The issue on appeal is whether the district court impermissibly restricted this criminal defendant's exercise of peremptory challenges by treating defense counsel's acceptance of a jury panel as then constituted as a waiver of a peremptory challenge. The effect of the district court's restriction in this case was to deprive the defendant, Turner, of all of his peremptory challenges.

Turner was convicted for a series of offenses growing out of a serious assault on a fellow federal prisoner. He contends that the district court committed reversible error when it refused to permit him to exercise a peremptory challenge of a new juror, who took the place of a juror excused by a codefendant, on the ground that each time that he had accepted a panel constituted the exercise of a peremptory challenge, thereby exhausting his challenges before he actually challenged any juror.

Turner was tried with two codefendants, Bennett and Johnson. The trio agreed, through their counsel, that the ten peremptory challenges to which they were entitled under Fed.Rules Crim.Proc. rule 24(b) would be allocated to three apiece with the final challenge to be exercised jointly. During voir dire, the Government excused one juror; Bennett and Johnson each excused two jurors. Turner thrice accepted the jury panel as then constituted. When Johnson executed his second challenge, however, juror Praiser was called to take the place of the excused juror. Turner tried to exercise a peremptory challenge to excuse Praiser. Turner had not earlier challenged any juror. The district court refused to permit Turner to challenge Praiser on the ground that he had used all of his peremptories by thrice accepting the jury panel as then constituted.

The absence of any uniform national or, in this case, even local rules of court spelling out the procedure for exercising peremptory challenges in criminal cases has been justifiably condemned. The end product is a procedural muddle that traps the unwary district judge as well as the unwary litigant to the profit of no one. (E. g., United States v. Sams (5th Cir. 1972) 470 F.2d 751; United States v. Rowe (9th Cir. 1970) 435 F.2d 1298; New England Enterprises, Inc. v. United States (1st Cir. 1968) 400 F.2d 58. See also 2 Wright, Fed.Prac. & Proc. § 387.)1

The transcript in this case is an illustration of the confusion generated by the lack of local rules governing peremptories and by ambiguous exchanges that led to misunderstandings between the court and counsel about the district court's own ground rules.2

Neither the number of peremptory challenges nor the manner of their exercise is constitutionally secured (Stilson v. United States (1919)250 U.S. 583, 40 S. Ct. 28, 63 L. Ed. 1154), but the peremptory challenge is "one of the most important rights secured to the accused." (Id. at 586, 40 S. Ct. 28. See also Swain v. Alabama (1965) 380 U.S. 202, 219, 85 S. Ct. 824, 835, 13 L. Ed. 2d 759.) "Any system for the empanelling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned." (Pointer v. United States (1894) 151 U.S. 396, 408, 14 S. Ct. 410, 414, 38 L. Ed. 208.) Although wide discretion is committed to the district court in setting the procedure for the exercise of peremptory challenges (Hanson v. United States (9th Cir. 1959) 271 F.2d 791; United States v. Mackey (7th Cir. 1965) 345 F.2d 499; United States v. Keegan (2d Cir. 1944) 141 F.2d 248), that discretion is not boundless. The method chosen by the district court must not unduly restrict the defendant's use of his challenges (Pointer v. United States, supra, 151 U.S. 396, 14 S. Ct. 410), and, whatever may be the method chosen, the defendant must be given adequate notice of the system to be used. (United States v. Sams, supra, 470 F.2d 751.)

The method chosen in this case violated both limitations. Nowhere in the record does it appear that counsel had notice before trial that the district court's rules governing peremptories included a provision that each time defense counsel accepted a jury as then constituted, he had forthwith used a peremptory. Moreover, even if notice of that practice had been conveyed, we believe that such a forced waiver is an undue restriction on the exercise of peremptory challenges. We are not confronted with a claim that a defendant can save his challenges, after he has accepted a panel, and then use them to challenge members of the same panel after other defendants or the Government has exhausted their challenges. (United States v. Keegan, supra, 141 F.2d 248; Comment, "The Right of Peremptory Challenge," 24 U.Chi.L.Rev. 751 (1957).) The issue is much narrower: Can the defendant be forced to forgo a peremptory challenge each time he accepts a panel as then constituted? Our negative answer does not mean that a defendant can challenge a member of the panel that he has accepted. It means that acceptance of a panel cannot be deemed a waiver of a peremptory challenge in respect of a person who was not a member of the panel at the time the jury was accepted.3 Thus, whenever the composition of the panel has changed, the defendant may exercise any of his unexpended peremptories to excuse the new prospective juror or jurors. Our holding does not prevent a district judge from forbidding a challenge to any juror who was a member of the panel at the time the jury was accepted.

An error in restricting the exercise of peremptory challenges results in an automatic reversal. The defendant need not show that he was prejudiced by the error. (Swain v. Alabama, supra, 380 U.S. at 219, 85 S. Ct. at 835, " The denial or impairment of the right (of exercising peremptories) is reversible error without a showing of prejudice (citations omitted).")

REVERSED AND REMANDED FOR A NEW TRIAL.