568 U.S. 266 | SCOTUS | 2013
Lead Opinion
delivered the opinion of the Court.
A federal court of appeals normally will not correct a legal error made in criminal trial court proceedings unless the defendant first brought the error to the trial court’s attention. See United States v. Olano, 507 U. S. 725, 731 (1993). But Federal Rule of Criminal Procedure 52(b), creating an exception to the normal rule, says that “[a] plain error that affects substantial rights may be considered even though it was not brought to the [trial] court’s attention.” (Emphasis added.) The Rule does not say explicitly, however, as of just what time the error must be “plain.” Must the lower court ruling
The case before us concerns a District Court’s decision on a substantive legal question that was unsettled at the time the trial court acted, thus foreclosing the possibility that any error could have been “plain” then. Before the case was final and at the time of direct appellate review, however, the question had become settled in the defendant’s favor, making the trial court’s error “plain”—but not until that later time. In our view, as long as the error was plain as of that later time—the time of appellate. review—the error is “plain” within the meaning of the Rule. And the Court of Appeals “may . . . conside[r]” the error even though it was “not brought to the [trial] court’s attention.” Fed. Rule Crim. Proc. 52(b).
I
In early 2010, Armarcion Henderson, the petitioner, pleaded guilty in Federal District Court to a charge of being a felon in possession of a firearm. 646 F. 3d 223, 224 (CA5 2011). The District Judge accepted the plea and, in June 2010, he sentenced Henderson to an above-Guidelines prison term- of 60 months. Ibid. The judge entered the longer sentence to “try to help” Henderson by qualifying him for an in-prison drug rehabilitation program, a program that would provide “the treatment and the counseling that this defendant needs right now.” App. to Pet. for Cert. 35a, 40a.
Henderson’s counsel did not object. Indeed, the judge asked counsel if there was “any reason why that sentence as stated should not be imposed.” Id., at 41a. And counsel replied, “Procedurally, no.” Ibid. Subsequently, Henderson appealed, claiming, among other things, that the District Court had “plainly” erred in sentencing him to an above-Guidelines prison term solely for rehabilitative purposes. 646 F. 3d, at 224.
The appeals court decided that Rule 52(b) did not give it the authority to correct the trial court’s error. 646 F. 3d, at 225. The appellate panel pointed out that, “[b]efore Tapia, there was a circuit split on whether a district court can consider a defendant’s rehabilitative needs to lengthen a sentence.” Ibid. The panel added that the Fifth Circuit had “not pronounced on the question” before Henderson was sentenced. Ibid. Thus, at the time when the District Court reached its decision, the law in that Circuit was unsettled. The Court of Appeals concluded that “Henderson cannot show that the error in his case was plain, . . . because an error is plain only if it was clear under current law at the time of trial.” Ibid, (internal quotation marks omitted).
The Fifth Circuit denied rehearing en banc by a divided vote. 665 F. 3d 160 (2011) (per curiam) (7 to 10). Henderson filed a petition for certiorari. And we granted the petition to resolve differences among the Circuits. Compare, e. g., United States v. Cordery, 656 F. 3d 1103, 1107 (CA10 2011) (time of review), with, e. g., United States v. Mouling, 557 F. 3d 658, 664 (CADC 2009) (time of error).
A
Is the time for determining “plainness” the time when the error is committed, or can an error be “plain” if it is not plain until the time the error is reviewed? The question reflects a conflict between two important, here competing, legal principles. On the one hand, “ ‘[n]o procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘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, 507 U. S., at 731 (quoting Yakus v. United States, 321 U. S. 414, 444 (1944)). This principle favors assessing plainness limited to the time the error was committed.
On the other hand, “[t]he general rule ... is that an appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Housing Authority of Durham, 393 U. S. 268, 281 (1969). See Ziffrin v. United States, 318 U. S. 73, 78 (1943). Indeed, Chief Justice Marshall wrote long ago:
“It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.... In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” United States v. Schooner Peggy, 1 Cranch 103, 110 (1801).
This principle favors assessing plainness at the time of review.
The text of Rule 52(b) does not resolve the problem. It does not say that a court of appeals may consider an “error that was plain”—language that would look to the past. Rather, it simply says that a court of appeals may consider “[a] plain error.” And that language leaves the temporal question open. But see infra, at 279.
Neither does precedent answer the temporal question—at least not directly. Olano is clearly relevant. There, we said that Rule 52(b) authorizes an appeals court to correct a forfeited error only if (1) there is “an error,” (2) the error is “plain,” and (3) the error “affectfs] substantial rights.” 507 U. S., at 732 (internal quotation marks omitted). Pointing out that Rule 52 “is permissive, not mandatory,” id., at 735, we added (4) that “the standard that should guide the exercise of remedial discretion under Rule 52(b)” is whether “the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings/” id., at 736 (quoting United States v. Atkinson, 297 U. S. 157, 160 (1936); brackets in orig
Johnson v. United States, 520 U. S. 461 (1997), is also relevant. We there considered a trial court’s decision that was clearly correct under Circuit law when made but which, by the time of review, had become plainly erroneous due to an intervening authoritative legal decision. We concluded that, “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.” Id., at 468. As in Olano, however, we declined to decide whether that same rule should apply where the law is unsettled at the time of error but plain at the time of review. 520 U. S., at 467-468. As we have said, this is precisely the case now before us.
B
The text, precedents, and background principles do not directly dictate a result here. But prior precedent has helped to shape current law. And that precedent, read in light of those underlying principles, leads us to interpret Rule 52(b)’s phrase “plain error” as applying at the time of review. Given Johnson, a “time of error” interpretation would prove highly, and unfairly, anomalous.
Consider the lay of the post -Johnson legal land: No one doubts that an (unobjected to) error by a trial judge will ordinarily fall within Rule 52(b)’s word “plain” as long as the trial court’s decision was plainly incorrect at the time it was made. E. g., Olano, supra, at 734. That much is common ground. Johnson then adds that, at least in one circumstance, an (unobjected to) error by a trial judge will also fall within Rule 52(b)’s word “plain” even if the judge was not plainly incorrect at the time it was made. That is the circumstance where an error is “plain” even if the trial judge’s
But if the Rule’s words “plain error” cover both (1) trial court decisions that were plainly correct at the time when the judge made the decision and (2) trial court decisions that were plainly mcorrect at the time when the judge made the decision, then why should they not also cover (3) cases in the middle—i. e., where the law at the time of the trial judge’s decision was neither clearly correct nor incorrect, but unsettled?
To hold to the contrary would bring about unjustifiably different treatment of similarly situated individuals. Imagine three virtually identical defendants, each from a different circuit, each sentenced in January to identical long prison terms, and each given those long sentences for the same reason, namely, to obtain rehabilitative treatment. Imagine that none of them raises an objection. In June, the Supreme Court holds this form of sentencing unlawful. And, in December, each of the three different circuits considers the claim that the trial judge’s January-imposed prison term constituted a legal error. Imagine farther that in the first circuit the law in January made the trial court’s decision clearly lawful as of the time when the judge made it; in the second circuit, the law in January made the trial court’s decision clearly unlawful as of the time when the judge made it; and in the third circuit, the law in January was unsettled.
To apply Rule 52(b)’s words “plain error” as of the time of appellate review would treat all three defendants alike. It would permit all three to go on to argue to the appellate
There is no practical ground for making this distinction. To the contrary, to distinguish and treat more harshly cases where a circuit’s law was unclear would simply promote arguments about whether the law of the circuit initially was unclear (rather than clearly settled one way or the other). And these arguments are likely to be particularly difficult to resolve where what is at issue is a matter of legal degree, not kind. To what extent, for example, did a prosecutor’s closing argument go too far down the road of prejudice? A “time of error” interpretation also would require courts of appeals to play a kind of temporal ping-pong, looking at the law that now is to decide whether “error” exists, looking at the law that then was to decide whether the error was “plain,” and looking at the circumstances that now are to decide whether the defendant has satisfied Olano’s third and fourth criteria. Thus, the “time of error” interpretation woüld make the appellate process yet more complex and time consuming.
We recognize, as the Solicitor General points out, that a “time of error” rule, even if confined to instances in which the law is uncertain, would in such cases provide an added incentive to counsel to call the lower court judge’s attention to the matter at a time when that judge could quickly take
That is because counsel normally has other good reasons for calling a trial court’s attention to potential error—for example, it is normally to the advantage of counsel and his client to get the error speedily corrected. And, even where that is not so, counsel cannot rely upon the “plain error” rule to make up for a failure to object at trial. After all, that rule will help only if (1) the law changes in the defendant’s favor, (2) the change comes after trial but before the appeal is decided, (3) the error affected the defendant’s “substantial rights,” and (4) the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano, supra, at 732 (internal quotation marks omitted). If there is a lawyer who would deliberately forgo objection now because he perceives some slightly expanded chance to argue for “plain error” later, we suspect that, like the unicorn, he finds his home in the imagination, not the courtroom.
The upshot is that a “time of review” interpretation furthers the basic Schooner Peggy principle that “an appellate court must apply the law in effect at the time it renders its decision.” Thorpe, 393 U. S., at 281. It works little, if any, practical harm upon the competing administrative principle that insists that counsel call a potential error to the trial court’s attention. And, it is consistent with the basic purpose of Rule 52(b), namely, the creation of a fairness-based exception to the general requirement that an objection be made at trial. See supra, at 271-272.
At the same time, the competing “time of error” rule is out of step with our precedents, creates unfair and anoma
)—I 1—1 1—<
The Solicitor General makes several other important arguments, but they fail to lead us to a different conclusion. First, the Government argues that the purpose of plain-error review is to ensure “the integrity of the [trial] proceedings.” Brief for United States 33-34. In turn, the argument goes, appellate courts should consider only (1) errors that counsel called to the court’s attention and (2) errors that the trial court should have known' about regardless, namely, those that then were plain. Expanding on this theme, one Court of Appeals described plain error as “error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection. When the state of the law is unclear at trial and only becomes clear as a result of later authority, the district court’s error is perforce not plain; we expect district judges to be knowledgeable, not clairvoyant.” United States v. Turman, 122 F. 3d 1167, 1170 (CA9 1997) (citation omitted).
This approach, however, overlooks the way in which the plain-error rule—Rule 52(b)—restricts the appellate court’s authority to correct an error to those errors that would, in fact, seriously affect the fairness, integrity, or public reputation of judicial proceedings. Cf. United States v. Farrell, 672 F. 3d 27, 36-37 (CA1 2012) (considering the issue from this perspective). And the approach runs headlong into Johnson. The error in Johnson was not an error that the District Court should have known about at the time. It was the very opposite: The District Judge should have known that his ruling (at the time he made it) was not error; and perhaps not even clairvoyance could have led him to hold to the contrary. Cf. Khan v. State Oil Co., 93 F. 3d 1358, 1362-
Rather, Johnson makes clear that plain-error review is not a grading system for trial judges. It has broader purposes, including in part allowing courts of appeals better to identify those instances in which the application of a new rule of law to cases on appeal will meet the demands of fairness and judicial integrity. See Johnson, 520 U. S., at 467-468; Olano, 507 U. S., at 732.
Second, the Government fears that our holding will lead to too many claims of “plain error.” Brief for United States 26-28. After all, courts of appeals, not just the Supreme Court, clarify the law through their opinions. When a court of appeals does so, will not all defendants, including many who never objected in the court below, insist that the court of appeals now judge their cases according to the new rule? And will “plain error” in such cases not then disappear, leaving only simple “error” in its stead?
The answer to this claim is that a new rule of law, set forth by an appellate court, cannot automatically lead that court to consider all contrary determinations by trial courts plainly erroneous. Many such new rules, as we have pointed out, concern matters of degree, not kind. And a lower court ruling about such matters (say, the nature of a closing argument), even if now wrong (in light of the new appellate holding), is not necessarily plainly wrong. The Rule’s requirement that an error be “plain” means that lower court decisions that are questionable but not plainly wrong (at time of trial or at time of appeal) fall outside the Rule’s scope.
And there are other reasons for concluding that our holding will not open any “plain error” floodgates. As we have said, the Rule itself contains other screening criteria. The error must have affected the defendant’s substantial rights and it must have seriously affected the fairness, integrity, or public reputation of judicial proceedings. Olano, supra, at 732. When courts apply these latter criteria, the fact that
Finally, the Government points out that Rule 52(b) is written mostly in the past tense. It says that a “plain error .. . may be considered even though it was not brought to the court’s attention.” (Emphasis added.) This use of the past tense, the Government argues, refers to a “plain error” that was not “brought to the court’s attention” back then, when the error occurred. And that linguistic fact, in turn, means that the error must have been plain at that time. Brief for United States 18-22.
Whatever the merits of this textual argument, however, Johnson forecloses it. The error at issue in that case was not even an error, let alone plain, at the time when the defendant might have “brought [it] to the court’s attention.” Nonetheless, we found the error to be “plain error.” We cannot square the Government’s textual argument with our holding in that case.
IV
For these reasons, we conclude that whether a legal question was settled or unsettled at the time of trial, “it is enough that an error be ‘plain’ at the time of appellate consideration” for “[t]he second part of the [four-part] Olano test [to be] satisfied.” Johnson, supra, at 468. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Dissenting Opinion
with whom Justice Thomas and Justice Alito join, dissenting.
When the law was unsettled at the time an error was committed, the error is not “plain” within the meaning of Federal Rule of Criminal Procedure 52(b). To hold otherwise disregards the importance of claim preservation and deprives Rule 52(b)’s plainness limitation of all conceivable purpose.
H-1
The Court begins its analysis by misconceiving our task. We are here, it thinks, in order to resolve a supposed “conflict” between two “competing . . . legal principles,” ante, at 271—the principle that a legal right may be forfeited by the failure to assert it in a timely fashion, and the principle that an appellate court must apply the law in effect at the time of its judgment. To begin with, there is no such conflict. Forfeiture rules establish exceptions to the legal rights that they qualify; like all exceptions they do not “conflict” with what they modify but rather mark out its scope. And second, our task in this case is not the exalted philosophical one of deciding where justice lies. It is presumed (rightly or not) that Congress has taken that into consideration in approving the Rules of Criminal Procedure. Ours, alas, is the more mundane and lawyerly task of deciding whether the Rules of Criminal Procedure make the failure of timely objection an exception to the rule that an appellate court applies the law in effect at the time of its judgment.
Having addressed itself to the wrong question, the Court unsurprisingly gives the wrong answer. The correct answer must be sought in the text of the Federal Rules of Criminal Procedure, beginning with Rule 51(b), which provides: “A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” (Emphasis added.) Surely this means
We move then to Rule 52(b), which says: “A plain error that affects substantial rights may be considered even though it was not brought to the [trial] court’s attention.” The meaning of that is not difficult to grasp. It is an- exception to Rule 51(b)’s rule of forfeiture—an exception that applies only to “plain error.” The question before us is whether plainness means plainness at the time “the [trial] court ruling or order is made or sought” or plainness when the case reaches the Court of Appeals.
The answer to that question seems to me entirely clear. A rudimentary principle of textual interpretation—so commonsensical that it scarcely needs citation—is that if one interpretation of an ambiguous provision causes it to serve a purpose consistent with the entire text, and the other interpretation renders it pointless, the former prevails. Limiting review of forfeited errors to those that were “plain” when the objection should have been made serves a purpose consistent with Rule 51: It permits reviewing courts to correct error where doing so will not thwart the objective of causing objections to be made when they can do some good. Objection is not so much needed when the error ought to be plain to the court and to the prosecution. And the fault in overlooking such an error is not solely the defendant’s, but must be shared equally by the court and the prosecutor. We have affirmed this principle, and have affirmed the proposition that plainness is to be determined at the trial stage, in our prior opinions. “By its terms, recourse may be had to [Rule 52(b)] only on appeal from a trial infected with error so ‘plain’ the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” United States v. Frady, 456 U. S. 152, 163
The Court, on the other hand, is unable to provide any purpose served by a plainness requirement applied when the case reaches the Court of Appeals. Consider two defendants in the same circuit who fail to object to an identical error committed by the trial court under unsettled law. By happenstance, Defendant A’s appeal is considered first. The court of appeals recognizes that there was error, but denies relief because the law was unclear up to the time of the court of appeals’ opinion. Defendant B’s appeal is heard later, and he reaps the benefit of the opinion in Defendant A’s case settling the law in his favor. What possible purpose is served by distinguishing between these two appellants? “The negligence in not raising the error is equivalent regardless of what happens by the time of appeal.” United States v. Escalante-Reyes, 689 F. 3d 415, 429 (CA5 2012) (en banc) (Smith, J., dissenting). Since a plain-error doctrine of this sort cannot possibly induce counsel to make contemporaneous objection, it seemingly has no purpose whatever except to create the above described anomaly.
No, that is not quite true. It does serve the purpose of enabling today’s opinion to say that the plain-error rule has been “preserved,” and has not been entirely converted to a simple-error rule. Of course a simple-error rule—all trial-court mistakes affecting substantial rights can be corrected on appeal—would better serve the Court’s mistaken understanding that the only purpose of Rule 52(b) is fairness, ante, at 276,
II
The Court contends that evaluating plainness at the trial-court level “runs headlong into Johnson [v. United, States, 520 U. S. 461 (1997)].” Ante, at 277. The error there, it points out, “was not an error that the District Court should have known about at the time.” Ibid. Johnson would have been decided the same way at whatever stage the plainness requirement was evaluated, since the Court found that the error did “not meet the final requirement of [United States v.] Olano, [507 U. S. 725 (1993),]” that “the forfeited error ‘seriously affectfe] the fairness, integrity or public reputation of judicial proceedings.’” Johnson v. United States, 520 U. S. 461, 469 (1997) (some internal quotation marks omitted).
The Court wrote in Johnson a circumspect opinion that took pains to exclude from the time-of-appeal method it articulated the case before us now. After agreeing with the petitioner that in the situation before the Court a time-of-trial rule would impede rather than assist fairness and efficiency, the opinion said 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.” 520 U. S., at 468. The limitation of the Court’s opinion is clear. The concerns that justified evaluating plainness at the time of appeal in Johnson cut against such a rule here, where the law was not clear but uncertain at the time of trial. In the difficult and often hectic process of conducting a trial, a judge depends on the parties—“officers of the court”—to flag less-than-obvious issues that might otherwise escape his notice. A prompt claim of error in those circumstances is not futile but eminently useful.
The Court hypothesizes three defendants failing to object at trial to a ruling that later (before the case reaches the
Ill
The Court sees no harm in its evisceration of the contemporaneous-objection rule, disbelieving that a lawyer would “deliberately forgo objection now because he perceives some slightly expanded chance to argue for ‘plain error’ later,” ante, at 276. It is hard to say whether this conclusion springs from a touching faith in the good sportsmanship of criminal defense counsel or an unkind disparagement of their intelligence. Where a criminal case always has been, or has at trial been shown to be, a sure loser with the jury, it makes entire sense to stand silent while the court makes a mistake that may be the basis for undoing the conviction. The happy-happy thought that counsel will not “deliberately forgo objection” is not a delusion that this Court has hitherto indulged, worrying as it has (in an opinion joined by the author of today’s opinion) about counsel’s “ ‘ “sandbagging” ’ the court” by “remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” Puckett v. United States, 556 U. S. 129, 134 (2009). In any event, sandbagging is not the only evil to be feared. What is to be feared even more is a lessening of counsel’s diligent efforts to identify uncertain points of law and bring them (or rather the defendant’s version of them) to the court’s attention, so that error will never occur. It is remarkably naive to disbelieve the proposition that lessening the costs of noncompliance with Rule 51(b) diminishes the incentives to be diligent in objecting. See Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1135 (1986). Meant to apply only in “exceptional circumstances,” United States v. Atkinson, 297 U. S. 157, 160 (1936), Rule 52(b) today has been transformed into an end-run around the consequences of claim forfeiture.
As for the Court’s belief that it is difficult to assess whether error was plain at the time of trial: it is really not that hard. Appellate courts regularly conduct that type of inquiry in other areas of law. For example, in the context of federal habeas corpus review under 28 U. S. C. § 2254(d)(1) relief may not be granted to a state prisoner based on a legal error unless that error was contrary to or an unreasonable application of clearly established federal law as of “ ‘the time the state court rendered] its decision,’” Cullen v. Pinholster, 563 U. S. 171, 182 (2011). Similarly, we determine whether public officials have immunity based on what law was clearly established at the time of their acts. See Harlow v. Fitzgerald, 457 U. S. 800, 818-819 (1982). The Court offers us no reason to believe the inquiry would be any more difficult in this context.
In any event, a time-of-appeal rule for assessing plainness does not eliminate the need to assess plainness. And contrary to the Court’s belief, that need will not arise only
* * *
Today’s opinion converts the “plain error” limitation of Rule 52(b), a limitation designed to induce trial objections that will assist the court, into a limitation designed to serve no conceivable purpose at all. Fair trial will suffer from the ensuing disregard of the now unenforceable contemporaneous-objection rule. I respectfully dissent.
The reality, of course, is that the object of Rule 52(b) is fairness to the extent that is compatible with preservation of the principal objective of the contemporaneous-objection requirement of Rule 51(b). The Court suppresses this limitation by paying lipservice to Olano’s four-prong Rule 52(b) analysis while reducing the plain-error requirement which is part of that analysis to a nullity. See United States v. Olano, 507 U. S. 725
That is why I was able to join the judgment in Johnson, even though I did not join the portion of the opinion addressing the stage at which plainness was to be evaluated. See 520 U. S., at 463, n.
