Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 95 C 630 Michael M. Mihm, Chief Judge.
Before BAUER, FLAUM and KANNE, Circuit Judges.
On December 9, 1993, at the end of a three-day trial, a jury found Mark Waldemer guilty of making a "false material declaration" to the grand jury in violation of 18 U.S.C. sec. 1623. One of the elements of this offense that the government was required to prove beyond a reasonable doubt was that Waldemer's declaration was material to the grand jury's investigation. Because at the time of trial it was well settled in this circuit that the existence of materiality was a question of law for the court to decide, see, e.g., United States v. Anderson, 798 F.2d 919, 926 (7th Cir. 1986), the issue of materiality was not submitted to the jury for its determination. After the verdict, Waldemer appealed to this court, and we affirmed. United States v. Waldemer, 50 F.3d 1379 (7th Cir. 1995). In the opinion announcing our decision, we found it necessary to address the question of the materiality of Waldemer's statements to the grand jury. We determined as a matter of law that Waldemer's false statements were material. Id. at 1382-83. Waldemer filed a petition for rehearing and suggestion for rehearing en banc, which we denied. He then filed a petition for a writ of certiorari, which the Supreme Court denied on June 19, 1995.
On the same day the Supreme Court denied Waldemer's petition for certiorari, however, it issued United States v. Gaudin, __ U.S. __, __, 115 S. Ct. 2310, 2320 (1995), holding that the Sixth Amendment guarantees a criminal defendant's right to have a jury decide each and every element of the offense with which he is charged, specifically including the issue of materiality. Id. Waldemer then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. sec. 2255, arguing that (among other reasons) Gaudin required a reversal of his conviction. However, the district court determined that "a rational jury could not have found that Waldemer's statements to the grand jury were not material," and therefore held "that the error was harmless beyond a reasonable doubt" and denied Waldemer's habeas petition. Waldemer now appeals to this court for review of the district court's ruling.
As a result of Gaudin, the district court's decision not to submit the question of materiality to the jury was rendered reversible error. See United States v. Ross, 77 F.3d 1525, 1539 (7th Cir. 1996). Waldemer did not raise this issue either at trial or on direct appeal. Where a defendant fails to raise a claim at trial or on direct appeal, he may not proffer it as a ground for collateral attack unless he demonstrates (1) good cause for failing to raise the error and (2) that the alleged error was actually prejudicial. United States v. Frady, 456 U.S. 152, 167-68, 102 S. Ct. 1584, 1594 (1982); Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994).
With respect to the first requirement, there was good cause for not raising as error, either at trial or on direct appeal, the district court's decision not to submit the question of materiality to the jury because Gaudin was not decided until the day Waldemer's petition for writ of certiorari was denied. Prior to that date, the settled law of nearly every circuit dictated that materiality was a question for the district court, not the jury, to decide. See Ross, 77 F.3d at 1538 & n.2 (citing United States v. Gaudin, 28 F.3d 943, 955 (9th Cir. 1994) (Kozinski, J., dissenting) (collecting cases)).
The government offers Engle v. Isaac, 456 U.S. 107, 130, 102 S. Ct. 1558, 1573 (1982), for the proposition that the futility of asserting a federal constitutional claim does not amount to cause for failing to raise an objection at trial. Engle, however, concerned a defendant's failure to raise a federal constitutional objection in state court due to settled state precedent. Id. The Court explained: "If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim." Id. This principle--which preserves a state court's right to rethink a decision that may conflict with federal constitutional law--is inapposite in cases, like this one, where the federal defendant faces seemingly intractable federal precedent that his constitutional objection would be futile. To hold otherwise would invite countless frivolous objections at federal trials by defendants fearful of being denied the opportunity for future collateral attack should the Supreme Court later create a new constitutional rule. Thus, Waldemer has demonstrated the requisite cause.
As for prejudice, the district court found that not submitting the question of materiality to the jury was harmless because no rational jury could have ever determined that Waldemer's statements to the grand jury were immaterial. However, we recently rejected this reasoning in Ross, 77 F.3d at 1540. *fn1 There, we explained that "[t]he hypothetical rational jury is irrelevant for appraising the prejudice of an error in a criminal jury trial." Id. This is so because "[t]he Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty." Sullivan v. Louisiana, 508 U.S. 275, 280, 113 S. Ct. 2078, 2082 (1993). Accordingly, "[h]armless error analysis in the appeal of a criminal case asks 'not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.' " Ross, 77 F.3d at 1540 (quoting Sullivan, 508 U.S. at 279, 113 S. Ct. at 2081) (emphasis in Sullivan).
Applying this standard of analysis, we determined in Ross that the district court's decision not to submit the materiality of the defendants' statements to the jury for it to decide was prejudicial, noting that "[t]his court has held that, in general, failure to submit an essential element of a criminal offense to the jury for determination cannot be harmless; it is necessarily prejudicial." 77 F.3d at 1540 (citing United States v. Shetterly, 971 F.2d 67, 73 (7th Cir. 1992); United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988)). Now this is not to say that failure to submit an essential element of a criminal offense to the jury can never be harmless--i.e., that such an error is unamenable to harmless error review. If the circumstances of the case were such that the jury, in rendering its verdict as to another count or offense, had by that very decision necessarily also found the existence of the element in question beyond a reasonable doubt, the failure to submit that element to the jury would be harmless because the jury would have already decided that issue. Our cases hold only that if an element of an offense is not actually found by a jury, appellate court musings as to the actions of a hypothetical rational jury cannot render such an error harmless.
Here, the government cannot demonstrate that Waldemer's trial jury actually determined that the statements were material; it has merely argued, as the district court decided, that the jury could not have reasonably arrived at any other conclusion. But the element of materiality was never even mentioned in the jury's presence, and therefore the proposition that the government urges upon us is no more than an inference that the jury actually found that materiality was established beyond a reasonable doubt. We must, therefore, find that the decision not to submit the issue of materiality to the jury was prejudicial, and thus Waldemer has made the requisite showing of cause and prejudice necessary to allow him to raise the district court's Gaudin error as a ground for collateral attack.
But, the government notes that in Ross, despite our finding that the district court's error had been prejudicial, we held that the error did not warrant reversal under the plain error standard of review reasoning:
Here, the government presented evidence sufficient to convince any rational factfinder that the defendants' false statements were material. In fact, the issue of materiality was not even significantly disputed by the defendants at trial. Furthermore, the district court acted properly according to established precedent when it decided that the statements were material, rather than allowing the jury to come to the same obvious conclusion. It would be an unnecessary waste of judicial resources to retry this case based on the district court's failure to submit overwhelming evidence of a barely disputed issue to the jury, especially given that the district court was following settled law at the time. As a result, we do not find that the district court's error brings into question the fairness, integrity, or reputation of judicial proceedings, and we decline the invitation to grant Ross a new trial. 77 F.3d at 1540-41.
The government argues that the same is true of this case, and that because we would not have reversed Waldemer's conviction under the plain error standard had he raised it on direct appeal, we should decline to reverse on collateral review.
However, although there are similarities, the government overlooks the defining difference between this case and Ross. In Ross, the district court, in accordance with existing precedent, made an explicit finding that the defendants' statements "were 'material' and instructed the jury to consider the element of materiality to be established as a matter of law." Id. at 1538. Here, on the other hand, the jury was unaware that materiality was an element of the offense; the district court made no findings on the issue of materiality; and therefore, the jury received no instruction that the materiality of Waldemer's declarations before the grand jury had been established as a matter of law.
It appears that a variety of factors lead to this result. A recounting of the discussions of the materiality issue that are of record helps shed some light on how this occurred. Waldemer was originally charged in a 12-count indictment. The first eleven counts related to mail fraud and Travel Act violations. Count 12 alleged false material declaration to the grand jury. On December 7, 1992, while all twelve counts remained pending, Waldemer filed a motion to dismiss the indictment including a claim that materiality was lacking as to Count 12. The district court, on January 15, 1993, held a wide-ranging hearing on a variety of motions. After a brief ...