# Opposition Brief — United States v. Messino > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1352%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 937 ## Text 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