Can an issue not presented to the district court be raised for the first time on appeal?

MultiRegion, United States of America

The following excerpt is from U.S. v. Allison, 97 F.3d 1461 (9th Cir. 1996):

Issues not presented to the district court generally cannot be raised for the first time on appeal. United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991). This court will consider an issue raised for the first time on appeal: "if (1) there are 'exceptional circumstances' why the issue was not raised in the trial court; (2) the new issue arises while the appeal is pending because of a change in the law, or (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court." Id. Additionally, this court reviews issues raised for the first time on appeal for plain error. United States v. Chan, 82 F.3d 921, 923 (9th Cir.1996). Under the plain error standard, "(1) there must be error, (2) the error must be plain (i.e., clear and obvious), and (3) the error must 'affect substantial rights.' Id. quoting United States v. Olano, 507 U.S. 725, 732-36 (1993). This court will find such error only where necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process. United States v. Burt, 76 F.3d 1064, 1067 (9th Cir.1996).

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