Opposition Brief — United States v. Messino

Supreme Coust, U.S

No. 97-1641

In The

Supreme Court of the United States

October Term, 1997

¢

UNITED STATES OF AMERICA,

Petitioner,

PAUL MESSINO, ET AL.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

+

loserH R. Lopez

53 W. jackson Blvd.

Chicago, IL 60604

(312) 853-3566

Attorney for Respondent

Paul Messino

GeRARDO S. GUTIERREZ

53 W. Jackson Bivd.

Chicago, IL 60604

(312) 251-1115

Attorney for Respondent

Chris B. Messino

Marc WituiaM Martin

Counsel of Record

53 W. Jackson Blvd.,

Suite 1420

Chicago, IL 60604

(312) 726-9015

Attorney for Respondent

Christopher Richard Messino

Douctas P. ROLLER

321 S. Plymouth Ct.,

Suite 950

Chicago, IL 60604

(312) 337-6368

Attorney for Respondent

Clement Messino

LE LAW BRIEF PRINTING CO. (800) 225-6964

R CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Should this Honorable Court deny certiorari to

review the Seventh Circuit’s decision reversing the

respondent's convictions because the district court failed

to provide adequate notice of jury selection procedures,

necessary for the intelligent exercise of peremptory chal-

lenges, when the issue of inadequate notice of jury selec-

tion procedures arises infrequently, is fact-intensive and

the courts of appeal that have encountered this particular

issue have uniformly reversed, thereby negating the

claim of a circuit split?

TABLE OF CONTENTS

Page

CEPR AEe FRO EES 60's. 6nd db ce duamseeisiasbnne i

pr 8 es: Re ene Orr pen re ii

pes 6 ge es tf ere rer re iii

SEAR Ee GOP EEE GRE se 6 oo kine dds ep evcicseses 1

REASONS FOR DENYING THE WRIT............. 13

CRP IOS ois iis bedenccedckaseucdseasss base 25

ae

:

:

ili

TABLE OF AUTHORITIES

Page

Arizona v. Fulminante, 499 U.S. 279 (1991) ........ 18, 22

Ballard v. United States, 329 U.S. 187 (1946).......... 19

Bank of Nova Scotia v. United States, 487 U.S. 250

OARS SIE SoU STS pee natty ae Re er tee ee 19, 21

Batson v. Kentucky, 476 U.S. 79 (1986) ....12, 16, 17, 18, 22

Brecht v. Abrahamson, 507 U.S. 619 (1993)......... 18, 19

Carr v. Watts, 597 F.2d 830 (2nd Cir. 1997) .......... 21

Chapman v. California, 386 U.S. 18 (1967) ............ 18

Connecticut v. Johnson, 460 U.S. 73 (1983)............ 24

Getter v. Wal-Mart Stores, 66 F.3d 1119 (10th Cir.

Gomez v. United States, 490 U.S. 858 (1989) ...18, 19, 21

Gulf, Colorado & Santa Fe Railway Co. v. Shane, 157

8 RBS a ee pee rede re Pe

Harrison v. United States, 163 U.S. 140 (1896) ........ 18

Holland v. Illinois, 493 U.S. 474 (1990) ............... 22

Johnson v. United States, 117 S.Ct. 1544 (1994)........ 21

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

St PEW ais 6 Wasa Wo ba a GhAa 6 ima Roca aeawes 18, 20

Knox v. Collins, 928 F.2d 657 (5th Cir. 1991) ......... 20

Lewis v. United States, 146 U.S. 370 (1892)........... 18

iv

TABLE OF AUTHORITIES - Continued

Page

McDonough Power Equipment, Inc. v. Greenwood,

PG 0st OU EE TED sb bb Sodas 3c Co taeda ee cin eae 23

Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908

Pate SOS AFUE Mir TE ip 0 hawks Ka ve caebaes 11

Pointer v. United States, 151 U.S. 396 (1894).......... 22

Rosales-Lopez v. United States, 451 U.S. 182 (1981).... 22

Rose: o. CARre, S75 US. Be CRs cies eve ck b a he ance 18

Ross v. Oklahoma, 487 U.S. 81 (1988)................. 15

Sullivan v. Louisiana, 508 U.S. 275 (1993)............. 18

Swain v. Alabama, 380 U.S. 202 (1965) ............ 11, 18

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

gg Mere ieee ct N eRe as eee ee A NER Tuk ONA 18, 20

United States v. Bentley-Smith, 2 F.3d 1368 (5th Cir

ec) eT ee ee ey rey erie a eT nr Cerise 18

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

1993), abrogated on other grounds by J.E.B. v. Ala-

pas, Sis Ui. Bae Ce 5k a os cerca een awe canes 20

United States v. Bryant, 991 F.2d 171 (5th Cir. 1993) .... 15

United States v. Dennis, 737 F.2d 617 (7th Cir. 1984) .... 15

United States v. Farmer, 923 F.2d 1557 sceoesh Cir.

gt SP ee ere er Ce ry They ee fe oy ee eee re gee 15

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

SOF os oe 55 Fh Aas bio EER A Re er a aes 14

United States v. Johnson, 584 F.2d 148 (6th Cir. 1978) .... 21

a eet enema Batt OER

Sac REPRE ORFS ATTRIB rENE on

on ee ees

TABLE OF AUTHORITIES - Continued

Page

United States v. Love, 134 F.3d 595 (4th Cir. 1998) ....15

United States v. McIntyre, 997 F.2d 687 (10th Cir.

SOPRA GS are Cod ene ies wages us Cys 4 ie bso kuSe beg eae 14

United States v. Olano, 507 U.S. 725 (1993)....22, 23, 25

United States v. Ricks, 776 F.2d 455 (4th Cir. 1985),

amended on rehearing en banc, 802 F.2d 731 (1986)

ERE ee TEC eC CE Ee PEC PC ey 10, 14, 16

United States v. Rubin, 327 F.3d 49 (2nd Cir. 1994)....14

United States v. Rucker, 557 F.2d 1046 (4th Cir. 1977) .... 21

United States v. Ruuska, 883 F.2d 262 (3rd Cir.

55 GN a ae ese a oad as 18, 20

United States v. Sams, 470 F.2d 751 (5th Cir. 1972)...14, 16

United States v. Schneider, 111 F.3d 197 (1st Cir.

EDGE eae NG a EA Gh Da aE TO ONES ERK ESR EU REREE RS LTE TE 20

United States v. Taylor, 92 F.3d 1313 (2nd Cir. 1996) .... 20

United States v. Turner, 558 F.2d 535 (9th Cir. 1977) 14, 16

United States v. Underwood, 122 F.3d 389 (7th Cir.

SPN ero dVa ease eu b avian lec akstees baeeenen ss passim

United States v. Underwood, 130 F.3d 1225 (7th Cir.

SE ag caw ksenkcce ince 18S s kee ees be knee 13, 16

United States v. Widgery, 778 F.2d 325 (7th Cir.

PN ks Shere ha VES eA RAAT owes CORR CSRS 15

United States v. Young, 470 U.S. 1 (1985)............. 24

Vasquez v. Hillery, 474 U.S. 254 (1986) ............... 19

vi

TABLE OF AUTHORITIES - Continued

Page

STATUTES

a RP BREE oh ds hoy ak kes ek 18, 22, 23, 24

OTHER AUTHORITIES

Federal Rules of Criminal Procedure

ee a Cie eck ee Oe ee eA 18,22; 23, 24

United States Constitution

| RINNE Pn oa ee ark CRM LS oe RNa Es 23

Cae - Pa Se i ae Rs i ak ok 23

STATEMENT OF THE CASE

1. “[U]nique facts” arose during jury selection. See

United States v. Underwood, 122 F.3d 389, 398 (7th Cir.

1997) (Flaum, J., concurring); Petition for Writ of Cer-

tiorari (“Pet.”) App. 23a. The resporidents’ trial attorneys

were materially misled as a result of the district judge’s

“unique procedural protocol during selection,” and his

unintentional but misleading description of the jury

selection process. Underwood, 122 F.3d at 397; Pet. App.

19a. Defense counsels’ misunderstanding — found to be

reasonable by the Seventh Circuit - precluded the know-

ing and intelligent exercise of peremptory challenges. The

jury selection thus resulted in a trial lawyer’s worst

nightmare: being saddled with a jury different from the

one believed to have been picked.

In its certiorari petition, the government fails to

quote entirely, or describe adequately, the district judge’s

explanation of -his jury selection method. Before jury

selection, the following colloquy occurred:

THE COURT: What I do, we will go through

the questions. You can write your strikes on a

piece of paper and come back here. We will do

the strikes in chambers so that the jurors don’t

know which particular attorney struck which

particular jurors. My Clerk will go back out

there and simply read off their names, tell them

to pick up their cards, and tell them to report

back to the jury room.

MR. MARTIN [counsel for Christopher Richard

(“Dick”) Messino]: Do you put them-all in a

box?

THE COURT: What I am going to do is to put

them all in the box. Since I plan on four to six

alternates — is this case still going nine weeks?

MR. SCHNEIDER [AUSA]: Judge, I think eight

might be a nice number. Maybe a little more.

Once you get up that far, it is hard to project.

THE COURT: I think six alternates. I am going

to put them aH in the box. Since there are more

strikes than defendants, I assume that every-

body gets one, and then on the remaining three,

you can reach some type of agreement. We will

put 34 in the box in the first two rows. Then the first

18 that are left will be the jury, the fist [sic] 12 being

the jury, and the next 6 being the alternates.

MR. LOEB [counsel for Donald Southern]: We

will only strike once, since we have people left

over?

THE COURT: Yes. You are going to have peo-

ple left over. We will do it in the manner in

which they are called. Then let’s assume you

don’t use all of your strikes, for one reason or

another or the government doesn’t, there will be

people left over. So it will be on my Clerk’s list

as she calls them. /t will be the first 18. The first 12

will be the jury, and the next 6 the alternates, in the

manner in which they are called.

2/13 Tr. 10-11 (emphasis added).

After the venire entered the courtroom, the clerk

called 38 persons, who filled the jury box and pews in the

order called. 2-13 Tr. 24-25. Although not acknowledged

or discussed in the certiorari petition, the ensuing voir

dire was atypical due to the high number of potential

jurors who said that they could not be fair. In all, the

district court excused 27 venire persons for cause. See

2/13 Tr. 30-199.

Each time the court excused a prospective juror for

cause, another venire person was beckoned from outside

the original pool of 38. Upon a potential juror being

excused for cause, the already-seated potential jurors did

not move up a seat; nor did any replacement potential

juror take a seat at the end of the pool. Rather, the

replacement juror took the seat vacated by the excused

juror, and was immediately questioned by the court. 2/13

Tr. 30, 32, 57-58, 59-60, 61, 64, 65, 69-70, 77, 95, 101-102,

105-106, 116-117, 127, 128-129, 131, 135, 142, 144-45, 149,

154-55, 157-60, 162, 174, 177, 183 and 197-99.

When 38 venire persons had been questioned with-

out being excused for cause, the parties exercised

peremptory challenges.! 2/13 Tr. 206. After reciting the

names of venire persons challenged by each side, the

district court began announcing the composition of the

jury. 2/13 Tr. 206-07, 27-28. When the court named Pam-

ela Boucher —- a women who said during voir dire she was

against drugs, but thought she “would be okay,” 2/13 Tr.

187 -— as the ninth trial juror, a defense attorney inter-

rupted:

MR. LOEB: We have got her as an alternate

according to the way they are sitting now.

THE COURT: No, it is according to this list.

1 The district court rejected Dick Messino’s pretrial motion

requesting allotment of three peremptory challenges for each

trial defendant. R. 551. Therefore, the seven trial defendants

jointly exercised ten peremptory challenges for the petit jury

and two for the alternates.

2/13 Tr. 207. (The referenced list had not been distributed

or made available to counsel.)

Before the jury was sworn, and immediately after the

trial court finished naming the petit jurors, defense coun-

sel objected to the jury’s composition. See 2/13 Tr.

207-213; R. 795. Based upon the court's initial instructions

and the visual scenario created by replacement potential

jurors taking the seat of excused jurors and being imme-

diately questioned, all defense counsel believed that

replacement venire persons were just that, i.e., that they

assumed the position, for selection purposes, of the

excused venire person. 2/13 Tr. 207-13; R. 795. No defense

counsel understood otherwise; no defense counsel

thought that the replacement venire persons would take a

place after the surviving members of the initial pool of

38.2 Id.

The defense attorneys, however, were mistaken about

the manner in which the district court actually selected

the jury. It turned out that the replacement jurors moved

to the end of the pool instead of replacing the excused

prospective juror whose seat the replacement filled. The

Seventh Circuit described the misunderstanding as fol-

lows:

2 Potential juror Christine Miller failed to return on time

after lunch. Tr. 92. The district court initially suggested waiting

until she arrived. Tr. 92. Attorney Loeb proposed carrying on

with jury selection, stating that if she failed to come back, “you

can replace her with the next in line.” Tr. 92. The court asked

whether this was agreeable, and did not clarify the rank of

replacement jurors.

Underwood, 122 F.3d at 395; Pet. App. 13a-14a (emphasis

When the judge excused one of the 38 for cause,

the judge’s clerk would call the name of a

reserve juror as a replacement. Instead of cross-

ing out the name of the excused juror and filling

in the replacement juror’s name on his list, the

judge put the replacement juror’s name at the

end of his jury list. For example, when the judge

excused the second juror called, the first of the

38 jurors he excused, the judge called the name

of a replacement juror and asked the replace-

ment to take the vacated seat (the second seat in

the jury box). However, instead of putting the

replacement juror’s name second on his list,

which would have been consistent with where

he seated the replacement juror, he put the name

39th on his list, after the names of the first 38

jurors called. According to the defendant’s

(mis)understanding of the judge’s method, this

replacement juror would have been number 2 on

the judge’s list. Because so many potential jurors

were excused for cause, there was a large dis-

crepancy between the first twelve names on the

judge’s list, and the first twelve names defense

counsel thought would be on that list.

original).

3 The following illustrates the discrepancies between the

court’s and the respondents’ understanding of the ordering of

the 38 surviving venire members:

Ordering According

to Court's List

‘

Understanding

Sandra Lazar 1. Sandra Lazar

2. Manserrat Ramos 2. Gilberto Guevara*

Ordering According to Court's

Oral Instructions and Defense

As made known in the district court and accepted

on appeal. defense counsel exercised their peremptory

3. Randall E. Ekvall

4. Christine Miller

5. Walter Whitfield

6. Patricia Hargrave

7. Leon Scott

8. Dennis Tuholski

9. Donice Reeves

10. John Katalinich

11. Thomas McInerney

12. Robert Harris

13. Ann Devereaux

14. Jack Hareland

15. Nancy Bubula

16. Michelle Jansen

17. Alan Kanter

18. Pamela Boucher

19. Barbara Resnick

20. Gary Francisco

21. John Royer

22. Mohammad Suleman

23. Gilberto Guevara

24. Susan Edwards

25. Richard Kuhn

26. Maria Flores

27. Gwendolyn Johnson

28. Gertrude Burton

29. Luis Galvan

30. Michelle McCain

31. Delores Preber

32. Eileen Adler

33. Joseph Sinopoli

34. John Hollandsworth

35. Veronica Horak

36. Robin Strickland

37. Joyce Agins

38. Rose Migacz

* Bol

RL Sa SE RI Toe eT eT

38.

d = Replacement juror not among original pool of 38.

Manserrat Ramos

Randall F. Ekvall

Christine Miller

Walter Whitfield

Patricia Hargrave

Leon Scott

Dennis Tuholski

Susan Edwards

Richard Kuhn

Maria Flores

Gwendolyn Johnson

Gertrude Burton

Luis Galvan

Donice Reeves

John Katalinich

Michelle McCain

Thomas McInerney

Robert Harris

Delores Preber

Eileen Adler

Ann Devereaux

Joseph Sinopoli

John Hollandsworth

Veronica Horak

Jack Hareland

Nancy Bubula

Michelle Jansen

Robin Strickland

Alan Kanter

Joyce Agins

Pamela Boucher

Barbara Resnick

Gary Francisco

Rose Migacz

John Royer

Mohammad Suleman

challenges in accordance with their expectations and

beliefs regarding jury selection. The defense opted not to

employ peremptory challenges against certain venire per-

sons who were visually seated at the end of the surviving

pool of 38. 2/13 Tr. 207-12; R. 795. Defense counsel did

not make challenges they ordinarily would have, believ-

ing that the non-preferred venire persons would consti-

tute one of the six alternate jurors, or would not make it

to the petit jury, given the possibility of mutual strikes

(two occurred here) or the government not exercising all

its peremptory challenges. Id. In fact, some defense attor-

neys sought to use peremptory challenges to excuse

jurors toward the end of the pool, but were convinced

otherwise based upon the universal defense assumption

that the jurors at the end of the pool would not be on the

petit jury. 2/13 Tr. 209-10; R. 795.

Upon learning that the replacement jurors did not

replace previously excused jurors, but went to the end of

the line, defense counsel immediately voiced surprise,

dismay and objection. 2/13 Tr. 207-13. See Underwood, 122

F.3d at 394-95 n. 8; Pet. App. 1la-13a. Defense counsel

initially did not ask to redo the jury selection; rather, they

asked the court to assemble the jury in accordance with

their understanding. 2/13 Tr. 210-13. The court refused,

stating that the jury would be selected pursuant to a list

the court possessed. Id. Defense counsel, however, did

not have this list. 2/13 Tr. 209-11. After the court made it

clear that it would not constitute the jury in line with

defense expectations, motions for mistrial were made and

denied. 2/13 Tr. 212-13. Thus, contrary to the assertion in

the certiorari petition, Pet. at 7, a request to reorder the

jury was not the “sole request” of defense counsel.

The respondents’ misapprehension about the selec-

tion process resulted in a trial before an adjudicatory

body not of their knowing choosing. Aside from the

respondents’ overall jury selection choices being mate-

rially affected,* two jurors who decided the respondents’

fate, Pamela Boucher and Mohammad Suleman, were

identified as being objectionable when the jury selection

error emerged. 2/13 Tr. 209-10; Underwood, 122 F.3d at

395; Pet. App. 14a (“Relying on their erroneous belief

about the judge’s list, defense counsel opted not to chal-

lenge two particular potential jurors on the belief that

they were too far down the list to make it onto the petit

jury and if anything, would be mere alternates. These two

jurors, however, were among the first twelve on the

judge’s list, and sat as jurors at trial.”). Two other pro-

spective jurors, Delores Preber and Eileen Adler, who the

defense believed would be jurors based upon the order in

which they were questioned served as alternates.

2. Seven defendants went to trial. Three were

acquitted based upon the testimony of many of the same

witnesses who testified against the respondents. The four

+ Given the court’s questioning all possible potential jurors

before the exercise of strikes, the respondents necessarily

exercised their joint peremptory challenges with an eye toward

shaping the jury from the entire 38-member universe. The

ordering of potential jurors was, therefore, essential to the

knowing and intelligent exercise of strikes. Underwood, 122 F.3d

at 396-97 & id. at 399 (Flaum, J., concurring); Pet. App. 17a &

23a. Because the first juror excused for cause was the second one

questioned, and because so many potential jurors were excused

for cause, the error here permeated the entire selection process.

respondents were convicted. While the government con-

tends, that the conspirators acquired and resold “hun-

dreds of kilograms of cocaine,” see Pet. 3-4, the district

judge found the convicted defendants responsible for 80

kilograms. E.g., R. 907; 8/17 Tr. 5-9, 21-24.

At trial, the respondents disputed “whether the gov-

ernment met its burden to prove a single conspiracy

instead of multiple conspiracies,” an issue deemed

“close” by the Seventh Circuit, but undecided. Under-

wood, 122 F.3d at 391; Pet. App. 4a. In addition, Dick

Messino advanced a defense of withdrawal from the con-

spiracy before the onset of the statute of limitations.

Dick’s withdrawal defense derived support from a slew

of government witnesses. See United States v. Christopher

Richard Messino, No. 95-3052, Individual Brief at 4-7 (7th

Cir.).

3a. Reversing the convictions of the four respon-

dents, the Seventh Circuit panel, Judge Eschbach writing,

found that “the defendants’ rights to the intelligent use of

their peremptory strikes were impaired [since] [t]he

judge’s prefatory description of his method of jury order-

ing did not comport with the method he actually used.”

Id. at 391; Pet. App. 14a. The court determined defense

counsels’ interpretation of the judge’s prefatory remarks

° The certiorari petition notes that Dick Messino and

Clement Messino were at one time police officers. Pet. at 3.

Dick’s status as a police officer has little to do with this case.

While the charged conspiracy allegedly commenced in the early

1980’s, Dick was a patrolman for approximately one year in the

1960's. Tr. 3977, 4019-20.

10

— that the potential jurors would be ordered in the man-

ner in which they were seated — to be reasonable, and

“bolstered by the visual impact of the order in which the

jurors were seated and questioned during voir dire.” Id.

at 395; Pet. App. 15a. The court rejected the government’s

contention that defense counsel were aware of the judge’s

selection method, labeling the argument as bordering on

“meretricious.” Underwood, 122 F.3d at 397; Pet. App. 18a.

The court ruled that the district court’s misleading

description “failed to provide adequate notice necessary

for the defendants to intelligently exercise their peremp-

tory challenges.” Id. at 396; Pet. App. 15a.

In reaching this conclusion, the court did not find the

judge’s jury selection method improper, as long as the

parties had adequate notice of the method used. Id. at

396; Pet. App. 16a. However, in the absence of notice, so

observed the court, the ability to exercise the statutory

right to peremptory challenges may be significantly

impaired, even if the defendants possess the full allot-

ment of challenges. Id. (citing United States v. Ricks, 776

F.2d 455 (4th Cir. 1985), amended on rehearing en banc, 802

F.2d 731 (1986).) The court illuminated how the error

hampered intelligent exercise of peremptory challenges:

Where, as here, a defendant is faced with more

objectionable jurors than he has peremptory

strikes, he must make intelligent use of those

strikes by considering strategic factors such as

the strength of his objection to a potential juror

and the likelihood that she will serve on the

petit jury instead of as a mere alternate (or not

at all) . . . The court’s misleading description

here caused defendants’ incorrect predictions of

the likelihood that each potential juror would be

11

the “first twelve” and thus sit on the petit jury.

Because defendants had inadequate notice of the

judge’s actual method of ordering potential

jurors, their strategic decisions based on a

juror’s likelihood of sitting on the petit jury

were completely subverted. When strategy takes

a back seat to chance in this manner, the result

can hardly be considered the intelligent exercise

of peremptory challenges to which a defendant

is entitled.

Underwood, 122 F.3d at 396-97; Pet. App. 17a (emphasis

original).

Noting that issues of entitlement to a particular type

of tribunal generally are not subject to harmless error

analysis, the court held that the error necessitated rever-

sal irrespective of prejudice. Id. at 392; Pet. App. 6a

(citing Swain v. Alabama, 380 U.S. 202, 219 (1965); Olympia

Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1369

(7th Cir. 1990).) Absent discerning a circuit split, the

panel joined other circuits that have considered a harm-

less error analysis inappropriate when the defendant's

statutory right to peremptory challenge was denied or

impaired. The court nonetheless recognized that “not all

restrictions on the right to peremptory challenge consti-

tute the denial or impairment of the right,” and shared

the concurring judge’s concerns about a vroad automatic

reversal rule. Underwood, 122 F.3d at 392 n. 3; Pet. App.

7a. To ameliorate against routine reversal, the panel pro-

posed employing a narrow definition of “denial or

impairment.” Id.

b. Ina concurring opinion, Judge Flaum questioned

Swain’s most sweeping rhetoric. Id. at 398; Pet. App. 23a.

12

Nonetheless, Judge Flaum believed reversal necessary

because the defendants were materially misled about the

jury selection procedure. Id. Judge Flaum observed that

the violation of Rule 24 of the Federal Rules of Criminal

Procedure was not merely technical, since, as Judge

Eschbach’s opinion demonstrated, the defendants had

inadequate notice of the jury selection method, thereby

subverting strategic jury selection choices. Id. at 398-99;

Pet. App. 22a-23a. Judge Flaum regarded it critical for the

defense to understand which peremptory strikes were

being exercised against whom. Id. at 399; Pet. App. 23a.

The concurring judge also understood that this case

did “not involve considerations that might warrant more

forgiving appellate treatment.” Id. Unlike the present

case, future claims regarding the denial of peremptory

challenges more likely would involve Batson v. Kentucky,

476 U.S. 79 (1986), situations. Underwood, 122 F.3d at 399

(Flaum, J., concurring); Pet. App. 24a-25a. Suggesting that

loss of a peremptory may not be the type of structural

defect that always necessitates reversal, Judge Flaum

found this case to be a tiger of a different stripe:

[Because it is notoriously difficult to estimate

the effect of a juror on the outcome of a trial,

questions of jury selection tend to defy harm-

less-error analysis. The prospect that the loss of

peremptory challenges will inevitably be con-

sidered harmless should cause a court to swal-

low hard before abandoning a rule of automatic

reversal. In the instant case, however, we face

no such dilemma. No countervailing constitu-

tional imperative led the district court to

impinge upon the defendants’ right to the <xer-

cise of their peremptories; there simply (and

PORE eT Sad LO

ee

13

unfortunately) was a critical miscommunication

between the bench and bar. Given the signifi-

cance of the error that occurred here and the

lack of any compelling reason to afford

expanded latitude to the trial court, this case does

not present an occasion to examine whether the

denial of peremptory challenges should ever be sub-

ject to harmless-error review.

Id. at 399; Pet. App. 25a-26a (emphasis added).

4. The government petitioned for rehearing, and

suggested rehearing en banc. While a vote of the active

members of the Seventh Circuit was requested, a majority

voted to deny rehearing en banc, and all of the judges on

the original panel voted to deny the petition for rehear-

ing. United States v. Underwood, 130 F.3d 1225 (7th Cir.

1997); Pet. App. 27a. Judge Easterbrook, joined by Chief

Judge Posner and Judges Manion and Evans, dissented

from the denial of rehearing en banc. Judge Easterbrook’s

dissenting opinion is discussed throughout the certiorari

petition.

REASONS FOR DENYING THE WRIT

1. In an effort to attain this Court’s certiorari juris-

diction, the government raises a circuit-split banner. The

cry of dissension, however, rests upon an chimerical

foundation. The issue before the Seventh Circuit was

whether the district court’s failure to provide accurate

notice of jury selection procedures, necessary for the

intelligent exercise of peremptory challenges, warranted

reversal. Courts of appeal that have confronted this issue

“—

14

have uniformly found reversal appropriate. See United

States v. Ricks, 776 F.2d 455, 458-61 (4th Cir. 1985) (nine

defense attorneys reasonably believed that the jury

would be selected from the top of a jury selection list and

concentrated their strikes there, but the court selected

jurors from below the top; reversal ordered since the

practical effect of defense counsels’ belief concerning jury

selection “was to frustrate the exercise of their peremp-

tory strikes”), amended on rehearing en banc, 802 F.2d 731

(1986); United States v. Turner, 558 F.2d 535 (9th Cir. 1977)

(reversal ordered where absent supplying the defendant

with adequate notice of the particular jury selection sys-

tem employed, the district court precluded the exercise of

a peremptory challenge on grounds that the defendant's

acceptance of a jury panel constituted use of a challenge);

United States v. Sams, 470 F.2d 751 (5th Cir. 1972) (in line

with local custom, defense counsel attempted to exercise

a back strike which a visiting judge prohibited; court of

appeals reversed for a new trial, finding that defense

counsel lacked notice of the jury selection system, and

that the court abused its discretion by impeding the exer-

cise of peremptory challenges when it refused to allow

back strikes).

The government does not present good reason to

disturb this unbroken line of precedent. Cases cited by

the government do not raise an authentic conflict. Indeed,

none involved a district court providing inadequate

notice of its jury selection method. United States v. Hors-

man, 114 F.3d 822, 825 (8th Cir. 1997), Getter v. Wal-Mart

Stores, 66 F.3d 1119, 1122 (10th Cir. 1995), United States v.

Rubin, 37 F.3d 49, 54 (2nd Cir. 1994), United States v.

McIntyre, 997 F.2d 687, 697-98 (10th Cir. 1993), United

———eSwm

15

States v. Bryant, 991 F.2d 171, 174 (5th Cir. 1993), and

United States v. Farmer, 923 F.2d 1557, 1566 & n. 20 (11th

Cir. 1991), all entailed appellants arguing that the district

court had erroneously failed to excuse a juror for cause,

thereby forcing use of a peremptory challenge. In none of

the cases did the questioned juror sit on the jury. From

the context of review of a state court conviction, Ross v.

Oklahoma, 487 U.S. 81 (1988), teaches that forcing use of a

peremptory challenge does not mandate reversal absent a

showing that the jurors who sat were biased. Obviously,

this case is not a Ross case, and the government does not

so contend in its certiorari petition (only citing Ross for

the proposition that peremptory challenges are not con-

stitutionally mandated). See Pet. at 16 n. 8.

The government also cites United States v. Love, 134

F.3d 595 (4th Cir. 1998), to support the existence of sup-

posed intra-circuit conflicts. See Pet. at 12 n. 5. However,

the Fourth Circuit in Love expressly addressed its prior

decision in Ricks and found it to be distinguishable since

the Love district judge “explained the jury selection pro-

cedure in accurate terms in advance of trial.” Love, 134

F.3d at 602 n. 2.

Nor did the Seventh Circuit’s decision here deviate

from prior Seventh Circuit cases, as claimed by the gov-

ernment. See Pet. at 11 n. 4. In United States v. Widgery,

778 F.2d 325 (7th Cir. 1985), the appellate court affirmed

where the trial judge had answered a jury question absent

conferring with the defense. (Widgery nevertheless recog-

nized that “[s]ometimes it is so difficult to tell whether

the violation of a rule has injured the defendant, and so

likely that the violation did, that the violation cannot be

harmless error.” Id. at 329.) In United States v. Dennis, 737

16

F.2d 617 (7th Cir. 1984), the defendant merely protested

the trial judge’s requiring defense counsel to confer about

the jury selection in the courtroom. Clearly, this case

presents radically different facts and legal issues.

As there is no bona fide inter-circuit or intra-circuit

conflict on the particular issue decided by the court

below, the petition for certiorari should be denied.

2. This case does not present an appropriate vehicle

to consider the question presented by the government.

Notwithstanding claims to the contrary, the particular

fact-specific issue here simply does not recurrently arise.

This Court can safely presume-that district judges ordi-

narily provide sufficient notice of jury selection pro-

cedures, and then select juries in accordance with their

explanations. The infrequency of the issue here is also

evident from the small number and wide temporal dis-

tance between cases in which inadequate notice of jury

selection procedures has arisen, i.e., Sams (1972), Turner

(1977), Ricks (1985) and Underwood (1997).

Additional reasons bode against a grant of certiorari.

The court of appeals did not act in gross deviation of

established precedent. Indeed, this is not a forced-use

case in which the court of appeals digressed from Ross.

Nor does this case implicate Batson concerns in which

reversal may be more debatable since the district court is

afforded some “margin of error.” See Underwood, 122 F.3d

at 399 (Flaum, J., concurring); Pet. App. 24a-26a (“this

case does not present an occasion to examine whether the

denial of peremptory challenges should ever be subject to

harmless-error review” since the error here was signifi-

cant, and not allayed by compelling reasons to give the

I ee GRO ine sete ter.

17

district court expanded latitude). Accepting the govern-

ment’s position here could actually jeopardize Batson and

its progeny since the rule that racially motivated peremp-

tory challenges require reversal could fall by the wayside

if all jury selection errors are branded “harmless.”

Both before the Seventh Circuit panel and in its peti-

tion for rehearing, the government vigorously argued

that no error occurred. The government has now aban-

doned the point. Under this Court’s Rule 14(1)(a), all

questions subsumed within the question presented are

fair game. Thus, while we steadfastly maintain that error

occurred, analysis of the question presented could require

this Court to embark upon a fact-resolution journey, par-

sing and interpreting the particular district judge’s oral

explanations of his jury selection method, and even

assessing the veracity and reasonableness of defense

counsel.® Such fact-specific inquiries typically are not the

function of this Court. Moreover, if this Court found that

no error occurred — a contention we resolutely dispute -

then the question framed by the government would not

© In the court of appeals, the government contended that

the district court’s statement “we will do it in the manner in

which they are called,” 2/13 Tr. 11, provided the defense with

notice of the jury selection procedure employed. Before this

Court, therefore, could be questions of whether defense counsel

acted unreasonably in failing to discern the actual jury selection

method based upon the quoted statement. This Court could also

have to consider whether the statement “we will do it in the

manner in which they are called” excluded the idea that

replacement prospective jurors would take a position at the end

of the pool, or eviscerated the district judge’s prior direction

that “the first 18 that are left [in the jury box] will be the jury.”

2/13 Tr. 10.

18

even be before the Court. For these reasons as well,

certiorari should be denied.

3a. The government argues that the Seventh Circuit

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

cedure and 28 U.S.C. § 2111. However, the court of

appeals adhered to the longstanding principle that

impairment of the peremptory challenge right is revers-

ible error without a showing of prejudice, a rule that has

roots in Swain v. Alabama, 380 U.S. 202, 219 (1965), Lewis v.

United States, 146 U.S. 370, 376-78 (1892), Harrison v.

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

Santa Fe Railway Co. v. Shane, 157 U.S. 348, 351 (1895), has

been held to endure Batson, see United States v. Annigoni,

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

Industries, Inc., 61 F.3d 147, 158 (3rd Cir. 1995), United

States v. Bentley-Smith, 2 F.3d 1368, 1375 n. 7 (5th Cir.

1993), United States v. Ruuska, 883 F.2d 262, 268 (3rd Cir.

1989), and is consistent with Gomez v. United States, 490

U.S. 858 (1989).

There is nothing incompatible between harmless

error analysis and the per se reversal rule employed in

this case. In Brecht v. Abrahamson, 507 U.S. 619 (1993), this

Court identified a “spectrum” between trial errors -

errors that occur during presentation of the case to the

jury and are amenable to harmless error analysis since

they may be quantitatively assessed in the context of

other evidence for outcome-determinative effect - and

“structural defects in the constitution of the trial mecha-

nism, which defy analysis by ‘harmless-error’ standards.”

See also Sullivan v. Louisiana, 508 U.S. 275 (1993); Arizona v.

Fulminante, 499 U.S. 279 (1991); Rose v. Clark, 478 U.S. 570,

578 (1986); Chapman v. California, 386 U.S. 18, 23 and n. 8

19

(1967). In the latter instance, Brecht approved the auto-

matic reversal remedy since such errors “infect the entire

trial process.” Brecht, 507 U.S. at 629-30.

Similarly, in Bank of Nova Scotia v. United States, 487

U.S. 250 (1988), this Court recognized that there are a

class of cases that do not require “a particular assessment

of the prejudicial impact of the errors . . . because the

errors are deemed fundamental.” Id. at 256. As examples,

this Court cited Vasquez v. Hillery, 474 U.S. 254 (1986), and

Ballard v. United States, 329 U.S. 187 (1946), and reconciled

these cases by noting that “[t]he nature of the violation

allowed a presumption that the defendant was preju-

diced, and any inquiry into harmless error would have

required unguided speculation.” Nova Scotia, 487 U.S. at

257.

Or, as stated in Gomez v. United States, 490 U.S. 858

(1989), a case involving jury selection error:

The Government concedes, as it must, that

errors occurring during jury selection may be

grounds for reversal of a conviction . . . Yet it

argues that any error in these cases was harm-

less because petitioners allege no specific preju-

dice as a result of the Magistrate’s conducting

the voir dire examination . . . We find no merit

to this argument. Among those basic fair trial

rights that “ ‘can never be treated as harmless’ is

a defendant’s right to an impartial adjudicator,

be it judge or jury.”

Id. at 826.

20

In view of all this, there is nothing exceptional about

the idea that impairment of the right to intelligent exer-

cise of peremptory challenges, affecting the very compo-

sition and structure of the adjudicatory body, is

unamenable to harmless error analysis and presump-

tively prejudicial.? The Seventh Circuit’s decision to

reverse was not erroneous, and was within the main-

stream of the law.®

7 The following factors underscore this conclusion: the

consequences of jury selection error of the type here do not

occur during the evidentiary presentation of the case, but

manifest themselves as an ongoing feature of the trial; the error

is incapable of being quantitatively assessed in the context of

other evidence; the error does not lend itself to determining

whether the judgment was substantially swayed by it; there is

no measuring what effect the desired (but excluded) jurors

would have had on deliberations; and there is no telling how

unwanted jurors influenced deliberations. See Annigoni, 96 F.3d

at 1144-45.

8 See United States v. Schneider, 111 F.3d 197, 204 (1st Cir.

1997) (“In a number of cases involving interference with

peremptory challenges, the reviewing court has treated proof of

prejudice as unnecessary.”); United States v. Taylor, 92 F.3d 1313,

1325 (2nd Cir. 1996) (“Defendants correctly assert that if their

right to exercise peremptory challenges has been denied or

impaired, they need not show that the jury was biased in order

to obtain a new trial.”); Kirk v. Raymark Industries, Inc., 61 F.3d

147, 160 (3rd Cir. 1995) (“[A] showing of prejudice is not

required to reverse a verdict after demonstrating that a

statutorily-mandated, peremptory challenge was impaired.”);

United States v. Broussard, 987 F.2d 215, 221 (5th Cir. 1993),

abrogated on other grounds by J.E.B. v. Alabama, 511 U.S. 127 (1994)

(“The denial or impairment of the right to exercise peremptory

challenges is reversible error without a showing of prejudice.”);

Knox v. Collins, 928 F.2d 657, 661 (5th Cir. 1991) (same); Ruuska,

883 F.2d at 268 (“We read the long line of Supreme Court

os

21

Johnson v. United States, 117 S. Ct. 1544 (1994), does

not foreclose application of the rule that some errors, not

amenable to harmless error analysis, are presumptively

prejudicial. To be sure, Johnson observed that none of the

“structural” error cases cite? by the petitioner were direct

federal appeals. But this does not correlate into the prop-

osition that some cases do not require “a particular

assessment of the prejudicial impact of the errors

. . . because the errors are deemed fundamental.” Nova

Scotia, 487 U.S. at 256. Indeed, Gomez was a direct federal

appeal in which this Court ruled the jury selection error

presumptively prejudicial.

Moreover, johnson did not discard the “structural

error” concept. While not needing to decide the question,

Johnson seemingly harmonized structural error with

harmless error doctrine:

But even though the error be “plain,” it must

also “affec[t] substantial rights.” It is at this

point that petitioner’s argument that the failure

to submit an element of the offense to the jury is

authority that culminated in Swain to say that the denial or

impairment of the right to peremptory challenges is reversible

error per se.”); Carr v. Watts, 597 F.2d 830, 833 (2nd Cir. 1997)

(“In . . . circumstances of direct impairment... ‘[t]he denial or

impairment of the right is reversible error without a showing of

prejudice.’ ”); United States v. Johnson, 584 F.2d 148, 155 (6th Cir.

1978) (“A trial court commits reversible error if, by unduly

restricting voir dire, it substantially impairs the peremptory

challenge right.”); United States v. Rucker, 557 F.2d 1046, 1049

(4th Cir. 1977) (“A voir dire that has the effect of impairing the

defendant's ability to exercise intelligently his challenges is

ground for reversal, irrespective of prejudice.”).

22

“structural error” becomes relevant. She con-

tends in effect that if an error is so serious as to

defy harmless-error analysis, it must also

“affec([t] substantial rights.” A “structural”

error, we explained in Arizona v. Fulminante, is a

“defect affecting the framework within which

the trial proceeds, rather than simply an error in

the trial process itself.

117 S. Ct. at 1549.

With this in mind, the illusory nature of the govern-

ment’s argument that the Seventh Circuit improperly

ignored harmless error dogma becomes apparent. The

presumption of prejudice in the face of impairment of the

peremptory challenge right fits within the framework of

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

28 U.S.C. § 2111. Under these provisions, the government

must prove that the error did not affect substantial rights.

See United States v. Olano, 507 U.S. 725, 732-35 (1993).

“Impairment” of the exercise of a right obviously

“affects” the right. The question then becomes whether

the right to peremptory challenges is a “substantial

right.” This is easy; the right to peremptory challenge not

only implements the fair jury trial right, Holland v. Illinois,

493 U.S. 474, 482 (1990), Rosales-Lopez v. United States, 451

U.S. 182, 188 n. 6 (1981), but is also “one of the most

important rights secured to the accused.” Pointer v. United

States, 151 U.S. 396, 408 (1894). See also Batson, 476 U.S. at

98. As the right to peremptory challenge is a “substantial

right,” and because the error “affected” this right, the

ewer

23

error below was not harmless within meaning of Rule

52(a) and § 2111.9

b. The government attempts to show lack of harm

by looking solely to the effect of the inadequate notice

upon the jury’s composition. The government's hindsight

analysis, however, does not appreciate that the overall

exercise of peremptory challenges was tainted. Exaspe-

rated by the unusually high number of potential jurors

excused for cause, the respondents’ peremptory challenge

choices were neither knowing nor intelligent. The jury’s

structure was affected by more than two jurors who

would have been excused if defense counsel had been

aware of the trial court’s selection method. Indeed, the

government fails to address the fact that two potential

jurors, not challenged by the defense and believed to be

regular jurors, ultimately did not serve on the petit jury.

Harmless error analysis often implicates assessment

of the strength of the government's case. Cf. Olano, 507

U.S. at 734-35. But here the government makes no effort

to establish overwhelming proof. Given, as a general

9 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.

548 (1984), is not to the contrary. That case was a civil case which

did not implicate Rule 52 of the Federal Rules of Criminal

Procedure, or the constitutional concerns associated with the

Fifth and Sixth Amendment rights to a fair trial. Moreover,

McDonough did not raise the specter of a party’s entire jury

selection strategy being skewed by deficient notice of jury

selection procedures. Unlike this case, there was no claim in

McDonough that the district judge had failed to explain its

selection method adequately. Rather, a juror in McDonough had

given a mistaken but honest response to a question during voir

dire.

24

matter, the acquittal of three defendants notwithstanding

the testimony of many of the same witnesses who testi-

fied against the respondents, the admittedly “close” ques-

tion of whether the government proved single or multiple

conspiracies and Dick Messino’s withdrawal defense, the

lack of effect upon substantial rights cannot be gainsaid.

Additionally, the endeavor necessary to gauge harmless

error in a case of this sort necessitates a type of fact-

intensive inquiry that normally and wisely is not within

the purview of this Court’s responsibilities. See Connecti-

cut v. Johnson, 460 U.S. 73, 102 (1983) (Powell, J., dissent-

ing) (prejudice resulting from an error is

“[njormally . . . a question more appropriately left to the

courts below,” inter alia, because “[t]here may be facts

and circumstances not apparent from the record before

us”). See also United States v. Young, 470 U.S. 1, 30-31 n. 14

(1985) (Brennan, J., concurringin part and dissenting in

part) (citing cases where this Court did not engage in

narmless or plain error analysis but instead remanded).

The alternative is to say that jury selection error not

being easily amenable to harmless error inquiry renders

all such errors harmless. However, this is an invalid

reading of Rule 52 and § 2111, which by their plain terms

ask whether the error affected substantial rights. Rule 52

and § 2111 are not binary; neither speak in all or nothing

terms. Contrary to Judge Easterbrook’s dissent, a finding

of error in the jury selection process not only is “worth

investigation,” but must be investigated. Fortunately, the

Seventh Circuit opinion in this case, as well as Judge

Flaum’s concurrence, proposed a satisfactory middle

ground, i.e., that the per se reversal rule be rarely

invoked as a consequence of narrowly defining “denial or

ee ee rn eT

25

impairment” of the peremptory challenge right. See

Underwood, 122 F.3d at 392 n. 3; Pet. App. 7a. As the

composition of the jury in this case was materially altered

by the error, and since the error plainly fell within a

circumscribed definition of “impairment”, the Seventh

Circuit’s decision was sound, and need not be reviewed.

Cf. Olano, 507 U.S. at 745 (Stevens, J., dissenting) (“Cer-

tainly, the courts of appeals are better positioned than we

are to evaluate the need for firm enforcement of a pro-

cedural rule designed to protect the integrity of jury

deliberations and to weigh the interest in such enforce-

ment against other relevant considerations.”)

+

CONCLUSION

For the reasons stated above, the petition for cer-

tiorari should be denied.

JosepH R. Lopez

53 W. Jackson Blvd.

Chicago, IL 60604

(312) 853-3566

Attorney for Respondent

Paul Messino

GERARDO S. GUTIERREZ

53 W. Jackson Blvd.

Chicago, IL 60604

(312) 251-1115

Attorney for Respondent

Chris B. Messino

Respectfully Submitted,

Marc WiiuiAM MartIN

Counsel of Record

53 W. Jackson Blvd.,

Suite 1420

Chicago, IL 60604

(312) 726-9015

Attorney for Respondent

Christopher Richard Messino

Douc tas P. ROLLER

321 S. Plymouth Ct.,

Suite 950

Chicago, IL 60604

(312) 337-6368

Attorney for Respondent

Clement Messino