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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



REPLY BRIEF FOR THE UNITED STATES




SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



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



REPLY BRIEF FOR THE UNITED STATES






Respondent makes three main arguments: that his use of a peremptory challengeto remove a juror who should have been excused for cause violated his rightsunder Rule 24 of the Federal Rules of Criminal Procedure; that the purportedviolation of the Rule establishes a violation of his rights under the DueProcess Clause of the Fifth Amendment; and that, despite respondent's unfetteredexercise of at least nine out of ten allotted peremptory challenges to selectthe petit jury and the ultimate empanelment of an "impartial jury"within the meaning of the Sixth Amendment, the erroneous impairment of oneperemptory challenge "defies harmless-error review" and constitutes"structural error" that mandates reversal of his conviction. Resp.Br. 28. None of those contentions has merit.



A. The Use Of A Peremptory Challenge To Remove A Juror Who Should Have BeenRemoved For Cause Is A Proper Function Of The Challenge, Not An "Impairment"Of It

1. Respondent's use of one of his peremptory challenges to cure the districtcourt's erroneous denial of his challenge for cause did not impair his rightsunder Federal Rule of Criminal Procedure 24. Respondent concedes, as hemust, that a principal purpose of peremptory challenges is to help securethe constitutional guarantee of an objectively fair and impartial jury.1Respondent accepts that peremptory challenges are "a tool for the SixthAmendment's guarantee of an objectively fair and impartial jury" (Br.12) and "a vehicle that drives toward Sixth-Amendment compliance"(Br. 15). When respondent used one of the ten defense peremptory challengesto remove juror Gilbert, his action served that purpose and, therefore,constituted a use contemplated by Rule 24.
Respondent contends (Br. 13), however, that the right to exercise peremptorychallenges is also designed to allow a defendant to exclude potential jurorswho, despite being objectively impartial, are subjectively unacceptableto the defense. See Swain v. Alabama, 380 U.S. 202, 214-220 (1965); Lewisv. United States, 146 U.S. 370, 376 (1892). Respondent then characterizesthe defendant's interest in a jury that he "subjectively" perceivesto be "fair" (Br. 12) as an overriding value that may not be infringedby the trial court. That is not correct. Peremptory challenges are extendedby legislatures as a matter of policy, not as a matter of constitutionalright, and they are necessarily subject to a variety of procedural restrictions.Under no circumstances is the defendant assured of the right to excludeall jurors "whom the defendant feels harbor prejudice against him butcannot successfully challenge for cause." Ibid. Peremptory challengesare limited in number and variable at the legislature's will. Accordingly,the jury ultimately selected may include a number of jurors, or even anentire panel, whom the defendant subjectively distrusts.2 And even consideringonly the allotted number of strikes, this Court has upheld a variety ofprocedures that restrict the defendant's "right" to use peremptorychallenges to advance his "subjective" interests. See Stilsonv. United States, 250 U.S. 583, 586 (1919) (sharing of peremptories amongco-defendants); Pointer v. United States, 151 U.S. 396, 409, 412 (1894)(simultaneous defense and prosecution strikes); St. Clair v. United States,154 U.S. 134, 147-148 (1894) (requirement to exercise or waive peremptorystrike as each potential juror is selected at random and qualified); U.S.Br. 16-18. Those cases refute respondent's contention that peremptory challengesprovide absolute protection of the defendant's interest in a "subjectivelyfair" jury.3
Against that background, a defendant may properly be required to use a peremptorychallenge to cure an erroneous ruling on a challenge for cause. See Rossv. Oklahoma, 487 U.S. 81, 89 (1988) (noting similar rule under state law).As a practical matter, requiring the defendant to use a peremptory challengeto cure an erroneous denial of a for-cause challenge imposes a far lessonerous burden on the right than the consequences of a court's choice amongvarious approved jury-selection procedures. And the alternative-permittingthe defendant to withhold a peremptory challenge notwithstanding his disagreementwith the trial court's ruling on a challenge for cause-would be to increasethe risk of reversal whenever the trial court rejects a challenge for cause.Under respondent's position, a defendant who does not exercise a peremptorychallenge to remove the suspect juror may apparently appeal based on thetrial court's erroneous denial of the for-cause challenge, while a defendantwho does remove the juror with a peremptory challenge may appeal based onthe "impairment" of his right of challenge under Rule 24. Allowingthe defendant both of those options undermines one of the core utilitiesof peremptory challenges, i.e., to provide additional protection againstthe possibility that a court's error in seating a biased juror will invalidatethe results of an otherwise fair trial.4
That conclusion is particularly true given the uncertainty that often surroundsa trial judge's determination of a challenge for cause. A juror who hasexpressed some preliminary leaning towards the prosecution or distaste forthe defendant frequently will, after admonishment by the trial judge, stateon the record that he will consider the evidence free from any bias. Ifthe trial judge believes the juror's representation, the judge's denialof a challenge for cause will be virtually unassailable on appeal. See Wainrightv. Witt, 469 U.S. 412, 424-426 (1985); Irvin v. Dowd, 366 U.S. 717, 723-725(1961). But jurors do not always speak with precision, and there may beroom for disagreement over whether an expressed commitment to follow thelaw is given too grudgingly or over the juror's private reservations.5 Thus,notwithstanding a juror's representation, a defendant nonetheless may fearthat the juror's true lack of impartiality lies undetected in the juror'ssubconscious. When a defendant uses a peremptory challenge to remove sucha juror, it is impossible to say for certain whether that strike was usedto remove a juror who was actually biased or merely one whom the defendantfeared was disinclined toward him. In either case, the peremptory strikewould have been well and properly employed.6
Respondent suggests (Br. 21-22) that our position would saddle defendantswith the entire burden of ensuring the correctness of the district court'sfor-cause rulings. That is not the case. When the government challengesa juror for cause and the challenge is erroneously denied, the burden fallson the government to secure the Sixth Amendment requirement of an objectivelyimpartial jury by exercising one of its peremptory challenges. There isno other remedy available to the government because the government cannotappeal an acquittal returned by a jury biased in favor of the defendant.An equal application of the law would similarly dictate that, when a defendantchallenges a juror for cause and the challenge is erroneously denied, theburden falls on the defendant to secure the Sixth Amendment requirementby exercising one of his peremptory challenges. Because both the prosecutionand the defense have a duty to seek an impartial jury, they both have avested interest in exercising a peremptory challenge to remove a juror whowas the subject of an erroneous for-cause challenge ruling.7

2. Respondent argues (Br. 16-18) that the rule of lenity requires Rule 24to be interpreted in his favor. That canon of construction, however, hasno application in this context. Respondent acknowledges (Br. 16) that therule of lenity is not applicable unless the case raises a "grievousambiguity or uncertainty in the language and structure of" the provisionunder interpretation. Ibid. (quoting from Chapman v. United States, 500U.S. 453, 463 (1991)). That standard is not met here. The rule we proposeis not addressed in the text of Rule 24, but derives from the Court's long-recognizedauthority to develop sensible procedures to administer the right of peremptorychallenge.8
In any event, the purposes underlying the rule of lenity make clear thatit does not apply to the construction of rules of criminal procedure. Asthis Court explained in United States v. Lanier, 520 U.S. 259 (1997), therule of lenity is a manifestation of the "fair warning requirement,"which provides that "no man shall be held criminally responsible forconduct which he could not reasonably understand to be proscribed."United States v. Harriss, 347 U.S. 612, 617 (1954); see Lanier, 520 U.S.at 265. The rule of lenity also "reflects the deference due to thelegislature, which possesses the power to define crimes and their punishment."Id. at 265 n.5. Viewed in light of those two purposes- ensuring fair warningand deferring to legislative definitions of crimes and punishment-the lenityprinciple applies only to criminal statutes, and not to rules of procedure.As Lanier emphasized, "the canon of strict construction of criminalstatutes, or rule of lenity, ensures fair warning by so resolving ambiguityin a criminal statute as to apply it only to conduct clearly covered."Id. at 266 (emphasis added); see United States v. Bass, 404 U.S. 336, 347-348(1971).9


B. A Violation Of Rule 24 Would Not Constitute An Infringement Of Respondent'sDue Process Rights

Even assuming that the trial court's error in ruling on the for-cause challengeto juror Gilbert compelled respondent to use a peremptory challenge he wouldotherwise not have used, and thereby impaired his peremptory-challenge rightsunder Rule 24, any such violation would not infringe respondent's rightsunder the Due Process Clause. Resp. Br. 23-26. A violation of a proceduralrule results in a denial of due process only when it "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), or "so infuse[s]the trial with unfairness as to deny due process of law," Estelle v.McGuire, 502 U.S. 62, 75 (1991) (quoting Lisenba v. California, 314 U.S.219, 228 (1941)). The most that respondent can show is that the districtcourt's erroneous for-cause ruling caused him to exercise his peremptorychallenges against nine, rather than ten, unquestionably impartial jurors.He cannot demonstrate that the unfettered use of only nine challenges infusedthe trial with fundamental unfairness.
Respondent argues (Br. 24, 32-35) that this Court is foreclosed from addressingthat issue because, in the court of appeals, the government conceded thata violation of Rule 24 would offend due process. The court of appeals, however,did not accept that concession, but decided the due process issue on themerits. See Pet. App. 9a. The government challenged that holding in a petitionfor rehearing, and then properly raised it in the petition for a writ ofcertiorari filed in this Court. The issue has been briefed here, and thereis no barrier to its consideration on the merits. Cf. United States v. Wells,519 U.S. 482, 487-488 (1997); United States v. Williams, 504 U.S. 36, 41-43(1992).
In contending that there was a due process violation in this case, respondentrelies principally (Br. 25) on Logan v. Zimmerman Brush Co., 455 U.S. 422(1982), but that case is far different from this one. Unlike in this case,where respondent concedes that the jury that convicted him was completelyimpartial notwithstanding the alleged procedural violation, in Logan theviolation of the plaintiff's procedural rights had the effect of completelyextinguishing his constitutionally protected property interests. See id.at 427-428, 431. Contrary to respondent's submission, Logan should not beread to transform a mistaken district court ruling under a code of criminalprocedure into a constitutional due process violation. As we note in ouropening brief (at 24-25), such a ruling would have a significant impacton the criminal justice system and on the federal courts' habeas corpusdocket.


C. Any Error In This Case Was Harmless

Assuming that the district court's action during jury selection impairedrespondent's peremptory challenge rights, giving rise to a violation eitherof Rule 24 or of the Due Process Clause, any such impairment of respondent'sright to exercise peremptory challenges is subject to the harmless-errorstandard and, in this case, is harmless.10 Respondent does not dispute thathe was tried by an impartial jury, notwithstanding the trial court's error.Nor does he explain why his ability to make free use of nine (out of ten)peremptory challenges should not be regarded as a "substantial"enjoyment of his peremptory challenges rights. Instead, he contends thatany impairment of peremptory challenge rights constitutes "structural"error that is reversible per se; that even if a showing of case-specificprejudice is appropriate, it is met here because the error affected thecomposition of the jury; and, finally, that his failure to object to anyof the seated jurors and request an additional challenge is irrelevant tohis ability to obtain reversal. Each of those claims is incorrect.

1. Structural error. Errors in procedure, even those that violate importantconstitutional rights, are subject to case-specific harmless-error analysisunless the right affected is one of the "basic protections [withoutwhich] a criminal trial cannot reliably serve its function as a vehiclefor determination of guilt or innocence, and no criminal punishment maybe regarded as fundamentally fair." United States v. Olano, 507 U.S.725, 735 (1993); see Chapman v. California, 386 U.S. 18 (1967). Respondentasserts that the error in this case is "structural" because "theharm cannot be measured in any meaningful way" (Br. 9) and becauseof "the essential nature of peremptory challenges in jury selection"(id. at 28). The impairment of peremptory challenges, however, cannot beviewed as "so intrinsically harmful as to require automatic reversal(i.e., 'affect substantial rights') without regard to [its] effect on theoutcome." Neder v. United States, 119 S. Ct. 1827, 1833 (1999).
The impairment of a defendant's peremptory challenges can result in case-specificreversible harm where the defendant cannot prevent a biased juror from beingseated on the jury because the defendant has exhausted his peremptory challenges.See U.S. Br. 22 n.6, 37 n.14. But where that form of harm does not materialize,the impairment of peremptory challenges does not alter the basic frameworkof the trial. The defendant continues to enjoy counsel, an unbiased jury,and the other protections afforded by the Constitution and rules of procedure.While the defendant may have a subjective discomfort with a particular juror,11the infringement of that value does not rise the level of the structuralerrors found by this Court, such as the total denial of counsel or the givingof a defective reasonable doubt instruction. See Neder, 119 S. Ct. at 1833(listing the "very limited class of cases" finding "structuralerror"). It certainly does not justify a rule of per se reversal whenthe degree of harm is balanced against the "substantial social costs"of a reversal following a trial in which there was a "fair determinationof the issue of guilt or innocence." United States v. Mechanik, 475U.S. 66, 72 (1986); see McDonough Power Equip., Inc. v. Greenwood, 464 U.S.548, 555-556 (1984) ("A trial represents an important investment ofprivate and social resources, and it ill serves the important end of finalityto wipe the slate clean simply to recreate the peremptory challenge process").12

2. Change in the composition of the jury. Respondent further contends (Br.34-37) that, if some form of harmless-error analysis is required, "theonly possible measure in assessing harm or prejudice is to analyze whetherthe jury composition could have changed as a result of the error."Id. at 10 (citing Gray v. Mississippi, 481 U.S. 648, 665 (1987)). He asserts(id., at 36) that "[i]n the context of the peremptory challenges, therecan be no other way." Ibid. Gray does not support respondent's contention.13
In Gray, the trial court erroneously excluded for cause a juror who wasqualified to serve in a capital case despite a general philosophical oppositionto the death penalty. 481 U.S. at 653-655. The Court held that such an erroneousexclusion for cause violated the defendant's Sixth Amendment right to ajury composed of a fair cross-section of the community. Id. at 657-659.It reversed the conviction, viewing the exclusion of the juror there asa constitutional error that "goes to the very integrity of the legalsystem" to which "harmless-error analysis cannot apply."Id. at 668. In Ross v. Oklahoma, 487 U.S. 81 (1988), however, this Courtexpressly "decline[d] to extend the rule of Gray beyond its context:the erroneous 'Witherspoon exclusion' of a qualified juror in a capitalcase. We think the broad language used by the Gray Court is too sweepingto be applied literally, and is best understood in the context of the factsthere involved." 487 U.S. at 87-88.14 In view of the high costs tosociety and to victims of crimes when appellate courts reverse convictions(see U.S. Br. 35-37), this Court should not adopt a rule requiring the reversalof convictions simply because of the possibility that some other legallyqualified juror might have sat on the case.

3. Failure to request an additional challenge. Finally, respondent arguesthat it is not a sufficient showing of harmlessness that the record revealsthat he made no objection to the jury that sat, or any request for an additionalperemptory challenge to exercise against another prospective juror.15 Contraryto respondent's claim, such a request would not have asked "for somethingjust expressly denied," Resp. Br. 38; rather, such a request wouldhave been a concrete manifestation that respondent believed himself aggrievedby the erroneous ruling on juror Gilbert.
As we argued in our opening brief (at 37-38), at least where a defendanthas the untrammeled exercise of nine of ten peremptory challenges, therecan be no finding that an impairment of a single challenge, which was usedto remove a biased potential juror, establishes an error that "affect[ed]substantial rights." Fed. R. Crim. P. 52(a). To the contrary, a defendantin that position has had the substantial right to participate in the selectionof the jury through peremptory challenges, notwithstanding the trial court'serror in denying the challenge for cause. But even if the impairment ofone peremptory challenge could be shown to "affect substantial rights,"there should be some indication in the record that the defendant was dissatisfiedwith the jury ultimately chosen. Absent that, "we are left with noidea whether [respondent] 'wasted' a peremptory, let alone wanted to strikeanother venireman who was not to his liking (for a legitimate reason) butcouldn't do so because he was out of challenges." Pet. App. 16a (Rymer,J., dissenting). Any error, therefore, was harmless.16
* * * * *
For the foregoing reasons and those stated in our opening brief, the judgmentof the court of appeals should be reversed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General

NOVEMBER 1999




1 See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 137 n.8 (1994) (purpose"is to permit litigants to assist the government in the selection ofan impartial trier of fact") (quoting from Edmonson v. Leesville ConcreteCo., 500 U.S. 614, 620 (1991)); Georgia v. McCollum, 505 U.S. 42, 57 (1992)(peremptory challenges are a "means to the constitutional end of animpartial jury and a fair trial"); Frazier v. United States, 335 U.S.497, 505 (1948) ("the right is given in aid of the party's interestto secure a fair and impartial jury").

2 In addition, the Constitution prevents the defendant from removing jurorsbased on race, ethnicity, or gender, Georgia v. McCollum, 505 U.S. 42 (1992);see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994); Hernandez v. NewYork, 500 U.S. 352 (1991), even though that restriction may result in thedefendant's subjective discomfort with the jury.

3 These decisions also make plain that judicially imposed procedures restrictingthe unfettered opportunity to exercise peremptory challenges have long beenupheld. Respondent therefore errs in arguing (Br. 20-21) that a holdingthat defendant must use a peremptory challenge to cure a trial court's denialof a for-cause challenge must be enacted by Congress rather than imposedthrough decisions of the courts. "It is not necessary to multiply illustrationsof the familiar principle [that peremptory challenge procedures may be 'regulatedby the common law'] which while safeguarding the essence of the constitutionalrequirements, permits readjustments of procedure consistent with their spiritand purpose." United States v. Wood, 299 U.S. 123, 145 (1936).

4 The ability of peremptory challenges to provide that cushion in the juryselection process also may be a partial explanation for the fact that Rule24 increases the number of peremptory challenges from three to ten to twentyas the seriousness of the offense escalates from misdemeanor to felony tocapital felony. Respondent argues (Br. 15) that "the logical reasonfor the graduated number of peremptory challenges is the increased needfor the subjective perception of fairness as criminal exposure rises."That is not necessarily so. It is equally logical to conclude that subtleinfluences of bias or prejudice will more likely affect jurors when thecharge involves a more serious offense against the community. The uncertaintysurrounding determinations of for-cause challenges becomes more significantand thus there is a greater need to have more challenges available for defendantsto use in helping achieve an objectively fair and impartial jury.

5 In this case, for example, juror Gilbert's comments that he understoodthe presumption of innocence "in theory" (J.A. 133) may reflectlittle more than a particularly candid expression of what many jurors feelwhen they are asked to discard prior beliefs and impressions before enteringthe jury room. See United States v. Dozier, 672 F.2d 531, 548-549 (5th Cir.1982) (upholding denial of a for-cause challenge notwithstanding juror's"unusually candid skepticism toward human capacity for emptying thesubconscious at a moment's notice," given juror's agreement to decidethe case based on the evidence and instructions; "[w]e can ask no moreof those who must assume, for the duration of a trial, the almost superhumanposture of complete impartiality").

6 If the feared bias of the "objectively" qualified juror exhibiteditself during jury deliberations, the defendant would have no remedy. FederalRule of Evidence 606(b) precludes inquiry after trial into the "effectof anything upon [a] juror's mind or emotions as influencing the juror toassent to or dissent from the verdict or indictment or concerning the juror'smental processes in connection therewith," with the exception of improperoutside influences on jury deliberations. See Tanner v. United States, 483U.S. 107, 120-121 (1987). A defendant's use of a peremptory challenge toexcuse such a juror is an eminently proper function of that rule-based right.

7 Respondent also suggests that our "proposed rule invites the prosecutorto routinely oppose a defendant's for-cause challenges, knowing that thedefendant will bear the burden of the trial court error." Br. 21; seealso id. at 22 (envisioning a "continuous flow of objections to legitimatefor-cause challenges"). Such a prediction of prosecutorial "gamesmanship"(ibid.) runs counter to this Court's consistent view that, absent clearevidence to the contrary, courts presume that federal prosecutors will "properlydischarge[] their official duties," United States v. Armstrong, 517U.S. 456, 464 (1996); United States v. Mezzanatto, 513 U.S. 196, 210 (1995)("tradition and experience justify our belief that the great majorityof prosecutors will be faithful to their duty"). Respondent's speculationalso underestimates federal trial judges, who would doubtless take noticeif a prosecutor were offering repeated unfounded arguments during jury selectionand who have ample means to deal with such abuses.

8 Respondent does not take issue with our discussion of state cases thatreach generally similar results to the rule we propose here. See U.S. Br.20-21 n.5 & App. 4a-6a. The prevalence of such approaches in the States,despite the absence of express statutory provisions to that effect, supportsthe view that courts can formulate procedures that reinforce the role ofperemptory challenges as a backstop for the trial judge's rulings on for-causechallenges. Amici National Association of Criminal Defense Lawyers, et al.,take issue with our categorization of a few of the state cases and withour reliance on post-Ross state cases, which, they argue, responded to Rossby judicially changing the rules. See Amici Br. 13 n.11. Amici apparentlyhave no quarrel with our characterization of the vast majority of the 26States that decline to treat an erroneous denial of a for-cause challengeas reversible error when the contested juror was removed by defendant'suse of a peremptory challenge. The important point to draw from the statecases that amici chooses to dispute is that they do not support respondent'sposition of automatic reversal if a peremptory challenge is used to curean erroneous for-cause ruling. See Sams v. United States, 721 A.2d 945,951 (D.C. 1998) (noting that "denial or impairment of the peremptorychallenge right is a 'trial error' within the meaning of [Arizona v.] Fulminante[499 U.S. 279 (1991)]," and not a "'structural error'" andthus is "subject to harmless error review when it has been properlypreserved"), petition for cert. pending, No. 98-8712; State v. Pelletier,552 A.2d 805, 809 (Conn. 1989) (rejecting defendant's contention of errorin use of peremptory challenges to cure erroneous for-cause rulings becausedefendant received more than allotted number of peremptories, the challengeon the for-cause rulings was without merit, and the defendant never identifiedany biased jurors who actually served); State v. Broom, 533 N.E.2d 682,695 (Ohio 1988) (to make out a constitutional violation, "the defendantmust use all of his peremptory challenges and demonstrate that one of thejurors seated was not impartial"), cert. denied, 490 U.S. 1075 (1989);Adanandus v. Texas, 866 S.W.2d 210, 220 (Tex. Ct. Crim. App. 1993) (to presentreversible error in for-cause challenge, defendant must show exhaustionof all peremptories, the trial court denied request for more, and a biasedjuror sat), cert. denied, 510 U.S. 1215 (1994).
Finally, amici are simply incorrect that only Ross adopted a "cure-or-waive"rule. See, e.g., State v. Baker, 935 P.2d 503, 510 (Utah 1997); State v.DiFrisco, 645 A.2d 734, 753 (N.J. 1994) (noting that "the rule recognizedby several federal circuits and at least twenty-two other states" isthat, "for the forced expenditure of a peremptory challenge to constitutereversible error * * * , a defendant must demonstrate that a juror who waspartial sat as a result of the defendant's exhaustion of peremptory challenges")(citing cases), cert. denied, 516 U.S. 1129 (1996).

9 Respondent is incorrect (Br. 16-17) that Smith v. United States, 360 U.S.1 (1959), requires the rule of lenity to be applied to rules of procedure.In Smith, the Court considered whether the federal kidnapping statute, 18U.S.C. 1201, established one offense with varying possible punishments,or two separate offenses with different maximum punishments. See 360 U.S.at 6-9. The Court's answer to that question determined when a defendantneeded to be charged by formal indictment, and when (or if) he could becharged by information. The Court construed the statute as defining oneoffense with a range of possible punishments. Ibid. One of those possiblepunishments was the death penalty. Thus, because under the Fifth Amendmentand Federal Rule of Criminal Procedure 7(a) no one may be prosecuted fora capital offense except by indictment, the Court held that all prosecutionsunder the statute needed to proceed by indictment. Ibid. That the Court'sholding had consequences for the application of Rule 7(a) does not meanthat the Court intended the rule of lenity to apply to all procedural rights.It did not, and none of this Court's cases since Smith have suggested thatthe lenity principle should be applied to the construction of the FederalRules of Criminal Procedure.

10 Federal Rule of Criminal Procedure 52(a) provides that "[a]ny error,defect, irregularity or variance which does not affect substantial rightsshall be disregarded." To affect "substantial rights," aviolation ordinarily "must have been prejudicial: It must have affectedthe outcome of the district court proceedings." United States v. Olano,507 U.S. 725, 734 (1993). See U.S. Br. 27-28.

11 That is not necessarily the case here, however, where respondent didnot object to the seating of any of the jurors after the completion of theinitial jury selection. J.A. 182; see pp. 16-18, infra.

12 Respondent's reliance (Br. 9, 30) on this Court's reversal of convictionsfollowing a race-based peremptory challenge, without conducting harmless-erroranalysis, is misplaced. This Court has explained that "racial discriminationin the selection of jurors casts doubt on the integrity of the judicialprocess, and places the fairness of a criminal proceeding in doubt."Powers v. Ohio, 499 U.S. 400, 411 (1991) (internal quotation marks and citationomitted). "The overt wrong, often apparent to the entire jury panel,casts doubt over the obligation of the parties, the jury, and indeed thecourt to adhere to the law throughout the trial of the cause." Id.at 412; see also Mechanik, 475 U.S. at 70-71 n.1 (noting uniquely "pernicious"effects of racial discrimination on a grand jury). Nothing of the kind canbe said of a trial judge's error in assessing the impartiality of one juror,followed by the removal of the juror through a peremptory challenge.

13 Nor is there merit to respondent's thesis that there is no other wayto gauge prejudice. As we explained in our opening brief (at 31), the Courtconcluded in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548(1984), that the proper question, when voir dire failed to elicit necessaryinformation during jury selection, is whether the error "affect[ed]the essential fairness of the trial," id. at 553, and that such a showingcould be made if proper answers on voir dire would have enabled a challengefor cause, but not if proper answers would only have influenced the exerciseof peremptory challenges. Id. at 555-556. Other than to note in a parentheticalthat Greenwood was a civil case (see Resp. Br. 23 n.6), respondent providesno explanation of why the approach of Greenwood could not apply here.

14 The Ross Court cited with approval the observation in Justice Scalia'sdissent in Gray (481 U.S. at 678) that "the statement that any errorwhich affects the composition of the jury must result in reversal defiesliteral application." Ross, 487 U.S. at 87 n.2.

15 At the close of the initial jury selection, the trial court read thenames of the jurors and the selected alternate and asked:
THE COURT: All right. Any objection now to any of those jurors?
MR. GARCIA [respondent's counsel]: None from us.
THE COURT: Any further objection to our procedures?
MR. KIRBY [the prosecutor]: No, Your Honor.
THE COURT: All right.
J.A. 182. If he had objected to any of the selected jurors, respondent couldhave asked the court for an additional peremptory challenge under Fed. R.Crim. P. 24(b) ("If there is more than one defendant, the court mayallow the defendants additional peremptory challenges and permit them tobe exercised separately or jointly.").

16 Respondent asserts (Br. 39) that he "expressly asked for an additionalperemptory challenge after the petit jury was called," thus indicatinghis "dissatisfaction with the panel and a desire for compositionalchange." Respondent's statement, however, was made only after jurorFinck (an originally selected juror) failed to appear, and respondent askedthe court to select a new trial juror from the next three jurors on thelist, while leaving the alternate in place. J.A. 185-186; see also J.A.199. The court rejected that suggestion, and instead replaced Finck withthe alternate juror. J.A. 186. Respondent explained that the advantage ofhis proposal would have been that it "gets us now into the area wherewe finally in this jury panel have a Hispanic." Ibid. But he did notask for a peremptory challenge to strike the alternate whom the court madeinto a regular juror. Because "the right * * * of challenge does notnecessarily draw after it the right of selection, but merely of exclusion,"United States v. Marchant, 25 U.S. (12 Wheat.) 480, 482 (1827), respondent'srequest was insufficient to show an objection to the panel as selected.