Jury Instructions -- the Process, Including Waiver and Forfeiture of Objections (6/14/13)

Today I write on a nontax case because I focus on an issue that is presented in all criminal jury trials, tax criminal trials as well.  I focus on the process and how objections can be preserved or lost intentionally or unintentionally.

In United States v. Natale, 719 F.3d 719 (7th Cir. 2013), here, The defendant, a surgeon, was convicted of making false statements to Medicare.  On appeal, the defendant objected to the jury instructions on the false statements counts.  The counts involved in the instructions was for violation of 18 USC 1035, False statements relating to health care matters, here.   That crime requires several elements that the Court of Appeals ultimately found not to have been adequately presented in the jury instructions.  The Court of Appeals, however, affirmed the conviction because the error, in layman's terms, was not sufficient prejudicial to warrant reversal.  I won't say anything more about the substance of the jury instructions and their deficiencies.  Rather, I want to present here the Court of Appeals' discussion about the process courts undertake -- or should undertake -- to determine the jury instructions that will be given, counsel's role in that process and then a defendant's right to challenge, after conviction, the instructions that were given.  This process applies in all criminal cases including tax cases.  Accordingly, this information from the case will be useful to students and new practitioners.

Natale's primary challenge to his conviction focuses on the jury instructions that the trial judge issued on the false statement counts. The government responds that Natale has waived any challenge to these instructions because he affirmatively approved of them at the jury instruction conference. Moving through the proposed instructions one by one, the district court asked, "[Proposed Instruction] No. 29 is making false statements instruction out of 18 United States Code, Section 1001, and 18 United States Code, Section 1035. Any problem with that?" Defense counsel's response: "No." Counsel engaged in a similar question-and-answer colloquy regarding the remainder of the instructions on the false statements counts, with the trial court asking counsel if he "had any problem with" each proposed instruction. Each time, counsel affirmatively expressed having no problem with the proposed instruction. The government now suggests that the defense attorney's comments during this exchange affirmatively approved the jury instruction, resulting in waiver. 

Ordinarily, when a defendant does not object to a jury instruction before the jury retires to deliberate, the defendant may later attack that instruction only for plain error. Fed. R. Crim. P. 30(d); Johnson v. United States, 520 U.S. 461, 465-66, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997). However, a defendant who waives—rather than forfeits—his objection cannot avail himself of even the demanding plain error standard of review. See United States v. Olano, 507 U.S. 725, 732-33, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) ("Deviation from a legal is 'error' unless the has been waived."); United States v. DiSantis, 565 F.3d 354, 361 (7th Cir. 2009) ("Waiver 'extinguishes any error' and 'precludes appellate review.'" (citing United States v. Pree, 408 F.3d 855, 872 (7th Cir. 2005)). He has no recourse and generally must live with his earlier decision not to press the error. Such waiver occurs only when a defendant makes a "knowing and intentional decision" to forgo a challenge before the district court. United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005). In contrast, when the "defendant negligently bypasses a valid argument," he has merely forfeited the claim and can raise it on appeal, subject to plain error review. United States v. Vasquez, 673 F.3d 680, 684 (7th Cir. 2012) (citing United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010)). We generally construe waiver "liberally in favor of the defendant." Jaimes-Jaimes, 406 F.3d at 848.

Although passive silence with regard to a jury instruction permits plain error review, see Fed. R. Crim. P. 30(d); see, e.g., United States v. Mitan, 966 F.2d 1165, 1177 (7th Cir. 1992), a defendant's affirmative approval of a proposed instruction results in waiver, e.g., United States v. Courtright, 632 F.3d 363, 371 (7th Cir. 2011). Our cases have strictly applied this to affirmative expressions of approval without examining whether the statements were a "knowing and intentional decision" or resulted from "negligently bypass[ing] a valid argument." n2 See Courtright, 632 F.3d at 371; United States v. O'Connor, 656 F.3d 630, 644 (7th Cir. 2011); DiSantis, 565 F.3d at 361; United States v. Griffin, 493 F.3d 856, 863 (7th Cir. 2007) [hereinafter Griffin I]; United States v. Anifowoshe, 307 F.3d 643, 650 (7th Cir. 2002); United States v. Salerno, 108 F.3d 730, 742 (7th Cir. 1997); United States v. Lakich, 23 F.3d 1203, 1207-08 (7th Cir. 1994); United States v. Canino, 949 F.2d 928, 940 (7th Cir. 1991). As a result, affirmative statements as simple as "no objection" or "no problem" when asked about the acceptability of a proposed instruction have resulted in waiver. See O'Connor, 656 F.3d at 644; Griffin I, 493 F.3d at 863; Anifowoshe, 307 F.3d at 650; United States v. Griffin, 84 F.3d 912, 923-24 (7th Cir. 1996) [hereinafter Griffin II]. But see United States v. Roglieri, 700 F.2d 883, 888 (2d Cir. 1983) (applying plain error review where defense counsel explicitly expressed no objection to the jury instruction). We have applied this strictly because of the difficulty in teasing out the subjective motivations behind the "no objection" statement—from that statement alone, a court cannot easily discern whether the attorney bypassed a challenge for strategic reasons (which would result in waiver) or whether the attorney simply failed to recognize error that he otherwise would have raised. As Anifowoshe explained, failure to find waiver from affirmative statements of "no objection" and the like would "create an almost insurmountable standard to proving waiver."  307 F.3d at 650.
   n2 Other circuits have not applied this rigid and instead have analyzed whether a deliberate, strategic reason could have justified the attorney's affirmative approval of a jury instruction. United States v. Rucker, 417 F. App'x 719, 721-22 (10th Cir. 2011) (non-precedential decision); Virgin Islands v. Rosa, 399 F.3d 283, 291 (3d Cir. 2005); United States v. Perez, 116 F.3d 840, 845-46 (9th Cir. 1997) (en banc); United States v. Drougas, 748 F.2d 8, 30 (1st Cir. 1984) ("Defense counsel explicitly approved the reasonable doubt instruction and is thus precluded . . . from now objecting absent plain error."); United States v. Wiggins, 530 F.2d 1018, 1020, 174 U.S. App. D.C. 166 (D.C. Cir. 1976) (applying plain error standard when defense counsel expressed satisfaction with jury instruction). 

This approach can sometimes produce especially harsh results. Just as the district court did in Natale's case, a thorough district court judge will almost always hold a jury instruction conference and put up the proposed instructions, one by one, for discussion by the attorneys. See United States v. Hollinger, 553 F.2d 535, 542 (7th Cir. 1977) ("An on-the-record instructions conference . . . clearly enables the trial judge, in advance of instructing the jury, to have erroneous aspects [of the instructions] pointed out to him."). The result: A trial court will almost always require of counsel some affirmative response—such as "no objection" or "no problem"—that will operate as waiver on appeal. Only rarely will a jury instruction conference provide the opportunity for agnostic silence that preserves plain error review. In short, as our cases have applied this , a defense attorney who has not objected to a proposed instruction will nearly always waive any potential objection, regardless of whether his "no objection" resulted from a reasoned, strategic decision or from a negligent failure to recognize the error. n3
   n3 Such harshness is only magnified by the importance of the jury instruction in a trial. Even though erroneous jury instructions are not the type of structural error that necessarily creates harm in a criminal trial, see United States v. Griggs, 569 F.3d 341, 344 (7th Cir. 2009), the Rules of Civil Procedure recognize the weighty role jury instructions fill: In all but the context of jury instructions, a party who fails to preserve an error in a civil trial has no recourse on appeal. In contrast, a party can still challenge a jury instruction in a civil case for plain error notwithstanding his earlier failure to object. Fed. R. Civ. P. 51(d). 

An approach that might mitigate this harshness and leave open a wider window for forfeiture than our cases have previously done could be considered when, as in this case, defense counsel's affirmative approval of the jury instruction is nothing more than a simple "no" or "no objection" during a rote call-and-response colloquy with the district judge. In such an instance, we could more closely examine whether the defendant has truly waived his challenge to the jury instruction or merely forfeited it. Cf. United States v. Alcala, 678 F.3d 574, 579 (7th Cir. 2012) ("[N]arrative responses in a plea colloquy are superior to inquiries from the court that elicit 'yes' or 'no' answers[.]"); United States v. Groll, 992 F.2d 755, 760 n.7 (7th Cir. 1993) ("[S]imple affirmative or negative answers to the court's rote interrogatories give us pause in finding that [the defendant] entered her plea knowingly."); United States v. Fountain, 777 F.2d 351, 356 (7th Cir. 1985) ("Simple affirmative or negative answers or responses which  merely mimic the indictment or the plea agreement cannot fully elucidate the defendant's state of mind as required by Rule 11."). 

Additionally, we note that waiver is not an absolute bar on our consideration of issues not preserved below, even if intentionally foregone for strategic reasons. When the "interests of justice" so require, we may reach the merits of a waived issue. See Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 608 (7th Cir. 2012) (citing Judge v. Quinn, 624 F.3d 352, 360 (7th Cir. 2010)). Perhaps erroneous jury instructions—especially jury instructions that inaccurately state the law by minimizing or omitting elements required for conviction—would more readily present the circumstances that allow consideration of waived issues: a "miscarriage of justice," "equities heavily preponderat[ing] in favor of correcting" the error, or "plain error that seriously affected the fairness, integrity, or public reputation of the judicial proceedings." Id. at 608-09 (citing 36 C.J.S. Federal Courts § 458)); see also Olano, 507 U.S. at 736 (noting that "conviction or sentencing of an actually innocent defendant" qualifies as a "miscarriage of justice"). 

In any event, we need not reach any of these issues in this case for even in applying plain error review to the instructions in Natale's case, we find no error requiring a new trial. Thus, we leave open the question of whether Griffin I, Anifowoshe, and our other waiver cases have drawn too confining a line by viewing affirmative approval so expansively as to include "no objection" in response to a trial court's inquiry. And neither do we address today whether Rule 30(d) requires the more searching analysis used by other circuits that dives into the subjective motivations of counsel, hoping to discern whether strategy or inadvertence motivated the affirmative approval. Finally, we express no opinion on whether the erroneous instructions in this case present the interests of justice that require our consideration notwithstanding any waiver. In short, when reviewing the jury instructions under plain error as Natale asks of us, we see no reason to vacate his conviction.