Michael Peck v. United States

unruly оverawing customer use tential in advance been identified had persons who short, confronting a rival dealer. posses- dealers, in their had crack crack to the defendants weapon be attributed could completed a sale just sion and was and, that rifle coupled with evidence evi- no direct was of crack. There police convict. enough to unregistered, this was all. powder sales dence 5861(d), and 5871. §§ See U.S.C. certainly have tak- could The district to con- also used The de- same evidence was matter. The of the view en a different carry” on the “use or co- bags powder vict the defendants have three fendants 924(c)(1). this § As to thеy might both under U.S.C. caine, suggesting that count, theory, and the And, government’s govern- while the of business. lines instructions, pre-Bailey on our the amount were based the smallness pointed to ment broadly “use” more kind defined of this decisions which conflicting inferences powder, government The permissible. trier than is now weighed are matters that already stipulated have point: it was and defendants precisely fact. But must be judg- defendants the convictions of both make these the district court for Bailey, together mistake, with reversed under we a clear absent ments and imposed on mandatory sentence consecutive to intervene. no warrant agree. count. this We III. I- on and counts convictions sentences The affirmed, convictions III and V are claims other make several The defendants reversed, on count IV is sentences Velas- discussion. require no detailed district court matter remanded inadequate was says that the evidence quez this decision. proceedings consistent remain- any of the convictions support same makes the Sepulveda counts It is so ordered. already re- V. The as to count claim ample there plain it make counted on the defendants to convict both

evidence waste counts, going are not and we

drug issue.

time on this weapon, as to the evidence Plaintiff-Appellant, PECK, Michael counts, gun two underpinned the which sufficient. was also recounted but police found apartment, Inside the America, STATES UNITED the butt ceiling through which opening Defendant-Appellee. gun proved gun could seen. 94-2444. Docket No. sawed-off rifle. fully operational abe length arm’s was within an location Appeals, United States through the sale window barricaded Circuit. Second detective, the butt made to the had been of aver easily by someone be reached 27, 1996. Dec. apartment standing inside age height the window. NEWMAN, Judge, Before: vacant circumstances — the Given WALKER, MINER, WINTER, KEARSE, sale, additional apartment, the actual leval, Jacobs, McLaughlin, by Sepulveda drugs carried — a PARKER, CABRANES, CALABRESI, apartment easily infer that

jury could Judges. Circuit and Velas Sepulveda used the base place From the drugs. their quez to retail PER CURIAM: reason also be weapon, it could ment of appeal this to rehear voted kept The Court defendants ably inferred the harmless available, po- banc consider there, positioned well 1320 applicable on review of a collateral attack is claimed to requires be harmless consider- upon a conviction obtained after a jury ation of two distinct issues: what standard charge that, in conformity with then prevail in determining whether an law, see United States v. Caming, 968 error harmless, and how certain amust 232, (2d F.2d Cir.1992), did not in an error is under the clude aspect of thе mental necessary state applicable standard, before it leave a conviction, aspect subsequently re conviction undisturbed. these issues quired, States, see United 510 U.S. Ratzlafv. distinct, are logically courts have always 135, 148, 655, 663, 114 S.Ct. 126 L.Ed.2d 615 considered separately. them Prior to Cali- (1994). Supreme having Court clarified v, Roy, Supreme three Court decisions ‍‌‌​​​‌‌​​‌​​​​​​‌​​‌‌‌‌‌‌​‌‌​​‌‌​​‌​‌​‌​​​​​‌​​‌‍fornia harmless error analysis in v. California had established the basic framework for con- - U.S.-, 337, 117 S.Ct. 136 L.Ed.2d 266 sidering claims that a constitutional error (1996), bane court dissolves itself was harmless. appeal

leaves the for reconsideration original panel fight Roy. Chapman In California, 18, 386 U.S. 87 824, S.Ct. 17 (1967), L.Ed.2d 705 the Su NEWMAN, JON 0. Judge, preme Court both considered thе issues of concurring: the standard of harmlessness and degree of certainty required. standard, As to the I concur in the decision of the in banc the Court said question is whether the Court to dissolve and return this appeal to verdict,” “contribute[d] to 24, id. at panel for further fight consideration in 828, 87 at S.Ct. adopting the standard it had Supreme Court’s recent decision in Cali previously enunciated in Fahy v. Connecti v. Roy, U.S. -, 337, 117 fornia S.Ct. cut, 85, 86-87, 375 U.S. 229, 230-31, 84 S.Ct. (1996), 136 L.Ed.2d 266 but add these views (1963). 11 L.Ed.2d 171 in an As degree identify effort to and illuminate uncer- certainty, Chapman tainties that ruled that prosecu have been created way tion bore a explicated Court burden of proving has its recent that the error harmless jurisprudence “beyond the context reasonable doubt.” of constitutional Chapman, errors. 24, 386 U.S. at 87 S.Ct. at 828.1 In Abrahamson, Brecht v. 619, 507 U.S.

I. Harmless Error Jurisprudence Before 1710, 113 S.Ct. 123 (1993), L.Ed.2d 353 California Court ruled that for “constitutional error of Formulating an approach for deciding type,” the trial 638, at id. 1722, 113 S.Ct. criminal cases in which a constitutional error the Chapman applies only test to direct re- Fahy, where the error concerned admission of conclusory terms of illegally evidence, ‍‌‌​​​‌‌​​‌​​​​​​‌​​‌‌‌‌‌‌​‌‌​​‌‌​​‌​‌​‌​​​​​‌​​‌‍seized had used a formulation "harmless,” whether the error was without re combined degree and the peating the articulation of the Chap standard in certainty required: "The is whether man — whether the error "contribute[d] to the there is a complained possibility reasonable that the evidence See, Clark, e.g., verdict.” 570, Rose v. 478 U.S. might have contributed to the 576, 3101, 3105, 92 L.Ed.2d 460 conviction.” 375 U.S. 84 S.Ct. at 230. (1986); Harrington California, 250, 395 U.S. Chapman, In the Court stated that its formula- 251, 1726, 1727, 23 L.Ed.2d 284 virtually tion was the same as Fahy: that used in However, when the Court later revised the little, harm- "There is any, difference between our less error standard for collateral attacks in Fahy statement in v. Connecticut about ‘whether Abrahamson, 619, Brecht v. 507 there is complained possibility reasonable that the evidence 1710, (1993), might contributed to careful note Chapman requiring conviction’ and beneficiary articulated of a both a stan- prove constitutional error dard of beyоnd degree harmlessness and a certainty. doubt that complained Id. not con- S.Ct. at (describing Chap tribute to the verdict obtained.” 386 man issue as whether "there is "reasonable ’ 87 S.Ct. at 828. possibility” that trial error contributed to the cases, subsequent verdict”) quot- (quoting Chapman, 386 U.S. at degree ed language Chap- from (quoting Fahy, 375 U.S. at man, "beyond doubt,” a reasonable 230)). and stated S.Ct. at equipoise” on the is- “in judge feels virtual stan attack collateral that on view sue.3 Id. Kottea error, from drawn for harmless dard States, kos v. United Chapman Brecht/ In addition to (1946), is “whether 90 L.Ed. approaches to harmless O’Neal injurious effect ‘had substantial approach a third introduced jury’s ver the determining influence 2419, 263, 109 S.Ct. California, 491 U.S. ”2 Brecht, 637, 113 at S.Ct. at 507 dict.’ (1989). Carella, which also L.Ed.2d 218 105 Kotteakos, 66 at 328 U.S. (quoting review, concerned collateral involved 1253). ar precisely Brecht at S.Ct. jurors of two man- the charge that informed reviewing certainty a degree of the ticulate in a criminal datory presumptions applicable the determining whether must court have charge. objection to the no There was case.4 injurious effect and of “substantial ruled that the Supreme Court met, opinion the but had or influence” erroneous, reversed constitutionally and a reasonable “beyond that the makes clear of whether consideration remanded for Chapman being re of formulation doubt” would harmless. the error was at 1721-22. Id. at jected. ruled, harmless, if “no majority opinion the predicate find the acts McAninch, 115 rational 513 U.S. In O’Neal fail to find but (1995), [underlying presumption] the the Court S.Ct. Id. at at presumed.” fact the certainty a review- degree of the determined separately, wrote Sealia 2421. to in order conclude must have ing court Justices, to make other in a habeas himself three raised a constitutional analysis appli- “that the harmless-error the clear petition, was harmless corpus mandatory conclusive assessing a cable A six-member Brecht standard. typical form wholly unlike the “grave is in reviewing court if ruled that the (Sealia, J., analysis.” Id. with whom such of the error is as to whether doubt” Blackmun, JJ., join, Marshall, Brennan, ——, Id. petitioner wins. the habeas “usual judgment). In the concurring in by the explained that 994. S.Ct. wrote, inquiry is whether case,” the of he where the issue it meant “grave doubt” requires a of evidence admission evenly balanced” erroneous “so harmlessness is Though the (ellipsis original). as formulated arguable the standards 2. It is proof formally assigned a of (did burden was not error "contribute” state Chapman the (did harmlessness, verdict?) the nonethe- in Brecht the state formulated the issue of injurious equi- effect or a substantial the is in "ha[ve] where issue loses in a case less verdict?) semantic have reviewing judge. on the more influence” poise in the mind Nevertheless, the difference. substantive than to enunci- a clear intent evidences charged as follows: the trial court 4.The prosecution that is easier for the ate a standard Chapman. by Respecting Fraud: "Presumption forth in Theft standard set to meet than the easier, prosecution's presumed how- task if makes theft fraud is What the "Intent commit ever, lowering the do personal more to the or rented who leased one persuasion than lessen- of prosecution's burden pursuant written con- to a property of another As Justice as to harmlessness. the standard personal property to its the tract fails to return end, noted, way we "In Stevens has days owner has after owner within impor- far less governing phrase the registered or certified made written demand judgment with which quality than the tant expiration or following of the lease mail Brecht, applied.” 507 U.S. it is property so agreement for return rental J., (Stevens, concurring). or rented.” leased Respecting Embezzlement "Presumption being in of an issue the invocation Vehicle: or Rented Leased Court was might suggest that "equipoise” rent- any person who has leased "Whenever burden side bears the which intentionally fails to wilfully and vehicle ed a i.e., non-persuasion, Jus risk of proof, bears days five its owner within return vehicle "conceptually Breyer that it was explained tice expired, agreement has rental after the lease or I, directly, 'Do judge ask clearer for presumed to have embez- person shall substantially influ judge, think that zled the vehicle.” judge to jury's than decision?’ enced the at 2420. See proof put in terms try the same 1988); (West 484(b) Cal. § Code Cal.Penal Ann. party has borne (e.g., I believe burdens ‘Do 1987). (West § ?’)." Ann. Veh.Code showing ... Id. its burden reviewing conviction, reverse could fail fact; to find presumed court considers the trial record as a so, whole to injurious there was no effect supported decide “whether the fact by the verdict. improperly admitted evidence The initial uncertainty аrising from the overwhelmingly event established other articulation standards, these differing es evidence.” Id. But awith pre pecially the two approaches applicable sumption, to col continued, a reviewing court (Brecht/O’Neal lateral review may not guess its own Carel make from the record ),6 la/O’Neal types as whole as errors to whether a properly instruct approaches these applied. ed presumed would have found Some clari fact. Instead, fication as to scope task for the court is to Brecht/O’Neal approach predicate begun emerge whether “the when relied upon instruction, in the or other decided facts neces Arizona v. Fulmi sarily nante, jury, 279, found are 499 closely 1246, so U.S. relat 111 S.Ct. 113 ed to (1991). presumed ultimate fact ‍‌‌​​​‌‌​​‌​​​​​​‌​​‌‌‌‌‌‌​‌‌​​‌‌​​‌​‌​‌​​​​​‌​​‌‍to be L.Ed.2d 302 The issue was whether jury no rational could find those facts without harmless error of any sort to finding also 271, ultimate fact.” Id. at the erroneous admission of a coerced confes- 109 S.Ct. at 2423-24. words, In other sion. A majority five-member held that it analysis concerns not what a properly in 302, did. Id. at 111 S.Ct. at (part 1260 II of jury found, structed would have but what the opinion of Rehnquist, C.J., with whom O’Con- jury actually found. In Justice Scalia’s nor, Scalia, Kennedy, Souter, JJ., and join). terms, whenever the test he enunciated is The Chief Justice drew a distinction between met, findings jurors did make “is error,” “trial which described as “error functionally equivalent finding the element which occurred during presentation presumed.” Id.5 the case jury,” to the 307, id. at 111 S.Ct. at 1263, defects,” approach Carella, The Court’s “structural which especially he de- scribed explicated as a in Justice defect “affecting Scalia’s the framework can within be viewed proceeds, as either the trial a third standard for rather than determining simply an harmless error process error or in the trial a different itself.” 310, way of Id. at 111 whether the S.Ct. at errors,” Brecht stan- 1265. “Trial majority ruled, dard of harmlessness has been met. If were subject a to harmless analysis; considers error Carella to set forth a stan- “structural not, defеcts” were dard, it would ask concludes, they whether it since “defy analysis by ‘harmless-error’ examination of the jury find, 309, facts the did standards.” Id. at 111 S.Ct. at 1265. that no jury reasonable could fail As to find the illustrations of defects,” “structural presumed fact. If a court considers Carella Justice cited cases involving de “total to set forth a way privation different of meeting the right counsel,” (citing id. standard, it would ask whether Gideon v. Wainwright, 335, 372 U.S. 83 S.Ct. erroneous 792, inju- substantial and 9 (1963)), L.Ed.2d 799 judge “a who was rious effect or verdict, influence on the impartial,” and it (citing id. Turney Ohio, v. 273 would answer by inquiring 510, 437, 47 S.Ct. 71 (1927)), L.Ed. 749 concludes, whether it upon examination of “unlawful exclusion of members of the defen the facts jury find, did that no reasonable dant’s race grаnd from jury,” 310, id. at 5. The standards articulated majority tainty court must have to conclude concurring opinions appear in Carella to be sub- that an error is harmless Carella stan stantially similar. Both jury focus on what the However, dard. since the Carella standard was found, actually prediction not on a of what a formulated in attack, the context of a collateral properly jury instructed would have found. The likely .seems that the Court would want de majority predicate scrutinizes the facts relied on gree as formulated in apply O’Neal to instruction. The concurrence broad- case to which the ap Carella standard ens inquiry include not those fаcts but plied. Justice point Scalia made explicit this also other necessarily facts jury. found - concurring his opinion in v. California 6. Neither U.S. -, -, 337, 339, nor the concurrence in 117 S.Ct. explicitly degree 266, considered of cer- 271

1323 find predicate facts Hillery, ine (citing Vasquez 1265 111 S.Ct. apply the 617, 598 order to L.Ed.2d 254, 88 106 S.Ct. 474 U.S. are so those facts id. the conviction uphold self-representation,” (1986)), right “the 168, that no fact presumed closely 465 U.S. Wiggins, related (citing McKaskle 8, 944, n. without former find the jury could 177-78, n. rational right public (1984)), “the finding latter. L.Ed.2d Georgia, Sullivan, however, (citing trial,” Waller id. 2082-83. n. charged as to n. improperly where (1984)). doubt, L.Ed.2d have consti- no so to found, object, “is no there tutionally out- errors taxonomy of cоnstitutional scrutiny which harmless place speak, upon likely to appeared in Fulminante lined Id. at operate.” all, jury instruc- can errors in most, perhaps im- errors, therefore It was original). type” category of “trial into the tions analy- upon what verdict speculate harmless proper form of to which re- would it uncertain but left instructed apply, properly would sis applicable approach the same turned. apply rulings would evidentiary to erroneous about concluding his discussion After charges. errors to constitutional fact-finding that could any jury absence this uncertain- not resolve did itself analysis of harmless a Carella support еven prose- the error there ty, the since what he error, then turned to Sealia Justice post- of the defendant’s use improper cutor’s analysis.” Id. at “[ajnother mode called purposes, impeachment silence Miranda para- one brief Fulminante, relat- error, in like an reason- erroneous the categorized graph, he ing to evidence. error,” a “structural instruction doubt able in Brecht, ruled the Court after weeks Six harmless renders Fulminante as to which 275, 113 Louisiana, Sullivan analysis inapplicable. error (1993), sug jury concurring instruction in a of error Justice’s type one The Chief least form subject to error, constitutionally deficient not even gested а “structural” was The issue analysis. sub might be error harmless instruction doubt reasonable constitutionally instruc- deficient ultimate analysis, but whether harmless error ject to be harmless could doubt on reasonable it was not. tion agreed with the ly it ruled that A unanimous error. contrasted Justice Notably, the Chief Sealia, author not. Justice could in Sul instruction doubt defective opin- the Court’s wrote Carella in presumption the conclusive livan with joined. Justices ion, all the in which subject to Carella, struction Brecht, wrote Justice, the author 284, 113 analysis. U.S. at error harmless concurring opinion. separate at 2084. ruling with his supported Sealia Justice type one at least clear that made Sullivan first built analysis. The modes two charge was jury in a constitutional he had As opinion Carella. concurring his analysis. error any harmless subject to concerning pre- charge error jury said however, other resolve, whether did not It ruled Carella, Sealia Justice sumptions in not amenable were also errors instruction concerning rea- charge error jury instruc- analysis, nor whether error harmless as- not be in Sullivan doubt sonable harmless amenable that were tion errors anal- error harmless traditional sessed to be assessed analysis were error of the entire i.e., on the basis ‍‌‌​​​‌‌​​‌​​​​​​‌​​‌‌‌‌‌‌​‌‌​​‌‌​​‌​‌​‌​​​​​‌​​‌‍inquiring ysis, prop- awhat a whole record as found jury would have what record found jury would еrly instructed noted, Sullivan, he the error. absence examining facts what (Brecht) byor analy- for harmless case a weaker whether to determine find order said he At least than Carella. sis equivalent” “functionally were found could exam- Sullivan, (Carella incorrectly the element charged con- People Beeman, Cal.3d currence). Cal.Rptr. 60, 68, 674 P.2d However, the four objection Since concurring in no charge on intent Carella had left no trial, doubt that in their view made at the which occurred approach applied by Beeman, before the Court in decision in the issue for explicated by the federal concurrence habeas court shоuld be was whether the judge’s trial charge beyond errors failure to charge those that an aider concerning must presumptions. help conclusive intend to his confederate was issue, harmless. Sealia said that That applies his only bears repeating, comprehended (a) two subsidiary instructions but issues: also to an what standard instruction does a containing federal habeas court “misde- apply in scription of an offense”; element of both, whether error of this said, (b) “deprive[ sort jury- ] the how of its sure must factfinding role, federal habeas court analyzed and must be be that similarly.” Car ella, harmless before it deny 491 U.S. at habeas relief. S.Ct. at 2423. Presumably, Justice Sealia would apply his A of the Ninth Circuit in banc analysis to an instruction that omitted court ruled that appropriate offense, element of an a circumstance that was that set forth plurali- four-Justice “deprives also of its factfinding ty opinion in Carella. In the Ninth Circuit’s role.” view, “the [of omission intent instruction] is if review of the The uncertainties as to facts found establishes that errors concerning an omission or a jury necessarily found the omitted element.” misdescription of an element were “trial Gomez, Roy v. 81 F.3d at type” subject errors to harmless analy- original). Following the Carella so, concur- and, sis if whether at least some of these rence, which had concerned harmless error were analyzed errors ap- the analysis in the context of presumption, the proach of the Carella concurrence remained Ninth Circuit “treated the omitted element until the decision in Roy. California ‘presumed as the fact’ and considered wheth- er a rational II. Roy found the re- California maining elements the offense without also Against this background, Supreme the finding the omitted element.” Id. at 866. — Court decided v. Roy, California The Ninth Circuit -, also noted that the error 136 L.Ed.2d 266 in the charge could be Roy as concerned described a federal collateral attack either the element, omission of an upon a state which thе court conviction for first-degree Court “specific intent,” labeled or the robbery. murder and misde- prosecution’s The the- scription of element, an ory, which the to the extent Court viable in light of jury’s the labeled “intent.” verdict, Id. at 867 n. 4. Roy Gomez, see Whether 81 F.3d 864- considered (9th an Cir.1996) omission (in or a misdescription, banc), was that Roy had the obliged Court felt helped apply analysis his confederate commit robbery and concurrence, id., Carella thereby since aided commission felony of a mur- Sealia had written that “misdescription der. The of an charge required for aiding an element of the offense ... deprives and abetting conviction knowledge of the rоle, its factfinding and must analyzed confederate’s purpose unlawful ac- similarly [to a tion aid conclusive presumption].” commission of the crime. Id. at Carella, 491 U.S. at Roy’s trial, After S.Ct. at 2423. the California Su- preme Court ruled that an aiding and abet- Supreme The Court reversed and ruled ting instruction not find that standard, the Brecht not the standard of (a) only knowledge of the confederate’s un- Carella applied to determi- (b) lawful purpose and action assist its nation the harmlessness error in the accomplishment, (c) but also intent to Roy jury encour- charge. Court’s brief age or facilitate the purpose. unlawful per See opinion curiam first that noted the Car- (inability to Chapman standard find gent of several out the views “set concurrence ella beyond a reasonable the error “harmless way to determine proper about the doubt”) to the error this case applies use of a respect to the an error whether ” appeal, presented, not on direct when it is ‘harmless.’ was corpus grounds for habeas relief. then but at -, at 338.7 apply not that more The Ninth Circuit did that, Kotteakos stan after noted standard, and I therefore con- “trial appropriate for deferential held dard had been Brecht). The con cur in the remand. (citing Id. errors.” Roy was a trial that opinion, cluded I howev- do understand error, subject to the Brecht er, of what consti- to address at 339. Id. harmlessness. to which this more tutes the harmlessness noted, agreement The Court standard is deferential —and Circuit, jury charge error Ninth quite point Ninth Circuit was cor- an omission as either characterized could be rect. element labeled misdescription of an or a (Scalia, J., -, Id. at “an error instruction the error as concurring). Id. the crime.” defined Thus, Ginsburg for Justices Scalia Roy was per curiam uncertain Left Roy Supreme Court’s reversal that “de in instructions all errors degree only the subject Brecht crime” are fine[ ] to whether the error was court must have as standard, applies that standard or whether nоt even “address” harmless and did fairly narrow only that concern to errors assessing harmlessness when standard for charge language. proper departures from misdescribes) (or an jury charge ele- omits the ele charge in had omitted characterization of of an This ment offense. omitted altogether, but had ment intent surprising in view of the Roy is somewhat misdescribed) (or re aspect opinion, which the in banc Ninth Circuit’s aspect that was state — and quired mental rejected. That Supreme Court ingredients somewhat similar (a) ap- Chapman explicitly noted that correctly were stated. applicable on collateral re- proach was not Roy per (b) from view, seem clear the correct standard What stated curiam, however, er- (whether inju- had substantial concurrence ror or influence rious effect perhaps (c) ex- primarily verdict), relegated at least stated how sure jury’s O’Neal that con- jury charge errors clusively to must be that the Brecht reviewing court (d) But presumptions. met, even cerned Carella conclusion, perhaps entire of anal- the correct mode concurrence stated curiam, placed Roy per meaning of the of the assessing the harmlessness ysis for concurring opin- jury charge. in doubt from a considerable of an element omission for Gomez, Sсalia Roy, written Justice at 868. The Ninth Roy ion in 81 F.3d Ginsburg. standards of himself and Justice had thus combined Circuit concurrence, and in- Carella Brecht and the began by stating both what Justice Scalia of O’Neal. test voked to have decided the Court he understood ap- been decided. Roy had not per understood curiam’s what he Undaunted concurrence relegation the Carella parent He wrote: — eases, at Roy, see in its what the Court decides agree I with -, Scalia stated the Brecht- opinion: per curiam in that forth concur- set convic- reversal of the O’Neal standard because, as Roy applied rence to the harmlessness (“grave tion doubt as a jury not rendered ver- error”) than the more strin- rather any jury analysis for proper precise concerned in Carella issue deprived jury of its charge factfind- error that set in Justice presumption, the "views” forth role, including misdescription an element. explicitly concurrence Scalia’s diet on element of the each crime.8 There ness of “error in the instruction that continued, speculation, he crime,” not be as to Roy, at -, defined the jury what a instructed properly would have is also to be assessed under Instead, present found. error in “[t]he the Brecht In standard. charge only can if jury ease be harmless verdict obliged aspect to find one оf mens points effectively on other rea, embraces this one knowledge of purpose, the confederate’s uncharged aspect [the (or intent] or it is misdescribed) but omitted aspect, another evidence, impossible, upon the to have found intent to aid. What if the had omit what finding the verdict did find without this ted an altogether? May element the review point at -, as well.” Id. ing court examine predict the evidence and in original) (citing the properly that a instructed would have concurrence). concurred, He beyond found the element a reasonable said, “so that Ninth Circuit deter If analysis may doubt? such an be made ‘grave mine whether there is doubt’ that this (one where an entire element is omitted (what so, did) is than rather even related to what was included impossible whether it is to ‘be certain’ that charge), is it applicable only to technical ele this is so.” Id. 340 ments such as FDIC insurance a bank Gomez, (citing 867). Roy v. F.3d robbery case or interstate commerce case, RICO applicable or it also to omis III. Resulting Uncertainties sion of an element like mens rea? concurrence, the absence of the Roy I A uncertainty, further inherent in most thought Roy would have per curiam considering cases claims of harmless required the Brecht harmless- reviewing whether the court is to consider ness, rather than the standard of the Carella the effect of the error on the predict jury charge what verdict would have been rendered in Roy. error in Roy Even concur- the absence Harry of the error. See T. rence, strong argument there is-a that this is Edwards, Human, To Err Is But Not Al- joined the view of the seven Justices who. the ways Harmless: When Legal Should Error Roy per opinion. curiam when But Tolerated?, Be (1995) 70 N.Y.U.L.Rev. 1167 Ginsburg Scalia and state that the Court has (Madison Lecture). Scalia, For Justice proper even addressed the standard and those cases in which the Carella standard is only has decided how sure the i.e., applicable, where the has not made court must be that the standard has been finding, the answer is clear: the (O’Neal met Chapman), rather than I am reviewing court should consider the effect of left in uncertainty. the error and examine the facts that the Even if has decided that the found. agree Whether other Justices standard applies to the charge error in that somewhat doubtful. Where the Carella stan- case, uncertainty a further would remain. It dard is not applicable, it likely seems would not be clear whether the Brecht stan- most Justices willing would be predict dard is applicable because the words what verdict would have been rendered in omitted jury charge from the closely are so error, i.e., the absence of the consider how included, related to the words that were strong as guilt the evidence of that was they Roy, were in or whether harmless- by unaffected the error.9 8. explained: Justice Scalia 9. approaches conceptually these are dis tinct, juryA appear and on guilty [the verdict occasion defendant] is of to affect an out means, come, course, Fulminante, compare the crime of a verdict that he is guilty necessary White, (opinion J., each 111 S.Ct. at of the element crime. for least, Formally, (admission majority) such a five-member verdict not exist of coerced here: was never asked to confession not shown not to have contributed to Roy verdict) purpose had the "intent or of commit- id. 111 S.Ct. at 1266 ting, encouraging, facilitating” J., (opinion Rehnquist, his confeder- C for four-member dis sent) (admission ate’s crime. of coerced confession harmless - U.S. at -, Roy, overwhelming in view guilt), they evidence of original) (citations omitted). merge practice often tend to because the explore pending appeal in banc to by Roy uncertainty created principal differing to the hopefully views as heightened resolve (which is applicable) is that were well articu- harmlessness opinion does per curiam by the fact dissenting by panel lated reject the anal with and reckon explicitly Statеs, F.3d opinions. See Peck United opinion forth set per curiam ysis of the (2d Cir.1995) (majority opinion Judge recognize Ginsburg. I . Scalia (dissenting opinion of Mahoney); id. at 1229 opinion for a principal writing the that those Walker). Roy has been Judge Now respond obliged to court are multi-judge decided, appropriate return the mat- in an expressed everything ‍‌‌​​​‌‌​​‌​​​​​​‌​​‌‌‌‌‌‌​‌‌​​‌‌​​‌​‌​‌​​​​​‌​​‌‍panel for fresh consideration ter court, in dis of the other members likelihood, light Roy. In all appeal in surely cannot we or in sent dispose appeal panel be able to will to re decision Supreme Court expect one any issue that will eliminate in a manner. presents. the case than more issues solve not, rehearing. If the in warranting in banc Nevertheless, presents a where situation ulti- may be reconvened. The banc Court principal least the of at a clear resolution solution, however, Supreme is for the mate per curiam uncertainty created articulate, authoritatively and un- Ha- warranted. concurring opinions seems analysis ambiguously, applicable the mode of convic challenges to corpus state beas jury instruc- corpus on habeas review when litigated among frequently most are tions error. assessed for harmless tion errors are federal district courts matters assessment of harm appeals, and courts of single most recur probably the

lessness cases. On such

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a vital matter constitu analysis whether a CO., INC., Plaintiff-Appellee, EVVTEX ought not to be tional error we tension between unresolved left with the concurrence. See Jo

Roy per curiam and LIM HARTLEY COOPER ASSOCIATES Goldstein, Intelligible seph Constitution: Hartley Cooper Limit ITED and Gibbs Obligation to Maintain Court’s Defendants-Appellants, ed, Something People We the the Constitution (1992); Lloyd’s London, passim Understand id. sub Can Underwriters develop Lloyd’s of com (urging scribing Court to “canons Block Pol Jewelers’ Possibly ZJB9012467-351, clarification icy prehensibility”). No. Defendant. future. forthcoming the near might 96-7244. No. Docket Johnson, F.3d 429 States See United Cir.1996) (table), (11th granted, Appeals, cert. Court of States Unitеd (1996) -, Second Circuit. of federal convic- (raising, direct review Argued Sept. 1996. tion, plain concerning issues Decided Dec. materiality applied where element jury). not submitted was con- benefit of there

Without the justification our to rehear

siderable way giving to an guilt), factor to weight the untainted evidence one upon the ver effect effect of he considered focuses Edwards, supra, O’Neal, jury. dict, See like cases as illustrated Judge believes at 1187. Edwards N.Y.U.L.Rev. (reviewing must “ application "guilt-based” judg the error affected the ‘determine doctrine, Harring by cases like illustrated error ton v. ") Traynor, (quoting The Riddle R. ment' 250, 254, California, Edwards, (1970)). supra, See Error 26 Harmless (1969) (error harm 23 L.Ed.2d of at 1199-1203. 70 N.Y.U.L.Rev. overwhelming evidence untainted less in view

Case Details

Case Name: Michael Peck v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 27, 1996

Citation: 102 F.3d 1319

Docket Number: 1021, Docket 94-2444

Court Abbreviation: 2d Cir.