U.S. v. Culliton, 00-10599.

• Decision Date: 30 April 2003
• Docket Number: No. 00-10599.,00-10599.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James M. CULLITON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1074

328 F.3d 1074

UNITED STATES of America, Plaintiff-Appellee, v. James M. CULLITON, Defendant-Appellant.

No. 00-10599.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2002.

Filed April 30, 2003.

COPYRIGHT MATERIAL OMITTED

Richard Staff, Sacramento, CA, for the defendant-appellant.

James P. Arguelles, Assistant U.S. Attorney, Sacramento, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; Edward J. Garcia, District Judge, Presiding, D.C. No. CR-99-00537-EJG.

Before GOODWIN, HAWKINS and FISHER, Circuit Judges.

ORDER

The opinion filed August 22, 2002, and appearing at 300 F.3d 1139 (9th Cir.2002), is WITHDRAWN. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

OPINION

PER CURIAM.

James Culliton appeals his felony conviction under 18 U.S.C. § 1001 for making false statements on a medical form submitted to the Federal Aviation Administration ("FAA"). Culliton bases his appeal on three legal theories: First, the FAA form is fundamentally ambiguous and therefore the district court should have dismissed the Government's false statement indictment. Second, Culliton's felony conviction resulted from selective prosecution and therefore amounted to a denial of Due Process. Third, the doctrine of primary jurisdiction prevented the district court from presiding over Culliton's indictment until, and unless, the FAA first revoked his medical certification.

We reject all three theories and affirm Culliton's conviction, after a jury trial, for making knowing and willful false statements in a matter within the jurisdiction of the FAA.

BACKGROUND

James Culliton is an aviation lawyer, a pilot, and a former inspector for the FAA. In August 1995, he reclined in a chair that broke and tipped over, causing him to hit the back of his head against a credenza nearby. Following the accident, Culliton sought treatment from various health professionals, including a primary care physician, an ophthalmologist, and a neurologist, for a variety of medical problems. For almost two years after the accident, Culliton complained of decreased vision in the right eye, occasional double vision, dizziness, nausea, persistent headaches, difficulty with concentration, personality-type changes, and anxiety attack symptoms.

Culliton brought a personal injury action against three defendants responsible for manufacturing and retailing the defective chair. Two of the defendants agreed to settle for $500,000 while the third defendant, Viking Office Products, asserted a defense of insurance fraud and refused to settle. At this point, the parties' accounts of the subsequent events diverge.

Culliton contends that Viking's private detectives convinced a state investigator for the California Department of Insurance to pursue a fraud prosecution through the Sacramento County District Attorney's Office. When the D.A.'s office refused to proceed, the state investigator prevailed upon the U.S. Attorney for the Eastern District of California to prosecute Culliton for false statements made to the FAA about his medical history.

The Government maintains that this prosecution was not "selective." It asserts that Viking originally reported its suspicion of insurance fraud to the county D.A.'s office which, because of lack of funding, referred the matter to the California Department of Insurance for further investigation. In the course of preparing its case, one of the department's investigators learned of Culliton's false statements to the FAA. When the department determined that it would not bring a fraud action, it referred the case to the U.S. Attorney's Office for possible federal prosecution under 18 U.S.C. § 1001. The statute provides in relevant part:

[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully — (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.

The basis for the Government's prosecution occurred in June 1997 when Culliton, in the course of obtaining an airman medical certificate, answered "No" to the following three questions contained in FAA Form 8500-8:¹

Have you ever had or have you now, any of the following? Answer "yes" for every condition you have ever had in your life. In the EXPLANATION box below, you may note "PREVIOUSLY REPORTED, NO CHANGE" only if the explanation of the condition was reported on a prior application for an airman medical certificate and there has been no change in your condition. See instructions page. (Emphasis in original.) (b) dizziness or fainting spells — Yes or No

(d) eye or vision trouble except glasses — Yes or No

(m) mental disorders of any sort: depression, anxiety, etc. — Yes or No

The instructions page provides:

MEDICAL HISTORY-Each item under this heading must be checked either "yes" or "no." You must answer "yes" for every condition you have ever had in your life and describe the condition and approximate date in the EXPLANATIONS box.

If information has been reported on a previous application for airman medical certificate and there has been no change in your condition, you may note "PREVIOUSLY REPORTED, NO CHANGE" in the EXPLANATIONS box, but you must still check "yes" to the condition. Do not report occasional common illnesses such as colds or sore throats.

Even though Culliton recently sought medical treatment for dizziness, vision problems, and anxiety symptoms, see supra, he answered "No" to each query recited above. After a four day trial, a jury convicted Culliton of knowingly providing false statements to a federal agency in violation of 18 U.S.C. § 1001 and the court imposed a fine of $5,000. Culliton filed a timely notice of appeal. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm the judgment.

ANALYSIS

I. Fundamental Ambiguity of FAA Form 8500-8

Culliton's first argument on appeal is that the district court should have dismissed his indictment because of the "fundamental ambiguity" of FAA Form 8500-8 ("Form") and its questions. This circuit has not yet defined the standard of review for the dismissal of a false statement indictment based on fundamental ambiguity. We need not do so here because the Form is not ambiguous under any standard of review.

Generally speaking, the existence of some ambiguity in a falsely answered question will not shield the respondent from a perjury or false statement prosecution. See United States v. Ryan, 828 F.2d 1010, 1015 (3d Cir.1987) abrogated on other grounds by United States v. Wells, 519 U.S. 482, 486 n. 3, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997). It is for the jury to decide in such cases which construction the defendant placed on a question. See United States v. Slawik, 548 F.2d 75, 86 (3d Cir.1977). If, however, a question is "excessively vague, or `fundamentally ambiguous,'" the answer may not, as matter of law, form the basis of a prosecution for perjury or false statement. Ryan, 828 F.2d at 1015(citing United States v. Lighte, 782 F.2d 367, 375(2d Cir.1986)); see also United States v. Bonacorsa, 528 F.2d 1218, 1221 (2d Cir.1976) ("Absent fundamental ambiguity or impreciseness in the questioning, the meaning and truthfulness of appellant's answer was for the jury.").

While this court has not had the occasion to consider the effect of fundamental ambiguity in the specific context of providing false statements to a federal agency in violation of 18 U.S.C. § 1001, in United States v. Boone, 951 F.2d 1526 (9th Cir.1991), we addressed "ambiguity" in the analogous context of providing false statements to a grand jury or court in violation of 18 U.S.C. § 1623. A question is fundamentally ambiguous when "men of ordinary intelligence" cannot arrive at a mutual understanding of its meaning. See Boone, 951 F.2d at 1534 (quoting Lighte, 782 F.2d at 375).

Culliton describes the Form's medical history questions as fundamentally ambiguous because they are "unanswerable in any meaningful way" and "incomprehensible in the context in which they were presented." He argues that the questions "make no sense at all" because "[n]one of us can literally deny a history of dizziness, headaches, vision problems, mental problems, and the like." Underlying these descriptions is his basic contention that because the FAA questions permit different interpretations by the questioner and respondent, they are fundamentally ambiguous and cannot serve as the basis for a false statement prosecution.

However, a question is not fundamentally ambiguous simply because the questioner and respondent might have different interpretations. Rather, we must consider the context of the question and Culliton's answers, as well as other extrinsic evidence relevant to his understanding of the questions posed in the Form. See Boone, 951 F.2d at 1534 ("In evaluating... the question's ambiguity, the court must consider the context in which the question was asked...."); see also United States v. Sainz, 772 F.2d 559, 562 (9th Cir.1985) ("[W]e must look to the context of the defendant's statement to determine whether the defendant and his questioner joined issue on a matter of material fact to which the defendant knowingly uttered a false declaration."). If Culliton's responses were false as he understood the questions, "his conviction is not invalidated by the fact that his answer to the question[s] might generate a number of different interpretations." United States v. Swindall, 971 F.2d 1531, 1553 (11th Cir.1992) (internal quotation marks omitted).

Culliton does...