U.S. v. Keys

• Decision Date: 11 September 1996
• Docket Number: No. 93-50281,93-50281
• Citation: U.S. v. Keys, 95 F.3d 874 (9th Cir. 1996)
• Parties: , 96 Cal. Daily Op. Serv. 6789, 96 Daily Journal D.A.R. 11,072 UNITED STATES of America, Plaintiff-Appellee, v. Michael Curtis KEYS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 874

95 F.3d 874

65 USLW 2224, 96 Cal. Daily Op. Serv. 6789,

96 Daily Journal D.A.R. 11,072

UNITED STATES of America, Plaintiff-Appellee, v. Michael Curtis KEYS, Defendant-Appellant.

No. 93-50281.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 23, 1996.

Decided Sept. 11, 1996.

Errol H. Stambler, Los Angeles, California, for defendant-appellant.

John P. Elwood, United States Department of Justice, Washington, D.C.; Miriam A. Krinsky, Stefan D. Stein, Assistant United States Attorneys, Los Angeles, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, David V. Kenyon, District Judge, Presiding; No. CR-91-00734-DVK.

Before: HUG, Chief Judge, BROWNING, FLETCHER, PREGERSON, JOHN T. NOONAN, Jr., THOMPSON, LEAVY, TROTT, T.G. NELSON, KLEINFELD, and TASHIMA, Circuit Judges.

TROTT, Circuit Judge:

Keys was charged with the crime of having made as a witness a false declaration in federal court in violation of 18 U.S.C. § 1623(a), also known as perjury. The statutory "materiality" element of this offense, however, was not submitted for decision to the jury, but, with the assent of both parties, to the trial judge. This practice reflected the established law of this circuit at the time of the trial. After the judgment of conviction, however, the law changed. The law now mandates that the materiality element of such crimes be decided not by the trial judge, but by the trial jury.

On appeal, Keys asks for the retroactive benefit of this change in the law, and he asks us to review his conviction for error pursuant to Fed.R.Crim.P. 52(a) as though he had objected to the handling of the materiality element. The government takes exception to this request and exhorts us instead to review for "plain error" under Fed.R.Crim.P. 52(b) as defined by the more stringent discretionary standards called for by United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In this regard, Keys and the government present us with significant questions regarding the limits of our authority as an appellate court to review a criminal judgment of conviction. We granted rehearing en banc in United States v. Keys, 67 F.3d 801 (9th Cir.1995), to decide these issues. We reverse and remand for a new trial. ¹

I Facts

Keys was serving time in federal prison for armed bank robbery. A former DEA agent named Darnell Garcia was on trial for conspiracy and other crimes. Another prisoner testified for the prosecution against Garcia pursuant to a plea bargain. Garcia called Keys as a witness to impeach the other prisoner. Keys testified that while he and the prosecution witness had shared a cell, the witness told him he was willing to lie for the government against Garcia in exchange for leniency for himself.

Keys had previously sent a letter to Garcia, who was being held in the same facility. Keys hid the letter among some magazines he asked a guard to deliver to Garcia. A letter smuggled past prison officials to another prisoner is called a "kite." The intercepted kite lends itself to the inference that Keys conspired with Garcia to lie for him at trial. The text of the letter reads:

Hey G.,

I've got everything covered on my end and I'm ready whenever the time is right. I hope that I can really make a difference and you come out on top. Let me know how long you anticipate your thing to last, so I can figure out how long I'll be here. I'm trying to stay as long as I possibly can and try to get a lot done while I'm here. I heard that R.R. left Fri. and he's in Okla. right now. I'm also trying to get a few things from the commissary but they only let us order two cosmetics items a week. If you can hook it up right away I need you to have somebody send this girl some money upstairs, so I can have her get me everything I need from the commissary. It don't have to be nothing but twenty or fifty dollars.

That guy,

P.S. Here's her name and number: Jeanna Carson--Reg. No. 92373-012.

The guard found and photocopied this letter, and unknown to Keys, he provided a copy of it to his supervisor. On cross-examination, the prosecutor asked Keys about the kite, and he denied sending it. His denials became the subject of the false declaration charge of which he stands convicted.

II Instructional Error

Counsel for both sides proposed, and the court gave from our Ninth Circuit Manual of Model Instructions, an instruction correct under the law as it then stood:

COURT'S INSTRUCTION NO. 16

The defendant is charged in Count One of the indictment with having made a false declaration in violation of Section 1623 of title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant testified under oath before a court of the United States;

Second, the testimony was false; and

Third, the defendant knew that the testimony was false.

The instruction, No. 8.29C, did not submit the issue of the materiality of the false testimony to the jury as one of the elements which the government had to prove beyond a reasonable doubt. Yet the statute criminalizes only such false testimony as is material. The statute uses the language, "Whoever under oath ... makes any false material declaration...." 18 U.S.C. § 1623(a).

This model instruction was based on established Ninth Circuit law. We had held in United States v. Clark, 918 F.2d 843, 845 (9th Cir.1990), that "materiality is an issue of law for the court to decide." In Clark, we followed the rule set out by the Supreme Court in Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929). In accord with this understanding, the trial court found that Keys's alleged false declaration was material. No mention of this finding was made to the jury.

III Analysis

A. Application of New Rule of Law

In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Supreme Court held that "a new [constitutional] rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Id. at 328, 107 S.Ct. at 716 (emphasis added). Embracing Justice Harlan's view, the Court said that failure to do so "would violate[ ] basic norms of constitutional adjudication." Id. at 322, 107 S.Ct. at 713 (citing United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). In the instant case, such a new rule was announced in this circuit in 1994 after the defendant's trial in 1992 and before his judgment of conviction became final. The "new rule" is that the materiality element of an allegedly actionable statement must be submitted for a finding in a jury trial to the jury, not to the court.

We announced this holding in United States v. Gaudin, 28 F.3d 943 (9th Cir.1994) (en banc), a case in which the defendant had been charged with making material false statements in violation of 18 U.S.C. § 1001. We held it was error for the district court to have instructed the jury that the materiality element of the charge was established as a matter of law. The Supreme Court unanimously affirmed our landmark holding in United States v. Gaudin, --- U.S. ----, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The question presented as described by Justice Scalia was "whether it was constitutional for the trial judge to refuse to submit the question of 'materiality' to the jury"; and the answer to this question was "no." Gaudin, --- U.S. at ----, 115 S.Ct. at 2312 (emphasis added).

As our colleague Judge Kleinfeld observed in the earlier three-judge panel opinion in this case, Justice Scalia expressed the logic of the Gaudin Court in a syllogism The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality.

Keys, 67 F.3d at 808 (citing Gaudin, --- U.S. at ----, 115 S.Ct. at 2314). We agree with Judge Kleinfeld's analysis that "[t]his syllogism applies with equal force to the perjury statute at issue in this case, 18 U.S.C. § 1623," id., because the text of the statute renders criminal only false declarations that are "material," and because materiality contains a "factual component." See Gaudin, 28 F.3d at 949; Gaudin, --- U.S. at ---- - ----, 115 S.Ct. at 2318-19 (The proposition that the element of materiality in a perjury prosecution is to be decided by a judge is "contrary to the uniform general understanding."). Accordingly, we overrule our holding in Clark that in a perjury prosecution, materiality is a question of law for the court to determine; and we disapprove old Model Instruction No. 8.29C. Thus, under Griffith, Keys is entitled to the benefit of this new constitutional rule because it was announced after his trial and before his case had become final.

B. Error for Which We Review

It would seem axiomatic, therefore, that we should proceed at this point using the Rule 52(a) standard of review to decide whether the application of the Gaudin principle to this case requires us to reverse Keys's conviction. The government suggests, however, that because he acquiesced in the use of the standard materiality instruction at his trial, the review to which he is now entitled is not under Rule 52(a), but for "plain error" under Rule 52(b) as currently defined under the stringent Olano standards. United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We respectfully disagree. ²

Since 1970, we have advised criminal defense counsel in this circuit that when faced with a "solid wall of circuit authority" endorsing a jury instruction, no objection to that instruction...