USA v. Erick French

Filing

UNPUBLISHED OPINION FILED. [17-50092 Affirmed] Judge: PEH, Judge: EHJ, Judge: JES. Mandate issue date is 01/31/2018 for Appellant Erick French [17-50092]

Case: 17-50092

Document: 00514300029

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Date Filed: 01/09/2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-50092
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 9, 2018
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERICK FRENCH,

Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:16-CR-215-1
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Erick French challenges the sufficiency of the evidence supporting his
conviction for making a false statement to the FBI in violation of 18 U.S.C.
§ 1001. The Government was required to prove that he “(1) made a statement
(2) that was false (3) and material (4) knowingly and willfully and (5) that falls
within agency jurisdiction.” United States v. Jara-Favela, 686 F.3d 289, 301
(5th Cir. 2012). In reviewing a preserved challenge to the sufficiency of the

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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evidence, we give “substantial deference to the jury verdict, asking only
whether a rational jury could have found each essential element of the offense
beyond a reasonable doubt.” United States v. Delgado, 672 F.3d 320, 330 (5th
Cir. 2012) (en banc).
According to French, the Government failed to prove that his statement
to the FBI denying disclosure of an “investigation” of Phillip Lapinskas and
Kaleb Trdy was false. He argues that his written statement was literally true
because he placed the word “investigation” in quotes and he did not use that
word in his text messages to Phillip’s sister, Sheena Lapinskas.
The evidence established that French texted Sheena (who worked in law
enforcement) that Phillip and Trdy were “on the radar” of the Temple Police
Department’s narcotics investigations unit and that Trdy was “being hunted.”
Several law enforcement officers testified that the phrase “on the radar” meant
“under investigation.” Although French asserts that other testimony supports
construing “on the radar of” as less serious, the evidence need not “exclude
every reasonable hypothesis of innocence.” Jara-Favela, 686 F.3d at 301.
Moreover, French’s text messages to Sheena were not the only evidence
supporting a finding that he had disclosed the existence of the investigation.
Trdy and another suspect provided information to investigators that French
had “disclosed specifically [that the narcotics investigation unit] was
investigating Phillip and Kaleb.” The jury also heard evidence that French
and Phillip were friends, that French behaved suspiciously when a narcotics
investigator asked if he knew Phillip, and that the primary target of the
investigation learned of the investigation and removed all narcotics from his
home before police executed a search warrant there. Viewing the entirety of
the evidence in the light most favorable to the verdict, a rational jury could

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find beyond a reasonable doubt that French’s statement was false.

See

Delgado, 672 F.3d at 330; Jara-Favela, 686 F.3d at 301.
Next, French contends that the evidence was insufficient to prove that
his statement was material. A statement is material if it had “a natural
tendency to influence” or was “capable of influencing, the decision of the
decisionmaking body to which it was addressed.” United States v. Richardson,
676 F.3d 491, 505 (5th Cir. 2012) (internal quotation marks and citation
omitted). In considering materiality, we identify the statement that was made
and the decision the agency was trying to make. Id. at 505.
The relevant decision before the FBI was whether French had leaked the
existence of the narcotics investigation. His statement denying that he had
disclosed the investigation was capable of influencing the FBI’s decision. It is
irrelevant that the FBI ignored his denial. See Richardson, 676 F.3d at 505;
United States v. Najera Jimenez, 593 F.3d 391, 400 (5th Cir. 2010).
Accordingly, the evidence was sufficient to allow a rational jury to find that the
statement was material. See Delgado, 672 F.3d at 330.
Finally, French contends that he did not knowingly make a false
statement because his statement was true and he had no intent to deceive the
FBI.

As discussed above, the evidence was sufficient to show that the

statement was untrue. The same evidence supports a reasonable inference
that French, a police officer, understood the significance of the words he used
and that he chose his words deliberately to deceive the FBI. Further, his
omission that the conversation was via text message, as well as the content of
the text message, further support a finding of intent to deceive. Because a
rational jury could find beyond a reasonable doubt that French deliberately
and knowingly made the false statement, the evidence was sufficient to

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establish the requisite intent. See Delgado, 672 F.3d at 330; United States v.
Guzman, 781 F.2d 428, 431 (5th Cir. 1986).
AFFIRMED.

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