USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 1 of 40

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4414

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

ALEXANDER SAMUEL SMITH, a/k/a Amir Alexander,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:17−cr−00182−MOC−DSC−1)

Argued: March 11, 2022 Decided: December 1, 2022

Before GREGORY, Chief Judge, and DIAZ and HEYTENS, Circuit Judges.

Affirmed in part, reversed in part, judgment vacated, and case remanded for resentencing by published per curiam opinion, in which Chief Judge Gregory and Judge Heytens joined in full. Judge Diaz joined the per curiam opinion in part. Judge Heytens wrote a concurring opinion. Judge Diaz wrote an opinion dissenting in part.

ARGUED: James Walter Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC, Asheville, North Carolina; Allie Jordan Hallmark, HAMILTON WINGO LLP, Dallas, Texas, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Charles D. Swift, CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson, Texas, for Appellant. William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 2 of 40

PER CURIAM:

A jury convicted Alexander Samuel Smith on two counts of lying to the FBI,

violating

(a)(2). The district court sentenced him to concurrent 60-month

prison terms. On appeal, Smith challenges (1) the district court’s denial of his motion to

dismiss Count Two of his indictment as multiplicitous, (2) the sufficiency of the evidence

supporting the jury’s verdict, (3) the district court’s allegedly prejudicial statements to the

jury, (4) the district court’s refusal to give an entrapment instruction, and (5) the district

court’s application of a terrorism enhancement at sentencing.

As explained below, we reverse the district court’s denial of the motion to dismiss

Count Two, vacate the judgment, and remand for resentencing. We otherwise affirm.

I.

A.

Acting on an informant’s tip, the FBI began investigating Smith in the summer of

2014. Smith had asked the informant for help in traveling to Syria to participate in its civil

war. As far as the investigating agents knew, Smith wanted to join the armed conflict

between Syria’s government and various factional forces, including the Islamic State of

Iraq and Syria (“ISIS”). 1 ISIS had recently solicited Westerners to join its fight.

Agents soon learned of a connection between Smith and the Kodaimatis—a father

and son who were already under federal investigation for supporting ISIS. Smith once

1 The United States had long designated ISIS a terrorist organization.

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worked for the Kodaimatis and traveled to Syria with them in 2006. Based on that

connection and the informant’s tip, agents became concerned that Smith was considering

joining ISIS in Syria. So agents had the informant refer Smith to a second informant, Abu

Khalid. Khalid would act as an ISIS recruiter who could facilitate Smith’s travel plans.

Smith contacted Khalid and scheduled an in-person meeting for August 2014. At

the meeting, Smith told Khalid that he wanted to return to Syria to help defend a family

whom he had once visited. Smith explained that the family lived near a city divided

between three warring groups, including ISIS.

Khalid responded that he was helping “brothers” go to Syria to join ISIS. S.J.A. 2. 2

He asked Smith whether he “wanted to be with” the “leader of ISIS.” J.A. 665. Smith

answered, in Arabic, “inshallah.” J.A. 665. But if Smith wanted to join ISIS, Khalid said,

he would have to pledge allegiance to the group’s leader. Khalid explained that Smith

would be “going to fight . . . under command of” ISIS, asking whether Smith would accept

that. S.J.A. 8. Smith again responded in Arabic: “[n]a’am.” S.J.A. 8. Khalid later testified

that “inshallah” and “na’am” were affirmations.

For his part, Smith discussed his ability to fight, telling Khalid that he knew about

hand-to-hand combat and weapons but lacked formal training. Before leaving, Smith

mentioned that he had a passport and would be ready to travel in a few weeks. The pair

made plans to talk again.

2 Citations to the “S.J.A.” refer to the Supplemental Joint Appendix filed in this appeal.

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Between August and November 2014, Smith and Khalid met three more times. In

their second and third meetings, Smith reaffirmed his desire to travel to Syria. Khalid told

Smith that he’d be “expected to kill for ISIS if he went to Syria,” and Smith said it would

be “no problem.” J.A. 693.

Because Smith often mentioned that he didn’t have the money to buy his airfare to

Syria, Khalid introduced Smith to Bilal, a third informant, to help him earn money for the

trip. Bilal worked with Smith on odd jobs, including construction projects and car

restorations. In the fourth meeting with Khalid, Smith offered to obtain discount airfare

(or, a “buddy pass”) for Khalid should he ever need it. Smith’s then-girlfriend worked in

customer service for an airline and could buy such passes.

Smith and Khalid didn’t meet again until March 2015. Khalid asked Smith if he’d

be able to get a buddy pass for Mohamed Hilal, a fictitious person the FBI had invented.

Khalid told Smith that Hilal was important to ISIS and planning to travel to Syria.

Using another person’s credit card, Smith and his girlfriend bought Hilal the pass.

But when the pass went unused, Smith emailed Khalid to ask what happened. Khalid

responded that Hilal got confused and didn’t use the pass. Smith then cut off all contact

with Khalid, saying he couldn’t “have anything to do with this.” S.J.A. 80.

B.

In February 2016, the FBI coordinated with the U.S. Attorney’s Office in the

Western District of North Carolina to issue a grand jury subpoena for Smith’s now-wife.

After his wife received the subpoena, Smith called the FBI and spoke with Agent Ronald

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Godfrey—one of the agents investigating him. Smith agreed to visit the FBI’s office and

“explain the circumstances about [the] buddy pass.” J.A. 537.

Godfrey, armed with knowledge of Smith’s communications with Khalid,

interrogated Smith. Godfrey asked Smith whether he spoke with Khalid about “possibly

going to Syria,” and Smith replied, “no.” S.J.A. 81 at 1:55:55–1:56:00. 3 Godfrey also

asked, “[H]ave you ever talked with anyone that you expressed to someone that you wanted

to go to Syria and fight?” J.A. 797. Smith answered, “No, I’ve told them that I wished

there was something I could do for people, but I never had any plans to go there and do

anything.” J.A. 797. And Godfrey asked if Smith had ever “talked with anyone that

[Smith] wanted to go to Syria and join ISIS.” J.A. 798. Smith responded, “No, we’ve

talked – I talk to numerous – you have to understand the Muslim community. There’s so

much stuff going on now in the Muslim community with everything.” J.A. 798. Though

Godfrey warned Smith that he could get in trouble for lying to the FBI, providing a copy

of § 1001, Smith stood firm that he never had any plan or intent to go to Syria.

Godfrey’s questioning then turned to Hilal. Godfrey asked Smith if he knew that

Hilal “was planning to use the buddy pass” to travel to Syria and join ISIS. S.J.A. 81 at

2:04:55–2:05:20. Smith said that he didn’t know “anything [Hilal] was planning to do”

and that he “didn’t know what [Hilal] had in his mind [or] what his plans were.” S.J.A. 81

at 2:05:20–2:05:30.

3 S.J.A. 81 refers to a series of sequentially timestamped video exhibits on file with the Clerk of Court.

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C.

A grand jury indicted Smith on two counts of making a materially false statement

to a federal agent in violation of

(a)(2). Count One charged Smith with

“falsely stating to FBI Special Agents then investigating a matter involving international

terrorism that he had never discussed his desire or plans to travel to Syria.” J.A. 20. Count

Two charged him with telling the FBI “he did not know that [Hilal] intended to use the

buddy pass procured by [Smith] to travel and support ISIS.” J.A. 21. Smith moved to

dismiss Count Two as multiplicitous, but the district court denied his motion.

The case proceeded to a jury trial. The government called four witnesses: Godfrey,

Khalid, an expert on ISIS and other terrorist organizations, and an airline employee. The

jury also heard recordings of Smith’s conversations with Godfrey and Khalid. 4

At the close of the government’s case, Smith moved for a judgment of acquittal

under Federal Rule of Criminal Procedure 29. Smith argued that the government hadn’t

shown that he knowingly and willfully made a false statement or that his statements were

material to the FBI’s investigation. The district court denied Smith’s motion. Smith then

recalled Godfrey before unsuccessfully renewing his Rule 29 motion at the close of all

evidence.

Smith asked the district court to instruct the jury on an entrapment defense. He

claimed the FBI had instigated him to commit his alleged crimes through the subpoena and

4 Relevant on appeal, the court said in overruling a government objection during Godfrey’s cross-examination, “we have two counts of a violation of 1001, which indicate that there were . . . two falsehoods here.” J.A. 835. 6 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 7 of 40

other pressure tactics the agency employed on his wife. The court declined, reasoning that

Smith hadn’t shown that the FBI induced him to lie. The court did, however, instruct the

jury on informants, explaining that “the government is lawfully permitted to use decoys

and deception to conceal the identity of its informants.” J.A. 982.

The jury returned a guilty verdict on both counts and found that each offense

involved international terrorism.

D.

Smith’s presentence investigation report first recommended a 63- to 78-month

prison term, based on a total offense level of 26 and a criminal history category of I. But

the government objected, arguing that U.S.S.G. § 3A1.4’s terrorism enhancement should

apply. The probation office agreed with the government, increasing Smith’s total offense

level to 32 and his criminal history category to VI. Smith’s Guidelines sentence became

192 months’ imprisonment—the statutory maximum.

The district court later overruled Smith’s objection to the terrorism enhancement

but varied downward, imposing two concurrent 60-month terms of imprisonment and three

years’ supervised release. The court certified that its sentence would be appropriate

regardless of the terrorism enhancement.

This appeal followed.

II.

We begin with Smith’s claim that the district court erred by declining to dismiss

Count Two as multiplicitous. “The rule against multiplicity is rooted in the Double

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Jeopardy Clause of the Fifth Amendment” and protects against “the imposition of

cumulative punishments for the same offense in a single criminal trial.” United States v.

Shrader,

(4th Cir. 2012).

To determine whether convictions are multiplicitous, courts must first identify

“[w]hat Congress has made the allowable unit of prosecution.”

The controlling

question is, thus, whether Congress intended the unit of prosecution under § 1001 to be a

single statement. Such an interpretation would allow a defendant to be charged separately

for each false statement made during a single interview. But, if “Congress fails to define

the criminal unit or the legislative intent in this regard is ambiguous, any ambiguity should

be resolved in favor of lenity.” United States v. Mason,

(4th Cir. 1979)

(citations omitted); see also United States v. Davis,

(2019)

(“Employing the canon as the government wishes would also sit uneasily with the rule of

lenity’s teaching that ambiguities about the breadth of a criminal statute should be resolved

in the defendant’s favor.”).

Smith maintains that “both of the alleged false statements were made . . . in the same

interview and comprise only one violation of

.” Appellant’s Br. at 38.

The thrust of this argument is that § 1001(a)(2) criminalizes a course of conduct rather than

an individual false statement. Because we find that Congress’s intent concerning

§ 1001(a)(2)’s unit of prosecution is ambiguous, we must apply the rule of lenity and find

Count Two multiplicitous.

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A.

Section 1001(a)(2) prohibits “any materially false, fictitious, or fraudulent statement

or representation.” When previously confronted with similar statutory language, we have

found Congress’s intent ambiguous.

In Mason, we held that the language of

(a)(6) punishing “any false

or fictitious oral or written statement” was “ambiguous with respect to the unit of

prosecution.” United States v. Mason,

(4th Cir. 1979). Our decision in

Mason involved the Gun Control Act and the defendants’ charges included “knowingly

making a false statement in connection with the acquisition of a firearm in violation of

(a)(6).”

at 50–51. Both defendants submitted written forms when

purchasing firearms and falsely denied having been previously convicted of a felony on

each form. Because the defendants purchased multiple firearms, and submitted one form

per firearm, they were charged with multiple counts under § 922(a)(6) based on each form.

To determine whether these counts were multiplicitous, we looked to the Supreme Court’s

analysis in United States v. Bell. Id. at 51 (citing United States v. Bell,

(1955)).

In Bell, the Supreme Court held that the language employed in the Mann Act—

prohibiting the knowing transportation in “interstate or foreign commerce” of “any woman

or girl for the purpose of prostitution or debauchery, or for any other immoral purpose[,]”—

was ambiguous.

. The defendant in Bell transported two women

simultaneously and in the same vehicle. Because the statutory language could be

interpreted to support finding both that Congress intended the defendant to be charged once

for each woman, or cumulatively charged once for both women, the Supreme Court found

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the statutory language ambiguous and applied the rule of lenity. Relying on Bell, we found

that the statutory language in Mason, prohibiting “any false or fictitious oral or written

statement” was also ambiguous as to the unit of prosecution. Mason,

.

Despite the similar language at issue here, our dissenting colleague distinguishes

Mason by arguing that the Mason Court also relied on the way in which the Gun Control

Act was administered. See Dissenting Op. at 40. But Mason’s discussion of the Gun

Control Act’s administration merely provided additional support to its primary holding that

the statutory language was ambiguous under Bell. Indeed, this Court introduced that

discussion in Mason by stating, “[o]ur conclusion on this point is buttressed by the manner

in which the Gun Control Act has been administered by the Bureau of Alcohol, Tobacco

and Firearms.” Mason,

(emphases added). Given its prior discussion of

Bell, and the application of the rule of lenity to resolve doubt “against turning a single

transaction into multiple offenses[,]” as well as its conclusion that the statutory language

was ambiguous, the following discussion of the Act’s administration only bolstered the

Court’s holding that it had already made clear.

.

B.

Neither the legislative history, nor our case law following Mason, serve to clarify

§ 1001(a)(2)’s ambiguity. In 1996, Congress amended the statute to cover “any . . .

statement or representation,”

(a)(2) (1996)—in the singular—as opposed

to its former version covering “any . . . statements or representations,”

(1948). This revision fails to explain Congress’s intent regarding the unit of prosecution,

because the terms “statement” and “representation” do not carry the same definition. See

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Statement, Oxford English Dictionary (3d ed. 2012), https://www.oed.com/view/Entry/189259

(last visited November 28, 2022) (defining “statement” as “[a] formal written or oral account

of facts, theories, opinions, events . . . as requested by authority”); Representation, Oxford

English Dictionary (3d ed. 2009), https://www.oed.com/view/Entry/162997 (last visited

November 28, 2022) (defining “representation” as “[t]he action of standing for, or in the

place of, a person, group, or thing, and related senses” or “[a] depiction or portrayal of a

person or thing”).

Although a statement may be a representation, a representation is not necessarily a

statement. Thus, there is no need to interpret the statute’s terms as one referring to a single

assertion, and the other to a series of assertions, in order to avoid rendering the statute’s

language superfluous. And while Congress’s revision, amending § 1001(a)(2) to cover

“any . . . statement or representation” in the singular, supports a finding that the statute is

broad enough to encompass a single interview that only included one false statement, it

does little to show that Congress unambiguously intended the unit of prosecution to be each

individual statement made during one interview. Instead, the statute remains ambiguous

because one could easily interpret § 1001(a)(2)’s unit of prosecution as one single

interview or form. Under this view, the statute could be interpreted as characterizing

Smith’s entire interview as a “statement or representation,” sufficient to support one count

of making a false statement in violation of § 1001(a)(2).

In its attempt to declare § 1001(a)(2) unambiguous, the dissent relies upon an

unpublished case decided after Mason. See Dissenting Op. at 38–39. In Jameson, we

upheld the defendant’s four convictions under § 1001(a)(2) and determined that “each

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nonidentical false statement made may be charged as a separate violation of section 1001.”

See United States v. Jameson, Nos. 91-5848, 91-5849, 91-5876,

, at *9

(4th Cir. July 29, 1992) (per curiam). The defendant’s false statements there stemmed from

two separate forms, one form submitted on September 15, 1987, and the second form

submitted on September 7, 1988. On both forms, the defendant falsely denied (1) having

any additional “creditors other than those providing conventional loans,” and (2)

possessing “interests in real property other than his personal residence.”

Declining to find his charges as multiplicitous, we reasoned that the questions on

the two forms were not identical because they concerned the defendant’s debt and property

as of two different dates. We also found that the defendant could be charged with two

counts per form because the government had to prove different facts for each count. 5 While

Smith’s challenge is more difficult to square with our unpublished decision in Jameson,

the differing facts that the government had to prove to sustain each charge there render

Jameson distinguishable from this case.

Unlike the differing types of documents that would be required to prove an

individual’s debt and specific property interests, the government proved Counts One and

5 For support, we discussed the Supreme Court’s decision in United States v. Blockburger, holding that “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

(1932). The defendant in Blockburger, however, was charged under two “distinct statutory provisions” and “[e]ach of the offenses created requires proof of a different element.”

. Because the defendant’s one sale violated two sections of the same act, the Court upheld the defendant’s judgment.

. See United States v. Mier-Garces,

, 1012–13 (10th Cir. 2020) (explaining that the Blockburger test applies “[w]hen the government charges a defendant under separate statutes for the same conduct”). 12 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 13 of 40

Two by solely relying on the communications between its informants and Smith. The

government had to prove that Smith “discussed his desire and plans to travel to Syria in

support of ISIS with The Source[,]” J.A. 20, under Count One, and that Smith “had

discussed with The Source the travel plans of a person that he [SMITH] believed to be a

person who wanted to travel and assist ISIS[,]” J.A. 21, under Count Two. Thus, the FBI’s

evidence for both counts depended on its informants’ conversations with Smith. It is also

worth noting that while some of our sister circuits have defined § 1001(a)(2)’s unit of

prosecution as a single statement, none of them have done so in a case where the

government’s evidence was so similar in substance. See United States v. Meuli,

, 1485–86 (10th Cir. 1993) (involving a defendant who made false statements on

multiple forms); United States v. Segall,

, 146–48 (9th Cir. 1987) (affirming

the defendant’s conviction on three counts of making a false statements on two separate

dates); United States v. Guzman,

, 432–33 (5th Cir. 1986) (affirming the

defendant’s conviction on two counts under § 1001 for falsely representing her name on

two separate documents).

In sum, we find ambiguity in Congress’s intended unit of prosecution in

§ 1001(a)(2) following Mason. Because nothing in our case law nor the relevant legislative

history serves to clarify this ambiguity, we apply the rule of lenity and reverse the district

court’s denial of Smith’s motion to dismiss Count Two. See Santos, 553 U.S. at 519 (“We

interpret ambiguous criminal statutes in favor of defendants, not prosecutors.”); see also

Bell,

(“When Congress leaves to the Judiciary the task of imputing to

Congress an undeclared will, the ambiguity should be resolved in favor of lenity.”).

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III.

We turn next to Smith’s challenge to the sufficiency of the evidence. Smith claims

that the district court erred in denying his motion for a judgment of acquittal on both false-

statement counts. We disagree.

Rule 29 requires a trial court, on the defendant’s motion, to “enter a judgment of

acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed.

R. Crim. P. 29(a). We review the district court’s denial of a Rule 29 motion de novo.

United States v. Burfoot,

(4th Cir. 2018). In doing so, “we view the

evidence in the light most favorable to the prosecution and decide whether substantial

evidence . . . supports the verdict.” United States v. Walker,

(4th Cir.

2022) (cleaned up). “Substantial evidence” is evidence that a reasonable fact-finder could

accept as adequate and sufficient to support a defendant’s guilt beyond a reasonable doubt.

See

Defendants bear a “heavy burden” under this standard.

(cleaned up).

“A § 1001 false-statement conviction requires (1) a false statement in a matter

involving a government agency, (2) made knowingly [and] willfully, that is (3) material to

the matter within the agency’s jurisdiction.” United States v. Legins,

(4th Cir. 2022). Smith’s challenge to his Count One conviction spans each element. On

Count Two, he contests only falsity and materiality. We address each count in turn.

A.

On Count One, Smith contends that the government failed to prove he knowingly

made a materially false statement. Count One charged him with “falsely stating to FBI

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Special Agents . . . that he had never discussed his desire or plans to travel to Syria.” J.A.

20.

Smith first claims we must vacate this conviction because his responses to the FBI’s

imprecise questions were truthful. He next argues that the government failed to prove that

he acted with the requisite intent because no expert testified to the meaning of Smith’s

Arabic statements. And last, Smith contends that, even if he knowingly and willfully made

false statements, those statements were immaterial to the FBI’s near-completed

investigation. We disagree, finding sufficient evidence supports the jury’s verdict on

Count One.

1.

Smith’s challenge to falsity revolves around Godfrey’s questions, which are

reproduced in the indictment:

1. “[H]ave you ever talked with anyone about . . . that you expressed to someone that you want to go to Syria and fight?”

2. “[H]ave you ever . . . talked with anyone that you wanted to go to Syria and join ISIS?”

J.A. 18. According to the indictment, Smith’s responses to these questions were false given

his discussions with Khalid about traveling to Syria.

Smith insists he truthfully answered both questions in the negative. The first

question, Smith says, is phrased so ambiguously that he interpreted it to ask whether he

had talked with anyone about having expressed to anyone else that he wanted to go to Syria.

And the second question is “similarly imprecise,” Smith claims, because it asks “whether

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[he had] engaged in a conversation with a person, [whom he] thought should go to Syria

and join ISIS.” Appellant’s Br. at 47.

Smith’s contentions turn on the literal-truth defense set forth in Bronston v. United

States,

(1973). In Bronston, the Supreme Court held that an individual isn’t

guilty of perjury when his allegedly false answer was “literally true but not responsive to

the question asked and arguably misleading by negative implication.”

.

Underlying this doctrine is the notion that “[t]he burden is on the questioner to pin

the witness down to the specific object of the questioner’s inquiry.”

. And if a

response is evasive, it’s the questioner’s duty “to spot that evasion and to flush out the

whole truth.” United States v. Earp,

(4th Cir. 1987) (cleaned up).

Though Bronston dealt with a perjury charge, we’ve since applied its holding to § 1001

offenses. See United States v. Good,

(4th Cir. 2003).

But as we’ve explained, the literal-truth defense is “a narrow one.” United States v.

Sarwari,

(4th Cir. 2012). “It applies only where a defendant’s allegedly

false statements were undisputedly literally true.”

(cleaned up). And fatally for Smith,

it doesn’t “apply in cases in which the focus is on the ambiguity of the question asked. Nor

does it apply to an answer that would be true on one construction of an arguably ambiguous

question but false on another.”

(cleaned up).

That Smith can construe either question as ambiguous therefore doesn’t help him.

There’s no doubt Godfrey could have chosen his words more carefully. Still, Godfrey

testified that he asked Smith “about whether or not [Smith] had expressed any plans or

desire, intentions[,] or aspirations to go to Syria,” which Smith denied. J.A. 799. A

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reasonable jury could conclude that (1) Godfrey intended to ask Smith about his discussion

of his personal desire to travel to Syria, and (2) Smith understood as much. See United

States v. Purpera,

, 632 (4th Cir. 2021) (finding an investigator’s

testimony sufficient for a reasonable jury to resolve against the defendant an “ambiguity

surrounding the precise nature of [the investigator’s] question”).

Thus, Smith’s response to the second question is enough to support falsity. When

Godfrey asked whether Smith had ever “talked with anyone that [he] wanted to go to Syria

and join ISIS,” Smith replied, “No, we’ve talked – I talk to numerous – you have to

understand the Muslim community. There’s so much stuff going on now in the Muslim

community with everything.” J.A. 798.

Smith answered Godfrey’s second question with “[n]o.” The rest of his response,

even if true, doesn’t retract his initial denial. A rational jury could thus find Smith falsely

denied discussing his desire to travel to Syria.

Even so, Smith suggests that his answer to Godfrey’s first question, under any

construction, was either nonresponsive or true. While we need not reach this contention,

we reject it all the same.

Smith says his response to the first question was literally true because he told

Godfrey he “never had any plans to go [to Syria] and do anything.” Appellant’s Br. at 46

(cleaned up) (emphasis added). Smith contends that, when he said he had no “plans” to go

to Syria, he meant he had no “detailed proposal” to go, rather than no “intention or

decision” to do so. Appellant’s Br. at 46 (quoting Oxford Dictionary of English (3d ed.

2010)). He argues that his intended definition of “plans” makes his response literally true.

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Smith relies on our precedent in United States v. Hairston,

(4th Cir.

1995). There, we reversed a perjury conviction where the context made it “obvious” that

a defendant used a different definition of “prepare” and “preparation” than that employed

by the prosecutor, rendering her statements literally true.

at 375–76. We face no such

quandary here.

First, Godfrey didn’t use the word “plans,” so there was no disconnect between the

question and answer as in Hairston. Second, it’s not obvious which definition Smith

intended. And third, even accepting Smith’s premise, the jury had substantial evidence to

reasonably conclude that Smith’s “plans” to go to Syria constituted a “detailed proposal.”

After all, Smith discussed with Khalid his desire to go to Syria and his idea to finance that

trip by working with Bilal. So a reasonable jury could find Smith lied when answering

Godfrey’s first question.

2.

Smith next argues that the government failed to prove he knowingly and willfully

made false statements. In conversations with Khalid discussing travel to Syria and joining

ISIS, Smith often responded in Arabic, saying “inshallah” or “na’am.” Khalid, fluent in

Arabic, told the jury that he understood those words as affirmations to his questions.

Smith now contends that because the government didn’t present expert testimony

on Arabic, the jury didn’t have “sufficient evidence to interpret” his responses. Appellant’s

Br. at 50. So, says Smith, the jury couldn’t conclude what he “actually meant when he said

[those] words.”

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The problem for Smith is that the jury heard sufficient evidence of his conversations

with Khalid in English to conclude that Smith knowingly and willfully lied to the FBI. For

example, when they first met, Smith told Khalid, “There is a particular family in Syria . . .

that I went there one time before to visit. . . . I want to go back to them.” S.J.A. 1–2. And

in their third meeting, Khalid asked Smith, “[W]hat’s your plans [sic] for Syria,” to which

Smith responded, “I need to get the money to get there . . . and that’s what we’re working

on so I can have the money to get there.” S.J.A. 37. To that end, the jury heard that Smith

worked with Bilal to earn money for his trip.

We thus find that the government presented enough direct and circumstantial

evidence for a reasonable jury to conclude that Smith acted with the requisite intent when

he denied ever discussing his desire or plans to travel to Syria. See United States v. Dennis,

(4th Cir. 2021) (In reviewing the denial of a Rule 29 motion, “[w]e must

consider both circumstantial as well as direct evidence.”).

3.

Smith also challenges the materiality of his untruthful responses. According to

Smith, denying his travel plans couldn’t have affected the FBI’s actions. Smith says his

interview was a “Hail Mary” at the end of the investigation and that the FBI already knew

the answers to its questions. Appellant’s Br. at 42. We reject this contention.

“A statement is material if it has a natural tendency to influence, or is capable of

influencing, the decision-making body to which it was addressed.” United States v.

Sarihifard,

(4th Cir. 1998) (cleaned up). The government “must prove

materiality by reference to the particular government agency or public officials that were

19 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 20 of 40

targeted”—here, the FBI. United States v. Raza,

(4th Cir. 2017). This

inquiry is ultimately “an objective test.” United States v. Hamilton,

(4th

Cir. 2012). It’s irrelevant “whether the false statement actually influenced the [FBI’s]

decision-making process.”

(emphasis added).

Smith’s denials of his travel plans to Syria were material to the FBI’s investigation.

As Godfrey told the jury, the FBI began investigating Smith because the agency was “very

concerned that he may be going [to Syria] to join ISIS.” J.A. 495. Smith’s denials that he

discussed the very plans which prompted the FBI’s inquiry, if believed, “were capable of

influencing the direction of the investigation.” United States v. Barringer,

(4th Cir. 2022) (cleaned up). These “misrepresentations, under normal circumstances,

could cause FBI agents to re-direct their investigation to another suspect, question their

informant differently or more fully, or perhaps close the investigation altogether.” United

States v. McBane,

(3d Cir. 2005). That’s enough to satisfy our review.

Smith’s claims to the contrary miss the mark. Even if the FBI’s interview was (as

Smith puts it) a “Hail Mary,” a reasonable jury could find that Smith’s false statements

were capable of influencing the FBI’s still-active investigation. See United States v.

Fondren,

(4th Cir. 2011) (rejecting that “statements could not be

material given that the [FBI’s] investigation was essentially complete”). And that “the FBI

investigators already knew the answers to the questions they asked him” makes no

difference to our inquiry.

(collecting cases).

20 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 21 of 40

B.

In challenging his Count Two conviction, Smith narrows his focus to the falsity and

materiality of his relevant statements. Count Two charged Smith with “falsely stating to

FBI Special Agents . . . that he did not know that [Hilal] intended to use the buddy pass

procured by [Smith] to travel and support ISIS.” J.A. 21.

Smith’s contentions here turn on one underlying fact—Hilal was a fictitious person

invented by the FBI. Smith says he truthfully denied knowing Hilal’s intentions because

those intentions never existed. And denying knowledge about Hilal’s intentions couldn’t

have influenced the FBI’s decision-making, Smith claims, because his untruthfulness alone

can’t establish materiality. We reject these arguments.

1.

As before, we begin with Smith’s falsity challenge. Smith reasserts a literal-truth

defense. This time, he argues that denying knowledge of Hilal’s intentions was truthful

because he “could have no knowledge of a person who does not exist, nor could he know

the intentions of a non-existent person.” Appellant’s Br. at 34. Smith’s contention thus

rises and falls with the meaning of “knowledge.”

We recently explored this terrain, finding the term “knowledge” “broad and

somewhat ambiguous.” Doe v. Fairfax Cnty. Sch. Bd.,

(4th Cir. 2021).

Though “knowledge” can mean “‘[a]n awareness . . . of a fact or circumstance’ or the

‘condition of having information’ about something,” it can also signify “‘a state of mind in

which a person has no substantial doubt about the existence of a fact.’”

(quoting

Knowledge, Black’s Law Dictionary (11th ed. 2019); Knowledge, Merriam-Webster

21 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 22 of 40

Dictionary, https://www.merriam-webster.com/dictionary/knowledge). The result is that

“knowledge” can mean either an awareness of an objective truth or a person’s subjective

understanding of a thing. See

Smith urges us to adopt the former meaning and ignore the latter. But the literal-

truth defense doesn’t permit us to disregard one construction of an ambiguous question in

favor of another. See Sarwari,

. Godfrey asked Smith whether he “knew”

that Hilal was planning to use the buddy pass to travel to Syria and join ISIS. S.J.A. 81 at

2:04:40–2:05:20. A reasonable jury could decide, upon hearing the full interview, that

Godfrey’s question went to Smith’s subjective understanding of Hilal’s intentions, rather

than an awareness of the objective truth of those plans. So Smith’s defense fails here, too.

Smith disputes this conclusion, pointing us to the Third Circuit’s decision in United

States v. Castro,

(3d Cir. 2013). In Castro, our sister court vacated a

defendant’s § 1001 conviction for lying to FBI agents about receiving extorted funds. See

id. at 139–41. The defendant had unwittingly hired FBI agents posing as “debt collectors”

to coerce a former business partner into repaying an investment in a failed venture. Id. at

130. Though the defendant accepted purportedly extorted money from the collectors, he

later denied ever receiving any payment from his old partner. Id. at 132.

The court found this denial was “completely, if unintentionally, accurate.” Id. at

139. It was undisputedly true that the defendant never received any money from his

partner—it came from the FBI. See id. at 140. Whether he “subjectively believed he was

lying” made no difference, the court said, because “our legal system does not convict

people of being bad.” Id.

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We find Castro inapt to Smith’s case. The issue of falsity in Castro turned on the

source of a payment. Here, the falsity of Smith’s statements turns on his state of mind—

more specifically, his understanding of Hilal’s travel plans. On that point, the government

offered ample evidence.

Khalid asked Smith to buy the buddy pass for Hilal because Hilal intended to fly

from Florida to New York and eventually make his way to “you know where,” meaning

Syria. J.A. 708. Khalid also described how he told Smith that Hilal was “very important

for us,” meaning ISIS. J.A. 708. The jury was free to disbelieve Khalid’s account having

heard all the recorded exchanges, but its determination is not for us to question. See United

States v. Wilson,

(4th Cir. 2007) (“If the evidence supports different,

reasonable interpretations, the jury decides which interpretation to believe.” (cleaned up)).

In short, substantial evidence supports the jury’s finding of falsity on Count Two.

2.

Smith next contends that the government failed to prove the materiality of his false

statements denying knowledge of Hilal’s travel plans.

The government again relied on Godfrey’s testimony to establish this element.

Godfrey explained that he asked the Hilal-related questions because the FBI needed to

establish “a baseline of truth” with Smith for additional questioning on the buddy pass.

J.A. 801. The FBI wanted to learn more about the involvement of Smith’s wife and the

person who had lent his credit card to buy Hilal’s plane ticket. The FBI didn’t know

whether that other person was someone “whose ideology was aligned with ISIS” or just an

“unwitting accomplice.” J.A. 802.

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But each question Godfrey asked risked revealing more of the FBI’s working

knowledge gained in the investigation. In turn, sharing that knowledge with Smith could

have compromised its investigation because Smith might have disclosed it to persons of

interest. Once Smith lied about knowing Hilal’s travel plans, Godfrey didn’t think it

worthwhile to compromise the FBI’s investigation in return for more untruthful answers.

Smith dismisses this theory and its supporting evidence, arguing that his credibility

alone could never be material to the FBI’s investigation, particularly where his untruthful

statements were based on the agency’s own made-up narrative. To permit a finding of

materiality on these facts, Smith says, “is to eliminate [that] requirement altogether and

transform nearly any false statement into a material one.” Appellant’s Br. at 24.

But it bears emphasizing that a false statement is material under § 1001 when it has

“a natural tendency to influence, or is capable of influencing, the decision-making body to

which it was addressed.” Hamilton,

(cleaned up). The Supreme Court has

explained that a jury, before applying this legal standard, must first make two factual

findings: the defendant’s relevant statement and the decision the government agency was

trying to make. See United States v. Gaudin,

(1995). Considering this

framework, we’re satisfied that a rational jury could find Smith’s false statements about

Hilal material to the FBI’s investigation.

Here, the FBI wasn’t only trying to discern whether Smith intended to provide

material support to a terrorist organization. The agency was also trying to understand what

role Smith’s wife and the credit-card owner had in the apparent scheme. So the FBI’s

decision-making at this stage encompassed its investigation into the conduct of Smith, his

24 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 25 of 40

wife, and the other person participating in Smith’s activities. See Fondren,

.

From there, we think it plain that Godfrey’s testimony adequately supports the jury’s

materiality finding. The FBI had to make a cost-benefit assessment during Smith’s

interview—how much of its investigation was it willing to compromise and what

information would it receive in return. Smith’s false statements on the buddy pass

influenced that assessment by informing the FBI what lines of questioning might be

fruitful. For instance, the FBI decided that Smith wasn’t a viable source to investigate the

person who purchased the buddy pass. But had the FBI believed Smith truthfully answered

its Hilal-related questions, a reasonable jury could accept Godfrey’s testimony as proof

that the FBI might well have questioned Smith differently, potentially changing the course

of the investigation.

Taking the evidence in the light most favorable to the government, as we must,

Smith’s false answers “were capable of influencing the direction of the investigation.”

Barringer,

(cleaned up); cf. Sarihifard,

(“[E]ven if a grand

jury disregards a witness’s false testimony, the false testimony may impede the grand jury’s

capacity to attain an accurate and prompt resolution of the matter under consideration.”).

In concluding as much, we reject Smith’s contention that his credibility alone could

never be material to the FBI’s investigation. The Supreme Court, in assessing § 1001, has

held that “the investigation of wrongdoing is a proper governmental function; and since it

is the very purpose of an investigation to uncover the truth, any falsehood relating to the

25 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 26 of 40

subject of the investigation perverts that function.” Brogan v. United States,

(1998) (emphasis omitted).

So too here. At its core, the FBI’s purpose was to discover the truth underlying

Smith’s potentially criminal enterprise. Smith’s false statements thus weren’t harmless lies

told in a vacuum; they related to other subjects of the FBI’s investigation. Under such

circumstances, we conclude that Smith’s answers—though revealing only his

untruthfulness—could alter the FBI’s decision-making. 6 See United States v. Lupton,

, 806–07 (7th Cir. 2010) (“When statements are aimed at misdirecting agents and

their investigation, even if they miss spectacularly or stand absolutely no chance of

succeeding, they satisfy the materiality requirement of

.”).

The Supreme Court’s decision in Kungys v. United States,

(1988),

doesn’t change our conclusion. There, the Court addressed materiality under

(a), which provides for the denaturalization of citizens whose citizenship was

“illegally procured or [was] procured by concealment of a material fact or by willful

misrepresentation.”

at 764 n.1 (cleaned up). The government had argued that the

defendant’s false statements in his visa and naturalization applications disqualified him

from citizenship. See

at 764–65. It said that § 1451(a)’s misrepresentation clause and

“illegally procured” clause both applied—the latter because the defendant’s false

statements rendered him ineligible for a good-moral-character finding (a requirement for

6 For these reasons, we likewise reject Smith’s assertion that his lies couldn’t influence the FBI’s investigation because the agency fabricated the facts underlying his false statements.

26 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 27 of 40

naturalization) under

(f)(6). See

The Third Circuit agreed only on the

former point, finding the defendant made material misrepresentations.

.

In reversing and remanding for reconsideration, the Supreme Court clarified that

courts should apply § 1001’s materiality standard—and no other formulation—to

§ 1451(a)’s misrepresentation clause. See id. at 769–72. The Court then declined to reach

the government’s alternate basis for affirming under § 1451(a)’s “illegally procured”

clause for violation of § 1101(f)(6), which bars a finding of good moral character if a

person gives “false testimony” to obtain immigration benefits. Id. at 779. It addressed

only the Third Circuit’s conclusion that false testimony under § 1101(f)(6) had to be

material. See id. Unlike § 1451(a)’s misrepresentation clause, the Court said, § 1101(f)(6)

has no such materiality requirement. Id. The Court explained the divergence between the

statutes not just by their plain language but also by their purposes: § 1451(a)’s to prevent

“false pertinent data from being introduced into the naturalization process,” and

§ 1101(f)(6)’s to “identify a lack of good moral character.” Id. at 780.

Smith suggests that the Kungys court’s disparate treatment of false statements under

those statutes highlights the insufficiency of untruthfulness alone as proof of materiality.

He argues that our interpretation of materiality reduces § 1001(a)(2) to a

good-moral-character provision like § 1101(f)(6).

Smith is wrong. For one, the Kungys majority didn’t answer whether the

defendant’s untruthfulness was material to his procurement of citizenship, as § 1451(a)

requires. See id. at 767–72. But even if a defendant’s untruthfulness alone couldn’t

possibly influence the government’s naturalization decision, an ongoing criminal

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investigation presents a far different inquiry. As we’ve outlined, our focus is on the

particular agency to which a defendant lied—see Raza, 876 F.3d at 617—and any

falsehood going to the heart of an FBI investigation can influence it. See Brogan,

.

A final point. Smith complains that the FBI’s pertinent decision must be more than

just “the decision to ask more questions.” Appellant’s Br. at 25–26. He warns that, if we

sanction this theory, FBI agents will always be able to advance after-the-fact justifications

in service of materiality. Not so. Our precedent has long held that the government must

offer sufficient evidence to prove materiality (as it did here). See United States v. Ismail,

(4th Cir. 1996). That’s an adequate safeguard against theories premised on

an agency’s afterthoughts. 7

In sum, we conclude that Smith’s false statements denying his knowledge of Hilal’s

travel plans could have influenced the FBI’s investigation. So they were material.

IV.

Smith also contends that one of the district court’s instructions and an unrelated

comment during trial allowed the jury to convict him without determining whether his

Because a defendant may invoke his right to remain silent in an FBI interview, 7

Smith also argues it is “entirely speculative” for a jury to conclude how the investigation would have proceeded had he been truthful. Appellant’s Br. at 25. Of course, if Smith had remained silent or told the truth, there would be no materiality inquiry as there would be no crime. In any event, Smith ignores that our focus is on his false statements’ potential to alter the FBI’s investigation. See Barringer,

(“Whether the false statement actually influenced an agency’s action is irrelevant.”).

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statements were false. Because Smith didn’t object to the instruction or the comment, we

review for plain error. See United States v. Hope,

(4th Cir. 2022). These

claims, however, are meritless.

Smith first challenges the court’s jury instruction that “the government is lawfully

permitted to use decoys and deception to conceal the identity of its informants.” J.A. 982.

While Smith characterizes this instruction as misleading, he doesn’t dispute that it’s a

correct statement of the law. So the court appropriately instructed the jury as much. See

United States v. Hurwitz,

(4th Cir. 2006) (“We review a jury instruction

to determine whether, taken as a whole, the instruction fairly states the controlling law.”

(cleaned up)).

Second, the court stated in response to an objection, that “we have two counts of a

violation of 1001, which indicate that there were . . . two falsehoods here.” J.A. 835. Smith

argues this statement misled the jury to believe the government had established those two

falsehoods. But context proves otherwise. Shortly after, the court said, “The question is,

were these two lies told or not?” J.A 835. And the court fully instructed the jury on the

elements of a § 1001(a)(2) offense, including falsity. We find no error here, much less a

plain one.

V.

We now address the district court’s refusal to give the jury an entrapment

instruction. We review a district court’s decision to give (or not give) a jury instruction for

abuse of discretion. See United States v. Hassler,

(4th Cir. 2021).

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“[A] valid entrapment defense has two related elements: government inducement of

the crime, and a lack of predisposition on the part of the defendant to engage in the criminal

conduct.” Mathews v. United States,

(1988). To establish inducement, “a

defendant must show that the government acted in an excessive manner that would prompt

a reasonably firm person to commit a crime.” Sarihifard,

. Only when a

defendant makes this prima facie showing does the burden shift to the government to prove

the defendant’s predisposition to the criminal conduct. United States v. Young,

, 375–76 (4th Cir. 2019).

But “[t]he district court is the gatekeeper.” United States v. Hackley,

(4th Cir. 2011). If a defendant can’t produce “more than a mere scintilla of evidence

of entrapment, the court need not give the instruction.”

(cleaned up).

In requesting an entrapment instruction, Smith argued that the government had

induced him to lie to FBI agents by serving his wife with a subpoena. At trial, Godfrey

testified about these pressure tactics on Smith’s wife. Godfrey had called her “the weakest

link,” and he told the jury about the FBI’s plan to use her to get to Smith. J.A. 590. To

execute this plan, Godfrey approached Smith’s wife for an interview at her job, and he had

the grand jury subpoena delivered to her mother’s house.

The district court declined Smith’s request for an instruction, concluding he hadn’t

shown “an inducement to commit perjury.” J.A. 923. The court explained that there was

no evidence that the FBI subpoenaed Smith’s wife to “get him to come down” and lie to

agents. J.A. 923. That decision, the court reasoned, was Smith’s alone.

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We see no abuse of discretion. Smith offered no evidence to suggest the FBI

induced him into lying, even if the agency aimed to get him in the hot seat. See United

States v. Russell,

(1973) (“It is only when the Government’s deception

actually implants the criminal design in the mind of the defendant that the defense of

entrapment comes into play.”).

Godfrey warned Smith at the outset of the interview that the only way he could

“create any possible problems” was by “being deceptive or untruthful.” S.J.A. 81 at

1:24:00–1:24:15. Godfrey even gave Smith a copy of § 1001’s text during the interview—

before the Hilal questions—informing him that lying to the FBI was a criminal offense.

The FBI’s repeated efforts to ensure Smith told the truth belie any claim that agents

coaxed him into lying. See United States v. Kennedy,

(4th Cir. 2004).

And the mere fact that agents knew Smith might lie about Hilal’s travel plans after falsely

denying his own doesn’t amount to inducement. See Sarihifard, 155 F.3d at 308–09.

VI.

Finally, Smith maintains that his sentence is procedurally unreasonable because the

district court erroneously imposed the terrorism enhancement under U.S.S.G. § 3A1.4.

“Application of the terrorism enhancement provides a twelve level enhancement—and an

automatic criminal history category of VI—when ‘the offense is a felony that involved, or

was intended to promote, a federal crime of terrorism.’” United States v. Chandia,

(4th Cir. 2008) (quoting U.S.S.G. § 3A1.4). In turn, a “federal crime of

terrorism” has two elements: (1) “the commission of one of a list of specified felonies”;

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and (2) “a specific intent requirement, namely, that the underlying felony was calculated

to influence or affect the conduct of government by intimidation or coercion, or to retaliate

against government conduct.” Id. (cleaned up).

Smith claims the district court erred in applying the terrorism enhancement because

it failed to expressly find specific intent. Indeed, our precedent compels a district court to

identify the evidence underpinning its specific-intent finding when “the basic facts

supporting the conviction do not give rise to an automatic inference of the required intent.”

Id. at 376.

But we need not delve into this question given that we’re remanding for

resentencing because of the district court’s error on multiplicity. On remand, the district

court can address the merits of Smith’s claim regarding the terrorism enhancement.

VII.

In sum, we reverse the district’s denial of Smith’s motion to dismiss Count Two of

the indictment as multiplicitous, vacate the judgment, and remand for resentencing. We

otherwise affirm.

AFFIRMED IN PART, REVERSED IN PART, VACATED AND REMANDED FOR RESENTENCING

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TOBY HEYTENS, Circuit Judge, concurring:

As the Court explains, the theory of entrapment Smith presented here is insufficient

to state a prima facie case of inducement and thus provides no basis for overturning Smith’s

convictions. I write separately to note that Smith may have been able to establish a valid

entrapment defense under a different theory—and to caution that similar government

conduct may not be countenanced in future cases.

I.

It is well established that the government may “use undercover agents to enforce the

law” and “afford opportunities or facilities for the commission of [an] offense.” Jacobson

v. United States,

(1992). In doing so, however, the government “may

not originate a criminal design, implant in an innocent person’s mind the disposition to

commit a criminal act, and then induce commission of the crime so that the Government

may prosecute.”

These principles apply equally to prosecutions under

. In Brogan

v. United States,

(1998), the Supreme Court rejected the “exculpatory no”

defense, under which some courts had carved out an exception to criminal liability under

Section 1001 “for a false statement that consists of the mere denial of wrongdoing.”

. “Whether or not the predicament of the wrongdoer run to ground tugs at the

heartstrings,” the Court explained, “neither the text nor the spirit of the Fifth Amendment

confers a privilege to lie.”

. At the same time, however, the Court emphasized

that “background interpretive principle[s] of general application”—including that criminal

33 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 34 of 40

statutes do not “cover violations produced by entrapment”—remain applicable in Section

1001 prosecutions.

.

In a separate opinion, Justice Ginsburg underscored the importance of these

principles. As she noted, Section 1001 “arms Government agents with authority not simply

to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government

officer could prompt.” Brogan,

(Ginsburg, J., concurring in the judgment).

In particular, “the sweeping generality of § 1001’s language” creates the risk “that an

overzealous . . . investigator—aware that a person has committed some suspicious acts, but

unable to make a criminal case—will create a crime by surprising the suspect, asking about

those acts, and receiving a false denial.” Id. at 416.

II.

The facts of this case appear to implicate Justice Ginsburg’s concerns. Smith

initially drew the FBI’s attention because he had expressed interest in traveling to Syria.

Yet simply going to Syria—even with the intent to participate in jihad against Bashar al-

Assad’s regime—is not a federal crime, and Smith’s early conversations with the

government’s primary informant referenced entities not designated as foreign terrorist

organizations. Cf. 18 U.S.C. § 2339B (making it a crime to “knowingly provide[ ] material

support . . . to a foreign terrorist organization, or attempt[ ] . . . to do so”). ISIS, of course,

is a designated foreign terrorist organization. See

(May 15, 2014);

(a)(2)(A)(ii), (B)(i). But it was a government-compensated informant, not

Smith, who first mentioned ISIS—to the point of making Smith swear allegiance to ISIS

as a condition of assisting with Smith’s otherwise lawful aim of traveling to Syria. And, in

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any event, the government never charged Smith with actually providing (or attempting to

provide) material support to ISIS.

The government, however, had another route to secure a conviction. Beyond

requiring Smith to swear allegiance to ISIS, the government’s primary informant did

something else: He told Smith not to tell anyone about their conversations about ISIS.

See, e.g., SJA 16 (“ABU KHALID: . . . keep yourself down . . . don’t talk to nobody about

this.”). And then, during a later interview, FBI agents asked Smith about the very

conversations and topics the informant had directed Smith not to disclose. Consistent with

the informant’s advice, Smith falsely denied having spoken with any of the government’s

informants about traveling to Syria to join ISIS. And, with that, the government finally had

a crime: making false statements, in violation of

.

In this case, therefore, the government was not merely “aware that [Smith] ha[d]

committed some suspicious acts.” Brogan,

(Ginsburg, J., concurring in the

judgment). Instead, it might have been argued that by having one government agent (an

undisclosed confidential informant) raise the topic of ISIS and urge Smith not to disclose

those conversations to anyone, and then having another set of government agents (the FBI)

ask Smith about those very same conversations, the government “originate[d] a criminal

design” and “implant[ed] in an innocent person’s mind the disposition to commit a criminal

act.” Jacobson,

.

This combination of circumstances might have distinguished Smith’s case from

others where we have not found an entrapment instruction necessary. In United States v.

Sarihifard,

(4th Cir. 1998), for example, this Court concluded an entrapment

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defense would have failed where “there [was] no evidence suggesting that the

government’s purpose in questioning the defendant was the solicitation of perjured

testimony.”

(emphasis added). Here, in contrast, a jury might have been able to

find that when FBI agents asked Smith about matters the government’s own informant had

instructed Smith not to disclose to anyone, their purpose was to get Smith to lie and then

convict him for having done so. ∗

Smith, however, has not claimed that the government’s undisclosed confidential

informant—rather than the fully disclosed FBI agents—induced him to commit the crime

of lying to the FBI. For that reason, we need not decide whether the informant’s actions

could have given rise to a valid entrapment defense, and I concur in the Court’s decision

rejecting the argument presented here.

∗ A valid entrapment defense also requires “a lack of predisposition on the part of the defendant to engage in the criminal conduct.” United States v. Blevins,

(4th Cir. 1992). Here too, the record suggests Smith might have had a colorable claim. Consider, for example, Smith’s willingness to voluntarily talk to the FBI, truthfully offer up names and descriptors of the informants, and describe his and his wife’s roles in buying the airline’s discounted buddy pass. 36 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 37 of 40

DIAZ, Circuit Judge, dissenting in part:

I join all but Part II of the Court’s opinion. In my view, the district court correctly

denied Smith’s motion to dismiss Count Two as multiplicitous.

“When a defendant is charged with multiple violations of the same statute arising

from the same course of conduct, the court must consider ‘[w]hat Congress has made the

allowable unit of prosecution.’” United States v. Shrader,

(4th Cir.

2012) (quoting Bell v. United States,

(1955)). This inquiry asks us to “look

to the language of the statute, being mindful that any ambiguity must be resolved in favor

of the defendant under the rule of lenity.”

(cleaned up). Whether two counts are

multiplicitous is a question of law we review de novo.

Section 1001 punishes, in part, “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

or representation.”

(a)(2). At bottom, § 1001(a)(2) defines the crime (and

so the unit of prosecution) in terms of a single statement or representation. See United

States v. Dunford,

(4th Cir. 1998) (explaining that, under a literal

construction, “any” in the context of a singular noun means a “single” item).

Section 1001’s legislative history supports this construction. Originally, § 1001

prohibited false “statements or representations.”

(1948). But Congress

revised the statute to take on a singular form, now prohibiting any false “statement or

representation.”

(a)(2) (1996). Thus, each nonidentical statement or

representation (not each interview) is the unit of prosecution.

37 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 38 of 40

True, the terms “statement” and “representation” can accommodate either a single

assertion or a series of the same. See Statement, Oxford English Dictionary (3d ed. 2012),

https://www.oed.com/view/Entry/189259 (last visited November 28, 2022) (defining

“statement” as both “[a] formal written or oral account of facts” and “[a]n expression of

something . . . a declaration, an assertion”); Representation, Oxford English Dictionary (3d

ed. 2009), https://www.oed.com/view/Entry/162997 (last visited November 28, 2022)

(defining “representation” as “a spoken or written statement”). But “we disfavor

interpretations of statutes that render language superfluous.” Alexander v. Carrington

Mortg. Servs., LLC,

(4th Cir. 2022) (cleaned up). So these usually

synonymous terms shouldn’t carry the same meaning in § 1001—one should mean a single

assertion, and the other, a series. I’m satisfied that Congress permitted the prosecution of

either a single lie or a series of lies. 1

The Supreme Court’s test in Blockburger v. United States confirms our conclusion

that each nonidentical false statement or representation may be prosecuted, asking

“whether each [offense] requires proof of a fact which the other does not.”

(1932); see, e.g., Shrader,

. Indeed, we have used this test once before

in the § 1001 context, though in an unpublished decision. See United States v. Jameson,

Nos. 91-5848, 91-5849, 91-5876,

, at *9 (4th Cir. July 29, 1992) (per

curiam).

1 Because both counts charged Smith with making a false statement and representation, I need not assign each term its corresponding definition.

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In Jameson, we held that “each nonidentical false statement made may be charged

as a separate violation.”

(cleaned up). 2 Applying Blockburger, we reasoned that the

government had to establish the falsity of two separate responses on a single form through

different facts. See

at *9–*10. So each nonidentical false response supported a separate

§ 1001 offense. Id. I find Jameson’s reasoning persuasive.

Here, the falsity of Smith’s statements in Counts One and Two turned on proof of

different facts. Count One required the government prove Smith lied about his own “desire

or plans to travel to Syria.” J.A. 20. For Count Two, the government had to prove that

Smith lied about his knowledge of Hilal’s travel plans. So each count required proof of

Smith’s understanding of different travel plans, confirming that his convictions aren’t

multiplicitous.

Our decision in United States v. Mason,

(4th Cir. 1979), is not to the

contrary. There, we concluded that

(a)(6)’s prohibition on making “any

false or fictitious oral or written statement” in connection with a firearm or ammunition

sale presented an ambiguous unit of prosecution.

(cleaned up). We thus resolved

§ 922(a)(6)’s unit of prosecution in the defendants’ case as a course of conduct rather than

each false statement, dismissing their multiplicitous convictions. See id. at 52–53.

2 Each circuit to address this question has arrived at the same conclusion. See United States v. Meuli,

, 1485–86 (10th Cir. 1993); United States v. Segall,

, 146–48 (9th Cir. 1987); United States v. Guzman,

, 432–33 (5th Cir. 1986); United States v. Anderson-Bagshaw,

, 411–13 (6th Cir. 2012); United States v. Bustamante,

, 764–65 (8th Cir. 2007) (per curiam).

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Acknowledging the similarity between the language in § 922(a)(6) and § 1001(a)(2), I

nonetheless reach a different result here.

Mason dealt with two defendants’ false denials of their felon status on multiple

forms they submitted to a gun dealer when making multi-firearm purchases—one form for

each gun. See id. at 50–51. Beyond § 922(a)(6)’s language, Mason relied on “the manner

in which the Gun Control Act [had] been administered by the Bureau of Alcohol, Tobacco

and Firearms.” Id. at 52.

We found that the Bureau hadn’t required multiple certification forms in a multi-

firearm purchase—that discretion was left to the individual gun dealer. See id. at 52–53.

Because “a particular gun dealer’s practice shouldn’t control the application of a federal

criminal statute,” we held each course of lying, not each lie, was the allowable unit of

prosecution. Id. at 53. And “nothing in [§] 922(a)(6) or its legislative history” suggested

that Congress intended otherwise. Id.

Mason’s reasoning doesn’t control this case. For starters, the Gun Control Act’s

administration has no bearing here. There’s no comparable administration of § 1001(a)(2).

But more importantly, § 1001’s legislative history does suggest that Congress intended

each individual, nonidentical false statement to be the unit of prosecution.

Accordingly, the district court correctly denied Smith’s motion to dismiss Count

Two as multiplicitous. Because my colleagues hold otherwise, I respectfully dissent.

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