holding that where the error is a failure to make requisite findings, plain error requires a showing that it is “reasonably likely the district court would have assigned [defendant] a ... lower base offense level if it had made the requisite findings”
How later courts described this case
- holding that where the error is a failure to make requisite findings, plain error requires a showing that it is “reasonably likely the district court would have assigned [defendant] a ... lower base offense level if it had made the requisite findings”
- explaining holding in Brawner that expert testimony about an abnormal mental condition is admissible when specific-intent crime is charged if “it is relevant to negate, or establish, the specific mental condition that is an element of the crime”
- concluding that a variance is grounds for reversal only if the defendant shows he was substantially prejudiced by, for example, “the spillover effect” of evidence from other conspiracies or activities to which he was not a party
- holding that an erroneous instruction that conspiracy is a "general intent” crime was harmless error since the instruction clearly informed the jury that a purposeful state of mind was required
Written by the judges who cited it.
The opinion
STEPHEN F. WILLIAMS, Circuit Judge,
dissenting in part:
I concur in all sections of the per curiam opinion except Part VIII.D.1. While I agree with the majority that the district court may have abused its discretion in denying appellant Columbus Daniels representation by lawyer Kenneth Mundy in the Group III murder trial, I would not remand the case for further proceedings. Because Mundy died shortly after oral argument in this case, there is no way Daniels could ever receive his representation on a retrial, should one be ordered. I would therefore hold his appeal moot.
Any relief we give a litigant must fit the error that was made. Daniels claims only *737 that he was erroneously denied Mundy’s representation; he does not allege that he had other paid counsel of choice waiting in the wings that he was barred from using, that he ever sought such an alternative, or that the district court forbade him from making other arrangements for paid representation. (Indeed, the fact that the court appointed counsel for Daniels suggests that no one involved ever even considered the possibility of paid counsel other than Mundy.) Nor does Daniels suggest that the trial counsel he actually received was incompetent. Cf. Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The ideal relief for the one error claimed would be to remand Daniels’s case for retrial with Mundy as counsel. This has become impossible.
The majority’s solution, a vacation of the conviction and a retrial, in no way fits this error. On any retrial, there are only two possibilities for Daniels’s representation. First, Daniels may be as unable as he was before to find someone who will represent him for what he could pay, so that he might again receive appointed counsel. In that case, the retrial would be an exact duplicate of the first one in all matters relevant to this issue. On the other hand, Daniels may now be able to arrange for paid counsel. But Daniels never claimed he was forbidden from using paid counsel other than Mundy, and a retrial under these circumstances would be responsive only to an error never claimed and give Daniels something completely different from what (by hypothesis) the trial court erroneously denied.
Against the very slight value of this relief — relief that is at best only marginally responsive to the error made — stand the costs of requiring a new trial. See Morris v. Slappy, 461 U.S. 1, 14-15 , 103 S.Ct. 1610, 1618 , 75 L.Ed.2d 610 (1983) (absent prejudicial violation of Sixth Amendment right to counsel, court should consider costs of retrial in fashioning remedy; “[t]he spectacle of repeated trials to establish the truth about a single criminal episode inevitably places burdens on the system in terms of witnesses, records, and fading memories, to say nothing of misusing judicial resources”). These costs do not seem worth bearing in a situation in which the defendant has fully enjoyed his core Sixth Amendment rights to counsel. “[Wjhile the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159 , 108 S.Ct. 1692, 1697 , 100 L.Ed.2d 140 (1988).
I have no quarrel with United States v. Panzardi Alvarez, 816 F.2d 813 (1st Cir.1987), see Maj.Op. at 736 or Bland v. California Dept. of Corrections, 20 F.3d 1469, 1477-79 (9th Cir.1994), which hold — in cases where the counsel originally desired was available to conduct the retrial — that the deprivation of counsel of choice cannot be harmless error. Insistence on a showing of prejudice would either require an almost impossible comparison between the counsel actually serving and the hypothetical alternative, or it would effectively deny any appellate remedy. But this principle gives us no guidance as to how to proceed in these circumstances: That there was an error worth correcting in the usual case does not tell us how to proceed when the single logical correction is unavailable.
In sum, this is a rare case. If Mundy were still alive and were available to follow through with the potential retrial, I would concur in the majority’s disposition. Likewise, if the appointed counsel Daniels received in place of Mundy at his murder trial had been incompetent, I would reverse the conviction and remand for retrial. As neither is the case, I think it would be better to let the error go uneorrected than to force the system to incur the burdens of another trial, welcome as the prospect of such a windfall may be to Daniels. Accordingly, I believe Daniels’s claimed error is moot.