concurring:
I agree with the majority opinion that, having failed to object to the judge’s materiality determination at any stage of his criminal prosecution and having failed to establish in the habeas proceeding that he was prejudiced by the determination, Dale would be procedurally barred from raising the Gaudin error—if he were otherwise entitled to its benefit. He is not. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a plurality of the United States Supreme Court declared: “Unless they fall *1058within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U.S. at 310, 109 S.Ct. at 1075. The plurality set out two exceptions to the general rule: (1) “a new rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,’” id. at 311, 109 S.Ct. at 1075 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1171, 1180, 28 L.Ed.2d 388 (1971) (Harlan, J., concurring in judgments in part and dissenting in part)); and (2) “a new rule should be applied retroactively if it requires the observance of ‘those procedures that ... are implicit in the concept of ordered liberty,’ ” id. (quoting Mackey, 401 U.S. at 693, 91 S.Ct. at 1180) (internal quotation omitted). A majority of the Court has since repeatedly applied both the Teague plurality’s retroactivity rule and its two exceptions. See, e.g., Gilmore v. Taylor, 508 U.S. 333, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993); Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); Penny v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). I believe that Gaudin established the kind of new rule of constitutional procedure governed by Teague and that it fits within neither of the two Teague exceptions. I therefore conclude, as did the district court, that Gaudin’s holding does not apply retroactively to Dale’s convictions.
As a threshold matter, to come under Teague's retroactivity regime, an intervening court decision must produce “a new constitutional rule of criminal procedure.” That the Gaudin rule, which derives from a defendant’s Fifth and Sixth Amendment rights, is a constitutional one cannot be doubted. The rule is plainly also one of procedure—it simply dictates who must decide the statutory element of materiality—it tells us nothing of what constitutes a substantive violation of the statute. Cf. United States v. McKie, 73 F.3d 1149, 1151 (D.C.Cir.1996) (court’s interpretation of “substantive terms” of criminal statute is not “procedural” rule subject to Teague). Moreover, I believe the Gaudin rule was also a “new” rule when formulated.
The Supreme Court acknowledged in Teague that “[i]t is admittedly often difficult to determine when a case announces a new rule” and it would “not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes.” Teague, 489 U.S. at 301, 109 S.Ct. at 1070; see also Mackey, 401 U.S. at 667, 693, 91 S.Ct. at 1171, 1180 (1971) (Harlan, J., concurring in judgment in part and dissenting in part) (“[I]n Desist [v. United States, 394 U.S. 244, 263, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969) ] I went to some lengths to point out the inevitable difficulties that will arise in attempting ‘to determine whether a particular decision has really announced a “new” rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law.’ I remain fully cognizant of these problems____”). The Teague Court nevertheless offered guidance for deciding which rules are “new” ones: “In general, ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. at 1070 (emphasis original). The Gaudin rule comes easily -within the latter characterization. Not only was Gaudin’s holding “not dictated by precedent existing at the time,” it was contrary to both Supreme Court precedent and that of a large majority of the circuit courts of appeal.
As the Supreme Court noted, the holding in Gaudin was inconsistent with its earlier decision in Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929). In Sinclair the Court had rejected a Sixth Amendment challenge to a trial court’s determination of “pertinency” in a criminal contempt proceeding for violation of 2 U.S.C. § 192, which criminalized refusal by a Congressional witness “to answer any question pertinent to the question under inquiry.”1 *1059While Sinclair was “not controlling in the strictest sense, since it involved the assertion of a Sixth Amendment right to have the jury determine, not ‘materiality’ under § 1001, but rather ‘pertinency’ under [2 U.S.C. § 192],” the Court nonetheless acknowledged that it “[could not] hold for respondent ... while still adhering to the reasoning and the holding of that case,” 515 U.S. at 519-20, 115 S.Ct. at 2318-19. The Gaudin Court was therefore required to “repudiate” much of the “reasoning” in Sinclair. Id. at 520, 115 S.Ct. at 2318-19. At the same time the Court also repudiated the holdings of eleven circuit courts of appeal, which had held that materiality was a question of law to be decided by the judge. See 515 U.S. at 527, 115 S.Ct. at 2322 (Rehnquist, J., concurring) (“Before today, every Court of Appeals that has considered the issue, except for the Ninth Circuit, has held that the question of materiality is one of law.”) (citing United States v. Gaudin, 28 F.3d 943, 955 (9th Cir.1994) (Kozinski, J., dissenting) (listing opinions from eleven circuits so holding)).2 Given the overwhelming, contrary precedent the Gaudin Court overruled, I must conclude that its opinion established a “new” rule which cannot be applied retroactively unless it comes within one of the two exceptions recognized in Teague and its progeny3—and the Gaudin rule does not.
Conceding that the first exception does not apply, Dale asserts that the Gaudin rule comes within the second exception as one “requir[ing] the observance of ‘those procedures that ... are implicit in the concept of ordered liberty.’ ” 489 U.S. at 311, 109 S.Ct. at 1076 (quoting Mackey, 401 U.S. at 693, 91 S.Ct. at 1180) (internal quotation omitted). In this he errs. The second Teague exception is reserved “for ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 1263-64, 108 L.Ed.2d 415 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075-76). The Supreme Court has “usually cited Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), holding that a defendant has the right to be represented by counsel in all criminal trials for serious offenses, to illustrate the type of rule coming within the exception.” Id. The Gaudin rule is not of the same type. It “has none of the primacy and centrality of the rule adopted in Gideon or other rules which may be thought to be within the exception” and, as the majority opinion demonstrates, its breach “would not seriously diminish the likelihood of obtaining an accurate determination.” Butler v. McKellar, 494 U.S. 407, 416, 110 S.Ct. 1212, 1218, 108 L.Ed.2d 347 (1990). Goodin’s holding therefore is not within the “small core of rules” that implicate the second Teague exception. See Graham v. Collins, 506 U.S. 461, 477, 113 S.Ct. 892, 902-03, 122 L.Ed.2d 260 (1993) (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075-76).
For the foregoing reasons I believe that the rule announced in Goodin should not be *1060given retroactive effect. Accord Bilzerian v. United States, 127 F.3d 237 241 (2d Cir.1997); United States v. Swindall, 107 F.3d 831, 836 (11th Cir.1997). I would therefore affirm the district court on that basis.
. The statute provided in full:
“Every person who having been summoned as a witness by the authority of either house of *1059Congress, to give testimony or to produce papers upon any matter under inquiry before either house, or any committee of either house of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100, and imprisonment in a common jail for not less than one month nor more than twelve months."
279 U.S. at 284-85, 49 S.Ct. at 269 (quoting 2 U.S.C. § 192).
. The Ninth Circuit dissent cited the following decisions: United States v. Corsino, 812 F.2d 26, 31 n. 3 (1st Cir.1987); United States v. Bernard, 384 F.2d 915, 916 (2d Cir.1967); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.1984); United States v. Greber, 760 F.2d 68, 73 (3d Cir.1985); Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 367 (4th Cir.1985); United States v. Hausmann, 111 F.2d 615, 616-17 (5th Cir.1983); United States v. Chandler, 752 F.2d 1148, 1150-51 (6th Cir.1985); United States v. Brantley, 786 F.2d 1322, 1327 & n. 2 (7th Cir.1986); United States v. Hicks, 619 F.2d 752, 758 (8th Cir.1980); United States v. Daily, 921 F.2d 994, 1004 (10th Cir.1990); United States v. Lopez, 728 F.2d 1359, 1362 n. 4 (11th Cir.1984); United States v. Hansen, 772 F.2d 940, 950 (D.C.Cir.1985). 28 F.3d at 955.
. Dale argues that Teague does not prevent retroactive application of new rules in collateral challenges to federal (rather than state-court) convictions. This court, however, has twice recognized Teague's applicability to federal conviction challenges. See United States v. McKie, 73 F.3d 1149, 1150 (D.C.Cir.1996); United States v. Ayala, 894 F.2d 425, 429 n. 8. (D.C.Cir.1990).