F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                APR 21 1999
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 98-7087
 OBDELL FRANKLIN,                                       (D.C. No. 97-CR-57-B)
                                                             (E.D. Okla.)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**


       A jury convicted Defendant Obdell Franklin of making a false statement to the

Social Security Administration (“SSA”), in violation of 18 U.S.C. § 1001, and of

possessing a firearm after a previous felony conviction, in violation of 18 U.S.C.

§§ 922(g) and 924(a)(2). The jury acquitted Defendant of making a threatening

communication to the SSA, in violation of 18 U.S.C. § 1505. The district court

       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
sentenced Defendant to fifty-one months of imprisonment. On appeal, Defendant argues

that the district court erroneously: (1) denied his motion to suppress; and (2) instructed

the jury on materiality. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

                                       I. Background

       In June, 1996, Defendant visited the Social Security Administration (“SSA”) office

in Ardmore, Oklahoma to submit an application for widower’s benefits. While applying

for the benefits, he told an SSA employee that he had been married to Marva Kareem at

the time of her death on February 19, 1982. In fact, Defendant and Kareem had divorced

on October 12, 1981, prior to her death. Defendant was subsequently granted widower’s

benefits based on his alleged status as Kareem’s husband at the time of her death.

       In December, 1996, Scott Chafin, an agent with the Federal Bureau of

Investigation (“FBI”) investigating bomb threats made to the SSA, helped state

authorities execute a state-issued arrest warrant for Defendant at his trailer home in

Tatum, Oklahoma. Upon approaching the trailer, the officers observed Defendant and a

woman through the glass front door. After the officers knocked on the door, the woman

allowed them to enter the trailer and Defendant was arrested. Agent Chafin then

conducted a “protective sweep” of the entire trailer. During the search he found a .22

caliber rifle hanging on the wall over Defendant’s bed.



                                   II. Motion to Suppress


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       Prior to trial, Defendant filed a motion to suppress, arguing that the arresting

officers violated his Fourth Amendment rights when they conducted a search of his

trailer incident to his arrest, and that the rifle found during the search should be

suppressed. The district court, after a hearing, denied the motion. Defendant argues that

the district court erred in doing so.

       When reviewing a district court’s denial of a motion to suppress, we consider the

totality of the circumstances and view the evidence in a light most favorable to the

government. United States v. Hunnicutt, 

, 1348 (10th Cir. 1998). We

accept the district court’s factual findings unless those findings are clearly erroneous.

United States v. Villa-Chapparo, 

, 801 (10th Cir. 1997). The credibility of

witnesses, the weight to be given evidence, and the reasonable inferences drawn from the

evidence fall within the province of the district court. 

mind that the

burden is on the defendant to prove that the challenged search was illegal under the

Fourth Amendment, United States v. Ludwig, 

, 1526 (10th Cir. 1993), the

ultimate determination of reasonableness under the Fourth Amendment is a question of

law reviewable de novo. 

.

       “A ‘protective sweep’ is a quick and limited search of premises, incident to an

arrest and conducted to protect the safety of police officers.” Maryland v. Buie, 

, 327 (1990). Such a search is limited to a “cursory visual inspection of those places

in which a person might be hiding.” 

search is constitutional if the officers had


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“a reasonable belief based on specific and articulable facts which, taken together with the

rational inferences from those facts, reasonably warranted the officer in believing that the

area swept harbored an individual posing a danger to the officer or others.” 

omitted). If the search is constitutional, evidence in plain view of the officer

may be seized. See 

(citing Arizona v. Hicks, 

, 326

(1987)). Applying these principles, we conclude that the search of Defendant’s trailer

did not violate the Fourth Amendment.

       When state authorities and Agent Chafin went to Defendant’s residence on

December 11, 1996, they knew that Defendant had recently been treated for a gunshot

wound to the leg. They also knew that two of Defendant’s associates had been involved

in illegal drug activity and that Defendant may have been involved in their illegal drug

activity. One of those associates had an outstanding arrest warrant. Agent Chafin also

knew that at least one other individual besides Defendant had been involved with the

telephonic bomb threats. These facts and the inferences drawn therefrom are sufficient to

establish that the officers had a reasonable belief that someone posing a danger to them

might be in the trailer. First, the gunshot wound demonstrates that Defendant had

recently been in the company of a dangerous, armed individual. Defendant filed no

charges based on the wound. Therefore, the officers could infer that he knew his attacker

and that the individual could be on the premises. Second, the officers knew that at least

one other individual had perpetrated the bomb threats. Therefore, concern that an


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accomplice might have been on the premises also justified the protective sweep.

       The search itself was “quick and limited.” 

. As the officers

arrested Defendant, Agent Chafin searched the trailer, looking only in places large

enough to conceal a person. The search lasted less than two minutes. Under these

circumstances, we conclude that Agent Chafin properly conducted a protective sweep of

the trailer in order to ensure his safety and the safety of the other officers. See 

permitted to take reasonable steps to ensure their safety after, and

while making, the arrest”). Such conduct does not constitute an unreasonable search

under the Fourth Amendment. As a result, the district court properly denied the motion

to suppress the .22 caliber rifle found hanging over Defendant’s bed during the protective

sweep. See United States v. Flores, 

, 1278 (10th Cir. 1998) (police officers

conducting a proper protective sweep of a dwelling may seize evidence in plain view).

                                     III. Jury Instruction

       Defendant next argues that the elements of the offense instruction given for the 18

U.S.C. § 1001 violation failed to properly instruct the jury as to materiality. Defendant

did not object to this instruction at trial. Therefore, our review is for plain error. Under

this standard, Defendant must show: (1) an “error,” (2) that is “plain,” which means

“clear” or “obvious” under current law, and (3) that “affect[s] substantial rights.”

Johnson v. United States, 

, 1549 (1997) (quoting United States v. Olano,

, 732 (1993)). If these three requirements are met, then we may exercise


                                               5
discretion to correct the error if it “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” 

(internal quotations omitted).

       When reviewing jury instructions for error, we view them as a whole “to determine

whether the jury may have been misled, upholding the judgment in the absence of

substantial doubt that the jury was fairly guided.” United States v. Wiktor, 

,

817 (10th Cir. 1998) (internal quotations omitted).

       In this case, the district court gave the following elements of the offense

instruction:

       In order to sustain its burden of proof for the crime charged in Count One of the
       Indictment, the Government must prove the following four (4) essential elements
       beyond a reasonable doubt:

              One: The Defendant knowingly made or used a false writing or document
       containing a false, fictitious, or fraudulent statement as detailed in the Indictment;

               Two: In so doing, the Defendant acted willfully;

               Three: The writing or document was material; and

               Four: The matter was within the jurisdiction of the United States.

       This instruction comports with the requirements set forth by the Supreme Court in

United States v. Gaudin, 

(1995). In Gaudin, the Court held that any

question of materiality under 18 U.S.C. § 1001 must be submitted to the jury. 

In this case, the trial judge properly instructed the jury that they must find that the false

writing or document was material in order to find Defendant guilty of violating § 1001.

Defendant argues that this was insufficient, however, and that a definition of materiality

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was required.

       Gaudin provides a legal definition of materiality,1 and states that in determining

whether a statement is material, the jury must apply this legal standard to the facts of the

case. See 

. From this we may infer that in order for a jury to

properly determine whether a statement is material, they must be instructed on the legal

standard of materiality. See United States v. Proctor, 

at * (10th Cir.

Nov. 23, 1998) (unpublished) (while the judge must properly instruct the jury on the legal

definition of materiality, only the jury can decide whether the facts meet that legal

standard); see also Farmland Indus. v. Morrison-Quirk Grain, 

, 1343 (8th

Cir. 1993) (“when technical legal usage gives ordinary words a specific definition which

is distinct from the ordinary meaning of those words, a court should explain those terms

to the jury”); see also United States v. Lemire, 

, 1340 (D.C. Cir. 1983)

(“one can hardly expect lay jurors to recognize nice legal concepts embedded in the

definition of materiality”). Thus, we conclude that the district court erred by not

providing the jury with the legal definition of materiality.

       We need not address whether the error was plain or affected Defendant’s

substantial rights, however, because Defendant has failed to convince us that the court’s

failure to define materiality seriously affected the “fairness, integrity, or public reputation


       1
        The Supreme Court in Gaudin defined a material statement as having “a natural
tendency to influence, or [be] capable of influencing, the decision of the decisionmaking
body to which it is 

.

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of judicial proceedings.” United States v. Schleibaum, 

, 949 (10th Cir.

1997) (en banc). At Defendant’s trial, the United States presented unrebutted evidence

that Defendant would not have been eligible for SSA widower’s benefits absent his false

statements to the SSA. Thus, it is clear in this case that Defendant’s statement to the

SSA regarding his marital status at the time of his ex-wife’s death not only had a “natural

tendency to influence,” but did in fact influence the agency’s decision to grant him

benefits. 

. In light of this “overwhelming” evidence of

materiality, the district court did not commit reversible error by failing to define

materiality. See 

; see also United States v. Blasini-Lluberas,

-- F.3d –, 

at * 6 (1st Cir. Jan. 25, 1999) (no plain error for failure to

define materiality).

       AFFIRMED.2

                                                   Entered for the Court,



                                                   Bobby R. Baldock
                                                   Circuit Judge




      Appellant’s pro se motion “Concerning Brief filed by Attorney McCormick,” is
       2

DENIED.

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