United States of America v. James Wilbur Fondren, Jr.

UNPUBLISHED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Affirmed by unpublished opinion.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.

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Unpublished opinions are not binding precedent in this circuit.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 to agents of the Federal Bureau of
Investigation (FBI), in violation of 18 U.S.C. § 1001. He
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. Finding Fondren’s claims to be without merit,
we affirm.
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

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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 of business interests, including selling
cotton, linter, and automobiles to the People’s Republic of
China (PRC or China). Kuo also performed consulting work in
China for several companies. In the course of his business
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. JA153-154,
158. Kuo concealed Lin’s true affiliation with the PRC from
Fondren, instead telling Fondren that Lin worked at an “academic
institution in Hong Kong” and was doing research on North
America. JA153. According to Kuo, he believed that Fondren
would be more willing to help if Fondren thought that he was
providing information to someone in Hong Kong, rather than
China. Kuo did, however, tell Fondren that Lin was well
connected to the Chinese government and would pass along
Fondren’s ideas to the “Beijing central government.” JA154.
Lin also used Fondren to get documents he wanted and, according

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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. Fondren met Lin during this trip although he
remained in the dark regarding Lin’s true identity. After
Fondren’s trip to China, Lin would sometimes email Fondren
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. JA197,
390-91. There, he served as the Deputy Director of the Pacific
Command’s1
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
with “opinion papers” and documents. Prior to beginning his job
at the Pentagon, Fondren was paid by check and he reported the
income on his tax return. Afterwards, however, Kuo paid him in
Washington Liaison Office. JA391, 855. As the Deputy
Director, Fondren was given a Top Secret security clearance like
the one he had when on active duty with the Air Force. JA855.
1 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.

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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 direction, sought to mislead Fondren into
believing that Kuo was now collecting information at the
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. On March 4, 2007, the FBI recorded a conversation
between Fondren and Kuo where Fondren acknowledged these
requests for information from Kuo’s “friend in Taiwan, the
General.” JA959.
By Kuo’s own admission, there was no agreement between
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. JA227-28. Of course, Kuo hoped
that Fondren would, eventually, provide him with classified
information. Id.
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. He was asked “not to discuss it outside of the room.”
Id. 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. Fondren told Kuo what he had said to them about Kuo.
“The agents only wrote down only [sic] that information and
didn’t take notes when I talked about Vietnam and 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 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. Gov. Exs. 102-1, 102-3;
JA204-205, 350-51. 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
of past email communications with Kuo and Lin. JA451-58. The
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 –
DDS&P Close Hold.” JA978. The document had been emailed to
Fondren’s work computer by a colleague at the Pentagon. JA979-
80.
On the same day Kuo was arrested, Fondren was interviewed
by FBI agents at his workplace in the Pentagon. JA444-45.
Fondren made a number of false statements pertaining to his
involvement in providing Kuo with classified information.
Fondren falsely told the agents that everything he had written

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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. JA463-64. This was the
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.
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
II.
JA136-37;
see also Judgment in a Criminal Case, 1:08cr00179. He was
subsequently sentenced to a term of imprisonment of 188 months.
Id.
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
2 The conspiracy charge to which Kuo pleaded guilty did not
involve Fondren. JA136.

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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 trial began on September 21, 2009. At the
conclusion of the government’s case, the court granted the
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
finding Fondren guilty on Counts Five, Six and Eight. The jury
acquitted Fondren on Counts Three, Four, and Seven. On January
22, 2010, the district court departed from the advisory
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. Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in 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. United States v. Murphy, 35
F.3d 143, 148 (4th Cir. 1994), cert. denied, 513 U.S. 1135
(1995). Furthermore, this court “cannot make [its] own
credibility determinations but must assume that the jury
resolved all contradictions in testimony in favor of the
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 was an agent or representative of any foreign
government. In order to establish the offense proscribed by 50
U.S.C. § 783(a),3
3 Section 783(a) of Title 50 of the United States Code
provides, in part, that:
the Government had to prove each of the
following elements beyond a reasonable doubt: 1) that Fondren
was an officer or employee of the United States or some
department or agency thereof; 2) that the information he
knowingly communicated was classified within the meaning of the
statute; 3) that Fondren knew or had reason to believe the
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.

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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. It
is the third element on which Fondren contends there was 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 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. Gov. Ex. 101; JA
350-51. He then inserted this classified information into an
opinion paper that he emailed to Kuo. JA204-05, 350-51, 967;
Gov. Ex. 102-3. Furthermore, the evidence is abundant that
Fondren knew or had reason to believe that Kuo would pass the
information along to the Taiwanese general. JA643-45, 949, 955-
57, 959-60. Instead, Kuo gave the opinion paper containing the
classified information to Lin, a government official for the
People’s Republic of China. JA204-05.
The evidence in the 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 he did not
“communicate” classified information to this “person.”
However, as the jury was instructed, there is no requirement
that the government prove the defendant knew the identity of a

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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 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. Kuo
was the “manner” or “means” by which the information was
communicated. So, contrary to Fondren’s assertion, a “person”
did receive the information. Furthermore, while it is arguable
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. The statute does not
carve out such an exception. As Fondren himself acknowledged in
an email to Lin: “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,

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then it must be more vigilant in its security procedures to
safeguard knowledge from international theft.” JA877 (Gov. Ex.
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
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. The wrongdoing charged in Counts One
and Two allegedly spanned 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

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the best position to understand the scope and basis of its
ruling, specifically denied Fondren’s motion for judgment of
acquittal on the espionage counts, finding that there was
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 to whom he was communicating classified
information was an agent or representative of a foreign
government.
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.”
4 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).

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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 statements to the FBI were material.
Specifically, defendant contends “the government presented no
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. This court disagrees.
The materiality inquiry focuses on whether the false
statement had a “natural tendency to influence, or was capable
of influencing, the decision of the decisionmaking body to which
it was addressed.” Kungys v. United States, 485 U.S. 759, 770
(1988) (internal 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.” United
States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998).
According to the Supreme Court:
Deciding whether a statement is “material” requires
the determination of at least two subsidiary questions
of purely historical fact: (a) “what statement was
made?” and (b) “what decision was the agency trying to

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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 for the jury to
reasonably conclude that Fondren’s false statements were
material.
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.” JA443-
44. 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
that he was suspected of any criminal activity. JA447. Indeed,
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
might be a member of the People’s Liberation Army. JA459. As
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. JA463-64. Fondren also denied having
given Kuo a copy of “The National 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. Id.
The interview of Fondren continued on the next day,
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 likely in an intelligence branch or foreign
ministry.” Id.
As to the “what statement was made?” inquiry under Gaudin,
the evidence showed that Fondren made the following false
statements: (1) that he had never 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 midst of an investigation regarding the
criminal activity of both Kuo and Fondren. Furthermore, an
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. See
id. at 60-61. In that case, the defendant had provided a false
name and social security number on a bank signature card. The
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 because the FBI investigators already knew the
answers to the questions they asked him. “It is well
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

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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
complete when the statements were made misses the mark. The

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statements need only be capable of influencing the FBI; it is
not necessary that they actually influenced the agency in this
particular case. See United States v. McBane, 433 F.3d 344,
350-52 (3d Cir. 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. “There is no safe harbor for recantation or
correction of a prior false statement that violates section
1001.” 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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