United States v. Guy Giovannetti and Nicholas Janis

ON PETITION FOR REHEARING

The government’s petition for rehearing (limited of course to our ordering a retrial for Janis, 919 F.2d 1223), raises two issues that require comment, one very briefly: the giving of the ostrich instruction in this case was a legal error, so the abuse of discretion standard did not apply to our review of it. Second is the government’s claim that harmless error is non-waivable. This raises a novel and interesting question that requires more extended discussion.

The basis of the government’s claim is the text of Rule 52(a) of the Federal Rules of Criminal Procedure:…