United States v. Nicholas Beyer

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10250
Plaintiff-Appellee, D.C. Nos.
3:18-cr-00392-CRB-1
v. 3:18-cr-00392-CRB
NICHOLAS KING BEYER,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted January 11, 2022
San Francisco, California
Before: GOULD, BENNETT, and R. NELSON, Circuit Judges.
Nicholas Beyer appeals four convictions for making false statements to the
Federal Aviation Administration (“FAA”) in violation of 18 U.S.C. § 1001 in
applying for Airman Medical Certificates (“AMC”). We have jurisdiction under 28
U.S.C. § 1291 and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review de novo the sufficiency of the evidence and questions of statutory
interpretation. See United States v. Corrales-Vazquez, 931 F.3d 944, 947 (9th Cir.
2019). A challenge to the sufficiency of the evidence can succeed “only if, viewing
the evidence in the light most favorable to the prosecution, no rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Tanke, 743 F.3d 1296, 1300 (9th Cir. 2014). We review de novo a
constitutional vagueness challenge, United States v. Hudson, 986 F.3d 1206, 1210
(9th Cir. 2021), and a motion to dismiss an indictment on constitutional grounds,
United States v. McCalla, 545 F.3d 750, 753 (9th Cir. 2008). “Whether the
government must establish that the defendant had an independent duty to disclose
the requested information to support a violation under [§] 1001 is . . . reviewed de
novo.” United States v. De Rosa, 783 F.2d 1401, 1407 (9th Cir. 1986) (emphasis
omitted). A district court’s exclusion of expert testimony is reviewed for abuse of
discretion. United States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997).
1. In 2016, the Department of Veterans Affairs (“VA”) awarded Beyer
medical disability benefits, assigning a 50 percent disability rating for “Major
Depressive Disorder” and an overall disability rating of 70 percent. Beyer claims
that his convictions on Counts 2 and 4 should be reversed because he had no legal
duty to disclose to the FAA every single basis for his VA medical disability benefits.
He also claims that the evidence at trial was insufficient to prove that he had a duty
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to disclose the “purportedly material information” that one reason he was receiving
the disability benefit was due to his “Major Depressive Disorder.”
18 U.S.C. § 1001(a) states, in relevant part:
(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.
“[A] conviction under § 1001(a)(1) is proper where a statute or government
regulation requires the defendant to disclose specific information to a particular
person or entity.” United States v. White Eagle, 721 F.3d 1108, 1117 (9th Cir. 2013).
“[W]hen a defendant responds to specific questions on a particular topic . . . the
defendant’s silence is akin to an affirmative misrepresentation, and therefore
logically falls within the scope of § 1001’s prohibition on false and fraudulent
statements.” Id.
Beyer had a duty to disclose that his diagnosis of “major depressive disorder”
was a basis for his medical disability benefits. Question 18M of Form 8500–8, the
application form for an AMC, asked “HAVE YOU EVER IN YOUR LIFE BEEN
DIAGNOSED WITH . . . [m]ental disorders of any sort: depression, anxiety, etc.”
Beyer falsely answered “no” to Question 18M in both his 2016 and 2018
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applications.1 Question 18Y asked whether Beyer had ever received medical
disability benefits and, if he did, required an explanation. Although Beyer answered
“yes” to 18Y, his explanation identified only his knee injury (2016) and his knee and
back injuries (2018) as the bases for his medical disability benefits. Beyer did not
list “major depressive disorder,” even though the VA had assigned a 50 percent
disability rating for “major depressive disorder” and only a 10 percent rating for
every other disability that Beyer claimed, including his knee and back injuries.
Beyer’s failure to explain that “major depressive disorder” was one basis for
his disability benefits, while listing other bases, was “conceal[ing], [and] cover[ing]
up by [a] trick, scheme, or device a material fact,” 18 U.S.C. § 1001(a)(1). Beyer
was covering up the material fact of “major depressive disorder” by the trick and
device of giving an incomplete 18Y explanation. The omission was also “silence
[that] is akin to an affirmative misrepresentation, and therefore logically falls within
the scope of § 1001’s prohibition on false and fraudulent statements.” White Eagle,
721 F.3d at 1117. This is because disclosing depression as a basis for Beyer’s
medical disability benefits would have exposed his false answer to 18M that he had
never been diagnosed with depression. Whether Beyer had been diagnosed with
1
These 2016 and 2018 false answers formed the basis for the convictions on
Counts 1 and 3.
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depression is obviously material to an AMC application because aircraft pilots
suffering from psychological disorders may pose a threat to the public.2
Still, Beyer claims that nothing on Form 8500–8 specifically imposed a duty
to disclose in his 18Y “explanation” either that “major depressive disorder” was a
basis for his disability payments, or any other “purportedly material information.”
But Beyer was put on notice several times. First, Beyer had to affirm that “all
statements and answers provided by me on this application form are complete and
true to the best of my knowledge.” Second, a notice next to the button that Beyer
had to click to submit his application stated:
Whoever in any matter within the jurisdiction of any department or agency of
the United States knowingly and willingly falsifies, conceals or covers up by
any trick, scheme, or device a material fact, or who makes any false, fictitious
or fraudulent statements or misrepresentations, or entry, may be fined up to
$250,000 or imprisoned not more than 5 years, or both. (18 U.S. Code Secs.
1001, 3571).
Third, Beyer had to affirmatively acknowledge that his answers to Form 8500–8
“will be used by the [FAA] as part of the basis for issuing an [AMC] . . . under [49
2
See, e.g., Oto v. Airline Training Ctr. Arizona, Inc., 247 F. Supp. 3d 1098, 1102
(D. Ariz. 2017) (“[D]espite repeated attempts by the Captain to gain entry into the
cockpit, [Andreas] Lubitz intentionally flew the plane into mountainous terrain,
killing everyone on board. . . . Lubitz was hospitalized and underwent nine months
of psychotherapy for severe depressive episodes . . . . Plaintiffs claim Lubitz lied on
his FAA medical application by claiming that he had never been diagnosed with, or
presently had, mental disorders including depression and anxiety.”).
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U.S.C. § 44703(a)]” and “to determine whether you meet the medical standards for
[an AMC] under Title 14, [C.F.R.] part 67.”
Beyer had ample notice that he could not “explain” he was getting disability
benefits for knee and back injuries and yet omit from his 18Y explanation that
another reason he was receiving disability benefits was “major depressive disorder.”
Both the indictment and the government’s proof were sufficient.
2. Beyer also claims, “largely for [the same] reasons,” that the convictions
on Counts 2 and 4 must be reversed because 18 U.S.C. § 1001 was unconstitutionally
vague as applied to him, as he lacked “fair notice” of the required Question 18Y
explanation. We reject this claim for the same reasons we rejected Beyer’s first
claim.
3. Beyer claims that the district court erroneously excluded the proposed
testimony of two expert witnesses. Dr. Cheryl-Grace Patty (who never treated Beyer
or communicated with him at the relevant time) would have testified that the VA
tended to overdiagnose veterans like Beyer, and had in fact over-diagnosed Beyer
with major depression. Dr. Patty’s proposed testimony was irrelevant because Form
8500–8 asked whether an applicant was ever diagnosed with depression, not whether
an applicant was correctly diagnosed. Dr. Charles Denison’s proposed testimony
was also irrelevant because it would have discussed whether the FAA adequately
addresses mental health conditions in pilots. As the district court held, Dr. Denison
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“would not (and likely could not) testify that the FAA’s decisions and activities are
not influenced at all by a previous diagnosis of a mental health condition.”
AFFIRMED.
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