                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2492




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"USA v. Silman" (2008). 2008 Decisions. Paper 807.
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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                  __________

                     No. 07-2492
                     __________

          UNITED STATES OF AMERICA

                           v.

                JESSICA L. SILMAN,

                                            Appellant

                     __________

    On Appeal from the United States District Court
        for the Western District of Pennsylvania
            (D.C. Criminal No. 06-cr-00035)
     District Judge: Honorable Sean J. McLaughlin
                      __________

      Submitted Under Third Circuit LAR 34.1(a)
                  on June 30, 2008

Before: RENDELL, SMITH, and FISHER , Circuit Judges.

                (Filed: July 24, 2008)
                     __________

             OPINION OF THE COURT
                   __________
RENDELL, Circuit Judge.

       Jessica Silman appeals her conviction for making a false, fictitious, and fraudulent

statement to government officers in violation of 18 U.S.C. § 1001(a)(2). For the reasons

that follow, we will affirm Silman’s conviction.

       Because we write for the parties, we set out only those facts which are pertinent to

our analysis. On December 9, 2005, Anthony Rodrigues, a confidential informant,

informed FBI agents of a conspiracy between himself, Joshua Rovnak, and Jarrod Ross,

Silman’s boyfriend, to rob a bank in Erie, Pennsylvania. Later that day, Rodrigues,

wearing a recording device provided by the FBI, engaged Ross and Silman in a

conversation regarding the details of the robbery plan. On December 12th, before the

planned robbery could occur, police apprehended Ross and Rovnak outside the National

City Bank identified as the target of the robbery.

       FBI agents questioned Silman about her involvement in and knowledge of the

bank robbery on two occasions. On December 12, 2005, in response to the agents’

questions, Silman lied about her name and her birth date and indicated she had no

knowledge of the robbery plan. In an interview conducted by FBI and state police agents

on December 15, 2005, after being advised of the content of 18 U.S.C. § 1001,

specifically having read a copy of § 1001, and admitting that she may have made a false

statement in violation of subsection (2) on December 12th, Silman told agents that she



                                             2
may have heard Rovnak and Rodrigues discuss plans to rob a bank, but never heard Ross

speak of a bank robbery. FBI agents then presented Silman with recordings of telephone

conversations she had with Ross while he was detained in Erie County Prison after his

arrest. In the recordings, Ross and Silman discuss the bank robbery. Even after listening

to these recordings, Silman continued to deny both her own and Ross’s involvement in

the robbery. Before the two interviews, the agents knew Silman’s role only as revealed

on the recordings. They did not know whether she had any role beyond that or whether

there were any additional co-conspirators or illegal activity.

       On June 13, 2006, a grand jury in the Western District of Pennsylvania returned

an indictment charging appellant Jessica Silman with the violation of 18 U.S.C.

§ 1001(a)(2). The indictment charged that Silman made a materially false statement when

she stated she had no knowledge of any plan to commit bank robbery. On January 23,

2007, a jury found Silman guilty. On May 4, 2007, the District Court sentenced her to six

months’ imprisonment to be followed by two years’ supervised release. Silman filed a

timely notice of appeal.

       On appeal, Silman contends that her conviction for knowingly and willfully

making a materially false, fictitious, and fraudulent statement was based on insufficient

evidence because the Government failed to show that the statements were material.

       In reviewing the sufficiency of the evidence, “[w]e must view the evidence in the

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



                                              3
have found the elements of a crime beyond a reasonable doubt.” United States v.

Cartwright, 359 F.3d 281, 286 (3d Cir. 2004). The Supreme Court has held that

materiality is an element under 18 U.S.C. § 1001 and that the question of whether a

statement is material must be answered by the jury. United States v. Gaudin, 515 U.S.

506, 522-23 (1995); see also Johnson v. United States, 520 U.S. 461 (1997).

       Materiality of a statement does not turn on whether the investigators would have

believed the statement or whether the statement influenced the investigation. United

States v. McBane, 433 F.3d 344, 351 (3d Cir. 2005) (citing Brogan v. United States, 522

U.S. 398 (1998)). Rather, a statement is material if it is of a type “capable of influencing

a reasonable decisionmaker.” Id. (emphasis in original). In McBane, we concluded that

a defendant’s denial of criminal conduct was material despite agents’ knowledge of its

falsity because it would still normally have been capable of influencing a criminal

investigation. Id. at 352. Here too, it does not matter that Silman’s statements did not

actually influence the agents. The jury could have found that, like the defendant’s false

statements in McBane, Silman’s false statements were material because they were of a

type capable of influencing a reasonable decisionmaker investigating the scope of the

conspiracy and the degree of responsibility of the persons who may have been involved.

Viewing the evidence in the light most favorable to the government, we find no basis for

overturning the jury’s verdict.




                                              4
       For the foregoing reasons, we will AFFIRM the Judgment and Commitment Order

of the District Court.




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