United States District Court, D. Arizona
JENNIFER G. ZIPPS JUDGE
Pending before the Court is a Report and Recommendation issued by United States Magistrate Judge Bowman, recommending denial of Defendant’s “Motion to Dismiss for Violation of Fed. R. Crim. P. 7(c)(1).” (Doc. 183.) On May 19, 2015, Defendant filed an Objection to the Report and Recommendation (doc. 185) and on May 28, 2015, the Government filed a Response. (Doc. 197.) Because Defendant’s Objection fails to undermine the proper analysis and conclusion of the Magistrate Judge, the Court will overrule the objection and adopt the Report and Recommendation.
In her Motion to Dismiss, Defendant requests that the Court dismiss Count 5 of the First Superseding Indictment (doc. 93) and Counts 6b, 6g, 7d and 7e. In the alternative, Defendant requests that the Court dismiss Counts 5a, 6b, 6g, 7d and 7e.
Count 5 alleges Defendant made four false statements to Unit Manager Scott Pennington of the Federal Bureau of Prisons (BOP) in violation of 18 U.S.C. § 1001. Defendant contends that any statements made to Pennington cannot constitute a violation of § 1001. According to Defendant, she could not have believed that her “excited utterances” to Pennington would be capable of influencing the decision-making process of the body to which the statement was addressed because Pennington was a co-worker, not an investigator. Defendant asserts that, to be actionable, a statement must be made to a federal investigator or agent with investigative powers.
Defendant argues that undisputed documentary evidence demonstrates that Defendant did not make the statements alleged in Counts 6b and 7d (that Jones told her Jones knew Goins from back in New York). Defendant states that there are no BOP transcripts of the interview relevant to the statement in Count 6 and that with respect to Count 7, the Government’s only evidence of the statement - FBI tapes - shows that it was Inmate Goins who said he told Defendant that he knew Jones from back in New York (presumably this was during the FBI’s interview of Goins). Defendant’s statements to FBI agents apparently were not taped.
Finally, Defendant asserts that the “alleged falsehoods” attributed to her in counts 6g (that Defendant spoke with Goins’ attorney on August 1, 2011) and 7e (that Defendant claimed to be lying in toilet water on the floor of the staff bathroom) are immaterial.
STANDARD OF REVIEW
The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998). // //
1. A false statement need not be made to a federal investigator to constitute a violation of 18 U.S.C. § 1001.
In her Report and Recommendation, Judge Bowman concluded that neither case law nor 18 U.S.C. § 1001 requires that a false statement be made to a federal agent. The statute requires only that “the defendant knowingly and willfully made a materially false statement with regard to a matter within the jurisdiction of the executive, legislative, or judicial branch of the United States government.” (Doc. 183, p. 3.) This Court agrees.
Section 1001 provides that it is a federal crime for an individual to make any false or fraudulent statement in any matter within the jurisdiction of a federal agency. 18 U.S.C. § 1001. In order to fulfill § 1001’s jurisdiction requirement, the false statement must relate to the “authorized functions of an agency or department” rather than “matters peripheral to the business of that body.” United States v. Facchini, 874 F.2d 638, 641 (9th Cir. 1989) (quoting United States v. Rodgers, 466 U.S. 475, 479 (1984)). “A department or agency has jurisdiction . . . when it has the power to exercise authority in a particular situation.” Rodgers, 466 U.S. at 479. The false statement does not need to be made to a federal agent to support a conviction under § 1001. United States v. King, 660 F.3d 1071, 1081 (9th Cir. 2011); see also Facchini, 874 F.2d at 640-41. It is necessary that the “false statement involve a matter within the agency jurisdiction at the time it was made.” United States v. Oren, 893 F.2d 1057, 1064 (9th Cir. 1990) (citations omitted) (emphasis in original).
Here, the alleged false statements contained in Count 5 satisfy 18 U.S.C. § 1001’s jurisdiction requirement. Defendant allegedly made the false statements in Count 5 to Unit Manager Scott Pennington, a Federal Bureau of Prisons employee. The Federal Bureau of Prisons is an entity of the Department of Justice, a federal agency of the Executive Branch. Defendant’s alleged false statements to Mr. Pennington concerned an incident over which the Federal Bureau of Prisons “ha[d] the power to exercise authority.” See Rodgers, 466 U.S. at 479. As a Unit Manager, Mr. Pennington was responsible for the oversight of the assigned unit in prison. He possessed the authority to take further action and report the conduct and statements that were alleged to have occurred within his unit. The statements to Unit Manager Pennington related to an “official, authorized function” of the Federal Bureau of Prisons and not a “matter peripheral to [its] business.” Defendant contends United States v. Lyle, 742 F.3d 434 (9th Cir. 2014) “more closely resembles the position” in her case. (Doc. 185, p. 2.) Lyle is inapposite. In Lyle, the Ninth Circuit interpreted the word “tamper[ing]” as that word is used in 18 U.S.C. § 1365. 742 F.3d at 438-439. After analyzing the plain language of the statute and the legislative history, the Ninth Circuit concluded that the indictment sufficiently alleged “tamper[ing].” Id. Lyle makes no reference to 18 U.S.C. § 1001 or to its interpretation. Here, Defendant asks the Court to find that the term “during an investigation” requires the Government to prove that the statement was made to a federal investigator in order ...