UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5639

AARON R. DAVIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-95-144-A)

Argued: December 6, 1996

Decided: February 24, 1997

Before WIDENER, MURNAGHAN, and NIEMEYER,
Circuit Judges.

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Reversed and remanded for a new trial by unpublished per curiam
opinion. Judge Niemeyer wrote a dissenting opinion.

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COUNSEL

ARGUED: Frank Salvato, Alexandria, Virginia, for Appellant. Kath-
erine Mary Kelly, OFFICE OF THE UNITED STATES ATTOR-
NEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, Elisabeth Sachs, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Aaron Davis was convicted of making false statements to a grand
jury. Davis, an inmate of the Lorton Reformatory Correctional Com-
plex, resided in the cell block occupied by Michael Martin, another
Lorton inmate, who was killed in the cell block. As a result, the testi-
mony of Davis was sought by the grand jury investigating the death
and probable murder of Martin. Brought before the grand jury, Davis
first declined to answer questions, asserting the Fifth Amendment to
the Constitution. However, having stated that he knew he was not
involved in Martin's death, he was told that he had no basis for asser-
tion of the Fifth Amendment on the grounds of self-incrimination.
Davis also requested an attorney, but after being informed that a law-
yer is not allowed to be present inside the grand jury room, Davis tes-
tified before the grand jury that he did not see James Cowan fighting
or arguing with Martin.

When Cowan was tried for the murder of Martin, Davis testified
that he saw Cowan and Martin fighting on the night of Martin's death.
Following Cowan's trial (and conviction) of first degree murder, an
indictment was returned charging Davis under 18 U.S.C. § 1623 with
false declarations either before the grand jury or at Cowan's trial. At
Davis' trial, the government presented proof that the grand jury testi-
mony was not true. The district court instructed the jury that whether
Davis' statements before the grand jury were material was a question
to be decided by the court, not the jury. The district court ruled that
Davis' statements to the grand jury were material. As a result, Davis
was convicted and sentenced to 60 months in prison, two years of
supervised release and a $50 special assessment.

I.

On appeal, Davis principally relied on United States v. Gaudin, ___
U.S. ___, 115 S.Ct. 2310 (1995), which made materiality a factual

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question to be decided by the jury, not the court. The Supreme Court
held that:

          The Constitution gives a criminal defendant the right to
          have a jury determine, beyond a reasonable doubt, his guilt
          of every element of the crime with which he is charged. The
          trial judge's refusal to allow the jury to pass on the "materi-
          ality" of Gaudin's false statements infringed that right.

Gaudin, 115 S.Ct. at 2320. Prior to the Gaudin decision, in the Fourth
Circuit the determination of materiality was treated as a question of
law to be resolved by the court. See United States v. Bailey, 769 F.2d
203 (4th Cir. 1985). Post-Gaudin, the Fourth Circuit in United States
v. David, 83 F.3d 638 (4th Cir. 1996), reversed a conviction and
required a new trial in a false statement case like the one involving
Davis, where the question of materiality was removed from the jury.

Since Davis failed to object to the district court's jury instruction
of the materiality question, our standard of review is for plain error.
United States v. Olano, 507 U.S. 725 (1993); United States v.
Floresca, 38 F.3d 706 (4th Cir. 1994). We have no difficulty conclud-
ing that the failure to submit the materiality determination to the jury
1) was error, 2) was plain, and 3) affected substantial rights. Olano,
507 U.S. at 732-34. The fact that Davis was prosecuted under 18
U.S.C. § 1623 while both Gaudin and David concerned 18 U.S.C.
§ 1001 prosecutions does not affect the court's analysis since all three
cases involved materiality as an element of the offense. Nor is plain
error avoided as in United States v. Cedelle, 89 F.3d 181 (4th Cir.
1996), where serious error occurred but substantial rights were not
affected. Therefore, we are satisfied that Davis is entitled to a reversal
of his conviction and a remand for a new trial.

II.

Davis, however, also seeks for us to order entry of a judgment of
acquittal. He claims that the testimony to the grand jury was not mate-
rial and also relies on further Fifth and Sixth Amendment rights. In
United States v. Flowers, 813 F.2d 1320 (4th Cir. 1987), the Fourth
Circuit held that in order to sustain a conviction under 18 U.S.C.
§ 1623, the government must show that each of the inconsistent decla-

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rations was "material to the point in question at the proceeding in
which it was uttered." Id. at 1324. Thus, the government must show
that the statement had "a natural tendency to influence, or is capable
of influencing, the decision of the fact finder." Id., at 1324-25. The
standard of review requires the court to view the evidence in a light
most favorable to the government. Id. Viewing the evidence in a light
most favorable to the government, the appearance of Davis on the
scene when Martin was killed and his acquaintance with Cowan could
readily lead the jury to conclude that a statement that there was or was
not a Cowan/Martin fight was capable of influencing the grand jury.

As for the Fifth Amendment claim, Davis' hesitance to answer
questions in the face of his admitting that he did not fear self-
incrimination, was insufficient as a basis for asserting the privilege.
Davis' Sixth Amendment contention also fails. The right to counsel
for Sixth Amendment purposes does not attach at the grand jury stage
because criminal proceedings have not been initiated. United States
v. Williams, 504 U.S. 36, 49 (1992); United States v. Mandujano, 425
U.S. 564, 581 (1976).

Accordingly, the judgment is reversed and remanded for a new
trial.

REVERSED AND REMANDED FOR A NEW TRIAL

NIEMEYER, Circuit Judge, dissenting:

Testifying before a grand jury investigating the death of Michael
Martin, an inmate at Lorton Reformatory Correctional Complex, fel-
low inmate Aaron Davis stated that he did not see James Cowan, also
an inmate, argue or fight with Martin. At Cowan's trial for Martin's
murder, however, Davis testified that in fact he did see Cowan and
Martin fighting on the night of Martin's death. Based on Davis' con-
flicting statements, the government indicted Davis for perjury in vio-
lation of 18 U.S.C. § 1623.

At Davis' trial, the district court did not, consistent with circuit pre-
cedent at the time, submit to the jury the question of whether Davis'
false testimony was material. After that trial, however, the Supreme

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Court handed down its decision in United States v. Gaudin, 115 S. Ct.
2310 (1995), requiring that the question of materiality be submitted
to the jury and not be decided by the court. Because of that change
in law, the majority has now ordered a new trial, concluding that the
forfeited error was plain error that affected substantial rights. See
United States v. Olano, 507 U.S. 725 (1993).

In ordering a new trial, however, the majority has failed to deter-
mine whether we should exercise our discretion not to notice the error
under standards established by both Olano and our decision in United
States v. Cedelle, 89 F.3d 181 (4th Cir. 1996). Dismissing the control-
ling effect of Cedelle, the majority has stated simply, "Nor is plain
error avoided as in [Cedelle], where serious error occurred but sub-
stantial rights were not affected." This conclusion is, I submit, a mis-
reading of Cedelle.

In Cedelle, the district judge failed to instruct the jury that the gov-
ernment had the burden of proving that Cedelle knew that one of the
persons depicted in sexually explicit material was a minor. In failing
to instruct the jury on an element of the crime, we concluded, contrary
to what the majority has reported in this case, that"the error affected
Cedelle's substantial rights." Id. at 185. In Cedelle, however, we
pointed out that even when we find plain error that affects substantial
rights, we must still exercise discretion whether to notice the error. Id.
And we notice error:

          only if in the context of the proceedings taken as a whole,
          the error either led to the conviction of a defendant who is
          actually innocent or otherwise seriously affect[ed] the fair-
          ness, integrity or public reputation of judicial proceedings.

Id. at 185 (citations and internal quotes omitted). Deciding not to
notice the error in Cedelle, we focused on the nature of the evidence
as follows:

          Consequently, even if the proper instruction had been given,
          Cedelle's conviction was inevitable. Under these circum-
          stances, to expend the judicial resources necessary for a
          retrial would be more detrimental to the fairness, integrity,

                     5
          and public reputation of judicial proceedings than permitting
          Cedelle's conviction to stand.

Id. at 186. I believe that that conclusion also applies to the case before
us.

There is no question that Davis' testimony about whether he wit-
nessed a murder was material to an investigation into that murder.
Before the grand jury, Davis testified that he did not see the fight on
the evening of the murder. At trial, Davis, motivated by a desire to
support Cowan's self-defense theory, testified that he did see the
fight. There can be no question that the false testimony was material.
To order a retrial in these circumstances would, in my judgment, be
a hollow ritual, more detrimental to the fairness, integrity, and public
reputation of these judicial proceedings than affirming the conviction.
Accordingly, I would affirm.

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