In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1215

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

C ORY L. B RANDT,
                                              Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
            No. 07 CR 57—Robert L. Miller, Jr., Chief Judge.


   A RGUED S EPTEMBER 15, 2008—D ECIDED O CTOBER 27, 2008




 Before K ANNE, E VANS, and W ILLIAMS, Circuit Judges.
   K ANNE, Circuit Judge. Defendant Cory Lee Brandt and
a co-defendant, Larry Adam Beck, were indicted on
June 13, 2007, for crimes related to the sale of an AK-47
rifle on August 18, 2006. Beck was charged under
18 U.S.C. § 922(g)(1) with being a felon in possession of a
firearm and ammunition, and Brandt was charged under
18 U.S.C. § 1001(a)(2) with making a false statement to
federal agents. Beck pled guilty, and Brandt’s trial com-
2                                               No. 08-1215

menced on November 5, 2007. During trial, Brandt
moved for a judgment of acquittal, arguing that the
government had not proven all elements of the crime
beyond a reasonable doubt. The district court denied the
motion, which Brandt did not renew. During the jury
instruction conference, Brandt requested an instruction
based on the “exculpatory no” doctrine. The district court
denied the request, citing Brogan v. United States, 

(1998). Brandt appeals the district court’s denial of
his motion for a judgment of acquittal and its refusal to
grant the requested instruction. We affirm.


                     I. B ACKGROUND
  On August 18, 2006, Brandt and his long-time friend Beck
were drinking at Roxie’s Manhattan Bar in Mishawaka,
Indiana. Beck, a convicted felon, was interested in selling
his AK-47 rifle, and asked if Brandt knew of any potential
buyers. Brandt stated that he was unsure, but he agreed
to make some phone calls on Beck’s behalf. Brandt con-
tacted Robert Smith, who expressed an interest in pur-
chasing the rifle, and Brandt informed Beck that he had
found a potential buyer. After Brandt arranged a meeting
with Smith, Brandt drove Beck home to retrieve the gun.
They then met Smith, sold the gun, and returned to the
bar to continue drinking. Brandt testified that he took the
money and handed the gun to Smith, but that he
believed at the time that the transaction was legal.
  That night, the Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF”) received a tip from local law
enforcement about the potential federal firearms viola-
No. 08-1215                                                3

tion. Agent Lucas Battani and Special Agent Craig Ed-
wards began their investigation by interviewing Tara
Lemon, Beck’s wife. They also interviewed Beck, who by
then was in jail for an unrelated altercation, to determine
the gun’s whereabouts. In the interview, Beck told the
agents that he did not know the identity of the buyer but
that Brandt, who had brokered the sale, would have this
information. Beck testified at trial that after his interview
with the ATF agents, Brandt visited him in jail and told
him not to say anything about the gun sale.
  After interviewing Beck, ATF agents interviewed
Asheley James and Brad Sanders, who were present at
the bar when Beck and Brandt discussed the sale. Both
James and Sanders recounted the same version of events
as Beck. Sanders further stated that he had informed
Brandt that the ATF was trying to locate him.
  On August 24, Agent Battani called a telephone
number he believed to be Brandt’s. A woman who identi-
fied herself as Cynthia Finn answered the phone and
confirmed that Brandt was home. Battani and Special
Agent Edwards then went to Brandt’s home. Brandt
agreed to talk to the agents outside. The agents did not
record the interview because, in their view, the use of
recording devices often intimidates witnesses. Battani did,
however, take notes of the interview, which he and Ed-
wards later used to compile their report.
  The ATF agents recounted a significantly different
version of the ensuing discussion than that of Brandt and
Finn. According to the agents’ version of events, Battani
informed Brandt that they were investigating the sale of a
4                                              No. 08-1215

gun. Battani asked if Brandt and Beck had left the bar on
August 18, to which Brandt responded, “No. We had been
there all night.” Battani then stressed that they were
asking about his involvement in the gun sale. Brandt
replied that he didn’t know what they were talking about.
Special Agent Edwards explained that lying to a federal
agent was punishable under federal law, and that Brandt
was not a suspect but a witness. According to the agents,
Brandt replied, “There was no gun.”
  Agent Battani then recounted to Brandt the agents’
discussion with Beck. Brandt retorted that he knew they
were lying because he had visited Beck, and Beck had said
nothing about speaking with the authorities. The agents
explained that they had talked to Beck, that Brandt had
not done anything wrong, and that Brandt should tell
the truth. According to the agents, Brandt repeated, “There
was no gun.” Special Agent Edwards explained for a
second time that lying to federal agents was a crime and
told Brandt that if he told the truth, they would leave.
Brandt did not respond.
  According to the agents, Battani then asked Brandt if
the statement he wished to make was that he and Beck
never left the bar, that they had never sold a gun that
evening, and that he had no knowledge of a gun. Brandt
answered, “Yes, that’s what I’m saying.” Brandt then
asked if they were done. The agents maintain that as
Brandt walked back into the house he said, “[Beck] didn’t
even know the guy.”
  Brandt’s recollection of the interview varies con-
siderably from that of Agent Battani and Special Agent
No. 08-1215                                              5

Edwards. According to Brandt, Battani began by explain-
ing the details of the sale. When Battani reached the
point where he described Beck and Brandt’s trip to Beck’s
house, Brandt said, “I don’t know what you’re talking
about.” According to Brandt, this statement was an
attempt to end the conversation. Brandt testified that
the agents grew very upset and asked him if he knew
that the punishment for obstructing a federal investiga-
tion was up to one year in jail. Brandt then asked if he
was under arrest. The agents told him he was not, and
Brandt returned to the apartment. Cynthia Finn, who
claims to have overheard the conversation from inside
the apartment, testified to the same version of events as
Brandt.
  According to Smith, Brandt called him on August 24
after this encounter with ATF agents and told him that
“if everyone just kept their mouth shut then . . . nobody
would get in trouble.” Brandt later admitted to
speaking with Smith on the phone but denied making
this statement.
  Because the agents were unable to obtain the buyer’s
name from Brandt, they subpoenaed Brandt’s cellular
telephone records. These records reflected a number of
calls between Brandt and Smith on the day of the sale, as
well as two telephone calls from Brandt to Smith on
August 24, the same day as the agents’ interview with
Brandt. The agents then interviewed Smith, who corrobo-
rated Beck’s version of the gun sale.
  Brandt was indicted on June 13, 2007, for making a
false statement to federal agents in violation of 18 U.S.C.
6                                                    No. 08-1215

§ 1001(a)(2). Brandt’s trial commenced on November 5,
2007. At the close of the government’s evidence, the court
requested that Brandt present his first witness and defer
all motions until the end of the day. Accordingly, after
Cynthia Finn’s testimony, Brandt moved for a judgment
of acquittal on the grounds that the government had not
proved beyond a reasonable doubt all essential elements
of the crime. The court denied the motion, which Brandt
did not renew.
  During the jury instruction conference, Brandt objected
to the court’s failure to include the following jury in-
struction, purportedly gleaned from United States v.
Rodriguez-Rios, 

(5th Cir. 1994) (en banc)1 :
    If the defendant’s statements were “mere negative
    responses to questions propounded to him by an
    investigating agent during a question and answer
    conference, not initiated by [him] . . .” under circum-
    stances indicating that the defendant was unaware
    that he was under investigation, then the Defendant’s
    statements may not be material or willful under
    18 U.S.C. § 1001 and you may find the Defendant not
    guilty.



1
  In reality, this language is nowhere to be found in the
Rodriguez-Rios opinion. Instead, it appears to come from
previous cases in the Fifth Circuit that had adopted the “excul-
patory no” doctrine. See, e.g., United States v. Abrahams, 

, 394 (5th Cir. 1979); United States v. Paternostro, 

, 305 (5th Cir. 1962). In Rodriguez-Rios, the Fifth Circuit
overruled these cases when it expressly rejected this doctrine
as a 

.
No. 08-1215                                                   7

The district court had initially denied the instruction
based on Brogan, which held that the “exculpatory no”
doctrine was not a valid defense to liability under § 1001.

. Brandt’s counsel, although he had not
read Brogan, asserted that his proposed instruction was
merely “an explanation . . . that the initial negative re-
sponse was under circumstances that would lead it to
be not material or willful under 1001.” On this basis he
argued that the instruction survived Brogan. The court
again denied Brandt’s request to include the instruction
because “it is not an accurate statement of law in light
of Brogan” and because, in any event, “there was no
refusal to speak or a simple denial.”
  The jury convicted Brandt, who was sentenced to
18 months’ imprisonment on January 16, 2008.


                        II. A NALYSIS
  Brandt raises two issues on appeal. He first argues
that the district court incorrectly denied his motion for a
judgment of acquittal. Second, he argues that the
district court erred in refusing to issue his tendered
jury instruction. We discuss each argument in turn.


A. The district court’s denial of Brandt’s motion for a judgment
   of acquittal
  The district court denied Brandt’s motion for a judg-
ment of acquittal on the grounds that there was sufficient
evidence from which a jury could find that the govern-
8                                                 No. 08-1215

ment had proved beyond a reasonable doubt each of the
required elements of § 1001. Brandt argues on appeal
that there was insufficient evidence to prove that he
willfully or knowingly lied to federal agents. Instead,
Brandt argues that he merely asserted his Fifth Amend-
ment right to end the conversation.
  A defendant challenging the sufficiency of the evidence
always bears a “heavy burden.” United States v. Jackson,

, 747 (7th Cir. 2002). In the ordinary case, “our
threshold inquiry is whether after viewing the evidence
in the light most favorable to the prosecution, any
rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” United
States v. Farris, 

, 618 (7th Cir. 2008) (quotations
omitted). But this standard applies only when the defen-
dant renews his motion at the close of all the evidence
or within seven days of the jury verdict. United States v.
Hickok, 

, 1002 (7th Cir. 1996). Although Brandt
moved for a judgment of acquittal during his defense,
he did not renew this motion, nor does he respond to the
government’s assertion that a higher standard applies.
See 

(noting that the defendant
had neither renewed his motion for a judgment of
acquittal nor responded to the government’s argument
regarding waiver). Therefore, Brandt “may obtain a
reversal only if he demonstrates a manifest miscarriage
of justice.” 

(quotations omitted); see also 

.
  Under the heightened “manifest miscarriage of justice”
standard, “reversal is warranted only if the record is
devoid of evidence pointing to guilt, or if the evidence
No. 08-1215                                                      9

on a key element was so tenuous that a conviction would
be shocking.” United States v. Squibb, 

, 671 (7th
Cir. 2008) (quotations omitted). Because there was ample
evidence to support the jury’s finding that Brandt’s
statements were knowing and willful, Brandt cannot
meet this high burden.
   In his brief, Brandt suggests that he lacked the requisite
knowledge and intent under § 1001 because he did not
know that his conduct was illegal. (Petr.’s Br. 6 (“Accord-
ing to the Defendant and his girlfriend, the government
agents never adequately warned him that his statement,
‘I don’t know what you’re talking about’, would implicate
him in a federal crime. In other words, the Defendant
never had the requisite criminal knowledge to lie to the
federal agents.”).) The Seventh Circuit has never
addressed whether “willfully” under § 1001 requires
proof that the defendant knew his conduct was a crime or
simply that he knew his statement was false. While we
note that to our knowledge, every other circuit to
discuss this issue has rejected the notion that ignorance
of the law negates willfulness under § 1001,2 we need not


2
  See United States v. Whab, 

, 161 & n.3 (2d Cir. 2004)
(“[N]othing in the language or structure of 18 U.S.C. § 1001
suggests that ‘willfully’ requires proof that a defendant knew
his conduct was a crime . . . .”); United States v. Hsia, 

, 522 (D.C. Cir. 1999) (holding that the required mens rea
for § 1001 was “that the defendant knew that the statements to
be made were false”); United States v. Daughtry, 

, 831-
32 (4th Cir. 1995) (“[A]lthough Daughtry would have us
                                                     (continued...)
10                                                  No. 08-1215

address this question today because there is sufficient
evidence to support Brandt’s conviction under even
this more demanding interpretation.
  The record contains more than enough evidence that
Brandt willfully and knowingly lied to the ATF agents.
Testimony by both agents regarding their conversation
with Brandt was detailed and specific. According to the
agents, even after repeated warnings that lying to
federal agents was a crime, Brandt continued to main-
tain that he had never left the bar, that there was no gun,
and that he was not involved in the gun sale. Furthermore,
the fact that Brandt had been warned that ATF agents
were coming to his house and that he told Beck and Smith
not to discuss the purchase with the authorities shows
that he acted willfully and with an intent to deceive the
agents. Under any interpretation of “willful,” this evidence
is by no means “so tenuous that a conviction would be
shocking.” See 

.
  Brandt contends that there are “grave concerns” regard-
ing the agents’ recollection of the interview because the
“agents failed to record the interview or make any verba-



2
  (...continued)
interpret the term ‘willfully’ in such a way that one cannot
violate § 1001 without knowing that it exists, we will not do
violence to the venerable principle that ignorance of the law
generally is no defense to a criminal charge.” (quotations
omitted)), rev’d on other grounds, 

(1995); United
States v. Rodriguez-Rios, 

, 1048 n.21 (5th Cir. 1994)
(en banc).
No. 08-1215                                                11

tim transcript of it” and because Special Agent Edwards
had no memory of his interview with Lemon, Beck’s wife.
(Petr.’s Br. 6.) Thus, Brandt maintains that the version of
events to which he and Finn testified is more credible.
Brandt made these arguments to the jury, and “[t]he jury,
in turn, was free to reject them.” United States v. Obiuwevbi,

, 1239 (7th Cir. 1992). It is not our role on
appeal to second-guess the jury’s credibility determina-
tions. United States v. Roberts, 

, 569 (7th Cir.
2008). We need only determine whether the record is
“devoid of evidence” pointing to Brandt’s guilt. See

. Because the government presented
clearly sufficient evidence that Brandt acted willfully and
knowingly, the district court’s denial of his motion for a
judgment of acquittal will be affirmed.


B. The district court’s refusal to provide the jury with an
   “exculpatory no” instruction
  Brandt tendered to the district court an instruction, set
forth earlier in this opinion, which the court referred to
as the “exculpatory no” instruction. The district court
refused to provide the jury with Brandt’s tendered instruc-
tion because it was not an accurate statement of the law
in light of Brogan. Brandt argues that the instruction
was necessary to his defense that he did not have the
requisite intent or knowledge to lie to the agents.
  We review a district court’s refusal to instruct the jury
on a theory of defense de novo. United States v. Van Allen,

, 823 (7th Cir. 2008). Because we agree that
12                                                 No. 08-1215

the defendant’s tendered instruction is not an accurate
statement of the law, we reject his argument.
  In Brogan, the Supreme Court explicitly and unequivo-
cally rejected the “exculpatory no” doctrine as a defense
to criminal liability under § 1001. 

. In
that case, federal agents asked Brogan, the defendant, if
he had ever accepted certain illegal cash payments or gifts.

Brogan replied “no,” which was a lie. 

Court upheld his conviction, holding that “the
plain language of § 1001 admits of no exception for an
‘exculpatory no’ . . . .” 

Indeed, this court has
previously recognized that after Brogan, the “exculpatory
no” doctrine is no longer good law. See United States v.
Burke, 

, 409 (7th Cir. 2005).
  Yet Brandt attempts to distinguish his case based on the
fact that the defendant in Brogan did not dispute that his
statement was made knowingly and willfully. Relying on
Justice Ginsburg’s concurrence, 3 Brandt argues that his
proffered instruction was necessary in order for the jury
to properly consider whether Brandt had sufficient
intent. This argument is entirely without merit.
  After Brogan, it is simply not accurate to say, as Brandt
has asserted, that mere negative responses “may not be
material or willful.” Indeed, the fact that the defendant


3
  Brandt purported to rely on Justice Souter’s concurrence.
(Petr.’s Br. 5, 9-10.) However, the passages his brief cites are
actually contained in the concurrence written by Justice
Ginsburg. Although neither concurrence controls our inter-
pretation of Brogan, we address his arguments.
No. 08-1215                                                13

in Brogan conceded that his response was knowing and
willful shows that even a mere negative response can be
an intentional lie. See 

. Even Justice
Ginsburg’s concurrence did not go so far as to say that a
mere denial could not be willful. She simply noted that
the mere denial of criminal responsibility is not sufficient
to prove knowledge or intent. 

(Ginsburg, J.,
concurring). In this case, the district court never
suggested that a mere denial was sufficient in the absence
of the other requirements of § 1001. Indeed, the court
instructed the jury on the meaning of the willfulness and
knowledge requirements, and the jury found that
Brandt’s statements qualified. Thus, Brandt’s argument
that the jury was unable to properly address the issues
of knowledge and intent because it was not given the
“exculpatory no” instruction is unavailing.
   Brandt also alludes to the Fifth Amendment in support
of his argument. (See Petr.’s Br. 6.) However, as the
Court noted in Brogan, “neither the text nor the spirit of the
Fifth Amendment confers a privilege to lie.” 

Even Brandt’s own recitation of the events shows that he
lied when he told the agents, “I don’t know what you’re
talking about.” This type of false statement goes beyond
the mere false denial that the Court in Brogan held that
the Fifth Amendment did not cover. See 

the “exculpatory no” doctrine provides no valid defense
to liability under § 1001, the district court properly
refused to provide Brandt’s tendered instruction.
14                                            No. 08-1215

                    III. C ONCLUSION
  We A FFIRM the district court’s denial of Brandt’s
motion for a judgment of acquittal, as well as its refusal
to instruct the jury on the “exculpatory no” defense.




                         10-27-08