Cite as: 575 U. S. ____ (2015)
9
Opinion of ALITO, J.
recklessness standard—which the Third Circuit remains
free to adopt. Tr. of Oral Arg. 8:22–23 (“[W]e would say
that recklessness is not justif[ied]”). I would therefore
remand for the Third Circuit to determine if Elonis’s
failure (indeed, refusal) to argue for recklessness prevents
reversal of his conviction.
The Third Circuit should also have the opportunity to
consider whether the conviction can be upheld on harmlesserror grounds. “We have often applied harmless-error
analysis to cases involving improper instructions.” Neder
v. United States, 527 U. S. 1, 9 (1999); see also, e.g., Pope
v. Illinois, 481 U. S. 497, 503–504 (1987) (remanding for
harmless-error analysis after holding that jury instruction
misstated obscenity standard). And the Third Circuit has
previously upheld convictions where erroneous jury instructions proved harmless. See, e.g., United States v.
Saybolt, 577 F. 3d 195, 206–207 (2009). It should be given
the chance to address that possibility here.
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