IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 of 18 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 Center (BAMC) demanding to see a patient in the hospital

accused in the Fort Hood shooting. He claimed he was the patient’s lawyer. 

Though he did not identify the patient by name, he was referring to Major Nidal

United States Court of Appeals

Fifth Circuit

F I L E D

April 20, 2012

Lyle W. Cayce

Clerk

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Hasan, an army psychologist who was being 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. The Defendant

became increasingly agitated; he began shouting and banging on the information

desk and made 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 BAMC lobby 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 was 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

that he responded to the duress alarm from the information desk. Captain

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

able to see him. The Defendant replied that he was the man’s lawyer, and he

asked if he could see him. Captain 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 Defendant said

 This false statement is the basis for the charge. 1

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that’s the person he wanted to see. According to Captain Bielling, the Defendant

identified himself as a Muslim, said he was the person’s Muslim brother, and

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 coordinate with them if he wanted to defend Major

Hasan.

The Defendant then identified himself as a doctor for Major Hasan and

stated he was there to treat him. Captain Bielling asked him what he was there

to treat him for and the Defendant responded 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 his wrists 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 walk-in

visitors from seeing Major Hasan. 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 advising 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 restricted patient and military

prisoner, the Defendant falsely stated to Department of Defense

security personnel at Brooke Army Medical Center (“BAMC”) that

he was the lawyer for the individual who shot 13 people at Ford

Hood . . . referring to N.M.H. [the Ford Hood Shooter], 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 acquittal,

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.

On appeal, the Defendant challenges the sufficiency of the evidence to

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 violation 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. 2010) (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 fact” (1) what

statement was made, and (2) what decision the agency was trying to make. Id.

(citing United States v. Gaudin, 515 U.S. 506, 509 (1995)). The third question

is whether, under the appropriate legal standard, 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 influencing 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 material – 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 statement 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 agency was trying to

make was whether the Defendant would be allowed access to Hasan. He argues

that his statement that he was Major Hasan’s lawyer was incapable of

influencing this decision because “regardless of what Abrahem said 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 Defendant had been R. Clark Adams,

already known to BAMC security as Hasan’s actual lawyer – he would not have

been admitted to see 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 decision being made by Captain

Bielling was not whether to allow the Defendant access to Hasan at that instant,

but whether the Defendant could see Hasan after being cleared, and 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. 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 men often 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 influenced the decision on this one occasion. 

United States v. McIntosh, 655 F.2d 80, 83 (5 Cir. 1981). The Defendant’s th

statement that he was Hasan’s lawyer tests those functions requiring a decision

by the agency 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’ citizenship under 8 U.S.C. § 1451(a) after it was discovered

that during the naturalization proceedings 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 Scalia stated that rather than

letting the “infinite variety of factual patterns that may emerge” around a

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statement drive the materiality question, the “safer” method is “to fix as our

guide the central object of the inquiry: whether the misrepresentation 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 statement 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 whether 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 is whether 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 naturally tend to influence a reasonable decisionmaking

agency in the abstract.

Id. at 350. The court answered the question by referring to 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 transcend the immediate

circumstances in which it is offered and inhere in the statement itself.” Id. It

indicated that it was joining the First and Ninth circuits in “apply[ing] an

objective materiality test,” focused on “‘the intrinsic capabilities of the statement

itself, rather than the possibility of the actual attainment of its end as measured

The Court concluded that the misrepresentations were not material because the 2

subject matter of the statements was not relevant to Kungys’ eligibility for citizenship.

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by collateral circumstances.’” Id., at 352 (quoting United States v. Service Deli,

Inc., 151 F.3d 938, 941 (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

convicted under § 1001(a)(2) for lying to a State Department agent who was

investigating her application for a United States passport. She told the agent

she had never heard from the State Department regarding a previous passport

application. This was false, because 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 that her omission of this

information in her new application was not material. She claimed that the State

Department already knew of the denial, and she would have been denied a

passport under the State Department protocol in place anyway. Accordingly, she

argued, her omission was incapable of influencing the State Department’s

decision whether she was eligible for a passport. The court accepted the

defendant’s factual premise but it rejected her argument that this made her

misrepresentations 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 requires only a showing that “the functioning of the

agency involved would have been impaired had the agency relied on the

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 enough 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 analysis, we are persuaded that a

statement to a decision maker in a military hospital that the speaker is the

lawyer 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.

C.

The Defendant also argues thatthe statement was incapable of influencing

this or any other agency decision because it “was obviously delusional,” based on

the Defendant’s agitated demeanor 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 delusional” 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 statement 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 statement in question that

“transcend the immediate circumstances in which it is offered and inhere in the

statement itself.” McBane, 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

of the relevant principles, distorts Kungys and its progeny and reaches what I

respectfully consider an irrational result on the question of materiality: A

psychotic man, acting in a psychotic manner, makes a statement that admittedly

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 bizarre

statement uttered by a mentally ill individual a lie that is material to some

unidentifiable government decision and consequently, a federal felony subject

to five years in prison. I respectfully dissent. 

The Supreme Court set forth the appropriate framework for testing 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 two subsidiary questions of purely

historical fact: (a) “what statement was made?” and (b) “what

decision was the agency trying to make?” The ultimate question: (c)

“whether the statement was material to the decision” requires

applying the legal standard of materiality . . . to these historical

facts. 

Id. at 512. A material 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). 

As the majority notes, the false statement with which Abrahem was

charged was his statement 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

decision the agency 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 Captain 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 upon 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, and 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 the time it concludes its analysis of the statement’s

materiality, the majority appears to have abandoned the two “sub-decisions,”

writing: “Based on the above authorities and analysis, we are persuaded that

a statement to a decision maker in a military hospital that the speaker is the

lawyer 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. 

The majority 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 majority concerning “the decision being made” by 1

Captain Bielling disregards the testimony the jury actually heard: that Bielling

specifically said that he could not make and did not make a decision, and even if he

had, he was not, and could not have been, influenced by the statement. 

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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 indictment; (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 precluded 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 decision” 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 only one 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 capable of influencing

that “ultimate” decision. But, here, the agency was never called upon to make

The indictment charged Abrahem with “falsely stat[ing] to Department of Defense 2

security personnel at Brooke Army Medical Center (“BAMC”) that he was the lawyer” for the

Fort Hood Shooter. 

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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 determined by “whether the statement tests these protocols,”

while announcing, in the same 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 decision by the agency to prevent the Defendant from

achieving his objective in a way that an immaterial statement does not.” Id.

(emphasis added). This appears to be a completely new test. 

But the majority instead of trying to find its way out of the tall grass,

wanders further 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 natural 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 ask, in 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 and 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

someone banging around in delusion, asking for someone whose name he does

not remember, has a different objective meaning to the official decision maker

than the same statement made by a man in a pinstripe suit with a briefcase,

conducting himself rationally, who 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 because “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 influence the decision maker than that sixyear-old boy. I fear, however, that the majority’s unwarranted extension 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 holding otherwise, the majority has

taken leave of a common sense application of the law. 

I, therefore, respectfully dissent. 

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