Petition for Writ of Certiorari — Jason Dix, Petitioner v. United States
Supreme Court briefOct 19, 2023
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No. _____________
IN THE
Supreme Court of the United States
JASON DIX,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
E. Travis Ramey
Appellate Advocacy Clinic
University of Alabama School of Law
Box 870382
101 Paul W. Bryant Drive, East
Tuscaloosa, Alabama 35487
(205) 348-4960
Kimberly H. Albro
Counsel of Record
Assistant Federal Public Defender
Federal Public Defender’s Office
District of South Carolina
1901 Assembly Street, Suite 200
Columbia, South Carolina 29201
(803) 765-5088
kimberly_albro@fd.org
Counsel for Petitioner Jason Dix
QUESTIONS PRESENTED
Here, the United States failed to argue that the lack of proper notice to
Petitioner Jason Dix of a new theory for applying a sentencing enhancement was
harmless error. Nevertheless, the United States Court of Appeals for the Fourth
Circuit held that it was compelled to raise and decide harmless error sua sponte.
There is general agreement that government parties bear the burden to show that
favorable errors are harmless. Federal and state courts divide, however, on whether
and when they may raise and decide harmless error sua sponte if a government party
fails to raise the issue in its appellate briefing.
I.
May an appellate court, consistent with due process, relieve a
government party of its burden to show that a favorable error is harmless, decide the
issue sua sponte, and thereby assume the government party’s burden itself?
II.
If appellate courts may assume a government party’s burden to show
that a favorable error is harmless, is doing so mandatory or discretionary?
III.
If doing so is discretionary, what limitations do due process or other
considerations place on when appellate courts may exercise that discretion and when
appellate courts should exercise that discretion?
PARTIES TO THE PROCEEDING
Petitioner, defendant-appellant below, is Mr. Jason Dix.
Respondent, appellee below, is the United States of America.
CORPORATE DISCLOSURE
There are no corporate parties in this case.
i
STATEMENT OF RELATED PROCEEDINGS
This case arises from the following proceedings in the United States District
Court for the District of South Carolina and the United States Court of Appeals for
the Fourth Circuit:
•
United States v. Dix, No. 19-4725. United States v. Dix, 60 F.4th 61 (4th
Cir.), reh'g granted, opinion withdrawn, No. 19-4725, 2023 WL 2784870
(4th Cir. Apr. 5, 2023), and on reh'g, 64 F.4th 230 (4th Cir. 2023). The
court denied Dix’s motion for rehearing en banc on May 24, 2023. See
United States v. Dix, 69 F.4th 149 (4th Cir. 2023).
•
United States v. Dix, No. 3:18-cr-00958-JMC-1 (D.S.C. Sept. 23, 2019).
No other proceedings in state or federal trial or appellate courts, or in this court, are
directly related to this case.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................................................................... i
PARTIES TO THE PROCEEDING .......................................................................................... i
CORPORATE DISCLOSURE ................................................................................................. i
STATEMENT OF RELATED PROCEEDINGS.......................................................................... ii
TABLE OF AUTHORITIES ................................................................................................... v
PETITION FOR A WRIT OF CERTIORARI ............................................................................. 1
OPINIONS BELOW ............................................................................................................ 1
JURISDICTION .................................................................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............................................. 1
STATEMENT OF THE CASE ................................................................................................ 2
REASONS FOR GRANTING THE PETITION .......................................................................... 4
I.
The government bears the burden to show harmless error. ........................ 4
II.
The lower courts disagree on whether and when a court may meet the
government’s burden for it. ........................................................................... 6
A.
Lower court acceptance of sua sponte review for harmless error is not
unanimous. ............................................................................................ 6
B.
Among courts that allow sua sponte review for harmless error, there
is significant disagreement about when to allow it.............................. 9
1. Approach One: The Giovannetti factors govern when courts have
discretionary authority to raise harmless error sua sponte. ........ 10
2. Approach Two: Courts have unlimited discretion to raise harmless
error sua sponte, but Giovannetti or some other test guides the
exercise of courts’ discretion. ......................................................... 15
3. Approach Three: Courts must perform a sua sponte review for
harmless error. ............................................................................... 22
III.
The petition raises an important question of federal law that this Court
should address. ............................................................................................ 24
iii
A.
Courts raising harmless error sua sponte implicates a criminal
defendant’s constitutional due-process rights. ................................... 24
B.
The differences between the lower court’s approaches are meaningful
and result in arbitrary differences in due process protections. ......... 26
C.
Sua sponte harmless error review raises separation of powers
concerns and allows the executive to avoid bearing a minor burden by
imposing a significant burden on the judiciary. ................................. 27
D.
The issue is recognized, widespread, and recurring. ......................... 30
E.
The Fourth Circuit’s en banc decision shows the importance of the
issue and highlights the potential arbitrary nature of outcomes on
this issue. ............................................................................................. 32
IV.
This case is an ideal vehicle to resolve the issue. ....................................... 35
V.
The Fourth Circuit’s decision is contrary to all its sister circuits, contrary
to Fourth Circuit precedent, and reaches the wrong conclusion about the
harmfulness of the district court’s error. .................................................... 37
CONCLUSION ................................................................................................................. 40
APPENDIX
Published Opinion of the United States Court of Appeals
for the Fourth Circuit entered on February 14, 2023 ..................................... 1A
Published Opinion of the United States Court of Appeals
for the Fourth Circuit entered on April 5, 2023 .............................................24A
Published Order of the United States Court of Appeals
for the Fourth Circuit entered on May 24, 2023 ............................................48A
Mandate of the United States Court of Appeals
for the Fourth Circuit entered on June 1, 2023 .............................................62A
United States Constitution, Amendment V ...................................................63A
18 U.S.C. § 922(g) ............................................................................................64A
iv
TABLE OF AUTHORITIES
Cases
Atkins v. Hooper, 979 F.3d 1035 (5th Cir. 2020) ........................................................ 18
Bank of Columbia v. Okely, 17 U.S. (4 Wheat.) 235 (1819)........................................ 24
Belcher v. State, 464 P.3d 1013 (Nev. 2020) ................................... 7, 14, 24, 25, 29, 40
Berger v. United States, 295 U.S. 78 (1935)................................................................ 28
Bester v. Warden, 836 F.3d 1331 (11th Cir. 2016) ........................................................ 4
Bourgeois v. Watson, 977 F.3d 620 (7th Cir. 2020) .................................................... 17
Commonwealth v. Hamlett, 234 A.3d 486 (Pa. 2020) ................................... 4, 7, 20, 21
Commonwealth v. Story, 383 A.2d 155 (Pa. 1978)........................................................ 5
Crawford v. Washington, 541 U.S. 36 (2004).............................................................. 19
Daniel v. State, 78 P.3d 205 (Wyo. 2003) .................................................................... 14
Goodwin v. State, 751 So. 2d 537 (Fla. 1999) ....................................................... 23, 37
Gover v. Perry, 698 F.3d 295 (6th Cir. 2012) ...................................................... 6, 9, 19
Guadalupe v. Att’y Gen. U.S., 951 F.3d 161 (3d Cir. 2020) ........................................ 16
Hagar v. Reclamation Dist. No. 108, 111 U.S. 701 (1884) ......................................... 24
Harlow v. State, 70 P.3d 179 (Wyo. 2003)................................................................... 14
Harper v. Commonwealth, 266 S.W.3d 813 (Ky. 2008) ................................................ 5
Harris v. Lincoln Nat’t Life Ins. Co., 42 F.4th 1292 (11th Cir. 2022) .................. 13, 22
Hassan-El v. State, 911 A.2d 385 (Del. 2006) ......................................................... 7, 21
Huess v. State, 687 So. 2d 823 (Fla. 1996) .............................................................. 7, 21
Hutto v. Davis, 454 U.S. 370 (1982) .............................................................................. 4
In re Det. Of Blaise, 830 N.W.2d 310 (Iowa 2013) ...................................................... 14
Jones v. Cain, 600 F.3d 527 (5th Cir. 2010) ........................................................... 6, 18
v
Knowles v. State, 848 So. 2d 1055 (Fla. 2003) ............................................................ 23
Lambert v. People of the State of California, 355 U.S. 225 (1957) ............................. 24
Lufkins v. Leapley, 965 F.2d 1477 (8th Cir. 1992)............................................ 6, 10, 11
McCray v. State, 919 So. 2d 647 (Fla. Dist. Ct. App. 2006) ....................................... 23
Morales v. United States, 248 A.3d 161 (D.C. 2021)..................................................... 7
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950) ............................... 24
Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502 (4th Cir.
1992) ......................................................................................................................... 27
O’Neal v. McAninch, 513 U.S. 432 (1995) ............................................................... 4, 38
Pemberton v. State, 959 N.W.2d 891 (N.D. 2021) ..................................................... 5, 8
People v. Nitz, 848 N.E.2d 982 (Ill. 2006) ..................................................................... 5
Rose v. Clark, 478 U.S. 570 (1986) .............................................................................. 25
Rose v. United States, 629 A.2d 526 (D.C. 1993) .............................................. 7, 28, 29
Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005) ........................................................ 17
Schiro v. Farley, 510 U.S. 222 (1994).......................................................................... 28
Shinseki v. Sanders, 556 U.S. 396 (2009) ..................................................................... 4
Smith v. State, 986 So.2d 290 (Miss. 2008) .................................................................. 5
State v. Almaraz, 301 P.3d 242 (Idaho 2013) ............................................................... 7
State v. Botelho, 83 A.3d 814 (N.H. 2013) ..................................................................... 5
State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) .............................................................. 5
State v. Gibson, 391 So. 2d 421 (La. 1980).................................................................... 5
State v. Henderson, 115 P.3d 601 (Ariz. 2005) ............................................................. 5
State v. Jones, 156 N.E.3d 872 (Ohio 2020) .................................................................. 5
State v. Jones, 771 A.2d 407 (Md. Ct. Spec. App. 2001) ............................................... 8
State v. Lemanski, 242 A.3d 532 (Conn. 2020) ............................................................. 5
vi
State v. Marshall, 882 N.W.2d 68 (Iowa 2016) ................................................. 7, 14, 40
State v. McKinney, 777 N.W.2d 555 (Neb. 2010) .............................................. 7, 21, 29
State v. Montoya, 333 P.3d 935 (N.M. 2014)................................................................. 5
State v. Porte, 832 N.W.2d 303 (Minn. Ct. App. 2013) ........................................... 8, 29
State v. Rodriguez, 889 N.W.2d 332 (Minn. Ct. App. 2017) ......................................... 8
State v. Ruiz, 248 P.3d 720 (Idaho 2010) ................................................................ 7, 27
State v. Shoen, 598 N.W.2d 370 (Minn. 1999) .............................................................. 5
Stuard v. Stewart, 401 F.3d 1064 (9th Cir. 2005) ...................................................... 13
United States v. Adams, 1 F.3d 1566 (11th Cir. 1993) ..................................... 6, 13, 40
United States v. Arrellano, 757 F.3d 623 (7th Cir. 2014) ........................................... 17
United States v. Arrous, 320 F.3d 355 (2d Cir. 2003) ................................................. 20
United States v. Brizeula, 962 F.3d 784 (4th Cir. 2020) ...................... 6, 34, 37, 38, 40
United States v. Brooks, 772 F.3d 1161 (9th Cir. 2014) ............................................. 12
United States v. Burgos-Montes, 786 F.3d 92 (1st Cir. 2015) .................................... 18
United States v. Burnett, 827 F.3d 1108 (D.C. Cir. 2016) ............................................ 4
United States v. Cerno, 529 F.3d 926 (10th Cir. 2008) ................................................. 5
United States v. Davis, 726 F.3d 434 (3d Cir. 2013) .................................................. 16
United States v. Davis, 859 F.3d 592 (8th Cir. 2017) ................................................... 4
United States v. Dix, 60 F.4th 61 (4th Cir. 2023) ......................................................... 1
United States v. Dix, 64 F.4th 230 (4th Cir. 2023) ................................................. 1, 22
United States v. Dix, 69 F.4th 149 (4th Cir. 2023) ....................................... 1, 5, 34, 35
United States v. Dolah, 245 F.3d 98 (2d Cir. 2001) .................................................... 19
United States v. Dominguez-Benitez, 542 U.S. 74 (2004) ............................................. 5
United States v. Esparza, 791 F.3d 1067 (9th Cir. 2015) ............................................. 4
vii
United States v. Faulks, 201 F.3d 208 (3d Cir. 2000)............................................. 6, 16
United States v. Franz, 772 F.3d 134 (3d Cir. 2014) .................................................... 4
United States v. Garcia-Lagunas, 835 F.3d 479 (4th Cir. 2016).................................. 4
United States v. Ghane, 673 F.3d 771 (8th Cir. 2012)................................................ 11
United States v. Giovannetti, 928 F.2d 225 (7th Cir. 1991) .. 6, 8-23, 26, 27, 32, 38, 40
United States v. Gomez, 6 F.4th 992 (9th Cir. 2021) .............................................. 6, 12
United States v. Gonzalez-Flores, 418 F.3d 1093 (9th Cir. 2005) ... 9, 11-13, 25, 29, 40
United States v. Gutierrez-Mendez, 752 F.3d 418 (5th Cir. 2014) ............................... 4
United States v. Haidley, 400 F.3d 642 (8th Cir. 2005) ............................................... 4
United States v. Hansen, 944 F.3d 718 (8th Cir. 2010) .............................................. 11
United States v. Hodge, 902 F.3d 420 (4th Cir. 2018) ................................................ 39
United States v. Holly, 488 F.3d 1298 (10th Cir. 2007).............................................. 10
United States v. Hudson, 673 F.3d 263 (4th Cir. 2012).............................................. 27
United States v. Ivey, 60 F.4th 99 (4th Cir. 2023) ........................................................ 4
United States v. Jacobs, 97 F.3d 275 (8th Cir. 1996) ................................................. 11
United States v. Jadlowe, 628 F.3d 1 (1st Cir. 2010) ................................................... 4
United States v. Kloehn, 620 F.3d 1122 (9th Cir. 2010) ....................................... 11, 12
United States v. Magee, 834 F.3d 30 (1st Cir. 2016) .................................................. 18
United States v. Mason, 692 F.3d 178 (2d Cir. 2012) ................................................. 19
United States v. McLaughlin, 126 F.3d 130 (3d Cir. 1997) .................................. 16, 26
United States v. Molina, 407 F.3d 511 (1st Cir. 2005) ........................................... 6, 26
United States v. Montgomery, 100 F.3d 1404 (8th Cir. 1996) .............................. 10, 11
United States v. Murguia-Rodriguez, 815 F.3d 566 (9th Cir. 2016) .................... 11, 12
United States v. Olano, 507 U.S. 725 (1993) .......................................................... 4, 38
viii
United States v. Pryce, 938 F.2d 1343 (D.C. Cir. 1991) ........................ 6, 18, 30, 32, 37
United States v. Robinson, 724 F.3d 878 (7th Cir. 2013) ............................................. 4
United States v. Rodriguez, 602 F.3d 346 (5th Cir. 2010).................................... 18, 19
United States v. Rodriguez, 880 F.3d 1151 (9th Cir. 2018)........................................ 24
United States v. Rodriguez-Preciado, 399 F.3d 1118 (9th Cir. 2005) ........................ 12
United States v. Rose, 104 F.3d 1408 (1st Cir. 1997) ....................................... 6, 16, 18
United States v. Russian, 848 F.3d 1239 (10th Cir. 2017) ........................................... 4
United States v. Samaniego, 187 F.3d 1222 (10th Cir. 1999) .......................... 6, 10, 26
United States v. Seng, 934 F.3d 110 (2d Cir. 2019) ...................................................... 4
United States v. Shavers, 693 F.3d 363 (3d Cir. 2012) ............................................... 16
United States v. Silver, 954 F.3d 455 (2d Cir. 2020) .............................................. 6, 19
United States v. Susany, 893 F.3d 364 (6th Cir. 2018) ................................................ 4
United States v. Terry, 916 F.2d 157 (4th Cir. 1990) ................................................. 39
United States v. Varela-Rivera, 279 F.3d 1174 (9th Cir. 2002) ................................. 11
United States v. Vonn, 535 U.S. 55 (2002) .............................................................. 4, 38
United States v. Vontsteen, 950 F.2d 1086 (5th Cir. 1992) ........................................ 18
United States v. Waller, 654 F.3d 430 (3d Cir. 2011) ................................................... 5
Vigil v. State, 98 P.3d 172 (Wyo. 2004) ................................................................... 7, 14
Wymoing v. Livington, 443 F.3d 1211 (10th Cir. 2006)............................ 10, 17, 19, 26
Statutes
18 U.S.C. § 922(g)(1) .................................................................................................. 1, 2
28 U.S.C. § 1254(1) ........................................................................................................ 1
U.S. Const. amend. III, § 1 ............................................................................................ 4
U.S. Const. amend. V............................................................................................... 1, 24
ix
U.S. Const. amend. XIV, § 1 ........................................................................................ 24
Rules
Fed. R. App. P. 35(a) .................................................................................................... 32
Fed. R. Crim. P. 32(f) ................................................................................................... 39
Fed. R. Crim. P. 52(a) ...................................................................................... 22, 32, 38
Guidelines
U.S.S.G. § 2K2.1(b)(6)(B) ............................................................................................. 35
Other Authorities
Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003)
............................................................................................................................. 32, 33
Darryl K. Brown, Does It Matter Who Objects? Rethinking the Burden to Prevent
Errors in Criminal Process, 98 Tex. L. Rev. 625 (2020) ................................... 27, 31
John M. Greabe, The Riddle of Harmless Error Revisited, 54 Hous. L. Rev. 59 (2016)
................................................................................................................................... 25
Justin Murray, A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev.
1791 (2017) ............................................................................................................... 25
Mary Nicol Bownman, Mitigating Foul Blows, 49 Ga. L. Rev. 309 (2015).......... 30, 31
Michael T. Fisher, Harmless Error, Prosecutorial Misconduct, and Due Process:
There’s More to Due Process than the Bottom Line, 88 Colum. L. Rev. 1298 (1988)
................................................................................................................................... 31
United States Court of Appeals for the Fourth Circuit, En Banc Cases,
https://www.ca4.uscourts.gov/opinions/en-banc-cases#2022 .................................. 33
United States Court of Appeals for the Fourth Circuit, FAQs – Statistics,
https://perma.cc/A6J2-Z9TS..................................................................................... 33
United States Courts, Federal Court Management Statistics – Summary (Dec. 31,
2022), https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_
appsumary1231.2022.pdf ......................................................................................... 33
x
PETITION FOR A WRIT OF CERTIORARI
Petitioner Jason Dix respectfully asks for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Fourth Circuit.
OPINIONS BELOW
The United States Court of Appeals for the Fourth Circuit affirmed the district
court’s judgment in a published opinion, United States v. Dix, 60 F.4th 61 (4th Cir.
2023). Pet. App. 1A-23A. On rehearing, the court published a revised opinion, United
States v. Dix, 64 F.4th 230 (4th Cir. 2023). Pet. App. 24A-47A. The court denied Dix’s
second petition for rehearing en banc, and that published order can be found as
United States v. Dix, 69 F.4th 149 (4th Cir. 2023). Pet. App. 48A-61A.
JURISDICTION
The United States Court of Appeals for the Fourth Circuit issued final
judgment on April 5, 2023. The Fourth Circuit denied Dix’s second petition for
rehearing en banc on May 24, 2023. This Court granted Dix’s Application for an
Extension of Time Within Which to File a Petition for a Writ of Certiorari on June
27, 2023. No. 22A1117. This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
U.S. Const. amend. V and 18 U.S.C. § 922(g)(1) are reproduced in the Appendix
to this petition.
1
STATEMENT OF THE CASE
Dix was driving a car belonging to Andrea Hair when a deputy sheriff noticed
him and thought he was “behaving suspiciously.” Pet. App. 25A; JA144-45. 1 The
deputy sheriff began to follow Dix, who sped away. Pet. App. 25A. After a car chase,
Dix ultimately crashed into another vehicle. Id. After Dix was arrested, police
recovered a firearm and ammunition from the car and charged Dix with violating 18
U.S.C. § 922(g)(1). Id. At the time of arrest, Dix stated he had permission to use the
vehicle. JA 59. Hair later claimed her vehicle was stolen. JA 61. Dix was charged in
state court with several offenses, including grand larceny/possession of a stolen
vehicle and failure to stop for a blue light. JA 159.
Dix pleaded guilty to violating 18 U.S.C. § 922(g)(1). In the presentence
investigation report (PSR), the probation office applied a four-level enhancement for
using or possessing the gun in connection with another felony offense, identified as
grand larceny/possession of a stolen vehicle. JA 160. Dix unsuccessfully objected to
the PSR on that basis, explaining that he did not commit the offense the PSR
identified because he borrowed the car with the owner’s permission. JA 177-179. The
government made no objections to the PSR. JA 177.
At the sentencing hearing, Dix objected to the enhancement, maintaining he
had permission to use the vehicle. JA 59-60. The district court declined to apply the
enhancement based on the grand larceny theory the probation office had included in
1 Citations to JA refer to the appellate record compiled in the joint appendix on
file with the Fourth Circuit. See Joint Appendix, Vol I & II, United States v. Dix, No.
19-4725, (4th Cir. filed Sept. 21, 2021) (ECF Nos. 24-25).
2
the PSR. Pet. App. 26A. So, the government raised—for the first time at the
sentencing hearing—a new enhancement theory based on possessing a firearm in
connection with Dix’s failure to stop for a blue light. Id. Dix objected to the new theory
because the PSR did not list the offense as a basis for the enhancement. JA 62. Over
that objection, the district court applied the four-level enhancement based on the
newly identified offense. JA 81-82. The result was a total offense level of 27 and a
guidelines range of 100-120 months. JA 163. The court sentenced Dix to 99 months
and three years of supervised release. JA 127-128.
On appeal, Dix argued he should have received notice of the government’s
alterative theory for the enhancement before the sentencing hearing. Pet. App. 30A,
39A. The government responded that further notice was unnecessary and never
asserted that the lack of adequate notice was a harmless error. Pet. App. 39A.
At oral argument, the Fourth Circuit—not the government—first raised the
question of harmless error. Pet. App. at 39A, 42A. The Fourth Circuit panel agreed
Dix’s rights were violated in the sentencing process. Pet. App. 32A, 39A, 42A. But a
divided panel determined—on its own, without briefing, and over a dissent—that the
violation was harmless error. Dix petitioned for rehearing en banc. The majority
granted a panel rehearing sua sponte and issued a revised opinion, again over a
dissent. Pet. App. 24A-47A.
Dix then petitioned again for rehearing en banc. Splitting evenly 7 to 7, the
Fourth Circuit denied rehearing en banc over two written dissents. Pet. App. 48A49A.
3
REASONS FOR GRANTING THE PETITION
I.
The government bears the burden to show harmless error.
This Court has repeatedly held that, when a criminal defendant makes a
timely objection to an error during their trial, the government has the burden on
appeal to prove the alleged error was harmless. See, e.g., United States v. Vonn, 535
U.S. 55, 68 (2002); O’Neal v. McAninch, 513 U.S. 432, 437-38 (1995); United States v.
Olano, 507 U.S. 725, 741 (1993). Further, “[e]very United States Court of Appeals
that adjudicates criminal cases also has come to the same conclusion,”
Commonwealth v. Hamlett, 234 A.3d 486, 495 n.1 (Pa. 2020) (Wecht, J., dissenting),
separately from their obligation to follow this Court’s precedent. See U.S. Const. art.
III, § 1; Hutto v. Davis, 454 U.S. 370, 375 (1982); see also e.g., United States v.
Jadlowe, 628 F.3d 1, 21 (1st Cir. 2010). 2
The consensus among the federal courts extends to the rationale for the rule
as well. When the Fourth Circuit held that the government has the burden because
it is “the beneficiary of the error,” United States v. Garcia-Lagunas, 835 F.3d 479, 488
(4th Cir. 2016), it was echoing this Court’s holding that the government has this
burden because it is the party seeking to deprive the other party of his or her liberty.
Shinseki v. Sanders, 556 U.S. 396, 410 (2009); accord United States v. Haidley, 400
2 See also United States v. Seng, 934 F.3d 110, 129 (2d Cir. 2019); United States
v. Franz, 772 F.3d 134, 151 (3d Cir. 2014); United States v. Ivey, 60 F.4th 99, 111 (4th
Cir. 2023); United States v. Gutierrez-Mendez, 752 F.3d 418, 426 (5th Cir. 2014);
United States v. Susany, 893 F.3d 364, 386 (6th Cir. 2018); United States v. Robinson,
724 F.3d 878, 888 (7th Cir. 2013); United States v. Davis, 859 F.3d 592, 597 (8th Cir.
2017); United States v. Esparza, 791 F.3d 1067, 1074 (9th Cir. 2015); United States v.
Russian, 848 F.3d 1239, 1248 (10th Cir. 2017); Bester v. Warden, 836 F.3d 1331, 1338
(11th Cir. 2016); United States v. Burnett, 827 F.3d 1108, 1119 (D.C. Cir. 2016).
4
F.3d 642, 644 (8th Cir. 2005) (noting the burden of proving harmless error is on the
beneficiary of the error); United States v. Cerno, 529 F.3d 926, 939 (10th Cir. 2008)
(“[T]he burden of making this showing [of harmlessness] falls on the beneficiary of
the error.”). Thus, federal courts are unanimous in their approach to, and justification
for, requiring the government to meet this “decidedly heavy burden,” United States
v. Waller, 654 F.3d 430, 438 (3d Cir. 2011), of proving that a properly preserved error
in a criminal appeal was harmless. United States v. Dominguez-Benitez, 542 U.S. 74,
81 n.7 (2004).
Likewise, state supreme courts agree that the state, “as beneficiary of the
error,” must satisfy the burden of the harmless error test. State v. DiGuilio, 491 So.
2d 1129, 1138 (Fla. 1986). 3 So, regardless of whether a criminal defendant is in
federal court or state court, the government must show an error did not affect the
outcome of the proceedings. Relieving the government of this burden would give it
“preferential treatment over other litigants.” Dix, 69 F.4th at 152 (denying reh’g en
banc) (King, J., dissenting).
3 See also, e.g., State v. Henderson, 115 P.3d 601, 607 (Ariz. 2005) (en banc);
State v. Lemanski, 242 A.3d 532, 537 (Conn. 2020); People v. Nitz, 848 N.E.2d 982,
989 (Ill. 2006); Harper v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008); State v.
Gibson, 391 So. 2d 421, 426 (La. 1980); State v. Shoen, 598 N.W.2d 370, 377 (Minn.
1999); Smith v. State, 986 So.2d 290, 300 (Miss. 2008); State v. Botelho, 83 A.3d 814,
819 (N.H. 2013); State v. Montoya, 333 P.3d 935, 946 (N.M. 2014); Pemberton v. State,
959 N.W.2d 891, 898 (N.D. 2021); State v. Jones, 156 N.E.3d 872, 875 (Ohio 2020);
Commonwealth v. Story, 383 A.2d 155, 162 n.11 (Pa. 1978).
5
II.
The lower courts disagree on whether and when a court may meet the
government’s burden for it.
A.
Lower court acceptance of sua sponte review for harmless error
is not unanimous.
In federal court, the broad consensus that the government bears the burden to
show harmless error exists side by side with the common acceptance of the
contradictory proposition that a court may sometimes “choose . . . to do the
government’s homework,” United States v. Molina, 407 F.3d 511, 524 (1st Cir. 2005),
by considering the harmlessness of a trial court’s error even if the government has
not even attempted to meet its burden. See, e.g., United States v. Adams, 1 F.3d 1566,
1575 (11th Cir. 1993) (“[T]his Court may consider the harmlessness of a trial court’s
error where it has not been briefed by the Government.”); see also, e.g., United States
v. Faulks, 201 F.3d 208, 213 (3d Cir. 2000) (“We can employ harmless error analysis
sua sponte.”). As with the proposition that the government bears the burden of
establishing the harmlessness of an error in a criminal appeal, the federal courts of
appeals unanimously allow sua sponte harmless error analysis even when the
government has not raised the issue on appeal. 4
Unlike the federal circuits, however, the states that have considered the issue
do not agree on whether their courts have the power to sua sponte consider harmless
4 United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997); United States v.
Silver, 954 F.3d 455, 459 (2d Cir. 2020) (per curiam); United States v. Brizeula, 962
F.3d 784, 799 (4th Cir. 2020); Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010); Gover
v. Perry, 698 F.3d 295, 300 (6th Cir. 2012); United States v. Giovannetti, 928 F.2d 225,
227 (7th Cir. 1991); Lufkins v. Leapley, 965 F.2d 1477, 1482 (8th Cir. 1992); United
States v. Gomez, 6 F.4th 992, 1008 (9th Cir. 2021); United States v. Samaniego, 187
F.3d 1222, 1224-25 (10th Cir. 1999); United States v. Pryce, 938 F.2d 1343, 1348 (D.C.
Cir. 1991).
6
error when the government fails to raise it. A majority of the states that have decided
the issue agree that their courts have the power to consider harmless error even when
the government has failed to argue it. See, e.g., State v. McKinney, 777 N.W.2d 555,
561 (Neb. 2010) (“It is well established that an appellate court has discretion to
overlook the State’s failure to argue that an error is harmless.”). 5
But other jurisdictions take different approaches. For example, Idaho does not
allow for sua sponte review when the government has failed to raise harmless error.
State v. Ruiz, 248 P.3d 720, 722 (Idaho 2010); see also State v. Almaraz, 301 P.3d 242,
256-57 (Idaho 2013). 6 The Court of Appeals of the District of Columbia has recognized
the general authority for a court to exercise sua sponte review, although it has failed
to explain whether their jurisdiction allows it. 7
The District of Columbia is not the only jurisdiction that has left its courts with
an unsatisfactory answer to the question of sua sponte harmless error review. The
5 See also Hassan-El v. State, 911 A.2d 385, 398 (Del. 2006); Huess v. State, 687
So. 2d 823, 823 (Fla. 1996); State v. Marshall, 882 N.W.2d 68,103-04 (Iowa 2016);
Belcher v. State, 464 P.3d 1013, 1023 (Nev. 2020); Hamlett, 234 A.3d at 492-93; Vigil
v. State, 98 P.3d 172, 179-80 (Wyo. 2004).
6 Almaraz, 301 P.3d at 263 (Jones, J., dissenting) (“Admittedly, this Court has
intimated that it will not examine sua sponte whether trial errors were harmless.”).
7 Morales v. United States, 248 A.3d 161,182 n.21 (D.C. 2021) (“It appears to
be an open question in this jurisdiction whether we have that discretion when it
comes to constitutional errors . . . [b]ut we have found no binding precedent that purports to extend this discretion to, much less exercised it in, a case involving a constitutional error.”); Rose v. United States, 629 A.2d 526, 538 (D.C. 1993) (“[T]here may
be occasions when an appellate court should bail out the government by raising sua
sponte an argument on appeal that the government has failed to raise. But this is not
such a case.”) (emphasis added).
7
North Dakota Supreme Court evaded a clear answer in Pemberton v. State,
recognizing that the government’s failure to brief harmless error should mean
forfeiture but also referencing how other jurisdictions allow their courts to raise
harmless error sua sponte. 959 N.W.2d at 898. Maryland has given a similarly
unclear answer, acknowledging the benefits of both sides without choosing one. See
State v. Jones, 771 A.2d 407, 444 (Md. Ct. Spec. App. 2001) (“The cases cited above
elucidate for us that, in a criminal case, the State can be found to have waived a valid
claim, even if the waiver leads to the reversal of a conviction. On the other hand,
when the State fails to raise an important argument, an appellate court ordinarily
has discretion to review the record or the trial judge’s ruling in its effort to reach a
sound result.”).
In State v. Porte, the Court of Appeals of Minnesota did not definitively answer
the sua sponte question, although it implied it disagreed with Giovannetti. 832
N.W.2d 303, 313 (Minn. Ct. App. 2013). 8 The court recognized that, generally, failure
to raise an issue on appeal equates to forfeiture of the issue but that the federal
circuits have agreed that Giovannetti provides an exception. Id. The court declined to
exercise sua sponte review because “our application of the Giovannetti factors does
not persuade us to make an exception to the general rule of waiver.” Id.
Thus, sua sponte harmless error review presents a jurisdictional split.
Although most states that have addressed the issue and the federal circuits agree
8 See also State v. Rodriguez, 889 N.W.2d 332, 338 (Minn. Ct. App. 2017) (citing
Porte, the court held that state had waived harmless error by not briefing the issue
on appeal and did not exercise sua sponte review to bail out the government).
8
that a court has the power to raise harmless error sua sponte when the government
forfeits the argument, at least Idaho does not allow sua sponte review. Further,
jurisdictions like Maryland, Minnesota, North Dakota, and the District of Columbia
have refused to take a definite side on the issue, adding ambiguity to the divide.
B.
Among courts that allow sua sponte review for harmless error,
there is significant disagreement about when to allow it.
Among jurisdictions holding that courts may conduct harmless error analysis
sua sponte, there is division on precisely when courts may do so. Some courts require
the case to satisfy certain criteria for the court to have discretion to conduct harmless
error review sua sponte. Others hold that they have unqualified discretion to conduct
sua sponte harmless error review without any prerequisite showing. But, within this
second line, courts divide about how to decide when to exercise that discretion.
Finally, opening a third line of decisions, the Fourth Circuit held here that a court is,
at least sometimes, obligated to raise harmless error sua sponte.
The seminal case for the first two approaches is United States v. Giovannetti,
“a leading opinion cited across numerous circuits,” on the question of sua sponte
harmless error analysis. Gover, 698 F.3d at 300 (6th Cir. 2012); see also United States
v. Gonzalez-Flores, 418 F.3d 1093, 1100 (9th Cir. 2005) (“Several circuits have
followed or approvingly cited Giovannetti.”). In Giovannetti, the Seventh Circuit held:
[W]e have discretion to overlook a failure to argue harmlessness, and in
deciding whether to exercise that discretion the controlling
considerations are [1] the length and complexity of the record, [2]
whether the harmlessness of the error or errors found is certain or
debatable, and [3] whether a reversal will result in protracted, costly,
and ultimately futile proceedings in the district court.
928 F.2d 225, 227 (1991) (per curiam).
9
1.
Approach One: The Giovannetti factors govern when
courts have discretionary authority to raise harmless
error sua sponte.
Some courts see the Giovannetti factors as testing the outer bound of their
ability to raise harmless error sua sponte, and they require satisfaction of some or all
of those factors before they hold they have discretion to conduct such review. That is,
the Giovannetti factors test when courts may reach harmless error sua sponte.
a.
Circuits
At least four circuits view the Giovannetti factors as prerequisites to their
ability to raise harmless error sua sponte, requiring satisfaction of some or all of them
before they have discretion to conduct sua sponte harmless error review. For example,
in Wyoming v. Livingston, the Tenth Circuit held that it “may . . . address harmless
error sua sponte if three conditions are met,” before citing the Giovannetti factors in
previous circuit case law. 443 F.3d 1211, 1226 (10th Cir. 2006) (citing Samaniego, 187
F.3d at 1224-25); accord United States v. Holly, 488 F.3d 1298, 1312 (10th Cir. 2007)
(Kelly, J., concurring in part and dissenting in part) (“In recognition of the difficulty
of conducting harmless error review sua sponte, we have previously cabined our
discretion to do so with the [Giovannetti] factors.”).
Similarly, in Lufkins v. Leapley, the Eighth Circuit held that a court has the
discretion to overlook the government’s failure to argue harmlessness only “under
certain circumstances,” which it identified as the three laid out in Giovannetti. 965
F.2d 1477, 1481 (8th Cir. 1992) (citing Giovannetti, 928 F.2d at 227). Then, in United
States v. Montgomery, the court held that it has discretion to overlook the
government’s failure to argue harmlessness “after taking into consideration” the
10
Giovannetti factors. 100 F.3d 1404, 1407 (8th Cir. 1996) (citing Lufkins, 965 F.2d at
1481) (emphasis added). Later Eighth Circuit decisions have similarly treated the
Giovannetti factors as required conditions for sua sponte harmless error analysis, not
as mere helpful guides. See, e.g., United States v. Ghane, 673 F.3d 771, 787 (8th Cir.
2012) (noting that courts may raise harmless error sua sponte “in certain
circumstances” dependent on the Giovannetti factors); United States v. Hansen, 944
F.3d 718, 724 n.3 (8th Cir. 2010) (noting that the court undertakes sua sponte
harmless error analysis within the bounds of the Giovannetti factors); United States
v. Jacobs, 97 F.3d 275, 283 n.9 (8th Cir. 1996) (noting that courts “may undertake
[harmless error] analysis sua sponte” only after assessing the case in light of
Giovannetti).
The Ninth Circuit also allows sua sponte consideration of harmless error only
within the Giovanetti parameters. Generally, when the government fails to address
harmlessness in its brief on appeal, the Ninth Circuit deems the issue waived and
will not consider the harmlessness of any error it finds. See, e.g., United States v.
Kloehn, 620 F.3d 1122, 1130 (9th Cir. 2010); Gonzalez-Flores, 418 F.3d at 1100;
United States v. Varela-Rivera, 279 F.3d 1174, 1180 (9th Cir. 2002). The Ninth Circuit
applies this rule so strictly that it still considers the government to have waived
harmless error even if the government mentions harmless error in its brief but fails
to produce a “developed theory” on the subject. United States v. Murguia-Rodriguez,
815 F.3d 566, 573 (9th Cir. 2016). The court has justified this approach by holding
11
that “it is the government’s burden to establish harmlessness, and it cannot expect
us to shoulder that burden for it.” Gonzalez-Flores, 418 F.3d at 1100.
The Ninth Circuit has, however, carved out an exception to this “general and
consistent rule.” Murguia-Rodriguez, 815 F.3d at 573. The court does not have
unlimited ability to consider harmless error sua sponte, but it does have “discretion
to consider harmlessness sua sponte in extraordinary cases.” United States v. Brooks,
772 F.3d 1161, 1171 (9th Cir. 2014); Murguia-Rodriguez, 815 F.3d at 57; Kloehen, 620
F.3d at 1130; Gonzalez-Flores, 418 F.3d at 1100. The court held that it “should
consider three factors to identify such [extraordinary] cases,” and cited the Giovanetti
factors. Brooks, 772 F.3d at 1171; accord Gomez, 6 F.4th at 1007 (holding that the
court “may raise harmless error sua sponte in consideration of” the Giovannetti
factors).
The Ninth Circuit cited all three Giovannetti factors approvingly to identify
the extraordinary cases in which it has discretion to review harmless error sua
sponte, but it held that the second factor—the extent to which the harmlessness is
certain or debatable—is “of particular importance.” Gonzalez-Flores, 418 F.3d at
1101. In a partial dissenting opinion, which the Ninth Circuit cited favorably when it
adopted sua sponte harmless error review in Gonzalez-Flores, Judge Berzon noted
that, if the harmlessness of the alleged error is even somewhat debatable, it “is
enough, under the Giovannetti line of cases to bar sua sponte harmless error review.”
United States v. Rodriguez-Preciado, 399 F.3d 1118, 1143 (9th Cir. 2005) (Berzon, J.,
dissenting in part); Gonzalez-Flores, 418 U.S. at 1101 (citing Rodriguez-Preciado, 399
12
F.3d at 1143 (Berzon, J., dissenting in part)). If the certainty of the harmlessness is
“at all debatable,” the second Giovannetti factor is not satisfied, and the case is not
extraordinary enough to qualify for sua sponte harmless error review. See GonzalezFlores, 418 U.S. at 1101.
The Ninth Circuit limits sua sponte harmless error analysis to rare cases
because “the practice may unfairly tilt the scales of justice by authorizing courts to
construct the government’s best arguments for it without providing the defendant a
chance to respond.” Id. (citing Stuard v. Stewart, 401 F.3d 1064, 1067 (9th Cir. 2005)).
To serve this policy, the Ninth Circuit operates within the Giovannetti parameters
and requires at least the second factor to be satisfied: “We therefore conclude that
sua sponte recognition of an error’s harmlessness is appropriate only where the
harmlessness of the error is not reasonably debatable.” Id. (italics in original). C.f.,
Giovannetti, 928 F.2d at 227 (“[T]he controlling considerations [include] whether the
harmlessness of the error or errors found is certain or debatable.”).
The Eleventh Circuit shares the Ninth Circuit’s requirement of satisfaction of
the second Giovannetti factor. See Adams, 1 F.3d at 1576. Thus, it considers itself to
have discretion to conduct harmless error review sua sponte only “[i]n some contexts.”
Harris v. Lincoln Nat’t Life Ins. Co., 42 F.4th 1292, 1298 (11th Cir. 2022).
Thus, in the Eighth, Ninth, Tenth, and Eleventh Circuits, the Seventh Circuit’s
Giovannetti factors are not mere guides to help a court decide when it should exercise
its unlimited discretion. They are prerequisites to the court having discretion at all.
13
b.
States
Similarly, many state courts use the Giovannetti test to determine when they
have authority to exercise sua sponte harmless error review. Unless those courts
conclude the Giovannetti test is met, they hold they lack discretion to decide a
harmless error question the government has not raised.
For example, Wyoming uses the three Giovannetti factors for that purpose. In
Harlow v. State, the Supreme Court of Wyoming exercised sua sponte review because
the three Giovanetti factors applied to that case. 70 P.3d 179, 195 (Wyo. 2003). In
Wyoming, “a reviewing court may consider” the Giovannetti factors, Daniel v. State,
78 P.3d 205, 212 (Wyo. 2003), and has “considerable discretion in deciding sua sponte
whether to engage in a harmless error analysis,” Vigil, 98 P.3d at 180.
Wyoming is not alone. The Supreme Court of Nevada has also held that the
presence of the Giovannetti factors presents a situation where courts can
discretionarily exercise sua sponte harmless error review. See Belcher, 464 P.3d at
1024. Likewise, the Supreme Court of Iowa ruled courts can choose to exercise sua
sponte harmless error review when the Giovannetti factors apply. See Marshall, 882
N.W.2d at 103-03 (citing In re Det. Of Blaise, 830 N.W.2d 310 (Iowa 2013)). Both Iowa
and Nevada agree with the Ninth Circuit that the second of the three Giovannetti
factors are the most important, but the Supreme Court of Wyoming did not specify if
any single factor should receive more weight. 9
9 Compare Marshall, 882 N.W.2d at 104, and Belcher, 464 P.3d at 1024, with
Harlow, 70 P.3d at 195.
14
2.
Approach Two: Courts have unlimited discretion to raise
harmless error sua sponte, but Giovannetti or some other
test guides the exercise of courts’ discretion.
Under another line of decisions, courts set no limit on their discretion to reach
harmless error sua sponte. Within this line of decisions, instead of testing to
determine whether they have discretion, courts apply tests to determine whether
they should exercise that discretion. But the courts are split as to whether the
Giovannetti test is the exclusive test for deciding when to exercise this discretion or
whether the Giovanetti factors are merely three useful considerations among many.
a.
Circuits
Unlike the four other circuits multiple state courts that hold that they have
discretion to review for harmless error sua sponte only after concluding that some or
all the Giovannetti factors are satisfied, at least seven circuits hold they have
unqualified discretion to do so. But there is division even within these circuits, with
that division spawning three different analyses. The Third Circuit uses Giovannetti
as the sole guide when deciding whether to exercise its unlimited discretion. Five
other circuits see the Giovannetti factors as useful, but not exclusive, guides. Finally,
the Second Circuit holds that it has unqualified discretion to conduct harmless error
review sua sponte, but it has identified no factors to use when deciding whether to
exercise that discretion.
i.
The Third Circuit relies exclusively on the
Giovannetti factors.
First, the Third Circuit considers itself to have unlimited discretion to conduct
harmless error review sua sponte, and it relies on only the Giovannetti factors as
15
appropriate considerations when deciding whether it should exercise that discretion.
In United States v. McLaughlin, the court held that it had discretion to consider
unbriefed harmless error without qualifying that discretion in any way. 126 F.3d 130,
135 (3d Cir. 1997). And it has reiterated this unrestricted approach in later decisions.
See, e.g., Faulks, 201 F.3d at 213 (“We can employ harmless error analysis sua
sponte.”); Guadalupe v. Att’y Gen. U.S., 951 F.3d 161, 166 n.30 (3d Cir. 2020) (noting
that the court may consider the question even if the government does not address it
without imposing any parameters). When the court adopted discretionary harmless
error review in McLaughlin, it identified only the Giovanetti factors as guides to help
“[i]n deciding whether to exercise that discretion.” 126 F.3d at 135; accord United
States v. Shavers, 693 F.3d 363, 388 (3d Cir. 2012), vacated on other grounds 133 S.
Ct. 2877 (2013).
Thus, in Faulks, the Third Circuit declined to exercise its discretion because it
was not persuaded it should do so under the Giovannetti factors. 201 F.3d at 213. The
court did not consider other reasons to conduct harmless error review sua sponte as
some other courts do. Compare id., with Rose, 104 F.3d at 1414. Instead, it held that
Faulks was “an inappropriate case” for sua sponte harmless error review due to the
failure to satisfy the Giovannetti factors. 201 F.3d at 213. Similarly, in United States
v. Davis, the court refused to raise harmless error sua sponte because it saw no reason
to do so when examining the case under the Giovannetti factors. 726 F.3d 434, 445
n.8 (3d Cir. 2013).
16
ii.
Five circuits treat the Giovannetti factors as
useful but non-binding considerations.
Second, five circuits use the Giovannetti factors as merely three factors, among
many, to use when considering whether to exercise discretion to conduct harmless
error review sua sponte. In Giovannetti itself, the Seventh Circuit first established
its unqualified discretion to conduct harmless error review sua sponte without any
prerequisite demonstration “for the sake of protecting third-party interests including
. . . systemic interests.” Giovannetti, 928 F.2d at 226. When announcing the
Giovannetti factors, the Seventh Circuit, unlike later courts, compare Livingston, 443
F.3d at 1226, was not articulating rigid prerequisites but was instead offering factors
to help “in deciding whether to exercise [its] discretion” in service of the overarching
policy of protecting third-party and systemic interests. Giovannetti, 928 F.2d at 227.
In the intervening decades since the Giovannetti decision, the Seventh Circuit
has affirmed its view that it has unlimited discretion to review harmless error sua
sponte and that its three factors are simply guides in service of its policy-goal of
protecting third-party interests. See Bourgeois v. Watson, 977 F.3d 620, 632 (7th Cir.
2020) (noting courts may exercise their discretion to serve this overarching policy goal
without requiring any ex-ante showing); United States v. Arrellano, 757 F.3d 623, 635
(7th Cir. 2014) (noting courts may overlook failure to argue harmlessness if it serves
the policy goal without imposing any prerequisite showing); Sanders v. Cotton, 398
F.3d 572, 582 (7th Cir. 2005) (noting it would usually overlook waiver of a
harmlessness argument only when the Giovanetti factors were met).
17
The First Circuit simply holds that it has unqualified “discretion on direct
appeal to . . . consider the issue of harmlessness sua sponte.” Rose, 104 F.3d at 1414;
accord United States v. Magee, 834 F.3d 30, 38 (1st Cir. 2016); United States v.
Burgos-Montes, 786 F.3d 92, 114 (1st Cir. 2015). In Rose, the court anticipated many
later decisions from its sister circuits when it held, “[w]hile we find helpful the
reasoning of the Seventh Circuit, we do not restrict ourselves to the Giovannetti test.”
104 F.3d at 1415. To support this proposition, the First Circuit cited the District of
Columbia Circuit’s decision in United States v. Pryce, in which that court similarly
approved of the “general approach of Giovannetti” without confining itself to the three
factors. 938 F.2d 1343, 1348 (D.C. Cir. 1991) (opinion of Williams, J.).
In the Fifth Circuit, the court did not provide any further details when it held
that it may conduct harmless error review sua sponte “for obvious reasons,” implying
that court sees it as inherently part of its role as an appellate court. United States v.
Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010). The court has reasoned that it can
conduct such a review as a matter of right, noting that it “ordinarily [has] the
discretion to decide legal issues that are not timely raised” without any limits. United
States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992); accord Atkins v. Hooper, 979
F.3d 1035, 1049 (5th Cir. 2020) (“[W]e have the discretion to reach the issue [of
harmless error] even sua sponte.”); Jones, 600 F.3d at 541 (5th Cir. 2010) (“The court
can, in its discretion, consider the harmless error defense sua sponte.”). The Fifth
Circuit held that Giovannetti illustrates its powers well, Vontsteen, 950 F.2d at 1091,
but the court does not treat the factors as mandatory, having raised harmless error
18
sua sponte to “prevent a miscarriage of justice,” Rodriguez, 602 F.3d at 360, which is
not one of the Giovanetti factors, see Giovannetti, 928 F.2d at 227.
Similarly, the Sixth Circuit has held that it has discretion to conduct harmless
error review sua sponte “and when a court determines whether to do so, it should
utilize the Giovannetti factors among other relevant considerations.” Gover, 698 F.3d
at 301. The court was careful to emphasize courts should consider Giovannetti “when
deciding whether to exercise its discretion; however, the determination is not limited
to those factors alone.” Id.
iii.
The Second Circuit has never articulated a
test for deciding when to exercise discretion.
Third, the Second Circuit agrees with Giovannetti that courts have unqualified
discretion to raise harmless error sua sponte, but it has articulated no factors for
choosing when to use that discretion. The court has held: “We have discretion to
consider the harmlessness of an alleged error even though the Government has not
argued this line of defense,” without placing any qualifications or limits on that
discretion. United States v. Dolah, 245 F.3d 98, 107 (2d Cir. 2001) abrogated on other
grounds by Crawford v. Washington, 541 U.S. 36, 64 (2004); accord United States v.
Mason, 692 F.3d 178, 184 (2d Cir. 2012) (noting the court’s unqualified discretion to
review for harmless error sua sponte). So unlike some of its sister circuits, compare
Livingston, 443 F.3d at 1226, the Second Circuit has seemingly opted for an ad hoc,
case-by-case determination of when to exercise its discretion. See Dolah, 245 F.3d at
107; Mason, 692 F.3d at 184; see also Silver, 954 F.3d at 459 (per curiam)
(acknowledging the existence of the Giovannetti factors but not assessing or using
19
them). The Second Circuit’s approach to sua sponte harmless error analysis is
perhaps best summed up by United States v. Arrous, when the court conducted such
a review because “common sense considerations compel” it. 320 F.3d 355, 356 (2d Cir.
2003).
b.
States
Multiple states rely on Giovannetti, or a Giovannetti progeny case, as a
rationale for sua sponte harmless error review but do not explain how to apply the
Giovannetti factors in their jurisdiction or when sua sponte review is appropriate.
Although the courts in these states agree they can exercise sua sponte review, they
have given no guidance on how this review should work. This causes, and will
continue to cause, inconsistencies among the states, as courts grapple with whether
and when to consider harmless error sua sponte.
For example, the majority of the Supreme Court of Pennsylvania endorsed sua
sponte harmless error review because of Giovannetti, but it did not mention any of
the factors or how courts should apply the test. Hamlett, 234 A.3d at 492-93. Not all
the justices were pleased with this answer. One Justice pointed out that “[i]mportant
questions remain to be resolved in future cases, including whether appellate courts
are required to order supplemental briefing when invoking the harmless error
doctrine.” Id. at 494 (Donohue, J., concurring). Pennsylvania courts are left with no
answer to the question of “[w]hat is the relevant test for determining whether an
error affected the outcome when harmless error is invoked sua sponte?” Id.
Another Justice went further in criticizing the court’s confusing application of
sua sponte review:
20
But I find no practical limitations here, no standard, no rubric by which
to distinguish an “appropriate” case from an inappropriate one, and no
reason to expect that this purported “exception” to a litigant's burden
will prove to be anything other than the norm, to the extent that the
exception has not swallowed the rule already.
Id. at 496 (Wecht, J., dissenting)
Pennsylvania is not the only state that has failed to give its appellate courts a
satisfactory explanation for sua sponte harmless error review. The Supreme Court of
Nebraska used sua sponte review in McKinney because the Giovannetti factors
applied to that case, but it conceded that it had no explanation for how this review
applied. 777 N.W.2d at 561. 10 Delaware and Florida have done even less. The
supreme courts of both states briefly concluded they had the power to raise harmless
error on their own because federal appellate courts had done it. See Hassan-El, 911
A.2d at 398; Huess, 687 So. 2d at 824. But neither court attempted to explain when
or how sua sponte review can or should occur.
Thus, even states that agree courts can exercise sua sponte harmless review
are divided about when and how this review can and should occur. States like Iowa,
Nevada, and Wyoming have applied the Giovannetti test much like the federal
circuits. Other states have not explained how those factors or other factors apply.
Further, in states like Delaware and Florida, those factors do not apply at all.
10 McKinney, 777 N.W.2d at 561. (“Our authority to consider harmless error
sua sponte may not have been expressly discussed in our opinion or in denying
McKinney's motion for rehearing. But it was necessarily decided, both in our denial
of the motion for rehearing and implicitly with our finding of harmless error
in McKinney I.”).
21
3.
Approach Three: Courts must perform a sua sponte review
for harmless error.
Finally, the Fourth Circuit adopted a third approach to sua sponte harmless
error analysis here. On appeal from the District of South Carolina, the court assessed
whether it was error for Dix to receive a sentencing enhancement based on an offense
not identified in the PSR. Dix, 64 F.4th at 235. The court held: “This, we conclude
was procedural error, and therefore we must determine whether it was harmless.” Id.
(emphasis added). The Fourth Circuit’s decision here, that it is required to consider
harmless error sua sponte contrasts with the decisions of its sister circuits that—
despite their points of disagreement—unanimously hold that sua sponte harmless
error review is discretionary. See, e.g., Harris, 42 F.4th at 1298 (“[T]hat discretion is
not an obligation, and we choose not to assess the matter of prejudice here without
briefing.”).
To reach its conclusion, the Fourth Circuit relied on a reading of Federal Rule
of Criminal Procedure 52(a) that other circuits have rejected. That Rule states: “Any
error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded.” Fed. R. Crim. P. 52(a). Other circuits have considered the same
language in Rule 52(a) and rejected the argument that a court is ever obligated to
raise harmless error sua sponte. For example, in Giovannetti, the Seventh Circuit
held that the mandatory language of Rule 52(a) is simply a “general feature of legal
rules,” that exists against a background of general understanding of invoking or
waiving the rule’s benefits. Giovannetti, 928 F.2d at 226. The court identified two
major issues with compelling a court to review for harmless error sua sponte. Id.
22
First, it found troubling the idea that a court could ever be compelled to review for
harmless error without “the guidance of the parties on the question whether
particular errors were harmless.” Id. Second, it did not want to “invite salami tactics”
by allowing the government to forgo arguing harmless error but always having
recourse to seek rehearing on that basis. Id. Those concerns led the court to hold that
sua sponte harmless error review is a discretionary prerogative it exercises based on
overarching policy goals. Id.
The Fourth Circuit may be alone among the federal circuits in holding that sua
sponte harmless error analysis is an obligation but at least one state has come to the
same conclusion. In Goodwin v. State, the Supreme Court of Florida held that there
is a “solemn obligation of the Court to perform an independent harmless error
review.” 751 So. 2d 537, 545 (Fla. 1999). The court held that this obligation persists
“even when the state has not argued that the complained of error was harmless.” Id.
(citation omitted). In Knowles v. State, the court similarly referred to this review as
a non-discretionary “duty of a reviewing court to determine harmless error ‘regardless
of any lack of argument on the issue by the state.’” 848 So. 2d 1055, 1057 (Fla. 2003)
(quoting Goodwin, 751 So. 2d at 545). In the decades since Goodwin, Florida courts
have routinely affirmed that sua sponte harmless error analysis is an obligation
incumbent on all courts. See, e.g., McCray v. State, 919 So. 2d 647, 649 (Fla. Dist. Ct.
App. 2006) (“Although [the government] does not assert harmless error in its brief,
we must address that issue.”).
*
*
23
*
Given the tension between the government bearing the burden to show
harmless error and allowing courts to reach the issue sua sponte, and given the
nature of the rights at issue, the Court should resolve the division in the lower courts.
III.
The petition raises an important question of federal law that this
Court should address.
A.
Courts raising harmless error sua sponte implicates a criminal
defendant’s constitutional due-process rights.
Procedural due process has been a foundational legal principle since this
nation’s inception. U.S. Const. amend. V; accord U.S. Const. amend. XIV, § 1. This
Court recognizes that “[e]ngrained in our concept of due process is the requirement
of notice.” Lambert v. People of the State of California, 355 U.S. 225, 228 (1957).
Although the Court noted Lambert dealt with civil litigation, they determined the
principle was “equally appropriate” in criminal cases. Id.; accord Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 313-16 (1950); Hagar v. Reclamation Dist. No.
108, 111 U.S. 701, 708 (1884).
The use of the phrase “due process of law” in the Constitution is meaningful.
It is “intended to secure the individual from the arbitrary exercise of the powers of
government, unrestrained by the established principles of private rights and
distributive justice.” Bank of Columbia v. Okely, 17 U.S. (4 Wheat.) 235, 244 (1819).
It is worth saying twice: due process “secure[s] the individual from the arbitrary
exercise of the powers of government.” Id.
As well, courts should not “want ‘to encourage the government’s laxness and
failure to follow . . . clear, applicable precedent’ assigning it the burden of establishing
harmlessness.” Belcher, 464 P.3d at 1023 (quoting United States v. Rodriguez, 880
24
F.3d 1151, 1163 (9th Cir. 2018)). That is no radical proposition. In fact, members of
this Court have had much the same idea. “An automatic application of harmless-error
review in case after case, and for error after error, can only encourage prosecutors to
subordinate the interest in respecting the Constitution to the ever-present and
always powerful interest in obtaining a conviction in a particular case.” Rose v. Clark,
478 U.S. 570, 588-89 (1986) (Stevens, J., concurring).
A court considering harmless error sua sponte raises fairness concerns. That
review “may unfairly tilt the scales of justice by authorizing courts to construct the
government’s best arguments for [harmlessness] without providing the defendant
with a chance to respond.” Belcher, 464 P.3d at 1023 (quoting Gonzalez-Flores, 418
F.3d at 1101). When a court engages in sua sponte harmless error review, not only
does it appear the court is aiding the government in prosecuting the defendant, but
it appears the court is precluding the defendant’s opportunity to defend their position.
Even if it appears the error did not harm the proper outcome of the trial,
criminal procedure has a broader ethical vision that “encompasses non-result-related
interests such as providing defendants with space for autonomous decisionmaking,
enforcing compliance with nondiscrimination norms, and making transparent the
inner workings of criminal justice.” Justin Murray, A Contextual Approach to
Harmless Error Review, 130 Harv. L. Rev. 1791, 1794 (2017). Harmless error doctrine
itself already receives criticism for neglecting to consider values besides the accuracy
of criminal convictions, important values such as “restraining human rights abuses
and protecting the dignity of the accused.” John M. Greabe, The Riddle of Harmless
25
Error Revisited, 54 Hous. L. Rev. 59, 120 n.324 (2016). Due process should protect
those rights. Compounding harmless error doctrine with courts raising harmless
error on the government’s behalf exacerbates the danger of loss of the rights due
process is meant to protect.
B.
The differences between the lower court’s approaches are
meaningful and result in arbitrary differences in due process
protections.
Further, the differences between the lower courts’ approaches result in
arbitrary differences in due process protection. When some jurisdictions allow sua
sponte harmless error review but others do not, when jurisdictions apply different
tests to determine if they have discretion to decide the issue and when they should
exercise any such discretion, defendants receive differing constitutional due-process
protection depending on the jurisdiction in which they find themselves. Those
defendants in jurisdictions where courts readily “do the government’s homework,”
Molina, 407 F.3d at 524, by considering harmless error when the government has not
attempted to meet its burden are less protected than those in jurisdictions that
decline to raise harmless error sua sponte or do so only under more limited
circumstances.
For example, if Dix had appealed his case to the Tenth Circuit, precedent would
have required the court to establish that the case satisfied all three of the Giovannetti
factors before it could conduct harmless error analysis sua sponte. See Livingston,
443 F.3d at 1226 (citing Samaniego, 187 F.3d at 1224-25). Had he appealed in the
Third Circuit, the court would have assessed the same factors to determine whether
it should conduct harmless error review. See McLaughlin, 126 F.3d at 135. In both
26
instances, it would have been significantly less likely that the government would
prevail in his appeal based on an argument the government did not make, as
happened here. Had Dix been subject to prosecution in Idaho, the appellate court
would never have conducted sua sponte harmless error review at all. See Ruiz, 248
P.3d at 722.
Courts serve due process better by “plac[ing] the duty of care to prevent errors
on the party who commits the error or who benefits from the judge’s error.” Darryl K.
Brown, Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in
Criminal Process, 98 Tex. L. Rev. 625 (2020). At the very least, if courts raise
harmless error sua sponte, they should uniformly apply clear factors, such as the ones
from Giovannetti, to increase transparency, consistency, and faith in due process.
C.
Sua sponte harmless error review raises separation of powers
concerns and allows the executive to avoid bearing a minor
burden by imposing a significant burden on the judiciary.
It is imperative that courts treat litigants the same, no matter who those
litigants may be. For example, the Fourth Circuit has held litigants other than the
government accountable when they forfeit arguments on appeal by failing to raise
them. See United States v. Hudson, 673 F.3d 263, 268 (4th Cir. 2012) (Niemeyer, J.)
(noting that failure by a criminal defendant to raise an issue in their opening brief
constitutes a proper waiver); Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver.,
Inc., 974 F.2d 502, 505 (4th Cir. 1992) (Wilkinson, J.) (observing that “[t]he most
rudimentary procedural efficiency demands that litigants present all available
arguments to an appellate court on the first appeal”).
27
True, the United States is not the average litigant, but that cuts both ways.
The Court has discussed the special role of a federal prosecutor: their interest “in a
criminal prosecution is not that it shall win a case, but that justice shall be done.”
Berger v. United States, 295 U.S. 78, 88 (1935). Thus, “while he may strike hard
blows, he is not at liberty to strike foul ones.” Id. In sum, prosecutors are responsible
for upholding the integrity of the law just as much as they are responsible for
enforcing the law.
Moreover, the Court has treated government entities the same as other
litigants when it comes to forfeiture. For example, this Court has held the State
accountable when it fails to raise an argument in other circumstances. See, e.g.,
Schiro v. Farley, 510 U.S. 222, 229 (1994) (holding that although this Court
“undoubtedly [has] the discretion” to analyze a defense not raised by the State, the
failure to raise the defense is “significant” and thus the Court would not analyze the
argument).
Separation of the judiciary from the executive is important, actually and in
perception. Prosecutors argue the case, but judges must remain neutral arbiters of
justice. That separation is most important in criminal proceedings, where citizens’
liberty interests are at stake. When courts engage in sua sponte harmless error
review, especially without clear and uniform guidelines to follow, they risk breaching
that separation and come “perilously close to exercising an executive branch
function.” Rose, 629 A.2d at 535. This step into the executive branch’s function by the
28
courts “would be inconsistent with the neutrality expected of the judiciary in our
adversary system of justice.” Id.
Further, sua sponte harmless error review imposes burdens on appellate
courts, and it is improper for the executive to offload its burden to show an error is
harmless onto the judiciary. Not only because it is unfair to the defendant, who cannot
rebut the assertion the error is harmless, but the review also “imposes greater
burdens on an appellate court, which would need to identify and become familiar with
the relevant parts of the trial record without the benefit of briefing from the parties.”
Porte, 832 N.W.2d at 313 (citing Gonzalez-Flores, 418 F.3d at 1100-01); accord
Belcher, 464 P.3d at 1023 (noting the court should not overlook the burden sua sponte
harmless error review places on the reviewing court). Thus, the Court should disfavor
sua sponte review.
Not that sua sponte harmless error review has no benefits. Other courts have
noted that not applying sua sponte harmless error review would “elevate form over
substance and hamper the goal of efficient use of judicial resources.” McKinney, 777
N.W.2d at 561 (Neb. 2010). As it stands, trial courts avoid retrying a case when the
prosecution fails to raise harmless error and the appellate courts determine the harm
sua sponte.
But that is, at best, a zero-sum benefit to the judiciary. Trial courts save
resources, but only at the expense of appellate courts expending additional resources.
And requiring prosecutors merely to raise harmless error in their appellate briefs is
not imposing an Atlas-like burden on the executive. Given that the burden on the
29
executive is low and the net burden–benefit to the judiciary zeroes out, criminal
defendants’ due-process rights should tilt the analysis in favor of at least limiting sua
sponte harmless error analysis to extraordinary cases based on a clear standard.
D.
The issue is recognized, widespread, and recurring.
The potential problems and divisions resulting from sua sponte review are
nothing new. Legal scholarship has touched on the issue, and the D.C. Circuit’s
decades-old decision in Pryce, anticipated the current divide among the lower courts.
As scholars have noted, little incentive exists for prosecutors not to commit
error in trial if they can not only rely on the harmless error doctrine but on the court
to raise harmless error on its own. This recognition of the low stakes of prosecutorial
error “strongly suggests that the courts do not care very much about prosecutorial
misconduct.” Mary Nicol Bowman, Mitigating Foul Blows, 49 Ga. L. Rev. 309, 351-52
(2015). Increasingly, the government can predict that appellate courts will ignore its
misconduct if there is sufficient evidence to prove the defendant’s guilt. Id. As long
as the evidence of the defendant’s guilt is clear, the harmless error doctrine coupled
with the government not needing to meet its burden to raise it, unintentionally
encourages prosecutorial error since the conviction will likely be affirmed regardless.
Id. This system incentivizes prosecutors neither to refrain from error nor to meet
their burden to raise harmless error. Id. Instead, it fosters incongruence between
courts denouncing prosecutorial misconduct but refusing to hold the government
responsible. Id.
In addition, scholars have often noted the issues that arise when courts step in
without the urging of prosecution. “Prosecutorial misconduct may benefit the
30
prosecution at trial, so the prosecution should bear the burden of showing that it did
not actually receive a benefit from this behavior.” Bowman, supra, at 374-75. The
government, therefore, should be fulfilling its obligations to the court instead of
relying on judges to fix their omissions. But with liberal or mandatory sua sponte
harmless error review, prosecutors are often saved from their own mistakes.
Conversely, restraining courts from engaging in sua sponte harmless error review, or
at least limiting the use of that review to exceptional circumstances, maintains
separation of powers and the integrity of the Federal Rules of Criminal Procedure.
In sum, “it would be unfair to allow the prosecutor to break rules of conduct
and then require that the defendant prove the misconduct changed the outcome of
the proceeding.” Id. (quoting Michael T. Fisher, Harmless Error, Prosecutorial
Misconduct, and Due Process: There’s More to Due Process than the Bottom Line, 88
Colum. L. Rev. 1298, 1320 (1988)). Another scholar noted the current “harmless error
standard . . . encourages rule-breaching trial tactics” by allowing prosecutors to have
a safety net: the courts. Brown, supra, at 645. When appellate courts undertake this
review completely of their own accord and without any real standard of application,
“appellate courts signal to prosecutors that committing such errors is cost free.” Id.
Further, the division in the lower courts is nothing new. In fact, a fractured
panel of the D.C. Circuit reached much the same division that exists today among
appellate courts. In that decision, Judge Silberman dissented in part because he
disagreed that the defendants’ “appeals [could] be rejected under the harmless error
doctrine notwithstanding the government’s inexplicable failure to argue that the
31
error was harmless.” See Pryce, 938 F.2d at 1352 (Silberman, J., dissenting in part).
In short, Judge Silberman would have held that the government forfeits harmless
error when it fails to raise in on appeal, much the same stance Idaho takes today.
Judge Randolph’s concurrence took the opposite position. Judge Randolph reasoned,
relying in large part on Federal Rule of Criminal Procedure 52(a), that sua sponte
harmless error review is mandatory. See id. at 1351 (Randolph, J., concurring). That
is much the same stance the Fourth Circuit took here. Finally, writing for the court,
Judge Williams reasoned, relying on Giovanetti, that sua sponte harmless error
review was discretionary. See id. at 1347-48 (Williams, J. op.).
More than thirty-two years have passed since Pryce, yet state and federal
courts remain divided along the same general lines as the Pryce panel. Only this
Court can resolve this long-standing division.
E.
The Fourth Circuit’s en banc decision shows the importance of
the issue and highlights the potential arbitrary nature of
outcomes on this issue.
A federal court of appeals taking a case en banc is no small feat. This is by
design. The Federal Rules of Appellate Procedure state: “[a]n en banc hearing or
rehearing is not favored and ordinarily will not be ordered unless: (1) en banc
consideration is necessary to secure or maintain uniformity of the court's decisions;
or (2) the proceeding involves a question of exceptional importance.” Fed. R. App. P.
35(a). “Cases where the panel merely got it wrong do not satisfy the standard.” Amy
C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 1046 (2003). Not
only is the burden high, but judges typically disfavor granting en banc review because
they believe it is “burdensome and inefficient.” Id. Due to those factors, “it is
32
unsurprising that the courts of appeals resolve fewer than one percent of their cases
en banc.” Id.
Consistent with the idea that en banc review is rare, the Fourth Circuit
explained in 2019 that it grants a rehearing en banc in “approximately 0.3% of the
cases in which it is requested.” 11 As the court explained, the court grants petitions for
hearing en banc only when either the panel decision conflicts with the Supreme Court
or Fourth Circuit precedent or the decision is exceptionally important in some way,
such as conflicting with other circuits’ authoritative decisions. 12
Recent statistics are consistent. The Administrative Office of the U.S. Courts
published that the Fourth Circuit had fifty-four petitions for rehearing per active
judge in 2022. 13 The Fourth Circuit has fifteen judgeships, equaling 810 petitions for
rehearing. 14 In 2022, the Fourth Circuit heard three cases en banc. 15 Therefore, the
Fourth Circuit granted rehearing in 0.37% of cases in which parties requested it.
Given the data, the even 7-7 split in the decision to rehear Dix’s case is even
more important. Half of the judges in the Fourth Circuit considered this issue so
11 United States Court of Appeals for the Fourth Circuit, FAQs – Statistics,
https://perma.cc/A6J2-Z9TS.
12 Id.
13 United States Courts,
Federal Court Management Statistics – Summary
(Dec. 31, 2022), https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_
appsumary1231.2022.pdf.
14 Id.
United States Court of Appeals for the Fourth Circuit, En Banc Cases,
https://www.ca4.uscourts.gov/opinions/en-banc-cases#2022.
15
33
important that they were willing to invest time and resources to hearing it en banc.
The dissenting judges felt so strongly about the issue that four judges signed one
dissenting opinion, and two of the same judges signed another. Dix, 69 F.4th at 150,
154 (4th Cir. 2023).
In one dissent, Judge King, joined by the Chief Judge and two others, explained
that both factors used to determine whether en banc is warranted are satisfied in
Dix’s case. Id. at 150 (King, J., dissenting). Judge King noted the decision in Dix’s
case directly conflicts with Brizuela, 962 F.3d at 789. Dix, 69 F.4th at 151 (King, J.,
dissenting). Brizuela held the court should avoid raising harmless error sua sponte
when “the question of harmless error is close.” 962 F.3d at 799. Judge King then
explained this question is exceptionally important because “the panel majority
consistently ignored . . . the actual prejudice” Dix suffered. Dix, 69 F.4th at 153 (King,
J., dissenting). In sum, “the majority’s decision—which either ignores the
government’s intentional waiver of the harmless error issue, or simply provides cover
for prosecutorial oversight—failed to explain why that fact alone is not prejudicial to
Dix. Nor can it do so.” Id. at 154.
In the other dissent, Judge Wynn, joined by Judge Thacker, echoed the
sentiment of Judge King’s dissent and emphasized two points. First, Judge Wynn
expressed concern about what “appears to be an increasing practice in our Court to
give special dispensation to prosecutors.” Id. at 154 (Wynn, J., dissenting). He noted
the court seemed ready to cover the government when they abandon issues and sua
sponte “deem ‘harmless’ a government’s recognized noncompliance with its
34
obligations when the government itself did not even argue [the court] should do so.”
Id. He then described a “rather glaring difference” in the court’s apparent treatment
of certain defendants based on their socioeconomic status. Id. at 155. Judge Wynn
stated, “even the appearance of such ‘preferential treatment’ . . . has no place in our
judicial system.” Id.
Further, given that half of the Fourth Circuit has concluded that the divided
panel below reached the wrong conclusion about whether to engage in sua sponte
harmless error review or the outcome of that review, the outcome of Dix’s case hinged
on the outcome of a metaphorical coin flip. Dix is now serving a sentence that is “at
least 12 months longer” than he should, with the possibility of the sentence being 30
months—two and a half years—longer than what he would be serving if he had won
that coin flip and one judge on his panel switched. Id. at 153 n.4 (King, J., dissenting).
The law should not change based on a metaphorical coin flip, and parties
should not win or lose appeals based on something as arbitrary as who makes up the
panel or in what jurisdiction they find themselves. Today, unclear and varied
standards for if and when a court may raise harmless error sua sponte leaves a
defendant’s due process rights up to chance. The Court should clarify the standard so
every defendant, regardless of panel makeup or jurisdiction, receives the same
protections.
IV.
This case is an ideal vehicle to resolve the issue.
The issue on appeal to the Fourth Circuit was whether Dix should have
received notice of the other felony offense on which the government intended to rely
for a four-level enhancement under the U.S.S.G. § 2K2.1(b)(6)(B), and whether the
35
enhancement was erroneously applied and resulted in an erroneous sentence. (Brief
for Appellee). The Fourth Circuit agreed that Dix received inadequate notice. But the
Court sua sponte determined the error was harmless.
Thus, the only issues for this Court to resolve are whether and when courts
may properly raise harmless error sua sponte. And this case is an ideal vehicle for
resolving those questions.
The Fourth Circuit issued three separate decisions, and all three featured
significant analysis of the sua sponte harmless error question. Further, both Dix and
the government filed full briefing on the issue, albeit in the context of a petition for
rehearing. (ECF 50; ECF 62; ECF 65.) Thus, the Court will have the benefit of
analysis and rehearing briefing in the Fourth Circuit, and there is no question the
question is fully preserved for this Court’s review.
The questions are dispositive to Dix’s case. If the Fourth Circuit improperly
raised harmless error sua sponte or applied the wrong standard, then the Fourth
Circuit’s decision cannot stand. The Court would need to vacate and either remand
for resentencing or remand for the Fourth Circuit to apply the correct standard. If,
however, the Fourth Circuit’s decision is correct, Dix’s appeal is at an end.
Moreover, the issue is not entwined with any factual, state-law, or other noncertiorari-worthy issues. The sole remaining issue is the propriety of the sua sponte
harmless error review the Fourth Circuit employed, a purely federal question. Dix
pleaded guilty and is not appealing his conviction. The facts are undisputed, and the
issue arose out of a federal sentencing error.
36
Finally, as discussed above, the Fourth Circuit’s decision deepens an already
existing division among courts about sua sponte harmless error review. Multiple
approaches for determining when courts can or should engage in that sort of review
already existed. By holding that sua sponte harmless error review is mandatory—the
first federal circuit to do so—the Fourth Circuit deepened that division. Thus, review
is particularly appropriate here.
V.
The Fourth Circuit’s decision is contrary to all its sister circuits,
contrary to Fourth Circuit precedent, and reaches the wrong
conclusion about the harmfulness of the district court’s error.
Although, as discussed, there is significant division among courts about
whether and when courts may engage in sua sponte harmless error review, every
single United States Court of Appeals and every single state save one—Florida—
disagrees with the approach the Fourth Circuit took here. All those courts either hold
that sua sponte harmless error review is improper or that courts at least have
discretion to refuse to engage in that review. Not so, held the Fourth Circuit here.
Instead, it aligns itself with only the Florida Supreme Court by holding that sua
sponte harmless error review is mandatory. See Pet. App. 32A; see also Goodwin, 751
So. 2d at 545; accord Pryce, 938 F.2d at 1351 (Randolph, J., concurring).
Not only is the Fourth Circuit’s decision here outside the ordinary bounds of
the division on this issue but also, it is contrary to the Fourth Circuit’s own precedent.
As Judge King recognized in his dissent to denial of rehearing, the Fourth Circuit
previously refused to engage in sua sponte harmless error review. Brizuela, 962 F.3d
at 789. The Fourth Circuit already recognized sua sponte review was discretionary,
not mandatory, reasoning it “should avoid doing so when, as here, the question of
37
harmless error is close.” Id. So, the Fourth Circuit’s decision here calls out for
correction, not only because it conflicts with every other circuit, but also because it
conflicts with the Fourth Circuit’s own precedent.
Because the Fourth Circuit concluded sua sponte harmless error review was
mandatory, it did not analyze whether it could or should conduct such a review.
Therefore, the Fourth Circuit failed to analyze the due process parameters or whether
the government can be relieved of its burden to show harmless error, a burden this
Court has confirmed more than once is one for the government to bear. See, e.g., Vonn,
535 U.S. at 68; O’Neal, 513 U.S. at 437-38; Olano, 507 U.S. at 741. It did no analysis
of the Giovanetti factors or any other factors to determine whether it had discretion
to reach the question or whether it should exercise any discretion it might have.
Instead, it erred by leaping straight to the conclusion that Rule 52(a) mandated
harmless error review even though the government had never raised the issue. Pet.
App at 39A. At minimum, the lack of any analysis (meaningful or otherwise) of
whether the court had discretion to relieve the government of its burden to show
harmless error and, if it did, whether it should exercise that discretion militates
strongly in favor of granting the petition, vacating the Fourth Circuit’s decision, and
remanding for additional analysis under an appropriately defined standard.
To make matters worse, the Fourth Circuit’s decision butchers the harmless
error analysis. It focuses on whether Dix might have raised different arguments “to
contest the validity [and] applicability” of the sentence enhancement had he received
proper and sufficient notice that the government would seek to use failure to stop for
38
a blue light as the basis for applying the enhancement. Pet. App. 34A-35A. But that
analysis ignores why Dix received insufficient notice—the government did not object
to exclusion of failure to stop for a blue light from the PSR—and the correct
consequence for failing to object to the PSR—forfeiture of the objection. See Pet. App.
32A (“[T]he government did not object to the presentence report, as required by Rule
32(f), on the ground that it should also identify the blue-light offense as a basis for
the enhancement.”)); United States v. Hodge, 902 F.3d 420, 427-30 (4th Cir. 2018)
(refusing to allow the government, who failed to object to the PSR, to change positions
and assert a different offense as the basis of an enhancement); United States v. Terry,
916 F.2d 157, 162 (4th Cir. 1990) (noting that, in the absence of any objection, the
court can adopt the PSR); Fed. R. Crim. P. 32(f). Thus, the quality of Dix’s
counterarguments to the government’s belated efforts to rely on failure to stop for a
blue light to apply the enhancement are irrelevant.
Further, as the judges dissenting in denying rehearing noted, the Fourth
Circuit overlooked a practical and real-world prejudice Dix has suffered from the
error. “Dix has been prejudiced because he is presently serving a 99-month prison
sentence—which is at least 12 months more than he would likely be serving absent
the four-level enhancement.” Pet. App. 56A. That is, absent the Fourth Circuit’s
apparent bald assumption that the district court—if fully cognizant that it could not
consider the government’s late-raised theory for applying the enhancement without
violating Dix’s rights—would have continued the sentencing hearing instead of
39
holding the government to its non-objection to the PSR, Dix would be serving less
time in prison.
At minimum, “reasonable minds could differ on the question of harmless
error,” Brizuela, 962 F.3d at 789, and demonstrably did differ. Pet. App. 50A-61A.
And in the Fourth Circuit before this case and at least the Ninth and Eleventh
Circuits, Iowa, and Nevada, that “reasonable minds could differ” on the second
Giovannetti factor would foreclose sua sponte harmless error review. See GonzalesFlores, 418 F.3d at 1101; Adams, 1 F.3d at 1576; Marshall, 882 N.W.2d at 104;
Belcher, 464 P.3d at 1023-1024.
In sum, the Fourth Circuit’s lack of any analysis of whether it could engage in
sua sponte harmless error review, its lack of any analysis of whether it should engage
in sua sponte harmless error review, the conflict its decision creates with decisions of
courts in other jurisdiction, and its flawed harmless error analysis all warrant this
Court accepting review and vacating the Fourth Circuit’s decision.
CONCLUSION
For these reasons, the Court should grant the petition for certiorari.
Respectfully submitted,
E. Travis Ramey
Appellate Advocacy Clinic
University of Alabama School of Law
Box 870382
101 Paul W. Bryant Drive, East
Tuscaloosa, Alabama 35487
(205) 348-4960
s/ Kimberly H. Albro
Kimberly H. Albro
Counsel of Record
Assistant Federal Public Defender
Federal Public Defender’s Office
District of South Carolina
1901 Assembly Street, Suite 200
Columbia, South Carolina 29201
(803) 765-5088
kimberly_albro@fd.org
40
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.