United States v. Baer , 92 F. App'x 942 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 03-4557
RICK JOE BAER,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-02-110)
Argued: January 22, 2004
Decided: March 15, 2004
Before WILKINS, Chief Judge, and WIDENER
and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Michael James Elston, Assistant United States Attorney,
Alexandria, Virginia, for Appellant. Brian Gay, GAY, CIPRIANO &
ARRINGTON, P.C., Virginia Beach, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Justin W. Wil-
liams, Assistant United States Attorney, Alexandria, Virginia, for
Appellant.
2 UNITED STATES v. BAER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The Government appeals an order of the district court dismissing
the indictment against Rick Joe Baer. Baer had been charged with
making a materially false statement on his application for a Secure
Identification Display Area (SIDA) badge, see 18 U.S.C.A.
§ 1001(a)(2) (West 2000). Relying on our decision in United States
v. Good, 326 F.3d 589 (4th Cir. 2003), the district court dismissed the
indictment on the basis that the statement in question was literally
true. We affirm.
I.
A.
As part of the Aviation Security Improvement Act of 1990, Pub.
L. No. 101-604, 104 Stat. 3066 (1990), Congress required an employ-
ment and criminal history investigation of any airport employee with
unescorted access to a SIDA. See 49 U.S.C.A. § 44936 (West 1997
& Supp. 2003). As is relevant here, regulations implementing the Act
prohibit the employment of an individual in a position involving unes-
corted access to a SIDA if, within the previous ten years, the individ-
ual has been convicted or found not guilty by reason of insanity of
"[u]nlawful possession, use, sale, distribution, or manufacture of an
explosive or weapon."1 49 C.F.R. § 1544.229(d)(20) (2003).
B.
Baer began employment as a firefighter for the Norfolk, Virginia
1
The Act sets forth the same prohibition, but does not include
"use" among disqualifying weapons offenses. See 49 U.S.C.A.
§ 44936(b)(1)(B)(ix).
UNITED STATES v. BAER 3
Airport Authority in 1989. In May 2002, he was required to apply for
a SIDA badge. Consistent with the Act and the implementing regula-
tions, the application form asked, "During the previous ten years,
have you been convicted or found not guilty by reason of insanity of
the following listed crimes? . . . 20. Unlawful possession, use, sale,
distribution, or manufacture of an explosive or weapon." J.A. 43. Baer
answered this question "no." However, in late 1992 Baer had been
convicted of brandishing a firearm in violation of Virginia law, a mis-
demeanor offense.
Upon Baer’s motion, the district court dismissed the indictment
based on a difference between the language of the Act and the lan-
guage of the implementing regulation. We reversed the dismissal of
the indictment and remanded for further proceedings. See United
States v. Baer, 324 F.3d 282, 288 (4th Cir. 2003). On remand, Baer
again moved to dismiss the indictment, arguing that his response to
the question about weapons use was literally true. See Good, 326 F.3d
at 591-92 (affirming dismissal of indictment on basis that response to
question on SIDA badge application was literally true). The district
court agreed and again dismissed the indictment. The Government
now appeals.
II.
We review the dismissal of the indictment de novo. See United
States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002). In order to
obtain a conviction under 18 U.S.C.A. § 1001, the Government must
demonstrate, inter alia, that the defendant made a false statement. See
United States v. Hixon, 987 F.2d 1261, 1266 (6th Cir. 1993) (listing
elements of § 1001 offense). The Government may not, however,
obtain a perjury conviction on the basis of a statement that is literally
true, even if that statement is misleading. See, e.g., Bronston v. United
States, 409 U.S. 352, 360-62 (1973) (reversing perjury conviction
under 18 U.S.C.A. § 1621 (West 2000) when defendant’s statement
was literally true but evasive); United States v. Mandanici, 729 F.2d
914, 921 (2d Cir. 1984) (applying Bronston to § 1001 charge). The
burden of precise questioning lies with the questioner; the Govern-
ment may not prosecute for perjury when an imprecise question
results in a true but evasive answer. See Bronston, 409 U.S. at 360("[W]e must read [a perjury statute] in light of our own and the tradi-
4 UNITED STATES v. BAER
tional Anglo-American judgment that a prosecution for perjury is not
the sole, or even the primary, safeguard against errant testimony.
. . . The burden is on the questioner to pin the witness down to the
specific object of the questioner’s inquiry."); United States v. Earp,
812 F.2d 917, 919 (4th Cir. 1987).
In Good, we applied this principle to a situation quite similar to the
one before us today. Jennifer Good completed a SIDA badge applica-
tion, answering "no" to the following question: "Have you ever been
convicted or found not guilty by reason of insanity of the following
listed crimes . . . 22. Burglary, Theft, Armed robbery, Possession or
Distribution of Stolen Property . . . 26. Dishonesty, Fraud, or Misrep-
resentation. . . ." Good, 326 F.3d at 590 (internal quotation marks
omitted; alterations in original). In fact, Good had been convicted of
embezzling over $100,000 approximately one year before completing
the application.
After the district court dismissed the indictment on other grounds,
this court affirmed on the basis that Good’s answer on the form was
literally true. The opinion emphasized that, according to the form,
Good was required to indicate whether she had been "convicted . . .
of the following listed crimes." Id. at 591 (emphasis in original; inter-
nal quotation marks omitted).
Embezzlement, however, was not one of the crimes listed on
the application. Given the wording of the question and the
crime for which the defendant was convicted, her answers
on the application were thus literally true; the defendant has
never been convicted of any of the crimes listed on the
application.
Id. at 591-92. The court rejected the Government’s argument that
Good’s answer was inconsistent with the intent of the question, rea-
soning that Good "was indicted for the statements that she made on
the SIDA application and the language of that application controls."
Id. at 592; see Bronston, 409 U.S. at 362 ("Precise questioning is
imperative as a predicate for the offense of perjury.").
Baer argues that Good requires us to affirm the dismissal of the
UNITED STATES v. BAER 5
2
indictment against him, and we agree. Baer was convicted, under
Virginia law, of brandishing a firearm. See Va. Code Ann. § 18.2-
282(A) (Michie Supp. 2003). Importantly, Baer was not convicted of
"use" of a firearm. Cf. 18 U.S.C.A. § 924(c)(1)(A) (West 2000) (pro-
viding penalties for a person who "uses" a firearm "during and in rela-
tion to any crime of violence or drug trafficking crime"). Therefore,
his answer on the form was literally true.
The Government’s attempts to distinguish Good are not persuasive.
First, the Government claims that the holding in Good "was not based
simply on a comparison of labels" but rather rested on the conclusion
"that ‘embezzlement’ was not ‘theft.’" Br. of the United States at 10.
In fact, the decision in Good did rest on a comparison of labels—and
properly so, in light of the language of the application, which inquired
only as to "listed crimes." See Good, 326 F.3d at 592 (explaining that
while "[t]here is no question . . . that embezzlement is a felony involv-
ing dishonesty, fraud, and misrepresentation," the application was not
phrased in those terms). The agency responsible for administering the
SIDA badge program drafted the application, and it is bound by its
own choice of language.
The Government also argues that "brandishing" a firearm is clearly
a "use" of a firearm, and thus the crime of which Baer was convicted
falls within a reasonable construction of the statute. Cf. Bailey v.
United States, 516 U.S. 137, 148 (1995) (explaining that "‘use’ cer-
tainly includes brandishing, displaying, bartering, striking with, and,
most obviously, firing or attempting to fire a firearm"). There can be
no doubt that one who brandishes a firearm "uses" it, but under the
language of the application and Good, this fact is irrelevant. The lan-
guage of the application identified certain "listed crimes"; Good tells
us that such language requires us to look only to the names of the
identified offenses, not to other crimes that may fall within the gen-
eral definition of the listed crimes.
2
"A decision of a panel of this court becomes the law of the circuit and
is binding on other panels unless it is overruled by a subsequent en banc
opinion of this court or a superseding contrary decision of the Supreme
Court." Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir.
1993) (internal quotation marks omitted).
6 UNITED STATES v. BAER
Finally, the Government argues that affirmance would "seriously
undermine the SIDA-badge program" by making it impossible to draft
a SIDA badge application that would ferret out all disqualified per-
sons. Br. of the United States at 14. For example, the Government
claims that a person convicted of "[b]urning or destroying [a] dwell-
ing house," Va. Code Ann. § 18.2-77 (Michie Supp. 2003), could
state the literal truth in answering "no" to the question of whether he
had been convicted of the listed crime of felony arson. The Govern-
ment’s concern, however, is easily addressed by simply amending the
language of the application. For example, as the Government sug-
gested at oral argument, the application could simply require that the
applicant list any prior convictions. Alternatively, language such as
"or a similar offense" could be used where appropriate. For example,
if the application completed by Baer had asked whether he had been
convicted of "unlawful possession, use, sale, distribution, or manufac-
ture of an explosive or weapon or a similar offense involving an
explosive or weapon," a negative response would almost certainly
provide a basis for prosecution.
We note that nothing in our decision here or in Good imperils the
safety of air travelers. If Baer’s prior conviction bars him from
employment in a position involving unescorted access to a SIDA, that
is true regardless of whether he accurately completed the application
form. All that is at stake here is whether Baer can be prosecuted for
failing to reveal the existence of his conviction in response to a nar-
rowly worded question.
III.
Baer provided a literally true answer to a highly specific question.
While this answer may have been misleading, even deliberate eva-
siveness does not provide a basis for a perjury prosecution when the
answer provided is facially correct. See Bronston, 409 U.S. at 360.
We therefore affirm.
AFFIRMED