United States v. Joseph Johnson, Jr.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 20-1449
______________

UNITED STATES OF AMERICA

v.

JOSEPH R. JOHNSON, JR.,
Appellant
______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-19-cr-00367-001)
District Judge: Honorable Harvey Bartle, III
______________

Argued June 22, 2021

Before: SMITH, Chief Judge, MATEY and FISHER, Circuit
Judges.

(Filed: November 23, 2021)
Emily McKillip [Argued]
Linwood C. Wright, Jr.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee

Abigail E. Horn [Argued]
Federal Community Defender Office for the Eastern District of
Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
______________

OPINION OF THE COURT
______________

MATEY, Circuit Judge.

Joseph Johnson developed an unusual fascination with
the allegations of sexual assault against entertainer Bill Cosby.
Hoping to cast doubt on the accusers, Johnson posed as an
attorney and filed a fabricated document on the civil docket of
one of the lawsuits against Cosby. His trick was quickly
discovered, and the Government brought criminal charges
against Johnson for making a false statement and identity theft,
leading to a conviction after a jury trial. Johnson now appeals,
arguing that the Government failed to prove that his statements
were material.

2
 We agree. Johnson’s behavior wasted public time and
resources and distracted court officials from their work. But
only Congress enjoys the authority to turn conduct into a
federal crime. And while the Government presented plenty
showing that Johnson’s statements were false, it offered no
evidence and elicited no testimony from the only individual it
proposed as the government decisionmaker—the judge in the
underlying litigation—to explain how the filing could
influence a judicial decision. Because that evidence was
necessary for the Government to establish liability under 18
U.S.C. § 1001, we will reverse Johnson’s convictions and
remand for entry of a judgment of acquittal.

I. BACKGROUND

The story of Johnson’s false filing begins, as does much
in our age, on the internet. Johnson became fixated on the
claims against Cosby and decided to come to his defense. At
first, his acts were no more distracting than most of the internet,
largely posts about Cosby’s innocence. Then, Johnson decided
to leave the virtual world and insert himself into the real one.

A. The Civil Action

The rest of the story follows a winding road, and starts
with Andrea Constand, who sued Cosby in 2005 alleging
sexual assault. In 2015, Constand filed another lawsuit in the
Eastern District of Pennsylvania, claiming defamation and
invasion of privacy for Cosby-related claims. As in 2005,
Constand was represented by attorney Dolores Troiani. When
Troiani filed the 2015 Complaint, she inadvertently failed to
attach an exhibit. The next day, Troiani filed a “Praecipe to
Attach Exhibit ‘A’ to Plaintiff’s Complaint,” along with the

3
omitted exhibit and a certificate of service.1 The filing was
docketed, and that appeared to be the end of the matter.

It was not. A few months later, Troiani received several
emails from an individual using the name “Tre Anthony.” All
were sent on the same day, and all related to Constand’s
allegations against Cosby. In the first, “Tre Anthony” warned
Troiani that her “client’s physical street address . . . will be
released to the media and published online unless you notify
the undersigned of your objection to the same no later than
close of business on January 4, 2015.” (App. at 362.) A threat
heightened by including Constand’s residential address.

A second email followed, promising to “ma[ke] public
through all media outlets and social media” the information in
the first email, as well as information relating to other alleged
Cosby victims, whom “Tre Anthony” declared to have made
“false[] and fraudulent[]” allegations against Cosby. (App. at
367, 369.) And a third, sent to Troiani, other attorneys, and The
New York Times, stated that “[t]he name, physical address and
telephone number of each of the plaintiffs” would be
“circulated on social media” and other outlets. (App. at 377.)

“Tre Anthony” attached several documents to his
emails, including an unsigned Internal Revenue Service
“Information Referral” form alleging that Constand had failed
to report income derived from “baseless lawsuits” premised
“on a decade old campaign of . . . false allegations.” (App. at

1
A “praecipe” is a “written motion or request seeking
some court action.” Praecipe, Black’s Law Dictionary (11th
ed. 2019).

4
371–73.) He also attached copies of the complaints from
Constand’s lawsuits.

All of which brings us to Johnson’s alleged crime.
Roughly a month later, someone hand-delivered an envelope
to the Clerk of the United States District Court for the Eastern
District of Pennsylvania. The envelope contained a document
entitled “Praecipe to Attach Exhibit ‘A’ to Plaintiff’s
Complaint.” It was a photocopy of the praecipe filed by
Troiani, along with a photocopy of Troiani’s original
certificate of service. But this filing attached the unsigned IRS
Information Referral form and complaints previously
circulated by “Tre Anthony,” in effect, accusing Constand of
failing to report income obtained in connection with her
lawsuits.

Following the customary course, the Clerk’s office
uploaded all the documents to the docket, triggering an
automatic email notification to Troiani. Confused, Troiani
called the Clerk’s office, who directed her to the chambers of
the presiding judge (the “Judge”). The Judge then entered an
order striking the false praecipe and exhibit from the docket,
explaining that the “filing [wa]s fraudulent and was not filed
by the attorney whose purported signature appears on the
document.” (App. at 598.)

B. Johnson Is Discovered, Indicted, and Convicted

The “Case of the False Praecipe” was referred to the
Federal Bureau of Investigation, and after an extensive inquiry,
the Government determined that Johnson was the culprit. A
chain of business records connected “Tre Anthony’s” email
account to Johnson. Johnson, the Government learned, used his

5
work computer to repeatedly access the docket for Constand’s
lawsuit (including the order striking the false praecipe), and to
obsessively conduct internet searches relating to Constand and
Cosby. And a forensic analysis conducted at the FBI’s lab in
Quantico, Virginia discovered Johnson’s fingerprints on the
tape used to seal the envelope containing the false praecipe.

Evidence piled high in hand, the Government persuaded
a grand jury in the Eastern District of Pennsylvania to return
an indictment charging Johnson with one count of knowingly
and willfully making materially false, fraudulent, and fictitious
statements and representations and aiding and abetting, in
violation of 18 U.S.C. § 1001 and § 2 (Count 1);2 and one count
of knowingly and without lawful authority using a means of
identification during and in relation to the false statements, and
aiding and abetting, in violation of 18 U.S.C. § 1028A(a)(1),
(c)(4) and § 2 (Count 2).

After a three-day trial, a jury found Johnson guilty on
both counts. Johnson moved for a judgment of acquittal, and,
in the alternative, a new trial. The District Court denied the
motion, and sentenced Johnson to thirty-two months of

2
The indictment did not specify a subsection of § 1001,
but it mirrored the language of subsection (a)(2), which forbids
the “mak[ing]” of “any materially false, fictitious, or
fraudulent statement or representation.” 18 U.S.C § 1001(a)(2).
Subsection (a)(3), by contrast, prohibits “mak[ing] or us[ing]
any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry,”
and (a)(1) proscribes “falsif[ying], conceal[ing], or cover[ing]
up by any trick, scheme, or device a material fact.” Id. §
1001(a)(1), (a)(3).

6
imprisonment and three years of supervised release, as well as
a special assessment of $200. Johnson appealed.3

II. DISCUSSION

Johnson raises two challenges to his conviction. First,
he argues that the Government’s evidence cannot prove the
materiality element of 18 U.S.C. § 1001. That the praecipe was
struck from the docket, he contends, may have been proof of
its falsity, but not its materiality. Second, Johnson claims that
the District Court’s jury instructions constructively amended
the indictment. While the Government’s indictment charged
the “making” of a false statement, the District Court instructed
the jury that it could convict Johnson for “making or using” a
false document, which impermissibly broadened its scope.

We agree with Johnson’s first argument, so we need not
reach his second.4 The Government’s trial evidence was
insufficient for a rational jury to conclude Johnson’s
misstatements were material to the Judge, the only pertinent
governmental decisionmaker identified by the Government at
trial. More, it would be a miscarriage of justice for his
conviction to stand when the Government failed to prove all
elements of the offense. As a result, Johnson’s conviction for
false statements must be reversed. And because Johnson’s

3
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 28 U.S.C. § 1291.
4
Though we note that the Government concedes that the
indictment was constructively amended, arguing only that
Johnson suffered no prejudice.

7
conviction for aggravated identity theft depends on his false-
statements conviction, we will reverse it as well.5

A. We Review Johnson’s Sufficiency-of-the-Evidence
Challenge for Plain Error

Johnson and the Government disagree on the standard
of review for Johnson’s sufficiency-of-the-evidence challenge.
We conclude that plain-error review is required.

1. Preserving Issues on Appeal

Our standard of review turns on whether Johnson
preserved his sufficiency challenge by “squarely” presenting
the issue to the District Court. United States v. McCulligan,
256 F.3d 97, 101 (3d Cir. 2001). While preservation does “not
require any particular incantation,” United States v. Miller, 833
F.3d 274, 283 (3d Cir. 2016), it does demand that the defendant
give the district court a chance to “consider and resolve” the
question later raised on appeal. Puckett v. United States, 556
U.S. 129, 134 (2009). Preserving arguments is often key;

5
Aggravated identity theft prohibits identity theft
“during and in relation to” any of the felonies enumerated in
subsection (c), including material false statements. 18 U.S.C. §
1028A(a)(1); id. § 1028A(c)(4) (defining “felony violation” to
include false statements). Conviction for aggravated identity
theft depends on commission of an enumerated felony, so the
reversal of a conviction for the predicate felony requires
reversal of the aggravated identity theft conviction. See, e.g.,
United States v. Camick, 796 F.3d 1206, 1219 (10th Cir. 2015)
(reversing aggravated identity theft conviction because of
reversal of material false statements conviction).

8
“merely raising an issue that encompasse[d] the appellate
argument” can be inadequate. United States v. Joseph, 730
F.3d 336, 337 (3d Cir. 2013); see also id. at 340 (distinguishing
between “issues” and “arguments,” and explaining that the
former can encompass “more than one of the latter”). So “when
a Rule 29 motion raises specific grounds, or arguments . . . all
such arguments not raised are unpreserved on appeal” and are
reviewed for plain error. United States v. Williams, 974 F.3d
320, 361 (3d Cir. 2020). A sensible rule that encourages
litigants to directly identify for the district court the purported
grounds for error.

2. Johnson Did Not Raise Materiality

Johnson contends that he raised “a general Rule 29
motion,” sufficient “to preserve all [his] sufficiency claims for
appeal.” (Reply Br. at 7–8.) Not so.6 At the close of the
Government’s evidence, Johnson moved for a judgment of
acquittal focusing “specifically” on the lack of “evidence
provided” as to whether he had “caused” a false statement to
be filed. (App. at 681.) As a result, Johnson argued, “the
Government ha[d] not met [its] burden at this point to send
th[e] case to the jury.” (App. at 681.) Johnson did not mention
materiality. The District Court denied the motion.

6
Putting to one side whether Johnson’s Rule 29 motion
was a “general motion,” we note that we have not held that a
“general” Rule 29 motion preserves all sufficiency arguments
for appeal. To the contrary, in United States v. Williams we
found it “unnecessary . . . to . . . hold that a broadly stated Rule
29 motion preserves all arguments bearing on the sufficiency
of the evidence.” 974 F.3d at 361.

9
 After trial, Johnson renewed his motion for acquittal. In
a full supporting brief, he raised several specific challenges to
his conviction7 but, as before, he did not bring up materiality.
Both motions thus “raise[d] specific grounds, or arguments”
about the sufficiency of the evidence. Williams, 974 F.3d at
361. And as neither alerted the District Court to any concerns
about materiality, that argument is “unpreserved on appeal.”
Id. We therefore review it for plain error.

3. Plain-Error Review

Using the four-part framework of United States v.
Olano, “we reverse only if (1) there was an ‘error’; (2) the error
was ‘plain’; (3) the error prejudiced or ‘affected substantial
rights’; and (4) not correcting the error would ‘seriously affect
the fairness, integrity or public reputation of judicial
proceedings.’” United States v. Greenspan, 923 F.3d 138, 147
(3d Cir. 2019) (quoting United States v. Olano, 507 U.S. 725,
732, 734–36 (1993)). Under plain-error review, insufficient
evidence requires reversal when upholding the conviction
would “result[] in a fundamental miscarriage of justice.”
United States v. Castro, 704 F.3d 125, 137–38 (3d Cir. 2013)
(quoting United States v. Barel, 939 F.2d 26, 37 (3d Cir.
1991)).

7
For example, Johnson argued that the Government
presented no proof of aiding and abetting, that expert testimony
and business records were improperly admitted, and that the
evidence of his fingerprints on the envelope that contained the
false praecipe was not sufficient to support the false statements
conviction.

10
 Ordinarily, when the government has failed to prove
each essential element of the crime charged, we will reverse
under Olano’s fourth prong. United States v. Jones, 471 F.3d
478, 480 (3d Cir. 2006); see also Castro, 704 F.3d at 141
(explaining that the Government’s “complete failure of proof”
on the falsity element of a false-statements conviction required
reversal, as “the conviction [was] infected with plain error and
constitute[d] a miscarriage of justice”). As we will explain, that
is the case here.

B. The Government Did Not Prove Materiality

Section 1001 proscribes, among other things,
“knowingly and willfully . . . mak[ing] any materially false,
fictitious, or fraudulent statement or representation” in a matter
within the jurisdiction of the federal government. 18 U.S.C. §
1001(a)(2). Establishing a violation requires: “(1) that [the
defendant] made a statement or representation; (2) that the
statement or representation was false; (3) that the false
statement was made knowingly and willfully; (4) that the
statement or representation was material; and (5) that the
statement or representation was made in a matter within the
jurisdiction of the federal government.” United States v.
Moyer, 674 F.3d 192, 213 (3d Cir. 2012). Johnson argues that
the Government’s evidence did not prove materiality. We
agree.

1. Materiality Under 18 U.S.C. § 1001

To be material, a false statement must have “a natural
tendency to influence, or be capable of influencing, the
decision of the decisionmaking body to which it was
addressed.” United States v. Gaudin, 515 U.S. 506, 509 (1995)

11
(cleaned up). We have explained that a statement may be
material “even if no agency actually relied on the statement in
making a decision.” United States v. McBane, 433 F.3d 344,
350 (3d Cir. 2005) (citing In re Cohn, 54 F.3d 1108, 1114 (3d
Cir. 1995)). The issue is not actual reliance, but whether the
false statement had a “natural tendency to influence” or was
“capable of influencing” the governmental decisionmaking
body at issue. Gaudin, 515 U.S. at 509.8 But “[d]eciding
whether a statement is ‘material’” still requires a court to
determine the subsidiary question of “what decision was the
agency trying to make?” Id. at 512.

Put differently, materiality requires evidence showing
that “[the false statements] were ‘of a type capable of
influencing a reasonable decisionmaker,’” Moyer, 674 F.3d at
215 (quoting McBane, 433 F.3d at 351), and that the false
statements could have bearing on an actual decision entrusted
to the decisionmaker, United States v. Litvak, 808 F.3d 160,
173–4 (2d Cir. 2015). That is the key, and the key to the
Government’s case against Johnson is its singular focus at trial

8
A now-canonical example is the very false, but very
unsuccessful statement made by a suspect-turned-defendant to
an FBI agent to put her off the scent. See, e.g., United States v.
Lupton, 620 F.3d 790, 806 (7th Cir. 2010) (observing that “a
frequent aim of false statements . . . is to cast suspicion away
from the declarant”). That the defendant’s statements did not
actually influence the particular decisions of the particular
agent is of no moment, so long as the “misrepresentation[],
under normal circumstances, could cause FBI agents to re-
direct their investigation to another suspect, question their
informant differently or more fully, or perhaps close the
investigation altogether.” McBane, 433 F.3d at 352.

12
on the Judge as the pertinent decisionmaker. We turn next to
that evidence.

2. The Evidence Presented

To prove materiality, the Government relied on the
testimony and actions of the Judge. The Judge, and the Judge
alone, was the pertinent “decisionmaker” in the Government’s
trial theory. This focus on the Judge, however, is ultimately
fatal to the Government’s case because the record contains no
evidence that any decision entrusted to the Judge could have
possibly been influenced by the praecipe. The praecipe filed by
Johnson contained an unsigned exhibit that accused Constand
of failing to report income. But given the subject matter of the
underlying litigation and posture of the case, there is no
evidence that this false statement, even if considered by the
Judge, could have been relevant, much less material, to any
decision.9 And without evidence of some decision entrusted to
the Judge that could have been affected by Johnson’s no doubt

9
The Government did not elicit testimony, for example,
about the need for pretrial rulings on the authenticity or
relevance of the documents filed pursuant to the praecipe or
their admissibility under Rules 403 or 404(b) of the Federal
Rules of Evidence. Nor does the record support an inference
that the Judge would need to make a credibility determination
as to Constand, to which the praecipe arguably could have been
relevant. And without the Government identifying even what
decision could be influenced, “a finder of fact reasonably could
not have inferred from the government’s evidence that” the
praecipe materially influenced that unidentified decision.
United States v. Finn, 375 F.3d 1033, 1040 (10th Cir. 2004).

13
false statement, the Government cannot establish materiality.
Gaudin, 515 U.S. at 512; Litvak, 808 F.3d at 173–4.

The Judge testified about the civil docket generally:
[A] docket is the history of the case. Every action
that has been taken either by the lawyers or by
the court is recorded in the docket, so it’s a
memory of the case. So whenever I have a matter
to be adjudicated or resolved in a particular case,
I look at the docket to see what is the history of
that and where it fits into the developments of
that case.

(App. at 448.) “[E]very time I look at the docket,” the Judge
explained, “I extract information. And then, based on that
information, I take action.” (App. at 448.) The Judge then
testified about the false praecipe in particular. He explained he
first learned about it when his deputy told him there was “a
paper of some sort” or “a paper in the docket” that was not filed
by Troiani. (App. at 451). The Judge asked his staff to prepare
an order striking the false praecipe. They did so, and the Judge
entered the order,10 deleting it from the docket.

This evidence—that the praecipe was false and that it
was deleted—became the basis of the Government’s
materiality argument at summation:

10
The order read: “This filing is fraudulent and was not
filed by the attorney whose purported signature appears on the
document. The matter will be referred to the appropriate
authority for further action.” (App. at 598).

14
 You know, in fact, that it was material, because
it had to be capable of influencing the judicial
branch. And that it was, because [the Judge], in
fact, testified that, yeah. You know, I look at the
docket. I look at the entries on the dockets.
That’s how I make my decisions, based on the
entries on the docket. I consider those things, and
in this case, there was an entry on the docket.
There was a filing. It was a false filing. He took
action in Filing Number 7 on February 2, 2016,
and, in fact, struck it from the record.

So he took action. So not only was it capable of
influencing his decision, but it did. So it was, in
fact, material.

(App. at 703.) That, as we explain, is insufficient.

3. The Evidence Does Not Prove Materiality

Johnson agrees that “[t]he materiality standard does not
require that the statement actually influence the decision-
maker, but rather that it be capable of doing so.” (Opening Br.
at 17 (citing McBane, 433 F.3d at 350).) But, he argues, the
Government did not meet this requirement.

He is correct. As noted above, the only evidence of
materiality presented to the jury was: (1) that the false praecipe
Johnson filed was on the docket, which the Judge consults
generally to make decisions; and (2) that filing of the false
praecipe prompted the Judge to strike it from the docket. But
neither of those unremarkable observations show any decision
entrusted to the Judge—the sole decisionmaker identified at

15
trial—that could have been influenced by the praecipe.
Considered both separately and in total, that evidence cannot
clear even the low sufficiency bar on plain-error review.

i. Docket Entries

Start with dockets and judicial decisions. That the false
praecipe made its way onto the Judge’s docket established that
Johnson made a statement (the filing) to a governmental
decisionmaker (the Judge). And the Judge’s testimony
established that docket filings, in the abstract, might affect his
decisionmaking process. (See App. at 448 (“Well, every time I
look at the docket, I extract information. And then, based on
that information, I take action.”).) But the Government elicited
no testimony about how those filings might affect that
decisionmaking process. And regardless, the fact that the Judge
considers items on the docket in the ordinary course cannot
support a finding that this filing was material beyond a
reasonable doubt, especially because the Government failed to
identify a single decision entrusted to the Judge in this case that
could have been influenced by the praecipe.

In short, the problem with the Government’s proof is
that not every misrepresentation presented to a governmental
decisionmaker is inherently “material.” A statement might be
false, but still incapable of affecting anything, as seen in the
Tenth Circuit’s decision in United States v. Camick, 796 F.3d
1206 (10th Cir. 2015). There, the defendant posed as his
brother and filed a provisional patent application with the U.S.
Patent and Trademark Office. Id. at 1210–11. The government
came calling with an indictment, leading to a conviction for
making a false statement. Id. at 1212–13. The Tenth Circuit
reversed, agreeing there was insufficient evidence of

16
materiality. Camick made a false statement to a governmental
decisionmaker. But the government offered no evidence
explaining how the statement might have influenced the PTO
because Camick filed only a provisional application. Until the
PTO reviewed for patentability, there was no decision to
influence. Id. at 1218–19. Camick’s statements were false, but
still immaterial. So too here, as the Government failed to
identify a decision entrusted to the Judge that the praecipe
could influence.

At other times, information presented to the government
is “relevant,” but ultimately still immaterial—after all,
“‘relevance’ and ‘materiality’ are not synonymous.” United
States v. Rigas, 490 F.3d 208, 234 (2d Cir. 2007). “To be
‘relevant’ means to relate to the issue. To be ‘material’ means
to have probative weight, i.e., reasonably likely to influence
the tribunal in making a determination required to be made.”
Id. (quoting Weinstock v. United States, 231 F.2d 699, 701
(D.C. Cir. 1956)).11 Thus, to prove materiality, the government
cannot simply present evidence that a statement was false and
the information generally within the purview of the
governmental decisionmaker to which it was addressed.
Rather, it bears the burden of adducing testimony or other
evidence explaining the purpose or use of the statement and
some specific way or ways in which the statement might affect

11
Dictionary definitions confirm this distinction.
Compare Relevant, Black’s Law Dictionary (11th ed. 2019)
(defining “relevant” as “[l]ogically connected . . . to”), with
Material, Black’s Law Dictionary (11th ed. 2019) (defining
“material” as, among other things, “[o]f such a nature that
knowledge of the item would affect a person’s decision-
making; significant; essential”).

17
a particular decision of the decisionmaking body. Applying
those principles here, the record contains evidence of no
particular decision made by the Judge that was or could have
been influenced by the praecipe.

Another Tenth Circuit decision, United States v. Finn,
375 F.3d 1033 (10th Cir. 2004), drives home this point. In
Finn, a (now-former) special agent with the U.S. Department
of Housing and Urban Development altered an official expense
report to cover up an auto accident. Id. at 1036–37. A false
statement, said the Tenth Circuit, but not a material one under
§ 1001. True, the testimony presented at trial established that
the altered expense report “fell generally within the
jurisdiction” of HUD. Id. at 1040. Meaning the reports were,
in some sense, “relevant” to the pertinent governmental
decisionmaker. But that was not enough. The government had
failed to explain “the purpose or use of case expenditure forms
from the agency’s perspective,” and how the altered expense
report “could or would have examined the case expenditure
form at issue for the purpose of determining the propriety of
the underlying expense.” Id. Without such a showing, the
government had failed to prove materiality. Id.

So too here. The Government elicited generalized
testimony from the Judge: that he usually looks to the civil
docket in making decisions, and of course, that Johnson stuck
a false praecipe on it. But, as Finn highlights, this established
only relevance, not materiality. The Government did not
present evidence connecting Johnson’s filing to a specific
decision by the Judge that might have been affected by
Johnson’s false statement. And “[t]o form the basis of a jury’s
conclusion, [the Government’s] evidence . . . cannot be purely
theoretical and evidence of such a capability to influence must

18
exceed mere metaphysical possibility.” Litvak, 808 F.3d at
172–73. All of which left materiality unproven.

ii. The Deleted Filing

Nor is materiality shown by the Judge’s decision to
delete the false praecipe from the docket. This was the
Government’s trial theory, as it explained: “[the Judge] struck
[the false praecipe] from the record. So he took action. So not
only was it capable of influencing his decision, but it did. So it
was, in fact, material.” (App. at 703.)

We fail to see the connection. That the praecipe was
struck could be evidence that it was false; in fact, the order
deleting the filing noted specifically that the “filing [wa]s
fraudulent and was not filed by the attorney whose purported
signature appears on the docket.” (App. at 598 (emphases
added)). But “falsity and materiality [are] separate
requirements of misrepresentation.” Kungys v. United States,
485 U.S. 759, 781 (1988); see also Gaudin, 515 U.S. at 509
(citing and quoting from Kungys, 485 U.S. at 770, to define the
materiality element of 18 U.S.C. § 1001). As Judge
Easterbrook once remarked, “[d]eliberately using the wrong
middle initial . . . is not a felony—not unless the right middle
initial could be important.” United States v. Kwiat, 817 F.2d
440, 445 (7th Cir. 1987). The “could be” is missing from the
Government’s evidence. The Government needed proof of an
actual decision that could have been affected by the false
praecipe. See Gaudin, 515 U.S. at 512 (“Deciding whether a
statement is ‘material’ requires the determination of . . . [the]
question[] . . . ‘what decision was the agency trying to
make?’”).

19
 The Judge’s decision merely to delete a false filing is
not the type of decision that, without more, itself gives rise to
materiality, at least on the record here. This conclusion is
informed by the Second Circuit’s decision in United States v.
Litvak, where the defendant was charged and convicted of
making false statements to the Department of the Treasury. 808
F.3d at 166, 170. The government argued his statements were
material because they caused Treasury to “actually refer[] the
matter . . . for investigation.” Id. at 173. The Second Circuit
disagreed. After all, the court explained, “every prosecution for
making a false statement undoubtedly involves ‘decisions’ by
the government to refer for investigation, investigate, and
prosecute the defendant for making the false statement at
issue.” Id. (emphasis added). The government, rather, had to
present evidence of a “decision” that could be influenced
beyond the mere fact that “the [governmental decisionmaker]
had received the misstatements and that its staff[] had
reviewed” and reacted to them. Id. at 174 (citing Rigas, 490
F.3d at 236).

Johnson’s case is even further afield. To conclude
otherwise would be to render the materiality element
meaningless, and the scope of § 1001 absurd. Suppose Johnson
had submitted his false praecipe on December 31, with a
message inarguably incapable of affecting the Judge’s
decisionmaking. “Happy New Year,” perhaps. The filing was
docketed, and after appreciating the well-wishes, the Judge
struck it from the docket. Was this a “decision,” in the ordinary
sense of the word? Of course. But could this be a material
decision supporting a conviction under § 1001? Of course not.
Government decisionmakers perform all sorts of
administrative and ministerial tasks. Sensibly, § 1001 focuses
not on those workday activities, but on “misrepresentation[s]

20
or concealment[s] . . . predictably capable of affecting, i.e.,
ha[ving] a natural tendency to affect, the official decision” of a
government agency. Kungys, 485 U.S. at 771 (emphasis
added); see also United States v. Richardson, 676 F.3d 491,
505 (5th Cir. 2012) (relevant decision in 18 U.S.C. § 1001 case
considering false statement made to judge was “whether to
grant or to deny . . . motion for admission pro hac vice”). The
Government cannot prove materiality simply by presenting
evidence that Johnson’s false filing was received and later
deleted from the docket.

4. The Government’s Unpersuasive Responses

Perhaps sensing the weakness of its trial case, the
Government responds to all this with a new theory: that
Johnson’s false praecipe was “material” not because it was
“capable of influencing [the Judge’s] decision,” (App. at 703),
but because “by misrepresenting that the document was being
filed by a party to the lawsuit, rather than a total stranger to the
litigation, it enabled the document to be filed” by the Clerk in
the first place, (Response Br. at 14 (emphasis added).) That the
Government presented no evidence that Johnson’s filing could
influence a pertinent decision of the Judge in the litigation, it
now argues, is of no moment.

Let us count the problems with this position. For one,
the record makes clear this was not the theory presented at trial.
When Johnson moved in limine to preclude the testimony of
the Judge, the Government asserted quite the opposite, arguing
the testimony was relevant to materiality because the Judge
alone was the governmental decisionmaker:

21
 As the judicial decision maker in the civil case in
which the false statement was filed, [the Judge]
is in the best position to determine whether the
false statement did, or was capable of affecting
judicial action. Within the context of this case,
judicial non-decision making court personnel
are not in a position to make this determination.

(App. at 98 (emphasis added).) By contrast, the Government
explained that staff personnel like the court clerks who accept
and upload filings were not.

The Government’s summation banged this drum loudly,
repeatedly arguing that materiality is measured by its ability to
“affect[] judicial action,” (App. at 98.)12 As the Government
put it: “[the filing] was submitted to the judicial branch,
because it was submitted . . . for [the] Judge[’s] . . .
consideration.” (App. at 703 (emphasis added).) The
Government’s trial theory was not that materiality was
established by docketing the false document, but that it could
(and did) influence an actual judicial decision by the Judge.

As the jury never heard the Government’s new theory,
we are loath to consider it. As the Second Circuit explained in
United States v. Rigas, “[a]lthough a statement’s materiality

12
Examples abound: (a) “it had to be capable of
influencing the judicial branch”; (b) “[the] Judge . . . , in fact,
testified that, yeah. You know, I look at the docket. . . . That’s
how I make my decisions, based on the entries on the docket”;
and (c) “[the Judge] took action in Filing Number 7 on
February 2, 2016, and, in fact, struck it from the record,” (App.
at 703.)

22
may present a question of law resolvable by an appellate court
in some contexts, a criminal defendant is entitled to have a jury
determine his guilt on every element of his alleged crime and
the jury must pass on the materiality of a defendant’s
misrepresentations.” 490 F.3d at 231 n.29 (citations omitted);
see also Chiarella v. United States, 445 U.S. 222, 236 (1980)
(stating that courts “cannot affirm a criminal conviction on the
basis of a theory not presented to the jury”); United States v.
Farrell, 126 F.3d 484, 491 (3d Cir. 1997) (noting that we do
not ordinarily “independently review the record before us and
attempt to assess the evidence relevant to an alternative theory
. . . upon which to uphold a conviction”). “Accordingly, we
will not consider in the first instance arguments regarding
materiality that were not presented to the jury.” Rigas, 490 F.3d
at 231 n.29.

And for another, this new theory is unsupported by the
record. The Government’s argument reduces to two points:
Johnson filed a document that he claimed was made by Troiani,
establishing “falsity”; and “only [Troiani] could make such a
filing,” establishing “materiality.” (Response Br. at 25.) Or, as
it asserts elsewhere, “[t]he misrepresentation of the filer’s
identity was material because by misrepresenting that the
document was being filed by a party to the lawsuit, rather than
a total stranger to the litigation, it enabled the document to be
filed.” (Response Br. at 14.)13

The problem, though, is that the evidence presented to
the jury suggested just the opposite: that almost anything with
a proper case number would be scanned and uploaded to the

13
Arguments all briefed without a citation to any
supporting evidence in the record.

23
civil docket, regardless of the identity of the signatory. One
civil docket clerk, for example, testified that “anyone can drop
off filings for an attorney or anything at the front counter.”
(App. at 392.) No names are recorded, or, it appears, any
signatures checked. Rather, when the Clerk’s Office receives a
paper filing, “[the clerks] scan in the filing and upload it to the
ECF system.” (App. at 398). Another clerk agreed: “if
something comes in hard copy . . . the docket clerks downstairs
will” simply “scan it and upload it to ECF.” (App. at 432). Far
from proving that masquerading as Troiani enabled the false
praecipe to be filed, the record reveals that Johnson’s identity
was immaterial, and that Johnson could have filed the same
documents under his, or any other, name. A point, Johnson
dryly notes, illustrated by this case, where the District Court’s
docket, and our own, are littered with irrelevant filings made
by a nonparty.

Lacking support for both its trial and appellate theories,
the Government seeks refuge in civil procedural rules and case
law as proof of the centrality of the identity of the filer in civil
proceedings.14 But even assuming their relevance, the
Government presented none of this to the jury. See In re
Winship, 397 U.S. 358, 364 (1970) (“Due process commands
that no man shall lose his liberty unless the Government has
borne the burden of . . . convincing the factfinder of his guilt.”)
(citation omitted); Gaudin, 515 U.S. at 522–23 (explaining that

14
In particular, the Government directs us to Rule 11
(which requires every filing to be signed by the filer and state
the filer’s contact information and provides for sanctions for
false representations to the court), and Rule 24 (which sets out
the requirements for intervention) of the Federal Rules of Civil
Procedure.

24
the Constitution requires that a jury, not a judge, decide the
materiality of a false statement). And while, as the Supreme
Court has recently instructed, “an appellate court conducting
plain-error review may consider the entire record—not just the
record from the particular proceeding where the error
occurred,” the new supposed evidence the Government points
us to was not a part of either. Greer v. United States, 141 S. Ct.
2090, 2098 (2021). The hour is too late for these theories to
save the Government’s case.

C. Johnson Prevails on Plain-Error Review

The Government’s lack of evidentiary support as to
“materiality” established, we turn last to the Olano factors, and
conclude that relief is warranted. The first three are easily met,
and, “[a]lthough Rule 52(b) is permissive, not mandatory,” the
Supreme Court has recently reminded us “that courts should
correct a forfeited plain error that affects substantial rights,”
where it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1906 (2018) (cleaned up). Generally,
the government’s failure to prove an essential element of an
offense is a miscarriage of justice—one sufficient to warrant
reversal of the conviction for plain error. See, e.g., United
States v. Morton, 993 F.3d 198, 206 (3d Cir. 2021); Castro,
704 F.3d at 138; United States v. Retos, 25 F.3d 1220, 1231–
32 (3d Cir. 1994); United States v. Xavier, 2 F.3d 1281, 1287
(3d Cir. 1993). Nothing here encourages us to depart from this
general rule. To permit Johnson’s conviction to stand, as we
put it recently, “would be to endorse conviction merely for
being bad—an outcome abhorrent to the tenet that, in our legal
system, we convict people only of specific crimes.” United

25
States v. Harra, 985 F.3d 196, 211 (3d Cir. 2021) (internal
quotation marks omitted). We will not do so.

III. CONCLUSION

Let there be no doubt on two points. First, Johnson’s
conduct was not just a waste of public time and resources. It
disrupted the administration of justice, interfered with the
orderly work of the federal courts, and flouted the respect due
to judges and attorneys sworn to uphold the law. Much more
than a warning about our internet-addicted culture, Johnson’s
actions are a reminder that respect for the rules that support the
law is inseparable from the rule of law itself.

But a second follows: for bad acts to constitute crimes,
at trial the Government must prove each element beyond a
reasonable doubt. This is because the Government, through the
United States Attorney, “is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that
justice shall be done.” Berger v. United States, 295 U.S. 78, 88
(1935). That is why the right to the jury trial “is justly esteemed
one of the principal excellencies of our constitution.”
Thompson v. Utah, 170 U.S. 343, 350 (1898) (quoting Juries,
3 Matthew Bacon, A New Abridgment of the Law (1736)). A
“great privilege,” brought to the United States as a “birth-right
and inheritance . . . against the approaches of arbitrary power”
demands proof of each element specified by the people,
through Congress, constituting a crime sufficient to forfeit
liberty. 3 J. Story, Commentaries on the Constitution of the
United States § 1773, at 652–53 (1833).

26
 That ancient guarantee was not honored. While
Johnson’s actions were malicious, the Government failed to
prove they were material to the only decisionmaker identified
at trial, the Judge. And Congress requires both falsity and
materiality to impose liability under 18 U.S.C. § 1001. As a
result, we will reverse Johnson’s false statement (Count 1) and
aggravated identity theft (Count 2) convictions, remanding for
the entry of a judgment of acquittal.

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