In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-3255, 99-3295 & 99-3492

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DRIEFUS HARBIN, a/k/a OMAR, HERMAN HICKS,
a/k/a HERM, and RADAR TYLER, a/k/a BIG DAR,

Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 98 CR 78--Rudy Lozano, Judge.

ARGUED NOVEMBER 2, 2000--DECIDED MAY 8, 2001



  Before HARLINGTON WOOD, JR., RIPPLE, and
ROVNER, Circuit Judges.

  ROVNER, Circuit Judge. This Court has
addressed many appeals related to the use
of peremptory challenges, but this one
appears unprecedented. Here, the
prosecutor was allowed to use a
peremptory challenge "saved" from the
jury selection phase to eliminate a juror
on the sixth day of an eight-day trial.
The defendants seek a new trial, arguing
that the prosecution’s mid-trial use of a
peremptory challenge violated their Fifth
Amendment due process right to a fair
trial as well as their Fifth Amendment
right to the intelligent exercise of
their peremptory challenges. We agree.

I.

  The defendants were charged along with
a number of others in a multi-count
indictment with conspiracy to possess
with intent to distribute and to
distribute 50 grams or more of crack
cocaine in violation of 21 U.S.C. sec.
846, use of a minor in the conspiracy in
violation of 21 U.S.C. sec. 861(a) & 18
U.S.C. sec. 924(j), possession with
intent to distribute in excess of five
grams of crack, in violation of 21 U.S.C.
sec. 841 (a)(1), and carrying a firearm
during a drug trafficking offense, in
violation of 18 U.S.C. sec. 924(c)(1).
They proceeded to trial on the charges
and the jury ultimately convicted all
three of the conspiracy charge and one
possession charge, convicted Hicks and
Tyler of an additional possession charge,
and acquitted them of the use of a minor
and firearms charges. They now argue that
the jury selection process was
constitutionally deficient.

  The process for exercising peremptory
challenges began routinely enough, with
the court declaring that after challenges
for cause, each side could submit
peremptory challenges for the potential
jurors following questioning by the
court. The court cautioned that "[t]hose
jurors remaining in the jury box after
challenges are exercised may not again be
challenged except for cause." Tr. at Vol.
1, pp. 88-89. Following the challenges,
the vacated seats would be filled with
additional prospective jurors, and the
process would be repeated. However, that
process as set forth by the court was not
followed on two occasions. The first
occurred during pre-trial jury selection
and is not before us on appeal. During
pre-trial jury selection, two potential
jurors who had survived the peremptory
and cause challenges subsequently
informed the court of conflicts regarding
their ability to serve. One had a
vacation scheduled to begin in nine days,
and the other had day care problems. The
court allowed the government to use
peremptory challenges to strike both of
those potential jurors, stating "you can
use your peremptories because this is new
information." Tr. at Vol. 1, p. 193.
Defendant Tyler objected to that use of
peremptory challenges, arguing that the
late dismissal of those jurors put him at
a disadvantage in the use of his own
peremptory challenges, but he does not
pursue that on appeal.

  During that voir dire process, the
district court allowed both parties to
submit questions that the court
wouldpresent to potential jurors, and the
court clarified repeatedly that the
failure to submit questions would
constitute a waiver. Although the
government later commented that it
thought the court’s typical voir dire
asks about narcotics use, the government
never submitted any such question and the
potential jurors were never queried on
the subject.

  Ultimately, the defendants exhausted all
of their peremptory challenges with two
jury seats remaining to be filled. The
government had not used all of its
available peremptory challenges at the
time that the jury selection process was
completed. At the close of the jury
selection process, both sides accepted
the jury.

  On the sixth day of the eight-day trial,
the court brought to the attention of the
attorneys a note it had received from one
of the jurors which read:

I, [Juror M]/1, felt it was my duty to
let the Court know that one of the
State’s witnesses, I know his mom. I felt
that I should make the Court aware of
this. As my civic duty, I plan to carry
on, with no intentions of being swayed
because of this plight. Thanks, [Juror
M].

With the approval of all attorneys, the
judge decided to question Juror M in open
court out of the presence of the other
jurors. Juror M related that he knew the
mother of government witness John King.
He said her name was Plemeer, and that he
worked with her at Benton Harbor and was
in a Narcotics Anonymous program with
her. He learned of her relationship with
witness King when Plemeer heard that he
was on jury duty and told him that John
King was her son. Juror M then told
Plemeer that he could not say anything
else and ended the conversation. He told
the court that she was "completely okay
with everything" and was not trying to
sway him. In response to the court’s
questions, Juror M affirmed that the
information would not cause him any
problems or reservations in the case
either for or against the government or
defendants, that he could put aside that
knowledge as a juror, and that he could
be a good, fair and impartial juror.

  The court consulted with the attorneys,
at which time the government requested
that the court question Juror M further
about his participation in Narcotics
Anonymous. The court then asked Juror M
why he did not reveal his Narcotics
Anonymous participation when queried
about any organizations to which he
belonged. Juror M replied that he
considered it a program, with meetings
that are attended anonymously as needed,
rather than an organization of which one
was a member. In response to questions by
the court, he declared that his history
as a narcotics user would not cause him
any bias or prejudice in the case. In
light of those responses, the court
declined to dismiss him for cause. Over
the defendants’ objections, the court
nevertheless allowed the government to
exercise one of its peremptory challenges
"left over" from jury selection, based on
the newly discovered information. Because
Juror M was one of two African-Americans
on the jury and the sole African-American
male, the challenge impacted the racial
composition of the jury, but the
defendants did not raise a Batson
challenge to the government’s use of the
peremptory.

  This is a direct appeal and thus
governed by Federal Rule of Criminal
Procedure 52(a) ("Rule 52(a)"), which
allows reversal only for errors that
affect substantial rights. Neder v.
United States, 

, 7 (1999).
Therefore, we must determine whether
there was error here and, if so, whether
that error affected the defendants’
substantial rights.

II.

  The government does not even concede
that it was error for the court to allow
it unilateral use of peremptory
challenges mid-trial, much less error
that affects substantial rights. Not
surprisingly, the rule which delineates
the federal right to peremptory
challenges, Fed. R. Crim. P. 24, does not
explicitly address the use of peremptory
challenges mid-trial. But peremptory
challenges by their very nature are a
jury selection tool, and have
historically and uniformly been limited
to the pre-trial jury selection process.
Moreover, the district court set forth
the rules by which peremptory challenges
could be used in this case, and those
rules precluded the use of peremptory
challenges once a potential juror passed
the first round of challenges. Those
procedures were not followed, with the
result that only the prosecution had the
opportunity to subsequently exercise
peremptory challenges. Because peremptory
challenges are a tool used in jury
selection that had never before been
extended to the trial itself, the
defendant had no reason to "save" peremp
tory challenges for use during trial. In
fact, the ability to remove jurors with
peremptory challenges mid-trial is a
significant weapon. At that time, the
parties have had the opportunity to
observe the demeanor of the jurors and to
employ that knowledge in their decision.
It would fundamentally alter the
peremptory challenge to allow its use in
this manner.

  Moreover, the alternate juror provisions
indicate that peremptory challenges do
not survive the jury selection process.
First, Rule 24(c) allows the court to
empanel no more than six alternate
jurors. If the parties were allowed to
"save" their peremptory challenges for
use during the trial, however, that
number of alternates would be woefully
inadequate to ensure that a jury remained
once the challenges were used. Rule 24(c)
also provides that alternate jurors shall
replace regular jurors who are "unable"
or "disqualified" to perform their
duties. In the present case, Juror M was
neither unable to perform his duties, nor
was he disqualified from performing them.
He was instead a qualified,
presumptively-impartial juror who was
removed at the discretion of the
prosecution without cause. Such a
discretionary removal runs counter to the
limitations set forth in Rule 24(c) for
replacement of regular jurors with
alternates. The court’s decision to allow
the prosecutor to remove an impartial
juror mid-trial was therefore error.

  The government’s argument that the
district court limited the mid-trial use
of peremptory challenges to
situationsinvolving new information does
not alter that conclusion. If that new
information impacted the juror’s
impartiality, the juror could be removed
for cause. Absent that, however, the
prosecutor does not have the discretion
to remove a juror mid-trial. We note that
the prosecution had the opportunity to
submit questions at voir dire that would
have revealed the "new" information, and
chose not to do so. We have no desire to
unleash fishing expeditions during trial
designed to elicit "new information"
concerning seated jurors deemed
undesirable, nor do we wish to encourage
parties to refrain from submitting
questions on voir dire in order to leave
open avenues for challenges during trial.
Peremptory challenges are a tool of jury
selection as is evidenced by the
consistent practice and the provisions
for alternate jurors, and they have no
place during the trial.

  The allowance of peremptory challenges
during the trial would be statutory error
in any case, but presents constitutional
problems as well where, as here, only one
side is afforded that opportunity because
the notice given to the defendants
regarding the procedures for peremptory
challenges was inadequate and misleading.
The district court stated that peremptory
challenges could not be used once a
potential juror was passed, and that
subsequent challenges would be limited to
challenges for cause. The defendants were
entitled to rely on that procedure in
determining how to effectively employ
their peremptory challenges, and did so
here.

  Although the defendants have no
constitutional right to peremptory
challenges, that does not end the
constitutional inquiry. The Supreme Court
addressed an analogous situation in
Wardius v. Oregon, 

 (1973), a
case involving pre-trial discovery. The
Court recognized that the defendant has
no right to pre-trial discovery (the
Brady rule being an exception to that),
but the Court nevertheless found a due
process violation where the defendant was
required to provide alibi information
pre-trial, but no corresponding pre-trial
discovery obligation was imposed on the
state. In so holding, the Court noted
that "[a]lthough the Due Process Clause
has little to say regarding the amount of
discovery which the parties must be
afforded, . . . it does speak to the
balance of forces between the accused and
his accusers." Id. at 474. The Court held
that it was fundamentally unfair to force
the defendant to disclose information
pre-trial, and not impose a similar
requirement on the State. Id. at 476.
Therefore, although the state need not
adopt any pre-trial discovery provisions,
if it did so, due process required that
it be a "two-way street." Id. at 475.

  Wardius makes clear, therefore, that it
does not end the inquiry to state that
peremptory challenges are a creature of
statute, and not constitutionally-
required. When they are granted by
statute, the question becomes whether it
violates due process to allow only one
party to exercise such a challenge mid-
trial. Due process does not require
absolute symmetry between rights granted
to the prosecution and those afforded the
defense. Our system is not one of
symmetry at every stage, but of an
overall balance designed to achieve the
goal of a fair trial. See Tyson v. Trigg,

, 440 (7th Cir. 1995); United
States v. Turkish, 

, 774-75
(2d Cir. 1980); Katherine Goldwater,
Limiting a Criminal Defendant’s Use of
Peremptory Challenges: On Symmetry and
the Jury in a Criminal Trial, 102 Harv. L.
Rev. 808, 820-26 (1989). Toward that end,
different rights are granted to each
side. Id. We have recognized, however,
that "a shift at just one stage might so
alter the total balance of advantages in
favor of the prosecution as to deprive
the defendant of the right to a fair
trial." Tyson, 50 F.3d at 441. Therefore,
although peremptory challenges are not
constitutionally required, due process
may be violated by a system of challenges
that is skewed towards the prosecution if
it destroys the balance needed for a fair
trial.

  The importance of the peremptory
challenge device to the accused, and the
history of peremptory challenges in this
country, indicates that a system of
peremptory challenges skewed toward the
prosecution would impair the right to an
impartial jury and a fair trial. The
Supreme Court has long recognized that
peremptory challenges are one of the most
important of the rights secured to the
accused, and that the system of
peremptory challenge has traditionally
provided the assurance of impartiality.
Holland v. Illinois, 

, 483
(1990). Peremptory challenges assure the
selection of a qualified and unbiased
jury by enabling each side to exclude
those potential jurors believed to be
most partial towards the other side, thus
eliminating extremes of partiality on
both sides. Id. at 484, citing Batson v.
Kentucky, 

, 91 (1986). As
such, the device "occupies ’an important
position in our trial procedures,’ . . .
and has indeed been considered ’a
necessary part of trial by jury.’" Id.,
quoting Batson, 476 U.S. at 98, and Swain
v. Alabama, 

, 219 (1965)
overruled by Batson. The Court further
recognized that the goal of an impartial
jury is obstructed by procedures that
cripple the device of peremptory
challenge. Id. at 483-84. Thus, the Court
has repeatedly recognized the
significance of the peremptory challenge
to the defendant, and to the goal of an
impartial jury.

  Moreover, in this country, defendants
have historically been allowed a greater
or equal number of peremptory challenges
than the prosecution, thus reflecting a
"balance" that favors the defendant
rather than the prosecution. See
generally, J.E.B. v. Alabama, 

, 146-51 (1994) (O’Connor, J.
concurring); Swain, 380 U.S. at 214-16.
The Court in analyzing the impartial jury
requirement and peremptory challenges
particularly, has long indicated that the
relative rights of the prosecution and
the accused must be at least equal. See
Georgia v. McCollum, 

, 47 n.4
(1992), Batson, 476 U.S. at 107 & 126
(Marshall, J. concurring and Burger, J.
dissenting), and Swain, 380 U.S. at 220,
(all noting, in the context of peremptory
challenges, that between the defendant
and the state, "the scales are to be
evenly held"); see also Holland, 493 U.S.
at 481 (in analyzing the fair-cross-
section requirement, stating that the
Sixth Amendment guarantee of an impartial
jury requires that the prosecution and
defense compete on equal basis); but cf.
Tyson, 50 F.3d at 440-41 (musing that
allowing only the prosecution to exercise
peremptory challenges might be defended
as appropriate to offset the advantage to
defendant of the high burden of proof).
Peremptory challenges are a significant
means of achieving an impartial jury, and
as between the defendant and the
prosecution, the "balance" struck to
achieve an impartial jury and a fair
trial is one of at least equivalent
rights, and arguably weighs in favor of
the defendant. In addition, that balance
serves an important function in
maintaining the appearance, as well as
the reality, of justice. Swain, 380 U.S.
at 219; Georgia, 505 U.S. at 57.
Therefore, a shift in the balance of
peremptory challenges favoring the
prosecution over the defendant can raise
due process concerns.
  Here, we are presented with such a
shift. The prosecution was unilaterally
granted control over the composition of
the jury during the trial stage.
Moreover, the lack of notice effectively
precluded the defendants from
intelligently exercising their peremptory
challenge rights. That skewed the jury
selection process in favor of the
prosecution, and adversely impacted the
ability of the peremptory challenge
process to fulfill its function as a
means of ensuring an impartial jury and a
fair trial. Accordingly, the defendants’
due process rights were violated by a
jury selection process that failed to
minimally inform them of the procedures
that ultimately were followed, and by the
decision to allow the government to
unilaterally alter the composition of the
jury mid-trial. See generally Ross v.
Oklahoma, 

 (1988) and United
States v. Martinez-Salazar, 

(2000) (discussing due process
implications of errors regarding
peremptory challenges).

III.

  We turn, then, to the question of
whether the error in this case affected
the defendants’ substantial rights. The
caselaw is still evolving both in
defining what types of errors impact
"substantial rights" generally, and in
determining the extent to which errors
regarding peremptory challenges fit that
definition.

A.

  Rule 52(a) applies to errors at trial
which were brought to the attention of
the trial court, and provides that "[a]ny
error, defect, irregularity or variance
which does not affect substantial rights
shall be disregarded." Because peremptory
challenges have been described as "one of
the most important of the rights secured
to the accused," it would seem a natural
conclusion that the due process violation
in this case regarding peremptory
challenges would "affect substantial
rights," requiring reversal. As is often
true, however, the words "affect
substantial rights" have taken on a life
of their own, and require a more
elaborate analysis.
  The requirement that an error "affect
substantial rights" generally means that
the error must have been prejudicial in
that it must have affected the outcome of
the district court proceedings. United
States v. Olano, 

, 734
(1993). For errors falling within Rule
52(a), the government bears the burden of
persuasion with respect to prejudice. Id.
at 734-35. Courts normally engage in the
harmless-error inquiry to determine
whether an error was prejudicial and thus
affected substantial rights. Id.

  The Supreme Court has long recognized,
however, that some basic trial rights can
never be treated as harmless error. See
Brecht v. Abrahamson, 

, 629
(1993); Arizona v. Fulminante, 

, 309 (1991); Gomez v. United States,

, 876 (1989). Errors that
require automatic reversal include
structural defects affecting the
framework in which the trial proceeds, as
opposed to errors in the trial process
itself. Neder, 527 U.S. at 8-9; Arizona,
499 U.S. at 309. Those structural errors
implicate basic protections, and render a
criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt
or innocence. Id. It is a categorical
determination rather than a case-specific
one. Neder, 527 U.S. at 14. In Olano, the
Court left open the question of whether
structural errors not subject to the
harmless error analysis fall within the
Rule 52(a) requirement of "affecting
substantial rights." Olano, 507 U.S. at
735 (raising but not deciding whether
requirement that an error affect
substantial rights was synonymous with
prejudicial, or whether some errors
falling under Rule 52(a) should be
presumed prejudicial or could be
corrected regardless of their impact on
the outcome); see also United States v.
Underwood, 

, 1228 (7th Cir.
1997) (dissenting from denial of reh. en
banc) (distinction between trial and
structural errors relevant only under
state cases, and inappropriate under Rule
52(a)).

  That question was resolved in Neder,
which applied the structural error
analysis to the Rule 52(a) context. The
Neder Court recognized

a limited class of fundamental
constitutional errors that "defy analysis
by ’harmless error’ standards."
[citations omitted] Errors of this type
are so intrinsically harmful as to
require automatic reversal (i.e., ’affect
substantial rights’) without regard to
their effect on the outcome. For all
other constitutional errors, reviewing
courts must apply Rule 52(a)’s harmless-
error analysis and must "disregar[d]"
errors that are harmless "beyond a
reasonable doubt."

527 U.S. at 7. Thus, the Neder Court
clarified that Rule 52(a) requires
reversal of errors that are not harmless
beyond a reasonable doubt or that fall
within that class of fundamental
constitutional rights that require
automatic reversal without regard to
harmlessness.

  The subset of errors that mandate
automatic reversal is a small one. It
includes errors such as the complete
denial of counsel, a biased judge, racial
discrimination in the selection of the
grand jury, the denial of self-
representation, the denial of a public
trial, and a defective reasonable doubt
instruction. See, respectively, Gideon v.
Wainwright, 

 (1963); Tumey v.
Ohio, 

 (1927); Vasquez v.
Hillery, 

 (1986); McKaskle v.
Wiggins, 

 (1984); Waller v.
Georgia, 

 (1984); and Sullivan
v. Louisiana, 

 (1993). In
contrast, errors such as the omission of
an element of an offense do not
necessarily defy harmless error review or
affect the framework within which the
trial proceeds, and are not grounds for
automatic reversal. See Neder, 527 U.S.
at 7-14.

  All of these cases, however, are part of
a cohesive whole-- a "spectrum"of
constitutional errors. Brecht, 507 U.S.
at 629. The ultimate determination is
always whether a substantial right was
implicated. The procedures and
constitutional protections afforded
defendants operate to provide a fair
process for adjudicating the defendants’
guilt or innocence, but also to ensure
that society perceives the process to be
fair, thus promoting respect for the rule
of law. The errors impacting "structural"
rights require automatic reversal because
they impact the very foundation of a fair
trial. The rule of automatic reversal is
thus essentially a categorical
application of the harmless error
standard. Errors such as complete denial
of counsel, a biased judge, the denial of
self-representation, etc., "deprive
defendants of ’basic protections’ without
which ’a criminal trial cannot reliably
serve its function as a vehicle for the
determination of guilt or innocence . . .
and no criminal punishment may be
regarded as fundamentally fair,’" Neder,
527 U.S. at 8-9 [citation omitted], thus
necessarily adversely impacting the dual
interests identified above. See United
States v. Santos, 

, 959-60
(7th Cir. 2000) (structural errors are
reversible per se "because the error
either is serious yet its effect on the
outcome of a particular case difficult to
establish (an example is the denial of
the right to a jury trial) or infringes a
right unrelated or only distantly related
to the interest in making sure (so far as
possible) that innocent people aren’t
convicted; allowing racially motivated
peremptory challenges of prospective
jurors is an example.") (citations
omitted). Therefore, those errors are
conclusively presumed to be prejudicial.

  At the other end of the spectrum are
typical "trial" errors, which do not call
into question the framework in which the
defendant is judged, and thus do not by
their very nature prejudice the rights of
the defendant and society as a whole to a
fair system of adjudication. "If the
defendant had counsel and was tried by an
impartial adjudicator, there is a strong
presumption that any other
constitutiona[l] errors that may have
occurred are subject to harmless-error
analysis." Neder, 527 U.S. at 8, quoting
Rose v. Clark, 

, 579 (1986).
Trial errors generally occur during the
presentation of the case to the jury, and
are amenable to harmless error analysis
because they may be quantitatively
assessed in the context of the evidence
as a whole, to determine the effect on
the trial. Brecht, 507 U.S. at 629. No
presumption of prejudice attaches for
such errors, and they do not require
reversal if they are harmless beyond a
reasonable doubt. Neder, 527 U.S. at 8.

  Not every error, however, is easily
shoe-horned into one of those neat
categories. The "nature, context, and
significance of the violation," for
instance, may determine whether automatic
reversal or the harmless error analysis
is appropriate. United States v. Pearson,

, 1261 (10th Cir. 2000);
Yarborough v. Keane, 

, 897
(2d Cir. 1996). This is apparent in the
right to counsel cases, in which the
total deprivation of the right to counsel
is considered structural error whereas
the denial of the right to counsel at a
preliminary hearing is subject to
harmless error review. Id. Similarly, the
exclusion of a defendant from the trial
constitutes structural error, but the
defendant’s absence from a discrete part
of the trial process may not. Id.

  And some errors may fall in the middle
ground between those two categories of
structural and trial errors. Thus,
arguably next on the spectrum, after
structural errors conclusively presumed
prejudicial, are errors such as jury
tampering which are deemed presumptively
prejudicial by their very nature. See
Remmer v. United States, 

,
229 (1954) (jury tampering presumptively
prejudi- cial); Olano, 507 U.S. at 735 &
739 (recognizing that there may be errors
that should be presumed prejudicial).
Where improper contact is made with a
juror during a trial, the potential for
prejudice to the defendant is signif-
icant but would be very difficult for the
defendant to prove. Accordingly,
regardless of whether the government was
aware of the juror contact, the contact
is deemed presumptively, although not
conclusively, prejudicial, and the
government bears the heavy burden of
establishing after a hearing that the
contact with the juror was harmless.
Remmer, 347 U.S. at 229. The presumption
of prejudice renders that type of error
different in nature from other trial
errors, to which no such presumption
attaches.

  The Supreme Court, which used the
"spectrum" language, has recognized the
possibility of other errors that do not
fall neatly into the structural or trial
categories. In footnote nine of Brecht,
the Court declared that "[o]ur holding
does not foreclose the possibility that
in an unusual case, a deliberate and
especially egregious error of the trial
type, or one that is combined with a
pattern of prosecutorial misconduct,
might so infect the integrity of the
proceedings as to warrant the grant of
habeas relief, even if it did not
substantially influence the jury’s
verdict."/2 507 U.S. at 638, n.9. Even
some "trial" errors, then, may require
automatic reversal. See Hassine v.
Zimmerman, 

, 959-61 (3rd Cir.
1998), Hardnett v. Marshall, 

,
879-80 (9th Cir. 1994), and Cupit v.
Whitley, 

, 538 (5th Cir.
1994), applying "footnote nine
exception."

  Thus, there are many different paths in
determining whether an error prejudiced a
defendant so as to affect substantial
rights. Not surprisingly, deciding which
standard applies to a particular error is
a daunting task. Here, we must determine
where on that spectrum the constitutional
error in this case falls.

B.

   The error presented here is precisely
the type of error that "defies harmless
error analysis." No one argues that the
alternate who replaced Juror M was
somehow biased, and it is impossible to
determine what impact, if any, the
substitution had on the jury’s ultimate
decision. This would be true of many
errors relating to peremptory challenges,
because the existence of challenges for
cause presumably removes anyone with
obvious bias or potential for bias, and
we cannot assess how the makeup of the
jury may have impacted the decision-
making process. If the inability to ade
quately assess harmlessness were the only
consideration, then we could immediately
conclude that automatic reversal is
appropriate for all errors involving
peremptory challenges. The Supreme Court
at one time appeared to endorse that
view, stating in Swain that peremptory
challenges are one of the most important
of the rights secured to the accused, and
that the "denial or impairment of the
right is reversible error without a
showing of prejudice." 380 U.S. at 219.
The Court reiterated that sentiment in
Ross v. Oklahoma, 

, 89 (1988),
quoting that same language from Swain,
and we employed that reasoning in United
States v. Underwood, 

 (7th
Cir. 1997). In Underwood, the defendant
complained of a jury process that was so
confusing as to impair his right to the
intelligent use of his peremptory
challenges. Id. at 391-92. The jury
selection process effectively misled
Underwood regarding how potential jurors
would be seated on the final jury, with
the result that he opted not to challenge
two potential jurors based on his
mistaken belief that they were too far
down on the list to make it onto the
petit jury. Id. at 395. Those two jurors,
however, were among the first twelve on
the judge’s list, and sat as jurors at
the trial. Id. Relying in part on Swain,
we held that the process impaired the
intelligent exercise of his peremptory
challenges in violation of the Fifth
Amendment, and thus required automatic
reversal. Id. at 392.

   More recently, however, the Supreme
Court in Martinez-Salazar, 528 U.S. at
317 n.4, appeared to back away from that
view, noting that "the oft-quoted
language in Swain was not only
unnecessary to the decision in that case
. . . but was founded on a series of our
earlier cases decided long before the
adoption of harmless-error review." Id.
at 782 n.4. The Martinez-Salazar Court,
however, did not decide the appropriate
remedy for such a violation, because it
found no impairment of the right to the
peremptory challenge in the defendant’s
use of a peremptory challenge to correct
the trial court’s erroneous denial of a
challenge for cause.

  We then picked up the mantle in United
States v. Patterson, 

 (7th
Cir. 2000), vacated in part by Patterson
v. United States, 

 (2000).
Freed from the Swain language by the
Court’s footnote in Martinez-Salazar, we
held that the loss of a peremptory
challenge does not require automatic
reversal. In Patterson, the defendant had
asserted a number of errors related to
peremptory challenges. Among them was an
error relating to alternate jurors, which
had the effect of diminishing the number
of challenges provided by statute. Rule
24(c)(2) grants 3 extra peremptory
challenges for 6 alternates, and the
district court had granted only 2
challenges for 8 alternates. Id. at 780.
Although that was a technical violation
of the rule, we noted that this jury
selection process had not followed the
typical process. Id. Rule 24(c)(2)
assumes jurors will be selected either by
the jury-box system or the struck-jury
method, in which the defendants know the
sequence in which members of the pool
will be seated and use their peremptory
challenges with this knowledge.
Accordingly, it provides extra peremptory
challenges for the selection of
alternates because otherwise defendants
might have no challenges when those
jurors are examined. Id. In Patterson,
however, the defendants were unaware of
which jurors would be seated first, and
used their peremptory challenges on the
group as a whole. Id. We stated that
"[b]ecause the peremptory challenges
exercised against the pool of 63 were as
likely to excuse would-be alternates as
to excuse would-be regular jurors, there
was no need for a second allotment of
challenges." Id. Nevertheless, Rule 24
(c)(2) provided for such challenges, and
thus the rule was violated by the failure
to provide all the required challenges.
We held that such a violation of the rule
did not require automatic reversal. Id.
at 781-82.

  We first rejected the notion that such
a loss of a peremptory challenge is per
se a violation of a substantial right.
Id. at 781. Where the seated jury was
impartial, we refused to group such an
error with those such as a biased
tribunal or total deprivation of counsel
which require automatic reversal. Id. at
781-82. In so holding, we relied on
McDonough Power Equipment, Inc. v.
Greenwood, 

 (1984), in which
the Court applied the harmless error test
where a juror failed to respond to a
question on voir dire, thereby depriving
the defendant of information useful in
exercising the peremptory challenge. The
Court in that case declared that reversal
was justified only if a correct response
by the juror would have provided the
basis for a challenge for cause. Id. at
556. Although information is important in
an intelligent exercise of peremptory
challenges, the Court held that the
"harmless error rules adopted by the
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." Id. at 553, quoted in Patterson,
215 F.3d at 782.

  Following the reasoning in McDonough,
this court in Patterson held that
automatic reversal was improper for the
Rule 24(c)(2) violation presented in that
case. The court recognized, however, that
the possibility remained that in another
case, an error in peremptory challenges
might affect a right that is substantial,
in the sense that it has a substantial
and injurious effect or influence in
determining the jury’s verdict. 215 F.3d
at 782, citing Kotteakas v. United
States, 

 (1946). The court
further opined that "[a]n exceptionally
confused jury-selection process may have
such an effect," and thus that the result
in Underwood was not necessarily wrong.
215 F.3d at 782.

  Today, we are presented with a case
presenting just that scenario. We have
here a jury-selection process that was
not only exceptionally confused, and thus
analogous to Underwood, but which was
completely subverted with the extension
of peremptory challenges to the trial
itself. In this case, the court set forth
the rules of jury selection, and then
without notice disregarded them, thus
preventing the defendants from
intelligently exercising their peremptory
challenges and yielding exclusive control
over the jury to the prosecution at the
trial stage. That procedure crippled the
device of peremptory challenges, thus
obstructing the goal of an impartial
jury. See Holland, 493 U.S. at 483-84.

  This is different from the cases
discussed above, in which the rules used
by the court prevented the defendants
from maximizing the strategic use of
their peremptory challenges. Here, the
error was serious enough to effect a
shift in the total balance of advantages
in favor of the prosecution, which we
recognized in Tyson could deprive
defendants of a fair trial. 50 F.3d at
441. The prosecution was unilaterally
permitted to use a pre-trial jury
selection tool to alter the composition
of the jury mid-trial by removing an
unbiased juror (we must presume that he
is unbiased, because the district court
denied the challenge for cause and no one
contests that decision, which is clearly
supported on the record.) The government
used that peremptory challenge,
presumably for the purpose of obtaining a
jury more favorable to the prosecution,
on the sixth day of an eight-day trial,
at which point it would have had signifi
cant opportunity to observe the demeanor
of the juror, and to assess whether the
alternate juror would be more favorable
to its case. This is the type of error
that affects the essential fairness of
the trial and calls into question the
impartiality of the jury, in contrast to
the errors addressed in cases such as
Patterson and McDonough.

  At a minimum, defendants are entitled to
a jury process that does not provide the
prosecutor with a tool for eliminating
jurors that is denied to the defendants.
And although the defendants did not seek
to exercise any peremptory challenges
mid-trial because they did not possess
any, they were denied that right just as
surely because they were never even
informed that peremptory challenges could
survive the pre-trial stage and be
utilized at trial. Such an error affects
the fundamental fairness of the trial,
both because it failed to provide notice
to the defendants of the jury selection
process that would actually be used (and
in fact had the effect of affirmatively
misleading them), and because it gave the
prosecutor unilateral, discretionary con
trol over the composition of the jury
mid-trial.

  That error is the type of fundamental
error requiring automatic reversal. The
critical problem here is that one party
was allowed exclusive, discretionary
control over the composition of the jury
mid-trial, and whether the mechanism for
achieving that control was a peremptory
challenge or another device is
unimportant. The error is a "structural
defect affecting the framework within
which the trial proceeds." For instance,
in Brecht v. Abrahamson, 

(1993), the Court clarified that trial
error occurs "’during the presentation of
the case to the jury,’ and is amenable to
harmless-error analysis because it ’may .
. . be quantitatively assessed in the
context of the other evidence presented
in order to determine [the effect it had
on the trial].’" 507 U.S. at 629, quoting
Arizona, 499 U.S. at 307-08. In contrast,
structural defects in the constitution of
the trial mechanism defy such analysis,
and require automatic reversal because
they infect the entire trial process.
Brecht, 507 U.S. at 629. Here, the
framework in which the trial proceeded
was fundamentally altered, with the jury
selection mechanism transported to the
trial stage for one party. Moreover,
whether using the Kotteakas standard set
forth in Patterson for non-constitutional
peremptory challenge error (substantial
and injurious effect), or the Chapman
harmless error standard for
constitutional errors, it is simply
impossible as a practical matter to
assess the impact on the jury of such an
error. In the end, we would instead be
presuming prejudice or lack thereof based
on the seriousness of the error and the
extent to which it compromised the jury
process. Where the error is severe enough
to call into question the proper
functioning of the jury selection
process, the impartiality of the jury
could no longer be presumed. That would
require reversal regardless of whether
the means of achieving it was a
peremptory challenge or another device.

  But even viewing the error strictly in
light of precedent addressing peremptory
challenges, automatic reversal is
required. The Supreme Court has stated
that "[i]f the defendant had counsel and
was tried by an impartial adjudicator,
there is a strong presumption that any
other constitutiona[l] errors that my
have occurred are subject to harmless-
error analysis." Neder, 527 U.S. at 8,
quoting Rose, 478 U.S. at 579. Here,
however, the error calls into question
the impartiality of the jury because it
cripples the device designed to ensure an
impartial jury by giving each party an
opportunity to weed out the extremes of
partiality. Therefore, the presumption is
inapplicable. The right to an impartial
jury is the sort of right that requires
automatic reversal when denied. As with
other such errors, however, the "nature,
context, and significance" of a violation
may determine whether automatic reversal
or harmless error analysis is
appropriate. Minor or technical errors
that do not significantly undermine the
constitutional right do not require
automatic reversal. See Pearson, 203 F.3d
at 1261 & Yarborough, 101 F.3d at 897 and
cases discussed therein. Where the error
is substantial enough to undermine the
constitutional right, however, automatic
reversal is required. We have such an
error here. Unlike Patterson, this is
neither an insignificant nor a technical
error. See United States v. Polichemi,

, 705 (7th Cir. 2000)
(distinguishing Patterson, in which the
error did not call into question the
impartiality of the jury ultimately
selected, from Underwood, where the
entire process of jury selection was
infected with ambiguity). The error here
adversely impacted the ability of the
peremptory challenge device to fulfill
its purpose of ensuring an impartial
jury, and therefore reversal is necessary
without engaging in a harmless error
inquiry.

  Any other holding would effectively
eliminate the ability of defendants to
appeal any restrictions on peremptory
challenges, thus frustrating the
peremptory challenge device as a means of
ensuring an impartial jury. Some examples
may illustrate the problem. Consider the
scenario in which the district court
rules that the defendants must use their
peremptory challenges pre-trial, but that
the government could use them at any
point in time before the jury retired to
deliberate. Or, the situation in which
the court determines that only the
government, and not the defendant, will
be allowed the use of peremptory
challenges. But cf. Tyson, 50 F.3d at
440-41. Both examples may seem far-
fetched, but so did the use of a
peremptory challenge mid-trial before
this case. In each instance, the
framework in which the trial proceeds is
fundamentally altered, with an effect
that is difficult to establish. Are we to
say that reversal is inappropriate in
those instances because the jury that
actually sat was impartial, based on the
fiction that the challenges for cause
eliminated all biased jurors and that
peremptory challenges are a statutory
creation not constitutionally-required?
Although they are not constitutionally-
required, the Supreme Court has long
recognized that the right of peremptory
challenges is one of the most important
of the rights secured to the accused.
They are a tool for achieving the
constitutional mandate of an impartial
jury, by allowing each party to eliminate
those jurors with real or suspected
biases. See Ross, 487 U.S. at 88.
Although challenges for cause eliminate
presumptively biased jurors, peremptory
challenges weed out the extremes of
partiality on both sides. Holland, 493
U.S. at 484. Thus, a system that grants
the right to only one party threatens
that goal of an impartial jury by skewing
the jury towards the favored party. This
is different from an error that impedes
the ability of a defendant to maximize
the strategic use of his peremptory
challenges, or that affects the number of
peremptory challenges available in a
technical sense. Here, both parties were
given discretionary control over the jury
composition at the pre-trial stage, and
then one party exclusively was given that
control during the subsequent stage of
the trial itself. That is conceptually
indistinguishable from the example above
in which only the government is allowed
to use peremptory challenges. We cannot
tolerate a system in which control over
the jury rests in the exclusive domain of
one party during a particular stage of
the proceedings. That is a structural
error that requires automatic reversal.

IV.

  Because we are reversing on the
peremptory challenge issue, we need not
address the challenge to the court’s
admission of evidence regarding a murder.
On remand, the court will again weigh the
prejudice and probative value of such
evidence. If the court again finds that
the balance weighs in favor of admission,
we trust that the court will limit the
details of the murder to those relevant
to the probative value, so as to minimize
the prejudice.

  For the above reasons, we vacate the
convictions of each defendant-appellant
and remand for a new trial.

FOOTNOTES

/1 To protect the juror’s privacy, we will refer to
him only as Juror M.

/2 The Court then cited to Justice Stevens’ concur-
rence in Greer v. Miller, 

, 769
(1987). Justice Stevens in that concurrence
recognized four types of constitutional errors:
"The one most frequently encountered is a claim
that attaches a constitutional label to a set of
facts that does not disclose a violation of any
constitutional right. . . . The second class
includes constitutional violations that are not
of sufficient import in a particular case to
justify reversal even on direct appeal, when the
evidence is still fresh and a fair retrial could
be promptly conducted. . . . A third category
includes errors that are important enough to
require reversal on direct appeal but do not
reveal the kind of fundamental unfairness to the
accused that will support a collateral attack on
a final judgment. . . . The fourth category
includes those errors that are so fundamental
that they infect the validity of the underlying
judgment itself, or the integrity of the process
by which that judgment was obtained." [citations
omitted] Id.