520 U.S. 461117 S.Ct. 1544137 L.Ed.2d 718
Joyce B. JOHNSON, Petitioner,v.UNITED STATES.
No. 96-203.
Supreme Court of the United States
Argued Feb. 25, 1997.
Decided May 12, 1997.


Syllabus
*

Petitioner Johnson testified before a federal grand jury, investigating, inter alia, the disposition of proceeds from her boyfriend's alleged drug trafficking, that she had obtained tens of thousands of dollars to improve her home from a box of cash given her late mother by one Talcott.  Subsequently, she was charged with violating 18 U.S.C. §1623, which proscribes "knowingly mak[ing] any false material declaration'' under oath before a grand jury.  At her trial, it was revealed that her boyfriend had negotiated the purchase of her home and had an interest in a corporation whose checks had been used to help pay for the property, and that Talcott had died several years before the time he allegedly gave her mother the money.  Johnson did not object when, in accordance with then-extant Circuit precedent, the judge instructed the jury that materiality was a question for him to decide, and that he had determined that her statements were material.  Johnson was convicted of perjury, but before her appeal, this Court ruled, in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444, that the materiality of a false statement must be decided by a jury rather than a trial judge.  On appeal, Johnson's claim that her conviction was invalid under Gaudin was reviewed by the Eleventh Circuit pursuant to Federal Rule of Criminal Procedure 52(b), which allows plain errors affecting substantial rights to be noticed even though no objection has been made.  Following the analysis outlined in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508, the court assumed arguendo that the District Court's failure to submit materiality to the jury constituted "error'' that was "clear or obvious.''  However, it concluded that any such error did not affect "substantial rights'' because  its independent review of the record showed that there was "overwhelming'' evidence of materiality and that no reasonable juror could conclude that Johnson's false statements about the money's source were not material to the grand jury's investigation.
Held: The trial court's action in this case was not "plain error'' of the sort which an appellate court may notice under Rule 52(b).
(a)  Since §1623's text leaves no doubt that materiality is an element of perjury, Gaudin dictates that materiality in this case be decided by the jury, not the court.  Johnson's failure to timely assert that right before the trial court ordinarily would result in forfeiture of the right pursuant to Rule 30.  However, Rule 52(b) mitigates Rule 30 and, contrary to Johnson's argument, governs her direct appeal.  The Olano test for applying Rule 52(b) requires that there be (1) error, (2) that is plain, and (3) that affects substantial rights.  If these three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.  Pp. ____-____.
(b)  The first prong of Olano is satisfied here, as Gaudin must be applied to Johnson's case on direct review.  See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649. The second prong is met as well.  In a case such as this-where the law at the time of trial was settled and clearly contrary to  the law at the time of appeal-it is sufficient that the error be plain at the time of appellate consideration.  Even assuming that the third prong is also satisfied, a court must still determine whether the forfeited error meets the fourth prong before it may exercise its discretion to correct the error.  In this case the fourth question must be answered in the negative.  Materiality was essentially uncontroverted at trial and has remained so on appeal. Johnson has presented no plausible argument that her false statement under oath-lying about the source of the money she used to improve her home-was somehow not material to the grand jury investigation.  It would be the reversal of her conviction, not the failure to notice the error, that would seriously affect the fairness, integrity, or public reputation of judicial proceedings. Pp. ____-____.
82 F.3d 429 (C.A.11 1996), affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, which was unanimous except insofar as SCALIA, J., did not join Parts II-B and II-C.
Wm. J. Sheppard, Jacksonville, FL, for petitioner.
Michael Dreeben, Washington, DC, for respondent.
Chief Justice REHNQUIST delivered the opinion of the Court.**


1
In this case the trial court itself decided the issue of materiality in a perjury prosecution, rather than submitting it to the jury as our decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), now requires.  No objection was made by the petitioner, Joyce B. Johnson, and we hold that the court's action in this case was not "plain error'' of the sort which an appellate court may notice under Federal Rule of Criminal Procedure 52(b).


2
In the late 1980's, a federal investigation into the cocaine and marijuana trafficking of Earl James Fields revealed that he and his partner had amassed some $10 million from their illicit activities.  Following the money trail, federal authorities subpoenaed petitioner Joyce B. Johnson, Fields' long-time girlfriend, to testify before a federal grand jury.  Johnson, who is the mother of a child by Fields, earned about $34,000 a year at the Florida Department of Health and Rehabilitative Services.  She testified before the grand jury that she owned five pieces of real property, including her house.  That house was purchased by Johnson in 1991 for $75,600, and in the next two years she added sufficient improvements to it that in 1993 it was appraised at $344,800.  When asked the source of her home improvement funds, Johnson stated that she had put $80,000 to $120,000 into her house, all of which had come from a box of cash given her late mother by one Gerald Talcott in 1985 or 1986.


3
On the basis of this testimony, Johnson was indicted for perjury under 18 U.S.C. §1623.  At trial, it was revealed that Fields had negotiated the original purchase of Johnson's home and that Johnson had paid for the property with eight different cashier's checks, including two from a corporation in which Fields had an interest.  It was also established that Gerald Talcott had died in April 1982, several years before the time Johnson claimed he had given her mother the box full of cash.


4
At the close of Johnson's trial, and in accordance with then-extant Circuit precedent, see, e.g., United States v. Molinares, 700 F.2d 647, 653 (C.A.11 1983), the District Judge instructed the jury that the element of materiality was a question for the judge to decide, and that he had determined that her statements were material.  App. 72.  Johnson did not object to this instruction.  Indeed, when the prosecution had presented evidence concerning materiality during the trial, she had then objected, on the ground that materiality was a matter for the judge, and not the jury, to decide. Id., at 61.  The jury returned a verdict of guilty, and Johnson was sentenced to 30 months' imprisonment, three years' supervised release, and a $30,000 fine.


5
After Johnson was convicted, but before her appeal to the Court of Appeals, we decided United States v. Gaudin, supra, which held that the materiality of a false statement must be submitted to the jury rather than decided by the trial judge.  On her appeal, Johnson argued that the trial judge's failure to submit materiality to the jury rendered her conviction invalid under Gaudin.


6
Because Johnson had failed to object to the trial judge's deciding materiality, the Court of Appeals for the Eleventh Circuit reviewed for plain error.  Rule 52(b) of the Federal Rules of Criminal Procedure provides:


7
"Plain Error.  Plain errors or defects affecting substantial      rights may be noticed although they were not brought to the      attention of the Court.''


8
Following our analysis in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Court of Appeals assumed arguendo that the District Court's failure to submit materiality to the jury constituted "error'' that was "clear or obvious,'' but concluded nonetheless that any such error did not affect the "substantial rights'' of the defendant.  That conclusion was based on the court's independent review of the record and determination that there was "overwhelming'' evidence of materiality and that " [n]o reasonable juror could conclude that Johnson's false statements about the source of the money  . . .  were not material to the grand jury's investigation.''  App. to Pet. for Cert. 9a (judgment order reported at 82 F.3d 429 (C.A.11 1996)).  Due to the conflict between this decision and the Ninth Circuit's en banc decision in United States v. Keys, 95 F.3d 874 (1996), we granted certiorari. 519 U.S. ----, 117 S.Ct.  451, 136 L.Ed.2d 346 (1996).  We now affirm.


9
* Title 18 U.S.C. §1623 proscribes "knowingly mak[ing] any false material declaration'' under oath before a grand jury. Although we merely assumed in Gaudin that materiality is an element of making a false statement under 18 U.S.C. §1001, and although we recently held that materiality is not an element of making a false statement to a federally insured bank under 18 U.S.C. §1014, United States v. Wells, 519 U.S. ----, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997), there is no doubt that materiality is an element of perjury under §1623.  The statutory text expressly requires that the false declaration be "material.'' Gaudin therefore dictates that materiality be decided by the jury, not the court.


10
Petitioner, however, did not object to the trial court's treatment of materiality.  Rule 30 of the Federal Rules of Criminal Procedure provides, " [n]o party may assign as error any portion of the [jury] charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.''  This Rule is simply  the embodiment of the "familiar'' principle that a right ""may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.''' Olano, supra, at 731, 113 S.Ct., at 1776 (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944)).  The Rule is mitigated, however, by Rule 52(b), which allows plain errors affecting substantial rights to be noticed even though there was no objection.


11
Petitioner argues that she need not fall within the "limited'' and "circumscribed'' strictures of Olano, because the error she complains of here is "structural,'' and so is outside Rule 52(b) altogether.  But the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure.  None of the cases discussing "structural error,'' upon which petitioner relies, were direct appeals from judgments of conviction in the federal system. Several came from state courts which had considered the claimed error under their own rules.  See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Others came here by way of federal habeas challenges to state convictions.  See Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).  None of them were subject  to the provisions of Rule 52.


12
But it is that Rule which by its terms governs direct appeals from judgments of conviction in the federal system, and therefore governs this case.  We cautioned against any unwarranted expansion of Rule 52(b) in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), because it "would skew the Rule's "careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed,''' id., at 15, 105 S.Ct., at 1046 (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)).  Even less appropriate  than an unwarranted expansion of the Rule would be the creation out of wholecloth of an exception to it, an exception which we have no authority to make.  See Carlisle v. United States, 517 U.S. ----, ----, 116 S.Ct. 1460, 1466, 134 L.Ed.2d 613 (1996).

II

13
We therefore turn to apply here Rule 52(b) as outlined in Olano. Under that test, before an appellate court can correct an error not raised at trial, there must be (1) "error,'' (2) that is "plain,'' and (3) that "affect[s] substantial rights.'' 507 U.S., at 732, 113 S.Ct., at 1776.  If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error """seriously  affect[s] the fairness, integrity, or public reputation of judicial proceedings.''''' Ibid. (quoting United States v. Young, supra, at 15, 105 S.Ct., at 1046, in turn quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).


14
* There is no doubt that if petitioner's trial occurred today, the failure to submit materiality to the jury would be error under Gaudin. Under Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), a "new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases  . . . pending on direct review  . . . , with no exception for cases in which the new rule constitutes a "clear break' with the  past.'' Id., at 328, 107 S.Ct., at 716.  Because petitioner is still on direct review, Griffith requires that we apply Gaudin retroactively.  Accordingly, under Gaudin there was "error,'' and the first prong of Olano is satisfied.

B

15
The second prong is more difficult. Olano explained that the word "plain'' is "synonymous with "clear' or, equivalently, "obvious.''' 507 U.S., at 734, 113 S.Ct., at 1777.  But Olano refrained from deciding when an error must be plain to be reviewable. "At a minimum,'' Olano concluded, the error must be plain "under current law.'' Ibid. In the case with which we are faced today, the error is certainly clear under "current law,'' but it was by no means clear at the time of trial.


16
The Government contends that for an error to be "plain,'' it must have been so both at the time of trial and at the time of appellate consideration.  In this case, it says, petitioner should have objected to the court's deciding the issue of materiality, even though near-uniform precedent both from this Court and from the Courts of Appeals held that course proper.1 Petitioner, on the other hand, urges that such a rule would result in counsel's inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.  We agree with petitioner on this point, and hold that in a case such as this-where the law at the time of trial was settled and clearly contrary to the law at  the time of appeal-it is enough that an error be "plain'' at the  time of appellate consideration.  Here, at the time of trial it was settled that the issue of materiality was to be decided by the court, not the jury; by the time of appellate consideration,  the law had changed, and it is now settled that materiality is an issue for the jury.  The second part of the Olano test is therefore satisfied.

C

17
But even though the error be "plain,'' it must also "affec[t] substantial rights.''  It is at this point that petitioner's argument that the failure to submit an element of the offense to the jury is "structural error'' becomes relevant.  She contends in effect that if an error is so serious as to defy  harmless-error analysis, it must also "affec[t] substantial rights.''  A "structural'' error, we explained in Arizona v. Fulminante, is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process  itself,'' 499 U.S., at 310, 111 S.Ct., at 1265.  We have found structural errors only in a very limited class of cases: See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (a total deprivation of the right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (lack of an impartial trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (unlawful exclusion of grand jurors of defendant's race); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (the right to self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (the right to a public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d  182 (1993) (erroneous reasonable-doubt instruction to jury).


18
It is by no means clear that the error here fits within this limited class of cases. Sullivan v. Louisiana, the case most closely on point, held that the erroneous definition of "reasonable doubt'' vitiated all of the jury's findings because one could only speculate what a properly charged jury might have done. Id., at 280, 113 S.Ct., at 2082.  The failure to submit materiality to the jury, as in this case, can just as easily be analogized to improperly instructing the jury on an element of the offense, e.g., Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884,  114 L.Ed.2d 432 (1991); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), an error which is subject to harmless-error analysis, as it can be to failing to give a proper reasonable-doubt instruction altogether.  Cf. California v. Roy, 519 U.S. ----, ----, 117 S.Ct. 337, 339, 136 L.Ed.2d 266 (1996) ("The specific error at issue here-an error in the instruction that defined the crime-is  . . .  as easily characterized as a "misdescription of an element' of the crime, as it is characterized as an error of "omission''').

D

19
But we need not decide that question because, even assuming that the failure to submit materiality to the jury "affec[ted] substantial rights,'' it does not meet the final requirement of Olano. When the first three parts of Olano are satisfied, an appellate court must then determine whether the forfeited error ""seriously affect[s] the fairness, integrity or public reputation of judicial proceedings''' before it may exercise its  discretion to correct the error. Olano, 507 U.S., at 736, 113 S.Ct., at 1779 (quoting Atkinson, 297 U.S., at 160, 56 S.Ct., at  392).


20
In this case that question must be answered in the negative. As the Court of Appeals noted, the evidence supporting materiality was "overwhelming.''  App. to Pet. for Cert. 9a.  Materiality was essentially uncontroverted at trial2 and has remained so on appeal.  The grand jury here was investigating petitioner's long-time boyfriend's alleged cocaine and marijuana  trafficking and the "disposition of money which was proceeds of this cocaine and [marijuana] distribution activity, including the possible concealment of such proceeds as investments in real estate.'' App. 5-6.  Before the Eleventh Circuit and in her briefing before this Court, petitioner has presented no plausible argument that the false statement under oath for which she was convicted-lying about the source of the tens of thousands of dollars she used to improve her home-was somehow not material to the grand jury investigation.


21
On this record there is no basis for concluding that the error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.''  Indeed, it would be the reversal of a conviction such as this which would have that effect. "Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.''  R. Traynor, The Riddle of Harmless Error 50 (1970).  No "miscarriage of justice'' will result here if we do not notice the error, Olano, supra, at 736, 113 S.Ct., at 1779, and we decline to do so.  The judgment of the Court of Appeals is therefore


22

Affirmed.




*
 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.  See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.


**
 Justice Scalia joins all but Parts II-B and II-C of this opinion.


1
 See United States v. Corsino, 812 F.2d 26, 31, n. 3 (C.A.1 1987); United States v. Bernard, 384 F.2d 915, 916 (C.A.2 1967); United States v. Greber, 760 F.2d 68, 73 (C.A.3 1985); Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 367 (C.A.4 1985); United States v. Hausmann, 711 F.2d 615, 616-617 (C.A.5 1983); United States v. Chandler, 752 F.2d 1148, 1150-1151 (C.A.6 1985); United States v. Brantley, 786 F.2d 1322, 1327, and n. 2 (C.A.7 1986); United States v. Hicks, 619 F.2d 752, 758 (C.A.8 1980); United States v. Daily, 921 F.2d 994, 1004 (C.A.10 1990); United States v. Lopez, 728 F.2d 1359, 1362, n. 4 (C.A.11 1984); United States v. Hansen, 772 F.2d 940, 950 (C.A.D.C.1985).


2
 The Government represents-and petitioner has not disputed-that the sum total of petitioner's argument at trial concerning materiality consisted of the following conclusory sentence: ""I would argue that the element of materiality has been insufficiently proven and that the Court ought to grant a judgment of acquittal.'''  Brief for United States 5 (quoting trial transcript); see also Reply Brief for Petitioner 4, n. 5.


