UNITED STATES of America, Plaintiff-Appellee, v. Louise Han PEREZ; Joseph Eclavea Perez; John Velasco Cruz, Defendants-Appellants

Appellees’ court denied The district first summary judgment, finding

motions for regarding

triable issues remained whether qualified

the Park for the “55 or older” ex-

emption. subsequently The district court

granted summary judgment ap- based on its

plication regulations. Since those

regulations apply Appellants’ do not

claims, summary judgment in reliance on inappropriate.

them was

Also, both sides submitted considera support opposition

ble evidence of or Seott/Crilley motions. We have reviewed genuine

all of the evidence and conclude that

issues of material fact remain whether the

Park “significant satisfied the facilities and requirement regula

services” under the 1989

tions and whether the Park met the 80%

requirement by ensuring that at least 80% of occupant

new residents included at least one

age 55 or older. therefore We reverse the summary judgment

district court’s orders trial. remand for AND REMANDED.

REVERSED America,

UNITED STATES of

Plaintiff-Appellee, PEREZ; Joseph

Louise Han Eclavea

Perez; Cruz, John Velasco

Defendants-Appellants.

Nos. 94-10314 and 94-10400.* Appeals,

United States Court of

Ninth Circuit.

Argued May and Submitted 1996.

Decided June

* ing. Counsel for defendant Louise Han No. 94- participate did not in the en banc hear- HUG, BROWNING, Judge,

Before: Chief FLETCHER, PREGERSON, JOHN T. NOONAN, THOMPSON, LEAVY, TROTT, NELSON, T.G. KLEINFELD and TASHIMA, Judges. Circuit TASHIMA; Opinion by Judge Concurrence by Judge KLEINFELD.

TASHIMA, Judge: Circuit today viability The issue we resolve is the of this circuit’s “invited error” doctrine fol- lowing Supreme Court’s decision in Unit- Olano, ed States v. 507 U.S. (1993). 123 L.Ed.2d 508 The three-

judge panel (“panel”) suggested that Olano doctrine, overruled that least the con- jury text of specifically request- instructions Perez, ed the defendant. United States v. (9th Cir.1995). 1385 n. 13 On review, en banc we conclude that lim- Olano application its our of the invited error doc- waived, trine op- to those deemed posed forfeited, is, merely “known right[s]” “intentionally] that have been relin- quish[ed] or abandon[ed].” See (defining S.Ct. waiv- er). us, In the case before we conclude that Harstock, Robert E. Assistant Federal defendants-appellants Joseph E. Perez Defender, Guam, Mongmong, Public for de- (“Perez”)1 (“Cruz”) and John V. Cruz did not

fendant-appellant, Joseph E. Perez. proper jury waive the instructions under 18 Trapp, Trapp Incorporat- Howard Howard 924(c)(1), § using U.S.C. carrying a fire- ed, Guam, ‍​​‌​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​​‌​​​​​‌​‌‌‌​​‌​‌​‌​​​​‌‌‌‍Agana, Defendant-Appellant, for arm in drug trafficking. relation to Even John V. Cruz. though both defendants submitted flawed in- Highsmith, Highsmith structions, David J. & O’Mal- they, prosecution, neither nor len, Guam, Agana, Defendant-Appellant, for apparently the court was aware of the cor- circumstances, Louise Han Perez. rect law. Given these waived, error cannot be deemed Johnson, Karon V. Assistant United States forfeited. We therefore undertake a Guam, Attorney, Agana, for the Plaintiff- Howevеr, error review. because we conclude Appellee. “seriously the error is not one that fairness, integrity public rep- affeet[s] judicial proceedings,” utation of id. at 113 S.Ct. at 1779 United States v. Atkinson, 56 panel opinion only arguments appeal. 1. The addresses the flawed Cruz's on Because we took 924(c)(1) banc, § instructions under 18 U.S.C. panel this case en did not on rule arguments appeal. its discussion of Cruz's Given, however, petition rehearing. Perez’s petition rehearing, indicating Perez filed a identical, that the issues are we address Perez’s 924(c)(1) § that his conviction under suffered arguments together on the merits with those of from the same defect as Cruz's conviction. Per- Cruz. pointed joined ez also out that he had in all of (1936)), “notice” and made an unsuccessful effort to draw we do not door L.Ed. 555 his home. of Criminal Cruz out of The officers then under Federal Rule blown, 52(b). their cover had and so We therefore withdraw decided been Procedure opinion barged yelling “police into the offi- original panel’s residence portion of quickly un- un- cers!” Officers discovered Cruz concerning the flawed instructions 924(c)(1). table, chambering the kitchen at 1384-86.2 derneath der pistol into a loaded 9 mm.

round Glock-19 arrest, I sight. special with a laser After his M-ll 9 police also discovered loaded SWD AND FACTS PROCEDURAL pistol mm. and Norinko SKS semi-automat- BACKGROUND bedroom, master Inter ic rifle in the and an trafficking drug out a This case arises of living pistol with silencer in the room. TEC-9 and in Cruz conspiracy Guam. Defendants Cruz, along and with a third co- Perez others, charged, Perez, and along with were defendant, together.4 were tried At convicted, of con- instances various in some connecting introduced evidence prosecution The fol- drug, and firearm counts. spiracy, guns found at the of Cruz and residences pеrtinent to the lowing recitation of facts is respective Various Perez to the defendants. under 18 of Cruz and Perez convictions testified and Perez witnesses also that Cruz 924(c)(1), carrying a fire- using § U.S.C. carrying weap- to friends sold heroin while drug trafficking.3 arm in relation prosecution expert on. The adduced testimo- to a sold four times In Perez cocaine ny weapons that narcotic traffickers use officers, in police police informant. Guam jury con- protection and intimidation. The put his agents, with federal then cooperation distributing and victed both Cruz Perez of surveil- under surveillance. The residence 841(a)(1), § of heroin in violation 21 U.S.C. exchanged fire- Perez lance revealed in possessing heroin intent to distribute from goods stolen for heroin arms and other 841(a)(2), § being 21 fel- of U.S.C. violation informant, According police to a Perez Cruz. possession in in violation of ons firеarms surveillance, and he was under discovered carrying 922(g)(1), using § and U.S.C. at Cruz’s the bulk of contraband cached in drug trafficking in relation to firearms December, police In residence. 924(c)(1).5 § in- of 18 U.S.C. The violation search warrants for the residences obtained pos- charged that dictment Perez and Cruz Perez, and and executed those of both Cruz up to heroin with intent to distribute sessed on December 28. warrants Thus, de- including December 1993. and committing a in the fendants were course residence, officers entered Perez’s When trafficking crime on were drug the date girlfriend on a he was seated couch with weapons in circum- with the and arrested up, Paulino. As stood officers Matilda Perez described above. stances Caspian pistol Arms on the saw a .38 caliber couch, had Perez’s been under pistol

leg. Police also found a .22 caliber II pistol and purse, Paulino’s a semi-аutomatic DISCUSSION bag in a hall. their convictions executing the of Cruz’s Defendants contend

In search warrant 924(e)(1) residence, § be over- on his 18 U.S.C. should police undercover knocked under Perez, co-defendant, banc, was ac- Although the third we took the case en 4. Louise 2. entire during only conspiracy instruc- quitted issue concerns us is the use a firearm Perez, 924(c)(1). § U.S.C. tions under 18 F.3d trafficking, §§ drug in violation of 18 U.S.C. opinion panel is not The rest the review, 1384-86. 924(c)(1). opinion does not This therefore is not with- affected our en banc concern her. drawn. panel of Cruz and affirmed convictions 5. The original panel opinion a more contains 3. The (2), 841(a)(1) §§ & and 18 under 21 U.S.C. Perez Perez, detailed recitation the facts. 922(g). § 67 F.3d at U.S.C. 1381-82. Alvarez, object.” trial court in- turned because the failed to v. Guam (9th Cir.1985). struct on an essential element of the crime. past, In the we have 924(c)(1)provides: Section corrected invited errors extraordi circumstances, Whoever, nary during any and in relation to such in as “when the ... drug trafficking judicial ... crime for which tegrity process itself would in a court of prosecuted he be otherwise suffer.” Id. Marshall States, firearm, (9th uses or carries a States, United Cir. shall, punishment provid- in addition to the 1969)); see, Freeman, crime, drug trafficking ed for such ... be (9th Cir.1993) (conducting imprisonment sentenced five plain error review of the omission of an en years.... instruction, trapment though even the defen voluntarily 924(c)(1) added). dant had in withdrawn such an § (emphasis 18 U.S.C. trial). government struction at Mendoza, argues United States v. 11 F.3d 126 doctrine, Cir.1993), that under our invited error we held the statute’s “in relation may not review the error requirement because Cruz and to” is an essential element of a 924(c)(1)offense, proposed faulty Perez both instructions which must be submitted jury. to the court. to a Id. at 128. Although Mendoza was decidеd several By contrast, argue Cruz and Perez that we prior months to defendants’ the court may 52(b), review the error under Rule did not submit the relation to” element to provides: jury.6 busy the A trial court cannot be affecting Plain errors or defects substan- error, particularly blamed for this kind of rights may tial although they be noticed agreed that the in- when both sides flawed brought were not to the attention of the struction, which from was taken the Manual court. Jury Model Criminal Instructions the Circuit, (1992),

Ninth Instruction 819U 52(b). now, Fed.R.Crim.P. Until we have circumstances, given. should be Under these plain undertaken a error review when the we must now consider whether we ‍​​‌​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​​‌​​​​​‌​‌‌‌​​‌​‌​‌​​​​‌‌‌‍re- merely object faulty failed to to and, so, view the error if whether we should instructions, opposed actually proposing to grant relief. Baldwin, agreeing faulty instructions. 987 F.2d at 1437. Viability A. The of the Invited Error Olano, In provides the Court an extensive Doctrine plain framework for errоr review. 507 U.S. repeatedly We have held that where the 731-87, at 113 S.Ct. at 1776-80. Olano does proposes allegedly defendant himself flawed not, however, specifically concept address the instructions, jury deny we review under the omission, of invited error. From this the See, e.g., invited error doctrine. panel plain concluded that error review is Butler, (9th 916, n. 1 States v. F.3d appropriate for invited errors: Cir.1996); Staufer, v. United States 38 F.3d (9th lays 1103, Cir.1994); applied Olano out a framework to be 1109 n. (9th Baldwin, Cir.), to all instances where defendant’s counsel denied, properly preserve has failed to cert. error for 508 U.S. 113 S.Ct. (1993); appeal. distinguish Olano does not L.Ed.2d 696 United States v. be- Guthrie, Cir.1991). object tween errors counsel fails to to and policy affirmatively. doctrine reflects the that invited errors that counsel invites 52(b) worthy errors “are less of consideration than Rule does not make this distinction those where the dеfendant fails to either. First, gave following drug The court the instruction on 18 the defendant committed of- [a 924(c)(1): fense]; U.S.C. Second, guilty for the knowingly order defendant to be found the defendant used or 924(c)(1)], government firearm], the [section must committing [a carried while prove following beyond each of the elements crime. reasonable doubt: of, i.e., aware Although n. 13. defendant was knew at 1385 Olano of, relinquished right. directly address so-called “invited or abandoned

does For Baldwin, error,” certainly example, addresses the difference it defendant was rights. and waived 507 charged' forfeited conspiracy between distribute co- 732-34, Ac- 113 S.Ct. 1776-78. pro- caine. 987 at 1436. The court’s agree that com- cordingly, we cannot Olano posed instructions left out “overt act” as an our invited error doctrine. pletely overruled government crime. Id. The element Instead, that doctrine must reformulate excepted because the instructions discussion of waiver to conform to Olano’s requirement. omitted this Id. at 1437. The and forfeiture. attorney he defendant’s indicated that did necessary not believe to instruct was is the failure to make a Forfeiture requirement. overt act Id. This scenario right, is of a whereas waiver timely assertion example because the of waiver record relinquishment or abandon “intentional was aware of reflects the defendant right.” ment of a known 507 U.S. yet relinquished omitted element and at 1777 Johnson 113 S.Ct. jury.8 right to have to the it submitted Ac- Zerbst, Staufer, (1938)). cord 38 F.3d at n. 4 rights Forfeited 82 L.Ed. 1461 (waiver error occurred because attor- while waived reviewable legal ney modified instructions to “If a was model con- are not. Id. rule Supreme form to most Court during proceed the District Court recent deci- violated (refusal sion); Guthrie, ings, did 931 F.2d at 567 and if the defendant not waive rule, under invited there has been an ‘error’ within review instructions then 52(b) doctrine, despite ab had offered meaning of Rule because trial court objection.” instruction, timely give Id. at omitted of a defendant’s at- sence objected). torney 113 1777. in each at occurred S.Ct. Waiver cases these because the defendant considered now, our invited doc Until error element, law, and, controlling or omitted solely trine focused on whether the de has law, spite being applicable aware or caused the See fendant induced error. proposed accepted a flawed instruction. Baldwin, (citing at 1437 United Montecalvo, 685 States Here, however, reveals that the record nei- Guthrie, 567). Cir.1976), and 931 at We defendants, government, nor the ther however, that recognize, now we must also requirement was court aware of Mendoza’s intentionally the defendant consider whеther that the “in to” element be submit- relation right. or abandoned known relinquished jury. Although to the 11 F.3d at 128. ted Olano, 733, 113 If 507 U.S. at S.Ct. at 1777. and submit erroneous in- Cruz Perez did error, invited has both and defendant structions, no evidence there is right, then relinquished a known the error is affirmatively relinquish a known acted and therefore unreviewable.7 waived is, right. That is no evidence that there submitting considered suggest that a defen- Cruz Perez We do not mean then, jury, jury “in relation to” may dant have instructions reviewed for element reason, rejected merely by claiming for some or other plain he did not tactical error Thus, be said that Cruz were the idea. it cannot the instructions flawed. What we know right to have this and Perez waived their are concerned with is evidence the record Olano, long jury held that instruc- at structions. We have 7. Not are waivable. all attorney. right may S.Ct. at 1777. “Whether a is be a defendant's 113 tions See, waived waivable; ("we partici- defendant e.g., Staufer, whether the must 4 38 F.3d at 1109 n. deem waiver; pate personally waived”). certain in the whether jury issue [the instruction] waiver; procedures required and whether particularly Shabani, must be in- defendant’s choice preceded States v. 8. Baldwin voluntary, depend right at all on the (1994), formed 130 L.Ed.2d 225 U.S. Id. stake.” proof Circuit law overruled Ninth drug conspiracy case, act of a an overt was an element we need not conduct In this an extended § analysis concerning waivability under 21 U.S.C. 846. in- ” jury; proceedings.’ element submitted to the waiver occurs dieial Id. at 113 S.Ct. at Atkinson, relinquishes when or aban 297 U.S. at 392). Olano, right.” Applying analytical at dons a “known 607 U.S. at S.Ct. this 733, 113 bench, S.Ct. at 1777. framework to the case at we conclude that, although there was and it was contrary, propose To the the failure to plain, it is not the kind of error that should “in relation to” element was forfeited error: final, discrеtionary be noticed under Olano’s objected during error that is prong. Accordingly, grant we do not relief. right because the defendant is unaware of a Here, being that is violated. because neither 1. Was There Error? right Cruz nor Perez knew of the to have the An ‍​​‌​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​​‌​​​​​‌​‌‌‌​​‌​‌​‌​​​​‌‌‌‍jury, error occurs when there omitted element submitted to the has been forfeited, rule, legal a deviation from a opposed must treat the as unless the rule Olano, 732-33, has been Accordingly, to waived. waived. 507 U.S. at we review the error 52(b) Here, plain alleged under Rule error. S.Ct. 1776-77. er See John - States, U.S.-,-, ror is the district court’s failure to son United instruct - on the “in relation to” element of 137 L.Ed.2d (1997) (forfeited Mendoza, Under plain reviewed for the district court’s failure err or).9 submit this element to the was error. Moreover,

11 F.3d at 128. as discussed in II.A, B. Plain Error Review above, Part we conclude that neither nor Cruz Perez waived the error. Accord Supremе four-part Court mandated a ingly, there was “error.” inquiry to determine whether 52(b): (1) be corrected under Rule there 2. Was the Error Plain? (2) (3) error; plain; must be it must be Olano, rights. must affect substantial plain An error when it is 732-35, S.Ct. at 1776-78. Even “clear” or “obvious” under the law. reviewing after a court finds error un- 507 U.S. 113 S.Ct. at 1777-78. Men three-part rubric, doza, der this relief remains dis- which had been decided several months cretionary prior under Olano’s fourth and final clearly to defendants’ and unam requirement. biguously Id. at 113 S.Ct. at required the submission of the “in Appeals 1778-80. “The jury. Court should cor- relation to” element to the 11 F.3d at affecting rect forfeited error Accordingly, substan- 128. “plain.” the error was - rights ‘seriously Johnson, at-, tial if the error affect[s] See also 117 U.S. S.Ct. fairness, (error integrity public reputation ju- at 1549 not clear at time of but concurring opinion (same); Balter, 427, 9. contends that de- "our United States v. 91 F.3d 434 today (3d Cir.1996) waiver); (assuming cision is aberrant" because “[a]ll other United States v. Hardwell, 1471, (10th Cir.1996) circuits to address invited 80 error doctrine since F.3d 1487 waiver); (finding essentially Yu-Leung, Olano have held United v. survives un- States 51 1116, (2d Cir.1995) (same). on, changed.” F.3d 1123 The cases the concurrence relies however, support proposition. do not this In Tandon, (6th In United States v. 111 F.3d 482 none of those cases the court did even consider Cir.1997), applied the court the invited error way whether Olano should inform the the courts gave doctrine where the trial court the instruc- doctrine, apply the invited error let alone "hold” sought by tion the defendant. While it is true that the invited error doctrine "survives ... un- waiver, expressly that the court there did not find fact, changed.” In none of those cases even there is no indication that the defendant was today-namely, considered the issue we decide relinquished. unaware of the he Id. at 489. apply whether the invited short, error doctrine should In nоne of these cases considered whether forfeited, when a defendant has rather applied the invited error doctrine should be to a waived, right. example. than forfeiture, For United States involving case rather than waiver. 912, (7th Cir.1996), Griffin, ap- v. 924 The concurrence's canvass of the other circuits doctrine, plied Nelson, invited after omits United States v. 102 F.3d 1344 explicitly finding Cir.1996), that the defendant had waived supports position which our rather There, to claim error. See also United States v. than that of the concurrence. the court Ross, 1525, (7th Cir.1996) (defen- 1542 applied plain error review to forfeited error. Id. Thus, "voluntarily any objection”); dant today waived at 1348. our decision is not "aber- Mitchell, 800, (1st Cir.1996) States v. 808 rant.”

847 “ - -, 337, consideration,” 117 S.Ct. grounds, U.S. appellate ‘plain’ at time Olano). (1996). though an L.Ed.2d 266 “Even ele under “plain” error may qualify as specifically is not men ment of the offense Error Affect Substаntial 3.Did tioned, jury possible the made the it remains Rights? necessary finding.” Accordingly, Id. at 867. and Perez presume we cannot that Cruz plain error re In context of trial court’s error.11 prejudiced were rights, view, to affect substantial for an error However, difficult need not make the we the error it means that must “in most cases prejudicial, of whether it was determination at 507 U.S. prejudicial.” have been phrase ‘affecting substantial or “whether the although “Normally, at 1778. 113 S.Ct. always synonymous ‘prejudi rights’ with case, every not perhaps ” Olano, cial.’ 507 U.S. S.Ct. showing prejudice to specific make a must Fulminante, v. (citing Arizona prong, ‘affecting rights’ satisfy substantial 279, 310, 113 L.Ed.2d 111 S.Ct. 52(b).” 735, 113 at 1778. Id. at S.Ct. of Rule (1991)). Instead, teaching we follow cautionary statements these contains Olano of Johnson: (ie., “normally”) rec eases” and “in most was fact that there the Court ognition of the question But we need not decide and not a rule violatiоn10 dealing with a mere because, assuming that the even failure right. These a constitutional deprivation of to the element] relation to” [the submit may some suggest that there be statements rights,” it does substantial “affect[ed] cases, involving the violation such as those requirement of the final Olano. meet preju rights, constitutional certain - We, -, at 1550. S.Ct. to be shown. not have dice thus, substan that Cruz and Perez’s assume Here, dealing assert affected, if Olano’s rights tial were Failure submit constitutional violation. ed showing prejudice, requires a prong third jury relieves the to a an essential element proceed to prejudiced, and their were every prove obligation its prosecution of requirement. final Olano’s beyond doubt. Carella a reasonable element “Seriously Affect the the Error Does 263, 265, 109 California, 491 U.S. Reputa- Fairness, Integrity or Public (1989) (citing 2419, 2420, In 105 L.Ed.2d 218 Proceedings?” tion of Judicial 90 S.Ct. Winship, 397 U.S. re (1970)). Depriving 25 L.Ed.2d 368 conducting our review of this fact-finding duty thereby vio of its element, all circumstances at consider “we process right to have due lates defendant’s including strength of the evidence beyond a reasonable element found each against the defendant.” every ele Failure to instruct doubt. Id. (9th Cir.1994), Campbell, is, therefore, error. Id. constitutional ment denied, U.S. cert. (1995) (internal quotation however, not, 738 131 L.Ed.2d presump The error - at-, omitted). Johnson, Gomez, 117 U.S. See Roy v. 81 tively prejudicial. See banc) (con (9th Cir.) (en (reviewing under Ola- record S.Ct. at 1550 866-67 in strength of evidence prong no’s fourth for element cluding that of an essential omission from instruc subjected support of element omitted error and can be is not structural tions). concern, course, failing review), on other harmless error overruled 28 F.3d 951 constitutional error. presence structural was the of alter- The error in Olano deliberation, Cir.1994) (enbanc), during aff'd, jurors in violation of U.S. 115 515 nate 24(c). However, (1995). 507 Rule of Criminal Procedure Federal U.S. at 132 L.Ed.2d 5.Ct. at 1774. 113 S.Ct. panel opinion, original Roy, the decided after that, error for a while it is structural clarified panel the omission of an that 11. The concluded law, it a matter of an element as court to decide constitutional is a structural essential element error, omit court structural error for a is not rights.” necessarily affecting "substantial jury's from a consideration. an element on our at 1385-86. It relied 866-67. at holding v. Gaudin that a court in United States deciding materiality of law is a as a matter to” submit the “in relation element to the would not have convicted Cruz and Perez of 924(c)(1) i.e., solely charge, § highly likely is that a conviction be based the it is that, record, on that a defendant committed a on this evidence would have found that merely possessing facilitate, or, drug weaрons offense while a fire- the were intended to Stewart, least, potential arm. at had facilitating,” “the for (9th Cir.1985), on-going drug trafficking overruled on other crime. — ¶. States, grounds by Bailey United U.S. The Court’s recent comment in Johnson (1995).12 —, L.Ed.2d 472 116 S.Ct. well, applies, as to-the case at bench: element, Thus, jury may without the con- Indeed, it would be the reversal of a con- 924(c)(1) if it vict under even finds that the viction such as this which would that have to facilitate weapons were not intended fairness, “seriously affect[ing] effect [of underlying drug The record crimes. before integrity public judicial or reputation of us, however, support does not that this oc- proceedings”]. error, “Reversal for re- or Perez. curred to either Cruz gardless judgment, of its effect on the chambering Police discovered Cruz encourages litigants judicial to abuse the weapon round into a under the kitchen table process public and bestirs the to ridicule when his home. Cruz entered was “miscarriage justice” it.” No result will committing charged drug the course of here we do not notice the and we crime, trafficking possession of heroin decline to do so. distribute, at the intent time. - (citations at-, U.S. S.Ct. at 1550 gun lying leg Perez had a under his while omitted). record, Accordingly, on this police seated on a couch when entered his conclude, final, discretionary under Olano’s Perez, likewise, home. was the course of prong, that this error does not warrant cor

committing charged drug trafficking “seriously fairness, affeet[ing] rection as crime at that time. integrity judicial public reputation pro or ceedings.” U.S. 113 S.Ct. Moreover, police guns found various at 1779. respective were tied to the defendants at both defendants’ homes. Witnesses testified Ill guns transacting that the men carried while drug Finally, prosecution deals. offered CONCLUSION expert testimony drug carry dealers Because Cruz and Perez did not waive the guns protection and intimidation.13 have the relation to” element short, strong jury, there is and con submitted to the we conclude that we vincing and Perez evidence Cruz carried should review the forfeited under the 52(b). guns ‍​​‌​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​​‌​​​​​‌​‌‌‌​​‌​‌​‌​​​​‌‌‌‍used the “in relation to” the error standard of Rule Howev- and/or er, review, charged drug transactions. All that is need after such we further conclude requirement gun that, ed to meet this is that “the “seriously because the error does not ‘faeilitat[e], fairness, poten or integrity public ha[ve] least must affect the reputa- drug facilitating,’ trafficking judicial tial of proceedings,” tion of the error should States, 52(b). fense.” Smith U.S. not be noticed under Rule there- We 2050, 2059, 124 part L.Ed.2d original pan- fore withdraw that (1993) 540) Stewart, opinion 779 F.2d at concerning el’s instruction added). (emphasis extremely using carrying It is therefore a firearm in relation to a that, instructed, unlikely properly jury crime, drug trafficking the 67 F.3d at Hernandez, Loaiza-Diaz, (9th In United States v. States v. (9th Cir.1996), Cir.1996). we held that had Stewart by Bailey suggest- been overruled to the extent it firearm, presence ed that "the inert of a without 924(c)(1) suggest § 13. While we do not that the more, enough trigger prong ] is to ‘use’ [ [the of] offense based could be on the evidence summa- - 924(c)(1)" -, alone, is, § Bailey, nonetheless, paragraph rized in this 508). However, circumstantial, strong 116 S.Ct. at Stewart expert has not direct and evidence any respect. operandi. been overruled in other See United of defendants' modus requests, appeal error in what he himself 1384-86, court with to affirm the district right. a of a assignment of error invited error is waiver known respect to defendants’ right relinquished or “in relation to” The known abandoned of the regarding omission right appeal an error in an instruc- under 18 is the to jury the instructions from element (cid:127) tion, 924(c)(1). right particular a in- not a known to § U.S.C. struction. this case to the three- Finally, we remand the whether defen

judge panel instructions, to determine only jury This case concerns under 18 U.S.C. convictions distinguish dants’ it in future perhaps so we will - (1) 924(c)(1) Bailey, by: § are affected relating jury cases of invited error 501, 133 U.S.-, L.Ed.2d an peculiar, S.Ct. instructions. The context is that consider; panel previously did not the issue error came from our own form book. (2) a court’s failure submit or the district requested the instruction in Defense counsel firearm, regarding which special book, verdict form had our form but a case come down firearms, in connection defendants used held that our few months before trafficking drug offense. incorrectly with the form omitted the relation to” of the crime under 18 U.S.C. element KLEINFELD, joined by Judge, Circuit 924(e)(1). Mendoza, States v. See United THOMPSON, HUG, Judge, R. DAVID Chief (9th Cir.1993). Perhaps we will NELSON, TROTT, Judges, Circuit and T.G. jury today’s limit to invited error decision judgment. concurring in the book, on our own form instructions based opinion express limiting not contain does disagree But I I in the result. concur language. possible that we will construe It is unreviewability rejection majority’s any today’s opinion broadly, and hold in fu- shows except where the record invited error any kind of invited error that ture case legal entitlement knew of the that counsel government can show unless Traditionally, invited error is being waived. made, being knew what error was defense ‘exceptional except in “the most unreviewable circumstances as for will reverse in the same “necessary to is where reversal situation’” error. forfeited judicial process integrity preserve miscarriage justice.” prevent or to majority opinion is mistaken its The Schaff, likely in its conse- and mischievous doctrine Cir.1991). requested Defense counsel of trаditional quences. It infers abolition judge gave, so invited instruction the States v. error doctrine from United invited the error unre- would make error doctrine 733-34, not, prejudicial it was viewable whether (1993), but Olano 123 L.Ed.2d 508 of it counsel was aware and whether defense nothing “invited error.” Ola- says about I treat instruction or not. would us, no, Supreme reversed because Court in this case as waived. error mistakenly reversed a conviction we had objection an error to which no the basis of majority opinion says that “an error had not been unreviewable,” made and which only if had been waived and therefore says there is prejudicial. to be Olano shown has both invited “the defendant waived, right has been at all when a right.” This is no error relinquished a known relinquishment “intentional and waiver is the explain I And it is impractical, as below. right.” known Id. mistaken, of a doetrinally it confuses two or abandonment because says majority at 1777. The rights. defense counsel asks When levels relinquishment of a known way, may not that an intentional judge proceed a certain he person know right requires entitle him to of some ease which would know something differ- require there is a judge proceed in a different that the demand Thus, can- defense counsel of the court. giving up that he is ent way. But he does know not, majority opinion, waive under the appeal whatever error his client’s defense unless pro- in a instruction judge if the might later be identified is incor- that the instruction counsel knows requests. Because defense coun- as he ceeds anyway. No ethical de- right and submits it known rect intentionally relinquishes the sel 850 Circuit, thing, it lawyer applying would do such a so is The Tenth

fense like- wise held that any “[a] cases will fall into the defendant cannot invite a not clear that ruling by appeal.” and then have it set asidе on category error as limited of invited Hardwell, 1471, v. United States 80 F.3d majority opinion. (10th Cir.1996). 1487 Hardwell that holds today Our decision is aberrant. The other plain invited error “cannot be reviewed for error circuits to address invited doctrine error” because is waived. generally held that it since Olano have sur disagree majority’s I reading with the unchanged. Many explicitly con vives have in majority authorities Footnote 9 of the distinction, sidered the forfeiture-waiver eases, opinion. explained above, The do should be treated as held invited error expressly consider Olano connection with waiver, reasoning urged Ias have above. invited and conclude that invited error Griffin, example, For States v. 84 United waived, should be treated as not forfeited. (7th Cir.1996), 912, holds, citing F.3d 923-24 quoted The and summarized material from Olano, that defense counsel’s statement of the cases that to shows be sо. Footnote 9 approval for an instruction “amounts to a attempts distinguish to the eases I have cited right appeal.” waiver of the to claim error on ground on the the defendants had incorrect, The instruction was but de waived and not forfeited the error in express approval fense counsel’s “extin majority’s those cases. But reasoning is any guished appellate to review” be reason, reason, circular. The cause it amounted to a “waiver” of the exact, reason, expressly why stated the error appeal point. analysis on that This is the waived, was treated as that it was was invit- Likewise, we should follow. United v. States ed. Our sister circuits reasoned those (7th Ross, 1525, 1542 Cir.1996), 77 F.3d inter invited, if cases that error is it should be prets Olano to mean that defendant re ' waived, merely treated as not forfeited. quests particular given, instruction which is generally Invited errоr has been unreview objection” voluntarily any “he has waived able. Miguel, See United States v. 111 F.3d instruction, analysis “plain so does (9th Cir.1997); 673-74 United States v. apply technically not because there is no Baldwin, (9th Cir.1993); 987 F.2d ‘error’ to correct.” Where sub Schaff, United States v. 948 F.2d given, mits the instruction “we will not re (9th Cir.1991); Alvarez, v. Guam 763 F.2d plain view ... even error.” Id. (9th Cir.1985); 1037-38 Mitchell, Likewise United States v. Alexander, v. 695 F.2d Cir. Cir.1996) (1st F.3d 800 holds where de- 1982); States, Sherwin v. United affirmatively counsel fense said he had no (9th Cir.1963). 137, 147 exception objection arguably proce- to an erroneous narrowly this rule has been limited to “the dure, ” “[t]hat action raises later silence ‘exceptional most situation’ where reversal from mere forfeiture to waiver.” Id. at 808. “necessary preserve integrity (3d Balter, United v. States judicial process prevent miscarriage or to Cir.1996) (“we would not find that the district justice.” Schaff, United v. States court erred even if Cutler could show that he (9th Cir.1991). 501, 506 prejudiced.”). was Invited error doctrine has been around for Tandon, long United suppose Supreme States too that the Court (6th Cir.1997), away 487-89 the Sixth Circuit dis- would have tossed it without even men- tinguished See, tioning our en e.g., Philadelphia, Wilming- banc decision it. (9th Cir.1996), Keys, States v. Company 95 F.3d 874 ton and Baltimore Railroad How.) Howard, (13 ground Keys 307, 343-44, that the error in was mere- forfeited, (1851) (in ly claimed in upholding but the error the case L.Ed. 157 instruction defendants, “requested at bar was invited. Because attacked “it is ... conclusive” error,” instruction requested substantially invited the Sixth Cir- that defendants simi- instruction); States, inappli- cuit held that error review was lar v.Wells United (9th Cir.1919) cable. Id. at 489. (party may F. 619-20 invited). help Courts time. Were it not for the of complain of instruction essential counsel, long recognized supplemented by its “wide and varied have our law clerks’ re- trial, throughout search, my Alabama colleagues might a application” even learned not Johnson, every R. Co. v. bearing Great Southern know of decision on each issue Cir.1944), pressures us, when the coming and I I before know that would quick great. judges make are on to decisions Preparation potentially not. for infi- nite, assuredly but time is most finite. A knowledge majority decision confuses The lawyer’s critical most decisions are often how waiving particular right a with one is that very to use the time available for limited right to knowledge waiving one is the that preparation prepara- of defense. Defense error, All of us known or unknown. appeal trips jail tion include to the for client on civil side have practiced who have the interviews, reading discovery whatever the language the releases with standard used get, examining can real evidence defense claims, all or un- releasing “any and known videotapes, finding as audio аnd and such Invited error is likewise an aban- known.” witnesses, interviewing researching legal appellate all donment of claims issue, likely drafting to be questions at mo- unknown, by the invita- known or affected oppositions, drafting tions and instruc- cases, plaintiff needs the tion. In civil tions, preparing real evidence use power in order to to release unknown claims cajoling compelling appear to witnesses get money for most the claim he knows trial, negotiating plea, prepar- and toward a about, because otherwise he cannot sell ing cross examina- outlines direct and legal claims he insulation from tions. Likewise, or discover may think of later. ability needs to have criminal defendant Lawyers every possible not do research lawyer say you to the “if do what judge, every they. in issue of law case. Nor should request, you will not because be reversed necessarily lawyer properly A and exercises it,” persuade as an inducement to judgment professional how to allocate about judge comply requests to the correct- way time for in a preparation the limited judge have time to ness of which does not likely produce the for the to most benefit research. time client. These allocation decisions are necessity by logical partial or com- made major- presupposition A false underlies the plete ignorance of be accom- what would ity’s analysis. majority imagines The a law- differently. if were plished time allocated who, yer every competent, deci- knows researching is a waste Sometimes the law any bearing point arising in his sion of law time, finding talking while and to a witness Lawyers lawyer. There is no such case. produce a would defense bonanza. Oftеn judgments, not make which known enough both to the there is not time to do assert, rights but also which are possible Experienced law- maximum extent. says looking majority opinion worth for. The doing yers usually they know are and what “there is no that Cruz that evidence and clients, they acting wisely for their when submitting” Perez considered a correct in- do, make their decisions about what and against struction and decided it for tactical done, prepare not be the case. what need reasons, that” and “the record reveals Mendoza, defendants were unaware of so bar, lawyers case at did not right to a correct instruction cannot be treat- Mendoza, know far as the record about so reasoning implies ed This as waived. majority’s conclusion Cruz shows. ap- not the defense could waive its prejudiced by omission of and Perez were peal “during omission of the relation to” that the relation element shows invited, language to” from the instruction it entirely wasting in not lawyers were correct unless defense counsel found and read had finding time out Mendoza. A their about Mendoza, so would know library finding couple of hours the law “during language. and in to” relation Mendoza, it, reading drafting a revised instruction, time, The law is so vast that all of us are neces- would have been a waste concludes, in- sarily ignorant any particular majority of most of it at because as invitation, upon “in to” expanding the relation own is inconsistent with the struction gotten “strong presumption not have their that element would clients counsel’s conduct Obviously jury going range acquitted. a was not to falls within the wide of reasonable guns, professional acquit defendants who sold heroin assistance.” See Strickland v. 668, 689, sales, guns Washington, to narcotics and sat on a carried U.S. (1984). gun during a their nаr- or chambered round 80 L.Ed.2d The con- arrests, theory perhaps sequence likely weakening cotics on the that is to be of defense trial, possession carrying indepen- position their and were counsel’s as well as unrea- to,” of, “during appellate guilty in relation dent and not and sonable reversals of defen- drug majority’s their crimes. The conclu- dants’ convictions. Invited error doctrine is error, sion, despite helps prosecution that should affirm not a tool that the we lawyers appeal despite were in hold onto convictions on shows that the defense er- trial, rors. At allocating necessary not the time to find invited error doctrine works for the defense. Mendoza. Traditional majority invited doctrine lets trial

Though plainly correct that judges give leeway counsel majority defense to man- prejudice, there was no under- age they their cases as and their think clients sagacity of defense counsel. estimates response many requests best. to defense probably ignorant Defense counsel were trial, during judge says Mendoza, before and to enough but knew about the case to himself, “I’m not sure defense counsel is preju- know that their clients would not be right, I should let the defense run the diced omission of the research which Judges freely defense.” allow defense coun- it. would have uncovered Defense counsel cases, sel to run their because there has concluded, just doubtless knew what we have traditionally been no risk of reversal for in- to” that relation did not matter this vited error. mattered, case. Had it defense counsel would have wondered some sort of whether judgments routinely If can be reversed for instruction could be drafted would en- error, judges likely invited to take this, acquit able a based on and would many proposed chances on defense counsel’s spent library time in the have some law language. They just instruction will use By concluding found Mendoza. boilerplate, their own which is often harder despite should affirm we conclude juries to understand because it is so years lawyers some after the decided how to general. prepare the defense that would have made today’s applies broadly, If decision more “during no difference to add relation witnesses, to examination of the effect on language to” to the instruction. So the law- Judges trials will be dramatic. will call yers research that would were —the think bench conferences defense coun up have turned Mendoza would have been mistake, making justifica sel is to demand waste of time. time. Scarce apparently failing right. tion for exercise mistakenly say lawyer We “the didn’t Prosecutors will “ask to oversee defense Mendoza, know about so he did not inten- against counsel’s conduct at trial —to ensure tionally relinquish right.” a known The law- Decoster, reversal.” yer earlier, important made his decision (D.C.Cir.1976). 196, 208 spend when he elected not to time the law government If required prove were library researching an issue that would not adversary that its defense counsel was ad- affect the he outcome. Then when submitted equate, strongly it would be motivated and instruction, lawyer abandoned what- during well advised a criminal appellate might ever claim derive from protect prospect guilty order to rights, unknown, known or to a different verdicts, major to oversee the decisions instruction. and activities of defense counsel and the addition of a Performing Our new element to invited accused that affect trial. this would, matter, today, practical error doctrine the record show function as a re- knowledge by quire prosecution probe the defense of the error in its what has Cir.1996) (“Many a defendant would like to a sacrosanct area-the been heretofore trial”); grow a plant an error and risk-free relationship between highly confidential Southern, 140 F.2d at 971 Alabama Great lawyer. and his criminal (invited litigant “prevents a error ‍​​‌​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​​‌​​​​​‌​‌‌‌​​‌​‌​‌​​​​‌‌‌‍doctrine opinion). This reason- (concurring at 228 Id. verdict, then, speculating from on a and to the invited equal force ing applies with badly, speculation escap- turns out when the very can be destructive context. This so”). consequences having done ing the important defense tactics. legitimate and All need to do to avoid this corrosiveness FBI, usually not have the do Defendants invited error doctrine alone. is to leave DEA, immunity sen- and lenient offers of principle estоppel is at the The moral tences, powerful tools of and the other of invited error doctrine. Invited error heart with, they get nor do to work prosecution “estoppel allege has been called doctrine If proceedings. discovery in federal much wrong Id. at 971. It for the error.” lie, of- defense counsel prosecution witnesses judge something, to ask a trial to do defense leeway sound like to ask what ten need appellate court and then ask an to reverse really are intended questions, but obtuse request- judge the trial did what was because witnesses, expose in order to surprise the Lawyers usually very intelligent and ed. are interrupted are If defense counsel lies. They necessarily more capable people. know they doing, much justify what are forced to judges trying than the about their eases out, innocent and more truth will not сome them, judges because the do have secret people will be convicted. defendants, discussions with the or find scrutiny performance of counsel’s “Judicial witnesses. Defendants should be interview Strickland, 466 highly deferential.” must be behalf, lawyers’ on their acts their bound But it cannot at 2065. S.Ct. rely judges properly on defense because deferential, going to .appeal we are on be superior knowledge of the defense’s counsel’s the defense knew of look for evidence that duty pursue interests and them. best Cf. waived, being and then waived Boyd, F.3d at 721-24. There is no moral Worse, inquiry into intentionally. our society justification imposing on the risk intentionally counsel waived whether defense crime, unpunished repeated inevitable very byis its nature corrosive. a known convictions, percentage of reversed some Strickland, Cf. defendants invited of errors which becаuse trial, judges will have to ask At 2065-66. judges make. they they giv- are counsel if realize defense have, inquiry clients ing up their confidence

sure to reduce defendant’s lawyer for the

lawyer, and make it harder effectively his client’s

manage the case lawyers appeal, defense will feel

behalf. On they, predecessor compelled Santiago to assert VALDERRAMA- counsel, leaving gave up rights ignorance, FONSECA, Petitioner, they lying. us to decide whether judges make that determination? How will AND IMMIGRATION regulars, local judges favor such as Shall SERVICE, NATURALIZATION attorneys and federal assistant United States Respondent. judges cross-exam-

public defenders? Shall No. 95-70681. they seem? lawyers to see how honest ine Appeals, by making United States Court lawyers’ reputations we ruin Shall Ninth Circuit. lied about express determinations purported ignorance? Shall defense their 2, 1997. Argued June and Submitted continuing legal education lawyers be told at June Decided representation re- programs effective plant error in the record quires them to some Unit- against insurance convictions? See Boyd, 721-22 ed States

Case Details

Case Name: UNITED STATES of America, Plaintiff-Appellee, v. Louise Han PEREZ; Joseph Eclavea Perez; John Velasco Cruz, Defendants-Appellants

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 20, 1997

Citation: 116 F.3d 840

Docket Number: 94-10313, 94-10314 and 94-10400

Court Abbreviation: 9th Cir.