Elements of PerjuryMateriality
The false statement must be material to the proceedings. A false
statement is material if it has "a natural tendency to influence, or is
of influencing, the decision of the decision-making body to which it was
addressed." Kungys v. United States, 485 U.S. 759, 770
(1988)(denaturalization proceeding). The testimony need not have actually
influenced, misled or impeded the proceeding. For example, potential
interference with the grand jury's line of inquiry suffices to establish
materiality, because of the grand jury's broad investigative function.
States v. Williams, 993 F.2d 451, 455 (5th Cir. 1993); United States
Gribben, 984 F.2d 47, 52 (2d Cir. 1993). The government need not prove
legitimacy of the grand jury's investigation which led to the testimony,
pertinence of the particular testimony to the grand jury's investigation.
United States v. Regan, 103 F.3d 1072 (2d Cir. 1997). A similarly
construction of materiality is appropriate in the context of false
made in connection with civil depositions. United States v. Kross,
F.3d 751, 754 (2d Cir.), cert. denied, 115 S.Ct. 99 (1994); United
States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991), cert.
U.S. 821 (1993). But see United States v. Adams, 870 F.2d
1146-48 (6th Cir. 1989)(false statement must tend to affect the outcome of
underlying civil suit for which the deposition was taken). The statement
material to any proper matter of inquiry, including collateral matters that
influence the outcome of decisions before the tribunal, such as determining
credibility issues. United States v. Kross, 14 F.3d at 755.
is not negated merely because the tribunal did not believe the testimony or
sought cumulative information. United States v. Reilly, 33 F.3d
1419 n.20 (3d Cir. 1994). Furthermore, testimony may be material even if it
relates to events as to which the statute of limitations has run, since the
jury may have legitimate reasons to inquire about such events aside from an
expectation of returning an indictment charging those events as crimes.
United States v. Chen, 933 F.2d 793, 797 (9th Cir. 1991); United
v. Nazzaro, 889 F.2d 1158, 1165-66 (1st Cir. 1989).|
In United States v. Gaudin, 115 S.Ct. 2310, 2320 (1995), a
unanimous United States Supreme Court held that in a prosecution under 18
§ 1001 the jury must determine "beyond a reasonable doubt [the
guilt of every element of the crime with which he is charged." Previously,
courts had interpreted dicta in Sinclair v. United States, 279 U.S.
299 (1929), to classify materiality as a question of law decided by the
Following Gaudin, the better practice is to allow the jury
decide the issue. Appellate courts that have addressed materiality in
cases recently have extended Gaudin to require jury determinations of
materiality. United States v. Waldemar, 98 F.3d 306, 313 (7th Cir.
United States v. Keys, 95 F.3d 874, 880-81 (9th Cir. 1996)(en banc),
petition for cert. filed, No. 96-1089 (Jan. 9, 1997);
United States v. Littleton, 76 F.3d 614, 617 (4th Cir. 1996). One
however, has upheld a post-Gaudin perjury conviction despite a
submit the materiality question to the jury, reasoning that it was not plain
error. United States v. Kramer, 73 F.3d 1067, 1075 (11th Cir.),
denied, 117 S.Ct. 516 (1996).
NOTE: The United States Supreme Court granted certiorari in
v. United States, 65 U.S.L.W. 3364 (No. 96-203)(ruling below United
v. Frost, 77 F.3d 1319 (11th Cir. 1996)), on the question of whether the
United States Court of Appeals for the Eleventh Circuit correctly affirmed,
the plain error rule, Fed.R.Crim.P. 52(b), petitioner's perjury conviction
which the trial court, without objection, resolved the materiality issue
reasonable jury could have found petitioner's false testimony to have been
immaterial. The United States filed a petition for certiorari in
supra, which reversed a perjury conviction for failure to instruct
materiality and held the issue preserved despite the defendant's failure to
for such an instruction because such would have been futile given case law
PRACTICE TIP: All jury instructions predating Gaudin should be
carefully reviewed before reuse to ensure that appropriate materiality
reflecting Gaudin is included.
[cited in USAM 9-69.200]