* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in Local Rule

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40368

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRED ROBINSON,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

(1:94-CR-86)

March 18, 1996

Before POLITZ, Chief Judge, DeMOSS and DENNIS, Circuit Judges.

POLITZ, Chief Judge: *

Convicted of two counts of perjury, 18 U.S.C. § 1623, Fred R obinson appeals,

contending that the statements found perjurious were not material to the matter then before

the court and, further , that the prosecution should have been dismissed as vindictive. We

reverse the convictions and vacate the sentences.

Background

In March 1994, Robinson and several others were indicted for conspiring to assist his1 Fed.R.Crim.P. 29.

2 The prosecution dismissed one perjury count before trial.

2 brother Clarence to escape from custody, aiding and assisting in that escape, and possession

of a firearm during or in relation to a crime of violence. During his detention prior to trial,

Robinson was placed in solitary confinement and shackled when allowed out of his cell. He

moved for alteration of the conditions of his confine ment, alleging that certain conditions

violated his due process rights. The district court referred the motion to a magistrate judge

for an evidentiar

y hearing and recommendation. At this hearing, Robinson testified

concerning the conditions of his pretrial confinement and stated that he had never threatened

any jailers; sp ecifically, he testified that he did not say to Jefferson County jailer David

Prejean “I should have shot when I had the chance.” On recommendation of the magistrate

judge the district judge denied the motion on the grounds that the court lacked authority to

grant the relief therein sought.

While awaiting trial, Robinson was indicted on three counts of perjury based on his

testimony before the magistrate judge on the aforementioned motion. A motion to dismiss

the perjury indictment as being the product of prosecutorial vindictiveness was denied. At

trial of the perjury count several witnesses testified that Robinson had made the threats.

Robinson offered no evi dence but at the close of the government’s case filed a Rule 29

motion to acquit for insufficient evidence. 1 The motion was denied. The court instructed

the jury that the subject statements we re material to the issue before the court in the

magistrate judge’s hearing. The jury returned a verdict of guilty on the two counts submitted

to it. 2 Robinson appeals.

Analysis

Robinson was convicte d under 18 U.S.C. § 1623. This statute, captioned “False3 United States v. Lindell , 881 F.2d 1313, 1326 (5th Cir. 1989) (emphasis added), cert

.

denied , 493 U.S. 1087 and 496 U.S. 926 (1990).

4 See United States v. Abroms , 947 F.2d 1241 (5th Cir. 1991) (stating that a

misrepresentation is material if it has the natural tendency to influence the decision of the

tribunal on the issue to which it is addressed), cert

. denied , 505 U.S. 1204 (1992).

3 declarations before grand jury or court,” makes it a crime to “knowingly make[ ] any false

material declaration” while “under oath . . . in any proceeding before or ancillary to any

court or grand jury of the United States.” Robinson contends that the district court erred in

holding that his alleged false statements were material to the issue before the court.

Robinson’s claim is essentially a challenge to the denial of his Rule 29 motion for

judgment of acquittal. When the denial of a Rule 29 motion is challenged, “[t]he standard

of review

. . . is whether ‘viewing the evidence presented most favorable to the Government,

a reasonable minded juror could accept the relevant and admissible evidence as [adequate]

and sufficient to support the conclusion of the defendant’ s guilt beyond a reasonable

doubt.’” 3 For a statement to be material under 18 U.S.C. § 1623, it must have been capable

of influencing the tribunal on a pending issue. 4 Robinson maintains that his denial that he

threatened the jailers could not have influenced the court on the issue before it because the

court ruled that it lacked authority to grant the relief sought in the pending motion. Robinson

contends that because the district court lacked jurisdiction on the conditions of confinement

motion, there effectively was no issue before the court upon which the tribunal could have

been influenced.

We entertain no doubt that Robinson lied to the court while under oath. We likewise

entertain no doubt that the prosecution failed to establish the essential element of materiality,

an imperative for a conviction under section 1623, because the district court, before whom

the perjury occurred, lacked the authority to grant relief on the motion on which the5 United States v. Ward , 757 F.2d 616 (5th Cir. 1985).

4 perjurious testimony was given. Robinson’s perjury, though contemptuous of the court,

could not have influenced the court on the issue of Robinson’s pretrial confinement because

the court had no jurisdiction to consider that issue. We conclude, as a matter of law, that the

evidence failed to establish that the misstatements were material under 18 U.S.C. § 1623 and,

accordingly, we reverse the perjury convictions and vacate the sentences thereon.

Robinson next challenges the district court’s denial of his motion to dismiss for

vindictive prosecution. He contends that he was subjected to more severe punishment for

exercising a protected right, specifically the right to challenge the conditions of his pretrial

confinement. He maintains that the prosecution was designed to deter him from taking the

stand.

In light of our reversal of the perjury convictions and our vacating of the sentences

imposed, the vindictive prosecution case is mooted. Were it not so, we would affirm the trial

court’s dismissal of the vindictive prosecution challenge because it cannot be gainsaid that

a prosecution for an offense based on conduct separate and distinct from a prior offense does

not, without more, constitute vindictive prosecution. 5

Convictions REVERSED; sentences VACATED.