United States v. Timothy W. Omer, United States of America v. Timothy W. Omer

ORDER jury would imagine that can’t self-contradictory and by the fooled been deny panel petition The has voted to by Heredia and her stories told confused rehearing petition for and the for record, I On this family members. various rehearing judge en banc. A of the court concluding any Jewell trouble have no requested a vote on whether to rehear the beyond a reasonable is harmless banc, request case en failed I would affirm. doubt. majority receive a of votes of the nonre- judges

cused active favor of en banc rehearing. panel rehearing for and the petition DE-

petition rehearing for en banc are NIED. America,

UNITED STATES GRABER, Judge, Circuit with whom Plaintiff-Appellee, BYBEE, KOZINSKI, O’SCANNLAIN, CALLAHAN, BEA, Judges, and Circuit join, dissenting the denial banc. rehearing en Timothy OMER, Defendant- W.

Appellant. respectfully I dissent from the court’s banc. decision not to take this case en We America, United States opportunity take this to reconsider should Plaintiff-Appellant, required prior precedent the rule that our three-judge panel apply: any in which the reversal of conviction Timothy OMER, Defendant- W. timely, correctly, objected

Appellee. missing that an element of the crime was from the indictment. See United Nos. 03-30544. Cir.1999) (hold- F.3d 1177 deficiency is not ing that such a Appeals, Court of review). An absolute rule harmless error Ninth Circuit. has no sense. When the defendant makes missing element actual notice Oct. evidence of advance introduced, element McLean, Esq., Kris A. USMI-Office element, and the find- instructed about MT, Missoula, Attorney, Michael the U.S. beyond a rea- of fact finds the element er Rotker, Justice, Criminal Dept, A. doubt, may not have sonable DC, Section, Div., Washington, Appellate omission; by the prejudiced been Plaintiff-Appellee. ought not compelled. not be We should Missoula, Sherwood, Esq., Michael J. judicial re- to a rule that drains cling MT, Defendant-Appellant. indeed, have when we can sources review— reviewed, very similar circumstances— of an THOMAS, by the omission HAWKINS, Before an indictment. McKEOWN, Judges. Circuit decision, establishing A. The Du Bo rule of automatic supported reversal was issue, States, “automatic reversal rule” at by 749, v. Russell United 369 U.S. premises. on three rested 1038, (1962), 82 S.Ct. 8 L.Ed.2d 240 States, 212, v. Stirone United 361 U.S. in Du “if proper- The court Bo (1960). 270, 4 L.Ed.2d 252 See ly challenged prior to an indictment’s Bo, 186 F.3d at (relying 1179-80 on those complete failure to recite an essential ele- cases).1 charged ment of the offense is ... a fatal requiring flaw dismissal of the indictment.” Second, we said that omissions from a at 1179. supported We that au- grand jury indictment, unlike omissions premises. tomatic reversal rule with three jury instructions, simply are not sus- jurisdictional. premise The first ceptible Bo, to harmless error review. Du We asserted that an indictment that omits 186 F.3d at 1179-80. element “does not allege Finally, expressed give a desire to against offense the United States” and defendants an bring timely incentive to thereby nothing petit jury “leaves for a objections. We limited the automatic re- 1180(internal ratify.” Id. at quotation versal rule timely challenges, reasoning omitted). marks in part We drew this idea review, that under harmless error filing a from a Fourth holding Circuit decision pretrial motion would be “self-defeating” inapplicable harmless error is very because the filing of the motion would

the omission of an essential element de- demonstrate that the defendant had notice prives jurisdiction: the court of “The ab- element. Id. at 1180 n. 3. sence of case, traditional sense does not cure a substan- Defendant Timothy W. tive, jurisdictional defect an indict- Omer raised a timely challenge to the Hooker, ment.” United v. States 841 F.2d omission of two elements from the indict (4th Cir.1988) (en banc) (empha- ment against him for bank fraud. We added); sis see also Du applied 186 F.3d at the rule of Du Bo and reversed Hooker). (citing appeared We also Defendant’s conviction because of one of jurisdictional to hold that the basis for our those omissions.2 At the time we decided interpreted alleged Other circuits also have Russell ment that Defendant and an accom and Stirone automatic reversal. plice "knowingly attempted executed or See, e.g., Spinner, United States 180 F.3d execute a scheme or artifice to defraud'' four (3d Hooker, Cir.1999); 516-17 841 F.2d by way financial check-kiting institutions aof at 1230. Some of those circuits are rethink scheme. The indictment described that See, position. e.g., the foundations of that “scheme or artifice” in some detail but did Higgs, United States v. 353 F.3d 304-07 allege that the scheme was material to— (4th Cir.2003) (relying on later i.e., "capable influencing” bank's de —the denied, precedents), 543 U.S. funds, required cision to release Neder v. (2004); 125 S.Ct. 160 L.Ed.2d 456 Unit 1, 16, 24-25, Prentiss, ed States v. 981-85 (1999). 144 L.Ed.2d 35 The indictment (10th (en Cir.2001) banc) curiam) (per (opin also failed to that the financial institu Baldock, J.) (rejecting applicability ion tions were insured. See United cases, Stirone, predated Chapman such as Ali, (9th Cir. California, 2001) (" federally-insured Proof of status of (1967)); 17 L.Ed.2d 705 see also 4 is, the affected institution for both section al., Wayne R. LaFave et Criminal Procedure jurisdictional 1344 and pre section 19.3(2d § Supp.2005). ed. &1999 requisite as well as an element of the substan " (quoting Defendant was tive Key, bank fraud in crime.' 1344(1). (11th Cir.1996) § violation of 18 curiam))). U.S.C. The indict- (per rone contain strong, general admonitions 395 F.3d 1087 Cir.2005) curiam), however, none of Fifth (per protecting about Amendment in Du Bo a grand jury prob articulated to have determine three rationales Russell, of the au- able cause. application continued supported (“To reversal rule. prosecutor, tomatic the or 82 1038 allow S.Ct. court, subsequent guess to a the make not precedent does Supreme Court B. grand the jury to was the minds of what jurisdictional rationale support the they at the the time returned indictment Du Bo. of deprive the defendant a basic would Bo, we issued Du Supreme the After protection which of inter guaranty the the Cotton, 535 decided United grand jury designed of a was to vention 152 L.Ed.2d 122 S.Ct. U.S. Bo, see also Du secure.”); 186 at (2002). eliminated directly the Cotton 860 that, (holding may 1179-80 when “[w]e the re- premise for jurisdictional grand jury” found only guess whether the Cotton, In the Court held that rule. versal probable missing cause to the ele support the ele- containing essential an indictment ment, ... im- “[rjefusing to reverse would is not jurisdictional a the ments of offense allow permissibly charge conviction a prosecution. to criminal a prerequisite (cit grand jury” never considered the (stating 1781 id. at See Stirone, 270)). at 80 S.Ct. a deprive in an do not “defects indictment Russell and Stirone were con both case”). adjudicate power to a court of preventing government the cerned with Stirone, theory a of the not pursuing from crime Russell The decisions of jury; the presented grand to the Court jurisdic- of support cited in which we Bo, of a sought prevent to that kind substan rationale in Du are distinguish- tional of the ind the tive “constructive amendment” Bo compel and do not able from rule. Russell and Sti- ictment.3 automatic reversal pretrial ings. The chief concern was that one denied Defendant's Court's The district court to received "of to the indictment for failure the defendants had not notice motion dismiss of against allege those two elements. nature of the accusation him.” the trial, The Court at S.Ct. 1038. also Id. a convicted Defendant. After the provide particulars even if a bill could "mate- did not mention The instructions notice, could ensure require find with not riality,” did the to ques- grand jury beyond a doubt that the affected the had determined the reasonable inquiry. insured. institutions were under Id. at S.Ct. tion indictment, the grand jury conviction protect reversed Defendant's To the to "materiality" element. the applied indictment omitted rule” the "settled the Court grand jury may amend curiam) Cir.2005) ("[T]he (per indict- and, accordingly, Id. reversed conviction. failure to recite an essential element 770-71, ment's 82 S.Ct. 1038. offense, materiality namely Stirone, was indicted defraud, is a fatal scheme or artifice unlawfully interfering com- with interstate indictment.”). requiring dismissal of flaw by obstructing of sand the movement merce Russell, state across lines. defendants convicted were however, At S.Ct. 270. willfully refusing § under U.S.C. permitted the defendant for inter- convict any pertinent ques- question "answer fering movement of sand or either with the congressional hear- inquiry” under tion Id. at the movement of steel. ing. & n. at 751 alternate 270. The Court held their convictions 1038. The Court reversed theory than mere variance identify was more did not factual because their indictments presented congressional the risk conviction proof; hear- pertinent precedents C. own Our undermine Du premise Russell Stirone as re- Bo’s that omissions

1781(describing grand jury susceptible are not flecting proposition of law” the “settled harmless error review. may not be that “an indictment amended grand except resubmission Bo, In Du we asserted that omissions however, cases, including jury”). Many are, general, from the not one, present do involve new or proper fodder for harmless error review. questionable theory, so it different assessing grand jury We reasoned that “ Court’s stated ratio- whether ‘guess error would the court to every apply nale must across the board to as to what was the minds of the ” See, e.g., kind element. jury.’ Du 1179(quoting Prentiss, v. 256 F.3d 984 n. 11 States Keith, 605 F.2d (en curiam) (10th Cir.2001) banc) (per (9th Cir.1979)). precedents own un Our J.) Baldoek, (distinguishing the (opinion dermine rationale. at issue in constructive amendment Sti- When defective indictments are chal- mere rone from the failure an lenged appeal, for time the first because, in element the latter essential cases not do mandate automatic reversal case, “sought charge the indictment De- but, rather, require plain us to for review sole for which the fendant crime doing, perform preju- error. so we him”). jury convicted analysis nearly analy- dice identical to the Additionally, Russell and Stirone were perform sis that refused to Du Bo. California, Chapman decided before v. Velasco-Medina, See United States v. 17 L.Ed.2d 705. 22 (9th Cir.2002) (holding F.3d that (1967), in which the Court established that “any defect the indictment was harm- can constitutional errors be harmless. less”); Leos-Maldonado, States importantly, Even more Russell and Sti 1064(9th Cir.2002) (“Leos 302 F.3d rone were decided before Neder United cannot meet the third condition[of standard].”). plain for Except error (1999), signif 144 L.Ed.2d that is case of proof, burden third element explanation for icant here both of plain analysis is identical (discussed below) “structural error” and its analysis: harmless Both us holding that omission of substantive an to determine whether the error “affect[ed] crime from element i.e., rights,” prejudiced substantial the de- be instructions can harmless. See also Jordan, fendant. United Allen, 943- 1095-96(9th Cir.2002). Com- (8th Cir.2005) (en banc) (reviewing for pare 631, 122 harmless error because Neder’s list of (setting prongs plain forth the four structural did not include (1) (2) errors Stirone error; review: is (3) and because Neder held that omissions plain; substantial “affect[s] harmless), (4) from instructions can be ”; rights and that “seriously affect[s] — petition filed, fairness, U.S.L.W.- integrity, public reputation or (U.S. 2005) (No. 05-6764). (alteration Sept. judicial As proceedings” origi- nal) added) (internal done, (emphasis our sister circuits have we can quotation dis- 52(a) tinguish omitted)), Russell and Stirone. marks with Fed.R.Crim.P. for an offense different from that which the Court reversed the conviction. Id. charged. Accordingly, 80 S.Ct. 270. defect, cases, error, untimely challenge or vari- we have ac- irregularity, (“Any rights possible knowledged substantial it is review that does ance affect added)). disregarded.” (emphasis the omission of must be indictment, fact we Leos-Maldona Velasco-Medina have conducted both harmless error and omissions do, from indict we held that plain error review. 14870 “sub did not affect a defendant’s ments rights” because the defendant had stantial Encouraging timely objections D. to in- element, because the notice justifica- dictments an insufficient evidence in the trial record weight retaining tion Du Bo’s automatic element, and because established reversal rule. be proved found element petit noted, applied As we have harmless er- a reasonable doubt. Velasco-Medi yond principles ror the omission of elements Leos-Maldonado, 847; na, from indictments eases make holdings Those 1064-65. object where the defendant did not before from to conclude that omissions impossible 52(a) accept trial. If we view exempt are Rule indictments harmful,” to review possible defective indictments for intrinsically “are so error, Neder, only remaining basis for Du Bo’s rule is our to necessarily rights.” give desire “affect substantial bring timely defendants an incentive structural to (describing also id. errors “ Bo, objections. at ‘defy analysis by that “harmless See Du F.3d 1180 n. as those ” (giving practical applying Arizona v. 3 a reason for a (quoting error” standards’ Fulminante, timely rule of automatic reversal to chal- (1991))). indictments). 1246, 113 lenges L.Ed.2d 302 plain wrong significant nothing reviewing Even than those There is with a more timely ap- argument is a in which we under a more error decisions case favorable one; untimely than principles harmless error to review standard of review an plied fact that in we do it all the time.4 the that a challenged an indictment dis- brings timely began. objection, court a stand trict after trial See Unit- James, alone, ing F.2d cannot to create an ed States v. be sufficient (9th Cir.1992) (concluding exemption general that from the rule that er “[t]he having in the indictment no effect rors no effect on the outcome of a could disregarded. proceeding the outcome of trial and was harm- must be See Fed. ” 52(a). beyond (empha- exempt R.Crim.P. Structural errors less a reasonable doubt 52(a) added)); Bo, protections Du 186 F.3d at 1180 from Rule are “basic sis cf. punishment ... criminal (stating n. 3 that its rule of automatic without which no is, fundamentally only timely-that pre- may regarded as fair.” applies be Neder, 8-9, 119 S.Ct. 1827 trial-challenges). (internal omitted).5 quotation marks demonstrate, simply As our cases is true, Bo, error, in Neither the nature of the nor its suggested not review, amenability at it is to harmless error is impossible by timing In affected of a defendant’s review omission for harmlessness. Indeed, proceeding “liberally even if we eliminated the rule court is to construe the of reversal, validity." indictment in favor of automatic we would to re- continue 1993). Chesney, Cir. challenged view omissions before trial more rigorously. Our established rule for chal- 5. Even when we have lenges stages that come later the district of subject to a rule automatic reversal without Therefore, body of a challenge. timeliness citizens that acts as a check on Du, justify challenge power. cannot No prosecutorial defendant’s doubt surely rule of automatic reversal. true. But that is no Bo’s less true jury, Amendment to a petit Sixth premises E. Not are the articulated which, jury, unlike must find in Du Bo’s re- support (citation beyond a guilt reasonable doubt.” insufficient, Supreme versal rule omitted)). precedent suggests opposite deciding distin- result. ground guished Neder on the where- Supreme Court held Neder as an can instructions be omission an element from in assessed reference to trial record structions is to harmless error re and the overall fairness of the assess- view. The element omitted Neder was error would “ materiality, exactly the same as one ‘guess court to as to what was ” in two elements omitted from Defendant’s and, grand jury’ minds of the in any Neder, present in the case. dictment event, could be remedied fair the Court ruled the omission trial. Du (quoting materiality element from instruc Keith, 464). As demonstrated tions was harmless reasonable above, that reasoning there is no —that the trial doubt because record contained evaluate, cure, way any prejudice or to no evidence that could have led a rational of an find the defendant’s false aby variety indictment —is undermined statements were immaterial. 527 Court, of cases from the 16-20, 119 court, and other circuits which courts actually do evaluate the presents The situation Neder a close defective indictments. The an parallel to omission of from element that, legal cases show as a matter of doc- an us with indictment and leaves an incon- trine, (and, indeed, it possible is common- gruity: Omission of an element from an place) to review the omission of an element subject reversal, indictment is to automatic grand jury’s from a indictment for harm- but omission of the same element from a less error. Yet, jury right instruction is not. to a grand finding probable as to Supreme precedent, cause Under Court most each element the offense is no more in grand jury proceedings errors are re- important, no more central to the funda- viewed for harmless error. Bank States, of a prosecution, mental fairness than the Nova Scotia 487 U.S. 250, jury’s finding 2369, to petit a that each 108 S.Ct. 101 L.Ed.2d 228 (“We (1988) beyond that, matter, a proved element was reasonable hold a general as may doubt. 122 a district court not dismiss an indict- Cf. (“Respondents emphasize S.Ct. 1781 that ment in grand jury proceedings for errors grand jury right the Fifth Amendment unless such errors prejudiced the defen- dants.”); Mechanik, a function in providing serves vital for a “structural,” deeming years as in United reversal. Three after we issued (9th Cir.1996) decision, Annigoni, Supreme Neder reiterated (en banc), that, two-option we did so approach because the error was Court’s and held errors, "simply not anal- ”[f]or amenable harmless-error all other review- [nonstructural] connection, ysis.” question apply” In this I also courts must a harmless error anal- holding Annigoni, ysis. (emphasis a that even nonstructural 527 U.S. at S.Ct. 1827 added). can error be to a rule of automatic (internal quotation 122 S.Ct. 1781 89 L.Ed.2d omitted). Mechanik, reaching (1986) (same).6 marks that conclu the Court sion, directly deciding “had the the Court avoided the error although of an affect the whether omission element potential theoretical preju an to indict indictment can be reviewed for whether jury’s determination Jordan, 291 F.3d at n. 7 for the of dice. See defendants particular these (noting “might sig they charged,” were Cotton have been with which fenses analysis a nificant” to our harmless petit later error conviction defendants’ Supreme rested decision the error harmless. 475 U.S. rendered 938; “the (stating rights” on the prong see id. “substantial 106 S.Ct. review”). subsequent guilty “plain verdict remains petit jury’s Cotton probable that there was the idea that means relevant rebut the defendants were always to believe that from an cause element indictment are charged, also guilty proceeding as a unfair. renders criminal Cf. 1827(decid Neder, reasonable guilty fact 119 S.Ct. 527 U.S. at doubt”). least, sug very At the Mechanik ing that omission of the na nothing there about gests error, is part, instructions not structural pre grand jury proceeding that ture of a v. United Johnson light In the harmless error review. cludes Mechanik, if had actual (1997), the Court had decided L.Ed.2d elements, proved, all were of all

notice satisfy did not the same error instructed, missing analysis); plain fourth element of the in the charge from a indictment element Robinson, harmless error. can be Cir.) (“We interpreted Cot application of harm ton also cases enumerate The Court’s less error review where that are not of “structural errors” class preserves defective and the defendant error review. See susceptible denied, objection.”), by proper Neder, 9, 119 (listing S.Ct. 1827 160 L.Ed.2d errors”). de Court’s such “structural (2004). extremely diffi in Cotton makes cision indict categorize omissions from cult to aban- increasingly are F. Other circuits the

ments as structural errors. doning precedents Du Bo-like favor such omission “did Court held one grand error revietv harmless of of fairness, integrity, or seriously affect the jury omissions. proceedings” reputation judicial of public 2001, have six of our sister circuits Since of the ele the evidence because they will defec- review essentially explicitly and “overwhelming ment was indictments, challenged various at 535 at 632- tive at trial. U.S. uncontroverted” 67 only proceedings 329 error in Mechanik, (1946)). has struc- Court the considered the that tural, L.Ed. 181 91 reversal, subject to automatic and thus Vasquez "prophy- interpreted the of as a rule race, pos- of account is discrimination on deterring grand jury discrimi- means of lactic sex, grand jurors. sibly See selection that such in the and stated nation future” Hillery, Vasquez v. 474 U.S. 106 little force outside "considerations have (race (1986) dis- 88 L.Ed.2d 598 S.Ct. crimination); compo- in the context racial discrimination Scotia, Bank Nova grand jury.” 475 at 70 n. of the sition (discussing at 108 S.Ct. 2369 S.Ct. 938. v. of sex in Ballard discrimination Allen, support for harmless error. See his stages, argument for automatic re- (reviewing at F.3d for harmless error element, versal. The first materiality, was challenged sentencing);7 an omission omitted from Defendant’s indictment for Robinson, 285 (reviewing 367 F.3d at for bank fraud as well as from in- challenged an harmless error omission on contrast, By only at trial. structions Higgs, 353 F.3d appeal); United element, indictment omitted second Cir.2003) (4th (reviewing 304-07 federally insured status the banks de- challenged an harmless error omission on frauded Defendant. The was Cotton), on Mechanik appeal, relying properly instructed about the second ele- denied, ment at trial and found a reason- (2004); 160 L.Ed.2d 456 United States able doubt the financial institutions at Co., Cor-Bon Custom Bullet 287 F.3d federally issue were insured. 580(6th Cir.2002) (reviewing for harmless challenged omission after the The panel’s decision addressed impaneled began); was before trial first Applying omission. Prentiss, 981(overruling 256 F.3d at panel held that “the indict- prece earlier 10th Circuit’s Du Bo-like ment’s failure to recite essential ele- on relying dents and Neder and Mechanik offense, ment namely provide harmless error for an review materiality of the scheme or artifice to challenged appeal); on omission defraud, a fatal requiring flaw dismissal Corporan-Cuevas, F.3d of the indictment.” 395 F.3d at (1st Cir.2001) (reviewing for harmless Although solely reversed challenged appeal); error an because of indictment’s failure to al- al., 4 Wayne see also R. LaFave et Crimi lege materiality, the failure indictment’s (2d 19.3(a) § nal Procedure ed. allege federally in- banks were count, (“[B]y a Supp.2005) conservative sured likewise would have been least five federal circuits abandoned the rule of automatic reversal because De- position the traditional mandating auto timely. challenge fendant’s was reversal, matic and substituted harmless James, review, 1318(stating appellate review timely challenge to an indictment’s failure failure of the allege essential element of the of Coleman, Cir. fense.”). Pickett, see 1981), bank (D.C.Cir.2004) (expressly insured was cured the indictment’s ref- declining to decide whether erence to the setting statute forth that available). review is element, and thus did not automat- reversal, only ic because the defendant’s cleanly presents an opportunity G. Omer challenge timely). was to reconsider the rule automatic reversal. elements, The omission of two one of case, which properly In this Defendant cited was instructed and one the omis- not, sion of two elements from his indictment in provides opportu- which was a unique Fulminante, 7. Allen was a death Chapman, penalty case. and Neder The indict- any changed ment was defective because landscape. Adopting essentially omitted statutory dissent, aggravating analysis factor. 406 F.3d at contained in this "presciently” objected 943. The defendant court held that defect the indictment Allen, Id. rejected the district court court. was to harmless error review. Stirone, pointing defendant's reliance on out 406 F.3d at 945-46. different, ter circuits that harmless error review is those two to decide whether nity in en appropriate, dif should result banc re- occurring situations commonly hearing. practice automatically avail Our respect with answers ferent reversing convictions when of a application ability or See, Jordan, timely objects that an element of the of- F.3d at e.g., analysis. the indictment is that, fense was omitted from 1096(holding drug quantity when was Neder, Cotton, Mechanik, of step nor out alleged in the indictment neither reviewing prejudice cases own a reasonable proved the omission of elements doubt, was not harmless be the omission doubt). view, I Accordingly, respectfully my indictments. yond a reasonable rule dissent. to abolish the ought en banc court the most trou in which of cases: convictions

bling subset of, had notice regarding, the ele

was instructed missing from the indictm of the crime

ment

ent.8

H. Conclusion fail indictment’s

I am confident banks the defrauded ure America, UNITED STATES of federally insured did not were Plaintiff-Appellee, that he dispute does not Defendant. He federally insured status actually knew that Moreover, an element of crime. was HOWARD, Lee Defendant- Jesse federally status for insured certificates Appellant. Defendant provided to each bank were (albeit late), of federal insurance evidence America, States of was in introduced Plaintiff-Appellee, that must find that the banks structed verdict, and, by its insured were beyond a reasonable jury did so find plainly Farias-Blanco, This of factors

doubt. combination Defendant- Jose Luis satisfy prejudice inquiry Appellant. would previously untimely challenge used have adopted. and that other circuits America,

cases Nonetheless, requires Du Bo reversal for Plaintiff-Appellee, defect alone.9 makes as little common A result Cedillos, Angel Defendant- Jose recurring issue has sense Appellant. in our growing consensus sis- prompted contrast, concern, words, By was not instructed My other is not re- view, my missing materiality element. analysis that the but the sult both the of the element from required use to reach it. was not and the instructions beyond a reasonable doubt.

Case Details

Case Name: United States v. Timothy W. Omer, United States of America v. Timothy W. Omer

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 31, 2005

Citation: 429 F.3d 835

Docket Number: 03-30513, 03-30544

Court Abbreviation: 9th Cir.