No Plain Error Possible Where Issue Is Unresolved in Circuit and Other Circuits Are Split

United States v. Van Pelt, 2011 U.S. App. LEXIS 21217 (3d Cir. Oct. 21, 2011):

Van Pelt concedes, as he must, that we review for plain error because he did not object at trial to any of the issues he presents on appeal. See Fed. R. Crim. P. 52(b). To meet this standard, Van Pelt must show: (1) error, (2) that was "clear or obvious," (3) that "affected [his] substantial rights," and (4) that ""seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (last alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). The decision whether to correct a plain error that satisfies the first three prongs of the standard is discretionary, while the fourth prong is used to guide the exercise of that discretion. Id.***

Even if the District Court erred, it is a logical impossibility that such error was "clear or obvious." Our sister circuits have split over the question of whether § 666 requires a quid pro quo. Compare United States v. Redzic, 627 F.3d 683, 692 (8th Cir. 2010) (requiring a quid pro quo), and United States v. Ganim, 510 F.3d 134, 148-51 (2d Cir. 2007) (same, on plain-error review), and United States v. Jennings, 160 F.3d 1006, 1020-22 (4th Cir. 1998) (finding plain error but affirming the conviction where the jury instruction omitted a quid pro quo element), with United States v. McNair, 605 F.3d 1152, 1187-88 (11th Cir. 2010) (no quid pro quo required), and United States v. Abbey, 560 F.3d 513, 520-21 (6th Cir. 2009) (same), and United States v. Gee, 432 F.3d 713, 714-15 (7th Cir. 2005) (same). Because we have not yet decided the question, it necessarily follows that there can be no plain error. And Van Pelt's failure to raise the issue in the District Court makes this case an unsuitable occasion for us to decide on which side of the circuit split we fall.

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