U.S. v. Merlos

Decision Date05 November 1993
Docket NumberNo. 91-3213,91-3213
Citation8 F.3d 48,303 U.S.App. D.C. 395
PartiesUNITED STATES of America, Appellee, v. Pablo Juan MERLOS, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

On Appellant's Petition for Rehearing.

James S. Arisman, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Thomas C. Black, Washington, DC, were on the brief, for appellee.

Leigh A. Kenney, Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, Washington, DC, was on the brief, for appellant in No. 91-3213. Santha Sonenberg, Asst. Federal Public Defender, Washington, DC, entered an appearance for appellant in No. 91-3213.

Barbara R. Miller, Washington, DC (appointed by the court), for appellant.

Before: EDWARDS and WILLIAMS *, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This disposition is rendered pursuant to a petition for rehearing filed by Pablo Juan Merlos. The petitioner was convicted on two counts of distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). The conviction was upheld in United States v. Merlos, 984 F.2d 1239 (D.C.Cir.1993) ("Merlos I "). Merlos now claims that, in light of the Supreme Court's decision in Sullivan v. Louisiana, --- U.S. ----, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), which was issued after the decision in Merlos I, his conviction must be overturned because the District Court's instruction to the jury on what constitutes guilt "beyond a reasonable doubt" was legally infirm. Merlos never objected to the disputed instruction at trial, so his claim here is that his conviction should be reversed because the instruction resulted in "plain error." We agree that, in light of Sullivan, the harmless error doctrine was inapplicable; however, we hold that, because there was no settled law on the issue at the time of trial, the instruction did not constitute plain error.

I. BACKGROUND

Victor Loriano and petitioner Merlos were tried separately and convicted of selling crack cocaine. At each trial, the District Judge instructed the jury that they could find guilt beyond a reasonable doubt if the evidence caused them to have a "strong belief" in the defendant's guilt. Loriano timely objected to the instruction; Merlos did not. On appeal, we affirmed both convictions on the ground that the reasonable doubt instructions, although constitutionally deficient, were harmless in light of the overwhelming evidence of each defendant's guilt. Merlos I, 984 F.2d at 1240.

Shortly after our decision issued, the Supreme Court held in Sullivan v. Louisiana that a constitutionally deficient reasonable doubt instruction never can be harmless error. --- U.S. at ----, 113 S.Ct. at 2082. In light of Sullivan, we reversed Loriano's conviction and vacated the judgment in Merlos I insofar as it pertained to Loriano. United States v. Loriano, 996 F.2d 424 (D.C.Cir.1993) (per curiam). In response to Merlos' petition for rehearing, we directed the parties to address the question whether Sullivan precludes a court from affirming a conviction based on a constitutionally faulty reasonable doubt instruction to which the defendant failed to object. We now hold that, because it was not plainly erroneous under settled law at the time of trial, the instruction given in Merlos' trial was not plain error.

II. ANALYSIS

In cases in which a defendant properly objects to error occurring at trial, we will reverse unless the error is found to be harmless. See FED.R.CRIM.P. 52(a). The "harmless error" test examines whether there was legal error and if so, whether it was prejudicial. See Merlos I, 984 F.2d at 1242. In Sullivan, the Supreme Court reasoned that the central inquiry of harmless error analysis--whether the jury's verdict would have been different absent the alleged error--is "meaningless" where the error "consists of a misdescription of the burden of proof." Sullivan, --- U.S. at ----, 113 S.Ct. at 2082. Thus, the Court opined that there can be no verdict of "guilt beyond a reasonable doubt" if the relevant instruction is erroneous, because the misinstructed jurors necessarily deliberated pursuant to a standard other than "beyond a reasonable doubt." By definition, therefore, the defendant is deprived of his Sixth Amendment right to a jury verdict based on guilt beyond a reasonable doubt. Id. at ----, 113 S.Ct. at 2081.

Our summary reversal of Loriano's conviction reflects our understanding of Sullivan's mandate: A constitutionally deficient reasonable doubt instruction to which the defendant timely objects never can be harmless error. See Loriano, 996 F.2d at 424. Had Merlos objected at trial to the instruction given, we would have no trouble concluding that his conviction also should be reversed under Sullivan's clear holding. In the absence of timely objection, however, we review only for plain error. See FED.R.CRIM.P. 52(b).

The plain error standard, as recently clarified by the Supreme Court, requires us to determine (1) whether there is unwaived legal error, (2) whether the error is "plain" or "obvious" under current law and (3) whether the error was prejudicial. United States v. Olano, --- U.S. ----, ---- - ----, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). The scope of review under the plain error doctrine is very narrow, however, for it covers only such error that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at ----, 113 S.Ct. at 1779 (quotation omitted).

In order to determine the proper disposition of Merlos' petition, we must examine the intersection of Sullivan and Olano. At the threshold, we note that both harmless error and plain error review require us to determine whether the error was prejudicial. As Olano recognized, this inquiry normally is the same in both cases, but for the fact that under plain error analysis, the burden of persuasion with respect to prejudice rests on the defendant rather than the Government. Olano, --- U.S. at ----, 113 S.Ct. at 1778. Thus, the central premise of Sullivan applies with equal force in the plain error context: where the error consists of a misdescription of the reasonable doubt standard, the court cannot assess the impact of the error on the outcome of the trial because there has been no jury finding of guilt beyond a reasonable doubt in the first instance. The fact that the burden of proof shifts in plain error cases is of no import here, as the analytical task of the reviewing court remains the same.

The next question is whether anything in Sullivan can be read to alter either of the remaining prongs of plain error review. We think not. Sullivan did not dwell on the "error" aspect of harmless error and it could not, of course, speak to the obviousness prong of Olano, for obviousness is not an element of harmless error review. We therefore conclude that, as a general matter, Sullivan does not preclude an appellate court from affirming the conviction of a defendant who failed to object to a faulty instruction in cases where the...

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