Argument preview: Not-so-plain questions about plain error
on Nov 26, 2012 at 10:50 am
Federal Rule of Criminal Procedure 52(b) permits federal courts of appeals to consider “plain” errors “even though [they were] not brought to the [trial] court’s attention.” Is an error in a criminal case “plain” when, by the time the direct appeal is considered, the Supreme Court has clearly ruled that something was error? Or is the error not “plain” because, at the time the trial court ruled, it was unsettled? That is the question that the Court will consider at oral argument in Henderson v. United States on Wednesday, November 28. While the basic points for each side at argument seem clear, and the case involves only the interpretation of a federal rule, rather than a constitutional question, the argument itself may – I stress, may — be more interesting than the question itself portends, for two reasons. First, there appears to be an undeveloped flaw in the case that makes it a poor Rule 52(b) vehicle, since in fact the petitioner, who was the defendant below, did timely bring the error “to the [trial] court’s attention” eight days after the ruling. And second, counsel for the petitioner, Patricia Gilley of Shreveport, Louisiana, is making her first appearance before the Court with merits briefing that is somewhat unusual, while the experienced Supreme Court advocate whose name appeared on the cert. petition has apparently dropped out of the case.
The basic facts are simple. Henderson pled guilty to a felony, and his counsel (Ms. Gilley) stressed in sentencing memoranda that Henderson had a longstanding drug problem and could benefit from drug treatment. The district court obliged; thus, although the recommended federal Sentencing Guidelines range for Henderson was thirty-three to forty-one months, the court sentenced him to sixty months because the best federal drug rehabilitation program requires at least a five-year term for eligibility. At the moment of sentencing, Henderson’s counsel did not object. (Eight days later she filed a timely motion to correct the sentence, but the court did not rule for a number of weeks and then denied the motion on the ground that Federal Rule of Criminal Procedure 35 permits correction only within fourteen days. More on this below.)
By the time of Henderson’s appeal to the Fifth Circuit, the Supreme Court had ruled unanimously, in Tapia v. United States (2011), that federal law “precludes federal sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation.” This rule (and thus the error in Henderson’s case) was so clear that the Solicitor General declined to defend the contrary position in Tapia. The panel that reviewed Henderson’s appeal, however, ruled that despite Tapia the error had not been “clear” or “plain” at the time that the district court sentenced him, because the circuits had been split and the Fifth Circuit’s law on the question had been “unsettled.” (Both the district court that sentenced Henderson and the lawyers in the case appear, however, to have been blissfully unaware of the circuit split or the unsettled state of the law.) Thus the panel ruled that the error had not been correctable under Rule 35(a), nor was it now “plain” within the meaning of Rule 52(b). Rehearing en banc was denied by a vote of ten to seven.
Ironically, however, after Henderson’s petition for certiorari was filed, the Fifth Circuit took a different case en banc, rejected the reasoning employed by the panel in Henderson’s case, and adopted the “time of appeal” rule that Henderson now advocates. Although the federal government alerted the Court to this fact at the cert. stage, it acquiesced in Henderson’s cert. petition – influenced, perhaps, by the fact that an experienced Supreme Court advocate, David Frederick, appeared on that petition (although not as counsel of record), thereby ensuring that Henderson’s position would be well-represented before the Court.
On the merits of the Rule 52(b) question, there are two obvious competing interests: the desire to prevent injustice by correcting clear legal errors on appeal; and the desire to encourage contemporaneous objections in the trial court and to not reverse judgments when a district court made a reasonable – albeit erroneous in hindsight – ruling. The former interest supports a “plain by time of appeal” interpretation, while the latter supports a “plain at the time of the ruling” view. The tension is clear enough that the Court has previously noted and reserved the question, regarding law that is “unsettled” at the time of the trial court ruling, on two prior occasions: in United States v. Olano (1993) and Johnson v. United States (1987).
Rule 52(b) is short, and its text does not appear to answer the timing question presented here. The Rule provides simply that “[a] plain error that affects substantial rights may be considered even though it was not brought to the Court’s attention.” The federal government, which will be represented at the oral argument by Assistant to the Solicitor General Jeffrey Wall, makes a valiant, but ultimately strained, attempt to argue that the plain meaning of this text, in context, requires a “time of ruling” interpretation. But if anything, the text itself seems to suggest that an appellate court may consider any error that is “plain,” without regard to when the error becomes “plain.” We’ll see what the Justices think of the text at oral argument. The Circuits have split at least five to two on the question (depending on how you count), with the clear, and more recent, majority favoring Henderson’s “time of appeal” position.
Finally regarding the “plain” (pun intended) language of Rule 52(b), a helpful amicus brief filed in support of Henderson by the National Association of Criminal Defense Lawyers points out that in 1997, in Johnson v. United States, the federal government took the position that “nothing in the text of Rule 52(b) contemplates or permits any … distinction” in timing requirements for plain error. In Johnson, the Court considered a different scenario, in which the law is clear (not unsettled) at the time of the district court ruling but is then clarified in the opposite direction by the time of appeal. Although the federal government argued then (as now) for a “time of ruling” interpretation, the Court ruled in Johnson that a “time of appeal” rule applied. The Johnson Court was influenced by a factor not present here: when the law at the time of a trial court ruling is settled against a defendant, requiring an objection in the trial court would be fruitless and time-wasting and so ought not be encouraged. Having lost in Johnson, the federal government now argues that a different timing interpretation should apply when the law is “unsettled,” because objection would be neither fruitless nor inefficient. But the NACDL contends that, on the timing point, the federal government previously acknowledged that “the same text [should] not receive a different meaning” depending on context. (The government’s merits brief in this case does not appear to address its prior assertion in its brief in Johnson.)
Assuming that the text does not decide the merits, if all you read was the Court’s “retroactivity” precedents (that settled a long-running debate), you might think that the answer in this case is obvious: in Griffith v. Kentucky, the Court held that “[a] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases … pending on direct review.” Henderson’s brief, in the course of a somewhat meandering discourse on the history of retroactivity doctrine, stresses this point. The government counters, however, that Griffith bears only on whether there has been error, and not whether the error is “plain.” The government goes on to argue that the efficiency and finality purposes that underlie a rule written to leave most errors uncorrected when there has been no objection to them, unless they are “plain,” are best served by a “time of ruling” interpretation. Henderson points out that it may be more inefficient to require appellate courts to examine what prior legal issues were “unsettled,” in cases where the law is clear and thus easily applied, at the time of appeal. The government responds that retrying more cases reversed on appeal may ultimately cost more resources. As is often the case, such a “battle of future efficiencies” seems impossible to definitively resolve.
Finally, it is important to note that the Court has made clear (in Olano) that Rule 52(b) requires that a four-pronged test be fulfilled before relief can be ordered – and this case involves only the second prong. First, there must be error. Second, the error must be plain. Third, the plain error must have affected “substantial rights.” And fourth, even when these criteria are met, granting relief is discretionary and should be ordered only when the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” In other words, even if Henderson prevails here, his case would presumably be remanded for application of the third and fourth prongs. (It is also important to note that because the case involves only the interpretation of a federal rule, rather than the Constitution, Congress or the Advisory Committee can “overrule” any ruling made here.)
If oral argument proceeds merely along the lines presented by the briefs, it will likely still produce clear battle lines. Some Justices are likely to emphasize the benefits of finality, the need for incentives to make contemporaneous objections, and the fairness of not granting a “windfall” to defendants who “sleep on their rights.” Other Justices seem likely to stress the fairness of correcting what is, by the time of appeal, clear legal error, particularly when it results in additional years of imprisonment. This latter concern is emphasized, perhaps, by the Court’s concern in Griffith, echoing Justice Harlan: fairness to defendants who have the same issue in their appeals but are not somewhat randomly chosen (“simply fishing one case from the stream of appellate review”) as the certiorari vehicle for a Supreme Court ruling.
In his brief, Henderson does point out that before he retired, Justice Stevens took a parting shot at the Court’s four-pronged Rule 52(b) precedents, arguing that in light of the Rule’s “spare text,” a simple “unitary standard” of “affected substantial rights” should apply. The Court’s more complicated precedents, said Justice Stevens, “have trapped the appellate courts in an analytic maze.” While that argument is unlikely to gain full acceptance at this late date (in her prior position as Solicitor General, Justice Kagan argued the winning position in that case), it might at least have some traction in advocating for a “unitary” timing standard for a Rule that provides no textual timing answer.
But in addition to these relatively clear, non-constitutional, battle lines, the oral argument may prove more interesting for additional reasons. First, although no party or amicus dwells on the point, the fact remains that in his timely motion to correct his sentence, Henderson did bring his Tapia issue “to the court’s attention” – thus arguably taking it out of the ambit of Rule 52(b). Rule 35(a) provides that “[w]ithin fourteen days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” In Olano, the Court indicated that “plain is synonymous with ‘clear,’ or equally, ‘obvious.’” Thus if the error is “plain” now, then it was “clear” and correctable then – particularly in light of 18 U.S.C. § 3582(a), which Henderson quoted in his Rule 35(a) motion to the district court and which provides that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” “The clarity of that provision’s language,” Justice Kagan emphasized for the unanimous Court in Tapia, underscored the obviousness of the error. Thus this case is arguably not a good Rule 52(b) vehicle, because it is not accurate to say, as the federal government repeatedly does, that Henderson “did not … call the legal issue to the attention of the … district court.”
Simply put, why is this a Rule 52(b) case, and not a Rule 52(a) case, when the error was “brought to the court’s attention” in sufficient time to correct it? It may be that the real issues require decisions about Rule 35: is the obvious Tapia issue the sort of “clear” error that Rule 35 allows district courts to correct? Is the fourteen-day requirement of Rule 35(a) “jurisdictional” or not? This latter issue has not been decided by the Court regarding the current version of Rule 35, and in light of the Court’s recent musings on the topic of “jurisdictional” time limits, the answer is not self-evident – as one decision by the Ninth Circuit has noted. But these questions have not been briefed here (although the Justices may argue about whether it is “fairly subsumed” in the Rule 52(b) question), and they detract from the clarity of many other available Rule 52(b) vehicles.
Thus some the Justices may want to explore, at argument, the question whether this case is an imperfect vehicle for the Rule 52(b) question. But Henderson’s briefs do not even examine that question. The combination of unusual briefing (the petitioner’s reply brief on the merits contains a list of “errata”) and the fact that Ms. Gilley has not argued at the Court before could prove a disadvantage at the hands of Justices opposed to her position. Moreover, given that the Court may have taken some comfort from the fact that David Frederick, a well-respected Supreme Court veteran, appeared on the cert. petition, only to have him disappear from briefing on the merits, one can imagine a scenario in which the Court DIGs the case – that is, dismisses it as improvidently granted. The presumption against a DIG is heavy, but a combination of uneven advocacy plus the undeveloped Rule 35(a) issue might justify it here.
On the other hand, the circuit split on this recurrent issue is deep and consistent, and some uniform interpretation is needed. In any case, Wednesday’s argument may reflect more “fun” for Court followers than initial impressions of the question presented – a technical Rule-based snoozer — would suggest.