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1748

Elements of Perjury—Materiality

The false statement must be material to the proceedings. A false statement is material if it has "a natural tendency to influence, or is capable 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. United States v. Williams, 993 F.2d 451, 455 (5th Cir. 1993); United States v. Gribben, 984 F.2d 47, 52 (2d Cir. 1993). The government need not prove the legitimacy of the grand jury's investigation which led to the testimony, only the pertinence of the particular testimony to the grand jury's investigation. United States v. Regan, 103 F.3d 1072 (2d Cir. 1997). A similarly broad construction of materiality is appropriate in the context of false declarations made in connection with civil depositions. United States v. Kross, 14 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. denied, 510 U.S. 821 (1993). But see United States v. Adams, 870 F.2d 1140, 1146-48 (6th Cir. 1989)(false statement must tend to affect the outcome of the underlying civil suit for which the deposition was taken). The statement may be material to any proper matter of inquiry, including collateral matters that might influence the outcome of decisions before the tribunal, such as determining credibility issues. United States v. Kross, 14 F.3d at 755. Materiality is not negated merely because the tribunal did not believe the testimony or sought cumulative information. United States v. Reilly, 33 F.3d 1396, 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 grand 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 States 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 U.S.C. § 1001 the jury must determine "beyond a reasonable doubt [the defendant's] 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. 263, 299 (1929), to classify materiality as a question of law decided by the court.

Following Gaudin, the better practice is to allow the jury to decide the issue. Appellate courts that have addressed materiality in perjury cases recently have extended Gaudin to require jury determinations of materiality. United States v. Waldemar, 98 F.3d 306, 313 (7th Cir. 1996); 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 court, however, has upheld a post-Gaudin perjury conviction despite a failure to 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.), cert. denied, 117 S.Ct. 516 (1996).

NOTE: The United States Supreme Court granted certiorari in Johnson v. United States, 65 U.S.L.W. 3364 (No. 96-203)(ruling below United States 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, under the plain error rule, Fed.R.Crim.P. 52(b), petitioner's perjury conviction in which the trial court, without objection, resolved the materiality issue and no reasonable jury could have found petitioner's false testimony to have been immaterial. The United States filed a petition for certiorari in Keys, supra, which reversed a perjury conviction for failure to instruct on materiality and held the issue preserved despite the defendant's failure to ask for such an instruction because such would have been futile given case law at the time.

PRACTICE TIP: All jury instructions predating Gaudin should be carefully reviewed before reuse to ensure that appropriate materiality language reflecting Gaudin is included.

[cited in USAM 9-69.200]