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United States v. Becerra

United States Court of Appeals, Ninth Circuit

September 23, 2019

United States of America, Plaintiff-Appellee,
v.
Cesar Antonio Becerra, Defendant-Appellant.

          Argued and Submitted March 7, 2019 Portland, Oregon

          Appeal from the United States District Court, No. 3:14-cr-00227-MO-1 for the District of Oregon Michael W. Mosman, Chief District Judge, Presiding

          Michael R. Levine (argued), Levine & McHenry LLC, Portland, Oregon, for Defendant-Appellant.

          Thomas 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.

         SUMMARY[**]

         Criminal Law

         Reversing 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.

         The 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.

         Dissenting, 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.

          OPINION

          BERZON, CIRCUIT JUDGE

         Our 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.

         I

         In February 2016, Cesar Becerra was tried on six counts for crimes related to the possession and distribution of heroin and methamphetamine.[1] 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.

         The 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 tonight."

         When 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 statements.

         At the 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 been provided.

         Between 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.

         The 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.

         In March 2017, the district court sentenced Becerra to 60 months of incarceration. Becerra timely appealed.

         II

         Becerra's principal argument on appeal is that the district court erred by not reading the jury instructions aloud to the jury.[2] 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.

         A

         The 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.

         Marquez 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.[3] 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."[4] 963 F.2d at 1314 (quoting Noble, 155 F.2d at 318).

         Marquez's 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).

         Because 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 ...


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