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Plain Error Review: Continuing Offense and Ex Post Facto

U.S. v. Marcus, USSC No. 08-1341, 5/24/10

… (A)n appellate court may,in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings ….

This case is decided under FRCrP 52(b), which means of course that it isn’t binding on state appeals. Wisconsin’s tends to equate “plain error” with violation of a constitutional right, and might in practice not be terribly different from the federal test, if rhetorically distinct,  State v. James D. Lammers, 2009 WI App 136, ¶12 (if nothing else, unpreserved error “must be ‘obvious and substantial,’ and courts should use the plain error doctrine sparingly”). Plain error review is quite distinguishable from its counterpart for reviewing unpreserved error, interest of justice, e.g., State v. Jonathan J. Hubbard, 2007 WI App 240, ¶18 (“When we invoke our discretionary reversal power on grounds that the real controversy has not been tried, we need not determine whether the outcome of the trial would have been different on retrial.”).

The claimed error might be of some interest: whether Marcus’ commission of a “continuing offense” that straddled the effective date of the offense violated the ex post facto clause. The Court put it this way: “The error at issue in this case created a risk that the jury would convict respondent solely on the basis of conduct that was not criminal when the defendant engaged in that conduct. A judge might have minimized, if not eliminated, this risk by giving the jury a proper instruction.” Moreover, the risk even if actualized would have presented a due process rather than ex post facto problem: “Rather, if the jury, which was not instructed about the TVPA’s enactment date, erroneously convicted Marcus based exclusively on noncriminal, preenactment conduct, Marcus would have a valid due process claim.”

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