Making Sure You Get Your Second Chance on Appeal

Timothy Crooks
Assistant Federal Public Defender and Appellate Chief
Federal Public Defender for the Northern District of Texas
600 Texas St., Suite 100
Fort Worth, TX 76102
(817) 978-2753
FAX (817) 978-2757

As an attorney who now works exclusively on appeals, I am frustrated when good points of error have not been properly preserved below. Yet, having also been a trial attorney, I realize that, in the rush to judgment in criminal cases, it is all too easy to slip up!
Many times I have heard attorneys speak dismissively of seminars on preservation of error for appeal -- for example: "All they're going to do is tell us that we need to object at trial, and I already know that." But the truth is that, in today's increasingly complex federal criminal practice, often much more than just a simple objection is needed. This paper is designed to give some basic information on preserving error to make sure that your clients get the full benefit of their "second chance" on appeal. And, for the inevitable lapse, I also include some tips for
maximizing your chances of getting your claims reviewed even where not perfectly preserved.

Pretrial Motions
The first "gotcha" with respect to pretrial motions in federal court is Federal Rule of Criminal Procedure 12(b), which requires that certain motions must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution; or

(2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense to which objections shall be noticed by the court at any time during the proceedings); or

(3) Motions to suppress evidence; or

(4) Requests for discovery under Rule 16; or

(5) Requests for a severance of charges or defendants under Rule 14.1

Additionally, the district court "may, at the time of arraignment or as soon thereafter as practicable, set a time for the making of pretrial motions and requests ...."2 Where the motions specified in Rule 12(b)(1)-(5) are not filed before the motions date set by the court (or before trial, where no motions date is set), this failure constitutes a waiver of the defenses, objections, and requests you would have made in those motions. 3 However, "the court, for cause shown may grant relief from the waiver."4 "Cause shown," will, of course, vary from case to case. In one case for example, the Fifth Circuit found that there was "cause shown" for failure to move to dismiss an indictment prior to trial where the defendant did not receive the critical grand jury transcript until after the trial started, and he filed his motion at the earliest possible time.5
Also, you should make sure to include as many specific facts as possible in your pretrial motions because you cannot count on getting an evidentiary hearing to flesh out your record. However, an evidentiary hearing is required -- and hence a district court perforce abuses its discretion in denying a hearing -- only where " 'the defendant alleges sufficient facts which, if proven, would justify relief.'"6 The motion will allege sufficient facts to justify an evidentiary hearing only when it is "sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented."7 "General or conclusory assertions, founded upon mere suspicion or conjecture will not suffice."8 Thus, if your motion is not sufficiently detailed, your motion may be summarily denied without ever having an evidentiary hearing, and, in the absence of a sufficiently detailed record, it will be virtually impossible to get any appellate relief.9
The next pitfall for the unwary with respect to pretrial motions is the motion in limine. Motions in limine are excellent devices to try to get pretrial rulings on the admissibility vel non of certain evidence. However, you should be advised that, in the Fifth Circuit, the pretrial motion in limine will not, by itself, preserve error for appeal: "to preserve error for appeal, an objection or offer of proof as to the subject presented by a motion in limine must be made at trial."10 It is probably a good idea to apply the same principle to unsuccessful motions to suppress: i.e., you should renew your objection to the allegedly suppressible evidence at trial.
Proffer, Proffer, Proffer
"Error may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and ... [, i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked."11 The Fifth Circuit appears to have added a gloss to Rule 103(a)(2), requiring that, not only the substance of the evidence, but also the relevancy of the evidence to the defense and the ground(s) for admissibility of the evidence, have been made known to the court: "Although a formal offer of proof is not required to preserve error, the party must at least inform the trial court 'what counsel intends to show by the evidence and why it should be admitted.'"12 Thus, in making a proffer, the prudent practitioner in the Fifth Circuit
is well-advised to give (1) a detailed summary of the substance of the excluded evidence; (2) all the things you expect to show or prove by that evidence; and (3) all the grounds on which the evidence should be admitted.
While a general description of the excluded evidence, or a global proffer of mass prior testimony or evidence, is generally not sufficient to preserve error, it may be sufficient where the trial court chills or restricts the party's ability to make a more detailed proffer.13 Thus, in Ballis, the Fifth Circuit found that a global proffer of the entire record of a previous motion to dismiss hearing was adequate to preserve error where the trial judge warned that he did not need to be "spoon fed" about every possible nuance of the question, and where the judge expressed an intimate familiarity with the testimony offered and in fact accepted the global proffer as sufficient.14
The same principles apply where the error complained of is not one pertaining to the exclusion of evidence per se, but is one pertaining to the trial process leading to the discovery, production, and introduction of evidence. For example, where a defendant moves for continuance on the basis of the unavailability of a witness, it is incumbent upon the defendant to show the court that "due diligence has been exercised to obtain the attendance of the witness, that substantial favorable evidence would be tendered by the witness, that the witness is available and willing to testify, and that the denial of the continuance would materially prejudice the defendant."15 Likewise, if the district court denies you the opportunity to present surrebuttal at trial, you must proffer the substance of your surrebuttal; failure to do so will doom your chances on appeal.16 The Fifth Circuit has upheld a district court's denial of a defense request for appointment of an investigator under the Criminal Justice Act (18 U.S.C. Sec. 3006A(e)(1)) where the request (1) lacked the requisite specificity as to the prospective witnesses the defense wished to contact and their relevance; (2) did not specify other investigative leads which the defense wished to pursue; and (3) did not recite that defense counsel had ferreted out information through his own efforts which was likely to lead to the discovery of relevant evidence.17 On the same principle, where the judge refuses to issue a subpoena, you should proffer, as specifically as you can, what you expect the witness's testimony will be in order to nail down your record on appeal.
The rule is simple: whenever the judge keeps out evidence that you need for your case, you should state on the record (or file a written submission into the record, if the judge will not let you make an oral proffer) (1) a detailed summary of the evidence; (2) why the evidence is necessary to your case; and (3) why it is admissible. Doing this in every case will insure that the appellate court will review your claims of erroneous exclusion on the merits rather than "punting" by finding that there was an insufficient proffer to permit appellate review.

The Contemporaneous Objection Rule
The contemporaneous objection rule is codified at Federal Rule of Evidence 103(a)(1) which provides that "[e]rror may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and ... [, i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context."18 There are two notable exceptions to the contemporaneous objection rule: first, no objection is required where the judge presiding at the trial testifies in the trial as a witness.19 Second, where the judge calls or interrogates witnesses, the objection may be deferred until "the next available opportunity when the jury is not present."20
It bears repeating that, in the Fifth Circuit, a pretrial motion in limine will not obviate the need for a contemporaneous objection at trial. Rather, "to preserve error for appeal, an objection or offer of proof as to the subject presented by a motion in limine must be made at trial."21 This does not mean, however, that pretrial motions in limine are utterly useless. First of all, you may actually win them, get what you asked for, and never need to appeal. But second, even if you do not prevail on your motions in limine before trial, they often provide a convenient shorthand for making an objection during trial: for example, "Objection, Your Honor, for all the reasons, and on all the grounds, stated in defendant's motion in limine." An objection of this type is quickly made and quickly disposed of, preserving error and preserving the good will of the judge at the same time.

Other Trial Problems
In order to attack on appeal a district court's refusal to strike a juror for cause, you should, in addition to objecting to the court's ruling, (1) use a peremptory to strike the unsuccessfully challenged juror; (2) use up all your peremptories; and (3) identify other jurors you would have used your peremptory on but for the fact of being forced to use it on the unsuccessfully challenged juror.22 From time to time, there have been some murmurings that a defendant should also have to show that particular jurors who actually sat were objectionable; however, for the most part, the Fifth Circuit appears to recognize that, at least in federal direct appeals, this showing need not be made under current jurisprudence.23
Another possible problem is a party's use of peremptory challenges on the impermissible basis of race or gender, in violation of Batson v. Kentucky24 and its progeny.25 First of all, in order to be timely, a Batson challenge must be made before the venire is dismissed and before the trial commences; it is not sufficient that challenge be made prior to the jury's being sworn.26 Second, in order even to require the opposing party to explain its strikes, the challenging party must make out a prima facie case that the strikes were exercised for an impermissible reason.27 At this point, the burden shifts to the striking party to explain its strikes.28 However, then, in order to preserve the Batson issue for appeal, the challenging party must object to/dispute the explanations, explain why those explanations are a pretext for impermissible discrimination on the basis of race or gender, and request the court to make a ruling; otherwise the claim is waived.29
It is incumbent upon every trial practitioner to move for judgment of acquittal (1) at the close of the government's evidence; and (2) at the close of all the evidence. Failure to do so will forfeit plenary review of any claims of insufficiency of the evidence, and any such claims will be reviewed only for a "manifest miscarriage of justice."30 Such a miscarriage exists only if the record lacks any evidence pointing to guilt or if the evidence was so tenuous that a conviction would be "shocking."31 A narrow exception to this rule exists where the defendant moves for judgment of acquittal after the government's case, and then immediately rests without putting on any evidence; in such a case, the sufficiency of the evidence is reviewed under the plenary standard of review.32 Likewise, the failure to move for judgment of acquittal does not constitute waiver where the trial court's action renders the motion for acquittal "an empty ritual."33

The key to preserving error at sentencing is to make comprehensive written objections to the presentence report (PSR) and any addenda thereto, and to renew those objections orally at the sentencing hearing (assuming, of course, that they are not resolved in your favor prior to sentencing). This is especially true with respect to the factual determinations underlying the selection of the Guidelines offense level -- e.g., drug quantity, amount of loss, role in the offense, etc. -- since a considerable body of Fifth Circuit law has held that questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.34
It is important to remember that the defense carries the burden of proving mitigating factors by a preponderance of relevant and sufficiently reliable evidence.35 Moreover, a party does not carry its burden at sentencing merely by the unsworn assertions of counsel, as these do not constitute a sufficiently reliable basis for sentencing.36
Downward departures are often requested but seldom granted. Moreover, unless you are very careful to lay the record correctly, the district court's denial of a downward departure will not be reviewable on appeal. Generally speaking, an appellate court has no jurisdiction under 18 U.S.C. Sec. 3742 to hear an appeal of a lawful Guidelines sentence where the district court has exercised its discretion not to depart downward; in such cases, the appeal must be dismissed for lack of jurisdiction.37 However, where a district court's refusal to depart downward is not discretionary, but rather is based upon the court's mistaken belief that it legally does not possess the authority to depart, the resulting sentencing is "in violation of law," and appellate jurisdiction does therefore lie, under 18 U.S.C. Sec. 3742(a) (1).38 The moral is that, if possible, you should get the sentencing judge to expressly articulate on the record that s/he would depart if s/he thought s/he had the authority to do so.
You should be especially careful to object to any objectionable noncustodial aspects of the sentence -- e.g., punitive fines, costs of incarceration, restitution, etc. In these cases, there is, of course, the usual consequence that your failure to do so will invoke the plain error standard on appeal. However, there is also the additional consequence that your failure to make these claims will not later be cognizable as ineffective assistance of counsel in a subsequent motion to vacate or set aside under 28 U.S.C. Sec. 2255, because, the Fifth Circuit has held, (1) a challenge to a cash fine or restitution order does not meet the "in custody" requirement of Sec. 2255 because (2) Congress intended to limit the types of claims cognizable under Sec. 2255 to claims relating to unlawful custody.39 In the cited Gaudet case, for example, defense counsel raised, for the first time on appeal, a substantial sentencing question with respect to a question relating to a restitution order, but the Fifth Circuit declined to review it on the merits on the defendant's direct appeal because it had not been raised in the district court. Then, when the defendant tried to assert on Sec. 2255 that counsel had been ineffective for failing to raise it, the Fifth Circuit declined to reach it because defendant was not "in custody" as to that portion of the sentence! The Gaudet case illustrates the enhanced importance of making proper objections to, and preserving plenary appellate review of, the objectionable noncustodial portions of a defendant's sentence.
Finally, make sure you object to illegal/improper conditions of probation and supervised release so that they can be appealed at the time the original judgment is entered. If you do not, it will be extremely difficult, if not impossible, to challenge them later when the defendant's probation/supervised release is being revoked for failure to comply with those conditions.

Consequences of Failure to Preserve Error
Failure to preserve error generally results in the application of the stringent "plain error" test. The plain error test derives from Federal Rule of Criminal Procedure 52(b), which provides that "[p]lain errors or defects affecting substantial rights my be noticed although they were not brought to the attention of the court."40 In order for there to be "plain error" warranting reversal, four elements must be satisfied:
(1) There must be an "error." "Deviation from a legal rule is 'error' unless the rule has been waived."41
(2) The error must be "plain." "'Plain' is synonymous with 'clear' or, equivalently, 'obvious.'"42 The Supreme Court in Olano declined to decide whether the error had to be plain at the time of trial/sentencing, or merely at the time of appeal.43 However, it appears that the Fifth Circuit has decided what the Supreme Court left open in Olano, and has imposed a requirement that the error be clear at the time of trial or sentencing, although the issue is not free from doubt.44
(3) The plain error must "affect substantial rights," which normally, although not necessarily always, means that the error prejudiced the defendant.45 The defendant bears the burden of proving that his substantial rights were affected by the plain error.46
(4) Finally, even if all of the first three factors are satisfied, "the Court of Appeals has authority to order correction but is not required to do so."47 It should exercise its discretion to correct the plain forfeited error if failure to correct the error would result in a "miscarriage of justice" or, put another way, "if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'"48 The Fifth Circuit has in two recent cases invoked its discretion under this fourth Olano prong to decline to reverse convictions for errors which at least presumably satisfied the first three Olano prongs.49 This suggests that practitioners should give special attention to showing why the fourth Olano prong is satisfied -- and why the appellate court should exercise its discretion in favor of correction of the error -- and not simply rest on their laurels after showing that the first three Olano factors are present.
Some errors may simply not be remediable on appeal without a timely objection. For example, as discussed above, a number of Fifth Circuit cases have held that questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.50 However, the better course is to attempt to fit the forfeited error into plain error analysis and to raise it on direct appeal anyway because (1) your client's chances are almost always better on the direct appeal than on collateral attack; and (2) your client will likely not have counsel to assist him or her with a Sec. 2255 motion, and thus will likely not be able to raise the issue as artfully, persuasively, or thoroughly as you can.
Even post-Olano and post-Calverley, the Fifth Circuit has still found some errors to be "plain error" justifying their correction even when raised for the first time on appeal:
(1) Use of a stale prior convictions under the Guidelines' criminal history provisions;51
(2) Application of the wrong section of the Guidelines;52
(3) Impermissible "double counting" resulting from use of same conduct to support two enhancements in violation of clear language of the relevant Guideline's commentary;53
(4) Delegation of authority to the probation officer to set the amount and timing of installment payments on restitution orders54 and fines;55
(5) Failure to submit the issue of materiality to the jury as required by United States v. Gaudin, ____ U.S. ____, 115 S.Ct. 2310 (1995);56
(6) Sentence exceeding the statutory maximum;57
(7) Impermissible judicial deportation as supervised release condition under 18 U.S.C. Sec. 3583 in violation of United States v. Quaye, 57 F.3d 447 (5th Cir. 1995);58 and
(8) Improper prosecutorial argument.59
Additionally, the following types of errors, albeit supported by citation to pre-Olano/pre-Calverley authority, are probably still cognizable as plain error:
(1) Conviction under a statute declared unconstitutional while case is pending on direct appeal;60
(2) Breach of a plea agreement;61 and
(3) Use of wrong version of Guidelines.62
NOTE: The above listing is in no way intended to be a complete or exclusive listing of the errors which may qualify as reversible "plain error." Whether an error is "plain error" requiring reversal will almost inevitably turn on the unique facts and circumstances of each case, and previous examples are instructive only.

So You Forgot to Preserve Error ...
(Appeal Fixers)

Despite your best intentions, you forgot to preserve error. Before donning your sackcloth and ashes, consider the following "appeal fixers" which may save the day for you:
(1) Did you have a continuing, or "running," objection to the type of error which occurred, which obviated the need for a contemporaneous objection?
(2) In some cases, the Fifth Circuit has held that where one party objects, the court presumes that the other parties have joined in the objection.63
(3) In other cases, the Fifth Circuit has held that it will allow one appellant to adopt the arguments of another co-appellant, thus raising the issue for the first time on appeal, where it would be "'anomalous to reverse some convictions and not others when all defendants suffer from the same error.'"64
(4) Where the error goes to the authority or jurisdiction of the court to act, the error may be cognizable despite failure to object, irrespective of the plain error doctrine.65
Even if you are forced into the "plain error" groove, it is worthwhile reminding the Court of Appeals that "under the plain error inquiry, errors of constitutional dimension will be noticed more freely than less serious errors."66 Also, appellate scrutiny under a more lenient standard of review than the strict plain error standard may be appropriate when the failure to preserve the precise grounds for error is mitigated by an objection on related grounds.67

It is unquestionably better to preserve the error when you can, thus avoiding the handicap of plain error review. However, if you are saddled with a less than perfectly preserved error while handling an appeal, there is no need to despair. Vigorous and creative advocacy can still save the day.

1 Fed. R. Crim. P. 12(b).
2 Fed. R. Crim. P. 12(c).
3 Fed. R. Crim. P. 12(f). While some appellate courts conduct plain error review where Rule 12(f) waiver has occurred, see, e.g., United States v. Nuñez, 19 F.3d 719, 723 n.10 (1st Cir. 1994), the Fifth Circuit has not yet decided whether the language of Rule 12(f) mandates such a review. See United States v. Tolliver, 61 F.3d 1189, 1199 n.6 (5th Cir. 1995), cert. granted and judgment vacated on other grounds, ____ U.S. ____, 116 S.Ct. 900 (1996) and cert. denied, ____ U.S. ____ & ____, 116 S.Ct. 969 & 1445 (1996).
4 Fed. R. Crim. P. 12(f).
5 United States v. Cathey, 591 F.2d 268, 271 n.1 (5th Cir. 1979).
6 United States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984), quoting United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983).
7 Harrelson, 705 F.3d at 733.
8 Id.
9 See, e.g., United States v. Smith-Bowman, 76 F.3d 634, 637-38 (5th Cir.)(district court did not abuse its discretion in denying motion to transfer venue for excessive pretrial publicity without an evidentiary hearing, where, among other things, defendant did not allege with specificity that the community had been saturated with negative media coverage of the charges against her, nor did she include with her motion any copies of, or excerpts from, specific newspaper stories or television reports that focused on her, the charges against her, or the pending trial), cert. denied, ____ U.S. ____, 1996 WL 282292 (June 17, 1996) (No. 95-8994).
10 United States v. Graves, 5 F.3d 1546, 1552 n.6 (5th Cir. 1993)(bolded emphasis supplied), cert. denied, ____ U.S. ____, 114 S.Ct. 1829 (1994); see also, id. at 1551-52. However, the rule may not be impregnable. The Graves court found that the defendant in that case would not prevail even under plenary review; but then "recommend[ed] en banc review ... of our circuit's rule on renewing objections to in limine rulings ... in the appropriate case." Id. at 1553.
11 Fed. R. Evid. 103(a) & (2) (emphasis supplied); see, E.g., United States v. Scott, 48 F.3d 1389, 1397 (5th Cir.)(holding that defendant did not preserve for appeal the issue of improper restriction on cross-examination/impeachment of government witness, where defendant failed to make an offer of proof to the district court as to which portions of the criminal record of the government's witness should have entered into evidence), cert. denied, ____ U.S. ____, 116 S.Ct. 264 (1995).
12 United States v. Clements, 73 F.3d 1330, 1336 (5th Cir. 1996) (emphasis in original), quoting United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994). In Clements, the Fifth
Circuit applied this rule to hold that the district court did not abuse its discretion in excluding evidence of defendant's poor CheckFax credit rating as hearsay, where "[d]efense counsel ... made no attempt to inform the district court that [defendant's] testimony about his CheckFax rating was being sought to prove something other than the truth of his rating." Clements, id.
13 See Ballis, 28 F.3d at 1406-07.
14 Id.
15 Scott, 48 F.3d at 1394 (internal quotation marks and citations omitted). In Scott, the Fifth Circuit rejected the defendant's claim that a continuance was necessary in order to secure the services of a voice expert for analysis of evidentiary tapes, on the basis that the defendant had not demonstrated due diligence in obtaining such an expert, availability and willingness of such an expert to testify, or that the testimony would be favorable if secured. Id.
16 See, e.g., United States v. Wright, ____ F.3d ____ , 1996 WL 309518 (5th Cir. June 5, 1996) (No. 95-10660) (denial of surrebuttal was not an abuse of discretion "because Wright 'failed to proffer to the district court the substance of his surrebuttal testimony'"; quoting and citing United States v. Alford, 999 F.2d 818, 821 (5th Cir. 1993)).
17 United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993).
18 Fed. R. Evid. 103(a) & (1) (emphasis supplied).
19 Fed. R. Evid. 605. Rule 605 provides that "[t]he judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point."
20 Fed. R. Evid. 614(c). Note, however, that an objection is required in order to preserve this type of error on appeal, as opposed to the "automatic objection" rule contained in Rule 605. See Advisory Committee Notes to Rule 614(c). Failure to object either contemporaneously or at the first opportunity when the jury is not present will subject your claims of excessive questioning by the court to review only for plain error. See, e.g., United States v. Wright, ____ F.3d ____ , 1996 WL 309518 (5th Cir. June 5, 1996) (No. 95-10660).
21 Graves, 5 F.3d at 1552 n.6; see also, id. at 1551-52. However, as discussed above, this rule may be susceptible to challenge in the proper case. See footnote 10, supra.
22 For a good example of how this was done right, see United States v. Muñoz, 15 F.3d 395, 396-98 (5th Cir.), cert. denied, ____ U.S. ____, 114 S.Ct. 2149 (1994). See also, United States v. Bryant, 991 F.2d 171, 174 & n.3 (5th Cir. 1993).
23 Bryant, 991 F.2d at 174 n.3; see also, Muñoz, 15 F.3d at 398. Both Bryant and Muñoz cite in this regard the Fifth Circuit's decision in United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976) ("[A]s a general rule it is erroneous for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause, for this has the effect of abridging the right to exercise peremptory challenges."). But see, United States v. Mendoza-Burciaga, 981 F.2d 192, 197-98 (5th Cir. 1992)("Mendoza-Burciaga makes no claim that he was prejudiced by having to use the peremptory challenge to strike the [prospective juror whom he unsuccessfully challenged for cause] rather than someone else .... [T]here was no harm ... as the [juror challenged for cause] never served."), cert. denied, ____ U.S. ____, 114 S.Ct. 356 (1993).
24 476 U.S. 79 (1986).
25 The Supreme Court has only recently held that, under the reasoning of Batson, it likewise violates the Equal Protection Clause to exclude potential jurors solely on the basis of their gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, ____, 114 S.Ct. 1419, 1430 (1994).
26 United States v. Maseratti, 1 F.3d 330, 335 (5th Cir. 1993) (citation omitted) (Batson claim waived because not made prior to dismissal of the venire), cert. denied, ____ U.S. ____ & ____ & ____, 114 S.Ct. 1096 & 1552 and 115 S.Ct. 282 (1994).
27 Batson, 476 U.S. at 93-97.
28 Id. at 97-98.
29 United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (where defense did not dispute or contest the prosecutor's explanation for exercise of peremptory challenge against Hispanic venireman, Batson challenge to peremptory challenge was waived).
30 E.g., United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir.), cert. denied, 500 U.S. 926 (1991). This writer and other federal public defenders in the Western District of Texas have challenged this reduced standard as violative of due process, equal protection, and Federal Rule of Criminal Procedure 29. Although the Fifth Circuit has recognized that there is some force to these arguments, see, e.g., United States v. Paniagua, No. 93-8722 (5th Cir. Dec. 16, 1994) (unpublished) (citing United States v. Pennington, 20 F.3d 593, 597 & n.2 (5th Cir. 1994) and United States v. Sias, No. 93-5475 (5th Cir. Sept. 30, 1994), cert. denied, ____ U.S. ____, 115 S.Ct. 1325 (1995) at 4 n.1), the Fifth Circuit has avoided deciding the issue on the merits in every case it which is raised, either by finding an exception to the waiver rule (e.g., Pennington) or by finding that the result would be the same irrespective of the standard applied (e.g., Paniagua). The Fifth Circuit has also suggested that the two standards might, in fact, be indistinguishable; but has likewise declined to decide this issue. See, e.g., Pennington, 20 F.3d at 597 n.2 (5th Cir. 1994); see also, United States v. Davis, 583 F.2d 190, 199 (5th Cir. 1978) (Clark, J., concurring).
31 United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988).
32 E.g., United States v. Jaras, ____ F.3d ____ , ____ n.5, 1996 WL 316478 *3 n.5 (5th Cir. June 11, 1996) (No. 95-40113), citing United States v. Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995).
33 E.g., Pennington, 20 F.3d at 597 n.2, citing United States v. Gonzalez, 700 F.2d 196, 204 n.6 (5th Cir. 1983).
34 See, e.g., United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S. 924 (1991) United States v. Young, 981 F.2d 180, 188 (5th Cir. 1992), cert. denied, 508 U.S. 955 & 980 (1993); United States v. Guerrero, 5 F.3d 868, 871 (5th Cir. 1993), cert. denied, ____ U.S. ____, 114 S.Ct. 1111 (1994); United States v. McCaskey, 9 F.3d 368, 376 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1565 (1994); United States v. Fierro, 38 F.3d 761, 774 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1388 and 1431 (1995); United States v. Dean, 59 F.3d 1479, 1494 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 748 and 794 (1996); United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).
35 E.g., United States v. Alfaro, 919 F.2d 962, 965 & n.10 (5th Cir. 1990) (citations in footnote omitted).
36 E.g., United States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992), citing United States v. Johnson, 823 F.2d 840, 842 (5th Cir. 1987).
37 United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995).
38 United States v. Burleson, 22 F.3d 93, 95 (5th Cir.)(citation omitted), cert. denied, ____ U.S. ____, 115 S.Ct. 283 (1994); see also, DiMarco, 46 F.3d at 478.
39 See, e.g., United States v. Gaudet, 81 F.3d 585, 592 (5th Cir. 1996), citing United States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994).
40 Fed. R. Crim. P. 52(b).
41 United States v. Olano, ____ U.S. ____, 113 S.Ct. 1770, 1777 (1993); see also, United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc), cert. denied, ____ U.S. ____, 115 S.Ct. 1266 (1995).
42 Olano, 113 S.Ct. at 1777 (citations omitted); see also, Calverley, 37 F.3d at 162-64.
43 Olano, id. ("We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.")
44 In Calverley, the Fifth Circuit stated that the requirement that the error be "plain" "contemplates an error which was 'clear under current law' at the time of trial." Calverley, 37 F.3d at 162-63 ; see also, United States v. McGuire, 79 F.3d 1396, 1413 (5th Cir. 1996) (Smith, J., dissenting) (Calverley requires that error be plain at time of trial or sentencing). However, this statement in Calverley was arguably dicta since the error in Calverley was not "plain" at the time of appeal either, in light of a continuing circuit split. McGuire demonstrates the sharp differences of opinion of Fifth Circuit judges on this point. Judge DeMoss opined that, Calverley notwithstanding, "when there is no error under existing law at the time of trial, but plain error under existing law when the appeal is decided, the plainness prong of Rule 52(b) is satisfied." McGuire, 79 F.3d at 1402 (opinion of DeMoss, J.). Judge Wiener, taking a different tack, would not even attempt to apply plain error doctrine in such a situation, because in such a situation, he said, there is no error at the time of trial, plain or otherwise. Rather, he urged the adoption of a separate jurisprudential doctrine, called the "supervening decision doctrine," "where the following factors coincide: (1) law that is well-settled and thus unobjectionable at the time of trial (2) is changed (3) without warning (4) during direct appeal." McGuire, 79 F.3d at 1410 (Wiener, J., concurring); see also, id. at 1406-13.
45 Olano, 113 S.Ct. at 1777-78; Calverley, 37 F.3d at 164.
46 Olano, id.; Calverley, id.
47 Olano, id. at 1778; see also, Calverley, id.
48 Olano, id. at 1779 (citation omitted); see also, Calverley, id.
49 See United States v. Allen, 76 F.3d 1348, 1367-68 (5th Cir. 1996); United States v. Jobe, 77 F.3d 1461, 1475-76 (5th Cir. 1996).
50 See footnote 34, supra.
51 See, e.g., United States v. Green, 46 F.3d 461, 467 (5th Cir. ), cert. denied, ____ U.S. ____, 115 S.Ct. 2629 (1995).
52 See, e.g., United States v. Franks, 46 F.3d 402, 404-405 (5th Cir. 1995).
53 See, e.g., United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994), cert. denied, ____ U.S. ____, 115 S.Ct. 1157 (1995).
54 See, e.g., United States v. Albro, 32 F.3d 173, 174 & n. 1 (5th Cir. 1994) .
55 See, e.g., United States v. Leslie E. Campbell, Jr., No. 94-11109 (5th Cir. Dec. 27, 1995)(unpublished), cert. denied, ____ U.S. ____, 1996 WL 226658 (1996). In the Fifth Circuit, unpublished opinions issued before January 1, 1996 are precedent; but, if an unpublished opinion is cited, a copy must be attached to the document in which it is cited. Fifth Cir. Loc. R. 47.5.3.
56 See, e.g., McGuire, 79 F.3d at 1401-1405 (opinion of DeMoss, J.).
57 See, e.g., United States v. Collins, 40 F.3d 95, 101 (5th Cir. 1994), cert. denied, ____ U.S. ____, 115 S.Ct. 1986 (1995).
58 See, e.g., United States v. Antonio Rodriquez, No. 94-10751 (5th Cir. June 27, 1995) (unpublished), cert. denied, ____ U.S. ____, 116 S.Ct. 400 (1995). See also, footnote 55, supra, regarding the precedential value of unpublished Fifth Circuit opinions.
59 See, e.g., United States v. Flores-Chapa, 48 F.3d 156, 159-161 (5th Cir. 1995).
60 See, e.g., United States v. Knowles, 29 F.3d 947, 950-52 (5th Cir. 1994).
61 See, e.g., United States v. Goldfaden, 959 F.2d 1324, 1328 (5th Cir. 1992).
62 See, e.g., United States v. Gross, 979 F.2d 1048, 1052 (5th Cir. 1992).
63 See, e.g., United States v. Sanchez-Sotelo, 8 F.3d 202, 210 (5th Cir. 1993) (citing Howard v. Gonzales, 658 F.2d 352, 355 (5th Cir. Unit A 1981)), cert. denied, ____ U.S. ____, 114 S.Ct. 1910 (1994).
64 United States v. Miles, 10 F.3d 1135, 1137 n.3 (5th Cir. 1993), quoting United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980), cert. denied, 449 U.S. 1038 (1980) & 1091 (1981) & 450 U.S. 919 (1981).
65 See Kelly v. United States, 29 F.3d 1107, 1113 (7th Cir. 1994) ("[Q]uestions about the [district] court's jurisdiction cannot be waived."), citing Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, ____, 111 S.Ct. 2631, 2648 (1991) (Scalia, J., concurring); cf. FED. R. CRIM. P. 12(b)(2) (failure of indictment or information to show jurisdiction in the court "shall be noticed by the court at any time during the pendency of the proceedings"). The Fifth Circuit has cited Kelly with approval for this very proposition in United States v. Rodriquez, cited in footnote 58, supra. In any event, courts have repeatedly held that sentences which are beyond the statutory authority of court to impose are plainly erroneous. See United States v. Cobbs, 967 F.2d 1555, 1558 (11th Cir. 1992); United States v. Wainwright, 938 F.2d 1096, 1098 (10th Cir. 1991); cf. United States v. Collins, 40 F.3d at 101 (sentence exceeding statutory maximum is plainly erroneous); United States v. Gardner, 18 F.3d 1200, 1201 (5th Cir.) (implying that sentence pursuant to Guideline promulgated beyond the Sentencing Commission's statutory authority would be plainly erroneous, and giving apparently plenary review to such a question despite lack of objection below), cert. denied, ___ U.S. ___, 115 S.Ct. 212 (1994).
66 Knowles, 29 F.3d at 951; see also, e.g., United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S. 924 (1991).
67 E.g., Lopez, 923 F.2d at 50; United States v. Brown, 555 F.2d 407, 420 (5th Cir. 1977), cert. denied, 435 U.S. 904 (1978); cf. United States v. Watson, 966 F.2d 161, 162 n.1 (5th Cir. 1992) (propriety of use of retail value of stolen goods instead of wholesale value sufficiently preserved for plenary review despite fact that appellant did not frame issue as precisely below as on appeal, because appellant did urge below that wholesale figure be used instead of retail figure).