United States Supreme Court to Decide Circuit Split In Case Involving Application of Plain Error Standard in Criminal Appeals:Henderson v. United States, No. 11-9307

by appealattorneylaw

Although the Court’s calendar is quiet for this Thanksgiving week, Florida’s criminal appeals attorneys might like to know that after Thanksgiving, the United States Supreme Court will be holding oral argument in a case involving the application of plain error standard in criminal cases where the law changes while the case is on appeal.  In Henderson v. United States, No. 11-9307, the question presented is:

Rule 52(b) of the Federal Rules of Criminal Procedure permits an appellate court to
correct a trial court’s “plain error” despite the lack of an objection in the trial
court.  In Johnson v. United States, 520 U.S. 461 (1997), this Court held that, when
the governing law on an issue is settled against the defendant at the time of trial
but then changes in the defendant’s favor by the time of appeal, “it is enough that
an error be ‘plain’ at the time of appellate consideration.”  Id. at 468.  Johnson did
not address the timing of plain-error review when the governing law on an issue is
unsettled at trial but clarified in the defendant’s favor while his appeal is pending.
The courts of appeals have split 5 to 3 on the question that Johnson left open. That
question, which this case squarely presents, is:
When the governing law is unsettled at the time of trial but settled in the
defendant’s favor by the time of appeal, should an appellate court reviewing for
“plain error” apply Johnson’s time-of-appeal standard, as the First, Second, Sixth,
Tenth, and Eleventh Circuits do, or should the appellate court apply the Ninth
Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have

Happy Thanksgiving!