United States v. Foster

                          REVISED, OCTOBER 26, 2000

                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                           _______________________

                                 No. 99-11090
                           _______________________


UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                    versus

WILLIE FOSTER,

                                                          Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
_________________________________________________________________
                          October 5, 2000


Before DAVIS, JONES and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

              Appellant Willie Foster was indicted and convicted by a

jury of three counts of presenting false, fictitious and fraudulent

claims to the government in violation of 18 U.S.C. § 287 and § 2.

Foster made the fraudulent claims in the 1996 income tax returns of

three different individuals for payment of a tax refund.                   Each

count charged that Foster made a claim for “black taxes in the

amount   of    $43,209”    and   that   he   knew   the   claims   were   false,
fictitious and fraudulent.         After conviction, the district court

sentenced Foster to 24 months imprisonment, supervised release and

a $300 special assessment.         On appeal, Foster contends that the

district    court   erroneously     refused   to   charge   the   jury     that

materiality is an essential element of § 287 false claims offenses,

and that such error prejudiced his defense and was not harmless.

Because we conclude that even if the § 287 violations at issue in

this case required a jury instruction on materiality, the court’s

error was harmless, we affirm.

            Both Foster and the government urged this court to trace

the lengthy history of § 287 violations in light of the Supreme

Court’s recent spate of rulings on materiality requirements in

connection with fraud-based federal criminal statutes.                 Such an

endeavor, though it might be interesting, is entirely unnecessary

here.     In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827

(1999),    the   Supreme   Court   held   that   the   omission   of   a   jury

instruction on materiality, where that is an essential element of

a federal offense, is subject to harmless-error analysis.1                 Thus,

if the constitutional error was harmless beyond a reasonable doubt,

the conviction can stand.          Neder, 527 U.S. at 15, 119 S.Ct. at

1836.



     1
      Although we need not decide the issue in this case, we read
Neder to require a materiality instruction and the better practice
would be to give the instruction in a § 28 false claim offense.

                                      2
            In    this     case,     the     error,       if     any,    in    omitting    a

materiality instruction was of such quality.                      As the Court said in

Neder, “a false statement is material if it has ‘a natural tendency

to influence or [is] capable of influencing, the decision of the

decisionmaking body to which it was addressed,’” 527 U.S. at 16,

119 S.Ct. at 1827 (citations omitted).                          Neder then noted the

conclusion of several courts that any failure to report income is

material to a tax offense.            Id.     Here, the government argues that

filing any claim for recovery of money against the United States

involves    a    material      statement.          Even     if    that    conclusion      is

overbroad, there is no doubt that the amounts claimed in the black

tax returns that Foster assisted with were as material as they were

unjustified.       The     huge     scope    of    IRS’s       processing       and   review

activities      makes    it   inevitable         that   a      sensible       threshold   of

materiality must be applied to irregularities planted in tax refund

claims.     Were it not so, taxpayers would be encouraged to take

advantage of IRS’s practical inability to review each return

individually.       How       low   the     threshold       should       be    requires   no

exploration here, however, because of the large amounts claimed in

these returns.          We conclude, similarly to Neder, that beyond a

reasonable doubt, Foster’s false statements were material to the

tax refund claims.

            For    these      reasons,       the    judgment        of    conviction      is

AFFIRMED.

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