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Vivian Tat, aka Vivian Lnu v. United States

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 19-50034 · judgment October 21, 2021


Certiorari denied · June 6, 2022
Pre-decision estimate: 3% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Rogers v. United States, 422 U.S. 35 (1975), holds that a deliberating jury’s questions must be “answered in open court,” and that defense counsel must be “given an opportunity to be heard before the trial judge respond[s].” Id. at 39. A Rogers error is thus premised on a district court’s failure to allow the defendant to be present, to participate, or to object. Yet the Ninth Circuit recently held that plain error review applies to Rogers claims, placing an unfair burden of preservation on criminal defendants who are complaining of being deprived of their fundamental rights to presence and consultation. In so doing, the Ninth Circuit deepened an existing split among the Circuits. This Court should therefore grant certiorari to answer the following important question: Does plain error review govern claims of Rogers error on appeal, as the Ninth Circuit held below, or are such claims reviewed for harmlessness beyond a reasonable doubt, as the Eighth and D.C. Circuits have held?

Counsel of record

For petitioner
Michael V. Schafler
Cohen Williams LLP

For respondent
Elizabeth B. Prelogar
Solicitor General

Case

Conference history
Distributed for 1 conference

Proceedings

  1. Jun 06 2022
    Petition DENIED.
  2. May 17 2022
    DISTRIBUTED for Conference of 6/2/2022.
  3. May 12 2022
    Waiver of right of respondent United States to respond filed.
  4. Apr 12 2022
    Petition for a writ of certiorari filed. (Response due May 16, 2022)