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00-973 United States v. Vonn

By: dmc-admin//March 11, 2002//

00-973 United States v. Vonn

By: dmc-admin//March 11, 2002//

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Relying on the canon that expressing one item of a commonly associated group or series excludes another left unmentioned, Vonn claims that Rule 11(h)’s specification of harmless-error review shows an intent to exclude the plain-error standard with which harmless error is paired in Rule 52. However, this canon is only a guide, whose fallibility can be shown by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion of its common relatives. Here, the harmless- and plain-error alternatives are associated together in Rule 52, having apparently equal dignity with Rule 11(h), and applying by its terms to error in the application of any other Rule of Criminal Procedure. To hold that Rule 11(h)’s terms imply that the latter half of Rule 52 has no application to Rule 11 errors would amount to finding a partial repeal of Rule 52(b) by implication, a result sufficiently disfavored, Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017, as to require strong support. Support, however, is not readily found, for Vonn has merely selected one possible interpretation of the supposedly intentional omission of a Rule 52(b) counterpart while logic would equally allow a reading that, without a plain-error rule, a silent defendant has no right of review on direct appeal.

224 F.3d 1152, vacated and remanded.

Local effect:

The decision changes the standard of review in the Seventh Circuit from the harmless-error analysis applied in United States v. Cross, 57 F.3d 588 (7th Cir. 1995), to plain-error; but leaves intact the policy of looking to the entire record in reviewing a Rule 11 violation, United States v. Lovett, 844 F.2d 487 (7th Cir. 1988).

Souter, J.; Stevens, J., concurring in part and dissenting in part.

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