Petitioners Brief — United States v. Martinez-Salazar

No. 98-1255

Jn the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

ABEL MARTINEZ-SALAZAR

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

DAVID C. FREDERICK

Assistant to the Solicitor

General

RICHARD A. FRIEDMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTION PRESENTED

Whether a defendant is entitled to automatic reversal

of his conviction when he uses a peremptory challenge

to remove a potential juror whom the district court

erroneously failed to remove for cause, and he ulti-

mately exhausts his remaining peremptory challenges.

(I)

~~ =o a ee

-

TABLE OF CONTENTS

Opinion below

Jurisdiction

Statute and rules involved

Statement

Summary of argument

Argument: |

I. A defendant's rule-based or due process rights

are not violated when he exercises a peremp-

tory challenge to remove a juror who should

have been excused for cause

A. The right to exercise peremptory chal-

lenges under Federal Rule of Criminal

Procedure 24 is subject to reasonable

procedural limitations

B. Requiring a defendant to use a per-

emptory challenge to strike a juror who

should have been removed for cause is a

reasonable procedural rule

C. Any impairment in this case of the right

II. Impairments of a defendant's exercise of

peremptory challenges are subject to harmless

error analysis

A. Animpairment of peremptory challenges

is harmless if an impartial jury sits ................

B. A rule of automatic reversal is justified

by neither precedent nor principle .................

(III)

— pow = =

14

15

19

lV

Table of Contents—Continued: Page

C. The record does not demonstrate pre-

judice from any impairment of re-

spondent's peremptory challenge

rights 37

Conclusion 40

Appendix A la

Appendix B da

TABLE OF AUTHORITIES

Cases:

Arizona v. Fulminante, 499 U.S. 279 (1991) ............ 29, 34, 35

Armstrong v. Manzo, 380 U.S. 545 (1965) 24

Bank of Nova Scotia v. United States, 487 US.

250 (1988) 27

Batson v. Kentucky, 476 U.S. 79 (1986) 7, 26, 33

Bennis v. Michigan, 516 U.S. 442 (1996) 33

Chapman v. California, 386 US. 18 (1967) 28, 29

Edmonson v. Leesville Concrete Co., 500 U.S. 614

(1991) . 17

Engle v. Isaac, 456 U.S. 107 (1982) 12, 25, 36

Estelle v. McGuire, 502 U.S. 62 (1991) 22, 24, 25

Frank v. United States, 42 F 2d 623 (9th Cir.

1930) 39

Frazier v. United States, 335 U.S. 497 (1948) ................ 14, 16

Georgia v. McCollum, 505 U.S. 42 (1992) ...... 11, 14, 15, 21, 26

Gideon v. Wainwright, 372 U.S. 335 (1963) 29

Gomez v. United States, 490 U.S. 858 (1989) 29

Gray v. Mississippi, 481 U.S. 648 (1987) 14

Gulf, C 'orado & Santa Fe Ry. v. Shane, 157 US.

348 (1895) 33, 34

Harrison v. United States, 163 U.S. 140 (1896) ............... 33

Hernandez vy. New York, 500 U.S. 352 (1991) .......cccc0e 39

Hicks v. Oklahoma, 447 U.S. 343 (1980) 23, 24

Holland vy. Illinois, 493 US. 474 (1990) 16

Cases—Continued: Page

Irvin v. Dowd, 366 US. 717 (1961) 22

J.E.B. y. Alabama ex rel. T.B., 511 U.S. 127

(1994) 14, 16, 26

Johnson v. United States, 520 U.S. 461 (1997) ................. 30

Kirk v. Raymark Indus., Inc., 61 F.3d 147 (3d

Cir. 1995), cert. denied, 516 U.S. 1145 (1996) ................ a 20

Kotteakos v. United States, 328 U.S. 750 (1946) .......... 28, 34

Lewis v. Jeffers, 497 US. 764 (1990) 24

Lewis v. United States, 146 U.S. 370 (1892) ...... 16, 17, 33, 34, 39

Lisenba v. California, 314 U.S. 219 (1941) 22

Logan v. Zimmerman Brush Co., 455 US. 422

(1982) 24

McDonough Power Equip., Inc. v. Greenwood,

464 U.S. 548 (1984) 31

McElroy v. United States, 164 U.S. 76 (1896) ................ 34

Morgan v. Illinois, 504 U.S. 719 (1992) 29

Morris v. Slappy, 461 U.S. 1 (1983) 36

Mu'min v. Virginia, 500 US. 415 (1991) 26

Neder v. United States, 119 S. Ct. 1827 (1999) .... 12, 27, 28, 29,

30, 35

Parker v. Gladden, 385 U.S. 363 (1966) 29

People v. Schafer, 119 P. 920 (Cal. 1911) 39

Pointer v. United States, 151 U.S. 396 (1894)... 16, 18, 21, 26

Pulley v. Harris, 465 U.S. 37 (1984) 24, 25

Rosales-Lopez v. United States, 451 U.S. 182 (1981) ..... 35

Rose v. Clark, 4738 U.S. 570 (1986) 13, 27, 28, 29

Rose v. Hodges, 423 US. 19 (1975) 24, 25

Ross v. Oklahoma, 487 U.S. 81 (1988) passim, 5a

St. Clair v. United States, 154 U.S. 134 (1894) «0... 18, 26

Stilson v. United States, 250 U.S. 583 (1919) ............... 14, 18

Stroud v. United States, 251 U.S. 15 (1919), reh’g

denied, 251 U.S. 380 (1920) 19

Sullivan v. Louisiana, 508 U.S. 275 (1993) 29

Swain v. Alabama, 380 U.S. 202 (1965)... 16,32, 38,35

Taylor v. Lowisiana, 419 U.S. 522 (1975) 31

Trotter v. State, 576 So.2d 691 (Fla. 1990) 39, 4a

Cases—Continued:

VI

Z

Tumey v. Ohio, 273 U.S. 510 (1927)

Turro v. State, 950 S.W.2d 390 (Tex. App. 1997,

pet. ref'd)

United States v. Allsup, 566 F.2d 68 (9th Cir.

1977)

United States v. Annigoni, 96 F.3d 1132 (9th Cir.

1996)

United States v. Brooks, 161 F.3d 1240 (10th

Cir. 1998)

United States vy. Broussard, 987 F.2d 215 (5th

Cir. 1993)

United States v. Hasting, 461 U.S. 499 (1983) .........0000 28,

United States v. Horsman, 114 F.3d 822 (8th

Cir. 1997), cert. denied, 522 U.S. 1053 (1998) 2.0.0... 32

United States v. Lane, 474 U.S. 438 (1986)... 12, 22, 25, 27, 34

United States v. Marchant, 25 U.S. (12 Wheat.)

®

Se £6 £ 8S &B B

480 (1827) 18, 31, 38-39

United States v. Mechanik, 475 U.S. 66 (1986) ......... 27,36

United States v. Nell, 526 F.2d 1223 (5th Cir.

1976) 20

United States v. Olano, 507 US. 725 (1993) ............. 27, 29, 30

United States v. Ricks, 776 F 2d 455 (4th Cir.

1985), cert. denied, 479 U.S. 1009 (1986) 32

United States v. Torres, 960 F 2d 226 (ist Cir.

1992) 32

United States Nat'l Bank of Or. v. Independent

Ins. Agents of Am., Inc., 508 U.S. 439 (1998) 0... a 33

Vasquez v. Hillery, 474 U.S. 254 (1986) 29

Waller v. Georgia, 467 U.S. 39 (1984) 29

Constitution, statutes and rules:

U.S. Const.:

Amend. V (Due Process Clause) ....... 10, 11, 12, 22, 23, 25, 26

Amend. VI 9, 16, 23, 29

Amend. XIV (Equal Protection Clause) 33

Act of Apr. 30, 1790, ch. 9, $30, 1 Stat. 119 16

Statutes and rules—Continued:

vil

Act of June 8, 1872, ch. 333, 17 Stat. 282

18 U.S.C. 924(¢\(1)

21 U.S.C. 841(a\(1)

21 U.S.C. 846

28 US.C. 2111

Fed. R. Civ. P. 61

Fed. R. Crim. P.:

Rule 8

Rule 24

Rule 24(b)

Rule 24(c)

Rule 52

Rule 52(a)

Rule 52(b)

Miscellaneous:

4 William Blackstone, Commentaries

In the Supreme Court of the United States

No. 98-1255

UNITED STATES OF AMERICA, PETITIONER

Vv.

ABEL MARTINEZ-SALAZAR

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-19a)

is reported at 146 F.3d 653.

JURISDICTION

The judgment of the court of appeals was entered on

May 28, 1998. A petition for rehearing was denied on

October 7, 1998 (Pet. App. 20a-2la). On January 4,

1999, Justice O’Connor extended the time within which

to file a petition for a writ of certiorari to and including

February 4, 1999. The petition was filed on February 4,

1999, and was granted on June 21, 1999. The jurisdic-

tion of this Court rests on 28 U.S.C. 1254(1).

(1)

STATUTE AND RULES INVOLVED

Section 2111 of Title 28 of the United States Code

and Rules 24 and 52 of the Federal Rules of Criminal

Procedure are reproduced in an appendix to this brief.

STATEMENT

After a jury trial in the United States District Court

for the District of Arizona, respondent Abel Martinez-

Salazar was found guilty of conspiracy to possess heroin

with intent to distribute it (21 U.S.C. 846), possession of

heroin with intent to distribute it (21 U.S.C. 841(a)(1)),

and using or carrying a firearm during and in relation

to a drug trafficking offense (18 U.S.C. 924(c)(1)). J.A.

50-52; Pet. App. 2a. He was sentenced to 123 months’

imprisonment. J.A. 51. Respondent appealed, and the

court of appeals found an impairment of his right of

peremptory challenges that, it held, “require[d] auto-

matic reversal.” Pet. App. 3a.

1. This case involves the jury selection for the joint

trial of respondent and his co-defendant.’ Jury selection

took place in one day. J.A. 56. First, the jury venire of

45 potential jurors was put in random order. J.A. 66-68.

The trial judge asked the venire whether any potential

jurors had scheduling conflicts that might interfere

with a trial that would begin on Thursday of that week

and was expected to end on Monday of the following

week. J.A. 68-70. Three jurors mentioned possible con-

flicts: No. 4, Neal Sundeen, a lawyer, advised the court

that he had a trial beginning the next Monday (J.A. 70-

| The procedures followed by the district court may be dis-

cerned from the transcript of the jury selection, which is contained

in its entirety in the Joint Appendix at pages 56-189, and the

master jury list kept by the clerk and filed in the district court

record, which is contained in the Joint Appendix at pages 190-192.

3

71); No. 14, Edward Sink, an employee of Allied Signal

Aerospace, told the court that he had just returned

from a two-week vacation and a four-day business trip

and was having a hard time keeping up with his work-

load (J.A. 71-72); and No. 15, Mary Smith, an English

instructor at a community college, stated that she was

concerned about her ability to grade hundreds of papers

at term’s end (J.A. 72). The court took no immediate

action on those requests.

Next, the court asked each potential juror to recite

information concerning matters listed on a sheet of

paper each juror was given, including his or her name,

community of residence, employment, education, mari-

tal status, employment of spouse, military service, and

prior jury service, including the outcome of any such

cases. J.A. 72-89. The court then gave the venire a de-

scription of the jury selection process and the expected

schedule. J.A. 89-92. Juror questionnaires were

distributed and completed during a recess. J.A. 90-91,

92.

When court reconvened, the judge gave the potential

jurors general instructions about the conduct of a

criminal case, including admonitions that the indictment

is not evidence, that the government bears the burden

of proof beyond a reasonable doubt, that defendants are

presumed innocent, and that the jury was to determine

guilt or innocence based on the evidence and the law as

expiained to it by the court. J.A. 92-97. The court

asked whether any of the potential jurors “believe[d]

that for whatever reason you simply would not want to

serve as a juror here, or don’t think that you could

serve fairly and impartially as a juror in this case

* * * 2” J.A. 97. No juror indicated any such impedi-

ment to serving. /bid.

4

The court introduced the lawyers and the parties,

and asked the potential jurors whether any were

acquainted with anyone involved in the case. J.A. 97-

99. The court then asked the venire a series of ques-

tions, including whether any of the potential jurors

spoke Spanish (translators would be used for defen-

dants); opposed incarceration as a punishment; knew

any of the other potential jurors; had, or had family

members with, present or past government employ-

ment; had legal training; or had any hearing or other

physical problem that might interfere with jury service.

J.A. 99-110. Some jurors responded to some of these

questions, but each assured the court that he or she

would be able to serve fairly and impartially. /bid. The

court again asked the venire whether anyone did not

desire to serve, and no potential juror sought to be

excused. J.A. 110.

The venire then took a recess during which the

lawyers were asked to review the questionnaires. The

court reconvened, without the venire, for the lawyers to

identify which potential jurors they wanted individually

questioned. J.A. 112-113. Seventeen of the 45 potential

jurors were identified for further questioning. J.A. 113-

120. The court questioned each in turn and permitted

the lawyers to ask any supplemental questions they

wished. J.A. 119-159.

One of the potential jurors who was individually

questioned, No. 31, Don Gilbert, stated on his question-

naire that he “would favor the prosecution.” J.A. 131-

132. When asked about that by the judge, Gilbert

clarified: “I think what I’m saying is all things being

equal, I would probably tend to favor the prosecution.”

J.A. 132. In response to a question by respondent’s

trial counsel, “where would you feel more comfortable

erring, in favor of the prosecution or the defendant?,”

5

Gilbert stated: “I think, as I indicated on [the question-

naire], | would probably be more favorable to the

prosecution. I suppose most people are. I mean they’re

predisposed. You assume that people are on trial be-

cause they did something wrong.” J.A. 133. When

reminded by the court of the earlier instruction on the

presumption of innocence, Gilbert responded, “I under-

stand that in theory.” J.A. 134.

At the conclusion of the individualized questioning,

the court consulted with counsel about those potential

jurors who had asked to be excused for personal rea-

sons. There was consensus that Sundeen (No. 4), the

lawyer, could be excused, and he ultimately was. J.A.

70-71, 112, 158-159, 169-170. Likewise, there was no ob-

jection to excusing Sink (No. 14), who had returned

from vacation to face a heavy workload, and he too

ultimately was excused. J.A. 71-72, 159-160, 175. There

also was no objection to excusing Julie Kolomitz (No.

20), a single parent who told the court during individual

questioning that it would be a hardship for her to serve,

and she ultimately was excused. J.A. 156-158, 161, 169-

170. The government was content to excuse Smith (No.

15), the teacher who was concerned about her workload,

but defense counsel objected and the court did not

excuse her. J.A. 72, 160-161. Likewise, the government

was content to excuse Etoy Hanserd (No. 29), who re-

vealed during individual questioning that she recently

had a death in the family, but defense counsel objected

and the court did not excuse her. J.A. 134-138, 161-162.

The court considered two for-cause challenges. De-

fense counsel sought to exclude Gilbert (No. 31) for

cause but the government opposed it. J.A. 162. The

court observed that Gilbert said he could follow instruc-

tions, and the court declined to excuse him for cause.

J.A. 163. Both the government and defense counsel

6

agreed that Darryl Bingham (No. 36) should be excused

for cause because he had stated during individual ques-

tioning that he would not be able to set aside his

personal opinions, and he was excused. J.A. 121-125,

163-164, 170-171.

After further discussion with counsel about addi-

tional instructions, the court reconvened with the whole

venire present. J.A. 169-170. The potential jurors were

instructed about the possible testimony of a govern-

ment informant and asked whether any potential juror

believed that the government should not use infor-

mants. J.A. 171-172. The court also told the venire that

one of the charges involved firearms. The potential

jurors were asked whether any owned firearms, be-

longed to any organization that advocated restrictions

on the ownership of firearms, or harbored any opinion

about guns that would affect their impartiality. J.A.

171-173.

The court then had counsel make their peremptory

strikes. Pursuant to Federal Rule of Criminal Pro-

cedure 24(b) and (c), respondent and his co-defendant

were jointly given ten peremptory strikes to pick the

12-person jury and one additional strike to pick the

alternate. The prosecution was given six strikes to pick

the jury and one to pick the alternate. Counsel were

directed to exercise their strikes simultaneously, first

to pick the 12-person panel, and then, once the clerk

collated the jury lists and returned them to counsel, to

pick the alternate. J.A. 167-168, 175-176, 180. That

process allowed the possibility of both parties striking

the same juror, which did not happen in picking the

initial 12-person jury, but both parties did simultane-

ously strike the same potential alternate juror. J.A.

179-181. The record does not reflect how the co-de-

fendants decided among themselves how they would

7

exercise jointly their peremptory challenges. After the

principal and alternate strikes had been made, the

following jurors were selected (J.A. 182-183):

No. 3, R. Johann

No. 8, M. Johnson

No. 11, J. Schotz

No. 17, M. Baker

No. 19, B. Schaller

No. 22, J. Bollinger

No. 23, R. Conn

No. 24, S. Chmielewski

No. 25, D. Finck

No. 26, M. Simmonds

No. 27, M. Welter

No. 30, C. Pelander

Alternate: No. 32, A. Riley

The defense had used one of its ten peremptory chal-

lenges to strike Gilbert (No. 31). J.A. 180. Respondent

neither requested an additional challenge nor said that

any other juror was objectionable as a regular juror.

Both parties struck potential juror No. 34, James Allen,

as an alternate juror, being content with both Arnold

Riley (No. 32) and Julie Ball (No. 33). J.A. 181.

Defense counsel next raised a challenge under

Batson v. Kentucky, 476 U.S. 79 (1986), to the govern-

ment’s peremptory strikes of the two black potential

jurors, No. 15, Smith (the school teacher with a heavy

workload), and No. 29, Hanserd (who had the recent

death in the family and did not want to serve). J.A. 175-

176. The court asked the government to provide race-

neutral explanations for the strikes. J.A. 176-177; see

Batson, 476 U.S. at 97. The government responded

that Smith raised her potential work problems, and that

8

Hanserd appeared to be upset by the death in her

family. J.A. 176-177. The court allowed the strike of

Hanserd to stand, but disallowed the strike of Smith.

J.A. 177-178. The court found that, although Smith

asked to be excused, she was willing to serve and “I

don’t think that there’s * * * an appropriate reason to

exercise a peremptory challenge with respect to her.”

J.A. 178. Smith was placed on the jury. The

government did not request to exercise the peremptory

strike that had been disallowed, and the court did not

offer that opportunity.

The inclusion of Smith on the jury had the effect of

bumping Christine Pelander (No. 30) off the 12-person

panel. J.A. 178. The court considered the possibility

that Pelander, who had been acceptable to the parties,

might become the alternate. J.A. Tr. 178-179. Instead,

the court decided to give each party one additional per-

emptory strike to choose an alternate. The next three

jurors on the list were Pelander (No. 30), Riley (No. 32),

and Ball (No. 33). The government struck Pelander and

the defense struck Ball, leaving Riley, once again, as

the alternate juror. J.A. 181-182.

The clerk read off the following names of the selected

jurors (J.A. 183):

No. 3, R. Johann

No. 8, M. Johnson

No. 11, J. Schotz

No. 15, M. Smith

No. 17, M. Baker

No. 19, B. Schaller

No. 22, J. Bollinger

No. 23, R. Conn

No. 24, S. Chmielewski

No. 25, D. Finck

No. 26, M. Simmonds

No. 27, M. Welter

Alternate: No. 32, A. Riley

Darvin Finck (No. 25), however, was not present to

answer when the clerk called his name. J.A. 183-184.

Defense counsel suggested that the defense and the

prosecution be given an additional peremptory strike

and that the next selected juror should substitute for

Finck on the 12-person jury, without affecting the

status of Riley as the alternate. J.A. 185-186. Defense

counsel explained that this suggestion would make it

possible to add an Hispanic to the jury because the next

three available jurors would include Francisco Olivas

(No. 35). J.A. 185-186. The court declined that sug-

gestion. It decided to accept the jury as selected and to

have the marshals attempt to locate Finck. J.A. 184-

189. When trial commenced two days later, Finck was

excused, so Riley became the twelfth juror and the trial

proceeded without an alternate. J.A. 199-200. As a

result of that process, the defense exercised 12 per-

emptory challenges in selecting the jury that served

during the trial.

2. The court of appeals reversed respondent's con-

victions based on the “impairment” of respondent's

right of peremptory challenge. Pet. App. la-19a. It

first held that the district court abused its discretion by

refusing to excuse potential juror Gilbert for cause. /d.

at 7a-8a. Relying on this Court’s decision in Ross v.

Oklahoma, 487 U.S. 81 (1988), the court held that the

error did not constitute a violation of the Sixth Amend-

ment, because Gilbert did not actually sit on the jury.

Pet. App. 9a. The court held, however, that the error

amounted to a violation of respondent's right to due

10

process under the Fifth Amendment. The court rea-

soned that the defense was forced to use a peremptory

challenge to remove a juror who should have been

removed for cause, and that the defense was thereby

effectively denied a peremptory challenge to which it

was entitled by law. /d. at 9a-14a. The court held that,

because respondent was denied the right to use his full

complement of peremptory challenges as he saw fit,

automatic reversal was required without any inquiry

into whether the error was harmless. /d. at 14a-l5a.

Judge Rymer dissented. Pet. App. 15a-19a. She

concluded that the loss of a peremptory challenge does

not amount to a constitutional violation. /d. at 15a. In

any event, Judge Rymer explained, respondent never

suggested to the district court that he wanted to strike

some other juror with the peremptory challenge that

was instead used to remove Gilbert. /d. at 16a. Judge

Rymer therefore concluded that there was no indication

that respondent was adversely affected by the district

court’s refusal to remove Gilbert for cause. /bid. Judge

Rymer further stated that respondent could obtain

relief only if he could establish plain error, because he

had not adequately preserved an objection based on the

denial of his right to exercise peremptory challenges.

Id. at 16a-17a. Finally, Judge Rymer concluded that

respondent had failed to demonstrate plain error

because he could show no prejudice and bevause

it was far from clear that the use of a peremptory

challenge to remove a juror who should have been ex-

cluded for cause amounts to a due process violation, or

even to a denial of the right to peremptory challenges

provided by Rule 24 of the Federal Rules of Criminal

Procedure. Pet. App. 17a-18a.

ll

SUMMARY OF ARGUMENT

I. The right of federal criminal defendants to exer-

cise peremptory challenges is created by federal rule,

not by the Constitution. Such challenges “are not con-

stitutionally protected fundamental rights; rather, they

are but one state-created means to the constitutional

end of an impartial jury and a fair trial.” Georgia v.

McCollum, 505 U.S. 42, 57 (1992). In Ross v. Okla-

homa, 487 U.S. 81 (1988), this Court held that a defen-

dant who was forced to “waste” a peremptory challenge

by using it to remove a juror who should have been

removed for cause was neither denied an impartial jury

nor any liberty interest under the Due Process Clause.

The Court concluded that applicable state law required

a defendant who objected to the denial of a for-cause

challenge to use a peremptory strike to cure the error.

Thus, the defendant in Ross received all to which he

was entitled as a matter of state law. This Court should

reach a similar conclusion about the right to exercise

peremptory challenges under Rule 24 of the Federal

Rules of Criminal Procedure. Recognition of a pro-

cedural requirement that a defendant must use a per-

emptory challenge to cure the judge’s error in denying

a challenge for cause is consistent with the purpose of

the peremptory challenge to assist in empaneling an

impartial jury and, by preventing the need for retrial,

the requirement conserves judicial resources when a

trial judge has made an error in assessing the impartial-

ity of a potential juror.

Even if the rule-based right of peremptory challenge

under Rule 24 is found to be impaired when a defendant

“wastes” the challenge to cure an erroneous ruling on a

challenge for cause, it does not amount to a consti-

tutional violation unless the error actually results in the

12

seating of a biased juror. In general, the infringement

of a nonconstitutional rule of procedure does not rise to

the level of a due process violation. Engle v. Isaac, 456

U.S. 107, 121 n.21 (1982). Rather, such an infringement

forms the predicate for a due process claim only where

it “results in prejudice so great as to deny a defendant

h.. Fifth Amendment right to a fair trial.” United

States v. Lane, 474 U.S. 438, 446 n.8 (1986). The district

court's error in refusing to excuse a potential juror for

cause simply led the defense in this case to use one of

its peremptory challenges to achieve the same purpose;

that consequence cannot reasonably be said to have

deprived respondent of a fair trial.

Il. Even if there was an impairment of respondent's

rights to exercise peremptory challenges under Rule

24, and even if that impairment were viewed as impli-

cating the Due Process Clause, the error is subject to

harmless-error analysis, and, in this case, is harmless.

Rule 52(a) of the Federal Rules of Criminal Procedure

directs that an error in a federal criminal case shall be

disregarded unless it affects “substantial rights.” If the

jury that decided the case was fair and impartial, the

impairment of respondent’s exercise of peremptory

challenges did not affect substantial rights.

A small class of fundamental rights has been found

“so intrinsically harmful as to require automatic re-

versal” without showing an effect on the outcome of the

trial, but that is only because errors in that class “infect

the entire trial process” and “necessarily render a trial

fundamentally unfair.” Neder v. United States, 119 S.

Ct. 1827, 1833 (1999). The error in this case bears no

resemblance to those errors. “[I}f the defendant had

counsel and was tried by an impartial adjudicator, there

is a strong presumption that any other errors that may

have occurred are subject to harmless-error analysis.”

13

Rose v. Clark, 478 U.S. 570, 579 (1986). Respondent

had counsel and was tried before an impartial jury.

Any impairment of his rule-based right to make an

arbitrary exclusion of a trial juror did not produce a

fundamentally unfair trial.

A rule of automatic reversal for such an error in

these circumstances would produce substantial in-

justice. Per se reversal would force the criminal justice

system to bear the costs of retrial, a process that often

would impose particular strains on victims of crime,

witnesses attempting to recall prior events, and

society’s reasonable expectation in the finality of the

judicial process. While the intangible values furthered

by the peremptory challenge are important, in this

setting the infringement of those values is not of suffi-

cient consequence to justify the requested remedy of

reversing a conviction after a fundamentally fair trial.

And given the inevitability of errors that impair per-

emptory challenges in the hurly burly of jury selection,

automatic reversal for such errors would impose

burdens on the criminal justice system in a substantial

number of cases.

Even if reversal without a specific showing of pre-

judice were warranted in some cases where a per-

emptory challenge is “wasted” on a juror who should

have been excused for cause, the record in this case

does not support that result. The defense in this case

was allocated a total of ten peremptory challenges to

select the original jury, and it had unimpaired use of

nine. The defense thus substantially enjoyed the right

to participate in jury selection through the exercise of

peremptory challenges, despite any error involving one

such challenge. Moreover, although respondent ulti-

mately exhausted his peremptory challenges after

having “wasted” one to remove the juror who should

14

have been excused for cause, respondent never ob-

jected to any juror who remained on the jury or

indicated that he would have exercised an additional

strike if he had one. On this record, there is no indica-

tion that the jury that ultimately decided respondent’s

case would have been composed differently even if his

for-cause challenge had not been erroneously denied.

ARGUMENT

I. A DEFENDANT'S RULE-BASED OR DUE PRO-

CESS RIGHTS ARE NOT VIOLATED WHEN HE

EXERCISES A PEREMPTORY CHALLENGE TO

REMOVE A JUROR WHO SHOULD HAVE BEEN

EXCUSED FOR CAUSE

This Court has “long recognized that peremptory

challenges are not of constitutional dimension.” Ross v.

Oklahoma, 487 U.S. 81, 88 (1988) (citing Gray v. Missis-

sippi, 481 U.S. 648, 663 (1987)); Georgia v. McCollum,

505 U.S. 42, 57 (1992) (“This Court repeatedly has

stated that the right to a peremptory challenge may

be withheld altogether without impairing the consti-

tutional guarantee of an impartial jury and a fair

trial.”); Stilson v. United States, 250 U.S. 583, 586

(1919) (“There is nothing in the Constitution of the

United States which requires the Congress to grant

peremptory challenges to defendants in criminal cases;

trial by an impartial jury is all that is secured.”). Be-

cause a defendant has no constitutional right to per-

emptory challenges in a criminal case, the existence of

any such right is solely the product of statute or rule.

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 1387 n.7

(1994); Ross, 487 U.S. at 89; Frazier v. United States,

335 U.S. 497, 505 n.11 (1948). In this case, Rule 24 of

the Federal Rules of Criminal Procedure affords a

criminal defendant the right to exercise peremptory

15

challenges. In light of the history and purpose of per-

emptory challenges to serve as “but one state-created

means to the constitutional end of an impartial jury and

a fair trial,” McCollum, 505 U.S. at 57, there is no

“impairment” of that right if the defendant uses a per-

emptory challenge to remove a juror who should have

been removed for cause. And even if the Court were to

conclude that there is an impairment of the defendant’s

rule-based rights in that situation, such an impairment

does not rise to the level of a due process violation.

A. The Right To Exercise Peremptory Challenges

Under Federal Rule Of Criminal Procedure 24 Is

Subject To Reasonable Procedural Limitations

Because peremptory challenges are not guaranteed

by the Constitution, both the existence and nature of

the right to make such challenges in federal criminal

cases turns on a construction of Federal Rule of Crimi-

nal Procedure 24. As applicable to this case, Rule 24

specifies that, for the selection of the 12-person jury for

the trial of a non-capital felony, the government is

entitled to six peremptory challenges and the defendant

or defendants are jointly entitled to ten peremptory

challenges. Fed. R. Crim. P. 24(b). In a multiple-

defendant case, such as this one, the district court has

discretion to allow defendants additional peremptory

challenges and to determine whether they shall be ex-

ercised separately or jointly. /bid. When one alternate

juror is selected, as happened in this case, one addi-

tional peremptory challenge is granted to the govern-

ment and to the defendants jointly, and it may be used

only in the selection of the alternate. Rule 24(c).

Rule 24 does not specify in any other relevant way

what procedures the court should employ in jury selec-

tion. In such matters, the district courts have long been

16

given broad discretion. See Pointer v. United States,

151 U.S. 396, 410 (1894); Lewis v. United States, 146

U.S. 370, 377 (1892). By longstanding practice, federal

courts have imposed a variety of procedural restrictions

on the exercise of peremptory challenges, many of

which might be said to “impair” an individual de-

fendant’s effective use of those challenges. This Court

has held, however, that so long as the empaneled jury is

fair and impartial, a defendant’s rights have not been

infringed.

Although Federal Rule of Criminal Procedure 24 was

promulgated in 1946, a federal statutory right to per-

emptory challenges in some form dates to 1790.2 At

common law, a party could exclude a potential juror,

who would otherwise qualify for service, without pro-

viding a reason, and the federal statutes allowing such

peremptory challenges carried forward the underlying

purposes of that practice. See Swain v. Alabama, 380

U.S. 202, 214-220 (1965). The central purpose of the

peremptory challenge is to provide reinforcement for

the right to an “impartial jury.” U.S. Const. Amend.

VI. See Frazier, 335 U.S. at 505 (“the right is given in

aid of the party’s interest to secure a fair and impartial

jury”); J.£.B., 511 U.S. at 137 n.8 (“[The] sole purpose

lof the peremptory challenge] is to permit litigants to

assist the government in the selection of an impartial

* See Holland v. Illinois, 493 U.S. 474, 481 n.1 (1990) (dis-

cussing Act of Apr. 30, 1790, ch. 9, § 30, 1 Stat. 119). A general

right to exercise peremptory challenges in federal non-capital

cases did not exist until the Act of June 8, 1872, ch. 333, 17 Stat.

282, unless a local rule of the federal court adopted a provision of

state law allowing such challenges, Act of Apr. 30, 1790, ch. 9, § 30,

1 Stat. 119. See Frazier, 335 U.S. at 505 n.11.

17

trier of fact.”) (quoting Edmonson v. Leesville Concrete

Co., 500 U.S. 614, 620 (1991)).*

Judicially imposed limitations on the exercise of per-

emptory challenges are a necessity. As the Court noted

in Ross, “the concept of a peremptory challenge as a

totally freewheeling right unconstrained by any pro-

cedural requirement is difficult to imagine.” 487 U.S. at

90. It is therefore not surprising that the exercise of

peremptory challenges has long been subject to

constraints. /bid. For example, this Court has held

that a defendant may not complain, in a joint trial, that

his co-defendants had “impaired” his tactical use of

peremptory challenges to select a jury by using their

8 Blackstone elaborated on the purpose of the peremptory:

[Ijn criminal cases, or at least in capital ones, there is, in

favorem vitae, allowed to the prisoner an arbitrary and capri-

cious species of challenge to a certain number of jurors, with-

out shewing any cause at all; which is called a peremptory

challenge: a provision full of that tenderness and humanity to

prisoners, for which our English laws are justly famous. This

is grounded on two reasons. 1. As every one must be sensible,

what sudden impressions and unaccountable prejudices we are

apt to conceive upon the bare looks and gestures of another;

and how necessary it is, that a prisoner (when put to defend his

life) should have a good opinion of his jury, the want of which

might totally disconcert him; the law wills not that he should

be tried by any one man against whom he has conceived a

prejudice, even without being able to assign a reason for such

his dislike. 2. Because, upon challenges for cause shewn, if

the reason assigned prove insufficient to set aside the juror,

perhaps the bare questioning his indifference may sometimes

provoke a resentment: to prevent all ill consequences from

which, the prisoner is still at liberty, if he pleases, per-

emptorily to set him aside.

4 William Blackstone, Commentaries *353 (quoted in Lewis v.

United States, 146 U.S. 370, 376 (1892)).

18

peremptory challenges to strike jurors acceptable to

him, United States v. Marchant, 25 U.S. (12 Wheat.)

480, 482 (1827), or that he was forced to share his per-

emptory challenges with his co-defendants, thus reduc-

ing the number he could independently exercise,

Stilson v. United States, supra. The Court has also

upheld federal court practices requiring simultaneous

use of peremptory challenges by the defense and the

government, even though that method might cause the

defendant to “waste” a peremptory challenge on a juror

simultaneously excused by the prosecution. See

Pointer, 151 U.S. at 409, 412 (acknowledging that “[iJt is

true that, under the method pursued in this case, it

might occur that the defendant would strike from the

list the same persons stricken off by the government,”

but finding no impairment of the right of peremptory

challenge). The Court has approved a practice under

which each potential juror, in turn, must be challenged

either for cause or peremptorily and, if not excused,

sworn before another juror is considered, even though

that process limits the defendant’s ability to allocate his

peremptory challenges among potential jurors. See St.

Clair v. United States, 154 U.S. 134, 147-148 (1894)

(finding it “not inconsistent with any settled principle of

criminal law, nor does it interfere with the selection of

impartial juries”). The fundamental reason why each

described procedure has been endorsed, despite its al-

leged adverse effect on the tactical use of peremptory

challenges by defendants to dictate the composition of

juries, is that it did not “interfere with the selection of

impartial juries.” Jbid. That is all the Constitution

requires, see Stilson, 250 U.S. at 586, and that is the

main objective of granting peremptory challenges, see

Ross, 487 U.S. at 88.

19

B. Requiring A Defendant To Use A Peremptory Chal-

lenge To Strike A Juror Who Should Have Been Re-

moved For Cause Is A Reasonable Procedural Rule

Measured against those standards, a requirement

that a defendant must use a peremptory challenge to

“cure” the trial court’s erroneous denial of a for-cause

strike should not be found to impair the rule-based

right of peremptory challenge. Rather, requiring the

defendant to use the challenge to remove the partial

juror is consistent with the core purpose of granting

peremptory challenges—to assist in securing an im-

partial jury.

Although the Court has never addressed this ques-

tion as a matter of federal law,’ it has examined a

similar question arising under state law. In Ross v.

Oklahoma, 487 U.S. 81 (1988), the Court concluded that

a defendant could not base a due process claim on the

theory that having to use a peremptory challenge to

cure a trial court’s error in denying a for-cause chal-

lenge “arbitrarily depriv{ed] him of the full complement

of * * * challenges allowed under Oklahoma law.” /d.

‘ The Court explicitly noted in Ross, 487 U.S. at 91 n.4, that it

“need not decide the broader question whether, in the absence of

Oklahoma’s limitation on the ‘right’ to exercise peremptory

challenges, ‘a denial or impairment’ of the exercise of peremptory

challenges occurs if the defendant uses one or more challenges to

remove jurors who should have been excused for cause.” Compare

Stroud v. United States, 251 U.S. 15 (1919), on denial of rehearing,

215 U.S. 380, 382 (1920) (defendant asserted that prejudicial error

occurred «shen he had used a peremptory challenge to remove a

juror who should have been struck for cause; rehearing denied

because, in’er alia, the record showed that the defendant had been

allowed 21 challenges, one more than the law required, “and the

record does not disclose that other than an impartial jury sat on

the trial”).

20

at 89. The Court held “[iJt is a long settled principle of

Oklahoma law that a defendant who disagrees with the

trial court’s ruling on a for-cause challenge must, in

order to preserve the claim that the ruling deprived

him of a fair trial, exercise a peremptory challenge to

remove the juror.” Jbid. “Even then,” the Court

added, “the error is grounds for reversal only if the

defendant exhausts all peremptory challenges and an

incompetent juror is forced upon him.” Jbid. Thus, the

Court concluded, “[aJs required by Oklahoma law, [the

defendant] exercised one of his peremptory challenges

to rectify the trial court’s error [in denying a challenge

for cause], and consequently he retained only eight per-

emptory challenges to use in his unfettered discretion.

But he received all that Oklahoma law allowed him, and

therefore his due process challenge fails.” /d. at 90-91.

Federal law should be construed to contain a similar

procedural requirement.’ In view of the unquestioned

® While several courts of appeals have concluded that “it is

error for a court to force a party to exhaust his peremptory chal-

lenges on persons who should be excused for cause, for this has the

effect of abridging the right to exercise peremptory challenges,”

United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976); accord,

e.g., Kirk v. Raymark Indus., Inc., 61 F.3d 147, 161 (3d Cir. 1995)

(collecting cases), cert. denied, 516 U.S. 1145 (1996), the cases fol-

lowing that rule have been criticized for contradicting “a line of

earlier cases” holding that, even where the defendant exhausted

his peremptory challenges after using one to remove a juror who

should have been removed for cause, the burden rests on the chal-

lenging party “to demonstrate that because he used a peremptory

challenge on an incompetent venireman, an objectionable juror was

allowed to serve,” United States v. Allsup, 566 F 2d 68, 76 (9th Cir.

1977) (Foley, DJ., concurring). In view of the common-law

heritage of the federa! peremptory challenge right, the proper rule

to be adopted for federal practice may be illuminated by admini-

stration of the peremptory challenge in the States. Twenty-six

21

legitimacy of procedural restraints on the defendant’s

use of peremptory challenges to influence the composi-

tion of the jury, see pp. 17-18, swpra, there can be no

claim that a defendant must have absolute freedom to

use challenges in whatever way the defendant wishes.

Rather, defense peremptory challenges have always

been subject to court-imposed procedural limits so

long as they are consistent with “settled principles of

criminal law [recognized] to be essential in securing

impartial juries for the trial of offences.” Pointer, 151

U.S. at 408. As the Court acknowledged in Ross, per-

emptory challenges are “a means to achieve the end of

an impartial jury.” 487 U.S. at 88. It is entirely

consistent with that purpose to require that defendants

use their peremptory challenges to remove jurors

whom the court should have removed for cause, there-

by protecting the impartiality of the jury. In selecting

a jury, defendants as well as the prosecution can be

expected to exercise responsibility for preserving the

fairness and integrity of the trial, even while pursuing

their own aims. Cf. Georgia v. McCollum, 505 U.S. at

50-55, 59 (even though a criminal defendant seeks to

protect private interests, participation in selection of

such a “quintessential governmental body” constitutes

state action for equal protection purposes, such that a

criminal defendant’s “purposeful discrimination on the

ground of race in the exercise of peremptory chal-

States have a rule that a defendant may not challenge on appeal a

trial judge’s error in denying a for-cause challenge where the

defendant exercised a peremptory challenge to remove the juror,

and those States do not appear to have reversed a conviction on

the theory that such a use of a peremptory challenge constitutes a

prejudicial “impairment” of the peremptory-challenge right. (We

have collected in an appendix to this brief a summary of the

positions taken by the state courts.)

22

lenges” is prohibited). “[(T)here is nothing arbitrary

or irrational about such a requirement, which sub-

ordinates the absolute freedom to use a peremptory

challenge as one wishes to the goal of empaneling an

impartial jury.” Ross, 487 U.S. at 90.

C. Any Impairment In This Case Of The Right To Exer-

cise Peremptory Challenges Does Not Violate The

Due Process Clause

Even if this Court were to conclude that a federal

criminal defendant’s rule-based right to exercise per-

emptory challenges is impaired when he uses a strike to

remove a juror who should have been removed for

cause, that impairment would not by itself give rise to

a due process violation. The question whether the im-

pairment of the right constitutes a violation of the Due

Process Clause turns on whether the violation “results

in prejudice so great as to deny a defendant his Fifth

Amendment right to a fair trial,” United States v. Lane,

474 U.S. 438, 446 n.8 (1986); Estelle v. McGuire, 502

U.S. 62, 75 (1991) (Due Process Clause comes into play

where an error “so infused the trial with unfairness as

to deny due process of law”) (quoting Lisenba v.

California, 314 U.S. 219, 228 (1941)). An impairment of

the rule-based right to excuse a juror without cause is

not an error of constitutional dimension.

® In contrast, constitutional error does occur when a biased

juror sits on the case because the defendant was improperly

deprived of a peremptory challenge that would have allowed the

defendant to remove him. Cf. Irvin v. Dowd, 366 U.S. 717 (1961).

There is, however, no general reason to find a constitutional

violation based on the impairment of peremptory challenges unless

it results in the seating of a biased juror. A due process violation

in this context requires a showing of prejudice to a fair trial, and if

the jury that sits is impartial, no such showing can generally be

made. See pp. 28-31, infra.

23

The impairment of a defendant's right to exercise

peremptory challenges does not deny the defendant the

right to be tried by a fair and impartial jury. In Ross,

this Court rejected the view that a state court's errone-

ous denial of a for-cause challenge violated the de-

fendant’s Sixth Amendment right to an impartial jury,

even though the defendant used one of his peremptory

challenges to remove the juror. 487 U.S. at 87-88. “So

long as the jury that sits is impartial, the fact that the

defendant had to use a peremptory challenge to achieve

that result does not mean the Sixth Amendment was

violated.” /d. at 88. As noted above, the Court in Ross

also concluded that requiring the defendant to use a

peremptory challenge to remove a juror who should

have been excused for cause did not deprive the de-

fendant of his rights under the Due Process Clause,

because state law required the defendant to take that

action in order to appeal the trial court’s denial of a for-

cause challenge. /d. at 89-91. But it is not necessary to

conclude that a qualification like the one recognized by,

the Court in Ross exists in federal law to reject the

claim of a due process violation. An error in forcing a

defendant to “waste” a peremptory challenge would

deprive him only of a rule-based right to exercise that

challenge, not of any right under the Constitution.

In unusual circumstances, the Court has held that the

violation of a non-constitutional rule of procedure de-

prived an individual of due process. For example, the

Court has held that the imposition of a sentence by a

jury that was not informed of its discretion to impose a

lower sentence deprived the defendant of due process,

and not simply “of a procedural right of exclusively

state concern.” Hicks v. Oklahoma, 447 U.S. 343, 346-

347 (1980). The Court has also found a due process vio-

lation when a State denied a hearing to a complainant,

24

based solely on an official’s failure to comply with a

state-law deadline for initiating an adjudication. Logan

v. Zimmerman Brush Co., 455 U.S. 422 (1982). But

those cases bear no resemblance to the criminal pro-

cedure right at issue here. Unlike the law at issue in

Hicks, Rule 24 defines a process for selecting a jury, not

for instructing the sentencer on the extent of its dis-

cretion.’ And unlike the situation in Logan, a defendant

whose peremptory challenge rights are impaired re-

tains his right to be tried by an impartial factfinder and

to exercise full due process rights before being finally

deprived of a proteced liberty interest.

The court of appeals’ holding that an impairment of

the rule-based right to exercise peremptory challenges

by itself works a due process violation is inconsistent

with this Court’s many holdings that violations of non-

constitutional procedural rights provide no basis for

federal habeas corpus relief. See Estelle v. McGuire,

502 U.S. at 67 (“We have stated many times that

‘federal habeas corpus relief does not lie for errors of

state law.’”) (quoting Lewis v. Jeffers, 497 U.S. 764, 780

(1990)); Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A

federal court may not issue the writ on the basis of a

perceived error of state law.”); Rose v. Hodges, 423 U.S.

19, 21-22 (1975) (per curiam) (same). That principle

would be seriously undermined, if not altogether elimi-

' The jury in Hicks was erroneously instructed that punish-

ment must be assessed at 40 years’ imprisonment, when state law

authorized the jury to impose any sentence greater than ten years’

imprisonment. 447 U.S. at 345-346. The defendant was thereby

deprived of his opportunity to be heard by a factfinder that could

give him “an opportunity [to be heard] at a meaningful time and in

a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552

(1965). Nothing of the kind can be said here; respondent enjoyed

his full right to be heard in his criminal trial.

25

nated, if a violation of a criminal procedure right con-

ferred by statute or rule alone were sufficient to

establish a deprivation of liberty without due process of

law. Under that analysis, due process claims could be

brought on habeas corpus whenever a State violated its

own evidentiary rules (Estelle), statutory appellate

process (Pulley), or limits on commutation authority

(Hodges). To accord constitutional protection to pro-

cedural rights voluntarily created by the government

skews the basic purpose of due process, which is to

guarantee fundamental fairness. That expansive view

of the Due Process Clause cannot be sustained. As the

Court has explained:

We have long recognized that a “mere error of

state law” is not a denial of due process. Gryger v.

Burke, 334 U.S. 728, 731 (1948). If the contrary

were true, then “every erroneous decision by a

state court on state law would come [to this Court]

as a federal constitutional question.” /bid.

Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982).

Those principles support the conclusion that impair-

ment of respondent’s rights under the federal rule

governing peremptory challenges does not per se vio-

late the Constitution. See Lane, 474 U.S. at 446 n8

(noting that the violation of Federal Rule of Criminal

Procedure 8, governing joinder, “would rise to the level

of a constitutional violation only if it results in prejudice

so great as to deny a defendant his Fifth Amendment

right to a fair trial”). And, although respondent exer-

cised one of his allotted peremptory challenges to re-

move a juror who should have been removed for cause,

he does not contend that the jury that tried him was

anything other than fair and impartial.

26

The range of discretion available to a judge in con-

ducting jury selection, despite the potential for the

judge’s actions to affect the exercise of peremptory

challenges, underscores that any impairment here did

not render the trial fundamentally unfair. Legitimate

limitations on voir dire may significantly affect the

exercise of peremptory challenges, without raising

any constitutional issue. See Mu’min v. Virginia, 500

U.S. 415, 424- 425 (1991); ef. J.B.B., 511 U.S. at 143-144.

Jury selection procedures necessarily constrain the

exercise of peremptory challenges. See Pointer v.

United States, supra; St. Clair v. United States, supra.

Finally, peremptory challenges may not be used to dis-

criminate on the basis of race, Batson v. Kentucky, 476

U.S. 79 (1986), or gender, J.E.B., supra. See Georgia v.

McCollum, supra (defense peremptory challenges are

subject to Batson scrutiny).

Given these well-established limitations on the right

to exercise peremptory challenges, the Due Process

Clause is not violated simply because the defendant has

had to exercise a peremptory challenge to remove a

juror who should have been excused for cause. As

Judge Rymer explained in dissent, “[t]o find a due pro-

cess violation for ‘effectively’ denying or impairing

[respondent’s] ‘right to the full complement of per-

emptory challenges to which he was entitled under

federal law,’ as the majority does, [at Pet. App. 9a],

comes full circle by ‘effectively’ making the exercise of a

peremptory challenge a constitutional right.” Pet.

App. 19a. Yet this Court has repeatedly held the op-

posite.

27

Il. IMPAIRMENTS OF A DEFENDANT'S EXERCISE

OF PEREMPTORY CHALLENGES ARE SUB-

JECT TO HARMLESS ANALYSIS

Rule 52(a) of the Federal Rules of Criminal Pro-

cedure provides that “[aJny error, defect, irregularity

or variance which does not affect substantial rights

shall be disregarded.” “{A] federal court may not in-

voke supervisory power to circwmvent the harmless-

error inquiry prescribed by Federal Rule of Criminal

Procedure 52(a). * * * Rule 52 is, in every pertinent

respect, as binding as any statute duly enacted by

Congress, and federal courts have no more discretion to

disregard the Rule’s mandate than they do to disregard

constitutional or statutory provisions.” Bank of Nova

Scotia v. United States, 487 U.S. 250, 254-255 (1988);

Lane, 474 U.S. at 444-449 & n.11.

In general, to affect substantial rights, an “error

must have been prejudicial: It must have affected the

outcome of the district court proceedings.” United

States v. Olano, 507 U.S. 725, 734 (1993); see, e.g.,

United States v. Mechanik, 475 U.S. 66, 72 (1986).

Even errors that violate important constitutional rights

are generally subject to analysis under that test. Neder

v. United States, 119 S. Ct. 1827, 1833 (1999). Reversal

for error without consideration of whether the de-

fendant suffered case-specific prejudice is “the excep-

tion and not the rule.” Rose v. Clark, 478 U.S. 570, 578

(1986). While a few errors are deemed “so intrinsically

harmful as to require automatic reversal (i.¢., ‘affect

S Similarly, Section 2111 of Title 28, United States Code, pro-

vides that, “[o)n the hearing of any appeal or writ of certiorari in

any case, the court shall give judgment after an examination of the

record without regard to errors or defects which do not affect the

substantial rights of the parties.”

28

substantial rights’) without regard to their effect on the

outeome,” Neder, 119 S. Ct. at 1833, “if the defendant

had counsel and was tried by an impartial adjudicator,

there is a strong presumption that any other errors

that may have occurred are subject to harmless-error

analysis.” Rose, 478 U.S. at 579. Under those prin-

ciples, even if it was error when respondent was re-

quired to use a peremptory challenge to strike the juror

who should have been removed for cause, reversal is

not required absent a showing of prejudice. The court

of appeals’ holding that the error demanded automatic

reversal is incorrect and should be rejected.’

A. An Impairment Of Peremptory Challenges Is Harm-

less If An Impartial Jury Sits

Since this Court’s decision in Chapman v. California,

386 U.S. 18 (1967), it has been clear that even errors

that violate important constitutional rights are subject

to review for harmlessness. Harmless-error analysis

® Harmless-error analysis applies whether the error in ques-

tion is constitutional or statutory. When the error in question is of

constitutional dimension, the government bears the burden of

showing beyond a reasonable doubt that the error did not affect

the outcome of trial proceedings. See Chapman v. California, 386

U.S. 18, 21-24 (1967); United States v. Hasting, 461 U.S. 499, 510-

511 (1983). When the error is not of constitutional dimension, the

government bears the burden of demonstrating that the error did

not have a “substantial and injurious effect or influence in deter-

mining the jury's verdict.” Kotteakos v. United States, 328 U.S.

750, 776 (1946). Thus, the standard of harmless-error review in

cases such as this one will turn on whether, assuming there is

error, the Court finds a violation of statutory or constitutional

rights. Our position is that no error occurred, but if the Court

disagrees, it should find no more than a violation of rule-based

rights, and should conduct harmless-error analysis under Kot-

teakos.

29

applies, for example, to improper comments on the de-

fendant’s failure to testify, Chapman, supra; to admis-

sion of a coerced confession, Arizona v. Fulminante,

499 U.S. 279, 310 (1991); and to a violation of the Sixth

Amendment’s jury trial right by failing to instruct the

jury on an element of the offense, Neder v. United

States, 119 S. Ct. at 1833-1837. In only a handful of

cases has the Court found that certain fundamental con-

stitutional errors require reversal even if they have no

effect on the outcome of trial proceedings. See, e.g.,

United States v. Olano, 507 U.S. at 735 (referring to

errors that deprive defendants of the “basic protections

[without which] a criminal trial cannot reliably serve

its function as a vehicle for determination of guilt or

innocence, and no criminal punishment may be re-

garded as fundamentally fair”) (quoting Rose, 478 U.S.

at 577-578). Those instances of “structural error”

include Gideon v. Wainwright, 372 U.S. 335 (1963) (com-

plete denial of trial counsel); Tumey v. Ohio, 273 U.S.

510 (1927) (biased judge); Vasquez v. Hillery, 474 U.S.

254 (1986) (racial discrimination in grand jury selec-

tion); Waller v. Georgia, 467 U.S. 39 (1984) (denial of

public trial); Gomez v. United States, 490 U.S. 858, 876

(1989) Gury selection before a magistrate lacking juris-

diction); and Sullivan v. Louisiana, 508 U.S. 275 (1993)

(defective reasonable doubt instruction). Similarly, the

seating, over the defendant’s objection, of an actually

biased juror represents a form of error that is intrinsi-

cally harmful and that warrants reversal without any

inquiry into case-specific prejudice. See, e.g., Rose, 478

US. at 578; Parker v. Gladden, 385 U.S. 363, 366 (1966);

ef. Morgan v. Illinois, 504 U.S. 719, 726-727 (1992).

The error in this case differs significantly from those

errors that have been found to “infect the entire trial

process” and that “necessarily render a trial funda-

30

mentally unfair.” Neder, 119 S. Ct. at 1833. Where no

actually biased juror is seated, errors impairing the

exercise of peremptory challenges do not deprive the

defendant of an “impartial jury.” At most, such errors

deprive the defendant of the right to exclude a juror

whom the defendant believes would be less favorable

to him than some other juror. Such errors do not

justify the conclusion that in each and every case the

error affects “substantial rights,” notwithstanding the

defendant’s representation by counsel and receipt of

a fair trial before an impartial jury. Those errors,

therefore, are not within the “very limited class” of

“structural” errors. Neder, 119 S. Ct. at 1833.

Accordingly, the usual form of harmless-error inquiry

applies in this case, under which an error does not af-

fect the defendant’s “substantial rights” unless it

affects the outcome of the trial." The error in this case

cannot reasonably be said to have had any such effect.

It would be purely speculative to conclude that the sub-

stitution of one impartial juror for some other impartial

juror would have changed the trial’s verdict. And it is

not sufficient to note that the error “may have resulted

in a jury panel different from that which would other-

wise have decided the case.” Ross, 487 U.S. at 87 (re-

jecting claim that jury selection error warranted

reversal even if “the composition of the jury panel

might have changed significantly”). The jury that sat

was fair and impartial, and respondent had no right to a

10 The government carries the burden to show harmlessness if

a proper objection has been made in the district court; if the claim

of error is forfeited, the defendant must show an effect on sub-

stantial rights under the plain-error standard of Rule 52(b). See

generally United States v. Olano, 507 U.S. 725 (1993); Johnson v.

United States, 520 U.S. 461, 465 (1997).

31

jury composed of particular jurors. See Marchant, 25

U.S. (12 Wheat.) at 482; Taylor v. Louisiana, 419 U.S.

522, 538 (1975) (“Defendants are not entitled to a jury of

any particular composition.”).

This Court reached a similar conclusion in deter-

mining that an impairment of the exercise of per-

emptory challenges does not, without more, justify

granting a new trial in a civil case. See McDonough

Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553

(1984). In that case, a juror’s failure to respond to a

question on voir dire denied a party information that

would have been useful in exercising a peremptory

challenge. Jd. at 549-552. Relying on Section 2111 of

Title 28 and Federal Rule of Civil Procedure 61—a civil

analogue to Rule 52(a)—the Court concluded that re-

versal would not be justified unless a correct response

by the juror “would have provided a valid basis for a

challenge for cause.” 464 U.S. at 556. The Court

recognized the importance of a full response on voir

dire to the intelligent exercise of peremptory chal-

lenges: “hints of bias not sufficient to warrant challenge

for cause may assist parties in exercising their

peremptory challenges.” Jd. at 554. But it concluded

that “(t]he harmless-error rules adopted by this Court

and Congress embody the principle that courts should

exercise judgment in preference to the automatic re-

versal for ‘error’ and ignore errors that do not affect

the essential fairness of the trial.” Jd. at 553. Although

McDonough is a civil case, its underlying principle is

applicabie here as well. Notwithstanding the impor-

tance of the right to exercise peremptory challenges, an

impairment of that right does not warrant per se

32

reversal so long as the jury that actually sits is

“impartial.”

B. A Rule Of Automatic Reversal Is Justified By Neither

Precedent Nor Principle

In applying a rule of automatic reversal, the court of

appeals relied heavily on this Court’s statement in

Swain v. Alabama, 380 U.S. 202, 219 (1965) that a

“denial or impairment of the right [to exercise per-

emptory challenges] is reversible error without a

showing of prejudice.” See Pet. App. 9a-10a (quoting

that language from Swain); see also United States v.

Annigoni, 96 F.3d 1132, 1141 (9th Cir. 1996) (en banc)

(same). The quoted language in Swain, however, was

\! Several courts of appeals have held that an erroneous ruling

on a for-cause challenge is harmless error when the defendant uses

a peremptory challenge to “cure” that ruling, so long as the jury

that actually sat in the case was not biased. See, ¢.g., United States

v. Brooks, 161 F.3d 1240, 1245 (10th Cir. 1998) (failure to rule

correctly on for-cause challenge is harmless error where defendant

exercises peremptory strike on challenged juror and “has not al-

leged that any of the jurors actually seated were biased”), United

States v. Horsman, 114 F.3d 822, 825 (8th Cir. 1997) (failure to

strike for-cause not prejudicial error where defendant struck

venire member with peremptory challenge and failed to meet “the

burden of showing that the jury which did sit was biased”), cert.

denied, 522 U.S. 1053 (1998); United States v. Torres, 960 F.2d 226,

228 (ist Cir. 1992) (Breyer, C.J.) (defendant’s use of a peremptory

to excuse juror who should have been excused for cause is harm-

less error, where defendant did not use up all peremptory chal-

lenges); but see, ¢.g., United States v. Broussard, 987 F.2d 215, 221

(5th Cir. 1993) (erroneous denial of a peremptory challenge under

Batson cannot be harmless error); United States v. Ricks, 776 F.2d

455, 461 (4th Cir. 1985) (right to peremptory of such significance

that denial or substantial impairment of the right constitutes per

se reversible error), cert. denied, 479 U.S. 1009 (1986).

33

unnecessary to the decision in that case.” As this Court

has noted, “it is to the holdings of our cases, rather than

their dicta, that we must attend.” Bennis v. Michigan,

516 U.S. 442, 450-451 (1996) (brackets omitted); United

States Nat’l Bank of Or. v. Independent Ins. Agents of

Am., Inc., 508 U.S. 439, 463 n.11 (1993) (finding that

language in a prior decision “is obviously not controll-

ing, coming as it did in an opinion that did not present

the question we decide in these cases”).

Not only is the statement in Swuin dictum, but the

authorities on which the Court relied do not provide

controlling doctrine today. Swain relied on a series of

early decisions from this Court reversing judgments,

including criminal convictions, on the basis of errors im-

pairing defendants’ exercise of their peremptory chal-

lenges. 380 U.S. at 219 (citing Harrison v. United

States, 163 U.S. 140, 142 (1896); Gulf, Colorado & Santa

Fe Ry. v. Shane, 157 U.S. 348, 351 (1895); Lewis v.

United States, 146 U.S. 370, 376 (1892))." Those cases,

2 The relevant holding of Swain was that the Constitution

does not require “an examination of the prosecutor’s reasons for

the exercise of his [peremptory] challenges in any given case” to

determine whether the prosecutor had the impermissible purpose

to remove black jurors on the basis of their race. 380 U.S. at 222.

That holding was overruled by Batson v. Kentucky, 476 U.S. 79

(1986), in which the Court held that a prosecutor’s purposeful

discrimination on the basis of race in the exercise of peremptory

challenges violates the Equal Protection Clause. See id. at 92-93

(rejecting Swain standards). Because Swain did not address any

claim that a defendant had been denied a peremptory challenge

right, the statement from Swain quoted in text (380 U.S. at 219)

was dictum.

8 In Harrison, the applicable statute required that the de-

fendant be granted ten peremptory challenges, but he was granted

only three. 163 U.S. at 141. In Shane, the statute required that a

venire of 18 jurors qualified for cause be presented to the parties

34

however, were “decided long before the adoption of

Federal Rule[{] of Criminal Procedure * * * 52, and

prior to the enactment of the harmless-error statute, 28

U.S.C. § 2111.” Lane, 474 U.S. at 444. In Lane, this

Court declined to follow an early case holding that mis-

joinder of charges requires automatic reversal. bid.

(noting that per se reversal approach of McElroy v.

United States, 164 U.S. 76 (1896), did not survive later

statutory harmless-error provisions). Similarly in this

case, judicial rules generated in an era when trial error

was presumptively reversible and reviewing courts

were called “citadels of technicality,” Kotteakos v.

United States, 328 U.S. 750, 759 (1946), are no longer

authoritative.

Tiere is no basis for retaining the automatic-reversal

rule as a matter of principle. It is undoubtedly true, as

the Ninth Circuit has observed, that, “unlike typical

trial errors, [an error involving a peremptory challenge

does] not ‘occur{] during the presentation of the case to

the jury’”; thus, it “may not be ‘quantitatively assessed

in the context of other evidence presented in order to

determine whether its admission was harmless beyond

a reasonable doubt.’” United States v. Annigoni, 96

F.3d at 1144 (quoting Arizona v. Fulminante, 499 U.S.

at 308) (emphasis omitted). But those observations

underscore the reason why errors that impair the ex-

ercise of peremptory challenges are intrinsically less

threatening to a defendant’s rights than, for example,

for peremptory strikes, but the panel presented had only 12 jurors.

157 U.S. at 350-351. In Lewis, the trial court denied the defendant

the right to be brought face-to-face with the venire before or dur-

ing the exercise of peremptory challenges and thereby deprived

him of information from which the challenges could be made. 146

U.S. at 375-376. In each case, the Court reversed without inquir-

ing into whether there was any case-specific prejudice.

35

admission of a coerced confession, Fulminante, supra,

or omission of an element from the jury instructions,

Neder, supra. The impairment of a peremptory chal-

lenge restricts the defendant’s “arbitrary and capri-

cious” right to say that a juror will not sit, 4 William

Blackstone, Commentaries *353, but it has no effect on

the trial record or on the issues presented to the jury.

The absence of those consequences is a reason to find a

lack of prejudice to the defendant’s fair trial rights, not

to presume prejudice in all cases.

A defendant whose right to exercise peremptory

challenges is impaired may suffer an injury to the

intangible values sometimes said to be furthered by the

challenge. See Swain, 380 U.S. at 219 (the right of

peremptory challenge functions “to assure the parties

that the jurors before whom they try the case will

decide on the basis of the evidence placed before them,

and not otherwise”). But a defendant’s subjective belief

that a particular juror, though properly qualified as

impartial, may in fact be less favorable to him than

another juror, is not a sufficient reason to overturn the

results of an otherwise fair trial. Cf. Rosales-Lopez v.

United States, 451 U.S. 182, 188, 191-192 (1981) (plural-

ity opinion) (requiring, as a matter of supervisory

authority over the federal courts, inquiry on voir dire

into possible racial prejudice of jurors at the de-

fendant’s request, where the defendant and the victim

are members of different racial or ethnic groups, in

order to facilitate exercise of for-cause and peremptory

challenges; but concluding that no reversible error

occurs unless there was a “reasonable possibility” that

racial or ethnic prejudice influenced the jury). Retrials

are not cost-free for society, witnesses, or victims. And

“(p)assage of time, erosion of memory, and dispersion of

witnesses may render retrial difficult, even impossible.”

36

Engle, 456 U.S. at 127-128. Those factors strongly

counsel against upsetting the original verdict absent a

denial of the fundamental elements of a fair trial or

concrete prejudice to the defense. As tle Court noted:

These societal costs of reversal and retrial are an

acceptable and often necessary consequence when

an error in the first proceeding has deprived a

defendant of a fair determination of the issue of guilt

or innocence. But the balance of interest tips

decidedly the other way when an error has had no

effect on the outcome of the trial.

United States v. Mechanik, 475 U.S. 66, 72 (1986). A

rule of automatic reversal thus bears a heavy burden of

justification. See United States v. Hasting, 461 U.S.

499, 509 (1983). The possible discomfort to the de-

fendant resulting from the impairment of his rule-based

peremptory challenges does not meet that test. Cf.

Morris v. Slappy, 461 U.S. 1, 13-14 & n.6 (1983) (consti-

tutional right to counsel does not guarantee a defendant

“rapport with his attorney” or a “‘meaningful’ attorney-

client relationship”).

The costs of a rule of automatic reversal are mag-

nified by the inevitability of errors in jury selection that

may impair a defendant’s intelligent exercise of his

challenges. Jury selection is often fast-paced and con-

ducted under pressure. A trial judge has complex re-

sponsibilities: the judge must ensure that parties have

an adequate basis for making challenges, that claims of

error (including allegations of discrimination in the use

of peremptory challenges) are adjudicated promptly

and fairly, and that impartial jurors are empaneled. If

the selection is conducted properly, voir dire will flush

out relevant information; jurors who are unqualified,

biased, or incapable of following the law will be ex-

37

cused; and parties will exercise their peremptory chal-

lenges for whatever non-discriminatory reasons they

may have. But experience shows that, despite the

diligence of trial judges, jury selection will also produce

a significant number of errors that, in retrospect,

impair or deny the defendant’s peremptory challenges.

Given that reality, a rule of automatic reversal in every

case is too high a price to pay."

C. The Record Does Not Demonstrate Prejudice From

Any Impairment Of Respondent's Peremptory Chal-

lenge Rights

Finally, even on the assumption <hat some impair-

ments of the peremptory challenge right might warrant

reversal notwithstanding the empaneling of a fair and

impartial jury, the record in this case demonstrates

that there was no violation of respondent’s “substantial

rights.” At most, respondent was deprived of one of the

ten peremptory challenges that he and his co-defendant

might have used to select the initial 12-person jury.

i As noted above (note 6, supra), if the improper denial or im-

pairment of a peremptory results in the seating of a juror who

should have been excused for cause, sufficient prejudice is shown

to justify reversal. There is no claim of that character here. In

Ross this Court noted that “[nJo claim is made here that the trial

court repeatedly and deliberately misapplied the law in order to

force [the defendant) to use his peremptory challenges to correct

these errors [in ruling on for-cause strikes}.” 487 U.S. at 91 n.5.

Similarly, no claim is made in this case that the trial judge

intentionally and repeatedly erred in denying for-cause challenges

to compel respondent to use peremptory challenges to cure those

errors. Accordingly, no question is presented here whether such

an error might constitute prejudice warranting reversal. Nor is

any question presented here whether, even if reversal were not

justified in that setting, interlocutory appellate relief might be

available to remedy the court’s error.

38

Fed. R. Crim. P. 24(b) and (c) (defense is entitled to ten

strikes to select trial jurors in a felony case and to one

strike to select one or two alternate jurors). Even if

respondent’s strike of the one juror who should have

been excused for cause is considered to have been

“wasted,” the defense still had a considerable opportun-

ity to participate in jury selection through the exercise

of peremptory challenges and did not suffer a sub-

stantial impairment of that right.

Moreover, the record affords no basis for concluding

that the jury that ultimately decided this case would

have been different even if the court had excused

Gilbert for cause. Respondent never indicated to the

district court that he was dissatisfied with the 12-

person jury selected through the exercise of his initial

nine peremptory strikes. Nor did respondent voice an

objection to any of the jurors actually selected or indi-

cate that, if he had been granted another peremptory

challenge in selecting the original 12-juror panel, he

would have excused another juror.”

6 When juror Finck failed to appear as a member of the 12-

person jury after the jury was selected, respondent did request

that another strike be granted to each side to select a new juror

who would leapfrog the alternate, Riley, and directly replace Finck

on the 12-person panel. J.A. 185. Respondent offered that sug-

gestion to permit the possibility that an Hispanic juror, Olivas,

would be placed on the 12-person jury. Ibid. That request for a

peremptory challenge, however, cannot do service for a claim that

an originally selected trial juror would have been removed but for

the strike “wasted” to remove juror Gilbert. Even if it could, that

belated request for an additional peremptory challenge could not

form the basis for a claim of prejudice. Respondent’s desired use

of the additional peremptory was not to remove an objectionable

juror but to enhance the possibility of placing an Hispanic on the

jury. Peremptory challenges, however, are not a means of select-

ing particular trial jurors, but of rejecting them. See United States

At a bare minimum, a showing of prejudice should

require “some objection from the defendant after the

exhaustion of his peremptory challenges.” Frank v.

United States, 42 F .2d 623, 631 (9th Cir. 1930). See also,

e.g., id. at 630-631 (citing numerous state cases); Trotter

v. State, 576 So.2d 691, 692-693 (Fla. 1990); Turro v.

State, 950 S.W.2d 390, 406 (Tex. App. 1997, pet. ref’d);

People v. Schafer, 119 P. 920, 921 (Cal. 1911) (“It is

entirely consistent with the record that the 12 jurors

who actually tried the case were absolutely satisfactory

to defendant, and that he desired all of them to serve,

and would not have excused any one of them if he had

been given the opportunity. After judgment, the con-

trary should not be presumed.”). A requirement for a

defendant to lodge some objection to the panel as

selected is especially appropriate under Rule 24 in a

case involving multiple defendants, because the district

court is granted discretion by Rule 24(b) to grant addi-

tional peremptory challenges. Cf. Lewis v. United

States, 146 U.S. at 378-379 (“It does not appear in the

present case that the prisoner made any demand to

challenge any of the jury beyond the twenty allowed by

the Revised Statutes.”). Accordingly, assuming that,

despite the empaneling of a fair and impartial jury, an

impairment of a defendant’s right to exercise per-

emptory challenges might be found in some case to

have affected his “substantial rights,” a defendant

v. Marchant, 25 U.S. (12 Wheat.) at 482 (“The right, therefore, of

challenge, does not necessarily draw after it the right of selection,

but merely of exclusion. It enables the prisoner to say who shall

not try him; but not to say who shall be the particular jurors to try

him.”). And to the extent that respondent specifically intended to

exercise his challenge against a non-Hispanic on the basis of

ethnicity, the challenge would appear to violate equal protection

principles. Cf. Hernandez v. New York, 500 U.S. 352 (1991).

40

should at least have to indicate on the record during

jury selection that he would have used a peremptory

challenge in a specific manner. Because the present

record contains no such indication, any error in jury

selection should not result in reversal of respondent’s

conviction.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor G

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

DAVID C. FREDERICK

Assistant to the Solicitor

General

RICHARD A. FRIEDMAN

Attorney

AUGUST 1999

APPENDIX A

1. Section 2111 of Title 28 of the United States Code

provides:

§ 2111. Harmless error

On the hearing of any appeal or writ of certiorari in

any case, the court shall give judgment after an ex-

amination of the record without regard to errors or

defects which do not affect the substantial rights of the

parties.

2. Rule 24 of the Federal Rules of Criminal Pro-

cedure provides:

Rule 24. Trial Jurors

(a) Examination. The court may permit the defen-

dant or the defendant’s attorney and the attorney for

the government to conduct the examination of prospec-

tive jurors or may itself conduct the examination. In

the latter event the court shall permit the defendant or

the defendant’s attorney and the attorney for the gov-

ernment to supplement the examination by such fur-

ther inquiry as it deems proper or shall itself submit to

the prospective jurors such additional questions by the

parties or their attorneys as it deems proper.

(b) Peremptory Challenges. If the offense charged

is punishable by death, each side is entitled to 20 per-

emptory challenges. If the offense charged is punish-

able by imprisonment for more than one year, the

government is entitled to 6 peremptory challenges and

(la)

2a

the defendant or defendants jointly to 10 peremptory

challenges. If the offense charged is punishable by

imprisonment for not more than one year or by fine or

both, each side is entitled to 3 peremptory challenges. If

there is more than one defendant, the court may allow

the defendants additional peremptory challenges and

permit them to be exercised separately or jointly.

(c) Alternate Jurors. The court may direct that

not more than 6 jurors in addition to the regular jury be

called and impanelled to sit as alternate jurors. Alter-

nate jurors in the order in which they are called shall

replace jurors who, prior to the time the jury retires to

consider its verdict, become or are found to be unable

or disqualified to perform their duties. Alternate jurors

shall be drawn in the same manner, shall have the same

qualifications, shall be subject to the same examination

and challenges, shall take the same oath and shall have

the same functions, powers, facilities and privileges as

the regular jurors. An alternate juror who does not

replace a regular juror shall be discharged after the

jury retires to consider its verdict. Each side is entitled

to 1 peremptory challenge in addition to those other-

wise allowed by law if 1 or 2 alternate jurors are to be

impanelled, 2 peremptory challenges if 3 or 4 alternate

jurors are to be impanelled, and 3 peremptory chal-

lenges if 5 or 6 alternate jurors are to be impanelled.

The additional peremptory challenges may be used

against an alternate juror only, and the other peremp-

tory challenges allowed by these rules may not be used

against an alternate juror.

3a

3. Rule 52 of the Federal Rules of Criminal Pro-

cedure provides:

Rule 52. Harmless Error and Plain Error

(a) Harmless Error. Any error, defect, irregular-

ity or variance which does not affect substantial rights

shall be disregarded.

(b) Plain Error. Plain errors or defects affecting

substantial rights may be noticed although they were

not brought to the attention of the court.

da

APPENDIX B

STATES THAT DECLINE TO TREAT AN ERRONEOUS

DENIAL OF CHALLENGE FOR CAUSE AS REVER-

SIBLE ERROR WHEN THE CONTESTED JUROR WAS

REMOVED BY DEFENDANT'S USE OF PEREMPTORY

CHALLENGE

Pickens v. State, 783 S.W.2d 341, 345 (Ark.), cert.

denied, 497 U.S. 1011 (1990)

People v. Samayoa, 938 P.2d 2, 20 (Cal. 1997), cert.

denied, 522 U.S. 1125 (1998)

State v. Pelletier, 552 A.2d 805, 810 (Conn. 1989)

Dawson v. State, 581 A.2d 1078, 1093-1096 (Del. 1990),

vacated on other grounds, 503 U.S. 159 (1992)

Sams v. United States, 721 A.2d 945, 951 (D.C. 1998),

petition for cert. pending, No. 98-8712 (filed Mar. 10,

1999)

Trotter v. State, 576 So.2d 691, 693 (Fla. 1990)

State v. Ramos, 808 P.2d 1313, 1315 (Idaho 1991)

People v. Robinson, 701 N.E.2d 231, 241 (Ill. App. Ct.

1998)

Woolston v. State, 453 N.E.2d 965, 968 (Ind. 1983)

State v. Newendorf, 509 N.W.2d 743, 747 (lowa 1993)

State v. Crawford, 872 P.2d 293, 297-298 (Kan. 1994)

People v. Lee, 537 N.W.2d 233, 243 (Mich. Ct. App.

1995), appeal denied, 587 N.W.2d 233 (Mich. 1996)

State v. Barlow, 541 N.W.2d 309, 312 (Minn. 1995)

Chisolm v. State, 529 So.2d 635, 639 (Miss. 1988)

State v. Deck, No. 80821, 1999 WL 383067, at *9 (Mo.

June 1, 1999) (by statutory command, see Mo. Ann.

Stat. § 494.480.4 (West 1996))

Thompson v. State, 721 P.2d 1290, 1291 (Nev. 1986) (per

curiam)

5a

State v. DiFrisco, 645 A.2d 734, 751-754 (N.J. 1994),

cert. denied, 516 U.S. 1129 (1996)

State v. Tranby, 437 N.W.2d 817, 824 (N.D.), cert.

denied, 493 U.S. 841 (1989)

State v. Broom, 533 N.E.2d 682, 695 (Ohio 1988), cert.

denied, 490 U.S. 1075 (1989)

Ross v. Oklahoma, 487 U.S. 81, 90 (1988)

State v. Barone, 969 P.2d 1013, 1018-1019 (Or. 1998),

petition for cert. pending, No. 98-8406 (filed Mar. 10,

1999)

State v. Barnville, 445 A.2d 298, 301 (R.I1. 1982)

State v. Green, 392 S.E.2d 157, 159-160 (S.C.), cert.

denied, 498 U.S. 881 (1990)

State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993), cert.

denied, 510 U.S. 1215 (1994)

Adanandus v. State, 866 S.W.2d 210, 220 (Tex. Crim.

App. 1993), cert. denied, 510 U.S. 1215 (1994)

State v. Baker, 935 P.2d 503, 506 (Utah 1997)

STATES THAT TREAT AN ERRONEOUS DENIAL OF

CHALLENGE FOR CAUSE AS REVERSIBLE ERROR

EVEN THOUGH CONTESTED JUROR WAS REMOVED

BY DEFENDANT’S USE OF PEREMPTORY CHAL-

LENGE

State v. Huerta, 855 P.2d 776,781 (Ariz. 1993)

People v. Macrander, 828 P.2d 234, 244-246 (Colo. 1992)

State v. Kauhi, 948 P.2d 1036, 1041 (Haw. 1997)

Thomas v. Commonwealth, 864 S.W.2d 252, 259-260

(Ky. 1993), cert. denied, 510 U.S. 1177 (1994)

State v. Cross, 658 So.2d 683, 687-688 (La. 1995)

Booze v. State, 698 A.2d 1087, 1097 (Md. 1997)

Commonwealth v. Auguste, 605 N.E.2d 819, 823 (Mass.

1992)

State v. DeVore, 972 P.2d 816, 824 (Mont. 1998)

6a

Fuson v. State, 735 P.2d 1138, 1140 (N.M. 1987)

State v. Etzkorn, 552 N.W.2d 824, 829 (S.D. 1996)

State v. McQuesten, 559 A.2d 685, 686 (Vt. 1989)

Scott v. Commonwealth, 339 S.E.2d 899, 900 (Va. Ct.

App. 1986), aff’d, 353 S.E.2d 460 (Va. 1987)

State v. Phillips, 461 S.E.2d 75, 94 (W. Va. 1995)

State v. Ramos, 564 N.W.2d 328, 334 (Wis. 1997)

Munoz v. State, 849 P.2d 1299, 1302 (Wyo. 1993)