### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-50166

UNITED STATES OF AMERICA Plaintiff-Appellee
v. SENAN KAHTAN ABRAHEM Defendant-Appellant

Appeals from the United States District Court for the Western District of Texas

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges. W. EUGENE DAVIS, Circuit Judge: Defendant-Appellant Senan Kahtan Abrahem was convicted of knowingly making a material false statement to Department of Defense security personnel in violation o f 1 8 U

. S.C. § 1001(a)(2). He appeals on the ground that the evidence was insufficient to establish his false statement was material. For the following reasons, we AFFIRM Abrahem’s conviction. I

. On the morning of January 6, 2010, the Defendant entered the Brooke Army Medical Ce nt e r ( BAMC) demanding to see a patient in the hospital accused in the Fort Hood shooting. He claimed he was th e p atient’s lawyer. Though he did not identify the patient by name, he was referring to Major Nidal U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

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Hasan, an army psychologist wh o w a s b e i ng held as a protected patient at BAMC after shooting several people at Fort Hood several months before. The front desk volunteers understood that the Defendant was referring to Major Hasan. They informed the Defendant that they did not have the authority to permit him to see Major Hasan, and they notified security . Th e D efendant became increasingly agitated; he b e gan shoutin g an d b anging on the information desk and mad e various remarks referring to the man he was seeking to see as “my brother,” and suggesting that the volunteers “shoot me.” Staff Sergeant Justin White was in the BAM C l obby and heard the commotion. He walked up to the Defendant and moved him away from the information desk. Sergeant White testified that Defendant told him that he was there to see “the psychiatrist,” “the one who was shot by the infidels.” He testified that the Defendant w as yelling various statements, including “Allah Akbar,” and that the man he was trying to see was innocent. Captain Bielling, the supervisor of uniformed security at BAMC, testified th at he responded to the duress alarm from the information desk. C a p t ai n Bielling identified himself and asked to see the Defendant’s identification, which he provided. Captain Bielling testified that he asked the Defendant what he was doing there, and the Defendant replied that he was there to see the person involved with the shooting at Ford Hood. The Defendant was informed that he

was not allowed access to the shooter, and that only lawyers and physicians were
ab l e to see him. The Defendant replied that he was the man’s lawyer, a n d h e asked if he could see him. Capt ai n Bielling asked the Defendant what his 1 client’s name was. The Defendant replied he didn’t remember. The Defendant asked several bystanders the name of the person who was involved in the Ford Hood shooting. Somebody said it was Major Hasan, and the D e f e n d a nt said

Thisf als e s tat em ent is the bas is forthe char ge. 1 2 Case: 11-50166 Document: 00511829372 Page: 2 Date Filed: 04/20/2012No. 11-50166

that’s the person he wanted to see. According to Captain Bielling, the Defendant i dentified himself as a Muslim, said he was the person’s Muslim brother, an d that he had the right to defend him. In making these statements, the Defendant

was cooperative and no longer excited, loud or violent. Captain Bielling informed the Defendant that Major Hasan already had a legal team, and that the Defendant would have to coordi n at e with them if he wanted to defend Major Hasan. The Defendant then identified himself as a doctor for Majo r H a s a n and stated he was there to treat him. Captain Bielling asked him what he was there to treat him for and the Defendant r e s ponded it was confidential. Captain Bielling told the Defendant that Major Hasan already had a doctor and medical team and if he wanted to treat Major Hasan he would have to coordinate with that team. The Defendant stated that if he was not allowed to see Major Hasan that day he would come back every day for 15 minutes and cause a disturbance until he was let in. Captain Bielling informed him that he had caused a disturbance already, that he had to leave, and that he was interfering with patient care. The Defendant put hi s w rists in the air and asked if Captain Bielling was going to put handcuffs on him or arrest him. Captain Bielling said he was not, that he

was just going to take down the Defendant’s information and that the Defendant had to leave. The Defendant stated he wanted to sit and collect himself for ten minutes. Captain Bielling told him he could wait in his car and that he had to leave. The Defendant agreed to leave, stood up, and walked out. Captain Bielling and two other officers accompanied the Defendant out of the lobby. The officers took down the relevant material describing the Defendant’s car and gave it to the information desk. The Defendant got into his vehicle and departed. The Defendant admits he is not and never has been a lawyer.

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All of the witnesses testified that protocols existed that forbade w alk

- i n visitors from seeing Maj o r H a s an. None of the witnesses believed the Defendant’s claim that he was Major Hasan’s lawyer. Captain Bielling testified that even if he had believed the Defendant he still would not have allowed him to see Major Hasan, but would have referred the Defendant to Major Hasan’s defense team. After the Defendant left BAMC, Captain Bielling followed the set protocol of a dvi s ing CID, the Army’s Criminal Investigation Command, of the incident and filling out an incident report for them. II. Abrahem was charged with a violation of 18 U.S.C. § 1001(a), (a)(2). The indictment alleged the Defendant’s conduct as follows: [I]n order to gain access to a res tric t ed patient and military prisoner, the Defendant falsely stated t o D epartment of Defense security personnel at Brooke Army Medical Center (“BAMC”) that he was the lawyer for the individual who shot 1 3 people at Ford Hood

. . . referring to N.M.H. [the Ford Hood S h o o t e r] , who is a patient and military prisoner being held at BAMC, while the Defendant knew he was neither a lawyer nor representing N.M.H.
The Defendant was convicted after a two day jury trial. At the close of the Government’s evidence, the Defendant moved for a judgment of acqu ittal, arguing that the Government had failed to prove that the Defendant’s statement

was material. The court denied the motion and also denied the Defendant’s renewed motion at the close of the evidence. The Defendant was sentenced to a five-year term of probation and ordered to pay a $100 special assessment. The Defendant timely appealed his conviction. III. O n a p p eal, the Defendant challenges the sufficiency of the evidence t o prove that his statement was “material

. ” We review a denial of a motion for

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judgment of acquittal de novo. Fed. R. Crim. Pro. 29; United States v. Delgado , 256 F.3d 264, 273 (5 Cir. 2001). “The jury’s verdict will be affirmed if a th reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt. In assessing the sufficiency of the evidence, we do not evaluate the weight of the evidence or the credibility of the witnesses, but view the evidence in the light most favorable to the verdict, drawing all reasonable inferences to support the verdict.” Delgado , at 273-74 (internal citations omitted). IV. A. A vi olation of 18 U.S.C. § 1001 requires proof of five elements: “(1) a statement, that is (2) false, (3) and material, (4) made with the requisite specific intent, [and] (5) within the purview of government agency jurisdiction.” United States v. Najera Jimenez , 593 F.3d 391, 399 (5 Cir. 2 0 1 0) (internal citations th omitted). The Defendant challenges only whether the Government proved that the Defendant’s false statement was “material.” The parties agree that the first step in the analysis is to ask two “questions of purely historical f a ct” (1) what statement was made, and (2) what decision the agency was trying to make. Id

. (citing United States v. Gaudin , 5 15 U.S. 506, 509 (1995)). The third question is whether, under the appropriate leg al s t a n dard, the statement was material to the decision the agency is trying to make. To meet the standard of materiality under § 1001, “[t]he statement must have a natural tendency to influence or be capable of inf

l u encing the decision of the decisionmaking body to which it was addressed.” Id

. (internal citations omitted). Actual influence is not required

–
a statement can be ignored or never read and still be m aterial – and the statement need not be believed. Id

.

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The parties likewise agree that the false statement at issue is the Defendant’s stateme nt to Captain Bielling that he was Major Hasan’s lawyer. The Defendant argues that this statement fails to meet the materiality standard for two separate reasons, which we consider below. B. First, the Defendant argues that the decision the age n c y w a s trying to make was whether the Defendant would be allowed access to Hasan. He argues that his statement that he w as Major Hasan’s lawyer was incapable of influencing this decision because “regardless of what Abrahem s ai d or who he claimed to be he would not have been allowed access to Hasan under the Army protocol in place at the time of his statement.” The Defendant bases this argument on Captain Bielling’s testimony that under the protocol in place, no person was allowed access to Hasan unless they had prior clearance from CID. Captain Bielling also testified that even if he had believed the Defendant – or even if the D e f e n d a nt had been R. Clark Adams, already known to BAMC security as Hasan’s actual lawyer – he would not have been admitted t o s e e Hasan without clearance from CID. Bielling stated that “[i]t didn’t matter what [the Defendant] said,” the security team was not going to allow the Defendant access to Hasan. Accordingly, the Defendant argues, his false statement could not have been material to that decision. We agree that the ultimate decision the agency was called upon to make

was whether the Defendant could have access to Hasan. However, the jury reasonably could have concluded that the deci s ion being made by Captain Bielling was not whether to allow the Defendant access to Hasan at that instant, but wh e th e r th e Defendant could see Hasan after being cleared, and thus whether to adv ance him to the next step in the process by investigating his claims further and/or referring him to CID for clearance. See Najera Jimenez , 593 F.3d at 400.

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In addition, the Defendant’s argument assumes the agency always perfectly follows its protocol. Because the Defendant apparently did not come
across as believable, the agency had no trouble turning him away, and the officer in charge asserts he would have done the same even if the Defendant had been believable. This may be true but we disagree that this ends the inquiry. Confidence me n o f

t e n succeed in persuading the gate keeper to allow them to enter. Agency protocol is not always followed and those familiar with protocol

are not always on duty. The test is whether the statement tests these protocols,

or has the natural tendency to influence or be capable of influencing the decision maker, not whether it actually i nfluenced the decision on this one occasion. United States v. McIntosh , 655 F.2d 80, 83 (5 Cir. 1981). The Defen d a nt ’s th statement that he was Hasan’s lawyer tests those functions requiring a decision b y th e a gency to prevent the Defendant from achieving his objective in a way that an immaterial statement does not. In Kungys v. United States , 485 U.S. 759 (1988), the United States sought to revoke Kungys’ c itizenship under 8 U.S.C. § 1451(a) after it was discovered that during the naturalization pr o c e edings he had misrepresented certain material facts relating to his date and place of birth, wartime occupations, and wartime residence. The question narrowed to whether the misrepresentations were material under the relevant statutes. Justice Scalia, writing for the court, made the following points: (1) The same materiality standard applied in this case as applies for a violation of § 1001. (2) The question was whether the statements had “a natural tendency to influence, or [were] capable of influencing, the decision of the decisionmaking body to which [they were] addressed.” Id ., at 770 ( quoted in Gaudin , 515 U.S. at 510). In interpreting that phrase, Justice S c ali a stated that rather than letting the “infinite variety of factual patterns that may emerge” around a
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s t at e ment drive the materiality question, the “safer” method is “to fix as our guide the central object of the inquiry: whether the misrep r esentation or concealment was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision.” Id ., at 771. 2 In U.S. v. McBane , 433 F.3d 344 (3 Cir. 2005), the question was whether rd

a s t at e ment the defendant made to an FBI agent, which the agent knew to be false, was material to the agent’s investigation. The court gave its interpretation of the above language from Kungys: “In other words, the [ Kungys] Court judged the relevant inquiry to be wh e th e r the falsehood was of a type that one would normally predict would influence the given decision making body.” The court reasoned that: The dispositive question on this issue i s wh ether the test for ‘materiality’ necessarily requires that a false statement be capable of influencing an actual, particular decision of the agency at issue, or whether the test requires only that a statement be of a type that would n at u rally tend to influence a reasonable decisionmaking agency in the abstract.
Id. at 350. The court answered the question by referri n g t o Justice Scalia’s opinion in Kungys, which it read as making it clear that the “natural tendency” test is an objective one focused on whether the statement is “of a type capable of influencing a reasonable decision maker.” Id ., at 351 (emphasis in original). The court observed that, as it understood it, “the phrase ‘natural tendency’ connotes qualities of the statement in question that tr a n s c end the immediate circumstances in which it is offered and inhere in the statement itself.” Id

. It indicated that it was jo i ning the First and Ninth circuits in “apply[ing] an objective materiality test,” focused on “‘the intrinsic c ap abilities of the statement itself, rather than the possibility of the actual attainment of its end as measured

The Court conc lude d tha t the mis rep res entatio ns we re not mat erial beca use the 2 subjectm att er of the st atem entsw as not relevant to Ku ngys’ eligibility forc itize nshi p. 8 Case: 11-50166 Document: 00511829372 Page: 8 Date Filed: 04/20/2012No. 11-50166

by collateral circumstances.’” Id ., at 352 (quoting United States v. Service Deli, Inc. , 151 F.3d 938, 9 4 1 (9th Cir.1998)) (citing United States v. Edgar , 82 F.3d 499 (1st Cir.1996)). Finally, the Defendant’s argument in this case is similar to that rejected by this court in Najera Jimenez , 593 F.3d at 399-400. There, the defendant was
convi c t ed under § 1001(a)(2) for lying to a State Department agent who was investigating her application for a United S t at e s passport. She told the agent she had never heard from the State Department regarding a previous passport application. This was false, b e c ause after corresponding with her, the State Department had denied her previous application resulting in a fraud alert being placed on her profile. The defendant argued th at h e r omission of this information in her new application was not material. She claimed that the State Department already knew of the d e ni al, and she would have been denied a passport under the State Department protocol in place anyw ay . Accor din gly, she argued, h e r o mission was incapable of influencing the State Department’s decision whether she was eligible for a passport. The court accepted the d e f e ndant’s factual premise but it rejected her argument that this made her

m i s r e p resentations immaterial. It found that her omission could have led the State Department to make its decision based on incorrect information and this was sufficient to satisfy the materiality element. The court reasoned that this element requires only that the misrepresentation be capable of influencing the agency’s decision. It thus requir e s o nly a showing that “the functioning of the

a gency involved would have been impaired had the agency relied on th e defendant’s statement,” because the misrepresentation would have caused the agency to make its decision based on false or incorrect information, and that “[i]t is eno u gh that the potential for subversion of an agency’s function can readily be inferred.” Id . (internal quotations omitted).

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Based on the above authorities and a n aly s i s, we are persuaded that a
s t atement to a decision maker in a military hospital that the speaker is th e lawyer for a restri c t e d military prisoner is the type of statement capable of influencing the decision maker to allow the speaker to visit the patient and that the protocols in place did not affect the statement’s materiality. C. The D ef en dant al s o argu e s th at the st ate m ent was incapable of influencing this or any other agency decision because it “was obviously delusional,” based on the Defendant’s agitated de m e a n o r and the semi-coherent statements he was making. The Defendant argues that “[t]his was not just a situation in which the government agent knew the statement was false,” but one where the statement

– objectively viewed “in the context of all the [the Defendant’s] other statements and actions” – “was obviously d e lu s i o nal” and thus incapable of influencing a decision. We disagree. First, there is nothing irrational or delusional about the

reason the Defendant gave to gain admittance to see Hasan, that he was Hasan’s lawyer. The fact that his presentation was not persuasive or believable does not make the statement immaterial. At bottom, this argument is an assertion that under the facts of this case, the manner in which the false st at e m e nt was delivered – rather than the substance of the statement – renders it immaterial. We agree with the court in McBane that the focus should be on whether the statement is of a type that would naturally tend to influence or is capable of influencing the decision maker. The Supreme Court’s use of the phrase “natural tendency to influence,” Gaudin , 515 U.S. at 512, points to intrinsic qualities of the s t at e m e nt in question that “transcend the immediate circumstances in which it is offered and inhere in the statement itself.” McBan e , 433 F.3d at 351. We therefore conclude that

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Abrahem’s delivery of the statement in a manner not likely to persuade does not affect the materiality of the statement. V. For the foregoing reasons, we affirm the Defendant’s conviction. AFFIRMED

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E. GRADY JOLLY, Circuit Judge, dissenting: In order to affirm Senan Kahtan Abrahem’s conviction for knowingly making a materially false, fictitious, or fraudulent statement in violation of 18 U.S.C. § 1001(a), (a)(2), the majority, putting aside a common sense application

o f the relevant principles, distorts Kungys and its progeny and reaches wh at I respectfully consider an irrational result on the question of materiality: A psychotic man, acting in a psychotic manner, makes a statement that admitte dly

no one takes seriously or believes is true, and upon which no government official

or anyone else acts or has a tendency to act, and the majority calls the bi zarre statement uttered by a mentally ill individual a lie that is materi al to some unidentifiable government de c i s ion and consequently, a federal felony subject to five years in prison. I respectfully dissent. The Supreme Court set forth the appropriate framework for tes ting the materiality of false statements in United States v. Gaudin , 515 U.S. 506 (1995): Deciding whether a statement is “material” requires the determination of at least tw o s ubsidiary questions of purely historical fact: (a) “wh at s tatement was made?” and (b) “what decision was the agency trying to make?” The ultimate question: (c) “whether the statement was material t o the decision” requires applying the legal standard of materiality

. . . to these historical facts. Id. at 512. A m at e rial statement must have “‘a natural tendency to influence,

or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.’” Id. at 509 (quoting Kungys v. United States , 485 U.S. 759, 770 (1988)) (emphasis added and alteration in original). A s th e majority notes, the false statement with which Abrahem wa s charged was hi s s t atement to Captain Bielling that he was Major Hasan’s lawyer. Maj. Op. at 2. Under Gaudin and the test for materiality, the relevant agency decision also must be identified. Abrahem contends that the relevant decisio n th e a gency was called upon to make was whether Abrahem would be

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allowed access to Major Hasan; the testimony was undisputed that no one was allowed access to Major Hasan through a mere request of Cap t ai n Bielling; Abrahem’s false statement that he was a lawyer made only to Captain Bielling therefore had no possibility of influencing a decision permitting access to Major Hasan. Straining to rebut this argument, the majority determines “that the ultimate decision the agency was called u p o n to make was whether the Defendant could have access to Hasan.” Id. at 6 (emphasis added). “However,” it continues, “the jury reasonably could have concluded that the decision being made by Captain Bielling was not whether to allow the Defendant access to 1 Hasan at that instant, but whether the Defendant could see Hasan after being cleared , a n d thus whether to advance him to the next step in the process by investigating his claims further and/or referring him to CID for clearance.” Id. at 6-7. Although, by th e ti m e it concludes its analysis of the statement’s materiality , the majority appears to have abandoned the two “sub-decisions,”

writi n g : “Based on the above authorities and analysis, we are persuaded th at

a statement to a decision maker in a military hospital that the speaker is the l awy e r for a restricted military prisoner is the type of statement capable of influencing the decision maker to allow the speaker to visit the patient and that the protocols in place did not affect the statement’s materiality.” Id . at 10. Th e m aj o rity has, by my count, attempted to identify by “what if” reasoning three different decision makers and three different decisions. Among the “decisions” are: (1) the “ultimate decision” whether to allow Abrahem to have access to Major Hasan; (2) whether to allow Abrahem to see Major Hasan

This speculation of the maj ority co n ce rn i n g “the decision bei ng made” by 1 Captain Biell ing disregards the testimony the jury a ct u a ll y heard: that Biell ing specifical ly said that h e could not make and did not make a decision, and even if he had, he wa s not, and could not hav e been, influenced by the statement. 13 Case: 11-50166 Document: 00511829372 Page: 13 Date Filed: 04/20/2012No. 11-50166

after being cleared; and (3) whether to advance Abrahem to the next step in the process by referring him to CID. Then there are the speculative “decision makers”: (1) is it the Department of Defense–i.e., Captain Bielling–as indicated in the indi c t m e nt ; (2) is it the Army CID, who had final authority to admit or 2 deny visitors access to see Major Hasan; or (3 ) is it Major Hasan’s legal team, although that is problematic because there is no indication in the record that his legal team was part of a federal agency. By the end of its analysis, the majority appears to have settled on the decision being that of Captain Bielling, albeit in a “reasonable decision maker” role, whether to allow Abrahem access to Major Hasan. Captain Bielling, however, testified that he could not make a decision responsive to Abrahem’s request because the protocols in place preclu d ed him from making that decision. He stated under oath that Abrahem’s statement did not and could not have influenced him to make a decision that was responsive. Thus, one may kindly ask how Captain Bielling could be the “decision maker,” when he could make no decision. In its determination to uphold this conviction, the majority breaks down “the agency’s” decision into sub-parts, admitting that the “ultimate d e c i s i o n” was one that was never presented to the “agency” and thus implicitly acknowledging that the statement did not influence the ultimate decision maker. What was the decision here? Guidance from the Supreme Court and our
cases can be interpreted in o nly o n e way–that the agency’s decision was only what the majority christens as the “ultimate decision.” Abrahem’s false statement, if it is to be a federal crime, must have been capab l e of influencing that “ultimate” decision. But, here, the agency was never called upon to make

The indi ctm ent char ged Abrahe m with “f als ely st at[ing] to De partm ent of D e f e n se 2
se curity per so nnel at Brook e Arm y Me dic al Cente r (“ BAMC”) that he wa s the lawyer” for the FortH oodS hoot er. 14 Case: 11-50166 Document: 00511829372 Page: 14 Date Filed: 04/20/2012No. 11-50166

a decision. Accordingly, Abrahem’s statement can not be capable of influencing a decision never made. In order to uphold this conviction, the majority casts aside the record and the beyond-a-reasonable-doubt standard to make the bold assumptions that “[c]onfidence men often succeed in persuading the gate keeper to allow them to enter,” and that “[a]gency protocol is not always followed and those familiar with protocol are not always on duty.” Id. at 7. It then appears to derive a new test for materiality determ i n e d by “whether the statement tests these protocols,” while announcing, in the s ame sentence, that the statement must only have a “natural tendency to influence or be capable of influencing the decision maker, [and] not whether it actually influenced the decision on this one occasion.” Id

. It then states that Abrahem’s “statement that he was Hasan’s lawyer tests those functions requiring a decis i o n by the agency to prevent the Defendant from

a c hi evi n g his objective in a way that an immaterial statement does not.” I d

. (emphasis added). This appears to be a completely new test. Bu t the majority instead of trying to find its way out of the tall grass, wander s f

urth e r in. It transitions to a discussion of United States v. McBane , 433 F.3d 344 (3d Cir. 2005), and its stray interpretation of Kungys

. Although in Kungys Justice Scalia gave clear guidance, saying that the inquiry is “whether the misrepresentation or concealment was predictably capable of affecting, i.e., had a natu ral tendency to affect, the official decision” Kungys , 485 U.S. at 771 (emphasis added), the McBane court–and now the majority–has confused this to

mean that the relevant inquiry is “‘whether the falsehood was of a type that one would normally predict would influence the given decision making body ,’” Maj. Op. at 8 (quoting McBane , 433 F.3d at 351) (emphasis added). I can not read Kungys as supporting the proposition that the Supreme Court indicated that a false statement could be material if it was merely a type of statement that was capable of influencing a reasonable decision maker. Without regard to whether
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the false statement was capable of influencing the official decision of the agency, the materiality standard becomes a tool by which courts can eschew any semblance of context surrounding the false statement and simply a s k , i n the abstract, whether a statement was of a type capable of influencing a reasonable decision maker. The materiality standard adopted by the Supreme Court in Kungys–one that had been used for decades in the lower courts a n d quoted approvingly by the Supreme Court years later in Gaudin–should not be applied to exclude all context in every situation and at all times; often, a given statement

can only be explained or defined by context. The statement “I am a lawyer” from

some one banging around in delusion, asking for someone whose name he does not remember, has a different objective meaning to the official de cision maker than th e s a m e s t at ement made by a man in a pinstripe suit with a briefcase, conducting himself rationally, wh o asks to see his client by a specific name. Surely, the majority would not contend that the statement, “I am the lawyer for the Fort Hood shooter,” made by a six-year-old in cut-off jeans would be one that is material simply b e cause “I am a lawyer” is the type of statement capable of influencing the official decision whether to allow the speaker to visit the client. Similarly, a man whom everyone that morning knew to be acting in a delusional and psychotic state could no more influ e n c e the decision maker than that sixyear-old boy. I fear, however, that the majority’s unwarranted ext e n s i o n of Kungys will lead to other absurd results. The materiality standard sanctioned by the Supreme Court in Gaudin cannot support the proposition that Abrahem made a materially false statement. By h o l di n g otherwise, the majority has taken leave of a common sense application of the law. I, therefore, respectfully dissent.

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