United States v. Mendoza, No 06-2999.

A jury found José Mendoza guilty of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1).  Mendoza challenges the sufficiency of the government’s evidence against him and the district court’s procedure for identifying alternate jurors.  We affirm.

At the beginning of his trial on the charge of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1), the district court informed counsel that it intended to select 16 tentative jurors to hear the evidence and, after closing arguments, designate four at random to be the alternates. During voir dire, the district court noted that this system "seems to work very well for everybody, and it has been in use here for close to 25 years." The procedure, however, happened to result in the clerk randomly designating the one Hispanic among the 16 tentative jurors as an alternate juror.

The jury then found Mendoza guilty.

Mendoza filed motions for judgment of acquittal and for a new trial under Federal Rules of Criminal Procedure 29 and 33, and the district court denied both motions.

Primarily, Mendoza challenges the district court’s practice of seating 16 jurors to hear the evidence presented and randomly selecting four individuals to be alternates after the presentation of evidence. Although we disapprove of this procedure, the error was harmless.

Federal Rule of Criminal Procedure 24 governs the selection of jurors and alternates in criminal trials. This rule provides in pertinent part that the court may impanel alternate jurors who are identified as such and who replace jurors in the order the alternates are selected:

(c) Alternate Jurors.

(1)  In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(2)    Procedure.

(A)  Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B)   Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

Fed. R. Crim. P. 24(c). We have said that Rule 24(c) contemplates selection of alternates "either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated." United States v. Patterson, 215 F.3d 776, 780 (7th Cir. 2000), vacated on other grounds, 531U.S.1033 (2000).

Rather than seating the jury and alternates separately, the district court seated 16 tentative jurors with the intention of randomly naming four of them as alternates just prior to deliberations. There may well be benefits to selecting a jury in this manner.

But this is not the procedure prescribed by Rule 24, nor is this a matter entrusted to the sound discretion of the district court. Rule 24 assumes alternates will be selected separately and sequentially prior to the presentation of evidence and provides for additional peremptory challenges for the parties to use specifically against potential alternates. By delaying the identification of the alternates until after the parties presented evidence, the district court erred.  As a result, Mendoza was unable to exercise peremptory challenges specifically against alternate jurors. See Fed. R. Crim. P. 24(c)(4).

Notwithstanding the logic of this practice and its vintage in the district court, we must join with our sister circuits in "encouraging strict adherence" to the rule, and we now request that the district court discontinue its current practice.

Deviation from the commands of Rule 24 requires reversal only if the error affects the defendant’s substantial rights. See Fed. R. Crim. P. 52(a). We held in Patterson that generally the loss of a peremptory challenge does not constitute the deprivation of a substantial right. Only if the loss has a "substantial and injurious effect or influence in determining the jury’s verdict" does the loss of a peremptory challenge amount to reversible error. 

Because peremptory challenges exist principally to safeguard the Sixth Amendment’s guarantee of trial by an impartial jury,to prevail, Mendoza must demonstrate that the jury was not impartial.

Mendoza does not claim they were), there is no constitutional injury. United States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001).

Mendoza complains that the district court’s procedure excluded the only Hispanic among the 16 tentative jurors and that because this juror was among the first 12 seated, he expected to "try the case" to this juror (despite the district court’s warning about the procedure for selecting alternates). But as long as Hispanics were not systematically excluded from the venire (and

Furthermore, Mendoza is not entitled to any Hispanics on the jury, see Taylor v. Louisiana, 419 U.S. 522, 538 (1975), nor by implication is he entitled to any one individual juror.

Finally, Mendoza presents no evidence (other than the fact of conviction, which is insufficient) to suggest that the jury was not impartial. The error was therefore harmless.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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