United States v. Wells, 519 U.S. 482, 8 (1997)

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

Opinion of the Court

The question of materiality as an element was raised before the Court of Appeals, ruled on there, clearly set forth in the certiorari petition, fully briefed, and argued. Nor would reaching the issue excuse inattention or reward cunning. For some time before respondents' trial in 1993, the Eighth Circuit had assumed that the Government was bound to prove a false statement's materiality as an element under 1014, see 63 F. 3d, at 750-751; United States v. Ribaste, 905 F. 2d 1140, 1143 (1990); United States v. McKnight, 771 F. 2d 388, 389 (1985), and had treated this issue as one for the judge, not the jury, see United States v. Ribaste, supra, at 1143. Since the Government was confident that it had evidence of materiality to satisfy the Circuit rule, it had no reason not to address the element when it drafted the indictment and its proposed jury instructions. When Gaudin rendered it reversible error to assign a required materiality ruling to the court, the Government suddenly had reason to contest the requirement to show materiality at all. Nothing the Government has done disqualifies it from the chance to make its position good in this Court.

III

We accordingly consider whether materiality of falsehood is an element under 1014, understanding the term in question to mean "ha[ving] a natural tendency to influence, or [being] capable of influencing, the decision of the decision-making body to which it was addressed," Kungys v. United States, 485 U. S. 759, 770 (1988) (internal quotation marks

[jury] instructions that petitioner accepted, and indeed itself requested." In contrast to the case at hand, however, the petitioner in Kibbe had not, in the Court of Appeals, raised an issue critical to resolving the question presented in its petition for a writ of certiorari, the Court of Appeals had not considered that related issue, and the petitioner had not explicitly raised that related issue in its certiorari petition, id., at 258-260. See also United States v. Williams, 504 U. S. 36, 43, n. 3 (1992) (discussing Kibbe).

489

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