2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-29-2012

USA v. Matthew Nestor

Precedential or Non-Precedential: Precedential

Docket No. 11-2559

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2497

_____________

UNITED STATES OF AMERICA

v.

WILLIAM MOYER,

 Appellant

(M.D. Pa. No. 3-09-cr-00397-003)

_____________

No. 11-2559

_____________

UNITED STATES OF AMERICA

v.

MATTHEW NESTOR,

 Appellant

(M.D. Pa. No. 3-09-cr-00397-001)
2

__________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

District Judge: Hon. A. Richard Caputo

__________

Submitted under Third Circuit LAR 34.1(a)

January 23, 2012

Before: FISHER, GREENAWAY, JR. and ALDISERT, 

Circuit Judges.

(Filed: February 29, 2012)

Enid W. Harris, Esq.

400 Third Avenue, Suite 111

Kingston, PA 18704

Counsel for Appellant William Moyer

James J. West, Esq.

James J. West LLC

105 North Front Street, Suite 205

Harrisburg, PA 17101

Counsel for Appellant Matthew Nestor

Thomas E. Perez

Jessica Dunsay Silver

Angela M. Miller

United States Department of Justice

Civil Rights Division, Appellate Section

Ben Franklin Station

P.O. Box 14403
3

Washington, D.C. 20044

__________

Counsel for Appellee

OPINION OF THE COURT

__________

ALDISERT, Circuit Judge.

Appellants Matthew Nestor and William Moyer appeal 

from final judgments entered by the United States District 

Court for the Middle District of Pennsylvania after a jury 

found Nestor guilty on Count Two of the indictment and 

Moyer guilty on Count Five. Count Two of the indictment 

charged Nestor with knowingly falsifying police reports with 

the intent to impede, obstruct, or influence the investigation 

into a matter within the jurisdiction of the Federal Bureau of 

Investigation (“FBI”), in violation of 18 U.S.C. § 1519. Count 

Five charged Moyer with knowingly making a false material 

statement in a matter within the FBI’s jurisdiction, in 

violation of 18 U.S.C. § 1001. 

Nestor now challenges both the indictment and his 

conviction. First, he contends that the District Court: (1) 

exceeded its discretion by denying, in relevant part, his 

motion for a bill of particulars; (2) erred by refusing to 

dismiss Count Two because it was duplicitous; and (3) 

exceeded its discretion by refusing to enforce the bill of

particulars it did order. Nestor also contends (4) that the 

government presented insufficient evidence to support his 

conviction; and (5) that 18 U.S.C. § 1519 is 

unconstitutionally vague. Moyer argues that the evidence was 
4

insufficient to support his conviction under § 1001. For the 

reasons that follow, we will affirm.

I.

A.

In the late evening of July 12, 2008, in Shenandoah, 

Pennsylvania, teenagers Brandon Piekarsky, Derrick 

Donchak, Brian Scully, Colin Walsh, Ben Lawson, and Josh 

Redmond encountered Luis Ramirez, a Hispanic man, in a 

local park. After some of the teenagers shouted racially 

derogatory comments at Ramirez and told him to “go back to 

Mexico,” a violent fight ensued. App. 00765. Walsh knocked 

Ramirez down and Piekarsky kicked their victim in the head 

while he was on the ground. The fight ended with Ramirez 

lying unconscious in the street.

Arielle Garcia witnessed part of the incident. She 

recognized the teenagers as students from Shenandoah High 

School and heard Scully shouting “racial” things to Ramirez 

about his ancestry. App. 00767. She saw Scully and Ramirez 

“interlock” and later saw “some[one]” kick Ramirez in the 

head “really hard” after he fell. App. 00675. After the 

teenagers fled the scene toward the park, Garcia phoned 911.

At the same time, Francis Ney saw approximately four 

“younger individuals” run in front of his moving car. App. 

00977. He heard a female shouting and saw Ramirez lying in 

the street. Ney called 911 and reported seeing the teenagers in 

the park. Ney tried to revive Ramirez but eventually ran to the 

park with a man referred to as “Mexican Jesse,” who 

confronted Piekarsky, Scully, Donchak, Walsh, Lawson and 

Redmond. According to some, “Mexican Jesse” brandished a 
5

gun.

1 Officer Robert Senape of the West Mahanoy Police 

Department arrived at the scene and requested an ambulance. 

Lieutenant William Moyer and Officer Jason Hayes of the 

Shenandoah Police Department—both defendants below—

arrived shortly thereafter. In the meantime, the police 

dispatch system reported a man chasing people in the park, so 

Lieutenant Moyer and Officer Hayes left to respond. 

Moments later, Ney again called 911 to report that the 

teenagers who had beaten Ramirez were near the baseball 

field and urged the dispatcher to send police to the area. Ney 

was speaking with the dispatcher when Lieutenant Moyer and 

Officer Hayes arrived. While still on the phone with the 911 

dispatcher, Ney told the officers that approximately five

teenagers were running through the field on the back side of 

the school. When one of the officers asked who the teenagers 

were, Ney responded that they were a bunch of 16- to 

17-year-old kids. Ney told the officers that he saw the 

teenagers who were beating Ramirez and that they fled when 

he stopped them to ask what they were doing. Ney told the 

police that Donchak remained in the park while the others ran 

away. Throughout this conversation—which was recorded on 

the 911 call—the dispatcher repeatedly asked if Ney was 

speaking with the police. After the dispatcher’s third inquiry, 

 1 One of the teenagers testified that he never saw a weapon. 

Ney acknowledged at trial that Jesse could have had a 

weapon, but explained that he did not remember Jesse having 

a gun. The recordings of Ney’s 911 calls, played to the jury 

and admitted into evidence, do not reference a gun. Ney, 

however, included in his police statement that Jesse had a gun 

and testified before the grand jury that Jesse had a gun that 

evening.
6

Ney responded in the affirmative and the dispatcher 

terminated the call.

Ney and Donchak were placed in the police cruiser, 

and Lieutenant Moyer drove to Donchak’s home, where the 

teenagers had gathered. After speaking with them, the officers 

looked “shocked” and “confused,” and released the pair from 

the police car. App. 00989. But moments later, when 

Lieutenant Moyer and Officer Hayes saw Ney on their way 

back to the scene, they arrested him based on Piekarsky’s 

assertion that Ney had a gun. Officer Charles Kovalewski of 

the Mahanoy City Police Department arrived while 

Lieutenant Moyer was handcuffing Ney, who kept saying “it 

wasn’t him.” App. 00957. Lieutenant Moyer told Ney to 

“shut up” and placed him in the rear seat of the police car. 

App. 00958. Officer Kovalewski also got into the car. At no 

point did Kovalewski hear Ney say anything about a man 

with a gun. The officers then drove back to the scene of the 

assault. Once there, Officer Hayes—who was romantically 

involved with Piekarsky’s mother, Tammy—took Piekarsky 

toward the park and spoke with him privately.

Lieutenant Moyer telephoned Matthew Nestor, the 

Chief of Police, who was off-duty at a bar, and briefed him on

the incident. Chief Nestor then called Piekarsky’s mother.2

 2 Meanwhile, at Donchak’s home, the teenagers spoke with 

Piekarsky on the phone and were told that Piekarsky had 

Other officers remained at the park and eventually found a 

BB gun. At the police station, Garcia and Ney provided 

statements, during which Garcia never identified who kicked 

Ramirez in the head. Officer Hayes interviewed Ney about 

the gun but did not ask what Ney knew about the assault.
7

The next day, July 13, 2008, detectives from the 

District Attorney’s office arrived at the station. They, along 

with Lieutenant Moyer, interviewed Scully, who relayed “the 

cover story [the teenagers] made up” the night before. App. 

00774. Later that day, District Attorney (“D.A.”) James 

Goodman was briefed about the assault, and he instructed his 

detectives to continue to assist the police with their 

investigation. 

Ramirez died on July 14. The cause of death was ruled 

a homicide. Phone records indicate that on the afternoon of 

July 15—immediately after learning the cause of death—

Chief Nestor placed six telephone calls to Tammy Piekarsky. 

By July 21, D.A. Goodman decided to take over the 

investigation because (1) the romantic relationship between 

Tammy Piekarsky and Officer Hayes created a conflict of 

interest, and (2) some of the suspects were “trying to protect 

the kicker.” App. 01365. On July 23, D.A. Goodman 

 

given a statement to the police and the other teenagers needed 

to match their stories to Piekarsky’s. Piekarsky and his 

mother came to Donchak’s home later that evening. Based on 

the information Tammy Piekarsky received from Chief 

Nestor, which she relayed to the teenagers, everyone knew 

the situation was serious and that they would get in trouble if 

they did not “get it together and leave things out” of their 

story. App. 00773. The teenagers decided to base their stories 

on Piekarsky’s statement to the police: the fight was “one on 

one” and did not involve “drinking,” “kicking,” or “racial 

language.” App. 00560.
8

contacted the Pennsylvania State Police and the State 

Attorney General’s Office about a possible cover-up 

involving the Shenandoah Police Department.3 Two days 

later, on July 25, the D.A.’s office filed criminal complaints 

against the teenagers. 

On July 28, the D.A.’s office contacted Chief Nestor 

because D.A. Goodman had not yet received any 

investigative reports from Officer Hayes. In fact, the only 

reports D.A. Goodman received from the police department 

were (1) a July 20 report from Chief Nestor regarding his 

investigative steps in the Ramirez assault, and (2) a one-page 

report from Lieutenant Moyer about “an individual who 

brought a BB gun to the scene after the assault” on Ramirez, 

but nothing regarding the assault itself. App. 01367. Chief 

Nestor’s July 20 report did not: (1) identify the teenaged 

suspects; (2) include any of his contacts with Ms. Piekarsky; 

or (3) include his conversation with Borough Manager 

Palubinsky about the conflict of interest. 

On August 1, D.A. Goodman sent a formal 

memorandum to Chief Nestor, Lieutenant Moyer and Officer 

Hayes, requesting additional information from Nestor and 

reports from Moyer and Hayes on their involvement in the 

investigation. They complied with this request. Lieutenant 

Moyer’s report indicated that eyewitness Garcia told him at 

 3 That night, Lieutenant Moyer came to the Scully home. He 

parked down the street and told Scully’s stepfather that he 

could not risk being seen. He then said numerous witnesses 

claimed Scully kicked Ramirez and urged them to “[d]o the 

right thing” and get Scully “to confess.” App. 01296.
9

the scene that Scully had kicked Ramirez in the head. Officer 

Hayes’s report—which Chief Nestor reviewed and 

incorporated into his August 1 report—also indicated that 

Garcia identified Scully as the kicker. This was the first time 

the D.A.’s office heard from the Shenandoah Police 

Department that someone had identified Scully as the kicker, 

even though Lieutenant Moyer briefed the D.A.’s office about 

the incident on the morning of July 13. In his August 1 report, 

Nestor stated that he was the one who: (1) contacted the 

D.A.’s office about a possible conflict of interest, and (2) 

requested that the D.A.’s office take over the case.4

The FBI became involved by the end of July 2008, 

after media reports revealed that the assault may have been 

racially motivated. As part of the investigation, FBI Special 

Agent Adam Aichele interviewed Lieutenant Moyer on June 

2, 2009. At that time, Lieutenant Moyer stated that when he 

initially encountered Ney in the park on the night of the 

assault, Ney said someone had a gun, and, upon hearing this 

information, Moyer instructed Ney to get into the police car. 

Lieutenant Moyer also stated that Ney never identified 

Ramirez’s assailants. When Special Agent Aichele 

interviewed Lieutenant Moyer again on June 11, 2009, Moyer 

reiterated the same sequence of events. Special Agent Aichele 

questioned Moyer’s account and played the 911 recording for 

Moyer, in which Ney does not mention a man with a gun but 

 4 At trial, D.A. Goodman testified that Chief Nestor never 

suggested that the D.A.’s office take over and that it was

Goodman who contacted Chief Nestor to inform him that the 

D.A.’s office would be “taking over” the case because of the 

conflicts of interest and the D.A.’s suspicion that the police 

department was involved in a cover-up. App. 01365.
10

does identify Ramirez’s assailants. After hearing the 

recording, Lieutenant Moyer said, “That’s not what he told 

me.” App. 01674. Special Agent Aichele played the recording 

several more times for Moyer, who denied that Ney was 

speaking to him when Ney stated in the 911 call, “There they 

go,” claiming that Ney must have been speaking to the 

dispatcher. Lieutenant Moyer then changed his story, stating 

that Ney must have told him about the gun after he put Ney in 

the police cruiser.

B.

On December 10, 2009, a federal grand jury returned a 

five-count indictment against Chief Nestor, Lieutenant Moyer 

and Officer Hayes, charging each with conspiring to falsify 

documents with the intent to obstruct an investigation of a 

matter within the jurisdiction of an agency of the United 

States, in violation of 18 U.S.C. § 371 (Count One), and with 

the substantive offense of falsifying documents in violation of 

18 U.S.C. § 1519 (Count Two). The indictment additionally 

charged Lieutenant Moyer with two counts of obstruction of 

justice in violation of 18 U.S.C. § 1512 (Counts Three and 

Four) and one count of making false statements in violation 

of 18 U.S.C. § 1001 (Count Five).

Chief Nestor moved to dismiss Counts One and Two 

of the indictment and also moved for a bill of particulars 

seeking (1) the agency and matter within the federal 

government’s jurisdiction and (2) the reports and/or 

statements alleged to be false in Count Two. The District 

Court denied the motion to dismiss and granted Chief 

Nestor’s motion for a bill of particulars with respect to the 

“federal investigation or matter under the jurisdiction of a 

United States agency [Nestor] is alleged to have contemplated 
11

at the time of the alleged obstructive acts.” App. 00287. In 

response, the government informed Chief Nestor that the 

matter within the FBI’s jurisdiction was the racially 

motivated killing of Ramirez. The Court denied Chief 

Nestor’s motion with respect to reports and/or statements 

pertaining to Count Two, concluding that the indictment 

specifically identified the reports at issue, the investigation to 

which they pertained, their subject matter, authors, and 

relevant dates.

Defendants pleaded not guilty and proceeded to trial. 

At the close of the government’s case-in-chief, defendants 

moved for judgments of acquittal on sufficiency grounds. The 

Court denied the motions. On January 27, 2011, after a 

two-week trial, the jury convicted Moyer of making false 

statements (Count Five) and Nestor of falsifying documents 

(Count Two). Defendants were acquitted on all other counts. 

After the verdict, the Court denied defendants’ motions for 

judgments of acquittal and new trials. Lieutenant Moyer was 

sentenced to three months’ imprisonment on Count Five, 

followed by one year of supervised release; Chief Nestor was 

sentenced to thirteen months’ imprisonment on Count Two, 

followed by two years of supervised release. Defendants 

timely appealed.5

II.

We first consider Nestor’s substantive challenges to 

Count Two of the indictment. He contends that the District 

Court (1) exceeded its discretion by denying the requested bill 

 5 The District Court had jurisdiction under 18 U.S.C. § 3231. 

We have jurisdiction under 28 U.S.C. § 1291. 
12

of particulars relating to the alleged false statements; (2) erred 

by refusing to dismiss Count Two because it was duplicitous; 

and (3) exceeded its discretion by failing to enforce the bill of 

particulars it did order. We address each of these contentions 

in turn.

A.

First, Nestor contends that the District Court exceeded 

its discretion by denying the requested bill of particulars 

relating to the alleged false statements. The sufficiency of an 

indictment is a question of law over which we exercise 

plenary review. See United States v. Hodge, 211 F.3d 74, 76 

(3d Cir. 2000). A district court’s denial of a motion for a bill 

of particulars is reviewed for an abuse of discretion. See

United States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005).

For an indictment to be sufficient, it must contain all 

the elements of a crime and adequately apprise the defendant 

of what he must be prepared to meet. See Russell v. United 

States, 369 U.S. 749, 763-766 (1962). “[W]hen the indictment 

itself is too vague and indefinite for such purposes,” a bill of 

particulars is warranted. United States v. Addonizio, 451 F.2d 

49, 64 (3d Cir. 1971) (internal quotation marks and citation

omitted). “The purpose of the bill of particulars is to inform 

the defendant of the nature of the charges brought against him 

to adequately prepare his defense, to avoid surprise during the 

trial and to protect him against a second prosecution for an 

inadequately described offense.” Id. at 63-64 (quoting United 

States v. Tucker, 262 F. Supp. 305, 308 (S.D.N.Y. 1966)). 

The decision to grant a motion for a bill of particulars is a 

“discretionary matter with the trial court,” and a denial of 

such a motion “does not amount to an abuse of discretion 

unless the deprivation of the information sought leads to the 
13

defendant’s inability to adequately prepare his case, to avoid 

surprise at trial, or to avoid the later risk of double jeopardy.” 

Id. at 64.

Nestor contends that Count Two of the indictment was 

insufficient because it failed to identify the false statements 

underlying his conviction. See Virgin Islands v. Pemberton, 

813 F.2d 626, 632 (3d Cir. 1987). Nestor asserts he was 

prejudiced by this because, without knowing which 

statements were allegedly false, he was unable to properly 

prepare for trial. Therefore, Nestor contends, the District 

Court exceeded its discretion by denying his motion for a bill 

of particulars. 

We conclude that the indictment here was sufficiently 

detailed such that a bill of particulars was not necessary.

When an indictment merely quotes the language of a statute 

and that statute contains generalities, the indictment must 

factually define those generalities, descending into 

particulars. See Russell, 369 U.S. at 765. Tracking the 

language of § 1519, Count Two charged Nestor with aiding 

and abetting others in falsifying documents while acting in 

relation to and in contemplation of a matter within federal 

jurisdiction, and doing so with the intent to impede, obstruct, 

and influence an investigation into that matter. The 

indictment, however, did more than just set forth the offense 

in the words of the statute. Count Two explained that the 

falsified documents were “official police reports” created 

between July 12, 2008, and March 30, 2009. App. 00053. 

Because Count Two incorporated Count One (charging 

conspiracy to violate § 1519), Nestor also knew which 

specific police reports were being investigated and which
14

federal matter was at issue: the racially motivated assault of 

Ramirez. 

Although the government did not identify every 

omission or inclusion that rendered false the documents 

identified in the indictment, and thus “did not, at the pre-trial 

stage, weave the information at its command into the warp of 

a fully integrated trial theory for the benefit of the 

defendant[],” the government was not “required to do so.” 

Addonizio, 451 F.2d at 64 (citation omitted). Rule 7(c) of the 

Federal Rules of Criminal Procedure requires an indictment 

to be “concise” and contain “essential facts,” but does not 

require the indictment to include every fact to be alleged by 

the government. Moreover, we agree with the District Court’s 

assessment that the specificity with which the government 

identified the reports at issue made it “highly unlikely that 

[Nestor would] be unfairly surprised with an unfamiliar 

police report at trial.” App. 00288. Because the indictment 

here was sufficiently detailed, we conclude that the District 

Court did not exceed its discretion by declining Nestor’s 

request for a bill of particulars. 

B.

Nestor asserts that Count Two of the indictment should 

be dismissed altogether because it alleged multiple false 

statements in multiple police reports in a single count and 

was, therefore, duplicitous. “Duplicity is the joining of two or 

more distinct offenses in a single count, so that a general 

verdict does not reveal exactly which crimes the jury found 

the defendant had committed.” United States v. Gomberg, 

715 F.2d 843, 845 (3d Cir. 1983) (citation omitted), overruled 

on other grounds by Garrett v. United States, 471 U.S. 773 

(1985). Whether an indictment is duplicitous is a question of 
15

law subject to de novo review. See United States v. Haddy, 

134 F.3d 542, 547 (3d Cir. 1998). 

Our analysis begins by ascertaining “the allowable unit 

of prosecution to decide whether the indictment properly 

charges a violation of the pertinent statute.” United States v. 

Root, 585 F.3d 145, 150 (3d Cir. 2009) (citation omitted). To 

do so, we discern “[c]ongressional intent by examining the 

language of the statute.” Id.

Whoever knowingly alters, destroys, mutilates, 

conceals, covers up, falsifies, or makes a false 

entry in any record, document, or tangible 

object with the intent to impede, obstruct, or 

influence the investigation or proper 

administration of any matter within the 

jurisdiction of any department or agency of the 

United States or any case filed under title 11, or 

in relation to or contemplation of any such 

matter or case, shall be fined under this title, 

imprisoned not more than 20 years, or both.

(citation omitted). The statute 

states:

18 U.S.C. § 1519. The statute is silent as to whether each 

falsified document—or even each falsified statement—is 

required to be charged separately or whether multiple 

statements or documents may be combined in one count. 

The question of whether each falsified entry in a single 

document must be charged separately was recently considered 

in United States v. Schmeltz, --- F.3d ----, 2011 WL 6351623 

(6th Cir. 2011), in which the government charged a defendant 

with one count of obstruction for multiple falsified entries in 

a single document. The court held that “[t]he ‘falsifies’ clause 
16

of § 1519 was . . . intended to punish the falsification of a 

document, rather than specific statements or omissions within 

a document. Accordingly, [the defendant] could violate 

§ 1519 once—and no more than once—by falsifying [a 

single] . . . report with his omissions.” Id. at *4. We agree 

with the rationale of the Court of Appeals for the Sixth 

Circuit and conclude that the statute does not require the 

government to charge separate counts for each false entry in a 

document.

Section 1519 does not explain in ipsis verbis whether 

each falsified document must be charged separately. The 

statute criminalizes the falsifying of “any record.” The word 

“any” is defined as “[a]n indeterminate derivative of one . . . 

in which the idea of unity . . . is subordinated to that of 

indifference as to the particular one or ones that may be 

selected.” Oxford English Dictionary (3d ed. 2009) (online 

version Dec. 2011). Courts have consistently rejected 

duplicity arguments when the statute employs “any” as a 

signifier regarding the “allowable unit of prosecution.” See 

e.g., Root, 585 F.3d at 150-151 (explaining that multiple 

years of tax evasion may be combined in one count for 

violation of 26 U.S.C. § 7201, which criminalizes any willful 

“attempts in any manner to evade or defeat any tax imposed

by this title . . . .” (emphases added)); United States v. 

Brimberry, 744 F.2d 580, 583 (7th Cir. 1984) (“We find that 

these separate actions of the defendant were in furtherance of 

the sole object of destroying all Stix records in Miller’s 

possession, and . . . these actions constituted a continuing 

course of conduct.”); United States v. Berardi, 675 F.2d 894, 

898 (7th Cir. 1982) (concluding that an indictment may 

combine three separate attempts to influence a witness’s 

testimony into one count of obstructing justice by “threats or 
17

force, or by any threatening letter” in violation of 18 U.S.C. 

§ 1503). 

Interpretation of the word “record” permits this 

reading as well. “Record” is defined as “anything preserving 

information and constituting a piece of evidence about past 

events.” Oxford English Dictionary (3d ed. 2009) (online 

version Dec. 2011). Thus, the “record” concerning the 

investigation into the Ramirez assault could fairly be 

interpreted as the collection of official police reports. Because 

Count Two alleges a continuing course, between July 12, 

2008, and March 30, 2009, of falsifying the “record” to 

obstruct a single federal investigation—and identifies 

multiple reports that were created to that singular end—the 

indictment is not duplicitous. See Berardi, 744 F.2d at 898 

(holding that an indictment is not duplicitous when it is 

“fairly interpreted” to set forth a “continuing course of 

conduct, during a discrete period of time” to obstruct justice 

with facts that support such a theory); see also Rule 7(c)(1) 

(allowing a single count to allege “that the defendant 

committed [the offense] by one or more specified means”).

But our inquiry is not yet finished. Because the 

government has discretion to draw “[t]he line between 

multiple offenses and multiple means to the commission of a 

single continuing offense,” Berardi, 675 F.2d at 898, we must 

also “examine the concerns traditionally associated with 

charging in one count what could be several independent 

charges.” Root, 585 F.3d at 154 (internal quotation marks and 

citation omitted). These concerns include: (1) avoiding doubt 

that a general verdict may mask a finding of guilt as to one 

crime but not another; (2) avoiding risk that the jury was not 

unanimous as to any one of the crimes charged; (3) providing
18

the defendant adequate notice; (4) supplying an adequate 

basis for sentencing; and (5) protecting against double 

jeopardy. See id. (citation omitted).

Nestor argues that Count Two’s duplicity prejudiced 

him because the jurors may have relied on different acts in 

concluding that he was guilty of obstructing justice. We 

disagree. Nestor was convicted of knowingly falsifying the 

record with the intent to obstruct a matter within the 

jurisdiction of the FBI. The jury instructions were crystal 

clear that if the jury found Nestor “guilty of an offense[,]

every [juror] must agree that the government has overcome 

the presumption of innocence with evidence that proves each 

element of that offense beyond a reasonable doubt.” App. 

02626. At trial, following the reading of the verdict, the jury 

was polled and the verdict was affirmed individually by each 

juror. Thus, every juror agreed that between July 12, 2008, 

and March 30, 2009, Nestor engaged in a continuing course 

of conduct of using the official police reports to knowingly 

falsify the record of the Ramirez investigation, with the intent 

to obstruct a matter within the jurisdiction of the FBI. Given 

this, we conclude that Count Two of the indictment “may 

fairly be read to charge but a single scheme and is therefore 

not duplicitous.” Root, 585 F.3d at 150 (quoting United States 

v. Shorter, 809 F.2d 54, 57 (D.C. Cir. 1987)).

C.

Nestor contends also that the District Court exceeded 

its discretion in refusing to enforce the bill of particulars that 

it did order.6

 6 The District Court’s order stated: “The government is 

directed to disclose what matter within the jurisdiction of an 

In response to the Court’s order, the government 
19

informed Nestor that “the matter within the jurisdiction of the 

[FBI was] the racially motivated killing of” Ramirez. App. 

00302. Nestor asserts that this response was inadequate and 

required further enforcement. We disagree. 

First, the FBI clearly has jurisdiction to investigate 

racially motivated killings under several statutes, including 18 

U.S.C. § 241, § 245, and 42 U.S.C. § 3631. Second, that the 

government did not identify a specific criminal statute over 

which it had jurisdiction is of no consequence. The plain 

language of 18 U.S.C. § 1519 criminalizes a defendant’s 

efforts to obstruct “the investigation or proper administration 

of any matter” within the jurisdiction of the FBI, “or in 

relation to or contemplation of any such matter.” Indeed, 

§ 1519 covers efforts to obstruct investigations that do not

result in the filing of charges. See, e.g., United States v. Gray, 

642 F.3d 371, 379 (2d Cir. 2011) (“[Section] 1519 does not 

require the existence or likelihood of a federal 

investigation.”). Thus, if the statute does not require the 

existence of a federal investigation before criminal liability 

may attach, it certainly does not require the government to 

identify a specific federal statute that is the focus of the 

investigation. Therefore, because the FBI unquestionably has 

jurisdiction to investigate racially motivated killings, and 

because Nestor was informed that the racially motivated 

killing of Ramirez was the federal matter at issue in Count 

Two, the District Court did not exceed its discretion by

denying a request for additional information. We therefore 

reject Nestor’s three challenges to the indictment.

 

agency of the United States Defendant is alleged to have 

contemplated.” App. 00290.
20

III.

Nestor raises several challenges to the sufficiency of 

evidence to support his conviction on Count Two for 

obstructing justice in violation of 18 U.S.C. § 1519. For the 

reasons that follow, we conclude that these contentions do not 

carry the day.

Count Two of the indictment charged Nestor with 

knowingly falsifying police reports with the intent to impede, 

obstruct, or influence the investigation into the racially 

motivated assault of Ramirez. Nestor contends that the 

evidence was insufficient to prove his guilt on Count Two.

Sufficiency of the evidence is a question of law, subject to 

plenary review. See United States v. Silveus, 542 F.3d 993, 

1002 (3d Cir. 2008). We review “the evidence in the light 

most favorable to the Government,” afford “deference to a 

jury’s findings,” and draw “all reasonable inferences in favor 

of the jury verdict.” United States v. Riley, 621 F.3d 312, 329 

(3d Cir. 2010) (internal quotation marks and citation omitted). 

We will overturn the verdict “only when the record contains 

no evidence, regardless of how it is weighted, from which the 

jury could find guilt beyond a reasonable doubt.” Id. (internal 

quotation marks and citation omitted). 

Nestor asserts that the evidence was insufficient to 

convict him because the government failed to prove: (1) that 

he knowingly falsified documents; (2) that he knew the 

“matter” at issue was within the FBI’s jurisdiction; (3) that he 

intended to obstruct an FBI investigation; and (4) that he 

acted in “contemplation of” such a matter. To resolve these 

challenges, we must first consider what proof is required to 

establish a violation of § 1519.
21

A.

The parties agree that the government must prove that 

Nestor knowingly falsified a record or document. The 

government presented evidence from which a reasonable 

juror could conclude not only that Nestor had a motive to 

falsify police reports,7

 7 Evidence presented to support Nestor’s motive includes 

testimony that: (1) he was briefed after the assault that the 

suspects were local teenagers, including Piekarksy; (2) his 

subordinate, Officer Hayes, was dating Piekarsky’s mother; 

(3) he was friends with, and had vacationed with, Officer 

Hayes and Ms. Piekarksy; (4) he spoke with Ms. Piekarsky on 

the night of the assault, after which she instructed the 

teenagers to get their stories straight before talking with the 

police (a story which omitted the final kick to Ramirez and 

the use of racial slurs); and (5) he called Ms. Piekarsky 

immediately after learning that Ramirez’s death was ruled a 

homicide. 

but that he did, in fact, knowingly 

falsify reports and aided and abetted others in doing so as 

well. The jury learned that on August 1, 2008, as part of the 

D.A.’s investigation into a possible police cover-up of the 

Ramirez assault, the D.A. formally directed Nestor, Moyer 

and Hayes to prepare reports of their investigative efforts. 

The jury learned that Hayes’s report—which Nestor reviewed 

and incorporated into his own report—falsely indicated that 

eyewitness Garcia identified Scully as the one who kicked the 

victim in the head. The jury also heard evidence from which 

it could reasonably infer that Nestor—who was present at

Garcia’s interview—knew the information in the report about 

Garcia identifying the kicker was false. App. 01997. 

Moreover, none of the police reports included any mention of 
22

racial motivation for the assault. Nestor’s own July 20 report

did not: (1) identify the teenaged suspects then known to him; 

(2) include any of his contacts with Ms. Piekarsky; or (3) 

include his conversation with Palubinsky about the conflict of 

interest. Nestor’s August 1 report, moreover, falsely stated 

that he was the person who (1) contacted the D.A.’s office 

about a possible conflict of interest; and (2) requested that the 

D.A.’s office take over the case. In these respects, the reverse 

was true.

Nestor contends that, like other obstruction of justice 

statutes, § 1519 does not criminalize the omissions in his 

report because there is no proof that he had a 

contemporaneous duty to disclose the specific information

alleged to have been omitted. See United States v. Curran, 20 

F.3d 560, 566 (3d Cir. 1994) (“[T]o convict under a section 

1001 concealment charge, the government must show that a 

defendant had a legal duty to disclose the facts at the time he 

was alleged to have concealed them.”). Furthermore, Nestor 

contends, none of the omissions or false representations may

be considered material. 

These arguments fail. It borders on the ridiculous to 

assert that a Chief of Police would not have a duty to disclose 

the identity of suspects in his official police reports or,

conversely, that withholding the names of suspects—known 

to him—in those official police reports would be deemed 

acceptable. Furthermore, although one court has concluded 

that material omissions may support a conviction under 

§ 1519, see United States v. Lanham, 617 F.3d 873, 887 (6th 

Cir. 2010), we refuse to require such a conclusion, because 

materiality is not an express element of § 1519, as it is in 18 
23

U.S.C. § 1001. Nestor’s reliance on Curran, therefore, is 

misplaced, because that case involved § 1001.8

From all of this evidence, we conclude that a 

reasonable juror could find that Nestor knowingly falsified 

documents. There was sufficient evidence to prove that he 

knowingly (1) endorsed false information contained in his 

subordinate’s report, (2) omitted information from his own 

report, and (3) produced false information in his report, all 

with the intent to impede the investigation into the racially 

motivated assault.

 8 Regardless, Nestor’s omissions were material. His report 

omitted the names of the suspects involved in the assault, and 

this information would certainly “be of a type capable of 

influencing” the investigation. United States v. McBane, 433 

F.3d 344, 351 (3d Cir. 2005). He also omitted his 

communications with a suspect’s mother and his personal 

relationship with her, which suggests an effort to conceal his 

preferential treatment of that suspect. See United States v. 

Lanham, 617 F.3d 873, 887 (6th Cir. 2010) (holding that a 

“reasonable fact-finder could conclude that [a defendant] 

falsified his report” in violation of § 1519 when he omitted 

information “as an attempt to ‘cover up’” information). 

Nestor’s affirmative misrepresentations regarding his 

conversations with the D.A. were also material, because if he 

had truthfully reported that it was the D.A. who insisted on 

taking over the investigation, this information would given 

weight to the conflicts of interest and raised questions about 

the police department’s actions during the investigation.
24

B.

Nestor maintains that the knowledge requirement of 

§ 1519 necessitates that the government prove Nestor knew 

the “matter” at issue was within the jurisdiction of the FBI. 

We decline to read such a requirement into the statute. See

Bates v. United States, 522 U.S. 23, 29 (1997) (“[W]e 

ordinarily resist reading words or elements into a statute that 

do not appear on its face.”).

The most natural reading of § 1519, which we accept, 

is to interpret “knowingly” as modifying its surrounding 

verbs only: “alters, destroys, mutilates, conceals, covers up, 

falsifies, or makes a false entry.” 18 U.S.C. § 1519; see also

United States v. Yielding, 657 F.3d 688, 714 (8th Cir. 2011). 

Although the Supreme Court has occasionally interpreted 

“knowingly” more broadly when scienter is not otherwise 

expressed in the criminal statute, see, e.g., United States v.

X-Citement Video, Inc., 513 U.S. 64, 69-70 (1994), that 

“concern[] [is] not present here,” because § 1519 expressly 

“requires proof that an accused knowingly falsified a 

document, with intent to impede, obstruct, or interfere with 

the investigation or proper administration of a matter,” 

Yielding, 657 F.3d at 714. “By the plain terms of § 1519, 

knowledge of a pending federal investigation or proceeding is 

not an element of the obstruction crime.” Gray, 642 F.3d at 

378.

Indeed, “[i]t is well settled that mens rea requirements 

typically do not extend to the jurisdictional elements of a 

crime—that ‘the existence of the fact that confers federal 

jurisdiction need not be one in the mind of the actor at the 

time he perpetrates the act made criminal by the federal 

statute.’” United States v. Cooper, 482 F.3d 658, 664 (4th Cir. 
25

2007) (quoting United States v. Feola, 420 U.S. 671, 677 n.9 

(1975)). The government therefore need not prove that Nestor 

actually knew that the “matter” at issue was within the 

jurisdiction of the federal government when he falsified 

documents.9 It need only prove that he knowingly falsified 

them. To that end, we conclude that there was sufficient 

evidence for a reasonable juror to find that he did so.

C.

Nestor contends also that the government did not 

prove a sufficient “nexus” between his conduct and the 

federal investigation, as required by United States v. Aguilar, 

515 U.S. 593 (1995), and Arthur Andersen LLP v. United 

States, 544 U.S. 696 (2005). We conclude that proof of such a 

nexus is not required. The text of § 1519 requires only proof 

that Nestor knowingly falsified documents and did so with the 

intent to “impede, obstruct, or influence the investigation or 

proper administration of any matter” that happens to be 

within federal jurisdiction.

 9 Although it was not required to do so, the government did 

present sufficient evidence for a reasonable juror to find that 

Nestor knew the matter at issue was within the FBI’s 

jurisdiction. Witnesses testified that it was widely reported by 

the local media outlets that the FBI became involved in the 

investigation by the end of July—before Nestor wrote both 

police reports. App. 0118-01120. In addition, the government 

presented evidence that every certified police officer in 

Pennsylvania is taught that the FBI has jurisdiction over civil 

rights violations, such as ethnic intimidation and bias crimes, 

and that hate crimes are covered by a variety of federal 

statutes. App. 01572-01574, 01577-01580, 01607-01610.
26

In reliance upon Aguilar and Arthur Andersen, Nestor 

argues that the government must prove that he intended to 

impede a specific federal investigation. In Aguilar, the Court 

held that the defendant’s act of lying to investigators was not 

sufficiently connected to a grand jury proceeding to uphold 

his conviction under the general obstruction statute, 18 U.S.C. 

§ 1503. See 515 U.S. at 600-601. Extending the reasoning of 

Aguilar to § 1512(b)(2), the Court in Arthur Andersen held 

that the government was required to prove a “nexus” between 

the defendant’s attempts to persuade another to destroy 

documents and a pending or foreseeable official proceeding. 

544 U.S. at 708 (reasoning that a knowingly corrupt 

persuader “cannot be someone who persuades others to shred 

documents under a document retention policy when he does

not have in contemplation any particular official proceeding 

in which those documents might be material”).

We decline to extend the reasoning of §§ 1503 and 

1512(b)(2), because “the language of § 1519 is materially 

different from [those] statutes.” Yielding, 657 F.3d at 712; 

see also United States v. Kernell, --- F.3d ----, 2012 WL 

255765, at *6-*7 (6th Cir. 2012). Section 1503 forbids 

“corruptly endeavor[ing]” to obstruct justice, and 

§ 1512(b)(2) prohibits the “knowingly corrupt[t] 

persua[sion]” to obstruct justice. Thus, in both Aguilar and 

Arthur Andersen, the Court was “required to discern the 

substance of an intent requirement from statutory terms that 

appeared to imply one, but did not speak directly to its 

content.” Yielding, 657 F.3d at 713. By contrast, the statute at 

issue here speaks “more directly to the requisite intent and 

describe[s] its scope more precisely.” Id. “That the accused’s 

intent must be wrongful is evident from the nature of the acts 

prohibited, such as knowing falsification of documents, and 
27

the requisite intent to influence, obstruct, or impede an 

investigation.” Id. (citation omitted). Nestor’s argument, 

therefore, conflicts with the plain meaning of the statute. “The 

words of the statute are unambiguous, and thus, ‘judicial 

inquiry is complete.’” Gray, 642 F.3d at 377 (quoting Conn. 

Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)). Therefore, 

“[i]t is sufficient that the ‘matter’ [under investigation] is 

within the jurisdiction of a federal agency as a factual 

matter.” Yielding, 657 F.3d at 714 (citation omitted). We 

accept the analysis of the Court of Appeals for the Eighth 

Circuit in this respect.

The legislative history further confirms this 

interpretation. The Senate considered the intent requirement 

to be independent of the jurisdiction requirement, explaining 

that § 1519 “is meant to apply broadly to any acts to destroy 

or fabricate physical evidence so long as they are done with 

the intent to obstruct, impede or influence the investigation or 

proper administration of any matter, and such matter is within 

the jurisdiction of an agency of the United States.” S. Rep. 

No. 107-146, at 14 (2002) (emphases added). The Senate 

Report goes on to clarify: “[t]his statute is specifically meant 

not to include any technical requirement, which some courts 

have read into other obstruction of justice statutes, to tie the 

obstructive conduct to a pending or imminent proceeding or 

matter.” Id. at 14-15; see also 148 Cong. Rec. S7419 (daily 

ed. July 26, 2002) (statement of Sen. Patrick Leahy) (“The 

fact that a matter is within the jurisdiction of a federal agency 

is intended to be a jurisdictional matter, and not in any way 

linked to the intent of the defendant.”).

Thus, we conclude that the government was required 

only to prove that (1) Nestor intended to impede an 
28

investigation into “any matter” and (2) the matter at issue was 

ultimately proven to be within the federal government’s 

jurisdiction. It was not required to prove that Nestor intended 

to obstruct or impede a specific federal investigation.

D.

Nestor contends also that no reasonable juror could 

have found that he acted in “contemplation of” a specific 

federal investigation at the time he prepared his reports in 

July and August of 2008. Again, Nestor’s argument is based 

upon a misguided reading of § 1519. 

The statute expressly criminalizes the knowing 

falsification of any record “with the intent to impede, 

obstruct, or influence the investigation or proper 

administration of any matter within the jurisdiction of” the 

federal government. 18 U.S.C. § 1519. To ensure that the 

statute is applied “broadly,” criminal liability “also extends to 

acts done in contemplation of such federal matters, so that the 

timing of the act in relation to the beginning of the matter or 

investigation is also not a bar to prosecution.” S. Rep. No. 

107-146, at 13 (2002) (emphasis added); see also Gray, 642 

F.3d at 379 (“[Section] 1519 does not require the existence or 

likelihood of a federal investigation.”). In analyzing the intent 

requirement of § 1519, we examined the statute’s use of “any 

matter” and concluded that a defendant need not intend to 

obstruct or impede a specific federal investigation; the 

government must prove only that (1) a defendant intended to 

impede the investigation of “any matter” and (2) the matter at 

issue was ultimately proven to be within the federal 

government’s jurisdiction. See supra Part III.C. The in 

“contemplation of” clause of § 1519 refers to the same 

“matter.” Thus, the same analysis is required. 
29

Looking to the evidence presented at trial, we conclude 

that a reasonable juror could have found that Nestor acted in 

“contemplation of” an investigation into the racially 

motivated assault on Ramirez, which was within the 

jurisdiction of the FBI. The government presented evidence 

that D.A. Goodman took over the investigation because he 

determined that the “coverup was more than just the 

[teenaged] boys.” App. 01455. As part of the D.A.’s 

investigation, Goodman directed Nestor to prepare the police 

reports at issue. Moreover, there was evidence that, by the 

end of July 2008, it was well-reported by local news outlets 

that the FBI was investigating the Ramirez assault. We 

conclude that this evidence was sufficient to prove Nestor 

knowingly falsified documents in “contemplation of” an 

investigation of a “matter,” which was proven to be within the 

jurisdiction of the federal government.

IV.

Finally, Nestor challenges the constitutionality of 

§ 1519, arguing it is too vague. We apply de novo review to 

this challenge. See United States v. Weatherly, 525 F.3d 265, 

273 (3d Cir. 2008). “It is well established that vagueness 

challenges to statutes which do not involve First Amendment 

freedoms must be examined in the light of the facts of the 

case at hand.” United States v. Mazurie, 419 U.S. 544, 550 

(1975) (citation omitted).

A.

A statute is unconstitutionally vague only if it “fails to 

provide people of ordinary intelligence a reasonable 

opportunity to understand what conduct it prohibits” or 

“authorizes . . . arbitrary and discriminatory enforcement.” 
30

United States v. Amirnazmi, 645 F.3d 564, 588 (3d Cir. 2011) 

(internal quotation marks and citation omitted). In criminal 

cases, because “vagueness attacks are based on lack of notice, 

they may be overcome in any specific case where reasonable 

persons would know their conduct puts [them] at risk of 

punishment under the statute.” San Filippo v. Bongiovanni, 

961 F.2d 1125, 1136 (3d Cir. 1992) (alteration in original) 

(internal quotation marks and citation omitted). Criminal 

statutes, therefore, need only give “‘fair warning’ that certain 

conduct is prohibited” to withstand a constitutional challenge. 

Id. (quoting Colten v. Kentucky, 407 U.S. 104, 110 (1972)).

The focus of our inquiry is the meaning of the statute 

in light of common understanding and practice. See Robinson 

v. Napolitano, 554 F.3d 358, 365 (3d Cir. 2009). In looking at 

the language of the statute, § 1519 “rather plainly 

criminalizes the conduct of an individual who (1) knowingly 

(2) makes a false entry in a record or document (3) with the

intent to impede or influence a federal investigation.” United 

States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008). As a law 

enforcement officer, Nestor cannot credibly argue that the 

statute was unconstitutionally vague as applied to him. Any 

person of ordinary intelligence—let alone a chief of police—

would comprehend that this statute prohibits a police officer 

from knowingly writing a false report with the intent to 

impede an ongoing, or future, investigation. See id. (“A 

person of ordinary intelligence would understand a police 

report to be a ‘record’ or ‘document,’ and would also read the 

language ‘any matter within the jurisdiction of [a] department

. . . of the United States’ to include an FBI investigation.”).

Nestor’s conduct, therefore, falls plainly within the

prohibitions of the statute, and as such, the statute’s “plain 
31

text” put Nestor “on notice [that] his conduct was unlawful.” 

Id.

Section 1519’s scienter requirement, moreover, 

eliminates any concerns regarding statutory vagueness. 

Scienter requirements in criminal statutes “alleviate 

vagueness concerns” because a mens rea element makes it 

less likely that a defendant will be convicted for an action 

committed by mistake. Gonzales v. Carhart, 550 U.S. 124, 

149 (2007) (citation omitted). Because a defendant will be 

convicted for violating § 1519 “only for an act knowingly 

done with the purpose of doing that which the statute 

prohibits, the accused cannot be said to suffer from lack of 

warning or knowledge that the act which he does is a 

violation of law.” Screws v. United States, 325 U.S. 91, 102 

(1945). Here, by the express language of the statute, no 

liability will be imposed for knowingly falsifying documents 

without an “intent to impede, obstruct, or influence a matter.” 

18 U.S.C. § 1519; see also Kernell, 2012 WL 255765, at *5

(“[T]he construction creates the needed specific intent and 

avoids [defendant’s] concern that ‘the statute would forbid 

innocent conduct.’” (quoting Yielding, 567 F.3d at 711)). 

B.

Nestor contends also that applying § 1519 to his 

actions would require a Procrustean stretching of that 

statute’s language, because his actions were not done in 

“contemplation of” an FBI investigation. Specifically, Nestor 

asserts that the “contemplation of” clause is too vague 

because it does not specify what a defendant must know to 

trigger criminal liability. 
32

We have already concluded that it was enough that the 

government prove that Nestor acted in “contemplation of” an 

investigation into the racially motivated assault on Ramirez, 

which was within the jurisdiction of the FBI. Although this 

interpretation makes criminal liability very broad under 

§ 1519, this “is consistent with the legislative history and 

other cases to consider the question.” Kernell, 2012 WL 

255765, at *8; see also Gray, 642 F.3d at 379 (“[Section] 

1519 does not require the existence or likelihood of a federal 

investigation.”); S. Rep. No. 107-146, at 14 (2002) 

(explaining that § 1519 “is meant to apply broadly to any acts 

to destroy or fabricate physical evidence” (emphasis added)). 

“Moreover, even if this element is potentially vague as 

it relates to hypothetical defendants,” it is clearly not vague as 

it relates to Nestor. Kernell, 2012 WL 255765, at *8. As 

previously discussed, the government presented sufficient 

evidence to prove that when Nestor falsified the police 

reports, he contemplated an investigation into a matter within 

the jurisdiction of the FBI, intending to impede that 

investigation. See supra, Part III.D. Thus, we conclude that 

the statute is not vague “in the light of the facts of the case at 

hand.” Mazurie, 419 U.S. at 550 (citation omitted).10

 10 Nestor also maintains that § 1519 is void for vagueness as 

applied to his case because the nexus required between his 

conduct and the investigation is too attenuated. This argument 

is foreclosed by our conclusion that the government is not 

required to prove a nexus between Nestor’s conduct and the 

investigation. See supra Part III.C.
33

Because § 1519 clearly expresses the elements that the 

government must prove to secure a conviction under the 

statute, we reject Nestor’s challenges to its constitutionality.

V.

We now turn to review Moyer’s conviction on Count 

Five, for knowingly making a false material statement in a 

matter within the FBI’s jurisdiction in violation of 18 U.S.C. 

§ 1001.11 Specifically, the indictment alleged that, in 

conversations with the FBI on June 2 and 11, 2009, Moyer 

falsely stated that (1) an eyewitness warned that there was a 

man with a gun in the park and (2) the same eyewitness never 

identified anyone involved in the assault on Ramirez.

To establish a violation of § 1001, the government was 

required to prove each of the following five elements: (1) that 

Moyer made a statement or representation; (2) that the 

statement or representation was false; (3) that the false 

statement was made knowingly and willfully; (4) that the 

statement or representation was material; and (5) that the 

statement or representation was made in a matter within the 

 11 Again, sufficiency of the evidence is a question of law, 

subject to plenary review. See Silveus, 542 F.3d at 1002. We 

review “the evidence in the light most favorable to the 

Government,” afford “deference to a jury’s findings,” and 

draw “all reasonable inferences in favor of the jury verdict.” 

Riley, 621 F.3d at 329 (internal quotation marks and citation

omitted). We will overturn the verdict “only when the record 

contains no evidence, regardless of how it is weighted, from 

which the jury could find guilt beyond a reasonable doubt.” 

Id. (internal quotation marks and citation omitted).
34

jurisdiction of the federal government.12 See United States v. 

Barr, 963 F.2d 641, 645 (3d Cir. 1992). Moyer contends that 

the government’s evidence was insufficient to prove three of 

the required five elements: (1) that the statements were false; 

(2) that they were made knowingly and willfully; and (3) that 

they were material. For the reasons that follow, we conclude 

that the evidence was sufficient to support Moyer’s 

conviction.

A.

First, we agree with the government that there was 

sufficient evidence that Moyer made false statements. Based 

on the evidence presented at trial, a reasonable juror could 

find that Moyer falsely stated that the eyewitness, Francis 

 12 18 U.S.C. § 1001 states:

(a) Except as otherwise provided in this section, 

whoever, in any matter within the jurisdiction of 

the executive, legislative, or judicial branch of 

the Government of the United States, 

knowingly and willfully—

(1) falsifies, conceals, or covers up by 

any trick, scheme, or device a material 

fact;

(2) makes any materially false, fictitious, 

or fraudulent statement or representation; 

or

(3) makes or uses any false writing or 

document knowing the same to contain 

any materially false, fictitious, or 

fraudulent statement or entry;

shall be fined under this title, imprisoned not more 

than 5 years . . . .
35

Ney, did not identify Ramirez’s assailants. Indeed, the 911 

call recorded this identification. The recording indicates that,

after being asked who the teenagers were, Ney told the 

officers that a bunch of 16- to 17-year-old kids, who had 

beaten up Ramirez, began running when Ney asked what they 

were doing. This evidence is more than sufficient to support

the jury’s finding that Moyer falsely stated to the FBI that 

Ney did not identify the suspects. See United States v. 

McKanry, 628 F.3d 1010, 1018 (8th Cir. 2011) (upholding 

defendant’s false statement conviction where defendant’s 

statement was “directly contradicted by [trial] evidence”). 

The jury’s finding that Moyer falsely stated that Ney 

reported seeing a man with a gun is equally well supported. 

There is no mention of a man with a gun whatsoever in the 

911 recording. Moreover, Officer Hayes’s written report 

makes no mention of Ney informing the officers about such a 

man. Ney even testified that immediately after the 911 call 

ended, he got into the police cruiser and did “not remember” 

having a conversation with anyone while in the cruiser. App. 

01027. Furthermore, Moyer confirmed that there were no 

conversations while Ney was in it. Ney also testified that it 

was only after one of the teenagers told police that Ney had a 

gun—and immediately before the police arrested him—that 

he realized the police were even concerned about a man with 

a gun. Thus, the jury could reasonably conclude that Ney 

never actually informed the police—either during the 

recorded 911 call or immediately after—that there was a man 

with a gun. Although Moyer testified that Ney did, in fact, 

mention a man with a gun, it was the jury’s duty—and not 

ours—to “weigh evidence [and] determine the credibility of 

witnesses . . . .” United States v. Beckett, 208 F.3d 140, 151 

(3d Cir. 2000) (citing United States v. Casper, 956 F.2d 416, 
36

421 (3d Cir. 1992)). Based on the 911 recording, Hayes’s 

written report, and Ney’s testimony, the evidence was 

sufficient to support a finding that Moyer’s statements to the 

FBI were false. See McKanry, 628 F.3d at 1018 (holding that 

the “evidence adequately supports the jury’s verdict” when 

defendant’s “denial was directly contradicted by evidence, 

including [defendant’s] recorded admission”).

B.

We also agree that there was sufficient evidence that 

Moyer acted “deliberately and with knowledge” that his 

representations were false and that he was aware “at least in a 

general sense, that his conduct was unlawful.” United States 

v. Starnes, 583 F.3d 196, 212 (3d Cir. 2009). When 

questioned on June 2 and June 11, 2009, Moyer told the FBI 

that, immediately upon his arrival at the scene, Ney warned of

someone in the park with a gun. The jury also heard 

testimony that, when confronted with the 911 recording in 

which Ney did not mention a gun and did identify the 

participants, Moyer changed his original statement so it 

would no longer conflict with the recording. Moyer’s efforts 

to conform his statement to the recording are sufficient to 

support the jury’s finding that Moyer deliberately changed his 

statement and knew that both his original and changed 

statements were false. See id. at 212-213. The government, 

moreover, presented evidence that no gunman was ever 

mentioned, as Ney testified at trial that he had no recollection 

of ever mentioning that anyone had a gun in the park that 

night. Furthermore, the jury also heard sufficient evidence to 

conclude that Moyer knew his actions were unlawful; as a 

certified law enforcement officer, Moyer received training 

that made him aware that, “at least in a general sense,” 

obstructing a criminal investigation by lying to a federal law
37

enforcement officer is unlawful. Id. at 212. All of this 

evidence was sufficient to prove that Moyer’s actions were 

knowing and willful. 

C.

Finally, we conclude that there was sufficient evidence 

to support a finding of materiality. Courts have recognized 

that “a frequent aim of false statements made to federal 

investigators is to cast suspicion away from the declarant.” 

United States v. Lutpon, 620 F.3d 790, 806 (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 18 U.S.C. § 1001.” Id. at 806-807. 

Although the government was not required to show 

actual reliance on Moyer’s statements, it was required to 

prove that Moyer’s statements had a “natural tendency to 

influence” or were “capable of influencing” the FBI. United 

States v. Gaudin, 515 U.S. 506, 509 (1995) (internal 

quotation marks and citation omitted); see also McBane, 433 

F.3d at 352 (explaining that false statements that could cause 

the FBI “to re-direct their investigation . . . question their 

informant differently or more fully, or perhaps close their 

investigation altogether” were material). Count Five focused 

on Moyer’s efforts to obstruct the investigation, and 

specifically, his actions to focus attention away from 

Piekarsky. His statements to the FBI that Ney mentioned a 

man with a gun but did not identify Ramirez’s assailants, if 

taken as true, could have explained Moyer’s actions on the 

night of the assault with respect to his protection of the 

teenaged suspects. If believed and acted upon, Moyer’s false 

statements could have refocused the FBI’s investigation. For 
38

this reason, Moyer’s statements were material, because they 

were “of a type capable of influencing a reasonable

decisionmaker.” McBane, 433 F.3d at 351. 

Thus, we conclude that Moyer’s conviction was 

sufficiently supported by evidence that he knowingly and 

willfully made materially false statements to the FBI and we 

will therefore affirm his conviction.

VI.

For the foregoing reasons, we will AFFIRM the 

judgments of the District Court.