U.S. v. Omer

• Citation: 429 F.3d 835
• Decision Date: 31 October 2005
• Docket Number: No. 03-30544.,No. 03-30513.,03-30513.,03-30544.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy W. OMER, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Timothy W. OMER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

429 F.3d 835

UNITED STATES of America, Plaintiff-Appellee, v. Timothy W. OMER, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Timothy W. OMER, Defendant-Appellee.

No. 03-30513.

No. 03-30544.

United States Court of Appeals, Ninth Circuit.

October 31, 2005.

Kris A. McLean, Esq., USMI-Office of the U.S. Attorney, Missoula, MT, Michael A. Rotker, U.S. Dept. of Justice, Criminal Div., Appellate Section, Washington, DC, for Plaintiff-Appellee.

Michael J. Sherwood, Esq., Missoula, MT, for Defendant-Appellant.

Before HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

ORDER

The panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc, but the request failed to receive a majority of votes of the nonrecused active judges in favor of en banc rehearing.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

GRABER, Circuit Judge, with whom KOZINSKI, O'SCANNLAIN, BYBEE, CALLAHAN, and BEA, Circuit Judges, join, dissenting from the denial of rehearing en banc.

I respectfully dissent from the court's decision not to take this case en banc. We should take this opportunity to reconsider the rule that our prior precedent required the three-judge panel to apply: automatic reversal of any conviction in which the defendant timely, and correctly, objected that an element of the crime was missing from the indictment. See United States v. Du Bo, 186 F.3d 1177 (9th Cir.1999) (holding that such a deficiency is not subject to harmless error review). An absolute rule makes no sense. When the defendant has actual notice of the missing element in advance of trial, evidence of the missing element is introduced, the jury is properly instructed about the element, and the finder of fact finds the element beyond a reasonable doubt, the defendant may not have been prejudiced by the omission; reversal should not be compelled. We ought not cling to a rule that drains judicial resources when we can review — indeed, have reviewed, in very similar circumstances — the prejudice caused by the omission of an element from an indictment.

A. The Du Bo decision, establishing the "automatic reversal rule" at issue, rested on three premises.

The court in Du Bo held that, "if properly challenged prior to trial, an indictment's complete failure to recite an essential element of the charged offense is . . . a fatal flaw requiring dismissal of the indictment." 186 F.3d at 1179. We supported that automatic reversal rule with three premises.

The first premise was jurisdictional. We asserted that an indictment that omits an element "does not properly allege an offense against the United States" and thereby "leaves nothing for a petit jury to ratify." Id. at 1180(internal quotation marks omitted). We drew this idea in part from a Fourth Circuit decision holding that harmless error is inapplicable because the omission of an essential element deprives the court of jurisdiction: "The absence of prejudice to the defendant in a traditional sense does not cure a substantive, jurisdictional defect in an indictment." United States v. Hooker, 841 F.2d 1225, 1232 (4th Cir.1988) (en banc) (emphasis added); see also Du Bo, 186 F.3d at 1180 (citing Hooker). We also appeared to hold that the jurisdictional basis for our rule of automatic reversal was supported by Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), and Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). See Du Bo, 186 F.3d at 1179-80 (relying on those cases).¹

Second, we said that omissions from a grand jury indictment, unlike omissions from jury instructions, simply are not susceptible to harmless error review. Du Bo, 186 F.3d at 1179-80.

Finally, we expressed a desire to give defendants an incentive to bring timely objections. We limited the automatic reversal rule to timely challenges, reasoning that under harmless error review, filing a pretrial motion would be "self-defeating" because the very filing of the motion would demonstrate that the defendant had notice of the missing element. Id. at 1180 n. 3.

In this case, Defendant Timothy W. Omer raised a timely challenge to the omission of two elements from the indictment against him for bank fraud. We applied the rule of Du Bo and reversed Defendant's conviction because of one of those omissions.² At the time we decided United States v. Omer, 395 F.3d 1087 (9th Cir.2005) (per curiam), however, none of the three rationales articulated in Du Bo supported continued application of the automatic reversal rule.

B. Supreme Court precedent does not support the jurisdictional rationale for Du Bo.

After we issued Du Bo, the Supreme Court decided United States v. Cotton, 535 U.S. 625, 634, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Cotton directly eliminated the jurisdictional premise for the automatic reversal rule. In Cotton, the Court held that an indictment containing the essential elements of the offense is not a jurisdictional prerequisite to a criminal prosecution. See id. at 630, 122 S.Ct. 1781 (stating that "defects in an indictment do not deprive a court of its power to adjudicate a case").

The decisions of Russell and Stirone, which we cited in support of our jurisdictional rationale in Du Bo, are distinguishable from Du Bo and do not compel the automatic reversal rule. Russell and Stirone contain strong, general admonitions about protecting the Fifth Amendment right to have a grand jury determine probable cause. See Russell, 369 U.S. at 770, 82 S.Ct. 1038 ("To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure."); see also Du Bo, 186 F.3d at 1179-80 (holding that, when "[w]e may only guess whether the grand jury" found probable cause to support the missing element, "[r]efusing to reverse . . . would impermissibly allow conviction on a charge never considered by the grand jury" (citing Stirone, 361 U.S. at 219, 80 S.Ct. 270)). But both Russell and Stirone were concerned with preventing the government from pursuing a theory of the crime not presented to the grand jury; the Court sought to prevent that kind of a substantive "constructive amendment" of the indictment.³

See Cotton, 535 U.S. at 631, 122 S.Ct. 1781(describing Russell and Stirone as reflecting the "settled proposition of law" that "an indictment may not be amended except by resubmission to the grand jury"). Many cases, however, including the present one, do not involve a new or different theory, so it is questionable whether the Supreme Court's stated rationale must apply across the board to every kind of missing element. See, e.g., United States v. Prentiss, 256 F.3d 971, 984 n. 11 (10th Cir.2001) (en banc) (per curiam) (opinion by Baldock, J.) (distinguishing the constructive amendment at issue in Stirone from the mere failure to allege an essential element because, in the latter case, the indictment "sought to charge Defendant with the sole crime for which the jury convicted him").

Additionally, Russell and Stirone were decided before Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. 22 (1967), in which the Court established that constitutional errors can be harmless. Even more importantly, Russell and Stirone were decided before Neder v. United States, 527 U.S. 1, 7-15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), a case that is significant here both for its explanation of "structural error" (discussed below) and its substantive holding that omission of an element of the charged crime from jury instructions can be harmless. See also United States v. Allen, 406 F.3d 940, 943-45 (8th Cir.2005) (en banc) (reviewing for harmless error because Neder's list of structural errors did not include Stirone and because Neder held that omissions from jury instructions can be harmless), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Sept. 29, 2005) (No. 05-6764). As our sister circuits have done, we can distinguish Russell and Stirone.

C. Our own precedents undermine Du Bo's premise that omissions from the grand jury are not susceptible to harmless error review.

In Du Bo, we asserted that omissions from the grand jury are, in general, not proper fodder for harmless error review. We reasoned that assessing grand jury error would require the court to "`guess as to what was in the minds of the grand jury.'" Du Bo, 186 F.3d at 1179(quoting United States v. Keith, 605 F.2d 462, 464 (9th Cir.1979)). Our own precedents undermine this rationale.

When defective indictments are challenged for the first time on appeal, our cases do not mandate automatic reversal but, rather, require us to review for plain error. In so doing, we perform a prejudice analysis nearly identical to the analysis that we refused to perform in Du Bo. See United States v. Velasco-Medina, 305 F.3d 839, 847 (9th Cir.2002) (holding that "any defect in the indictment was harmless"); United States v. Leos-Maldonado, 302 F.3d 1061, 1064(9th Cir.2002) ("Leos cannot meet the third condition[of the plain error standard]."). Except for the burden of proof, the third element of the plain error analysis is identical to the harmless error analysis: Both require us to determine whether the error "affect[ed] substantial rights," i.e., prejudiced the defendant. United States v. Jordan, 291 F.3d 1091, 1095-96(9th Cir.2002). Compare Cotton, 535 U.S. at 631, 122 S.Ct. 1781 (setting forth the four prongs of plain error review: (1) an error; (2) that is plain; (3) that "affect[s] substantial rights"; and (4) that "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings" (alteration in original) (emphasis added) (internal quotation marks omitted)), with Fed.R.Crim.P. 52(a...