United States v. Tainewasher

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-3634

D.C. No.

Plaintiff - Appellee,

1:21-cr-02029-

SAB-1

v.

SAMANTHA MARIE

TAINEWASHER, AKA Samantha OPINION

Marie Howard,

Defendant - Appellant.

Appeal from the United States District Court

for the Eastern District of Washington

Stanley Allen Bastian, District Judge, Presiding

Argued and Submitted August 15, 2025

Anchorage, Alaska

Filed October 10, 2025

Before: Susan P. Graber, John B. Owens, and Ryan D.

Nelson, Circuit Judges.

Per Curiam Opinion;

Dissent by Judge Graber

2 USA V. TAINEWASHER

SUMMARY *

Criminal Law

The panel affirmed Samantha Marie Tainewasher’s

conviction for illegal use of a communication facility in the

commission of a drug felony in violation of 21 U.S.C.

§ 843(b).

Tainewasher contended that the district court plainly

erred by failing to instruct the jury that, to convict her of

facilitation, it must find that the underlying drug felony was

actually committed. Assuming the district court’s

instruction was obvious error by not requiring that finding,

the panel concluded it did not affect Tainewasher’s

substantial rights, as there was no reasonable probability that

it affected the outcome of the district court proceedings,

where Tainewasher’s Facebook messages clearly indicate

that a drug felony was committed, and the defense did not

dispute the underlying evidence nor ask the jury to acquit her

of the communication-facility charge at trial.

Tainewasher also argued that the district court plainly

erred by failing to give the jury a specific unanimity

instruction regarding the drug felony she allegedly

facilitated. Given the simplicity of the evidence, argument,

and instructions related to the communication-facility

charge, the panel concluded that Tainewasher failed to show

that any error affected her substantial rights.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. TAINEWASHER 3

The panel affirmed Tainewasher’s involuntary

manslaughter conviction in a concurrently filed

memorandum disposition.

Judge Graber dissented from the opinion. Disagreeing

with the opinion’s conclusion that Tainewasher failed to

show a reasonable likelihood of a different outcome, she

wrote that in light of the incredibly flimsy evidence

submitted by the government, a jury that was properly

instructed—that the government must prove that an

underlying drug offense occurred—would almost certainly

harbor a reasonable doubt as to whether a completed drug

offense occurred. She also wrote that by choosing merely to

assume the first two prongs of the plain-error test, the

opinion fails to clarify and correct Ninth Circuit law on

important legal issues as to which precedential guidance is

needed.

COUNSEL

Michael J. Ellis (argued) and Timothy J. Ohms, Assistant

United States Attorneys; Richard R. Barker, Acting United

States Attorney; Office of the United States Attorney, United

States Department of Justice, Spokane, Washington; for

Plaintiff-Appellee.

W. Miles Pope (argued), Goddard Pope PLLC, Boise, Idaho,

for Defendant-Appellant.

4 USA V. TAINEWASHER

OPINION

PER CURIAM:

Samantha Marie Tainewasher appeals from her

conviction for illegal use of a communication facility in the

commission of a drug felony in violation of 21 U.S.C.

§ 843(b). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

I. BACKGROUND

Via Facebook, Tainewasher chatted with customers

about selling controlled substances. For example, on April

23, 2020, Tainewasher received a Facebook message from

“Trigger Tre” stating, “I really need em ill get em off yu

fasure,” and asking, “Do yu have em or not[?]” Tainewasher

replied, “No I don’t . . . I was selling them for someone I will

have more later.” A few days later, on April 29, 2020,

Tainewasher messaged Trigger Tre that she “got pills.”

Trigger Tre replied, “Rn?” (meaning right now), to which

Tainewasher replied, “Yea.”

On April 27, 2020, Tainewasher received a message

from another individual asking if she “ha[d] any blk” (a term

for heroin). She replied that she could “get you some,”

which she would “[t]rade for shards” (a term for

methamphetamine). On April 28, 2020, Tainewasher wrote

back that, “I have dark” (a term for heroin), and the two

messaged about the logistics of a meet-up.

And on June 9, 2020, Tainewasher received a message

from yet another individual, who asked, “U know where I

could get a ball of shards[?]” (a term for 3.5 grams of

methamphetamine). Tainewasher replied, “Yea I’ll have it

USA V. TAINEWASHER 5

in a bit.” Approximately one hour later, Tainewasher

responded, “I have it,” and “[o]n my way.”

A grand jury charged Tainewasher with (1) using a

communication facility in the commission of a drug felony

in violation of 21 U.S.C. § 843(b), (d)(1)–(2); and

(2) involuntary manslaughter in violation of 18 U.S.C.

§§ 1112, 1153 for her child’s fentanyl overdose.

The trial focused primarily on her child’s death. 1 After

the close of evidence, which included the text messages

quoted supra and narcotics evidence from her home, the trial

court instructed the jury that they could convict Tainewasher

if the government proved:

That on or about between April 23, 2020, and

June 9, 2020, in the Eastern District of

Washington, the defendant knowingly or

intentionally used a communication facility,

Facebook Messenger, to facilitate the

possession with intent to distribute,

distribution of, and attempted distribution of

. . . fentanyl and/or . . . heroin and/or . . .

methamphetamine.

The jury instruction did not require the prosecution to prove

the actual commission of the underlying crime facilitated by

the defendant’s communication, as other courts have

required. 2 The defense never objected to this instruction,

1

We affirm Tainewasher’s involuntary manslaughter conviction in a

concurrently filed memorandum disposition.

2

See United States v. Powell, 469 U.S. 57, 60 n.4 (1984) (“The lower

courts seem to agree that the Government must prove, as an element of

a § 843(b) offense, the commission of the felony the accused is charged

6 USA V. TAINEWASHER

and the jury returned a guilty verdict on both counts after

less than two hours of deliberation. The trial court sentenced

Tainewasher to time served and three years’ supervised

release. Tainewasher timely appealed.

II. DISCUSSION

A. Plain Error

When a defendant raises an issue for the first time on

appeal, we may review only for plain error. See Fed. R.

Crim. P. 52(b); United States v. Nobari, 574 F.3d 1065, 1080

(9th Cir. 2009); United States v. Olano, 507 U.S. 725, 730–

36 (1993). The plain error standard “demand[s] strenuous

exertion to get relief for unpreserved error.” United States

v. Dominguez Benitez, 542 U.S. 74, 82 (2004). The

defendant bears the burden of showing plain error. Id.; see

also United States v. Vonn, 535 U.S. 55, 63 (2002).

The plain error doctrine seeks to prevent a miscarriage

of justice or preserve the integrity and the reputation of the

judicial process. See Olano, 507 U.S. at 736; see also United

States v. Lopez, 4 F.4th 706, 719 (9th Cir. 2021). Under the

plain error standard, a defendant is not entitled to relief

unless there has been (1) error, (2) that was plain, (3) that

affected substantial rights, and (4) that seriously affected the

fairness, integrity, or public reputation of the judicial

with facilitating.” (tracking cases from the Tenth and Eleventh Circuits)

(reversing the Ninth Circuit on other grounds)); see also United States v.

Wheat, 988 F.3d 299, 312–13 (6th Cir. 2021) (also interpreting § 843(b)

to require the government to prove the commission of the underlying

offense); United States v. Castro-Avalos, 105 F. App’x 205, 206 (9th Cir.

2004) (unpublished) (“[T]he commission of the facilitated offense is ‘a

fact necessary to constitute the crime’ of facilitation under § 843(b)”

(citation omitted)).

USA V. TAINEWASHER 7

proceedings. See United States v. Depue, 912 F.3d 1227,

1232 (9th Cir. 2019) (en banc).

B. Any Instructional Error Did Not Affect

Tainewasher’s Substantial Rights

Tainewasher raises two challenges to the district court’s

communication facility instruction. Because her trial

counsel never objected to this instruction, the parties agree

that we review for plain error.

Citing cases like United States v. Powell, 469 U.S. 57,

60 n.4 (1984), Tainewasher first contends that the district

court plainly erred by failing to instruct the jury that, to

convict her of facilitation, it must find that the underlying

drug felony was actually committed. Assuming the district

court’s instruction was obvious error by not requiring that

finding, we conclude it did not “affect [Tainewasher’s]

substantial rights, meaning . . . there was [no] reasonable

probability that it affected the outcome of the district court

proceedings.” United States v. Conti, 804 F.3d 977, 981 (9th

Cir. 2015) (internal quotation marks and citation omitted).

Tainewasher’s Facebook messages clearly indicate that a

drug felony was committed, and the defense did not dispute

the underlying evidence nor ask the jury to acquit her of the

communication-facility charge at trial. See id. at 982

(considering “whether the defendant contested the omitted

element and ‘raised evidence sufficient to support a contrary

finding’” to hold that instructional error did not affect

substantial rights (citation omitted)); cf. United States v.

Cotton, 535 U.S. 625, 633 (2002) (affirming despite plain

error in indictment because evidence of omitted fact was

“overwhelming and essentially uncontroverted” (citation

and internal quotation marks omitted)).

8 USA V. TAINEWASHER

Tainewasher also argues that the district court plainly

erred by failing to give the jury a specific unanimity

instruction regarding the drug felony she allegedly

facilitated. “[A] specific unanimity instruction is required if

there is a genuine possibility of jury confusion or a

possibility that a conviction may occur as the result of

different jurors concluding that the defendant committed

different acts.” United States v. Lapier, 796 F.3d 1090, 1096

(9th Cir. 2015) (citation and internal quotation marks

omitted). Courts look at the text of the indictment, the clarity

of the government’s argument, the complexity of the

evidence, and the intelligibility of the jury instructions to

assess the “risk that different jurors voted to convict on the

basis of different facts establishing different offenses.” Id.

at 1097. Given the simplicity of the evidence, argument, and

instructions related to the communication-facility charge in

this case, Tainewasher fails to show that any error affected

her substantial rights. See Conti, 804 F.3d at 981–82.

AFFIRMED.

GRABER, Circuit Judge, dissenting from the opinion:

I respectfully dissent from the opinion. 1

In order to prove that Defendant was guilty of violating

21 U.S.C. § 843(b), which criminalizes the use of a

“communication facility in committing or in causing or

facilitating the commission” of a drug felony, the

government must prove that an underlying drug offense

1

I concur in the separate disposition, which affirms Defendant’s

manslaughter conviction.

USA V. TAINEWASHER 9

occurred. The jury’s instructions here did not require that

finding, instead allowing the jury to convict Defendant even

if no drug offense occurred. The opinion nevertheless

affirms on the ground that Defendant failed to show a

reasonable likelihood of a different outcome. I strongly

disagree with that conclusion. The government submitted

nothing more than a few informal, jargon-filled Facebook

chat messages: no drug evidence, no witness testimony, no

tracking information—nothing other than the messages

quoted in the opinion. In light of that incredibly flimsy

evidence, a properly instructed jury almost certainly would

harbor a reasonable doubt as to whether a completed drug

offense in fact occurred.

Additionally, the opinion has chosen merely to assume

the first two prongs of the plain-error test. By doing so, the

opinion fails to clarify and correct Ninth Circuit law on

important legal issues that arise often. Parties in future

cases, the district courts, and we deserve precedential

guidance. Either in this case or in a future appropriate case,

we should convene en banc in order to provide that guidance.

A. The Instruction and Our Standard of Review.

The facilitation statute provides:

It shall be unlawful for any person knowingly

or intentionally to use any communication

facility in committing or in causing or

facilitating the commission of any act or acts

10 USA V. TAINEWASHER

constituting a felony under any provision of

this subchapter or subchapter II.

21 U.S.C. § 843(b). The district court instructed the jury

that, to convict, it must find beyond a reasonable doubt:

That on or about between April 23, 2020,

and June 9, 2020, in the Eastern District of

Washington, the defendant knowingly or

intentionally used a communication facility,

Facebook Messenger, to facilitate the

possession with intent to distribute,

distribution of, and attempted distribution of

a mixture or substance containing a

detectable amount of fentanyl and/or a

mixture or substance containing a detectable

amount of heroin and/or a mixture or

substance containing a detectable amount of

methamphetamine.

That instruction did not require the jury to find that an

underlying drug offense was committed. 2 Defendant did not

object, so we review for plain error. United States v. Nobari,

574 F.3d 1065, 1080 (9th Cir. 2009); Fed. R. Crim. P. 52(b).

“Plain error is (1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Depue, 912 F.3d 1227,

1232 (9th Cir. 2019) (en banc) (citations and internal

quotation marks omitted); see generally United States v.

Olano, 507 U.S. 725, 734–35 (1993). If those elements are

met, we may reverse if the error seriously affected the

2

The omission of this element was no accident. Both the government’s

lawyer and the district court concluded that the statute did not require

proof of a completed drug offense.

USA V. TAINEWASHER 11

fairness, integrity, or public reputation of judicial

proceedings. Depue, 912 F.3d at 1232.

B. The Instruction Was Erroneous.

The statutory text is clear that an underlying drug offense

must have been committed. See 21 U.S.C. § 843(b) (“It shall

be unlawful for any person knowingly or intentionally to use

any communication facility in committing or in causing or

facilitating the commission of any act or acts constituting a

felony under any provision of this subchapter or subchapter

II.” (emphasis added)). One cannot facilitate the

commission of a crime if no crime occurred. No fewer than

eight circuit courts have so held in unmistakable terms in

published opinions. See United States v. Wheat, 988 F.3d

299, 312 (6th Cir. 2021) (“Section 843(b)’s

text requires . . . that the defendant or another person

actually committed the underlying drug felony that serves as

the basis for the communication-facility charge.”); United

States v. Wilbourn, 799 F.3d 900, 910 (7th Cir. 2015)

(“Proof of an underlying narcotics offense is an element

under § 843(b) and must be proven beyond a reasonable

doubt.”); United States v. Orihuela, 320 F.3d 1302, 1304

(10th Cir. 2003) (per curiam) (“[O]ne of the elements of an

offense under § 843(b) is the commission by someone of an

underlying controlled substance offense.”); United States v.

Escobar-de Jesus, 187 F.3d 148, 163 (1st Cir. 1999) (“[T]o

obtain a conviction on a charge of telephone facilitation

pursuant to section 843, the government must prove

commission of the underlying offense.”); United States v.

Mankins, 135 F.3d 946, 949 (5th Cir. 1998) (“A conviction

under § 843(b) requires . . . proof of the underlying drug

offense that the defendant is accused of facilitating, even

though it is not separately charged.”); United States v.

Iennaco, 893 F.2d 394, 396 (D.C. Cir. 1990) (“[T]o obtain a

12 USA V. TAINEWASHER

conviction on a charge of telephone facilitation, the

government must prove actual commission (by the

defendant or another person) of the alleged underlying

offense.”); United States v. Johnstone, 856 F.2d 539, 543 (3d

Cir. 1988) (“The occurrence of the underlying drug felony is

a fact necessary to finding a violation of § 843(b).”); United

States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987) (“The

elements of proof of a § 843(b) telephone count [include] . . .

[p]roof of the underlying offense.”). No published case is to

the contrary.

In addition, one of our decisions implicitly decided the

issue. In United States v. Powell, 708 F.2d 455 (9th Cir.

1983), a jury convicted the defendant of three counts under

§ 843(b) but acquitted her of the underlying drug offenses.

Id. at 456. We reversed the convictions, under then-

applicable law, because those findings by the jury were

internally inconsistent. Id. That holding made sense only if

the statute required proof of the underlying drug offenses.

The Supreme Court reversed our decision, holding that we

had misapplied the “inconsistent verdicts” rule

(inconsistency now does not result in reversal). United

States v. Powell, 469 U.S. 57 (1984). But the Court did not

disturb our implicit holding that § 843(b) requires proof of

the underlying drug offense. To the contrary, the Court cited

cases from two other circuits and stated: “The lower courts

seem to agree that the Government must prove, as an

element of a § 843(b) offense, the commission of the felony

that the accused is charged with facilitating.” Id. at 60 n.4.

The Court premised its analysis on that assumption.

As a formal matter, the Supreme Court’s statement, and

our implicit holding, may not bind us. But we should

expressly join the other circuits and make explicit what was

implicit in Powell: a conviction on a charge of facilitation

USA V. TAINEWASHER 13

under § 843(b) requires proof of the underlying drug offense

that the defendant is charged with facilitating, whether or not

that underlying offense is charged separately. The district

court erred by omitting that required predicate.

C. The Error Was Plain.

To qualify as plain, “the legal error must be clear or

obvious, rather than subject to reasonable dispute.” Puckett

v. United States, 556 U.S. 129, 135 (2009). We assess

plainness at the time of appeal, not the time of the error.

Henderson v. United States, 568 U.S. 266, 279 (2013).

1. We Consider All Legal Sources in Assessing Plain

Error.

If a controlling precedent by the Supreme Court or by us

is on point, then the error is plain. United States v. Ameline,

409 F.3d 1073, 1078 (9th Cir. 2006) (en banc). But—

contrary to the government’s argument here—we do not stop

our analysis if no binding precedent is on point. Instead, we

look to other considerations to determine whether the issue

is “subject to reasonable dispute.” Puckett, 556 U.S. at 135.

“We must consider whether the available authorities provide

a clear answer to the question before us.” United States v.

Thompson, 82 F.3d 849, 855 (9th Cir. 1996).

For example, in Thompson, we noted that “[t]here is no

controlling Supreme Court precedent” and that “[o]ur court

ha[d] not addressed” the relevant evidentiary issue. Id. at

855. But we did not stop there. We continued our analysis,

assessing whether decisions by other circuits provided a

clear consensus on the issue. Id. We held that any error was

not plain “[b]ecause of the circuit split, the lack of

controlling authority, and the fact that there is at least some

14 USA V. TAINEWASHER

room for doubt about the outcome of this issue.” Id. at 856

(footnote omitted).

Several years later, in United States v. Kyle, 734 F.3d

956 (9th Cir. 2013), we assessed whether a district judge’s

involvement in plea negotiations was erroneous and whether

any error was plain. Id. at 963–66. We first distinguished

one of our own precedents, United States v. Frank, 36 F.3d

898 (9th Cir.1994), in which we had held that no reversible

error occurred. Kyle, 734 F.3d at 964. We then looked to

“[t]wo cases from our sister circuits”—United States v.

Crowell, 60 F.3d 199 (5th Cir. 1995), and United States v.

Kraus, 137 F.3d 447 (7th Cir. 1998) —which, in our view,

“were decided on facts more similar to” the facts at issue in

Kyle. Kyle, 734 F.3d at 965. We concluded that,

“[t]ogether, Frank, Crowell, and Kraus” illustrated the

relevant legal principle that the district judge had violated.

Id. (bold emphasis added). We held that the error was plain

on the theory that an error can be plain “even though there

was no directly controlling authority, where ‘a confluence of

sister circuits have answered the question’ and the circuit

‘has addressed closely related issues.’” Id. at 966 (quoting

United States v. Hope, 545 F.3d 293, 297 (5th Cir.2008))

(brackets and ellipsis omitted).

In short, in assessing whether an error is “plain,” we must

consider the views of other circuits even if no binding

precedent is on point. Our objective is to determine whether

the issue at hand is “subject to reasonable dispute,” Puckett,

556 U.S. at 135, not to determine simply whether the issue

is controlled by binding precedent. And, as the cases above

illustrate, how other circuits have decided the issue can

inform our analysis as to the existence—or not—of a

reasonable dispute.

USA V. TAINEWASHER 15

This approach to plain-error review comports with how

we determine clarity in other contexts. For example, when

analyzing petitions for mandamus, we look for the presence

of “clear error.” In re Mersho, 6 F.4th 891, 898 (9th Cir.

2021). We have held that a ruling is not clearly erroneous if

there is no prior Ninth Circuit authority “or where the issue

in question has not yet been addressed by any circuit court

in a published opinion.” In re Grice, 974 F.3d 950, 955 (9th

Cir. 2020). Similarly, in the context of qualified immunity,

we ask whether a defendant violated “clearly established”

law. Shooter v. Arizona, 4 F.4th 955, 961 (9th Cir. 2021).

Even in the “absence of ‘binding precedent,’ we ‘may look

to decisions from the other circuits’ to determine whether

they reflect a ‘consensus of courts’ that can be said to clearly

establish the relevant law.’” Id. at 963 (quoting Martinez v.

City of Clovis, 943 F.3d 1260, 1276 (9th Cir. 2019)).

This approach to plain-error review also comports with

how at least seven other circuits analyze the question of plain

error. See United States v. Romero, 132 F.4th 1208, 1218

(10th Cir. 2025) (“An error is plain if it is clear or obvious

under current, well-settled law, in that there is precedent

directly on point from the Supreme Court or the Tenth

Circuit, or there is a consensus in the other circuits.” (citation

and internal quotation marks omitted)), petition for cert.

filed, No. 24-7520 (U.S. June 24, 2025); United States v.

Scott, 14 F.4th 190, 198 (3d Cir. 2021) (“[T]he lack of in-

circuit case law on the specific question does not doom a

finding of plain error, where there are out-of-circuit

decisions sufficiently on-point. It is sufficient that the great

weight of persuasive authority supports a contrary result.”

(cleaned up)); United States v. Green, 996 F.3d 176, 185 (4th

Cir. 2021) (“[I]t is possible for a district court to commit

plain error even where, as here, there is no controlling

16 USA V. TAINEWASHER

authority from the Supreme Court or Fourth Circuit. And

this is precisely [such a case]: one in which ‘our sister

circuits have uniformly taken a position on an issue that has

never been squarely presented to this Court.’” (citations

omitted)); United States v. Vasquez, 899 F.3d 363, 379 (5th

Cir. 2018) (“Of course, a robust consensus among the courts

of appeals can support a finding of plain error.”); United

States v. Seals, 813 F.3d 1038, 1047–48 (7th Cir. 2016)

(“The government is quick to point out that we ‘rarely find

plain error on a matter of first impression’ since such matters

are ‘unlikely to be that obvious’ even when ‘other circuits

have addressed this issue.’ But the fact that this court

‘rarely’ finds plain error in such instances does not mean that

such a conclusion is never warranted. And the

circumstances of this case [including ‘widespread agreement

among our sister circuits’] justify deviating from the general

rule.” (ellipsis omitted)); United States v. Brown, 352 F.3d

654, 664 (2d Cir. 2003) (“[I]t is not always necessary for the

party alleging plain error to cite a circuit or Supreme Court

precedent precisely on point. Plain error review is

considerably more flexible.”); United States v. Smith, 232

F.3d 236, 242 (D.C. Cir. 2000) (holding that, although “this

circuit has not yet addressed [a specific legal issue,] . . . this

fact, alone, is not dispositive of the plain error issue,” and

considering, among other factors, the rulings by “our sister

circuits”).

I acknowledge that a few decisions by some circuit

courts suggest that binding precedent is required for an error

to be plain. United States v. Grullon, 996 F.3d 21, 32–33

(1st Cir. 2021); United States v. Ruzicka, 988 F.3d 997, 1009

(8th Cir. 2021); United States v. Al-Maliki, 787 F.3d 784,

794 (6th Cir. 2015); United States v. Lejarde–Rada, 319 F.3d

1288, 1291 (11th Cir. 2003) (per curiam). But other

USA V. TAINEWASHER 17

decisions by those same circuits suggest a broader rule,

consistent with the way most circuits assess plain error,

which includes looking to decisions by other circuits. See,

e.g., United States v. Bobal, 981 F.3d 971, 975 (11th Cir.

2020) (“An error cannot be plain if neither the Supreme

Court nor this Court has ever resolved the issue, and other

circuits are split on it.” (emphasis added) (brackets and

internal quotation marks omitted)); United States v. Merritt,

934 F.3d 809, 811–12 (8th Cir. 2019) (considering, after

concluding that no binding precedent exists and before

concluding that no plain error occurred, what other circuits

have ruled); United States v. Valdivia, 680 F.3d 33, 42 (1st

Cir. 2012) (looking to whether there is a “consensus among

the circuits on the issue” and citing other First Circuit cases

that have considered the views of other circuits in assessing

plain error); United States v. Lanham, 617 F.3d 873, 884 (6th

Cir. 2010) (rejecting a finding of plain error because of a

circuit split on the issue). Moreover, I have found no

decision—in any circuit—holding that an error was not plain

in the face of uniform decisions by other circuits establishing

an error. In sum, we must look to all available sources and

ask whether the pertinent issue is “subject to reasonable

dispute.” Puckett, 556 U.S. at 135.

2. The Error Here Was Plain.

Four considerations, taken together, demonstrate that the

error here was plain, that is, that the issue is not subject to

reasonable dispute. First, as described above, eight other

circuits easily concluded that the statute requires proof of a

completed crime. Those decisions amount to what the Fifth

Circuit calls a “robust consensus” allowing that court, and

others, to find plain error. Vasquez, 899 F.3d at 379.

Second, in Powell, 708 F.2d 455, we thought that the

requirement of a completed crime was so obvious that we

18 USA V. TAINEWASHER

based our opinion on the requirement without even

considering it necessary to explain why. Third, and

relatedly, the text and logic of the statute reasonably allow

only one interpretation: Congress could not have intended

to impose criminal liability for helping to bring about actions

falling short of a completed crime. See United States v.

Irons, 31 F.4th 702, 713 (9th Cir. 2022) (holding that an error

was plain, even though no binding precedent was on point,

because “our textual analysis is sufficiently one-sided, and

sufficiently dictates the answer, that the district court’s error

is ‘plain’”). Fourth, the government here does not

advance—just as the government in Powell apparently did

not advance—any argument to the contrary. Nor can I

perceive a reasonable argument to the contrary. Considering

all of those reasons, I conclude that the error here was plain.

3. We Should Discontinue an Outdated Formulation of

the Test.

In some cases, including United States v. Turman, 122

F.3d 1167 (9th Cir. 1997), we described plain error as “error

that is so clear-cut, so obvious, a competent district judge

should be able to avoid it without benefit of objection.” Id.

at 1170. In Henderson, 568 U.S. at 279, the Supreme Court

expressly rejected that formulation. Questioning whether

the district judge should have caught the error asks the

question at the wrong time—at the time of the error rather

than at the time of appeal. Id. Moreover, as the Court

explained, the purpose of Rule 52(b) of the Federal Rules of

Criminal Procedure has nothing to do with measuring the

competency of district judges: “[P]lain-error review is not a

grading system for trial judges. It has broader purposes,

including in part allowing courts of appeals better to identify

those instances in which the application of a new rule of law

to cases on appeal will meet the demands of fairness and

USA V. TAINEWASHER 19

judicial integrity.” Id. at 278. Rule 52(b) seeks a fair and

just result, striking a balance between, on the one hand, the

ordinary judicial-efficiency principle that arguments not

raised initially may not be raised on appeal and, on the other

hand, the liberty interests of a criminal defendant.

Our old formulation of the test, as well as its variants, is

thus doubly wrong: asking a question about the wrong time

(at the time of trial rather than at the time of appeal) and

about the wrong subject matter (the district judge’s

perspicacity rather than the obviousness of the error).

Regrettably, some of our cases have continued to use such

formulations even after Henderson. E.g., United States v.

Hackett, 123 F.4th 1005, 1011–12 (9th Cir. 2024); United

States v. Rusnak, 981 F.3d 697, 705 (9th Cir. 2020); United

States v. Bain, 925 F.3d 1172, 1178 (9th Cir. 2019). The en

banc court should overrule our continued application of the

antiquated formulation that the Supreme Court expressly

rejected. The proper inquiry is simply whether, at the time

of appeal, an error is “clear” or instead is “subject to

reasonable dispute.” Puckett, 556 U.S. at 135.

D. The Instructional Error Was Prejudicial.

The instructional error likely affected the outcome of the

proceeding. See Olano, 507 U.S. at 734–36 (stating this

criterion). The evidence that a completed drug offense

occurred was extremely weak. 3 There was no evidence of

drugs or cash at the pertinent time; 4 there was no testimony

3

Recall that the prosecutor insisted, and the district court agreed, that

the government need not prove that a completed drug offense occurred.

See supra note 2.

4

The record contains evidence of small amounts of drugs located in

Defendant’s home around the time of the toddler’s death. But the

Facebook messages were sent one to three months later. No evidence

20 USA V. TAINEWASHER

by a witness or a police officer; there was no evidence

tracking Defendant’s vehicle; there was no surveillance

video; there was no confession and no testimony by

Defendant or any of the people who sent messages on

Facebook. The only evidence is a short series of often-

cryptic messages, sent via Facebook, one to three months

after the death of the toddler. A reasonable, properly

instructed jury almost certainly would conclude that the

government failed to carry its burden to prove a completed

crime beyond a reasonable doubt.

Moreover, the lack of a unanimity instruction

exacerbated the main instructional error. Even assuming

that some jurors might have concluded that Defendant

committed an underlying drug offense, they might not have

agreed on which conduct and which offense among the three

prosecution theories (distribution of drugs, attempted

distribution of drugs, and possession with intent to distribute

drugs). Indeed, neither the government nor the opinion

identifies which completed drug offense occurred. And

neither the government nor the opinion identifies which

Facebook messages were so overwhelmingly convincing

that a reasonable jury necessarily would have found

Defendant guilty beyond a reasonable doubt.

Notably, even if one credits the opinion’s interpretation

of the messages and takes those interpretations at face value,

none of the messages shows a drug transaction actually

occurring. That is, no distribution of drugs is shown. Nor

do the messages show that Defendant took enough actions to

suggests that the drugs involved in the toddler’s death also were involved

in the purported later crimes. The opinion’s oblique reference to

“narcotics evidence from [Defendant’s] home” is misleading in this

regard. Op. at 5.

USA V. TAINEWASHER 21

constitute a criminal attempt at distribution. Finally, the

messages themselves cannot be said to aid in Defendant’s

purported possession with intent to distribute; she obtained

drugs (if, in fact, she did) wholly apart from the messages.

At a minimum, there is a reasonable likelihood that a jury

would conclude that the terse, cryptic Facebook messages

failed to establish proof beyond a reasonable doubt.

E. Reversal Is Warranted.

The error seriously affected the fairness, integrity, or

public reputation of judicial proceedings. The government

does not dispute this step of the analysis, likely because the

impetus for this case was the death of Defendant’s toddler,

not the alleged small-time drug transaction months later.

Indeed, the government originally charged Defendant only

with manslaughter. It was only after the first trial ended in a

mistrial that the government added the drug charge in a

superseding indictment. The second jury convicted

Defendant of manslaughter, and we unanimously affirm that

conviction. But, as the government concedes, the drug

conviction will carry collateral consequences for Defendant,

including affecting her ability to receive certain government

benefits. The error in the jury instructions, which allowed

the jury to convict without finding that a drug offense even

occurred, seriously affected the fairness, integrity, and

public reputation of judicial proceedings.

Accordingly, I dissent from the opinion.