Lead Opinion
Appellee Pamela M. Manapat was indicted for violating 18 U.S.C. § 1001, which prohibits “knowingly and willfully” making false statements to any department or agency of the United States.
I. Background
The case arose after Manapat submitted an application for an Airman Medical Certificate to the Federal Aviation Administration. On the application form, Manapat checked “No” to two questions asking for “Record of traffic convictions” and “Record of other convictions.” In fact, she had been convicted three times prior to filling out the form.
Manapat moved to dismiss the indictment, arguing that the application form was ambiguous and misleading. Item 21 of the form was entitled “MEDICAL HISTORY.” Item 21 then contained four columns, each with the heading “Condition.” The form instructed the applicant to check “Yes” or “No” to whether or not the applicant had had any of the “conditions” listed. The twenty-four item list started with “Frequent or severe headaches,” “Dizziness or fainting spells,” “Unconsciousness
I have determined that it is a matter of fundamental fairness. And the way their question has been put on this form, which is basically to determine medical conditions, is fundamentally unfair; that the way it is put is vague. It is misleading and confusing. It is ambiguous, and the way it is configured in the form amounts to a trick question; and I think it is fundamentally unfair to base a felony prosecution on any answers that may be given by anybody on this form. And it is so fundamentally unfair that it amounts to a denial of due process.
II. Discussion
The district court dismissed the indictment upon its conclusion that the application form was ambiguous as a matter of law. Our review of the dismissal is therefore plenary. See United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir.1987).
The issue of ambiguous questions has rarely arisen in cases brought under 18 U.S.C. § 1001. Several other federal statutes, however, prohibit making false statements in other contexts. See, e.g., 18 U.S.C. § 1014 (false statements intended to influence a financial institution); 18 U.S.C. § 1623 (false statements to a grand jury or court (perjury)). The reasoning in cases concerning those statutes is equally applicable to the issue in this case, and we therefore look to those cases to guide our inquiry.
Judge Ely of the Ninth Circuit noted a number of years ago the unfairness of convicting a defendant for giving a possibly false answer to a vague question:
I do not think it proper to indict and prosecute an individual for perjury when the questions forming the basis of the charge are so vaguely and inarticulately phrased by the interrogator as to require the jury to probe the inner workings of the accused’s mind to seek to ascertain which of several plausible meanings he attributed to the ambiguous inquiries when he gave the allegedly per-jurious responses.
United States v. Cook, 497 F.2d 753 (9th Cir.1972) (Ely, J., dissenting) (emphasis original), majority opinion withdrawn by and dissenting opinion cited approvingly in, 489 F.2d 286 (9th Cir.1973). The Supreme Court agreed with this reasoning shortly thereafter: “Precise questioning is imperative as a predicate for the offense of perjury.” Bronston v. United States, 409 U.S. 352, 362, 93 S.Ct. 595, 602, 34 L.Ed.2d 568 (1973).
This court has held that when a question is “arguably ambiguous,” “the defendant’s understanding of the question is a matter for the jury to decide.” United States v. Bell, 623 F.2d 1132, 1136 (5th Cir.1980);
The practice of dismissing perjury indictments based on fundamentally ambiguous questions originated in United States v. Lattimore, 127 F.Supp. 405 (D.D.C.), aff'd by an equally divided court, 232 F.2d 334 (D.C.Cir.1955). In Lattimore, the court recognized that “[wjhile the proper test of perjury is subjective, insofar as it is based upon the understanding of the witness himself regarding the words that he used, a criminal prosecution must have certain objective standards.” Id. at 409. Thus, a question or phrase is ambiguous as a matter of law when it “is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony.” Id. at 410. See also Ryan, 828 F.2d at 1015; Lighte, 782 F.2d at 375.
In Ryan, the defendant was charged with making a false statement to a federally insured bank. In that case, a loan application required the defendant to indicate his “PREVIOUS ADDRESS (last 5 years).” The defendant listed an address in West Germany and stated that the address had been his address for ten years. The government contended that the defendant had made a false statement because the defendant had actually been living at addresses in the United States for the last four years. The court reversed his conviction, finding that the question was ambiguous in several ways. The court stated that “address” was unclear because the term does not necessarily refer to someone’s residence, but could refer to a mailing address. Furthermore, “previous” could mean any previous address, the most recent previous address, or all previous addresses. Ryan, 828 F.2d at 1015-16. Based on this ambiguity, the court held that the jury should not have been allowed to consider the defendant’s answers as a basis for conviction. Id. at 1017.
In Lighte, the court overturned a perjury conviction based on the fundamental ambiguity of the questions asked to the defendant. The court held that several questions posed by an attorney referring to the defendant as “you” failed to distinguish the defendant in his personal capacity from the defendant in his capacity as a trustee. Lighte, 782 F.2d 375-76.
Although the above cases illustrate the types of cases where courts have found that “men of ordinary intellect” might disagree over the meaning of particular questions, the cases do not answer precisely the question in the case at bar. In the present case, the defendant-appellee does not argue that any specific term is susceptible of many meanings, or that depending on the meaning one ascribes to a term, that her answer is literally true. It is undisputed that defendant’s answers to the questions were literally false. Appellee’s argument, rather, is that the application form is so confusing that one could inadvertently mark the wrong answer without realizing the import of such an action.
We find the reasoning in Lattimore useful in addressing Manapat’s argument. In Lattimore, the defendant was indicted for perjuring himself before a Senate subcommittee when he denied he was a “follower of the Communist line.” Lattimore, 127 F.Supp. at 406. The court dismissed the indictment, holding that the phrase was too vague to support a conviction. The court stated:
This count, even with its apparent definition, is an open invitation to the jury to substitute, by conjecture, their understanding of the phrase for that of the defendant____ To ask twelve jurors to agree and then decide that the definition of the Communist line found in the indictment is the definition that defendant had in mind and denied believing in, is to ask the jury to aspire to levels of insight to which the ordinary person is incapable, and upon which speculation no criminal indictment should hinge.
Id. at 410. We conclude that the questions at issue in this case, like the phrase in
Here, Manapat was attempting to obtain a private, non-commercial Airman Medical Certificate. The application form, which was filled out at the doctor's office, included a “Medical History.” Within the medical history, the form asked for information about twenty-four “Conditions.” The first twenty-one of the “conditions” were medical in nature. Questions twenty-two and twenty-three asked about convictions. The twenty-fourth was again medical in nature. We cannot accept the government’s argument that a reasonable applicant would not be confused by this configuration of questions. It is conceivable that an applicant might believe that the form was asking for convictions somehow related to medical conditions.
Although the single statements “Record of traffic convictions,” or “Record of other convictions” may not be ambiguous standing alone, they become quite confusing when buried in a list headed “Medical History” and purportedly concerned with medical conditions. Several courts have stated that “[a] defense to a charge of perjury may not be established by isolating a statement from context, giving it in this manner a meaning entirely different from that which it has when the testimony is considered as a whole.” United States v. Bonacorsa, 528 F.2d 1218, 1221 (2d Cir.1976). See also United States v. Yasak, 884 F.2d 996, 1002 (7th Cir.1989) (questioning becomes clearer when looked at in totality). This principle applies equally to prosecutions as well as to defenses. In order to successfully prosecute an indictment for making a false statement, the government must not remove questions from the context in which their answers were given in an attempt to prove their clarity.
Members of our society are often asked to fill out standardized forms containing large numbers of general background questions. Such forms, usually hastily completed in waiting rooms, rarely require critical information that, if inaccurate, could result in criminal prosecution. If these forms do require such critical information, unwary citizens should be able to expect that important questions will not be hidden in laundry lists of unrelated topics. Unlike other crimes, the crime of making a false statement is unique in that there is no separately demonstrable actus reus. The actus reus and the mens rea unite into a single inquiry: Did the defendant know the statement was false when made? See Cook, 497 F.2d at 763. When the question that led to the allegedly false response is fundamentally ambiguous, we cannot allow juries to criminally convict a defendant based on their guess as to what the defendant was thinking at the time the response was made.
III. Conclusion
In accordance with the above discussion, the decision of the district court is AFFIRMED.
INFORMATION FOR APPLICANT
DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION
Application For Airman Medical Certificate Or Airman Medical And Student Püot Certificate — Privacy Act
The information on the attached FAA Form 8500-8, Application For Airman Medical Certificate Or Airman Medical And Student Pilot Certificate is solicited under the authority of the Federal Aviation Act of 1958, as amended, and the Federal Aviation Regulations, Part 67, Medical Standards and Certification.
Except for your Social Security Number (SSN), submission of this information is mandatory and incomplete submission will result in delay of further consideration or denial of your application for an airman medical certificate or airman medical and student pilot certificate. Other than your SSN, the purpose of the information is to determine whether you meet Federal Aviation Administration medical requirements to hold an airman medical certificate or airman medical and student pilot certificate. The information will also be used to provide data for the FAA’s Automated Medical Certification Data Base and Automated Comprehensive Airman Information System, to depict airman population patterns and to update certification procedures and medical standards. For air traffic control specialists employed by the Federal Government, the information requested will be used as a basis for determining medical eligibility for initial and continuing employment.
Submission of an SSN is not required by law and is voluntary. Your refusal to furnish your number will not result in the denial of any right, benefit or privilege provided by law. Your SSN is solicited to assist in performing the agency’s functions under the Federal Aviation Act of 1958, as amended, and if supplied, it will be used by the FAA to associate all information in agency files relating to you. If you refuse to supply an SSN, a substitute number or other identifier will be assigned as required.
APPLICANT TEAR OFF THIS SHEET BEFORE COMPLETING APPLICATION FORM
FAA Form 8500-8 tto-75)
SUPERSEDES FAA FORM 8500-22
[[Image here]]
[[Image here]]
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent the decisions of the former Fifth Circuit issued before October 1, 1981.
. We note that a large number of medical conditions can cause black-outs or other losses of bodily control. It is conceivable that an applicant could believe that the questionnaire was referring to convictions that resulted from this type of medical condition. This is especially likely when the question immediately following the two questions about convictions was "Other illnesses.”
. The ambiguity of the form seems even more evident in light of the government’s own doubts about the clarity of the form. The district court took judicial notice of a United States Depart-merit of Transportation internal memorandum stating that the form should be changed.
. Although the dissent concludes that the government should have an opportunity to present its case to a jury, we disagree because of the record in this case. The record shows that the defendant filed a written motion to dismiss on November 2, 1988, arguing, among other things, that the form was inherently ambiguous. The defendant also moved that the motion be orally argued. The government filed a written response to the motion for oral argument on November 15, 1988 stating that oral argument
. All pending motions are denied.
Dissenting Opinion
dissenting:
I dissent. Some people completing the form in question could be confused by the configuration of the questions, but it is not “entirely unreasonable to expect that the defendant understood the question posed.” See United States v. Slawik, 548 F.2d 75, 86 (3d Cir.1977). Phrasing the test as other courts have, the questions have a meaning about which people of ordinary intellect can agree. See United States v. Lighte, 782 F.2d 367, 374 (2d Cir.1986). The questions are not, therefore, fundamentally ambiguous.
The defendant in this case makes a purely facial, attack on this form. Her motion to dismiss, filed under Fed.R.Crim.P. 12(b), does not allege that she was confused either by the questions or by the configuration of the questions; instead, she alleges that these questions on this form are so inherently ambiguous that false answers to the questions cannot support a criminal conviction. In such a posture, the majority’s observation in footnote 4 — that the government had proffered no evidence on the knowing and willful nature of the defendant’s answers — is irrelevant.
To conclude, because I believe that this form is not fundamentally ambiguous, I would hold that a facial challenge to it cannot succeed. I would therefore allow the government to attempt to prove that
Manapat knowingly and willfully made false statements on the form.
. Rule 12(b) motions are limited to defenses or objections "capable of determination without the trial of the general issue” (emphasis added). I should observe, in fairness to the district court, that the district court did not ask the government to proffer what its evidence at trial would be.