PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 20-1449

______________

UNITED STATES OF AMERICA

v.

JOSEPH R. JOHNSON, JR.,

 Appellant

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-19-cr-00367-001)

District Judge: Honorable Harvey Bartle, III

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Argued June 22, 2021

Before: SMITH, Chief Judge, MATEY and FISHER, Circuit 

Judges.

(Filed: November 23, 2021)
2

Emily McKillip [Argued]

Linwood C. Wright, Jr.

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Abigail E. Horn [Argued]

Federal Community Defender Office for the Eastern District of 

Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

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OPINION OF THE COURT

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MATEY, Circuit Judge.

Joseph Johnson developed an unusual fascination with 

the allegations of sexual assault against entertainer Bill Cosby. 

Hoping to cast doubt on the accusers, Johnson posed as an 

attorney and filed a fabricated document on the civil docket of 

one of the lawsuits against Cosby. His trick was quickly 

discovered, and the Government brought criminal charges 

against Johnson for making a false statement and identity theft,

leading to a conviction after a jury trial. Johnson now appeals, 

arguing that the Government failed to prove that his statements 

were material. 
3

We agree. Johnson’s behavior wasted public time and 

resources and distracted court officials from their work. But 

only Congress enjoys the authority to turn conduct into a 

federal crime. And while the Government presented plenty 

showing that Johnson’s statements were false, it offered no 

evidence and elicited no testimony from the only individual it 

proposed as the government decisionmaker—the judge in the 

underlying litigation—to explain how the filing could 

influence a judicial decision. Because that evidence was 

necessary for the Government to establish liability under 18 

U.S.C. § 1001, we will reverse Johnson’s convictions and 

remand for entry of a judgment of acquittal.

I. BACKGROUND

The story of Johnson’s false filing begins, as does much 

in our age, on the internet. Johnson became fixated on the 

claims against Cosby and decided to come to his defense. At 

first, his acts were no more distracting than most of the internet, 

largely posts about Cosby’s innocence. Then, Johnson decided 

to leave the virtual world and insert himself into the real one.

A. The Civil Action

The rest of the story follows a winding road, and starts 

with Andrea Constand, who sued Cosby in 2005 alleging 

sexual assault. In 2015, Constand filed another lawsuit in the 

Eastern District of Pennsylvania, claiming defamation and 

invasion of privacy for Cosby-related claims. As in 2005, 

Constand was represented by attorney Dolores Troiani. When 

Troiani filed the 2015 Complaint, she inadvertently failed to 

attach an exhibit. The next day, Troiani filed a “Praecipe to 

Attach Exhibit ‘A’ to Plaintiff’s Complaint,” along with the 
4

omitted exhibit and a certificate of service.1 The filing was 

docketed, and that appeared to be the end of the matter.

It was not. A few months later, Troiani received several 

emails from an individual using the name “Tre Anthony.” All 

were sent on the same day, and all related to Constand’s 

allegations against Cosby. In the first, “Tre Anthony” warned 

Troiani that her “client’s physical street address . . . will be 

released to the media and published online unless you notify 

the undersigned of your objection to the same no later than 

close of business on January 4, 2015.” (App. at 362.) A threat 

heightened by including Constand’s residential address.

A second email followed, promising to “ma[ke] public 

through all media outlets and social media” the information in 

the first email, as well as information relating to other alleged 

Cosby victims, whom “Tre Anthony” declared to have made 

“false[] and fraudulent[]” allegations against Cosby. (App. at 

367, 369.) And a third, sent to Troiani, other attorneys, and The 

New York Times, stated that “[t]he name, physical address and 

telephone number of each of the plaintiffs” would be 

“circulated on social media” and other outlets. (App. at 377.) 

“Tre Anthony” attached several documents to his 

emails, including an unsigned Internal Revenue Service

“Information Referral” form alleging that Constand had failed 

to report income derived from “baseless lawsuits” premised 

“on a decade old campaign of . . . false allegations.” (App. at 

1 A “praecipe” is a “written motion or request seeking 

some court action.” Praecipe, Black’s Law Dictionary (11th 

ed. 2019).
5

371–73.) He also attached copies of the complaints from 

Constand’s lawsuits. 

All of which brings us to Johnson’s alleged crime. 

Roughly a month later, someone hand-delivered an envelope 

to the Clerk of the United States District Court for the Eastern 

District of Pennsylvania. The envelope contained a document 

entitled “Praecipe to Attach Exhibit ‘A’ to Plaintiff’s 

Complaint.” It was a photocopy of the praecipe filed by 

Troiani, along with a photocopy of Troiani’s original 

certificate of service. But this filing attached the unsigned IRS 

Information Referral form and complaints previously 

circulated by “Tre Anthony,” in effect, accusing Constand of 

failing to report income obtained in connection with her

lawsuits. 

Following the customary course, the Clerk’s office

uploaded all the documents to the docket, triggering an 

automatic email notification to Troiani. Confused, Troiani 

called the Clerk’s office, who directed her to the chambers of 

the presiding judge (the “Judge”). The Judge then entered an 

order striking the false praecipe and exhibit from the docket, 

explaining that the “filing [wa]s fraudulent and was not filed 

by the attorney whose purported signature appears on the 

document.” (App. at 598.)

B. Johnson Is Discovered, Indicted, and Convicted

The “Case of the False Praecipe” was referred to the 

Federal Bureau of Investigation, and after an extensive inquiry,

the Government determined that Johnson was the culprit. A 

chain of business records connected “Tre Anthony’s” email 

account to Johnson. Johnson, the Government learned, used his 
6

work computer to repeatedly access the docket for Constand’s 

lawsuit (including the order striking the false praecipe), and to 

obsessively conduct internet searches relating to Constand and 

Cosby. And a forensic analysis conducted at the FBI’s lab in 

Quantico, Virginia discovered Johnson’s fingerprints on the 

tape used to seal the envelope containing the false praecipe. 

Evidence piled high in hand, the Government persuaded 

a grand jury in the Eastern District of Pennsylvania to return 

an indictment charging Johnson with one count of knowingly 

and willfully making materially false, fraudulent, and fictitious 

statements and representations and aiding and abetting, in 

violation of 18 U.S.C. § 1001 and § 2 (Count 1);

2

and one count 

of knowingly and without lawful authority using a means of 

identification during and in relation to the false statements, and 

aiding and abetting, in violation of 18 U.S.C. § 1028A(a)(1), 

(c)(4) and § 2 (Count 2).

After a three-day trial, a jury found Johnson guilty on 

both counts. Johnson moved for a judgment of acquittal, and, 

in the alternative, a new trial. The District Court denied the 

motion, and sentenced Johnson to thirty-two months of 

2 The indictment did not specify a subsection of § 1001, 

but it mirrored the language of subsection (a)(2), which forbids 

the “mak[ing]” of “any materially false, fictitious, or 

fraudulent statement or representation.” 18 U.S.C § 1001(a)(2). 

Subsection (a)(3), by contrast, prohibits “mak[ing] or us[ing] 

any false writing or document knowing the same to contain any 

materially false, fictitious, or fraudulent statement or entry,” 

and (a)(1) proscribes “falsif[ying], conceal[ing], or cover[ing] 

up by any trick, scheme, or device a material fact.” Id. § 

1001(a)(1), (a)(3).
7

imprisonment and three years of supervised release, as well as 

a special assessment of $200. Johnson appealed.3

II. DISCUSSION

Johnson raises two challenges to his conviction. First, 

he argues that the Government’s evidence cannot prove the 

materiality element of 18 U.S.C. § 1001. That the praecipe was 

struck from the docket, he contends, may have been proof of 

its falsity, but not its materiality. Second, Johnson claims that 

the District Court’s jury instructions constructively amended 

the indictment. While the Government’s indictment charged 

the “making” of a false statement, the District Court instructed 

the jury that it could convict Johnson for “making or using” a 

false document, which impermissibly broadened its scope. 

We agree with Johnson’s first argument, so we need not 

reach his second.4 The Government’s trial evidence was 

insufficient for a rational jury to conclude Johnson’s 

misstatements were material to the Judge, the only pertinent 

governmental decisionmaker identified by the Government at 

trial. More, it would be a miscarriage of justice for his 

conviction to stand when the Government failed to prove all 

elements of the offense. As a result, Johnson’s conviction for 

false statements must be reversed. And because Johnson’s

3 The District Court had jurisdiction under 18 U.S.C. § 

3231. We have jurisdiction under 28 U.S.C. § 1291.

4 Though we note that the Government concedes that the 

indictment was constructively amended, arguing only that

Johnson suffered no prejudice. 
8

conviction for aggravated identity theft depends on his falsestatements conviction, we will reverse it as well.

5

A. We Review Johnson’s Sufficiency-of-the-Evidence 

Challenge for Plain Error

Johnson and the Government disagree on the standard 

of review for Johnson’s sufficiency-of-the-evidence challenge. 

We conclude that plain-error review is required.

1. Preserving Issues on Appeal

Our standard of review turns on whether Johnson 

preserved his sufficiency challenge by “squarely” presenting

the issue to the District Court. United States v. McCulligan, 

256 F.3d 97, 101 (3d Cir. 2001). While preservation does “not 

require any particular incantation,” United States v. Miller, 833 

F.3d 274, 283 (3d Cir. 2016), it does demand that the defendant 

give the district court a chance to “consider and resolve” the 

question later raised on appeal. Puckett v. United States, 556 

U.S. 129, 134 (2009). Preserving arguments is often key; 

5 Aggravated identity theft prohibits identity theft 

“during and in relation to” any of the felonies enumerated in 

subsection (c), including material false statements. 18 U.S.C. § 

1028A(a)(1); id. § 1028A(c)(4) (defining “felony violation” to 

include false statements). Conviction for aggravated identity 

theft depends on commission of an enumerated felony, so the 

reversal of a conviction for the predicate felony requires 

reversal of the aggravated identity theft conviction. See, e.g., 

United States v. Camick, 796 F.3d 1206, 1219 (10th Cir. 2015) 

(reversing aggravated identity theft conviction because of

reversal of material false statements conviction).
9

“merely raising an issue that encompasse[d] the appellate 

argument” can be inadequate. United States v. Joseph, 730 

F.3d 336, 337 (3d Cir. 2013); see also id. at 340 (distinguishing 

between “issues” and “arguments,” and explaining that the 

former can encompass “more than one of the latter”). So “when 

a Rule 29 motion raises specific grounds, or arguments . . . all 

such arguments not raised are unpreserved on appeal” and are 

reviewed for plain error. United States v. Williams, 974 F.3d 

320, 361 (3d Cir. 2020). A sensible rule that encourages 

litigants to directly identify for the district court the purported 

grounds for error. 

2. Johnson Did Not Raise Materiality

Johnson contends that he raised “a general Rule 29 

motion,” sufficient “to preserve all [his] sufficiency claims for 

appeal.” (Reply Br. at 7–8.) Not so.6 At the close of the 

Government’s evidence, Johnson moved for a judgment of 

acquittal focusing “specifically” on the lack of “evidence 

provided” as to whether he had “caused” a false statement to 

be filed. (App. at 681.) As a result, Johnson argued, “the 

Government ha[d] not met [its] burden at this point to send 

th[e] case to the jury.” (App. at 681.) Johnson did not mention 

materiality. The District Court denied the motion. 

6 Putting to one side whether Johnson’s Rule 29 motion 

was a “general motion,” we note that we have not held that a 

“general” Rule 29 motion preserves all sufficiency arguments 

for appeal. To the contrary, in United States v. Williams we 

found it “unnecessary . . . to . . . hold that a broadly stated Rule 

29 motion preserves all arguments bearing on the sufficiency 

of the evidence.” 974 F.3d at 361. 
10

After trial, Johnson renewed his motion for acquittal. In 

a full supporting brief, he raised several specific challenges to 

his conviction7 but, as before, he did not bring up materiality.

Both motions thus “raise[d] specific grounds, or arguments” 

about the sufficiency of the evidence. Williams, 974 F.3d at

361. And as neither alerted the District Court to any concerns 

about materiality, that argument is “unpreserved on appeal.” 

Id. We therefore review it for plain error. 

3. Plain-Error Review

Using the four-part framework of United States v. 

Olano, “we reverse only if (1) there was an ‘error’; (2) the error 

was ‘plain’; (3) the error prejudiced or ‘affected substantial 

rights’; and (4) not correcting the error would ‘seriously affect

the fairness, integrity or public reputation of judicial 

proceedings.’” United States v. Greenspan, 923 F.3d 138, 147 

(3d Cir. 2019) (quoting United States v. Olano, 507 U.S. 725, 

732, 734–36 (1993)). Under plain-error review, insufficient

evidence requires reversal when upholding the conviction 

would “result[] in a fundamental miscarriage of justice.” 

United States v. Castro, 704 F.3d 125, 137–38 (3d Cir. 2013) 

(quoting United States v. Barel, 939 F.2d 26, 37 (3d Cir. 

1991)). 

7 For example, Johnson argued that the Government 

presented no proof of aiding and abetting, that expert testimony 

and business records were improperly admitted, and that the 

evidence of his fingerprints on the envelope that contained the 

false praecipe was not sufficient to support the false statements 

conviction.
11

Ordinarily, when the government has failed to prove 

each essential element of the crime charged, we will reverse 

under Olano’s fourth prong. United States v. Jones, 471 F.3d 

478, 480 (3d Cir. 2006); see also Castro, 704 F.3d at 141 

(explaining that the Government’s “complete failure of proof” 

on the falsity element of a false-statements conviction required 

reversal, as “the conviction [was] infected with plain error and 

constitute[d] a miscarriage of justice”). As we will explain, that 

is the case here. 

B. The Government Did Not Prove Materiality

Section 1001 proscribes, among other things,

“knowingly and willfully . . . mak[ing] any materially false, 

fictitious, or fraudulent statement or representation” in a matter 

within the jurisdiction of the federal government. 18 U.S.C. § 

1001(a)(2). Establishing a violation requires: “(1) that [the 

defendant] made a statement or representation; (2) that the 

statement or representation was false; (3) that the false 

statement was made knowingly and willfully; (4) that the 

statement or representation was material; and (5) that the 

statement or representation was made in a matter within the 

jurisdiction of the federal government.” United States v. 

Moyer, 674 F.3d 192, 213 (3d Cir. 2012). Johnson argues that 

the Government’s evidence did not prove materiality. We 

agree. 

1. Materiality Under 18 U.S.C. § 1001

To be material, a false statement must have “a natural 

tendency to influence, or be capable of influencing, the

decision of the decisionmaking body to which it was 

addressed.” United States v. Gaudin, 515 U.S. 506, 509 (1995)
12

(cleaned up). We have explained that a statement may be 

material “even if no agency actually relied on the statement in 

making a decision.” United States v. McBane, 433 F.3d 344, 

350 (3d Cir. 2005) (citing In re Cohn, 54 F.3d 1108, 1114 (3d 

Cir. 1995)). The issue is not actual reliance, but whether the 

false statement had a “natural tendency to influence” or was

“capable of influencing” the governmental decisionmaking 

body at issue. Gaudin, 515 U.S. at 509.

8 But “[d]eciding 

whether a statement is ‘material’” still requires a court to 

determine the subsidiary question of “what decision was the 

agency trying to make?” Id. at 512.

Put differently, materiality requires evidence showing

that “[the false statements] were ‘of a type capable of 

influencing a reasonable decisionmaker,’” Moyer, 674 F.3d at

215 (quoting McBane, 433 F.3d at 351), and that the false 

statements could have bearing on an actual decision entrusted 

to the decisionmaker, United States v. Litvak, 808 F.3d 160, 

173–4 (2d Cir. 2015). That is the key, and the key to the 

Government’s case against Johnson is its singular focus at trial

8 A now-canonical example is the very false, but very 

unsuccessful statement made by a suspect-turned-defendant to 

an FBI agent to put her off the scent. See, e.g., United States v. 

Lupton, 620 F.3d 790, 806 (7th Cir. 2010) (observing that “a 

frequent aim of false statements . . . is to cast suspicion away 

from the declarant”). That the defendant’s statements did not

actually influence the particular decisions of the particular 

agent is of no moment, so long as the “misrepresentation[], 

under normal circumstances, could cause FBI agents to redirect their investigation to another suspect, question their 

informant differently or more fully, or perhaps close the 

investigation altogether.” McBane, 433 F.3d at 352.
13

on the Judge as the pertinent decisionmaker. We turn next to 

that evidence.

2. The Evidence Presented

To prove materiality, the Government relied on the 

testimony and actions of the Judge. The Judge, and the Judge 

alone, was the pertinent “decisionmaker” in the Government’s 

trial theory. This focus on the Judge, however, is ultimately 

fatal to the Government’s case because the record contains no 

evidence that any decision entrusted to the Judge could have

possibly been influenced by the praecipe. The praecipe filed by 

Johnson contained an unsigned exhibit that accused Constand 

of failing to report income. But given the subject matter of the 

underlying litigation and posture of the case, there is no 

evidence that this false statement, even if considered by the 

Judge, could have been relevant, much less material, to any 

decision.9 And without evidence of some decision entrusted to 

the Judge that could have been affected by Johnson’s no doubt

9 The Government did not elicit testimony, for example, 

about the need for pretrial rulings on the authenticity or 

relevance of the documents filed pursuant to the praecipe or 

their admissibility under Rules 403 or 404(b) of the Federal 

Rules of Evidence. Nor does the record support an inference 

that the Judge would need to make a credibility determination 

as to Constand, to which the praecipe arguably could have been 

relevant. And without the Government identifying even what 

decision could be influenced, “a finder of fact reasonably could 

not have inferred from the government’s evidence that” the 

praecipe materially influenced that unidentified decision. 

United States v. Finn, 375 F.3d 1033, 1040 (10th Cir. 2004).
14

false statement, the Government cannot establish materiality. 

Gaudin, 515 U.S. at 512; Litvak, 808 F.3d at 173–4.

The Judge testified about the civil docket generally:

[A] docket is the history of the case. Every action 

that has been taken either by the lawyers or by 

the court is recorded in the docket, so it’s a 

memory of the case. So whenever I have a matter 

to be adjudicated or resolved in a particular case, 

I look at the docket to see what is the history of 

that and where it fits into the developments of 

that case.

(App. at 448.) “[E]very time I look at the docket,” the Judge 

explained, “I extract information. And then, based on that 

information, I take action.” (App. at 448.) The Judge then

testified about the false praecipe in particular. He explained he 

first learned about it when his deputy told him there was “a 

paper of some sort” or “a paper in the docket” that was not filed 

by Troiani. (App. at 451). The Judge asked his staff to prepare 

an order striking the false praecipe. They did so, and the Judge 

entered the order,

10 deleting it from the docket.

This evidence—that the praecipe was false and that it 

was deleted—became the basis of the Government’s 

materiality argument at summation:

10 The order read: “This filing is fraudulent and was not 

filed by the attorney whose purported signature appears on the 

document. The matter will be referred to the appropriate 

authority for further action.” (App. at 598).
15

You know, in fact, that it was material, because 

it had to be capable of influencing the judicial 

branch. And that it was, because [the Judge], in 

fact, testified that, yeah. You know, I look at the 

docket. I look at the entries on the dockets. 

That’s how I make my decisions, based on the 

entries on the docket. I consider those things, and 

in this case, there was an entry on the docket. 

There was a filing. It was a false filing. He took 

action in Filing Number 7 on February 2, 2016, 

and, in fact, struck it from the record.

So he took action. So not only was it capable of 

influencing his decision, but it did. So it was, in 

fact, material.

(App. at 703.) That, as we explain, is insufficient.

3. The Evidence Does Not Prove Materiality

Johnson agrees that “[t]he materiality standard does not 

require that the statement actually influence the decisionmaker, but rather that it be capable of doing so.” (Opening Br. 

at 17 (citing McBane, 433 F.3d at 350).) But, he argues, the 

Government did not meet this requirement.

He is correct. As noted above, the only evidence of 

materiality presented to the jury was: (1) that the false praecipe 

Johnson filed was on the docket, which the Judge consults

generally to make decisions; and (2) that filing of the false 

praecipe prompted the Judge to strike it from the docket. But 

neither of those unremarkable observations show any decision 

entrusted to the Judge—the sole decisionmaker identified at 
16

trial—that could have been influenced by the praecipe. 

Considered both separately and in total, that evidence cannot 

clear even the low sufficiency bar on plain-error review. 

i. Docket Entries

Start with dockets and judicial decisions. That the false 

praecipe made its way onto the Judge’s docket established that 

Johnson made a statement (the filing) to a governmental 

decisionmaker (the Judge). And the Judge’s testimony 

established that docket filings, in the abstract, might affect his 

decisionmaking process. (See App. at 448 (“Well, every time I 

look at the docket, I extract information. And then, based on 

that information, I take action.”).) But the Government elicited 

no testimony about how those filings might affect that 

decisionmaking process. And regardless, the fact that the Judge 

considers items on the docket in the ordinary course cannot 

support a finding that this filing was material beyond a 

reasonable doubt, especially because the Government failed to 

identify a single decision entrusted to the Judge in this case that 

could have been influenced by the praecipe.

In short, the problem with the Government’s proof is 

that not every misrepresentation presented to a governmental 

decisionmaker is inherently “material.” A statement might be 

false, but still incapable of affecting anything, as seen in the 

Tenth Circuit’s decision in United States v. Camick, 796 F.3d 

1206 (10th Cir. 2015). There, the defendant posed as his 

brother and filed a provisional patent application with the U.S. 

Patent and Trademark Office. Id. at 1210–11. The government 

came calling with an indictment, leading to a conviction for

making a false statement. Id. at 1212–13. The Tenth Circuit 

reversed, agreeing there was insufficient evidence of 
17

materiality. Camick made a false statement to a governmental 

decisionmaker. But the government offered no evidence 

explaining how the statement might have influenced the PTO

because Camick filed only a provisional application. Until the 

PTO reviewed for patentability, there was no decision to 

influence. Id. at 1218–19. Camick’s statements were false, but 

still immaterial. So too here, as the Government failed to 

identify a decision entrusted to the Judge that the praecipe 

could influence.

At other times, information presented to the government 

is “relevant,” but ultimately still immaterial—after all, 

“‘relevance’ and ‘materiality’ are not synonymous.” United

States v. Rigas, 490 F.3d 208, 234 (2d Cir. 2007). “To be 

‘relevant’ means to relate to the issue. To be ‘material’ means 

to have probative weight, i.e., reasonably likely to influence 

the tribunal in making a determination required to be made.” 

Id. (quoting Weinstock v. United States, 231 F.2d 699, 701

(D.C. Cir. 1956)).

11 Thus, to prove materiality, the government 

cannot simply present evidence that a statement was false and 

the information generally within the purview of the 

governmental decisionmaker to which it was addressed. 

Rather, it bears the burden of adducing testimony or other 

evidence explaining the purpose or use of the statement and 

some specific way or ways in which the statement might affect 

11 Dictionary definitions confirm this distinction. 

Compare Relevant, Black’s Law Dictionary (11th ed. 2019) 

(defining “relevant” as “[l]ogically connected . . . to”), with 

Material, Black’s Law Dictionary (11th ed. 2019) (defining 

“material” as, among other things, “[o]f such a nature that 

knowledge of the item would affect a person’s decisionmaking; significant; essential”).
18

a particular decision of the decisionmaking body. Applying 

those principles here, the record contains evidence of no 

particular decision made by the Judge that was or could have 

been influenced by the praecipe.

Another Tenth Circuit decision, United States v. Finn, 

375 F.3d 1033 (10th Cir. 2004), drives home this point. In 

Finn, a (now-former) special agent with the U.S. Department 

of Housing and Urban Development altered an official expense 

report to cover up an auto accident. Id. at 1036–37. A false 

statement, said the Tenth Circuit, but not a material one under 

§ 1001. True, the testimony presented at trial established that 

the altered expense report “fell generally within the 

jurisdiction” of HUD. Id. at 1040. Meaning the reports were, 

in some sense, “relevant” to the pertinent governmental 

decisionmaker. But that was not enough. The government had 

failed to explain “the purpose or use of case expenditure forms 

from the agency’s perspective,” and how the altered expense 

report “could or would have examined the case expenditure 

form at issue for the purpose of determining the propriety of 

the underlying expense.” Id. Without such a showing, the 

government had failed to prove materiality. Id.

So too here. The Government elicited generalized 

testimony from the Judge: that he usually looks to the civil 

docket in making decisions, and of course, that Johnson stuck 

a false praecipe on it. But, as Finn highlights, this established

only relevance, not materiality. The Government did not 

present evidence connecting Johnson’s filing to a specific 

decision by the Judge that might have been affected by 

Johnson’s false statement. And “[t]o form the basis of a jury’s 

conclusion, [the Government’s] evidence . . . cannot be purely 

theoretical and evidence of such a capability to influence must 
19

exceed mere metaphysical possibility.” Litvak, 808 F.3d at

172–73. All of which left materiality unproven.

ii. The Deleted Filing

Nor is materiality shown by the Judge’s decision to 

delete the false praecipe from the docket. This was the 

Government’s trial theory, as it explained: “[the Judge] struck 

[the false praecipe] from the record. So he took action. So not 

only was it capable of influencing his decision, but it did. So it 

was, in fact, material.” (App. at 703.)

We fail to see the connection. That the praecipe was 

struck could be evidence that it was false; in fact, the order 

deleting the filing noted specifically that the “filing [wa]s 

fraudulent and was not filed by the attorney whose purported 

signature appears on the docket.” (App. at 598 (emphases 

added)). But “falsity and materiality [are] separate

requirements of misrepresentation.” Kungys v. United States, 

485 U.S. 759, 781 (1988); see also Gaudin, 515 U.S. at 509

(citing and quoting from Kungys, 485 U.S. at 770, to define the 

materiality element of 18 U.S.C. § 1001). As Judge 

Easterbrook once remarked, “[d]eliberately using the wrong 

middle initial . . . is not a felony—not unless the right middle 

initial could be important.” United States v. Kwiat, 817 F.2d 

440, 445 (7th Cir. 1987). The “could be” is missing from the 

Government’s evidence. The Government needed proof of an 

actual decision that could have been affected by the false 

praecipe. See Gaudin, 515 U.S. at 512 (“Deciding whether a 

statement is ‘material’ requires the determination of . . . [the] 

question[] . . . ‘what decision was the agency trying to 

make?’”).
20

The Judge’s decision merely to delete a false filing is 

not the type of decision that, without more, itself gives rise to

materiality, at least on the record here. This conclusion is 

informed by the Second Circuit’s decision in United States v. 

Litvak, where the defendant was charged and convicted of 

making false statements to the Department of the Treasury. 808 

F.3d at 166, 170. The government argued his statements were 

material because they caused Treasury to “actually refer[] the 

matter . . . for investigation.” Id. at 173. The Second Circuit 

disagreed. After all, the court explained, “every prosecution for 

making a false statement undoubtedly involves ‘decisions’ by 

the government to refer for investigation, investigate, and 

prosecute the defendant for making the false statement at 

issue.” Id. (emphasis added). The government, rather, had to

present evidence of a “decision” that could be influenced 

beyond the mere fact that “the [governmental decisionmaker]

had received the misstatements and that its staff[] had 

reviewed” and reacted to them. Id. at 174 (citing Rigas, 490 

F.3d at 236). 

Johnson’s case is even further afield. To conclude 

otherwise would be to render the materiality element 

meaningless, and the scope of § 1001 absurd. Suppose Johnson

had submitted his false praecipe on December 31, with a 

message inarguably incapable of affecting the Judge’s 

decisionmaking. “Happy New Year,” perhaps. The filing was 

docketed, and after appreciating the well-wishes, the Judge 

struck it from the docket. Was this a “decision,” in the ordinary 

sense of the word? Of course. But could this be a material 

decision supporting a conviction under § 1001? Of course not. 

Government decisionmakers perform all sorts of 

administrative and ministerial tasks. Sensibly, § 1001 focuses 

not on those workday activities, but on “misrepresentation[s]
21

or concealment[s] . . . predictably capable of affecting, i.e., 

ha[ving] a natural tendency to affect, the official decision” of a 

government agency. Kungys, 485 U.S. at 771 (emphasis 

added); see also United States v. Richardson, 676 F.3d 491, 

505 (5th Cir. 2012) (relevant decision in 18 U.S.C. § 1001 case 

considering false statement made to judge was “whether to 

grant or to deny . . . motion for admission pro hac vice”). The 

Government cannot prove materiality simply by presenting 

evidence that Johnson’s false filing was received and later 

deleted from the docket.

4. The Government’s Unpersuasive Responses

Perhaps sensing the weakness of its trial case, the 

Government responds to all this with a new theory: that

Johnson’s false praecipe was “material” not because it was 

“capable of influencing [the Judge’s] decision,” (App. at 703), 

but because “by misrepresenting that the document was being 

filed by a party to the lawsuit, rather than a total stranger to the 

litigation, it enabled the document to be filed” by the Clerk in 

the first place, (Response Br. at 14 (emphasis added).) That the 

Government presented no evidence that Johnson’s filing could 

influence a pertinent decision of the Judge in the litigation, it 

now argues, is of no moment.

Let us count the problems with this position. For one, 

the record makes clear this was not the theory presented at trial. 

When Johnson moved in limine to preclude the testimony of 

the Judge, the Government asserted quite the opposite, arguing 

the testimony was relevant to materiality because the Judge

alone was the governmental decisionmaker: 
22

As the judicial decision maker in the civil case in 

which the false statement was filed, [the Judge] 

is in the best position to determine whether the 

false statement did, or was capable of affecting 

judicial action. Within the context of this case, 

judicial non-decision making court personnel 

are not in a position to make this determination.

(App. at 98 (emphasis added).) By contrast, the Government

explained that staff personnel like the court clerks who accept 

and upload filings were not.

The Government’s summation banged this drum loudly, 

repeatedly arguing that materiality is measured by its ability to 

“affect[] judicial action,” (App. at 98.)12 As the Government 

put it: “[the filing] was submitted to the judicial branch, 

because it was submitted . . . for [the] Judge[’s] . . . 

consideration.” (App. at 703 (emphasis added).) The

Government’s trial theory was not that materiality was 

established by docketing the false document, but that it could 

(and did) influence an actual judicial decision by the Judge.

As the jury never heard the Government’s new theory, 

we are loath to consider it. As the Second Circuit explained in 

United States v. Rigas, “[a]lthough a statement’s materiality 

12 Examples abound: (a) “it had to be capable of 

influencing the judicial branch”; (b) “[the] Judge . . . , in fact, 

testified that, yeah. You know, I look at the docket. . . . That’s 

how I make my decisions, based on the entries on the docket”; 

and (c) “[the Judge] took action in Filing Number 7 on 

February 2, 2016, and, in fact, struck it from the record,” (App. 

at 703.)
23

may present a question of law resolvable by an appellate court 

in some contexts, a criminal defendant is entitled to have a jury 

determine his guilt on every element of his alleged crime and 

the jury must pass on the materiality of a defendant’s 

misrepresentations.” 490 F.3d at 231 n.29 (citations omitted); 

see also Chiarella v. United States, 445 U.S. 222, 236 (1980) 

(stating that courts “cannot affirm a criminal conviction on the 

basis of a theory not presented to the jury”); United States v. 

Farrell, 126 F.3d 484, 491 (3d Cir. 1997) (noting that we do 

not ordinarily “independently review the record before us and 

attempt to assess the evidence relevant to an alternative theory

. . . upon which to uphold a conviction”). “Accordingly, we 

will not consider in the first instance arguments regarding 

materiality that were not presented to the jury.” Rigas, 490 F.3d 

at 231 n.29.

And for another, this new theory is unsupported by the 

record. The Government’s argument reduces to two points: 

Johnson filed a document that he claimed was made by Troiani,

establishing “falsity”; and “only [Troiani] could make such a 

filing,” establishing “materiality.” (Response Br. at 25.) Or, as 

it asserts elsewhere, “[t]he misrepresentation of the filer’s 

identity was material because by misrepresenting that the 

document was being filed by a party to the lawsuit, rather than 

a total stranger to the litigation, it enabled the document to be 

filed.” (Response Br. at 14.)13

The problem, though, is that the evidence presented to 

the jury suggested just the opposite: that almost anything with 

a proper case number would be scanned and uploaded to the 

13 Arguments all briefed without a citation to any 

supporting evidence in the record.
24

civil docket, regardless of the identity of the signatory. One 

civil docket clerk, for example, testified that “anyone can drop 

off filings for an attorney or anything at the front counter.” 

(App. at 392.) No names are recorded, or, it appears, any 

signatures checked. Rather, when the Clerk’s Office receives a 

paper filing, “[the clerks] scan in the filing and upload it to the 

ECF system.” (App. at 398). Another clerk agreed: “if 

something comes in hard copy . . . the docket clerks downstairs 

will” simply “scan it and upload it to ECF.” (App. at 432). Far 

from proving that masquerading as Troiani enabled the false 

praecipe to be filed, the record reveals that Johnson’s identity 

was immaterial, and that Johnson could have filed the same 

documents under his, or any other, name. A point, Johnson

dryly notes, illustrated by this case, where the District Court’s 

docket, and our own, are littered with irrelevant filings made 

by a nonparty.

Lacking support for both its trial and appellate theories, 

the Government seeks refuge in civil procedural rules and case 

law as proof of the centrality of the identity of the filer in civil 

proceedings.14 But even assuming their relevance, the 

Government presented none of this to the jury. See In re 

Winship, 397 U.S. 358, 364 (1970) (“Due process commands 

that no man shall lose his liberty unless the Government has 

borne the burden of . . . convincing the factfinder of his guilt.”)

(citation omitted); Gaudin, 515 U.S. at 522–23 (explaining that 

14 In particular, the Government directs us to Rule 11 

(which requires every filing to be signed by the filer and state 

the filer’s contact information and provides for sanctions for 

false representations to the court), and Rule 24 (which sets out 

the requirements for intervention) of the Federal Rules of Civil 

Procedure.
25

the Constitution requires that a jury, not a judge, decide the 

materiality of a false statement). And while, as the Supreme 

Court has recently instructed, “an appellate court conducting 

plain-error review may consider the entire record—not just the 

record from the particular proceeding where the error 

occurred,” the new supposed evidence the Government points 

us to was not a part of either. Greer v. United States, 141 S. Ct. 

2090, 2098 (2021). The hour is too late for these theories to 

save the Government’s case.

C. Johnson Prevails on Plain-Error Review

The Government’s lack of evidentiary support as to 

“materiality” established, we turn last to the Olano factors, and 

conclude that relief is warranted. The first three are easily met,

and, “[a]lthough Rule 52(b) is permissive, not mandatory,” the 

Supreme Court has recently reminded us “that courts should

correct a forfeited plain error that affects substantial rights,” 

where it “seriously affects the fairness, integrity or public 

reputation of judicial proceedings.” Rosales-Mireles v. United 

States, 138 S. Ct. 1897, 1906 (2018) (cleaned up). Generally, 

the government’s failure to prove an essential element of an 

offense is a miscarriage of justice—one sufficient to warrant 

reversal of the conviction for plain error. See, e.g., United 

States v. Morton, 993 F.3d 198, 206 (3d Cir. 2021); Castro, 

704 F.3d at 138; United States v. Retos, 25 F.3d 1220, 1231–

32 (3d Cir. 1994); United States v. Xavier, 2 F.3d 1281, 1287 

(3d Cir. 1993). Nothing here encourages us to depart from this 

general rule. To permit Johnson’s conviction to stand, as we 

put it recently, “would be to endorse conviction merely for 

being bad—an outcome abhorrent to the tenet that, in our legal 

system, we convict people only of specific crimes.” United 
26

States v. Harra, 985 F.3d 196, 211 (3d Cir. 2021) (internal 

quotation marks omitted). We will not do so.

III. CONCLUSION

Let there be no doubt on two points. First, Johnson’s 

conduct was not just a waste of public time and resources. It 

disrupted the administration of justice, interfered with the 

orderly work of the federal courts, and flouted the respect due 

to judges and attorneys sworn to uphold the law. Much more 

than a warning about our internet-addicted culture, Johnson’s 

actions are a reminder that respect for the rules that support the 

law is inseparable from the rule of law itself. 

But a second follows: for bad acts to constitute crimes, 

at trial the Government must prove each element beyond a 

reasonable doubt. This is because the Government, through the 

United States Attorney, “is the representative not of an 

ordinary party to a controversy, but of a sovereignty whose 

obligation to govern impartially is as compelling as its 

obligation to govern at all; and whose interest, therefore, in a 

criminal prosecution is not that it shall win a case, but that 

justice shall be done.” Berger v. United States, 295 U.S. 78, 88 

(1935). That is why the right to the jury trial “is justly esteemed 

one of the principal excellencies of our constitution.”

Thompson v. Utah, 170 U.S. 343, 350 (1898) (quoting Juries, 

3 Matthew Bacon, A New Abridgment of the Law (1736)). A

“great privilege,” brought to the United States as a “birth-right 

and inheritance . . . against the approaches of arbitrary power” 

demands proof of each element specified by the people, 

through Congress, constituting a crime sufficient to forfeit 

liberty. 3 J. Story, Commentaries on the Constitution of the 

United States § 1773, at 652–53 (1833).
27

That ancient guarantee was not honored. While 

Johnson’s actions were malicious, the Government failed to 

prove they were material to the only decisionmaker identified 

at trial, the Judge. And Congress requires both falsity and 

materiality to impose liability under 18 U.S.C. § 1001. As a 

result, we will reverse Johnson’s false statement (Count 1) and 

aggravated identity theft (Count 2) convictions, remanding for 

the entry of a judgment of acquittal.