United States District Court, Central District of Illinois, Springfield Division
August 30, 1995
UNITED STATES OF AMERICA, PLAINTIFF,
J.W. PEARSON, A/K/A DAVID PORTER, DEBRA D. POOL, MICHAEL J. BROOKS, AND GREGORY P. SCOTT, DEFENDANTS.
The opinion of the court was delivered by: Richard Mills, District Judge:
Gregory P. Scott moves for a new trial.
As to his perjury conviction, motion allowed.
In June of 1995, Scott was convicted of conspiring to
distribute cocaine, 21 U.S.C. § 841, 846, and perjury,
18 U.S.C. § 1623(a). This opinion is concerned only with his
perjury conviction; the arguments raised by Scott regarding his
conviction for conspiring to distribute cocaine have been
addressed in a separate order.
To sustain a perjury conviction under § 1623(a), the
Government is required to prove, among other things, that the
alleged perjured statements were "material." Prior to his
indictment in this matter, Scott was asked by co-conspirator
J.W. Pearson to testify at his detention hearing before U.S.
Magistrate Judge Charles H. Evans. The issue at Pearson's
detention hearing was whether Pearson, if released on bond
pending his trial, was a risk of flight or a danger to the
community. Scott was essentially called to testify as to
Pearson's "good" character.
Scott was asked one question regarding his knowledge of
Pearson's cocaine trafficking and two questions pertaining to
his knowledge of the events surrounding another
co-conspirator's arrest. In our pre-trial order of June 6,
1995, we concluded that Scott's responses to these questions
were material, i.e., they had "a tendency to influence, or
[were] capable of influencing the decision of the decision
making body to which [they were] addressed." Kungys v. United
States, 485 U.S. 759, 770, 108 S.Ct. 1537, 1546, 99 L.Ed.2d 839
As a result of our pre-trial ruling, the jury was instructed
that: the statements at issue were material as a matter of law;
thus, to find Scott guilty of perjury they would have to
conclude that he testified falsely under oath and he knew the
testimony was false. The jury, of course, found Scott guilty of
On June 19, 1995, five days after the jury rendered its
verdict in this matter, the Supreme Court held that
"materiality" was a question for the jury to decide, not a
question of law for the court to decide. United States v.
Gaudin, ___ U.S. ___, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).
Consequently, since the Court, not the jury, determined that
the alleged perjured statements were material, Scott argues
that he is entitled to a new trial.
The Court agrees.
At the time of trial, although the law in the Seventh Circuit
was settled, i.e., materiality was a question of law for the
court to decide, not the jury,*fn1 United States v. Watson,
623 F.2d 1198, 1201 (7th Cir. 1980) ("[I]t is well settled that
the determination of materiality is a question of law for the
court."); United States v. Brantley, 786 F.2d 1322, 1327 (7th
Cir. 1986) ("[W]e persist in holding that materiality is a
question of law to be decided by the judge. . . ."), the Gaudin
decision is to be applied retroactively. Griffith v. Kentucky,
479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987)
("We therefore hold that a new 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. . . ."); Harper v. Virginia Dep't of Taxation, ___
U.S. ___, ___, 113 S.Ct. 2510, 2516, 125 L.Ed.2d 74 (1993). The
Government concedes that Gaudin is to be applied retroactively
to the instant case. However, they nevertheless insist that
Scott is still not entitled to a new trial.
Specifically, the Government, citing Chief Justice
Rehnquist's concurring opinion (joined by Justice O'Connor and
Justice Breyer) in Gaudin, argues that the Court should examine
this issue under a plain error
analysis. See Gaudin, at ___ - ___, 115 S.Ct. at 2321-22
(Rehnquist, C.J., concurring). After analyzing the issue in
this fashion, the Government claims that Scott is not entitled
to a new trial.
We disagree with the Government's position. In short, the
plain error doctrine is not applicable in the instant case.
Why? Because there was no error at trial. As all parties have
conceded, at the time of the trial, the law in the Seventh
Circuit was "well settled;" materiality was a question of law
for the court to decide. Watson, 623 F.2d at 1201. As noted by
the Supreme Court, a court cannot review for plain error unless
there is first an error. Gaudin, at ___, 115 S.Ct. at 2322
(citing, United States v. Olano, ___ U.S. ___, 113 S.Ct. 1770,
123 L.Ed.2d 508 (1993)). Thus, since there was no error at
trial, the plain error doctrine is obviously not applicable.
Indeed, the issue before the Court is much simpler. As a
result of the retroactive application of Gaudin, Scott is
entitled to a new trial. It is that simple.
As noted above, in arguing that the plain error doctrine
precludes the granting of a new trial, the Government relies on
Chief Justice Rehnquist's concurring opinion in
Gaudin. The Government, however, apparently overlooks the fact
that in Gaudin the district court's ruling that materiality was
a question of law for the court was contrary to the law in the
Ninth Circuit. United States v. Gaudin, 28 F.3d 943, 952 (9th
Cir. 1994) ("There is no doubt in the present case that the
error was `plain.' It violated clear circuit precedent that had
been in existence for 15 years.") (emphasis ours). Accordingly,
since the defendant failed to object in Gaudin and the
district court's ruling violated established Ninth Circuit
precedent, plain error analysis was clearly applicable. Here,
in contrast, our ruling that materiality was a question of law
for the court to decide was consistent with the law in the
Seventh Circuit. Thus, there was no error at trial, therefore,
the plain error doctrine does not apply.
Perhaps we can make this issue even more clear. A
prerequisite to the application of the plain error doctrine is
a failure to object at trial. United States v. Lakich,
23 F.3d 1203, 1207 (7th Cir. 1994). Here, the law was clear in the
Seventh Circuit, i.e., materiality was a question of law for
the court. So how can Scott be faulted for not objecting to the
materiality issue at trial? What could he have possibly
objected to? Since the law was clear in this circuit prior to
Gaudin, Scott's sole argument in support of such an objection
would have been to ask the district court to overrule the "well
settled" law in the Seventh Circuit. Obviously, an argument of
this nature would have been a waste of everyone's time.
We would like to address one additional aspect of the
Government's argument. In determining whether an error is
"plain," the court must consider whether the error affected
substantial rights, i.e., whether the error was prejudicial.
Lakich, 23 F.3d at 1211. The Government claims that failing to
submit the materiality issue to the jury did not prejudice
Scott because that issue was "clear-cut" and there is no reason
to believe that the jury would have reached a different
Such reasoning, however, is disturbing. Indeed, the
Government apparently ignores the fact that the United States
Constitution grants the accused the right to have a jury render
the requisite finding of guilt. How "clear-cut" the materiality
issue was is irrelevant! As stressed by the Supreme Court in
Sullivan v. Louisiana, ___ U.S. ___, 113 S.Ct. 2078, 124
L.Ed.2d 182 (1993):
The Sixth Amendment provides that in all criminal
prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury. .
. . In Duncan v. Louisiana [391 U.S. 145, 149, 88
S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968)] (citation
omitted*fn*), we found this right to a trial by
jury in serious criminal cases to be fundamental to
the American scheme of justice. . . . The right
includes, of course, as its most important element,
the right to have the jury, rather than the judge,
the requisite finding of guilty. (citations
omitted). Thus, although a judge may direct a
verdict for the defendant if the evidence is
legally insufficient to establish guilt, he may
not direct a verdict for the State, no matter how
overwhelming the evidence. (citations omitted).
What the factfinder must determine to return a
verdict of guilty is prescribed by the Due Process
Clause. The prosecution bears the burden of proving
all elements of the offense charged, (citations
omitted), and must persuade the factfinder beyond a
reasonable doubt of the facts necessary to
establish each of those elements.
Sullivan, ___ U.S. at ___, 113 S.Ct. at 2080 (emphasis ours).
As a result of Gaudin, Scott was deprived of his Sixth
Amendment right to have the jury determine his guilt as to the
materiality element of the perjury charge. The Government asks
the Court to overlook this fact because the evidence was
"clear-cut" and therefore no rational jury could conclude
otherwise. This, we could not do under any circumstance.
Indeed, "[t]he Sixth Amendment requires more than 
speculation about a hypothetical jury's action, . . . it
requires an actual jury finding of guilty." Sullivan, ___ U.S.
at ___, 113 S.Ct. at 2082 (emphasis ours).
The Government is essentially asking the Court to direct a
verdict in their favor as to the materiality element of the
perjury charge. This would be a result indisputably forbidden
by the Constitution. Sullivan, ___ U.S. at ___, 113 S.Ct. at
2082; Cole v. Young, 817 F.2d 412, 425 (7th Cir. 1987) ("Worse
yet, the instructions had the effect of directing a verdict for
the prosecution on an element of the offense, a result the
Constitution absolutely condemns."); United States v. Kerley,
838 F.2d 932, 939 (7th Cir. 1988) ("We are worlds away from the
paradigmatic case of plain error per se: the case where the
judge directs a verdict of guilty."); Harmon v. Marshall,
57 F.3d 763, 765 (9th Cir. 1995) (The Court stated that the
evidence against the defendant was "overwhelming,"
nevertheless, the Court ruled that it "cannot judge the
defendant guilty; that role is reserved for the jury.").
In sum, this case involves a fundamental structural error
where the jury was not permitted to render a verdict as to the
existence of an element of the crime charged. Materiality is an
element of the perjury charge and, as a result of the
retroactive application of Gaudin, this element is for the jury
— not the Court — to decide.
Scott is entitled to a new trial. It's that simple.
Ergo, Scott's motion for a new trial as to his perjury
conviction is ALLOWED.