United States v. Karl v. David

true, want I didn’t sir. A.' That’s America, STATES UNITED don’t want time. Still money at that Plaintiff-Appellee, money. plain- representative These Id. 1147-49. Defendant-Appellant. DAVID, Karl V. hearing fairness at the clearly conceded tiffs settlement, they did not 94-5754. absent No. in the class com- the claims pursue intend Appeals, damages and no no They claimed plaint. Fourth Circuit. hold, accordingly, injury. I would present Argued Nov. only plaintiffs had no exposure 6,May Decided class action suit. pursue this standing to to reverse decision in the court’s I concur certifying court, order vacate district class, with and remand instruc- plaintiff injunction. I would also

tions to vacate only plaintiffs exposure further hold claims. standing pursue their have no STAPLETON, BECKER, Present: GREENBERG, SCIRICA, MANSMANN, ALITO, ROTH, NYGAARD, COWEN, SAROKIN, McKEE, Judges LEWIS, WELLFORD,1 Judge. District and PANEL REHEAR- FOR PETITION SUR FOR RE- SUGGESTION ING WITH IN BANC HEARING June plaintiffs/appellees Robert petitions al., on behalf themselves Georgine, A. et situated, and of similarly de- all others Products, Inc. fendants/appellees Amehem (other Corporation) for re- than GAF Ltd. judges having hearing been submitted of this Court in the decision participated who judges circuit all the other available and to service, judge concurred no who active rehearing, having asked decision judges of the circuit majority the circuit having voted for regular active service banc, petition rehearing the court rehearing is DENIED. rehearing. grant Judge would SCIRICA only. panel rehearing 1. Asto Kilduff, Morchower, Lee W.

ARGUED: Richmond, Whaley, Virginia, for Luxton & Metcalf, George Appellant. N. Assistant Richmond, Attorney, Virginia, United States Mor- Appellee. for ON BRIEF: Michael chower, Morchower, Whaley, Luxton & Richmond, Virginia, Appellant. Helen F. Fahey, Attorney, Kieran Intern, Grennan, Third Year Law Student Richmond, Virginia, Appellee. LUTTIG, ERVIN, WILKINS, Before Judges. Circuit

OPINION

LUTTIG, Judge: David, by a Appellant, Karl was convicted a form jury making a false statement on by prose- Alcohol, crime made mal accusation of a Tobacco Bureau of submitted distinguished from an cuting attorney as Firearms, of 18 U.S.C. in violation grand jury.). presented that under the now claims indictment David § 1001. subsequent decision Court’s question “NO.” At the this David answered U.S. -, 115 time, embez- was under indictment for David (1995), 444 his con 2310, 132 County, Virginia. The zlement in Caroline the dis because overturned must be viction possible punish- explained the indictment question of submit to the failed trict court for as follows: ments embezzlement Fifth jury despite his and materiality to the Imprisonment for PUNISHMENT: jury a de rights to have Amendment Sixth twenty than one nor more than less crime with of every element the termine jury of or years, or in the discretion the David never charged. Since he was which jury a trying the case without the Court jury court’s instruc district objected to the jail period not in for a confinement plain conviction for tions, his review we a of exceeding months and fine twelve Procedure Rule of Criminal Federal under $2,500.00; either or both. not more than Gaudin, 52(b). light in of agree We answer, govern- of As a result David’s the retroactively all applied to to be is which making charged knowingly ment David with review, v. Ken see direct cases on Griffith department agency a false to a or statement 708, tucky, 479 U.S. in violation of 18 U.S.C. of the United States to instruct the failure § To a violation of section 1001.1 establish of materi jury on the element particular this (1) prosecution prove must that: the Therefore, plain error. ality constitutes to a the defendant made a false statement for a and remand conviction David’s vacate (2) governmental agency; the act- defendant new trial. (3) knowingly willfully; and the false or ed within statement was material to matter I. See, e.g., jurisdiction agency.2 an the of federally licensed been a had David Co., Trading States v. Arch United years six approximately firearms dealer (4th Cir.1993). long- Pursuant to at issue in case: this the incident before precedent, standing the dis- Fourth 1994, month before his federal of March question trict court did not submit the of expire, David ob was to license firearms but, rather, jury, to the instruct- materiality to his license. application renew tained ... element ed that court will decide “[t]he ques of included number application The four, materiality.” regarding Appellant’s following: tions, one of which Supplement Arg. Mot. to at 7. you presently under indictment or Are instruction, though The court’s any pun- a crime district in court for information law, then-existing turned out to be faithful to by imprisonment for a term ex- ishable Gaudin, when, in a unanimous Su- ceeding year? preme that the Fifth Sixth Court held (If explanatory statement yes, attach require element of ma- Amendments or in- showing date of the indictment teriality section 1001 must be submitted to the court in which formation at-, jury.3 at 2320 a for- U.S. pending. “INFORMATION” means Gaudin, 1537, 1546, (1988); provides part: § 99 L.Ed.2d 839 relevant 18 U.S.C. Whoever, at -, any jurisdiction 115 S.Ct. at 2313. U.S. matter within the - agency department or of the United knowingly willfully Gaudin, ... makes States 3.In his concurrence in Justice Chief false, rep- or or fraudulent statements fictitious emphasized purport that the Court did not ... shall be fined this title resentations materiality resolve conflict over whether years, imprisoned not more than five or necessarily § 18 U.S.C. element of both. is, “merely assume[d] rather fact, an of the false clause of element statement materiality is the false 2. "The test of whether - at -, Gaudin, § 1001.” tendency to influence has a natural statement C.J., concurring); (Rehnquist, S.Ct. at 2320-21 influencing agency agency capable or is action Gaudin, U.S. at -, - 115 S.Ct. at 2313 Norris, see States v. F.2d United action.” (“It denied, that conviction this Cir.1984), trader uncontested cert. provision requires that the statements be 'materi see also ”). States, 759, 770, party in the case before us al'.... Neither Kungys v. (“The gives Atkinson, Constitution criminal defendant determine, jury beyond right to have a (1936))). 80 L.Ed. 555 doubt, guilt every reasonable his element explained 52(b), Court also that Rule charged.”). of the crime with which he is On single category “defines a of forfeited-but- authority David now contends error,” reversible is the sole appel source of to a trial in he is entitled new which the late error,5 correct a forfeited question materiality would be submitted to provision unless some other authorizes its jury. Because he raised no correction. Id. at 113 S.Ct. at 1776- the court’s instruction that it would decide 77. materiality, we failure to submit question materiality jury A.

plain error under Federal Rule of Criminal Turning to the first element 52(b). Procedure “plain analysis, error” we have no hesitation concluding that the district court committed II. an error in this Although case. the district Appellate authority to review errors court’s instruction materiality would be brought to the attention of the district by proper decided the court was at the time cognizable court and thus not otherwise on given, it was we now know that the element appeal4 is found in Federal Rule of Criminal materiality in section 1001 must be sub 52(b), provides: Procedure jury. mitted to the U.S. at affecting Plain errors or defects substan- -, 115 S.Ct. at 2320. Since a “new rule rights may tial although they be noticed for the prosecutions conduct of criminal is to brought were not to the attention of the applied retroactively be to all ... pend- eases court. ing ..., on direct review with exception no Supreme recently The Court clarified the cases which the new rule constitutes a 52(b) scope requirements of Rule in ‘clear past,” Griffith, break’ with the 479 U.S. Olano, 507 U.S. 107 S.Ct. at David is entitled to (1993). 1770, 123 Noting the benefit of the new rule for the 52(b) that “the created Rule is determining whether the district court circumscribed,” that, the Court held before Thus, committed an error. the district court appellate court can correct an error not failing erred in question submit the 52(b) 1) requires: raised at Rule “er materiality jury. 2) 3) ror”; “plain”; that is that “affeet[s] rights.” substantial Id. at B. then, at 1776. Even “Rule leaves the question The of whether the error commit decision correct the forfeited error within “plain” ted the district court is is not as Appeals, sound discretion of the Court Olano, easily resolved. and the court should not exercise that discre ‘ “plain” “synonymous tion Court defined as “seriously unless the error with a£fect[s] the ” fairness, or, integrity public ju equivalently, or ‘clear’ reputation of ‘obvious.’ 507 U.S. proceedings.”’” (quoting dicial Although Id. 113 S.Ct. at 1777. 1, 15, Young, States v. “plain” perhaps S.Ct. Court defined the word (1985) 1038, 1046, (quoting clearly as that word can be defined in the questions precedent Waiver, hand, this circuit’s 113 S.Ct. at 1777. on the other is “ Co., Trading element of section 1001. Arch relinquishment ‘intentional or abandon- " 987 F.2d at 1095. right.’ (quoting ment of a known Id. Johnson Zerbst, pro- 4. Federal Rule of Criminal Procedure 30 (1938)). important 82 L.Ed. 1461 distinc- vides, part, party may in relevant that “[n]o tion between forfeiture and waiver is that if a assign any portion charge as error of the (which waivable), right defendant waives a he party objects omission therefrom unless that grounds cannot later raise an on the jury thereto before the retires to its consider provide that the failure to him with the waived verdict.” is, waiver, right is error. See id. That unlike forfeiture, may “extinguish” timely 5. Forfeiture is the "failure to make the an "error” under Olano, right.” 52(b). of a assertion Rule See id. they might suggesting that too well not be analysis, it was plain error

context important question reviewable. on the elliptical somewhat plain must be order of when the error ex- Although the Court does not so state cognizance of the to take appellate court implication pressly, the clear from sentences error, stating passage, and four of the as would be three appellate au limitation on [t]he second expected, appeals that a court of is autho- 52(b) is that the error thority powers under Rule rized to invoke its synonymous with “Plain” is “plain.” an error when the error was to review or, “obvious.” See equivalently, (Circum- “clear” appeal at trial and is also 1,] 17 Young, v.] [470 A). [United States A stance believe that Circumstance We n. n. 14 [105 “ordinary be the case” to which the must (1985)]; v. Fra implicitly through reference its makes dy, [102 Equally “special case.” identification (1982). con We need not 816] clearly, paragraph the final sentence of the where the error was case sider categorically forecloses becomes the time trial but unclear at time of whenever the error is unclear at the applicable law appeal because clear on (Circumstances D), regardless andC minimum, At a has been was clear at the time of of whether clarified. correct an error Appeals cannot And, course, expressly trial. the Court the error is pursuant Rule unless to “spe- declined to decide whether the so-called current law. clear under case,” cial where an error that “was unclear ... at the time of trial becomes clear on added); see also United States (emphasis Id. applicable has been appeal because the law Cir.) (1st Marder, 564, (noting 48 F.3d v. (Circumstance B), clarified” would be review- an be split over when error must circuit able. declining to answer the plain, in the course complicated” question of “considerably more A, C, The contours of and Circumstances — denied, “plain”), cert. is when D, evident, are and that there would be 1441, U.S. -, 131 L.Ed.2d two, first, in the but not in the latter (1995). passage this from Olano Because circumstances as well. these seems obvious understanding “plain” of the so to an central confess that we are less than certain We analysis, plain error requirement of the description from the Court’s what it under- elusive, begin meaning proven so we its has (Circumstance special stood to be the case by addressing passage to this ourselves B). us, however, that, It seems to at least as deceptively complex issues it raises. described, literally special case would only include the circumstance where an error at trial was unclear the time of because of conflicting ambiguous saying In can conceive of at least four different caselaw. We this, envisaged recognize descrip- the Court in this that the Court’s circumstances A) special arguably tion passage: where an error is clear both of the case could be B) including appeal; and at the time of understood as the circumstance the time of trial where, quite “unclear at the time of trial at the time of it was clear where error is C) appeal”; where an that the district court’s action was not at all but becomes clear error, but, consequence error is at the time of trial but unclear as a of a reversal of clear D) law, appeal; the time of or where an error it is clear on that the action trial in fact error. A number of our sister unclear both at the time of the summarily the time of It circuits have even concluded that seems us passage authorizing special contem is best understood as this circumstance is the case See, plated by e.g., review of forfeited errors Cir- Court. United States (7th Ross, 1525, Cir.1996); A, barring 77 F.3d 1539-40 cumstance review of such errors v. 801, D, reserving Keys, v. 67 F.3d Circumstances C and and as United States Viola, 37, Cir.1995); judgment arising v. on whether forfeited errors United States (2d Cir.1994), denied, U.S. -, reviewable, cert. Circumstance B are 131 L.Ed.2d 148 Wainwright Sykes, v. Retos, 2497, 2507-08, (1977). 53 L.Ed.2d 594 Cir.1994). (3d believe, however, that it We short, to allow review under the circum- simply too strained to describe this circum- stance special case would disturb “ stance as one where the error was unclear at 52(b)’s ‘careful balanc[e] [the] need subsequent- the time of trial and the law has encourage participants all trial to seek a ly been least sense in fair and clarified —at accurate trial the first time around generally which we use those terms. We our injustice [and] insistence that obvious be ” said, suppose might drawing upon that it redressed,’ promptly either the traditional common law notion that Young, 470 the law exists and is to be discovered (1985) (quoting Frady, 456 legal the courts or the realist view that the 1592), U.S. at 102 S.Ct. at and would clear, law is never that the error was “un- effectively “extravagant afford the protec- clear”; but we can think of no sense which tion” that the Court has instructed Rule reasonably it could outright be said that the afford, was never intended to id. at reversal of well-established law constitutes a 16, 105 S.Ct. at 1046 (quoting Henderson v. “clarification” of the law. Kibbe, 154 n. (1977)). 1736 n.

Thus, special as we understand the case, precisely it is the circumstance where Indeed, perhaps recognizing the threat it is most obvious that review should not be contemporaneous objection rule that objec If contemporaneous authorized: exist, would otherwise we believe the Court requirement force, tion is to have real in Olano left implication at least an presumably required would be review would not be available (and review would be barred for failure to case. The final sentence of above-quoted object) in the circumstance where the law at paragraph from Olano reads that “[a]t a the time of trial is unclear as to whether minimum” an error must be clear at the time proposed the district court’s course would of appeal if appeals the court of is to have timely objection constitute A error.6 authority to review the error. The introduc- provide such a circumstance would the court tory phrase adverbial “[a]t a minimum” con- an opportunity to question, consider the veys something that more than obviousness possibly error, avoid the commission of an appeal might the time of required also be thereby prevent the need for retrial appellate before an may court review an upon appellate very purposes reversal —the objection error to which no was made at trial. objection contemporaneous rule. certainly, Almost “something more” is a Moreover, declining to review forfeited er (as possibility reference to the to which the rors special under the circumstance of the Court declined to comment the immediate- case also would serve as a disincentive to sentence) ly preceding might that the error forego defendants who would also have to have been clear at the time of reasons, at trial for knowing tactical that trial. they intended to claim on that district they implication against court’s action to which did spe- not review the object constitutes reversible error. cial apparent ease is also from the fact that puzzled ) situated,” 6. We have been and remain “similarly somewhat dant in is not Griffith Grif- why categorically fith, as to the Court did not fore- 479 U.S. at 107 S.Ct. at to a case, special not, close review in the if the Court defendant who did and so a new rule creat- may understood that case as we do. It be that ed for the former need not be deemed Olano, simply implications the Court was unsure of the the latter. 113 Cf. view, however, (“ of its decision in procedural In our principle at 1776 ‘No is more fa- Griffith. holding that a defendant whose direct miliar to this Court than that a constitutional Griffith's appeal pending right may is receives the benefit of a new ... be forfeited in criminal [cases] determining rule for timely right whether the the failure to make assertion of the erred, district court having jurisdiction bears not at all on the sec- before a tribunal to determine Olano, requirement States, ond (quoting the error be it.’" 414, 444, Yakus v. United “plain.” Regardless, we believe that a defendant 88 L.Ed. 834 (as objects alleged (1944))). who to an error did the defen- Ninth, v. (like held. See United States had so paragraph sentence the final Cir.1994) (en Gaudin, opinion) point in the at this discussion entire banc) J., (collecting (Kozinski, dissenting) limitation affirmative of an is an articulation -, cases), aff'd, of, authority - U.S. grant affirmative upon, not (1995). Supreme Court objections which no as to errors to review com that, suggested, if not itself even caselaw reads The sentence trial. made at were materiality should be decided pelled, that minimum, review court cannot aat explained in of law. As the Court a matter at the time of is clear the error unless error Gaudin, that, it could not hold not read does the sentence appeal; jury while still to the must be submitted it is minimum, review an error court can if holding” reasoning “adhering impli- Thus the appeal. time of at the clear States, of Sinclair United might be unreview- errors more cation pro which it 73 L.Ed. appeal, on not just those than able in full. “repudiate” might ceeded be re- more errors than that rather Thus, at -, at 2318.7 In U.S. just plain on those than viewable (or law) trial was time of David’s paragraph words, the Olano we believe other unclear, the law nor was subse no means it read to this effect: as if understood is best quently clarified. appellate authori- on limitation The second that the error be ty synonymous with “Plain” “plain.” may have been At a That David’s claim or, “obvious.” equivalently,

“clear” the Court when contemplation of cor- within the minimum, Appeals cannot the Court however, passage, it constructed the Olano to Rule unless pursuant rect an error think, not, ultimately dispositive of wheth- we [It under current law. clear the error is that claim under Rule may court cannot er review appellate may be 52(b), we are convinced had because the error was also unless correct an error us, the circumstance before Court considered But need “[w]e time of trial. at the clear (in is, this circumstance it would have found question, that wheth- not consider” case) one contrast “where the is authorized er review authorized, should be trial but the time of be- unclear at very suggested reasons that applica- for the same appeal because the comes clear special might review in the there well not be clarified.”] ble law has been case. ob- Allowing Rule review where an in jection have been baseless at trial would apparent that as we under- It should caselaw, allowing case, light then-existing unlike of special does the Olano stand merely the error was “unclear” by review where that raised David. a claim such as include trial, furthers the substantial at the time David’s the caselaw was the time of

At jus- orderly know, in the administration of wrong) interest (although as we now that clear contemporaneous that underlies the ob- was to be tice materiality 1001 under section stated, jection has often rule. As the Court as a matter of by the court law. determined purposes of con- every one of the fundamental the circuit, as other circuit that as well Our protect time, rule is to except temporaneous objection at that the issue had considered materiality prosecu 1001 virtually every held that section to the fact that cir In addition by court as a matter materiality to be the was to be decided tion is determined that cuit had held citation to Abadi was so Supreme of law. The Court’s by that Court caselaw the court and same, significant Kungys Tenth Circuit was v. forced suggested Court in Unit 759, 1537, materiality States, reconsider whether section 108 S.Ct. 99 485 U.S. ed by (1988), materiality question to be decided holding 1001 was a of law L.Ed.2d 839 prior judge consequently its cases overruled § is to be determined 1451 under 8 U.S.C. law, question was a held had relied on a which had judge Sixth as a matter Abadi, Daily, case, jury. v. for the States v. denied, 502 1990), 821, 994, denied, 178, (6th Cir.), cert. 1004-05 Cir. 464 U.S. cert. 180 952, 405, (1991). 86, 354 116 L.Ed.2d U.S. 112 S.Ct. which had 78 L.Ed.2d 95

645 resources, judicial particular by ensuring (1982); Isaac, L.Ed.2d 816 Engle see also 107, 134-35,102 trial courts will have an opportunity 1558, 1575-76, U.S. might errors otherwise 71 L.Ed.2d Kibbe, avoid necessi Henderson v. time-consuming 1730, tate retrial. See Wain (1977). wright, 2508; For, 433 U.S. at S.Ct. at as the Court has Williams, held, petitioner Estelle v. a habeas 508 n. can establish (1976). 3,n. “cause” for his failure to raise a constitution al claim in Requiring objection procedures at trial accordance with the face of state (ie., in accordance precedent contrary contemporaneous with the established would objection rule), and thus raise raising objec result in defendants the claim col frivolous where, laterally here, Supreme as simply they tions to ensure that would re overrules precedent its own ceive on the benefit of later reverses rever “longstanding widespread practice to very sals of precedent kind of waste —the which th[e] Court spoken, has not but judicial resources that the contemporaneous body near-unanimous of lower court objection au rule discourage. was intended to thority Reed, has expressly approved.” time, allowing At the appellate same review (internal U.S. at 104 S.Ct. at quota objection where an at trial would have been omitted); tion compare marks Engle, 456 insupportable way in no frustrates sec (futility 102 S.Ct. at 1573 cannot objective ond contemporaneous objec cause).8 Indeed, constitute the Court’s hold preventing tion rule of counsel from “sand ing that such a claim could be raised even on bagging” the courts withholding a valid habeas in part on very rested same objection from the trial court in order to reasoning that underlies our decision that obtain a new trial when the recog error is plain error review should be available in like appeal, objection nized on because at trial circumstances, namely, that in such a circum unquestionably would have been overruled stance there will certainly” “almost have fact, event. similar reasons to been no upon reasonable basis which a liti allowing those which counsel review where gant objection could have raised at trial or objection at trial would point have been Reed, direct less, Court has recognized the S.Ct. at 2911. possible allowing previously value of implau sible claims to be raised in collateral habeas Accordingly, we hold unlike in proceedings, so proceed that counsel will not literally case described in Ola- to raise in proceedings “any state court no, both contemporane remotely all plausible constitutional claims objection ous rule and considerations of could, day, gain recognition.” some judicial sound administration counsel in favor Ross, Reed v. error review where an (1984). trial would have been indefensible because of law, existing supervening prior decision Recognition law, to reverses that well-settled ren clearly where established law has been re- dering clearly defendant’s claim meritorious. versed also avoids what would otherwise be anomaly significant the that a set of errors— Although we do so somewhat different including the error the instant case— grounds, join recog- our sister circuits cognizable would be on habeas but not review nizing appellate authority review in this cir- review, cognizable on though direct even cumstance. Five circuits have stated justifying burden of federal relief is habeas regardless of the law at the time of an “significantly higher” showing than the nec- appellate may an court error under essary “plain 52(b) to establish error” on direct Rule if appeal. the error is clear on Frady, Ross, (“A ‘plain’ 77 F.3d at 1539-40 error 152, 163-66, 1584, 1592-93, 71 is one that is clear and at uneontroverted Lane, 288, Teague 1060, 8. v. 109 pending would be announced while the case was course, of would not appeal, on direct before thus the conviction present independent bar raising to the claim became final. corpus, in a writ of habeas since the "new rule” 646 Kramer, -, 98, 115 130 v. United States appeal.”); time of Cir.1996) Byers, v. States see also United 1067, 16 740 1074 n. 73 F.3d (en (“The (D.C.Cir.1984) error is Keys, 67 (same); at 810 n. 11 F.3d 1115 F.2d correctability, because banc) of

plain, (Scalia, J., writing plurality); for a cf. Viola, review.”); 35 pending Weiner, plain it became 5 v. 3 F.3d n. United States Retos, (same); 25 F.3d at 1230 F.3d at (1st Cir.1993) ... no error (“Arguably, (same).9 of Columbia The District imposed, where the requirement be] [should plain at the must be an error has held that the blue ruling comes out of Supreme Court’s to appellate court trial in order time of anticipated.”).11 not have been and could 52(b), see Unit Rule the error under correct (D.C.Cir. Merlos, F.3d ed v. States — U.S. -, denied, cert. 1993), objection to the materi any Because (1994); see also Unit trial most as ality at David’s instruction Calverley, 162-63 ed States v. naught, suredly would have been for — (en denied, banc), cert. (5th Cir.1994) II.A, supra because, in Part at as discussed U.S. -, today not to submit it is obvious error (1995),10 adopted a circuit has “su jury materiality to the in a question of doctrine,” allows a pervening-decision see prosecution, false statements court, that before such as in a circumstance — at -, at David has us, issues not raised trial to “consider requirement of Rule satisfied changed has supervening decision a where “plain.” alleged his error be and the law appellant’s favor was law in the time of trial so well-settled C. appeared challenge it would have attempt to Having the district Washington, determined pointless,” denied, (D.C.Cir.), constituted “error” and cert. court’s instruction F.3d cognizable holding case is that the in this courts addressed each of 9. Because these 52(b). explained, Rule that court law at the time As the circumstance where uniformly against defendant’s was trial supervening-decision doctrine reflects the [t]he unclear, claim, unequivocal despite their unfair, principle would be and even that it clarity language of the error at the time jus- contrary administration of to the efficient irrelevant, these courts whether would of trial is tice, object expect at trial a defendant actually recognize appellate review appears existing clear as to where law so fore- literally case the circumstance any possibility success. Unless the close in Olano. To our knowl- the Court described on its own to court out con- reaches actually held such an error to edge, court has no supervening the effect decision sider plain. have been defendant, situation, through no such a own, would not receive the fault of her benefit seemingly Columbia Circuit District of change in law. holding the error must have been rests its Indeed, Washington, at 1139. the dis upon assumption time of trial at the upon supervening- tinction between reliance passage from the Olano that the final sentence 52(b)’s require doctrine strict decision minimum, Appeals the Court of "[a]t reads that one, may merely pedantic be ments itself be pursuant to Rule cannot correct likely remaining Olano factors would cause the law at the is clear under current unless the error "supervening-decision Merlos, be considered under See, e.g., 8 F.3d at 51 time trial." Byers, 740 doctrine” in event. F.2d ("The prong Olano's test is satis- second Cf. C.J., (Robinson, concurring) (noting that given plainly erro- fied unless the instruction plain-error trial."); central deliberations "factors at the time of neous under current law superven (same). figure prominently in the” should also Calverley, see also 37 at 162-63 F.3d believe, however, doctrine). trial,” ing-decision We language "at the time of how- underscored ever, upon "supervening-decision appear sentence from that reliance does not in the Ola- 643^44, may well foreclosed explain supra in this no. As we at doctrine" context 644— language, by injunction court superimposed it would absent Olano’s except may to the under Rule seem the final can refer law not notice an error sentence law). (or provision express at the See time some other 1777; 732-34, Olano, S.Ct. at U.S. at 113 507 cf. Viola, (“The view is at better 35 F.3d 42 Circuit's The District of Columbia rationale our is the source of resorting supervening-decision Rule sole doc- by objection.”). preserved errors not our rationale for correct trine is much the as same

647 rights. turn to affect substantial “plain,” we Ola- Because the Sti- that the error “af- inquiry whether the error third rone Court held that the error occasioned no ’s rights.” As the Court by substantial feet[ed] constructive amendments can never be “affecting phrase sub- explained, the Olano harmless ... it follows that such errors ... “in cases means rights” most stantial rights. must affect substantial 507 at prejudicial.” U.S. [was] that the error (footnote omitted); Washington, Id. see also But, as the at 1778. (“Because prejudice 12 F.3d at in 1138 may recognize, be a “[t]here went on to quiry normally plain the same under the category errors that can of forfeited error standard as under the error harmless regardless on the of their effect be corrected standard, Sullivan, constitutionally Id. believe that Sullivan v. outcome.” We pre deficient reasonable doubt instruction is Louisiana, 275, 280-81, 113 S.Ct. 508 U.S. sumptively prejudicial.”); United States v. 2078, 2082, 124 and re- L.Ed.2d 182 Birbal, (2d Cir.1995) (similar 456, 461 62 F.3d precedent, compel the Fourth Circuit cent (similar Merlos, analysis); 8 F.3d at 50-51 on an that the failure to instruct conclusion analysis); Colon-Pagan, United States v. crime, jury of the where the never element (1st Cir.1993) C.J.) (Breyer, F.3d 81-82 findings, constitutionally required made the (similar David, therefore, analysis). sat has “special category” of forfeited is within prong, isfied Olano’s third as well. See errors, prong. third and satisfies Olano’s Rogers, 18 F.3d Johnson, 71 F.3d In United States v. (4th Cir.1994) (holding “that th[e] [“failure to (4th Cir.1995), held, upon we reliance knowledge instruct on the defendant’s of the Sullivan, on an that the failure to instruct conduct,”] illegality required of his own crime, where that element element crime[,] is an that af element error other elements cannot be inferred from the rights”). fects substantial jury, actually by the is an error not found analysis. susceptible to harmless error See D. also United States Cir.1994) (9th (en banc), on other aff'd Even when all three of Olano’s — U.S. -, grounds, 132 52(b) satisfied, requirements have been Clark, Rose v. cf. appeals courts of still have discretion wheth Olano, at er to notice an error. See 507 U.S. (1986) (“[H]armless-error analy Generally, at 1778. S.Ct. apply if presumably would not a court “ ‘ sis “in circum exercise our discretion those prosecution a verdict for the in a directed justice miscarriage stances which by jury”). criminal trial Whether error result,”’” id. at would otherwise susceptible is not to harmless error Young, at (quoting at 1779 S.Ct. analysis exempt showing of is also from the Frady, at (quoting at 1046 S.Ct. prejudice required satisfy prong the third 14, 102 14)), is, in n. at 1592 n. directly has not been addressed Olano defendant, of actual innocence of the the ease Olano, 507 Court. See or, where, irrespective of the defendant’s 1778; 734-36, 113 see also “ innocence, ‘seriously guilt error or Floresca, 706, 723 States v. fairness, integrity public rep affeet[s] the (en banc) Cir.1994) (Russell, J., dissenting). ” judicial (quoting proceedings,’ utation of id. However, we held Floresca such 392). Atkinson, necessarily “affect[s] substantial Notwithstanding structural prong that so-called rights,” satisfying the third of Olano. Floresca, generally thought 38 F.3d at 713. As we ex are be sub- errors ject analysis, we are reluc- plained, to harmless error every adopt per se rule that tant to always a constructive amendment [t]hat analysis need not be to which harmless error rights” also clear “affects substantial must be noticed as error. conducted reading plain language of Rule 52 Sullivan, 276-83, 52(a) generally 508 U.S. at squarely light de- See of Stirone. Rule (analyzing at 2080-83 whether as error that does not fines harmless error district court deter record as to whether the rights,” not substantial “affect[ed] error materiality proven had be discretion to notice mined that been has a court whether 577-78, Rose, Second, error); at 106 yond even as a reasonable doubt. plain (same); Arizona v. Fulmi find suming the district court did S.Ct. at nante, U.S. material under David’s false statement (1991) (same). The 1262-66, 113 proof, jury could conceiv correct burden rejected “per se specifically Supreme Court concluded, ably David maintained at have as Young, review” in plain-error approach to appeal, maintain on trial and continues to approach is “flawed.” observing that such ultimately proven, not n. 14. 105 S.Ct. at 1047 at 16 n. that David would have been from the fact plain that “a error affect noted Olano itself continue as a firearms dealer even allowed to more, not, without rights does ing substantial truthfully to indict responded had he “seriously affect[ed] error [establish (albeit oper question under a “letter of ment fairness, public reputation of integrity or license, than a renewed see J.A. ation” rather Atkinson, 297 judicial proceedings,” [the] 162-63). Finally, charged David is with at 392], at for otherwise at U.S. committing against government, a crime by Rule would afforded the discretion and, in emphasized as the Olano, illusory.” 507 U.S. at jury ... most power “the of the has And as the Ninth Circuit at 1779. important [precisely prosecution ais] when ‘structural,’ observed, if error is and “even individual, harming not for another presumed to af- error’ is even if ‘structural government offending against it rights of the fect substantial — at -, at 2316. self.” correetability, a Court prerequisite to third factors, together These with the fundamental should not reverse Appeals nevertheless error, leave us with little doubt nature not raised at because of structural this is the kind of case which our ‘seriously affects the fair- unless the appro- limited discretion under Rule judicial ness, reputation of integrity public priately preserve fair- exercised so as to 811; Keys, see proceedings.’” ness, judicial integrity reputation of the Lopez, also United States process. (1st Cir.1995) (“In events, guess all our best is, vacated, accordingly, conviction David’s regard an Supreme Court would is that the hereby for a and the case is remanded new per if reversible error se omitted element trial. timely objection although not were a there if automatically ‘plain error’ no oc- VACATEDAND REMANDED. Ross, curred....”); 77 F.3d at 1540-41 Marder, (similar analysis); 48 F.3d at 574-75 ERVIN, Judge, concurring Xavier, (similar analysis); States v. specially: Cir.1993) (similar (3d analy F.3d complete agreement I am with the re- sis). Birbal, 461; 62 F.3d at Colon- But see by my colleagues sult and with the reached us, at 82. It seems to as Pagan, 1 F.3d given legal rationale for their conclusions. Olano, apparently it to the Court did examining particulars of each separately only I to indicate that I do write balancing” reflected ease can the “careful necessarily subscribe statements preserved. Fra error rule be reasoning relating to the situation de- 1592; dy, see II-B, “special scribed ease” Part Young, also 105 S.Ct. at 1046 opinion (opinion pp. Sections 1 and error, (“Especially addressing plain when 641-45). I have the same concerns about properly reviewing court cannot evaluate a about much of what is written Circumstances viewing against except by ease such a claim C) D). A), B), my It is view that the record.”). the entire substantially beyond opinion goes what case, required particu- this to enable us decide particular we are con this I that we should limit lar case and believe vinced that notice of the error is war First, ranted. in the our decision to the issues resolve there is no evidence

legal questions before us. Other issues are day. left for another

best my premise present It is not opinion precedent undertakes create with the Olano “special reference ease” situa- tion or to of the other issues discussed holding. our which are essential to fact, reading opposite. a fair I indicates the

simply prefer expansive a less discussion of the case us. before HALLE; Halle,

Warren E. Martha D. Partners Other Than the Tax Matters

Partner, Petitioners-Appellants,

Kingstowne P., Petitioner, L. INTERNAL COMMISSIONER OF REVENUE, Respondent-

Appellee. No. 95-1740. Appeals, Court of States Fourth Circuit. Argued Oct. 6,May Decided

Case Details

Case Name: United States v. Karl v. David

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 6, 1996

Citation: 83 F.3d 638

Docket Number: 94-5754

Court Abbreviation: 4th Cir.