                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5136


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAMES WILBUR FONDREN, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:09-cr-00263-CMH-1)


Argued:   December 9, 2010                 Decided:   March 18, 2011


Before GREGORY and SHEDD, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.


Affirmed by unpublished opinion.    Senior Judge Faber wrote the
opinion, in which Judge Gregory and Judge Shedd joined.


ARGUED: Lawrence Robbins, ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant.
James Philip Gillis, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: William P. Baude,
ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER, LLP,
Washington, D.C., for Appellant.     Neil H. MacBride, United
States Attorney, W. Neil Hammerstrom, Jr., Assistant United
States   Attorney,  OFFICE   OF  THE UNITED   STATES  ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
FABER, Senior District Judge:

      Appellant     James   Wilbur      Fondren,             Jr.     was   convicted      of

unlawful communication of classified information by a government

employee, in violation of 50 U.S.C. § 783(a), and two counts of

making   false    statements      to   agents          of    the    Federal      Bureau   of

Investigation     (FBI),    in    violation        of       18    U.S.C.   §    1001.     He

appeals his conviction on two grounds.                      First, he contends there

was insufficient evidence to support his conviction for passing

classified information because there was no evidence that he

knew or had reason to believe the person to whom he communicated

the   information    was    a    representative             or     agent   of    a   foreign

government.       Fondren also contends that there was insufficient

evidence to support his conviction on the false statement counts

because the government failed to prove the materiality of the

false statements.        Finding Fondren’s claims to be without merit,

we affirm.



                                            I.

      Viewed in the light most favorable to the government, the

evidence at trial established the following.                             In May of 1996,

Fondren retired from active duty as a Lieutenant Colonel in the

United   States    Air   Force.        In       1997    or       1998,   Fondren     started

working as a “National Security Policy Consultant.”                             JA630, 851.

His first and only client was Tai Shen Kuo, a businessman with

                                            3
ties to Fondren’s hometown of Houma, Louisiana.                             Fondren first

met Kuo in the early 1990s while in Houma visiting his family

for the holidays.

       In addition to owning and operating a restaurant in Houma,

Kuo    had   a    variety        of    business      interests,     including        selling

cotton,      linter,       and    automobiles        to    the   People’s    Republic     of

China (PRC or China).                  Kuo also performed consulting work in

China for several companies.                      In the course of his business

dealings in China, Kuo came to know an individual named Lin

Hong, a PRC government official.

       After a time, Lin began to cultivate Kuo as a source of

information         in    the     United    States.         Upon   learning      of    Kuo’s

association with Fondren, Lin asked Kuo to get Fondren to write

“opinion papers” on various topics selected by Lin.                             JA153-154,

158.     Kuo concealed Lin’s true affiliation with the PRC from

Fondren, instead telling Fondren that Lin worked at an “academic

institution         in    Hong     Kong”    and    was     doing   research      on    North

America.         JA153.         According to Kuo, he believed that Fondren

would be more willing to help if Fondren thought that he was

providing        information          to   someone    in    Hong   Kong,     rather     than

China.        Kuo     did,       however,    tell     Fondren      that   Lin    was    well

connected        to      the    Chinese     government       and    would     pass     along

Fondren’s ideas to the “Beijing central government.”                                  JA154.

Lin also used Fondren to get documents he wanted and, according

                                               4
to Kuo, the more confidential or sensitive the document appeared

to be, the more Fondren was paid.

     In 1999, Fondren traveled to China with Kuo, a trip that

was funded by Lin.          Fondren met Lin during this trip although he

remained    in   the    dark   regarding        Lin’s     true   identity.    After

Fondren’s    trip      to   China,   Lin       would    sometimes    email   Fondren

directly with his requests for information instead of using Kuo

as an intermediary.

     In August 2001, Fondren returned to government service and

began working in a civilian capacity at the Pentagon.                        JA197,

390-91.     There, he served as the Deputy Director of the Pacific

Command’s 1 Washington Liaison Office.                 JA391, 855.   As the Deputy

Director, Fondren was given a Top Secret security clearance like

the one he had when on active duty with the Air Force.                   JA855.

     Once Fondren returned to the Pentagon, he no longer had

direct contact with Lin, but he did not give up his consulting

arrangement with Kuo.           JA197-98.         He continued to provide Kuo

with “opinion papers” and documents.                   Prior to beginning his job

at the Pentagon, Fondren was paid by check and he reported the

income on his tax return.            Afterwards, however, Kuo paid him in



     1
        The Pacific Command, otherwise known as PACOM, is
comprised of U.S. armed forces covering the Asia-Pacific region.
It is based in Hawaii, but has a liaison office in the Pentagon.
JA391.


                                           5
cash only and he no longer reported the income to the Internal

Revenue Service.

       After Fondren started his Pentagon job in August 2001, Kuo,

acting      at    Lin’s       direction,          sought       to    mislead      Fondren      into

believing        that     Kuo       was     now    collecting         information        at     the

direction of a Taiwanese general.                          They assumed that Fondren

would be more willing to provide sensitive information if he

believed that it was going to Taiwan rather than to the PRC.

JA197-02.         On March 4, 2007, the FBI recorded a conversation

between      Fondren          and     Kuo    where       Fondren          acknowledged        these

requests     for    information             from       Kuo’s    “friend      in    Taiwan,     the

General.”        JA959.

       By   Kuo’s       own    admission,          there       was   no    agreement     between

Fondren and Kuo that Fondren would provide Kuo with classified

information.            JA227.        In fact, in order to slowly cultivate

Fondren, Kuo actually told him, on occasion, that he did not

want classified information.                       JA227-28.         Of course, Kuo hoped

that    Fondren     would,          eventually,         provide       him    with    classified

information.        Id.

       On August 10, 2007, FBI agents conducted a ruse interview

of     Fondren     in     an        effort    to       evaluate       the    nature      of     his

relationship with Kuo.                 JA308-315.          Fondren was initially told

that his assistance was being sought in connection with a



                                                   6
“sensitive national security matter” pertaining to the Pacific

Command.       JA309.      During the interview, Fondren brought up Kuo’s

name and told the agents all about Kuo and his business contacts

in Taiwan and China, but he never told them that he was writing

papers    for     Kuo     or   that     he    was     providing      Kuo    with     Defense

Department publications and documents.                   JA312-14.

       At the outset of the interview, the FBI advised Fondren

that     the      nature       of     the     interview       was     “sensitive”         and

“confidential” and that it was “a national security matter.”

JA314.     He was asked “not to discuss it outside of the room.”

Id.    Two days after the FBI interview, however, Fondren sent Kuo

an email in which he told Kuo of the “strange visit . . . by two

FBI guys who said that they were from Counter Intelligence.”

JA962.     Fondren told Kuo what he had said to them about Kuo.

“The   agents      only    wrote      down    only    [sic]   that     information        and

didn’t     take    notes       when    I     talked     about       Vietnam    and    other

Southeast Asia countries. . . . The discussion seemed to be in a

bizarre direction, so I wanted you to be aware of my surprise

visit in case you get a surprise also!”                    Id.

       On September 22, 2007, Kuo telephoned Fondren and asked him

to write more papers, including one on the topic of bilateral

meetings       between     PACOM    and      China.    JA963-66.       On     October     29,

2007, Fondren accessed a classified PACOM report, see Gov. Ex.

101,     and     cut     and    pasted        classified      information          from   it

                                               7
concerning the agenda for the meeting.                      Fondren then emailed the

classified passages to himself on his classified work computer

and    incorporated          this        information,        which    was      classified

CONFIDENTIAL, into an opinion paper that he wrote and emailed to

Kuo from his home on November 3, 2007.                       Gov. Exs. 102-1, 102-3;

JA204-205, 350-51.            It was this particular opinion paper that

was the basis of Count Five of the superseding indictment – the

one espionage count of which Fondren was convicted at trial.

       On February 11, 2008, FBI agents arrested Kuo in Fondren’s

Annandale, Virginia residence, where he was staying as a guest.

JA444.      A search of Fondren’s home computer uncovered a number

of past email communications with Kuo and Lin.                         JA451-58.       The

agents also discovered Kuo in possession of a draft document

entitled “The National Military Strategy of the United States of

America 2008, Version 5,” which Fondren had given him. JA209-11,

476-77, 977.         It was marked “Pre-Decisional Working Document –

DDS&P Close Hold.”             JA978.       The document had been emailed to

Fondren’s work computer by a colleague at the Pentagon.                            JA979-

80.

       On the same day Kuo was arrested, Fondren was interviewed

by    FBI   agents      at   his    workplace       in     the   Pentagon.      JA444-45.

Fondren     made    a   number      of    false     statements      pertaining    to   his

involvement        in    providing        Kuo       with    classified       information.

Fondren falsely told the agents that everything he had written

                                                8
for Kuo in his opinion papers had been based on information from

press and media reports and from his experience and that he was

sure he had never included any classified information in any of

the papers he had written for Kuo.                  JA463-64.     This was the

charge in Count Six.

      Fondren also falsely told the agents that he had not given

Kuo a draft copy of the National Military Strategy of the United

States, the document that the FBI had earlier found in Kuo’s

possession   when   he   was       arrested   in   Fondren’s    house.     JA477.

This was the charge in Count Eight.

      In May 2008, in the United States District Court for the

Eastern District of Virginia, Kuo pled guilty to conspiracy to

communicate national defense information to a foreign government

(the PRC), in violation of 18 U.S.C. § 794 (a) & (c). 2                  JA136-37;

see   also   Judgment    in    a    Criminal   Case,    1:08cr00179.       He   was

subsequently sentenced to a term of imprisonment of 188 months.

Id.

                                        II.

      On August 27, 2009, a federal grand jury in Alexandria,

Virginia returned an eight-count superseding indictment charging

Fondren with conspiracy to act as an unregistered agent of a


      2
       The conspiracy charge to which Kuo pleaded guilty did not
involve Fondren. JA136.



                                         9
foreign    government        (18   U.S.C.         §    951)     and    to     commit       honest

services wire fraud (18 U.S.C. §§ 1343 & 1346), in violation of

18 U.S.C. § 371 (Count One); aiding and abetting an agent of a

foreign    government,       in    violation          of   18   U.S.C.        §§    951    and   2

(Count Two); unlawful communication of classified information by

a   government        employee,    in    violation         of     50    U.S.C.       §     783(a)

(Counts Three through Five); and false statements to agents of

the FBI, in violation of 18 U.S.C. § 1001 (Counts Six through

Eight).

      A   jury       trial   began      on    September          21,     2009.            At   the

conclusion      of     the   government’s         case,       the     court        granted     the

defendant’s motion for judgment of acquittal with respect to

Counts One and Two of the superseding indictment but denied the

motion    as     to    the    other      counts.           The        court    also        denied

defendant’s renewed motion and sent the remaining counts to the

jury.     On September 25, 2009, the jury returned its verdict

finding Fondren guilty on Counts Five, Six and Eight.                                 The jury

acquitted Fondren on Counts Three, Four, and Seven.                                 On January

22,     2010,    the     district       court         departed        from    the     advisory

guidelines range of 63 to 78 months and sentenced Fondren to a

term of imprisonment of 36 months, to be followed by two years

of supervised release.




                                             10
                                            III.

       This court reviews the denial of a Rule 29 motion de novo.

United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005),

cert.     denied,       547   U.S.     1113        (2006).          In     reviewing      the

sufficiency of the evidence following a conviction, the court is

to construe the evidence in the light most favorable to the

government, assuming its credibility, and drawing all favorable

inferences from it, and will sustain the jury’s verdict if any

rational trier of fact could have found the essential elements

of the crime charged beyond a reasonable doubt.                                  Jackson v.

Virginia,      443     U.S.   307,    319     (1979)       (emphasis       in    original);

United States v. Lomax, 293 F.3d 701, 705 (4th Cir.), cert.

denied, 513 U.S. 1135 (2002).                “If there is substantial evidence

to support the verdict, after viewing all of the evidence and

the    inferences       therefrom     in    the    light     most    favorable      to    the

Government,” the court must affirm.                  United States v. Murphy, 35

F.3d    143,    148    (4th   Cir.    1994),       cert.     denied,       513   U.S.    1135

(1995).         Furthermore,         this    court        “cannot        make    [its]    own

credibility          determinations        but     must    assume        that     the    jury

resolved       all    contradictions        in     testimony        in     favor    of    the

Government.”          United States v. United Med. & Surgical Supply

Corp., 989 F.2d 1390, 1402 (4th Cir. 1993).




                                             11
                                                IV.

      Fondren contends that his conviction on Count Five must be

set aside because there was insufficient evidence to show that

Fondren knew the person to whom he was communicating classified

information         was     an    agent    or     representative            of   any     foreign

government.          In order to establish the offense proscribed by 50

U.S.C.     §    783(a), 3        the   Government          had   to   prove      each    of    the

following elements beyond a reasonable doubt:                               1) that Fondren

was   an       officer      or    employee       of    the       United     States      or    some

department          or    agency       thereof;       2)    that      the   information        he

knowingly communicated was classified within the meaning of the

statute;       3)    that    Fondren      knew    or       had   reason     to   believe       the


      3
           Section 783(a) of Title 50 of the United States Code

provides, in part, that:

      It shall be unlawful for any officer or employee of
      the United States or of any department or agency
      thereof, . . . to communicate in any manner or by any
      means, to any other person whom such officer or
      employee knows or has reason to believe to be an agent
      or representative of any foreign government, any
      information of a kind which shall have been classified
      by the President (or by the head of any such
      department, agency, or corporation with the approval
      of the President) as affecting the security of the
      United States, knowing or having reason to know that
      such information has been so classified, unless such
      officer or employee shall have been specifically
      authorized by the President, or by the head of the
      department, agency, or corporation by which this
      officer or employee is employed, to make such
      disclosure of such information.


                                                12
person to whom the information was communicated was an agent or

representative of a foreign government; and 4) that Fondren knew

or had reason to know that the information communicated had been

classified as affecting the security of the United States.                              It

is    the    third    element    on     which    Fondren     contends    there    was    a

failure of proof.

       The term “agent or representative of a foreign government”

means an individual who operates subject to the direction or

control      of   a   foreign     government      or    official.        There    is    no

requirement that a defendant know the identity of the particular

foreign government on whose behalf the agent or representative

to whom the defendant communicated classified information was

acting.      The government need only prove that a defendant knew or

had reason to believe that the person to whom he communicated

classified information was an agent or representative of any

foreign government.

       According      to   defendant,       there      was    no   evidence     that    he

communicated information to someone he knew or had reason to

believe was an agent or representative of a foreign government.

Defendant argues that there was absolutely no evidence that he

knew    or    had     reason     to    believe    that       Kuo   was   an    agent    or

representative of a foreign government and that any finding that

he was is precluded by the district court’s acquittal on Counts

One    and     Two    of   the        superseding      indictment.        As     to    the

                                            13
government’s theory regarding the Taiwanese general, defendant

argues       that     this        argument     fails     because          there       was    no

communication with such a person.

       As to Count Five, the evidence at trial showed that Fondren

accessed      a     classified      computer        system   and     copied       classified

information from a PACOM End of Day Update.                          Gov. Ex. 101; JA

350-51.       He then inserted this classified information into an

opinion paper that he emailed to Kuo.                        JA204-05, 350-51, 967;

Gov.   Ex.    102-3.         Furthermore,       the    evidence      is    abundant         that

Fondren knew or had reason to believe that Kuo would pass the

information along to the Taiwanese general.                        JA643-45, 949, 955-

57, 959-60.         Instead, Kuo gave the opinion paper containing the

classified information to Lin, a government official for the

People’s Republic of China.               JA204-05.

       The    evidence       in    the   record     shows    that,    once       he    started

working at the Pentagon, Fondren was giving information to Kuo

and he thought Kuo was passing it along to a Taiwanese general.

JA643-45, 949, 955-57, 959-60.                      Because the Taiwanese general

did not exist, Fondren argues that he cannot be convicted of

espionage based upon the Taiwanese general being the “person”

within       the     meaning       of    the    statute      because        he        did    not

“communicate”          classified         information         to      this         “person.”

However, as the jury was instructed, there is no requirement

that the government prove the defendant knew the identity of a

                                               14
particular     foreign      government       on   whose   behalf         the       agent   or

representative      to     whom    the   defendant     communicated            classified

information was acting.            The government need only prove that the

defendant knew or had reason to believe that the person to whom

he     communicated      classified         information       was        an    agent       or

representative of any foreign government.

       In this case, the Taiwanese general was really a cover for

Lin, the person who ultimately received the information.                                   Kuo

was    the    “manner”     or     “means”    by   which      the    information            was

communicated.       So, contrary to Fondren’s assertion, a “person”

did receive the information.                Furthermore, while it is arguable

that Fondren was deceived about the identity of the person to

whom    the    information        was    being    conveyed         and    the       foreign

government on whose behalf he was working, i.e., Lin and the

PRC, the evidence is abundant that Fondren was aware that he was

passing classified information to an agent or representative of

a foreign government.           Deception, lies, and false identities are

the hallmarks of espionage and Fondren cannot shield himself

from    liability     by    arguing      that     he   was    misled          as    to     the

particulars of the foreign government.                    The statute does not

carve out such an exception.             As Fondren himself acknowledged in

an email to Lin:           “The U.S. must not forget that international

spying is commonplace . . . in fact, every nation spys [sic] on

every other nation.             If the U.S. wants to keep secrets safe,

                                            15
then it must be more vigilant in its security procedures to

safeguard knowledge from international theft.”                   JA877 (Gov. Ex.

32).

        There is also evidence to support a theory that Kuo, acting

as the agent or representative of the Taiwanese general, was the

“person” to whom the classified information was communicated.

However, according to Fondren, when the district court granted

its motion for judgment of acquittal as to Counts One and Two,

it made a finding that “there just simply isn’t any evidence,

other    than   some    bit    of   communication      toward    the    end   of    the

conspiracy, that would have given any inclination that Kuo was a

representative     of    a     foreign    power.”       JA540.         According     to

Fondren, that “finding” actually and necessarily decided that

Kuo was not a foreign agent or government.               Fondren is wrong.

        A thorough reading of the record shows that the district

court’s ruling on defendant’s motion for judgment of acquittal

was not as sweeping as Fondren would have this court believe.

Fondren’s acquittal on those counts is not inconsistent with a

conviction on Count Five.            The wrongdoing charged in Counts One

and    Two   allegedly       spanned     from   1997   through     February        2008

whereas the crime charged in Count Five occurred in November

2007.     In addition, the court specifically qualified its ruling

by saying “other than some bit of communication toward the end

of the conspiracy.”           Furthermore, the district court, who was in

                                          16
the    best      position       to    understand      the   scope     and    basis    of    its

ruling,       specifically           denied   Fondren’s      motion    for       judgment    of

acquittal         on    the     espionage     counts,       finding     that      there     was

sufficient evidence for those counts to go to the jury.

       For       all    these      reasons,    this    court    concludes         there     was

sufficient evidence for the jury to have concluded that Fondren

knew       the    person        to    whom    he    was     communicating         classified

information            was    an     agent    or    representative          of    a   foreign

government.



                                               V.

       Fondren also challenges his conviction on Counts Six and

Eight of the superseding indictment, both of which charged him

with making false statements to the FBI, in violation of 18

U.S.C. § 1001. 4

       To prove a violation of § 1001, the Government must
       establish that “(1) the defendant made a false
       statement to a governmental agency or concealed a fact
       from it or used a false document knowing it to be
       false,   (2)   the  defendant   acted  `knowingly   or
       willfully,’ and (3) the false statement or concealed
       fact was material to a matter within the jurisdiction
       of the agency.”

       4
       That statute provides that “whoever, in any matter within
the jurisdiction of the executive . . . branch of the Government
of the United States, knowingly and willfully . . . makes any
materially false . . . statement or representation [shall be
guilty of an offense].” 18 U.S.C. § 1001(a)(2).




                                               17
United States v. Ismail, 97 F.3d 50, 60 (4th Cir. 1996) (quoting

United States v. Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir.

1993) (citation omitted)).

     According to defendant, the government failed to carry its

burden with respect to the third element in that it failed to

prove    that   Fondren’s    statements      to    the   FBI   were    material.

Specifically,    defendant    contends      “the    government   presented       no

evidence of any influence that the statements could have had on

the investigation, and therefore failed to prove materiality.”

Brief of Appellant at 32-33.        This court disagrees.

     The     materiality    inquiry    focuses      on   whether      the    false

statement had a “natural tendency to influence, or was capable

of influencing, the decision of the decisionmaking body to which

it was addressed.”       Kungys v. United States, 485 U.S. 759, 770

(1988)     (internal   quotations     and    citations     omitted).        If   a

statement has a natural tendency to influence or is capable of

influencing a decision or action, “[i]t is irrelevant whether

the false statement actually influenced or affected the decision

making process of the agency or fact finding body.”                         United

States v. Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998).

     According to the Supreme Court:

     Deciding whether a statement is                “material” requires
     the determination of at least two             subsidiary questions
     of purely historical fact: (a)                “what statement was
     made?” and (b) “what decision was             the agency trying to

                                      18
        make?”   The  ultimate   question: (c) “whether the
        statement was material to the decision,” requires
        applying the legal standard of materiality (quoted
        above) to these historical facts.

United States v. Gaudin, 515 U.S. 506, 512 (1995); see also

United States v. Finn, 375 F.3d 1033, 1038 (10th Cir. 2004).

Under this framework, it is clear that the evidence presented by

the   government   in   this    case   was   sufficient    for    the    jury   to

reasonably     conclude   that     Fondren’s      false    statements         were

material.

      Special Agent Robert Gibbs with the FBI served as the case

agent for the investigation and testified at Fondren’s trial.

JA443.     Special Agent Gibbs testified that the FBI had started

investigating Fondren in November 2005 and that, as the case

agent, he was “the lead investigator on the case responsible for

all aspects of the case, administrative, operational.”                    JA443-

44.     Gibbs also participated in the FBI’s investigation of Kuo.

JA444.

      Special Agent Gibbs testified that he and Special Agent

Paula Paulk conducted the interview of Fondren on February 11,

2008.       JA444-45.     The    agents      initiated    the     interview     by

informing Fondren that, just that morning, Kuo had been arrested

and charged with espionage.        JA446-47.      Fondren was not informed

that he was suspected of any criminal activity.                 JA447.   Indeed,

according to Gibbs:


                                       19
        We wanted Mr. Fondren to think that the investigation
        was solely focused on Mr. Kuo. We actually told him,
        because as he knew, Mr. Kuo had contacts all over the
        country, that we had actually dispatched agents
        truthfully nationwide to speak to Mr. Kuo’s contacts.
        We had been given the task of talking to Mr. Fondren
        to determine what the nature of his relationship was
        with Mr. Kuo.

Id.

      During the interview, the FBI questioned Fondren regarding

Lin Hong.           JA449-59.      Fondren voiced his suspicions that Lin

might be a member of the People’s Liberation Army.                           JA459.      As

to the opinion papers, Fondren told the investigators that Kuo

would tell him “someone in Taiwan . . . wanted to know about a

certain topic, and then in response to that, [ ] Fondren would

write an opinion paper.”                  JA460.     Agent Gibbs testified that,

when asked whether he ever included classified information in

any of those opinion papers, Fondren stated he never provided

classified information.              JA463-64.           Fondren also denied having

given    Kuo    a    copy    of    “The    National      Military     Strategy    of    the

United States of America 2008, Version 5.”                       JA476-77.       However,

when Kuo was arrested in Fondren’s home, the document was found

in Kuo’s room.         Id.

      The      interview      of    Fondren        continued     on    the   next      day,

February 12, 2008.            On that day, the FBI informed Fondren that

they had reason to believe Lin was actually associated with the

PRC     government      and       that    Kuo      had    been   providing       all   the


                                             20
information he received from Fondren to Lin.                          JA489.    According

to Gibbs, Fondren responded that “his intuition must have been

correct, that Mr. Lin was most likely PLA, People’s Liberation

Army,   and   most       likely      in    an    intelligence       branch     or   foreign

ministry.”       Id.

      As to the “what statement was made?” inquiry under Gaudin,

the   evidence         showed     that     Fondren       made   the    following      false

statements:            (1)      that      he     had    never    included      classified

information in any of the papers he wrote for Kuo (Count 6); and

(2) that he had not given a draft copy of “The National Military

Strategy of the United States of America 2008, Version 5” to Kuo

(Count 8).       The evidence was also sufficient to allow the jury

to determine what “decision” the FBI was trying to make, that

is,   it   was    in     the      midst    of    an     investigation    regarding      the

criminal    activity         of   both     Kuo    and    Fondren.      Furthermore,      an

application of the legal standard of materiality to those facts

leads to the reasonable conclusion that the false statements had

the natural tendency to influence or were capable of influencing

the FBI’s investigation.               A rational trier of fact could easily

conclude that false statements, given during the course of an

espionage     investigation,           concerning         the   source   or    nature    of

materials given to an alleged spy had a “natural tendency” to

influence the investigation or was “capable” of doing so.



                                                21
      Fondren’s contention that this court’s decision in United

States v. Ismail, 97 F.3d 50, 60 (4th Cir. 1996), compels the

opposite conclusion is without merit.                    In Ismail, this court

reversed a conviction under § 1001, finding that the government

had failed to prove the materiality of the false statement.                      See

id. at 60-61.      In that case, the defendant had provided a false

name and social security number on a bank signature card.                        The

government, however, by its own admission, offered no evidence

(or argument for that matter) regarding how a false name and

social security number on a bank signature card had a natural

tendency to influence or was capable of influencing the FDIC.

See id. at 61.         This case is distinguishable from Ismail in that

there is ample circumstantial evidence from which the jury could

have inferred the materiality of the false statements.

      We also reject Fondren’s argument that the statements were

not   material    because     the    FBI    investigators       already   knew    the

answers   to     the     questions      they     asked   him.       “It   is     well

established law in this Circuit that a finding of materiality is

not   dependent        upon   whether      the    fact    finder    was   actually

influenced by a defendant’s false statements.”                   United States v.

Sarihifard, 155 F.3d 301, 307 (4th Cir. 1998); see also United

States v. Turner, 551 F.3d 657, 664 (7th Cir. 2008) (holding

that defendant’s “statements to the FBI probably had very little

actual influence on the agents because there were already in

                                           22
possession of incriminating [information]” . . . but, because

“statements were aimed at misdirecting the agents, . . . [it

was] enough to satisfy the materiality requirement of § 1001”)

(emphasis in original); United States v. White, 270 F.3d 356,

365 (6th Cir. 2001) (“If the false statements are received by an

agency, they may be material even if the receiving agent or

agency knows that they are false.”); United States v. Foxworth,

2009 WL 1582923, *3 (2d Cir. June 8, 2009) (“That the FBI knew

that the statements were false when they were made is irrelevant

to their materiality.”) (unpublished).

     The     Supreme     Court    has    confirmed   that    the    test   for

materiality does not turn on whether the false statements were

believed by the party to whom they were made.

     Certainly 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 subject of the investigation
     perverts that function. It could be argued, perhaps,
     that a disbelieved falsehood does not pervert an
     investigation. But making the existence of this crime
     turn   upon   the    credulousness  of   the   federal
     investigator (or the persuasiveness of the liar) would
     be exceedingly strange. . . .

Brogan v. United States, 522 U.S. 398, 402 (1998) (emphasis in

original).

     Likewise, Fondren’s argument that the statements could not

be   material    given     that    the    investigation     was    essentially

complete when the statements were made misses the mark.                    The


                                         23
statements need only be capable of influencing the FBI; it is

not necessary that they actually influenced the agency in this

particular case.          See United States v. McBane, 433 F.3d 344,

350-52   (3d    Cir.     2005)     (rejecting       defendant’s    arguments    that

false statements to FBI investigators were not material within

the   meaning       of   18    U.S.C.   §    1001   because     investigation    was

complete when statements were made).

      Finally, to the extent Fondren argues that his conviction

under 18 U.S.C. § 1001 should be set aside because he corrected

his false statements the day after they were made, that argument

is without merit.             “There is no safe harbor for recantation or

correction     of    a   prior    false     statement    that    violates   section

1001.”    United States v. Stewart, 433 F.3d 273, 318 (2d Cir.

2006); see also United States v. Beaver, 515 F.3d 730, 742 (7th

Cir. 2008); United States v. Sebaggala, 256 F.3d 59, 64 (1st

Cir. 2001); United States v. Meuli, 8 F.3d 1481, 1486-87 (10th

Cir. 1993); United States v. Salas-Camacho, 859 F.2d 788, 791-92

(9th Cir. 1988); United States v. Fern, 696 F.2d 1269, 1275

(11th Cir. 1983).



                                            VI.

      For the foregoing reasons, we affirm Fondren’s convictions.

                                                                            AFFIRMED



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