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

No. 98-1255

In the Supreme Court of the United States
OCTOBER TERM, 1998

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

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
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

REPLY BRIEF FOR THE UNITED STATES

Respondent does not dispute the importance and the recurring nature of thequestion we have presented: whether a criminal defendant who exhausts hisperemptory challenges is entitled to automatic reversal of his convictionif he uses one of those challenges to remove a potential juror whom thedistrict court erroneously failed to remove for cause. Rather, he contends,for four principal reasons, that the Court should not decide that questionin this case. Respondent's contentions are without merit.
1. The decision below rests on two clearly expressed holdings: first, thatthe Due Process Clause was violated here, because respondent exhausted hisallotment of peremptory challenges and had to use one of those challengesto remove a potential juror whom the district court erroneously refusedto remove for cause, Pet. App. 13a-14a; and, second, that the "effectivedenial of [respondent's] right to his full complement of peremptory challenges""requires automatic reversal," id. at 15a, 14a. Respondent argues(Br. in Opp. 8-9), however, that this case does not properly present theissues that the court of appeals actually decided. Rather, respondent claims,the issue presented is a narrower one:
whether procedural due process is violated when the district court erroneouslydenies a for-cause challenge forcing the defendant to use a peremptory challengeto cure the error, exhausting all peremptory challenges in the process-andwhere there is unequivocal evidence in the record demonstrating that hewould have used the erroneously denied peremptory challenge on a differentjuror.
Id. at 9. That narrower issue, respondent further argues, does not meritthis Court's review. Id. at 10-16.
Respondent is mistaken. Nowhere did the court of appeals suggest that itsrule of automatic reversal is limited to cases in which the defendant notonly exhausted his peremptory challenges but also objected in the trialcourt to the composition of the jury that was selected. To the contrary,the court of appeals required only that respondent have exhausted his complementof peremptory challenges. Pet. App. 13a. See also Vansickel v. White, 166F.3d 953, 956 (9th Cir. 1999) (noting that Martinez-Salazar distinguishedearlier cases because in those cases the defendant "did not exhaustall of his peremptory challenges and hence his right was not denied or impairedin any way") (internal quotation marks omitted). And by reversing respondent'sconvictions without addressing the dissent's contention (Pet. App. 16a)that respondent failed to object to the jury that was seated, the courtimplicitly confirmed that it did not view such an objection as a prerequisiteto reversal.
Thus, the issue decided by the court of appeals, and presented by our petition,is whether a criminal defendant who exhausts his peremptory challenges isentitled to automatic reversal of his conviction if he uses one of thosechallenges to remove a potential juror whom the district court erroneouslyfailed to remove for cause. If the petition is granted to address that issue,respondent can seek to defend the judgment below on the narrower groundthat reversal is in any event required in such circumstances where the defendantalso objects in the trial court to the composition of the seated jury. Butrespondent's presentation of that narrower argument does not undercut theneed for this Court's review of the broader legal rule actually announcedand applied by the court of appeals. That is particularly true because respondent'snarrower argument for affirmance is both legally and factually flawed.1

2. Respondent argues (Br. in Opp. 10) that the petition should be deniedbecause the issue presented was not raised in a timely manner before thecourt of appeals. As we noted in the petition (Pet. 5 n.1), the governmentdid concede in a supplemental brief to the court of appeals that it wouldviolate due process to deprive a defendant of his full allotment of peremptorychallenges by requiring him to use a peremptory challenge to remove a jurorwho should have been removed for cause. In its initial brief in the courtof appeals, however, the government argued that respondent's convictionsshould not be reversed because respondent could not show prejudice meritingreversal. Gov't C.A. Br. 10-11. See also Pet. for Reh'g 6-12 (retractingdue process concession and reiterating argument that respondent failed toshow prejudice meriting reversal).
More importantly, although this Court normally does not review questionsthat were neither "pressed [n]or passed upon below," United Statesv. Williams, 504 U.S. 36, 41 (1992), the court of appeals squarely passedon the issues raised here: that respondent's due process rights were violatedand that such violations require automatic reversal. See Pet. App. 9a n.3("independently conclud[ing]" that respondent's due process rightswere violated), 14a-15a (adopting rule of automatic reversal without suggestingthat the government failed to preserve that issue). Those holdings are thereforeproperly presented for this Court's review. See, e.g., Williams, 504 U.S.at 40-45; Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1099 n.8(1991) ("Respondents argue that this issue was not raised below. ** * It suffices for our purposes that the court below passed on the issuepresented, particularly where the issue is" unsettled and important.)(citations omitted).

3. Respondent contends (Br. in Opp. 14) that there is no square conflictamong the courts of appeals, because "no Circuit * * * has squarelyheld that denial of peremptory challenges requires a harmless-error analysis."Respondent is incorrect. In United States v. Brooks, 161 F.3d 1240, 1245-1246(1998), for example, the Tenth Circuit found harmless the precise errorat issue here: the erroneous denial of a for-cause challenge, requiringa criminal defendant to use a peremptory challenge to remove the juror inquestion. See ibid. ("Even if the denial of the challenge for causewas error, [an issue the court did not decide,] it was harmless because[the juror in question] was removed by a peremptory challenge. * * * [T]hefact that [the defendant] could have used the peremptory he 'wasted' [toremove] other members of the venire is of no moment."). See also Getterv. Wal-Mart Stores, Inc., 66 F.3d 1119, 1122-1123 (10th Cir. 1995) (samein civil case), cert. denied, 516 U.S. 1146 (1996). Respondent's convictionswould certainly have been affirmed in the Tenth Circuit.2
Respondent's attempt (Br. in Opp. 14) to distinguish the decisions of theEighth and Eleventh Circuits also fails. Although those courts may not havementioned due process, both have categorically held that reversal is notrequired simply because a defendant exhausts his peremptory challenges anduses one of his challenges to remove a potential juror who should have beenexcused for cause. See, e.g., United States v. Horsman, 114 F.3d 822, 825(8th Cir. 1997) (even if trial court's denial of for-cause challenge requireddefendant to exercise peremptory challenge that would otherwise have beenused to remove another potential juror, that "does not state a groundfor reversal"), cert. denied, 522 U.S. 1053 (1998); United States v.Gibson, 105 F.3d 1229, 1233 (8th Cir. 1997); United States v. Farmer, 923F.2d 1557, 1566 (11th Cir. 1991).3 Respondent's convictions would certainlyhave been affirmed in those circuits as well.

4. Finally, respondent argues (Br. in Opp. 10-16) that review is unwarrantedbecause the decision of the court of appeals is correct. Given the conflictamong the courts of appeals on the important and recurring issue presented,however, review would be warranted even if the ruling below were correct.In any event, respondent's defense of the ruling below is unavailing.
Respondent does not dispute that the right of federal criminal defendantsto exercise peremptory challenges is created by federal rule, not the Constitution.See Pet. 8-9. Nor does respondent take issue with the principle that theviolation of a non-constitutional rule of procedure offends the Due ProcessClause only if the violation is so gravely prejudicial as to deny the defendanta fair trial. Pet. 9. It cannot reasonably be said that respondent was denieda fair trial by the error at issue here, which simply required him to useone of his peremptory challenges to remove a potential juror who shouldhave been removed for cause. Pet. 9-12. The court of appeals thus erredin concluding that due process was violated in this case.4
The court of appeals also erred by applying a rule of automatic reversal.Pet. 13-16. In arguing in support of a rule of automatic reversal, respondentrelies heavily on dicta from this Court's decision in Swain v. Alabama,380 U.S. 202 (1965), and on lower-court opinions that in turn rely on thatdicta. See Br. in Opp. 11-13, 15. The dicta in Swain, however, rests onearlier decisions of this Court that antedate both the enactment of theharmless-error statute and rules and this Court's modern decisions construingthose provisions. Pet. 12-14. This Court should grant review in order todetermine the validity of the lower courts' continuing reliance on thatlanguage in Swain.
* * * * *
For the reasons stated above and in the petition for a writ of certiorari,the petition should be granted.
Respectfully submitted.