Invited Error Waives Appellate Review of Omitted “Materiality” Element in 18 U.S.C. § 152(3) Jury Instructions

I. Introduction

In United States v. Mitchell (10th Cir. Mar. 23, 2026), Richard Villanueva Mitchell appealed his conviction for making a false bankruptcy declaration under 18 U.S.C. § 152(3). The appeal focused narrowly on jury instructions: Mitchell argued the district court committed plain error by failing to instruct the jury that the false declaration must be material.

The Tenth Circuit did not decide whether “materiality” is, as a substantive matter, an element of § 152(3). Instead, it resolved the case on a procedural doctrine with dispositive force: invited error. Because Mitchell proposed (and affirmatively defended) an instruction that omitted materiality—and objected to the government’s effort to include it—the court held he waived any claim of instructional error and was therefore barred from appellate relief.

Although issued as a nonprecedential “Order and Judgment,” the decision crystallizes a practical rule for trial litigation in the Tenth Circuit: a defendant cannot engineer the omission of an element from an instruction and later seek reversal based on that same omission.

II. Summary of the Opinion

The court affirmed Mitchell’s § 152(3) conviction. It held:

  • Mitchell invited any error regarding the omission of a “materiality” element by proposing an instruction without it and objecting to the government’s inclusion of it.
  • Invited error operates as waiver, which forecloses appellate review—including review under the plain-error standard.
  • Mitchell’s attempt in reply to reframe the record (suggesting government complicity or lack of invitation) failed because the record showed the government proposed a materiality element and Mitchell opposed it.

III. Analysis

A. Precedents Cited

1. United States v. Teerlink, 141 F.4th 1126 (10th Cir. 2025)

The panel anchored its analysis in United States v. Teerlink, quoting the doctrine’s core formulation: invited error prevents a party who induces an erroneous ruling from having it set aside on appeal. Teerlink supplies the organizing principle that the court applied mechanistically to the instruction dispute: if the appellant caused the alleged mistake, the appellant cannot use it as a basis for reversal.

2. United States v. Cornelius, 696 F.3d 1307 (10th Cir. 2012)

The court relied on United States v. Cornelius for the proposition that invited error “embodies a waiver theory”—and that waiver precludes appellate relief. This is significant because it draws the boundary between:

  • Forfeiture (often reviewed for plain error), and
  • Waiver (not reviewed because the right was intentionally relinquished).

By invoking Cornelius, the panel characterized Mitchell’s position as an intentional litigation choice, not a mere oversight.

3. United States v. McBride, 94 F.4th 1036 (10th Cir. 2024)

United States v. McBride provided the jury-instruction-specific articulation of invited error: when a defendant affirmatively approves an instruction (or urges the court to adopt it), appellate review is foreclosed. The panel also quoted McBride for a targeted rule: invited error precludes a party from arguing the district court erred “in adopting a proposition that the party had urged the district court to adopt.”

This mattered because Mitchell attempted to argue he did not “get the result he sought” since the district court did not adopt all his proposed language. McBride allowed the court to isolate the relevant “proposition” (omitting materiality) and treat success on that point as sufficient to trigger invited error—regardless of whether Mitchell lost other wording disputes in the same instruction.

4. United States v. Gaudin, 515 U.S. 506 (1995)

United States v. Gaudin arose in the pretrial instruction dispute: Mitchell objected that the government’s materiality element was not mandated by Gaudin, suggesting materiality’s status as an element was uncertain. The Tenth Circuit’s decision is notable because it declined to reach the merits of that underlying question. Instead, it held Mitchell’s trial stance (opposing materiality) barred him from seeking appellate correction, even if materiality were “essential.”

Thus, Gaudin functions here as a backdrop: it explains why the parties fought about materiality, but it did not drive the appellate result.

5. United States v. Ibarra-Diaz, 805 F.3d 908 (10th Cir. 2015)

In a footnote, the court cited United States v. Ibarra-Diaz for an appellate preservation principle: arguments not raised in the opening brief are not considered. This reinforced that the appeal was confined to the § 152(3) instruction issue and did not extend to other convictions.

B. Legal Reasoning

1. The court framed the issue as waiver, not instructional correctness

Mitchell styled his claim as plain error—a standard typically used when an appellant failed to object below. The panel rejected that framing by characterizing the case as invited error, which is stronger than mere non-objection: it is affirmative inducement.

2. The record established affirmative inducement

The opinion emphasized multiple record facts demonstrating that the omission of materiality was not accidental:

  • The government proposed an instruction expressly requiring that “the false statement or declaration was about a material matter.”
  • Mitchell proposed an instruction that omitted any materiality element.
  • Mitchell objected to the government’s inclusion of materiality, urging its deletion.
  • When the court circulated proposed instructions omitting materiality, Mitchell did not object to that omission (despite objecting to other language).

This combination (proposal + objection to inclusion + acquiescence in final instructions) made the appellate claim untenable under the invited-error doctrine.

3. The reply-brief “no invitation” theory failed on the facts and on doctrine

Mitchell argued the government was complicit or that he did not invite the error because the district court did not adopt all his proposed language. The panel rejected both points:

  • Factually: the government did include a materiality element; Mitchell’s contrary representation was “belied by the record.”
  • Legally: losing some wording disputes does not negate that Mitchell succeeded in persuading the court to omit materiality—the specific feature he later attacked.

4. The merits question (is materiality an element of § 152(3)?) was intentionally left undecided

The court’s holding is procedural: Mitchell could not obtain review of the omitted-element claim at all. This is important because the decision does not announce a substantive rule about § 152(3)’s elements; rather, it announces a litigation-conduct consequence: inducing an omission forecloses appellate attack.

C. Impact

1. Trial strategy consequences in white-collar and bankruptcy-fraud prosecutions

The decision reinforces that defendants must treat jury-instruction negotiations as binding strategic commitments. If the defense chooses to oppose an element (such as “materiality”) to narrow what the government must prove, that choice can become irrevocable on appeal if the court adopts it.

2. Limits on “plain error” as a safety net

The ruling underscores a practical hierarchy:

  • Plain-error review may correct unpreserved mistakes arising from forfeiture.
  • No review is available for mistakes the appellant intentionally caused (waiver/invited error).

This distinction is especially consequential for omitted-element claims, which might otherwise seem categorically serious.

3. Appellate record discipline

The court’s pointed correction of Mitchell’s reply-brief characterization of the government’s proposed instruction signals that litigants should expect close record scrutiny where invited error is alleged. Misdescribing what occurred below can be fatal, particularly when the dispositive question is who proposed what.

IV. Complex Concepts Simplified

  • Materiality: A fact or statement is “material” if it matters—i.e., it has a natural tendency to influence, or is capable of influencing, the relevant decision-maker (here, the bankruptcy process). The opinion assumes the debate but does not decide whether § 152(3) requires it.
  • Jury instruction element: The government must prove each “element” of a crime beyond a reasonable doubt. Jury instructions list those elements so jurors know what must be found to convict.
  • Plain error: A limited appellate review standard sometimes available when a party failed to object in time, requiring (typically) a clear error affecting substantial rights and the fairness/integrity of proceedings.
  • Forfeiture vs. waiver:
    • Forfeiture is an inadvertent failure to timely assert a right; it can permit plain-error review.
    • Waiver is an intentional relinquishment of a known right; it generally eliminates appellate review.
  • Invited error: A form of waiver where a party not only fails to object but actively causes or encourages the trial court’s action—then tries to complain about it on appeal.

V. Conclusion

United States v. Mitchell is a clear application of the Tenth Circuit’s invited-error doctrine to jury instructions: when a defendant proposes (and defends) an instruction that omits a disputed element—here, “materiality” for a § 152(3) false bankruptcy declaration—the defendant waives the ability to challenge that omission on appeal. The opinion’s significance lies less in bankruptcy-fraud doctrine than in appellate procedure: it confirms that invited error is a hard bar to relief, preventing defendants from recharacterizing deliberate trial choices as reversible “plain error” after conviction.