U.S. v. Perez

Decision Date20 June 1997
Docket Number94-10314 and 94-10400,Nos. 94-10313,s. 94-10313
Citation116 F.3d 840
Parties97 Cal. Daily Op. Serv. 4712, 97 Daily Journal D.A.R. 7779 UNITED STATES of America, Plaintiff-Appellee, v. Louise Han PEREZ; Joseph Eclavea Perez; John Velasco Cruz, Defendants-Appellants. *
CourtU.S. Court of Appeals — Ninth Circuit

Robert E. Harstock, Assistant Federal Public Defender, Mongmong, Guam, for defendant-appellant, Joseph E. Perez.

Howard Trapp, Howard Trapp Incorporated, Agana, Guam, for Defendant-Appellant, John V. Cruz.

David J. Highsmith, Highsmith & O'Mallen, Agana, Guam, for Defendant-Appellant, Louise Han Perez.

Karon V. Johnson, Assistant United States Attorney, Agana, Guam, for the Plaintiff-Appellee.

Appeals from the United States District Court for the District of Guam; John S. Unpingco, District Judge, Presiding. D.C. No. CR-94-00036.

Before: HUG, Chief Judge, BROWNING, FLETCHER, PREGERSON, JOHN T. NOONAN, THOMPSON, LEAVY, TROTT, T.G. NELSON, KLEINFELD and TASHIMA, Circuit Judges.

Opinion by Judge TASHIMA; Concurrence by Judge KLEINFELD.

TASHIMA, Circuit Judge:

The issue we resolve today is the viability of this circuit's "invited error" doctrine following the Supreme Court's decision in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The three-judge panel ("panel") suggested that Olano overruled that doctrine, at least in the context of jury instructions specifically requested by the defendant. United States v. Perez, 67 F.3d 1371, 1385 n. 13 (9th Cir.1995). On en banc review, we conclude that Olano limits our application of the invited error doctrine to those rights deemed waived, as opposed to merely forfeited, that is, "known right[s]" that have been "intentional[ly] relinquish[ed] or abandon[ed]." See Olano, 507 U.S. at 733, 113 S.Ct. at 1777 (defining waiver).

In the case before us, we conclude that defendants-appellants Joseph E. Perez ("Perez") 1 and John V. Cruz ("Cruz") did not waive the proper jury instructions under 18 U.S.C. § 924(c)(1), using or carrying a firearm in relation to drug trafficking. Even though both defendants submitted flawed instructions, neither they, the prosecution, nor the court apparently was aware of the correct law. Given these circumstances, the error cannot be deemed waived, but merely forfeited. We therefore undertake a plain error review. However, because we conclude that the error is not one that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings," id. at 736, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391,

392, 80 L.Ed. 555 (1936)), we do not "notice" the error under Federal Rule of Criminal Procedure 52(b). We therefore withdraw that portion of the original panel's opinion concerning the flawed jury instructions under § 924(c)(1). Perez, 67 F.3d at 1384-86. 2

I FACTS AND PROCEDURAL BACKGROUND

This case arises out of a drug trafficking conspiracy in Guam. Defendants Cruz and Perez, along with others, were charged, and in some instances convicted, of various conspiracy, drug, and firearm counts. The following recitation of facts is pertinent to the convictions of Cruz and Perez under 18 U.S.C. § 924(c)(1), using or carrying a firearm in relation to drug trafficking. 3

In 1992, Perez sold cocaine four times to a police informant. Guam police officers, in cooperation with federal agents, then put his residence under surveillance. The surveillance revealed that Perez exchanged firearms and other stolen goods for heroin from Cruz. According to a police informant, Perez discovered he was under surveillance, and cached the bulk of the contraband at Cruz's residence. In December, 1993, the police obtained search warrants for the residences of both Cruz and Perez, and executed those warrants on December 28.

When officers entered Perez's residence, he was seated on a couch with his girlfriend Matilda Paulino. As Perez stood up, officers saw a Caspian Arms .38 caliber pistol on the couch, which had been under Perez's right leg. Police also found a .22 caliber pistol in Paulino's purse, and a semi-automatic pistol in a bag in a hall.

In executing the search warrant of Cruz's residence, undercover police knocked on his door and made an unsuccessful effort to draw Cruz out of his home. The officers then decided their cover had been blown, and so barged into the residence yelling "police officers!" Officers quickly discovered Cruz underneath the kitchen table, chambering a round into a loaded Glock-19 9 mm. pistol with a special laser sight. After his arrest, police also discovered a loaded SWD M-11 9 mm. pistol and a Norinko SKS semi-automatic rifle in the master bedroom, and an Inter TEC-9 pistol with silencer in the living room.

Perez and Cruz, along with a third co-defendant, were tried together. 4 At trial, the prosecution introduced evidence connecting the guns found at the residences of Cruz and Perez to the respective defendants. Various witnesses also testified that Cruz and Perez sold heroin to friends while carrying a weapon. The prosecution adduced expert testimony that narcotic traffickers use weapons for protection and intimidation. The jury convicted both Cruz and Perez of distributing heroin in violation of 21 U.S.C. § 841(a)(1), possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(2), being felons in possession of firearms in violation of 18 U.S.C. § 922(g)(1), and using or carrying firearms in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1). 5 The indictment charged that Perez and Cruz possessed heroin with intent to distribute up to and including December 28, 1993. Thus, defendants were in the course of committing a drug trafficking crime on the date they were arrested with the weapons and in the circumstances described above.

II DISCUSSION

Defendants contend their convictions under 18 U.S.C. § 924(c)(1) should be overturned Whoever, during and in relation to any ... drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years....

because the trial court failed to instruct on an essential element of the crime. Section 924(c)(1) provides:

18 U.S.C. § 924(c)(1) (emphasis added). In United States v. Mendoza, 11 F.3d 126 (9th Cir.1993), we held the statute's "in relation to" requirement is an essential element of a § 924(c)(1) offense, which must be submitted to a jury. Id. at 128.

Although Mendoza was decided several months prior to defendants' trial, the court did not submit the "in relation to" element to the jury. 6 A busy trial court cannot be blamed for this kind of error, particularly when both sides agreed that the flawed instruction, which was taken from the Manual of Model Criminal Jury Instructions for the Ninth Circuit, Instruction 819U (1992), should be given. Under these circumstances, we must now consider whether we may review the error and, if so, whether we should grant relief.

A. The Viability of the Invited Error Doctrine

We have held repeatedly that where the defendant himself proposes allegedly flawed jury instructions, we deny review under the invited error doctrine. See, e.g., United States v. Butler, 74 F.3d 916, 918 n. 1 (9th Cir.1996); United States v. Staufer, 38 F.3d 1103, 1109 n. 4 (9th Cir.1994); United States v. Baldwin, 987 F.2d 1432, 1437 (9th Cir.), cert. denied, 508 U.S. 967, 113 S.Ct. 2948, 124 L.Ed.2d 696 (1993); United States v. Guthrie, 931 F.2d 564, 567 (9th Cir.1991). The doctrine reflects the policy that invited errors "are less worthy of consideration than those where the defendant merely fails to object." Guam v. Alvarez, 763 F.2d 1036, 1037 (9th Cir.1985). In the past, we have corrected invited errors only in extraordinary circumstances, such as "when the integrity of the judicial process itself would otherwise suffer." Id. (quoting Marshall v. United States, 409 F.2d 925, 927 (9th Cir.1969)); but see, United States v. Freeman, 6 F.3d 586, 600 (9th Cir.1993) (conducting a plain error review of the omission of an entrapment instruction, even though the defendant had voluntarily withdrawn such an instruction at trial). The government argues that under our invited error doctrine, we may not review the error because Cruz and Perez both proposed the faulty instructions to the court.

By contrast, Cruz and Perez argue that we may review the error under Rule 52(b), which provides:

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

Fed.R.Crim.P. 52(b). Until now, we have undertaken a plain error review when the defendant merely failed to object to faulty instructions, as opposed to actually proposing or agreeing to faulty instructions. Baldwin, 987 F.2d at 1437.

In Olano, the Court provides an extensive framework for plain error review. 507 U.S. at 731-37, 113 S.Ct. at 1776-80. Olano does not, however, specifically address the concept of invited error. From this omission, the panel concluded that plain error review is appropriate for invited errors:

Olano lays out a framework to be applied to all instances where defendant's counsel has failed to properly preserve error for appeal. Olano does not distinguish between errors counsel fails to object to and errors that counsel invites affirmatively. Rule 52(b) does not make this distinction either.

Perez, 67 F.3d at 1385 n. 13. Although Olano does not directly address so-called "invited error," it certainly addresses the difference between forfeited and waived rights. 507 U.S. at 732-34, 113 S.Ct. at 1776-78. Accordingly, we cannot agree that Olano completely overruled our invited error doctrine. Instead, we must reformulate that doctrine to conform to Olano 's discussion of waiver and forfeiture.

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