Amicus Curiae Brief — Snyder v. United States

| Supreme Court of the United States

Octoser Term, 1994

UNITED STATES OF AMERICA,

Petitioner,

vs.

MICHAEL E. GAuUDIN,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF RESPONDENT

Bevery A. Pout Bruce S. Rocow*

Suite 200 Bruce S. Rocow, P.A.

350 Southeast Second Street 2441 S.W. 28th Avenue

Fort Lauderdale, FL 33301 Fort Lauderdale, FL 33312

(305) 767-8909 (305) 767-8909

* Counsel of Record for

Amicus Curiae National

Association of Criminal

Defense Lawyers

TABLE OF CONTENTS

Page

ID 6 ccc bbet suche Od epeeenbers 1

ee , Cov cetvececeteetrbbdenesred’s 2

SE A 0 0s 50k 4s dh owed wods obs eRe SERN ROE VE) 3

I. Neither Sinclair, Kungys nor history provides an

adequate rationale for treating the materiality

element of 18 U.S.C. § 1001 as a matter of law

outside the jury’s purview. ................45. 3

II. Correcting the misuse of Kungys and Sinclair will

serve the administration of justice. ............ 12

ES PR Pree eee eee ee ee eT eee 15

TABLE OF CITATIONS

Cases Cited:

Argersinger v. Hamlin, 407 U.S.25 (1972) ............ 14

Glasser v. United States, 315 U.S.60(1942) ........... 13

Hurtado v. California, 110 U.S.516(1884) ............ 10

In re Winship, 397 U.S.358 (1970) ......... 3,5, 8,9, 13, 14, 15

Jackson v. Virginia, 443 U.S. 307 (1979) .............. 13

Kungys v. United States, 485 U.S.759 (1988) ...2,3,6,7,8,9, 10, 12

ii

Contents

Page

Miller v. Fenton, 474 U.S. 104(1985) .............4.. 4

Morissette v. United States, 342 U.S.246(1951) ........ 9

Sandstrom v. Montana, 442 U.S.510(1979) ........... 9

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

peversedeceteusenevancusaeeeeun 2, 3,5, 6,7, 8,9, 12, 15

United States v. Abadi, 7% F.2d 178 (6th Cir. 1983) ..... 8

United States v. Beuttenmuller, 29 F.3d 973 (Sth Cir. 1994) ”

United States v. Brantley, 786 F.2d 1322 (7th Cir.), cert.

Ganlad, SFT 2B. TEU ccc ccscsecsaiaasaivns 9

United States v. Evans, 42 F.3d 586 (10th Cir. 1994) ..... 13

United States v. Gaudin, 28 F.3d 943 (9th Cir. 1994) ...2,3,9,12,13

United States v. Gribben, 984 F.2d 47 (2d Cir. 1992),

reversing, 792 F. Supp. 960(S.D.N.Y.1992) ........ 9

United States v. Staniforth, 971 F.2d 1355 (7thCir. 1992) ... 5

Victor v. Nebraska, _U.S.__, 114S. Ct. 1239 (1994) ... 5

Statutes Cited:

Bele GETS oc car ctccscdeccecvsnebenensentaeuns 6

Bi ak ol et .

Ry a

iit

Contents

Page

a sa ha Who Woes he abeees od h0e we 8

isthe pies ce ns Fab wo's Oo RES a OS ye

ie ek dae ok eres sodae ace seep ence ns +

Other Authorities Cited:

Kenneth M. Miller, Materiality: An Element of 18 U.S.C.

§ 1001 and a Question for the Jury, 23 Loy. L.A. L. Rev.

ES Cr ae ee re 7

Gertrude Stein, Everybody’s Autobiography 289 (ist ed.

EE ee ee ee 6

Department of Justice Manual Vol. 9 § 9-42.143 (Prentice-

Hall Law & Business 1989-2 Supp.) ............... 5

ee tee et

1

No. 94-514

In The

Supreme Court of the United States

a

October Term, 1994

UNITED STATES OF AMERICA,

Petitioner,

vs.

MICHAEL E. GAUDIN,

Respondent.

On Writ of Certiorari to the United States Court of Appeals for

the Ninth Circuit

Sk as er

i

BRIEF OF AMICUS CURIAE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF RESPONDENT

INTEREST OFAMICUS CURIAE'!

The National Association of Criminal Defense Lawyers

(NACDL) is a District of Columbia non-profit corporation with a

membership of more than 8,600 attorneys and 28,000 affiliate

members, including representatives from all fifty states. The

1. The parties have consented to the filing of this Brief. Their letters of

consent have been filed with the Clerk.

2

American Bar Association recognizes the NACDLas an affiliate

organization and awards it full representation in the House of

Delegates.

The NACDL was founded over twenty-five years ago to

promote study and research in the field of criminal defense law;

to disseminate and advance knowledge of the law in the area of

criminal practice; and to encourage integrity, independence and

expertise of defense lawyers. Among the NACDL’s stated

objectives is the promotion of the proper administration of

justice. Thus, the members of the NACDL have a vital interest in

insuring that the integrity of the federal and state systems of

criminal justice are protected. This includes an interest in this

case, which presents an opportunity to correct a long-standing but

flawed legal construct of criminal materiality under 18 U.S.C.

§ 1001, and to reformulate a new rule that materiality is a factual

matter for the jury, consonant with contemporary case law and

Fifth Amendment guarantees.

SUMMARY OF ARGUMENT

In a false statement prosecution under 18 U.S.C. § 1001, the

generally accepted view that the sufficiency of the evidence to

prove the element of “materiality” is a matter of law for the

court’s determination, rather than a matter of fact for the jury, is

an unsupportable proposition which the Court of Appeals for the

Ninth Circuit correctly rejected. United States v. Gaudin, 28 F.3d

943 (9th Cir. 1994) (en banc). Neither the traditional authority for

treating materiality as a legal issue, Sinclair v. United States, 279

U.S. 263 (1929), nor the “reaffirmation” of that case in Kungys v.

United States, 485 U.S. 759 (1988), contains any analysis or

constitutional justification for a court to determine an essential

element of a crime and to decide disputed facts at trial adversely

to acriminal defendant. Extending the “materiality is a matter of

law” rule from those cases to permit a judge to weigh disputed

3

evidence and to direct a government verdict on a disputed

element of the crime under § 1001 is a misapplication of law. The

rule the government relies upon conflicts with the due process

guarantees articulated in Jn re Winship, 397 U.S. 358 (1970), and

violates a defendant’s right to a jury trial on all elements of the

crime.

If conventional wisdom is flawed, it must be discarded.

Questions of retroactivity and of the application of a new rule to

other crimes containing a materiality element are simply

questions for another day. Gaudin was correctly decided below

and should be affirmed.

ARGUMENT

I.

NEITHER SINCLAIR, KUNGYS NOR HISTORY

PROVIDES AN ADEQUATE RATIONALE FOR

TREATING THE MATERIALITY ELEMENT OF 18 U.S.C.

§ 1001 AS A MATTER OF LAW OUTSIDE THE JURY’S

PURVIEW.

The question presented in the government’s petition for

certiorari adroitly avoids confronting whether the “materiality”

element of 18 U.S.C. § 1001 is a matter of law or fact. The

government asks whether materiality is “an issue to be decided

by the court rather than the jury.” (emphasis supplied). It is

beyond dispute that factual issues must be decided by the jury,

and it is uncontroverted that actual issues of law are properly

determined by a court. Thus, a precise characterization of

“materiality” — is it a matter of fact or law — should decide this

2. The government's Brief does not dispute the majority view of the

circuit courts of appeals that materiality is an element of the crime under

§ 1001, and refers to “the materiality element.” (Pet. Br. p. 12).

4

case a fortiori. The Court has recognized the difficulty in drawing

the “elusive” fact/law distinction:

[T]he Court has yet to arrive at “a rule or

principle that will unerringly distinguish a

factual finding from a legal conclusion.”

Pullman-Standard v. Swint, 456 U.S. 273,

288, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66

(1982).

Perhaps much of the difficulty in this area

stems from the practical truth that the

decision to label an issue a “question of law,”

a “question of fact,” or a “mixed question of

law and fact” is sometimes as much a matter

of allocation as it is of analysis. See

Monaghan, Constitutional Fact Review, 85

Colum.L.Rev. 229, 237 (1985). At least in

those instances in which Congress has not

spoken and in which the issue falls

somewhere between a pristine legal standard

and a simple historical fact, the fact/law

distinction at times has turned on a

determination that, as a matter of the sound

administration of justice, one judicial actor is

better positioned than another to decide the

issue in question. i

Miller v. Fenton, 474 U.S. 104, 112, 113-114 (1985).? In a

criminal trial in which “materiality” is an element of the crime

and is disputed, materiality is a question of fact for the jury.

3. Fenton did not implicate the judge-or-jury dilemma, but considered :

whether, in a 28 U.S.C. § 2254 habeas corpus proceeding, a district court’s F

conclusion about the voluntariness of confession was a question of fact

entitled to presumption of correctness, deciding that it was not. 474 U.S. at

112.

5

The government’s position is essentially that historical

practice and two cases from this Court establish that a judge is

the proper judicial actor to determine materiality in a § 1001 case.

The government makes that argument despite materiality being

an acknowledged element of the crime under § 1001, and despite

the fact that materiality was disputed in this case and was

dependent upon testimonial proof. In failing to credit those

indicia of a factual matter, the government sidesteps Jn re

Winship, 397 U.S. 358 (1970), which requires that “[t]he

government must prove beyond a reasonable doubt every

element of a charged offense. In re Winship, 397 U.S. 358, 90S.

Ct. 1068, 25 L. Ed. 2d 368 (1970).” Victor v. Nebraska, __ U.S.

__, 1148S. Ct. 1239, 1242 (1994).

Merely by labeling materiality a matter of law, courts have

justified their curious withdrawal of materiality from the jury.

Years of repetition cannot convert a faulty premise into a sound

one. Judge Posner has called that course “more than a little

puzzling... .” United States v. Staniforth, 971 F.2d 1355, 1358

(7th Cir. 1992). Where materiality is a disputed issue in a false

statement prosecution, the matter-of-law mantra must be rejected

in favor of a principled adherence to the /n re Winship, 397 U.S.

358 (1970), promise that all disputed facts in a criminal

prosecution will be determined by a jury and based upon proof

beyond a reasonable doubt.‘

Neither Sinclair v. United States, 279 U.S. 263 (1929), nor

4. The government’s assertion that “(t]he holding of Winship has no

direct application in this case” because “Winship did not address the standards

for distinguishing questions of law from issues of fact,” (Pet. Br. 32), serves to

bolster respondent’s position that once one acknowledges that materiality is

determined at trial after a factual showing, it must, under Winship, be

submitted to the jury with the other elements of the crime. See Department of

Justice Manual Vol. 9 § 9-42.143 (Prentice-Hall Law & Business 1989-2

Supp.) (“Materiality [in an 18 U.S.C. § 1001 prosecution] is best shown by the

testimony of expert witnesses. . .”).

6

Kungys v. United States, 485 U.S. 759 (1988), can survive an

analytically honest assessment of their statements that

materiality is a matter of law. In Sinclair, this Court affirmed a

conviction under 2 U.S.C. § 192, for Sinclair’s refusal to answer

any question “pertinent” to an inquiry conducted by a House of

Congress. Sinclair claimed that the question asked was not

“pertinent,” but the Court approved the trial court’s finding that

the question was pertinent as a matter of law:

The question of pertinency under

§ 102 was rightly decided by the court

as one of law. It did not depend upon

the probative value of evidence. That

question may be likened to those

concerning relevancy at the trial of

issues in court, and it is not essentially

different from the question as to

materiality of false testimony charged

aS perjury in prosecutions for that

crime. Upon reasons so well known

that their repetition is unnecessary it is

uniformly held that relevancy is a

question of law. . .And the materiality

of what is falsely sworn, when an

element in the crime of perjury, is one

for the court.

279 U.S. at 298 (emphasis supplied). The final quoted sentence,

clearly dictum in Sinclair, has been the legal justification for

hundreds of subsequent judicial utterances that materiality in a

§1001 prosecution is a matter for the judge. But when the

materiality of false statements is contested and is dependent upon

the probative value of the government’s evidence — as in this

case — “there’s no there there” in Sinclair.°

5. Gertrude Stein, Everybody's Autobiography 289 (ist ed. 1937)

(commenting on Oakland, California).

aS

7

Questions are classically reviewed by a judge for relevance;

answers pose a different question. One commentator has aptly

stated the “Sinclair rule” to be based on a misunderstanding of

the difference between materiality and relevance:

The concept of “relevancy” concerns the

admissibility of evidence. Conversely,

materiality as an element of an offense is an

issue upon which guilt or innocence depends.

As the court stated in United States v. Taylor,

[693 F. Supp. 828 (N.D. Cal. 1988)] “A

ruling by the court regarding evidence

simply determines what information a jury

may consider in reaching its decision

regarding the elements of an offense; a ruling

by the court regarding materiality precludes

the jury from ever reaching a decision

regarding that element.” The concepts of

materiality and relevancy should be viewed

as distinct. Therefore, comparing materiality

to relevancy does not firmly support the rule

that materiality is a question of law.

Kenneth M. Miller, Materiality: An Element of 18 U.S.C. § 1001

and a Question for the Jury, 23 Loy. L.A. L. Rev. 989, 1017

(1990) (citations omitted).

Clearly, the Sinclair Court did not consider the effect of its

dictum as applied to cases where the probative weight of a

statement, i.e., the materiality, is an element of a crime.

Unfortunately, neither did the Court in Kungys v. United States,

485 U.S. 759 (1988), when it once again “reaffirmed” the

Sinclair dictum.

Kungys arose from a determination by a district court in a

8

civil, non-jury denaturalization case, that certain false statements

in a visa and naturalization petition were not material under 8

U.S.C. § 1101(f)(6) and § 1451(a). 485 U.S. at 764-766. After

first re-formulating the test for materiality in the denaturalization

context (“whether [the concealments or misrepresentations] had

a natural tendency to influence the decisions of the Immigration

and Naturalization Service”), the Court “follow[ed] what has

been done with the materiality requirement under other statutes

dealing with misrepresentations to public officers” and

considered materiality to be a question of law, and thus

appropriate for appellate de novo review under the new test. /d. at

772. The Court cited Sinclair and a § 1001 case, United States v.

Abadi, 706 F.2d 178 (6th Cir. 1983), in support of its conclusion

that materiality was a matter of law. 485 U.S. at 772. However,

Abadi decided that materiality should not be treated as an element

of § 1001, but rather as a “judicially imposed limitation to insure

the reasonable application of the statute.” 706 F.2d at 180 n. 2.

Thus, the Abadi court reasoned, the Winship-imposed beyond a

reasonable doubt standard of proof was not required. Jd. This

Court’s citation to Abadi did not discuss or endorse that

reasoning.

In Kungys, anon-jury civil case, it was not necessary for the

Court to consider whether the fact/law distinction, as applied to

the element of materiality, implicated due _ process

considerations under Winship. Kungys simply did not present the

question framed in this case: may a district court judge, rather

than a jury, decide the essential statutory element of materiality

adversely to acriminal defendant, and direct a verdict against the

defendant on that discrete element of the crime? The fact/law

distinction in a false statement criminal case cannot comfortably

rest upon decades, or even centuries of decisions which found

materiality to be “law,” but which overlooked the reality that it is

an element of the crime based on the facts adduced at trial.®

6. Even Judge Kozinski, dissenting from the en banc majority in the

(Cont'd)

9

In the criminal arena, a district court’s finding that a false

statement was not material and the resulting dismissal of a

prosecution would be a matter of law. See United States v.

Gribben, 984 F.2d 47 (2d Cir. 1992), reversing, 792 F. Supp. 960

(S.D.N.Y. 1992). Judges daily make decisions that charges or

proof are insufficient to sustain a criminal conviction. But once

evidence is presented to a jury, and once that jury is instructed as

to the elements of the crime, the judge’s legal rulings concerning

the admitted evidence cannot usurp the jury’s role. This Court

has refused to tolerate any other instance in which an instruction

or ruling usurps the jury’s exclusive factfinding function,

regardless of the weight of the evidence underlying such aruling.

See Sandstrom v. Montana, 442 U.S. 510 (1979) (reversible error

if the trial court directs a verdict on an essential element of a

crime by giving an instruction that there is a conclusive

presumption as to that element).’

Legal reasoning which has been accepted over time is not

insulated from later critical analysis. Our law is not immutable

(Cont'd)

court below, acknowledged that “[t)he continued vitality of Sinclair is subject

to legitimate question because it antedated the Court’s Winship line of cases.”

28 F.3d at 956 (Kozinski, J., dissenting). Judge Kozinski’s minority view that

Sinclair “was given new life” in the “compelling authority” of Kungys’ finding

that a finding of non-materiality was a question of law still begs the question of

whether a court may constitutionally weigh evidence and direct a finding

adverse to a criminal defendant on an element of acrime.

7. Those lower courts which justify deciding a criminal materiality

element as an “exception” to the Winship rule do so without constitutional

authority, but only on the shirttails of Sinclair. See, e.g., United States v.

Brantley, 786 F.2d 1322 (7th Cir.), cert. denied, 477 U.S. 908 (1986). When

presented with the issue head-on, this Court has been unwilling to tolerate

mandatory presumptions of proof of criminal elements, Morissette v. United

States, 342 U.S. 246, 274 (1951), and should be equally adverse to an

“exception” to the Winship rule.

10

like that of the Medes and the Persians.* Where flaws are revealed

after years of use, the Sinclair statement, admittedly repeated in

Kungys, should be revisited and discarded.

This Court has never been reticent about reviewing past

decisions which are later demonstrated to be faulty, erroneous or

outdated.° This, too, is such a case.

8. Daniel 6:12; see also Hurtado v. California, 110 U.S. 516, 529 (1884)

(“It would be to stamp upon our jurisprudence the unchangeableness attributed

to the laws of the Medes and Persians.”).

9. See Nichols v. United States, 114 S. Ct. 1921 (1994), overruling

Baldasar v. Illinois, 446 U.S. 222 (1980); United States v. Dixon, 113 S. Ct.

2849 (1993), overruling Grady v. Corbin, 495 U.S. 508 (1990); Planned

Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992),

overruling Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416

(1983); Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992), overruling Townsend v.

Sain, 372 U.S. 293 (1963); Payne v. Tennessee, 501 U.S. 808 (1991),

overruling Booth v. Maryland, 482 U.S. 496 (1987); Collins v. Youngblood, 497

U.S. 37 (1990), overruling Kring v. Missouri, 107 U.S. 221 (1883), and

Thompson v. Utah, 170 U.S. 343 (1898); Alabama v. Smith, 490 U.S. 794

(1989), overruling Simpson v. Rice (decided with North Carolina v. Pearce),

395 U.S. 711 (1969); Thornburgh v. Abbott, 490 U.S. 401 (1989), overruling

Procunier v. Martinez, 416 U.S. 396 (1974); Rodriguez De Quijas v. Shearson/

American Exp., Inc., 490 U.S. 477 (1989), overruling Wilko v. Swan, 346 U.S.

427 (1953); South Carolina v. Baker, 485 U.S. 505 (1988), overruling Pollock

v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895); Gulfstream Aerospace

Corp. v. Mayacamas Corp., 485 U.S. 271 (1988), overruling Enelow v. New

York Life Ins. Co., 293 U.S. 379 (1935); Solorio v. United States, 483 U.S. 435

(1987), overruling O’Callahan v. Parker, 395 U.S. 258 (1969); Welch v. Texas

Dept. of Highways and Public Transp., 483 U.S. 468 (1987), overruling

Parden v. Terminal Railway of Ala. Docks Dept., 377 U.S. 184 (1964); Tyler

Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U.S. 232

(1987), overruling General Motors Corp. v. Washington, 377 U.S. 436 (1964);

Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986), overruling

August v. Bronstein, 417 U.S. 901 (1974); Batson v. Kentucky, 476 U.S. 79

(1986), overruling Swain v. Alabama, 380 U.S. 202 (1965); Daniels v.

(Cont’d)

11

(Cont’d)

Williams, 474 U.S. 327 (1986), overruling Parratt v. Taylor, 451 U.S. 527

(1981); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528

(1985), overruling National League of Cities v. Usery, 426 U.S. 833 (1976),

overruling Maryland v. Wirtz, 392 U.S. 183 (1968); Copperweld Corp.

Independence Tube Corp., 467 U.S. 752 (1984), overruling United States v.

Yellow Cab Co., 332 U.S. 218 (1947); United States v. Ross, 456 U.S. 798

(1982), overruling Robbins v. California, 453 U.S. 420 (1981); United States v.

Salvucci, 448 U.S. 83 (1980), overruling Jones v. United States, 362 U.S. 257

(1960); Hughes v. Oklahoma, 441 U.S. 322 (1979), overruling Geer v.

Connecticut, 161 U.S. 519 (1896); United States v. Scott, 437 U.S. 82 (1978),

overruling United States v. Jenkins, 420 U.S. 358 (1975); Monell v. New York

City Dept. of Social Serv., 436 U.S. 658 (1978), overruling Monroe v. Pape,

365 U.S. 167 (1961); Department of Revenue of State of Wash. v. Association of

Washington Stevedoring Companies, 435 U.S. 734 (1978), overruling Puget

Sound Stevedoring Co. v. State Tax Comm'n, 302 U.S. 90 (1937); Continental

T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977), overruling United States v.

Arnold, Schwinn & Co., 388 U.S. 365 (1967); Complete Auto Transit, Inc. v.

Brady, 430 U.S. 274 (1977), overruling Spector Motor Service v. O’Connor,

340 U.S. 602 (1951); Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363

(1977), overruling Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973); City of

New Orleans v. Dukes, 427 U.S. 297 (1976), overruling Morey v. Doud, 354

U.S. 457 (1957); Lodge 76, Intern. Ass'n of Machinists and Aerospace

Workers, AFL CIO v. Wisconsin Employment Relations Comm'n, 427 U.S. 132

(1976), overruling Int’l Union Automobile Workers v. Wisconsin Empl.

Relations Board, 336 U.S. 245 (1949); Dove v. United States, 423 U.S. 325

(1976), overruling Durham v. United States, 401 U.S. 481 (1971); North

Dakota State Bd. of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156

(1973), overruling Liggett Co. v. Baldridge, 278 U.S. 105 (1928); Andrews v.

Louisville & N. R. Co., 406 U.S. 320 (1972), overruling Moore v. Illinois

Central R. Co., 312 U.S. 630 (1941); Perez v. Campbell, 402 U.S. 637 (1971),

overruling Kesler v. Department of Pub. Safety, 369 U.S. 153-(1962); Boys

Markets, Inc. v. Retail Clerk’s Union, Local 770, 398 U.S. 235 (1970),

overruling Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962); Benton v.

Maryland, 395 U.S. 784 (1969), overruling Palko v. Connecticut, 302 U.S. 319

(1937); Lear, Inc. v. Adkins, 395 U.S. 653 (1969), overruling Automatic Radio

Co. v. Hazeltine Research, Inc., 339 U.S. 827 (1950); Brandenburg v. Ohio,

395 U.S. 444 (1969), overruling Whitney v. California, 274 U.S. 357 (1927);

(Cont'd)

12

II.

CORRECTING THE MISUSE OF KUNGYS AND

SINCLAIR WILL SERVE THE ADMINISTRATION OF

JUSTICE.

Ironically, the materiality-as-a-matter-of-fact rule which

amicus urges could serve both the government’s and future

defendants’ purposes. Since under the Sinclair rule materiality is

usually found in the government’s favor as a matter of law, one

can fairly assume that in the ordinary case proof of that element

will not be difficult for the government to establish. Even under

the Ninth Circuit’s Gaudin rule, in the majority of prosecutions

the government would have no difficulty at trial proving

materiality beyond a reasonable doubt. But where materiality

was genuinely at issue, a defendant would have the

(Cont’d)

Moore v. Ogilvie, 394 U.S. 814 (1969), overruling MacDougall v. Green, 335

U.S. 281 (1948); Peyton v. Rowe, 391 U.S. 54 (1968), overruling McNally v.

Hill, 293 U.S. 131 (1934); Carafas v. LaVallee, 391 U.S. 234 (1968),

overruling Parker v. Ellis, 362 U.S. 574 (1960); Bruton v. United States, 391

U.S. 123 (1968), overruling Delli Paoli v. United States, 352 U.S. 232 (1957);

Marchetti v. United States, 390 U.S. 39 (1968), overruling United States v.

Kahriger, 345 U.S. 22 (1953), and Lewis v. United States, 348 U.S. 419 (1955);

Afroyim v. Rusk, 387 U.S. 253 (1967), overruling Perez v. Brownell, 356 U.S.

44 (1958); Spevack v. Klein, 385 U.S. 511 (1967), overruling Cohen v. Hurley,

366 U.S. 117 (1961); Harris v. United States, 382 U.S. 162 (1965), overruling

Brown v. United States, 359 U.S. 41 (1959); Swift & Co. v. Wickham, 382 U.S.

111 (1965), overruling in part Kesler v. Department of Public Safety, 369 U.S.

153 (1962); Pointer v. Texas, 380 U.S. 400 (1965), overruling West v.

Louisiana, 194 U.S. 258 (1904); Gideon v. Wainwright, 372 U.S. 335 (1963),

overruling Betts v. Brady, 316 U.S. 455 (1942); Fay v. Noia, 372 U.S. 391

(1963), overruling Darr v. Burford, 339 U.S. 200 (1950); Mapp v. Ohio, 367

U.S. 643 (1961), overruling Wolf v. Colorado, 338 U.S. 25 (1949); James v.

United States, 366 U.S. 213 (1961), overruling Commissioner of Internal

Revenue v. Wilcox, 327 U.S. 404 (1946); Brown v. Board of Educ., 347 U.S. 483

(1954), overruling Plessy v. Ferguson, 163 U.S. 537 (1894).

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constitutionally warranted benefit of having the jury evaluate the

government's proof of that element of the crime. However, if the

jury returned a verdict of guilty, the government would then have

the benefit on appeal of the more deferential standard of review of

the sufficiency of the evidence. Aconviction will be sustained if a

rational jury could have found that each element of the crime was

established beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 317-20 (1979). The evidence will be viewed in the

light most favorable to the government, giving the government

the benefit of all reasonable inferences and credibility choices.

Glasser v. United States, 315 U.S. 60, 80 (1942).'° One wonders

why the government works so hard here to uphold the Sinclair

rule; probably it is because the rule serves to permit “materiality”

findings, and thus convictions, which a jury might not

countenance.

Tse Winship/Gaudin approach to materiality, reserved for

those instances in which materiality is an element of the crime,

truly serves the fair administration of justice. Judge Kozinski,

dissenting below, proffered the spectre of “scores, perhaps,

hundreds of prisoners” seeking the benefit of the new rule via

appellate review and/or collateral proceedings. 28 F.3d at 955

(Kozinski, J., dissenting). That concern is speculative; the

complex factors which are relevant to retroactivity and the

applicability of assigning materiality to the jury in different

statutory contexts are not questions presented in this case. In any

event, constitutional standards are not displaced by fears about

their future consequences. Even where such concerns are well-

founded, optimism guides the course of constitutional history:

10. Under the present system, a legal determination of materiality is

reviewed de novo. See, e.g., United States v. Evans, 42 F.3d 586, 592 (10th Cir.

1994); United States v. Beuttenmuller, 29 F.3d 973, 982 (Sth Cir. 1994) (“While

materiality rests upon a factual evidentiary showing by the prosecution, the

actual determination of materiality is a question of law for the court, and as

such, it is reviewed de novo.”’)

14

The holding of the Court today may well

add large new burdens on a profession

already overtaxed, but the dynamics of the

profession have a way of rising to the burdens

placed on it.

Argersinger v. Hamlin, 407 U.S. 25, 44 (1972) (Burger, C.J.,

concurring). The dynamics of our system can accomodate

whatever consequences may flow from following Winship.

15

CONCLUSION

In an 18 U.S.C. § 1001 prosecution, “materiality” is an

essential element of the offense. It must therefore be submitted

to the jury and be subject to the Jn re Winship requirement of

proof beyond a reasonable doubt. Amicus Curiae the National

Association Criminal Defense Lawyers urges this Court to limit

the Sinclair materiality rule to judicial rulings that a false

statement is not material; to recognize that, at trial, materiality is

a question of fact; and to affirm the constitutionally correct

decision of the en banc Ninth Circuit Court of Appeals.

Respectfully submitted,

BRUCE S. ROGOW*

BRUCE S. ROGOW, P.A.

2441 S.W. 28th Avenue

Fort Lauderdale, Florida 33312

(305) 767-8909

and

BEVERLY A. POHL

Suite 200

350 Southeast Second Street

Fort Lauderdale, Florida 33301

(305) 767-8909

*Counsel of Record for Amicus

Curiae National Association of

Criminal Defense Lawyers