Today's post looks at the latest opinion in a series of recent opinions that discuss splits in authority over appropriate standards of review (see here and here). Last Friday in United States v. Powers, the First Circuit addressed an intercircuit conflict involving the appropriate standard for reviewing a district court's refusal to give an "advice-of-counsel" jury instruction in a criminal case.
When a defendant's argument at trial boils down to, "My attorney advised me that it was okay to proceed, so I did.", a defendant may ask the court to give the jury such an instruction. When the court's response is "No.", should an appellate court review the lower court's determination de novo or apply an abuse-of-discretion standard? As the following paragraph from Powers demonstrates, it depends:
These same rules are used for the defense of good faith reliance on the advice of counsel. See United States v. Christopher, 142 F.3d 46, 55 (1st Cir. 1998). We review these determinations de novo. See United States v. Howard, 687 F.3d 13, 18 (1st Cir. 2012); United States v. Sánchez-Bérrios, 424 F.3d 65, 76 (1st Cir. 2005); Rodriguez, 858 F.2d at 812. This is different from the abuse of discretion standard in some other circuits. See, e.g., United States v. Bush, 626 F.3d 527, 538-39 (9th Cir. 2010). There is no claim the good-faith instruction was flawed.
You can read the full opinion here: United States v. Powers, Nos. 11-2295 & 11-2359 (1st Cir. Dec. 14, 2012).