                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              MAY 3 2004
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                           No. 03-1226
          v.                                                (D. Colorado)
 RONALD D. FAILING,                                         (02-CR-532-B)

               Defendant-Appellant.


                            ORDER AND JUDGMENT              *




Before HENRY , BALDOCK , and MURPHY , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to decide this case on the briefs without oral argument. See F ED . R.

A PP . P. 34(f). The case is therefore ordered submitted without oral argument.

      Ronald Failing appeals his conviction for making a false statement in

violation of 18 U.S.C. § 1001.       Mr. Failing, a former railroad engineer, pleaded

guilty to one count (count 12) of withholding employment information from the

Railroad Retirement Board on his Continuing Disability Form, in exchange for the


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
dismissal of ten counts of a twelve-count indictment. The parties agreed to

proceed to a bench trial on the remaining count (count eleven), which charged the

violation of § 1001. Mr. Failing was convicted and sentenced to a five-year term

of probation on count 12 and a concurrent 5-year term of probation on count 11.

      On appeal, Mr. Failing asserts that because the answers he provided on the

relevant form were literally true, his conviction cannot stand. He also asserts that

there was a fatal variance between the indictment and the evidence presented at

trial. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm Mr. Failing’s

conviction and sentences.



                                I. BACKGROUND

      Mr. Failing began working as a railroad engineer in October 1965. In June

1989, he applied for a disability annuity, administered by the Railroad Retirement

Board. Mr. Failing was required to complete an application for determination of

his disability. He signed the application certifying that he understood he was

required to report events that would affect his receipt of benefits; for example, he

was required to notify the Board if he performed any work. Mr. Failing also

certified that he understood that he would be committing a federal offense if he

made a false or fraudulent statement in order to receive benefits from the Board.




                                         -2-
      Mr. Failing also certified that he received a booklet from the Board, which

explained, among other things, that the disability annuity was not payable for any

month that a person performs work and earns income over $400. The booklet

again cautioned the applicant of his or her obligation to promptly report any work,

regardless of the income earned.

      In April 1990, the Board determined that Mr. Failing was eligible for

disability payments. From that date through August 2002, when his benefits

ended, he received a monthly annuity from the Board. Once a year, the Board

sent Mr. Failing and other beneficiaries a notice reminding them of their duty to

notify the Board in the event they performed any paid work. The notice stated

that the beneficiaries must return their annuity for any month during which

earnings from that work exceeded $400, and it repeated the threat to prosecute

wrongdoers.

      In early 2002, the Board sent a “Continuing Disability Report” to Mr.

Failing. Mr. Failing was required to complete the report, which asked for

information from March 1, 1997, until the present, and return it to the Board. He

returned the form in February 2002.

      In Section 3, titled “Information about Work for an Employer,” Mr. Failing

indicated that between April 2000 and September 2001, he had worked one day a

month for the North Jeffco Recreation District as a marshal supervisor of a public


                                         -3-
golf course, earning $8.50 per hour. He indicated he worked approximately “2 to

3 day[s] per month for 5 months” for that district. Aplt’s Br. att. D. at 2. Mr.

Failing wrote “N/A” in response to queries about additional employers. Id.

      In October 2001, Mr. Failing accepted a job as a security screener for First

Watch Security Services at Denver International Airport. Mr. Failing

acknowledges that his monthly earnings from this job exceeded $400. During his

employment, which lasted until August 2002, Mr. Failing continued to receive a

monthly disability annuity.

      In August 2002, an agent from the Board’s Office of Inspector General

interviewed Mr. Failing, who admitted that he failed to inform the Board of his

employment. Mr. Failing indicated that he understood that any such disclosure

would have caused his benefits to end, and he feared losing his home in the event

the Board terminated his monthly annuity.

      As a result, the government indicted Mr. Failing on ten counts of unlawful

receipt and retainment of government benefits, in violation of 18 U.S.C. §§ 641

and 2; one count of making a false statement of material fact in violation of 18

U.S.C. § 1001; and one count of failing to inform the Board of income that he

earned while receiving disability benefits from the Board, in violation of 45

U.S.C. § 231(1). Mr. Failing pleaded guilty to the § 231(1) charge, in exchange




                                         -4-
for the dismissal of the ten counts of unlawful receipt of benefits. As to the §

1001 charge, the parties agreed to a bench trial based on stipulated facts.

                                   II. DISCUSSION

      Mr. Failing challenges his conviction contending (1) there was insufficient

evidence to sustain a false statement conviction, and (2) there was a constructive

amendment to the indictment. We reject each challenge and affirm Mr. Failing’s

conviction.

      A. Sufficiency of evidence

      In considering Mr. Failing’s first argument, we ask “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) (emphasis deleted); United

States v. Wilson, 244 F.3d 1208, 1219 (10th Cir. 2001). Our review of the record

is de novo, and we draw all reasonable inferences in the light most favorable to

the government. Wilson, 244 F.3d at 1219. We do not reevaluate the credibility

of witnesses or weigh the evidence presented at trial. Id.

      Count eleven charged Mr. Failing with the knowing and willful making and

causing

              to be made false, fictitious and fraudulent statements and
              representations as to material facts [and] stated and
              represented to the . . . Board . . . that he was then disabled
              and employed 1 day per month working 2 hours per day

                                           -5-
             and earing 8.50 per hour, whereas, in truth and fact . . . he
             had gross income and wages from employment in excess
             of $1,000.00 a month for the period of approximately
             October, 2001 through August, 2002.


Rec. vol. I, doc. 1, at 2 (Indictment).

      Title 18 § 1001(a) provides that anyone who

             (1) falsifies, conceals, or covers up by any trick, scheme,
             or device a material fact;
             (2) makes any materially false, fictitious, or fraudulent
             statement or representation; or
             (3) makes or uses any false writing or document knowing
             the same to contain any materially false, fictitious, or
             fraudulent statement or entry;

             shall be fined under this title or imprisoned not more than
             5 years, or both.

Id. (emphasis added). Accordingly, to convict Mr. Failing, the government had to

prove five elements:

             (1) the defendant made a statement; (2) the statement was
             false, fictitious, or fraudulent as the defendant knew; (3)
             the statement was made knowingly and willfully; (4) the
             statement was within the jurisdiction of the federal agency;
             and (5) the statement was material.

United States v. Harrod, 981 F.2d 1171, 1175 (10th Cir. 1992) (internal quotation

marks omitted). Mr. Failing contends that the government cannot establish the

second element – that the statement was “false, fictitious, or fraudulent as the

defendant knew.” Id.




                                          -6-
       He maintains that because his statements in the Continuing Disability

Report as to his past employment at the public golf course were true statements,

he cannot be convicted of violating § 1001. Furthermore, as to his omission of

providing information regarding his job at DIA, he contends that count twelve of

the indictment did not encompass this omission, because it charged him with

“[f]ailing to [r]eport . . . [i]nformation.” Rec. vol. I, doc. 1, at 3.

       We are not persuaded by Mr. Failing’s argument. The Continuing

Disability Report signed by Mr. Failing requested him to report his most recent

employment, and then to report his “second last employer.” Aplt’s Br. att. D, at

2. There is no question Mr. Failing provided an incomplete answer. We have

held that a nonresponsive answer, even if literally a truthful answer, can be the

basis of a conviction under § 1001. See Harrod, 981 F.2d at 1175 (upholding a

conviction under § 1001 and stating that “[w]hen seeking information outside the

adversarial context of trial, the government needs and expects those who answer

its inquiries . . . to answer truthfully and precisely”). Furthermore the form

clearly stated that “I understand that civil and criminal penalties may be imposed

upon me for false or fraudulent statements, or for withholding information to

misrepresent a fact or facts material to determining a right to benefits under the

Railroad Retirement Act.” See Aplt’s Br. att. D, at 15 (emphasis added); see also

United States v. Goodson, 155 F.3d 963, 967 (8th Cir. 1998) (upholding



                                            -7-
conviction under § 1001: “Based upon our review of the record, we are satisfied

that the government produced ample evidence to support a finding that

[defendant’s] statement to the SSA was a bald, intentional misrepresentation of

his work activities.”). Mr. Failing admitted that he knew his benefits would

terminate if he had reported his work at DIA. We hold that, drawing all

reasonable inferences in the government’s favor, there was sufficient evidence to

convict Mr. Failing of violating § 1001.

      B. Constructive amendment to the indictment

       Mr. Failing next alleges a fatal variance between the proof adduced at trial

and the conduct charged in the indictment. He concedes that had the indictment

charged him with concealing a material fact or withholding information, that a

conviction might have ensued. Because the indictment did not encompass the

concealment or omission of a material fact from the Continuing Disability Report,

but rather the falsity of a statement, he maintains, the district court constructively

amended the indictment, and this variance violated his due process rights.

       We review de novo the issue of whether there was a fatal variance between

the allegations of the indictment and the evidence presented at trial. United

States v. Williamson, 53 F.3d 1500, 1512 (10th Cir. 1995). Variances between

conduct charged in an indictment and proof at trial are of three kinds: harmless,

fatal and fatal per se. Hunter v. New Mexico, 916 F.2d 595, 598-99 (10th Cir.



                                           -8-
1990). At one end of the spectrum is the simple variance which occurs “when the

charging terms are unchanged, but the evidence at trial proves facts materially

different from those alleged in the indictment.” Id. at 598 (internal citation and

quotation omitted). We apply harmless error analysis to a simple variance. At the

other end of the spectrum “are more severe alterations described as ‘constructive

amendments’ to the indictment.” Id. “An indictment is constructively amended if

the evidence presented at trial, together with the jury instructions, raises the

possibility that the defendant was convicted of an offense other than that charged

in the indictment.” Id. (internal quotation marks omitted). “A variance which

rises to the level of a constructive amendment is reversible per se.” Id.; see

United States v. Mills, 29 F.3d 545, 548 (10th Cir. 1994) (“A constructive

amendment that broadens an indictment is reversible error per se, because only

the grand jury can amend an indictment.”).

      We disagree with Mr. Failing’s suggestion that any sort of variance exists.

Mr. Failing was charged with making “false, fictitious and fraudulent statements

and representations as to material facts” by claiming he was only working one day

a month at a golf course when in fact he knew he had “gross income and wages

from employment in excess of $1,000.00 a month” between October 2001 and

August 2002. Rec. vol. I, doc. 1, at 2-3. Mr. Failing’s responses regarding his

employment were unquestionably false and/or fraudulent: he did not provide



                                          -9-
details regarding his most recent employment, and he responded “N/A” when

asked about other employment and income.

      We also reject Mr. Failing’s contention that he did not have notice of what

the government intended to prove at trial. See Williamson, 53 F.3d at 1514

(stating “the defendants cannot reasonably claim they did not have notice of what

the government intended to prove at trial, which, as stated before, is the central

purpose behind the prohibition against simple variances”). Finally, we reject his

suggestion that his conviction on count eleven raises double jeopardy concerns,

because Congress has separately proscribed both the making of false statements,

and the willful failing to report information. See United States v. Woodward, 469

U.S. 105, 109 (1985) (rejecting double jeopardy challenge to convictions under 18

U.S.C. § 1001 (false statement) and a count under 31 U.S.C. § 1101(a) (willfully

failing to report the transporting of more than $5,000), noting that the “statutes

are directed towards separate evils”) (internal quotation marks omitted).

                                 III. CONCLUSION

      For the reasons stated above, we   AFFIRM Mr. Failing’s conviction and
sentence.



                                                Entered for the Court


                                                Robert H. Henry
                                                Circuit Judge

                                         -10-
