Peck v. U.S.

• Decision Date: 27 December 1996
• Docket Number: D,No. 1021,1021
• Citation: 102 F.3d 1319
• Parties: Michael PECK, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 94-2444.
• Court: U.S. Court of Appeals — Second Circuit

Page 1319

102 F.3d 1319

Michael PECK, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 1021, Docket 94-2444.

United States Court of Appeals Second Circuit.

Dec. 27, 1996.

Prior report: 73 F.2d 1220.

Before: NEWMAN, Chief Judge, KEARSE, WINTER, MINER, WALKER, McLAUGHLIN, JACOBS, LEVAL, CALABRESI, CABRANES, and PARKER, Circuit Judges.

PER CURIAM:

The Court voted to rehear this appeal in banc to consider the harmless error analysis applicable on review of a collateral attack upon a conviction obtained after a jury charge that, in conformity with then prevailing law, see United States v. Caming, 968 F.2d 232, 238-41 (2d Cir.1992), did not include an aspect of the mental state necessary for conviction, an aspect subsequently required, see Ratzlaf v. United States, 510 U.S. 135, 148, 114 S.Ct. 655, 663, 126 L.Ed.2d 615 (1994). The Supreme Court having clarified harmless error analysis in California v. Roy, --- U.S. ----, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996), the in banc court dissolves itself and leaves the appeal for reconsideration by the original panel in light of Roy.

JON O. NEWMAN, Chief Judge, concurring:

I concur in the decision of the in banc Court to dissolve and return this appeal to the panel for further consideration in light of the Supreme Court's recent decision in California v. Roy, --- U.S. ----, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996), but add these views in an effort to identify and illuminate uncertainties that have been created by the way the Supreme Court has explicated its recent harmless error jurisprudence in the context of constitutional errors.

I. Harmless Error Jurisprudence Before California v. Roy

Formulating an approach for deciding criminal cases in which a constitutional error is claimed to be harmless requires consideration of two distinct issues: what standard is to be applied in determining whether an error is harmless, and how certain must a court be that an error is harmless, under the applicable standard, before it may leave a conviction undisturbed. Though these issues are logically distinct, courts have not always considered them separately. Prior to California v. Roy, three Supreme Court decisions had established the basic framework for considering claims that a constitutional error was harmless.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court considered both the issues of the standard of harmlessness and the degree of certainty required. As to the standard, the Court said the question is whether the error "contribute[d] to the verdict," id. at 24, 87 S.Ct. at 828, adopting the standard it had previously enunciated in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963). As to the degree of certainty, Chapman ruled that the prosecution bore a burden of proving that the error was harmless "beyond a reasonable doubt." Chapman, 386 U.S. at 24, 87 S.Ct. at 828. ¹

In Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the Court ruled that for "constitutional error of the trial type," id. at 638, 113 S.Ct. at 1722, the Chapman test applies only to direct review and that on collateral attack the standard for harmless error, drawn from Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), is "whether the error 'had substantial and injurious effect or influence in determining the jury's verdict.' " ² Brecht, 507 U.S. at 637, 113 S.Ct. at 1721 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253). Brecht did not precisely articulate the degree of certainty a reviewing court must have in determining whether the standard of "substantial and injurious effect or influence" had been met, but the opinion makes clear that the "beyond a reasonable doubt" formulation of Chapman is being rejected. Id. at 636-37, 113 S.Ct. at 1721-22.

In O'Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), the Court determined the degree of certainty a reviewing court must have in order to conclude that a constitutional error, raised in a habeas corpus petition, was harmless under the Brecht standard. A six-member majority ruled that if the reviewing court is in "grave doubt" as to whether the error is harmless, the habeas petitioner wins. Id. at ----, 115 S.Ct. at 994. The Court explained that by "grave doubt" it meant that the issue of harmlessness is "so evenly balanced" that the judge feels "in virtual equipoise" on the issue. ³ Id.

In addition to the Chapman and Brecht/O'Neal approaches to harmless error, the Court introduced a third approach in Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989). Carella, which also involved collateral review, concerned a jury charge that informed the jurors of two mandatory presumptions applicable in a criminal case. ⁴ There was no objection to the charge. The Supreme Court ruled that the charge was constitutionally erroneous, and reversed and remanded for consideration of whether the error was harmless. The error would be harmless, the majority opinion ruled, if "no rational jury could find the predicate acts [underlying the presumption] but fail to find the fact presumed." Id. at 267, 109 S.Ct. at 2421. Justice Scalia wrote separately, for himself and three other Justices, to make clear "that the harmless-error analysis applicable in assessing a mandatory conclusive presumption is wholly unlike the typical form of such analysis." Id. (Scalia, J., with whom Brennan, Marshall, and Blackmun, JJ., join, concurring in the judgment). In the "usual case," he wrote, where the inquiry is whether erroneous admission of evidence requires a reviewing court to reverse a conviction, the court considers the trial record as a whole to decide "whether the fact supported by the improperly admitted evidence was in any event overwhelmingly established by other evidence." Id. But with a conclusive presumption, he continued, a reviewing court may not make its own guess from the record as a whole as to whether a properly instructed jury would have found the presumed fact. Instead, the task for the reviewing court is to determine whether "the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact." Id. at 271, 109 S.Ct. at 2423-24. In other words, the analysis concerns not what a properly instructed jury would have found, but what the jury actually found. In Justice Scalia's terms, whenever the test he enunciated is met, the findings the jurors did make "is functionally equivalent to finding the element required to be presumed." Id. ⁵

The Court's approach in Carella, especially as explicated in Justice Scalia's concurrence, can be viewed as either a third standard for determining harmless error or a different way of determining whether the Brecht standard of harmlessness has been met. If a court considers Carella to set forth a standard, it would ask whether it concludes, upon examination of the facts the jury did find, that no reasonable jury could fail to find the presumed fact. If a court considers Carella to set forth a different way of meeting the Brecht standard, it would ask whether the erroneous charge had a substantial and injurious effect or influence on the verdict, and it would answer that question by inquiring whether it concludes, upon examination of the facts the jury did find, that no reasonable jury could fail to find the presumed fact; if so, there was no injurious effect upon the verdict.

The initial uncertainty arising from the articulation of these differing standards, especially the two approaches applicable to collateral review (Brecht/O'Neal and Carella/O'Neal ), ⁶ concerned the types of errors to which these approaches applied. Some clarification as to the scope of the Brecht/O'Neal approach had begun to emerge when the Supreme Court decided Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The issue was whether harmless error analysis of any sort applied to the erroneous admission of a coerced confession. A five-member majority held that it did. Id. at 302, 111 S.Ct. at 1260 (part II of opinion of Rehnquist, C.J., with whom O'Connor, Scalia, Kennedy, and Souter, JJ., join). The Chief Justice drew a distinction between "trial error," which he described as "error which occurred during the presentation of the case to the jury," id. at 307, 111 S.Ct. at 1263, and "structural defects," which he described as a defect "affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Id. at 310, 111 S.Ct. at 1265. "Trial errors," the majority ruled, were subject to harmless error analysis; "structural defects" were not, since they "defy analysis by 'harmless-error' standards." Id. at 309, 111 S.Ct. at 1265. As illustrations of "structural defects," the Chief Justice cited cases involving "total deprivation of the right to counsel," id. (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)), "a judge who was not impartial," id. (citing Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)), "unlawful exclusion of members of the defendant's race from a grand jury," id. at 310, 111 S.Ct. at 1265 (citing Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)), "the right to self-representation," id. (citing McKaskle v. Wiggins, 465 U.S. 168, 177-78, n. 8, 104 S.Ct. 944, 950-51 n. 8, 79 L.Ed.2d 122 (1984)), and "the right to public trial," id. (citing Waller v. Georgia, 467 U.S. 39, 49 n. 8, 104 S.Ct. 2210, 2217 n. 8, 81 L.Ed.2d 31 (1984)).

The taxonomy of constitutional errors outlined in Fulminante appeared likely to place most, and perhaps all, errors in jury instructions into the category of "trial type" errors, to which some form of harmless error...