United States v. Pizarro

ty the court attributed to Pizarro TORRUELLA, Before LIPEZ and refusing to consider arguments Pizarro’s KAYATTA, Judges. Circuit regarding the firearm enhancement. LIPEZ, Judge. Circuit I.

In this appeal Angel of Luis Pizarro- (“Pizarro”) Morales from his conviction Sentencing A. Appeal First and and sentence for conspiracy to distribute a ten-defendant trial that After lasted possession cocaine and heroin and for with approximately seven months Pi- cocaine, intent to distribute we exam- must zarro was found conspiracy of States, impact Alleyne ine the v. United distribute cocaine posses- and heroin and — U.S.-, 186 L.Ed.2d sion with intent to distribute cocaine. In (2013), on aggravated drug con- 2002, pursuant to an order of the First spiracy possession and convictions. Pursu- Council, Circuit Judicial the case was reas- ant inquiry, to that we hold the dis- signed sentencing.1 for trict by failing court erred to instruct the jury on the essential element of individual- The statutory sentencing ranges for drug quantity ized aggravated con- drug conspiracy possession, and prescribed spiracy count and 841(b)(1), § the essential element of in 21 vary U.S.C. depending drug quantity aggravated for the posses- upon the drugs amount of involved. For a sion applying count before a statutory conspiracy sen- or possession that involves tencing range that mandatory included a non-quantified small or amounts cocaine minimum heroin, sentence on each count. Howev- or mandatory there is no minimum er, since we beyond a reason- statutory ] sentence and the maximum sen- “conclude! able doubt the omitted twenty years tence is imprisonment. element[s] 841(b)(1)(C). uncontested supported by [were] § and over- See U.S.C. At the other evidence, whelming such that spectrum, ver- end of the conspiracy when a or dict would have been the same absent possession kilograms involves five or more errorfs],” we find the instructional kilogram cocaine or one or more of a States, errors harmless. Neder v. containing United mixture or substance a detecta- 1, 17, 527 U.S. heroin, sentencing range L.Ed.2d ble amount of (1999). Therefore, we affirm Pizarro’s from a mandatory runs minimum of ten aggravated convictions for the conspiracy years to a maximum imprisonment. of life 841(b)(1)(A).2 possession charges § with enhanced Id. Casas, (1st response backlog In to a of cases on the States v. 425 F.3d 54-55 Cir. docket, 2005). judge’s trial randomly the case was reassigned judge to another district so that 841(b)(1)(B) provides five-year 2. Section for a sentencing expedited. could be See United mandatory forty-year minimum and a statute- twenty years should sentence of maximum court deter sentencing, the district At conspiracy count. 841(b)(l)(A)’s statutory applied maxi § mined that applied because imprisonment mum life we held argument, to this response kilograms or five conspiracy involved drug it is the purposes, Apprendi that “for more kilogram one or cocaine or more of conspir- to the entire attributable quantity containing her or of a mixture substance statutory maxi- acy that determines evidence, of the By preponderance oin. Casas, at 66 n. 58. We mum.” accountable for found Pizarro the court error, if one any Apprendi concluded kilograms of cocaine and than 150 more (1) occurred, was harmless because weap enhancement for applied a two-level overwhelmingly established evidence role en and a three-level possession five kilo- involved at least conspiracy a life imposed court then hancement. The kilogram of her- of cocaine or one grams sentence, time was mandated which at that statutory max- oin, support amounts ap Sentencing Pizarro by the Guidelines. (2) Pizarro imprisonment, life imum of his conviction and sentence. We pealed pointed had not co-appellants and his Pizarro’s conviction but vacated affirmed conspiracy-wide any evidence that error under Unit his sentence because of that threshold amount quantity was under Booker, 220, 125 ed States v. any argument as to how or offered (2005). See United 160 L.Ed.2d otherwise. Id. jury could have found (1st Casas, 23, 59-60 States appellants explained that the 65-66. We Cir.2005).3 conspiracy- the evidence of did not contest that sets drug quantity-the amount wide also multiple co-appellants Pizarro and Apprendi pur- for statutory maximum Ap there was error under argued & n. 58. We therefore poses. Id. Jersey, v. New prendi re-sentencing that “on remand for ordered (2000). In 147 L.Ed.2d 435 will be statutory maximum appropriate held that Apprendi, stated imprisonment life conviction, prior fact of a than the “[o]ther 841(b)(1)(A).” § at 66. Id. penalty for a any fact that increases statutory remanding, “clarified] In we beyond prescribed crime did not determine jury, to and maximum must be submitted a verdict each drugs defen- doubt.” Id. at amount attributed proved beyond reasonable dant,” necessary n. which was Pizarro and his co- id. 120 S.Ct. 2348. Sentencing drug quanti sentencing for under appellants asserted that since witnesses had Cooperating a fact that ty conspiracy for the count was Guidelines. and, at sen- statutory drug quantity, maximum sen testified about increased the ques- into tence, had called by jury tencing, found defendants should have been Id. credibility of those witnesses. They argued tion the reasonable doubt. court had to that the district explained that in the of such a determi We absence 841(b)(l)(C)’s in order to nation, credibility make determinations statutory § default error, i.e., be- specified drug it could not "show ry harmless maximum sentence for quantities yond less than those listed subsection doubt that a lower sen- a reasonable (A). post- imposed under the tence would not be regime,” Pizarro’s sen- we vacated Booker We that Booker error existed insofar as 3. held Casas, resentencing. tence and remanded sentencing had occurred under a manda- F.3d at 59-60. gov- tory system. Guidelines Given that prove ernment conceded that it could not drug individualized quantity, calculate and to dispute. resolve the facts in Id. at 379- “[a]ny clear that we made conclusion as to 402. drug quantity

individual should be based We also found that Pizarro’s PSR had on review of the record.” Id. We entire problematic the same that, lack of support that a also observed number of the Pre- on Pizarro’s first appeal, we had specifical- (“PSRs”) Reports sentence contained the ly noted-in the PSRs several of Pizarro’s including “findings “defect” of not as to the co-appellants. Therefore, Id. at 398-400. quantities types drugs or attributable to we ordered the Probation provide Office to the individual defendants.” Id. at 63. .Pizarro a proper with PSR that identified co-appellants

Pizarro and his had specific drug also quantities attributable to argued him, judge respon- successor “include[d] references to the trial rec- sible initial sentencing for the had not supported ord” that drug quantities, those adequately familiarized himself with the transcripts “identifie[d] the trial which voluminous record. held that a re- supported] any We conclusion that pos- he placement judge could become sufficient- weapons sessed or weapon possession ly familiar with the record to assess co-conspirators was foreseeable to credibility, but analyze we declined to him.” Id. at 401.4 We further or- sentencing judge’s familiarity dered because that “Pizarro should have a real we were vacating the sentences on inde- opportunity to challenge inference [an] Casas, pendent grounds. Booker he could weapons] [that foresee the use of F.3d at 56-57. by arguing question of foreseeability to willing fact-finder argu- consider his Sentencing Appeal B. Second ments,” and we left challenge Pizarro’s enhancement, a leadership the district court fact-specific found Pizarro issue, 4,200 responsible for more than to be resolved on kilograms remand. Id. at imposed cocaine. The court a two-level firearm enhancement and a two-level en- Sentencing Appeal C. Third and hancement for Pizarro’s leadership role in the offense. The court resentenced Pizar- Pizarro’s reassigned ease was for a sec- (30 ro years) to 360 months in prison. ond time to a judge different district court again Pizarro appealed, and we sentencing vacated his because the former judge had 15, 2012, sentence for a May second time because the retired. On the district court district court analyzed had not responsible witness found Pizarro in for excess of credibility calculating the drug quantity kilograms of cocaine and resentenced 841(b)(1)(A) conspiracy the § foreseeable to Pizarro. him under to 280 months (23 United v. Correy, States years) imprisonment F.3d as to each 1/3 (1st Cir.2009). 378-82 We the concurrently. ordered count to be served Pizarro time, district court on remand indepen- appeals to make now making third nu- credibility dent necessary assessments as merous arguments, including that the dis- 32(f) 4. Pursuant to Federal Rule days sentencing, Proce- Criminal before the and Rule 32(c), probation generally dure provides procedures parties' objec- officer for the presentence investigation must sentencing conduct tions to the The court PSR. then report imposes submit a to the court objections before it examines the PSR and the to the 32(e) provides a sentence. Rule deciding proper that the Pro- PSR when sentence and provide bation considering requisite Office must the PSR to the factors for that sen- defendant, tence, attorney, credibility the defendant’s an such as the determinations attorney government thirty-five for the at least here. appeal Alleyne time by direct at the was de Alleyne error trict committed mandatory minimum sentence applying Kentucky, cided. See v. 479 U.S. Griffith drug find- requisite quantity without the 314, 328, 708, 93 107 S.Ct. L.Ed.2d 649 Notably, argument that ings jury. by (1987) (“[A] rule for the conduct of new aggra- for the the convictions challenges prosecutions applied to be criminal ret drug quanti- with enhanced offenses vated roactively pending ... to all cases on di 841(b)(1)(A). main- § He also ties under final, with yet rect review or not no ex district court committed tains ception in which the rule for cases new errors, sentencing which some of multiple with the past.”). a ‘clear break’ constitutes to comply from its failure with our resulted States, Ramirez-Burgos In v. United Correy. remand instructions Casas and (1st Cir.2002), F.3d 23 we held that a new v. Supreme precedent Unit Court

II. —Jones States, ed 119 S.Ct. 526 U.S. analyze the Alleyne first claim of We (1999) applied retroac L.Ed.2d 311 — Pizarro’s error related to convictions. tively to case. Ramirez-Bur Ramirez’s A. Rule gos, previously had 313 F.3d at 29. We convictions, affirmed Ramirez’s vacated Alleyne, Supreme In held that Court sentence, his and remanded to district mandatory “any fact that increases the minimum is an ‘element’ must be sub- at 27. resentencing. court for Id. After jury.” Alleyne, at mitted 133 S.Ct. one day Ramirez was resentenced and af Therefore, a district court errs reply ter he his brief his second filed statutory mandatory minimum applying a appeal, decided Supreme Jones. sentencing starting point without Citing Griffith, Id. at 28. we held on the fact that jury finding triggers bring jury- Ramirez a new claim of could minimum. The Court held instruction under Ra Jones because required by Apprendi such a rule was mirez’s on direct appeal case was still law, “[a]ny that, fact in- principle the time decided. Id. Jones was at 29 penalty for a an ‘ele- creases crime is (citing Griffith, 479 U.S. 107 S.Ct. ment’ that must be submitted to the 708). States, See also Berman United beyond a and found reasonable doubt.” 58 S.Ct. 82 L.Ed. Alleyne, (citing Appren- (1937) (“Final in a judgment criminal 10, 490, n. 530 U.S. at 483 di casé means sentence. The sentence is the 2348). Alleyne, Supreme Court Dodson, judgment.”); United States prior holding its in expressly overruled (4th Cir.2002) (hold 268, 275-76 States, 545, Harris v. United U.S. affirms appeals (2002), where court 153 L.Ed.2d 524 to did not need find a fact that vacates sentence re convictions but and mandatory increases the minimum. Al- count, any resentencing mands for on leyne, at 2155. government 133 S.Ct. The not final judgment of conviction is as to properly Alleyne concedes error oc- counts). all to both respect conspiracy curred with in Alleyne decided we was after possession counts. and

had twice Pizarro’s sentence and vacated Application Alleyne. B. The to this resentencing, remanded after Pi- for Appeal brief in opening zarro had filed his this appeal. third fact that the Supreme The Supreme

The decision in Court’s for applies any petition on Court Pizarro’s a writ Alleyne pending case denied appeal, of certiorari after his first Pizarro- must government’s first address the claim States, Morales v. 546 U.S. United may Pizarro have waived his Alleyne 1397, 164 (2006), 126 S.Ct. L.Ed.2d 99 does argument because of way he conducted change judgment the fact that his this appeal. government The takes the Alleyne conviction was not final at the time position that “[w]hen Pizarro filed ap- his decided, given was that we had vacated his pellate February brief on he had resentencing. sentence remanded for opportunity but failed to raise on ap- Berman, See 58 S.Ct. 164 peal claim that his sentence was im- (indicating judgment that a of conviction in posed violation of Apprendi v. New Jer- would not be final if the sentence were sey, vacated); Theriot, see also Mercer v. (2000), L.Ed.2d 435 10-year since the man- 152, 153, 12 L.Ed.2d datory minimum was based on the court’s (1964) curiam) (per (holding “it is set findings as drug quantity.” However, tled that Supreme may [the Court] consid government simply is wrong. Pizarro questions er appeal raised on the first did raise Alleyne his claim in opening his petition [after which the Court denied a for by arguing brief that “a conspiracy-wide, certiorari], a writ of as well as those judicial determination quantity by a pre- appeals upon were before the court of ponderance [of the pur- evidence] appeal,” second after which the Court pose of establishing statutory sentencing granted petition for a writ of certiorari range § in a 21 U.S.C. conspiracy (internal quotation omitted)); marks Dod error.” He concluded that “after Appren- son, 291 (citing F.3d 276 n. 3 Mercer for di, required should be to make an the proposition following a second di individual determination of drug quantity rect appeal brought after a resentencing beyond a reasonable doubt to establish hearing ordered the court appeals in statutory sentencing range in a 21 U.S.C. a criminal defendant’s appeal, first direct § conspiracy.” argument that the petition the defendant can Supreme “statutory sentencing range” applied was issue, Court for every certiorari as to in in error inescapably encompassed an Al- cluding those the appeals court of denied leyne claim regarding mandatory mini- appeal). his first government mum. As the says he should Therefore, government as the recognizes done, Apprendi sup- Pizarro cited brief,5 supplemental its Pizarro’s case Hence, port argument. under the pending appeal direct at the time itself, government standard set out Court handed down Al- Pizarro Alleyne raised his claim on appeal leyne, and Pizarro can now challenge his opening his brief.6 convictions under the new rule announced Alleyne. Ramirez-Burgos, See 313 Moreover, in supplemental his brief filed F.3d argument, after oral Pizarro specifically characterizes his claim as one under Al- C. The Errors Here leyne. precedent Apprendi, Under our explaining Before Alleyne supplemental the er Pizarro’s brief alone government concedes, rors that we Alleyne have been sufficient to raise the During argument, 5. oral we government implicitly recog- instructed the 6. As the itself- nizes, Alleyne Pizarro could not have cited government as supplemental and Pizarro to file authority opening in his brief because it was Alleyne briefs on the issue. Alleyne filed before was decided. 292 (same). LaFreniere, results” ele- Just as the “death v. States

claim. See United Cir.2001) (1st (finding drugs F.3d ment makes the distribution submitted “properly was Apprendi issue from separate death results a crime where an “we extended disposition” where drugs without a death the distribution of govern- LaFreniere and the invitation to 841(b)(1) §in cre- resulting, drug quantity briefs address- supplement their ment possession aggravated conspiracy ates ”). Apprendi possible relevance offenses. Hence, reject government’s position we that Pizarro’s supplemental brief its Alleyne, operative ques Under waived” on ‘Alleyne potentially claim is conspiracy a is whether it is drug tion for appeal. that is a drug quantity the individualized Alleyne, each Apprendi and now Under mandatory mini “fact that increases the 841(b)(1), § of the subsections of U.S.C. sentence, at Alleyne, mum” 133 S.Ct. drug quantities and with its associated already question answered We separate crime. sentencing ranges, Colón-Solís, v. 354 F.3d 101 United States Indeed, has held. Supreme Court so (1st Cir.2004), we held that a man where Citing Alleyne Apprendi, Supreme made datory potentially minimum “is — States, in Burrage v. United by finding conspiracy that the available U.S.-, 134 S.Ct. 187 L.Ed.2d 715 (or contemplat as a whole handled at least (2014), aggrava- explained because ed) amount,” necessary triggering but 841(b)(1) §in ting element death re- —that mandatory applied minimum “cannot be from the use of the distributed sults coconspirator’s] case with particular [a the minimum and maxi- drug—“increased finding trig out an individualized that the mum to which [the defendant] sentences to, or fore gering amount was attributable exposed, it is an element that must be was by, him.” Id. at 103.8 Colón- seeable beyond a submitted to the and found prior Alleyne; there Solís decided Burrage, 134 S.Ct. at reasonable doubt.” Colón-Solís, fore, after individualized 2162-63; at (citing Alleyne, sentencing judge. finding was made Apprendi, 530 U.S. However, following Court’s 2348).7 Burrage concluded that a violation Alleyne, drug quantity decision 841(a)(1), § finding without a on the mandatory minimum for a 21 triggers the element, aggravating is a “death results” drug § like the conspiracy, U.S.C. aggravated lesser-included offense of statutory maxi quantity triggers offense that includes the “death results” now found 841(b)(1). Apprendi, mum under must be § element under Pena, doubt.9 a reasonable n. 3. See also United States v. Cir.2014) (1st 508, 517, But, pur- quantities those serve different F.3d Paladin, aggravating drug quan- United 748 F.3d 438 7. Like the element of 9.In States (1st Cir.2014), the defendant also made the tity, aggravating "death results” is a distinct that, argument Alleyne, Colón-Solís re- after 841(b)(1). § element in drug quired the to find an individualized minimum, mandatory quantity triggering recognized principle: 8. Casas itself "In unnecessary for us to decide the but it was finding, the absence of such an individualized ("Paladin in that case. See id. at 452-53 issue drug quantity conspira- attributable to the urges reading of Colón-Solís and a collective cy automatically as a whole be shifted cannot require jury make an indi- Casas, to the 425 F.3d at 57-58 defendant.” quantity drugs vidualized Colón-Solís, 103). defendant.”). particular to a attributable conspiracy-wide poses: eighty-one kilograms while is the tribute of cocaine and, count, as with the quantity governs statutory conspiracy the maxi Casas, sentenced on mum, possession the count to 425 F.3d at 66 n. it is the 23 1/3 years imprisonment i.e., under quantity, quantity the individualized 841(b)(1)(A), § carrying ten-year the defendant, man- that is foreseeable to the However,, datory minimum. jury the minimum, did triggers mandatory the Colón- not make requisite finding the of drug Solis, 103. fact, quantity for that sentence. the conspiring for Having been indicted jury was instructed that quantity was ir- possess to with intent to distribute 1.4 relevant: “The is not United States re- 9,445 kilograms kilograms of heroin and of quired prove quanti- amount or cocaine, recently Pizarro most was sen ty charged was as in the indictment. It conspiracy tenced on the count to 23 1/3 only prove need beyond reasonable doubt years prison under 21 U.S.C. that there was a measurable amount of the 841(b)(1)(A), § applies mandatory which a controlled substance.”11 years imprison minimum sentence of ten Henceforth, Alleyne Ap under correct, however, ment. Pizarro is prendi, jury the must find the mandatory- jury finding did make a with re statutory-maximum minimum and trigger spect to the quantity drugs the con ing elements. In a drug conspiracy pos or Indeed, spiracy foreseeable to him.10 we session conviction mandatory with a mini already held that to be the case: “We mum and statutory maximum based on clarify wish verdict of drug quantity, must find those determine, guilty did not the amount of requisite drug quantities.12 example, For drugs attributed to each defendant.” Ca conspiracy for a cocaine conviction under sas, Therefore, F.3d 65 n. 56. 841(b)(1)(A), § which imposes mandatory Alleyne error occurred in Pizarro’s case minimum years of ten and a statutory conspiracy conviction. maximum of life imprisonment, (1) There was also error in now find must that the defendant con possession 846; (2) § Pizarro’s conviction. He was spired, knowingly or intention (3) possession cocaine, 841(a)(1); indicted for with ally § intent to dis- to distribute years quantity finding possession charge) by Pizarro’s trial occurred before the for a 10. hence, Alleyne; Court decided there preponderance the evidence to determine precedent requiring was no at the time advisory Guidelines See Ra sentence. drug quantity to make the individualized mírez-Negrón, (recognizing 751 F.3d at 4849 finding conspiracy on the count. may drug quanti that the district court make ty findings by preponderance of the evi Again, this instruction reflected the state of advisory dence to calculate an Guidelines the law at that time. 841(b)(1)(C) offense). § sentence for a After hand, sentence, calculating advisory mandatory 12. On the other Guidelines where statutory minimum and maximum do not de- the district court must then use its discretion court, pend drug quantity, any without impose statutory sentence within sen jury finding, may drug quantity make its own tencing range jury’s mandated verdict. findings .sentencing purposes. For exam- If, 841(b)(1)(C), § for a conviction under ple, during sentencing for a conviction under advisory court determines that the Guidelines 841(b)(1)(C), § where the indictment had not greater twenty years, sentence is than specified quantity of cocaine or heroin or 841(b)(l)(C)’s statutory twenty-year § maxi amounts, only charged small a district court caps any mum nevertheless sentence that the may drug quantity make an individualized give. district court can (and conspiracy charge drug for a , in that case imum-triggering element a total of five involved conspiracy in a firearm) cocaine, optional a as an (brandishing of more of or kilograms 841(b)(1)(A); jury at consider. finding 530 U.S. that the should Apprendi, § (4) 2348; at least five where the verdict form jury instead “indicated on foreseeable to cocaine were a kilograms of or carried fire- Alleyne had ‘[u]sed 841(b)(1)(A); defendant, Alleyne, § crime of in relation to a during arm Colón-Solís, 2155; 354 F.3d at at 133 S.Ct. violence,’ finding a not indicate but did under a conviction possession For 103.13 ‘[bjrandished.’ Al- that the firearm was 841(b)(1)(A), its nature § a crime court, trial at 2156. The leyne, 133 S.Ct. individual, of an the conduct only assesses however, mandatory minimum applied the co-conspirators, the conduct of rather than a finding by preponder- its own based on (1) find that the defendant jury must evidence that the defendant ance of the intentionally possessed with knowingly or Thus, the weapon. Id. had brandished (2) 841(a)(1); distribute, § intent sentenc- Alleyne was confined to error cocaine, kilograms five of least court made a find- ing, where the district 841(b)(1)(A); Apprendi § that was aggravating on an element 2348; Alleyne, rejected by jury. In presented to and 2155.14 Alleyne essence, judge the trial sentenced offense,” aggravated id. at separate, for “a Alleyne Nature of Error D. The not to jury had itself decided Alleyne forms of There are different See, e.g., doubt. find a reasonable sentence, imposed a that can lead to 323, 328-29, 90 Georgia, Price v. trial, improper involving a after (1970) (holding 26 L.Ed.2d 300 mandatory minimum with- of a application a on both that where was instructed jury finding. form requisite out the One and lesser-included offense greater offense analyzed as a trial Alleyne error jury convicted on the lesser-includ- and the error, sentencing a error. The another as offense, provision jeopardy the double ed Alleyne error affects the nature of the offense). greater on the prohibited retrial a remedy might available to defen- be Therefore, vacated Al- dant. for re- leyne’s “remand[ed] sentence and jury’s ver- sentencing consistent with the itself, the error was of the Alleyne dict,” would mean id. at which form sentencing variety. The verdict for the only be sentenced applicable Alleyne min- should had included the discretion, impose then a the court will 13. In the case of conspiracy, a if the In its cocaine required findings statutory range. jury makes the threshold sentence within kilograms, but does not indicate at least five specific quantity, and the district court choos- conviction, if the conspiracy 14. As with mandatory mini- es to sentence above the required makes the threshold mum, the court must make an individualized possession kilograms for a cocaine least five finding by drug quantity preponderance count, specific quanti- indicate a but does not have to find the evidence. The court would to sentence ty, and the district court chooses specific cocaine foreseeable to quantity minimum, mandatory it must make above recommended the defendant to determine the finding by preponderance of drug quantity Sentencing Guidelines. sentence under the the recommended evidence to determine Colón-Solís, F.3d at 103. That fact- See The court the Guidelines. sentence under credibility finding may require assessments impose a sen- discretion to will then use its testimony any witnesses on whose statutory range. tence within the Correy, 570 F.3d at 380-81. court relies. See using carrying mum, i.e., or a firearm in error, offense of the Apprendi was “indis- tinguishable” to a crime of violence. relation from the “failure to submit an jury” element to the occurred hand, On the where a defen other States, 1, Neder v. United 527 U.S. indicted for and of an dant was convicted 1827, (1999).16 144 L.Ed.2d 35 Re- jury offense and the was not aggravated cuenco, 220, 222, 548 U.S. at 126 S.Ct. triggering instructed on ’the element the 2546. the district court erred sentence, mandatory minimum statutory by refusing to instruct jury the on “materi- that minimum ap but was nevertheless ality” as an element of tax fraud. plied sentencing, Alleyne the error is 4, 119 S.Ct. 1827. Recuenco error, analyzed as an instructional occur “[bjecause explained jury Neder’s did ring at trial. The Supreme Court’s deci not find him guilty of each of the elements Recuenco, Washington sion in 548 U.S. of the offenses with which charged, he was 212, 2546, L.Ed.2d 466 its verdict is no more fairly described as a (2006), There, dictates conclusion. complete finding of guilt of the crimes for jury guilty had found defendant sentenced, which the defendant was than is deadly weapon, assault while armed with a Recuenco, the verdict here.” 548 U.S. at defendant, judge but sentenced the 221, Hence, 126 S.Ct. 2546. in a case objection, over his for assault while armed jury where the was not instructed on an firearm, separate, aggravated with a of aggravating element necessarily and thus subject greater statutory fense to a maxi did not make a finding element, on that 215-216, 225, mum sentence.. See id. at the Supreme Court explicitly equated the Alleyne, 126 S.Ct. 2546. Unlike in the Apprendi error imposing that element’s given Recuenco had not been statutory associated sentencing enhance- element, option finding aggravating ment with the Neder failure to instruct on i.e., deadly weapon awas firearm. an Likewise, element of the offense. even court, therefore, Id. The trial committed before the Supreme Court decided Re- Apprendi by error imposing mandatory cuenco, analyzed Apprendi we too had er- statutory sentencing enhancement without See, ror aas failure to instruct jury. requisite on the aggravating Pérez-Ruiz, e.g., United States v. 353 F.3d element of a firearm.15 (1st Cir.2003) (analyzing Apprendi an “[fjail- Supreme The Court held that the drug error in a conspiracy case as “the sentencing ure to submit a factor to the failure to necessary drug submit the type jury,” which increases the statutory quantity questions maxi- jury”). Supreme Ap- 15. The statutory characterized the The element that increased the prendi Blakely properly maximum in is more error Recuenco as error. Recuenco Recuenco, "aggravating termed an element” than a 548 U.S. at 126 S.Ct. 2546. “sentencing factor.” The Court ex- explained, Blakely As the Court "In Wash- [v. plained Apprendi “sentencing that the term ington, 542 U.S. “appropriately factor” stance, describes a circum- (2004) ], L.Ed.2d 403 we clarified that 'the may aggravating which be either or "statutory Apprendi purposes maximum” for character, mitigating supports spe- judge may impose is the maximum sentence a range cific sentence within the authorized solely on the basis in the facts reflected jury's finding that the defendant is verdict or admitted the defendant.’ particular Apprendi, of a offense.” Recuenco, 548 U.S. at 126 S.Ct. 2546 Hence, at 494 n. 120 S.Ct. 2348. we refer Blakely, statutory to a factor that increases maxi- 2531). "aggravating mum or minimum as an ment,” ele- opposed "sentencing to a factor.” review on wheth- plain (depending can result or error Apprendi an error Just as maxi- preserved) appropriate on the the failure instruct er the error from element, Alleyne mum-triggering whether a reasonable to determine to instruct on from failure can result necessarily aggrava- have found Indeed, minimum-triggering element. doubt. ting element a reasonable in Pizarro’s case result- errors v. Delgado-Marrero, See United States instructional omissions. ed from such (1st Cir.2014); Unit- cf. jury on court did not instruct the district Cotton, 625, 631-34, ed v. States drug quantity element the individualized (2002) 152 L.Ed.2d 860 drug quantity conspiracy charge or the the plain unpre- error to an (applying review Hence, possession charge. of the element error).17 Apprendi served error, an in- like Alleyne an instructional error, Apprendi properly is re- structional Al- E. Pizarro’s Preservation of the juris- the Supreme viewed under Court’s Sentencing leyne Error at the on an on failure to instruct prudence of the crime. element Although ordi instructional errors narily preserved must be at the time of the Al The distinction between trial, precedent our that instructional holds in sentencing that occurred leyne error are even if a Apprendi preserved errors Alleyne Alleyne itself ánd the instructional object sentencing. not defendant does until avail that we have here affects the errors Díaz-Arias, See, e.g., United States v. ability plain of harmless error review. or (1st Cir.2013). that a Observing F.3d a where trial court made In a case obligation object only has an party finding aggravating on an element cause,” “inimical something to his we have (as Alleyne rejected was noted that defendant would have “no itself), no the standard of review makes ensuring eligibility interest his for a if Alleyne, After and Apprendi difference. Pérez-Ruiz, sentence.” 353 F.3d at longer sentencing imposes court a sentence for Moreover, recognized we that “a jury has aggravated an crime that will not whether there is defendant know rejected, al the error will considered Apprendi sentencing, an error until aggravated an ways plain be and such if court then considers a sentence necessarily must be vacated. On sentence maximum.” hand, above the United States the court failed to the other where (1st Nelson-Rodriguez, ele 319 F.3d aggravating on an instruct Cir.2003). Hence, (as Recuenco), held that a never had we have ment Apprendi preserved that ele finding a chance to make a claim error situation, chal- appeal sentencing ment. In such either harmless if a defendant at that, 841(b)(1)(C) writing judge mandatory § 17. because of a minimum from believes 841(b)(1) sepa- § each defines a statutory imprison- subsection and the of life maximum crime, Burrage, at 887 & n. rate 841(b)(1)(A). § He concludes ment from (or may plain) not solve a non-harmless that, logic ap- Burrage, under such Alleyne by taking a manda- instructional error wholly proach legislating amount (or one) tory from minimum the absence of and, hence, (or new crime a non-harmless statutory maximum one subsection and a error) drug plain failure on the to instruct words, from another. In if the court other vacating quantity require elements would Alleyne had found the less, error here non-harm- possession under conspiracy and convictions writing judge new sen- believes the 841(b)(1)(A) mandatory mini- carrying § tencing range years could have been zero ma. imprisonment i.e., taking to life the absence — lenges imposition proposed imposi- jection “the or preserved would have Alleyne applicable tion of a term that exceeds the claim for our review now. See United Pérez-Ruiz, Amirault, (1st statutory maximum.” 353 States v. 224 F.3d Casas, Cir.2000) F.3d at 14. In we (holding also treated that- pre claim was Apprendi preserved long claims as as served for subsequent appeal by objection objected the defendants had at sentencing. original sentencing hearing). We need Casas, 425 F.3d 59-60.18 not resolve whether Pizarro in pre fact Alleyne served his claim appeal, for this brief, supplemental govern- its however, as we can conclude that the error ment claims the unpre- error was See, in any event e.g., harmless. Unit served and applies plain below ed Soto-Beníquez, States v. test as part argument.19 of its As we (1st Cir.2004) (“We have already deter Casas, reported objected “Pizarro [at any Apprendi mined that error as to drug sentencing] his initial did not harmless; amount or type would be a for make a on the drug quanti- issue of tiori, occurred.”). no plain error We ty. When the judge district asserted that therefore presume, without deciding, that issue, there was no Apprendi Pizarro’s applies harmless error review here. responded believe, counsel Your ‘[w]e Honor, there is room in that re- F. Harmless Error Review for Instruc- Casas, spect.’” 425 F.3d at 59. We ob- tional Errors objection “by served this its nature concerns,” Apprendi raised id. at 60 n. The Supreme Court addressed which also would have sufficed raise an harmless error review for an omitted ele Alleyne claim States, based on the same Sixth ment Neder United trial, right Amendment to a (1999), see Al- 144 L.Ed.2d 35 leyne, 133 at (noting 2163 & n. 5 describing inquiry as whether it is principle logic “there is no or beyond to distin- “clear a reasonable doubt that a guish facts that raise the maximum from rational would have found the defen minimum”). those that increase the Al- dant guilty absent the error.” at Id. though Pizarro explicitly object did not on 119 S.Ct. 1827. The Court held that “[i]n grounds again situation, these at his most recent this a reviewing where court con (his third), sentencing hearing prece- beyond our cludes a reasonable doubt that the that, suggests dent assuming Pizarro did omitted element was uncontested and sup not original objection, evidence, abandon his ported by overwhelming ob- such panel disagrees 18. At least one member of the mens rea in a case that murder enhances the Pérez-Ruiz, reasoning our with offense). Nelson- Adopting base level that view Rodriguez, progeny holding and their that a require prece- would our court to revisit our preserves Apprendi by defendant an claim ob- event, holding any dents otherwise. In as view, jecting sentencing. at Under this Pérez- plain-error Pizarro’s conviction survives both et al. cannot survive the Ruiz review, and harmless-error our result does recognition drug quantity Court’s —or depend preserved on whether Pizarro an any sentencing factor—is an element of the objection Alleyne error. that, charged offense. The rationale is when offense, charges the indictment an enhanced though Alleyne 19. Even had not decided been (and hardly silently defendant can stand below, yet, objection if there had been no review) then later invoke harmless error Alleyne claim would have been appro- when the reviewed for instructions fail to include priate drug quantity any plain mention of more Harakaly, error. See United States v. objection than the defendant could withhold (1st Cir.2013). (such any to the omission other element (1st Cir.2013). Finally, 88, 95-96 have been the F.3d that the verdict credibility argu- error, in- did make the erroneous while Pizarro same absent appeal harm- to chal- sentencing found to be properly is ments struction The 119 S.Ct. 1827. determina- lenge drug quantity Id. at the court’s less.” writing judge asserts concurrence there is no indication sentencing, tion that, the Court’s statements ques- based on argument called into that Pizarro’s the omis- prior precedent, its Neder and sentencing other than the anything tion an element is harmless when sion of respon- that Pizarro was court’s conclusion court draws two conclusions reviewing co- kilograms than 150 sible for more a reasonable doubt: the element beyond argue Pizarro did not caine. uncontested, supported and the element is him him have found that convicted could case of by overwhelming evidence. this kilograms than five responsible for less error, the concur- instructional Hence, not contest Pizarro did cocaine.20 position that the omission rence takes the drug quantity elements. the omitted harmless if the defendant would not be appeal or on had asserted either below argues that government The also jury could have properly that a instructed introduced at Pi- overwhelming evidence in his favor on the omitted element. found that Pizarro was zarro’s trial established this panel need not decide whether kilograms five responsible for least because, in law is correct view of the cocaine, drug quantity for requisite case, conclude a reasonable we 841(b)(l)(A)’s mandatory mini- ten-year § that Pizarro has never contest- doubt both reviewing may A conclude mum. drug quantity the omitted elements ed doubt that the omit- beyond a reasonable overwhelming they supported by were by over- “supported ted element was evidence. if the evidence was of whelming evidence” brief, quality that govern- significant quantity such a supplemental In its “incontrovertibly the ele- Pizarro conceded that he it establishes” argues ment Neder, 16-17, 119 kilograms ment. responsible was for at least five 1827; Bailey, 270 not examine whether see also United States v. of cocaine. We do (1st Cir.2001) (finding that affirmatively admitted that thresh- F.3d Pizarro however, “overwhelming” because we con- evidence was not quantity, old because that, find judge permissibly Pizarro has not could “[w]hile clude like by preponderance of the evi- contested the omitted elements. At his those facts dence, only jury permissibly and a could find sentencing, first Pizarro asserted doubt, it is not any drug quantity not make them reasonable did contrary must have findings; argue he did not that-a so clear reasonable doubt”); beyond a reasonable finding possible. on the elements was found them (similar). Pérez-Ruiz, Moreover, at 18-19 argument appeal Pizarro’s 353 F.3d government’s evidence on regarding the failure to instruct on the Even where “strong,” is that evi- drug quantity elements “establishes the omitted element error; if overwhelming competing Alleyne says that there was noth- dence is inherently evidence “not incredible.” ing about whether that error was harm- is F.3d Harakaly, Prigmore, less.” See United States v. United States elements, as the suggest We a credibili- have "contested” the omitted do not mean to ty argument, explaining how a of less is used in Neder. term kilograms possible, than five was could not (1st Cir.2001) sum, (citing In because we have found the omit- 1827). drug ted element of quantity to be both supported by uncontested and overwhelm- case, overwhelming sup- In this evidence evidence, we need not decide whether of at least five ports requisite findings the absence of a required contest kilograms. found Pizarro order to find harmless error. In the cir- possession with intent to distribute co- case, cumstances of verdict caine, explained opening and Pizarro in his would have been the same absent the er- Agent Jay brief that DEA Stoothoff testi- ror. We therefore find the error harmless kilograms fied that cocaine beyond a reasonable doubt.21 Casas, amount seized. See also (explaining 54 n. 39 that two DEA m. agents identified Pizarro as one of the suspects participating in the March We thus turn to Pizarro’s claims airport transaction from which the of error related to his most recent sen agents containing secured four suitcases Independent errors, tence. of the cocaine). kilograms the 81 At Pizarro’s implicated convictions, which his Pizarro sentencing hearing, first Pizarro’s counsel argues that ignored the district court our stated that the kilograms actually had prior by refusing remand order to engage Further, presented been court. Pizar- in credibility respect assessments with description ro’s own of the in- evidence the conspiracy drug quantity attributable multiple testifying cludes witnesses to him and refusing to consider his Pizarro was in distributing quan- involved arguments regarding the firearm enhance tities of cocaine well kilograms. over five ment. agree, We and hence we must va fact, evidence showed that “Pizarro cate his sentence.22 coordinated the shipment drugs through airport Rico,” Correy, Puerto Drug Quantity A. Individualized F.3d at cooperating and “seven wit- During sentencings, the first two nesses ... identified Pizarro as a member district court conspiracy jury’s of the and concluded that described his role therein,” Casas, specific any credibility and verdict resolved is- activities Hence, testimony relating F.3d at 54 n. 39. sues about the we conclude be- yond a drug quantity reasonable doubt that foreseeable to Pizarro. In the omitted element was “supported by overwhelming Correy, explained both Casas and we that Casas, evidence.” wrong, district was see 56; S.Ct. 1827. 425 F.3d at 64 n. Correy, 570 F.3d at Alleyne arguments, In addition to pretrial delay, already his Pi as to we have held that “statutory zarro claims that his and constitu Speedy there was no Trial Act or Sixth rights speedy sentencing tional to a trial and Casas, Amendment violation. See 425 F.3d at were denied as a result of the commencement 30-36. of trial 41 months after indictment and [his] delay sentencing years the further until resentencing 22. This next will be Pizarro’s government properly points after.” As the above, sentencing. explained fourth As Pizar- out, developed argument Pizarro has not initially ro was sentenced in 2002 life im- sentence; therefore, argu this one prisonment. appeal, After his first Pizarro Zannino, ment is waived. See United States v. years pris- was resentenced in 2006 to 30 1, 17 (1st Cir.1990) ("[I]ssues 895 F.2d ad appeal, on. After his second Pizarro was manner, perfunctory verted to in unaccom years prison. resentenced in 2012 to 23 1/3 panied by developed argumen some effort at tation, waived.”). Furthermore, are deemed global and summarize 378-79, [sic] ordered the district look twice and we assessments, I testimony, you globally if look at it credibility court to conduct record,” Correy, see of the preponderance on the whole understand “based calculating drug finding. individu- supports when F.3d evidence drug quantity. alized added.) Contrary to what the (Emphasis read- posits, the most natural government court to our the district pointed Pizarro particularly light credibility passage, as- of this arguing decisions when statement that required explicit for all witnesses the district court’s sessments were witnesses testimony relying “credibility the court was is not an issue” for on whose drug quantity Pérez-Delgado, deter- and is for its individualized other than Martínez Correy, explained: we court did not yet again mination. “the district instruction, persisted but rather heed our remand, appellants developed ar- On was con- in its view that the verdict attacking credibility guments at 379. trolling.” Correy, 570 F.3d Though reliability of other witnesses. prior opinion in the our discussion expressly court has the district “[W]here Pérez, equally focused on Martínez conducting it is not made clear applicable to all witnesses was the ratio- credibility inquiry, disingenu- it would be requiring independent nale for credibili- at 381. ous of us to act otherwise.” Id. ty sentencing assessments Therefore, sen- we must vacate Pizarro’s [Ajfter remand, judge.... our the dis- resentencing under tence and remand for credibility trict court should have made 841(b)(1)(A). § The district court’s credi- necessary determinations as to resolve bility must be based on the assessments dispute. the facts in for all on whose whole record witnesses added). Never- (emphasis to calculate testimony the court has relied theless, resentencing is the 2012 conspiracy drug quantity foreseeable subject appeal, of this the district court particular to Pizarro. understand the We “credibility again position took the credibility impose burden that assessments any not an issue” to be considered for on the district court under the circum- here; however, witnesses other than Thomas Martínez and stances that burden does Therefore, Pérez-Delgado. the dis- Israel fully that does not permit sentence testimony trict court relied on from other comport legal requirements. with all conducting any without credibili- witnesses B. Firearm Enhancement course,

ty improper assessments. This repeated, directly now contravened Cor- Pizarro also asserts that the dis rey’s explicit order. to consider by refusing trict court erred two-point fire arguments refuting his government

The claims that the follow- agree. Correy, arm enhancement. We ing statement from the district court dur- unambiguously we asserted: resentencing the 2012 indicates that it credibility perform required did deter- opportunity a real Pizarro should have minations: the con- challenge [that to this inference examination, would be fore- point spiracy’s weapons

You out to cross use of [sic] by arguing ques- impeachment, testimony, to some other seeable to Pizarro] a fact-finder foreseeability to part premise. but I have to that tion from arguments. his willing case as. to to consider There were convictions in this remand, Thus, ... will be able to may [h]e your client. Some others matters, attacking credi- arguments if make factual acquitted, you been other but bility foreseeability, and which the Pizarro with a PSR which specif- identifies drug quantities.” resolve. ic Correy, will consider and F.3d that, explained 400. We with “[a]rmed Nevertheless, Correy, 570 F.3d at 401. PSR, this Pizarro given genuine will be to the district court refused hear Pizarro’s opportunity argue to the testimony arguments concerning the firearm en- incredible, that it not support does hancement, incorrectly asserting numerous inference, incriminating that it was and/or times consideration of the enhance- respect foreseeable.” Id. With to the scope ment was “outside the of the remand enhancement, firearm we directed that the order.” identify transcript PSR trial portions that government attempts salvage to support any conclusion that possessed he district application court’s of the enhance- weapons weapon or that possession was ment referring to the court’s statement foreseeable to him. Id. at 401. We also “[a]gain I that I mentioned was not “ordered that the PSR include references' enhancement, going to disturb but to the trial record.” See id. at 384. anew, if I even were to make it counsel ordered, As we the Second Amended arguments, made the but I understand July -PSR filed on included testimony there has been particular this paragraphs through 102 a synopsis of example case for again gentleman and testimony with respect specific drug Counts, has not acquitted any been oth- quantities arguably were foreseeable er Contrary gov- defendants have.” firearm, to Pizarro. respect With to a that, argument, appears ernment’s paragraph specifically testimony cited with credibility its refusal to conduct the that Pizarro through received firearm drug determinations individualized Hence, August the mail in 1993. the Sec- quantity, the district court relied on the ond Amended our PSR satisfied order jury verdict conducting instead of the in- Correy. quiry we directed. While the court did

point testimony regarding the witness Drug Type “foreseeability of possession of firearms” Pizarro, the court erred not consider- argues Pizarro that because the ing Pizarro’s arguments regarding the en- conspiracy instructions on did not include hancement or performing credibility type quantity drugs, determinations that we said were neces- guilty only could have found him con sary. The court must consider Pizarro’s heroin, spiracy possibly pro to distribute arguments on remand. ducing a lower base offense under level disagree. the Guidelines. The su We Remaining C. Issues perseding charged indictment conspiracy ‘.‘approximately involved one 1. PSR grams thousand four hundred of heroin respect With to both the individualized approximately ... and nine thousand four drug quantity and the foreseeable use of (9,445) forty kilograms hundred five of co firearms, Pizarro claims that the most re- added.) (Emphasis caine.” “Because cent repeated PSR the deficiencies that we drug quantities types those were prior ordered corrected in our decisions. joined by conjunctive rather term ‘and’ disagree. We ‘or,’ disjunctive than am there was no Previously, we directed that biguity charged.” “the sen- about the crime Soto- should, remand, Further, tencing court on provide Beníquez, 356 F.3d at 48-49. determinations, based credibility instructed the numerous conduct court district record, on whole for all witnesses on the conspiracy involved charged times that calculating testimony it has relied whose cocaine, sum- including when “and” heroin (2) drug quantity; con an individualized charge, when conspiracy marizing the a fire arguments regarding Pizarro’s sider indictment, and when describ- reading the (3) consider, enhancement; and as arm conspiracy itself proof of the usual, arguments any sentencing additional that would be neces- the element of intent not waived and that we that Pizarro has sary verdict.' for already resolved and “such new have not newly or new facts as are made arguments Sentencing Arguments 3. Other by relevant decision—whether [our] a host of other sentenc- Pizarro makes by the result.” United States reasoning or that the sentenc- ing arguments, including (1st Ticchiarelli, 171 F.3d Cir. v. not familiar with the entire ing court “was omitted). 1999) (internal mark quotation ' record,” improperly considered 18 U.S.C. and tried in Pizarro was'arrested factors, granted § 3553 and should Hence, we consider this third and vari- departures certain downward custody appeal, he has been direct Pi- already vacating are ances. Since we a resolution of nearly two decades without ordering zarro’s sentence and resentenc- already Pizarro has been sen- his case. Pizarro’s alternate ing, we need not reach times, and we are now re- tenced three Correy, (citing at 401 claims. See 570 F.3d manding sentencing proceed- for a fourth Vidal-Reyes, United States court arrived at the last ing. The district (1st Cir.2009)). years of concurrent sentence of 23 1/3 years imprisonment supervised and five IV. calculating individualized release after conclusion, we hold that the district drug quantity applying a firearm en- court committed instructional er- hancement, weighing po- Pizarro’s without by failing charge on the rors to credibility arguments. tentially mitigating drug essential element of individualized pur- and remand are for the Our vacatur count and the quantity conspiracy for the fail- pose correcting the district court’s drug quantity for the essential element arguments, those and we ure to evaluate possession applying count before justification no for the court therefore see 841(b)(1)(A) statutory sentencing range § impose longer sentence remand mandatory minimum sen- included consid- appropriate than it deemed without Nevertheless, tence on each count. be- credibility. conclude that it is ering We cause conclude a reasonable we to direct just under these circumstances court, considering doubt that the errors did not contribute to after Pizar- the district obtained, impose a sentence no arguments, the results we find the errors ro’s of 23 longer than the concurrent sentence harmless. years and five years imprisonment 1/3 However, ignored since the district release. See 28 U.S.C. supervised credibility assess- our order to conduct § no view on whether 2106. We intimate calculating drug ments when individualized lower. the sentence should be Pizarro’s firearm quantity, and consider Pizarro’s convic- therefore affirm We arguments, vacate Pizar- enhancement we sentence, tions, and remand for vacate his resentencing. ro’s sentence and remand for opinion. resentencing consistent with Pizarro under resentencing When (1) 841(b)(1)(A), § the district court must So ordered.

LIPEZ, Judge, concurring. Circuit “where a reviewing court concludes be yond a reasonable doubt that the omitted analyzing complex In issues this element was supported uncontested and case, significant I became aware of the by overwhelming Neder, evidence.” inconsistency way in the courts have re- U.S. at 119 S.Ct. 1827 (emphasis add viewed for harmlessness the failure to in- ed). Hence, since we have concluded be struct on element of a crime. I write yond a reasonable doubt that the separately express my regard- concern threshold ing inconsistency, kilogram which within five quantities exists cocaine were both my courts, circuit and in other and the uncontested Pizarro supported by potentially applications unconstitutional evidence, overwhelming Neder mandates States, Neder v. United 119 our conclusion here that the errors under (1999), 144 L.Ed.2d 35 — States, Alleyne v. -, United U.S. have resulted from it. Given that (2013), 186 L.Ed.2d 314 right jury Sixth Amendment to a trial is at . were harmless stake, I urge Supreme clarify Court to Neder, however, did unequivocally unconstitutional, the line between an di- answer whether its two-part formulation guilty rected verdict and a harmless failure finding for an omitted element harmless to instruct on an element. Neder’s case—that the element was both supported by I. uncontested and overwhelm- merely evidence—was descriptive of A constitutional error is harmless where “ circumstances Neder itself or also the reviewing court ‘beyond concludes prescriptive any harmless- reasonable doubt the error com- where an ness element was omitted. plained of did not contribute to the verdict Neder, charge instructions for the obtained,’ i.e., “that verdict filing a false income tax return did not would have been the same absent the er- Neder, include the element of materiality. 15, 17, ror.” 527 U.S. at 119 S.Ct. 1827. The evidence (quoting Chapman v. California, 386 showed that Neder report failed to over 18, 24, 17 L.Ed.2d 705 (1967)).23 five million dollars income on his tax expressly states that a “jury verdict would have returns. Id. at been the same S.Ct. 1827. The element, absent” a failure to instruct on an Court described two available standards My colleague incorrectly states in his con- have been the same absent the error even rejected Chapman currence that I have where the defendant contested the omitted applicable harmless error standard as to this piy reading element. Under contrary, fully case. To the I embrace use of however, precedent, a court could view, Chapman My standard here. jury’s reach such a conclusion about the ver- below, Chapman elaborated is that stan- dict if it determined that the evidence on the unique application dard has a where the error overwhelming omitted element was and that asserted is the failure to obtain a verdict the element was uncontested. on an element of the crime. Importantly, contrary my and also col- misunderstanding The my view is re- league’s representations, my view does not hypothetical flected in the offered in Section entirely single quote derive “almost from responding VI of the concurrence. As I inter- Neder." It from is based on both a careful pret hypothetical hap- could not analysis long- of the Neder decision and on pen. proposed scenario assumes that a standing principles developed in the Court’s reviewing court could conclude a rea- precedent on directed verdicts. sonable doubt verdict would whether defendant’s contest of an omit- that materiality24 “[u]n- and concluded formulations, element, by supported ted even one over- no der of these either evidence, whelming renders the omission that Neder’s reasonably could conclude addition, In Neder un- of non-harmless. left substantial amounts report failure to question resolved of what a returns was ‘a mate- the related on his tax not income to do to required ex- defendant is “contest” rial matter.’” Id. Court then my the omitted element under Neder. plained: view, Neder, especially analyzed when report to such substantial The failure of the against backdrop Supreme incontrovertibly establishes income regarding directed guilty Court’s cases false statements were'material Neder’s verdicts, requires that an omitted element tax to of his income a determination be to be found harm- uncontested order liability. supporting The evidence mate- However, less. this circuit has uniform- fact, overwhelming, in riality was so ly approached question, and there is argue to did not —and among significant inconsistency the cir- argue false does not here —that his cuits state courts. of income found statements could be immaterial. A. The Debate over “Uncontested” 16-17,119 Id. 1827. S.Ct. Inconsistency 1. in this Circuit ultimately

The Court declared its hold above, quoted cases, the formulation using inqui- In certain our harmlessness situation, concluding ry where has examined both whether omitted “[i]n reviewing court concludes a rea element was uncontested and whether it supported overwhelming was by sonable doubt the omitted element evidence. See, supported e.g., by Harakaly, uncontested and over United States v. (1st Cir.2013) evidence, such that F.3d whelming (finding ver 95-96 omis- dict overwhelming would have been same absent the sion harmless whére evi- error, properly the erroneous instruction dence omitted element of supported is 17, 119 defendant, quantity to harmless.” Id. at threshold in- drug be found Notwithstanding 1827. the conjunctive contesting quantity, stead of that threshold linking “and” for a “sup “acknowledged responsibility quanti- “uncontested” and ported evidence,”25 by overwhelming ty drugs the triggering that far exceeds amount”); have taken inconsistent on v. Zhen positions courts United States Zhou formulation, analysis, important my my "a Under one false statement describe here is 24. tendency is material if it has a analysis natural view of in Neder is the harmless influence, capable influencing, or [is] opinion against based the entire construed decisionmaking body decision of the to which backdrop Supreme prece- Court’s it was addressed.’’ dent on directed verdicts. (alteration (internal original) Moreover, in contrast Court’s state omitted). quotation marks Under the other here, holding quoted ment of its as the later definition, "any report failure to income is my highlighted by colleague use of “and” is (internal quotation material.” omitted). Id. marks "example.” explicitly offered as an See Ned er, U.S. at Nonethe concurring colleague 25. My I asserts that less, acknowledged that I have Neder’s lan unduly conjunctive relied on the "and” guage my colleague's reading susceptible Supreme passage used th'e Court in this that, light despite my view ignoring arguably from Neder while incon- precedent, reading cannot be cor parallel use sistent word later in rect. opinion. conjunctive While the I formulation (1st Wu, Cir.2013) (“But the determinative question is whether the here, prose- the defendants did contest the evidence overwhelmingly establishes the claim[,] ... making cution’s thus this case amount of drugs distributed the con- Neder.”)-, whole.”); different from spiracy United States v. as a United States v. (1st Pérez-Ruiz, (1st Cir.2003) Nelson-Rodriguez, 319 F.3d 48-51 353 F.3d Cir.2003) (finding preserved Apprendi (citing er- Nelson-Rodriguez, 319 F.3d at 45- concluding rors harmless after that defen- Bailey, 270 F.3d at 89—cases that dants did not contest omitted element and had themselves considered whether overwhelming supported evidence ele- omitted element was uncontested —for the ment); Bailey, United States v. 270 F.3d principle that drug-trafficking “[i]n cases (1st Cir.2001) (“The error cannot involving Apprendi errors, be we sometimes where, here, harmless the defendant have presence treated the of ‘overwhelm- has ing contested the omitted element and the evidence’ of the requisite drug types support evidence is sufficient to a contrary quantities as a proxy for harmless- ness”). finding.”).

Our cases that Still other cases performed appear have this dual to have taken an however, stance, inquiry, ambivalent focusing have not made clear analysis primarily whether a defendant’s contest of an omit whether overwhelming evi- precludes supported element, ted element a dence finding of harm the omitted but lessness, considering or whether such a also whether contest is the element was See, merely relevant to uncontested. inqui e.g., the harmlessness United States v. Martinez-Medina, ry, but not In determinative of it. United 279 F.3d 121-22 (1st (1st Cir.2002) Prigmore, States v. (explaining 243 F.3d Cir. that “[n]either 2001), appellant seriously we indeed contemplated that a de denies that the conspir- acy fendant’s contest of an involved at least five kilograms omitted element of co- might preclude finding itself a caine” but also that “it harmless is settled that an (“Unlike Neder, Apprendi ness. See id. at error can be harmless where the government’s evidence overwhelmingly evidence ... was contested establishes the defendants; stated, minimum drug quantity-needed as we to justify have maximum”). higher statutory defendants introduced testimonial evidence contrary].... [to Given Neder’s re Inconsistency Among Other Cir- peated emphasis on the ‘uncontested’ na cuits materiality ture of the evidence of in that case, the contested nature of the ... evi inconsistency This circuit’s internal mir- might dence in this case well suffice to rors the inter-circuit conflict on the inter- distinguish it from Neder ánd of itself.” pretation of I Neder. cite cases from the (citation omitted)). However, we did not Ninth, Eleventh, Second, and Fourth Cir- need to question decide the because the examples. cuits as contested supported by element was not Circuit, Earlier year, the Ninth ap- overwhelming evidence. Id. standard, plying the Neder held that an

Conversely, other cases in this circuit Apprendi error was not harmless seem to equated solely harmlessness reasonable doubt because the defendant See, with overwhelming e.g., evidence. had contested the omitted element. See Guerrero-Jasso, United States v. Soto-Beníquez, 356 F.3d United States (1st Cir.2004) (“In (9th Cir.2014). determining Despite 1193-95 harmless, Apprendi whether an error is the evidence supporting the omit- teriality considered but not the may be ted be “somewhat element to similar” had found be “over- Id. at 1129. pivotal evidence the court concern.” case, prior in a the Ninth Cir- whelming” has taken different Second Circuit cuit contest held that Guerrero-Jasso’s Neder position, holding that under contest- finding of precluded the omitted element an omitted element does itself beyond a reasonable doubt. harmlessness non-harmless re- render the omission but Further, although stat- Id. at 1194. analysis. quires multi-step Sec- ed court could not harmless that a find “ Circuit, supporting ond ‘if the evidence example, where the defendant “’for controverted, the omitted element was element and raised contested the omitted requires analysis appel- harmless support contrary to a evidence sufficient two-part court a inquiry, late to conduct ” Ninth Circuit held that finding,’ the searching record in order to determine the required Guerrero-Jasso was not affirma- (a) whether there was sufficient evidence tively sup- to evidence sufficient to raise in permit jury to a to find favor of'the port contrary finding ex- “[t]he because element, and, defendant if on the omitted ample in Neder not the provided [was] (b) was, jury there the whether would only way a constitutional error can be the nonetheless have returned same ver- harmless; way.” ruled one [was] ” Needham, v. guilty.’ dict United States Guerrero-Jasso, at (quoting 752 F.3d 1195 (2d Cir.2010) 673, (quoting 604 F.3d 679 1827). Neder, 19, Jackson, United States v. 196 F.3d contrast, By the Eleventh Circuit on (2d Cir.1999)).26 interpreted Supreme the remand Neder has in turn expressly Fourth Circuit holding] as “not Court’s decision rejected approach Circuit’s the Second can harm- omission of an element never be yet favor another. the Fourth Cir less uncontested.” v. unless United States cuit, “if the defendant contested the omit (11th Cir.1999). 1122, 1129 197 F.3d element, ted in Neder mandates second Rather, the Eleventh Circuit the construed event, quiry. In that we must determine Supreme regarding Court’s statements whether the ‘record contains evidence that “meaning] only “uncontested” contrary rationally finding could lead to a fact materiality sup- was not contested respect with to that omitted element.’ ported] jury’s the conclusion ver- Brown, United v. 202 F.3d States dict would have been same absent (4th Cir.2000) Hence, at 1129 n. 6. U.S. error.” Id. 19, 119 1827). “whether Neder ma- concluded contested hand, Jackson, internally 26. Circuit has been in- ment. on the other to The Second seems Neder, express- in its own stance on allow decide on its consistent the court to own wheth- Jackson, ing, a belief that is "some after there jury er the have convicted the defen- dant, analysis tension between the harmless-error support can even where the evidence in Neder and our articulation it in Jack- finding in the defendant’s favor on an son equiva- omitted element and no functional lent omitted element has been found that, say appears ... Neder to once by jury. court decides that the defendant offered States, Monsanto v. United 350- support finding evidence sufficient ' Nevertheless, (2d Cir.2003). element, Second her favor on the omitted his or recognized by Circuit it is "bound has Jack- omitting that court's error in element from son, ... that case is unless and until reconsid- jury instruction deemed cannot be (or harmless, unless, by sitting equiv- example, ered our court in banc its other conclu- alent) by rejected or a later same are the functional sions equivalent ele- decision.” of a the omitted Id. at 351. 145, 149, in the Criticism State Courts 20 L.Ed.2d 491 (1968). The purpose” “intended of a supreme Several state courts have held trial in a judi criminal case is to “mak[e] provide their state constitutions cial or prosecutorial likely”: unfairness less guarantee broader trial than Neder “[providing an right accused with the recognized in the federal Constitution. be tried a jury peers of his gave him an See, State, e.g., Harrell v. 134 So.3d safeguard inestimable against the corrupt (Miss.2014) (holding 270-75 under the Mis prosecutor or overzealous against and sissippi always Constitution “that it is biased, compliant, or eccentric judge.” Id. every case reversible error for the 158, 156, 88 S.Ct. 1444. See also United Mississippi deny courts of an accused Co., States v. Supply Martin Linen right guilt to have a decide as to 564, 572, element”); each every 51 L.Ed.2d State Kou (1977) sounadis, (“[Jurors’] 159 N.H. overriding responsi 986 A.2d (2009) (“Neder, however, has widely bility been is to stand between the accused and criticized, and we decline to follow it with a' potentially arbitrary or abusive Govern regard to our interpretation of the New ment that inis command of the criminal Constitution.”). Hampshire sanction.”). It is a right defendant’s “prefer[ the] common-sense judgment of a addition, In at least one state court has jury to the more perhaps tutored but less suggested that application Neder’s of sympathetic reaction of the single judge.” analysis harmless error to cases where the Duncan, 156, 88 1444. jury did not a finding guilt beyond make jury system The also serves as “a funda a reasonable doubt on all elements will be mental power reservation of in our consti given Supreme “short-lived” Court’s tutional structure” for the people Sixth to exer jurisprudence, starting Amendment cise “control in Apprendi judiciary.” with v. Jersey, Blakely New 530 U.S. 466, 2348, Washington, 296, 306, 120 S.Ct. 147 L.Ed.2d 435 542 U.S. 124 S.Ct. (2000), (2004). emphasizing 2531, jury Hence, need find- 159 L.Ed.2d 403 “a State, ings. 600, See Freeze v. 827 N.E.2d judge prohibited trial from entering a (“We (Ind.Ct.App.2005) 605 believe the va- judgment of directing conviction or lidity short-lived, might be in jury verdict, to come forward with such a light of the seismic shift in the Supreme regardless of how overwhelmingly the evi Court’s jurisprudence Sixth Amendment may point dence in that direction.” Mar 1999.”). since Co., 572-73, tin Supply Linen 430 at U.S. (citations omitted). 97 S.Ct. 1349 My B. View of “Uncontested” Against background, Supreme 1. The Unconstitutional Directed Court considered in Connecticut v. John Guilty Verdict son, 73, 969, 460 U.S. 103 S.Ct. 74 L.Ed.2d (1983), The 823 whether Supreme long Court has harmless error review recognized that “trial jury appropriate jury criminal for a instruction cases is that fundamental unconstitutionally the American scheme shifted the burden of Louisiana, justice.” Duncan v. proof on intent.27 The Court divided Montana, 510, Sandstrom, however, In Sandstrom v. 442 U.S. expressly 2450. left 2450, (1979), open 61 L.Ed.2d question improp- the Su- of whether such an preme Court had presumption held that such an instruc- er instruction could ever be 526-27, process. tion violated due Id. at 99 S.Ct. harmless. Id. at 99 S.Ct. 2450. (internal quotation marks plurality, The 103 S.Ct. question.28 equally on the omitted). justices, asserted consisting of four intent was presumed the instruction Clark, 570,106 S.Ct. Rose v. of a directed equivalent “the functional (1986), 92 L.Ed.2d and, therefore, could not on intent verdict” ultimately position with the Court sided had con- harmless unless defendant be that harmless error the Johnson dissent 84, 87, 103 S.Ct. 969 intent. Id. ceded appropriate improper for an review was (plurality opinion).29 instruction on intent. presumption by explaining justified its conclusion Court dissent, consisting also The Johnson “[wjhen pre- is instructed to agreed plurality with the justices, four facts, it still predicate sume malice from to con- “permits an instruction of those facts be- must find the existence examining a defendant without ever vict Rose, 478 U.S. yond a reasonable doubt.” of the concerning an element the evidence Hence, 106 S.Ct. 3101. have “the effect of charged” crimes would “ ‘[bjeeause presumption reasoned 103 S.Ct. verdict.” Id. a directed of intent from does not remove the issue (internal J., (Powell, quota- dissenting) consideration, distinguish- it is jury’s omitted). likewise marks The dissent tion instructional errors that able from other an “instructional agreed error[ ] that such issue,’ considering from prevent considering an prevents] from that, Court, according a situation issue,” n. id. at 95 103 S.Ct. to “a verdict for would amount directed error review. See id. at preclude harmless at 580 & n. 106 S.Ct. the State.” Id. 969. Justice Powell’s dissent Johnson, 3,n. 460 U.S. at 95 plurality’s with the classifi- disagreed (Powell, J., dissenting)). presumption of the instruction as cation observed, Rose consistent with both the at equivalent of a directed verdict. Id. dissent, that harm- plurality and Johnson 95-97, 103 S.Ct. 969. The dissent viewed “presumably less error review would not presumption instruction as “distin- the. apply” in such a case: errors guishable from other instructional [Hjarmless-error analysis presumably prevent jury considering a from an that if a 3, apply It a court directed Id. at 95 n. 103 S.Ct. 969. would issue.” “[bjeeause prosecution for the a criminal concluded that verdict therefore that “a by jury. trial We have stated does not remove the issue presumption consideration, entering a jury’s judge prohibited it trial is from intent from the directing or reviewing judgment a court from of conviction preclude does not a jury to come forward with such verdict determining the error was harm- whether 97, overwhelmingly regardless at ... of how beyond a reasonable doubt.” Id. less plurality explained "a join plurality’s The defense Justice Stevens did not 29. alibi, could, judgment and opinion insanity, but concurred in the or self-defense” such disposi- case, thereby provided the fifth vote for a a depending on the amount to such wheth- tion. Justice Stevens did not confront Johnson, U.S. at concession. appropriate for er harmless error review was However, (plurality opinion). S.Ct. 969 presumption instruction because in his recognized defendant plurality also that "a question arises when a view federal ''[n]o course, justified, of in de- a criminal trial is decided for itself that it will state court has presumption fending solely on the in reliance Chapman apply the harmless errbr decline to burden of innocence and the State's of his Johnson, n. at all.” test proof.” n. 103 S.Ct. 969. Id. at 87 J., (Stevens, concurring). S.Ct. 969 may point the evidence in that di- sion of materiality element harmless rection.” This rule stems from the was tantamount to allowing a directed ver Sixth Amendment’s clear command to which, Rose, dict of guilty, under “would afford trials serious criminal per be se reversible no matter how over right altogether cases. Where that is whelming evidence.” unfavorable denied, the cannot State contend Neder, (Sea U.S. 119 S.Ct. 1827 deprivation was harmless because lia, J., Rose, dissenting) (citing evidence established defendant’s 578, 3101). majority Neder guilt; the error such case is that the responded by reaffirming the Rose rule wrong entity judged the defendant against allowing directed verdicts of guilty guilty. “regardless of how overwhelmingly the ev (citations Id. at 106 S.Ct. 3101 omit- Rose, may point direction,” idence in that ted) Co., (quoting Martin Linen Supply (internal 106 S.Ct. 3101 1349).30 572-73, U.S. at omitted). quotation Neder, marks See 2, 119 U.S. at 17 n. S.Ct. 1827.At the same 2. The “Narrow Class Cases” time, prescribed harmless-error re Where an Omitted Element view for “the narrow class of cases” where “Uncontested” charge there was “a failure to on an un Having by distinguishing decided Rose Neder, contested element of the offense.” the improper presumption instruction in (em 527 U.S. at 17 n. 119 S.Ct. 1827 that case from an “instructional error[] added). phases prevents considering from issue,” i.e., verdict, one that directs a Hence, evidently the Court used the re- analysis presum- which “harmless-error quirement the omitted element be ably not apply,” the Court was justify “uncontested” to departing from its presented in Neder with such directed repeated statements harmless error verdict. the trial court had review would be unavailable where “explicitly directed the not to consid- had directed a verdict of in a er” materiality. the element of criminal emphasized case. The Court “ Thus, 527 U.S. at 16 n. 119 S.Ct. 1827. taking penny, was not an ‘in for a in for Rose, unlike in it would be “incorrect to pound’ approach” i.e., by permitting — say that the made finding.” such a harmless error review where the omitted Id. uncontested, element was the Court was reason,, carving extremely exception out an limited

For this Justice Scalia’s dissent Neder, joined against by' reviewing Justices Souter and to its bar directed Ginsburg, holding asserted that the omis- verdicts for harmlessness. See id. Johnson, 84, Having presumption 30. (plu- held that the instruc- 460 U.S. at 103 S.Ct. 969 verdict, disagreed did tion not direct Rose rality opinion)). adopted The Court instead position improper pre- with the that an such the view Johnson dissent’s that "in cases of sumption instruction "could never be harm- instruction], improper presumption [an ‘the where less defendant contests intent.” inquiry is whether the evidence was so dis- Rose, 583, 106 S.Ct. 3101. The' positive reviewing of intent that a court can thereby rejected plurality’s Court the Johnson " say beyond a reasonable doubt that the presumption view that a instruction the ‘is unnecessary rely would have found it equivalent functional of a directed verdict’ on ” Rose, 583, presumption.’ at intent, only and is therefore harmless when Johnson, (quoting Rose, S.Ct. 3101 460 U.S. at 97 n. the defendant concedes intent.” (Powell, J., dissenting)). U.S. at 572 n. 106 S.Ct. 3101 103 S.Ct. 969 Thus, court con- reviewing where a harmless er- even addition, having justified In an doubt that beyond cludes a reasonable in- presumption for the flawed ror review by over- supported omitted element that by distinguishing in Rose struction evidence, I believe whelming element, an from the omission harmless of that element is not omission intention to treat its demonstrated Court the court also concludes unless differently. In of error types the two was the element reasonable doubt Neder, confronted the the Court where “uncontested.” element, ma- omission of outright ... the “uncontested and jority adopted Meaning of “Uncontested” 3. formulation overwhelming evidence” re addressing In the “uncontested” whether “the verdict analyzing Neder, Court quirement i.e., error,” been the same absent had made no noted that the defendant harmless. the error was whether appeal argue at trial or on attempt (emphasis at 119 S.Ct. 1827 527 U.S. materiality, id. issue added). Indeed, against allowing rule suggest did “not that he he verdicts, explicitly reaffirmed directed any bearing would introduce .evidence at 17 n. allowed,” if materiality the issue of so upon reviewing court from implicitly prohibits It further ob id. at 119 S.Ct. 1827. on the basis of over- finding harmlessness “apparently could not[ ] served Neder whelming evidence alone. bring contesting forth facts the omitted 19, 119 element.” Id. sum, land given precedential The Court thus remarked on the defen- I am convinced that the Court delib scape, materiality argue dant’s failure to issue to make the harmlessness erately chose proceedings. in the Given any point demanding where an element inquiry more circumstances, explic- Neder did not those Hence, I think the omitted. have been itly elaborate on what would the two- intentionally prescribed omitted element. sufficient to “contest” the inquiry requiring consideration pronged Indeed, definitively Neder did not answer uncon whether the omitted element was would be deemed whether an element the record contained tested and whether ap- until “contested” if a defendant waited element, evidence of that overwhelming argue for the first time that a peal prongs are met can a when both possi- contrary finding on the element was beyond a reason reviewing court conclude ble. able doubt that verdict would Moreover, above, plu- as discussed In the same absent the error.

have been position rality in Johnson had taken deed, impor emphasized the Court “may verdict on an issue be directed inquiry: tance of “uncontested” to if the defendant conceded the harmless the first of the two listed “uncontested” as Johnson, See 460 U.S. issue.” factors, necessary id. at 119 S.Ct. see On the one (plurality opinion). and re-examined examined hand, articulation of Neder’s the Court’s had contested the omitted whether Neder strategy possibly be construed trial could 15, 16-17, materiality, element of see id. at omitted a concession of the ele- as such However, the Court used the 2, 19, 119 ment.31 17 n. S.Ct. 1827. proceeds income because he loan were not 31. The Court represented that Neder “defend- loans, repay the and that he rea- against charges by arguing that the intended to ed the tax “uncontested,” “conceded,” fact, word in play at that time. Descamps v. Cf. — States, fact -, Court focused on the that Neder United U.S. argue 2276, 2289, “did not (2013) (“A does not 186 L.Ed.2d 438 —and argue defendant, here —that his false all, statements of after often has little incen- income could be found immaterial.” Ned tive to contest facts that are not elements er, (emphas 119 S.Ct. 1827 charged may offense—and added). Hence, es opinion good in this trial, reason not to. At extraneous case, we have construed “uncontested” to may (Indeed, facts jury. confuse the mean that argue defendant did not court may prohibit them for that rea- son.)”). a contrary finding on where, here, the omitted At least as the de- possible. element was We thus found the fendant had no reason to think that drug drug quantity omitted elements “uncon quantity mattered with respect to convic- tion, tested” due to Pizarro’s lack of affirmative I conclude that he could not be fault- argument on the issue. ed for failing to contest the issue at trial. Where a defendant’s trial pre- occurred

4. “Uncontested” in the Context of Alleyne, his obligation to contest the ele- Alleyne Instructional Errors ment drug quantity only can arise when he government’s first confronts the Given Pizarro’s lack of asser- argument ap- on tion of harmless error. peal, we were able to resolve this case considering without whether argument an I recognize that this conclusion means made for the first time on appeal “con- that, in involving cases gcce-Alleynetrials However, tests” an omitted element. I on .direct appeal, a defendant would almost believe that an instructional always be able to contest drug quantity that occurred before Alleyne was decided and a finding avoid of harmless error. On “uncontested,” cannot be deemed and thus appeal, resentencing or proceedings be- susceptible error, to a of harmless fore the district court—if that is where the solely based on a defendant’s failure to government first asserts harmless error— address the omitted element at trial. the defendant would have to make an argument could, theoretical mat- a. Until the Court held in Alleyne law, negate ter under the the omitted ele- triggering mandatory facts" mini- A challenge ment. credibility mum sentence must be found niight witnesses suffice. doubt, beyond a reasonable Pizarro had no obligation or incentive to discuss evidence I problematic Yet do not find the ease of drug quantity.32 Therefore, if Pizarro First, such a showing. “the Due Process had drug quantity contested the elements protects Clause against accused convic- I appeal, would have found no need to except upon proof beyond tion a reason- examine whether he had also challenged every necessary able doubt of fact to con- view, my the elements at trial. he stitute crime with which he is could not have been for failing charged.” Winship, faulted In re not, (1970). contest issue at trial that was 25 L.Ed.2d 368 believed, sonably. report based on the advice of his substantial amounts of income on his lawyer, accountant and that he need not re- tax returns was not 'a material matter.' Id. 16-17, port proceeds 119 S.Ct. 1827. as income.” Id. at words, 119 S.Ct. 1827. In other Neder's de- Indeed, fense conceded that he received the pre- consider- because the trial in this case charged, able amount of Apprendi, drug quantity funds and "no dated was not an reasonably could find that Neder’s failure to issue at for all. drug quantity for the ing to show on elements government on the burden is The possession conspiracy harmless and counts would error was that the constitutional guilt.33 Premo v. a negate finding See not of cases beyond a reasonable doubt. 115, 733, 744, Pizarro’s, Moore, merely change it would 562 U.S. such as Neder, (2011) (citing sentencing exposure, re- L.Ed.2d the defendant’s 1827). a This is a at 119 S.Ct. the maximum to ducing U.S. sentence still twenty burden: “It is critical significant years imprisonment of substantial of the criminal law not be moral force conviction on a lesser-included of- for proof a that leaves diluted standard of fense.34 men are in doubt whether innocent

people II. Winship, 397 being condemned.” In re (“It 1068; is see id. U.S. for Despite compelling reasons con- society in our free important also cluding that an omitted element cannot be going ordinary every individual ábout his harmless under unless the review- Neder govern- that his affairs have confidence a ing court concludes reasonable adjudge him of a crimi- ment cannot doubt that element was both uncon- convincing proper without a nal offense supported by overwhelming tested and ev- guilt factfinder of his with utmost certain- idence, inconsistency troubling there is ty.”). importance the courts. issue is At a criminal self-evident. stake is defen- Neder,

Second, Supreme Court right jury. dant’s constitutional to trial remarked that verdicts flawed upholding (1) urge I therefore to on solely by jury finding the absence of a clarify requires reviewing a supported an uncontested element that is “ conclude beyond to a reasonable by overwhelming ‘serve[s] evidence doubt that an omitted element is uncon- purpose very block[s] useful insofar as [it] tested before the can be omission found errors setting aside convictions for small (2) harmless and to what a explain defen- little, or any, defects that have if likelihood must dant must do when he or she do having changed trial.’ result of the to it in order contest the omitted element 527 U.S. 119 S.Ct. 1827 preclude finding to of harmlessness. Chapman, (alterations in original)). That con- TORRUELLA, Judge Circuit cern, majori- the extent it influenced the (Concurring). ty’s present decision in the I separately response instructional error context because write jury find- preceding non-harmless omission of a concurrence and inventive its here, judgment explicitly I make no either dice will inure to See the defendant." United judi- implicitly,- on or whether a concern for Sepúlveda-Hernández, States v. efficiency avoiding related cial retrial (1st Cir.2014) multi-step (providing 28-29 test justify a could different standard for contest- determining permissi it would be whether omitted element where a entry ble to direct conviction on lesser- necessarily non-harmlessness would result in offense). conspiracy included Cocaine a retrial. possession offenses under 21 U.S.C. 841(b)(1)(C), drug quanti § specified without § 34. Under 28 U.S.C. in the case of minima, mandatory are ties or lesser-included Alleyne Appren- non-harmless instructional or aggravated offenses crimes under error, generally may di circuit direct 841(b)(1)(A). States, Burrage § See v. United entry of- of conviction the lesser-included - -, 887 n. require fense that does not the omitted ele- (2014). L.Ed.2d ment, long "injustice preju- no so or unfair

313 States, urges Supreme clarify on Neder 527 to gloss v. United U.S. Court wheth- (1999), er his interpretation L.Ed.2d is correct. S.Ct. progeny. simply its applied and Neder view, my no such clarification is need- harmless-error standard constitutional rule ed, precedent as the governing is abun- nearly years ago in fifty Chap articulated dantly simply clear that applied Neder California, v. man standard Chapman harmless-error test. (1967), L.Ed.2d 705 to a in Neder, according plain to its text —and as an struction that element of an omitted reinforced by subsequent Supreme Court Neder, See U.S. at offense. 119 and First Circuit decisions—neither added (holding S.Ct. 1827 that “the harmless- (i.e., additional elements “uncontested” Chapman ap error rule of evidence”) “overwhelming to California the standard plies judge to the failure of trial to Chapman supplanted test nor it with a an element the offense submit to the new harmless-error test some subset of jury). Contrary position to the taken cases.

Judge Lipez, supplant Neder not did the While Judge Lipez’s view of Neder is novel, Chapman by creating rule two- strictly impossible, such an interpreta- for such I pronged sep errors. write test tion is exceedingly strained and finds scant arately lest the concurrence other add to itself, support in Neder not to mention the complains. the confusion of which numerous citing past cases Neder over the years. fifteen extent that To the there is posits The other concurrence there Neder, inconsistency in wake of his inconsistency” “troubling appli- by pre- concurrence adds to the confusion cation the constitutional harmless-error senting much question the issue as a closer Ante, in the test wake of Neder. at 312 than it is. a more straightforward, Under J., (Lipez, It argues that concurring). faithful, reading commonsense Ned- are possible interpretations there two cases, er subsequent very and our there is interpretation Neder. The first —with any inconsistency little —if prior our — agree, I is overwhelming- which and which application of the constitutional harmless- ly supported by Court and First Supreme error test for instructional errors. precedent simply Circuit —is Chapman express I here on applied standard harmless- no view whether Ned- decided, whether, appears ‘beyond error test: “whether it er was or rightly Judge Lipez Supreme reasonable doubt the error com- suggests, Court Rather, of did not decision. plained contribute verdict should reconsider its I accurately U.S. at write reflect attempt obtained.”’ Chapman, the current the constitutional state of 824). Circuit, potential second the First harmless-error test interpretation following is that Neder Court cre- relevant new, two-pronged precedent. ated a harmless-error For errors like constitutional (“the for a subset of constitu- those Neder and the instant case test instructional tional errors: “an omitted element cannot failure to instruct on element in viola- trial”), right harmless unless tion of the be under Neder the re- “the viewing beyond a inquiry court concludes reason- harmless-error essential- [remains] ly beyond a doubt that the element was both un- the same: Is it clear reason- able able supported overwhelming contested and doubt that a rational would have Ante, found absent Judge Lipez evidence.” the defendant the er- 312. reading, ror?” advocates for the latter and he

314 (“A sion, 19, entitles a criminal

1827; the at 119 1827 Constitution also id. S.Ct. see trial, perfect fair not a one.” defendant to a making this harmless-er- reviewing court Id. whether record ror ... asks the inquiry rationally could lead that contains evidence decided, was Shortly Arsdall after Van finding a with contrary respect

to 570, Clark, v. 106 S.Ct. in Rose 478 U.S. element.”). omitted (1986), 3101, the Supreme 92 L.Ed.2d 460 a cautioned that “harmless-error Court Supreme I. Court’s Constitutional The apply not if a analysis presumably would Test Harmless-Error prosecution the court a verdict for directed by jury,” reasoning the harmless-error rule un in a that According criminal trial “ entering Proce from prohibited der the Federal Rules of Criminal ‘a trial judge defect, error, dure, “[a]ny irregularity, judgment directing or a or the of conviction a variance that does not affect substantial forward with such verdict come disregarded.” Fed. rights regardless overwhelmingly must be ... of how the ” 52(a). Chapman may point R.Crim.P. v. evidence in that direction.’ Id. Califor nia, Supreme (quoting Court articulated at S.Ct. 3101 United Co., test Supply harmless-error for constitu v. standard States Martin Linen 564, 572-573, Chapman, tional U.S. at 97 S.Ct. errors. U.S. (1977)). a 824. To determine whether The Court explained L.Ed.2d 642 harmless, right constitutional error is a review that Amendment when the Sixth appears “beyond court asks whether trial in criminal cases alto- serious “is denied, doubt that the error com gether reasonable the State cannot contend plained of did not contribute to the verdict harmless deprivation was because obtained.” Id. the evidence established defendant’s guilt; the in such a case is that the later, in Nearly decades two Delaware wrong entity judged guilty.” the defendant Arsdall, Van 106 S.Ct. Id. (1986), the Supreme 89 L.Ed.2d 674 Court “emphasized, Chapman The Rose Court further reaffirmed harmless-error (“Since however, are some rule. that while there errors Id. apply, they not Chapman, repeatedly Chapman we have reaffirmed to which does not the rule.” exception that an valid con- are and Id. principle otherwise Therefore, had viction should not be set aside if the re- “if the defendant counsel adjudicator, confidently impartial was viewing may say, court on the tried record, strong presumption any there is that whole constitutional error beyond may other errors that have occurred are harmless reasonable doubt.”). subject analysis.” explained The to harmless-error Id. at “[t]he explained doctrine 3101. The Court recognizes harmless-error the central of a “thrust” of constitutional rules for principle purpose ques- criminal to ensure those criminal trial is to decide factual trials “is innocence, judgments.” lead guilt tion or trials to fair and correct of the defendant’s can respect reviewing crimi- Id. “Where a find promotes public for the trial process focusing underlying developed nal establishes record doubt, the inter- guilt the trial rather on the a reasonable fairness of than satisfied and the virtually presence of immaterial est fairness has been inevitable (internal omitted). judgment citation “As affirmed.” error.” Id. should be Id. “repeatedly it has we on more than one occa- Court reiterated that have stressed stated” that a criminal defendant is enti- and was not “prescriptive any “ trial, a perfect tled ‘to fair one.’ of harmlessness where an element was Arsdall, ante, Id. omitted.” See Van at 303. Nothing in 1431). (or any subsequent Supreme Court case) suggests that this two-pronged test date, To Court has not necessary is for finding of harmlessness Chapman changed overruled or the harm- rather than merely for such a sufficient less-error test for constitutional errors. finding. Similarly, nowhere does Neder Rather, the Supreme repeatedly Court has purport to establish a new constitutional reaffirmed the standard constitutional harmless-error test to displace the stan- Chap- harmless-error test as articulated in dard Chapman test in certain circum- See, Moore, e.g., man. Premo v. 562 U.S. stances. 115, 733, 744, 178 L.Ed.2d 649 (2011); Illinois, 148, The defendant in Rivera v. 556 U.S. Neder had been tried 155-56, 1446, for several 173 violations of L.Ed.2d 320 federal criminal (2009) fraud (affirming finding 4, statutes. harmless er- 119 ror when “it was clear S.Ct. 1827. It a reasonable was established that doubt that a district court jury rational would have erred refusing to submit materiality found [the absent element of defendant] the tax fraud error”) (internal quotation charges to jury. marks and cita- See id. The Su- omitted); preme tions Esparza, granted Mitchell v. certiorari 540 to answer 12, (1) 17-18, 7, questions: U.S. 124 two S.Ct. 157 whether materiality L.Ed.2d was (2003). an statutes, 263 element of the relevant fraud (2) “whether, and under what circum- Supreme II. The Opinion Court’s stances, the omission of an element from judge’s charge to jury can be 7, harmless error.” Id. at 119 S.Ct. 1827. - Ignoring the more recent The Court answered the question first above, Court cases cited plethora and the affirmative, holding materiality that of First Circuit holding otherwise, cases an element of charges. the relevant the other concurrence relies almost entire- 4, at Id. 119 S.Ct. 1827. ly single quote on a justify from Neder to its position that Neder created a new test respect question, With to the second supplant Chapman harmless-error Court held “that the harmless-error rule of test in certain circumstances. See Chapman v. applied indeed California 17, 527 (stating S.Ct. 1827 the district court’s error in omitting an “jury verdict would have been the same element of the offense from the element, absent” a failure to instruct on an 4, charges. Id. at 119 S.Ct. 1827. The “where a reviewing court proceeded concludes be- Court to examine in detail this yond a reasonable doubt type error, omitted of constitutional instructional element was supported uncontested and by where the trial court itself makes a evidence”). overwhelming Viewed out of on an element of the offense rather than context, possible it is quote submitting could element for a deter- support Judge Lipez’s preferred interpre- mination. doing, so the Neder court context, however, tation. In proper its explicitly argument considered the “ below, further explained perfectly ‘structural,’ such an error is and thus quote clear that this merely descrip- “was subject to automatic reversal.” Id. tive of the circumstances Neder itself’ (quoting 119 S.Ct. 1827 Johnson v. United

States, fun- necessarily not render criminal trial 520 U.S. S.Ct. (1997)); damentally see also unfair or unreliable vehicle 137 L.Ed.2d id. determining guilt that structural er or innocence.” Id. at (stating Similarly, the Neder “defy analysis rors ‘harmless error’ S.Ct. 1827. standards”) an element omitting Arizona Fulmi Court reasoned nante, 279, 309, of the from the instructions offense (1991)); “always id. will not render trial unfair.” Id. (observing L.Ed.2d trial intrinsically contrary, despite “are so To the the Neder that structural errors judge’s charge automatic reversal failure to require harmful as element, (i.e., materiality rights’) ‘affect substantial without re Neder’s trial was (quot “fundamentally to their on the unfair” he “was gard effect outcome” because 52(a))). impartial Fed.R.Crim.P. tried judge, before an under proof correct of the standard and with However, rejected the Court this struc- counsel; fairly select- assistance of a [and] argument, observing tural-error that ed, impartial jury was instructed to consid- only structural errors constitute “a limited in argument er all of the evidence and class of fundamental constitutional errors.” respect the tax against to Neder’s defense previously Id. The Court had “found an charges.” Id. ... ‘very error to be ‘structural’ in a ” cases,’ reasons, including: limited class of the For those the Neder Court counsel, complete denial a trial that the an biased “concluded omission of element subject in judge, racial discrimination the is an that is to harmless- selection error grand jury, self-repre- analysis.” of the the denial error Id. at 1827. S.Ct. trial, analysis, at public Conducting sentation the denial this in order to an- trial, and a in- defective reasonable-doubt swer whether the omission of the material- harmless, ity Id. at in was in (quoting struction. S.Ct. element Neder fact 1544). Johnson, 468, 117 explicitly Chapman, at S.Ct. the Court to U.S. turned It explained previously that those structural-error which it had “set forth the test contain that for determining cases defects the whether a constitutional “affect[] proceeds, trial (citing Chapman, framework within which the error is harmless.” Id. 824). than simply rather an error the trial at 87 S.Ct. “That test Fulminante, itself.” ... process appears ‘beyond Id. whether it a rea- 1246). at sonable the complained 499 U.S. To be doubt that error errors, such did to ob- deemed structural defects not contribute the verdict ” process, “infect trial tained.’ (quoting Chapman, must the entire Id. 824). necessarily fundamentally a trial the fail- Comparing render (internal quotation unfair.” Id. marks and ure instruct on an element of the of- omitted). errors, citations fense with other constitutional Neder concluded “that the harmless- Court jury error at Neder ] “The issue [in —a inquiry essentially must be the same: an instruction omits element of beyond Is it clear reasonable doubt markedly offense—differs from the [struc- a rational would have found the defen- ... tural] constitutional violations found guilty dant absent error?” Id. defy review.” harmless-error Id. 119 S.Ct. 1827. clarified such “[u]nlike Court defects test, complete reviewing or deprivation Applying counsel after record, judge, an found that evi- “[t]he trial before biased instruction the Court materiality dence so over- supporting that omits element of offense does fact, peatedly that Neder did not ar whelming, applied referenced and the stan- does not dard gue argue Chapman harmless-error test —and (whether beyond statements of it is here —that his false income clear reasonable doubt that a could be found immaterial.” Id. rational would have situation, found “In this where a the defendant if it S.Ct. 1827. had been reviewing beyond properly court concludes rea instructed on omitted ele- ment), sonable doubt that omitted element test to be satisfied under supported by particular was uncontested and over circumstances of the evidence, case. whelming such ver dict would have the same absent the been No language suggests in Neder error, properly instruction is erroneous Supreme Court intended create a new 17, 119

found to be Id. at harmless.” Instead, harmless-error test. Therefore, the Neder con that, merely particular indicates in a factu- they cluded that “think cavil al situation where an omitted element was ‘did not here that the error contribute to both supported by uncontested and over- (quoting Chap the verdict obtained.’ Id. whelming evidence, it was overdetermined man, 824). Indeed, the error was harmless. context, very language relied upon by The Neder Court further instructed that if, supports other “a concurrence this view: conducting thorough after examina- record,” a reviewing tion of the “court situation, In this reviewing where beyond cannot conclude a reasonable court concludes a reasonable doubt that the verdict would have doubt that the omitted element was un- been the the same absent error —for ex- supported by contested and overwhelm- ample, where the defendant contested the evidence, such that the verdict omitted element raised evidence and suffi- would have been the same absent the support contrary finding cient error, the prop- erroneous instruction is —it should not find the harmless.” error Id. at erly found to be harmless. We think it 19, 119 explained S.Ct. 1827. Court beyond cavil here that the error “did not reviewing court, that typical such a “in contribute to the obtained.” verdict fashion, appellate-court asks whether the Neder, 17, 119 S.Ct. 1827 record contains that could ration- evidence (quoting Chapman, U.S. at 87 386 S.Ct. contrary ally finding respect lead to a with 824) added). (emphases quoted This lan- to the omitted element.” Id. guage strongly suggests Neder’s dis- was, fact, cussion of in “uncontested” Nothing III. in Neder Itself Mandates merely descriptive happened of what in Approach the Other Concurrence’s prescriptive case and was not a man- As the date every subsequent involving is evident from discussion above for ease itself, Neder, reading an, and a the careful Neder omission of element. See (“In replace Neder 527 Court did not the standard U.S. at a case S.Ct. ”). Chapman new, harmless-error test with a such as this one.... The second sen- in two-pronged quote test —that the omitted ele- tence the block above demon- (1) ment must be both strates that the Court continued to “uncontested” and Neder (2) test, supported by “overwhelming Chapman evidence” refer back to the standard in overwhelmingly order for an court to find that test sat- appellate to be in factual particular instructional error to be harmless. In- isfied circum- stead, (i.e., explicitly supported stances the Neder Court and re- “uncontested evidence”) Neder, overwhelming (quoting in evidence.’ involved overwhelming 1827) (emphasis at 119 S.Ct.

Neder. U.S. concurrence)); Lipez’s supplied Judge fact, language makes own Neder’s (arguing id. 119 S.Ct. intend to establish clear that did not adopted ‘uncontested “majority Neder test for omission harmless-error new overwhelming instructions. from and ... evidence’ formula- of an element constitutional that for various analyzing Neder states whether ... error tion failure to “the instruct including Neder, was harmless” errors — right of the to a in violation on an element 1827) (emphasis supplied inquiry harmless-error jury trial” —“the concurrence)). Judge Relying on Lipez’s the same: Is it clear essentially must be quoted language from and em- that a doubt rational beyond a reasonable joins “and” phasizing the word the defendant jury would have found factors, Lipez two Judge concludes the error?” absent intentionally pre- “the in Neder Court Finally, 1827. Neder Court two-pronged requiring scribed inquiry its concluded harmless-error discussion consideration of whether the omitted ele- Chapman once to the test: referring more ment uncontested and whether reviewing making this “A harmless- record overwhelming contained evidence inquiry ... asks whether the record element, prongs both when rationally that could lead contains evidence harm- reviewing are met can a court” find contrary finding respect with (em- less error. Id. at omitted element.” Id. at phasis original). Judge Lipez thus Therefore, nothing sup- context, that, urges assign in this we must much ports, compels, less conclusion significant weight word “and.” intended to supplant view, with this the Neder Consistent Chapman the standard harmless-error conjunctive Court’s choice of the “and”—as exclusive, new, mandatory, a test with two- opposed disjunctive “or”—means (in pronged test which an omitted element in both conditions must be satisfied “sup- must be both “uncontested” and order the resulting to draw conclusion. evidence”) ported overwhelming in cases which the instructions erro- parallel this same to a Assigning weight neously of the omitted .an element offense. Neder, however, construction elsewhere directly Judge Lipez’s contradicts inter- Importance IV. the Word pretation. to describing In addition a cir- Language “and”: Neder Contra- an cumstance when omitted-element error the dicts Other Concurrence’s In- harmless, also specified Neder when terpretation such an error is not harmless: heavily The other concurrence relies course, safeguarding guaran- Of conjunction small word in Neder: one reviewing require tee will often that a joins “sup “and” that “uncontested” and thorough court conduct a examination of ported overwhelming evidence.” See If, exami- record. at the end of that (“Neder ante, expressly at 303 states nation, beyond cannot the court conclude ‘jury verdict would have been the same verdict reasonable doubt element, on an absent’ failure instruct have been the same absent reviewing ‘where a court concludes example, error —for where the defen- a reasonable doubt that omitted ele supported by ment was dant element and uncontested and contested omitted view, support my raised evidence sufficient to a 1827. In Neder-type errors— where an contrary finding should not find the omitted element is both uncon- —it supported by tested and overwhelming error harmless. evi- dence—are merely a subset of the uni- (em- U.S. at S.Ct. 1827 verse of In words, harmless errors. other added). phasis the other Applying concur- all Neder-type may errors be harmless logic yields rence’s quote to this the follow- errors, but not all harmless instructional ing for a reviewing conclusion: in order errors Neder-type must be errors. court to determine that error was not contrast, the other concurrence erro- harmless, the omitted element must be neously example takes one of a certain supported by both contested and not over- qualifying circumstance as a harmless er- whelming evidence. ror —when the omitted element was both (uncontested If “prongs” both Neder uncontested supported by and overwhelm- evidence) and overwhelming were neces- attempts evidence—and to substitute sary for of harmless error —as that specific circumstance for general argued by the other concurrence —then a view, test itself. Under this the new test failure of prong either would be sufficient supplants support the old. In posi- of this to find the error not harmless. If the tion, the other concurrence references result, Supreme Court such a intended we test, one formulation of the harmless-error might expect disjunc- it to have used the posits particular formulation conjunctive tive “or” instead of the “and” mandatory is both and exclusive. Com- emphasized quote block above. ante, (“In Neder, pare at 309 where the However, the Court only specified outright confronted the omission of that reviewing courts should not find er- element, majority adopted the ‘un- (1) rors harmless when the defendant con- overwhelming contested and ... evidence’ (2) tested the omitted element and raised analyzing formulation for whether ... evidence to support contrary finding. error was harmless.” Therefore, Id. principal support textual 1827) (emphasis sup- for the other concurrence’s reading of plied concurrence)), in Judge Lipez’s with undermined, very Neder is at the least and Neder, 119 S.Ct. 1827 related, perhaps negated, by closely paral- (“[Wjhere a reviewing concludes be- language lel elsewhere Neder itself. yond a reasonable doubt omitted supported by element was uncontested Two-Pronged V. Whether Neder evidence, overwhelming such that the Inquiry Necessary, Merely Is or Suf- verdict would have been the same absent ficient, Finding for a of Harmless- error, the erroneous instruction is ness harmless.”). properly found to be Yet this I simply read Neder describing is not even the sole formulation of the (when particular circumstance an omitted harmless-error test in Neder itself. See element is both “uneontested” and sup- Neder, (stat- at 119 S.Ct. 1827 evidence”) ported by “overwhelming that ing that for various constitutional errors— happens to be to meet sufficient the well- to including “the failure instruct on an established Chapman harmless-error right element in violation of to a beyond test —whether it is “clear a reason- inquiry trial” —“the harmless-error musf able doubt that a rational would essentially have be Is it clear the same: found guilty the defendant absent the er- that a rational reasonable doubt would ror[.]” 527 U.S. have found the defendant ab- was, fact, “merely in error?”); descriptive” also ed” see id. sent (“A making happened this in that case and was not reviewing what whether of a test for inquiry.... “prescriptive” harmless-error asks mandate new every subsequent evidence that could case. the record contains finding with rationally contrary to a lead Alleyne Are element.”). Errors Not Structural VI. to omitted

respect Errors Moreover, other concurrence’s in approach The other ef concurrence’s quoted language transformation of the test, subjects a fect subset of instructional-error Neder in two-pronged from into error, in satisfied, to structural contravention also cases prongs both must be which if of the Court’s mandate logic an even based commits error harmless-error review—and not structural solely upon quote The the Neder itself. applies Su from to such cases. The conditional statement Neder can be error — constitu preme B Court has stated most summarized: “If A and [uncontested] subject to evidence], tional errors are harmless-error [overwhelming [harmless then C review, in only and that rare cases will I that in condi- agree both error].” (A B) they requir be estab- deemed structural errors tions were to sufficient See, However, automatic nothing ing e.g., in reversal. Wash lish harmless error. Recuenco, 212, 222, ington v. 548 U.S. that both are Neder mandates conditions 2546, 165 (2006) (holding L.Ed.2d 466 necessary error. to establish harmless preserved Apprendi/Blakely error— concurrence, however, The other mis the failure an to the like to submit element this “if— reads statement from Neder as jury Neder —is not structural error and A and B [uncontested] if—-both subject instead to re is harmless-error evidence], [overwhelming then C [harmless Cotton, view); United States v. interpretation con error].” Such an 625, 631-32, 152 L.Ed.2d trary both other of the articulations (2002) plain-error to (applying review to presentation test Neder itself and error, unpreserved Apprendi an and refus subsequent Reading the test in cases. to accept to the defendants’ invitation context, I am convinced structural). treat the error as We did a new not create harmless-error “there previously appear held that test, simply but the tradi applied instead finding no basis for be test, reasoning particular tional in the one of rare cases to harm be those which case, presented circumstances both apply.” less-error review does United B happened A and be satisfied. (1st Harakaly, States recognizes very other concurrence Cir.2013). ante, (“Neder, possibility. See how ever, unequivocally erroneously sug- did not answer wheth The other concurrence er its formulation if two-part gests a defendant “contests” way, any omitted harmless in Neder’s case omitted element in then such an element Indeed, merely descriptive ... was of the circum error cannot harmless. the be # “recognizefs] prescriptive stances Neder itself or other concurrence also that, any involving finding of harmlessness where conclusion means cases omitted.”). element a de- pre-Alleyne appeal, As indicated trials on direct always appendix, herein and in the the over fendant almost be able to would drug the and avoid a whelming weight support quantity of authorities contest ante, It view that discussion “uncontest- of harmless error.” See at 311. Neder’s argues contrast, or in appeal, “[o]n resentenc- Judge Lipez’s suggested ap- the proceedings proach before district court— the reverse defendant’s con- wpuld government if is where the first case, as- viction in reasoning such a that there (a). harmless error —the defendant serts would is no question need to my consider In argument could, view, have to make an akin, such an if approach not func- law, aas theoretical under matter ne- tionally equivalent, to structural error: gate omitted element.” Id. reviewing court would reverse the convic- tion even if had the error no effect on the Such a conclusion would declaw the jury’s Controlling verdict. precedent does harmless-error doctrine this context and result, not permit such Supreme ás the transform an error into de facto Court has explicitly instructed that Al- error, despite structural the Supreme See, leyne errors are not structural. e.g., Court and First Circuit cases requiring the Recuenco, 2546; 548 U.S. at application of a harmless-error standard to Cotton, 631-32, 122 535 U.S. at S.Ct. 1781. See, Apprendi/Alleyne e.g., errors. Re Therefore, Supreme Court’s instruc- cuenco, 2546; U.S. at S.Ct. tion that harmless error —and not struc- Cotton, 631-32, 1781; U.S. at tural applies type to of instruc- error — 95-97; Pérez-Ruiz, Harakaly, 734 F.3d at tional error at issue here and in Neder also F.3d at Nor is 17-20. this concern against counsels other concurrence’s obviated the fact that some conviction interpretation. (on remains intact the lesser-included of fense). cases, In such a conviction is none VII. The Eleventh Circuit’s Ultimate greater offense,

theless vacated on the Resolution of Neder on Remand would which be otherwise valid but for “ little, ‘small errors or defects that have if Additionally, the decision the Elev- any, having changed likelihood of the re enth provides Circuit on remand Neder of the trial.’ sult See view, my further support for and it explic- 19, 119 (quoting Chapman, S.Ct. 1827 386 itly rejects two-pronged pro- the new test 824). The other con posed by Judge After the Lipez. Supreme preserv currence does not establish that Court remanded case to Neder’s the Elev- ing merely a lesser-included offense con reconsideration, enth Circuit for the Elev- completely viction satisfies this concern. convictions, enth Circuit Neder’s affirmed hypothetical Let us concluding consider a case in that the district court’s failure (a) reviewing court materiality which concludes instruct on the element was beyond reasonable doubt that the harmless error. States v. United (11th Cir.1999). verdict would have the same absent been On (had remand, been Neder-similarly Judge instructed on Lipez’s (b) element), but approach the omitted the defen- argued Supreme that.“the here — dant nonetheless had contested the Court held that omit- the failure instruct on way. my materiality ted element in Under some view can never be harmless error Neder and subsequent unless the Government shows both that First Neder never precedent, materiality Circuit resolution contested (a) if overwhelmingly ends the inquiry: reviewing supports evidence materiality every charged is convinced reasonable false- added). (emphases doubt that hood.” Id. at verdict error, resoundingly reject- the same absent the then The Eleventh been there Circuit (b). question argument: is no need to ed that consider an offense an element of of that omission did However, Supreme Court unless uncon harmless error never be can can an element omission hold that “The statement” —that uncon- Id. unless tested.” harmless error never be “ ‘the omitted harmless because Indeed, em- error is Supreme Court tested. supported uncontested focus of element was the correct phasized ”—“means overwhelming evidence’ “Is it clear analysis is: harmless-error materiality was not contested fact that a ra- that the doubt beyond a reasonable jury’s ver the conclusion supports the defen- have found tional the same absent have been Stated dict would absent the error?” dant Neder, (quoting Id. is whether “the error.” way, the focus another 1827). Therefore, Eleventh have been the same jury verdict would case on of the Neder the rec- resolution the error” or “whether Circuit’s absent the oth against militates strongly ration- that could remand ord contains evidence reading Supreme of the re- contrary finding with er concurrence’s ally lead to . Thus, in Neder [materiality].” opinion whether Court’s spect materiality may be contested Application of the Post-Neder VIII. pivotal con- but is not the considered Test Harmless-Error Instead, evidence what cern. materiality is the regarding showed Supreme A. Court Indeed, in the as outlined touchstone. Supreme sup- Court case post-Neder No relat- specific more discussion following, gloss concurrence’s the other ports issue, the Govern- to the counts at Rather, every subsequent Su- Neder. materiality each ment’s evidence citing Neder reinforces preme case bank, mail, and fraud of these wire Chapman primacy of the standard overwhelming. counts is See, Premo, 131 e.g., test. harmless-error added) (footnote inter- (emphases Id. (“[0]n following review at 744 direct S.Ct. omitted). Cir- The Eleventh nal citations constitutional error acknowledged harm- explained further that “[u]nder cuit trial,” “the burden of government h.as analysis,.... the Government less-error beyond it was ‘clear reason- showing that materiality evidence of must show rational would have that a able doubt rational overwhelming ... that no is so guilty absent the er- the defendant found ” properly instructed on the element jury, 18, 119 527 U.S. at (quoting ror.’ Neder on acquitted could have materiality, Mitchell, 17-18, 1827)); that count.” Id. (“A constitutional error footnote, fur- the Eleventh Circuit In a ‘it a rea- appears harmless when argument predi- Neder’s ther considered complained — that the error sonable doubt re- language the same Neder upon cated to the verdict ob- did not contribute Lipez here —that the upon by Judge lied tained.’ for a uncontested omitted element must be 1827)). n. 6. Id. at 1129

finding of harmlessness. B. First Circuit language reasoned that “[t]he The court opinion that Supreme Court’s from the interpretation Judge Lipez’s preferred argument on support his Neder cites reading faithful to a fair of Neder is not Id. is taken out of context.” point weight precedent. of our overwhelming Indeed, identify single First context, he fails “Considered explicitly endorses his case that not mean Circuit clearly does Court’s statement

323 contrast, By Neder. the tional fact-finder have understanding of would found Mar- of’ reaffirming disputed Circuit shall the element. post-Neder First cases Id. Chcupman the standard harmless-error applied We the same test in United Indeed, overwhelming in test are number. Newell, (1st Cir.2011), 1 States v. 658 F.3d they cataloguing are so numerous opinion joined by a unanimous Judge Li- time-consuming. proved prohibitively them Newell, pez. In we stated “the failure concurrence, I appendix the to this have jury to instruct the on omitted ele- [an provided eighteen examples of First such subject review,” is to error ment] harmless eases, including Circuit six 2014 cases from “requires ascertaining which “whether it See, alone. United v. Ra- e.g., States appears beyond a reasonable doubt that (1st F.3d 8 mírez-Negrón, 751 51 n. complained the error not of did contribute ” Cir.2014) than an error (stating to the verdict Id. at 17 obtained.’ n. 19 would be harmless a reasonable at if jury doubt “no reasonable could have 1827).. test, Applying that we held that responsi- found that the defendants were “even if the district court erred not drug respec- ble for below the quantities giving requested materiality the instruc- triggering mandatory tive thresholds the tion ... that error was harmless as the sentences”). minimum of materiality evidence was more than suf- support ficient to the convictions under “A court panel normally of this is bound this standard.” Id. to panel follow an earlier that is decision closely point, on unless an exists exception Citing Newell applied we principles stare United decisis.” reasoning like similar arrive hold- Rodríguez-Pacheco, States v. 475 F.3d ing McDonough, States v. United (1st Cir.2007). 434, 441 Judge Lipez’s (1st Cir.2013). F.3d 161-62 replaced Chapman view—that Neder McDonough panel, including unanimous harmless-error test with a two-pronged Judge Lipez, concluded that-assuming that test for harmlessness where the was the district refused instruct not on instructed an element required aon element—“the evidence binding crime—is not consistent with First was ‘more than sufficient to [nonetheless] au- precedent, including Circuit cases support (quot- the convictions.’ Id. at 162 joined by all on judges thored or three Newell, 19). n. F.3d On that instant panel. Some these cases are basis, panel was “confident included in appendix the end same obtained” if result concurrence. properly had been as to the instructed Therefore, allegedly omitted Id. element. June, past example, This we held held that was panel any error ultimate- error, that “instructional omis- including ly harmless. Id. at 161. element, sion if clear harmless it is beyond a reasonable doubt that a rational Other First Circuit further solidify cases guilt would have found Judge Lipez’s gloss absent the conclusion that Marshall, error.” States v. precedent. United 753 Neder is inconsistent with our (1st Cir.2014) See, Melvin, F.3d (emphasis e.g., add- United States ed). (1st Cir.2013) (constitutional Although the defendant in Marshall error technically proof “requires government of an reversal contested element unless offense, ‘beyond of the proves we nonetheless concluded a reasonable doubt that the ”); the verdict’ harmless because error did influence Godin, “[t]here is no reasonable doubt that a ra- States v. F.3d United (“When (1st Cir.2008) Judge Lipez’s examining whether do little to demonstrate that jury in a in interpretation of element is correct. the omission an error, we ask wheth is harmless struction 1. First Circuit contains evidence that could

er the record contrary rationally finding lead to a with by Judge The Circuit cases cited First (internal the respect to omitted element.” Lipez application as “inconsistent” in their omitted)); marks citation quotation and easily my of are with reconciled Morgan, v. States F.3d United (“uncontested” view. Neder’s two factors Cir.2004) (1st be (Apprendi errors “should by overwhelming evi- “supported so the for' long harmless as evidence held dence”) merely as are best understood two judge’s findings the trial is over factual why the Neder reasons Court concluded whelming no reasonable could and. by that verdict unaffected the was the them”); disagreed with United States materiality of the element. It omission (1st Soto-Beníquez, 356 F.3d Cir. thus that we perfect makes sense some- 2003) (“An Apprendi is error harmless particular times emphasize whether overwhelmingly the evidence estab where (and omitted element contested to drug quantity minimum lishes the needed emphasize degree), what sometimes the justify statutory the maximum under strength regarding the of evidence sentenced.”). the defendants were which element, both, sometimes discuss omitted preceding any of the cases—nor oth None and sometimes examine other factors and Circuit I have found—state er First cases words, In reasons. other the contested-or- reviewing can never that find element, of uneontested nature of element to be harmless omission strength supporting of the evidence that simply because the defendant con error element, evidentiary both can serve func- in way. tested the omitted element some they tions: both can affect the ultimate Therefore, the other inter concurrence’s determination whether it was “clear be- two-pronged inquiry of pretation Neder’s yond a that a rational reasonable doubt support existing prece finds little in the have found the defendant by we dent which are bound. absent the error.” Applying this view to S.Ct. 1827. Support for the C. Lack Other cases cited other con- First Circuit Concurrence’s Position currence, inconsistency any apparent melts Neder was decided in June 1999. In the event, away. any In indicated intervening years, fifteen Neder has been in non-exhaustive selection of cases 3,600 telling It is cited over cases. appendix, overwhelming weight identify the other concurrence fails support First cases the conclusion Circuit single explicitly case holds that its Chapman that the standard harmless-er- Judge reading Lipez of Neder correct. is of an applies ror test omission ele- pointed language has cases with ment from instructions. best, sug- with might, at be consistent his gested approach. None of those cases are Appeals 2. Courts of Other Circuit however, light compelling, particularly cites cases from other concurrence prece- Court and First Circuit Second, four courts of appeals circuit examples appen- and the listed dent —the Fourth, Ninth, Below, and Eleventh Circuits —as upon I dix. review the cases relied conflict. examples of an inter-circuit See support other concurrence to its by the ante, cases, however, Of those concluding view of these cases 305-07. might provide Ninth case the other explicitly Circuit concurrence ar support any sort other concur gues that Neder “requires that an omitted case, approach. Even howev rence’s element be uncontested order to be test, er, Chapman applied standard ante, found harmless.”' See was, reasoning that Apprendi “the contrast, in both the Second and the one,” course, a constitutional and that the Circuits, Fourth that the omitted court “must reverse we therefore unless element contested does not the in end a the beyond find reasonable doubt that Indeed, quiry. when an omitted element result would have been the same absent contested, is the Second Circuit goes the error.” United v. States Guerrero- (1) ask: whether per the evidence would (9th Cir.2014) Jasso, 1186, F.3d 1193 752 mit a favor the defendant on “ (internal marks, alterations, quotation and (2) element; that and ‘whether the omitted). Furthermore, citations Guerre would nonetheless have returned the same ” (and plea a not a guilty ro-Jasso involved guilty.’ verdict United States Need v. trial), the omit regarding and evidence (2d ham, Cir.2010) (quot 604 F.3d 679 introduced, ted element was for the first Jackson, United States v. time, the defendant’s conviction. Id. after (2d Cir.1999)). 386 The Fourth Circuit (“Where, here, as there no trial but inquiry: conducts similar omit when an guilty plea, and the evidence is introduced contested, reviewing ted element post-conviction by government only to court asks “whether the ‘record contains harmlessness, it demonstrate would funda that rationally evidence could lead to a Apprendi mentally protec undermine the contrary finding'with respect to that omit require tions to the defendant affirmative ” Brown, ted element.’ United States v. 202 ly present evidence to counter that facts (4th Cir.2000) (quoting F.3d Ned were properly never established accord er, 1827). 527 U.S. at The Apprendi place.”). with in the first On approaches of the and Cir Second Fourth basis, in that the instant case—which my interpre cuits are thus consistent with overwhelming presented volved evidence tation, and both back to refer the standard distinguishable at from easily trial —is Chapman harmless-error test —whether Guerrero-Jasso. jury’s verdict have would been by The Eleventh case Circuit cited same absent error. Lipez Judge was the Neder decision on remand, which, above, explic- as described Courts State itly rejected ap- the other concurrence’s In section titled “Criticism in the State proach. See 197 F.3d at 1129 Courts,” the other concurrence cites three (“[T]he Supreme did not Court hold (from Mississippi, state-court decisions of an can omission element never be harm- Indiana) im- Hampshire, that it New and Indeed, less error unless uncontested. way. plies undermine Neder some emphasized cor- Ante, Lipez Judge at 307. cites decisions analysis rect focus harmless-error is: ‘Is supreme (Mississippi two state courts it clear reasonable doubt that Hampshire) argue that “[sev- and New rational would found have the defen- ” (citation supreme eral have state courts held guilty dant absent the error?’ omitted)). Furthermore, provide a their state constitutions broader neither the Sec- recognized guarantee Neder ond nor trial than Circuit the Fourth Circuit cases federal Id. I do not support the other concurrence’s mandato- Constitution.” assertion, exclusive, ry, question but its own two-pronged test. Recall ‘beyond terms, ques- appears “whether a reasonable entirely it is irrelevant complained being issue doubt that the error of did under The tion consideration. ” to the verdict obtained.’ Ned interpretation involve contribute debated does not er, (quoting state 119 S.Ct. 1827 Hampshire New Mississippi 824); in- at Chapman, Indiana As for constitutions. (“[0]n Premo, court of decision see also 131 S.Ct. at appeals state termediate following acknowledged might be direct review suggested Neder State, trial,” “short-lived,” govern Freeze 827 constitutional error see that it showing I sim- ment has “the burden (Ind.Ct.App.2005), N.E.2d beyond a years passed nine since was ‘clear reasonable doubt ply note that have statement, fifteen a rational have found the defen the Indiana court’s since was decid- the error.’ years passed dant absent 1827)); yet prediction may be U.S. ed. Indiana moment, Mitchell, 17-18, but 124 S.Ct. 7 prescient, revealed (same). cur- prophesy bearing its has little on the controlling precedent.

rent state of the Appendix: Examples Supreme

X. Court, Circuit, First and Cir- Other IX. Conclusion Discussing cuit Court Cases the Contrary in the position to the taken Constitutional Test Harmless-Error concurrence, I have other not encountered For the reader’s reference and conven- “significant in First any inconsistency” ience, below a non-exhaustive list of harmless-error the applying Circuit cases thirty Supreme relevant cases—from the proper application Under a of the test. Court, Circuit, First and other circuit the governing First Circuit precedent, appeal discuss constitu- courts the by the cases identified other concurrence —that tional test the support harmless-error entirely rather as “inconsistent” are almost test articulated in Chapman: standard consistent interpretation with the correct progeny. of Neder the extent and its To Supreme A. Cases Court any of those cases are inconsistent Chapman Moore, 115, with the harmless-er- standard 1. Premo 562 131 v. U.S. test, (2011) mi- they represent very 733, ror small 744, 178 649 S.Ct. L.Ed.2d nority: (“[0]n the the weight of oyerwhelming following direct review an acknowl- controlling Cir- Supreme trial,” Court and First edged error the constitutional against cuit cases militate the other con- government showing “the burden of has interpretation currence’s creative of a few beyond it was ‘clear a reasonable isolated statements In the ab- Neder. doubt a rational would have of a Supreme ruling sence Court overrul- the the er- guilty found defendant absent ” Neder, any “inconsistency” such is' 18, 527 119 (quoting ror.’ U.S. 1827)). properly against interpreta- resolved S.Ct. proposed

tion in the other concurrence. Illinois, 148, 2. Rivera v. 155- U.S. (2009) Supreme As stated in Ned- 129 S.Ct. 173 L.Ed.2d 320 itself, Supreme by subsequent (affirming er and as reinforced Illinois Court’s cases, regarding First Court and Circuit harmless error determining peremptory challenge, test for improper “the whether a consti denial of beyond a reasonable tutional error is harmless” remains when “it was clear Chapman: standard test articulated in doubt that a rational may confidently say, found absent error” [Rivera] on whole juror’s “presence record, challenged the constitutional error was any prejudice doubt.”). did not Rivera because harmless a reasonable rational trier of fact would have found 7. Chapman California, v. 386 U.S. on the guilty murder evidence [Rivera] (1967) 824, 17 L.Ed.2d (internal quotation trial” marks adduced at (“requiring beneficiary aof constitu omitted)). and citations prove beyond tional error to a reasonable Recuenco, Washington 3. v. complained doubt of did not 212, 222, L.Ed.2d obtained”). contribute to the verdict (2006) (“Failure sentencing submit jury, factor like failure to submit B. First Circuit Cases jury, element to the is not structural er- Barnes, 1. United States ror.”). (1st Cir.2014) (“An n. 5 v. Esparza, 540 U.S. Mitchell error can be if harmless ‘no reasonable (“A (2003) 17-18,124 L.Ed.2d jury’ hearing the same evidence — constitutional error is harmless ‘it when sentencing judge hold heard —could appears beyond a reasonable doubt that responsible drug defendant for a amount complained the error did not contribute ... ‘below the threshold triggering [ ] ” (quoting the verdict obtained.’ mandatory minimum[ ].’ Ra 15, 119 1827)). mírez-Negrón, 8)); 751 F.3d at 51 n. id. at States, 1, 5. v. Neder United 527 U.S. (stating 99 that our “stiff for harm test” 18, (1999) 1827, 119 144 S.Ct. L.Ed.2d 35 government less error is whether the has (stating for that various constitutional er- beyond “prove[n] a reasonable doubt that including “the failure to instruct on the error did not rors— ‘contribute’ to the com of right element violation the to a plained-about (quoting sentence” Pérez- jury trial” —“the harmless-error inquiry 17)). Ruiz, 353 F.3d at essentially must be the same: Is it clear 2. United v. Santiago, States 769 F.3d beyond a reasonable doubt that a rational (1st Cir.2014) 1, (stating 11 that to deter- jury have would found the defendant whether a mine constitutional error is error?”); 15, absent the id. harmless, the government “the has burden (articulating 1827 the standard constitu- beyond a proving reasonable doubt that tional harmless-error test “whether the error did not affect the defendant’s appears ‘beyond a reasonable doubt rights” (quoting substantial United States complained the error of did not contribute 166, v. 466 171 Sepúlveda-Contreras, F.3d to Chap- the (quoting verdict obtained’ (1st Cir.2006))). man, 24, 824)); 386 87 id. Marshall, v. 3. United States 753 F.3d 19, (“A 119 1827 reviewing (1st Cir.2014) 341, (“[A]ny error 346 was making inquiry.... this harmless-error the harmless when assessed under stan- asks whether the record contains evidence error, including dard instructional rationally contrary could lead to a element, of an is harmless if it omission is respect ele- with to omitted beyond clear a doubt that a reasonable ment.”). have found absent guilt rational would Arsdall, 6. v. Delaware Van error.”). 673, 681, 1431, 89 L.Ed.2d 674 (1986) (“[A]n Roden, F.3d Connolly valid 4. v. 752 otherwise conviction Cir.2014) (“In (1st reviewing should set if the not be aside 509 328 Melvin, v. 730 F.3d 8. United v. articulat- States Chapman California (1st Cir.2013) (the stan- harmless-error harmless error 39 the constitutional ed that, appel- “requires

dard, provides on direct a error which test for constitutional review, affecting at trial government an error ‘be- proves late reversal unless the will be rights did defendant’s constitutional doubt that the error yond reasonable ”) to only if it can shown harmless be (quoting deemed influence the verdict’ Unit- (1st doubt.” beyond Sasso, harmless reasonable be v. 29 ed States Chapman, U.S. at 87 S.Ct. Cir.2012)). 824)). McDonough, United v. 9. States Ramírez-Negrón, v. 5. United States (unanimous (1st Cir.2013) F.3d (1st Cir.2014) (stating n. F.3d full) Judge Lipez joined in opinion, which be harmless than an error would (“[A]n not re- incorrect instruction does doubt if “no reason- beyond reasonable error harmless. reversal if the was quire found that the defen- jury could have able In the case an error ‘constitutional responsible drug quantities were dant's dimension,’ to required government triggering thresholds respective below beyond a reasonable doubt establish sentences”). minimum mandatory not influence the verdict.” did Lyons, F.3d (internal

6. United States omitted)); at 162 citation id. Cir.2014) (“Where (1st jury is (“[Assuming court re- district [the instructed on two theories properly required fused instruct on] later guilt, one which is determined element, the was more than suffi- evidence invalid, affirm conviction be we- can support cient convictions.... if we conclude a reasonable [Thus,] same we are confident that verdict doubt would have obtained if [the result (citations (citations instructed].”) the same absent the error.” been and inter- properly omitted)). omitted). marks quotation and internal quotation nal marks F.3d Harakaly, 7. United States v. Wu, v. Zhen Zhou United States (1st Cir.2013) (“In 88, drug-trafficking 95 1, (1st Cir.2013) (“In any F.3d 20 711 errors, involving Apprendi cases we some- event, given [conflicting evidence] presence times have treated the of over- matter, very ‘conclude[] we cannot drug whelming requisite evidence of beyond a doubt ... reasonable quantities harm- types proxy as for jury verdict have the same been added) (quoting Pér- (emphases lessness.” Neder, 527 (quoting the error.’” absent ez-Ruiz, 18)); (finding 353 F.3d at id. 1827)). 17, 119 U.S. harmless the defendant did error when Green, v. 698 F.3d 11. United States seriously he finding “not contest the (1st Cir.2012) 48, (finding a constitu- 53-54 responsible more thresh- was than” the harmless after cpnclud- tional error to be added); at 96 quantity) (emphasis old id. any ing “beyond a reasonable doubt (finding the to be drug-quantity evidence the ver- error here did not contribute to overwhelming delivery that “[t]he when dict”). alone, police was intercepted, taken amount,” Newell, v. 658 F.3d nearly triggering four 12. United States times (1st Cir.2011) (unanimous opin- 19 and when the defendant “acknowl- 17 n. himself full) joined in ion, Lipez edged responsibility quantity Judge for a which (“[T]he jury on drugs triggering [an failure to instruct the exceeded] far amount”). subject to- harmless omitted is element] doubt, review,” or, “requires put way, which ascertain- sonable another error that it appears beyond fairly beyond any it a reason- can be said ing “whether reasonable complained assigned that the error of did doubt that the error did not able doubt con- appellant contribute to the verdict obtained.’” tribute to the result of which the not Neder, complains.”); (citing 527 U.S. at id. at 19 (quoting cases (“[E]ven 1827)); if the district court harmless error due to “overwhelming id. . evi- giving requested drug type in not material- dence of quantity” erred when “testimony ... that error harmless there was ity describing quantities instruction materiality of drugs actually coconspira- as the evidence of was more seized from support tying than sufficient to the convictions tors” or “the evidence the defendant standard.”). charged conspiracy under this drugs involved that were indisputably excess of the Dancy, 13. United States F.3d amounts”). requisite (1st Cir.2011) (“Any is Prigmore, 18.United States v. if government harmless shows is (1st Cir.2001) 1, 21 (articulating F.3d ‘highly probable that the error did not ”) Neder harmless-error test as whether it is (quoting influence the verdict.’ United “ ‘clear reasonable doubt that a Flores-de-Jesús, States v. 569 F.3d (1st Cir.2009)). rational would have found’ defendants if properly even instructed” Godin, 14. United States v. 534 F.3d 1827)); id. (1st Cir.2008) (“When examining at 21 n. (noting Chapman test whether the omission of an element in a applies appellate review of constitutional error, jury instruction is harmless we ask errors) (citing Chapman, 386 the record contains evidence that whether (“We 824); believe, at 22 id. do not rationally contrary finding could lead to a however, that the evidence is so one-sided (in- respect with to the omitted element.” in- underlying as to render harmless the omitted)). quotation ternal marks structional error we have identified. Un- Morgan, 15. United States v. government, like the we do see this as (1st Cir.2004) (stating Apprendi case, like where it is far-fetched long errors “should be held harmless so that a properly conclude instructed judge’s the evidence for the trial factual might have returned different verdicts findings overwhelming and no reason- returned.”). than those disagreed able could with them”). from Other Circuits C. Cases Soto-Beníquez,

16. United States v. Ramos-Cruz, 1. v. United States 667 (1st Cir.2003) (“An 1, Appren (4th Cir.2012) (“[I]f 356 F.3d 46 F.3d 496 the de- di error is harmless where the evidence element, fendant contested the omitted we overwhelmingly minimum establishes the ask whether the record contains evidence drug quantity justify needed to the statu rationally contrary that could- lead to a tory maximum under which the defendants respect with to that omitted ele- sentenced.”). were ment.”) omitted). (internal quotation marks Pérez-Ruiz, Needham, v. 2. 604 F.3d United States 353 United States v. (1st (“[W]hen Cir.2003) (2d Cir.2010) (“In F.3d a non- States v. United (2d Jackson, structural error is of dimen- F.3d Cir. constitutional 386-87 sion[,].... 1999), government prove interpreted'the Supreme we Court’s must Neder, describing analysis that the error was harmless a rea- decision have found the defendant jury 'to deter- must undertake reviewing court ” (citation omitted)); id. an element the error?’ the omission of absent mine whether (“Thus, that ‘if doing, we held Neder contested material- harmless. In so whether was the omitted ele- supporting pivot- is not the ity may the evidence be considered but controverted, Instead, error was harmless ment al what the evidence concern. appellate court to analysis requires regarding materiality is the touch- showed searching the inquiry, (“Considered two-part conduct a stone.”); at 1129 n. 6 id. (a) to determine whether record order context, the Court’s statement Supreme permit evidence there was sufficient clearly not mean that omission of an does in favor of the defendant jury to find element of an offense can never be harm- (b) and, was, element, if there the omitted uncontested.”); unless id. less would nonetheless have whether the (“The statement” —that the error is harm- “ guilty.’” the same returned verdict ‘the omitted element was less because 386)). Jackson, 196 F.3d (quoting supported uncontested and overwhelm- ”—“means that the fact evidence’ Korey, v. 472 F.3d 3. United States materiality supports not contested (“While (3d Cir.2007) holding that 96-97 jury’s conclusion that verdict would as to the defendant’s instruction the error.” have been the same absent error, we observed of mind was state (citations omitted)). stand, despite may verdict still ‘[a] instructions, where the erroneous facts establish in-

predicate conclusively

tent, that no rational could find so committed the relevant defendant intend to cause the criminal act but did not ” Horn,

injury.’ Whitney v. (quoting Cir.2002)) (internal (3d quo-

F.3d omitted)). tation marks COMPANY, FILLER SHAMOKIN Brown, v. 202 F.3d 4. United States INC., Petitioner (4th Cir.2000) (“[I]f the defendant element, the omitted contested event, inquiry. mandates a second AND FEDERAL MINE SAFETY we must determine whether the ‘record COMMISSION; HEALTH REVIEW rationally contains evidence that could lead Safety Secretary Labor, Mine contrary finding respect with to that (MSHA), Re- Health Administration omitted element.’ spondents. 1827)). 19, 119 12-4457. No. 5. United States v. Appeals, United States Court (11th Cir.1999) (considering Third Circuit. Supreme Court’s Neder decision on re- mand, stating that “the 10, 2013. Argued: Dec. not hold that omission of an Court did July Filed: Opinion can never be error un- element harmless Indeed, less uncontested. emphasized that"the correct focus of analysis

harmless-error is: ‘Is clear be- that a rational

yond a reasonable doubt

Case Details

Case Name: United States v. Pizarro

Court Name: Court of Appeals for the First Circuit

Date Published: Nov 14, 2014

Citation: 772 F.3d 284

Docket Number: 12-1759

Court Abbreviation: 1st Cir.