United States of America, Plaintiff-appellee, v. William T. Wuliger, Defendant-appellant, 999 F.2d 1090 (6th Cir. 1993)

ORDER

Upon consideration of the petition for rehearing filed by the appellee,

It is ORDERED that the petition for rehearing be, and it hereby is, DENIED.

WELLFORD, Senior Circuit Judge, concurring:

As indicated in my initial separate opinion, I find this to be a very close case. United States v. Chan Chun-Yin, 958 F.2d 440 (D.C. Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 3010, 120 L. Ed. 2d 884 (1992), is a basis for finding that the omission in the jury instruction may be harmless error. I find an insufficient basis to dissent from denial of a rehearing, but the court may deem it a proper candidate for rehearing en banc, because this controversy involves a statute and an interesting issue not previously considered by the Sixth Circuit.

This court "should not exercise [its] discretion [to correct the forfeited error] unless the error 'seriously affect [s] the fairness, integrity or public reputation of judicial proceedings.' United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (1936))." United States v. Olano & Gray, --- U.S. ----, ----, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993) (emphasis added). I am not sure that the error in jury instruction did seriously or necessarily affect the fairness and integrity of the proceedings against Wuliger, an experienced trial counsel.