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SUPREME COURT OF THE UNITED STATES

No. 95–1228

UNITED STATES, PETITIONER v. JERRY E. WELLS and KENNETH R. STEELE

on writ of certiorari to the united states court of appeals for the eighth circuit

[February 26, 1997]

Justice Souter delivered the opinion of the Court.

The principal issue before us is whether materiality of falsehood is an element of the crime of knowingly making a false statement to a federally insured bank, 18 U. S. C. §1014. We hold that it is not.

In 1993, the Government charged respondents, Jerry Wells and Kenneth Steele, with violating and conspiring to violate the cited statute as officers and part-owners of Copytech Systems, Inc., a lessor of office copiers for a monthly fee covering not only use of the equipment but any service that might be required. To raise cash, Copytech sold its interest in the income stream from these contracts to banks.

In Count I of the indictment, the Government charged respondents with conspiring to violate §1014 by concealing from several banks the true contractual terms. Respondents supposedly conspired to provide the banks with versions of lease contracts purporting to indicate that Copytech's customers were responsible for servicing the equipment when, in fact, secret side agreements placed that responsibility on Copytech at no further cost to the lessees. See App. 24–25; 63 F. 3d 745, 748 (CA8 1995). The Government alleged that respondents concealed the service obligations in order to avoid tying up needed cash in reserve accounts, which the banks might have required Copytech to maintain if they had known of the company's servicing obligations. Id., at 748.

In Count II, respondents were charged with violating §1014 by giving a bank forgeries of respondents' wives' signatures on personal guaranties designed to enable the bank to pursue the wives' assets if Copytech defaulted on any liability to the bank. See App. 21, 30–31; 63 F. 3d, at 748. Each count of the indictment charged respondents with submitting one or more statements that were both false and "material." App. 24, 25, 29, 30–31.

At the end of the trial, the District Court instructed the jury, at the Government's behest, that withholding a "material fact" made a statement or representation false, id., at 41, 42, and defined a material fact as one "that would be important to a reasonable person in deciding whether to engage or not to engage in a particular transaction," id., at 42. Although there was no controversy over the law as stated in these instructions, the Government argued that materiality was for the judge to determine, while respondents said it was an issue for the jury. 63 F. 3d, at 749, nn. 3 and 4. Following Eighth Circuit precedent then prevailing, the District Court agreed with the Government and told the jury that "[t]he materiality of the statement . . . alleged to be false . . . is not a matter with which you are concerned and should not be considered by you in determining the guilt or innocence of the defendant[s]," App. 43. The jury convicted respondents on both counts, the court treated the statements as material, and respondents appealed.

While the appeal was pending, we decided United States v. Gaudin, 515 U. S. ___ (1995), in which the parties agreed that materiality was an element of 18 U. S. C. §1001, but disputed whether materiality was a question for the judge or jury, id., at ___ (slip op., at 3). Applying the rule that "[t]he Constitution gives a criminal defendant the right to have a jury determine . . . his guilt of every element of the crime with which he is charged," we held that the jury was entitled to pass on the materiality of Gaudin's statements, id., at ___ (slip op., at 17). When the Court of Appeals in this case requested supplemental briefing on the applicability of Gaudin, respondents argued that under §1014 materiality is an element on which they were entitled to a jury's determination; the Government argued, for the first time, that materiality is not an element under §1014, so that no harm had been done when the judge dealt with the issue. The Court of Appeals agreed with respondents, vacated their convictions and sentences, and remanded the case for a new trial. 63 F. 3d, at 749–751.

We granted the Government's petition for certiorari to decide whether materiality of a false statement or report is an element under §1014. 517 U. S. ___ (1996). We now vacate and remand.

We first address respondents' efforts to block us from reaching the question on which we granted certiorari. Given the Government's proposal for jury instructions to the effect that materiality is an element under §1014, respondents argue that Federal Rule of Criminal Procedure 30 and the doctrines of "law of the case" and "invited error" each bar the Government from taking the position here that materiality is not an element. None of these reasons stands in our way to reaching the merits.

Rule 30 (applicable in this Court, see Fed. Rules Crim. Proc. 1, 54(a)), provides that "[n]o party may assign as error any portion of the charge [given to the jury] . . . unless that party objects thereto before the jury retires to consider its verdict." But the Government is not challenging the jury instruction in an effort to impute error to the trial court; it is merely arguing that the instruction it proposed was harmless surplusage insofar as it was directed to the jury.

As for the two doctrines, respondents are correct that several Courts of Appeals have ruled that when the Government accepts jury instructions treating a fact as an element of an offense, the "law of the case" doctrine precludes the Government from denying on appeal that the crime includes the element. See United States v. Killip, 819 F. 2d 1542, 1547–1548 (CA10), cert. denied sub nom. Krout v. United States, 484 U. S. 987 (1987); United States v. Tapio, 634 F. 2d 1092, 1094 (CA8 1980); United States v. Spletzer, 535 F. 2d 950, 954 (CA5 1976). They are also correct that Courts of Appeals have stated more broadly under the "invited error" doctrine "`that a party may not complain on appeal of errors that he himself invited or provoked the [district] court . . . to commit.'" United States v. Sharpe, 996 F. 2d 125, 129 (CA6) (quoting Harvis v. Roadway Express, Inc., 923 F. 2d 59, 60 (CA6 1991)), cert. denied, 510 U. S. 951 (1993). But however valuable these doctrines may be in controlling the party who wishes to change its position on the way from the district court to the court of appeals, they cannot dispositively oust this Court's traditional rule that we may address a question properly presented in a petition for certiorari if it was "pressed [in] or passed on" by the Court of Appeals, United States v. Williams, 504 U. S. 36, 42 (1992) (internal quotation marks and emphasis omitted). Accordingly, we have treated an inconsistency between a party's request for a jury instruction and its position before this Court as just one of several considerations bearing on whether to decide a question on which we granted certiorari. See Springfield v. Kibbe, 480 U. S. 257, 259–260 (1987). Here, it seems sensible to reach the question presented.

The question of materiality as an element was raised before the Court of Appeals, ruled on there, clearly set forth in the certiorari petition, fully briefed, and argued. Nor would reaching the issue excuse inattention or reward cunning. For some time before respondents' trial in 1993, the Eighth Circuit had assumed that the Government was bound to prove a false statement's materiality as an element under §1014, see 63 F. 3d, at 750–751; United States v. Ribaste, 905 F. 2d 1140, 1143 (CA8 1990); United States v. McKnight, 771 F. 2d 388, 389 (CA8 1985), and had treated this issue as one for the judge, not the jury, see United States v. Ribaste, supra, at 1143. Since the Government was confident that it had evidence of materiality to satisfy the Circuit rule, it had no reason not to address the element when it drafted the indictment and its proposed jury instructions. When Gaudin rendered it reversible error to assign a required materiality ruling to the court, the Government suddenly had reason to contest the requirement to show materiality at all. Nothing the Government has done disqualifies it from the chance to make its position good in this Court.

We accordingly consider whether materiality of falsehood is an element under §1014, understanding the term in question to mean "ha[ving] a natural tendency to influence, or [being] capable of influencing, the decision of the decisionmaking body to which it was addressed," Kungys v. United States, 485 U. S. 759, 770 (1988) (internal quotation marks omitted); see also United States v. Gaudin, supra, at ___ (slip op., at 2). We begin with the text. See Community for Creative Non-Violence v. Reid, 490 U. S. 730, 739 (1989). Section 1014 criminalizes "knowingly mak[ing] any false statement or report . . . for the purpose of influencing in any way the action" of an FDIC-insured bank "upon any application, advance, . . . commitment, or loan." 18 U. S. C. §1014. Nowhere does it further say that a material fact must be the subject of the false statement or so much as mention materiality. To the contrary, its terms cover "any" false statement that meets the other requirements in the statute, and the term "false statement" carries no general suggestion of influential significance, see Kungys v. United States, supra, at 781; cf. Kay v. United States, 303 U. S. 1, 5–6 (1938). Thus, under the first criterion in the interpretive hierarchy, a natural reading of the full text, see United States v. American Trucking Assns., Inc., 310 U. S. 534, 542–543 (1940), materiality would not be an element of §1014.

Nor have respondents come close to showing that at common law the term "false statement" acquired any implication of materiality that came with it into §1014. We do, of course, presume that Congress incorporates the common-law meaning of the terms it uses if those "`terms . . . have accumulated settled meaning under . . . the common law'" and "`the statute [does not] otherwise dictat[e],'" Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318, 322 (1992) (quoting Community for Creative Non-Violence v. Reid, supra, at 739). Respondents here, however, make no claims about the settled meaning of "false statement" at common law; they merely note that some common-law crimes involving false statements, such as perjury, required proof of materiality. See Brief for Respondents 23–24. But Congress did not codify the crime of perjury or comparable common-law crimes in §1014; as we discuss next, it simply consolidated 13 statutory provisions relating to financial institutions, and, in fact, it enacted a separate general perjury provision at 18 U. S. C. §1621, see 62 Stat. 773.

Statutory history confirms the natural reading. When Congress originally enacted §1014 as part of its recodification of the federal criminal code in 1948, 62 Stat. 752, it explicitly included materiality in other provisions involving false representations. Even more significantly, of the 13 provisions brought together by §1014, 10 had previously contained no express materiality provision and received none in the recodification, while 3 of the 13 had contained express materiality requirements and lost them in the course of consolidation. See Williams v. United States, 458 U. S. 279, 288 (1982). The most likely inference in these circumstances is that Congress deliberately dropped the term "materiality" without intending materiality to be an element of §1014. See United States v. Shabani, 513 U. S. 10, 13–14 (1994). While two of the three offenses from which the express materiality requirement was dropped used the term "representation," see n. 12, supra, and thus could have included a materiality element implicitly, see Kungys v. United States, 485 U. S., at 781 (noting that "misrepresentation" had been held to imply materiality), the remaining eleven would not have, as was clear from the opinion of the Court in Kay v. United States, 303 U. S. 1 (1938). Kay had construed one of the ten statutes that were later mirrored in the language of §1014; when the petitioner claimed that the statements she had made could not "endanger or directly influence any loan made by" the decisionmaker, id., at 5, we thought her arguments unimpressive, ibid., and explained that

"[i]t does not lie with one knowingly making false statements with intent to mislead the officials of the Corporation to say that the statements were not influential or the information not important. There can be no question that Congress was entitled to require that the information be given in good faith and not falsely with intent to mislead. Whether or not the Corporation would act favorably on the loan is not a matter which concerns one seeking to deceive by false information. The case is not one of an action for damages but of criminal liability and actual damage is not an ingredient of the offense." Id., at 5–6.

Although some courts have read Kay as holding only that there is no need for the Government to prove that false statements actually influenced the decisionmaker, see, e.g., United States v. Goberman, 458 F. 2d 226, 229 (CA3 1972), the opinion speaks of the importance of the statements as well as their efficacy, and no one reading Kay could reasonably have assumed that criminal falsity presupposed materiality. Since we presume that Congress expects its statutes to be read in conformity with this Court's precedents, see, e.g., North Star Steel Co. v. Thomas, 515 U. S. ___, ___ (1995) (slip op., at 4), and since the relevant language of the statute in Kay was substantially like that in §1014, Kay stands in the way of any assumption that Congress might have understood an express materiality provision to be redundant.

Respondents' remaining arguments for affirmance are unavailing. They contend that Congress has ratified holdings of some of the Courts of Appeals that materiality is an element of §1014 by repeatedly amending the statute without rejecting those decisions. But the significance of subsequent congressional action or inaction necessarily varies with the circumstances, and finding any interpretive help in congressional behavior here is impossible. Since 1948, Congress has amended §1014 to modify the list of covered institutions and to increase the maximum penalty, but without ever touching the original phraseology criminalizing "false statement[s]" made "for the purpose of influencing" the actions of the enumerated institutions. We thus have at most legislative silence on the crucial statutory language, and we have "frequently cautioned that `[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law,'" NLRB v. Plasterers, 404 U. S. 116, 129–130 (1971) (quoting Girouard v. United States, 328 U. S. 61, 69 (1946)). But even if silence could speak, it could not speak unequivocally to the issue here, since over the years judicial opinion has divided on whether §1014 includes a materiality element, see n. 3, supra, and we have previously described the elements of §1014 without any mention of materiality, see Williams v. United States, 458 U. S., at 284. It would thus be impossible to say which view Congress might have endorsed. See Fogerty v. Fantasy, Inc., 510 U. S. 517, 527–532 (1994).

Respondents also rely on the 1948 Reviser's Note to §1014, which discussed the consolidation of the 13 provisions into one, and explained that, apart from two changes not relevant here, the consolidation "was without change of substance," Historical and Revision Notes following §1014, 18 U. S. C., p. 247. Respondents say that the revisers' failure to mention the omission of materiality from the text of §1014 means that Congress must have "completely overlooked" the issue. Brief for Respondents 29–30. But surely this indication that the "staff of experts" who prepared the legislation, Muniz v. Hoffman, 422 U. S. 454, 470, n. 10 (1975), either overlooked or chose to say nothing about changing the language of three of the former statutes does nothing to muddy the ostensibly unambiguous provision of the statute as enacted by Congress, cf. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980) ("[a]bsent a clearly expressed legislative intention to the contrary [statutory] language must ordinarily be regarded as conclusive"). In any event, the revisers' assumption that the consolidation made no substantive change was simply wrong. As respondents candidly conceded at oral argument, they failed to discover a single case holding that any of the predecessor statutes lacking a materiality requirement implicitly contained one, and after our decision in Kay v. United States, 303 U. S. 1 (1938), Congress could not have assumed that a materiality element was implicit in a comparable statute that was silent on the issue, see supra, at 10–11. Dropping the materiality element from the three statutes could not, then, reasonably have been seen as making no change. Those who write revisers' notes have proven fallible before. See State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523, 532, n. 11 (1967).

Respondents next urge that we follow the reasoning of some Courts of Appeals in reading materiality into the statute to avoid the improbability that Congress intended to impose substantial criminal penalties on relatively trivial or innocent conduct. See 63 F. 3d, at 751; United States v. Williams, 12 F. 3d 452, 458 (CA5 1994); United States v. Staniforth, 971 F. 2d 1355, 1358 (CA7 1992). But we think there is no clear call to take such a course. It is true that we have held §1014 inapplicable to depositing false checks at a bank, in part because we thought that it would have "ma[d]e a surprisingly broad range of unremarkable conduct a violation of federal law," Williams v. United States, supra, at 286–287, n. 8, and elsewhere thought it possible to construe a prohibition narrowly where a loose mens rea requirement would otherwise have resulted in a surprisingly broad statutory sweep, see United States v. X-Citement Video, Inc., 513 U. S. 64, 71–72 (1994). But an unqualified reading of §1014 poses no risk of criminalizing so much conduct as to suggest that Congress meant something short of the straightforward reading. The language makes a false statement to one of the enumerated financial institutions a crime only if the speaker knows the falsity of what he says and intends it to influence the institution. A statement made "for the purpose of influencing" a bank will not usually be about something a banker would regard as trivial, and "it will be relatively rare that the Government will be able to prove that" a false statement "was . . . made with the subjective intent" of influencing a decision unless it could first prove that the statement has "the natural tendency to influence the decision," Kungys v. United States, 485 U. S., at 780–781. Hence the literal reading of the statute will not normally take the scope of §1014 beyond the limit that a materiality requirement would impose.

Finally, the rule of lenity is no help to respondents here. "The rule of lenity applies only if, `after seizing everything from which aid can be derived,' . . . we can make `no more than a guess as to what Congress intended.'" Reno v. Koray, 515 U. S. ___, ___ (1995) (slip op., at 14) (quoting Smith v. United States, 508 U. S. 223, 239 (1993), and Ladner v. United States, 358 U. S. 169, 178 (1958)). Read straightforwardly, §1014 reveals no ambiguity, its mens rea requirements narrow the sweep of the statute, and this is not a case of guesswork reaching out for lenity.

Respondents advance two further reasons to affirm the Court of Appeals's judgment, even on the assumption that materiality is not an element. According to respondents, the trial judge's instruction that "[t]he materiality of the statement . . . alleged to be false . . . is not a matter with which you are concerned and should not be considered by you in determining the guilt or innocence of the defendant[s]," App. 43, probably left the jurors with the impression that the statements as alleged would have been material, and that impression could have improperly influenced the jury in passing on the elements of falsity and purpose. Respondents also suggest that because the indictment alleged materiality, any ruling that materiality need not be shown in this case would impermissibly "amend" the indictment contrary to the Fifth Amendment's requirement that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U. S. Const., Amdt. 5. Since respondents failed to raise either of these issues in their briefs before the Court of Appeals and that court did not pass on these questions, we leave it to the Court of Appeals on remand to take up the propriety of raising these issues now and to address them if warranted.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.