Virginia Lawyers Weekly VA Lawyers Weekly
Where a man charged with lying to the FBI argued that the government had induced him to lie by serving his wife with a subpoena, the district court did not abuse its discretion when it denied his request for an entrapment jury instruction. There was no evidence that the FBI subpoenaed his wife to “get him to come down” and lie to agents.
Background
A jury convicted Alexander Samuel Smith on two counts of lying to the FBI, violating 18 U.S.C. § 1001(a)(2). On appeal, Smith challenges (1) the district court’s denial of his motion to dismiss Count Two of his indictment as multiplicitous; (2) the sufficiency of the evidence supporting the jury’s verdict; (3) the district court’s allegedly prejudicial statements to the jury and its refusal to give an entrapment instruction and (4) the district court’s application of a terrorism enhancement at sentencing.
Multiplicitous
Section 1001(a)(2) prohibits “any materially false, fictitious, or fraudulent statement or representation.” Smith maintains that “both of the alleged false statements were made … in the same interview and comprise only one violation.” The thrust of this argument is that § 1001(a)(2) criminalizes a course of conduct rather than an individual false statement. Because the court finds that Congress’s intent concerning § 1001(a)(2)’s unit of prosecution is ambiguous, and nothing in this court’s case law nor the relevant legislative history serves to clarify this ambiguity, the court applies the rule of lenity and reverses the district court’s denial of Smith’s motion to dismiss Count Two.
Sufficiency
Smith claims that the district court erred in denying his motion for a judgment of acquittal on both false-statement counts. Count One charged Smith with “falsely stating to FBI Special Agents … that he had never discussed his desire or plans to travel to Syria.”
Smith first claims this conviction must be vacated because his responses to the FBI’s imprecise questions were truthful. He next argues that the government failed to prove that he acted with the requisite intent because no expert testified to the meaning of Smith’s Arabic statements. And last, Smith contends that those statements were immaterial to the FBI’s near-completed investigation. The court disagrees, finding sufficient evidence supports the jury’s verdict on Count One.
Count Two charged Smith with “falsely stating to FBI Special Agents … that he did not know that [Hilal] intended to use the buddy pass procured by [Smith] to travel and support ISIS.” Because Hilal was a fictitious person invented by the FBI, Smith says he truthfully denied knowing Hilal’s intentions, because those intentions never existed. And denying knowledge about Hilal’s intentions couldn’t have influenced the FBI’s decision-making, Smith claims, because his untruthfulness alone can’t establish materiality. The court rejects these arguments.
Trial
Smith challenges the court’s jury instruction that “the government is lawfully permitted to use decoys and deception to conceal the identity of its informants.” While Smith characterizes this instruction as misleading, he doesn’t dispute that it’s a correct statement of the law. So the court appropriately instructed the jury as much.
Second, the court stated in response to an objection, that “we have two counts of a violation of 1001, which indicate that there were … two falsehoods here.” Smith argues this statement misled the jury to believe the government had established those two falsehoods. But shortly after, the court said, “The question is, were these two lies told or not?” And the court fully instructed the jury on the elements of a § 1001(a)(2) offense, including falsity. The court finds no error here.
Next, in requesting an entrapment instruction, Smith argued that the government had induced him to lie to FBI agents by serving his wife with a subpoena. The district court declined Smith’s request, explaining that there was no evidence that the FBI subpoenaed Smith’s wife to “get him to come down” and lie to agents. The court sees no abuse of discretion.
Sentencing
Smith claims the district court erred in applying the terrorism enhancement because it failed to expressly find specific intent. Given the remand for resentencing because of the district court’s error on multiplicity, the district court can address the merits of Smith’s claim regarding the terrorism enhancement.
Affirmed in part, reversed in part, vacated and remanded for resentencing.
Concurring opinion
Heytens, J., concurring:
I write separately to note that Smith may have been able to establish a valid entrapment defense under a different theory — and to caution that similar government conduct may not be countenanced in future cases.
Dissenting opinion
Diaz, J., dissenting in part:
The district court correctly denied Smith’s motion to dismiss Count Two as multiplicitous. Because my colleagues hold otherwise, I respectfully dissent.
United States v. Smith, Case No. 20-4414, Dec. 1, 2022. 4th Cir. (per curiam), from WDNC at Charlotte (Cogburn). James Walter Kilbourne Jr. and Allie Jordan Hallmark for Appellant. Amy Elizabeth Ray for Appellee. VLW 022-2-253. 40 pp.
