No. 94-1924

In The Supreme Court of The United States
OCTOBER TERM, 1995

JOHN E. HAYES, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General

JO ANN HARRIS
Assistant Attorney General

THOMAS E. BOOTH
Attorney

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the element of materiality in a prose-
cution for perjury under 18 U.S.C. 1623 must be
submitted to the jury.

(I)

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OCTOBER TERM. 1995

No. 94-1926

GOPAL KAPOOR, PETITIONER

    v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. 23-28)
is unpublished, but the judgment is noted at 54 F.3d
765 (Table).

        JURISDICTION

The judgment of the court of appeals was entered on
April 6, 1995. The petition for a writ, of certiorari was
filed on May 24, 1995. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).

        STATEMENT

Following a jury trial in the United States District
Court for the Southern District of New York, peti-
tioner was convicted on one count of perjury, in

(1)

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violation of 18 U.S.C. 1623. He was sentenced to five
months' imprisonment, to be followed by two years'
supervised release. The court of appeals affirmed.
Pet. App. 23-28.
1. On November 7,1991, petitioner was arrested by
Secret Service agents for allegedly committing credit
card fraud while employed by Al?. Tours & Travel
Ltd. During questioning while in custody, petitioner
signed a Secret Service form, labeled an "Affidavit,"
that contained preprinted language acknowledging
that petitioner had been informed of certain rights,
including his right to consult an attorney. The form
also contained a handwritten section, completed by
one of the agents, that purported to be an admission
by petitioner that he had purchased airline tickets
using "unauthorized approval codes" for his personal
credit cards. Pet. App. 24.
The government did not prosecute petitioner for
credit card fraud. He was named as a defendant,
however, in a related civil action filed by Air-India in
federal district court. At a hearing held on October
21, 1993, in confection with a discovery motion in that
case, petitioner testified about his possession, con-
trol, and knowledge of certain requested documents.
In answer to questions asked by the district judge,
petitioner denied, contrary to his signed statement
that he had told Secret Service agents he had used
unauthorized approval codes. He also testified that he
had never been advised of his right to consult with an
attorney before making his statement to the Secret
Service. Pet. App. 24-25 Gov't C.A. Br. 6-8.
Petitioner was later indicted on two counts of
perjury. One count was based on his denial of having
admitted to using unauthorized access codes. The
other was based on his denial of having been informed

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of his right to consult with an attorney. At trial,
before submitting the case to the jury, the district
court determined, as matter of law, that each of the
allegedly false statements was material to the
purpose of the October 21 hearing. Pet. App. 25; Gov't
C.A. Br. 12. The jury acquitted petitioner on Count
One of the indictment and found him guilty on Count
Two. Pet. App. 25.
2. In the court of appeals, petitioner argued, inter
alia, that the district court erred in deciding the
materiality issue as a matter of law instead of
submitting the question to the jury. The court of
appeals rejected that argument, holding in accord
with "well-established precedent" that the issue of
materiality in a perjury prosecution is properly
determined by the court as a matter of law. Pet. App.
26-27.

        ARGUMENT

Petitioner renews his contention (Pet. 12-21) that
the question of materiality in a perjury prosecution
under 18 U.S.C. 1623 must be submitted to the jury.
In United States v. Gaudin, No. 94-514 (June 19,
1995), which was pending when the petition in this
case was filed, this Court held that the element of
materiality in a prosecution for false statements
under 18 U.S.C. 1001 must be submitted to the jury.
In light of the Court's reasoning that it is a violation
of the defendant's Fifth and Sixth Amendment rights
for an essential element of an offense to be withheld
from the jury, that holding should apply equally to the
element of materiality in a perjury prosecution under
18 U.S.C. 1623.
The government argued alternatively in the court
of appeals that if it was error for the court to decide

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the issue, the error was harmless. Gov't C.A. Br. 26
n.*. Because the court of appeals found no error in
the district court's failure to submit the issue to the
jury, it did not reach the question of harmless error.
We therefore suggest that the Court remand this
case to the court of appeals for reconsideration in
light of the decision in Gaudin and for consideration
of the question whether any error was harmless.
  
     CONCLUSION

The petition for a writ of certiorari should be
granted, the judgment vacated, and the case remanded
for reconsideration in light of this Court's decision in
United States v. Gaudin, No. 94-514 (June 19, 1995).
Respectfully submitted.

          DREW S. DAYS, 111
          Solicitor General
  
          JO ANN HARRIS
          Assistant Attorney General

          KATHLEEN A. FELTON
           Attorney

          JULY 1995