# Petitioners Brief — United States v. Olano > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0244%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1993 - **Citation:** 507 U.S. 725 ## Text 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) i ~ *aaT' 171 U.S. 307 (1985) r ton | ~ me >. o) 1 & | ~~ { 1x i] > TQ T ~ 14% ims | »* . aes , ~ : » | » tiv { JiS) Gan Ff ret »*) Tt} ’ 154 U.S. 867 (1981) Liye | ~ a7 { ] 70 j ; Pi), A | ~ 158 (1OR® 1q2 7 . TAS 109 ‘Co | ~ { ' Uht)) . 14 | ~ , nt 19Ox4 if > | ~ life | Ox 4 i f V. A fi O+} ' ’ TORS) i. 77 ¢ -_— 7 1001 ) 1; 1ORA ) lf ix] | 7 2 rt} (1UR, ' 11? NSN Cf eit) (190%) 49) > r 1 Fe 1. > | ’ Pid oe (Wa ’ ay | } / i166 US. 66R (1984 iR4 | ~ 100) (19RR) ‘ iwi A 17 ‘ ’ 4 : s) / ' if , f ' y ) i? Ss. Ct. 130 (1990) B (, 464 F.2d 468 (10th Cir i / 5 Ty’ Ss 159 (19OR? ) / 17 | ~ O29 (1ORS5) : 7 —_ ~ f ’ } Id »49 it} { r v. Ma 694 F.2d 1270 (D. ' V f RR2 Od THO (Sth Cir . » _ ry 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) > ><> "> ‘ ’ ; - . ,- ; > ry ‘ les ‘ _- eo ‘ > Ae) 7 141)) {QR | | Ai OYR j {1s > US i 4 x4 ey . 114 | ’ ’ e { ( Lit il f a (>) ~ Verdi ‘ ’ , ; ’ ‘ ‘ necome r are ] l ( I Ne or aisqua eC ‘ ’ 4 ’ ertfor thei) ities \) ernate rol sr) } ’ ’ ’ " } 1] ; \ i1()¢?sS ) r¢ act a ; i } ' narved aiter tne ]} r res eq) (ie) f ; i »¢ VET CLIN ’ » , » | : rederal tule of Urin nal Proce ire Ji rovides yy)? ’ 7 ] +} ‘ Ce] { ~ id) ruilt ~“ ()? (>? ‘ ~ { at r 1} ’ i] ‘ CeT)T On has neretol r"¢ heen necessal \ ~ 4} — ; . yet ; he tin } Ty " ) i Ulf lla a Pa a f ( il rae? rt the court Ss made Ol ht wy Ww Ti ring cs ;y’t Tne 9 ’ ‘ \\ ; ’ ’ i) ears rne ef te ig 1a ‘ { rnat 1) "7 | ey 4 " ti t he 9 ; ray, QO] eal: rar 1)°7 9) t he { eat ~ 1 lerel l put | 1 party lla I O] , rtvul t\ I } ect to a ruling or orde? ne avsence oO! ‘ ] + * ‘ ; " j +} ‘ Ov Te on aoes no nereatter pr Lice a Da | ] ] »..] , ; . | ) loons ‘) : | Federal Rule of Criminal Procedure 52 provid I (a) Harmless Error. Any error, defect, irre larity or variance which does not affec 1D ’ . . , ’ . - . , stantial rignts shall he GIsret arc (hb) Plain Error. Plain errors or defects ai! , " ” ' , +e ] . ¥ ’ 7 } ’ | o 1+] rect ny _ ibs an al ! . 5 ry «a \ nt : { ai | ‘ | t ne wer not | . } i ; ti ting tt, " th, ( ur ° . ? 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 ; Or 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- ; ‘ ' : . } . e. - ‘és ] . 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} , 1}: ~ — : renect er] ] MISANDLICATION OT the plain erro! loctrine. and it confuses harmless error and p ) ? (>) ) sic } ven { the Olt | npeails WW ‘ ‘és . *¥ that the error in this case was “inherently , , ’ , , ls } + +) 2 LiCl. i Wou i?] iIsLiatf oni i| t , y*) ) ’ ’ ‘ yy") ? ? ’ : i TH > ai > > : ] *%* > s -P : 7% ] . 4" 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 ‘ . ; ‘ At ct : > ‘ ( i ’ ‘ . ’ it a : nt H ‘ i ; ‘ ih v¥t ava > > LA ed > t if " . ’ ry e dist) : *) ’ : Se a yey ' ‘ ’ . Lb. The Contemporaneous Objection Rule Bars Respond ents From Obtaining Review Of Their Rule 2i(c) . laa ; ‘ ’ : ’ ‘ \ | iS >? resaronrty ’ ' rr : ed \ all error Dasead OI e com ’ . ’ , , ai y ad sl . if i\V©ela Vil \ . ; . : ' ] e wned I i Drouceaura prin Dit . ‘ ‘ +) . , ° nm? é Lou nal nat a rig ' ’ . ry : : . ry’ ‘ ru ans vyv ii. ai "Li i' at : J Uetu I Liat ' ; J >s) ‘ 1A ead wotates 21 U.S t14 $44 ‘ ] ) 5 ; , J fof Li} ~ { > ri } ‘ ; ; ‘ ‘ j Ss i i . ‘ ’ ; P ’ byt, | Hh “| / Pd State \ } iii Loh | a“ ) ’ ’ . y J 7 ‘4 J ’ ' ' ™ ‘ Sates \ ‘ j-} / | 7 | ? , : r*>¢ ( ] , “ | yt} . ; (1940) ‘ iePra rT» ; ’ ; | ; , , Ul ‘ Tr! il Proce lire oil emoodies Wal pril i . + ‘ + + +>) “ > . , vy oN , WT) . at 1’ ‘ 7 | ‘ + . yt iepciree tig rt t; ; | | \ ‘ > > > > ’ > . «¢ , ’ : rev e } cy | ne COLT > 4 ‘ y ture " > wi er A Deak | Ter? a oerenda y Q ang } | War ore y tal F T Def ; j P» en P bjeta ; Af) " - ~~ - ’ . : | ' vy » pi) ) ine term Walvel : ’ ’ nrext ePcause | sOomer+rTimes is i ec | mm? ’ ; ; + ’ ° ’ mn? nT ’ ‘ a h ’ ~ PeLLNQuUuISHLITiC a , ; " ‘ - ‘ “ys 2. ~ ; 4in | ~ 15s 64 1 * rT) -* . » , nr F ry t) Lae’ W ’ ' 4 ’ ’ a ’ , ‘ . ry >>) ’ ind inadvertenti)s oraneous objection rule promotes ° ryy Nn) ne yr Ting la . of err @ i \ \ { ‘ i i > >?¢ > . | . s attention and providing the court yy Ww esoive the matter as the letend 4 (On ’ ai e*¢ Vi Li? ‘ di / ' Sukes toe I s {? ré SToTrer \ (7,00) } vil I ~ 2? Tlnate Ntate 169 | ~ _ 1] | ’ ’ , WW .\ c R Lal avt W Je} : }{ i .' ‘> +) é ) 26.0, at 251 (1954). That ‘ ‘ . -} \ lé n > ast n view | e | ‘ = : y " * + ‘ ‘ i. > " > + , i At i : hit pt I ‘ i Lit ai y i —_— i ‘ T> ‘ P ‘ ed ret ADD ia | ) If res Ty) . > : > : > } ) I e her defendants, ha pjected Droposa irl W ild 3 tL nay WV ; } . | I ave vpecome al SS U¢ )] ippea , OOTY) T) rati¢ is hie T nm "Li i¢ s ij! : - , to deciare the action the Val Line l , : . lew 4 | ' nMIIP S n reaso and iater claims tna ne ou 7 + 4 " a . © Cou! Was reversipdie erro! Set a on UWS tigio) That factor : : case. The district court t all t LninkK overnignt abdout whether the . a“ 7 . : ; ’ | uding the alternates in deliberations the court determined on the recor 7, ¥F ’ ints did not object to tne aiternates r +} « l4 . > . : > ‘ ; ‘ Y as © aivernaces were Instructed ! : , le deliberations T he cour? ther ction and permitted the alternates t jury. No complaints or reservations : : ; ; . ; : : 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 ; 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0244%3A07. Public record. Not legal advice.