Need I say more? It is a truism that materiality is an exceedingly easy element to prove in a prosecution brought under 18 U.S.C. Section 1001. It is even easier to sustain on appeal. But in U.S. v. Joseph Johnson, the Third Circuit held that the government failed to prove materiality under 18 U.S.C. Section 1001 (a) (2), which prohibits “knowingly and willfully… mak[ing] any materially false, fictitious, or fraudulent statement or representation” in a matter within the jurisdiction of the federal government. Joseph R. Johnson was a Bill Cosby supporter who filed a fraudulent pleading in a federal civil action brought by one of Cosby's alleged victims. Specifically, Johnson filed a praecipe that used the signature of the alleged victim's actual attorney, but which was filed without the attorney's knowledge and which contained unsupported allegations that Cosby's alleged victim had failed to report income. Almost immediately after the false pleading was discovered it was stricken from the record by the civil trial judge. Johnson was then indicted under Section 1001 for making a false material representation to the civil trial judge. Materiality requires evidence that the false statements were of the kind "capable of influencing the decisionmaker" and that "could have bearing on an actual decision entrusted to the decisionmaker." In Johnson, the only decisionmaker identified by the prosecution was the civil trial judge, who testified in general that he extracted information whenever he looked at the docket and then took action based on that information. But, according to the Third Circuit, "given the subject matter of the underlying litigation and posture of the case, there is no evidence that this false statement, even if considered by the Judge, could have been relevant, much less material, to any decision." In other words, the stricken meshugannah pleading would not have been relevant or admissible in the alleged victim's case. The only thing it was relevant to was the judge's decision to strike it from the docket, which was not enough. The Third Circuit, without explicitly saying so, seemed to believe that no proof the government might have offered would have sufficed to show materiality in this instance. Assistant Federal Defender Abigail Horn successfully argued the appeal for Johnson and congratulations are in order. I doubt there have been very many successful federal criminal defense appeals on the materiality issue.

(wisenberg)