                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                          May 23, 2008
                                     No. 05-17156                       THOMAS K. KAHN
                               ________________________                     CLERK


                      D. C. Docket No. 05-00030-CR-3-RDP-TMP

UNITED STATES OF AMERICA,


                                                                          Plaintiff-Appellee,

                                            versus

BENJAMIN HORACE RICHEY,

                                                                       Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________

                                       (May 23, 2008)


Before DUBINA and BARKETT, Circuit Judges, and SCHLESINGER,* District
Judge.

___________________
        *Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation..
PER CURIAM:

       Benjamin Richey appeals his conviction for knowingly making a materially

false statements to federal agents in the course of an investigation, in violation of

18 U.S.C. § 1001. The indictment against Richey alleged that, on or about

November 6, 2003, Richey falsely represented to Federal Bureau of Investigation

(“FBI”) agents that his client Eric Humphries’s payment of $6,500.00 to the

Franklin County District Attorney’s Fund was not related to the favorable

settlement of Humphries’s criminal case. He argues that the indictment against

him should have been quashed because the FBI lacked jurisdiction over the matter

of his false statements and judicial estoppel1 barred federal prosecution of him for

his offense conduct. Therefore, he contends that the district court erroneously

denied his motion to quash and motion for new trial.

                                                I.

       Whether a defendant’s criminal conduct was prosecutable under 18 U.S.C.

§ 1001 is a question of law subject to de novo review. United States v. Lawson,

809 F.2d 1514, 1517 (11th Cir. 1987). With respect to reviewing denial of a

motion for new trial, we review the denial for abuse of discretion. United States


       1
          During the district court proceedings, Richey did not specifically identify his argument
as being based on the principles of judicial estoppel. However, he explicitly identifies judicial
estoppel as the basis for his argument on appeal. Accordingly, we analyzed his appeal on this
basis without consideration of arguments related to entrapment by estoppel or equitable estoppel.

                                                2
v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc).

      Section 1001 of Title 18 of the United States Code punishes any person who

knowingly and willfully:

      (1) falsifies, conceals, or covers up by any trick, scheme, or device a
      material fact; (2) makes any materially false, fictitious, or fraudulent
      statement or representation; or (3) makes or uses any false writing or
      document knowing the same to contain any materially false, fictitious,
      or fraudulent statement or entry.

18 U.S.C. § 1001(a). We have recognized that the purpose of § 1001 is to prevent

misrepresentations to the federal government and protect the integrity of official

inquiries. United States v. London, 714 F.2d 1558, 1561-62 (11th Cir. 1983). We

have held that violation of § 1001 requires the proof of five elements: (1) a

statement; (2) falsity; (3) materiality; (4) specific intent; and (5) agency

jurisdiction. Lawson, 809 F.2d at 1517.

      The Supreme Court has emphasized that “the term ‘jurisdiction’ should not

be given a narrow or technical meaning for purposes of § 1001.” Bryson v. United

States, 396 U.S. 64, 70, 90 S. Ct. 355, 359, 24 L.Ed.2d 264 (1969). The Court

concluded that “[a] statutory basis for an agency’s request for information provides

jurisdiction enough to punish fraudulent statements under § 1001.” Id. at 71, 90

S. Ct. at 359. More recently, in United States v. Rodgers, 466 U.S. 475, 479,

104 S. Ct. 1942, 1946, 80 L.Ed.2d 492 (1984), the Court explained that agency



                                            3
jurisdiction “covers all matters confided to the authority of [a federal] agency or

department . . . . A department or agency has jurisdiction, in this sense, when it

has power to exercise authority in a particular situation.”

      We have held that a false statement is material if it “has a natural tendency

to influence or be capable of influencing the government agency or department in

question.” Lawson, 809 F.2d at 1520. We have noted that proof of actual

influence is not required. Id.

      The record here demonstrates that the FBI was legitimately investigating

potential violations of the Hobbs Act, 18 U.S.C. § 1951, committed by a local

district attorney based on his alleged extortion of money from criminal defendants

with regard to plea agreement negotiations, pursuant to its statutory authority,

when it interviewed Richey. Thus, the FBI had a statutory basis upon which to

inquire information from Richey, establishing § 1001’s jurisdictional element.

Further, the record demonstrates that Richey made one or more false statements to

the FBI during its investigation. Although his false statements apparently did not

impede the FBI’s investigation, they could have affected the FBI’s decision to

continue investigation or prosecution of the matter. Therefore, the false statements

were material. Accordingly, Richey’s conduct was prosecutable under § 1001, and

the district court properly denied Richey’s motions to quash the indictment and for



                                           4
a new trial on this basis.

                                          II.

      We review a district court’s application of judicial estoppel for abuse of

discretion. Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1284 (11th Cir. 2002).

      “Judicial estoppel bars a party from asserting a position in a legal proceeding

that is inconsistent with its position in a previous, related proceeding.” United

States v. Campa, 459 F.3d 1121, 1152 (11th Cir. 2006). In determining whether to

apply the doctrine, the district court should consider: (1) whether the allegedly

inconsistent position was made under oath in a prior proceeding; and (2) whether

the inconsistency was calculated to make a mockery of the judicial system. Id.

(quotations omitted).

      After reviewing the record, reading the parties’ briefs, and having the benefit

of oral argument, we conclude that Alabama’s acceptance of Richey’s client’s plea

agreement, based on allegedly improper negotiations, did not judicially estop the

federal government from prosecuting Richey for the false statements he made to

the federal government regarding the plea negotiations. Accordingly, we affirm

Richey’s conviction.

      AFFIRMED.




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