[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 92-2929

________________________ D. C. Docket No. 91-175-CR-J-16 UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus ELLIS E. NEDER, JR., Defendant-Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

_________________________ (March 19, 1998) Before TJOFLAT and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge. HULL, Circuit Judge: Appellant Ellis E. Neder, Jr. appeals his convictions on various false statement, fraud, conspiracy, and racketeering offenses. Neder contends that the district court erred in failing to submit the issue of materi ality to the jury with respect to his fraud1 Neder also asserts that (1) the counts inthe indictment were multiplicious and duplicitous, (2) the district court erred in denying his motion for change of venue based on pre-trial publicity, (3) there was insufficient evidence to convict, (4) the district court made erroneous evidentiary rulings, (5) the prosecutor suborned perjury and engaged in a pattern of misconduct, (6) prosecutorial misconduct and various trial errors combined to violate his due process rights, and (7) the government is precluded from arguing that materiality is not an element of Neder’s false statement and fraud offenses. After review, we conclude th at these contentions are without merit. 2 and false statement offenses. 1 After review, we affirm. I. FACTS A. Neder’s Fraudulent Activities Between 1984 and 1988, Neder engaged in fraudulent ac tivities related to land acquisition, land developmen t, and construction project s. Through his schemes, Neder fraudulently obtai ned over $30 million in loans from various lending institutions. Neder deposited approximately $7 million in profits on these transactions into his personal account. Testimony at trial revealed that none of the loans would have been approved had the lending institutions been aware of the true nature of the transactions. Neder later defaulted on these loans. Neder also failed to report income of $1,372,360 in 1985 and $4,355,766 in 1986. Neder does not contest that he did notreport this money as income or profits from one of his schemes. Instead, Neder tes tified that he was a dvised that he was not required to report this money as income.2 Neder’s conspiracy and RICO c onvictions under 18 U.S.C. §§ 371 and 1962 were based on Neder’s violations of th e false statement and fraud statutes. In affirming Neder’s convictions under the fals e statement and fraud statutes, we affirm Neder’s conspiracy and RICO convictions as well. 3 B. The Court’s Jury Charge Neder was indicted for mail fraud, wire fraud, bank fra ud, tax fraud, and making illegal false statements. The indictme nt contained materiality as an element of many of these offenses. Neder a nd the government submitted proposed jury instructions relating to the elements of the charged offenses. The district court’s final jury charge included “materiality” as an element of the fraud and false statement offenses. However, the district court in structed the jury that if it found beyond a reasonable doubt that the alleged statements, representations, or promises were false, it need not consider whether they were material because materiality was not an issue for the jury to decide. The court entered its own findings regard ing materiality outside the presence of the jury. Neder timely object ed to the court’s findings and its failure to submit the issue of materiality to the jury. II. DISCUSSION We examine (a) whether materiality is an element of the false statement, wire fraud, mail fraud, bank fraud, and tax fraud offenses; 2 and (b) whether the district court committed reversible error in not subm itting the materiality issues to the jury.4 A. False Statements: 18 U.S.C. § 1014 Two recent Supreme Court decisions begin our analysis. In United States v. Gaudin , 515 U.S. 506 (1995), the Supreme Court assumed materiality to be an element under 18 U.S.C. § 1001, which proscrib es certain false statements, and held that the issue of materiality under § 1001 is fo r the jury, not the j udge, to decide. The district judge in Gaudinerroneously failed to submit the materiality issue to the jury. Id. at 523. We have since referred to this type of error as a Gaudin error. See, e.g. , United States v. Fern , 117 F.3d 1298, 1307 (11 thCir. 1997). Two years later in United States v. Wells , ___ U.S. ___, 117 S. Ct. 921 (1997), the Supreme Court held that materiality is not an element of the false statement offense in 18 U.S.C. § 1014. T hus, the Court concluded thatthe district court had not erred in not submitting the question of mate riality to the jury. Synthesizing Gaudin and Wells , if materiality is not an element, faili ng to submit the issue to the jury is not error; but if materiality is an element, a c ourt errs in failing to submit the issue to the jury. In deciding in Wells that materiality is not an element under § 1014, the Supreme Court focused on the language of § 1014, which states: Whoever knowingly makes any false statement or report . . . for the purpose of influencing in any way the action of . . . any institution the accounts of which are insured by the Federal Deposit Insurance5 Corporation . . . shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. . . . 18 U.S.C. § 1014. The Supreme Court empha sized that the text of § 1014 does not mention materiality: Nowhere does [§ 1014] further say thata material fact must be the subject of the false statement or so much as mention materiality. To the contrary, its terms cove r “any” false statement that meets the other requirements in the statute, and the term “false statement” carries no general suggestion of influential significance . . . . Wells , 117 S. Ct. at 927. The Supreme Court also acknowledged the presumption that “Congress incorporates the common-law meaning of the terms it uses if those ‘terms have accumulated settled meaning under . . . the common law.’” Id. (quoting Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318, 322 (1992)). However, the Supreme Court concluded that the respondents had failed to make any showing that the term “false statement” acquired any implication of materiality at common law. Id. Finally, the Supreme Court determined that the legislative history of § 1014 supported its natural reading. Id. at 928. Of particular significance was the fact that “[w]hen Congress originally enacted § 1014 as part of its recodification of the federal criminal code in 1948, it explicitly include d materiality in other provisions involving false representations.” Id. Moreover, “of the 13 provisions brought together by §3 We recently relied on Wells in determining that materiality is not an element under 15 U.S.C. § 645(a) in United States v. Condon , 132 F.3d 653, 656 (11 thCir. 1998), or 18 U.S.C. § 1010 in United States v. DeCastro , 113 F.3d 176, 179 (11 thCir. 1997). 6 1014, 10 had previously contained no expr ess materiality provision and received none in the recodification, while 3 of the 13 ha d contained express ma teriality requirements and lost them in the course of consolidation.” Id. The Court concluded that “[t]he most likely inference in these circumstances is that Congress deliberately dropped the term ‘materiality’ without intending materiality to be an element of § 1014.” Id. In this case, Neder’s § 1014 conviction is controlled by Wells ’s holding that materiality is not an element under § 1014. Therefore, the di strict court did not commit a Gaudinerror in failing to submit the issue of materiality to the jury because materiality is not an element of a § 1014 offense. 3 B. Mail Fraud And Wire Fraud: 18 U.S.C. §§ 1341 And 1343 We now turn to whether materiality is an element under §§ 1341 and 1343. As an initial matter, we examine the pre-Wells decisions of this court regarding the elements of §§ 1341 (mail fraud) and 1343 (wire fraud). Our decisions list the elements of these offenses without listing materiality as one of the elements. See United States v. Pitt , 717 F.2d 1334, 1339-40 (11 thCir. 1983) (listing elements of wire fraud without including materiality ); United States v. Scott , 701 F.2d 1340, 1343 (11 th7 Cir. 1983) (listing elements of mail fraud without including materiality). However, no cases directly hold that materiality is not an element under §§ 1341 and 1343. Therefore, in determining whether materiality is an element under §§ 1341 and 1343, we begin with the Supreme Court’ s admonition to examine the statutes’ language. Section 1341 proscribes the act or acts of using the mails to execute “any scheme or artifice to defraud, or for obt aining money or property by means of false or fraudulent pretenses, representations, or promises . . . .” 18 U.S.C. § 1341; see also United States v. Ethridge , 948 F.2d 1215, 1216 (11 thCir. 1991). The text of § 1343 is substantially similar to § 1341 and states as follows: Whoever, having devised or intending to devise any scheme or artifice to defraud, or fo r obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, ra dio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing su ch scheme or artifice, shall be fined or imprisoned . . . or both. 18 U.S.C. § 1343. Sections 1341 and 1343 are similar to § 1014 in several respects. Foremost, §§ 1341 and 1343 do not contain the word “material.” Further, § 1341 was enacted as part of the recodification of the fede ral criminal code in 1948, and § 1343 was patterned after § 1341. Based on th ese factors considered in Wells , we conclude that4 In United States v. Cochran , 109 F.3d 660 (10 thCir. 1997), the Tenth Circuit acknowledged that § 1343 supports two theories of liability: (1) a scheme or artifice to defraud; or (2) a scheme to obtain m oney by false pretenses, representations, or promises. Id. at 664. The court found that “mater iality is not an independent element of a wire fraud prosecution,” but held nonethel ess that “there is a materiality aspect to the determination whether the acts of an accused give ri se to a scheme to defraud.” Cochran , 109 F.3d at 667 n.3. We agree with th e Tenth Circuit that materiality is not an independent element under § 1343. We find unpersuasive, however, the reasons supporting the Tenth Circuit’s conclusion that materiality is an aspect of a scheme to defraud.

5 See United States v. Falcone , 934 F.2d 1528, 1545 (11 thCir.), vacated , 939 F.2d 1455 (11 thCir. 1991), modified in part and reinstated in part , 960 F.2d 988 (11 th Cir. 1992) (en banc); Unite d States v. Swearingen , 858 F.2d 1555, 1556 (11 thCir. 1988). 8 materiality is not an element of fraud offenses in §§ 1341 and 1343. 4 As discussed below, we reach the same conclusion regarding § 1344. C. Bank Fraud: 18 U.S.C. § 1344 In United States v. Goldsmith , 109 F.3d 714 (11 th Cir. 1997), this court lists materiality as an element under § 1344. Id. at 715. However, Goldsmith and the cases on which it relies do not directly address wh ether materiality is an element under § 1344. 5 For example, after listing materialityas an element under one part of § 1344, the Goldsmith panel did not mention the word “m aterial” in the remainder of its opinion because materiality was not inissue. Although decided after Wells , Goldsmith does not re-examine the issue of materiality in light of Wells . Instead, Goldsmith follows this court’s pre-Wells decisions which also have not been re-6 In 1989, § 1344 was amended such that the former subsection (a) became the entire section. Thus, what Goldsmith referred to as subsections 1344(a)(1) & (a)(2) are now subsections 1344(1) & (2).

7 The defendant in Goldsmith was indicted under both subsections (a)(1) and (a)(2). Because the evidence supported th e defendant’s convic tion under subsection (a)(1), the court did not reach whether the defendant violated subsection (a)(2). See Goldsmith , 109 F.3d at 716 (“where the indictment and instructions to the jury charge both clauses of the statute, as was done inthis case, the defendant’s conviction may be sustained under either clause.”) (citation omitted).

8 To the extent any of our pre-Wells decisions held that materiality is an element under § 1344, we disavow those holdings ba sed on the Supreme Court’s intervening decision in Wells

. 9 examined in light of Wells

. In addition, in its discussion of the relevant issues, the Goldsmith panel acknowledged that § 1344 has two part s, namely § 1344( a)(1) and (a)(2), 6 and that if an indictment charged a defendant under both parts, the trial court could submit the case to the jury so long as the evidence at trial was suffi cient to convict under either part. 109 F.3d at 716. The Goldsmith panel listed the elements under subsections (a)(1) and (a)(2) but ultimately affirm ed the defendant’s conviction under § 1344(a)(1), the subsection unde r which it did not list materiality as an element. 7 Thus, the Goldsmith panel’s listing materiality as an element under § 1344(a)(2) was not necessary to the panel’s holdi ng and was, consequently, dicta. As a result, we are not bound by Goldsmith on whether materiality is an element under § 1344, and we follow Wells in addressing this question. 810 Applying Wells to § 1344, we first observe th at the word “material” does not appear in the statute. The version of 18 U.S.C. § 1344 in effect when Neder was indicted states in pertinent part: (a) Whoever knowingly executes, or attempts to execute, a scheme or artifice— (1) to defraud a financial institution; or (2) to obtain any of the moneys , funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises sha ll be fined not more than $10,000 or imprisoned not more than five years, or both. 18 U.S.C. § 1344 (1988). Section 1344 was not enacted during the recodification of the federal criminal code in 1948, but its language, like § 1343, is substantially identical to and was patterned after § 1341. These factors, as we stated regarding §§ 1341 and 1343, persuade us that materi ality is not an element under § 1344. D. Use Of The Term “False Representation” Before addressing Neder’s tax fraud convictions, we do note that § 1014 criminalizes false statements, while §§ 1341, 1343, and 1344 proscribe “false or fraudulent pretenses, representations, or prom ises,” and that on that basis the Ninth Circuit has held, after Wells , that materiality is an element under § 1344. See, e.g. , United States v. Nash , 115 F.3d 1431, 1436 (9 thCir. 1997), cert. denied , ___ S. Ct. ___, 66 U.S.L.W. 3474 (U.S. Feb. 23, 1998) (No. 97-1108). We disagree with the9 All of the following statutes use either the term “material representation” or “material misrepresentation”: 8 U.S.C . § 1324c(f); 11 U.S.C. § 505(b); 12 U.S.C. § 1715r; 15 U.S.C. § 78u-4(g)(10)(A)(i)(I); 15 U.S.C. § 158; 15 U.S.C. § 1647(b)(1); 15 U.S.C. § 8817(f); 25 U.S.C. § 88; 25 U.S .C. § 1494; 38 U.S.C. § 3721; 39 U.S.C. § 3005(d); 42 U.S.C. § 5919(f); 42 U.S.C. § 6881(d); 42 U.S.C. § 8835(g); 45 U.S.C. § 664(b); 45 U.S.C. § 720(d); 45 U.S.C. § 756(a); 48 U.S.C. § 832(b); 48 U.S.C. § 1574b(d). 11 Ninth Circuit’s analysis that since the te rm “representation” included “some notion of materiality at common law,” this indi cates that Congress intended for materiality to be an element of th e bank fraud statute. See id. This ignores that Congress now has employed the terms “material represen tation” and “material misrepresentation” in other statutes. 9 The fact that Congress uses the term “material” in conjunction with “representation” or “misrepresentation” in some statutes but not in others rebuts any presumption that Congress now intends to make materiality an element under a statute whenever it employs the term “rep resentation” in that statute. We are also unpersuaded by the Ninth Ci rcuit’s rationale that § 1344 targets fraud and, therefore, necessarily includes materiality as an element of bank fraud. This approach is inconsistent with Wells , which disfavors inferring a materiality requirement where the statutory language does not expressly include one. See Wells , 117 S. Ct. at 927; Nash , 115 F.3d at 1436. E. Tax Fraud: 26 U.S.C. § 7206(1) Finally, we address whether materia lity is an element under 26 U.S.C. §12 7206(1). The relevant languag e of § 7206(1) refers to “every material matter,”as follows: Any person who— (1) Declaration under penalties of perjury.—Willfully makes and subscribes any return, statement, or other document, which contains or is verified by written declaration that it is made under the penalties of perjury, and which he doe s not believe to be tr ue and correct as to every material matter

. . . shall be guilty of an felony and, upon conviction thereof, shall be fined not more than $100,000 . . . or imprisone d not more than 3 years, or both

. . . . 26 U.S.C. § 7206(1) (emphasis supplied). The government does not dispute that materiality is an element under § 7206(1) bu t contends that the materiality question is purely a question of law and appr opriately was decided by the court. Based on Gaudin , a majority of circuits addre ssing the question have held that the question of materiality under § 7206(1) is for the jury, not the judge. See United States v. Uchimura , 125 F.3d 1282, 1286 (9 thCir. 1997); United States v. McGuire , 99 F.3d 671, 672 (5 thCir. 1996) (en banc), cert. denied , 117 S. Ct. 2407 (1997); United States v. DiRico , 78 F.3d 732, 736 (1 st Cir. 1996); United States v. DeDomenico , 78 F.3d 294, 303 (7 thCir.), cert. denied , 117 S. Ct. 507 (1996). But see United States v. Klausner , 80 F.3d 55, 60-61 (2d Cir. 1996) . We now join the First, Fifth, Seventh, and Ninth Circuits in hol ding that the question of materiality under §10 Accord Bilzerian v. United States , 127 F.3d 237, 242 (2d Cir. 1997); United States v. Knapp , 120 F.3d 928, 932 (9 thCir.), cert. denied , 118 S. Ct. 417 (1997); Waldemer v. United States , 106 F.3d 729, 732 (7 thCir. 1997); United States v. Raether , 82 F.3d 192, 194 (8 thCir. 1996). But see United States v. DeFries , 129 F.3d 1293, 1311-12 & n.13 (D.C. Cir. 1997) (Gaudinerror was, per se, a reversible error); United States v. David , 83 F.3d 638, 647 (4 thCir. 1996) (Gaudin error requires automatic reversal); United States v. DiRico , 78 F.3d 732, 737-38 (1 st Cir. 1996) (Gaudinerror constitutes a “structural error” requiring automatic reversal); United States v. Pettigrew , 77 F.3d 1500, 1511 (5 thCir. 1996) (harmless error analysis does not apply to Gaudin error). 13 7206(1) is for the jury. The district cour t thus erred in not submitting the element of materiality to the jury regarding Neder’s § 7206(1) offenses. F. The District Court’s Gaudin Error Was Harmless In this circuit, Gaudin errors do not require automatic reversal but are subject to harmless error analysis . United States v. Fern , 117 F.3d 1298, 1307 (11 thCir. 1997). 10 Thus, the government must show that Neder was not prejudiced by the district court’s Gaudinerror. Id. (citing United States v. Olano , 507 U.S. 725, 734-35 (1993)). The government has met that burde n by showing that materiality was not in dispute regarding Neder’s tax fraud offense. Under § 7206(1), a “material matter” is any information necessary to a determination of a taxpayer’s income tax liability. See Uchimura , 125 F.3d at 1285; United States v. Aramony , 88 F.3d 1369, 1384 (4 thCir. 1996), cert. denied , 117 S. Ct. 1842 (1997); Klausner , 80 F.3d at 60; see also United States v. Gaines , 690 F.2d 849,14 858 & n.16 (11 thCir. 1982) (stating that in a prosecution under § 7206(1), “the amounts of the misstatements were legally irre levant . . . .”); United States v. Holland , 880 F.2d 1091, 1096 (9 th Cir. 1989) (stating that “any failure to report income is material.”). Neder’s § 7206(1) convictions were based on his failing to report $1,372,360 in income in 1985 and $4,355,766 in income in 1986. An accurate reflection of income is critical to dete rmining a taxpayer’s income tax liability. Indeed, Neder did not contest the materiality of his failing to report this income either through testimony or evidence presented duri ng the trial, or during closing argument. Neder did not even contest th at he failed to report the m oney. Neder’s defense on the § 7206(1) offenses related solely to his in tent—specifically, that he had relied on the advice of his attorney and accountant that he was not required to report the money as income. Because materiality was not in disput e with respect to Neder’s tax fraud offense, the district court’s Gaudin error “did not contribute to the verdict obtained.” Yates v. Evatt , 500 U.S. 391, 403 (1991) (quoting Chapman v. California , 386 U.S. 18, 24 (1967)). Therefore, the district court’s error was harmless. III. CONCLUSION The district court committed no reversible errors, and Neder’s convictions are thus15 AFFIRMED.