United States v. Atalig ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10511
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00004-ARM
FERMINA ATALIG,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern Mariana Islands
Alex R. Munson, Chief District Judge, Presiding
Argued and Submitted
June 8, 2007—Honolulu, Hawaii
Filed September 6, 2007
Before: Arthur L. Alarcón, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
11733
UNITED STATES v. ATALIG 11735
COUNSEL
Timothy E. Moran, Assistant United States Attorney, United
States Attorney, Districts of Guam and the NMI, Saipan, MP,
for the plaintiff-appellee.
George Anthony Long, San Jose, Saipan, MP, for the
defendant-appellant.
OPINION
TALLMAN, Circuit Judge:
Fermina Manglona Atalig appeals her conviction for con-
spiracy to submit false claims to the United States in violation
of 18 U.S.C. §§ 2871 & 10012 and seven counts of making
1
Section 287 provides that “[w]hoever makes or presents to any person
or officer in the civil, military, or naval service of the United States, or to
any department or agency thereof, any claim upon or against the United
States, or any department or agency thereof, knowing such claim to be
false, fictitious, or fraudulent, shall be imprisoned not more than five
years.”
2
Section 1001(a) makes criminal the acts of any person who, “in any
11736 UNITED STATES v. ATALIG
false statements in violation of § 1001. A jury in the Northern
Mariana Islands found that Atalig knowingly made material
false statements when submitting applications for federal
Disaster Unemployment Assistance (“DUA”) benefits on
behalf of Rota residents. We hold that the false statement stat-
ute does not require the government to prove which particular
agency within the executive branch maintains jurisdiction
over the matter involving the submission of false statements,
and we find that sufficient evidence existed to support
Atalig’s fraud conviction.3 We have jurisdiction under 28
USCA § 1291, and we affirm.
I
Super Typhoon Pongsona struck Rota Island in the Com-
monwealth of the Northern Mariana Islands on December 7,
2002. President George W. Bush declared Rota a major disas-
ter area,4 and the Federal Emergency Management Agency
(“FEMA”) developed an assistance package for the island,
including benefits under the DUA program. DUA cash pay-
ments were available to individuals who lost their employ-
ment or livelihood as a direct result of the typhoon. See
generally 42 U.S.C. § 5177; 20 C.F.R. § 625.4.
The Mayor of Rota appointed Atalig to administer the
DUA program. In her capacity as the coordinator, Atalig pre-
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 repre-
sentation.”
3
In a separately-filed Memorandum disposition we address the other
issues raised by Atalig on appeal.
4
The Robert T. Stafford Disaster Relief and Emergency Assistance Act
authorizes the President to declare a “major disaster” when “the disaster
is of such severity and magnitude that effective response is beyond the
capabilities of the State and the affected local governments and that Fed-
eral assistance is necessary.” 42 U.S.C. § 5170.
UNITED STATES v. ATALIG 11737
pared advertisements alerting Rota’s 3200 residents of the
availability of benefits, took applications, and made the final
determination of eligibility. FEMA relied on Atalig’s eligibil-
ity determinations, and Atalig controlled all access to the
actual applications and files. She certified or caused others to
certify each claimant’s eligibility for the DUA payments.
The evidence presented at trial showed that Atalig had a
close relationship with all of the applicants and that, in many
cases, she filled in large portions of each application for them
without asking any questions. The evidence also showed that
Atalig took steps to substantiate her false claims and thwart
detection of the fraud. In May 2003, Atalig learned that a pub-
lic auditor planned to inspect the claims files, and she directed
her subordinates to place a copy of a Mayor’s Certification
form in each applicants’ folder. The form purportedly certi-
fied that each applicant was either a farmer or fisherman
whose crops or livelihood had been damaged by the storm.
However, as Angie Manglona (“Angie”) testified, Atalig had
obtained a blank, signed certification form. She then copied
the original and asked either Angie or Marita Manglona to fill
in the form with the applicants’ name and place the form in
the applicants’ folder.
On January 27, 2005, Atalig was indicted on one count of
conspiracy to submit false claims and seven counts of making
false statements. The Indictment alleged that Atalig, “in a
matter within the jurisdiction of the executive branch of the
Government of the United States, namely, within the jurisdic-
tion of FEMA and of the Department of Labor, . . . knowingly
. . . used false writings and documents knowing the same to
contain materially false, fictitious and fraudulent statements.”
During trial, the jury heard evidence that the United States
Department of Labor coordinated the DUA program and
FEMA provided the funding. The district court also admitted
into evidence the DUA Handbook, which sets forth the juris-
dictional responsibilities of the executive agencies that pro-
vide disaster relief.
11738 UNITED STATES v. ATALIG
As explained in the DUA Handbook, the President dele-
gated his responsibilities and functions under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act
(“Stafford Act”) to the Director of FEMA. Exec. Order No.
12,673, 54 Fed. Reg. 12,571 (March 23, 1989). Previously,
subject to general policy guidance, the Director of FEMA del-
egated most of this authority to the Secretary of Labor.
FEMA, Delegation of Authority to the Department of Labor,
51 Fed. Reg. 4988-03 (Feb. 10, 1986). Under that delegation,
which remained in place after the passage of the Stafford Act,
FEMA maintained some authority to administer and enforce
the program. See id. at 4988-4989 (“With the concurrence of
the Director of [FEMA], the [Secretary of Labor has the]
authority to issue such rules and regulations as may be neces-
sary and appropriate to effectuate this delegation.”).
At the close of trial evidence, the district court instructed
the jury that the substantive offense of making false state-
ments required the government to prove that “[Atalig] made
or used a writing or document which contained a false state-
ment in a matter within the jurisdiction [of FEMA].” On
appeal Atalig argues that the evidence proved that the Depart-
ment of Labor, rather than FEMA, maintained exclusive juris-
diction over the DUA benefits wrongfully paid to claimants.
But, as we explain below, because of a statutory change this
argument is unavailing.
II
We review de novo a district court’s denial of a motion for
judgment of acquittal based upon insufficient evidence.
United States v. Bello-Bahena, 411 F.3d 1083, 1087 (9th Cir.
2005). We must view the evidence in the light most favorable
to the government and determine whether any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt. United States v. Gonzalez-Torres,
309 F.3d 594, 598 (9th Cir. 2002). We review de novo ques-
UNITED STATES v. ATALIG 11739
tions of statutory interpretation. United States v. McNeil, 362
F.3d 570, 571 (9th Cir. 2004).
A conviction under § 1001 requires the government to
prove (1) a statement, (2) falsity, (3) materiality, (4) knowl-
edge, and (5) jurisdiction. 18 U.S.C. § 1001; United States v.
Camper, 384 F.3d 1073, 1075 (9th Cir. 2004). Under § 287,
the government must prove that the defendant (1) presented
a claim against the United States and (2) knew such claim to
be false. 18 U.S.C. § 287; United States v. Causey, 835 F.2d
1289, 1292 (9th Cir. 1987).
III
[1] In 1996, Congress amended the “jurisdictional” element
of § 1001. See False Statements Accountability Act of 1996,
Pub. L. No. 104-292, 110 Stat. 3459, 3459 (codified as
amended at 18 U.S.C. § 1001 (2000)). The prior statutory lan-
guage had specified that the matter pertaining to the false
statements must be “within the jurisdiction of any department
or agency of the United States.” 18 U.S.C. § 1001 (1996). The
1996 amendment broadened the scope of the statute to include
any matter “within the jurisdiction of the executive, legisla-
tive, or judicial branch of the Government of the United
States.” False Statements Accountability Act of 1996, Pub. L.
No. 104-292, 110 Stat. at 3459. Relying on the pre-amended
version of § 1001, in conjunction with our decision in United
States v. Facchini, 874 F.2d 638 (9th Cir. 1989) (en banc),
Atalig argues that the government bore the burden of proving
which specific agency within the executive branch maintained
jurisdiction over the matter related to the false statements.
In Facchini, interpreting the old statutory language, we
held that a federal agency has “jurisdiction” for purposes of
§ 1001 if the false statements “concern the authorized func-
tions of an agency or department rather than matters periph-
eral to the business of that body.” Id. at 641 (internal
quotation marks omitted). There we said that the agency must
11740 UNITED STATES v. ATALIG
have “the power to exercise authority in a particular situa-
tion.” Id. (internal quotation marks omitted). When the federal
agency funds the benefits provided by a certain program, i.e.,
unemployment insurance, that agency has jurisdiction for pur-
poses of § 1001. Id. at 640, 643.
[2] Even if we assume that Facchini required proof that a
particular federal agency within the executive branch held
jurisdiction, the 1996 amendment removed the statutory lan-
guage on which such a defense could have been based. See
McNeil, 362 F.3d at 573-74 (stating that we must reevaluate
decisions that rely on older versions of the statutes).5 In Hub-
bard v. United States, 514 U.S. 695 (1995), the Supreme
Court narrowed the scope of the false statement statute by
holding that “a federal court is neither a ‘department’ nor an
‘agency’ within the meaning of § 1001.” Id. at 715. Congress
responded by amending § 1001 to encompass any activity
“within the jurisdiction of the executive, legislative, or judi-
cial branch of the Government of the United States.” See
False Statements Accountability Act of 1996, Pub. L. No.
104-292, 110 Stat. at 3459. Rather than basing § 1001 liability
on the technical definitions of the terms “department” or
“agency,” Congress made clear its intent to apply false state-
ment liability under § 1001 to all three branches of the federal
government, subject to a few limitations pertaining to the leg-
islative and judicial branches not applicable to this appeal. See
H. R. Rep. 104-680, as reprinted in 1996 U.S.C.C.A.N. 3935,
3935.
5
Two of this court’s post-1996 published opinions fail to note the effect
of the 1996 amendment to § 1001 on prior case law. See United States v.
Jiang, 476 F.3d 1026 (9th Cir. 2007); Camper, 384 F.3d 1073. Neither of
these cases, however, had reason to address whether the “agency jurisdic-
tion” requirement survives those amendments. See Jiang, 476 F.3d at 1031
(concluding that there was insufficient evidence to prove that the defen-
dant knowingly made a false statement); Camper, 384 F.3d at 1075 (stat-
ing that the defendant contested only the falsity element).
UNITED STATES v. ATALIG 11741
[3] Therefore, our only concern here is whether Atalig’s
false statements supporting the false claims for benefits fell
within the jurisdiction of the executive branch. A matter is
“within the jurisdiction” of the executive branch “when it has
the power to exercise authority in a particular situation.”
United States v. Rodgers, 466 U.S. 475, 479 (1984); see also
Facchini, 874 F.2d at 641.
In Facchini, we held that the Department of Labor did not
have jurisdiction when the defendants gave false statements to
receive benefits under a state-funded unemployment insur-
ance program administered by Oregon but authorized by the
Secretary of Labor. 874 F.2d at 643. Although the Department
of Labor approved Oregon’s unemployment plan and pro-
vided funds for “the proper and efficient administration” of
the state unemployment insurance laws, the Department did
not provide one cent of federal money to pay the actual unem-
ployment benefits. Id. at 640. However, we held that the
Department of Labor did have jurisdiction over a second
group of defendants when it was the Department of Labor,
and not the state, that paid the benefits with federal funds. Id.
at 643. We relied on two factors: (1) the Act in question
explicitly provided that any applicant making false statements
was subject to prosecution under § 1001 and (2) the unem-
ployment benefits were federally funded. We held, because
the false statements resulted in benefits being paid from the
federal budget, “there [wa]s a direct relation between the fal-
sity of those statements and the Department of Labor’s statu-
tory function of certifying the payment of federal money for
unemployment compensation.” Id.
[4] Atalig’s actions here are no different in kind from the
statements involving the second group of defendants in Fac-
chini. The false statements she made in preparing the DUA
benefit claim forms on behalf of Rota residents related to a
federally funded program. There was a direct relation between
the falsity of Atalig’s statements and the executive branch’s
function of expending federal disaster payments through the
11742 UNITED STATES v. ATALIG
DUA program. Cf. Facchini, 874 F.2d at 643. We have no
difficulty in concluding that there was sufficient evidence to
prove the federal jurisdictional element supporting Atalig’s
§ 1001 convictions.
[5] We also find that sufficient evidence supported the
jury’s verdict on the remaining four elements of the § 1001
offenses, as well as the jury’s verdict on the conspiracy count.
The evidence revealed a pattern of improper payments to
claimants who were not in fact deprived of a living as a direct
result of the typhoon. In some cases, the claimants did not
even live on Rota at the time of the storm. Atalig knew each
of the claimants extremely well (the island is quite small and
the claimants of each count of conviction were either her rela-
tives or her friends), and she directed her subordinates to
place fraudulent certification forms in each of the applicants’
folders in an effort to escape detection of the false claims by
a public auditor. Angie’s testimony that she knowingly made
false statements on applications to carry out Atalig’s com-
mand to “help everyone” who filed for DUA benefits sufficed
to sustain Atalig’s conspiracy conviction as well. See 18
U.S.C. § 371.
AFFIRMED.