Jury Instructions – Plain Error

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Criminal

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and BAUER and RIPPLE, Circuit Judges

Jury Instructions – Plain Error

No. 14-2449 USA Michael McClellan

Where plain error not found for providing jury instruction with unsettled elements.

Nothing in our analysis in Li establishes that a specific in‐ tent instruction is required for violations of § 1324(a)(1)(A)(iii), much less that the failure to give such an instruction was plain error. Indeed, we noted on more than one occasion in Li that there was no law from this circuit holding that § 1324 incorporates a specific intent requirement and, relatedly, no circuit law requiring a specific intent instruction. We also observed that counsel’s general intent instruction was consistent with the approach of several other circuits. Li, 648 F.3d at 528–29 (citing, among other authorities, United States v. Khanani, 502 F.3d 1281, 1287, 1289 (11th Cir. 2007), in which the court concluded that a § 1324(a)(1)(A)(iii) instruction, similar in all material respects to the one given here, “correctly addressed all elements of the offenses”). On plain error review, we cannot grant relief “unless the error is clear under current law.” Olano, 507 U.S. at 734. Because the “operative legal question”—whether § 1324(a)(1)(A)(iii) contains a specific intent requirement—was “unsettled,” the district court did not commit plain error. United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009) (per curiam) (internal quotation marks omitted).

Affirmed

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