U.S. v. David

Citation83 F.3d 638
Decision Date06 May 1996
Docket NumberNo. 94-5754,94-5754
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Karl V. DAVID, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (CR-94-39).

ARGUED: Lee W. Kilduff, Morchower, Luxton & Whaley, Richmond, Virginia, for Appellant. N. George Metcalf, Assistant United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Michael Morchower, Morchower, Luxton & Whaley, Richmond, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Kieran Grennan, Third Year Law Student Intern, Richmond, Virginia, for Appellee.

Before ERVIN, WILKINS, and LUTTIG, Circuit Judges.

OPINION

LUTTIG, Circuit Judge:

Appellant, Karl David, was convicted by a jury of making a false statement on a form submitted to the Bureau of Alcohol, Tobacco and Firearms, in violation of 18 U.S.C. § 1001. David now claims that under the Supreme Court's subsequent decision in United States v. Gaudin, --- U.S. ----, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), his conviction must be overturned because the district court failed to submit the question of materiality to the jury despite his Fifth and Sixth Amendment rights to have a jury determine every element of the crime with which he was charged. Since David never objected to the district court's jury instructions, we review his conviction for plain error under Federal Rule of Criminal Procedure 52(b). We agree that in light of Gaudin, which is to be applied retroactively to all cases on direct review, see Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), the failure to instruct this particular jury on the element of materiality constitutes plain error. Therefore, we vacate David's conviction and remand for a new trial.

I.

David had been a federally licensed firearms dealer for approximately six years before the incident at issue in this case. In March of 1994, the month before his federal firearms license was to expire, David obtained an application to renew his license. The application included a number of questions, one of which was the following:

1. Are you presently under indictment or information in any court for a crime punishable by imprisonment for a term exceeding 1 year?

(If yes, attach an explanatory statement showing the date of the indictment or information and the court in which it is pending. "INFORMATION" means a formal accusation of a crime made by a prosecuting attorney as distinguished from an indictment presented to a grand jury.).

David answered this question "NO." At the time, David was under indictment for embezzlement in Caroline County, Virginia. The indictment explained the possible punishments for embezzlement as follows:

PUNISHMENT: Imprisonment for not less than one nor more than twenty years, or in the discretion of the jury or the Court trying the case without a jury by confinement in jail for a period not exceeding twelve months and a fine of not more than $2,500.00; either or both.

As a result of David's answer, the government charged David with knowingly making a false statement to a department or agency of the United States in violation of 18 U.S.C. § 1001. 1 To establish a violation of section 1001, the prosecution must prove that: (1) the defendant made a false statement to a governmental agency; (2) the defendant acted knowingly or willfully; and (3) the false statement was material to a matter within the jurisdiction of an agency. 2 See, e.g., United States v. Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir.1993). Pursuant to longstanding Fourth Circuit precedent, the district court did not submit the question of materiality to the jury, but, rather, instructed that "[t]he court will decide ... element four, regarding materiality." See Appellant's Mot. to Supplement Arg. at 7.

The district court's instruction, though faithful to then-existing law, turned out to be in error when, in Gaudin, a unanimous Supreme Court held that the Fifth and Sixth Amendments require that the element of materiality in section 1001 must be submitted to the jury. 3 --- U.S. at ----, 115 S.Ct. at 2320 ("The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged."). On the authority of Gaudin, David now contends that he is entitled to a new trial in which the question of materiality would be submitted to the jury. Because he raised no objection to the court's instruction that it would decide materiality, we review the failure to submit the question of materiality to the jury for plain error under Federal Rule of Criminal Procedure 52(b).

II.

Appellate authority to review errors not brought to the attention of the district court and thus not otherwise cognizable on appeal 4 is found in Federal Rule of Criminal Procedure 52(b), which provides:

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

The Supreme Court recently clarified the scope and requirements of Rule 52(b) in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Noting that "the authority created by Rule 52(b) is circumscribed," the Court held that, before an appellate court can correct an error not raised at trial, Rule 52(b) requires: 1) "error"; 2) that is "plain"; and 3) that "affect[s] substantial rights." Id. at 730-32, 113 S.Ct. at 1776. Even then, "Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the Court of Appeals, and the court should not exercise that discretion unless the error ' "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." ' " Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936))). The Court also explained that Rule 52(b), which "defines a single category of forfeited-but-reversible error," is the sole source of appellate authority to correct a forfeited error, 5 unless some other provision authorizes its correction. Id. at 730-34, 113 S.Ct. at 1776-77.

A.

Turning to the first element in the "plain error" analysis, we have no hesitation concluding that the district court committed an error in this case. Although the district court's instruction that materiality would be decided by the court was proper at the time it was given, we now know that the element of materiality in section 1001 must be submitted to the jury. See Gaudin, --- U.S. at ----, 115 S.Ct. at 2320. Since a "new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review ..., with no exception for cases in which the new rule constitutes a 'clear break' with the past," Griffith, 479 U.S. at 328, 107 S.Ct. at 716, David is entitled to the benefit of the new rule for the purposes of determining whether the district court committed an error. Thus, the district court erred in failing to submit the question of materiality to the jury.

B.

The question of whether the error committed by the district court is "plain" is not as easily resolved. In Olano, the Supreme Court defined "plain" as "synonymous with 'clear' or, equivalently, 'obvious.' " 507 U.S. at 734, 113 S.Ct. at 1777. Although the Court defined the word "plain" perhaps as clearly as that word can be defined in the context of the plain error analysis, it was somewhat elliptical on the important question of when the error must be plain in order for an appellate court to take cognizance of the error, stating only that,

[t]he second limitation on appellate authority under Rule 52(b) is that the error be "plain." "Plain" is synonymous with "clear" or, equivalently, "obvious." See [United States v.] Young, [470 U.S. 1,] 17 n. 14 [105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985) ]; United States v. Frady, 456 U.S. 152, 163 [102 S.Ct. 1584, 1592, 71 L.Ed.2d 816] (1982). We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.

Id. (emphasis added); see also United States v. Marder, 48 F.3d 564, 573 (1st Cir.) (noting circuit split over when an error must be plain, in the course of declining to answer the "considerably more complicated" question of when an error is "plain"), cert. denied, --- U.S. ----, 115 S.Ct. 1441, 131 L.Ed.2d 320 (1995). Because this passage from Olano is so central to an understanding of the "plain" requirement of the plain error analysis, and its meaning has proven so elusive, we begin by addressing ourselves to this passage and to the deceptively complex issues it raises.

1.

We can conceive of at least four different circumstances envisaged by the Court in this passage: A) where an error is clear both at the time of trial and at the time of appeal; B) where an error is "unclear at the time of trial but becomes clear on appeal"; C) where an error is clear at the time of trial but unclear at the time of appeal; or D) where an error is unclear both at the time of the trial and at the time of appeal. It seems to us that the passage is best understood as authorizing appellate review of forfeited errors in Circumstance A, barring review of such errors in Circumstances C and D, and as reserving judgment on whether forfeited errors arising under Circumstance B are reviewable, but suggesting that they too might well not be reviewable.

Although the Court does not so state expressly, the clear implication from sentences three and four of the passage, as would be expected, is that a court of appeals...

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