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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-8084
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO PUENTE, JR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
(January 21, 1993)
Before KING, JOHNSON, and DUHÉ, Circuit Judges.
JOHNSON, Circuit Judge:
Following a bench trial, Roberto Puente, Jr. was convicted
of making a false statement to a government agency in violation
of 18 U.S.C. § 1001. Puente raises two arguments on appeal.
Puente argues first that the government did not carry its burden
of proving the elements of a § 1001 violation, and second that
his conduct fell within the "exculpatory no" exception to § 1001.
Finding no error, this Court affirms the judgment of the district
court.
I. Facts and Procedural History
Puente and his father were two of the principal officers of

Eagle Contractors, Inc. In their capacity as company officers,
they submitted a bid on the renovation of a housing project in
Eagle Pass, Texas. The project was partially administered and
funded by the U.S. Department of Housing and Urban Development
(HUD). The bidding process required that the parties fill out a
"Prior Participation Certification" form documenting their prior
involvement with federal building projects. By signing this
form, the parties also certified that they had never been
convicted of a felony. Puente and his father both signed the
form despite the fact that each had a previous felony conviction.
At a public board meeting held for the purpose of
recommending acceptance of a bid, John Melton, who was in charge
of the project for HUD, recommended that Eagle Contractors be
awarded the project. Melton was then informed of the Puentes'
felony convictions by another board member. Melton later
investigated this allegation and obtained documentation
confirming that both Puente and his father had previously been
convicted of a felony. However, there is no HUD rule that
prohibits convicted felons from being awarded government
contracts, and Melton continued to recommend that Eagle
Contractors be awarded the contract.
Though Melton still favored Eagle Construction, he provided
the information concerning the Puentes' misrepresentations to the
legal counsel for HUD. After a review of the documents submitted
by the Puentes, HUD officials determined that Puente and his
father had actually signed a reduced copy of the previous
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participation form that had been provided in the project manual.1
This form was very difficult to read, and HUD officials
recognized that Puente and his father might have misunderstood
the certification requirements. Melton was instructed to give
the Puentes a chance to sign the full-size form at a
preconstruction meeting. Without mentioning his investigations
or specifically pointing out the certification requirement,
Melton asked the Puentes if they had read the form and were
willing to sign. After they signed the form, HUD officials
rejected their bid and awarded the project to the number two
bidder.
Puente and his father were subsequently charged with
violating 18 U.S.C. § 1001 which makes it a crime to knowingly
and willfully misrepresent a material fact in a matter within the
jurisdiction of a department or agency of the United States.
Following a bench trial, Puente was convicted, and his father was
acquitted. Puente now appeals.
II. Discussion
A. Sufficiency of the Evidence
A violation of 18 U.S.C. § 1001 requires five elements: "(1)
a statement, that is (2) false (3) and material, (4) made with
the requisite specific intent, [and] (5) within the purview of
government agency jurisdiction." United States v. Lichenstein,
1 The actual HUD form measures 11 x 14 inches. The form
included in the project manual had been reduced to 8.5 x 11
inches.
3

610 F.2d 1272, 1276 (5th Cir.), cert. denied, 447 U.S. 907
(1980). Puente argues that the prosecution did not satisfy its
burden of proof for two of these elements--specifically
materiality and intent.
In reviewing the sufficiency of evidence for a bench trial,
this Court applies a substantial evidence standard. United
States v. Jennings, 726 F.2d 189, 190 (5th Cir. 1984). The
question before this Court is whether, when viewing the evidence
in the light most favorable to the government, the evidence is
sufficient to justify the trial judge, as trier of the facts, in
concluding beyond a reasonable doubt that the defendant was
guilty. United States v. Richardson, 848 F.2d 509, 511 (5th Cir.
1988).
1. Materiality
A material statement is one that has "a natural tendency to
influence, or [one that is] capable of affecting or influencing,
a government function." United States v. Swaim, 757 F.2d 1530,
1534 (5th Cir.), cert. denied, 474 U.S. 825 (1985). Actual
influence or reliance by a government agency is not required.
The statement may still be material "even if it is ignored or
never read by the agency receiving the misstatement." Id.
(quoting United States v. Diaz, 690 F.2d 1352, 1358 (11th Cir.
1982)).
Puente argues that his certification was not material
because a bidder can still be awarded a contract even if he has
been convicted of a felony. Previous case law makes it clear,
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however, that the standard for a § 1001 violation is not whether
the false statement actually influenced a government decision or
even whether it probably influenced the decision; the standard is
whether the misrepresentation was capable of influencing the
agency decision. In this case, the stated purpose of the
Previous Participation Certification is to allow HUD "to
determine if [the bidder] meet[s] the standards established to
ensure that all principal participants in HUD projects will honor
their legal, financial and contractual obligations and are
acceptable risks from the underwriting standpoint of an insurer,
lender or government agency." By signing the Previous
Participation Certificate, Puente provided HUD with information
in a number of areas that could be relevant to any agency
decision on whether to approve a bidder's participation in a
government project. In addition to certifying that he had never
been convicted of a felony, Puente also certified that no
mortgage on any of his previous projects had ever been in
default; that there were no unresolved findings raised by
government audits or investigations of his previous projects;
that he had not been suspended or disbarred from doing business
with any government agency; and that he had never defaulted on an
obligation covered by a surety or performance bond. While it may
be true that Puente would have been awarded the contract even if
he had answered truthfully, his misrepresentation deprived HUD of
the opportunity to determine, based upon all relevant
information, which bidder was best qualified to complete the job.
5

Because HUD officials could have viewed the bid differently if
Puente had answered correctly, the district court did not err in
holding that Puente's misrepresentation was "capable of affecting
or influencing" the agency decision.
2. Intent
A conviction under § 1001 requires proof that a defendant
had the specific intent to make a false or fraudulent statement
"deliberately or at least with reckless disregard of the truth
and with the purpose to avoid learning the truth." United States
v. Tamargo, 637 F.2d 346, 351 (5th Cir.), cert. denied, 454 U.S.
824 (1981). In this case, Puente claims that he never read the
HUD form, and the prosecution introduced no evidence that showed
that Puente knew what he was signing. Instead, the district
court concluded that, by signing the form without reading it,
Puente acted with "a reckless disregard of the truth and with the
purpose to avoid learning the truth."
This Court finds no error in the district court's judgment.
"Reckless indifference" has been held sufficient to satisfy §
1001's scienter requirement so that a defendant who deliberately
avoids learning the truth cannot circumvent criminal sanctions.
See United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir.
1979). Likewise, a defendant who deliberately avoids reading the
form he is signing cannot avoid criminal sanctions for any false
statements contained therein. Any other holding would write §
1001 completely out of existence.
6

B. The "Exculpatory No" Doctrine
Puente's final argument is that his false statement falls
within the "exculpatory no" exception to liability under § 1001.
The "exculpatory no" doctrine exempts "mere negative responses"
to questions posed by investigating agents from the reach of §
1001. Paternostro v. United States, 311 F.2d 298, 305 (5th Cir.
1962); see also United States v. Berisha, 925 F.2d 791, 796 (5th
Cir. 1991). The doctrine originates, at least in part, from a
"latent distaste for an application of [§ 1001] that is
uncomfortably close to the Fifth Amendment." United States v.
Lambert, 501 F.2d 943, 946 n.4 (5th Cir. 1974) (en banc). Puente
argues that his signature on the full-size form was exculpatory
because he had already signed the reduced form; if he had refused
to sign the second form he would have incriminated himself by
taking an inconsistent position.
Whatever the merits of this argument, Puente did not raise
it before the district court. When reviewing a theory raised for
the first time on appeal, this Court applies a "plain error"
standard and only reverses errors of a nature that they would
result in a miscarriage of justice if not remedied. United
States v. Young, 470 U.S. 1, 15-16 (1985); United States v.
Contreras, 950 F.2d 232, 239 (5th Cir. 1991), cert. denied, 112
S.Ct. 2276 (1992). Puente's "exculpatory no" argument simply
does not rise to this level.
III. Conclusion
For the reasons stated, this Court holds that the evidence
7

was sufficient to sustain Puente's conviction for a violation of
18 U.S.C. § 1001. Also, we hold that it was not plain error for
the district court to acquit Puente under the exculpatory no
doctrine. Accordingly, the judgment of the district court is
affirmed.
8