Making Sure You Get Your Second Chance on Appeal
Timothy Crooks
Assistant Federal Public Defender and Appellate Chief
Federal Public Defender for the Northern District of
Texas
600 Texas St., Suite 100
Fort Worth, TX 76102
(817) 978-2753
FAX (817) 978-2757
Introduction
As an attorney who now works exclusively on appeals,
I am frustrated when good points of error have not
been properly preserved below. Yet, having also been
a trial attorney, I realize that, in the rush to judgment
in criminal cases, it is all too easy to slip up!
Many times I have heard attorneys speak dismissively
of seminars on preservation of error for appeal --
for example: "All they're going to do is tell
us that we need to object at trial, and I already know
that." But the truth is that, in today's increasingly
complex federal criminal practice, often much more
than just a simple objection is needed. This paper
is designed to give some basic information on preserving
error to make sure that your clients get the full benefit
of their "second chance" on appeal. And,
for the inevitable lapse, I also include some tips
for
maximizing your chances of getting your claims reviewed
even where not perfectly preserved.
Pretrial Motions
The first "gotcha" with respect to pretrial
motions in federal court is Federal Rule of Criminal
Procedure 12(b), which requires that certain motions
must be raised prior to trial:
(1) Defenses and objections based on defects in the
institution of the prosecution; or
(2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense to which objections shall be noticed by the court at any time during the proceedings); or
(3) Motions to suppress evidence; or
(4) Requests for discovery under Rule 16; or
(5) Requests for a severance of charges or defendants under Rule 14.1
Additionally, the district court "may, at the
time of arraignment or as soon thereafter as practicable,
set a time for the making of pretrial motions and requests
...."2 Where the motions specified in Rule 12(b)(1)-(5)
are not filed before the motions date set by the court
(or before trial, where no motions date is set), this
failure constitutes a waiver of the defenses, objections,
and requests you would have made in those motions.
3 However, "the court, for cause shown may grant
relief from the waiver."4 "Cause shown,"
will, of course, vary from case to case. In one case
for example, the Fifth Circuit found that there was
"cause shown" for failure to move to dismiss
an indictment prior to trial where the defendant did
not receive the critical grand jury transcript until
after the trial started, and he filed his motion at
the earliest possible time.5
Also, you should make sure to include as many specific
facts as possible in your pretrial motions because
you cannot count on getting an evidentiary hearing
to flesh out your record. However, an evidentiary hearing
is required -- and hence a district court perforce
abuses its discretion in denying a hearing -- only
where " 'the defendant alleges sufficient facts
which, if proven, would justify relief.'"6 The
motion will allege sufficient facts to justify an evidentiary
hearing only when it is "sufficiently definite,
specific, detailed, and nonconjectural, to enable the
court to conclude that a substantial claim is presented."7
"General or conclusory assertions, founded upon
mere suspicion or conjecture will not suffice."8
Thus, if your motion is not sufficiently detailed,
your motion may be summarily denied without ever having
an evidentiary hearing, and, in the absence of a sufficiently
detailed record, it will be virtually impossible to
get any appellate relief.9
The next pitfall for the unwary with respect to pretrial
motions is the motion in limine. Motions in limine
are excellent devices to try to get pretrial rulings
on the admissibility vel non of certain evidence.
However, you should be advised that, in the Fifth Circuit,
the pretrial motion in limine will not, by itself,
preserve error for appeal: "to preserve error
for appeal, an objection or offer of proof as to the
subject presented by a motion in limine must be made
at trial."10 It is probably a good idea to apply
the same principle to unsuccessful motions to suppress:
i.e., you should renew your objection to the allegedly
suppressible evidence at trial.
Proffer, Proffer, Proffer
"Error may not be predicated upon a ruling which
... excludes evidence unless a substantial right of
the party is affected, and ... [, i]n case the ruling
is one excluding evidence, the substance of the evidence
was made known to the court by offer or was apparent
from the context within which questions were asked."11
The Fifth Circuit appears to have added a gloss to
Rule 103(a)(2), requiring that, not only the substance
of the evidence, but also the relevancy of the evidence
to the defense and the ground(s) for admissibility
of the evidence, have been made known to the court:
"Although a formal offer of proof is not required
to preserve error, the party must at least inform the
trial court 'what counsel intends to show by the evidence
and why it should be admitted.'"12 Thus, in making
a proffer, the prudent practitioner in the Fifth Circuit
is well-advised to give (1) a detailed summary of the
substance of the excluded evidence; (2) all the things
you expect to show or prove by that evidence; and
(3) all the grounds on which the evidence should be
admitted.
While a general description of the excluded evidence,
or a global proffer of mass prior testimony or evidence,
is generally not sufficient to preserve error, it may
be sufficient where the trial court chills or restricts
the party's ability to make a more detailed proffer.13
Thus, in Ballis, the Fifth Circuit found that a global
proffer of the entire record of a previous motion to
dismiss hearing was adequate to preserve error where
the trial judge warned that he did not need to be "spoon
fed" about every possible nuance of the question,
and where the judge expressed an intimate familiarity
with the testimony offered and in fact accepted the
global proffer as sufficient.14
The same principles apply where the error complained
of is not one pertaining to the exclusion of evidence
per se, but is one pertaining to the trial process
leading to the discovery, production, and introduction
of evidence. For example, where a defendant moves
for continuance on the basis of the unavailability
of a witness, it is incumbent upon the defendant to
show the court that "due diligence has been exercised
to obtain the attendance of the witness, that substantial
favorable evidence would be tendered by the witness,
that the witness is available and willing to testify,
and that the denial of the continuance would materially
prejudice the defendant."15 Likewise, if the
district court denies you the opportunity to present
surrebuttal at trial, you must proffer the substance
of your surrebuttal; failure to do so will doom your
chances on appeal.16 The Fifth Circuit has upheld
a district court's denial of a defense request for
appointment of an investigator under the Criminal Justice
Act (18 U.S.C. Sec. 3006A(e)(1)) where the request (1)
lacked the requisite specificity as to the prospective
witnesses the defense wished to contact and their relevance;
(2) did not specify other investigative leads which
the defense wished to pursue; and (3) did not recite
that defense counsel had ferreted out information through
his own efforts which was likely to lead to the discovery
of relevant evidence.17 On the same principle, where
the judge refuses to issue a subpoena, you should proffer,
as specifically as you can, what you expect the witness's
testimony will be in order to nail down your record
on appeal.
The rule is simple: whenever the judge keeps out evidence
that you need for your case, you should state on the
record (or file a written submission into the record,
if the judge will not let you make an oral proffer)
(1) a detailed summary of the evidence; (2) why the
evidence is necessary to your case; and (3) why it
is admissible. Doing this in every case will insure
that the appellate court will review your claims of
erroneous exclusion on the merits rather than "punting"
by finding that there was an insufficient proffer to
permit appellate review.
The Contemporaneous Objection Rule
The contemporaneous objection rule is codified at Federal
Rule of Evidence 103(a)(1) which provides that "[e]rror
may not be predicated upon a ruling which ... excludes
evidence unless a substantial right of the party is
affected, and ... [, i]n case the ruling is one admitting
evidence, a timely objection or motion to strike appears
of record, stating the specific ground of objection,
if the specific ground was not apparent from the context."18
There are two notable exceptions to the contemporaneous
objection rule: first, no objection is required where
the judge presiding at the trial testifies in the trial
as a witness.19 Second, where the judge calls or interrogates
witnesses, the objection may be deferred until "the
next available opportunity when the jury is not present."20
It bears repeating that, in the Fifth Circuit, a
pretrial motion in limine will not obviate the need
for a contemporaneous objection at trial. Rather,
"to preserve error for appeal, an objection or
offer of proof as to the subject presented by a motion
in limine must be made at trial."21 This does
not mean, however, that pretrial motions in limine
are utterly useless. First of all, you may actually
win them, get what you asked for, and never need to
appeal. But second, even if you do not prevail on
your motions in limine before trial, they often provide
a convenient shorthand for making an objection during
trial: for example, "Objection, Your Honor, for
all the reasons, and on all the grounds, stated in
defendant's motion in limine." An objection of
this type is quickly made and quickly disposed of,
preserving error and preserving the good will of the
judge at the same time.
Other Trial Problems
In order to attack on appeal a district court's refusal
to strike a juror for cause, you should, in addition
to objecting to the court's ruling, (1) use a peremptory
to strike the unsuccessfully challenged juror; (2)
use up all your peremptories; and (3) identify other
jurors you would have used your peremptory on but for
the fact of being forced to use it on the unsuccessfully
challenged juror.22 From time to time, there have
been some murmurings that a defendant should also have
to show that particular jurors who actually sat were
objectionable; however, for the most part, the Fifth
Circuit appears to recognize that, at least in federal
direct appeals, this showing need not be made under
current jurisprudence.23
Another possible problem is a party's use of peremptory
challenges on the impermissible basis of race or gender,
in violation of Batson v. Kentucky24 and its progeny.25
First of all, in order to be timely, a Batson challenge
must be made before the venire is dismissed and before
the trial commences; it is not sufficient that challenge
be made prior to the jury's being sworn.26 Second,
in order even to require the opposing party to explain
its strikes, the challenging party must make out a
prima facie case that the strikes were exercised for
an impermissible reason.27 At this point, the burden
shifts to the striking party to explain its strikes.28
However, then, in order to preserve the Batson issue
for appeal, the challenging party must object to/dispute
the explanations, explain why those explanations are
a pretext for impermissible discrimination on the basis
of race or gender, and request the court to make a
ruling; otherwise the claim is waived.29
It is incumbent upon every trial practitioner to move
for judgment of acquittal (1) at the close of the government's
evidence; and (2) at the close of all the evidence.
Failure to do so will forfeit plenary review of any
claims of insufficiency of the evidence, and any such
claims will be reviewed only for a "manifest miscarriage
of justice."30 Such a miscarriage exists only
if the record lacks any evidence pointing to guilt
or if the evidence was so tenuous that a conviction
would be "shocking."31 A narrow exception
to this rule exists where the defendant moves for judgment
of acquittal after the government's case, and then
immediately rests without putting on any evidence;
in such a case, the sufficiency of the evidence is
reviewed under the plenary standard of review.32 Likewise,
the failure to move for judgment of acquittal does
not constitute waiver where the trial court's action
renders the motion for acquittal "an empty ritual."33
Sentencing
The key to preserving error at sentencing is to make
comprehensive written objections to the presentence
report (PSR) and any addenda thereto, and to renew
those objections orally at the sentencing hearing (assuming,
of course, that they are not resolved in your favor
prior to sentencing). This is especially true with
respect to the factual determinations underlying the
selection of the Guidelines offense level -- e.g.,
drug quantity, amount of loss, role in the offense,
etc. -- since a considerable body of Fifth Circuit
law has held that questions of fact capable of resolution
by the district court upon proper objection at sentencing
can never constitute plain error.34
It is important to remember that the defense carries
the burden of proving mitigating factors by a preponderance
of relevant and sufficiently reliable evidence.35
Moreover, a party does not carry its burden at sentencing
merely by the unsworn assertions of counsel, as these
do not constitute a sufficiently reliable basis for
sentencing.36
Downward departures are often requested but seldom
granted. Moreover, unless you are very careful to
lay the record correctly, the district court's denial
of a downward departure will not be reviewable on appeal.
Generally speaking, an appellate court has no jurisdiction
under 18 U.S.C. Sec. 3742 to hear an appeal of a lawful
Guidelines sentence where the district court has exercised
its discretion not to depart downward; in such cases,
the appeal must be dismissed for lack of jurisdiction.37
However, where a district court's refusal to depart
downward is not discretionary, but rather is based
upon the court's mistaken belief that it legally does
not possess the authority to depart, the resulting
sentencing is "in violation of law," and
appellate jurisdiction does therefore lie, under 18
U.S.C. Sec. 3742(a) (1).38 The moral is that, if possible,
you should get the sentencing judge to expressly articulate
on the record that s/he would depart if s/he thought
s/he had the authority to do so.
You should be especially careful to object to any objectionable
noncustodial aspects of the sentence -- e.g., punitive
fines, costs of incarceration, restitution, etc. In
these cases, there is, of course, the usual consequence
that your failure to do so will invoke the plain error
standard on appeal. However, there is also the additional
consequence that your failure to make these claims
will not later be cognizable as ineffective assistance
of counsel in a subsequent motion to vacate or set
aside under 28 U.S.C. Sec. 2255, because, the Fifth Circuit
has held, (1) a challenge to a cash fine or restitution
order does not meet the "in custody" requirement
of Sec. 2255 because (2) Congress intended to limit the
types of claims cognizable under Sec. 2255 to claims relating
to unlawful custody.39 In the cited Gaudet case, for
example, defense counsel raised, for the first time
on appeal, a substantial sentencing question with
respect to a question relating to a restitution order,
but the Fifth Circuit declined to review it on the
merits on the defendant's direct appeal because it
had not been raised in the district court. Then, when
the defendant tried to assert on Sec. 2255 that counsel
had been ineffective for failing to raise it, the Fifth
Circuit declined to reach it because defendant was
not "in custody" as to that portion of the
sentence! The Gaudet case illustrates the enhanced
importance of making proper objections to, and preserving
plenary appellate review of, the objectionable noncustodial
portions of a defendant's sentence.
Finally, make sure you object to illegal/improper conditions
of probation and supervised release so that they can
be appealed at the time the original judgment is entered.
If you do not, it will be extremely difficult, if
not impossible, to challenge them later when the defendant's
probation/supervised release is being revoked for failure
to comply with those conditions.
Consequences of Failure to Preserve Error
Failure to preserve error generally results in the
application of the stringent "plain error"
test. The plain error test derives from Federal Rule
of Criminal Procedure 52(b), which provides that "[p]lain
errors or defects affecting substantial rights my be
noticed although they were not brought to the attention
of the court."40 In order for there to be "plain
error" warranting reversal, four elements must
be satisfied:
(1) There must be an "error." "Deviation
from a legal rule is 'error' unless the rule has been
waived."41
(2) The error must be "plain." "'Plain'
is synonymous with 'clear' or, equivalently, 'obvious.'"42
The Supreme Court in Olano declined to decide whether
the error had to be plain at the time of trial/sentencing,
or merely at the time of appeal.43 However, it appears
that the Fifth Circuit has decided what the Supreme
Court left open in Olano, and has imposed a requirement
that the error be clear at the time of trial or sentencing,
although the issue is not free from doubt.44
(3) The plain error must "affect substantial rights,"
which normally, although not necessarily always, means
that the error prejudiced the defendant.45 The defendant
bears the burden of proving that his substantial rights
were affected by the plain error.46
(4) Finally, even if all of the first three factors
are satisfied, "the Court of Appeals has authority
to order correction but is not required to do so."47
It should exercise its discretion to correct the plain
forfeited error if failure to correct the error would
result in a "miscarriage of justice" or,
put another way, "if the error 'seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.'"48 The Fifth Circuit has in two
recent cases invoked its discretion under this fourth
Olano prong to decline to reverse convictions for errors
which at least presumably satisfied the first three
Olano prongs.49 This suggests that practitioners should
give special attention to showing why the fourth Olano
prong is satisfied -- and why the appellate court should
exercise its discretion in favor of correction of the
error -- and not simply rest on their laurels after
showing that the first three Olano factors are present.
Some errors may simply not be remediable on appeal
without a timely objection. For example, as discussed
above, a number of Fifth Circuit cases have held that
questions of fact capable of resolution by the district
court upon proper objection at sentencing can never
constitute plain error.50 However, the better course
is to attempt to fit the forfeited error into plain
error analysis and to raise it on direct appeal anyway
because (1) your client's chances are almost always
better on the direct appeal than on collateral attack;
and (2) your client will likely not have counsel to
assist him or her with a Sec. 2255 motion, and thus will
likely not be able to raise the issue as artfully,
persuasively, or thoroughly as you can.
Even post-Olano and post-Calverley, the Fifth Circuit
has still found some errors to be "plain error"
justifying their correction even when raised for the
first time on appeal:
(1) Use of a stale prior convictions under the Guidelines'
criminal history provisions;51
(2) Application of the wrong section of the Guidelines;52
(3) Impermissible "double counting" resulting
from use of same conduct to support two enhancements
in violation of clear language of the relevant Guideline's
commentary;53
(4) Delegation of authority to the probation officer
to set the amount and timing of installment payments
on restitution orders54 and fines;55
(5) Failure to submit the issue of materiality to
the jury as required by United States v. Gaudin, ____
U.S. ____, 115 S.Ct. 2310 (1995);56
(6) Sentence exceeding the statutory maximum;57
(7) Impermissible judicial deportation as supervised
release condition under 18 U.S.C. Sec. 3583 in violation
of United States v. Quaye, 57 F.3d 447 (5th Cir. 1995);58
and
(8) Improper prosecutorial argument.59
Additionally, the following types of errors, albeit
supported by citation to pre-Olano/pre-Calverley authority,
are probably still cognizable as plain error:
(1) Conviction under a statute declared unconstitutional
while case is pending on direct appeal;60
(2) Breach of a plea agreement;61 and
(3) Use of wrong version of Guidelines.62
NOTE: The above listing is in no way intended to be
a complete or exclusive listing of the errors which
may qualify as reversible "plain error."
Whether an error is "plain error" requiring
reversal will almost inevitably turn on the unique
facts and circumstances of each case, and previous
examples are instructive only.
So You Forgot to Preserve Error ...
(Appeal Fixers)
Despite your best intentions, you forgot to preserve
error. Before donning your sackcloth and ashes, consider
the following "appeal fixers" which may save
the day for you:
(1) Did you have a continuing, or "running,"
objection to the type of error which occurred, which
obviated the need for a contemporaneous objection?
(2) In some cases, the Fifth Circuit has held that
where one party objects, the court presumes that the
other parties have joined in the objection.63
(3) In other cases, the Fifth Circuit has held that
it will allow one appellant to adopt the arguments
of another co-appellant, thus raising the issue for
the first time on appeal, where it would be "'anomalous
to reverse some convictions and not others when all
defendants suffer from the same error.'"64
(4) Where the error goes to the authority or jurisdiction
of the court to act, the error may be cognizable despite
failure to object, irrespective of the plain error
doctrine.65
Even if you are forced into the "plain error"
groove, it is worthwhile reminding the Court of Appeals
that "under the plain error inquiry, errors of
constitutional dimension will be noticed more freely
than less serious errors."66 Also, appellate
scrutiny under a more lenient standard of review than
the strict plain error standard may be appropriate
when the failure to preserve the precise grounds for
error is mitigated by an objection on related grounds.67
Conclusion
It is unquestionably better to preserve the error when
you can, thus avoiding the handicap of plain error
review. However, if you are saddled with a less than
perfectly preserved error while handling an appeal,
there is no need to despair. Vigorous and creative
advocacy can still save the day.
1 Fed. R. Crim. P. 12(b).
2 Fed. R. Crim. P. 12(c).
3 Fed. R. Crim. P. 12(f). While some appellate
courts conduct plain error review where Rule 12(f)
waiver has occurred, see, e.g., United States v. Nuñez,
19 F.3d 719, 723 n.10 (1st Cir. 1994), the Fifth Circuit
has not yet decided whether the language of Rule 12(f)
mandates such a review. See United States v. Tolliver,
61 F.3d 1189, 1199 n.6 (5th Cir. 1995), cert. granted
and judgment vacated on other grounds, ____ U.S. ____,
116 S.Ct. 900 (1996) and cert. denied, ____ U.S. ____
& ____, 116 S.Ct. 969 & 1445 (1996).
4 Fed. R. Crim. P. 12(f).
5 United States v. Cathey, 591 F.2d 268, 271
n.1 (5th Cir. 1979).
6 United States v. Mergist, 738 F.2d 645, 648
(5th Cir. 1984), quoting United States v. Harrelson,
705 F.2d 733, 737 (5th Cir. 1983).
7 Harrelson, 705 F.3d at 733.
8 Id.
9 See, e.g., United States v. Smith-Bowman,
76 F.3d 634, 637-38 (5th Cir.)(district court did not
abuse its discretion in denying motion to transfer
venue for excessive pretrial publicity without an evidentiary
hearing, where, among other things, defendant did not
allege with specificity that the community had been
saturated with negative media coverage of the charges
against her, nor did she include with her motion any
copies of, or excerpts from, specific newspaper stories
or television reports that focused on her, the charges
against her, or the pending trial), cert. denied, ____
U.S. ____, 1996 WL 282292 (June 17, 1996) (No. 95-8994).
10 United States v. Graves, 5 F.3d 1546, 1552
n.6 (5th Cir. 1993)(bolded emphasis supplied), cert.
denied, ____ U.S. ____, 114 S.Ct. 1829 (1994); see
also, id. at 1551-52. However, the rule may not be
impregnable. The Graves court found that the defendant
in that case would not prevail even under plenary review;
but then "recommend[ed] en banc review ... of
our circuit's rule on renewing objections to in limine
rulings ... in the appropriate case." Id. at
1553.
11 Fed. R. Evid. 103(a) & (2) (emphasis
supplied); see, E.g., United States v. Scott, 48 F.3d
1389, 1397 (5th Cir.)(holding that defendant did not
preserve for appeal the issue of improper restriction
on cross-examination/impeachment of government witness,
where defendant failed to make an offer of proof to
the district court as to which portions of the criminal
record of the government's witness should have entered
into evidence), cert. denied, ____ U.S. ____, 116 S.Ct.
264 (1995).
12 United States v. Clements, 73 F.3d 1330,
1336 (5th Cir. 1996) (emphasis in original), quoting
United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir.
1994). In Clements, the Fifth
Circuit applied this rule to hold that the district
court did not abuse its discretion in excluding evidence
of defendant's poor CheckFax credit rating as hearsay,
where "[d]efense counsel ... made no attempt to
inform the district court that [defendant's] testimony
about his CheckFax rating was being sought to prove
something other than the truth of his rating."
Clements, id.
13 See Ballis, 28 F.3d at 1406-07.
14 Id.
15 Scott, 48 F.3d at 1394 (internal quotation
marks and citations omitted). In Scott, the Fifth
Circuit rejected the defendant's claim that a continuance
was necessary in order to secure the services of a
voice expert for analysis of evidentiary tapes, on
the basis that the defendant had not demonstrated due
diligence in obtaining such an expert, availability
and willingness of such an expert to testify, or that
the testimony would be favorable if secured. Id.
16 See, e.g., United States v. Wright, ____
F.3d ____ , 1996 WL 309518 (5th Cir. June 5, 1996)
(No. 95-10660) (denial of surrebuttal was not an abuse
of discretion "because Wright 'failed to proffer
to the district court the substance of his surrebuttal
testimony'"; quoting and citing United States
v. Alford, 999 F.2d 818, 821 (5th Cir. 1993)).
17 United States v. Gadison, 8 F.3d 186, 191
(5th Cir. 1993).
18 Fed. R. Evid. 103(a) & (1) (emphasis
supplied).
19 Fed. R. Evid. 605. Rule 605 provides that
"[t]he judge presiding at the trial may not testify
in that trial as a witness. No objection need be made
in order to preserve the point."
20 Fed. R. Evid. 614(c). Note, however, that
an objection is required in order to preserve this
type of error on appeal, as opposed to the "automatic
objection" rule contained in Rule 605. See Advisory
Committee Notes to Rule 614(c). Failure to object
either contemporaneously or at the first opportunity
when the jury is not present will subject your claims
of excessive questioning by the court to review only
for plain error. See, e.g., United States v. Wright,
____ F.3d ____ , 1996 WL 309518 (5th Cir. June 5, 1996)
(No. 95-10660).
21 Graves, 5 F.3d at 1552 n.6; see also, id.
at 1551-52. However, as discussed above, this rule
may be susceptible to challenge in the proper case.
See footnote 10, supra.
22 For a good example of how this was done
right, see United States v. Muñoz, 15 F.3d 395,
396-98 (5th Cir.), cert. denied, ____ U.S. ____, 114
S.Ct. 2149 (1994). See also, United States v. Bryant,
991 F.2d 171, 174 & n.3 (5th Cir. 1993).
23 Bryant, 991 F.2d at 174 n.3; see also, Muñoz,
15 F.3d at 398. Both Bryant and Muñoz cite
in this regard the Fifth Circuit's decision in United
States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976)
("[A]s a general rule it is erroneous for a court
to force a party to exhaust his peremptory challenges
on persons who should be excused for cause, for this
has the effect of abridging the right to exercise peremptory
challenges."). But see, United States v. Mendoza-Burciaga,
981 F.2d 192, 197-98 (5th Cir. 1992)("Mendoza-Burciaga
makes no claim that he was prejudiced by having to
use the peremptory challenge to strike the [prospective
juror whom he unsuccessfully challenged for cause]
rather than someone else .... [T]here was no harm ...
as the [juror challenged for cause] never served."),
cert. denied, ____ U.S. ____, 114 S.Ct. 356 (1993).
24 476 U.S. 79 (1986).
25 The Supreme Court has only recently held
that, under the reasoning of Batson, it likewise violates
the Equal Protection Clause to exclude potential jurors
solely on the basis of their gender. J.E.B. v. Alabama
ex rel. T.B., 511 U.S. 127, ____, 114 S.Ct. 1419, 1430
(1994).
26 United States v. Maseratti, 1 F.3d 330,
335 (5th Cir. 1993) (citation omitted) (Batson claim
waived because not made prior to dismissal of the venire),
cert. denied, ____ U.S. ____ & ____ & ____,
114 S.Ct. 1096 & 1552 and 115 S.Ct. 282 (1994).
27 Batson, 476 U.S. at 93-97.
28 Id. at 97-98.
29 United States v. Arce, 997 F.2d 1123, 1127
(5th Cir. 1993) (where defense did not dispute or contest
the prosecutor's explanation for exercise of peremptory
challenge against Hispanic venireman, Batson challenge
to peremptory challenge was waived).
30 E.g., United States v. Shaw, 920 F.2d 1225,
1230 (5th Cir.), cert. denied, 500 U.S. 926 (1991).
This writer and other federal public defenders in
the Western District of Texas have challenged this
reduced standard as violative of due process, equal
protection, and Federal Rule of Criminal Procedure
29. Although the Fifth Circuit has recognized that
there is some force to these arguments, see, e.g.,
United States v. Paniagua, No. 93-8722 (5th Cir. Dec.
16, 1994) (unpublished) (citing United States v. Pennington,
20 F.3d 593, 597 & n.2 (5th Cir. 1994) and United
States v. Sias, No. 93-5475 (5th Cir. Sept. 30, 1994),
cert. denied, ____ U.S. ____, 115 S.Ct. 1325 (1995)
at 4 n.1), the Fifth Circuit has avoided deciding the
issue on the merits in every case it which is raised,
either by finding an exception to the waiver rule (e.g.,
Pennington) or by finding that the result would be
the same irrespective of the standard applied (e.g.,
Paniagua). The Fifth Circuit has also suggested that
the two standards might, in fact, be indistinguishable;
but has likewise declined to decide this issue. See,
e.g., Pennington, 20 F.3d at 597 n.2 (5th Cir. 1994);
see also, United States v. Davis, 583 F.2d 190, 199
(5th Cir. 1978) (Clark, J., concurring).
31 United States v. Ruiz, 860 F.2d 615, 617
(5th Cir. 1988).
32 E.g., United States v. Jaras, ____ F.3d
____ , ____ n.5, 1996 WL 316478 *3 n.5 (5th Cir. June
11, 1996) (No. 95-40113), citing United States v. Resio-Trejo,
45 F.3d 907, 910 n.6 (5th Cir. 1995).
33 E.g., Pennington, 20 F.3d at 597 n.2, citing
United States v. Gonzalez, 700 F.2d 196, 204 n.6 (5th
Cir. 1983).
34 See, e.g., United States v. Lopez, 923
F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S. 924
(1991) United States v. Young, 981 F.2d 180, 188 (5th
Cir. 1992), cert. denied, 508 U.S. 955 & 980 (1993);
United States v. Guerrero, 5 F.3d 868, 871 (5th Cir.
1993), cert. denied, ____ U.S. ____, 114 S.Ct. 1111
(1994); United States v. McCaskey, 9 F.3d 368, 376
(5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct.
1565 (1994); United States v. Fierro, 38 F.3d 761,
774 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115
S.Ct. 1388 and 1431 (1995); United States v. Dean,
59 F.3d 1479, 1494 (5th Cir. 1995), cert. denied, ___
U.S. ___, 116 S.Ct. 748 and 794 (1996); United States
v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).
35 E.g., United States v. Alfaro, 919 F.2d
962, 965 & n.10 (5th Cir. 1990) (citations in footnote
omitted).
36 E.g., United States v. Patterson, 962 F.2d
409, 415 (5th Cir. 1992), citing United States v. Johnson,
823 F.2d 840, 842 (5th Cir. 1987).
37 United States v. DiMarco, 46 F.3d 476, 477-78
(5th Cir. 1995).
38 United States v. Burleson, 22 F.3d 93, 95
(5th Cir.)(citation omitted), cert. denied, ____ U.S.
____, 115 S.Ct. 283 (1994); see also, DiMarco, 46 F.3d
at 478.
39 See, e.g., United States v. Gaudet, 81 F.3d
585, 592 (5th Cir. 1996), citing United States v. Segler,
37 F.3d 1131, 1136-37 (5th Cir. 1994).
40 Fed. R. Crim. P. 52(b).
41 United States v. Olano, ____ U.S. ____,
113 S.Ct. 1770, 1777 (1993); see also, United States
v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en
banc), cert. denied, ____ U.S. ____, 115 S.Ct. 1266
(1995).
42 Olano, 113 S.Ct. at 1777 (citations omitted);
see also, Calverley, 37 F.3d at 162-64.
43 Olano, id. ("We need not consider the
special case where the error was unclear at the time
of trial but becomes clear on appeal because the applicable
law has been clarified. At a minimum, the Court of
Appeals cannot correct an error pursuant to Rule 52(b)
unless the error is clear under current law.")
44 In Calverley, the Fifth Circuit stated that
the requirement that the error be "plain"
"contemplates an error which was 'clear under
current law' at the time of trial." Calverley,
37 F.3d at 162-63 ; see also, United States v. McGuire,
79 F.3d 1396, 1413 (5th Cir. 1996) (Smith, J., dissenting)
(Calverley requires that error be plain at time of
trial or sentencing). However, this statement in Calverley
was arguably dicta since the error in Calverley was
not "plain" at the time of appeal either,
in light of a continuing circuit split. McGuire demonstrates
the sharp differences of opinion of Fifth Circuit judges
on this point. Judge DeMoss opined that, Calverley
notwithstanding, "when there is no error under
existing law at the time of trial, but plain error
under existing law when the appeal is decided, the
plainness prong of Rule 52(b) is satisfied."
McGuire, 79 F.3d at 1402 (opinion of DeMoss, J.).
Judge Wiener, taking a different tack, would not even
attempt to apply plain error doctrine in such a situation,
because in such a situation, he said, there is no error
at the time of trial, plain or otherwise. Rather,
he urged the adoption of a separate jurisprudential
doctrine, called the "supervening decision doctrine,"
"where the following factors coincide: (1) law
that is well-settled and thus unobjectionable at the
time of trial (2) is changed (3) without warning (4)
during direct appeal." McGuire, 79 F.3d at 1410
(Wiener, J., concurring); see also, id. at 1406-13.
45 Olano, 113 S.Ct. at 1777-78; Calverley,
37 F.3d at 164.
46 Olano, id.; Calverley, id.
47 Olano, id. at 1778; see also, Calverley,
id.
48 Olano, id. at 1779 (citation omitted); see
also, Calverley, id.
49 See United States v. Allen, 76 F.3d 1348,
1367-68 (5th Cir. 1996); United States v. Jobe, 77
F.3d 1461, 1475-76 (5th Cir. 1996).
50 See footnote 34, supra.
51 See, e.g., United States v. Green, 46 F.3d
461, 467 (5th Cir. ), cert. denied, ____ U.S. ____,
115 S.Ct. 2629 (1995).
52 See, e.g., United States v. Franks, 46 F.3d
402, 404-405 (5th Cir. 1995).
53 See, e.g., United States v. Cabral-Castillo,
35 F.3d 182, 188-89 (5th Cir. 1994), cert. denied,
____ U.S. ____, 115 S.Ct. 1157 (1995).
54 See, e.g., United States v. Albro, 32 F.3d
173, 174 & n. 1 (5th Cir. 1994) .
55 See, e.g., United States v. Leslie E. Campbell,
Jr., No. 94-11109 (5th Cir. Dec. 27, 1995)(unpublished),
cert. denied, ____ U.S. ____, 1996 WL 226658 (1996).
In the Fifth Circuit, unpublished opinions issued
before January 1, 1996 are precedent; but, if an unpublished
opinion is cited, a copy must be attached to the document
in which it is cited. Fifth Cir. Loc. R. 47.5.3.
56 See, e.g., McGuire, 79 F.3d at 1401-1405
(opinion of DeMoss, J.).
57 See, e.g., United States v. Collins, 40
F.3d 95, 101 (5th Cir. 1994), cert. denied, ____ U.S.
____, 115 S.Ct. 1986 (1995).
58 See, e.g., United States v. Antonio Rodriquez,
No. 94-10751 (5th Cir. June 27, 1995) (unpublished),
cert. denied, ____ U.S. ____, 116 S.Ct. 400 (1995).
See also, footnote 55, supra, regarding the precedential
value of unpublished Fifth Circuit opinions.
59 See, e.g., United States v. Flores-Chapa,
48 F.3d 156, 159-161 (5th Cir. 1995).
60 See, e.g., United States v. Knowles, 29
F.3d 947, 950-52 (5th Cir. 1994).
61 See, e.g., United States v. Goldfaden, 959
F.2d 1324, 1328 (5th Cir. 1992).
62 See, e.g., United States v. Gross, 979 F.2d
1048, 1052 (5th Cir. 1992).
63 See, e.g., United States v. Sanchez-Sotelo,
8 F.3d 202, 210 (5th Cir. 1993) (citing Howard v. Gonzales,
658 F.2d 352, 355 (5th Cir. Unit A 1981)), cert. denied,
____ U.S. ____, 114 S.Ct. 1910 (1994).
64 United States v. Miles, 10 F.3d 1135, 1137
n.3 (5th Cir. 1993), quoting United States v. Gray,
626 F.2d 494, 497 (5th Cir. 1980), cert. denied, 449
U.S. 1038 (1980) & 1091 (1981) & 450 U.S. 919
(1981).
65 See Kelly v. United States, 29 F.3d 1107,
1113 (7th Cir. 1994) ("[Q]uestions about the [district]
court's jurisdiction cannot be waived."), citing
Freytag v. Commissioner of Internal Revenue, 501 U.S.
868, ____, 111 S.Ct. 2631, 2648 (1991) (Scalia, J.,
concurring); cf. FED. R. CRIM. P. 12(b)(2) (failure
of indictment or information to show jurisdiction in
the court "shall be noticed by the court at any
time during the pendency of the proceedings").
The Fifth Circuit has cited Kelly with approval for
this very proposition in United States v. Rodriquez,
cited in footnote 58, supra. In any event, courts
have repeatedly held that sentences which are beyond
the statutory authority of court to impose are plainly
erroneous. See United States v. Cobbs, 967 F.2d 1555,
1558 (11th Cir. 1992); United States v. Wainwright,
938 F.2d 1096, 1098 (10th Cir. 1991); cf. United States
v. Collins, 40 F.3d at 101 (sentence exceeding statutory
maximum is plainly erroneous); United States v. Gardner,
18 F.3d 1200, 1201 (5th Cir.) (implying that sentence
pursuant to Guideline promulgated beyond the Sentencing
Commission's statutory authority would be plainly erroneous,
and giving apparently plenary review to such a question
despite lack of objection below), cert. denied, ___
U.S. ___, 115 S.Ct. 212 (1994).
66 Knowles, 29 F.3d at 951; see also, e.g.,
United States v. Lopez, 923 F.2d 47, 50 (5th Cir.),
cert. denied, 500 U.S. 924 (1991).
67 E.g., Lopez, 923 F.2d at 50; United States
v. Brown, 555 F.2d 407, 420 (5th Cir. 1977), cert.
denied, 435 U.S. 904 (1978); cf. United States v. Watson,
966 F.2d 161, 162 n.1 (5th Cir. 1992) (propriety of
use of retail value of stolen goods instead of wholesale
value sufficiently preserved for plenary review despite
fact that appellant did not frame issue as precisely
below as on appeal, because appellant did urge below
that wholesale figure be used instead of retail figure).