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                                                                                 [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                       __________________________________

                                  No. 14-13767
                       __________________________________

                        D.C. Docket No.: 1:14-cr-20099-CMA-1



UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

EDGAR ALEXANDER PIRELA PIRELA,

                                                                      Defendant-Appellant.

                       __________________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                      ___________________________________

                                   (December 22, 2015)

Before ED CARNES, Chief Judge, MARTIN, Circuit Judge, and WALTER, *
District Judge.
*
 Honorable Donald E. Walter, Senior United States District Judge for the Western District of
Louisiana, sitting by designation.
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WALTER, District Judge:

      Defendant-Appellant Edgar Alexander Pirela Pirela (“Pirela Pirela”) appeals

the denial of his motion for a judgment of acquittal on his conviction for fraud and

misuse of a visa, in violation of 18 U.S.C. § 1546(a). Pirela Pirela’s appeal turns on

the meaning of the phrase “procured by means of,” as it is used in the first

paragraph of section 1546(a). Following a review of the record and with the benefit

of oral argument, we AFFIRM.

I.    FACTUAL AND PROCEDURAL HISTORY

      A.     Facts.

      On February 18, 2014, a federal grand jury in the Southern District of

Florida indicted Pirela Pirela for violating 18 U.S.C. § 1546(a), specifically

alleging that, on February 7, 2014, Pirela Pirela “did knowingly possess, use, and

attempt to use a document prescribed by statute and regulation for entry into the

United States, that is, a United States visa, which the defendant knew was

procured by means of a false claim and false statement, and to have been

otherwise procured by fraud, and unlawfully obtained[.]” (emphasis added).

      The parties stipulated to the following relevant facts, as well as the exhibits

offered in support of the United States of America’s (“the Government’s”) case.

Pirela Pirela is a citizen and national of Venezuela with no legal status in the

United States. In 2006, Pirela Pirela was arrested in Venezuela for “serious
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intentional injuries, misuse of [a] weapon, unlawful arm bearing, and unlawful

deprivation of freedom.” On January 6, 2011, Pirela Pirela signed and submitted a

DS-160 online application for a United States visa, in which he answered “No” to

the following question: “Have you ever been arrested or convicted for any offense

or crime, even though the subject of a pardon, amnesty, or other similar action?”

On January 12, 2011, the United States Embassy in Caracas, Venezuela, issued

Pirela Pirela a B1/B2, or non-immigrant, visa, with an expiration date of January

10, 2021.

       On February 7, 2014, Pirela Pirela arrived at Miami International Airport

(“MIA”), from Maracaibo, Venezuela, and presented his Venezuelan passports and

B1/B2 visa to United States Customs and Border Protection (“CBP”) officers for

examination and entry into the United States.1 Pirela Pirela was referred to a

passport control secondary examination. During the examination, a CBP officer

conducted an internet search of Pirela Pirela’s full name, which revealed a

document reflective of a prior court proceeding and prompted the officer to

question Pirela Pirela’s criminal history. The CBP officer then retrieved a copy of

Pirela Pirela’s visa application from the records of the United States Department of

State, reviewed the application, and proceeded to question Pirela Pirela regarding


1
 Pirela Pirela presented two passports at MIA: an expired Venezuelan passport, containing the
B1/B2 visa at issue; and a current Venezuelan passport.

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the contents thereof. In a sworn statement, taken by the CBP officer, Pirela Pirela

acknowledged his prior arrest in Venezuela; his guilty plea to, and conviction of, a

lesser charge; and his failure to disclose this information on the visa application

because he was afraid his visa would be refused.

      B.     Relevant Procedural History.

      Pirela Pirela entered a plea of not guilty and waived his right to a trial by

jury. A bench trial commenced on April 8, 2014, at which time the Government

moved to admit the joint stipulations of fact and exhibits. The Government then

declined to present three law enforcement witnesses, who were present and

prepared to testify, believing that the joint submissions obviated the need for the

witnesses’ testimony. Prior to resting, the Government argued that it had

established a violation of 18 U.S.C. § 1546(a), as charged, based on the joint

submissions and Pirela Pirela’s admission to having made a false statement on his

visa application because he was afraid that a truthful response would result in his

application being denied. At the close of the Government’s case, Pirela Pirela

moved for a judgment of acquittal, pursuant to Federal Rule of Criminal Procedure

29, arguing that the Government had failed to prove that Pirela Pirela’s visa was

procured by means of a false statement. While admitting that his negative response

to the visa application question regarding his criminal history was indeed a false

statement, Pirela Pirela argued that the phrase “procured by means of” involved a


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heightened materiality requirement. In other words, Pirela Pirela argued that the

Government had failed to prove that answering the question truthfully would have

rendered Pirela Pirela statutorily ineligible for a visa. Pirela Pirela contended that

this failure of proof was fatal to the Government’s case, relying on judicial

interpretations of 18 U.S.C. § 1425(a), which prohibits unlawful procurement of

citizenship or naturalization. The district court reserved ruling and, prior to

adjourning, ordered Pirela Pirela to file a written motion for a judgment of

acquittal, to which the Government would then have an opportunity to respond.

      On July 15, 2014, the district court issued an order, with written reasons,

denying Pirela Pirela’s motion for judgment of acquittal. The court disagreed with

Pirela Pirela’s proposed meaning of “procured by means of” in section 1546(a) and

adopted the Government’s position that it need only prove that the false statement

had a natural tendency to influence agency action or was capable of influencing

agency action. In doing so, the court found section 1546 more analogous to a

customs enforcement statute, 18 U.S.C. § 542, which prohibits the entry of goods

by means of false statements, than to the naturalization statute, 18 U.S.C. §

1425(a). Additionally, the court acknowledged that the natural tendency standard

had been applied to section 1546(a)’s fourth paragraph but the heightened

materiality standard urged by Pirela Pirela had never been applied to any portion

thereof. Accordingly, the district court found that the evidence of record at that


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point, viewed in the light most favorable to the Government, was sufficient to

convict Pirela Pirela under the natural tendency standard. The court nevertheless

granted the Government’s request to re-open the case to allow for a more complete

record.

      On August 21, 2014, the bench trial resumed, and the Government presented

two witnesses: CBP Officer Ericson Santiago and Special Agent Bryan Baer from

the U.S. Department of State’s Diplomatic Security Service (“DSS”). Officer

Santiago, who was the officer responsible for Pirela Pirela’s secondary

examination at MIA, testified regarding Pirela Pirela’s nervous behavior during the

examination. That behavior prompted Officer Santiago’s internet search and

resultant discovery of Pirela Pirela’s undisclosed criminal history, which led to

further questioning by the officer. Officer Santiago testified that these questions

were important, because criminal history is relevant to admissibility into the

United States and, by making the false statement at issue, Pirela Pirela forestalled

further inquiry that would have occurred prior to the issuance of the visa.

The second witness, Special Agent Baer, testified regarding his training and

experience in the criminal investigation of visa and passport fraud. Through his

experience working with consular officers who adjudicated B1/B2 visa

applications, Special Agent Baer explained the adjudication process, as follows. A

consular officer adjudicates each visa application by considering numerous factors,


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including: whether a non-immigrant visa applicant is actually attempting to

immigrate to the United States; the applicant’s actual intentions relative to the

representations made on the application; and whether the applicant is ineligible for

a visa. The agent described three categories of ineligibilities: hard ineligibilities,

which preclude an applicant from reapplying absent approval from the Secretary of

State or the Secretary of Homeland Security; ineligibilities that do not preclude an

applicant from reapplying in the future; and administrative suspension, which

suspends an application to allow for additional information and processing. An

administrative suspension occurs when the visa applicant checks “any potentially

derogatory boxes” on the application. The agent further testified that criminal

history may affect an applicant’s eligibility and that, at the very least, if a Bl/B2

visa applicant admitted a prior arrest or conviction on his application, additional

information would be requested by the reviewing officer. The result would

ultimately depend on the severity of the crime and might include mere suspension

of the application, hard ineligibility, or visa denial.

      At the close of the Government’s case, Pirela Pirela renewed his motion for

a judgment of acquittal, which was again denied. Pirela Pirela elected not to testify

or present any evidence. During a brief closing argument, Pirela Pirela stressed

Special Agent Baer’s testimony that the mere fact that an applicant has a criminal

history does not automatically result in the denial of the visa application. In


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conclusion, the district court found that the testimony of the two agents further

supported the court’s prior ruling that Pirela Pirela’s false statement regarding his

criminal history did have a natural tendency to influence agency actions, such that

Pirela Pirela was in violation of 18 U.S.C. § 1546(a). By agreement of the parties,

the court proceeded directly into an expedited sentencing hearing, at which time

Pirela Pirela was sentenced to time served and a three-year term of supervised

release. This appeal followed, raising only the issue of the district court’s denial of

Pirela Pirela’s motion for a judgment of acquittal and interpretation of the phrase

“procured by means of” a false claim or statement.

II.   STANDARD OF REVIEW

      We review de novo both the interpretation of a criminal statute, United

States v. Rojas, 718 F.3d 1317, 1319 (11th Cir. 2013) (per curiam), as well as the

denial of a motion for judgment of acquittal based on sufficiency of the evidence.

United States v. Westry, 524 F.3d 1198, 1210 (11th Cir. 2008) (per curiam). “We

will not reverse a conviction for insufficient evidence in a non-jury trial unless,

upon reviewing the evidence in the light most favorable to the government, no

reasonable trier of fact could find guilt beyond a reasonable doubt.” United States

v. Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991) (citation omitted). The

“materiality” element of false statement prosecutions must be decided by the

factfinder, United States v. Gaudin, 515 U.S. 506, 511-15 (1995); a district court’s


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bench trial findings of fact are reviewed for clear error, O’Ferrell v. United States,

253 F.3d 1257, 1265 (11th Cir. 2001).

III.   DISCUSSION

       The question presented is both novel and narrow; it depends solely on the

meaning of the phrase “procured by means of,” as it is used in the first paragraph

of 18 U.S.C. § 1546(a). “When construing a criminal statute, we begin with the

plain language; where ‘the language Congress chose to express its intent is clear

and unambiguous, that is as far as we go to ascertain its intent because we must

presume that Congress said what it meant and meant what it said.’” United States

v. Browne, 505 F.3d 1229, 1250 (11th Cir. 2007) (quoting United States v. Steele,

147 F.3d 1316, 1318 (11th Cir. 1998) (en banc)). The language used in the

indictment tracked the statute, which provides, in pertinent part:

       Whoever knowingly . . . uses, attempts to use, possesses, obtains . . .
       any such visa . . . for entry into . . . the United States, knowing it to
       . . . have been procured by means of any false claim or statement, or
       to have been otherwise procured by fraud or unlawfully obtained . . .
       shall be fined under this title or imprisoned . . . or both.

18 U.S.C. § 1546(a) (emphasis added). The fourth paragraph of section 1546(a)

provides, in pertinent part:

       Whoever knowingly makes under oath. . . any false statement with
       respect to a material fact in any application, affidavit, or other
       document required by the immigration laws or regulations . . . shall be
       fined under this title or imprisoned . . . or both.



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(emphasis added). Pirela Pirela was charged and convicted under the first

paragraph, wherein the word “procure” appears without the word “material;”

however, the fourth paragraph specifies that it is the making of a material false

statement which is criminal. Pirela Pirela argues that Congress’s failure to employ

identical language in paragraphs one and four militates in favor of applying a

heightened materiality standard here, as opposed to the lower standard previously

found to be applicable to the fourth paragraph. See, e.g., United States v. Garcia-

Ochoa, 607 F.3d 371, 376 (4th Cir. 2010) (defendant’s misstatements were

material because capable of influencing agency action); United States v. Causevic,

636 F.3d 998, 1005 (8th Cir. 2011) (false statement need only have natural

tendency to influence, or be capable of influencing the decision, and need not

actually be relied upon by agency in making its decision).

      Indeed, it is a “well-established rule of statutory construction that courts

must give effect, if possible, to every clause and every word of a statute.”

Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1354 (11th Cir. 2005) (per curiam)

(citing Williams v. Taylor, 529 U.S. 362, 404 (2000)). And, “[w]here Congress

includes particular language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.” Russello v. United States,

464 U.S. 16, 23 (1983). However, in the context of the unenumerated paragraphs


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of section 1546(a), the purported variations are not so readily deciphered. As

pointed out by the defense, the paragraphs criminalize different conduct and,

outside of the differences emphasized above, do not otherwise parallel each other’s

language. In other words, the independent application of the two paragraphs does

not require that the first paragraph espouse a heightened materiality standard. Thus,

the plain language is instructive but does not resolve the issue before the court.

      Pirela Pirela urges us to interpret the key phrase “procured by means of” in

the same way that courts have interpreted the word “procure” in 18 U.S.C.

§ 1425(a), which makes it unlawful to “knowingly procure[] or attempt[] to

procure, contrary to law, the naturalization of any person, or documentary or other

evidence of naturalization or of citizenship[.]” In support thereof, Pirela Pirela

relies on case law from other circuits, citing the Supreme Court’s fragmented

decision in Kungys v. United States, 485 U.S. 759 (1988). In interpreting another

denaturalization statute, 8 U.S.C. § 1451(a), Kungys acknowledged a distinction

between the requirements that the misrepresented fact must have been material and

whether citizenship was procured as a result of that misrepresentation. 485 U.S. at

767. Kungys held “that the test of whether [the defendant’s] concealments or

misrepresentations were material is whether they had a natural tendency to

influence the decisions of the Immigration and Naturalization Service.” Id. at 772

(emphasis added). If the misrepresentation is such that the truth “would predictably


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have disclosed other facts relevant to [the applicant’s] qualifications[,]” id. at 774,

then proof thereof would raise a rebuttable presumption of ineligibility for

citizenship. Id. at 777. Acknowledging, then, that “citizenship is a most precious

right,” Kungys’s concurrence went on to establish that this “presumption of

ineligibility does not arise unless the Government produces evidence sufficient to

raise a fair inference that a statutory disqualifying fact actually existed.” Id. at 783

(Brennan, J., concurring).2 An applicant could then refute that presumption, and

avoid denaturalization, by showing that “the statutory requirement as to which the

misrepresentation had a natural tendency to produce a favorable decision was in

fact met.” Id. at 777.

       Following this analysis, Pirela Pirela argues that a valid conviction would

have required the Government to prove that, had Pirela Pirela responded truthfully

to the criminal history inquiry on his visa application, he would have been

statutorily ineligible for the visa. He cites to both Seventh and Ninth Circuit

decisions in support of his argument. See, e.g., United States v. Latchin, 554 F.3d

709, 715 (7th Cir. 2009) (advising district courts to treat procurement as a separate

element from materiality, one requiring evidence that would raise a fair inference
2
  The Ninth Circuit has recognized Justice Brennan’s concurrence as the controlling standard of
materiality in section 1425(a) prosecutions. See United States v. Puerta, 982 F.2d 1297, 1304
(9th Cir. 1992). “When a fragmented Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v.
United States, 430 U.S. 188, 193 (1977) (quotation omitted).

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that the defendant was statutorily ineligible for naturalization); United States v.

Puerta, 982 F.2d 1297, 1304 (9th Cir. 1992) (reversing section 1425(a) conviction

for lack of evidence from which any factfinder could fairly infer that defendant

was actually ineligible for naturalization). Both the Supreme Court’s decision in

Kungys, as well as the circuit decisions cited by Pirela Pirela, are readily

distinguishable, in that they each involve a denaturalization statute under which

conviction would automatically result in the loss of citizenship. No such parallel

exists under section 1546(a).

      The testimony of DSS Special Agent Baer established that there is no

automatic statutory ineligibility, with respect to an applicant’s response to the

criminal history inquiry on a B1/B2 visa application. Instead, at the very least, the

admission of a prior arrest or conviction on a B1/B2 visa application would trigger

the need for additional information and further processing, involving some degree

of discretionary decision-making on the part of the consular officer involved.

Pirela Pirela’s misrepresentation was therefore such that the truth “would

predictably have disclosed other facts relevant to [his] qualifications.” Kungys, 485

U.S. at 774. This necessary step in the decision-making process was forestalled by

Pirela Pirela’s false statement, which he made for fear that a truthful statement

would have resulted in visa denial. The Government need not prove whether the

end result would have been mere suspension, hard ineligibility or visa denial. Such


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a heightened burden of proof is not appropriate in a prosecution that would not

result in loss of citizenship upon conviction. Simply put, lawful possession of a

B1/B2 non-immigrant visa may not be readily equated with naturalization or

citizenship.

      Instead, it is both reasonable and appropriate to apply a standard which

requires that Pirela Pirela’s false statement exhibited a level of materiality such

that it would have had “a natural tendency to influence or the capability to

influence government action.” United States v. Johnson, 139 F.3d 1359, 1363

(11th Cir. 1998) (as applied in prosecution pursuant to the Arms Export Control

Act). To this end, the Government analogizes to 18 U.S.C. § 542, which is a

customs enforcement statute, proscribing entry of goods by means of false

statements. Section 542 provides, in pertinent part:

      Whoever enters or introduces . . . into the commerce of the United
      States any imported merchandise by means of any fraudulent or false
      invoice . . . or by means of any false statement . . . or procures the
      making of any such false statement as to any matter material thereto
      without reasonable cause to believe the truth of such statement . . .
      [s]hall be fined . . . or imprisoned not more than two years, or both.

18 U.S.C. § 542. The Government relies heavily on the Second Circuit’s explicit

adoption of the natural tendency test over a more stringent but-for materiality test,

in the context of section 542. United States v. An Antique Platter of Gold, 184 F.3d

131, 136 (2d Cir. 1999) (“[T]he natural tendency approach is far more consistent

with the purpose of the statute–to ensure truthfulness of representations made
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during importation–than is a but for test”). We, too, find the Second Circuit’s

reasoning persuasive. Significantly, its analysis points out that the application of a

heightened standard would encourage lying, as the Government would “bear the

difficult burden of proving what would have happened if a truthful statement had

been made.” An Antique Platter of Gold, 184 F.3d at 136. Such an interpretation,

encouraging falsehoods in the face of a statute clearly prohibiting the making of

false statements, would undoubtedly frustrate the statutory purpose and lead to

absurd results. See United States v. Ballinger, 395 F.3d 1218, 1237 (11th Cir.

2005) (en banc) (“[N]othing is better settled than that statutes should receive a

sensible construction, such as will effectuate the legislative intention, and, if

possible, so as to avoid an unjust or absurd conclusion.”) (quoting In re Chapman,

166 U.S. 661, 667 (1897)).

       Pirela Pirela cites An Antique Platter of Gold not for its holding but for its

recognition of an apparent split in our sister circuits regarding the materiality

requirement of section 542, and he further points us to a binding former Fifth

Circuit decision, United States v. Ven-Fuel, Inc., 602 F.2d 747 (5th Cir. 1979),

which requires a heightened materiality standard.3 In Ven-Fuel, an oil importation

case, the Fifth Circuit held fraudulent statements to be immaterial, because they

3
 Fifth Circuit decisions issued before the close of business on September 30, 1981 are binding
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).

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had “no significance whatsoever with respect to the actual importation of the oil”

but referred only to the quality of a collateral oil storage agreement. 602 F.2d at

753. The Fifth Circuit found that the statements could not be material “[a]bsent a

logical nexus” between the statements and the actual importation of oil. Id. While

there may be an authoritative divide regarding section 542, we are faced now with

determining the appropriate standard of materiality involved in a section 1546(a)

prosecution. Here, a logical nexus is not only present between Pirela Pirela’s false

statement and the ensuing agency action taken on his visa application, but the

making of that false statement materially altered the course of the adjudication

process. Pirela Pirela’s statement was significant to his visa application process.

      In sum, a common-sense, practical interpretation of the first paragraph of

section 1546(a) criminalizes Pirela Pirela’s conduct. See United States v.

Sepulveda, 115 F.3d 882, 887 (11th Cir. 1997) (recognizing that a court has no

obligation “to override common sense and evident statutory purpose” in construing

criminal statutes (citation omitted)). Accordingly, Pirela Pirela’s conviction was

supported by sufficient evidence.

IV.   CONCLUSION

      For the foregoing reasons, we AFFIRM.




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