United States v. Turrietta

GORSUCH, Circuit Judges. O’BRIEN, Judge. Circuit

Introduction A federal convicted Gilbert Turriet- ta of assaulting a law enforcement officer. reached despite its verdict having never been problem sworn. The gone have unnoticed were it not for a objection belated from Turrietta’s attor- ney, Charles Knoblauch. He knew from the outset of the trial that had not sworn, yet strategically any reserved objection until a guilty verdict was re- turned and the dispersed.1 had A verdict delivered an un jury may sworn present an issue of consti dimension, tutional as Turrietta contends. But a compelling threshold prevents issue us from resolving that issue. By lying log, behind the Knoblauch pre failed to serve the issue he wants us to decide. Williams, David N. Quietly Assistant United objection harboring an until it can (Kenneth Attorney, Gonzales, States J. not be effectively addressed is the func Attorney, United States with him on the tional equivalent of making objection— no brief), Office of the least, United States Attor- very at the Aceording- forfeiture.2 credit, everlasting McGee, 1. To his Knoblauch has feiture. United knowledge admitted his strategy. (7th Cir.2010); see also United States v. Goode, "Waiver is different from forfeiture. But, spite Judge Kelly’s strong argu- Whereas forfeiture is the failure to make the ments, we are reluctant to take such a bold timely right, assertion of a waiver is the 'in- step, part because we are unsure whether relinquishment tentional or abandonment of a to a jury assuming, ” — Olano, right.’ known United States v. course, there is only such one —is 123 L.Ed.2d properly advised defendant can waive. (1993) (citation omitted). Perhaps marks Oakes, timely the failure to alert In United the court to the lack we outlined waiv- waiver, parameters: of a sworn could be treated er as as concurring opinion suggests. Generally rights only [S]ome can be waived if the speaking, remaining strategic personally silent for rea- Taylor defendant consents. See Illinois, 400, 417-18, sons is more consistent with waiver than for- struggle into A ensued him the shed. limited. Under

ly, quite our review during which Turrietta bit Gambone’s doctrine, we cannot correct plain error forearm. failing to do so unless forfeited error unjust clearly result. We a

would cement jury tried -to a on one Turrietta was court’s refusal the district will not disturb officer. assaulting of a federal See count nullity. a jury’s verdict to declare the 111(a)(1) (b). juries Two § & 18 U.S.C. (unrelated cases) picked from the were Background other. venire, one after the Prior to same to exe- A Marshals needed case, team of U.S. dire in the courtroom voir Turrietta’s arrest. cute for Turrietta’s a warrant to the clerk administered an oath venire. tip, they converged on his on a Acting to All the venire swore “truth- members of Albuquerque. south brother’s residence fully that shall be questions answer all they arriving, found their you your qualifica- Moments after touching asked of Turrietta, up backyard 8.) fugitive, holed in a jurors.” Br. at (Appellee’s tions as bookshelf, behind a jury tool Crouched seated jurors shed. Turrietta’s of signs budging, he no so officers back in report showed box and then told to two pepper spray. him out with flushing days.3 transcript picks up tried two When ineffective, later, Depu- and the spray proved days jury judge When the is seated attorneys reading ty introducing Vincent Gambone and is U.S. Marshall The preliminary transcript entered the shed to remove instructions. second officer resisted, contains was grab- him force. Turrietta no indication bing by the shirt and sworn.4 pulling Gambone 646, (1988).... 23(a). equate is not to 798 "A defen- R.Crim.P. This 98 L.Ed.2d right right by jury to authority ultimate deter- to trial with the trial dant ... has the to only suggest plead guilty, jury, jury, to whether to waive a but if mine is, behalf, fact, right, may waiver testify own take an latter its in his or her Nixon, subject to as the appeal.” Florida v. the same limitations former. States, See v. United L.Ed.2d Gonzalez (2004).... naturally "These four decisions ("[Sjome important they are so with the defendant because im- basic trial choices reside plicate attorney the client's most basic of our must seek consent the two tenets opportunity day right.”). The legal system in order to waive the record is to have —the opportunity silent as whether Turrietta consented to or in court and the to have Washington, v. was even about tactical method peers.” United States consulted Cir.1999) (internal employed. cita- F.3d omitted). event, any quotations government In failed tions and to raise Supreme any appeal Waiver

The Court has identified waiver in briefs. can be its Heckenliable, as the additional decisions exclusive waived. United States (10th Cir.2006). Although explicit- F.3d n. 3 the defendant. has not further, alone, go ly that it will no we need For that we need not venture stated reason precise bog. not determine the outer bound- into the .... aries postponed so Oakes, 3. Turrietta’s trial was the other United States F.3d proceed immediately case trial after could juries both were selected. Oakes, this is not case where it is Like necessary explore boundaries. Waiver of minutes, by jury subject procedural 4. The courtroom clerk’s contained trial limita- sheets, tions; that the venire was only participate must not docket reflect a defendant waiver, jury in the personally but sworn for dire and the other in the must do so in voir try was that case. No mention writing, government case sworn to with the consent having Fed. is made of Turrietta's sworn. approval and the court. See peri- ready adjourn The trial lasted seven hours over a court was when days. Deputy od of two Gambone recount- Knoblauch cut in: asked, ‘Tour honor?” he “I investigation leading ed the events have a couple of small matters I’d like Turrietta, up to his confrontation with the court to hear.” The court asked Knob- offending down to the bite. Several lauch whether he the jury wanted in or present during officers the arrest corrobo- out,” out. “The can be replied. he testimony. (Tr. testify- 366.) rated Gambone’s One Gambone; ing officer saw Turrietta bite released, Once the was Knoblauch another, obstructed, whose view said promptly moved to set aside the verdict. she men struggling witnessed the two be- out, As it turned “small matter” he hearing cry fore out in pain. Gambone wanted to discuss with the court wasn’t The photograph saw the bite small all. “My might at recollection be testimony wound and heard from the manner,” false or incorrect in some he practitioner nurse treated it. who said, “but I the jury don’t recall ever being compelling evidence,

Against this rather sworn in. juries, When we selected the presented only testimony the defense in, the other jury was sworn but I don’t Turrietta, of David the defendant’s brother recall particular jury this being sworn in.” residence and the owner of the where the (Tr. 366-67.) at judge per- The was not place. Although arrest took David was was,” suaded: “I think the he said. present during the arrest and could hear remember, either, “I don’t I always but do officers, struggling his brother with the he They it. they’re know under oath any- could not see the shed and did inside not (Tr. 367.) way.”5 at Knoblauch later say whether his brother bit Gambone. To filed an swearing affidavit that at point no testimony the extent his conflicted with was an oath jury. administered It officers, it that of the was over matters accompanied was by claiming a motion charges collateral to the assault color verdict was a For nullity. purposes —the shirt, instance, precise or David’s for his appeal, government this concedes the location the house when the officers try was not this sworn to case. testify. arrived. Gilbert Turrietta did not Discussion

After less than two hours of delibera- Turrietta, tion, represented by still Knob- guilty It returned verdict. lauch, now court’s request defense; contends the failure to polled was at the deprived administer the oath him of juror each confirmed the verdict an- his Sixth to trial juror. jury. nounced Amendment presiding The trial verdict, error judge accepted He maintains it thanked the was allow the service, jurors for the oversight their and extended an verdict stand once had brought judge’s invitation for them to tour his been chambers. to the attention.6 At 359.); (Tr. judge prosecution 5. The mentioned the oath three instructions." at times instructing jury: oath, reaching while "[I]n passing also made a reference to the facts, your your decision as to the admonishing that "that's not the oath duty explain to follow all the of law as I rules you you Apply ... took. The oath took was: 321.); (Tr. you.” your them to "It at is also (Tr. you judge just the law the read to ...” at duty your solely upon to base verdict 352.) evidence, prejudice sympathy. without or promise you That was the made and the oath problem may 6. The have been called to the 322.); "Remember, (Tr. you you took.” at pertinent judge, legal attention of the but no facts, judges you are the but are bound analysis presented. was ever by your oath the law to follow stated in these only error if the case does not candidly ing admit- Knoblauch argument oral could problem aware of the in his favor.” Id. he was conclude ted trial; he he claimed objected prior have Knoblauch’s considered meas exploit duty to his client owed the need for a ured silence demonstrates fortuitously Rath- presented. opportunity He contemporaneous-objection rule. did could have object er when the error than error, corrected, compounded see he it. he to wait and not invite but decided if such the outcome favorable. The law takes dim view of tactics.7 Puckett, 556 U.S. authority to courts have limited Federal Overlooking 1423. the forfeiture trial because forfeited at correct errors contrary contemporaneous-objection to the raised. Fed. timely they were only Accordingly, we review for rule. 52; Olano, see R.Crim.P. (“ plain error.8 principle ‘No procedural than that a familiar to this Court more Plain error involves review9 four sort, any right,’ constitutional Turrietta steps. must demonstrate the ... failure to by the ‘may be forfeited (1) (2) error, court district committed a timely right assertion of the before make (3) plain, plain error was and error jurisdiction having to determine tribunal If he rights. affected his substantial can States, ”) it.’ Yakus v. 321 (quoting United may 414, 444, showings, make these we exercise L.Ed. 834 64 S.Ct. U.S. (1944)). if it promotes This limitation to the error discretion correct raising objections, fairness, of so claimed er- timely “seriously integrity, affects the resolved district court rors can be judicial of public reputation proceedings.” of the trial. they before affect outcome v. Cordery, States, See Puckett United 556 U.S. 134, 129 S.Ct. satisfy plain Turrietta cannot prevents litigant It also from Even the failure assuming error test. to “‘sandbagging’ remaining si- court— objection belatedly rais- the oath constitutional

lent about his administer was er- 135-36, Puckett, 7. know was con- See at We do not whether Turrietta error. 556 U.S. 1423; States, strategy, about the but it is no defense sulted Johnson v. United U.S. 461, 466, say to it was done in the client’s interest. L.Ed.2d violating (1997) ("the procedural Seldom will rule work of the error claimed seriousness client; excep- no in favor of the this case is not remove of it from does consideration tion. ambit of the Federal Rules of Criminal Proce- dure.”). properly Whether error can be an nothing 8. is similar Plain characterized as has This case to Olano. error "structural” 52(b), analysis analytical approach plain is the correct do with error review under Rule here, operation everything as it was there. of error do with harmless re- ”[T]he Puckett, 52(b) permit 52(a). party not Rule does to with- Rule view under See U.S. ("Whether objection presence hold to the of alternate an an 129 S.Ct. 1423 error jurors during jury simply and then found deliberations can be harmless is different Olano, subjected automatic question demand reversal.” from it can be whether J., review.”). (Kennedy, differently, plain-error S.Ct. 1770 Stated if a structural, concurring). forfeited error it cannot be presume prejudice. because we harmless will application that does of of But not foreclose claim "structural” error has Turrietta's most, may impact bearing plain plain error At it application on the review. little 52(b) step analysis. permit excep- plain third error error test. Rule does C, part gravity based on the of the asserted discussion tions infra. ror, view, jury. the error was neither so clear that the In his when the Constitution “jury,” refers to judge refusing district can be faulted for refers to one so consti- law, tuted at common where the oath belatedly act when it was called to his accepted feature of a attention, duly impaneled grave nor so that failure to cor- jury. premise His unstated is that appeal integ- rect it on would threaten the Constitution preserved the common law judicial rity proceedings or result in a requirements of jury, with the institu- justice. miscarriage of need not de- We history tion’s setting the boundaries of its right by jury cide whether the to trial scope. constitutional He relies on the Su- necessarily encompasses to a sworn preme Court’s decision in Patton v. United jury, but we must discuss the issue be- States, directly step cause it bears on two of our (1930), L.Ed. 854 where it was held that plain analysis error and at tangential- least by jury] “[trial means a trial by jury as ly steps three and four. applied law, understood and at common all includes the essential elements as A. Whether the district court committed they recognized in this country and error England when the Constitution was by jury to trial in criminal adopted...:” cases is secured pro- two constitutional But Patton has been obsolete since III, visions. Article sec. 2 provides, “The year Supreme Court revisited its Crimes, Trial except of Im- Cases approach to the Sixth Amendment and peachment, by Jury shall be ...” U.S. changed Florida, course. See Williams v. Const, Ill, 2,§ art. cl. 3. The Sixth 78, 93-94, 90 S.Ct. guarantee, Amendment adds flesh to the L.Ed.2d 446 (holding a conviction by in providing, part, relevant “In all criminal jury a six-member did not violate the Sixth prosecutions, the enjoy accused shall the Amendment). “[T]he relevant constitu- trial, right speedy to a public by and an history,” tional the Court in explained impartial jury of the State and district Williams, “casts considerable doubt on the wherein the crime shall have been commit- easy assumption past our decisions that Const, ted ...” U.S. amend. VI. given if a feature existed in a jury at

Turrietta contends a is a common law then it was necessari- critical ingredient of the by ly preserved to trial in the Constitution.”10 Id. at 10. Central to the requirement, Court's conclusion was providing "by impar- the for trial an Amendment, history beginning of the Sixth tial of the State and district wherein the early with an version introduced in the House committed, crime shall have been which dis- Madison, Representatives by of James which previously trict shall have been ascertained provided "by impartial jury for trial of law.” Id. at 90 S.Ct. The 1893. Williams vicinage, requisite freeholders of the with the Court drew two salient inferences from the conviction, unanimity of for of the of First, history. amendment's the Sixth challenge, requisites and other accustomed assumption Amendment was drafted on the Williams, ...” 399 U.S. at 90 S.Ct. 1893 III, that the clause in Article sec. had (1789)). (citing Cong. 1 Annals of The incorporated the law common features of Senate, proposed amendment stalled in the explain perceived the jury. How else to the opposed vicinage where lawmakers the vicinage requirement, requi- need to add the (neighborhood) requirement "accept- and the by jury site of trial at common law? See id. at requisites” language. ed The amendment ul- 96-97, Second, 90 S.Ct. 1893. the deletion of timately adopted by the conference committee requisites” the language "accustomed had (and states) by Congress later and the several substantive effect. Id. theAs Court would "accepted requisites,” made no reference to explain, "Surely later one fact that is abso- compromise and vicinage reflected a over the function, in terms of this central between canvassing found- After 1893. sources, jury. the the Court abandoned a sworn and an unsworn Sworn ing-era to Patton and earlier judge precept, jurors uplifted foundational before a with stand decisions, that the Con- Sixth Amendment designed an oath to im- hands recite prevailing the under- stitution entrenched duty They on their conscience. press at law. by jury common trial standing of charge ren- promise carry out their —to 92-93, 1893. is “[TJhere Id. with in accordance the evi- der verdict ‘intent of indication the absolutely no impartially, conscientiously dence— explicit of an decision the Framers’ on court’s instructions on the based the and common-law equate constitutional the swearing an oath makes law. Whether 99, 90 jury.” the Id. at characteristics jurors ques- factfinders is a more reliable from the dictates of Freed S.Ct. 1893. answer, unequipped tion we but the are the Court revised practice, historical is A principle behind the exercise sound: contemporary role inquiry on to focus juror impressed with seriousness ascertaining aim of jury, charge likely his more to be attentive at is particular “the feature function and, turn, likely carry trial more out purposes relation performs and its to.the duty faithfully, respect his with due for 99-100, trial.” Id. process. the criminal underlying the ideals Martin, United States light, empha- in this Turrietta’s Viewed (6th Cir.1984) 1352, 1358 (“Swearing history of the oath sis the common-law ... emphasize impor- serves to can longer we assume misplaced. No juror’s tance seriousness of ,in implicit very con- once features ”). sense, task.... In this fair to cept jury have constitutional stature. the fair presume the oath furthers resolu- rather, question, is wheth- appropriate tion factual issues. purpose er oath is essential not, jury. purpose presumption That “is to served Warranted or government,” prevent by the oppression jurors long will the oath has been honor jury lying function of See, with the central the e.g., work the federal courts. Unit “in interposition between the accused the Marchant, 480, 482, 12 ed States v. judg- and his accuser of commonsense (1827) (“The 480, 700 law Wheat. 6 L.Ed. laymen, in the group ment of a of and juror sworn in presumes, every community and shared re- participation legal excep case is and above indifferent group’s from that sponsibility that results tion....”); Carter, States v. 973 United guilt or innocence.” Id. determination of Cir.1992) (“We (10th 1509, F.2d pre 1513 100, 90 S.Ct. 1893. jurors true to sume will remain their oath conscientiously the trial and follow court’s

Although we do not resolve the issue instructions.”).11 here, difference, in the readily perceive efficacy can Trust of we Padilla, that, history lutely is 11. See States v. F.3d clear from this after also United 639 892, denied, - U.S. -, (9th Cir.), 898 cert. proposal specify precisely made to had been 254, 132 181 147 S.Ct. L.Ed.2d requisites which of the common-law sworn, ("When is entrusted Constitution, preserved by to be law, obligation apply and we in rejected explicitly proposal the Framers juries presume turn follow instructions specification and left such to the fu- instead throughout given to the course them of 404, 410, Apodaca Oregon, 406 ture.” v. U.S. Beckman, trial.”); v. 222 United States F.3d 1628, (1972). 92 184 S.Ct. 32 L.Ed.2d 512, (8th Cir.2000) ("[Tjhis court 519 should jury, and does that a oath to assume

979 necessary in built on counteract system partiality experi is can beliefs or the oath independent powerful suggestive of a and the virtues ences otherwise of bias. See Bedonie, resiliency 782, lends criminal jury. It United v. 913 States F.2d allowing try (10th Cir.1990); a case proceeding, 796-97 v. United States being very (11th whiff 948, dismissed at the without F.2d Khoury, 901 955-56 Cir. influence, 1990). corrupting or hauled for juror of a aWhen is for challenged when deliberations last too questioning cause, can, question is whether he as long not United long, enough. do, See he “set any opinion swore to aside he (5th 219, 228 Delgado, v. 668 F.3d States might and decide hold the case Cir.2012) (upholding trial court’s denial of evidence, juror’s and should the protesta juror to contact on the ground motion impartiality tion of have been believed.” presumed faithfully are “jurors to have Yount, 467 Patton v. U.S. 104 duties.”); see their official also performed S.Ct. 81 L.Ed.2d A Boone, 328- United 458 F.3d is if death sentence im unconstitutional Cir.2006) (3d (stressing importance posed by ju from potential which secrecy addressing when deliberative excluded, rors were based their solely on misconduct); juror charges opposition penalty, to that unless affirma Eldred, v. presented tive is suggesting evidence their Cir.1978); Strauss, Mary Sequestration, prevent opposition carry them from (1996) (“[Jjurors L. need Am. J.Crim. ing duty. out their sworn v. Tex Adams secluded from all information be as, 38, 43, U.S. impartiality remain faithful to the order to (1980); Witherspoon see L.Ed.2d 581 also requirement.”). Illinois, gravity (1968); first im- jury duty Trujillo Sulli L.Ed.2d van, to voir upon jurors prior pressed 605-06 examination, swears dire when the venire we are no longer And while constrained questions truthfully. These af- to answer principles determining common-law provide certain firmations assurances by jury, the extent to trial impar- the case will tried parties: of the oath examination and its constitu- prejudice from tially, predisposi- free incomplete tional would be if it failed role tion; jurors will honor presumption understanding to account for historical innocence; jurors hold the will practice. integral The oath has to its government proof. burden of times, factfinding process the since ancient Beckman, 222 affir- F.3d at 519. Jurors’ no disputing and there is asser- Turrietta’s they also assure that mations the court accepted tion that it was an of a feature questions honestly will and abide answer properly jury constituted law. common by its instructions. Id. These assurances Cox, See 36 United poten- the need to examine reduce each (1837); 11 9 L.Ed. 671 Pet. Brewer juror tial determine his or her take on Jacobs, (C.C.Tenn.1884); 22 F. 242 burdens, rights, pre- the various Webster, A Compendious Dictionary Noah likely sumptions to arise at trial. Id. (defin- (1806) Language English 168 of the “persons ing “jury”

Trust in the oath continues dur as sworn to deliver selection, given of im ing jury pledge where a truth on such evidence as shall be law, did, fact, so.”); may radically the altered if there alteration follow do be Dougherty, to-operate.”). way it is told in the ("The (D.C.Cir.1972) operates way Burn, juror, them.”); precursor a to the modern Richard before Law Dictio- nary swearing proce- be before the (describing though it would centuries dure). rule body unlike the importantly, witnessing More a jury transformed from twelve, Kadoch, which has fixing a factfinding body. Laurie a C. as an “historical-acci- variously described on Lan- Help Me God: So Reflections ex- “wholly significance without dent” Thought, and Rules Evidence guage, Williams, U.S. at mystics,” cept to the Remembered, Rutgers Religion J.L. & omit- marks (quotation (2007). ted); requirement or body, legit- factfinding But even as verdict, origins a unanimous reach imacy hinged of the still on the relia- obscurity,” Apoda- “are shrouded which oath, reliability bility and the 1628; ca, n. at 407 oath, turn, juror’s rep- on the individual requirement always has born swearing community. in the The con- utation jury’s to the logical relationship clear most sisted of locals whose oaths were Belcher, as factfinder. See Jonathan role trusted, by whether of their credi- virtue Speech: The Constitution- Religion-Plus expertise, personal bility, their or their Un- ality Juror Oaths and Affirmations Id.; knowledge of the Jane E. facts.- Amendment, Mary 34 Wm. & der the First Findlater, (Fall 1992). Hung Jury: Retrial The 287, 292-93 L.Rev. After Problem, Jeopardy 129 U. Pa. Double the devel- predated oath Given (1981). L.Rev. 705-06 So even as jury system, the modern opment of proof, favor as oath lost a mode of imagine jury gaining legiti- difficult to integral jury’s truth-seek- remained body without a macy factfinding as “sym- function and its as a ing legitimacy requirement.12 1 McCor- swearing See Kadoch, knowledge.” of authoritative bol ed.). by § Evid. Trial mick On (“At place, at 12 supra the time and oath—an alternative to trial combat placed jury’s of the trust in the voice basis of trial trial ordeal—was an antecedent validity jurors had rational because iteration, its by jury. In most basic likely from those most to know selected acquittal by accused could obtain an invit- whose believed to and for those oaths were punish him in the event he ing God beyond reproach.”). It is a testament Alford, falsely. Ryan Patrick testified English placed the trust the in the oath Trim How Do You the Seamless Web: they commonly would exclude atheists Consequences Pedagogical Unintended serving juries they Alterations, from for fear 77 U. Cin. L.Rev. oaths, have no motivation to honor their In more proceedings, elaborate sys- carried over in the American compur- practice oath parties produced helpers, or tem, widely it was until the credibility to vouch for of their where used gators, Id.; Belcher, at Attorney-Client Century. Privi- end of the 19th positions. 292-93; Washington, § 1: 22 lege compurgator in the U.S. 2. The see also State v. "Throughout Along [Anglo-American] with the role in his- 12. oath’s time-honored verdict: factfinding process, decidedly there is the tory strong there ran tradition that once treating jury of oath as American tradition together jury not be dis- banded should point during trial when a defendant is charged completed had until it its solemn task put jeopardy. This is deemed to have in Bretz, announcing a Crist v. 437 verdict.” keeping principle, rooted in due 2156, 98 L.Ed.2d 24 S.Ct. 57 right process, that a defendant has the to have (1978). impaneled try reach a first to him — Nebraska, 841, (La.1897); Cir.2011), denied, U.S. -, Priest cert. So. (1880).13 10 Neb. 6 N.W. 469-70 (2012); S.Ct. 181 L.Ed.2d 740 Ruiz-Gea, 340 F.3d short, up In the oath is bound with some exception The one is great principles giving of the rise to the infringes error which upon a “well-estab of a trial. its very concept With principle.” lished constitutional See Unit appeal judgment enduring to divine and its ed v. Laureys, juror, impression on the conscience of the , —U.S. (D.C.Cir.2011), -, cert. seamlessly” the oath has “moved from me- denied decisionmaking dieval modes of into the Kadoeh, courtroom. supra modern respect While we Turrietta’s constitu- history, together 7. Its with certain com- claim, argument tional his sounds histo- assumptions way mon sense about the it ry rather than say law. We cannot practice,

works in a strong reveals rela- obvious, under the formulation set forth in jury’s tionship reliability as a fact Williams, that failure to administer the relationship strong finder. Whether the is First, oath was constitutional error. enough to afford the oath constitutional impression issue is one of first in the fed- question unanswered, stature is a we leave courts, eral and we are aware of no bind- assuming for even Turrietta could demon- ing authority, whether in the form of a violation, strate a constitutional he cannot provision, statute, constitutional rule, or satisfy the and fourth prongs second decision, judicial addressing whether the plain error test. right

Sixth Amendment by jury to trial B. plain Whether the error was necessarily requires be sworn. Moreover, the absence of a statute or rule enough,

It is not under Rule especially telling, only “error”; because there is there must be swearing requirements regularly is, appear “plain” error —that a “clear” or “obvi see, weighty contexts, less e.g., 5 U.S.C. readily ous” error that should have been (Executive § Department investiga- apparent district judge, such that tions); 1357(b) § (immigration U.S.C. object failure to deprive would not enforcement); 727(a)(4)(A) § 11 U.S.C. court of a reasonable opportunity to cor Olano, (discharge in bankruptcy); § it. rect 507 U.S. at U.S.C. (national directors), bank 1770. Since a district court cannot but also because faulted for would be farfetched to infer failing to act on its own motion from the unsettled, relating where the law is a matter of volumes statutes and rules procedure first criminal impression generally preclude generally will tri- finding plain specifically codifying error. See United States als principles —laws Fishman, as fundamental as the to a Religious objectors and nonbelievers even- oaths and affirmations indicates that the affir- tually persuaded legislatures put rectify many courts and mation was devised to practice. began complaints religious an end to objectors.” this Courts allow- Id. at 294. ing testify Congress incorporated atheists to as witnesses and serve the affirmation in the 1900s, 1940s, juries early in the prin- modern rules of evidence with the same granting ciples Today, most had states enacted statutes all in mind. witnesses must de- persons testify. they testify truthfully, by Jonathan Bel- clare that "will oath cher, Religion-Plus Speech: The Constitution- or affirmation in a administered form calcu- ality Juror Oaths and Under lated to awaken the witness’ conscience and of Affirmations Amendment, Mary impress duty the First 34 Wm. & L.Rev. the witness' mind with the to do (Fall 1992), history 293-94 "The of so.” Fed.R.Evid. 603. (2011); § see 23(a), ah, JURY 47 Am.Jur.2d cases, see Fed.R.Crim.P. criminal Pinero, v. F.2d also United allowing for as the rule marginal and as Cir.1991) (“[I]t (11th clear from is not verdicts, Fed.R.Crim.P. see 11-person juries in whether the federal the case law 23(b)(3) forgot Congress simply —that in.”). No system required are to be sworn jury. the sworn about history in of American federal court conclusion a different Turrietta draws constitutional jurisprudence has held the address- a federal law absence of from the necessarily by jury trial guarantee of keeping In requirement. swearing ing the jury. While courts include trial right to a sworn that position his with jury oath as stan routinely recognize the universally accepted as to be jury is so trials, only a hand in federal practice dard the re- he contends granted, for taken duly the failure to suggested ful have assumption out on was left quirement see, error, would amount to swear Its by the Constitution. preserved it was Dog, 398 F.3d v. Little e.g., United States words, absence, proof is of its in other (8th Cir.2005) (failure 1036-37 this can be Since assertion significance. state opening until after swear verified, the best disproven nor error); neither ments was harmless United States (6th Martin, it ends in a for it is that Cir. can be said v. 740 F.2d 1984) procedure open (disapproving to the where silence Congressional wash. jurors are sworn en masse prospective swearing requirement that the explanation panels); Cooper rather than individual by the incorporated thought was to be (8th Cir. Campbell, equally plausible But Constitution. 1979) error); (untimely oath was harmless meant to was never requirement that the F.2d Hopkins, United States theory law. the force of Tumetta’s have Cir.1972) (same), and even those if converse appeal have more its agree on the source of courts cannot is, pro- if true —that federal criminal were error, pointing some to the Sixth designed to be exclusive of cedures Amendment, 629; Cooper, 597 F.2d at oth law, so the exis- rules of constitutional Double ers to the Fifth Amendment’s of one meant absence tence Clause, at Jeopardy Dog, Little But there are numberless federal other. 1036-37; “dignity still others to the analogs, many of rules with constitutional fed which should attend effectiveness estab- magnitude orders of more them Martin, trials,” 740 F.2d at eral court See, here. than the one asserted lished (warrant Rule 6 requirement); Rule 4 e.g., necessarily that error not recognize We indictment); (knowing Rule (grand if “plain” law can be it contrary settled (venue voluntary plea); Rule 18 relates to “well-established” constitution- (trial 23(a) trial), by jury). Turrietta Rule 33; 653 F.3d at be- principle, Laureys, al believe, implausibly, that would have us Williams, strong case fore could guarantees em- all the constitutional above made, history swearing based on the procedure, in the rules of bodied criminal prevalence and its common requirement jury that to a sworn was law, preserved Amendment the Sixth repeating. too obvious to bear jury. But to a sworn Williams provide little Judicial decisions wisdom on the upended the conventional leading trea way clarity. At least one Amendment, transforming what was Sixth whether question tise has concluded the inquiry once a historical clear-cut —was up courts is trial required requisite the oath is federal feature Eclavea, a more textured et common one— in the air. Romualdo law?—into P. pur- rights.” the feature further the central fected his “substantial does This is By pose jury divorcing trial? simply way another saying the error trial history jury from its constitu- Olano, must have prejudicial. an scope, tional Williams introduced ele- 734, U.S. at 1770. Arguing S.Ct. analysis, into with uncertainty ment of error this case falls into a category of once the result features considered “structural” errors that inqui- eliminate an by jury of trial implicit concept in the have ry into prejudice, Turrietta would have us stripped since been of constitutional stat- bypass prong. the third The Supreme Patton, 288, Compare ure. 281 U.S. at 50 Court has reserved the question whether that trial (holding by jury S.Ct. 253 means structural necessarily error affects sub- jury consisting rendering of twelve and rights test, stantial plain under the error open ques- unanimous verdict “is not thereby obviating the need to consider the tion”), 412-13, Apodaca, 406 U.S. at effect on the outcome of the trial. United (The guar- Amendment S.Ct. Sixth — Marcus, U.S.-, States v. 130 S.Ct. trial, jury applied antee of a as to the (2010); 176 L.Ed.2d 1012 Unit- Amendment, states the Fourteenth Cotton, 625, 632-33, ed States v. require jury does not unanimous ver- 1781, 152 L.Ed.2d 860 14 Williams, dict); 100, 399 U.S. at 90 S.Ct. We, hand, on the other have assumed (Sixth require Amendment does not showing of structural necessarily error sat- persons). to be fixed at twelve isfies the substantial-rights prong. United fate, may ultimately The oath avoid this Wiles, (10th States v. 102 F.3d briefing but even with extensive and the Cir.1996) (abrogated grounds); on other luxury say of time for reflection we cannot Edeza, but see United States v. Gonzalez its constitutional status is either clear or (10th Cir.2004). 1251 n. 3 obvious. failure to swear in Whether minimum, “At a appeals court of cannot be should considered structural error is a 52(b) correct an pursuant error to Rule question. hand, more difficult On the one unless the error is clear under current consequences failing to swear in the Olano, law.” 507 U.S at ascertain, jury are difficult to and errors superficial clarity 1770. The defy strong measurement are candi claimed constitutional to a sworn dates for the “structural” label. See Wal scrutiny, fades under close as we have Georgia, ler v. n. correct, may demonstrated. Turrietta (1984); clearly clarity but not so. That lack of Curbelo, However, might well end this debate. rea- Cir.2003) (depriving defendant of twelve- sonable minds can differ. For that reason error). person jury was structural An un plain analysis. we continue our error would seem to fit the mold of a C. Whether the error Turrietta’s affected affecting “defect the framework within rights substantial proceeds, which the trial rather than sim ply itself,”

A trial plain process error is not redressable on error ap- peal unless the defendant can show it af- which the Supreme is how Court described holding Apodaca requires 14. The limited was the eluded the Sixth Amendment unani- trials, three-way among jus- result of division mous verdicts in state and federal four-justice plurality tices. A concluded the Justice Powell concluded the Sixth Amend- require requires unanimity Sixth Amendment does not unani- ment in federal but not Apodaca, mous verdicts in either federal or state state trials. 406 U.S. at 414- trials, separate four-justice plurality con- 92 S.Ct. 1628. Fulminante, plain can show error is and in Arizona an affects structural error 1246, rights, 113 substantial a court must exercise S.Ct. 499 U.S. deciding considered in judgment whether L.Ed.2d A the error must be corrected. court hand, not all unquantifiable On the other “seriously should do it so where affected structural; Supreme the Court errors are fairness, public reputation integrity, the or which not con- that errors do has stressed judicial proceedings.” Although of the Id. the verdict should not be re- tribute to (or showing prejudice a presumption) of is fundamentally is unless their effect versed necessary prong, to meet this not unfair, a being fundamental fairness with every prejudicial sufficient because not er- the question of whether defendant has ror and integrity threatens the fairness impartial adjudicator an provided Rausch, proceedings. help him attorney an defend the n. 2 Clark, charges. See Rose v. Rather, independent is an prong fourth inquiry, compared appropriately more (“Where reviewing a court can find that justice a standard miscarriage of under guilt beyond at trial establishes the record which a claimed error should not be cor- doubt, a in interest fairness reasonable rected, allowing unless it to stand would be judgment satisfied has been “particularly egregious.” United affirmed.”). Turrietta does not should be Garza, Cir. minimum dispute requirements that those 2009).15 met here. Turrietta from on this step starts behind resolution postpone ques- We can of this because he not even assert does his if were to tion. Even we credit Turrietta that, appeal brief been duly had error, arguments about structural we have sworn, the of trial would outcome have already determined error was not flowing been different. Harm from “plain” under current law such that we error often defies measurement and we objection. absence of may overlook the an recognize integrity system of the And, clear, it will become if as soon even suffer, may only theory, even if each satisfy the Turrietta could first three time a defendant is convicted un would not exercise steps, we discretion jury; enough but this his the error favor because did not “seri- stage simply identify an error that is fairness, ously integrity, pub- affect the or Supreme categorically serious. The Court judicial lic reputation proceedings,” rejected has “per approach” se as the fourth required prong under fourth if prong, stressing that the inquiry Edeza, plain test. error Gonzalez use, any applied is to be of it must be “on at 1251. F.3d basis,” case-specific and fact-intensive D. seriously “countervailing the error must account for Whether factors” affected fairness, integrity, may case. public repu- particular arise Puck ett, 142-43, judicial proceedings.

tation 1423. Surely prong plain The fourth er there are cases where the benefit discretionary. If heightened ror test is the defendant of the sworn will be judgment grave categorically While the Court has an error as to reserved on can be so four, which, satisfy automatically prong Court whether structural error can has third, stressed, satisfy substantial-rights, applied Olano’s “is meant to be case- Cotton, 632-33, Puckett, prong, specific see 535 U.S. at and fact-intensive basis.” rejected proposition it has 556 U.S. at 129 S.Ct. 1423. duty” try court of their “sworn the case indeterminacy the law or the complexity of in truly and accordance with the law. The if there were an But ever evidence. of the over the admonition was reinforced course could counte- system our where occasion by steady trial a drumbeat of in- of the jury, unsworn by an nance conviction stressing importance the of ren- structions eclipse factors” “countervailing the where dering light a verdict in of the burden of the flowing from unfairness any potential solely and based on the evidence proof error, The Turrietta trial is it.16 trial this instructions, the presented. Between single hours and involved lasted seven dire, repeated refer- oath at voir and the supporting The count of assault. evidence trial, jurors to the oath at had ences it uncomplicated as was charge was as importance plenty to remind them of rested without damning, and the defense If, owing overpower- their task. to some testimony only of the a dent in the putting nullification, or belief in ing prejudice does a eye witnesses. Seldom two unwilling to juror was still decide the sharply so with issues enter deliberations evidence, case on the law and it is based clearly stacked so defined and evidence have made a dif- doubtful oath would We are faced not against the defendant. ference. injustice of a man with “the intolerable anything imperil integrity If would accused,” v. Ha- see United States wrongly judicial it proceedings, would be (10th Cir.2008), san, 653, 666 but for rewarding holding decision Knoblauch that leaves no doubt rather record objection in pocket hoping his his back charged of- guilty was defendant in might ultimately work his client’s favor. fense.17 States, 520 See Johnson v. United of Tur- Quite from the evidence apart 461, 470, 117 S.Ct. any integrity threat to the guilt, rietta’s (“Reversal error, regardless for mitigated by an oth- proceedings was judgment, encourages liti- its effect on the rigorous trial. procedurally fair and erwise judicial process and gants to abuse the clearly fairly selected and The was it.”) (quotation to ridicule public bestirs the instructed, open to the and the trial was omitted). thing to over- marks It is one by an and administered unbiased public error; entirely something else look an himself of his judge. Turrietta availed it. If Knoblauch believed the compound to an unfettered to counsel and received the oath would de- failure to administer and make put to on evidence opportunity trial, fair he should prive his client of a of his innocence. arguments defense immediately. His decision have said so— Moreover, gov- supports the record strategic reasons ignore to the error for that the under- ernment’s contention the seriousness suggests something about what the oath was oversight stood the thrust of with which he viewed court’s jurors prose- were all he designed impart. The the earnestness with which justice The interests of during appeal. to tell the truth voir dire and cuted this by allowing a generally are not served by reminded were on several occasions strength government’s may gov- case true. If the 17. The 16. And the converse is also four, not, alone, step preclude but we relief sought retry acquitted a defendant ernment compelling preclusive factors. other describe hard-put by jury, it an unsworn strategic silence. the forefront is Turrietta's At attached, particu- jeopardy argue that had not avoiding system ma- judicial succeeded timely notify larly knowingly if it failed justice deliver nipulation; it did not fail to problem. court of the systemic failure. There was no this case. trial object jurors. to an error after the trial twelve Eleven had party to If party peers and the has lost. served. twelve can be has concluded waived, likely it seems that one can waive AFFIRMED. jury by twelve sworn peers. KELLY, JR., Judge, Circuit PAUL appeal, Mr. argue On Turrietta does not concurring. participation strategy that his in this necessary, lacking. let alone See United I result but would hold concur (10th Oakes, 1243, States v. F.3d 680 1248 an that Mr. Turrietta waived the error of Cir.2012). I am persuaded by those state object jury by failing unsworn before attorney courts that hold that when an discharged. appreciate was I irregularity notices the says nothing, but court’s rich and careful discussion of this then waits for an unfavorable verdict to aspect by jury, of trial but for me the object, he waives his client’s crucial fact is the defense admitted See, cannot complain. e.g., be heard to fully appreciated that the court’s error was Dial, 457, Sibley v. Ga.App. 315 723 S.E.2d any objection but held in reserve in order 689, (2012); 691 Vogh, Or.App. State v. 179 guilty to attack a verdict. Under these 585, 421, (2002); 41 P.3d 426-27 State v. circumstances, the failure to amake con- Arellano, 709, 293, 125 N.M. P.2d 965 296 temporaneous objection was a matter of (1998); State, Sides v. 693 N.E.2d strategy, neglect, and constituted con- (Ind.1998). The reasoning generally proceed jury. sent to with an unsworn attorney is that if an States, informs the court of Puckett v. United 556 U.S. inadvertence, readily it can be 138-40, correct 129 S.Ct. 173 L.Ed.2d 266 ed with a belated administration of the (noting that waiver involves an in- But knowing objec oath. silence treats an relinquishment tentional or abandonment tion like an policy against insurance an of a to seek relief from the error of). adverse result I and is akin to waiver. I complained also not conduct would decline to plain party error review notice the error. A because Mr. Turrietta plain does not seek should not benefit from tactical appeal. error review on muteness Oldbear, speaking when up See United States v. would have F.3d ensured (10th Cir.2009) (failure prompt to brief correction. We would not be the review). plain appellate error forfeits gener first federal circuit to so hold in the al context oaths. See United v. States I doubt the mistake here into that falls Martin, (6th Cir.1984). 1352, 1358 category narrow of error deemed structur- States, 52(b) al error. See Johnson v. United We have discretion under Rule 461, 468-69, error, U.S. plain S.Ct. 137 correct category of “for- Court, error,” L.Ed.2d 718 in Bald- feited-but-reversible United States Kansas, 52, 56, Olano, win v. 725, 732, 507 U.S. (1889),

32 L.Ed. holding (1993), considered a using four-part Supreme Kansas Court that if inquiry. “plain an But error” was never men- oath defectively given, brief, was the defendant tioned in Mr. Turrietta’s and of should have told the court and could not sit course he would have the burden of per- silently by, then, hope acquittal, for an suasion on such a claim. Id. conviction, after object. The Court said S.Ct. 1770. His claim was the “ver- ruling this question. raised no federal In nullity.” Aplt. dict rendered was a Br. 7. States, Patton v. United To the extent that Mr. Turrietta is claim- (1930), ing error, L.Ed. 854 recently structural we com- Court held that a defendant can waive mented that failing defendant to ob- “[a] court in the district error jeet to structural still need establish

likely would seriously affected the plain

error reputation of

fairness, public integrity, See United judicial proceedings.” 1143, 1158 Kieffer, 681 F.3d

Cir.2012).1 party, results when Waiver deliberation, particular liti- chooses

after foregoing press while

gation position Cruz-Rodriguez,

others. United 1179, 1183-84 diminish the oath’s is not to

My purpose parties All to honor it.

significance but are summoned to proceeding

a criminal administration

help proper secure correc- Reserving objections until

justice. discouraged. is to be impossible

tion is STOREY, Plaintiff-Appellant,

Michael TAYLOR;

Sergeant Robert Fer Officer Depart

reyia the Los Lunas Police Lunas,

ment; Village Defen of Los

dants-Appellees.

No. 11-2180. Appeals, States Court

United

Tenth Circuit.

Oct. rights, then the error affected substantial never decided whether 1. The Court has automatically satisfy structural error would whether the error affected the considered test; plain "fairness, error the third element integrity public reputation” rights. the error affects substantial whether proceeding. did decide The Court States, v. United See Puckett structural, specific whether errors 140-41, 129 S.Ct. they Kieffer, implied were not. In we but States, In both Johnson dispens- apparent between noted the tension 468-69, U.S. ing an individualized assessment of (1997), v. Cot- and United States L.Ed.2d a structural error affects substantial whether 625, 632-33, ton, under Fed. R. Crim. rights for harmless error (2002), claimed defendants 152 L.Ed.2d 52(a), requiring plain under it for error P. but structural, yet the Court the error was 52(b). Id. test, assuming plain applied error still

Case Details

Case Name: United States v. Turrietta

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 29, 2012

Citation: 696 F.3d 972

Docket Number: 11-2033

Court Abbreviation: 10th Cir.