Petitioners Brief — Snyder v. United States

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No. 94-514

. Oli Gr — ene

Iu the Supreme Court of the Unite States

OCTOBER TERM, 1994

UNITED STATES OF AMERICA, PETITIONER

BRIEF FOR THE UNITED STATES

oral

MICHAEL R. DREERE?

Denuty soln Por Ces eral

RICHARD Hi. SEAMOD

lesiatant to the Nol

for General

KATHLEEN A. FRLTON

Attorne j

Department i Juatics

Washinator DC. 205%

QUESTION PRESENTED

Whether, in a prosecution under 18 U.S.C. 1001

for making false statements in a matter within the

jurisdiction of a federal agency, the materiality of

those statements is an issue to be decided by the court

rather than the jury.

(1)

Opinions below

Jurisdiction...

Statement. PSN ee oe

Summary of argument...

TABLE OF CONTENTS

Argument:

The materiality of a false statement under 18

U.S.C. 1001 is determined by the court rather than

the jury ...................

I. Materiality is determined by the court as a

matter of precedent and en

II.

Sinclair and Kungys establish that material-

ity is determined by the court...

The practice of having the court determine

materiality has deep historical roots ...__.

Section 1001, like its historical antecedents,

assigns the question of materiality to the

NN bet attra Ailiibcieiadsiindenieinisiaesicictctedricssinnscacoc.

The determination of materiality by the court is

RRO se cececeresesesenes

The historical allocation of materiality to the

court attests to its constitutionality

The principles of In re Winship do not re-

quire departure from longstanding practice..

The determination of materiality by the court

is not fundamentally unfair...

I Sa

Cases:

TABLE OF AUTHORITIES

Agnew V. United States, 165 U.S. 36 |

Apodaca V. Oregon, 406 U.S. 404 a e

(II)

Cases—Continued: Page

Barnes Vv. State, 15 Ohio C.C. 14 (1898) -...0022 2. 19

Braden V. United States, 365 U.S. 431 (1961) ........ 14

Bronston Vv. United States, 409 U.S. 352 (1978).... 25

Cabana V. Bullock, 474 U.S. 376 (1986) -.........0022.... 6

Carella v. California, 491 U.S. 268 (1989) 0.0000... 388

Carroll v. United States, 16 F.2d 951 (2d Cir.),

cert. denied, 273 U.S. 763 (1927) ..................... 13, 20, 25

Chaunt v. United States, 364 U.S. 350 (1960)........ 38

Commonwealth v. Lafferty, 419 A.2d 518 (Pa.

I ch 29

Commonwealth v. McDuffee, 398 N.E.2d 463 f

I ie A ital 30 E

Connecticut v. Johnson, 460 U.S. 73 (1988) .........-- 38

Cool v. United States, 409 U.S. 100 (1972) ............ 39

Cothran Vv. State, 39 Miss. 541 (1860) .....000020 2. 13, 18

County Court v. Allen, 442 U.S. 140 (1979)........ 33, 39

Crane V. Kentucky, 476 U.S. 683 (1986) ........000...... 43

Davis V. United States, 160 U.S. 469 (1895)........ 34, 36 :

Deutch Vv. United States, 367 U.S. 456 (1961)........ 14 ‘

Dowling v. United States, 493 U.S. 342 (1990).... 27, 40 ;

Egan V. United States, 52 App. D.C. 384 (1928)... 35

Estelle v. McGuire, 112 S. Ct. 475 (1991) ....0000.. 83

Fedorenko v. United States, 449 U.S. 490 (1981)... 14

Francis V. Franklin, 471 U.S. 307 (1985) -.00000000..... 38

Freidus v. United States, 223 F.2d 598 (D.C. Cir.

; REPRE RD RIPISIT IE ADONIS EUR er een 11, 25

Gordon v. State, 48 N.J.L. (19 Vroom) 611

RP NIRET TESCO TT ON REE SER yore OE DN 19

Gullett v. State, 523 So. 2d 296 (Miss. 1988)........ 29

Holland v. Illinois, 493 U.S. 474 (1990) .......00........ 28

Holt v. United States, 218 U.S. 245 (1910) ............. 36

Honda Motor Co. Vv. Oberg, 114 S. Ct. 2331

| EIN BRNE MSIE: LEI ALEC RNASE. SNES CA TENOR 26

Jackson V. Denno, 378 U.S. 368 (1964) ....00000000000.... 43

Jackson V. Virginia, 443 U.S. 307 (1979) ............... 38

Johnson V. Louisiana, 406 U.S. 356 (1972) ............. 28, 34

Kungys V. United States, 485 U.S. 759 (1988) ........ passim

Lawrence Vv. State, 2 Tex. Crim. 479 (1877)........ 18

Leary Vv. United States, 395 U.S. 6 (1969) ............. 40

Martin v. Ohio, 480 U.S. 228 (1987)................2.20-- 27

Cases—Continued: Page

Masinia Vv. United States, 296 F.2d 871 (8th Cir.

(ROE Ra eens ee - 30

McMillan v. Pennsylvania, 477 U.S. 79 (1986)... 39

Medina V. California, 112 S. Ct. 2572 (1992) ....27, 29, 40

Miles v. United States, 103 U.S. 304 (1881)............ 36

Molzof v. United States, 112 S. Ct. 711 (1992)........ 25

Morissette v. United States, 342 U.S. 246 (1952).. 24,38

Mullaney v. Wilbur, 421 U.S. 684 (1975) -....00000..... 39

Murray’s Lessee v. Hoboken Land & Improvement

Co., 59 U.S. (18 How.) 272 (1856) -....0002 2. 26

NLRB v. Amaz Coal Co., 453 U.S. 322 (1981)........ 25

Nelson Vv. State, 32 Ark. 192 (1877) ....00.0200200.20--. 18

New York Trust Co. v. Eisner, 256 U.S. 345

Lt TE SER ase SEEN ae ee 41

Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1

ET RECO SE een ee eC 27

Paritem Singh Poonian v. United States, 294

if 4 8 Bs |: | ee eee 11

Patterson v. New York, 432 U.S. 197 (1977)....27, 29, 33,

36, 39

People v. Hedgecock, 795 P.2d 1260 (Cal. 1990)... 30

People v. Hoag, 318 N.W.2d 579 (Mich. Ct. App.

EES RPA ae Pion cae NE ee AY Dee) Cae 29

People v. Jones, 1 Mich. N.P. (1 Brown) 141 (Cir.

NG REREEET ES AESO CU are Ee aT ee 18

People v. Lem You, 97 Cal. 224 (1898) .....0.0.0- oo. 19

People Vv. Powell, 513 N.E.2d 1162 (App. Ct. 1987),

appeal denied, 520 N.E.2d 3891 (lIIll.), cert.

denied, 486 U.S. 1025 (1988) 2000000. 29

People v. Smith, 597 P.2d 204 (Colo. 1979) ............. 29

Peters v. United States, 2 Okla. 188 (1894) ......... 19

Power V. Price, 16 Wend. 450 (N.Y. 1836) _........... 18

Regina Vv. Gibbon, Le. & Ca. 109, 169 Eng. Rep.

I 17

Regina v. Lavey, 3 Car. & K. 26, 175 Eng. Rep.

as 17

Regina V. Southwood, 1 F. & F. 356, 175 Eng. Rep.

a 17

Renan v. Commonwealth, 2 Ky. L. Rptr. 66

I ce taa ie 18-19

Russell v. United States, 369 U.S. 749 (1962)........ 14, 36

. Cases—Continued: Page

Sandstrom V. Montaru, 442 U.S. 510 (1979) .....2..... 33, 38

Santosky v. Kramer, 455 U.S. 745 (1982) ............. 33

Schad v. Arizona, 501 U.S. 624 (1991) ..........00......... 26, 27

Schneiderman v. United States, 320 U.S. 118

CID eicicnsvieniesisiessstaiiistnanalectoiesliaaaiae Mahia. 38

Sinclair v. United States, 279 U.S. 263 (1929) ........ passim

Sparf & Hansen v. United States, 156 U.S. 51

CIID asccsscnsssinisiectciitatinsaiinsisiciliindan pinata eipameentesailiail 33, 34, 35

State v. Albin, 720 P.2d 1256 (Ct. App.), cert.

denied, 719 P.2d 1267 (N.M. 1986) ..................... 29

State v. Anderson, 603 A.2d 928 (N.J. 1992) ........ 30 i

State v. Brown, 111 La. 170 (1908) ...........-.-......... 19 |

State v. Caywood, 96 Iowa 367 (1895) ..................... 19

State v. Daniels, 520 P.2d 178 (Wash. Ct. App.),

review denied, 84 Wash. 2d 1002 (1974) ............ 29

State v. Deets, 195 N.W.2d 118 (Iowa 1972)........ 29

State v. Edgington, 573 P.2d 1059 (Kan. 1978)... 29

State v. French, 509 N.W.2d 698 (S.D. 1993) ........ 29

State v. Hanson, 302 N.W.2d 399 (N.D. 1981)....... . 29

State v. Hare, 95 N.C. 682 (1886) .......................-...-. 19

State v. Lewis, 10 Kan. 157 (1872) ........................- 18

State v. Lunney, 400 A.2d 759 (Me. 1979) -............ 29

State v. Occhipinti, 358 So. 2d 1209 (La. 1978)... 19

State v. Roberson, 543 S.W.2d 817 (Mo. Ct. App.

ROOD anseinecievscieheohiticngliaiaen incl emia ae ae, 29

State v. Rosenbaum, No. 974-93, 1994 WL 665576

CHa, Cn, Sa ia cesta etecesicnene 29

State v. Spencer, 45 La. Ann. 1 (1892) ................... 19

State v. Strand, 720 P.2d 425 (Utah 1986) ............. 29 ;

State v. Thompson, 576 P.2d 1105 (Mont. 1978) .... 29

State v. West, 419 So. 2d 868 (La. 1982) ..:.............. 29

State v. Williams, 30 Mo. 364 (1860) ....................... 18

Steinman v. McWilliams, 6 Pa. (6 Barr) 170

1; | TEESE Tes Seem ien. Sake TRA One 18

Sullivan v. Louisiana, 113 S. Ct. 2078 (1998) ..6, 33, 34, 37

The Queen V. Courtney, 5 Ir. R.-C.L. 434 (Ct. Cr.

Dae, TED cccnsientemiah 17

Thompson V. People, 26 Colo. 496 (1899) ............... 19

Tot v. United States, 319 U.S. 463 (1948) .............. 40

Turner V. United States, 396 U.S. 398 (1970)........ 40

VII

Cases—Continued: Page

United States v. Abadi, 706 F.2d 178 (6th Cir.),

cert. denied, 464 U.S. 821 (1983) 15, 22, 37

United States v. Abroms, 947 F.2d 1241 (5th Cir.

1991), cert. denied, 112 S. Ct. 2992 (1992)........ 37

United States v. Alu, 246 F.2d 29 (2d Cir. 1957)... 30

United States v. Arch Trading Co., 987 F.2d 1087

sess dulttcrveme — 22

United States v. Bedgood, 49 F. 54 (S.D. Ala.

i eieesliegenin 19

United States v. Bramblett, 348 U.S. 503 (1955) .... 23, 24

United States v. Clark, 918 F.2d 843 (9th Cir.

hE eR 2. een 30

United States v. Corsino, 812 F.2d 26 (1st Cir.

ee hidteiilanons 11, 22

United States v. Cowing, 25 F. Cas. 680 (C.C.D.C.

i I aiitictticncniseninncennsinisnininicdeinnnacines 19-20

United States v. Daily, 921 F.2d 994 (10th Cir.

1990), cert. denied, 112 S. Ct. 405 (1991) .......... 22, 37

United States v. Elkin, 731 F.2d 1005 (2d Cir.),

cert. denied, 469 U.S. 822 (1984) -.........--000.....2.. 12

United States v. Flake, 746 F.2d 585 (9th Cir.

1984), cert. denied, 469 U.S. 1225 (1985) ........... 31

United States v. Forrest, 623 F.2d 1107 (5th Cir.),

cert. denied, 449 U.S. 924 (1980) ........0002222222.2..-. 30

United States v. Gaines, 690 F.2d 849 (11th Cir.

ETRE Ene ace EROS ee Te 31

United States v. Giacolone, 587 F.2d 5 (6th Cir.

1978), cert. denied, 442 U.S. 940 (1979) ............ 30

United States v. Gilliland, 312 U.S. 86 (1941)........ 24

United States v. Greber, 760 F.2d 68 (3d Cir.),

cert. denied, 474 U.S. 988 (1985) -...........2022...-.0- 22

United States v. Greenberg, 735 F.2d 29 (2d Cir.

(REARS SERA Re rea POR AT R Ee ON eee 31

United States v. Gribben, 984 F.2d 47 (2d Cir.

ales 22, 37

United States v. Hall, 44 F. 864 (S.D. Ga. 1890) .... 20

United States v. Hansen, 772 F.2d 940 (D.C. Cir.

1985), cert. denied, 475 U.S. 1045 (1986) ......... 23, 43, 44

"Inited States v. Hausmann, 711 F.2d 615 (5th Cir.

VIII

Cases—Continued: Page

United States v. Haynes, 573 F.2d 236 (5th Cir.),

cert. denied, 439 U.S. 850 (1978) -.........2..222220...--. 31

United States v. Johnson, 937 F.2d 392 (8th Cir.

| Sane LENORE, DI.» MORENE SOR FEN ae 2

United States v. Landsberg, 23 F. 585 (C.C.S.D.

| | EUR SER SENET ser eI Le ON OT 19

United States v. Lichenstein, 610 F.2d 1272 (5th

Cir.), cert. denied, 447 U.S. 907 (1980).............. 11

United States v. Lopez, 728 F.2d 1359 (11th Cir.), -

cert. denied, 469 U.S. 828 (1984) uw. 22-23

United States v. Martel, 792 F.2d 630 (7th Cir.

I isis eli Sclci-nia eect anieceadncebiahs a aecieiaraedenk tatasooaiat 22

United States v. Masters, 484 F. 2d 1251 (10th Cir

SI sins.) satcsnck sce nied deabetasb inde leebedaiemipicaid anklet thane 30-31

United States v. Null, 415 F.2d 1178 (4th Cir

I ie icccas ie ect ne eee ease 31

United States v. Paxson, 861 F.2d 730 (D.C. Cir

ERR PNRRRERS ener en Po er DN Deas oe Ane SERS ener Jr 87

United States v. Rivera, 448 F.2d 757 (7th Cir

|__| a ER RE: Pete ces aa Uae Neer e aTneS AERO 30

United States v. Rodgers, 466 U.S. 475 (1984)........ 24, 25

United States v. Romanow, 509 F.2d 26 (1st Cir.

a a a ee 31

United States v. Shinn, 14 F. 447 (C.C.D. Or

ETE Sa OIE PN PL POLO AAA LT RT 20

United States v. Silver, 235 F.2d 375 (2d Cir.),

cert. denied, 352 U.S. 880 (1956) -............00000000.. 12

United States v. Singleton, 54 F. 488 (S.D. Ala.

iii niciechddvdesideeauisadnctameusibatnenscoiimaintcondeaasidialadciadaes 18, 19

United States v. Staniforth, 971 F.2d 1355 (7th

RN ee ee 44

United States v. Strand, 617 F.2d-571 (10th Cir.),

cert. denied, 449 U.S. 841 (1980) —000000 0... 31

United States v. Taylor, 574 F.2d 232 (5th Cir.),

cert. denied, 439 U.S. 893 (1978) ......000000 ee. 31

United States v. Watson, 623 F.2d 1198 (7th Cir.

ERS Pe ee NT PCD De Ee 37

United States v. Whyte, 699 F.2d 375 (7th Cir

EINES Me eS. NT? ee 31

United States v. Valdez, 594 F.2d ‘125 (9th Cir

RIOR ETT ENTIRE DENS LEST RY ORY 5

Ci a a |

Cases—Continued: Page

United States v. Yermian, 468 U.S. 63 (1984)........ 23, 24

Victor v. Nebraska, 114 S. Ct. 1289 (1994)

Weinstock v. United States, 281 F.2d 699 (D.C.

Le a TN Oe nS ee ey 25, 41

Williams v. Florida, 399 U.S. 78 (1970) .........2...... 28

Williams v. State, 585 S.W.2d 842 (Ark. 1976)... 29

Wilson Vv. United States, 232 U.S. 563 (1914)........ 36

Winship, In re, 397 U.S. 3858 (1970) ...00200000.... 6, 10, 26, 31,

32, 33, 36

Wolfe v. State, 271 So. 2d 182 (Fla. 1972) ............. 29

Young V. People, 134 Ill. 37 (1890) 20000002. 19

Constitution, statutes and rules:

U.S. Const.:

(ESR ae OIE 25, 26, 28

Due Process Clause .....................----0--+-2--. 25, 26, 39

NN ytd Zisier acnsrseseiadaicasine 25, 28, 29, 30, 34

I italiane dati naabind ic icclcntie sas Ladiacies 34

Act of Oct. 23, 1918, ch. 194, 40 Stat. 1015 2000000000... 23

ee ee 23

Act of June 18, 1934, ch. 587, 48 Stat. 996... 24

Rev. Stat. $ 108 (2 U.S.C. W02)..........-..........--..-.-... 12, 13, 35

I 11, 14, 15, 24, 38

a 2

REE ee Ce Lene passim

SRE nee ee EOS eae 30

EA ee ae ees 30

I a 31

RO RD) | ee 43

EASE ee eae ee ee 43

Miscellaneous:

American Law Institute, Model Penal Code

(Tentative Draft No. 6) (1957) ..............--.0000...... 30

2 American Law Institute, Model Penal Code &

|, ar 30

2 J. Bishop, Commentaries on the Criminal Law:

FE SPRL acne ee 16

(7th ed. 1882) 000. Ree Cree! 20-21

2 J. Bishop, Commentaries on the Law of

Criminal Procedure (1866) ..............cccecceeececeeeeeeee 20

Miscellaneous—Continued: Page

4 W. Blackstone, Commentaries 14

Lee Eee 16

3 E. Coke, Institutes (6th ed. 1680) 0.0.0.0... 14

1 T. Cooley, A Treatise on Constitutional Limita-

tions (W. Carrington ed., 8th ed. 1927) .............. 34

4 B. Elliott & W. Elliott, A Treatise on the Law of

Evidence (1905) .

3 S. Greenleaf, A Treatise on the Law of

Evidence:

RSC RSE ne RR tes er ce 20

(14th ed. 1883)............. Scoebentaieeakscawsinsibacalinemeas 21

C8, RS a ne av 21

1 W. LaFave & J. Israel, Criminal Pesahere

I cukselestetacdigssaaiiaaedcen : . ae 43

J. May, The Law of Crimes (1881) uated aiomaeiidaiaisiicwces 22

2 E. McClain, A Treatise on the Criminal Law

5) SRERTU SOPRA RENE OR IRE CN ee Ne AS 22

Perjury Act 1911, §1(6), 12 Halsbury’s Statutes

of England and Wales (4th ed. 1994 reissue).... 18

W. Prosser, Handbook on the Law of Torts (4th :

ne I ei eel en 40

3 W. Russell, A Treatise on Crimes and '

Misdemeanors (5th ed. 1877) ............-.c-c-eeceeceeeeee 17 :

K.C. Sears & H. Weihofen, May’s Law of Crimes

I a 22

2 Z. Swift, A Digest of the Laws of the State of

CIIOTIOUE CIID orsitncdecoserneccncetsoicinctniarcetecinsonsuse 16

J. Thayer, A Preliminary Treatise on Evidence at

the Common Law (reprint 1969) (1898) ........... 34, 40

R. Underwood, False Witness: A Lawyer’s His-

tory of the Law of Perjury, 10 Ariz. J. Int’l &

ts ME CI ohio cnecttncttncdsescieoigrisadxounes 16

2 F. Wharton, A Treatise on Criminal Law

(J. Kerr od., 11th of. 1908) .................................. 21

F. Wharton, A Treatise on the Criminal Law of

the United States (2d ed. 1852) -........0..0....ce.. 16,

F. Wharton, A Treatise on the Law of Evidence in

Criminal Issues (O.N. Hilton ed., 10th ed.

| Oe ON RAEN ENOI I CPP aeRO INC SOE 6 SOA eieT wae SIC 21

SEE <ciainiistinncenininlcce

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-514

UNITED STATES OF AMERICA, PETITIONER

Vv.

MICHAEL E.. GAUDIN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the en bane court of appeals (Pet.

App. 1a-50a) is reported at 28 F.3d 948. The panel

opinion of the court of appeals (Pet. App. 51la-62a)

is reported at 997 F.2d 1267.

JURISDICTION

The judgment of the court of appeals was entered

on June 21, 1994. The petition for a writ of cer-

tiorari was filed on September 19, 1994, and was

(1)

granted on January 6, 1995 (J.A. 39). The jurisdic-

tion of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 1001 of Title 18 provides:

Whoever, in any matter within the jurisdiction

of any department or agency of the United States

knowingly and willfully falsifies, conceals or

covers up by any trick, scheme, or device a ma-

terial fact, or makes any false, fictitious or

fraudulent statements or representations, or

makes or uses any false writing or document

knowing the same to contain any false, fictitious

or fraudulent statement or entry, shall be fined

not more than $10,000 or imprisoned not more

than five years, or both.

STATEMENT

After a jury trial in the United States District |

Court for the District of Montana, respondent was

convicted on one count of equity skimming, in viola-

tion of 12 U.S.C. 1709-2, and 43 counts of making

false statements, in violation of 18 U.S.C. 1001. He

was sentenced to 36 months’ imprisonment on the

equity skimming count and to concurrent ten-month

terms of imprisonment on each of the 43 false state-

ment counts, to be followed by three years’ super-

vised release. He was also fined $2,200. A panel of

the United States Court of Appeals for the Ninth

Circuit affirmed the equity skimming conviction, but

reversed the false statement convictions. Pet. App.

10Of the 45 counts charging false statements under 18

U.S.C. 1001, one count was dismissed before the case went

to the jury, and another was dismissed at sentencing.

5la-62a. The Ninth Circuit granted the government’s

suggestion of rehearing en banc, and the en banc

court, like the panel, affirmed respondent’s equity

skimming conviction but reversed his false statement

convictions. Jd. at la-50a.

1. Respondent was a real estate broker and de-

veloper who purchased rental housing, renovated it,

and purported to sell it to buyers who took out loans

insured by the Federal Housing Administration

(FHA), an entity within the Department of Housing

and Urban Development (HUD). The sales were

fraudulent in two ways. First, respondent obtained

inflated appraisals of the housing in order to increase

the loans supplied by the lending institutions. Second,

the buyers had no intention of actually owning the

properties; they were “strawbuyers’—friends and

relatives of respondent recruited to pose as real

buyers. Respondent agreed to repurchase the prop-

erties from the strawbuyers at a $1,000 profit to

them. In addition, he routinely refunded the down

payments they made. Pet, App. 8a. After reacquiring

the properties, respondent defaulted on 29 federally

insured loans. Respondent made a profit of $982,003

from his scheme. Id. at 54a.

Counts 44 through 46 of the indictment charged

that respondent violated 18 U.S.C. 1001 by causing

false statements to be made on HUD/FHA form

92800-5. On that form, one of respondent’s co-

defendants certified the appraised value of the prop-

erty securing the loan. The government’s theory was

that the statements were false because the appraisals

were inflated.

Counts 2 through 17 and 19 through 42 charged

that respondent violated Section 1001 by making false

statements on HUD/FHA form HUD-1. The HUD-1

form was the settlement statement used in closing

the sales of the rental properties by respondent to

strawbuyers. The purpose of the HUD-1 form is to

show the source and recipient of the funds changing

hands at settlement. The HUD-1 form thus requires

u statement of the purchase price, the loan amount,

and the closing costs to be paid or received by the

seller and the buyer (called the “borrower” on the

form). The portion of the HUD-1 form on which

respondent was charged with making false statements

was line 303, which is at the bottom of the first page

of the form.’ Line 303 is under a caption that says

“cash at settlement from or to borrower’; line 303

itself consists of boxes to be checked indicating |

whether the borrower is to pay or receive money

and a blank space to indicate how much. Pet. App.

8a-4a.

On the HUD-1 forms for three of respondent’s

transactions, the box ‘‘to” the borrower was checked;

in one transaction, no box was checked; and in the |

rest, the box “from” the borrower was checked. Vari- :

ous amounts of money were entered on the blank

spaces on line 3038, ranging from relatively small

amounts to several thousand dollars. On each form, ;

respondent signed a certification that, “to the best of

my knowledge and belief, [the HUD-1 form] is a

true and accurate statement of all receipts and dis-

bursements made on my account or by me in this

transaction.” In all cases, however, the forms were

alse, because it was respondent, and not the

orrowfstrawbuyer, who actually paid or received

fete er ory see ee —

2 An example of that form is reproduced as an appendix

to the court of appeals’ en banc opinion. Pet. App. 24a-25a.

Se een

the cash amounts recorded on line 303. Pet. App.

4a-5a.

2. The district court instructed the jury that, to

convict respondent on the false statement counts, the

government was required to prove six elements: (1)

respondent made or caused to be made a writing that

contained a statement concerning a matter within

HUD’s jurisdiction; (2) the writing contained false,

fictitious, and fraudulent statements; (3) respondent

knew or should have known that the statement fell

within HUD’s jurisdiction; (4) respondent knew that

the writing contained false, fictitious, and fraudulent

statements; (5) respondent acted with the intent to

influence HUD; and (6) the statements were material

to the activities or decisions of HUD. J.A. 22-23,

27-28. With respect to the sixth element, the court

instructed the jury that the statements charged in

the indictment as false were material as a matter of

law. J.A. 24, 29; see Pet. App. 5a, 58a.’ Respondent

did not object to that instruction. Jd. at 19a. The

jury convicted him of the Section 1001 charges. Jd.

at 2a.

3. A panel of the court of appeals reversed the

false statement convictions. Pet. App. 5la-62a. It

held that, under United States v. Valdez, 594 F.2d

725, 729 (9th Cir. 1979), materiality in a Section

3 The jury was instructed as follows: “With reference to

the sixth element, I instruct you that the making of a false

statement to an agency of the United States Government is

not an offense unless the statement made is a material state-

ment. The issue of materiality, however, is not submitted

to you for your decision but rather is a matter for the deci-

sion of the court. You are instructed that the statements

charged in the indictment are material statements.” J.A.

24, 29.

1001 prosecution must be decided by the jury. Pet.

App. 57a-58a. It further held that the error was

plain—and therefore could be raised for the first

time on appeal—and was not harmless—and therefore

required reversal of the convictions. Jd. at 58a-62a.

4. On rehearing en banc, the Ninth Circuit, in a

6-5 ruling, reaffirmed its holding that materiality

under Section 1001 is an issue to be decided by the

jury. Pet. App. la-50a.

a. The majority noted that virtually every court

that has addressed the issue has held that materiality

under perjury and false statement statutes is a ques-

tion of law for determination by the judge. Pet. App.

5a. Those decisions, the court observed, generally

rely on Sinclair v. United States, 279 U.S. 263 (1929),

which held that, in a prosecution for failing to an-

swer a question “pertinent to the question under

inquiry [by Congress],” the issue of pertinency is

a legal issue for determination by the court. Jd. at

299. The court of appeals concluded, however, that

Sinclair does not compel the view that materiality

in a Section 1001 prosecution is an issue for the

court, because more recent decisions establish that

the Constitution entitles a defendant to a jury deter-

mination, beyond a reasonable doubt, of the facts

required to establish the elements of a crime. Pet.

App. 6a-9a (citing, inter alia, In re Winship, 397

U.S. 358, 364 (1970); Cabana v. Bullock, 474 U.S.

376, 384-385 (1986); and Sullivan v. Louisiana, 113

S. Ct. 2078, 2082 (1993)). The court concluded that

the proper decisionmaker on the issue of materiality

must be determined in light of those constitutional

considerations. Pet. App. 9a-14a.

The court then held that materiality is “an essential

element of the offense prohibited by 18 U.S.C. § 1001,”

rN cade Rf Hs Tae

because the statute itself makes materiality an ele-

ment of the crime. Pet. App. 1la. The court further

held that, under the prevailing test for materiality—

whether a statement “has a natural tendency to in-

fluence, or was capable of influencing, the decision

of the decisionmaking body to which it was ad-

dressed” (Kungys v. United States, 485 U.S.'759, 770

(1988) (internal quotation marks omitted) )—‘“[i]t

would seem that a factual inquiry would nearly al-

ways be necessary to determine what makes a differ-

ence to the decisionmaking body.” Pet. App. 12a.

While statutes or regulations could define what is

material, the court believed that, in the usual case,

materiality is a “mixed question of law and fact.”

Ibid.* The court concluded that if materiality is a

mixed question of law and fact under Section 1001,

“it must be submitted to the jury” under the Sixth

Amendment. Jd. at 18a, 14a. The court added that,

“Ta]lthough we are confronted in this case with only

the issue of whether materiality must be submitted

to the jury in section 1001 cases, it seems to be

courting constitutional error to withdraw the materi-

ality question from the jury in other perjury and

false statement cases.” Jd. at 14a.

The court of appeals recognized that this Court

held in Kungys that materiality is a question of law

to be resolved by the court, and that Kungys had

*The court stated, for example, that there were factual

issues as to the materiality to the FHA of the misstatements

on respondent’s settlement statements (i.e., HUD-1 forms).

Later in its opinion, the court detailed why it thought that

testimony of officials would be necessary to determine whether

the misstatements on the settlement statements would have

tended to influence any agency decision. Pet. App. 12a-14a.

eee: 8 ie

relied on Section 1001 cases in reaching that conclu-

sion. But the court distinguished Kungys as a

denaturalization case, not a criminal case. According

to the court of appeals, Kungys therefore did not have

to address the constitutional issue under Winship of

whether a court could determine an element of the

crime as a matter of law. Pet. App. 14a-17a.

Finally, the court held that the error of failing to

submit materiality to the jury is neither harmless nor

barred from appellate review in this case by the plain

error doctrine. Pet. App. 18a-22a.°

b. Judge Kozinski, writing for himself and four

other judges, dissented. Pet. App. 26a-50a. He noted

that, by holding that materiality is an issue for the

jury in a prosecution under Section 1001, the court

had “provoke[d] a conflict with every other regional

circuit.” Jd. at 26a. He also criticized the majority

for departing from the Court’s holdings in Sinclair

and Kungys, which he said are “directly on point.”

Id. at 28a. Finally, he explained that the majority

had misinterpreted Section 1001 in holding that the

issue of materiality depends on what facts actually

would be considered by a decisionmaking body. Id.

at 40a-43a.°

SUMMARY OF ARGUMENT

I. This Court’s decisions and historical practice

establish that the issue of materiality in a false state-

ment prosecution under 18 U.S.C. 1001 is a question

of law for the court, rather than an issue of fact for

5 The court of appeals’ holdings on plain error and harm-

less error are not at issue here.

® Judge Kozinski also disagreed with the majority that

the error in this case met the requirements of the plain

error doctrine. Pet. App. 26a, 48a-47a.

the jury. In Sinclair v. United States, 279 U.S. 268,

298 (1929), the Court observed that “the materiality

of what is falsely sworn, when an element in the

crime of perjury, is one for the court,” and relied on

that observation to reject the defendant’s argument

that, in a prosecution for an offense analogous to per-

jury, the issue of “pertinency” must be décided by

the jury. In Kungys v. United States, 485 U.S. 759,

772 (1988), the Court similarly relied on the histori-

cal treatment of “materiality” in holding that, under

the statute authorizing denaturalization for false

statements made in applying for citizenship, the ma-

teriality of those statements is an issue of law for

the court. The decisions in Sinclair and Kungys are

consistent with a vast body of law, both in England

and in this country, that has treated the issue of

materiality as a legal matter for decision by the

court.

Section 1001, like the statutes at issue in Sinclair

and Kungys, proscribes an offense that is analogous

to perjury; it punishes the intentional misrepresenta-

tion or concealment of facts that have the capacity to

corrupt governmental processes. In accordance with

Sinclair, Kungys, and the historical treatment of ma-

teriality in perjury prosecutions, Section 1001 is

properly understood to treat the determination of

materiality as a legal issue for the court.

II. The determination of materiality by the court

as an issue of law is consistent with the requirements

of the Constitution. Because the traditions in England

and this country overwhelmingly endorse the assign-

ment of the materiality determination to the court

rather than the jury, there is a strong presumption

that that practice is constitutional.

The court of appeals erred in holding that the de-

termination of materiality by the court under Section

1001 violates the right recognized in In re Winship,

397 U.S. 358 (1970), to a jury determination of the

facts constituting an offense beyond a reasonable

doubt. The Winship principle is no novelty, but was

well established at the time of the decision in Sinclair.

And, although the defendant in Sinclair relied on that

principle, the Court found it entirely valid to have

materiality issues resolved by the court as “ques-

tion[s] of law,” 279 U.S. at 298. The same analysis

holds true today: Because the Winship principle ap-

plies only to the facts necessary to constitute a crimi-

nal offense, it is inapplicable to the issue of material-

ity, which presents a question of law for decision by

the court.

Nor does it violate any other principle of funda-

mental fairness to entrust the resolution of material-

ity issues to the court. The court of appeals’ view

that the determination of materiality is a classic jury

question rests on a misunderstanding of the material-

ity requirement. Properly understood, that require-

ment focuses on the nature of the functions that the

agency is authorized to perform, and the capacity of

the misstatement to affect those functions. Those is-

sues present legal questions. In addition, the court

of appeals erred in stating that a question of law

cannot involve the assessment of any facts whatso-

ever. To the extent that materiality requires con-

sideration of facts, it is no different from other legal

issues—for example, the admissibility of evidence—

that are entrusted to the court and often require the

assessment of facts. Finally, the court of appeals

erred in attaching significance to the jury’s ability

to determine more complex questions than issues of

PE BOT eee

beeen

materiality. It is not the complexity, but the nature,

of the issue that determines whether it is decided by

the court or the jury. As this Court recently re-

affirmed in Kungys, materiality is a legal issue, and

the court may therefo’> determine it in a prosecution

under Section 1001 w.ichout depriving the defendant

of his right to a trial by jury.

ARGUMENT

THE MATERIALITY OF A FALSE STATEMENT

UNDER 18 U.S.C. 1001 IS DETERMINED BY THE

COURT RATHER THAN THE JURY

Section 1001 of Title 18 proscribes the making of

“any false, fictitious or fraudulent statements or rep-

resentations” in any matter within the jurisdiction

of a federal department or agency. Like the first

clause of Section 1001, which prohibits the conceal-

ment or covering up of information and is expressly

limited to “material fact[s],” the false statement pro-

vision has long been interpreted to contain an implicit

requirement of materiality.’ Against the background

7 See, e.g., United States v. Corsino, 812 F.2d 26, 30 (1st

Cir. 1987); United States v. Lichenstein, 610 F.2d 1272,

1278 (5th Cir.), cert. denied, 447 U.S. 907 (1980); Paritem

Singh Poonian v. United States, 294 F.2d 74, 75 (9th Cir.

1961); Freidus v. United States, 223 F.2d 598, 601 (D.C.

Cir. 1955) (‘‘The legislative purpose strongly implies that

only material false statements were contemplated, 7. e., state-

ments that could affect or influence the exercise of a govern-

mental function.”). That interpretation of Section 1001 ac-

cords with this Court’s treatment of similar language in 8

U.S.C. 1451(a) in Kungys v. United States, 485 U.S. 759,

767 (1988) (implying a materiality requirement into the mis-

representation provision governing denaturalization, based

in part on the express materiality requirement in conceal-

of this Court’s decisions and the historical treatment

of materiality in perjury statutes, the materiality ele-

ment of Section 1001 is properly resolved by the court

as an issue of law.

I. MATERIALITY IS DETERMINED BY THE COURT

AS A MATTER OF PRECEDENT AND HISTORY

This Court has twice addressed the materiality ele-

ment of statutes that punished misrepresentations

that could corrupt governmental processes. See Sin-

clair v. United States, 279 U.S. 268 (1929); Kungys

v. United States, 485 U.S. 759 (1988). Like this case,

Sinclair and Kungys presented the issue whether the

determination of materiality was a question of law,

to be decided by the court, or was instead a question

of fact, to be decided by the jury (or the court as

trier of fact). In both cases, the Court held that

materiality was a question of law for the court. That

conclusion reflects the judgment of history, and it is

equally applicable to Section 1001.

A. Sinclair And Kungys Establish That Materiality

Is Determined By The Court

1. In Sinclair, the defendant was charged under

Rev. Stat. § 102 (2 U.S.C. 192). Section 102 made

it a crime to refuse to answer “any question pertinent

to the question under inquiry” by a congressional

ment clause) ; id. at 784 n.1 (Stevens, J., concurring). The

Second Circuit, unlike the other circuits, does not consider

materiality to be an element of the false statement offense

created by the second clause of Section 1001, see United

States v. Elkin, 731 F.2d 1005, 1009, cert. denied, 469 U.S.

822 (1984) ; United States v. Silver, 235 F.2d 375, 377-378,

cert. denied, 352 U.S. 880 (1956), but it has held that the

materiality of a fact under the cover-up clause of Section

1001 is determined by the court, see Elkin, 731 F.2d at 1009.

<55

-committee. 279 U.S. at 284-285. The trial court held

that pertinency under Section 102 was a question of

law to be decided by the court rather than a question

of fact to be decided by the jury.* On appeal, the

court of appeals certified to this Court the question

whether pertinency under Section 102 was “a mixed

question of law and fact for the determination of the

Court and Jury, or was it solely a question of law?” °

This Court held that “[t]he question of pertinency

under § 102 was rightly decided by the court as one

of law.” Sinclair, 279 U.S. at 298. The Court drew

an analogy between the question of pertinency under

Section 102 and two other determinations. First,

pertinency “may be likened to [questions] concerning

relevancy at the trial of issues in court.” Ibid. The

Court noted that “it is uniformly held that relevancy

is a question of law.” Ibid. The Court also stated

that the question of pertinency was “not essentially

different from the question as to materiality of false

testimony charged as perjury.” Ibid. In that setting,

the Court observed, “the materiality of what is falsely

sworn, when an element in the crime of perjury, is

one for the court.” Ibid. (citing Carroll v. United

States, 16 F.2d 951 (2d Cir.), cert. denied, 273 U.S.

763 (1927); United States v. Singleton, 54 F. 488

(S.D. Ala. 1892) ; Cothran v. State, 39 Miss. 541, 547

(1860) ).

The Court determined that “[t]he reasons for hold-

ing relevancy and materiality to be questions of law

in cases such as those above referred to apply with

§ Transcript of Record at 114-115, Sinclair v. United States,

No. 555 (0.T. 1928).

° Certificate at 18, Sinclair v. United States, No. 555 (0.T.

1928); see also Sinclair, 279 U.S. at 284.

equal force to the determination of pertinency arising

under § 102.” Sinclair, 279 U.S. at 299. Accordingly,

the Court held that “[i]t would be incongruous and

contrary to well-established principles to leave the

determination of [pertinency] to a jury.” Jbid. In

several subsequent decisions involving prosecutions

under the same statute, the Court reiterated its hold-

ing in Sinclair that pertinency was a question of law

to be decided by the court. Russell v. United States,

369 U.S. 749, 755-756 (1962); Deutch v. United

States, 367 U.S. 456, 471 (1961); Braden v. United

States, 365 U.S. 431, 436-437 (1961).

2. The Court reaffirmed the teaching of Sinclair

in Kungys v. United States, supra, which addressed

the related question whether “materiality” was an

issue of law under a denaturalization provision. 485

U.S. at 772. Kungys arose under 8 U.S.C. 1451(a),

which provides for the denaturalization of citizens

whose citizenship orders and certificates of naturali-

zation “were illegally procured or were procured by

concealment of a material fact or by willful misrepre-

sentation.” The Court treated materiality as an im-

plied requirement of the ‘‘misrepresentation” clause

of Section 1451(a), 485 U.S. at 767 (citing Fedorenko

v. United States, 449 U.S. 490, 507 n.28 (1981) ), and

held that materiality was an issue of law for determi-

nation by the court.

The Court observed in Kungys that the inclusion of

a materiality requirement in false statement statutes

has ancient origins. 485 U.S. at 769 (citing 3 E.

Coke, Institutes 164 (6th ed. 1680), and 4 W. Black-

stone, Commentaries *137 (both discussing perjury

statutes)). The Court also noted that the “most

prominent” modern federal statute that punishes

“false statements to public officials” is 18 U.S.C. 1001,

Die cesemeeieamiammeaiaaaiaamaaiiiumaiiiliad

which, like its “common-law antecedents,” employs

the term “ ‘material.’” 485 U.S. at 769-770. After

defining the term “materiality” iri 8 U.S.C. 1451(a)

to accord with its “established meaning,” 485 U.S. at

770-771, the Court turned to whether “materiality

* * * is an issue of law, which we may decide for

ourselves, or one of fact, which must be decided by

the trial court.” Jd. at 772. “Here again,” the Court

said, “we see no reason not to follow what has been

done with the materiality requirement under other

statutes dealing with misrepresentations to public

officers.” Ibid.

To determine how materiality was treated in analo-

gous contexts, the Court in Kungys looked to Sinclair

and to case law concerning Section 1001. The Court

noted that Sinclair had held that “[t]he materiality

of what is falsely sworn, when an element in the

crime of perjury, is one for the court.” Kungys, 485

U.S. at 772 (quoting Sinclair, 279 U.S. at 298). The

Court also quoted the Sixth Circuit’s reasoning “in a

case involving 18 U.S.C. § 1001”:

[A]lthough the materiality of a statement rests

upon a factual evidentiary showing, the ultimate

finding of materiality turns on an interpretation

of substantive law. Since it is the court’s re-

sponsibility to interpret the substantive law, we

believe [it is proper to treat] the issue of ma-

teriality as a legal question.

Kungys, 485 U.S. at 772 (quoting, with bracketed

language added, United States v. Abadi, 706 F.2d

178, 180, cert. denied, 464 U.S. 821 (1983) ). Accord-

ingly, the Court in Kungys concluded, as it had in

Sinclair, that materiality under the false statement

statute before it was to be decided by a court as an

issue of law.

B. The Practice Of Having The Court Determine

Materiality Has Deep Historical Roots

The holding of Sinclair, relied on in Kungys, that

materiality requirements raise issues of law for de-

termination by a court is supported by a long histori-

cal tradition. The law has long punished false state-

ments to courts and to other governmental entities.

From the earliest times, however, punishment has

been reserved for false statements that are “material”

—i.e., statements that have the capacity to corrupt

governmental processes. Also, from early times, the

courts in England and this country have held that

materiality is an issue of law to be decided by the

court rather than the jury.

As this Court recognized in Kungys, in English

law the materiality of a false statement has always

been considered an element of perjury. 485 U.S. at

769. In the United States, the “English definition of

perjury was, in the main, embraced by the colonists.”

R. Underwood, False Witness: A Lawyer's History

of the Law of Perjury, 10 Ariz. J. Int’?] & Comp. L.

215, 245 (1993). In particular, the early American

treatises agreed that materiality is an element of per-

jury, see 2 J. Bishop, Commentaries on the Criminal

Law § 860, at 570 (1858); F. Wharton, A Treatise

on the Criminal Law of the United States 650-651

(2d ed. 1852); see also 2 Z. Swift, A Digest of the |

Laws of the State of Connecticut 320-322 (1823), !

even when a perjury statute does not expressly require

proof of materiality, see, e.g., Wharton, supra, at 648

n.(b); 48 C.J. Perjury §2, at 820-821 (1929).

The great weight of authority in England held that

materiality was a question for the court rather than

the jury. Although the issue does not appear to have

merited discussion in pre-nineteenth century deci-

—

sions, it became firmly established during that cen-

tury that materiality in perjury prosecutions was for

the court to decide. See 3 W. Russell, A Treatise on

Crimes and Misdemeanors 22 n.(w) (5th ed. 1877)

(“In every previous case materiality has been treated

as a question of law, and it is submitted that it is

clearly so.”). Indeed, the English courts only began

to discuss the issue after Lord Campbell decided to

let the jury determine whether a statement charged

as perjury was “material” in Regina v. Lavey, 3 Car.

& K. 26, 30, 175 Eng. Rep. 448, 450 (Q.B. 1850).

Judicial reaction was swift and negative. In The

Queen v. Courtney, 5 Ir. R.-C.L. 484 (Ct. Cr. App.

1856), for example, when the defendant relied on

Lavey for the proposition that the question of ma-

teriality was for the jury, all five judges rejected that

rule and stated in dictum that materiality was vir-

tually always a question for the judges. As Bishop

Greene noted, “I should have little hesitation in adopt-

ing the view of my Brethren, that it has been the

uniform practice of the Judge to detemine whether

the particular matter was or was not material.” Jd.

at 441-442.” In 1911, the issue was conclusively set-

Rep. 1324 (1861), a defendant convicted of perjury appealed,

claiming that the false testimony was not admissible. The

judges treated the issue as a question of law, and when the

Lavey case was mentioned, Bishop Channell stated that “I

never could understand that case * * *. [The facts] having

been ascertained, the question of materiality was no longer

for the jury.” Id. at 1326; see also Regina v. Southwood,

1 F. & F. 356, 356, 175 Eng. Rep. 762, 762 (1858) (“The

question of materiality is for me.”). American treatise writ-

ers also rejected Lord Campbell’s decision in Lavey. See

note 13, infra.

tled by the enactment of a statute providing that

“Tt]he question whether a statement on which per-

jury is assigned was material is a question of law to

be determined by the court of trial.” Perjury Act

1911, § 1(6), 12 Halsbury’s Statutes of England and

Wales 162 (4th ed. 1994 reissue).

The courts in this country observed the same prac-

tice. The state courts, with virtual unanimity,

adopted the principle of English law that materiality

in perjury prosecutions is a question for the court

rather than the jury. The earliest reported case on

the question appears to be Power v. Price, 16 Wend.

450 (N.Y. 1836). In Power, New York’s highest

court held that a trial judge had correctly reserved

the question of materiality to itself. The court ex-

plained (id. at 456) :

[T]he court was clearly right in instructing the

jury that the testimony given on the former trial

was proved to be material. The court, in this

part of its charge, did not take from the jury

the decision of any matter of fact which was

proper for their cognizance: it merely decided a

question of law, arising upon the proof of facts

as to which there was no dispute or contrariety

of testimony.

Subsequently, all but one nineteenth century state

court to consider the issue reached the same conclu-

sion.”

11 See Steinman V. McWilliams, 6 Pa. (6 Barr) 170, 177-178

(1847) ; Cothran v. State, 39 Miss. 541, 547 (1860); State

v. Williams, 30 Mo. 364, 367 (1860) ; People v. Jones, 1 Mich.

N.P. (1 Brown) 141, 141 (Cir. Ct. 1869); State v. Lewis,

10 Kan. 157, 160 (1872); Lawrence v. State, 2 Tex. Crim.

479, 483-484 (1877); Nelson v. State, 32 Ark. 192, 198-199

(1877) ; Renan v. Commonwealth, 2 Ky. L. Rptr. 66, 66

—

Federal courts in the nineteenth century similarly

held that materiality in a perjury case presented a

question of law for the court. United States v.

Bedgood, 49 F. 54, 60 (S.D. Ala. 1891) (“the ques-

tion of materiality is for the court to decide, in view

of the law as applicable to the particular proceed-

ing”); United States v. Singleton, 54 F. 488, 489

(S.D. Ala. 1892) (“the question of materiality is for

the court”); cf. United States v. Landsberg, 23 F.

585, 586-587 (C.C.S.D.N.Y. 1882) (on a motion for

new trial, judge adopts per se rule that false state-

ment is material if it was answering a question going

to witness’s credibility). The prevailing rule was

(1880) (syllabus) ; Gordon v. State, 48 N.J.L. (19 Vroom)

611, 612 (1886); State v. Hare, 95 N.C. 682 (1886) (im-

plicit) ; Young v. People, 134 Ill. 37, 42 (1890); People v.

Lem You, 97 Cal. 224, 228-280 (1893); State v. Caywood,

96 Iowa 367, 374 (1895); Peters v. United States, 2 Okla.

138, 144 (1894) (applying federal law) ; Barnes v. State, 15

Ohio C.C. 14, 25-26 (1898); Thompson v. People, 26 Colo.

496, 504 (1899).

The sole exception was Louisiana, which initially adopted

Lord Campbell’s view that the question of materiality was

for the jury, in part because “[t]he jury in Louisiana are

judges of the law and the fact.” State v. Spencer, 45 La.

Ann. 1, 11-12 (1892). Soon thereafter, however, Louisiana

retreated from the position that the jury should determine

materiality, see State v. Brown, 111 La. 170, 172 (1903),

and ultimately adopted the majority rule that materiality is

a question of law for the court, see State v. Occhipinti, 358

So. 2d 1209, 1210 (La. 1978).

12 In one early federal case, the report states that the gov-

ernment, relying on an unreported decision by Judge Lomax

(a judge of the General Court of Virginia), argued that ma-

teriality was a fact to be ascertained by the jury. The court,

however, did not reach the issue. United States v. Cowing,

summed up in Carroll v. United States, supra, which

stated that whether the indictment charged “any

‘material’ matter was a question of law for the court,

and was not for the jury,” which is the same “rule

[that] obtains in the state courts.” 16 F.2d at 954.

The Carroll decision was one of the perjury cases

cited with approval by this Court in Sinclair. See

279 U.S. at 298 (citing Carroll).

Nineteenth century treatise writers confirmed that /

the issue of materiality in a perjury prosecution pre-

sented a question of law for the court to decide. As

one leading treatise stated, “[t]he facts being proved,

the question, whether they are material or not, is a

question of law.” 3 S. Greenleaf, A Treatise on the

Law of Evidence § 195, at 183 n.5 (2d ed. 1853);

accord Wharton, supra, at 656 (“On the question of

perjury, the materiality of the facts testified to, is a

question of law.”); 2 J. Bishop, Commentaries on the

Law of Criminal Procedure § 874, at 503-504 (1866)

(“assuming this evidence [of the testimony’s mate-

riality] to be true, the question of materiality be-

comes one of law for the court, not of fact for the

jury”); see also 2 J. Bishop, Commentaries on the

25 F. Cas. 680, 681 (C.C.D.C. 1835) (No. 14,880). Some

federal decisions indicate that if the determination of ma-

teriality implicates disputed factual issues, the jury should

determine those issues, but that the application of law to

those facts remains the province of the court. See United

States v. Shinn, 14 F. 447, 452 (C.C.D. Or. 1882) (“Where

the facts are disputed, the question should be left to the jury,

with proper instructions from the court. But when the facts '

are admitted the question of materiality is one for the

court.”) ; United States v. Hall, 44 F. 864, 867 (S.D. Ga.

1890) (jury charge: ‘I charge you further, if you find from

the evidence that [certain facts existed] his testimony on the

}

Criminal Law § 1039a, at 593 (7th ed. 1882).% Some

commentators noted the jury’s role in resolving fac-

tual disputes antecedent to the materiality determina-

tion but regarded it as settled by the end of the cen-

tury that the ultimate determination of whether a

false statement was material in a perjury case be-

longed to the court.”

occasion described would be in a matter material to the

issue.”’).

13 After Lord Campbell’s decision in Lavey became known,

the treatise writers incorporated it into their discussions. For

example, Greenleaf, while retaining his previous statement

that materiality was a question of law, also reported that

“i]t seems that the materiality of the matter assigned is

a question for the jury. [citing, among other authorities,

Lavey]. But see apparently contra, [two other English

cases in which the court found materiality was for the

judge].” 3S. Greenleaf, A Treatise on the Law of Evidence

§ 195, at 189 n.(b) (14th ed. 1883). By 1899, Greenleaf

again was reporting that “[w]hether the evidence was ma-

trial or not was a question entirely for the court, and not

at all for the jury.” 3 S. Greenleaf, A Treatise on the Law

of Evidence § 195, at 196 n.2 (16th ed. 1899).

Similarly, Wharton rejected Lavey, explaining:

According to Lord Campbell, the materiality of the al-

leged false oath is for the jury. But the weight of

authority is that it would be error to leave the question

to the jury without definite instructions from the court.

And the proper course is for the court, assuming all the

evidence to be true, to determine whether the particular

article of evidence is or is not material. Any dispute as

to the truth of facts, however, must go to the jury.

2 F. Wharton, A Treatise on Criminal Law § 1548, at 170

(J. Kerr ed., 11th ed. 1912) (footnotes omitted) ; see also

F. Wharton, A Treatise on the Law of Evidence in Criminal

Issues § 86, at 270 (O.N. Hilton ed., 10th ed. 1912).

In addition to sources previously cited in the text and

notes 12 and 18, supra, see, e.g., 4 B. Elliott & W. Elliott, A

C. Section 1001, Like Its Historical Antecedents, As-

signs The Question Of Materiality To The Court

In accordance with Sinclair and Kungys, every

regional court of appeals except the Ninth Circuit

has held that materiality under 18 U.S.C. 1001 is a

question of law for the court.” That conclusion is

Treatise on the Law of Evidence § 3073, at 386 (1905) (‘“‘Ques-

tions of fact are for the jury in perjury cases as in other crim-

inal cases. But the question as to whether the alleged false tes-

timony or oath upon which perjury is assigned is material

within the rule in regard to perjury is generally held to be

a question for the court.”) ; 2 E. McClain, A Treatise on the

Criminal Law § 866, at 89 (1897) (‘“‘The question as to

whether the alleged false oath was material to the issues in

the case in which it was taken is for the court and not the

jury.’”). Only one treatise writer appeared to equivocate on

that issue. See J. May, The Law of Crimes § 188, at 205

(1881) (“Whether materiality is a question of law for the

court or of fact for the jury, is a point upon which the

authorities are about equally divided.”). But later editions

of May’s treatise found the issue to be resolved in favor of

the court deciding materiality. See K. C. Sears & H. Weihofen,

May’s Law of Crimes § 98, at 119 (4th ed. 1938) (‘Whether

materiality is a question of law for the court, or of fact for

a jury, is a point upon which the authorities are now gen-

erally agreed. It belongs to the court.’’).

15 See United States v. Corsino, 812 F.2d 26, 31 n.3 (1st

Cir. 1987); United States v. Gribben, 984 F.2d 47, 50-51

(2d Cir. 1993) ; United States v. Greber, 760 F.2d 68, 73 (3d

Cir.), cert. denied, 474 U.S. 988 (1985); United States v.

Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993) ;

United States v. Hausmann, 711 F.2d 615, 616 (5th Cir.

1983) ; United States v. Abadi, 706 F.2d 178, 180 (6th Cir.),

cert. denied, 464 U.S. 821 (1983); United States v. Martel,

792 F.2d 630, 637 (7th Cir. 1986) ; United States v. Johnson,

937 F.2d 392, 396 (8th Cir. 1991); United States v. Daily,

921 F.2d 994, 1004-1006 (10th Cir. 1990), cert. denied, 112

S. Ct. 405 (1991); United States v. Lopez, 728 F.2d 1359,

RRL wie an at ole MT rnc,

correct. The requirement of materiality in statutes

criminalizing false statements to public officials stems

from well-recognized common law traditions, see

Kungys, 485 U.S. at 769, and, as shown above, it

was settled by the beginning of this century that the

issue of materiality in perjury prosecutions was a

question to be decided by the court rather than the

jury. Nothing in the text or history of Section 1001

suggests that Congress meant to depart from that

tradition.

While the original antecedent of Section 1001 was

enacted in 1863, see United States v. Bramblett, 348

U.S. 503, 504 (1955), the term “material” was first

introduced into the provision that became Section

1001 by the Act of Oct. 23, 1918, ch. 194, 40 Stat.

1015. See United States vy. Yermian, 468 U.S. 63,

70 & n.8 (1984).*° By that time, prominent authori-

ties had made clear that materiality in perjury stat-

utes was an issue for the court. See pp. 16-21, supra.

1362 n.4 (11th Cir.), cert. denied, 469 U.S. 328 (1984) ;

United States v. Hansen, 772 F.2d 940, 950-951 (D.C. Cir.

1985) (Scalia, J.), cert. denied, 475 U.S. 1045 (1986).

7® As amended in 1918, Section 35 of the Criminal Code in

relevant part punished with a fine, imprisonment, or both

(40 Stat. 1015-1016 (emphasis added) )

whoever, for the purpose of obtaining or aiding to obtain

the payment or approval of [a false, fictitious, or fraud-

ulent] claim, or for the purpose and with the intent

of cheating and swindling or defrauding the Government

of the United States, or any department thereof, or

any corporation in which the United States of America

is a stockholder, shall knowingly and willfully falsify

or conceal or cover up by any trick, scheme, or device

a material fact, or make or cause to be made any false or

fraudulent statements or representations.

The predecessor of Section 1001 was made explicitly

applicable to false statements “in any matter within

the jurisdiction” of the federal government and put

substantially in its current form by the Act of June

18, 1934, ch. 587, 48 Stat. 996; see Yermian, 468

U.S. at 70-73; United States v. Rodgers, 466 U.S.

475, 477-478 (1984) ; Bramblett, 348 U.S. at 506-508;

United States v. Gilliland, 312 U.S. 86, 92-95 (1941).

At no point did Congress suggest that it intended

to veer from the prevailing common law treatment

of materiality as an issue of law for resolution by

the court. In the absence of evidence to the contrary,

Congress is presumed to have adopted that tradition

as part of the “cluster of ideas” surrounding the con-

cept of materiality in analogous state and federal

perjury statutes. See Morissette v. United States,

342 U.S. 246, 263 (1952) (“[W]here Congress bor-

rows terms of art in which are accumulated the legal

tradition and meaning of centuries of practice, it

presumably knows and adopts the cluster of ideas

that were attached to each borrowed word in the

body of learning from which it was taken and the

meaning its use will convey to the judicial mind

unless otherwise instructed.’’).

Indeed, in Kungys this Court applied the same

reasoning in construing the term “materiality” in

8 U.S.C. 1451(a). After quoting the definition of

materiality applied under other federal statutes, in-

cluding Section 1001, the Court held that “[w]here

Congress uses terms that have accumulated scttled

meaning under either equity or the common law, a

court must infer, unless the statute otherwise dic-

tates, that Congress means to incorporate the estab-

lished meaning of these terms.” 485 U.S. at 770

(quoting NLRB v. Amazx Coal Co., 453 U.S. 322,

329 (1981) ); see also Molzof v. United States, 112

S. Ct. 711, 716 (1992). Perjury laws and Section

1001 have similar purposes,” and the two statutes

employ the requirement of materiality for a similar

function. In light of the uniform treatment in per-

jury statutes of materiality as a question for the

court, Section 1001 is correctly read to assign the

determination of materiality to the court as an issue

of law.

Il. THE DETERMINATION OF MATERIALITY BY

THE COURT IS CONSTITUTIONAL

The court of appeals concluded that the resolution

of the issue of materiality by the court rather than

the jury violates a criminal defendant’s right under

the Fifth Amendment’s Due Process Clause and the

Sixth Amendment’s jury trial guarantee to have “the

7 Both statutes punish falsehoods that have the capacity

to corrupt decisionmaking by government bodies or tribunals.

See United States v. Rodgers, 466 U.S. at 480 (Section 1001

“protect[s] the authorized functions of governmental depart-

ments and agencies from the perversion which might result

from * * * deceptive practices”) ; Bronston v. United States,

409 U.S. 352, 357 (1973) (perjury statute “keep[s] the

course of justice free from the pollution of perjury”) ; Freidus

v. United States, 228 F.2d 598, 601 n.10 (D.C. Cir. 1955)

(noting close kinship between Section 1001 and perjury

statutes).

8TIn each setting, the materiality requirement excludes

from liability statements that, although false, could not tend

to undermine the governmental process. Compare, e.g., Wein-

stock v. United States, 231 F.2d 699, 701-702 & n.6 (D.C.

Cir. 1956) (construing Section 1001) with Carroll, 16 F.2d

at 953 (construing perjury statute).

facts essential to establish the elements of a crime

* * * decided by a jury” beyond a reasonable doubt.

Pet. App. 6a. That conclusion is unfounded. The

long tradition in this country that the issue of ma-

teriality is determined by the court as a matter of

law creates a strong presumption that the practice

is constitutional. In this case, neither the modern

articulation of the jury’s role in a criminal case in

decisions such as In re Winship, 397 U.S. 358 (1970),

nor considerations of fairness provide a basis for

invalidating the traditional rule under the Constitu-

tion. The question of materiality requires determina-

tions of law, and those legal issues fall outside of the

jury’s classic province.

A. The Historical Allocation Of Materiality To The

Court Attests To Its Constitutionality

“As this Court has stated from its first Due

Process cases, traditional practice provides a touch-

stone for constitutional analysis.” Honda Motor Co.

v. Oberg, 114 S. Ct. 2331, 2339 (1994); see Murray’s

Lessee v. Hoboken Land & Improvement Co., 59 U.S.

(18 How.) 272 (1856). That principle has often

been applied in evaluating constitutional attacks on

criminal laws and procedures. For example, this

Court has given traditional practice great weight in

due process challenges involving “the permissible

limits in defining criminal conduct.” Schad v. Ari-

zona, 501 U.S. 624, 631 (1991) (plurality opinion).

It has also relied heavily on historical practice in con-

sidering due process challenges to the manner in

19The Due Process Clause of the Fifth Amendment pro-

vides: “‘No person shall * * * be deprived of life, liberty, or

property, without due process of law.”

hit ee ee eee ee ae ee

———————————

which a State has allocated the burden of proof under

a criminal statute. See, e.g., Medina v. California,

112 S. Ct. 2572, 2577-2578 (1992); Martin v. Ohio,

480 U.S. 228, 235-236 (1987); Patterson v. New

York, 432 U.S. 197, 202-211 (1977). Such reliance

on history “recognize[s] the high probability that

legal definitions, and the practices comporting with

them, are unlikely to endure for long, or to retain

wide acceptance, if they are at odds with notions of

fairness and rationality sufficiently fundamental to

be comprehended in due process.” Schad, 501 U.S. at

642 (plurality opinion); Medina, 112 S. Ct. at 2582

(O’Connor, J., concurring in the judgment) (“his-

torical pedigree can give a procedural practice a pre-

sumption of constitutionality”); see Pacific Mutual

Life Ins. Co. v. Haslip, 499 U.S. 1, 17-18 (1991).

Historical endorsement of a practice challenged

on due process grounds is not dispositive of the chal-

lenge. See Medina, 112 S. Ct. at 2578; id. at 2582

(O’Connor, J., concurring in the judgment); Schad,

501 U.S. at 642-643 (plurality opinion). The resolu-

tion of the due process issue also encompasses an

inquiry into whether the practice “transgresses any

recognized principle of ‘fundamental fairness.’ ”

Medina, 112 8S. Ct. at 2578 (quoting Dowling v.

United States, 493 U.S. 342, 352 (1990) ); see Schad,

501 U.S. at 642 (plurality opinion). When the en-

dorsement of history is as longstanding and wide-

spread as it is here, however, it is not likely that

the practice “offends some principle of justice so

rooted in the traditions and conscience of our people

as to be ranked as fundamental.” Medina, 112 S. Ct.

at 2577 (quoting Patterson, 432 U.S. at 202).

History is likewise significant in deciding whether

the determination of materiality by the court in-

fringes the jury trial guarantee of the Sixth Amend-

ment.” This Court has construed the constitutional

right to a jury trial in light of the practices observed

in criminal jury trials when the Constitution was

ratified and in later years. See Holland v. Illinois,

493 U.S. 474, 481 (1990) (relying on “unbroken

tradition” of common and statutory law in constru-

ing the right to an “impartial jury’). “The process

of determining the content of the Sixth Amendment

right to jury trial has long been one of careful evalu-

ation of, and strict adherence to the limitations on,

that right as it was known in criminal trials at com-

mon law.” Johnson vy. Louisiana, 406 U.S. 356, 370

n.6 (1972) (opinion of Powell, J.). When this Court

has “turn[ed] to other than purely historical con-

siderations,” it has done so in addressing the consti-

tutionality of departures from the common law char-

acteristics of a jury. Williams v. Florida, 399 U.S.

78 (1970) (upholding criminal jury composed of

fewer than 12 jurors); see Apodaca v. Oregon, 406

U.S. 404, 407-414 (1972) (opinion of White, J.)

(upholding state law providing for less than unani-

mous verdict).

In this case, historical practice creates a powerful

presumption that neither the Fifth nor the Sixth

Amendment requires a jury determination of ma-

teriality. As we have discussed, the nearly universal

approach to the issue in English and American cases

and commentary assigned the determination of ma-

teriality in a perjury case to the court as a question

20The Sixth Amendment provides in relevant part: “In

all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed.”

of law. See pp. 16-21, supra. This Court reaffirmed

that view in Sinclair v. United States, swpra, based

on the long historical tradition and the rationales

supporting it. And “[c]Jontemporary practice, while

of limited relevance to the due process inquiry,”

Medina, 112 S. Ct. at 2578, see Patterson, 432 U.S.

at 211, has generally adhered to that approach, as

reflected in decisions of the state courts” and the

71 In the last 25 years, 11 state supreme courts have held

that materiality is an issue for the judge. See State v. Rosen-

baum, No. 974-93, 1994 WL 665576 (Tex. Crim. App. 1994)

(en banc) ; Gullett v. State, 523 So. 2d 296, 300 (Miss. 1988) ;

State v. West, 419 So. 2d 868, 874 (La. 1982) ; State v. Hanson,

302 N.W.2d 399, 401 (N.D. 1981) ; State v. Lunney, 400 A.2d

759, 763 (Me. 1979) (construing state perjury statute ex-

pressly assigning materiality to court); State v. Thompson,

576 P.2d 1105, 1107 (Mont. 1978) (same) ; State v. Edging-

ton, 573 P.2d 1059, 1064 (Kan. 1978) ; Williams v. State,

535 S.W.2d 842, 845 (Ark. 1976) ; State v. Deets, 195 N.W.2d

118, 122 (Iowa 1972); Wolfe v. State, 271 So. 2d 132, 133

(Fla. 1972). During the same period, intermediate appellate

courts in six other States reached the same conclusion. People

Vv. Powell, 513 N.E.2d 1162, 1165-1166 (Ill. App. Ct. 1987),

appeal denied, 520 N.E.2d 391 (Il), cert. denied, 486 U.S.

1025 (1988) ; State v. Albin, 720 P.2d 1256, 1259 (N.M. Ct.

App.), cert denied, 719 P.2d 1267 (N.M. 1986) ; People v.

Hoag, 318 N.W.2d 579, 583 (Mich. Ct. App. 1982) ; Common-

wealth Vv. Lafferty, 419 A.2d 518, 521 (Pa. Super. Ct. 1980) ;

State v. Roberson, 543 S.W.2d 817, 820 (Mo. Ct. App. 1976) ;

State v. Daniels, 520 P.2d 178, 179 (Wash. Ct. App.), review

denied, 84 Wash. 2d 1002 (1974). In three additional States,

the state supreme court made the same holding while reject-

ing a claim that allocating materiality to the judge violated

the defendant’s due process and Sixth Amendment rights.

See State v. French, 509 N.W.2d 698, 700-702 (S.D. 1993) ;

State v. Strand, 720 P.2d 425, 431 (Utah 1986); People v.

Smith, 597 P.2d 204, 205-206 (Colo. 1979). The highest

courts in only two States have found that leaving the ques-

federal courts.”

tion of materiality for the judge violates due process and the

Sixth Amendment. See State v. Anderson, 603 A.2d 928,

932-935 (N.J. 1992) ; Commonwealth v. McDuffee, 398 N.E.2d

463, 467-470 (Mass. 1979). Contrary to the court of appeals’

suggestion, Pet. App. 9a, California has not definitively re-

solved the issue. See People v. Hedgecock, 795 P.2d 1260,

1267 (Cal. 1990) (addressing “materiality” under campaign

finance law; distinguishing materiality in perjury statutes,

and “express[ing] no view whether in perjury prosecutions

based on false testimony at a judicial or legislative proceed-

ing the question of materiality is a jury issue’).

We also note that the perjury statute in the Model Penal

Code states: ‘Whether a falsification is material in a given

factual situation is a question of law.” 2 American Law In-

stitute, Model Penal Code & Commentaries § 241.1(2), at

93 (1980). Likewise, the perjury statute proposed by the

National Conference of Commissioners on Uniform State

Laws states: “[W]hether a statement was material * * * is

a question of law to be determined by the court.” Model

Act on Perjury §4(2). See American Law Institute, Model

Penal Code (Tentative Draft No. 6) App., at 160 (1957).

22 Every regional court of appeals, including the Ninth

Circuit, has held that materiality is a question of law to be

decided by the court in prosecutions under 18 U.S.C. 1623,

which punishes the making of false statements to a court or

grand jury. See Pet. App. 324-33a (citing cases). There is

similar uniformity with respect to other statutes punishing

false statements to governmental entities. The Ninth Circuit

and six other courts of appeals have held that materiality

of perjured statements under 18 U.S.C. 1621 is decided by

the court. See United States v. Clark, 918 F.2d 843, 845-846

(9th Cir. 1990); United States v. Alu, 246 F.2d 29, 32 (2d

Cir. 1957) ; United States v. Forrest, 623 F.2d 1107, 1112-

1113 (5th Cir.), cert. denied, 449 U.S. 924 (1980); United

States v. Giacolone, 587 F.2d 5, 6 (6th Cir. 1978), cert. denied,

442 U.S. 940 (1979); United States v. Rivera, 448 F.2d

757, 758 (7th Cir. 1971); Masinia v. United States, 296

F.2d 871, 874 (8th Cir. 1961); United States v. Masters,

Against that background, it would take a consider-

able showing of fundamental unfairness to justify

rejection of the historical approach to materiality.

Here, no such showing has been made.

B. The Principles Of In Re Winship Do Not Require

Departure From Longstanding Practice

The court of appeals declined to follow this Court’s

statement in Sinclair that materiality is a question

for the court rather than the jury, because the court

believed that Sinclair does not “survive the more

recent holdings of the Supreme Court that the Sixth

Amendment and the Due Process Clause require that

the facts essential to establish the elements of a

crime must be decided by a jury.” Pet. App. 6a.

The Ninth Circuit identified the earliest decision so

holding as In re Winship, supra. See Pet. App. 6a;

see also id. at 9a, 15a-16a. Winship, however, pro-

vides no support for casting aside the historical treat-

ment of materiality as an issue of law for the court.

484 F.2d 1251, 1254 (10th Cir. 1973). Seven courts of

appeals, including the Ninth Circuit, have also held that

materiality is for the court to decide in cases of false state-

ments in tax returns, 26 U.S.C. 7206(1). See United States

Vv. Romanow, 509 F.2d 26, 28 (1st Cir. 1975): United States

Vv. Greenberg, 735 F.2d 29, 31 (2d Cir. 1984) ; United States

Vv. Taylor, 574 F.2d 232, 235 (5th Cir.), cert. denied, 439 U.S.

893 (1978); United States v. Haynes, 573 F.2d 236, 240

(5th Cir.), cert. denied, 439 U.S. 850 (1978); United States

Vv. Whyte, 699 F.2d 375, 379 (7th Cir. 1983); United States

V. Flake, 746 F.2d 535, 537-538 (9th Cir. 1984), cert. denied,

469 U.S. 1225 (1985) ; United States v. Strand, 617 F.2d 571,

573-574 (10th Cir.), cert. denied, 449 U.S. 841 (1980);

United States v. Gaines, 690 F.2d 849, 858 (11th Cir. 1982) ;

but see United States v. Null, 415 F.2d 1178, 1181 (4th Cir.

1969) (submitting issue to jury).

1. Winship concerned whether, in determining

whether a juvenile had committed a crime and should

therefore be declared a delinquent, a State had to

meet the standard of proof applicable in a criminal

trial—proof beyond a reasonable doubt. 397 U.S. at

359. As an initial matter, the Court confirmed that

due process requires the government to meet the

reasonable doubt standard in a criminal trial.

Lest there remain any doubt about the con-

stitutional stature of the reasonable-doubt stand-

ard, 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.

Id. at 364. The Court then determined that the

“same considerations” that require proof beyond a

reasonable doubt in criminal trials also require the

application of that standard in juvenile delinquency

proceedings. Jd. at 365.

The holding of Winship has no direct application

in this case; the question presented here does not

concern the degree of proof that the government

must meet with regard to a particular factual ques-

tion in a criminal proceeding. Instead, it concerns

whether the issue of materiality is one of law for

decision by the court, or one of fact for decision by

the jury. Winship did not address the standards for

distinguishing questions of law from issues of fact.”

23 No decision of this Court has applied Winship for that

purpose. Most decisions of this Court applying Winship fall

into one of two categories, each of which concerns the burden

of proof. In one category are cases in which a criminal

defendant challenges the manner in which a State has allo-

Although the Winship principle is sometimes

broadly described as requiring the jury to decide “all

the elements of a criminal offense,” e.g., Estelle v.

McGuire, 112 S. Ct. 475, 480 (1991); see Victor v.

Nebraska, 114 S. Ct. 1239, 1242 (1994); Patterson

v. New York, 432 U.S. 197, 210 (1977), the prin-

ciple actually applies to only the factual components

of the essential elements. Pet. App. 8a n.1. As the

Court explained in Sullivan v. Louisiana, 113 S. Ct.

2078 (1993), “[t]he prosecution bears the burden

of proving all elements of the offense charged, and

must persuade the factfinder beyond a reasonable

doubt of the facts necessary to establish each of

those elements.” Jd. at 2080 (internal quotation

marks and citations omitted); see also County Court

v. Allen, 442 U.S. 140, 156 (1979) (equating “an

element of the crime” to “an ‘ultimate’ or ‘essential’

fact,” as distinguished from “ ‘evidentiary’ or ‘basic’

facts’); Patterson, 482 U.S. at 206 (due process

requires that “the facts constituting a crime [be]

established beyond a reasonable doubt’); Winship,

397 U.S. at 364 (reasonable doubt standard reduces

margin of “error in factfinding” for defendant).

The principle that the jury decides the facts con-

stituting an offense, while the court decides issues of

law, was established long before Winship. It was

settled by this Court in Sparf & Hansen v. United

cated the burden of proof with respect to a particular fact

in a criminal trial. See, e.g., Sandstrom v. Montana, 442 U.S.

510 (1979). The other category comprises cases involving

non-criminal proceedings in which it is claimed that due

process requires a higher standard of proof than the “pre-

ponderance of the evidence” standard usually applied in such

proceedings. See, e.g., Santosky v. Kramer, 455 U.S. 745

(1982).

States, 156 U.S. 51, 105-106 (1895). See Johnson

v. Louisiana, 406 U.S. 356, 370 n.6 (1972) (opinion

of Powell, J.) (citing Sparf for the ‘“‘fact-law” alloca-

tion of decisionmaking between jury and judge);

Sullivan v. Louisiana, 113 8. Ct. at 2080 (same) ;

J. Thayer, A Preliminary Treatise on Evidence at

the Common Law 256 & n.2 (reprint 1969) (1898)

(same) ; see also Davis v. United States, 160 U.S. 469,

493 (1895). In England, the principle has been

traced to statements by Lord Coke in the sixteenth

century. See, e.g., Thayer, supra, at 185; 9 J. Wig-

more, Evidence § 2549, at 640 (J. Chadbourn rev.

ed. 1981). In civil actions in this country, the jury’s

authority to find facts is reflected in the Seventh

Amendment’s provision that ‘“‘no fact tried by a jury,

shall be otherwise re-examined in any Court of the

United States, than according to the rules of the

common law.”

By the time of the decision in Sinclair, the prin-

ciple had been stated “over and over again.” Brief

for Appellant at 109, Sinclair v. United States, No.

555 (O.T. 1928); see also id. at 110 (citing, among

other authorities, Sparf, supra); 1 T. Cooley, A

Treatise on Constitutional Limitations 678 & n.3 (W.

Carrington ed., 8th ed. 1927) (treating as “settled”

the “independence of the jury, with respect to the

matters of fact in issue before them”). Indeed, the

defendant in Sinclair presented a constitutional argu-

ment that parallels respondent’s argument in this

case. The defendant in Sinclair claimed that the trial

court’s failure to submit the question of pertinency

to the jury violated the Sixth Amendment. He argued

that, under that Amendment, “it has been said over

and over again, that every essential ingredient of the

crime must be proven to the satisfaction of the jury

TRS eae ote eT oe es Ss Such

beyond a reasonable doubt.” Brief for Appellant at

109, Sinclair v. United States, No. 555 (0.T. 1928)

(citing Egan v. United States, 52 App. D.C. 384, 393

(1923); Agnew v. United States, 165 U.S. 36

(1897) ) ; see also id. at 110 (quoting Sparf, supra) ;

Sinclair, 279 U.S. at 276-277 (argument for appel-

lant); id. at 291. He further argued that, because

the pertinency of the questions that he refused to

answer was an essential element of the crime with

which he was charged, “[t]he court, in withdrawing

from the jury the question of pertinency * * * denied

[him] the right of trial by jury.” Brief for Appel-

lant at 107, Sinclair v. United States, No. 555 (0.T.

1928).

In rejecting the defendant’s argument that “perti-

nency’” was a jury issue, Sinclair necessarily held

that the constitutional principles on which the de-

fenuant relied did not undermine the traditional rule

that legal questions, like the issue of materiality, are

within the province of the court to decide.* Sinclair,

*4 Sinclair is not distinguishable on the basis that it in-

volved “pertinency” under Rev. Stat. § 102, whereas the pres-

ent case involves “materiality” under 18 U.S.C. 1001. Sinclair

itself drew an analogy between Section 102’s “pertinency”

requirement and the materiality requirement in perjury pros-

ecutions, an analogy that this Court reiterated in Kungys V.

United States, with specific reference to the materiality re-

quirement of Section 1001. 485 U.S. at 772. Nor is Sinclair

distinguishable based on the Ninth Circuit’s view that “ma-

teriality” is an element of proof under Section 1001, in the

sense that the prosecution must plead and prove it. Pet.

App. 10a-12a. The Court in Sinclair similarly determined that

“pertinency” was an element of the prosecution’s case, in

the sense that it was “incumbent upon the United States to

plead and show that the question [that the defendant refused

therefore, does not conflict with the principles that

the court of appeals discerned in the Winship line of

cases.” Now, as when Sinclair was decided, those

principles do not justify a departure from the alloca-

tion of materiality in a false statements case to the

court.

2. There is, of course, an intersection between

Winship’s holding regarding the burden of proof in

a criminal case and the allocation of legal and factual

issues between court and jury as stated in Sparf.

The Court held in Sparf that the jury (rather than

the court) must be convinced of the existence of the

facts necessary to establish the elements of the of-

fense with which the defendant was charged, and

Winship removes any doubt that the standard of

proof governing the jury’s determination of those

to answer] pertained to some matter under investigation.”

279 U.S. at 296-297; see Russell v. United States, 369 US.

749, 755 (1962).

*5 Even the major holding of Winship—that “the Due Proc-

ess 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.

at 364)—was not an innovation. “Long before Winship, the

universal rule in this country was that the prosecution must

prove guilt beyond a reasonable doubt.” Patterson, 432 U.S.

at 211. Winship itself acknowledged that “[e]xpressions in

many opinions of this Court indicate that it has long been

assumed that proof of a criminal charge beyond a reasonable

doubt is constitutionally required.” 397 U.S. at 362 (citing,

inter alia, Miles v. United States, 108 U.S. 304, 312 (1881);

Davis Vv. United States, 160 U.S. 469, 488 (1895); Holt v.

United States, 218 U.S. 245, 253 (1910); Wilson v. United

States, 232 U.S. 563, 569-570 (1914)). Such a firmly rooted

principle could not have escaped the Court’s attention when

it decided Sinclair.

a ee ee

facts is beyond a reasonable doubt. As this Court

has thus noted, “the Fifth Amendment requirement

of proof beyond a reasonable doubt and the Sixth

Amendment requirement of a jury verdict are inter-

related.” Sullivan, 113 S. Ct. at 2081. But the Ninth

Circuit erroneously conflated the two requirements

in an attempt to justify its refusal to follow Sinclair

in light of the “later pronouncements in Winship

through Sullivan.” Pet. App. 16a.

There is no tension between Sinclair and the prin-

ciple that the jury in a criminal trial must decide the

facts constituting the offense. See Pet. App. 29a

(Kozinski, J., dissenting); accord United States v.

Daily, 921 F.2d 994, 1005-1006 & n.14 (10th Cir.

1990), cert. denied, 112 S. Ct. 405 (1991); United

States v. Paxson, 861 F.2d 730, 732 (D.C. Cir. 1988) ;

United States v. Abadi, 706 F.2d at 180 n2. As

explained above, Sinclair determined that materiality

in a prosecution for perjury was a question of law

rather than a question of fact; Kungys reaffirmed

that determination and found support for it in cases

arising under Section 1001. Because materiality is a

question of law rather than a question of fact, it need

not be submitted to the jury.

For the same reason, materiality need not be proven

beyond a reasonable doubt under Winship. See, e.g.,

United States v. Gribben, 984 F.2d 47, 50-51 (2d Cir.

1993) ; United States v. Abroms, 947 F.2d 1241, 1246-

1247 & n.5 (5th Cir. 1991) (citing cases), cert. de-

nied, 112 S. Ct. 2992 (1992). Indeed, a question of

law, by its nature, is not Susceptible to proof by

various quanta of evidence. United States v. Watson,

623 F.2d 1198, 1202 (7th Cir. 1980). One may have

varying levels of confidence in a legal determination,

but levels of confidence differ from degrees of proof.

Cf. Jackson v. Virginia, 443 U.S. 307, 315-319 & n.11

(1979) (Winship requirement of proof beyond a rea-

sonable doubt refers not only to level of certainty

required of factfinder but also to “the actual quantum

and quality of proof necessary to support a criminal

conviction’’).*°

Nor is there any conflict between Sinclair and de-

cisions of this Court applying Winship in criminal

cases. All of those decisions addressed statutes or

jury instructions affecting the burden of proof with

regard to questions of fact, not questions of law.

Most have concerned the question of the defendant’s

intent, “‘a question of fact which must be submitted

to the jury.” Morissette, 342 U.S. at 274.77 These

*6 Although some language in Kungys indicates that ma-

teriality under 8 U.S.C. 145i(a) must be proven by clear

and convincing evidence, 485 U.S. at 771-772, the standard

of proof was not at issue in Kungys and the decision cited

in Kungys for that proposition makes clear that the “clear

and convincing” standard applies not to materiality, but to

the ultimate factual issue of whether naturalization was

illegally procured. See Scvneiderman v. United States, 320

U.S. 118, 158 (1943); see also Chaunt v. United States, 364

U.S. 350, 353-354 (1960).

27 See Carella v. California, 491 U.S. 263, 264 (1989) (per

curiam) (statutory presumptions of embezzlement and intent

to commit theft by fraud); Francis v. Franklin, 471 US.

307, 309 (1985) (jury instructed that the acts of sane person

are presumed to be the product of will, and that a person

is presumed to intend the natural and probable consequences

of his or her acts) ; Connecticut v. Johnson, 460 U.S. 73, 78

(1983) (opinion of Blackmun, J.) (jury instructed that

“every person is conclusively presumed to intend the natural

and necessary consequences of his act’”’) ; Sandstrom v. Mon-

tana, 442 U.S. 510, 513 (1979) (jury instructed that “the

law presumes that a person intends the ordinary consequences

post-Winship decisions are relevant here only in es-

tablishing that the Due Process Clause leaves a legis-

lature broad discretion to define crimes. See, ¢.9.,

Patterson, 432 U.S. at 210. Nothing in those deci-

sions suggests that Congress exceeded its discretion

in Section 1001 by assigning the materiality question

to the court.

The post-Winship decisions actually support the

validity of Section 1001’s assignment of materiality

to the court. It is clear from those decisions that Con-

gress could have prohibited all false statements within

the department or agency’s jurisdiction, without re-

gard to their materiality. Cf. Patterson, 482 U.S.

at 209 (New York could have punished all intentional

murders, without recognizing any affirmative de-

fenses). Congress also could have punished all such

false statements but made immateriality a defense.

Cf. ibid. As a further alternative, Congress could

have made immateriality a factor “affecting * * *

the severity of the punishment,” id. at 207, for con-

sideration by the sentencing court. Cf. McMillan v.

Pennsylvania, 477 U.S. 79, 85-86 (1986). In light

of his voluntary acts”) ; Patterson, 4832 U.S. at 198 (statute

creating affirmative defense to homicide that defendant “acted

under the influence of extreme emotional disturbance for

which there was a reasonable explanation or excuse”); Mul-

laney V. Wilbur, 421 U.S. 684, 688 (1975) (presumption of

implied malice aforethought in homicide prosecutions) : see

also McMillan v. Pennsylvania, 477 U.S. 79, 81 n.1 (1986)

(mandatory minimum sentence for visible possession of fire-

arm during offense) ; County Court, 442 U.S. at 142 (statu-

tory presumption that firearm was in possession of people

in vehicle where firearm was found) ; Cool v. United States,

409 U.S. 100, 100 (1972) (per curiam) (jury instruction

allowing jury to ignore defense testimony unless it believed

beyond a reasonable doubt that testimony was true).

of the options open to Congress, it is difficult to con-

clude that the one option foreclosed to it was assign-

ing determination of materiality to the court.”

C. The Determination Of Materiality By The Court Is

Not Fundamentally Unfair

Finally, the resolution of the issue of materiality

by the judge as a matter of law does not violate “any

recognized principle of ‘fundamental fairness.’ ”

Medina, 112 S. Ct. at 2578 (quoting Dowling, 493

U.S. at 352). The Ninth Circuit’s contrary conclu-

sion rested on its rejection of this Court’s determina-

tion in Sinclair and Kungys that materiality is a ques-

tion of law. The court of appeals considered material-

ity under Section 1001 to be a factbound question

particularly well-suited to jury determination. See

Pet. App. 17a (jury “is entitled to believe or dis-

believe the testimony of [government] officials” that

a particular misstatement of fact would have had a

natural tendency to influence the decision of the gov-

ernment entity). While there is no infallible logical

test for viewing a question as one of fact or one of

law, see Thayer, supra, at 183-262; W. Prosser, Hand-

book on the Law of Torts 205 (4th ed. 1971), “a

28 That option, unlike the federal statutory presumptions

that this Court has struck down, does not relieve the prosecu-

tion of any burden of proof otherwise imposed by the statute.

Cf. Turner v. United States, 396 U.S. 398, 407 n.8 (1970)

(rejecting argument that, since Congress could make mere

possession of imported drugs a crime, it was permissible for

Congress to make it illegal for person to possess imported

drugs, knowing them to be imported, with statutory presump-

tion of knowledge triggered by fact of possession) ; Leary v.

United States, 395 U.S. 6, 34, 37 (1969) (same); Tot v.

United States, 319 U.S. 463, 472 (1948) (same).

page of history is worth a volume of logic.” New

York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

As discussed above, history has consistently classified

materiality as a question of law for the court. The

court of appeals did not identify any compelling rea-

son to reverse that historical judgment.

1. In classifying materiality under Section 1001

as a factbound question, the court of appeals acted

on a misunderstanding of the materiality require-

ment. See Pet. App. 12a-14a, 17a-18a. The court of

appeals believed that “a factual inquiry would nearly

always be necessary to determine what makes a dif-

ference to the decisionmaking body.” Id. at 12a. The

court thus thought it “necessary” in this case “to

take testimony of department officials in order to

determine whether the block checked on line 303 of

the settlement statement would tend to influence the

agency’s decision to insure the loan.” Jd. at 17a.

The court doubted, in light of the “trivial” sums that

were entered on line 303 of the settlement statement,

that “the particular block checked on line 303” would

“have any tendency to influence the agency’s deci-

sion.” Jd. at 17a-18a.

As the judges dissenting below observed, however,

the majority required “too fact-specific an inquiry.”

Pet. App. 41a. “[A] concealment or misrepresenta-

tion is material if it ‘has a natural tendency to in-

fluence, or was capable of influencing, the decision

of’ the decisionmaking body to which it was ad-

dressed.” Kungys, 485 U.S. at 770 (quoting Wein-

stock v. United States, 231 F.2d 699, 701-702 (D.C.

Cir. 1956)). As the dissent explained, under that

standard, “[t]he proper question is whether false

entries on a key line of a government-approved loan

application have ‘a natural tendency to affect’ the

agency’s decision, regardless of the amount in ques-

tion.” Pet. App. 41a. That question calls for ‘“a

generalized determination * * * that does not vary

significantly with the facts of each individual trans-

action.” Id. at 42a-43a.”

Every legal determination ‘must, of course, be

factually anchored to the case where it is applied.”

Pet. App. 40a (Kozinski, J., dissenting). Here, for

example, the materiality determination requires an

understanding of facts about the operation of the

loan insurance program that respondent defrauded.

Most such facts may be gleaned from the statute and

regulations authorizing the program. The district

court also had discretion to hear testimony about the

loan program by agency officials. The taking of such

testimony, however, did not transform the ultimate

determination of materiality into a jury question.

See id. at 17a; see also id. at 12a. The court of ap-

peals’ contrary view rested on the erroneous premise

that materiality may be decided by the court, rather

than the jury, “[o]nly if it can be said that there is

no factual component to the determination of mate-

riality.” Jd. at 13a (emphasis added). As the dissent

recognized (id. at 40a), many other legal determina-

29 Of course, there may be factual disputes antecedent to

the materiality determination that would be resolved by the

jury because they related to an element of the offense. See

p. 21, supra. For example, the materiality of a statement

may depend on the precise contents of the statement, a

matter that may be disputed if the statement was made

orally. In that situation, the jury should be allowed to re-

solve the dispute.

tions that are made by the court rather than the jury

require subsidiary factual determinations.”

The court of appeals correctly observed that judges

“frequently submit far more complex questions [than

materiality] to juries and have found through the

centuries that they do quite well.” Pet. App. 14a.

That observation, however, is not helpful here. The

essence of the materiality requirement is not a factual

inquiry into what particular agency officials might

do with accurate information. See United States v.

Hansen, 772 F.2d 940, 950 (D.C. Cir. 1985) (‘“Appli-

cation of § 1001 does not require judges to function

as amateur sleuths, inquiring whether information

specifically requested and unquestionably relevant to

the department’s or agency’s charge would really be

enough to alert a reasonably clever investigator that

wrongdoing was afoot.”), cert. denied, 475 U.S. 1045

(1986). Rather, materiality is determined by evalu-

ating the relationship between the concealment or

misrepresentation and the governmental process. See

3° Examples include preliminary questions concerning the

admissibility of evidence and the competency of witnesses,

see Fed. R. Evid. 104; and, in criminal cases, the voluntari-

ness of confessions and the legality of searches and seizures,

see Crane Vv. Kentucky, 476 U.S. 683, 688-689 (1986) (cir-

cumstances of confession are relevant to the “purely legal

question” of voluntariness as well as to ultimate factual

question of guilt or innocence) ; Jackson v. Denno, 878 U.S.

868, 391 & n.19 (1964) (judge or separate jury may deter-

mine voluntariness of confession) ; 1 W. LaFave & J. Israel,

Criminal Procedure § 10.5, at 801 (1984) (“The legality of

@ search is a matter of law to be determined by the court

and not the jury, and this is so even when resolution of the

matter depends upon a determination of the credibility of

various witnesses.”’) (footnote omitted); see also Fed. R.

Crim. P. 12(b) (3).

ibid.; see also United States v. Staniforth, 971 F.2d

1355, 1358 (7th Cir. 1992). That evaluation is akin

to determining the relevance of evidence, a legal

determination that throughout history has been as-

signed to the court. Sinclair, 279 U.S. at 298.

2. The judgment that materiality presents a legal

question is not simply an ancient maxim that has

survived for want of reexamination. Rather, it was

specifically reaffirmed by this Court in Kungys, which

held that the issue of materiality presented ‘‘an issue

of law, which we may decide for ourselves” without

initial resolution by the trial court as finder of fact.

485 U.S. at 772. The court of appeals found Kungys

inapposite because it concerned a civil proceeding

(denaturalization) rather than a criminal proceed-

ing. That distinction led the court to doubt that this

Court in Kungys considered the “constitutional im-

plications” of its decision for criminal cases. Pet.

App. 10a, 14a. Kungys is highly germane to the

present case, however. As Judge Kozinski explained,

the classification of materiality as a question of law

or a question of fact does not differ depending on

whether the classification is made in a civil proceed-

ing or a criminal one:

Something is either a question of law or a ques-

tion of fact; it can’t be both. Once it is held to

be a question of law—as materiality was in

Kungys—certain consequences follow. One is

that the standard of review is de novo rather

than for substantial evidence. Another is that,

in a criminal case, it need not be decided by a

jury.

Id. at 28a-29a (dissenting opinion). That analysis

underscores the relevance of Kungys here. Kungys

ON ——————— ss SC Crt—“‘—s—‘S

relied heavily on criminal cases, including those de-

cided under Section 1001, in construing the cognate

materiality requirement under the denaturalization

statute. Accordingly, the Court’s conclusion that ma-

teriality raises an issue of law lays to rest any sug-

gestion that materiality under Section .1001 raises

the sort of factual issue that is required, as a matter

of fundamental fairness, to be determined by the jury

as trier of fact in a criminal case.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

DREw S. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor General

KATHLEEN A. FELTON

Attorney

FEBRUARY 1995

5. GOVERNMENT PRINTING OFrice. 1995 387147 20041

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