US v. James Fondren, Jr.

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:09-cr-00263-CMH-1 Copies to all parties and the district court/agency. [998548221].. [09-5136]

US v. James Fondren, Jr.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-5136

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES WILBUR FONDREN, JR., Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:09-cr-00263-CMH-1)

Argued:

December 9, 2010

Decided:

March 18, 2011

Before GREGORY and SHEDD, Circuit Judges, and David A. FABER, Senior United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by unpublished opinion. Senior Judge Faber wrote the opinion, in which Judge Gregory and Judge Shedd joined.

ARGUED: Lawrence Robbins, ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant. James Philip Gillis, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: William P. Baude, ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant. Neil H. MacBride, United States Attorney, W. Neil Hammerstrom, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Dockets.Justia.com

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Unpublished opinions are not binding precedent in this circuit.

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FABER, Senior District Judge: Appellant James Wilbur Fondren, Jr. was convicted of

unlawful communication of classified information by a government employee, in violation of 50 U.S.C. § 783(a), and two counts of making false statements (FBI), in to agents of of the 18 Federal § Bureau 1001. of He

Investigation

violation

U.S.C.

appeals his conviction on two grounds.

First, he contends there

was insufficient evidence to support his conviction for passing classified information because there was no evidence that he knew or had reason to believe the person to whom he communicated the information was a representative or agent of a foreign

government.

Fondren also contends that there was insufficient

evidence to support his conviction on the false statement counts because the government failed to prove the materiality of the false statements. we affirm. Finding Fondren's claims to be without merit,

I. Viewed in the light most favorable to the government, the evidence at trial established the following. In May of 1996,

Fondren retired from active duty as a Lieutenant Colonel in the United States Air Force. In 1997 or 1998, Fondren started

working as a "National Security Policy Consultant."

JA630, 851.

His first and only client was Tai Shen Kuo, a businessman with 3

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ties to Fondren's hometown of Houma, Louisiana.

Fondren first

met Kuo in the early 1990s while in Houma visiting his family for the holidays. In addition to owning and operating a restaurant in Houma, Kuo had a variety and of business interests, to the including selling of

cotton,

linter,

automobiles

People's

Republic

China (PRC or China).

Kuo also performed consulting work in In the course of his business

China for several companies.

dealings in China, Kuo came to know an individual named Lin Hong, a PRC government official. After a time, Lin began to cultivate Kuo as a source of information in the United States. Upon learning of Kuo's

association with Fondren, Lin asked Kuo to get Fondren to write "opinion papers" on various topics selected by Lin. 158. JA153-154,

Kuo concealed Lin's true affiliation with the PRC from

Fondren, instead telling Fondren that Lin worked at an "academic institution America. in Hong Kong" and was doing research on North

JA153.

According to Kuo, he believed that Fondren

would be more willing to help if Fondren thought that he was providing China. connected information Kuo to did, the to someone tell in Hong Kong, that rather was than well along JA154.

however, Chinese

Fondren and

Lin

government

would

pass

Fondren's ideas to the "Beijing central government."

Lin also used Fondren to get documents he wanted and, according 4

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to Kuo, the more confidential or sensitive the document appeared to be, the more Fondren was paid. In 1999, Fondren traveled to China with Kuo, a trip that was funded by Lin. remained Fondren's in the Fondren met Lin during this trip although he dark to regarding Lin Lin's would true identity. email After Fondren

trip

China,

sometimes

directly with his requests for information instead of using Kuo as an intermediary. In August 2001, Fondren returned to government service and began working in a civilian capacity at the Pentagon. 390-91. JA197,

There, he served as the Deputy Director of the Pacific JA391, 855. As the Deputy

Command's 1 Washington Liaison Office.

Director, Fondren was given a Top Secret security clearance like the one he had when on active duty with the Air Force. JA855.

Once Fondren returned to the Pentagon, he no longer had direct contact with Lin, but he did not give up his consulting arrangement with Kuo. JA197-98. He continued to provide Kuo Prior to beginning his job

with "opinion papers" and documents.

at the Pentagon, Fondren was paid by check and he reported the income on his tax return. Afterwards, however, Kuo paid him in

The Pacific Command, otherwise known as PACOM, is comprised of U.S. armed forces covering the Asia-Pacific region. It is based in Hawaii, but has a liaison office in the Pentagon. JA391. 5

1

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cash only and he no longer reported the income to the Internal Revenue Service. After Fondren started his Pentagon job in August 2001, Kuo, acting at Lin's that direction, Kuo was now sought to mislead Fondren at into the

believing

collecting

information

direction of a Taiwanese general.

They assumed that Fondren

would be more willing to provide sensitive information if he believed that it was going to Taiwan rather than to the PRC. JA197-02. between requests General." By On March 4, 2007, the FBI recorded a conversation Fondren for and Kuo where from Fondren acknowledged in these the

information

Kuo's

"friend

Taiwan,

JA959. own admission, there was no agreement between

Kuo's

Fondren and Kuo that Fondren would provide Kuo with classified information. JA227. In fact, in order to slowly cultivate

Fondren, Kuo actually told him, on occasion, that he did not want classified information. that Fondren would, Id. JA227-28. provide Of course, Kuo hoped him with classified

eventually,

information.

On August 10, 2007, FBI agents conducted a ruse interview of Fondren in an effort to evaluate the nature of his

relationship with Kuo.

JA308-315.

Fondren was initially told

that his assistance was being sought in connection with a

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"sensitive national security matter" pertaining to the Pacific Command. JA309. During the interview, Fondren brought up Kuo's

name and told the agents all about Kuo and his business contacts in Taiwan and China, but he never told them that he was writing papers for Kuo or that he was providing Kuo with Defense

Department publications and documents.

JA312-14.

At the outset of the interview, the FBI advised Fondren that the nature of the interview was "sensitive" and

"confidential" and that it was "a national security matter." JA314. Id. He was asked "not to discuss it outside of the room."

Two days after the FBI interview, however, Fondren sent Kuo

an email in which he told Kuo of the "strange visit . . . by two FBI guys who said that they were from Counter Intelligence." JA962. "The Fondren told Kuo what he had said to them about Kuo. only wrote when down I only talked [sic] about that information and and

agents take

didn't

notes

Vietnam

other

Southeast Asia countries. . . . The discussion seemed to be in a bizarre direction, so I wanted you to be aware of my surprise visit in case you get a surprise also!" Id.

On September 22, 2007, Kuo telephoned Fondren and asked him to write more papers, including one on the topic of bilateral meetings between PACOM and China. JA963-66. On October 29,

2007, Fondren accessed a classified PACOM report, see Gov. Ex. 101, and cut and pasted classified 7 information from it

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concerning the agenda for the meeting.

Fondren then emailed the

classified passages to himself on his classified work computer and incorporated this information, which was classified

CONFIDENTIAL, into an opinion paper that he wrote and emailed to Kuo from his home on November 3, 2007. JA204-205, 350-51. Gov. Exs. 102-1, 102-3;

It was this particular opinion paper that

was the basis of Count Five of the superseding indictment ­ the one espionage count of which Fondren was convicted at trial. On February 11, 2008, FBI agents arrested Kuo in Fondren's Annandale, Virginia residence, where he was staying as a guest. JA444. A search of Fondren's home computer uncovered a number JA451-58. The

of past email communications with Kuo and Lin.

agents also discovered Kuo in possession of a draft document entitled "The National Military Strategy of the United States of America 2008, Version 5," which Fondren had given him. JA209-11, 476-77, 977. It was marked "Pre-Decisional Working Document ­ JA978. The document had been emailed to JA979-

DDS&P Close Hold."

Fondren's work computer by a colleague at the Pentagon. 80.

On the same day Kuo was arrested, Fondren was interviewed by FBI agents made a in at his workplace of false Kuo in the Pentagon. JA444-45. to his

Fondren

number

statements with

pertaining

involvement

providing

classified

information.

Fondren falsely told the agents that everything he had written 8

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for Kuo in his opinion papers had been based on information from press and media reports and from his experience and that he was sure he had never included any classified information in any of the papers he had written for Kuo. charge in Count Six. Fondren also falsely told the agents that he had not given Kuo a draft copy of the National Military Strategy of the United States, the document that the FBI had earlier found in Kuo's possession when he was arrested in Fondren's house. JA477. JA463-64. This was the

This was the charge in Count Eight. In May 2008, in the United States District Court for the Eastern District of Virginia, Kuo pled guilty to conspiracy to communicate national defense information to a foreign government (the PRC), in violation of 18 U.S.C. § 794 (a) & (c). 2 see also Judgment in a Criminal Case, JA136-37; He was

1:08cr00179.

subsequently sentenced to a term of imprisonment of 188 months. Id. II. On August 27, 2009, a federal grand jury in Alexandria, Virginia returned an eight-count superseding indictment charging Fondren with conspiracy to act as an unregistered agent of a

The conspiracy charge to which Kuo pleaded guilty did not involve Fondren. JA136.

2

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foreign

government

(18

U.S.C.

§

951)

and

to

commit

honest

services wire fraud (18 U.S.C. §§ 1343 & 1346), in violation of 18 U.S.C. § 371 (Count One); aiding and abetting an agent of a foreign government, in violation of 18 U.S.C. §§ 951 and 2

(Count Two); unlawful communication of classified information by a government employee, in violation of 50 U.S.C. § 783(a)

(Counts Three through Five); and false statements to agents of the FBI, in violation of 18 U.S.C. § 1001 (Counts Six through Eight). A jury of trial the began on September case, 21, 2009. At the the

conclusion

government's

the

court

granted

defendant's motion for judgment of acquittal with respect to Counts One and Two of the superseding indictment but denied the motion as to the other counts. The court also denied

defendant's renewed motion and sent the remaining counts to the jury. On September 25, 2009, the jury returned its verdict The jury On January advisory

finding Fondren guilty on Counts Five, Six and Eight. acquitted Fondren on Counts Three, Four, and Seven. 22, 2010, the district court departed from the

guidelines range of 63 to 78 months and sentenced Fondren to a term of imprisonment of 36 months, to be followed by two years of supervised release.

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III. This court reviews the denial of a Rule 29 motion de novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005), cert. denied, 547 U.S. 1113 (2006). In reviewing the

sufficiency of the evidence following a conviction, the court is to construe the evidence in the light most favorable to the government, assuming its credibility, and drawing all favorable inferences from it, and will sustain the jury's verdict if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Virginia, 443 U.S. 307, 319 (1979) (emphasis in Jackson v. original);

United States v. Lomax, 293 F.3d 701, 705 (4th Cir.), cert. denied, 513 U.S. 1135 (2002). "If there is substantial evidence

to support the verdict, after viewing all of the evidence and the inferences therefrom in the light most favorable to the

Government," the court must affirm. F.3d 143, 148 (4th Cir. 1994),

United States v. Murphy, 35 denied, 513 U.S. [its] the of 1135 own jury the

cert.

(1995). credibility resolved

Furthermore,

this

court must

"cannot assume

make that

determinations contradictions

but in

all

testimony

in

favor

Government."

United States v. United Med. & Surgical Supply

Corp., 989 F.2d 1390, 1402 (4th Cir. 1993).

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IV. Fondren contends that his conviction on Count Five must be set aside because there was insufficient evidence to show that Fondren knew the person to whom he was communicating classified information government. U.S.C. § was an agent or representative of any foreign

In order to establish the offense proscribed by 50 the Government had to prove each of the

783(a), 3

following elements beyond a reasonable doubt: was an officer or or employee of the 2) United the

1) that Fondren States or some he

department

agency

thereof;

that

information

knowingly communicated was classified within the meaning of the statute; 3) that Fondren knew or had reason to believe the

3

Section 783(a) of Title 50 of the United States Code

provides, in part, that: It shall be unlawful for any officer or employee of the United States or of any department or agency thereof, . . . to communicate in any manner or by any means, to any other person whom such officer or employee knows or has reason to believe to be an agent or representative of any foreign government, any information of a kind which shall have been classified by the President (or by the head of any such department, agency, or corporation with the approval of the President) as affecting the security of the United States, knowing or having reason to know that such information has been so classified, unless such officer or employee shall have been specifically authorized by the President, or by the head of the department, agency, or corporation by which this officer or employee is employed, to make such disclosure of such information. 12

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person to whom the information was communicated was an agent or representative of a foreign government; and 4) that Fondren knew or had reason to know that the information communicated had been classified as affecting the security of the United States. is the third element on which Fondren contends there was It a

failure of proof. The term "agent or representative of a foreign government" means an individual who operates subject to the direction or control of a foreign government or official. There is no

requirement that a defendant know the identity of the particular foreign government on whose behalf the agent or representative to whom the defendant communicated classified information was acting. The government need only prove that a defendant knew or

had reason to believe that the person to whom he communicated classified information was an agent or representative of any foreign government. According to defendant, there was no evidence that he

communicated information to someone he knew or had reason to believe was an agent or representative of a foreign government. Defendant argues that there was absolutely no evidence that he knew or had reason to believe that Kuo was an agent or

representative of a foreign government and that any finding that he was is precluded by the district court's acquittal on Counts One and Two of the superseding 13 indictment. As to the

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government's theory regarding the Taiwanese general, defendant argues that this argument fails because there was no

communication with such a person. As to Count Five, the evidence at trial showed that Fondren accessed a classified computer system and copied classified

information from a PACOM End of Day Update. 350-51.

Gov. Ex. 101; JA

He then inserted this classified information into an JA204-05, 350-51, 967; is abundant that

opinion paper that he emailed to Kuo. Gov. Ex. 102-3. Furthermore, the

evidence

Fondren knew or had reason to believe that Kuo would pass the information along to the Taiwanese general. 57, 959-60. JA643-45, 949, 955-

Instead, Kuo gave the opinion paper containing the

classified information to Lin, a government official for the People's Republic of China. The evidence in the JA204-05. record shows that, once he started

working at the Pentagon, Fondren was giving information to Kuo and he thought Kuo was passing it along to a Taiwanese general. JA643-45, 949, 955-57, 959-60. Because the Taiwanese general

did not exist, Fondren argues that he cannot be convicted of espionage based upon the Taiwanese general being the "person" within the meaning of the statute because to he did not

"communicate"

classified

information

this

"person."

However, as the jury was instructed, there is no requirement that the government prove the defendant knew the identity of a 14

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particular

foreign to

government whom the

on

whose

behalf

the

agent

or

representative

defendant

communicated

classified

information was acting.

The government need only prove that the

defendant knew or had reason to believe that the person to whom he communicated classified information was an agent or

representative of any foreign government. In this case, the Taiwanese general was really a cover for Lin, the person who ultimately received the information. was the "manner" or "means" by which the information Kuo was

communicated.

So, contrary to Fondren's assertion, a "person" Furthermore, while it is arguable

did receive the information.

that Fondren was deceived about the identity of the person to whom the information was being conveyed and the foreign

government on whose behalf he was working, i.e., Lin and the PRC, the evidence is abundant that Fondren was aware that he was passing classified information to an agent or representative of a foreign government. Deception, lies, and false identities are

the hallmarks of espionage and Fondren cannot shield himself from liability by arguing that he was misled as to the

particulars of the foreign government. carve out such an exception. an email to Lin:

The statute does not

As Fondren himself acknowledged in

"The U.S. must not forget that international

spying is commonplace . . . in fact, every nation spys [sic] on every other nation. If the U.S. wants to keep secrets safe, 15

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then it must be more vigilant in its security procedures to safeguard knowledge from international theft." 32). There is also evidence to support a theory that Kuo, acting as the agent or representative of the Taiwanese general, was the "person" to whom the classified information was communicated. However, according to Fondren, when the district court granted its motion for judgment of acquittal as to Counts One and Two, it made a finding that "there just simply isn't any evidence, other than some bit of communication toward the end of the JA877 (Gov. Ex.

conspiracy, that would have given any inclination that Kuo was a representative of a foreign power." JA540. According to

Fondren, that "finding" actually and necessarily decided that Kuo was not a foreign agent or government. Fondren is wrong.

A thorough reading of the record shows that the district court's ruling on defendant's motion for judgment of acquittal was not as sweeping as Fondren would have this court believe. Fondren's acquittal on those counts is not inconsistent with a conviction on Count Five. and Two allegedly spanned The wrongdoing charged in Counts One from 1997 through February 2008

whereas the crime charged in Count Five occurred in November 2007. In addition, the court specifically qualified its ruling

by saying "other than some bit of communication toward the end of the conspiracy." Furthermore, the district court, who was in 16

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the

best

position

to

understand denied

the

scope motion

and for

basis

of

its of was

ruling,

specifically on the

Fondren's counts,

judgment there

acquittal

espionage

finding

that

sufficient evidence for those counts to go to the jury. For all these reasons, this court concludes there was

sufficient evidence for the jury to have concluded that Fondren knew the person was to an whom agent he or was communicating of classified a foreign

information government.

representative

V. Fondren also challenges his conviction on Counts Six and Eight of the superseding indictment, both of which charged him with making false statements to the FBI, in violation of 18 U.S.C. § 1001. 4 To prove a violation of § 1001, the Government must establish that "(1) the defendant made a false statement to a governmental agency or concealed a fact from it or used a false document knowing it to be false, (2) the defendant acted `knowingly or willfully,' and (3) the false statement or concealed fact was material to a matter within the jurisdiction of the agency." That statute provides that "whoever, in any matter within the jurisdiction of the executive . . . branch of the Government of the United States, knowingly and willfully . . . makes any materially false . . . statement or representation [shall be guilty of an offense]." 18 U.S.C. § 1001(a)(2).
4

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United States v. Ismail, 97 F.3d 50, 60 (4th Cir. 1996) (quoting United States v. Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993) (citation omitted)). According to defendant, the government failed to carry its burden with respect to the third element in that it failed to prove that Fondren's defendant statements contends to "the the FBI were material. no

Specifically,

government

presented

evidence of any influence that the statements could have had on the investigation, and therefore failed to prove materiality." Brief of Appellant at 32-33. The materiality This court disagrees. focuses on whether the false

inquiry

statement had a "natural tendency to influence, or was capable of influencing, the decision of the decisionmaking body to which it was addressed." (1988) (internal Kungys v. United States, 485 U.S. 759, 770 quotations and citations omitted). If a

statement has a natural tendency to influence or is capable of influencing a decision or action, "[i]t is irrelevant whether the false statement actually influenced or affected the decision making process of the agency or fact finding body." States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998). According to the Supreme Court: Deciding whether a statement is the determination of at least two of purely historical fact: (a) made?" and (b) "what decision was 18 "material" requires subsidiary questions "what statement was the agency trying to United

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make?" The ultimate question: (c) "whether the statement was material to the decision," requires applying the legal standard of materiality (quoted above) to these historical facts. United States v. Gaudin, 515 U.S. 506, 512 (1995); see also United States v. Finn, 375 F.3d 1033, 1038 (10th Cir. 2004). Under this framework, it is clear that the evidence presented by the government in this case was sufficient false for the jury to

reasonably material.

conclude

that

Fondren's

statements

were

Special Agent Robert Gibbs with the FBI served as the case agent for the investigation and testified at Fondren's trial. JA443. Special Agent Gibbs testified that the FBI had started

investigating Fondren in November 2005 and that, as the case agent, he was "the lead investigator on the case responsible for all aspects of the case, administrative, operational." 44. JA443-

Gibbs also participated in the FBI's investigation of Kuo.

JA444. Special Agent Gibbs testified that he and Special Agent Paula Paulk conducted the interview of Fondren on February 11, 2008. JA444-45. The agents initiated the interview by

informing Fondren that, just that morning, Kuo had been arrested and charged with espionage. JA446-47. Fondren was not informed JA447. Indeed,

that he was suspected of any criminal activity. according to Gibbs:

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We wanted Mr. Fondren to think that the investigation was solely focused on Mr. Kuo. We actually told him, because as he knew, Mr. Kuo had contacts all over the country, that we had actually dispatched agents truthfully nationwide to speak to Mr. Kuo's contacts. We had been given the task of talking to Mr. Fondren to determine what the nature of his relationship was with Mr. Kuo. Id. During the interview, the FBI questioned Fondren regarding Lin Hong. JA449-59. Fondren voiced his suspicions that Lin JA459. As

might be a member of the People's Liberation Army.

to the opinion papers, Fondren told the investigators that Kuo would tell him "someone in Taiwan . . . wanted to know about a certain topic, and then in response to that, [ ] Fondren would write an opinion paper." JA460. Agent Gibbs testified that,

when asked whether he ever included classified information in any of those opinion papers, Fondren stated he never provided classified information. given Kuo a copy of JA463-64. "The National Fondren also denied having Military Strategy of the

United States of America 2008, Version 5."

JA476-77.

However,

when Kuo was arrested in Fondren's home, the document was found in Kuo's room. The Id. of Fondren continued on the next day,

interview

February 12, 2008.

On that day, the FBI informed Fondren that

they had reason to believe Lin was actually associated with the PRC government and that Kuo had been providing all the

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information he received from Fondren to Lin.

JA489.

According

to Gibbs, Fondren responded that "his intuition must have been correct, that Mr. Lin was most likely PLA, People's Liberation Army, and most Id. likely in an intelligence branch or foreign

ministry."

As to the "what statement was made?" inquiry under Gaudin, the evidence showed (1) that that Fondren he had made never the following false

statements:

included

classified

information in any of the papers he wrote for Kuo (Count 6); and (2) that he had not given a draft copy of "The National Military Strategy of the United States of America 2008, Version 5" to Kuo (Count 8). The evidence was also sufficient to allow the jury

to determine what "decision" the FBI was trying to make, that is, it was in the of midst both of Kuo an and investigation Fondren. regarding the an

criminal

activity

Furthermore,

application of the legal standard of materiality to those facts leads to the reasonable conclusion that the false statements had the natural tendency to influence or were capable of influencing the FBI's investigation. A rational trier of fact could easily

conclude that false statements, given during the course of an espionage investigation, concerning the source or nature of

materials given to an alleged spy had a "natural tendency" to influence the investigation or was "capable" of doing so.

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Fondren's contention that this court's decision in United States v. Ismail, 97 F.3d 50, 60 (4th Cir. 1996), compels the opposite conclusion is without merit. In Ismail, this court

reversed a conviction under § 1001, finding that the government had failed to prove the materiality of the false statement. id. at 60-61. See

In that case, the defendant had provided a false The

name and social security number on a bank signature card.

government, however, by its own admission, offered no evidence (or argument for that matter) regarding how a false name and social security number on a bank signature card had a natural tendency to influence or was capable of influencing the FDIC. See id. at 61. This case is distinguishable from Ismail in that

there is ample circumstantial evidence from which the jury could have inferred the materiality of the false statements. We also reject Fondren's argument that the statements were not material to because the the FBI investigators asked him. already "It knew is the well

answers

questions

they

established law in this Circuit that a finding of materiality is not dependent upon whether the fact finder was actually

influenced by a defendant's false statements."

United States v.

Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998); see also United States v. Turner, 551 F.3d 657, 664 (7th Cir. 2008) (holding that defendant's "statements to the FBI probably had very little actual influence on the agents because there were already in 22

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possession of incriminating [information]" . . . but, because "statements were aimed at misdirecting the agents, . . . [it was] enough to satisfy the materiality requirement of § 1001") (emphasis in original); United States v. White, 270 F.3d 356, 365 (6th Cir. 2001) ("If the false statements are received by an agency, they may be material even if the receiving agent or agency knows that they are false."); United States v. Foxworth, 2009 WL 1582923, *3 (2d Cir. June 8, 2009) ("That the FBI knew that the statements were false when they were made is irrelevant to their materiality.") (unpublished). The Supreme Court has confirmed that the test for

materiality does not turn on whether the false statements were believed by the party to whom they were made. Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange. . . . Brogan v. United States, 522 U.S. 398, 402 (1998) (emphasis in original). Likewise, Fondren's argument that the statements could not be material given that the investigation was essentially The

complete when the statements were made misses the mark.

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Case: 09-5136

Document: 42

Date Filed: 03/18/2011

Page: 24

statements need only be capable of influencing the FBI; it is not necessary that they actually influenced the agency in this particular case. 350-52 (3d Cir. See United States v. McBane, 433 F.3d 344, 2005) (rejecting defendant's arguments that

false statements to FBI investigators were not material within the meaning of 18 U.S.C. § 1001 because investigation was

complete when statements were made). Finally, to the extent Fondren argues that his conviction under 18 U.S.C. § 1001 should be set aside because he corrected his false statements the day after they were made, that argument is without merit. correction 1001." of a "There is no safe harbor for recantation or prior false statement that violates section

United States v. Stewart, 433 F.3d 273, 318 (2d Cir.

2006); see also United States v. Beaver, 515 F.3d 730, 742 (7th Cir. 2008); United States v. Sebaggala, 256 F.3d 59, 64 (1st Cir. 2001); United States v. Meuli, 8 F.3d 1481, 1486-87 (10th Cir. 1993); United States v. Salas-Camacho, 859 F.2d 788, 791-92 (9th Cir. 1988); United States v. Fern, 696 F.2d 1269, 1275 (11th Cir. 1983).

VI. For the foregoing reasons, we affirm Fondren's convictions. AFFIRMED

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