United States v. Pizarro , 772 F.3d 284 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-1759
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL LUIS PIZARRO, a/k/a WEE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Lipez and Kayatta,
Circuit Judges.
Mauricio Hernández Arroyo for appellant.
Myriam Yvette Fernández-González, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Thomas F. Klumper, Assistant United
States Attorney, were on brief, for appellee.
November 14, 2014
LIPEZ, Circuit Judge. In this appeal of Angel Luis
Pizarro-Morales ("Pizarro") from his conviction and sentence for
conspiracy to distribute cocaine and heroin and for possession with
intent to distribute cocaine, we must examine the impact of Alleyne
v. United States, 133 S. Ct. 2151 (2013), on the aggravated drug
conspiracy and possession convictions. Pursuant to that inquiry,
we hold that the district court erred by failing to instruct the
jury on the essential element of individualized drug quantity for
the aggravated conspiracy count and the essential element of drug
quantity for the aggravated possession count before applying a
statutory sentencing range that included a mandatory minimum
sentence on each count. However, since we "conclude[] beyond a
reasonable doubt that the omitted element[s] [were] uncontested and
supported by overwhelming evidence, such that the jury verdict
would have been the same absent the error[s]," we find the
instructional Alleyne errors harmless. Neder v. United States, 527
U.S. 1, 17 (1999). Therefore, we affirm Pizarro's convictions for
the aggravated conspiracy and possession charges with enhanced drug
quantities under 21 U.S.C. § 841(b)(1)(A).
Still, we must vacate Pizarro's sentence and remand for
a fourth sentencing under § 841(b)(1)(A) because the district court
overlooked our prior remand order by refusing to engage in
credibility assessments with respect to the conspiracy drug
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quantity the court attributed to Pizarro and by refusing to
consider Pizarro's arguments regarding the firearm enhancement.
I.
A. First Sentencing and Appeal
After a ten-defendant trial that lasted approximately
seven months in 1999, Pizarro was found guilty of conspiracy to
distribute cocaine and heroin and possession with intent to
distribute cocaine. In 2002, pursuant to an order of the First
Circuit Judicial Council, the case was reassigned for sentencing.1
The statutory sentencing ranges for drug conspiracy and
possession, prescribed in 21 U.S.C. § 841(b)(1), vary depending
upon the amount of drugs involved. For a conspiracy or possession
that involves only small or non-quantified amounts of cocaine or
heroin, there is no mandatory minimum sentence and the statutory
maximum sentence is twenty years of imprisonment. See 21 U.S.C.
§ 841(b)(1)(C). At the other end of the spectrum, when a
conspiracy or possession involves five kilograms or more of cocaine
or one kilogram or more of a mixture or substance containing a
detectable amount of heroin, the sentencing range runs from a
1
In response to a backlog of cases on the trial judge's
docket, the case was randomly reassigned to another district judge
so that sentencing could be expedited. See United States v. Casas,
425 F.3d 23, 54-55 (1st Cir. 2005).
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mandatory minimum of ten years to a maximum of life imprisonment.
Id. § 841(b)(1)(A).2
At sentencing, the district court determined that
§ 841(b)(1)(A)'s statutory maximum of life imprisonment applied
because the conspiracy involved five kilograms or more of cocaine
or one kilogram or more of a mixture or substance containing
heroin. By a preponderance of the evidence, the court found
Pizarro accountable for more than 150 kilograms of cocaine and
applied a two-level enhancement for weapon possession and a three-
level role enhancement. The court then imposed a life sentence,
which at that time was mandated by the Sentencing Guidelines.
Pizarro appealed his conviction and sentence. We affirmed
Pizarro's conviction but vacated his sentence because of error
under United States v. Booker, 543 U.S. 220 (2005). See United
States v. Casas, 425 F.3d 23, 59-60 (1st Cir. 2005).3
Pizarro and multiple co-appellants also argued that there
was error under Apprendi v. New Jersey, 530 U.S. 466 (2000). In
Apprendi, the Supreme Court held that "[o]ther than the fact of a
2
Section 841(b)(1)(B) provides for a five-year mandatory
minimum and a forty-year statutory maximum sentence for specified
drug quantities less than those listed in subsection (A).
3
We held that Booker error existed insofar as the sentencing
had occurred under a mandatory Guidelines system. Given that the
government conceded that it could not prove harmless error, i.e.,
it could not "show beyond a reasonable doubt that a lower sentence
would not be imposed under the post-Booker regime," we vacated
Pizarro's sentence and remanded for resentencing. Casas, 425 F.3d
at 59-60.
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prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Id. at 490. Pizarro
and his co-appellants asserted that since drug quantity for the
conspiracy count was a fact that increased the statutory maximum
sentence, it should have been found by a jury beyond a reasonable
doubt. They argued that in the absence of such a jury
determination, § 841(b)(1)(C)'s default statutory maximum sentence
of twenty years should have applied to the conspiracy count.
In response to this argument, we held that "for Apprendi
purposes, it is the drug quantity attributable to the entire
conspiracy that determines the statutory maximum." Casas, 425 F.3d
at 66 n.58. We concluded that any Apprendi error, if one occurred,
was harmless because (1) the evidence overwhelmingly established
that the conspiracy involved at least five kilograms of cocaine or
one kilogram of heroin, amounts that support a statutory maximum of
life imprisonment, and (2) Pizarro and his co-appellants had not
pointed to any evidence that the conspiracy-wide quantity was under
that threshold amount or offered any argument as to how the jury
could have found otherwise. Id. at 65-66. We explained that the
appellants did not contest the evidence of conspiracy-wide drug
quantity -- the amount that sets the statutory maximum for
Apprendi purposes. Id. at 66 & n.58. We therefore ordered that
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"on remand for re-sentencing the appropriate statutory maximum will
be life imprisonment as stated in § 841(b)(1)(A)." Id. at 66.
In remanding, we "clarif[ied] that the jury verdict of
guilty did not determine the amount of drugs attributed to each
defendant," id. at 64 n.56, which was necessary for sentencing
under the Sentencing Guidelines. Cooperating witnesses had
testified about drug quantity, and, at sentencing, defendants had
called into question the credibility of those witnesses. Id. We
explained that the district court had to make credibility
determinations in order to calculate individualized drug quantity,
and we made clear that "[a]ny conclusion as to individual drug
quantity should be based on review of the entire record." Id. We
also observed that a number of the Presentence Reports ("PSRs")
contained the "defect" of not including "findings as to the
quantities or types of drugs attributable to the individual
defendants." Id. at 63.
Pizarro and his co-appellants had also argued that the
successor judge responsible for the initial sentencing had not
adequately familiarized himself with the voluminous record. We
held that a replacement judge could become sufficiently familiar
with the record to assess credibility, but we declined to analyze
the sentencing judge's familiarity because we were vacating the
sentences on independent Booker grounds. Casas, 425 F.3d at 56-57.
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B. Second Sentencing and Appeal
In 2006, the district court found Pizarro responsible for
more than 4,200 kilograms of cocaine. The court imposed a two-
level firearm enhancement and a two-level enhancement for Pizarro's
leadership role in the offense. The court resentenced Pizarro to
360 months (30 years) in prison. Pizarro again appealed, and we
vacated his sentence for a second time because the district court
had not analyzed witness credibility in calculating the drug
quantity in the conspiracy foreseeable to Pizarro. United
States v. Correy, 570 F.3d 373, 378-82 (1st Cir. 2009). We ordered
the district court on remand to make independent credibility
assessments as necessary to resolve the facts in dispute. Id. at
379-82, 400, 402.
We also found that Pizarro's PSR had the same problematic
lack of support that, on Pizarro's first appeal, we had
specifically noted in the PSRs of several of Pizarro's co-
appellants. Id. at 398-400. Therefore, we ordered the Probation
Office to provide Pizarro with a proper PSR that identified
specific drug quantities attributable to him, "include[d]
references to the trial record" that supported those drug
quantities, and "identifie[d] the trial transcripts which
support[ed] any conclusion that he possessed weapons or that weapon
possession by co-conspirators was foreseeable to him." Id. at 384,
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401.4 We further ordered that "Pizarro should have a real
opportunity to challenge [an] inference [that he could foresee the
use of weapons] by arguing the question of foreseeability to a
fact-finder willing to consider his arguments," and we left
Pizarro's challenge to a leadership enhancement, a fact-specific
issue, to be resolved on remand. Id. at 401.
C. Third Sentencing and Appeal
Pizarro's case was reassigned for a second time to a
different district court judge because the former sentencing judge
had retired. On May 15, 2012, the district court found Pizarro
responsible for in excess of 150 kilograms of cocaine and
resentenced him under § 841(b)(1)(A) to 280 months (23 1/3 years)
of imprisonment as to each count to be served concurrently.
Pizarro now appeals for a third time, making numerous arguments,
including that the district court committed an Alleyne error by
applying a mandatory minimum sentence without the requisite drug
quantity findings by the jury. Notably, that argument challenges
the convictions for the aggravated offenses with enhanced drug
4
Pursuant to Federal Rule of Criminal Procedure 32(c), the
probation officer generally must conduct a presentence
investigation and submit a report to the court before it imposes a
sentence. Rule 32(e) provides that the Probation Office must
provide the PSR to the defendant, the defendant's attorney, and an
attorney for the government at least thirty-five days before the
sentencing, and Rule 32(f) provides the procedures for the parties'
objections to the PSR. The sentencing court then examines the PSR
and the objections to the PSR when deciding the proper sentence and
considering the requisite factors for that sentence, such as the
credibility determinations here.
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quantities under § 841(b)(1)(A). He also maintains that the
district court committed multiple sentencing errors, some of which
resulted from its failure to comply with our remand instructions in
Casas and Correy.
II.
We first analyze the claim of Alleyne error related to
Pizarro's convictions.
A. The Alleyne Rule
In Alleyne, the Supreme Court held that "any fact that
increases the mandatory minimum is an 'element' that must be
submitted to the jury." Alleyne, 133 S. Ct. at 2155. Therefore,
a district court errs by applying a statutory mandatory minimum as
the sentencing starting point without a jury finding on the fact
that triggers that minimum. The Supreme Court held that such a
rule was required by the Apprendi principle that "[a]ny fact that,
by law, increases the penalty for a crime is an 'element' that must
be submitted to the jury and found beyond a reasonable doubt."
Alleyne, 133 S. Ct. at 2155 (citing Apprendi, 530 U.S. at 483 n.10,
490). In Alleyne, the Supreme Court expressly overruled its prior
holding in Harris v. United States, 536 U.S. 545 (2002), that the
jury did not need to find a fact that increases the mandatory
minimum. Alleyne, 133 S. Ct. at 2155. The government properly
concedes that Alleyne error occurred with respect to both the
conspiracy and possession counts.
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B. The Application of Alleyne to this Appeal
The Supreme Court's decision in Alleyne applies to any
case pending on direct appeal at the time Alleyne was decided. See
Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ("[A] new rule for
the conduct of criminal prosecutions is to be applied retroactively
to all cases . . . pending on direct review or not yet final, with
no exception for cases in which the new rule constitutes a 'clear
break' with the past."). In Ramirez-Burgos v. United States, 313
F.3d 23 (1st Cir. 2002), we held that a new Supreme Court precedent
-- Jones v. United States, 526 U.S. 227 (1999) -- applied
retroactively to Ramirez's case. Ramirez-Burgos, 313 F.3d at 29.
We had previously affirmed Ramirez's convictions, vacated his
sentence, and remanded to the district court for resentencing. Id.
at 27. After Ramirez was resentenced and one day after he filed
his reply brief in his second appeal, the Supreme Court decided
Jones. Id. at 28. Citing Griffith, we held that Ramirez could
bring a new claim of jury-instruction error under Jones because
Ramirez's case was still on direct appeal at the time Jones was
decided. Id. at 29 (citing Griffith, 479 U.S. at 328). See also
Berman v. United States, 302 U.S. 211, 212 (1937) ("Final judgment
in a criminal case means sentence. The sentence is the
judgment."); United States v. Dodson, 291 F.3d 268, 275-76 (4th
Cir. 2002) (holding that where court of appeals affirms convictions
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but vacates sentence and remands for resentencing on any count,
judgment of conviction is not final as to all counts).
Alleyne was decided in 2013 after we had twice vacated
Pizarro's sentence and remanded for resentencing, and after Pizarro
had filed his opening brief in this third appeal. The fact that
the Supreme Court denied Pizarro's petition for a writ of
certiorari after his first appeal, Pizarro-Morales v. United
States, 546 U.S. 1199 (2006), does not change the fact that his
judgment of conviction was not final at the time Alleyne was
decided, given that we had vacated his sentence and remanded for
resentencing. See Berman, 302 U.S. at 212 (indicating that a
judgment of conviction would not be final if the sentence were
vacated); see also Mercer v. Theriot, 377 U.S. 152, 153 (1964) (per
curiam) (holding "it is settled that [the Supreme Court] may
consider questions raised on the first appeal [after which the
Court denied a petition for a writ of certiorari], as well as those
that were before the court of appeals upon the second appeal,"
after which the Court granted a petition for a writ of certiorari
(internal quotation marks omitted)); Dodson, 291 F.3d at 276 n.3
(citing Mercer for the proposition that following a second direct
appeal brought after a resentencing hearing ordered by the court of
appeals in a criminal defendant's first direct appeal, the
defendant can petition the Supreme Court for certiorari as to every
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issue, including those the court of appeals denied in his first
appeal).
Therefore, as the government recognizes in its
supplemental brief,5 Pizarro's case was pending on direct appeal at
the time that the Supreme Court handed down Alleyne, and Pizarro
can now challenge his convictions under the new rule announced in
Alleyne. See Ramirez-Burgos, 313 F.3d at 29.
C. The Alleyne Errors Here
Before explaining the Alleyne errors that the government
concedes, we must first address the government's claim that Pizarro
may have waived his Alleyne argument because of the way he
conducted this appeal. The government takes the position that
"[w]hen Pizarro filed his appellate brief on February 13, 2013, he
had the opportunity but failed to raise on appeal the claim that
his sentence was imposed in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000), since the 10-year mandatory minimum was based
on the court's findings as to drug quantity." However, the
government is simply wrong. Pizarro did raise his Alleyne claim in
his opening brief by arguing that "a conspiracy-wide, judicial
determination of quantity by a preponderance [of the evidence] for
the purpose of establishing a statutory sentencing range in a 21
U.S.C. § 846 conspiracy is error." He concluded that "after
5
During oral argument, we instructed the government and
Pizarro to file supplemental briefs on the Alleyne issue.
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Apprendi, a jury should be required to make an individual
determination of drug quantity beyond a reasonable doubt to
establish a statutory sentencing range in a 21 U.S.C. § 846conspiracy." The argument that the "statutory sentencing range"
was applied in error inescapably encompassed an Alleyne claim
regarding the mandatory minimum. As the government says he should
have done, Pizarro cited Apprendi to support this argument. Hence,
under the standard set out by the government itself, Pizarro raised
his Alleyne claim on appeal in his opening brief.6
Moreover, in his supplemental brief filed after oral
argument, Pizarro specifically characterizes his claim as one under
Alleyne. Under our precedent on Apprendi, Pizarro's supplemental
brief alone would have been sufficient to raise the Alleyne claim.
See United States v. LaFreniere, 236 F.3d 41, 48 (1st Cir. 2001)
(finding that Apprendi issue was "properly submitted for
disposition" where "we extended an invitation to LaFreniere and the
government to supplement their briefs addressing the possible
relevance of Apprendi"). Hence, we reject the government's
position in its supplemental brief that Pizarro's "Alleyne claim is
potentially waived" on appeal.
Under Apprendi and now Alleyne, each of the subsections
of 21 U.S.C. § 841(b)(1), with its associated drug quantities and
6
As the government itself implicitly recognizes, Pizarro
could not have cited Alleyne as authority in his opening brief
because it was filed before Alleyne was decided.
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sentencing ranges, is a separate crime. Indeed, the Supreme Court
has so held. Citing Alleyne and Apprendi, the Supreme Court in
Burrage v. United States, 134 S. Ct. 881 (2014), explained that
because an aggravating element in § 841(b)(1) -- that death results
from the use of the distributed drug -- "increased the minimum and
maximum sentences to which [the defendant] was exposed, it is an
element that must be submitted to the jury and found beyond a
reasonable doubt." Burrage, 134 S. Ct. at 887 (citing Alleyne, 133
S. Ct. at 2162-63; Apprendi, 530 U.S. at 490).7 Burrage concluded
that a violation of § 841(a)(1), without a finding on the "death
results" aggravating element, is a lesser-included offense of the
aggravated offense that includes the "death results" element under
§ 841(b)(1). 134 S. Ct. at 887 n.3. See also United States v.
Pena, 742 F.3d 508, 517, 519 (1st Cir. 2014) (same). Just as the
"death results" element makes the distribution of drugs where death
results a separate crime from the distribution of drugs without a
death resulting, drug quantity in § 841(b)(1) creates aggravated
conspiracy and possession offenses.
Under Alleyne, the operative question for a drug
conspiracy is whether it is the individualized drug quantity that
is a "fact that increases the mandatory minimum" sentence, Alleyne,
133 S. Ct. at 2155. We have already answered that question in
United States v. Colón-Solís, 354 F.3d 101 (1st Cir. 2004), where
7
Like the aggravating element of drug quantity, "death
results" is a distinct aggravating element in § 841(b)(1).
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we held that a mandatory minimum "is made potentially available by
a finding that the conspiracy as a whole handled (or at least
contemplated) the necessary triggering amount," but a mandatory
minimum "cannot be applied in [a particular coconspirator's] case
without an individualized finding that the triggering amount was
attributable to, or foreseeable by, him." Id. at 103.8 Colón-
Solís was decided prior to Alleyne; therefore, after Colón-Solís,
that individualized finding was made by the sentencing judge.
However, following the Supreme Court's decision in Alleyne, the
drug quantity that triggers the mandatory minimum for a 21 U.S.C.
§ 846 conspiracy, like the drug quantity that triggers the
statutory maximum under Apprendi, must now be found by a jury
beyond a reasonable doubt.9 But, those quantities serve different
purposes: while it is the conspiracy-wide quantity that governs
the statutory maximum, Casas, 425 F.3d at 66 n.58, it is the
individualized quantity, i.e., the quantity that is foreseeable to
8
Casas itself recognized this principle: "In the absence of
such an individualized finding, the drug quantity attributable to
the conspiracy as a whole cannot automatically be shifted to the
defendant." Casas, 425 F.3d at 57-58 (quoting Colón-Solís, 354
F.3d at 103).
9
In United States v. Paladin, 748 F.3d 438 (1st Cir. 2014),
the defendant also made the argument that, after Alleyne, Colón-
Solís required the jury to find an individualized drug quantity
triggering a mandatory minimum, but it was unnecessary for us to
decide the issue in that case. See id. at 452-53 ("Paladin urges
a collective reading of Colón-Solís and Alleyne to require that the
jury make an individualized finding as to the quantity of drugs
attributable to a particular defendant.").
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the defendant, that triggers the mandatory minimum, Colón-Solís,
354 F.3d at 103.
Having been indicted for conspiring to possess with
intent to distribute 1.4 kilograms of heroin and 9,445 kilograms of
cocaine, Pizarro most recently was sentenced on the conspiracy
count to 23 1/3 years in prison under 21 U.S.C. § 841(b)(1)(A),
which applies a mandatory minimum sentence of ten years
imprisonment. Pizarro is correct, however, that the jury did not
make a finding with respect to the quantity of drugs in the
conspiracy foreseeable to him.10 Indeed, we have already held that
to be the case: "We wish to clarify that the jury verdict of
guilty did not determine the amount of drugs attributed to each
defendant." Casas, 425 F.3d at 65 n.56. Therefore, Alleyne error
occurred in Pizarro's case in the conspiracy conviction.
There was also Alleyne error in Pizarro's possession
conviction. He was indicted for possession with intent to
distribute eighty-one kilograms of cocaine and, as with the
conspiracy count, was sentenced on the possession count to 23 1/3
years of imprisonment under § 841(b)(1)(A), carrying the ten-year
mandatory minimum. However, the jury did not make the requisite
finding of drug quantity for that sentence. In fact, the jury was
instructed that quantity was irrelevant: "The United States is not
10
Pizarro's trial occurred years before the Supreme Court
decided Alleyne; hence, there was no precedent at the time
requiring the jury to make the individualized drug quantity finding
on the conspiracy count.
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required to prove that the amount or quantity was as charged in the
indictment. It need only prove beyond reasonable doubt that there
was a measurable amount of the controlled substance."11
Henceforth, under Alleyne and Apprendi, the jury must
find the mandatory-minimum and statutory-maximum triggering
elements. In a drug conspiracy or possession conviction with a
mandatory minimum and statutory maximum based on drug quantity, the
jury must find those requisite drug quantities.12 For example, for
a cocaine conspiracy conviction under § 841(b)(1)(A), which imposes
a mandatory minimum of ten years and a statutory maximum of life
imprisonment, the jury must now find that the defendant (1)
conspired, § 846; (2) knowingly or intentionally to distribute
11
Again, this instruction reflected the state of the law at
that time.
12
On the other hand, where the mandatory minimum and statutory
maximum do not depend on drug quantity, the court, without any jury
finding, may make its own drug quantity findings for sentencing
purposes. For example, during sentencing for a conviction under
§ 841(b)(1)(C), where the indictment had not specified the quantity
of cocaine or heroin or only charged small amounts, a district
court may make an individualized drug quantity finding for a
conspiracy charge (and a drug quantity finding for a possession
charge) by a preponderance of the evidence to determine the
advisory Guidelines sentence. See Ramírez-Negrón, 751 F.3d at 48-
49 (recognizing that the district court may make drug quantity
findings by a preponderance of the evidence to calculate an
advisory Guidelines sentence for a § 841(b)(1)(C) offense). After
calculating that advisory Guidelines sentence, the district court
must then use its discretion to impose a sentence within the
statutory sentencing range mandated by the jury's verdict. If, for
a conviction under § 841(b)(1)(C), the court determines that the
advisory Guidelines sentence is greater than twenty years,
§ 841(b)(1)(C)'s statutory twenty-year maximum nevertheless caps
any sentence that the district court can give.
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cocaine, § 841(a)(1); (3) in a conspiracy that involved a total of
five kilograms or more of cocaine, § 841(b)(1)(A); Apprendi, 530
U.S. at 490; (4) where at least five kilograms of cocaine were
foreseeable to the defendant, § 841(b)(1)(A); Alleyne, 133 S. Ct.
at 2155; Colón-Solís, 354 F.3d at 103.13 For a possession
conviction under § 841(b)(1)(A), a crime that by its nature only
assesses the conduct of an individual, rather than the conduct of
co-conspirators, the jury must find that the defendant (1)
knowingly or intentionally possessed with intent to distribute,
§ 841(a)(1); (2) at least five kilograms of cocaine,
§ 841(b)(1)(A); Apprendi, 530 U.S. at 490; Alleyne, 133 S. Ct. at
2155.14
13
In the case of a cocaine conspiracy, if the jury makes the
required threshold findings of at least five kilograms, but does
not indicate a specific quantity, and the district court chooses to
sentence above the mandatory minimum, the court must make an
individualized drug quantity finding by a preponderance of the
evidence. The court would have to find the specific quantity of
cocaine foreseeable to the defendant to determine the recommended
sentence under the Sentencing Guidelines. See Colón-Solís, 354
F.3d at 103. That fact-finding may require credibility assessments
for any witnesses on whose testimony the court relies. See Correy,
570 F.3d at 380-81. In its discretion, the court will then impose
a sentence within the statutory range.
14
As with a conspiracy conviction, if the jury makes the
required threshold finding of at least five kilograms for a cocaine
possession count, but does not indicate a specific quantity, and
the district court chooses to sentence above the mandatory minimum,
it must make a drug quantity finding by a preponderance of the
evidence to determine the recommended sentence under the
Guidelines. The court will then use its discretion to impose a
sentence within the statutory range.
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D. The Nature of Alleyne Error
There are different forms of Alleyne error that can lead
to a sentence, imposed after a jury trial, involving the improper
application of a mandatory minimum without the requisite jury
finding. One form of Alleyne error is analyzed as a trial error,
another as a sentencing error. The nature of the Alleyne error
affects the remedy that might be available to a defendant.
In Alleyne itself, the error was of the sentencing
variety. The jury verdict form in Alleyne had included the
applicable minimum-triggering element in that case (brandishing of
a firearm) as an optional finding that the jury should consider.
The jury instead "indicated on the verdict form that Alleyne had
'[u]sed or carried a firearm during and in relation to a crime of
violence,' but did not indicate a finding that the firearm was
'[b]randished.'" Alleyne, 133 S. Ct. at 2156. The trial court,
however, applied the mandatory minimum based on its own finding by
a preponderance of the evidence that the defendant had brandished
the weapon. Id. Thus, the error in Alleyne was confined to
sentencing, where the district court made a finding on an
aggravating element that was presented to and rejected by the jury.
In essence, the trial judge sentenced Alleyne for "a separate,
aggravated offense," id. at 2162, that the jury had itself decided
not to find beyond a reasonable doubt. See, e.g., Price v.
Georgia, 398 U.S. 323, 328-29 (1970) (holding that where jury was
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instructed on both a greater offense and lesser-included offense
and the jury convicted on the lesser-included offense, the double
jeopardy provision prohibited retrial on the greater offense).
Therefore, the Supreme Court vacated Alleyne's sentence and
"remand[ed] for resentencing consistent with the jury's verdict,"
id. at 2164, which would mean that Alleyne should only be sentenced
for the offense of using or carrying a firearm in relation to a
crime of violence.
On the other hand, where a defendant was indicted for and
convicted of an aggravated offense and the jury was not instructed
on the element triggering the statutory mandatory minimum sentence,
but that minimum was nevertheless applied at sentencing, the
Alleyne error is analyzed as an instructional error, occurring at
trial. The Supreme Court's decision in Washington v. Recuenco, 548
U.S. 212 (2006), dictates this conclusion. There, the jury had
found the defendant guilty of assault while armed with a deadly
weapon, but the judge sentenced the defendant, over his objection,
for assault while armed with a firearm, a separate, aggravated
offense subject to a greater statutory maximum sentence. See id.
at 215-216, 225. Unlike in Alleyne, the Recuenco jury had not been
given the option of finding the aggravating element, i.e., that the
deadly weapon was a firearm. Id. The trial court, therefore,
committed Apprendi error by imposing a mandatory statutory
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sentencing enhancement without a jury finding on the requisite
aggravating element of a firearm.15
The Supreme Court held that the "[f]ailure to submit a
sentencing factor to the jury," which increases the statutory
maximum, i.e., the Apprendi error, was "indistinguishable" from the
"failure to submit an element to the jury" that occurred in Neder
v. United States, 527 U.S. 1 (1999).16 Recuenco, 548 U.S. at 220,
222. In Neder, the district court erred by refusing to instruct
the jury on "materiality" as an element of tax fraud. Neder, 527
U.S. at 4. Recuenco explained that "[b]ecause Neder's jury did not
find him guilty of each of the elements of the offenses with which
he was charged, its verdict is no more fairly described as a
complete finding of guilt of the crimes for which the defendant was
sentenced than is the verdict here." Recuenco, 548 U.S. at 221.
Hence, in a case where the jury was not instructed on an
15
The Supreme Court characterized the Apprendi error in
Recuenco as Blakely error. Recuenco, 548 U.S. at 216. As the
Court explained, "In Blakely [v. Washington, 542 U.S. 296 (2004)],
we clarified that 'the "statutory maximum" for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.'"
Recuenco, 548 U.S. at 216 (quoting Blakely, 542 U.S. at 303).
16
The element that increased the statutory maximum in Recuenco
is more properly termed an "aggravating element" than a "sentencing
factor." The Supreme Court explained in Apprendi that the term
"sentencing factor" "appropriately describes a circumstance, which
may be either aggravating or mitigating in character, that supports
a specific sentence within the range authorized by the jury's
finding that the defendant is guilty of a particular offense."
Apprendi, 530 U.S. at 494 n.19. Hence, we refer to a factor that
increases the statutory maximum or minimum as an "aggravating
element," as opposed to a "sentencing factor."
-21-
aggravating element and thus necessarily did not make a finding on
that element, the Supreme Court explicitly equated the Apprendi
error of imposing that element's associated statutory sentencing
enhancement with the Neder failure to instruct on an element of the
offense. Likewise, even before the Supreme Court decided Recuenco,
we too had analyzed Apprendi error as a failure to instruct the
jury. See, e.g., United States v. Pérez-Ruiz, 353 F.3d 1, 17 (1st
Cir. 2003) (analyzing an Apprendi error in a drug conspiracy case
as "the failure to submit the necessary drug type and quantity
questions to the jury").
Just as an Apprendi error can result from the failure to
instruct on the maximum-triggering element, an Alleyne error can
result from the failure to instruct on the minimum-triggering
element. Indeed, the Alleyne errors in Pizarro's case resulted
from such instructional omissions. The district court did not
instruct the jury on the individualized drug quantity element of
the conspiracy charge or the drug quantity element of the
possession charge. Hence, an instructional Alleyne error, like an
instructional Apprendi error, is properly reviewed under the
Supreme Court's jurisprudence on the failure to instruct on an
element of the crime.
The distinction between the Alleyne sentencing error that
occurred in Alleyne itself and the Alleyne instructional errors
that we have here affects the availability of harmless or plain
-22-
error review. In a case where the trial court made a finding on an
aggravating element that was rejected by the jury (as in
Alleyne itself), the standard of review makes no difference. After
Apprendi and Alleyne, if a sentencing court imposes a sentence for
an aggravated crime that the jury has considered and rejected, the
error will always be plain and such an aggravated sentence must
necessarily be vacated. On the other hand, where the court failed
to instruct the jury on an aggravating element (as in Recuenco),
the jury never had a chance to make a finding on that element. In
such a situation, either harmless or plain error review (depending
on whether the error was preserved) is appropriate to determine
whether a reasonable jury necessarily would have found the
aggravating element beyond a reasonable doubt. See United States
v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014); cf. United
States v. Cotton, 535 U.S. 625, 631-34 (2002) (applying plain error
review to an unpreserved Apprendi error).17
17
The writing judge believes that, because each subsection of
§ 841(b)(1) defines a separate crime, Burrage, 134 S. Ct. at 887 &
n.3, a court may not solve a non-harmless (or plain) Alleyne
instructional error by taking a mandatory minimum (or the absence
of one) from one subsection and a statutory maximum from another.
In other words, if the court had found the Alleyne error here non-
harmless, the writing judge believes the new sentencing range could
not have been zero years to life imprisonment -- i.e., taking the
absence of a mandatory minimum from § 841(b)(1)(C) and the
statutory maximum of life imprisonment from § 841(b)(1)(A). He
concludes that, under the logic of Burrage, such an approach would
amount to legislating a wholly new crime and, hence, a non-harmless
(or plain error) failure to instruct on the drug quantity elements
would require vacating the conspiracy and possession convictions
under § 841(b)(1)(A) carrying the mandatory minima.
-23-
E. Pizarro's Preservation of the Alleyne Error at Sentencing
Although instructional errors ordinarily must be
preserved at the time of trial, our precedent holds that
instructional Apprendi errors are preserved even if a defendant
does not object until sentencing. See, e.g., United States v.
Díaz-Arias, 717 F.3d 1, 25 (1st Cir. 2013). Observing that a party
has an obligation to object only to something "inimical to his
cause," we have noted that a defendant would have "no interest in
ensuring his eligibility for a longer sentence." Pérez-Ruiz, 353
F.3d at 14. Moreover, we have recognized that "a defendant will
not know whether there is an Apprendi error until sentencing, and
then only if the court considers a sentence above the maximum."
United States v. Nelson-Rodriguez, 319 F.3d 12, 47 (1st Cir. 2003).
Hence, we have held that a claim of Apprendi error is preserved for
appeal if a defendant at sentencing challenges "the imposition or
proposed imposition of a term that exceeds the applicable statutory
maximum." Pérez-Ruiz, 353 F.3d at 14. In Casas, we also treated
Apprendi claims as preserved as long as the defendants had objected
at sentencing. Casas, 425 F.3d at 59-60.18
18
At least one member of the panel disagrees with our
reasoning in Pérez-Ruiz, Nelson-Rodriguez, and their progeny
holding that a defendant preserves an Apprendi claim by objecting
at sentencing. Under this view, Pérez-Ruiz et al. cannot survive
the Supreme Court's recognition that drug quantity -- or any
sentencing factor -- is an element of the charged offense. The
rationale is that, when the indictment charges an enhanced offense,
a defendant can hardly stand by silently (and then later invoke
harmless error review) when the instructions fail to include
-24-
In its supplemental brief, the government claims the
Alleyne error was unpreserved below and applies the plain error
test as part of its argument.19 As we reported in Casas, "Pizarro
objected [at his initial sentencing] that the jury did not make a
finding on the issue of drug quantity. When the district judge
asserted that there was no Apprendi issue, Pizarro's counsel
responded that '[w]e believe, Your Honor, that there is room in
that respect.'" Casas, 425 F.3d at 59. We observed that this
objection "by its nature raised Apprendi concerns," id. at 60 n.48,
which also would have sufficed to raise an Alleyne claim based on
the same Sixth Amendment right to a jury trial, see Alleyne, 133
S. Ct. at 2163 & n.5 (noting that "there is no principle or logic
to distinguish facts that raise the maximum from those that
increase the minimum"). Although Pizarro did not explicitly object
on these grounds again at his most recent sentencing hearing (his
third), our precedent suggests that, assuming Pizarro did not
abandon his original objection, the objection would have preserved
appropriate mention of drug quantity any more than the defendant
could withhold objection to the omission of any other element (such
as mens rea in a murder case that enhances the base level offense).
Adopting that view would require our court to revisit our
precedents holding otherwise. In any event, as Pizarro's
conviction survives both plain-error and harmless-error review, our
result does not depend on whether Pizarro preserved an objection to
the Alleyne error.
19
Even though Alleyne had not been decided yet, if there had
been no objection below, an Alleyne claim would have been reviewed
for plain error. See United States v. Harakaly, 734 F.3d 88, 94
(1st Cir. 2013).
-25-
the Alleyne claim for our review now. See United States v.
Amirault, 224 F.3d 9, 14 (1st Cir. 2000) (holding that claim was
preserved for subsequent appeal by objection at original sentencing
hearing). We need not resolve whether Pizarro in fact preserved
his Alleyne claim for this appeal, however, as we can conclude that
the error was in any event harmless. See, e.g., United States v.
Soto-Beníquez, 356 F.3d 1, 49 (1st Cir. 2004) ("We have already
determined that any Apprendi error as to drug amount or type would
be harmless; a fortiori, no plain error occurred."). We therefore
presume, without deciding, that harmless error review applies here.
F. Harmless Error Review for Instructional Errors
The Supreme Court addressed harmless error review for an
omitted element in Neder v. United States, 527 U.S. 1 (1999),
describing the inquiry as whether it is "clear beyond a reasonable
doubt that a rational jury would have found the defendant guilty
absent the error." Id. at 18. The Court held that "[i]n this
situation, where a reviewing court concludes beyond a reasonable
doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been
the same absent the error, the erroneous instruction is properly
found to be harmless." Id. at 17. The concurrence by the writing
judge asserts that, based on the Court's statements in Neder and
its prior precedent, the omission of an element is harmless only
when the reviewing court draws two conclusions beyond a reasonable
-26-
doubt: the element is uncontested, and the element is supported by
overwhelming evidence. In this case of instructional
Alleyne error, the concurrence takes the position that the omission
would not be harmless if the defendant had asserted either below or
on appeal that a properly instructed jury could have found in his
favor on the omitted element. The panel need not decide whether
this view of the law is correct because, in this case, we conclude
beyond a reasonable doubt both that Pizarro has never contested the
omitted drug quantity elements and that they were supported by
overwhelming evidence.
In its supplemental brief, the government argues that
Pizarro conceded that he was responsible for at least five
kilograms of cocaine. We do not examine whether Pizarro
affirmatively admitted that threshold quantity, however, because we
conclude that, like Neder, Pizarro has not contested the omitted
elements. At his first sentencing, Pizarro asserted only that the
jury did not make any drug quantity findings; he did not argue that
a contrary finding on the elements was possible. Moreover,
Pizarro's argument on appeal regarding the failure to instruct on
the drug quantity elements "establishes only that there was Alleyne
error; it says nothing about whether that error was harmless." See
United States v. Harakaly, 734 F.3d 88, 95-96 (1st Cir. 2013).
Finally, while Pizarro did make credibility arguments at sentencing
and on appeal to challenge the court's drug quantity determination
-27-
at sentencing, there is no indication that Pizarro's argument
called into question anything other than the sentencing court's
conclusion that Pizarro was responsible for more than 150 kilograms
of cocaine. Pizarro did not argue that the jury that convicted him
could have found him responsible for less than five kilograms of
cocaine.20 Hence, Pizarro did not contest the omitted drug quantity
elements.
The government also argues that overwhelming evidence
introduced at Pizarro's trial established that Pizarro was
responsible for at least five kilograms of cocaine, the requisite
drug quantity for § 841(b)(1)(A)'s ten-year mandatory minimum. A
reviewing court may conclude beyond a reasonable doubt that the
omitted element was "supported by overwhelming evidence" if the
evidence was of such a significant quantity and quality that it
"incontrovertibly establishes" the element. Neder, 527 U.S. at 16-
17; see also United States v. Bailey, 270 F.3d 83, 89 (1st Cir.
2001) (finding that evidence was not "overwhelming" because
"[w]hile a judge could permissibly find those facts by a
preponderance of the evidence, and a jury could permissibly find
them beyond a reasonable doubt, it is not so clear that a
reasonable jury must have found them beyond a reasonable doubt");
Pérez-Ruiz, 353 F.3d at 18-19 (similar). Even where the
20
We do not mean to suggest that a credibility argument,
explaining how a finding of less than five kilograms was possible,
could not have "contested" the omitted elements, as the term is
used in Neder.
-28-
government's evidence on the omitted element is "strong," that
evidence is not overwhelming if competing evidence is "not
inherently incredible." United States v. Prigmore, 243 F.3d 1, 22
(1st Cir. 2001) (citing Neder, 527 U.S. at 19).
In this case, overwhelming evidence supports the
requisite findings of at least five kilograms. The jury found
Pizarro guilty of possession with intent to distribute cocaine, and
Pizarro explained in his opening brief that DEA Agent Jay Stoothoff
testified that 81 kilograms of cocaine was the amount seized. See
also Casas, 425 F.3d at 29, 54 n.39 (explaining that two DEA agents
identified Pizarro as one of the suspects participating in the
March 21, 1994 airport transaction from which the agents secured
four suitcases containing the 81 kilograms of cocaine). At
Pizarro's first sentencing hearing, Pizarro's counsel stated that
the 81 kilograms had actually been presented in court. Further,
Pizarro's own description of the evidence includes multiple
witnesses testifying that Pizarro was involved in distributing
quantities of cocaine well over five kilograms. In fact, evidence
showed that "Pizarro coordinated the shipment of drugs through the
airport in Puerto Rico," Correy, 570 F.3d at 375, and "seven
cooperating witnesses . . . identified Pizarro as a member of the
conspiracy and described his role and specific activities therein,"
Casas, 425 F.3d at 54 n.39. Hence, we conclude beyond a reasonable
-29-
doubt that the omitted element was "supported by overwhelming
evidence." Neder, 527 U.S. at 17.
In sum, because we have found the omitted element of drug
quantity to be both uncontested and supported by overwhelming
evidence, we need not decide whether the absence of a contest is
required in order to find harmless error. In the circumstances of
this case, the jury verdict would have been the same absent the
error. We therefore find the error harmless beyond a reasonable
doubt.21
III.
We thus turn to Pizarro's claims of error related to his
most recent sentence. Independent of the Alleyne errors, which
implicated his convictions, Pizarro argues that the district court
ignored our prior remand order by refusing to engage in credibility
assessments with respect to the conspiracy drug quantity
attributable to him and by refusing to consider his arguments
21
In addition to his Alleyne arguments, Pizarro claims that
his "statutory and constitutional rights to a speedy trial and
sentencing were denied as a result of the commencement of trial 41
months after [his] indictment and the further delay of sentencing
until years after." As the government properly points out, Pizarro
has not developed this argument beyond this one sentence;
therefore, the argument is waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). Furthermore, as to pretrial
delay, we have already held that there was no Speedy Trial Act or
Sixth Amendment violation. See Casas, 425 F.3d at 30-36.
-30-
regarding the firearm enhancement. We agree, and hence we must
vacate his sentence.22
A. Individualized Drug Quantity
During the first two sentencings, the district court
concluded that the jury's guilty verdict resolved any credibility
issues about the testimony relating to the drug quantity
foreseeable to Pizarro. In both Casas and Correy, we explained
that the district court was wrong, see Casas, 425 F.3d at 64 n.56;
Correy, 570 F.3d at 378-79, and we twice ordered the district court
to conduct credibility assessments, "based on the whole record,"
see Correy, 570 F.3d at 381, when calculating individualized drug
quantity.
Pizarro pointed the district court to our decisions when
arguing that credibility assessments were required for all
witnesses on whose testimony the court was relying for its
individualized drug quantity determination. In Correy, we
explained:
On remand, the appellants developed arguments attacking
the credibility and reliability of other witnesses.
Though our discussion in the prior opinion was focused on
Martínez and Pérez, equally applicable to all witnesses
was the rationale for requiring independent credibility
assessments by the sentencing judge . . . . [A]fter our
remand, the district court should have made credibility
22
This next resentencing will be Pizarro's fourth sentencing.
As explained above, Pizarro was initially sentenced in 2002 to life
imprisonment. After his first appeal, Pizarro was resentenced in
2006 to 30 years in prison. After his second appeal, Pizarro was
resentenced in 2012 to 23 1/3 years in prison.
-31-
determinations as necessary to resolve the facts in
dispute.
570 F.3d at 379 (emphasis added). Nevertheless, in the 2012
resentencing that is the subject of this appeal, the district court
again took the position that "credibility is not an issue" to be
considered for any witnesses other than Thomas Martínez and Israel
Pérez-Delgado. Therefore, the district court relied on testimony
from other witnesses without conducting any credibility
assessments. This improper course, now repeated, directly
contravened Correy's explicit order.
The government claims that the following statement from
the district court during the 2012 resentencing indicates that it
did perform the required credibility determinations:
You point out [sic] to cross examination, to some
impeachment, other testimony, but I have to part from
that premise. There were convictions in this case as to
your client. Some others may have been acquitted, other
matters, but if you look at the global [sic] and
summarize the testimony, if you look at it globally I
understand by the preponderance of the evidence it
supports that drug finding.
(Emphasis added.) Contrary to what the government posits, the most
natural reading of this passage, particularly in light of the
district court's explicit statement that "credibility is not an
issue" for witnesses other than Martínez and Pérez-Delgado, is that
yet again "the district court did not heed our instruction, but
rather persisted in its view that the jury verdict was
controlling." Correy, 570 F.3d at 379.
-32-
"[W]here the district court has expressly made clear that
it is not conducting a credibility inquiry, it would be
disingenuous of us to act otherwise." Id. at 381. Therefore, we
must vacate Pizarro's sentence and remand for resentencing under
§ 841(b)(1)(A). The district court's credibility assessments must
be based on the whole record for all witnesses on whose testimony
the court has relied to calculate the conspiracy drug quantity
foreseeable to Pizarro. We understand the particular burden that
credibility assessments impose on the district court under the
circumstances here; however, that burden does not permit a sentence
that does not fully comport with all legal requirements.
B. Firearm Enhancement
Pizarro also asserts that the district court erred by
refusing to consider his arguments refuting the two-point firearm
enhancement. We agree. In Correy, we unambiguously asserted:
Pizarro should have a real opportunity to challenge this
inference [that the conspiracy's use of weapons would be
foreseeable to Pizarro] by arguing the question of
foreseeability to a fact-finder willing to consider his
arguments. Thus, on remand, . . . [h]e will be able to
make factual arguments attacking credibility and
foreseeability, which the court will consider and
resolve.
Correy, 570 F.3d at 401. Nevertheless, the district court refused
to hear Pizarro's arguments concerning the firearm enhancement,
incorrectly asserting numerous times that consideration of the
enhancement was "outside the scope of the remand order."
-33-
The government attempts to salvage the district court's
application of the enhancement by referring to the court's
statement that "[a]gain I mentioned that I was not going to disturb
that enhancement, but even if I were to make it anew, counsel made
the arguments, but I understand there has been testimony in this
particular case for example and again this gentleman has not been
acquitted of any Counts, other defendants have." Contrary to the
government's argument, it appears that, as with its refusal to
conduct the credibility determinations for individualized drug
quantity, the district court relied on the jury verdict instead of
conducting the inquiry we directed. While the court did point to
witness testimony regarding the "foreseeability of possession of
firearms" to Pizarro, the court erred by not considering Pizarro's
arguments regarding the enhancement or performing the credibility
determinations that we said were necessary. The court must
consider Pizarro's arguments on remand.
C. Remaining Issues
1. PSR
With respect to both the individualized drug quantity and
the foreseeable use of firearms, Pizarro claims that the most
recent PSR repeated the deficiencies that we ordered corrected in
our prior decisions. We disagree.
Previously, we directed that "the sentencing court
should, on remand, provide Pizarro with a PSR which identifies
-34-
specific drug quantities." Correy, 570 F.3d at 400. We explained
that, "[a]rmed with this PSR, Pizarro will be given a genuine
opportunity to argue that the testimony was incredible, that it
does not support the incriminating inference, and/or that it was
not foreseeable." Id. With respect to the firearm enhancement, we
directed that the PSR identify trial transcript portions that
support any conclusion that he possessed weapons or that weapon
possession was foreseeable to him. Id. at 401. We also "ordered
that the PSR include references to the trial record." See id. at
384.
As we ordered, the Second Amended PSR filed on July 7,
2011 included in paragraphs 92 through 102 a synopsis of testimony
with respect to specific drug quantities that arguably were
foreseeable to Pizarro. With respect to a firearm, paragraph 92
specifically cited testimony that Pizarro received a firearm
through the mail in August 1993. Hence, the Second Amended PSR
satisfied our order in Correy.
2. Drug Type
Pizarro argues that because the jury instructions on
conspiracy did not include the type and quantity of drugs, the jury
could have found him guilty only of conspiracy to distribute
heroin, possibly producing a lower base offense level under the
Guidelines. We disagree. The superseding indictment charged that
the conspiracy involved "approximately one thousand four hundred
-35-
grams of heroin . . . and approximately nine thousand four hundred
forty five (9,445) kilograms of cocaine." (Emphasis added.)
"Because those drug quantities and types were joined by the
conjunctive term 'and' rather than the disjunctive 'or,' there was
no ambiguity about the crime charged." Soto-Beníquez, 356 F.3d at
48-49. Further, the district court instructed the jury numerous
times that the charged conspiracy involved heroin "and" cocaine,
including when summarizing the conspiracy charge, when reading the
indictment, and when describing the proof of the conspiracy itself
and the element of intent that would be necessary for a guilty
verdict.
3. Other Sentencing Arguments
Pizarro makes a host of other sentencing arguments,
including that the sentencing court "was not familiar with the
entire record," improperly considered 18 U.S.C. § 3553 factors, and
should have granted certain downward departures and variances.
Since we are already vacating Pizarro's sentence and ordering
resentencing, we need not reach Pizarro's alternate claims. See
Correy, 570 F.3d at 401 (citing United States v. Vidal-Reyes, 562
F.3d 43, 48 (1st Cir. 2009)).
IV.
In conclusion, we hold that the district court committed
instructional Alleyne errors by failing to charge the jury on the
essential element of individualized drug quantity for the
-36-
conspiracy count and the essential element of drug quantity for the
possession count before applying the § 841(b)(1)(A) statutory
sentencing range that included a mandatory minimum sentence on each
count. Nevertheless, because we conclude beyond a reasonable doubt
that the errors did not contribute to the results obtained, we find
the errors harmless.
However, since the district court ignored our order to
conduct credibility assessments when calculating individualized
drug quantity, and to consider Pizarro's firearm enhancement
arguments, we vacate Pizarro's sentence and remand for
resentencing. When resentencing Pizarro under § 841(b)(1)(A), the
district court must (1) conduct credibility determinations, based
on the whole record, for all witnesses on whose testimony it has
relied in calculating an individualized drug quantity; (2) consider
Pizarro's arguments regarding a firearm enhancement; and (3)
consider, as usual, any additional sentencing arguments that
Pizarro has not waived and that we have not already resolved and
"such new arguments or new facts as are made newly relevant by
[our] decision -- whether by the reasoning or by the result."
United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999)
(internal quotation mark omitted).
Pizarro was arrested in 1996 and tried in 1999. Hence,
as we consider this third direct appeal, he has been in custody for
nearly two decades without a resolution of his case. Pizarro has
-37-
already been sentenced three times, and we are now remanding for a
fourth sentencing proceeding. The district court arrived at the
last concurrent sentence of 23 1/3 years of imprisonment and five
years of supervised release after calculating individualized drug
quantity and applying a firearm enhancement, without weighing
Pizarro's potentially mitigating credibility arguments. Our
vacatur and remand are for the purpose of correcting the district
court's failure to evaluate those arguments, and we therefore see
no justification for the court to impose a longer sentence on
remand than it deemed appropriate without considering credibility.
We conclude that it is just under these circumstances to direct the
district court, after considering Pizarro's arguments, to impose a
sentence no longer than the concurrent sentence of 23 1/3 years of
imprisonment and five years of supervised release. See 28 U.S.C.
§ 2106. We intimate no view on whether the sentence should be
lower.
We therefore affirm Pizarro's convictions, vacate his
sentence, and remand for resentencing consistent with this opinion.
So ordered.
– Concurring Opinions Follow –
-38-
LIPEZ, Circuit Judge, concurring. In analyzing the
complex issues in this case, I became aware of the significant
inconsistency in the way courts have reviewed for harmlessness the
failure to instruct on an element of a crime. I write separately
to express my concern regarding this inconsistency, which exists
within my circuit and in other courts, and the potentially
unconstitutional applications of Neder v. United States, 527 U.S.
1 (1999), that have resulted from it. Given that the Sixth
Amendment right to a jury trial is at stake, I urge the Supreme
Court to clarify the line between an unconstitutional, directed
guilty verdict and a harmless failure to instruct on an element.
I.
A constitutional error is harmless where the reviewing
court concludes "'beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained,'" i.e.,
"that the jury verdict would have been the same absent the error."
Neder, 527 U.S. at 15, 17 (quoting Chapman v. California, 386 U.S.
18, 24 (1967)).23 Neder expressly states that a "jury verdict would
23
My colleague incorrectly states in his concurrence that I
have rejected the Chapman harmless error standard as applicable to
this case. To the contrary, I fully embrace use of the Chapman
standard here. My view, as elaborated below, is that the Chapman
standard has a unique application where the error asserted is the
failure to obtain a jury verdict on an element of the crime.
The misunderstanding of my view is reflected in the
hypothetical offered in Section VI of the responding concurrence.
As I interpret Neder, that hypothetical could not happen. The
proposed scenario assumes that a reviewing court could conclude
beyond a reasonable doubt that the jury verdict would have been the
-39-
have been the same absent" a failure to instruct on an element,
"where a reviewing court concludes beyond a reasonable doubt that
the omitted element was uncontested and supported by overwhelming
evidence." Neder, 527 U.S. at 17 (emphasis added). Hence, since
we have concluded beyond a reasonable doubt that the threshold five
kilogram cocaine quantities were both uncontested by Pizarro and
supported by overwhelming evidence, Neder mandates our conclusion
here that the errors under Alleyne v. United States, 133 S. Ct.
2151 (2013), were harmless.
Neder, however, did not unequivocally answer whether its
two-part formulation for finding an omitted element harmless in
Neder's case -- that the element was both uncontested and supported
by overwhelming evidence -- was merely descriptive of the
circumstances in Neder itself or also prescriptive for any finding
of harmlessness where an element was omitted. In Neder, the jury
instructions for the charge of filing a false income tax return did
not include the element of materiality. Neder, 527 U.S. at 6. The
evidence showed that Neder failed to report over five million
dollars in income on his tax returns. Id. at 16. The Court
same absent the error even where the defendant contested the
omitted element. Under my reading of Supreme Court precedent,
however, a court could only reach such a conclusion about the
jury's verdict if it determined that the evidence on the omitted
element was overwhelming and that the element was uncontested.
Importantly, and also contrary to my colleague's
representations, my view does not derive "almost entirely from a
single quote from Neder." It is based on both a careful analysis
of the Neder decision and on longstanding principles developed in
the Court's precedent on directed guilty verdicts.
-40-
described two available standards for materiality24 and concluded
that "[u]nder either of these formulations, no jury could
reasonably conclude that Neder's failure to report substantial
amounts of income on his tax returns was not 'a material matter.'"
Id. The Court then explained:
The failure to report such substantial income
incontrovertibly establishes that Neder's false
statements were material to a determination of his income
tax liability. The evidence supporting materiality was
so overwhelming, in fact, that Neder did not argue to the
jury -- and does not argue here -- that his false
statements of income could be found immaterial.
Id. at 16-17.
The Court ultimately declared its holding using the
formulation quoted above, concluding that "[i]n this situation,
where a reviewing court concludes beyond a reasonable doubt that
the omitted element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same
absent the error, the erroneous instruction is properly found to be
harmless." Id. at 17. Notwithstanding the conjunctive "and"
linking "uncontested" and "supported by overwhelming evidence,"25
24
Under one formulation, "a false statement is material if it
has a natural tendency to influence, or [is] capable of
influencing, the decision of the decisionmaking body to which it
was addressed." Neder, 527 U.S. at 16 (alteration in original)
(internal quotation marks omitted). Under the other definition,
"any failure to report income is material." Id. (internal
quotation marks omitted).
25
My concurring colleague asserts that I have unduly relied
on the conjunctive "and" as used by the Supreme Court in this
passage from Neder while ignoring the arguably inconsistent
parallel use of that word later in the opinion. While the
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courts have taken inconsistent positions on whether a defendant's
contest of an omitted element, even one supported by overwhelming
evidence, renders the omission non-harmless. In addition,
Neder left unresolved the related question of what a defendant is
required to do to "contest" the omitted element under Neder. In my
view, Neder, especially when analyzed against the backdrop of the
Supreme Court's cases regarding directed guilty verdicts, requires
that an omitted element be uncontested in order to be found
harmless. However, this circuit has not uniformly approached the
question, and there is significant inconsistency among the circuits
and state courts.
A. The Debate over "Uncontested"
1. Inconsistency in this Circuit
In certain cases, our harmlessness inquiry has examined
both whether the omitted element was uncontested and whether it was
supported by overwhelming evidence. See, e.g., United States v.
Harakaly, 734 F.3d 88, 95-96 (1st Cir. 2013) (finding omission
harmless where overwhelming evidence supported omitted element of
conjunctive formulation I describe here is important to my
analysis, my view of the harmless error analysis in Neder is based
on the entire opinion construed against the backdrop of the Supreme
Court's precedent on directed guilty verdicts.
Moreover, in contrast to the Court's statement of its holding
as quoted here, the later use of "and" highlighted by my colleague
is explicitly offered as an "example." See Neder, 527 U.S. at 19.
Nonetheless, I have acknowledged that Neder's language is
susceptible to my colleague's reading despite my view that, in
light of Supreme Court precedent, that reading cannot be correct.
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threshold drug quantity and defendant, instead of contesting that
threshold quantity, "acknowledged responsibility for a quantity of
drugs that far exceeds the triggering amount"); United States v.
Zhen Zhou Wu, 711 F.3d 1, 20 (1st Cir. 2013) ("But here, the
defendants did contest the prosecution's claim[,] . . . thus making
this case different from Neder."); United States v. Nelson-
Rodriguez, 319 F.3d 12, 48-51 (1st Cir. 2003) (finding preserved
Apprendi errors harmless after concluding that defendants did not
contest omitted element and that overwhelming evidence supported
element); United States v. Bailey, 270 F.3d 83, 89 (1st Cir. 2001)
("The error cannot be harmless where, as here, the defendant has
contested the omitted element and the evidence is sufficient to
support a contrary finding.").
Our cases that have performed this dual inquiry, however,
have not made clear whether a defendant's contest of an omitted
element precludes a finding of harmlessness, or whether such a
contest is merely relevant to the harmlessness inquiry, but not
determinative of it. In United States v. Prigmore, 243 F.3d 1 (1st
Cir. 2001), we indeed contemplated that a defendant's contest of an
omitted element might itself preclude a finding of harmlessness.
See id. at 22 ("Unlike Neder, the government's evidence . . . was
contested by the defendants; as we have stated, defendants
introduced testimonial evidence [to the contrary] . . . . Given
Neder's repeated emphasis on the 'uncontested' nature of the
-43-
evidence of materiality in that case, the contested nature of the
. . . evidence in this case might well suffice to distinguish it
from Neder in and of itself." (citation omitted)). However, we did
not need to decide the question because the contested element was
not supported by overwhelming evidence. Id.Conversely, other cases in this circuit seem to have
equated harmlessness solely with overwhelming evidence. See, e.g.,
United States v. Soto-Beníquez, 356 F.3d 1, 48 (1st Cir. 2004) ("In
determining whether an Apprendi error is harmless, the
determinative question is whether the evidence overwhelmingly
establishes the amount of drugs distributed by the conspiracy as a
whole."); United States v. Pérez-Ruiz, 353 F.3d 1, 18 (1st Cir.
2003) (citing Nelson-Rodriguez, 319 F.3d at 45-49, and Bailey, 270
F.3d at 89 -- cases that had themselves considered whether the
omitted element was uncontested -- for the principle that "[i]n
drug-trafficking cases involving Apprendi errors, we sometimes have
treated the presence of 'overwhelming evidence' of the requisite
drug types and quantities as a proxy for harmlessness").
Still other cases appear to have taken an ambivalent
stance, focusing the analysis primarily on whether overwhelming
evidence supported the omitted element, but also considering
whether the element was uncontested. See, e.g., United States v.
Martinez-Medina, 279 F.3d 105, 121-22 (1st Cir. 2002) (explaining
that "[n]either appellant seriously denies that the conspiracy
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involved at least five kilograms of cocaine" but also that "it is
settled that an Apprendi error can be harmless where the evidence
overwhelmingly establishes the minimum drug quantity needed to
justify a higher statutory maximum").
2. Inconsistency Among Other Circuits
This circuit's internal inconsistency mirrors the inter-
circuit conflict on the interpretation of Neder. I cite cases from
the Ninth, Eleventh, Second, and Fourth Circuits as examples.
Earlier this year, the Ninth Circuit, applying the
Neder standard, held that an Apprendi error was not harmless beyond
a reasonable doubt because the defendant had contested the omitted
element. See United States v. Guerrero-Jasso, 752 F.3d 1186, 1193-
95 (9th Cir. 2014). Despite finding the evidence supporting the
omitted element to be "somewhat similar" to evidence the court had
found to be "overwhelming" in a prior case, the Ninth Circuit held
that Guerrero-Jasso's contest of the omitted element precluded a
finding of harmlessness beyond a reasonable doubt. Id. at 1194.
Further, although Neder stated that a court could not find harmless
error "'for example, where the defendant contested the omitted
element and raised evidence sufficient to support a contrary
finding,'" the Ninth Circuit held that Guerrero-Jasso was not
required affirmatively to raise evidence sufficient to support a
contrary finding because "[t]he example provided in Neder [was] not
the only way a constitutional error can be ruled not harmless; it
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[was] one way." Guerrero-Jasso, 752 F.3d at 1195 (quoting Neder,
527 U.S. at 19).
By contrast, the Eleventh Circuit on remand in Neder
interpreted the Supreme Court's decision as "not hold[ing] that
omission of an element can never be harmless unless uncontested."
United States v. Neder, 197 F.3d 1122, 1129 (11th Cir. 1999).
Rather, the Eleventh Circuit construed the Supreme Court's
statements regarding "uncontested" as "mean[ing] only that the fact
materiality was not contested support[ed] the conclusion that the
jury's verdict would have been the same absent the error." Id. at
1129 n.6. Hence, the court concluded "whether Neder contested
materiality may be considered but is not the pivotal concern."
Id. at 1129.
The Second Circuit has taken a different position,
holding that under Neder contesting an omitted element does not by
itself render the omission non-harmless but requires a multi-step
analysis. In the Second Circuit, "'if the evidence supporting the
omitted element was controverted, harmless error analysis requires
the appellate court to conduct a two-part inquiry, searching the
record in order to determine (a) whether there was sufficient
evidence to permit a jury to find in favor of the defendant on the
omitted element, and, if there was, (b) whether the jury would
nonetheless have returned the same verdict of guilty.'" United
States v. Needham, 604 F.3d 673, 679 (2d Cir. 2010) (quoting United
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States v. Jackson, 196 F.3d 383, 386 (2d Cir. 1999)).26
The Fourth Circuit has in turn expressly rejected the
Second Circuit's approach in favor of yet another. In the Fourth
Circuit, "if the defendant contested the omitted element,
Neder mandates a second inquiry. In that event, we must determine
whether the 'record contains evidence that could rationally lead to
a contrary finding with respect to that omitted element.'" United
States v. Brown, 202 F.3d 691, 701 (4th Cir. 2000) (quoting Neder,
527 U.S. at 19).
26
The Second Circuit has been internally inconsistent in its
own stance on Neder, expressing, after Jackson, a belief that there
is "some tension between the harmless-error analysis in Neder and
our articulation of it in Jackson":
. . . Neder appears to say that, once the court decides
that the defendant offered evidence sufficient to support
a finding in his or her favor on the omitted element, the
court's error in omitting that element from the jury
instruction cannot be deemed harmless, unless, for
example, other conclusions by the same jury are the
functional equivalent of a finding of the omitted
element. Jackson, on the other hand, seems to allow the
court to decide on its own whether the jury would have
convicted the defendant, even where the evidence can
support a finding in the defendant's favor on an omitted
element and no functional equivalent of the omitted
element has been found by the jury.
Monsanto v. United States, 348 F.3d 345, 350-51 (2d Cir. 2003).
Nevertheless, the Second Circuit has recognized it is "bound by
Jackson, . . . unless and until that case is reconsidered by our
court sitting in banc (or its equivalent) or is rejected by a later
Supreme Court decision." Id. at 351.
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3. Criticism in the State Courts
Several state supreme courts have held that their state
constitutions provide a broader jury trial guarantee than Neder
recognized in the federal Constitution. See, e.g., Harrell v.
State, 134 So.3d 266, 270-75 (Miss. 2014) (holding under the
Mississippi Constitution "that it is always and in every case
reversible error for the courts of Mississippi to deny an accused
the right to have a jury decide guilt as to each and every
element"); State v. Kousounadis, 986 A.2d 603, 616 (N.H. 2009)
("Neder, however, has been widely criticized, and we decline to
follow it with regard to our interpretation of the New Hampshire
Constitution.").
In addition, at least one state court has suggested that
Neder's application of harmless error analysis to cases where the
jury did not make a finding of guilt beyond a reasonable doubt on
all elements will be "short-lived" given the Supreme Court's Sixth
Amendment jurisprudence, starting with Apprendi v. New Jersey, 530
U.S. 466 (2000), emphasizing the need for jury findings. See
Freeze v. State, 827 N.E.2d 600, 605 (Ind. Ct. App. 2005) ("We
believe the validity of Neder might be short-lived, in light of the
seismic shift in the Supreme Court's Sixth Amendment jurisprudence
since 1999.").
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B. My View of "Uncontested"
1. The Unconstitutional Directed Guilty Verdict
The Supreme Court has long recognized that "trial by jury
in criminal cases is fundamental to the American scheme of
justice." Duncan v. Louisiana, 391 U.S. 145, 149 (1968). The
"intended purpose" of a jury trial in a criminal case is to "mak[e]
judicial or prosecutorial unfairness less likely": "[p]roviding an
accused with the right to be tried by a jury of his peers gave him
an inestimable safeguard against the corrupt or overzealous
prosecutor and against the compliant, biased, or eccentric judge."
Id. at 158, 156. See also United States v. Martin Linen Supply
Co., 430 U.S. 564, 572 (1977) ("[Jurors'] overriding responsibility
is to stand between the accused and a potentially arbitrary or
abusive Government that is in command of the criminal sanction.").
It is a defendant's right to "prefer[] the common-sense judgment of
a jury to the more tutored but perhaps less sympathetic reaction of
the single judge." Duncan, 391 U.S. at 156. The jury system also
serves as "a fundamental reservation of power in our constitutional
structure" for the people to exercise "control in the judiciary."
Blakely v. Washington, 542 U.S. 296, 306 (2004). Hence, "a trial
judge is prohibited from entering a judgment of conviction or
directing the jury to come forward with such a verdict, regardless
of how overwhelmingly the evidence may point in that direction."
Martin Linen Supply Co., 430 U.S. at 572-73 (citations omitted).
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Against this background, the Supreme Court considered in
Connecticut v. Johnson, 460 U.S. 73 (1983), whether harmless error
review was appropriate for a jury instruction that
unconstitutionally shifted the burden of proof on intent.27 The
Court divided equally on the question.28 The plurality, consisting
of four justices, asserted that the instruction on presumed intent
was "the functional equivalent of a directed verdict" on intent
and, therefore, could not be harmless unless the defendant had
conceded intent. Id. at 84, 87 (plurality opinion).29
The Johnson dissent, also consisting of four justices,
agreed with the plurality that an instruction that "permits a jury
to convict a defendant without ever examining the evidence
concerning an element of the crimes charged" would have "the effect
27
In Sandstrom v. Montana, 442 U.S. 510 (1979), the Supreme
Court had held that such an instruction violated due process. Id.
at 524. Sandstrom, however, expressly left open the question of
whether such an improper presumption instruction could ever be
harmless. Id. at 526-27.
28
Justice Stevens did not join the plurality's opinion but
concurred in the judgment and thereby provided the fifth vote for
a disposition. Justice Stevens did not confront whether harmless
error review was appropriate for the presumption instruction
because in his view "[n]o federal question arises when a state
court has decided for itself that it will decline to apply the
Chapman harmless error test at all." Johnson, 460 U.S. at 89 n.4
(Stevens, J., concurring).
29
The plurality explained that "a defense such as alibi,
insanity, or self-defense" could, depending on the case, amount to
such a concession. Johnson, 460 U.S. at 87 (plurality opinion).
However, the plurality also recognized that "a defendant in a
criminal trial is justified, of course, in defending solely in
reliance on the presumption of his innocence and the State's burden
of proof." Id. at 87 n.16.
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of a directed verdict." Id. at 96 (Powell, J., dissenting)
(internal quotation marks omitted). The dissent likewise agreed
that such an "instructional error[] that prevent[s] a jury from
considering an issue," id. at 95 n.3, would preclude harmless error
review. See id. at 97. Justice Powell's dissent disagreed only
with the plurality's classification of the presumption instruction
as the equivalent of a directed verdict. Id. at 95-97. The
dissent viewed the presumption instruction as "distinguishable from
other instructional errors that prevent a jury from considering an
issue." Id. at 95 n.3. It therefore concluded that "[b]ecause the
presumption does not remove the issue of intent from the jury's
consideration, it does not preclude a reviewing court from
determining whether the error was harmless beyond a reasonable
doubt." Id. at 97 (internal quotation marks omitted).
In Rose v. Clark, 478 U.S. 570 (1986), the Supreme Court
ultimately sided with the position of the Johnson dissent that
harmless error review was appropriate for an improper presumption
instruction on intent. The Court justified its conclusion by
explaining that "[w]hen a jury is instructed to presume malice from
predicate facts, it still must find the existence of those facts
beyond a reasonable doubt." Rose, 478 U.S. at 580. Hence, the
Court reasoned that "'[b]ecause a presumption does not remove the
issue of intent from the jury's consideration, it is
distinguishable from other instructional errors that prevent a jury
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from considering an issue,'" a situation that, according to the
Court, would amount to "a directed verdict for the State." Id. at
580 & n.8 (quoting Johnson, 460 U.S. at 95 n.3 (Powell, J.,
dissenting)). Rose observed, consistent with both the
Johnson plurality and dissent, that harmless error review
"presumably would not apply" in such a case:
[H]armless-error analysis presumably would not apply if
a court directed a verdict for the prosecution in a
criminal trial by jury. We have stated that "a trial
judge is prohibited from entering a judgment of
conviction or directing the jury to come forward with
such a verdict . . . regardless of how overwhelmingly the
evidence may point in that direction." This rule stems
from the Sixth Amendment's clear command to afford jury
trials in serious criminal cases. Where that right is
altogether denied, the State cannot contend that the
deprivation was harmless because the evidence established
the defendant's guilt; the error in such a case is that
the wrong entity judged the defendant guilty.
Id. at 578 (citations omitted) (quoting Martin Linen Supply Co.,
430 U.S. at 572-73).30
30
Having held that the presumption instruction did not direct
a verdict, Rose disagreed with the position that such an improper
presumption instruction "could never be harmless where a defendant
contests intent." Rose, 478 U.S. at 583. The Court thereby
rejected the Johnson plurality's view that a presumption
instruction "'is the functional equivalent of a directed verdict'
on intent, and is therefore harmless only when the defendant
concedes intent." Rose, 478 U.S. at 572 n.1 (quoting Johnson, 460
U.S. at 84 (plurality opinion)). The Court instead adopted the
Johnson dissent's view that "in cases of [an improper presumption
instruction], 'the inquiry is whether the evidence was so
dispositive of intent that a reviewing court can say beyond a
reasonable doubt that the jury would have found it unnecessary to
rely on the presumption.'" Rose, 478 U.S. at 583 (quoting Johnson,
460 U.S. at 97 n.5 (Powell, J., dissenting)).
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2. The "Narrow Class of Cases" Where an Omitted Element
is "Uncontested"
Having decided Rose by distinguishing the improper
presumption instruction in that case from an "instructional error[]
that prevents a jury from considering an issue," i.e., one that
directs a verdict, for which "harmless-error analysis presumably
would not apply," the Court was presented in Neder with such a
directed verdict. In Neder, the trial court had "explicitly
directed the jury not to consider" the element of materiality.
Neder, 527 U.S. at 16 n.1. Thus, unlike in Rose, it would be
"incorrect to say that the jury made such a finding." Id.For this reason, Justice Scalia's dissent in Neder,
joined by Justices Souter and Ginsburg, asserted that holding the
omission of the materiality element harmless was tantamount to
allowing a directed verdict of guilty, which, under Rose, "would
be per se reversible no matter how overwhelming the unfavorable
evidence." Neder, 527 U.S. at 34 (Scalia, J., dissenting) (citing
Rose, 478 U.S. at 578). The Neder majority responded by
reaffirming the Rose rule against allowing directed verdicts of
guilty "regardless of how overwhelmingly the evidence may point in
that direction," Rose, 478 U.S. at 578 (internal quotation marks
omitted). See Neder, 527 U.S. at 17 n.2. At the same time, Neder
prescribed harmless-error review for "the narrow class of cases"
where there was "a failure to charge on an uncontested element of
the offense." Neder, 527 U.S. at 17 n.2 (emphases added).
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Hence, the Court evidently used the requirement that the
omitted element be "uncontested" to justify departing from its
repeated statements that harmless error review would be unavailable
where a court had directed a jury verdict of guilty in a criminal
case. The Court emphasized that it was not taking an "'in for a
penny, in for a pound' approach" -- i.e., by permitting harmless
error review where the omitted element was uncontested, the Court
was carving out an extremely limited exception to its bar against
reviewing directed guilty verdicts for harmlessness. See id.In addition, having justified harmless error review for
the flawed presumption instruction in Rose by distinguishing that
error from the omission of an element, the Court demonstrated its
intention to treat the two types of error differently. In Neder,
where the Court confronted the outright omission of an element, the
majority adopted the "uncontested and . . . overwhelming evidence"
formulation for analyzing whether "the jury verdict would have been
the same absent the error," i.e., whether the error was harmless.
Neder, 527 U.S. at 17 (emphasis added). Indeed, the rule against
allowing directed verdicts, explicitly reaffirmed in Neder, 527
U.S. at 17 n.2, implicitly prohibits a reviewing court from finding
harmlessness on the basis of overwhelming evidence alone.
In sum, given this precedential landscape, I am convinced
that the Court deliberately chose to make the harmlessness inquiry
more demanding where an element was omitted. Hence, I think the
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Court in Neder intentionally prescribed the two-pronged inquiry
requiring consideration of whether the omitted element was
uncontested and whether the record contained overwhelming evidence
of that element, and only when both prongs are met can a reviewing
court conclude beyond a reasonable doubt that the jury verdict
would have been the same absent the error. Indeed, the Court
emphasized the importance of "uncontested" to that inquiry: it
listed "uncontested" as the first of the two necessary factors, see
id. at 17, and it examined and re-examined whether Neder had
contested the omitted element of materiality, see id. at 15, 16-17,
17 n.2, 19.
Thus, even where a reviewing court concludes beyond a
reasonable doubt that an omitted element is supported by
overwhelming evidence, I believe that the omission of that element
is not harmless unless the court also concludes beyond a reasonable
doubt that the element was "uncontested."
3. The Meaning of "Uncontested"
In addressing the "uncontested" requirement in Neder, the
Supreme Court noted that the defendant had made no attempt at trial
or on appeal to argue the issue of materiality, id. at 19, and that
he did "not suggest that he would introduce any evidence bearing
upon the issue of materiality if so allowed," id. at 15. It
further observed that Neder "apparently could not[] bring forth
facts contesting the omitted element." Id. at 19.
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The Court thus remarked on the defendant's failure to
argue the materiality issue at any point in the proceedings. Given
those circumstances, Neder did not explicitly elaborate on what
would have been sufficient to "contest" the omitted element.
Indeed, Neder did not definitively answer whether an element would
be deemed "contested" if a defendant waited until appeal to argue
for the first time that a contrary finding on the element was
possible.
Moreover, as discussed above, the plurality in
Johnson had taken the position that a directed verdict on an issue
"may be harmless if the defendant conceded the issue." See
Johnson, 460 U.S. at 87 (plurality opinion). On the one hand, the
Court's articulation of Neder's trial strategy could possibly be
construed as such a concession of the omitted element.31 However,
the Court used the word "uncontested," not "conceded," and the
Court focused on the fact that Neder "did not argue to the jury --
and does not argue here -- that his false statements of income
could be found immaterial." Neder, 527 U.S. at 16 (emphases
added). Hence, in the opinion in this case, we have construed
31
The Court represented that Neder "defended against the tax
charges by arguing that the loan proceeds were not income because
he intended to repay the loans, and that he reasonably believed,
based on the advice of his accountant and lawyer, that he need not
report the proceeds as income." Id. at 16-17. In other words,
Neder's defense conceded that he received the considerable amount
of funds charged, and "no jury could reasonably find that Neder's
failure to report substantial amounts of income on his tax returns
was not 'a material matter.'" Id. at 16.
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"uncontested" to mean that the defendant did not argue that a
contrary finding on the omitted element was possible. We thus
found the omitted drug quantity elements "uncontested" due to
Pizarro's lack of affirmative argument on the issue.
4. "Uncontested" in the Context of Instructional Alleyne
Errors
Given Pizarro's lack of argument on appeal, we were able
to resolve this case without considering whether an argument made
for the first time on appeal "contests" an omitted element.
However, I believe that an instructional Alleyne error that
occurred before Alleyne was decided cannot be deemed "uncontested,"
and thus susceptible to a finding of harmless error, based solely
on a defendant's failure to address the omitted element at trial.
Until the Supreme Court held in Alleyne that facts
triggering a mandatory minimum sentence must be found by a jury
beyond a reasonable doubt, Pizarro had no obligation or incentive
to discuss evidence of drug quantity.32 Therefore, if Pizarro had
contested the drug quantity elements on appeal, I would have found
no need to examine whether he had also challenged the elements at
trial. In my view, he could not have been faulted for failing to
contest an issue at trial that was not, in fact, in play at that
time. Cf. Descamps v. United States, 133 S. Ct. 2276, 2289 (2013)
32
Indeed, because the trial in this case pre-dated Apprendi,
drug quantity was not an issue for the jury at all.
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("A defendant, after all, often has little incentive to contest
facts that are not elements of the charged offense -- and may have
good reason not to. At trial, extraneous facts may confuse the
jury. (Indeed, the court may prohibit them for that reason.)").
At least where, as here, the defendant had no reason to think that
drug quantity mattered with respect to conviction, I conclude that
he could not be faulted for failing to contest the issue at trial.
Where a defendant's trial occurred pre-Alleyne, his obligation to
contest the element of drug quantity can only arise when he first
confronts the government's assertion of harmless error.
I recognize that this conclusion means that, in cases
involving pre-Alleyne trials on direct appeal, a defendant would
almost always be able to contest drug quantity and avoid a finding
of harmless error. On appeal, or in resentencing proceedings
before the district court -- if that is where the government first
asserts harmless error -- the defendant would only have to make an
argument that could, as a theoretical matter under the law, negate
the omitted element. A challenge to the credibility of witnesses
might suffice.
Yet I do not find problematic the ease of such a showing.
First, "the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged."
In re Winship, 397 U.S. 358, 364 (1970). The burden is on the
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government to show that the constitutional error was harmless
beyond a reasonable doubt. See Premo v. Moore, 131 S. Ct. 733, 744
(2011) (citing Neder, 527 U.S. at 18). This is a significant
burden: "It is critical that the moral force of the criminal law
not be diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned." In re Winship, 397 U.S.
at 364; see id. ("It is also important in our free society that
every individual going about his ordinary affairs have confidence
that his government cannot adjudge him guilty of a criminal offense
without convincing a proper factfinder of his guilt with utmost
certainty.").
Second, in Neder, the Supreme Court remarked that
upholding verdicts flawed solely by the absence of a jury finding
on an uncontested element that is supported by overwhelming
evidence "'serve[s] a very useful purpose insofar as [it] block[s]
setting aside convictions for small errors or defects that have
little, if any, likelihood of having changed the result of the
trial.'" Neder, 527 U.S. at 19 (quoting Chapman, 386 U.S. at 22(alterations in original)). That concern, to the extent it
influenced the majority's decision in Neder, is not present in the
Alleyne instructional error context because the non-harmless
omission of a jury finding on the drug quantity elements for the
conspiracy and possession counts would not negate a finding of
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guilt.33 In cases such as Pizarro's, it would merely change the
defendant's sentencing exposure, reducing the maximum sentence to
a still substantial twenty years of imprisonment for conviction on
a lesser-included offense.34
II.
Despite the compelling reasons for concluding that an
omitted element cannot be harmless under Neder unless the reviewing
court concludes beyond a reasonable doubt that the element was both
uncontested and supported by overwhelming evidence, there is
troubling inconsistency in the courts. The importance of the issue
is self-evident. At stake is a criminal defendant's constitutional
right to trial by jury. I therefore urge the Supreme Court (1) to
clarify that Neder requires a reviewing court to conclude beyond a
reasonable doubt that an omitted element is uncontested before the
33
I make no judgment here, either explicitly or implicitly,
on whether a concern for judicial efficiency related to avoiding a
retrial could justify a different standard for contesting an
omitted element where a finding of non-harmlessness would
necessarily result in a retrial.
34
Under 28 U.S.C. § 2106, in the case of a non-harmless
instructional Alleyne or Apprendi error, a circuit generally may
direct the entry of conviction on the lesser-included offense that
does not require the omitted element, so long as no "injustice or
unfair prejudice will inure to the defendant." See United
States v. Sepúlveda-Hernández, 752 F.3d 22, 28-29 (1st Cir. 2014)
(providing multi-step test for determining whether it would be
permissible to direct entry of conviction on lesser-included
offense). Cocaine conspiracy and possession offenses under 21
U.S.C. § 841(b)(1)(C), without specified drug quantities or
mandatory minima, are lesser-included offenses of the aggravated
crimes under § 841(b)(1)(A). See Burrage v. United States, 134 S.
Ct. 881, 887 n.3 (2014).
-60-
omission can be found harmless and (2) to explain what a defendant
must do and when he or she must do it in order to contest the
omitted element to preclude a finding of harmlessness.
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TORRUELLA, Circuit Judge (Concurring). I write separately
in response to the preceding concurrence and its inventive gloss on
Neder v. United States, 527 U.S. 1 (1999), and its progeny. Neder
simply applied the standard constitutional harmless-error rule
articulated nearly fifty years ago in Chapman v. California, 386
U.S. 18 (1967), to a jury instruction that omitted an element of an
offense. See Neder, 527 U.S. at 4 (holding that "the harmless-error
rule of Chapman v. California" applies to the failure of a trial
judge to submit an element of the offense to the jury). Contrary
to the position taken by Judge Lipez, Neder did not supplant the
Chapman rule by creating a novel, two-pronged test for such errors.
I write separately lest the other concurrence add to the confusion
of which it complains.
The other concurrence posits that there is a "troubling
inconsistency" in the application of the constitutional harmless-
error test in the wake of Neder. Ante, at 60 (Lipez, J.,
concurring). It argues that there are two possible interpretations
of Neder. The first interpretation -- with which I agree, and
which is overwhelmingly supported by Supreme Court and First
Circuit precedent -- is that Neder simply applied the standard
Chapman harmless-error test: "whether it appears 'beyond a
reasonable doubt that the error complained of did not contribute to
the verdict obtained.'" Neder, 527 U.S. at 15 (quoting Chapman,
386 U.S. at 24). The second potential interpretation is that the
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Neder Court created a new, two-pronged harmless-error test for a
subset of instructional constitutional errors: "an omitted element
cannot be harmless under Neder unless the reviewing court concludes
beyond a reasonable doubt that the element was both uncontested and
supported by overwhelming evidence." Ante, at 60. Judge Lipez
advocates for the latter reading, and he urges the Supreme Court to
clarify whether his interpretation is correct.
In my view, no such clarification is needed, as the
governing precedent is abundantly clear that Neder simply applied
the standard Chapman harmless-error test. Neder, according to its
plain text -- and as reinforced by subsequent Supreme Court and
First Circuit decisions -- neither added additional elements (i.e.,
"uncontested" and "overwhelming evidence") to the standard Chapman
test nor supplanted it with a new harmless-error test for some
subset of cases.
While Judge Lipez's view of Neder is not strictly
impossible, such an interpretation is exceedingly strained and
finds scant support in Neder itself, not to mention the numerous
cases citing Neder over the past fifteen years. To the extent that
there is inconsistency in the wake of Neder, his concurrence adds
to the confusion by presenting the issue as a much closer question
than it is. Under a more straightforward, faithful, and
commonsense reading of Neder and our subsequent cases, there is
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very little -- if any -- inconsistency in our prior application of
the constitutional harmless-error test for instructional errors.
I express no view here on whether Neder was rightly
decided, or whether, as Judge Lipez suggests, the Supreme Court
should reconsider its decision. Rather, I write only to attempt to
accurately reflect the current state of the constitutional
harmless-error test in the First Circuit, following the relevant
Supreme Court precedent. For constitutional errors like those in
Neder and the instant case ("the failure to instruct on an element
in violation of the right to a jury trial"), "the harmless-error
inquiry [remains] essentially the same: Is it clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error?" Neder, 527 U.S. at 18; see
also id. at 19 ("A reviewing court making this harmless-error
inquiry . . . asks whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted
element.").
I. The Supreme Court's Constitutional Harmless-Error Test
According to the harmless-error rule under the Federal
Rules of Criminal Procedure, "[a]ny error, defect, irregularity, or
variance that does not affect substantial rights must be
disregarded." Fed. R. Crim. P. 52(a). In Chapman v. California,
the Supreme Court articulated the standard harmless-error test for
constitutional errors. Chapman, 386 U.S. at 24. To determine
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whether a constitutional error is harmless, a reviewing court asks
whether it appears "beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained." Id.Nearly two decades later, in Delaware v. Van Arsdall, 475
U.S. 673 (1986), the Supreme Court reaffirmed the Chapman harmless-
error rule. Id. at 681 ("Since Chapman, we have repeatedly
reaffirmed the principle that an otherwise valid conviction should
not be set aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond a
reasonable doubt."). The Court explained that "[t]he
harmless-error doctrine recognizes the principle that the central
purpose of a criminal trial is to decide the factual question of
the defendant's guilt or innocence, and promotes public respect for
the criminal process by focusing on the underlying fairness of the
trial rather than on the virtually inevitable presence of
immaterial error." Id. (internal citation omitted). "As we have
stressed on more than one occasion, the Constitution entitles a
criminal defendant to a fair trial, not a perfect one." Id.Shortly after Van Arsdall was decided, in Rose v. Clark,
478 U.S. 570 (1986), the Supreme Court cautioned that a
"harmless-error analysis presumably would not apply if a court
directed a verdict for the prosecution in a criminal trial by
jury," reasoning that "'a trial judge is prohibited from entering
a judgment of conviction or directing the jury to come forward with
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such a verdict . . . regardless of how overwhelmingly the evidence
may point in that direction.'" Id. at 578 (quoting United States
v. Martin Linen Supply Co., 430 U.S. 564, 572–573 (1977)). The
Court explained that when the Sixth Amendment right to a jury trial
in serious criminal cases "is altogether denied, the State cannot
contend that the deprivation was harmless because the evidence
established the defendant's guilt; the error in such a case is that
the wrong entity judged the defendant guilty." Id.The Rose Court further "emphasized, however, that while
there are some errors to which Chapman does not apply, they are the
exception and not the rule." Id. Therefore, "if the defendant had
counsel and was tried by an impartial adjudicator, there is a
strong presumption that any other errors that may have occurred are
subject to harmless-error analysis." Id. at 579. The Court
explained that the "thrust" of constitutional rules for criminal
trials "is to ensure that those trials lead to fair and correct
judgments." Id. "Where a reviewing court can find that the record
developed at trial establishes guilt beyond a reasonable doubt, the
interest in fairness has been satisfied and the judgment should be
affirmed." Id. The Court reiterated that it has "repeatedly
stated" that a criminal defendant is entitled "'to a fair trial,
not a perfect one.'" Id. (quoting Van Arsdall, 475 U.S. at 681).
To date, the Supreme Court has not overruled Chapman or
changed the harmless-error test for constitutional errors. Rather,
-66-
the Supreme Court has repeatedly reaffirmed the standard
constitutional harmless-error test as articulated in Chapman. See,
e.g., Premo v. Moore, 131 S. Ct. 733, 744 (2011); Rivera v.
Illinois, 556 U.S. 148, 155-56 (2009) (affirming a finding of
harmless error when "it was clear beyond a reasonable doubt that a
rational jury would have found [the defendant] guilty absent the
error") (internal quotation marks and citations omitted)); Mitchell
v. Esparza, 540 U.S. 12, 17-18 (2003).
II. The Supreme Court's Opinion in Neder
Ignoring the more recent Supreme Court cases cited above,
and the plethora of First Circuit cases holding otherwise, the
other concurrence relies almost entirely on a single quote from
Neder to justify its position that Neder created a new test to
supplant the Chapman harmless-error test in certain circumstances.
See Neder, 527 U.S. at 17 (stating that a "jury verdict would have
been the same absent" a failure to instruct on an element, "where
a reviewing court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by overwhelming
evidence"). Viewed out of context, it is possible that this quote
could support Judge Lipez's preferred interpretation. In its
proper context, however, as further explained below, it is
perfectly clear that this quote "was merely descriptive of the
circumstances in Neder itself" and was not "prescriptive for any
finding of harmlessness where an element was omitted." See ante,
-67-
at 40. Nothing in Neder (or any subsequent Supreme Court case)
suggests that this two-pronged test is necessary for a finding of
harmlessness rather than merely sufficient for such a finding.
Similarly, nowhere does Neder purport to establish a new
constitutional harmless-error test to displace the standard Chapman
test in certain circumstances.
The defendant in Neder had been tried for several
violations of federal criminal fraud statutes. Neder, 527 U.S. at
4. It was established that the district court erred in refusing to
submit the materiality element of the tax fraud charges to the
jury. See id. The Supreme Court granted certiorari to answer two
questions: (1) whether materiality was an element of the relevant
fraud statutes, and (2) "whether, and under what circumstances, the
omission of an element from the judge's charge to the jury can be
harmless error." Id. at 7. The Court answered the first question
in the affirmative, holding that materiality was an element of the
relevant charges. Id. at 4.
With respect to the second question, the Court held "that
the harmless-error rule of Chapman v. California" indeed applied to
the district court's error in omitting an element of the offense
from the jury charges. Id. at 4. The Court proceeded to examine
in detail this type of constitutional instructional error, where
the trial court itself makes a finding on an element of the offense
rather than submitting that element for a jury determination. In
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so doing, the Neder court explicitly considered the argument that
such an error is "'structural,' and thus subject to automatic
reversal." Id. at 8 (quoting Johnson v. United States, 520 U.S.
461, 468 (1997)); see also id. at 7 (stating that structural errors
"defy analysis by 'harmless error' standards" (quoting Arizona v.
Fulminante, 499 U.S. 279, 309, (1991)); id. (observing that
structural errors "are so intrinsically harmful as to require
automatic reversal (i.e., 'affect substantial rights') without
regard to their effect on the outcome" (quoting Fed. R. Crim. P.
52(a))).
However, the Court rejected this structural-error
argument, observing that structural errors constitute only "a
limited class of fundamental constitutional errors." Id. The
Court had previously "found an error to be 'structural' . . . only
in a 'very limited class of cases," including: the complete denial
of counsel, a biased trial judge, racial discrimination in the
selection of the grand jury, the denial of self-representation at
trial, the denial of a public trial, and a defective reasonable-
doubt instruction. Id. at 8 (quoting Johnson, 520 U.S. at 468).
It explained that those structural-error cases contain defects that
"affect[] the framework within which the trial proceeds, rather
than simply an error in the trial process itself." Id. (quoting
Fulminante, 499 U.S. at 310). To be deemed structural errors, such
defects must "infect the entire trial process, and necessarily
-69-
render a trial fundamentally unfair." Id. (internal quotation
marks and citations omitted).
"The error at issue [in Neder] -- a jury instruction that
omits an element of the offense -- differs markedly from the
[structural] constitutional violations . . . found to defy
harmless-error review." Id. The Court clarified that "[u]nlike
such defects as the complete deprivation of counsel or trial before
a biased judge, an instruction that omits an element of the offense
does not necessarily render a criminal trial fundamentally unfair
or an unreliable vehicle for determining guilt or innocence." Id.
at 9. Similarly, the Neder Court reasoned that omitting an element
of the offense from the jury instructions will not "always render
a trial unfair." Id. To the contrary, despite the Neder trial
judge's failure to charge the jury on the materiality element,
Neder's trial was not "fundamentally unfair" because he "was tried
before an impartial judge, under the correct standard of proof and
with the assistance of counsel; [and] a fairly selected, impartial
jury was instructed to consider all of the evidence and argument in
respect to Neder's defense against the tax charges." Id.
For those reasons, the Neder Court "concluded that the
omission of an element is an error that is subject to
harmless-error analysis." Id. at 15. Conducting this analysis, in
order to answer whether the omission of the materiality element in
Neder was in fact harmless, the Court explicitly turned to Chapman,
-70-
in which it had previously "set forth the test for determining
whether a constitutional error is harmless." Id. (citing Chapman,
386 U.S. at 18). "That test . . . is whether it appears 'beyond a
reasonable doubt that the error complained of did not contribute to
the verdict obtained.'" Id. (quoting Chapman, 386 U.S. at 24).
Comparing the failure to instruct on an element of the offense with
other constitutional errors, the Neder Court concluded "that the
harmless-error inquiry must be essentially the same: Is it clear
beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error?" Id. at 18.
Applying this test, after reviewing the record, the Court
found that "[t]he evidence supporting materiality was so
overwhelming, in fact, that Neder did not argue to the jury -- and
does not argue here -- that his false statements of income could be
found immaterial." Id. at 16. "In this situation, where a
reviewing court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same
absent the error, the erroneous instruction is properly found to be
harmless." Id. at 17. Therefore, the Neder Court concluded that
they "think it beyond cavil here that the error 'did not contribute
to the verdict obtained.'" Id. (quoting Chapman, 386 U.S. at 24).
The Neder Court further instructed that if, after
conducting "a thorough examination of the record," a reviewing
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"court cannot conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the error -- for example,
where the defendant contested the omitted element and raised
evidence sufficient to support a contrary finding -- it should not
find the error harmless." Id. at 19. The Court explained that
such a reviewing court, "in typical appellate-court fashion, asks
whether the record contains evidence that could rationally lead to
a contrary finding with respect to the omitted element." Id.III. Nothing in Neder Itself Mandates the Other Concurrence's
Approach
As is evident from the discussion above and a careful
reading of Neder itself, the Neder Court did not replace the
standard Chapman harmless-error test with a new, two-pronged test
-- that the omitted element must be both (1) "uncontested" and (2)
supported by "overwhelming evidence" in order for an appellate
court to find the instructional error to be harmless. Instead, the
Neder Court explicitly and repeatedly referenced and applied the
standard Chapman harmless-error test (whether it is clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty if it had been properly instructed on the omitted
element), finding that test to be satisfied under the particular
circumstances of the case.
No language in Neder suggests that the Supreme Court
intended to create a new harmless-error test. Instead, Neder
merely indicates that, in a particular factual situation where an
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omitted element was both uncontested and supported by overwhelming
evidence, it was overdetermined that the error was harmless.
Indeed, in context, the very language relied upon by the other
concurrence supports this view:
In this situation, where a reviewing court
concludes beyond a reasonable doubt that the
omitted element was uncontested and supported
by overwhelming evidence, such that the jury
verdict would have been the same absent the
error, the erroneous instruction is properly
found to be harmless. We think it beyond cavil
here that the error "did not contribute to the
verdict obtained."
Neder, 527 U.S. at 17 (quoting Chapman, 386 U.S. at 24) (emphases
added). This quoted language strongly suggests that Neder's
discussion of "uncontested" was, in fact, merely descriptive of
what happened in that case and was not a prescriptive mandate for
every subsequent case involving the omission of an element. See
Neder, 527 U.S. at 19 ("In a case such as this one . . . ."). The
second sentence in the block quote above demonstrates that the
Neder Court continued to refer back to the standard Chapman test,
finding that test to be overwhelmingly satisfied in the particular
factual circumstances (i.e., "uncontested and supported by
overwhelming evidence") involved in Neder.
In fact, Neder's own language makes clear that it did not
intend to establish a new harmless-error test for the omission of
an element from the jury instructions. Neder states that for
various constitutional errors -- including "the failure to instruct
-73-
on an element in violation of the right to a jury trial" -- "the
harmless-error inquiry must be essentially the same: Is it clear
beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error?" Neder, 527 U.S. at 18.
Finally, the Neder Court concluded its harmless-error discussion by
referring once more to the Chapman test: "A reviewing court making
this harmless-error inquiry . . . asks whether the record contains
evidence that could rationally lead to a contrary finding with
respect to the omitted element." Id. at 19. Therefore, nothing in
Neder supports, much less compels, a conclusion that the Supreme
Court intended to supplant the standard Chapman harmless-error test
with a new, mandatory, exclusive, two-pronged test (in which an
omitted element must be both "uncontested" and "supported by
overwhelming evidence") for cases in which the jury instructions
erroneously omitted an element of the offense.
IV. The Importance of the Word "and": Language in Neder
Contradicts the Other Concurrence's Interpretation
The other concurrence relies heavily on one small word in
Neder: the conjunction "and" that joins "uncontested" and
"supported by overwhelming evidence." See ante, at 39-40 ("Neder
expressly states that a 'jury verdict would have been the same
absent' a failure to instruct on an element, 'where a reviewing
court concludes beyond a reasonable doubt that the omitted element
was uncontested and supported by overwhelming evidence.'" (quoting
Neder, 527 U.S. at 17) (emphasis supplied in Judge Lipez's
-74-
concurrence)); id. at 54 (arguing that the Neder "majority adopted
the 'uncontested and . . . overwhelming evidence' formulation for
analyzing whether . . . the error was harmless" (quoting Neder, 527
U.S. at 17) (emphasis supplied in Judge Lipez's concurrence)).
Relying on this quoted language from Neder, and emphasizing the
word "and" that joins the two factors, Judge Lipez concludes that
"the Court in Neder intentionally prescribed the two-pronged
inquiry requiring consideration of whether the omitted element was
uncontested and whether the record contained overwhelming evidence
of that element, and only when both prongs are met can a reviewing
court" find harmless error. Id. at 55 (emphasis in original).
Judge Lipez thus urges that, in this context, we must assign
significant weight to the word "and." Consistent with this view,
the Neder Court's choice of the conjunctive "and" -- as opposed to
the disjunctive "or" -- means that both conditions must be
satisfied in order to draw the resulting conclusion.
Assigning this same weight to a parallel construction
elsewhere in Neder, however, directly contradicts Judge Lipez's
interpretation. In addition to describing a circumstance when an
omitted-element error is harmless, Neder also specified when such
an error is not harmless:
Of course, safeguarding the jury guarantee
will often require that a reviewing court
conduct a thorough examination of the record.
If, at the end of that examination, the court
cannot conclude beyond a reasonable doubt that
the jury verdict would have been the same
-75-
absent the error -- for example, where the
defendant contested the omitted element and
raised evidence sufficient to support a
contrary finding -- it should not find the
error harmless.
Neder, 527 U.S. at 19 (emphasis added). Applying the other
concurrence's logic to this quote yields the following conclusion:
in order for a reviewing court to determine that the error was not
harmless, the omitted element must be both contested and not
supported by overwhelming evidence.
If both Neder "prongs" (uncontested and overwhelming
evidence) were necessary for a finding of harmless error -- as
argued by the other concurrence -- then a failure of either prong
would be sufficient to find the error not harmless. If the Supreme
Court intended such a result, we might expect it to have used the
disjunctive "or" instead of the conjunctive "and" emphasized in the
block quote above. However, the Neder Court only specified that
reviewing courts should not find errors harmless when the defendant
(1) contested the omitted element and (2) raised evidence to
support a contrary finding. Id. Therefore, the principal textual
support for the other concurrence's reading of Neder is at the very
least undermined, and perhaps negated, by closely related, parallel
language elsewhere in Neder itself.
V. Whether the Two-Pronged Neder Inquiry Is Necessary, or Merely
Sufficient, for a Finding of Harmlessness
I read Neder as simply describing a particular
circumstance (when an omitted element is both "uncontested" and
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supported by "overwhelming evidence") that happens to be sufficient
to meet the well-established Chapman harmless-error test -- whether
it is "clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error[.]" Neder, 527
U.S. at 18. In my view, Neder-type errors -- where an omitted
element is both uncontested and supported by overwhelming evidence
-- are merely a subset of the universe of harmless errors. In
other words, all Neder-type errors may be harmless errors, but not
all harmless instructional errors must be Neder-type errors.
In contrast, the other concurrence erroneously takes one
example of a certain circumstance qualifying as a harmless error --
when the omitted element was both uncontested and supported by
overwhelming evidence -- and attempts to substitute that specific
circumstance for the general test itself. Under this view, the new
test supplants the old. In support of this position, the other
concurrence references only one formulation of the harmless-error
test, and posits that this particular formulation is both mandatory
and exclusive. Compare ante, at 54 ("In Neder, where the Court
confronted the outright omission of an element, the majority
adopted the 'uncontested and . . . overwhelming evidence'
formulation for analyzing whether . . . the error was harmless."
(quoting Neder, 527 U.S. at 17) (emphasis supplied in Judge Lipez's
concurrence)), with Neder, 527 U.S. at 17 ("[W]here a reviewing
court concludes beyond a reasonable doubt that the omitted element
-77-
was uncontested and supported by overwhelming evidence, such that
the jury verdict would have been the same absent the error, the
erroneous instruction is properly found to be harmless."). Yet
this is not even the sole formulation of the harmless-error test in
Neder itself. See Neder, 527 U.S. at 18 (stating that for various
constitutional errors -- including "the failure to instruct on an
element in violation of the right to a jury trial" -- "the
harmless-error inquiry must be essentially the same: Is it clear
beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error?"); see also id. at 19 ("A
reviewing court making this harmless-error inquiry . . . . asks
whether the record contains evidence that could rationally lead to
a contrary finding with respect to the omitted element.").
Moreover, the other concurrence's transformation of the
quoted language from Neder into a two-pronged test, in which both
prongs must be satisfied, also commits an error of logic even if
based solely upon the Neder quote itself. The conditional
statement from Neder can be summarized: "If A [uncontested] and B
[overwhelming evidence], then C [harmless error]." I agree that in
Neder, both conditions (A and B) were sufficient to establish
harmless error. However, nothing in Neder mandates that both
conditions are necessary to establish harmless error.
The other concurrence, however, misreads this statement
from Neder as "if -- and only if -- both A [uncontested] and B
-78-
[overwhelming evidence], then C [harmless error]." Such an
interpretation is contrary both to the other articulations of the
test in Neder itself and to the presentation of the test in
subsequent cases. Reading Neder in context, I am convinced that
the Court did not create a new harmless-error test, but instead
simply applied the traditional test, reasoning that in the
particular circumstances presented in that case, both A and B
happened to be satisfied. The other concurrence recognizes this
very possibility. See ante, at 40 ("Neder, however, did not
unequivocally answer whether its two-part formulation for finding
an omitted element harmless in Neder's case . . . was merely
descriptive of the circumstances in Neder itself or also
prescriptive for any finding of harmlessness where an element was
omitted."). As indicated herein and in the appendix, the
overwhelming weight of authorities support the view that Neder's
discussion of "uncontested" was, in fact, "merely descriptive" of
what happened in that case and was not a "prescriptive" mandate of
a new test for every subsequent case.
VI. Alleyne Errors Are Not Structural Errors
The other concurrence's approach in effect subjects a
subset of instructional-error cases to structural error, in
contravention of the Supreme Court's mandate that harmless-error
review -- and not structural error -- applies to such cases. The
Supreme Court has stated that most constitutional errors are
-79-
subject to harmless-error review, and that only in rare cases will
they be deemed structural errors requiring automatic reversal.
See, e.g., Washington v. Recuenco, 548 U.S. 212, 222 (2006)
(holding that preserved Apprendi/Blakely error -- like the failure
to submit an element to the jury in Neder -- is not structural
error and is instead subject to harmless-error review); United
States v. Cotton, 535 U.S. 625, 631-32 (2002) (applying plain-error
review to an unpreserved Apprendi error, and refusing to accept the
defendants' invitation to treat the error as structural). We have
previously held that "there would appear to be no basis for finding
Alleyne error to be one of those rare cases to which harmless-error
review does not apply." United States v. Harakaly, 734 F.3d 88, 95
(1st Cir. 2013).
The other concurrence erroneously suggests that if a
defendant "contests" the omitted element in any way, then such an
error cannot be harmless. Indeed, the other concurrence
"recognize[s] that this conclusion means that, in cases involving
pre-Alleyne trials on direct appeal, a defendant would almost
always be able to contest drug quantity and avoid a finding of
harmless error." See ante, at 58. It argues that "[o]n appeal, or
in resentencing proceedings before the district court -- if that is
where the government first asserts harmless error -- the defendant
would only have to make an argument that could, as a theoretical
matter under the law, negate the omitted element." Id.-80-
Such a conclusion would declaw the harmless-error
doctrine in this context and transform an Alleyne error into de
facto structural error, despite the Supreme Court and First Circuit
cases requiring the application of a harmless-error standard to
Apprendi/Alleyne errors. See, e.g., Recuenco, 548 U.S. at 222;
Cotton, 535 U.S. at 631-32; Harakaly, 734 F.3d at 95–97;
Pérez–Ruiz, 353 F.3d at 17–20. Nor is this concern obviated by the
fact that some conviction remains intact (on the lesser-included
offense). In such cases, a conviction is nonetheless vacated on
the greater offense, which would be otherwise valid but for "'small
errors or defects that have little, if any, likelihood of having
changed the result of the trial.'" See Neder, 527 U.S. at 19(quoting Chapman, 386 U.S. at 22). The other concurrence does not
establish that preserving merely a lesser-included offense
conviction completely satisfies this concern.
Let us consider a hypothetical case in which (a) the
reviewing court concludes beyond a reasonable doubt that the jury
verdict would have been the same absent the error (had the jury
been instructed on the omitted element), but (b) the defendant
nonetheless had contested the omitted element in some way. Under
my view of Neder and subsequent Supreme Court and First Circuit
precedent, the resolution of (a) ends the inquiry: if the reviewing
court is convinced beyond a reasonable doubt that the jury verdict
would have been the same absent the error, then there is no need to
-81-
consider question (b). In contrast, Judge Lipez's suggested
approach would reverse the defendant's conviction in such a case,
reasoning that there is no need to consider question (a). In my
view, such an approach is akin, if not functionally equivalent, to
structural error: the reviewing court would reverse the conviction
even if the error had no effect on the jury's verdict. Controlling
precedent does not permit such a result, as the Supreme Court has
explicitly instructed that Alleyne errors are not structural. See,
e.g., Recuenco, 548 U.S. at 222; Cotton, 535 U.S. at 631-32.
Therefore, the Supreme Court's instruction that harmless error --
and not structural error -- applies to the type of instructional
error at issue here and in Neder also counsels against the other
concurrence's interpretation.
VII. The Eleventh Circuit's Ultimate Resolution of Neder on Remand
Additionally, the decision of the Eleventh Circuit on
remand in Neder provides further support for my view, and it
explicitly rejects the new two-pronged test proposed by Judge
Lipez. After the Supreme Court remanded Neder's case to the
Eleventh Circuit for reconsideration, the Eleventh Circuit affirmed
Neder's convictions, concluding that the district court's failure
to instruct on the materiality element was harmless error. United
States v. Neder, 197 F.3d 1122, 1124 (11th Cir. 1999). On remand,
Neder -- similarly to Judge Lipez's approach here -- argued that
"the Supreme Court held that the failure to instruct on materiality
-82-
can never be harmless error unless the Government shows both that
Neder never contested materiality and that the evidence
overwhelmingly supports the materiality of every charged
falsehood." Id. at 1129 (emphases added). The Eleventh Circuit
resoundingly rejected that argument:
However, the Supreme Court did not hold that
omission of an element can never be harmless
error unless uncontested. Indeed, the Supreme
Court emphasized that the correct focus of
harmless-error analysis is: "Is it clear
beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent
the error?" Stated another way, the focus is
whether "the jury verdict would have been the
same absent the error" or "whether the record
contains evidence that could rationally lead
to a contrary finding with respect to
[materiality]." Thus, whether Neder contested
materiality may be considered but is not the
pivotal concern. Instead, what the evidence
showed regarding materiality is the
touchstone. Indeed, as outlined in the
following, more specific discussion relating
to the counts at issue, the Government's
evidence of materiality for each of these
bank, mail, and wire fraud counts is
overwhelming.
Id. (emphases added) (footnote and internal citations omitted).
The Eleventh Circuit further explained that "[u]nder harmless-error
analysis, . . . . the Government must show that the evidence of
materiality is so overwhelming . . . that no rational jury,
properly instructed on the element of materiality, could have
acquitted Neder on that count." Id.In a footnote, the Eleventh Circuit further considered
Neder's argument -- predicated upon the same Neder language relied
-83-
upon by Judge Lipez here -- that the omitted element must be
uncontested for a finding of harmlessness. Id. at 1129 n.6. The
court reasoned that "[t]he language from the Supreme Court's
opinion that Neder cites to support his argument on this point is
taken out of context." Id."Considered in context, the Supreme Court's statement
clearly does not mean that omission of an element of an offense can
never be harmless error unless uncontested." Id. "The statement"
-- that the error is harmless because "'the omitted element was
uncontested and supported by overwhelming evidence'" -- "means only
that the fact materiality was not contested supports the conclusion
that the jury's verdict would have been the same absent the error."
Id. (quoting Neder, 527 U.S. at 17). Therefore, the Eleventh
Circuit's resolution of the Neder case on remand strongly militates
against the other concurrence's reading of the Supreme Court's
opinion in Neder.
VIII. Post-Neder Application of the Harmless-Error Test
A. Supreme Court
No post-Neder Supreme Court case supports the other
concurrence's gloss on Neder. Rather, every subsequent Supreme
Court case citing Neder reinforces the primacy of the standard
Chapman harmless-error test. See, e.g., Premo, 131 S. Ct. at 744("[O]n direct review following an acknowledged constitutional error
at trial," the government has "the burden of showing that it was
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'clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.'" (quoting Neder, 527
U.S. at 18)); Mitchell, 540 U.S. at 17-18 ("A constitutional error
is harmless when 'it appears beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.'"
(quoting Neder, 527 U.S. at 15)).
B. First Circuit
Judge Lipez's preferred interpretation of Neder is not
faithful to a fair reading of the overwhelming weight of our
precedent. Indeed, he fails to identify a single First Circuit
case that explicitly endorses his understanding of Neder. By
contrast, the post-Neder First Circuit cases reaffirming the
standard Chapman harmless-error test are overwhelming in number.
Indeed, they are so numerous that cataloguing them proved
prohibitively time-consuming. In the appendix to this concurrence,
I have provided eighteen examples of such First Circuit cases,
including six cases from 2014 alone. See, e.g., United States v.
Ramírez-Negrón, 751 F.3d 42, 51 n.8 (1st Cir. 2014) (stating than
an Alleyne error would be harmless beyond a reasonable doubt if "no
reasonable jury could have found that the defendants were
responsible for drug quantities below the respective thresholds
triggering the mandatory minimum sentences").
"A panel of this court is normally bound to follow an
earlier panel decision that is closely on point, unless an
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exception exists to the principles of stare decisis." United
States v. Rodríguez–Pacheco, 475 F.3d 434, 441 (1st Cir. 2007).
Judge Lipez's view -- that Neder replaced the Chapman harmless-
error test with a two-pronged test for harmlessness where the jury
was not instructed on an element of the crime -- is not consistent
with binding First Circuit precedent, including cases authored or
joined by all three judges on the instant panel. Some of these
cases are included in the appendix at the end of this concurrence.
This past June, for example, we held that "instructional
error, including omission of an element, is harmless if it is clear
beyond a reasonable doubt that a rational jury would have found
guilt absent the error." United States v. Marshall, 753 F.3d 341,
346 (1st Cir. 2014) (emphasis added). Although the defendant in
Marshall technically contested proof of an element of the offense,
we nonetheless concluded that the error was harmless because
"[t]here is no reasonable doubt that a rational fact-finder would
have found Marshall guilty of" the disputed element. Id.We applied the same test in United States v. Newell, 658
F.3d 1 (1st Cir. 2011), a unanimous opinion joined by Judge Lipez.
In Newell, we stated that "the failure to instruct the jury on [an
omitted element] is subject to harmless error review," which
"requires ascertaining 'whether it appears beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.'" Id. at 17 n.19 (quoting Neder, 527 U.S. at
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15)). Applying that test, we held that "even if the district court
erred in not giving the requested materiality instruction . . .
that error was harmless as the evidence of materiality was more
than sufficient to support the convictions under this standard."
Id.Citing Newell and Neder, we applied like reasoning to
arrive at a similar holding in United States v. McDonough, 727 F.3d
143, 161-62 (1st Cir. 2013). The unanimous McDonough panel,
including Judge Lipez, concluded that -- assuming that the district
court refused to instruct the jury on a required element -- "the
evidence was [nonetheless] 'more than sufficient to support the
convictions.'" Id. at 162 (quoting Newell, 658 F.3d at 17 n.19).
On that basis, the panel was "confident that the same result would
have obtained" if the jury had been properly instructed as to the
allegedly omitted element. Id. Therefore, the panel held that any
error was ultimately harmless. Id. at 161.
Other First Circuit cases further solidify the conclusion
that Judge Lipez's gloss on Neder is inconsistent with our
precedent. See, e.g., United States v. Melvin, 730 F.3d 29, 39
(1st Cir. 2013) (constitutional error "requires reversal unless the
government proves 'beyond a reasonable doubt that the error did not
influence the verdict'"); United States v. Godin, 534 F.3d 51, 61
(1st Cir. 2008) ("When examining whether the omission of an element
in a jury instruction is harmless error, we ask whether the record
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contains evidence that could rationally lead to a contrary finding
with respect to the omitted element." (internal quotation marks and
citation omitted)); United States v. Morgan, 384 F.3d 1, 8 (1st
Cir. 2004) (Apprendi errors "should be held harmless so long as the
evidence for the trial judge's factual findings is overwhelming and
no reasonable jury could have disagreed with them"); United States
v. Soto-Beníquez, 356 F.3d 1, 46 (1st Cir. 2003) ("An Apprendi
error is harmless where the evidence overwhelmingly establishes the
minimum drug quantity needed to justify the statutory maximum under
which the defendants were sentenced."). None of the preceding
cases -- nor any other First Circuit cases I have found -- state
that a reviewing court can never find the omission of an element to
be harmless error simply because the defendant contested the
omitted element in some way. Therefore, the other concurrence's
interpretation of Neder's two-pronged inquiry finds little support
in the existing precedent by which we are bound.
C. Lack of Support for the Other Concurrence's Position
Neder was decided in June 1999. In the intervening
fifteen years, Neder has been cited in over 3,600 cases. It is
telling that the other concurrence fails to identify a single case
that explicitly holds that its reading of Neder is correct. Judge
Lipez has pointed to cases with language that might, at best, be
consistent with his suggested approach. None of those cases are
compelling, however, particularly in light of Supreme Court and
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First Circuit precedent and the examples listed in the appendix.
Below, I review the cases relied upon by the other concurrence to
support its view of Neder, concluding that these cases do little to
demonstrate that Judge Lipez's interpretation is correct.
1. First Circuit
The First Circuit cases cited by Judge Lipez as
"inconsistent" in their application of Neder are easily reconciled
with my view. Neder's two factors ("uncontested" and "supported by
overwhelming evidence") are best understood as merely two reasons
why the Neder Court concluded that the jury verdict was unaffected
by the omission of the materiality element. It thus makes perfect
sense that we sometimes emphasize whether a particular omitted
element was contested (and to what degree), sometimes emphasize the
strength of the evidence regarding the omitted element, sometimes
discuss both, and sometimes examine other factors and reasons. In
other words, the contested-or-uncontested nature of the element,
and the strength of the evidence supporting that element, both can
serve evidentiary functions: they both can affect the ultimate
determination whether it was "clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent the
error." Neder, 527 U.S. at 18. Applying this view to the First
Circuit cases cited by the other concurrence, any apparent
inconsistency melts away. In any event, as indicated by the non-
exhaustive selection of cases in the appendix, the overwhelming
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weight of First Circuit cases support the conclusion that the
standard Chapman harmless-error test applies to the omission of an
element from jury instructions.
2. Other Circuit Courts of Appeals
The other concurrence cites cases from four circuit
courts of appeals -- the Second, Fourth, Ninth, and Eleventh
Circuits -- as examples of an inter-circuit conflict. See ante, at
45-48. Of those cases, however, only the Ninth Circuit case might
provide any sort of support for the other concurrence's approach.
Even that case, however, applied the standard Chapman test,
reasoning that "[the Apprendi error was, of course, a
constitutional one," and that the court "must therefore reverse
unless we find beyond a reasonable doubt that the result would have
been the same absent the error." United States v. Guerrero-Jasso,
752 F.3d 1186, 1193 (9th Cir. 2014) (internal quotation marks,
alterations, and citations omitted). Furthermore, Guerrero-Jasso
involved a guilty plea (and not a trial), and the evidence
regarding the omitted element was introduced, for the first time,
after the defendant's conviction. Id. ("Where, as here, there was
no trial but a guilty plea, and the evidence is introduced
post-conviction by the government only to demonstrate harmlessness,
it would fundamentally undermine the Apprendi protections to
require the defendant affirmatively to present evidence to counter
facts that were never properly established in accord with Apprendi
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in the first place."). On that basis, the instant case -- which
involved overwhelming evidence presented at trial -- is easily
distinguishable from Guerrero-Jasso.
The Eleventh Circuit case cited by Judge Lipez was the
Neder decision on remand, which, as described above, explicitly
rejected the other concurrence's approach. See Neder, 197 F.3d at
1129 ("[T]he Supreme Court did not hold that omission of an element
can never be harmless error unless uncontested. Indeed, the
Supreme Court emphasized that the correct focus of harmless-error
analysis is: 'Is it clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error?'"
(citation omitted)). Furthermore, neither the Second Circuit nor
the Fourth Circuit cases support the other concurrence's mandatory,
exclusive, two-pronged test. Recall that the other concurrence
explicitly argues that Neder "requires that an omitted element be
uncontested in order to be found harmless." See ante, at 42. In
contrast, in both the Second and the Fourth Circuits, a finding
that the omitted element is contested does not end the inquiry.
Indeed, when an omitted element is contested, the Second Circuit
goes on to ask: (1) whether the evidence would permit a finding in
favor of the defendant on that element; and (2) "'whether the jury
would nonetheless have returned the same verdict of guilty.'"
United States v. Needham, 604 F.3d 673, 679 (2d Cir. 2010) (quoting
United States v. Jackson, 196 F.3d 383, 386 (2d Cir. 1999)). The
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Fourth Circuit conducts a similar inquiry: when an omitted element
is contested, the reviewing court asks "whether the 'record
contains evidence that could rationally lead to a contrary finding
with respect to that omitted element.'" United States v. Brown,
202 F.3d 691, 701 (4th Cir. 2000) (quoting Neder, 527 U.S. at 19).
The approaches of the Second and Fourth Circuits are thus
consistent with my interpretation, and both refer back to the
standard Chapman harmless-error test -- whether the jury's verdict
would have been the same absent the error.
3. State Courts
In a section titled "Criticism in the State Courts," the
other concurrence cites three state-court decisions (from
Mississippi, New Hampshire, and Indiana) that it implies undermine
Neder in some way. Ante, at 48. Judge Lipez cites decisions by
two state supreme courts (Mississippi and New Hampshire) to argue
that "[s]everal state supreme courts have held that their state
constitutions provide a broader jury trial guarantee than Neder
recognized in the federal Constitution." Id. I do not question
this assertion, but by its own terms, it is entirely irrelevant to
the question under consideration. The issue being debated does not
involve interpretation of the Mississippi and New Hampshire state
constitutions. As for the 2005 Indiana intermediate state court of
appeals decision that suggested that Neder might be "short-lived,"
see Freeze v. State, 827 N.E.2d 600, 605 (Ind. Ct. App. 2005), I
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simply note that nine years have passed since the Indiana court's
statement, and fifteen years have passed since Neder was decided.
The Indiana prediction may yet be revealed as prescient, but for
the moment, its prophesy has little bearing on the current state of
the controlling precedent.
IX. Conclusion
Contrary to the position taken in the other concurrence,
I have not encountered any "significant inconsistency" in First
Circuit cases applying the harmless-error test. Under a proper
application of the governing precedent, the First Circuit cases
identified by the other concurrence as "inconsistent" are rather
almost entirely consistent with the correct interpretation of Neder
and its progeny. To the extent that any of those cases are
inconsistent with the standard Chapman harmless-error test, they
represent a very small minority: the overwhelming weight of the
controlling Supreme Court and First Circuit cases militate against
the other concurrence's creative interpretation of a few isolated
statements in Neder. In the absence of a Supreme Court ruling
overruling Neder, any such "inconsistency" is properly resolved
against the interpretation proposed in the other concurrence.
As stated by the Supreme Court in Neder itself, and as
reinforced by subsequent Supreme Court and First Circuit cases,
"the test for determining whether a constitutional error is
harmless" remains the standard test articulated in Chapman:
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"whether it appears 'beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.'" Neder,
527 U.S. at 15 (quoting Chapman, 386 U.S. at 24); see also Premo,
131 S. Ct. at 744 ("[O]n direct review following an acknowledged
constitutional error at trial," the government has "the burden of
showing that it was 'clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the
error.'" (quoting Neder, 527 U.S. at 18)); Mitchell, 540 U.S. at
17-18 (same).
X. Appendix: Examples of Supreme Court, First Circuit, and Other
Circuit Court Cases Discussing the Constitutional Harmless-
Error Test
For the reader's reference and convenience, below is a
non-exhaustive list of thirty relevant cases -- from the Supreme
Court, First Circuit, and other circuit courts of appeal -- that
discuss the constitutional harmless-error test and support the
standard test as articulated in Chapman:
A. Supreme Court Cases
1. Premo v. Moore, 131 S. Ct. 733, 744 (2011)
("[O]n direct review following an acknowledged constitutional error
at trial," the government has "the burden of showing that it was
'clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.'" (quoting Neder, 527
U.S. at 18)).
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2. Rivera v. Illinois, 556 U.S. 148, 155-56
(2009) (affirming the Illinois Supreme Court's finding of harmless
error regarding the improper denial of a peremptory challenge, when
"it was clear beyond a reasonable doubt that a rational jury would
have found [Rivera] guilty absent the error" and the challenged
juror's "presence on the jury did not prejudice Rivera because any
rational trier of fact would have found [Rivera] guilty of murder
on the evidence adduced at trial" (internal quotation marks and
citations omitted)).
3. Washington v. Recuenco, 548 U.S. 212, 222
(2006) ("Failure to submit a sentencing factor to the jury, like
failure to submit an element to the jury, is not structural
error.").
4. Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003)
("A constitutional error is harmless when 'it appears beyond a
reasonable doubt that the error complained of did not contribute to
the verdict obtained.'" (quoting Neder, 527 U.S. at 15)).
5. Neder v. United States, 527 U.S. 1, 18 (1999)
(stating that for various constitutional errors -- including "the
failure to instruct on an element in violation of the right to a
jury trial" -- "the harmless-error inquiry must be essentially the
same: Is it clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error?"); id. at
15 (articulating the standard constitutional harmless-error test as
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"whether it appears 'beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained'" (quoting
Chapman, 386 U.S. at 24)); id. at 19 ("A reviewing court making
this harmless-error inquiry . . . . asks whether the record
contains evidence that could rationally lead to a contrary finding
with respect to the omitted element.").
6. Delaware v. Van Arsdall, 475 U.S. 673, 681
(1986) ("[A]n otherwise valid conviction should not be set aside if
the reviewing court may confidently say, on the whole record, that
the constitutional error was harmless beyond a reasonable doubt.").
7. Chapman v. California, 386 U.S. 18, 24 (1967)
("requiring the beneficiary of a constitutional error to prove
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained").
B. First Circuit Cases
1. United States v. Barnes, No. 11-1093, 2014 WL
5072846, at *3 n.5 (1st Cir. Oct. 10, 2014) ("An Alleyne error can
be harmless if 'no reasonable jury' -- hearing the same evidence
that the sentencing judge heard -- could hold the defendant
responsible for a drug amount 'below the . . . threshold [ ]
triggering the mandatory minimum[ ].'" (quoting Ramírez–Negrón, 751
F.3d at 51 n.8)); id. at *4 (stating that our "stiff test" for
harmless error is whether the government has "prove[n] beyond a
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reasonable doubt that the error did not 'contribute' to the
complained-about sentence" (quoting Pérez–Ruiz, 353 F.3d at 17)).
2. United States v. Santiago, No. 13-1146, 2014
WL 4494198, at *8 (1st Cir. Sept. 12, 2014) (stating that to
determine whether a constitutional error is harmless, "the
government has the burden of proving beyond a reasonable doubt that
the error did not affect the defendant's substantial rights"
(quoting United States v. Sepúlveda–Contreras, 466 F.3d 166, 171
(1st Cir. 2006))).
3. United States v. Marshall, 753 F.3d 341, 346
(1st Cir. 2014) ("[A]ny error was harmless when assessed under the
standard that instructional error, including omission of an
element, is harmless if it is clear beyond a reasonable doubt that
a rational jury would have found guilt absent the error.").
4. Connolly v. Roden, 752 F.3d 505, 509 (1st Cir.
2014) ("In 1967, the Supreme Court in Chapman v. California
articulated the constitutional harmless error standard, which
provides that, on direct appellate review, an error at trial
affecting the defendant's constitutional rights will be deemed
harmless only if it can be shown to be harmless beyond a reasonable
doubt." (quoting Chapman, 386 U.S. at 24)).
5. United States v. Ramírez-Negrón, 751 F.3d 42,
51 n.8 (1st Cir. 2014) (stating than an Alleyne error would be
harmless beyond a reasonable doubt if "no reasonable jury could
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have found that the defendants were responsible for drug quantities
below the respective thresholds triggering the mandatory minimum
sentences").
6. United States v. Lyons, 740 F.3d 702, 714 (1st
Cir. 2014) ("Where a jury is properly instructed on two theories of
guilt, one of which is later determined to be invalid, we can
affirm the conviction only if we conclude beyond a reasonable doubt
that the jury verdict would have been the same absent the error."
(citations and internal quotation marks omitted)).
7. United States v. Harakaly, 734 F.3d 88, 95
(1st Cir. 2013) ("In drug-trafficking cases involving Apprendi
errors, we sometimes have treated the presence of overwhelming
evidence of the requisite drug types and quantities as a proxy for
harmlessness." (emphases added) (quoting Pérez–Ruiz, 353 F.3d at
18)); id. (finding harmless error when the defendant did "not
seriously contest the finding that he was responsible for more
than" the threshold quantity) (emphasis added); id. at 96 (finding
the drug-quantity evidence to be overwhelming when "[t]he delivery
that the police intercepted, taken alone, was nearly four times the
triggering amount," and when the defendant himself "acknowledged
responsibility for a quantity of drugs that far exceed[ed] the
triggering amount").
8. United States v. Melvin, 730 F.3d 29, 39 (1st
Cir. 2013) (the harmless-error test for a constitutional error
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"requires reversal unless the government proves 'beyond a
reasonable doubt that the error did not influence the verdict'")
(quoting United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)).
9. United States v. McDonough, 727 F.3d 143, 157
(1st Cir. 2013) (unanimous opinion, which Judge Lipez joined in
full) ("[A]n incorrect instruction does not require reversal if the
error was harmless. In the case of an error of 'constitutional
dimension,' the government is required to establish beyond a
reasonable doubt that the error did not influence the verdict."
(internal citation omitted)); id. at 162 ("[A]ssuming that [the
district court refused to instruct the jury on] a required element,
the evidence was more than sufficient to support the
convictions. . . . [Thus,] we are confident that the same result
would have obtained if [the jury was properly instructed].")
(citations and internal quotation marks omitted).
10. United States v. Zhen Zhou Wu, 711 F.3d 1, 20
(1st Cir. 2013) ("In any event, given the [conflicting evidence] on
this very matter, we cannot 'conclude[ ] beyond a reasonable doubt
. . . that the jury verdict would have been the same absent the
error.'" (quoting Neder, 527 U.S. at 17)).
11. United States v. Green, 698 F.3d 48, 53-54
(1st Cir. 2012) (finding a constitutional error to be harmless
after concluding "beyond a reasonable doubt that any error here did
not contribute to the verdict").
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12. United States v. Newell, 658 F.3d 1, 17 n.19
(1st Cir. 2011) (unanimous opinion, which Judge Lipez joined in
full) ("[T]he failure to instruct the jury on [an omitted element]
is subject to harmless error review," which "requires ascertaining
'whether it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.'"
(quoting Neder, 527 U.S. at 15)); id. ("[E]ven if the district
court erred in not giving the requested materiality instruction
. . . that error was harmless as the evidence of materiality was
more than sufficient to support the convictions under this
standard.").
13. United States v. Dancy, 640 F.3d 455, 463
(1st Cir. 2011) ("Any error is harmless if the government shows it
is 'highly probable that the error did not influence the verdict.'
(quoting United States v. Flores–de–Jesús, 569 F.3d 8, 27 (1st Cir.
2009)).
14. United States v. Godin, 534 F.3d 51, 61 (1st
Cir. 2008) ("When examining whether the omission of an element in
a jury instruction is harmless error, we ask whether the record
contains evidence that could rationally lead to a contrary finding
with respect to the omitted element." (internal quotation marks
omitted)).
15. United States v. Morgan, 384 F.3d 1, 8 (1st
Cir. 2004) (stating that Apprendi errors "should be held harmless
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so long as the evidence for the trial judge's factual findings is
overwhelming and no reasonable jury could have disagreed with
them").
16. United States v. Soto-Beníquez, 356 F.3d 1,
46 (1st Cir. 2003) ("An Apprendi error is harmless where the
evidence overwhelmingly establishes the minimum drug quantity
needed to justify the statutory maximum under which the defendants
were sentenced.").
17. United States v. Pérez-Ruiz, 353 F.3d 1, 17
(1st Cir. 2003) ("[W]hen a non-structural error is of
constitutional dimension[,] . . . . the government must prove that
the error was harmless beyond a reasonable doubt, or, put another
way, that it can fairly be said beyond any reasonable doubt that
the assigned error did not contribute to the result of which the
appellant complains."); id. at 19 (citing cases finding harmless
error due to "overwhelming evidence of drug type and quantity" when
there was "testimony describing quantities of drugs actually seized
from coconspirators" or "the evidence tying the defendant to the
charged conspiracy involved drugs that were indisputably in excess
of the requisite amounts").
18. United States v. Prigmore, 243 F.3d 1, 21
(1st Cir. 2001) (articulating the Neder harmless-error test as
whether it is "'clear beyond a reasonable doubt that a rational
jury would have found' defendants guilty even if properly
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instructed" (quoting Neder, 527 U.S. at 18)); id. at 21 n.7 (noting
that the Chapman test applies to appellate review of constitutional
errors) (citing Chapman, 386 U.S. at 24); id. at 22 ("We do not
believe, however, that the evidence is so one-sided as to render
harmless the underlying instructional error we have identified.
Unlike the government, we do not see this as a case, like Neder,
where it is far-fetched to conclude that a properly instructed jury
might have returned different verdicts than those returned.").
C. Cases from Other Circuits
1. United States v. Ramos-Cruz, 667 F.3d 487, 496
(4th Cir. 2012) ("[I]f the defendant contested the omitted element,
we ask whether the record contains evidence that could rationally
lead to a contrary finding with respect to that omitted element.")
(internal quotation marks omitted).
2. United States v. Needham, 604 F.3d 673, 679
(2d Cir. 2010) ("In United States v. Jackson, 196 F.3d 383, 386-87
(2d Cir. 1999), we interpreted the Supreme Court's decision in
Neder, describing the analysis a reviewing court must undertake to
determine whether the omission of an element was harmless. In so
doing, we held that "if the evidence supporting the omitted element
was controverted, harmless error analysis requires the appellate
court to conduct a two-part inquiry, searching the record in order
to determine (a) whether there was sufficient evidence to permit a
jury to find in favor of the defendant on the omitted element, and,
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if there was, (b) whether the jury would nonetheless have returned
the same verdict of guilty.'" (quoting Jackson, 196 F.3d at 386)).
3. United States v. Korey, 472 F.3d 89, 96-97 (3d
Cir. 2007) ("While holding that this jury instruction as to the
defendant's state of mind was in error, we observed that '[a]
verdict may still stand, despite erroneous jury instructions, where
the predicate facts conclusively establish intent, so that no
rational jury could find that the defendant committed the relevant
criminal act but did not intend to cause the injury.'" (quoting
Whitney v. Horn, 280 F.3d 240, 260 (3d Cir. 2002)) (internal
quotation marks omitted)).
4. United States v. Brown, 202 F.3d 691, 701 (4th
Cir. 2000) ("[I]f the defendant contested the omitted element,
Neder mandates a second inquiry. In that event, we must determine
whether the 'record contains evidence that could rationally lead to
a contrary finding with respect to that omitted element.'" (quoting
Neder, 527 U.S. at 19)).
5. United States v. Neder, 197 F.3d 1122, 1129
(11th Cir. 1999) (considering the Supreme Court's Neder decision on
remand, and stating that "the Supreme Court did not hold that
omission of an element can never be harmless error unless
uncontested. Indeed, the Supreme Court emphasized that the correct
focus of harmless-error analysis is: 'Is it clear beyond a
reasonable doubt that a rational jury would have found the
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defendant guilty absent the error?'" (citation omitted)); id.("Thus, whether Neder contested materiality may be considered but
is not the pivotal concern. Instead, what the evidence showed
regarding materiality is the touchstone."); id. at 1129 n.6
("Considered in context, the Supreme Court's statement clearly does
not mean that omission of an element of an offense can never be
harmless error unless uncontested."); id. ("The statement" -- that
the error is harmless because "'the omitted element was uncontested
and supported by overwhelming evidence'" -- "means only that the
fact materiality was not contested supports the conclusion that the
jury's verdict would have been the same absent the error."
(citations omitted)).
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