# Petition — Falco v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1068

## Text

Supreme Court of the United States

October Term, 1982

MARIE FALCO,
Petitioner,
-against-
UNITED STATES OF AMERICA
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
PAUL O’DWYER KEARA M. O’DEMPSEY
99 Wall Street 275 Madison Avenue
New York, N.Y. 10005 New York, N.Y. 10016
(212) 269-3939 (212) 686-2265

Attorney of Record Of Counsel

(13211)

QUESTIONS PRESENTED

May a person accused of perjury or
other false statement offense be
convicted consonant with the Consti-
tution when the jury has rendered no
decision on an essential element of

the offense, i.e., materiality?

May a person accused of perjury or
other false statement offense be
convicted consonant with the Consti-
tution without a finding beyond a
reasonable doubt of an essential
element of the offense, i.e., materi-

ality?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES -
OPINIONS BELOW an
JURISDICTION =
CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED a
STATEMENT OF THE CASE 1

REASONS FOR GRANTING THE WRIT

I.

Virtually All the Court's

Rule 17 Criteria for Issuance
of the Writ Are Met With
Respect to the Issues Peti-
tioner Raises. 4

A. Petitioner's Case, And the
Growing Number of Cases Like
It, Present Issues Related
to Federal Principles of
Overriding Importance: A
Criminal Defendant's Right
to a Trial by Jury and Her

Cc.

iii

Page
Right to a Finding of
Guilt Beyond a Reasonable
Doubt. 5

The Circuit Courts, District
Courts and State Courts Pre-
sently Resolve the Competing
Claims Between Modern Consti-
tutional Law and the Archaic
Materiality Rule Differently. 7

1. A Conflict Exists Among the
the Federal Courts of Ap-
peals With Respect to False
Statement Offenses. 7

2. The Conflict Exists Not
Only Among the Circuit
Courts, But Between District
Courts Within the Same Cir-
cuit and Between Different
Panels of the Same Circuit. 12

3. The Massachusetts State
Court of Last Resort Has
Decided This Issue Contrary
to the Majority Rule in the
Federal Courts of Appeals. 15

A Substantial Federal Question
Exists In Part Due to the Sheer
Number of Offenses for Which
Materiality is an Essential
Element. 17

The Supreme Court Has Never
Directly Passed on the Materi-
ality Question; The Majority
Rule Rests on a 1929 Dictum
Which Cannot Be Justified
Either Logically of Consti-
tutionally. 20

iv

Page

II. Defendants in Perjury and

Other False Statement Prose-

cutions Are Denied Plenary

Jury Trials Within the Meaning

of the Constitution in the

Majority of the Federal Courts

of Appeals. 24

III. The Second Circuit Rule Con-
cerning Materiality Violates
the Winship Principle That
the Reasonable Doubt Standard
Must Be Applied to Every
Element of a Criminal Offense.

CONCLUSION

APPENDIX

TABLE OF AUTHORITIES

Cases Page
Baldwin v. New York,

399 U.S. 68 (1970) 27,30
Bloom v. Illinois,

391 U.S. 194 (1968) 29, 31,37
Jackson v. Virginia,

443 U.S. 307 (1979) 3,27
Mullaney v. Wilbur,

421 U.S. 684 (1975) 25,33
Patterson v. New York,
432 U.S. 197 (1977) 34,36
Sinclair v. United States,

279 U.S. 263 (1929) 21

In Re Winship,
397 U.S. 358 (1970) 25,33,35

Agquionics Acceptance

Corporation v. Kollar,
536 F.2d 712 (6th Cir. 1976) 22

Radiation Dynamics, Inc.
Vv. ot TF 464 F.2d

876 (2d Cir. 1972) 22

United States v. Adler,
623 F.2d 1287
(8th Cir. 1980). 14

vi

Cases Page
United States v. Bell,
F.
(5th Cir. 1980) 4

United States v. Berardi,
629 F.2d 723 (2d Cir.),
cert. denied, 449 U.S.
995 (1980) 9,24,34

United States v. Cunningham,
Cr. 458 (CLB),
(Memorandum and Order of

May 19, 1982) 15
United States v. Demopoulos,

506 F.2d 1171 (7th Cir.),

cert. denied, 420 U.S. 9

991 (1

United States v. Giacalone,
587 F.2d 5 (6th Cir. 1978),
cert. denied, 442 U.S.
940 (1979) )

United States v. Halbert,
640 F.2d 1000
(9th Cir. 1980) 8,10,19

United States v. Johnson,
F.Supp. 273 (W.D. Mo.
1968), aff'd, 410 F.2d
38 (8th Cir.), cert. denied,
396 U.S. 822 (1969). —+-9,10,13

United States v. Kehoe, 526
F.2d 65 (ist Cir. 1976) 9

vii

Cases

United States v. Kostoff, 585
F.2d 378 (9th Cir. 1978)

United States v. Lichtenstein,
610 F.2 272 th Cir.
1980)

United States v. Paolicelli,
505 F.2d 971 (4th Cir.
1974)

United States v. Phillips, 540
F.2d 319 (8th Cir.), cert.

denied, 429 U.S. 1000 (1976)

United States v. Raineri, 670
F.2d 702 (7th Cir. 1982)

United States v. Schaffer,
600 F.2d 1120 (5th Cir.1979)

United States v. Talkington,
598 F.2d 415 (9th Cir. 1978)

United States v. Valdez, 594
F.2d 725 (9th Cir. 1979)

United States v. Voorhees, 593
F.2d 346 (8th Cir. 1979)

Commonwealth v. McDuffee, 398
N.E. Mass. 1979)

10

19

10

20

8,10

9,10,13

16,22

Cases

Peo

viii

le v. Clemente, 285 App. Div.
258, 136 N.¥.S.2d 202 (lst
1954), aff'd, 309 N.Y.

890, 131 N.E.2d 294 (1955).

Dept.

Statutes

15
18
18
18
18
18
18
18
26

U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.

A AAA AGBDAA A

783 (b)
287

922 (a) (6)
1001

1014

1341

1621
1623

7206 (1)

22

22
20
18
19,20
19
19
18
5,6,17
18

ix

OPINIONS BELOW

The Order and opinion of the United
States Court of Appeals for the Second
Circuit is reprinted in the Appendix,
infra, at la.

The United States District Court for
the Southern District of New York entered

no written order or opinion.

JURISDICTION

The judgment of the Court of Appeals
for the Second Circuit, dated August 10,
1982, was entered on that date.

The Court of Appeals denied
petitioner's request for a rehearing by
order dated September 27, 1982.

The Court Of Appeals granted
petitioner's motion for a stay of the
mandate pending application for writ of
certiorari by order dated October 12,
1982. The Court further granted
petitioner a continuance of the stay
until December 6, 1982, by order dated
November 16, 1982.

Petitioner invokes the jurisdiction
of the Supreme Court under 28 U.S.C.

§ 1254 (1).

xi

CONSTITUTIONAL PROVISIONS
AND STATUTE INVOLVED

A. Constitutional Provisions
Article III, §2, in relevant part:
The Trial of all Crimes, except in

Cases of Impeachment, shall be by Jury;***.

Amendment V, in relevant part:
No person shall *** be deprived of
life, liberty or property, without due

process of law;....

Amendment VI, in relevant part:
In all criminal prosecutions, the
accused shall enjoy the right to a speedy

and public trial, by an impartial jury***.

xii

Statute

§ 1623. False declarations before grand
jury or court

(a) Whoever under oath (or in any
declaration, certificate, verification,
or statement under penalty of perjury as
permitted under section 1746 of title 28,
United States Code) in any proceeding
before or ancillary to any court or grand
jury of the United States knowingly makes
any false material declaration or makes
or uses any other information, including
any book, paper, document, record, record-
ing, or other material, knowing the same
to contain any false material declaration,
shall be fined not more than $10,000.00
or imprisoned not more than five years,
or both.

(b) This section is applicable whether
the conduct occurred within or without
the United States.

(c) Any indictment or information for
violation of this section alleging that,
in any proceedings before or ancillary to
any court or grand jury of the United
States, the defendant under oath has
knowingly made two or more declarations,
which are inconsistent to the degree that
one of them is necessarily false, need
not specify which declaration is false if-

(1) each declaration was material
to the point in question, and

(2) each declaration was made
within the period of the statute
of limitations for the offense
charged under this section.

xiii

In any prosecution under this section,
the falsity of a declaration set forth in
the indictment or information shall be
established sufficient for conviction by
proof that the defendant while under oath
made irreconcilably contradictory declar-
ations material to the point in question
in any proceeding before or ancillary to
any court or grand jury. It shall be a
defense to an indictment or information
made pursuant to the first sentence of
this subsection that the defendant at the
time he made each declaration believed
the declaration was true.

(ad) Where, in the same continuous court
or grand jury proceeding in which a
declaration is made, the person making
the declaration admits such declaration
to be false, such admission shall bar
prosecution under this section if, at the
time the admission is made, the declaration
has not substantially affected the pro-
ceeding, or it has not become manifest
that such falsity has been or will be
exposed.

(e) Proof beyond a reasonable doubt under
this section is sufficient for conviction.
It shall not be necessary that such proof
be made by any particular number of wit-
nesses or by documentary or other type
of evidence.

Added Pub. L. 91-452, Title IV,
§ 40l(a), Oct. 15, 1970, 84 Stat. 932,
and amended Pub. L. 94-550, § 6, Oct. 18,
1976, 90 Stat. 2535.

STATEMENT OF THE CASE

Petitioner is a 35-year-old woman
who was indicted and tried on several
charges centering around a false document
and allegedly perjurious testimony con-
cerning that document given by petitioner
at a trial in 1981.

More specifically, petitioner was
indicted in June 1981 on two counts of
making false declarations before a court
(18 U.S.C. § 1623), one count of using a
false document before a court (18 U.S.C.
§ 1623), and one count of conspiracy (18
U.S.C. § 371). Upon her arraignment,
Miss Falco entered a plea of not guilty.
She was tried before Judge Vincent L.
Broderick, of the Southern District of
New York, and a jury in December 1981.
The jury returned a verdict of not guilty
on the conspiracy count and the first

count of making false declarations before

court, but a verdict of guilty on the
second false declaration count and the
false document charge.

In March 1982, petitioner was
sentenced to three months in prison and
three years probation, with a special
requirement of community service to be
rendered during the first two years of
the probationary term.

Applying the existing Second Circuit
rule, the trial court declined to permit
petitioner to present either evidence or
argument to the jury as to one element of
the § 1623 offenses, i.e., the materiality
of the false document and the false
declarations in question. Petitioner's
argument that neither the document nor
the testimony were material within the
meaning of § 1623 were substantial, and
the evidence sought to be introduced was
highly probative of the issue.

Nevertheless, due to the trial court's

ruling, the jury never passed on the
issue of materiality before reaching its
verdict, nor was the evidence ever tested

against the reasonable doubt standard. *

*No further discussion of the actual
merits of petitioner's arguments in her
case against the existence of materiality
is provided herein, as the factual explan-
ation necessary to those arguments is
exceedingly complex and would add little,
if anything, to the court's determination
of the merits of this petition. Those
arguments and explanations would, of
course, form a part of petitioner's brief
after grant of the writ.

Moreover, petitioner, in omitting a
lengthy factual exposition here, relies
as well on the doctrine that an unconsti-
tutional jury instruction, or a failure
to instruct the jury on the reasonable
doubt standard, can never be harmless
error. Jackson v. Virginia, 443 U.S. 307,
321 n. 14 (1979); Carpenters v. United
States, 330 U.S. 395, 408-09 (1947).
See also Glasser v. United States, 315
U.S. 60, 76 (1941) (When a right is
absolutely fundamental, niceties of cal-
culation as to harm are not to be indulged
in.).

REASONS FOR GRANTING THE WRIT

I. Virtually All The Court's
Rule 17 Criteria For Issuance
Of The Writ Are Met With
Respect to the Issues
Petitioner Presents.

Many petitioners seeking the writ are
able to show that they satisfy at least
one of the usual criteria for its issu-
ance, e.g., a split among the circuits.
See Rule 17 of the Revised Rules of the
Supreme Court. Few petitioners, however,
bring to the Court a picture of such
extensive disarray as exists in our
national jurisprudence on the materiality
question. As will be demonstrated below,
the tug-of-war between recent Supreme
Court decisions and the out-moded rule
regarding materiality has led to so much
conflict among the lower courts that not
one, but three levels of conflict exist.

This situation can only grow worse, lead-

ing to greater disorder in the law and

greater disparity in treatment of defen-
dants across the country, unless the
Supreme Court decides the issue and
promulgates a definitive rule.

Moreover, the materiality issue
affects prosecutions under scores of
federal statutes and raises substantial
questions as to rights under Article III, § 2
and under the Fifth and Sixth Amendments,

all as more fully discussed, infra.

A. Petitioner's Case, And the
Growing Number of Cases Like
It, Present Issues Related to
Federal Principles of Over-
riding Importance: A Criminal
Defendant's Right To a Trial
By Jury and Her Right to a
Finding of Guilt Beyond A
Reasonable Doubt.

Petitioner was indicted on two
charges of having violated 18 U.S.C. §
1623, the federal perjury statute. Under

that statute and the existing case law,

the alleged false statements must be

shown to be both false and material

before the defendant can be convicted.
That is, materiality is universally re-
garded as an essential element of the
offense.

A long line of Supreme Court cases
over the last decades has held that the
Constitution reguires that such essential
elements must be submitted to the jury
for determination and that the jury must
find that the element was proven beyond
a reasonable doubt.

Nevertheless, in the Second Circuit,
as in the majority of federal courts, the
finding of the existence of materiality
under 18 U.S.C. § 1623 is made by the
court, rather than by the jury. Further,
in the Second Circuit, materiality need
not be found beyond a reasonable doubt,
but the proof need only meet some lesser

standard.

Petitioner believes and asserts that
both of these practices violate. consti-
tutional imperatives of the gravest im-
portance: the unassailable right to a
jury trial and the right to the reasonable
doubt standard. Both issues and the
applicable Supreme Court rulings are
discussed, infra, at II and III, respec-
tively. The wide variety of federal
statutes to which these issues are rele-

vant is described, infra at 17-20.

B. The Circuit Courts, District
Courts and State Courts Presently
Resolve the Competing Claims
Between Modern Constitutional
Law and The Archaic Materiality
Rule Differently.

l. A Conflict Exists Among the
Federal Court of Appeals With Respect
to False Statement Offenses.

Where the statute at issue in peti-

tioner's case and other false statement

statutes* are concerned, the degree of
deference paid to the Constitutional
rights to a jury trial and the reasonable
doubt standard differs radically from
circuit to circuit. The Ninth and Eighth
Circuits have submitted the materiality
issue to the jury for the last several
years. The applicable Ninth Circuit

decisions include United States v.

Halbert, 640 F.2d 1000 (9th Cir. 1980)
(18 U.S.C. § 1341); United States v.

Valdez, 594 F.2d 725 (9th Cir. 1979)
(18 U.S.C. § 1001). Relevant decisions

bd The perjury statute at issue in
petitioner's case may be lumped together
with an impressive array of other federal
laws penalizing false statements and
misrepresentations. The acts prohibited
by this group of statutes are referred to
herein as the "false statement offenses";
they are discussed at 17-20 , infra.

in the Eighth Circuit include United

States v. Voorhees, 593 F.2d 346 (8th

Cir. 1979) (18 U.S.C. § 1001); and

United States v. Johnson, 410 F.2d 38

(8th Cir.), cert. denied, 396 U.S. 822

(1969) (18 U.S.C. § 287).

Such treatment contrasts starkly
with the rule in other circuits, where
materiality is withheld from the jury
and decided by the court, which often

applies a vague standard, far less.

demanding than that of reasonable doubt.

See, e.g.,United States v. Raineri, 670

F. 2d 702 (7th Cir. 1982) (18 U.S.C.
§ 1623); United States V. Berardi, supra;

(18 U.SC. § 1623); United States v. Bell,

623 F.2d 1132 (5th Cir. 1980) (18 U.S.C.
§ 1623); United States v. Giacalone,

587 F.2d 5 (6th Cir. 1978) (18 U.S.C.
§§ 1621, 1623); United States V. Kehoe,

10

562 F. 24 65 (lst Cir. 1977); (18 U.S.C.
§ 1623); United States v. Paolicelli,

505 F.2d 971 (4th Cir. 1974) (18 U.S.C.
§ 1623).

Courts have tended to treat the
element of materiality in the same
manner no matter what false statement
statute is involved. That is, courts
which consider materiality a question
for the jury in a perjury (§ 1623)
prosecution, also submit it to the jury
in other false statement trials. See,

e.g., United States v. Halbert, supra

(18 U.S.C. § 1341); United States v.

Valdez, supra (18 U.S.C. § 1001); United

States v. Voorhees, supra; United States

v. Kostoff, 585 F. 2d 378 (9th Cir. 1978)

(construing 18 U.S.C. § 1014); United

States v. Johnson, supra (materiality

submitted to jury in 18 U.S.C. § 287

11

prosecution).

By the same token, courts which
have held that the materiality of an
allegedly perjurious statement is a
question for the court tend to reserve
that question to the court in other
false statement prosecutions as well.

See, e.g., United States v. Schaffer,

600 F. 2d 1120, 1123 (5th Cir. 1979)

As a result of these differing
approaches, two opposite rules now
exist with respect to at least eight
different false statement statutes, all
of which should obviously be governed
by a single rule--one acceptable in all
courts and compatible with the Consti-

tution.

12

2. The Conflict Exists Not
Only Among the Circuit
Courts, But Between
District Courts Within
the Same Circuit and Between
Different Panels of the
Same Circuit.

Although the rules petitioner chal-
lenges herein are old ones, the arguments
against them are so compelling that the
consensus among federal courts as to
meteriality appears to have unravelled
entirely. The result is an extraordinary
situation in which different panels of
a single circuit decide cases differently
and a defendant before one district court
judge may expect to be treated quite
differently than a defendant facing the
exact same charge in a courtroom next

door.

13

The Eighth Circuit exhibits the
greatest degree of schizophrenia on this
question. In a single year, two
decisions of that Circuit reached
opposite conclusions as to materiality.

See United States v. Phillips, 540 F.2d

319 (8th Cir.), cert. denied, 429 U.S.

1000 (1976) (materiality a question for
the court in § 1623 prosecution) and

United States v. Johnson, supra (material-

ity a question for the jury in § 287
prosecution). The trend represented by
the Johnson court received further
support in a 1979 opinion, in United

States v. Voorhees, supra (approving

submission to jury in 18 U.S.C. § 1001
trial). Yet, only a year later, a panel
of the same court revealed that the issue
was still unsettled, when one judge took
the Johnson position while his two fellow
jurists on the same bench disapproved

that practice, averring that materiality

14

should be decided by the court. See
United States v. Adler, 623 F.2d 1287,

1292 n.8 (8th Cir. 1980) (concerning a
prose ution under both 18 U.S.C. § 287
and § 1001).

The Eighth Circuit anomaly is
exceeded only by the chaos which now
exists in the Second Circuit where
petitioner was tried. There a split has
arisen between district judges of the
Southern Disctict of New York. Petitioner's
request that the issue of materiality be
submitted to the jury for determination
beyond a reasonable doubt was denied in
1981. On her appeal, the Second Circuit
reaffirmed the long-standing rule of the
circuit and approved the denial. App.la.
Yet, only months after Petitioner Falco's
request was denied, another judge within
the same courthouse held that her employer

was entitled to the benefit of the rea-

15

sonable doubt standard and to a jury
determination of the materiality question.

See United States v. Cunningham, 81 Cr.

458 (CLB) (Memorandum and Order of

May 19, 1982 at 27). App. at lla.

Such results are incongruous both
to the individuals being tried and to
the public at large; they are equally
undesirable under our concept of a
unitary federal jurisprudence. It has
become clear, however, that such discrep-
ancies among the courts will only multi-
ply in number so long as this Court
continues its present policy of abs-
taining from deciding the questions of

law Petitioner now raises.

3. The Massachusetts State
Court of Last Resort Has
Decided This Issue Contrary
to the Majority Rule In
the Federal Courts of Appeals.

16

The highest court in the State of
Massachusetts has carefully re-examined
the majority rule on materiality and
found it constitutionally wanting. In

Commonwealth v. McDuffee, 398 N.E. 2d

463 (Mass. 1979), the court of last
resort in that state re-examined the
majority position and held that the rule
could no longer stand up under either
ordinary logical analysis nor under the

Mullaney and Winship principle and their

supervening constitutional diménsions,

discussed at II and III, infra.

Massachusetts, then, provides a
clear-cut example of a third layer of
conflict in this area of law--a conflict
between a state court of last resort and
several of the federal courts of appeals,
including the circuit in which that state

is located. See United States v. Kehoe,

526 F.2d 65 (lst Cir. 1976) (reserving

17

materiality for decision by the court).
See also Rule 17.1, subsection (b)
(State court of last resort in conflict
with federal court of appeals on a

federal question).

Cc. A Substantial Federal Question
Exists In Part Due to the Sheer
Number of Offenses For Which
Materiality is an Essential
Element.

The perjury statute, by its very
words, requires that a false statement
have been material in order to be punish-

able. 18 U.S.C. § 1623.

Materiality is not a question limited
to this single statute, however. Scores
of federal statutes prohibit and penalize
false statements, misrepresentations,
false claims, and other forms of the
seemingly infinite varieties of fraud

which can be practiced upon federal

agencies, courts, financial institutions

18

and others.*

Many of these statutes, like § 1623,
explicitly require that the "false
statement" or other misrepresentation be
material. See, e.g., 18 U.S.C. § 1621
(perjury before grand jury); 18 U.S.C.

§ 922 (a) (6) (false statement in con-
nection with firearms purchase); 26 U.S.C.
§ 7206 (1) (false statement on income tax

return).

Apart from the literal terms of a
given false statement statute, however,
there is a discernible trend among
federal courts of appeals to read an

element of materiality into the offense,

* More than twenty five provisions

of the United States Code prohibit and
punish such offenses, See Historical Note
18 U.S.C.A.§ 1621, p.620 (1966) Note also
that the index of the United States
Code Annotated lists a total of forty
statutes under the “perjury or false
swearing" heading. 6 U.S.C.A.General Index
at 223-24 (1971).

19

whether the applicable statute requires

it or not. See, e.g., United States v.

Lichtenstein, 610 F.2d 1272, 1278 (5th

Cir. 1980) (Courts have inferred a judge-
made limitation of materiality as to all
offenses punishable under 18 U.S.C.

§ 1001) ; United States v. Halbert, supra,

640 F.2d at 1007 ("The evolution of the
federal law of fraud and false pretenses
has been toward a requirement of material-
ity"). The courts construing many of
these false statement offenses have
recognized that materiality is an essen-

tial element. See, e.g., United States

v. Halbert, supra, 640 F.2d at 1008;

(materiality essential to mail fraud
offense under 18 U.S.C. § 1341); United

States v. Kostoff, 585 F.2d 378 (9th Cir.

1978) (essential to bank fraud offense,

18 U.S.C. § 1014); United States v. Adler,

623 F.2d 1287, 1291 n. 5 (8th Cir. 1980)
¢essential element of both 18 U.S.C.

20

§ 1001, governing false statements to
government agencies generally, and 18
U.S.C. § 287, governing false claims

to federal agencies); United States v.

Talkington, 589 F.2d 415, 416 (9th Cir.

1978) (essential under 18 U.S.C. § 1001).

In summary, the false statement
offenses tend to be treated alike insofar
as the materiality question from one to
the other is concerned. Because the
various circuits handle the over-all
issue so differently, viewed from a cons-
stitutional point of view, the questions
petitioner raises herein have an impor-
tance far beyond her individual case and

the statute under which she was convicted.

D. The Supreme Court Has Never
Directly Passed On The Materiality
Question; The Majority Rule Rests
on a 1929 Dictum Which Cannot
Be Justified Either Logically
or Constitutionally.

21

The Supreme Court has never decided
a case in which these issues presented
here were squarely raised. See Rule 17.1,
subsection (c). Supreme Court opinion
on which the majority circuit courts all
ultimately rest their present practice as

to materiality is Sinclair v. United

States, 279 U.S. 263 (1929). Sinclair

concerned the question of a defendant's
refusal to answer “pertinent” questions
in a congressional committee hearing.

In a brief two paragraphs, the Sinclair

Court noted a similarity between the
concepts of pertinency and materiality
and stated that both should be decided by
the court. Id. at 298-99.

An extended treatment of the logical

arguments against the Sinclair Court's

characterization of materiality as a
"question of law for the court"must await

a full appellate brief.

22

The Court is referred for present
purposes, however, to the analyses

provided in McDuffee v. Commonwealth,

398 N.E. 2d 463 (Mass. 1979) and People
v. Clemente, 285 App. Div. 258, 262, 136,

309 N.Y. 890, 131 N.E. 2d 294 (1955).

Further, evidence that the character-
ization of materiality is not a question
of law, either by its nature or of neces-
ity, is provided by civil cases under
federal law in which the jury determines
the issue of materiality. See, e.g.,

Aquionics Acceptance Corporation v.

Kollar, 563 F. 2d 712, 715 (6th Cir.
1976); Radiation Dynamics, Inc. v.

Goldmuntz, 464 F.2d 876, 888 (2d Cir.

1972) (materiality issue submitted to
jury in suit for securities fraud under

15 U.S.C. § 78; (b)).

23

Suffice it to say that no matter
what the validity of the Sinclair dictum

in its day, the progressive clarification
of constitutional law since 1929 and the
consequent disagreement among today's
federal and state courts. (exemplified

by Jackson, Mullaney, Winship, Bloom,

infra},mandates that the question should
be taken up in detail and re-evaluated

in the light of our modern understanding
of a criminal defendant's constitutional
rights. A brief discussion of the clash
between the majority materiality rule and
those constitutional rights will now be

undertaken.

24

II. Defendants in Perjury And
Other False Statement
Prosecutions Are Denied
Plenary Jury Trials Within
The Meaning of the
Constitution in the
Majority of the Federal
Courts of Appeals.

That petitioner, at her trial on per-
jury charges, and other defendants accused
of false statement offenses,* are routinely
denied the full benefit of a jury trial
may be demonstrated by means of a simple
syllogism.

Under the perjury statute, a false
statement must be material in order to be
punishable. 18 U.S.C. § 1623. The courts
have therefore universally held that
materiality is an essential element of

this crime. See, e.g., United States v.
Berardi, 629 F.2d 723, 728 (2d Cir.),

*As discussed, supra, a goodly number
of federal statutes punish misrepresenta-
tions and other false statements. Mater-
iality is a necessary element of virtually
all such federal offenses.

25

cert. denied, 449 U.S. 995 (1980);
United States v. Bell, 623 F.2d 1132,
1134 (5th Cir. 1980); United States v.

Voorhees, 593 F.2d 346, 349 (8th Cir.
1979); United States v. Sl wik, 548 F.2d

75, 79 (3d. Cir. 1977). See also
Mullaney v. Wilbur, 421 U.S. 684, 702

(1975) (An element is any fact "critical

to culpability”); In re Winship, 397 U.S.

358, 364 (1970) (An element of a crime is
“any fact necessary to constitute the
crime").

The Supreme Court rule as to the
constitutional necessity of submitting to
the jury each and every element of an
offense could hardly be more clear. The
jury trial principle has been emphasized
repeatedly over the last decade and is

stated most succinctly in Jackson v.

Virginia:

- « «{NJo person shall
be made to suffer the onus
of a criminal conviction

26

except upon sufficient
proof--defined as evidence
necessary to convince a
trier of fact beyond a
reasonable doubt of the
existence of every element
of the offense.

443 U.S. 307, 316 (1979) (emphasis added).
See also In re Winship, 397 U.S. 358, 364

(1970) (Due Process Clause requires such

proof of "every fact necessary to consti-

tute the crime") (emphasis added).

The Supreme Court's edict that every
element of a crime must be submitted to
the trier of fact is clear and is stated
without admitting of any exceptions.
Nevertheless, the antiquated materiality
rule of the majority of the Courts of
Appeals leads to egregious violations of
that decree. This is best illustrated by
an opinion of the Second Circuit in which,
on one and the same page, the court an-
nounced that "[materiality] is a necessary
element of the crime of perjury,” but that
"(the jury] should be instructed that it

27

need not deliberate over this essential
element of the offense." United States

v. Berardi, 629 F.2d at 728. See also

United States v. Raineri, supra; United

v. Bell, supra; Unied States v. Giacalone,

supra; United States v. Kehoe, supra;

United States v. Paolicelli, supra (all

holding that materiality is an element
that need not be submitted to the jury).

Quite apart from the discrepancy be-
tween the Jackson language and the mater-
iality rule,the error of that rule may
also be laid bare by examining the

raison d'etre of the jury trial. The

Supreme Court has presented a searching
discussion of the basic purpose of the
jury trial in Baldwin v. New York, 399

U.S. 66 (1970). The Baldwin Court stated
in the first instance that the constitu-
tional allocation of power to the jury
rather than to the court represents a

“fundamental decision about the exercise

28

of official power.” Id. at 72. Justice
White went on the note that the Founding
Fathers placed particular importance on
jury trials to prevent the reality, or
even the appearance, of misuse of power
by the Government, whether through the
executive or its co-ordinate branch, the
judiciary:

"(T]he primary purpose of the
jury is to prevent the possi-
bility of oppression by the
Government; the jury inter-
poses between the accused and
his accuser the judgment of
laymen who are less tutored
perhaps than a judae or a
panel of judges, but who at
the same time are less likely
to appear as but another arm
of the Government that has
proceeded against [her].

Id. See also id. at 76-77 (Burger, C.J.,
dissenting) ("The Founding Fathers there-
fore cast the constitutional provisions
we deal with here as limitations on
federal power....").

As against the historical rationale

for jury trials and the constitutional

29

cases cited above, little can be said to
support the existing rule concerning
materiality except that it has had a long
life. The Supreme Court has made clear,
however, that no amount of “weighty and
ancient authority" can suffice to make an
unconstitutional practice acceptable.

Bloom v. Illinois, 391 U.S. 194, 196 n. 1,

198, 200 n. 2 (1968).

In Bloom, the Court reversed a prac-
tice more than two hundred and fifty years
old by holding that contempt cases could
no longer be determined by the court, but
must be submitted to a jury.

In the course of the Bloom opinion,
also, the Court referred briefly to the
historical rationale for requiring a jury
trial in criminal cases, j.,@,., "as a
protection against the arbitrary exercise
of official power." Id. at 202.

The Bloom Court, far from holding

that historic usage excused the necessity

30

for a jury trial in contempt cases, stated
instead that "an even more compelling ar-
gument” for the right to a jury trial

could be made out as to contempt charges,
because contemptuous conduct is "an inter-
ference with the judicial process" and
represents an offense against the court
itself. Id. at 202. These facts made ex-
ercise of the contempt power a particularly
"arbitrary" one and therefore all the

more “liable to abuse". Id. The necessity
to “interpose the jury” between the accused
and the accuser was thus paramount. Cf.

Baldwin v. New York, supra, at 72.

The same “even more compelling argu-
ments" are as true for perjury as they
are for contempt cases, as perjury too is
a crime that strikes at the heart of the
judicial process. Indeed, at petitioner's
sentencing hearing, the court before which
her perjury case was tried remarked that

it considered such charges extremely

31

serious, “because they go to the very nub
of our whole system of justice." Tran-
script of Hearing, March 16, 1982, at 16.*

The Bloom decision serves as an ex-
cellent illustration of the governing
precept that when historical practice and
the Constitution collide, it is history
which must yield.

Bloom serves equally to remind us of
the need for periodic re-examination of

allegedly unconstitutional practices in

*The fact that perjury prosecutions
often involve well-known political
figures is a further reason to place deter-
mination of each element of that offense
outside the reach of any branch of the
government. Here, for example, the chain
of indictments and trials that led to
petitioner's trial began with a highly
publicized investigation of Patrick
Cunningham, petitioner's employer and then
Chairman of the Democratic Party in
New York State. Much better-known and far
more controversial examples of political
figures convicted of perjury include
Earl Browder, former head of the American
Communist Party, and Alger Hiss.

3 2

the light of latter-day developments in
the constitutional case law. Petitioner
has marshalled extremely powerful

arguments for just such a re-evaluation

here.

3 3

III. The Second Circuit Rule
Concerning Materiality
Violates the Winshi
Principle That the
Reasonable Doubt Standard

Must Be Applied to Every
Element of a Criminal Offense

In In re Winship, the Supreme Court

said:

Lest there remain any doubt
about the constitutional
statute of the reasonable
doubt standard, we explicitly
hold that the Due Process
Clause protects the accused
against conviction except
upon proof beyond a reasonable
doubt of every fact necessary
to constitute the crime with
which he is charged.

397 U.S. 358, 364 (1970) (emphasis added).
The words “Lest there remain any
doubt" would seem to admit of little
question as to the depth of the Court's
constitutional commitment to the reason-
able doubt standard. This impression has
been strengthened by the Court's unequi-
vocal restatements of the Winship concept

in subsequent cases. See Mullaney v.

3 4

Wilbur, supra (the government"must prove
every ingredient of an offense beyond a
reasonable doubt....") (emphasis added).
See also Patterson v. New York, 432 U.S.
197, 215 (1977) (affirming the Mullaney
language).

The Second Circuit's rule on mater-
iality, however, is explicitly to the
contrary. Although recognizing that
materiality is an essential element of
any perjury offense, that Court has held
that materiality “need not be established
beyond a reasonable doubt". See, e.g.,

United States v. Berardi, 629 F.2d 723,

727 (2d Cir.), cert. denied, 449 U.S. 995

(1980. Accord, United States v. Giacalone,
587 F.2d 5, 7 (6th Cir. 1978), cert.
denied, 445 U.S. 961 (1979) ("The govern-
ment need not prove materiality beyond a
reasonable doubt".)

If the Constitution commands that

the reasonable doubt standard be applied

3 5

in Winship-style juvenile delirquency
proceedings, however, it is difficult
indeed to see how it can--in even a
limited way --constitutionally be denied
a defendant in a felony trial for perjury.
The Second Circuit rule on materiality
is, of course, unaccountable, illogical,
and unconstitutional. Defendants accused
of the crime of perjury, every bit as
much as other citizens, need and are en-
titled to that reduction in the litigative
“margin of error" which is provided by
the reasonable doubt standard. See In re
Winship, supra, 387 U.S. at 364. Due
process requires no less, and due process
is owed as much to those charged with
perjury offenses as to those charged with
kidnapping and homicide. See, @.g.,
Jackson v. Virginia, 443 U.S. 307, 323

(1979) ("The constitutional necessity of
proof beyond a reasonable doubt is not

confined to those defendants who are

3 6

morally blameless."). See also United
States v. Miranti, 253 F.2d 135, 141
(2a Cir. 1958) ("[T]he Constitution is
for the despicable as well as for the
admirable.").

Petitioner here seeks nothing more
than that the Due Process Clause be
applied to her, just as it is to defendants
charged with other--whether greater or
lesser-~crimes:

---The Due Process Clause
requires the prosecution

to prove beyond a reasonable
doubt all of the elements
included in the definition

of the offense of which
the defendant is charged.

Patterson v. New York, 432 U.S. 197, 210

(1977) (emphasis added).

3 7

CONCLUSION

The materiality rule, like the older,
unconstitutional contempt procedure, rests
on:

an unconstitutional assumption
of powers by the [courts]
which no lapse of time or
respectable array of opinion
should make us hesitate to
correct.

Bloom v. Illinois, supra, 391 U.S. at

198, quoting Black & White Taxicab &

Transfer Co. v. Brown & Yellow Taxicab

Transfer Co., 276 U.S. 518, 533 (1928)

(Holmes, J., dissenting).

In keeping with Justice Holmes' un-
compromising declaration, the Court should
issue a writ of certiorari to the Second
Circuit and make a fresh, binding
determination of the questions petitioner
raises. Nothing less will halt the con-
tinuing fragmentation and breakdown of
the former consensus on the materiality

rule; nor will anything short of a

3 8

Supreme Court decision put an end to the
apparently unconstitutional procedures
presently applied in felony trials for
perjury and other false statements--this

troubled area of our law.

For all of the foregoing reasons, a
writ of certiorari should issue to review

the judgment and opinion of the Court of

Appeals.
Respectfully submitted,

PAUL O'DWYER

99 Wall Street

New York, New York 10005
(212) 269-3939

Attorney of Record

KEARA M. O' DEMPSEY

275 Madison Avenue

New York, New York 10016
(212) 686-2265

Of Counsel

Dated: New York, New York
November 24, 1982

APPENDIX

APPENDIX

Page
Opinion of the United States
Court of Appeals for the
Second Circuit la
Denial of Petition for Re-
hearing 9a

Memorandum Opinion and Order
of the United States
District Court for the
Southern District of
New York (excerpt) ;
United States v. Cunning-
ham lla

IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-appellee, 8221104
Vv.

MARIE FALCO,

Defendant-Apnellant.

This is an appeal from an order of
the United States District Court for the
Southern District of New York, entered
after trial before Judge Vincent L.
Broderick and a jury, convicting appel-
lant Marie Falco of making false
material declarations under oath at a
trial and using a false document in the
course of that testimony, 18 U.S.C. §
1623.

During 1978, appellant's employer,
Patrick Cunningham, was the subject of

an Internal Revenue Service investigation.

In order to support his tax reports,
Cunningham persuaded his friend John
Spain to tell the IRS agents that he had
paid Cunningham $2,000 in cash during
1975 for legal services. Spain told
this story to IRS agents on two separate
occasions in 1978. In July 1980, Spain
appeared before a Grand Jury that was
investigating Cunningham and denied that
he had made such a payment. Spain was
charged with making a false statement to
the Grand Jury about his previous inter-
views with IRS agents and tried for
perjury in 1981. Appellant's indictment
arose out of her testimony at the Spain
trial.

Appellant was called by Spain's
counsel to testify about a memorandum
dated January 25, 1978, which detailed
Spain's interview on that day with the
IRS and stated that Spain informed the

IRS that he never paid Cunningham cash.

Appellant testified that she typed the
memorandum immediately after speaking to
Spain on the telephone about his inter-
view.

The Government cross-examined app-
ellant extensively about the memorandum.
Appellant insisted that it had been her
responsibility to conduct debriefings,
that she had remembered the memorandum
and brought it to Spain's attention after
the investigation focused on his perjurv
and that she was sure she typed the
memorandum immediately after Spain called.
The prosecuting attorney expressed dis-
belief that a professional typist pre-
pared the memorandum, which contained
numerous typographical errors. Other
evidence tended to show that appellant
did not work late on the night she
claimed to have typed the memorandum.
Appellant became quite emotional during

the cross-examination.

At her trial for perjury, appellant
admitted that the memorandum was false,
but claimed that she had in fact typed
a memorandum which was replaced by the
fabrication without her knowledge. She
introduced psychiatric testimony to show
that her mental and emotional condition
was such at the Spain trial that she was.
unable to distinguish the false document
from the memorandum she had prepared.

Viewed in the light most favorable
to the Government, drawing all rational

inferences in favor of guilt, Glasser v.

United States,315 U.S. 60, 80 (1942),

the evidence at appellant's trial was
sufficient to show that she intentionally
made a material false statement under
oath at Spain's trial. The jury was en-
titled to evaluate the credibility of

the psychiatric witnesses and reject
their opinion that appellant was unaware

that her testimony was false.

See United States v. Singh,628 F.2d 758,

766 (2d Cir.), cert. denied, 449 U.S.

1034 (1980). A rational trier of fact
could reasonably have found that appel-
lant had the specific intent to commit
perjury.

Appellant’s claim that the trial
judge erred in denying her request to
submit the materiality issue to the jury
is without merit. This Court has con-
sistently held that materiality is a
threshold question to be decided by the

court. United States v. Berardi, 629

F.2d 723, 728 (2d Cir.), cert. denied,

449 U.S. 995 (1980); United States v.

Mulligan, 573 F.2d 775, 779 (2d Cir.),
cert. denied, 439 U.S. 827 (1978).

Furthermore appellant's false statements
were unquestionably relevant to whether

Spain testified falsely to the Grand

Jury.

Appellant's motion for a new trial
on the basis of newly discovered evidence
was properly denied because appellant
failed to show either that evidence of
a telephone conversation log kept at
Cunningham's office would probably lead

to acquittal, United States v. Gilbert,

668 F.2d 94, 96 (2d Cir. 1981), cert.
denied,102 S. Ct. 2014 (1982), or that
tle evidence could not have with due
diligence been discovered at or before

trial. United States v. Natelli, 553

F.2d 5, 7 (2d Cir.), cert denied, 434

U.S. 819 (1977). The record proffered
as newly-discovered evidence simply did
not corroborate appellant's statement
that she spoke to John Spain on January
25, 1978.

Inasmuch as appellant was not
asserting an insanity defense, the court
was not required to instruct the jury

that the Government must disprove evidence

of appellant's deficient mental condition.
Psychiatric testimony was offered by
appellant to negate the intent element
of the offense, and the jury was ade-
quately instructed that the Government
bore the burden of proving intent beyond
a reasonable doubt.

Decisions on the admissibility of
evidence are vested in the trial court
and should not be disturbed absent an

abuse of discretion. United States v.

Robinson, 560 F.2d 507, 515 (2d Cir.)

cert. denied, 435 U.S. 905 (1977).

Because statements made by a defendant
about her mental state may be unreliable
when made in anticipation of litigation,
the trial court did not err in admitting
statements made by appellant to her
testifying psychiatrists for the limited
purpose of assessing the expert witnesses'

credibility.

Finally, appellant has not shown
that the district court judge relied on
material misinformation or constitution-
ally impermissible factors in setting
sentence. Accordingly, the sentence
which concededly is within the statutory
limit is not subject to appellate review.
United States v. Mejias, 552 F.2d 435,

447 (2d Cir.), cert. denied, 434 U.S.

847 (1977).

The judgment is affirmed.

Hon. Ellsworth A. Van Graafeiland

Hon. Lawrence W. Pierce

Hon. Howard T. Markey

ENTERED: August 10, 1982

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

At a stated term of the United States
Court of Appeals, in and for the Second
Circuit, held at the United States
Courthouse, in the City of New York, on
the 27th day of September, one thousand

nine hundred and eighty-two.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 81-1104
MARIE FALCO,

Defendant-Appellant.

A petition for rehearing containing
a suggestion that the action be reheard
in banc having been filed herein by
counsel for the defendant-appellant,

Marie Falco,

10 a

Upon consideration by the panel that
heard the appeal, it is

ORDERED that said petition for hear-
ing is DENIED.

It is further noted that the sugges-
tion for rehearing in banc has been trans-
mitted to the judges of the court in
regular active service and to any other
judge on the panel that heard the appeal
and that no such judge has requested that

a vote be taken thereon.

A. Daniel Fusaro, Clerk

by:

Francis X. Gindhart
Chief Deputy Clerk

Entered: September 27, 1982

lla

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-~----------------------------- x
UNITED STATES OF AMERICA : 81 Cr.
: 458-CLB

— {Excerpts
PATRICK J. CUNNINGHAM and —. om
JOHN J. SWEENEY, ae

Defendants. :

eeccoesscoscoesosesesosesesse xX

(Excerpt from pp. 26-27:)

By this motion, Sweeney urges this Court
to determine the materiality of these
alleged false declarations at this pre-
trial stage, or in the alternative, to
determine whether this issue should be
submitted as one of fact to the jury for
resolution.

It is undisputed that the burden of
proof is upon the Government to establish
the following four elements with respect
to Counts VIII, IX and X: (1) that
Sweeney took an oath to testify truth-

fully before a United States grand jury

12 a

in this district; (2) that he then made
false statements as to matters about
which he testified under oath as are
charged in the Indictment; (3) that those
false statements were wilfully made in
that he knew them to be false when made;
and (4) as to the matters which were
allegedly false, that such were material
to the issues under inquiry by the grand

jury. See United States v. Mulligan,

573 F.2d 775, 779 (2d Cir.), cert. denied,
439 U.S. 827 (1978).

The Government urges, however, that
the necessary element of materiality
within the offense charged in 18 U.S.C.
§1623 is a question of law to be deter-
mined by court, and also that it need not
be proved beyond a reasonable doubt.

Relying upon United States v. Berardi,

629, F.2d 723, 728 (2d Cir.), cert. denied,
445 U.S. 995 (1980) and Mulligan, supra,

the Government asserts that its proof at

13 a

trial will satisfy this lesser standard
and establish the materiality of the
alleged false declarations charged in
Counts VIII, IX and X.

The difficulty presented by the
Government's contention is that it
controverts the fundamental right
accorded criminal defendants that no
person shall lose his liberty unless the
Government has “persuad[ed] the fact-
finder at the conclusion of the trial of
his guilt beyond a reasonable doubt”. In
re Winship, 397 U.S. 358, 364 (1969).

It was held in Patterson v. New York,

432 U.S. 197, 210 (1976), that:

"(T]he Due Process Clause requires
the prosecution to prove beyond a
reasonable doubt all of the elements
included in the definition of the
offense of which the defendant is

charged.” (emphasis added)

This Constitutional requirement was

reiterated in Sandstrom v. Montana,

442 U.S. 510, 520 (1978).

14a

Materiality is an essential element
of the crime charged in 18 U.S.C. § 1623.
Accordingly, materiality must be estab-
lished by the Government to the satis-
faction of the trial jury beyond a
reasonable doubt. We believe that the
Government's reliance upon Berardi and

Mulligan, which may be read to suggest

otherwise, is misplaced.

At the trial of this Indictment, the
Court will present the materiality vel
non of the alleged false declarations to
the jury as an essential element of the
offenses charged to be regarded as a
disputed issue of fact subject to the
jury's determination beyond a reasonable

doubt before a conviction may be had.

x ke

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1224%3A1. Public record. Not legal advice.