and Submitted March 7, 2019 Portland, Oregon
from the United States District Court, No. 3:14-cr-00227-MO-1
for the District of Oregon Michael W. Mosman, Chief District
Michael R. Levine (argued), Levine & McHenry LLC,
Portland, Oregon, for Defendant-Appellant.
S. Ratcliffe (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney's Office,
Portland, Oregon; for Plaintiff-Appellee.
Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges,
and Eduardo C. Robreno, [*] District Judge.
a conviction and remanding for a new trial, the panel held
that it is bound by the holdings in Guam v. Marquez,
963 F.2d 1311 (9th Cir. 1992), that a trial court does not
satisfy its duty to instruct jurors in a criminal case just
by providing jurors with a set of written instructions to use
during deliberations, and that when a trial court abdicates
its responsibility to charge the jury orally as to the
elements of the charged crimes, it commits structural error.
panel held that because the trial judge in this case
delivered no such oral charge, the requisites for reversing
on plain error review have been met.
Judge Graber wrote that the error was harmless in this case
in which the court gave the jury written instructions, the
final versions of which defendant concedes were correct; the
court orally instructed the jury to read those instructions;
the jurors confirmed that they had read the written
instructions; and the evidence of guilt was overwhelming.
BERZON, CIRCUIT JUDGE
circuit held nearly thirty years ago that oral instructions
to the jury as to the law they must apply are an essential
feature of a jury trial. Guam v. Marquez, 963 F.2d
1311, 1314–15 (9th Cir. 1992). A trial court does not
satisfy its duty to instruct jurors in a criminal case just
by providing those jurors with a set of written instructions
to use during deliberations. Id. We further
determined that when a trial court abdicates its
responsibility to charge the jury orally as to the elements
of the charged crimes, it commits structural error.
Id. at 1315–16. We are bound by those holdings
and so reverse the conviction in this case.
February 2016, Cesar Becerra was tried on six counts for
crimes related to the possession and distribution of heroin
and methamphetamine. During the final
pretrial conference, the district court told the parties that
it would provide the jurors with written copies of the jury
instructions at the beginning of the trial. The court
explained that it would confirm with the jurors at some point
during the trial that they had in fact read the provided
instructions. So long as the instructions were not
subsequently changed, the court said, it would not read the
instructions aloud to the jurors. Neither party objected to
this planned course of action.
district court implemented its plan largely as announced. On
the morning of the first day of trial, each juror was
provided a set of draft jury instructions. These
instructions, which largely followed our circuit's model
jury instructions, included explanations of the substantive
offenses and definitions of key terms, such as
"reasonable doubt, " "possession, " and
"knowingly." See Model Crim. Jury Instr.
9th Cir. §§ 1.5, 1.7, 1.8, 3.1–3.2,
3.5–3.9, 3.11, 3.14–3.15, 3.18, 4.1,
4.8–4.9, 4.14, 4.17, 5.7, 6.10, 7.1, 7.3– 7.6,
8.72, 9.15–9.16, 9.18 (2010). The court told the jurors
to read the provided instructions: "I'm not going to
give you a quiz on" the instructions, the court said,
"but you will be asked if you read it. So please read it
gave them the written instructions, the court read aloud to
the jurors a few preliminary instructions, which, as the
court explained, were "geared to . . . telling you a
little bit about your job as jurors." These instructions
included, for example, an explanation of the jurors' duty
to deliberate, a brief, non-technical explanation of the
charges being tried, and an explanation of what is (and what
is not) evidence. These preliminary oral instructions did not
include any explanation of the elements of the three crimes
charged in the six counts, or otherwise guide the jurors as
to the substantive law they were expected to apply. After a
recess, the trial commenced with the parties' opening
close of evidence on the next trial day, the district court
retrieved the draft jury instructions from those jurors who
had brought the instructions back to the courthouse and
provided each juror with a set of final instructions to use
during deliberations. The court then asked Juror No. 1 in
open court: "[H]ave you read each and every one of [the
draft] instructions . . . ?" Juror No. 1 said,
"Yes." The court continued: "Two?",
"Three?", and so on through "Twelve?" and
"Our alternate?" Each juror, in turn, responded:
"Yes." No further follow-up was conducted by either
the court or the parties to assess whether the jurors had
fully read and understood the draft instructions they had
the draft and final instructions, one instruction was added
and two were modified. Specifically, the court (1) added an
instruction explaining how the jurors should treat evidence
of acts not charged; (2) added a sentence to the instruction
explaining how jurors should evaluate the evidence of a
cooperating witness; and (3) removed a sentence in an
instruction on the lesser-included offense of possession of a
controlled substance. The court notified the jurors of these
changes and read the full text of the three new and modified
instructions aloud. The district court did not after the
close of evidence read aloud any of the remaining
twenty-seven instructions, or otherwise orally instruct the
jurors as to the substantive law.
parties then delivered closing arguments to the jurors. The
next morning, the jurors returned to deliberate. They reached
a guilty verdict on all six counts that same day.
March 2017, the district court sentenced Becerra to 60 months
of incarceration. Becerra timely appealed.
principal argument on appeal is that the district court erred
by not reading the jury instructions aloud to the
jury. Becerra did not object in the
district court to the plan to provide primarily written
instructions or to the implementation of that plan. We
therefore review the failure to provide an oral jury charge
for plain error. United States v. Depue, 912 F.3d
1227, 1233 (9th Cir. 2019) (en banc). Under plain error
review, we may reverse a district court's ruling only if
(1) there was error, (2) the error was plain, (3) the error
affected substantial rights, and (4) the error seriously
affected the fairness, integrity, or public reputation of
judicial proceedings. Id. at 1232.
first two requirements are clearly met. We disapproved an
essentially similar trial procedure in Marquez. The
trial court in Marquez, like the district court
here, never orally instructed the jurors as to the charged
crimes. 963 F.2d at 1312. Instead, the jurors in
Marquez were provided, after closing arguments, with
a set of written jury instructions that included "the
elements of the crimes" being tried and the definitions
for terms "mentioned in the description[s] of the
offense[s] . . . ." Id. at 1312–13.
Before sending the jurors to deliberate, the trial court in
Marquez advised the jurors that it had provided them
with written jury instructions. It then told the jurors:
"You will have [the instructions] with you, so there is
no need of reading it to you." Id. at 1313.
held that it was error for the trial court not "to
instruct the jury on the elements of the [charged] offense
before submitting [the] matter to the jury."
Id. at 1314. Just providing jurors with written
instructions delineating the elements of the charged offenses
was not enough. Id. at
1315–16. Relying on the Third Circuit's decision in
United States v. Noble, 155 F.2d 315 (3d Cir. 1946),
Marquez reasoned that an oral jury charge is
necessary to ensure that "each member of the jury has
actually received the instructions." 963 F.2d at 1314 (quoting Noble,
155 F.2d at 318).
holding that an oral charge is a necessary feature of our
criminal trial process reflects the critical importance of
communicating effectively to jurors in detail the legal
principles governing their deliberations. Jurors in our
criminal justice system are delegated the awesome
responsibility of determining the innocence or guilt of a
defendant put before them. A determination of guilt can, of
course, severely restrict a defendant's physical liberty
for years or decades. And the jury's decision will
generate a cascade of other consequences: A citizen found
guilty often is unable to participate in our democratic
system by voting, see, e.g., Wash. Const. art. VI,
§ 3; Or. Rev. Stat. § 137.281(3)(d); a non-citizen
may lose her ability to remain in the country, see,
e.g., Martinez v. Mukasey, 551 F.3d 113, 118
n.3 (9th Cir. 2008).
jurors are assigned such a critical role in our criminal
justice system, "[i]t is essential to the administration
of justice that a jury scrupulously follow the law as given
to it by the judge, and to that end his instructions should
be clear and firmly fixed in the mind of each juror."
Babson v. United States, 330 F.2d 662, 666 (9th Cir.
1964). Since before the founding of our Republic, courts have
universally met the need to educate jurors by orally advising
jurors "in the presence of the parties, the counsel, and
all others . . . in matters of law arising upon th[e]
evidence." 3 William Blackstone, Commentaries
*375; see also United ...