Whether a conviction after (a) an incomplete indictment, (b) incorrect jury instructions, (c) failure of the petit jury to make a finding on an essential element of a crime, and (d) an appellate court's reliance of facts not shown to the grand or petit jury, seriously affects the fairness, integrity or public reputation of judicial proceedings

QUESTIONS PRESENTED The Fifth Amendment requires that no person be held to answer for a felony unless on indictment of a grand jury or without due process of law. The Sixth Amendment requires that no person be convicted of a felony except on a finding by a jury that the government has proved its case beyond a reasonable doubt for every element of a crime. Appellate courts agree that conviction in violation of these provisions is error. They disagree, however, on whether to remedy such errors when applying the fourth prong of the United States v. Olano, 507 U.S. 725 (1993) plain error test. They further disagree on which materials appellate courts can rely on when deciding this question. The fourth prong of Olano asks whether an error seriously affects the fairness, integrity or public reputation of judicial proceedings. The questions presented are: 1. Does a conviction after (a) an incomplete indictment, (b) incorrect jury instructions, (c) failure of the petit jury to make a finding on an essential element of a crime, and (d) an appellate court’s reliance of facts not shown to the grand or petit jury, seriously affect the fairness, integrity or public reputation of judicial proceedings? 2. In applying the fourth prong of the plain error test from Olano v. United States to an incomplete indictment or jury verdict with a missing element, can appellate judges rely on information that was not presented to the grand or petit juries in the first instance? ii