# Petitioners Brief — Snyder v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0475%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 942

## Text

No. 94-514

. Oli Gr — ene
Iu the Supreme Court of the Unite States

OCTOBER TERM, 1994

a.

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.

A.

B.

C.

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

A.

B.

C.

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)

35
28

IV
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

Vv

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

VI
. 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 |

Ix

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

|

x
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 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-

12

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.

14

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

15

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.

16

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-

—

17

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-

© Similarly, in Regina v. Gibbon, Le. & Ca. 109, 169 Eng.
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.

18

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

—

19

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,

20

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

7

}

21
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

22

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,

23

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.

24

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

25

(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).

26

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

———————————

27

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-

28

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.”

29

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-

30
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,

:
/
|
|
:
§
:
1

31

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).

32

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-

33

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).

34

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

35

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

36

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

37

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.

38

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

39

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).

40

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).

a

41

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

42

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.

43

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).

44

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

45

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0475%3A05. Public record. Not legal advice.