US v. Taylor, CR-88-0140 EFL.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Citation: 693 F. Supp. 828
• Docket Number: No. CR-88-0140 EFL.,CR-88-0140 EFL.
• Parties: UNITED STATES of America, Plaintiff, v. Roosevelt TAYLOR, Jr., Defendant.
• Decision Date: 24 August 1988

693 F. Supp. 828

UNITED STATES of America, Plaintiff,
v.
Roosevelt TAYLOR, Jr., Defendant.

No. CR-88-0140 EFL.

United States District Court, N.D. California.

August 24, 1988.

Lauri Kloster Gray, U.S. Atty's Office, San Francisco, Cal., for plaintiff.

Stuart Hanlon, San Francisco, Cal., for defendant.

MEMORANDUM DECISION

LYNCH, District Judge.

INTRODUCTION

Defendant Roosevelt Taylor, Jr. is being

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prosecuted pursuant to 18 U.S.C. § 1623¹ for six counts of perjury for making false declarations during testimony before a grand jury. One of the requirements for conviction under section 1623² is that such declarations be "material" to the grand jury proceeding in which they are made. The United States has moved for a determination by the court that the false declarations alleged in the indictment are material as a matter of law. Defendant opposes the motion primarily on the grounds that the issue of the materiality of the declarations is a question for the trier of fact, in this case, the jury. Despite the great weight of authority supporting the government's position, the court concludes that the issue of materiality under section 1623 is one for the jury, and that the government's motion must therefore be denied.³

DISCUSSION

At first blush, it would seem to be beyond question that the issue whether an allegedly false declaration is material to the proceeding in which it is made is a question of law to be determined by the court, and not a question for the trier of fact, typically a jury. See, e.g., United States v. Bridges, 717 F.2d 1444, 1448 & n. 18 (D.C.Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 708 (1984); United States v. Goguen, 723 F.2d 1012, 1016 & n. 4 (1st Cir.1983); United States v. Weiss, 752 F.2d 777, 786 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985); United States v. Slawik, 548 F.2d 75, 79 & n. 8 (3d Cir.1977); United States v. Bailey, 769 F.2d 203, 203 (4th Cir.1985); United States v. Thompson, 637 F.2d 267, 268 (5th Cir.1981); United States v. Seltzer, 794 F.2d 1114, 1123 (6th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 979 (1987); United States v. Picketts, 655 F.2d 837, 840 (7th Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981); United States

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v. Ashby, 748 F.2d 467, 470 (8th Cir.1984); United States v. Martinez, 837 F.2d 900, 902 (9th Cir.1988); United States v. Girdner, 773 F.2d 257, 259 (10th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1379, 89 L.Ed.2d 605 (1986); United States v. Carter, 721 F.2d 1514, 1535 n. 29 (11th Cir.), cert. denied sub nom. Morris v. United States, 469 U.S. 819, 105 S.Ct. 89, 83 L.Ed.2d 36 (1984). In the words of the D.C. Circuit

The unanimous verdict of the federal courts has been that materiality is a question of law to be determined by the trial judge.

Bridges, 717 F.2d at 1448 (footnote omitted).

Nevertheless, like the child who insists that the emperor wears no clothes, defendant vigorously argues that materiality must be proven beyond a reasonable doubt to the jury just like any of the other elements of any serious crime. Defendant bases his argument on the line of authority exemplified by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which explicitly holds that the due process clause requires that every element of an offense must be proven beyond a reasonable doubt to the trier of fact.⁴ See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 83-91, 106 S.Ct. 2411, 2415-19, 91 L.Ed.2d 67 (1986); Cabana v. Bullock, 474 U.S. 376, 384-85, 106 S.Ct. 689, 696, 88 L.Ed.2d 704 (1986); Sandstrom v. Montana, 442 U.S. 510, 519-24, 99 S.Ct. 2450, 2456-59, 61 L.Ed.2d 39 (1979); Jackson v. Virginia, 443 U.S. 307, 313-16, 99 S.Ct. 2781, 2785-87, 61 L.Ed.2d 560 (1979); Patterson v. New York, 432 U.S. 197, 204-16, 97 S.Ct. 2319, 2324-30, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 696-704, 95 S.Ct. 1881, 1888-92, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. at 361-64, 90 S.Ct. at 1071-72; Newton v. Superior Court, 803 F.2d 1051, 1058 (9th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 2464, 95 L.Ed.2d 873 (1987); United States v. Gipe, 672 F.2d 777, 779 (9th Cir.1982). In the words of the Winship Court:

Lest there remain any doubt about the constitutional stature of the reasonabledoubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof to the "proper factfinder" beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

Winship, 397 U.S. at 364, 90 S.Ct. at 1073. More recently, the Court summarized this area of the law as follows:

A defendant charged with a serious crime has the right to have a jury determine his guilt or innocence, and a jury's verdict cannot stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof. Findings made by a judge cannot cure deficiencies in the jury's finding as to the guilt or innocence of a defendant resulting from the court's failure to instruct it to find an element of the crime.

Cabana, 474 U.S. at 384-85, 106 S.Ct. at 696 (approvingly citing Connecticut v. Johnson, 460 U.S. 73, 95 & n. 3, 103 S.Ct. 969, 981 & n. 3, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting); other citations omitted). Defendant asserts that the orthodoxy that materiality is for the court cannot stand scrutiny in the light of this line of authority, and that it makes plain that he is constitutionally entitled to have a jury decide the issue of materiality.

I

Sinclair and Materiality as a Matter of Law

In view of the obvious force of defendant's argument, it is appropriate to review the law standing for the proposition that materiality is a question of law. This result is founded on a decision of the Supreme Court well over half a century old, Sinclair v. United States, 279 U.S. 263, 49

693 F. Supp. 831

S.Ct. 268, 73 L.Ed. 692 (1929). In that case, the Court affirmed the conviction of a witness for refusing to testify before a Senate committee investigating the Teapot Dome scandal. In determining that a Senator's unanswered query was "pertinent to the question under inquiry" as required for conviction of contempt of Congress under 2 U.S.C. § 192⁵ hereinafter section 192, the Court took it for granted that, like the relevancy of evidence, materiality was a question of law inappropriate for determination by a jury. The Court therefore found that the analogous issue of "pertinency" was also a question of law.⁶ The Supreme Court has subsequently followed Sinclair without question on a number of occasions and with respect to a number of statutes. E.g., Kungys v. United States, ___ U.S. ___, 108 S.Ct. 1537, 1547, 99 L.Ed.2d 839 (1988) (denaturalization statute);⁷ Russell v. United States, 369 U.S. 749, 755-59, 82 S.Ct. 1038, 1041-44, 8 L.Ed. 2d 240 (1962) (section 192); Braden v. United States, 365 U.S. 431, 435-38 & n. 6, 81 S.Ct. 584, 587-89 & n. 6, 5 L.Ed.2d 653 (1961) (same)

As noted above, the lower federal courts have also followed Sinclair. Surprisingly however, no federal case appears to have analyzed and reconciled the Sinclair and Winship lines of authority, presumably because defendants have rarely raised the Winship argument.⁸ Instead, cases generally continue simply to cite Sinclair and its progeny without analysis.

Cases in the Ninth Circuit have for the most part done likewise. See, e.g., United States v. Gordon, 844 F.2d 1397, 1403-04 (9th Cir.1988); Martinez, 837 F.2d at 902; United States v. Prantil, 764 F.2d 548, 557 (9th Cir.1985); United States v. Dipp, 581 F.2d 1323, 1328 (9th Cir.1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979); United States v. Anfield, 539 F.2d 674, 678 (9th Cir.1976); United States v.

693 F. Supp. 832

Sisack, 527 F.2d 917, 920 & n. 2 (9th Cir. 1976); United States v. Percell, 526 F.2d 189, 190 (9th Cir.1975)

Several cases, however, have not followed the orthodox view of Sinclair. For example, in Luse v. United States, 49 F.2d 241 (9th Cir.1931), the Ninth Circuit set forth as guidance for retrial its view that the element of materiality was typically a jury question.⁹ The court presumably did not view Sinclair as controlling on the issue of materiality, for it did not cite or allude to the case, which was then about two years old. Rather than follow Sinclair's apparent view that materiality is a single concept that is invariably a question of law for the court, Luse found that materiality actually has several aspects and that they are often for the jury. The Ninth

693 F. Supp. 833

Circuit apparently took it as beyond doubt that materiality in the sense of relevance for the purposes of admissibility in any trial is a question for the court. Luse, 49 F.2d at 245. However, Luse found that the question of materiality for purposes of proof of perjury is a mixed question of law and fact, because while the conclusion that a statement is material is a legal one, it is dependent on the purely factual determination of what occurred at the proceeding in which the statement was made. Id. Therefore, Luse reasoned, absent a stipulation by defendant to the facts concerning the proceeding in which he allegedly had committed perjury, the issue of materiality is for the jury. Id.

Although Luse appears to be in direct conflict with the standard understanding of Sinclair, the Ninth Circuit has never expressly overruled it, even when faced with a challenge to Sinclair based on Luse. In Vitello v. United States, 425 F.2d 416 (9th Cir.), cert. denied, 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50 (1970), in the course of rejecting the defendant's argument that the trial court had erred by "taking from the jury the question of the scope of the grand jury's investigation," the Ninth Circuit found that:

The scope of the grand jury inquiry, under the provisions of the

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