United States v. Jimmy D. McGuire

sеntencing its verdict after a jury returned than an hour of deliberation.

little more

sum, improper no doubt that the we harbor testimony Dr. Center’s and the

admission of Tuggle expert psy- denial to

trial court’s “ did not have a chiatric assistance ‘substan- ” influence,’ id., injurious effect or tial and jury’s Tuggle decision to sentence

death.

Ill conducted an exhaustive review

We have

of the record in this ease and are confident

that the Ake error this case could not have injurious prejudicial effect

had an on the

jury’s sentencing According- determination.

ly, we remand the case to the district court petition to dismiss the

with instructions corpus.

writ of habeas

REMANDED WITH INSTRUCTIONS. America,

UNITED STATES of

Plaintiff-Appellee,

Jimmy McGUIRE, D. Defendant-

Appellant.

No. 94-60648. Appeals,

United States Court of

Fifth Circuit.

March Parkinson, Burkes, Jackson, MS,

Jennifer Liston, Liston, III, Winona, William William appellant. forMS Morgan, May, Ruth Victoria Asst. U.S. Biloxi, Attys., George Phillips, Atty., MS, Tucker, Atty., James B. Asst. U.S. Jack- son, MS, appellee. for SMITH, DeMOSS, Before WIENER Judges. Circuit DeMOSS, Judge: Circuit McGuire, Jimmy Mississippi attorney, D. by jury convicted in the Southern Dis Mississippi filing trict of a false form IRS 6050I(f)(1)(B) § in violation of 26 U.S.C. 7206(1).1 § McGuire was sen and 26 U.S.C. to 36 months incarceration to be fol tenced by one-year supervised lowed release. $50,000, ordered to McGuire was also fined $20,000 pay for of confinement and or cost pay special assessment. dered to $50 conviction, his the district appeals McGuire denying post-trial motions court’s order his sentencing and the acquittal or new trial claims that the order. On deficient, the evidence instructions were unduly prej- and that he was was insufficient by prosecutors’ improper remarks udiced pendency closing argument. During the filing failing 26 U.S.C. requires § re to file or a false return. 1. Title 26 U.S.C. 6050I that cаsh $10,000 (or per 6050I(f)(2). ceipts § of more than transaction transactions) reported. 7206(1) Section any set of related provides § 26 U.S.C. Title 6050I(f)(1)(B) part: provides in relevant “willfully person who makes and subscribes evading person purpose statement, document, return, shall for the “No con- or other which (B) requirements ... the return of this section by declaration that it tains or is verified a written attempt to cause a trade or business cause or penalties perjury, and under the is made required to file a return under this section that believe to be true and correct which he does not or misstatement contains a material omission up every can be fined as to $100,000 material matter" of fact....” years both. and sentenced to three or penalties applicable The criminal for violation of 6050I(f)(1) provided are the same as those suggested appeal, the Court decided about it.” McGuire that Flores of this U.S. -, successfully could more evade law enforce- L.Ed.2d We are flying driving Highway ment renders the in persuaded that Gaudin Highway 26 as an alternative to Interstate case given in this reversible error. structions “[t]hey patrol don’t because that area will be conviction reversed and the all.” retrial. possible case remanded for police he had

Flores said that told that thе money tile, from a sale of floor was BACKGROUND confessed to that this McGuire was not true. Nonetheless, Martinez asked whether Jimmy attorney is an D. McGuire licensed February good it would be a idea to a Mississippi. in have contractor the state of tile, substantial McGuire had a criminal de- claim to replied have received McGuire practice representing fense individuals that it and would. McGuire advised Flores offenses, charged drug with as well as other up Martinez that it back if would their claim time, matters. Around that the IRS received they reporting filed a form the that with IRS information sug- from a number sources $280,000 they had received the from sale the gesting routinely that McGuire received and tile, but that it would be file inadvisable to report large failed to amounts of cash in his money illegal, the form if the was because practice, which he then laundered various filing a false form is also a crime. purchase expensive transactions for the result, estate.2 automobiles and real As explained that Martinez he had not been target of an McGuire became the undercover present seizure, stop at the and he but that “sting” operation. government agents Three partial $280,000. had a interest the sting that involved the resulted in represent agreed McGuire both Flores (1) agent McGuire’s conviction: Narciso Her- and effort Martinez their to recover the nandez, (2) (Flores); posing Flores as Hector $20,000 money retainer, proposed plus agent Montes, Henry posing as Hector Mar- agreement for 30% of whatever re was (Martinez); agent tinez David Bar- covered. asked Martinez whether McGuire rientos, (Bolivar).3 posing David Bolivar as would have to a form with if file the IRS $20,000 paid Martinez McGuire retainer Flores telephone contacted McGuire on in cash. Both Flores and ex Martinez February 5, 1992, $280,- story with pressed having concern about their name during had been seized from Flores’ car appear on forms. The three men then stop by traffic Mississippi Highway length discussed at different methods requested Patrol. Flores McGuire’s assis- recovering money evading filing requirement tance in avoiding established day forfeiture. Later that Flores and anoth- 26 U.S.C. 6050I. Martinez, agent, er met with in his McGuire proposed that McGuire Flores and Mar- Gulfport During meeting, office. Flores bring party, tinez in a third who could hand explained that it up hard to come money to McGuire. he McGuire said legitimate $280,000,

with a source dummy up represen- could then set file for which responded: “You McGuire don’t have and, party anyone tation of that third if genius. Ah, you lottery be a did win the asked, say arrange- McGuire could that the you, belong Florida? Did ah —did it representation ment for of Flores and Mar- someone else?” Flores informed McGuire dealer, strictly contingent tinez he was a was on fee basis. stating cocaine “I’ve just cocaine, client, selling “you been bit of explained, my a little that’s McGuire will be generating investigation testimony large The information offered observed in about amounts of cash large home McGuire's and about trial. well-documented at Several ex-clients purchases made cash. with routinely required large testified that McGuire payments cash in the tens thousands of dollars confusion, opinion 3. To avoid refers to receipts. give refused to Other individuals agents using their aliases. the “individual David Bolivar as to it.” identified be connected money won’t but that II, was received.” Part from whom cash February Flores tele- morning, next The identity “person required the which try- McGuire, that he was explaining phoned ... on whose behalf this transaction was retainer. money for McGuire’s ing to secure conducted,” later, days was left blank. Ten went day, Flores and Martinez Later February McGuire filed an amended office, time with a to McGuire’s back Part I of the amended form form 8300. David Bolivar. agent posed who as third again payor, Bolivar as the but dis- listed represent Flores again agreed to McGuire II in Part that Hector Flores was the closed action. Flores in the forfeiture and Martinez paid person on whose David Bolivar behalf $20,000 partial “agreed pay $20,000. Neither form disclosed Mar- following Then the the fee.” payment of identity. tinez’ exchange occurred: separate in- indicted in two McGuire was you thought what said about Flores: We charges conspiracy, money on dictments give just go ahead and yesterday. We’ll laundering, filing a false income tax return 20,000. you the filing a false form 8300. He was IRS Okay. McGuire: four, except on all counts count acquitted And, then, put you if need to Flores: relating to the 8300 forms filed after count something, you can somebody’s name or regard sting operation. to the With name on it. put his form, alleged indictment first 8300 Okay. McGuire: identity “falsely McGuire stated had the Bolivar inquired whether McGuire actually whom the cash was individual from got “I replied, money, to which Flores person on failed to disclose the received and “[p]ut Flores to McGuire admonished here.” the transaction was conducted.” whose behalf you.” away. not come from It should that form, regard to the 8300 second With “I’m exasperated, McGuire added Sounding “falsely alleged stated indictment McGuire second, just out of the room gonna walk identity from of the individual whom left, Flores directed okay?” As McGuire ap- actually cash was received.” McGuire and said attention to Bolivar McGuire’s four, the district peals on count his conviction responded “[j]ust him?” McGuire give it to denying post-trial his motion court’s order leaving the by throwing up his hands and district acquittal or new trial and the room. sentencing order. court’s returned, gave Bolivar McGuire When $20,000 JURY INSTRUCTIONS Both Bolivar and cash.

McGuire receipt. Bolivar told requested Flores violating 26 convicted of McGuire was per- say they had a he would that McGuire 6050I(f)(1)(B) conjunction 26 § with U.S.C. arrangement, anyone if asked. centage fee 6050I(f)(1)(B) 7206(1). § § Title 26 U.S.C. arrangement confirmed the McGuire (1) for the that a defendant requires proof anyone they to tell agreed that did not have reporting evading § 60501 purpose of $20,000. Flores informed McGuire about the (2) attempted or requirement; caused hundreds, and that were all that the bills § 60501 to file a cause a trade or business dol- money packaged one thousand (3) return; containing a material omission again expressed Martinez lars to bundle. § 6050I 26 misstatement U.S.C. of fact. ap- about whether his name would concern added). Title 26 (emphasis (Supp.1995) documents, pear instructed 7206(1) a defen requires proof that U.S.C. “get what we want.” McGuire to (1) (2) willfully; and subscribed made dant: (3) document; return, 7, or other February statement following day, McGuire Thе by a written declara 8300, containing or verified reporting the re- prepared IRS form penalties of $20,000 it was made under the form tion that ceipt cash. Part than checks drawn for less suggested keeping banks with cashiers’ the initial re- 4. McGuire also $10,000 statutory just amount under the tainer $10,000. structuring through different the transaction 1400 denied, (4) (10th 994, Cir.1990), cert. the defendant did not 1004

perjury; and 502 952, 405, that document be true and correct 112 believe U.S. S.Ct. 116 L.Ed.2d 354 every Corsino, matter material (emphasis (1991); add United as to States 812 F.2d McCord, ed). 1434, (1st 26, Cir.1987); 33 F.3d United States v. 31 n. 3 nom., (5th Cir.1994), cert. denied sub Brantley, (7th 1450 1322, 786 F.2d 1327 n. 2& States, Haley v. United U.S. 115 denied, Cir.), 908, cert. 477 106 U.S. S.Ct. 2558, 132 L.Ed.2d 812 S.Ct. 3284, (1986); United States v. 91 L.Ed.2d 572 Hansen, 940, (D.C.Cir.1985), 950 separate received 38 in- denied, cert. 1045, 106 1262, S.Ct. 89 Many ap- of those instructions structions. Greber, (1986); United ‍‌‌‌​​​​‌​​​​​​​​​‌‌‌​‌​​​​​​‌‌‌​‌​​‌‌​‌‌​​​‌‌‌​‌‍States v. 571 L.Ed.2d counts, generally plied to all while others denied, 68, (3d Cir.), cert. F.2d specific charged. to the Instruc- counts 396, U.S. 88 L.Ed.2d 348 only specific tion instruction to the Marsh, Storage (1985); Nilson Van & Co. v. conviction, required count of denied, Cir.), cert. F.2d (1) find that: McGuire knew (1985); U.S. 88 L.Ed.2d 53 practice duty report currency had a trans- Swaim, United States $10,000; in excess of actions (5th Cir.), knowingly willfully attempted caused or filing containing to cause the of a form 8300 Chandler, (6th v. 1148, 752 F.2d 1150-51 fact; material omission or misstatement of Elkin, Cir.1985); United States v. 731 F.2d pur- acted for the and that McGuire so denied, (2d 1005, Cir.), cert. 1009 469 U.S. pose evading reporting requirement. of 822, 97, (1984); 105 S.Ct. 83 L.Ed.2d 43 20, specific sepa- Instruction which was to a Lopez, United States v. 1359, 728 F.2d 1362 7206(1) involving § violation conduct un- rate (11th Cir.), denied, cert. 828, n. 4 469 U.S. sting operation, to the instructed related 112, (1984); 105 S.Ct. 83 L.Ed.2d 56 jury, part, in relevant as follows: Hicks, (8th 752, 619 F.2d Cir. you government If find that has 1980). The Ninth Circuit considered the is proved things, you these need not consider materiality question sue of to be a of law for whether the false statement was a material purposes, recognized exception most but statement, though language that false even prosecutions involving § for 1001. U.S.C. is used in the indictment. This is not a Flake, See v. 535, United States 746 F.2d question jury for the to decide. (9th Cir.1984), 537-38 1225, 1220, 105 S.Ct. 84 L.Ed.2d 360 Materiality I. to Instruct on Failure Valdez, United States v. 725, 728-29 gives “The Constitution a criminal de (9th Cir.1979); see also United v. States right fendant the to demand that a find Gaudin, (9th Cir.1994) (en guilty him all of the elements of the crime - banc), aff'd., -, U.S. 115 S.Ct. United States v. charged.” with which he is (1995). - Gaudin, U.S. -, -, 115 S.Ct. (1995). 132 L.Ed.2d first McGuire conviction, Shortly after McGuire’s deprived right that contends he was of this Circuit, sitting Ninth en banc in because the district court removed the issue Id. Gau- exception turned the into the rule. materiality, of an essential element of both making din was convicted on 43 of counts § reporting requirement 6050I and the false statements on loan documents in viola- 7206(1) § criminal provision, enforcement § Id. tion of 18 U.S.C. 1001. at 944. The jury’s agree. from the consideration. We Ninth Circuit reversed Gaudin’s conviction May McGuire was convicted based on the district court’s failure to submit May Id. materiality the well-settled law in the jury. over- the issue of On circuits, whelming majority banc, of our subsequent rehearing federal en the Ninth Cir- own, including materiality decision, our considered panel holding cuit affirmed the subject broadly materiality of false statements made the of crimi- is “in most situations prosecution fact,” nal question to be a ... law a mixed of law and Daily, United States v. the court. Id. at 948-49 jury. 921 F.2d must be submitted to the court to fail to makes it error for the district there is no said (“Only if it can be materiality jury. to the determination submit the issue component to the factual Oreira, thus, pure ques- thát it is a 29 F.3d at 188. materiality and See law, Amendment con- would Sixth tion of surprisingly, failed to Not apply.”). straint district court’s instruc at trial in Gau decision The Ninth Circuit’s materiality which removed the issue of tion quickly affirmed din was Indeed, jury. from the to have done so Court. required prescience on McGuire’s would have materiality is an When L.Ed.2d light part and have been futile prosecution, in a criminal element essential only in precedent, not well-established right to has a constitutional the defendant Circuit, every other federal circuit that jury. Id. at to the have that issue submitted issue, including the Ninth.6 had examined -, -, 2320. There is Nonetheless, preserve failure to McGuire’s historical, excep logical precedential or no requires at trial that we review his jury right for Amendment tion to the Sixth only. Fed.R.Crim.P. claim for false statement prosecutions criminal 52(b). at - - -, perjury. Id. requirement that materi 2316-19. Gaudin’s Analysis II. Plain Error ap to the has been ality be submitted convinced that the error We are that element require submission of plied to lofty plain case meets even the involving other federal statutes. prosecutions standard. Under Federal Rule Keys, 67 F.3d 801 E.g., United States 52(b), may Procedure the court re Criminal Cir.1995) (18 1623); U.S.C. affecting “[pjlain errors and defects (1st view DiRico, 1995 WL No. although they rights ... (26 substantial 1995) (unpublished) U.S.C. Cir. Nov. brought attention of the court.” Wells, to the 7206(1)); F.3d v. 63 § United States Olano, 725, v. 507 U.S. 113 Cir.1995) (18 1014). United States (8th § U.S.C. 745 (1993), 1770, 123 L.Ed.2d 508 the Su S.Ct. decided while Gaudin was Because 52(b) require preme Court construed rule appeal pending, he is direct was McGuire’s (1) showing there was error and no that that case as the rule of entitled to invoke (3) waiver; plain; and the error was Kentucky, 479 U.S. controlling. v. Griffith the defendant’s substantial the error affected 708, 716, 314, 327-28, L.Ed.2d 107 93 S.Ct. 730-31, 113 at 1776. rights. Id. at Oreira, (1987); v. 29 F.3d United States 649 satisfied, are Provided the three elements Cir.1994). (5th 185, jury was 188 reviewing has discretion to correct court find that the form it must instructed error when the error the otherwise forfeited or mis a material omission 8300 contained fairness, integrity, or “seriously affects the (instruction 36), fact but statement of judicial proceedings.” reputation of public that, though even jury further instructed was omitted). (internal quotations Id. required materiality, the issue the indictment jury question to decide” “not a was A. Plainness and Gaudin’s (instruction 20).5 jury was likewise Gaudin’s Change in the Law that, required the offense while instructed that, light of Gau material, disputes one materiali No to be the false statements Gaudin, din, See jury error. jury. instructions ty question for the was not a - 160, 162- Calverley, 37 F.3d at -, v. at 2313. 115 S.Ct. Gaudin U.S. trial, Circuit the Ninth specifically At the time of McGuire’s Although 20 6. 5. instruction related involving 5, prosecutions 18 U.S.C. .exception for instruction on materi count there is no other - apparently limited to that statute. sufficiency was ality charge. evaluate the in the We Flake, 535, (9th 537-38 746 F.2d United States v. with reference to instructions 1225, denied, Cir.1984), Welch, U.S. 105 S.Ct. cert. charge. 810 F.2d United States v. entire 485, 1220, (1985); denied, Cir.), (5th see also 84 L.Ed.2d 360 484 U.S. cert. 28 F.3d 945. 98 L.Ed.2d 376 108 S.Ct. - Cir.1994) (en (5th banc), denied, Any cert. other compromise construction would principle the well-settled U.S. -, that criminal defen 115 S.Ct. 131 L.Ed.2d 145 dants changes are entitled to the of Oreira, benefit (1995); 29 F.3d at Plain errors the law announced while their cases are are clear and are those that obvious under pending See, e.g., on direct review. Olano, law. 507 U.S. at Griffith current Kentucky, tried, S.Ct. at 1777. When McGuire was (1987); Oreira, 29 F.3d at 188. precedent materiality dictated that existing deny To a criminal defendant the benefit of a of law for the court. At that clearly departed rule that from well-settled time, instructions, any contrary, law merely to the on the basis that affirmatively which removed that issue from he probably failed to make a futile and frivo consideration, jury’s was neither clear objection, lous does not accord with basic Now, course, nor obvious. of Gaudin makes fairness. do not We decide whether error patently that error clear and obvious. merely that was undecided or unclear at the trial, subsequently time of becomes clear “plain The issue then becomes whether appeal, subject to review for er ness” is measured the time of trial or at See, e.g., ror. Hurley, States that, appeal. of time We conclude when (1st 1, 14 Cir.1995) (“[t]his F.3d case does not existing there is no error under law at the present the conundrum of a failure to trial, time existing error under by wholly followed unexpected change in decided, plainness law law”). That issue will be left for another 52(b) prong of Rule is satisfied. Olano ex day. issue, pressly declined decide this but the many We take comfort in the fact that tipped by stating Court its hand our similarly sister circuits have concluded minimum, Appeals “[at] Court of that when there has change been a in the 52(b) pursuant cannot correct error to Rule law, provisions must be made such that unless the error is clear under current law.” whether the error is can be determined Id. Our recent en banc decision in Calver with reference to existing at the time ley, which did not involve in the appeal. Walker, United States v. nature of error from the time trial to the Cir.1995), appeal, contrary.7 time of is not to the Cal verley language tying omitted “current law” Keys, United States v. Appeals” to the disposition, stating “Court (9th Cir.1995); 809-10 United States v. Re 52(b) that “‘[a]t Rule a minimum’ contem tos, 1220, (3d Cir.1994); 25 F.3d 1230 United plates an error which was ‘clear under current Cir.1994), ‍‌‌‌​​​​‌​​​​​​​​​‌‌‌​‌​​​​​​‌‌‌​‌​​‌‌​‌‌​​​‌‌‌​‌‍Viola, 37, (2d States v. 35 F.3d 41-42 la w' at time of trial.” The Court - denied, U.S. -, rt. 115 S.Ct. ce 1270, went on to Olano’s failure to decide footnote (1995); 131 L.Ed.2d 148 special presented case there is Jones, (7th 165, Cir.1994); v. 21 F.3d 172 change in the law between the time of trial 1128, United States v. Washington, 12 F.3d - appeal. and the time of Calverley, See (D.C.Cir.), 37 denied, U.S. -, 1138 cert. F.3d at 98, (1994).8 162-63 & n. 18. 115 S.Ct. 130 L.Ed.2d 47 Al- Calverley pled guilty plain analysis, as to both suggesting counts of his superven that a Calverley indictment. The critical issue in .ing relat- change provides independent an basis for sentencing, guilt ed to not or innocence. reviewing E.g., otherwise forfeited error. United Rhodes, 1449, (D.C.Cir. States v. 62 F.3d 1452 example, 8. For "supervening the D.C. Circuit's 1995). operates exception decision doctrine” as an general requirement We are aware that the that more traditional review under Rule con- 52(b) requires by rigorous plain cerns addressed error that was at the review of time forfeited Baucum, E.g., operative of trial. error are United States v. when a 66 F.3d criminal defen- 362, (D.C.Cir. 1995); 363 dant's failure to United States v. is excusable. Wash denied, 1128, ington, (D.C.Cir.), 12 F.3d 1138 could not have foreseen the in the law U.S.-, Nonetheless, 115 S.Ct. that occurred after his trial. (1994). Some decisions of that Court review conclude that the discretion allowed the Court of plain by supervening changes errors mrde Appeals by appropriate in the Olano is the more vehicle 52(b) law without clear remedying reference to Rule such error. Accord United States offense, it an essential element of the is faithfully court followed though the district any questionable whether there has been jury instructions and the existing precedent constitutionally obtained verdict for harmless given, it is clearly in error when analysis upon. to act See Sullivan v. that the the basis of Gaudin obvious on now Louisiana, 275, 278-81, 508 U.S. 113 S.Ct. unconstitutionally precluded the instructions (1993) (“to 2081-82, considering an essential element of jury from guilty that hypothesize a verdict was never purposes plain is That error the offense. inescapable fact rendered —no matter how 52(b). of Rule findings support might that verdict jury right”). violate the Our own be—would Rights Substantial B. McGuire’s spoken has with a divided voice on the Court not review Finally, plain error is forfeited every issue of whether failure to instruct on 52(b) Rule unless affected able under offense is er essential element “Normally, rights. substantial defendant’s ror, error or error amenable to structural case, every not in the de although perhaps analysis. harmless error See United States showing specific must make fendant Oreira, (discussing 188 n. 6 v. 29 F.3d ‘affecting substantial satisfy prejudice analy applying harmless error conflict 52(b).” Olano, 507 rights’ prong of Rule Garza, sis); 251, 253 F.3d United 734-36, inquiry at 1778. The at Cir.1994) (5th that, (agreeing govern as the when the court reviews error much the same conceded, post-trial change in the law ment trial, under the familiar harm preserved at on an rendered failure to instruct essential analysis, except in those less error error); United States v. Orte element cases, government that it is the bears (5th Cir.1988) (“It ga, 859 F.2d demonstrating beyond a reason burden judge to fail to instruct the error for harmless. the error was able doubt crime, jury on all essential elements of a 734-36, 52(a); Id. S.Ct. Fed.R.Civ.P. requested”), though an instruction is not even such Although many constitutional er at 1778. t. 489 U.S. cer harmless, errors that can be “structural” rors 103 L.Ed.2d S.Ct. which the trial framework within affect the (5th Brown, v. Cir. States subject analysis. to that proceeds are not 1980) (“we precedent divine from this Cir Fulminante, 279, 307-09, 499 U.S. Arizona specifically in cuit no rule that failure 1246, 1264, 113 L.Ed.2d 302 single of a essential element struct open issue of wheth explicitly left Olano error”); Unit per crime se constitutes 52(b) requires that a defendant dem Rule er Bosch, 82-83 ed States at issue is prejudice when the error onstrate Cir.1974) (failure to instruct on an essential Olano, structural. plain error when it is clear element is not at 1778. harmless). Even error was Su analysis authority point appears focuses on the on the preme Harmless error Court Illinois, Pope v. alleged conflicting. Compare error on the verdict effect of to be 7, 107 1918, 1922 497, n. by jury. v. n. S.Ct. actually Sullivan 481 U.S. 503 returned (1987) (“to 278-79, Louisiana, 275, 7, the extent that 113 S.Ct. 508 U.S. 95 (1993). When, may a con 2078, 2081, indicate that prior 124 182 cases to Rose L.Ed.2d if the case, can never stand instructions jury not instructed on viction as in this was 52(b)). Viola, 37, (2d Cir.) ("The other circuits Published cases in better Rule 35 F.3d 41-42 52(b) analysis 52(b) uniformly applied Rule of our have is that Rule is the sole source view objection.”), error, even the D.C. Circuit has not authority preserved Gaudin errors not to correct -, contrary. explicitly held to the - U.S. 115 S.Ct. t. cer 1270, legal fiction that the do not construct a We 131 L.Ed.2d 148 Rather, 1220, Cir.1994) (review Retos, (3d plain at the time of trial. error was 1228 exception require- to that by supervening Supreme to construct an plain intend of error made clearly 52(b) plain in which the law has ment for cases limited to Rule Court decision Jones, changed time of trial and direct between the prinсiples); cases, Cir.1994) plainness of supervening appeal. (although In those rare at the time of alleged be measured error should the law excuses the defendant's failure subject appeal. object, the court’s review is still jury Therefore, provided require do not it to find premise an essential in McGuire’s proper of the crime under the each element defense was that misidentification of Bo they ... proof longer of are no standard livar identity was not material because the of Louisiana, authority”), with good Sullivan v. the client was also disclosed on the form. 278-81, 2078, 2081-82, testimony U.S. McGuire elicited relevant to this (1993) (harmless error anal issue expert, significant from his who had jury ysis when verdict inapplicable experience secured investigation in the criminal divi Winship, of In re violation U.S. sion of the Internal Revenue Service. On 1068, 1072-73, record, present S.Ct. L.Ed.2d 368 the basis of the the district (1970), requires which conviction on the basis court’s denial of Fifth McGuire’s and Sixth offense). every of essential element of the right Amendment to a determination on Gaudin itself did not resolve the issue be every charged essential element of the of government challenge cause the failed to fense was not harmless. The district court’s Ninth Circuit’s determination that the error materiality instruction that was not an issue structurаl, plain identified was both jury, although for the a correct statement of therefore not amenable harmless error given, when constituted analysis. -, U.S. at affecting rights. substantial (Rehnquist, Therefore, J. concur authority pursuant this court has ring). 52(b), Olano, to Rule to correct that error. 734-36, 113 S.Ct. at 1778.

The conflict within our own Circuit makes inadvisable, perhaps impermissible, C. Remedial Discretion conclusively resolve in this proper ease the scope appellate 52(b) of review when the district permissive, “Rule mandatory.” Olano, court fails to instruct the on an essential 734-36, 507 U.S. at 113 S.Ct. at 1778 (when Regardless element of a criminal offense. liberty the life or aof criminal defen structural, whether such an error stake, McGuire dant is at courts have the specific that, showing made a factual such authority to correct otherwise forfeited error case, circumstances the district when it is and affects the defendant’s court’s failure to instruct on the rights). issue of substantial Whether materiality was error which did affect should be corrected lies within the sound rights. his substantial appellate discretion of the courts. Id. at 734-37, 113 S.Ct. at 1778-79. The Materiality Mcguire’s was critical to de Court instructs that remedial discretion un fense at trial. As to the first form 52(b) der only Rule should be exercised government alleged that “falsely “ ‘seriously fairness, the error аffects the in identity stated the of the individual from tegrity public reputation judicial pro actually whom the cash was received and ” ceedings.’ Id. at 113 S.Ct. at 1779 person failed to disclose the on whose behalf Atkinson, (quoting United States v. the transaction was conducted.” As to the (1936)). 80 L.Ed. 555 form, government second alleged only Whether our remedial discretion should be “falsely identity that McGuire stated the particularized exercised is a inquiry that nec the individual from whom the cash was actu essarily depends upon specif the facts of the (1) ally argued received.” McGuire at trial: ic case legal prejudice as well as the extent of subjectively money he believed the imposed upon Calverley, the defendant. See being delivered to him Bolivar rather than Moreover, 37 F.3d at 164. may an error Flores; and that once he disclosed Flores’ affect rights the substantial of the defendant 8300, name the second form the internal rising without also to the level that it “seri revenue service would not be misled the ously fairness, affects integrity public the provided information in that form. See reputation judicial of proceedings.” Id. - at -, (a U.S. 115 S.Ct. at 2313 statement is material if it has a natural ten We are convinced that the circumstances dency to influence the decision of the deci of this case merit our exercise of remedial addressed). sion-making body First, to which it conviction, discretion. the statutes of

1405 6050I(f)(1)(B), 7206(1), § expressly § re U.S.C. combination with § and both 6050I 7206(1), § requires which a show materi 26 U.S.C. quire statements at that the issue ing of willfulness. contends that Taylor, 66 McGuire States v. Compare, United al. Cir.1995) by refusing give court erred (9th the district (distinguishing Gau- F.3d 254 willfulness, requested his instruction on materiality an that is neither din on the basis which was based the Court’s implicit 18 an element of U.S.C. express nor - States, holding in v. United U.S. 287). Second, materiality § of the McGuire’s Ratzlaf (1994). -, 655, 126 114 S.Ct. L.Ed.2d 615 identifying payor Bolivar as the statements At the provisions issue of part of critical defense was a McGuire’s Ratzlaf Secrecy Act impose Bank which on financial conviction, subject the of count of the reporting obligation institutions similar to testimony at conflicting trial. Considered by § imposed 60501. Title 31 U.S.C. whole, presents a factual the record serious § structuring 5324 states offense for materiality regarding of the reporting require to evade transaction the statements. United States McGuire’s ment, specifies § penal while 5322 criminal Cir.1995). (9th 801, Keys, F.3d 811-12 67 § for violation ties -willful of 5324. Like Third, dis refusing to exercise our remedial McGuire, charged Ratzlaf was the both with error identified cretion to correct purposefully evading obligation of offense result, only in the denial not this case would provision, penalty re and with which оf Fifth Amendment McGuire’s Sixth showing Ratzlaf, quired a of wilfulness. principle in an abdication of the rights, but at -, 114 S.Ct. at 657. held U.S. Ratzlaf adjudicate pending cases before this that we statutory that the formulation of the offense fight “in our best on direct review Court (§ 5324) § required govern both 5322 understanding governing constitutional jury proof ment instruction on the Kentucky, 479 U.S. principles.” Griffith willfully, of whether Ratzlaf i.e. with issue 107 S.Ct. unlawful, knowledge that his was conduct case, of this Given circumstances § 5324. Id. 114 S.Ct. at violated failure to conclude that district court’s 663.9 materiality seriously affected the instruct on and, integrity of trial fairness and does con provide Ratzlaf judicial potentially, public reputation of trolling prosecu definition willfulness Griffith, proceedings. See 7206(1). Willfulness, § tions under 26 U.S.C. (“failure newly apply at 713 section, purpose of that is defined as for the constitutional to criminal cases declared rule legal the intentional violation of a known norms pending on direct review violates basic duty. Pomponio, States v. United adjudication”). ex of constitutional We will 10, 11-13, 23-24, L.Ed.2d our discretion so as to not let the error ercise Charroux, conviction is reversed and stand. McGuire’s ‍‌‌‌​​​​‌​​​​​​​​​‌‌‌​‌​​​​​​‌‌‌​‌​​‌‌​‌‌​​​‌‌‌​‌‍Cir.1993). jury Although the proceedings the case remanded further definition, precise given was opinion. with this consistent adequately issue of was instructed on the Instruction an instruction willfulness. III. Refusal to Deliver Ratzlaf counts, applied charged to all Willfulness Instruction specific on the issue of intent: charged are seri- Having concluded that the case must be The crimes in this case retried, require appropriate proof specific it is to address at least ous crimes which that relates to of convic- before the defendant can be convict- one issue the count intent intent, implies, likely Specific term tion and is to recur on remand. ed. as the general more than intent was convicted for violation of means H.R.Conf.Rep. Cong., Sess months decided 103d 2d Less than six after See Ratzlaf in, U.S.C.C.A.N.1977, Congress Secrecy (1994), amended the Bank Act in- reprinted provision previously corporating penalty co- (restoring Congressional intent" “clear requirement reporting into the dified as require culpable than a no more conduct by redefining § 5324 and the elements of the reporting requirement). purpose to evade the any requirement offense to exclude of willfulness. specific in- act. To establish likewise reviewed for the McGuire’s commit prove appeal jury must that the claims on that the government the instructions tent knowingly impermissibly did an act which the allowed conviction on the basis defendant forbids, intending disobey purposely jury of either form 8300 and that the law instruc- law. disregard guilty. Having the tions directed a verdict of or arguments considered the and the entire rec- charged: in Instruction And ord, persuaded we are that failure to review “willfully” in The word these instrue- appeal “seriously those claims on does not act was means that the committed tions[ ] fairness, integrity public reputa- affect the or specific with voluntarily purposely, judicial proceedings.” tion of forbids; something to do intent say, purpose bad either to that is with CONCLUSION disregard disobey negli- or the law. Mere gence, gross negligence, even suffi- reasons, foregoing For the con McGuire’s cient establish willfulness. § viction for violation of 26 U.S.C. 6050I and person good If a in faith believes that an 7206(1) § 26 U.S.C. is REVERSED and the return, him, prepared by income tax case is REMANDED to the district court for truthfully reports taxable income and proceedings opin further with consistent taxpayer allowable deductions under ion. laws, he the internal revenue cannot be “willfully” making guilty subscribing WIENER, concurring specially: return. false or fraudulent I Judge concur in the result in reached The district court did not abuse its discretion however, opinion; respectful DeMoss’s fine I by refusing requested McGuire’s instruction ly disagree key aspect analysis. with a of his on the issue of willfulness. particular, when both the trial court’s ruling also that Instruction We note and the defendant’s failure to conviction, relating ruling fully to the count of neither explained are and excused specific by law, requires findings supervening change identifies nor on I not, required below, fully the essential elements conviction for the reasons stated more 7206(1). remand, § upon under On if the visit case that defendant the burden of retried, required Accordingly, join must be to find all error review. I do not of' Judge the essential elements set forth in either the last sentence of Part I of 6050I(f)(1)(B) 7206(1). § § opinion (holding DeMoss’s case) applies analysis in this or the set forth Finally, claims on McGuire also Yet, in Part II. despite the differences support the evidence was insufficient to his way there, get that we we reach the same unduly prejudiced conviction and that he was result: McGuire’s conviction for violation of prosecutor’s improper closing re- 7206(1) § 26 U.S.C. 6050I and 26 U.S.C. Having marks. reviewed those claims under reversed, vacated, must be his sentence review, applicable standards of we find his ease remanded for a new trial on those are, therefore, no reversible error. There no charges. jeopardy double barriers to McGuire’s retrial on remand. conclusions Our as to these necessarily ap- issues are limited what

pears voluminous, present, rather rec- INTRODUCTION ord. Consideration was not limited to the testimony agents blue, of the undercover and the overturning long- Out law transcripts circuits, their conversations with settled this and all other Gaudin,1 panel’s disposition Court, in United States v. McGuire. This sufficiency obviously when, claim will prosecution held that in a criminal binding any subsequent ap- materiality of no effect is an element of the crime peal charged, should be retried. requires We have the Constitution that the - U.S. -, thereby jury instanter and avert by the its own errors decided materiality element be fact, unnecessary appeals multiple judge as an issue trials. not an issue Rule). (hereafter, In this Consequently, the defendant is derelict Gaudin lawof issue: As bring a narrow a correctable error to the we must decide and fails to appeal, attention, case withheld judge in McGuire’s we deem him to have for- trial court’s jury and materiality from the Accordingly, a feited the error. to secure himself, forfeiture, should we reverse despite that issue appeal decided reversal on his we ques- positing conviction? require the defendant to establish that the tion, presents this court with unobjeeted-to error was so extreme that it that is clarify a broader issue opportunity short, rights.3 In we affected his substantial review unob- How do we sure to resurface: sandbagging not want the trial do defendants jury charges, evidentiary rulings, jeeted-to judicial judge wasting and then resources clearly unobjectiona- like, that were and the “gotcha” appeal. with reversal post “error” trial that have become ble at supervening change in the When there is change in the supervening trial virtue of here, law, however, as was none of there issue)?2 (hereafter, Gaudin-type More law all, pre- present. are After these concerns change in supervening specifically, when objection would have been summari- Gaudin (and unquestionably should explains the law court, pur- ly by the district so no overruled excuse) objection, do of a trial the absence judicial economy by “penal- pose of is served (1) under the Gaudin-type issues we review failing izing” perform defendant thereof, variation rubric or some plain error objecting act of the hollow and obnoxious rubric, just error under the harmless or precedent to the con- the face of well-settled objection contemporaneous if a as we would (unless trary at the time of trial there was Judge DeMoss concludes had been made? expect change that a the law is reason to reviewed Gaudin-type issue should be that a cert, advisory offing, e.g., pending, in the Instead, rubric. under mill, in the a bill committee recommendations Gaudin-type as if there review a issue winding way through its objection, contemporaneous been a had like). Congress, or the ultimately apply the harmless thus would analysis. II Gaudin-type issues under the To review patently me as plain error rubric strikes DISCUSSION logically antithetical unfair to defendants and Apply concep- Both purpose error. to the Plain ERROR Review? A. Must We plain error rule tually practically, 52(b) 1. How Rule Works judicial encourage and facilitate intended issue, must decide a threshold require to make As efficiency. We a defendant or States v. Olano5 objections so that the dis- whether under United contemporaneous both, Calverley,6 ap- our opportunity to correct United States will have an trict court trial, pre- type objected and thus to its omission the second time we have seen this 2. This is review). year. problem served issue A similar arose issue in the last Ratzlaf States, - U.S. -, after v. United Ratzlaf 52(b). (1994) (willfulness 3. Fed.R.Cr.P. S.Ct. 5324(3) requirement mandates of 31 U.S.C. 52(b) follows: government prove, jury 4. Rule reads as and the be in that the structed, knowledge with that a defendant acted affecting or defects Plain Error. Plain errors unlawful). structuring that the he undertook although they may rights noticed substantial larger yet issue in had to decide this We have brought attention of the court. to the were See, e.g., United States v. the сontext of Ratzlaf. Garza, (5th Cir.1994) (govern 5. 507 U.S. (1993). 123 L.Ed.2d ment conceded instructions -, denied, Ratzlaf), - U.S. under cert. (en banc), (5th Cir.1994) 6. 37 F.3d 160 132 L.Ed.2d Oreira, (5th Cir.1994) (defendant requested proper instruction and 1408 authority Gaudin-type “plain” error is to review is- and “affects substantial

pellate 52(b), authority rights,” appellate to Rule or whether we an court has sues is limited the authority required vacate, to review such but is not independent have to reverse or to do so.13 Olano, Recently, directly. “errors” general appel- our Supreme clarified Court 52(b) authority under Rule to review

late Apply 2. Most Circuits Plain Error unobjected-to The Court identified errors.7 criteria, of which it characterized three each Judge opinion Judge DeMoss in his appellate authority”8: as a “limitation join majority Smith his dissent of the “error,” First, must be or deviation there in concluding plain circuit courts that error rule, which has not been legal from a applied Gaudin-type review should be to is- Second, waived.9 “plain,” the error must be that Olano seems agree sues. Those courts minimum at a means “clear under which require plain applied to that error review be Third, plain error must current law.”10 to all unobjected-to errors.14 This conclusion rights,” normally substantial which “affect[ ] (1) following syllogism: derives from the Un- showing prejudice.11 requires a Olano, errors are subjеct der all forfeited (2) review; plain Gaudin-type issues 52(b), plain In error review under Rule error; is & ergo apply we must with harmless error review under contrasted forfeited plain Gaudin-type review to 52(a), issues. the defendant bears the burden of Rule agree if I premise, Even had with the first persuasion.12 The three Olano criteria are my writing separate- they entire motivation of necessary require alone do not ly my abject disagreement is unobjected-to with the second error. court to correct premise: logic All if prerequisites is defied we hold that a all three are estab- Even when lished, Gaudin-type issue is the decision whether to correct “forfeited error” for court’s discre- contemporary objection. Wholly lack of a appellate error falls within the 52(b) short, tion. from the situations in Olano permissive, distinguishable Rule not (but waived) Calverley, mandatory: If forfeited the court’s treatment of mate- Olano, 732-37, 7. See 507 U.S. at 113 S.Ct. at 13. Id. 1777-79. 954, Lopez, 14. See United States v. 71 F.3d 960- 732-34, Calverley, 8. at Id. at 113 S.Ct. 1777. In (1st Cir.1995); Viola, 61 United States v. 35 F.3d recognized explained we these three criteria and (2d Cir.) 52(b) (discussing 41-42 Rule versus circumstances, "exceptional appellate that independent authority Gaudin-type to review is may, justice, in the interest of courts notice er- concluding sues and "[t]he better view is made”; objеction rors which no has been 52(b) authority that Rule is the source sole of our however, qualified we also that statement in the preserved by objection.”), to correct errors not by stating next that "[s]uch sentence circum- denied, -, cert. - U.S. 115 S.Ct. 131 sharply stances are circumscribed Retos, (1995); L.Ed.2d 148 United States 25 requiring unobjected-to standard er- (3d Cir.1994) ("Because F.3d Retos 'plain' rights.’" rors be and 'affect substantial failed to to the [which instruction (emphasis 37 F.3d at 162 omitted). added & footnotes trial, now erroneous under our re Ratzlaf] view is limited to error under Federal Rule 52(b)”); Although Criminal Procedure three Olano criteria have been States Jones, (7th Cir.1994) (holding 21 F.3d described Court and this court though supervening appellate authority change that even as limitations on in law ex review errors, unohjected-to object, unobjected-to expressly cuses failure to all neither court has errors 52(b) subject provides appeal); are held that Rule error review on exclusive au- thority unobjected-to review United States v. or means to errors. Cir.1994) (en banc) ("Because Gaudin did not Olano, 732-34,

9. U.S. at 113 S.Ct. at 1777. object to the ... instruction must ... deter ”); ‘plain mine whether this error was error.' 732-34, 10. Olano at 113 S.Ct. at 1777. Walker, (11th Cir.) United States v. 59 F.3d 1196 law, (Regardless in the "we review Olano, 732-36, 11. 507 U.S. at 113 S.Ct. at 1777- preserved error.”), issues not below for 78; - Calverley, denied, F.3d at 164. cert. Washington, United States v. Olano, 1778; (D.C.Cir.), 507 U.S. at U.S. -, Calverley, 37 F.3d at 164. something they else. Whatever else viewed must-be trial —when riality then, be, way they not errors as of the time may law as it existed light of the must —was Judge tells us we trial. Smith had Consequently, McGuire all. error at not have ruled other The trial court could object and thus he could nothing to which did, error; way than so it committed no fallacy in the logical This nothing to forfeit. failing object to to that which was non- fatally syl- produces a flawed premise second objectionable, the defense committed no er flawed conclu- producing the logism, in turn by or forfeiture. Thus it ror —either waiver review to apply plain error sion that we must a badly misleading a fiction to label Gaud we attach eon- Gaudin-type issues. Before Quite simply, in-type issue as error.17 we labels such as “forfeited clusionary tags and square try to force this Gaudin should error,” proper that we meet and it seems peg plain error hole drilled into the round and examine the definition. pause instead, pro Calverley; we should Olano separate limited to carve out a ceed Was The Error? 3. Where Gaudin-type “errors” square hole into which Olano, articu was careful to the Court fit, proper standard under then define the and forfei difference between waiver late the legal them. In the vernacu which we review failure to is the ture: “Whereas forfeiture lar, Calverley “distinguish аre Olano timely right, waiver assertion of make the follows, Gaudin-type issues. It able” from relinquishment or abandon ‘intentional is the then, that as the issue we now face was ”15 though right.’ Even we a known ment of trial, our at all at the time of review forfei categories have two clear —waiver error, to should not be restricted in this does presented issue ture —the cases should not be constrained we was no logically into either. There not fit interpreting that standard. at time of the case law the waiver because beyond cavil that no defendant trial indicated Supervening B. The Decision Doctrine (or anywhere else for in this circuit Circuit) matter, right had a even in the Ninth 1. The D.C. Circuit question of to have a determine Circuit, “supervening deci- In the D.C. Moreover, nothing was “in the materiality.16 appears to allow a direct sion doctrine” drawing boards” works” or “on the Gaudin-type of a true harmlessness review major that a put anyone have on notice doctrine, appellate Under this issue.18 consideration. change in the law was under not raised at trial can consider issues court “error,” So, no just as he waived if “changed the law supervening decision has How could a defendant forfeited no “error”: law was so well appellant’s favor and the “right,” object of a timely to the violation any attempt of trial that settled at the time pellucidly made all case law to date point- appeared have challenge it would “right” Thus it is no such existed. clear that justifi- two offered less.” The D.C. Circuit Gaudin-type issues are nei that if axiomatic error, supervening decision doctrine. they cations for the error nor forfeited ther waived (cita Washington, 12 F.3d States v. at 1777 18. See United at 15. 507 U.S. denied, omitted); (D.C.Cir.), Calverley, - U.S. 37 F.3d at 162. cert. tions See also (1994). Swaim, See, e.g., States v. 16. United (5th Cir.), Baucum, See also United States 19. Id. 1139. curiam) (D.C.Cir.1995) (per 66 F.3d (“[Ujnder doctrine, supervening-decision curiously analysis conve- Judge has a Smith's at trial 'where a an issue not raised will consider fiction, relationship giving rise nient to this changed the law in supervening has decision egg" problem. For as a “chicken or what see appellant’s law was so well-settled favor and the begins proposition that though with the even he attempt challenge standard, trial that at the time of applicable he ulti- is the ”); pointless.’ appeared have it would mately was no error at trial. concludes that there Rhodes, (D.C.Cir. (1) there an first: Which comes 1995) (same). error, apply error review? do we or unfair, First, precise and even application ‍‌‌‌​​​​‌​​​​​​​​​‌‌‌​‌​​​​​​‌‌‌​‌​​‌‌​‌‌​​​‌‌‌​‌‍it would counter- of the doctrine but with a productive to the efficient administration of negative pregnant implying applicability its justice, expect defendant involving truly to a situation unforeseeable existing law is trial when so clear change in the law. any possibility of success.20 forecloses Sec- Indeed, Rhodes,24 ond, appellate courts consider unless the ef- panel different of the D.C. Circuit embraced supervening of a decision such a situa- fect supervening decision doctrine and held tion, will be denied the defendant the benefit “[ajccordingly, we [defendant’s address unob- (This the law.21 second jected-to Signifi- error] the merits.”25 every prediction would come true time if we 52(b) cantly, says nothing Rhodes about Rule position were to follow the advocated in to- review, strongly suggesting dissent). day’s Regrettably, the D.C. Circuit (1) supervening the decision doctrine yet made clear whether this has not doctrine (2) 52(b), operates provides outside Rule and only operates within the limitations of Rule independent authority an to review that rare 52(b) independently separate authority as unobjected-to of breed “errors” which are procedure reviewing Gaudin-type for is- produced by post-trial, true unforeseeable directly for sues harmlessness. changes in the law. Washington22 v. for ex- ample, panel the a of D.C. Circuit recited the 2. Follow the D.C. Circuit’s Lead standаrd, proceeded error then to de- path enlightened by would follow the the supervening fine the decision doctrine. The D.C. Circuit and supervening hold that the Washington analysis of structure the pertains, decision serving pre- doctrine to appear imply thus that the doctrine must appeal serve an issue for 52(b) relatively the applied be within the confines of Rule following rare instances however, when the factors co- only. Ultimately, Washington the (1) incide: law that is panel apply well-settled and thus declined to the doctrine to the (2) unobjectionable alleged at the time of trial superven- facts before it because the is (3) (4) changed ing warning during decision was determined not to a without be direct result, “change” in law.23 analy- appeal. By changed the As the I mean reversed or overruled, sis is aborted and we merely are left without a not “fine tuned” or clari- Washington, 20. 12 F.3d at any 1139. struction was not so well-established that objection According would have seemed futile. court, Id.; Washington the appeals Kentucky, no court of had 21. 479 U.S. Griffith upheld (1987) (“We “strong jury the belief” instruction at the S.Ct. 93 L.Ed.2d 649 therefore time of trial and several cases in that circuit hold that a rule for the conduct of criminal put should have the prosecutions applied defendant on notice of the retrоactively is be to all cases, federal, deficiency of such an instruction. Id. pending at 1139. state or on direct review final, That cannot be said of yet exception McGuire and “materiali- or not with no for cases in Thus, ty” pre-Gaudin. supervening the decision which the new rule constitutes a ‘clear break' Baucum, apply. doctrine did not See also past.”). with the (reaffirming availability superven- F.3d at 364 of doctrine, ing declining apply decision but (supervening change 22. 12 F.3d at 1138 in the Washington: challenging reasons similar to instruction). jury Washington reasonable doubt constitutionality the of a new statute would not challenge jury involved a to a instruction direct- futile; (2) have been defendant on notice because ing jury guilty the that it could find the defendant previous challenge successful). had been “strong if the evidence caused them tó have a guilt. Washington belief" in the defendant's did trial, (D.C.Cir.1995). urged panel 24. but 62 F.3d 1449 on This ad Louisiana, States, applicability dressed the Sullivan Austin v. United S.Ct. (1993), supervening 509 U.S. (1993) 125 L.Ed.2d case, law, Department changed required decision the Revenue Montana v. -U.S. Ranch, despite objection. reversal the lack Kurth In Sulli- van, (1994), (D.C.Cir.1995). Court the held that a instruc- decisions, equates "beyond Both urged, which of these tion reasonable doubt” defendant "strong constitutionally supervening changes with belief” deficient. the law of double jeopardy. 23. The court held that at the time of trial the Rhodes, constitutionality "strong belief” in- 62 F.3d at 1452. trial, Second, applies. present, he all factors are looks to

fied.26 When and, case the benefit of law at the time of trial would be entitled to as defendant trial, change.27 supervening supervening change supervening The came after he Third, that, explains points and excuses finds no he out change in the law both error. as result, objection necessary precondition an the defendant. the absence of second Accordingly, plain— an issue as error review—that the error be I would treat such preserved appellate is not He though it satisfied. then concludes that the had been review, precondition test for harmlessness rath- failure meet this has his and would “tied scrutiny. hands” he cannot apply plain than review issue. Es- er sentially, Judge Smith uses error re- analysis Although my would treat sub- view to benefiting bar defendants from from as ject trial and issue as a non-error at change. supervening If we follow this my position appeal, is consistent pass” approach, only “cut ’em off at the precedent. When ma- with relevant McGuire denied benefit of teriality viewed as issue in the instant case is every henceforth criminal defendant will nec- trial, there no error under оf the time of essarily superven- denied the benefit of a however, circuit; the case law of ing law. This cannot be. viewed of the time of the same issue is appeal, an has materialized out of “error” 3. Burden Proof solely Supreme Court thin air because the To of conviction avoid reversal a under prior precedent. other has overruled review, government harmless must error the trial, words, pre-Gaudin at there McGuire’s establish that the defendant’s substantial error; post-Gaudin, appeal there was no rights all were not affected.28 For intents supervening is “error.” The decision both purposes, Judge DeMoss’s standard and the this and excuses ab- creates distinction my proposed except standard are the same objection. contemporaneous Thus sence of proof place that we the burden of on the supervening should the decision doctrine rights oppo- affected” issue on Gaudin-type “substantial interposed preserve is- to the DeMoss, parties. Judge by by remaining site defini- appellate sues for review because rubric, plain they only within the stricture the error tion can arise after trial and before appellate prov- burdens with the task of procedures. of all The the exhaustion defendant that, affected, аppellate ing rights is as an his substantial were “bottom line” unless I, following by supervening the court we come forward with a new rule while decision now review, procedure, harmless error no criminal defendant will ever doctrine’s supervening require government to that the receive the benefit of a the establish Griffith rights af- change the law. defendant’s substantial fected. that, genu- precisely is the with This flaw I respect, Judge The advocate here is not

ine discern Smith’s dis- burden-shift examination, True, faced precedent. His literal as of the time without with sent: law, trial, produced post- supervening changing decision the the the “error” plain trial sea in the law that no Second Circuit sticks with the error ensures slight yet fiction. But it does with a defendant will ever receive benefit from so significant proof supervening change in law. He twist: The burden of under the first that, analysis objection shifted the as there was no at the is to concludes Kentucky, significant important my find it to 26. I both Griffith analysis Supreme (1987) (requiring the Court in Olano and 708, that crimi- Calverley open this court left changes nal defendants receive the benefit apply review whether should “where governing prose- of criminal conduct at of trial was unclear the time cutions, during pendency those at least made applicable becomes clear on because the appeal). of his For, case, has the instant law been clarified.” trial, just the "error" was not it was unclear 52(a). 28. See Fed.R.Cr.P. all; applicable not error and the law has not “clarified,” changed just it been has been entire ly. SupeRvening requiring it government, to show that the C. The Decision Doctrine not affect the defendant’s substan- error did and McGuire matter, rights.29 practical As a tial this is ease, In McGuire’s all elements of the su- to, as, if very not the same the treat- close pervening present, decision doctrine are proposing. I am ment government cannot establish that justifies Significantly, the Second Circuit materiality failure to send the issue to the by contrasting its burden shift harmless er- jury was harmless. Under the law of this ease, ordinary ror and error.30 In the trial, circuit as it existed at the time of if it is clear at the time of trial that an right did have the to have the evidentiary ruling an instruction or is errone- materiality.33 decide the issue of Dur- ous, the defendant knows or should know ing pendency however, appeal, of his object. And, duty if that he has he fails very Court reversed that and in law object, legal right he forfeits his to have doing gave right so to all criminal defen- impeded he the error corrected because has dants, including McGuire. McGuire’s failure judicial process by failing prompt explained and excused opportunity trial court and afford it the time- supervening Thus, change in the law. ly ordinary to correct the error. In that Gaudin-type case, issue should be eminently it is fair hold a defendant though preserved, treated as accountable for his failure and to had been deter de- strategically withholding authorizing fendants from review under the harmless error objection ap- rubric, in order to seek reversal on not under error. peal.31 Generally, an error is harmless if the re- Conversely, supervening when a decision certain, viewing court viewing after law, truly changes analysis well-settled record, entire that the error did not affect dramatically. changes A defendant has no the rights.34 defendant’s substantial not- As object duty jury charge to to a that is indis- DeMoss, by Judge ed vigorously putably supported by established law. Obvi- materiality Throughout contested the issue. ously, objection produce an would no self- trial, he insisted that the statements in court, by correction the trial so the absence Indeed, were not material. this was objection of an has no effect on the efficient principal his materiality defense. As was a judicial system. administration of the It fol- hotly disputed element of the offense that, legal right lows no such as existed at charged defense, key and was a issue to the trial, the time of the defendant did not “for- the failure of the district court to allow the “right” by making objection.

feit” a an jury to determine materiality the element of penalize failing To defendants for to chal- indisputably affected McGuire’s substantial lenge precedent only entrenched would en- rights. I hasten to pres- add that alone the courage objections appeals. frivolous ence of supervening decision doctrine Surely, when Judges the source what does not entitle a defendant to automatic Smith and DeMoss call super- error is a reversal; nothing it guaran- does more than vening change, the defendant has not been tee that the court will examine the record as failing in derelict to and should not be a whole to determine whether the “error” proving saddled with preju- the burden of context, retroactively produced by special then, just supervening dice.32 In this in decision 52(a), affected the harmless error review under defendant’s substantial Rule government rights. DeMoss, Judge should Like bear the burden of I am convinced showing that the “error” did not that in this equally affect the case did. I am con- rights. defendant’s substantial only if Judge vinced that Smith’s view of the Viola, Swaim, 29. See 35 F.3d at 42. 757 F.2d at 1534.

30. Id. 52(a). 34. See Fed.R.R.P.

31. Id.

32. Id. SMITH, Judge, E. to reach substan- JERRY Circuit permit him law concurring part in dissenting part: issue, agree that here toо would rights he tial And, although were affected. rights such I. result, might agree on all case we

this proving the burden of regardless of whether concurring in the of the While remainder the defense or prejudice must be borne majority opinion, respectfully from dissent always might not be government, such II, part because I read States emphasiz- importance Thus (5th Cir.1994) (en the case. Calverley, 37 F.3d 160 harmless rather than ing banc), U.S. -, error (1995), respective 1266, 131 analysis, their burdens as requiring us law large clarity consider the of the at the time easily loom in a case proof, could error, of the claimed not at time of aspects. factual with somewhat different Calverley review. holds that error “at minimum, contemplates an error which Ill was clear under current law the time of added, (emphasis trial.” Id. at 162-63 inter CONCLUSION omitted). quotations analysis nal Our of the plaintiff’s Calverley claim in shows that we particularly perverse require I find it “Assuming what we de meant said: without object in face of either to defendant ciding analysis of [the law] studied contrary clearly law to established to the that [the would lead conclusion defen appellate deck the form face a stacked correct], argument dant’s conclusion equally perverse I find it error review. was not obvious when the court sentenced deny apрellate review of defendant Calverley... Consequently, tri neither the change in arising supervening from a issue may judge prosecutor al nor the consid that he is entitled the law: demands failing [the error].” ered derelict in to notice Griffith light changes of all added).1 to reconsideration (emphasis Id. at 165 occurring pendency during the of his short, assessing clarity of a subject irony And I it a cruel appeal. find error, directly claimed we do not consider no plain error review when the defendant occurred; instead, deter- whether trial, the time was committed at only the district court was mine whether following in as it the court either making in an “obvious” error. “derelict” or defense in not inter- then existed legal developments Subsequent are irrele- objection. I posing Consequently, a frivolous vant. adopt separate jurispru- urge this circuit to words, majority, “con- The in its own review dential doctrine for the of Gaudin- exception” Maj. op. an to this rule. structs] specifically, supervening de- type issues— carefully Calverley lays n. out a at 2817 8. forth above—and in such cision doctrine set rules, many bright-line reconciling series of Al- plain to avoid the error rubric. cases overruling precedents of all others: our my though I have to win over of failed either opinions recog- “Although most our have оf my colleagues panel position, on to this to clearly that an error must be evident nized in specially concur in the result reached plain, significant number have omitted separately Judge opinion DeMoss’s and write weight to of given insufficient this element my hope encouraging of the rest of in the today plain equation. error We disavow colleagues adopting well the su- consider holdings all and articulations inconsistent 163-64; pervening champi- at decision doctrine which I see also id. herewith.” F.3d cases). (citing 164 n. overruled today. 163 n. on it, speaking to passage or that while we were our observation that the that issue 1. This clarifies citing we had we were aware that the case Supreme Court had declined determine only subsequent passage intervening precedents. considers not—the relevance of See error time the ambiguous— of the claimed at the n. 18. While that footnote is obviousness at 163 reserving we were district court made it. it could mean either that also summary, Calverley holding we en that we apply decided cases must law as year ago, thorough appeal. banc, in a it is understood at just over the time of We only carefully-reasoned opinion review a claim of if that overrules a forfeited error panel appellant require opinions number of order satisfies the significant result, 52(b), clarify just area of the law. As a ments of Fed.R.Crim.P. this we Calverley gener- corpus or 42 interpreted petition deserves to be consider habeas ously deferentially.2 only U.S.C. 1983 claim our older precedent requirem satisfies a set of threshold II. ents.4 If a claim of meets the dictates rule 52(b), Kentucky, follow we Although majority that an Griffith is correct objection perceived would have as frivo- been (1987), according and evaluate the merits trial, following Calverley the time of lous at understanding our current of the law.5 against policies not cut that under- If lie error review. we were concerned I agree majority Calverley with the is mistakes, primarily fixing with and not with technically point stare this decisis on protecting against judg- derelict defendants present because did not ing, would reverse all errors are intervening precedent. I also understand us, regardless “plain” or “obvious” to application Calverley facts to the appellate judges already have whether other might harsh, appear objection hand as an on similar claims. Whether control- ruled perceived would have been as frivolous. trial, ling is precedent decided before be- Nonetheless, prece- I would own follow our aрpeal, trial and or after tween dent and affirm. happenstance; pure no how we con- matter review, treat duct we will defen- differently at divers

dants times. only therefore

We review forfeited errors fairness, protect integrity, ‍‌‌‌​​​​‌​​​​​​​​​‌‌‌​‌​​​​​​‌‌‌​‌​​‌‌​‌‌​​​‌‌‌​‌‍pub- “the [and] judicial proceedings,”3

lic reputation by ensuring so that criminal

we do defen- not convicted

dants are or sentenced bla- disregard of

tant settled law. But we do not that trials be

insist free of forfeited error.

Application Calverley context

also would be consistent with the line of interpreted recently, this court has appar Most Calver 5. At least three Court Justices fashion, ley Dupa in a similar ently agree clarity that we must look to the (5th Cir.1996). quier, 74 F.3d This Although gov law at the time of the error. us, binding interpretation caselaw as an requirements waived ernment Gaudin, application Calverley. Rehnquist Chief Justice noted that be materiality cause all circuits but one had found only they 3. We reverse even obvious errors law, certainly subject to be a "it is rights affect a defendant's substantial and "seri- dispute whether the error in this case was 'clear fairness, ously public repu- integrity, affect the under current law.’" v. judicial (quot- proceedings.” tation of ing Id. -, U.S. Atkinson, 157, 160, C.J., (Rehnquist, concurring, 391, 392, (1936)). 80 L.Ed. 555 JJ.) joined by Breyer, (quoting O’Connor and Lane, Teague Olano, See U.S. S.Ct. United States v. 507 (1989) (holding 103 L.Ed.2d 334 1770, 1777, habe- (em (1993)) petitioners receive the “new benefit of rules” added). Allen, phasis See also United States circumstances); only in limited Rankin v. Kleven Cir.1996) (applying F.3d 1366-68 (5th Cir.1993) hagen, (deciding analysis light intervening deci qualified immunity against that officials have suits under Gaudin). sion in 1983 if their were reason actions light judicial precedent able in at the time of offense).

Case Details

Case Name: United States v. Jimmy D. McGuire

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 26, 1996

Citation: 79 F.3d 1396

Docket Number: 94-60648

Court Abbreviation: 5th Cir.