SUPREME COURT OF THE UNITED STATES

                                    --------
                                   No. 95-1228
                                    --------
        UNITED STATES, PETITIONER v. JERRY E. WELLS AND KENNETH R. STEELE
                                 ___


       ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
                                 EIGHTH CIRCUIT

                               [February, 26 1997]

  JUSTICE STEVENS, dissenting.

  Violation of 18 U. S. C. S1014 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 S1014 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 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. S1467(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

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2                            UNITED STATES v. WELLS
                                          ____

Court was an argument that she could not be convicted under S1467(a) because the
Government produced no evidence that her false statement had any effect on the
actions of the 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 play a 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; (2) all lies
intended to encourage a favorable response, including mere flattery; (3) all
material misstatements; or (4) only those material

                                95-1228 - DISSENT

                             UNITED STATES v. WELLS                            3
                                          ____

misstatements that are relied upon by the deceived decisionmaker. Kay held that
                                                                  ___
the coverage of one of the predecessor statutes that became S1014 is broader
than the fourth category. In my opinion, S1014 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, S1014 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 S1014. Ante, at 17. 
                                                               ____
                                       II
  The history of S1014 also refutes the Court's interpretation of that statute.
Prior to the 1948 codification, three of the statutes that became a part of
S1014 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. (Ftnote. 1) The majority, today interpreting S1014 as
                          (Ftnote. 1)
making a substantial change in the law, concludes that the reviser was "simply
wrong." Ante, at 15. 
        ____
  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 S1014'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
                             __________    _____________





























                    
____________________

   1)  Historical and Revision Notes following S1014, 18 U. S. C., p. 247.
   1)  

                                95-1228 - DISSENT

4                            UNITED STATES v. WELLS
                                          ____

263, 264 (CA7 1926); (Ftnote. 2) United States v. Kreidler, 11 F. Supp. 402, 403
                     (Ftnote. 2) _____________    ________
(SD Iowa 1935). (Ftnote. 3) Given these federal cases and the absence of any
                (Ftnote. 3)
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. (Ftnote. 4) In my judgment, the fact that the
                                   (Ftnote. 4)
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." (Ftnote. 5) 
                                             (Ftnote. 5)
  At least three additional reasons support the conclusion that the revisers
correctly assumed that all of the





















                    
____________________

   2)  "If the false statements charged and proved were wholly frivolous and
   2)  
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
   3)  
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
   4)  
hold that the relevant predecessor statutes to S1014 contained a materiality
____
requirement. Ante, at 16, 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 S1014,
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]." Ibid. 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 S1014. See
                                    ________
United States v. Goberman, 458 F. 2d 226, 229 (CA3 1972); United States v.
_____________    ________                                 _____________
Kernodle, 367 F. Supp. 844, 851-852 (MDNC 1973).  
________
   5)  Historical and Revision Notes following S1014, 18 U. S. C., p. 247.
   5)  

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                             UNITED STATES v. WELLS                            5
                                          ____

federal statutes criminalizing false statements included a materiality
requirement that was sometimes implicit and sometimes 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 S10 of the Displaced Persons Act of 1948, 62 Stat. 1013,
implicitly contained a materiality requirement. See Federenko 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 9, 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." (Ftnote. 6) At common
                                                       (Ftnote. 6)
law,






















                    
____________________

   6)  "The term `material' in S1451(a) is not a hapax legomenon. Its use in
   6)  
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 falsely 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, S8, 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 S1001 and other federal false
statement statutes back to the common law).

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6                            UNITED STATES v. WELLS
                                          ____

neither term included immaterial falsehoods such as mere
flattery. (Ftnote. 7) 
          (Ftnote. 7)
  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. (Ftnote. 8) The kinds of false statements found in the
                         (Ftnote. 8)
first category (Ftnote. 9) are, to my eyes at least,
               (Ftnote. 9)
                    
____________________

   7)  Contrary to the Court's assertion, ante, at 9-10, n. 10, I do not assume
   7)                                     ____
that when Congress criminalizes an element of a common-law crime, the federal
offense carries with it every other element of the 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. 
   8)  Judge Kozinski catalogued these statutes in his dissenting opinion in
   8)  
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 every one 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. S13(a)(3) (felony to knowingly make
   9)      ___
statement that `was false or misleading with respect to any material fact' in
report required by statute or futures association); 8 U. S. C. S1160(b)(7)
(penalizing knowing and willful false statement of material fact in application
for status of special agricultural worker); 8 U. S. C. S1225a(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. S1325(a)
(penalizing improper entry into U. S. by virtue of willful false statement of
material fact); 10 U. S. C. S931 (perjury in military proceeding); 18 U. S. C.
S152 (maximum five year sentence for knowing and fraudulent receipt of material
amount of property with intent to defeat bankruptcy code); 18 U. S. C. S542
(maximum prison term of two years for entry of goods by means of material false
statement); 18 U. S. C. S1919 (maximum one year prison term for false statement
of material fact knowingly made to obtain unemployment compensation for federal
service); 19 U. S. C. S1629(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. S1919 (maximum two year prison term for knowingly making false
statement of material fact with intent to influence tariff adjustment); 19
U. S. C. S2316 (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. S2349 (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. S1097(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. S4442(c)(1) (maximum one year
prison term for knowingly making false statement of material fact in seeking
cultural and art development grants); 22 U. S. C. S618(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. S2778(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. S7206(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.
S9012(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. S439(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. S461(d) (maximum one year prison term for knowing

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                             UNITED STATES v. WELLS                            7
                                          ____















                    
____________________

misrepresentation of material fact in report labor organization must file once
it assumes trusteeship over subordinate organization); 31 U. S. C. S5324(b)(2)
(prohibiting material omission or misstatement of fact in report on monetary
instruments transactions); 42 U. S. C. S290cc-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. S300d-20
(same); 42 U. S. C. S300e-17(h) (maximum five year prison term for knowingly and
willfully making false statement of material fact in an HMO's financial
disclosure); 42 U. S. C. S300w-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. S300x-56(b) (same);
42 U. S. C. S300dd-9 (same - under formula grants to states for care of AIDS
patients); 42 U. S. C. S300ee-19(b) (same - under funds for AIDS prevention); 42
U. S. C. S707(a)(1) (same - under funds for social security); 42 U. S. C.
S1320a-7b(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. S1383a(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. S1973i (penalizing knowingly false information for purpose of
establishing eligibility to vote); 42 U. S. C. S3795a (penalizing knowing and
willful misstatement or concealment of material fact in any application or
record required under chapter); 42 U. S. C. S6928(d)(3) (maximum two year prison
term for knowingly making false material statement in compliance documents); 42
U. S. C. S6992d(b)(2) (maximum two year prison term for knowingly making false
material statement in compliance documents); 42 U. S. C. S7413(c)(2) (maximum
two year prison term for knowingly making false material statement in documents
required under chapter); 46 U. S. C. S1171(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. S31306(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. S839 (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. S1472
(maximum three year prison term for knowingly and willfully falsifying or
concealing a material fact to obtain FAA certificate); 50 U. S. C. S855 (maximum
five year prison term for willfully making false statement of material fact in
registration statement); 50 U. S. C. App. S1193(h) (maximum two year prison term
for knowingly furnishing information that is false or misleading in any material
respect regarding renegotiation of airplane contracts").

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8                            UNITED STATES v. WELLS
                                          ____

indistinguishable from those in the second category. (Ftnote. 10)
                                                     (Ftnote. 10)
                    
____________________

   10)  See id., at 960, n. 4 ("7 U. S. C. S614(b-3)(3) (penalizing those who
   10)      ___
make false statement in application for tax-payment warrant); 7 U. S. C.
S2028(d) (punishing those who obtain funds from a Puerto Rico block grant "by
. . . false statement"); 7 U. S. C. S6407(e) (barring "false or unwarranted
statements" regarding fluid milk products); 12 U. S. C. S1782(a)(3) (penalizing
false statement in administration of insurance fund); 13 U. S. C. S213
(penalties for perjury); 12 U. S. C. S1847 (penalizing false entries in book,
report, or statement of bank holding company); 15 U. S. C. S50 (penalizing false
statement to FTC); 15 U. S. C. S645 (offenses and penalties for certain crimes
related to commerce and trade); 15 U. S. C. S714m (punishing knowingly false
statement to Commodity Credit Corporation); 15 U. S. C. S1825(a)(2)(B) (penal-
izing false statement in report required by Horse Protection Act); 16 U. S. C.
S831t(b) (penalizing false statement to or on behalf of the Tennessee Valley
Authority); 18 U. S. C. S287 (penalizing false claims against U. S. government);
18 U. S. C. S288 (penalizing false claims for postal losses); 18 U. S. C. S289
(penalizing false claims for pensions);  18 U. S. C. S924 (penalizing knowing
false statement in information gun dealers must provide); 18 U. S. C. S1011
(penalizing knowing false statement in sale of mortgage to federal land bank);
18 U. S. C. S1012 (penalizing intentional false entry in book of Department of
Housing and Urban Development); 18 U. S. C. S1014 (penalizing false statement to
influence federal loan or credit agency); 18 U. S. C. S1015 (penalizing false
statement in naturalization proceeding); 18 U. S. C. S1018 (penalizing public
official who knowingly falsifies official certificate or writing); 18 U. S. C.
S1020 (penalizing false statement regarding highway projects); 18 U. S. C. S1026
(penalizing false statement regarding farm indebtedness for purpose of
influencing Secretary of Agriculture); 18 U. S. C. S1027 (penalizing false
statement in documents required by ERISA); 18 U. S. C. S1158 (penalizing false
statement to secure Indian Arts & Crafts Board trademark); 18 U. S. C. S 1542
(penalizing willful and knowing false statement in passport application); 18
U. S. C. S1546 (penalizing false statement in immigration documents); 18
U. S. C. S1712 (penalizing falsification of postal returns to increase compen-
sation); 18 U. S. C. S1920 (penalizing false statement to obtain Federal
employees' compensation); 18 U. S. C. S2386 (penalizing willful false statement
when registering certain organizations); 18 U. S. C. S2388(a) (penalizing
willful false statement with intent to interfere with armed forces during war);
18 U. S. C. S2424 (penalizing knowing and willful false statement about alien
procured or maintained for immoral purposes); 22 U. S. C. S1980(g) (penalizing
false statement in seeking compensation for loss or destruction of commercial
fishing vessel or gear); 22 U. S. C. S2197(n) (penalizing false statement
regarding federal insurance of investment in foreign nations); 26 U. S. C. S7232
(penalizing false statement regarding registration as manufacturer or dealer in
gasoline); 29 U. S. C. S666(g) (penalizing false statement in health and safety
report required under this chapter); 30 U. S. C. S820 (penalizing false
statement in document required under subchapter governing mine safety and
health); 30 U. S. C. S941 (penalizing false statement or representation in
seeking benefits under subchapter governing mine safety and health); 30 U. S. C.
S1232(d)(1) (penalizing false statement in report submitted with reclamation
fee); 30 U. S. C. S1268(g) (penalizing false statement in documents required by
Federal program or Federal Lands program regarding surface mining); 31 U. S. C.
S5322 (penalizing willful violations of subchapter); 33 U. S. C. S931 (penal-
izing false statement for purpose of obtaining workers' compensation benefit);
33 U. S. C. S990(b) (penalizing false statement to corporation governing Saint
Lawrence Seaway); 33 U. S. C. S1319(c)(2) (penalizing knowing false statement in

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                             UNITED STATES v. WELLS                            9
                                          ____




































                    
____________________

record required by chapter on navigation and navigable waters); 38 U. S. C.
S1987 (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. S883(b) (penalizing false statement to Pennsylvania
Avenue Development Corp.); 42 U. S. C. S408 (penalizing false statement to
obtain social security benefits); 42 U. S. C. S 1761(o) (penalizing false
                                                    ___
statement in connection with summer food service programs for children at
service institutions); 42 U. S. C. S1973i(c) (penalizing knowing false
information for purpose of establishing eligibility to vote); 42 U. S. C. S3220
([penalizing] false statement to obtain financial assistance or defraud Sec-
retary of Department of Health and Human Services); 42 U. S. C. S4912(c)
(penalizing false statement in documents filed pursuant to chapter's noise
control requirements); 43 U. S. C. S1350(c) (penalizing knowing false statement
in application required under subchapter on submerged public lands); 45 U. S. C.
S231(l)(a) (penalizing knowing false statement in report required by subchapter
    ___
on Rail Road Retirement Accounts); 45 U. S. C. S359(a) (penalizing knowing
false statement to obtain unemployment insurance); 49 U. S. C. AppS2216
(penalizing U. S. officials who knowingly make false statement regarding
projects submitted for approval of Secretary of Transportation").

                                95-1228 - DISSENT

10                           UNITED STATES v. WELLS
                                          ____

Nor is there any obvious distinction between the range of punishments authorized
by the two different groups of statutes. Moreover, some statutes, such as the
one we construed in United States v. Gaudin, 515 U. S. ___ (1995), criminalize
                    ______________   ________
two equally culpable categories of false statements but include an explicit
materiality requirement in one but not the other category. See id., ___ (slip
                                                              ____
op., at 2-3) (REHNQUIST, C. J., concurring). It

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                             UNITED STATES v. WELLS                           11
                                          ____

seems farfetched that Congress made a deliberate decision to include 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
Gaudin - that the materiality requirement would be implied wherever it was not
______
explicit.
  Third, S1014 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
                                   ______    _______
1945). The Court's approach to questions of statutory construction has changed
significantly since that time. (Ftnote. 11) The textual lens through which the
                               (Ftnote. 11)
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 S1014. As the Court recog-



























                    
____________________

   11)  See Middlesex County Sewerage Authority v. National Sea Clammers Assn.,
   11)      ___________________________________    ____________________________
453 U. S. 1, 24-26 (1981) (STEVENS, J., concurring in judgment in part and
dissenting in part).

                                95-1228 - DISSENT

12                           UNITED STATES v. WELLS
                                          ____

nizes, all but one of the Courts of Appeals have so held. Ante at 3-4, 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. (Ftnote. 12) Even the Court's recent
                               (Ftnote. 12)
jurisprudence affirms that "[t]he purpose of Congress is the ultimate
touchstone." Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 96
             ____    ______________________________________
(1992) (internal quotations omitted). Mindful of this dictate, the Court























                    
____________________

   12)  In fact, the text of S1014 supports the conclusion that "false
   12)  
statement" was intended to cover only material false statements. That statute
forbids a person, in the relevant circumstances, from making "any [1] false
statement or [2] report, or willfully overvalu[ing] any [3] land, [4] property
or [5] security."  18  U. S. C. S1014. The four covered actions other than
"false statement[s]" are inherently material.  Obviously the overvaluing 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 banks 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., Inc., 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.

                                95-1228 - DISSENT

                             UNITED STATES v. WELLS                           13
                                          ____

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
antecedent. (Ftnote. 13) And, as the majority acknowledges, this would not be
            (Ftnote. 13)
the first time that we have had to interpret S1014 so that it would not "`make
a surprisingly broad range of unremarkable conduct a violation of federal
law.'" Ante, at 17 (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






















                    
____________________

   13)  For instance, in United States v. X-Citement Video, Inc., 513  U. S. 64
   13)                   _____________    ______________________
(1994), we held that the "knowingly" requirement of the Protection of Children
Against Sexual Exploitation Act of 1977, 18 U. S. C. S2252, 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." Id., 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. SS5801-5872, 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 ex-
                                 ________
plained. Id., at 605. "Nevertheless, silence on this point by itself does not
         ___
necessarily suggest that Congress intended to dispense with a traditional 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 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. 

                                95-1228 - DISSENT

14                           UNITED STATES v. WELLS
                                          ____

obtaining favorable treatment. (Ftnote. 14) Yet the Court justifies its
                               (Ftnote. 14)
interpretation of the statute by positing that a literal reading of S1014 will
not "normally" extend the statute "beyond the limit that a materiality
requirement would impose." Ante, at 17. In making this assertion, the Court
                           ____
correctly avoids relying on prosecutors not to bring frivolous
cases. (Ftnote. 15) Rather, it appears to have made an empirical judgment that
       (Ftnote. 15)
false statements will not "usually" be about a trivial matter, and that the
government will "`relatively rare[ly]'" be able to prove that nonmaterial
statements were made for the purpose "of




















                    
____________________

   14)  Consider the following scenario. A crafty home owner in need of a
   14)  
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. S1014. 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 officer - flattered 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
   15)  
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 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.

                                95-1228 - DISSENT

                             UNITED STATES v. WELLS                           15
                                          ____

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 S1014, 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 S1014, 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.