United States v. Cesar Becerra ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30050
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-00227-MO-1
CESAR ANTONIO BECERRA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief District Judge, Presiding
Argued and Submitted March 7, 2019
Portland, Oregon
Filed September 23, 2019
Before: Susan P. Graber and Marsha S. Berzon, Circuit
Judges, and Eduardo C. Robreno, * District Judge.
Opinion by Judge Berzon;
Dissent by Judge Graber
*
The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
2 UNITED STATES V. BECERRA
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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BECERRA 3
COUNSEL
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.
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
1
Specifically, Becerra proceeded to trial on the following charges:
(1) possession with intent to distribute heroin in June 2014;
4 UNITED STATES V. BECERRA
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,
(2) possession with intent to distribute heroin in February 2014;
(3) possession of a 9 mm caliber firearm in furtherance of a drug-
trafficking crime in February 2014; (4) possession of a .22 caliber
firearm in furtherance of a drug-trafficking crime in February 2014;
(5) possession with intent to distribute heroin in December 2012; and
(6) distribution of heroin in December 2011.
UNITED STATES V. BECERRA 5
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.
6 UNITED STATES V. BECERRA
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”
2
Becerra also appeals the district court’s denial of his motion to
suppress. We affirm the district court’s decision to deny the motion to
suppress in a memorandum disposition filed contemporaneously with
this opinion.
UNITED STATES V. BECERRA 7
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).
3
Marquez at one point says that “all jury instructions must be read
aloud to the jury in the presence of counsel and the defendant.” 963 F.2d
at 1314–15 (emphasis added). This summary may overstate the holding
of the case. Elsewhere in the opinion, Marquez states that the trial court
erred by not reading aloud “instructions defining the offense charged.”
Id. at 1314; see also id. at 1315. The difference does not matter here.
The trial court here did not read aloud any of the offense-defining
instructions nor most of the other instructions.
4
Marquez and Noble further reasoned that oral instructions are
necessary because “counsel and the defendant [are] entitled to hear the
instructions in order that they may, if they are incorrect, object to them
and secure their prompt correction by the trial judge.” Id. at 314 (quoting
Noble, 155 F.2d at 318). This secondary rationale lacks persuasive force.
As long as jury instructions are provided in written form to the parties
8 UNITED STATES V. BECERRA
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
sufficiently in advance, objections can be made well before instructions
are distributed to the jurors.
Federal Rule of Criminal Procedure 30 has long required that trial
courts provide the parties with an opportunity to make specific
objections to the jury instructions; that opportunity must take place “out
of the jury’s hearing and, on request, out of the jury’s presence.” Fed.
R. Crim. P. 30(d). In practice, district courts comply with this rule by
providing the parties an opportunity to review and to object to the
planned instructions before they are read to the jury. 2A Fed. Prac. &
Proc. Crim. § 484 (4th ed.); see also United States v. Loya, 807 F.2d
1483, 1492 (9th Cir. 1987); Las Vegas Merchant Plumbers Ass’n v.
United States, 210 F.2d 732, 744 (9th Cir. 1954).
UNITED STATES V. BECERRA 9
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
States v. Robinson, 724 F.3d 878, 887 (7th Cir. 2013); Noble,
155 F.2d at 317 n.1 (quoting Thomas M. Cooley,
Constitutional Limitations *321 (1st ed. 1868)).
There are excellent reasons this feature of our trial
process endures. For one, many jurors may not adequately
comprehend written instructions. It is no secret that jury
instructions are often written in language more suitable for
lawyers than laypersons. See, e.g., Jonathan Barnes,
Tailored Jury Instructions: Writing Instructions that Match
a Specific Jury’s Reading Level, 87 Miss. L.J. 193, 195
(2018); Prentice H. Marshall et al., Pattern Criminal Jury
Instructions: Report of the Federal Judicial Center
Committee to Study Jury Instructions, at vii, 79–83 (1982);
Phil H. Cook, Instructionese: Legalistic Lingo of Contrived
Confusion, 7 J. Mo. B. 113 (1951). Written instructions can
be especially impenetrable for those jurors with limited
reading comprehension skills. 5 See Laurence J. Severance
et. al., Toward Criminal Jury Instructions that Jurors Can
Understand, 75 J. Crim. L. & Criminology 198, 224 (1984);
Robert P. Charrow & Veda R. Charrow, Making Legal
5
This group of jurors is not insignificant. Fourteen percent of
American adults have less than basic prose literacy; these adults range
from the nonliterate to those with the ability to “locat[e] easily
identifiable information in short, commonplace prose texts.” Nat’l Ctr.
for Education Statistics, A First Look at the Literacy of America’s Adults
in the 21st Century 2–4 (2006). Another 29 percent have only basic
prose literacy—in other words, can “read[] and understand[] information
in short, commonplace prose texts.” Id. at 3. Only 13 percent of
American adults have the skills necessary to “read[] lengthy, complex,
abstract prose texts.” Id.
10 UNITED STATES V. BECERRA
Language Understandable: A Psycholinguistic Study of Jury
Instructions, 79 Colum. L. Rev. 1306, 1320–21 (1979). And
even if a jury is comprised of an unusually educated cross-
section of the community, many of us at times succumb to
the temptation to glaze over a long paragraph of text or flip
over a few pages of a lengthy stack of papers. When the
instructions are read orally, tonal inflection can make the
content of the instructions more accessible, as well as
discourage the “tuning out” common when reading dense
material. Oral instruction in the formal courtroom setting
thus assures that jurors are exposed to the substance of the
essential instructions by at least one sensual route.
The oral charge also performs a second, signaling
function that cannot be replaced by a printout or a pamphlet.
Jury instructions are not the judicial equivalent of a car
manual or a cookbook. When an enrobed judge orally
charges the jury, the jurors are impressed with the fact that
they have been entrusted with the power to decide the
defendant’s fate. This oral, public ritual helps ensure that
“jurors . . . recognize the enormity of their task and . . . take
[that task] seriously.” Nancy S. Marder, Bringing Jury
Instructions into the Twenty-First Century, 81 Notre Dame
L. Rev. 449, 465 (2006). By analogy, reading a sermon is
not the same as hearing it read in church or synagogue by a
pastor or priest or rabbi. If it were, religious leaders would
just hand out the sermons and end the services early.
For these reasons, the historic practice of oral jury
instruction remains central to the fairness of jury trials. That
conclusion does not mean that procedures for instructing
juries have remained static—or should. Additions to oral
instructions have enhanced the likelihood that jury
instructions will effectively communicate to jurors the legal
principles governing their critical task. See id. at 475–82.
 UNITED STATES V. BECERRA 11
For example, pattern jury instructions, now routinely
promulgated and updated, originated in the early 20th
century and became widely used in the 1960s. 6 See Robert
G. Nieland, Assessing the Impact of Pattern Jury
Instructions, 62 Judicature 185, 185–87 (1978). Also,
although the use of written jury instructions was once a
rarity, courts now often supplement oral jury instructions
with written ones, giving them to jurors to read
contemporaneously with the oral instructions or to take to
the jury room after the oral charge. See Cal. Penal Code
§§ 1093(f), 1137 (providing jurors with a right to request
written instructions); Ninth Circuit Jury Instruction
Committee, Manual of Model Criminal Jury Instructions
§ 3.1 (2010) (“A copy of these instructions will be available
in the jury room for you to consult.”); see also William W.
Schwarzer, Communicating with Juries: Problems and
Remedies, 69 Calif. L. Rev. 731, 756–57 (1981). Written
instructions are mandatory in some jurisdictions. See, e.g.,
Or. Rev. Stat. § 136.330 (1); Or. R. Civ. P. 59(B); Wash.
Sup. Ct. Civ. R. 51(h). We have no doubt that there is room
for more useful innovation as to both how jury instructions
are drafted and how they are communicated to the jurors. 7
6
As another example, Federal Rule of Criminal Procedure 30 was
modified in 1987 to allow district courts to charge the jury either before
or after closing arguments. See Fed. R. Crim. P. 30 Advisory
Committee’s Note to 1987 Amendment.
7
Scholars, judges, and lawyers have long recognized that jurors far
too often decide cases without an adequate understanding of the law they
are required to apply. See, e.g., United States v. Cohen, 145 F.3d 82, 93
(2d Cir. 1942) (Hand, J.); Nancy S. Marder, Bringing Jury Instructions
into the Twenty-First Century, 81 Notre Dame L. Rev. 449, 454–58
(2006); Schwarzer, Communicating with Juries: Problems and
Remedies, supra; David U. Strawn & Raymond W. Buchanan, Jury
Confusion: A Threat to Justice, 59 Judicature 478, 480–81 (1976); Wylie
A Aitken, Comment: The Jury Instruction Process—Apathy or
12 UNITED STATES V. BECERRA
But even as the exact form of a trial court’s jury charge has
evolved, there has always been a bedrock recognition that
the trial court must orally charge the jury before
deliberations commence.
Notably, the government in this case does not contend
otherwise. It recognizes that, as Marquez makes clear, the
district court in this case erred by not reading the essential
jury instructions aloud. Rather, the government’s central
contention is that Marquez is not here binding as to its
second holding—that the failure of the district court to read
jury instructions aloud to the jurors in open court is structural
error and so not subject to harmless error analysis. We turn
to that contention.
B
Contrary to the government’s submission, Marquez is
binding on us not only with regard to its substantive holding
as to the necessity of oral jury instructions but also as to its
second holding—that the district court committed structural
error by failing to read an oral charge to the jurors.
Marquez’s conclusion that the omission of an oral charge
is structural error rests primarily on its observation that an
appellate court cannot meaningfully assess whether failure
to provide oral instructions impacted “the jury’s
performance of its duties” in a particular trial. Id.at 1315–
16. In Marquez, “the record [was] silent regarding whether
any of the jurors read the instructions that were submitted to
them.” Id. at 1316. Here, there was an attempt to ascertain
Aggressive Reform, 49 Marquette L. Rev. 137, 137 n.2 (1965); Robert
Winslow, The Instruction Ritual, 13 Hastings L. J. 456, 469–70 (1962).
UNITED STATES V. BECERRA 13
that the jurors read the instructions provided to them. 8 But
we do not assess whether an error is structural on a case-by-
case basis. “[A] constitutional error is either structural or it
is not.” Neder v. United States, 527 U.S. 1, 14 (1999). “An
error can count as structural even if the error does not lead
to fundamental unfairness in every case.” Weaver v.
Massachusetts, ___ U.S. ___, 137 S. Ct. 1899, 1908 (2017).
The dissent takes issue with this recent Supreme Court
pronouncement, arguing that “deciding whether a particular
error is properly labeled ‘structural’ entails a close look at
specifics.” Of course, we must determine on a case-by-case
basis whether there was an error, and, if so, whether that kind
of error is structural. Failure to conduct a trial in public
absent any factual findings is error, Waller v. Georgia,
467 U.S. 39, 45–46 (1984), and structural, see id. at 49–50;
conducting a trial or hearing after making adequate factual
findings is not error at all. Id. at 45. Omission of a single
element of the charged offense from the jury instructions is
error, but not structural error, Neder, 527 U.S. at 8–11;
omission of the burden of proof from those instructions is
error, and structural, see id. at 11. And in some instances
where a structural error has occurred, the relief required to
cure that error may not result in a new trial for the defendant.
Waller, 467 U.S. at 49–50. But none of these caveats means
8
We note that the trial judge’s questioning of the jurors was
perfunctory, and the jurors were not placed under oath. Moreover, the
jurors’ “yes” answers do not establish that they read the instructions
carefully enough to comprehend their essentials. A simple “yes” also
does not answer: Did the juror read the instruction alone or with one or
more persons? Did the juror read the instructions in one or more sittings?
Did the juror consult dictionaries or other legal sources to help him or
her understand any terms? Did the juror discuss the instructions with
other jurors or other persons? Did the juror read the instructions while
engaged in other activities such as watching television?
14 UNITED STATES V. BECERRA
that once we identify an error that is structural in kind—here,
failure to instruct the jury orally—we reconsider whether
that error should be deemed structural in the specific case
before us.
Of course, there may be some cases where it is hard to
discern whether the trial court acted in a manner that we have
already deemed structural error, or whether the trial court
committed error that is related but distinct in kind. Cf.
Johnson v. United States, 520 U.S. 461, 469 (1997). This is
not that case. The error held structural in Marquez was the
failure of the judge orally “to read the elements of the crime
to the jury,” 963 F.3d at 1315 (capitalization modified); it
was not the failure to ascertain whether the jury read written
instructions provided to it in lieu of oral instruction.
Thus, under Marquez, the failure to instruct the jury
orally was structural error absent some intervening higher
legal authority “clearly irreconcilable” with Marquez.
Gammie, 335 F.3d at 900; see also United States v.
Xinidakis, 598 F.3d 1213, 1216 (9th Cir. 2010). There is no
such authority.
No en banc case or Supreme Court case has held that the
failure to instruct the jury orally is not structural error. And
the overall reach of the structural error doctrine has remained
largely the same since Marquez was decided in 1992. Then
and now, “[t]he purpose of the structural error doctrine [has
been] to ensure insistence on certain basic, constitutional
guarantees that should define the framework of any criminal
trial.” Weaver, 137 S. Ct. at 1907. The “defining feature”
of such error, is that it “‘affect[s] the framework within
which the trial proceeds,’ rather than being ‘simply an error
in the trial process itself.’” Id. (quoting Arizona v.
Fulminante, 499 U.S. 306, 310 (1991)) (alteration in
UNITED STATES V. BECERRA 15
original). Marquez cited Fulminante. See 963 F.2d at 1315–
16.
Marquez’s reasoning is not irreconcilable with later case
law either. One of Marquez’s central premises for its
structural error holding—that the failure to provide any oral
instructions to the jurors is an error that as a practical matter
“precludes a harmless error analysis,” id. at 1316—is fully
compatible with post-Fulminante case law. The Supreme
Court in Weaver recently explained that a structural error
approach is appropriate for cases in which “the effects of the
error are simply too hard to measure,” making harmless error
review futile. 137 S. Ct. at 1908.
In sum, neither Marquez’s holding nor its reasoning is at
odds with now controlling structural error precedents. We
therefore remain bound by Marquez. The virtually complete
failure to instruct the jurors orally was structural error.
C
Even if we were not bound by Marquez, we would
nonetheless conclude that it is appropriate to categorize the
failure to charge jurors orally as structural error.
As the Court explained recently in Weaver, an error is
usually deemed structural for at least one of three broad
reasons, although “[i]n a particular case, more than one of
these rationales may be part of the explanation for why an
error is deemed to be structural.” Id. at 1908. First, an error
is structural if it “deprive[s] defendants of ‘basic protections’
without which ‘a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or
innocence,” Neder, 527 U.S. at 8–9 (quoting Rose v. Clark,
478 U.S. 570, 577–78 (1986)); see also Weaver, 137 S. Ct.
at 1908. Second, errors have been found structural where
16 UNITED STATES V. BECERRA
the effect of those errors are “necessarily unquantifiable and
indeterminate,” making a harmless error analysis
impossible. Neder, 527 U.S. at 11 (quoting Sullivan v.
Louisiana, 508 U.S. 275, 282 (1993)); see also Weaver,
137 S. Ct. at 1908. Finally, certain errors have been
considered structural where the “right at issue is not
designed to protect the defendant from erroneous conviction
but instead protects some other interest.” Weaver, 137 S. Ct.
at 1908; see also McKaskle v. Wiggins, 465 U.S. 168, 177,
n.8 (1984). Each of these rationales is implicated by the
failure to instruct the jury orally.
First, for the reasons discussed earlier, assuring that
jurors are generally aware of the law to be applied is a
protection without which a criminal trial cannot reliably
serve its function. When a trial court does not provide the
jurors with an oral charge, there has not “simply [been] an
error in the trial process.” Weaver, 137 S. Ct. at 1907
(quoting Fulminante, 499 U.S. at 310). The oral charge
serves both to ensure that jurors are aware of the correct law
and to instill in the jurors proper sense of respect for the
jury’s role in the criminal justice process. See supra at 8–
12. Without an oral jury charge, the court has omitted a
fundamental and ubiquitous feature of the criminal trial
framework—the equivalent of holding no voir dire before
selecting a jury, or holding the trial outside of public view.
See Waller, 467 U.S. at 49 n.9. Moreover, just as presidents
take the oath of office in public rather than by signing in
private a document containing the oath, so as to convey that
the president’s duty is of profound importance, the oral
delivery of jury instructions in open court, by a judge
wearing a robe, sitting before the prosecution, defendants,
the jury, and the courtroom audience, conveys to the jurors
that the jury’s responsibility is of profound importance, as it
UNITED STATES V. BECERRA 17
indeed is. 9 That recognition as well is essential to the
functioning of the jury system.
Second, the impact on the jurors’ verdict of a failure to
instruct jurors orally is “necessarily unquantifiable and
indeterminate.” Neder, 527 U.S. at 11 (quoting Sullivan, 508
U.S. at 282). Because the court’s failure to instruct
implicates “all of the jury’s findings,” Sullivan, 508 U.S.
at 281, whether the jurors would have ruled the same way
had they been orally instructed cannot meaningfully be
determined after the fact. To assess harmless error in this
circumstance, a “reviewing court can only engage in pure
speculation—its view of what a reasonable jury would have
done.” Id. Even where the evidence of guilt is
overwhelming, the entire premise of the jury trial system is
that jurors, not judges, are entrusted with determining
whether to believe the evidence presented and then apply the
law to the facts determined to be true. Where, as here, the
lapse as to assuring the jurors’ performance of its task is not
partial but complete, an after-the-fact appraisal simply
amounts to a denial of the constitutionally guaranteed trial
by jury. 10
9
It is worth noting that “in a jury trial . . . a verdict . . . must be
rendered by the jury in open court . . . in order to become final.” Gouveia
v. Espinda, 926 F.3d 1102, 1115 (9th Cir. 2019) (quoting Harrison v.
Gillespie, 640 F.3d 888, 898 (9th Cir. 2011)). This court has recognized
that rendering a verdict in open court cannot be equated with writing that
same verdict on a piece of paper behind closed doors and delivering the
document to the judge. Similarly, the act of reading jury instructions at
home is not equivalent to hearing a judge read those instructions aloud
in open court.
10
By contrast, the Court held in Neder that the omission of a single
element of the charged offense from the jury instructions was not
structural error, because in that circumstance, the failure “did not
18 UNITED STATES V. BECERRA
Third, without an oral charge, a key aspect of the trial is
hidden from public observation, and the solemnity of the
occasion for the public is fatally compromised. In this
respect, the error is directly connected to denial of the right
to a public trial and so implicates the third Weaver
category—protection of “some other interest.” 137 S. Ct.
at 1908. Here, that interest is the involvement of the
public—including the media—in viewing the important
aspects of trials, including the charge to the jury.
In short, all three of Weaver’s rationales for holding an
error is structural are present here. Oral instruction as to the
legal framework the jury must apply is a “basic[]
constitutional guarantee[]” that must occur in all criminal
trials, and failure to so instruct a jury is structural error. Id.
at 1907.
D
The third requisite of plain error review is necessarily
met where the error at issue is structural. See United States
v. Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015) (“a
finding of structural error satisfies the third prong of the
Olano plain-error test” (quoting United States v. Recio,
371 F.3d 1093, 1101 (9th Cir. 2004))). Cf. United States v.
Chavez-Cuevas, 862 F.3d 729, 734 (9th Cir. 2017), cert.
denied, 138 S. Ct. 1179 (2018) (stating that when an error
“implicates a structural right, the error affects substantial
rights, and undermines the fairness of a criminal proceeding
as a whole” (citations omitted)).
‘vitiat[e] all of the jury’s findings.” 527 U.S. at 11 (quoting Sullivan,
508 U.S. at 281).
UNITED STATES V. BECERRA 19
The failure to instruct the jury orally in this case also
“seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings,” satisfying the fourth
element necessary to reverse under plain error review.
Depue, 912 F.3d at 1232. The same reasoning that justifies
categorizing this error as structural supports this conclusion.
See supra pp. 15–18. It is impossible to know whether the
jury would have come to the same conclusion had the judge
orally instructed them as to the elements of the charges.
Such uncertainty undermines the fairness and integrity of
these judicial proceedings. In addition, where, as here, there
is definitive precedent precluding the district court’s
conduct, the “flagrant nature of the district court’s error . . .
seriously affects the public reputation of judicial
proceedings.” United States v. Hammons, 558 F.3d 1100,
1105 (9th Cir. 2009) (citations omitted) (holding a district
court’s failure to state its reasoning for a sentence on the
record, as required by established Supreme Court and Ninth
Circuit law, to be plain error). Finally, as noted earlier,
assuring public awareness of the charge to the jury and
promoting the dignity and formality of a critical stage of the
criminal trial are among the underpinnings of the oral
instruction requirement. These values rest on the very same
concerns for the “fairness, integrity, [and] public reputation
of judicial proceedings” that comprise the fourth plain error
factor. Depue, 912 F.3d at 1232.
For these reasons, we exercise our discretion to notice
the plain error committed by the district court in this case.
III
Under Marquez, it is structural error not to instruct the
jury orally as to the entire substantive law the jury must
apply. Because the trial judge here delivered no such oral
charge, the requisites for reversing on plain error review
20 UNITED STATES V. BECERRA
have been met. We therefore reverse the conviction and
remand for a new trial.
REVERSED AND REMANDED.
GRABER, Circuit Judge, dissenting:
I respectfully dissent. The district court erred by failing
to read all the instructions to the jury aloud. But the error
was clearly harmless in this particular case. The court gave
the jury written instructions—the final versions of which
Defendant concedes were entirely correct—and orally
instructed the jury to read those instructions. The jurors
confirmed—individually and in open court—that they had in
fact read the written instructions, and the evidence of
Defendant’s guilt was overwhelming.
Neither the majority nor Defendant refutes that analysis.
Instead, the majority holds that the instructional error falls
into the narrow class of errors deemed “structural” and that,
accordingly, we may not assess harmlessness. I disagree that
the error in this case is properly classified as structural.
Accordingly, I would hold that the error did not affect
Defendant’s substantial rights. Additionally, even assuming
that the error affected his substantial rights, I would hold that
this case does not warrant the exercise of our discretion
because the error did not seriously affect the fairness,
integrity, or public reputation of the trial.
Defendant did not object to the district court’s method of
instructing the jury, so we review for plain error only.
United States v. Olano, 507 U.S. 725 (1993). “Plain error is
(1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Depue, 912 F.3d 1227, 1232 (9th
UNITED STATES V. BECERRA 21
Cir. 2019) (en banc) (internal quotation marks omitted). If
those conditions are met, we have “the discretion to grant
relief so long as the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
(internal quotation marks omitted). We held in Guam v.
Marquez, 963 F.2d 1311, 1314–15 (9th Cir. 1992), that “all
jury instructions must be read aloud to the jury in the
presence of counsel and the defendant.” So the error here
was plain. But the error here neither affected Defendant’s
substantial rights nor warrants discretionary relief.
A. Substantial Rights and “Structural” Error
The Supreme Court repeatedly has reserved the question
whether a “structural” error necessarily affects a defendant’s
substantial rights. See United States v. Marcus, 560 U.S.
258, 263 (2010) (reserving the question and citing four
previous cases that have reserved the question). The Court’s
recent jurisprudence strongly suggests to the contrary:
Despite its name, the term “structural error”
carries with it no talismanic significance as a
doctrinal matter. It means only that the
government is not entitled to deprive the
defendant of a new trial by showing that the
error was “harmless beyond a reasonable
doubt.” Chapman v. California, 386 U.S. 18,
24 (1967). Thus, in the case of a structural
error where there is an objection at trial and
the issue is raised on direct appeal, the
defendant generally is entitled to automatic
reversal regardless of the error’s actual effect
on the outcome.
Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017)
(emphases added) (some internal quotation marks omitted).
22 UNITED STATES V. BECERRA
But even assuming that structural errors necessarily affect
substantial rights, the error here was not structural.
“[M]ost constitutional errors can be harmless.” Arizona
v. Fulminante, 499 U.S. 279, 306 (1991). The Supreme
Court has recognized only “a very limited class of errors” as
“structural.” United States v. Davila, 569 U.S. 597, 611
(2013) (quoting United States v. Marcus, 560 U.S. 258, 263
(2010)). The requirement that all jury instructions be given
orally is not among them. We labeled the error in Marquez
“structural.” But the sole reason for applying that label in
Marquez leads necessarily to the opposite conclusion here.
We held that the instructional error in Marquez was
“structural” for one simple reason: “the record is silent
regarding whether any of the jurors read the instructions that
were submitted to them,” so we could not assess
harmlessness. 963 F.2d at 1316. 1
Here, by contrast, the district court orally instructed the
jury to read the written instructions, and each juror
confirmed in open court that, in fact, he or she had read the
instructions. The record thus establishes that the jury
actually received the instructions. To conclude otherwise,
not only would we have to put aside our ordinary
presumption that jurors follow their instructions, e.g., United
States v. Smith, 831 F.3d 1207, 1215 (9th Cir. 2016), but we
also would have to conclude that a juror affirmatively lied to
the judge in open court. Nothing in the record supports
either contention.
1
The defendant in Marquez also objected to the procedure. 963 F.2d
at 1313. Defendant here did not. That distinction also may matter under
Weaver, 137 S. Ct. at 1910.
UNITED STATES V. BECERRA 23
The majority acknowledges the foregoing analysis but
then reasons that “we do not assess whether an error is
structural on a case-by-case basis. ‘[A] constitutional error
is either structural or it is not.’ Neder v. United States,
527 U.S. 1, 14 (1999).” Maj. op. at 13. That reasoning fails
for two independent reasons.
First, it proves too much. Marquez plainly held that the
error was structural in that case solely because of the silence
of the record. If later Supreme Court cases such as Neder
have undermined that reasoning, then Marquez no longer
controls because it applied an outdated understanding of
whether an error is structural. Miller v. Gammie, 335 F.3d
889, 899–900 (9th Cir. 2003) (en banc).
Second, deciding whether a particular error is properly
labeled “structural” entails a close look at specifics. A
partial failure to instruct the jury is a non-structural error
unless the omitted instruction pertains to the burden of proof.
Neder, 527 U.S. at 8–15. A failure to conduct a trial in public
is structural error unless the trial court makes certain factual
findings. Weaver, 137 S. Ct. at 1909. A failure to conduct
a suppression hearing in public requires a new trial unless
the conclusion of a new suppression hearing is the same as
the conclusion reached at the original hearing. Waller v.
Georgia, 467 U.S. 39, 49–50 (1984).
Marquez did not hold that any failure to read aloud the
jury instructions is structural. Nor did it hold that any failure
to read aloud the instructions defining the offense is
structural. Instead, in deciding whether the error was
“structural,” Marquez asked one and only one question: did
the record reveal whether the jurors had read the written
instructions? Only after determining that the record was
silent on that question did Marquez hold that the error was
structural. That approach is consistent with, for example, the
24 UNITED STATES V. BECERRA
Supreme Court’s approach in Waller: the error requires a
retrial unless other circumstances obviate the need for a new
trial. Marquez thus held only that, when the record is silent
as to whether the jurors read the written instructions, the
instructional error is properly labeled “structural.” Here, by
contrast, the record is complete as to that critical inquiry and
demonstrates that the jurors did, in fact, read the written
instructions. Marquez therefore does not control.
The majority next sets aside Marquez and provides its
own reasons for concluding that the instructional error here
is properly labeled “structural.” Maj. op. at 15–18. None of
the reasons is persuasive. Because the court orally instructed
the jurors to read the written instructions and later put all
jurors on the spot to confirm that they had, in fact, read the
instructions, the proceedings were just as solemn as those in
which a court reads all the instructions aloud. (The court
read some of the instructions aloud.) The jury applied the
correct law, as all the instructions were correct. Many
people absorb information better in writing. Moreover, there
is no way to know whether jurors are listening when oral
instructions are given; some may be daydreaming or
worrying about a sick relative, for example. Indeed, we
know more in this case about the jurors’ attentiveness than
we know in most cases. Though instructions can sometimes
be difficult to follow, the written instructions in this case
were not. Nor were they especially numerous. Finally, the
written instructions are part of the public record, so the
proceedings were fully public.
I would hold that the error here was not “structural.”
Because the jury plainly received all the instructions,
because the instructions were correct, because there were no
other errors in the trial, and because the evidence of guilt was
overwhelming, I would hold that the error of not reading all
UNITED STATES V. BECERRA 25
the instructions aloud did not affect Defendant’s substantial
rights.
B. Our Discretion
Even if the error here is properly labeled “structural,” we
still must decide whether to exercise our discretion to order
a new trial. In Johnson v. United States, 520 U.S. 461, 468–
69 (1997), the defendant argued that an error affected her
substantial rights because the error was “structural.” The
Supreme Court expressly declined to decide whether the
error was structural because, even if the error were
structural, “it [would] not meet the final requirement of
Olano.” Id. at 469. It was clear that the error did not affect
the jury’s verdict, so there was “no basis for concluding that
the error seriously affected the fairness, integrity or public
reputation of judicial proceedings.” Id. at 470 (internal
quotation marks and brackets omitted); see United States v.
Cotton, 535 U.S. 625, 632–33 (2002) (applying the same
methodology of declining to decide whether an error was
structural because the error did not meet the fourth prong of
plain-error review); see also United States v. Promise,
255 F.3d 150, 161 (4th Cir. 2001) (en banc) (holding that,
under Johnson, a reviewing court may decline, under the
fourth prong of plain-error review, to reverse even a
structural error).
The same reasoning applies here. Even if the
instructional error here is properly labeled “structural,” the
error did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings because it had no
conceivable effect on the jury’s verdict. Accordingly, I
would affirm the judgment.