Appellant-defendant Jerry Holley (Holley) appeals his conviction on two counts of perjury in violation of 18 U.S.C. § 1623.1 Holley challenges his conviction on the ground, inter alia, that the district court's refusal to give a specific unanimity jury instruction denied him his right to a unanimous jury verdict. We agree and accordingly reverse and remand.

In the latter half of 1985, Holley served as the chairman of the board of Peoples Savings and Loan (Peoples) of Llano, Texas. He was also a part owner of Peoples. His office was at the Peoples Mortgage Company, a Peoples subsidiary, in Dallas, Texas. In addition to attending board meetings, Holley actively solicited commercial real estate loans on behalf of Peoples. He also served on Peoples' senior loan committee, which was responsible for approving loans in excess of $250,000.

Holley was introduced to Eileen Marcus (Marcus) in 1985 for the purpose of conducting real estate transactions. Under the arrangement between Holley and Marcus, Marcus was to find property for sale and then a buyer for the property. They intended to realize a quick turnover profit on the purchase and immediate resale of the property to the buyer at a price above what they had paid. Peoples was to provide the financing for the purchase of the property.

Pursuant to her arrangement with Holley, Marcus signed a contract to purchase Southwest Parkway Plaza (the property) in Lewisville, Texas from Midway Development Company (Midway) for $2,400,000. The contract required that the buyer deposit with the Safeco Title Company (Safeco) an irrevocable letter of credit for $25,000 as earnest money on the purchase. The contract closing date was November 1, 1985.

Paulette Hubbard (Hubbard), an escrow agent employed by Safeco, received the contract for the property on September 10, 1985, from the real estate broker. She received the letter of credit, in the name of Peoples as issuer, on September 27, 1985, which was the origination date of the letter of credit.2 By its terms, the letter of credit expired sixty days after its origination date. Some time after receiving the letter of credit, Hubbard noticed that it lacked a signature.

She spoke to Holley on October 11, 1985, to discuss the absence of a signature. Holley apologized and told her that it was an oversight. He made an appointment to meet with Hubbard at 9:00 a.m. on the following Monday. Hubbard went to People's Dallas office at the arranged time and Holley was not there. Hubbard met an unidentified woman there who said that Holley had instructed her to sign the letter of credit on his behalf. This woman crossed out Holley's typed name as it appeared just below the signature line and signed the name "Mary Kam" on the signature line, writing "Secretary" just below that line.

The woman Hubbard met at Peoples was Carol Kam (Kam).3 She worked as Holley's personal receptionist and secretary. On the morning that Hubbard was to meet with Holley, he instructed Kam that a woman would come by with some papers to sign and that Kam should sign them with her mother's maiden name, which is Mary Margaret Hilz. Her mother goes by her married name, Mary Margaret Kam. Carol Kam signed the letter with the name "Mary Kam." She did not know why she used that name instead of the name "Mary Margaret Hilz."

When Marcus failed to close, Midway sought to collect on the letter of credit, but Peoples refused to honor it on the stated grounds that the letter was not entered inits register of letters of credit and that the president of Peoples, Joel Daniel (Daniel), was unable to learn who Mary Kam was.

Around the time that Marcus and Holley attempted to purchase Southwest Parkway Plaza, Marcus, in furtherance of her arrangement with Holley, signed a contract to purchase another property known as the Arapaho Station Shopping Center (Arapaho) in Richardson, Texas. The contract Marcus signed for the purchase of Arapaho required that she submit earnest money in the amount of $500,000. Holley signed a $500,000 Peoples letter of credit as earnest money, which, although Marcus failed to close, was never cashed by the sellers. Marcus and Holley intended to realize a quick turnaround profit on Arapaho as well.

Marcus was never required, as condition of the issuance of the letter of credit with respect to either of the transactions described above, to complete a credit application or file a financial statement with Peoples. She also was never required to provide any collateral for the extension of credit or to sign a promissory note in order to have the letters of credit issued on her behalf.

In January 1988 Holley filed his voluntary bankruptcy petition in the United States Bankruptcy Court for the Western District of Texas, Waco division. On April 6, 1988, Peoples filed in Holley's pending personal bankruptcy case an adversary action in the form of a complaint to establish and determine dischargeability of alleged debts of Holley to Peoples. Peoples filed an amended complaint (hereafter referred to simply as the complaint) in October 1988. There were no further amendments. Pursuant to formal notice filed therein by Peoples, Holley was deposed in connection with this adversary proceeding on December 21, 1988, December 22, 1988, and January 9 and 10, 1989.4 On May 15, 1990, Holley was indicted on two counts of perjury, in violation of 18 U.S.C. § 1623, on the basis of statements he made in the course of that deposition.

The indictment charges Holley with two counts of perjury.5 In each count, a section of Holley's deposition testimony is quoted and portions of this quoted testimony are underlined. Each count charges that in the deposition Holley did knowingly

association, Lloyd Kitchen or Joel or somebody, and asked them to send a sample copy of our LC, which was done for their chance to view it. This is a separate deal from Arrapahoe Station.make the false and material declarations that are the underlined portions of the quoted testimony. In the first count, testimony from Holley's deposition taken on December 22, 1988, is quoted and material in four of his responses is underlined. In the second count, testimony from statements Holley made on January 10, 1990, is quoted and material in eleven of his responses is underlined.6

At trial, Holley contended that the government had failed to prove that his statements were material. He also objected to the court's jury instructions respecting the unanimity requirement on the ground that the court failed to instruct the jury that it must be unanimous as to at least one particular statement in each count. The district court overruled Holley's objections. The court instructed the jury that, in order to find Holley guilty, it must find beyond a reasonable doubt that Holley's testimony "was false in one or more of the respects charged in" the proceeding pursuant to which the testimony was given.

The jury found Holley guilty on both counts. The district court sentenced him to concurrent sixteen-month terms of imprisonment and concurrent three-year terms of supervised release on each count. The court also ordered him to pay a $25,000 fine and a $100 special assessment. Holley timely appealed.

On appeal, Holley asserts several grounds of error. He claims that there was insufficient evidence to support the jury's verdict with respect to either count because the government failed to adduce sufficient evidence of the materiality of the alleged perjury, an essential element of the offense charged. He also claims that the district court committed reversible error by failing to instruct the jury that it must be unanimous with respect to at least one statement in each count of the indictment in order to find him guilty.

We find that the deposition statements that were the basis of Holley's indictment were material to the proceeding pursuant to which he was deposed. We also find, however, that the district court committed reversible error by failing to instruct the jury that it must unanimously agree that Holley perjured himself with respect to at least one statement in each count charged in the indictment. We accordingly reverse and remand.7

Holley contends that the subject of the deposition testimony that formed the basis of his perjury conviction was not material to the issues raised in Peoples' complaint. The complaint, Holley notes, lists several specific instances of fraudulent conduct by Holley but fails to refer even once to the letter of credit transaction. Holley also notes that the letter of credit transaction involved fraud against a third party other than Peoples and the specific transactions alleged in the complaint alleged fraud against Peoples.

The government contends that although the complaint did not list the letter of credit transaction as a specific instance of fraudulent conduct, the transaction was material because it increased the likelihood that the fact finder would conclude that Holley had committed the fraudulent acts that were specified in the complaint. The acts that were specified in the complaint occurred roughly contemporaneously with the letter of credit transaction and these acts similarly involved Holley's making of loans without obtaining adequate loan applications or financial statements. The government also claims that the letter of credit transaction was material to the general allegation in Peoples' complaint that Holley had made loans without obtaining the requisite documentation.

To obtain a perjury conviction, the government must prove that Holley's statements were, at the time made, material to the proceeding in which his deposition was taken. United States v. Gremillion, 464 F.2d 901, 904-05 (5th Cir.), cert. denied, 409 U.S. 1085, 93 S. Ct. 683, 34 L. Ed. 2d 672 (1972). "Materiality is a legal question to be decided by the court and is not an issue for the jury to determine." Id. at 905. We recently stated that "[t]he most common formulation of [the materiality concept] is that a concealment or misrepresentation is material if it ' "would have the natural effect or tendency to influence" ' the decision of the tribunal to which it is addressed." United States v. Salinas, 923 F.2d 339, 341 (5th Cir.1991) (quoting United States v. Thompson, 637 F.2d 267, 268 (5th Cir.1981) (quoting Gremillion, 464 F.2d at 905)).

In the instant case, Holley's false testimony was given during a civil deposition pursuant to an adversary proceeding brought by Peoples in Holley's bankruptcy case to determine the dischargeability of Holley's debts. The record does not reflect that there ever was a trial or other hearing on the adversary proceeding, or that any formal court use in that proceeding was ever made of deposition testimony.8 Holley contends that the areas of inquiry that can be considered material in a deposition cannot extend beyond the areas of inquiry that would be permissible--and the evidence that would be admissible--at trial. Holley therefore contends that materiality must be limited to issues specifically raised in Peoples' pleadings and that these issues must be confined to fraudulent transactions which resulted in a loss to Peoples. Because the parties to the deposition stipulated that objections to questions would be waived until trial, Holley argues, he did not have the opportunity to exclude immaterial matter from the scope of inquiry.

Courts have long recognized the broad scope of discovery, see generally 8 C. Wright & A. Miller, Federal Practice & Procedure § 2007 (1970), and as noted in a famous passage of the Supreme Court:

"[T]he deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession." Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 392, 91 L. Ed. 451 (1947) (footnote omitted).

Holley would require that the scope of materiality with respect to testimony given at a deposition be narrower than the permissible scope of deposition testimony as expressly envisioned in the Federal Rules of Civil Procedure. Rule 26(b)(1) of the Federal Rules permits discovery of information that would be inadmissible at trial "if [it] appears reasonably calculated to lead to the discovery of admissible evidence." Ordinarily, there would appear to be no sufficient reason why a deponent should not be held to his oath with respect to matters properly the subject of and material to the deposition, even if the information elicited might ultimately turn out not to be admissible at a subsequent trial. In assessing the materiality of statements made in a discovery deposition, some account must be taken of the more liberal rules of discovery.

Peoples claimed in their complaint that Holley had "engaged in a course of conduct which constituted fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny within the meaning of 11 U.S.C. § 523(a)(4)."9

The complaint alleges that Holley acted fraudulently with respect to three specific transactions, which it describes in detail, and it also alleges that Holley, as a member of the senior loan committee, approved loans in violation of the applicable "loans to one borrower" rules of state and federal law. The complaint further asserts that Holley violated his fiduciary duty to Peoples by voting on loans to partnerships in which Holley had a financial interest and that he improperly charged personal expenses to Peoples. In addition, the complaint generally alleges as follows:

"31. In December 1983, Holley and Haass established the Senior Loan Committee at Peoples, which Committee consisted solely of Holley, Haass and Joel Daniel and had authority to make and approve loans in excess of $250,000.00 to the exclusion of the Board of Directors. Holley, as Chairman of the Board and a member of the Senior Loan Committee and Haass, as Vice Chairman and fellow member proceeded to: (1) allow loans to be funded without committee approval; and (2) approved many loans without adequate applications, financial statements, appraisals or credit reports all of which were in violation of applicable law, rules and regulations. Among these loans were the White loan and the Corona loan. The actions of Holley as Chairman and as a member of the Senior Loan Committee, resulted in substantial losses to Peoples in excess of $10 million."10

The deposition inquiries respecting the letter of credit are clearly related to the allegations contained in paragraph 31 of the complaint. The letter of credit was issued while Holley was a member of the senior loan committee and it constituted an extension of credit--in substance a loan--to Marcus. It was issued without committee approval and the necessary credit approvals had not been completed in violation of applicable regulations. Moreover, the letter of credit matter had some tendency to show Holley's state of mind and motives in respect to his carrying out his duties at Peoples. See Federal Rules of Evidence 404(b). It is possible that at trial evidence concerning the letter of credit transaction would have been excludable under Federal Rules of Evidence 403, particularly as Peoples ultimately suffered no actual loss therefrom, but inquiries respecting this transaction plainly fell within topics material to Peoples' complaint. See Salinas.

Furthermore, the issuance of the letter of credit in accordance with Holley's instructions was directly relevant to the heart of Peoples' complaint. Virtually every allegation in the complaint directly or indirectly charged Holley with making loans without obtaining the necessary approvals in violation of his fiduciary obligation to Peoples and in violation of applicable state and federal laws. The essence of Holley's apparent theory of defense to the charges in the complaint, as reflected in his deposition testimony, was that his role at Peoples was limited to finding potential borrowers. He repeatedly stated that Daniel was solely responsible for ensuring that proper procedures were followed and that the necessary paperwork was completed. Holley expressly denied that he had ever signed or issued any letter of credit on behalf of Peoples. Thus, any transaction pursuant to which Holley had issued a letter of credit on behalf of Peoples would be relevant, regardless of whether that transaction ultimately resulted in a loss to Peoples. Cf. United States v. Giarratano, 622 F.2d 153 at 156 (5th Cir.1980).

We hold that the materiality of the statements is established.

B. Unanimity.

Holley claims that the district court erred in overruling his timely objection to the failure of the charge to inform the jury that it must be unanimous as to his perjury in at least one particular statement in each count in order to find Holley guilty on that count. See Fed.R.Crim.P. 31(a) (jury verdict must be unanimous); United States v. Gipson, 553 F.2d 453, 456 (5th Cir.1977) (Sixth Amendment requires unanimous verdict in federal criminal trial). The government contends that no specific unanimity instruction was required and that if such an instruction was required, the charge was adequate to protect Holley's right to a unanimous verdict.

As Justice Blackmun recently observed in his separate concurrence in McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 1234, 1237 n. 5, 108 L. Ed. 2d 369 (1990): "[i]n federal criminal prosecutions, where a unanimous verdict is required, the Courts of Appeals are in general agreement that '[u]nanimity ... means more than a conclusory agreement that the defendant has violated the statute in question; there is a requirement of substantial agreement as to the principal factual elements underlying a specified offense.' " (quoting United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983)). See also United States v. Gipson, 553 F.2d 453, 456-459 (5th Cir.1977). We have previously stated that

"[t]he unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged. Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury consensus as to the defendant's course of action is also required." Id. at 457-58.

"In the routine case, a general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction, even where an indictment alleges numerous factual bases for criminal liability." United States v. Beros, 833 F.2d 455, 460 (3d Cir.1987); see United States v. North, 910 F.2d 843, 876 (D.C.Cir.1990); United States v. Duncan, 850 F.2d 1104, 1113 (6th Cir.1988); United States v. Payseno, 782 F.2d 832, 835 (9th Cir.1986). However, such an instruction will be inadequate to protect the defendant's constitutional right to a unanimous verdict where there exists a "genuine risk that the jury is confused or that a conviction may occur as the result of different jurors concluding that a defendant committed different acts." Duncan, 850 F.2d at 1114 (citing Beros, 833 F.2d at 460-62). See Payseno, 782 F.2d at 836-37; United States v. Echeverry, 698 F.2d 375, 376-77, modified on other grounds, 719 F.2d 974 (9th Cir.1983); Gipson, 553 F.2d at 458.

In Gipson, we held that where a jury could find that a defendant was guilty on a single count under multiple theories of liability, a specific unanimity instruction was constitutionally required. 553 F.2d at 459. The defendant in Gipson was charged with the offense of receiving, concealing, storing, harboring, selling and disposing of stolen vehicles in violation of 18 U.S.C. § 2313. The Court found that the offense charged comprised two conceptual groupings or offenses: (1) receiving, concealing, or storing and (2) bartering, selling or disposing. We held that the district court committed reversible error by refusing to give the jury a specific unanimity instruction that it must unanimously agree as to guilt under one conceptual grouping in order to convict the defendant. In North, the D.C. Circuit observed "When a statute criminalizes false statements, for example, each false statement charged in a single count is properly treated as a distinct conceptual grouping; to convict, the jury must unanimously agree upon which one of those statements the defendant made." Id. 910 F.2d at 876. See also Duncan, 850 F.2d at 1110-1113 (where single count charged two separate false statements, jury must be unanimous as to at least one specific statement); Ferris, 719 F.2d at 1407 (Kennedy, J.) (special unanimity instruction appropriate where a single count charges "separate false statements, any one of which is sufficient to convict").

The Supreme Court recently addressed the issues raised by Gipson in Schad v. Arizona, --- U.S. ----, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991). The defendant in Schad was found guilty in an Arizona court of first-degree murder by a unanimous jury verdict and was sentenced to death. The trial court had instructed the jury that it must reach a unanimous verdict that the appellant committed first degree murder, which was defined as premeditated murder or felony murder. The jury was not required to reach a separate verdict with respect to either premeditated murder or felony murder. Appellant challenged his conviction on the grounds of the Sixth, Eighth and Fourteenth Amendments, claiming a constitutional right to a unanimous jury in state capital cases as distinct from cases in which lesser penalties are imposed.

Justice Souter, writing for four justices including himself, authored the Court's opinion. He rejected appellant's Sixth and Eighth Amendment claims on the ground that "petitioner's real challenge is to Arizona's characterization of first-degree murder as a single crime as to which a verdict need not be limited to any one statutory alternative, as against which he argues that premeditated murder and felony murder are separate crimes as to which the jury must return separate verdicts." Id. 111 S.Ct. at 2496. Justice Souter stated the central issue as being whether it was constitutionally permissible to allow a "general verdict predicated on the possibility of combining findings of what can best be described as alternative mental states, the one being premeditation, the other the intent required for murder combined with the commission of an independently culpable felony." Id.

Justice Souter criticized Gipson's conceptual grouping of theories of liability as being too indeterminate and metaphysical. He stated that "[a]lthough the classification of alternatives into 'distinct conceptual groupings' is a way to express judgment about the limits of permissible alternatives, the notion is too indeterminate to provided concrete guidance to courts faced with verdict specificity questions.... In short, the notion of 'distinct conceptual groupings' is simply too conclusory to serve as a real test." Id. 111 S.Ct. at 2498-99.

Justice Souter found that the trial court's instruction was permissible on two grounds. First, he reasoned that while sufficiently distinct requisite mental states might require separate jury verdicts, such verdicts were not required where the mental states "reasonably reflect notions of equivalent blameworthiness or culpability." Id. at 2503. Second, he noted that the equating of the two mental states "as species of the blameworthy state of mind required to prove a single offense of first-degree murder finds substantial historical and contemporary echoes." Id. at 2501.

Justice Scalia, concurring separately, concluded that the Court's historical argument was dispositive of appellant's due process claim. In the absence of historical precedent favoring the state's position, however, Justice Scalia indicated that he likely would have sided with the dissenters on the ground that the reasonableness of equating the different mental states was not itself sufficient to allow only one verdict with respect to premeditated murder and felony murder. Id. at 2505-07. Four justices dissented in Schad.

Holley's case, however, is somewhat different from Schad. In Schad, there was a single killing of one individual, and Justice Souter, stressing that under Arizona law first degree murder was "a single crime," concluded that there was no more need for jury unanimity as to alternative mental states each satisfying the mens rea element of the offense than there was for the jurors to all agree on the precise means employed to cause death. Id. 111 S.Ct. at 2495-97.11 This differs, however, from the situation where a single count as submitted to the jury embraces two or more separate offenses, though each be a violation of the same statute. As Justice Scalia points out in his Schad separate concurrence, "We would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday." Id. at 2507. Holley contends that each count alleges multiple separate false statements, each knowingly made and material, so that each such separate statement is of itself a sufficient basis for violation.

As noted above, Holley's indictment, which was read ("rather hurriedly," the district court said) to the jury by the district court and a copy of which was provided to the jury during its deliberations, includes quoted sections of Holley's deposition. Part or all of four of Holley's responses to questions quoted in count one are underlined. The quoted material is prefaced by the allegation that Holley "knowingly did make false, material declarations which are underlined below, in the course of some of his testimony during the deposition which is set forth below." In the underlined parts of the deposition, Holley generally states that Mary Kam was not an employee of Peoples or of his, that the letter of credit was never issued, that none of his employees signed the letter of credit, that he never personally authorized the signing of the letter of credit and that the letter of credit was not issued by Holley or any Peoples employee.12

Part or all of eleven of Holley's responses to questions quoted in count two are underlined. The underlined deposition testimony is prefaced by the statement that Holley "knowingly did make false, material declarations under oath which are underlined below." In the quoted testimony Holley generally states that a real estate agent for Midway requested a sample letter of credit to ensure that the form of the letter was acceptable and because Midway "had been stung before"; that Holley ordered that a sample letter be sent; and that the real estate agent or someone at the title company or at Midway signed the sample letter of credit after it was sent.13

The indictment in the instant case raises an issue similar to the issue of duplicity addressed by this Court in Bins v. U.S., 331 F.2d 390 (5th Cir.), cert. denied, 379 U.S. 880, 85 S. Ct. 149, 13 L. Ed. 2d 87 (1964). In Bins, the defendant was charged, inter alia, on two counts of making a false statement for the purpose of obtaining a loan from the Federal Housing Administration. Each count alleged the making of a false statement on two separate loan application forms. The Court stated that, for purposes of the requirement that separate offenses joined in the same indictment be stated in separate counts, Fed.R.Crim.P. 8(a), "it is well settled that the test for determining whether several offenses are involved is whether identical evidence will support each of them, and if any dissimilar facts must be proved, there is more than one offense." Id. at 393. We held that "[t]he filing of each false document would constitute a crime, and each should be alleged in a separate and distinct count of the indictment." Id. The Court noted that although such a duplicitous indictment can be cured by a limiting jury instruction, none was issued by the trial court and the Court therefore reversed the defendant's convictions.14

As in Bins, both counts of Holley's indictment allege multiple false statements. The government was required to prove dissimilar facts to show the knowing falsity of each statement. In count one, for example, the government would have had to prove that Holley knew who Mary Kam was in order to prove that he lied about her not being a Peoples employee, and the government would have had to prove that Holley had instructed his secretary to issue the letter of credit in order to prove that he lied about not having personally authorized it.15 The falsity of the statements in count two similarly could be proven only by showing distinct facts and Holley's knowledge of them. We therefore conclude that Holley's indictment is duplicitous with respect to each count and accordingly turn to the district court's unanimity instruction.

The district court instructed the jury that in order "[t]o reach a verdict, all of you must agree. Your verdict must be unanimous on each count of the indictment." The court also instructed the jury as follows:

"For you to find the defendant guilty of this crime, you must be convinced that the Government has proved each of the following beyond a reasonable doubt:

(1) That the testimony was given while the Defendant was under oath in a proceeding before or ancillary to any court of the United States;

(2) That such testimony was false in one or more of the respects charged in such court proceedings; and

(3) That the Defendant knew such testimony was false when the Defendant gave it."

The court made no other reference to a unanimity requirement.

The most reasonable interpretation of the court's instruction quoted above is that each juror was individually required to find at least one statement in each count to have been knowingly false in order to find Holley guilty. The instruction does not, however, require that all of the jurors concur in the knowing falsity of at least one particular statement. Holley specifically objected to the charge because it contained no such requirement. We conclude that there was a reasonable possibility that the jury was not unanimous with respect to at least one statement in each count.16 The district court therefore erred in overruling Holley's objection and a new trial is required.

We find that the deposition testimony that formed the basis of Holley's indictment was material to the proceeding pursuant to which he was deposed. We also find, however, that the district court erred in refusing to instruct the jury that it must agree unanimously as to at least one statement in each count of the indictment in order to find Holley guilty. Accordingly, Holley's conviction and sentence are reversed and the cause is remanded.

REVERSED and REMANDED.