Blake v. United States, 17249.

• Decision Date: 11 October 1963
• Docket Number: No. 17249.,17249.
• Citation: 323 F.2d 245
• Parties: Samuel Lee BLAKE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

323 F.2d 245 (1963)

Samuel Lee BLAKE, Appellant, v. UNITED STATES of America, Appellee.

No. 17249.

United States Court of Appeals Eighth Circuit.

October 11, 1963.

Kenneth K. Simon, Kansas City, Mo., Lewis E. Pierce, Kansas City, Mo., on the brief, for appellant.

Joseph P. Teasdale, Asst. U. S. Atty., Kansas City, Mo., F. Russell Millin. U. S. Atty., on the brief, for appellee.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and MEREDITH, District Judge.

VAN OOSTERHOUT, Circuit Judge.

Defendant Blake appeals from his conviction on a charge of making false statements in violation of 18 U.S.C.A. § 1001 in an application for Christmas employment made to the Post Office Department at Kansas City, Missouri.

Defendant admits that he gave a false negative answer to an inquiry in the application as to whether he had been arrested, charged or held by federal, state or other law enforcement officials for law violations other than minor traffic offenses. It is stipulated that the defendant has been arrested for assault to commit murder, for possession of narcotics, for frequenting a gambling game and for drunkenness, and that he has been convicted and has served time on the narcotics charge.

The sole error asserted on this appeal is that the court erred in denying defendant's motions for acquittal made at the close of the Government's case and renewed at the close of all of the evidence. Defendant's contention at the trial and upon this appeal is that defendant's false answer is not material in that it was not reasonably likely to influence nor was it capable of influencing the decision of the Post Office Department with respect to the employment of the defendant.

Section 1001 reads:

"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 five years, or both."

The trial court in a memorandum opinion reported at D. C., 206 F.Supp. 706 on defendant's pretrial motion to dismiss, which raises substantially the same question as the motions for acquittal, holds that materiality of a false allegation is an essential element of the offense charged.¹ The court so instructed the jury. Since such ruling is favorable to the defendant, it affords no basis for complaint. We shall for the purposes of this case assume materiality to be an essential element of the offense charged.

Defendant argues that his false statements are not material because the Government did not rely upon them. Defendant points to the evidence that all applicants' records were checked routinely at the Kansas City Police Department and that such check revealed the defendant's criminal record and that such record was available before any action was taken upon the employment application.

Defendant further urges that there is no great national interest or problem of national security involved in the appointment of temporary postal help and that the statute is not intended to apply to such a situation.

In determining whether a false statement is material, the test is whether it "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made." Gonzales v. United States, 10 Cir., 286 F.2d 118, 122; Weinstock v. United States, D.C. Cir., 97 U.S.App.D.C. 365, 231 F.2d 699, 701-702.

Courts have specifically held that a false statement with regard to applicant's prior criminal record in an application for employment by a Government agency is material within the meaning of § 1001. Alire v. United States, 10 Cir., 313 F.2d 31; Pitts v. United States, 9 Cir., 263 F.2d 353; United States v. De Lorenzo, 2 Cir., 151 F.2d 122.

The Alire case, like our present case, involves a false statement as to criminal record made in an application for Post Office employment. The court in its opinion discusses the scope of § 1001, stating:

"This section contains no exceptions nor any separate or special treatment for false statements in any particular situation or type of employment. Following its amendment in 1934, the courts have uniformly applied it to a variety of situations and have applied it in its broad and general terms. There is no basis for this court to read into the section any exceptions or modifications. The intent of Congress, as shown by the 1934 amendment of the section and as indicated in the legislative history, is clear. The Supreme Court in United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598, stated that the scope of the statute had been greatly increased by reason of the 1934 amendment, and said the amendment showed the intent of Congress to protect the authorized functions of the various governmental departments from any type of deceptive practices, and saw no reason why the scope of the

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