United States v. Olano
507 U.S. 725 (1993)
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Rule of Law:
For an appellate court to correct a forfeited error under the plain error standard of Federal Rule of Criminal Procedure 52(b), the defendant must show that there was (1) an error, (2) that was plain, and (3) that affected substantial rights, after which the court may exercise its discretion to correct the error only if it (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Facts:
- Guy W. Olano, Jr., and Raymond M. Gray served on the board of a savings and loan and were indicted for participation in a loan 'kickback' scheme.
- During their lengthy joint trial, all parties agreed to seat 12 regular and 2 alternate jurors.
- Near the end of the trial, the district court judge suggested allowing the two alternate jurors to attend deliberations but instructed them not to participate, asking the defendants' counsel to consider the proposal.
- In an ambiguous exchange the next day, Gray's counsel stated, 'We would ask they not,' but did not press the issue.
- On the final day of trial, counsel for a co-defendant affirmatively agreed to the procedure, and counsel for Olano and Gray remained silent and did not object.
- The court instructed all 14 individuals to retire to the jury room, but specifically instructed the two alternates that they 'must not participate in the deliberations.'
- One alternate juror was excused during deliberations, while the other remained in the room with the regular jurors until they returned a verdict.
Procedural Posture:
- Guy W. Olano, Jr., and Raymond M. Gray were indicted on federal charges in the U.S. District Court for the Western District of Washington, a federal trial court.
- Following a joint jury trial, both Olano and Gray were convicted on multiple charges.
- Olano and Gray, as appellants, appealed their convictions to the United States Court of Appeals for the Ninth Circuit, an intermediate federal appellate court.
- The Court of Appeals held that the presence of alternate jurors during deliberations constituted a reversible plain error, finding it 'inherently prejudicial.'
- The Court of Appeals vacated the defendants' remaining convictions.
- The United States, as petitioner, sought and was granted a writ of certiorari by the Supreme Court of the United States.
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Issue:
Does the unobjected-to presence of alternate jurors during jury deliberations, in violation of Federal Rule of Criminal Procedure 24(c), constitute a plain error under Rule 52(b) that an appellate court has authority to correct?
Opinions:
Majority - Justice O'Connor
No. The presence of alternate jurors during deliberations, where no objection was made, is not a plain error that the appellate court has authority to correct because the defendants failed to meet their burden of showing the error affected their substantial rights. To qualify as a plain error correctable under Rule 52(b), a forfeited error must be an 'error' that is 'plain' and 'affect[s] substantial rights.' In most cases, affecting substantial rights requires a showing of prejudice—that the error affected the outcome of the proceedings—and the burden of persuasion is on the defendant. Here, while the violation of Rule 24(c) was a plain error, the defendants made no specific showing that the alternates' presence was prejudicial, either by their participation or by 'chilling' the regular jurors' deliberations. The Court will not presume prejudice, as the trial court explicitly instructed the alternates not to participate, and jurors are presumed to follow instructions. Because the defendants failed to show the error affected their substantial rights, the Court of Appeals had no authority to correct it.
Dissenting - Justice Stevens
Yes. The violation of Rule 24(c) was a plain error affecting substantial rights, and the Court of Appeals did not abuse its discretion in correcting it. The presence of unauthorized persons during jury deliberations is a structural error that violates the cardinal principle of jury secrecy and undermines the integrity of the judicial system. Such errors affect 'substantial rights' regardless of whether a defendant can demonstrate specific prejudice because they harm the system as a whole and seriously affect the fairness and public reputation of judicial proceedings. While the decision to correct a plain error is discretionary, the Court of Appeals is better positioned to evaluate the need for firm enforcement of procedural rules in its circuit, and its decision to reverse the convictions was not an abuse of that discretion.
Concurring - Justice Kennedy
No. The majority correctly applies the plain error framework, which rightly places the burden on a defendant who failed to object. The practice of allowing alternates into deliberations is a serious deviation from the Federal Rules, and had a specific objection been made and overruled, it would be extremely difficult for the Government to prove the error was harmless under Rule 52(a). However, the operation of Rule 52(b) does not permit a party to withhold an objection and then demand automatic reversal on appeal. The distinction between a preserved error (Rule 52(a)) and a forfeited one (Rule 52(b)) is the critical difference in the burden of proof, which the defendants here failed to carry.
Analysis:
This decision establishes the modern, authoritative four-part test for plain error review, significantly clarifying the standard for correcting unpreserved errors in federal criminal cases. By distinguishing forfeiture (the mere failure to object) from waiver (the intentional relinquishment of a right), the Court solidified that forfeited errors are reviewable, but under a stringent standard. The ruling places a heavy burden of proving prejudice on the defendant, reinforcing the critical importance of making timely objections at trial and limiting appellate relief to only the most egregious and outcome-determinative unobjected-to errors.
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