United States v. Martinez-Salazar - Petition

Docket number: 
No. 98-1255
Supreme Court Term: 
1998 Term
Court Level: 
Supreme Court

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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



PETITION FOR A WRIT OF CERTIORARI



SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
ROY W. MCLEESE III
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 conviction when he uses a peremptory challenge to remove a potential juror whom the district court erroneously failed to remove for cause, and he ultimately exhausts 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, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.
OPINION BELOW
The opinion of the court of appeals (App., infra, 1a-19a) is reported at 146 F.3d 653.
JURISDICTION
The judgment of the court of appeals was entered on May 28, 1998. A petition for rehearing was denied on October 7, 1998 (App., infra, 20a-21a). On January 4, 1999, Justice O'Connor extended the time within which to file a petition for a writ of certiorari to and including February 4, 1999. The jurisdiction of 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 the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or 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 to 20 peremptory challenges. If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. If the offense charged is punishable by imprisonment for not more than one year 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 defendants additional peremptory challenges and permit them to be exercised separately or jointly.
Rule 52(a) of the Federal Rules of Criminal Procedure provides: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."
STATEMENT
After a jury trial in the United States District Court for the District of Arizona, respondent Abel Martinez-Salazar was found guilty of conspiracy to possess heroin with intent to distribute it (21 U.S.C. 846), possession of heroin with intent to distribute it (21 U.S.C. 841(a)(1)), and using or 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 of appeals 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 weapons charges. Before trial, prospective jurors filled out a jury questionnaire. App., infra, 3a. A potential juror named Don Gilbert indicated on his questionnaire that he would favor the prosecution. Ibid. The district court subsequently advised 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 determine guilt or innocence based on the evidence and the law as explained to it by the court. 12/7/93 Tr. 38-41. Gilbert gave no response when the district court asked whether any potential juror disagreed with those legal principles. Id. at 40, 42. Gilbert also gave no response when the district court asked whether any juror believed that he could not serve fairly and impartially. Id. at 44.
The district court also questioned Gilbert individually. During that questioning Gilbert indicated that "all things being equal, [he] would probably tend to favor the prosecution," App., infra, 4a, that he assumed that "people are on trial because they did something wrong," id. at 5a, and that he did not know whether a juror holding his opinions could give the defendants a fair trial, id. at 4a. Gilbert also indicated, however, that he did not disagree with the principle that the government bore the burden of proof beyond a reasonable doubt, and that he understood in theory that defendants are presumed innocent. Id. at 4a-5a.
Respondent and his co-defendant challenged Gilbert for cause. The district court denied the challenge on the ground that Gilbert had indicated that he 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 challenges for use in the selection of regular jurors, and an additional challenge for use in the selection of the alternate juror. App., infra, 3a. The government was allotted six peremptory challenges for use in the selection of regular jurors, 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 impairment of respondent's right of peremptory challenge. App., infra, 1a-19a. It first held that the district court abused its discretion by refusing to excuse Gilbert for cause. Id. at 7a-8a. Relying on this Court's decision in Ross v. Oklahoma, 487 U.S. 81 (1988), the court held that the error did not constitute a violation of the Sixth Amendment, because Gilbert did not actually sit on the jury. App., infra, 9a. The court held, however, that the error amounted to 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 challenge to remove a juror who should have been removed for cause, and that it was thereby effectively denied a peremptory challenge to which it was entitled by law.1 Id. at 9a-14a. The court held that, because respondent was denied the right to use his full complement of peremptory challenges as he saw fit, 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 loss of a peremptory challenge does not amount to a constitutional violation. Id. at 15a. In any event, Judge Rymer explained, respondent never suggested to the district court that he wanted to strike some other juror with the peremptory challenge that was instead used to remove Gilbert. Id. at 16a. Judge Rymer therefore concluded that there was no indication that respondent was adversely affected by the district court's refusal to remove Gilbert for cause. Ibid. Judge Rymer further stated that respondent could obtain relief only if he could establish plain error, because he had not adequately preserved an objection based on the denial of his right to exercise peremptory challenges. Id. at 16a-17a. Finally, Judge Rymer concluded that respondent had failed to demonstrate plain error, because he could show no prejudice and because it was far from clear that the use of a peremptory challenge to remove a juror who should have been excluded for cause amounts to a due-process violation, or even a denial of the right to peremptory challenges provided by Rule 24 of the Federal Rules of Criminal Procedure. App., infra, 17a-18a.
REASONS FOR GRANTING THE PETITION
The court of appeals held that, when a defendant uses a peremptory challenge to remove a juror who should have been excused for cause, and he later exhausts his allotted challenges, the defendant's Fifth Amendment due-process rights have been violated and the violation compels reversal, without any inquiry into harmless error. App., infra, 3a. That holding creates a square conflict among the courts of appeals. The Eighth, Tenth, and Eleventh Circuits have all held that such an error does not amount to a constitutional violation and does not require reversal unless prejudice is shown. The court of appeals' holding is also incorrect. A defendant's right to exercise peremptory challenges is not of constitutional dimension, and his exhaustion of his peremptory challenges by using one to remove a juror who should properly have been removed 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 errors in federal criminal trials are subject to harmless-error analysis. Under a proper application of harmless-error doctrine, the error in this case did not affect respondent's "substantial rights," Fed. R. Crim. P. 52(a), and did not warrant reversal.2 Because the issue in this case is recurring and important, the court of appeals' erroneous holding warrants this Court's review.
1. There is a square conflict among the courts of appeals about whether reversal is required when the trial court in a criminal case erroneously denies a defense motion to remove a potential juror for cause, thereby causing the defendant to use a peremptory challenge to remove that potential juror. The Ninth Circuit held in this case that if the defense later exhausts its challenges, such an error amounts to a violation of the defendant's due-process rights and requires automatic reversal. App., infra, 1a-19a. The Fifth Circuit has recently articulated the same principle of per se reversal (without, however, resting on a due-process theory). See United States v. Hall, 152 F.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 such an error is not of constitutional dimension and does not require reversal absent a showing of prejudice-generally speaking, unless a biased juror is seated. See, e.g., United States v. Gibson, 105 F.3d 1229, 1233 (8th Cir. 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, 923 F.2d 1557, 1566 & n.20 (11th Cir. 1991).3 Respondent's convictions would have been affirmed in any of the latter three circuits.4
2. The decision of the court of appeals rests on two propositions: that requiring respondent to use a peremptory challenge to remove a juror who should have been excused for cause violated his due-process rights, and that such an error can never be harmless. Both propositions are incorrect.
a. A defendant has no constitutional right to peremptory challenges; the existence 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 refusal to remove a juror for cause, thereby requiring the defendant to use one of his peremptory challenges to remove the juror, violated the defendant's Sixth Amendment right to an impartial jury. 487 U.S. at 87-88. "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Id. at 88. The Court in Ross also concluded that requiring Ross to use a peremptory challenge to remove a juror who should have been excused for cause did not deprive Ross of his rights under the Due Process Clause. Id. at 89-91. The Court reached that result because the Oklahoma courts require defendants to use a peremptory challenge to rectify 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's right to exercise peremptory challenges was impaired by the district court's erroneous for-cause ruling, that impairment does not amount to a violation of respondent's rights under the Due Process Clause. The right of federal criminal defendants to exercise peremptory challenges is created by federal rule, not the Constitution. Such challenges "are not constitutionally protected fundamental rights; rather, they are but one state-created means to the constitutional end of an impartial jury and a fair trial." Georgia v. McCollum, 505 U.S. 42, 57 (1992). Although the violation of a non-constitutional rule of procedure may in unusual circumstances rise to the level of a due-process violation, see, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) (denial of state-law right to adjudicatory procedures), the general rule is that such a violation does not make out a due-process claim unless the violation "results in prejudice so 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). The district court's error in refusing to excuse a potential juror for cause simply required the defense to use one of its peremptory challenges to achieve the same purpose; that consequence cannot reasonably be said to have deprived respondent of a fair trial.
Indeed, it is not even clear that respondent's rule-based right to exercise challenges was impaired. This Court has not decided whether, as a matter of federal law, defendants must use a peremptory strike to remove a biased juror in order to challenge on appeal a trial court's denial of a for-cause challenge. The few decisions of the courts of appeals expressly addressing the issue appear to point in different directions. Compare Frank v. United States, 42 F.2d 623, 630 (9th Cir. 1930) ("It is uniformly held that where challenge for actual bias is denied and the defendant has an opportunity to eliminate the juror by exercising a peremptory challenge and fails to do so, he cannot thereafter complain of the ruling denying his challenge unless and until he has otherwise exercised all his peremptory challenges.") (citing numerous state cases),5 with, e.g., United States v. Mobley, 656 F.2d 988, 989-990 (5th Cir. 1981) (permitting defendant to raise objection on appeal to trial court's denial of for-cause challenges where defendant exhausted peremptory challenges but did not use them against jurors whom he had challenged for cause).
The better approach is to require defendants to use their peremptory challenges to cure trial courts' erroneous denials of for-cause challenges. As the Court noted in Ross, peremptory challenges are "a means to achieve the end of an impartial jury." 487 U.S. at 88. It is entirely consistent with that purpose to require that defendants use their peremptory "challenges to cure erroneous refusals by the trial court to excuse jurors for cause." Id. at 90. Such a requirement reasonably "subordinates the absolute freedom to use a peremptory challenge as one wishes to the goal of empaneling an impartial jury." Ibid.
In any event, a defendant's right to exercise peremptory challenges would be impaired only if the defendant wanted to remove one of the jurors who actually sat, but could not do so only because he had exhausted his peremptory challenges in removing the potential juror who should have been excused for cause. The mere fact that a defendant exhausts his peremptory challenges does not establish that his exercise of peremptory challenges has been impaired by the erroneous denial of a for-cause challenge. It may well be that the defendant in such a case is content with the jurors who are seated, and would not have exercised a peremptory challenge against any of them even if the district court had properly removed the disputed potential juror for cause. It is for that reason that many courts properly require "some objection 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 state cases); 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 record that the 12 jurors who actually tried the case were absolutely satisfactory to defendant, and that he desired all of them to serve, and would not have excused 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 are subject to harmless-error analysis.
Like many of the decisions that apply a rule of per se reversal to errors impairing the exercise of peremptory challenges, the decision of the court of 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] denial or impairment of the right to exercise peremptory challenges 'is reversible error without a showing of prejudice.'") (quoting Swain, 380 U.S. at 219). Swain in turn relied upon a series of early decisions from this Court reversing criminal convictions on the basis of errors impairing defendants' exercise of their peremptory challenges. 380 U.S. at 219 (citing Harrison v. United States, 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)).
The early decisions of this Court upon which the dictum in Swain rests, however, were "decided long before the adoption of Federal Rule[] of Criminal Procedure * * * 52, and prior to the enactment of the harmless-error statute, 28 U.S.C. § 2111." Lane, 474 U.S. at 444 (overruling similar early case holding that misjoinder of charges requires automatic reversal). Section 2111 of Title 28 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 without regard to errors or defects which do not affect the substantial rights of the parties." Rule 52(a) provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." This Court has repeatedly held that all errors in federal criminal proceedings are subject to the harmless-error inquiry mandated by Section 2111 and Rule 52(a).7 See Bank of Nova Scotia v. United States, 487 U.S. 250, 254-255 (1988) ("[A] federal court may not invoke supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a). * * * Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rule'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, 520 U.S. 461, 466 (1997) (rejecting claim that Court should carve out exception to Rule 52 for "structural error[s]"; Rule 52 "by its terms governs direct appeals from judgments of conviction in the federal system, and therefore governs this case. * * * Even less appropriate than an unwarranted expansion of the Rule would be the creation out of whole cloth of an exception to it, an exception which we have no authority to make.").
More specifically, this Court has relied upon Section 2111 and Federal Rule of Civil Procedure 61-a civil analogue to Rule 52(a)-in determining whether an impairment of the exercise of peremptory challenges justified granting a 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 time when all trial error was presumed prejudicial and reviewing courts were considered citadels of technicality. The harmless-error rules adopted by this Court and Congress embody the principle that courts should exercise judgment in preference to the automatic reversal for 'error' and ignore errors that do not affect the essential fairness of the trial.") (quotation marks and citations omitted). Those authorities establish that the court of appeals erred by applying a rule of per se reversal rather than conducting the inquiry, required by this Court's cases, by Section 2111, and by Rule 52(a), into whether any error affected respondent's substantial rights.
The error in this case did not affect respondent's substantial rights. In general, in order to affect substantial rights, an "error must have been prejudicial: It must have affected the outcome of the district court proceedings." 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 this case cannot reasonably be supposed to have had any such effect.
Nor does the error in the present case fall within the narrow category of fundamental constitutional errors that require reversal even if they have no 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 a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair") (quoting Rose v. Clark, 478 U.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). But where no actually biased juror is seated, errors affecting the exercise of peremptory challenges will rarely, if ever, affect a substantial right of a defendant. Cf. Ross, 487 U.S. at 91 n.5 (noting that Ross made no claim that the "trial court repeatedly and deliberately misapplied the law in order to force [him] to use his peremptory challenges to correct these errors").
It is undisputed in this case that all of the seated jurors were impartial. Even if respondent would have exercised one additional peremptory challenge against one of the jurors who sat, an error having only that consequence would 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 single case. It should therefore not be surprising that the courts of appeals have frequently grappled with the question whether and in what circumstances the erroneous denial of a for-cause challenge warrants reversal of a criminal conviction. See pp. 7-8, supra (citing cases); see also, e.g., United States v. 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 States v. 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, 488 U.S. 996 (1988) and 490 U.S. 1101 (1989). This Court should grant review to resolve the conflict among the courts of appeals on that question.
Granting review in this case would also provide the Court with an opportunity to shed light on a broader conflict among the courts of appeals on the question whether impairments of a criminal defendant's right to exercise peremptory challenges require automatic reversal. Like the Ninth Circuit in this case, the First, Third, Fifth, Sixth, and Seventh Circuits have held that such errors are not subject to harmless-error analysis and therefore require automatic 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 States v. Underwood, 122 F.3d 389, 392 (7th Cir. 1997), cert. denied sub nom. United States 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 a variety of ways in which a district court might commit error affecting a defendant's exercise of peremptory challenges. The widespread disagreement among the courts of appeals on the question whether such errors invariably require 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), seeking resolution of the broader conflict among the courts of appeals discussed above. The respondents in Messino opposed certiorari, arguing that the case arose in an unusual context, i.e., the failure of a district court to give the defendant accurate notice of jury-selection procedures, that there was no conflict among the courts of appeals in that particular context, and that a decision of the case might "require this Court to embark upon a fact-resolution journey." 97-1641 Br. in Opp. at 14-16, 17. We acknowledged that 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 is no question in this case that a conflict exists and that the legal issue presented is a characteristic one in peremptory-challenge litigation.
As we have explained, see p. 7, supra, there is a square conflict among the courts of appeals about whether reversal is required in the circumstances of this case: when the trial court in a criminal case erroneously denies a defense motion to remove a potential juror for cause, thereby causing the defendant to use a peremptory challenge to remove that potential juror. The Ninth Circuit-the largest court of appeals in the country-has now joined the Fifth Circuit in holding that such an error can never be harmless, while the Eighth, Tenth, and Eleventh Circuits have found such errors to be harmless. That conflict warrants this Court's resolution. And this case also properly raises the broader conflict among the courts of appeals on whether errors impairing the exercise of a defendant's peremptory challenges are subject to harmless-error analysis. The erroneous denial of a defendant's for-cause challenge to a potential juror is one of the most common settings in which that issue arises, and a decision here would illuminate the proper analysis of that issue.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
ROY W. MCLEESE III
Assistant to the Solicitor
General
RICHARD A. FRIEDMAN
Attorney

FEBRUARY 1999
1 In a brief to the panel, the government conceded that it violates due process to require a defendant to use a peremptory challenge to remove a juror who should have been removed for cause. Gov't C.A. Supp. Br. 9-12. The court of appeals did not rely on that concession, but instead "independently conclude[d]" that respondent's due-process rights had been violated. App., infra, 9a n.4. In its petition for rehearing, with suggestion for rehearing en banc, the government retracted that concession by arguing that no due-process violation occurs in that situation. Pet. for Reh'g 9-10.
2 The government contended in the court of appeals that the district court did not abuse its discretion by refusing to excuse Gilbert for cause. See, e.g., Gov't C.A. Supp. Br. 6-9. Because the contrary conclusion of the court of appeals does not present a legal question of general importance, the government does not seek review of that conclusion in this Court and therefore assumes for present purposes that the district court should have excused Gilbert for cause. Cf. United States v. Lane, 474 U.S. 438, 444 n.5 (1986); United States v. Hasting, 461 U.S. 499, 506 n.4 (1983).
3 There is a corresponding conflict among the courts of appeals in civil cases. Compare Kirk v. Raymark Indus., 61 F.3d 147, 158-162 (3d Cir. 1995) (reversal required if civil litigant uses peremptory challenge to remove potential juror whom district court erroneously refused to remove for cause), cert. denied, 516 U.S. 1145 (1996), with Getter v. Wal-Mart Stores, 66 F.3d 1119, 1122 (10th Cir. 1995) (finding harmless error in same circumstances), cert. denied, 516 U.S. 1146 (1996).
4 Two other courts of appeals have decided cases holding that reversal is not required when a defendant exercises a peremptory challenge to remove a potential juror who erroneously was not removed for cause. See, e.g., United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994); United States v. Nururdin, 8 F.3d 1187, 1190-1191 (7th Cir. 1993), cert. denied, 510 U.S. 1206 (1994). The law in both of those courts, however, is unclear in light of subsequent or contrary decisions. See pp. 16-17 & n.9, infra. Conversely, the Fourth Circuit has held that reversal is required when a defendant exercises a peremptory challenge to remove a potential juror who erroneously was not removed for cause. See United States v. Rucker, 557 F.2d 1046, 1049 (1977). Subsequent decisions make clear that the law in the Fourth Circuit is unsettled. See p. 17 n.9, infra.
5 Cf. Pickens v. Lockhart, 4 F.3d 1446, 1450-1451 (8th Cir. 1993) (denying federal habeas relief because Arkansas law requires that defendants use peremptory challenges to cure trial court's erroneous denial of for-cause challenges), cert. denied, 510 U.S. 1170 (1994); Adams v. Aiken, 965 F.2d 1306, 1317-1318 (4th Cir. 1992) (same as to South Carolina law), vacated and remanded on other grounds, 511 U.S. 1001 (1994).
6 In her dissent, App., infra, 16a, Judge Rymer concluded that respondent had failed to indicate to the district court that he would have exercised an additional peremptory challenge if one had been available. In his response to the government's petition for rehearing, respondent contended (at 4-5, 8-9, 15) that, to the contrary, the trial record indicated that respondent would have exercised an additional peremptory challenge if one had been available. That case-specific dispute, however, is irrelevant under the approach adopted by the court of appeals, which requires only that a defendant exhaust his peremptory challenges. App., infra, 13a. See also, e.g., Vansickel v. White, No. 97-17143, 1999 WL 31457, at *12 n.2 (9th Cir. Jan. 27, 1999) (Reinhardt, J., dissenting).
7 If no proper objection is made in the district court, however, errors in criminal cases are reviewed under the plain-error standard of Rule 52(b). See generally United States v. Olano, 507 U.S. 725 (1993).
8 When the error in question is of constitutional dimension, the government bears the burden of showing beyond a reasonable doubt that the 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 not have a "substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U.S. 750, 776 (1946). Although the court of appeals held in the present case that the error at issue violated respondent's rights under the Due Process Clause (App., infra, 9a), that holding is incorrect. See pp. 8-12, supra.
9 The law in several other circuits is internally inconsistent or unclear. Compare United States v. Taylor, 92 F.3d 1313, 1325 (2d Cir. 1996) (errors impairing defendant's exercise of peremptory challenges require per se reversal) (dicta; citing Carr v. Watts, 597 F.2d 830, 833 (2d Cir. 1979)), cert. denied, 519 U.S. 1093 (1997), with United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994) (finding error impairing defendant's exercise of peremptory challenges to be harmless). Compare also United States v. Love, 134 F.3d 595, 600-603 (4th Cir.) (error impairing exercise of peremptory challenges requires reversal only if prejudice is shown), cert. denied, 118 S. Ct. 2332 (1998), with United States v. Ricks, 802 F.2d 731, 734 (4th Cir.) (en banc) (errors impairing exercise of peremptory challenges require per se reversal), cert. denied, 479 U.S. 1009 (1986).

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