PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 94-5754

KARL V. DAVID,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-94-39)

Argued: November 3, 1995

Decided: May 6, 1996

Before ERVIN, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Ervin and Judge Wilkins joined. Judge Ervin
wrote a specially concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Lee W. Kilduff, MORCHOWER, LUXTON & WHA-
LEY, Richmond, Virginia, for Appellant. N. George Metcalf, Assis-
tant United States Attorney, Richmond, Virginia, for Appellee. ON
BRIEF: Michael Morchower, MORCHOWER, LUXTON & WHA-
LEY, Richmond, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, Kieran Grennan, Third Year Law Student Intern,
Richmond, Virginia, for Appellee.
OPINION

LUTTIG, Circuit Judge:

Appellant, Karl David, was convicted by a jury of making a false
statement on a form submitted to the Bureau of Alcohol, Tobacco and
Firearms, in violation of 18 U.S.C. § 1001. David now claims that
under the Supreme Court's subsequent decision in United States v.
Gaudin, 115 S. Ct. 2310 (1995), his conviction must be overturned
because the district court failed to submit the question of materiality
to the jury despite his Fifth and Sixth Amendment rights to have a
jury determine every element of the crime with which he was
charged. Since David never objected to the district court's jury
instructions, we review his conviction for plain error under Federal
Rule of Criminal Procedure 52(b). We agree that in light of Gaudin,
which is to be applied retroactively to all cases on direct review, see
Griffith v. Kentucky, 479 U.S. 314, 328 (1987), the failure to instruct
this particular jury on the element of materiality constitutes plain
error. Therefore, we vacate David's conviction and remand for a new
trial.

I.

David had been a federally licensed firearms dealer for approxi-
mately six years before the incident at issue in this case. In March of
1994, the month before his federal firearms license was to expire,
David obtained an application to renew his license. The application
included a number of questions, one of which was the following:

          1. Are you presently under indictment or information in
          any court for a crime punishable by imprisonment for a term
          exceeding 1 year?

          (If yes, attach an explanatory statement showing the date of
          the indictment or information and the court in which it is
          pending. "INFORMATION" means a formal accusation of
          a crime made by a prosecuting attorney as distinguished
          from an indictment presented to a grand jury.).

                    2
David answered this question "NO." At the time, David was under
indictment for embezzlement in Caroline County, Virginia. The
indictment explained the possible punishments for embezzlement as
follows:

          PUNISHMENT: Imprisonment for not less than one nor
          more than twenty years, or in the discretion of the jury or
          the Court trying the case without a jury by confinement in
          jail for a period not exceeding twelve months and a fine of
          not more than $2,500.00; either or both.

As a result of David's answer, the government charged David with
knowingly making a false statement to a department or agency of the
United States in violation of 18 U.S.C. § 1001.1 To establish a viola-
tion of section 1001, the prosecution must prove that: (1) the defen-
dant made a false statement to a governmental agency; (2) the
defendant acted knowingly or willfully; and (3) the false statement
was material to a matter within the jurisdiction of an agency.2 See,
e.g., United States v. Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir.
1993). Pursuant to longstanding Fourth Circuit precedent, the district
court did not submit the question of materiality to the jury, but, rather,
instructed that "[t]he court will decide . . . element four, regarding
materiality." See Appellant's Mot. to Supplement Arg. at 7.

The district court's instruction, though faithful to then-existing law,
turned out to be in error when, in Gaudin, a unanimous Supreme
Court held that the Fifth and Sixth Amendments require that the ele-
_________________________________________________________________
1 18 U.S.C. § 1001 provides in relevant part:

           Whoever, in any matter within the jurisdiction of any department
           or agency of the United States knowingly and willfully . . .
           makes any false, fictitious or fraudulent statements or representa-
           tions . . . shall be fined under this title or imprisoned not more
           than five years, or both.
2 "The test of materiality is whether the false statement has a natural
tendency to influence agency action or is capable of influencing agency
action." United States v. Norris , 749 F.2d 1116, 1122 (4th Cir. 1984),
cert. denied, 471 U.S. 1065 (1985); see also Kungys v. United States,
485 U.S. 759, 770 (1988); Gaudin, 115 S. Ct. at 2313.

                     3
ment of materiality in section 1001 must be submitted to the jury.3
115 S. Ct. at 2320 ("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."). On the
authority of Gaudin, David now contends that he is entitled to a new
trial in which the question of materiality would be submitted to the
jury. Because he raised no objection to the court's instruction that it
would decide materiality, we review the failure to submit the question
of materiality to the jury for plain error under Federal Rule of Crimi-
nal Procedure 52(b).

II.

Appellate authority to review errors not brought to the attention of
the district court and thus not otherwise cognizable on appeal4 is
found in Federal Rule of Criminal Procedure 52(b), which provides:

          Plain errors or defects affecting substantial rights may be
          noticed although they were not brought to the attention of
          the court.

The Supreme Court recently clarified the scope and requirements of
Rule 52(b) in United States v. Olano, 113 S. Ct. 1770 (1993). Noting
that "the authority created by Rule 52(b) is circumscribed," the Court
held that, before an appellate court can correct an error not raised at
_________________________________________________________________
3 In his concurrence in Gaudin , the Chief Justice emphasized that the
Court did not purport to resolve the conflict over whether materiality is
necessarily an element of 18 U.S.C. § 1001, but rather "merely
assume[d] that materiality is, in fact, an element of the false statement
clause of § 1001." Gaudin, 115 S. Ct. at 2320-21 (Rehnquist, C.J., con-
curring); see Gaudin, 115 S. Ct. at 2313 ("It is uncontested that convic-
tion under this provision requires that the statements be `material' . . . .").
Neither party in the case before us questions this circuit's precedent that
materiality is an element of section 1001. Arch Trading Co., 987 F.2d at
1095.
4 Federal Rule of Criminal Procedure 30 provides, in relevant part, that
"[n]o party may assign as error any portion of the charge or omission
therefrom unless that party objects thereto before the jury retires to con-
sider its verdict."

                    4
trial, Rule 52(b) requires: 1) "error"; 2) that is "plain"; and 3) that "af-
fect[s] substantial rights." Id. at 1776. Even then, "Rule 52(b) leaves
the decision to correct the forfeited error within the sound discretion
of the Court of Appeals, and the court should not exercise that discre-
tion unless the error `"seriously affect[s] the fairness, integrity or pub-
lic reputation of judicial proceedings."'" Id. (quoting United States v.
Young, 470 U.S. 1, 15 (1985) (quoting United States v. Atkinson, 297
U.S. 157, 160 (1936))). The Court also explained that Rule 52(b),
which "defines a single category of forfeited-but-reversible error," is
the sole source of appellate authority to correct a forfeited error,5
unless some other provision authorizes its correction. Id. at 1776-77.

A.

Turning to the first element in the "plain error" analysis, we have
no hesitation concluding that the district court committed an error in
this case. Although the district court's instruction that materiality
would be decided by the court was proper at the time it was given,
we now know that the element of materiality in section 1001 must be
submitted to the jury. See Gaudin, 115 S. Ct. at 2320. Since a "new
rule for the conduct of criminal prosecutions is to be applied retroac-
tively to all cases . . . pending on direct review .. . , with no exception
for cases in which the new rule constitutes a `clear break' with the
past," Griffith 479 U.S. at 328, David is entitled to the benefit of the
new rule for the purposes of determining whether the district court
committed an error. Thus, the district court erred in failing to submit
the question of materiality to the jury.
_________________________________________________________________

5 Forfeiture is the "failure to make the timely assertion of a right."
Olano, 113 S. Ct. at 1777. Waiver, on the other hand, is the "`intentional
relinquishment or abandonment of a known right.'" Id. (quoting Johnson
v. Zerbst, 304 U.S. 458, 464 (1938)). The important distinction between
forfeiture and waiver is that if a defendant waives a right (which is waiv-
able), he cannot later raise an objection on the grounds that the failure
to provide him with the waived right is error. See id. That is, waiver,
unlike forfeiture, may "extinguish" an "error" under Rule 52(b). See id.

                     5
B.

The question of whether the error committed by the district court
is "plain" is not as easily resolved. In Olano, the Supreme Court
defined "plain" as "synonymous with `clear' or, equivalently, `obvi-
ous.'" 113 S. Ct. at 1777. Although the Court defined the word
"plain" perhaps as clearly as that word can be defined in the context
of the plain error analysis, it was somewhat elliptical on the important
question of when the error must be plain in order for an appellate
court to take cognizance of the error, stating only that,

          [t]he second limitation on appellate authority under Rule
          52(b) is that the error be "plain." "Plain" is synonymous
          with "clear" or, equivalently, "obvious." See [United States
          v.] Young, [470 U.S. 1,] 17 n.14[(1985)]; United States v.
          Frady, 456 U.S. 152, 163 (1982). We need not consider the
          special case where the error was unclear at the time of trial
          but becomes clear on appeal because the applicable law has
          been clarified. At a minimum, the Court of Appeals cannot
          correct an error pursuant to Rule 52(b) unless the error is
          clear under current law.

Id. (emphasis added); see also United States v. Marder, 48 F.3d 564,
573 (1st Cir.) (noting circuit split over when an error must be plain,
in the course of declining to answer the "considerably more compli-
cated" question of when an error is "plain"), cert. denied, 115 S. Ct.
1441 (1995). Because this passage from Olano is so central to an
understanding of the "plain" requirement of the plain error analysis,
and its meaning has proven so elusive, we begin by addressing our-
selves to this passage and to the deceptively complex issues it raises.

1.

We can conceive of at least four different circumstances envisaged
by the Court in this passage: A) where an error is clear both at the
time of trial and at the time of appeal; B) where an error is "unclear
at the time of trial but becomes clear on appeal"; C) where an error
is clear at the time of trial but unclear at the time of appeal; or D)
where an error is unclear both at the time of the trial and at the time
of appeal. It seems to us that the passage is best understood as autho-

                    6
rizing appellate review of forfeited errors in Circumstance A, barring
review of such errors in Circumstances C and D, and as reserving
judgment on whether forfeited errors arising under Circumstance B
are reviewable, but suggesting that they too might well not be review-
able.

Although the Court does not so state expressly, the clear implica-
tion from sentences three and four of the passage, as would be
expected, is that a court of appeals is authorized to invoke its powers
under Rule 52(b) to review an error when the error was plain at trial
and is also plain on appeal (Circumstance A). We believe that Cir-
cumstance A must be the "ordinary case" to which the Court implic-
itly makes reference through its identification of the "special case."
Equally clearly, the final sentence of the paragraph categorically fore-
closes appellate review whenever the error is unclear at the time of
appeal (Circumstances C and D), regardless of whether the error was
clear at the time of trial. And, of course, the Court expressly declined
to decide whether the so-called "special case," where an error that
"was unclear at the time of trial . . . becomes clear on appeal because
the applicable law has been clarified" (Circumstance B), would be
reviewable.

The contours of Circumstances A, C, and D, are evident, and that
there would be review in the first, but not in the latter two, of these
circumstances seems obvious as well. We confess that we are less
than certain from the Court's description what it understood to be the
special case (Circumstance B). It seems to us, however, that, at least
as literally described, the special case would include only the circum-
stance where an error was unclear at the time of trial because of con-
flicting or ambiguous caselaw. In saying this, we recognize that the
Court's description of the special case could arguably be understood
as including the circumstance where, at the time of trial, it was quite
clear that the district court's action was not at all error, but, as a con-
sequence of a reversal of that law, it is clear on appeal that the action
was in fact error. A number of our sister circuits have even summarily
concluded that this circumstance is the special case contemplated by
the Court. See, e.g., United States v. Ross, No. 92-1449, 1996 WL
41564, at *8 (7th Cir. Feb. 2, 1996); United States v. Keys, 67 F.3d
801, 809 (9th Cir. 1995); United States v. Viola, 35 F.3d 37, 41 (2d
Cir. 1994), cert. denied, 115 S. Ct. 1270 (1995); United States v.

                     7
Retos, 25 F.3d 1220, 1230 (3d Cir. 1994). We believe, however, that
it is simply too strained to describe this circumstance as one where
the error was unclear at the time of trial and the law has subsequently
been clarified -- at least in any sense in which we generally use those
terms. We suppose that it might be said, drawing upon either the tra-
ditional common law notion that the law exists and is only to be dis-
covered by the courts or the legal realist view that the law is never
clear, that the error was "unclear"; but we can think of no sense in
which it could reasonably be said that the outright reversal of well-
established law constitutes a "clarification" of the law.

Thus, as we understand the special case, it is precisely the circum-
stance where it is most obvious that review should not be authorized:
If the contemporaneous objection requirement is to have any real
force, presumably an objection would be required (and review would
be barred for failure to object) in the circumstance where the law at
the time of trial is unclear as to whether the district court's proposed
course would constitute error.6 A timely objection in such a circum-
stance would provide the court an opportunity to consider the ques-
tion, possibly avoid the commission of an error, and thereby prevent
the need for retrial upon appellate reversal -- the very purposes of the
contemporaneous objection rule. Moreover, declining to review for-
feited errors under the circumstance of the special case also would
serve as a disincentive to defendants who would forego an objection
_________________________________________________________________
6 We have been and remain somewhat puzzled as to why the Court did
not categorically foreclose review in the special case, if the Court under-
stood that case as we do. It may be that the Court was simply unsure of
the implications of its decision in Griffith. In our view, however,
Griffith's holding that a defendant whose direct appeal is pending
receives the benefit of a new rule for purposes of determining whether
the district court erred, bears not at all on the second requirement of
Olano, that the error be "plain." Regardless, we believe that a defendant
who objects to an alleged error (as did the defendant in Griffith) is not
"similarly situated," Griffith, 479 U.S. at 327, to a defendant who did not,
and so a new rule created for the former need not be deemed plain for
the latter. Cf. Olano, 113 S. Ct. at 1776 ("`No procedural principle is
more familiar to this Court than that a constitutional right . . . may be for-
feited in criminal [cases] by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.'" (quoting
Yakus v. United States, 321 U.S. 414, 444 (1944))).

                    8
at trial for tactical reasons, knowing that they intended to claim on
appeal that the district court's action to which they did not object con-
stitutes reversible error. See Wainwright v. Sykes, 433 U.S. 72, 89
(1977). In short, to allow review under the circumstance of the special
case would disturb Rule 52(b)'s "`careful balanc[e] of [the] need to
encourage all trial participants to seek a fair and accurate trial the first
time around [and] our insistence that obvious injustice be promptly
redressed,'" United States v. Young , 470 U.S. 1, 15 (1985) (quoting
Frady, 456 U.S. at 163), and would effectively afford the "extrava-
gant protection" that the Court has instructed Rule 52(b) was never
intended to afford, id. at 16 (quoting Henderson v. Kibbe, 431 U.S.
145, 154 n.12 (1977)).

Indeed, perhaps recognizing the threat to the contemporaneous
objection rule that would otherwise exist, we believe the Court in
Olano left at least an implication that review would not be available
in the special case. The final sentence of the above-quoted paragraph
from Olano reads that "[a]t a minimum" an error must be clear at the
time of appeal if the court of appeals is to have authority to review
the error. The introductory adverbial phrase "[a]t a minimum" con-
veys that something more than obviousness at the time of appeal
might also be required before an appellate court may review an error
to which no objection was made at trial. Almost certainly, the "some-
thing more" is a reference to the possibility (as to which the Court
declined to comment in the immediately preceding sentence) that the
error might also have to have been clear at the time of trial.

The implication against review in the special case is also apparent
from the fact that the final sentence of the paragraph (like the entire
discussion at this point in the opinion) is an articulation of an affirma-
tive limitation upon, not an affirmative grant of, authority to review
errors as to which no objections were made at trial. The sentence
reads that, at a minimum, a court cannot review an error unless the
error is clear at the time of appeal; the sentence does not read that,
at a minimum, a court can review an error if it is clear at the time of
appeal. Thus the implication that more errors might be unreviewable
than just those not plain on appeal, rather than that more errors might
be reviewable than just those plain on appeal. In other words, we
believe the Olano paragraph is best understood as if it read to this
effect:

                     9
         The second limitation on appellate authority under Rule
         52(b) is that the error be "plain." "Plain" is synonymous
         with "clear" or, equivalently, "obvious." At a minimum, the
         Court of Appeals cannot correct an error pursuant to Rule
         52(b) unless the error is clear under current law.[It may be
         that the appellate court cannot correct an error unless the
         error was also clear at the time of trial. But "[w]e need not
         consider" that question, that is, whether review is authorized
         "where the error was unclear at the time of trial but becomes
         clear on appeal because the applicable law has been clari-
         fied."]

2.

It should be apparent that as we understand the Olano special case,
it does not include a claim such as that raised by David. At the time
of David's trial, the caselaw was clear (although as we now know,
wrong) that materiality under section 1001 was to be determined by
the court as a matter of law. Our circuit, as well as every other circuit
that had considered the issue at that time, except the Ninth, had so
held. See United States v. Gaudin, 28 F.3d 943, 955 (9th Cir. 1994)
(en banc) (Kozinski, J., dissenting) (collecting cases), aff'd, 115 S. Ct.
2310 (1995). Supreme Court caselaw itself even suggested, if not
compelled, that materiality should be decided as a matter of law. As
the Court explained in Gaudin, it could not hold that materiality must
be submitted to the jury while still "adhering to the reasoning and the
holding" of Sinclair v. United States , 279 U.S. 263 (1929), which it
proceeded to "repudiate" in full. Gaudin , 115 S. Ct. at 2318.7 Thus,
_________________________________________________________________
7 In addition to the fact that virtually every circuit had held that materi-
ality was to be decided by the court and that Supreme Court caselaw sug-
gested the same, the Court in Kungys v. United States, 485 U.S. 759
(1988), in holding that materiality under 8 U.S.C.§ 1451 is to be deter-
mined by a judge as a matter of law, had relied on a Sixth Circuit case,
United States v. Abadi, 706 F.2d 178, 180 (6th Cir.), cert. denied, 464
U.S. 821 (1983), which had held that materiality in a section 1001 prose-
cution is to be determined by the court as a matter of law. The Court's
citation to Abadi was so significant that the Tenth Circuit was forced to
reconsider whether materiality under section 1001 was a question of law
to be decided by the judge and consequently overruled its prior cases
which had held that materiality was a question for the jury. See United
States v. Daily, 921 F.2d 994, 1004-05 (10th Cir. 1990), cert. denied,502
U.S. 952 (1991).

                   10
the error (or law) at the time of David's trial was by no means
unclear, nor was the law subsequently clarified.

3.

That David's claim may not have been within the contemplation of
the Court when it constructed the Olano passage, however, is not, we
think, ultimately dispositive of whether we may review that claim
under Rule 52(b), because we are convinced that, had the Court con-
sidered the circumstance before us, it would have found this circum-
stance (in contrast to the special case) to be one in which appellate
review should be authorized, for the very same reasons that it sug-
gested there might well not be review in the special case.

Allowing Rule 52(b) review where an objection at trial would have
been baseless in light of then-existing caselaw, unlike allowing
review where the error was merely "unclear" at the time of trial, fur-
thers the substantial interest in the orderly administration of justice
that underlies the contemporaneous objection rule. As the Court has
often stated, one of the fundamental purposes of the contemporaneous
objection rule is to protect judicial resources, in particular by ensuring
that the trial courts will have an opportunity to avoid errors that might
otherwise necessitate time-consuming retrial. See Wainwright, 433
U.S. at 90; Estelle v. Williams, 425 U.S. 501, 508 n.3 (1976). Requir-
ing objection at trial in the face of established precedent to the con-
trary would result in defendants raising frivolous objections simply to
ensure that they would receive on appeal the benefit of any later
reversals of precedent -- the very kind of waste of judicial resources
that the contemporaneous objection rule was intended to discourage.
At the same time, allowing appellate review where an objection at
trial would have been insupportable in no way frustrates the second
objective of the contemporaneous objection rule of preventing coun-
sel from "sandbagging" the courts by withholding a valid objection
from the trial court in order to obtain a new trial when the error is rec-
ognized on appeal, because an objection at trial would unquestionably
have been overruled in any event. In fact, for similar reasons to those
which counsel allowing review where an objection at trial would have
been pointless, the Supreme Court has recognized the possible value
of allowing previously implausible claims to be raised in collateral
habeas proceedings, so that counsel will not proceed to raise in state

                     11
court proceedings "any and all remotely plausible constitutional
claims that could, some day, gain recognition." Reed v. Ross, 468
U.S. 1, 16 (1984).

Recognition of appellate review authority where clearly established
law has been reversed also avoids what would otherwise be the anom-
aly that a significant set of errors -- including the error in the instant
case -- would be cognizable on habeas review but not cognizable on
direct review, even though the burden of justifying federal habeas
relief is "significantly higher" than the showing necessary to establish
"plain error" on direct appeal. United States v. Frady, 456 U.S. 152,
163-66 (1982); see also Engle v. Isaac , 456 U.S. 107, 134-35 (1982);
Henderson v. Kibbe, 431 U.S. 145, 154 (1977). For, as the Court has
held, a habeas petitioner can establish"cause" for his failure to raise
a constitutional claim in accordance with state procedures (i.e., in
accordance with the contemporaneous objection rule), and thus raise
the claim collaterally where, as here, the Supreme Court overrules its
own precedent or reverses "longstanding and widespread practice to
which th[e] Court has not spoken, but which a near-unanimous body
of lower court authority has expressly approved." Reed, 468 U.S. at
17 (internal quotation marks omitted); compare Engle, 456 U.S. at
130 (futility cannot constitute cause).8 Indeed, the Court's holding
that such a claim could be raised even on habeas rested in part on the
very same reasoning that underlies our decision that plain error
review should be available in like circumstances, namely, that in such
a circumstance there will "almost certainly" have been no reasonable
basis upon which a litigant could have raised an objection at trial or
on direct appeal. Reed, 468 U.S. at 17.

Accordingly, we hold that, unlike in the special case as literally
described in Olano, both the purposes of the contemporaneous objec-
tion rule and considerations of sound judicial administration counsel
in favor of plain error review where an objection at trial would have
been indefensible because of existing law, but a supervening decision
_________________________________________________________________
8 Teague v. Lane, 489 U.S. 288 (1989), of course, would not present
an independent bar to raising the claim in a writ of habeas corpus, since
the "new rule" would be announced while the case was pending on direct
appeal, and thus before the conviction became final.

                     12
prior to appeal reverses that well-settled law, rendering defendant's
claim clearly meritorious.

Although we do so on somewhat different grounds, we join our sis-
ter circuits in recognizing appellate review authority in this circum-
stance. Five circuits have stated that, regardless of the law at the time
of trial, an appellate court may review an error under Rule 52(b) if
the error is clear on appeal. See Ross, 1996 WL 41564, at *8 ("A
`plain' error is one that is clear and uncontroverted at the time of
appeal."); United States v. Kramer , 73 F.3d 1067, 1074 n.16 (11th
Cir. 1996) (same); Keys, 67 F.3d at 810 ("The error is plain, for pur-
poses of correctability, because it became plain pending review.");
Viola, 35 F.3d at 42 (same); Retos, 25 F.3d at 1230 (same).9 The Dis-
trict of Columbia Circuit has held that an error must be plain at the
time of trial in order for an appellate court to correct the error under
Rule 52(b), see United States v. Merlos , 8 F.3d 48, 51 (D.C. Cir.
1993), cert. denied, 114 S. Ct. 1635 (1994); see also United States v.
Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994) (en banc), cert.
denied, 115 S. Ct. 1266 (1995),10 but that circuit has adopted a
"supervening-decision doctrine," which allows a court, in a circum-
stance such as that before us, to "consider issues not raised at trial
_________________________________________________________________
9 Because each of these courts addressed only the circumstance where
the law at the time of trial was uniformly against the defendant's claim,
it is unclear, despite their unequivocal language that the clarity of the
error at the time of trial is irrelevant, whether these courts would actually
recognize appellate review authority in the circumstance of the special
case as literally described by the Court in Olano. To our knowledge, no
court has actually held such an error to have been plain.
10 The District of Columbia Circuit seemingly rests its holding that the
error must have been plain at the time of trial upon the assumption that
the final sentence from the Olano passage reads that "[a]t a minimum,
the Court of Appeals cannot correct an error pursuant to Rule 52(b)
unless the error is clear under current law at the time of trial." See, e.g.,
Merlos, 8 F.3d at 51 ("The second prong of Olano's test is not satisfied
unless the instruction given was plainly erroneous under current law at
the time of trial."); see also Calverley, 37 F.3d at 162-63 (same). The
underscored language "at the time of trial," however, does not appear in
the sentence from Olano. As we explain supra at 8-9, 11-12, absent the
superimposed language, it would seem the final sentence can only refer
to the law at the time of appeal.

                    13
where a supervening decision has changed the law in appellant's
favor and the law was so well-settled at the time of trial that any
attempt to challenge it would have appeared pointless," United States
v. Washington, 12 F.3d 1128, 1139 (D.C. Cir.), cert. denied, 115 S.
Ct. 98 (1994); see also United States v. Byers, 740 F.2d 1104, 1115
n.11 (D.C. Cir. 1984) (en banc) (Scalia, J., writing for a plurality); cf.
United States v. Weiner, 3 F.3d 17, 24 n.5 (1st Cir. 1993) ("Arguably,
. . . no plain error requirement [should be] imposed, where the
Supreme Court's ruling comes out of the blue and could not have
been anticipated.").11

4.

Because any objection to the materiality instruction at David's trial
most assuredly would have been for naught, and because, as discussed
_________________________________________________________________
11 The District of Columbia Circuit's rationale for resorting to the
supervening-decision doctrine is much the same as our rationale for hold-
ing that the error in this case is cognizable under Rule 52(b). As that
court explained,

          [t]he supervening-decision doctrine reflects the principle that it
          would be unfair, and even contrary to the efficient administration
          of justice, to expect a defendant to object at trial where existing
          law appears so clear as to foreclose any possibility of success.
          Unless the appellate court reaches out on its own to consider the
          effect of a supervening decision in such a situation, the defen-
          dant, through no fault of her own, would not receive the benefit
          of the change in law.

Washington, 12 F.3d at 1139. Indeed, the distinction between reliance
upon a supervening-decision doctrine and Rule 52(b)'s strict require-
ments may itself be merely a pedantic one, because the remaining Olano
factors would likely be considered under the "supervening-decision doc-
trine" in any event. Cf. Byers, 740 F.2d at 1133 (Robinson, C.J., concur-
ring) (noting that "factors central to plain-error deliberations should also
figure prominently in the" supervening-decision doctrine). We believe,
however, that reliance upon the "supervening-decision doctrine" in this
context may well be foreclosed by Olano's injunction that an appellate
court may not notice an error except under Rule 52(b) (or some other
express provision of law). See Olano, 113 S. Ct. at 1777; cf. Viola, 35
F.3d at 42 ("The better view is that Rule 52(b) is the sole source of our
authority to correct errors not preserved by objection.").

                     14
in Part II.A, supra at 5, it is obvious error today not to submit the
question of materiality to the jury in a false statements prosecution,
see Gaudin, 115 S. Ct. at 2320, David has satisfied the requirement
of Rule 52(b) that his alleged error be "plain."

C.

Having determined that the district court's instruction constituted
"error" and that the error was "plain," we turn to Olano's third inquiry
of whether the error "affect[ed] substantial rights." As the Court in
Olano explained, the phrase "affecting substantial rights" "in most
cases . . . means that the error [was] prejudicial." 113 S. Ct. at 1778.
But, as the Court went on to recognize, "[t]here may be a special cate-
gory of forfeited errors that can be corrected regardless of their effect
on the outcome." Id. We believe that Sullivan v. Louisiana, 113 S. Ct.
2078, 2082 (1993), and recent Fourth Circuit precedent, compel the
conclusion that the failure to instruct on an element of the crime,
where the jury never made the constitutionally required findings, is
within that "special category" of forfeited errors, and satisfies Olano's
third prong.

In United States v. Johnson, 71 F.3d 139, 144 (4th Cir. 1995), we
held, in reliance upon Sullivan, that the failure to instruct on an ele-
ment of the crime, where that element cannot be inferred from the
other elements actually found by the jury, is an error not susceptible
to harmless error analysis. See also United States v. Gaudin, 28 F.3d
943, 951 (9th Cir. 1994) (en banc), aff'd on other grounds, 115 S. Ct.
2310 (1995); cf. Rose v. Clark , 478 U.S. 570, 578 (1986)
("[H]armless-error analysis presumably would not apply if a court
directed a verdict for the prosecution in a criminal trial by jury.").
Whether an error which is not susceptible to harmless error analysis
is also exempt from the showing of prejudice required to satisfy the
third prong of Olano has not been directly addressed by the Supreme
Court. See Olano, 113 S. Ct. at 1778; see also United States v.
Floresca, 38 F.3d 706, 723 (4th Cir. 1994) (en banc) (Russell, J., dis-
senting). However, we held in Floresca that such an error necessarily
"affect[s] substantial rights," satisfying the third prong of Olano. See
Floresca, 38 F.3d at 713. As we explained,

          [t]hat a constructive amendment always "affects substan-
          tial rights" is also clear by reading the plain language of

                     15
          Rule 52 in light of Stirone. Rule 52(a) squarely defines
          harmless error as error that does not affect substantial rights.
          Because the Stirone Court held that the error occasioned by
          constructive amendments can never be harmless . . . it fol-
          lows that such errors must affect substantial rights.

Id. (footnote omitted); see also Washington, 12 F.3d at 1138
("Because the prejudice inquiry is normally the same under the plain
error standard as under the harmless error standard, under Sullivan, a
constitutionally deficient reasonable doubt instruction is presump-
tively prejudicial."); United States v. Birbal, 62 F.3d 456, 461 (2d Cir.
1995) (similar analysis); Merlos, 8 F.3d at 50-51 (similar analysis);
United States v. Colon-Pagan, 1 F.3d 80, 81-82 (1st Cir. 1993)
(Breyer, C.J.) (similar analysis). David, therefore, has satisfied
Olano's third prong, as well. See United States v. Rogers, 18 F.3d
265, 268 (4th Cir. 1994) (holding "that th[e] ["failure to instruct on
the defendant's knowledge of the illegality of his own conduct,"] a
required element of the crime[,] is an error that affects substantial
rights").

D.

Even when all three of Olano's Rule 52(b) requirements have been
satisfied, the courts of appeals still have discretion whether to notice
an error. See Olano, 113 S. Ct. at 1778. Generally, we exercise our
discretion "`"in those circumstances in which a miscarriage of justice
would otherwise result,"'" id. at 1779 (quoting Young, 470 U.S. at 15
(quoting Frady, 456 U.S. at 163 n.14)), that is, in the case of actual
innocence of the defendant, or, where, irrespective of the defendant's
guilt or innocence, the plain error "`seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings,'" id. (quoting
Atkinson, 297 U.S. at 160).

Notwithstanding that so-called structural errors are generally
thought not to be subject to harmless error analysis, we are reluctant
to adopt a per se rule that every error as to which harmless error anal-
ysis need not be conducted must be noticed as plain error. See gener-
ally Sullivan, 113 S. Ct. at 2080-83 (analyzing whether an error
"affect[ed] substantial rights," not whether a court has discretion to
notice a plain error); Rose, 478 U.S. at 577-78 (same); Arizona v.

                    16
Fulminante, 499 U.S. 279, 306-12 (1991) (same). The Supreme Court
specifically rejected a "per se approach to plain-error review" in
Young, observing that such an approach is "flawed." 470 U.S. at 16
n.14. Olano itself noted that "a plain error affecting substantial rights
does not, without more, [establish that the error"seriously affect[ed]
the fairness, integrity or public reputation of[the] judicial proceed-
ings," Atkinson, 297 U.S. at 160], for otherwise the discretion
afforded by Rule 52(b) would be illusory." Olano, 113 S. Ct. at 1779.
And as the Ninth Circuit has observed, "even if error is `structural,'
and even if `structural error' is presumed to affect substantial rights
for purposes of the third prerequisite to correctability, a Court of
Appeals nevertheless should not reverse because of structural error
not raised at trial, unless the error `seriously affects the fairness,
integrity or public reputation of judicial proceedings.'" Keys, 67 F.3d
at 811; see also United States v. Lopez , 71 F.3d 954, 960 (1st Cir.
1995) ("In all events, our best guess is that the Supreme Court would
regard an omitted element reversible error per se if there were a
timely objection -- although not automatically`plain error' if no
objection occurred . . . ."); Ross, 1996 WL 41564, at *9 (similar anal-
ysis); Marder, 48 F.3d at 574-75 (similar analysis); United States v.
Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993) (similar analysis). But see
Birbal, 62 F.3d at 461; Colon-Pagan, 1 F.3d at 82. It seems to us, as
apparently it did to the Court in Olano, that only by examining the
particulars of each case can the "careful balancing" reflected in the
plain error rule be preserved. See Frady, 456 U.S. at 163; see also
Young, 470 U.S. at 16 ("Especially when addressing plain error, a
reviewing court cannot properly evaluate a case except by viewing
such a claim against the entire record.").

In this particular case, we are convinced that notice of the plain
error is warranted. First, there is no evidence in the record as to
whether the district court determined that materiality had been proven
beyond a reasonable doubt. Second, even assuming that the district
court did find David's false statement material under the correct bur-
den of proof, a jury could conceivably have concluded, as David
maintained at trial and continues to maintain on appeal, that material-
ity was not ultimately proven, from the fact that David would have
been allowed to continue as a firearms dealer even had he responded
truthfully to the indictment question (albeit under a "letter of opera-
tion" rather than a renewed license, see J.A. at 162-63). Finally,

                     17
David is charged with committing a crime against the government,
and, as the Supreme Court emphasized in Gaudin , "the power of the
jury . . . is most important [precisely when it is] a prosecution not for
harming another individual, but for offending against the government
itself." 115 S. Ct. at 2316. These factors, together with the fundamen-
tal nature of the error, leave us with little doubt that this is the kind
of case in which our limited discretion under Rule 52(b) is appropri-
ately exercised so as to preserve the fairness, integrity and reputation
of the judicial process.

David's conviction is, accordingly, vacated, and the case is hereby
remanded for a new trial.

VACATED AND REMANDED

ERVIN, Circuit Judge, concurring specially:

I am in complete agreement with the result reached by my col-
leagues and with the rationale given for their legal conclusions.

I write separately only to indicate that I do not necessarily sub-
scribe to the statements and reasoning relating to the situation
described as the "special case" in Part II-B, Sections 1 and 2 of the
opinion (slip opinion pp. 6-11). I have the same concerns about much
of what is written about Circumstances A), B), C) and D). It is my
view that the opinion goes substantially beyond what is required to
enable us to decide this particular case and I believe that we should
limit our decision to the issues that resolve the legal questions before
us. Other issues are best left for another day.

It is not my premise that the present opinion undertakes to create
precedent with reference to the Olano "special case" situation or to
any of the other issues discussed which are not essential to our hold-
ing. In fact, a fair reading indicates the opposite. I simply prefer a less
expansive discussion of the case before us.

                     18
