U.S. v. Medina de Perez

• Decision Date: 10 September 1986
• Docket Number: No. 85-5121,85-5121
• Citation: 799 F.2d 540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Soledad MEDINA DE PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 540

799 F.2d 540

UNITED STATES of America, Plaintiff-Appellee, v. Soledad MEDINA DE PEREZ, Defendant-Appellant.

No. 85-5121.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 1986.

Decided Sept. 10, 1986.

Pat Swan, Asst. U.S. Atty., argued, Peter K. Nuncz, U.S. Atty., Pat Swan, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Cynthia G. Aaron, Asst. Federal Public Defender, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Southern District of California.

Before FLETCHER, FERGUSON and NELSON, Circuit Judges.

FLETCHER, Circuit Judge:

Soledad Medina de Perez appeals her conviction of two counts of making false statements to a federal officer, in violation of 18 U.S.C. Sec. 1001. Perez contends that her responses to questions posed by federal agents during a post-arrest interrogation are not within the reach of the statute, and alternatively, that her statements, taken as a whole, are not material within the meaning of section 1001. We agree that section 1001 does not apply to a criminal defendant's responses to investigative officers during a post-arrest interrogation, and therefore, we reverse.

I. FACTS

In January 1985, Perez drove a pickup truck with a camper shell into the primary inspection lane at the Port of Entry in San Ysidro, California. Perez's two children and her sister Erlinda Zavalza were passengers in the truck. As she entered the inspection lane, Customs Inspector Grasska noticed signs that someone had tampered with the camper shell.

Grasska then asked Perez standard questions about her citizenship. Perez declared that she was a Mexican citizen and offered the inspector her resident alien card, proving that she resided legally in the United States. Grasska then asked Perez and her passengers about any items they were bringing into the United States from Mexico. Perez told him that they had purchased two pairs of shoes, a pinata, and some Mexican candy.

The inspector asked additional questions concerning the ownership of the truck, the reason for the trip to Mexico, and Perez's employment. Perez answered that she had borrowed the truck from a friend in El Monte, California; that she was unemployed; and that the purpose of the trip was to shop for bargains in Tijuana, although they quickly had run out of money before purchasing many items.

Because Inspector Grasska thought Perez's answers suspicious, and because of the apparent tampering with the camper shell, he directed Perez to the secondary inspection area. Grasska searched Perez's purse and found $55. He then pried open the interior ceiling of the camper shell, and discovered individually wrapped packages, the contents of which he tested and which proved to be marijuana. The inspector arrested Perez, and placed her in a detaining cell.

Agent Tierney of the Drug Enforcement Administration (DEA) and Agent Baez of U.S. Customs advised Perez of her Miranda rights, and asked her if she would like to tell them about the truck. Perez said that she would. When the agents asked Perez about how the truck came into her possession, initially she claimed that her sister, Erlinda, had borrowed the truck from a person named Carmen Mendoza and that they had driven it to Tijuana to shop. Perez denied knowing about the marijuana hidden in the camper shell.

Agent Tierney left to speak with Erlinda, and when he returned to resume the interview with Perez approximately ten minutes later, she repeated the same version of her story. However, when Agent Tierney was leaving the second time, Perez requested him to return, and she admitted that previously she had not been truthful. She told Agent Tierney that a man named Jose, whose last name she did not know, had asked her to pick up his truck in Mexico and drive it across the border into the United States. She claimed that she had met Jose in a bar. Jose had offered to pay her "a decent amount" of money to drive the truck across. He told Perez that he could not do so because he was an illegal alien.

Perez explained to Agent Tierney that Jose had driven Perez, her two children, and sister to the border, and had arranged for a taxi driver to take them to downtown Tijuana, where the truck was parked. They located the truck, shopped, ate, and drove the truck back to the Port of Entry. She still denied having any knowledge of the marijuana. Perez's second version of events was apparently much closer to the truth. ¹

Perez was indicted on two counts, for importation of marijuana, in violation of 21 U.S.C. Secs. 952, 960, and 963, and possession of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). The prosecutor then filed a superseding four count indictment, charging the two original offenses, and adding two counts of making false statements to a federal officer, in violation of 18 U.S.C. Sec. 1001.

Count three charged Perez with falsely stating to Agent Tierney that she drove the pickup truck to Mexico from the United States. Count four related to Perez's statement that Erlinda had borrowed the truck from Carmen Mendoza.

At trial, the jury acquitted Perez on the marijuana importation and possession offenses, but convicted her on the false statement charges. Perez's motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) was denied. Perez timely appeals the district court's judgment.

II. DISCUSSION

18 U.S.C. Sec. 1001 provides in part:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully ... makes any false, fictitious or fraudulent statements or representations, ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.

Although this case requires that we interpret section 1001 in a new context--a post-arrest interrogation by DEA agents--we find that precedent and legislative history compel the conclusion that this statute was never intended to embrace statements made by persons in Perez's circumstances.

Courts interpreting section 1001's sweeping language have turned to legislative history for guidance. As discussed in United States v. Gilliland, 312 U.S. 86, 91-92, 61 S.Ct. 518, 521, 85 L.Ed. 598 (1941) and as recapitulated in subsequent cases, prior to amendment in 1934 the false statement portion of section 1001's predecessor statute ² penalized anyone who:

"for the purpose of obtaining or aiding to obtain the payment or approval of [false claims], or for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States, or any department thereof ... shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or use or cause to be made any false or fraudulent statements or, representations ... [40 Stat. 1015 (1918) ]"

Id. at 92, 61 S.Ct. at 521.

The 1934 amendments eliminated the "purpose" clauses, replacing the quoted portion of Sec. 1001 with the following:

"whoever 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 statements or representations ... in any matter within the jurisdiction of any department or agency of the United States ... [48 Stat. 996]"

Id. at 92-93, 61 S.Ct. at 521-22.

Thus, as amended, the statute prohibited not only those false statements that might cause pecuniary or property loss to the government, but also statements and deceptive practices that prevented government agencies from carrying out administrative or regulatory directives, thereby "perverting" their functions. Id. at 93, 61 S.Ct. at 522. By including the phrase "in any matter within the jurisdiction," Congress intended a substitution for the deleted language of purpose, making it clear that not all false statements were proscribed, but only those related to government entities. United States v. Yermian, 468 U.S. 63, 74, 104 S.Ct. 2936, 2942, 82 L.Ed.2d 53 (1984) (citing United States v. Bramblett, 348 U.S. 503, 506, 507-08, 75 S.Ct. 504, 507, 99 L.Ed. 594 (1955)).

The impetus for this statutory amendment came from the Secretary of the Interior, who, under the pre-1934 statute, had been unable to enforce effectively provisions of the National Industrial Recovery Act of 1933 prohibiting interstate transportation of "hot oil."

The statutory amendment that the Secretary sought would provide him with the means to combat the "hot oil" frauds, ³ and other departments and agencies with a weapon to eliminate similar abuses. See Bramblett, 348 U.S. at 507-08, 75 S.Ct. at 507; Gilliland, 312 U.S. at 93-95, 61 S.Ct. at 522-523; S.Rep. No. 1202, 73d Cong., 2d Sess. (1934) (amendment was designed to reach "hot oil" cases, and also cases involving contractors on Public Works Administration projects who falsified certificates as to the wages being paid); 78 Cong.Rec. 11270 (1934) ("There is nothing which permits us to make an investigation and prosecute persons who are engaged in the 'kick-back' practice. They make false returns, claiming that they paid certain amounts to their employees, when they have not done so. This bill just amends the law so as to give the Federal Government authority to deal with that class of cases ") (emphasis added).

The Supreme Court has stated that section 1001 should be construed broadly, and protects "myriad governmental activities." See United States v. Rodgers, 466 U.S. 475, 480-81, 104 S.Ct. 1942, 1946-47, 80 L.Ed.2d 492 (1984); Bryson v. United States, 396 U.S. 64, 70, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969); Bramblett, 348 U.S. at 507, 75 S.Ct. at 507. Section 1001 applies when a declarant makes false statements to a legislative entity to gain a monetary benefit, e.g., Bramblett, 348 U.S. at 504, 75 S.Ct. at 505 (former congressman violated Sec. 1001 by falsely representing that a person was entitled to compensation as his clerk); gives false information to...