Preserving an issue for appeal in the middle of trial can be tricky.
The lawyer who represents a person in the trial court normally has to preserve an issue for it to be heard by the court of appeals. If the lawyer doesn’t object when something improper happens, the appellate court is not going to be as eager to do something about it.
Yet the trial court lawyer is worrying about so many things that preservation of an appellate issue isn’t always the right thing to worry about. It’s much better, for example, to have a strong shot at a not guilty verdict than to have an issue that you may be able to win on appeal. And, in trial, there are so many balls to watch, that it may be rational for a lawyer to take his eye off of one of them for a moment. Which can make for a harder appeal.
To make things worse, a trial lawyer doesn’t have the same access to the law that a appellate lawyer, or court of appeals judge, has. It’s one thing to know the law after hours of research. It’s another to have to know it when an issue that you weren’t anticipating comes up.
So one can empathize with the lawyer who represented Calvin Brown. His case was recently decided by the Seventh Circuit in United States v. Brown.
Mr. Brown had pled guilty. He and his lawyer were sitting at counsel table* after having made their arguments about what the sentence should be. The district judge was announcing his sentence. He told Mr. Brown how much time he was going to spend in prison.
Then the judge told Mr. Brown that there was a mandatory minimum fine of $300 in his case for each count. Because he pled guilty to four counts, the sentencing court imposed a fine of $1200.
The problem, though, is that there is no mandatory minimum fine that applied to Mr. Brown’s case. The sentencing judge was just flat-out wrong.
Mr. Brown’s lawyer didn’t object. Because he didn’t object, the Seventh Circuit said that it reviewed his appeal on a plain error standard.
As an aside, plain error is a harder standard to meet. If a person in an appeal is complaining about what happened in the trial court, they would like the court of appeals to review the decision de novo. De novo review means the court of appeals thinks about the issue on it’s own, without reference to how the district court approached it.
Plain error, on the other hand, means that the person who is appealing has to convince the court of appeals that the district court was clearly wrong – it wasn’t a close call. If there’s a tie in the law, the tie goes against a person who is bringing the appeal.
As the Seventh Circuit explained it, a district court has plainly erred if,
Under plain error review, we must determine “(1) that error occurred; (2) that the error was plain; and (3) that the error affected the defendant’s substantial rights.”
Mr. Brown argued that the sentencing court was imposing its ruling – he didn’t have an opportunity to object.**
The Seventh Circuit would hear none of it. The court of appeals reviewed under plain error.
Happily, though, the appellate court found that making up a mandatory minimum fine that doesn’t exist is plain error.
As a result, Mr. Brown’s case will be remanded for reconsideration of the fine that the court imposed in this case. Now all he has to worry about is the 292 month sentence he has to serve.
* Presumably. This detail isn’t in the opinion, which is to say that I’m making it up.
** It isn’t clear from the opinion whether the fine issue came up in the hearing or only in the judgment that issued later. I think it would be odd to have it only in the judgment, and, likely, that would present other problems (that the judgment that the court signs and the announcement of the sentence shouldn’t vary too much), but, in any event, Mr. Brown did not object to either.