United States v. Wells, 519 U.S. 482, 6 (1997)

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Cite as: 519 U. S. 482 (1997)

Opinion of the Court

II

We first address respondents' efforts to block us from reaching the question on which we granted certiorari. Given the Government's proposal for jury instructions to the effect that materiality is an element under 1014, respondents argue that Federal Rule of Criminal Procedure 30 and the doctrines of "law of the case" and "invited error" each bar the Government from taking the position here that materiality is not an element. None of these reasons stands in our way to reaching the merits.

Rule 30 (applicable in this Court, see Fed. Rules Crim. Proc. 1, 54(a)) provides that "[n]o party may assign as error any portion of the charge [given to the jury] . . . unless that party objects thereto before the jury retires to consider its verdict." But the Government is not challenging the jury instruction in an effort to impute error to the trial court; it is merely arguing that the instruction it proposed was harmless surplusage insofar as it was directed to the jury.

As for the two doctrines, respondents are correct that several Courts of Appeals have ruled that when the Government accepts jury instructions treating a fact as an element of an offense, the "law of the case" doctrine precludes the Government from denying on appeal that the crime includes the element. See United States v. Killip, 819 F. 2d 1542, 1547-1548 (CA10), cert. denied sub nom. Krout v. United States, 484 U. S. 987 (1987); United States v. Tapio, 634 F. 2d 1092, 1094 (CA8 1980); United States v. Spletzer, 535 F. 2d 950, 954 (CA5 1976).4 They are also correct that Courts of

United States, 493 U. S. 890 (1989) (all holding materiality to be an element of 1014), with United States v. Cleary, 565 F. 2d 43, 46 (CA2 1977) (concluding that materiality is not an element), cert. denied sub nom. Passarelli v. United States, 435 U. S. 915 (1978).

4 In this context, the "law of the case" doctrine is something of a misnomer. It does not counsel a court to abide by its own prior decision in a given case, but goes rather to an appellate court's relationship to the court of trial. See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4478 (1981).

487

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