728 F.2d 1359 (11th Cir. 1984), 82-6117, United States v. Lopez

Docket Nº:82-6117
Citation:728 F.2d 1359
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Peter Miguel LOPEZ, Defendant-Appellant.
Case Date:March 30, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1359

728 F.2d 1359 (11th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Peter Miguel LOPEZ, Defendant-Appellant.

No. 82-6117

United States Court of Appeals, Eleventh Circuit

March 30, 1984

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[Copyrighted Material Omitted]

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Peter Miguel Lopez, pro se.

Stanley Marcus, U.S. Atty., Linda Collins Hertz, Robert J. Bondi, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT, ANDERSON and CLARK, Circuit Judges.

PER CURIAM:

Appellant Peter Lopez was convicted in a jury trial for giving false information to the Immigration and Naturalization Service ("INS"), in violation of 18 U.S.C.A. Sec. 1001 (West 1976). On appeal, he alleges, inter alia, that the false information he provided was not "material" so as to support his criminal conviction. We affirm.

I.

Peter Lopez is an attorney in Miami, Florida, with an active immigration law practice. Between 1978 and 1980, he represented 22 foreign nationals seeking residency in the United States. His actions on behalf of these clients are the source of the conviction appealed from.

Lopez filed an Application for Status as Permanent Resident (Form I-485) for each of his 22 clients. The form has a box for entering an applicant's "priority date," i.e., the date that the foreign citizen first notified an American Consular office of the intention to seek residency in the United States. This date is used to determine the order in which aliens will be granted residency according to the preference system used by the INS.

Lopez acknowledges that he knowingly placed false priority dates on the applications. None of his clients had, in fact, received priority dates when the forms were filed. Lopez' reason for this intentional deception is complicated. He testified that he planned to file a class action lawsuit or seek a private bill in Congress on behalf of his clients in order to obtain residency for them. However, he determined that neither option would be available unless he first "exhausted" administrative remedies before the INS. Because he thought that the placement of a false priority date normally results in an accelerated official denial of an application (whereas explaining that the applicant has no date prevents the INS from deciding the application), he chose to falsify the information and thereby speed up the exhaustion of administrative remedies. 1 These falsifications were detected and this criminal action was initiated.

II.

On appeal, Lopez raises various issues. We consider the following:

(A) Were the falsified statements "material" within the meaning of 18 U.S.C.A. Sec. 1001?

(B) Did the trial court commit error by failing to recount certain testimony when requested by the jury?

(C) Did the allegation that one juror may have consumed alcohol during the trial warrant a new trial?

(D) Was Lopez' trial counsel ineffective? 2

A. The "Materiality" of the False Statements

18 U.S.C.A. Sec. 1001 (West 1976) states:

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Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements 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 5 years, or both.

The requirement that the falsification be of a "material" fact, while only contained in the first clause of the statute, has been read into the entire statute so as to exclude trivial falsifications from its coverage. United States v. Lichenstein, 610 F.2d 1272, 1278 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980). 3 To be "material," a falsification "must have a natural tendency to influence, or be capable of affecting or influencing, a government function." United States v. McGough, 510 F.2d 598, 602 (5th Cir.1975). 4 It makes no difference that a specific falsification did not exert influence so long as it had the capacity to do so. United States v. Lichenstein, 610 F.2d at 1278.

Lopez argues that his falsifications had no capacity to influence INS activity. He thought that the priority dates would be checked, found to be false, and lead to the denial of the applications. In fact, the very success of his scheme to bypass administrative remedies depended on the discovery of the falsification. In every case, the improper priority date was eventually discovered by INS officials.

Even assuming that Lopez' statements could not trick the INS into granting residency, several considerations combine to persuade us that the district court was correct in concluding that the "materiality" element is met here.

The submission of falsehoods influenced the agency's treatment of the applications. Had no date been placed on the forms, they would have been returned to the applicants. Instead, Lopez placed false dates...

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