First Circuit: Plain Error Standard Met When Trial Court Emphasized Erroneous Jury Instruction
by Dale Chappell
The trial court’s repeated inclusion of an erroneous element in the jury instructions amounted to a “plain error,” which led the U.S. Court of Appeals for the First Circuit to vacate the defendant’s conviction.
Jose Lattore-Cacho was convicted by a jury in U.S. District Court of one count of conspiracy in violation of 18 U.S.C. § 1962, a provision of the Racketeering Influenced Corrupt Organization (“RICO”) Act. To convict Latorre of violating RICO, the government had to prove he committed “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical,” and that those activities “affected interstate commerce.”
During oral jury instructions, the district court advised the jury that activity relating to firearms also constitutes racketeering activity. The court twice incorrectly told the jury that “firearms” constitute “racketeering activity” during the course of describing “a pattern of racketeering activity.” The court’s second mention of firearms was emphatic: “But you know from the summary I have given you up to now that the types of racketeering activity are the ones I just mentioned a minute ago, narcotics distribution, robberies, and carjackings, and of course firearms.” However, under RICO, firearms are not included as “racketeering activity.”
The government relied heavily on Latorre’s purported involvement with firearms during its case in chief.
Defense counsel did not object to the court’s oral jury instructions classifying firearms as racketeering activity for purposes of RICO. The jury was provided with written jury instructions that did not include firearms as constituting racketeering activity. The jury entered a general verdict convicting Latorre of RICO conspiracy, not specifying which of his alleged activities violated the act. The court sentenced him to 10 years in prison. Latorre appealed.
The First Circuit stated the issue was “whether the ailing instruction so infected the entire trial that the resulting conviction violates due process.” Jury instructions may violate due process if they relieve the government of its obligation to prove beyond a reasonable doubt every element of the offense, the Court explained.
Because Latorre did not object to the erroneous jury instruction at trial, the Court observed he must show that it amounted to “plain error.” In order to satisfy that “heavy burden,” Latorre had to show (1) an error occurred, (2) the error was obvious, (3) the error affected his substantial rights, and (4) the error impaired the integrity of the court proceedings, the Court instructed. “The road to success is rather steep” under plain error, the Court cautioned, and reversal is “granted sparingly.”
The key in this case, the Court said, was the third prong. The issue is whether the faulty jury instructions affected Latorre’s substantial rights, i.e., whether “the outcome of the case would likely have changed had the erroneous instruction not been given.”
The appellate court rejected the government’s argument that the trial court’s inclusion of firearms in the instructions was “isolated” and “fleeting.” “It is hard to credit that description,” the Court said, because the trial court “expressly described firearms as racketeering activity not once, but twice.” Furthermore, the reference to firearms was not merely in passing or a slip of the tongue; the court emphasized them, instructing that “firearms” were “of course” “racketeering activity.”
The Court noted that the trial court did not issue any curative statement in an effort to correct the misstatement of law during the oral jury instructions. The government argued that the written jury instructions, which set forth the law correctly, were sufficient to address any concerns regarding the oral instructions. The appellate court flatly rejected that argument. It pointed out that it had spoken to the issue in an earlier case where it announced “we would hesitate to rely on written instructions alone as a basis for concluding that the jury was not likely to be misled by an incorrect oral instruction.”
The Court then reviewed the record to determine whether the evidence was such that Latorre would have been convicted even in the absence of the jury instruction in question. It determined that “the record reveals no basis for so concluding….”
Accordingly, the First Circuit held that Latorre met the plain error standard and thus vacated his conviction.
This decision is required reading for anyone with an unpreserved challenge to jury instructions. The Court itself recognized the rarity of the case, writing “however rare hen’s teeth may be, this is the rare … case of an unpreserved challenge to a clear and obvious instructional error that meets the plain error standard.”
See: United States v. Latorre-Cacho, 874 F.3d 299 (1st Cir. 2017).
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Related legal case
United States v. Latorre-Cacho
|Cite||874 F.3d 299 (1st Cir. 2017)|