United States v. Jimmy D. McGuire

WIENER,

concurring specially:

I concur in the result reached in Judge DeMoss’s fine opinion; however, I respectfully disagree with a key aspect of his analysis. In particular, when both the trial court’s ruling and the defendant’s failure to object to that ruling are fully explained and excused by a supervening change in the law, I would not, for the reasons stated more fully below, visit upon that defendant the burden of plain error review. Accordingly, I do not join in either the last sentence of Part I of Judge DeMoss’s opinion (holding that plain error applies in this case) or the analysis set forth in Part II. Yet, despite the differences in the way that we get there, we reach the same result: McGuire’s conviction for violation of 26 § U.S.C. 6050I and 26 U.S.C. § 7206(1) must be reversed, his sentence vacated, and his ease remanded for a new trial on those charges.

I

INTRODUCTION

Out of the blue, and overturning law long-settled in this and all other circuits, the Supreme Court, in United States v. Gaudin,1 held that when, in a criminal prosecution materiality is an element of the crime charged, the Constitution requires that the *1407materiality element be decided by the jury as an issue of fact, not by the judge as an issue of law (hereafter, Gaudin Rule). In this appeal, we must decide a narrow issue: As the trial judge in McGuire’s case withheld the question of materiality from the jury and decided that issue himself, should we reverse McGuire’s conviction? In positing that question, this appeal presents this court with an opportunity to clarify a broader issue that is sure to resurface: How do we review unob-jeeted-to evidentiary rulings, jury charges, and the like, that were clearly unobjectionable at trial but that have become “error” post trial by virtue of a supervening change in the law (hereafter, Gaudin-type issue)?2 More specifically, when a supervening change in the law explains (and unquestionably should excuse) the absence of a trial objection, do we review Gaudin-type issues (1) under the plain error rubric or some variation thereof, or (2) under the harmless error rubric, just as we would if a contemporaneous objection had been made? Judge DeMoss concludes that a Gaudin-type issue should be reviewed under the plain error rubric. Instead, I would review a Gaudin-type issue as if there had been a contemporaneous objection, and thus would ultimately apply the harmless error analysis.

To review Gaudin-type issues under the plain error rubric strikes me as patently unfair to defendants and logically antithetical to the purpose of plain error. Both conceptually and practically, the plain error rule is intended to encourage and facilitate judicial efficiency. We require a defendant to make contemporaneous objections so that the district court will have an opportunity to correct its own errors instanter and thereby avert unnecessary appeals and multiple trials. Consequently, when the defendant is derelict and fails to bring a correctable error to the court’s attention, we deem him to have forfeited the error. Accordingly, to secure a reversal on appeal despite his forfeiture, we require the defendant to establish that the unobjeeted-to error was so extreme that it affected his substantial rights.3 In short, we do not want defendants sandbagging the trial judge and then wasting judicial resources with a “gotcha” reversal on appeal.

When there is a supervening change in the law, however, as there was here, none of these concerns are present. After all, a pre-Gaudin objection would have been summarily overruled by the district court, so no purpose of judicial economy is served by “penalizing” the defendant for failing to perform the hollow and obnoxious act of objecting in the face of well-settled precedent to the contrary (unless at the time of trial there was reason to expect that a change in the law is in the offing, e.g., cert, pending, advisory committee recommendations in the mill, a bill to change the law winding its way through Congress, or the like).

II

DISCUSSION

A. Must We Apply Plain ERROR Review?

1. How Rule 52(b) Works 4

As a threshold issue, we must decide whether under United States v. Olano5 or United States v. Calverley,6 or both, our ap*1408pellate authority to review Gaudin-type issues is limited to Rule 52(b), or whether we have independent authority to review such “errors” directly. Recently, in Olano, the Supreme Court clarified our general appellate authority under Rule 52(b) to review unobjected-to errors.7 The Court identified three criteria, each of which it characterized as a “limitation on appellate authority”8: First, there must be “error,” or deviation from a legal rule, which has not been waived.9 Second, the error must be “plain,” which at a minimum means “clear under current law.”10 Third, the plain error must “affect[ ] substantial rights,” which normally requires a showing of prejudice.11

In plain error review under Rule 52(b), as contrasted with harmless error review under Rule 52(a), the defendant bears the burden of persuasion.12 The three Olano criteria are necessary but alone they do not require a court to correct an unobjected-to error. Even when all three prerequisites are established, the decision whether to correct the error falls within the appellate court’s discretion. In short, Rule 52(b) is permissive, not mandatory: If the forfeited (but not waived) error is “plain” and “affects substantial rights,” an appellate court has the authority to reverse or vacate, but is not required to do so.13

2. Most Circuits Apply Plain Error

Judge DeMoss in his opinion and Judge Smith in his dissent join the majority of the circuit courts in concluding that plain error review should be applied to Gaudin-type issues. Those courts agree that Olano seems to require that plain error review be applied to all unobjected-to errors.14 This conclusion derives from the following syllogism: (1) Under Olano, all forfeited errors are subject to plain error review; (2) a Gaudin-type issues is & forfeited error; (3) ergo we must apply plain error review to Gaudin-type issues. Even if I had to agree with the first premise, the entire motivation of my writing separately is my abject disagreement with the second premise: All logic is defied if we hold that a Gaudin-type issue is “forfeited error” for lack of a contemporary objection. Wholly distinguishable from the situations in Olano and Calverley, the court’s treatment of mate*1409riality in McGuire’s trial — when viewed in light of the law as it existed then, the way that Judge Smith tells us we must — was not error at all. Consequently, McGuire had nothing to which he could object and thus nothing to forfeit. This logical fallacy in the second premise produces a fatally flawed syllogism, in turn producing the flawed conclusion that we must apply plain error review to Gaudin-type issues. Before we attach eon-clusionary tags and labels such as “forfeited error,” it seems meet and proper that we pause and examine the definition.

3. Where Was The Error?

In Olano, the Court was careful to articulate the difference between waiver and forfeiture: “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ”15 Even though we have two clear categories — waiver and forfeiture — the issue presented in this appeal does not fit logically into either. There was no waiver because the case law at the time of trial indicated beyond cavil that no defendant in this circuit (or anywhere else for that matter, even in the Ninth Circuit) had a right to have a jury determine the question of materiality.16 Moreover, nothing was “in the works” or “on the drawing boards” that would have put anyone on notice that a major change in the law was under consideration. So, just as he waived no “error,” McGuire forfeited no “error”: How could a defendant timely object to the violation of a “right,” when all case law to date made pellucidly clear that no such “right” existed. Thus it is axiomatic that if Gaudin-type issues are neither waived error nor forfeited error, they must-be something else. Whatever else they may be, they were not errors as of the time of the trial.

The trial court could not have ruled other than the way it did, so it committed no error; in failing to object to that which was non-objectionable, the defense committed no error — either by waiver or forfeiture. Thus it is a badly misleading fiction to label a Gaudin-type issue as error.17 Quite simply, we should not try to force this square Gaudin peg into the round plain error hole drilled by Olano and Calverley; instead, we should proceed to carve out a separate but limited square hole into which Gaudin-type “errors” fit, then define the proper standard under which we review them. In the legal vernacular, Olano and Calverley are “distinguishable” from Gaudin-type issues. It follows, then, that as the issue we now face was not an error at all at the time of trial, our review should not be restricted to plain error, and we should not be constrained by the cases interpreting that standard.

B. The Supervening Decision Doctrine

1. The D.C. Circuit

In the D.C. Circuit, the “supervening decision doctrine” appears to allow a direct harmlessness review of a true Gaudin-type issue.18 Under this doctrine, the appellate court can consider issues not raised at trial if a supervening decision has “changed the law in appellant’s favor and the law was so well settled at the time of trial that any attempt to challenge it would have appeared pointless.” 19 The D.C. Circuit offered two justifications for the supervening decision doctrine. *1410First, it would be unfair, and even counterproductive to the efficient administration of justice, to expect a defendant to object at trial when existing law is so clear that it forecloses any possibility of success.20 Second, unless appellate courts consider the effect of a supervening decision in such a situation, the defendant will be denied the benefit of the change in the law.21 (This second prediction would come true every time if we were to follow the position advocated in today’s dissent). Regrettably, the D.C. Circuit has not yet made clear whether this doctrine operates only within the limitations of Rule 52(b) or independently as separate authority and procedure for reviewing Gaudin-type issues directly for harmlessness.

In United States v. Washington22 for example, a panel of the D.C. Circuit recited the plain error standard, then proceeded to define the supervening decision doctrine. The structure of the Washington analysis would thus appear to imply that the doctrine must be applied within the confines of Rule 52(b) only. Ultimately, however, the Washington panel declined to apply the doctrine to the facts before it because the alleged supervening decision was determined not to be a “change” in the law.23 As a result, the analysis is aborted and we are left without a precise application of the doctrine but with a negative pregnant implying its applicability to a situation involving a truly unforeseeable change in the law.

Indeed, in United States v. Rhodes,24 a different panel of the D.C. Circuit embraced the supervening decision doctrine and held “[ajccordingly, we address [defendant’s unob-jected-to error] on the merits.”25 Significantly, Rhodes says nothing about Rule 52(b) or plain error review, strongly suggesting that the supervening decision doctrine (1) operates outside Rule 52(b), and (2) provides an independent authority to review that rare breed of unobjected-to “errors” which are produced by true post-trial, unforeseeable changes in the law.

2. Follow the D.C. Circuit’s Lead

I would follow the path enlightened by the D.C. Circuit and hold that the supervening decision doctrine pertains, serving to preserve an issue for appeal in the relatively rare instances when the following factors coincide: (1) law that is well-settled and thus unobjectionable at the time of trial (2) is changed (3) without warning (4) during direct appeal. By changed I mean reversed or overruled, not merely “fine tuned” or clari*1411fied.26 When all factors are present, the defendant would be entitled to the benefit of the supervening change.27 The supervening change in the law both explains and excuses the absence of an objection by the defendant. Accordingly, I would treat such an issue as though it had been preserved for appellate review, and would test for harmlessness rather than apply plain error scrutiny.

Although my analysis would treat the subject issue as a non-error at trial and as an error on appeal, my position is consistent with the relevant precedent. When the materiality issue in the instant case is viewed as of the time of trial, there was no error under the case law of this circuit; however, when the same issue is viewed as of the time of appeal, an “error” has materialized out of thin air solely because the Supreme Court has overruled prior precedent. In other words, at McGuire’s pre-Gaudin trial, there was no error; on appeal post-Gaudin, there is “error.” The supervening decision both creates this distinction and excuses the absence of a contemporaneous objection. Thus the supervening decision doctrine should be interposed to preserve the Gaudin-type issues for appellate review because by definition they can arise only after trial and before exhaustion of all appellate procedures. The “bottom line” is that, unless as an appellate court we now come forward with a new rule of review, no criminal defendant will ever receive the Griffith benefit of a supervening change in the law.

This is precisely the flaw that, with genuine respect, I discern in Judge Smith’s dissent: His literal examination, as of the time of trial, of the “error” produced by a post-trial sea change in the law ensures that no defendant will ever receive any benefit from a supervening change in the law. He first concludes that, as there was no objection at trial, plain error applies. Second, he looks to the case law at the time of trial and, as the supervening change came after the trial, he finds no error. Third, he points out that, as a result, the second necessary precondition of plain error review — that the error be plain— is not satisfied. He then concludes that the failure to meet this precondition has “tied his hands” and he cannot review the issue. Essentially, Judge Smith uses plain error review to bar defendants from benefiting from a supervening change. If we follow this “cut ’em off at the pass” approach, not only is McGuire denied the benefit of Gaudin, but henceforth every criminal defendant will necessarily be denied the benefit of a supervening change in any law. This cannot be.

3. Burden of Proof

To avoid reversal of a conviction under harmless error review, the government must establish that the defendant’s substantial rights were not affected.28 For all intents and purposes, Judge DeMoss’s standard and my proposed standard are the same except that we place the burden of proof on the “substantial rights affected” issue on opposite parties. Judge DeMoss, by remaining within the stricture of the plain error rubric, burdens the defendant with the task of proving that his substantial rights were affected, while I, by following the supervening decision doctrine’s harmless error procedure, would require the government to establish that the defendant’s substantial rights were not affected.

The burden-shift I advocate here is not without precedent. True, when faced with a supervening decision changing the law, the Second Circuit sticks with the plain error fiction. But it does so with a slight yet significant twist: The burden of proof under the plain error analysis is shifted to the *1412government, requiring it to show that the error did not affect the defendant’s substantial rights.29 As a practical matter, this is very close to, if not the same as, the treatment I am proposing.

Significantly, the Second Circuit justifies its burden shift by contrasting harmless error and plain error.30 In the ordinary ease, if it is clear at the time of trial that an instruction or an evidentiary ruling is erroneous, the defendant knows or should know that he has a duty to object. And, if he fails to object, he forfeits his legal right to have the error corrected because he has impeded the judicial process by failing to prompt the trial court and afford it the opportunity timely to correct the error. In that ordinary case, it is eminently fair to hold a defendant accountable for his failure and to deter defendants from strategically withholding an objection in order to seek reversal on appeal.31

Conversely, when a supervening decision truly changes well-settled law, the analysis changes dramatically. A defendant has no duty to object to a jury charge that is indisputably supported by established law. Obviously, an objection would produce no self-correction by the trial court, so the absence of an objection has no effect on the efficient administration of the judicial system. It follows that, as no such legal right existed at the time of trial, the defendant did not “forfeit” a “right” by not making an objection. To penalize defendants for failing to challenge entrenched precedent would only encourage frivolous objections and appeals. Surely, when the source of what Judges Smith and DeMoss call plain error is a supervening change, the defendant has not been derelict in failing to object and should not be saddled with the burden of proving prejudice.32 In this special context, then, just as in harmless error review under Rule 52(a), the government should bear the burden of showing that the “error” did not affect the defendant’s substantial rights.

C. The SupeRvening Decision Doctrine and McGuire

In McGuire’s ease, all elements of the supervening decision doctrine are present, and the government cannot establish that the failure to send the materiality issue to the jury was harmless. Under the law of this circuit as it existed at the time of trial, McGuire did not have the right to have the jury decide the issue of materiality.33 During the pendency of his appeal, however, the Supreme Court reversed that very law and in so doing gave that right to all criminal defendants, including McGuire. McGuire’s failure to object is explained and excused by this supervening change in the law. Thus, McGuire’s Gaudin-type issue should be treated as though it had been preserved, authorizing review under the harmless error rubric, not under plain error.

Generally, an error is harmless if the reviewing court is certain, after viewing the entire record, that the error did not affect the defendant’s substantial rights.34 As noted by Judge DeMoss, McGuire vigorously contested the materiality issue. Throughout the trial, he insisted that the statements in question were not material. Indeed, this was his principal defense. As materiality was a hotly disputed element of the offense charged and was a key issue to the defense, the failure of the district court to allow the jury to determine the element of materiality indisputably affected McGuire’s substantial rights. I hasten to add that alone the presence of the supervening decision doctrine does not entitle a defendant to automatic reversal; it does nothing more than guarantee that the court will examine the record as a whole to determine whether the “error” retroactively produced by the supervening decision affected the defendant’s substantial rights. Like Judge DeMoss, I am convinced that in this case it did. I am equally convinced that if only Judge Smith’s view of the *1413law would permit him to reach the substantial rights issue, he too would agree that here such rights were affected. And, although in this case we might all agree on the result, regardless of whether the burden of proving prejudice must be borne by the defense or by the government, such might not always be the case. Thus the importance of emphasizing a harmless error rather than a plain error analysis, and their respective burdens of proof, could easily loom large in a case with somewhat different factual aspects.

Ill

CONCLUSION

I find it particularly perverse to require a defendant either to object in the face of clearly established law to the contrary or face a stacked appellate deck in the form of plain error review. I find it equally perverse to deny a defendant appellate review of an issue arising from a supervening change in the law: Griffith demands that he is entitled to reconsideration in light of all changes in the law occurring during the pendency of his appeal. And I find it a cruel irony to subject the defendant to plain error review when no error was committed at the time of the trial, either by the court in following the law as it then existed or by the defense in not interposing a frivolous objection. Consequently, I urge this circuit to adopt a separate jurisprudential doctrine for the review of Gaudin-type issues — specifically, the supervening decision doctrine set forth above — and in such cases to avoid the plain error rubric. Although I have failed to win over either of my colleagues on this panel to my position, I specially concur in the result reached in Judge DeMoss’s opinion and write separately in the hope of encouraging the rest of my colleagues to consider well adopting the supervening decision doctrine which I champion today.

. - U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).

. This is the second time we have seen this type issue in the last year. A similar problem arose after Ratzlaf v. United States, - U.S. -, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (willfulness requirement of 31 U.S.C. § 5324(3) mandates that the government prove, and the jury be instructed, that a defendant acted with knowledge that the structuring he undertook was unlawful). We have not yet had to decide this larger issue in the context of Ratzlaf. See, e.g., United States v. Garza, 42 F.3d 251, 253 (5th Cir.1994) (government conceded jury instructions were plain error under Ratzlaf), cert. denied, - U.S. -, 115 S.Ct. 2263, 132 L.Ed.2d 268 (1995); United States v. Oreira, 29 F.3d 185, 189 (5th Cir.1994) (defendant requested proper jury instruction and objected to its omission at trial, and thus preserved Ratzlaf issue for review).

. Fed.R.Cr.P. 52(b).

. Rule 52(b) reads as follows:

Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

. 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993).

. 37 F.3d 160 (5th Cir.1994) (en banc), cert. denied, - U.S. -, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995).

. See Olano, 507 U.S. at 732-37, 113 S.Ct. at 1777-79.

. Id. at 732-34, 113 S.Ct. at 1777. In Calverley, we recognized these three criteria and explained that in "exceptional circumstances, appellate courts may, in the interest of justice, notice errors to which no objection has been made”; however, we also qualified that statement in the next sentence by stating that "[s]uch circumstances are sharply circumscribed by the plain error standard requiring that unobjected-to errors be 'plain' and 'affect substantial rights.’" 37 F.3d at 162 (emphasis added & footnotes omitted).

Although the three Olano criteria have been described by the Supreme Court and this court as limitations on appellate authority to review unohjected-to errors, neither court has expressly held that Rule 52(b) provides the exclusive authority or means to review unobjected-to errors.

. Olano, 507 U.S. at 732-34, 113 S.Ct. at 1777.

. Olano at 732-34, 113 S.Ct. at 1777.

. Olano, 507 U.S. at 732-36, 113 S.Ct. at 1777-78; Calverley, 37 F.3d at 164.

. Olano, 507 U.S. at 734-36, 113 S.Ct. at 1778; Calverley, 37 F.3d at 164.

. Id.

. See United States v. Lopez, 71 F.3d 954, 960-61 (1st Cir.1995); United States v. Viola, 35 F.3d 37, 41-42 (2d Cir.) (discussing Rule 52(b) versus independent authority to review Gaudin-type issues and concluding that "[t]he better view is that Rule 52(b) is the sole source of our authority to correct errors not preserved by objection.”), cert. denied, - U.S. -, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995); United States v. Retos, 25 F.3d 1220, 1228 (3d Cir.1994) ("Because Retos failed to object to the jury instruction [which is now erroneous under Ratzlaf] at trial, our review is limited to plain error under Federal Rule of Criminal Procedure 52(b)”); United States v. Jones, 21 F.3d 165, 172 (7th Cir.1994) (holding that even though supervening change in law excuses failure to object, all unobjected-to errors are subject to plain error review on appeal); United States v. Gaudin, 28 F.3d 943, 951 (9th Cir.1994) (en banc) ("Because Gaudin did not object to the instruction ... we must ... determine whether this error was ‘plain error.' ”); United States v. Walker, 59 F.3d 1196 (11th Cir.) (Regardless of change in the law, "we review issues not preserved below for plain error.”), cert. denied, - U.S. -, 116 S.Ct. 547, 133 L.Ed.2d 450 (1995); United States v. Washington, 12 F.3d 1128, 1138 (D.C.Cir.), cert. denied, - U.S. -, 115 S.Ct. 98, 130 L.Ed.2d 47 (1994).

. 507 U.S. at 732-34, 113 S.Ct. at 1777 (citations omitted); See also Calverley, 37 F.3d at 162.

. See, e.g., United States v. Swaim, 757 F.2d 1530, 1534 (5th Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985).

. Judge Smith's analysis has a curiously convenient relationship to this fiction, giving rise to what I see as a “chicken or egg" problem. For even though he begins with the proposition that plain error is the applicable standard, he ultimately concludes that there was no error at trial. Which question comes first: (1) was there an error, or (2) do we apply plain error review?

. See United States v. Washington, 12 F.3d 1128, 1138 (D.C.Cir.), cert. denied, - U.S. -, 115 S.Ct. 98, 130 L.Ed.2d 47 (1994).

. Id. at 1139. See also United States v. Baucum, 66 F.3d 362, 363 (D.C.Cir.1995) (per curiam) (“[Ujnder the supervening-decision doctrine, we will consider an issue not raised at trial 'where a supervening decision has changed the law in appellant’s favor and the law was so well-settled at the time of trial that any attempt to challenge it would have appeared pointless.’ ”); United States v. Rhodes, 62 F.3d 1449, 1450 (D.C.Cir.1995) (same).

. Washington, 12 F.3d at 1139.

. Id.; Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (“We therefore hold that a rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break' with the past.”).

. 12 F.3d at 1138 (supervening change in the reasonable doubt jury instruction). Washington involved a challenge to a jury instruction directing the jury that it could find the defendant guilty if the evidence caused them tó have a “strong belief" in the defendant's guilt. Washington did not object at trial, but urged on appeal that Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), a supervening decision case, changed the law, and required reversal despite the lack of objection. In Sullivan, the Supreme Court held that a jury instruction which equates "beyond a reasonable doubt” with "strong belief” is constitutionally deficient.

. The court held that at the time of trial the constitutionality of the "strong belief” jury instruction was not so well-established that any objection would have seemed futile. According to the Washington court, no court of appeals had upheld the “strong belief” jury instruction at the time of trial and several cases in that circuit should have put the defendant on notice of the deficiency of such an instruction. Id. at 1139. That cannot be said of McGuire and “materiality” pre-Gaudin. Thus, the supervening decision doctrine did not apply. See also Baucum, 66 F.3d at 364 (reaffirming availability of supervening decision doctrine, but declining to apply for reasons similar to Washington: (1) challenging the constitutionality of a new statute would not have been futile; (2) defendant on notice because previous challenge had been successful).

. 62 F.3d 1449 (D.C.Cir.1995). This panel addressed the applicability Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) and Department of Revenue of Montana v. Kurth Ranch, - U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), 62 F.3d 1449 (D.C.Cir.1995). Both of these decisions, the defendant urged, were supervening changes in the law of double jeopardy.

. Rhodes, 62 F.3d at 1452.

. I find it both significant and important to my analysis that the Supreme Court in Olano and this court in Calverley left open the question whether plain error review should apply “where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” For, in the instant case, the "error" was not just unclear at trial, it was not error at all; and the applicable law has not just been “clarified,” it has been changed entirely.

. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (requiring that criminal defendants receive the benefit of changes in the law governing the conduct of criminal prosecutions, at least those made during the pendency of his appeal).

. See Fed.R.Cr.P. 52(a).

. See Viola, 35 F.3d at 42.

. Id.

. Id.

. Id.

. Swaim, 757 F.2d at 1534.

. See Fed.R.R.P. 52(a).