explaining that under Rule 701(b) "a lay witness's purpose is to inform the jury what is in the evidence, not to tell it what inferences to draw from that evidence"
How later courts described this case
- explaining that under Rule 701(b) "a lay witness's purpose is to inform the jury what is in the evidence, not to tell it what inferences to draw from that evidence"
- concluding that 80-year sentence for producing and possessing child pornography was presumptively reasonable given guidelines range of life in prison
- upholding the sentence even though the defendant was not personally invited to speak where fairness of the proceed- ings was not impacted because the substance of the allocution was delivered through the reading of the defendant’s letter and a below-Guidelines sentence was imposed
- rejecting expert testimony where expert “in essence, told the jury nothing more than, ‘I am familiar with the definition of child pornography, and this meets that definition because I said so’ ”
Written by the judges who cited it.
The opinion
EASTERBROOK, Chief Judge,
concurring.
Although the court holds that the district judge committed plain error by failing to “address the defendant personally” about allocution, as Fed.R.Crim.P. 32(i)(4)(A)(ii) requires, it also declines to reverse, because it is very unlikely that the gaffe affected the outcome. The judge twice invited allocution (though when speaking to counsel rather than Noel), and in response counsel read aloud a letter that Noel had written to the judge. Noel evidently thought that something composed in advance would present his position better than extemporaneous oral remarks. He has never contended that he did not know of his right to speak on his own behalf, and he has never asserted that he would have spoken if only the judge had raised the subject with him rather than counsel. Even the plainest of errors justifies reversal only if allowing the decision to stand would impair “the fairness, integrity or public reputation of judicial proceedings” (United States v. Atkinson, 297 U.S. 157, 160 , 56 S.Ct. 391 , 80 L.Ed. 555 (1936), quoted in United States v. Olano, 507 U.S. 725, 736 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993)). The integrity and public reputation of judicial proceedings would be undermined, rather than reinforced, if this court reversed on account of the district judge’s inconsequential misstep.
I write separately to question the conclusion of United States v. Luepke, 495 F.3d 443, 451 (7th Cir.2007), that, when conducting plain-error review of a conten *505 tion that the district judge violated Rule 32(i)(4)(A)(ii), the court of appeals must “presume prejudice when there is any possibility that the defendant would have received a lesser sentence had the district court heard from him before imposing sentence.” There are two problems with this standard: first the presumption in defendant’s favor, and second the proposition that “any possibility” of prejudice suffices to establish plain error.
Even on harmless-error review, the burden of showing prejudice rests on the defendant, not the prosecutor. See Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946); cf. O’Neal v. McAninch, 513 U.S. 432 , 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995). It is supposed to be harder to show plain error (when the defendant forfeited the issue by failing to raise it in the district court) than to show harmless error (when the defendant did raise the issue, and the judge wrongly rejected the argument). Yet Luepke makes it easier to reverse on plain-error review than on harmless-error review.
Only grave and prejudicial errors justify reversal when the defendant did not alert the district judge to the problem. See, e.g., United States v. Young, 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985); Atkinson; Olano. During the last 20 years, courts of appeals have occasionally declared that one or another kind of error warrants a modified rule, in which prejudice is presumed — and sometimes in which reversal follows if there is “any possibility” that the defendant was adversely affected. The Supreme Court has disapproved that approach. For example, when a court of appeals declared that prejudice would be presumed if alternate jurors are present during deliberations, the Supreme Court reversed in Olano and held that the defendant bears the burden of establishing prejudice. When a court of appeals concluded that prejudice is presumed if a district court fails to provide the defendant with all of the information required by Fed. R.Crim.P. 11, the Supreme Court reversed and held that the defendant bears the burden of showing prejudice, United States v. Vonn, 535 U.S. 55 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002), meaning that he would not have pleaded guilty had he received the information. United States v. Dominguez Benitez, 542 U.S. 74 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004).
And when some courts of appeals concluded that a prosecutor’s failure to keep a promise in a plea agreement leads to reversal unless the prosecutor shows that there is “no possibility” of an adverse effect, the Supreme Court replied that the defendant bears the burden of showing prejudice. Puckett v. United States, — U.S. -, 129 S.Ct. 1423 , 173 L.Ed.2d 266 (2009). See also United States v. Marcus, 538 F.3d 97, 102-05 (2d Cir.2008) (Sotomayor, J., concurring) (questioning the second circuit’s doctrine that prejudice is presumed for ex post facto issues, and that reversal is required if there is “any possibility” that pre-enactment conduct affected the verdict), petition for cert. filed, No. 08-1341.
Now it is true that Olano and its successors state that the defendant “ordinarily” bears the burden of establishing prejudice. This leaves open the possibility of presuming prejudice for some kinds of error. Yet it is also true that the Supreme Court has never found it appropriate to place the burden on the prosecutor when reviewing under Fed.R.Crim.P. 52(b). And the Justices have never so much as hinted that a “no possibility of harm” standard would be appropriate for any kind of error. A small category of “structural errors” justifies reversal without inquiry into prejudice — for example, the participation by a judge who does not hold office under Article III, see *506 Nguyen v. United States, 539 U.S. 69 , 123 S.Ct. 2130 , 156 L.Ed.2d 64 (2003), or deprivation of the right to counsel of one’s choice, see United States v. Gonzalez-Lopez, 548 U.S. 140 , 126 S.Ct. 2557 , 165 L.Ed.2d 409 (2006) — but no one thinks that a violation of Rule 32(i)(4)(A)(ii) is in the structural-error category. When the standard of review is plain error, reversal is “difficult, ‘as it should be.’ ” Puckett, 129 S.Ct. at 1429 , quoting from Dominguez Benitez, 542 U.S. at 83 n. 9, 124 S.Ct. 2333 .
Luepke justified transferring the burden to the prosecutor, and adopting the “no possibility” standard, because it is hard to show an adverse effect from a judge’s failure to address the defendant personally— rather than, say, addressing counsel in the defendant’s presence, which conveys the same information but does not satisfy Rule 32(i)(4)(A)(ii). But the reason it is hard to show injury is that violations of the Rule usually are inconsequential. That a violation did not affect anyone’s behavior— which may explain why no one objected' — • ought not make reversal the norm. It is instead why a court of appeals should allow the judgment to stand. It cannot be sound to say that the more technical the violation, and the less likely any adverse consequence, the more readily a court of appeals must reverse. Everything Luepke said about violations of Rule 32(i)(4)(A)(ii) could have been said — and was said, by the ninth circuit — in Vonn and Dominguez Benitez . But the Supreme Court held that the defendant must show prejudice when the district judge fails to supply the information required by Rule 11. If, for example, the defendant knew (perhaps having been told by counsel) the information on the Rule 11 list, there is no point in taking the plea anew. Just so with a violation of Rule 32(i)(4)(A)(ii). Luepke should be overruled.