Held: The Court of Appeals' judgment is vacated, and
the case is remanded, since both the Government's concession in its
brief opposing the petition for certiorari that the District Court
erroneously refused to give petitioner's character evidence
instruction to the jury and its contention in this Court that the
error was harmless should be presented to the Court of Appeals in
the first instance.
Certiorari granted; vacated and remanded.
PER CURIAM.
In its brief opposing the petition for certiorari, the
Government concedes that the District Court erroneously refused to
give petitioner's character evidence instruction to the jury, but
argues that the error was harmless. The Government's concession of
error, as well as its harmless error argument, should be presented
to the Court of Appeals in the first instance. The motion of
petitioner for leave to proceed
in forma pauperis and the
petition for writ of certiorari are granted, the judgment of the
Court of Appeals is vacated, and the case is remanded to the Court
of Appeals for consideration of the Government's concession of
error.
It is so ordered.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE
O'CONNOR join, dissenting.
This Court can only deal with a certain number of cases on the
merits in any given Term, and therefore some judgment must attend
the process of selection. Summary disposition is, of course,
appropriate where a lower court has demonstrably misapplied our
cases in a manner which has led to an incorrect result. Here,
however, the Court chooses to summarily vacate a judgment of the
Court of Appeals affirming
Page 464 U. S. 45
petitioner's conviction on the ground that the Government
concedes that the District Court improperly failed to give an
instruction tendered by petitioner. It is also conceded that
petitioner fully argued to the jury his theory of the case,
notwithstanding the District Court's refusal to give his proffered
instruction.
I had thought the days of parsing a trial record to find
isolated instructional errors in a charge to the jury were long
gone. Title 28 U.S.C. § 2111 provides:
"On the hearing of any appeal or writ of certiorari in any case,
the court shall give judgment after an examination of the record
without regard to errors or defects which do not affect the
substantial rights of the parties."
I am confident that the Court of Appeals for the Ninth Circuit,
in deciding this case, was well aware of this provision -- indeed,
perhaps better aware of it than is this Court.
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