                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2004

USA v. Borghini
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2587




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"USA v. Borghini" (2004). 2004 Decisions. Paper 483.
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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 03-2587


                         UNITED STATES OF AMERICA

                                          v.

                              ELAINE M. BORGHINI,

                                                Appellant


                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                             (Dist. Ct. No. 01-cr-00179)
                   District Judge: Honorable William L. Standish



                    Submitted Under Third Circuit LAR 34.1(a)
                                 June 25, 2004

          Before: NYGAARD, McKEE and CHERTOFF, Circuit Judges.

                                (Filed: July 20, 2004)



                                      OPINION


CHERTOFF, Circuit Judge.

     Elaine M. Borghini was found guilty at trial of three counts of making a false

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statement to obtain federal employee compensation in violation of 18 U.S.C. § 1920.

The sole issue on appeal is whether the Government provided sufficient evidence that her

admittedly false statements were “material” within the meaning of the statute. For the

reasons stated below, we will affirm the District Court’s judgment.



                                             I.

      Because we write only for the parties, we abbreviate our recitation of the facts.

The issue in this case stems from statements made by Borghini in connection with

worker’s compensation payments she received from the United States Department of

Labor. Borghini was convicted of supplying false information on a worker’s

compensation form known as CA-1032 (“1032 Form”) in violation of 18 U.S.C. § 1920

on three occasions—June 12, 2000, December 12, 2000, and June 13, 2001.1 In each

instance, Borghini responded “no” to the following question: “Were you self-employed

or involved in any business enterprise in the past 15 months?”2 In actuality, Borghini

      1
          Borghini was acquitted of the additional wire fraud charges.
      2
        The top or the 1032 Form provides, in pertinent part:
      Report ALL self-employment or involvement in business enterprises.
      These include but are not limited to: farming; sales work; operating a
      business, including a store or a restaurant; and providing services in
      exchange for money, goods, or other services. The kinds of services which
      you must report include such activities as carpentry, mechanical work,
      painting, contracting, child care, odd jobs, etc. Report activities such as
      keeping books and records, or managing and/ or overseeing a business of
      any kind, including a family business. Even if your activities were part-
      time or intermittent, you must report them.
                                             2
concedes that during each of the relevant time periods she was self-employed as a house

cleaner and failed to report this income on Form 1032. See Appellant Br. at 5.

       18 U.S.C. § 1920 provides, in pertinent part:

       Whoever knowingly and willfully falsifies, conceals, or covers up a
       material fact, or makes a false, fictitious, or fraudulent statement or
       representation, or makes or uses a false statement or report knowing the
       same to contain any false, fictitious, or fraudulent statement or entry in
       connection with the application for or receipt of compensation or other
       benefit or payment . . . shall be guilty of perjury, and on conviction thereof
       shall be punished by a fine under this title, or by imprisonment for not more
       than 5 years, or both; but if the amount of the benefits falsely obtained does
       not exceed $1,000, such person shall be punished by a fine under this title,
       or by imprisonment for not more than 1 year, or both.

18 U.S.C. § 1920. Both parties agree that the provision requires the jury to find beyond a

reasonable doubt the following four elements: (1) a false statement; (2) of material fact;

(3) given knowingly and willfully; and (4) given in connection with the receipt of

worker’s compensation benefits. See Appellant Br. at 8; Appellee Br. at 12. The only

issue on appeal, however, concerns the second element—whether the admittedly false

statements were “material” within the meaning of the statute.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and this Court has

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over questions of

statutory interpretation. See U.S. v. Thayer, 201 F.3d 214, 219 (3d Cir. 1999). “In

reviewing [a defendant’s] challenge to the sufficiency of the evidence, we apply a

particularly deferential standard of review. The verdict must be sustained if there is


Supplemental App. at 1, 6, 11 (emphasis in original).
                                             3
substantial evidence to support it.” United States v. Cartwright, 359 F.3d 281, 285-86

(3d Cir. 2004) (internal citations and quotations omitted). “‘We must view the evidence

in the light most favorable to the Government and sustain the verdict if any rational juror

could have found the elements of the crime beyond a reasonable doubt.’” Id. (quoting

United States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002)).



                                              II.

       Borghini’s only argument on appeal is that the Government failed to prove the

purportedly “material” fact that it suffered a loss as a result of her mistatements. We

disagree.

       To begin, as a legal matter, nothing in 18 U.S.C. § 1920 requires the Government

to demonstrate that it actually suffered a loss. Rather, the statute imposes liability on

those who “knowingly and willfully falsif[y], concea[l], or cove[r] up a material fact.” 18

U.S.C. § 1920. As the Government points out, materiality is a flexible concept. “In

general, a false statement is material if it has a natural tendency to influence, or [is]

capable of influencing, the decision of the decisionmaking body to which it was

addressed.” Neder v. United States, 527 U.S. 1, 16 (1999) (quotations and citations

omitted) (alternation in original).3 Thus, the falsification is “material” if it tends to

       3
        In Neder, the Court analyzed the term “material” in the context of a tax offense
under 26 U.S.C. § 7206(1). The notion that materiality is a flexible concept, however, is
equally applicable to the statute at issue in this case.
       The jury instruction given at trial in this case also reflects the flexible concept of
                                               4
influence the decision process, even if there is no evidence as to the actual amount lost.

The amount of loss is relevant not to culpability under the statute, but to the penalty

imposed for violation of the provision—while the statute authorizes imprisonment for up

to five years, if the loss does not exceed $1,000 the maximum prison term is one year.

See 18 U.S.C. § 1920. This commonsense interpretation of § 1920 is consistent with the

conclusions reached by other circuit courts. See United States v. Grillo, 160 F.3d 149,

150 (2d Cir. 1998) (per curiam); United States v. Henry, 164 F.3d 1304, 1307-08 (10th

Cir. 1999).

       Borghini’s argument also fails as a factual matter. In this case, there was ample

evidence from which a reasonable juror could have concluded that Borghini’s

misstatements affected her level of compensation. Sheila Baker, assistant branch chief

and former special claims examiner at the Department of Labor, provided extensive

testimony on how Borghini’s self-employment would bear on both her eligibility for and

level of compensation.


materiality:
             A false or fraudulent representation or failure to disclose must relate
      to a material factor matter [sic]. A material fact is one which is reasonably
      be [sic] expected to be a concern to a reasonable and prudent person in
      relying on the representation or statement in making a decision or in taking
      some action.
             This means that if you find a particular statement of fact to have
      been false, you must determine whether that statement was one that a
      reasonable person might have considered important in making his or her
      decision. The same principal applies to fraudulent half truths or omissions
      of material facts.
App. at 81.
                                             5
       In support of her argument, Borghini cites to testimony in which Baker

acknowledged that she could not provide an estimate of how much Borghini’s

compensation would have been reduced because of the complexity of the mathematical

formula and the need to examine records and data. The mere fact, however, that Baker

could not quantify, on the spot, the precise effect on Borghini’s benefits in no way

undercuts the fact that the lie was “material” within the meaning of § 1920. Rather,

Borghini’s reading “conflate[s] the probative and punitive portions of the statute.”

Henry, 164 F.3d at 1307.

       For the foregoing reasons, we will affirm the District Court’s judgment.




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