Train wreck avoided: Plain errors may be corrected even when “plain” only on appeal
on Feb 25, 2013 at 11:36 am
When a criminal defendant’s sentence is plainly unlawful in light of an intervening Supreme Court decision, is “plain error” correction prohibited under Federal Rule of Criminal Procedure 52(b) because the law was unsettled when the district court imposed sentence and the defendant failed to object? Happily, the Court answered “no” in last Wednesday’s opinion in Henderson v. United States, so that prospect of plainly illegal sentences going uncorrected on direct appeal is avoided (or at least reduced). Still, the Court split six to three, and like most arcane legal rules, Rule 52(b) was subject to differing interpretations once placed under the Court’s microscope. Of course, the Rule is always subject to amendment, so the majority’s non-constitutional ruling can be altered if Congress disagrees.
The text of Rule 52(b) is short – much shorter than the series of opinions the Court has issued over two decades to determine its application to differing scenarios: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” As Justice Breyer’s majority opinion notes, the rule embodies “two important [but] competing legal principles.” One is that a right may be forfeited if not timely asserted – thus Rule 52(b) does not permit all unobjected-to errors to be corrected on appeal, so as to encourage contemporaneous objections. On the other hand, fairness (or “fundamental justice” as was said in United States v. Olano (1993)), sometimes dictates that an appellate court correct a significant error to which the defendant failed to object. Thus, as Justice Breyer noted both at oral argument and in his opinion, Chief Justice Marshall wrote long ago, in United States v. Schooner Peggy (1801), that “if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule that governs, the law must be obeyed or its obligation denied.” Amarcion Henderson’s appeal presented the very situation seemingly identified in Schooner Peggy. Upon Henderson’s conviction for being a felon in possession of a gun, the district court sentenced him to sixty months in prison, which was above the Guideline range. The judge’s expressed reason for the longer sentence was to help Henderson – the judge believed that at least a sixty-month sentence was necessary to make Henderson eligible for a special drug treatment program in prison. Not only did Henderson not object, but his submissions appeared to seek this result.
At the time Henderson’s judge acted, the law regarding his “help the defendant” reason for imposing a longer sentence was unclear in his circuit. Some other circuits had approved the rationale, while others had condemned it. But after Henderson filed his direct appeal, the Supreme Court granted cert. on the issue, and in 2011 decided (in Tapia v. United States) that a longer imprisonment sentence “to promote rehabilitation” is statutorily unlawful.
Thus by the time Henderson’s appeal reached the Fifth Circuit, the sentencing error was plain – but it had not been “plain” when the district court had acted. The Fifth Circuit concluded that Rule 52(b) did not permit correction of the unobjected-to error here, ruling that a plain error must be “clear . . . at the time of trial.”
Finding that the Rule’s text and precedents do not answer “the temporal question,” the majority concluded that consistency as well as fairness requires that an error that is plain by the time of appeal is at least eligible for correction. Whether it must be corrected will depend on the application of the final factor (of four) that the Court identified in Olano as governing: “whether the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Henderson’s case is remanded for (presumably) that determination, and the majority notes that his failure to object when the law was unsettled “may well count against the grant of Rule 52(b) relief.”
Nevertheless, the ruling that such errors are eligible for relief under Rule 52(b) is an important one. The most powerful point in favor of the majority’s ruling – other than simple fairness — is consistency of precedent. In two prior cases, the Court has ruled that other errors may be corrected as “plain” despite the lack of a contemporaneous objection. First is the obvious case: when the error is perfectly clear at the time the district court rules, such that everyone – judge, prosecutor, and defense – should have caught it. Correction of such “plain errors” was approved in Olano, albeit under the rigorous four-step standard mentioned above. Second, in Johnson (1997), the Court addressed the opposite situation: where the district court rules correctly under law that is settled at the time, but then an intervening Supreme Court decision to the contrary makes the trial court’s ruling clearly wrong by the time of appeal. Because requiring contemporaneous objections when the law is settled against the defense would be futile and inefficient, Johnson ruled that such unobjected-to issues may be corrected under Rule 52(b) when an intervening decision changes the law. (Thus Johnson also “forecloses” any textual argument based on the word “was” in the Rule.)
This would have left Henderson’s situation the only one not correctible under Rule 52(b), when an intervening decision changes the law. A defendant could receive the benefit of the Rule, despite the lack of objection, when the district judge is “plainly correct at the time,” and also when the judge is “plainly incorrect at the time” (emphasis in the original). “Why should [the rule] not also cover cases in the middle?” asked the Court. Seeing a negative result as “highly, and unfairly, anomalous” and finding “no practical [reason] for making this distinction,” the Court concluded that Henderson’s error, too, may be corrected under Rule 52(b).
This decision, once made, is a bit of a yawner. It is only the interpretation of a Rule, not the Constitution, and it addresses a relatively small number of cases. It also responds to the general sense of fairness that non-legal-technicians likely share – and Congress can amend it if it thinks it significant. The only amusement in Justice Breyer’s typically exhaustive thirteen-page opinion is that he managed to write in an entertaining point he made repeatedly at oral argument: that it seems unrealistic to believe that any lawyer would consciously choose not to object when the law is unsettled, hoping that an intervening Supreme Court decision, like a bolt from the blue, will recuse him (or her) from error on appeal. “[L]ike the unicorn, he [such a lawyer] finds his home in the imagination, not the courtroom.”
The Court also made clear that correcting plain errors on appeal has nothing to do with criticizing district judges: “plain-error review is not a grading system for trial judges,” but rather an opportunity to “meet the demands of fairness and judicial integrity.”
Given the relative insignificance of the decision, it is perhaps a bit surprising that Justice Scalia saw the need to write a ten-page dissent. He (joined by Justices Thomas and Alito) criticizes the majority for “misconceiving our task,” which is “not the exalted philosophical one of deciding where justice lies.” Justice Scalia finds the text of Rule 52(b) “entirely clear,” because the purpose of Rule 52 (and also Rule 51) is to encourage objections that “should have been made.” When the law is unsettled, so that there is no futility barrier to objecting as there was in Johnson, Rule 52(b) should be interpreted to require objection, or forfeit the error. A “time of appeal” rule, says the dissent, “promotes both . . . fairnesss and efficiency,” because only a defendant who is “remiss” for not raising an objection when it might have done some good will be barred on appeal. Criticizing what the dissent sees as “a touching faith in the good sportsmanship of defense counsel” and its “Pollyannaish rejoinder” to the specter of reversed convictions and sentences where counsel has failed to assist the trial judge, Justice Scalia really pours on the stylistic heat.
My review of the Supreme Court’s criminal cases from last Term shows that no two Justices appear to disagree more, on criminal law matters, than Justices Breyer and Scalia. Not just ideologically, but stylistically, they clearly seem to drive each other nuts. At oral argument Justice Scalia prefers short laser-like questions, while Justice Breyer tends to “think out loud” and at length. In opinions, Justice Breyer often invokes fairness and pragmatic policy concerns, while Justice Scalia professes merely to honor the “mundane and lawyerly task” of interpreting text. Their competing Henderson opinions provide a good example – twenty-three pages of ink spilled on a short Rule as applied to a narrow band of cases. The differences in the decisions here, I would suggest, goes a good bit deeper than the twenty words of this one-sentence Rule.