Vivian Tat, aka Vivian Lnu v. United States

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?