Speak Now or Forever Hold Your Peace: Tenth Circuit Finds That a Party Must Provide Grounds to Preserve a Request for Action Under Criminal Rule 51(b)

United States v. Capps, No. 23-3095 (10th Cir., Aug. 13, 2024).

Author: Remi Moeller, Staff Editor

Issue: Under Federal Rule of Criminal Procedure 51(b), can a party preserve an argument for appeal by merely asking the court to take action without explaining the grounds for the request?

Answer:  No.

Facts:  During Defendant Michael Capps’s trial, the court refused his request to reread jury instructions after the presentation of evidence.  On appeal, Defendant argued that the court reversibly erred by declining to reread the instructions.  Defendant argued that he properly preserved this argument under Fed. R. Crim. P. 51(b), which states “[a] party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.”^[1]  Defendant asserted that Rule 51(b) only required him to inform the court of the grounds for his request if he was objecting to an action, not when he was informing the court of some action he wished the court to take. 

Discussion:  The Tenth Circuit interpreted Fed. R. Crim. P. 51(b) as requiring a party to inform the court of the grounds for the request or objection regardless of whether the party requests or objects to a court action. The court reached its conclusion for two main reasons.  First, the natural reading of Rule 51(b) before the Criminal Rules were restyled supported this interpretation—the restyling of language was not meant to restructure the substance of the rules.^[2]  Second, under amended Fed. R. Civ. P. 46, which was intended to be analogous to Criminal Rule 51(b), parties must state the grounds for their request or objection regardless of whether the party requests or objects to a court action.^[3]  Both the original meaning of Fed. R. Crim. P. 51(b)  and the amended version of Fed. R. Civ. P. 46 were contrary to Defendant’s position.

Key Authorities: United States v. Capps, No. 23-3095 (10th Cir., Aug. 13, 2024); Fed. R. Crim. P. 51(b); Constien v. United States, 628 F.3d 1207, 1215 n.7 (10th Cir. 2010).

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^[1]  Fed. R. Crim. P. 51(b).

^[2]  Fed. R. Crim. P. 51 (1946); Constien v. United States, 628 F.3d 1207, 1215 n.7 (10th Cir. 2010); compare Fed. R. Crim. P. 51(b), with Fed. R. Crim. P. 51(b) (1988) (adding a comma separating the two clauses and changing the phrase “grounds therefor” to “grounds to that objection”).

^[3]  Fed R. Civ. P. 46; Fed R. Civ. P. 4 advisory committee’s notes to 2007 amendment.