# United States v. Quentin T. Wiles, United States of America v. Patrick J. Schleibaum

> Court of Appeals for the Tenth Circuit · December 10, 1996 · 102 F.3d 1043

URL: https://www.frixlaw.com/law-library/cases/9489852

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Quentin T. WILES, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, v. Patrick J. SCHLEIBAUM, Defendant-Appellant
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** December 10, 1996
- **Citations:** 102 F.3d 1043; 46 Fed. R. Serv. 151; 1996 U.S. App. LEXIS 31853; 1996 WL 707539
- **Precedential status:** Published
- **Opinion:** Dissent by Lucero
- **Judges:** Seymour, Porfilio, Anderson, Tacha, Baldock, Brorby, Ebel, Kelly, Henry, Briscoe, Lucero, Murphy, Seth, B-F
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by United States v. Schleibaum, 522 U.S. 945 (1997).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489852

## How later opinions describe it (automated extraction)

- explaining that structural error, which requires a reversal of conviction without a showing of prejudice, is not limited to situations where the constitutional error affects the entire conduct of trial from beginning to end and may apply to only a single count
- holding that materiality is an element of perjury that must be found by a jury and that there was a structural error in not requiring the jury to find materiality
- holding that the failure to instruct the jury on an element of the charged offense in violation of the Fifth and Sixth Amendments constituted structural error
- holding that failure to instruct juries on the element of materiality was structural and required vacating the defendant’s convictions
- finding no duplicity where the indictment merely alleged multiple means or methods of committing a single offense

## Opinion text

LUCERO, Circuit Judge,
with whom EBEL, Circuit Judge, joins, concurring in part, dissenting in part.
Recognizing that the Wiles, Schleibaum and Pappert cases present a common issue, one created by the Supreme Court decision in United States v. Gaudin, — U.S. -, 115 S.Ct. 2810 , 132 L.Ed.2d 444 (1995), this court agreed to consider two related questions en banc: (1) “whether the failure to instruct the jury on the issue of materiality ... constitutes a structural error”; and if so, (2) “whether the error is reversible per se or renewable under the plain-error analysis set out in United States v. Olano, [ 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 ] (1993).” En Banc Order (June 3, 1996). I concur in the majority’s conclusion as to the first question. But I dissent from its “per se ” resolution of the second. .The mere classification of an error as “structural” does not automatically dictate reversal under Fed.R.Crim.P. 52(b) plain-error review. 1
From its earliest roots, plain-error review has been discretionary. Wiborg v. United States, one of the first statements of the common law rule, holds that “if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it,” even if the defendant has “not duly excepted” the error. 163 U.S. 632, 658, 659 , 16 S.Ct. 1127, 1137, 1138 , 41 L.Ed. 289 (1896) (emphasis added). 2 Over time, appellate discretion to correct for plain error came to be exercised solely for the limited purpose of avoiding miscarriages of justice. See United States v. Young, 470 U.S. 1, 15 , 105 S.Ct. 1038, 1046 , 84 L.Ed.2d 1 (1985). In United States v. Atkinson, the Court established a different approach to plain error while maintaining the discretion of earlier cases. In what has come to be known as the Atkinson standard, the Supreme Court held that “[i]n exceptional circumstances, especially in criminal cases, appellate courts ... may, of their own motion, notice errors to which no exception has been taken ... [if they] seriously affect the fairness, integrity or public reputation of judicial proceedings.” 297 U.S. 157, 160 , 56 S.Ct. 391, 392 , 80 L.Ed. 555 (1936) (emphasis added).
Referring to unnoticed structural errors, the Court in Olano subsequently noted that “[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome.” 507 U.S. at 735 , 113 S.Ct. at 1778 (emphasis added). Finally, Rule 52(b) is couched in discretionary terms: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Fed.R.Crim.P. 52(b) (emphasis added); compare. Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity or variance which *1068 does not affect substantial rights shall be disregarded.” (Emphasis added)). The Supreme Court has carefully avoided mandating automatic reversal for plain errors. In a case arising from our circuit, the Court unambiguously states that “a per se approach to plain-error review is flawed.” Young, 470 U.S. at 16 n. 14, 105 S.Ct. at 1047 n. 14.
The court today ignores this long line of authority. Although the majority claims the mantle of Supreme Court precedent, I do not believe any case supports a rule that strips appellate courts of discretion to review eases for plain errors merely because they are labeled “structural.” 3 The majority cites Olano for the proposition that “structural” error falls within that “ ‘special category of forfeited errors’ that does not require a showing of prejudice, but rather, must be corrected.” Maj. Op. at 1061-62 (emphasis in original). Olaño states no such principle. It holds that “this issue need not be addressed.” Olano, 507 U.S. at 735 , 113 S.Ct. at 1778 . It does no more than suggest that under the third prong of plain-error analysis there are some errors that may automatically affect substantial rights without a showing of prejudice, and that “can” be corrected. Id.
The inescapable import of the majority’s opinion is that the error asserted here escapes review under plain-error’s fourth prong, the Atkinson standard. See Maj. Op. at 1062 n.13. To the extent the majority relies on Olano , it is mistaken. The Supreme Court majority in Olano never considers whether the error before it “would have warranted” correction under the fourth prong of the plain-error test, because it concludes that the error (allowing alternate jurors to participate in the jury deliberations) was not prejudicial and therefore did not “affect substantial rights.” See Olano, 507 U.S. at 741 , 113 S.Ct. at 1781 . It thus never reaches the issue before us. Justice Stevens, however, speaking for three members of the Court, views the error in Olano as structural and necessarily affecting the defendant’s substantial rights, thus satisfying the third prong of plain-error review. Id. at 743-44 , 113 S.Ct. at 1782-83 (Stevens, J., dissenting). While Justice Stevens concludes that under harmless-error review the error is automatically reversible, id. at 744 , 113 S.Ct. at 1783 , he continues:
Reading “substantial rights” the same way in Rule 52(b) as in Rule 52(a) does' not, of course, eliminate the difference between cases in which no objection is made and those in which one is. A nonforfeited error affecting substantial rights must be .corrected under Rule 52(a). A forfeited error, however, even if it is plain and affects substantial rights, “may” be corrected at the discretion of the reviewing court under Rule 52(b). It is this distinction between automatic and , discretionary reversal that gives practical effect to the difference between harmless-error and plain-error review, and also every incentive to the defendant to raise objections at the trial level.
Id. (citation omitted). Hence, the only three members of the Supreme Court to have addressed the precise issue before us would find fault with the result we reach today. 4
The Supreme Court’s rejection of an automatic rule of reversal makes good sense. Such a rule could free a defendant even though the structural error did not seriously *1069 affect the “fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732 , 113 S.Ct. at 1776 (quotation omitted). Moreover, automatic reversal omits appellate analysis of the entire record under the Atkinson standard, thus preventing the Supreme Court from reviewing our decision to correct the error for an abuse of discretion. See Young, 470 U.S. at 15-16 , 105 S.Ct. at 1046 (majority opinion), at 22 n.1, 105 S.Ct. at 1049 n. 1 (Brennan, J. concurring in part and dissenting in part). Notwithstanding the uninterrupted line of cases giving appellate courts discretion to correct plain error, the majority is enamored of its per se rule and claims that the Supreme Court requires it. I disagree.
The majority’s preoccupation with the per se rule stems from its focus on the interrelationship between harmless-error review and structural errors. Harmless-error analysis, under which all of the structural error eases cited by the majority were decided, serves a different function from plain-error review. Harmless-error rules were adopted to avoid automatic reversal for trivial errors that have no effect on the outcome of a trial. See Roger J. Traynor, The Riddle of Harmless Error 13-14 (1970). Such rules “serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” Chapman v. California, 386 U.S. 18, 22 , 87 S.Ct. 824, 827 , 17 L.Ed.2d 705 (1967). In the same vein, the Court notes “that the harmless error doctrine is essential to preserve the ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.’ ” Arizona v. Fulminante, 499 U.S. 279, 308 , 111 S.Ct. 1246, 1264 , 113 L.Ed.2d 302 (1991) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986)).
Errors involving the presentation of the case to the jury, labeled “trial errors,” may be “quantitatively assessed in the context of other evidence presented in order to determine whether their admission was harmless beyond a reasonable doubt.” Id. at 307-08, 111 S.Ct. at 1264 . Other errors, labeled structural, are regarded as “defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” Id. at, 309, 111 S.Ct. at 1265 . These latter errors share “a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 310 , 111 S.Ct. at 1265 . Such errors create “consequences that are necessarily unquantifiable and indeterminate.” Sullivan v. Louisiana, 508 U.S. 275, 282 , 113 S.Ct. 2078, 2083 , 124 L.Ed.2d 182 (1993). In cases marred by structural error it is impossible to review for harmless error and “quantitatively assess[ ] [the effect of the error] in the context of other evidence presented.” Fulminante, 499 U.S. at 308 , 111 S.Ct. at 1264 . For this reason, the “affecting substantial rights” third prong of Olano is assumed satisfied even without proof of prejudice. 5
*1070 I part with the majority to the extent that it regards structural error as automatically deeming judicial proceedings fundamentally unfair, thereby escaping fourth-prong Atkinson review. Maj. Op. at 1062 n.13. Such an approach is both over-inclusive and under-inclusive. Some errors, the admission of a coerced confession, for example, might seem of a sufficiently grave magnitude that “a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 577-78 , 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 (1986). Coercing a confession by physical force or psychological torture — the Court draws no distinction between the two, see, e.g., Rogers v. Richmond, 365 U.S. 534, 540 , 81 S.Ct. 735, 739 , 5 L.Ed.2d 760 (1961) — so deeply offends the sense of justice of a civilized society, see Fulminante, 499 U.S. at 293 , 111 S.Ct. at 1256 (White, J., dissenting), that every practicable step should be taken to eradicate the practice. Yet Fulminante specifically holds that admission of a coerced confession into evidence is not structural error. Rather, such admission is subject to harmless-error review precisely because it does not affect the structure within which the trial proceeds. Id. at 309-11 , 111 S.Ct. at 1264-66 . As wrong as it is to allow the jury to consider a coerced confession, that flaw is not structural, and it does not escape harmless-error review.
By contrast, the claimed error in these cases, that of taking an element of the offense away from the jury, is structural in the sense defined by Fulminante and applied in Sullivan . Yet I cannot conclude that this error requires reversal in every case, regardless of the posture in which it was raised. True, this error defies harmless-error review. This is because we cannot meaningfully contemplate its effect on the jury’s deliberation — the nature of the error was to remove an issue from the jury. Plain-error review, as noted above, has a different focus than harmless-error review; it concerns the error’s effect on the fairness of the proceedings. Given that different focus, an error in the structure of the proceedings that defies harmless-error review remains subject to plain-error analysis. In some cases, such as where there is overwhelming evidence on an element and the defendant never even contested its factual predicate, the judicial proceedings, taken as a whole, might be considered eminently fair despite the structural error.
Because a defendant may either waive or forfeit almost any constitutional right, see Olano, 507 U.S. at 731 , 113 S.Ct. at 1776 , plain-error review 6 acts to safeguard the fundamental justice and fairness embodied in the judicial process. Contrary to the majority’s assumption, plain-error review does not look merely at what the jury might have done had the defendant- not forfeited his right. See Young, 470 U.S. at 15-16 , 105 S.Ct. at 1046-47 . While “[a] defendant may *1071 assuredly insist upon observance of [the jury trial] guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt,” Carella v. California, 491 U.S. 263, 268 , 109 S.Ct. 2419, 2422 , 105 L.Ed.2d 218 (1989) (Scalia, J., concurring), where the defendant fails to insist on observance of this guarantee at trial we are under no obligation to restore it for him on appeal. 7
The majority’s conclusion misreads plain-error law. It gives shrewd attorneys the opportunity to engage in improper gamesmanship at no risk to their clients, and is inappropriate as a matter of policy. One need not exercise asymptotic levels of imagination to conceive that under the rule announced today, counsel may deliberately overlook a structural error in the trial proceeding, such as a faulty reasonable doubt instruction to the jury, see Sullivan, 508 U.S. 275 , 113 S.Ct. 2078 , knowing that if the jury convicts, her client will nonetheless be guaranteed a new trial. The whole purpose of distinguishing between harmless-error and plain-error review is to eliminate these tactics. We should leave plain-error review for its imended purpose: correcting those errors under Rule 52(b) which “seriously affect the fairness, integrity or public reputation of judicial proceedings.”
For the foregoing reasons, while I join in the court’s conclusion as to Part U.A.2.C., I respectfully dissent from the court’s resolution of the second question before us, Part II.A.2.b. I would hold that failure to instruct under Gaudin is not error that automatically mandates reversal. I would analyze the facts of each ease under the fourth prong, the Atkinson standard of plain-error review, as required by Olano . I would resubmit the individual cases back to the original panels for decisions pursuant to this standard.
. Because we decide only the common legal issues of the three cases en banc, we should not purport to apply the common legal rule to the disparate facts of each case. Rather, all three cases should be resubmitted to the panels to decide the outcome under the rule we enunciate today. See Turner v. Small Business Admin. (In re Turner), 84 F.3d 1294, 1299 (10th Cir.1996) (en banc) (deciding en banc issue as a matter of law and remanding to panel for further consideration in light of new rule).
. The drafters of the federal rules cite Wiborg for the common law rule. Fed.R.Crim.P. 52(b) (advisory committee note).
. The majority cites Rose v. Clark, 478 U.S. 570, 577 , 106 S.Ct. 3101, 3105-06 , 92 L.Ed.2d 460 (1986), and Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078, 2081-82 , 124 L.Ed.2d 182 (1993), for thé proposition that structural errors mandate reversal. These cases, like all the others cited by the majority on the question of structural error, address harmless, not plain errors. The language in Rose and Sullivan , although broad, cannot be read outside of the harmless-error context. See infra at p. 1070.
. On this point, the Supreme Court has recently granted review of an unpublished Eleventh Circuit decision, United States v. Johnson, No. 95-2417, 82 F.3d 429 (11th Cir.), cert. granted, - U.S. -, 117 S.Ct. 451 , 136 L.Ed.2d 346 (1996), that may resolve the issues before the en banc court. Moreover, our inquiry in the Pappert case is complicated by the fact that the Supreme Court has yet to decide whether materiality is an element of the § 1014 offense, let alone whether the error falls within a special category of cases that would mandate reversal under harmless-error analysis. See United States v. Wells, 63 F.3d 745 (8th Cir.1995), cert. granted, - U.S. -, 116 S.Ct. 1540 , 134 L.Ed.2d 645 (1996).
. The distinction between trial and structural error was bom in controversy in the 1991 Fulminante decision. Justice White, speaking for four dissenters, called the distinction a "meaningless dichotomy,” noting "our jurisprudence on harmless error has not classified so neatly the errors at issue." 499 U.S. at 290-91 , 111 S.Ct. at 1254-55 . Chief Judge Harry T. Edwards refers to it as a "distinction that I find baffling and mostly unhelpful.” Harry T. Edwards, To Err is Human, But Not Always Harmless: When Should Ilegal Error Be Tolerated?, 70 N.Y.U. L.Rev. 1167, 1207 (1995). If the essential distinction between trial and structural errors lies in their susceptibility to being quantitatively assessed in the context of other evidence presented the jury, see Fulminante, 499 U.S. at 307-08 , 111 S.Ct. at 1263-64 , the framework is flawed because the cases labeled as structural and trial errors do not accurately divide on the basis of the feasibility of appellate review. See Charles J. Ogletree, Jr., Arizona v. Fulminante: The Harm of Applying Harmless Error to Coerced Confessions, 105 Harv.L.Rev. 152, 164-66 (1991). In essence, the Court has not yet "clearly articulatefd] the structure that structural errors undermine.” Id. at 164.
At the margin, there is much disagreement about which label to affix to a given error. This point is well demonstrated by the views of my separately dissenting colleague, Judge Briscoe, who would pigeonhole Gaudin error in the "trial-error” box, as well as by the wide range of views noted at footnotes 12 and 13 of the majority opinion. The problem with affixing the "structural” label is that it denotes harmless-error consequence, while merely connoting the level of egregiousness of the error; to the extent that jt requires correcting error that does not affect the fundamental fairness of the trial’s re- *1070 suit, it fuels the criticism of the criminal process that a "guilty defendant is let free on a mere technicality.” If the distinction between trial and structural error is to be imported into plain-error analysis, in order to exercise appellate discretion the temptation would be to divine different levels of structural error, some warranting reversal, others not. The majority avoids this Dantean spectacle by ignoring its discretion under plain-error review altogether. Judge Briscoe does so by calling the error under review "trial error.”
. In their briefing en banc, appellants argue that harmless-error, rather than plain-error review is applicable to cases such as this, where the opportunity to object was foreclosed by the then-current state of the law. Because the constitutional right only arose after trial, appellants contend that they did not "forfeit” any right. Strictly speaking, appellants are correct. Cases such as this do not involve the forfeiture of existing rights. Nevertheless, courts generally apply plain-error, not harmless-error review in such situations. See, e.g., United States v. Randazzo, 80 F.3d 623, 631 (1st Cir.1996) (applying plain-error review); United States v. Washington, 12 F.3d 1128, 1138-39 (D.C.Cir.) (same), cert. denied, - U.S. -, 115 S.Ct. 98 , 130 L.Ed.2d 47 (1994); but see United States v. Keys, 95 F.3d 874, 878 (9th Cir.1996) (en banc) (applying harmless-error review). I believe that application of plain-error review in this case strikes the proper balance between the defendants’ interest in having a new right considered on direct review, and the judicial system's interest in orderly administration of cases and finality of proceedings in which the trial court acted properly under the then-existing law. See Randazzo, 80 F.3d at 631-32 .
. In footnote 10, the majority announces an exception to the rule that Gaudin errors are structural and must be reversed in all circumstances. This exception, for cases in which the defendant stipulates to removal of an element, is of limited utility and should have no bearing on our ability to review for plain error. I agree that if a defendant stipulates to an element of the offense, it is not error to remove it from the jury’s consideration. See United States v. Mason, 85 F.3d 471, 472 (10th Cir.1996). But because the ‘‘structuralness” of Gaudin-type error arises from the denial of the defendant's right to have the jury decide each element of the offense beyond.a reasonable doubt, an informal concession of an element by the defendant or his attorney would not remove his right to a jury determination of that element. See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 21.1(h) (1984) (jury trial may only be waived by "express and intelligent consent of the defendant,” and should be made personally by defendant, either in writing or in open court); see also Fed. R.Crim.P. 23(a) (waiver of jury trial must be in writing).
While the majority suggests that ‘‘[a] situation may arise when a reviewing court may conclude with complete confidence that a failure to instruct on an element of an offense did not play a role in the jury’s verdict on that offense,” applying footnote 10 to anything short of a stipulation would engage us in determinations of "harmless structural error.” See California v. Roy, - U.S. -, -, 117 S.Ct. 337, 339-40 , 136 L.Ed.2d 266 (1996) (Scalia, J., concurring) (where an element of the offense was not presented to the jury, the error can be harmless "only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well.”). In any event, whether or not the error is deemed structural, it should not limit our review for plain error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489852. Public record. Not legal advice.