United States v. Gaudin (94-514), 515 U.S. 506 (1995).
Concurrence
[ Rehnquist ]
Syllabus
Opinion
[ Scalia ]
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No. 94-514


UNITED STATES, PETITIONER v. MICHAEL E. GAUDIN

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 19, 1995]

Chief Justice Rehnquist , with whom Justice I join the Court's opinion. "A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970)." Herrera v. Collins, 506 U. S. ___, ___ (1993) (slip op., at 7). As a result, "[t]he prosecution bears the burden of proving all elements of the offense charged and must persuade the factfinder `beyond a reasonable doubt' of the facts necessary to establish each of those elements." Sullivan v. Louisiana, 508 U. S. ___, ___ (1993) (slip op., at 2-3) (citations omitted); see also Estelle v. McGuire, 502 U.S. 62, 69 (1991) ("[T]he prosecution must prove all the elements of a criminal offense beyond a reasonable doubt"). The Government has conceded that 18 U.S.C. § 1001 requires that the false statements made by respondent be "material" to the Government inquiry, and that "materiality" is an element of the offense that the Government must prove in order to sustain a conviction. Ante, at 3; Brief for United States 11. The Government also has not challenged the Court of Appeals' determination that the error it identified was structural and plain. See id., at 8, n. 5; see also 28 F. 3d 943, 951-952 (CA9 1994). In light of these concessions, I agree that "[t]he trial judge's refusal to allow the jury to pass on the `materiality' of Gaudin's false statements infringed" his "right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he [was] charged." Ante, at 17.

I write separately to point out that there are issues in this area of the law which, though similar to those decided in the Court's opinion, are not disposed of by the Court today. There is a certain syllogistic neatness about what we do decide: every element of an offense charged must be proven to the satisfaction of the jury beyond a reasonable doubt; "materiality" is an element of the offense charged under §1001; therefore, the jury, not the Court, must decide the issue of materiality. But the Government's concessions have made this case a much easier one than it might otherwise have been.

Whether "materiality" is indeed an element of every offense under 18 U.S.C. § 1001 is not at all obvious from its text. Section 1001 of Title 18 provides:

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

Currently, there is a conflict among the Courts of Appeals over whether materiality is an element of the offense created by the second clause of §1001. Compare, e.g., United States v. Corsino, 812 F. 2d 26, 30 (CA1 1987) (" `While materiality is not an explicit requirement of the second, false statements, clause of §1001, courts have inferred a judge made limitation of materiality in order to exclude trifles from its coverage' ") with United States v. Elkin, 731 F. 2d 1005, 1009 (CA2 1984) ("It is settled in this Circuit that materiality is not an element of the offense of making a false statement in violation of § 1001"). The Court does not resolve that conflict; rather, it merely assumes that materiality is, in fact, an element of the false statement clause of § 1001. Ante, at 5; cf. Sullivan, supra, at ___, n. 1 (slip op., at 3, n. 1) (assuming that reasonable doubt jury instruction was erroneous in light of the "question presented and the State's failure to raise this issue below").

As with many aspects of statutory construction, determination of what elements constitute a crime often is subject to dispute. See, e.g., National Organization for Women, Inc. v. Scheidler, 510 U. S. ___, ___ (slip op., at 12) (1994) (holding that "RICO contains no economic motive requirement"); United States v. Culbert, 435 U.S. 371, 380 (1978) (declining to limit the Hobbs Act's scope to an undefined category of conduct termed "racketeering"). "[I]n determining what facts must be proved beyond a reasonable doubt the [legislature's] definition of the elements of the offense is usually dispositive." McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986). Nothing in the Court's decision stands as a barrier to legislatures that wish to define--or that have defined--the elements of their criminal laws in such a way as to remove issues such as materiality from the jury's consideration. We have noted that " `[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.' " Staples v. United States, 511 U. S. ___, ___ (1994) (slip op., at 4) (quoting Liparota v. United States, 471 U.S. 419, 424 (1985)); see also McMillan, supra, at 85. Within broad constitutional bounds, legislatures have flexibility in defining the elements of a criminal offense. See Patterson v. New York, 432 U.S. 197, 210 (1977). Federal and State legislatures may reallocate burdens of proof by labeling elements as affirmative defenses, ibid., or they may convert elements into "sentencing factor[s]" for consideration by the sentencing court, McMillan, supra, at 85-86. The Court today does not resolve what role materiality plays under §1001.

The Court properly acknowledges that other mixed questions of law and fact remain the proper domain of the trial court. Ante, at 15. Preliminary questions in a trial regarding the admissibility of evidence, Fed. Rule Evid. 104(a), the competency of witnesses, ibid., the voluntariness of confessions, Crane v. Kentucky, 476 U.S. 683, 688-689 (1986), the legality of searches and seizures, Fed. Rule Crim. Proc. 12(b)(3), and the propriety of venue, see Fed. Rule Crim. Proc. 18, may be decided by the trial court.

Finally, the Government has not argued here that the error in this case was either harmless or not plain. Brief for United States 8, n. 5. As to the former, there is a "strong presumption" that a constitutional violation will be subject to harmless error analysis. See Rose v. Clark, 478 U.S. 570, 579 (1986). Accordingly, "the Court has applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless." Arizona v. Fulminante, 499 U.S. 279, 306 (1991); cf. id., at 309-310 (listing examples of structural errors). In particular, the Court has subjected jury instructions plagued by constitutional error to harmless error analysis. See, e.g., Yates v. Evatt, 500 U.S. 391, 402 (1991) (taint of an unconstitutional burden shifting jury instruction subject to harmless error analysis); Carella v. California, 491 U.S. 263, 266 (1989) (per curiam) (jury instruction containing an erroneous mandatory presumption subject to harmless error analysis); Pope v. Illinois, 481 U.S. 497, 502-504 (1987) (jury instruction misstating an element of an offense subject to harmless error analysis); Rose, supra, at 581-582 (jury instruction containing an erroneous rebuttable presumption subject to harmless error analysis); but see Sullivan v. Louisiana, 508 U. S. ___, ___ (1993) (slip op., at 5-6) (erroneous burden of proof instruction not subject to harmless error analysis). The Court today has no occasion to review the Court of Appeals' conclusion that the constitutional error here "cannot be harmless." 28 F. 3d, at 951.

As to the latter, in United States v. Olano, 507 U. S. ___, ___ (1993) (slip op., at 6), the Court noted the limitations on "plain error" review by the Courts of Appeals under Rule 52(b). "The first limitation on appellate authority under Rule 52(b) is that there indeed be an `error.' " Id., at ___ (slip op., at 7). Second, "the error [must] be `plain.' " Id., at ___ (slip op., at 8). Thus, "[a]t a minimum, [a] Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law." Ibid. Third, the plain error must " `affect[] substantial rights,' " ibid., i.e., "in most cases it means that the error must have been prejudicial," ibid. Finally, if these three prerequisites are met, the decision to correct forfeited error remains within the sound discretion of the Court of Appeals. A Court of Appeals, however, should not exercise that discretion unless the error " ` "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." ' " Id., at ___ (slip op., at 6).

In affirming the Court of Appeals, the Court concludes that "it is fair to say that we cannot hold for respondent today while still adhering to the reasoning and the holding of [Sinclair v. United States, 279 U.S. 263 (1929)]." Ante, at 14. Before today, every Court of Appeals that has considered the issue, except for the Ninth Circuit, has held that the question of materiality is one of law. See 28 F. 3d, at 955 (Kozinski, J., dissenting) (collecting cases). Thus, it is certainly subject to dispute whether the error in this case was "clear under current law." Olano, supra, at ___ (slip op., at 8). The Court, however, does not review the Court of Appeals' determination that the failure to submit the issue of materiality to the jury constituted "plain error." 28 F. 3d, at 952.