dissenting :
At the heart of my disagreement with the majority regarding count four is a differing view of the proof that is necessary to support a conviction under that count. The majority opinion states that “[cjount four of the indictment charged Deep with a knowing failure to perform a required duty”, and the opinion indicates that the breach of duty to which it refers was that Deep had failed to report that “he was no longer wearing any type of effective braces . ” The government could have charged Deep with knowingly failing to report that he had removed some part or parts of his dental appliances, but it did not do so. Rather the government charged that Deep had failed to report that he was no longer undergoing active orthodontic treatment. To prove the offense actually charged in count four, the government had to prove not only that Deep was not undergoing active orthodontic treatment from April 13, 1971, to May 11, 1971, but also that Deep knew that he was not undergoing such treatment.1
Even assuming arguendo that the jury could infer from the expert testimony that Deep had in fact ceased to undergo active orthodontic treatment, and giving the government’s evidence its maximum force,2 we cannot hold that a jury could *1323have found that Deep knew during the relevant period of time that he was not undergoing active orthodontic treatment. To conclude that the jury could not properly infer that Deep knew he had ceased active orthodontic treatment, we need not say that the jury was required to find that the removal of the braces by Deep was within the scope of active orthodontic treatment; we need only conclude that the jury could not find beyond a reasonable doubt that Deep knew that such was not the case.
The jury could not so find largely because active orthodontic treatment is a term of art the meaning of which is unclear even to experts. Although the government argued that the term is “clearly understood to any orthodontist or dentist, and any layman using common sense,” the testimony of the government’s expert witnesses about the meaning of the term indicates otherwise. None of the experts was able to define the term with any precision; none of the attempted definitions agreed with any of the others. If the expert witnesses could not agree upon any definition of active orthodontic treatment, how could the jury have attributed to Deep knowledge of what the terminology meant and knowledge that whatever it meant, he was not receiving that treatment?
In essence, only two facts are asserted that might support an inference that Deep was aware that he no longer was undergoing active orthodontic treatment ; that appliances were removed from his teeth and that they were removed by Deep.
First, the fact that part or parts of Deep’s orthodontic apparatus had been removed was not, in light of the record sufficient to support an inference that he knew that he was not undergping active orthodontic treatment. It is highly questionable whether or not it was proper on this record to conclude that Deep was in fact not undergoing such treatment,3 and in reaching the conclusion that he was not, the jury had the guidance of several expert witnesses. Nothing in the record suggests that Deep was given comparable advice as to what constituted active orthodontic treatment. If a jury might be unable to infer even from expert testimony that Deep was not under active treatment, it surely cannot be said that beyond a reasonable doubt a lay person at the very beginning of orthodontic treatment would know that removal of a part or parts of his orthodontic appliances so impaired the quality of his treatment that it ceased to be active orthodontic treatment.
Second, from the testimony that bands are generally only properly removed by a dentist or orthodontist, the jury might reasonably have inferred that Deep, in removing his orthodontic appliances, was disobeying express or implied instructions from his dentist.4 The inferential leap from the notion that Deep disobeyed his dentist to the conclusion that his active orthodontic treatment thereby was and was known to be terminated, *1324however, cannot be made on this record. If a patient disobeyed his orthodontist’s admonishment to avoid eating hard foods that might misalign the appliances, or failed regularly to wear auxiliary headgear, or, as in this case, removed wires or bands that were causing extreme discomfort, it could not be said that the patient knew that his active orthodontic treatment was necessarily terminated thereby. At most, it could be inferred that the patient knew that he might be impairing to some extent the effectiveness of the treatment.
Because the meaning of the phrase active orthodontic treatment is unclear and because there is insufficient evidence to show that, whatever the phrase means, Deep knew that he was not receiving such treatment, I conclude that Deep could not be convicted on this record of the offense charged in count four. Deep’s motion for a judgment of acquittal should have been granted at the close of the government’s case in chief.5
I concede, of course, that the evidence would support a conviction for failure to report the fact that orthodontic appliances had been removed from Deep’s teeth. However, Deep was not charged with, nor was the jury instructed with regard to, that failure. The charge that Deep had knowingly failed to report that he was no longer undergoing active orthodontic treatment cannot be translated into a charge that he had knowingly failed to report that he had removed part or parts of his appliances. The government’s failure of proof cannot be cured by deciding that the government fully proved a charge that it did not make.
I turn to the fifth count. The substance of the charge was that Deep made a material false statement in violation of 18 U.S.C. § 1001 when he wrote to the board “stating that he recently removed his orthodontic bands due to an automobile accident, when in fact he did not remove his orthodontic bands due to an automobile accident.” The charge did not state an offense. Materiality of the false statement is an essential element of an offense under section 1001 (United States v. East (9th Cir. 1969) 416 F.2d 351; Paritem Singh Poonian v. United States (9th Cir. 1961) 294 F.2d 74.) A statement is not material unless it would naturally affect or influence agency action or decision. Deep’s statement that he had recently removed his orthodontic bands was material, but it was not false. The claimed falsity was in stating that the reason for the removal was an automobile accident. That statement, even if false, was not material because there is no decision or action of the local board that it could properly have affected or influenced.
In an effort to sustain its conclusion that a false statement of the reason for removing the braces was material, the majority argues that Deep intended thereby to mislead the board. The argument fails to establish materiality. A fact that is immaterial does not become material because a registrant has an evil motive in stating it. In determining materiality, the state of mind that is relevant is that of the board, not of the registrant. The majority further argues that the misrepresentation had “a natural tendency to influence the local board to believe that the physical condition necessitating the initial orthodontic treatment still existed.” I am unable to discern any reasonable chain of inferences that could lead the board to believe that if Deep removed his bands for some reason other than an automobile accident, he did not need any *1325orthodontic treatment. More importantly, with regard to both arguments, the majority cannot indicate what decision or action of the local board could have been affected or influenced by Deep’s alleged falsification,6 nor does the majority opinion supply any set of facts or logical inferences from which we could properly conclude that any such decision, action, or inaction was or could have been induced by Deep’s statement of the reason for removing his braces. I am unable to supply any.
I would reverse.
. These were included as necessary elements of the offense in an instruction requested by the government and given by the district court. The government, as it must, acknowledges in its brief on appeal and its petition for rehearing that proof of these elemeats was necessary to sustain the conviction.
. I ignore testimony favorable to Deep that was consistent with his efforts to receive continuing treatment because we must view *1323the record in the light most favorable to the government.
. The record in Deep’s case is clear that he needed orthodontic treatment and that such treatment had been commenced. One of the government’s experts testified that removal of orthodontic bands for various periods of time up to two or three months was a part of some kinds of full orthodontic treatment and that removal for shorter times was a regular part of orthodontic treatment. While the majority opinion correctly maintains that the jury was not required to find that Deep’s treatment was of this type, it seems improper to allow the jury to find beyond a reasonable doubt that it was not unless there was some evidence suggesting that it was not. There was no such evidence. These factors and their effect on what the jury could reasonably find with regard to Deep’s knowledge about the status of his treatment distinguish this case from United States v. Ayala (9th Cir. 1972) 465 F.2d 464.
. If, of course, Deep was not disobeying his dentist when he removed his bands, it would be even more obviously impermissible for the jury to infer that he knew that active orthodontic treatment had ceased.
. Rule 29(a) of the Federal Rules of Criminal Procedure provides, in pertinent part, that “[t]he court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.” As for the general standard for determining sufficiency of the evidence, see generally 8 J. Moore, Federal Practice j[ 29.06 at 29-18 to 29-26.
. The notification that Deep no longer had orthodontic apjdianees attached indicated a change in physical condition that would have required reevaluation of Deep’s classification, and that, under the regulations, would doubtless have required termination of his disqualification for induction (he had ceased to be an “[individual] with orthodontic appliances attached . . . .”). Even if Deep may have desired the alleged misrepresentation to prevent reexamination of his classification, it could not have done so. The local board’s actions were required to be the same, regardless of the reason for removal of the braces,