US v. Phillipo

Filing

OPINION issued by David J. Barron, Appellate Judge; Bruce M. Selya, Appellate Judge and Norman H. Stahl, Appellate Judge. Published. [15-1716]

Case: 15-1716

Document: 00117122008

Page: 1

Date Filed: 02/24/2017

Entry ID: 6072003

United States Court of Appeals
For the First Circuit
No. 15-1716
UNITED STATES OF AMERICA,
Appellee,
v.
ROBEL KIDANE PHILLIPOS,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]

Before
Barron, Selya, and Stahl,
Circuit Judges.

Derege B. Demissie, with whom Demissie & Church was on brief,
for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

February 24, 2017

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BARRON, Circuit Judge.

Date Filed: 02/24/2017

Entry ID: 6072003

On October 28, 2014, Robel

Phillipos was convicted under 18 U.S.C. § 1001(a)(2) on two counts
of making false statements to federal authorities in the weeks
following the Boston Marathon bombing.
April 15, 2013.

The bombing occurred on

The statements related to Phillipos's possible

participation, three days later, in the removal and disposal of a
backpack thought to contain evidence related to the attack from
the college dormitory room of Dzhokhar Tsarnaev, one of the bombing
suspects and a friend of the defendant's at college.
was

sentenced

to

three

supervised release.

years'

imprisonment

and

Phillipos

three

years'

He now challenges his convictions on a number

of grounds that we will address, along with the facts relevant to
each, in turn.

Because we find that none of these challenges has

merit, we affirm.
I.
We start with Phillipos's challenges to the admission
into evidence of a signed confession, in which Phillipos admitted
to making the false statements that are at issue during two
informal interviews with federal agents in the two weeks following
the bombing.
of

an

Phillipos signed that confession at the conclusion

interview

with

an

agent

of

the

Federal

Bureau

of

Investigation ("FBI") on April 26, 2013.

Phillipos contends that

the

refusing

District

Court

erred

in

both

(1)

to

conduct

a

preliminary hearing on the admissibility of the confession unless
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Phillipos would agree to submit to cross-examination at that
hearing on the contents of an affidavit that he submitted regarding
the circumstances of the confession, and (2) failing to make a
determination prior to the introduction of the confession into
evidence as to whether Phillipos made the confession voluntarily.
Neither challenge warrants reversal of the convictions.
A.
We begin with the first of Phillipos's challenges to the
admissibility of the confession, which concerns the denial of his
request for an evidentiary hearing on the voluntariness of his
confession because he refused to submit to cross-examination.
Phillipos sought the hearing in connection with his motion to
suppress the confession pursuant to the Fifth Amendment's Due
Process Clause.
Phillipos acknowledged that he had been informed of his
rights, as required by Miranda v. Arizona, 384 U.S. 436 (1966),
prior

to

making

the

confession.

But

he

contended

circumstances under which he made it were coercive.
this

motion,

Phillipos

relied

solely

on

his

that

the

In support of
own

affidavit

recounting his version of those circumstances.
Specifically, Phillipos's affidavit alleged that the
interviewing

FBI

agent,

Michael

Delapena,

[Phillipos] for several hours in a small room."

"interrogated
Phillipos also

alleged that, during that time, Delapena administered a polygraph

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test, and told Phillipos that Phillipos could only answer questions
with "yes or no."

As a result, Phillipos alleged, he answered

"no" to certain questions because he could not give the truthful
answer, which would have been that he did not remember.

Phillipos

also alleged that Delapena did not offer Phillipos food; that
Delapena "got close to [Phillipos's] face" and cursed at him; and
that Delapena locked the door and told Phillipos, "[T]ell me
everything that happened.

There are wolves outside the door, you

don't want me to unlock the door."

In addition, Phillipos alleged

that, at the end of the interrogation, Delapena presented him with
a typed confession to sign, which Phillipos signed because "[he]
felt that [he] had no choice but to sign it if [he] were to leave
without being arrested."
Phillipos

argued

that

the

affidavit

he

submitted

sufficed to show that there were facts in dispute regarding the
confession's
affidavit

voluntary

conflicted

in

nature,
key

because

respects

the
with

account
the

in

the

account

the

government set forth in its opposition to his motion to suppress
the confession that it had filed.

In its filing, the government

did not dispute that Delapena questioned Phillipos for several
hours in a small room.
The government did, however, dispute other aspects of
Phillipos's account. Specifically, the government stated that,
prior

to

administering

the

polygraph,

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Delapena

explained

to

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Phillipos that the polygraph questions had to be answered with a
"yes or no," and that if Phillipos did not remember something,
Delapena would rephrase the question so that Phillipos could
truthfully answer with a "yes" or "no."
also

conflicted

with

Phillipos's

in

The government's account
the

following

respects:

Delapena did offer Phillipos food; Delapena "at no time . . .
raise[d] his voice, curse[d], or otherwise treat[ed] the defendant
discourteously"; Delapena locked the door to the interview room
only after Phillipos expressed concern that agents outside were
angry with him, and, in doing so, Delapena told Phillipos, "Don't
worry about them.
judge you."

They're outside; I'm here with you.

I don't

Finally, the government stated in its filing that

Phillipos sat with Delapena as Delapena typed up the confession,
that Delapena "conferred constantly" with Phillipos to ensure that
Delapena was accurately setting forth Phillipos's account, and
that, at several points, Phillipos asked Delapena to make specific
changes to the account, which Delapena did.
A defendant is entitled to an evidentiary hearing as to
the voluntariness of his confession only if the defendant "makes
a sufficient threshold showing that material facts are in doubt or
dispute, and that such facts cannot reliably be resolved on a paper
record."
1996).

United States v. Staula, 80 F.3d 596, 603 (1st Cir.
Applying that requirement to Phillipos's request for the

hearing, the District Court acknowledged that the allegations in

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Phillipos's affidavit, if credited, would suffice to establish a
factual dispute that would warrant a hearing.

But the District

Court went on to explain that the affidavit could suffice to
establish that factual dispute only if Phillipos agreed to be
cross-examined about the affidavit's contents at the hearing.
Otherwise, the District Court ruled, the affidavit "cannot be
tested" and would be "illusory."

And, as a result, there would be

no basis for finding that Phillipos had established the requisite
factual dispute.
We review a preserved challenge to a denial of a request
for a preliminary hearing for abuse of discretion. United States
v. Jiménez, 419 F.3d 34, 42 (1st Cir. 2005).

"Abuse of discretion

occurs 'when a relevant factor deserving of significant weight is
overlooked, or when an improper factor is accorded significant
weight, or when the court considers the appropriate mix of factors,
but commits a palpable error of judgment in calibrating the
decisional scales.'"

Id. at 43 (quoting United States v. Gilbert,

229 F.3d 15, 21 (1st Cir. 2000)). "Within this framework, an error
of law is always tantamount to an abuse of discretion."

Torres-

Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008).
Phillipos contends that the District Court abused its
discretion

by

making

his

willingness

to

submit

to

cross-

examination a condition of holding the hearing. Phillipos contends
that the condition effectively -- and impermissibly -- "[f]orc[ed]

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him to choose between" asserting his constitutional right against
self-incrimination

and

asserting

his

right

to

an

evidentiary

hearing regarding the voluntariness of his confession.

But, we do

not agree.
Phillipos points to nothing in the record besides his
affidavit that could have provided a basis for finding that he had
met his burden of demonstrating a factual dispute that would
warrant an evidentiary hearing at the time that the District Court
imposed

the

cross-examination

condition.

In

fact,

when

the

District Court asked one of Phillipos's attorneys, prior to denying
the motion for the hearing, to "[p]oint [the court] to" evidence
in the record besides Phillipos's own affidavit that would support
Phillipos's contention that his confession was not voluntary, the
attorney failed to do so.1

1

At oral argument, Phillipos contended for the first time
that there was enough evidence in the record, apart from
Phillipos's affidavit, to create a factual dispute regarding the
voluntariness of the confession so as to warrant a pre-trial
hearing. Leaving aside the allegations set forth in his affidavit,
Phillipos pointed to the evidence otherwise in the record that
Phillipos was interviewed from 10:00 A.M. until 3:00 P.M., was
interviewed in a small room, and that, before he gave his
confession, he was told, among other things, that he had failed
the polygraph test and thus would be in trouble. But Phillipos
conceded at oral argument that none of these facts were disputed
by the government at the time that he moved for the evidentiary
hearing. And "[a] hearing is required only if the movant makes a
sufficient threshold showing that material facts are in doubt or
dispute, and that such facts cannot reliably be resolved on a paper
record[] . . . which, if resolved in his favor, would entitle him
to the requested relief." Staula, 80 F.3d at 603.

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As a result, the District Court simply determined that
Phillipos failed to establish a sufficient threshold basis for
finding that there was a factual dispute over the voluntariness of
his confession because he had proffered only an untested -- and
thus illusory -- affidavit. In doing so, the District Court
followed a course that we approved, albeit in a different context,
in United States v. Baskin, 424 F.3d 1 (1st Cir. 2005), which is
a case that Phillipos fails to address.
There, a defendant relied solely on factual allegations
set forth in his own affidavit in moving on Fourth Amendment
grounds to suppress the fruits of a search.

Id. at 3.

The

defendant refused, however, to submit to cross-examination that
would allow the government to "test the truth" of the factual
allegations set forth in the affidavit; the defendant instead
invoked his Fifth Amendment privilege against self-incrimination.
Id.

In consequence, the District Court refused to credit the

affidavit and then denied the motion to suppress.

Id.

We held

that the district court did not abuse its discretion in so ruling,
because the district court was entitled to conclude that the
defendant's own untested affidavit was not in and of itself
sufficient

to

"establish

Amendment right."

any

ground

for

asserting

a

Fourth

Id.

To be sure, Baskin involved a district court's denial,
after an evidentiary hearing, of a defendant's motion to suppress

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evidence allegedly acquired in violation of the defendant's Fourth
Amendment right against an unreasonable search.

Id.

By contrast,

here we confront a defendant's motion for an evidentiary hearing
to determine whether, under the Fifth Amendment, a confession was
voluntarily made.

But, like the defendant in Baskin, Phillipos

sought to establish the requisite factual predicate for his motion
solely on the basis of his own affidavit, which he would not allow
the

government

to

test

through

cross-examination.

Nor

did

Phillipos identify any additional evidence that he would be able
to present at the hearing, other than his speculative assertions
that he might have established support for his affidavit's account
through his own cross-examination of the government agents who
conducted the interviews that led to the confession.
In light of Baskin, we see no basis for concluding that
the District Court abused its discretion in finding that the
affidavit, on its own, failed to establish the sufficient threshold
showing of a factual dispute that Phillipos was required to make.
As we have said before, "[t]he district court has considerable
discretion in determining the need for, and the utility of,
evidentiary hearings, and we will reverse the court's denial of an
evidentiary hearing in respect to a motion in a criminal case only
for manifest abuse of that discretion."
Accordingly,

this

first

challenge

confession at trial fails.

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Staula, 80 F.3d at 603.

regarding

the

use

of

the

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B.
Phillipos next contends that the District Court erred by
failing to make a finding as to the voluntariness of the confession
before admitting it into evidence.

Phillipos does not contend

that the District Court was required to find that Phillipos's
confession was involuntary, as he concedes that the record as it
then stood supported the voluntariness finding made.

Phillipos

contends only that the timing of the District Court's voluntariness
determination prejudiced Phillipos's ability to develop a complete
record in support of his contention that the confession was not
voluntarily given.
Phillipos failed to raise this objection below, and so
our review is only for plain error.
U.S. 725, 732 (1993).

United States v. Olano, 507

"Review for plain error entails four

showings: (1) that an error occurred (2) which was clear or obvious
and which not only (3) affected the defendant’s substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings."

United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001).
Although the District Court made a preliminary finding
pre-trial that the confession was voluntary, the government does
not appear to dispute that the District Court erred in failing to
make a conclusive voluntariness determination "[b]efore [the]
confession [was] received in evidence."

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18 U.S.C. § 3501(a).

See

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also Sims v. State of Georgia, 385 U.S. 538, 543–44 (1967) ("[A]
jury is not to hear a confession unless and until the trial judge
has determined that it was freely and voluntarily given."); Crane
v. Kentucky, 476 U.S. 683, 687–88 (1986) ("To assure that the
fruits of such techniques are never used to secure a conviction,
due process also requires 'that a jury [not] hear a confession
unless and until the trial judge . . . has determined that it was
freely and voluntarily given.'" (alteration in original) (quoting
Sims, 385 U.S. at 543-44)); United States v. Feliz, 794 F.3d 123,
130 (1st Cir. 2015) ("Although the judge need not make formal
findings of fact or write an opinion, his conclusion that the
confession

is

voluntary

must

appear

from

the

record

unmistakable clarity." (quoting Sims, 385 U.S. at 544)).

with

But, as

Phillipos identifies no way in which the timing of the District
Court’s

voluntariness

determination

affected

his

substantial

rights, we agree with the government that there is no plain error.
See Duarte, 246 F.3d at 60.
Phillipos argues otherwise on the ground that the late
timing of the voluntariness determination interfered with his
ability to make his case for suppressing the confession pre-trial,
as he contends that it would have been easier for him to make his
case for suppression at that time.
chance to make that pre-trial case.

But Phillipos did have the
He simply failed at that time

to establish any factual dispute with the government's account.

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Thus, the fact that the District Court made only a preliminary
voluntariness determination prior to the start of the trial did
not

prejudice

Phillipos.

Accordingly,

this

version

of

his

challenge concerning the use of the confession at trial also fails.
II.
Phillipos next contends that the District Court erred by
excluding testimony from Phillipos's proposed expert on false
confessions, Dr. Richard Leo, without first conducting a hearing
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), as to whether Dr. Leo's testimony qualified as expert
testimony.

We do not agree.
Daubert

establishes

that

before

admitting

expert

testimony, the trial court must fulfill its "gatekeeping role" by
making an independent determination that the expert's proffered
scientific knowledge is both reliable and relevant.
597.

509 U.S. at

Daubert also explains that the reliability determination

"entails a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and
of whether that reasoning or methodology properly can be applied
to the facts in issue."

Id. at 592-93.

Phillipos contends that such an assessment may be made
only after a hearing.

There is, however, no such requirement.

Phillipos identifies no precedent that supports his view.

And we

have made clear that "[t]here is no particular procedure that the

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trial court is required to follow in executing its gatekeeping
function under Daubert."

Smith v. Jenkins, 732 F.3d 51, 64 (1st

Cir. 2013) (internal quotation marks and citation omitted); see
also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)
(affirming district court's Daubert inquiry where the court did
not hold a hearing because "[t]he trial court must have the same
kind of latitude in deciding how to test an expert's reliability
. . . as it enjoys when it decides whether or not that expert's
relevant testimony is reliable" (emphasis in original)); United
States v. Nichols, 169 F.3d 1255, 1262-64 (10th Cir. 1999) (a
district court has discretion not to hold a pretrial evidentiary
reliability hearing in carrying out its gatekeeping function);
Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124 (9th Cir. 1994)
("The district court is not required to hold a . . . hearing, but
rather must merely make a determination as to the proposed expert's
qualifications.").
The only cases that Phillipos relies on in arguing
otherwise are not on point. Each held only that the district court
erred in excluding testimony under Daubert because the district
court had not considered the Daubert factors at all.

See United

States v. Hall, 93 F.3d 1337 (7th Cir. 1996); United States v.
Belyea,

159

F.

App'x

525

(4th

(unpublished).

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Cir.

2005)

(per

curiam)

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The District Court made no such mistake here.

It

provided both Phillipos and the government multiple opportunities
to explain why Dr. Leo's testimony should or should not be admitted
under Daubert.
decided

to

Moreover, when the District Court ultimately

exclude

Dr.

Leo's

testimony,

the

District

Court

explained that it had given a fair amount of thought to the issue
and provided a detailed explanation of why it was excluding the
testimony under the Daubert factors.

It is thus clear to us that

the District Court performed the gatekeeping role that Daubert
requires.
Phillipos does appear to contend, separately, that the
District Court erred in performing that gatekeeping role by ruling
that Dr. Leo's testimony was insufficiently reliable and thus must
be

excluded.

Because

Phillipos

preserved

review is for abuse of discretion.

this

challenge,

our

Smith, 732 F.3d at 64.

We

find none.
Under

Daubert,

"[t]o

determine

whether

an

expert’s

testimony is sufficiently reliable, the trial court considers
whether 'the testimony is based on sufficient facts or data';
whether 'the testimony is the product of reliable principles and
methods';

and

whether

'the

expert

has

reliably

principles and methods to the facts of the case.'"

applied

the

Id. at 64

(quoting Fed. R. Evid. 702(b-d)).

The trial court may also

consider

but

other

factors,

"including

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not

limited

to

the

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verifiability of the expert's theory or technique, the error rate
inherent

therein,

whether

the

theory

or

technique

has

been

published and/or subjected to peer review, and its level of
acceptance within the scientific community."

Samaan v. St. Joseph

Hosp., 670 F.3d 21, 31-32 (1st Cir. 2012) (internal quotation marks
and citation omitted).
In this case, the District Court considered competing
analyses of the reliability of Dr. Leo's studies and found that
there was "no indication that there is a body of reliable material
that constitutes understanding in this area," and that "it would
introduce the jury . . . to a kind of faux science to present Dr.
Leo's

testimony."

Whether

or

not

we

would

reach

the

same

conclusion, the record certainly shows that the one that the
District Court reached is reasonable.

Cf. People v. Kowalski, 821

N.W.2d 14, 31-32 (Mich. 2012) (no abuse of discretion where trial
court concluded that Dr. Leo's testimony relied on "unreliable"
sources

and

used

"unreliable

methodology"

that

"resulted

in

conclusions consistent with Leo's own preconceived beliefs rather
than testable results consistent with an objective, scientific
process"); State v. Rafay, 285 P.3d 83, 112 (Wash. Ct. App. 2012)
(no abuse of discretion where "Leo was unable to testify about any
meaningful correlation between specific interrogation methods and
false confessions or provide any method for the trier of fact to
analyze the effect of the general concepts on the reliability of

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the defendants' confessions"); Vent v. State, 67 P.3d 661, 667670 (Alaska Ct. App. 2003) (no abuse of discretion where trial
court concluded that "there was no way to quantify or test Dr.
Leo's conclusions that certain techniques might lead to false
confessions").
III.
Finally, and most significantly, Phillipos appeals the
District Court's denial of his motion for acquittal.

The jury

found Phillipos guilty of two counts of violating 18 U.S.C.
§ 1001(a)(2), which applies to those who "make[] any materially
false, fictitious, or fraudulent statement or representation" to
federal authorities.
Specifically, the jury found Phillipos guilty, under
Count

One

of

the

indictment,

of

making

the

following

false

statements to a federal agent during an interview on April 20,
2013: (1) Phillipos did not remember going to Tsarnaev's dormitory
room on the evening of April 18; and (2) Phillipos went to the
room with Dias Kadyrbayev and Azamat Tazhayakov, two friends of
his and Tsarnaev's from college, on the evening of April 18, but
no one entered the room.
The jury also found Phillipos guilty, under Count Two of
the indictment, of making the following three false statements
during an April 25, 2013 interview with a federal agent: (1)
Phillipos

had

only

entered

Tsarnaev's

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dormitory

room

on

one

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occasion on April 18, which was sometime in the afternoon when he
spoke to Tsarnaev for approximately ten minutes; (2) neither
Phillipos,

Kadyrbayev,

or

Tazhayakov

took

a

backpack

from

Tsarnaev's room on the evening of April 18; and (3) Phillipos was
not aware of Kadyrbayev or Tazhayakov removing anything from
Tsarnaev's room on the evening of April 18.
On appeal, Phillipos does not contest the falsity of
these statements.

Instead, he makes three separate arguments as

to why the denial of his motion for acquittal must be reversed.
First, he contends that there was insufficient evidence to support
a finding that these statements, even though false, were ones to
which section 1001 applies.

Second, he contends that there was

insufficient evidence to support a finding that he made the
statements "knowingly and willfully."
applied

to

his

statements,

the

Third, he contends that, as

statute

is

unconstitutionally

vague.
Reviewing the denial of Phillipos's motion for acquittal
de

novo,

eschewing

credibility

judgments,

and

drawing

all

reasonable inferences in favor of the verdict, see United States
v. Mardirosian, 602 F.3d 1, 7 (1st Cir. 2010), we conclude that a
rational jury could have found beyond a reasonable doubt that
section

1001

encompassed

statements

in

each

count

for

which

Phillipos was convicted and that Phillipos made these statements

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knowingly

and

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willfully.

We

Date Filed: 02/24/2017

also

reject

Entry ID: 6072003

Phillipos's

constitutional vagueness challenge.
A.
Phillipos relies on two separate arguments in contending
that the record does not suffice to show that the five false
statements at issue are of the type which violate section 1001.
We reject both.
1.
Phillipos first argues that the evidence at trial did
not suffice to show that his statements were "material," as section
1001 requires.

In rejecting this aspect of Phillipos's challenge,

we base our analysis on our decision in United States v. Mehanna,
735 F.3d 32 (1st Cir. 2014), cert denied, 135 S. Ct. 49 (2014).
There,

a

jury

had

convicted

the

defendant,

Tarek

Mehanna, of violating section 1001 by making false statements in
connection with an ongoing terrorism investigation to the FBI
during informal interviews not unlike the ones that are at issue
here. 735 F.3d at 41-42. The statements concerned the whereabouts
of one of Mehanna's friends, Daniel Maldonado.

Id.

When FBI

agents asked Mehanna when he had last heard from Maldonado, Mehanna
falsely told the agents that he had last heard from Maldonado two
weeks earlier and that Maldonado was living in Egypt.

Id. at 54.

In fact, however, Mehanna had spoken to Maldonado that week and

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was aware that Maldonado was in Somalia training for violent jihad.
Id.
On appeal, Mehanna argued that no reasonable jury could
find that his false statements were material, because the agents
knew the answers to their questions even before they asked them,
such that Mehanna's false statements did not in fact mislead them.
Id.

We rejected that argument.

Id. at 54-55.

We held that to be

material, a false statement "need not actually have influenced the
governmental function," id. at 54, but rather need only be of the
kind that "could have provoked governmental action,"

id. (quoting

United States v. Sebaggala, 256 F.3d 59, 65 (1st Cir. 2001)).

We

explained that "the proper inquiry is not whether the tendency to
influence bears upon a particular aspect of the investigation but,
rather, whether it would bear upon the investigation in the
abstract or in the normal course."

Id.

Applying that standard, we then concluded that a jury
reasonably could find that Mehanna's statements about Maldonado
"had a natural tendency to influence an FBI investigation into
terrorism."

Id. at 55.

In setting forth this conclusion, we

explained that the record supported a jury's finding that "the
defendant

was

plainly

attempting

to

obscure

both

Maldonado's

participation in terrorist endeavors and the telephone call in
which he and Maldonado had discussed jihad and terrorist training,"

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and that "the defendant's mendacity was undertaken for the purpose
of misdirecting the ongoing FBI investigation."
Given
Phillipos's

Mehanna,

contention

we

that

have

little

the

evidence

Id.

difficulty
is

rejecting

insufficient

to

support Phillipos's convictions under both of the false statement
counts in the indictment.

The jury found Phillipos guilty, under

both counts of the indictment, of making false statements that are
akin to the statements we found material in Mehanna.
United

States

v.

Natelli,

527

F.2d

311,

324

(2d

See, e.g.,
Cir.

1975)

(recognizing that where a single count of an indictment charges a
defendant

with

multiple

false

statements,

jury

can

convict

provided that it unanimously agrees defendant was guilty of making
at least one of the false statements charged); United States v.
Duncan, 850 F.2d 1104, 1105 (6th Cir. 1988) (same), overruled on
other grounds by Schad v. Arizona, 501 U.S. 624 (1991); United
States v. Mangieri, 694 F.2d 1270, 1279-81 (D.C. Cir. 1982) (same);
United States v. Jessee, 605 F.2d 430, 431 (9th Cir. 1979) (per
curiam) (same).
Specifically, the jury found Phillipos guilty under
Count One for stating, on April 20, that, when he returned to the
door of Tsarnaev's dormitory room on April 18 at approximately
10:00 P.M. with Kadyrbayev and Tazhayakov, no one entered the room.
And the jury found Phillipos guilty under Count Two for the
following statements on April 25:

that Phillipos was not aware of

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Kadyrbayev or Tazhayakov taking anything from Tsarnaev's dormitory
room on the evening of April 18; and that neither he nor Kadyrbayev
or Tazhayakov took a backpack from Tsarnaev's dormitory room on
the evening of April 18.
These statements were made in the midst of a federal
terrorism investigation.

And they provided false information

about whether Phillipos and his compatriots entered the bombing
suspect's dormitory room soon after the deadly bombing, went into
the suspect's backpack, and left the room with evidence in tow.
Thus, like the statements in Mehanna, these statements by Phillipos
could reasonably be deemed to have been intended to obscure the
potentially unlawful activities of the defendant's friends from
law enforcement and thereby to frustrate an ongoing terrorism
investigation.

See Mehanna, 735 F.3d at 55 ("During the critical

interview, the defendant was plainly attempting to obscure both
Maldonado's participation in terrorist endeavors and the telephone
call in which he and Maldonado had discussed jihad and terrorist
training. The misinformation imparted by the defendant thus had a
natural

propensity

to

influence

an

FBI

investigation

into

terrorist activity.").
To be sure, other individuals had given law enforcement
information about the backpack.

Phillipos thus contends that law

enforcement already knew the information that his false statements
obscured.

Mehanna makes clear, however, that such knowledge on

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the part of law enforcement is of no moment in determining whether
false statements are material.

What matters is whether the

statement in question would be material to an investigation in the
normal course, not whether the statement was actually material to
the particular investigation in fact.

And, here, a jury could

reasonably find that Phillipos's statements deprived the agents of
important corroborating information regarding where, when, and by
whom key evidence had been removed.
We recognize that Phillipos contends that Mehanna is
distinguishable because the investigation into the Boston Marathon
bombing was already complete at the time Phillipos made the false
statements. But, as the government rightly notes, it is impossible
to conclude that a jury could not reasonably find otherwise. Even
though Tsarnaev had been apprehended at the time of Phillipos's
interviews, the government still had an interest in continuing to
investigate

the

matter,

given

the

significant

public

safety

interest in determining who might have been involved in the bombing
and the government's need to develop the case for prosecution.
Thus, Phillipos's materiality-based sufficiency challenge fails.
2.
Phillipos also contends that his motion for acquittal
was

wrongly

denied

--

Mehanna's

materiality

holding

notwithstanding -- because none of the false statements at issue
are "the type of statements and conduct that [C]ongress intended

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to criminalize."

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To support this contention, Phillipos relies on

a line of cases that had established, for a time, what was known
as the "exculpatory no" doctrine.
When the cases in that line were decided, the version of
section 1001 that was in place prohibited the making of "any false,
fictitious
matters.

or

fraudulent

statements"

in

certain

government

See Brogan v. United States, 522 U.S. 398, 400 (1998)

(quoting 18 U.S.C. § 1001 (1988 ed.)). The "exculpatory no"
doctrine interpreted that version of section 1001, despite its
seemingly all-encompassing sweep, not to apply to a statement that
a defendant made to a law enforcement officer during an informal
interview

in

wrongdoing.

which

the

defendant

simply

denied

engaging

in

See, e.g., United States v. Chevoor, 526 F.2d 178,

182 (1st Cir. 1975) (holding that statements that "fall within the
'exculpatory no' category of responses . . . are outside the scope
of 'statements' within the meaning of the statute").
Phillipos contends that "Chevoor's scenario is nearly
identical" to his own, because, like the defendant in Chevoor,
Phillipos "did not fabricate a misleading story . . . or send the
[federal] agents on a wild goose chase."

Instead, he merely "gave

negative, oral responses to the questioning."

As the government

points out, however, the "exculpatory no" doctrine that we adopted
in Chevoor was overturned by the Supreme Court in Brogan, 522 U.S.
398.

In Brogan, the Supreme Court held that, by its plain terms,

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earlier

version

of

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section

Date Filed: 02/24/2017

1001

"cover[ed]

Entry ID: 6072003

'any'

false

statement -- that is, a false statement 'of whatever kind,'" and
"[t]he word 'no' in response to a question assuredly makes a
'statement.'"

Id. at 400-01 (citation omitted).

As such, the

Court held that the plain text of the statute as it then existed
applied to "exculpatory no" statements, even though, as Justice
Ginsburg observed, "[i]t is doubtful Congress intended § 1001 to
cast so large a net."

Id. at 412 (Ginsburg, J., concurring in the

judgment).
Phillipos's

only

answer

is

to

suggest

that

Brogan

overruled only "portions" of Chevoor, and that Chevoor's holding
regarding
regardless.

the

"exculpatory

no"

doctrine

remains

binding

This contention, of course, has no merit, given that

Chevoor's construction of the statute was explicitly rejected.
And Phillipos develops no argument as to how some version of the
"exculpatory no" lives on in the current version of section 1001.2

2

We note that the "exculpatory no" doctrine was, in many
circuits, based on an implied materiality requirement that we -and many of our sister circuits -- read into the earlier version
of section 1001. Brogan did away with the doctrine due to the
absence of a textual basis for it in an earlier version of section
1001. See Brogan, 522 U.S. at 400 (construing version of section
1001 that applied broadly to "any false, fictitious, or fraudulent
statement" (quoting 18 U.S.C. § 1001(a)(2) (1988 ed.))). In 1996,
however, Congress added the statute's current materiality
requirement for the express purpose of resolving the "conflict
among circuits as to whether materiality is an element" of the
false statements prohibition. H.R. Rep. No. 104-680, at 8 (1996).
Several of our sister circuits have since held, albeit with little
analysis, that Brogan precludes application of the "exculpatory
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In any event, for the same reasons that a jury could
reasonably find material the statements by Phillipos that we
discussed above about who did or did not enter the lead suspect's
dormitory room and take evidence from his backpack shortly after
the

bombing

occurred,

a

jury

also

could

reasonably

reject

Phillipos's contention that such statements were not meant "to
fabricate a story or send agents on a wild goose chase."

See

Mehanna, 735 F.3d at 55 ("[W]here a defendant's statements are
intended to misdirect government investigators, they may satisfy
the materiality requirement of section 1001 even if they stand no
chance

of

accomplishing

their

objective.").

Thus,

this

sufficiency challenge fails as well.
B.
Phillipos next trains his focus on the fact that section
1001 applies to only those false statements and representations
that an individual makes knowingly and willfully.
§ 1001(a).

18 U.S.C.

Phillipos contends that, even if he violated the

statute, the government failed to present sufficient evidence that
he did so with the requisite mens rea.

We disagree.

no" doctrine under the amended statute, notwithstanding that it
contains an express materiality requirement. See, e.g., United
States v. Watkins, 691 F.3d 841, 852 (6th Cir. 2012); United States
v. Ali, 508 F.3d 136, 153 (3d Cir. 2007).

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The Supreme Court has made clear that "in order to
establish a 'willful' violation of a statute, 'the Government must
prove that the defendant acted with knowledge that his conduct was
unlawful.'"

Bryan v. United States, 524 U.S. 184, 191-92 (quoting

Ratzlaf

United

v.

States,

510

U.S.

135,

137

(1994)).

But

"[w]illfulness can rarely be proven by direct evidence, since it
is a state of mind."

United States v. Bank of New Eng., N.A., 821

F.2d 844, 854 (1st Cir. 1987).
established
facts."

by

drawing

As such, willfulness is "usually

reasonable

inferences

from

available

Id.
With respect to the false statements in Count Two, which

Phillipos made during the April 25 interview, there would have
been no need for the jury to infer much.

The interviewing agent

testified at trial that he affirmatively told Phillipos that
Phillipos could be prosecuted for making false statements.

This

direct evidence suffices to support a jury's finding that section
1001's willfulness requirement had been met.
The government did not present similarly direct evidence
with respect to the statements at issue in Count One, which
Phillipos made during the April 20 interview.

But, the government

notes, by April 20 -- five days after the Boston Marathon bombing
occurred -- Phillipos, along with his friends, had become the focus
of intense law enforcement interest due to their relationship with

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Tsarnaev.

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And, Phillipos had already been interviewed by law

enforcement the previous day, on April 19.
A

jury

could

reasonably

infer

that

someone

who

potentially had information about the removal and destruction of
evidence in a historic terrorism investigation into a deadly attack
on a symbolic event, and who was interviewed by federal law
enforcement agents twice, would know that it was unlawful to make
false

statements

to

investigators

about

what

he

knew.

The

reasonableness of this inference is further bolstered by the fact
that, on April 20, Phillipos's interviewer told him that "now [was]
the time to tell [the government]" what he knew.

The interviewer

also asked whether "this was the story he want[ed] to go with" and
gave Phillipos the opportunity to "correct" it.

We thus reject

this challenge.
C.
Finally,

Phillipos

contends

that

section

1001

is

unconstitutionally vague as applied to the five false statements
that he was convicted of making.

He argues that, by virtue of the

express materiality requirement that section 1001 now contains, it
is not clear which statements fall under section 1001 and which do
not.

But this argument, too, is unavailing.
A criminal statute is void for vagueness only if it

"fails to provide a person of ordinary intelligence fair notice of
what is prohibited, or is so standardless that it authorizes or

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encourages seriously discriminatory enforcement."
v. Williams, 553 U.S. 285, 304 (2008).

Entry ID: 6072003

United States

Applying section 1001's

materiality standard to Phillipos's statements raises no such
concerns.

A criminal statute is not unconstitutionally vague

merely because it sets forth a standard for determining liability
that is not mathematically precise.

And here, the challenged

standard -- "materiality" -- is a familiar one.

Indeed, "[i]ts

use in the context of false statements to public officials goes
back as far as Lord Coke" in 1680.

Kungys v. United States, 485

U.S. 759, 769 (1987).
Moreover,

Mehanna

laid

out

a

test

for

determining

when

statements are material under section 1001 that used the same
language as the test that had been set forth decades before in
Kungys, which itself tracked the "uniform understanding of the
'materiality' concept" that "federal courts have long displayed."
See Kungys, 485 U.S. at 770.

Under that standard, as we have

explained, the evidence was more than sufficient to permit a
reasonable jury to find the materiality requirement was satisfied
as

to

each

count.

Thus,

we

reject

Phillipos's

constitutional vagueness challenge.
IV.
In light of the foregoing, we affirm.

- 28 -

as-applied,