USA v. Gary B. Amster

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 10, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-12139
________________________
D.C. Docket No. 8:09-cr-00263-RAL-TGW-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
GARY B. AMSTER,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 10, 2012)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
After Gary Amster lied about receiving the Congressional Medal of Honor
so that he could receive government benefits to which he was not entitled, he was

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convicted of one count of making a false statement to the government, 18 U.S.C. §
1001(a)(2), and two counts of violating the Stolen Valor Act, 18 U.S.C. § 704(b),
(c). In this appeal, Amster raises two issues: (1) whether sufficient evidence
supports his conviction for making a false statement to the government and (2)
whether his other convictions should be vacated because the Stolen Valor Act
violates the right to free speech protected by the First Amendment. We conclude
that the government presented sufficient evidence for a reasonable jury to find that
Amster made a false statement to the government. But in the light of the recent
decision of the Supreme Court in United States v. Alvarez, --- S. Ct. ----, No.
11-210, 2012 WL 2427808 (2012), that the Stolen Valor Act is facially
unconstitutional, we vacate Amster’s convictions under the Act. We affirm in part
and vacate in part.
I. BACKGROUND
Amster served in the Army during Vietnam but never saw combat. For his
service in Vietnam, Amster received the National Defense Service Medal, the
Vietnam Service Medal, and the Vietnam Campaign Medal. Most veterans who
served in Vietnam received these honors. Amster did not receive the Medal of
Honor or any other award for valor.
In 2005, Amster requested that the Department of Veterans Affairs send him
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his DD-214 form. The Department of Defense maintains DD-214 forms for
former service members. The form summarizes major data with respect to a
service member’s military history, such as honors and awards.
Amster altered his DD-214 form to reflect that he received the Medal of
Honor. On September 28, 2007, Amster recorded the falsified DD-214 form with
the circuit court clerk of Brevard County, Florida. In November 2007, Amster
sent a copy of the altered DD-214 form to Katrina Blas, an employee of Disabled
American Veterans. Additionally, on April 14, 2008, Amster called Veterans
Affairs to determine the status of a pending claim. During the call, Amster told a
representative that he had submitted paperwork to Veterans Affairs establishing
that he had received the Medal of Honor, and he asked that his records be updated.
The Veterans Affairs representative entered a note in the computer system for the
Department stating that Amster received the Medal of Honor.
The President has the power to “award, and present in the name of
Congress, a medal of honor . . . to a person who, while a member of the Army,
distinguished himself conspicuously by gallantry and intrepidity at the risk of his
life above and beyond the call of duty . . . while engaged in an action against an
enemy of the United States; [or] while engaged in military operations involving
conflict with an opposing force . . . .” 10 U.S.C. § 3741. The Medal of Honor is
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the highest award for gallantry in combat awarded by the United States. Only 161
soldiers who served in Vietnam received the Medal of Honor. Veterans Affairs
must pay Medal of Honor recipients a substantial monthly pension.
At trial, Lieutenant Colonel Stewart Stephenson testified for the
government. Stephenson is the chief of the United States Army Human Resources
Command Awards and Decorations Branch. Stephenson explained the extensive
process for awarding Medals of Honor:
Ideally, the Medal of Honor recommendation will come
from somebody with personal knowledge of the action or
the event of heroism. They will be processed up through
the war time chain of command. Ultimately, they’ll get to
our office, we will review it. From our office, it goes to the
Pentagon, through the Secretary of Defense and the Joint
Chiefs of Staff, and ultimately ends up in the White House
for Presidential approval.
Stephenson further explained that “[e]ach [armed] service Secretary has the
responsibility for maintaining a roll of all of the [Medal of Honor recipients] for
that individual service,” and that his office maintained the Medal of Honor roll for
the Army.
Collette Burgess testified that she had worked for Veterans Affairs for 13
years. Veterans Affairs employs Burgess as an “assistant service center manager,”
which Burgess described as “a management position.” Burgess explained that,
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when a veteran notifies Veterans Affairs that he received the Medal of Honor, the
Department, “search[es] the Medal of Honor roll which is maintained by the
Center for Military History in order to determine whether or not that person is, in
fact, listed on the roll of [the] Medal of Honor.” Burgess also stated that, “the
Secretary of the branch of service that granted the Medal of Honor would send [a
confirmation] to the Secretary of Veterans Affairs and we would get the
correspondence from–we would get the certificate, we would get correspondence
from the branch of service that says it’s awarded.”
With respect to Amster, Burgess testified that “[w]e looked at the Medal of
Honor roll, we reviewed the file, we reviewed the official military personnel file
that we had in our records to see if [confirmation that Amster received the Medal
of Honor] was in there, and none of that correspondence was there.” Although the
government concedes that Burgess reviewed Amster’s file after learning that
Amster was under investigation, Burgess testified that the Department would have
taken these steps as part of the regular claims process even if she had not been
notified of the investigation.
Jennifer Biglow testified that on April 14, 2008, she spoke with Amster
over the telephone and that he stated that he had received the Medal of Honor. As
a result of Amster’s misrepresentation, Biglow entered this false information into
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the computer system for Veterans Affairs. She testified that she entered “CONGR.
MEDAL of HONOR” in all capital letters because the Medal of Honor is “special,
it’s very rare,” and she wanted to ensure that anyone looking through the computer
system for the status of Amster’s pending claims would be aware of this
information.
At the close of the government’s case-in-chief, Amster moved the district
court for a judgment of acquittal. Amster maintained that the district court should
acquit him as to counts one and two for reasons not relevant to this appeal.
Amster then argued that the government failed to introduce sufficient evidence to
prove that the false statement charged in count three was material. After hearing
oral argument from both parties, the district court denied Amster’s motion. The
jury convicted Amster on all counts.
After trial, Amster timely renewed his motion for a judgment of acquittal.
Amster again asserted that the evidence was insufficient to support the materiality
element of the false statement charge. Amster then asserted for the first time that
the Stolen Valor Act was unconstitutional. The district court denied Amster’s
motion on the ground that, “[t]he evidence, when viewed in the light most
favorable to the Government, was more than sufficient to sustain the jury’s
determination to find Defendant guilty beyond a reasonable doubt as to all three
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counts of the [superseding] indictment.” The district court summarily rejected
Amster’s constitutional challenge to the Stolen Valor Act. The district court
sentenced Amster to concurrent one-year terms of probation for counts one and
two of the superseding indictment and to a five-year term of probation for count
three of the superseding indictment.
II. STANDARDS OF REVIEW
Two standards of review govern this appeal. “We review de novo [the]
district court’s denial of judgment of acquittal on sufficiency of evidence
grounds.” United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). We
consider the evidence in the light most favorable to the government, and we draw
all reasonable inferences in favor of the government. Id. “If a reasonable jury
could conclude that the evidence establishes guilt beyond a reasonable doubt, we
will affirm the verdict.” Id. “We review the constitutionality of statutes de novo.”
United States v. Phaknikone, 605 F.3d 1099, 1107 (11th Cir. 2010).
III. DISCUSSION
We divide our discussion in two parts. We first address whether sufficient
evidence supported Amster’s conviction for making a false statement. We then
address whether the Stolen Valor Act violates the right to free speech protected by
the First Amendment.
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A. Sufficient Evidence Supports Amster’s Conviction for Making a False
Statement.
Count three of the superseding indictment alleged that Amster knowingly
and willfully made a materially false statement in a matter within the jurisdiction
of the executive branch of the federal government when he told an employee of
Veterans Affairs that he had been awarded the Medal of Honor. Section
1001(a)(2) states that “whoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the Government of the United States,
knowingly and willfully . . . makes any materially false, fictitious, or fraudulent
statement . . . shall be fined under this title, imprisoned not more than 5 years . . .
or both.” 18 U.S.C. § 1001(a)(2). “To sustain a conviction [under this statute],
the government must prove (1) that a statement was made; (2) that it was false; (3)
that it was material; (4) that it was made with specific intent; and (5) that it was
within the jurisdiction of an agency of the United States.” United States v. Boffil-
Rivera, 607 F.3d 736, 740 (11th Cir. 2010).
Amster does not dispute that the government proved beyond a reasonable
doubt that he made a statement, that the statement was false, or that he made the
statement with specific intent. Amster challenges the sufficiency of the evidence
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with respect to the materiality and jurisdictional elements of section 1001. We
address the sufficiency of the evidence as to both elements in turn.
1. Amster Made A Material False Statement.
Amster argues that his false assertion to Veterans Affairs that he received
the Medal of Honor was not material because Veterans Affairs “performs its duties
according to law and is not sidetracked by any comments that a veteran might
make.” The government responds that Amster’s false statement was material
because it could have caused Veterans Affairs to waste time and resources
investigating whether Amster received the Medal of Honor.
The legal standard of materiality is well-settled:
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 make?” The
ultimate question: (c) “whether the statement was material
to the decision,” requires applying the legal standard of
materiality . . . to these historical facts.”
United States v. Gaudin, 515 U.S. 506, 512, 115 S. Ct. 2310, 2314 (1995). “The
statement must have a natural tendency to influence, or [be] capable of
influencing, the decision of the decisionmaking body to which it was addressed.”
Boffil-Rivera, 607 F.3d at 741. “The government is not required to prove that the
statement had actual influence.” Id. “The false statement must simply have the
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capacity to impair or pervert the functioning of a government agency.” Id.
(internal quotation marks omitted). “The statement does not have to be relied
upon and can be material even if it is ignored and never read.” Id. at 742 (citing
United States v. Diaz, 690 F.2d 1352, 1358 (11th Cir. 1982)). The parties do not
dispute that Amster falsely represented to Veterans Affairs that he received the
Medal of Honor.
The evidence at trial was sufficient for the jury to find that Amster’s false
statement was material. As Burgess testified, when a veteran notifies Veterans
Affairs that he received the Medal of Honor, the Department, “search[es] the
Medal of Honor roll which is maintained by the Center for Military History in
order to determine whether or not that person is, in fact, listed on the roll of [the]
Medal of Honor.” If a veteran is listed on the Medal of Honor roll, Veterans
Affairs is required to pay the veteran a substantial monthly pension. Although the
government concedes that Veterans Affairs conducted an investigation into
whether Amster had received the Medal of Honor only after it learned that Amster
was under investigation, this Court has previously held that the false statement
“does not have to be relied upon and can be material even if it is ignored and never
read.” Id.
2. Amster’s False Statement Was Within the Jurisdiction of Veterans Affairs.
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Amster contends that the evidence presented at trial was insufficient for a
reasonable jury to find that Amster’s false statement fell within the jurisdiction of
Veterans Affairs. Amster argues that Veterans Affairs lacks the authority to
determine who is entitled to the Medal of Honor. This argument fails.
“The United States Supreme Court has stated that jurisdiction within the
meaning of section 1001 should not be narrowly or technically defined.” United
States v. Herring, 916 F.2d 1543, 1547 (11th Cir. 1990) (citing United States v.
Rodgers, 466 U.S. 475, 480, 104 S. Ct. 1942, 1996 (1984)). As the Supreme
Court has explained, “the phrase ‘within the jurisdiction’ merely differentiates the
official, authorized functions of an agency or department from matters peripheral
to the business of that body.” Rodgers, 466 U.S. at 479, 104 S. Ct. at 1946.
“[Section 1001] is necessarily couched in very broad terms to encompass the
variety of deceptive practices which ingenious individuals might perpetrate upon
an increasingly complex government.” United States v. Gafyczk, 847 F.2d 685,
690 (11th Cir. 1988) (quoting United States v. Massey, 550 F.2d 300, 305 (5th
Cir. 1977)) (internal quotation marks omitted) (alteration in original).
The evidence produced at trial was sufficient for the jury to find that the
jurisdictional element was satisfied. As Burgess testified, after a veteran asserts
that he is a recipient of the Medal of Honor, Veterans Affairs must determine
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whether the assertion is valid. Based on this evidence, the jury could have
reasonably found that determining who has been awarded the Medal of Honor is
an “official, authorized function[] of [Veterans Affairs]” and is not “peripheral to
the business of that body.” Rodgers, 466 U.S. at 479, 104 S. Ct. at 1946.
B. The Stolen Valor Act is Unconstitutional.
Counts one and two of the superseding indictment alleged that Amster
violated the Stolen Valor Act when he falsely claimed on two occasions that he
had received the Medal of Honor. Amster argues that the Stolen Valor Act is
facially unconstitutional as a content-based regulation of protected speech. In the
light of the recent decision of the Supreme Court in United States v. Alvarez, --- S.
Ct. ----, No. 11-210, 2012 WL 2427808 (2012), that the Stolen Valor Act is
facially unconstitutional, we agree.
IV. CONCLUSION
We AFFIRM in part Amster’s judgment of conviction and sentence for
making a false statement to the government, and we VACATE in part Amster’s
judgment of convictions and sentences for violating the Stolen Valor Act.
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