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No. 96-203. Argued February 25, 1997-Decided May 12, 1997

Petitioner Johnson testified before a federal grand jury, investigating, inter alia, the disposition of proceeds from her boyfriend's alleged drug trafficking, that she had obtained tens of thousands of dollars to improve her home from a box of cash given her late mother by one Talcott. Subsequently, she was charged with violating 18 U. S. C. § 1623, which proscribes "knowingly mak[ing] any false material declaration" under oath before a grand jury. At her trial, it was revealed that her boyfriend had negotiated the purchase of her home and had an interest in a corporation whose checks had been used to help pay for the property, and that Talcott had died several years before the time he allegedly gave her mother the money. Johnson did not object when, in accordance with then-extant Circuit precedent, the judge instructed the jury that materiality was a question for him to decide, and that he had determined that her statements were material. Johnson was convicted of perjury, but before her appeal, this Court ruled, in United States v. Gaudin, 515 U. S. 506, that the materiality of a false statement must be decided by a jury rather than a trial judge. On appeal, Johnson's claim that her conviction was invalid under Gaudin was reviewed by the Eleventh Circuit pursuant to Federal Rule of Criminal Procedure 52(b), which allows plain errors affecting substantial rights to be noticed even though no objection has been made. Following the analysis outlined in United States v. Olano, 507 U. S. 725, the court assumed, arguendo, that the District Court's failure to submit materiality to the jury constituted "error" that was "clear or obvious." However, it concluded that any such error did not affect "substantial rights" because its independent review of the record showed that there was "overwhelming" evidence of materiality and that no reasonable juror could conclude that Johnson's false statements about the money's source were not material to the grand jury's investigation.

Held: The trial court's action in this case was not "plain error" of the sort which an appellate court may notice under Rule 52(b).

(a) Since § 1623's text leaves no doubt that materiality is an element of perjury, Gaudin dictates that materiality in this case be decided by the jury, not the court. Johnson's failure to timely assert that right before the trial court ordinarily would result in forfeiture of the right



pursuant to Rule 30. However, Rule 52(b) mitigates Rule 30 and, contrary to Johnson's argument, governs her direct appeal. The Olano test for applying Rule 52(b) requires that there be (1) error, (2) that is plain, and (3) that affects substantial rights. If these three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Pp. 465-466.

(b) The first prong of Olano is satisfied here, as Gaudin must be applied to Johnson's case on direct review. See Griffith v. Kentucky, 479 U. S. 314, 328. The second prong is met as well. In a case such as this-where the law at the time of trial was settled and clearly contrary to the law at the time of appeal-it is sufficient that the error be plain at the time of appellate consideration. Even assuming that the third prong is also satisfied, a court must still determine whether the forfeited error meets the fourth prong before it may exercise its discretion to correct the error. In this case the fourth question must be answered in the negative. Materiality was essentially uncontroverted at trial and has remained so on appeal. Johnson has presented no plausible argument that her false statement under oath-lying about the source of the money she used to improve her home-was somehow not material to the grand jury investigation. It would be the reversal of her conviction, not the failure to notice the error, that would seriously affect the fairness, integrity, or public reputation of judicial proceedings. pp. 466-470.

82 F.3d 429, affirmed.

REHNQUIST, C. J., delivered the opinion of the Court, which was unanimous except insofar as SCALIA, J., did not join Parts II-B and II-C.

William J. Sheppard argued the cause for petitioner.

With him on the briefs were D. Gray Thomas and Elizabeth L. White.

Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney General Keeney, and Jonathan E. Nuechterlein. *

*Briefs of amici curiae urging reversal were filed for the National Association of Criminal Defense Lawyers by Neal Goldfarb, Barbara Bergman, and Blair G. Brown; and for David R. Knoll by Stephen L. Braga.

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