UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5639

AARON R. DAVIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CR-95-144-A)

Argued: December 6, 1996

Decided: February 24, 1997

Before WIDENER, MURNAGHAN, and NIEMEYER,

Circuit Judges.

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Reversed and remanded for a new trial by unpublished per curiam

opinion. Judge Niemeyer wrote a dissenting opinion.

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COUNSEL

ARGUED: Frank Salvato, Alexandria, Virginia, for Appellant. Katherine Mary Kelly, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F.

Fahey, United States Attorney, Elisabeth Sachs, Special Assistant

United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Aaron Davis was convicted of making false statements to a grand

jury. Davis, an inmate of the Lorton Reformatory Correctional Complex, resided in the cell block occupied by Michael Martin, another

Lorton inmate, who was killed in the cell block. As a result, the testimony of Davis was sought by the grand jury investigating the death

and probable murder of Martin. Brought before the grand jury, Davis

first declined to answer questions, asserting the Fifth Amendment to

the Constitution. However, having stated that he knew he was not

involved in Martin's death, he was told that he had no basis for assertion of the Fifth Amendment on the grounds of self-incrimination.

Davis also requested an attorney, but after being informed that a lawyer is not allowed to be present inside the grand jury room, Davis testified before the grand jury that he did not see James Cowan fighting

or arguing with Martin.

When Cowan was tried for the murder of Martin, Davis testified

that he saw Cowan and Martin fighting on the night of Martin's death.

Following Cowan's trial (and conviction) of first degree murder, an

indictment was returned charging Davis under 18 U.S.C. § 1623 with

false declarations either before the grand jury or at Cowan's trial. At

Davis' trial, the government presented proof that the grand jury testimony was not true. The district court instructed the jury that whether

Davis' statements before the grand jury were material was a question

to be decided by the court, not the jury. The district court ruled that

Davis' statements to the grand jury were material. As a result, Davis

was convicted and sentenced to 60 months in prison, two years of

supervised release and a $50 special assessment.

I.

On appeal, Davis principally relied on United States v. Gaudin, ___

U.S. ___, 115 S.Ct. 2310 (1995), which made materiality a factual

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question to be decided by the jury, not the court. The Supreme Court

held that:

The Constitution gives a criminal defendant the right to

have a jury determine, beyond a reasonable doubt, his guilt

of every element of the crime with which he is charged. The

trial judge's refusal to allow the jury to pass on the "materiality" of Gaudin's false statements infringed that right.

Gaudin, 115 S.Ct. at 2320. Prior to the Gaudin decision, in the Fourth

Circuit the determination of materiality was treated as a question of

law to be resolved by the court. See United States v. Bailey, 769 F.2d

203 (4th Cir. 1985). Post-Gaudin, the Fourth Circuit in United States

v. David, 83 F.3d 638 (4th Cir. 1996), reversed a conviction and

required a new trial in a false statement case like the one involving

Davis, where the question of materiality was removed from the jury.

Since Davis failed to object to the district court's jury instruction

of the materiality question, our standard of review is for plain error.

United States v. Olano, 507 U.S. 725 (1993); United States v.

Floresca, 38 F.3d 706 (4th Cir. 1994). We have no difficulty concluding that the failure to submit the materiality determination to the jury

1) was error, 2) was plain, and 3) affected substantial rights. Olano,

507 U.S. at 732-34. The fact that Davis was prosecuted under 18

U.S.C. § 1623 while both Gaudin and David concerned 18 U.S.C.

§ 1001 prosecutions does not affect the court's analysis since all three

cases involved materiality as an element of the offense. Nor is plain

error avoided as in United States v. Cedelle, 89 F.3d 181 (4th Cir.

1996), where serious error occurred but substantial rights were not

affected. Therefore, we are satisfied that Davis is entitled to a reversal

of his conviction and a remand for a new trial.

II.

Davis, however, also seeks for us to order entry of a judgment of

acquittal. He claims that the testimony to the grand jury was not material and also relies on further Fifth and Sixth Amendment rights. In

United States v. Flowers, 813 F.2d 1320 (4th Cir. 1987), the Fourth

Circuit held that in order to sustain a conviction under 18 U.S.C.

§ 1623, the government must show that each of the inconsistent decla-

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rations was "material to the point in question at the proceeding in

which it was uttered." Id. at 1324. Thus, the government must show

that the statement had "a natural tendency to influence, or is capable

of influencing, the decision of the fact finder." Id., at 1324-25. The

standard of review requires the court to view the evidence in a light

most favorable to the government. Id. Viewing the evidence in a light

most favorable to the government, the appearance of Davis on the

scene when Martin was killed and his acquaintance with Cowan could

readily lead the jury to conclude that a statement that there was or was

not a Cowan/Martin fight was capable of influencing the grand jury.

As for the Fifth Amendment claim, Davis' hesitance to answer

questions in the face of his admitting that he did not fear selfincrimination, was insufficient as a basis for asserting the privilege.

Davis' Sixth Amendment contention also fails. The right to counsel

for Sixth Amendment purposes does not attach at the grand jury stage

because criminal proceedings have not been initiated. United States

v. Williams, 504 U.S. 36, 49 (1992); United States v. Mandujano, 425

U.S. 564, 581 (1976).

Accordingly, the judgment is reversed and remanded for a new

trial.

REVERSED AND REMANDED FOR A NEW TRIAL

NIEMEYER, Circuit Judge, dissenting:

Testifying before a grand jury investigating the death of Michael

Martin, an inmate at Lorton Reformatory Correctional Complex, fellow inmate Aaron Davis stated that he did not see James Cowan, also

an inmate, argue or fight with Martin. At Cowan's trial for Martin's

murder, however, Davis testified that in fact he did see Cowan and

Martin fighting on the night of Martin's death. Based on Davis' conflicting statements, the government indicted Davis for perjury in violation of 18 U.S.C. § 1623.

At Davis' trial, the district court did not, consistent with circuit precedent at the time, submit to the jury the question of whether Davis'

false testimony was material. After that trial, however, the Supreme

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Court handed down its decision in United States v. Gaudin, 115 S. Ct.

2310 (1995), requiring that the question of materiality be submitted

to the jury and not be decided by the court. Because of that change

in law, the majority has now ordered a new trial, concluding that the

forfeited error was plain error that affected substantial rights. See

United States v. Olano, 507 U.S. 725 (1993).

In ordering a new trial, however, the majority has failed to determine whether we should exercise our discretion not to notice the error

under standards established by both Olano and our decision in United

States v. Cedelle, 89 F.3d 181 (4th Cir. 1996). Dismissing the controlling effect of Cedelle, the majority has stated simply, "Nor is plain

error avoided as in [Cedelle], where serious error occurred but substantial rights were not affected." This conclusion is, I submit, a misreading of Cedelle.

In Cedelle, the district judge failed to instruct the jury that the government had the burden of proving that Cedelle knew that one of the

persons depicted in sexually explicit material was a minor. In failing

to instruct the jury on an element of the crime, we concluded, contrary

to what the majority has reported in this case, that"the error affected

Cedelle's substantial rights." Id. at 185. In Cedelle, however, we

pointed out that even when we find plain error that affects substantial

rights, we must still exercise discretion whether to notice the error. Id.

And we notice error:

only if in the context of the proceedings taken as a whole,

the error either led to the conviction of a defendant who is

actually innocent or otherwise seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.

Id. at 185 (citations and internal quotes omitted). Deciding not to

notice the error in Cedelle, we focused on the nature of the evidence

as follows:

Consequently, even if the proper instruction had been given,

Cedelle's conviction was inevitable. Under these circumstances, to expend the judicial resources necessary for a

retrial would be more detrimental to the fairness, integrity,

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and public reputation of judicial proceedings than permitting

Cedelle's conviction to stand.

Id. at 186. I believe that that conclusion also applies to the case before

us.

There is no question that Davis' testimony about whether he witnessed a murder was material to an investigation into that murder.

Before the grand jury, Davis testified that he did not see the fight on

the evening of the murder. At trial, Davis, motivated by a desire to

support Cowan's self-defense theory, testified that he did see the

fight. There can be no question that the false testimony was material.

To order a retrial in these circumstances would, in my judgment, be

a hollow ritual, more detrimental to the fairness, integrity, and public

reputation of these judicial proceedings than affirming the conviction.

Accordingly, I would affirm.

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