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

                                                                    FILED
                                                                 December 15, 2008
                                No. 08-40481
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MARIANNA MILLER; JASON CORY FREGIA

                                            Defendants-Appellants


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 1:07-CR-173-1
                           USDC No. 1:07-CR-173-2


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Marianna Miller and Jason Cory Fregia appeal their convictions for
making false statements to the United States in violation of 18 U.S.C.
§ 1001(a)(2). Miller was found guilty of making three false statements on
documents executed in conjunction with her application for a disaster relief loan
from the Small Business Administration. Fregia, Miller’s husband, was found
guilty for jointly making one of the false statements with Miller. All three false


      *
      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should not be published and is not precedent except under the limited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.
                                 No. 08-40481

statements were claims to ownership of a piece of real estate known as Block 51
that Miller had attempted to obtain by filing a quitclaim deed transferring
ownership in Block 51 from a seller listed as unknown to Miller. Miller and
Fregia argue that the evidence at trial was insufficient to support their
convictions.
      Because the defendants unsuccessfully moved for a judgment of acquittal
at the close of the Government’s case and at the close of the evidence, the
standard of review in assessing their sufficiency challenge is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The elements
that must be proven to establish the offense of making a false statement to the
federal government under § 1001(a)(2) are that: (1) the defendant made a
statement; (2) the statement was false; (3) the statement was material; (4) the
defendant had specific intent to make the false statement; and (5) the statement
was made within the jurisdiction of a federal agency. United States v. Leal, 30
F.3d 577, 584 (5th Cir. 1994).
      For the first time on appeal, Miller and Fregia assert that their claims of
ownership of Block 51 were not statements under § 1001(a)(2) because they were
expressions of legal opinions or conclusions. Relying on decades old precedent
from other jurisdictions in perjury cases, they argue that for a statement to be
considered a statement under § 1001(a)(2), the statement must be a statement
of material fact, not a statement that is a legal opinion or conclusion.
      While Miller and Fregia moved for judgments of acquittal, they did not
raise this theory in their motions. Because Miller and Fregia did not raise this
theory below, we review only to determine whether the record is devoid of
evidence of guilt. See United States v. Herrera, 313 F.3d 882, 884-85 (5th Cir.
2002).



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      In the context of a similar statute, the Supreme Court has characterized
a statement as a factual assertion that can be proven true or false. Williams v.
United States, 458 U.S. 279, 284 (1982).        Miller’s and Fregia’s claims of
ownership of Block 51 were factual assertions that could be proven true or false,
and, therefore, were statements. See id.; cf. United States v. Weiler, 385 F.2d 63,
65-66 (3d Cir. 1967). Accordingly, Miller and Fregia have not shown that the
record was devoid of evidence of guilt regarding this element. See Herrera, 313
F.3d at 884-85.
      Miller and Fregia next argue that their false statements claiming
ownership of Block 51 were not material. They maintain that the statements
were not material because the SBA would not have considered rejecting the loan
application if it knew that Miller and Fregia did not own Block 51. They assert
that this was shown by testimony that a title search on Block 51 would have
been conducted if there was any doubt to ownership and the amount of the loan
was larger. They argue that the ownership of Block 51 was a trivial matter to
the SBA because of the small amount of the loan, the minimal value of Block 51,
and the existence of other collateral for the loan. They further maintain that the
ownership of Block 51 was not material because the SBA did not declare a
default of the loan although it had the power to do so if they made a materially
false or misleading representation to the SBA.
      A false statement regarding ownership of collateral available to secure a
loan is capable of influencing the decision of whether to make a loan. While the
value of Block 51 was relatively small and other apparently more valuable
collateral also secured the loan, the SBA required Miller and Fregia to execute
a deed of trust for Block 51 to the SBA. Construing the evidence and inferences
therefrom in the manner most favorable to the Government as the prevailing
party, the evidence was sufficient to show that the claims of ownership of Block
51 were capable of influencing the decision of the SBA to make the loan. See
United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997). As the statements

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were capable of influencing the decision of the SBA, they were material. See
United States v. Gaudin, 515 U.S. 506, 509 (1995).
      Finally, Miller and Fregia argue that the evidence that they knowingly
made false statements was insufficient to support their convictions. They assert
that the evidence showed that they thought they owned Block 51 when they
made the statements to the SBA. Id. They maintain that the evidence was
insufficient to show that they knew that they did not own Block 51 based upon
what they assert was uncontroverted evidence of five facts: (1) that the tax
records showed the owner of Block 51 as unknown and that taxes had not been
paid on it for 20 years; (2) that Helen Tantillo, a clerk at the local property
appraisal district office, told Miller she could acquire Block 51 by filing a
quitclaim deed and paying five years of back taxes; (3) that Tantillo created a tax
account for Block 51 in Miller’s name after she filed the quitclaim deed; (4) that
Miller’s tax receipts listed her as the owner of Block 51; and (5) that an SBA
employee named David Ramsey told Miller that Block 51 belonged to her if she
was paying back taxes on it.
      To sustain a conviction under § 1001(a)(2), the Government must prove
that the false statement was made knowingly and willfully. § 1001(a). The
Government meets this burden if it proves that the defendant made the false
statement with the intent to deceive or mislead. United States v. Shah, 44 F.3d
285, 289 (5th Cir. 1995).
      There was testimony presented at trial that Fregia had discussed
purchasing or leasing Block 51 from John Hunter Carpenter, the manager of the
family corporation and land trust that owned Block 51, prior to Miller’s attempt
to obtain Block 51 with a quitclaim deed. Prior to Miller and Fregia making the
false statements, Fregia attempted to conduct logging operations on Block 51
that were halted when Carpenter brought a law enforcement officer to the site
of the logging operations. Tantillo, contrary to Miller’s testimony, testified that
she did not tell Miller how she could acquire ownership rights in any property.

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A supervisor at the property appraisal district office testified that he told Miller
that she could not file quitclaim deeds transferring property from an unknown
seller to herself and rejected her attempt to acquire a second property in this
manner. While Miller testified that an SBA employee told her that she owned
Block 51, the sole evidence of this was Miller’s uncorroborated testimony.
Additionally, all of the false statements included assertions that Miller held
clear title to Block 51, and the evidence was more than sufficient to show that
Miller and Fregia at least knew that the title to Block 51 was disputed.
      While the evidence showing Miller’s and Fregia’s knowledge of their lack
of ownership of Block 51 was partially circumstantial and inferential, knowledge
can be shown by such evidence. See United States v. Ismoila, 100 F.3d 380, 387
(5th Cir. 1996). The jury’s determination on this issue was based upon a
reasonable construction of the evidence, and we do not reweigh the evidence on
appeal. See United States v. Delagarza-Villarreal, 141 F.3d 133, 139 (5th Cir.
1997). Miller and Fregia have not shown that the evidence was insufficient to
support their convictions.
      AFFIRMED.




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