19 F.4th 248
3rd Cir.2021Background:
- Joseph Johnson, obsessed with Bill Cosby litigation, posed as an attorney and hand-delivered a falsified "Praecipe to Attach Exhibit 'A'" to the civil docket in Andrea Constand’s Eastern District of Pennsylvania lawsuit; the attached unsigned IRS referral form accused Constand of failing to report lawsuit income.
- The Clerk uploaded the filing to the docket, Troiani (Constand’s counsel) was notified, and the presiding judge entered an order striking the fraudulent praecipe and exhibit as not filed by the purported attorney.
- FBI investigation linked the "Tre Anthony" emails to Johnson, found Johnson’s fingerprints on the envelope, and showed he accessed the civil docket repeatedly; a grand jury indicted Johnson under 18 U.S.C. § 1001 (false statements) and 18 U.S.C. § 1028A (aggravated identity theft).
- After a three-day jury trial Johnson was convicted on both counts, moved for acquittal (Rule 29) and a new trial, was denied, and was sentenced to 32 months imprisonment; he appealed.
- On appeal Johnson argued the Government failed to prove the § 1001 materiality element; the District Court’s jury instruction issue (alleged constructive amendment) was also raised but the Third Circuit resolved the case on materiality.
- The Third Circuit reversed: although the filing was false and disruptive, the Government produced no evidence showing the false filing was capable of influencing any specific judicial decision by the only decisionmaker it relied on (the Judge), so materiality was not proven beyond a reasonable doubt.
Issues:
| Issue | Government's Argument | Johnson's Argument | Held |
|---|---|---|---|
| Whether the false praecipe was "material" under 18 U.S.C. § 1001 | The filing was on the court docket, the Judge testified he consults the docket to make decisions, and he struck the filing—so it was capable of, and did, influence judicial action | The Government failed to identify any particular judicial decision the praecipe could influence; docketing and clerical deletion are not proof of materiality | Reversed convictions for lack of materiality: no evidence showed the praecipe could reasonably influence any specific decision by the Judge |
| Whether the District Court constructively amended the indictment by instructing jury on "making or using" a false document when indictment charged "making" | Government conceded constructive amendment but argued no prejudice | Johnson contended the instruction impermissibly broadened the indictment | Court did not decide on the merits because materiality reversal was dispositive; noted Government conceded constructive amendment |
Key Cases Cited
- United States v. Gaudin, 515 U.S. 506 (U.S. 1995) (materiality requires a natural tendency or capability to influence the decisionmaker)
- Kungys v. United States, 485 U.S. 759 (U.S. 1988) (falsity and materiality are distinct § 1001 requirements)
- United States v. McBane, 433 F.3d 344 (3d Cir. 2005) (materiality does not require actual reliance)
- United States v. Litvak, 808 F.3d 160 (2d Cir. 2015) (receipt or referral alone insufficient to prove materiality without showing specific decision influenced)
- United States v. Camick, 796 F.3d 1206 (10th Cir. 2015) (filing a provisional application to PTO was not material where no decision existed to influence)
- United States v. Finn, 375 F.3d 1033 (10th Cir. 2004) (government must show agency’s purpose/use of documents to prove materiality)
- United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) (distinguishes relevance from materiality; jury decides materiality)
- United States v. Moyer, 674 F.3d 192 (3d Cir. 2012) (elements of a § 1001 offense)
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (U.S. 2018) (plain-error review may consider the entire record)