FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CESAR ANTONIO BECERRA,

Defendant-Appellant.

No. 17-30050

D.C. No.

3:14-cr-00227-MO-1

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, Chief District Judge, Presiding

Argued and Submitted March 7, 2019

Portland, Oregon

Filed September 23, 2019

Before: Susan P. Graber and Marsha S. Berzon, Circuit 

Judges, and Eduardo C. Robreno,* District Judge.

Opinion by Judge Berzon;

Dissent by Judge Graber

* The Honorable Eduardo C. Robreno, United States District Judge 

for the Eastern District of Pennsylvania, sitting by designation.
2 UNITED STATES V. BECERRA

SUMMARY**

Criminal Law

Reversing a conviction and remanding for a new trial, 

the panel held that it is bound by the holdings in Guam v. 

Marquez, 963 F.2d 1311 (9th Cir. 1992), that a trial court 

does not satisfy its duty to instruct jurors in a criminal case 

just by providing jurors with a set of written instructions to 

use during deliberations, and that when a trial court abdicates 

its responsibility to charge the jury orally as to the elements 

of the charged crimes, it commits structural error.

The panel held that because the trial judge in this case 

delivered no such oral charge, the requisites for reversing on 

plain error review have been met.

Dissenting, Judge Graber wrote that the error was 

harmless in this case in which the court gave the jury written 

instructions, the final versions of which defendant concedes 

were correct; the court orally instructed the jury to read those 

instructions; the jurors confirmed that they had read the 

written instructions; and the evidence of guilt was 

overwhelming.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BECERRA 3

COUNSEL

Michael R. Levine (argued), Levine & McHenry LLC,

Portland, Oregon, for Defendant-Appellant.

Thomas S. Ratcliffe (argued), Assistant United States 

Attorney; Kelly A. Zusman, Appellate Chief; Billy J. 

Williams, United States Attorney; United States Attorney’s 

Office, Portland, Oregon; for Plaintiff-Appellee.

OPINION

BERZON, Circuit Judge:

Our circuit held nearly thirty years ago that oral 

instructions to the jury as to the law they must apply are an 

essential feature of a jury trial. Guam v. Marquez, 963 F.2d 

1311, 1314–15 (9th Cir. 1992). A trial court does not satisfy 

its duty to instruct jurors in a criminal case just by providing 

those jurors with a set of written instructions to use during 

deliberations. Id. We further determined that when a trial 

court abdicates its responsibility to charge the jury orally as 

to the elements of the charged crimes, it commits structural 

error. Id. at 1315–16. We are bound by those holdings and 

so reverse the conviction in this case.

I

In February 2016, Cesar Becerra was tried on six counts 

for crimes related to the possession and distribution of heroin 

and methamphetamine.1 During the final pretrial 

1 Specifically, Becerra proceeded to trial on the following charges: 

(1) possession with intent to distribute heroin in June 2014; 
4 UNITED STATES V. BECERRA

conference, the district court told the parties that it would 

provide the jurors with written copies of the jury instructions 

at the beginning of the trial. The court explained that it 

would confirm with the jurors at some point during the trial 

that they had in fact read the provided instructions. So long 

as the instructions were not subsequently changed, the court 

said, it would not read the instructions aloud to the jurors. 

Neither party objected to this planned course of action.

The district court implemented its plan largely as 

announced. On the morning of the first day of trial, each 

juror was provided a set of draft jury instructions. These 

instructions, which largely followed our circuit’s model jury 

instructions, included explanations of the substantive 

offenses and definitions of key terms, such as “reasonable 

doubt,” “possession,” and “knowingly.” See Model Crim. 

Jury Instr. 9th Cir. §§ 1.5, 1.7, 1.8, 3.1–3.2, 3.5–3.9, 3.11, 

3.14–3.15, 3.18, 4.1, 4.8–4.9, 4.14, 4.17, 5.7, 6.10, 7.1, 7.3–

7.6, 8.72, 9.15–9.16, 9.18 (2010). The court told the jurors 

to read the provided instructions: “I’m not going to give you 

a quiz on” the instructions, the court said, “but you will be 

asked if you read it. So please read it tonight.”

When it gave them the written instructions, the court read 

aloud to the jurors a few preliminary instructions, which, as 

the court explained, were “geared to . . . telling you a little 

bit about your job as jurors.” These instructions included, 

for example, an explanation of the jurors’ duty to deliberate, 

a brief, non-technical explanation of the charges being tried, 

(2) possession with intent to distribute heroin in February 2014; 

(3) possession of a 9 mm caliber firearm in furtherance of a drugtrafficking crime in February 2014; (4) possession of a .22 caliber 

firearm in furtherance of a drug-trafficking crime in February 2014; 

(5) possession with intent to distribute heroin in December 2012; and 

(6) distribution of heroin in December 2011.
UNITED STATES V. BECERRA 5

and an explanation of what is (and what is not) evidence. 

These preliminary oral instructions did not include any 

explanation of the elements of the three crimes charged in 

the six counts, or otherwise guide the jurors as to the 

substantive law they were expected to apply. After a recess, 

the trial commenced with the parties’ opening statements.

At the close of evidence on the next trial day, the district 

court retrieved the draft jury instructions from those jurors 

who had brought the instructions back to the courthouse and 

provided each juror with a set of final instructions to use 

during deliberations. The court then asked Juror No. 1 in 

open court: “[H]ave you read each and every one of [the 

draft] instructions . . . ?” Juror No. 1 said, “Yes.” The court 

continued: “Two?”, “Three?”, and so on through “Twelve?”

and “Our alternate?” Each juror, in turn, responded: “Yes.” 

No further follow-up was conducted by either the court or 

the parties to assess whether the jurors had fully read and 

understood the draft instructions they had been provided.

Between the draft and final instructions, one instruction 

was added and two were modified. Specifically, the court 

(1) added an instruction explaining how the jurors should 

treat evidence of acts not charged; (2) added a sentence to 

the instruction explaining how jurors should evaluate the 

evidence of a cooperating witness; and (3) removed a 

sentence in an instruction on the lesser-included offense of 

possession of a controlled substance. The court notified the 

jurors of these changes and read the full text of the three new 

and modified instructions aloud. The district court did not 

after the close of evidence read aloud any of the remaining 

twenty-seven instructions, or otherwise orally instruct the 

jurors as to the substantive law.
6 UNITED STATES V. BECERRA

The parties then delivered closing arguments to the 

jurors. The next morning, the jurors returned to deliberate. 

They reached a guilty verdict on all six counts that same day.

In March 2017, the district court sentenced Becerra to 

60 months of incarceration. Becerra timely appealed.

II

Becerra’s principal argument on appeal is that the district 

court erred by not reading the jury instructions aloud to the 

jury.2 Becerra did not object in the district court to the plan 

to provide primarily written instructions or to the 

implementation of that plan. We therefore review the failure 

to provide an oral jury charge for plain error. United States 

v. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019) (en banc). 

Under plain error review, we may reverse a district court’s 

ruling only if (1) there was error, (2) the error was plain, 

(3) the error affected substantial rights, and (4) the error 

seriously affected the fairness, integrity, or public reputation 

of judicial proceedings. Id. at 1232.

A

The first two requirements are clearly met. We 

disapproved an essentially similar trial procedure in 

Marquez. The trial court in Marquez, like the district court 

here, never orally instructed the jurors as to the charged 

crimes. 963 F.2d at 1312. Instead, the jurors in Marquez

were provided, after closing arguments, with a set of written 

jury instructions that included “the elements of the crimes”

2 Becerra also appeals the district court’s denial of his motion to 

suppress. We affirm the district court’s decision to deny the motion to 

suppress in a memorandum disposition filed contemporaneously with 

this opinion.
UNITED STATES V. BECERRA 7

being tried and the definitions for terms “mentioned in the 

description[s] of the offense[s] . . . .” Id. at 1312–13. Before 

sending the jurors to deliberate, the trial court in Marquez 

advised the jurors that it had provided them with written jury 

instructions. It then told the jurors: “You will have [the 

instructions] with you, so there is no need of reading it to 

you.” Id. at 1313.

Marquez held that it was error for the trial court not “to 

instruct the jury on the elements of the [charged] offense 

before submitting [the] matter to the jury.” Id. at 1314. Just 

providing jurors with written instructions delineating the 

elements of the charged offenses was not enough.3 Id. 

at 1315–16. Relying on the Third Circuit’s decision in 

United States v. Noble, 155 F.2d 315 (3d Cir. 1946), 

Marquez reasoned that an oral jury charge is necessary to 

ensure that “each member of the jury has actually received 

the instructions.”4 963 F.2d at 1314 (quoting Noble, 

155 F.2d at 318).

3 Marquez at one point says that “all jury instructions must be read 

aloud to the jury in the presence of counsel and the defendant.” 963 F.2d 

at 1314–15 (emphasis added). This summary may overstate the holding 

of the case. Elsewhere in the opinion, Marquez states that the trial court 

erred by not reading aloud “instructions defining the offense charged.” 

Id. at 1314; see also id. at 1315. The difference does not matter here. 

The trial court here did not read aloud any of the offense-defining 

instructions nor most of the other instructions.

4 Marquez and Noble further reasoned that oral instructions are 

necessary because “counsel and the defendant [are] entitled to hear the 

instructions in order that they may, if they are incorrect, object to them 

and secure their prompt correction by the trial judge.” Id. at 314 (quoting 

Noble, 155 F.2d at 318). This secondary rationale lacks persuasive force. 

As long as jury instructions are provided in written form to the parties 
8 UNITED STATES V. BECERRA

Marquez’s holding that an oral charge is a necessary 

feature of our criminal trial process reflects the critical 

importance of communicating effectively to jurors in detail 

the legal principles governing their deliberations. Jurors in 

our criminal justice system are delegated the awesome 

responsibility of determining the innocence or guilt of a 

defendant put before them. A determination of guilt can, of 

course, severely restrict a defendant’s physical liberty for 

years or decades. And the jury’s decision will generate a 

cascade of other consequences: A citizen found guilty often 

is unable to participate in our democratic system by voting, 

see, e.g., Wash. Const. art. VI, § 3; Or. Rev. Stat. 

§ 137.281(3)(d); a non-citizen may lose her ability to remain 

in the country, see, e.g., Martinez v. Mukasey, 551 F.3d 113, 

118 n.3 (9th Cir. 2008).

Because jurors are assigned such a critical role in our 

criminal justice system, “[i]t is essential to the 

administration of justice that a jury scrupulously follow the 

law as given to it by the judge, and to that end his instructions 

should be clear and firmly fixed in the mind of each juror.” 

Babson v. United States, 330 F.2d 662, 666 (9th Cir. 1964). 

Since before the founding of our Republic, courts have 

sufficiently in advance, objections can be made well before instructions 

are distributed to the jurors.

Federal Rule of Criminal Procedure 30 has long required that trial 

courts provide the parties with an opportunity to make specific 

objections to the jury instructions; that opportunity must take place “out 

of the jury’s hearing and, on request, out of the jury’s presence.” Fed. 

R. Crim. P. 30(d). In practice, district courts comply with this rule by 

providing the parties an opportunity to review and to object to the 

planned instructions before they are read to the jury. 2A Fed. Prac. & 

Proc. Crim. § 484 (4th ed.); see also United States v. Loya, 807 F.2d 

1483, 1492 (9th Cir. 1987); Las Vegas Merchant Plumbers Ass’n v. 

United States, 210 F.2d 732, 744 (9th Cir. 1954).
UNITED STATES V. BECERRA 9

universally met the need to educate jurors by orally advising 

jurors “in the presence of the parties, the counsel, and all 

others . . . in matters of law arising upon th[e] evidence.” 

3 William Blackstone, Commentaries *375; see also United 

States v. Robinson, 724 F.3d 878, 887 (7th Cir. 2013); Noble, 

155 F.2d at 317 n.1 (quoting Thomas M. Cooley, 

Constitutional Limitations *321 (1st ed. 1868)).

There are excellent reasons this feature of our trial 

process endures. For one, many jurors may not adequately 

comprehend written instructions. It is no secret that jury 

instructions are often written in language more suitable for 

lawyers than laypersons. See, e.g., Jonathan Barnes, 

Tailored Jury Instructions: Writing Instructions that Match 

a Specific Jury’s Reading Level, 87 Miss. L.J. 193, 195 

(2018); Prentice H. Marshall et al., Pattern Criminal Jury 

Instructions: Report of the Federal Judicial Center 

Committee to Study Jury Instructions, at vii, 79–83 (1982); 

Phil H. Cook, Instructionese: Legalistic Lingo of Contrived 

Confusion, 7 J. Mo. B. 113 (1951). Written instructions can 

be especially impenetrable for those jurors with limited 

reading comprehension skills.5 See Laurence J. Severance 

et. al., Toward Criminal Jury Instructions that Jurors Can 

Understand, 75 J. Crim. L. & Criminology 198, 224 (1984); 

Robert P. Charrow & Veda R. Charrow, Making Legal 

5 This group of jurors is not insignificant. Fourteen percent of 

American adults have less than basic prose literacy; these adults range 

from the nonliterate to those with the ability to “locat[e] easily 

identifiable information in short, commonplace prose texts.” Nat’l Ctr. 

for Education Statistics, A First Look at the Literacy of America’s Adults 

in the 21st Century 2–4 (2006). Another 29 percent have only basic 

prose literacy—in other words, can “read[] and understand[] information 

in short, commonplace prose texts.” Id. at 3. Only 13 percent of 

American adults have the skills necessary to “read[] lengthy, complex, 

abstract prose texts.” Id.
10 UNITED STATES V. BECERRA

Language Understandable: A Psycholinguistic Study of Jury 

Instructions, 79 Colum. L. Rev. 1306, 1320–21 (1979). And 

even if a jury is comprised of an unusually educated crosssection of the community, many of us at times succumb to 

the temptation to glaze over a long paragraph of text or flip 

over a few pages of a lengthy stack of papers. When the 

instructions are read orally, tonal inflection can make the 

content of the instructions more accessible, as well as 

discourage the “tuning out” common when reading dense 

material. Oral instruction in the formal courtroom setting 

thus assures that jurors are exposed to the substance of the 

essential instructions by at least one sensual route.

The oral charge also performs a second, signaling 

function that cannot be replaced by a printout or a pamphlet. 

Jury instructions are not the judicial equivalent of a car 

manual or a cookbook. When an enrobed judge orally 

charges the jury, the jurors are impressed with the fact that 

they have been entrusted with the power to decide the 

defendant’s fate. This oral, public ritual helps ensure that 

“jurors . . . recognize the enormity of their task and . . . take 

[that task] seriously.” Nancy S. Marder, Bringing Jury 

Instructions into the Twenty-First Century, 81 Notre Dame 

L. Rev. 449, 465 (2006). By analogy, reading a sermon is 

not the same as hearing it read in church or synagogue by a 

pastor or priest or rabbi. If it were, religious leaders would 

just hand out the sermons and end the services early.

For these reasons, the historic practice of oral jury 

instruction remains central to the fairness of jury trials. That 

conclusion does not mean that procedures for instructing 

juries have remained static—or should. Additions to oral 

instructions have enhanced the likelihood that jury 

instructions will effectively communicate to jurors the legal 

principles governing their critical task. See id. at 475–82. 
UNITED STATES V. BECERRA 11

For example, pattern jury instructions, now routinely 

promulgated and updated, originated in the early 20th 

century and became widely used in the 1960s.6 See Robert 

G. Nieland, Assessing the Impact of Pattern Jury 

Instructions, 62 Judicature 185, 185–87 (1978). Also, 

although the use of written jury instructions was once a 

rarity, courts now often supplement oral jury instructions 

with written ones, giving them to jurors to read 

contemporaneously with the oral instructions or to take to 

the jury room after the oral charge. See Cal. Penal Code 

§§ 1093(f), 1137 (providing jurors with a right to request 

written instructions); Ninth Circuit Jury Instruction 

Committee, Manual of Model Criminal Jury Instructions

§ 3.1 (2010) (“A copy of these instructions will be available 

in the jury room for you to consult.”); see also William W. 

Schwarzer, Communicating with Juries: Problems and 

Remedies, 69 Calif. L. Rev. 731, 756–57 (1981). Written 

instructions are mandatory in some jurisdictions. See, e.g., 

Or. Rev. Stat. § 136.330 (1); Or. R. Civ. P. 59(B); Wash. 

Sup. Ct. Civ. R. 51(h). We have no doubt that there is room 

for more useful innovation as to both how jury instructions 

are drafted and how they are communicated to the jurors.7 

6 As another example, Federal Rule of Criminal Procedure 30 was 

modified in 1987 to allow district courts to charge the jury either before 

or after closing arguments. See Fed. R. Crim. P. 30 Advisory 

Committee’s Note to 1987 Amendment.

7 Scholars, judges, and lawyers have long recognized that jurors far 

too often decide cases without an adequate understanding of the law they 

are required to apply. See, e.g., United States v. Cohen, 145 F.3d 82, 93 

(2d Cir. 1942) (Hand, J.); Nancy S. Marder, Bringing Jury Instructions 

into the Twenty-First Century, 81 Notre Dame L. Rev. 449, 454–58 

(2006); Schwarzer, Communicating with Juries: Problems and 

Remedies, supra; David U. Strawn & Raymond W. Buchanan, Jury 

Confusion: A Threat to Justice, 59 Judicature 478, 480–81 (1976); Wylie 

A Aitken, Comment: The Jury Instruction Process—Apathy or 
12 UNITED STATES V. BECERRA

But even as the exact form of a trial court’s jury charge has 

evolved, there has always been a bedrock recognition that 

the trial court must orally charge the jury before 

deliberations commence.

Notably, the government in this case does not contend 

otherwise. It recognizes that, as Marquez makes clear, the 

district court in this case erred by not reading the essential 

jury instructions aloud. Rather, the government’s central 

contention is that Marquez is not here binding as to its 

second holding—that the failure of the district court to read 

jury instructions aloud to the jurors in open court is structural 

error and so not subject to harmless error analysis. We turn 

to that contention.

B

Contrary to the government’s submission, Marquez is 

binding on us not only with regard to its substantive holding 

as to the necessity of oral jury instructions but also as to its 

second holding—that the district court committed structural 

error by failing to read an oral charge to the jurors.

Marquez’s conclusion that the omission of an oral charge 

is structural error rests primarily on its observation that an 

appellate court cannot meaningfully assess whether failure 

to provide oral instructions impacted “the jury’s 

performance of its duties” in a particular trial. Id.at 1315–

16. In Marquez, “the record [was] silent regarding whether 

any of the jurors read the instructions that were submitted to 

them.” Id. at 1316. Here, there was an attempt to ascertain 

Aggressive Reform, 49 Marquette L. Rev. 137, 137 n.2 (1965); Robert 

Winslow, The Instruction Ritual, 13 Hastings L. J. 456, 469–70 (1962).
UNITED STATES V. BECERRA 13

that the jurors read the instructions provided to them.8 But 

we do not assess whether an error is structural on a case-bycase basis. “[A] constitutional error is either structural or it 

is not.” Neder v. United States, 527 U.S. 1, 14 (1999). “An 

error can count as structural even if the error does not lead 

to fundamental unfairness in every case.” Weaver v. 

Massachusetts, ___ U.S. ___, 137 S. Ct. 1899, 1908 (2017).

The dissent takes issue with this recent Supreme Court 

pronouncement, arguing that “deciding whether a particular 

error is properly labeled ‘structural’ entails a close look at 

specifics.” Of course, we must determine on a case-by-case 

basis whether there was an error, and, if so, whether that kind 

of error is structural. Failure to conduct a trial in public 

absent any factual findings is error, Waller v. Georgia, 

467 U.S. 39, 45–46 (1984), and structural, see id. at 49–50; 

conducting a trial or hearing after making adequate factual 

findings is not error at all. Id. at 45. Omission of a single 

element of the charged offense from the jury instructions is 

error, but not structural error, Neder, 527 U.S. at 8–11; 

omission of the burden of proof from those instructions is 

error, and structural, see id. at 11. And in some instances 

where a structural error has occurred, the relief required to 

cure that error may not result in a new trial for the defendant. 

Waller, 467 U.S. at 49–50. But none of these caveats means 

8 We note that the trial judge’s questioning of the jurors was 

perfunctory, and the jurors were not placed under oath. Moreover, the 

jurors’ “yes” answers do not establish that they read the instructions 

carefully enough to comprehend their essentials. A simple “yes” also 

does not answer: Did the juror read the instruction alone or with one or 

more persons? Did the juror read the instructions in one or more sittings? 

Did the juror consult dictionaries or other legal sources to help him or 

her understand any terms? Did the juror discuss the instructions with 

other jurors or other persons? Did the juror read the instructions while 

engaged in other activities such as watching television?
14 UNITED STATES V. BECERRA

that once we identify an error that is structural in kind—here, 

failure to instruct the jury orally—we reconsider whether 

that error should be deemed structural in the specific case 

before us.

Of course, there may be some cases where it is hard to 

discern whether the trial court acted in a manner that we have 

already deemed structural error, or whether the trial court 

committed error that is related but distinct in kind. Cf. 

Johnson v. United States, 520 U.S. 461, 469 (1997). This is 

not that case. The error held structural in Marquez was the 

failure of the judge orally “to read the elements of the crime 

to the jury,” 963 F.3d at 1315 (capitalization modified); it 

was not the failure to ascertain whether the jury read written 

instructions provided to it in lieu of oral instruction.

Thus, under Marquez, the failure to instruct the jury 

orally was structural error absent some intervening higher 

legal authority “clearly irreconcilable” with Marquez. 

Gammie, 335 F.3d at 900; see also United States v. 

Xinidakis, 598 F.3d 1213, 1216 (9th Cir. 2010). There is no 

such authority.

No en banc case or Supreme Court case has held that the 

failure to instruct the jury orally is not structural error. And 

the overall reach of the structural error doctrine has remained 

largely the same since Marquez was decided in 1992. Then 

and now, “[t]he purpose of the structural error doctrine [has 

been] to ensure insistence on certain basic, constitutional 

guarantees that should define the framework of any criminal 

trial.” Weaver, 137 S. Ct. at 1907. The “defining feature”

of such error, is that it “‘affect[s] the framework within 

which the trial proceeds,’ rather than being ‘simply an error 

in the trial process itself.’” Id. (quoting Arizona v. 

Fulminante, 499 U.S. 306, 310 (1991)) (alteration in 
UNITED STATES V. BECERRA 15

original). Marquez cited Fulminante. See 963 F.2d at 1315–

16.

Marquez’s reasoning is not irreconcilable with later case 

law either. One of Marquez’s central premises for its 

structural error holding—that the failure to provide any oral 

instructions to the jurors is an error that as a practical matter 

“precludes a harmless error analysis,” id. at 1316—is fully 

compatible with post-Fulminante case law. The Supreme 

Court in Weaver recently explained that a structural error 

approach is appropriate for cases in which “the effects of the 

error are simply too hard to measure,” making harmless error 

review futile. 137 S. Ct. at 1908.

In sum, neither Marquez’s holding nor its reasoning is at 

odds with now controlling structural error precedents. We 

therefore remain bound by Marquez. The virtually complete 

failure to instruct the jurors orally was structural error.

C

Even if we were not bound by Marquez, we would 

nonetheless conclude that it is appropriate to categorize the 

failure to charge jurors orally as structural error.

As the Court explained recently in Weaver, an error is 

usually deemed structural for at least one of three broad 

reasons, although “[i]n a particular case, more than one of 

these rationales may be part of the explanation for why an 

error is deemed to be structural.” Id. at 1908. First, an error 

is structural if it “deprive[s] defendants of ‘basic protections’ 

without which ‘a criminal trial cannot reliably serve its 

function as a vehicle for determination of guilt or 

innocence,” Neder, 527 U.S. at 8–9 (quoting Rose v. Clark, 

478 U.S. 570, 577–78 (1986)); see also Weaver, 137 S. Ct. 

at 1908. Second, errors have been found structural where
16 UNITED STATES V. BECERRA

the effect of those errors are “necessarily unquantifiable and 

indeterminate,” making a harmless error analysis 

impossible. Neder, 527 U.S. at 11 (quoting Sullivan v. 

Louisiana, 508 U.S. 275, 282 (1993)); see also Weaver, 

137 S. Ct. at 1908. Finally, certain errors have been 

considered structural where the “right at issue is not 

designed to protect the defendant from erroneous conviction 

but instead protects some other interest.” Weaver, 137 S. Ct. 

at 1908; see also McKaskle v. Wiggins, 465 U.S. 168, 177, 

n.8 (1984). Each of these rationales is implicated by the 

failure to instruct the jury orally.

First, for the reasons discussed earlier, assuring that 

jurors are generally aware of the law to be applied is a 

protection without which a criminal trial cannot reliably 

serve its function. When a trial court does not provide the 

jurors with an oral charge, there has not “simply [been] an 

error in the trial process.” Weaver, 137 S. Ct. at 1907 

(quoting Fulminante, 499 U.S. at 310). The oral charge 

serves both to ensure that jurors are aware of the correct law 

and to instill in the jurors proper sense of respect for the 

jury’s role in the criminal justice process. See supra at 8–

12. Without an oral jury charge, the court has omitted a 

fundamental and ubiquitous feature of the criminal trial 

framework—the equivalent of holding no voir dire before 

selecting a jury, or holding the trial outside of public view. 

See Waller, 467 U.S. at 49 n.9. Moreover, just as presidents 

take the oath of office in public rather than by signing in 

private a document containing the oath, so as to convey that 

the president’s duty is of profound importance, the oral 

delivery of jury instructions in open court, by a judge 

wearing a robe, sitting before the prosecution, defendants, 

the jury, and the courtroom audience, conveys to the jurors 

that the jury’s responsibility is of profound importance, as it 
UNITED STATES V. BECERRA 17

indeed is.9 That recognition as well is essential to the 

functioning of the jury system.

Second, the impact on the jurors’ verdict of a failure to 

instruct jurors orally is “necessarily unquantifiable and 

indeterminate.” Neder, 527 U.S. at 11 (quoting Sullivan, 508 

U.S. at 282). Because the court’s failure to instruct 

implicates “all of the jury’s findings,” Sullivan, 508 U.S. 

at 281, whether the jurors would have ruled the same way 

had they been orally instructed cannot meaningfully be 

determined after the fact. To assess harmless error in this 

circumstance, a “reviewing court can only engage in pure 

speculation—its view of what a reasonable jury would have 

done.” Id. Even where the evidence of guilt is 

overwhelming, the entire premise of the jury trial system is 

that jurors, not judges, are entrusted with determining 

whether to believe the evidence presented and then apply the 

law to the facts determined to be true. Where, as here, the 

lapse as to assuring the jurors’ performance of its task is not 

partial but complete, an after-the-fact appraisal simply 

amounts to a denial of the constitutionally guaranteed trial 

by jury. 10

9 It is worth noting that “in a jury trial . . . a verdict . . . must be 

rendered by the jury in open court . . . in order to become final.” Gouveia 

v. Espinda, 926 F.3d 1102, 1115 (9th Cir. 2019) (quoting Harrison v. 

Gillespie, 640 F.3d 888, 898 (9th Cir. 2011)). This court has recognized 

that rendering a verdict in open court cannot be equated with writing that 

same verdict on a piece of paper behind closed doors and delivering the 

document to the judge. Similarly, the act of reading jury instructions at 

home is not equivalent to hearing a judge read those instructions aloud 

in open court.

10 By contrast, the Court held in Neder that the omission of a single 

element of the charged offense from the jury instructions was not 

structural error, because in that circumstance, the failure “did not 
18 UNITED STATES V. BECERRA

Third, without an oral charge, a key aspect of the trial is 

hidden from public observation, and the solemnity of the 

occasion for the public is fatally compromised. In this 

respect, the error is directly connected to denial of the right 

to a public trial and so implicates the third Weaver 

category—protection of “some other interest.” 137 S. Ct. 

at 1908. Here, that interest is the involvement of the 

public—including the media—in viewing the important 

aspects of trials, including the charge to the jury.

In short, all three of Weaver’s rationales for holding an 

error is structural are present here. Oral instruction as to the 

legal framework the jury must apply is a “basic[] 

constitutional guarantee[]” that must occur in all criminal 

trials, and failure to so instruct a jury is structural error. Id.

at 1907.

D

The third requisite of plain error review is necessarily 

met where the error at issue is structural. See United States 

v. Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015) (“a 

finding of structural error satisfies the third prong of the 

Olano plain-error test” (quoting United States v. Recio, 

371 F.3d 1093, 1101 (9th Cir. 2004))). Cf. United States v. 

Chavez-Cuevas, 862 F.3d 729, 734 (9th Cir. 2017), cert. 

denied, 138 S. Ct. 1179 (2018) (stating that when an error 

“implicates a structural right, the error affects substantial 

rights, and undermines the fairness of a criminal proceeding 

as a whole” (citations omitted)).

‘vitiat[e] all of the jury’s findings.” 527 U.S. at 11 (quoting Sullivan, 

508 U.S. at 281).
UNITED STATES V. BECERRA 19

The failure to instruct the jury orally in this case also 

“seriously affect[ed] the fairness, integrity, or public 

reputation of judicial proceedings,” satisfying the fourth 

element necessary to reverse under plain error review. 

Depue, 912 F.3d at 1232. The same reasoning that justifies 

categorizing this error as structural supports this conclusion. 

See supra pp. 15–18. It is impossible to know whether the 

jury would have come to the same conclusion had the judge 

orally instructed them as to the elements of the charges. 

Such uncertainty undermines the fairness and integrity of 

these judicial proceedings. In addition, where, as here, there 

is definitive precedent precluding the district court’s 

conduct, the “flagrant nature of the district court’s error . . .

seriously affects the public reputation of judicial 

proceedings.” United States v. Hammons, 558 F.3d 1100, 

1105 (9th Cir. 2009) (citations omitted) (holding a district 

court’s failure to state its reasoning for a sentence on the 

record, as required by established Supreme Court and Ninth 

Circuit law, to be plain error). Finally, as noted earlier, 

assuring public awareness of the charge to the jury and 

promoting the dignity and formality of a critical stage of the 

criminal trial are among the underpinnings of the oral 

instruction requirement. These values rest on the very same 

concerns for the “fairness, integrity, [and] public reputation 

of judicial proceedings” that comprise the fourth plain error 

factor. Depue, 912 F.3d at 1232.

For these reasons, we exercise our discretion to notice 

the plain error committed by the district court in this case.

III

Under Marquez, it is structural error not to instruct the 

jury orally as to the entire substantive law the jury must 

apply. Because the trial judge here delivered no such oral 

charge, the requisites for reversing on plain error review 
20 UNITED STATES V. BECERRA

have been met. We therefore reverse the conviction and 

remand for a new trial.

REVERSED AND REMANDED.

GRABER, Circuit Judge, dissenting:

I respectfully dissent. The district court erred by failing 

to read all the instructions to the jury aloud. But the error 

was clearly harmless in this particular case. The court gave 

the jury written instructions—the final versions of which 

Defendant concedes were entirely correct—and orally 

instructed the jury to read those instructions. The jurors 

confirmed—individually and in open court—that they had in 

fact read the written instructions, and the evidence of 

Defendant’s guilt was overwhelming.

Neither the majority nor Defendant refutes that analysis. 

Instead, the majority holds that the instructional error falls 

into the narrow class of errors deemed “structural” and that, 

accordingly, we may not assess harmlessness. I disagree that 

the error in this case is properly classified as structural. 

Accordingly, I would hold that the error did not affect 

Defendant’s substantial rights. Additionally, even assuming 

that the error affected his substantial rights, I would hold that 

this case does not warrant the exercise of our discretion 

because the error did not seriously affect the fairness, 

integrity, or public reputation of the trial.

Defendant did not object to the district court’s method of 

instructing the jury, so we review for plain error only. 

United States v. Olano, 507 U.S. 725 (1993). “Plain error is 

(1) error, (2) that is plain, and (3) that affects substantial 

rights.” United States v. Depue, 912 F.3d 1227, 1232 (9th 
UNITED STATES V. BECERRA 21

Cir. 2019) (en banc) (internal quotation marks omitted). If 

those conditions are met, we have “the discretion to grant 

relief so long as the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted). We held in Guam v. 

Marquez, 963 F.2d 1311, 1314–15 (9th Cir. 1992), that “all 

jury instructions must be read aloud to the jury in the 

presence of counsel and the defendant.” So the error here 

was plain. But the error here neither affected Defendant’s 

substantial rights nor warrants discretionary relief.

A. Substantial Rights and “Structural” Error

The Supreme Court repeatedly has reserved the question

whether a “structural” error necessarily affects a defendant’s 

substantial rights. See United States v. Marcus, 560 U.S. 

258, 263 (2010) (reserving the question and citing four 

previous cases that have reserved the question). The Court’s 

recent jurisprudence strongly suggests to the contrary:

Despite its name, the term “structural error”

carries with it no talismanic significance as a 

doctrinal matter. It means only that the 

government is not entitled to deprive the 

defendant of a new trial by showing that the 

error was “harmless beyond a reasonable 

doubt.” Chapman v. California, 386 U.S. 18, 

24 (1967). Thus, in the case of a structural 

error where there is an objection at trial and 

the issue is raised on direct appeal, the 

defendant generally is entitled to automatic 

reversal regardless of the error’s actual effect 

on the outcome.

Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017) 

(emphases added) (some internal quotation marks omitted). 
22 UNITED STATES V. BECERRA

But even assuming that structural errors necessarily affect 

substantial rights, the error here was not structural.

“[M]ost constitutional errors can be harmless.” Arizona 

v. Fulminante, 499 U.S. 279, 306 (1991). The Supreme 

Court has recognized only “a very limited class of errors” as 

“structural.” United States v. Davila, 569 U.S. 597, 611 

(2013) (quoting United States v. Marcus, 560 U.S. 258, 263 

(2010)). The requirement that all jury instructions be given 

orally is not among them. We labeled the error in Marquez

“structural.” But the sole reason for applying that label in 

Marquez leads necessarily to the opposite conclusion here. 

We held that the instructional error in Marquez was 

“structural” for one simple reason: “the record is silent 

regarding whether any of the jurors read the instructions that 

were submitted to them,” so we could not assess 

harmlessness. 963 F.2d at 1316.1

Here, by contrast, the district court orally instructed the 

jury to read the written instructions, and each juror 

confirmed in open court that, in fact, he or she had read the 

instructions. The record thus establishes that the jury 

actually received the instructions. To conclude otherwise, 

not only would we have to put aside our ordinary 

presumption that jurors follow their instructions, e.g., United 

States v. Smith, 831 F.3d 1207, 1215 (9th Cir. 2016), but we 

also would have to conclude that a juror affirmatively lied to 

the judge in open court. Nothing in the record supports 

either contention.

1 The defendant in Marquez also objected to the procedure. 963 F.2d 

at 1313. Defendant here did not. That distinction also may matter under 

Weaver, 137 S. Ct. at 1910.
UNITED STATES V. BECERRA 23

The majority acknowledges the foregoing analysis but 

then reasons that “we do not assess whether an error is 

structural on a case-by-case basis. ‘[A] constitutional error 

is either structural or it is not.’ Neder v. United States, 

527 U.S. 1, 14 (1999).” Maj. op. at 13. That reasoning fails 

for two independent reasons.

First, it proves too much. Marquez plainly held that the 

error was structural in that case solely because of the silence 

of the record. If later Supreme Court cases such as Neder

have undermined that reasoning, then Marquez no longer 

controls because it applied an outdated understanding of 

whether an error is structural. Miller v. Gammie, 335 F.3d 

889, 899–900 (9th Cir. 2003) (en banc).

Second, deciding whether a particular error is properly 

labeled “structural” entails a close look at specifics. A 

partial failure to instruct the jury is a non-structural error 

unless the omitted instruction pertains to the burden of proof. 

Neder, 527 U.S. at 8–15. A failure to conduct a trial in public 

is structural error unless the trial court makes certain factual 

findings. Weaver, 137 S. Ct. at 1909. A failure to conduct 

a suppression hearing in public requires a new trial unless

the conclusion of a new suppression hearing is the same as 

the conclusion reached at the original hearing. Waller v. 

Georgia, 467 U.S. 39, 49–50 (1984).

Marquez did not hold that any failure to read aloud the 

jury instructions is structural. Nor did it hold that any failure 

to read aloud the instructions defining the offense is 

structural. Instead, in deciding whether the error was 

“structural,” Marquez asked one and only one question: did 

the record reveal whether the jurors had read the written 

instructions? Only after determining that the record was 

silent on that question did Marquez hold that the error was 

structural. That approach is consistent with, for example, the 
24 UNITED STATES V. BECERRA

Supreme Court’s approach in Waller: the error requires a 

retrial unless other circumstances obviate the need for a new 

trial. Marquez thus held only that, when the record is silent 

as to whether the jurors read the written instructions, the 

instructional error is properly labeled “structural.” Here, by 

contrast, the record is complete as to that critical inquiry and 

demonstrates that the jurors did, in fact, read the written 

instructions. Marquez therefore does not control.

The majority next sets aside Marquez and provides its 

own reasons for concluding that the instructional error here 

is properly labeled “structural.” Maj. op. at 15–18. None of 

the reasons is persuasive. Because the court orally instructed 

the jurors to read the written instructions and later put all 

jurors on the spot to confirm that they had, in fact, read the 

instructions, the proceedings were just as solemn as those in 

which a court reads all the instructions aloud. (The court 

read some of the instructions aloud.) The jury applied the 

correct law, as all the instructions were correct. Many 

people absorb information better in writing. Moreover, there 

is no way to know whether jurors are listening when oral 

instructions are given; some may be daydreaming or 

worrying about a sick relative, for example. Indeed, we 

know more in this case about the jurors’ attentiveness than 

we know in most cases. Though instructions can sometimes 

be difficult to follow, the written instructions in this case 

were not. Nor were they especially numerous. Finally, the 

written instructions are part of the public record, so the 

proceedings were fully public.

I would hold that the error here was not “structural.” 

Because the jury plainly received all the instructions, 

because the instructions were correct, because there were no 

other errors in the trial, and because the evidence of guilt was 

overwhelming, I would hold that the error of not reading all 
UNITED STATES V. BECERRA 25

the instructions aloud did not affect Defendant’s substantial 

rights.

B. Our Discretion

Even if the error here is properly labeled “structural,” we 

still must decide whether to exercise our discretion to order 

a new trial. In Johnson v. United States, 520 U.S. 461, 468–

69 (1997), the defendant argued that an error affected her 

substantial rights because the error was “structural.” The 

Supreme Court expressly declined to decide whether the 

error was structural because, even if the error were 

structural, “it [would] not meet the final requirement of 

Olano.” Id. at 469. It was clear that the error did not affect 

the jury’s verdict, so there was “no basis for concluding that 

the error seriously affected the fairness, integrity or public 

reputation of judicial proceedings.” Id. at 470 (internal 

quotation marks and brackets omitted); see United States v. 

Cotton, 535 U.S. 625, 632–33 (2002) (applying the same 

methodology of declining to decide whether an error was 

structural because the error did not meet the fourth prong of 

plain-error review); see also United States v. Promise, 

255 F.3d 150, 161 (4th Cir. 2001) (en banc) (holding that, 

under Johnson, a reviewing court may decline, under the 

fourth prong of plain-error review, to reverse even a 

structural error).

The same reasoning applies here. Even if the 

instructional error here is properly labeled “structural,” the 

error did not seriously affect the fairness, integrity, or public 

reputation of judicial proceedings because it had no 

conceivable effect on the jury’s verdict. Accordingly, I 

would affirm the judgment.