United States v. Wells, 519 U.S. 482, 7 (1997)

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488

UNITED STATES v. WELLS

Opinion of the Court

Appeals have stated more broadly under the "invited error" doctrine " 'that a party may not complain on appeal of errors that he himself invited or provoked the [district] court . . . to commit.' " United States v. Sharpe, 996 F. 2d 125, 129 (CA6) (quoting Harvis v. Roadway Express, Inc., 923 F. 2d 59, 60 (CA6 1991)), cert. denied, 510 U. S. 951 (1993). But however valuable these doctrines may be in controlling the party who wishes to change its position on the way from the district court to the court of appeals, they cannot dispositively oust this Court's traditional rule that we may address a question properly presented in a petition for certiorari if it was "pressed [in] or passed on" by the Court of Appeals, United States v. Williams, 504 U. S. 36, 42 (1992) (internal quotation marks and emphasis omitted). Accordingly, we have treated an inconsistency between a party's request for a jury instruction and its position before this Court as just one of several considerations bearing on whether to decide a question on which we granted certiorari.5 See Springfield v. Kibbe, 480 U. S. 257, 259-260 (1987) (per curiam).6 Here, it seems sensible to reach the question presented.

5 Respondents offer variations on their "law of the case" and "invited error" doctrines. In addition to arguing that the "law of the case" doctrine holds the Government to the position it took on the jury instructions, respondents contend this doctrine holds the Government to the position it adopted in the indictment. See Brief for Respondents 14-16 (citing United States v. Norberg, 612 F. 2d 1 (CA1 1979)). For the reasons set forth in the text, this latter version of the doctrine does not stand in our way to reaching the question presented.

Along with arguing that the Government "invited error" in the District Court by proposing its jury instructions, respondents claim that the Government invited error in the Court of Appeals by failing to argue that materiality is not an element of 1014 in its initial brief to that court. This claim is wrong. After the Court of Appeals requested supplemental briefing, the Government argued that materiality is not an element of 1014 and therefore hardly "invited" that court's contrary ruling.

6 In Springfield v. Kibbe, 480 U. S., at 259, the Court dismissed the writ of certiorari on prudential grounds in part because the petitioner there, like the Government here, sought "to revers[e] a judgment because of

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