Sunday, October 06, 2019

Case o' The Week: Read 'Em or Weep - Becerra and Structural Error

Prominent crim-law jurists tangle over knotty Weaver.

United States v. Becerra, 2019 WL 4582835 (9th Cir. Sept. 23, 2019), decision available here.

Players: Decision by Judge Berzon, joined by ED PA DJ Robreno.
  Dissent by Judge Graber.

Facts: Becerra was tried on drug charges. Id. at *1. At the pretrial conference, the district court explained that it would give the jury written instructions, would confirm that the jury read them, but the DJ would not actually read the instructions aloud unless the instructions later changed. Id. Neither party objected. Id.
  The district court read preliminary instructions to the jurors, but did not read the substantive instructions or explain the elements. Id. at *2. The court later confirmed with each juror that they had read the draft instructions, and – for a few new or modified instructions – the judge read the instructions aloud. Id. at *2. “The district court did not after the close of evidence read aloud any of the remaining twenty-seven instructions, or otherwise orally instruct the jurors as to the substantive law.” Id.
  Becerra was convicted of all counts. Id.

Issue(s): “Becerra [argues] . . . that the district court erred by not reading the jury instructions aloud to the jury. Becerra did not object in the district court . . . . We therefore review the failure to provide an oral jury charge for plain error.” Id. at *3.
  “[The government] recognizes that, as [Guam v. Marquez, 963 F.2d 1311 (9th Cir. 1992)] makes clear, the district court in this case erred by not reading the essential jury instructions aloud. Rather, the government’s central contention is that Marquez is not here binding as to its second holding—that the failure of the district court to read jury instructions aloud to the jurors in open court is structural error and so not subject to harmless error analysis.” Id. at *5.

Held: “[ ] Marquez is binding on us not only with regard to its substantive holding as to the necessity of oral jury instructions but also as to its second holding—that the district court committed structural error by failing to read an oral charge to the jurors.” Id. at *5.
   “A trial court does not satisfy its duty to instruct jurors in a criminal case just by providing those jurors with a set of written instructions to use during deliberations. . . . [A] trial court abdicates its responsibility to charge the jury orally as to the elements of the charged crimes, it commits structural error. . . . We . . . reverse the conviction . . .” Id. at *1 (internal citations omitted).

Of Note: So, District Judges have to read instructions to the jury. To be honest, that’s yesterday’s news – that’s been the clear rule for three decades.
 Far more interesting in Becerra is Judge Berzon’s thoughtful analysis of how to approach structural error.
  Structural error is critically important to protect, well, structural constitutional rights, but has been under increasing attack from the Supreme Court.
  Judge Graber presses this attack, arguing in dissent that this plain error was not structural, and was harmless. Id. at *8 (Graber, J., dissenting, citing Weaver, 137 S.Ct. 1899 (2017)).
  The core issue in Becerra, therefore, is whether SCOTUS decisions after the Ninth’s ’92 Marquez opinion undermined the Ninth’s rule that failure to orally advise the jury is structural error? Id. at *8.
  “Nope,” concludes the majority. Id. at *5.
  Writing for the Court, Judge Berzon carefully describes the case-by-case analysis necessary for structural error – an approach that jives with SCOTUS dictates.
   Appellate folks, this battle is worth a close read: the Berzon v. Graber debate over Weaver sets the stage for future structural error battles to come.

How to Use: Remember Becerra and object when a frazzled DJ wants to skip reading a new jury instruction at the end of a long trial. It is a rare, bright-line rule: written instructions alone won’t cut it.
For Further Reading: Weaver is referenced thirteen times, in Judge Berzon's and Judge Graber's debate. What does that Supreme Court decision mean? 
   For an interesting overview of Justice Kennedy’s opinion, see Prof. Rory Little’s piece here 

Steven Kalar, Federal Public Defender ND Cal. Website at


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