United States v. Escalante–Reyes, No. 11–40632.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtJERRY E. SMITH
Citation689 F.3d 415
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Jose Miguel ESCALANTE–REYES, Defendant–Appellant.
Docket NumberNo. 11–40632.
Decision Date25 July 2012

689 F.3d 415

UNITED STATES of America, Plaintiff–Appellee,
v.
Jose Miguel ESCALANTE–REYES, Defendant–Appellant.

No. 11–40632.

United States Court of Appeals,
Fifth Circuit.

July 25, 2012.


[689 F.3d 418]


Eileen K. Wilson, Renata Ann Gowie, Asst. U.S. Attys., Houston, Texas, Sangita Katikineni Rao, U.S. Dept. of Justice, Crim.
Div., Washington, DC, for Plaintiff–Appellee.

Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks, H. Michael Sokolow, Asst. Fed. Pub. Defenders, Houston, TX, for Defendants–Appellants.


Robert Russell Nigh, Jr., Brewster & De Angelis, P.L.L.C., Tulsa, OK, Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., Metairie, LA, for Daniel James Broussard, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Texas.
Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES and HIGGINSON, Circuit Judges.

HAYNES, Circuit Judge, joined by E. GRADY JOLLY, W. EUGENE DAVIS, CARL E. STEWART, DENNIS, PRADO, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, GRAVES and HIGGINSON, Circuit Judges:

In this case we answer the following question: whether, when the law at the time of trial or plea is unsettled, but becomes clear1 while the case is pending on appeal, review for the second prong of the “plain error” test properly considers the law as it stood during the district court proceedings (“time of trial”) or at the time of the appellate court's decision (“time of appeal”). We join the majority of other circuits in answering this question as follows: “time of appeal.”

A large majority of us concur that this case presents this question squarely, though perhaps not perfectly. Recognizing the intra- and inter-circuit split on this question, see United States v. Broussard, 669 F.3d 537, 554 (5th Cir.2012), petition for reh'g filed, we determined to hear this case2 en banc in the first instance to resolve the issue. We turn, then, to the explanation for our decision.

I. Analysis of the En Banc Question
A. The Text of the Rule

We start with the Federal Rules of Criminal Procedure. Rule 51(b)—sometimes called the “contemporaneous objection rule”—advises that a party “may preserve a claim of error by informing the court” at the time of the action or ruling. Fed.R.Crim.P. 51(b). We reaffirm the importance of the contemporaneous objection rule in the orderly process of trial court matters. But the rules do not make the absence of a contemporaneous objection fatal to the party's efforts to correct an error on appeal. The very next rule states: “A plain error that affects substantial

[689 F.3d 419]

rights may be considered even though it was not brought to the court's attention.” Fed.R.Crim.P. 52(b). As with any statutory or rule analysis, we start with the text of the rule.

Unfortunately, the rule itself gives little assistance as to the question of timing; the first clause speaks to the present: “that affects,” while the last clause uses the past tense of “was.”3 We conclude that the term “was” does not answer the timing question. Instead, read most naturally, it is simply referring to the fact that the lack of a contemporaneous objection occurred in the past, as it necessarily would by the time an appellate court would receive the case. We cannot read into this use of the past tense a requirement that the error be “plain” at the time of trial. The Government also argues that by using the pronoun “it” in the second clause, the rule is referring to “plain error” in the antecedent clause and means that the error had to be plain at the time of trial. We conclude that a more natural reading of the rule is that “it” refers back to the noun it replaces—“error”—and that the term “it” encompasses the error now under consideration without addressing when it was plain.

B. Supreme Court Precedents

We turn then to Supreme Court precedent. The Supreme Court has identified four requirements for reversing a trial court based upon plain error review: (1) “there must be an error or defect—some sort of [d]eviation from a legal rule—that has not been intentionally relinquished or abandoned”; (2) “the legal error must be clear or obvious, rather than subject to reasonable dispute”; (3) “the error must have affected the appellant's substantial rights”; and (4) “if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citation and internal quotation marks omitted and alterations in original).

Though it has had opportunities to do so, the Supreme Court has not spoken directly to the timing issue when the law is unsettled at the time of trial but becomes clear by the time of appeal. In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court noted that “plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Id. at 734, 113 S.Ct. 1770. However, the Court specified that it “need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Id. (emphasis added).

Approximately four years after Olano, the Supreme Court decided Johnson, in which it held that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” 520 U.S. at 468, 117 S.Ct. 1544. The Court reasoned that it would be futile for a lawyer

[689 F.3d 420]

to object to an “error” that clearly was not an error under the law as it existed at that time. Id. at 467–68, 117 S.Ct. 1544. If objections were required to preserve such an error, counsel would have to make “a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.” Id. at 468, 117 S.Ct. 1544. Both Olano and Johnson left open the question of when the “plainness” of an error would be evaluated in a situation where the law was unsettled at the time of trial, but was clear at the time of appeal. If the Supreme Court believed this issue to be determined, it would have said so in one of these cases. It did not.

C. Circuit Precedents

Thus, we turn to our own precedents and those of our sister circuits. As well-stated in Broussard, our own precedents do not speak with one voice. Compare Broussard, 669 F.3d at 554–55 (concluding that where an error is unclear at the time of trial but clear on appeal, the court should apply the law at the time of appeal), with United States v. Henderson, 646 F.3d 223, 225 (5th Cir.2011), (addressing the same issue and stating that the law should be evaluated at the time of trial), cert. granted,––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (U.S. June 25, 2012) (No. 11–9307, 2012 WL 894491). The earliest of our cases to interpret Olano held that plain error is to be evaluated at the time of appeal. See United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994) (“It is of no consequence that [the appellate case that clarified the law] was decided after the proceedings in the district court concluded. Since this case is on direct appeal, newly announced rules apply.”) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)).4Broussard resolved the issue by following Knowles, as it is the earlier opinion on this issue. Broussard, 669 F.3d at 554–55;see also United States v. Hudson, 457 Fed.Appx. 417, 419–20 (5th Cir.2012) (per curiam) (unpublished). Of course, in this en banc case, we are in a position to harmonize our prior precedents and speak with one voice.

[689 F.3d 421]

Our sister circuits also are not uniform, but the vast majority have either implicitly or explicitly adopted the “time of appeal” rationale. The Ninth and District of Columbia Circuits are the only circuits squarely holding that if the law is unclear at the time of trial and later becomes clear, the error is evaluated based on the law as it existed at the time of trial. See, e.g., United States v. Mouling, 557 F.3d 658, 664 (D.C.Cir.2009) (“We therefore hold that where, as here, the law was unsettled at the time of trial but became settled by the time of appeal, the general rule applies, and we assess error as of the time of trial.”); United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997) (“When the state of the law is unclear at trial and only becomes clear as a result of later authority, the district court's error is perforce not plain; we expect district judges to be knowledgeable, not clairvoyant.”).

In contrast, the First, Second, Tenth, and Eleventh Circuits have explicitly held that the plainness of error is evaluated at the time of appellate review when the law is unsettled at the time of trial but becomes clear by the time of appeal. See, e.g., United States v. Cordery, 656 F.3d 1103, 1106–07 (10th Cir.2011) (adopting the “blanket rule” that plain error is established at the time of appeal, regardless of whether the error was “plain or obvious at the time of sentencing” or trial); United States v. Garcia, 587 F.3d 509, 520 (2d Cir.2009) (concluding that “[w]hether an error is ‘plain’ is determined by reference to the law as of the time of appeal” in a case where the law was unclear at the time of sentencing but later became clear (internal citation and quotation marks omitted)); United States v. Ziskind, 491 F.3d 10, 14 (1st Cir.2007) (citing Johnson for the proposition “that error is plain if the law is clear at the time of direct appellate review, even though governing law was unclear at time of trial”); United States...

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  • United States v. Calabretta, No. 14-3969
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 26 July 2016
    ...also to how future judicial proceedings will be affected by our plain error analysis in each case. United States v. Escalante – Reyes , 689 F.3d 415, 457 n.22 (5th Cir.2012) (Smith, J., dissenting). The majority's conclusion that the fourth prong has been met in this case will affect future......
  • United States v. Gibson, No. 15-20323
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 November 2017
    ...only if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." UnitedStates v. Escalante-Reyes , 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alterations and quotation marks omitted).8 In the money laundering context, the salient "merger" question is "w......
  • State v. Kelley, No. A12–0993.
    • United States
    • Supreme Court of Minnesota (US)
    • 22 October 2014
    ...31.02. After all, whether an error is plain is not about “what the law is” but “how clear the law is,” United States v. Escalante–Reyes, 689 F.3d 415, 429 (5th Cir.2012) (Smith, J., dissenting), and there is no reason why a rule or statute focusing on the latter question 855 N.W.2d 293must ......
  • United States v. Carthorne, No. 11–4870.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 13 August 2013
    ...by counsel, sometimes by the court, and sometimes, as in this case, by both the court and counsel. See United States v. Escalante–Reyes, 689 F.3d 415 (5th Cir.2012) (en banc): [T]he purpose of plain error review in the first place is so that justice may be done. The contemporaneous objectio......
  • Request a trial to view additional results
240 cases
  • United States v. Calabretta, No. 14-3969
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 26 July 2016
    ...also to how future judicial proceedings will be affected by our plain error analysis in each case. United States v. Escalante – Reyes , 689 F.3d 415, 457 n.22 (5th Cir.2012) (Smith, J., dissenting). The majority's conclusion that the fourth prong has been met in this case will affect future......
  • United States v. Gibson, No. 15-20323
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 November 2017
    ...only if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." UnitedStates v. Escalante-Reyes , 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alterations and quotation marks omitted).8 In the money laundering context, the salient "merger" question is "w......
  • State v. Kelley, No. A12–0993.
    • United States
    • Supreme Court of Minnesota (US)
    • 22 October 2014
    ...31.02. After all, whether an error is plain is not about “what the law is” but “how clear the law is,” United States v. Escalante–Reyes, 689 F.3d 415, 429 (5th Cir.2012) (Smith, J., dissenting), and there is no reason why a rule or statute focusing on the latter question 855 N.W.2d 293must ......
  • United States v. Carthorne, No. 11–4870.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 13 August 2013
    ...by counsel, sometimes by the court, and sometimes, as in this case, by both the court and counsel. See United States v. Escalante–Reyes, 689 F.3d 415 (5th Cir.2012) (en banc): [T]he purpose of plain error review in the first place is so that justice may be done. The contemporaneous objectio......
  • Request a trial to view additional results

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