Interesting Ninth Circuit Case from Idaho

Take a look at United States v. Driggers, wherein crack appellate lawyer Greg Silvey (the "Sage of Kuna") makes a worthy attempt to turn harmless error into reversible error per se by the way he framed the issue on appeal.

Greg got a nibble, but couldn't set the hook. The Ninth Circuit ended up finding the error in the jury instructions harmless. The case is the lead story in the excellent Ninth Circuit Blog. http://www.circuit9.blogspot.com/

Here's some advice from Steven Kalar:

"The second interesting side discussion in Driggers is on “constructive amendments.” Id. at *3. Trying to dodge harmless error review, Driggers argued that the defective standard instructions were a constructive amendment from the indictment (which alleged that he caused travel with the intent that murder be committed). Id. (NB: Constructive amendments require per se reversal).The Chief Judge doesn’t bite: he explains that “constructive amendments occur when the prosecutor proves, or the court instructs the jury to convict on, materially different facts or substantially different crimes than those charged in the indictment.” Id. at *3. That didn’t happen in this case. Id. While Driggers' gambit didn’t work, the approach illustrates a solid appellate strategy: to avoid winning the battle and losing the war, choose appellate arguments with the standard of review in mind."

An Idaho example can be found in appealing the denial of new trial motions. Those are reviewed (for some reason) under the deferential "abuse of discretion" standard. However, the underlying argument for the new trial may have a better standard of review on appeal, e.g., the question of whether a jury instruction misstates the law is reviewed de novo, a much better place to be on appeal.

Nice try Greg.