UNITED STATES OF AMERICA v. WHITNEY McBRIDE, and ODYSSEY INTERNATIONAL, INC.
Nos. 22-4119 & 22-4122
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
March 5, 2024
Before EID, SEYMOUR, and KELLY, Circuit Judges.
PUBLISH. FILED United States Court of Appeals Tenth Circuit. Christopher M. Wolpert Clerk of Court.
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WHITNEY McBRIDE, and ODYSSEY INTERNATIONAL, INC., Defendant - Appellants.
Matthew R. Lewis, Kunzler Bean & Adamson, PC, Salt Lake City, Utah, for Defendant-Appellant.
Nathan H. Jack, Assistant United States Attorney (Trina A. Higgins, United States Attorney, with him on the brief), Office of the United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.
Whitney McBride was tried and convicted for five offenses based on fraudulent conduct in obtaining a government contract via her company Odyssey International Inc. (“Odyssey“) to service the Army base at Fort Drum, New York. On appeal, McBride argues that her convictions for conspiracy, wire fraud, and major fraud should be vacated based on Ciminelli v. United States, 598 U.S. 306 (2023), which was decided by the Supreme Court after her conviction. She further argues her conviction for making a false declaration should be vacated due to errors in the jury instructions. Because of McBride‘s numerous procedural errors, we affirm.
Background
In 2011, Whitney McBride and Odyssey won a $99 million government contract servicing the Army base at Fort Drum. To bid on and win the contract, however, Odyssey was required to be HUBZone-eligible.1 Odyssey was not. Undeterred, McBride made it appear as though Odyssey was HUBZone-eligible by cooking the books and fudging the numbers.
McBride‘s fraudulent practices did not go unnoticed by the losing bidders, who submitted bid protests against Odyssey. To defeat an allegation of common ownership between Odyssey and the incumbent contractor, Cadence, McBride submitted a letter to the Small Business Administration denying any relationship between Odyssey and Patrick Hendrickson, an attorney serving as Cadence‘s CAO who had done prior work for Odyssey on another bid. Odyssey subsequently defeated the bid protests and began work.
Federal agents eventually investigated Odyssey and McBride, uncovering their fraud. In August 2020, Odyssey and McBride were indicted for conspiracy to commit wire fraud, wire fraud, and major fraud against the United States. When prosecutors sought to interview Hendrickson as part of their investigation, McBride filed a declaration claiming that her prior letter denying an attorney-client relationship between Odyssey and Hendrickson was false and that Hendrickson had been an attorney for Odyssey.2 This led the government to bring an additional charge against McBride for making a false declaration before a court.3
The case proceeded to trial where the parties proposed joint jury instructions. Relevant here, the district court adopted, without alteration, the language proffered by McBride and the government defining a “scheme to defraud” under Count II. The parties could not agree on the instruction for Count V for making a false declaration, however. McBride sought to add language instructing the jury on the substantive law of attorney-client relationships. The government sought to exclude that language.
Eleven months after the convictions of McBride and Odyssey the Supreme Court decided Ciminelli. There, the Court held that the Second Circuit‘s “right to control” theory of fraud was an invalid basis for liability under
Discussion
McBride contends her convictions on Counts I, II and III should be vacated because Ciminelli required the jury to be instructed that federal fraud statutes only protect “traditional property interests.” Pointing to Ciminelli, McBride now attempts to convince us that the prosecution‘s theory of the case was inextricable from and anchored in the now-erroneous “right to control” theory. She further argues that her conviction on Count V should be vacated because the jury instructions improperly paraphrased her alleged false statement and misstated the law, and the government failed to meet its burden of proving her statement was false. Whatever the merits of these arguments, however, we decline to address them because of McBride‘s numerous procedural stumbles.
A. McBride waived her challenges to Counts I, II, and III because she invited error and also failed to plead plain error.
Those who disregard procedural requirements play a dangerous game and do so at their peril. This appeal proves that point. Pursuant to Federal Rule of Appellate Procedure 28(a)(8)(B), appellants are required to set forth the standard of review applicable to appellate review. McBride utterly fails to do this, so we note it here ourselves. In a properly briefed case, we review a “district court‘s decision to give or not give a particular jury instruction” for abuse of discretion. United States v. Jereb, 882 F.3d 1325, 1335 (10th Cir. 2018). “[W]e review the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law.” Id. (quoting United States v. Sharp, 749 F.3d 1267, 1280 (10th Cir. 2014)). If an appellant fails to object to a particular jury instruction below, we review for plain error. Id.
1. Invited Error
We first address McBride‘s argument that her convictions on Counts I, II, and III—conspiracy to commit wire fraud, wire fraud, and major fraud against the United States respectively—must be vacated because the jury instructions given were improper post-Ciminelli.4 Specifically, McBride contends the jury instruction defining a “scheme to defraud” was improper because it failed to appropriately caution the jury that, as clarified by the Supreme
“traditional property interests.” As such, McBride argues that the instruction, which only defined the object of a “scheme to defraud” as “money or property,” was insufficient because it allowed the jury to convict McBride and Odyssey if it found that they had “merely intended to cause the government to dispense funds contrary to a government policy,” even if they had not intended to and did not ultimately harm the government‘s traditional property interests. Aplt. Br. at 12. It is here, the government counters, that McBride runs into her first hurdle on appeal: McBride herself offered the instruction about which she now complains and is therefore precluded from challenging it under our invited error doctrine. We agree.
Generally, “the invited-error doctrine precludes a party from arguing that the district court erred in adopting a proposition that the party had urged the district court to adopt.” United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005). A party who “induces an erroneous ruling” from the district court may not then seek sanctuary from the consequences of that ruling through an appeal. Id. In jury instruction challenges specifically, our caselaw forecloses “this Court [from engaging] in appellate review when a defendant has waived his right to challenge a jury instruction by affirmatively approving it at trial.” United States v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012). See also, e.g., United States v. Visinaiz, 428 F.3d 1300, 1310–11 (10th Cir. 2005) (holding that the defendant‘s challenge to his own proffered instruction was “thereto [] precluded as invited error“); United States v. Sturm, 673 F.3d 1274, 1281 (10th Cir. 2012) (“[The defendant] did not object to the theory of defense instruction given at trial, and proffered the challenged instruction himself. His attack on the sufficiency of this instruction is therefore barred by the invited-error doctrine . . . .“); United States v. Harris, 695 F.3d 1125, 1130 n.4 (10th Cir. 2012) (holding that a “defendant who proffers his or her own instruction, persuades the court to adopt it, and then later seeks to attack the sufficiency of that instruction” has invited error); Jereb, 882 F.3d at 1340 (holding that the invited error doctrine applied when a defendant “requested (and received) jury instructions” he had sought).
The government argues, and McBride conceded at oral argument, that McBride proffered the instruction she now attacks. The government and McBride submitted joint jury instructions to the trial court. True, the parties did not entirely agree on the instruction at issue, Instruction No. 35, and they submitted competing instructions to that end.5 However, that is immaterial. What McBride challenges is the definition of a “scheme to defraud,” which she argues
understanding of federal fraud statutes. That definitional language in the Defense Instruction was the same as that included in the Prosecution Instruction and, more importantly, the same as that ultimately adopted by the trial court. For the purposes of this appeal, then, we consider the district court as having adopted McBride‘s proposed language. We note that, although it is insufficient standing alone, the defense also failed to object to that instruction.6 See Harris, 695 F.3d at 1130 n.4.
In her reply, McBride halfheartedly implies that our “supervening decision doctrine” offers a metaphorical escape-hatch from her invited error. She seemingly argues that she could not object to (and never would have offered) her instruction because Ciminelli changed our understanding of federal fraud law only after her trial concluded. Therefore she contends Ciminelli‘s intervening change excuses her error.
Our circuit has long recognized an exception to the invited error doctrine, known either as the “supervening decision doctrine” or the “intervening decision doctrine.” Compare Anixter v. Home-Stake Production, 77 F.3d 1215, 1231 (10th Cir. 1996), with Ray v. Unum Life Ins. Co. of America, 314 F.3d 482, 487 (10th Cir. 2002), and United States v. Titties, 852 F.3d 1257, 1264 n.5 (10th Cir. 2017). The exception holds that the invited error doctrine is per se inapplicable when a party relied on settled law below that changed while the case was on appeal. Titties, 852 F.3d at 1264 n.5.
To the extent McBride argues that this exception applies to her case, we are not persuaded. As we noted clearly in Titties, McBride can successfully invoke the exception only if she relied on settled (now erroneous) law when proffering her jury instructions. See Titties, 852 F.3d at 1264 n.5 (agreeing with the defendant‘s argument that “the invited-error doctrine does not apply when a party relied on settled law that changed while the case was on appeal” (emphasis added)). Two reasons cut against applying the exception here. First, and most importantly, McBride nowhere claims to have relied on settled law when proffering the instruction she challenges. All she asserts is that federal fraud law changed post-Ciminelli when the Supreme Court ruled the “right to control” theory invalid. This assertion misses the mark. What is key for the supervening decision doctrine‘s applicability is that the law upon which a party relied below has changed. Id. McBride
Our instinct that McBride did not rely on the “right to control” theory when proffering her instructions is further confirmed because she does not cite—let alone claim to have relied on—our own circuit‘s caselaw upholding it.9 Indeed, nowhere does McBride offer a case establishing the necessary premise that our circuit has adopted the “right to control” theory. McBride‘s failure to at all substantiate her argument with our caselaw causes us to infer that the “right to control” theory played no role in her proposed jury instructions.10
Second, based on our own investigation of the record, we are not convinced that the law upon which McBride did rely changed post-Ciminelli. In a footnote to the definition of a “scheme to defraud” in Defense Instruction No. 35 (McBride‘s proposed instruction), McBride wrote: “Modified from pattern instruction in light of Kelly v. United States, — U.S. —, 140 S. Ct. 1565 (2020) (scheme to defraud necessarily means a scheme whose object is to obtain money or property).” Rec., vol. I at 81. McBride thus ostensibly relied on Kelly v. United States. Here, we simply note that there could be no error on this point because Ciminelli affirmed Kelly.11
McBride invited her own error when she persuaded the district court to adopt the “scheme to defraud” instruction she proposed. She does not persuasively argue that our supervening decision doctrine allows her challenge now because she offers no evidence that the law (if any) that she
Alternatively, because McBride fails to argue for any standard of review on appeal, including plain error, we also find her argument to reverse her convictions on Counts I, II, and III separately waived. It is to that issue we now turn.
2. Plain Error
Even if we were to find that McBride‘s actions below did not amount to invited error or that our supervening decision doctrine otherwise excused her error, we would still affirm her convictions on Counts I, II, and III because she has failed to argue plain error on appeal.
Typically, plain error would be the correct standard of review for a challenge of this kind, i.e. an unpreserved jury instruction claim. See, e.g., Jereb, 882 F.3d at 1335. It is the obligation of the appellant to identify, and argue for, that standard. “A party cannot count on us to pick out, argue for, and apply a standard of review for it on our own initiative.” McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010). The Federal Rules of Appellate Procedure themselves mandate this: “The appellant‘s brief must contain . . . (8) the argument, which must contain . . . (B) for each issue, a concise statement of the applicable standard of review.”
As aptly explained in Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011), “[T]he failure to argue for plain error and its application on appeal . . . surely marks the end of the road for an argument for reversal not first presented to the district court.” See also United States v. Lamirand, 669 F.3d 1091, 1100 n.7 (10th Cir. 2012) (same); United States v. MacKay, 715 F.3d 807, 831 (10th Cir. 2013) (same). “When an appellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinarily deem the issue waived (rather than merely forfeited) and decline to review the issue at all—for plain error or otherwise.” United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). See also Havens v. Colo. Dep‘t of Corrs., 897 F.3d 1250, 1260 (10th Cir. 2018); Lamirand, 669 F.3d at 1099 n.7; United States v. Wright, 848 F.3d 1274, 1281 (10th Cir. 2017); United States v. Isabella, 918 F.3d 816, 845 (10th Cir. 2019) (“Ordinarily, ‘an appellant who fails to preserve an evidentiary objection below may argue and establish plain error on appeal,’ however, a ‘failure to argue plain error on appeal waives the argument.’” (quoting United States v. Roach, 896 F.3d 1185, 1192 (10th Cir. 2018) (alterations removed))). Although “we have left open the door for a criminal defendant to argue error in an opening brief and then allege plain error in a reply brief after the Government asserts waiver,” Leffler, 942 F.3d at 1198, we “will not consider an appellant‘s argument unless it attempts to ‘run the gauntlet created by our rigorous plain-error standard of review.’” Isabella, 918 F.3d at 845 (quoting United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012)).
We find United States v. Isabella strikingly exemplative. There, Isabella objected to the relevance of an expert‘s testimony, but not to the expert‘s qualifications. Isabella, 918 F.3d. at 844–45. When he raised
Here, because McBride failed to preserve her challenges to Counts I – III, she was required to plead plain error on appeal to avoid those challenges being waived. Nowhere does she do so. “[McBride‘s] opening appellate brief neither identifies any standard of review nor provides any defense of that standard‘s application.” Yuen, 618 F.3d at 1189. Like in Isabella, McBride does not address plain error in her opening brief. Unlike Isabella, in her reply McBride fails to substantively address the plain error issue at all, despite being on notice of the government‘s waiver argument. She dismisses the government‘s waiver assertions only at the very end of her reply. She does not cite the plain error standard or its elements, or purport to fit her assertions into that standard. McBride‘s sole claim that “[t]he change in the law by Ciminelli clearly affected Appellant‘s substantial rights” is not enough.12 Aplt. Reply at 6. McBride‘s arguments are conclusory, speculative, and without substantial support or citation. She offers no support or further argument for the assertion that Ciminelli “worked a change in the law” that might have “altered the evidence admitted at trial and allowed the Appellants to
demonstrate that the government did not suffer economic loss.” Id. And as we said in Isabella, this court is not in the business of filling in the gaps for insufficient arguments. C.f. Isabella, 918 F.3d at 845 (noting that an argument that is “too general and conclusory” will not warrant review (quoting Collins v. Diversified Consultants Inc., 754 F. App‘x 714, 718 (10th Cir. 2018))). See also Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1146 (10th Cir. 2009) (rejecting plaintiffs’ argument “as inadequately briefed” because of their failure to “provide a substantive explanation” for and “simply assert[ing] in a conclusory fashion” their argument). Because McBride both failed to preserve her arguments below and failed to argue plain error here, her arguments have “come to the end of the road and [are] effectively waived.” Fish v. Kobach, 840 F.3d 710, 729–30 (10th Cir. 2016).
Despite this general rule, if McBride had made a substantive effort to address the government‘s waiver argument and plead plain error in her reply,
Here, asserting that one-fourth (if that) of the plain error standard has been met is “too general and conclusory to warrant review,” and certainly does not allow “the adversarial process to be served.” Id. at 845. Because of the paucity of McBride‘s briefs on the issue, we would not know where to begin if we wanted to analyze her argument under plain error and, frankly, that is not our role. See Hill v. Kemp, 478 F.3d 1236, 1251 (2007) (noting that “we exercise caution” when “undertak[ing] such self-directed research or pursu[ing] late and undeveloped arguments” as that “would run the risk of an improvident or ill-advised opinion, given our dependence as an Article III court on the adversarial process for sharpening the issues for decision” (quoting Headrick v. Rockwell Int‘l Corp., 24 F.3d 1272, 1278 (10th Cir. 1994))); MacKay, 715 F.3d at 831 n.17 (“[I]f an appellant fails to satisfy [the burden of plain error], we do not develop a plain error argument for the appellant.“).
We have identified other instances when we will extend grace to a party before us, but none apply here.13 McBride failed a basic responsibility of an appellant: arguing a standard of review. Her failure to do so after having failed to preserve her claims below waives them, even were we to find her arguments not otherwise barred.
B. McBride waived her unpreserved challenges to Count V, and we dismiss her preserved claims for failing to follow appellate procedure.
We turn to McBride‘s argument that her conviction on Count V, false declaration to a court, should be vacated. McBride levels four challenges to the district court‘s jury instruction No. 36 that she argues requires us to vacate her conviction: (1) the instruction misstated the law, (2) the instruction improperly paraphrased McBride‘s alleged false statement, (3) the government failed to prove the falsity of McBride‘s statement, and (4) the government failed to prove the falsity of McBride‘s statement “under a reasonable interpretation of the law.” Aplt. Br. at 14. The government responds that, once more, McBride has waived most of her arguments per invited error14 and her failure to argue plain error
We need not, and will not, repeat the exhaustive law we have just outlined regarding an appellant‘s obligation to plead plain error for unpreserved claims. Suffice it to say that for McBride‘s second claim that the jury instruction inaccurately paraphrased her Declaration—an error she did not raise below—she is required to argue plain error on appeal. A failure to do so generally waives a litigant‘s argument. See, e.g., Wright, 848 F.3d at 1281; Isabella, 918 F.3d at 845; United States v. De Vaughn, 694 F.3d 1141, 1159 (10th Cir. 2012) (holding that because the defendant did “not even tr[y] to show how the alleged errors were ‘plain,’” the court did not need to reach the merits). Here, again, McBride fails to satisfy her burden. Nowhere in her opening brief can we find McBride arguing for (or against) plain error or any other standard of review. This is enough to find her second claim waived. See Kobach, 840 F.3d at 729–30.
Again, we have been willing to entertain an appellant‘s plain error argument in their reply for unpreserved claims, even absent such an argument in their opening brief. See generally Leffler, 942 F.3d at 1197–99. McBride does not attempt to argue, and we are not convinced, that any of our circuit‘s loopholes offer her sanctuary. See id. (noting that our court may address an omitted plain error argument when that omission is a “product of mistake,” the government fails to raise the omission in its briefs, or the defendant is proceeding pro se).
McBride‘s remaining Count V arguments were preserved, however. McBride moved to dismiss Count V as a matter of law via a Rule 29 motion, preserving her third and fourth claims, and objected to jury instruction No. 36 as misstating the law, preserving her first claim. It is an unsettled question whether we must dismiss when an appellant properly preserves their claim below yet fails to argue a standard of review in the appeals court. We have long protected our discretion to reach the merits of a claim despite briefing deficiencies. MacArthur v. San Juan Cnty., 495 F.3d 1157, 1161 (10th Cir. 2007) (“[W]here an appellant has provided defective briefs, the court in its discretion may scrutinize the merits of the case insofar as the record permits . . . .” (quoting Fryar v. Curtis, 485 F.3d 179, 182 n.1 (1st Cir. 2007))). We have also found that “[i]t is indisputably within our power as a court to dismiss an appeal when the appellant has failed to abide by the rules of appellate procedure.” Id. See also Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1254 n. 2 (10th Cir. 2005) (“This failure to state contentions with particularity and to propose the appropriate standard of review is sufficient grounds, standing alone, to deny Ms. Praseuth‘s cross-appeal.“).
Here, McBride‘s “omission of such a basic component of an appellate brief” as a standard of review—in both her opening and reply—is “inexcusable.” MacArthur, 495 F.3d at 1161. The words “standard of review” appear nowhere in McBride‘s briefs. This is especially galling given McBride was put on notice by the government in its answer that it was advancing waiver arguments, precisely because of her failure to argue a standard of review. In the only attempt she makes to
Finally, the government argues that Appellants have not argued plain error. But all of these issues were wrapped up in the arguments made in support of Ms. McBride‘s motion for judgment as a matter of law on Count V and the arguments relating to the jury instructions on Count V. Thus, they were preserved for purposes of appeal.
Aplt. Reply at 11. McBride‘s statement is both incorrect and insufficient. Preserving an issue below is not the same as affirmatively pleading a standard of review on appeal; that a party preserved an error below does not empower them to then forgo whatever procedural rules they deem inconvenient here. Both the preservation of an issue below and asserting the proper standard of review are required under the Federal Rules. See
Had McBride only failed to state a standard of review, we might be willing to reach the merits of her preserved claims. Unfortunately, that omission is only one among several other briefing deficiencies.15 Moreover, even assuming we tried to reach the
merits of her preserved Count V claims, we would be violating our own precedent to do so. To illustrate, for her preserved jury instruction claim, abuse of discretion was the appropriate standard for McBride to plead and prove.16 See Jereb, 882 F.3d at 1335. She nowhere identifies or seeks to argue for this standard. To reach it, then,
It is within our power to dismiss an appeal that fails to conform to the rules of appellate procedure, and we do so now. We affirm McBride‘s conviction on Count V.
Conclusion
In sum, we hold McBride‘s challenges to her convictions on Counts I, II, and III waived under invited error or, alternatively, because of her failure to argue plain error on appeal. We hold her unpreserved arguments regarding her conviction on Count V waived because of her failure to argue plain error, and her preserved claims dismissed for failure to conform to the rules of appellate procedure. We affirm.
USA v. McBride & Odyssey International, Nos. 22-4119, 22-4122
EID, Circuit Judge, concurring in part and concurring in the judgment:
As the majority explains in Part A.2 and Part B, we could have resolved this case by holding simply that McBride waived her claims by failing to argue on appeal that the district court‘s decisions do not survive plain error (or any other standard of review). See Maj. Op. at 12–17 (Part A.2); 17–22 (Part B). If all that is true—which it is, in my view—then the majority‘s discussion of the invited-error doctrine and the supervening-decision exception is entirely unnecessary to resolve this case. See id. at 5–12 (Part A.1). In addition to being unnecessary in the first instance, the majority‘s discussion of the supervening-decision exception is unnecessarily broad, and in any event, wrong. The majority errs in concluding that the supervening-decision doctrine permits review of invited errors only if the appellant actually relied on a now-overruled case below. See Maj. Op. at 9-12. That conclusion is not required by our precedents and does not comport with the principles of waiver underlying the invited-error doctrine.
Nevertheless, the majority is correct to conclude that McBride is not entitled to the benefits of the supervening-decision exception, even under a proper understanding of that rule, because she fails to argue that the law in our Circuit was well-established or that the law changed while her appeal was pending. Maj. Op. at 10–11. I therefore concur in the judgment.
I agree with the majority that McBride invited error by proposing the jury instructions she now challenges on appeal. See Maj. Op. at 5–8. Therefore, as the majority correctly explains, we may review these invited errors only if McBride is entitled to the benefit of the supervening-decision exception. See Maj. Op. at 9. If this exception applies, we may review McBride‘s waived claims; otherwise, we may not.
The majority misstates the controlling rule in our Circuit for when the supervening-decision exception applies. We concluded in United States v. Titties that the supervening-decision exception is available “when a party relied on settled law that changed while the case was on appeal.” 852 F.3d 1257, 1264 n.5 (10th Cir. 2017). The majority takes that conclusion and inserts a crucial word—“only.” See Maj. Op. at 9 (citing Titties, 852 F.3d at 1264 n.5). Thus, according to the majority, “[w]hat is key for the supervening decision doctrine‘s applicability is that the law upon which a party relied below has changed.” Maj. Op.
The majority claims that Titties “articulates the reliance prong” it now imposes. See Maj. Op. at 10 n.7 (citing Titties, 852 F.3d at 1264 n.5). But Titties does not justify the majority‘s rule or its application here. In Titties, we summarized the appellant‘s arguments that “he did not invite error when he correctly informed the district court that [our precedent] required use of the modified categorical approach,” and that “the invited-error doctrine does not apply when a party relied on settled law that changed when the case was on appeal.” 852 F.3d at 1264 n.5. Of course, “[w]e agree[d].” Id. And then we went on to explain our ruling by citing our rule that “an intervening change in the law permits appellate review of an issue not raised below.” Id. We never announced a so-called “reliance prong“—and in fact, other than summarizing the appellant‘s argument, Footnote 5 of Titties did not mention “reliance” at all. Id.;1 contra Maj. Op. at 10 n.7. Nor did we suggest that we were modifying or overruling prior precedent.2 Titties thus identifies one circumstance under which the supervening-decision exception applies, but
the majority construes Titties to describe the only circumstance under which it applies. The majority‘s conclusion is simply not required by Titties.
Nor is the majority‘s rule justified by the principles underlying invited error. The invited-error doctrine gives effect to the hornbook rule that “[a] party that has forfeited a right by failing to make a proper objection may obtain relief for plain error; but a party that has waived a right is not entitled to appellate relief.” United States v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012) (quoting United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009)). We normally understand a mere failure to object to be a forfeiture. Id. at 1319–20. However, if a party affirmatively invites the district court to take a certain action—for instance, by proposing a jury instruction—we construe the party to have “knowingly and intelligently relinquished” any claim of error; that is, we deem such a claim waived. Id.
The supervening-decision rule is an exception to the invited-error doctrine. As we have explained, when the relevant issue was governed by “settled law” in our Circuit, but that law “changed while the case was on appeal,” the “intervening change in the law permits appellate review,” even if the appellant invited the district court to apply the law as it stood. Titties, 852 F.3d at 1264 n.5 (quoting Ray, 314 F.3d at 487). This rule “reflects the principle that it would be unfair, and even contrary to the efficient administration of justice, to expect a defendant to object at trial where existing law appears so clear as to foreclose any possibility of success.” Anixter, 77 F.3d at 1231 (quoting United States v. Washington, 12 F.3d 1128, 1139 (D.C. Cir. 1994)).
Although it is an exception to the invited-error doctrine, the supervening-decision doctrine is not an exception to the underlying rule that “a party that has waived a right is not entitled to appellate relief.” Cornelius, 696 F.3d at 1319. The supervening-decision exception is instead best understood as a limit on when we will infer waiver from an appellant‘s arguments below. Even if an appellant invited the district court to err, we will not presume that an appellant intentionally waived her claim if “the law was so well-settled at the time of trial that any attempt to challenge it would have appeared pointless.” Washington, 12 F.3d at 1139. Instead, “where existing law appear[ed] so clear as to foreclose any possibility of success,” we can draw no inference from an appellant‘s failure to object. Anixter, 77 F.3d at 1231 (quoting Washington, 12 F.3d at 1139); cf. Cornelius, 696 F.3d at 1319–20. In other words, a party who “invites error” by proposing instructions required by the well-settled law of our Circuit does not intentionally relinquish her right to challenge such instructions if the law changes. Indeed, we have previously held that, under such circumstances, a failure to object does not even evidence a forfeiture requiring plain-error review. See Anixter, 77 F.3d at 1231 (rejecting the application of the “plain error standard to litigants whose claimed error was based on a change in the law that arose after trial“).
In my view, this is true even if the appellant did not explicitly cite a previously well-settled decision below. Contra Maj. Op. at 9–12. The majority deems reliance below “key for the supervening decision doctrine‘s applicability.” Id. However, I do not take the majority to say that the supervening-decision doctrine is a freewheeling exception to the waiver doctrine, rather than a mere application of it. And there is no reason to think that the failure below to cite a now-overruled decision is conclusive evidence of waiver. A litigant who capitulates to the well-settled law of our Circuit does not necessarily do so willingly, and I would not adopt a conclusive presumption to that effect.
Nor should this Court adopt a reliance requirement that would require us to examine litigants’ subjective states of mind below. What about an appellant who proffered only the pattern instruction below? Must the appellant say in her opening brief that she submitted such instruction in reliance on our previous cases? Must we take the appellant‘s word for it? Or may
Therefore, to receive the benefit of the supervening-decision exception under our controlling precedents, McBride must demonstrate (1) that the law of the Tenth Circuit was previously so well-settled it foreclosed any possibility of success; and (2) that the relevant law in this Circuit was changed by an intervening Supreme Court or Tenth Circuit decision. As the majority explains, McBride fails to demonstrate either of these things on appeal. See Maj. Op. at 10–11. Therefore, she is not entitled to the benefits of the supervening-decision exception, and our review of her claims is barred.
The majority apparently agrees with this reasoning. See Maj. Op. at 10–11. This is yet another reason the majority‘s erroneous discussion of reliance is entirely unnecessary to dispose of this appeal. McBride did not argue on appeal that the law in this Circuit was settled, so even under the majority‘s rule, it is irrelevant whether she “relied on” such law below. There was no reason for the majority to announce additional requirements for the supervening-decision exception when those requirements would not make a difference in this case.
McBride invited error; she did not show that previously well-settled law in our Circuit changed on appeal; and she waived her claims with respect to Count V.3 I therefore agree with the majority that we must affirm. However, I disagree with the majority‘s choice to resolve McBride‘s appeal through an unnecessary and incorrect restatement of our invited-error doctrine in a published opinion. Therefore, I respectfully concur in the judgment.