Cody Ballinger v. United States

In Neder v. United States, 527 U.S. 1 (1999), the Court held that the failure to submit to the jury an essential element of the offense charged is not structural error, but rather subject to harmless-error review. In conducting that review, appellate judges examine the trial record and decide either that the government has shown beyond a reasonable doubt that the jury verdict would have been the same absent the error or that “the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Id. at 19. Justice Scalia dissented, arguing that when “we judges” decide that the defendant “is unquestionably guilty,” the defendant has been deprived of his fundamental right to a jury trial on every element. Id. at 31–32 (Scalia, J., dissenting in part, joined by Souter & Ginsburg, JJ.) The questions presented here are: I. Should the Court overrule Neder v. United States, 527 U.S. 1 (1999), as inconsistent with the bedrock Fifth and Sixth Amendment principles underlying Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny? II. If Neder survives, what is the proper test for harmless-error review following a guilty plea where the government failed to charge and prove to a jury a fact necessary to the punishment, in violation of the Fifth and Sixth Amendments?