OCTOBER TERM, 1996
Syllabus
UNITED STATES
v. WELLS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 95-1228. Argued November 4, 1996-Decided February
26,1997
An indictment charged respondents with,
inter alia,
knowingly making false and "material" statements to a federally
insured bank in violation of 18 U. S. C. § 1014. At the trial's
end, the District Court instructed the jury, at the Government's
behest, that withholding a "material fact" made a statement or
representation false and that materiality of an allegedly false
statement was for the judge, not the jury, to determine. The jury
convicted respondents, the court treated their statements as
material, and they appealed. This Court then decided, in
United
States v.
Gaudin, 515 U. S. 506, that if
materiality is an element of § 1001, it is a question for the jury.
When the Eighth Circuit requested supplemental briefing on
Gaudin's applicability in this case, respondents argued that
materiality is an element of § 1014 on which they were entitled to
a jury's determination; the Government argued, for the first time,
that materiality is not an element under § 1014, so that no harm
had been done when the trial judge dealt with the issue. The Eighth
Circuit agreed with respondents, vacated their convictions and
sentences, and remanded the case for a new trial.
Held:
1. Respondents' preliminary arguments do not block this Court
from reaching the question on which the writ of certiorari was
granted. Although the Government proposed jury instructions to the
effect that materiality is an element of § 1014, Federal Rule of
Criminal Procedure 30 and the doctrines of "law of the case" and
"invited error" do not prevent the Government from taking the
contrary position here. Although the indictment charged respondents
with submitting material false statements, the "law of the case"
doctrine does not prevent the Government from arguing here that
materiality is not an element of § 1014. While the Government
failed to argue in its initial briefs submitted to the Court of
Appeals that materiality is not an element of § 1014, it did so in
its supplemental filings, and thus the "invited error" doctrine
could not prevent the Government from taking the opposite position
here. Pp.487-489.
2. Materiality of falsehood is not an element of the crime of
knowingly making a false statement to a federally insured bank
under § 1014. Pp. 489-500.
483
(a) The falsehood's materiality-i.
e., its "natural
tendency to influence, or capa[bility] of influencing, the decision
of the ... body to which it was addressed,"
Kungys v.
United States, 485 U. S. 759, 770would
not be an element of § 1014 under the first criterion in the
statutory interpretation hierarchy, a natural reading of the full
text, see
United States v.
American Trucking Assns.,
Inc., 310 U. S.
534, 542543. The section's text-which criminalizes "knowingly
mak[ing] any false statement or report ... for the purpose of
influencing in any way the action" of a federally insured bank
"upon any application, advance, ... commitment, or loan" -nowhere
says that a material fact must be the subject of the false
statement or so much as mentions materiality. To the contrary, its
terms cover "any" false statement that meets the statute's other
requirements, and the term "false statement" carries no general
suggestion of influential significance, see,
e. g., Kungys,
supra, at 781. Nor have respondents come close to showing that
at common law the term "false statement" acquired any implication
of materiality that came with it into § 1014. See,
e. g.,
Nationwide Mut. Ins. Co. v.
Darden, 503 U. S. 318, 322.
Finally, statutory history confirms the natural reading of § 1014.
When Congress enacted § 1014, it consolidated into one section 3
prior provisions that had included an explicit materiality
requirement, and 10 that did not, and Congress enacted other
provisions that included express materiality requirements. The most
likely inference is that Congress did not intend materiality to be
an element of § 1014.
United States v.
Shabani,
513 U. S. 10,
13-14. In addition, Congress enacted § 1014 after
Kay v.
United States, 303 U. S. 1, which stands
in the way of any assumption that Congress might have understood §
1014 to contain an implicit materiality requirement. Pp.
489-495.
(b) Respondents' arguments for affirmance-that Congress has
ratified decisions holding materiality to be a § 1014 element by
repeatedly amending the statute without rejecting those decisions;
that the failure of the 1948 Reviser's Note to § 1014 to mention
the section's omission of the materiality element contained in 3 of
its 13 predecessor statutes means that Congress must have
overlooked the issue; that materiality must be read into the
statute to avoid the improbability that Congress intended to impose
substantial criminal penalties on relatively trivial or innocent
conduct; and that the rule of lenity must be applied here-are
unavailing to change the straightforward reading of § 1014.
Pp.495-499.
(c) Since respondents' further arguments-that because the
instruction taking materiality from the jury probably left the
impression that respondents' statements as alleged were material,
the instructions influenced the jury in passing on the falsity and
purpose elements; and that because the indictment alleged
materiality, any ruling that materiality need not be shown in this
case would impermissibly "amend" the
484
indictment contrary to the Fifth Amendment-were neither raised
in respondents' briefs before, nor passed on by, the Eighth
Circuit, it is left to that court on remand to take up the
propriety of raising them now and to address them if warranted. Pp.
499-500.
63 F.3d
745, vacated and remanded.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, THOMAS, GINSBURG,
and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion,
post, p. 500.
Deputy Solicitor General Dreeben argued the cause for the United
States. With him on the briefs were Solicitor General Days, Acting
Solicitor General Dellinger, Acting Assistant Attorney General
Keeney, Paul A. Engelmayer, and William C. Brown.
James R. Wyrsch argued the cause for respondents. With
him on the brief was
Ronald D. Lee. *
JUSTICE SOUTER delivered the opinion of the Court.
The principal issue before us is whether materiality of
falsehood is an element of the crime of knowingly making a false
statement to a federally insured bank, 18 U. S. C. § 1014. We hold
that it is not.
I
In 1993, the Government charged respondents, Jerry Wells and
Kenneth Steele, with violating and conspiring to violate the cited
statute as officers and part owners of Copy tech Systems, Inc., a
lessor of office copiers for a monthly fee covering not only use of
the equipment but any service that might be required. To raise
cash, Copytech sold its interest in the income stream from these
contracts to banks.
In Count I of the indictment, the Government charged respondents
with conspiring to violate § 1014 by concealing from several banks
the true contractual terms.1 Re-
*
Bruce S.
Rogow and
Beverly A. Pohl filed
a brief for the National Association of Criminal Defense Lawyers as
amicus curiae urging affirmance. 1 Title 18 U. S. C. § 371
makes it a crime to "conspire ... to commit any offense against the
United States."
485
spondents supposedly conspired to provide the banks with
versions of lease contracts purporting to indicate that Copy tech's
customers were responsible for servicing the equipment when, in
fact, secret side agreements placed that responsibility on Copy
tech at no further cost to the lessees. See App. 24-25;
63 F.3d
745, 748 (CA8 1995). The Government alleged that respondents
concealed the service obligations in order to avoid tying up needed
cash in reserve accounts, which the banks might have required
Copytech to maintain if they had known of the company's servicing
obligations.
Ibid.
In Count II, respondents were charged with violating § 1014 by
giving a bank forgeries of respondents' wives' signatures on
personal guaranties designed to enable the bank to pursue the
wives' assets if Copytech defaulted on any liability to the bank.
See App. 21, 30-31; 63 F. 3d, at 748.2 Each count of the indictment
charged respondents with submitting one or more statements that
were both false and "material." App. 24, 25, 29, 30-31.
At the end of the trial, the District Court instructed the jury,
at the Government's behest, that withholding a "material fact" made
a statement or representation false, id., at 41, 42, and defined a
material fact as one "that would be important to a reasonable
person in deciding whether to engage or not to engage in a
particular transaction," id., at 42. Although there was no
controversy over the law as stated in these instructions, the
Government argued that materiality was for the judge to determine,
while respondents said it was an issue for the jury. 63 F. 3d, at
749, nn. 3 and 4. Following Eighth Circuit precedent then
prevailing, the District Court agreed with the Government and told
the jury that "[t]he materiality of the statement ... alleged to be
false ... is not a matter with which you are concerned and
2 The Government also charged respondents with three other
counts of violating § 1014. The District Court dismissed one count
prior to trial and granted judgment of acquittal on the other two.
63 F. 3d, at 748; Brief for Respondents 2; Brief for United States
3, n. 1.
486
should not be considered by you in determining the guilt or
innocence of the defendant[s]," App. 43. The jury convicted
respondents on both counts, the court treated the statements as
material, and respondents appealed.
While the appeal was pending, we decided
United States v.
Gaudin, 515 U.
S. 506 (1995), in which the parties agreed that materiality was
an element of 18 U. S. C. § 1001, but disputed whether materiality
was a question for the judge or jury, 515 U. S., at 509. Applying
the rule that "[t]he Constitution gives a criminal defendant the
right to have a jury determine ... his guilt of every element of
the crime with which he is charged," we held that the jury was
entitled to pass on the materiality of Gaudin's statements, id., at
522523. When the Court of Appeals in this case requested
supplemental briefing on the applicability of
Gaudin,
respondents argued that under § 1014 materiality is an element on
which they were entitled to a jury's determination; the Government
argued, for the first time, that materiality is not an element
under § 1014, so that no harm had been done when the judge dealt
with the issue. The Court of Appeals agreed with respondents,
vacated their convictions and sentences, and remanded the case for
a new trial. 63 F. 3d, at 749-751.
We granted the Government's petition for certiorari to decide
whether materiality of a false statement or report is an element
under § 1014.3 517 U. S. 1154 (1996). We now vacate and remand.
3 Most, but not all, of the Federal Courts of Appeals have held
that materiality is an element. Compare
United States v.
Lopez, 71 F.3d
954, 960 (CAl1995), cert. denied, 518 U. S. 1008 (1996);
United States v.
Ryan, 828 F.2d
1010, 1013, n. 1
(CA3 1987);
United States v.
Bonnette, 663 F.2d
495, 497
(CA4 1981), cert. denied, 455 U. S. 951 (1982);
United States v.
Thompson, 811
F.2d 841, 844 (CA5 1987);
United States v.
Spears, 49 F.3d
1136, 1141 (CA6 1995);
United States v.
Staniforth, 971 F.2d
1355, 1358 (CA7 1992);
Theron v.
United States
Marshal, 832 F.2d
492, 496-497 (CA9 1987), cert. denied, 486 U. S. 1059 (1988);
United States v.
Haddock, 956 F.2d
1534, 1549 (CAW), cert. denied, 506 U. S. 828 (1992);
United
States v.
Rapp, 871 F.2d
957, 964 (CAll), cert. denied
sub nom. Bazarian v.
487
II
We first address respondents' efforts to block us from reaching
the question on which we granted certiorari. Given the Government's
proposal for jury instructions to the effect that materiality is an
element under § 1014, respondents argue that Federal Rule of
Criminal Procedure 30 and the doctrines of "law of the case" and
"invited error" each bar the Government from taking the position
here that materiality is not an element. None of these reasons
stands in our way to reaching the merits.
Rule 30 (applicable in this Court, see Fed. Rules Crim.
Proc. 1, 54(a)) provides that "[n]o party may assign as error
any portion of the charge [given to the jury] ... unless that party
objects thereto before the jury retires to consider its verdict."
But the Government is not challenging the jury instruction in an
effort to impute error to the trial court; it is merely arguing
that the instruction it proposed was harmless surplusage insofar as
it was directed to the jury.
As for the two doctrines, respondents are correct that several
Courts of Appeals have ruled that when the Government accepts jury
instructions treating a fact as an element of an offense, the "law
of the case" doctrine precludes the Government from denying on
appeal that the crime includes the element. See
United
States v.
Killip, 819 F.2d
1542, 1547-1548 (CAlO), cert. denied
sub nom. Krout v.
United States, 484 U. S. 987 (1987);
United States v.
Tapio, 634 F.2d
1092, 1094 (CA8 1980);
United States v.
Spletzer,
535 F.2d
950, 954 (CA5 1976).4 They are also correct that Courts of
United States, 493 U. S. 890 (1989) (all holding
materiality to be an element of § 1014), with
United States
v.
Cleary, 565 F.2d
43, 46
(CA2 1977) (concluding that materiality is not an
element), cert. denied
sub nom. Passarelli v.
United
States, 435 U. S. 915 (1978).
4 In this context, the "law of the case" doctrine is something
of a misnomer. It does not counsel a court to abide by its own
prior decision in a given case, but goes rather to an appellate
court's relationship to the court of trial. See 18 C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure §4478
(1981).
488
Appeals have stated more broadly under the "invited error"
doctrine" 'that a party may not complain on appeal of errors that
he himself invited or provoked the [district] court ... to
commit.'"
United States v.
Sharpe, 996 F.2d
125, 129 (CA6) (quoting
Harvis v.
Roadway Express,
Inc., 923 F.2d
59, 60 (CA6 1991)), cert. denied, 510 U. S. 951 (1993). But
however valuable these doctrines may be in controlling the party
who wishes to change its position on the way from the district
court to the court of appeals, they cannot dispositively oust this
Court's traditional rule that we may address a question properly
presented in a petition for certiorari if it was "pressed [in] or
passed on" by the Court of Appeals,
United States v.
Williams, 504
U. S. 36,42 (1992) (internal quotation marks and emphasis
omitted). Accordingly, we have treated an inconsistency between a
party's request for a jury instruction and its position before this
Court as just one of several considerations bearing on whether to
decide a question on which we granted certiorari. 5 See
Springfield v.
Kibbe, 480 U. S. 257, 259-260 (1987)
(per curiam}.6 Here, it seems sensible to reach the question
presented.
5 Respondents offer variations on their "law of the case" and
"invited error" doctrines. In addition to arguing that the "law of
the case" doctrine holds the Government to the position it took on
the jury instructions, respondents contend this doctrine holds the
Government to the position it adopted in the indictment. See Brief
for Respondents 14-16 (citing
United States v.
Norberg, 612 F.2d
1 (CA1 1979)). For the reasons set forth in the text,
this latter version of the doctrine does not stand in our way to
reaching the question presented.
Along with arguing that the Government "invited error" in the
District Court by proposing its jury instructions, respondents
claim that the Government invited error in the Court of Appeals by
failing to argue that materiality is not an element of § 1014 in
its initial brief to that court. This claim is wrong. After the
Court of Appeals requested supplemental briefing, the Government
argued that materiality is not an element of § 1014 and therefore
hardly "invited" that court's contrary ruling.
6 In
Springfield v.
Kibbe, 480 U. S., at 259, the
Court dismissed the writ of certiorari on prudential grounds in
part because the petitioner there, like the Government here, sought
"to revers[e] a judgment because of
489
The question of materiality as an element was raised before the
Court of Appeals, ruled on there, clearly set forth in the
certiorari petition, fully briefed, and argued. Nor would reaching
the issue excuse inattention or reward cunning. For some time
before respondents' trial in 1993, the Eighth Circuit had assumed
that the Government was bound to prove a false statement's
materiality as an element under § 1014, see 63 F. 3d, at 750-751;
United States v.
Ribaste, 905 F. 2d 1140, 1143
(1990);
United States v.
McKnight, 771 F.2d
388, 389 (1985), and had treated this issue as one for the
judge, not the jury, see
United States v.
Ribaste,
supra, at 1143. Since the Government was confident that it had
evidence of materiality to satisfy the Circuit rule, it had no
reason not to address the element when it drafted the indictment
and its proposed jury instructions. When
Gaudin rendered it
reversible error to assign a required materiality ruling to the
court, the Government suddenly had reason to contest the
requirement to show materiality at all. Nothing the Government has
done disqualifies it from the chance to make its position good in
this Court.
III
We accordingly consider whether materiality of falsehood is an
element under § 1014, understanding the term in question to mean
"ha[ving] a natural tendency to influence, or [being] capable of
influencing, the decision of the decisionmaking body to which it
was addressed,"
Kungys v.
United States, 485 U. S. 759, 770 (1988)
(internal quotation marks
[jury] instructions that petitioner accepted, and indeed itself
requested." In contrast to the case at hand, however, the
petitioner in
Kibbe had not, in the Court of Appeals, raised
an issue critical to resolving the question presented in its
petition for a writ of certiorari, the Court of Appeals had not
considered that related issue, and the petitioner had not
explicitly raised that related issue in its certiorari petition,
id., at 258-260. See also
United States v.
Williams,
504 U. S. 36, 43,
n. 3 (1992) (discussing
Kibbe).
490
omitted); see also
United States v.
Gaudin, 515 U.
S., at 509.7 We begin with the text. See
Community for Creative
Non- Violence v.
Reid, 490 U. S. 730, 739
(1989). Section 1014 criminalizes "knowingly mak[ing] any false
statement or report ... for the purpose of influencing in any way
the action" of a Federal Deposit Insurance Corporation (FDIC)
insured bank "upon any application, advance, ... commitment, or
loan." 18 U. S. C. § 1014. Nowhere does it further say that a
material fact must be the subject of the false statement or so much
as mention materiality.8 To the contrary, its terms cover "any"
false statement that meets the other requirements in the statute,
and the term "false statement" carries no general suggestion of
influential significance, see
Kungys v.
United States,
supra, at 781; cf.
Kay v.
United States, 303 U. S. 1, 5-6 (1938).
Thus, under the first criterion in the interpretive hierarchy, a
natural reading of the full text, see
United States v.
American Trucking Assns., Inc., 310 U. S. 534, 542-543
(1940), materiality would not be an element of § 1014.9
7The Court of Appeals here also appears to have understood
materiality to have this meaning. See 63 F. 3d, at 750 (relying on
United States v.
Adler, 623 F.2d
1287, 1291
(CA8 1980), which defined "materiality" as
having "a natural tendency to influence or [being] capable of
influencing" an entity's decision (internal quotation marks
omitted)).
8The pertinent text of § 1014 is: ''Whoever knowingly makes any
false statement or report, or willfully overvalues any land,
property or security, for the purpose of influencing in any way the
action of ... any institution the accounts of which are insured by
the Federal Deposit Insurance Corporation ... , upon any
application, advance, discount, purchase, purchase agreement,
repurchase agreement, commitment, or loan, or any change or
extension of any of the same, by renewal, deferment of action or
otherwise, or the acceptance, release, or substitution of security
therefor, shall be fined not more than $1,000,000 or imprisoned not
more than 30 years, or both."
9 JUSTICE STEVENS argues that the four criminal acts other than
"false statement" listed in § 1014 would in fact involve material
misstatements, and that it follows on the theories of
ejusdem
generis and
noscitur a sociis that false statements must
also be shown to be material.
Post, at 510-
491
Nor have respondents come close to showing that at common law
the term "false statement" acquired any implication of materiality
that came with it into § 1014. We do, of course, presume that
Congress incorporates the common-law meaning of the terms it uses
if those" 'terms ... have accumulated settled meaning under ... the
common law'" and "'the statute [does not] otherwise dictat[e],'"
Nationwide Mut. Ins. Co. v.
Darden, 503 U. S. 318, 322 (1992)
(quoting
Community for Creative Non-Violence v.
Reid,
supra, at 739). Respondents here, however, make no claims about
the settled meaning of "false statement" at common law; they merely
note that some common-law crimes involving false statements, such
as perjury, required proof of materiality. See Brief for
Respondents 23-24. But Congress did not codify the crime of perjury
or comparable common-law crimes in § 1014; as we discuss next, it
simply consolidated 13 statutory provisions relating to financial
institutions, and, in fact, it enacted a separate general perjury
provision at 18 U. S. C. § 1621, see 62 Stat. 773.10
511, n. 12. But this does not follow. The question is not
whether the specified categories of statements will almost
certainly be material statements in point of fact; like false
statements made for the purpose of influencing a lender, the four
other criminal acts will virtually always involve material
misstatements. The question, however, is whether materiality must
be proven as a separate element, and on that question a list of
criminal acts, none of which is expressly described as "material,"
is no premise for the dissent's conclusion under the
ejusdem
generis and
noscitur a sociis canons.
10 Nor does
Fedorenko v.
United States, 449 U. S. 490 (1981),
help respondents here. In
Fedorenko, we agreed with the
Government that, even though the phrase "willfully make a
misrepresentation" in § 10 of the Displaced Persons Act, 62 Stat.
1013, did not use the term "material," it nonetheless applied only
to willful misrepresentations about "material" facts, 449 U. S., at
507-508, and n. 28. The dissent argues we should reach a similar
conclusion here, because
Kungys v.
United States,
485 U. S. 759,
781 (1988), made it clear that "misrepresentation" and "false
statement" were on par at common law.
Post, at 504, and n.
6. But the passage from
Kungys quoted by the dissent
addressed the historic meaning of the
492
Statutory history confirms the natural reading. When Congress
originally enacted § 1014 as part of its recodification of the
federal criminal code in 1948, 62 Stat. 752, it explicitly included
materiality in other provisions involving false representations.ll
Even more significantly, of the 13 provisions brought together by §
1014,10 had previously contained no express materiality provision
and received none in the recodification,12 while 3 of the 13 had
contained express
term "material," see 485 U. S., at 769, not the common-law
meaning of "misrepresentation" or "false statement." Although
Kungys supports the view that "materiality" has the same
meaning in criminal statutes that prohibit falsehoods to public
officials, whether the statutes refer to misrepresentations, see
id., at 772-776, or to some form of false statements, see id., at
779-782, that does not mean that "misrepresentation" and "false
statement" are identical in carrying an implicit requirement of
materiality. Indeed,
Kungys distinguished between the
common-law meaning of "misrepresentation" and "false testimony,"
concluding that while the former had been held to carry a
materiality requirement in many contexts, the terms "false" or
"falsity" did not as frequently carry such an implication.
Id., at 781.
More fundamentally, we disagree with our colleague's apparent
view that any term that is an element of a common-law crime carries
with it every other aspect of that common-law crime when the term
is used in a statute. JUSTICE STEVENS seems to assume that because
"false statement" is an element of perjury, and perjury
criminalizes only material statements, a statute criminalizing
"false statements" covers only material statements. See
post, at 504. By a parity of reasoning, because common-law
perjury involved statements under oath, a statute criminalizing a
false statement would reach only statements under oath. It is
impossible to believe that Congress intended to impose such
restrictions
sub silentio, however, and so our rule on
imputing common-law meaning to statutory terms does not sweep so
broadly.
11 See 18 U. S. C. § 1621, 62 Stat. 773 (entitled "Perjury
generally," and prohibiting statements under oath regarding "any
material matter which [one] does not believe to be true"); 18 U. S.
C. § 1001, 62 Stat. 749 (entitled "Statements or entries
generally," and prohibiting,
inter alia, "knowingly and
willfully falsif[ying] ... a material fact").
12 See 7 U. S. C. § 1514(a) (1946 ed.) ("mak[ing] any statement
knowing it to be false ... for the purpose of influencing"); 12 U.
S. C. § 981 (1946 ed.) ("knowingly mak[ing] any false statement in
an application for [a] loan");
493
materiality requirements and lost them in the course of
consolidationP See
Williams v.
United States,
458 U. S. 279,
288 (1982). The most likely inference in these circumstances is
that Congress deliberately dropped the term "materiality" without
intending materiality to be an element of § 1014. See
United
States v.
Shabani, 513 U. S. 10, 13-14
(1994).14
12 U. S. C. § 1122 (1946 ed.) ("mak[ing] any statement, knowing
it to be false, for the purpose of obtaining ... any advance"); §
1123 (1946 ed.) ("willfully overvalu[ing] any property offered as
security"); 12 U. S. C. § 1248 (1946 ed.) ("mak[ing] any statement
... knowing the same to be false"); 12 U. S. C. § 1312 (1946 ed.)
("mak[ing] any statement, knowing it to be false, for the purpose
of obtaining"); 12 U. S. C. § 1313 (1946 ed.) ("willfully
overvalu[ing] any property offered as security"); 12 U. S. C. §
1441(a) (1946 ed.) ("mak[ing] any statement, knowing it to be
false, ... for the purpose of influencing"); 12 U. S. C. § 1467(a)
(1946 ed.) ("mak[ing] any statement, knowing it to be false, ...
for the purpose of influencing"); 15 U. S. C. § 616(a) (1946 ed.)
("mak[ing] any statement knowing it to be false ... for the purpose
of obtaining ... or for the purpose of influencing").
13 See 7 U. S. C. § 1026(a) (1946 ed.) (making a "material
representation"); 12 U. S. C. § 596 (1946 ed.) (making a "material
statement"); and 12 U. S. C. § 1138d(a) (1946 ed.) (making a
"material representation").
14JUSTICE STEVENS suggests that because he can discern no
meaningful difference between the subject matter and penalties
involved in the 42 sections of the United States Code criminalizing
false statements that expressly include a materiality requirement,
and the 54 sections criminalizing false statements that lack an
express materiality requirement, we must infer that Congress
intended all of the sections to include a materiality element. See
post, at 505-509. In other words, Congress must have thought
that including materiality in 42 statutes was surplusage. This, of
course, is contrary to our presumption that each term in a criminal
statute carries meaning. See
Bailey v.
United States,
516 U. S. 137,
145 (1995). Moreover, the dissent's approach to statutory
interpretation leads to remarkable results. The statutes cited by
the dissent contain a variety of different requirements; for
example, some criminalize statements only if they were made with a
particular intent, see,
e. g., 18 U. S. C. § 1919; 33 U. S.
C. § 931, while others do not, see,
e. g., 7 U. S. C. §
13(a)(3); 7 U. S. C. § 6407(e). Under our colleague's reasoning,
unless a court could readily discern a meaningful difference
between these two categories of statutes, apart from the language
used, it should import the
mens rea requirements expressly
appearing in some sections to those that lack them.
494
While 2 of the 3 offenses from which the express materiality
requirement was dropped used the term "representation," see n. 12,
supra, and thus could have included a materiality element
implicitly, see
Kungys v.
United States, 485 U. S.,
at 781 (noting that "misrepresentation" had been held to imply
materiality), the remaining 11 would not have, as was clear from
the opinion of the Court in
Kay v.
United States, 303
U. S. 1 (1938).
Kay had construed 1 of the 10 statutes that
were later mirrored in the language of § 1014; 15 when the
petitioner claimed that the statements she had made could not
"endanger or directly influence any loan made by" the
decisionmaker, id., at 5, we thought her arguments unimpressive,
ibid., and explained:
"It does not lie with one knowingly making false statements with
intent to mislead the officials of the Corporation to say that the
statements were not influential or the information not important.
There can be no question that Congress was entitled to require that
the information be given in good faith and not falsely with intent
to mislead. Whether or not the Corporation would act
15 Compare § 8(a) of the Home Owners' Loan Act, 48 Stat. 134
(providing that "[w]hoever makes any statement, knowing it to be
false, or whoever willfully overvalues any security, for the
purpose of influencing in any way the action of the Home Owners'
Loan Corporation or the Board or an association upon any
application, advance, discount, purchase, or repurchase agreement,
or loan, under this Act, or any extension thereof by renewal
deferment, or action or otherwise, or the acceptance, release, or
substitution of security therefor, shall be punished by a fine of
not more than $5,000, or by imprisonment for not more than two
years, or both"), with § 1014 as enacted in 1948, 62 Stat. 752
(providing that "[w]hoever knowingly makes any false statement or
report, or willfully overvalues any land, property or security, for
the purpose of influencing in any way the action of [enumerated
institutions] upon any application, advance, discount, purchase,
purchase agreement, repurchase agreement, commitment, or loan, or
any change or extension of any of the same, by renewal, deferment
of action or otherwise, or the acceptance, release, or substitution
of security therefor, shall be fined not more than $5,000 or
imprisoned not more than two years, or both").
495
favorably on the loan is not a matter which concerns one seeking
to deceive by false information. The case is not one of an action
for damages but of criminal liability and actual damage is not an
ingredient of the offense." Id., at 5_6.16
Although some courts have read
Kay as holding only that
there is no need for the Government to prove that false statements
actually influenced the decisionmaker, see,
e. g.,
United
States v.
Goberman, 458 F.2d
226, 229 (CA3 1972), the opinion speaks of the importance of
the statements as well as their efficacy, and no one reading
Kay could reasonably have assumed that criminal falsity
presupposed materiality. Since we presume that Congress expects its
statutes to be read in conformity with this Court's precedents,
see,
e. g.,
North Star Steel Co. v.
Thomas,
515 U. S. 29, 34
(1995), and since the relevant language of the statute in
Kay was substantially like that in § 1014,
Kay stands
in the way of any assumption that Congress might have understood an
express materiality provision to be redundant.
Respondents' remaining arguments for affirmance are unavailing.
They contend that Congress has ratified holdings of some of the
Courts of Appeals that materiality is an element of § 1014 by
repeatedly amending the statute without rejecting those decisions.
But the significance of subsequent congressional action or inaction
necessarily varies with the circumstances, and finding any
interpretive help in congressional behavior here is impossible.
Since 1948, Congress has amended § 1014 to modify the list of
covered institutions and to increase the maximum penalty,17 but
without
16 We ultimately did not uphold the conviction in
Kay,
303 U. S., at 9-10, but vacated the lower court's judgment so that
it would be free to address a separate issue relating to the
indictment.
17 See Pub. L. 91-609, § 915, 84 Stat. 1815 (adding FDIC-insured
banks to the list of covered institutions); Pub. L. 101-73,
§961(h), 103 Stat. 500 (increasing the maximum punishment from its
1948 level of a $5,000 fine and two years' imprisonment to
$1,000,000 and 20 years' imprisonment);
496
ever touching the original phraseology criminalizing "false
statement[s]" made "for the purpose of influencing" the actions of
the enumerated institutions. We thus have at most legislative
silence on the crucial statutory language, and we have "frequently
cautioned that '[i]t is at best treacherous to find in
congressional silence alone the adoption of a controlling rule
oflaw,'"
NLRB v.
Plasterers, 404 U. S. 116, 129-130
(1971) (quoting
Girouard v.
United States, 328 U. S. 61, 69 (1946)).
But even if silence could speak, it could not speak unequivocally
to the issue here, since over the years judicial opinion has
divided on whether § 1014 includes a materiality element, see n. 3,
supra, and we have previously described the elements of §
1014 without any mention of materiality, see
Williams v.
United States, 458 U. S., at 284. It would thus be
impossible to say which view Congress might have endorsed. See
Fogerty v.
Fantasy, Inc., 510 U. S. 517, 527532
(1994).18
Respondents also rely on the 1948 Reviser's Note to § 1014,
which discussed the consolidation of the 13 provisions into one,
and explained that, apart from two changes not relevant here,19 the
consolidation "was without change of substance,"
Pub. L. 101-647, §2504(g), 104 Stat. 4861 (increasing the
maximum prison term to 30 years).
18 If we were to rely on legislative history, the reports would
be of no help to respondents. See H. R. Rep. No. 91-1556, pp. 70-71
(1970) (addressing the amendment adding FDIC-insured institutions,
describing the statute as "provid[ing] penalties for making false
statements or reports in connection with loans or similar
transactions"); H. R. Rep. No. 101-54, pt. 1, p. 400 (1989) (on the
amendment increasing the maximum prison term to 20 years and a
$1,000,000 fine, describing § 1014 as "deal[ing] with false
statements in loan and credit applications"); H. R. Rep. No.
101-681, pt. 1, p. 175 (1990) (on the amendment increasing the
maximum prison term to 30 years, describing § 1014 as "relating to
fraudulent loan or credit applications").
19 The two substantive changes were: the adoption of a single
punishment, which was identical to the punishment set forth in the
majority of the predecessor statutes; and the enumeration of a
uniform definition of the types of transactions covered by the
statute, which was a newly
497
Historical and Revision Notes following § 1014, 18 U. S. C., p.
247. Respondents say that the revisers' failure to mention the
omission of materiality from the text of § 1014 means that Congress
must have "completely overlooked" the issue. Brief for Respondents
29-30. But surely this indication that the "staff of experts" who
prepared the legislation,
Muniz v.
Hoffman, 422 U. S. 454, 470, n. 10
(1975), either overlooked or chose to say nothing about changing
the language of three of the former statutes does nothing to muddy
the ostensibly unambiguous provision of the statute as enacted by
Congress, cf.
Consumer Product Safety Comm'n v.
GTE
Sylvania, Inc., 447 U. S. 102, 108 (1980)
("Absent a clearly expressed legislative intention to the contrary,
[statutory] language must ordinarily be regarded as conclusive").
In any event, the revisers' assumption that the consolidation made
no substantive change was simply wrong. As respondents candidly
conceded at oral argument, they failed to discover a single case
holding that any of the predecessor statutes lacking a materiality
requirement implicitly contained one, and after our decision in
Kay v.
United States, 303 U. S. 1 (1938),
Congress could not have assumed that a materiality element was
implicit in a comparable statute that was silent on the issue, see
supra, at 494-495. Dropping the materiality element from the
three statutes could not, then, reasonably have been seen as making
no change. Those who write revisers' notes have proven fallible
before. See
State Farm Fire &
Casualty Co. v.
Tashire, 386
U. S. 523, 532, n. 11 (1967).20
phrased "composite" of the then-existing terms. See Historical
and Revision Notes following § 1014, 18 U. S. C., p. 247.
2°The dissent contends that, because
McClanahan v.
United States, 12 F.2d 263, 264
(CA7 1926), and
United States v.
Kreidler, 11 F. Supp. 402, 403 (SD
Iowa 1935), "held or assumed that" two statutes without an explicit
materiality requirement nonetheless carried an implicit one, the
revisers likely assumed that all of the statutes consolidated in §
1014 contained a materiality requirement.
Post, at 502-503.
Neither case, however, held that one of § 1014's predecessor
statutes contained a materiality
498
Respondents next urge that we follow the reasoning of some
Courts of Appeals in reading materiality into the statute to avoid
the improbability that Congress intended to impose substantial
criminal penalties on relatively trivial or innocent conduct. See
63 F. 3d, at 751;
United States v.
Williams,
12 F.3d
452, 458 (CA5 1994);
United States v.
Staniforth,
971 F.2d
1355, 1358 (CA7 1992). But we think there is no clear call to
take such a course. It is true that we have held § 1014
inapplicable to depositing false checks at a bank, in part because
we thought that it would have "ma[d]e a surprisingly broad range of
unremarkable conduct a violation of federal law,"
Williams
v.
United States, 458 U. S., at 286-287, n. 8, and elsewhere
thought it possible to construe a prohibition narrowly where a
loose
mens rea requirement would otherwise have resulted in
a surprisingly broad statutory sweep, see
United States v.
X-Citement Video, Inc., 513 U. S. 64, 71-72
(1994). But an unqualified
requirement. In
Kreidler, the defendant challenged his
indictment under § 8(a) of the Home Owners' Loan Act (the same
provision at issue two years later in
Kay, see n. 14,
supra), arguing that a statement "must be material and
calculated to deceive,"
Kreidler, 11 F. Supp., at 403. The
District Court simply "assume[d]" the statement "must be relevant
and material," and then found that the indictment satisfied those
requirements.
Id., at 403-404. The question in
McClanahan was whether the defendant's prosecution under §
31 of the Federal Farm Loan Act of 1916, 39 Stat. 382, 12 U. S. C.
§ 981 (1946 ed.), was beyond Congress's constitutional power
because the statute did "not limit the [punishable] statement to
such as relate or are material to the proposed loan." 12 F. 2d, at
263. The court upheld the constitutionality of the statute. While
stating that it "would in all probability be concluded" that
"wholly frivolous and unrelated" false statements made in a loan
application "did not supply the basis for a prosecution under
section 31," the court made it clear that this was dicta, because
it explained in the very next sentence that "there [was] no
question of the relevancy of the alleged false statements knowingly
made" in the case before it.
Id., at 264. In determining
what the revisers might have thought the words of § 1014 meant, we
think it far more likely that they would have relied on the clear
implication of our 1938 decision in
Kay v.
United
States, 303 U. S.
1, rather than on the dicta from two earlier District or
Appeals Court cases.
499
reading of § 1014 poses no risk of criminalizing so much conduct
as to suggest that Congress meant something short of the
straightforward reading. The language makes a false statement to
one of the enumerated financial institutions a crime only if the
speaker knows the falsity of what he says and intends it to
influence the institution. A statement made "for the purpose of
influencing" a bank will not usually be about something a banker
would regard as trivial, and "it will be relatively rare that the
Government will be able to prove that" a false statement "was ...
made with the subjective intent" of influencing a decision unless
it could first prove that the statement has "the natural tendency
to influence the decision,"
Kungys v.
United States,
485 U. S., at 780-781. Hence the literal reading of the statute
will not normally take the scope of § 1014 beyond the limit that a
materiality requirement would impose.
Finally, the rule of lenity is no help to respondents here.
"The rule of lenity applies only if, 'after seizing everything
from which aid can be derived,' ... we can make 'no more than a
guess as to what Congress intended.'"
Reno v.
Koray,
515 U. S. 50, 65
(1995) (quoting
Smith v.
United States, 508 U. S. 223, 239
(1993), and
Ladner v.
United States, 358 U. S. 169, 178
(1958)). Read straightforwardly, § 1014 reveals no ambiguity, its
mens rea requirements narrow the sweep of the statute, and
this is not a case of guesswork reaching out for lenity.
IV
Respondents advance two further reasons to affirm the Court of
Appeals's judgment, even on the assumption that materiality is not
an element. According to respondents, the trial judge's instruction
that "[t]he materiality of the statement ... alleged to be false
... is not a matter with which you are concerned and should not be
considered by you in determining the guilt or innocence of the
defendant[s]," App. 43, probably left the jurors with the
impression that the statements as alleged would have been material,
and
500
that impression could have improperly influenced the jury in
passing on the elements of falsity and purpose. Respondents also
suggest that because the indictment alleged materiality, any ruling
that materiality need not be shown in this case would impermissibly
"amend" the indictment contrary to the Fifth Amendment's
requirement that "[n]o person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury." U. S. Const., Arndt. 5. Since
respondents failed to raise either of these issues in their briefs
before the Court of Appeals and that court did not pass on these
questions, we leave it to the Court of Appeals on remand to take up
the propriety of raising these issues now and to address them if
warranted.
The judgment of the Court of Appeals is vacated, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, dissenting.
Violation of 18 U. S. C. § 1014 is a crime punishable by up to
30 years in prison, a fine of up to $1,000,000, "or both." I am
convinced that Congress did not intend this draconian statute to
apply to immaterial falsehoods, even when made for the purpose of
currying favor with a bank's loan officer. The Court's contrary
conclusion relies heavily on three dubious assumptions: (1) that
our decision in
Kay v.
United States, 303 U. S. 1 (1938), speaks
to the issue in this case; (2) that the revisers of § 1014 erred in
advising us that their 1948 consolidation of 13 earlier statutes
did not change the law; and (3) that flattery of bank officers is
uncommon. I disagree with each of those assumptions.
I
Our opinion in
Kay, on which the majority relies, does
not address the issue in this case. It does, however,
illuminate
501
the problems with the Court's holding today. Ms. Kay was
convicted of making false statements under the Home Owners' Loan
Act, 12 U. S. C. §§ 1467(a) and (e) (1940 ed.). 303 U. S., at 3-4.
She had falsely stated that the amount of the claims she presented
for settlement was two to four times their actual value.
Id., at 5. Among the challenges that Kay pressed before this
Court was an argument that she could not be convicted under §
1467(a) because the Government produced no evidence that her false
statement had any effect on the actions of the Home Owners' Loan
Corporation.
Ibid. In rightly rejecting this argument, this
Court reasoned:
"Whether or not the Corporation would act favorably on the loan
is not a matter which concerns one seeking to deceive by false
information. The case is not one of an action for damages but of
criminal liability, and actual damage is not an ingredient of the
offense." Id., at 6.
There is a clear distinction between the concept of
materiality-whether the information provided
could
have played a proper role in the loan approval process-and the
concept of
reliance-whether the information
did playa
role in the process. Kay could not plausibly have contended that
her false statement was immaterial. Certainly a misrepresentation
regarding the proposed amount of settlement was relevant and could
have affected the Corporation's decision. Instead, she argued that
the charge was insufficient because it did not allege that the
application had been approved, i.
e., that her material
false statement had played a causal role. The Court, quite
properly, rejected that argument because the crime was complete
when the material false statement was made. Since the materiality
of the statement was not disputed, the Court had no occasion to
address the question presented by this case.
The difference between the issue in
Kay and the issue in
this case does, however, illustrate the importance of the Court's
holding today. Conceivably a prohibition against making intentional
false statements might encompass four different categories: (1) all
lies, including idle conversation;
502
(2) all lies intended to encourage a favorable response,
including mere flattery; (3) all material misstatements; or (4)
only those material misstatements that are relied upon by the
deceived decisionmaker.
Kay held that the coverage of one of
the predecessor statutes that became § 1014 is broader than the
fourth category. In my opinion, § 1014 embraces only the third
category. The Court, however, concludes that it encompasses all of
the second category, which I call the "flattery category" even
though that label does not adequately describe its breadth. As now
construed, § 1014 covers false explanations for arriving late at a
meeting, false assurances that an applicant does not mind if the
loan officer lights up a cigar, false expressions of enthusiasm
about the results of a football game or an election, as well as
false compliments about the subject of a family photograph. So long
as the false statement is made "for the purpose of influencing" a
bank officer, it violates § 1014.
Ante, at 499.
II
The history of § 1014 also refutes the Court's interpretation of
that statute. Prior to the 1948 codification, three of the statutes
that became a part of § 1014 included an express materiality
requirement. The others did not. The Reviser's Note states that the
amalgamation of these 13 statutes made no "change of substance" in
the law.1 The majority, today interpreting § 1014 as making a
substantial change in the law, concludes that the reviser was
"simply wrong."
Ante, at 497.
A more plausible explanation shows that the reviser was, in
fact, correct. Prior to the 1948 codification, no federal court
appears to have held that any of § 1014's predecessor statutes
encompassed immaterial statements. At least two cases, however, had
held or assumed that the nonexplicit statutes did contain a
materiality requirement. See
McClanahan v.
United
States, 12 F.2d 263, 264 (CA7
1 Historical and Revision Notes following § 1014, 18 U. S. C.,
p. 247.
503
1926); 2
United States v.
Kreidler, 11 F. Supp.
402, 403 (SD Iowa 1935).3 Given these federal cases and the absence
of any common-law precedent for punishing immaterial false
statements, it is far more likely that the revisers assumed that
all of these statutes included the common-law requirement of
materiality than that congressional silence was intended to make a
dramatic change in the law.4 In my judgment, the fact that the
materiality element had been expressly included in some of the
predecessor statutes, and only implicitly included in the others,
explains why the Reviser's Note could accurately state that the
omission of the express reference to materiality was not a "change
of substance." 5
At least three additional reasons support the conclusion that
the revisers correctly assumed that all of the federal statutes
criminalizing false statements included a materiality requirement
that was sometimes implicit and sometimes
2 "If the false statements charged and proved were wholly
frivolous and unrelated, it would in all probability be concluded
that they did not supply the basis for a prosecution under [the
Act]."
3 "We may assume that a statement ... not likely to influence
one exercising common prudence and caution, would not support the
charge .... [I]t must be relevant and material."
4 The Court argues that these cases are not persuasive because
they did not
hold that the relevant predecessor statutes to
§ 1014 contained a materiality requirement.
Ante, at
497-498, n. 20. Even if this is true, the fact remains that the
only reported cases to address this issue stated that these
statutes did contain a materiality requirement. The natural
inference is that the prevailing view at the time, and therefore
the prevailing view of the Congress that enacted § 1014, was that
all "false statements" had to be material to result in criminal
penalties. Instead of these cases, the Court asserts, Congress
"likely ... relied on the clear implication of our 1938 decision in
Kay v.
United States, 303 U. S. 1."
Ante,
at 498, n. 20. It is difficult to see how Congress could have
relied on this "clear implication" when the opinion does not in any
way address materiality, but instead holds that
reliance is
not a requirement of § 1014. See
United States v.
Goberman, 458 F.2d
226, 229
(CA3 1972);
United States
5 Historical and Revision Notes following § 1014,18 U. S. C., p.
247.
504
explicit. First, contrary to the Court's assertion, crimes
involving "false statements" have a common-law heritage that
includes an assumption of a materiality requirement. This
conclusion is consistent with our prior holding that the term
"misrepresentation" in § 10 of the Displaced Persons Act of 1948,
62 Stat. 1013, implicitly contained a materiality requirement. See
Fedorenko v.
United States, 449 U. S. 490, 507-508,
and n. 28 (1981). Today the Court discounts the significance of
that holding because it assumes that at common law there was a
critical difference between a "misrepresentation" and a "false
statement."
Ante, at 491-492, n. 10. However,
Kungys
v.
United States, 485 U. S. 759 (1988),
from which the Court draws this inference, made it perfectly clear
that "false statements" share a common-law ancestry with
"misrepresentations." 6 At common law, neither term included
immaterial falsehoods such as mere flattery. 7
6 "The term 'material' in § 1451(a) is not a hapax legomenon.
Its use in the context of
false statements to public
officials goes back as far as Lord Coke, who defined the crime of
perjury as follows:
"'Perjury is a crime committed, when a lawful oath is ministred
by any that hath authority, to any person, in any judicial
proceeding, who sweareth absolutely, and falsly in a manner
material to the issue, or cause in question, by their own act, or
by the subornation of others.' 3 E. Coke, Institutes 164 (6th ed.
1680).
"Blackstone used the same term, explaining that in order to
constitute 'the crime of wilful and corrupt
perjury' the
false statement 'must be in some point material to the
question in dispute; for if it only be in some trifling collateral
circumstance, to which no regard is paid,' it is not punishable. 4
W. Blackstone, Commentaries *137. See also 1 W. Hawkins, Pleas of
the Crown, ch. 27, §8, p. 433 (Curwood ed. 1824). Given these
common-law antecedents, it is unsurprising that a number of federal
statutes criminalizing
false statements to public officials
use the term 'material.''' 485 U. S., at 769 (some emphases
added).
See also Saks,
United States v. Gaudin: A Decision with
Material Impact, 64 Ford. L. Rev. 1157, 1163-1166 (1995) (tracing §
1001 and other federal false statement statutes back to the common
law).
7Contrary to the Court's assertion,
ante, at 491-492, n.
10, I do not assume that when Congress criminalizes an element of a
common-law crime, the federal offense carries with it every other
element of the
505
Second, at least 100 federal false statement statutes may be
found in the United States Code. About 42 of them contain an
express materiality requirement; approximately 54 do not.8 The
kinds of false statements found in the first category 9 are, to my
eyes at least, indistinguishable from those
common-law crime. I do presume, however, that when Congress
criminalizes an element of a common-law crime, it intends that
element to have the same meaning it had at common law.
8Judge Kozinski catalogued these statutes in his dissenting
opinion in United States v. Gaudin,
28 F.3d
943, 959-960, nn. 3 and 4 (CA9 1994). He made the assumption
(which I share) that a materiality requirement "is probably
implied" in everyone of these statutes that does not contain such
an express requirement.
Id., at 959.
9 See id., at 959, n. 3 ("7 U. S. C. § 13(a)(3) (felony to
knowingly make statement that 'was false or misleading with respect
to any material fact' in report required by statute or futures
association); 8 U. S. C. § 1160(b)(7) (penalizing knowing and
willful false statement of material fact in application for status
of special agricultural worker); 8 U. S. C. § 1225a(c)(6)
(penalizing knowing and willful false statement of material fact in
application for special status by virtue of entering U. S. before
Jan. 1, 1982); 8 U. S. C. § 1325(a) (penalizing improper entry into
U. S. by virtue of willful false statement of material fact); 10 U.
S. C. § 931 (perjury in military proceeding); 18 U. S. C. § 152
(maximum five year sentence for knowing and fraudulent receipt of
material amount of property with intent to defeat bankruptcy code);
18 U. S. C. § 542 (maximum prison term of two years for entry of
goods by means of material false statement); 18 U. S. C. § 1919
(maximum one year prison term for false statement of material fact
knowingly made to obtain unemployment compensation for federal
service); 19 U. S. C. § 1629(f)(2) (maximum five year prison term
for any person who knowingly and willfully covers up a material
fact from customs official); 19 U. S. C. § 1919 (maximum two year
prison term for knowingly making false statement of material fact
with intent to influence tariff adjustment); 19 U. S. C. § 2316
(maximum one year prison term for knowingly making false statement
of material fact when seeking relief from injury under section
2311); 19 U. S. C. § 2349 (maximum two year prison term for making
false statement of material fact for purposes of obtaining relief
from injury under Trade Act of 1974); 20 U. S. C. § 1097(b)
(maximum one year prison term for knowingly and willfully
concealing material information in connection with assignment of
federally insured student loan); 20 U. S. C. § 4442(c)(I) (maximum
one year prison term for knowingly making false statement of
material fact in seeking cultural and art development grants);
506
in the second category.lO Nor is there any obvious distinction
between the range of punishments authorized by the two different
groups of statutes. Moreover, some statutes,
22 U. S. C. § 618(a)(2) (maximum six month prison term for
willfully making false statement of material fact in registering to
distribute political propaganda); 22 U. S. C. § 2778(c) (maximum 10
year prison term for willfully making untrue statement of material
fact in report required for control of arms exports and imports);
26 U. S. C. § 7206(1) (maximum three year prison term for willfully
making false declaration as to material matter regarding income
taxes when under penalty of perjury); 26 U. S. C. § 9012(d)
(maximum five year prison term for knowingly and willfully making
misrepresentation of material fact during examination of campaign's
matching payment account); 29 U. S. C. § 439(b) (maximum one year
prison term for person who knowingly makes false statement of
material fact in report required under section 431); 29 U. S. C. §
461 (d) (maximum one year prison term for knowing misrepresentation
of material fact in report labor organization must file once it
assumes trusteeship over subordinate organization); 31 U. S. C. §
5324(b)(2) (prohibiting material omission or misstatement of fact
in report on monetary instruments transactions); 42 U. S. C. §
290cc-32 (maximum five year prison term for knowingly making false
statement of material fact in sale to state for items or services
funded by federal government under Medicare); 42 U. S. C. §300d-20
(same); 42 U. S. C. §300e-17(h) (maximum five year prison term for
knowingly and willfully making false statement of material fact in
[a health maintenance organization's] financial disclosure); 42 U.
S. C. §300w-8(1) (maximum five year prison term for knowingly and
willfully making false statement of material fact in sale to state
of items or services subsidized by federal government); 42 U. S. C.
§300x-56(b) (same); 42 U. S. C. §300dd-9 (sameunder formula grants
to states for care of AIDS patients); 42 U. S. C. §300ee-19(b)
(same-under funds for AIDS prevention); 42 U. S. C. § 707(a)(1)
(same-under funds for social security); 42 U. S. C. § 1320a7b(a)(1)
(maximum five year prison term for knowingly and willfully making
false statement of material fact in application for payments in
federally-approved plans for medical assistance); 42 U. S. C. §
1383a(a)(1) (maximum one year prison term for knowingly and
willfully making false statement of material fact in application
for Supplemental Security Income benefits); 42 U. S. C. § 1973i
(penalizing knowingly false information for purpose of establishing
eligibility to vote); 42 U. S. C. § 3795a (penalizing knowing and
willful misstatement or concealment of material fact in any
application or record required under chapter); 42 U. S. C. §
6928(d)(3)
[Footnote 10 is on p. 507J
507
such as the one we construed in
United States v.
Gaudin, 515 U.
S. 506 (1995), criminalize two equally culpable categories of
false statements but include an explicit materiality
(maximum two year prison term for knowingly making false
material statement in compliance documents); 42 U. S. C. §
6992d(b)(2) (maximum two year prison term for knowingly making
false material statement in compliance documents); 42 U. S. C. §
7413(c)(2) (maximum two year prison term for knowingly making false
material statement in documents required under chapter); 46 U. S.
C. § 1171(b) (any person who, in application for financial aid
under merchant marine act, willfully makes untrue statement of
material fact is guilty of misdemeanor); 46 U. S. C. §31306(d)
(maximum five year prison sentence for knowingly making false
statement of material fact in declaration of citizenship under
Shipping Act); 46 U. S. C. App. § 839 (maximum five year prison
term for knowingly making false statement of material fact to
secure required approval of Secretary of Transportation); 49 U. S.
C. App. § 1472 (maximum three year prison term for knowingly and
willfully falsifying or concealing a material fact to obtain
[Federal Aviation Administration] certificate); 50 U. S. C. §855
(maximum five year prison term for willfully making false statement
of material fact in registration statement); 50 U. S. C. App. §
1193(h) (maximum two year prison term for knowingly furnishing
information that is false or misleading in any material respect
regarding renegotiation of airplane contracts)") .
10 See id., at 960, n. 4 ("7 U. S. C. § 614(b-3)(3) (penalizing
those who make false statement in application for tax-payment
warrant); 7 U. S. C. § 2028(d) (punishing those who obtain funds
from a Puerto Rico block grant 'by ... false statement'); 7 U. S.
C. § 6407(e) (barring 'false or unwarranted statements' regarding
fluid milk products); 12 U. S. C. § 1782(a)(3) (penalizing false
statement in administration of insurance fund); 13 U. S. C. § 213
(penalties for perjury); 12 U. S. C. § 1847 (penalizing false
entries in book, report, or statement of bank holding company); 15
U. S. C. § 50 (penalizing false statement to [Federal Trade
Commission]); 15 U. S. C. § 645 (offenses and penalties for certain
crimes related to commerce and trade); 15 U. S. C. § 714m
(punishing knowingly false statement to Commodity Credit
Corporation); 15 U. S. C. § 1825(a)(2)(B) (penalizing false
statement in report required by Horse Protection Act); 16 U. S. C.
§ 83lt(b) (penalizing false statement to or on behalf of the
Tennessee Valley Authority); 18 U. S. C. § 287 (penalizing false
claims against U. S. government); 18 U. S. C. § 288 (penalizing
false claims for postal losses); 18 U. S. C. § 289 (penalizing
false claims for pensions); 18 U. S. C. § 924 (penalizing knowing
false statement in information gun dealers must provide); 18 U. S.
C. § 1011 (penalizing
508
requirement in one but not the other category. See id., at
524-525 (REHNQUIST, C. J., concurring). It seems farfetched that
Congress made a deliberate decision to include
knowing false statement in sale of mortgage to federal land
bank); 18 U. S. C. § 1012 (penalizing intentional false entry in
book of Department of Housing and Urban Development); 18 U. S. C. §
1014 (penalizing false statement to influence federal loan or
credit agency); 18 U. S. C. § 1015 (penalizing false statement in
naturalization proceeding); 18 U. S. C. § 1018 (penalizing public
official who knowingly falsifies official certificate or writing);
18 U. S. C. § 1020 (penalizing false statement regarding highway
projects); 18 U. S. C. § 1026 (penalizing false statement regarding
farm indebtedness for purpose of influencing Secretary of
Agriculture); 18 U. S. C. § 1027 (penalizing false statement in
documents required by [Employee Retirement Income Security Act of
1974]); 18 U. S. C. § 1158 (penalizing false statement to secure
Indian Arts & Crafts Board trademark); 18 U. S. C. § 1542
(penalizing willful and knowing false statement in passport
application); 18 U. S. C. § 1546 (penalizing false statement in
immigration documents); 18 U. S. C. § 1712 (penalizing
falsification of postal returns to increase compensation); 18 U. S.
C. § 1920 (penalizing false statement to obtain Federal employees'
compensation); 18 U. S. C. § 2386 (penalizing willful false
statement when registering certain organizations); 18 U. S. C. §
2388(a) (penalizing willful false statement with intent to
interfere with armed forces during war); 18 U. S. C. § 2424
(penalizing knowing and willful false statement about alien
procured or maintained for immoral purposes); 22 U. S. C. § 1980(g)
(penalizing false statement in seeking compensation for loss or
destruction of commercial fishing vessel or gear); 22 U. S. C. §
2197(n) (penalizing false statement regarding federal insurance of
investment in foreign nations); 26 U. S. C. § 7232 (penalizing
false statement regarding registration as manufacturer or dealer in
gasoline); 29 U. S. C. § 666(g) (penalizing false statement in
health and safety report required under this chapter); 30 U. S. C.
§820 (penalizing false statement in document required under
subchapter governing mine safety and health); 30 U. S. C. § 941
(penalizing false statement or representation in seeking benefits
under subchapter governing mine safety and health); 30 U. S. C. §
1232(d)(1) (penalizing false statement in report submitted with
reclamation fee); 30 U. S. C. § 1268(g) (penalizing false statement
in documents required by Federal program or Federal Lands program
regarding surface mining); 31 U. S. C. § 5322 (penalizing willful
violations of subchapter); 33 U. S. C. § 931 (penalizing false
statement for purpose of obtaining workers' compensation benefit);
33 U. S. C. § 990(b) (penalizing false statement to corporation
governing Saint Lawrence Seaway); 33 U. S. C. § 1319(c)(2)
509
or to omit a materiality requirement every time it created a
false statement offense. Far more likely, in my view, Congress
simply assumed-as the Government did in
Gaudinthat the
materiality requirement would be implied wherever it was not
explicit.
Third, § 1014 was revised at a time when a different view of
statutory interpretation held sway. When Congress enacted the
current version of the law in 1948, a period marked by a spirit of
cooperation between Congress and the Federal Judiciary, Congress
looked to the courts to play an important role in the lawmaking
process by relying on common-law tradition and common sense to fill
gaps in the law-even to imply causes of action and remedies that
were not set forth in statutory text. It was only three years
earlier that one of the greatest judges of the era-indeed, of any
era-had admonished us "not to make a fortress out of the
dictionary." Cabell v. Markham, 148 F.2d 737, 739 (CA2
(penalizing knowing false statement in record required by
chapter on navigation and navigable waters); 38 U. S. C. § 1987
(penalizing knowing false statement in application, waiver of
premium, or claim for benefits, for National Service Life Insurance
or U. S. government life insurance); 40 U. S. C. § 883(b)
(penalizing false statement to Pennsylvania Avenue Development
Corp.); 42 U. S. C. § 408 (penalizing false statement to obtain
social security benefits); 42 U. S. C. §
1761(0) (penalizing
false statement in connection with summer food service programs for
children at service institutions); 42 U. S. C. § 1973i(c)
(penalizing knowing false information for purpose of establishing
eligibility to vote); 42 U. S. C. § 3220 ([penalizing] false
statement to obtain financial assistance or defraud Secretary of
Department of Health and Human Services); 42 U. S. C. § 4912(c)
(penalizing false statement in documents filed pursuant to
chapter's noise control requirements); 43 U. S. C. § 1350(c)
(penalizing knowing false statement in application required under
subchapter on submerged public lands); 45 U. S. C. §231(l)(a)
(penalizing knowing false statement in report required by
subchapter on Rail Road Retirement Accounts); 45 U. S. C. § 359(a)
(penalizing knowing false statement to obtain unemployment
insurance); 49 U. S. C. Appx. § 2216 (penalizing U. S. officials
who knowingly make false statement regarding projects submitted for
approval of Secretary of Transportation)").
510
1945) (L. Hand, J.) The Court's approach to questions of
statutory construction has changed significantly since that time.11
The textual lens through which the Court views the work product of
the 1948 revisers is dramatically different from the contemporary
legal context in which they labored. In 1948, it was entirely
reasonable for Congress and the revisers to assume that the
Judiciary would imply a materiality requirement that was a routine
aspect of common-law litigation about false statements.
Indeed, subsequent history confirms the reasonableness of such
an assumption: The vast majority of judges who have confronted the
question have found an implicit materiality requirement in § 1014.
As the Court recognizes, all but one of the Courts of Appeals have
so held.
Ante, at 486, n. 3. Moreover, both in this case and
in Gaudin the prosecutor initially proceeded on the assumption that
a nonexplicit statute contained an implicit materiality
requirement. Only after it failed to convince us in Gaudin that the
materiality issue should be resolved by the judge rather than the
jury did the Government switch its position and urge us to reject
that assumption entirely.
III
Because precedent and statutory history refute the Court's
position, its decision today must persuade, if at all, on the basis
of its textual analysis. But congressional silence cannot be so
convincing when the resulting interpretation is so unlikely.12 Even
the Court's recent jurisprudence affirms
11 See Middlesex County Sewerage Authority v. National Sea
Clammers Assn.,
453 U.
S. 1, 24-26 (1981) (STEVENS, J., concurring in judgment in part
and dissenting in part).
12 In fact, the text of § 1014 supports the conclusion that
"false statement" was intended to cover only material false
statements. That statute forbids a person, in the relevant
circumstances, to make "any [1] false statement or [2] report, or
willfully overvalu[ing] any [3] land, [4] property or [5]
security." 18 U. S. C. § 1014. The four covered actions other than
"false statement[s]" are inherently material. Obviously the
overvaluing
511
that "[t]he purpose of Congress is the ultimate touchstone."
Gade v.
National Solid Wastes Management Assn.,
505 U. S. 88, 96
(1992) (internal quotation marks omitted). Mindful of this dictate,
the Court has routinely rejected literal statutory interpretations
that would lead to anomalous results. See
INS v.
Cardoza-Fonseca, 480 U. S. 421, 454 (1987)
(SCALIA, J., concurring in judgment) (citing cases). We have been
especially willing to reject a purely literal reading of a federal
statute that would, as here, expand its coverage far beyond any
common-law antecedentP And, as the majority
of any "land, property or security" will be material to any
relevant banking transaction. Similarly, the making of a "false
report" will presumably be inherently material since the
information requested on the report form will be that which the
bank deems "capable of influencing" its decision. Read in this
context, and drawing on standard statutory construction techniques,
see
Norfolk &
Western R. Co. v.
Train
Dispatchers, 499
U. S. 117, 129 (1991) (applying
"ejusdem generis" -that
general terms should be understood in context of specific ones);
Gustafson v.
Alloyd Co., 513 U. S. 561, 575 (1995)
(resolving statutory question problem with
"noscitur a
sociis" -that "a word is known by the company it keeps"),
"false statement" means those false statements that are
material.
13 For instance, in
United States v.
X-Citement Video,
Inc., 513 U. S.
64 (1994), we held that the "knowingly" requirement of the
Protection of Children Against Sexual Exploitation Act of 1977, 18
U. S. C. §2252, applied to the age of the individual visually
depicted. We interpreted the statute this way even though it flew
in the face of the "most natural grammatical reading." 513 U. S.,
at 68. To hold otherwise, we explained, would lead to results that
were "absurd." Similarly, in
Staples v.
United
States, 511 U. S.
600 (1994), we held that the National Firearms Act, 26 U. S. C.
§§ 5801-5872, contained an implicit
mens rea requirement
although one was not apparent on the face of the statute. "Section
5861(d) is silent concerning the
mens rea required for a
violation," we explained. 511 U. S., at 605. "Nevertheless, silence
on this point by itself does not necessarily suggest that Congress
intended to dispense with a conventional
mens rea element
.... "
Ibid.
An understanding of these cases also exposes the illogic of the
Government's and the Court's reliance on
United States v.
Shabani, 513 U.
S. 10 (1994). In
Shabani, lacking a clear textual
directive, we
declined to depart from the common-law
tradition of not requiring proof of an overt act
512
acknowledges, this would not be the first time that we have had
to interpret § 1014 so that it would not" 'make a surprisingly
broad range of unremarkable conduct a violation of federallaw.'"
Ante, at 498 (quoting
Williams v.
United
States, 458 U. S.
279, 286-287 (1982)).
Congress, the Court seems to recognize, could not have intended
that someone spend up to 30 years in prison for falsely flattering
a bank officer for the purpose of obtaining favorable treatment.14
Yet the Court justifies its interpretation of the statute by
positing that a literal reading of § 1014 will not "normally"
extend the statute "beyond the limit that a materiality requirement
would impose."
Ante, at 499. In making this assertion, the
Court correctly avoids relying on prosecutors not to bring
frivolous cases.15
to establish conspiracy. In this case, of course, the Government
asks us to do the opposite: to derogate the common law without
clear congressional approval.
14 Consider the following scenario. A crafty homeowner in need
of a mortgage, having learned that the bank's loan officer is a bow
tie aficionado, purchases his first bow tie to wear at their first
meeting. As expected, the loan officer is wearing such a tie,
which, incidentally, the prospective borrower considers downright
ugly. Nevertheless, thinking that flattery will increase the
likelihood that the officer will be favorably disposed to approving
the loan, the applicant swallows hard and compliments the officer
on his tie; he then volunteers the information that he too always
wears a bow tie. This is a lie. Under the majority's
interpretation, this person could spend 30 years in federal prison.
He made a "false statement." 18 U. S. C. § 1014. In fact, until
that day he had never worn a bow tie. And the statement was made
"for the purpose of influencing" the bank.
Ibid. The
applicant subjectively hoped that the loan officerflattered and
feeling a sartorial common ground-would be more likely to approve
his mortgage.
15 It is well settled that courts will not rely on
"prosecutorial discretion" to ensure that a statute does not
ensnare those beyond its proper confines. See
Baggett v.
Bullitt, 377
U. S. 360, 373-374 (1964) ("It will not do to say that a
prosecutor's sense of fairness and the Constitution would prevent a
successful ... prosecution for some of the activities seemingly
embraced within the sweeping statutory definitions");
Keyishian v.
Board of Regents of Univ. of State of N.
Y.,
385 U. S.
589, 599 (1967) ("It is no answer
513
Rather, it appears to have made an empirical judgment that false
statements will not "usually" be about a trivial matter, and that
the Government will "'relatively rare[lyJ''' be able to prove that
nonmaterial statements were made for the purpose "of influencing a
decision."
Ibid. I am not at all sure, nor do I know how the
Court determined, that attempted flattery is less common than false
statements about material facts. Even if it were, the "unusual"
nature of trivial statements provides scant justification for
reaching the conclusion that Congress intended such peccadillos to
constitute a felony.
IV
Today the Court misconstrues § 1014, its history, and our
precedents in holding that the statute does not contain a basic
materiality requirement. In doing so, the Court confidently asserts
that almost every court to interpret § 1014, the revisers of the
statute, and the courts discussing
Kay were all simply
wrong. Unwarranted confidence in one's own ability to ascertain the
truth has prompted many a victim of deception to make the false
statement that "flattery will get you nowhere." It now appears that
flattery may get you into a federal prison.
I respectfully dissent.
to say that the statute would not be applied in such a case").
Prosecutors necessarily enjoy much discretion and generally use it
wisely. But the liberty of our citizens cannot rest at the whim of
an individual who could have a grudge or, perhaps, just exercise
bad judgment.
514
The next page is purposely numbered 801. The numbers between 513
and 801 were intentionally omitted, in order to make it possible to
publish the orders with permanent page numbers, thus making the
official citations available upon publication of the preliminary
prints of the United States Reports.
515
OCTOBER 7, 1996 Affirmed for Absence of Quorum
No. 95-1733. UNITED STATES V. HATTER, JUDGE, UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, ET AL. C. A.
Fed. Cir. Because the Court lacks a quorum, 28 U. S. C. § 1, and
since a majority of the qualified Justices are of the opinion that
the case cannot be heard and determined at the next Term of the
Court, the judgment is affirmed under 28 U. S. C. § 2109, which
provides that under these circumstances the Court shall enter its
order affirming the judgment of the court from which the case was
brought for review with the same effect as upon affirmance by an
equally divided Court. JUSTICE STEVENS, JUSTICE O'CONNOR, JUSTICE
GINSBURG, and JUSTICE BREYER took no part in the consideration or
decision of this petition. Reported below:
64
F.3d 647.
Certiorari Granted-Vacated and Remanded
No. 95-1708. GREATER NEW ORLEANS BROADCASTING ASSN., INC., ET
AL. V. UNITED STATES ET AL. C. A. 5th Cir. Certiorari granted,
judgment vacated, and case remanded for further consideration in
light of 44
Liquormart, Inc. v.
Rhode Island,
517 U. S. 484
(1996). Reported below:
69 F.3d
1296.
No. 95-2010. CROUSE V. UNITED STATES. C. A. 6th Cir. Certiorari
granted, judgment vacated, and case remanded for further
consideration in light of
Koon v.
United States,
518 U. S. 81
(1996). Reported below:
78 F.3d
1097.
No. 95-2090. FIELDS, DIRECTOR, OKLAHOMA DEPARTMENT OF
CORRECTIONS, ET AL. V. BATTLE ET AL. C. A. 10th Cir. Certiorari
granted, judgment vacated, and case remanded for further
consideration in light of the Prison Litigation Reform Act of 1996,
Pub. L. No. 104-134, 110 Stat. 1321. Reported below:
81 F.3d
172.
Comments
Be the first to comment
Leave a Comment