United States v. Michael Curtis Keys , 95 F.3d 874 ( 1996 )

TROTT, Circuit Judge:

Keys was charged with the crime of having made as a witness a false declaration in federal court in violation of 18 U.S.C. § 1623(a), also known as perjury. The statutory “materiality” element of this offense, however, was not submitted for decision to the jury, but, with the assent of both parties, to the trial judge. This practice reflected the established law of this circuit at the time of the trial. After the judgment of conviction, however, the law changed. The law now mandates that the materiality element of such crimes be decided not by the trial judge, but by the trial jury.

On appeal, Keys asks for the retroactive benefit of this change in the law, and he asks us to review his conviction for error pursuant to Fed.R.Crim.P. 52(a) as though he had objected to the handling of the materiality element. The government takes exception to this request and exhorts us instead to review for “plain error” under Fed.R.Crim.P. 52(b) as defined by the more stringent discretionary standards called for by United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In this regard, Keys and the government present us with significant questions regarding the limits of our authority as an appellate court to review a criminal judgment of conviction. We granted rehearing en banc in United States v. Keys, 67 F.3d 801 (9th Cir.1995), to decide these issues. We reverse and remand for a new trial.¹

I

Facts

Keys was serving time in federal prison for armed bank robbery. A former DEA agent named Darnell Garcia was on trial for conspiracy and other crimes. Another prisoner testified for the prosecution against Garcia pursuant to a plea bargain. Garcia called Keys as a witness to impeach the other prisoner. Keys testified that while he and the prosecution witness had shared a cell, the witness told him he was willing to lie for the government against Garcia in exchange for leniency for himself.

Keys had previously sent a letter to Garcia, who was being held in the same facility. Keys hid the letter among some magazines he asked a guard to deliver to Garcia. A letter smuggled past prison officials to another prisoner is called a “kite.” The intercepted kite lends itself to the inference that Keys conspired with Garcia to lie for him at trial. The text of the letter reads:

HeyG.,

I’ve got everything covered on my end and I’m ready whenever the time is right. I hope that I can really make a difference and you come out on top. Let me know how long you anticipate your thing to last, so I can figure out how long I’ll be here. I’m trying to stay as long as I possibly can and try to get a lot done while I’m here. I heard that R.R. left Fri. and he’s in Okla. right now. I’m also trying to get a few things from the commissary but they only let us order two cosmetics items a week. If you can hook it up right away I need you to have somebody send this girl some money upstairs, so I can have her get me everything I need from the commissary. It don’t have to be nothing but twenty or fifty dollars.

That guy,

P.S. Here’s her name and number: Jeanna Carson — Reg. No. 92373-612.

The guard found and photocopied this letter, and unknown to Keys, he provided a copy of it to his supervisor. On cross-examination, the prosecutor asked Keys about the kite, and he denied sending it. His denials became the subject of the false declaration charge of which he stands convicted.

II

Instructional Error

Counsel for both sides proposed, and the court gave from our Ninth Circuit Manual of Model Instructions, an instruction correct under the law as it then stood:

COURT’S INSTRUCTION NO. 16

The defendant is charged in Count One of the indictment with having made a false declaration in violation of Section 1623 of title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant testified under oath before a court of the United States;

Second, the testimony was false; and

Third, the defendant knew that the testimony was false.

The instruction, No. 8.29C, did not submit the issue of the materiality of the false testimony to the jury as one of the elements which the government had to prove beyond a reasonable doubt. Yet the statute criminalizes only such false testimony as is material. The statute uses the language, “Whoever under oath ... makes any false material declaration....” 18 U.S.C. § 1623(a).

This model instruction was based on established Ninth Circuit law. We had held in United States v. Clark, 918 F.2d 843, 845 (9th Cir.1990), that “materiality is an issue of law for the court to decide.” In Clark, we followed the rule set out by the Supreme Court in Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929). In accord with this understanding, the trial court found that Keys’s alleged false declaration was material. No mention of this finding was made to the jury.

Ill

Analysis

A. Application of New Rule of Law

In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Supreme Court held that “a new [constitutional] 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 for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 328, 107 S.Ct. at 716 (emphasis added). Embracing Justice Harlan’s view, the Court said that failure to do so “would violate[ ] basic norms of constitutional adjudication.” Id. at 322, 107 S.Ct. at 713 (citing United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). In the instant case, such a new rule was announced in this circuit in 1994 after the defendant’s trial in 1992 and before his judgment of conviction became final. The “new rule” is that the materiality element of an allegedly actionable statement must be submitted for a finding in a jury trial to the jury, not to the court.

We announced this holding in United States v. Gaudin, 28 F.3d 943 (9th Cir.1994) (en banc), a case in which the defendant had been charged with making material false statements in violation of 18 U.S.C. § 1001. We held it was error for the district court to have instructed the jury that the materiality element of the charge was established as a matter of law. The Supreme Court unanimously affirmed our landmark holding in United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The question presented as described by Justice Scalia was “whether it was constitutional for the trial judge to refuse to submit the question of ‘materiality’ to the jury”; and the answer to this question was “no.” Gaudin, — U.S. at -, 115 S.Ct. at 2312 (emphasis added).

As our colleague Judge Kleinfeld observed in the earlier three-judge panel opinion in this case, Justice Scalia expressed the logic of the Gaudin Court in a syllogism:

The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality.

Keys, 67 F.3d at 808 (citing Gaudin, — U.S. at ——, 115 S.Ct. at 2314). We agree with Judge Kleinfeld’s analysis that “[tjhis syllogism applies with equal force to the perjury statute at issue in this ease, 18 U.S.C. § 1623,” id., because the text of the statute renders criminal only false declarations that are “material,” and because materiality contains a “factual component.” See Gaudin, 28 F.3d at 949; Gaudin, — U.S. at ---, 115 S.Ct. at 2318-19 (The proposition that the element of materiality in a perjury prosecution is to be decided by a judge is “contrary to the uniform general understanding.”). Accordingly, we overrule our holding in Clark that in a perjury prosecution, materiality is a question of law for the court to determine; and we disapprove old Model Instruction No. 8.29C. Thus, under Griffith, Keys is entitled to the benefit of this new constitutional rule because it was announced after his trial and before his case had become final.

B. Error for Which We Review

It would seem axiomatic, therefore, that we should proceed at this point using the Rule 52(a) standard of review to decide whether the application of the Gaudin principle to this case requires us to reverse Keys’s conviction. The government suggests, however, that because he acquiesced in the use of the standard materiality instruction at his trial, the review to which he is now entitled is not under Rule 52(a), but for “plain error” under Rule 52(b) as currently defined under the stringent Olano standards. United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We respectfully disagree.²

Since 1970, we have advised criminal defense counsel in this circuit that when faced with a “solid wall of circuit authority” endorsing a jury instruction, no objection to that instruction need be registered in the trial court to preserve the point on appeal should that “solid wall” suddenly crumble in the interim and render the instruction defective. As we noted,

An exception [to the instruction] would not have produced any results in the trial court. Under these circumstances were we to insist that an exception be taken to save the point for appeal, the unhappy result would be that we would encourage defense counsel to burden district courts with repeated assaults on their settled principles out of hope that those principles will be later overturned, or out of fear that failure to object might subject counsel to a later charge of incompetency.

United States v. Scott, 425 F.2d 55, 57-58 (9th Cir.1970) (en bane). Accordingly, we gave Scott on appeal the benefit of a new constitutional rule which was articulated after his trial but before his judgment of conviction had become final.³

We repeated this reassuring message in 1988 in People of Territory of Guam v. Yang, 850 F.2d 507 (9th Cir.1988) (en banc), and we referred in passing to our consistent application of the Scott “solid wall” principle “when appropriate.” Id. at 512 n. 8. Most importantly, we explicitly held in Yang that “even though defense counsel did not object contemporaneously to the trial court’s instruction, we review the instruction for reversible error, rather than plain error.” Id. (emphasis added).⁴ We described this holding as an “exception to Fed.R.Crim.P. 30” prohibiting a party from assigning as error any instruction or omission therefrom to which the party did not timely object. Id. We see no distinction whatsoever in the Scott/Yang context between not objecting on one hand, and affirmatively offering a settled model instruction on the other.⁵

Given this illuminating backdrop, two observations are pertinent. First, to subject the judgment of conviction of a defendant such as Keys, whose counsel adhered to a settled rule of law, to review for “plain error” would be unconscionable. Such a holding would render our Scott/Yang solid wall doctrine a hoax and be tantamount to a double-barreled message to counsel: (1) do not rely on our opinions; and (2) object to everything or your clients’ arguments on appeal may be measured by a more restrictive standard.

Second, Olano deals with Rule 52(b) “forfeited” error. 507 U.S. at 732-35, 113 S.Ct. at 1776-78. In contrast, Rule 52(a) deals with “nonforfeited error.” Id. at 731, 113 S.Ct. at 1776. Given our Scott/Yang doctrine, the validity of which we again affirm, treating Key’s counsel’s assent to the application of settled law as a “forfeiture” (or as “invited error” or “waiver”) would be illogical and plainly unfair. To label what happened in this trial an “error” can only be appropriate after the fact and in the light of new legal developments. Without a contemporaneous error, there was nothing to forfeit, to invite, or to waive. As the Second Circuit said in United States v. Viola, an attorney “cannot be said to have ‘forfeited a right’ by not making an objection, [because] at the time of trial no legal right existed.” 35 F.3d 37, 42 (2nd Cir.1994). We address on appeal such a supervening change in the law as “error,” but to process it in Olano “forfeited error” (or “invited error”) terms is manifestly wrong.

Furthermore, the heightened standard of review suggested by the government is at odds with Griffith which “instructs” us (as a “lower court”) “to apply new rules retroactively to cases not yet final.” 479 U.S. at 323, 107 S.Ct. at 713. Such mandatory language is flatly inconsistent with Rule 52(b) Olano plain error, notice of which by an appellate court is only discretionary:

Rule 52(b) is permissive, not mandatory. If the forfeited error is “plain” and “affect[s] substantial rights,” the Court of Appeals has authority to order correction, but is not required to do so. The language of the Rule (“may be noticed”), the nature of forfeiture, and the established appellate practice that Congress intended to continue, all point to this conclusion. “[I]n criminal cases, where the life, or as in this case the liberty, of the defendant is at stake, the courts of the United States, in the exercise of sound discretion, may notice [forfeited error].”

Olano, 507 U.S. at 735-36, 113 S.Ct. at 1778 (quoting Sykes v. United States, 204 F. 909, 913-14 (8th Cir.1913)).

The approach we take in this ease reaffirms our statement in Yang that we review under these special circumstances not for plain error, but only for error under Rule 52(a). Our mode of analysis is akin to the Griffith-oriented approach in United States v. Mkhsian, 5 F.3d 1306 (9th Cir.1993), a post-Olano case. In Mkhsian, we permitted a non-objecting defendant to benefit from a sea-change in the law, and we did not require him to satisfy the Olano standards. We did so based on Griffith, and we looked only for error as controlled by Rule 52(a). Id. at 1311.⁶

In the main, we conclude that Olano in these circumstances is simply inapposite.⁷ As explained, Olano deals with Rule 52(b) and the concept of forfeiture, a concept which does not fit in this case. Moreover, Olano did not involve a situation where a new rule had intervened in the adjudicatory process, making a “clear break” with the past. Where, as here, a defendant faced with a solid wall of authority endorsing a jury instruction acquiesces in or fails to object to it, that defendant is entitled on appeal to the benefit of the new rule without being held to plain error standards.

C. Rule 52(a) Error

The question we must now answer is whether the processing of the materiality element in this ease requires reversal, or not, a question we address in the general context of Rule 52(a): “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” We note also that because the instructional error here is of constitutional dimension, to be disregarded it must be harmless beyond a reasonable doubt.

On remand from the Supreme Court, we noted in Olano III that:

[Ujnder Rule 52(a), most error constitutes “ ‘trial error’-error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” ... Some error is not susceptible to harmless error analysis and is per se prejudicial. Such error consists of “structural defects in the constitution of the trial mechanism_ [Such] constitutional deprivations [are] structural defects] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.”

United States v. Olano, 62 F.3d 1180, 1188-89 (9th Cir.1995) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 1263-65, 113 L.Ed.2d 302 (1991)).

In Gaudin, we held that the error inherent in instructing a jury that an element of the crime charged was established as a matter of law could not be harmless because it was “structural.” We said that “[w]hen proof of an element has been completely removed from the jury’s determination, there can be no inquiry into what evidence the jury considered to establish that element because the jury was precluded from considering whether the element existed at all.” 28 F.3d at 951. Nevertheless, in Roy v. Gomez, 81 F.3d 863 (9th Cir.1996) (en banc), we subsequently identified a distinction between cases like Gaudin in which “a court instructs the jury that an element of the crime has been established as a matter of law,” and cases like Keys’s in which the trial court “simply fails to alert the jurors they must consider it.” Id. at 866. In the latter circumstance, we allowed that

Even though an element of the offense is not specifically mentioned, it remains possible the jury made the necessary finding. Review for harmless error is appropriate, but it is the type of review discussed in Carella [v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989).] That is, the omission is harmless only if review of the facts found by the jury establishes [beyond a reasonable doubt] that the jury necessarily found the omitted element.

Id. at 867 (emphasis in original). Thus, although the manner in which the materiality element was processed in this case is quite similar to the error in Gaudin, we apply the Carella harmless error test as explained in Roy. The state has the burden of showing that the error was harmless beyond a reasonable doubt. Id. at 868 (“On direct appeal, relief is granted for constitutional error unless the state demonstrates the error was harmless beyond a reasonable doubt.”).

The Carella harmless error test is satisfied “only if the reviewing court can tell what the jury actually found, [because] only then can the court conclude ‘beyond a reasonable doubt’ ... that the jury found the facts necessary to support the conviction.” Id. at 868 (quoting Carella, 491 U.S. at 271, 109 S.Ct. at 2424) (emphasis added) (citation omitted). As we explained in Roy:

It was for the jury, not the judges who have reviewed the ease, to determine which interpretation of the evidence was correct. We are not free to evaluate the evidence and postulate what the jury would have found had it been properly instructed. “[T]he question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials.”

Id. at 867 (quoting Carella, 491 U.S. at 269, 109 S.Ct. at 2422) (emphasis added in Roy). If a reviewing court cannot tell what the jury actually found, because there are no findings from which a reviewing court could conclude that the jury necessarily found the omitted element, then the Carella harmless error analysis ends and reversal is required. Id. at 868.

Looking at the record and in particular the whole of the instructions given to the jury, we note that the only reference to materiality made to the jury was in connection with the court’s statement of the charge against him:

Count One of the indictment charges that defendant Michael Curtis Keys violated Title 18, United States Code, Section 1623, which provides in pertinent part as follows: “Whoever under oath ... in any proceeding before or ancillary to any court of the United States knowingly makes a false material declaration is guilty of an offense against the United States.”

(emphasis added). Immediately after this statement of the offense, the court-as set out earlier in this opinion-identified the specific elements of the offense required to be proved by the government beyond reasonable doubt. Not surprisingly, materiality was not one of them. Given these factors, we are certain only that the jury found that (1) Keys testified under oath in district court, (2) his testimony was false, and (3) he knew it was false. In making such findings either individually or collectively, the jury would not necessarily have had to find that the false testimony in question was material to the issues under consideration, especially given the lack of instructional guidance on the meaning of materiality. Thus, the Carella harmless error test for constitutional instructional defects cannot be satisfied, the error manifestly affects substantial rights, and Keys is entitled to a new trial.

IV

Conclusion

Changing the rules after the event and requiring a second trial is understandably troublesome, but a trial is not a game, and the Constitution is not a set of game rules. The Constitution is a solemn promise that the people of this nation have made to each other that neither life nor liberty shall be taken by our government without faithful adherence to certain basic principles. As Justice Scalia observed in Carella,

The constitutional right to a jury trial embodies “a profound judgment about the way in which law should be enforced and justice administered.” It is a structural guarantee that “reflect[s] a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” A defendant may assuredly insist upon observance of this guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt. That is why the Court has found it constitutionally impermissible for a judge to direct a verdict for the state.

491 U.S. at 268, 109 S.Ct. at 2422 (Scalia, J., concurring); Gaudin, 28 F.3d at 946-47 (quoting Carella, 491 U.S. at 268, 109 S.Ct. at 2422).

Our fundamental principles are subject to refinement and reinterpretation as we live and learn from experience. As distasteful as it may be for both the government and the defendant to start over, the fate of a single trial pales in comparison to the imperative of keeping faith with the charter of our collective existence.

Accordingly, because the record demonstrates that the jury did not determine the materiality of the alleged false declaration, the judgment of conviction is defective no matter how strong the evidence of guilt may be. We reverse and remand for a new trial.⁸

1 . The three-judge panel opinion in this case found at 67 F.3d 801 (9th Cir.1995) is ordered withdrawn. Nevertheless, and with thanks to our colleagues, we draw directly from it regarding our statement of the salient facts and the issues presented by this appeal.

2 . The government also argues that we must disregard this instructional error because it was “invited.” We reject this contention for reasons that are apparent in our discussion of the applicability of "plain error.” United States v. Guthrie, 931 F.2d 564, 567 (9th Cir.1991), is inappo-site.

3 . This approach in the District of Columbia Circuit is called the "supervening-decision doctrine.” United States v. Washington, 12 F.3d 1128, 1139 (D.C.Cir.1994) (“The supervening-decision doctrine reflects the principle that it would be trnfair, and even contrary to the efficient administration of justice, to expect a defendant to object at trial where existing law appears so clear as to foreclose any possibility of success.”).

4 . We disapprove any suggestion in United States v. Nash, 76 F.3d 282 (9th Cir.1996), to the contrary.

5 . The comment to the Model Instruction said that "materiality of a false declaration is ... a question of law for the trial court to determine ... and need not be submitted to the juiy.”

6 .We had used the same approach before Olano in United States v. Montoya, 945 F.2d 1068 (9th Cir. 1991). Citing Griffith, we said, "Although McCormick [v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991)] was decided after the jury verdict and thus not available to the district judge when he instructed the jury, we must apply the McCormick standards on appeal”; and the panel then did, reversing and remanding on the affected counts. The Montoya opinion is notable also for its absence of any mention or analysis of plain error.

Any suggestion in U.S. v. Lessard, 17 F.3d 303, 305 (9th Cir.1994), or United States v. Sterner, 23 F.3d 250 (9th Cir.1994), that we applied "plain error” review in Mkhsian is erroneous. To the extent that Lessard and Sterner suggest a different approach to this issue, they are disapproved.

7 . We are aware that our analysis differs from cases decided in other circuits, but we are not persuaded that their approach is correct. See, e.g., United States v. Retos, 25 F.3d 1220, 1228-33 (3d Cir.1994); United States v. Viola, 35 F.3d 37, 41-43 (2d Cir.1994); United States v. Ross, 77 F.3d 1525 (7th Cir.1996); United States v. Kramer, 73 F.3d 1067 (11th Cir.1996).

8 . Our holding renders moot Key's other claims.