United States v. Good
| Decision Date | 20 June 2003 |
| Docket Number | No. 02-4730.,02-4730. |
| Parties | United States of America, <I>Plaintiff - Appellant,</I> v. Jennifer R. Good, <I>Defendant - Appellee.</I> |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (CR-02-106).
ARGUED:
Michael James Elston, Assistant United States Attorney, Alexandria, Virginia, for Appellant. Geremy Charles Kamens, Assistant Federal Public Defender, Alexandria, Virginia, for Appellee.
ON BRIEF:
Paul J. McNulty, United States Attorney, Justin W. Williams, Assistant United States Attorney, Alexandria, Virginia, for Appellant. Frank W. Dunham, Jr., Federal Public Defender, Alexandria, Virginia, for Appellee.
Before WILKINS, Chief Judge, and WIDENER and MICHAEL, Circuit Judges.
The Government appeals the district court's August 9, 2002 order granting the defendant's motion to dismiss the indictment charging the defendant with knowingly and willfully making a materially false, fictitious, and fraudulent statement and representation in violation of 18 U.S.C. § 1001(a)(2). The district court dismissed the indictment on the ground that the defendant's crime was not a part of the controlling Federal Aviation Administration regulations on the day that she applied for a Security Identification Display Area badge. Thus, the false statement that she made regarding her criminal history was not material for the purposes of Section 1001(a)(2). For the following reasons, we affirm the district court's dismissal of the indictment.
On September 27, 2001, the defendant applied for a Security Identification Display Area (SIDA) badge at the Norfolk International Airport. She completed a two-page application in which she stated that she was a courier for Tidewater Carrier. A SIDA badge provides the holder with unescorted access to secure areas of the airport. These badges are issued pursuant to regulations of the Federal Aviation Administration (FAA), and are currently administered by the Transportation Security Administration (TSA).1
On the application, the defendant was asked the following question, To both of these questions, the defendant responded "no." On September 4, 2000, however, the defendant had pleaded guilty to embezzlement, in violation of Va Code Ann. § 18.2-111, and was sentenced to 20 years in prison, which was suspended, and was ordered to pay restitution in the amount of $108,000. Based on this previous conviction, the defendant was charged with knowingly and willfully making a fraudulent statement in violation of 18 U.S.C. § 1001(a)(2) when she responded "no" to questions 22 and 26.
Prior to trial, the defendant sought to dismiss the indictment on two grounds: (1) that her statements were literally true because embezzlement was not a crime listed on the application, or, in the alternative, (2) that theft, dishonesty, fraud, and misrepresentation were not listed among the disqualifying crimes set forth in the FAA regulations in effect on the date that the defendant completed the application, therefore, her false statements were not material.2 A hearing was held on August 5, 2002, at which time the district court found that "the defendant's crime of embezzlement falls within the purview of disqualifying crimes of theft, fraud, dishonesty, and misrepresentation." The district court then dismissed the indictment per the defendant's argument: the FAA had not amended its regulations to include the disqualifying crimes as those involving theft, fraud, dishonesty, and misrepresentation until July 17, 2001, which did not go into effect until November 14, 2001; because those crimes were not part of the controlling FAA regulations when the defendant filled out the application, they were not material for the purposes of Section 1001(a)(2).
On appeal, the government argues that Congress amended 49 U.S.C. § 44936 in 2000 to include additional disqualifying offenses, including felonies involving theft, dishonesty, fraud, or misrepresentation. This new amendment was effective as of December 23, 2000. The FAA, however, did not issue a new rule pursuant to the Congressional amendment, making its list conform with the statute, until effective date of November 14, 2001. But, the government argues, the employment prohibitions set forth in Section 44936 were already in effect, and thus, the defendant's statements were material, regardless of when the FAA regulations went into effect.
We review a district court's decision to grant a motion to dismiss an indictment de novo. United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002). Although we affirm the district court's dismissal of the indictment, we do so on different reasoning than relied upon by the district court. See Securities & Exch. Comm'n v. Chenery, 318 U.S. 80, 88 (1943).
The defendant argued before the district court and maintains in her appeal that the statements she made on the application were literally true, and therefore, that she cannot be found guilty of violation of Section 1001. See Bronston v. United States, 409 U.S. 352, 362 (1973) (); United States v. Earp, 812 F.2d 917, 919-20 (4th Cir. 1987) (); United States v. Mandanci, 729 F.2d 914, 920-21 (2d Cir. 1984) (). In rendering its decision, the district court implicitly rejected this argument, finding that because the defendant's conviction of embezzlement fell within the "purview of disqualifying crimes of theft, dishonesty, and misrepresentation," the statements made on the application were in fact false. But because not material, the indictment should be dismissed. We express no opinion on the reasoning of the district court. The defendant was not indicted for falsely stating she had not violated a crime listed in Section 44930, she was tried for answering falsely a question on the form.
To understand how the defendant's statement was literally true, we examine the specific charge in the indictment. The May 2002 indictment charged the following:
On or about September 27, 2001, in Norfolk, Virginia. . . the defendant, JENNIFER R. GOOD, knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation in a manner within the jurisdiction of the Federal Aviation Administration. . . . Specifically, the defendant asserted on an application for a Norfolk International Airport, Security Identification Display Area badge that she had not been convicted of any of the disqualifying crimes listed on the application when in fact, as the defendant then and there knew, she had been so convicted. (emphasis added)
Thus, the alleged false statement was her response to a question on the application.
The question on the application that the defendant answered, and is charged by the government to be false, was, "Have you been convicted or found not guilty by reason of insanity of the following listed crimes. . . ." (emphasis added). The defendant responded "no" to each of the crimes listed on the application. There is no doubt that the defendant had pleaded guilty to the crime of embezzlement, in violation of Va. Code Ann. § 18.2-111, which has no alternative name or description under Virginia law. Embezzlement, however, was not one of the crimes listed on the application. Given the wording of the question and the crime for which the defendant was convicted, her answers on the application were thus literally true; the defendant has never been convicted of any of the crimes listed on the application.
The government argues that the defendant's statements were false when she answered "no" to questions number 223 and 264 because "embezzlement falls within the purview of disqualifying crimes of theft, fraud, dishonesty, and misrepresentation." The argument goes that the intent of the question was really more akin to the wording of section 44936(b), i.e. an airport operator may not employ an individual if that individual was convicted of "a felony involving . . . (IV) theft; (V) dishonesty, fraud, or misrepresentation. . . ." 49 U.S.C. § 44936(b). There is no question, and we do not contend otherwise that embezzlement is a felony involving dishonesty, fraud, and misrepresentation.5 Indeed, had the application been worded in a way that mirrored the Congressional statute listing the disqualifying offenses, the defendant's statement might well have been false. But the defendant was not indicted for having been...
To continue reading
Request your trial