Whether materiality in mail and wire fraud cases is based on the subjective standard in Gaudin and Escobar or the objective standard in Lindsey

QUESTION PRESENTED Materiality is one of the essential elements of mail and wire fraud. Neder v. United States, 527 U.S. 1, 25 (1999). 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.” United States v. Gaudin, 515 U.S. 506, 509 (1995); Neder, 527 U.S. at 16. Materiality “looks to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.” Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2003 (2016) (“Escobar”). Here, the Ninth Circuit refused to allow evidence of the behavior of decisionmaking lenders based on United States v. Lindsey, 850 F.3d 1009, 1012 (9" Cir. 2017). Lindsey was predicated on the Circuit’s application of an objective standard to materiality determinations. The circuits are split on which standard applies. The question presented is: In mail and wire fraud cases, is materiality based on the subjective standard in Gaudin and Escobar or the objective standard in Lindsey? i