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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 22, 2013
                                       No. 11-60828
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

JAMES SMITH,

                                                  Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:10–CR–53–1


Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
       James Smith appeals his conviction based on 18 U.S.C. § 1001, which
prohibits, among other things, making “any materially false . . . statement or
representation” in “any matter within the jurisdiction” of the United States
government. § 1001(a)(2). Smith contends that his conduct was not punishable
under § 1001 because it did not fall within the jurisdiction of the United States
government or materially influence an authorized governmental function. We
conclude that sufficient evidence supports the jury’s verdict and, therefore,
AFFIRM the district court’s judgment.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-60828

                                        I.
      This case involves Smith’s alterations to certain commercial driver’s
license (“CDL”) holders’ driving records, which are part of the federally-
established Commercial Driver’s License Information System (“CDLIS”). See
49 U.S.C. § 31309. Established at Congress’s direction, the CDLIS “serve[s] as
a clearinghouse and depository of information pertaining to the licensing and
identification of operators of commercial motor vehicles and the disqualification
of such operators from operating commercial motor vehicles.” Commercial Motor
Vehicle Safety Act of 1986, Pub. L. No. 99-570, title XII, § 12007, 100 Stat.
3207–175 (1986) (codified as amended at 49 U.S.C. § 31309(a)). The Federal
Motor Carrier Safety Administration (“FMCSA”), a division of the Department
of Transportation, is responsible for the development and oversight of the
CDLIS. See 49 U.S.C. § 113; 49 C.F.R. § 384.225. Robert Redmond, an FMCSA
specialist who testified as an expert at trial, explained that the CDLIS is a
national computer-based system in which states input the records of their CDL-
licensed drivers. If a state chooses to participate in the CDLIS—as all states and
the District of Columbia currently do—it must comply with certain minimum
standards or risk losing up to ten percent of its federal highway funding. See 49
U.S.C. §§ 31309, 31311(a), 31314. FMCSA periodically audits states’ compliance
with the minimum standards. See 49 C.F.R. §§ 384.225, 384.301, 384.307.
      FMCSA has an agreement with and provides funds to the American
Association of Motor Vehicle Administrators (“AAMVA”) to operate the CDLIS
network.   AAMVA also issues the CDLIS State Procedures Manual (the
“Manual”), which the federal regulations incorporate, see 49 C.F.R. § 384.107,
and the Code Dictionary (“ACD”), which states use to translate traffic offense


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                                  No. 11-60828

convictions into a uniform format. Cf. 23 C.F.R. Pt. 1327, App. A (setting out an
abridged listing of the AAMVA codes). Together, the Manual and ACD set forth
the information that states must enter into the CDLIS, such as a jurisdiction
code, offense code, and the date and state in which a CDL-holder was cited for
and convicted of a traffic violation. This information helps ensure that the
CDLIS accurately reflects the driving records of CDL-holders.
      FMCSA uses a points system in the CDLIS with four categories of
disqualifying offenses, that is, traffic violations for which a person may have his
CDL license suspended or removed. Some offenses result in a loss of points only
if the CDL holder was driving a commercial vehicle, while others carry a penalty
even if the CDL holder was driving a noncommercial vehicle. Redmond testified
that, “[i]n many states, including Mississippi, if the person who has a CDL is
driving a noncommercial vehicle and that offense is considered in that state to
be a disqualifying offense, it does become a serious traffic violation and count
against the CDL record.”      Redmond further explained that serious traffic
violations include driving more than fifteen miles per hour over the speed limit,
making erratic lane changes, or driving recklessly. These violations carry a
penalty of 60 to 120 days of CDL disqualification.
      Mississippi participates in the CDLIS through the Mississippi Department
of Public Safety (the “Department”). From 2005 to 2010, Smith served as the
Director of Driver Records for the Department.         In that role, Smith was
responsible for overseeing the records of persons holding CDL licenses and had
the ability to access and change driver records. Certain tips led law enforcement
to investigate Smith’s conduct and a grand jury ultimately charged him with
violating 18 U.S.C. §§ 1001 and 1002 by falsifying information in seven CDL


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                                      No. 11-60828

holders’ driving records. Smith moved to dismiss the indictment “for lack of
Federal jurisdiction over the conduct . . . as alleged in the Indictment.” The
district court denied Smith’s motion, concluding that Smith’s jurisdictional
argument presented “a question of fact.”
        The case proceeded to a five-day jury trial. The government introduced
computer records and testimony to show that Smith altered:
        •      Robert Rawls’s driving record, by changing Rawls’s speeding
               conviction from eighty-two miles per hour to seventy-two miles per
               hour in a sixty-five mile-per-hour zone;
        •      Larry Parker’s driving record, by not only changing a speeding
               conviction from eighty-one miles per hour to seventy-one miles per
               hour in a sixty-five mile-per-hour zone, but also deleting a code
               intended to denote that Parker was convicted of two serious driving
               offenses within a three-year period;
        •      Delman Davis’s driving record, by not only changing a speeding
               conviction from forty miles per hour to thirty-five miles per hour in
               a twenty-five mile-per-hour zone, but also deleting a code intended
               to denote that Davis was convicted of three serious driving offenses
               within a three-year period; and
        •      Ance Cascio’s driving record, by changing guilty dispositions for
               speeding and running a stop sign to show that Cascio attended
               defensive driver’s school, which had the effect of removing a
               notation that Cascio’s license was suspended.
The jury heard testimony that Cascio was an acquaintance of Smith’s, and that
the alterations to Rawls and Parker’s CDL records occurred shortly after one of
their       relatives—a   former     state    trooper     with    whom       Smith     once
worked—contacted Smith about the violations.1

        1
         The government also introduced testimony in support of one count for changing Leslie
Lampton’s driving record to show “not guilty” on a speeding citation rather than “pending
disposition,” and two counts for adding a Passenger Endorsement to Joseph Pierce and Barry
McCool’s CDL licenses even though they did not complete the examination necessary for that

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                                    No. 11-60828

      The government also introduced testimony to show that Smith’s actions
fell “within the jurisdiction” of the United States government, as required for
liability under 18 U.S.C. § 1001. Redmond testified that FMCSA not only audits
states’ compliance with federal standards, but also provides grant funds to help
states develop and improve their driver’s license databases. Testimony from the
Department’s employees was consistent with Redmond’s account. For example,
the computer programmer in charge of maintaining the Department’s driver’s
license database acknowledged that the database is “federally mandated” and
“hooked up to the federal system,” observing that one of her responsibilities was
to “make sure that our programs are in federal compliance.” The programmer
also testified that FMCSA audited the Department’s database in 2004 and 2007,
requiring her to take corrective action on each occasion.                  Finally, two
Department employees, including Smith, testified that in 2008 the Department
applied for and received federal funds to deal with a backlog of CDL tickets.
      At the close of the government’s case-in-chief, Smith moved for acquittal.
He asserted that the evidence was insufficient to show that his actions fell
“within the jurisdiction” of the United States government or were material. The
district court denied the motion and Smith proceeded to present his defense.
      Smith acknowledged that he altered the speeding records for Rawls,
Parker, and Davis, but testified that he did so only to restore driving privileges
that he thought had been wrongfully suspended. According to Smith, tickets
involving speeds greater than fifteen miles per hour over the speed limit should
not have resulted in CDL disqualification, but such disqualifications were
occurring. Smith denied making any changes to Cascio’s driving record.




endorsement. The jury ultimately found Smith not guilty on these counts.

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                                 No. 11-60828
      After the close of the evidence, Smith once again moved unsuccessfully for
a judgment of acquittal. The jury found Smith guilty on four counts, and the
district court sentenced him to three year’s probation and ordered him to pay a
$400 special assessment. Smith timely appealed.
                                       II.
      We review de novo the district court’s denial of a properly preserved
motion for judgment of acquittal. United States v. Vasquez, 677 F.3d 685, 692
(5th Cir. 2012) (citing United States v. Campbell, 52 F.3d 521, 522 (5th Cir.
1995)). Our “[r]eview is ‘highly deferential to the verdict,’ asking ‘whether the
evidence, when reviewed in the light most favorable to the government with all
reasonable inferences and credibility choices made in support of a conviction,
allows a rational fact finder to find every element of the offense beyond a
reasonable doubt.’” United States v. Richardson, 676 F.3d 491, 501 (5th Cir.
2012) (quoting United States v. Najera Jimenez, 593 F.3d 391, 397 (5th Cir.
2010)). Therefore, “[a] motion for acquittal should be granted if the government
fail[ed] to present evidence sufficient for a reasonable jury to have found that
each essential element of the offense was established beyond a reasonable
doubt.” Vasquez, 677 F.3d at 692 (citing United States v. Ortega Reyna, 148 F.3d
540, 543 (5th Cir. 1998)).
                                       III.
      Smith contends that there is insufficient evidence to sustain his conviction
based on 18 U.S.C. § 1001(a). Section 1001(a) imposes criminal liability on
“whoever, in any 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
representation.” 18 U.S.C. § 1001(a)(2). Under this provision, the government
must prove five elements to obtain a conviction: “(1) a statement, (2) falsity,

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                                        No. 11-60828
(3) materiality, (4) specific intent, and (5) agency jurisdiction.” United States v.
Montemayor, 712 F.2d 104, 106 (5th Cir. 1983) (quoting United States v. Baker,
626 F.2d 512, 514 (5th Cir. 1980)).
       Smith contests only two elements of his charge: agency jurisdiction and
materiality. We conclude that both of his arguments are unpersuasive.
                                               A.
       Smith first asserts that his actions did not fall “within the jurisdiction” of
the United States government because FMCSA has no authority to take any
action with respect to data entered into a state database connected to the
CDLIS, nor any power to punish persons who make fraudulent entries. In
support of his argument, Smith largely relies on cases from outside our circuit.2
The government responds that this case is distinguishable from the cases Smith
relies on and his conviction is proper under our decision in United States v.
Taylor, 582 F.3d 558, 562–64 (5th Cir. 2009). We agree that this case falls
within Taylor.3


       2
         In particular, Smith focuses on a Ninth Circuit decision that the Sixth Circuit has
followed. See United States v. Facchini, 874 F.2d 638, 641 (9th Cir. 1989) (en banc)
(interpreting the jurisdictional limitation in § 1001 to require a “direct relationship” between
a false statement and an authorized federal governmental function, and reversing a § 1001
conviction based on a false statement made to a state unemployment insurance agency
because the Department of Labor had no authority to act on information provided to the state
agency or punish individuals who furnished false information); United States v. Holmes, 111
F.3d 463, 466 (6th Cir. 1997) (adopting the Ninth Circuit’s reasoning to reach the same
conclusion on essentially the same facts).
       3
          Smith’s reliance on Facchini and Holmes is unavailing. First, even if we found
Smith’s argument compelling, we are bound by our precedent unless a decision of the Supreme
Court or this court sitting en banc overrules it. See Jacobs v. Nat’l Drug Intelligence Ctr., 548
F.3d 375, 378 (5th Cir. 2008) (citation omitted). Moreover, one of our sister courts has
explicitly rejected the reasoning in Facchini, which Holmes adopted. See United States v.
Herring, 916 F.2d 1543, 1546 (11th Cir. 1990) (rejecting “the Ninth Circuit’s narrow and
technical definition of section 1001 jurisdiction”). Finally, although we need not pass on
whether Holmes and Facchini are good law, we note that their reasoning—namely, that
jurisdiction in § 1001 means that “a direct relationship obtains between the false statement

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                                        No. 11-60828
       We recognized in Taylor that a false statement may fall “within the
jurisdiction” of a federal agency if it has the potential to “contravene[] the intent”
of an agency program. See id. at 563–64. There, a defendant made false
statements to a state disaster relief agency to wrongfully access funds that a
federal agency furnished. Id. at 561. A jury found the defendant guilty under
§ 1001(a)(2) and he appealed, contending in part that his false statement did not
satisfy the jurisdictional element because he made the statement to a state
agency with limited federal oversight. Id. at 562. We construed the defendant’s
argument as “a challenge to the sufficiency of the evidence establishing a nexus
between his statements to the [state agency] and the administration of the grant
by [the federal agency].” Id. In upholding the defendant’s conviction, we
determined that the defendant’s statements “contravened the intent” of the state
program and “had the potential to divert a portion of the[] funds from an
individual who was entitled to receive them.” Id. at 563–64. Therefore, even
though the federal agency had no direct authority over disbursement of the
funds and no power to punish individuals making fraudulent claims, the
defendant’s false statements affected a “matter within the jurisdiction” of a
federal agency for the purposes of § 1001. Id. at 564.
       Here, viewing the evidence in the light most favorable to the government,
a reasonable juror could have concluded that Smith’s data manipulation
contravened the intent of FMCSA’s CDLIS information-sharing program and,
therefore, fell within FMCSA’s jurisdiction. See id. at 563. The jury heard


and an authorized function of a federal agency,” Facchini, 874 F.2d at 641 (emphasis
added)—appears to be in some tension with pronouncements from the Supreme Court. See,
e.g., United States v. Rogers, 466 U.S. 475, 479 (1984) (explaining that “[t]he most natural,
nontechnical reading of the statutory language [in § 1001] is that it covers all matters confided
to the authority of an agency or department” (emphasis added)); Bryson v. United States, 396
U.S. 64, 70–71 (1969) (directing that “the term ‘jurisdiction’ should not be given a narrow or
technical meaning for purposes of § 1001” (emphasis added) (citations omitted)).

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                                       No. 11-60828
Redmond’s unchallenged expert testimony that Mississippi’s driver’s license
database is connected to the CDLIS and subject to FMCSA regulations and
audits. The Manual and ACD, which the defendant filed as exhibits at trial,
further demonstrate the scope of FMCSA’s authority and its particular interest
in the data manipulation at issue. For example, the Manual provides that
participating states “must record all ACD convictions” for every CDL holder.
Def. Ex. 17 at 137; see also 49 C.F.R. § 384.107. The ACD, in turn, provides
detailed guidance on which convictions states must record, as well as how states
must code those convictions when entering them into their databases. Def. Ex.
21. FMCSA regulations also prohibit states from “prevent[ing] a . . . CDL
holder’s conviction for any violation . . . from appearing on the CDLIS driver
record,” yet the government introduced evidence suggesting that Smith deleted
Cascio’s convictions for speeding and running a stop sign. 49 C.F.R. § 384.226;
see also 49 C.F.R. § 384.225(a)(1) (specifying that states must “[p]ost and
maintain as part of the CDLIS driver record . . . [a]ll convictions,
disqualifications and other licensing actions for violations of any State or local
law relating to motor vehicle traffic control . . . .”). The ACD’s coding regime for
speeding violations also differentiates between different driver speeds and Smith
admitted he altered the speeds on Rawls’s, Parker’s, and Davis’s speeding
violations.4
       Furthermore, Smith’s own testimony implicates our prior observation that
a “showing that the defendant had actual knowledge of federal involvement
might lessen the need for a detailed examination of the federal government’s
relationship to the statements.” Taylor, 582 F.3d at 563 (quoting Montemayor,


       4
        Mississippi reports speeding violations using ACD code “S92,” which requires detailed
information about the “[s]peed limit and [the driver’s] actual speed.” Cf. 23 C.F.R. Pt. 1327,
App. A.

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                                  No. 11-60828
712 F.2d at 108). Smith testified that “the Federal Motor Carrier people came
in and held an audit . . . [in] early fall of ‘07,” that they “threatened to take
away” Mississippi’s highway funds “every time they c[a]me in and d[id] an
audit,” and that “[s]ometime around July of ‘08, there was a mass rush to get the
computer programmed just to be able to handle how the commercial driver’s
license tickets were supposed to be done according to the Federal Motor Carrier
people.” This testimony shows that Smith was keenly aware of FMCSA’s
involvement in Mississippi’s driver’s license database when he engaged in the
data manipulation at issue.
      We reject Smith’s attempts to distinguish this case from Taylor. At oral
argument, Smith’s counsel emphasized that in Taylor the federal agency had the
authority to rescind the state program at issue, suggesting that the
circumstances here are different. But the federal regulations provide that if a
state is in “substantial noncompliance” with federal regulations—by, for
example, “not disqualify[ing] drivers convicted of disqualifying offenses in
commercial motor vehicles”—then FMCSA may decertify the state’s CDL
program. 49 C.F.R. § 384.405(b)(2), (d), (e); see also id. § 384.225 (establishing
minimum standards for compliance with CDLIS driver recordkeeping).
Moreover, just as the federal agency in Taylor audited and provided funding for
the state program, FMCSA audits Mississippi’s driver’s license database for
compliance with CDLIS standards and, according to Redmond’s expert
testimony, FMCSA provides grant funds for states to develop and improve the
CDLIS. See Taylor, 582 F.3d at 562–63; see also 49 U.S.C. § 31313 (authorizing
the Secretary of Transportation to make grants to implement and improve the
CDLIS). Finally, AAMVA acting on behalf of FMCSA provides administrative
support for states that participate in the CDLIS. Smith asserts that only
FMCSA is relevant to the inquiry, not AAMVA, but our precedent holds

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                                        No. 11-60828
otherwise. See Montemayor, 712 F.2d at 107 (upholding a conviction under
§ 1001 based on false statements to procure Texas birth certificates even though
the statements were not made directly to a federal agency); see also United
States v. Hames, 185 F. App’x 318, 323–24 (5th Cir. 2006) (unpublished but
persuasive) (concluding that a defendant’s false statements to a private
contractor administering the Medicare program in Texas were sufficient for a
rational trier of fact to have found the defendant guilty of violating § 1001);
United States v. Reynolds, 152 F. App’x 416, 417–18 (5th Cir. 2005) (unpublished
but persuasive) (holding that a defendant’s statements to private lenders in an
attempt to acquire federally insured loans were matters within the federal
agency’s jurisdiction).
       In sum, under our precedent and the evidence presented at trial, a
reasonable trier of fact could have found that Smith’s data manipulation fell
“within the jurisdiction” of FMCSA for the purpose of § 1001.
                                               B.
       Smith next argues that the evidence is insufficient to sustain a finding
that his actions were material, as required for a conviction under § 1001. Once
again citing Holmes and Facchini, Smith insists that his actions could not have
affected or influenced FMCSA because FMCSA has no authority to act on
information entered in the CDLIS or punish an individual who enters false
information.5      In response, the government argues that Smith’s conduct

       5
         Smith also asserts that his changes to the driver records were not material because
they did not affect core information in the CDLIS, such as jurisdiction and offense codes.
Smith’s position finds little support in the record. For one, as noted above, Mississippi reports
speeding violations using an ACD code for which the speed details are required. See supra n.4.
Furthermore, aside from the code for speeding, the record reflects that Smith deleted from
Parker and Davis’s records codes “W30” and “W31,” respectively, which served to show that
the two men had been convicted of multiple serious traffic violations. Cf. 23 C.F.R. Pt. 1327,
App. A. The government also points to evidence that Smith deleted two ACD convictions from
Cascio’s driving record, thereby removing the suspension of Cascio’s license. Nevertheless, our

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                                       No. 11-60828
materially undermined the purpose and function of the CDLIS system by
impairing the accuracy of CDL records.6 Based on the evidence in the record, we
conclude that a reasonable factfinder could have determined that Smith’s data
manipulation was material beyond a reasonable doubt.
       We articulated the test for materiality in United States v. Lichenstein: “A
material false statement under [§ 1001] is one that is capable of affecting or
influencing the exercise of a government function.” 610 F.2d 1272, 1278 (5th Cir.
1980). This standard calls for “differentiat[ing] the official, authorized functions
of an agency or department from matters peripheral to the business of that
body.” Rodgers, 466 U.S. at 479. “The purpose of this ‘judge-made limitation of
materiality’ is to ensure that the reach of § 1001 is confined to reasonable bounds
and not allowed to embrace trivial falsehoods.” United States v. Elashyi, 554
F.3d 480, 497 (5th Cir. 2008) (quoting Lichenstein, 610 F.2d at 1278).
       Here, the testimony at trial was sufficient to show that Smith’s data
manipulation was capable of affecting or influencing FMCSA’s exercise of at
least one authorized governmental function, namely auditing Mississippi’s
compliance with federal standards for the CDLIS. Redmond testified that



resolution of this issue does not turn on whether Smith’s conduct affected the ACD codes.
Even accepting Smith’s argument, his data manipulation had the potential to frustrate
FMCSA’s official audit function, as we explain above.
       6
         At oral argument, the government also seemed to argue that materiality under § 1001
may turn on whether the federal government “has an interest” in the defendant’s conduct (and
it had difficulty identifying any situation in which the federal government would not have such
an interest). In this day, the federal government may have an interest in almost anything, but
federalism concerns prevent us from construing § 1001 so broadly. Well-established precedent
makes clear that a defendant’s conduct gives rise to criminal liability under § 1001 when it is
material, i.e., capable of affecting “the official, authorized functions of an agency or
department.” Rodgers, 466 U.S. at 479. In the context of this case, Smith’s data manipulation
was material not because it impacted something in which the federal government has an
interest, but because it was capable of affecting FMCSA’s audit authority and falls within our
precedent. See Taylor, 582 F.3d at 563–64; Lichenstein, 610 F.2d at 1278.

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                                     No. 11-60828
FMCSA has “a stringent . . . compliance review program,” pursuant to which it
audits state databases every three to three and a half years to ensure that they
meet the federally-mandated minimum standards.7 He also explained that when
a person inputs information in a database that is part of the CDLIS, “it affects
[FMCSA] in the sense that Congress is providing [FMCSA] with money to
oversee the [CDLIS] program and [FMCSA is] looking at the states themselves
to make sure they are meeting the minimum requirements,” including accurate
and complete records of traffic violations. This testimony contradicts Smith’s
position that his false statements “don’t have any connection with something
that [FMCSA] does.” Indeed, it shows that Smith’s data manipulation was
capable of affecting FMCSA’s authorized auditing function. Accordingly, we
conclude that the record contains sufficient evidence that Smith’s actions were
material.
                                           IV.
       For the foregoing reasons, we AFFIRM the district court’s judgment.




       7
         Mississippi’s driver’s license database has been subject to such audits. The
Department’s computer programer testified that FMCSA audited Mississippi’s driver’s license
database in 2004 and 2007. Both of these audits resulted in corrective actions to bring
Mississippi into compliance with federal requirements.

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