blockburger
test applies “[w]hen the government charges a defendant under separate statutes for the
same conduct”).
5
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Two by solely relying on the communications between its informants and Smith. The
government had to prove that Smith “discussed his desire and plans to travel to Syria in
support of ISIS with The Source[,]” J.A. 20, under Count One, and that Smith “had
discussed with The Source the travel plans of a person that he [SMITH] believed to be a
person who wanted to travel and assist ISIS[,]” J.A. 21, under Count Two. Thus, the FBI’s
evidence for both counts depended on its informants’ conversations with Smith. It is also
worth noting that while some of our sister circuits have defined § 1001(a)(2)’s unit of
prosecution as a single statement, none of them have done so in a case where the
government’s evidence was so similar in substance. See United States v. Meuli, 8 F.3d
1481, 1485–86 (10th Cir. 1993) (involving a defendant who made false statements on
multiple forms); United States v. Segall, 833 F.2d 144, 146–48 (9th Cir. 1987) (affirming
the defendant’s conviction on three counts of making a false statements on two separate
dates); United States v. Guzman, 781 F.2d 428, 432–33 (5th Cir. 1986) (affirming the
defendant’s conviction on two counts under § 1001 for falsely representing her name on
two separate documents).
In sum, we find ambiguity in Congress’s intended unit of prosecution in
§ 1001(a)(2) following Mason. Because nothing in our case law nor the relevant legislative
history serves to clarify this ambiguity, we apply the rule of lenity and reverse the district
court’s denial of Smith’s motion to dismiss Count Two. See Santos, 553 U.S. at 519 (“We
interpret ambiguous criminal statutes in favor of defendants, not prosecutors.”); see also
Bell, 349 U.S. at 81 (“When Congress leaves to the Judiciary the task of imputing to
Congress an undeclared will, the ambiguity should be resolved in favor of lenity.”).
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III.
We turn next to Smith’s challenge to the sufficiency of the evidence. Smith claims
that the district court erred in denying his motion for a judgment of acquittal on both falsestatement counts. We disagree.
Rule 29 requires a trial court, on the 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). We review the district court’s denial of a Rule 29 motion de novo.
United States v. Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). In doing so, “we view the
evidence in the light most favorable to the prosecution and decide whether substantial
evidence . . . supports the verdict.” United States v. Walker, 32 F.4th 377, 397 (4th Cir.
2022) (cleaned up). “Substantial evidence” is evidence that a reasonable fact-finder could
accept as adequate and sufficient to support a defendant’s guilt beyond a reasonable doubt.
See id. Defendants bear a “heavy burden” under this standard. Id. (cleaned up).
“A § 1001 false-statement conviction requires (1) a false statement in a matter
involving a government agency, (2) made knowingly [and] willfully, that is (3) material to
the matter within the agency’s jurisdiction.” United States v. Legins, 34 F.4th 304, 313
(4th Cir. 2022). Smith’s challenge to his Count One conviction spans each element. On
Count Two, he contests only falsity and materiality. We address each count in turn.
A.
On Count One, Smith contends that the government failed to prove he knowingly
made a materially false statement. Count One charged him with “falsely stating to FBI
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Special Agents . . . that he had never discussed his desire or plans to travel to Syria.” J.A.
20.
Smith first claims we must vacate this conviction because his responses to the FBI’s
imprecise questions were truthful. He next argues that the government failed to prove that
he acted with the requisite intent because no expert testified to the meaning of Smith’s
Arabic statements. And last, Smith contends that, even if he knowingly and willfully made
false statements, those statements were immaterial to the FBI’s near-completed
investigation. We disagree, finding sufficient evidence supports the jury’s verdict on
Count One.
1.
Smith’s challenge to falsity revolves around Godfrey’s questions, which are
reproduced in the indictment:
1. “[H]ave you ever talked with anyone about . . . that you expressed to
someone that you want to go to Syria and fight?”
2. “[H]ave you ever . . . talked with anyone that you wanted to go to Syria
and join ISIS?”
J.A. 18. According to the indictment, Smith’s responses to these questions were false given
his discussions with Khalid about traveling to Syria.
Smith insists he truthfully answered both questions in the negative. The first
question, Smith says, is phrased so ambiguously that he interpreted it to ask whether he
had talked with anyone about having expressed to anyone else that he wanted to go to Syria.
And the second question is “similarly imprecise,” Smith claims, because it asks “whether
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[he had] engaged in a conversation with a person, [whom he] thought should go to Syria
and join ISIS.” Appellant’s Br. at 47.
Smith’s contentions turn on the literal-truth defense set forth in Bronston v. United
States, 409 U.S. 352 (1973). In Bronston, the Supreme Court held that an individual isn’t
guilty of perjury when his allegedly false answer was “literally true but not responsive to
the question asked and arguably misleading by negative implication.” 409 U.S. at 353.
Underlying this doctrine is the notion that “[t]he burden is on the questioner to pin
the witness down to the specific object of the questioner’s inquiry.” Id. at 360. And if a
response is evasive, it’s the questioner’s duty “to spot that evasion and to flush out the
whole truth.” United States v. Earp, 812 F.2d 917, 919 (4th Cir. 1987) (cleaned up).
Though Bronston dealt with a perjury charge, we’ve since applied its holding to § 1001
offenses. See United States v. Good, 326 F.3d 589, 592 (4th Cir. 2003).
But as we’ve explained, the literal-truth defense is “a narrow one.” United States v.
Sarwari, 669 F.3d 401, 406 (4th Cir. 2012). “It applies only where a defendant’s allegedly
false statements were undisputedly literally true.” Id. (cleaned up). And fatally for Smith,
it doesn’t “apply in cases in which the focus is on the ambiguity of the question asked. Nor
does it apply to an answer that would be true on one construction of an arguably ambiguous
question but false on another.” Id. (cleaned up).
That Smith can construe either question as ambiguous therefore doesn’t help him.
There’s no doubt Godfrey could have chosen his words more carefully. Still, Godfrey
testified that he asked Smith “about whether or not [Smith] had expressed any plans or
desire, intentions[,] or aspirations to go to Syria,” which Smith denied. J.A. 799. A
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reasonable jury could conclude that (1) Godfrey intended to ask Smith about his discussion
of his personal desire to travel to Syria, and (2) Smith understood as much. See United
States v. Purpera, 844 F. App’x 614, 632 (4th Cir. 2021) (finding an investigator’s
testimony sufficient for a reasonable jury to resolve against the defendant an “ambiguity
surrounding the precise nature of [the investigator’s] question”).
Thus, Smith’s response to the second question is enough to support falsity. When
Godfrey asked whether Smith had ever “talked with anyone that [he] wanted to go to Syria
and join ISIS,” Smith replied, “No, we’ve talked – I talk to numerous – you have to
understand the Muslim community. There’s so much stuff going on now in the Muslim
community with everything.” J.A. 798.
Smith answered Godfrey’s second question with “[n]o.” The rest of his response,
even if true, doesn’t retract his initial denial. A rational jury could thus find Smith falsely
denied discussing his desire to travel to Syria.
Even so, Smith suggests that his answer to Godfrey’s first question, under any
construction, was either nonresponsive or true. While we need not reach this contention,
we reject it all the same.
Smith says his response to the first question was literally true because he told
Godfrey he “never had any plans to go [to Syria] and do anything.” Appellant’s Br. at 46
(cleaned up) (emphasis added). Smith contends that, when he said he had no “plans” to go
to Syria, he meant he had no “detailed proposal” to go, rather than no “intention or
decision” to do so. Appellant’s Br. at 46 (quoting Oxford Dictionary of English (3d ed.
2010)). He argues that his intended definition of “plans” makes his response literally true.
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Smith relies on our precedent in United States v. Hairston, 46 F.3d 361 (4th Cir.
1995). There, we reversed a perjury conviction where the context made it “obvious” that
a defendant used a different definition of “prepare” and “preparation” than that employed
by the prosecutor, rendering her statements literally true. Id. at 375–76. We face no such
quandary here.
First, Godfrey didn’t use the word “plans,” so there was no disconnect between the
question and answer as in Hairston. Second, it’s not obvious which definition Smith
intended. And third, even accepting Smith’s premise, the jury had substantial evidence to
reasonably conclude that Smith’s “plans” to go to Syria constituted a “detailed proposal.”
After all, Smith discussed with Khalid his desire to go to Syria and his idea to finance that
trip by working with Bilal. So a reasonable jury could find Smith lied when answering
Godfrey’s first question.
2.
Smith next argues that the government failed to prove he knowingly and willfully
made false statements. In conversations with Khalid discussing travel to Syria and joining
ISIS, Smith often responded in Arabic, saying “inshallah” or “na’am.” Khalid, fluent in
Arabic, told the jury that he understood those words as affirmations to his questions.
Smith now contends that because the government didn’t present expert testimony
on Arabic, the jury didn’t have “sufficient evidence to interpret” his responses. Appellant’s
Br. at 50. So, says Smith, the jury couldn’t conclude what he “actually meant when he said
[those] words.” Id.
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The problem for Smith is that the jury heard sufficient evidence of his conversations
with Khalid in English to conclude that Smith knowingly and willfully lied to the FBI. For
example, when they first met, Smith told Khalid, “There is a particular family in Syria . . .
that I went there one time before to visit. . . . I want to go back to them.” S.J.A. 1–2. And
in their third meeting, Khalid asked Smith, “[W]hat’s your plans [sic] for Syria,” to which
Smith responded, “I need to get the money to get there . . . and that’s what we’re working
on so I can have the money to get there.” S.J.A. 37. To that end, the jury heard that Smith
worked with Bilal to earn money for his trip.
We thus find that the government presented enough direct and circumstantial
evidence for a reasonable jury to conclude that Smith acted with the requisite intent when
he denied ever discussing his desire or plans to travel to Syria. See United States v. Dennis,
19 F.4th 656, 665 (4th Cir. 2021) (In reviewing the denial of a Rule 29 motion, “[w]e must
consider both circumstantial as well as direct evidence.”).
3.
Smith also challenges the materiality of his untruthful responses. According to
Smith, denying his travel plans couldn’t have affected the FBI’s actions. Smith says his
interview was a “Hail Mary” at the end of the investigation and that the FBI already knew
the answers to its questions. Appellant’s Br. at 42. We reject this contention.
“A statement is material if it has a natural tendency to influence, or is capable of
influencing, the decision-making body to which it was addressed.” United States v.
Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998) (cleaned up). The government “must prove
materiality by reference to the particular government agency or public officials that were
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targeted”—here, the FBI. United States v. Raza, 876 F.3d 604, 617 (4th Cir. 2017). This
inquiry is ultimately “an objective test.” United States v. Hamilton, 699 F.3d 356, 362 (4th
Cir. 2012). It’s irrelevant “whether the false statement actually influenced the [FBI’s]
decision-making process.” Id. (emphasis added).
Smith’s denials of his travel plans to Syria were material to the FBI’s investigation.
As Godfrey told the jury, the FBI began investigating Smith because the agency was “very
concerned that he may be going [to Syria] to join ISIS.” J.A. 495. Smith’s denials that he
discussed the very plans which prompted the FBI’s inquiry, if believed, “were capable of
influencing the direction of the investigation.” United States v. Barringer, 25 F.4th 239,
251 (4th Cir. 2022) (cleaned up). These “misrepresentations, under normal circumstances,
could cause FBI agents to re-direct their investigation to another suspect, question their
informant differently or more fully, or perhaps close the investigation altogether.” United
States v. McBane, 433 F.3d 344, 352 (3d Cir. 2005). That’s enough to satisfy our review.
Smith’s claims to the contrary miss the mark. Even if the FBI’s interview was (as
Smith puts it) a “Hail Mary,” a reasonable jury could find that Smith’s false statements
were capable of influencing the FBI’s still-active investigation. See United States v.
Fondren, 417 F. App’x 327, 336 (4th Cir. 2011) (rejecting that “statements could not be
material given that the [FBI’s] investigation was essentially complete”). And that “the FBI
investigators already knew the answers to the questions they asked him” makes no
difference to our inquiry. Id. (collecting cases).
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B.
In challenging his Count Two conviction, Smith narrows his focus to the falsity and
materiality of his relevant statements. Count Two charged Smith with “falsely stating to
FBI Special Agents . . . that he did not know that [Hilal] intended to use the buddy pass
procured by [Smith] to travel and support ISIS.” J.A. 21.
Smith’s contentions here turn on one underlying fact—Hilal was a fictitious person
invented by the FBI. Smith says he truthfully denied knowing Hilal’s intentions because
those intentions never existed. And denying knowledge about Hilal’s intentions couldn’t
have influenced the FBI’s decision-making, Smith claims, because his untruthfulness alone
can’t establish materiality. We reject these arguments.
1.
As before, we begin with Smith’s falsity challenge. Smith reasserts a literal-truth
defense. This time, he argues that denying knowledge of Hilal’s intentions was truthful
because he “could have no knowledge of a person who does not exist, nor could he know
the intentions of a non-existent person.” Appellant’s Br. at 34. Smith’s contention thus
rises and falls with the meaning of “knowledge.”
We recently explored this terrain, finding the term “knowledge” “broad and
somewhat ambiguous.” Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 266 (4th Cir. 2021).
Though “knowledge” can mean “‘[a]n awareness . . . of a fact or circumstance’ or the
‘condition of having information’ about something,” it can also signify “‘a state of mind in
which a person has no substantial doubt about the existence of a fact.’” Id. (quoting
Knowledge, Black’s Law Dictionary (11th ed. 2019); Knowledge, Merriam-Webster
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Dictionary, https://www.merriam-webster.com/dictionary/knowledge). The result is that
“knowledge” can mean either an awareness of an objective truth or a person’s subjective
understanding of a thing. See id.
Smith urges us to adopt the former meaning and ignore the latter. But the literaltruth defense doesn’t permit us to disregard one construction of an ambiguous question in
favor of another. See Sarwari, 669 F.3d at 407. Godfrey asked Smith whether he “knew”
that Hilal was planning to use the buddy pass to travel to Syria and join ISIS. S.J.A. 81 at
2:04:40–2:05:20. A reasonable jury could decide, upon hearing the full interview, that
Godfrey’s question went to Smith’s subjective understanding of Hilal’s intentions, rather
than an awareness of the objective truth of those plans. So Smith’s defense fails here, too.
Smith disputes this conclusion, pointing us to the Third Circuit’s decision in United
States v. Castro, 704 F.3d 125 (3d Cir. 2013). In Castro, our sister court vacated a
defendant’s § 1001 conviction for lying to FBI agents about receiving extorted funds. See
id. at 139–41. The defendant had unwittingly hired FBI agents posing as “debt collectors”
to coerce a former business partner into repaying an investment in a failed venture. Id. at
130. Though the defendant accepted purportedly extorted money from the collectors, he
later denied ever receiving any payment from his old partner. Id. at 132.
The court found this denial was “completely, if unintentionally, accurate.” Id. at
139. It was undisputedly true that the defendant never received any money from his
partner—it came from the FBI. See id. at 140. Whether he “subjectively believed he was
lying” made no difference, the court said, because “our legal system does not convict
people of being bad.” Id.
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We find Castro inapt to Smith’s case. The issue of falsity in Castro turned on the
source of a payment. Here, the falsity of Smith’s statements turns on his state of mind—
more specifically, his understanding of Hilal’s travel plans. On that point, the government
offered ample evidence.
Khalid asked Smith to buy the buddy pass for Hilal because Hilal intended to fly
from Florida to New York and eventually make his way to “you know where,” meaning
Syria. J.A. 708. Khalid also described how he told Smith that Hilal was “very important
for us,” meaning ISIS. J.A. 708. The jury was free to disbelieve Khalid’s account having
heard all the recorded exchanges, but its determination is not for us to question. See United
States v. Wilson, 484 F.3d 267, 283 (4th Cir. 2007) (“If the evidence supports different,
reasonable interpretations, the jury decides which interpretation to believe.” (cleaned up)).
In short, substantial evidence supports the jury’s finding of falsity on Count Two.
2.
Smith next contends that the government failed to prove the materiality of his false
statements denying knowledge of Hilal’s travel plans.
The government again relied on Godfrey’s testimony to establish this element.
Godfrey explained that he asked the Hilal-related questions because the FBI needed to
establish “a baseline of truth” with Smith for additional questioning on the buddy pass.
J.A. 801. The FBI wanted to learn more about the involvement of Smith’s wife and the
person who had lent his credit card to buy Hilal’s plane ticket. The FBI didn’t know
whether that other person was someone “whose ideology was aligned with ISIS” or just an
“unwitting accomplice.” J.A. 802.
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But each question Godfrey asked risked revealing more of the FBI’s working
knowledge gained in the investigation. In turn, sharing that knowledge with Smith could
have compromised its investigation because Smith might have disclosed it to persons of
interest. Once Smith lied about knowing Hilal’s travel plans, Godfrey didn’t think it
worthwhile to compromise the FBI’s investigation in return for more untruthful answers.
Smith dismisses this theory and its supporting evidence, arguing that his credibility
alone could never be material to the FBI’s investigation, particularly where his untruthful
statements were based on the agency’s own made-up narrative. To permit a finding of
materiality on these facts, Smith says, “is to eliminate [that] requirement altogether and
transform nearly any false statement into a material one.” Appellant’s Br. at 24.
But it bears emphasizing that a false statement is material under § 1001 when it has
“a natural tendency to influence, or is capable of influencing, the decision-making body to
which it was addressed.” Hamilton, 699 F.3d at 362 (cleaned up). The Supreme Court has
explained that a jury, before applying this legal standard, must first make two factual
findings: the defendant’s relevant statement and the decision the government agency was
trying to make. See United States v. Gaudin, 515 U.S. 506, 512 (1995). Considering this
framework, we’re satisfied that a rational jury could find Smith’s false statements about
Hilal material to the FBI’s investigation.
Here, the FBI wasn’t only trying to discern whether Smith intended to provide
material support to a terrorist organization. The agency was also trying to understand what
role Smith’s wife and the credit-card owner had in the apparent scheme. So the FBI’s
decision-making at this stage encompassed its investigation into the conduct of Smith, his
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wife, and the other person participating in Smith’s activities. See Fondren, 417 F. App’x
at 335.
From there, we think it plain that Godfrey’s testimony adequately supports the jury’s
materiality finding. The FBI had to make a cost-benefit assessment during Smith’s
interview—how much of its investigation was it willing to compromise and what
information would it receive in return. Smith’s false statements on the buddy pass
influenced that assessment by informing the FBI what lines of questioning might be
fruitful. For instance, the FBI decided that Smith wasn’t a viable source to investigate the
person who purchased the buddy pass. But had the FBI believed Smith truthfully answered
its Hilal-related questions, a reasonable jury could accept Godfrey’s testimony as proof
that the FBI might well have questioned Smith differently, potentially changing the course
of the investigation.
Taking the evidence in the light most favorable to the government, as we must,
Smith’s false answers “were capable of influencing the direction of the investigation.”
Barringer, 25 F.4th at 251 (cleaned up); cf. Sarihifard, 155 F.3d at 307 (“[E]ven if a grand
jury disregards a witness’s false testimony, the false testimony may impede the grand jury’s
capacity to attain an accurate and prompt resolution of the matter under consideration.”).
In concluding as much, we reject Smith’s contention that his credibility alone could
never be material to the FBI’s investigation. The Supreme Court, in assessing § 1001, has
held that “the investigation of wrongdoing is a proper governmental function; and since it
is the very purpose of an investigation to uncover the truth, any falsehood relating to the
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subject of the investigation perverts that function.” Brogan v. United States, 522 U.S. 398,
402 (1998) (emphasis omitted).
So too here. At its core, the FBI’s purpose was to discover the truth underlying
Smith’s potentially criminal enterprise. Smith’s false statements thus weren’t harmless lies
told in a vacuum; they related to other subjects of the FBI’s investigation. Under such
circumstances, we conclude that Smith’s answers—though revealing only his
untruthfulness—could alter the FBI’s decision-making. 6 See United States v. Lupton, 620
F.3d 790, 806–07 (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.”).
The Supreme Court’s decision in Kungys v. United States, 485 U.S. 759 (1988),
doesn’t change our conclusion. There, the Court addressed materiality under 8 U.S.C.
§ 1451(a), which provides for the denaturalization of citizens whose citizenship was
“illegally procured or [was] procured by concealment of a material fact or by willful
misrepresentation.” Id. at 764 n.1 (cleaned up). The government had argued that the
defendant’s false statements in his visa and naturalization applications disqualified him
from citizenship. See id. at 764–65. It said that § 1451(a)’s misrepresentation clause and
“illegally procured” clause both applied—the latter because the defendant’s false
statements rendered him ineligible for a good-moral-character finding (a requirement for
For these reasons, we likewise reject Smith’s assertion that his lies couldn’t
influence the FBI’s investigation because the agency fabricated the facts underlying his
false statements.
6
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naturalization) under 8 U.S.C. § 1101(f)(6). See id. The Third Circuit agreed only on the
former point, finding the defendant made material misrepresentations. Id. at 766.
In reversing and remanding for reconsideration, the Supreme Court clarified that
courts should apply § 1001’s materiality standard—and no other formulation—to
§ 1451(a)’s misrepresentation clause. See id. at 769–72. The Court then declined to reach
the government’s alternate basis for affirming under § 1451(a)’s “illegally procured”
clause for violation of § 1101(f)(6), which bars a finding of good moral character if a
person gives “false testimony” to obtain immigration benefits. Id. at 779. It addressed
only the Third Circuit’s conclusion that false testimony under § 1101(f)(6) had to be
material. See id. Unlike § 1451(a)’s misrepresentation clause, the Court said, § 1101(f)(6)
has no such materiality requirement. Id. The Court explained the divergence between the
statutes not just by their plain language but also by their purposes: § 1451(a)’s to prevent
“false pertinent data from being introduced into the naturalization process,” and
§ 1101(f)(6)’s to “identify a lack of good moral character.” Id. at 780.
Smith suggests that the Kungys court’s disparate treatment of false statements under
those statutes highlights the insufficiency of untruthfulness alone as proof of materiality.
He argues that our interpretation of materiality reduces § 1001(a)(2) to a
good-moral-character provision like § 1101(f)(6).
Smith is wrong.
For one, the Kungys majority didn’t answer whether the
defendant’s untruthfulness was material to his procurement of citizenship, as § 1451(a)
requires. See id. at 767–72. But even if a defendant’s untruthfulness alone couldn’t
possibly influence the government’s naturalization decision, an ongoing criminal
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investigation presents a far different inquiry. As we’ve outlined, our focus is on the
particular agency to which a defendant lied—see Raza, 876 F.3d at 617—and any
falsehood going to the heart of an FBI investigation can influence it. See Brogan, 522 U.S.
at 402.
A final point. Smith complains that the FBI’s pertinent decision must be more than
just “the decision to ask more questions.” Appellant’s Br. at 25–26. He warns that, if we
sanction this theory, FBI agents will always be able to advance after-the-fact justifications
in service of materiality. Not so. Our precedent has long held that the government must
offer sufficient evidence to prove materiality (as it did here). See United States v. Ismail,
97 F.3d 50, 61 (4th Cir. 1996). That’s an adequate safeguard against theories premised on
an agency’s afterthoughts. 7
In sum, we conclude that Smith’s false statements denying his knowledge of Hilal’s
travel plans could have influenced the FBI’s investigation. So they were material.
IV.
Smith also contends that one of the district court’s instructions and an unrelated
comment during trial allowed the jury to convict him without determining whether his
Because a defendant may invoke his right to remain silent in an FBI interview,
Smith also argues it is “entirely speculative” for a jury to conclude how the investigation
would have proceeded had he been truthful. Appellant’s Br. at 25. Of course, if Smith had
remained silent or told the truth, there would be no materiality inquiry as there would be
no crime. In any event, Smith ignores that our focus is on his false statements’ potential
to alter the FBI’s investigation. See Barringer, 25 F.4th at 251 (“Whether the false
statement actually influenced an agency’s action is irrelevant.”).
7
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statements were false. Because Smith didn’t object to the instruction or the comment, we
review for plain error. See United States v. Hope, 28 F.4th 487, 493 (4th Cir. 2022). These
claims, however, are meritless.
Smith first challenges the court’s jury instruction that “the government is lawfully
permitted to use decoys and deception to conceal the identity of its informants.” J.A. 982.
While Smith characterizes this instruction as misleading, he doesn’t dispute that it’s a
correct statement of the law. So the court appropriately instructed the jury as much. See
United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006) (“We review a jury instruction
to determine whether, taken as a whole, the instruction fairly states the controlling law.”
(cleaned up)).
Second, the court stated in response to an objection, that “we have two counts of a
violation of 1001, which indicate that there were . . . two falsehoods here.” J.A. 835. Smith
argues this statement misled the jury to believe the government had established those two
falsehoods. But context proves otherwise. Shortly after, the court said, “The question is,
were these two lies told or not?” J.A 835. And the court fully instructed the jury on the
elements of a § 1001(a)(2) offense, including falsity. We find no error here, much less a
plain one.
V.
We now address the district court’s refusal to give the jury an entrapment
instruction. We review a district court’s decision to give (or not give) a jury instruction for
abuse of discretion. See United States v. Hassler, 992 F.3d 243, 246 (4th Cir. 2021).
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“[A] valid entrapment defense has two related elements: government inducement of
the crime, and a lack of predisposition on the part of the defendant to engage in the criminal
conduct.” Mathews v. United States, 485 U.S. 58, 63 (1988). To establish inducement, “a
defendant must show that the government acted in an excessive manner that would prompt
a reasonably firm person to commit a crime.” Sarihifard, 155 F.3d at 308. Only when a
defendant makes this prima facie showing does the burden shift to the government to prove
the defendant’s predisposition to the criminal conduct. United States v. Young, 916 F.3d
368, 375–76 (4th Cir. 2019).
But “[t]he district court is the gatekeeper.” United States v. Hackley, 662 F.3d 671,
681 (4th Cir. 2011). If a defendant can’t produce “more than a mere scintilla of evidence
of entrapment, the court need not give the instruction.” Id. (cleaned up).
In requesting an entrapment instruction, Smith argued that the government had
induced him to lie to FBI agents by serving his wife with a subpoena. At trial, Godfrey
testified about these pressure tactics on Smith’s wife. Godfrey had called her “the weakest
link,” and he told the jury about the FBI’s plan to use her to get to Smith. J.A. 590. To
execute this plan, Godfrey approached Smith’s wife for an interview at her job, and he had
the grand jury subpoena delivered to her mother’s house.
The district court declined Smith’s request for an instruction, concluding he hadn’t
shown “an inducement to commit perjury.” J.A. 923. The court explained that there was
no evidence that the FBI subpoenaed Smith’s wife to “get him to come down” and lie to
agents. J.A. 923. That decision, the court reasoned, was Smith’s alone.
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We see no abuse of discretion. Smith offered no evidence to suggest the FBI
induced him into lying, even if the agency aimed to get him in the hot seat. See United
States v. Russell, 411 U.S. 423, 436 (1973) (“It is only when the Government’s deception
actually implants the criminal design in the mind of the defendant that the defense of
entrapment comes into play.”).
Godfrey warned Smith at the outset of the interview that the only way he could
“create any possible problems” was by “being deceptive or untruthful.” S.J.A. 81 at
1:24:00–1:24:15. Godfrey even gave Smith a copy of § 1001’s text during the interview—
before the Hilal questions—informing him that lying to the FBI was a criminal offense.
The FBI’s repeated efforts to ensure Smith told the truth belie any claim that agents
coaxed him into lying. See United States v. Kennedy, 372 F.3d 686, 698 (4th Cir. 2004).
And the mere fact that agents knew Smith might lie about Hilal’s travel plans after falsely
denying his own doesn’t amount to inducement. See Sarihifard, 155 F.3d at 308–09.
VI.
Finally, Smith maintains that his sentence is procedurally unreasonable because the
district court erroneously imposed the terrorism enhancement under U.S.S.G. § 3A1.4.
“Application of the terrorism enhancement provides a twelve level enhancement—and an
automatic criminal history category of VI—when ‘the offense is a felony that involved, or
was intended to promote, a federal crime of terrorism.’” United States v. Chandia, 514
F.3d 365, 375 (4th Cir. 2008) (quoting U.S.S.G. § 3A1.4). In turn, a “federal crime of
terrorism” has two elements: (1) “the commission of one of a list of specified felonies”;
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and (2) “a specific intent requirement, namely, that the underlying felony was calculated
to influence or affect the conduct of government by intimidation or coercion, or to retaliate
against government conduct.” Id. (cleaned up).
Smith claims the district court erred in applying the terrorism enhancement because
it failed to expressly find specific intent. Indeed, our precedent compels a district court to
identify the evidence underpinning its specific-intent finding when “the basic facts
supporting the conviction do not give rise to an automatic inference of the required intent.”
Id. at 376.
But we need not delve into this question given that we’re remanding for
resentencing because of the district court’s error on multiplicity. On remand, the district
court can address the merits of Smith’s claim regarding the terrorism enhancement.
VII.
In sum, we reverse the district’s denial of Smith’s motion to dismiss Count Two of
the indictment as multiplicitous, vacate the judgment, and remand for resentencing. We
otherwise affirm.
AFFIRMED IN PART, REVERSED IN PART,
VACATED AND REMANDED FOR RESENTENCING
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TOBY HEYTENS, Circuit Judge, concurring:
As the Court explains, the theory of entrapment Smith presented here is insufficient
to state a prima facie case of inducement and thus provides no basis for overturning Smith’s
convictions. I write separately to note that Smith may have been able to establish a valid
entrapment defense under a different theory—and to caution that similar government
conduct may not be countenanced in future cases.
I.
It is well established that the government may “use undercover agents to enforce the
law” and “afford opportunities or facilities for the commission of [an] offense.” Jacobson
v. United States, 503 U.S. 540, 548 (1992). In doing so, however, the government “may
not originate a criminal design, implant in an innocent person’s mind the disposition to
commit a criminal act, and then induce commission of the crime so that the Government
may prosecute.” Id.
These principles apply equally to prosecutions under 18 U.S.C. § 1001. In Brogan
v. United States, 522 U.S. 398 (1998), the Supreme Court rejected the “exculpatory no”
defense, under which some courts had carved out an exception to criminal liability under
Section 1001 “for a false statement that consists of the mere denial of wrongdoing.” Id. at
399. “Whether or not the predicament of the wrongdoer run to ground tugs at the
heartstrings,” the Court explained, “neither the text nor the spirit of the Fifth Amendment
confers a privilege to lie.” Id. at 404. At the same time, however, the Court emphasized
that “background interpretive principle[s] of general application”—including that criminal
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statutes do not “cover violations produced by entrapment”—remain applicable in Section
1001 prosecutions. Id. at 406.
In a separate opinion, Justice Ginsburg underscored the importance of these
principles. As she noted, Section 1001 “arms Government agents with authority not simply
to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government
officer could prompt.” Brogan, 522 U.S. at 409 (Ginsburg, J., concurring in the judgment).
In particular, “the sweeping generality of § 1001’s language” creates the risk “that an
overzealous . . . investigator—aware that a person has committed some suspicious acts, but
unable to make a criminal case—will create a crime by surprising the suspect, asking about
those acts, and receiving a false denial.” Id. at 416.
II.
The facts of this case appear to implicate Justice Ginsburg’s concerns. Smith
initially drew the FBI’s attention because he had expressed interest in traveling to Syria.
Yet simply going to Syria—even with the intent to participate in jihad against Bashar alAssad’s regime—is not a federal crime, and Smith’s early conversations with the
government’s primary informant referenced entities not designated as foreign terrorist
organizations. Cf. 18 U.S.C. § 2339B (making it a crime to “knowingly provide[ ] material
support . . . to a foreign terrorist organization, or attempt[ ] . . . to do so”). ISIS, of course,
is a designated foreign terrorist organization. See 79 Fed. Reg. 27972 (May 15, 2014);
8 U.S.C. § 1189(a)(2)(A)(ii), (B)(i). But it was a government-compensated informant, not
Smith, who first mentioned ISIS—to the point of making Smith swear allegiance to ISIS
as a condition of assisting with Smith’s otherwise lawful aim of traveling to Syria. And, in
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any event, the government never charged Smith with actually providing (or attempting to
provide) material support to ISIS.
The government, however, had another route to secure a conviction. Beyond
requiring Smith to swear allegiance to ISIS, the government’s primary informant did
something else: He told Smith not to tell anyone about their conversations about ISIS.
See, e.g., SJA 16 (“ABU KHALID: . . . keep yourself down . . . don’t talk to nobody about
this.”). And then, during a later interview, FBI agents asked Smith about the very
conversations and topics the informant had directed Smith not to disclose. Consistent with
the informant’s advice, Smith falsely denied having spoken with any of the government’s
informants about traveling to Syria to join ISIS. And, with that, the government finally had
a crime: making false statements, in violation of 18 U.S.C. § 1001.
In this case, therefore, the government was not merely “aware that [Smith] ha[d]
committed some suspicious acts.” Brogan, 522 U.S. at 416 (Ginsburg, J., concurring in the
judgment). Instead, it might have been argued that by having one government agent (an
undisclosed confidential informant) raise the topic of ISIS and urge Smith not to disclose
those conversations to anyone, and then having another set of government agents (the FBI)
ask Smith about those very same conversations, the government “originate[d] a criminal
design” and “implant[ed] in an innocent person’s mind the disposition to commit a criminal
act.” Jacobson, 503 U.S. at 548.
This combination of circumstances might have distinguished Smith’s case from
others where we have not found an entrapment instruction necessary. In United States v.
Sarihifard, 155 F.3d 301 (4th Cir. 1998), for example, this Court concluded an entrapment
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defense would have failed where “there [was] no evidence suggesting that the
government’s purpose in questioning the defendant was the solicitation of perjured
testimony.” Id. at 308 (emphasis added). Here, in contrast, a jury might have been able to
find that when FBI agents asked Smith about matters the government’s own informant had
instructed Smith not to disclose to anyone, their purpose was to get Smith to lie and then
convict him for having done so. ∗
Smith, however, has not claimed that the government’s undisclosed confidential
informant—rather than the fully disclosed FBI agents—induced him to commit the crime
of lying to the FBI. For that reason, we need not decide whether the informant’s actions
could have given rise to a valid entrapment defense, and I concur in the Court’s decision
rejecting the argument presented here.
A valid entrapment defense also requires “a lack of predisposition on the part of
the defendant to engage in the criminal conduct.” United States v. Blevins, 960 F.2d 1252,
1257 (4th Cir. 1992). Here too, the record suggests Smith might have had a colorable claim.
Consider, for example, Smith’s willingness to voluntarily talk to the FBI, truthfully offer
up names and descriptors of the informants, and describe his and his wife’s roles in buying
the airline’s discounted buddy pass.
∗
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DIAZ, Circuit Judge, dissenting in part:
I join all but Part II of the Court’s opinion. In my view, the district court correctly
denied Smith’s motion to dismiss Count Two as multiplicitous.
“When a defendant is charged with multiple violations of the same statute arising
from the same course of conduct, the court must consider ‘[w]hat Congress has made the
allowable unit of prosecution.’” United States v. Shrader, 675 F.3d 300, 313 (4th Cir.
2012) (quoting Bell v. United States, 349 U.S. 81, 81 (1955)). This inquiry asks us to “look
to the language of the statute, being mindful that any ambiguity must be resolved in favor
of the defendant under the rule of lenity.” Id. (cleaned up). Whether two counts are
multiplicitous is a question of law we review de novo. Id.
Section 1001 punishes, in part, “whoever, in any matter within the jurisdiction of
the executive, legislative, or judicial branch of the Government of the United States,
knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement
or representation.” 18 U.S.C. § 1001(a)(2). At bottom, § 1001(a)(2) defines the crime (and
so the unit of prosecution) in terms of a single statement or representation. See United
States v. Dunford, 148 F.3d 385, 389 (4th Cir. 1998) (explaining that, under a literal
construction, “any” in the context of a singular noun means a “single” item).
Section 1001’s legislative history supports this construction. Originally, § 1001
prohibited false “statements or representations.” 18 U.S.C. § 1001 (1948). But Congress
revised the statute to take on a singular form, now prohibiting any false “statement or
representation.” 18 U.S.C. § 1001(a)(2) (1996). Thus, each nonidentical statement or
representation (not each interview) is the unit of prosecution.
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True, the terms “statement” and “representation” can accommodate either a single
assertion or a series of the same. See Statement, Oxford English Dictionary (3d ed. 2012),
https://www.oed.com/view/Entry/189259 (last visited November 28, 2022) (defining
“statement” as both “[a] formal written or oral account of facts” and “[a]n expression of
something . . . a declaration, an assertion”); Representation, Oxford English Dictionary (3d
ed. 2009), https://www.oed.com/view/Entry/162997 (last visited November 28, 2022)
(defining “representation” as “a spoken or written statement”).
But “we disfavor
interpretations of statutes that render language superfluous.” Alexander v. Carrington
Mortg. Servs., LLC, 23 F.4th 370, 379 (4th Cir. 2022) (cleaned up). So these usually
synonymous terms shouldn’t carry the same meaning in § 1001—one should mean a single
assertion, and the other, a series. I’m satisfied that Congress permitted the prosecution of
either a single lie or a series of lies. 1
The Supreme Court’s test in Blockburger v. United States confirms our conclusion
that each nonidentical false statement or representation may be prosecuted, asking
“whether each [offense] requires proof of a fact which the other does not.” 284 U.S. 299,
304 (1932); see, e.g., Shrader, 675 F.3d at 314. Indeed, we have used this test once before
in the § 1001 context, though in an unpublished decision. See United States v. Jameson,
Nos. 91-5848, 91-5849, 91-5876, 1992 WL 180146, at *9 (4th Cir. July 29, 1992) (per
curiam).
Because both counts charged Smith with making a false statement and
representation, I need not assign each term its corresponding definition.
1
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In Jameson, we held that “each nonidentical false statement made may be charged
as a separate violation.” Id. (cleaned up). 2 Applying Blockburger, we reasoned that the
government had to establish the falsity of two separate responses on a single form through
different facts. See id. at *9–*10. So each nonidentical false response supported a separate
§ 1001 offense. Id. I find Jameson’s reasoning persuasive.
Here, the falsity of Smith’s statements in Counts One and Two turned on proof of
different facts. Count One required the government prove Smith lied about his own “desire
or plans to travel to Syria.” J.A. 20. For Count Two, the government had to prove that
Smith lied about his knowledge of Hilal’s travel plans. So each count required proof of
Smith’s understanding of different travel plans, confirming that his convictions aren’t
multiplicitous.
Our decision in United States v. Mason, 611 F.2d 49 (4th Cir. 1979), is not to the
contrary. There, we concluded that 18 U.S.C. § 922(a)(6)’s prohibition on making “any
false or fictitious oral or written statement” in connection with a firearm or ammunition
sale presented an ambiguous unit of prosecution. Id. at 52 (cleaned up). We thus resolved
§ 922(a)(6)’s unit of prosecution in the defendants’ case as a course of conduct rather than
each false statement, dismissing their multiplicitous convictions.
See id. at 52–53.
Each circuit to address this question has arrived at the same conclusion. See United
States v. Meuli, 8 F.3d 1481, 1485–86 (10th Cir. 1993); United States v. Segall, 833 F.2d
144, 146–48 (9th Cir. 1987); United States v. Guzman, 781 F.2d 428, 432–33 (5th Cir.
1986); United States v. Anderson-Bagshaw, 509 F. App’x 396, 411–13 (6th Cir. 2012);
United States v. Bustamante, 248 F. App’x 763, 764–65 (8th Cir. 2007) (per curiam).
2
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Acknowledging the similarity between the language in § 922(a)(6) and § 1001(a)(2), I
nonetheless reach a different result here.
Mason dealt with two defendants’ false denials of their felon status on multiple
forms they submitted to a gun dealer when making multi-firearm purchases—one form for
each gun. See id. at 50–51. Beyond § 922(a)(6)’s language, Mason relied on “the manner
in which the Gun Control Act [had] been administered by the Bureau of Alcohol, Tobacco
and Firearms.” Id. at 52.
We found that the Bureau hadn’t required multiple certification forms in a multifirearm purchase—that discretion was left to the individual gun dealer. See id. at 52–53.
Because “a particular gun dealer’s practice shouldn’t control the application of a federal
criminal statute,” we held each course of lying, not each lie, was the allowable unit of
prosecution. Id. at 53. And “nothing in [§] 922(a)(6) or its legislative history” suggested
that Congress intended otherwise. Id.
Mason’s reasoning doesn’t control this case. For starters, the Gun Control Act’s
administration has no bearing here. There’s no comparable administration of § 1001(a)(2).
But more importantly, § 1001’s legislative history does suggest that Congress intended
each individual, nonidentical false statement to be the unit of prosecution.
Accordingly, the district court correctly denied Smith’s motion to dismiss Count
Two as multiplicitous. Because my colleagues hold otherwise, I respectfully dissent.
40
41a
APPENDIX B
42a
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
UNITED STATES OF AMERICA
)
)
vs.
)
)
ALEXANDER SAMUEL SMITH,
)
)
Defendant.
)
_____________________________)
DOCKET NO. 3:17-cr-182
VOLUME III
TRANSCRIPT OF TRIAL PROCEEDINGS
BEFORE THE HONORABLE MAX O. COGBURN, JR.
UNITED STATES DISTRICT COURT JUDGE
MARCH 21, 2019
APPEARANCES:
On Behalf of the Government:
MICHAEL E. SAVAGE, ESQ.
United States Attorney's Office
227 West Trade Street, Suite 1700
Charlotte, North Carolina
On Behalf of the Defendant:
KEVIN TATE, ESQ.
MYRA CAUSE, ESQ.
Federal Public Defender's Office
129 West Trade Street, Suite 300
Charlotte, North Carolina
Cheryl A. Nuccio, RMR-CRR
Official Court Reporter
United States District Court
Charlotte, North Carolina
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544
1
(Court back in session at 9:30 a.m.)
2
(Jury not present.)
3
MR. TATE: Apologize, Your Honor. I had to get some
4
things squared away with Mr. Smith.
5
6
THE COURT: No, that's okay. I knew what you were
doing, Mr. Tate.
7
8
Are you going to be able to cue those up and get
those done fairly...
9
10
MR. TATE: Yeah, we're ready to proceed. We'd ask
to recall Agent Godfrey.
11
12
THE COURT: Absolutely. We'll call him as soon as
the jury is in here.
13
MR. TATE: Okay.
14
THE COURT: Do you want to do any Rule 29s to start
15
16
with?
MR. TATE: I think based on Rule 29(a) of the
17
Rules -- Criminal Rules of Criminal Procedure, we move for
18
judgment of acquittal on both counts because the government
19
has failed to articulate sufficient facts to allow a
20
reasonable jury to conclude beyond a reasonable doubt that Mr.
21
Smith, one, had, in fact, knowingly and willfully made a
22
false, fictitious, and fraudulent statement. Number two, that
23
the statement was material as defined by law. And fourth,
24
that the representation pertained to a matter of jurisdiction
25
of the government of the United States.
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1
The most glaring defect is that there's no evidence
2
that Mr. Smith knowingly and willfully did so. This is a case
3
involving false statements where he was not told what false
4
statements he was being questioned about. He came in under a
5
ruse of talking about a buddy pass. It then turned into
6
interactions he had with a confidential informant that he did
7
not know was an informant.
8
Specifically, the indictment alleges that he made
9
these statements to the source and he never was identified.
10
The source was never identified to him. They talked about Abu
11
Khalid, but they never specifically said, "Mr. Smith, did you
12
talk to a guy name Abu Khalid about going to Syria?" And as
13
the agent testified, they gave him broad questions that would
14
allow him to talk and he said many times, "I talked to many,
15
many Muslims about ISIS and everything else."
16
So we believe that that negates the knowingly and
17
willful element and we move for judgment of acquittal based on
18
Rule 29(a) on both counts.
19
THE COURT: Okay. Motion will be denied. I think
20
the evidence is clear that the -- as to what was -- that
21
the -- that there is evidence -- there is clear evidence.
22
Whether the jury decides they've proved beyond a reasonable
23
doubt that it was the defendant who wanted to travel to Syria
24
and that there is some dispute about what the reasons were --
25
but this was a -- there was significant discussion about ISIS
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1
under whatever its names are, Daesh, the people at that time
2
who were fighting in Syria.
3
The Kodaimatis, there's some question as to whose
4
side they were on. It seems from the testimony the Court
5
gleaned that there was some evidence that they were not
6
fighting on the side of the Free Syrian Army or anybody --
7
they were opposed to Assad, but just about everybody except
8
the Russians and the Alawites were opposed to Assad.
9
So there is plenty of evidence concerning joining a
10
terrorist organization that was against the United States.
11
Based on that, the investigation they did, they certainly did
12
call him down. They were entitled to find out as part of this
13
investigation what he knew. Was he still radicalized? Was
14
he -- had he -- had he decided that this was something he was
15
not going to do or was he still part of the -- was he still
16
hanging in there with those folks? Those questions were
17
legitimate questions that they could ask to determine whether
18
they had a potential terrorist in their midst or someone who
19
had really seen the light and backed away from the -- from the
20
terror aspects of this. Based on that, they had every right
21
to call him down and question him.
22
And there's enough evidence to go to the jury that
23
faced with this interrogation, that he did not give truthful
24
testimony about his contacts with people that he believed at
25
the time were -- or at one time he believed, whether he still
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1
believed it or not is the question. But he was not willing to
2
give up the people he had talked to about -- Mr. Khalid, or
3
whatever, about his -- about going to Syria. He was not going
4
to give information against him and was going to lie about his
5
contacts therein. So I think there's evidence to go to the
6
jury with regard to those, so that will be denied.
7
With regard to the instructions, where the Court is
8
right now, the Court is thinking about -- and I haven't made a
9
final decision -- is thinking about giving the instruction on
10
witness use and that sort of thing with maybe a stronger -- a
11
stronger pound to the jury that the defendant has no -- does
12
not have to put on any evidence, and then -- and not giving
13
the consciousness of guilt. Because what's the consciousness
14
of guilt of? Of the lie? Well, of course he had -- if he's
15
lying, he had consciousness of guilt if he lied. That's the
16
crime. Normally what happens is you've robbed a bank and they
17
say, "Were you in that area that day?" "No, not me," and he
18
knew he was in the area. Why would he lie about it except
19
that -- so it dealt with -- the lie is separate from the
20
actual crime. And so the Court, I think, is going to not give
21
the consciousness of guilt.
22
And with regard to the entrapment one, I do not
23
believe that that applies in this case, and I'll talk more
24
about that when the time comes.
25
But I'll make a final decision on these. I've read
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1
THE COURT: Okay. Any motions at this time?
2
MR. TATE: Your Honor, pursuant to Rule 29(b), after
3
the defendant's presentation of evidence, I think many of the
4
statements contained in Defense Exhibits 7A, B, and C
5
addressed some of the Court's concerns and basis for denying
6
the Rule 29(a) motion. We renew for the same grounds under
7
Rule 29(b) for a motion of judgment of acquittal on all
8
counts.
9
THE COURT: Okay. That motion will be denied. I do
10
believe there's -- that there's a context. It doesn't come
11
down to just one simple statement as to each of these counts.
12
There is a full context of it. But a jury -- a jury hearing
13
this evidence could find from the evidence that the defendant
14
violated 1001 during the interview; and so the Court will --
15
the Court will deny the motions, although I understand what
16
the clips said there and it adds some context to everything.
17
Okay. The -- with regard to the entrapment issue,
18
Mr. Savage, what legitimate -- what legitimate matters were
19
being investigated at the time, does the government say, when
20
the interviews were conducted?
21
22
23
24
25
MR. SAVAGE: I think the record speaks for itself.
Agent Godfrey testified at length about that.
THE COURT: It does, but I want to hear what you -I want to hear any argument that you wish to make.
MR. SAVAGE: Well, the government was investigating
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48a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.