United States v. Fern

United States Court of Appeals,

Eleventh Circuit.

Nos. 95-4099, 95-4596.

UNITED STATES of America, Plaintiff-Appellee,

v.

Daniel J. FERN, Defendant-Appellant.

July 24, 1997.

Appeals from the United States District Court for the Southern District of Florida. (No. 94-322-CR-
JM), Jacob Mishler, Judge.

Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL*, Senior Circuit Judge.

HATCHETT, Chief Judge:

In this consolidated appeal, we affirm the convictions of Daniel Fern for mail fraud,

attempted witness tampering and violations of the Clean Air Act.

FACTS

The events leading up to Fern's indictment and eventual convictions began on October 3,

1993. Early that morning, a fire partially damaged the Monte Carlo Oceanfront Resort Hotel, a

thirteen-story building on Miami Beach. The Monte Carlo was insured for up to two million dollars

under a fire loss policy the Lexington Insurance Company issued. Under the fire loss policy,

Lexington agreed to pay for asbestos removal and contamination at the Monte Carlo, but only if the
asbestos-related contamination occurred as a result of a fire.

Shortly after the fire, Waquar Ahmed Khan, the president of the company which owned the

Monte Carlo, contracted with Fern to determine whether the Monte Carlo's conference room and

suites were contaminated with asbestos as a result of the fire. At the time, Fern owned an asbestos

testing and consulting firm known as Air Environmental Research Services (AER). Fern then

orchestrated a fraudulent scheme to (1) convince Lexington that the Monte Carlo was contaminated

thoroughly with asbestos; and (2) profit from a bogus asbestos abatement project at the Monte

*
Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for the Second Circuit, sitting by
designation.
Carlo.

The scheme unfolded, in part, as follows. Fern directed the Monte Carlo project manager,

Jerry Joyner, to take a piece of "Mag Block"—a material containing chalky, crushable

asbestos—from a crawl space at the Monte Carlo. Fern then directed Jerry Joyner to take some

"hot" air samples from the Monte Carlo using the Mag Block to spike the samples. (In total, Jerry

Joyner spiked over twenty samples, often in the presence of Fern, Fern's wife or other AER

employees.) After Jerry Joyner spiked the samples, he labeled some of them—at Fern's request—as

if they came from the Monte Carlo's pipe-chases. Fern made this request in order to support a claim

of asbestos contamination within the entire Monte Carlo resort.

After receiving test results from the spiked air samples, Fern's company, AER, proceeded

to prepare an emergency action plan detailing a proposed asbestos abatement project for the Monte

Carlo. Neither Fern nor AER was licensed to conduct asbestos abatement or removal work.

Consequently, Fern needed to list the name of an authorized asbestos abatement company on the

asbestos abatement project paperwork required under 42 U.S.C. § 7413, a provision of the Clean Air

Act.1

On October 13, 1993, Fern, or one of his employees, filed the first of three Ten-Day Notices

completed during the course of the proposed Monte Carlo asbestos abatement project. This Ten-Day

Notice—as well as subsequent notices filed on December 14, 1993, and April 4, 1994—contained
false responses indicating that a company named Action Systems Unlimited, Inc., was responsible

for the asbestos abatement project at the Monte Carlo, and that Judy Joyner—Jerry Joyner's

sister-in-law and the president of Action Systems—was the on-site supervisor.2 The Ten-Day Notice
also contained Judy Joyner's forged signature on the notice lines indicating that the information on

the notice was correct and that an appropriately trained individual would be on-site at the Monte

1
Specifically, Fern needed to list the name of an authorized company on government-required
"Notification of Demolition and Renovation" forms, commonly known as "Ten-Day Notices."
2
The third notice is slightly different from the first two notices and is captioned "Notice of
Asbestos Removal Project." While the first two notices are two-page forms, the third notice is a
one-page form. The differences between the forms do not affect our analysis.
Carlo during the asbestos abatement project.3 The first and third Ten-Day Notices also contain

references to Judy Joyner's Florida asbestos removal license number.

Neither Judy Joyner nor Action Systems ever did any work at the Monte Carlo. Moreover,

Judy Joyner testified at trial that she never authorized anyone to sign her name, use Action Systems's

name or use her asbestos removal license number on a Ten-Day Notice for the Monte Carlo asbestos

abatement project. Nevertheless, Fern instructed Jerry Joyner to tell anyone who inquired that he

worked for Action Systems and that Action Systems was the actual asbestos removal contractor at

the Monte Carlo.

At trial, two officials with the Metropolitan Dade County Department of Environmental

Resources Management (DERM) testified about the significance of the Ten-Day Notices.

According to Hugh Wong, chief of DERM's Air Pollution Control section, Ten-Day Notices are

federally required notices that provide information on sites so that regulators can make sure that

work is going to be done properly. Wong testified that he "absolutely" relied on the information

contained in Ten-Day Notices and that it is important for the information to be accurate. Wong also

indicated that DERM uses the information in Ten-Day Notices to determine if the contractor is

certified or not, and stated that "if we have not inspected that contractor's work before, we try and

target the inspections [to that contractor]." Ray Gordon, a DERM asbestos supervisor, testified that

before employees in his office input information from Ten-Day Notices into their computers, they

check to make sure that the contractor has a license number noted on the Notice and that the

contractor is familiar to them. According to Gordon, the only way DERM officials can know if the

individual removing asbestos is properly trained is "if they have the appropriate license."

In addition to submitting false Ten-Day Notices, Fern, and/or AER, also filed documents

representing that the contents of the Monte Carlo (e.g., room furnishings and equipment) had to be

destroyed because of asbestos contamination. In actuality, Fern gave away, sold or kept most of the

Monte Carlo's furnishings and equipment.

3
The text under Judy Joyner's forged signature indicated that the signature above belonged to
the "Owner/Operator"—an apparent reference to the facility owner or renovation project
supervisor.
 Ultimately, Fern submitted a bill for over five hundred thousand dollars to the Monte Carlo

for the cost of the bogus asbestos abatement project. The bill was converted into a proof-of-loss and

submitted to Lexington via the mail. At trial, Daniel Corbeil, a former co-owner of Action Systems,

testified that Fern bragged to him about how he fooled Lexington with spiked samples and with the

Action Systems license.

In 1994, the Environmental Protection Agency (EPA) started investigating Fern's work at

the Monte Carlo. Jerry Joyner and other AER employees cooperated with the EPA. Jerry Joyner

played a critical role in the investigation; he taped his conversations with Fern. During those

conversations, Fern offered Jerry Joyner ten thousand dollars to mislead investigators and told him

to lie to the grand jury.

PROCEDURAL HISTORY

A grand jury indicted Fern on June 16, 1994, charging him with one count of witness

intimidation. The government obtained a superseding indictment from the grand jury on August 12,

1994, charging Fern with eight other counts: three counts of making false statements, four counts

of mail fraud and one count of witness tampering.

Fern's first trial began on November 28, 1994. Prior to the testimony of the government's

first witness, Fern moved to dismiss the three false statement counts of the indictment for failure to

allege essential elements of the charged crime. Fern argued that the indictment was insufficient

because it did not allege that the statements were made willfully or that the statements were material.

Fern also argued that the indictment did not inform him of the specific statements which were

allegedly false. The district court denied Fern's motion and allowed the government to proceed with

its presentation of evidence on all counts of the indictment.4

On November 28, 1994, the government called its first witness, Bureau of Alcohol, Tobacco

4
In her response to Fern's motion to dismiss, the prosecutor specifically indicated that the
false statements on the Ten-Day Notices were as follows: (1) statements indicating that Action
Systems was the contractor doing the abatement project; (2) statements indicating that Judy
Joyner was the project's contact person; and (3) statements indicating that Judy Joyner signed
the Ten-Day Notices. Fern did not renew his motion to dismiss the indictment prior to his
second trial.
and Firearms (ATF) Special Agent Nelson Vasquez. Two days after Vasquez testified, on December

1, 1994, the prosecutor received a sworn statement dated December 1, 1994, from ATF Internal

Affairs. The statement revealed that Vasquez misused his government credit card and was under

investigation for theft of government property. The next day, Friday, December 2, 1994, the

prosecutor produced a Brady disclosure regarding the Vasquez misconduct. The following trial day,

Monday, December 5, 1994, Fern sought to recall Vasquez to the stand for further examination. The

prosecutor informed Fern that Vasquez would invoke the Fifth Amendment and decline to answer

defense questions. After verifying this, Fern asked for a mistrial, which the district court granted.

Fern subsequently moved to dismiss the case based on the Double Jeopardy Clause. Fern

based his motion on the fact that Thomas Mulvihill, an Assistant United States Attorney (AUSA)

in the Public Corruption Section, knew about the Vasquez investigation as early as November 15,

1994, but never shared his knowledge with the prosecutor in Fern's case.

The district court conducted an evidentiary hearing on the mistrial motion during which the

district court questioned the prosecutor and AUSA Mulvihill, and heard arguments from the

prosecutor and Fern regarding applicable case law. The district court also allowed Fern to question

Mulvihill. During questioning, Mulvihill testified that he learned about allegations against Vasquez

as a result of a conversation with an ATF Internal Affairs agent. During the conversation, the ATF

agent told Mulvihill that it was possible that a "totally innocent explanation" existed for Vasquez's

actions. Mulvihill also indicated that he and the ATF agent agreed that the matter should initially

proceed through the ATF's administrative process. Mulvihill then stated that he did not even hear

about the Vasquez matter again until after Fern's trial commenced. Mulvihill further testified that

he was unaware that Vasquez was the case agent in any pending cases. Finally, Mulvihill stated that

he was unaware of any policy requiring him to notify other attorneys about allegations against ATF

agents that his office was not pursuing.

After considering the evidence and arguments, the district court orally denied Fern's motion.

The district court later entered a written order denying Fern's mistrial motion and Fern's ore tenus

motion to stay proceedings pending an appeal on the alleged double jeopardy violation. The district
court then scheduled a second trial for January 19, 1995. Fern appealed the district court's order,

and that appeal is consolidated here.

In Fern's second trial, Vasquez did not testify, and the government dropped the witness

intimidation count. During the course of the second trial, Fern presented expert testimony that the

Monte Carlo could have been contaminated from the fire; witness testimony that Jerry Joyner

spiked the samples; and witness testimony that Curry Joyner, Judy Joyner's ex-husband, signed Judy

Joyner's signature on the Ten-Day Notices with her authorization. Fern also sought to

cross-examine witnesses about, or introduce polygraph evidence relating to, Jerry Joyner, but was

allowed to do so only to a limited extent.5

The jury in Fern's second trial convicted him on February 7, 1995. Fern received a sentence

of fifty-seven months of imprisonment, plus a subsequent three-year term of supervised release and

a four hundred dollar special assessment.

ISSUES

Fern raises six issues on appeal. We find each unpersuasive and address only three: (1)

whether the Double Jeopardy Clause barred Fern's retrial after Fern requested a mistrial; (2)

whether the superseding indictment contained sufficient information to sustain the three false

statement counts against Fern; and (3) whether the district court's failure to submit the issue of

materiality to the jury was harmless error.6
CONTENTIONS

Fern contends that the Double Jeopardy Clause barred his retrial because the government's

conduct left him with no choice but to ask for a mistrial. Fern also contends that the false statement

counts of the indictment against him were insufficient because they failed to include necessary

5
Fern first tried to cross-examine EPA agent John Lara, after Lara indicated on direct
examination that he corroborated Jerry Joyner's testimony with a polygraph. Fern later tried to
cross-examine Jerry Joyner regarding the polygraph results. In both instances, the district court
strictly limited Fern's examination, based, in part, on the government's representation that Jerry
Joyner failed only a part of the polygraph.
6
Fern's other appeal issues concern various evidentiary rulings and the jury instruction in this
case. We affirm on these issues pursuant to Eleventh Circuit Rule 36-1.
allegations of willfulness and materiality, and failed to identify the particular false material

statements Fern made. Finally, Fern contends that the failure to submit the issue of materiality to

the jury was "incurably prejudicial," i.e., not harmless error, because a reasonable juror could have

concluded that the alleged false statements were not material because environmental officials did

not rely on the statements in their decisionmaking process.

The government contends that the Double Jeopardy Clause posed no barrier to Fern's retrial

because the prosecution did not "goad" Fern into requesting a mistrial. The government also

contends that the false statement counts of the indictment contained sufficient allegations to apprise

Fern of the charges against him and to warrant an inference that the grand jury found probable cause

to support all the essential elements of the charges against Fern. Finally, the government contends

that materiality was not a jury issue in this case. Alternatively, the government contends that the

failure to submit the issue of materiality to the jury did not constitute reversible error because no

reasonable juror could have found that the alleged false statements in this case were not material.

DISCUSSION

A. Double Jeopardy

Ordinarily, the Double Jeopardy Clause does not bar retrial after the grant of a mistrial upon

the defendant's motion. United States v. Torkington, 874 F.2d 1441, 1444 (11th Cir.1989). If the

prosecution's actions compelled the defendant to move for a mistrial, however, the Double Jeopardy

Clause does bar retrial. 874 F.2d at 1444. As we observed in Torkington, a defendant is compelled

to move for a mistrial if the prosecution intentionally goaded the defendant into moving for a

mistrial. 874 F.2d at 1444.7 The inquiry into the prosecution's intent is, for the most part, a matter

to be inferred from objective facts and circumstances. See Oregon v. Kennedy, 456 U.S. 667, 679-

80, 102 S.Ct. 2083, 2091-92, 72 L.Ed.2d 416 (1982) (Powell, J., concurring) ("Because "subjective'

7
Webster's Third New International Dictionary defines "goad," in part, as follows: "to drive,
incite, or rouse." When used as a noun, Webster's indicates that a goad is "something that urges
or stimulates like a goad: SPUR, STIMULUS." Webster's Third New International Dictionary
972 (3d ed.1976). In the past, we have suggested that goading may be found where the conduct
of the government in bringing about the original mistrial is due to "gross negligence or
intentional misconduct." United States v. Serra, 882 F.2d 471, 473 (11th Cir.1989).
intent often may be unknowable, I emphasize that a court—in considering a double jeopardy

motion—should rely primarily upon the objective facts and circumstances of the particular case.").

We review the district court's factual findings for clear error and we conduct a de novo review of the

district court's application of the law to the facts. Torkington, 874 F.2d at 1445.

In this case, the district court did an exceptional job of investigating the objective facts and

circumstances leading up to the prosecution's disclosure of Special Agent Vasquez's misconduct.

The district court conducted an evidentiary hearing regarding the prosecutor's knowledge and

conduct, and the knowledge and conduct of the other relevant government actor, AUSA Mulvihill.

In so doing, the district court properly recognized that government prosecutors do not operate in a

vacuum, and that under some circumstances the actions of more than the specific prosecutor

assigned to a case may be relevant to the "goading" inquiry. See United States v. Dinitz, 424 U.S.

600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976) (Double Jeopardy Clause "protect[s] a

defendant against governmental actions intended to provoke mistrial requests") (emphasis added).

After questioning the relevant parties, and allowing Fern to ask additional questions, the district

court determined that the investigation into Vasquez's conduct was preliminary at the time Mulvihill

heard of it; the relevant parties did not know of any actual impropriety until December 1, 1994; and

the relevant parties promptly informed the defense of Vasquez's impropriety. After independently

reviewing the record we find no error in the district court's factual findings.

We also discern no error in the district court's legal conclusions to the effect that the relevant

events revealed no bad faith, prosecutorial misconduct or attempt to subvert the protections of the

Double Jeopardy Clause. Fern may very well have needed to move for a mistrial in this case, but

this need did not arise because of "goading" on the government's part.

B. Sufficiency of the Indictment

"A criminal conviction will not be upheld if the indictment upon which it is based does not

set forth the essential elements of the offense." United States v. Gayle, 967 F.2d 483, 485 (11th

Cir.1992) (en banc ), cert. denied, 507 U.S. 967, 113 S.Ct. 1402, 122 L.Ed.2d 775 (1993). This rule

serves two functions. First, it puts the defendant on notice of "the nature and cause of the accusation
as required by the Sixth Amendment of the Constitution. Second, it fulfills the Fifth Amendment's

indictment requirement, ensuring that a grand jury only return an indictment when it finds probable

cause to support all the necessary elements of the crime." Gayle, 967 F.2d at 485; United States v.

Steele, 105 F.3d 603, 606 n. 3 (11th. Cir.1997). The law does not, however, require that an

indictment track the statutory language. United States v. Stefan, 784 F.2d 1093, 1101 (11th Cir.),

cert. denied, 479 U.S. 855, 107 S.Ct. 193, 93 L.Ed.2d 125, and cert. denied, 479 U.S. 1009, 107

S.Ct. 650, 93 L.Ed.2d 706 (1986). If an indictment specifically refers to the statute on which the

charge was based, the reference to the statutory language adequately informs the defendant of the

charge. Stefan, 784 F.2d at 1101-02. Similarly, if the facts alleged in the indictment warrant an

inference that the jury found probable cause to support all the necessary elements of the charge, the

indictment is not fatally deficient on Fifth Amendment grounds. Cf. United States v. McGough, 510

F.2d 598, 602 (5th Cir.1975) (if facts alleged warrant inference that false statements are material,

an indictment is sufficient).8

Counts I-III of the superseding indictment charged that Fern, on three separate dates, "did

knowingly make false statements on the Notification of Demolition and Renovation form filed, and

required to be maintained, pursuant to the Clean Air Act ... in violation of Title 42, United States

Code, Section 7413(c)(2)."9 Fern contends that these counts of the indictment are insufficient

8
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc ), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
9
Title 42 U.S.C. § 7413(c)(2) provides that:

Any person who knowingly -

(A) makes any false material statement, representation, or certification in,
or omits material information from, or knowingly alters, conceals, or fails
to file or maintain any notice, application, record, report, plan, or other
document required pursuant to this chapter to be either filed or maintained
(whether with respect to the requirements imposed by the Administrator or
by a State);

(B) fails to notify or report as required under this chapter; or

(C) falsifies, tampers with, renders inaccurate, or fails to install any
monitoring device or method required to be maintained or followed under
because they (1) fail to state expressly that "willfulness" and "materiality" are elements of a Clean

Air Act false statement offense, and (2) fail to identify adequately the particular false statements

Fern made.

Fern's contention regarding the failure to allege "willfulness" is meritless because

"willfulness" is not an essential element of an offense under the relevant provision of section

7413(c)(2). Section 7413(c)(2)(A) makes it a crime for any person to "knowingly" make a false

material statement in a document required to be filed or maintained. 42 U.S.C. § 7413(c)(2)(A).

The plain language of the statute does not require a showing of willfulness, and we decline Fern's

invitation to read willfulness into the statute via the language of section 7413(h) of the Clean Air

Act.10

Fern's contention regarding the indictment's failure to allege "materiality" is more

substantial, but still unpersuasive. Fern contends correctly that the indictment does not mention the

word "material," and that a false statement must be a "material" statement to constitute a violation

under the Clean Air Act. See 42 U.S.C. § 7413(c)(2)(A) (violation requires a "false material

statement, representation, or certification"). The indictment does, however, specifically reference

"Title 42, United States Code, Section 7413(c)(2)." Fern contends that this reference is

insufficiently specific to put him on notice that he allegedly violated section 7413(c)(2)(A). We find

the omission of a reference to subsection (A) harmless.
The indictment charged Fern with making a "false statement." The only provision within

this chapter

shall, upon conviction, be punished by a fine pursuant to Title 18, or by
imprisonment for not more than 2 years, or both. If a conviction of any person
under this paragraph is for a violation committed after a first conviction of such
person under this paragraph, the maximum punishment shall be doubled with
respect to both the fine and imprisonment.

42 U.S.C. § 7413(c)(2).
10
Section 7413(h) provides in part that certain lower-level employees will not be held liable
for some Clean Air Act violations unless their actions are "knowing and willful." 42 U.S.C. §
7413(h). Even if section 7413(h) applied in this case—and we do not hold that it does—Fern
would not be covered under it because, at the relevant time, he was the president of AER, not a
lower-level employee.
section 7413(c)(2) that could even potentially concern false statements is subsection (A) which

begins with the following words: "makes any false material statement." 42 U.S.C. § 7413(c)(2)(A)

(emphasis added). Subsection (B) of section 7413(c)(2) refers to failures to notify or report under

the Clean Air Act, and subsection (C) refers to prohibited acts with "any monitoring device or

method." 42 U.S.C. § 7413(c)(2)(B), (C). Because Fern could not read section 7413(c)(2) and

conclude that he was charged with a violation of anything but section 7413(c)(2)(A), we reject his

claim that the indictment failed to notify him of the charges that he had to defend. See Stefan, 784

F.2d at 1102 ("practical, rather than technical considerations govern the validity of the

indictment").11

We also find unpersuasive Fern's related contention that the indictment fails to identify the

false statements with sufficient particularity for Fifth Amendment purposes. In our view, Fern's

contention is based on a false premise—that "the indictment merely referenced three Ten-Day

Notices, without identifying what statements in the notices were false."

Paragraph Four of the indictment specifically alleges that AER performed the asbestos

abatement work at the Monte Carlo. Paragraph Seven of the indictment indicates that an owner or

operator must notify the EPA or the appropriate local agency before conducting certain types of

asbestos abatement in a building. Paragraph Nine of the indictment alleges that Fern was the

"operator" of an asbestos abatement project taking place at the Monte Carlo. The three Ten-Day
Notices referenced in the indictment all indicate that Action Systems—not AER—performed the

asbestos abatement project at the Monte Carlo under the on-site supervision of "Owner/Operator"

Judy Joyner—not under the supervision of "operator" Fern.

It is an entirely sensible inference that the false statements referred to in the indictment

related to the specific allegations described earlier in the indictment, e.g., whether "operator" Fern

11
We also note that the government specifically apprised Fern of the specific false statements
during a hearing prior to his first trial. Fern subsequently failed to renew his motion to
dismiss—or to request a bill of particulars—prior to his retrial.
notified the appropriate agency of AER's asbestos abatement project at the Monte Carlo.12 Since the

indictment also referenced the relevant statutory section, it is also a reasonable inference that the

grand jury found that any false statements regarding the identity of the entity performing the Monte

Carlo asbestos abatement project were "material." Accordingly, we are satisfied that Counts I-III

of the superseding indictment comport with the Fifth Amendment's dictates.

C. Gaudin Error

In United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the

Supreme Court held that the materiality of a false statement for the purposes of a conviction under

18 U.S.C. § 1001 is a jury question and that a district court's failure to submit the question of

materiality to the jury constitutes reversible error. The Court's holding in Gaudin applies

retroactively to cases on direct appeal at the time Gaudin was decided. See Griffith v. Kentucky, 479

U.S. 314, 328, 107 S.Ct. 708, 715, 93 L.Ed.2d 649 (1987). When no assertion of error is made

during the trial, and error arises only because of a later Supreme Court decision, we review for plain

error. United States v. Calhoon, 97 F.3d 518, 529 (11th Cir.1996). Under plain error review,

reversal for unobjected-to error is permitted where the error is both (1) plain and (2) affects

substantial rights. Calhoon, 97 F.3d at 529-30; United States v. Olano, 507 U.S. 725, 732, 113 S.Ct.

1770, 1776, 123 L.Ed.2d 508 (1993). We have held that an improper instruction does not affect

substantial rights when no reasonable argument exists that the statements at issue were not material.

Calhoon, 97 F.3d at 530. Our cases also indicate that the burden of showing that an unobjected-to

Gaudin error constitutes plain error rests with the defendant. United States v. Kramer, 73 F.3d 1067,

1074 n. 17 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996).

When a proper objection to a Gaudin error is lodged at trial the analysis differs, but, in our

estimation, only with respect to the burden of persuasion. This is so because a Gaudin error does

not fall within that limited class of errors known as "structural errors," e.g., errors "affecting the

12
Any contrary inferences would require us to assume that the grand jury included the
above-described references in paragraphs four, seven and nine of the indictment, as mere
window dressing. We decline to view these references in such a fashion. We also note the
tension between Fern's suggestion that the absence of some explicit language in the indictment is
fatal, while the presence of other explicit language is of no moment.
framework within which the trial proceeds, rather than simply an error in the trial process itself."

Johnson v. United States, --- U.S.----, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Arizona v.

Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991)). To the contrary,

a Gaudin error is more correctly viewed as analogous to improperly instructing the jury on an

element of the offense, an error which is subject to harmless error analysis. Cf. Johnson, --- U.S.

----, 117 S.Ct. at 1550 (stating that "it is by no means clear" that a Gaudin error fits within the

limited class of cases subject to structural error analysis).13 The appropriate review under the

harmless error review standard mirrors the plain error review standard regarding prejudice to

substantial rights, except that the burden of persuasion shifts: the government must show the

absence of prejudice to the defendant's substantial rights. Cf. Olano, 507 U.S. at 734-35, 113 S.Ct.

at 1777-78 (plain error analysis into prejudice is the same kind of inquiry as employed in harmless

error analysis, with one important difference: "it is the defendant rather than the Government who

bears the burden of persuasion with respect to prejudice").

In this case, the government contends that the holding of Gaudin does not extend to false

statements under section 7413(c)(2). As a result, the government contends, the district court did not

err when it failed, over Fern's objection, to submit the issue of materiality to the jury. We decline

to reach this issue because we conclude that even if Gaudin does apply, the government has carried

its burden of showing the absence of prejudice to Fern arising from the claimed Gaudin error.

Here, the materiality issue turns on whether the identified false statements were capable of

influencing DERM officials' exercise of their regulatory oversight responsibilities. See United

States v. Dennis, 786 F.2d 1029, 1041 n. 15 (11th Cir.1986) (test for materiality is "whether the false

testimony was capable of influencing the tribunal on the issue before it"). The trial testimony of

DERM officials Wong and Gordon leaves no doubt that the false statements in this case were

material. These officials testified that they "absolutely" relied on the information contained in Ten-

Day Notices and that the "only" way DERM officials can know if the individual removing asbestos

13
In his reply brief, Fern effectively conceded that harmless error analysis applies in this case
when he indicated that "[t]he court's erroneous jury instruction is not ... harmless on this record."
is properly trained is if they have the appropriate license. This testimony was uncontroverted. No

reasonable juror could conclude, based on this evidence, that the repeated submissions of Ten-Day

Notices which falsely indicated that Action Systems performed the asbestos abatement work, and

that falsely used Judy Joyner's asbestos removal license number, were not material. Accordingly,

we conclude that the district court's failure to submit the issue of materiality to the jury did not

prejudice Fern and was thus harmless error.

CONCLUSION

For the foregoing reasons, we affirm Daniel Fern's convictions.

AFFIRMED.