KOUROSH BAKHTIARI, PETITIONER V. UNITED STATES OF AMERICA No. 90-6556 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1053-1063) is reported at 913 F.2d 1053. JURISDICTION The judgment of the court of appeals was entered on September 17, 1990. The petition for a writ of certiorari was filed on Monday, December 17, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's conviction under 18 U.S.C. 1001 for making false statements required proof that petitioner could reasonably have foreseen that his statements were within the jurisdiction of a federal agency. 2. Whether the evidence was sufficient to support petitioner's conviction under 18 U.S.C. 912 for pretending to be a State Department employee. STATEMENT Following a jury trial in the United States District Court for the Southern District of New York, petitioner was convicted of possession of a silencer not identified with a serial number, in violation of 26 U.S.C. 5845(a)(7) and 5861(i) (Count 1), of possession of a loaded semi-automatic pistol and a silencer by an illegal alien, in violation of 18 U.S.C. 922(g)(5) (Counts 2 and 3), of impersonating a State Department employee, in violation of 18 U.S.C. 912 (Count 4), and of making false statements, in violation of 18 U.S.C. 1001 (Count 5). The district court sentenced petitioner to terms of 46 months' imprisonment on Counts 1, 2, and 3, and to terms of 36 months' imprisonment on Counts 4 and 5, all terms to run concurrently. The court also imposed a total of ten years' supervised release, a fine of $7,500, and special assessments of $250. Pet. App. 1055. The court of appeals affirmed petitioner's convictions, but remanded the case for resentencing so that the district court could determine whether petitioner had affirmatively obliterated a serial number on the silencer involved in the Count 1 offense. Id. at 1055, 1063. /1/ 1. In the spring of 1988, petitioner, using the alias "Michael Anderson," entered into negotiations with a real estate broker, Tricia Newell, to purchase a Manhattan apartment. During the negotiations, petitioner told Newell that he was employed by the United States Department of State and by "the Department of Defense branch of the Department of State." Pet. App. 1055. He also told Newell that he required certain security improvements in the building where the apartment was located. Newell informed the Federal Bureau of Investigation. Ibid. On June 14, 1988, federal agents, posing as Newell's associate and her attorney, accompanied her to a meeting with petitioner, who arrived carrying a briefcase that he placed on the floor. The agent posing as Newell's attorney said he needed to see "Michael Anderson's" official identification and also asked where petitioner worked. Petitioner said he worked for the "United States State Department." The agent asked petitioner to be more specific. Petitioner said he worked in the "Department of Defense * * * a joint task force with the State Department." Petitioner was then arrested. Ibid. When he was arrested, petitioner was carrying a briefcase that contained a loaded 9 mm. semi-automatic pistol, a silencer for the pistol, a knife, grenades, a garrote, and bottles of strychnine and chloroform. After his arrest, petitioner requested that the agents "call (then Secretary of Defense) Frank Carlucci . . . that this was a special operation and that (petitioner) couldn't talk about it and if (the agents) would call (Carlucci), (Carlucci) would clear it up." Pet. App. 1056. 2. The court of appeals affirmed. Pet. App. 1053-1063. With respect to the false personation count, /2/ the court noted that petitioner had claimed on more than one occasion to work for the State Department and had negotiated for an apartment under that false identity. Id. at 1059. Rejecting petitioner's claim that his statements were merely bravado, the court found that the jury could reasonably conclude from the evidence that petitioner "expected (Newell) and her 'associate' to rely on his purported identity as a federal official in the negotiations, and knew that they wer thus willing to discuss seriously both the availability of an apartment and the possibility of security improvements to the building because of (petitioner's) purported position." Ibid. On the basis of petitioner's claims and his negotiations with Newell, the court said (ibid.), a reasonable jury could also fairly conclude that "(petitioner) hoped to gain access to an apartment and other advantages that would not otherwise have been available to him had he identified himself as an illegal alien," /3/ and that he had therefore committed "an overt act that assert(ed), implicitly or explicitly, authority that (he) claim(ed) to have by virtue of the office he pretend(ed) to hold * * *." Ibid. (quoting United States v. Rosser, 528 F.2d 652, 656 (D.C. Cir. 1976)). With respect to the false statement count, /4/ the court rejected petitioner's contention that he could not be convicted under 18 U.S.C. 1001 unless it was at least reasonably foreseeable that he was involved in a matter within the jurisdiction of a federal agency. The court noted that in United States v. Yermian, 468 U.S. 63, 75 & n.14 (1985), this Court had ruled that "proof of actual knowledge of federal agency jurisdiction is not required under Section 1001," but had left open the question whether some lesser standard of culpability was necessary for conviction under the statute. Then, relying in part on decisions of three other courts of appeals, /5/ the court held that "no mental state is required with respect to federal involvement in order to establish a violation of Section 1001." Pet. App. 1060. The court of appeals explained (ibid.) that this Court's opinion in Yermian, read as a whole, /6/ left "no doubt" that in Section 1001 Congress had acted "to criminalize the issuance of an intentionally false statement within the jurisdiction of a federal department or agency, regardless of the defendant's awareness that the statement will be so delivered." Pet. App. 1060. This conclusion, the court said (Pet. App. 1061), was supported by the plain language of the statute, which could have included a reasonable foreseeability requirement but did not do so; by the statute's legislative history, which shows that Congress intended to overrule legislatively a prior, narrower interpretation of the statute by this Court; and by decisions of this Court (e.g., United States v. Rodgers, 466 U.S. 475, 479-484 (1984)) broadly construing the jurisdictional clause of Section 1001. /7/ ARGUMENT 1. Petitioner contends (Pet. 6-9) that the court of appeals erred when it held that he could be convicted of making false statements under 18 U.S.C. 1001 even if he had no reason to foresee that his statements involved federal agency jurisdiction. Because the court of appeals properly construed Section 1001 in the light of this Court's holding in United States v. Yermian, 468 U.S. 63, 75 (1984), further review of its decision is not warranted. /8/ First, the language of Section 1001 does not suggest that some mental state is required with respect to federal jurisdiction. No adverbs or phrases modify the requirement that a "matter (be) within the jurisdiction of any department or agency of the United States." As this Court observed in Yermian (468 U.S. at 68-69, emphasis added): (The) primary purpose (of this jurisdictional requirement) is to identify the factor that makes the false statement an appropriate subject for federal concern. Jurisdictional language need not contain the same culpability requirement as other elements of the offense. * * * Certainly in this case, the statutory language makes clear that Congress did not intend the terms "knowingly and willfully" to establish the standard of culpability for the jurisdictional element of Section 1001. * * * Once this is clear, there is no basis for requiring proof that the defendant had actual knowledge of federal agency jurisdiction. The statute contains no language suggesting any additional element of intent, such as a requirement that false statements be "knowingly made in a matter within federal agency jurisdiction," or "with the intent to deceive the Federal Government." The decision of the court of appeals here, holding that Section 1001 does not require a mental state as to federal involvement, is thus fully consistent with this Court's holding that Section 1001 contains "no language suggesting any additional element of intent." Just as the Court in Yermian found that the absence of language requiring actual knowledge of the jurisdictional element "provides convincing evidence" (468 U.S. at 73) that no such knowledge need be proven, the court of appeals in this case correctly reasoned (Pet. App. 1061) that the absence of a reasonable foreseeability requirement in the statute "provides convincing evidence" that the government need not prove reasonable foreseeability with respect to the jurisdictional element. In addition, the purpose of Section 1001, as amended, was to extend the statute's coverage to all deceptive practices that might frustrate authorized government functions. /9/ See United States v. Gilliland, 312 U.S. 86, 93 (1941); United States v. Green, 745 F.2d 1205, 1210 (9th Cir. 1984), cert. denied, 474 U.S. 925 (1985). As the court of appeals pointed out, this Court has thus consistently accorded a broad interpretation to the jurisdictional clause of Section 1001. See United States v. Rodgers, 466 U.S. at 479-484; Bryson v. United States, 396 U.S. 64, 70-71 (1969); see also United States v. Bramblett, 348 U.S. 503, 507 (1955) (no indication in legislative history that scope of statute was to be restricted). The court of appeals' determination that the jurisdictional element itself imported no intent requirement over and above the statute's requirement that the false statement be made "knowingly and willfully" is fully in keeping with Congress's purpose and this Court's consistent methodology in interpreting the statute. The court of appeals' interpretation of the statute in the circumstances of this case did not set a "trap for the unwary" or threaten to criminalize "wholly innocent conduct." Yermian, 468 U.S. at 74. On more than one occasion, petitioner deliberately and falsely presented himself as a State Department employee to Newell and to the federal agents who posed as her associate and her attorney, negotiating in this pretended role for an apartment and for possible security improvements in the building where the apartment was located. Accordingly, this is not a case where the court of appeals has "criminalize(d) the making of even the most casual false statements so long as they turned out, unbeknownst to their maker, to be material to some federal agency function." United States v. Yermian, 468 U.S. at 82 (Rehnquist, J., dissenting). Cf. United States v. Suggs, 755 F.2d 1538, 1542 (11th Cir. 1985) (rejecting argument that this Court established a constructive knowledge requirement under Section 1001 by implication in Yermian). Finally, even if, as petitioner contends, Section 1001 incorporates a reasonable foreseeability requirement, his conviction would not be affected, since it was reasonably foreseeable that petitioner's impersonation of a State Department employee would fall within the jurisdiction of some federal agency, whether the Department of State itself, which would naturally concern itself with persons who impersonate its employees, or another agency, like the Department of Justice, that is charged with the prosecution of persons who falsely represent themselves as federal agency employees. For this reason as well, the decision of the court of appeals does not merit further review. /10/ 2. Petitioner also contends (Pet. 9-12) that his repeated statements that he worked for the State Department were insufficient to establish false personation under 18 U.S.C. 912. In support of this contention, he argues that the statute requires an assertion of government authority, and he made no such assertion. To support a conviction under 18 U.S.C. 912, the government was required to show that petitioner pretended to be a federal employee and that he acted pursuant to his assumed authority. See United States v. Harmon, 496 F.2d 20 (2d Cir. 1974). The government plainly met this burden. The evidence showed (see Pet. App. 1055) that on more than one occasion petitioner represented to Newell and the federal agents posing as her associates that he was a State Department employee, negotiated for an apartment under that false identity, and discussed his need for security improvements to the building where the apartment was located. Thus the court of appeals correctly found (id. at 1059) that the jury could reasonably conclude from this evidence that petitioner expected Newell and her "associates" to take his purported identity into account during the negotiations, and knew that because of that false identity they would discuss seriously the availability of an apartment and possible security improvements to the building. Furthermore, as the court of appeals accurately noted (ibid.), it was likewise reasonable for the jury to conclude that petitioner sought, through his false claims of State Department employment and his negotiation to purchase an apartment in that purported capacity, to obtain access to an apartment and other advantages, e.g., security improvements, that he could not have otherwise secured if he had accurately identified himself, and that he had therefore at least implicitly asserted governmental authority associated with the office he pretended to hold. See United States v. Rosser, 528 F.2d at 656 (reasonable for Congress to conclude in enacting Section 912 that person pretending to be officer or employee of United States and asserting authority by acting as such seeks to cause person so deceived to follow course of action he would not otherwise have pursued). In these circumstances, the court of appeals correctly ruled that the evidence sufficed to support petitioner's conviction under the false personation statute, 18 U.S.C. 912. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney FEBRUARY 1991 /1/ Petitioner also appealed from two judgments of conviction for conspiracy to escape, attempted escape, and escape, in violation of 18 U.S.C. 371 and 751(a). The district court in those two cases sentenced him to a $5,000 fine and a term of 24 months' imprisonment, to run consecutively to the sentences imposed in the instant case, and the court of appeals affirmed. Pet. App. 1055. Petitioner does not seek review in this Court of his escape-related convictions, of his convictions on Counts 1, 2, and 3 in the instant case, or of his sentencing. Petitioner also does not seek review of the district court's pretrial decision to preclude petitioner from presenting a defense based on alleged duress. See Pet. App. 1057-1058. /2/ In pertinent part, 18 U.S.C. 912 provides: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, * * * shall be fined not more than $1,000 or imprisoned not more than three years, or both. /3/ The government's proof at trial had established that at the time of petitioner's arrest he was in the United States illegally, his student visa extension having expired on January 1, 1984. Pet. App. 1057. /4/ In pertinent part, 18 U.S.C. 1001 provides that (w)hoever, in any matter within the jurisdiction of any department or agency of the United States * * * makes any false, fictitious or fraudulent statements or representations * * * shall be fined not more than $10,000 or imprisoned not more than five years, or both. /5/ See United States v. Gibson, 881 F.2d 318, 323 (6th Cir. 1989); United States v. Suggs, 755 F.2d 1538, 1542 (11th Cir. 1985); United States v. Green, 745 F.2d 1205, 1209 (9th Cir. 1984), cert. denied, 474 U.S. 925 (1985). /6/ The court acknowledged (Pet. App. 1060) the presence of "somewhat conflicting language" in a footnote in Yermian (see 468 U.S. at 75 n.14), but explained that the language in question did not set a different standard for intent, but merely pointed out that the defendant in Yermian received a more favorable instruction on intent -- requiring reasonable foreseeability -- than that to which he was entitled. /7/ Because the court ruled that petitioner had properly been convicted for his false pre-arrest statements, it observed that it did not have to reach petitioner's argument that the "exculpatory no" doctrine precluded his conviction for his false post-arrest statements. Pet. App. 1061. The court noted, however, that the doctrine would not have applied in petitioner's case because he "did much more than simply say 'no' in response to the federal agent's post-arrest questions." Id. at 1062. /8/ In Yermian, the Court held (468 U.S. at 75), after an analysis of the language of Section 1001 and its legislative history, that actual knowledge that a matter is within the jurisdiction of a federal agency is not required to establish a violation of the statute. In the circumstances of that case, however, where the jury was instructed on reasonable foreseeability without objection from the government, the Court found it unnecessary to decide whether some less culpable mental state must be proved in order to show a Section 1001 violation. Id. at 75 n.14. In the present case, no reasonable foreseeability instruction was given to the jury. Therefore, the court of appeals reached the question reserved in Yermian. /9/ In the present case, of course, petitioner's false claims undermined both the State Department's legitimate efforts to secure appropriate living and security arrangements for its actual employees, and the FBI's investigation of petitioner's deceitful scheme. /10/ Petitioner does not assert that there is any conflict among the circuits concerning the issues in this case. Any disagreement over the requirements of Section 1001 within the Ninth Circuit, compare United States v. Green, 745 F.2d 1205, 1210 (9th Cir. 1984), cert. denied, 474 U.S. 925 (1985) with United States v. Facchini, 874 F.2d 638, 646 (9th Cir. 1989) (en banc) (Alarcon, J., concurring), would not warrant review by this Court. See Wisniewski v. United States, 353 U.S. 901 (1957).