                                                                      [PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12266                ELEVENTH CIRCUIT
                                                             JULY 13, 2010
                       ________________________
                                                              JOHN LEY
                                                               CLERK
                D. C. Docket No. 07-00089-CR-J-32-TEM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

WILTON JOSEPH FONTENOT,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (July 13, 2010)

Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
TJOFLAT, Circuit Judge:

      Wilton Fontenot appeals his conviction under 18 U.S.C. § 1519 for making a

false entry in a document with the intent to impede an investigation within the

jurisdiction of a United States agency. Fontenot claims that, to convict under §

1519, the Government must prove he knew the investigation would be a federal

investigation. Finding this claim without merit under plain error review, we affirm

Fontenot’s conviction.

                                          I.

      This appeal stems from an altercation between a corrections officer,

Sergeant Wilton Joseph Fontenot, and a prison inmate, Corey Milledge, at

Florida’s Union Correctional Facility on November 22, 2003. The altercation

occurred when Fontenot and his subordinate, Officer Clyde Daniel, tried to enter

inmate Milledge’s cell to perform an inspection. After the altercation, Fontenot

wrote a use of force report, which indicated that he followed Florida Department of

Corrections procedures and that Milledge attacked him through the feeding slot in

his cell door. Officer Joni White, who was stationed in the control room where she

could see some of the events unfold on surveillance cameras, reported details that

differed from Fontenot’s account. Daniel, who had accompanied Fontenot to

Milledge’s cell, wrote a use of force report that matched Fontenot’s, but he later



                                          2
told an investigator that he had falsified his report at Fontenot’s request.

According to Daniel’s later account, Fontenot entered Milledge’s cell in violation

of department procedures and initiated the altercation by punching Milledge in the

head. The altercation ended when Fontenot choked Milledge into unconsciousness

with a plastic trash bag.

       Approximately three years later, Fontenot was charged with several federal

offenses relating to the altercation, including one count of violating 18 U.S.C. §

1519 by knowingly making false entries in a report with the intent to obstruct an

investigation within the jurisdiction of a federal agency.1 Section 1519 provides:

       Whoever knowingly alters, destroys, mutilates, conceals, covers up,
       falsifies, or makes a false entry in any record, document, or tangible
       object with the intent to impede, obstruct, or influence the
       investigation or proper administration of any matter within the
       jurisdiction of any department or agency of the United States or any
       case filed under title 11, or in relation to or contemplation of any such
       matter or case, shall be fined under this title, imprisoned not more
       than 20 years, or both.

       At trial, Fontenot testified, contrary to his use of force report, that he had

entered Milledge’s cell in violation of department procedures but that Milledge had

initiated the altercation by attacking Fontenot and Daniel. Fontenot claimed he had

falsified his use of force report in an attempt to insulate White and Daniel—who


       1
          This was the third of three counts on which Fontenot was indicted. The first count
charged Fontenot with violating 18 U.S.C. § 242, and the second count charged him with
violating 18 U.S.C. § 1512(b)(3). The jury acquitted Fontenot on counts one and two.

                                                3
were both junior to him and on probationary status—from severe disciplinary

repercussions that would have resulted from violating department procedures.

      After closing arguments, the district court instructed the jury, regarding the §

1519 violation, that

      [t]he government is not required to prove that the defendant knew his
      conduct would obstruct a federal investigation, or that a federal
      investigation would take place, or that he knew of the limits of federal
      jurisdiction. However, the government is required to prove that the
      investigation that the defendant intended to impede, obstruct, or
      influence did, in fact, concern a matter within the jurisdiction of an
      agency of the United States.

      Fontenot did not object to this instruction, nor did he move the court for a

judgment of acquittal on this point. The jury returned a guilty verdict on the §

1519 count, and the court sentenced Fontenot to fifteen months’ imprisonment.

                                          II.

                                          A.

      Fontenot appeals his conviction, arguing that to obtain a conviction under 18

U.S.C. § 1519, the Government had to prove that the defendant knew that the

report would be part of a federal investigation. Because the Government offered

no evidence that Fontenot knew a federal investigation would follow the

altercation, he argues, there was insufficient evidence to convict him.




                                          4
      Fontenot is actually challenging the court’s § 1519 jury instruction under the

guise of an insufficient evidence claim: he argues that the Government was

required to and failed to offer evidence that he knew he would be obstructing a

federal investigation, but the court instructed the jury that the Government need

only prove that the investigation he intended to impede “did, in fact, concern a

matter within the jurisdiction of an agency of the United States.” Fontenot’s

argument, in essence, is that there was insufficient evidence to convict him under

the jury instruction that the court should have given. Because Fontenot did not

object to the court’s instruction, our review is limited to plain error. United States

v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998).

      To reverse under the plain error standard, there must be (1) error, (2) that is

plain, and (3) that affects the appellant’s substantial rights. United States v. Evans,

478 F.3d 1332, 1338 (11th Cir. 2007). If these conditions are satisfied, we have

discretion to recognize forfeited errors that seriously “‘affect[] the fairness,

integrity or public reputation of judicial proceedings.’” Id. (quoting United States

v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (per curiam)). An error is plain

when it “is ‘obvious’ and is ‘clear under current law.’” United States v.

Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (quoting United States v. Olano,

507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993)). “It is the law



                                            5
of this circuit that, at least where the explicit language of a statute or rule does not

specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam).

                                                  B.

       Fontenot’s argument fails because it is not clear under current law that §

1519 requires that the defendant know that the investigation will fall within the

jurisdiction of the federal government. To begin with, the text of the statute does

not clearly compel this interpretation. See United States v. DBB, Inc., 180 F.3d

1277, 1281 (11th Cir. 1999) (“The starting point for all statutory interpretation is

the language of the statute itself.”). In relevant part, § 1519 prohibits falsifying

documents “with the intent to impede, obstruct, or influence the investigation or

proper administration of any matter within the jurisdiction of any department or

agency of the United States.” (emphasis added). The plain statutory language does

not compel Fontenot’s desired interpretation; it is at least plausible to read the

second clause as a simple jurisdictional element that operates independently of the

defendant’s intent or knowledge.2



       2
          We make no holding regarding the actual requirements of the statute. For our
purposes, it is sufficient to observe that the statutory language is not so clear as to allow reversal
for plain error in the jury instructions.

                                                   6
       Moreover, the little legislative history addressing this clause does not clearly

resolve the issue in Fontenot’s favor. See DBB, Inc., 180 F.3d at 1281 (explaining

that a court will look at legislative intent when the plain meaning is ambiguous).

Senator Leahy, for example, submitted a report suggesting the opposite

interpretation:

       Section 1519 is meant to apply broadly to any acts to destroy or
       fabricate physical evidence so long as they are done with the intent to
       obstruct, impede or influence the investigation or proper
       administration of any matter, and such matter is within the jurisdiction
       of an agency of the United States, or such acts done either in relation
       to or in contemplation of such a matter or investigation.

S. Rep. No. 107-146, at 14 (2002).

       Lastly, the United States Supreme Court has not addressed this statute, and

this circuit has only published two cases interpreting § 1519, neither of which

addresses the issue Fontenot raises. In United States v. Hunt, 526 F.3d 739 (11th

Cir. 2008), a panel of this court upheld a § 1519 conviction against a challenge that

the statute did not give fair warning that it would apply to Hunt’s conduct as

required by the Due Process Clause of the Fifth Amendment.3 Id. at 741. Hunt, a

police officer, had falsified a police report to cover up the use of excessive force


       3
           The other published case, United States v. Hoffman-Vaile, 568 F.3d 1335 (11th Cir.
2009), does not address whether knowledge of federal jurisdiction is required at all. It holds (in
relevant part) that federal grand jury subpoenas fall under § 1519 because they are issued “‘in
relation to or contemplation of’ any matter ‘within the jurisdiction of any department or agency
of the United States[.]’” Id. at 1343 (quoting 18 U.S.C. § 1519) (alteration in original).

                                                 7
during an arrest and was later investigated by the FBI. Id. at 742. He argued that §

1519, which was passed as part of the Sarbanes-Oxley Act, was targeted at

corporate fraud, not conduct like his. Id. at 744. The Hunt court held that the

statute did give fair warning that it applied to Hunt’s conduct because a “person of

ordinary intelligence would understand a police report to be a ‘record’ or

‘document’” under the statute and would understand an FBI investigation to be a

“‘matter within the jurisdiction of [a] department . . . of the United States.’” Id. at

743 (quoting 18 U.S.C. § 1519) (alteration in the original). Hunt also challenged

the sufficiency of the evidence used to convict him, claiming the prosecution never

offered evidence of his intent. The court reviewed the circumstantial evidence

presented, including Hunt’s own testimony and evidence that Hunt knew the FBI

investigated claims of excessive force, and concluded that sufficient evidence did

exist to support the conviction. Id. at 745.

      Importantly, Hunt did not address whether § 1519 requires knowledge that

the investigation falls under federal jurisdiction. Hunt’s knowledge that the FBI

could investigate his conduct was relevant because it was used circumstantially to

establish Hunt’s intent to impede an investigation. The Hunt court never held that

knowledge of federal jurisdiction was an element of the offense; Hunt’s knowledge




                                            8
was merely sufficient in that case to prove intent.4 There is thus no circuit law that

clearly requires the government to prove that a defendant knows the investigation

falls under federal jurisdiction as Fontenot argues.

                                                 III.

       Because it is not clear under current law that the Government had to prove

that Fontenot knew his conduct could be subject to a federal investigation, the

district court’s instruction to the contrary was not plain error.5 Fontenot’s

conviction is therefore

AFFIRMED.




       4
           In his brief, Fontenot cites the following passage from Hunt to support his position:
“Adequate circumstantial evidence exists to support the jury’s conclusion. The Government put
forth evidence Hunt knew claims of excessive force would be investigated by the FBI . . . .”
United States v. Hunt, 526 F.3d 739, 745 (11th Cir. 2008). When read in context, this passage is
equivocal. The court was responding to Hunt’s argument that there was insufficient evidence to
prove he intended to obstruct the investigation because in his view the evidence showed that he
simply made a misstatement in his report. The court mentioned the FBI merely because that was
the law enforcement agency that had in fact investigated Hunt and because there was evidence
that Hunt had anticipated that investigation. Indeed, in addressing Hunt’s due process challenge
earlier in its opinion, the Hunt court wrote, “[w]e hold § 1519’s plain language placed Hunt on
notice that his action of knowingly making a false statement about the circumstances of
Woodard’s arrest with the intent to impede an FBI investigation was conduct sufficiently
proscribed by § 1519.” Id. at 744. This passage establishes only that intent to impede an FBI
investigation is sufficient to trigger § 1519—it does not make it clear that such intent is required.
       5
          Fontenot seems to argue in the alternative that there was insufficient evidence to
convict him under the jury instructions as given. This argument lacks merit. Fontenot testified
that he knowingly included false information in his use of force report and that he did so to
impede an investigation. An FBI agent testified about her FBI investigation into the altercation
between Fontenot and Milledge, from which a jury could infer that the investigation fell within
the jurisdiction of a federal agency or department.

                                                  9
BARKETT, Circuit Judge, specially concurring:

      I agree that we need not reach the merits in this case (as Mr. Fontenot has not

met his burden on plain error review), but I believe that the following additional

excerpts from the legislative history are illuminating.

      Chairman John Conyers, in introducing the legislation and reading from the

section-by-section analysis of the bill, noted that § 1519 created a new “felony

which could be effectively used in a wide array of cases where a person destroys or

creates evidence with the specific intent to obstruct a federal agency or a criminal

investigation.” 148 Cong. Rec. E463-01, E463 (daily ed. Apr. 9, 2002) (statement

of Rep. John Conyers, Jr.).

      Section 1519’s expansive scope is reaffirmed by Senator Leahy’s remarks

when introducing the bill he co-sponsored. Senator Leahy elaborated that for

prosecutions brought under § 1519, “[t]here would be no technical requirement that

a judicial proceeding was already underway or that the documents were formally

under subpoena.” 148 Cong. Rec. S1783-01, S1786 (daily ed. Mar. 12, 2002)

(statement of Sen. Leahy). Months later, Senator Leahy quoted a portion of the

section-by-section analysis of the bill to explain that while other statutes “such as

18 U.S.C. § 1503, ha[d] been narrowly interpreted by courts, including the Supreme

Court in United States v. [Aguilar], 115 S. Ct. 593 (1995), to apply only to



                                           10
situations where the obstruction of justice can be closely tied to a pending judicial

proceeding,” § 1519 was intended to “apply broadly” to remove these “technical

requirement[s], which some courts have read into other obstruction of justice

statutes, to tie the obstructive conduct to a pending or imminent proceeding or

matter by intent or otherwise.” Id. at S7419. Senator Leahy further quoted the

section-by-section analysis to emphasize that:

      The fact that a matter is within the jurisdiction of a federal agency is
      intended to be a jurisdictional matter, and not in any way linked to the
      intent of the defendant.

      Id.




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