486
Opinion of the Court
should not be considered by you in determining the guilt or innocence of the defendant[s]," App. 43. The jury convicted respondents on both counts, the court treated the statements as material, and respondents appealed.
While the appeal was pending, we decided United States v. Gaudin, 515 U. S. 506 (1995), in which the parties agreed that materiality was an element of 18 U. S. C. § 1001, but disputed whether materiality was a question for the judge or jury, 515 U. S., at 509. Applying the rule that "[t]he Constitution gives a criminal defendant the right to have a jury determine . . . his guilt of every element of the crime with which he is charged," we held that the jury was entitled to pass on the materiality of Gaudin's statements, id., at 522- 523. When the Court of Appeals in this case requested supplemental briefing on the applicability of Gaudin, respondents argued that under § 1014 materiality is an element on which they were entitled to a jury's determination; the Government argued, for the first time, that materiality is not an element under § 1014, so that no harm had been done when the judge dealt with the issue. The Court of Appeals agreed with respondents, vacated their convictions and sentences, and remanded the case for a new trial. 63 F. 3d, at 749-751.
We granted the Government's petition for certiorari to decide whether materiality of a false statement or report is an element under § 1014.3 517 U. S. 1154 (1996). We now vacate and remand.
3 Most, but not all, of the Federal Courts of Appeals have held that materiality is an element. Compare United States v. Lopez, 71 F. 3d 954, 960 (CA1 1995), cert. denied, 518 U. S. 1008 (1996); United States v. Ryan, 828 F. 2d 1010, 1013, n. 1 (CA3 1987); United States v. Bonnette, 663 F. 2d 495, 497 (CA4 1981), cert. denied, 455 U. S. 951 (1982); United States v. Thompson, 811 F. 2d 841, 844 (CA5 1987); United States v. Spears, 49 F. 3d 1136, 1141 (CA6 1995); United States v. Staniforth, 971 F. 2d 1355, 1358 (CA7 1992); Theron v. United States Marshal, 832 F. 2d 492, 496-497 (CA9 1987), cert. denied, 486 U. S. 1059 (1988); United States v. Haddock, 956 F. 2d 1534, 1549 (CA10), cert. denied, 506 U. S. 828 (1992); United States v. Rapp, 871 F. 2d 957, 964 (CA11), cert. denied sub nom. Bazarian v.
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