Where the law on an issue is unsettled at trial, but later clarified in the defendant's favor while his appeal is pending, should the appellate court review the lower court's decision for plain error using the law as it existed at the time of trial or time of appeal?
At the moment, the answer depends on what part of the country you're in. As Terry Baynes of Thomson Reuters reported yesterday, earlier this week in United States v. Escalante-Reyes, the Fifth Circuit sitting en banc joined five other circuits in ruling that claims of plain error are reviewed using the law at the time of appeal. No. 11-40632 (5th Cir. July 25, 2012) (en banc). Other circuits, however, disagree, producing the following split in authority:
A. Claims of Plain Error are Reviewed Using the Law at the Time of Appeal
- United States v. Farrell, No. 10-1140 (1st Cir. Feb. 17, 2012).
- United States v. Garcia, 587 F.3d 509 (2d Cir. 2009).
- United States v. Escalante-Reyes, No. 11-40632 (5th Cir. July 25, 2012) (en banc).
- United States v. Brown, No. 97-1618 (6th Cir. June 20, 2000) (unpublished).
- United States v. Cordery, 656 F.3d 1103 (10th Cir. 2011).
- United States v. Smith, 402 F.3d 1303 (11th Cir. 2005), vacated on other grounds, 545 U.S. 1125.
B. Claims of Plain Error are Reviewed Using the Law at the Time of Trial
- United States v. Turman, 122 F.3d 1167 (9th Cir. 1997).
- United States v. Mouling, 557 F.3d 658 (D.C. Cir. 2009).
Last month the Supreme Court agreed to resolve the circuit split during its next term, granting certiorari in United States v. Henderson, 646 F.3d 223 (5th Cir. 2011), cert. granted, No. 11-9307 (U.S. June 25, 2012). For more, check out my post from last December discussing the circuit split announced in Henderson here.
[*Hat tip to Howard Bashman over at How Appealing.]
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