                                                                          PUBLISH

                    IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                            ________________________________

                                 Nos. 95-4099 and 95-4596
                            ________________________________
                                                                           FILED
                                                                   U.S. COURT OF APPEALS
                               D.C. Docket No. 94-322-CR-JM          ELEVENTH CIRCUIT
                                                                          09/23/98
                                                                      THOMAS K. KAHN
UNITED STATES OF AMERICA,                                                  CLERK

                                                   Plaintiff-Appellee,

                             versus

DANIEL J. FERN,

                                                   Defendant-Appellant.


_________________________________________________________________

                    Appeals from the United States District Court
                         for the Southern District of Florida
_________________________________________________________________
                                (September 23, 1998)


                                   On Petition for Rehearing


Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL*, Senior Circuit Judge.

________________________________
*
 Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for the Second Circuit, sitting by
designation.
HATCHETT, Chief Judge:

       Upon motion for reconsideration, the prior panel opinion, reported at 117 F.3d 1298, is

withdrawn, and the following opinion is substituted in its stead.

       In this consolidated appeal, we affirm the convictions of Daniel Fern for mail fraud,

attempted witness tampering and violations of the Clean Air Act.

                                              FACTS

       The events leading up to Fern’s indictment and eventual convictions began on October 3,

1993. Early that morning, a fire partially damaged the Monte Carlo Oceanfront Resort Hotel, a

thirteen-story building on Miami Beach. The Monte Carlo was insured for up to two million

dollars under a fire loss policy the Lexington Insurance Company issued. Under the fire loss

policy, Lexington agreed to pay for asbestos removal and contamination at the Monte Carlo, but

only if the asbestos-related contamination occurred as a result of a fire.

       Shortly after the fire, Waquar Ahmed Khan, the president of the company that owned the

Monte Carlo, contracted with Fern to determine whether the Monte Carlo’s conference room and

suites were contaminated with asbestos as a result of the fire. At the time, Fern owned an

asbestos testing and consulting firm known as Air Environmental Research Services (AER).

Fern then orchestrated a fraudulent scheme to (1) convince Lexington that the Monte Carlo was

contaminated thoroughly with asbestos; and (2) profit from a bogus asbestos abatement project

at the Monte Carlo.

       The scheme unfolded, in part, as follows. Fern directed the Monte Carlo project

manager, Jerry Joyner, to take a piece of “Mag Block” -- a material containing chalky, crushable

asbestos -- from a crawl space at the Monte Carlo. Fern then directed Jerry Joyner to take some



                                                  2
“hot” air samples from the Monte Carlo using the Mag Block to spike the samples. (In total,

Jerry Joyner spiked over twenty samples, often in the presence of Fern, Fern’s wife or other AER

employees.) After Jerry Joyner spiked the samples, he labeled some of them -- at Fern’s request

-- as if they came from the Monte Carlo’s pipe-chases. Fern made this request in order to

support a claim of asbestos contamination within the entire Monte Carlo resort.

       After receiving test results from the spiked air samples, Fern’s company, AER, proceeded

to prepare an emergency action plan detailing a proposed asbestos abatement project for the

Monte Carlo. Neither Fern nor AER was licensed to conduct asbestos abatement or removal

work. Consequently, Fern needed to list the name of an authorized asbestos abatement company

on the asbestos abatement project paperwork required under 42 U.S.C. § 7413, a provision of the

Clean Air Act.1

       On October 13, 1993, Fern, or one of his employees, filed the first of three Ten-Day

Notices completed during the course of the proposed Monte Carlo asbestos abatement project.

This Ten-Day Notice -- as well as subsequent notices filed on December 14, 1993, and April 4,

1994 -- contained false responses indicating that a company named Action Systems Unlimited,

Inc., was responsible for the asbestos abatement project at the Monte Carlo, and that Judy Joyner

-- Jerry Joyner’s sister-in-law and the president of Action Systems -- was the on-site supervisor.2

The Ten-Day Notice also contained Judy Joyner’s forged signature on the notice lines indicating



  1
       Specifically, Fern needed to list the name of an authorized company on government-
required “Notification of Demolition and Renovation” forms, commonly known as “Ten-Day
Notices.”
   2
       The third notice is slightly different from the first two notices and is captioned “Notice of
Asbestos Removal Project.” While the first two notices are two-page forms, the third notice is a
one-page form. The differences between the forms do not affect our analysis.

                                                 3
that the information on the notice was correct and that an appropriately trained individual would

be on-site at the Monte Carlo during the asbestos abatement project.3 The first and third Ten-

Day Notices also contain references to Judy Joyner’s Florida asbestos removal license number.

       Neither Judy Joyner nor Action Systems ever did any work at the Monte Carlo.

Moreover, Judy Joyner testified at trial that she never authorized anyone to sign her name, use

Action Systems's name or use her asbestos removal license number on a Ten-Day Notice for the

Monte Carlo asbestos abatement project. Nevertheless, Fern instructed Jerry Joyner to tell

anyone who inquired that he worked for Action Systems and that Action Systems was the actual

asbestos removal contractor at the Monte Carlo.

       At trial, two officials with the Metropolitan Dade County Department of Environmental

Resources Management (DERM) testified about the significance of the Ten-Day Notices.

According to Hugh Wong, chief of DERM’s Air Pollution Control section, Ten-Day Notices are

federally required notices that provide information on sites so that regulators can make sure that

work is going to be done properly. Wong testified that he “absolutely” relied on the information

contained in Ten-Day Notices and that it is important for the information to be accurate. Wong

also indicated that DERM uses the information in Ten-Day Notices to determine if the contractor

is certified or not, and stated that “if we have not inspected that contractor’s work before, we try

and target the inspections [to that contractor].” Ray Gordon, a DERM asbestos supervisor,

testified that before employees in his office input information from Ten-Day Notices into their

computers, they check to make sure that the contractor has a license number noted on the Notice



   3
        The text under Judy Joyner’s forged signature indicated that the signature above
belonged to the “Owner/Operator” -- an apparent reference to the facility owner or renovation
project supervisor.

                                                  4
and that the contractor is familiar to them. According to Gordon, the only way DERM officials

can know if the individual removing asbestos is properly trained is “if they have the appropriate

license.”

       In addition to submitting false Ten-Day Notices, Fern, and/or AER, also filed documents

representing that the contents of the Monte Carlo (e.g., room furnishings and equipment) had to

be destroyed because of asbestos contamination. In actuality, Fern gave away, sold or kept most

of the Monte Carlo’s furnishings and equipment.

       Ultimately, Fern submitted a bill for over five hundred thousand dollars to the Monte

Carlo for the cost of the bogus asbestos abatement project. The bill was converted into a proof-

of-loss and submitted to Lexington via the mail. At trial, Daniel Corbeil, a former co-owner of

Action Systems, testified that Fern bragged to him about how he fooled Lexington with spiked

samples and with the Action Systems license.

       In 1994, the Environmental Protection Agency (EPA) started investigating Fern’s work at

the Monte Carlo. Jerry Joyner and other AER employees cooperated with the EPA. Jerry Joyner

played a critical role in the investigation; he taped his conversations with Fern. During those

conversations, Fern offered Jerry Joyner ten thousand dollars to mislead investigators and told

him to lie to the grand jury.

                                  PROCEDURAL HISTORY

       A grand jury indicted Fern on June 16, 1994, charging him with one count of witness

intimidation. The government obtained a superseding indictment from the grand jury on August

12, 1994, charging Fern with eight other counts: three counts of making false statements, four

counts of mail fraud and one count of witness tampering.



                                                5
       Fern’s first trial began on November 28, 1994. Prior to the testimony of the

government’s first witness, Fern moved to dismiss the three false statement counts of the

indictment for failure to allege essential elements of the charged crime. Fern argued that the

indictment was insufficient because it did not allege that the statements were made willfully or

that the statements were material. Fern also argued that the indictment did not inform him of the

specific statements that were allegedly false. The district court denied Fern’s motion and

allowed the government to proceed with its presentation of evidence on all counts of the

indictment.4

       On November 28, 1994, the government called its first witness, Bureau of Alcohol,

Tobacco and Firearms (ATF) Special Agent Nelson Vasquez. Two days after Vasquez testified,

on December 1, 1994, the prosecutor received a sworn statement dated December 1, 1994, from

ATF Internal Affairs. The statement revealed that Vasquez misused his government credit card

and was under investigation for theft of government property. The next day, Friday, December

2, 1994, the prosecutor produced a Brady disclosure regarding the Vasquez misconduct. The

following trial day, Monday, December 5, 1994, Fern sought to recall Vasquez to the stand for

further examination. The prosecutor informed Fern that Vasquez would invoke the Fifth

Amendment and decline to answer defense questions. After verifying this, Fern asked for a

mistrial, which the district court granted.




   4
        In her response to Fern’s motion to dismiss, the prosecutor specifically indicated that the
false statements on the Ten-Day Notices were as follows: (1) statements indicating that Action
Systems was the contractor doing the abatement project; (2) statements indicating that Judy
Joyner was the project’s contact person; and (3) statements indicating that Judy Joyner signed
the Ten-Day Notices. Fern did not renew his motion to dismiss the indictment prior to his
second trial.

                                                 6
       Fern subsequently moved to dismiss the case based on the Double Jeopardy Clause. Fern

based his motion on the fact that Thomas Mulvihill, an Assistant United States Attorney (AUSA)

in the Public Corruption Section, knew about the Vasquez investigation as early as November

15, 1994, but never shared his knowledge with the prosecutor in Fern’s case.

       The district court conducted an evidentiary hearing on the mistrial motion during which

the district court questioned the prosecutor and AUSA Mulvihill, and heard arguments from the

prosecutor and Fern regarding applicable case law. The district court also allowed Fern to

question Mulvihill. During questioning, Mulvihill testified that he learned about allegations

against Vasquez as a result of a conversation with an ATF Internal Affairs agent. During the

conversation, the ATF agent told Mulvihill that it was possible that a “totally innocent

explanation” existed for Vasquez’s actions. Mulvihill also indicated that he and the ATF agent

agreed that the matter should initially proceed through the ATF’s administrative process.

Mulvihill then stated that he did not even hear about the Vasquez matter again until after Fern’s

trial commenced. Mulvihill further testified that he was unaware that Vasquez was the case

agent in any pending cases. Finally, Mulvihill stated that he was unaware of any policy

requiring him to notify other attorneys about allegations against ATF agents that his office was

not pursuing.

       After considering the evidence and arguments, the district court orally denied Fern’s

motion. The district court later entered a written order denying Fern’s mistrial motion and

Fern’s ore tenus motion to stay proceedings pending an appeal on the alleged double jeopardy

violation. The district court then scheduled a second trial for January 19, 1995. Fern appealed

the district court’s order, and that appeal is consolidated here.



                                                  7
       In Fern’s second trial, Vasquez did not testify, and the government dropped the witness

intimidation count. During the course of the second trial, Fern presented expert testimony that

the Monte Carlo could have been contaminated from the fire; witness testimony that Jerry Joyner

spiked the samples; and witness testimony that Curry Joyner, Judy Joyner’s ex-husband, signed

Judy Joyner’s signature on the Ten-Day Notices with her authorization. Fern also sought to

cross-examine witnesses about, or introduce polygraph evidence relating to, Jerry Joyner, but

was allowed to do so only to a limited extent.5

       The jury in Fern’s second trial convicted him on February 7, 1995. Fern received a

sentence of fifty-seven months of imprisonment, plus a subsequent three-year term of supervised

release and a four hundred dollar special assessment.

                                               ISSUES

       Fern raises six issues on appeal. We find each unpersuasive and address only three: (1)

whether the Double Jeopardy Clause barred Fern’s retrial after Fern requested a mistrial; (2)

whether the superseding indictment contained sufficient information to sustain the three false

statement counts against Fern; and (3) whether the district court’s failure to submit the issue of

materiality to the jury was harmless error.6

                                        CONTENTIONS




   5
         Fern first tried to cross-examine EPA agent John Lara, after Lara indicated on direct
examination that he corroborated Jerry Joyner’s testimony with a polygraph. Fern later tried to
cross-examine Jerry Joyner regarding the polygraph results. In both instances, the district court
strictly limited Fern’s examination, based, in part, on the government’s representation that Jerry
Joyner failed only a part of the polygraph.
   6
        Fern’s other appeal issues concern various evidentiary rulings and the jury instruction in
this case. We affirm on these issues pursuant to Eleventh Circuit Rule 36-1.

                                                  8
       Fern contends that the Double Jeopardy Clause barred his retrial because the

government’s conduct left him with no choice but to ask for a mistrial. Fern also contends that

the false statement counts of the indictment against him were insufficient because they failed to

include necessary allegations of willfulness and materiality, and failed to identify the particular

false material statements Fern made. Finally, Fern contends that the failure to submit the issue

of materiality to the jury was “incurably prejudicial,” i.e., not harmless error, because a

reasonable juror could have concluded that the alleged false statements were not material

because environmental officials did not rely on the statements in their decision-making process.

       The government contends that the Double Jeopardy Clause posed no barrier to Fern’s

retrial because the prosecution did not “goad” Fern into requesting a mistrial. The government

also contends that the false statement counts of the indictment contained sufficient allegations to

apprise Fern of the charges against him and to warrant an inference that the grand jury found

probable cause to support all the essential elements of the charges against Fern. Finally, the

government contends that materiality was not a jury issue in this case. Alternatively, the

government contends that the failure to submit the issue of materiality to the jury did not

constitute reversible error because no reasonable juror could have found that the alleged false

statements in this case were not material.

                                             DISCUSSION

A.     Double Jeopardy

       Ordinarily, the Double Jeopardy Clause does not bar retrial after the grant of a mistrial

upon the defendant’s motion. United States v. Torkington, 874 F.2d 1441, 1444 (11th Cir.

1989). If the prosecution’s actions compelled the defendant to move for a mistrial, however, the



                                                  9
Double Jeopardy Clause does bar retrial. 874 F.2d at 1444. As we observed in Torkington, a

defendant is compelled to move for a mistrial if the prosecution intentionally goaded the

defendant into moving for a mistrial. 874 F.2d at 1444.7 The inquiry into the prosecution’s

intent is, for the most part, a matter to be inferred from objective facts and circumstances. See

Oregon v. Kennedy, 456 U.S. 667, 679-80 (1982) (Powell, J., concurring) (“Because <subjective'

intent often may be unknowable, I emphasize that a court -- in considering a double jeopardy

motion -- should rely primarily upon the objective facts and circumstances of the particular

case.”). We review the district court’s factual findings for clear error and we conduct a de novo

review of the district court’s application of the law to the facts. Torkington, 874 F.2d at 1445.

       In this case, the district court did an exceptional job of investigating the objective facts

and circumstances leading up to the prosecution’s disclosure of Special Agent Vasquez’s

misconduct. The district court conducted an evidentiary hearing regarding the prosecutor’s

knowledge and conduct, and the knowledge and conduct of the other relevant government actor,

AUSA Mulvihill. In so doing, the district court properly recognized that government

prosecutors do not operate in a vacuum, and that under some circumstances the actions of more

than the specific prosecutor assigned to a case may be relevant to the “goading” inquiry. See

United States v. Dinitz, 424 U.S. 600, 611 (1976) (Double Jeopardy Clause “protect[s] a

defendant against governmental actions intended to provoke mistrial requests”) (emphasis

added). After questioning the relevant parties, and allowing Fern to ask additional questions, the


   7
        Webster’s Third New International Dictionary defines “goad,” in part, as follows: “to
drive, incite, or rouse.” When used as a noun, Webster’s indicates that a goad is “something that
urges or stimulates like a goad: SPUR, STIMULUS.” Webster’s Third New International
Dictionary 972 (3d ed. 1976). In the past, we have suggested that goading may be found where
the conduct of the government in bringing about the original mistrial is due to “gross negligence
or intentional misconduct.” United States v. Serra, 882 F.2d 471, 473 (11th Cir. 1989).

                                                 10
district court determined that the investigation into Vasquez’s conduct was preliminary at the

time Mulvihill heard of it; the relevant parties did not know of any actual impropriety until

December 1, 1994; and the relevant parties promptly informed the defense of Vasquez’s

impropriety. After independently reviewing the record we find no error in the district court’s

factual findings.

       We also discern no error in the district court’s legal conclusions to the effect that the

relevant events revealed no bad faith, prosecutorial misconduct or attempt to subvert the

protections of the Double Jeopardy Clause. Fern may very well have needed to move for a

mistrial in this case, but this need did not arise because of “goading” on the government’s part.

B.     Sufficiency of the Indictment

       “A criminal conviction will not be upheld if the indictment upon which it is based does

not set forth the essential elements of the offense.” United States v. Gayle, 967 F.2d 483, 485

(11th Cir. 1992) (en banc), cert. denied, 507 U.S. 967 (1993). This rule serves two functions.

First, it puts the defendant on notice of “the nature and cause of the accusation as required by the

Sixth Amendment of the Constitution. Second, it fulfills the Fifth Amendment’s indictment

requirement, ensuring that a grand jury only return an indictment when it finds probable cause to

support all the necessary elements of the crime.” Gayle, 967 F.2d at 485. The law does not,

however, require that an indictment track the statutory language. United States v. Stefan, 784

F.2d 1093, 1101 (11th Cir.), cert. denied, 479 U.S. 855, and cert. denied, 479 U.S. 1009 (1986).

If an indictment specifically refers to the statute on which the charge was based, the reference to

the statutory language adequately informs the defendant of the charge. Stefan, 784 F.2d at 1101-

02. Similarly, if the facts alleged in the indictment warrant an inference that the jury found



                                                11
probable cause to support all the necessary elements of the charge, the indictment is not fatally

deficient on Fifth Amendment grounds. Cf. United States v. McGough, 510 F.2d 598, 602 (5th

Cir. 1975) (if facts alleged warrant inference that false statements are material, an indictment is

sufficient).8

        Counts I-III of the superseding indictment charged that Fern, on three separate dates, “did

knowingly make false statements on the Notification of Demolition and Renovation form filed,

and required to be maintained, pursuant to the Clean Air Act . . . in violation of Title 42, United

States Code, Section 7413(c)(2).”9 Fern contends that these counts of the indictment are


   8
       In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
  9
        Title 42 U.S.C. § 7413(c)(2) provides that:

        Any person who knowingly -

                (A)    makes any false material statement, representation,
                       or certification in, or omits material information
                       from, or knowingly alters, conceals, or fails to file
                       or maintain any notice, application, record, report,
                       plan, or other document required pursuant to this
                       chapter to be either filed or maintained (whether
                       with respect to the requirements imposed by the
                       Administrator or by a State);

                (B)    fails to notify or report as required under this
                       chapter; or

                (C)    falsifies, tampers with, renders inaccurate, or fails
                       to install any monitoring device or method required
                       to be maintained or followed under this chapter

        shall, upon conviction, be punished by a fine pursuant to Title 18, or by
        imprisonment for not more than 2 years, or both. If a conviction of any person
        under this paragraph is for a violation committed after a first conviction of such
        person under this paragraph, the

                                                 12
insufficient because they (1) fail to state expressly that “willfulness” and “materiality” are

elements of a Clean Air Act false statement offense, and (2) fail to identify adequately the

particular false statements Fern made.

        Fern’s contention regarding the failure to allege “willfulness” is meritless because

“willfulness” is not an essential element of an offense under the relevant provision of section

7413(c)(2). Section 7413(c)(2)(A) makes it a crime for any person to “knowingly” make a false

material statement in a document required to be filed or maintained. 42 U.S.C. § 7413(c)(2)(A).

The plain language of the statute does not require a showing of willfulness, and we decline

Fern’s invitation to read willfulness into the statute via the language of section 7413(h) of the

Clean Air Act.10

        Fern’s contention regarding the indictment’s failure to allege “materiality” is more

substantial, but still unpersuasive. Fern contends correctly that the indictment does not mention

the word “material,” and that a false statement must be a “material” statement to constitute a

violation under the Clean Air Act. See 42 U.S.C. § 7413(c)(2)(A) (violation requires a “false

material statement, representation, or certification”). The indictment does, however, specifically

reference “Title 42, United States Code, Section 7413(c)(2).” Fern contends that this reference




        maximum punishment shall be doubled with respect to both the fine and
        imprisonment.

42 U.S.C. § 7413(c)(2).
   10
        Section 7413(h) provides in part that certain lower-level employees will not be held
liable for some Clean Air Act violations unless their actions are “knowing and willful.” 42
U.S.C. § 7413(h). Even if section 7413(h) applied in this case -- and we do not hold that it does
-- Fern would not be covered under it because, at the relevant time, he was the president of AER,
not a lower-level employee.

                                                 13
is insufficiently specific to put him on notice that he allegedly violated section 7413(c)(2)(A).

We find the omission of a reference to subsection (A) harmless.

        The indictment charged Fern with making a “false statement.” The only provision within

section 7413(c)(2) that could even potentially concern false statements” is subsection (A) which

begins with the following words: “makes any false material statement.” 42 U.S.C. §

7413(c)(2)(A) (emphasis added). Subsection (B) of section 7413(c)(2) refers to failures to notify

or report under the Clean Air Act, and subsection (C) refers to prohibited acts with “any

monitoring device or method.” 42 U.S.C. § 7413(c)(2)(B), (C). Because Fern could not read

section 7413(c)(2) and conclude that he was charged with a violation of anything but section

7413(c)(2)(A), we reject his claim that the indictment failed to notify him of the charges that he

had to defend. See Stefan, 784 F.2d at 1102 (“practical, rather than technical considerations

govern the validity of the indictment”).11

        We also find unpersuasive Fern’s related contention that the indictment fails to identify

the false statements with sufficient particularity for Fifth Amendment purposes. In our view,

Fern’s contention is based on a false premise -- that “the indictment merely referenced three

Ten-Day Notices, without identifying what statements in the notices were false.”

        Paragraph Four of the indictment specifically alleges that AER performed the asbestos

abatement work at the Monte Carlo. Paragraph Seven of the indictment indicates that an owner

or operator must notify the EPA or the appropriate local agency before conducting certain types

of asbestos abatement in a building. Paragraph Nine of the indictment alleges that Fern was the



   11
       We also note that the government specifically apprised Fern of the specific false
statements during a hearing prior to his first trial. Fern subsequently failed to renew his motion
to dismiss -- or to request a bill of particulars -- prior to his retrial.

                                                14
“operator” of an asbestos abatement project taking place at the Monte Carlo. The three Ten-Day

Notices referenced in the indictment all indicate that Action Systems -- not AER -- performed

the asbestos abatement project at the Monte Carlo under the on-site supervision of

“Owner/Operator” Judy Joyner -- not under the supervision of “operator” Fern.

        It is an entirely sensible inference that the false statements referred to in the indictment

related to the specific allegations described earlier in the indictment, e.g., whether “operator”

Fern notified the appropriate agency of AER’s asbestos abatement project at the Monte Carlo.12

Since the indictment also referenced the relevant statutory section, it is also a reasonable

inference that the grand jury found that any false statements regarding the identity of the entity

performing the Monte Carlo asbestos abatement project were “material.” Accordingly, we are

satisfied that Counts I-III of the superseding indictment comport with the Fifth Amendment’s

dictates.

C.      Gaudin Error

        In United States v. Gaudin, 115 S. Ct. 2310 (1995), the Supreme Court held that the

materiality of a false statement for the purposes of a conviction under 18 U.S.C. § 1001 is a jury

question and that a district court’s failure to submit the question of materiality to the jury

constitutes reversible error. The Court’s holding in Gaudin applies retroactively to cases on

direct appeal at the time Gaudin was decided. See Griffith v. Kentucky, 479 U.S. 314, 328



        12
              Any contrary inferences would require us to assume that the grand jury
included the above-described references in paragraphs four, seven and nine of the
indictment, as mere window dressing. We decline to view these references in such a
fashion. We also note the tension between Fern’s suggestion that the absence of some
explicit language in the indictment is fatal, while the presence of other explicit language
is of no moment.

                                                  15
(1987). When no assertion of error is made during the trial, and error arises only because of a

later Supreme Court decision, we review for plain error. United States v. Calhoon, 97 F.3d 518,

529 (11th Cir. 1996), cert. denied, 118 S. Ct. 44 (1997). Under plain error review, reversal for

unobjected-to error is permitted where the error is both (1) plain and (2) affects substantial

rights. Calhoon, 97 F.3d at 529-30; United States v. Olano, 507 U.S. 725, 732 (1993). We have

held that an improper instruction does not affect substantial rights when no reasonable argument

exists that the statements at issue were not material. Calhoon, 97 F.3d at 530. Our cases also

indicate that the burden of showing that an unobjected-to Gaudin error constitutes plain error

rests with the defendant. United States v. Kramer, 73 F.3d 1067, 1074 n.17 (11th Cir.), cert.

denied, 117 S. Ct. 516 (1996).

       When a proper objection to a Gaudin error is lodged at trial the analysis differs, but, in

our estimation, only with respect to the burden of persuasion. This is so because a Gaudin error

does not fall within that limited class of errors known as “structural” errors, e.g., errors

“‘affecting the framework within which the trial proceeds, rather than simply an error in the trial

process itself.’” Johnson v. United States, 117 S. Ct. 1544, 1549 (1997) (citing Arizona v.

Fulminante, 499 U.S. 279, 310 (1991)). To the contrary, a Gaudin error is more correctly

viewed as analogous to improperly instructing the jury on an element of the offense, an error that

is subject to harmless error analysis. See

United States v. Raether, 82 F.3d 192, 194 (8th Cir. 1996) (“Gaudin errors are trial errors subject

to harmless error review”); cf. Johnson, 117 S. Ct. at 1550 (stating that “[i]t is by no means

clear” that a Gaudin error fits within the limited class of cases subject to structural error




                                                  16
analysis).13 The appropriate review under the harmless error review standard mirrors the plain

error review standard regarding prejudice to substantial rights, except that the burden of

persuasion shifts: the government must show the absence of prejudice to the defendant’s

substantial rights. Cf. Olano, 507 U.S. at 734-35 (plain error analysis into prejudice is the same

kind of inquiry as employed in harmless error analysis, with one important difference: “it is the

defendant rather than the Government who bears the burden of persuasion with respect to

prejudice”).

        In this case, the government contends that the holding of Gaudin does not extend to false

statements under section 7413(c)(2). As a result, the government contends, the district court did

not err when it failed, over Fern’s objection, to submit the issue of materiality to the jury. We

decline to reach this issue because we conclude that even if Gaudin does apply, the government

has carried its burden of showing the absence of prejudice to Fern arising from the claimed

Gaudin error.

        Here, the government’s burden, more precisely stated, is to show that the guilty verdict

rendered against Fern was “surely unattributable” to the incorrect jury instruction regarding the

false statements on the Ten-Day Notices. See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)

(inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely

have been rendered, but whether the guilty verdict actually rendered in this trial was surely

unattributable to the error”); Raether, 82 F.3d at 194 (same). At trial, the district court instructed

the jury as follows:



   13
       In his reply brief, Fern effectively conceded that harmless error analysis applies in this
case when he indicated that “[t]he court’s erroneous jury instruction is not . . . harmless on this
record.”

                                                 17
       Title 42, United States Code, section 7413(c)(2)(A) makes it a federal crime to
       knowingly make any false material statement, representation or certification in
       any notice, report or other document required to be filed or maintained pursuant
       to the Clean Air Act. The defendant can be found guilty of that offense only if all
       of the following facts are proved beyond a reasonable doubt:

              First: The defendant was the owner or operator of the facility being
       renovated.

               Second: That the combined amount of regulated asbestos-containing
       material stripped, removed, dislodged, cut, drilled or similarly disturbed was at
       least 260 linear feet on pipes or 160 square feet on other facility components.

              Third: That the notifications of demolition and renovation were filed as
       required under the Clean Air Act.

               Fourth: That the defendant knowingly made a false material statement in
       the notification.

               Fifth: That the defendant knew the statement was false at the time the
       notification was submitted.

              The 10-day notices of renovation and demolition in this case are
       documents which are required to be filed and maintained pursuant to the Clean
       Air Act.

               You are further instructed that the Court has already determined that the
       statements in this case were material. And I find that the statement that Action
       Systems was the contractor who was to remove the asbestos is a material
       statement, and that the signature of Judy Joyner was a material representation.
       That is a fact question for you to determine. You determine on the evidence
       whether it was authorized, as argued by the defendant, or was not authorized, as
       argued by the government.

       The district court later clarified the last portion of the instruction, stating that “[t]he

Government must prove beyond a reasonable doubt, in order to find the defendant guilty of those

three counts concerning that statement, that that statement was false, that [the signature of] Judy

Joyner was not authorized.” In addition, the district court instructed the jury that “[t]he word




                                                  18
‘knowingly,’ as that term has been used . . . in the instructions, means that the act was done

voluntarily and intentionally and not because of mistake or accident.”

       Given the facts of this case, we can say beyond any reasonable doubt that the district

court’s alleged error did not contribute to the guilty verdict in this case. We know this for

several reasons. First, the trial testimony regarding the statements at issue uncontrovertedly

established that they met the Dennis test. DERM officials Wong and Gordon testified that they

“absolutely” relied on the information contained in Ten-Day Notices and that the “only” way

DERM officials can know if the individual removing asbestos is properly trained is if they have

the appropriate license. On cross-examination, Curry Joyner, a witness that Fern called, engaged

in the following exchange:

       Prosecutor:     Now, it’s important on the ten-day notices that there be a
                       signature at the bottom, you testified?

       Joyner:         Yeah, you should always sign them.

       Prosecutor:     In fact, you said that was important, even if Donald Duck’s
                       name was on it?

       Joyner:         Right, as long as you make the notification and it gets to
                       D.E.R.M. that in ten days from now there will be a job
                       starting.

       Prosecutor:     Mr. Joyner, why didn’t you sign your name? Why didn’t
                       you sign Curry Joyner?

       Joyner:         Because it’s her license. I just signed her name.

       Prosecutor:     If Donald Duck could sign, couldn’t Curry Joyner?

       Joyner:         Well, I mean, okay -- well, if Donald Duck could write
                       Judy Joyner, he could write Judy Joyner.




                                                19
Curry Joyner went on to testify that “we couldn’t have done the [Monte Carlo] job without her

[Judy Joyner] license.” Both prosecution and defense witnesses thus firmly established the

materiality of the name signed on the signature line of Ten-Day Notices, demonstrating beyond

doubt that materiality was not a genuine factually disputed issue in this case.

        Second, we believe the jury necessarily credited the foregoing testimony establishing the

materiality of the false statements when it rejected Fern’s two-pronged defense theory. That

defense theory was that Judy Joyner’s forged signature was authorized, and that no evidence

showed beyond a reasonable doubt that “Dan Fern submitted the form; that Dan Fern knowingly

made any false statements on that form . . . [; and] that the form was submitted for any improper

purpose.” When the jury found that the signature was not authorized and was knowingly forged

-- forged “voluntarily and intentionally and not because of mistake or accident,” i.e., forged for

an improper reason -- it necessarily found that the signature was forged because Fern believed

Judy Joyner’s signature might positively influence DERM officials in the exercise of their

regulatory oversight duties. If the jury had not so concluded it would have characterized the

false signature as a “mistake or accident” and acquitted Fern.

        The jury’s finding that Fern acted “knowingly” in this case is, in our view, so closely

related to the materiality issue that it is functionally equivalent to a materiality finding.

Accordingly, the district court’s failure to properly describe the elements of a false statement

offense under section 7413(c)(2)(A), if error, was harmless in this particular case. See Sullivan,

508 U.S. at 280-281 (error may be harmless where jury findings regarding certain facts “are so




                                                  20
closely related to the ultimate fact to be presumed that no rational jury could find those facts

without also finding that ultimate fact”) (internal citation omitted).14




   14
        Because the jury effectively found the false statements material in this case, we find
Fern’s reliance on our holding in United States v. Medina, 90 F.3d 459 (11th Cir. 1996),
unavailing. In Medina, we held that a trial judge cannot direct a verdict in favor of the
government regarding all or even one element of a crime. 90 F.3d at 464. That holding is
correct because a criminal conviction must rest upon a jury determination that a defendant is
guilty beyond a reasonable doubt. Medina is inapposite in this case because the jury did find
Fern guilty of the false statement offenses, and its finding that Fern acted “knowingly”
incorporated the element of materiality.

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                                CONCLUSION

For the foregoing reasons, we affirm Daniel Fern’s convictions.

                                 AFFIRMED.




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