                                                                    [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                       No. 10-12139                    JULY 10, 2012
                                 ________________________               JOHN LEY
                                                                          CLERK
                          D.C. Docket No. 8:09-cr-00263-RAL-TGW-1



UNITED STATES OF AMERICA,

lllllllllllllllllllll                                     Plaintiff - Appellee,

                                        versus

GARY B. AMSTER,

lllllllllllllllllllll                                     Defendant - Appellant.

                                ________________________

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

                                        (July 10, 2012)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         After Gary Amster lied about receiving the Congressional Medal of Honor

so that he could receive government benefits to which he was not entitled, he was
convicted of one count of making a false statement to the government, 18 U.S.C. §

1001(a)(2), and two counts of violating the Stolen Valor Act, 18 U.S.C. § 704(b),

(c). In this appeal, Amster raises two issues: (1) whether sufficient evidence

supports his conviction for making a false statement to the government and (2)

whether his other convictions should be vacated because the Stolen Valor Act

violates the right to free speech protected by the First Amendment. We conclude

that the government presented sufficient evidence for a reasonable jury to find that

Amster made a false statement to the government. But in the light of the recent

decision of the Supreme Court in United States v. Alvarez, --- S. Ct. ----, No.

11-210, 2012 WL 2427808 (2012), that the Stolen Valor Act is facially

unconstitutional, we vacate Amster’s convictions under the Act. We affirm in part

and vacate in part.

                                I. BACKGROUND

      Amster served in the Army during Vietnam but never saw combat. For his

service in Vietnam, Amster received the National Defense Service Medal, the

Vietnam Service Medal, and the Vietnam Campaign Medal. Most veterans who

served in Vietnam received these honors. Amster did not receive the Medal of

Honor or any other award for valor.

      In 2005, Amster requested that the Department of Veterans Affairs send him

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his DD-214 form. The Department of Defense maintains DD-214 forms for

former service members. The form summarizes major data with respect to a

service member’s military history, such as honors and awards.

      Amster altered his DD-214 form to reflect that he received the Medal of

Honor. On September 28, 2007, Amster recorded the falsified DD-214 form with

the circuit court clerk of Brevard County, Florida. In November 2007, Amster

sent a copy of the altered DD-214 form to Katrina Blas, an employee of Disabled

American Veterans. Additionally, on April 14, 2008, Amster called Veterans

Affairs to determine the status of a pending claim. During the call, Amster told a

representative that he had submitted paperwork to Veterans Affairs establishing

that he had received the Medal of Honor, and he asked that his records be updated.

The Veterans Affairs representative entered a note in the computer system for the

Department stating that Amster received the Medal of Honor.

      The President has the power to “award, and present in the name of

Congress, a medal of honor . . . to a person who, while a member of the Army,

distinguished himself conspicuously by gallantry and intrepidity at the risk of his

life above and beyond the call of duty . . . while engaged in an action against an

enemy of the United States; [or] while engaged in military operations involving

conflict with an opposing force . . . .” 10 U.S.C. § 3741. The Medal of Honor is

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the highest award for gallantry in combat awarded by the United States. Only 161

soldiers who served in Vietnam received the Medal of Honor. Veterans Affairs

must pay Medal of Honor recipients a substantial monthly pension.

      At trial, Lieutenant Colonel Stewart Stephenson testified for the

government. Stephenson is the chief of the United States Army Human Resources

Command Awards and Decorations Branch. Stephenson explained the extensive

process for awarding Medals of Honor:

             Ideally, the Medal of Honor recommendation will come
             from somebody with personal knowledge of the action or
             the event of heroism. They will be processed up through
             the war time chain of command. Ultimately, they’ll get to
             our office, we will review it. From our office, it goes to the
             Pentagon, through the Secretary of Defense and the Joint
             Chiefs of Staff, and ultimately ends up in the White House
             for Presidential approval.

Stephenson further explained that “[e]ach [armed] service Secretary has the

responsibility for maintaining a roll of all of the [Medal of Honor recipients] for

that individual service,” and that his office maintained the Medal of Honor roll for

the Army.

      Collette Burgess testified that she had worked for Veterans Affairs for 13

years. Veterans Affairs employs Burgess as an “assistant service center manager,”

which Burgess described as “a management position.” Burgess explained that,


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when a veteran notifies Veterans Affairs that he received the Medal of Honor, the

Department, “search[es] the Medal of Honor roll which is maintained by the

Center for Military History in order to determine whether or not that person is, in

fact, listed on the roll of [the] Medal of Honor.” Burgess also stated that, “the

Secretary of the branch of service that granted the Medal of Honor would send [a

confirmation] to the Secretary of Veterans Affairs and we would get the

correspondence from–we would get the certificate, we would get correspondence

from the branch of service that says it’s awarded.”

      With respect to Amster, Burgess testified that “[w]e looked at the Medal of

Honor roll, we reviewed the file, we reviewed the official military personnel file

that we had in our records to see if [confirmation that Amster received the Medal

of Honor] was in there, and none of that correspondence was there.” Although the

government concedes that Burgess reviewed Amster’s file after learning that

Amster was under investigation, Burgess testified that the Department would have

taken these steps as part of the regular claims process even if she had not been

notified of the investigation.

      Jennifer Biglow testified that on April 14, 2008, she spoke with Amster

over the telephone and that he stated that he had received the Medal of Honor. As

a result of Amster’s misrepresentation, Biglow entered this false information into

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the computer system for Veterans Affairs. She testified that she entered “CONGR.

MEDAL of HONOR” in all capital letters because the Medal of Honor is “special,

it’s very rare,” and she wanted to ensure that anyone looking through the computer

system for the status of Amster’s pending claims would be aware of this

information.

      At the close of the government’s case-in-chief, Amster moved the district

court for a judgment of acquittal. Amster maintained that the district court should

acquit him as to counts one and two for reasons not relevant to this appeal.

Amster then argued that the government failed to introduce sufficient evidence to

prove that the false statement charged in count three was material. After hearing

oral argument from both parties, the district court denied Amster’s motion. The

jury convicted Amster on all counts.

      After trial, Amster timely renewed his motion for a judgment of acquittal.

Amster again asserted that the evidence was insufficient to support the materiality

element of the false statement charge. Amster then asserted for the first time that

the Stolen Valor Act was unconstitutional. The district court denied Amster’s

motion on the ground that, “[t]he evidence, when viewed in the light most

favorable to the Government, was more than sufficient to sustain the jury’s

determination to find Defendant guilty beyond a reasonable doubt as to all three

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counts of the [superseding] indictment.” The district court summarily rejected

Amster’s constitutional challenge to the Stolen Valor Act. The district court

sentenced Amster to concurrent one-year terms of probation for counts one and

two of the superseding indictment and to a five-year term of probation for count

three of the superseding indictment.

                         II. STANDARDS OF REVIEW

      Two standards of review govern this appeal. “We review de novo [the]

district court’s denial of judgment of acquittal on sufficiency of evidence

grounds.” United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). We

consider the evidence in the light most favorable to the government, and we draw

all reasonable inferences in favor of the government. Id. “If a reasonable jury

could conclude that the evidence establishes guilt beyond a reasonable doubt, we

will affirm the verdict.” Id. “We review the constitutionality of statutes de novo.”

United States v. Phaknikone, 605 F.3d 1099, 1107 (11th Cir. 2010).

                                III. DISCUSSION

      We divide our discussion in two parts. We first address whether sufficient

evidence supported Amster’s conviction for making a false statement. We then

address whether the Stolen Valor Act violates the right to free speech protected by

the First Amendment.

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     A. Sufficient Evidence Supports Amster’s Conviction for Making a False
                                    Statement.

      Count three of the superseding indictment alleged that Amster knowingly

and willfully made a materially false statement in a matter within the jurisdiction

of the executive branch of the federal government when he told an employee of

Veterans Affairs that he had been awarded the Medal of Honor. Section

1001(a)(2) states that “whoever, in any matter within the jurisdiction of the

executive, legislative, or judicial branch of the Government of the United States,

knowingly and willfully . . . makes any materially false, fictitious, or fraudulent

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

or both.” 18 U.S.C. § 1001(a)(2). “To sustain a conviction [under this statute],

the government must prove (1) that a statement was made; (2) that it was false; (3)

that it was material; (4) that it was made with specific intent; and (5) that it was

within the jurisdiction of an agency of the United States.” United States v. Boffil-

Rivera, 607 F.3d 736, 740 (11th Cir. 2010).

      Amster does not dispute that the government proved beyond a reasonable

doubt that he made a statement, that the statement was false, or that he made the

statement with specific intent. Amster challenges the sufficiency of the evidence



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with respect to the materiality and jurisdictional elements of section 1001. We

address the sufficiency of the evidence as to both elements in turn.

                   1. Amster Made A Material False Statement.

      Amster argues that his false assertion to Veterans Affairs that he received

the Medal of Honor was not material because Veterans Affairs “performs its duties

according to law and is not sidetracked by any comments that a veteran might

make.” The government responds that Amster’s false statement was material

because it could have caused Veterans Affairs to waste time and resources

investigating whether Amster received the Medal of Honor.

      The legal standard of materiality is well-settled:

             Deciding whether a statement is “material” requires the
             determination of at least two subsidiary questions of purely
             historical fact: (a) “what statement was made?” and (b)
             “what decision was the agency trying to make?” The
             ultimate question: (c) “whether the statement was material
             to the decision,” requires applying the legal standard of
             materiality . . . to these historical facts.”

United States v. Gaudin, 515 U.S. 506, 512, 115 S. Ct. 2310, 2314 (1995). “The

statement must have a natural tendency to influence, or [be] capable of

influencing, the decision of the decisionmaking body to which it was addressed.”

Boffil-Rivera, 607 F.3d at 741. “The government is not required to prove that the

statement had actual influence.” Id. “The false statement must simply have the

                                          9
capacity to impair or pervert the functioning of a government agency.” Id.

(internal quotation marks omitted). “The statement does not have to be relied

upon and can be material even if it is ignored and never read.” Id. at 742 (citing

United States v. Diaz, 690 F.2d 1352, 1358 (11th Cir. 1982)). The parties do not

dispute that Amster falsely represented to Veterans Affairs that he received the

Medal of Honor.

      The evidence at trial was sufficient for the jury to find that Amster’s false

statement was material. As Burgess testified, when a veteran notifies Veterans

Affairs that he received the Medal of Honor, the Department, “search[es] the

Medal of Honor roll which is maintained by the Center for Military History in

order to determine whether or not that person is, in fact, listed on the roll of [the]

Medal of Honor.” If a veteran is listed on the Medal of Honor roll, Veterans

Affairs is required to pay the veteran a substantial monthly pension. Although the

government concedes that Veterans Affairs conducted an investigation into

whether Amster had received the Medal of Honor only after it learned that Amster

was under investigation, this Court has previously held that the false statement

“does not have to be relied upon and can be material even if it is ignored and never

read.” Id.

   2. Amster’s False Statement Was Within the Jurisdiction of Veterans Affairs.

                                           10
      Amster contends that the evidence presented at trial was insufficient for a

reasonable jury to find that Amster’s false statement fell within the jurisdiction of

Veterans Affairs. Amster argues that Veterans Affairs lacks the authority to

determine who is entitled to the Medal of Honor. This argument fails.

      “The United States Supreme Court has stated that jurisdiction within the

meaning of section 1001 should not be narrowly or technically defined.” United

States v. Herring, 916 F.2d 1543, 1547 (11th Cir. 1990) (citing United States v.

Rodgers, 466 U.S. 475, 480, 104 S. Ct. 1942, 1996 (1984)). As the Supreme

Court has explained, “the phrase ‘within the jurisdiction’ merely differentiates the

official, authorized functions of an agency or department from matters peripheral

to the business of that body.” Rodgers, 466 U.S. at 479, 104 S. Ct. at 1946.

“[Section 1001] is necessarily couched in very broad terms to encompass the

variety of deceptive practices which ingenious individuals might perpetrate upon

an increasingly complex government.” United States v. Gafyczk, 847 F.2d 685,

690 (11th Cir. 1988) (quoting United States v. Massey, 550 F.2d 300, 305 (5th

Cir. 1977)) (internal quotation marks omitted) (alteration in original).

      The evidence produced at trial was sufficient for the jury to find that the

jurisdictional element was satisfied. As Burgess testified, after a veteran asserts

that he is a recipient of the Medal of Honor, Veterans Affairs must determine

                                          11
whether the assertion is valid. Based on this evidence, the jury could have

reasonably found that determining who has been awarded the Medal of Honor is

an “official, authorized function[] of [Veterans Affairs]” and is not “peripheral to

the business of that body.” Rodgers, 466 U.S. at 479, 104 S. Ct. at 1946.

                   B. The Stolen Valor Act is Unconstitutional.

      Counts one and two of the superseding indictment alleged that Amster

violated the Stolen Valor Act when he falsely claimed on two occasions that he

had received the Medal of Honor. Amster argues that the Stolen Valor Act is

facially unconstitutional as a content-based regulation of protected speech. In the

light of the recent decision of the Supreme Court in United States v. Alvarez, --- S.

Ct. ----, No. 11-210, 2012 WL 2427808 (2012), that the Stolen Valor Act is

facially unconstitutional, we agree.

                                IV. CONCLUSION

      We AFFIRM in part Amster’s judgment of conviction and sentence for

making a false statement to the government, and we VACATE in part Amster’s

judgment of convictions and sentences for violating the Stolen Valor Act.




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