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REVISED, OCTOBER 26, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-11090
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE FOSTER,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
October 5, 2000
Before DAVIS, JONES and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Willie Foster was indicted and convicted by a
jury of three counts of presenting false, fictitious and fraudulent
claims to the government in violation of 18 U.S.C. § 287 and § 2.
Foster made the fraudulent claims in the 1996 income tax returns of
three different individuals for payment of a tax refund. Each
count charged that Foster made a claim for "black taxes in the
amount of $43,209" and that he knew the claims were false,

fictitious and fraudulent. After conviction, the district court
sentenced Foster to 24 months imprisonment, supervised release and
a $300 special assessment. On appeal, Foster contends that the
district court erroneously refused to charge the jury that
materiality is an essential element of § 287 false claims offenses,
and that such error prejudiced his defense and was not harmless.
Because we conclude that even if the § 287 violations at issue in
this case required a jury instruction on materiality, the court's
error was harmless, we affirm.
Both Foster and the government urged this court to trace
the lengthy history of § 287 violations in light of the Supreme
Court's recent spate of rulings on materiality requirements in
connection with fraud-based federal criminal statutes. Such an
endeavor, though it might be interesting, is entirely unnecessary
here. In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827
(1999), the Supreme Court held that the omission of a jury
instruction on materiality, where that is an essential element of
a federal offense, is subject to harmless-error analysis.1 Thus,
if the constitutional error was harmless beyond a reasonable doubt,
the conviction can stand. Neder, 527 U.S. at 15, 119 S.Ct. at
1836.
1Although we need not decide the issue in this case, we read
Neder to require a materiality instruction and the better practice
would be to give the instruction in a § 28 false claim offense.
2

In this case, the error, if any, in omitting a
materiality instruction was of such quality. As the Court said in
Neder, "a false statement is material if it has `a natural tendency
to influence or [is] capable of influencing, the decision of the
decisionmaking body to which it was addressed,'" 527 U.S. at 16,
119 S.Ct. at 1827 (citations omitted). Neder then noted the
conclusion of several courts that any failure to report income is
material to a tax offense. Id. Here, the government argues that
filing any claim for recovery of money against the United States
involves a material statement. Even if that conclusion is
overbroad, there is no doubt that the amounts claimed in the black
tax returns that Foster assisted with were as material as they were
unjustified. The huge scope of IRS's processing and review
activities makes it inevitable that a sensible threshold of
materiality must be applied to irregularities planted in tax refund
claims. Were it not so, taxpayers would be encouraged to take
advantage of IRS's practical inability to review each return
individually. How low the threshold should be requires no
exploration here, however, because of the large amounts claimed in
these returns. We conclude, similarly to Neder, that beyond a
reasonable doubt, Foster's false statements were material to the
tax refund claims.
For these reasons, the judgment of conviction is
AFFIRMED.
3