OCTOBER TERM, 1996
Syllabus
certiorari to the united states court of appeals for the eleventh circuit
No. 96-203. Argued February 25, 1997—Decided May 12, 1997
Petitioner Johnson testified before a federal grand jury, investigating, inter alia, the disposition of proceeds from her boyfriend's alleged drug trafficking, that she had obtained tens of thousands of dollars to improve her home from a box of cash given her late mother by one Talcott. Subsequently, she was charged with violating 18 U. S. C. § 1623, which proscribes "knowingly mak[ing] any false material declaration" under oath before a grand jury. At her trial, it was revealed that her boyfriend had negotiated the purchase of her home and had an interest in a corporation whose checks had been used to help pay for the property, and that Talcott had died several years before the time he allegedly gave her mother the money. Johnson did not object when, in accordance with then-extant Circuit precedent, the judge instructed the jury that materiality was a question for him to decide, and that he had determined that her statements were material. Johnson was convicted of perjury, but before her appeal, this Court ruled, in United States v. Gaudin, 515 U. S. 506, that the materiality of a false statement must be decided by a jury rather than a trial judge. On appeal, Johnson's claim that her conviction was invalid under Gaudin was reviewed by the Eleventh Circuit pursuant to Federal Rule of Criminal Procedure 52(b), which allows plain errors affecting substantial rights to be noticed even though no objection has been made. Following the analysis outlined in United States v. Olano, 507 U. S. 725, the court assumed, arguendo, that the District Court's failure to submit materiality to the jury constituted "error" that was "clear or obvious." However, it concluded that any such error did not affect "substantial rights" because its independent review of the record showed that there was "overwhelming" evidence of materiality and that no reasonable juror could conclude that Johnson's false statements about the money's source were not material to the grand jury's investigation.
Held: The trial court's action in this case was not "plain error" of the sort which an appellate court may notice under Rule 52(b). (a) Since § 1623's text leaves no doubt that materiality is an element of perjury, Gaudin dictates that materiality in this case be decided by the jury, not the court. Johnson's failure to timely assert that right before the trial court ordinarily would result in forfeiture of the right
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