United States v. Herta Wittgenstein, Also Known as Herta Hilscher, Also Known as Herta Christiensen

PAUL KELLY, Jr., Circuit Judge,

dissenting.

The court holds that the arrest element of former 18 U.S.C. § 1326 is satisfied by knowledge or notice of a deportation order, and that Ms. Wittgenstein “waived her right to a jury trial with respect to that element” based upon her statements showing that she was aware of the order. See Ct. Op. at 1170. Because service of a warrant of deportation is essential for an arrest (not merely notice of a final deportation order), and because “[t]he Constitution gives a criminal defendant the right to demand that a jury find him guilty of all of the elements of the crime with which he is charged,” United States v. Gaudin, 515 U.S. 506, 511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), I respectfully dissent.

A.

A legally incorrect instruction constitutes error. See United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). While I agree with the court that the district court’s instruction understated the legal standard for arrest, so too does the court’s formulation. While the court acknowledges that all of the cases it relies upon for the meaning of “arrest” involve service of a warrant of deportation, it still concludes that “these opinions do not stand for the proposition that service is necessary where actual knowledge of a final deportation order exists.” Ct. Op. at 1169. The cases plainly require service of a warrant of deportation and do not hold it may dispensed with upon actual knowledge of a final order of deportation, let alone the warrant. See United States v. Bahena-Cardenas, 70 F.3d 1071, 1073-74 (9th Cir.1995) (“We are not aware of any case holding that an alien who was not served with the warrant was ‘arrested’ under the statute. We agree with the Fifth Circuit and hold that the term ‘arrested’ in 8 U.S.C. § 1326 requires that a warrant of deportation be served on the alien.”); United States v. Quezada, 754 F.2d 1190, 1192 (5th Cir.1985) ( “[A]n ‘arrest’ under the statute is accomplished by service on the alien of the warrant of deportation, thus providing the requisite notice to trigger criminal sanctions for illegal reentry thereafter.”); United States v. Wong Kim Bo, 466 F.2d 1298, 1306 (5th Cir.1972) (“Accordingly, since there is no evidence that a warrant of arrest for deportation was issued or served, the Government failed to prove an element of the criminal offense.”).

To equate an arrest with mere knowledge or notice of a final deportation order is to ignore that an arrest is accomplished by a warrant of deportation and service. See Bahena-Cardenas, 70 F.3d at 1073 (warrant of deputation must be issued and served). Although the court recognizes that service of a warrant of deportation may give knowledge or notice of a final deportation order, the court’s formulation dispenses with an element of the statute (arrest pursuant to a warrant) in favor of one of the purposes of an arrest (notice or knowledge of an order of deportation). I would suggest that an element contained in the statute may not be disregarded merely because one purpose of the element may have been fulfilled by some other means. Otherwise, the meaning of a statute would vary from one expositor to another and policy would eclipse statute.

The seminal case discussed “service [of a warrant of deportation] of which constitutes an ‘arrest’ as we understand the term[:]”

*1174Once service has been had, an arrest has been consummated (for purposes of this statute) since thereafter the alien is continually subject to the restraints and .orders of the District Director, and in “custody” even though physical surrender may be deferred for several days.... [This] “custody” results from the restraint on liberty attendant upon being subject to the orders of another. The act which effectuates that result — in this case, service of the Warrant of Deportation — must be characterized as an “arrest.”

Wong Kim Bo, 466 F.2d at 1308 n. 17. No case has been cited upholding a § 1326 conviction where the defendant had not been served with the warrant of deportation, i.e. arrested. See, e.g., Bahena-Cardenas, 70 F.3d at 1073-74 (reversing conviction where defendant was not served); Quezada, 754 F.2d at 1194 (“We further believe that the warrant of deportation in this case establishes the service required by Wong Kim Bo. Appellant’s thumbprint on the warrant indicates that the warrant was presented to him prior to departure.”); United States v. Hernandez, 693 F.2d 996, 998 (10th Cir.1982) (signature of defendant appeared on reverse side of three of four warrants and INS agent testified that he was the arresting officer each time). Holding that the arrest element could be satisfied on mere notice of an order of deportation, or even the issuance of a warrant of deportation, “would eliminate the arrest element altogether.” Bahena-Cardenas, 70 F.3d at 1073.

B.

The court compounds the problem by determining that the erroneous jury instruction was harmless error. According to the court, the evidence that Ms. Wittgenstein had actual knowledge or notice of the final deportation order constitutes an admission of the .“arrest” element, and therefore, she has waived her right to a jury trial on that element. Ct. Op. at 1170.

As background, the court’s approach goes far beyond deciding the correct law that applies to the evidence and into the realm of applying that law to the facts. Of course, only the jury is empowered to do the latter.

After the government has presented its evidence as to each element, and the defendant has had the opportunity to present a defense, if the defendant so chooses, the judge must [correctly] instruct the jury on the law applicable to the issues raised at trial. See United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.1986). Under Sixth Amendment jurisprudence, the next two steps are strictly for the jury: (1) determining the facts as to each element of the crime, and (2) applying the law as instructed by the judge to those facts.

United States v. Johnson, 71 F.3d 139, 143 (4th Cir.1995).

In a direct criminal appeal, error committed over objection is generally reviewed under Fed.R.Crim.P. 52(a). Because Ms. Wittgenstein posed a timely objection, the government bears the burden of proving a lack of prejudice in this direct criminal appeal. See Olano, 507 U.S. at 734, 113 S.Ct. 1770. The Supreme Court and this court have described rare situations where an elemental instructional error may be harmless. One, of course, is where the defendant was ultimately acquitted of the relevant charge, and other charges were unaffected. See Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (plurality opinion). In addition, because the right to jury trial may be waived, others are where a defendant admitted the essential element, see id., or stipulated to facts establishing (not merely tending to establish) the essential element, see United States v. Mason, 85 F.3d 471, 472 (10th Cir.1996).

Here, Ms. Wittgenstein did not admit the arrest element, nor did she stipulate to facts establishing it. Quite the contrary, the evidence at trial put this element in dispute and she vigorously contended throughout the proceedings that she was never arrested within the meaning of the statute. See I R. doc. 30 at 22-23 (Motion to Dismiss and Memorandum in Support) (“Herta Wittgenstein has not been arrested within the meaning of 8 U.S.C. § 1326(a).”); I.R. doc. 33, Instruction No. K (Defendant’s Requested Jury Instructions); I.R. doc. 73; IX R. at 288 (Motion for Judgment of Acquittal at close of prosecution’s case-in-chief); IX at 329 (Motion for Judgment of Acquittal at close of all of the evidence); IX R. 325-26, 360-61 (objections *1175to court’s jury instructions); IX R. 352 (government’s closing argument stating issuance of the warrant of deportation was all that was required, notwithstanding Ms. Wittgenstein’s argument that she was never arrested).

The government makes but one argument in its effort to carry its burden: that its presentation of overwhelming evidence of service and notice at trial renders the erroneous instruction harmless. The government relies upon language of the Supreme Court stating that “[w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). This approach, however, was unanimously debunked in Yates v. Evatt, 500 U.S. 391, 402-03 n. 8, 111 S.Ct. 1884, 114 L.Ed.2d 432. (1991). It offends a defendant’s Fifth and Sixth Amendment rights to a jury determination of guilt beyond a reasonable doubt as to every element of the crime charged. See Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); see also Yates, 500 U.S. at 407, 111 S.Ct. 1884 (reversing because state court’s analysis of record evidence left it unclear whether jury verdict “did rest on that evidence”).

The Sixth Amendment embodies “a profound judgment about the way in which law should be enforced and justice administered.” Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The jury right “was designed to guard against a spirit of oppression and tyranny on the part of rulers, and was from very early times insisted on by our ancestors in the parent country, as the great bulwark of them civil and political liberties.” Gaudin, 515 U.S. at 510-11, 115 S.Ct. 2310 (internal quotation marks and citation omitted). To these ends, the Sixth Amendment entitles those accused of serious crimes to more than a hypothetical jury verdict, it entitles them to an actual jury verdict. See Sullivan, 508 U.S. at 280, 113 S.Ct. 2078. If not actual in form, a verdict must at least be actual in fact. See United States v. Holland, 116 F.3d 1353, 1357 n. 3. (10th Cir.), cert. denied, — U.S.-, 118 S.Ct. 253, 139 L.Ed.2d 181 (1997), overruled on other grounds, Bousley v. United States, — U.S. -, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

To determine whether a jury verdict was actual in fact, courts must initially determine the scope of the record in the context of which the erroneous instruction’s affect is to be assessed. See Yates, 500 U.S. at 404, 111 S.Ct. 1884; see also Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. The scope of the record considered must be determined by review of the set of instructions the jury was given, consistent with the customary rule that juries are presumed to have followed them instructions. See Yates, 500 U.S. at 403-04, 111 S.Ct. 1884; Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). To blindly assume the jury considered all of the evidence would fail to ensure that a judgment of harmlessness is made in a manner that preserves a defendant’s right to jury trial. See Yates, 500 U.S. at 405-06, 111 S.Ct. 1884. Reviewing courts would engage in a prohibited subjective inquiry into jurors’ minds, weighing all of the evidence and necessarily speculating as to whether a jury, if it considered that evidence, would have found guilt beyond a reasonable doubt. See id. at 404-06, 111 S.Ct. 1884.

Accordingly, the Supreme Court has repeatedly held that even overwhelming evidence cannot constitutionally substitute for an actual jury finding, whether formal or effective, on an essential element of a serious crime. See Sullivan, 508 U.S. at 279-80, 113 S.Ct. 2078; United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United Bhd. of Carpenters & Joiners v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 91 L.Ed. 973 (1947); Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 90 L.Ed. 350 (1946); see also Cabana v. Bullock, 474 U.S. 376, 384-85, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). “[T]he question is not whether guilt may be spelt out of a record,” Bollenbach, 326 U.S. at 614, 66 S.Ct. 402, but whether the verdict “actually rendered” was unaffected by the erroneous instruction, Sidlivan, 508 U.S. at 279, 113 S.Ct. 2078; see Yates, 500 U.S. at 404, 111 S.Ct. 1884. If the rule were different, the “wrong entity” could determine guilt, and directed verdicts for the government *1176might as well be permitted. See Rose, 478 U.S. at 578, 106 S.Ct. 3101; Sparf v. United States, 156 U.S. 51, 105-06, 15 S.Ct. 273, 39 L.Ed. 343 (1895).

Once the scope of the record is determined, Justice Scalia’s concurring opinion in California v. Roy provides guidance in an assessment of whether a misdescribed element was nevertheless found beyond a reasonable doubt, so that the misdescription was harmless. The Court in that case was also concerned with “an error in the instruction that defined the crime.” California v. Roy, 519 U.S. 2, 117 S.Ct. 337, 339, 136 L.Ed.2d 266 (1996). Justice Scalia explained that “[t]he error in the present ease can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well.” Id. at 339-40 (Scalia, J., concurring) (emphasis in original) (quoted with approval in Holland, 116 F.3d at 1357).

This approach is consistent with this circuit’s § 924(e) “use or carry” cases. In those cases, where jury instructions on “use” were faulty after Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the court did not uphold convictions based on overwhelming evidence of “use,” notwithstanding the faulty instructions. See, e.g., Holland, 116 F.3d at 1357 (declining to base decision on government’s argument). Rather, convictions were affirmed based on other instructions given and the resultant jury consideration of evidence bearing on “carrying,” and necessary jury findings of “carrying,” an explicit alternative element under the statute. See, e.g., id. at 1359. Convictions were not upheld based on hypothetical jury verdicts, but actual jury verdicts, effective in fact if not in form. See United States v. McDonald, 150 F.3d 1301, 1304-05 (10th Cir.1998); United States v. Durham, 139 F.3d 1325, 1335-36 (10th Cir.), cert. denied, — U.S. -, 119 S.Ct. 158, 142 L.Ed.2d 130 (1998).

The government makes no argument that the instruction at issue, or any other instruction given, indicates the jury considered any evidence of service, much less necessarily found service beyond a reasonable doubt. I can find none, nor can I find any evidence that the jury considered whether Ms. Wittgenstein had knowledge of a final order of deportation under the court's incorrect formulation. Rather, the erroneous district court instruction, like a narrow conclusive presumption, indicates that a jury would not have considered other evidence bearing on an arrest, or notice of a final order of deportation under the court’s incorrect formulation. See Yates, 500 U.S. at 403-04, 111 S.Ct. 1884; Johnson, 460 U.S. at 85-86, 103 S.Ct. 969; Carella v. California, 491 U.S. 263, 269, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring). The challenged instruction told the jury that the mere issuance of a warrant constitutes arrest, and issuance was undisputed. Thus, presuming jurors follow their instructions, it would have been a waste of the jurors’ time to consider any other evidence of notice, service, or arrest generally. See Sandstrom v. Montana, 442 U.S. 510, 526 n. 13, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Likewise then, neither the challenged instruction, nor any other instruction, indicates a necessary jury finding either embracing service or making it impossible to not also have found service. The government, therefore, has not demonstrated a means to say the jury verdict “actually rendered” on the instructions given was unaffected by the error, only that a jury verdict hypothetically could have been rendered on all of the evidence. Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. This case does not present a Griffin situation because the jury instructions did not provide the jurors any independent alternative ground for finding an arrest. See Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). Instead, the challenged instruction stated that issuance “constitute[d]” arrest. I R. doc. 75.

As part of its argument, the government quotes the Supreme Court in Pope v. Illinois, 481 U.S. 497, 503, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), in which it stated, “While it was error to instruct the juries to use a state community standard in considering the value question, if a reviewing court concludes that no rational juror, if properly instructed, could find value in the magazines, the convictions should stand.” The government quotes Pope out of context. In that case, the Court held that an instruction directing the use of a community standard in judging the value of *1177allegedly obscene material rather than a reasonable person standard was potentially harmless error. See id. at 498-99, 501-02, 107 S.Ct. 1918. First, a jury considering whether the material lacked value under a community standard would consider the same evidence under a reasonable person standard. See id. at 503, 107 S.Ct. 1918. Second, the error in Pope would have been harmless if no rational juror who found a lack of value under a community standard (which the jury in Pope did find) possibly could have found value under a reasonable person standard. See id. at 503 & 504, 107 S.Ct. 1918 (Sealia, J., concurring).

In this case, however, a jury instructed that mere issuance of a warrant constitutes arrest would not necessarily consider the same evidence of arrest as a jury instructed that service is required. Indeed, the government told the jury that it need not consider any other evidence than issuance of the warrant of deportation.1 Furthermore, it not possible to say that no rational juror who found issuance of a warrant (or notice of a final order of deportation under the court’s formulation) possibly could fail to also find service. Issuance and service are dissimilar and unrelated. Thus, “[tjhere is no way of knowing here whether the jury’s verdict was based on facts within the condemned instructions,” or based on notice and service. United Bhd. of Carpenters & Joiners, 330 U.S. at 408, 67 S.Ct. 775.

Based on the foregoing, the error in this case was not harmless. Contrary to the government’s position and that of the court, see Ct. Op. at 1170 (stating that Ms. Wittgenstein has “waived” her right to a jury trial on the arrest element because she admitted to actual notice of the final deportation order), Ms. Wittgenstein is entitled to an actual jury finding, either formal or effective, on each essential element irrespective of even overwhelming evidence against her. See Mason, 85 F.3d at 472 (trial court may not “remove[ ] the consideration of an issue based upon the strength or similarity of the government’s evidence”). To consider misdescription of an essential element harmless based on a judge’s assessment of overwhelming evidence alone “would give too much weight to society’s interest in punishing the guilty and too little weight to the method by which decisions of guilt are to be made.” Johnson, 460 U.S. at 86, 103 S.Ct. 969. I would reverse and remand for a new trial.

. The government stated:

[Defense counsel] has spent a lot of time talking about what it means to be taken into custody and arrested, and preserving Ms. Wittgenstein's right to appeal. And I want to make it plain to you what the instruction was that the Court gave. The issuance of a warrant of deportation by the Immigration and Naturalization Service is sufficient restraint on liberty to constitute an arrest, even without custodial manhandling or physical restraint.
The Government’s Exhibit 2, the issuance of the warrant of deportation. This by itself constitutes an arrest.

IX R. 352.