United States v. 2020-08-20 | 19-10178 | USA V. GREGG JOHNSON | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGG JOHNSON,
Defendant-Appellant.
No. 19-10178
D.C. No.
4:19-cr-00114-JAS-EJM-1
MEMORANDUM
*
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted August 12, 2020
Pasadena, California
Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN,
**
District
Judge.

Gregg Johnson appeals his jury conviction for making false statements to a
government agency in violation of 18 U.S.C. § 1001. He argues that the district
FILED
AUG 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
* *
The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.

court erred in formulating its jury instructions and in denying his motion for
acquittal under Federal Rule of Criminal Procedure 29. We affirm.
“We review the formulation of jury instructions for abuse of discretion, but
review de novo whether those instructions correctly state the elements of the
offense and adequately cover the defendant’s theory of the case.” United States v.
Liew, 856 F.3d 585, 595–96 (9th Cir. 2017). Here, in instructing the jury on the
materiality prong of § 1001, the district court noted that the false statement “need
not have actually influenced the agency, and the agency need not rely on the
information, in fact, for it to be material.” This, as Johnson concedes, correctly
states the law. See United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir.
1998) (“The false statement need not have actually influenced the agency . . . and
the agency need not rely on the information in fact for it to be material.”) (citations
omitted). Thus, the instruction was appropriate. A district court does not commit
reversible error by giving a “legally accurate” jury instruction. United States v.
Humphries, 728 F.3d 1028, 1033 (9th Cir. 2013).
We review de novo a district court’s denial of a motion for judgment of
acquittal. United States v. Wanland, 830 F.3d 947, 952 (9th Cir. 2016). Johnson
argues that the district court erred in denying his motion because the government
2

had failed to prove materiality as a matter of law.
1
We disagree. The government
solicited testimony from two witnesses showing that his false statements about
having a college and graduate degree had a tendency to influence directly the
government agency’s decision to hire him and determine his salary. It would thus
have been inappropriate for the district court to rule that the government had failed
to prove materiality as a matter of law.
AFFIRMED.
1
Johnson also argued to the district court that the government had failed to
prove willfulness, another requirement of § 1001. Because he does not
“specifically and distinctly argue the issue” in his opening appellate brief, this
argument is waived. United States v. Marcia-Acosta, 780 F.3d 1244, 1250 (9th Cir.
2015) (quoting United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005)).
3