United States v. Michael Curtis Keys

Keys was charged with the crime of having made as a witness a false declaration in federal court in violation of 18 U.S.C. § 1623 (a), also known as perjury. The statutory “materiality” element of this offense, however, was not submitted for decision to the jury, but, with the assent of both parties, to the trial judge. This practice reflected the established law of this circuit at the time of the trial. After the judgment of conviction, however, the law changed. The law now mandates that the materiality element of such crimes be decided not by the trial judge, but by the trial jury.

On appeal, Keys asks for the retroactive benefit of this change in the law, and he asks us to review his conviction for error pursuant to Fed.R.Crim.P. 52(a) as though he had objected to the handling of the materiality element. The government takes exception to this request and exhorts us instead to review for “plain error” under Fed.R.Crim.P. 52(b) as defined by the more stringent discretionary standards called for by United States v. Olano, 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). In this regard, Keys and the government present us with significant questions regarding the limits of…

with whom BROWNING and LEAVY, Circuit Judges, join, dissenting:

I respectfully dissent.

Our decision today puts us at odds with eight other circuits. We are the only circuit to have resolved this issue as we now have. Our original panel decision, United States v. Keys, 67 F.3d 801 (9th Cir.1995), followed the similar approach in two other circuits. Six other circuits have since gone the same way. This national uniformity has been shattered by today’s different approach. We got it right the first time.

Though hypertechnical in form, the question we resolve today has considerable practical importance. Two recent changes of law, for example, will require an enormous number of retrials under today’s decision. One makes materiality in perjury and false statement cases an element to be submitted to the jury. See United States v. Gaudin, — U.S. -, 115 S.Ct. 2310 , 132 L.Ed.2d 444 (1995). The other generally limits “use” of a firearm dining and in relation to certain crimes to “active employment.” See Bailey v. United States, — U.S. -, 116 S.Ct. 501 , 133 L.Ed.2d 472 (1995). Requiring new trials after a long delay inevitably means many guilty people will go free, because witnesses will…

95 F.3d 874 65 USLW 2224 , 96 Cal. Daily Op. Serv. 6789 , 96 Daily Journal D.A.R. 11 ,072 UNITED STATES of America, Plaintiff-Appellee, v. Michael Curtis KEYS, Defendant-Appellant. No. 93-50281. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 23, 1996. Decided Sept. 11, 1996. Errol H. Stambler, Los Angeles, California, for defendant-appellant. John P. Elwood, United States Department of Justice, Washington, D.C.; Miriam A. Krinsky, Stefan D. Stein, Assistant United States Attorneys, Los Angeles, California, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California, David V. Kenyon, District Judge, Presiding; No. CR-91-00734-DVK. Before: HUG, Chief Judge, BROWNING, FLETCHER, PREGERSON, JOHN T. NOONAN, Jr., THOMPSON, LEAVY, TROTT, T.G. NELSON, KLEINFELD, and TASHIMA, Circuit Judges. TROTT, Circuit Judge: 1 Keys was charged with the crime of having made as a witness a false declaration in federal court in violation of 18 U.S.C. § 1623 (a), also known as perjury. The statutory "materiality" element of this offense, however, was not submitted for decision to the jury, but, with the assent of both parties, to…