                                _____________

                                No. 95-3222SD
                                _____________

United States of America,             *
                                      *
                 Appellant,           *
                                      *   Appeal from the United States
     v.                               *   District Court for the District
                                      *   of South Dakota.
Roger J. Raether; Russell             *
Hawkins,                              *
                                      *
                 Appellees.           *
                                _____________

                         Submitted:   March 11, 1996

                           Filed: April 22, 1996
                                _____________

Before FAGG, BRIGHT, and WOLLMAN, Circuit Judges.
                              _____________


FAGG, Circuit Judge.


     Roger J. Raether and Russell Hawkins helped two Indian tribes obtain
government equipment through the federal government's program for disposing
of excess property.     The program is administered by the General Services
Administration (GSA).   Contrary to GSA regulations, the tribes immediately
resold some of the equipment.     The Government then charged Raether with
making material false statements to the GSA about the equipment's use, in
violation of 18 U.S.C. § 1001 (1994).      Alleging Hawkins conspired with
Raether to make the false statements, the Government charged both Raether
and Hawkins with conspiracy to commit an offense against the United States.
See 18 U.S.C. § 371 (1994).    At trial, over defense counsel's objections,
the district court decided Raether's statements were material as a matter
of law and instructed the jury not to consider materiality.       The jury
returned a guilty verdict on both counts, and the district court entered
judgment on the verdict.         A few weeks later, the Supreme Court held that
when materiality is an essential element of a false statement crime, the
Constitution requires trial courts to submit the issue of materiality to
the jury.   United States v. Gaudin, 115 S. Ct. 2310, 2320 (1995).               Raether
and Hawkins moved for a new trial based on Gaudin, and the district court
granted the motion.       The Government appeals.          We affirm.


      In treating materiality as a question of law, the district court
followed well-established circuit law.               See, e.g., United States v.
Richmond, 700 F.2d 1183, 1188 (8th Cir. 1983).             Gaudin teaches that we and
the   district   court    were    wrong.      The   question   of    whether   Raether's
statements were material, that is, whether the statements were capable of
influencing the GSA, see United States v. Wodtke, 951 F.2d 176, 178 (8th
Cir. 1991), was for the jury to decide.                Materiality is an essential
element of an 18 U.S.C. § 1001 offense.             United States v. Wells, 63 F.3d
745, 750 (8th Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3534 (U.S.
Jan. 31, 1996) (No. 95-1228).        No matter how overwhelming the evidence of
materiality, the district court was not permitted to direct a finding for
the Government on this element of the § 1001 charge against Raether.
Gaudin, 115 S. Ct. at 2316;          Sullivan v. Louisiana, 508 U.S. 275, 277
(1993).     The district court also should have instructed the jury to
consider    materiality    when    deciding      whether   Hawkins    and   Raether   had
conspired to violate § 1001.


      Nevertheless, the Government contends the district court should not
have granted a new trial because the instructional error was harmless
beyond a reasonable doubt.         See Chapman v. California, 386 U.S. 18, 24
(1967).    Hawkins and Raether assert the harmless error rule does not apply
in this case.    They claim Gaudin errors are structural errors rather than
trial errors and thus always require reversal.             See Arizona v. Fulminante,
499 U.S. 279, 309-310 (1991).




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      We conclude Gaudin errors are trial errors subject to harmless error
review.     There is a strong presumption that constitutional errors can be
harmless.    Rose v. Clark, 478 U.S. 570, 578-79 (1986).    The Supreme Court
has applied the harmless error analysis to jury instructions that misstated
an element of a crime and to instructions that set out unconstitutional
presumptions about required elements.       See Yates v. Evatt, 500 U.S. 391,
402   (1991)    (unconstitutional   rebuttable   presumption);    Carella   v.
California, 491 U.S. 263, 266-67 (1989) (per curiam) (unconstitutional
mandatory presumption);      Pope v. Illinois, 481 U.S. 497, 503 (1987)
(element misstated).    The only instructional error the Court has classified
as structural was a faulty reasonable doubt instruction that improperly
lowered the Government's burden of proof on all the elements of a charged
offense.     See Sullivan, 508 U.S. at 278, 281-82.      Because the jury in
Sullivan did not make any findings under the correct standard of proof, the
Court had no basis for determining how the erroneous instruction affected
the jury's decisionmaking and the Court could not perform a meaningful
harmless error review.      Id. at 280-81.       In contrast, at Raether and
Hawkins's trial, the district court's failure to let the jury decide the
materiality issue did not prevent the jury from properly deciding the other
issues in the case.    Accordingly, it is appropriate for us to examine the
record and consider whether the error was harmless.      See United States v.
Nguyen, 73 F.3d 887, 894-95 (9th Cir. 1995); United States v. Parmelee, 42
F.3d 387, 391, 393 (7th Cir. 1994), cert. denied, 116 S. Ct. 63 (1995);
United States v. Williams, 935 F.2d 1531, 1536 (8th Cir. 1991), cert.
denied, 502 U.S. 1101 (1992).       But see United States v. DiRico, No. 94-
1471, 1996 WL 93664, at *5 (1st Cir. Mar. 11, 1996);        United States v.
Pettigrew, No. 94-50182, 1996 WL 107236, at * 4 (5th Cir. Mar. 11, 1996);
United States v. Johnson, 71 F.3d 139, 144-45 (4th Cir. 1995).


      The error was harmless if "the jury's actual finding of guilty . .
.   would surely not have been different absent the




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constitutional error."    Sullivan, 508 U.S. at 280.    We are not persuaded
beyond a reasonable doubt that the district court's faulty instruction on
materiality "played no significant role in the finding of guilt."     Id. at
281;     see Yates, 500 U.S. at 403-04.   The district court told the jury
Raether's statements were material, and the record does not show the jury
made an independent determination about materiality.          The Government
theorizes that because the jury rejected certain defenses raised at trial,
the jury must have believed Raether's false statements were significant to
the GSA and thus material.   We cannot be sure the jury engaged in the same
line of reasoning as the Government, however.       The jury did not make any
findings that are so closely related to the materiality issue that they are
functionally equivalent to a materiality finding.     See Sullivan, 508 U.S.
at 280-81 (citing Carella, 491 U.S. at 271 (Scalia, J., concurring in
judgment));     Nguyen, 73 F.3d at 895.    We are not permitted simply to
speculate about what the jury would have decided if the district court had
properly instructed them.    Sullivan, 508 U.S. at 281.      The lesson from
Gaudin is that juries, not judges, should decide all the elements of a
charged crime.    See Gaudin, 115 S. Ct. at 2320.


       Because the Gaudin error in this case was not harmless beyond a
reasonable doubt, we affirm the district court's decision to grant a new
trial.


       A true copy.


             Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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