Constitutional Booker error is not “structural” error

SENTENCING/TRIAL United States v. Dowlin, No. 03-8038, ___ F.3d ___ (10th Cir. May 17, 2005)(Wyoming). Appeal of convictions and sentence for conspiracy, securities fraud, mail fraud, and wire fraud in violation of 18 U.S.C. § 371, 1343, and 15 U.S.C. §§ 77(q)(a)(1)-(3) and 77x. HELD: (1) Constitutional Booker error is not structural error because any prejudice stemming from such error may be evaluated on record developed in district court proceeding. Defining feature of structural error is that its resulting unfairness or prejudice is unquantifiable and indeterminate, such that any inquiry into its effect on outcome of case is purely speculative. (2) Jury instruction that permits two inferences (i.e., guilt or innocence), where evidence does not decisively favor either, improperly dilutes government’s burden of proof by suggesting there is quantum of proof sufficient to convict above "innocent" but below "beyond a reasonable doubt." Read the opinion here.