No. 97-5270 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 RICHARD BOWE, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General JOEL M. GERSHOWITZ Attorney Department of Justice Washington. D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the district court improperly deprived petitioner of his full allotment of peremptory challenges. (1) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 97-5270 RICHARD BOWE, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The per curiam opinion of the court of appeals (Pet. App. Al, at 1-3) is unpublished, but the decision is noted at 110 F.3d 796 (Table) . JURISDICTION The judgment of the court of appeals was entered on March 14, 1997. The petition for rehearing was denied on April 18, 1997. The petition for a writ of certiorari was filed on July 17, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of ---------------------------------------- Page Break ---------------------------------------- 2 possessing crack cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a) (I), and using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c). He was sentenced to 230 months' imprisonment, to be followed by a five-year term of supervised release. The court of ` appeals affirmed petitioner's drug conviction but reversed his firearm conviction. l Pet. App. Al, at 1-3; Pet. App. A3, at 1-3. 1. The evidence at trial showed that, on May 14, 1993, Broward County police officers executed a search warrant at petitioner's residence in Hollywood, Florida. The officers found approximately 300 grams of crack cocaine in petitioner's bedroom. The officers also seized from the residence more than $1,000 in cash, two loaded semi-automatic handguns, a rifle, and a shotgun found under petitioner's bed. Petitioner admitted that he obtained crack cocaine from a friend in Opa-Locka, Florida. Gov't C.A. Br. 12-13. 2. In a written pretrial order, the district court set forth procedure to be followed with respect to voir dire and the exercise of peremptory challenges. In pertinent part, the order directed as follows: (d) Please excuse the juror the first chance you have an opportunity to do so. In other words, no strike backs, please. For example, if you strike jurors numbered 2, 4, ___________________(footnotes) 1 The court of appeals reversed petitioners firearm conviction because, under the definition of "use" set forth in Bailey v. United States, 116 S. Ct. 501 (1995) , there was insufficient evidence to support the conviction. Pet. App. Al, at 3. ---------------------------------------- Page Break ---------------------------------------- 3 6, and 8, the court assumes you have accepted jurors numbered 1 , 3, 5, 7, 9, 10, 11 and 12. (e) The privilege of exercising challenges shall remain with the government . . . until that side has exhausted or tendered the privilege. The privilege shall move to the defendant and remain with the defense until the defense has exhausted or tendered. (N.B. The privilege will not move back to the government or the plaintiff after the first challenges by the defense or after the second, third or fourth wave of challenges unless defendants have tend[er]ed the jury or exhausted peremptory challenges..) After the defense has exhausted or tendered, the privilege will return to the government . . . until one side will tender and the other accept the jury. Gov't C.A. Br. 26-27. On the day of trial, just before jury selection, the district court orally repeated these instructions. In response to the court's inquiry, defense counsel stated that he had no questions concerning the procedure for jury selection. Id. at 27-28; 1 Tr. 12-13. During jury selection, the district court conducted voir dire of the prospective jurors and then turned to the government for the exercise of its peremptory challenges. The government challenged one juror. 1 Tr. 55. The court then replaced the challenged juror with another prospective juror and questioned the newly seated juror. Id. at 55-58. The government declined to challenge the new juror and tendered the panel to the defense. Id. at 59 After the court inquired whether the defense had any peremptory challenges, the defense struck a single juror. 1 Tr. 59. The court then called and questioned a replacement for the challenged juror. Thereafter, defense counsel indicated that he wished to strike not only the newly seated juror but also several additional jurors. The district court prohibited counsel from ---------------------------------------- Page Break ---------------------------------------- 4 striking any juror other than the newly seated juror, stating that would constitute back striking in violation of its order. Id at 63, 64. Defense counsel then explained that, as he understood the court's order, after the defense first strike, the prosecutor would have the opportunity to make an additional strike or to tender back to the defense, at which point the defense could make an additional strike, and so on back and forth. Id. at 63, 68. The court responded that "I explained very carefully it stays with one side ,until the other side tenders or exhausts." Id at 64 The court added: You assured me you had read my conduct of trial order. And it is spelled out in there. If you don't understand something say it then." Ibid The court then reiterated that any additional challenge by defense counsel would be limited to the newly seated juror, because defense counsel had accepted all the other jurors by failing to challenge them in the first wave. Ibid 3. On appeal, petitioner contended that the district court erroneously deprived him of his full allotment of peremptory challenges under Fed. R. Crim. P. 24(b) (authorizing ten peremptory challenges for the defense where the offense is punishable by more than one year) . The court of appeals rejected that claim, concluding that "the district court [did] not abuse its discretion by enforcing the local rule and its own clear order prohibiting back striking during the exercise of peremptory challenges." pet. App. Al, at 2. The court added that, in any event, petitioner had "failed to make the requisite showing that the enforcement of the rule against back striking led to a jury whose composition was ---------------------------------------- Page Break ---------------------------------------- 5 prejudicial to him." Ibid ARGUMENT Petitioner renews his claim that the district court erred in enforcing its announced procedure for jury selection, with the result that petitioner was denied his full allotment of peremptory challenges. Petitioner's claim is without merit. 1. There is no constitutional right to exercise peremptory challenges. Georgia v. McCollum, 505 U.S. 42, 57 (1992). Rather, Rule 24 of the Federal Rules of Criminal Procedure authorizes and sets out the number of peremptory challenges the parties shall have. The Rule, however, does not specify the manner in. which peremptory challenges should be exercised. District courts therefore have broad discretion in determining the procedure for the exercise of peremptory challenges. See United States v. Anderson, 562 F.2d 394, 396-397 (6th Cir. 1977). That discretion, however, is not unlimited. A jury selection procedure may not arbitrarily deny or impair a party's challenges. Id. at 397. Petitioner does not argue that right to exercise peremptory about the jury selection procedure set forth in the district court's order. Rather, petitioner contends that his misapprehension of the order should not have been held against him, because the order was insufficiently clear and because allowing him to back strike in violation of the order would not have prejudiced the government. As the court of appeals explicitly found, however, the ---------------------------------------- Page Break ---------------------------------------- 6 district court's order was clear. In the district court, defense counsel explained that, as he understood the order, "after [the defense] raised [its] first strike, [the government] would raise [its] strikes or tender back [to the defense for additional strikes] , " 1 Tr. 68 in other words, counsel believed that he could strike a particular juror in a successive wave even though he had failed to strike that juror during the first wave. That understanding was expressly barred by the order, however. It stated plainly that any strikes should be exercised "the first chance you have an opportunity to do so" ; that the failure to strike a juror at the first opportunity would be taken as an acceptance of that juror; and that "[t]he privilege shall * * * remain with the defense until the defense has exhausted [its challenges] or tendered. " Gov't C.A. Br. 26-27. Indeed, counsel's understanding of the order was so wide of the mark that the district court concluded that counsel had not read the order. I. Tr. 70. In any event, the court of appeals' case-specific determination that the district court's order was clear does not warrant this Courts review. It was not arbitrary for the district court to refuse to allow petitioner to exercise additional peremptory challenges in violation of the order, for that would have accorded him an unfair advantage. Under the procedure prescribed by the district court, the parties were required to exercise all of their challenges against already seated potential jurors before the voir dire questioning of any replacement juror. Exercising a strike against ---------------------------------------- Page Break ---------------------------------------- 7 a juror without the benefit of knowing who the replacement will be entails some risk; a party could wind up with a juror or jurors less favorable than jurors who were struck. For the court to have permitted petitioner -to strike already seated potential jurors after the voir dire questioning of the replacement would have reduced that risk to some degree, providing petitioner with an advantage not accorded to the government. The district court did not abuse its discretion by refusing to take such a step in the present case. 2. The holding of the court of appeals in this case is fully consistent with the holdings of several other courts of appeals in cases arising in comparable circumstances. See United States v. Harper, 33 F.3d 1143, 1145-1146 (9th Cir. 1994) (where defense counsel indicated during middle of jury selection that they had made inadvertent error, trial court did not err by refusing to "relieve them of the consequences of their own error" ; counsel had been adequately notified of jury selection procedures), cert. denied, 513 U.S. 1118 (1995); United States v. Williams, 986 F.2d 86, 87-88 (4th Cir.) (during jury selection, defense counsel indicated that he had been unaware of district court's customary prohibition of "backstriking"; district court did not err by refusing to permit counsel to "backstrike" even though counsel had not been specifically informed of prohibition, since co-counsel "presumably was familiar with the districts customs"), cert. denied, 509 U.S. 911 (1993); United States v. Anderson, 562 F.2d at 396-397 (district court did not abuse its discretion by refusing to ---------------------------------------- Page Break ---------------------------------------- 8 permit defense counsel to exercise peremptory challenges against potential jurors they had previously passed; although defense claimed to have misunderstood jury selection process, process was specified by local rule, and "defense counsel's ignorance of the local rules is not a compelling ground for granting such a motion") . Petitioner's reliance (Pet. 9) on United States v. Ricks 776 F.2d 455, 460-461 (4th Cir. 1985), adopted on rehearing en banc, 802 F.2d 731, 732 (4th Cir.), cert. denied, 479 U.S. 1009 (1986), " is unavailing. In Ricks, the district court, when asked by counsel about the order in which it would pick jurors from the jury list, responded that, although it could not tell at that early stage, it "ordinarily" started counting from the top and it would be fair for counsel to assume that it would follow that procedure. The defendants then exercised all of their peremptory challenges against jurors near the top of the list. The court, however, started counting from the middle, rendering the defendants' strikes worthless, since the strikes were exercised against venire members who were not considered for selection as jurors. The court of appeals reversed, holding that "[t]he practical effect of defendants' counsels' not unreasonable belief that the jury would be chosen largely or substantially from the top of the list was to frustrate the exercise of their peremptory strikes." Id. at 460- 461.2 ___________________(footnotes) 2 On rehearing en banc, the court of appeals adopted the panel's holding on that ground, 802 F.2d at 732, and also found reversible error on other grounds, id. at 733-737. ---------------------------------------- Page Break ---------------------------------------- 9 This case is far different from Ricks. In Ricks, the court found that the district court had actively misled the defendants about the procedure it would follow in selecting jurors, with the result that the defendants' right to exercise peremptory challenges was seriously impaired. See also United States v. Turner, 558 F.2d 535, 536-538 (9th Cir. 1977) (reversing conviction where defense did not have pretrial notice of jury selection procedure, counsel's confusion about procedures led to inadvertent waiver of peremptory challenges, and jury selection procedure in any event was unlawful) . In the present case, by contrast, on very different facts, the court of appeals found that the district court's order prescribing the procedure for exercising peremptory challenges was not misleading. There is nothing in the decision of the court below to suggest that, faced with facts comparable to those in Ricks it would not have found an impairment of the right to exercise peremptory challenges. To the contrary, in a case similar to Ricks the Fifth Circuit in a decision that remains controlling in the Eleventh Circuit, Bonner v. City of Prichard, 661 F.2d 1206, 1207-1209 (11th Cir. 1981) (decisions of Fifth Circuit before October 1, 1981 are binding on panels of Eleventh Circuit) reached a result similar to that reached in Ricks. See United States v. Sams, 470 F.2d 751, 751-755 (5th Cir. 1972) (reversing conviction because district court treated defendant as having waived some peremptory challenges, where courtroom clerk had misled defense counsel as to jury selection procedures, district court had ---------------------------------------- Page Break ---------------------------------------- 10 not announced jury selection procedures, and jury selection procedures were not specified by local rule) . 3. Petitioner refers to the district court's refusal to allow him additional peremptory challenges as a "sanction," and he argues that, as such, it was "disproportionate to the perceived violation. " Pet. 11. Nothing in the record, however, suggests that the district court believed that, in barring petitioner from exercising additional strikes, it was penalizing him for misconduct,. Rather, the court was merely adhering to its order prohibiting back striking. Petitioner thus is not assisted by Mahoney v. Plunkett, 854 F.2d 152, 153-156 (7th Cir. 1988) (Pet. 11) . In Mahoney, the district court, after finding that both parties had exercised their peremptory challenges in a racially discriminatory manner, imposed a sanction upon both parties, forbidding either to exercise any peremptory challenges when a new jury was selected. The seventh Circuit granted a petition for writ of mandamus, holding that the district court lacked authority to impose such a sanction. In contrast, the district court in the present case did not impose a sanction, but simply adhered to the jury selection procedures it had specified. 4. Finally, petitioner takes issue (Pet. 13-15) with the court of appeals' alternative holding that any error in the district court's enforcement of its order prohibiting back striking was harmless. He contends that the improper impairment of a defendant's right to exercise peremptory challenges is reversible per se. As petitioner points out, some courts have held that