UNITED STATES оf America, Plaintiff-Appellee, v. Michael Curtis KEYS, Defendant-Appellant.
No. 93-50281
United States Court of Appeals, Ninth Circuit
Decided Sept. 11, 1996.
Argued and Submitted May 23, 1996.
874
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated....”
It would be utterly unsound to make the bold extrapolation from these cases that all medical examinations are searches. First, it is unclear exactly what qualifies as a “medical examination.” Second, the reason certain medical procedures constitute searches is that they “intrud[e] upon expectations of privacy” that society recognizes as reasonable. Skinner, 489 U.S. at 617, 109 S.Ct. at 1413. Under the court‘s newly fashioned rule, however, if any encounter can be labeled a medical examination, it per se is a search, “whether or not that examination entails any particularly intrusive procedures.” The per se rule puts the cart before the horse. We should be cautious to outpace medical technology in this sensitive area of the law.
Since I do agree, however, that certain aspects of the routine physical examination at issue here would implicate the requisite “concerns about bodily integrity,” id. at 617, 109 S.Ct. at 1413, I concur in the court‘s application of the balancing test for reasonableness, and in the result in this case. I cannot, however, concur in its dictum.
John P. Elwood, United States Department of Justice, Washington, D.C.; Miriam A. Krinsky, Stefan D. Stein, Assistant United
Before: HUG, Chief Judge, BROWNING, FLETCHER, PREGERSON, JOHN T. NOONAN, Jr., THOMPSON, LEAVY, TROTT, T.G. NELSON, KLEINFELD, and TASHIMA, Circuit Judges.
TROTT, Circuit Judge:
Keys was charged with the crime of having made as a witness a false declaration in federal court in violation of
On appeal, Keys asks for the retroactive benefit of this change in the law, and he asks us to review his conviction for error pursuant to
I
Facts
Keys was serving time in federal prison for armed bank robbery. A former DEA agent named Darnell Garcia was on trial for conspiracy and other crimes. Another prisoner testified for the prosecution against Garcia pursuant to a plea bargain. Garcia called Keys as a witness to impeach the other prisoner. Keys testified that while he and the prosecution witness had shared a cell, the witness told him he was willing to lie for the government against Garcia in exchange for lеniency for himself.
Keys had previously sent a letter to Garcia, who was being held in the same facility. Keys hid the letter among some magazines he asked a guard to deliver to Garcia. A letter smuggled past prison officials to another prisoner is called a “kite.” The intercepted kite lends itself to the inference that Keys conspired with Garcia to lie for him at trial. The text of the letter reads:
Hey G.,
I‘ve got everything covered on my end and I‘m ready whenever the time is right. I hope that I can really make a difference and you come out on top. Let me know how long you anticipate your thing to last, so I can figure out how long I‘ll be here. I‘m trying to stay as long as I possibly can and try to get a lot done while I‘m here. I heard that R.R. left Fri. and he‘s in Okla. right now. I‘m also trying to get a few things from the commissary but they only let us order two cosmetics items a week. If you can hook it up right away I need you to have somebody send this girl some money upstairs, so I can have her get me everything I need from the commissary. It don‘t have to be nothing but twenty or fifty dollars.
That guy,
P.S. Here‘s her name and number: Jeanna Carson—Reg. No. 92373-012.
II
Instructional Error
Counsel for both sides proposed, and the court gave from our Ninth Circuit Manual of Model Instructions, an instruction correct under the law as it then stood:
COURT‘S INSTRUCTION NO. 16
The defendant is charged in Count One of the indictment with having made a false declaration in violation of Section 1623 of title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant testified under oath before a court of the United States;
Second, the testimony was false; and
Third, the defendant knew that the testimony was false.
The instruction, No. 8.29C, did not submit the issue of the materiality of the false testimony to the jury as one of the elements which the government had to prove beyond a reasonable doubt. Yet the statute criminalizes only such false testimony as is material. The statute uses the language, “Whoever under oath ... makes any false material declaration....”
This model instruction was based on established Ninth Circuit law. We had held in United States v. Clark, 918 F.2d 843, 845 (9th Cir.1990), that “materiality is an issue of law for the court to decide.” In Clark, we followed the rule set out by the Supreme Court in Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929). In accord with this understanding, the trial court found that Keys‘s alleged false declaration was material. No mention of this finding was made to the jury.
III
Analysis
A. Application of New Rule of Law
In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Supreme Court held that “a new [constitutional] rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 328, 107 S.Ct. at 716 (emphasis added). Embracing Justice Harlan‘s view, the Court said that failure to do so “would violate[] basic norms of constitutional adjudication.” Id. at 322, 107 S.Ct. at 713 (citing United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). In the instant case, such a new rule was announced in this circuit in 1994 after the defendant‘s trial in 1992 and before his judgment of conviction became final. The “new rule” is that the materiality element of an allegedly actionable statement must be submitted for a finding in a jury trial to the jury, not to the court.
We announced this holding in United States v. Gaudin, 28 F.3d 943 (9th Cir.1994) (en banc), a case in which the defendant had been charged with making material false statements in violation of
As our colleague Judge Kleinfeld observed in the earlier three-judge panel opinion in this case, Justice Scalia expressed the logic of the Gaudin Court in a syllogism:
The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the presеnt case is materiality; respondent therefore had a right to have the jury decide materiality.
Keys, 67 F.3d at 808 (citing Gaudin, — U.S. at —, 115 S.Ct. at 2314). We agree with Judge Kleinfeld‘s analysis that “[t]his syllogism applies with equal force to the perjury statute at issue in this case,
B. Error for Which We Review
It would seem axiomatic, therefore, that we should proceed at this point using the
Since 1970, we have advised criminal defense counsel in this circuit that when faced with a “solid wall of circuit authority” endorsing a jury instruction, no objection to that instruction need be registered in the trial court to preserve the point on appeal should that “solid wall” suddenly crumble in the interim and render the instruction defective. As we noted,
An exception [to the instruction] would not have produced any results in the trial court. Under these circumstances were we to insist that an exception be taken to save the point for appeal, the unhappy result would be that we would encourage defense counsel to burden district courts with repeated assaults on their settled principles out of hope that those principles will be later overturned, or out of fear that failure to object might subject counsel to a later charge of incompetency.
United States v. Scott, 425 F.2d 55, 57-58 (9th Cir.1970) (en banc). Accordingly, we gave Scott on appeal the benefit of a new constitutional rule which was articulated after his trial but before his judgment of conviction had become final.3
We repeated this reassuring message in 1988 in People of Territory of Guam v. Yang, 850 F.2d 507 (9th Cir.1988) (en banc), and we referred in passing to our consistent application of the Scott “solid wall” principle “when appropriate.” Id. at 512 n. 8. Most importantly, we explicitly held in Yang that “even though defense counsel did not object contemporaneously to the trial cоurt‘s instruction, we review the instruction for reversible error, rather than plain error.” Id. (empha
Given this illuminating backdrop, two observations are pertinent. First, to subject the judgment of conviction of a defendant such as Keys, whose counsel adhered to a settled rule of law, to review for “plain error” would be unconscionable. Such a holding would render our Scott/Yang solid wall doctrine a hoax and be tantamount to a double-barreled message to counsel: (1) do not rely on our opinions; and (2) object to everything or your clients’ arguments on appeal may be measured by a more restrictive standard.
Second, Olano deals with
Furthermore, the heightened standard of review suggested by the government is at odds with Griffith which “instructs” us (as a “lower court“) “to apply new rules retroactively to cases not yet final.” 479 U.S. at 323, 107 S.Ct. at 713. Such mandatory language is flatly inconsistent with
Rule 52(b) is permissive, not mandatory. If the forfeited error is “plain” and “affect[s] substantial rights,” the Court of Appeals has authority to order correction, but is not required to do so. The language of the Rule (“may be noticed“), the nature of forfeiture, and the established appellate practice that Congress intended to continue, all point to this conclusion. “[I]n criminal cases, where the life, or as in this case the liberty, of the defendant is at stake, the courts of the United States, in the exercise of sound discretion, may notice [forfeited error].”
Olano, 507 U.S. at 735-36, 113 S.Ct. at 1778 (quoting Sykes v. United States, 204 F. 909, 913-14 (8th Cir.1913)).
The approach we take in this case reaffirms our statement in Yang that we review under thеse special circumstances not for plain error, but only for error under
C. Rule 52(a) Error
The question we must now answer is whether the processing of the materiality element in this case requires reversal, or not, a question we address in the genеral context of
On remand from the Supreme Court, we noted in Olano III that:
[U]nder
Rule 52(a) , most error constitutes “trial error“—error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” ... Some error is not susceptible to harmless error analysis and is per se prejudicial. Such error consists of “structural defects in the constitution of the trial mechanism.... [Such] constitutional deprivatiоns [are] structural defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.”
United States v. Olano, 62 F.3d 1180, 1188-89 (9th Cir.1995) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 1263-65, 113 L.Ed.2d 302 (1991)).
In Gaudin, we held that the error inherent in instructing a jury that an element of the crime charged was established as a matter of law could not be harmless because it was “structural.” We said that “[w]hen proof of an element has been completely removed from the jury‘s determination, there can be no inquiry into what evidence the jury considered to establish that element because the jury was precluded from considering whether the element existed at all.” 28 F.3d at 951. Nevertheless, in Roy v. Gomez, 81 F.3d 863 (9th Cir.1996) (en banc), we subsequently identified a distinction between cases like Gaudin in which “a court instructs the jury that an element of the crime has been established as a matter of law,” and cases like Keys‘s in which the trial court “simply fails to alert the jurors they must consider it.” Id. at 866. In the latter circumstance, we allowed that
Even though an element of the offense is not specifically mentioned, it remains possible the jury made the necessary finding. Review for harmless error is appropriate, but it is the type of review discussed in Carella [v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989)]. That is, the omission is harmless only if review of the facts found by the jury establishes [beyond a reasonable doubt] that the jury necessarily found the omitted element.
Id. at 867 (emphasis in original). Thus, although the manner in which the materiality element was processed in this case is quite similar to the error in Gaudin, we apply the Carella harmless error test as explained in Roy. The state has the burden of showing that the error was harmless beyond a reasonable doubt. Id. at 868 (“On direct appeal,
The Carella harmless error test is satisfied “only if the reviewing court can tell what the jury actually found, [because] only then can the court conclude ‘beyond a reasonable doubt’ ... that the jury found the facts necessary to support the conviction.” Id. at 868 (quoting Carella, 491 U.S. at 271, 109 S.Ct. at 2424) (emphasis added) (citation omitted). As we explained in Roy:
It was for the jury, not the judges who have reviewed the case, to determine which interpretation of the evidence was correct. We are not free to evaluate the evidence and postulate what the jury would have found had it been properly instructed. “[T]he question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials.”
Id. at 867 (quoting Carella, 491 U.S. at 269, 109 S.Ct. at 2422) (emphasis added in Roy). If a reviewing court cannot tell what the jury actually found, because there are no findings from which a reviewing court could conclude that the jury necessarily found the omitted element, then the Carella harmless error analysis ends and reversal is required. Id. at 868.
Looking at the record and in particular the whole of the instructions given to the jury, we note that the only reference to materiality made to the jury was in connection with the court‘s statement of the charge against him:
Count One of the indictment charges that defendant Michael Curtis Keys violated Title 18, United States Code, Section 1623, which provides in pertinent part as follows: “Whoever under oath ... in any proceeding before or ancillary to any court of the United States knowingly makes a false material declaration is guilty of an offense against the United States.”
(emphasis added). Immediately after this statement of the offense, the court-as set out earlier in this opinion-identified the specific elements of the offense required to be proved by the government beyond a reasonable doubt. Nоt surprisingly, materiality was not one of them. Given these factors, we are certain only that the jury found that (1) Keys testified under oath in district court, (2) his testimony was false, and (3) he knew it was false. In making such findings either individually or collectively, the jury would not necessarily have had to find that the false testimony in question was material to the issues under consideration, especially given the lack of instructional guidance on the meaning of materiality. Thus, the Carella harmless error test for constitutional instructional defects cannot be satisfied, the error manifestly affects substantial rights, and Keys is entitled to a new trial.
IV
Conclusion
Changing the rules after the event and requiring a second trial is understandably troublesome, but a trial is not a game, and the Constitution is not a set of game rules. The Constitution is a solemn promise that the people of this nation have made to each other that neither life nor liberty shall be taken by our government without faithful adherence to certain basic principles. As Justice Scalia observed in Carella,
The constitutional right to a jury trial embodies “a profound judgment about the way in which law should be enforced and justice administered.” It is a structural guarantee that “reflect[s] a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” A defendant may assuredly insist upon observance of this guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt. That is why the Court has found it constitutionally impermissible for a judge to direct a verdict for the state.
491 U.S. at 268, 109 S.Ct. at 2422 (Scalia, J., concurring); Gaudin, 28 F.3d at 946-47 (quoting Carella, 491 U.S. at 268, 109 S.Ct. at 2422).
Our fundamental principles are subject to refinement and reinterpretation as we live and learn from experience. As distasteful as
Accordingly, because the record demonstrates that the jury did not determine the materiality of the alleged false declaration, the judgment of conviction is defective no matter how strong the evidence of guilt may be. We reverse and remand for a new trial.8
KLEINFELD, Circuit Judge, with whom BROWNING and LEAVY, Circuit Judges, join, dissenting:
I respectfully dissent.
Our decision today puts us at odds with eight other circuits. We are the only circuit to have resolved this issue as we now have. Our original panel decision, United States v. Keys, 67 F.3d 801 (9th Cir.1995), followed the similar approach in two othеr circuits. Six other circuits have since gone the same way. This national uniformity has been shattered by today‘s different approach. We got it right the first time.
Though hypertechnical in form, the question we resolve today has considerable practical importance. Two recent changes of law, for example, will require an enormous number of retrials under today‘s decision. One makes materiality in perjury and false statement cases an element to be submitted to the jury. See United States v. Gaudin, — U.S. —, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The other generally limits “use” of a firearm during and in relation to certain crimes to “active employment.” See Bailey v. United States, — U.S. —, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Requiring new trials after a long delay inevitably means many guilty people will go free, because witnesses will be unavailable, evidence will be lost, or surprise which exposed perjury (as happened to Keys) will be gone. Even where the retrials produce accurate results consistent with the original trials, much will be lost. The courts, jurors, lawyers and witnesses will have wasted their scarce time retrying cases in which guilt had already been fairly and accurately established in an earlier trial.
Here is the body of authority with which we today set up an intercircuit conflict: United States v. Webster, 84 F.3d 1056 (8th Cir.1996); United States v. David, 83 F.3d 638 (4th Cir.1996) (citing Keys); United States v. Randazzo, 80 F.3d 623 (1st Cir.1996) (citing Keys); United States v. Ross, 77 F.3d 1525 (7th Cir.1996) (citing Keys); United States v. Allen, 76 F.3d 1348 (5th Cir.1996) (citing Keys); United States v. Kramer, 73 F.3d 1067 (11th Cir.1996) (citing Keys); United States v. Viola, 35 F.3d 37 (2d Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995) (applying plain error review to jury instructions where supervening authority made instructions error pending appeal); United States v. Retos, 25 F.3d 1220 (3rd Cir.1994) (refusing to adopt per se rule that omission of an essential element (Gaudin error) constitutes plain error requiring reversal).1
These other eight circuits have applied
Analysis must begin with the text of Rule 52:
(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
When the Supreme Court reversed us in Olano, it gave clear instructions on how appellate courts should deal with errors and defects which were not brought to the attention of the trial court. The Court inferred from the text of Rule 52 that we are not permitted to take notice of errors and defects not brought to the attention of the trial court unless three conditions are met: (1) there must in fact be error or defect; (2) the error must be “plain” and (3) the error must affect “substantial rights.” 507 U.S. at 733-34, 113 S.Ct. at 1777.
“If the forfeited error is plain and affects substantial rights, the Court of Appeals has authority to order correction, but is not required to do so.” Id. at 735, 113 S.Ct. at 1778. If these conditions are met, appellate courts must exercise discretion whether to correct the error, under the criteria for the exercise of discretion set out in Olano. Id. at 736, 113 S.Ct. at 1778-79. Appellate courts may correсt error meeting the conditions only if one of two criteria for the exercise of discretion is met. One is “miscarriage of justice,” that is, conviction of an innocent person. Id. Keys has not attempted to argue on appeal that he is innocent.
The alternative Olano ground for the exercise of discretion to correct such error is that it “seriously affects the fairness, integrity or reputation of judicial proceedings.” Id. That standard is not met in the case at bar. Keys was given a fair trial under the law as it existed at the time. “Reputation of judicial proceedings” does not suffer from affirming a conviction under a jury instruction correct when given, but defective in light of a change in the law, if the defect would have made no difference to the outcome of the particular case. What really hurts the “reputation of judiciаl proceedings” is vacating a criminal conviction because of what laymen properly call a “technicality,” that is, a technical defect which made no practical difference in the particular case.
“Integrity ... of judicial proceedings” means their reliability as a means of distinguishing the innocent from the guilty. “[T]he central purpose of a criminal trial is to decide the factual question of the defendant‘s guilt or innocence ...” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). Omitting the element of materiality from Keys’ jury instruction had no bearing on reliability, because materiality was indisputable and not at issue.
The word “materiality” means that “the statement must have a natural tendency to influence, or be capable of influencing, the decision of the decisionmaking body to which it was addressed.” Gaudin, — U.S. at —, 115 S.Ct. at 2313 (internal quotation marks оmitted). Keys’ defense was that he did not do it, not that what he did was immaterial. He claimed he had not written the kite, did not send it, and that the former DEA agent was not the person to whom the kite was addressed. If the jury in the DEA agent‘s trial had believed Keys, acquittal would have been more likely. Whether the jury in that case believed the prosecutor‘s insinuation that Keys had sent the kite, or Keys’ denial, would have a natural tendency to influence whether the jury believed Keys.
Keys had an opportunity to argue materiality in his perjury case, albeit to the judge rather than the jury. The prosecutor asked the judge if he was making a determination, and the judge said “As to materiality, definitely. The court finds that it is material.” Defense counsel offered no argument to the contrary, doubtless because she did not want
The fork in the road where the majority goes the wrong way is in the choice whether to use
Burden of persuasion differs critically between subsections (a) and (b). Under subsection (a), the prosecution has “the burden of showing the absence of prejudice,” Olano, 507 U.S. at 741, 113 S.Ct. at 1781, and “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Subsection (b), by contrast, imposes the burden on the defendant:
It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, the Court of Appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial.... This burden-shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: while
Rule 52(a) precludes error-correction only if the error “does not affect substantial rights” ...Rule 52(b) authorizes no remedy unless the error does “affec[t] substantial rights.”
Olano, 507 U.S. at 734-35, 113 S.Ct. at 1778 (citations omitted; brackets in original). The error does not “affect substantial rights” just because the defendant had a substantial right to a different jury instruction. The phrase generally means that the error “must have affected the outcome of the District Court proceedings.” Id. at 734, 113 S.Ct. at 1778 (emphasis added). Keys has not shown why a jury might well have acquitted him had it been told to determine whether his lie about the kite was material. Therefore the choice between subsections (a) and (b) of Rule 52 determines the outcome of today‘s decision.
The choice between subsections (a) and (b) is compelled by the text of the rule, and supported by Olano and all the other circuits which have considered this question. Subsection (b) says it applies to errors and defects which “were not brought to the attention of the court.” Keys did not bring absence of the materiality element in the instruction “to the attention of the court.” Therefore
Griffith v. Kentucky has no bearing on the choice between subsections (a) and (b). Under Griffith, Keys is entitled to the benefit of Gaudin because that decision came down while Keys’ case was still pending on direct review. Evaluating the defect in his jury instruction under subsection (b) gives him the benefit of Gaudin. The choice between subsections (a) and (b) did not arisе in Griffith. In Griffith, defense counsel had objected to racially based peremptory challenges to
The majority reasons from our “solid wall of circuit authority” cases, Scott and Yang, that because there was at the time no error, and counsel properly did not object, that
Our “solid wall of circuit authority” doctrine was an exception to the general rule that invited error was not reviewable at all, except in “exceptional situation[s] where reversal is necessary to preserve the integrity of the judicial process or prevent a miscarriage of justice.” People of the Territory of Guam v. Alvarez, 763 F.2d 1036, 1038 (9th Cir.1985). See also United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir.1994); Wilson v. Lindler, 995 F.2d 1256, 1262 (4th Cir.1993); United States v. Ahmad, 974 F.2d 1163, 1164 (9th Cir.1992); United States v. Schaff, 948 F.2d 501, 506 (9th Cir.1991); cf. United States v. Baldwin, 987 F.2d 1432, 1437 (9th Cir.1993); United States v. Benny, 786 F.2d 1410, 1416 (9th Cir.1986) (when defendants themselves proposе the instruction, “review is totally barred“); United States v. Katzman, 461 F.2d 655, 656 (9th Cir.1972). Keys’ attorney proposed the defective instruction, and the judge gave it. Our contemporaneous decision in United States v. Perez, 67 F.3d 1371 (9th Cir.1995) (en banc), modifies our past invited error doctrine, but because Keys is entitled to raise the invited defect in the instruction regardless, under the “solid wall of circuit authority” doctrine, the Perez modification makes no difference to his case.
Griffith gives Keys another benefit as well. It turns an instruction which was not defective when given into “plain” error or defect.
But the defect in the jury instruction was still “not brought to the attention of the court.” See
The majority is concerned that it is unfair to require Keys to show that the defect affected substantial rights, because there was no error and he had no reason to object. That is incorrect, because forfeited error is still reviewable. “Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under
Nor is it unfair to require Keys to show that absence of the materiality element mattered in his case, as a condition of getting a new trial. It is unfair to the rest of society to vacate a conviction because of a defect which was not an error when made, and which the defendant has not shown to have affected his substantial rights. Wigmore explains that the orthodox English rule held that error in the analogous situation of аdmitting or excluding evidence “was not a sufficient ground for setting aside the verdict and ordering a new trial unless upon all the evidence it appeared to the judges that the truth had thereby not been reached.” 1 Wigmore on Evidence § 21 at 884 (Tillers rev.1983). An 1830 case in the Court of Exchequer created a new rule that “error of ruling created per se for the excepting and
Fairness to Keys is achieved by letting him bring to an appellate court‘s attention a defect in a jury instruction, even though it was correct when given and even though Keys himself requested it. Fairness to the rest of society is achieved by requiring Keys to show, as a condition of getting his conviction vacated, that the defect affected substantial rights.
Here is what we should do, in cases of unobjected to jury instructions correct when made, but plainly incorrect in light of a change of law while appeal was pending. We should read the briefs and relevant record excerpts and decide whether there was a “serious factual question,” Gaudin, 28 F.3d at 952, such that, had the jury been instructed under the law as changed, a reasonable jury might well have acquitted. If so, we should vacate the conviction so that the defendant gets a new trial. But if, in the particular case, it has not been shown that the new instruction would have made a difference, we should let the jury‘s determination of guilt stand. Thus, under my analysis, if a defendant checked the wrong box on a loan application, and the jury might well have decided that the loan would have been insured anyway, as in Gaudin, he should get a new trial. If a drug dealer indisputably carried a gun to a drug sale, and did not object to a jury instruction which included mere availability as well as active use and carrying of a firearm, he should not get a new trial despite the Bailey defect. A reasonable jury would have convicted him of carrying regardless of the “usе” language. Most often, criminal jury trials present two competing factual scenarios, or one factual scenario explained by two competing theories. This analysis is a practical way consistent with Olano and
I cannot agree with the majority‘s claim that application of subsection (b) is a “double-barreled message to counsel: (1) do not rely on our opinions; and (2) object to everything....” Our law is not so unstable that it commonly changes in relevant ways while cases are pending on appeal. As for objecting to everything, if a lawyer does that, his voice becomes mere background noise which a trial judge ignores. Good lawyers preserve their credibility with the judge and jury by limiting their objections to those for which there is some legal basis, and which matter to the case. If there is a subsequent change of law while the case is pending on appeal, and the lawyer did not object, he can still obtain a reversal under
Suppose in Keys’ case that the jury had been instructed that they could not convict unless they found not only that Keys had lied, but also that his lie was material. There is no reason to doubt that the verdict would have been the same. Keys had no materiality argument which could be made on the facts of his case, so the jury would have reached the same result had it been given a materiality instruction. Then why should Keys have his conviction vacated because the materiality instruction was not given? Considering whether the defect would havе mattered to the jury‘s decision does not usurp the jury function, because it argues for letting the jury verdict stand, instead of setting it aside because of a technical judicial cavil. Id. at 890. The “affecting substantial rights” language of
ANDREW J. KLEINFELD
UNITED STATES CIRCUIT JUDGE