UNITED STATES OF AMERICA, PETITIONER V. THOMAS O. ROBINSON, JR. No. 86-937 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-13a) is reported at 794 F.2d 1132. An earlier opinion of the court of appeals (App., infra, 15a-27a), vacated and remanded by this Court (470 U.S. 1025 (1985)), is reported at 716 F.2d 1095. JURISDICTION The judgment of the court of appeals (App., infra, 28a) was entered on July 9, 1986. A petition for rehearing was denied on September 9, 1986 (App., infra, 29a-30a). On October 28, 1986, Justice Scalia extended the time within which to file a petition for a writ of certiorari to and including December 8, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether, after defense counsel has argued in summation that the government prevented the defendant from explaining his side of the story, a prosecutor may respond in rebuttal that the defendant was free to testify had he chosen to do so. 2. Whether the "plain error" doctrine applies to errors affecting constitutional rights. STATEMENT After a jury trial in the United States District Court for the Middle District of Tennessee, respondent was convicted on two counts of mail fraud, in violation of 18 U.S.C. 1341 and 2. /1/ Each count was in connection with a fire and subsequent insurance claim. He was sentenced to a five-year term of imprisonment, all but five months and 29 days of which was suspended in favor of a five-year term of probation. 1. The evidence at trial showed that in early 1979 respondent leased a truck stop in Guthrie, Kentucky. At that time, he purchased a $31,000 fire insurance policy on a wrecker and the contents of the garage at the truck stop. Tr. 309-310, 317-319. Earlier in 1979, respondent had told a man whom he had asked to become a partner in the truck stop that if the business turned out to be unsuccessful, he had a large inventory and could burn it. Tr. 485-487. Throughout 1979, respondent was consistently delinquent in paying his rent, and by September 1979 his business had deteriorated significantly. Tr. 313, 359, 495, 512-513. On August 30, 1979, respondent increased the insurance coverage on the garage contents from $31,000 to $50,000. Two days later, on September 1, 1979, there was an explosion and fire in the garage. Respondent subsequently submitted an $80,000 insurance claim for the loss of the wrecker and the contents of the garage and an adjoining office. Tr. 318-319, 341, 344; App., infra, 10a-11a. The day after the fire, respondent's insurance agent, Aaron Williams, inspected the burned-out areas. Williams observed that tools and equipment he had previously seen in the garage were missing, that respondent's insured wrecker, which was usually parked in front of the truck stop, had been destroyed in the fire, and that respondent's uninsured race car, which was normally kept in the garage, had not been damaged. Williams also observed that the office area of the garage did not contain the remains of a color television, an adding machine, or a copying machine that respondent later claimed he had lost in the fire. Tr. 322-323. Shortly thereafter, investigators discovered that a large quantity of fire accelerant had been poured on the floor where the fire had started and that a desk in the office area contained no files or debris of any kind. Tr. 442-443, 457-458, 476-484; App., infra, 11a. During the next several weeks, respondent asked salesmen with whom he dealt to prepare false invoices showing that he had purchased an air compressor and more than $10,000 worth of tires, so that he could submit those items as part of his proof of loss to the insurance company. Tr. 410-417, 429-430; GXs. 24, 25; App., infra, 11a. Approximately a year later, respondent's house in Clarksville, Tennessee, was heavily damaged by arson about an hour after respondent had left the premises with a large U-Haul truck filled with most of his household furnishings. Tr. 50-51, 252-260, 267. Firefighters and investigators inspected the premises shortly after the blaze had been extinguished. They discovered that a large, two-handled cooking pot containing gasoline had been left on a lit stove, that an electric fan had been left running near an air vent, and that "rapid-rise" gasoline had been spread throughout the house. They also determined that the doors and windows were locked, that the house was sparsely furnished, and that there was nothing in most of the dresser drawers or closets. Tr. 59-60, 64-65, 70-74, 78-85, 91, 99-107, 131-132. The authorities later learned that the home security system had been disconnected prior to the blaze. Tr. 154-156, 214; App., infra, 11a-12a. During the month preceding the fire at his home, respondent had packed family belongings, moved household furnishings from his house, and held a yard sale that was attended by several neighbors. Tr. 182, 190, 202, 212, 226, 252. Two or three days before the fire, respondent began loading his household furnishings into a large U-Haul truck with the help of a 17-year-old neighbor, Christopher Edwards. Edwards also helped respondent move older furniture and appliances from the garage into the house. Tr. 257. The day before the fire, Edwards' 11-year-old brother saw respondent draining gasoline from his race car into a large, two-handled cooking pot. Tr. 232-233. During the early morning hours immediately before the fire, Edwards helped respondent load the truck with clothing, beds, a grandfather clock, a dining room set, a master bedroom set, a microwave oven, and a double-door refrigerator-freezer filled with meat. Tr. 256-266. Edwards remained with respondent and his family until sometime after 3:00 a.m., when they were ready to leave for California. While Edwards and respondents' family waited outside, respondent remained alone in the house for five to ten minutes. After respondent left the house, he and his family departed in the U-Haul truck and an automobile. An hour later, neighbors discovered that respondent's house was on fire. Tr. 214, 227, 230, 266-267; App., infra, 12a-13a. Respondent subsequently contacted the company that insured the Clarksville house. He stated that his family had left Clarksville to vacation in California, but that they had decided to remain there because of the fire. Tr. 135-137. He provided the company with a list of property allegedly lost in the blaze. Tr. 137-139; GX 16. Respondent thereafter mailed the insurance company a proof of loss statement and a claim for $200,000, including a $106,500 personal property claim. Tr. 137-140; GX 18. Property that respondent had included in his insurance claim was later discovered by authorities in his California residence. Tr. 177-178, 183-185, 203, 215-219, 235-243, 260-266, 381; App., infra, 13a. /2/ The evidence for the defense consisted of the testimony of two of respondent's children (Tr. 515-562, 596-609) and a neighbor (Tr. 562-589) concerning the events surrounding the fires. In addition, respondent called a business associate, who testified that respondent had been current in his business dealings. Tr. 589-596. Neither defendant testified. App., infra, 13a. 2. Petitioner's attorney began his closing argument by contending that the government had breached its duty to be fair to the accused and to "play( ) straight" with the jury. Tr. 658. He repeatedly returned to that theme, arguing that the government had unfairly "filtered" the evidence and had used a particular witness in order to "imply something sinister" about respondent's conduct. Tr. 662, 667-668, 674, 676. In addition, five different times in his summation defense counsel charged that the government had unfairly denied respondent an opportunity to "explain" his actions. App., infra, 1a-2a. Near the conclusion of his argument, counsel stated (Tr. 671-672): Now, would you like to get indicted for that, without the Government being fair, and being able to explain, have him explain before you, members of your own community, rather than before the agents?( /3/ ) Defense counsel also attempted to imply that there were weaknesses in the prosecution's case by pointing out the absence of evidence of "more situations where there have been false claims, rather than one or two for Kentucky( )" (Tr. 676). Counsel made that argument even though the prosecution had attempted unsuccessfully, on several occasions, to introduce precisely that sort of evidence. Tr. 141-148, 207-208, 351-352. /4/ After the defense summation, the prosecutor objected to defense counsel's argument that the government had not given respondent a chance to "explain." He requested leave to rebut that contention, arguing that the defense had "opened the door" on that issue. Tr. 680-681. Despite ample opportunity to defend his actions or to object to the proposed rebuttal, defense counsel remained silent. The district court ruled that the prosecutor could answer respondent's contention that he had been afforded no opportunity to explain. The court states (Tr. 681): Yes. Mr. Washko, I will tell you what, the Fifth Amendment ties the Government's hands in terms of commenting upon the defendants' failure to testify. But that tying of hands is not putting you into a boxing match with your hands tied behind your back and allowing him to punch you in the face. That is not what it was intended for and not fair. I will let you say that the defendants had every opportunity, if they wanted to, to explain this to the ladies and gentlemen of the jury. We might get reversed on it. Mr. Durham opened the door not less than four times in his argument on that question. I will let you comment on it in response. Defense counsel made no objection. App., infra, 2a. /5/ In accordance with the ruling he had obtained from the court, the prosecutor began his closing argument with a rebuttal to the defendant's attack on the government's conduct, including the following (Tr. 685): (Defense counsel) has made comments to the extent the Government has not allowed the defendants an opportunity to explain. It is totally unacceptable. He explained himself away on tape right into an indictment. He explained himself to the insurance investigator, to the extent that he wanted to. He could have taken the stand and explained it to you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain. Defense counsel made no objection to those remarks and did not request any cautionary instructions. The trial court later instructed the jury that a defendant has no burden to produce any evidence and that "no inference whatever may be drawn from the election of a defendant not to testify" (Tr. 694). Defense counsel stated that they had no objection to the court's instructions. Tr. 719-720; App., infra, 2a-3a. 3. The court of appeals reversed (App., infra, 15a-27a). It held that the prosecution does not have a right to make "direct comment on a defendant's failure to testify * * * , even if defense counsel has baited the prosecutor" (id. at 20a). Moreover, the court held that the error was not cured by the trail court's jury instructions and that, although the government's "evidence is strong," the error was not harmless beyond a reasonable doubt (id. at 6a, 9a). /6/ 4. On March 4, 1985, this Court vacated the judgment and remanded the case with instructions to reconsider the decision in light of United States v. Young, 470 U.S. 1 (1985). See 470 U.S. 1025 (1985). On remand, the court of appeals adhered to its prior judgment (App., infra, 1a-13a). The court first held that the prosecutor's remarks constituted "a clear violation of the defendant's constitutional right not to testify" (id. at 3a). The court next distinguished Young, holding that the government's summation amounted to plain error. The court reasoned that it was freer to find plain error here because unlike in Young -- which involved only "ethical" violations -- the prosecutor in this case had violated respondent's constitutional rights (id. at 5a-6a). Moreover, the court noted that the prosecutor's argument in Young had focused on the prosecutor's credibility, while in this case the prosecutor's argument had "directly placed the defendant's credibility into issue" (id. at 8a (emphasis in the original)). Finally, the court noted that the evidence in this case, "though substantial, was not as overwhelming as in Young," a conclusion that the court drew from "(t)he fact that the jury did not find (respondent) guilty on all counts" (ibid.). The court of appeals concluded that because it could not find the prosecutor's remarks harmless beyond a reasonable doubt, plain error had been committed (id. at 9a). Judge Cohn dissented. He agreed that the prosecutor's summation was improper, but he concluded that the evidence at trial was too substantial to warrant a finding that the summation had influenced the jury. He noted that the jury's failure to convict respondent on certain charges suggested that it had not been improperly swayed by the prosecutor's argument. He also expressed doubt that the plain error standard for constitutional violations in summations should be different from the standard applicable to any other violation at trial to which no objection has been made. App., infra, 10a. REASONS FOR GRANTING THE PETITION Respondent's convictions were reversed because of a comment made by the prosecutor during rebuttal argument. The comment was in direct response to defense counsel's contention that the prosecution had unfairly denied respondent an opportunity to "explain" his actions. Before making the comment, the prosecutor secured a ruling from the district court, out of the presence of the jury. Although defense counsel did not at any time object to the prosecutor's remarks, the court of appeals nonetheless found the prosecutor's comments to be reversible error. The court held, first, that the prosecutor's remarks constituted "a clear violation" of Griffin v. California, 380 U.S. 609 (1965). Second, the court found that the error constituted "plain error" that could be noticed even absent an objection by the defense. The decision below raises two issues of considerable and recurring significance. By applying the rule in Griffin to the prosecutor's rebuttal remarks, the court of appeals wrenched that case from its factual and legal context. Moreover, the court of appeals' misapplication of the Griffin rule is symptomatic of a wider confusion among the circuits generally about the appropriate scope of Griffin. This case presents a proper setting in which to resolve that confusion. In addition, the court of appeals erred in assuming that it had greater authority to notice a constitutional violation -- such as the purported Griffin violation -- than a non-constitutional violation of the sort involved in United States v. Young, 470 U.S. 1 (1985). Nothing in Fed. R. Crim. P. 52(b) or in this Court's treatment of the plain error rule in Young contemplates such a distinction. Moreover, distinguishing between constitutional and non-constitutional errors in applying the plain error rule overlooks the purposes served by the contemporaneous objection rule, to which Rule 52(b) is a narrow exception. Because the circuits are divided on whether Rule 52(b) incorporates a more generous standard of review for constitutional errors, review by this Court is warranted. 1. a. In Griffin v. California, 380 U.S. 609 (1965), the defendant was tried for first-degree murder in a state that permitted the prosecutor to comment upon the defendant's failure to explain or deny any evidence offered against him at trial. When the defendant did not testify, the prosecutor asked the jury to treat the defendant's silence at trial as substantive evidence of his guilt. The trial court added considerable force to the prosecutor's argument by instructing the jury that a defendant "can reasonably be expected to deny or explain * * * facts within his knowledge," and that if he "fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence" (380 U.S. at 610). This Court reversed Griffin's conviction. To permit comments of this sort, the Court held, would "allow( ) the State the privilege of tendering to the jury for its consideration the failure of the accused to testify" (380 U.S. at 613). Such a practice "solemnizes the silence of the accused into evidence against him" (id. at 614). Moreover, the Court held, comment on the failure of a defendant to testify "is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." Ibid. Not every remark by a prosecutor that can imaginably be called a "comment on silence" is proscribed by Griffin. The Court made that point clear in Lakeside v. Oregon, 435 U.S. 333 (1978). There, the Court held that a defendant's rights under Griffin were not violated when the trial court, over the defendant's objection, instructed the jury not to draw any adverse inference from the defendant's failure to testify. The defendant, who had not wished the trial court to refer at all to his failure to take the stand, argued -- much as the court of appeals held in this case -- that Griffin forbids any comment on silence. The Court disagreed. "(F)rom even a cursory review of the facts and the square holding of the * * * case," the Court noted, "the Court (in Griffin) was * * * concerned only with adverse comment, whether by the prosecutor or the trial judge" (435 U.S. at 338-339). More importantly, the Court added, the scope of Griffin cannot be divorced from the Fifth Amendment premises that animated that decision. A necessary element of compulsory self-incrimination, the Court noted, "is some kind of compulsion" (435 U.S. at 339). The Court explained that in Griffin, "unconstitutional compulsion was inherent in a trial where prosecutor and judge were free to ask the jury to draw adverse inferences from a defendant's failure to take the witness stand" (ibid. (footnote omitted)). But not every comment relating to the defendant's failure to testify exerts that same kind of pressure; because a judge's instruction that the jury must draw no adverse inference from the defendant's exercise of his privilege not to testify does not put pressure on the defendant to testify, the Court held that giving that instruction did not violate Griffin. /7/ The question whether a prosecutor's remarks are proscribed by Griffin also depends on the context in which they are made. In Lockett v. Ohio, 438 U.S. 586 (1978), the defendant challenged as a violation of Griffin a prosecutor's remarks that characterized the government's evidence as "unrefuted" and "uncontradicted." This Court held that the remarks did not violate the rule in Griffin, because defense counsel himself had focused the jury's attention on defendant's failure to testify. When viewed against that background, the Court concluded, the prosecutor's argument did not violate the principles of Griffin. The court of appeals in the present case overlooked these limitations on the scope of Griffin. By holding that the prosecutor had violated Griffin simply by referring to petitioner's silence, the court of appeals ignored the principle that a comment violates Griffin only if it asks the jury to treat a defendant's failure to testify as evidence of his guilt. In this case, the prosecutor did not ask the jury to infer respondent's guilt from his failure to testify at trial. Indeed, the prosecutor did not even comment on Robinson's failure to testify; he commented on his freedom to testify, pointing out, in response to defense argument, that the government had not prevented the defendant from telling his side of the story. That is simply not the kind of "comment" proscribed by Griffin. /8/ b. The court of appeals' misunderstanding of Griffin is symptomatic of a wider confusion among the courts of appeals about the scope and proper application of the case. Over the years the rule in Griffin has been expanded by some courts into a rule that forbids a prosecutor even from characterizing the evidence at trial as "uncontradicted" or "unrefuted." The First Circuit, purportedly under the authority of Griffin, has flatly prohibited prosecutors from describing the government's proof in these terms. See, e.g., United States v. Skandier, 758 F.2d 43, 44 (1st Cir. 1985) ("(f)or twenty years we have held it reversible error to state baldly that the government's evidence was uncontradicted"); United States v. Cox, 752 F.2d 741, 745 (1st Cir. 1965). The Seventh Circuit has imposed the same restriction, at least in cases in which the defendant may be the only witness who could have "contradicted" the government's proof. See, e.g., United States ex rel. Burke v. Greer, 756 F.2d 1295, 1300-1301 (7th Cir. 1985); United States v. Wilkins, 659 F.2d 769, 774 (7th Cir.), cert. denied, 454 U.S. 1102 (1981); United States v. Poole, 379 F.2d 645, 649 (7th Cir. 1967) (error to describe evidence as "uncontradicted" even where a witness other than the defendant could have contradicted it). Several other courts have imposed similar restrictions, again relying on Griffin. See, e.g., Raper v. Mintzes, 706 F.2d 161, 164-167 (6th Cir. 1983); Runnels v. Hess, 653 F.2d 1359, 1361-1362 (10th Cir. 1981); United States v. Sanders, 547 F.2d 1037, 1042-1043 (8th Cir. 1976), cert. denied, 431 U.S. 956 (1977). Other circuits, reading Griffin as it was intended, have rejected this broad construction of the case. See, e.g., United States v. Damsky, 740 F.2d 134, 140-141 (2d Cir.), cert. denied, 469 U.S. 918 (1984); United States v. Downs, 615 F.2d 677, 679 (5th Cir. 1980); United States v. Rodriguez, 545 F.2d 829, 832 (2d Cir. 1976), cert. denied, 434 U.S. 819 (1977) ("We have repeatedly held that the prosecutor may comment upon the defense's failure to contradict the government's case."). /9/ We submit that the expansive reading of Griffin to prohibit a prosecutor from characterizing evidence as "uncontradicted" is mistaken and reflects a pervasive misunderstanding of the intended scope of that case. While the rule in Griffin was designed to reduce the pressures on a defendant to testify, the rule cannot fairly be read to shield the defendant from all the consequences of his failure to take the stand. The government, which bears the burden of proof beyond a reasonable doubt, should not be prohibited from describing its proof at trial as uncontradicted simply because the absence of contradiction results in part from the defendant's failure to testify. Otherwise, as Justice Stevens observed in United States v. Hasting, 461 U.S. at 515-516, "the protective shield of the Fifth Amendment (w)ould be converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case." See also United States v. Rodriguez, 556 F.2d 638, 642 (2d Cir. 1977), cert. denied, 434 U.S. 1062 (1978). This case presents an appropriate opportunity in which to resolve the confusion among the circuits over the proper scope to be accorded to the rule in Griffin. 2. After the Court remanded this case with instructions that it be reconsidered in light of United States v. Young, 470 U.S. 1 (1985), the court of appeals adhered to its earlier judgment. It distinguished Young in part on the ground that the summation in Young violated an ethical norm, while the summation in this case abridged a constitutional principle (App., infra, 5a-6a). /10/ That distinction has no basis in the Young decision and is in conflict with this Court's application of the contemporaneous objection rule. Because there is a conflict among the circuits as to whether plain error should be more readily noticed for constitutional claims, review by this Court is warranted. a. The Young case involved a challenge to a prosecutor's rebuttal summation. Prior to the rebuttal, defense counsel had argued that not even the prosecution believed the defendant to be guilty, and that the only person who had behaved with integrity in the case was the defendant. In response, the prosecutor denied counsel's claim that no one sitting at the government table believed the defendant to be guilty. The prosecutor also offered his opinion that defendant's actions constituted a fraud and advised the jurors that, in his opinion, they would not be doing their job if they acquitted the defendant. At no time did defense counsel object. 470 U.S. at 5-6. Because no objections had been made, the Court held that the rebuttal argument must be reviewed under the "plain error" doctrine embodied in Fed. R. Crim. P. 52(b). That rule, the Court observed, "authorizes the Courts of Appeals to correct only 'particularly egregious errors'" (470 U.S. at 15, quoting United States v. Frady, 456 U.S. 152, 163 (1982)) -- in particular, "those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings'" (470 U.S. at 15, quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). Nowhere in Young did this Court intimate that the plain error rule applies differently when constitutional rights are implicated. Indeed, the Court made clear that "(a) per se approach to plain-error review is flawed" (470 U.S. at 17 n.14) and that, instead, "'each case necessarily turns on its own facts'" (id. at 16, quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240 (1940)). How an error is labeled -- constitutional or otherwise -- is beside the point. Rather, to trigger appellate review under Rule 52(b), the Court held, an error "must be more than obvious(,) * * * affect( ) 'substantial rights,' * * * (and) ha(ve) an unfair prejudicial impact on the jury's deliberations" (470 U.S. at 17 n.14). /11/ The distinction drawn by the court of appeals also mistakes the nature of the plain error rule, which stands as a narrow exception to the more basic principle that to preserve an issue -- constitutional or otherwise -- a contemporaneous objection must be lodged. The contemporaneous objection rule serves obvious and salutary purposes. Timely objection affords both the trial court and the prosecutor the opportunity to consider, and perhaps rectify, their decisions and trial tactics while it is still possible to do so. Henry v. Mississippi, 379 U.S. 443, 448 (1965); United States v. Indiviglio, 352 F.2d 276, 280 (2d Cir. 1965( (en banc), cert. denied, 383 U.S. 907 (1966). If a defendant prevails on his objections, he may avert prejudicial error and thus enhance his chances to secure an acquittal from the jury. And if he nonetheless is convicted, his timely objections will have defined the points to be reviewed on appeal and will have obviated the need to reverse a conviction simply because an error that was susceptible of correction was not perceived at trial. /12/ Any distinction between constitutional and non-constitutional error would disserve these purposes of the contemporaneous objection rule. Simply because evidence or argument is challenged on constitutional grounds should not relieve counsel of the duty to bring that objection to the immediate attention of the trial court. There is nothing about the label "constitutional" that reduces the importance of allowing the trial judge to correct error before it affects the jury's verdict. Nor does the fact that an objection can be characterized in constitutional terms diminish the value of framing that issue clearly, both for resolution at the trial level and, if need be, for appellate review. /13/ The court of appeals' distinction also cannot be squared with this Court's application of the contemporaneous objection rule and the plain error exception to that rule. The Court has stated plainly that "(n)o procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it" (Yakus v. United States, 321 U.S. 414, 444 (1944)). Accord Jennings v. Illinois, 342 U.S. 104, 108-109 (1951). Thus, the Court has never hesitated to apply the contemporaneous objection rule, despite the fact that a constitutional claim was thereby foreclosed. See, e.g., Levine v. United States, 362 U.S. 610, 619 (1960) ("(t)he continuing exclusion of the public in this case is not to be deemed contrary to the requirements of the Due Process Clause without a request having been made to the trial judge to open the courtroom at the final stage of the proceeding, thereby giving notice of the claim now made and affording the judge an opportunity to avoid reliance on it"); Segurola v. United States, 275 U.S. 106, 111-112 (1927) (Fourth Amendment challenge to the seizure of evidence waived in the absence of a timely motion to suppress). See also On Lee v. United States, 343 U.S. 747, 749 n.3 (1952). b. While neither the language nor the policies of Rule 52(b) suggest a distinction between constitutional and non-constitutional objections, several courts of appeals have endorsed that distinction in applying the plain error rule. See, e.g., United States v. Shue, 766 F.2d 1122, 1132 (7th Cir. 1985); United States v. Smith, 700 F.2d 627, 633 (11th Cir. 1983); United States v. Tobias, 662 F.2d 381, 388 (5th Cir. 1981), cert. denied, 457 U.S. 1108 (1982); United States v. Brown, 555 F.2d 407, 420 (5th Cir. 1977), cert. denied, 435 U.S. 904 (1978). Other circuits make no such distinction. See, e.g., United States v. Ferguson, 776 F.2d 217, 223 (8th Cir. 1985), cert. denied, No. 85-1254 (Feb. 24, 1986); United States v. Bayko, 774 F.2d 516, 518 (1st Cir. 1985); United States v. Huckaby, 698 F.2d 915, 920 (8th Cir. 1982), cert. denied, 460 U.S. 1070 (1983) ("(g)enerally, constitutional challenges not raised before the trial court are not cognizable on appeal unless they constitute plain error"); United States v. Sachs, 679 F.2d 1015, 1018 (1st Cir. 1982) ("(a)ppellant's newly-raised (constitutional) defenses were known to him at the time of trial; failure to articulate them at any time during those proceedings must constitute a waiver"); United States v. Popejoy, 578 F.2d 1346, 1350 (10th Cir.), cert. denied, 439 U.S. 896 (1978) ("(w)e believe that evidentiary objections with a constitutional footing can be waived in a case like this by failure to object, particularly where the basic factual and legal predicate for them was available"); Shaw v. United States, 403 F.2d 528, 530 (8th Cir. 1968) ("barring plain error, we will not notice errors raised for the first time in the appellate court, including errors involving a defendant's constitutional right"); Indiviglio, 352 F.2d at 280 ("(f)ederal courts, including the Supreme Court, have declined to notice errors not objected to below even though such errors involve a criminal defendant's constitutional rights"). See also United States v. Byers, 740 F.2d 1104, 1130 n.38 (D.C. Cir. 1984) (Robinson, J., concurring in the judgment). The court of appeals in this case cast its lot with those courts that have relaxed the requirements of Rule 52(b) in order to reach constitutional claims that were never raised as objections at trial. Further review by this Court is warranted to address the conflict among the circuits on this issue and to ensure compliance with the principles underlying the contemporaneous objection requirement and Rule 52(b). CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General LAWRENCE S. ROBBINS, Assistant to the Solicitor General DECEMBER 1986 /1/ Respondent was tried together with his wife, Aleida L. Robinson. She was convicted on one mail fraud count and was sentenced to two years' probation. The court of appeals affirmed her conviction (App., infra, 15a-27a). Both respondent and Mrs. Robinson were acquitted on two counts of making false statements to a bank for purposes of obtaining a loan, in violation of 18 U.S.C. 1014. At the close of the evidence at trial, the district court dismissed two other counts charging respondent with making and possessing a destructive device, in violation of 26 U.S.C. 5861. /2/ Tools that respondent had removed from the truck stop garage prior to the fire there were also discovered in respondent's California residence. Tr. 368-372. /3/ Defense counsel made other comments in a similar vein: By the way, all those statements, I don't know how many statements we heard of Mr. Robinson, they were all about the arson. Did they ever give him a chance to explain about these sorts of things, about mail fraud? (Tr. 670). Did they ever give this man an opportunity in their many, many statements they took at the time to say, "Well, I had two bedroom sets( )" (Tr. 670). * * * * * When he came to Tennessee in October, or shortly after the fire, within a month or so, they interviewed him about the arson. * * * * * They never gave him a chance to explain (Tr. 670-671). * * * * * Now, here is what the Government, to be fair with the jury, should have done. They should have taken those items in the Kentucky inventory and just proved them. Why let the defendant disprove them, give him an opportunity to explain? (Tr. 674). /4/ Defense counsel also argued that the jury could not draw any adverse inference from respondent's failure to take the stand. (Tr. 678-679). /5/ The prosecution also sought permission to inform the jury that the government, contrary to defense assertions, had attempted to bring in evidence of other false claims (Tr. 682). Defense counsel objected to that request, and it was denied (Tr. 682-683). /6/ The court of appeals affirmed Mrs. Robinson's conviction on the ground that the prosecutor's remarks were a reference only to respondent's failure to testify and thus did not taint the fairness of her conviction (App., infra, 25a-27a). /7/ In other cases as well, this Court has refused to push Griffin to the limits of its logic. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 317, 319 (1976) (the rule in Griffin does not apply during prison discipline proceedings). See also United States v. Hasting, 461 U.S. 499, 506 n.4 (1983); id. at 515-516 (Stevens, J., concurring) ("the protective shield of the Fifth Amendment should (not) be converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case"). The Court has applied the rule in Griffin only where, as in Griffin itself, the prosecutor had asked the jury to infer the defendant's guilt from his failure to testify. See, e.g., Fontaine v. California, 390 U.S. 593 (1968); Anderson v. Nelson, 390 U.S. 523 (1968); Chapman v. California, 386 U.S. 18 (1967). /8/ The court of appeals also lost sight of the distinction, repeatedly emphasized by this Court, between what is permissible evidence and argument in the government's direct case (or opening summation) and what is permissible evidence and argument in rebuttal. In a variety of contexts the Court has stressed that evidence, or arguments, that may not be proper on direct may become appropriate when, for example, the defendant testifies and puts new matters in issue. See, e.g., Harris v. New York, 401 U.S. 222 (1971) (government may impeach a testifying defendant with confessions taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966)); Jenkins v. Anderson, 447 U.S. 231 (1980) (government may impeach a testifying defendant with his failure to tell his exculpatory story prior to his arrest); Walder v. United States, 347 U.S. 62 (1954) (illegally seized evidence may be used as impeachment material); and Tennessee v. Street, 471 U.S. 409 (1985) (government may offer into evidence a co-defendant's confession, otherwise inadmissible under Bruton v. United States, 391 U.S. 123 (1968), in light of defendant's testimony). These cases make clear that the rules that constrain the government in its direct case do not apply, in haec verba, to matters of rebuttal and impeachment. If the laws were otherwise, the Court has held, "(t)he shield provided by (constitutional decisions could) be perverted into a license to use perjury by way of a defense" (Harris, 401 U.S. at 226). Only by giving the government additional leverage to respond in rebuttal can the jury discharge its function of "evaluating the truth of (a defendant's) testimony" (Street, 471 U.S. at 415). /9/ The state courts are in similar disarray on whether Griffin should be read to preclude prosecutors from characterizing the government's proof as "uncontradicted." See, e.g., Todd v. State, 598 S.W.2d 286, 294 (Tex. Crim. App. 1980); People v. Ganter, 56 Ill. App. 3d 316, 326, 371 N.E.2d 1072, 1079 (1977); State v. Messinger, 8 Wash. App. 829, 840, 509 P.2d 382, 390 (1973), cert. denied, 415 U.S. 926 (1974); Ross v. State, 268 Ind. 471, 474, 376 N.E.2d 1117, 1118 (1978), cert. denied, 439 U.S. 1080 (1979). /10/ The court of appeals also distinguished Young on the ground that in that case the prosecutor had invoked his own credibility whereas here the prosecutor had somehow impugned the respondent's credibility (App., infra, 8a). There is no basis for this distinction. Nothing in the prosecutor's summation in this case adverted, even obliquely, to respondent's credibility. The court of appeals also held (ibid.) that the evidence in this case was not as overwhelming as in Young, a conclusion that the court derived from the jury's failure to convict respondent on all charges. This is a plain misreading of Young. In Young, as in this case, the jury acquitted the defendant of one of the charges, a fact that this Court regarded as "reinforc(ing) our conclusion that the prosecutor's remarks did not undermine the jury's ability to view the evidence independently and fairly." 470 U.S. at 18 n.15. Other circuits have made the same point. See, e.g., United States v. Mandelbaum, 803 F.2d 42, 46 (1st Cir. 1986); United States v. Carson, 702 F.2d 351, 368 (2d Cir.), cert. denied, 462 U.S. 1108 (1983); United States v. Matalon, 445 F.2d 1215, 1219 (2d Cir.), cert. denied, 404 U.S. 853 (1971). /11/ Nothing in the language of Rule 52(b) warrants the distinction drawn by the court of appeals. Rule 52(b) permits a reviewing court to notice "(p)lain errors or defects affecting substantial rights" even though no objection has been made at trial. On its face, the rule makes no distinction between constitutional and non-constitutional claims; depending on the nature of the right and the particular factual setting, constitutional or non-constitutional errors may be substantial or insubstantial. /12/ As the Court has observed, "(a) contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest (and) * * * (i)t enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question. * * * A contemporaneous-objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation." Wainwright v. Sykes, 433 U.S. 72, 88 (1977). /13/ The failure to make a contemporaneous objection is particularly striking in the present case. At the close of defense counsel's summation, the prosecutor moved to make two distinct arguments in rebuttal: first, that the government had not kept respondent from testifying; and second, that the government had attempted at trial to offer certain evidence whose absence from the case defense counsel had assailed in his summation. Defense counsel objected only to the second proposed argument, and the trial judge sustained the objection. Conspicuously, counsel made no objection to the prosecutor's request that he be allowed to rebut the contention that the government had kept respondent from telling his side of the story. APPENDIX