U.S. v. Giovannetti

• Citation: 928 F.2d 225
• Decision Date: 21 March 1991
• Docket Number: Nos. 89-3651,89-3678,s. 89-3651
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guy GIOVANNETTI and Nicholas Janis, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 225

928 F.2d 225

UNITED STATES of America, Plaintiff-Appellee, v. Guy GIOVANNETTI and Nicholas Janis, Defendants-Appellants.

Nos. 89-3651, 89-3678.

United States Court of Appeals Seventh Circuit.

March 21, 1991.

David E. Bindi, Asst. Atty. Gen., Barry R. Elden, and James O'Connell, Asst. U.S. Attys., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for U.S.

Edward M. Genson, Marc W. Martin, Genson, Steinback & Gillespie, Chicago, Ill., for Nicholas Janis.

James A. Graham, Marc W. Martin, Genson, Steinback & Gillespie, Chicago, Ill., for Guy Giovannetti.

Before POSNER, RIPPLE, and MANION, Circuit Judges.

ON PETITION FOR REHEARING

PER CURIAM.

The government's petition for rehearing (limited of course to our ordering a retrial for Janis, 919 F.2d 1223), raises two issues that require comment, one very briefly: the giving of the ostrich instruction in this case was a legal error, so the abuse of discretion standard did not apply to our review of it. Second is the government's claim that harmless error is nonwaivable. This raises a novel and interesting question that requires more extended discussion.

The basis of the government's claim is the text of Rule 52(a) of the Federal Rules of Criminal Procedure: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." This means, of course, that we cannot reverse a conviction because of a harmless error--"harmless" in the sense that it is unlikely to have made a difference in the outcome--even if the error bespeaks serious governmental misconduct that deserves punishment. United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). But that is far different from the proposition advanced by the government in its petition for rehearing in this case that even if the government does not argue harmless error, we must search the record--without any help from the parties--to determine that the errors we find are prejudicial, before we can reverse. Such a rule--for which the government offers no authority, and which if adopted might require us to overrule United States v. Malin, 908 F.2d 163, 167 (7th Cir.1990), and perhaps other cases, in which this court has declined to consider the question of harmlessness because the government did not raise it--is troublesome in two respects. First, it would place a heavy burden on the reviewing court, deprived as it would be of the guidance of the parties on the question whether particular errors were harmless. Second, it would invite salami tactics. In its main brief and at oral argument the government would argue that there was no error, hoping to get us to endorse its view of the law. If it failed in that endeavor it would file a petition for rehearing, arguing as it does in this case that it should win anyway because the error was harmless. Such tactics would be particularly questionable in a case such as this where the defendant goes out of his way to argue that the error of which he complains was prejudicial, and the government by not responding signals its acquiescence that if there was error, it indeed was prejudicial.

It is true, as the government emphasizes, that the language of Rule 52(a) is mandatory. But this is a general feature of legal rules, and does not make their provisions nonwaivable. Specific rules of conduct or procedure are promulgated against a background of...