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No. 98-1255: United States v. Martinez-Salazar

No. 98-1255

In 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 convictionwhen he uses a peremptory challenge to remove a potential juror whom thedistrict court erroneously failed to remove for cause, and he ultimatelyexhausts his remaining peremptory challenges.




In the Supreme Court of the United States


No. 98-1255

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



OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-19a) is reported at 146F.3d 653.
JURISDICTION
The judgment of the court of appeals was entered on May 28, 1998. A petitionfor rehearing was denied on October 7, 1998 (Pet. App. 20a-21a). On January4, 1999, Justice O'Connor extended the time within which to file a petitionfor a writ of certiorari to and including February 4, 1999. The petitionwas filed on February 4, 1999, and was granted on June 21, 1999. The jurisdictionof this Court rests on 28 U.S.C. 1254(1).

STATUTE AND RULES INVOLVED
Section 2111 of Title 28 of the United States Code and Rules 24 and 52 ofthe Federal Rules of Criminal Procedure are reproduced in an appendix tothis brief.

STATEMENT

After a jury trial in the United States District Court for the Districtof Arizona, respondent Abel Martinez-Salazar was found guilty of conspiracyto possess heroin with intent to distribute it (21 U.S.C. 846), possessionof heroin with intent to distribute it (21 U.S.C. 841(a)(1)), and usingor 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 123months' imprisonment. J.A. 51. Respondent appealed, and the court of appealsfound an impairment of his right of peremptory challenges that, it held,"require[d] automatic reversal." Pet. App. 3a.

1. This case involves the jury selection for the joint trial of respondentand his co-defendant.1 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 schedulingconflicts that might interfere with a trial that would begin on Thursdayof that week and was expected to end on Monday of the following week. J.A.68-70. Three jurors mentioned possible conflicts: No. 4, Neal Sundeen, alawyer, advised the court that he had a trial beginning the next Monday(J.A. 70-71); No. 14, Edward Sink, an employee of Allied Signal Aerospace,told the court that he had just returned from a two-week vacation and afour-day business trip and was having a hard time keeping up with his workload(J.A. 71-72); and No. 15, Mary Smith, an English instructor at a communitycollege, stated that she was concerned about her ability to grade hundredsof papers at term's end (J.A. 72). The court took no immediate action onthose requests.
Next, the court asked each potential juror to recite information concerningmatters listed on a sheet of paper each juror was given, including his orher name, community of residence, employment, education, marital status,employment of spouse, military service, and prior jury service, includingthe outcome of any such cases. J.A. 72-89. The court then gave the venirea description 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 instructionsabout the conduct of a criminal case, including admonitions that the indictmentis not evidence, that the government bears the burden of proof beyond areasonable doubt, that defendants are presumed innocent, and that the jurywas to determine guilt or innocence based on the evidence and the law asexplained to it by the court. J.A. 92-97. The court asked whether any ofthe potential jurors "believe[d] that for whatever reason you simplywould not want to serve as a juror here, or don't think that you could servefairly and impartially as a juror in this case * * * ?" J.A. 97. Nojuror indicated any such impediment to serving. Ibid.
The court introduced the lawyers and the parties, and asked the potentialjurors whether any were acquainted with anyone involved in the case. J.A.97-99. The court then asked the venire a series of questions, includingwhether any of the potential jurors spoke Spanish (translators would beused for defendants); opposed incarceration as a punishment; knew any ofthe other potential jurors; had, or had family members with, present orpast government employment; had legal training; or had any hearing or otherphysical problem that might interfere with jury service. J.A. 99-110. Somejurors responded to some of these questions, but each assured the courtthat he or she would be able to serve fairly and impartially. Ibid. Thecourt again asked the venire whether anyone did not desire to serve, andno potential juror sought to be excused. J.A. 110.
The venire then took a recess during which the lawyers were asked to reviewthe questionnaires. The court reconvened, without the venire, for the lawyersto identify which potential jurors they wanted individually questioned.J.A. 112-113. Seventeen of the 45 potential jurors were identified for furtherquestioning. J.A. 113-120. The court questioned each in turn and permittedthe lawyers to ask any supplemental questions they wished. J.A. 119-159.
One of the potential jurors who was individually questioned, No. 31, DonGilbert, stated on his questionnaire that he "would favor the prosecution."J.A. 131-132. When asked about that by the judge, Gilbert clarified: "Ithink what I'm saying is all things being equal, I would probably tend tofavor the prosecution." J.A. 132. In response to a question by respondent'strial counsel, "where would you feel more comfortable erring, in favorof the prosecution or the defendant?," Gilbert stated: "I think,as I indicated on [the questionnaire], I would probably be more favorableto the prosecution. I suppose most people are. I mean they're predisposed.You assume that people are on trial because they did something wrong."J.A. 133. When reminded by the court of the earlier instruction on the presumptionof innocence, Gilbert responded, "I understand that in theory."J.A. 134.
At the conclusion of the individualized questioning, the court consultedwith counsel about those potential jurors who had asked to be excused forpersonal reasons. 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 objection to excusing Sink (No. 14), who had returnedfrom 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 JulieKolomitz (No. 20), a single parent who told the court during individualquestioning that it would be a hardship for her to serve, and she ultimatelywas excused. J.A. 156-158, 161, 169-170. The government was content to excuseSmith (No. 15), the teacher who was concerned about her workload, but defensecounsel 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 revealedduring 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. Defense counsel sought toexclude Gilbert (No. 31) for cause but the government opposed it. J.A. 162.The court observed that Gilbert said he could follow instructions, and thecourt declined to excuse him for cause. J.A. 163. Both the government anddefense counsel agreed that Darryl Bingham (No. 36) should be excused forcause because he had stated during individual questioning that he wouldnot 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 additional instructions, thecourt reconvened with the whole venire present. J.A. 169-170. The potentialjurors were instructed about the possible testimony of a government informantand asked whether any potential juror believed that the government shouldnot use informants. J.A. 171-172. The court also told the venire that oneof the charges involved firearms. The potential jurors were asked whetherany owned firearms, belonged to any organization that advocated restrictionson the ownership of firearms, or harbored any opinion about guns that wouldaffect their impartiality. J.A. 171-173.
The court then had counsel make their peremptory strikes. Pursuant to FederalRule of Criminal Procedure 24(b) and (c), respondent and his co-defendantwere jointly given ten peremptory strikes to pick the 12-person jury andone additional strike to pick the alternate. The prosecution was given sixstrikes to pick the jury and one to pick the alternate. Counsel were directedto 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 allowedthe possibility of both parties striking the same juror, which did not happenin picking the initial 12-person jury, but both parties did simultaneouslystrike the same potential alternate juror. J.A. 179-181. The record doesnot reflect how the co-defendants decided among themselves how they wouldexercise jointly their peremptory challenges. After the principal and alternatestrikes 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 challenges to strike Gilbert(No. 31). J.A. 180. Respondent neither requested an additional challengenor said that any other juror was objectionable as a regular juror. Bothparties 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 government's peremptory strikes of the two black potentialjurors, 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 toserve). J.A. 175-176. The court asked the government to provide race-neutralexplanations 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 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 strikeof Smith. J.A. 177-178. The court found that, although Smith asked to beexcused, she was willing to serve and "I don't think that there's ** * an appropriate reason to exercise a peremptory challenge with respectto her." J.A. 178. Smith was placed on the jury. The government didnot 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 possibilitythat Pelander, who had been acceptable to the parties, might become thealternate. J.A. Tr. 178-179. Instead, the court decided to give each partyone additional peremptory strike to choose an alternate. The next threejurors on the list were Pelander (No. 30), Riley (No. 32), and Ball (No.33). The government struck Pelander and the defense struck Ball, leavingRiley, 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 clerkcalled his name. J.A. 183-184. Defense counsel suggested that the defenseand the prosecution be given an additional peremptory strike and that thenext selected juror should substitute for Finck on the 12-person jury, withoutaffecting the status of Riley as the alternate. J.A. 185-186. Defense counselexplained that this suggestion would make it possible to add an Hispanicto the jury because the next three available jurors would include FranciscoOlivas (No. 35). J.A. 185-186. The court declined that suggestion. It decidedto accept the jury as selected and to have the marshals attempt to locateFinck. 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 peremptorychallenges in selecting the jury that served during the trial.

2. The court of appeals reversed respondent's convictions based on the "impairment"of respondent's right of peremptory challenge. Pet. App. 1a-19a. It firstheld that the district court abused its discretion by refusing to excusepotential juror Gilbert for cause. Id. at 7a-8a. Relying on this Court'sdecision in Ross v. Oklahoma, 487 U.S. 81 (1988), the court held that theerror did not constitute a violation of the Sixth Amendment, because Gilbertdid 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 processunder the Fifth Amendment. The court reasoned that the defense was forcedto use a peremptory challenge to remove a juror who should have been removedfor cause, and that the defense was thereby effectively denied a peremptorychallenge to which it was entitled by law. Id. at 9a-14a. The court heldthat, because respondent was denied the right to use his full complementof peremptory challenges as he saw fit, automatic reversal was requiredwithout any inquiry into whether the error was harmless. Id. at 14a-15a.
Judge Rymer dissented. Pet. App. 15a-19a. She concluded that the loss ofa peremptory challenge does not amount to a constitutional violation. Id.at 15a. In any event, Judge Rymer explained, respondent never suggestedto the district court that he wanted to strike some other juror with theperemptory challenge that was instead used to remove Gilbert. Id. at 16a.Judge Rymer therefore concluded that there was no indication that respondentwas adversely affected by the district court's refusal to remove Gilbertfor cause. Ibid. Judge Rymer further stated that respondent could obtainrelief only if he could establish plain error, because he had not adequatelypreserved an objection based on the denial of his right to exercise peremptorychallenges. Id. at 16a-17a. Finally, Judge Rymer concluded that respondenthad failed to demonstrate plain error because he could show no prejudiceand because it was far from clear that the use of a peremptory challengeto remove a juror who should have been excluded for cause amounts to a dueprocess violation, or even to a denial of the right to peremptory challengesprovided by Rule 24 of the Federal Rules of Criminal Procedure. Pet. App.17a-18a.

SUMMARY OF ARGUMENT

I. The right of federal criminal defendants to exercise peremptory challengesis created by federal rule, not by the Constitution. Such challenges "arenot constitutionally protected fundamental rights; rather, they are butone state-created means to the constitutional end of an impartial jury anda fair trial." Georgia v. McCollum, 505 U.S. 42, 57 (1992). In Rossv. Oklahoma, 487 U.S. 81 (1988), this Court held that a defendant who wasforced to "waste" a peremptory challenge by using it to removea juror who should have been removed for cause was neither denied an impartialjury nor any liberty interest under the Due Process Clause. The Court concludedthat applicable state law required a defendant who objected to the denialof 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 matterof state law. This Court should reach a similar conclusion about the rightto exercise peremptory challenges under Rule 24 of the Federal Rules ofCriminal Procedure. Recognition of a procedural requirement that a defendantmust use a peremptory challenge to cure the judge's error in denying a challengefor cause is consistent with the purpose of the peremptory challenge toassist in empaneling an impartial jury and, by preventing the need for retrial,the requirement conserves judicial resources when a trial judge has madean error in assessing the impartiality of a potential juror.
Even if the rule-based right of peremptory challenge under Rule 24 is foundto be impaired when a defendant "wastes" the challenge to curean erroneous ruling on a challenge for cause, it does not amount to a constitutionalviolation unless the error actually results in the seating of a biased juror.In general, the infringement of a nonconstitutional rule of procedure doesnot 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 fora due process claim only where it "results in prejudice so great asto deny a defendant his Fifth Amendment right to a fair trial." UnitedStates v. Lane, 474 U.S. 438, 446 n.8 (1986). The district court's errorin refusing to excuse a potential juror for cause simply led the defensein this case to use one of its peremptory challenges to achieve the samepurpose; that consequence cannot reasonably be said to have deprived respondentof a fair trial.

II. Even if there was an impairment of respondent's rights to exercise peremptorychallenges under Rule 24, and even if that impairment were viewed as implicatingthe 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 CriminalProcedure directs that an error in a federal criminal case shall be disregardedunless it affects "substantial rights." If the jury that decidedthe case was fair and impartial, the impairment of respondent's exerciseof peremptory challenges did not affect substantial rights.
A small class of fundamental rights has been found "so intrinsicallyharmful as to require automatic reversal" without showing an effecton the outcome of the trial, but that is only because errors in that class"infect the entire trial process" and "necessarily rendera 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 occurredare subject to harmless-error analysis." 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 ofa trial juror did not produce a fundamentally unfair trial.
A rule of automatic reversal for such an error in these circumstances wouldproduce substantial injustice. Per se reversal would force the criminaljustice system to bear the costs of retrial, a process that often wouldimpose particular strains on victims of crime, witnesses attempting to recallprior events, and society's reasonable expectation in the finality of thejudicial process. While the intangible values furthered by the peremptorychallenge are important, in this setting the infringement of those valuesis not of sufficient consequence to justify the requested remedy of reversinga conviction after a fundamentally fair trial. And given the inevitabilityof errors that impair peremptory challenges in the hurly burly of jury selection,automatic reversal for such errors would impose burdens on the criminaljustice system in a substantial number of cases.
Even if reversal without a specific showing of prejudice were warrantedin some cases where a peremptory challenge is "wasted" on a jurorwho should have been excused for cause, the record in this case does notsupport that result. The defense in this case was allocated a total of tenperemptory challenges to select the original jury, and it had unimpaireduse of nine. The defense thus substantially enjoyed the right to participatein jury selection through the exercise of peremptory challenges, despiteany error involving one such challenge. Moreover, although respondent ultimatelyexhausted his peremptory challenges after having "wasted" oneto remove the juror who should have been excused for cause, respondent neverobjected to any juror who remained on the jury or indicated that he wouldhave exercised an additional strike if he had one. On this record, thereis no indication that the jury that ultimately decided respondent's casewould have been composed differently even if his for-cause challenge hadnot been erroneously denied.

ARGUMENT

I. A DEFENDANT'S RULE-BASED OR DUE PROCESS RIGHTS ARE NOT VIOLATED WHENHE EXERCISES A PEREMPTORY CHALLENGE TO REMOVE A JUROR WHO SHOULD HAVE BEENEXCUSED FOR CAUSE

This Court has "long recognized that peremptory challenges are notof constitutional dimension." Ross v. Oklahoma, 487 U.S. 81, 88 (1988)(citing Gray v. Mississippi, 481 U.S. 648, 663 (1987)); Georgia v. McCollum,505 U.S. 42, 57 (1992) ("This Court repeatedly has stated that theright to a peremptory challenge may be withheld altogether without impairingthe constitutional guarantee of an impartial jury and a fair trial.");Stilson v. United States, 250 U.S. 583, 586 (1919) ("There is nothingin the Constitution of the United States which requires the Congress togrant peremptory challenges to defendants in criminal cases; trial by animpartial jury is all that is secured."). Because a defendant has noconstitutional right to peremptory challenges in a criminal case, the existenceof any such right is solely the product of statute or rule. J.E.B. v. Alabamaex rel. T.B., 511 U.S. 127, 137 n.7 (1994); Ross, 487 U.S. at 89; Frazierv. United States, 335 U.S. 497, 505 n.11 (1948). In this case, Rule 24 ofthe Federal Rules of Criminal Procedure affords a criminal defendant theright to exercise peremptory challenges. In light of the history and purposeof peremptory challenges to serve as "but one state-created means tothe constitutional end of an impartial jury and a fair trial," McCollum,505 U.S. at 57, there is no "impairment" of that right if thedefendant uses a peremptory challenge to remove a juror who should havebeen removed for cause. And even if the Court were to conclude that thereis 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 CriminalProcedure 24 Is Subject To Reasonable Procedural Limitations

Because peremptory challenges are not guaranteed by the Constitution, boththe existence and nature of the right to make such challenges in federalcriminal cases turns on a construction of Federal Rule of Criminal Procedure24. As applicable to this case, Rule 24 specifies that, for the selectionof the 12-person jury for the trial of a non-capital felony, the governmentis entitled to six peremptory challenges and the defendant or defendantsare 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 discretionto allow defendants additional peremptory challenges and to determine whetherthey shall be exercised separately or jointly. Ibid. When one alternatejuror is selected, as happened in this case, one additional peremptory challengeis granted to the government and to the defendants jointly, and it may beused only in the selection of the alternate. Rule 24(c).
Rule 24 does not specify in any other relevant way what procedures the courtshould employ in jury selection. In such matters, the district courts havelong been 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 longstandingpractice, federal courts have imposed a variety of procedural restrictionson the exercise of peremptory challenges, many of which might be said to"impair" an individual defendant's effective use of those challenges.This Court has held, however, that so long as the empaneled jury is fairand 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 peremptory challenges in some form dates to1790.2 At common law, a party could exclude a potential juror, who wouldotherwise qualify for service, without providing a reason, and the federalstatutes allowing such peremptory challenges carried forward the underlyingpurposes of that practice. See Swain v. Alabama, 380 U.S. 202, 214-220 (1965).The central purpose of the peremptory challenge is to provide reinforcementfor the right to an "impartial jury." U.S. Const. Amend. VI. SeeFrazier, 335 U.S. at 505 ("the right is given in aid of the party'sinterest to secure a fair and impartial jury"); J.E.B., 511 U.S. at137 n.8 ("[The] sole purpose [of the peremptory challenge] is to permitlitigants to assist the government in the selection of an impartial trierof fact.") (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614,620 (1991)).3
Judicially imposed limitations on the exercise of peremptory challengesare a necessity. As the Court noted in Ross, "the concept of a peremptorychallenge as a totally freewheeling right unconstrained by any proceduralrequirement is difficult to imagine." 487 U.S. at 90. It is thereforenot surprising that the exercise of peremptory challenges has long beensubject to constraints. Ibid. For example, this Court has held that a defendantmay not complain, in a joint trial, that his co-defendants had "impaired"his tactical use of peremptory challenges to select a jury by using theirperemptory challenges to strike jurors acceptable to him, United Statesv. Marchant, 25 U.S. (12 Wheat.) 480, 482 (1827), or that he was forcedto share his peremptory challenges with his co-defendants, thus reducingthe number he could independently exercise, Stilson v. United States, supra.The Court has also upheld federal court practices requiring simultaneoususe of peremptory challenges by the defense and the government, even thoughthat method might cause the defendant to "waste" a peremptorychallenge on a juror simultaneously excused by the prosecution. See Pointer,151 U.S. at 409, 412 (acknowledging that "[i]t is true that, underthe method pursued in this case, it might occur that the defendant wouldstrike from the list the same persons stricken off by the government,"but finding no impairment of the right of peremptory challenge). The Courthas approved a practice under which each potential juror, in turn, mustbe challenged either for cause or peremptorily and, if not excused, swornbefore another juror is considered, even though that process limits thedefendant's ability to allocate his peremptory challenges among potentialjurors. See St. Clair v. United States, 154 U.S. 134, 147-148 (1894) (findingit "not inconsistent with any settled principle of criminal law, nordoes it interfere with the selection of impartial juries"). The fundamentalreason why each described procedure has been endorsed, despite its allegedadverse effect on the tactical use of peremptory challenges by defendantsto dictate the composition of juries, is that it did not "interferewith the selection of impartial juries." Ibid. That is all the Constitutionrequires, see Stilson, 250 U.S. at 586, and that is the main objective ofgranting peremptory challenges, see Ross, 487 U.S. at 88.

B. Requiring A Defendant To Use A Peremptory Challenge To Strike A JurorWho Should Have Been Removed For Cause Is A Reasonable Procedural Rule

Measured against those standards, a requirement that a defendant must usea peremptory challenge to "cure" the trial court's erroneous denialof a for-cause strike should not be found to impair the rule-based rightof peremptory challenge. Rather, requiring the defendant to use the challengeto remove the partial juror is consistent with the core purpose of grantingperemptory challenges-to assist in securing an impartial jury.
Although the Court has never addressed this question as a matter of federallaw,4 it has examined a similar question arising under state law. In Rossv. Oklahoma, 487 U.S. 81 (1988), the Court concluded that a defendant couldnot base a due process claim on the theory that having to use a peremptorychallenge to cure a trial court's error in denying a for-cause challenge"arbitrarily depriv[ed] him of the full complement of * * * challengesallowed under Oklahoma law." Id. at 89. The Court held "[i]t isa long settled principle of Oklahoma law that a defendant who disagreeswith the trial court's ruling on a for-cause challenge must, in order topreserve the claim that the ruling deprived him of a fair trial, exercisea peremptory challenge to remove the juror." Ibid. "Even then,"the Court added, "the error is grounds for reversal only if the defendantexhausts all peremptory challenges and an incompetent juror is forced uponhim." Ibid. Thus, the Court concluded, "[a]s required by Oklahomalaw, [the defendant] exercised one of his peremptory challenges to rectifythe trial court's error [in denying a challenge for cause], and consequentlyhe retained only eight peremptory challenges to use in his unfettered discretion.But he received all that Oklahoma law allowed him, and therefore his dueprocess challenge fails." Id. at 90-91.
Federal law should be construed to contain a similar procedural requirement.5In view of the unquestioned legitimacy of procedural restraints on the defendant'suse of peremptory challenges to influence the composition of the jury, seepp. 17-18, supra, there can be no claim that a defendant must have absolutefreedom to use challenges in whatever way the defendant wishes. Rather,defense peremptory challenges have always been subject to court-imposedprocedural limits so long as they are consistent with "settled principlesof criminal law [recognized] to be essential in securing impartial juriesfor the trial of offences." Pointer, 151 U.S. at 408. As the Courtacknowledged in Ross, peremptory challenges are "a means to achievethe end of an impartial jury." 487 U.S. at 88. It is entirely consistentwith that purpose to require that defendants use their peremptory challengesto remove jurors whom the court should have removed for cause, thereby protectingthe impartiality of the jury. In selecting a jury, defendants as well asthe prosecution can be expected to exercise responsibility for preservingthe 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 defendantseeks to protect private interests, participation in selection of such a"quintessential governmental body" constitutes state action forequal protection purposes, such that a criminal defendant's "purposefuldiscrimination on the ground of race in the exercise of peremptory challenges"is prohibited). "[T]here is nothing arbitrary or irrational about sucha requirement, which subordinates the absolute freedom to use a peremptorychallenge 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 Exercise Peremptory ChallengesDoes Not Violate The Due Process Clause

Even if this Court were to conclude that a federal criminal defendant'srule-based right to exercise peremptory challenges is impaired when he usesa strike to remove a juror who should have been removed for cause, thatimpairment would not by itself give rise to a due process violation. Thequestion whether the impairment of the right constitutes a violation ofthe Due Process Clause turns on whether the violation "results in prejudiceso 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 impairmentof the rule-based right to excuse a juror without cause is not an errorof constitutional dimension.6
The impairment of a defendant's right to exercise peremptory challengesdoes not deny the defendant the right to be tried by a fair and impartialjury. In Ross, this Court rejected the view that a state court's erroneousdenial of a for-cause challenge violated the defendant's Sixth Amendmentright to an impartial jury, even though the defendant used one of his peremptorychallenges to remove the juror. 487 U.S. at 87-88. "So long as thejury that sits is impartial, the fact that the defendant had to use a peremptorychallenge to achieve that result does not mean the Sixth Amendment was violated."Id. at 88. As noted above, the Court in Ross also concluded that requiringthe defendant to use a peremptory challenge to remove a juror who shouldhave been excused for cause did not deprive the defendant of his rightsunder the Due Process Clause, because state law required the defendant totake that action in order to appeal the trial court's denial of a for-causechallenge. Id. at 89-91. But it is not necessary to conclude that a qualificationlike the one recognized by the Court in Ross exists in federal law to rejectthe claim of a due process violation. An error in forcing a defendant to"waste" a peremptory challenge would deprive him only of a rule-basedright to exercise that challenge, not of any right under the Constitution.
In unusual circumstances, the Court has held that the violation of a non-constitutionalrule of procedure deprived an individual of due process. For example, theCourt has held that the imposition of a sentence by a jury that was notinformed of its discretion to impose a lower sentence deprived the defendantof due process, and not simply "of a procedural right of exclusivelystate concern." Hicks v. Oklahoma, 447 U.S. 343, 346-347 (1980). TheCourt has also found a due process violation when a State denied a hearingto a complainant, based solely on an official's failure to comply with astate-law deadline for initiating an adjudication. Logan v. Zimmerman BrushCo., 455 U.S. 422 (1982). But those cases bear no resemblance to the criminalprocedure right at issue here. Unlike the law at issue in Hicks, Rule 24defines a process for selecting a jury, not for instructing the sentenceron the extent of its discretion.7 And unlike the situation in Logan, a defendantwhose peremptory challenge rights are impaired retains his right to be triedby an impartial factfinder and to exercise full due process rights beforebeing finally deprived of a protected liberty interest.
The court of appeals' holding that an impairment of the rule-based rightto exercise peremptory challenges by itself works a due process violationis inconsistent with this Court's many holdings that violations of nonconstitutionalprocedural rights provide no basis for federal habeas corpus relief. SeeEstelle 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 onthe basis of a perceived error of state law."); Rose v. Hodges, 423U.S. 19, 21-22 (1975) (per curiam) (same). That principle would be seriouslyundermined, if not altogether eliminated, if a violation of a criminal procedureright conferred by statute or rule alone were sufficient to establish adeprivation of liberty without due process of law. Under that analysis,due process claims could be brought on habeas corpus whenever a State violatedits own evidentiary rules (Estelle), statutory appellate process (Pulley),or limits on commutation authority (Hodges). To accord constitutional protectionto procedural rights voluntarily created by the government skews the basicpurpose of due process, which is to guarantee fundamental fairness. Thatexpansive view of the Due Process Clause cannot be sustained. As the Courthas explained:
We have long recognized that a "mere error of state law" is nota denial of due process. Gryger v. Burke, 334 U.S. 728, 731 (1948). If thecontrary were true, then "every erroneous decision by a state courton state law would come [to this Court] as a federal constitutional question."Ibid.
Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982).
Those principles support the conclusion that impairment of respondent'srights under the federal rule governing peremptory challenges does not perse violate the Constitution. See Lane, 474 U.S. at 446 n.8 (noting thatthe violation of Federal Rule of Criminal Procedure 8, governing joinder,"would rise to the level of a constitutional violation only if it resultsin prejudice so great as to deny a defendant his Fifth Amendment right toa fair trial"). And, although respondent exercised one of his allottedperemptory challenges to remove a juror who should have been removed forcause, he does not contend that the jury that tried him was anything otherthan fair and impartial.
The range of discretion available to a judge in conducting jury selection,despite the potential for the judge's actions to affect the exercise ofperemptory challenges, underscores that any impairment here did not renderthe trial fundamentally unfair. Legitimate limitations on voir dire maysignificantly affect the exercise of peremptory challenges, without raisingany constitutional issue. See Mu'min v. Virginia, 500 U.S. 415, 424- 425(1991); cf. J.E.B., 511 U.S. at 143-144. Jury selection procedures necessarilyconstrain the exercise of peremptory challenges. See Pointer v. United States,supra; St. Clair v. United States, supra. Finally, peremptory challengesmay not be used to discriminate 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 peremptorychallenges, the Due Process Clause is not violated simply because the defendanthas had to exercise a peremptory challenge to remove a juror who shouldhave been excused for cause. As Judge Rymer explained in dissent, "[t]ofind a due process violation for 'effectively' denying or impairing [respondent's]'right to the full complement of peremptory challenges to which he was entitledunder federal law,' as the majority does, [at Pet. App. 9a], comes fullcircle by 'effectively' making the exercise of a peremptory challenge aconstitutional right." Pet. App. 19a. Yet this Court has repeatedlyheld the opposite.


II. IMPAIRMENTS OF A DEFENDANT'S EXERCISE OF PEREMPTORY CHALLENGES ARE SUBJECTTO HARMLESS ERROR ANALYSIS

Rule 52(a) of the Federal Rules of Criminal Procedure provides that "[a]nyerror, defect, irregularity or variance which does not affect substantialrights shall be disregarded."8 "[A] federal court may not invokesupervisory power to circumvent the harmless-error inquiry prescribed byFederal Rule of Criminal Procedure 52(a). * * * Rule 52 is, in every pertinentrespect, as binding as any statute duly enacted by Congress, and federalcourts have no more discretion to disregard the Rule's mandate than theydo to disregard constitutional or statutory provisions." Bank of NovaScotia v. United States, 487 U.S. 250, 254-255 (1988); Lane, 474 U.S. at444-449 & n.11.
In general, to affect substantial rights, an "error must have beenprejudicial: 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 Statesv. Mechanik, 475 U.S. 66, 72 (1986). Even errors that violate importantconstitutional rights are generally subject to analysis under that test.Neder v. United States, 119 S. Ct. 1827, 1833 (1999). Reversal for errorwithout consideration of whether the defendant suffered case-specific prejudiceis "the exception and not the rule." Rose v. Clark, 478 U.S. 570,578 (1986). While a few errors are deemed "so intrinsically harmfulas to require automatic reversal (i.e., 'affect substantial rights') withoutregard to their effect on the outcome," 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 occurredare subject to harmless-error analysis." Rose, 478 U.S. at 579. Underthose principles, even if it was error when respondent was required to usea peremptory challenge to strike the juror who should have been removedfor cause, reversal is not required absent a showing of prejudice. The courtof appeals' holding that the error demanded automatic reversal is incorrectand should be rejected.9

A. An Impairment Of Peremptory Challenges Is Harmless If An Impartial JurySits

Since this Court's decision in Chapman v. California, 386 U.S. 18 (1967),it has been clear that even errors that violate important constitutionalrights are subject to review for harmlessness. Harmless-error analysis applies,for example, to improper comments on the defendant's failure to testify,Chapman, supra; to admission of a coerced confession, Arizona v. Fulminante,499 U.S. 279, 310 (1991); and to a violation of the Sixth Amendment's jurytrial 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 caseshas the Court found that certain fundamental constitutional errors requirereversal 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 errorsthat deprive defendants of the "basic protections [without which] acriminal trial cannot reliably serve its function as a vehicle for determinationof guilt or innocence, and no criminal punishment may be regarded as fundamentallyfair") (quoting Rose, 478 U.S. at 577-578). Those instances of "structuralerror" include Gideon v. Wainwright, 372 U.S. 335 (1963) (completedenial of trial counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (biased judge);Vasquez v. Hillery, 474 U.S. 254 (1986) (racial discrimination in grandjury selection); Waller v. Georgia, 467 U.S. 39 (1984) (denial of publictrial); Gomez v. United States, 490 U.S. 858, 876 (1989) (jury selectionbefore a magistrate lacking jurisdiction); and Sullivan v. Louisiana, 508U.S. 275 (1993) (defective reasonable doubt instruction). Similarly, theseating, over the defendant's objection, of an actually biased juror representsa form of error that is intrinsically harmful and that warrants reversalwithout any inquiry into case-specific prejudice. See, e.g., Rose, 478 U.S.at 578; Parker v. Gladden, 385 U.S. 363, 366 (1966); cf. Morgan v. Illinois,504 U.S. 719, 726-727 (1992).
The error in this case differs significantly from those errors that havebeen found to "infect the entire trial process" and that "necessarilyrender a trial fundamentally unfair." Neder, 119 S. Ct. at 1833. Whereno actually biased juror is seated, errors impairing the exercise of peremptorychallenges do not deprive the defendant of an "impartial jury."At most, such errors deprive the defendant of the right to exclude a jurorwhom the defendant believes would be less favorable to him than some otherjuror. Such errors do not justify the conclusion that in each and everycase the error affects "substantial rights," notwithstanding thedefendant's representation by counsel and receipt of a fair trial beforean impartial jury. Those errors, therefore, are not within the "verylimited 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 affect the defendant's "substantial rights"unless it affects the outcome of the trial.10 The error in this case cannotreasonably be said to have had any such effect. It would be purely speculativeto conclude that the substitution of one impartial juror for some otherimpartial juror would have changed the trial's verdict. And it is not sufficientto note that the error "may have resulted in a jury panel differentfrom that which would otherwise have decided the case." Ross, 487 U.S.at 87 (rejecting claim that jury selection error warranted reversal evenif "the composition of the jury panel might have changed significantly").The jury that sat was fair and impartial, and respondent had no right toa jury composed of particular jurors. See Marchant, 25 U.S. (12 Wheat.)at 482; Taylor v. Louisiana, 419 U.S. 522, 538 (1975) ("Defendantsare not entitled to a jury of any particular composition.").
This Court reached a similar conclusion in determining that an impairmentof the exercise of peremptory challenges does not, without more, justifygranting 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 torespond to a question on voir dire denied a party information that wouldhave been useful in exercising a peremptory challenge. Id. at 549-552. Relyingon Section 2111 of Title 28 and Federal Rule of Civil Procedure 61-a civilanalogue to Rule 52(a)-the Court concluded that reversal would not be justifiedunless a correct response by the juror "would have provided a validbasis for a challenge for cause." 464 U.S. at 556. The Court recognizedthe importance of a full response on voir dire to the intelligent exerciseof peremptory challenges: "hints of bias not sufficient to warrantchallenge for cause may assist parties in exercising their peremptory challenges."Id. at 554. But it concluded that "[t]he harmless-error rules adoptedby this Court and Congress embody the principle that courts should exercisejudgment in preference to the automatic reversal for 'error' and ignoreerrors that do not affect the essential fairness of the trial." Id.at 553. Although McDonough is a civil case, its underlying principle isapplicable here as well. Notwithstanding the importance of the right toexercise peremptory challenges, an impairment of that right does not warrantper se reversal so long as the jury that actually sits is "impartial."11

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 heavilyon this Court's statement in Swain v. Alabama, 380 U.S. 202, 219 (1965)that a "denial or impairment of the right [to exercise peremptory 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 languagein Swain, however, was unnecessary to the decision in that case.12 As thisCourt has noted, "it is to the holdings of our cases, rather than theirdicta, that we must attend." Bennis v. Michigan, 516 U.S. 442, 450-451(1996) (brackets omitted); United States Nat'l Bank of Or. v. IndependentIns. Agents of Am., Inc., 508 U.S. 439, 463 n.11 (1993) (finding that languagein a prior decision "is obviously not controlling, coming as it didin an opinion that did not present the question we decide in these cases").
Not only is the statement in Swain dictum, but the authorities on whichthe Court relied do not provide controlling doctrine today. Swain reliedon a series of early decisions from this Court reversing judgments, includingcriminal convictions, on the basis of errors impairing defendants' exerciseof their peremptory challenges. 380 U.S. at 219 (citing Harrison v. UnitedStates, 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)).13Those cases, however, were "decided long before the adoption of FederalRule[] of Criminal Procedure * * * 52, and prior to the enactment of theharmless-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 misjoinderof charges requires automatic reversal. Ibid. (noting that per se reversalapproach of McElroy v. United States, 164 U.S. 76 (1896), did not survivelater statutory harmless-error provisions). Similarly in this case, judicialrules generated in an era when trial error was presumptively reversibleand reviewing courts were called "citadels of technicality," Kotteakosv. United States, 328 U.S. 750, 759 (1946), are no longer authoritative.
There is no basis for retaining the automatic-reversal rule as a matterof principle. It is undoubtedly true, as the Ninth Circuit has observed,that, "unlike typical trial errors, [an error involving a peremptorychallenge does] not 'occur[] during the presentation of the case to thejury'"; thus, it "may not be 'quantitatively assessed in the contextof other evidence presented in order to determine whether its admissionwas harmless beyond a reasonable doubt.'" United States v. Annigoni,96 F.3d at 1144 (quoting Arizona v. Fulminante, 499 U.S. at 308) (emphasisomitted). But those observations underscore the reason why errors that impairthe exercise of peremptory challenges are intrinsically less threateningto a defendant's rights than, for example, admission of a coerced confession,Fulminante, supra, or omission of an element from the jury instructions,Neder, supra. The impairment of a peremptory challenge restricts the defendant's"arbitrary and capricious" right to say that a juror will notsit, 4 William Blackstone, Commentaries *353, but it has no effect on thetrial record or on the issues presented to the jury. The absence of thoseconsequences is a reason to find a lack of prejudice to the defendant'sfair trial rights, not to presume prejudice in all cases.
A defendant whose right to exercise peremptory challenges is impaired maysuffer an injury to the intangible values sometimes said to be furtheredby the challenge. See Swain, 380 U.S. at 219 (the right of peremptory challengefunctions "to assure the parties that the jurors before whom they trythe case will decide on the basis of the evidence placed before them, andnot otherwise"). But a defendant's subjective belief that a particularjuror, though properly qualified as impartial, may in fact be less favorableto him than another juror, is not a sufficient reason to overturn the resultsof an otherwise fair trial. Cf. Rosales-Lopez v. United States, 451 U.S.182, 188, 191-192 (1981) (plurality opinion) (requiring, as a matter ofsupervisory authority over the federal courts, inquiry on voir dire intopossible racial prejudice of jurors at the defendant's request, where thedefendant 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 "reasonablepossibility" that racial or ethnic prejudice influenced the jury).Retrials are not cost-free for society, witnesses, or victims. And "[p]assageof time, erosion of memory, and dispersion of witnesses may render retrialdifficult, even impossible." Engle, 456 U.S. at 127-128. Those factorsstrongly counsel against upsetting the original verdict absent a denialof the fundamental elements of a fair trial or concrete prejudice to thedefense. As the Court noted:
These societal costs of reversal and retrial are an acceptable and oftennecessary consequence when an error in the first proceeding has depriveda 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 hashad no effect on the outcome of the trial.
United States v. Mechanik, 475 U.S. 66, 72 (1986). A rule of automatic reversalthus bears a heavy burden of justification. See United States v. Hasting,461 U.S. 499, 509 (1983). The possible discomfort to the defendant resultingfrom the impairment of his rule-based peremptory challenges does not meetthat test. Cf. Morris v. Slappy, 461 U.S. 1, 13-14 & n.6 (1983) (constitutionalright 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 magnified by the inevitabilityof errors in jury selection that may impair a defendant's intelligent exerciseof his challenges. Jury selection is often fast-paced and conducted underpressure. A trial judge has complex responsibilities: the judge must ensurethat parties have an adequate basis for making challenges, that claims oferror (including allegations of discrimination in the use of peremptorychallenges) are adjudicated promptly and fairly, and that impartial jurorsare empaneled. If the selection is conducted properly, voir dire will flushout relevant information; jurors who are unqualified, biased, or incapableof following the law will be excused; and parties will exercise their peremptorychallenges for whatever non-discriminatory reasons they may have. But experienceshows that, despite the diligence of trial judges, jury selection will alsoproduce a significant number of errors that, in retrospect, impair or denythe defendant's peremptory challenges. Given that reality, a rule of automaticreversal in every case is too high a price to pay.14

C. The Record Does Not Demonstrate Prejudice From Any Impairment Of Respondent'sPeremptory Challenge Rights

Finally, even on the assumption that some impairments of the peremptorychallenge right might warrant reversal notwithstanding the empaneling ofa fair and impartial jury, the record in this case demonstrates that therewas no violation of respondent's "substantial rights." At most,respondent was deprived of one of the ten peremptory challenges that heand his co-defendant might have used to select the initial 12-person jury.Fed. R. Crim. P. 24(b) and (c) (defense is entitled to ten strikes to selecttrial jurors in a felony case and to one strike to select one or two alternatejurors). Even if respondent's strike of the one juror who should have beenexcused for cause is considered to have been "wasted," the defensestill had a considerable opportunity to participate in jury selection throughthe exercise of peremptory challenges and did not suffer a substantial impairmentof that right.
Moreover, the record affords no basis for concluding that the jury thatultimately decided this case would have been different even if the courthad excused Gilbert for cause. Respondent never indicated to the districtcourt that he was dissatisfied with the 12-person jury selected throughthe exercise of his initial nine peremptory strikes. Nor did respondentvoice an objection to any of the jurors actually selected or indicate that,if he had been granted another peremptory challenge in selecting the original12-juror panel, he would have excused another juror.15
At a bare minimum, a showing of prejudice should require "some objectionfrom 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.2d691, 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) ("Itis entirely consistent with the record that the 12 jurors who actually triedthe case were absolutely satisfactory to defendant, and that he desiredall of them to serve, and would not have excused any one of them if he hadbeen given the opportunity. After judgment, the contrary should not be presumed.").A requirement for a defendant to lodge some objection to the panel as selectedis especially appropriate under Rule 24 in a case involving multiple defendants,because the district court is granted discretion by Rule 24(b) to grantadditional peremptory challenges. Cf. Lewis v. United States, 146 U.S. at378-379 ("It does not appear in the present case that the prisonermade any demand to challenge any of the jury beyond the twenty allowed bythe Revised Statutes."). Accordingly, assuming that, despite the empanelingof a fair and impartial jury, an impairment of a defendant's right to exerciseperemptory challenges might be found in some case to have affected his "substantialrights," a defendant should at least have to indicate on the recordduring jury selection that he would have used a peremptory challenge ina specific manner. Because the present record contains no such indication,any error in jury selection should not result in reversal of respondent'sconviction.

CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General
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



1 The procedures followed by the district court may be discerned from thetranscript of the jury selection, which is contained in its entirety inthe Joint Appendix at pages 56-189, and the master jury list kept by theclerk and filed in the district court record, which is contained in theJoint Appendix at pages 190-192.

2 See Holland v. Illinois, 493 U.S. 474, 481 n.1 (1990) (discussing Actof Apr. 30, 1790, ch. 9, § 30, 1 Stat. 119). A general right to exerciseperemptory challenges in federal non-capital cases did not exist until theAct of June 8, 1872, ch. 333, 17 Stat. 282, unless a local rule of the federalcourt adopted a provision of state law allowing such challenges, Act ofApr. 30, 1790, ch. 9, § 30, 1 Stat. 119. See Frazier, 335 U.S. at 505n.11.

3 Blackstone elaborated on the purpose of the peremptory:
[I]n criminal cases, or at least in capital ones, there is, in favorem vitae,allowed to the prisoner an arbitrary and capricious species of challengeto a certain number of jurors, without shewing any cause at all; which iscalled a peremptory challenge: a provision full of that tenderness and humanityto prisoners, for which our English laws are justly famous. This is groundedon two reasons. 1. As every one must be sensible, what sudden impressionsand unaccountable prejudices we are apt to conceive upon the bare looksand gestures of another; and how necessary it is, that a prisoner (whenput to defend his life) should have a good opinion of his jury, the wantof which might totally disconcert him; the law wills not that he shouldbe tried by any one man against whom he has conceived a prejudice, evenwithout being able to assign a reason for such his dislike. 2. Because,upon challenges for cause shewn, if the reason assigned prove insufficientto set aside the juror, perhaps the bare questioning his indifference maysometimes provoke a resentment: to prevent all ill consequences from which,the prisoner is still at liberty, if he pleases, peremptorily to set himaside.
4 William Blackstone, Commentaries *353 (quoted in Lewis v. United States,146 U.S. 370, 376 (1892)).

4 The Court explicitly noted in Ross, 487 U.S. at 91 n.4, that it "neednot decide the broader question whether, in the absence of Oklahoma's limitationon the 'right' to exercise peremptory challenges, 'a denial or impairment'of the exercise of peremptory challenges occurs if the defendant uses oneor 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 occurredwhen he had used a peremptory challenge to remove a juror who should havebeen struck for cause; rehearing denied because, inter alia, the recordshowed that the defendant had been allowed 21 challenges, one more thanthe law required, "and the record does not disclose that other thanan impartial jury sat on the trial").

5 While several courts of appeals have concluded that "it is errorfor a court to force a party to exhaust his peremptory challenges on personswho should be excused for cause, for this has the effect of abridging theright to exercise peremptory challenges," United States v. Nell, 526F.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 defendantexhausted his peremptory challenges after using one to remove a juror whoshould have been removed for cause, the burden rests on the chal-lengingparty "to demonstrate that because he used a peremptory challenge onan incompetent venireman, an objectionable juror was allowed to serve,"United States v. Allsup, 566 F.2d 68, 76 (9th Cir. 1977) (Foley, D.J., concurring).In view of the common-law heritage of the federal peremptory challenge right,the proper rule to be adopted for federal practice may be illuminated byadministration of the peremptory challenge in the States. Twenty-six Stateshave a rule that a defendant may not challenge on appeal a trial judge'serror in denying a for-cause challenge where the defendant exercised a peremptorychallenge to remove the juror, and those States do not appear to have reverseda conviction on the theory that such a use of a peremptory challenge constitutesa prejudicial "impairment" of the peremptory-challenge right.(We have collected in an appendix to this brief a summary of the positionstaken by the state courts.)

6 In contrast, constitutional error does occur when a biased juror sitson the case because the defendant was improperly deprived of a peremptorychallenge that would have allowed the defendant to remove him. Cf. Irvinv. Dowd, 366 U.S. 717 (1961). There is, however, no general reason to finda constitutional violation based on the impairment of peremptory challengesunless it results in the seating of a biased juror. A due process violationin this context requires a showing of prejudice to a fair trial, and ifthe jury that sits is impartial, no such showing can generally be made.See pp. 28-31, infra.

7 The jury in Hicks was erroneously instructed that punishment must be assessedat 40 years' imprisonment, when state law authorized the jury to imposeany 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 factfinderthat could give him "an opportunity [to be heard] at a meaningful timeand in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552(1965). Nothing of the kind can be said here; respondent enjoyed his fullright to be heard in his criminal trial.

8 Similarly, Section 2111 of Title 28, United States Code, provides 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 withoutregard to errors or defects which do not affect the substantial rights ofthe parties."

9 Harmless-error analysis applies whether the error in question is constitutionalor statutory. When the error in question is of constitutional dimension,the government bears the burden of showing beyond a reasonable doubt thatthe 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 nothave a "substantial and injurious effect or influence in determiningthe jury's verdict." Kotteakos v. United States, 328 U.S. 750, 776(1946). Thus, the standard of harmless-error review in cases such as thisone will turn on whether, assuming there is error, the Court finds a violationof 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-basedrights, and should conduct harmless-error analysis under Kotteakos.
10 The government carries the burden to show harmlessness if a proper objectionhas been made in the district court; if the claim of error is forfeited,the defendant must show an effect on substantial rights under the plain-errorstandard 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).

11 Several courts of appeals have held that an erroneous ruling on a for-causechallenge is harmless error when the defendant uses a peremptory challengeto "cure" that ruling, so long as the jury that actually sat inthe case was not biased. See, e.g., United States v. Brooks, 161 F.3d 1240,1245 (10th Cir. 1998) (failure to rule correctly on for-cause challengeis harmless error where defendant exercises peremptory strike on challengedjuror and "has not alleged that any of the jurors actually seated werebiased"); United States v. Horsman, 114 F.3d 822, 825 (8th Cir. 1997)(failure to strike for-cause not prejudicial error where defendant struckvenire member with peremptory challenge and failed to meet "the burdenof 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 (1st Cir.1992) (Breyer, C.J.) (defendant's use of a peremptory to excuse juror whoshould have been excused for cause is harmless error, where defendant didnot use up all peremptory challenges); but see, e.g., United States v. Broussard,987 F.2d 215, 221 (5th Cir. 1993) (erroneous denial of a peremptory challengeunder Batson cannot be harmless error); United States v. Ricks, 776 F.2d455, 461 (4th Cir. 1985) (right to peremptory of such significance thatdenial or substantial impairment of the right constitutes per se reversibleerror), cert. denied, 479 U.S. 1009 (1986).

12 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 theprosecutor had the impermissible purpose to remove black jurors on the basisof 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'spurposeful discrimination on the basis of race in the exercise of peremptorychallenges violates the Equal Protection Clause. See id. at 92-93 (rejectingSwain standards). Because Swain did not address any claim that a defendanthad been denied a peremptory challenge right, the statement from Swain quotedin text (380 U.S. at 219) was dictum.

13 In Harrison, the applicable statute required that the defendant be grantedten 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 forcause be presented to the parties for peremptory strikes, but the panelpresented had only 12 jurors. 157 U.S. at 350-351. In Lewis, the trial courtdenied the defendant the right to be brought face-to-face with the venirebefore or during the exercise of peremptory challenges and thereby deprivedhim of information from which the challenges could be made. 146 U.S. at375-376. In each case, the Court reversed without inquiring into whetherthere was any case-specific prejudice.

14 As noted above (note 6, supra), if the improper denial or impairmentof a peremptory results in the seating of a juror who should have been excusedfor cause, sufficient prejudice is shown to justify reversal. There is noclaim of that character here. In Ross this Court noted that "[n]o claimis made here that the trial court repeatedly and deliberately misappliedthe law in order to force [the defendant] to use his peremptory challengesto 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 judgeintentionally and repeatedly erred in denying for-cause challenges to compelrespondent to use peremptory challenges to cure those errors. Accordingly,no question is presented here whether such an error might constitute prejudicewarranting reversal. Nor is any question presented here whether, even ifreversal were not justified in that setting, interlocutory appellate reliefmight be available to remedy the court's error.

15 When juror Finck failed to appear as a member of the 12-person jury afterthe jury was selected, respondent did request that another strike be grantedto 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. Respondentoffered that suggestion to permit the possibility that an Hispanic juror,Olivas, would be placed on the 12-person jury. Ibid. That request for aperemptory challenge, however, cannot do service for a claim that an originallyselected trial juror would have been removed but for the strike "wasted"to remove juror Gilbert. Even if it could, that belated request for an additionalperemptory challenge could not form the basis for a claim of prejudice.Respondent's desired use of the additional peremptory was not to removean objectionable juror but to enhance the possibility of placing an Hispanicon the jury. Peremptory challenges, however, are not a means of selectingparticular trial jurors, but of rejecting them. See United States v. Marchant,25 U.S. (12 Wheat.) at 482 ("The right, therefore, of challenge, doesnot 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 whoshall be the particular jurors to try him."). And to the extent thatrespondent specifically intended to exercise his challenge against a non-Hispanicon the basis of ethnicity, the challenge would appear to violate equal protectionprinciples. Cf. Hernandez v. New York, 500 U.S. 352 (1991).


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 courtshall give judgment after an examination of the record without regard toerrors or defects which do not affect the substantial rights of the parties.

2. Rule 24 of the Federal Rules of Criminal Procedure provides:

Rule 24. Trial Jurors

(a) Examination. The court may permit the defendant or the defendant's attorneyand the attorney for the government to conduct the examination of prospectivejurors or may itself conduct the examination. In the latter event the courtshall permit the defendant or the defendant's attorney and the attorneyfor the government to supplement the examination by such further inquiryas it deems proper or shall itself submit to the prospective jurors suchadditional 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 peremptory challenges. If the offense chargedis punishable by imprisonment for more than one year, the government isentitled to 6 peremptory challenges and the defendant or defendants jointlyto 10 peremptory challenges. If the offense charged is punishable by imprisonmentfor not more than one year or by fine or both, each side is entitled to3 peremptory challenges. If there is more than one defendant, the courtmay allow the defendants additional peremptory challenges and permit themto be exercised separately or jointly.

(c) Alternate Jurors. The court may direct that not more than 6 jurors inaddition to the regular jury be called and impanelled to sit as alternatejurors. Alternate jurors in the order in which they are called shall replacejurors 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 samequalifications, shall be subject to the same examination and challenges,shall take the same oath and shall have the same functions, powers, facilitiesand privileges as the regular jurors. An alternate juror who does not replacea regular juror shall be discharged after the jury retires to consider itsverdict. Each side is entitled to 1 peremptory challenge in addition tothose otherwise 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 challenges if 5 or 6 alternate jurors are to be impanelled.The additional peremptory challenges may be used against an alternate juroronly, and the other peremptory challenges allowed by these rules may notbe used against an alternate juror.

3. Rule 52 of the Federal Rules of Criminal Procedure provides:

Rule 52. Harmless Error and Plain Error

(a) Harmless Error. Any error, defect, irregularity or variance which doesnot affect substantial rights shall be disregarded.

(b) Plain Error. Plain errors or defects affecting substantial rights maybe noticed although they were not brought to the attention of the court.



APPENDIX B

STATES THAT DECLINE TO TREAT AN ERRONEOUS DENIAL OF CHALLENGE FOR CAUSEAS REVERSIBLE ERROR WHEN THE CONTESTED JUROR WAS REMOVED BY DEFENDANT'SUSE 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 othergrounds, 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. Neuendorf, 509 N.W.2d 743, 747 (Iowa 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,537 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 statutorycommand, see Mo. Ann. Stat. § 494.480.4 (West 1996))
Thompson v. State, 721 P.2d 1290, 1291 (Nev. 1986) (per curiam)
State v. DiFrisco, 645 A.2d 734, 751-754 (N.J. 1994), cert. denied, 516U.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.I. 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 REVERSIBLEERROR EVEN THOUGH CONTESTED JUROR WAS REMOVED BY DEFENDANT'S USE OF PEREMPTORYCHALLENGE

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)
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, 353S.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)