                                      REVISED
                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT

                             ____________________

                                 No. 96-60394
                             ____________________

                           UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                       versus

                     PHILIP K. SHUNK and LINDA M. SHUNK,

                                                          Defendants-Appellants.

_________________________________________________________________

            Appeal from the United States District Court
              for the Southern District of Mississippi

_________________________________________________________________
                           May 8, 1997

Before REAVLEY, KING, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

      At   issue      is   whether,    in     the     light   of   the   well-known

proscriptions imposed by Teague v. Lane, 489 U.S. 288 (1989), on
retroactive     application      of    new      rules    to   collateral      review

proceedings, the rule established in United States v. Gaudin, ___

U.S. ___, 115 S. Ct. 2310 (1995) (materiality element for 18 U.S.C.

§   1001   to   be    decided   by    jury,     not    judge),     can   be   applied

retrospectively in a § 2255 proceeding pertaining to a similar

offense (18 U.S.C. § 1006).           The district court held that it could

not and, therefore, denied § 2255 relief.                We AFFIRM.

                                         I.
     Philip   K.   and    Linda   M.    Shunk   were   charged   with    various

offenses committed while they served as officers and directors of

Republic Bank for Savings, F.A. (Republic).            The pertinent charges

were conspiracy to misapply funds of Republic, to defraud Republic,

and to deceive Federal Home Loan Bank Board examiners by making

false statements in the reports of, and statements for, Republic,

in violation of 18 U.S.C. §§ 2 and 371; and Philip Shunk’s making

false statements in Republic’s records and reports, in violation of

18 U.S.C. § 1006.

     At trial, the Shunks proposed an instruction that would have

submitted the materiality vel non of the false statements to the

jury; but, the court ruled, over the Shunks’ objection, that such

materiality had been established as a matter of law.                    The jury

found against the Shunks.

     The   Shunks        withdrew      their    direct     appeal       in 1992.

Concomitantly, having cooperated with the Government on related

criminal charges against other Republic officers, they received

substantial FED. R. CRIM. P. 35 sentence reductions.

     This notwithstanding, the Shunks sought relief in 1995 under

28 U.S.C. § 2255, contending that their convictions were unlawful

because the district court had refused to present the materiality

element to the jury, contrary to the Supreme Court’s then recent

decision in United States v. Gaudin, 115 S. Ct. 2310 (1995).                But,

the court concluded that, under Teague, Gaudin could not be applied

retroactively in this § 2255 proceeding.




                                       - 2 -
                                     II.

     The Shunks contest the non-application of Gaudin.              We must

first consider a possible procedural bar and the effect, if any, of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214.

                                     A.

     An immediate sua sponte query is why, given our procedural bar

rule, see United States v. Guerra, 94 F.3d 989, 992-93 (5th Cir.

1996), the Shunks can even proceed under § 2255, in that they

withdrew their direct appeal in exchange for reduced sentences

under their Rule 35 agreement with the Government.         See id. at 993

(defendant precluded from collaterally attacking conviction where

he “had the opportunity to raise contested issues in a direct

appeal from his conviction but failed to do so”).

     Although the Government asserted a procedural bar in district

court, the court did not reach that issue because of its Teague

ruling.   On appeal, the Government has not pursued the procedural

bar issue, although it could have sought affirmance, of course, on

that basis.     E.g., Cross v. Lucius, 713 F.2d 153, 157 n.3 (5th Cir.

1983) (“We may, of course, affirm the district court’s decision on

any ground urged below, regardless of whether it was relied on by

the district court.”); Williams v. Butler, 819 F.2d 107, 108 n.1

(5th Cir. 1987).       Because the Government does not present that

issue   here,   we   will   not   address   it.   E.g.,   In   re   Asbestos

Litigation, 90 F.3d 963, 990 n.19 (5th Cir. 1996), petition for




                                    - 3 -
cert. filed, 65 U.S.L.W. 3611 (U.S. Feb. 27, 1997) (No. 96-1379);

Webb v. Investacorp, Inc., 89 F.3d 252, 257 n.2 (5th Cir. 1996).

                                      B.

         Section 2255 relief was denied in May 1996.            The previous

month, AEDPA had been signed into law.

                                      1.

         For a § 2255 proceeding, AEDPA amended 28 U.S.C. § 2253 to

require obtaining a certificate of appealability (COA) from a

“circuit justice or judge”      before an appeal may be taken from the

final order.      AEDPA, § 102; 28 U.S.C. § 2253(c)(1)(B).         To obtain

a COA, the applicant must make a “substantial showing of the denial

of   a    constitutional   right”.     28    U.S.C.   §   2253(c)(2).   This

standard, which applies to this appeal, requires the same showing

as that formerly required for obtaining a § 2253 certificate of

probable cause (federal habeas challenging state detention).             See

United States v. Orozco, 103 F.3d 389 (5th Cir. 1996); Drinkard v.

Johnson, 97 F.3d 751, 756 (5th Cir. 1996) cert. denied, 117 S. Ct.

1114 (1997).

         Although the Shunks have not requested a COA, we treat their

notice of appeal as such a request.          See Orozco, 103 F.3d at 392;

see also FED. R. APP. P. 22(b).       The COA is GRANTED.

                                      2.

         The Teague issue at hand is quite similar to subpart (3) of

the new limitations period imposed by AEDPA’s § 105.             As amended,

§ 2255 provides in pertinent part:




                                     - 4 -
               A 1-year period of limitation shall apply to a
               [§ 2255] motion ....    The limitation period
               shall run from the latest of —

               (1) the date on which the                  judgment        of
               conviction becomes final; ...

               (3) the date on which the right asserted was
               initially recognized by the Supreme Court, if
               that right has been newly recognized by the
               Supreme   Court   and    made   retroactively
               applicable to cases on collateral review....

       The Shunks sought § 2255 relief more than a year after their

convictions became final; therefore, if the new limitations period

under    AEDPA    applies,     they     must    satisfy    subpart    (3).         As   is

immediately apparent, it is almost a restatement of the Teague

issue here.      We will not pause, however, to decide whether this new

limitations rule has retrospective application.                     Needless to say,

it presents important and difficult issues. And, there are obvious

and quite forceful arguments against its application.                          See United

States v. Rocha, 1997 WL 123580, *1-*3 (5th Cir. 1997); Orozco, 103

F.3d at 390-92; Lindh v. Murphy, 96 F.3d 856, 861-67 (7th Cir.

1996), cert. granted in part, 117 S. Ct. 726 (1997).                   In any event,

neither side has presented the issue.                 We are satisfied that we

need    not    decide   it    and   can,      instead,    proceed    to    the    Teague

question.

                                           C.

       The Shunks contend that, in refusing to allow the jury to

decide materiality, the district court ran afoul of the Supreme

Court’s       subsequent     decision    in     Gaudin.     Whether       Teague    bars

application of Gaudin in this § 2255 proceeding is a question of



                                         - 5 -
law reviewed de novo.   E.g., United States v. Gipson, 985 F.2d 212,

214 (5th Cir. 1993).

     In Gaudin the Court held that, because materiality was an

element of the crime of making false statements in a matter within

the jurisdiction of a federal agency, 18 U.S.C. § 1001, a defendant

was entitled to have a jury decide whether the Government had

proved that element beyond a reasonable doubt.     Gaudin, 115 S. Ct.

at 2313-14.

     At issue is 18 U.S.C. § 1006 — making false entries in the

records of certain federal banking institutions.        That section,

unlike § 1001, does not explicitly mention the words “material” or

“materiality”; but, this circuit has held that materiality is an

element for a § 1006 offense.    See United States v. Pettigrew, 77

F.3d 1500, 1511 (5th Cir. 1996);     United States v. Tullos, 868 F.2d

689, 693-94 (5th Cir. 1989); United States v. Stovall, 825 F.2d

817, 822 (5th Cir.), amended, 833 F.2d 526 (5th Cir. 1987).

Therefore, under the reasoning of Gaudin, the refusal to give the

Shunks’ proposed jury instruction on materiality deprived them of

their Fifth and Sixth Amendment right to a jury determination of

guilt beyond a reasonable doubt on every element of the offense.

Gaudin, 115 S. Ct. at 2313.

     Shortly before oral argument for this appeal, the Court held

in United States v. Wells, 117 S. Ct. 921, 926-29 (1997), that

materiality was not an element for violation of 18 U.S.C. § 1014 —

making   false   statements     to    federally   insured   financial

institutions.    The Government contends that, because § 1006 is


                                - 6 -
similar to § 1014, materiality is also not an element for a § 1006

violation.      But, as noted, our court has held that materiality is

an element for a § 1006 offense, and we decline to not follow that

precedent      based   on   a    Supreme    Court    decision   dealing   with   a

different section. United States v. Zuniga-Salinas, 945 F.2d 1302,

1306-07 (5th Cir. 1991) (“[A]bsent an unequivocal contrary holding

by the Supreme Court, we must adhere to our prior decisions....”).

Instead, we assume that materiality remains an element for a § 1006

offense.

       On the other hand, the Court held in Teague that, “[u]nless

they    fall     within     an   exception      to   the    general   rule,   new

constitutional rules of criminal procedure will not be applicable

to those cases which have become final before the new rules are

announced”. Teague, 489 U.S. at 310 (emphasis added). The Shunks’

convictions became final in 1992, when they withdrew their direct

appeal;        Gaudin was rendered in 1995.                Therefore, if Teague

applies, the Gaudin rule must fall within one of the Teague

exceptions or the Shunks are precluded from raising Gaudin error in

this § 2255 proceeding.

                                           1.

       The Shunks’ maintain that Teague does not apply, insisting

that Gaudin created a rule of substantive criminal law, not of

criminal procedure; and that it is not “new” within the meaning of

Teague.    Each contention fails.

                                           a.




                                      - 7 -
     The claim that Gaudin is a rule of substantive law is premised

on the contention that it alters what the Government must prove in

a criminal matter.    But Gaudin explicitly states that the rule it

created was procedural.     Gaudin, 115 S. Ct. at 2319.          Moreover,

Gaudin did not change what the Government must prove; materiality

was always an element of a § 1001 offense.       See, e.g., Tullos, 868

F.2d at 693-94.      Instead, Gaudin changed the party to whom the

Government must prove materiality — from judge to jury.            Gaudin,

115 S. Ct. at 2313-14.

                                   b.

     In addition, Gaudin created a “new” rule within the meaning of

Teague.    Although    defining   the     parameters   of    “newness”   for

retroactivity purposes is often difficult, the Court has stated

that, “in general ... a case announces a new rule when it breaks

new ground or imposes a new obligation on the States or the Federal

Government”.   Teague, 489 U.S. at 301.      Restated, a new rule is one

where “the result was not dictated by precedent existing at the

time the defendant’s conviction became final”.         Id.

     The Shunks maintain that the Gaudin rule is not “new” because

of the manner in which the Court decided that case. It held that a

defendant has a constitutional right to have a jury find him guilty

of all elements of the crime beyond a reasonable doubt; materiality

is an element for a § 1001 violation; therefore, a defendant has a

constitutional right to have a jury decide that issue. Gaudin, 115

S. Ct. at 2313-14; 18 U.S.C. § 1001.             The Shunks’ read this

syllogism to mean that Gaudin implicitly concluded that the result


                                  - 8 -
was dictated by existing precedent, a reading they bolster with the

Court’s treatment of the Government’s contentions in that case.

See Gaudin, 115 S. Ct. at 2315 (“[T]he Government’s position ...

has   absolutely   no    historical   support.”);         id.   at   2318   (“[The

Government’s]   proposition     is    contrary       to   the   uniform     general

understanding [of] the Fifth and Sixth Amendments ....”); id. at

2318-20   (dismissing     Government’s       stare    decisis    contention      by

distinguishing prior Court cases).

      This notwithstanding, having the judge, instead of the jury,

decide materiality was accepted practice throughout the Country

prior to Gaudin.        See United States v. Gaudin, 28 F.3d 943, 955

(9th Cir. 1994) (en banc) (Kozinski, J., dissenting) (“Every other

circuit to have considered whether materiality under 18 U.S.C. §

1001 is a question of fact or a question of law — which means every

circuit except the Federal — has held that it’s a question of law

....”) (collecting cases), aff’d, 115 S. Ct. 2310 (1995). In fact,

the Gaudin Court acknowledged that its prior precedent, such as

Sinclair v. United States, 279 U.S. 263 (1929), came very close to

supporting the Government’s position in Gaudin, although Sinclair

was not “strictly controlling”.         Gaudin, 115 S. Ct. at 2318.             The

Court, therefore, was forced to conclude that it could not “hold

for [Gaudin] today while still adhering to the reasoning and the

holding of [Sinclair]”.       Id.    In short, Gaudin created a new rule

for Teague purposes.

                                      2.




                                     - 9 -
     The Teague rule that new criminal procedural rules cannot be

applied retroactively on collateral review has two exceptions. The

first, which the Shunks do not claim applies, is when the new rule

places “certain kinds of primary, private individual conduct beyond

the power of the criminal law-making authority to proscribe”.

Teague, 489 U.S. at 307 (citation and quotation marks omitted).

     They do, however, claim shelter under the second exception,

which is for those new rules requiring the observance of procedures

“implicit in the concept of ordered liberty”.            Id. (citation and

quotation marks omitted).       The Court described them as watershed

rules of criminal procedure” that are “central to an accurate

determination of innocence or guilt”.           Id. at 311, 313 (emphasis

added).    Needless to say, and as the Court noted, it is “unlikely

that many such components of basic due process have yet to emerge”.

Id. at 313.      In contending that Gaudin created such a watershed

rule, the Shunks rely on Supreme Court and Fifth Circuit cases

involving jury instructions on reasonable doubt.

      The Court held in Cage v. Louisiana, 498 U.S. 39, 41 (1990),

that the reasonable doubt instruction in issue was unconstitutional

because it impermissibly reduced the Government’s burden of proof.

However,   our   court   held   that   Cage    error   was   not   applicable

retroactively on collateral review because it did not meet the

second (watershed) Teague exception.          Skelton v. Whitley, 950 F.2d

1037, 1044-46 (5th Cir. 1992).

     Next, in Sullivan v. Louisiana, 113 S. Ct. 2078, 2082-83

(1993), the Court held that Cage error was a “structural[] defect


                                  - 10 -
in the constitution of the trial mechanism”, making it not amenable

to harmless error analysis. Our court stated later in Schneider v.

Day, 73 F.3d 610, 611 (5th Cir. 1996), that this conclusion was an

implicit   recognition   that   Cage      error   met   this    second   Teague

exception. (As discussed infra, this statement in Schneider is not

binding precedent.)

     Moreover, our court held recently in Pettigrew, 77 F.3d at

1511, that Gaudin error is structural, making harmless error

analysis inapplicable.    Pettigrew so held because the jury did not

render a verdict as to the element of materiality.               Id.

     The even more recent statement in United States v. Jobe, 101

F.3d 1046, 1062 (5th Cir. 1996), that Pettigrew does not establish

Gaudin error as    “per se reversible” is not inconsistent with such

error   being   structural.     In   Jobe,    unlike     in    Pettigrew,   the

defendants did not object at trial to the jury charge; therefore,

any Gaudin error was subject to our narrow plain error review.              Id.

at 1061.    Restated, Jobe determined simply that the fact that

Gaudin error requires reversal when preserved does not mean that it

likewise requires reversal when not preserved.

     Here, the Shunks — as was done in Pettigrew — objected at

trial to the charge; thus, Pettigrew controls.                Accordingly, the

Shunks reason that, because we stated in Schneider that Cage

structural error met the second Teague exception, we must hold

likewise for Gaudin error.      We disagree.

                                     a.




                                 - 11 -
       First, in Brown v. Cain, 104 F.3d 744, 753 (5th Cir. 1997),

cert. denied, 1997 WL 194482 (U.S. Apr. 23, 1997) (No. 96-8624),

our court held very recently that the Cage/Teague statement in

Schneider is not binding precedent in this circuit.                          This is

because in an earlier, unpublished opinion, Smith v. Stalder, No.

93-3683, 26 F.3d 1118 (5th Cir. 1994) (per curiam) (table), our

court concluded that Sullivan did not affect our conclusion in

Skelton that Cage error did not fall within the second Teague

exception, because Sullivan was a direct appeal and did not involve

the    retroactive     application    of       the   Cage   rule.        “Unpublished

opinions issued before January 1, 1996 are precedent”, 5TH CIR. LOCAL

R.    47.5.;   and,    it   goes    without      saying     that,    except     under

circumstances not present here, one panel is not free to disregard

the decision of a prior panel.            E.g., Brown, 104 F.3d at 753.            We

are,    therefore,     bound   by   the    earlier     holding      in    Smith;   any

discrepancy between it and Schneider can be corrected only by our

court en banc.        Id.; FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.

1993).

                                          b.

       In addition, we have a far more fundamental disagreement with

the Shunks’ position. Even assuming arguendo that Cage error meets

the second Teague exception, it does not necessarily follow that

all structural errors do. As noted, rules requiring the observance

of procedures “implicit in the concept of ordered liberty” are

“watershed” rules, of which few have yet to emerge.                  Requiring the

Government to prove materiality to the jury, instead of the judge,


                                     - 12 -
is not a “watershed” rule of criminal procedure, even though Gaudin

was a clear break with prior decisions.         Obviously, the fact that

the Gaudin rule is new does not necessarily make it “watershed”.

Furthermore, one can easily envision a system of “ordered liberty”

in which certain elements of a crime can or must be proved to a

judge, not to the jury.

     In   sum,   Gaudin   error   does    not   meet   the   second   Teague

exception.   Accord United States v. Swindall, 107 F.3d 831, 836

(11th Cir. 1997) (“The Gaudin rule ... is not a watershed rule ...

that alters our understanding of the bedrock procedural elements

essential to the fairness of a proceeding.”).

                                   III.

     Accordingly, the denial of § 2255 relief is

                                                             AFFIRMED.




                                  - 13 -
