In U.S. v. Lewis, No. 06-11876 (July 17, 2006), the Court (en banc), in order to brings its Circuit caselaw in conformity with the 14-year old Supreme Court decision in U.S. v. Olano, 507 U.S. 725 (1993), held that, for error preservation on appeal, a "waiver" is an intentional reliquishment of a known right, whereas the simple failure to assert a right, without any affirmative steps to voluntarily waive it, is a "forfeiture." A waiver abandons the right to appellate review; forfeiture is reviewable under the plain error standard of Fed. R. Crim. P. 52(b).
Turning to whether plain error occurred, the Court found no error at all. Lewis claimed that a Double Jeopardy violation occurred when, after he pled guilty to some counts of the indictment, the prosecution subjected him to a trial on a remaining count to which he had not pled guilty – and for which one count to which he had pled guilty was a lesser-included offense. Double Jeopardy protects only against successive prosecutions, not simultaneous ones. Thus, the trial of Lewis for an offense that was part of the same indictment as the charges to which he pled guilty did not violate Double Jeopardy.
