Petitioners Brief — United States v. Olano

In the Supreme Court of the United States

OCTOBER TERM, 1992

UNITED STATES OF AMERICA, PETITIONER

GUY W. OLANO, JR.. AND RAYMOND M. GRAY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor (sé rie ral

ROBERT S. MUELLER, II]

A ssistant Attorne 7] Ge re ral

WILLIAM C. BRYSON

De puty Solicitor Gene ral

WILLIAM K. KELLEY

Assistant to the Solicitor General

JOEL GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

f AO2) 5] 4-22] 7

eS Be,

Se eee

QUESTION PRESENTED

Whether allowing alternate jurors to be present

during jury deliberations is automatic reversible

error, even when the defense consents to that pro-

cedure.

TABLE OF CONTENTS

Page

Op T) Thi De VA ]

urisd ]

Federal ru nvolved )

statement 3

Summary of argument 7

\rgument

Respondents forfeited their Rule 24(c) claim be

Cause {ney did not obiect to the presence of alter

nate jurors in the jury room during deliberations LO

\. Respondents failed to object to permitting the

allernate jurors to retire with the jury 10

B. The contemporaneous objection rule bars re

pondents from obtaining review of their Rule

24(c) claim 12

‘ The district court’ failure to discharge the

aiternate jurors at the time of jury deliberation

was not plain erro! 15

D. Respondents’ personal consent was not nece

sary for a valid forfeiture of their Rule 24(c)

claim 26

nclusion 0)

TABLE OF AUTHORITIES

AsSscs

lpodaca V. Oregon. 406 U.S. 404 972) »?

inmizona V. Fulminante. 111 S. | ’AG (1991) 17

Ballew v. Georgia. 435 U.S. 228 (1978) 91. 29

Brown V. Wainwright, 665 F.2d 607 (5th Cir

19R? ) 2()

Burch Vv. Lowisiana, 441 U.S. 130 (1979) 22

Clark v. United States, 289 U.S. 1 (1933) 22

Davis V. United States ,411 U.S. 238 (1973) 19, 20

Duncan V. Louisiana, 391 U.S. 145 (1968) 22

Estelle Vv. Williams, 425 U.S. 501 (1976) 12, 13, 14, 27

(III)

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171 U.S. 307 (1985)

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154 U.S. 867 (1981)

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} / i166 US. 66R (1984

iR4 | ~ 100) (19RR)

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i? Ss. Ct. 130 (1990)

B (, 464 F.2d 468 (10th Cir

i / 5 Ty’ Ss 159 (19OR? )

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v. Ma 694 F.2d 1270 (D.

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Weck 1, 954 F.2d fldgith Cir

Ml ,, 863 F.2d 1319 (7tI

cert. denied. 489 T7S 7 7 (19R9)

\ ‘ ‘ fet 739 } Id 133m (7th

ert. denied, 469 U.S. 1111 (1985)

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Iu the Supreme Cowt of the Wuited States

OCTOBER TERM, 1992

No. 91-1306

UNITED STATES OF AMERICA, PETITIONER

.

GUY W. OLANO, JR., AND RAYMOND M. GRAY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals ( Pet. App.

la-32a) is reported at 934 F.2d 1425.

JURISDICTION

The judgment of the court of appeals was entered

on May 31, 1991. A petition for rehearing was

denied on October 18, 1991. Pet. App. 33a. On Jan-

uary 7, 1992, Justice O’Connor extended the time for

filing a petition for a writ of certiorari to and in

cluding February 15, 1992. The petition was filed

on February 11, 1992, and was granted on May 18,

1992. The jurisdiction of this Court rests on 28

.8.C. 1254(1).

*- .

FEDERAL RULES INVOLVED

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ears rne ef te ig 1a ‘ { rnat 1) "7 | ey

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ect to a ruling or orde? ne avsence oO!

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Ov Te on aoes no nereatter pr Lice a Da

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Federal Rule of Criminal Procedure 52 provid

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(a) Harmless Error. Any error, defect, irre

larity or variance which does not affec 1D

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stantial rignts shall he GIsret arc

(hb) Plain Error. Plain errors or defects ai!

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3

STATEMENT

Following a three-month trial in the United States

District Court for the Western District of Washing-

ton, a jury convicted respondents of conspiring to

defraud the United States by defrauding several

thrift institutions, in violation of 18 U.S.C. 371; will-

fully misapplying federally insured funds, in viola-

tion of 18 U.S.C. 657; making false statements in

connection with a federally insured lending institu-

tion, in violation of 18 U.S.C. 1006; and transport-

ing stolen money in interstate commerce, in violation

of 18 U.S.C. 2314. Respondent Gray was also con-

victed of wire fraud, in violation of 18 U.S.C. 1343

and respondent Olano was also convicted of making a

,

false statement on a loan document, in \“vlation of

IS U.S.C. 1014 Respondents were each sentenced

to 15 years’ imprisonment, to be followed by five

years’ probation, and they were ordered to pay resti-

ition. See Pet. App. 2a, 4a-5a.

l. The evidence at trial showed that Olano was

chairman of Alliance | ederal Savings and Loan

\ssociation in Kenner, Louisiana. Gray was the

chairman of Home Savings and Loan Association in

Seattle, Washington. Along with several co-defend-

ants, Gray and Olano engaged in an elaborate scheme

)

to defraud the savings and loan institutions they con-

trolled by making a series of unauthorized loans and

fraudulent extensions of credit, and by paying kick-

backs from loan proceeds. Pet. App. 3a-4a

2. During pretrial proceedings, the parties agreed

that 14 jurors would be chosen at the outset of trial,

with two of the 14 to be desi nated as aiternates at

the close of the case. See J.A. 20-23; Feb. 5, 1987

]

' 17 or ‘ 7) } ;

lr Li-22 Af that time, each side Wwouid select one

juror to be an alternate. That procedure was fol-

d

*

|

lowed, and a total of 14 jurors were chosen. All 14

were treated alike throughout the trial.

At the end of trial, the district court suggested that

the two alternate jurors be allowed to remain with

the jury during deliberations. The court told the

parties:

{I ]}t’s just a suggestion and you can—if there

is even one person who doesn’t like it we won’t

do it, but it is a suggestion that other courts have

followed in long cases where jurors have sat

through a lot of testimony, and that is to let the

alternates go in but not participate, but just sit

in on deliberations.

[It’s strictly a matter of courtesy and I know

many judges have done it with no objections from

counsel. One of the other things it does is if they

don’t participate out they’re there, if an emer-

gency comes up and people decide they’d rather

go with a new alternate rather than 11, which

the rules provide, it Keeps that option open. It

also keeps people from feeling they’ve sat here

for three months and then get just kind of kicked

out. But it’s certainly not worth—unless it’s

something you all agree to, it’s not worth your

spending time hassling about, you know what I

mean? You’ve got too much else on vour mind.

* I don’t want it to be a big issue; it’s just a sug-

gestion. Think about it and let me know.

J.A. 79: Tr. 10,400.

Later that day, counsel for Gray expressed reserva-

tions about the court’s proposal. The following col-

loquy occurred:

THE COURT: [H]ave you given-any more

thought as to whether you want the alternates

to go in and not participate, or do you want

them out?

o

MR. ROBISON [counsel for Gray]: We would

ask they not.

THE COURT: Not.

J.A. 82; Tr. 10,609. The next day, however, the court

determined that the defendants did not object to per-

mitting the alternates to retire with the jury. The

court said:

; THE COURT: Well, counsel, I received your

alternates. Do I understand that the defendants

now—it’s hard to keep up with you, Counsel.

It’s sort of a day by day—but that’s all right.

You do all agree that all fourteen deliberate?

Okay. Do you want me to instruct the two

alternates not to participate in deliberation?

MR. KELLOGG [counsel for co-defendant Hil-

ling]: That’s what I was on my feet to say.

It’s my understanding that the conversation was

the two alternates go back there instructed that

they are not to take part in any fashion in the

deliberations.

J.A. 86; Tr. 10,736.

After that discussion, the district court instructed

the jury. At the end of the instructions, the court

explained that two of the jurors would be designated

as alternates. The alternates, the court explained,

would be allowed to retire with the jury, but would

not be permitted to participate in the deliberations.

J.A. 89-90; Tr. 10,802-10,803. The court then told

the jury for the first time which of the jurors were

the alternates. /bid. The jury retired to deliberate,

accompanied by the two alternates. One of the alter-

nates later asked to be excused, and the district

court granted the request. The other remained with

the jury until it reached a verdict. Pet. App. 7a n.7.

3. The court of appeals reversed. Pet. App. la-

32a. The court noted that Fed. R. Crim. P. 24(c)

requires the district court to discharge the alternates

ir retires to deliberate. The court the

fore held that the district court’s fal

the alternates violated Rule 24(c). Pet. App. 30a.

The court acknowledged that neither respondent

; : 2 ’ 4 eon |

hiected to the district court’s decision to retain thi

1+ ynoT +} , . + w th sy" . _ 1 ° ; ic] »)y* it

aiver}] e 7Urors AaLlLe!l ne jurv retired to consider 1ts

verdict, Pet. App. 22a. and it assumed, arquend

4} ee , . — — —

tnat counsel! tor co-ce fendant Hilling spoke tor all

sl. } . 1 4 . , v > ’

the defendants when he specifically consented to the

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procedure. ad. at Zia. The court further recognized

that, because respondents did not object to sendin

the alternates into the jury room, the district court’

action was reviewable only under the plain error

standard. Id. at 22a-23a Nonetheless, the court of

ippea! eld that pr rmitting alternates to be present

; a ; : se : ‘cs

during deliberations is pialn error, because l lTl-

herently” prejudices defendants by

infring| ing |

ipon the jury’s privacy and the secrecy of the jury

process.” /d. at 28a. The court stated that it could

not determine whether the alternates had obeyed the

district court’s instruction not to participate in th

deliberations. Moreover, the court added, even if the

alternates attempted to follow the court’s instruc-

tions, their “‘attitude[s], conveyed by facial expres-

sions, gestures or the like, may have had some effect

upon the decision of one or more jurors.” Jbid.

The court acknowledged that a defendant can

waive his objection to a violation of Rule 24(c),

but only if the defendant himself, rather than his

counsel, personally consents on the record to the pro-

cedure. Because “[n]othing in the record suggests

that the defendants intelligently and knowingly con-

sented personally to a waiver of their rights under

7

the Rule,” the court held that there was no waiver in

this case. Pet. App. 27a-28a.

In sum, the court held that “[a]bsent a valid per-

sonal waiver by the defendants, allowing alternate

jurors to be present during jury deliberations .

requires reversal.” Pet. App. 30a. Although respond-

ent Olano was the only defendant who raised the

issue on appeal, the court applied its ruling to re-

spondent Gray as well to avoid a “manifest injus-

tice.” Id. at 30a-3la.’

SUMMARY OF ARGUMENT

The district court in this case violated Rule 24(c)

of the Federal Rules of Criminal Procedure by per-

mitting the alternate jurors to observe the jury’s

deliberations. Respondents failed, however, to object

to the Rule 24(c) violation, and in fact the record

indicates that their counsel consented to the procedure.

The court of appeals recognized that, because of

respondents’ failure to object, the Rule 24(c) viola-

tion was reviewable on appeal only for plain error.

The plain error doctrine creates a narrow exception

to the contemporaneous objection rule, one that is

to be applied only when a miscarriage of justice

would otherwise result. To satisfy that standard, a

reviewing court must find that the claimed error not

only seriously affected the defendants’ rights, but

also that it had an unfair prejudicial impact on the

trial.

The error in this case did not remotely satisfy

that standard. The court of appeals found plain

' The court of appeals also held that there was insufficient

evidence to support respondents’ convictions under 18 U.S.C.

1006. Pet. App. 13a-17a, 18a-20a. That ruling is not before

this Court.

rror 1n this case by con ‘hud ne that nermitting a\lter-

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nate rors Oo ovserve ury delibera ions 18 inne}

en ' rt l( la an al requires eversa

every case, revgardaiess of whether any specine prej,u

lice flowed from the error. That conclusion, howeve}

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renect er] ] MISANDLICATION OT the plain erro!

loctrine. and it confuses harmless error and p

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that the error in this case was “inherently

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ire no nye o harmles error analy 5 unde) i

R. Crim. P. 52(a). But the harmless error and plai

error doctrines serve different purpeses, and the f:

that a particular error can never bé harmless within

>

r of Rule 52(a) does not mean that suc!

t

an error is alwavs “plain” within the meaning o

In any event, the eourt of appeals erred in con-

cluding that the procedure followed in this case

inherently prejudicial. There is as much reason to

ippose that the alternate jurors favored acquitta!

is conviction, and the increase in the number of

jurors in the jury room probably favored the de-

fense, since a larger number of jurors general)

makes conviction less likely. Moreover, there was no

constitutional infirmity in permitting the alternates

to observe the jury deliberations; even if the alter-

nates are regarded as extra jurors for that purpose,

this Court has never suggested that the Constitution

imposes a maximum limit of 12 on the size of a jury

The court of appeals also erred in h ding that the

presence of the alternates in the jury room requires

reversal because it resulted in an invasion of the

privacy of the jury’s deliberations In virtually ever

respect, alternate jurors are indistinguishable from

,

Y

regular jurors. They are subject to the same selec-

tion process as regular jurors, have the same qualifi

cations, take the same oath, and, unti! the beginning

of deliberations, perform exactly the same functions.

lt is therefore unrealistic to characterize the alter-

nate jurors as strangers to the jury in the way that

a true outsider to the process would be.

finally, there is no basis for the court of appeals’

conclusion that respondents’ personal consent was

necessary for an effective waiver of their right not

to have alternate jurors present during deliberations.

With respect to most rights of the defendant in the

criminal justice process, the defendant’s attorney is

authorized to make decisions that reSult in the for-

feiture of those rights without the, need to obtain a

record recital of the defendant’s personal and in-

formed consent. Although this Court has recognized

exceptions to that rule, the exceptions all involve de-

cisions that have sweeping consequences for the de-

fendant, such as whether to be represented by coun-

sel, whether to plead guilty, and whether to waive

a jury.

The decision to permit alternate jurors to retire

with the regular jurors during deliberations is not

the sort of fundamental trial decision that the de-

fendant must make personally. In concluding other-

wise, the court of appeals noted that requiring

personal consent from the defendant “alerts the de-

fendant to the fact that a waiver of Rule 24(c)’s

protections may affect the outcome of his case.” Pet.

App. 26a. We doubt the validity of that proposition,

but in any event, the same thing could be said of

countless other decisions at trial that are undoubt-

edly subject to waiver by counsel. Nothing about the

decision at issue in this case made it improper for

that decision to be made by counsel, as the defend-

10

ants’ representatives, rather than by each defendant

personally.

ARGUMENT

RESPONDENTS FORFEITED THEIR RULE 2i(c)

CLAIM BECAUSE THEY DID NOT OBJECT TO THE

PRESENCE OF ALTERNATE JURORS IN THE JURY

ROOM DURING DELIBERATIONS

We agree with the court of appeals and respond-

ents that the district court violated Rule 24(c) of

the Federal Rules of Criminal Procedure when it

failed to discharge the alternate jurors at the time

the jury of 12 retired to deliberate. Rule 24(c)

provides that “[a]n alternate juror who does not

place a regular juror shall be discharged after the

jury retires to consider its verdict.”” The Rule does

not authorize the district court to follow a different

course if the parties agree; we therefore acknow!l-

edge that permitting the alternates to retire with the

jury during deliberations was error.

The dispute in this case is over the consequences

of that error. We submit that the court of appeals

was wrong in concluding that. the failure to dis-

charge the alternate jurors was plain error that re-

quired reversal of all of respondents’ convictions. In

uur view, the error in this case did not approach the

level of plain error. By failing to interpose a con-

temporaneous objection, respondents accordingly for-

feited their right to object to that error on appeal

and seek relief based on that claim.

A. Respondents Failed To Object To Permitting The

Alternate Jurors To Retire With The Jury

The court of appeals found that respondents’ coun-

el did not object to the presence of the alternates

in the jury room during deliberations, Pet. App. 2<a,

ind { iSSUITTi l, a lend tLnat Ins¢

lefendant oKe Tor all the lefendant

lly ( sented to the procedure P

The court was clearly correct in fi il!

ents a not opject to thi roceaure, a

S101 tnat counsel 10) Lf -cdef« La |

tne} defendants, LT ding res pe ndent

iffirmatively consented to the procedu

mpelled by the record

When the district court first raised 1

mitting the alternate jurors to “sit in o1

f iLIONS, COUNSEe! IO) lay slate l, We

they not }.A. 82; Tr. 10,609. The nex

ever, the district court addr ed

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defendants and said—apparently refer

earlier, off-the-record conversatio1

that the defendants now * * You do a

all fourteen deliberats No I Ci ore

ourts characterization of the defenda

mtne mattlel The court the Ked Uv

me to instruct ne two aiternates |! L wo

in deliberations?” Pet App Da in n

was a statement by COUNS«* LO} o-certend:

that “It’s my understanding that the «

vas the two alternates go back ler nst

hey are not to take part in any fashion |

era . J.A. 86; Tr. 10,736. Althoug!

court had earlier made it clear that the

would not be permitted to retire wit!

Lnel Was any prection { ‘T1}f tner

person who doesn LA il Wwe wont ao il

lr} 10.400 } none f the defendants }

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jury. No complaints or reservations

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: ; ; . ; : : nciey +}

‘ Lam wa awiVvecdai it ‘

I

‘ " ? ’

’ ‘ | ‘ c*% j | Bel ‘ ) ey ] ) ~ ] }

. ] ‘

’ ’ 7 ae ’ | ;

, , » +) : > »? ,

| ned ati i ‘ LO! J a ' ny cA tl LUA ,

; +} ; } ring ! } Tic

i al ‘ ‘ Yy Vuuld Y UClVeEl aviv

‘ + ‘ 7 . > ‘ ‘ " yy) ‘ ++ "

( ‘ 2 sit il : sical ” it a‘ ail . JVs : a

‘ . ‘ , ‘ | ; : :

to requeée or agree tO a particular proceaulht

. ,

" ‘ a, : . '

i tnel a eal InvoKe e error aS a Dasi LO}

>]

_~ “Oy j red STate . And j yy | Za

' "

| , > © int th

990) (“Having persuaded the court to adopt thelt

" ;

+ ‘ ’ »y" ahi i ’ Fr niTrsc

al. ratnel nan the governments, daetendan

" . } . +} i

1id noi De aliowed LO circumven ne AiivLia

. 1 +} os : — .

. ~ DY Cna engi! YJ on apvpe a Litt ial COU! ~~ de-

. Ii

. , "

' n 1 lopt it.”"). To recognize such claims wou

, " > > :

ie an incentive to inject error Into he proceed-

+1 ; i ’

. > ‘%

o mn tne nope OL creavuIng an issu na oul r

] ‘ ; . »+ ~

sed OT al Le a iti Une evel Ui a COnY it ion ct

| —~* ’ 4a) >] ‘ . ’

He j / » SER bi” I ~ tt0 1) (] IDD

‘1 | ’ ¥ | "fT } ’ ] cry ’

vi f f nen a Geienddl Ul is UUTISt Aapicces ;

, + > > > :

j Sct na Dal CUlal®r ¢ irse OL aCvulon a

t is ear that the parties have adverted to the 3Sue

" ‘ ‘ ‘ ' , ‘

i +) ’ rhs 1a ire MY one at ne roa A‘

CL re] ‘ fy? natlten tl On) THe nari QT OUTS se

I n ther ’ Olar proceeding pr e. raised the le

nd he did by arguing that permitting the alternat

to retire with the jury violated his “right to a jury of ex

12 member a “right” that this Court has held not t

t. See VV ams V. Florida, 399 U.S. 78 (1970). The court

| — a | ind t! 1 argument suffi ent t ais tne Ru .

4 atiol ind that olation to be plain error, and

that holding to respondent Gray—whe as repre

ented | counsel, but did not properly raise the argumen'

even on appeal—because in the court's view it w ild be a

manifest injustice” not to do so. Pet. App. 30a

15

sons, defendants like respondents who agree to a

particular procedure, even more than defendants who

merely fail to object, should forfeit the right to claim

n appeal that the district court erred in adopting

that procedure.‘

C. The District Court’s Failure To Discharge The Alter-

nate Jurors At The Time Of Jury Deliberations Was

Not Plain Error

Although treating the case as one in which re-

spondents failed to preserve their claim in the district

court, the court of appeals nonetheless reversed re-

spondents’ convictions by holding that the Rule 24(c)

violation constituted “plain error.” That holding, we

submit, reflects a serious misapplication of the plain

error rule.

Under Ruie 52(b), Federal Rules of Criminal! Pro-

cedure, an appellate court may take cognizance of

“plain errors or defects affecting substantial rights”

even in the absence of an objection. The rule is a

narrow exception to the contemporaneous objection

rule, an exception that “is to be used sparingly, solely

in those circumstances in which a miscarriage of ]us-

tice would otherwise result.” United States v. Frady.

‘Every court of appeals has recognized that principle,

ling that, except perhaps in the most exceptional circun

tances, a defendant should not be able to win reversal of

his conviction based on a trial error that he invited. See. e.a

United States Vv. Muskovsky, 863 F.2d 1319 (7th Cir. 1988).

cert. denied, 489 U.S. 1067 (1989); People of the Territory

of Guam VY. Alvarez, 763 F.2d 1036, 1088 (9th Cir. 1985):

United States V. Young, 745 F.2d 733, 752 (2d Cir. 1984).

cert. denied, 470 U.S. 1084 (1985) ;: United States v. Mangieri

694 F.2d 1270, 1280 (D.C. Cir. 1982) ; United States v. Whit:

377 F.2d 908, 911 (4th Cir.) (a defendant “may not effectively

mplain that his own trial! strategy denied him his consti-

tutional rights’), cert. denied, 389 U.S. 884 (1967)

S. 152. 163 n.14 (1982). it ld be invoke

ecL O! particulal j eogregiou errors, Ul

f Ou y aliect aitl f VY 0

re lla nm ol udicial proceed i t nite

Young, 470 U.S. 1, lo (1980) tio

5. | satisfy that standard, a reviewing < rl

‘find that the claimed error not oniy serious

1] ‘substantial rights,’ but that it had an untfall

mpa yn the ti Id. at 17 n.14. TI

on of Rule 24(c) in this case did not approac!

.

abie to point to any specilic prejudice Lnat

room during deliberations. Inst

it based its plain error ruling on the conc!

hat permitting alternates to retire with the

herently prejudicial,” Pet. App. 28a, and

lires reversal in every case, regardless

of appeals nor tne respondent

lents suffered as a result of the alternates’ pres

er any specific prejudice flowed from the error

f 1} of appeals’ re ance on the innere!l !

rationale to find plain error is wrong 1!

ts. First. it is contrary to this Court’s adm

at ia] pe 3€ app! ich t pia error rey

al” 7 tod States . Young. 470 I'S at

sé nd. the error in this case was not, i

nherently prejudicial.”

\s this Court has emphasized, it is not e1

| that an error has been committed: in order

ewing court to find plain error, it must

he error adversely affected the defendant

| Vi The re ewing court must find

’ ' rt na r tna iT rT

CW

ne ror “had an unfair prejudicial imnact on the

elberatiol which means that the erro)

I f ] er ect the lairne of the lid il

riputed to a miscarriage of istic U/nite

P } 170) | ~ i 17 14

| i! | appea ! catiol f the concent f

‘ ‘ | rs lies reflect COnNLTU ! i| hi {

f { Ver i}! errdg) i! (| harmls er) ) 4

‘ ? Zia) ly é luctir narmis

/ i! ry lr nave ident at | ce} ainer)

prejudicial” and therefore not subject

egarded as harml eve n the abs

i pe at pre 1 cf T) ( ]) ’

i : ina cate Or’ structul defect } ne

tuto [ the trial mechanism.” Arizona Ful

ante, 111 S. Ct. 1246, 1265 (1991). as wi

‘ner @) }f mnoact on ting tT) a | CHA t ef

Pa é f he Court’ dlets rminat that a }i [-

not constitute plain error” mply because it yD It

ta ! iit i bstantial prejudice to the defendant

nougn to give rise to a miscarriage of istice. See / ted

lates Vv. Frady, 456 U.S. at 163-164 & n.14: Peretz v. I’ nited

bate lll S. Ct. at 2678 (Sealia. J.. d ent }

r} e errors include denial of the right to ar mpartia

liudicator,. Gray ' Vf pp ik] U.S. 648. G6R (1987)

(plurality opinion); trial by a prosecutor with a financial

interest in the outcome, Young V. United States ex rel. Vuitton

et Fils, S.A., 481 U.S. 787, 809-814 (1987) (plurality opin

ion); denial of the right to conflict-free counsel at trial

Holloway Vv. Arkansas, 435 U.S. 475. 491 (1978); denial of

the right to self-representation, McKaskle v. Wiagai) 165

, 7

U.S. 168, 177 n.8 (1984) ; denial of the right to a public tria

Waller V. Georgia, 467 U.S. 39, 49 & n.9 (1984) ; denial of th

right to have a judge conduct jury selection, Gomez v. United

lates, 490 U.S. 858, 876 (1989) ; and denial of the right not

0 be forced, without sufficient justification, to take

psychotic medication during trial, Rigg v. Nevada, 112

S. Ct. 1810, 1816 (1992)

18

ticular error can never be harmless within the mean-

Ty’ ?

of Rule 52(a) does not, however, mean that sucl

always “plain” within the meaning of

|

doctrines of harmless error and plain error

tect different interests. The harmless error rule

tects rulings in criminal cases from attack on

nsequential grounds. The plain error rule has

he dual function of protecting the process of adjudi-

n at trial by requiring the defendant to make

s wishes known with respect to a particular ruling,

ind at the same time protecting against the risk that

a defendant will be unjustly convicted because of a

default on the part of his attorney.

Because of the different policies served by the two

ctrines, an error that is non-harmless is not neces-

‘“nlain.” An error will be found harmless

lv if a reviewing court has great confidence that

the error did not materially affect the verdict. In

rder to rise to the level of plain error, however, an

error must have a more demonstrable effect on the

‘lict, since the concern for the fairness of the pro-

‘eedines must be balanced against the strong policy

interests requiring a claim of error to be brought to

the attention of the district court in time for the error

o be avoided or corrected.’

)

'The courts of appeals that have addressed the relation-

» between the harmless error and plain error standards

have noted that a finding of plain error ordinarily requires

a greater showing of prejudice than is necessary to avoid a

finding of harmless error. See United States v. McKinney,

954 F.2d 471, 475-476 (7th Cir. 1992) (“Plain error * * *

an error so grievous that it caused an actual miscarriage

which implies that the defendant probably would

United States

istice,

not have been convicted absent the error.’”’) ;

Thame. 846 F.2d 200, 207 (3d Cir.), cert. denied, 488 U.S.

19

This Court’s cases illustrate the different status of

claims of “inherent prejudice” under the harmless

error and plain error rules. For example, the Court

has held that a denial of the right to a public trial

is not subject to harmless error analysis: “the defend-

ant should not be required to prove specific prejudice

in order to ‘obtain relief for a violation of the public-

trial guarantee.” Waller vy. Georgia, 467 U.S. 39, 49

(1984). Yet the Court has held that a defendant who

does not object to closure of the proceedings may for-

feit his right to a public trial, at least where the

showing of specific prejudice is not “sufficiently im-

pressive to render irrelevant failure to make a timely

objection.” Levine v. United States, 362 U.S. 610.

619 (1960). The Court in Levine noted, in words

that are fully applicable to this case, 362 U.S. at 619-

620: “Due regard generally for the public nature of

the judicial process does not require disregard of

the solid demands of the fair administration of justice

in favor of a party who, at the appropriate time and

acting under advice of counsel, saw no disregard of

a right, but raises an abstract claim only as an after-

thought on appeal.”

Similarly, the Court has held that a claim of racial

discrimination in the selection of the grand jury

can never be harmless error. See Vasquez v. Hillery,

174 U.S. 254, 263-264 (1986). Nonetheless, such a

claim is forfeited if it is not timely raised in the dis-

trict court. See Davis v. United States, 411 U.S. 233

(1973). Although the Davis case itself dealt with a

928 (1988);-United States v. Silverstein, 732 F.2d 1338,

1349 (7th Cir. 1984), cert. denied, 469 U.S. 1111 (1985).

That is particularly so with respect to constitutional errors,

which cannot be excused under the harmless error doctrine

unless the errors are harmless beyond a reasonable doubt.

20

eollateral attack on a conviction under 28 U.S.C. 2255,

the principle for which it stands is equally applicable

to the plain error doctrine. As the Court explained,

“Tt}he presumption of prejudice which supports the

existence of the right is not inconsistent with a hold-

ine that actual prejudice must be shown in order to

obtain relief from a statutorily provided waiver for

failure to assert it in a timely manner.” 411 U.S. at

24d.

The same principle applies to other rights, such

as the right of self-representation. The denial of that

right, the Court has held, is per se reversible error;

that is. an erroneous denial of the right is not subject

to harmless error analysis. McKaskle v. Wiggins,

165 U.S. 168, 177 n.8 (1984). But there is no re-

quirement that a court invite a defendant to repre-

sent himself or even advise him that he has that right,

and if the defendant does not timely and unequivo-

eallv invoke the right to represent himself, he forfeits

it. See United States v. Martinez, 883 F.2d 750, 757-

758 (9th Cir. 1989) (citing cases); United States

v. Gillis. 773 F.2d 549, 559 (4th Cir. 1985); United

States v. Weisz, 718 F.2d 413, 425 (D.C. Cir. 1983),

cert. denied, 465 U.S. 1027 (1984); Brown v. Wain-

wright. 665 F.2d 607, 610-611 (5th Cir. 1982) (en

bane): see generally McKaskle v. Wiggins, 465 U.S.

at 183.

9 Even if “inherent prejudice” were enough to

give rise to plain error, it would not help respondents,

hecause the error at issue in this case was not, In any

event, “inherently prejudicial.” For several reasons,

permitting alternate jurors to be present in the jury

room during deliberations is simply not the kind of

irregularity that should justify reversal in the absence

of a substantial showing of specific prejudice to the

defendant’s right to a fair trial.

21

First, even assuming that the alternate jurors vio-

/ el their instructions not to participate in the delib-

rations, there is as much reason to assume the alter-

uate jurors favored acquittal as there is to think they

favored conviction. An error that is at least as likely

to benefit as to harm a defendant cannot fairly be

regarded as inherently prejudicial. Indeed. in the

present context the error was more likely to benefit

respondents; as this Court has indicated, it is widely

supposed that a larger jury favors the defense because

the difficulty of achieving a unanimous verdict of

guilt beyond a reasonable doubt increases as the num-

ber of jurors does. See Ballew v. Georgia, 435 U.S.

223, 234 (1978) (plurality opinion) (“Statistical

studies suggest that the risk of convicting an ome

person * * * rises as the size of the jury diminishes.”

Second, the presence of alternate jurors during de.

liberations did not violate any constitutional right of

responcents. In concluding that the violation of Rule

<4(c) amounted to plain error, the court of appeals

relied on the Fourth Circuit’s decision in United

States v. Virginia Erection Corp., 335 F.2d 868

(1964), which itself rested on the view that the

‘trial by jury’ contemplated by Article III, Section

2, [Cl. 3] and the Sixth Amendment is a trial by a

jury of twelve persons, neither more nor less.” 335

f.2d at 870. See also id. at 871 (“Twelve is the magic

number.”). That constitutional premise of the Fourth

Circuit’s decision in Virginia Erection Corp., however.

was disapproved in Williams v. Florida, 399 U.S. 78

(1970). There, the Court rejected the contention

that the constitutional guarantee of a trial by jury

requires a trial by exactly 12 persons, holding that

“the fact that the jury at common law was com-

posed of precisely 12 is a historical accident, unneces-

99

_

sarv to effect the purposes of the jury system and

wholly without significance ‘except to mystics.’ ” Id.

at 102 (quoting Duncan vy. Louisiana, 391 U.S. 140,

182 (1968) (Harlan, J., dissenting)). This Court

has never suggested that the Constitution imposes

a limit on the maximum size of juries, and respond-

ents point to no reason that trial by more than 12

jurors implicates their constitutional rights.°

Third, the court of appeals erred in concluding

that the presence of alternate jurors during delibera-

tions is inherently prejudicial because it “infringes

upon the jury’s privacy and the secrecy of the jury

process.” Pet. App. 28a (citing Virginia Erection

Corp., 335 F.2d at 872). To be sure, if the sanctity

of the jury room and the privacy of deliberations is

not protected, there is a danger that “[f]reedom of

debate might be stifled and independence of thought

[might be] checked.” Clark v. United States, 289

U.S. 1.13 (1933). That danger, however, is not pre-

sented by the presence—or even the active participa-

tion—of alternate jurors during deliberations.

It is true, of course, that the alternates were not

technically members of the jury, because “|o]nce

[deliberations] commenced, ‘the jury’ consisted only

’The Court recognized in Williams that the number of

jurors “should probably be large enough to promote group

deliberation, free from outside attempts at intimidation, and

to provide a fair possibility for obtaining a representative

cross-section of the community.” 399 U.S. at 100. In the

wake of Williams, the Court focused on the minimum number

of jurors that could constitutionally be employed. See John-

son V. Louisiana, 406 U.S. 356 (1972) (9-3 verdict consti-

tutional) ; Apodaca v. Oregon, 406 U.S. 404 (1972) (10-2

verdict constitutional); Burch v. Louisiana, 441 U.S. 130

(1979) (5-1 verdict unconstitutional) ; Ballew v. Georgia, 435

U.S. 228 (1978) (5-0 verdict unconstitutional).

23

of the prescribed number of jurors,” United States v.

Beasley, 464 F.2d 468, 469 (10th Cir. 1972). It defies

reality, however, to suggest that the presence of the

alternate jurors in the jury room during deliberations

fundamentally altered the jury’s deliberative process.

In virtually every respect, alternate jurors are “in-

distinguishable from regular jurors.” Johnson v.

Duckworth, 650 F.2d 122, 125 (7th Cir.), cert. de-

nied, 454 U.S. 867 (1981). They are subject to the

Same selection process as regular jurors, have the

same qualifications, take the same oath, and “have

the same functions, powers, facilities and privileges.”

Fed. R. Crim. P. 24(c). They hear the same evi-

dence, the same arguments of counsel, and thé same

instructions from the court. Like regular jurors, al-

ternates have been subjected to voir dire and deter-

mined to be impartial. Accordingly, “the alternate

who accompanies the regular jurors into deliberations

has no more and no less information about the case

than any other juror, and is no more biased or

unduly influenced than any other juror.” Johnson v.

Duckworth, 650 F.2d at 125.”

The distinction between regular jurors and alter-

nates was reduced even further in this case by the

procedure used to select the alternates. The alter-

nates were not chosen until the end of the trial, at

which time two of the 14 jurors were designated as

alternates. Until that time, the jurors did not know

*The only conceivable difference between alternates and

regular jurors is that alternates are “not committed to the

decision that [is] ultimately reached, [and are] not faced

with the awful responsibility to decide.” State v. Cuzick, 530

P.2d 288, 289-290 (Wash. 1975). It is hard to imagine, how-

ever, that because of that difference the presence of two

alternates in the jury room could affect the course and sub-

stance of the jury’s deliberations.

24

which of them would be the 12 regular jurors and

which would be the two alternates. It is therefore

quite unrealistic to treat the alternates, who had

in effect served as regular jurors during the three

months of the trial, as “strangers” to the jury room

whose presence constituted a threat to the sanctity of

the jury’s deliberations.

The court of appeals thought that the mere presence

of alternate jurors during deliberations was inher-

ently prejudicial, in part because their “attitude[s ],

conveyed by facial expressions, gestures or the like,

may have had some effect upon the decision of one or

more jurors.” Pet. App. 28a. The court of appeals

erred in thinking that this potential imposition on the

jury process was a basis for finding plain error.

The court of appeals offered no reason to refute

the common sense proposition that the “body lan-

euage” of the alternates could not have had any effect

on the deliberations. Any juror who favors acquittal

and is resolute enough to resist the facial expressions

and gestures of the regular jurors who disagree with

him—not to mention their attempts at oral persua-

would not be swayed in favor of conviction by

the expressions or gestures of an alternate. Moreover,

the district court specifically instructed the entire jury

that the alternates were not to participate in deliber-

ations, making clear that anything said or done by the

alternates should not be considered in reaching a ver-

dict. Just as the alternates are presumed to have

followed the instruction not to participate, the regular

jurors should be presumed not to have allowed them-

selves to be influenced by any actions of the alternates.

It is fanciful to assume that jurors—who the criminal

justice system routinely expects to disregard such

potentially powerful influences as improper prosecu-

sion

or

torial comment, improperly admitted evidence, infor-

mation about other crimes, or the defendant’s crim-

inal record—cannot disregard the “body language”

of alternate jurors."

The relative insignificance of the Rule 24(c) error

at trial is perhaps most pointedly underscored by the

fact that defense counsel consented to allowing the

alternates to sit in on the deliberations. It is highly

unlikely that defense counsel, after observing the

jurors for three months and being in the best position

to assess any possible effect that retaining the alter-

nates might have on the verdict, would give their

considered consent to a procedure that violated their

clients’ substantial rights to the point of producing

a miscarriage of justice. To the contrary, counsel’s

consent indicates that the defense either favored the

procedure employed at trial—perhaps concluding that

at least one of the alternates might favor acquittal—

or did not regard the matter to be of sufficient

moment to warrant an objection. There is no reason

to permit respondents to question that choice now.

Not only did the court of appeals overstate the

significance of the error in this case, but it failed

altogether to take into account the costs exacted by

the reversal of a conviction based on a finding of

plain error. One of the considerations underlying

the courts’ reluctance to find plain error absent a

This Court has applied “in many varying contexts” the

“almost invariable presumption of the law that jurors follow

their instructions.” Richardson v. Marsh, 481 U.S. 200. 206

(1987) (citing Francis v. Franklin, 471 U.S. 307, 325 n.9

(1985)). The court of appeals did not dispute that this prin-

ciple is applicable here, but rather thought that the danger of

silent influence was so inherently prejudicial to respondents

that it was irrelevant whether the jury disregarded the in-

struction that the alternates were not to participate in

deliberations.

eonsent to the procedure through counsel was not

make certain fundamental! decisions regarding tl

°_o6

erave risk of injustice is “the societal costs of re-

yer iY) y [th ) , “aha thy ) 1) } y’ 17 :y) Qo ) )* tyial ,

y ISili- Lit convicvlon alitt requiring a i Licii.

j gil T . a+ ~») _

[’nited States v. Young, 470 U.S. at 22 n.1 (Brenna!

costs of a reversal in this case are nuge: a rever

vould effectively nullify the investment of three

ry nwuns Ol trial Lime DY ear court, COU 7 nersonnel

+1 —seeee enol P , ] ] +1 , l mal

ne jury, witnesses, and counsel. It also uid make

. . . ‘ a¢ | } 1? ] . ] . .

an accurate verdict much less likely, now that more

nan tive years Nave PDasset ince tne lal ana

han eight years since the underlying events loo

> ; Si ‘ P . ‘ . _ ]

place. Besides the burden and expense of a retri:

tne pr yb] ms OI ta ling memories, !OSt ' tn a

changing government personnel would make a re-

trial both difficult to conduct and less likely to res

or that reaso?

cA

—_—:

in a just disposition of the charges.

|

as well, the court of appeals should not have reversed

respondents’ convictions without being confident that

the Rule 24(c) violation resulted in particular and

}7 a Ai‘

71 +2 | "2711010 . y ‘ ray

substantial prejudice to respondents’ right to a fal

1). Respondents’ Personal Consent Was Not Necessary

lor A Valid Forfeiture Of Their Rule 24(c) Claim

In addition to ruling that it was inherently preju-

dicial to nermit the alternates to retire with jury

he court of appeals concluded that the defendants’

:

sufficient to hold respondents to the consequences of

|

Tr

ieir choice. In order to forfeit their Rule 24(c)

‘laim, the court of appeals held, respondents would

have had to give their personal consent to the pro-

‘

cedure. Pet. App. 26a. There is no sound basis for

that holding.

This Court has recognized that. as a constitutional!

matter, “the accused has the ultimate authority t

hi

case, such as whether to be represented by counsel,

whether to plead guilty, and whether to waive a jury.

Jones v. Barnes. 463 U.S. 745, 751 (1983): Wain-

wright v. Sykes, 433 U.S. 72. 93 n.1 (1977) « Burger,

C.J., concurring). Nonetheless, the constitutional re-

quirement of personal, informed consent by the de-

fendant as a precondition to the effective waiver of

trial rights is very much the exception rather than

the rule, and the exceptions all involve decisions that

have sweeping implications for the litigation.

With respect to most trial rights, the defendant’s

attorney is authorized to make tactical decisions that

can result in the valid forfeiture of those rights

without the need to obtain a record recital of the

defendant’s personal and informed consent: As this

Court has explained:

Although there are basic rights that the attorney

cannot waive without the fully informed and pub-

licly acknowledged consent of the client, the law-

ver has—and must have—full authority to man-

ame the conduct of the trial. The adversary proc-

ess could not function effectively if every tactical

decision required client approval.

Taylor vy. Illinois, 484 U.S. 400, 417-418 (1988)

(footnote omitted). “Under our adversary system,

once a defendant has the assistance of counsel the

vast array of trial decisions, strategic and tactical,

which must be made before and during trial rests

with the accused and his attorney.” Estelle v. Wil-

lams, 425 U.S. 501, 512 (1976): see also Reed vy.

Koss, 468 U.S. 1, 13 (1984) (“absent exceptional

circumstances, a defendant is bound by the tactical

decisions of competent counsel”); Faretta v. Califor-

nia, 422 U.S. 806, 820 (1975) (“when a defendant

chooses to have a lawyer manage and present his

28

ease. law and tradition may allocate to the counsel

the power to make binding decisions of trial strategy

in many areas”). A contrary rule would make trials

impossibly cumbersome and lace them with the possi-

bility of reversible error at every turn.

‘he decision to permit alternate jurors to retire

}

’

i

the sort of “fundamental” trial decision that the de-

fendant must make personally. Decisions such as

whether to be represented by counsel, to plead guilty,

or to waive a jury trial profoundly affect the struc-

ture of the proceedings; in that respect they are

fundamentally different from the decision whether to

consent to the presence of alternate jurors in the jury

room during deliberations.

There is nothing to distinguish the decision to

permit alternate jurors to observe the jury’s deliber-

ations from myriad trial decisions that defense coun-

sel make every day without any on-the-record ex-

pression of personal consent by the defendant. For

example, counsel may decide, as a tactical matter,

not to cross-examine a key witness against the de-

fendant. or even to refrain from cross-examining any

of the government’s witnesses. There is no require-

ment that the defendant be consulted about that de-

cision, let alone that he personally consent to it on

the record. See Taylor v. United States, 484 U.S. at

118. Similarly, counsel may bind the defendant by

deciding not to seek suppression of physical evidence

that may be the government’s only evidence; there is

no requirement that the defendant give an informed,

on-the-record consent to that decision. Those choices,

like scores of others, may be made—and possible

claims on appeal therefore forfeited—without any

involvement of the defendant, even though they are

likely to have far more impact on the proceedings

e

29

than the decision to let alternate jurors silently ob-

serve jury deliberations. Indeed, unless a defendant

can show plain error or constitutionally ineffective

assistance of counsel, a defendant will be held to his

lawyer’s failure to object even if that failure was in-

advertent. See generally Strickland vy. Washington,

466 U.S. 668 (1984).

The court of appeals justified its conclusion by

pointing to the interests served by requiring the per-

sonal consent of the defendant. Requiring a -per-

sonal waiver, the court said, “alerts the defendant to

the fact that a waiver of Rule 24(c)’s protections

may affect the outcome of his case.” Pet. App. 26a.

We doubt the validity of that proposition. Even if it

were correct, however, the same is true of countless

other decisions at trial that are undoubtedly subject

to waiver by counsel, and the court of appeals offered

nothing to distinguish Rule 24(c) from those run of

the mine decisions. The court of appeals did not sug-

gest that a right of constitutional dimension was at

stake (presumably because none was), and it did not

attempt to reconcile its holding with this Court’s

teaching that only the most fundamental decisions

require a personal waiver by the defendant. The

court of appeals therefore erred in holding that to

allow the alternates to retire with the jury was per se

reversible error that could be waived only by the

informed, personal consent of each defendant.

30

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

WILLIAM K. KELLEY

Assistant to the Solicitor General

JOEL GERSHOWITZ

Attorney

JULY 1992

WY ©. &. GOVERNMENT PRINTING OFrice; 1992 312324 454686