Wednesday, March 9th, 2016

The Modified Plain-Error Standard Lives to Fight Another Day

United States v. Joseph Ray Jordan, No. 14-79-cr (Summary Order of March 9, 2016) (Sack, Chin, Lohier):

The Circuit did not issue a published decision today. However, one summary order today warrants discussion on the issue of plain error.

Defendant Jordan raised a number of issues on appeal, but the Court addressed only one in its summary order: Whether the trial judge’s instruction to the jury on the § 875(c) count (making threatening interstate communications), given before the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015), and erroneous in light of that subsequent decision, warrants a new trial. The judge had told the jury that it could convict Jordan even if he did not “intend[] the communication [he] transmitted to be threatening.” Though this was correct under then-governing law in the Circuit, Elonis subsequently ruled that a conviction under § 875(c) requires more than proof that “a reasonable person would regard [the] communication as threats.” Id. at 2012. And while the Court “did not specify the mens rea required under the statute, [it] made clear that a simple negligence standard was unconstitutional.” Order at 3.

The Circuit ultimately concludes that a new trial is not warranted because the error is harmless, since, among other things, “the evidence that Jordan knew that his communications would be interpreted as threats was overwhelming and essentially uncontroverted.” Order at 7. No new law is made in this respect.

On the way to that conclusion, however, the Court discusses in a footnote a long-simmering issue on the question of plain error. Because the defense did not object to the § 875(c) charge at trial, the Circuit reviewed Jordan’s argument under Rule 52(b)’s plain-error standard. Under this standard, the appellant ordinarily bears the burden of demonstrating, among other things, that the error “affected substantial rights.” In other words, it was up to the appellant to show that the error was not harmless.

However, the Second Circuit has long held that when “the source of plain error is a supervening decision, . . . a modified plain error rule applies, under which the government, not the defendant, bears the burden to demonstrate that the error . . . was harmless.” Order at 3-4 n.1 (citing United States v. Henry, 325 F.3d 93, 100 (2d Cir. 2003)). That condition obtained in this case, since the “source of plain error is [the] supervening decision” in Elonis.

The Government objected to the “modified plain error” standard, arguing (as it does whenever the occasion arises) that it “is no longer good law under the reasoning of Johnson v. United States, 520 U.S. 461 (1997).” Order at 4 n.1. And as it has done nearly every time the Government objects to the modified plain error rule, the Circuit ducked the question, ruling that it is “unnecessary to decide the issue here” because “[w]hether the burden lies with the government [or the defendant] would not change our view of whether the jury wold have returned the same verdict beyond a reasonable doubt.” Id. The modified plain-error rule for supervening decisions thus lives on.

NB: The Circuit employs at least one other modified plain-error standard, which the Government also dislikes (and objects to whenever invoked). That standard was first recognized in United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 20012), and applies when the error challenged on appeal (1) occurred at sentencing, and (2) the defendant did not receive notice prior to sentencing that the court would take the action constituting the error. (In Sofsky, the error raised on appeal was a special condition of supervised release barring the defendant from using a computer or accessing the Internet, which the district court had imposed sua sponte at sentencing without objection). When those conditions obtain, Sofsky ruled, the Court will “relax the otherwise rigorous standards of plain error review” in evaluating the claimed error. Id.; see id. at 125-26 (“[W]e will entertain [Sofsky’s] challenge without insisting on strict compliance with the rigorous standards of Rule 52(b).”).

As noted and over the Government’s continuing objection, the Court continues to use this “relax[ed]” version of plain-error review for unnoticed sentencing errors. See, e.g., United States v. Matta, 777 F.3d 116, 121-22 (2d Cir. 2015).

– Yuanchung Lee

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