United States v. Pamela M. Manapat, 928 F.2d 1097, 11th Cir. (1991)

928 F.
2d 1097
UNITED STATES of America, Plaintiff-Appellant,

v.
Pamela M. MANAPAT, Defendant-Appellee.
No. 88-4029.
United States Court of Appeals,

Eleventh Circuit.
April 18, 1991.
Roberta M. Klosiewicz, Asst. U.S. Atty., Tampa, Fla., for plaintiffappellant.

Matthew H. Perry, Asst. Federal Public Defender, Tampa, Fla., for
defendant-appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before KRAVITCH and COX, Circuit Judges, and RONEY, Senior
Circuit Judge.
KRAVITCH, Circuit Judge:
Appellee Pamela M. Manapat was indicted for violating 18 U.S.C. Sec. 1001,
which prohibits "knowingly and willfully" making false statements to any
department or agency of the United States.
I. Background
2
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 twentyfour item list started with "Frequent or severe headaches," "Dizziness or
fainting spells," "Unconsciousness for any reason," and proceeded to list many
other medical conditions. The twenty-second and twenty-third items listed,
however, were "Record of traffic convictions," and "Record of other
convictions." The final item was "Other illnesses." See Appendix. The district
court originally denied the motion to dismiss, but then reconsidered the motion
sua sponte. After making the following statement from the bench, the trial
judge dismissed the indictment:
I4 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
5
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. Sec. 1001. Several other federal statutes, however, prohibit making false
statements in other contexts. See, e.g., 18 U.S.C. Sec. 1014 (false statements
intended to influence a financial institution); 18 U.S.C. Sec. 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:
I8 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 perjurious responses.
9
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).
10
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);1 see also United
States v. Thompson, 637 F.2d 267, 270 (5th Cir.1981). Both parties agree,
however, that "[w]hen a line of questioning is so vague as to be 'fundamentally
ambiguous,' the answers associated with the questions posed may be
insufficient as a matter of law to support [a] perjury conviction." United States
v. Lighte, 782 F.2d 367 (2d Cir.1986). See also United States v. Bonacorsa,
528 F.2d 1218, 1221 (2d Cir.1976) ("Absent fundamental ambiguity or
impreciseness in the questioning, the meaning and truthfulness of appellant's
answer was for the jury."); United States v. Yasak, 884 F.2d 996, 1003 (7th
Cir.1989) (fundamental ambiguity requires court to take question away from
jury); United States v. Ryan, 828 F.2d 1010, 1015 (3d Cir.1987) (same); United
States v. Martellano, 675 F.2d 940, 943 (7th Cir.1982) (same). Because the
district court dismissed the indictment, rather than allowing the issue to go to
trial, we must determine whether the application form was so fundamentally
ambiguous as to preclude a conviction as a matter of law.
11
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 "[w]hile 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.
12
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.
13
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.
14
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.
15
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:
16 count, even with its apparent definition, is an open invitation to the jury to
This
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.
17
Id. at 410. We conclude that the questions at issue in this case, like the phrase
in Lattimore, are too ambiguous to allow a jury to speculate as to the
defendant's intentions at the time she filled out the application form.
18
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 twentythree 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.2 Or, an applicant could fail to understand the
importance of such questions on a form concerning medical conditions and
simply not give proper thought before answering. Or, more likely, an applicant
in generally good health could routinely check off the many items on the
standardized form without reading them carefully, resulting in an inaccurate
response.3
19
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.
20
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.4
21
Having concluded that the application form was ambiguous as a matter of law,
it is important to make a few further observations. First, our holding in no way
questions the authority of the government to seek information necessary to
determine the fitness of those who desire to fly in our nation's skies.
Furthermore, our holding does not preclude the government from refusing to
grant a certificate, or from revoking a certificate already granted, if the
applicant falsely responds to the government's requests for information. Finally,
we do not mean to suggest that careless responses on standardized forms can
absolve a citizen of the obligation to fill out such forms truthfully. We merely
hold that the government may not provide someone with a confusing and
ambiguous form and then prosecute when the answers are inaccurate. The
government could avoid this problem by providing a separate form for
convictions, or by redesigning the Airman Medical Certificate application form
so that it clearly shows that critical non-medical information is being requested
of the applicant.
III. Conclusion
22
In accordance with the above discussion, the decision of the district court is
AFFIRMED.5
23
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

VIEWABLE
24

VIEWABLE
25

VIEWABLECOX, Circuit Judge, dissenting:
26
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.
27
The defendant Manapat is alleged to have knowingly and willfully answered

that she had no record of convictions when in truth she had been convicted of
perjury, conspiracy to distribute marijuana and possession of cocaine. This
court has held, as the majority notes, 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).
These questions are "arguably ambiguous" only because of where they are
placed on the form. Notwithstanding their placement, however, this form
appears to be far less confusing than, for example, a federal income tax form, a
financial statement in support of an application for a loan from a federal
agency, and a variety of other federal forms that have been the basis of 18
U.S.C. Sec. 1001 prosecutions sanctioned by the courts.
28
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.1 Because the defendant did not allege that
she was confused, the government did not need to proffer evidence that she was
not confused (in other words, that her answers were knowing and willful).
29
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.
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."
3
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 Department 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 was not necessary. The government also responded to
the motion to dismiss. In its response, the government made no allegations that
there was any additional evidence surrounding the circumstances at the time
the form was completed. In light of the fact that the government made no
attempt to show that there was any evidence other than the form itself and the
false answers to prove the knowing and willful nature of the defendant's
actions, we see no reason to send this case to a jury
All pending motions are denied
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

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928 F.

UNITED STATES of America, Plaintiff-Appellant,

United States Court of Appeals,

Roberta M. Klosiewicz, Asst. U.S. Atty., Tampa, Fla., for plaintiffappellant.

mind to seek to ascertain which of several plausible meanings he attributed to the

The practice of dismissing perjury indictments based on fundamentally

In Lighte, the court overturned a perjury conviction based on the fundamental

We find the reasoning in Lattimore useful in addressing Manapat's argument. In

Here, Manapat was attempting to obtain a private, non-commercial Airman

Although the single statements "Record of traffic convictions," or "Record of

crimes, the crime of making a false statement is unique in that there is no

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

I dissent. Some people completing the form in question could be confused by

The defendant Manapat is alleged to have knowingly and willfully answered

To conclude, because I believe that this form is not fundamentally ambiguous, I

We note that a large number of medical conditions can cause black-outs or

All pending motions are denied

Rule 12(b) motions are limited to defenses or objections "capable of

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