Petition — United States v. Yermian

Office -Stipromeg Court, U.S.

383-346 FILED

No. AUG 31 1983

VER L STEV

CLERK ss,

In the Supreme Court of the

OCTOBER TERM, 1983

\

UNITED STATES OF AMERICA, PETITIONER

v.

ESMAIL YERMIAN

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

PAUL M. BATOR

Deputy Solicitor General

CAROLYN F. CoRWIN

Assistant to the Solicitor General =

,

f

(202) 633-221 7

QUESTION PRESENTED

Whether, in a prosecution for the making of a false

statement in violation of 18 U.S.C. 1001, the govern-

ment must prove that the defendant knew that the

statement was made “in [a] matter within the jurisdic-

tion of [a] department or agency of the United States.”

Nip

TABLE OF CONTENTS

Page

Opinion below ........--eeeeeeereeeeeeeeees 1

ees ee ee ree rr as 1

Statute inPolvedl <..c cece ccc cc cvsectenrecse 1

Rabat. oc. Coser estuoes CeaepeeKvetee™ 2

Reasons for granting the petition ...........-- 7

GConcbation os. Soko Cacae tne we Ha stwadeawetees 14

Appendix A ...... cece eee e ener e ee eeeeenees la

Appendix B ....... cece cece cece ee eee eeeeeees 16a

TABLE OF AUTHORITIES

Cases:

Ebeling v. United States, 248 F.2d 429,

cert. denied, 355 U.S. 907 ..........- 5, 8, 10

United States v. Baker, 626 F.2d 512 . 5, 8, 9, 10

United States v. Bankston, 603 F.2d 528 .. 13

United States v. Bramblett, 348 U.S. 503 . 12

United States v. Candella, 487 F.2d 1223,

cert. denied, 415 U.S. 977 ......... 5, 8, 9-10

United States v. Cella, 568 F.2d 1266 ..... 5, 8

United States v. Feola, 420 U.S. 671 ..... 9, 12

United States v. Gilliland, 312 U.S. 86... ll

United States v. Hobson, 519 F.2d 765,

cert. denied, 423 U.S. 981 .........-55- 13

United States v. Hooper, 596 F.2d 219 .... i)

United States v. Howey, 427 F.2d 1017 ... 13

United States v. Lange, 528 F.2d 1280 .... 8

United States v. Lewis, 587 F.2d 854 ... 5, 8,9

United States v. Matanky, 482 F.2d 1319,

cert. denied, 414 U.S. 1089 ............ 10

gan)

Cases—continued: Page

United States v. Stanford, 589 F.2d 285,

_cert. denied, 440 U.S. 9838 ......... 5, 8, 9, 10

United States v. Waters, 457 F.2d 805 .... 10

¢ United States v. Wolf, 645 F.2d 23 see eees 10

Statutes and regulation:

DANE de coe con cede cess > ceheaetys 13

NEE a cu ois 80 ohm ainmahina ete 12

i Oa Aisin oc 13

RIDE iia Cie svias ns halen ccc venice passim

Cal. Penal Code § 484 (West 1970) ........ 13

SAE | cca k aOR whee vk can 13

Cal. Penal Code § 532 (West 1970) ........ 13

EAA cde UREEE cp he dnc Rh tecbe ces bes 10

z

A]

a

In the Supreme Court of the Anited States

OCTOBER TERM, 1983

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

ESMAIL YERMIAN

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Ninth

Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra,

la-15a) is reported at 768 F.2d 365.

JURISDICTION

The judgment of the court of appeals was entered on

April 19, 1983. A timely petition for rehearing was

denied on July 5, 1983 (App. B, infra, 16a). The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTE INVOLVED

18 U.S.C. 1001 provides:

Whoever, in any matter within the jurisdiction of

any department or agency of the United States

(1)

2

knowingly and willfully falsifies, conceals or covers

up by any trick, scheme, or device a material fact,

or makes any false, fictitious or fraudulent state-

ments or representations, or makes or uses any

false writing or document knowing the same to

contain any false, fictitious or fraudulent statement

or entry, shall be fined not more than $10,000 or

imprisoned not more than’ five years, or both.

STATEMENT

Following a jury trial in the United States District

Court for the Central District of California, respondent

was convicted on three counts of making a false state-

ment in a matter within the jurisdiction of a federal

agency. in violation of 18 U.S.C. 1001. He was sen-

tenced to concurrent terms of five years’ imprisonment

on each count, the first six months to be served, and

the balance suspended in favor of a term of five years’

probation. The court of appeals reversed (App. A,

infra, la-15a).

1. The evidence at trial showed (see App. A, infra,

2a) that in 1979 respondent was hired as an engineer by

Gulton Industries, a defense contractor. Respondent

was required to obtain a Department of Defense securi-

ty clearance, since he was to have access to classified

material in the course of his employment. Gulton’s secu-

rity officer therefore asked respondent to fill out a “De-

partment of Defense Work Sheet for Preparation of

Personnel Security Questionnaire” (ibid.; Tr. 46-48).

In response to a question on the work sheet asking

whether he had ever been charged with any violation of

law, respondent failed to disclose that in 1978 he had

been convicted of mail fraud, in violation of 18°U.S.C. .

1341. In describing his employment history, respondent —

falsely stated that he had been employed by Bell Heli-

copter, Intérnational, of Houston, Texas, and Square D

Corporation of Los Angeles, California (Tr. 47-49,

54-55, 61-62; GX 1, 6). The Gulton security officer typed

3

the information provided by respondent onto another

document captioned “Department of Defense Personnel

Security Questionnaire.” Respondent reviewed that

document for errors and signed a certification stating

that his “answers [were] true, complete, and correct. to

the best of [his] knowledge and belief, and [were] made

in good faith” and that he knew “that any misrepresen-

tation or false statement * * * may subject [him] to

prosecution under: Section 1001 of.the United States

Criminal Code * * *” (GX 8, at 5). The form respon-

dent signed bore the following warning directly above

the signature block (Tr. 50-52; GX 3, at 5):

NOTE: PENALTY FOR MISREPRESENTA-

TION—Failure to answer all questions, or any

misrepresentation (by omission or concealment, or

by misleading, false, or partial answers) may serve

as a basis for denial of clearance for access to clas-

sified Department of Defense information. In addi-

tion, Title 18, United States Code 1001, makes it a

criminal offense, punishable by a maximum of 5

years imprisonment, $10,000 fine, or both, know-

ingly and willfully to make a false statement or

representation to any Department or Agency of

the United States as to any matter within the ju-

risdiction of any Department or Agency of the

United States.

This includes any statement knowingly and willful-

ly made by employer or employee herein which is

knowingly incorrect, incomplete or misleading in

any important particular * * *,

After witnessing respondent’s signature, the Gulton

security officer: mailed the completed form to the De-

fense Industrial Security Clearance Office for process-

ing (Tr. 51-52). Government investigators subsequently

discovered that the information respondent had fur-

nished was false, and he was denied a security clear-

ance. When told of the discovery, respondent acknowl-

4

edged that’the information he had provided was false

(App. A, infra, 2a; Tr. 68).

At trial, respondent testified that he had responded

falsely to questions on the security questionnaire con-

cerning his criminal record and employment history

(Tr. 58-60). He explained that he had made the false

statements so that the information on the security

questionnaire would be consistent with similar fabrica-

tions he had included on his employment application

(Tr. 62). Respondent testified that he believed the in-

formation on the form would be used by Gulton only for

classification of its employees and that he was unaware

that the information was to be transmitted to the De-

partment of Defense or to any other government agen-

cy (Tr. 62-63).! Respondent asserted that he had not

read the form carefully when he signed it and thus did

not notice either the words “Department of Defense” on

the first page or the warning printed above the signa-

ture block (Tr. 65-66).

Prior to trial, respondent submitted a proposed jury

instruction stating, inter alia, that a statement is

fraudulent “if known to be untrue, and made or caused

to be made with the intent to deceive the Government

agency to whom submitted” (E.R. 7). The trial court

rejected that proposal and instead instructed the jury

that the intent element of Section 1001 requires a find-

ing that petitioner “did * * * [the] act or acts [charged]

with knowledge * * * that the writing or document

was false or fictitious” and that he “knew or should

have known that the information was to be submitted

to a government agency” (Tr. 109). Respondent ob-

jected to the instruction, contending that only actual

' Respondent testified that he did not believe Gulten “would

have either the resources or the inclination” to verify the data

he had furnished (Tr. 69).

* “E.R.” signifies the excerpt of record filed in the court of

x he

5

knowledge that a statement is being made to an agency

of the United States satisfies the intent element of Sec-

tion 1001 (Tr. 84, 115).

On appeal, respondent again did not dispyte that he

had made false statements on the security question-

naire, but claimed only that he did not know the ques-

tionnaire would be sent to the government for purposes

of a security clearance. Respondent contended that the

trial court erred in failing to instruct the jury that it

was required to find that he had actual knowledge that

the statements were made in a matter within the juris-

diction of a federal agency (App. A, infra, 3a).

2. The court of appeals reversed (App. A, infra,

la-15a). The court held that in a prosecution under Sec-

tion 1001 the government must prove beyond a reason-

able doubt that the defendant knew at the time he

made the false statement that it was made in a matter

within the jurisdiction of a federal agency. The court

recognized (App. A, infra, 5a-6a) that its holding con-

flicts with decisions of the Fifth, Sixth and Seventh Cir-

cuits.’ In addition, it acknowledged that its construc-

tion of the intent requirement of Section 1001 is not

mandated by the language of the statute, which it

® United States v. Baker, 626 F.2d 512, 516 (5th Cir. 1980);

United States v. Stanford, 589 F.2d 285, 297 (7th Cir. 1978),

cert. denied, 440 U.S. 983 (1979); United States v. Lewis, 587

F.2d 864, 857 (6th Cir. 1978) (per curiam). The court observed

(Apr. A, infra, 4a-5a) that in other cases courts have assumed,

without deciding, that knowledge of federal involvement is an

element of a violation of Section 1001, citing United States v

Cella, 568 F.2d 1266, 1288 (9th Cir. 1977); United States v

F (2d Cir. 1978), cert. denied,

i

:

i

ft

cf

6

characterized as “ambiguous” (App. A, infra, 6a).4

However, the court concluded that the legislative histo-

ry of Section 1001 and its predecessors, although “not

entirely conclusive” (App. A, infra, 7a), suggests that

Congress intended that knowledge of the facts giving

rise to federal jurisdiction be an element of the offense.

The court observed (App. A, infra, 8a) that an

earlier version of Section 1001 expressly required proof

of an intent to defraud the government. In 1934 Con-

gress removed the reference to intent to defraud and

added the requirement that a statement be made in a

matter within the jurisdiction of a federal agency. The

court cited various statements made during congres-

sional consideration of the 1984 amendment, in which

legislators suggested examples of false statements that

would be covered by the amendment (App. A, infra,

10a-12a). Although the court acknowledged that many

of the legislators’ comments addressed versions of the

legislation that ultimately were not enacted, it con-

cluded that the comments nonetheless indicated that

the legislators believed the 1934 amendment would cov-

er cases in which the maker of a statement would have

known that it was made in a matter within the jurisdic-

tion of a federal agency (id. at 12a).5 The court con-

cluded on the basis of this legislative history “that Con-

gress intended that knowledge of federal involvement

«The court of appeals believed (App. A, infra, 6a-7a) that the

7

be an element of the crime” and that “the defendant’s

knowledge of federal involvement is entirely relevant to

the proper effectuation of the Congressional goals

* * *” (id. at 12a-13a).

The court of appeals rejected the government’s alter-

native argument that any requirement of knowledge of

federal involvement was satisfied by the objective

“should have known” portion of the jury instruction. In

the court’s view, the instruction that respondent “knew

or should have known that the information was to be

submitted to the government” was insufficient because

it allowed the jury to return a conviction even if it be-

lieved that respondent did not actually know that his

statements were within federal agency jurisdiction. The

court concluded that under the subjective standard of

criminal knowledge used by the Ninth Circuit the jury

was required to find—beyond a reasonable doubt—that

respondent had actual knowledge of federal involve-

ment. App. A, infra, 14a-15a.

REASONS FOR GRANTING THE PETITION

This case presents an important and recurring ques-

tion concerning the elements the government must

prove to establish a violation of the federal false state-

ment statute, 18 U.S.C. 1001. Section 1001 makes it a

crime “in any matter within the jurisdiction of any de-

partment or agency of the United States knowingly and

willfully [to] * * * make[] any false, fictitious or

fraudulent statements.” The court of appeals has held

that a defendant cannot be convicted under Section

1001 unless the government establishes beyond a rea-

sonable doubt not only that the defendant’s statement

was made in a matter within the jurisdiction of a feder-

ba

8

sions of the three other courts of appeals that have con-

sidered the issue. If permitted to stand, the decision

will substantially impede the government’s ability to

prosecute persons who have made false statements

that—although not made directly to a federal agen-

cy—have the capacity seriously to interfere with gov-

ernmental functions.

1. The Fifth, Sixth and Seventh Circuits have held

that knowledge that a statement is made in a matter

within the jurisdiction of a federal agency is not an es-

sential element of a violation of Section 1001. United

States v. Baker, 626 F.2d 512 (5th Cir. 1980); United

States v. Lewis, 587 F.2d 854 (6th Cir. 1978) (per

curiam); United States v. Stanford, 589 F.2d 285 (7th

Cir. 1978), cert. denied, 440 U.S. 983 (1979). In each of

those cases the defendants had submitted false state-

ments to a state or local agency responsible for adminis-

tering a program involving federal funding® and later

claimed not to have been aware of the federal involve-

ment in the program. In each case the court of appeals

rejected the defendants’ contention that the jury should

have been instructed that it was required to find be-

yond a reasonable doubt that the defendants knew of

the federal involvement.7

* In Baker the defendants submitted false time sheets to a lo-

cal housing authority, which in turn submitted the information

to the Department of Housing and Urban Development in con-

nection with the documentation of expenditures of federal grant

funds. In Lewis and Stanford the defendants applied through

state agencies to receive benefits under the Aid to Families

With Dependent Children and food stamp programs,

7 In some Section 1001 cases, courts have noted that the evi-

dence indicated that a defendant knew of federal involvement.

However, these cases do not hold squarely that such knowledge

is an essential element of the violation. See, e.g., United States

v, Cella, 568 F.2d 1266, 1288 (9th Cir. 1977); United States v.

Lange, 528 F.2d 1280, 1287 n.11 (5th Cir. 1976); United States

v. Candella; 487 F.2d 1223, 1226-1227 (2d: Cir. 1978), cert.

denied, 415 U.S. 977 (1974); Ebeling v. United States, 248 F.2d

, 434-435 (8th Cir.), cert. denied, 355 U.S. 907 (1957).

9

The three courts of appeals declined to read into Sec-

tion 1001 an “unexpressed requirement” that an indi-

vidual be aware not only that his statement is false, but

also that his fraud is being perpetrated on the federal

government (United States v. Lewis, supra, 587 F.2d

at 857, citing United States v. Feola, 420 U.S. 671

(1975)). The courts found clear support for their con-

struction of Section 1001 in the underlying legislative

purpose to prevent the perversion of the authorized

functions of federal agencies. See United States v.

Baker, supra, 626 F.2d at 515-516; United States v.

Stanford, supra, 589 F.2d at 297. They concluded that

requiring proof of actual knowledge of federal involve-

ment “would give the term [jurisdiction] a narrow and

technical meaning not intended by Congress.” Ibid.

Unlike the Fifth, Sixth and Seventh Circuits, which

“declinfed] to write any such requirement into the Act”

(United States v. Lewis, supra, 587 F.2d at 857), the

court below concluded that knowledge of the facts giv-

ing rise to federal jurisdiction is an essential element of

a violation of Section 1001 and that the prosecution

therefore must establish such knowledge beyond a rea-

sonable doubt. Unless this conflict in the circuits is re-

solved, there will be a serious adverse effect on the

government’s ability to protect federally-sponsored pro-

grams and other governmental functions from fraud.

The holding of the court below will affect a broad

range of false statement prosecutions. Much informa-

tion that is not transmitted directly to the federal gov-

ernment nevertheless is capable of affecting federal

functions because it ultimately is transmitted to a fed-

eral agency or otherwise used in connection with a fed-

eral program.® For example, many federal benefit pro-

® It is well established that statements may be made in a mat-

ter within the jurisdiction of the United States for purposes of

Section 1001, even if they are not made directly to the federal

government. See, e.g., United States v. Hooper, 596 F.2d 219,

222-223 (7th Cir. 1979); United States v. Candella, supra, 487

10

grams, including those relating to public welfare, medi-

cal care, employment training, and low income housing,

are administered primarily through state, local, or pri-

vate agencies. Beneficiaries of such programs normally

do not submit applications or other information directly

to the federal governm nt; rather, they deal with inter-

mediary agencies.* Subcontractors on government con-

tracts normally submit to the prime contractor state-

ments concerning prices, costs, and performance

standards,’® while sellers of a commodity sub-

ject to a government pricing program may provide cer-

tifications to purchasers.'! As in this case, private de-

fense contractors obtain information from their employ-

ees and forward it to the federal government, which

conducts security investigations. In each of these situa-

tions, false statements have the capacity to interfere

seriously with the integrity of a federal program: they

can induce the payment of federal funds not authorized

by statute, or the granting of a security clearance to an

individual who should not have access to sensitive de-

fense information. As the courts of appeals have not-

ed,’? these adverse effects on federal functions

F.2d at 1227; United States v. Matanky, 482 F.2d 1319, 1322

(9th Cir.), cert. denied, 414 U.S. 1039 (1973); United States v.

Waters, 457 F.2d 805 (3d Cir. 1972) (per curiam).

* See, e.g., United States v. Baker, supra (public housing);

United States v. Stanford, supra (welfare benefits); United

States v. Matanky, supra (medical benefits).

1° See, e.g., Ebeling v. United States, supra; 32 C.F.R.

XXIII (subcontracting policies and procedures).

11 See United States v. Wolf, 645 F.2d 23 (10th Cir. 1981).

12 See United States v. Baker, supra, 626 F.2d at 516;

United States v. Stanford, supra, 589, F.2d at 297-298. As the

court stated in Baker, supra, 626 F.2d at 516:

18 U.S.C. § 1001 is to protect federal funds and

functions from fraudulent interference. In these

purposes, it.is irrelevant whether defendant knew his

‘~

11

can occur whether or not the person making the false

statement can be shown to have been aware of the facts

supporting federal jurisdiction.

The decision below will make it impossible to obtain

convictions under Section 1001 in many cases. Aware-

ness of federal involvement is often peculiarly within

the knowledge of the defendant; when a false statement

is not submitted directly to a federal ‘agency, such

awareness cannot be inferred simply from the making

of the statement. Even in a case like this one, in which

the form gives clear notice that statements will be sub-

mitted to a federal agency, the government may be |

unable to rebut the defendant’s assertion that he did

not see the notice. Here the form was captioned “De-

partment of Defense Personnel Security Question-

naire,” and a large warning over respondent’s signature

explained that false statements could result in prosecu-

tion under Section 1001. Nevertheless, the government

was unable to present direct evidence to refute respon-

dent’s testimony that he failed to notice either the cap-

tion or the warning. The court below compounded the

difficulties of proof by holding that the government

would not be permitted to satisfy its burden of proof by

showing that under the particular circumstances a rea-

sonable person should have known that a statement fell

within the jurisdiction of a federal agency; instead the

government must establish subjective knowledge of

federal involvement.-Ih many cases, such proof will be

impossible, even though the potential for harm to feder-

al functions is clear.

2. The holding of the court below that knowledge of

federal involvement is an essential element of a viola-

tion of Section 1001 is at odds with Congress’s

“protecting federal functions and funds from fraud. es

the Court explained in United States v. Gilliland, 312

U.S. 86, 98 (194i) the statute, as amended in 1934, “in-

intentionally false statements might eventually influence a

federal agency.

12

dicated the congressional intent to protect, the author-

ized functions of governmental departmeffts and agen-

cies from the perversion which might result from the

deceptive practices described.” In view.of the broad

legislative purpose, the Court has concluded that Sec-

tion 1001 is to be read expansively. See United States

v. Bramblett, 348 U.S. 508, 507 (1955) (“[t]here is no *

indication in either the committee reports or in the con-

gressional debates that the scope of the statute was to

be in any way restricted”). The decision below subverts

the broad legislative objective by effectively immu-

nizing a broad category of false statements that are not

made directly to a federal sap enge but that can never-

theless cause serious harm/’to federal functions. Con-

gress could not have intended such a result.

_ The conclusion of the court below that the reference

to federal involvement in Section 1001 is not simply a

jurisdictional requirement, but also part of thescienter

requirement of the statute, is inconsistent with the rea-

soning of this Court in United States v. Feola, supra.

In Feola the Court held that knowledge of facts giving

rise to federal jurisdiction is not an essential element of

a violation of the federal assault statute, 18 U.S.C. 111.

The Court looked to the purposes of the statute in con-

cluding that “[aJll the statute requires is an intent to as-

sault, not an intent to assault a federal officer.” 420

U.S. at 684. The legislative purpose underlying Section

1001 similarly indicates that the statute requires only

the intent to deceive, not the intent to deceive the fed-

eral government. As in Feola, construction of the stat-

ute not to require knowledge of jurisdictional facts does

not create any risk of unfairness to defendants, because

the conduct at issue is wrongful regardless of the iden-

tity of the target. See 420 U.S. at 685.1%

18 The court of appeals suggested in a footnote (App. A,

infra, 14a n.14) that Feola could be distinguished from this case

on the ground that committing an assault is a crime in every.

state, even apart from the federal statute. However, the same

“~

13

Nothing in either the language or the legislative his-,

tory of Section 1001 indicates that Congress meant to

require that the government establish beyond a reason-

able doubt that a defendant had knowledge of the facts

that give rise to federal jurisdiction.’ The court of ap-

peals’ unprecedented expansion of the government’s

burden of proof in Section 1001 cases will seriously in-

terfere with the government’s ability to protect itsg""

funds and functions from fraud. In view of the conflict/

among the circuits created by the decision below; re-

view by this Court is warranted.

7

can be said of the making of a false statement. See, e.g., Cal.

Penal Code § 532 (West 1970) (false pretenses); id. § 484

(theft). In any event, making of a false statement punishable un-

der Section 1001 is malum in se; thus, there is no danger that an

unsuspecting defendant will be unfairly surprised if his conduct

turns out to be a violation of a federal statute.

See also United States v. Bankston, 603 F.2d 528, 532 (5th

Cir. 1979) (knowledge of interstate transportation is not an ele-

ment of a violation of 18 U.S.C. 1201); United States v. Hobson,

519 F.2d 765, 769-770 (9th Cir.), cert. denied, 423 U.S. 931

(1975) (knowledge by an accessory after the fact that a federal

offense has been committed is not required under 18 U.S.C. 3);

United States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970)

(knowledge that property taken belongs to the United States is

not an element of the offense under 18 U.S.C. 641).

14 The legislative history cited by the court of appeals (App.

A, infra, 8a-12a) consists primarily of scattered comments by

legislators about versions of the 1934 amendment to Section

1001 that never became law and that were considerably more -

restrictive than the amendment that eventually was enacted.

Moreover, the fact that the legislators: referred primarily to

types of false statements that normally would be made with

know edge of federal involvement does not suggest that Con-

gress intended to confine the reach of Section 1001 to those par-

rer are Pn of false statements. The court of appeals itself

¢c rized the legislative history as “not entirely conclusive”

(id. at 7a). In view of Congress’s broad purposes in enacting the

1934 amendments, the court’s restrictive reading of the legisla-

» tive history appears to be clearly incorrect.

14

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted. ;

Rex E. LEE

Solicitor General

STEPHEN S. TRoTT

Assistant Attorney General

PAUL M. BATOR

Deputy Solicitor General

CAROLYN F. CoRWIN

Assistant to the Solicitor General

JOHN F. DE PUE

Attorney Soft

AUGUST 1983

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 81-1192

DC No. CR 81-43-R

Filed April 19, 1983

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

Vv.

ESMAIL YERMIAN, DEFENDANT-APPELLANT.

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted May 3, 1982

Before: FLETCHER, PREGERSON and REINHARDT, Cir-

cuit Judges.

OPINION

FLETCHER, Circuit Judge:

Appellant Yermian was charged with violating 18

U.S.C. § 1001 (1976) At trial, Yermian’s defense

was simply that he did not know at the time he signed a

personnel security form that it would be sent to the

1 18 U.S.C. § 1001 (1976) states:

/ Whoever, in any matter within the jurisdiction of aziy de-

‘partment or agency of the United knowingly and

willfully falsifies, conceals or covers up by any trick,

scheme, or device a material fact, or makes any false, ficti-

o perp ngewe ry tating em 9

or uses any writing or document knowing the same to

contain any false, fictitious or fraud statement or en-

try, shall be fined not more than $10,088 or imprisoned not

more than five years, or both. . @&

2a

government. He appeals his conviction. Our jurisdiction

rests on 28 U.S.C. § 1291. We reverse the judgment

and remand for a new trial because the trial court con-

strued the scienter requirement of section 1001 too nar-

rowly and gave the jury an inadequate instruction on

that issue.

I, FACTS.

Shortly after appellant Yermian was hired as an engi-

neer by Galton Industries, Inc. (Galton) of Hawthorne,

California, Galton asked Yermian to fill out a personnel

security form. In filling out the form, Yermian provided

the company with false information as to his job history

and criminal record. At a later date, Galton presented

Yermian with a typed version of the form, which

Yermian signed, allegedly without carefully re-reading

it. A notice at the bottom of the typed form warned

that a false representation would be a violation of 18

U.S.C. § 1001 and elaborated on the possible penalty

for such a violation.

Galton subsequently sent the form to the Department

of Defense, pursuant to a routine FBI security check

necessitated by the nature of Galton’s work. The FBI

discovered that some of Yermian’s statements were

false and denied Yermian a security clearance. Confron-

ted with the reasons for the denial of his security clear-

ance, Yermian immediately conceded that he had lied.

Il. SCIENTER REQUIREMENT OF 18 U.S.C. § 1001.

18 U.S.C. § 1001 provides in part that “[wJhoever, in

any matter within the jurisdiction of any department or

agency of the United States knowingly and willfully ...

makes any false ... statements” shall be fined or im-

prisoned. 18 U.S.C. § 1001 (1976).?

tL

2In United States v. Rose, 570 F.2d 1358, 1363 (9th Cir.

1978), this court enumerated the’élements necessary for a con-

viction under 18 U.S.C. § 1001; (1) a statement; (2) falsity; (3)

3a

The courts have long recognized that a conviction un-

der section 1001 requires that defendant know at the

time he makes the statement that the statement is

false, United States v. Lange, 528 F.2d 1280, 1288-89

(5th Cir. 1976), and that the statement is made in a

matter within the jurisdiction of a federal agency,

United States v. Kraude, 467 F.2d 37, 38 (9th Cir.),

cert. denied, 409 U.S. 1076 (1972); Lowe v. United

States, 141 F.2d 1005, 1006 (5th Cir. 1944).

Yermian concedes that he knew at the time he made

the statement that it was false. He also concedes that

since the process of checking the security status of the

employees of a defense contractor is a matter within

the jurisdiction of the Department of Defense and since

his false statement regarding his prior employment his-

tory and criminal record was connected to that securi-

ty-checking process, the statement was made in a mat-

ter within the jurisdiction of a federal agency. He

asserts, however, that at the time he made the admit-

tedly false statement he had no idea that the statement

was part of a federal security-checking process and

hence had no knowledge that the statement was made

in a matter within the jurisdiction of a federal agency.

He contends that he had no knowledge that Galton was

required to submit information regarding the security

status of its employees to the federal government and

that Galton’s submission to the FBI of the information

Yermian had provided was entirely unexpected by him.

specific intent; (4) materiality; and (5) agency jurisdiction. As

the Rose court noted, in United States v. Bedore, 455 F.2d

1009, 1111 (9th Cir. 1972), we had further limited the scope of

§ 1001 to only those statements that either are_related to a

claim of the maker “to a privilege from the United States or to a

claim against the United States” or “might pervert or corrupt

the authorized functions of those agencies to whom the state-

ments were made.” »

4a

Hence, we must decide whether the element of spe-

cific intent embodied in the words “knowingly and will-

fully” of section § 1001 includes not only the defend-

ant’s knowledge of the statement’s falsity, but also the

defendant’s knowledge that the statement, at the time

it was made, was made in a matter within the jurisdic-

tion of a federal agency.

No decision in this circuit has addressed the precise

question raised here.* In United States v. Cella, 568

F.2d 1266, 1288 (9th Cir. 1978), the defendant con-

tended the evidence was insufficient to show that he

knew that his false statement was made in a matter

within the jurisdiction of a federal agency. We sus-

tained the conviction, on the basis that it was beyond

credulity that the defendant, who was the administra-

* For example, in United States v. Kraude, 467 F.2d 37, 38

(9th Cir.), cert. denied, 415 U.S. 977 (1974), where we held that

the submission of false Medicare claims to a contractual agent of

HEW was sufficient to support a conviction under § 1001, we

did not discuss the issue of defendant’s knowledge of federal in-

volvement, presumably because the defendant there must have

known that Medicare is a federal program and hence that his

false Medicare claims were made in a matter within the jurisdic-

tion of a federal agency. Similarly, in Gilbert v. United States,

359 F.2d 285, 287 (9th Cir.), cert. denied, 385 U.S. 882 (1966),

the issue of jurisdictional knowledge did not arise, since the de-

fendant “certainly was aware that the endorsement of the

(U.S.] checks was the first crucial step in their journey to the

Treasury Department where they would be ultimately pre-

sented for payment.” In Ogden v. United States, 303 F.2d‘724,

728-32 (9th Cir. 1962), a defense contractor employee raised,

and the court addressed only a defense based on impropriety of

the security clearance procedures and not one grounded on a

lack of jurisdictional knowledge. See also Neely v. United

States, 300 F.2d 67 (9th Cir.) (issue of jurisdictional knowledge

not raised), cert. denied, 369 U.S. 864 (1962); Brandow v.

United States, 268 F.2d 559 (9th Cir. 1959) (same); Pitts v.

United States, 263 F.2d 252 (9th Cir.) (same), cert. denied, 360

U.S. 985 (1959); Cohen v. United States, 201 F.2d 386 (9th Cir.)

(same), cert. denied, 345 U.S. 951 (1953).

\

*

5a

tor of Mercy Hospital, could be “ignorant” of the fact

that his false entries on hospital records “would eventu-

ally be used to prepare income tax returns ... and Med-

icare reimbursement reports.” There was also direct

evidence of the defendant’s knowledge. In Cella we as-

sumed, without holding, that an element of the offense

was knowledge of federal involvement.

In sustaining convictions under section 1001, the Sec-

ond and Eighth circuits have apparently made the same

assumption, stressing in their opinions the fact that the

defendant had actual knowledge that his false state-

ment was made in a matter within the jurisdiction of a

federal agency. E.g., United States v. Candella, 487

F.2d 1228, 1226-27 (2d Cir. 1973) (defendant “was

aware” that his false statements submitted to New

York City would form basis for federal reimburse-

ment), cert. denied, 415 U.S. 977 (1974); Ebeling v.

United States, 248 F.2d 429, 434-35 (8th Cir.) (defend-

ant employee personally knew and intended that false

invoices would become part of a cost statement sub-

mitted to federal government by employer for reim-

bursement), cert. denied, 355 U.S. 907 (1957).

By contrast, courts in the Fifth, Sixth, and Seventh

circuits have stated that the defendant’s knowledge

that a false statement is made in a matter within the ju-

risdiction of a federal agency is not a necessary element

of section 1001. United States v. Baker, 626 F.2d 512,

516 (5th Cir. 1980);* United States v. Stanford, 589

F.2d 285, 297 (7th Cir. 1978), cert. denied, 440 U.S. 983

* Although oii, Soe years before Baker the Fifth Circuit had

stressed the existence of defendants knowledge of the “federal

government’s connection with ... [the false) affidavit” in sus-

taining a § 1001 conviction, United States v. Lange, 528 F.2d

1280, 1287 n.11 (5th Cir. 1976), in its 1980 decision, the Fifth

Cireuit did not mention, let alone Lange's emphasis

on the existence of the defendant’s kno ledge of federal .

involvement.

6a

(1979); United States v. Lewis, 587 F.2d 854, 857 (6th

Cir. 1978) (per curiam). Each of those cases, however,

involved a direct attempt by a defendant to obtain

funds from a federal source by fraudulent means.

We are now confronted directly with the question

whether the government must prove as an essential el-

ement of a section 1001 violation that at the time the

defendant made the false statement he knew that the

statement was made in a matter within the jurisdiction

of a federal agency. In light of the paucity of analysis in

the cases and the lack of direct authority in our circuit,

we must look closely at the language of section 1001 and

the policy and purposes underlying it to determine

whether jurisdictional knowledge is.an essential ele-

ment of a section 1001 offense.

We find the language of the statute ambiguous, as

did the court in Baker, 626 F.2d at 515. While the

phrase “knowingly and willfully” clearly provides that

specific intent is a crucial element of the offense, nei-

ther the grammatical construction nor the punctuation

of the statute indicates whether the “knowingly and

willfully” phrase modifies only the phrase “makes any

false, fictitious or fraudulent statements” or the

broader phrase “in any matter within the jurisdiction of

any department or agency of the United States ...

makes any false, fictitious or fraudulent statements.”

The placement of the “knowingly and willfully”

phrase after, rather than before, the “jurisdiction

phrase” is not indicative of whether jurisdictional

knowledge is an element of the section 1001 offense. In

the immediate statutory predecessor to section 1001,

the words “knowingly and willfully” did precede not

only the phrase “make ... any false or fraudulent state-

ments” but also the phrase “in any matter within the

jurisdiction of any department or agency of the United

States.” Act of Apr. 4, 1938, ch. 69, 52 Stat. 197 (the

7a

“1938 Act”). The recodification of the 1938 Act in 1948,

that resulted in the present language of section 1001,

was intended to be not a “substantive change,” see

United States v. Bramblett, 348 U.S. 508, 508 (1954)

(describing 1948 revision of the 1938’ Act), but merely

one of several “minor changes of phraseology.” H.R.

Rep. No. 304, 80th Cong., 1st Sess. A80-A81 (1947) re-

printed in 1948 U.S. Code Cong. Serv., Spec. Pamphlet

for Title Eighteen 2434, 2535. Consequently, the fact

that the “jurisdiction” phrase now precedes the “know-

ingly and willfully” phrase is not determinative of

whether or not the latter phrase was meant to be read

to modify the “jurisdiction” phrase.®

Although perhaps not entirely conclusive, the legisla-

tive history of section 1001 and its predecessors sup-

ports the view that Congress intended jurisdictional

knowledge to be an element of the crime.”

* The 1938 Act stated in pertinent part:

[W]hoever shall knowingly and willfully falsify or conceal

or cover up by any trick, scheme, or device a material fact,

or make or cause to be made any false or fraudulent state-

ments or representations, or make or use or cause to be

made or used any false bill, receipt, voucher, roll, account,

claim, certificate, affidavit, or deposition, knowing the

same to contain any fraudulent or fictitious statement or

entry, in any matter within the jurisdiction of any depart-

ment or agency of the United States or of any corporation

in which the United States of America is a stockholder ...

shall be fined.

Act of Apr. 4, 1988, ch. 69, 52 Stat. 197.

* The inclusion of the word “knowing” in the third clause of

§ 1001, which emphasizes that the defendant must know that a

document he makes or uses contains a falsehood, sheds no light

on whether jurisdictional knowledge is required, since the

phrase “knowingly and willfully,” appearing before all three

clauses, remains to provide the basis for a requirement of

knowledge of federal involvement pertaining to all three

clauses. ,

* While discussing the purported policy and purposes behind

§ 1001 in general terms, neither the Baker nor the Stanford

8a

The earliest predecessor of the present section 1001

that made the making of a false statement in a matter

within the jurisdiction of any federal agency® a crime,

the Act of Oct. 23, 1918, ch. 194, 40 Stat. 1015 (the

“1918 Act”),® specifically included an element of specific

intent to defraud the United States. No one could be

convicted under the 1918 Act for making a false state-

ment unless he had done so either “for the purpose of

obtaining ... the payment” of a “claim upon or against

the Government of the United States” or “for the pur-

pose and with the intent of cheating and swindling or

defrauding the Government of the United States.” 40

court examined the legislative history of § 1001 or its predeces-

sor statutes. Baker, 626 F.2d at 515-16; Stanford, 589 F.2d at

297-98. The Lewis court, in its analysis of the legislative history

of § 1001, did little more than paraphrase a tangentially related

Supreme Court case. 587 F.2d at 856-57.

® Previous to the 1918 Act, the making of a false statement

was itself punishable as a federal crime only if the statement

was made for the purpose of obtaining payment or approval of a

federal claim and the federal claim was made or presented for

payment to or approval by military personnel. See Act of March

4, 1909, ch. 321, 35 Stat. 1088, 1095-96 (1909).

* The 1918 Act stated in pertinent part:

[Wjhoever, for the purpose of obtaining or to ob-

tain the payment of [a “claim upon or against the Govern-

ment of the United States or any de nt or officer

therefor, or any corporation in which United States of

the intent of cheating and swindling or defrauding the Gov-

ernment of the United States or any de nt thereof,

or any corporation in which the United of America

is a stockholder, shall knowingly and willfully falsity [sic]

pee or ermine dh Be. Gms agra base me or device a

material fact, or make or cause to be made any false or

fraudulent statements or representations, or make or use

or cause to be made or used any false bill, , vouch-

er, roll, account, claim, cartificate, affidavit, or .

the same to contain any fraudulent or

statements or entry .... shall be fined.

Act of Oct. 23, 1918, ch. 194, 40 Stat. 1015 (emphasis added).

9a

Stat. at 1015 (emphasis added). This requirement of

specific intent to defraud the United States carried

with it an implicit, if not explicit, requirement that the

maker of the false statement know that the statement

is made in a matter within the jurisdiction of a United

States agency.

After the Supreme Court had narrowly construed the

phrase “defrauding the Government of the United

States” contained in the 1918 Act to mean solely “fraud-

ulent{ly] causing ... [a] pecuniary or property loss” to

the federal government, United States v. Cohn, 270

U.S. 339, 346-47 (1925), Congress sought to extend the

reach of the statute to protect more broadly “the au-

thorized functions of governmental departments and

agencies from the perversion which might result from

... deceptive practices.” United States v. Gilliland,

312 U.S. 86, 93 (1940) (describing enactment of the Act

of June 18, 1934, ch. 587, 48 Stat. 996 (the “1934

Act”)).!° To effect the change, Congress deleted the

references to a “purpose” of obtaining payment of a

claim upon or against the United States and to a “pur-

pose” and “intent” of cheating or defrauding the United

States. Jd. However, to be sure that a conviction under

the new law still required the making of a false state-

ment in a matter within the jurisdiction of the federal

1° The 1934 Act stated in pertinent part:

(W)hoever shall knowingly and ping en bere haar rg

or cover up by any trick, scheme, or de a material fact

or make or cause to be made any false or fraudulent state-

ments or re tations, or make or use or cause to be

made or any false bill, receipt, voucher, roll, account,

ment or of tg Ue ere ae

in which nited States of America is a

shall be fined.

Act of June 18, 1984, ch. 587, 48 Stat. 996.

10a

government, Congress inserted a new reference to fed-

eral jurisdiction at the end of the description of the pro-

hibited conduct.'! United States v. Bramblett, 348

U.S. at 507-08 (describing 1948 revision of the 1938

Act) (“jurisdiction” phrase inserted “simply to compen-

sate for the deleted language as to purpose—to indicate

that not all falsifications but only those made to govern-

ment organs were reached”).

The committee reports and the Congressional de-

bates on the various bills'? which culminated in the

—

11 Td,

12 The convoluted legislative history of the 1934 Act began

with the submission of proposed legislation by the Secretary of

the Interior on February 7, 1934, to the House and Senate judi-

ciary committees, which legislation was designed to penalize the

“presentation of a false written instrument” in any matter with?

in the jurisdiction of the Secretary. S. Rep. No. 288, 73d Cong.,

2d Sess. 1 (1934); H.R. Rep. 829, 783d Cong., 2d Sess. 2 (1934).

Drawing on the Secretary’s proposal, each committee then re-

ported similar bills to the floor, 78 Cong. Rec. 2387 (1934) (re-

porting S.R. 2686); id. at 3112 (reporting H.R. 8046), although

the House committee had amended the language of the Secre-

tary’s proposal to include an element of intent to defraud the

United States. Compare id. at 3724 (H.R. 8046) with id. at

2152, 2858-59 (S.R. 2686). After debate on and passage of each

bill in its house of origin, id. at 2858-59 (S.R. 2686); id. at

3724-25 (H.R. 8046), the Senate requested the return of its bill

from the House and adopted the earlier enacted House version,

id, at 5746. President Roosevelt then vetoed H.R. 8046 solely

on the gound that the bill would punish with lesser penalties

certain conduct that was already punishable under the 1918 Act.

Id. at 6778-79.

Within two months of the presidential veto, the Senate com-

mittee on the judiciary, abandoning H.R. 8046, reported amend-

ments to another then unenacted bill, H.R. 8912, 73d Cong., 2d

Sess. (1934), which had been designed to extend the 1918 Act to

cover injury to U.S. property. The Senate amendments of H.R.

8912 further broadened the scope of the 1918 Act to punish also

the presentation of false papers to a federal agency—even

where no pecuniary loss to the government resulted—without

lla

1934 Act contain references to the act’s broadening the

offense to include the presentation of false papers “be-

fore any department or agency of the Government,”

H.R. Rep. 829, 73d Cong., 2d Sess. 2 (1934) (emphasis

_added) (report on H.R. 8046); to the protection of “[t]he

“rights of the accused” by a requirement that the “act [of

presentation of a false written instrument relating to

any matter within federal jurisdiction] must be com-

mitted willfully and knowingly,” id.; to the extension of

the law so that it “would close around and prosecute

those who ... make false affidavits or submit fictitious

bids, and so forth,” 78 Cong. Rec. 2859 (1934) (state-

ment of Sen. Ashurst on S.R. [sic] 2686); to the “pur-

pose” of the bill being to protect “the revenues of the

people from persons who knowingly make false certifi-

cates and supply fictitious bids” and to stop ‘these

lessening the penalties provided under the 1918 Act. 78 Cong.

Rec. 9790 (1934) (submitting S. Rep. 1202, 73d Cong., 2d Sess.

1 (1934)). The bill as amended was passed by the Senate, id. at

11,270-71, and concurred in by the House, id. at 11,513. After

examination and signing, id. at 11,559, 11,602, the bill was pre-

sented to, id. at 12,259, and signed by the President, id. at

12,452.

H.R. 8912, as amended, being a modification of the previous

1918 Act rather than a newly drafted statute like H.R. 8046 or

S.R. 2686, contains phrasing different from H.R. 8046 or S.R.

2686, upon which the 1934 House and Senate debates and com-

mittee consideration centered. Nonetheless, neither the Senate

report that set forth the amendments to H.R. 8912 nor the brief

Congressional proceedings accompanying the swift passage of

H.R. 8912 as amended contain any indication whatsoever that

the Congress, by substituting H.R. 8912 (the 1984 Act) for the

previously passed but. vetoed H.R. 8046, intended to alter any

substantive aspect of the old bill—including the requisite ele-

ments of the offense—other than its lesser penalties and its pro-

vision for a specific intent to defraud the United States. Hence,

the Congressional debates and committee reports pertaining to

H.R. 8046 and S.R. 2686, while technically perhaps not part of

the legislative history of the 1934 Act, nonetheless are directly

indicative of the Congressional intent underlying the 1934 Act.

=

12a

grafters, place hunters, and obscene buzzards who are

trying to extract money illegally out of the Treasury,”

id. at 2858; and to the printing of a warning about the

law on “every proposal,” id. at 3724 (statement of Re).

McKeown on H.R. 8046). These references indicate

that the legislators contemplated application of the 1934

Act in situations where the maker of the statement

knows that the statement is made in a matter within

the jurisdiction of a federal agency. The fact that the

amendment was directly designed to remedy two sorts

of conduct in which the makers of false statements

clearly know of Federal involvement—the presentation

of “false papers” regarding hot oil before the Depart-

ment of Interior and the use of false certificates of

wages paid by contractors in order to obtain reimburse-

ment from the Public Works Administration, S. Rep.

No. 1202, 73d Cong., 2d Sess. 1 (1934) (report on H.R.

8912 amendments)—also supports the conclusion that

Congress, in deleting from the statute the requirement

of fraudulent intent to cause pecuniary loss, did not at

the same time intend to eliminate the previous require-

ment that the maker know that the statement was

made in a matter within the jurisdiction of a federal

agency. ‘

We conclude that Congress intended that knowled

of federal involvement be an element of the crime. We

agree with the Baker court that “18 U.S.C. § 1001 is

designed to protect federal funds and functions from

fraudulent interference.” 626 F.2d at 516; see also

United States v. Gilliland, 312 U.S. 86, 93 (1940). This

is entirely consistent with the language of the statute

and its history. But we do not subscribe to the view

that “(ijn furthering these purposes, it is irrelevant

whether defendant knew that his intentionally false

statements might eventually influence a federal agen-

cy.” Baker, 626 F.2d at 516 (emphasis added). To the

contrary;the defendant’s knowledge of federal involve-

ment is entirely relevant to the proper effectuation of

13a

the Congressional goals, and a requirement of section

1001 that such knowledge exist is entirely consistent

with the Congressional view of the scope of the statute

as revealed by the statutory language and legislative

history.

Accordingly, we hold that as an essential element of a

section 1001 violation, the government must prove be-

yond a reasonable doubt!* that the defendant knew at

the time he made the false statement that it was made

in a matter within the jurisdiction of a federal agency.!4

‘8 The existence on the form Yermian signed of a warning

that a false statement violates § 1001 is, of course probative of

Yermian’s knowledge that he was making a statement in a mat-

ter within the jurisdiction of a federal agency, but is not, in, and

of itself, conclusive on the issue of specific intent. Contra Terry

v. United States, 131 F.2d 40, 43 (8th Cir. 1942) (defendant “by

legal implication ... bound to know” from references on form to

Federal Housing Administration that false statement was made

in a matter within jurisdiction of federal agency).

14 Because of the similarity of § 1001 to the perjury statute,

18 U.S.C. § 1621 (1976), we find that the cases construing

§ 1621 bolster our conclusions here. To convict under the perju-

ry statute, the government must prove (1) that the defendant

actually knew that his statement at the time he made it was

false, United States v. Sweig, 441 F.2d 114, 117 (2d Cir.), cert.

denied, 403 U.S. 932 (1971), and (2) that the defendant made the

statement under oath, United States v. Arias, 575 F.2d 258,

254 (9th Cir.), cert. denied, 439 U.S. 868 (1978). In the context

of the perjury offense, the defendant’s taking of an oath ensures

that he knows that his false statement, unlike most other false

statements he may have made, could possibly subject him to

criminal prosecution.

The same principle applies with equal force in the context of

§ 1001. To ensure that a person knows that the making of a

false statement could subject him to criminal liability, the de-

‘fendant must know at the time he makes the statement that the

statement is made in a matter within the jurisdiction of the gov-

ernment. The making of a false statement to a private entity,

without knowledge that the statement is made in a matter with-

in the jurisdiction of a federal agency, does not fall within the

l4a

Ill. ADEQUACY OF JURY INSTRUCTIONS.

The government contends that even if knowledge of

governmental involvement is an essential element of 18

U.S.C. § 1001, the instruction given to the jury met

that requirement. The jury was instructed that it could

convict upon a finding “that the defendant knew or

should have known that the information was to be sub-

mitted to the government” (emphasis added). The gov-

ernment argues that the instruction reflects a “reason-

ably foreseeable” standard and that this “objective”

standard’ is proper if knowledge that the statement is

destined for the government is an element of the crime.

The standard proposed by the government, however,

does not comport with the “subjective” standard of

criminal knowledge required by this circuit. United

States v. Jéwell, 532 F.2d 697 (9th Cir.) (en bane), cert.

denied, 426 U.S. 951 (1976). In Jewell, we held “(1)

that the required knowledge is established if the ac-

strictures of § 1001, even if the statement is in fact forwarded

to the government.

For similar reasons, we are not convinced by the reliance of

the Stanford and Lewis courts on United States v. Feola, 420

U.S. 671 (1975). See Stanford, 589 F.2d at 297-98; Lewis, 587

F.2d at 857. In Feola, the Supreme Court held that 18 U.S.C.

§ 111 (1976), which makes assault upon a federal officer a feder-

al offense, does not include as an element of the offense the de-

fendant’s knowledge that the assaulted person is a federal offi-

cer. 420 U.S. at 684. However, unlike making a false statement,

committing an assault is a crime—even apart from the federal

statute—in every state of the Union. Hence, as the Supreme

Court pointed out, § 111 is “no snare for the unsuspecting,”

since one committing an assault “knows from the very onset

that his planned course of conduct is wrongful” and because

§ 111 does not create a “situation ... where legitimate conduct

becomes unlawful solely because of the [federal] identity of the

individual or agency affected.” Jd. at 685.’

8 By contrast, a “subjective” knowledge standard requires’

proof that the defendant actually knew the pertinent fact.

15a

cused is aware of a high probability of the existence of

the fact in question, (2) unless he actually believes it

does not exist.” Jd. at 704 n.21; see also United States

v. Esquer-Gamez, 550 F.2d 1231, 1235-36 (9th Cir.

1977).

In this case, the court’s instruction allowed the jury

to find knowledge merely on the basis that the defend-

ant should have known that his statements were going

to the government and hence were made in a matter

within federal agency jurisdiction. It allowed the jury

to convict Yermian even if it did not find that he was

aware of a high probability that the statement was

made in a matter within the jurisdiction of the govern-

ment, or, indeed, even if it believed that he, in fact, did

not know that his statement would be sent to the

government.

The district court’s judgment is, therefore, RE-

VERSED and REMANDED.

16a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 81-1192

DC No. CR 81-43-R

Filed July 5, 1983

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

Vv.

ESMAIL YERMIAN, DEFENDANT-APPELLANT.

Before: FLETCHER, PREGERSON and REINHARDT, Cir-

cuit Judges

ORDER

The panel as constituted in the above case has voted

unanimously to deny the petition for rehearing and to

reject the suggestion for a rehearing en banc.

The full court has been advised of the suggestion for

en banc rehearing and no judge of the court has re-

quested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sugges- .

tion for a rehearing en banc is rejected.