April 17, 2005
When Being Right Just Isn't Enough
A recent decision of the Fifth Circuit in United States v. Miller (here) discusses a situation that points out the trap into which a defendant can fall under the plain error rule because counsel did not see the problem and object. Miller entered a guilty plea to one count of money laundering and one count of tax evasion related to his embezzlement of over $950,000 while he served as CFO of a health care provider. He was sentenced to a 96-month term of imprisonment and ordered to make restitution of $1,485,074.24, which includes a payment to the IRS of $335,000 for unpaid taxes and $1.15 million to his former employer. Here is where the plain error rule rears its ugly head. The Fifth Circuit rejected his argument that there is no authority to order a defendant to pay restitution to the IRS because no objection was raised at sentencing to this part of the sentence. The court found that Miller could have been fined the same amount, so "it cannot be that Miller's substantial rights were affected." All well and good, but if a court does not have power to make this type of order, shouldn't there be a remedy?
But wait, it gets worse for Miller. His appellate counsel pointed out that he was ordered to repay the former employer and pay taxes on that same amount. In order words, he's paying taxes on money he did not receive, if the restitution is made to the former employer. Certainly logical, as the Fifth Circuit noted when pointing out that the argument has a "certain intuitive appeal." Unfortunately for Miller, once again there was no objection to the restitution order, and therefore under the plain error doctrine his argument was described as "novel," and plain error only applies to errors that are "obvious," "clear," or "readily apparent." A novel argument cannot be any of those, reasoned the Fifth Circuit, and therefore the wonderfully logical argument -- which may, of course, fail as a matter of tax law, where logic bears little relation to reality -- cannot be said to be "plain" to trigger any relief.
I have read enough plain error cases in the past two years, while working on the Federal Practice and Procedure: Criminal treatise to not be surprised by the failure of counsel to object, make motions for judgment of acquittal, or seek other relief in the trial court. It is a matter of having to be more than just right, but really right, to avoid having the sins of trial counsel visited on the defendant. (ph)
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