United States v. Alexander Smith ( 2022 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4414
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
ALEXANDER SAMUEL SMITH, a/k/a Amir Alexander,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:17−cr−00182−MOC−DSC−1)
Argued: March 11, 2022 Decided: December 1, 2022
Before GREGORY, Chief Judge, and DIAZ and HEYTENS, Circuit Judges.
Affirmed in part, reversed in part, judgment vacated, and case remanded for resentencing
by published per curiam opinion, in which Chief Judge Gregory and Judge Heytens joined
in full. Judge Diaz joined the per curiam opinion in part. Judge Heytens wrote a concurring
opinion. Judge Diaz wrote an opinion dissenting in part.
ARGUED: James Walter Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC,
Asheville, North Carolina; Allie Jordan Hallmark, HAMILTON WINGO LLP, Dallas,
Texas, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Charles D. Swift,
CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson,
Texas, for Appellant. William T. Stetzer, Acting United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
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PER CURIAM:
A jury convicted Alexander Samuel Smith on two counts of lying to the FBI,
violating 18 U.S.C. § 1001(a)(2). The district court sentenced him to concurrent 60-month
prison terms. 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, (4) the district court’s refusal to give an entrapment instruction, and (5) the district
court’s application of a terrorism enhancement at sentencing.
As explained below, we reverse the district court’s denial of the motion to dismiss
Count Two, vacate the judgment, and remand for resentencing. We otherwise affirm.
I.
A.
Acting on an informant’s tip, the FBI began investigating Smith in the summer of
2014. Smith had asked the informant for help in traveling to Syria to participate in its civil
war. As far as the investigating agents knew, Smith wanted to join the armed conflict
between Syria’s government and various factional forces, including the Islamic State of
Iraq and Syria (“ISIS”). 1 ISIS had recently solicited Westerners to join its fight.
Agents soon learned of a connection between Smith and the Kodaimatis—a father
and son who were already under federal investigation for supporting ISIS. Smith once
1
The United States had long designated ISIS a terrorist organization.
2
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worked for the Kodaimatis and traveled to Syria with them in 2006. Based on that
connection and the informant’s tip, agents became concerned that Smith was considering
joining ISIS in Syria. So agents had the informant refer Smith to a second informant, Abu
Khalid. Khalid would act as an ISIS recruiter who could facilitate Smith’s travel plans.
Smith contacted Khalid and scheduled an in-person meeting for August 2014. At
the meeting, Smith told Khalid that he wanted to return to Syria to help defend a family
whom he had once visited. Smith explained that the family lived near a city divided
between three warring groups, including ISIS.
Khalid responded that he was helping “brothers” go to Syria to join ISIS. S.J.A. 2. 2
He asked Smith whether he “wanted to be with” the “leader of ISIS.” J.A. 665. Smith
answered, in Arabic, “inshallah.” J.A. 665. But if Smith wanted to join ISIS, Khalid said,
he would have to pledge allegiance to the group’s leader. Khalid explained that Smith
would be “going to fight . . . under command of” ISIS, asking whether Smith would accept
that. S.J.A. 8. Smith again responded in Arabic: “[n]a’am.” S.J.A. 8. Khalid later testified
that “inshallah” and “na’am” were affirmations.
For his part, Smith discussed his ability to fight, telling Khalid that he knew about
hand-to-hand combat and weapons but lacked formal training. Before leaving, Smith
mentioned that he had a passport and would be ready to travel in a few weeks. The pair
made plans to talk again.
2
Citations to the “S.J.A.” refer to the Supplemental Joint Appendix filed in this
appeal.
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Between August and November 2014, Smith and Khalid met three more times. In
their second and third meetings, Smith reaffirmed his desire to travel to Syria. Khalid told
Smith that he’d be “expected to kill for ISIS if he went to Syria,” and Smith said it would
be “no problem.” J.A. 693.
Because Smith often mentioned that he didn’t have the money to buy his airfare to
Syria, Khalid introduced Smith to Bilal, a third informant, to help him earn money for the
trip. Bilal worked with Smith on odd jobs, including construction projects and car
restorations. In the fourth meeting with Khalid, Smith offered to obtain discount airfare
(or, a “buddy pass”) for Khalid should he ever need it. Smith’s then-girlfriend worked in
customer service for an airline and could buy such passes.
Smith and Khalid didn’t meet again until March 2015. Khalid asked Smith if he’d
be able to get a buddy pass for Mohamed Hilal, a fictitious person the FBI had invented.
Khalid told Smith that Hilal was important to ISIS and planning to travel to Syria.
Using another person’s credit card, Smith and his girlfriend bought Hilal the pass.
But when the pass went unused, Smith emailed Khalid to ask what happened. Khalid
responded that Hilal got confused and didn’t use the pass. Smith then cut off all contact
with Khalid, saying he couldn’t “have anything to do with this.” S.J.A. 80.
B.
In February 2016, the FBI coordinated with the U.S. Attorney’s Office in the
Western District of North Carolina to issue a grand jury subpoena for Smith’s now-wife.
After his wife received the subpoena, Smith called the FBI and spoke with Agent Ronald
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Godfrey—one of the agents investigating him. Smith agreed to visit the FBI’s office and
“explain the circumstances about [the] buddy pass.” J.A. 537.
Godfrey, armed with knowledge of Smith’s communications with Khalid,
interrogated Smith. Godfrey asked Smith whether he spoke with Khalid about “possibly
going to Syria,” and Smith replied, “no.” S.J.A. 81 at 1:55:55–1:56:00. 3 Godfrey also
asked, “[H]ave you ever talked with anyone that you expressed to someone that you wanted
to go to Syria and fight?” J.A. 797. Smith answered, “No, I’ve told them that I wished
there was something I could do for people, but I never had any plans to go there and do
anything.” J.A. 797. And Godfrey asked if Smith had ever “talked with anyone that
[Smith] wanted to go to Syria and join ISIS.” J.A. 798. Smith responded, “No, we’ve
talked – I talk to numerous – you have to understand the Muslim community. There’s so
much stuff going on now in the Muslim community with everything.” J.A. 798. Though
Godfrey warned Smith that he could get in trouble for lying to the FBI, providing a copy
of § 1001, Smith stood firm that he never had any plan or intent to go to Syria.
Godfrey’s questioning then turned to Hilal. Godfrey asked Smith if he knew that
Hilal “was planning to use the buddy pass” to travel to Syria and join ISIS. S.J.A. 81 at
2:04:55–2:05:20. Smith said that he didn’t know “anything [Hilal] was planning to do”
and that he “didn’t know what [Hilal] had in his mind [or] what his plans were.” S.J.A. 81
at 2:05:20–2:05:30.
3
S.J.A. 81 refers to a series of sequentially timestamped video exhibits on file with
the Clerk of Court.
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C.
A grand jury indicted Smith on two counts of making a materially false statement
to a federal agent in violation of 18 U.S.C. § 1001(a)(2). Count One charged Smith with
“falsely stating to FBI Special Agents then investigating a matter involving international
terrorism that he had never discussed his desire or plans to travel to Syria.” J.A. 20. Count
Two charged him with telling the FBI “he did not know that [Hilal] intended to use the
buddy pass procured by [Smith] to travel and support ISIS.” J.A. 21. Smith moved to
dismiss Count Two as multiplicitous, but the district court denied his motion.
The case proceeded to a jury trial. The government called four witnesses: Godfrey,
Khalid, an expert on ISIS and other terrorist organizations, and an airline employee. The
jury also heard recordings of Smith’s conversations with Godfrey and Khalid. 4
At the close of the government’s case, Smith moved for a judgment of acquittal
under Federal Rule of Criminal Procedure 29. Smith argued that the government hadn’t
shown that he knowingly and willfully made a false statement or that his statements were
material to the FBI’s investigation. The district court denied Smith’s motion. Smith then
recalled Godfrey before unsuccessfully renewing his Rule 29 motion at the close of all
evidence.
Smith asked the district court to instruct the jury on an entrapment defense. He
claimed the FBI had instigated him to commit his alleged crimes through the subpoena and
4
Relevant on appeal, the court said in overruling a government objection during
Godfrey’s cross-examination, “we have two counts of a violation of 1001, which indicate
that there were . . . two falsehoods here.” J.A. 835.
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other pressure tactics the agency employed on his wife. The court declined, reasoning that
Smith hadn’t shown that the FBI induced him to lie. The court did, however, instruct the
jury on informants, explaining that “the government is lawfully permitted to use decoys
and deception to conceal the identity of its informants.” J.A. 982.
The jury returned a guilty verdict on both counts and found that each offense
involved international terrorism.
D.
Smith’s presentence investigation report first recommended a 63- to 78-month
prison term, based on a total offense level of 26 and a criminal history category of I. But
the government objected, arguing that U.S.S.G. § 3A1.4’s terrorism enhancement should
apply. The probation office agreed with the government, increasing Smith’s total offense
level to 32 and his criminal history category to VI. Smith’s Guidelines sentence became
192 months’ imprisonment—the statutory maximum.
The district court later overruled Smith’s objection to the terrorism enhancement
but varied downward, imposing two concurrent 60-month terms of imprisonment and three
years’ supervised release. The court certified that its sentence would be appropriate
regardless of the terrorism enhancement.
This appeal followed.
II.
We begin with Smith’s claim that the district court erred by declining to dismiss
Count Two as multiplicitous. “The rule against multiplicity is rooted in the Double
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Jeopardy Clause of the Fifth Amendment” and protects against “the imposition of
cumulative punishments for the same offense in a single criminal trial.” United States v.
Shrader, 675 F.3d 300, 313 (4th Cir. 2012).
To determine whether convictions are multiplicitous, courts must first identify
“[w]hat Congress has made the allowable unit of prosecution.” Id. The controlling
question is, thus, whether Congress intended the unit of prosecution under § 1001 to be a
single statement. Such an interpretation would allow a defendant to be charged separately
for each false statement made during a single interview. But, if “Congress fails to define
the criminal unit or the legislative intent in this regard is ambiguous, any ambiguity should
be resolved in favor of lenity.” United States v. Mason, 611 F.2d 49, 51 (4th Cir. 1979)
(citations omitted); see also United States v. Davis, 139 S. Ct. 2319, 2333 (2019)
(“Employing the canon as the government wishes would also sit uneasily with the rule of
lenity’s teaching that ambiguities about the breadth of a criminal statute should be resolved
in the defendant’s favor.”).
Smith maintains that “both of the alleged false statements were made . . . in the same
interview and comprise only one violation of 18 U.S.C. § 1001.” Appellant’s Br. at 38.
The thrust of this argument is that § 1001(a)(2) criminalizes a course of conduct rather than
an individual false statement. Because we find that Congress’s intent concerning
§ 1001(a)(2)’s unit of prosecution is ambiguous, we must apply the rule of lenity and find
Count Two multiplicitous.
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A.
Section 1001(a)(2) prohibits “any materially false, fictitious, or fraudulent statement
or representation.” When previously confronted with similar statutory language, we have
found Congress’s intent ambiguous.
In Mason, we held that the language of 18 U.S.C. § 922(a)(6) punishing “any false
or fictitious oral or written statement” was “ambiguous with respect to the unit of
prosecution.” United States v. Mason, 611 F.2d 49, 52 (4th Cir. 1979). Our decision in
Mason involved the Gun Control Act and the defendants’ charges included “knowingly
making a false statement in connection with the acquisition of a firearm in violation of 18
U.S.C. § 922(a)(6).” Id. at 50–51. Both defendants submitted written forms when
purchasing firearms and falsely denied having been previously convicted of a felony on
each form. Because the defendants purchased multiple firearms, and submitted one form
per firearm, they were charged with multiple counts under § 922(a)(6) based on each form.
To determine whether these counts were multiplicitous, we looked to the Supreme Court’s
analysis in United States v. Bell. Id. at 51 (citing United States v. Bell, 349 U.S. 81 (1955)).
In Bell, the Supreme Court held that the language employed in the Mann Act—
prohibiting the knowing transportation in “interstate or foreign commerce” of “any woman
or girl for the purpose of prostitution or debauchery, or for any other immoral purpose[,]”—
was ambiguous. 349 U.S. at 82. The defendant in Bell transported two women
simultaneously and in the same vehicle. Because the statutory language could be
interpreted to support finding both that Congress intended the defendant to be charged once
for each woman, or cumulatively charged once for both women, the Supreme Court found
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the statutory language ambiguous and applied the rule of lenity. Relying on Bell, we found
that the statutory language in Mason, prohibiting “any false or fictitious oral or written
statement” was also ambiguous as to the unit of prosecution. Mason, 611 F.2d at 52.
Despite the similar language at issue here, our dissenting colleague distinguishes
Mason by arguing that the Mason Court also relied on the way in which the Gun Control
Act was administered. See Dissenting Op. at 40. But Mason’s discussion of the Gun
Control Act’s administration merely provided additional support to its primary holding that
the statutory language was ambiguous under Bell. Indeed, this Court introduced that
discussion in Mason by stating, “[o]ur conclusion on this point is buttressed by the manner
in which the Gun Control Act has been administered by the Bureau of Alcohol, Tobacco
and Firearms.” Mason, 611 F.2d at 52 (emphases added). Given its prior discussion of
Bell, and the application of the rule of lenity to resolve doubt “against turning a single
transaction into multiple offenses[,]” as well as its conclusion that the statutory language
was ambiguous, the following discussion of the Act’s administration only bolstered the
Court’s holding that it had already made clear. Id. at 51.
B.
Neither the legislative history, nor our case law following Mason, serve to clarify
§ 1001(a)(2)’s ambiguity. In 1996, Congress amended the statute to cover “any . . .
statement or representation,” 18 U.S.C. § 1001(a)(2) (1996)—in the singular—as opposed
to its former version covering “any . . . statements or representations,” 18 U.S.C. § 1001(1948). This revision fails to explain Congress’s intent regarding the unit of prosecution,
because the terms “statement” and “representation” do not carry the same definition. See
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Statement, Oxford English Dictionary (3d ed. 2012), https://www.oed.com/view/Entry/189259
(last visited November 28, 2022) (defining “statement” as “[a] formal written or oral account
of facts, theories, opinions, events . . . as requested by authority”); Representation, Oxford
English Dictionary (3d ed. 2009), https://www.oed.com/view/Entry/162997 (last visited
November 28, 2022) (defining “representation” as “[t]he action of standing for, or in the
place of, a person, group, or thing, and related senses” or “[a] depiction or portrayal of a
person or thing”).
Although a statement may be a representation, a representation is not necessarily a
statement. Thus, there is no need to interpret the statute’s terms as one referring to a single
assertion, and the other to a series of assertions, in order to avoid rendering the statute’s
language superfluous. And while Congress’s revision, amending § 1001(a)(2) to cover
“any . . . statement or representation” in the singular, supports a finding that the statute is
broad enough to encompass a single interview that only included one false statement, it
does little to show that Congress unambiguously intended the unit of prosecution to be each
individual statement made during one interview. Instead, the statute remains ambiguous
because one could easily interpret § 1001(a)(2)’s unit of prosecution as one single
interview or form. Under this view, the statute could be interpreted as characterizing
Smith’s entire interview as a “statement or representation,” sufficient to support one count
of making a false statement in violation of § 1001(a)(2).
In its attempt to declare § 1001(a)(2) unambiguous, the dissent relies upon an
unpublished case decided after Mason. See Dissenting Op. at 38–39. In Jameson, we
upheld the defendant’s four convictions under § 1001(a)(2) and determined that “each
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nonidentical false statement made may be charged as a separate violation of section 1001.”
See United States v. Jameson, Nos. 91-5848, 91-5849, 91-5876, 1992 WL 180146, at *9
(4th Cir. July 29, 1992) (per curiam). The defendant’s false statements there stemmed from
two separate forms, one form submitted on September 15, 1987, and the second form
submitted on September 7, 1988. On both forms, the defendant falsely denied (1) having
any additional “creditors other than those providing conventional loans,” and (2)
possessing “interests in real property other than his personal residence.” Id.Declining to find his charges as multiplicitous, we reasoned that the questions on
the two forms were not identical because they concerned the defendant’s debt and property
as of two different dates. We also found that the defendant could be charged with two
counts per form because the government had to prove different facts for each count. 5 While
Smith’s challenge is more difficult to square with our unpublished decision in Jameson,
the differing facts that the government had to prove to sustain each charge there render
Jameson distinguishable from this case.
Unlike the differing types of documents that would be required to prove an
individual’s debt and specific property interests, the government proved Counts One and
5
For support, we discussed the Supreme Court’s decision in United States v.
Blockburger, holding that “the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other
does not.” 284 U.S. 299, 304 (1932). The defendant in Blockburger, however, was charged
under two “distinct statutory provisions” and “[e]ach of the offenses created requires proof
of a different element.” Id. at 304. Because the defendant’s one sale violated two sections
of the same act, the Court upheld the defendant’s judgment. Id. at 304. See United States
v. Mier-Garces, 976 F.3d 1003, 1012–13 (10th Cir. 2020) (explaining that the Blockburger
test applies “[w]hen the government charges a defendant under separate statutes for the
same conduct”).
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Two by solely relying on the communications between its informants and Smith. The
government had to prove that Smith “discussed his desire and plans to travel to Syria in
support of ISIS with The Source[,]” J.A. 20, under Count One, and that Smith “had
discussed with The Source the travel plans of a person that he [SMITH] believed to be a
person who wanted to travel and assist ISIS[,]” J.A. 21, under Count Two. Thus, the FBI’s
evidence for both counts depended on its informants’ conversations with Smith. It is also
worth noting that while some of our sister circuits have defined § 1001(a)(2)’s unit of
prosecution as a single statement, none of them have done so in a case where the
government’s evidence was so similar in substance. See United States v. Meuli, 8 F.3d
1481, 1485–86 (10th Cir. 1993) (involving a defendant who made false statements on
multiple forms); United States v. Segall, 833 F.2d 144, 146–48 (9th Cir. 1987) (affirming
the defendant’s conviction on three counts of making a false statements on two separate
dates); United States v. Guzman, 781 F.2d 428, 432–33 (5th Cir. 1986) (affirming the
defendant’s conviction on two counts under § 1001 for falsely representing her name on
two separate documents).
In sum, we find ambiguity in Congress’s intended unit of prosecution in
§ 1001(a)(2) following Mason. Because nothing in our case law nor the relevant legislative
history serves to clarify this ambiguity, we apply the rule of lenity and reverse the district
court’s denial of Smith’s motion to dismiss Count Two. See Santos, 553 U.S. at 519 (“We
interpret ambiguous criminal statutes in favor of defendants, not prosecutors.”); see also
Bell, 349 U.S. at 81 (“When Congress leaves to the Judiciary the task of imputing to
Congress an undeclared will, the ambiguity should be resolved in favor of lenity.”).
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III.
We turn next to Smith’s challenge to the sufficiency of the evidence. Smith claims
that the district court erred in denying his motion for a judgment of acquittal on both false-
statement counts. We disagree.
Rule 29 requires a trial court, on the defendant’s motion, to “enter a judgment of
acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed.
R. Crim. P. 29(a). We review the district court’s denial of a Rule 29 motion de novo.
United States v. Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). In doing so, “we view the
evidence in the light most favorable to the prosecution and decide whether substantial
evidence . . . supports the verdict.” United States v. Walker, 32 F.4th 377, 397 (4th Cir.
2022) (cleaned up). “Substantial evidence” is evidence that a reasonable fact-finder could
accept as adequate and sufficient to support a defendant’s guilt beyond a reasonable doubt.
See id. Defendants bear a “heavy burden” under this standard. Id. (cleaned up).
“A § 1001 false-statement conviction requires (1) a false statement in a matter
involving a government agency, (2) made knowingly [and] willfully, that is (3) material to
the matter within the agency’s jurisdiction.” United States v. Legins, 34 F.4th 304, 313
(4th Cir. 2022). Smith’s challenge to his Count One conviction spans each element. On
Count Two, he contests only falsity and materiality. We address each count in turn.
A.
On Count One, Smith contends that the government failed to prove he knowingly
made a materially false statement. Count One charged him with “falsely stating to FBI
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Special Agents . . . that he had never discussed his desire or plans to travel to Syria.” J.A.
20.
Smith first claims we must vacate this conviction 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, even if he knowingly and willfully made
false statements, those statements were immaterial to the FBI’s near-completed
investigation. We disagree, finding sufficient evidence supports the jury’s verdict on
Count One.
1.
Smith’s challenge to falsity revolves around Godfrey’s questions, which are
reproduced in the indictment:
1. “[H]ave you ever talked with anyone about . . . that you expressed to
someone that you want to go to Syria and fight?”
2. “[H]ave you ever . . . talked with anyone that you wanted to go to Syria
and join ISIS?”
J.A. 18. According to the indictment, Smith’s responses to these questions were false given
his discussions with Khalid about traveling to Syria.
Smith insists he truthfully answered both questions in the negative. The first
question, Smith says, is phrased so ambiguously that he interpreted it to ask whether he
had talked with anyone about having expressed to anyone else that he wanted to go to Syria.
And the second question is “similarly imprecise,” Smith claims, because it asks “whether
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[he had] engaged in a conversation with a person, [whom he] thought should go to Syria
and join ISIS.” Appellant’s Br. at 47.
Smith’s contentions turn on the literal-truth defense set forth in Bronston v. United
States, 409 U.S. 352 (1973). In Bronston, the Supreme Court held that an individual isn’t
guilty of perjury when his allegedly false answer was “literally true but not responsive to
the question asked and arguably misleading by negative implication.” 409 U.S. at 353.
Underlying this doctrine is the notion that “[t]he burden is on the questioner to pin
the witness down to the specific object of the questioner’s inquiry.” Id. at 360. And if a
response is evasive, it’s the questioner’s duty “to spot that evasion and to flush out the
whole truth.” United States v. Earp, 812 F.2d 917, 919 (4th Cir. 1987) (cleaned up).
Though Bronston dealt with a perjury charge, we’ve since applied its holding to § 1001
offenses. See United States v. Good, 326 F.3d 589, 592 (4th Cir. 2003).
But as we’ve explained, the literal-truth defense is “a narrow one.” United States v.
Sarwari, 669 F.3d 401, 406 (4th Cir. 2012). “It applies only where a defendant’s allegedly
false statements were undisputedly literally true.” Id. (cleaned up). And fatally for Smith,
it doesn’t “apply in cases in which the focus is on the ambiguity of the question asked. Nor
does it apply to an answer that would be true on one construction of an arguably ambiguous
question but false on another.” Id. (cleaned up).
That Smith can construe either question as ambiguous therefore doesn’t help him.
There’s no doubt Godfrey could have chosen his words more carefully. Still, Godfrey
testified that he asked Smith “about whether or not [Smith] had expressed any plans or
desire, intentions[,] or aspirations to go to Syria,” which Smith denied. J.A. 799. A
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reasonable jury could conclude that (1) Godfrey intended to ask Smith about his discussion
of his personal desire to travel to Syria, and (2) Smith understood as much. See United
States v. Purpera, 844 F. App’x 614, 632 (4th Cir. 2021) (finding an investigator’s
testimony sufficient for a reasonable jury to resolve against the defendant an “ambiguity
surrounding the precise nature of [the investigator’s] question”).
Thus, Smith’s response to the second question is enough to support falsity. When
Godfrey asked whether Smith had ever “talked with anyone that [he] wanted to go to Syria
and join ISIS,” Smith replied, “No, we’ve talked – I talk to numerous – you have to
understand the Muslim community. There’s so much stuff going on now in the Muslim
community with everything.” J.A. 798.
Smith answered Godfrey’s second question with “[n]o.” The rest of his response,
even if true, doesn’t retract his initial denial. A rational jury could thus find Smith falsely
denied discussing his desire to travel to Syria.
Even so, Smith suggests that his answer to Godfrey’s first question, under any
construction, was either nonresponsive or true. While we need not reach this contention,
we reject it all the same.
Smith says his response to the first question was literally true because he told
Godfrey he “never had any plans to go [to Syria] and do anything.” Appellant’s Br. at 46
(cleaned up) (emphasis added). Smith contends that, when he said he had no “plans” to go
to Syria, he meant he had no “detailed proposal” to go, rather than no “intention or
decision” to do so. Appellant’s Br. at 46 (quoting Oxford Dictionary of English (3d ed.
2010)). He argues that his intended definition of “plans” makes his response literally true.
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Smith relies on our precedent in United States v. Hairston, 46 F.3d 361 (4th Cir.
1995). There, we reversed a perjury conviction where the context made it “obvious” that
a defendant used a different definition of “prepare” and “preparation” than that employed
by the prosecutor, rendering her statements literally true. Id. at 375–76. We face no such
quandary here.
First, Godfrey didn’t use the word “plans,” so there was no disconnect between the
question and answer as in Hairston. Second, it’s not obvious which definition Smith
intended. And third, even accepting Smith’s premise, the jury had substantial evidence to
reasonably conclude that Smith’s “plans” to go to Syria constituted a “detailed proposal.”
After all, Smith discussed with Khalid his desire to go to Syria and his idea to finance that
trip by working with Bilal. So a reasonable jury could find Smith lied when answering
Godfrey’s first question.
2.
Smith next argues that the government failed to prove he knowingly and willfully
made false statements. In conversations with Khalid discussing travel to Syria and joining
ISIS, Smith often responded in Arabic, saying “inshallah” or “na’am.” Khalid, fluent in
Arabic, told the jury that he understood those words as affirmations to his questions.
Smith now contends that because the government didn’t present expert testimony
on Arabic, the jury didn’t have “sufficient evidence to interpret” his responses. Appellant’s
Br. at 50. So, says Smith, the jury couldn’t conclude what he “actually meant when he said
[those] words.” Id.18
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The problem for Smith is that the jury heard sufficient evidence of his conversations
with Khalid in English to conclude that Smith knowingly and willfully lied to the FBI. For
example, when they first met, Smith told Khalid, “There is a particular family in Syria . . .
that I went there one time before to visit. . . . I want to go back to them.” S.J.A. 1–2. And
in their third meeting, Khalid asked Smith, “[W]hat’s your plans [sic] for Syria,” to which
Smith responded, “I need to get the money to get there . . . and that’s what we’re working
on so I can have the money to get there.” S.J.A. 37. To that end, the jury heard that Smith
worked with Bilal to earn money for his trip.
We thus find that the government presented enough direct and circumstantial
evidence for a reasonable jury to conclude that Smith acted with the requisite intent when
he denied ever discussing his desire or plans to travel to Syria. See United States v. Dennis,
19 F.4th 656, 665 (4th Cir. 2021) (In reviewing the denial of a Rule 29 motion, “[w]e must
consider both circumstantial as well as direct evidence.”).
3.
Smith also challenges the materiality of his untruthful responses. According to
Smith, denying his travel plans couldn’t have affected the FBI’s actions. Smith says his
interview was a “Hail Mary” at the end of the investigation and that the FBI already knew
the answers to its questions. Appellant’s Br. at 42. We reject this contention.
“A statement is material if it has a natural tendency to influence, or is capable of
influencing, the decision-making body to which it was addressed.” United States v.
Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998) (cleaned up). The government “must prove
materiality by reference to the particular government agency or public officials that were
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targeted”—here, the FBI. United States v. Raza, 876 F.3d 604, 617 (4th Cir. 2017). This
inquiry is ultimately “an objective test.” United States v. Hamilton, 699 F.3d 356, 362 (4th
Cir. 2012). It’s irrelevant “whether the false statement actually influenced the [FBI’s]
decision-making process.” Id. (emphasis added).
Smith’s denials of his travel plans to Syria were material to the FBI’s investigation.
As Godfrey told the jury, the FBI began investigating Smith because the agency was “very
concerned that he may be going [to Syria] to join ISIS.” J.A. 495. Smith’s denials that he
discussed the very plans which prompted the FBI’s inquiry, if believed, “were capable of
influencing the direction of the investigation.” United States v. Barringer, 25 F.4th 239,
251 (4th Cir. 2022) (cleaned up). These “misrepresentations, under normal circumstances,
could cause FBI agents to re-direct their investigation to another suspect, question their
informant differently or more fully, or perhaps close the investigation altogether.” United
States v. McBane, 433 F.3d 344, 352 (3d Cir. 2005). That’s enough to satisfy our review.
Smith’s claims to the contrary miss the mark. Even if the FBI’s interview was (as
Smith puts it) a “Hail Mary,” a reasonable jury could find that Smith’s false statements
were capable of influencing the FBI’s still-active investigation. See United States v.
Fondren, 417 F. App’x 327, 336 (4th Cir. 2011) (rejecting that “statements could not be
material given that the [FBI’s] investigation was essentially complete”). And that “the FBI
investigators already knew the answers to the questions they asked him” makes no
difference to our inquiry. Id. (collecting cases).
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B.
In challenging his Count Two conviction, Smith narrows his focus to the falsity and
materiality of his relevant statements. 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.” J.A. 21.
Smith’s contentions here turn on one underlying fact—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. We reject these arguments.
1.
As before, we begin with Smith’s falsity challenge. Smith reasserts a literal-truth
defense. This time, he argues that denying knowledge of Hilal’s intentions was truthful
because he “could have no knowledge of a person who does not exist, nor could he know
the intentions of a non-existent person.” Appellant’s Br. at 34. Smith’s contention thus
rises and falls with the meaning of “knowledge.”
We recently explored this terrain, finding the term “knowledge” “broad and
somewhat ambiguous.” Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 266 (4th Cir. 2021).
Though “knowledge” can mean “‘[a]n awareness . . . of a fact or circumstance’ or the
‘condition of having information’ about something,” it can also signify “‘a state of mind in
which a person has no substantial doubt about the existence of a fact.’” Id. (quoting
Knowledge, Black’s Law Dictionary (11th ed. 2019); Knowledge, Merriam-Webster
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Dictionary, https://www.merriam-webster.com/dictionary/knowledge). The result is that
“knowledge” can mean either an awareness of an objective truth or a person’s subjective
understanding of a thing. See id.Smith urges us to adopt the former meaning and ignore the latter. But the literal-
truth defense doesn’t permit us to disregard one construction of an ambiguous question in
favor of another. See Sarwari, 669 F.3d at 407. Godfrey asked Smith whether he “knew”
that Hilal was planning to use the buddy pass to travel to Syria and join ISIS. S.J.A. 81 at
2:04:40–2:05:20. A reasonable jury could decide, upon hearing the full interview, that
Godfrey’s question went to Smith’s subjective understanding of Hilal’s intentions, rather
than an awareness of the objective truth of those plans. So Smith’s defense fails here, too.
Smith disputes this conclusion, pointing us to the Third Circuit’s decision in United
States v. Castro, 704 F.3d 125 (3d Cir. 2013). In Castro, our sister court vacated a
defendant’s § 1001 conviction for lying to FBI agents about receiving extorted funds. See
id. at 139–41. The defendant had unwittingly hired FBI agents posing as “debt collectors”
to coerce a former business partner into repaying an investment in a failed venture. Id. at
130. Though the defendant accepted purportedly extorted money from the collectors, he
later denied ever receiving any payment from his old partner. Id. at 132.
The court found this denial was “completely, if unintentionally, accurate.” Id. at
139. It was undisputedly true that the defendant never received any money from his
partner—it came from the FBI. See id. at 140. Whether he “subjectively believed he was
lying” made no difference, the court said, because “our legal system does not convict
people of being bad.” Id.
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We find Castro inapt to Smith’s case. The issue of falsity in Castro turned on the
source of a payment. Here, the falsity of Smith’s statements turns on his state of mind—
more specifically, his understanding of Hilal’s travel plans. On that point, the government
offered ample evidence.
Khalid asked Smith to buy the buddy pass for Hilal because Hilal intended to fly
from Florida to New York and eventually make his way to “you know where,” meaning
Syria. J.A. 708. Khalid also described how he told Smith that Hilal was “very important
for us,” meaning ISIS. J.A. 708. The jury was free to disbelieve Khalid’s account having
heard all the recorded exchanges, but its determination is not for us to question. See United
States v. Wilson, 484 F.3d 267, 283 (4th Cir. 2007) (“If the evidence supports different,
reasonable interpretations, the jury decides which interpretation to believe.” (cleaned up)).
In short, substantial evidence supports the jury’s finding of falsity on Count Two.
2.
Smith next contends that the government failed to prove the materiality of his false
statements denying knowledge of Hilal’s travel plans.
The government again relied on Godfrey’s testimony to establish this element.
Godfrey explained that he asked the Hilal-related questions because the FBI needed to
establish “a baseline of truth” with Smith for additional questioning on the buddy pass.
J.A. 801. The FBI wanted to learn more about the involvement of Smith’s wife and the
person who had lent his credit card to buy Hilal’s plane ticket. The FBI didn’t know
whether that other person was someone “whose ideology was aligned with ISIS” or just an
“unwitting accomplice.” J.A. 802.
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But each question Godfrey asked risked revealing more of the FBI’s working
knowledge gained in the investigation. In turn, sharing that knowledge with Smith could
have compromised its investigation because Smith might have disclosed it to persons of
interest. Once Smith lied about knowing Hilal’s travel plans, Godfrey didn’t think it
worthwhile to compromise the FBI’s investigation in return for more untruthful answers.
Smith dismisses this theory and its supporting evidence, arguing that his credibility
alone could never be material to the FBI’s investigation, particularly where his untruthful
statements were based on the agency’s own made-up narrative. To permit a finding of
materiality on these facts, Smith says, “is to eliminate [that] requirement altogether and
transform nearly any false statement into a material one.” Appellant’s Br. at 24.
But it bears emphasizing that a false statement is material under § 1001 when it has
“a natural tendency to influence, or is capable of influencing, the decision-making body to
which it was addressed.” Hamilton, 699 F.3d at 362 (cleaned up). The Supreme Court has
explained that a jury, before applying this legal standard, must first make two factual
findings: the defendant’s relevant statement and the decision the government agency was
trying to make. See United States v. Gaudin, 515 U.S. 506, 512 (1995). Considering this
framework, we’re satisfied that a rational jury could find Smith’s false statements about
Hilal material to the FBI’s investigation.
Here, the FBI wasn’t only trying to discern whether Smith intended to provide
material support to a terrorist organization. The agency was also trying to understand what
role Smith’s wife and the credit-card owner had in the apparent scheme. So the FBI’s
decision-making at this stage encompassed its investigation into the conduct of Smith, his
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wife, and the other person participating in Smith’s activities. See Fondren, 417 F. App’x
at 335.
From there, we think it plain that Godfrey’s testimony adequately supports the jury’s
materiality finding. The FBI had to make a cost-benefit assessment during Smith’s
interview—how much of its investigation was it willing to compromise and what
information would it receive in return. Smith’s false statements on the buddy pass
influenced that assessment by informing the FBI what lines of questioning might be
fruitful. For instance, the FBI decided that Smith wasn’t a viable source to investigate the
person who purchased the buddy pass. But had the FBI believed Smith truthfully answered
its Hilal-related questions, a reasonable jury could accept Godfrey’s testimony as proof
that the FBI might well have questioned Smith differently, potentially changing the course
of the investigation.
Taking the evidence in the light most favorable to the government, as we must,
Smith’s false answers “were capable of influencing the direction of the investigation.”
Barringer, 25 F.4th at 251 (cleaned up); cf. Sarihifard, 155 F.3d at 307 (“[E]ven if a grand
jury disregards a witness’s false testimony, the false testimony may impede the grand jury’s
capacity to attain an accurate and prompt resolution of the matter under consideration.”).
In concluding as much, we reject Smith’s contention that his credibility alone could
never be material to the FBI’s investigation. The Supreme Court, in assessing § 1001, has
held that “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
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subject of the investigation perverts that function.” Brogan v. United States, 522 U.S. 398,
402 (1998) (emphasis omitted).
So too here. At its core, the FBI’s purpose was to discover the truth underlying
Smith’s potentially criminal enterprise. Smith’s false statements thus weren’t harmless lies
told in a vacuum; they related to other subjects of the FBI’s investigation. Under such
circumstances, we conclude that Smith’s answers—though revealing only his
untruthfulness—could alter the FBI’s decision-making. 6 See United States v. Lupton, 620
F.3d 790, 806–07 (7th Cir. 2010) (“When statements are aimed at misdirecting agents and
their investigation, even if they miss spectacularly or stand absolutely no chance of
succeeding, they satisfy the materiality requirement of 18 U.S.C. § 1001.”).
The Supreme Court’s decision in Kungys v. United States, 485 U.S. 759 (1988),
doesn’t change our conclusion. There, the Court addressed materiality under 8 U.S.C.
§ 1451(a), which provides for the denaturalization of citizens whose citizenship was
“illegally procured or [was] procured by concealment of a material fact or by willful
misrepresentation.” Id. at 764 n.1 (cleaned up). The government had argued that the
defendant’s false statements in his visa and naturalization applications disqualified him
from citizenship. See id. at 764–65. It said that § 1451(a)’s misrepresentation clause and
“illegally procured” clause both applied—the latter because the defendant’s false
statements rendered him ineligible for a good-moral-character finding (a requirement for
6
For these reasons, we likewise reject Smith’s assertion that his lies couldn’t
influence the FBI’s investigation because the agency fabricated the facts underlying his
false statements.
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naturalization) under 8 U.S.C. § 1101(f)(6). See id. The Third Circuit agreed only on the
former point, finding the defendant made material misrepresentations. Id. at 766.
In reversing and remanding for reconsideration, the Supreme Court clarified that
courts should apply § 1001’s materiality standard—and no other formulation—to
§ 1451(a)’s misrepresentation clause. See id. at 769–72. The Court then declined to reach
the government’s alternate basis for affirming under § 1451(a)’s “illegally procured”
clause for violation of § 1101(f)(6), which bars a finding of good moral character if a
person gives “false testimony” to obtain immigration benefits. Id. at 779. It addressed
only the Third Circuit’s conclusion that false testimony under § 1101(f)(6) had to be
material. See id. Unlike § 1451(a)’s misrepresentation clause, the Court said, § 1101(f)(6)
has no such materiality requirement. Id. The Court explained the divergence between the
statutes not just by their plain language but also by their purposes: § 1451(a)’s to prevent
“false pertinent data from being introduced into the naturalization process,” and
§ 1101(f)(6)’s to “identify a lack of good moral character.” Id. at 780.
Smith suggests that the Kungys court’s disparate treatment of false statements under
those statutes highlights the insufficiency of untruthfulness alone as proof of materiality.
He argues that our interpretation of materiality reduces § 1001(a)(2) to a
good-moral-character provision like § 1101(f)(6).
Smith is wrong. For one, the Kungys majority didn’t answer whether the
defendant’s untruthfulness was material to his procurement of citizenship, as § 1451(a)
requires. See id. at 767–72. But even if a defendant’s untruthfulness alone couldn’t
possibly influence the government’s naturalization decision, an ongoing criminal
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investigation presents a far different inquiry. As we’ve outlined, our focus is on the
particular agency to which a defendant lied—see Raza, 876 F.3d at 617—and any
falsehood going to the heart of an FBI investigation can influence it. See Brogan, 522 U.S.
at 402.
A final point. Smith complains that the FBI’s pertinent decision must be more than
just “the decision to ask more questions.” Appellant’s Br. at 25–26. He warns that, if we
sanction this theory, FBI agents will always be able to advance after-the-fact justifications
in service of materiality. Not so. Our precedent has long held that the government must
offer sufficient evidence to prove materiality (as it did here). See United States v. Ismail,
97 F.3d 50, 61 (4th Cir. 1996). That’s an adequate safeguard against theories premised on
an agency’s afterthoughts. 7
In sum, we conclude that Smith’s false statements denying his knowledge of Hilal’s
travel plans could have influenced the FBI’s investigation. So they were material.
IV.
Smith also contends that one of the district court’s instructions and an unrelated
comment during trial allowed the jury to convict him without determining whether his
Because a defendant may invoke his right to remain silent in an FBI interview,
7
Smith also argues it is “entirely speculative” for a jury to conclude how the investigation
would have proceeded had he been truthful. Appellant’s Br. at 25. Of course, if Smith had
remained silent or told the truth, there would be no materiality inquiry as there would be
no crime. In any event, Smith ignores that our focus is on his false statements’ potential
to alter the FBI’s investigation. See Barringer, 25 F.4th at 251 (“Whether the false
statement actually influenced an agency’s action is irrelevant.”).
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statements were false. Because Smith didn’t object to the instruction or the comment, we
review for plain error. See United States v. Hope, 28 F.4th 487, 493 (4th Cir. 2022). These
claims, however, are meritless.
Smith first challenges the court’s jury instruction that “the government is lawfully
permitted to use decoys and deception to conceal the identity of its informants.” J.A. 982.
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. See
United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006) (“We review a jury instruction
to determine whether, taken as a whole, the instruction fairly states the controlling law.”
(cleaned up)).
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.” J.A. 835. Smith
argues this statement misled the jury to believe the government had established those two
falsehoods. But context proves otherwise. Shortly after, the court said, “The question is,
were these two lies told or not?” J.A 835. And the court fully instructed the jury on the
elements of a § 1001(a)(2) offense, including falsity. We find no error here, much less a
plain one.
V.
We now address the district court’s refusal to give the jury an entrapment
instruction. We review a district court’s decision to give (or not give) a jury instruction for
abuse of discretion. See United States v. Hassler, 992 F.3d 243, 246 (4th Cir. 2021).
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“[A] valid entrapment defense has two related elements: government inducement of
the crime, and a lack of predisposition on the part of the defendant to engage in the criminal
conduct.” Mathews v. United States, 485 U.S. 58, 63 (1988). To establish inducement, “a
defendant must show that the government acted in an excessive manner that would prompt
a reasonably firm person to commit a crime.” Sarihifard, 155 F.3d at 308. Only when a
defendant makes this prima facie showing does the burden shift to the government to prove
the defendant’s predisposition to the criminal conduct. United States v. Young, 916 F.3d
368, 375–76 (4th Cir. 2019).
But “[t]he district court is the gatekeeper.” United States v. Hackley, 662 F.3d 671,
681 (4th Cir. 2011). If a defendant can’t produce “more than a mere scintilla of evidence
of entrapment, the court need not give the instruction.” Id. (cleaned up).
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. At trial, Godfrey
testified about these pressure tactics on Smith’s wife. Godfrey had called her “the weakest
link,” and he told the jury about the FBI’s plan to use her to get to Smith. J.A. 590. To
execute this plan, Godfrey approached Smith’s wife for an interview at her job, and he had
the grand jury subpoena delivered to her mother’s house.
The district court declined Smith’s request for an instruction, concluding he hadn’t
shown “an inducement to commit perjury.” J.A. 923. The court explained that there was
no evidence that the FBI subpoenaed Smith’s wife to “get him to come down” and lie to
agents. J.A. 923. That decision, the court reasoned, was Smith’s alone.
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We see no abuse of discretion. Smith offered no evidence to suggest the FBI
induced him into lying, even if the agency aimed to get him in the hot seat. See United
States v. Russell, 411 U.S. 423, 436 (1973) (“It is only when the Government’s deception
actually implants the criminal design in the mind of the defendant that the defense of
entrapment comes into play.”).
Godfrey warned Smith at the outset of the interview that the only way he could
“create any possible problems” was by “being deceptive or untruthful.” S.J.A. 81 at
1:24:00–1:24:15. Godfrey even gave Smith a copy of § 1001’s text during the interview—
before the Hilal questions—informing him that lying to the FBI was a criminal offense.
The FBI’s repeated efforts to ensure Smith told the truth belie any claim that agents
coaxed him into lying. See United States v. Kennedy, 372 F.3d 686, 698 (4th Cir. 2004).
And the mere fact that agents knew Smith might lie about Hilal’s travel plans after falsely
denying his own doesn’t amount to inducement. See Sarihifard, 155 F.3d at 308–09.
VI.
Finally, Smith maintains that his sentence is procedurally unreasonable because the
district court erroneously imposed the terrorism enhancement under U.S.S.G. § 3A1.4.
“Application of the terrorism enhancement provides a twelve level enhancement—and an
automatic criminal history category of VI—when ‘the offense is a felony that involved, or
was intended to promote, a federal crime of terrorism.’” United States v. Chandia, 514
F.3d 365, 375 (4th Cir. 2008) (quoting U.S.S.G. § 3A1.4). In turn, a “federal crime of
terrorism” has two elements: (1) “the commission of one of a list of specified felonies”;
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and (2) “a specific intent requirement, namely, that the underlying felony was calculated
to influence or affect the conduct of government by intimidation or coercion, or to retaliate
against government conduct.” Id. (cleaned up).
Smith claims the district court erred in applying the terrorism enhancement because
it failed to expressly find specific intent. Indeed, our precedent compels a district court to
identify the evidence underpinning its specific-intent finding when “the basic facts
supporting the conviction do not give rise to an automatic inference of the required intent.”
Id. at 376.
But we need not delve into this question given that we’re remanding for
resentencing because of the district court’s error on multiplicity. On remand, the district
court can address the merits of Smith’s claim regarding the terrorism enhancement.
VII.
In sum, we reverse the district’s denial of Smith’s motion to dismiss Count Two of
the indictment as multiplicitous, vacate the judgment, and remand for resentencing. We
otherwise affirm.
AFFIRMED IN PART, REVERSED IN PART,
VACATED AND REMANDED FOR RESENTENCING
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TOBY HEYTENS, Circuit Judge, concurring:
As the Court explains, the theory of entrapment Smith presented here is insufficient
to state a prima facie case of inducement and thus provides no basis for overturning Smith’s
convictions. 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.
I.
It is well established that the government may “use undercover agents to enforce the
law” and “afford opportunities or facilities for the commission of [an] offense.” Jacobson
v. United States, 503 U.S. 540, 548 (1992). In doing so, however, the government “may
not originate a criminal design, implant in an innocent person’s mind the disposition to
commit a criminal act, and then induce commission of the crime so that the Government
may prosecute.” Id.These principles apply equally to prosecutions under 18 U.S.C. § 1001. In Brogan
v. United States, 522 U.S. 398 (1998), the Supreme Court rejected the “exculpatory no”
defense, under which some courts had carved out an exception to criminal liability under
Section 1001 “for a false statement that consists of the mere denial of wrongdoing.” Id. at
399. “Whether or not the predicament of the wrongdoer run to ground tugs at the
heartstrings,” the Court explained, “neither the text nor the spirit of the Fifth Amendment
confers a privilege to lie.” Id. at 404. At the same time, however, the Court emphasized
that “background interpretive principle[s] of general application”—including that criminal
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statutes do not “cover violations produced by entrapment”—remain applicable in Section
1001 prosecutions. Id. at 406.
In a separate opinion, Justice Ginsburg underscored the importance of these
principles. As she noted, Section 1001 “arms Government agents with authority not simply
to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government
officer could prompt.” Brogan, 522 U.S. at 409 (Ginsburg, J., concurring in the judgment).
In particular, “the sweeping generality of § 1001’s language” creates the risk “that an
overzealous . . . investigator—aware that a person has committed some suspicious acts, but
unable to make a criminal case—will create a crime by surprising the suspect, asking about
those acts, and receiving a false denial.” Id. at 416.
II.
The facts of this case appear to implicate Justice Ginsburg’s concerns. Smith
initially drew the FBI’s attention because he had expressed interest in traveling to Syria.
Yet simply going to Syria—even with the intent to participate in jihad against Bashar al-
Assad’s regime—is not a federal crime, and Smith’s early conversations with the
government’s primary informant referenced entities not designated as foreign terrorist
organizations. Cf. 18 U.S.C. § 2339B (making it a crime to “knowingly provide[ ] material
support . . . to a foreign terrorist organization, or attempt[ ] . . . to do so”). ISIS, of course,
is a designated foreign terrorist organization. See 79 Fed. Reg. 27972 (May 15, 2014);
8 U.S.C. § 1189(a)(2)(A)(ii), (B)(i). But it was a government-compensated informant, not
Smith, who first mentioned ISIS—to the point of making Smith swear allegiance to ISIS
as a condition of assisting with Smith’s otherwise lawful aim of traveling to Syria. And, in
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any event, the government never charged Smith with actually providing (or attempting to
provide) material support to ISIS.
The government, however, had another route to secure a conviction. Beyond
requiring Smith to swear allegiance to ISIS, the government’s primary informant did
something else: He told Smith not to tell anyone about their conversations about ISIS.
See, e.g., SJA 16 (“ABU KHALID: . . . keep yourself down . . . don’t talk to nobody about
this.”). And then, during a later interview, FBI agents asked Smith about the very
conversations and topics the informant had directed Smith not to disclose. Consistent with
the informant’s advice, Smith falsely denied having spoken with any of the government’s
informants about traveling to Syria to join ISIS. And, with that, the government finally had
a crime: making false statements, in violation of 18 U.S.C. § 1001.
In this case, therefore, the government was not merely “aware that [Smith] ha[d]
committed some suspicious acts.” Brogan, 522 U.S. at 416 (Ginsburg, J., concurring in the
judgment). Instead, it might have been argued that by having one government agent (an
undisclosed confidential informant) raise the topic of ISIS and urge Smith not to disclose
those conversations to anyone, and then having another set of government agents (the FBI)
ask Smith about those very same conversations, the government “originate[d] a criminal
design” and “implant[ed] in an innocent person’s mind the disposition to commit a criminal
act.” Jacobson, 503 U.S. at 548.
This combination of circumstances might have distinguished Smith’s case from
others where we have not found an entrapment instruction necessary. In United States v.
Sarihifard, 155 F.3d 301 (4th Cir. 1998), for example, this Court concluded an entrapment
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defense would have failed where “there [was] no evidence suggesting that the
government’s purpose in questioning the defendant was the solicitation of perjured
testimony.” Id. at 308 (emphasis added). Here, in contrast, a jury might have been able to
find that when FBI agents asked Smith about matters the government’s own informant had
instructed Smith not to disclose to anyone, their purpose was to get Smith to lie and then
convict him for having done so. ∗
Smith, however, has not claimed that the government’s undisclosed confidential
informant—rather than the fully disclosed FBI agents—induced him to commit the crime
of lying to the FBI. For that reason, we need not decide whether the informant’s actions
could have given rise to a valid entrapment defense, and I concur in the Court’s decision
rejecting the argument presented here.
∗
A valid entrapment defense also requires “a lack of predisposition on the part of
the defendant to engage in the criminal conduct.” United States v. Blevins, 960 F.2d 1252,
1257 (4th Cir. 1992). Here too, the record suggests Smith might have had a colorable claim.
Consider, for example, Smith’s willingness to voluntarily talk to the FBI, truthfully offer
up names and descriptors of the informants, and describe his and his wife’s roles in buying
the airline’s discounted buddy pass.
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DIAZ, Circuit Judge, dissenting in part:
I join all but Part II of the Court’s opinion. In my view, the district court correctly
denied Smith’s motion to dismiss Count Two as multiplicitous.
“When a defendant is charged with multiple violations of the same statute arising
from the same course of conduct, the court must consider ‘[w]hat Congress has made the
allowable unit of prosecution.’” United States v. Shrader, 675 F.3d 300, 313 (4th Cir.
2012) (quoting Bell v. United States, 349 U.S. 81, 81 (1955)). This inquiry asks us to “look
to the language of the statute, being mindful that any ambiguity must be resolved in favor
of the defendant under the rule of lenity.” Id. (cleaned up). Whether two counts are
multiplicitous is a question of law we review de novo. Id.Section 1001 punishes, in part, “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
or representation.” 18 U.S.C. § 1001(a)(2). At bottom, § 1001(a)(2) defines the crime (and
so the unit of prosecution) in terms of a single statement or representation. See United
States v. Dunford, 148 F.3d 385, 389 (4th Cir. 1998) (explaining that, under a literal
construction, “any” in the context of a singular noun means a “single” item).
Section 1001’s legislative history supports this construction. Originally, § 1001
prohibited false “statements or representations.” 18 U.S.C. § 1001 (1948). But Congress
revised the statute to take on a singular form, now prohibiting any false “statement or
representation.” 18 U.S.C. § 1001(a)(2) (1996). Thus, each nonidentical statement or
representation (not each interview) is the unit of prosecution.
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True, the terms “statement” and “representation” can accommodate either a single
assertion or a series of the same. See Statement, Oxford English Dictionary (3d ed. 2012),
https://www.oed.com/view/Entry/189259 (last visited November 28, 2022) (defining
“statement” as both “[a] formal written or oral account of facts” and “[a]n expression of
something . . . a declaration, an assertion”); Representation, Oxford English Dictionary (3d
ed. 2009), https://www.oed.com/view/Entry/162997 (last visited November 28, 2022)
(defining “representation” as “a spoken or written statement”). But “we disfavor
interpretations of statutes that render language superfluous.” Alexander v. Carrington
Mortg. Servs., LLC, 23 F.4th 370, 379 (4th Cir. 2022) (cleaned up). So these usually
synonymous terms shouldn’t carry the same meaning in § 1001—one should mean a single
assertion, and the other, a series. I’m satisfied that Congress permitted the prosecution of
either a single lie or a series of lies. 1
The Supreme Court’s test in Blockburger v. United States confirms our conclusion
that each nonidentical false statement or representation may be prosecuted, asking
“whether each [offense] requires proof of a fact which the other does not.” 284 U.S. 299,
304 (1932); see, e.g., Shrader, 675 F.3d at 314. Indeed, we have used this test once before
in the § 1001 context, though in an unpublished decision. See United States v. Jameson,
Nos. 91-5848, 91-5849, 91-5876, 1992 WL 180146, at *9 (4th Cir. July 29, 1992) (per
curiam).
1
Because both counts charged Smith with making a false statement and
representation, I need not assign each term its corresponding definition.
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In Jameson, we held that “each nonidentical false statement made may be charged
as a separate violation.” Id. (cleaned up). 2 Applying Blockburger, we reasoned that the
government had to establish the falsity of two separate responses on a single form through
different facts. See id. at *9–*10. So each nonidentical false response supported a separate
§ 1001 offense. Id. I find Jameson’s reasoning persuasive.
Here, the falsity of Smith’s statements in Counts One and Two turned on proof of
different facts. Count One required the government prove Smith lied about his own “desire
or plans to travel to Syria.” J.A. 20. For Count Two, the government had to prove that
Smith lied about his knowledge of Hilal’s travel plans. So each count required proof of
Smith’s understanding of different travel plans, confirming that his convictions aren’t
multiplicitous.
Our decision in United States v. Mason, 611 F.2d 49 (4th Cir. 1979), is not to the
contrary. There, we concluded that 18 U.S.C. § 922(a)(6)’s prohibition on making “any
false or fictitious oral or written statement” in connection with a firearm or ammunition
sale presented an ambiguous unit of prosecution. Id. at 52 (cleaned up). We thus resolved
§ 922(a)(6)’s unit of prosecution in the defendants’ case as a course of conduct rather than
each false statement, dismissing their multiplicitous convictions. See id. at 52–53.
2
Each circuit to address this question has arrived at the same conclusion. See United
States v. Meuli, 8 F.3d 1481, 1485–86 (10th Cir. 1993); United States v. Segall, 833 F.2d
144, 146–48 (9th Cir. 1987); United States v. Guzman, 781 F.2d 428, 432–33 (5th Cir.
1986); United States v. Anderson-Bagshaw, 509 F. App’x 396, 411–13 (6th Cir. 2012);
United States v. Bustamante, 248 F. App’x 763, 764–65 (8th Cir. 2007) (per curiam).
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Acknowledging the similarity between the language in § 922(a)(6) and § 1001(a)(2), I
nonetheless reach a different result here.
Mason dealt with two defendants’ false denials of their felon status on multiple
forms they submitted to a gun dealer when making multi-firearm purchases—one form for
each gun. See id. at 50–51. Beyond § 922(a)(6)’s language, Mason relied on “the manner
in which the Gun Control Act [had] been administered by the Bureau of Alcohol, Tobacco
and Firearms.” Id. at 52.
We found that the Bureau hadn’t required multiple certification forms in a multi-
firearm purchase—that discretion was left to the individual gun dealer. See id. at 52–53.
Because “a particular gun dealer’s practice shouldn’t control the application of a federal
criminal statute,” we held each course of lying, not each lie, was the allowable unit of
prosecution. Id. at 53. And “nothing in [§] 922(a)(6) or its legislative history” suggested
that Congress intended otherwise. Id.
Mason’s reasoning doesn’t control this case. For starters, the Gun Control Act’s
administration has no bearing here. There’s no comparable administration of § 1001(a)(2).
But more importantly, § 1001’s legislative history does suggest that Congress intended
each individual, nonidentical false statement to be the unit of prosecution.
Accordingly, the district court correctly denied Smith’s motion to dismiss Count
Two as multiplicitous. Because my colleagues hold otherwise, I respectfully dissent.
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