Does Fed. R. Crim. P. 52(b) grant an appellate court discretion to independently find an essential element of an offense for which the defendant was not indicted, nor tried, nor convicted, using evidence never presented to a grand or petit jury?

QUESTIONS PRESENTED The Defendant was indicted, convicted at trial, and sentenced under 18 U.S.C. § 922(g)(1) in the absence of notice of, or opportunity to defend, the element of mens rea set forth in 18 U.S.C. § 924(a)(2), and in the absence of a finding of this element by a grand or petit jury. Pursuant to the fourth prong of “plain error” review, the First Circuit affirmed the conviction because it found, from its review of evidence outside the trial record, that the grand and petit juries would have found the omitted element of mens rea if presented with such evidence. The questions presented are: Does Fed. R. Crim. P. 52(b) grant an appellate court discretion to independently find an essential element of an offense for which the defendant was not indicted, nor tried, nor convicted, using evidence never presented to a grand or petit jury? Does an appellate court’s affirmance of a conviction under these circumstances violate due process under this Court’s decisions in Cole v. State of Arkansas, 333 U.S. 196 (1948) and Dunn v. United States, 442 U.S. 100 (1979)? ii