USA v. Andrew Auernheimer
Filing
71
ECF FILER: Letter dated 03/20/2014 , filed pursuant to Rule 28(j) from counsel for Appellee USA. This document will be SENT TO THE MERITS PANEL, if/when applicable. (GJM)
U.S. Department of Justice
United States Attorney
District of New Jersey
Appeals Division
____________________________________________________________________________________________________________________
Glenn J. Moramarco, AUSA
glenn.moramarco@usdoj.gov
401 Market Street, 4th Floor
Camden, New Jersey 08101
856-968-4863
March 20, 2014
Marcia M. Waldron, Esq.
Clerk, U.S. Court of Appeals
for the Third Circuit
601 Market Street, Room 21400
Philadelphia, Pa 19106-1790
Re:
United States v. Andrew Auernheimer, Dkt. No. 13-1816
Letter Pursuant to Fed. R. App. P. 28(j)
(Oral Argument held March 19, 2014 before Judges Chagares,
Greenaway and Vanaskie)
Dear Ms. Waldron:
These cases bear on yesterday’s harmless error issues.
Harmless error review applies to “all errors where a proper objection is
made at trial” except a limited class of fundamental constitutional errors that defy
harmless error analysis. United States v. Neder,527 U.S. 1, 7 (1999). See also
United States v. Gonzalez-Lopez, 548 U.S. 140, 148-51 & n.4 (2006)
(distinguishing between “structural errors” and “trial errors”). Although language
in Gonzalez-Lopez might suggest that conducting a trial in the wrong venue could
be structural error, insofar as it affects the framework within which the trial
proceeds, the Supreme Court has never so held. In fact, misjoinder of claims for
trial is subject to harmless error analysis even though that kind of error also affects
the framework of the entire trial. United States v. Lane, 474 U.S. 438, 44-48 &
n.11 (1986).
Additionally, the defendant in United States v. Nash, 175 F.3d 440 (6th Cir.
1999), had the right under 28 U.S.C. § 3004(b)(2) to transfer venue over a writ of
garnishment to his district of residence. The district court nonetheless denied the
defendant’s timely request. The Sixth Circuit held that to be harmless error under
Rule 52(a). The defendant suffered no financial hardship, and “the substantive
outcome would have been the same even if the transfer of venue had been
granted.” Nash, 175 F.3d at 443-44. Importantly, § 3004 — like the venue statute
here — did not specify any remedy for violations. Contrast Zedner v. United
States, 547 U.S. 489, 507-08 (2006) (finding “an implied repeal of Rule 52” where
the statute was “unequivocal” about remedy for violations).
Finally, United States v. Robinson, 167 F.3d 824, 829 (3d Cir. 1999), holds
that objections to venue are waived if not raised in a timely manner. While there
was no such waiver here, Robinson undermines any suggestion that the mere filing
of a motion to dismiss on venue grounds suffices to show that a venue error is not
harmless. Failure to object results in waiver, and claims are not subject to
harmless error analysis at all unless they are first properly preserved for appellate
review.
Respectfully submitted,
PAUL J. FISHMAN
United States Attorney
/s Glenn J. Moramarco
Glenn J. Moramarco
Assistant United States Attorney
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