1 W e do not withdraw the original opinion rendered in this

case. That opinion, after discussing issues not before the court

on remand, found simply that “Waldron’s remaining claims have no

merit.” Waldron

, 53 F.3d at 684. Because we conclude on remand

that Waldron’s Gaudin claim has no merit, we will not disturb the

1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-30083

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

THOMAS S. WALDRON,

Defendant-Appellant.

Appeal from the United States District Court

For the Middle District of Louisiana

July 21, 1997

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, DUHÉ, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge.

PROCEDURAL HISTORY

Two years ago, this court affirme d Waldron’s convictions on

six counts of making false statements to a federally insured bank

in violation of 18 U.S.C. § 1014. U nited States v. Waldron

, 53

F.3d 60 (5th Cir. 199 5) 1

. The Supreme Court granted Waldron’soriginal opinion.

2

Petition for Writ of Certiorari, vacated the judgment, and remanded

for reconsideration in light of United States v. Gaudin

, 115 S. Ct.

2310 (1995). W aldron v. Un ited States , 116 S. Ct. 333 (1995).

Gaudin held that, because materiality of a false statement alleged

in a 18 U.S.C. § 1001 pro secution (making false statements in a

matter within the jurisdiction of a federal agency) is an element

of the crime, it must be submitted to the jury, rather than decided

by the court.

This court then granted a motion to hold Waldron in abeyance

after the Supreme Court granted certiorari in United States v.

Wells

, 117 S. Ct. 921 (1997). On February 26, 1997, the Supreme

Court decided Wells

, holding that materiality is not an element of

§ 1014. The parties then rebriefed the Gaudin and W ells issues.

We now affirm Waldron’s convictions.

JURY INSTRUCTION ON MATERIALITY

Waldron contends that he is entitled to a new trial because

the district court’s materiality instruction created an

irrebuttable presumption regarding proof of the mental element of

the crimes for which he was being tried.

The District Court instructed the jury:

As to the fourth element that must be proved beyond

a reasonable doubt in thi s case. As to these courts I

should say counts 3 through 9 [sic], you are instructed

that a material statement is one that is capable of

influencing a financial institution in determining

whether or not to make a certain loan.

Now, this question of material statement i s not a

question for you to decide. I have decided that question

and you are hereby instructed that the statements alleged3

to be false contained in counts 3 through 10 are all

material statements.

Now, while I have found, under the law, that each of

the statements was material, that is cap able of

influencing Sun Belt in acting on the loan applications,

you mus t decide whether the defendant knowingly caused

false statements to be ma de for the purpose of

influencing the bank on an application for a loan.

This statute, the false statement statute, prohibits

the making of false statements to federally insured banks

for the purpose of influencing the actions of the bank.

False statements given to insured banks have the

potential to mislead auditors of the bank and examiners

of the Home Loan Bank Board. Consequently the Government

need not show that officials of the bank actually relied

upon any false statem ent or that officials of the Bank

were actually influenced by false statements.

The essence of the offense charged in counts 3

through 10 is the making of a statement with intent to

influence the lending institution.

Waldron’s counsel objected to the materiality instruction:

I think I was talking about the materiality

instruction. I object to your honor instructing the jury

that the statements are material. It is simply not a

matter for them to consider and I don’t think this should

have been instructed at all. I do feel that an

instruction like that is prejudicial to the defense and

is unnecessary.

The Supreme Court has held that the Due Process Clause

protects an accused against conviction except upon proof beyond a

reasonable doub t of every fact necessary to constitute the crime

with which he is charged. S andstrom v. Montana

, 422 U.S. 510, 520,

99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). That case differentiated

between permissive inferences, which do not violate a defendant’s

due process rights, and conclusive presumptions or burden shifting

presumptions, which do. Waldron contends that the district court’s

instruction established as a matter of law a fact which was

essential to and intertwined with the intent element of the charged

offense, thus creating an irrebuttable conclusion regarding a fact4

which proved the “purpose of influencing” state of mind r equired

for conviction. Waldron argues, in the alternative, that the

instruction shifted the burden of persuasion to him on the element

of intent.

The gov ernment contends that the instruction, viewed as a

whole, simply defined a material statement as one cap able of

influencing a financial institution. The jury was not told that it

had to find i ntent, but was allowed to infer intent from the

existence of materiality. The jury was explicitly told it had to

independently decide whether Waldron made the statements “for the

purpose of influencing the bank.”

Because Waldron did not posit a due process objection to the

distri ct court’s instruction, which instruction was an accurate

articulation of the controlling Fifth Circuit law at the time it

was given, we employ the plain error standard of review. U nited

States v. Blocker , 104 F.3d 720, 735 (5th Cir. 1997). Under Fed.

R. Crim. P. 52(b), this court may correct forfeited errors only

when the appellant shows (1) there is an error, (2) that is clear

or obvious, and (3) that affects his substantial rights. Id. If

these factors are established, the deci sion to correct the

forfeited error is within the sound discretion of the court, and

the court will not exercise that discretion unless the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings. I d. A ssuming that the first three factors

are met in this case, we decline to exercise our discreti on to

correct the error, because we do not find that the fairness,5

int egrity or public reputation of the judicial proceedings were

compromised by the jury instruction given. S ee United States v.

Nash

, 1997 WL 345977, F.3d (9th Cir. 1997)(holding that the

district court’s instruction that the statements allegedly made in

violation of § 1014 were material as a matter of law did not take

an element away from the jury and was therefore harmless). The

instructions given in this case were clear concerning the

presumption of Waldron’s innocence and the jury’s duty to determine

mens rea. Our decision is further buttressed by the jury’s

decision to acquit Waldron on two § 1014 counts. We cannot

conclude, based on the record in this case, that Waldron’s due

process rights were violated because the jury instructions did not

create a conclusive presumption or shift the government’s burden of

proof on the element of intent to the defendant.

We therefore affirm Waldron’s convictions.

AFFIRM.