507 U.S. 725 (1993), 91-1306, United States v. Olano

Docket NºNo. 91-1306
Citation507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508, 61 U.S.L.W. 4421
Party NameUnited States v. Olano
Case DateApril 26, 1993
CourtUnited States Supreme Court

Page 725

507 U.S. 725 (1993)

113 S.Ct. 1770, 123 L.Ed.2d 508, 61 U.S.L.W. 4421

United States



No. 91-1306

United States Supreme Court

April 26, 1993

Argued Dec. 9, 1992




Two of the fourteen jurors selected to hear evidence in respondents' criminal trial [113 S.Ct. 1773] were identified as alternates before jury deliberations began. The District Court, without objection from respondents, permitted the alternates to attend the deliberations, instructing them that they should not participate, and respondents were convicted on a number of charges. The Court of Appeals vacated respondents' convictions. It concluded, inter alia, that the alternates' presence during deliberations violated Federal Rule of Criminal Procedure 24(c), which requires that alternate jurors be discharged after the jury retires to consider its verdict. The court found that the alternates' presence in violation of Rule 24(c) was inherently prejudicial and reversible per se under the "plain error" standard of Rule 52(b).

Held: The presence of the alternate jurors during jury deliberations was not an error that the Court of Appeals was authorized to correct under Rule 52(b). Pp. 731-741.

(a) A court of appeals has discretion under Rule 52(b) to correct "plain errors or defects affecting substantial rights" that were forfeited because not timely raised in the district court, which it should exercise only if the errors "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. 157, 160. There are three limitations on appellate authority under Rule 52(b). First, there must be an "error." A deviation from a legal rule during the district court proceedings is an error unless the defendant has waived the rule. Mere forfeiture does not extinguish an error. Second, the error must be "plain," a term synonymous with "clear" or, equivalently, "obvious." Third, the plain error must "affec[t] substantial rights," which normally means that the error must be prejudicial, affecting the outcome of the district court proceedings. Normally a court of appeals engages in a specific analysis of the district court's record to determine prejudice, and the defendant bears the burden of persuasion. This Court need not decide whether the phrase "affecting substantial rights" is always synonymous with "prejudicial" or whether there are errors that should be presumed prejudicial. Pp. 731-735.

(b) The language of Rule 52(b), the nature of forfeiture, and the established appellate practice that Congress intended to continue, all point to

Page 726

the conclusion that the Rule is permissive, not mandatory. The standard that should guide the exercise of remedial discretion was articulated in United States v. Atkinson, supra, at 160. The remedy is not limited to cases of actual innocence, since an error may "seriously affect the fairness, integrity or public reputation of judicial proceedings" independent of the defendant's innocence. However, a plain error affecting substantial rights does not, without more, satisfy the Atkinson standard, for otherwise the discretion afforded by Rule 52(b) would be illusory. Pp. 735-737.

(c) The Government concedes that the deviation from Rule 24(c) in this case was an "error" that was "plain." However, that deviation did not "affec[t] substantial rights." The presence of alternates during jury deliberations is the type of error that must be analyzed for prejudicial impact. While their presence contravened the cardinal principle that jury deliberations shall remain private and secret, the purpose of such privacy is to protect deliberations from improper influence. Whether a presumption of prejudice is imposed or a specific analysis is made does not change the ultimate inquiry: did the intrusion affect the jury's deliberations, and thereby its verdict? See, e.g., Parker v. Gladden, 385 U.S. 363 (per curiam). Respondents have made no specific showing that the alternates either participated in, or "chilled," the jury's deliberations. Nor can prejudice be presumed. The Court of Appeals erred in presuming that the alternates failed to follow [113 S.Ct. 1774] the judge's instructions, see Richardson v. Marsh, 481 U.S. 200, 206, and the alternates' mere presence did not entail a sufficient risk of "chill" to justify a presumption of prejudice on that score. Since the error was not prejudicial, there is no need to consider whether it would have warranted correction under the Atkinson standard. Pp. 737-741.

934 F.2d 1425 (CA9 1991), reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 741. STEVENS, J., filed a dissenting opinion, in which WHITE and BLACKMUN, JJ., joined, post, p. 743.

Page 727

O'CONNOR, J., lead opinion

JUSTICE O'CONNOR delivered the opinion of the Court.

The question in this case is whether the presence of alternate jurors during jury deliberations was a "plain error" that the Court of Appeals was authorized to correct under Rule 52(b) of the Federal Rules of Criminal Procedure.


Each of the respondents, Guy W. Olano, Jr., and Raymond M. Gray, served on the board of directors of a savings and loan association. In 1986, the two were indicted in the Western District of Washington on multiple federal charges for their participation in an elaborate loan "kickback" scheme. Their joint jury trial with five other codefendants commenced in March, 1987. All of the parties agreed that fourteen jurors would be selected to hear the case, and that the two alternates would be identified before deliberations began.

On May 26, shortly before the end of the 3-month trial, the District Court suggested to the defendants that the two alternate jurors, soon to be identified, might be allowed to attend deliberations along with the regular jurors:

. . . I'd just like you to think about it, you have a day, let me know, it's just a suggestion and you can -- if there is even one person who doesn't like it, we won't do it, but it is a suggestion that other courts have followed in long cases where jurors have sat through a lot of testimony, and that is to let the alternates go in but not participate, but just to sit in on deliberations.

It's strictly a matter of courtesy, and I know many judges have done it with no objections from counsel. One of the other things it does is, if they don't participate but they're there, if an emergency comes up and people decide they'd rather go with a new alternate rather than 11, which the rules provide, it keeps that option open. It also keeps people from feeling they've sat here for three months and then get just kind of kicked out. But it's certainly not worth -- unless it's something you all

Page 728

agree to, it's not worth your spending time hassling about, you know what I mean? You've got too much else on your mind. I don't want it to be a big issue; it's just a suggestion. Think about it and let me know.

App. 79.

The matter arose again the next day, in an ambiguous exchange between Gray's counsel and the District Court:

THE COURT: [H]ave you given any more thought as to whether you want the alternates to go in and not participate, or do you want them out?

MR. ROBISON [counsel for Gray]: We would ask they not.


App. 82. One day later, on May 28, the last day of trial, the District Court for a third time asked the defendants whether they wanted the alternate jurors to retire into the jury [113 S.Ct. 1775] room. Counsel for defendant Davy Hilling gave an unequivocal, affirmative answer.

THE COURT: Well, Counsel, I received your alternates. Do I understand that the defendants now -- it's hard to keep up with you, Counsel. It's sort of a day by day -- but that's all right. You do all agree that all fourteen deliberate?

Okay. Do you want me to instruct the two alternates not to participate in deliberation?

MR. KELLOGG [counsel for Hilling]: That's what I was on my feet to say. It's my understanding that the conversation was the two alternates go back there instructed that they are not to take part in any fashion in the deliberations.

App. 86. This discussion, like the preceding two, took place outside the hearing of the jurors. As before, both Gray's counsel and Olano's counsel were present. Gray, too, attended all three discussions. Olano may not have attended the third

Page 729

-- he claims that the marshal failed to return him to the courtroom in time -- but he was present at the first two.

The District Court concluded that Hilling's counsel was speaking for the other defendants as well as his own client. None of the other counsel intervened during the colloquy between the District Court and Hilling's counsel on May 28, nor did anyone object later the same day when the court instructed the jurors that the two alternates would be permitted to attend deliberations. The court instructed:

We have indicated to you that the parties would be selecting alternates at this time. I am going to inform you who those alternates are, but before I do, let me tell you, I think it was a difficult selection for all concerned, and since the law requires that there be a jury of twelve, it is only going to be a jury of twelve. But what we would like to do in this case is have all of you go back, so that even the alternates can be there for the deliberations, but according to the law, the alternates must not participate in the deliberations. It's going to be hard, but if you are an alternate, we think you should be there because things do happen in the course of lengthy jury deliberations, and if you need to step in, we want you to be able to step in having heard the deliberations. But we are going to ask that you not participate.


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11662 practice notes
  • 442 F.Supp.3d 875 (W.D.Penn. 2020), 2:14-cr-00205, United States v. Montgomery
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • March 2, 2020
    ...(3) the error affects the defendant's substantial rights. See id. (citing United States v. Olano, 507 U.S. 725, 733-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If the Court concludes that the defendant established the first three (3) prongs, the Court "should ......
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    • Federal Cases United States Bankruptcy Courts Seventh Circuit
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    ...lacked the authority to decide his claim for defamation, then he should have said so— and said so promptly. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (" ‘ No procedural principle is more familiar to this Court than that a constitutional right......
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    • Federal Cases United States Bankruptcy Courts Ninth Circuit
    • July 2, 2013
    ...the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Id. (quoting U.S. v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (internal quotation marks and citation Thus, under Bellingham, sandbagging can supply consent......
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    • Federal Cases Military Appeals
    • August 9, 2013
    ...rights of an accused." United States v. Roberson, 46 M.J. 826, 828 (A.F. Ct. Crim. App. 1997) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)), aff'd, 48 M.J. 411 (C.A.A.F. 1997). " Once these first three criteria are met, an appellate cou......
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7 firm's commentaries
  • Does the operation of a pyramid scheme necessarily involve fraudulent activity?
    • United States
    • JD Supra United States
    • May 13, 1999
    ...do not [ 177 F.3d 491 ] believe that the error was prejudicial or affected the defendant's substantial rights. See United States v. Olano,507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (describing the prejudice analysis as a harmless error inquiry with the burden on the defendant......
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    • JD Supra United States
    • July 19, 2019
    ...forfeiture (the failure to timely assert a right) and waiver (the intentional relinquishment of known rights). United States v. Olano, 507 U.S. 725, 732–33 (1993). Also, unlike in our state appellate courts, it should be noted error preservation in the Fourth Circuit is an issue of civil pr......
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    • JD Supra United States
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54 books & journal articles
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    • The Journal of Corporation Law Vol. 40 Nbr. 1, September - September 2014
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    • University of Pennsylvania Law Review Vol. 158 Nbr. 2, January 2010
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    • Stanford Law Review Vol. 61 Nbr. 1, October 2008
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