UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-30083
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
THOMAS S. WALDRON,
Defendant-Appellant.
Appeal from the United States District Court
For the Middle District of Louisiana
July 21, 1997
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY, DUHÉ, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge.
PROCEDURAL HISTORY
Two years ago, this court affirmed Waldron’s convictions on
six counts of making false statements to a federally insured bank
in violation of 18 U.S.C. § 1014. United States v. Waldron, 53
F.3d 60 (5th Cir. 1995)1. The Supreme Court granted Waldron’s
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We do not withdraw the original opinion rendered in this
case. That opinion, after discussing issues not before the court
on remand, found simply that “Waldron’s remaining claims have no
merit.” Waldron, 53 F.3d at 684. Because we conclude on remand
that Waldron’s Gaudin claim has no merit, we will not disturb the
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Petition for Writ of Certiorari, vacated the judgment, and remanded
for reconsideration in light of United States v. Gaudin, 115 S. Ct.
2310 (1995). Waldron v. United States, 116 S. Ct. 333 (1995).
Gaudin held that, because materiality of a false statement alleged
in a 18 U.S.C. § 1001 prosecution (making false statements in a
matter within the jurisdiction of a federal agency) is an element
of the crime, it must be submitted to the jury, rather than decided
by the court.
This court then granted a motion to hold Waldron in abeyance
after the Supreme Court granted certiorari in United States v.
Wells, 117 S. Ct. 921 (1997). On February 26, 1997, the Supreme
Court decided Wells, holding that materiality is not an element of
§ 1014. The parties then rebriefed the Gaudin and Wells issues.
We now affirm Waldron’s convictions.
JURY INSTRUCTION ON MATERIALITY
Waldron contends that he is entitled to a new trial because
the district court’s materiality instruction created an
irrebuttable presumption regarding proof of the mental element of
the crimes for which he was being tried.
The District Court instructed the jury:
As to the fourth element that must be proved beyond
a reasonable doubt in this case. As to these courts I
should say counts 3 through 9 [sic], you are instructed
that a material statement is one that is capable of
influencing a financial institution in determining
whether or not to make a certain loan.
Now, this question of material statement is not a
question for you to decide. I have decided that question
and you are hereby instructed that the statements alleged
original opinion.
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to be false contained in counts 3 through 10 are all
material statements.
Now, while I have found, under the law, that each of
the statements was material, that is capable of
influencing Sun Belt in acting on the loan applications,
you must decide whether the defendant knowingly caused
false statements to be made for the purpose of
influencing the bank on an application for a loan.
This statute, the false statement statute, prohibits
the making of false statements to federally insured banks
for the purpose of influencing the actions of the bank.
False statements given to insured banks have the
potential to mislead auditors of the bank and examiners
of the Home Loan Bank Board. Consequently the Government
need not show that officials of the bank actually relied
upon any false statement or that officials of the Bank
were actually influenced by false statements.
The essence of the offense charged in counts 3
through 10 is the making of a statement with intent to
influence the lending institution.
Waldron’s counsel objected to the materiality instruction:
I think I was talking about the materiality
instruction. I object to your honor instructing the jury
that the statements are material. It is simply not a
matter for them to consider and I don’t think this should
have been instructed at all. I do feel that an
instruction like that is prejudicial to the defense and
is unnecessary.
The Supreme Court has held that the Due Process Clause
protects an accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged. Sandstrom v. Montana, 422 U.S. 510, 520,
99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). That case differentiated
between permissive inferences, which do not violate a defendant’s
due process rights, and conclusive presumptions or burden shifting
presumptions, which do. Waldron contends that the district court’s
instruction established as a matter of law a fact which was
essential to and intertwined with the intent element of the charged
offense, thus creating an irrebuttable conclusion regarding a fact
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which proved the “purpose of influencing” state of mind required
for conviction. Waldron argues, in the alternative, that the
instruction shifted the burden of persuasion to him on the element
of intent.
The government contends that the instruction, viewed as a
whole, simply defined a material statement as one capable of
influencing a financial institution. The jury was not told that it
had to find intent, but was allowed to infer intent from the
existence of materiality. The jury was explicitly told it had to
independently decide whether Waldron made the statements “for the
purpose of influencing the bank.”
Because Waldron did not posit a due process objection to the
district court’s instruction, which instruction was an accurate
articulation of the controlling Fifth Circuit law at the time it
was given, we employ the plain error standard of review. United
States v. Blocker, 104 F.3d 720, 735 (5th Cir. 1997). Under Fed.
R. Crim. P. 52(b), this court may correct forfeited errors only
when the appellant shows (1) there is an error, (2) that is clear
or obvious, and (3) that affects his substantial rights. Id. If
these factors are established, the decision to correct the
forfeited error is within the sound discretion of the court, and
the court will not exercise that discretion unless the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. Assuming that the first three factors
are met in this case, we decline to exercise our discretion to
correct the error, because we do not find that the fairness,
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integrity or public reputation of the judicial proceedings were
compromised by the jury instruction given. See United States v.
Nash, 1997 WL 345977, F.3d (9th Cir. 1997)(holding that the
district court’s instruction that the statements allegedly made in
violation of § 1014 were material as a matter of law did not take
an element away from the jury and was therefore harmless). The
instructions given in this case were clear concerning the
presumption of Waldron’s innocence and the jury’s duty to determine
mens rea. Our decision is further buttressed by the jury’s
decision to acquit Waldron on two § 1014 counts. We cannot
conclude, based on the record in this case, that Waldron’s due
process rights were violated because the jury instructions did not
create a conclusive presumption or shift the government’s burden of
proof on the element of intent to the defendant.
We therefore affirm Waldron’s convictions.
AFFIRM.
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