# United States v. Asher, Robert B.

> Court of Appeals for the Third Circuit · July 20, 1988 · 854 F.2d 1483

URL: https://www.frixlaw.com/law-library/cases/9478063

## Case

- **Full name:** UNITED STATES of America v. ASHER, Robert B., Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** July 20, 1988
- **Citations:** 854 F.2d 1483; 26 Fed. R. Serv. 361; 1988 U.S. App. LEXIS 10049
- **Precedential status:** Published
- **Opinion:** Concurrence by Sloviter
- **Judges:** Higginbotham, Sloviter, Garth
- **Cited by:** 67 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478063

## How later opinions describe it (automated extraction)

- finding the jury could not have found defendant guilty of mail fraud without simultaneously finding the state was deprived of money, a fact not found by the jury, but required by law
- affirming ]pre-McNally conviction of mail fraud where state official accepted a bribe in exchange for awarding a contract to an organization despite a lower bid to perform the same services; the contract itself deprived the state of a tangible savings
- affirming pre-McNally conviction of mail fraud where state official accepted a bribe in exchange for awarding a contract to an organization despite a lower bid to perform the same services; the contract itself deprived the state of a tangible savings

## Opinion text

SLOVITER, Circuit Judge,
concurring.
I concur fully in Judge Garth’s opinion. I write separately only because the dissent states that this opinion cannot be reconciled with this court’s recent opinion in United States v. Boyce, 849 F.2d 833 (3d Cir.1988), and an opinion that I authored for the court in Holland v. Attorney General of New Jersey, 777 F.2d 150 (3d Cir.1985), which *1501 the dissent graciously but erroneously characterizes as “seminal”.
Whether a trial court’s error is harmless is a fact-specific judgment. Judge Garth has fully explained why the majority has concluded that the admission of evidence that does not satisfy Fed.R.Evid. 801(d)(1)(B) was harmless in this case. Our conclusion in this respect is no more inconsistent with our precedent than is Judge Higginbotham’s contrary conclusion inconsistent with opinions which he authored that concluded that error was harmless, see, e.g., United States v. Johnson, 816 F.2d 918, 923 (3d Cir.1987); United States v. Grayson, 795 F.2d 278, 288-90 (3d Cir.1986), ce rt. denied, 479 U.S. 1054 , 107 S.Ct. 927 , 93 L.Ed.2d 978 (1987), or opinions in which he joined that so held, see, e.g., Government of the Virgin Islands v. George, 680 F.2d 13 , 15 n. 3 (3d Cir.1982); United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 207 (3d Cir.1970), cert. denied, 401 U.S. 948 , 91 S.Ct. 929 , 28 L.Ed.2d 231 (1971).
The Supreme Court “has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.” United States v. Hasting, 461 U.S. 499, 509 , 103 S.Ct. 1974, 1980 , 76 L.Ed.2d 96 (1983). Even when there is error implicating the Constitution, “if the defendant had counsel and was tried by an impartial adjudicator there is a strong presumption that any other errors that may have occurred are subject to harmless error analysis.... Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101, 3106-07 , 92 L.Ed.2d 460 (1986). As Judge Higginbotham pointed out in Grayson , “[sjince the challenged [error] affected no possible constitutional right, we are not required to find that any error ... was harmless beyond a reasonable doubt.” 795 F.2d at 290 .
As far as I know, no member of this court has been “reticent to recognize prejudicial error.” Dissenting op. at 1501. Moreover, the Supreme Court’s admonitions prevent us from “routinely” so finding. Id. This court has conscientiously applied the harmless error doctrine under the facts of each case, and I am confident will continue to do so irrespective of the particular defendant or the crime charged.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478063. Public record. Not legal advice.