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.
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.
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. ___, ...