In United States v. Joseph R. Johnson, No. 20-1449, 2021 WL 5492600 (Nov. 23, 2021), Judge Matey writes for a panel that also includes Judges Smith and Fisher to grant plain error relief for failure to prove materiality. This statutory construction direct appeal could have broader applications in other contexts involving materiality. Thanks to Claudia Van Wyk, Assistant Federal Defender, Eastern District of Pennsylvania, for this summary!
The attorney for one of the plaintiffs who sued Bill Cosby filed a praecipe with the district court to file an attachment that had been omitted from a previous motion. Joseph Johnson, a Bill Cosby supporter, was convicted of making materially false, fraudulent and fictitious statements and representations, 18 USC sec. 1001, for subsequently hand-filing a document which purported to be the same praecipe, but which attached various documents and emails critical of the plaintiff in the lawsuit. His deception was discovered and the FBI located and charged him. Judge Matey summarizes the Circuit panel’s holding:
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.
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.
Judge Matey employs the following reasoning:
- Johnson did not preserve the sufficiency challenge he brings in the Circuit because his general Rule 29 motion during trial and his post-trial motion for acquittal focused on the lack of evidence that he “caused” the false statement to be filed and did not mention materiality.
- Johnson is entitled to plain error review under the 4-part framework of US v. Olano. Because insufficient evidence requires reversal when upholding the conviction would result in a fundamental miscarriage of justice, that standard is satisfied.
- The government did not prove materiality, which requires that the false statement have “a natural tendency to influence or be capable of influencing the decision of the decision making body to which it was addressed.” While the agency need not necessarily actually rely on the false statement, it has to be of a type capable of influencing a reasonable decisionmaker. Here, the judge who dismissed Johnson’s false praecipe testified that he generally relies on the docket in all his rulings. The document was not even relevant to the proceedings here and the judge’s only act in relation to the document was to strike it from the docket. That is not materiality, Matey rules. The judge’s testimony about his general reliance on his docket established only relevance, not materiality. Those are two different things. And the fact that the praecipe was stricken is evidence it was false but not that it was material. Matey rejects a new theory of relevance offered by the Government—that the statement was material because it caused the clerk to file the document in the first place. This theory was not considered by the jury and was unsupported by the record.
- The government’s failure to prove an essential element of an offense is generally a miscarriage of justice, and it is a miscarriage here.
The panel remands for the entry of a judgment of acquittal.