# Opposition Brief — Neder v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1

## Text

~ | FILED -

SEP 1 4 1998
No. 97-1985

Jn the Supreme Court of th
OCTOBER TERM, 1997

a

ww * ww — 7 7 a>) mal!

ELLIS E. NEDER, JR., PETITIONER
v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
LOUIS M. FISCHER
Attorney -
Department of Justice

Washington, D.C . 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether materiality is an element of mail fraud
(18 U.S.C. 1341), wire fraud (18 U.S.C. 1343), and bank
fraud (18 U.S.C. 1344).

2. Whether the trial court’s failure to instruct the
jury on the materiality element of the tax charges in
this case was harmless error because materiality was
not in dispute at trial.

TABLE OF CONTENTS

Page
Opinion below 1
Jurisdiction 1
Statement 1
Discussion 6
Conclusion 14
TABLE OF AUTHORITIES
Cases:
Bilzerian v. United States, 127 F.3d 237 (2d Cir.
1997), petition for cert. pending, No. 97-1892 ............ 12, 13
BMW of N. Am., Inc. v. Gore, 517 U.S. 559
(1996) 7
California v. Roy, 519 U.S. 2 (1996) ll
Durland v. United States, 161 U.S. 306 (1896) .......... 7
Gideon v. Wainwright, 372 U.S. 335 (1968) ................ 10-11
Hart v. Stagner, 935 F.2d 1007 (9th Cir. 1991) .......... 12
Johnson v. United States, 117 8. Ct. 1544 (1997) ...... 11
McKaskle v. Wiggins, 465 U.S. 168 (1984) ................. 10
Rogers v. United States, 118 S. Ct. 673 (1998) ........... 12
Rose v. Clark, 478 U.S. 570 (1986) 10
Sullivan v. Louisiana, 508 U.S. 275 (1998) ................ 10, 11
Tumey v. Ohio, 273 U.S. 510 (1927) ll
United States v. Cochran, 109 F.3d 660 (10th
Cir. 1997) ; s
United States v. Coffman, 94 F.3d 330 (7th Cir.
1996), cert. denied, 117 S. Ct. 1425 (1997) .................. 7
United States v. DeF ries, 129 F.3d 1293 (D.C.
Cir. 1997) 13
United States v. DeSantis, 134 F.3d 760 (6th
Cir. 1998) 8-9
United States v. DiRico, 78 F.3d 732 (ist Cir.
1996) 12,13

(IID)

Cases—Continued: Page
United States v. Fern, 117 F.3d 1298 (11th Cir.

1997) 12
United States v. Gaudin, 515 U.S. 506 (1995) ......... 8,9
United States v. Holland, 880 F.2d 1091 (9th

Cir. 1989) 12
United States v. Johnson, 71 F.3d 139 (4th Cir.

1995) 13
United States v. Klausner, 80 F.3d 55 (2d Cir.

1996) 9
United States v. Moser, 123 F.3d 813 (5th Cir.),

cert. denied, 118 S. Ct. 613 (1997) 9
United States v. Nash, 115 F.3d 1431 (9th Cir.

1997), cert. denied, 118 S. Ct. 1054 (1998)... 9
United States v. Pribble, 127 F.3d 583 (7th Cir.

1997), cert. denied, 118 S. Ct. 1056 (1998) .......-...-00-- 9
United-States v. Raether, 82 F.3d 192 (8th Cir.

1996) 12, 13
United States v. Rodriguez, 140 F.3d 163 (2d

Cir. 1998) 8
United States v. Slaughter, 128 F.3d 623 (8th

Cir. 1997) 8
United States v. Wells, 519 U.S. 482 (1997) ........... 5,7,8
Vasquez v. Hillery, 474 U.S. 254 (1986) 10
Waldemar v. United States, 106 F.3d 729 (7th

Cir. 1996) 13
Waller v. Georgia, 467 U.S. 39 (1984) 10
Yates v. Evatt, 500 U.S. 391 (1991) 6

Statutes:
Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. 1961 et seq. 9
18 U.S.C. 1962(c) 1

18 U.S.C. 1962(d) 2

Statutes—Continued:

18 U.S.C. 371

Page
2

18 U.S.C. 1014
18 U.S.C, 1341
18 U.S.C. 1343
18 U.S.C. 1344
26 U.S.C. 7206

26 U.S.C. 720601)
Miscellaneous:

2,5

2, 5, 6, 7,8, 9, 10
2, 5, 6, 7,8, 10
2, 6, 7, 8, 9, 10

11,12

2, 6, 9, 10, 12

1 J. Story, Commentaries on Equity Jurispru-

dence (13th ed. 1886)
Restatement (Second) of Torts (1977)

In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1985
ELLIS E. NEDER, JR., PETITIONER

v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-13a)
is reported at 136 F.3d 1459.

JURISDICTION

The judgment of the court of appeals was entered on
March 19, 1998. The petition for a writ of certiorari was
filed on June 9, 1998. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court
for the Middle District of Florida, petitioner was con-
victed on one count of conducting the affairs of an
enterprise through a pattern of racketeering activity
(18 U.S.C. 1962(c)); one count of conspiring to commit

(1)

2

that offense (18 U.S.C. 1962(d)); one count of conspiring
to defraud a financial institution (18 U.S.C. 371); 12
counts of bank fraud (18 U.S.C. 1344); nine counts of
mail fraud (18 U.S.C. 1341); nine counts of wire fraud
(18 U.S.C. 1343); 37 counts of making false statements
to a financial institution (18 U.S.C. 1014); and two
counts of filing false income tax returns (26 U.S.C.
7206(1)). He was sentenced to 147 months’ imprison-
ment, to be followed by five years’ supervised release,
and was ordered to pay approximately $25 million in
restitution. Pet. App. 14a-20a. The court of appeals
affirmed. Jd. at la-13a.

1. Between August 1984 and November 1986, peti-
tioner purchased land using shell corporations. Peti-
tioner then resold the land at much higher prices to
limited partnerships that he controlled. Petitioner used
bank loans to finance the resales. Because the loans
typically amounted to 70% of the inflated price, the loan
proceeds substantially exceeded the original cost of the
land to petitioner’s shell corporations. Petitioner made
numerous false statements in order to conceal from
lenders that he controlled the shell corporations that
had first bought the land and that he had engaged in a
scheme to inflate the apparent value of the land. The
lenders would not have made the loans in question had
petitioner not made false statements to conceal his
scheme. Gov’t C.A. Br. 3-7.

After each transaction, petitioner deposited to his
personal account a check reflecting the amount by
which the loan proceeds exceeded the original purchase
price of the land. In that way, petitioner obtained more
than $7 million. Petitioner made only $75,000 in pay-
ments before defaulting on all of the loans, which
totaled approximately $17 million. Gov’t C.A. Br. 7-8.

3

Petitioner also obtained a $4,150,000 construction
loan to build condominiums on a project known as
Cedar Creek. The bank loan officer told petitioner that,
in order to qualify for the loan, he would have to make
advance sales of 20 units. Petitioner initially was able
to sell only 13 units, so he secured an additional seven
buyers by making their down payments in amounts
ranging from $4,000 to $8,900. Petitioner thereby ob-
tained the construction loan, but he subsequently de-
faulted without repaying any of the principal. Peti-
tioner also arranged to have the down payments trans-
ferred back to him from the escrow account into which
they had been placed. The lender would not have made
the loan had it been aware that petitioner rather than
the buyers had made the down payments on seven of
the sales. Gov’t C.A. Br. 9-11.

Petitioner used a similar scheme to obtain a
$5,400,000 loan for development of condominiums at
another project referred to as the Southern Grove pro-
ject. The bank loan officer required that petitioner
have 25 reservation agreements signed by prospective
buyers, and that the prospective buyers each pay a
$500 deposit to establish their genuine interest in the
project. Petitioner solicited people to sign reservation
agreements, offering to pay the $500 deposit fee in
return for their signatures. Between July and October
1985, petitioner obtained 19 signed reservation agree-
ments. Petitioner signed each of those agreements as
the seller, but he also made each of the deposit pay-
ments for the supposed buyers and forged the signa-
tures of two of the supposed buyers. In October 1985,
petitioner obtained the construction loan. The lender
would not have made the loan had it been aware that
petitioner had paid the deposits for the supposed
buyers. Gov’t C.A. Br. 11-13.

4

After he obtained the loan for the first phase of the
Southern Grove project, petitioner sought an additional
loan for the next phase. The loan officer told petitioner
that the bank would not issue a construction loan for a
given building unless petitioner made advance sales of
70% of the units in the building. The loan officer also
said that the buyers had to make nonrefundable depos-
its of 10% of the purchase price, and that the buyers
had to qualify for a mortgage loan from the bank.
Petitioner subsequently obtained ten signed reserva-
tion agreements, but he himself provided the funds that
the buyers used to make the required deposits of
approximately $8,000. In making its loan decision, the
lender relied on the misrepresentations in the reserva-
tion agreements that the buyers were the source of the
deposits. Gov't C.A. Br. 13-14.

Petitioner attempted to obtain a $4,700,000 loan
relating to a project called The View. As part of that
attempt, petitioner directed a lawyer to execute a false
deed and promissory note. Although the lender ap-
proved the loan application, and petitioner and the
lender signed a commitment letter, the transaction fell
through when petitioner’s lawyer refused to sign an
opinion letter representing that petitioner’s financial
status had not changed for the worse. Gov't C.A. Br.
15-17.

In November 1986, petitioner obtained a $6 million
land acquisition loan for a project known as the Reddie
Point project. He fell behind in his payments, but in
July 1987 he negotiated a consolidated $14 million loan
to cover land acquisition and construction costs. Under
the terms of the revised loan, petitioner could submit
draw requests for work actually performed on the
project. Instead, he submitted false draw requests and
obtained approximately $3 million, which he used to

J

|

5

make interest payments on his other loans. Gov’t C.A.
Br. 18-20.

Finally, petitioner failed to report on his personal
income tax return more than $1 million in income for
1985 and more than $4 million in income for 1986. Those
amounts represented the profits from petitioner’s land
acquisition scheme, which petitioner had deposited into
his personal account and used for his own purposes.
Gov't C.A. Br. 20-22.

2. At trial, the district court instructed the jury on
the bank fraud, false statement, and tax offenses that
the question of materiality was not for the jury to
decide. Pet. App. 28a, 30a, 31a, 34a. On the wire and
mail fraud offenses, the district court did not include
materiality as an element. /d. at 3la-34a. Petitioner
objected to the district court’s refusal to require that
the jury make findings of materiality on all of the
offenses at issue. Jd. at 3a; Gov’t Supp. C.A. Br. 1. The
district court subsequently made a finding, outside of
the presence of the jury, that the evidence established
materiality beyond a reasonable doubt on all counts at
issue. Pet. App. 3a; Gov’t Supp. C.A. Br. 1-2.

3. On appeal, petitioner contended that the district
court had committed reversible error in refusing to
submit the question of materiality to the jury. The
court of appeals rejected that contention. Pet. App. 3a-
13a.

In rejecting petitioner’s challenge to his false state-
ment convictions under 18 U.S.C. 1014, the court of
appeals relied on this Court’s decision in United States
v. Wells, 519 U.S. 482 (1997), which held that material-
ity is not an element of that offense. Pet. App. 3a-5a.
The court of appeals further held that, under the
analysis in Wells, materiality is not an element of mail
fraud (18 U.S.C. 1341), wire fraud (18 U.S.C. 1343), or

6

bank fraud (18 U.S.C. 1344). Pet. App. 6a-10a. Finally,
the court of appeals held that, although materiality is
an element of the offense of falsely subscribing to a tax
return in violation of 26 U.S.C. 7206(1), and the district
court erred in failing to submit the issue of materiality
to the jury on those counts, the error was harmless,
because “materiality was not in dispute regarding [peti-
tioner’s] tax fraud offense.” Pet. App. 12a. The court of
appeals observed that, under the tax statute at issue,
“any failure to report income is material,” and peti-
tioner’s “convictions were based on his failing to report
$1,372,360 in income in 1985 and $4,355,766 in income in
1986.” Ibid. Indeed, the court noted, petitioner did not
contest the materiality of these sums of unreported
income. IJbid— Accordingly, the court found that the
error “did not contribute to the verdict obtained.” Jd.
at 13a (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991)).

DISCUSSION

1. Petitioner contends (Pet. 20-25) that the Courts of
appeals are in conflict on the question whether materi-
ality is an element of mail fraud under 18 U.S.C. 1341,
wire fraud under 18 U.S.C. 1343, and bank fraud under
18 U.S.C. 1344. Although the court of appeals correctly
held that materiality is not an element of those offenses,
we agree with petitioner that there is a conflict among
the courts of appeals on the .uestion and that the
conflict warrants this Court’s revi2w.

a. Sections 1341, 1343, and 134+ of Title 18 criminal-
ize various kinds of conduct involving schemes or
artifices to defraud or to obtain money or property “by
means of false or fraudulent pretenses, representa-
tions, or promises.” Section 1341 prohibits the use of
the mails as part of such a scheme; Section 1343 pro-
hibits the use of wire, radio, or television communica-

7

tions as part of such a scheme; and Section 1344 pro-
hibits such schemes involving financial institutions.
Unlike many other federal criminal statutes, Sections
1341, 1343, and 1344 do not use the word “material” in
defining the offense. “Thus, under the first criterion in
the interpretative hierarchy, a natural reading of the
full text, materiality would not be an element of” those
offenses. United States v. Wells, 519 U.S. 482, 490
(1997) (citation omitted).

There is no basis for importing into those criminal
statutes civil law notions of what is required for an
action in fraud. Although civil torts sounding in fraud
do typically “require[] a material misrepresentation or
omission,” BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
579 (1996), Sections 1341, 1343, and 1344 reach more
broadly than civil tort law does. For example, a civil
action sounding in fraud will generally lie only if the
victim justifiably relies to his detriment on the defen-
dant’s deceptive statements or conduct. See Restate-
ment (Second) of Torts § 537 (1977); 1 J. Story, Com-
mentaries on Equity Jurisprudence §§ 199, 202-203
(13th ed. 1886). Sections 1341, 1343, and 1344, however,
impose no such requirement. See, e.g., United States v.
Coffman, 94 F.3d 330, 333-334 (7th Cir. 1996), cert.
denied, 117 S. Ct. 1425, 1426 (1997). See generally Dur-
land v. United States, 161 U.S. 306, 312-315 (1896)
(predecessor of mail fraud statute “is broader” than
common-law doctrine of “false pretences”; “[iJt was
with the purpose of protecting the public against all
such intentional efforts to despoil, and to prevent the
post office from being used to carry them into effect,
that this statute was passed”).

The mail, wire, and bank fraud statutes prohibit
schemes and artifices that are intended to defraud, and
it suffices to establish a violation of those provisions

8

that the defendant intended that his deceptive conduct
or statements would deprive the victim of some right or
interest. There is no basis to impose the additional re-
quirement, connoted by the word “material,” that the
deceptive conduct or statements in fact had “a natural
tendency to influence, or [were] capable of influencing”
the victim. United States v. Gaudin, 515 U.S. 506, 509
(1995) (defining “materiality”).

b. The courts of appeals have reached conflicting
conclusions on the question whether materiality is an
element of Sections 1341, 1343, and 1344. See Pet. 21-22
& nn.10-11. Although many of the decisions petitioner
cites antedate this Court’s decision in Wells, the conflict
has persisted and shows no sign of abating. The
Eleventh Circuit in this case relied on Wells in holding
that materiality is not an element of Sections 1341,
1343, and 1344. Pet. App. 3a-10a. The Tenth Circuit
has reiterated, after Wells, its view that

[aJlthough materiality is not an independent ele-
ment of a wire fraud prosecution, there is a ma-
teriality aspect to the determination whether the
acts of an accused give rise to a scheme to defraud,
that is appropriately submitted to the jury as one
component of the larger factual question as to the
existence of fraud and a scheme to defraud.

United States v. Cochran, 109 F.3d 660, 667 n.3 (10th
Cir. 1997) (quotation marks omitted). See also United
States v. Slaughter, 128 F.3d 623, 629 (8th Cir. 1997)
(after Wells, adopting Tenth Circuit’s approach).

The Second, Sixth, and Ninth Circuits, in contrast,
have held, after Wells, that materiality is an element of
various of the offenses at issue. See United States v.
Rodriguez, 140 F.3d 163, 167 (2d Cir. 1998) (Section
1344); United States v. DeSantis, 134 F.3d 760, 764 (6th

‘ 9

Cir. 1998) (Section 1341); United States v. Nash, 115
F.3d 1431, 1436 (9th Cir. 1997) (Section 1344), cert.
denied, 118 S. Ct. 1054 (1998). The Fifth and Seventh
Circuits, finally, have treated the issue as an open one
in light of Wells. See United States v. Moser, 123 F.3d
813, 825-827 (5th Cir.) (Section 1341), cert. denied, 118
S. Ct. 613, 642, 884 (1997); United States v. Pribble, 127
F.3d 583, 588 (7th Cir. 1997) (Section 1344), cert. denied,
118 S. Ct. 1056 (1998).

The conflict merits this Court’s review. Mai! fraud,
wire fraud, and bank fraud are frequently prosecuted
offenses. Moreover, as petitioner correctly notes (Pet.
25), they are often included as predicate offenses in
both criminal and civil cases under the Racketeer Influ-
enced and Corrupt Organizations Act, 18 U.S.C. 1961 et
seg. The Court should grant the petition to resolve the
question whether those offenses include an element of
materiality.

2. Petitioner also challenges (Pet. 15-20) the court of
appeals’ decision to conduct harmless-error review of
the district court’s failure to instruct the jury on
whether petitioner’s false statements on his tax returns
were material.’ Petitioner notes (Pet. 9-14) that there

' The harmless-error question arises only if there was an error.
Section 7206(1) provides that it is an offense to subscribe to a tax
return under penalty of perjury when the taxpayer does not
believe the return “to be true and correct as to every material
matter.” The court of appeals rejected the government’s argument
that there was no error at all because false statements concerning
income on a tax return are “material” as a matter of law. Pet. App.
10-1la. Although one court of appeals has accepted the argu-
ment that the materiality of false statements of income in a
prosecution under Section 7206(1) presents a legal question for the
court, see United States v. Klausner, 80 F.3d 55, 60-61 (2d Cir.
1996), the other courts of appeals that have addressed the issue
have concluded that United States v. Gaudin, supra, requires

10

is a conflict among the courts of appeals on the question

whether the erroneous failure to instruct the jury on an —

element of an offense is subject to harmless-error
analysis. Although the court of appeals resolved that
question correctly by holding that such an error can be
_harmless, the conflict on that issue warrants this
Court’s review.”

“(I}f the defendant [in a criminal case] had counsel
and was tried by an impartial adjudicator, there is a
strong presumption that any other errors that may
have occurred are subject to harmless-error analysis.”
Rose v. Clark, 478 U.S. 570, 579 (1986). The Court has
identified certain fundamental constitutional errors—
so-called “structural” errors—that are never harmless.°

submission of the materiality issue to the jury. See Pet. App. lla
(collecting cases). We do not press here any argument that the
district court was correct in withholding the issue of materiality
from the jury on the Section 7206(1) counts.

2 Because it held that Sections 1341, 1343, and 1344 did not
require proof of materiality, the court of appeals did not reach the
government’s alternative argument on those counts that any error
was harmless because (1) petitioner did not dispute materiality, (2)
the proof of materiality was overwhelming; and (3) no reasonable
jury could have failed to find materiality in light of the jury’s
finding that petitioner “intended to deceive others and to obtain by
false or fraudulent pretenses, representations or promises money
or property from persons so deceived.” See Gov't Supp. C.A. Br.
9-10 (quoting from trial transcript); Gov’t Second Supp. C.A. Br.
16-34. If this Court were to conclude that materiality is an element
of any of those offenses, those harmless-error arguments would
have to be confronted.

3 See Sullivan v. Louisiana, 508 U.S. 275 (1993) (defective
reasonable-doubt instruction); Vasquez v. Hillery, 474 U.S. 254
(1986) (racial discrimination in grand jury); Waller v. Georgia, 467
U.S. 39, 49 n.9 (1984) (denial of public trial); McKaskle v. Wiggins,
465 U.S. 168, 177 n.8 (1984) (denial of self-representation); Gideon

11

The failure to submit an element to the jury for its
decision, however, is not such an error. See California
v. Roy, 519 U.S. 2, 5 (1996) (per curiam) (“The specific
error at issue here—an error in the instruction that
defined the crime—is * * * as easily characterized as
a misdescription of an element of the crime[] as it is
characterized as an error of omission. No one claims
that the error * * * is of the ‘structural’ sort that
defies analysis by ‘harmless error’ standards.”; “The
case before us is a case for application of the ‘harmless
error’ standard.”) (quotation marks and citation omit-
ted). See also Johnson v. United States, 117 S. Ct. 1544,
1550 (1997) (“It is by no means clear” that the failure to
submit the element of materiality to the jury consti-
tutes structural error.).

Petitioner properly concedes (Pet. 16-19) that a fail-
ure to instruct the jury on an element is harmless if the
jury’s verdict on another element is “functionally
equivalent” to a finding by the jury as to the omitted
element. See, e.g., Sullivan v. Louisiana, 508 U.S. 275,
281 (1993). The question raised by the court of appeals’
decision is whether the failure to instruct the jury on an
element is also harmless if the existence of the element
“was not in dispute” (Pet. App. 12a), in the sense that it
was not contested by the defendant at trial and the
proof on the element was overwhelming.‘ Contrary to

v. Wainwright, 372 U.S. 335 (1963) (total denial of counsel); Tumey
v. Ohio, 273 U.S. 510 (1927) (biased judge).

* A number of the courts of appeals, including the court below,
employ a particularized definition of “materiality” applicable to the
offense of falsely subscribing to a tax return under 26 U.S.C. 7206.
See Pet. App. 12a (“Under § 7206(1), a ‘material matter’ is any
information necessary to a determination of a taxpayer's income
tax liability”; citing cases). Under that definition, a jury’s finding
that a defendant falsely stated the amount of his income will often

12

petitioner’s claim (Pet. 15-19), this Court’s cases do not
conclusively resolve the question.’ And the courts of
appeals have given conflicting answers. The Eleventh
Circuit has held that the failure to instruct on an ele-
ment is harmless error where the evidence leaves no
doubt on the issue and the issue is “uncontroverted.”
See United States v. Fern, 117 F.3d 1298, 1307-1308
(11th Cir. 1997); Pet. App. 1la-13a; cf. Hart v. Stagner,
935 F.2d 1007, 1013 (9th Cir. 1991) (mandatory pre-
sumption as to element harmless where, inter alia,
defendant did not contest element at trial). The

be the “functional equivalent” of a finding of materiality. Cf., e.g.,
ibid. (“any failure to report income is material”) (quoting United
States v. Holland, 880 F.2d 1091, 1096 (9th Cir. 1989)). Cases
arising under Section 7206(1) therefore may raise somewhat
distinctive harmless-error issues. The court of appeals in this case,
however, rested its harmlessness holding on the absence of a
dispute at trial on materiality, not on a conclusion that the jury’s
verdict on other elements was the “functional equivalent” of a
verdict on materiality under Section 7206. Pet. App. 12a. More
generally, the courts of appeals have reached conflicting
conclusions on the harmlessness of a failure to instruct on
materiality under Section 7206. Compare Pet. App. lla-13a (error
harmless where element not disputed), with, e.g., United States v.
DiRico, 78 F.3d 732, 737-738 (1st Cir. 1996) (error harmful).

5 Last Term the Court considered but did not decide the closely
related question whether the failure to instruct on an element is
harmless if the defendant affirmatively admits the existence of the
element. See Rogers v. United States, 118 S. Ct. 673 (1998) (dis-
missing writ as improvidently granted).

6 Petitioner suggests that the Second and Eighth Circuits have
also so held. See Pet. 10 n.4 (citing Bilzerian v. United States, 127
F.3d 237, 242 (2d Cir. 1997), petition for cert. pending, No. 97-1892,
and United States v. Raether, 82 F.3d 192, 194 (8th Cir. 1996)). In
Bilzerian, however, the court found the absence of a materiality
instruction on two counts to be harmless in light of the jury’s
finding on two other counts that the same statements were

13 ”

Fourth Circuit, in contrast, has reversed a conviction on
the ground that the district court failed to instruct on
an element, even though the element—whether a credit
union was federally insured—was not disputed and the
proof of the element was overwhelming. United States
v. Johnson, 71 F.3d 139, 141-145 (1995). Other courts
have also concluded that the failure to instruct the jury
on an element is reversible error even if “the jury could
not have reasonably arrived at any other conclusion.”
Waldemar v. United States, 106 F.3d 729, 732 (7th Cir.
1996) (court does not expressly indicate whether issue
was contested); see United States v. DeF ries, 129 F.3d
1293, 1311-1312 nn.12-13 (D.C. Cir. 1997) (issue
contested); United States v. DiRico, 78 F.3d 732, 735-
736 (1st Cir. 1996) (same). See also, e.g., United States
v. Raether, 82 F.3d 192, 194-195 (8th Cir. 1996).

The conflict merits review by this Court. Whether a
failure to instruct on an element is harmless error when
the element’s existence was not in dispute—as the
record in this case abundantly showed—is a recurring
and important question. The Court should grant the
petition to resolve the conflict among the courts of ap-
peals on that question.

material. 127 F.3d at 242. In Raether, the Eighth Circuit held that
the failure to instruct on an element required reversal, and
suggested that such errors can be harmless only if the jury has
made a finding that is functionally equivalent to the omitted
element. 82 F.3d at 194-195. Petitioner concedes (Pet. 16 n.9) the
validity of that form of harmless-error analysis.

14

CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General

JAMES K. ROBINSON
Assistant Attorney General

LOUIS M. FISCHER
Attorney

SEPTEMBER 1998

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0184%3A03. Public record. Not legal advice.