Appellate Case: 23-3095 Document: 010111093774 Date Filed: 08/13/2024 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 13, 2024
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-3095
MICHAEL R. CAPPS,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:21-CR-10073-EFM-1)
_________________________________
Jacob Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender with him on the briefs), Denver, Colorado for Defendant-Appellant.
Carrie N. Capwell, Assistant United States Attorney (Kate E. Brubacher, United States
Attorney with her on the brief), Kansas City, Kansas for Plaintiff-Appellee.
_________________________________
Before HARTZ, TYMKOVICH, and BACHARACH, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Defendant Michael Capps was convicted on 12 counts related to fraudulently
obtaining federal funds intended for COVID-19 relief. He appeals his convictions on the
ground that the district court reversibly erred by reading the jurors their instructions only
Appellate Case: 23-3095 Document: 010111093774 Date Filed: 08/13/2024 Page: 2
at the outset of the presentation of evidence without doing so again after the close of
evidence. We conclude that he did not preserve his argument that Federal Rule of
Criminal Procedure (Criminal Rule) 30(c) required the court to instruct the jury after the
close of evidence and that he cannot prevail under plain-error review. We therefore affirm
the judgment below.
I. BACKGROUND
A federal grand jury indicted Mr. Capps on 19 counts including bank fraud, false
statements to a bank and the Small Business Administration, wire fraud, and money
laundering. The indictment alleged that he obtained COVID-19 relief on behalf of three
entities (two businesses that he owned and one foundation of which he was a member) by
making false representations regarding the workforce of each.
At a pretrial conference the district court discussed its intention to read the jury
instructions after jury selection and before presentation of evidence and to give the jurors
individual copies of the instructions for reference during trial. It explained that in its
previous experience using this practice, “jurors like it. And I’ve found that they take notes
on the instructions as we go through the trial because of that.” R., Vol. III at 24. It noted
its concern that reading all the instructions before trial could be prejudicial in a criminal
case if a charge gets dropped or dismissed during the trial, and it asked for counsel’s
input. The prosecutor said that he had participated in a case in which the court adopted
this practice and “ended up liking it” because it provided “a mental road map to the jury.”
Id. at 25. Defense counsel said, “I kind of like it.” Id. The court announced that “we’ll
plan to read the instructions in advance.” Id. During the conference the court also
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explained that because of the court’s crowded schedule and the need to accommodate the
impending retirement of one of the attorneys, the trial would proceed on Monday,
Wednesday, Thursday, the following Monday, and the Wednesday thereafter if necessary.
Trial began on Monday, December 12, 2022. After the jurors were sworn in, the
court delivered the jury’s preliminary instructions and provided them with notebooks and
a copy of the primary instructions. The court then read all 40 primary instructions to the
jury before the introduction of any evidence.
At the end of the third day of trial (Thursday, December 15), the government
inquired whether the court intended to reread the jury instructions. The court replied,
“Oh, believe me, not a chance.” Id. at 948. Defense counsel responded that he and the
prosecutor “both thought you were going to reread them.” Id. On the following Monday
defense counsel filed a motion for the court to reread eight of the jury instructions
(numbers 3, 5–9, 23, and 27). Id., Vol. I at 121. Instruction No. 3 explained, “An
indictment is simply a formal method of accusing a defendant of a crime” rather than
evidence. Id. at 142. Instruction No. 5 directed that each count should be considered
separately. Instruction No. 6 said that Mr. Capps’s not-guilty pleas to each of the charges
“put in issue every element of the crimes charged, and therefore it is the burden and
responsibility of the government to prove beyond a reasonable doubt every element of the
crimes charged.” Id. at 145. Instruction No. 7 explained the presumption of innocence.
Instruction No. 8 described the government’s burden of proof beyond a reasonable doubt.
Instruction No. 9 instructed the jury to consider only the crimes charged. Instruction No.
23 explained the good-faith defense. And Instruction No. 27 explained how the jury
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should consider evidence of Mr. Capps’s good character. The motion to reread the eight
instructions stated the following grounds in its support:
1. These eight instructions are key to Defendant’s defense, and there would
be no prejudice in re-reading them.
2. Counsel for the Government and counsel for the defense believed at the
outset of trial that the Court was entertaining reading the instructions at the
beginning and the end of trial.
3. Defense submits that with two recesses in the midst of trial, it would assist
the jury in hearing the above-referenced instructions closer in time to
deliberations. Such reading would also serve Defendant’s right to due process
and a fair and just trial.
Id. at 121.
When trial resumed that day, the court denied the motion to reread the eight
instructions, saying, “I’ve a painful memory of a 45-minute session in which I read
instructions. . . . [A]ctually, it does compare to a Stephen King novel, is a bit of a horror
to go through that. I think it would be error for me to single out some instructions as
opposed to others. I think it would be cruel and inhumane to reread them all again.” Id.,
Vol. III at 960. But it told defense counsel that “you may refer to them during closing
arguments if you would like, and I’d invite you to do so if you think they’re important.”
Id.
During closing arguments defense counsel specifically referenced three jury
instructions. He mentioned “Instruction No. 6,” emphasizing the government’s burden to
prove “every element . . . beyond every reasonable doubt.” Id. at 1144–45. He mentioned
instruction “No. 7,” emphasizing “[t]he presumption of innocence.” Id. at 1145. And he
mentioned the good-faith defense as “among the instructions of the law that . . . you
swore you’d apply.” Id. at 1146. He explained that the defense applies “if a plan or a
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scheme [was] not carried out with an intent to defraud, if it was devised or carried out in
good faith with an honest belief in the truth of the representation made” and that “[i]t’s
not on him to prove it. It’s on them to disprove it.” Id. at 1147.
After closing arguments the court told the jury that all the instructions it had
previously read continued to apply, that upon entering the jury room the second thing
they should do (after picking a foreperson) is read the court’s instructions, and that they
must follow the court’s instructions throughout their deliberations. The jury did not reach
a verdict that evening, so the court discharged the jury until Wednesday morning to
resume deliberations.
The jury returned on Wednesday, December 21. The court informed the jury that it
had brought in an alternate juror because one juror was no longer available. It said that
the jurors “now have an obligation . . . to at least reexamine” all decisions they had
already made and “make sure that the alternate juror who’s been added to your ranks has
an ability to participate in those decisions.” Id. at 1174.
Later that day the jury returned its verdicts. It found Mr. Capps guilty on 12
counts, and not guilty on 6 counts. The court sentenced Mr. Capps to 27 months’
imprisonment and two years of supervised release.
II. DISCUSSION
On appeal Mr. Capps argues that the district court reversibly erred by refusing to
reinstruct the jury after the close of evidence. He relies on Criminal Rule 30(c), which
states, “The court may instruct the jury before or after the arguments are completed, or at
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both times.” According to Mr. Capps, the rule requires the delivery of instructions
“immediately before or after closing arguments.” Aplt. Br. at 14.
We first address whether Mr. Capps preserved his Criminal Rule 30(c) argument
before the district court and conclude that he did not and that plain-error review therefore
applies. We then explain that Mr. Capps cannot prevail on plain-error review because he
has not shown that any error was plain and affected the outcome of the proceeding.
Finally, we reject his argument that the district court abused its discretion by not
reinstructing the jury after the close of evidence even if it was not obligated to do so by
Criminal Rule 30(c).
A. Preservation
We must first discuss what rule governs preservation in this case and what that
rule means. Because the issue before us concerns jury instructions, we look first at
Criminal Rule 30(d), the section of Rule 30 (“Jury Instructions”) entitled “Objections to
Instructions.” The relevant sentence of that provision states: “A party who objects to any
portion of the instructions or to a failure to give a requested instruction must inform the
court of the specific objection and the grounds for the objection before the jury retires to
deliberate.” Fed. R. Crim. P. 30(d). The plain language is clear that a party who objects to
the failure to give a requested instruction must inform the court both of its specific
objection and the grounds for the objection. If the party asserts a new legal theory on
appeal in support of its objection to a failure to give a requested instruction, that
argument is unpreserved. See United States v. Hunt, 82 F.4th 129, 138–39 (2d Cir. 2023)
(objection to jury instruction on the second element of a charged offense was not
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preserved under Criminal Rule 30(d) because defendant’s only objection to the jury
instructions pertained to the first element); United States v. Peterson, 538 F.3d 1064,
1071 (9th Cir. 2008) (defendants “objected to the jury instruction on different grounds
below than they [did] on appeal” and therefore did not preserve their objection under
Criminal Rule 30(d)); United States v. Canino,
949 F.2d 928, 940 (7th Cir. 1991)
(defendants’ objection to the court’s failure to give a proposed instruction did not
preserve their argument that the court’s formulation of the instruction failed to address
their venue-based theory of defense because their proposed instruction did not “actually
focus attention” on the venue issue). In this appeal Mr. Capps is claiming that the district
court’s failure to repeat all, or at least part, of its jury instructions after the close of
evidence violated Criminal Rule 30(c). But nothing said by counsel during trial
referenced that rule, much less argued that the rule required reinstructing the jury after the
close of evidence. Thus, the issue was not preserved.
We note, however, that even though mere proximity suggests that Criminal Rule
30(d) applies to an alleged violation of Criminal Rule 30(c), the parties’ appellate
arguments on preservation cite only Criminal Rule 51(b), the general rule regarding
“Preserving a Claim of Error,” which states: “A party may preserve a claim of error by
informing the court—when the court ruling or order is made or sought—of the action the
party wishes the court to take, or the party’s objection to the court’s action and the
grounds for that objection.” We therefore discuss that rule as well as Rule 30(d).
Our general caselaw on preservation holds that if a party asserts on appeal a
ground for a request or objection that it did not bring to the district court’s attention, that
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ground is unpreserved. “This court has repeatedly declined to allow parties to assert for
the first time on appeal legal theories not raised before the district court, even when they
fall under the same general rubric as an argument presented to the district court.” United
States v. Bacon, 950 F.3d 1286, 1292 (10th Cir. 2020) (internal quotation marks omitted);
see, e.g., United States v. A.B.,
529 F.3d 1275, 1279 n.4 (10th Cir. 2008) (“[The
defendant] was obliged to inform the district court of all of the theories under which he
claimed an entitlement to relief, in order to preserve those theories for appellate
review.”). Criminal Rule 51(b) codifies this general principle. See 3B Charles Alan
Wright & Arthur R. Miller, Fed. Prac. & Proc. Crim. § 843 (4th ed. 2024) (“It is not
enough simply to let the court know what action is desired [to preserve a claimed error
under Criminal Rule 51(b)]. The rule requires that counsel must also make known the
grounds therefor[].” (internal quotation marks omitted)).
But Mr. Capps reads Criminal Rule 51(b) differently, arguing that a party
preserves a claim for error simply by informing the court of the action he wishes it to take
without any need to state the grounds for the request for action. This is not an off-the-wall
reading of the rule. Indeed, if one ignores history and the fundamentals of sound court
procedure, his reading would likely be the preferred reading, in light of general principles
regarding construction of language and punctuation. Rule 51(b) states that a party may
preserve a claim of error “by informing the court . . . of the action the party wishes the
court to take, or the party’s objection to the court’s action and the grounds for that
objection.” Fed. R. Crim. P. 51(b) (emphasis added). The placement of the comma and
the use of the language “the grounds for that objection” instead of “the grounds for that
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request for action or objection” indicate that there are two alternatives for preserving
error (1) inform the court of the action the party wishes it to take or (2) object to the
court’s action and state the grounds for that objection.
A moment’s reflection, however, suggests how odd this dichotomy would be.
When a request to the district court is rejected, the requesting party ordinarily objects to
the denial. Does the objection to the denial need to be supported by a ground for the
objection? Or do we just ignore the objection? Does the issue of preservation turn on the
semantics of whether the issue is framed as a request to act or as an objection to the
failure to act? In any event, the language of Rule 51(b) does not expressly abrogate the
traditional and well-founded proposition that a ground for relief is not preserved for
appeal unless presented (if possible) to the district court. To be sure, courts should be
extraordinarily cautious about imposing procedural requirements not present in rules
covering the same subject matter. What makes this matter before us exceptional,
however, is that the problematic language we are confronting was introduced as part of
the restyling of the Federal Rules (a highly successful project that was well worth the
effort even if a few problems were unintentionally created), which was not intended to
change the substance of any of the restyled rules, as was declared in the advisory
committee note to every restyled rule. See, e.g., Constien v. United States, 628 F.3d
1207, 1215 n.7 (10th Cir. 2010) (relying on advisory committee note stating that
restyled rule was intended “to be stylistic only” and not to make any substantive change
as ground for construing new language to convey what was clear in prior version of rule
(internal quotation marks omitted)).
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A little history is informative and persuasive. It reveals that (1) the natural reading
of the versions of Criminal Rule 51 before the recent restyling is contrary to Mr. Capps’s
position, (2) the restyling was not intended to change the substance of the rule, (3)
Criminal Rule 51 has long been intended to track its civil counterpart, Federal Rule of
Procedure (Civil Rule) 46, and (4) when Civil Rule 46 was restyled after the restyling of
Criminal Rule 51, it adopted language clearly contrary to Mr. Capps’s argument.
Criminal Rule 51 was adopted in 1944. See Fed. R. Crim. P. 51, advisory
committee’s notes to 1944 adoption. The original version of the rule said that to preserve
an issue, “it is sufficient that a party, at the time the ruling or order of the court is made or
sought, makes known to the court the action which he desires the court to take or his
objection to the action of the court and the grounds therefor.” Fed. R. Crim. P. 51 (1946).
The Advisory Committee’s Notes to its adoption said that the rule is “practically
identical” to Civil Rule 46 because “[i]t relates to a matter of trial practice which should
be the same in civil and criminal cases in the interest of avoiding confusion.”1 Fed. R.
1
At the time of the adoption of the original version of Criminal Rule 51, Civil Rule
46 stated:
Formal exceptions to rulings or orders of the court are unnecessary; but
for all purposes for which an exception has heretofore been necessary it
is sufficient that a party, at the time the ruling or order of the court is
made or sought, makes known to the court the action which he desires the
court to take or his objection to the action of the court and his grounds
therefor; and, if a party has no opportunity to object to a ruling or order
at the time it is made, the absence of an objection does not thereafter
prejudice him.
Fed. R. Civ. P. 46 (1939).
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Crim. P. 51, advisory committee’s notes to 1944 adoption. We note that the absence of a
comma before the “or” that separates the two clauses that identify the means of
preserving objections (“makes known to the court the action which he desires the court to
take or his objection to the action of the court”) suggests that, under the original rule,
parties that made known to the court the action they desired the court to take and parties
that objected to an action of the court were both required to make known “the grounds
therefor.” See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts
161–66 (2012) (providing examples).
Both Criminal Rule 51 and Civil Rule 46 were amended in 1987. The Advisory
Committee’s Notes to both amendments said that the amendments were technical with no
substantive change intended. It appears that the only change made to the language
regarding how to preserve an issue was to make it gender neutral. See Fed. R. Crim. P. 51
(1988) (“it is sufficient that a party, at the time the ruling or order of the court is made or
sought, makes known to the court the action which that party desires the court to take or
that party’s objection to the action of the court and the grounds therefor” (emphasis
added)); Fed. R. Civ. P. 46 (1988) (“it is sufficient that a party, at the time the ruling or
order of the court is made or sought, makes known to the court the action which the party
desires the court to take or the party’s objection to the action of the court and the grounds
therefor” (emphasis added)).
Criminal Rule 51 was most recently amended in 2002. The Advisory Committee’s
Notes explained that the rule was revised “as part of the general restyling of the Criminal
Rules” and that the changes were “intended to be stylistic only.” It was in this amendment
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that a comma was added between the two clauses that identify the means of preserving
objections, and the phrase “grounds therefor” was revised to “grounds for that objection.”
Compare Fed. R. Crim. P. 51(b) with Fed. R. Crim. P. 51 (1988).
Five years later, Civil Rule 46 was amended. The Amendment was also intended
to be “stylistic only.” Fed. R. Civ. P. 46, advisory committee’s notes to 2007 amendment.
But the restyling made clear what the change to Criminal Rule 51 muddled. As amended,
Civil Rule 46 now provides that “a party need only state the action that it wants the court
to take or objects to, along with the grounds for the request or objection.” Fed. R. Civ. P.
46. The phrase “along with the grounds for the request or objection” makes it
unambiguous that the party must state its grounds for the requested action.
Thus, our understanding of Criminal Rule 51(b)—that when a party informs the
court of an action it wishes the court to take, the party must also inform the court of the
grounds for that request for action in order to preserve a claim of error—is the only way
to harmonize the rule with its original iteration, which has not been intentionally changed
substantively. And it is the only way to harmonize the rule with Civil Rule 46, which it
has always intended to mirror.2
2
We are aware that the Supreme Court in Holguin-Hernandez v. United States,
589 U.S. 169, 170–71 (2020), added bracketed numerals to the quoted language in
Criminal Rule 51(b) when it wrote that the Federal Rules “provide two ways” for a
criminal defendant to make his objection known: “‘[a] party may preserve a claim of
error by informing the court … of [1] the action the party wishes the court to take, or [2]
the party’s objection to the court’s action and the grounds for that objection.’” But we do
not read that opinion as adopting Mr. Capps’s construction of the rule. The holding of the
opinion was only that “[a] defendant who, by advocating for a particular sentence,
communicates to the trial judge his view that a longer sentence is ‘greater than necessary’
has thereby informed the court of the legal error at issue in an appellate challenge to the
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Our understanding is also consistent with common sense and the rationale
underlying the doctrine of preservation. The Supreme Court has said that the requirement
of preservation “serves to induce the timely raising of claims and objections, which gives
the district court the opportunity to consider and resolve them. That court is ordinarily in
the best position to determine the relevant facts and adjudicate the dispute.” Puckett v.
United States, 556 U.S. 129, 134 (2009). This preservation requirement also prevents
such litigants from “sandbagging” by not making an argument in district court and later
raising the error if the district court rules against them.
Id. (internal quotation marks
omitted). If there is a good reason for a party’s objection or request, the district court is
most likely to correct an error if that reason is presented to it. We see no principled
ground for the distinction that Mr. Capps’s reading would draw between a request for
judicial action and an objection to that action. (We have already noted that a distinction
between a request and an objection will often be largely semantic. For example, in this
case is the alleged error the failure to grant the request to reinstruct or the overruling of
the objection to not reinstructing?)
substantive reasonableness of the sentence. He need not also refer to the standard of
review.”
Id. at 174–75. The Court explicitly declined “to decide when a party has
properly preserved the right to make particular arguments supporting its claim that a
sentence is unreasonably long.”
Id. at 175. That issue would have already been decided if
the Court had said that all the defendant needed to do to preserve all arguments regarding
the reasonableness of the sentence was to request a shorter sentence. At the least, the
Court left open whether preservation required the defendant to give grounds for a request
that the court take a particular action.
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Thus, under either preservation rule—Criminal Rule 30(d) or 51(b)—the parties
must inform the court of the grounds for their request or objection in order to preserve a
claim of error.
Here, Mr. Capps did not inform the court of the grounds for his request to
reinstruct the jury that he now pursues on appeal. When the government brought up the
issue of whether the court would reread the instructions and the court said that it would
not, defense counsel said only that he had spoken to the government’s counsel “and we
both thought you were going to reread them.” R., Vol. III at 948. Defense counsel did not
mention Criminal Rule 30(c) or say anything that might indicate Mr. Capps’s current
position that there is a procedural requirement to deliver instructions immediately before
or after closing argument.
And his motion to reread eight instructions came no closer to bringing Criminal
Rule 30(c) to the court’s attention. The arguments made in the motion—that the eight
instructions are “key to Defendant’s defense,” that counsel for both sides believed the
instructions would be reread, and that with “two recesses in the midst of trial” rereading
the instructions would assist the jury and serve Mr. Capps’s rights to due process and a
fair trial—similarly did not speak to any requirement of the rules of procedure. R., Vol. I
at 121. On the contrary, the motion’s emphasis on eight specific instructions and the
particular trial schedule would indicate that the argument was not based on a generally
applicable procedural requirement.3
3
Although he does not mention this on appeal, we note that Mr. Capps moved for
a new trial after his conviction and cited Criminal Rule 30(c) in that motion. R., Vol. I at
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Mr. Capps’s reply brief cites three cases in which courts held that an issue was
preserved even though the party did not explicitly cite the law at issue. But these cases
stand only for the proposition that an objection can be adequately preserved by bringing
the grounds for that objection to the court’s attention even when the party does not cite
the specific legal authority they cite on appeal. See Baca v. Dep’t of the Army, 983 F.3d
1131, 1140 (10th Cir. 2020) (discharged employee challenging propriety of discharge can
cite new legal authority for the position advanced below if it is not a new theory of relief;
employee had argued that his conduct was justified as whistleblowing and on appeal cited
government policies requiring him to investigate and report incidents of workplace
violence); United States v. Johnson,
710 F.3d 784, 788 (8th Cir. 2013) (defendant
adequately preserved argument that admission of police report at revocation proceeding
violated his right to due process even though he did not cite Criminal Rule 32.1, which
codifies the minimal requirements of due process); United States v. Gray,
410 F.3d 338,
347 (7th Cir. 2005) (an objection that did not cite the specific rule at issue was preserved
when “[i]t was clear to everyone at the hearing that the parties were arguing about” that
238 (“Whereas Rule 30(c) allows the Court to instruct the jury before or after the
arguments are completed or at both times, the 10th Circuit has explicitly stated its
preference to instruct the jury after the close of the evidence.” (citing United States v.
Starks,
34 F.4th 1142, 1163 (2022)). But it is not cited for the proposition that it required
instructing the jury after the close of evidence. On the contrary, the motion seems to
assume that the rule permitted what the district court did and instead argues that circuit
precedent favors giving instructions after close of the evidence. The district court denied
the new-trial motion as untimely and on the merits. But this motion would not preserve
his claim of error anyway because Criminal Rule 51(b) requires the issue to be raised
“when the court ruling or order is made or sought” and Criminal Rule 30(d) requires the
issue to be raised “before the jury retires to deliberate.”
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rule (internal quotation marks omitted)). As we have said, Mr. Capps did nothing to bring
the grounds that he now relies on to the court’s attention.
Thus, Mr. Capps’s claim of error based on Criminal Rule 30(c) was not preserved
in the court below.4 We therefore review his argument for plain error. See Fed. R. Crim. P.
52(b) (“A plain error that affects substantial rights may be considered even though it was
not brought to the court’s attention.”).
B. Plain-Error Review
We will reverse on plain-error review only if “(1) there is error; (2) that is plain;
(3) that affects substantial rights, or in other words, affects the outcome of the
proceeding; and (4) substantially affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir. 2013). We
first address, without deciding, whether the district court erred by not rereading the
instructions after the close of evidence. We then conclude that Mr. Capps cannot prevail
under the second and third prongs of plain-error review.
4
Mr. Capps may also be making two further arguments regarding preservation.
First, he says that his challenge to the failure to reread the instructions was
“preserved because the district court expressly addressed the issue.” Aplt. Reply Br.
at 4. But the court made no mention of Criminal Rule 30(c). Second, he contends that
it would have been futile for him to complain about the failure to reinstruct. But a
litigant is excused under the “futility” exception to the objection requirement only “if
the district court is aware of the party’s position and it is plain that further objection
would be futile, where the litigant’s position was clearly made to the district court.”
Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1172 (10th Cir. 2003) (internal
quotation marks and brackets omitted). That exception has no relevance here since,
again, Mr. Capps never mentioned Criminal Rule 30(c).
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Again, under Criminal Rule 30(c), “The court may instruct the jury before or after
the arguments are completed, or at both times.” The government argues that the plain
meaning of “before or after the arguments are completed” is that the trial court has “wide
discretion” on the timing of instructions and is not required to instruct the jury
immediately before or after closing arguments. Aplee. Br. at 11. Mr. Capps argues that
“the plain language of the rule clearly implies temporal proximity with closing
arguments” and that “the most logical reading of the rule is that the jury instructions must
be given right before or right after closing arguments.” Aplt. Br. at 15. Mr. Capps’s
argument finds support in common parlance, comparison to other criminal rules, the
history of the rule, and potential problems with the procedure employed in this case.
First, in common parlance, doing something “before or after” a specified event
often suggests temporal proximity to that event—not literally any time. See Aplt. Reply
Br. at 8. For example, the question, “Shall we get drinks before or after dinner on Friday
evening?” would certainly not be understood as a suggestion that the parties get drinks
any time before or after dinner on Friday evening, such as Thursday evening or Sunday
afternoon. Rather, it is a suggestion that they get drinks either right before or right after
dinner.
Moreover, comparison to other criminal rules suggests that Criminal Rule 30(c)
would have used the phrase “any time” if its intention was to permit the delivery of
instructions at literally any time. The criminal rules often use the phrase “any time” to
indicate something may occur at any time. See, e.g., Fed. R. Crim. P. 7(e) (“[T]he court
may permit an information to be amended at any time before the verdict . . . .” (emphasis
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added)); Fed. R. Crim. P. 12(c)(2) (“At any time before trial, the court may extend or
reset the deadline for pretrial motions.” (emphasis added)); Fed. R. Crim. P. 23(b)(2) (“At
any time before the verdict, the parties may, with the court’s approval, stipulate in writing
[to a smaller jury] . . . .”) (emphasis added)); Fed. R. Crim. P. 32(i)(1)(D) (“At
sentencing, the court: may, for good cause, allow a party to make a new objection at any
time before sentence is imposed.” (emphasis added)); Fed. R. Crim. P. 32.2(b)(4)(A) (“At
sentencing—or at any time before sentencing if the defendant consents—the preliminary
forfeiture order becomes final as to the defendant.” (emphasis added)); Fed. R. Crim. P.
32.2(b)(7) (“At any time before entry of a final forfeiture order, the court . . . may order
the interlocutory sale of property alleged to be forfeitable.” (emphasis added)).
In addition, the history of Criminal Rule 30(c) supports Mr. Capps’s reading.
Before the 1987 Amendments to Criminal Rule 30, the rule required that the jury be
instructed after closing arguments. See Fed. R. Crim. P. 30, advisory committee notes to
1987 amendments; see also Fed. R. Crim. P. 30 (1966) (“[T]he court shall instruct the
jury after the arguments are completed.”). After the 1987 Amendment, the rule said, “The
court may instruct the jury before or after the arguments are completed or at both times.”
Fed. R. Crim. P. 30 (1988). And the Advisory Committee Notes explained that the rule
was amended to permit instructions before closing arguments in the discretion of the trial
court, noting that “[i]n some districts, usually where the state practice is otherwise, the
parties prefer to stipulate to instruction before closing arguments.” These States, the
Notes said, permit courts to instruct the jury before closing arguments so that the parties
have an opportunity to argue using the exact language used in the instructions. The Notes
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specifically referenced Missouri, whose rules of criminal procedure at that time required
reading the instructions to the jury “[a]t the close of all evidence.” Mo. R. Crim. P. 28.02
(1986). The Notes also said that by permitting the court to instruct the jury before or after
arguments or both, the amendment “assures that the court retains power to remedy
omissions in pre-argument instructions or to add instructions necessitated by the
arguments.”
The Advisory Committee Notes to the 1987 Amendment appear consistent with
Mr. Capps’s view that the instructions must be read close in time to closing arguments.
First, the Notes indicate that the rule was amended to permit courts to follow state
procedure regarding jury instructions and referenced a specific state procedure that
required delivering instructions “[a]t the close of all evidence,” Mo. R. Crim. P. 28.02
(1986), which is perhaps indicative of the type of procedure that the Committee had in
mind. Second, the explanation that the Amendment assures that courts retain the power to
add instructions “necessitated by the arguments” but not by the evidence suggests that it
does not contemplate instructions being given before the presentation of evidence. If
instructions could be given before the close of evidence, surely there would be times
when the presentation of certain evidence would necessitate the addition of special
instructions, yet the Amendment is silent as to that circumstance.
On the other hand, we note that Mr. Capps’s interpretation of Criminal Rule 30(c)
is somewhat undermined by comparison with its companion civil rule, Civil Rule
51(b)(3). When Criminal Rule 30 was adopted in 1944, the Advisory Committee Notes
explained that the rule “corresponds to Rule 51 of the Federal Rules of Civil Procedure”
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and that “on a point such as instructions to juries there should be no difference in
procedure between civil and criminal cases.” The version of Civil Rule 51 that was in
effect at the time provided that “the court shall instruct the jury after the arguments are
completed,” Fed. R. Civ. P. 51 (1939), the same language used in Criminal Rule 30
before the 1987 Amendment. See Fed. R. Crim. P. 30 (1966) (“[T]he court shall instruct
the jury after the arguments are completed.”).
Like Criminal Rule 30, Civil Rule 51 was amended in 1987. In language
functionally equivalent to Criminal Rule 30, it provided: “The court, at its election, may
instruct the jury before or after argument, or both.” Fed. R. Civ. P. 51 (1988). And, similar
to the Advisory Committee’s Notes to the 1987 Amendment of Criminal Rule 30, the
Advisory Committee’s Notes explained that the Amendment would permit counsel to
deliver their arguments in light of the precise words given in the instructions and
specifically referenced the Missouri system. See Fed. R. Civ. P. 51, advisory committee’s
notes to 1987 amendment. Thus, Civil Rule 51 and Criminal Rule 30 were practically
identical both before and after their 1987 Amendments.
But Civil Rule 51 was amended again in 2003 to “reflect[] common practice.” See
Fed. R. Civ. P. 51, advisory committee’s notes to 2003 amendment. After that
Amendment the rule provided that the court “may instruct the jury at any time after trial
begins and before the jury is discharged.” Fed. R. Civ. P. 51(b)(3) (2006). And after being
amended again in 2007 as part of the general restyling of the Civil Rules (so the changes
were “intended to be stylistic only,” Fed. R. Civ. P. 51, advisory committee’s notes to
2007 amendment), it now provides that the court “may instruct the jury at any time before
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the jury is discharged.” Fed. R. Civ. P. 51(b)(3). Thus, it no longer includes any reference
to closing arguments and therefore contains no language suggesting that instructions must
be delivered close in time to closing arguments.
We see no reason why the civil and criminal rules should diverge on the matter of
the timing of instructions, so interpreting Criminal Rule 30(c) to mirror Civil Rule
51(b)(3) would be reasonable. But because only the civil rule was amended to “reflect[]
common practice” in 2003, we cannot say with assurance that the rules were intended to
be identical in function.
Finally, we should note some concerns one may have with reading instructions
aloud to the jury before presentation of the evidence but not after the close of evidence.
First, as the district court recognized in this case, confusion, even prejudice, may result if
some charges are dismissed before the close of evidence. Second, instructing the jury on
the governing law at the outset of trial may encourage jurors to reach firm views about
how to decide the case before deliberations, despite instructions to keep an open mind
until then. And even though it may be hard to show prejudice when the jurors are
provided written copies of the instructions and counsel can refer to them in closing
argument, there is probably no better way to convey the dignity and importance of the
proceedings than for the presiding judge to read the instructions as the jurors retire to
deliberate.
In short, we find support for Mr. Capps’s argument; but even if he is correct in his
interpretation of Criminal Rule 30(c), he cannot prevail under plain-error review because
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he falls short of satisfying the requirements of the plain-error test that the error be plain
and that the error be prejudicial.
First, any error was not plain. An error is plain if it is “so clear or obvious that it
could not be subject to any reasonable dispute,” meaning that it is “contrary to well-
settled law.” United States v. Starks, 34 F.4th 1142, 1157 (10th Cir. 2022) (internal
quotation marks omitted). “In general, for an error to be contrary to well-settled law,
either the Supreme Court or this court must have addressed the issue.”
Id. (internal
quotation marks omitted).
On the issue before us we are not aware of any case from this court or any other
federal court of appeals reading Criminal Rule 30(c) to require instructing the jury after
the close of evidence. In fact, this court has explicitly acknowledged that this question is
unresolved. In Starks the district court delivered the full set of jury instructions before the
presentation of evidence and did not reinstruct the jury at the conclusion of evidence. See
34 F.4th at 1150, 1154. On appeal we held that the cumulative effects of three errors—the
government’s argument to the jury that the presumption of innocence no longer existed
after the presentation of evidence, the court’s improper admission of expert testimony,
and the government’s vouching for a witness’s credibility—required reversal of the
defendant’s conviction. See
id. at 1156. The court said that the presumption-of-innocence
statement had some prejudicial effect on the trial and the district court’s “unconventional”
timing in delivering instructions may have undermined the capacity of the instructions to
mitigate the prejudice.
Id. at 1160. But it stopped short of holding that the timing of the
instructions itself was an error, saying,
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We have never opined on the propriety of this unconventional instructional
approach, and we do not need to lay down a one-size-fits-all categorical rule
on the subject to resolve this case. In this regard, we recognize that the federal
rules grant trial courts a certain amount of discretion regarding when they
instruct the jury.
Id. at 1163 (citing Fed. R. Crim. P. 30(c)). It did observe, however, that “some courts
have deemed such an unconventional approach—involving the pre-evidence oral delivery
of instructions—to be problematic and even legally erroneous.” Id.; see also
id. at 1166
(citing empirical research suggesting the unique value of oral instructions, particularly
regarding the beyond-a-reasonable-doubt burden and the presumption of innocence).
“[T]his is primarily because of concerns regarding the jury’s capacity to remember
important legal principles before they deliberate.”
Id. at 1163. But the only federal case it
cited—United States v. Ruppel,
666 F.2d 261, 274 (5th Cir. 1982)—was decided before
the 1987 Amendments to Criminal Rule 30(c). The rule now permits instructions “before
or after the arguments are completed,” Fed. R. Crim. P. 30(c), as opposed to “after the
arguments are completed,” Fed. R. Crim. P. 30 (1966). Thus, Starks compels the
conclusion that any error here was not plain.
Moreover, Mr. Capps cannot prevail under the third prong of plain-error review.
To satisfy this prong, he “has the burden to show a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” United States v.
Benford, 875 F.3d 1007, 1017 (10th Cir. 2017) (internal quotation marks omitted).
That standard was not satisfied here. The district court read the instructions to the
jury on the first day of trial and provided each juror with a written copy of the
instructions. After closing arguments it instructed the jury that all the instructions it had
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previously read continue to apply; that upon entering the jury room, the second thing they
should do, after picking a foreperson, is to read the court’s instructions; and that they
must follow the court’s instructions throughout their deliberations.
Mr. Capps argues that the oral instructions given before opening statements cannot
cure any prejudice because “jurors have a limited capacity to retain complex legal
concepts.” Aplt. Reply Br. at 22; see Starks, 34 F.4th at 1163 (noting “concerns regarding
the jury’s capacity to remember important legal principles before they deliberate”). He
also asserts that juror access to the written instructions was insufficient to cure the failure
to give oral instructions. See Starks,
34 F.4th at 1166 (“Many jurors may not adequately
comprehend written instructions. It is no secret that jury instructions are often written in
language more suitable for lawyers than laypersons.” (brackets and internal quotation
marks omitted)). But any risk that a juror both forgot important oral instructions and
inadequately comprehended the written instructions could be ameliorated by defense
counsel, who was told by the court that he could refer to the instructions during closing
arguments and who explicitly referenced and discussed several jury instructions during
closing arguments, including those on the burden of proof beyond a reasonable doubt, the
presumption of innocence, and the good-faith defense. See Ruppel, 666 F.2d at 274–75
(“The district judge charged the jury on the presumption of innocence at the beginning of
the trial and referred to these instructions at the outset of his final charge. Appellant’s
counsel referred to the presumption of innocence during his closing argument. Given this
background, we are unwilling to believe that the jury retired to deliberate less than fully
aware of the presumption of innocence.”); United States v. Payne,
944 F.2d 1458, 1467–
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68 (9th Cir. 1991) (failure to instruct on the presumption of innocence did not constitute
plain error in part because the district court emphasized the presumption of innocence
during voir dire and defense counsel reminded the jury of the presumption of innocence
in closing argument). And we are not convinced that the written instructions were
ineffective in at least helping to minimize any prejudice. See United States v. Becerra,
939 F.3d 995, 1006–08 (9th Cir. 2019) (Graber, J., dissenting) (although the district court
erred by failing to read all instructions to the jury aloud, the error was harmless because
the court orally instructed the jurors to read the written instructions and the jurors
individually confirmed in open court that they had read the instructions, and because
“[m]any people absorb information better in writing [and] there is no way to know
whether jurors are listening when oral instructions are given.”). But see
id. at 1004
(majority opinion) (a “virtually complete failure” to deliver oral instructions is “structural
error”).
Mr. Capps also argues that the harm caused by failing to read the instructions
immediately before or after closing arguments was compounded by the “sporadically
scheduled trial, the late addition of an alternative juror, and the complexity of the legal
and factual issues presented.” Aplt. Reply Br. at 22; see Apt. Br. at 23 (the jury’s ability to
meaningfully comprehend “the complex legal standards announced at the outset of trial”
was undermined because the trial “required the jurors to intently focus on the
complicated evidence presented, diligently keep track of multiple financial institutions,
corporate entities, loan applications, and financial transactions, and thoroughly examine
mind-numbing financial records”). But even if the length and intensity of the trial may
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have drained the memories of the jurors, they were able to refresh those memories with
their individual copies of the instructions throughout the trial and deliberations, and
defense counsel at closing argument could, and did, emphasize to them the instructions he
thought most important.
We conclude that Mr. Capps has not satisfied his burden of showing that under
these circumstances there was a reasonable probability that the court’s failure to read the
instructions after the close of evidence affected the result of the trial.
C. Abuse of Discretion
Mr. Capps also argues that even if district courts are permitted to instruct the jury
at the beginning of trial in some cases, doing so was an abuse of discretion in this case.
“A court abuses its discretion only when it makes a clear error of judgment, exceeds the
bounds of permissible choice, or when its decision is arbitrary, capricious or whimsical,
or results in a manifestly unreasonable judgment.” United States v. Mobley, 971 F.3d
1187, 1195 (10th Cir. 2020) (brackets and internal quotation marks omitted). We see no
abuse of discretion here.
The district court’s decision to deliver instructions at the beginning of trial was
based on its own experience and judgment and input from counsel. The court explained
its reasoning for delivering instructions in this manner, noting that based on previous
experience “[t]he jurors like it. And I’ve found that they take notes on the instructions as
we go through trial because of that.” R., Vol. III at 24. It expressed its concern that
reading all instructions before trial could be prejudicial if a charge gets dropped or
dismissed during the trial and asked for counsel’s input. The prosecutor noted that he was
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part of a case in which the court used this practice and “ended up liking it” because it
provides “a mental road map to the jury.” Id. at 25. Likewise, defense counsel said, “I
kind of like it.” Id.
Mr. Capps argues that the district court abused its discretion because it had no
reason for refusing to reread instructions at the close of evidence other than that, as he
claims, it “could not be bothered.” Aplt. Br. at 23. But the court did explain its reluctance,
saying, “I’ve a painful memory of a 45-minute session in which I read instructions . . . it
does compare to a Stephen King novel, is a bit of a horror to go through that. I think it
would be error for me to single out some instructions as opposed to others. I think it
would be cruel and inhumane to reread them all again.” R., Vol. III at 960. The court’s
concerns about unnecessarily wearying the jury and not singling out certain instructions
may reflect a minority view, but they do not rise to an abuse of discretion.
And, again, the court also took steps to ensure the jury would not forget the
instructions by the end of trial by providing each juror with a written copy of the
instructions; instructing the jury after closing arguments that all the instructions that it
previously read continue to apply; instructing the jury that upon entering the jury room,
the second thing they should do, after picking a foreperson, was to read the court’s
instructions; and instructing the jury that they must follow the court’s instructions
throughout their deliberations. Also it suggested that defense counsel could refer to the
instructions during closing argument, which defense counsel did.
Finally, Mr. Capps argues that reinstructing the jury was necessary given the
“extremely unusual and disjointed manner” of the trial schedule and the complexity of
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the case. Aplt. Br. at 21–24. But as we have already explained, these arguments are not
compelling; they do not establish an abuse of discretion. The trial court could reasonably
believe that the procedure adopted would be adequate, and perhaps would advance the
cause of justice more than the standard procedure.
III. CONCLUSION
We AFFIRM the judgment below.
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