Petition for Writ of Certiorari — Michael Keith Marechale, Petitioner v. United States

NO. _______

__________________________________________________

IN THE

Supreme Court of the United States

OCTOBER TERM, 2025

__________________________________________________

MICHAEL MARECHALE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

__________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________

Brad Hansen

Federal Public Defender

FEDERAL PUBLIC DEFENDER’S OFFICE

400 Locust Street, Suite 340

Des Moines, Iowa 50309

Phone: (515) 309-9610

Email: brad_hansen@fd.org

ATTORNEY FOR PETITIONER

QUESTION PRESENTED

“Courts of Appeals have stated . . . under the ‘invited error’ doctrine that a

party may not complain on appeal of errors that he himself invited or provoked the

district court . . . to commit.” United States v. Wells, 519 U.S. 482, 487-88 (1997)

(cleaned up).

In this case, Michael Marechale was convicted of a child pornography offense

after the district court erroneously instructed the jury regarding his criminal history.

The erroneous instruction derived from a joint proposal by the government and the

defense. Because the parties jointly proposed the incorrect instruction, the Eighth

Circuit held that Mr. Marechale waived any appellate review.

The question presented is whether a defendant invariably waives any

appellate review by acquiescing to an incorrect jury instruction. This question has

split the circuits.

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PARTIES TO THE PROCEEDINGS

The caption lists all parties to the proceedings.

DIRECTLY RELATED PROCEEDINGS

This case arises from the following proceedings in the United States District

Court for the Southern District of Iowa and the United States Court of Appeals for

the Eighth Circuit:

United States v. Marechale, No. 1:23-cr-31-RGE-HCA (S.D. Iowa) (criminal

proceedings), judgment entered June 18, 2024.

United States v. Marechale, No. 24-2271 (8th Cir.) (direct criminal appeal),

judgment and opinion entered July 21, 2025. Mr. Marechale did not file a petition

for rehearing.

There are no other proceedings in state or federal trial or appellate courts or

in this Court directly related to this case.

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TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS ............................................................................ ii

DIRECTLY RELATED PROCEEDINGS ..................................................................... ii

TABLE OF AUTHORITIES .......................................................................................... v

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................... 1

STATEMENT OF THE CASE ....................................................................................... 1

REASONS FOR GRANTING THE WRIT .................................................................... 3

I.

The Circuits are Split Regarding Whether a Criminal Defendant

may Challenge an Erroneous Jury Instruction that the

Government and Defendant Jointly Proposed ........................................ 3

II.

This Court Should Grant Certiorari to Resolve the Split in Favor

of the Sixth and Ninth Circuit Approaches ............................................. 5

CONCLUSION............................................................................................................... 6

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INDEX TO APPENDIX

Eighth Circuit Opinion and Judgment dated July 21, 2025 ........................................ 1

District Court Judgment dated June 18, 2024 ............................................................. 9

Erroneous Jointly Proposed Jury Instruction ............................................................ 17

iv

TABLE OF AUTHORITIES

Rule

Fed. R. Crim. P. 52......................................................................................................... 1

Cases

Supreme Court

United States v. Olano, 507 U.S. 725 (1993)............................................................. 3, 5

United States v. Wells, 519 U.S. 482 (1997) ................................................................... i

Courts of Appeals

United States v. Albert, No. 22-3404, 2023 WL 7295130

(8th Cir. Nov. 6, 2023) (unpublished) ................................................................. 6

United States v. Barrow, 118 F.3d 482 (6th Cir. 1997) ................................................ 4

United States v. Benton, 98 F.4th 1119 (D.C. Cir. 2024).............................................. 4

United States v. Jackson, 913 F.3d 789 (8th Cir. 2019) ............................................... 3

United States v. Mariano, 729 F.3d 874 (8th Cir. 2013) .............................................. 3

United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc) .................................... 4

United States v. Savoires, 430 F.3d 376 (6th Cir. 2005) .............................................. 5

United States v. Teerlink, 141 F.4th 1126 (10th Cir. 2025) ..................................... 3, 4

United States v. Tillman, 765 F.3d 831 (8th Cir. 2014) ............................................... 2

United States v. Wortham, 990 F.3d 586 (8th Cir. 2021) ............................................. 2

v

PETITION FOR WRIT OF CERTIORARI

Petitioner Michael Marechale respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Eighth Circuit.

OPINION BELOW

The Eighth Circuit’s unpublished opinion in Mr. Marechale’s case appears in

the Appendix to this petition at page 1.

JURISDICTION

This Court has jurisdiction over this case under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

Federal Rule of Criminal Procedure 52(b): “A plain error that affects

substantial rights may be considered even though it was not brought to the court's

attention.”

STATEMENT OF THE CASE

A jury in the Southern District of Iowa convicted Mr. Marechale of receipt of

child pornography in violation of 18 U.S.C. § 2252(a)(2). This appeal pertains to a

jury instruction that told the jury how it could use evidence of Mr. Marechale’s two

prior convictions for sexual assault of minors who were not under 14 years old.

Before the trial, the parties submitted “joint” proposed jury instructions, which

included the instruction at issue here. (App., p. 2.) The district court adopted the

instruction after Mr. Marechale’s counsel confirmed on the record that he was

satisfied with the proposal. (Id., pp. 2-3.)

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The jury instruction, reprinted in its entirety at page 17 of the Appendix,

“allowed the jury to ‘consider the conviction[s] to . . . decide any matter to which [they

are] relevant.’” (Id., p. 5.) That instruction would have been appropriate had Federal

Rule of Evidence 414 applied, because “Rule 414 makes evidence of other child

molestation crimes admissible despite Rule 404(b) propensity-evidence concerns.”

(Id., p. 3.) As it was, however, “Rule 414 cannot encompass Marechale’s convictions

because his past sexual assault victims were not under 14 years of age.” (Id.) Thus,

the jury instruction incorrectly advised the jury that it could consider Mr. Marechale’s

prior crimes for any purpose, including propensity.

After receiving that incorrect instruction, the jury predictably found Mr.

Marechale guilty. The district court sentenced him to 300 months’ imprisonment.

(Id., pp. 9-10.)

On appeal, the Eighth Circuit declined to review the erroneous jury instruction

initially proposed by the government and Mr. Marechale. Citing Circuit precedent,

the court stated, “Marechale invited the jury instruction on his prior convictions, so

any argument he makes about the instruction was waived.” (Id., p. 4 (citing United

States v. Wortham, 990 F.3d 586, 589 (8th Cir. 2021); United States v. Tillman, 765

F.3d 831, 836 (8th Cir. 2014)).)

The Eighth Circuit rejected Mr. Marechale’s other challenges to his conviction

and affirmed the district court. (See id., pp. 7-8.) Mr. Marechale did not file a petition

for rehearing.

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REASONS FOR GRANTING THE WRIT

I.

The Circuits are Split Regarding Whether a Criminal Defendant may

Challenge an Erroneous Jury Instruction that the Government and

Defendant Jointly Proposed.

In United States v. Olano, 507 U.S. 725 (1993), this Court explained:

Waiver is different from forfeiture. Whereas forfeiture is the failure to

make the timely assertion of a right, waiver is the intentional

relinquishment or abandonment of a known right. . . . Whether a

particular right is waivable; whether the defendant must participate

personally in the waiver; whether certain procedures are required for

waiver; and whether the defendant’s choice must be particularly

informed or voluntary, all depend on the right at stake. Mere forfeiture,

as opposed to waiver, does not extinguish an “error” under Rule 52(b).

Id. at 733 (citations and quotation marks omitted). In Mr. Marechale’s case

and others, the Eighth Circuit has held that when the government and defendant

jointly propose an erroneous jury instruction, the defendant has “invited” the error

and waived appellate review. See, e.g., United States v. Jackson, 913 F.3d 789, 79193 (8th Cir. 2019); see also United States v. Mariano, 729 F.3d 874, 881 (8th Cir. 2013)

(“We do not think Olano justifies a departure from our panel precedents that a

defendant who requests and receives a jury instruction may not challenge the giving

of that instruction on appeal.”).

In the context of jointly proposed but erroneous jury instructions, a circuit split

has emerged after Olano.

On the one hand, some circuits follow the Eighth Circuit’s strict, prosecutionfavorable approach. See United States v. Teerlink, 141 F.4th 1126, 1131 (10th Cir.

2025) (“We have determined that when a party proposes a jury instruction, this act

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constitutes an intentional and knowing relinquishment, and we will not engage in

appellate review when a defendant has waived his right to challenge a jury

instruction by affirmatively approving it at trial. . . . There is no exception for jointly

submitted jury instructions; we treat a joint submission as affirmative approval by

both parties.” (citations and quotation marks omitted)); United States v. Benton, 98

F.4th 1119, 1130 (D.C. Cir. 2024) (“Challenging a jointly proposed jury instruction

can also trigger invited error.”)

The Ninth Circuit has a different, more defendant-favorable approach. In that

circuit, the defendant has not waived a jury instruction challenge unless the

defendant “considered the controlling law, or omitted element, and, in spite of being

aware of the applicable law, proposed or accepted a flawed instruction.” United States

v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). In other words, a defendant’s

mistake in acquiescing to an erroneous joint instruction does not waive appellate

review.

Finally, the Sixth Circuit has yet a different approach. That Circuit has held

that the invited error doctrine “does not foreclose relief when the interests of justice

demand otherwise.” United States v. Barrow, 118 F.3d 482, 491 (6th Cir. 1997). In

Barrow, the Court agreed to review the jury instruction at issue for plain error, even

though the parties jointly proposed it, because “the government was as much at fault

for inviting the error as the defendant since the parties stipulated to the same

instructions.” Id. When the government is partially to blame, “the interests of justice

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are not served by a strict application of the waiver doctrine.”

United States v.

Savoires, 430 F.3d 376, 381 (6th Cir. 2005).

II.

This Court Should Grant Certiorari to Resolve the Split in Favor of

the Sixth and Ninth Circuit Approaches.

For several reasons, this Court should reject the Eighth Circuit’s rule that it

will never review a jury instruction—no matter how flawed or prejudicial it was to a

criminal defendant—if the parties jointly proposed it.

First, the Eighth Circuit’s rule is contrary to Olano, which states that “waiver

is the intentional relinquishment or abandonment of a known right.” 507 U.S. at 733

(emphasis added). Acquiescing to an erroneous jury instruction is rarely intentional;

rather, it is most often simply a mistake. Unlike the approaches of the Sixth and

Ninth Circuits, the Eighth Circuit’s rule fails to distinguish between an intentional

decision and an unfortunate mistake. Agreeing to an erroneous jury instruction is

more akin to forfeiture, or a “failure to make the timely assertion of a right” to a

properly instructed jury. See id. Here, the jury instruction in Mr. Marechale’s case

arose from the mistaken impression that Rule 414 allowed for propensity evidence

regarding his past crimes.

Second, the Eighth Circuit’s rule promotes unjust outcomes. The district court,

government, and defense counsel were equally wrong on the applicability of Rule 414,

yet Mr. Marechale alone suffers as a result. He is serving a 300-month prison

sentence imposed because an incorrectly instructed jury convicted him.

Mr.

Marechale’s case is just one example of a defendant suffering for mistakes for which

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the government shares the blame. See, e.g., United States v. Albert, No. 22-3404, 2023

WL 7295130, at *1 (8th Cir. Nov. 6, 2023) (unpublished) (Eighth Circuit summarily

refused to review incorrect jointly proposed jury instruction on the elements of sexual

abuse by threat and force, for which the defendant received 452 months’

imprisonment).

Third, applying plain error review—rather than refusing to review the

instruction at all—adequately “punishes” a criminal defendant for acquiescing to an

erroneous jury instruction. Plain error review is a demanding standard, requiring

proof of an obvious error that affected substantial rights to get relief. See id. at 73334. As the Sixth Circuit recognized, plain error review in this context serves the

interests of justice while still incentivizing parties to propose correct jury

instructions.

Finally, the Eighth Circuit’s rule creates bad incentives. The government

shares the blame for an erroneous jointly proposed jury instruction.

But the

government will rarely, if ever, find itself in the position of challenging a jury

instruction on appeal.

So, with the Eighth Circuit’s rule, what prevents the

government from proposing to the defendant an erroneous, government-friendly joint

instruction with the hope that defense counsel will overlook the error? Either the

defendant catches the error or not. If not, the instruction is immune from appellate

review.

The Court should correct this by granting Mr. Marechale’s petition.

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CONCLUSION

For these reasons, Mr. Marechale respectfully requests that the Court grant

his petition for writ of certiorari.

RESPECTFULLY SUBMITTED,

/s/ Brad Hansen

Federal Public Defender

FEDERAL PUBLIC DEFENDER’S OFFICE

400 Locust Street, Suite 340

Des Moines, Iowa 50309

Phone: (515) 309-9610

Email: brad_hansen@fd.org

ATTORNEY FOR PETITIONER

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