No. 94-514 In the Supreme Court of the United States OCTOBER TERM, 1994 UNITED STATES OF AMERICA, PETITIONER V. MICHAEL E. GAUDIN ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES 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 Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- 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) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statutory provision involved . . . . 2 Statement . . . . 2 Summary of argument . . . . 8 Argument The materiality of a false statement under 18 U.S.C. 1001 is determined by the court rather than the jury . . . . 11 I. Materiality is determined by the court as a matter of precedent and history . . . . 12 A. Sinclair and Kungys establish that material- ity is determined by the court . . . . 12 B. The practice of having the court determine materiality has deep historical roots . . . . 16 C. Section 1001, like its historical antecedents, assigns the question of materiality to the court . . . . 22 II. The determination of materiality by the court is constitutional . . . . 25 A. The historical allocation of materiality to the court attests to its constitutionality . . . . 26 B. The principles of In re Winship do not re- quire departure from longstanding practice. . . . 31 C. The determination of materiality by the court is not fundamentally unfair . . . . 40 Conclusion . . . . 45 TABLE OF AUTHORITIES Cases: Agnew v. United States, 165 U.S. 36 (1897) . . . . 35 Apodaca V. Oregon, 406 U.S. 404 (1972) . . . . 28 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Barnes v. State, 15 Ohio C.C. 14 (1898) . . . . 19 Braden V. United States, 365 U.S. 431 (1961) . . . . 14 Bronston V. United States, 409 U.S. 352 (1973) . . . . 25 Cabana v. Bullock, 474 U.S. 376 (1986) . . . . 6 Carella V. California, 491 U.S. 263 (1989) . . . . 38 Carroll v. United States, 16 F.2d 951 (2d Cir.), cert. denied, 273 U.S. 763 (1927) . . . . l3, 20,25 Chaunt V. United States, 364 U.S. 350 (1960) . . . . 38 Commonwealth v. Lafferty, 419 A.2d 518 (Pa. Super. Ct. 1980) . . . . 29 Commonwealth V. McDuffee, 398 N.E.2d 463 (Mass. 1979) . . . . 30 Connecticut V. Johnson, 460 U.S. 73 (1983) . . . . 38 Cool V. United States, 409 U.S. 100 (1972) . . . . 39 Cothran V. State, 39 Miss. 541 (1860) . . . . 13,18 County Court V. Allen, 442 U.S. 140 (1979 ). . . . 33, 39 Crane V. Kentucky, 476 U.S. 683 (1986) . . . . 43 Davis V. United States, 160 U.S. 469 (1895) . . . . 34, 36 Deutch V. 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 (1923) . . . . 35 Estelle V. McGuire, 112 S. Ct. 475 (1991) . . . . 33 Fedorenko V. United States, 449 U.S. 490 (1981) . . . . 14 Francis V. Franklin, 471 U.S. 307 (1985) . . . . 38 Freidus V. United States, 223 F.2d 598 (D.C. Cir. 1955) . . . . 11, 25 Gordon V. State, 48 N.J.L. (19 Vroom) 611 (1886) . . . . 19 Gullett V. State, 523 So. 2d 296 (Miss. 1988) . . . . 29 Holland v. Illinois, 493 U.S. 474 (1990) . . . . 28 Holt V. United States, 218 U.S. 245 (1910) . . . . 36 Honda Motor Co. v. Oberg, 114 S, Ct. 2331 (1994) . . . . 26 Jackson v. Denno, 378 U.S. 368 (1964) . . . . 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 V. State, 2 Tex. Crim. 479 (1877) . . . . 18 Leary V. United States, 395 U.S. 6 (1969) . . . . 40 Martin v. Ohio, 480 U.S. 228 (1987) . . . . 27 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page Masinia V. United States, 296 F.2d 871 (8th Cir. 1961 ) . . . . 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) . . . . 39 Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856) . . . . 26 NLRB v. Amax Coal Co., 453 U.S. 322 (1981 ). . . . 25 Nelson V. State, 32 Ark. 192 (1877 ) . . . . 18 New York Trust Co. V. Eisner, 256 U.S. 345 (1921) . . . . 41 Pacific Mutual Life Ins. Co. V. Haslip, 499 U.S. 1 (1991) . . . . 27 Paritem Singh Poonian V. United States, 294 F.2d 74 (9th Cir. 1961) . . . . 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. 1982) . . . . 29 People v. Jones, 1 Mich. N.P. (1 Brown) 141 (Cir. Ct. 1869) . . . . 18 People v. Lem You, 97 Cal. 224 (1893) . . . . 19 People v. Powell, 513 N.E.2d 1162 (App. Ct. 1987), appeal denied, 520 N.E.2d 391 (Ill.), cert. denied, 486 U.S. 1025 (1988) . . . . 29 People V. Smith, 597 P.2d 204 (Colo. 1979) . . . . 29 Peters V. United States, 2 Okla. 138 (1894) . . . . 19 Power V. Price, 16 Wend. 450 (N.Y. 1836) . . . . 18 Regina V. Gibbon, Le. & Ca. 109, 169 Eng. Rep. 1324 (1861) . . . . 17 Regina v. Lavey, 3 Car. & K. 26, 175 Eng. Rep. 448 (Q.B. 1850) . . . . 17 Regina V. Southwood, 1 F. &F. 356, 175 Eng. Rep. 762 (1858) . . . . 17 Renan v. Commonwealth, 2 Ky. L. Rptr. 66 (1880) . . . . 18-19 Rusell V. United States, 369 U.S. 749 (1962 ) . . . . 14,36 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page Sandstrom v. Montana, 442 U.S. 510 (1979) . . . . 33, 38 Santosky v. Kramer, 455 U.S. 745 (1982) . . . . 33 Schad V. Arizona, 501 U.S. 624 (1991) . . . . 26, 27 Schneiderman v. United States, 320 U.S. 118 (1943) . . . . 38 Sinclair v. United States, 279 U.S. 263 (1929) . . . . passim Sparf & Hansen V. United States, 156 U.S. 51 (1895) . . . . 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 State V. Brown, 111 La. 170 (1903) . . . . 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 (Me. Ct. App. 1976) . . . . 29 State V. Rosenbaum, No. 974-93, 1994 WL 665576 (Tex. Crim. App. 1994) . . . . 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) . . . . 29 Steinman V. McWilliams, 6 Pa. (6 Barr) 170 (1847) . . . . 18 Sullivan v. Louisiana, 113 S. Ct. 2078 (1993) . . . . 6, 33, 34, 37 The Queen V. Courtney, 5 Ir. R.-C.L. 434 (Ct. Cr. App. 1856) . . . . 17 Thompson V. People, 26 Colo. 496 (1899) . . . . 19 Tot V. United States, 319 U.S. 463 (1943) . . . . 40 Turner v. United States, 396 U.S. 398 (1970 ) . . . . 40 ---------------------------------------- Page Break ---------------------------------------- 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 (4th Cir. 1993) . . . . 22 United States v. Bedgood, 49 F. 54 (S.D. Ala. 1891) . . . . 19 United States v. Bramblett, 348 U.S. 503 (1955) . . . . 23, 24 United States V. Clark, 918 F.2d 843 (9th Cir. 1990) . . . . 30 United States V. Corsino, 812 F.2d 26 (1st Cir. 1987) . . . . 11, 22 United States V. Cowing, 25 F. Cas. 680 (C.C.D.C. 1835) (No. 14,880) . . . . 19-20 United States V. Daily, 921 F.2d 994 (lOth 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) . . . . 12 United States v. Flake, 746 F.2d 535 (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) . . . . 30 United States V. Gaines, 690 F.2d 849 (llth Cir. 1982) . . . . 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) . . . . 22 United States V. Greenberg, 735 F.2d 29 (2d Cir. 1984) . . . . 31 United States V. Gribben, 984 F.2d 47 (2d Cir. 1993) . . . . 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 United States v. Hausmann, 711 F.2d 615 (5th Cir. 1983) . . . . ---------------------------------------- Page Break ---------------------------------------- VIII Cases-Continued: Page United States v. Haynes, 573 F.2d 236 (5th Cir.), cert. denied, 439 U.S. 850 (1978) . . . . 31 United States v. Johnson, 937 F.2d 392 (8th Cir. 1991) . . . . 22 United States v. Landsberg, 23 F. 585 (C.C.S.D. N.Y. 1882) . . . . 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 (llth Cir.), cert. denied, 469 U.S. 828 (1984) . . . . 22-23 United States v. Martel, 792 F.2d 630 (7th Cir. 1986) . . . . 22 United States v. Masters, 484 F.2d 1251 (l0th Cir. 1973) . . . . 30-31 United States v. Null, 415 F.2d 1178 (4th Cir. 1969) . . . . 31 United States v. Paxson, 861 F.2d 730 (D.C. Cir. 1988) . . . . 37 United States v. Rivera, 448 F.2d 757 (7th Cir. 1971) . . . . 30 United States v. Rodgers, 466 U.S. 475 (1984) . . . . 24, 25 United States v. Romanow, 509 F.2d 26 (lst Cir. 1975) . . . . 31 United States v. Shinn, 14 F. 447 (C.C.D. Or. 1882) . . . . 20 United States v. Silver, 235 F.2d 375 (2d Cir.), cert. denied, 352 U.S. 880 (1956) . . . . 12 United States v. Singleton, 54 F. 488 (S.D. Ala. 1892) . . . . 13, 19 United States V. Staniforth, 971 F.2d 1355 (7th Cir. 1992) . . . . 44 United States v. Strand, 617 F.2d 571 (l0th Cir.), cert. denied, 449 U.S. 841 (1980) . . . . 31 United States v. Taylor, 574 F.2d 232 (5th Cir.), cert. denied, 439 U.S. 893 (1978) . . . . 31 United States V. Watson, 623 F.2d 1198 (7th Cir. 1980) . . . . 37 United States v. Whyte, 699 F.2d 375 (7th Cir. 1983) . . . . 31 United States v. Valdez, 594 F.2d 725 (9th Cir. 1979) . . . . 5 ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page United States V. Yermian, 468 U.S. 63 (1984 ) . . . . 23, 24 Victor v. Nebraska, 114 S. Ct. 1239 (1994) . . . . 33 Weinstock V. United States, 231 F.2d 699 (D.C. Cir. 1956) . . . . 25, 41 Williams V. Florida, 399 U.S. 78 (1970) . . . . 28 Williams v. State, 535 S.W.2d 842 (Ark. 1976) . . . . 29 Wilson v. United States, 232 U.S. 563 (1914 ) . . . . 36 Winship, In re, 397 U.S. 358 (1970) . . . . 6, 10, 26, 31 32,33,36 Wolfe V. State, 271 So. 2d 132 (Fla. 1972) . . . . 29 Young V. People, 134 Ill. 37 (1890) . . . . 19 Constitution, statutes and rules: U.S. Const.: Amend. V . . . . 25, 26, 28 Due Process Clause . . . . . 25, 26, 39 Amend. VI . . . . 25, 28, 29, 30, 34 Amend. VII . . . . 34 Act of Oct. 23,1918, ch. 194,40 Stat. 1015 . . . . 23 1,40 Stat. 1015-1016 . . . . 23 Act of June 18,1934, ch. 587,48 Stat. 996 . . . .24 Rev. Stat. 102 (2 U.S.C. 192) . . . .12, 13, 35 8 U.S.C. 1451 (a) . . . . 11, 14, 15, 24, 38 12 U.S.C. 1709-2 . . . . 2 18 U.S.C. 1001 . . . . passim 18 U.S.C. 1621 . . . . 30 18 U.S.C. 1623 . . . . 30 26 U.S.C. 7206 (1) . . . . 31 Fed. R. Crim. P. 12 (b) (3) . . . . 43 Fed. R. Evid. 104 . . . . 43 Miscellaneous: American Law Institute, Model Penal Code (Tentative Draft No. 6) (1957) . . . . 30 2 American Law Institute, Model Penal Code & Commentaries (1980) . . . . 30 2 J. Bishop, Commentaries on the Criminal Law: (1858) . . . . 16 (7th ed. 1882) . . . . 20-21 2 J. Bishop, Commentaries on the Law of Criminal Procedure (1866) . . . . 20 ---------------------------------------- Page Break ---------------------------------------- X Miscellaneous-Continued: Page 4 W. Blackstone, Commentaries . . . . 14 48 C.J. Perjury (1929) . . . . 16 3 E. Coke, Institutes (6th ed. 1680) . . . . 14 1 T. Cooley, A Treatise on Constitutional Limita- tions (W. Barrington cd., 8th ed. 1927) . . . . 34 4 B. Elliott & W. Elliott, A Treatise on the Law of Evidence (1905) . . . . 21-22 3 S. Greenleaf, A Treatise on the Law of Evidence: (2d ed. 1853) . . . . 20 (14th ed. 1883) . . . . 21 (16th ed. 1899) . . . . 21 1 W. LaFave & J. Israel, Criminal Procedure (1984) . . . . 43 J. May, The Law of Crimes (1881) . . . . 22 2 E. McClain, A Treatise on the Criminal Law (1897) . . . . 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 ed. 1971) . . . . 40 3 W. Russell, A Treatise on Crimes and Misdemeanors (5th ed. 1877) . . . . 17 K.C. Sears & H. Weihofen, May's Law of Crimes (4th ed. 1938) . . . . 22 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) . . . . 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'1 & Comp. L. 215 (1993) . . . . 16 2 F. Wharton, A Treatise on Criminal Law (3. Kerr ed., llth ed. 1912) . . . . 21 F. Wharton, A Treatise on the Criminal Law of the United States (2d ed. 1852) . . . . 16, 20 F. Wharton, A Treatise on the Law of Evidence in Criminal Issues (0.N. Hilton ed., 10th ed. 1912) . . . . 21 9 J. Wigmore, Evidence (J. Chadbourn rev. ed. 1981) . . . . 34 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-514 UNITED STATES OF AMERICA, PETITIONER v. MICHAEL E. GAUDIN ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES OPINIONS BELOW The opinion of the en banc court of appeals (Pet. App. 1a-50a) is reported at 28 F.3d 943. The panel opinion of the court of appeals (Pet. App. 51a-62a) is reported at 997 F.2d 1267. JURISDICTION The judgment of the court of appeals was entered on June 21, 1994. The petition for a writ of cer- tiorari was filed on September 19, 1994, and was (1) ---------------------------------------- Page Break ---------------------------------------- 2 granted on January 6, 1995 (J.A. 39). The jurisdic- tion of this Court rests on 28 U.S.C. 1254(1). STATUTORY PROVISION INVOLVED Section 1001 of Title 18 provides: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a ma- terial fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. STATEMENT After a jury trial in the United States District Court for the District of Montana, respondent was convicted on one count of equity skimming, in viola- tion of 12 U.S.C. 1709-2, and 43 counts of making false statements, in violation of 18 U.S.C. 1001.1 He was sentenced to 36 months' imprisonment on the equity skimming count and to concurrent ten-month terms of imprisonment on each of the 43 false state- ment counts, to be followed by three years' super- vised release. He was also fined $2,200. A panel of the United States Court of Appeals for the Ninth Circuit affirmed the equity skimming conviction, but reversed the false statement convictions. Pet. App. ___________________(footnotes) 1 0f the 45 counts charging false statements under 18 U.S.C. 1001, one count was dismissed before the case went to the jury, and another was dismissed at sentencing. ---------------------------------------- Page Break ---------------------------------------- 3 51a-62a. The Ninth Circuit granted the government suggestion of rehearing en banc, and the en ban court, like the panel, affirmed respondent's equity skimming conviction but reversed his false statement convictions. Id. at la-50a. 1. Respondent was a real estate broker and de- veloper who purchased rental housing, renovated it, and purported to sell it to buyers who took out loans insured by the Federal Housing Administration (FHA), an entity within the Department of Housing and Urban Development (HUD ). The sales were fraudulent in two ways. First, respondent obtained inflated appraisals of the housing in order to increase the loans supplied by the lending institutions. Second, the buyers had no intention of actually owning the properties; they were "strawbuyers"-friends and relatives of respondent recruited to pose as real buyers. Respondent agreed to repurchase the prop- erties from the strawbuyers at a $1,000 profit to them. In addition, he routinely refunded the down payments they made. Pet. App. 3a. After reacquiring the properties, respondent defaulted on 29 federally insured loans. Respondent made a profit of $982,003 from his scheme. Id. at 54a. Counts 44 through 46 of the indictment charged that respondent violated 18 U.S.C. 1001 by causing false statements to be made on HUD/FHA form 92800-5. On that form, one of respondent's co- defendants certified the appraised value of the prop- erty securing the loan. The government's theory was that the statements were false because the appraisals were inflated. Counts 2 through 17 and 19 through 42 charged that respondent violated Section 1001 by making false ---------------------------------------- Page Break ---------------------------------------- 4 statements on HUD/FHA form HUD-1. The HUD-1 form was the settlement statement used in closing the sales of the rental properties by respondent to strawbuyers. The purpose of the HUD-1 form is to show the source and recipient of the funds changing hands at settlement. The HUD-1 form thus requires a statement of the purchase price, the loan amount, and the closing costs to be paid or received by the seller and the buyer (called the "borrower" on the form). The portion of the HUD-1 form on which respondent was charged with making false statements was line 303, which is at the bottom of the first page of the form. 2 Line 303 is under a caption that says "cash at settlement from or to borrower"; line 303 itself consists of boxes to be checked indicating whether the borrower is to pay or receive money and a blank space to indicate how much. Pet. App. 3a-4a. On the HUD-1 forms for three of respondent's transactions, the box "to" the borrower was checked; in one transaction, no box was checked; and in the rest, the box "from" the borrower was checked. Vari- ous amounts of money were entered on the blank spaces on line 303, ranging from relatively small amounts to several thousand dollars. On each form, respondent signed a certification that, "to the best of my knowledge and belief, [the HUD-1 form] is a true and accurate statement of all receipts and dis- bursements made on my account or by me in this transaction." In all cases, however, the forms were false, because it was respondent, and not the borrower-strawbuyer, who actually paid or received ___________________(footnotes) 2 An example of that form is reproduced as an appendix to the court of appeals' en banc opinion. Pet. App. 24a-25a. ---------------------------------------- Page Break ---------------------------------------- 5 the cash amounts recorded on line 303. Pet. App. 4a-5a. 2. The district court instructed the jury that, to convict respondent on the false statement counts, the government was required to prove six elements: (1) respondent made or caused to be made a writing that contained a statement concerning a matter within HUD's jurisdiction; (2) the writing contained false, fictitious, and fraudulent statements; (3) respondent knew or should have known that the statement fell within HUD's jurisdiction; (4) respondent knew that the writing contained false, fictitious, and fraudulent statements; (5) respondent acted with the intent to influence HUD; and (6) the statements were material to the activities or decisions of HUD. J.A. 22-23, 27-28. With respect to the sixth element, the court instructed the jury that the statements charged in the indictment as false were material as a matter of law. J.A. 24, 29; see Pet. App. 5a, 58a.3 Respondent did not object to that instruction. Id. at 19a. The jury convicted him of the Section 1001 charges. Id. at 2a. 3. A panel of the court of appeals reversed the false statement convictions. Pet. App. 51a-62a. It held that, under United States v. Valdez, 594 F.2d 725, 729 (9th Cir. 1979), materiality in a Section ___________________(footnotes) 3 The jury was instructed as follows: "With reference to the sixth element, I instruct you that the making of a false statement to an agency of the United States Government is not an offense unless the statement made is a material state- ment. The issue of materiality, however, is not submitted to you for your decision but rather is a matter for the deci- sion of the court. You are instructed that the statements charged in the indictment are material statements." J.A. 24,29. ---------------------------------------- Page Break ---------------------------------------- 6 1001 prosecution must be decided by the jury. Pet. App. 57a-58a. It further held that the error was plain-and therefore could be raised for the first time on appeal-and was not harmless-and therefore required reversal of the convictions. Id. at 58a-62a. 4. On rehearing en bane, the Ninth Circuit, in a 6-5 ruling, reaffirmed its holding that materiality under Section 1001 is an issue to be decided by the jury. Pet. App. la-50a. a. The majority noted that virtually every court that has addressed the issue has held that materiality under perjury and false statement statutes is a ques- tion of law for determination by the judge. Pet. App. 5a. Those decisions, the court observed, generally rely on Sinclair v. United States, 279 U.S. 263 (1929), which held that, in a prosecution for failing to an- swer a question "pertinent to the question under inquiry [by Congress] ," the issue of pertinency is a legal issue for determination by the court. Id. at 299. The court of appeals concluded, however, that Sinclair does not compel the view that materiality in a Section 1001 prosecution is an issue for the court, because more recent decisions establish that the Constitution entitles a defendant to a jury deter- mination, beyond a reasonable doubt, of the facts required to establish the elements of a crime. Pet. App. 6a-9a (citing, inter alia, In re Winship, 397 U.S. 358, 364 (1970); Cabana v. Bullock, 474 U.S. 376, 384-385 (1986) ; and Sullivan v. Louisiana, 113 S. Ct. 2078, 2082 (1993)). The court concluded that the proper decisionmaker on the issue of materiality must be determined in light of those constitutional considerations. Pet. App. 9a-14a. The court then held that materiality is "an essential element of the offense prohibited by 18 U.S.C. $1001," ---------------------------------------- Page Break ---------------------------------------- 7 because the statute itself makes materiality an ele- ment of the crime. Pet. App. 11a. The court further held that, under the prevailing test for materiality- whether a statement "has a natural tendency to in- fluence, or was capable of influencing, the decision of the decisionmaking body to which it was ad- dressed" (Kungys v. United States, 485 U.S. 759, 770 (1988) (internal quotation marks omitted) )-" [i]t would seem that a factual inquiry would nearly al- ways be necessary to determine what makes a differ- ence to the decisionmaking body." Pet. App. 12a. While statutes or regulations could define what is material, the court believed that, in the usual case, materiality is a "mixed question of law and fact." Ibid.4 The court concluded that if materiality is a mixed question of law and fact under Section 1001, "it must be submitted to the jury" under the Sixth Amendment. Id. at 13a, 14a. The court added that, " [a]lthough we are confronted in this case with only the issue of whether materiality must be submitted to the jury in section 1001 cases, it seems to be courting constitutional error to withdraw the materi- ality question from the jury in other perjury and false statement cases." Id. at 14a. The court of appeals recognized that this Court held in Kungys that materiality is a question of law to be resolved by the court, and that Kungys had ___________________(footnotes) 4 The court stated, for example, that there were factual issues as to the materiality to the FHA of the misstatements on respondent's settlement statements (i.e., HUD-1 forms). Later in its opinion, the court detailed why it thought that testimony of officials would be necessary to determine whether the misstatements on the settlement statements would have tended to influence any agency decision. Pet. App. 12a-14a. ---------------------------------------- Page Break ---------------------------------------- 8 relied on Section 1001 cases in reaching that conclu- sion. But the court distinguished Kungys as a denaturalization case, not a criminal case. According to the court of appeals, Kungys therefore did not have to address the constitutional issue under Winship of whether a court could determine an element of the crime as a matter of law. Pet. App. 14a-17a. Finally, the court held that the error of failing to submit materiality to the jury is neither harmless nor barred from appellate review in this case by the plain error doctrine. Pet. App. 18a-22a.5 b. Judge Kozinski, writing for himself and four other judges, dissented. Pet. App. 26a-50a. He noted that, by holding that materiality is an issue for the jury in a prosecution under Section 1001, the court had "provoke [d] a conflict with every other regional circuit." Id. at 26a. He also criticized the majority for departing from the Court's holdings in Sinclair and Kungys, which he said are "directly on point." Id. at 28a. Finally, he explained that the majority had misinterpreted Section 1001 in holding that the issue of materiality depends on what facts actually would be considered by a decisionmaking body. Id. at 40a-43a.6 SUMMARY OF ARGUMENT I. This Court's decisions and historical practice establish that the issue of materiality in a false state- ment prosecution under 18 U.S.C. 1001 is a question of law for the court, rather than an issue of fact for ___________________(footnotes) 5 The court of appeals' holdings on plain error and harm- less error are not at issue here. 6 Judge Kozinski also disagreed with the majority that the error in this case met the requirements of the plain error doctrine. Pet. App. 26a, 43a-47a. ---------------------------------------- Page Break ---------------------------------------- 9 the jury. In Sinclair v. United States, 279 U.S. 263, 298 (1929), the Court observed that "the materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court," and relied on that observation to reject the defendant's argument that, in a prosecution for an offense analogous to per- jury, the issue of "pertinency" must be decided by the jury. In Kungys v. United States, 485 U.S. 759, 772 (1988 ), the Court similarly relied on the histori- cal treatment of "materiality" in holding that, under the statute authorizing denaturalization for false statements made in applying for citizenship, the ma- teriality of those statements is an issue of law for the court. The decisions in Sinclair and Kungys are consistent with a vast body of law, both in England and in this country, that has treated the issue of materiality as a legal matter for decision by the court. Section 1001, like the statutes at issue in Sinclair and Kungys, proscribes an offense that is analogous to perjury; it punishes the intentional misrepresenta- tion or concealment of facts that have the capacity to corrupt governmental processes. In accordance with Sinclair, Kungys, and the historical treatment of ma- teriality in perjury prosecutions, Section 1001 is properly understood to treat the determination of materiality as a legal issue for the court. II. The determination of materiality by the court as an issue of law is consistent with the requirements of the Constitution. Because the traditions in England and this country overwhelmingly endorse the assign- ment of the materiality determination to the court rather than the jury, there is a strong presumption that that practice is constitutional. ---------------------------------------- Page Break ---------------------------------------- 10 The court of appeals erred in holding that the de- termination of materiality by the court under Section 1001 violates the right recognized in In re Winship, 397 U.S. 358 (1970), to a jury determination of the facts constituting an offense beyond a reasonable doubt. The Win-ship principle is no novelty, but was well established at the time of the decision in Sinclair. And, although the defendant in Sinclair relied on that principle, the Court found it entirely valid to have materiality issues resolved by the court as "ques- tion [s] of law," 279 U.S. at 298. The same analysis holds true today: Because the Winship principle ap- plies only to the facts necessary to constitute a crimi- nal offense, it is inapplicable to the issue of material- ity, which presents a question of law for decision by the court. Nor does it violate any other principle of funda- mental fairness to entrust the resolution of material- ity issues to the court. The court of appeals' view that the determination of materiality is a classic jury question rests on a misunderstanding of the material- ity requirement. Properly understood, that require- ment focuses on the nature of the functions that the agency is authorized to perform, and the capacity of the misstatement to affect those functions. Those is- sues present legal questions. In addition, the court of appeals erred in stating that a question of law cannot involve the assessment of any facts whatso- ever. To the extent that materiality requires con- sideration of facts, it is no different from other legal issues-for example, the admissibility of evidence- that are entrusted to the court and often require the assessment of facts. Finally, the court of appeals erred in attaching significance to the jury's ability to determine more complex questions than issues of ---------------------------------------- Page Break ---------------------------------------- 11 materiality. It is not the complexity, but the nature, of the issue that determines whether it is decided by the court or the jury. As this Court recently re- affirmed in Kungys, materiality is a legal issue, and the court may therefore determine it in a prosecution under Section 1001 without 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 ___________________(footnotes) 7 See, e.g., United States v. Corsino, 812 F.2d 26, 30 (1st Cir. 1987) ; United States V. Lichen-stein, 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, i.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- ---------------------------------------- Page Break ---------------------------------------- 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. 263 (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 ___________________(footnotes) 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. ---------------------------------------- Page Break ---------------------------------------- 13 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.8 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 ___________________(footnotes) 8 Transcript of Record at 114-115, Sinclair v. United States, No. 555 (0.T. 1928). 9 Certificate at 13, Sinclair V. United States, No. 555 (0.T. 1928) ; see also Sinclair, 279 U.S. at 284, ---------------------------------------- Page Break ---------------------------------------- 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." Ibid. 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, ---------------------------------------- Page Break ---------------------------------------- 15 which, like its "common-law antecedents," employs the term " `material.' " 485 U.S. at 769-770. After defining the term "materiality" in 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." Id. 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. ---------------------------------------- Page Break ---------------------------------------- 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'1 & 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- ---------------------------------------- Page Break ---------------------------------------- 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. 434 (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 determine whether the particular matter was or was not material." Id. at 441-442.10 In 1911, the issue was conclusively set- ___________________(footnotes) 10 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. ---------------------------------------- Page Break ---------------------------------------- 18 tied by the enactment of a statute providing that "[t] 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 ___________________(footnotes) 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 ---------------------------------------- Page Break ---------------------------------------- 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).12 The prevailing rule was ___________________(footnotes) (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, 228-230 (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, ---------------------------------------- Page Break ---------------------------------------- 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 ___________________(footnotes) 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 ---------------------------------------- Page Break ---------------------------------------- 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." ___________________(footnotes) 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] ." 3 S. 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 cd., llth ed. 1912) (footnotes omitted) ; see also F'. Wharton, A Treatise on the Law of Evidence in Criminal issues 86, at 270 (0.N. Hilton ed., 10th ed. 1912). 14 In addition to sources previously cited in the text and notes 12 and 13, supra, see, e.g., 4 B. Elliott & W. Elliott, A ---------------------------------------- Page Break ---------------------------------------- 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 ___________________(footnotes) 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 93, 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 (lOth Cir. 1990), cert. denied, 112 S. Ct. 405 (1991) ; United States V. Lopez, 728 F.2d 1359, ---------------------------------------- Page Break ---------------------------------------- 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 v. 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. ___________________(footnotes) 1362 n.4 (llth Cir.), cert. denied, 469 U.S. 828 (1984) ; United States V. Hansen, 772 F.2d 940, 950-951 (D.C. Cir. 1985) (Scalia, J.), cert. denied, 475 U.S. 1045 (1986). 16 As amended in 1918, Section 85 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. ---------------------------------------- Page Break ---------------------------------------- 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 settled 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 ---------------------------------------- Page Break ---------------------------------------- 25 (quoting NLRB v. Amax 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 ___________________(footnotes) 17 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 depat- 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, 223 F.2d 598, 601 n.10 (D.C. Cir. 1955) (noting close kinship between Section 1001 and perjury statutes ). 18 In 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). ---------------------------------------- Page Break ---------------------------------------- 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 ___________________(footnotes) 19 The Due Process Clause of the Fifth Amendment pro- vides: "No person shall * * * be deprived of life, liberty, or property, without due process of law." ---------------------------------------- Page Break ---------------------------------------- 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 (0'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 S. 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- ---------------------------------------- Page Break ---------------------------------------- 28 fringes the jury trial guarantee of the Sixth Amend- ment.20.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 v. 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. William 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 ___________________(footnotes) 20 The 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." ---------------------------------------- Page Break ---------------------------------------- 29 of law. See pp. 16-21, supra. This Court reaffirmed that view in Sinclair v. United States, supra, based on the long historical tradition and the rationales supporting it. And "[c]ontemporary 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 21 and the ___________________(footnotes) 21 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 bane) ; 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 v. Powell, 513 N.E.2d 1162, 1165-1166 (Ill. App. Ct. 1987), appeal denied, 520 N.E.2d 391 (Ill.), 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 v. 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- ---------------------------------------- Page Break ---------------------------------------- 30 federal courts." 22 ___________________(footnotes) 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. 32a-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. Rivers, 448 F.2d 757, 758 (7th Cir. 1971) ; Masinia v. United States, 296 F.2d 871, 874 (8th Cir. 1961) ; United States V. Masters, ---------------------------------------- Page Break ---------------------------------------- 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 Windship 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. ___________________(footnotes) 484 F.2d 1251, 1254 (lOth 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 v. Romanow, 509 F.2d 26, 28 (1st Cir. 1975) ; United States v. Greenberg, 735 F.2d 29, 31 (2d Cir. 1984) ; United States v. 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 v. 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 (lOth Cir.), cert. denied, 449 U.S. 841 (1980) United States v. Gaines, 690 F.2d 849, 868 (llth Cir. 1982) but see United States V. Null, 415 F.2d 1178, 1181 (4th Cir 1969) (submitting issue to jury). ---------------------------------------- Page Break ---------------------------------------- 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. Id. 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 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- ---------------------------------------- Page Break ---------------------------------------- 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." Id. 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, 432 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 ___________________(footnotes) 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) . ---------------------------------------- Page Break ---------------------------------------- 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 "fad-law" alloca- tion of decisionmaking between jury and judge); Sullivan v. Louisiana, 113 S. 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 (0.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. Barrington 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 ---------------------------------------- Page Break ---------------------------------------- 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- fendant relied did not undermine the traditional rule that legal questions, like the issue of materiality, are within the province of the court to decide.24 Sinclair, ___________________(footnotes) 24 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 ---------------------------------------- Page Break ---------------------------------------- 36 therefore, does not conflict with the principles that the court of appeals discerned in the Winship line of cases.25 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 ___________________(footnotes) to answer] pertained to some matter under investigation." 279 U.S. at 296-297; see Russell v. United States, 369 U.S. 749,755 (1962) . 25 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, 103 U.S. 304, 312 (1881) ; Davis v. 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. ---------------------------------------- Page Break ---------------------------------------- 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 (lOth 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 n.2. 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. ---------------------------------------- Page Break ---------------------------------------- 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" ).26 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. 27 These ___________________(footnotes) 26 Although some language in Kungys indicates that ma- teriality under 8 U.S.C. 1451 (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 Schneiderman 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 U.S. 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 ---------------------------------------- Page Break ---------------------------------------- 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, e.g., 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, 432 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 ___________________(footnotes) of his voluntary acts") ; Patterson, 432 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). ---------------------------------------- Page Break ---------------------------------------- 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. 28 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. Presser, Hand- book on the Law of Torts 205 (4th ed. 1971), "a ___________________(footnotes) 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(1943) (same). ---------------------------------------- Page Break ---------------------------------------- 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." Id. 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." Id. 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 ---------------------------------------- Page Break ---------------------------------------- 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.29 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." Id. at 13a (emphasis added). As the dissent recognized (id. at 40a), many other legal determina- ___________________(footnotes) 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 oral] y. In that situation, the jury should be allowed to re- solve the dispute. ---------------------------------------- Page Break ---------------------------------------- 43 tions that are made by the court rather than the jury require subsidiary factual determinations. 30 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 ___________________(footnotes) 30 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 V. 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, 378 U.S. 368, 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 a 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). ---------------------------------------- Page Break ---------------------------------------- 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. I.d at 28s-29a (dissenting opinion). That analysis underscores the relevance of Kungys here. Kungys ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- No. 94-514 In the Supreme Court of the United States OCTOBER TERM, 1994 UNITED STATES OF AMERICA, PETITIONER V. MICHAEL E. GAUDIN ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Basic Inc. v. Levinson, 485 U.S. 224 (1988) . . . . 5 Commonwealth v. McDuffee, 398 N.E.2d 463 (Mass. 1979) . . . . 10 Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993) . . . . 17 Dowling v. United States, 493 U.S. 342 (1990) . . . .16 Duncan v. Louisiana, 391 U.S. 145 (1968) . . . . 17 Horning v. District of Columbia, 254 U.S. 135 (1920) . . . . 17 ICC v. Brimson, 154 U.S. 447 (1894) . . . . 18, 19 J.E.B. V. Alabama, 114 S. Ct. 1419 (1994) . . . . 18 Kungys v. United States, 485 U.S. 759 (1988) . . . . 16 M'Lanahan v. Universal Ins. Co., 26 U.S. (1 Pet.) 170 (1828) . . . . 1, 7, 18 Medina v. California, 113 S. Ct. 2572 (1992) . . . . 5 Miller v. Fenton, 474 U.S. 104 (1985) . . . . 15 Morissette v. United States, 342 U.S. 246 (1952) . . . .14 People v. Hedgecock, 795 P.2d 1260 (Cal. 1990) . . . . 10, 11, 12 Railroad Co. v. Stoutl 84 U.S. (17 Wall.) 657 (1873) . . . . 6 SEC v. Maio, Nos. 93-1233 & 94-1234, 1995 WL 117091 (7th Cir. Mar. 21, 1995) . . . . 6 SEC v. Steadman, 967 F.2d 636 (D.C. Cir. 1992) . . . . 6 Sinclair v. United States, 279 U.S. 263 (1929) . . . . 1, 17, 18 State v. Anderson, 603 A.2d 928 (N.J. 1992) . . . . 10 State v. Sands, 467 A.2d 202 (N.H. 1983) . . . . 9, 16 Sullivan v. Louisiana, 113 S. Ct. 2078 (1993) . . . . 18 TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438 (1976) . . . . 5, 6 Taylor v. Louisiana, 419 U.S. 522 (1975) . . . . 16 United States v. Abadi, 706 F.2d 178 (6th Cir.), cert. denied, 464 U.S. 821 (1983) . . . . 19 United States v. Arch Trading Co., 987 F.2d 1087 (4th Cir. 1993) . . . . 3 (I) ---------------------------------------- Page Break ---------------------------------------- II Cases Continued: Page United States v. Daily, 921 F.2d 994 (lOth Cir. 1990), cert. denied, 502 U.S. 952 (1991) . . . . 19 United States v. Greenberg, 735 F.2d 29 (2d Cir. 1984) . . . . 7 United States v. Guy, 456 F.2d 1157 (8th Cir.), cert. denied, 409 U.S. 896 (1972) . . . . 15 United States v. Hansen, 772 F.2d 940 (D.C. Cir. 1985), cert. denied, 475 U.S. 1045 (1986) . . . . 8 United States v. Hernandez-Fundora, No. 93-1632 1995 WL 67811 (2d Cir. Feb. 14, 1995) . . . . 14 United States v. Howard, 855 F.2d 832 (llth Cir. 1988) . . . . 15 United States v. Jackson, 436 F.2d 39 (9th Cir. 1970), cert. denied, 403 U.S. 906 (1971) . . . . 14 United States v. Lovasco, 431 U.S. 783 (1977) . . . . 16 United States v. Paxson, 861 F.2d 730 (D.C. Cir. 1988) . . . . 19 United States v. Rodgers, 466 U.S. 475 (1984) . . . . 13 United States v. Staniforth, 971 F.2d 1355 (7th Cir. 1992) . . . . 10, 11 United States v. Taylor 693 F. Supp. 828 (N.D. Cal. 1988) . . . . 10, 18 United States v. Warren, 984 F.2d 325 (9th Cir. 1993) . . . . 14 Williams v. Florida, 399 U.S. 78 (1970) . . . . 16 Winship ,In re, 397 U.S. 358 (1970) . . . . 15 Constitution, statutes and regulations: U.S. Const.: Amend. V (Due Process Clause) . . . . 12 Amend. VI . . . . 12, 13, 16 15 U.S.C 77q(a)(2) . . . . 5 15 U.S.C. 78j(b) . . . . 5 18 U.S.C. 1001 . . . . 1, 2, 3, 4-5, 7, 9, 13 18 U.S.C. 1014 . . . . 10 18 U.S.C. 1341 . . . . 5 18 U.S.C. 1343 . . . . 5 18 U.S.C. 1344 . . . . 5 Ala. Code 13A-10-100(b)(2) (1984) . . . . 9 Ariz. Rev. Stat. Ann. 13-2701(1) (1989) . . . . 9 ---------------------------------------- Page Break ---------------------------------------- III Statutes and rules-Continued: Page Ark. Code Ann. 5-53-101(a)(2) (Michie 1993) . . . . 9 Colo. Rev. Stat. 18-8-501(1) (1986) . . . . 9 Fla. Stat. Ann. 837.021(2) (West 1994) . . . . 9 Haw. Rev. Stat. 710-1000(9) (1985) . . . . 9 Ky. Rev. Stat. Ann. 523.010(1) (Michie/Bobbs-Merrill 1990) . . . . 9 Me. Rev. Stat. Ann. tit. 17A, 451(2) (West 1983) . . . . 9 Mont. Code Ann $45-7-201 (3) (1993) . . . . 10 Neb. Rev. Stat. 28-915(3) (1989) . . . . 10 N.D. Cent. Code 12.1-11-04(1) (1985) . . . . 10 N.H. Rev. Stat. Ann. 641:1(II) (1986) . . . . 10 18 Pa. Cons Stat. Ann. 4902(b) (1983) . . . . 10 Tex. Penal Code Ann. 37.04(c) (West 1994) . . . . 10 Utah Code Ann 76-8-501(2) (1995) . . . . 10 17 C. F. R.: Section 240.10b-5 (Rule 10b-5) . . . . 5 Section 240.14a-9 (Rule 14a-9) . . . . 5 Section 240.14e-3 (Rule 14e-3) . . . . 6 Miscellaneous: 22 J. Appleman, insurance Law & Practice (rev. ed. 1979) . . . . 6 S. Marshall & J. Condy, A Treatise on the Law of Insurance (2d ed. 1810) . . . . 6 J. Thayer, A Preliminary Treatise on Evidence at the Common law (reprint 1969) (1898) . . . . 6 S. Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal. L.. Rev. 1867 (1966) . . . . 6 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-514 UNITED STATES OF AMERICA, PETITIONER v. MICHAEL E. GAUDIN ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES Respondent does not challenge the key points underlying our submission that, in a prosecution for false statements under 18 U.S.C. 1001, the materiality of the statements is determined by the judge rather than the jury. Specifically, respondent does not dispute that materiality has historically been determined by the judge rather than the jury in prosecutions for perjury. Nor does he dispute that this Court relied on that historical practice in Sinclair v. United States, 279 U.S. 263 (1929), and Kungys v. United States, 485 U.S. 759, 770 (1988), to hold that materiality was a question of law to be decided by the court under statutes analogous to perjury. Finally, he does not dispute that Section 1001, like the statutes at issue in Sinclair and (1) ---------------------------------------- Page Break ---------------------------------------- 2 Kungys, is analogous to perjury insofar as it pro- hibits false statements to public entities. Respondent nonetheless argues that materiality under Section 1001 must be determined by the jury, for essentially three reasons. First, he argues that materiality is determined by the jury in certain actions involving false statements to private entities. Second, he argues that this Court failed in either Sinclair or Kungys to consider the fundamental principle that a criminal defendant is entitled to have the jury find every fact necessary to constitute the charged offense. Finally, he argues that, because materiality is an essential element of the false statement offense proscribed by Section 1001, the Constitution requires it to be determined by the jury. None of respondent's arguments undermines our submission that the resolution by the court of the materiality of false statements to public officials is constitutional. 1. In our opening brief, we argued that materiality has historically been treated as an issue of law to be decided by the judge rather than the jury in prosecutions for perjury. U.S. Br. 16-21. To meet that argument directly, respondent would be required either (1) to dispute our account of the historical treatment of materialist y in perjury prosecutions, or (2) to explain why it should be disregarded in inter- preting Section 1001. Respondent does neither. Instead, respondent argues that " `materiality' is essentially a `fact-bound' inquiry." Resp. Br. 3. In support of that argument, he relies on the Ninth Circuit's analysis in this case, see id. at 5 (quoting Pet. App. 17a), and on cases decided in "other contexts," besides perjury prosecutions, in which materiality is determined by the jury rather than the ---------------------------------------- Page Break ---------------------------------------- 3 court, Resp. Br. 7, The Ninth Circuit's analysis is flawed, however, and the case law on which res- pondent, relies is inapposite. a. I n the passage of the Ninth Circuit's opinion quoted by respondent, the court stated that materiality is a "fact-bound" inquiry under Section 1001 for two reasons specific to this case: (1) that "[o]ne cannot look at * * * a particular statute or regulation to determine what would affect the decision of the [Department of Housing and Urban Development (HUD)] to insure a[] [Federal Housing Administration (FHA)] loan," but instead "[i]t was necessary to take testimony of department officials" to make that determination; and (2) that some of the amounts on the HUD loan forms that respondent falsely represented would be paid to, or paid by, the strawbuyers "were trivial." Pet. App. 17a. The Ninth Circuit erred by attaching importance to the fact that a HUD official testified in this case. See also National Ass'n of Criminal Defense Lawyers (NACDL) Amicus Br. 5 (emphasizing "testimonial" nature of evidence). The official's testimony con- cerned the manner in which applications for FHA- insured loans are processed. See Pet. App. 5a; see also 2 Tr. 442. The same type of information may often be set forth in regulations or agency publi- cations. Cf., e.g., United States v. Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993) (relying on regulation to determine that defendant's false state- ment to Department of the Treasury was material). The source of the information does not alter its character as a description of the agency's lawful functions. That the information was, in this case, introduced through testimony rather than agency documents does not indicate that materiality is a ---------------------------------------- Page Break ---------------------------------------- 4 factual issue to be determined by the jury in prosecutions under Section 1001. The Ninth Circuit also erred by relying on the "trivial" nature of the amounts of money involved in some of respondent's misrepresentations. Pet. App. 17a. As the dissent below explained, "[t]he proper question is whether false entries on a key line of a government-approved loan application have `a natural tendency to affect' the agency's decision, regardless of the amount in question." Id. at 41a (Kozinski, J., dissenting). That question calls for "a generalized determination * * * that does not vary significantly with the facts of each individual transaction." Id. at 42a-43a. As we explain in our opening brief, the Ninth Circuit's fundamental error was its view 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 ma- teriality." Pet. App. 13a (emphasis added); see U.S. Br. 42-43. As respondent recognizes, however, " the classification of an issue as one of law, to be decided by the court, or one of fact, to be decided by the trier of fact, may be "as much a matter of allocation as it is of analysis. " Resp. Br. 35 n.18 (quoting Miller v. Fenton, 474 U.S. 104, 113-114 (1985)). That a determination of materiality may entail assessment of the facts means only that it "falls somewhere between a pristine legal standard and a simple historical fact." Miller, 474 U.S. at 114. It does not , invalidate history's allocation of materiality deter- minations to the judge in settings analogous to this case. b. Respondent contends that materiality should be determined by the jury in prosecutions under Section ---------------------------------------- Page Break ---------------------------------------- 5 1001 because materiality is a jury question in "other contexts" besides perjury prosecutions. Resp. Br. 7. Respondent's reliance on the treatment of ma- teriality in those other contexts is misplaced. The other contexts discussed by respondent involve misrepresentations or concealments directed at private, rather than public, entities. Respondent discusses the materiality requirement of the federal provisions prohibiting securities fraud, 15 U.S.C. 77q(a)(2) and 78j(b) (Resp. Br. 8-14); mail fraud, 18 U.S.C. 1341, wire fraud, 18 U.S.C. 1343, and bank fraud, 18 U.S.C. 1344 (Resp. Br. 15-19); and "[t]he question of materiality in cases concerning recision of insurance coverage based on material misstate- ments or omissions" (Resp. Br. 19; see also id. at 19- 21). The materiality requirement in those contexts is defined by reference to the possible effect of a misrepresentation or concealment on a reasonable person. For example, a fact omitted from a proxy solicitation is material "if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote." TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976); see also Basic Inc. v. Levinson, 485 U.S. 224, 231-232 (1988) (adopting TSC standard for Securities and Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. 240.10b-5).1 ___________________(footnotes) 1 See also Resp. Br. 8 (pattern jury instruction for materiality in actions for securities fraud), 14 (quoting materiality standard for civil action under SEC Rule 14a-9, 17 C.F.R. 240.14a-9, adopted in TSC), 17-18 (pattern jury instruction for materiality in actions for mail, wire, and bank fraud), 19 (quoting M'Lanahan v. Universal Ins. Co., 26 U.S. (1 Pet.) 170, 188-189 (1828) (materiality standard for actions concerning misrepresentation or concealment in insurance ---------------------------------------- Page Break ---------------------------------------- 6 When materiality is based on the response to a set of facts of a reasonable private person, it is "analogous" to the negligence determination in tort actions, which also requires application of a reasonable person standard. TSC, 426 U.S. at 450 & n. 12. The determination of negligence in tort actions is assigned to the jury, rather than the judge, because of the jury's "unique competence" to decide how a reasonable person would act. Ibid.; see also, e.g., Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657, 663-664 (1873); J. Thayer, A Preliminary Treatise on Evidence at the Common Law 225-228, 252-253 (reprint 1969) (1898); S. Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal. L. Rev. 1867, 1876-1877 (1966). The jury's "unique competence" to apply the reasonable person standard in negligence cases and other actions involving the conduct of private parties does not justify assigning the materiality deter- ___________________(footnotes) contracts)); see also, e.g., SEC v. Maio, Nos. 94-1233 & 94-1234, 1995 WL 117091, at *12 (7th Cir. Mar. 21, 1995) (discussing materiality requirement for violations of SEC Rules 10b-5 and 14e-3, 17 C.F.R. 240.14e-3); SEC v. Steadman, 967 F.2d 636, 643 (D.C. Cir. 1992) ("general definition of materiality under federal securities laws" refers to importance of omitted or misrepresented fact to "reasonable shareholder"); 22 J. Appleman, Insurance Law & Practice $13041, at 338 (rev. ed. 1979) (sample jury instruction on materiality standard, summarized as "whether responsible, careful and intelligent insurance underwriters would have recommended insurance" based on misrepresentations by applicant); 1 S. Marshall & J. Condy, A Treatise on the Law of Insurance 467 (2d ed. 1810) ("Every fact and circumstance which can possibly influence the mind of any prudent and intelligent insurer, in determining whether he will underwrite the policy at all, or at what premium he will underwrite it, is material."). ---------------------------------------- Page Break ---------------------------------------- 7 mination to the jury in prosecutions under Section 1001 and other statutes involving false statements to public entities. Under those statutes, materiality is not based on a reasonable private person standard. It is instead tied to the legal responsibilities of the particular governmental decisionmaker to which the false statement was addressed. As the Second Circuit has explained: Where a false statement is made to a public body or its representative, materiality refers to the impact that the statement may reasonably have on the ability of that agency to perform the functions assigned to it by law. The question is not what effect the statement actually had; its actual effect would plainly present an issue of fact. The question is rather whether the statement had the potential for an obstructive or inhibitive effect. A consideration of this potential requires an analysis of the responsibilities of the public agency-responsibilities that are assigned by law-and analysis of the relevance of the statement to those responsibilities. Both rele vance and the nature of a duty are traditionally questions of law to be decided by the court. Perforce the interrelationship of these two legal questions is a question of law. United States v. Greenberg, 735 F.2d 29,31 (1984). The classic definition of materiality in a Section 1001 case is whether the concealment or misrepre- sentation "has a natural tendency to influence, or was capable of influencing, the decision of the decision- making body to which it was addressed." Kungys, 485 U.S. at 770 (internal quotation marks omitted). The materiality requirement in most contexts indicates ---------------------------------------- Page Break ---------------------------------------- 8 that the misrepresented or concealed fact would have had some influence on the decisionmaker, even though the fact need not have actually affected the decision in question. But what is distinctive about the materiality requirement in statutes prohibiting false statements to public officials is that the decisions of those officials are governed by legal requirements, rather than what a reasonable private person may have considered important. Thus, materiality depended in this case on the potential effect of respondent's misrepresentations on HUD'S discharge of its official responsibilities, rather than on their significance to any particular individual in that agency. See Resp. Br. 1 (respon- dent disputed whether his misrepresentations were of "significance to FHA"); see also Pet. App. 17a (recognizing that materiality depended on "what would affect the decision of the HUD to insure an FHA loan"); cf. United States v. Hansen, 772 F.2d 940, 950 (D.C. Cir. 1985), cert. denied, 475 U.S. 1045 (1986). In sum, although determinations of "materiality" are made in actions involving false statements to private entities and in actions involving false statements to public entities, the character of the determination in the two settings differs. In actions involving private entities, materiality is based on a reasonable person standard that juries have long been considered competent to apply. In actions involving public entities, materiality is based on the possible impact of a misrepresentation or concealment on the legal duties of the entity, a determination that judges rather than juries are competent to make. Because ---------------------------------------- Page Break ---------------------------------------- 9 this case arises in the second setting, respondent's reliance on case law in the first setting is misplaced. 2 2. Respondent challenges the government's reliance on Sinclair and Kungys, asserting that "a growing number of recent decisions" have declined to follow the "antiquated dictum of Sinclair" and the "more recent dictum in Kungys." Resp. Br. 21, 26. As we show in our opening brief, however, the trend is in the opposite direction. Every regional court of appeals except the Ninth Circuit has held that materiality is determined by the judge in prose- cutions under Section 1001. See U.S. Br. 22 & n.15. Moreover, numerous courts of appeals, including the Ninth Circuit, have reached the same conclusion for other federal statutes proscribing false statements to public entities. See id. at 30 n.22. Appellate courts in at least 20 States have reached that conclusion with respect to analogous state statutes. See id. at 29 n.21; see also State v. Sands, 467 A.2d 202, 215-216 (N.H. 1983).3 ___________________(footnotes) 2 Respondent asserts (Resp. Br. 14, 18) that the materiality determination may be equally "complex" whether a case involves a false statement to a private entity or one to a public entity. As we explain in our opening brief and in the text, pp. 8-9, supra, however, it is the nature of the determination, rather than its complexity, that is relevant in deciding whether the determination should be made by the judge or the jury. U.S. Br. 43-44. 3 In addition, several States provide by statute that the materiality of an allegedly perjured statement is a question of law to be determined by the court. See, e.g., Ala. Code 13A- 10-100(b)(2) (1984); Ariz. Rev. Stat. Ann. 13-2701(1) (1989); Ark. Code Ann. 5-53-101(a)(2) (Michie 1993); Colo. Rev. Stat. 18-8-501(1) (1986); Fla. Stat. Ann. 837.021(2) (West 1994); Haw. Rev. Stat. 710-1000(9) (1985); Ky. Rev. Stat. Ann. 523.010(1) (Michie/Bobbs-Merrill 1990); Me. Rev. Stat. Ann. tit. ---------------------------------------- Page Break ---------------------------------------- 10 To counter that overwhelming body of case law, respondent identifies only three decisions-two by state supreme courts, and one by a federal district court. See Resp. Br. 23-26 (discussing United States v. Taylor, 693 F. Supp. 828, 839 (N.D. Cal. 1988); State v. Anderson, 603 A.2d 928, 932-935 (N.J. 1992); Commonwealth v. McDuffee, 398 N.E.2d 463,467-470 (Mass. 1979)). Although those decisions hold that materiality is determined by the jury under a statute proscribing false statements to a public entity, they provide only limited support for respondent's position. Taylor arose in the Ninth Circuit and is based on the same erroneous precedent of that court as the decision below. 693 F. Supp. at 833-835. Anderson is based on a state, not the federal, constitution. 603 A.2d at 935. Finally, McDuffee is based largely on the view that "[e]arly English case law presents a split of opinion as to whether the issue of materiality should be treated as a question of law." 398 N.E.2d at 467. We show in our opening brief that that view is mistaken, and, significantly, respondent does not challenge that showing. See U.S. Br. 16-21. The other two decisions cited by respondent provide no support for his position. See Resp. Br. 21- 22, 25-26 (discussing United States v. Staniforth, 971 F.2d 1355 (7th Cir. 1992), and People v. Hedgecock, 795 P.2d 1260 (Cal. 1990)). Staniforth involved a prose- cution for bank fraud under 18 U.S.C. 1014. 971 F.2d ___________________(footnotes) 17A, 451(2) (West 1983); Mont. Code Ann. 45-7-201(3) (1993); Neb. Rev. Stat. 28-915(3) (1989); N.H. Rev. Stat. Ann. 641:1(II) (1986); N.D. Cent. Code 12.1-11-04(1) (1985); 18 Pa. Cons. Stat. Ann. 4902(b) (1983); Tex. Penal Code Ann. 37.04(c) (West 1994); Utah Code Ann. 76-8-501(2) (1995); see also U.S. Br. 18 (citing similar British statute). ---------------------------------------- Page Break ---------------------------------------- 11 at 1358. Hedgecock involved a perjury prosecution under a state political reform law designed to inform voters about the financial affairs of elected officials. 795 P.2d at 1264-1265. The court in each case recognized that the materiality standard under such statutes is different from the materiality standard under statutes proscribing false statements to public entities. Staniforth, 971 F.2d at 1358; Hedgecock, 795 P.2d at 1265-1266. Accordingly, the court in each case concluded that case law concerning the latter type of statute-including this Court's decisions in Sinclair and Kungys-is inapposite to the question whether materiality under statutes involving false statements or concealments directed at private persons is determined by the judge or the jury. Staniforth, 971 F.2d at 1358; Hedgecock, 795 P.2d at 1265-1267. in particular, the court in Staniforth, while not ultimately deciding whether materiality in a bank fraud prosecution is a question of law, 971 F.2d at 1359, explained, id. at 1358: Kungys involved a false statement to a govern- ment agency * * *, and the tendency of a statement to mislead the government depends on its relevance to the criteria applied by the agency. * * * Relevance is a legal determination. Juries are told what is relevant; they do not make determinations of relevance. But the question whether a false statement to a bank or other business firm is capable of influencing the firm's decisions is no more a question of law than whether a false statement to a prospective investor is capable of influencing his decision to invest and therefore is material to that decision. ---------------------------------------- Page Break ---------------------------------------- 12 The court in Hedgecock found Sinclair and Kungys inapposite on similar grounds, and relied instead on this Court's decision in TSC, which, as discussed above, involved material concealments from private entities. See Hedgecock, 795 P.2d at 1267. Thus, far from supporting respondent, Staniforth and Hedgecock undermine his reliance on case law assigning the materiality determination to juries under statutes proscribing false statements to or for the benefit of private, rather than public, entities. 3. Respondent asserts that the Due Process Clause and the Sixth Amendment compel a jury determination of materiality because it is an element of the offense. Resp. Br. 27-39. The decisions on which he relies, however, do not assist in resolving the question before this Court. a. In discussing "[t]he requirements of due process" (Resp. Br. 27), respondent summarizes several decisions of this Court in which criminal defendants challenged the way in which a State allocated the burden of proof at trial on a particular fact (id. at 27-29). As discussed in our opening brief, those decisions are inapposite, for they involved factual elements of crimes, not questions of law. U.S. Br. 38-39 & n.27. In any event, respondent relies on the decisions only to argue that it cannot be harmless error for a court to take from the jury an issue that the jury is constitutionally required to decide. Resp. Br. 29 & n.15. The harmless-error issue, however, is not before this Court. b. Respondent's discussion of the constitutional right to a jury trial in a criminal case likewise is tangential to analysis of the question presented here. See Resp. Br. 30-34. He begins (id. at 30-31) by establishing "the interrelationship between the due ---------------------------------------- Page Break ---------------------------------------- 13 process reasonable doubt requirement and the Sixth Amendment right to have a jury decide every fact necessary for conviction" (id. at 31). We acknowl- edge that connection in our opening brief. U.S. Br. 36-37. Respondent ends (Resp. Br. 32-34) by repeating his harmless-error argument. c. Finally, respondent argues (Resp. Br. 34-39), in accordance with the Ninth Circuit's reasoning (Pet. App. 10a-14a), that materiality must be determined by the jury because it is an element of the offense prescribed in Section 1001. Resp. Br. 34-35. Respon- dent appears to base that argument in part on what he regards to have been Congress's intent in enacting Section 1001. See, e.g., Resp. Br. 39 ("the power of the legislature is not the issue; it is how that power was exercised which determines whether the jury must decide the issue'').4 As we explain in our opening brief, however, there is no evidence that Congress ___________________(footnotes) 4 See also Resp. Br. 36 (it is "strictly the domain of Congress to determine and define the essential elements of any criminal offense" ), 37 ("[applying the same principles of statutory interpretation" as applied in United States v. Rodgers, 466 U.S. 475 (1984), "`materiality' can readily be interpreted and understood by jurors"), Resp. Br. 37 ("where Congress has designated materiality to be an essential element of an offense, as it has with false statement prosecutions brought pursuant to 18 U.S.C. 1001, then the distinction between issues of fact and law have little relevance to the determination whether the element must be decided by the jury"), 38 ("What the Government fails to acknowledge is that Congress did include materiality in the false statement statute, making it an essential element that must therefore be submitted to the jury."), 43 ("Congress has expressed its view that materiality is an essential element of the false statement statute, and should not be prohibited from doing so by reliance on common law traditions incorporated through the Sinclair dictum."). ---------------------------------------- Page Break ---------------------------------------- 14 intended in Section 1001 to depart from the wide- spread and virtually unquestioned common law treatment of materiality in perjury prosecutions as an issue of law for resolution by the courts. See U.S. Br. 24. In the absence of such evidence, Congress is presumed to have adopted that tradition as part of the "cluster of ideas" surrounding the concept of materiality in analogous state and federal statutes. See Morissette v. United States, 342 U.S. 246, 263 (1952). Respondent appears to argue that, regardless of congressional intent, the Constitution requires the jury to decide every issue on which liability for an offense depends. See Resp. Br. 34 ("[w]henever an issue is an essential element of a criminal offense, constitutional principles of due process and the right to a jury trial must take precedence"). Even the Ninth Circuit did not embrace so broad a position. On the contrary, it recognized that an element of a crime may permissibly be decided by the judge "as a matter of law * * * if the determination had no factual component at all. " Pet. App. 12a.5 While the ___________________(footnotes) 5 The Ninth Circuit has in fact resolved elements of crimes as a matter of law, even when the appraisal of facts did enter into the decision. See United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993) (district court "may determine as a matter of law the existence of federal jurisdiction over [a] geographic area"; jury determines where crime was actually committed); United States v. Jackson, 436 F.2d 39 (9th Cir. 1970) (deter- mining as a matter of law whether a radio purchased with government funds and used in a federally subsidized club was "property of the United States" under federal stolen property statute), cert. denied, 403 U.S. 906 (1971). Other circuits follow the same approach. See, e.g., United States v. Hernandez-Fundora, No. 93-1632, 1995 WL 62811 (2d Cir. Feb. 14, 1995) (whether a particular place is within the special ---------------------------------------- Page Break ---------------------------------------- 15 Constitution entitles a criminal defendant to have the jury decide the factual components of the elements of the offense with which he is charged, see U.S. Br. 33, the determination of whether a statement was "predictably capable of affecting * * * the official decision," Kungys, 485 U.S. at 771, is not a factual issue. 4. a. In our opening brief, we argue that the history of assigning materiality in perjury cases to the judge, rather than the jury, strongly supports its constitutionality. U.S. Br. 26-31. We explained that history is relevant in reviewing both due process challenges and challenges based on the constitutional right to a jury trial in a criminal case. Ibid. Respondent observes that historical endorsement of a practice does not immunize it from due process review. See Resp. Br. 43-44; see also NACDL Amicus Br. 9-10. We agree. U.S. Br. 27. In our opening brief, however, we also show that the assignment of materiality to the jury does not offend the principle of due process articulated in In re Winship, 397 U.S. 358 (1970) (see U.S. Br. 31-40), or any other "recognized principle of `fundamental fairness'" (id. at 40 (quoting Medina v. California, 112 S. Ct. 2572, 2578 (1992)). Respondent argues that "fundamental fairness" analysis is "primarily utilized with federal challenges to state procedures" (Resp. Br. 43), and he ___________________(footnotes) territorial jurisdiction of the United States is a question of law): United States v. Howard, 855 F.2d 832, 834 (llth Cir. 1988) (whether funds received by the defendant were reportable income in a tax prosecution is a question of law); United States v. Guy, 456 F.2d 1157, 1163 (8th Cir.) (whether Federal Reserve notes are "obligations of the United States" in a counterfeiting prosecution is a question of law), cert. denied, 409 U.S. 896 (1972). ---------------------------------------- Page Break ---------------------------------------- 16 suggests that it is "of' questionable relevance" here (id. at 44 n.21). This Court, however, has undertaken that analysis in reviewing due process challenges to federal, as well as state, criminal procedures. See, e.g., Dowling v. United States, 493 U.S. 342, 352-353 (1990) (admission of evidence at trial); United States v. Lovasco, 431 U.S. 783, 790 (1977) (preindictment delay). Respondent errs in arguing that history has little bearing on whether a practice comports with the Constitution's jury trial guarantee. See Resp. Br. 40-43, 45. In support of that argument, respondent relies on Williams v. Florida, 399 U.S. 78 (1970), which upheld a state rule authorizing juries of fewer than 12 people in noncapital criminal trials. Williams makes clear that the Constitution does not require "every feature of the [criminal] jury as it existed at common law." Id. at 91. Williams does not address the quite different issue of under what circumstances the Constitution invalidates a common law feature of a jury. Elsewhere, this Court has indicated that the (constitution may require that a common law feature of a ,jury yield to changes in society's concept of the community, which the jury is designed to reflect. See J.E.B. v. Alabama, 114 S. Ct. 1419, 1426 (1994) (equal protection bars gender discrimination in use of peremptory challenges); Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (Sixth Amendment bars exclusion of women from jury). There has been no such change, however, in the customary view of materiality. See U.S. Br. 29-30; e.g., State v. Sands, 467 A.2d at 215-216. b. Respondent argues that "Sinclair's foundation no longer rests on solid ground" because "this Court's interpretation of the right to a jury trial has ---------------------------------------- Page Break ---------------------------------------- 17 not remained static since * * * Sinclair was decided." Resp. Br. 45, 47; see also NACDL Amicus Br. 6-7. In holding that "pertinency" was properly determined by the judge rather than the jury, the Court in Sinclair reasoned that pertinency was analogous to two other sorts of determinations: a determination "concerning relevancy at the trial of issues in court," which the Court noted is "uniformly held * * * a question of law"; and a determination "as to materiality of false testimony charged as perjury," which also "is one for the court." 279 U.S. at 298, discussed in U.S. Br. 13. Now, as when Sinclair was decided, courts (not juries) determine whether evidence is relevant for purposes of admission at trial. See U.S. Br. 43 & n.30; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796 & n.10 (1993). Similarly, courts continue to determine the materiality of allegedly perjured testimony; indeed, materiality deter- minations are made by the court, rather than the jury, in prosecutions for other offenses, besides perjury, involving false statements to public entities. See U.S. Br. 22 n.15, 30 n.22. Thus, the foundation of Sinclair is solid. It does not matter that, after Sinclair, the Court addressed many other issues concerning a criminal defendant's right to a jury trial, such as whether the right attaches in state proceedings. See Resp. Br. 47 (citing, inter alia, Duncan v. Louisiana, 391 U.S. 145 (1968)). The only aspect of the right at issue here is a criminal defendant's entitlement to have the jury find every fact necessary to constitute the charged offense. See, e.g., Resp. Br. 4, 27; Pet. App. 6a-9a. That principle was well-established when Sinclair was decided, as we explain in our opening brief (see ---------------------------------------- Page Break ---------------------------------------- 18 U.S. Br. 33-35), and it has remained constant, see Sullivan v. Louisiana, 113 S. Ct. 2078, 2080 (1993). Indeed, the defendant in Sinclair invoked that principle unsuccessfully in arguing that "per- tinency" under the statute at issue had to be determined by the jury. See U.S. Br. 34-35; see also Taylor, 693 F. Supp. at 838 n.21. Respondent himself states that the principle is "as old as the concept of the jury trial itself." Resp. Br.40. 6 ___________________(footnotes) 6 Having held that pertinency is properly determined by the court, rather than the jury, the Court in Sinclair stated that a contrary holding "would be incongruous and contrary to well-established principle s." 279 U.S. at 299. In connection with that statement, the Court cited (ibid.) ICC v. Brimson, 154 U.S. 447, 489 (1894), and Horning v. District of Columbia, 254 U.S. 135 (1920). Although respondent suggests (Resp. Br. 45-46) that parts of Brirnson and Horning are no longer good law, he does not challenge the propositions for which the Court apparently cited those decisions in Sinclair. In Brimson, the Court determined that a duty to comply with an ICC subpoena depended in part on whether "the testimony sought, and the books, papers, etc., called for, relate to the matter under investigation." 154 U.S. at 476. The Court went on to hold that the existence of such a duty "is manifestly not one for the determination of a jury" because it "is not one of fact, but of law exclusively." Id. at 488. Because of the similarity between the issue whether material sought by an ICC subpoena "relate[d] to the matter under investigation" by the ICC and the issue whether the question posed by a congressional committee was "pertinent" to the matter under investigation by the committee, the holding in Brimson that the former issue was one of law to be determined by the court supported the holding in Sinclair that the latter issue was likewise one of law to be determined by the court. In Horning, the Court affirmed a criminal conviction despite the trial court's "regrettable peremptoriness of tone" in suggesting to the jury that it should return a guilty verdict. 254 U.S. at 138. Although respondent suggests (Resp. Br. 46- ---------------------------------------- Page Break ---------------------------------------- 19 c. Although respondent recognizes at one point that the principle on which he relies here long pre- dated Sinclair, elsewhere he repeats the Ninth Circuit's mistake by treating the principle as originating in In re Winship, supra. See Resp. Br. 4, 47-48. Based on that error, he criticizes the lower courts for following Sinclair while "mak[ing] no mention of Winship." Resp. Br. 48. Because the principle that respondent attributes to Winship was already well-established when Sinclair was decided and was specifically raised in Sinclair, however, the lower federal courts have correctly determined that they are bound by Sinclair, especially in light of its reaffirmance in Kungys. See United States v. Daily, 921 F.2d 994, 1005-1006 & n.14 (lOth Cir. 1990), cert. denied, 502 U.S. 952 (1991); see also United States v. Paxson, 861 F.2d 730, 732 (D.C. Cir. 1988); United States v. Abadi, 706 F.2d 178, 180 n.2 (6th Cir.), cert. denied, 464 U.S. 821 (1983). ___________________(footnotes) 47) that Horning is no longer good law in light of later decisions stating that a trial court judge cannot direct a guilty verdict, Justice Holmes' opinion for the Court in Horning itself recognized that principle, but simply held that the trial court's suasion was not tantamount to a directed verdict. In any event, the Court in Sinclair presumably cited Horning for the unexceptionable statement that "the judge always has the right and duty to tell [the jury] what the law is upon this or that state of facts." Horning, 254 U.S. at 138. ---------------------------------------- Page Break ---------------------------------------- 20 For the foregoing reasons and those stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General APRIL 1995