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
OCTOBER TERM, 1998


No. 98-1255

UNITED STATES OF AMERICA, PETITIONER

v.

ABEL MARTINEZ-SALAZAR



ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



PETITION FOR A WRIT OF CERTIORARI



The Solicitor General, on behalf of the United States of America, petitionsfor a writ of certiorari to review the judgment of the United States Courtof Appeals for the Ninth Circuit in this case.
OPINION BELOW
The opinion of the court of appeals (App., infra, 1a-19a) is reported at146 F.3d 653.

The judgment of the court of appeals was entered on May 28, 1998. A petitionfor rehearing was denied on October 7, 1998 (App., infra, 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 jurisdictionof this Court is invoked under 28 U.S.C. 1254(1).
STATUTE AND RULES INVOLVED
Section 2111 of Title 28 of the United States Code provides: "On thehearing of any appeal or writ of certiorari in any case, the court shallgive judgment after an examination of the record without regard to errorsor defects which do not affect the substantial rights of the parties."
Rule 24(b) of the Federal Rules of Criminal Procedure provides:
If the offense charged is punishable by death, each side is entitled to20 peremptory challenges. If the offense charged is punishable by imprisonmentfor more than one year, the government is entitled to 6 peremptory challengesand the defendant or defendants jointly to 10 peremptory challenges. Ifthe offense charged is punishable by imprisonment for not more than oneyear or by fine or both, each side is entitled to 3 peremptory challenges.If there is more than one defendant, the court may allow the defendantsadditional peremptory challenges and permit them to be exercised separatelyor jointly.
Rule 52(a) of the Federal Rules of Criminal Procedure provides: "Anyerror, defect, irregularity or variance which does not affect substantialrights shall be disregarded."

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)). App., infra, 2a. He was sentenced to 123 months'imprisonment. Gov't C.A. Br. 3-4. Respondent appealed, and the court ofappeals found an impairment of his right of peremptory challenges that,it held, "require[d] automatic reversal." App., infra, 3a.
1. Respondent and a co-defendant were tried and convicted on drug and weaponscharges. Before trial, prospective jurors filled out a jury questionnaire.App., infra, 3a. A potential juror named Don Gilbert indicated on his questionnairethat he would favor the prosecution. Ibid. The district court subsequentlyadvised the potential jurors, as a group, that the indictment is not evidence,that the government bears the burden of proof beyond a reasonable doubt,that defendants are presumed innocent, and that the jury is to determineguilt or innocence based on the evidence and the law as explained to itby the court. 12/7/93 Tr. 38-41. Gilbert gave no response when the districtcourt asked whether any potential juror disagreed with those legal principles.Id. at 40, 42. Gilbert also gave no response when the district court askedwhether any juror believed that he could not serve fairly and impartially.Id. at 44.
The district court also questioned Gilbert individually. During that questioningGilbert indicated that "all things being equal, [he] would probablytend to favor the prosecution," App., infra, 4a, that he assumed that"people are on trial because they did something wrong," id. at5a, and that he did not know whether a juror holding his opinions couldgive the defendants a fair trial, id. at 4a. Gilbert also indicated, however,that he did not disagree with the principle that the government bore theburden of proof beyond a reasonable doubt, and that he understood in theorythat defendants are presumed innocent. Id. at 4a-5a.
Respondent and his co-defendant challenged Gilbert for cause. The districtcourt denied the challenge on the ground that Gilbert had indicated thathe would be able to follow the court's instructions. 12/7/93 Tr. 102-103.Respondent and his co-defendant were jointly allotted ten peremptory challengesfor use in the selection of regular jurors, and an additional challengefor use in the selection of the alternate juror. App., infra, 3a. The governmentwas allotted six peremptory challenges for use in the selection of regularjurors, and an additional challenge for use in the selection of an alternate.12/7/93 Tr. 107. The defense used one peremptory challenge to remove Gilbert,and eventually exhausted its allotted eleven challenges. App., infra, 6a.

2. The court of appeals reversed respondent's convictions based on the impairmentof respondent's right of peremptory challenge. App., infra, 1a-19a. It firstheld that the district court abused its discretion by refusing to excuseGilbert for cause. Id. at 7a-8a. Relying on this Court's decision in Rossv. Oklahoma, 487 U.S. 81 (1988), the court held that the error did not constitutea violation of the Sixth Amendment, because Gilbert did not actually siton the jury. App., infra, 9a. The court held, however, that the error amountedto a violation of respondent's right to due process under the Fifth Amendment.The court reasoned that the defense was forced to use a peremptory challengeto remove a juror who should have been removed for cause, and that it wasthereby effectively denied a peremptory challenge to which it was entitledby law.1 Id. at 9a-14a. The court held that, because respondent was deniedthe right to use his full complement of peremptory challenges as he sawfit, automatic reversal was required without any inquiry into harmless error.Id. at 14a-15a.
Judge Rymer dissented. App., infra, 15a-19a. She concluded that the lossof a 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 due-processviolation, or even a denial of the right to peremptory challenges providedby Rule 24 of the Federal Rules of Criminal Procedure. App., infra, 17a-18a.

The court of appeals held that, when a defendant uses a peremptory challengeto remove a juror who should have been excused for cause, and he later exhaustshis allotted challenges, the defendant's Fifth Amendment due-process rightshave been violated and the violation compels reversal, without any inquiryinto harmless error. App., infra, 3a. That holding creates a square conflictamong the courts of appeals. The Eighth, Tenth, and Eleventh Circuits haveall held that such an error does not amount to a constitutional violationand does not require reversal unless prejudice is shown. The court of appeals'holding is also incorrect. A defendant's right to exercise peremptory challengesis not of constitutional dimension, and his exhaustion of his peremptorychallenges by using one to remove a juror who should properly have beenremoved for cause is not even a clear impairment of his rule-based rights.Morever, this Court's harmless-error cases, a federal statute, 28 U.S.C.2111, and Federal Rule of Criminal Procedure 52(a) make clear that all errorsin federal criminal trials are subject to harmless-error analysis. Undera proper application of harmless-error doctrine, the error in this casedid not affect respondent's "substantial rights," Fed. R. Crim.P. 52(a), and did not warrant reversal.2 Because the issue in this caseis recurring and important, the court of appeals' erroneous holding warrantsthis Court's review.
1. There is a square conflict among the courts of appeals about whetherreversal is required when the trial court in a criminal case erroneouslydenies a defense motion to remove a potential juror for cause, thereby causingthe defendant to use a peremptory challenge to remove that potential juror.The Ninth Circuit held in this case that if the defense later exhausts itschallenges, such an error amounts to a violation of the defendant's due-processrights and requires automatic reversal. App., infra, 1a-19a. The Fifth Circuithas recently articulated the same principle of per se reversal (without,however, resting on a due-process theory). See United States v. Hall, 152F.3d 381, 408 (1998) (relying on United States v. Nell, 526 F.2d 1223, 1229(5th Cir. 1976)), petition for cert. pending, No. 98-7510 (filed Dec. 29,1998).
In contrast, the Eighth, Tenth, and Eleventh Circuits have held that suchan error is not of constitutional dimension and does not require reversalabsent a showing of prejudice-generally speaking, unless a biased juroris seated. See, e.g., United States v. Gibson, 105 F.3d 1229, 1233 (8thCir. 1997); United States v. McIntyre, 997 F.2d 687, 698 n.7 (10th Cir.1993), cert. denied, 510 U.S. 1063 (1994); United States v. Farmer, 923F.2d 1557, 1566 & n.20 (11th Cir. 1991).3 Respondent's convictions wouldhave been affirmed in any of the latter three circuits.4

2. The decision of the court of appeals rests on two propositions: thatrequiring respondent to use a peremptory challenge to remove a juror whoshould have been excused for cause violated his due-process rights, andthat such an error can never be harmless. Both propositions are incorrect.
a. A defendant has no constitutional right to peremptory challenges; theexistence of any such right is solely the product of statute or rule. J.E.B.v. Alabama ex rel. T.B., 511 U.S. 127, 137 n.7 (1994); Ross v. Oklahoma,487 U.S. 81, 88 (1988); Stilson v. United States, 250 U.S. 583, 586 (1919).In Ross, this Court rejected the view that a state court's erroneous refusalto remove a juror for cause, thereby requiring the defendant to use oneof his peremptory challenges to remove the juror, violated the defendant'sSixth Amendment right to an impartial jury. 487 U.S. at 87-88. "Solong as the jury that sits is impartial, the fact that the defendant hadto use a peremptory challenge to achieve that result does not mean the SixthAmendment was violated." Id. at 88. The Court in Ross also concludedthat requiring Ross to use a peremptory challenge to remove a juror whoshould have been excused for cause did not deprive Ross of his rights underthe Due Process Clause. Id. at 89-91. The Court reached that result becausethe Oklahoma courts require defendants to use a peremptory challenge torectify a trial court's error in denying a for-cause challenge, id. at 90,and Ross, therefore, "received all that [state] law allowed him."Id. at 91.
Even assuming that the federal rule is different, and that respondent'sright to exercise peremptory challenges was impaired by the district court'serroneous for-cause ruling, that impairment does not amount to a violationof respondent's rights under the Due Process Clause. The right of federalcriminal defendants to exercise peremptory challenges is created by federalrule, not the Constitution. Such challenges "are not constitutionallyprotected fundamental rights; rather, they are but one state-created meansto the constitutional end of an impartial jury and a fair trial." Georgiav. McCollum, 505 U.S. 42, 57 (1992). Although the violation of a non-constitutionalrule of procedure may in unusual circumstances rise to the level of a due-processviolation, see, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)(denial of state-law right to adjudicatory procedures), the general ruleis that such a violation does not make out a due-process claim unless theviolation "results in prejudice so great as to deny a defendant hisFifth Amendment right to a fair trial." United States v. Lane, 474U.S. 438, 446 n.8 (1986). The district court's error in refusing to excusea potential juror for cause simply required the defense to use one of itsperemptory challenges to achieve the same purpose; that consequence cannotreasonably be said to have deprived respondent of a fair trial.
Indeed, it is not even clear that respondent's rule-based right to exercisechallenges was impaired. This Court has not decided whether, as a matterof federal law, defendants must use a peremptory strike to remove a biasedjuror in order to challenge on appeal a trial court's denial of a for-causechallenge. The few decisions of the courts of appeals expressly addressingthe issue appear to point in different directions. Compare Frank v. UnitedStates, 42 F.2d 623, 630 (9th Cir. 1930) ("It is uniformly held thatwhere challenge for actual bias is denied and the defendant has an opportunityto eliminate the juror by exercising a peremptory challenge and fails todo so, he cannot thereafter complain of the ruling denying his challengeunless and until he has otherwise exercised all his peremptory challenges.")(citing numerous state cases),5 with, e.g., United States v. Mobley, 656F.2d 988, 989-990 (5th Cir. 1981) (permitting defendant to raise objectionon appeal to trial court's denial of for-cause challenges where defendantexhausted peremptory challenges but did not use them against jurors whomhe had challenged for cause).
The better approach is to require defendants to use their peremptory challengesto cure trial courts' erroneous denials of for-cause challenges. As theCourt noted 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 cure erroneous refusals by the trial court to excuse jurors for cause."Id. at 90. Such a requirement reasonably "subordinates the absolutefreedom to use a peremptory challenge as one wishes to the goal of empanelingan impartial jury." Ibid.
In any event, a defendant's right to exercise peremptory challenges wouldbe impaired only if the defendant wanted to remove one of the jurors whoactually sat, but could not do so only because he had exhausted his peremptorychallenges in removing the potential juror who should have been excusedfor cause. The mere fact that a defendant exhausts his peremptory challengesdoes not establish that his exercise of peremptory challenges has been impairedby the erroneous denial of a for-cause challenge. It may well be that thedefendant in such a case is content with the jurors who are seated, andwould not have exercised a peremptory challenge against any of them evenif the district court had properly removed the disputed potential jurorfor cause. It is for that reason that many courts properly require "someobjection from the defendant after the exhaustion of his peremptory challenges."Frank, 42 F.2d at 631. See also, e.g., id. at 630-631 (citing numerous statecases); Turro v. State, 950 S.W.2d 390, 406 (Tex. App. 1997, pet. ref'd);Trotter v. State, 576 So. 2d 691, 692-693 (Fla. 1990); People v. Schafer,119 P. 920, 921 (Cal. 1911) ("It is entirely consistent with the recordthat the 12 jurors who actually tried the case were absolutely satisfactoryto defendant, and that he desired all of them to serve, and would not haveexcused any one of them if he had been given the opportunity. After judgment,the contrary should not be presumed.").6
b. The court of appeals also erred by applying a rule of automatic reversal.The decisions of this Court, and a controlling federal statute and rule,establish that errors impairing the exercise of peremptory challenges aresubject to harmless-error analysis.
Like many of the decisions that apply a rule of per se reversal to errorsimpairing the exercise of peremptory challenges, the decision of the courtof appeals in this case relied heavily on this Court's dictum in Swain v.Alabama, 380 U.S. 202, 219 (1965). App., infra, 9a-10a ("[A] denialor impairment of the right to exercise peremptory challenges 'is reversibleerror without a showing of prejudice.'") (quoting Swain, 380 U.S. at219). Swain in turn relied upon a series of early decisions from this Courtreversing criminal convictions on the basis of errors impairing defendants'exercise of their peremptory challenges. 380 U.S. at 219 (citing Harrisonv. United States, 163 U.S. 140, 142 (1896); Gulf, Colorado & Santa FeRy. v. Shane, 157 U.S. 348, 351 (1895); Lewis v. United States, 146 U.S.370, 376 (1892)).
The early decisions of this Court upon which the dictum in Swain rests,however, were "decided long before the adoption of Federal Rule[] ofCriminal Procedure * * * 52, and prior to the enactment of the harmless-errorstatute, 28 U.S.C. § 2111." Lane, 474 U.S. at 444 (overrulingsimilar early case holding that misjoinder of charges requires automaticreversal). Section 2111 of Title 28 provides that "[o]n the hearingof any appeal or writ of certiorari in any case, the court shall give judgmentafter an examination of the record without regard to errors or defects whichdo not affect the substantial rights of the parties." Rule 52(a) providesthat "[a]ny error, defect, irregularity or variance which does notaffect substantial rights shall be disregarded." This Court has repeatedlyheld that all errors in federal criminal proceedings are subject to theharmless-error inquiry mandated by Section 2111 and Rule 52(a).7 See Bankof Nova Scotia v. United States, 487 U.S. 250, 254-255 (1988) ("[A]federal court may not invoke supervisory power to circumvent the harmless-errorinquiry prescribed by Federal Rule of Criminal Procedure 52(a). * * * Rule52 is, in every pertinent respect, as binding as any statute duly enactedby Congress, and federal courts have no more discretion to disregard theRule's mandate than they do to disregard constitutional or statutory provisions.");Lane, 474 U.S. at 444-449 & n.11; cf. Johnson v. United States, 520U.S. 461, 466 (1997) (rejecting claim that Court should carve out exceptionto Rule 52 for "structural error[s]"; Rule 52 "by its termsgoverns direct appeals from judgments of conviction in the federal system,and therefore governs this case. * * * Even less appropriate than an unwarrantedexpansion of the Rule would be the creation out of whole cloth of an exceptionto it, an exception which we have no authority to make.").
More specifically, this Court has relied upon Section 2111 and Federal Ruleof Civil Procedure 61-a civil analogue to Rule 52(a)-in determining whetheran impairment of the exercise of peremptory challenges justified grantinga new trial in a civil case. See McDonough Power Equip., Inc. v. Greenwood,464 U.S. 548, 553 (1984) ("We have also come a long way from the timewhen all trial error was presumed prejudicial and reviewing courts wereconsidered citadels of technicality. The harmless-error rules adopted bythis 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.") (quotationmarks and citations omitted). Those authorities establish that the courtof appeals erred by applying a rule of per se reversal rather than conductingthe inquiry, required by this Court's cases, by Section 2111, and by Rule52(a), into whether any error affected respondent's substantial rights.
The error in this case did not affect respondent's substantial rights. Ingeneral, in order to affect substantial rights, an "error must havebeen prejudicial: It must have affected the outcome of the district courtproceedings." United States v. Olano, 507 U.S. 725, 734 (1993);8 see,e.g., United States v. Mechanik, 475 U.S. 66, 72 (1986). The error in thiscase cannot reasonably be supposed to have had any such effect.
Nor does the error in the present case fall within the narrow category offundamental constitutional errors that require reversal even if they haveno effect on the outcome of trial proceedings. See, e.g., Olano, 507 U.S.at 735 (referring to errors that deprive defendants of the "basic protections[without which] a criminal trial cannot reliably serve its function as avehicle for determination of guilt or innocence, and no criminal punishmentmay be regarded as fundamentally fair") (quoting Rose v. Clark, 478U.S. 570, 577-578 (1986)). One example of such an error is the seating,over the defendant's objection, of an actually biased juror. See, e.g.,Rose, 478 U.S. at 578; Parker v. Gladden, 385 U.S. 363, 366 (1966). Butwhere no actually biased juror is seated, errors affecting the exerciseof peremptory challenges will rarely, if ever, affect a substantial rightof a defendant. Cf. Ross, 487 U.S. at 91 n.5 (noting that Ross made no claimthat the "trial court repeatedly and deliberately misapplied the lawin order to force [him] to use his peremptory challenges to correct theseerrors").
It is undisputed in this case that all of the seated jurors were impartial.Even if respondent would have exercised one additional peremptory challengeagainst one of the jurors who sat, an error having only that consequencewould not "affect [respondent's] substantial rights," 28 U.S.C.2111, and would not justify reversal of respondent's convictions.

3. a. This case presents important and recurring issues of federal law.Defense challenges for cause are a feature of virtually every jury trial,and district courts often must rule on many such challenges in a singlecase. It should therefore not be surprising that the courts of appeals havefrequently grappled with the question whether and in what circumstancesthe erroneous denial of a for-cause challenge warrants reversal of a criminalconviction. See pp. 7-8, supra (citing cases); see also, e.g., United Statesv. Brooks, 161 F.3d 1240, 1246 (10th Cir. 1998); United States v. Horsman,114 F.3d 822, 825 (8th Cir. 1997), cert. denied, 118 S. Ct. 702 (1998);United States v. Cruz, 993 F.2d 164, 168-169 (8th Cir. 1993); United Statesv. Towne, 870 F.2d 880, 885 (2d Cir.), cert. denied, 490 U.S. 1101 (1989);United States v. Mercer, 853 F.2d 630, 632 (8th Cir.), cert. denied, 488U.S. 996 (1988) and 490 U.S. 1101 (1989). This Court should grant reviewto resolve the conflict among the courts of appeals on that question.
Granting review in this case would also provide the Court with an opportunityto shed light on a broader conflict among the courts of appeals on the questionwhether impairments of a criminal defendant's right to exercise peremptorychallenges require automatic reversal. Like the Ninth Circuit in this case,the First, Third, Fifth, Sixth, and Seventh Circuits have held that sucherrors are not subject to harmless-error analysis and therefore requireautomatic reversal. See, e.g., United States v. Serino, 161 F.3d 91, 93(1st Cir. 1998); United States v. Ruuska, 883 F.2d 262, 267-268 (3d Cir.1989); Hall, 152 F.3d at 408 (5th Cir.); United States v. McFerron, No.97-5161, 1998 WL 898493, at *4-*5 (6th Cir. Dec. 29, 1998); United Statesv. Underwood, 122 F.3d 389, 392 (7th Cir. 1997), cert. denied sub nom. UnitedStates v. Messino, 118 S. Ct. 2341 (1998); see also United States v. Annigoni,96 F.3d 1132, 1134 (9th Cir. 1996) (en banc). As noted above, the Eighth,Tenth, and Eleventh Circuits disagree.9 That conflict is of great significance.Peremptory challenges are exercised in every jury trial, and there are avariety of ways in which a district court might commit error affecting adefendant's exercise of peremptory challenges. The widespread disagreementamong the courts of appeals on the question whether such errors invariablyrequire reversal underscores the need for guidance from this Court.
b. The United States filed a petition for a writ of certiorari last Term,in United States v. Messino, No. 97-1641 (cert. denied June 22, 1998), seekingresolution of the broader conflict among the courts of appeals discussedabove. The respondents in Messino opposed certiorari, arguing that the casearose in an unusual context, i.e., the failure of a district court to givethe defendant accurate notice of jury-selection procedures, that there wasno conflict among the courts of appeals in that particular context, andthat a decision of the case might "require this Court to embark upona fact-resolution journey." 97-1641 Br. in Opp. at 14-16, 17. We acknowledgedthat there was no conflicting decision involving facts like those in Messino,although we believed that the legal issue of harmlessness was properly presented.97-1641 U.S. Reply Br. at 3. Whatever may be said about Messino, there isno question in this case that a conflict exists and that the legal issuepresented is a characteristic one in peremptory-challenge litigation.
As we have explained, see p. 7, supra, there is a square conflict amongthe courts of appeals about whether reversal is required in the circumstancesof this case: when the trial court in a criminal case erroneously deniesa defense motion to remove a potential juror for cause, thereby causingthe defendant to use a peremptory challenge to remove that potential juror.The Ninth Circuit-the largest court of appeals in the country-has now joinedthe Fifth Circuit in holding that such an error can never be harmless, whilethe Eighth, Tenth, and Eleventh Circuits have found such errors to be harmless.That conflict warrants this Court's resolution. And this case also properlyraises the broader conflict among the courts of appeals on whether errorsimpairing the exercise of a defendant's peremptory challenges are subjectto harmless-error analysis. The erroneous denial of a defendant's for-causechallenge to a potential juror is one of the most common settings in whichthat issue arises, and a decision here would illuminate the proper analysisof that issue.