4444444444444444444444444444444444444444444444447 United States of America v. Jennifer R. Good

Filed: June 20, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4730
(CR-02-106)
United States of America,
Plaintiff - Appellant,
versus
Jennifer R. Good,
Defendant - Appellee.
O R D E R
The court amends its opinion filed April 22, 2003, as follows:
On page 4, second full paragraph, line 3 -- the space between
the words “can” and “not” is deleted.
On page 4, second full paragraph, lines 3-4 -- the phrase “of
violation Section 1001" is corrected to read “of violation of
Section 1001.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

-- 1 of 7 --

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 02-4730
JENNIFER R. GOOD,
Defendant-Appellee.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CR-02-106)
Argued: February 25, 2003
Decided: April 22, 2003
Before WILKINS, Chief Judge, and WIDENER and
MICHAEL, Circuit Judges.
____________________________________________________________
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Chief Judge Wilkins and Judge Michael concurred.
____________________________________________________________
COUNSEL
ARGUED: Michael James Elston, Assistant United States Attorney,
Alexandria, Virginia, for Appellant. Geremy Charles Kamens, Assis-
tant Federal Public Defender, Alexandria, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Justin W. Wil-
liams, Assistant United States Attorney, Alexandria, Virginia, for
Appellant. Frank W. Dunham, Jr., Federal Public Defender, Alexan-
dria, Virginia, for Appellee.

-- 2 of 7 --

OPINION
WIDENER, Circuit Judge:
The Government appeals the district court's August 9, 2002 order
granting the defendant's motion to dismiss the indictment charging
the defendant with knowingly and willfully making a materially false,
fictitious, and fraudulent statement and representation in violation of
18 U.S.C. § 1001(a)(2). The district court dismissed the indictment on
the ground that the defendant's crime was not a part of the controlling
Federal Aviation Administration regulations on the day that she
applied for a Security Identification Display Area badge. Thus, the
false statement that she made regarding her criminal history was not
material for the purposes of Section 1001(a)(2). For the following rea-
sons, we affirm the district court's dismissal of the indictment.
I.
On September 27, 2001, the defendant applied for a Security Iden-
tification Display Area (SIDA) badge at the Norfolk International
Airport. She completed a two-page application in which she stated
that she was a courier for Tidewater Carrier. A SIDA badge provides
the holder with unescorted access to secure areas of the airport. These
badges are issued pursuant to regulations of the Federal Aviation
Administration (FAA), and are currently administered by the Trans-
portation Security Administration (TSA).1
On the application, the defendant was asked the following ques-
tion, "Have you ever been convicted or found not guilty by reason of
insanity of the following listed crimes . . . 22. Burglary, Theft, Armed
robbery, Possession or Distribution of Stolen Property . . . 26. Dishon-
esty, Fraud, or Misrepresentation. . . ." To both of these questions, the
defendant responded "no." On September 4, 2000, however, the
defendant had pleaded guilty to embezzlement, in violation of Va.
____________________________________________________________
1 Following the events of September 11, 2001, Congress created the
Transportation Security Administration to which it transferred responsi-
bility for airport security regulations, including those regarding issuance
of SIDA badges. See Aviation and Transportation Security Act, Pub. L.
No. 107-71, 115 Stat. 597 (Nov. 19, 2001).
2

-- 3 of 7 --

Code Ann. § 18.2-111, and was sentenced to 20 years in prison,
which was suspended, and was ordered to pay restitution in the
amount of $108,000. Based on this previous conviction, the defendant
was charged with knowingly and willfully making a fraudulent state-
ment in violation of 18 U.S.C. § 1001(a)(2) when she responded "no"
to questions 22 and 26.
Prior to trial, the defendant sought to dismiss the indictment on two
grounds: (1) that her statements were literally true because embezzle-
ment was not a crime listed on the application, or, in the alternative,
(2) that theft, dishonesty, fraud, and misrepresentation were not listed
among the disqualifying crimes set forth in the FAA regulations in
effect on the date that the defendant completed the application, there-
fore, her false statements were not material.2 A hearing was held on
August 5, 2002, at which time the district court found that "the defen-
dant's crime of embezzlement falls within the purview of disqualify-
ing crimes of theft, fraud, dishonesty, and misrepresentation." The
district court then dismissed the indictment per the defendant's argu-
ment: the FAA had not amended its regulations to include the disqual-
ifying crimes as those involving theft, fraud, dishonesty, and
misrepresentation until July 17, 2001, which did not go into effect
until November 14, 2001; because those crimes were not part of the
controlling FAA regulations when the defendant filled out the appli-
cation, they were not material for the purposes of Section 1001(a)(2).
On appeal, the government argues that Congress amended 49
U.S.C. § 44936 in 2000 to include additional disqualifying offenses,
including felonies involving theft, dishonesty, fraud, or misrepresen-
tation. This new amendment was effective as of December 23, 2000.
The FAA, however, did not issue a new rule pursuant to the Congres-
sional amendment, making its list conform with the statute, until
____________________________________________________________
2 On November 22, 2000, Congress amended 49 U.S.C. § 44936. The
amendments made additions to the list of prior convictions that automati-
cally disqualify a person from employment by airport operators. Among
the crimes added to the list were felonies involving theft, dishonesty,
fraud, or misrepresentation. 49 U.S.C. § 44936(b). Pursuant to these
amendments, the FAA issued a new rule on July 17, 2001, conforming
the regulations to the new Congressional amendments. This rule went
into effect on November 14, 2001. See 49 C.F.R. § 1544.229(d).
3

-- 4 of 7 --

effective date of November 14, 2001. But, the government argues, the
employment prohibitions set forth in Section 44936 were already in
effect, and thus, the defendant's statements were material, regardless
of when the FAA regulations went into effect.
II.
We review a district court's decision to grant a motion to dismiss
an indictment de novo. United States v. Brandon, 298 F.3d 307, 310
(4th Cir. 2002). Although we affirm the district court's dismissal of
the indictment, we do so on different reasoning than relied upon by
the district court. See Securities & Exch. Comm'n v. Chenery, 318
U.S. 80, 88 (1943).
The defendant argued before the district court and maintains in her
appeal that the statements she made on the application were literally
true, and therefore, that she cannot be found guilty of violation of Sec-
tion 1001. See Bronston v. United States, 409 U.S. 352, 362 (1973)
(holding that a perjury conviction cannot be supported by a given
answer that is literally true); United States v. Earp, 812 F.2d 917,
919-20 (4th Cir. 1987) (finding that a literally true statement, albeit
unresponsive, cannot support a conviction under 18 U.S.C. § 1623);
United States v. Mandanci, 729 F.2d 914, 920-21 (2d Cir. 1984) ("[A]
defendant may not be convicted under § 1001 on the basis of a state-
ment that is, although misleading, literally true."). In rendering its
decision, the district court implicitly rejected this argument, finding
that because the defendant's conviction of embezzlement fell within
the "purview of disqualifying crimes of theft, dishonesty, and misrep-
resentation," the statements made on the application were in fact
false. But because not material, the indictment should be dismissed.
We express no opinion on the reasoning of the district court. The
defendant was not indicted for falsely stating she had not violated a
crime listed in Section 44930, she was tried for answering falsely a
question on the form.
To understand how the defendant's statement was literally true, we
examine the specific charge in the indictment. The May 2002 indict-
ment charged the following:
On or about September 27, 2001, in Norfolk, Virginia. . .
the defendant, JENNIFER R. GOOD, knowingly and will-
4

-- 5 of 7 --

fully made a materially false, fictitious, and fraudulent state-
ment and representation in a manner within the jurisdiction
of the Federal Aviation Administration. . . . Specifically, the
defendant asserted on an application for a Norfolk Interna-
tional Airport, Security Identification Display Area badge
that she had not been convicted of any of the disqualifying
crimes listed on the application when in fact, as the defen-
dant then and there knew, she had been so convicted .
(emphasis added)
Thus, the alleged false statement was her response to a question on
the application.
The question on the application that the defendant answered, and
is charged by the government to be false, was, "Have you been con-
victed or found not guilty by reason of insanity of the following listed
crimes. . . ." (emphasis added). The defendant responded "no" to each
of the crimes listed on the application. There is no doubt that the
defendant had pleaded guilty to the crime of embezzlement, in viola-
tion of Va. Code Ann. § 18.2-111, which has no alternative name or
description under Virginia law. Embezzlement, however, was not one
of the crimes listed on the application. Given the wording of the ques-
tion and the crime for which the defendant was convicted, her
answers on the application were thus literally true; the defendant has
never been convicted of any of the crimes listed on the application.
The government argues that the defendant's statements were false
when she answered "no" to questions number 22 3 and 264 because
"embezzlement falls within the purview of disqualifying crimes of
theft, fraud, dishonesty, and misrepresentation." The argument goes
that the intent of the question was really more akin to the wording of
section 44936(b), i.e. an airport operator may not employ an individ-
ual if that individual was convicted of "a felony involving . . . (IV)
theft; (V) dishonesty, fraud, or misrepresentation. . . ." 49 U.S.C.
§ 44936(b). There is no question, and we do not contend otherwise,
____________________________________________________________
3 Number 22 listed the following crimes, "Burglary, Theft, Armed rob-
bery, Possession or Distribution of Stolen Property."
4 Number 26 listed the following crimes, "Dishonesty, Fraud or Mis-
representation."
5

-- 6 of 7 --

that embezzlement is a felony involving dishonesty, fraud, and misrepre-
sentation.5 Indeed, had the application been worded in a way that mir-
rored the Congressional statute listing the disqualifying offenses, the
defendant's statement might well have been false. But the defendant
was not indicted for having been hired while disqualified under the
statute, she was indicted for the statements that she made on the SIDA
application and the language of that application controls. Embezzle-
ment was not a crime listed on the application. The defendant has
never been convicted of any of the crimes listed on the application.
Therefore, her answers were literally true.
As stated, Bronston v. United States is the principal case on which
we rely. 409 U.S. at 360-62. The principle articulated in Bronston
holds true for convictions under Section 1001 and in this case today.
See Mandanci, 729 F.2d at 921 (2d Cir. 1984); United States v.
Moses, 94 F.3d 182, 188-89 (5th Cir. 1996) ("We cannot uphold a
conviction . . . where the alleged statement forming the basis of a vio-
lation of section 1001 is true on its face."); United States v. Vesaas,
586 F.2d 101, 104 (8th Cir. 1978) ("[A] prosecution for a false state-
ment under § 1001 or under the perjury statutes cannot be based on
an ambiguous question where the response may be literally and factu-
ally correct.") (citing Bronston, 409 U.S. at 366). The defendant's
response to the question was literally true, and thus, her indictment
charging a violation of Section 1001 was properly dismissed.
The judgment of the district court is accordingly
AFFIRMED.
____________________________________________________________
5 The government argues that embezzlement is also theft. Under Vir-
ginia law, however, embezzlement, false pretenses, and larceny are three
separate offenses and there is not a general "theft" statute, as there is in
most States, that encompasses both types of behavior. See Va. Code
Ann. § 18.2-95 (Michie Supp. 1998) (defining grand larceny); Va. Code
Ann. § 18.2-1111 (defining embezzlement); Va. Code Ann. § 18.2-178
(defining false pretenses). See also John Wesley Bartram, Note, Pleading
for Theft Consolidation in Virginia: Larceny, Embezzlement, False Pre-
tenses and § 19.2-284, 56 Wash. & Lee L. Rev. 249, 249 (1999) ("The
Commonwealth of Virginia has always purported to treat the three basic
theft crimes of larceny, embezzlement, and false pretenses as separate
and distinct offenses. Virginia maintains separate statutes for each
crime.") (citations omitted). As noted, unlike most States, Virginia has
no separate crime of theft. See 56 Wash. & Lee L. Rev. 251-252.
6

-- 7 of 7 --