olano
argued
december
decided
april
two
fourteen
jurors
selected
hear
evidence
respondents
criminal
trial
identified
alternates
jury
deliberations
began
district
without
objection
respondents
permitted
alternates
attend
deliberations
instructing
participate
respondents
convicted
number
charges
appeals
vacated
respondents
convictions
concluded
inter
alia
alternates
presence
deliberations
violated
federal
rule
criminal
procedure
requires
alternate
jurors
discharged
jury
retires
consider
verdict
found
alternates
presence
violation
rule
inherently
prejudicial
reversible
per
se
plain
error
standard
rule
held
presence
alternate
jurors
jury
deliberations
error
appeals
authorized
correct
rule
pp
appeals
discretion
rule
correct
plain
errors
defects
affecting
substantial
rights
forfeited
timely
raised
district
exercise
errors
seriously
affect
fairness
integrity
public
reputation
judicial
proceedings
atkinson
three
limitations
appellate
authority
rule
first
must
error
deviation
legal
rule
district
proceedings
error
unless
defendant
waived
rule
mere
forfeiture
extinguish
error
second
error
must
plain
term
synonymous
clear
equivalently
obvious
third
plain
error
must
affec
substantial
rights
normally
means
error
must
prejudicial
affecting
outcome
district
proceedings
normally
appeals
engages
specific
analysis
district
record
determine
prejudice
defendant
bears
burden
persuasion
need
decide
whether
phrase
affecting
substantial
rights
always
synonymous
prejudicial
whether
errors
presumed
prejudicial
pp
language
rule
nature
forfeiture
established
appellate
practice
congress
intended
continue
point
conclusion
rule
permissive
mandatory
standard
guide
exercise
remedial
discretion
articulated
atkinson
supra
remedy
limited
cases
actual
innocence
since
error
may
seriously
affect
fairness
integrity
public
reputation
judicial
proceedings
independent
defendant
innocence
however
plain
error
affecting
substantial
rights
without
satisfy
atkinson
standard
otherwise
discretion
afforded
rule
illusory
pp
government
concedes
deviation
rule
case
error
plain
however
deviation
affec
substantial
rights
presence
alternates
jury
deliberations
type
error
must
analyzed
prejudicial
impact
presence
contravened
cardinal
principle
jury
deliberations
shall
remain
private
secret
purpose
privacy
protect
deliberations
improper
influence
whether
presumption
prejudice
imposed
specific
analysis
made
change
ultimate
inquiry
intrusion
affect
jury
deliberations
thereby
verdict
see
parker
gladden
per
curiam
respondents
made
specific
showing
alternates
either
participated
chilled
jury
deliberations
prejudice
presumed
appeals
erred
presuming
alternates
failed
follow
judge
instructions
see
richardson
marsh
alternates
mere
presence
entail
sufficient
risk
chill
justify
presumption
prejudice
score
since
error
prejudicial
need
consider
whether
warranted
correction
atkinson
standard
pp
delivered
opinion
rehnquist
scalia
kennedy
souter
thomas
joined
kennedy
filed
concurring
opinion
post
stevens
filed
dissenting
opinion
white
blackmun
joined
post
solicitor
general
starr
argued
cause
briefs
assistant
attorney
general
mueller
deputy
solicitor
general
bryson
william
kelley
joel
gershowitz
carter
phillips
argued
cause
respondents
filed
brief
respondent
olano
william
genego
sheryl
gordon
mccloud
filed
brief
respondent
gray
justice
delivered
opinion
question
case
whether
presence
alternate
jurors
jury
deliberations
plain
error
appeals
authorized
correct
federal
rules
criminal
procedure
respondents
guy
olano
raymond
gray
served
board
directors
savings
loan
association
two
indicted
western
district
washington
multiple
federal
charges
participation
elaborate
loan
kickback
scheme
joint
jury
trial
five
codefendants
commenced
march
parties
agreed
jurors
selected
hear
case
alternates
identified
deliberations
began
may
shortly
end
trial
district
suggested
defendants
two
alternate
jurors
soon
identified
might
allowed
attend
deliberations
along
regular
jurors
like
think
day
let
know
suggestion
even
one
person
like
wo
suggestion
courts
followed
long
cases
jurors
sat
lot
testimony
let
alternates
go
participate
sit
deliberations
strictly
matter
courtesy
know
many
judges
done
objections
counsel
one
things
participate
emergency
comes
people
decide
rather
go
new
alternate
rather
rules
provide
keeps
option
open
also
keeps
people
feeling
sat
three
months
get
kind
kicked
certainly
worth
unless
something
agree
worth
spending
time
hassling
know
mean
got
much
else
mind
want
big
issue
suggestion
think
let
know
app
ave
given
thought
whether
want
alternates
go
participate
want
robison
counsel
gray
ask
app
well
counsel
received
alternates
understand
defendants
hard
keep
counsel
sort
day
day
right
agree
fourteen
deliberate
okay
want
instruct
two
alternates
participate
deliberation
kellogg
counsel
hilling
feet
say
understanding
conversation
two
alternates
go
back
instructed
take
part
fashion
deliberations
app
district
concluded
hilling
counsel
speaking
defendants
well
client
none
counsel
intervened
colloquy
district
hilling
counsel
may
anyone
object
later
day
instructed
jurors
two
alternates
permitted
attend
deliberations
instructed
indicated
parties
selecting
alternates
time
going
inform
alternates
let
tell
think
difficult
selection
concerned
since
law
requires
jury
twelve
going
jury
twelve
like
case
go
back
even
alternates
deliberations
according
law
alternates
must
participate
deliberations
going
hard
alternate
think
things
happen
course
lengthy
jury
deliberations
need
step
want
able
step
heard
deliberations
going
ask
participate
alternates
norman
sargent
shirley
kinsella
going
ask
time
ladies
gentlemen
retire
jury
room
begin
deliberations
app
respondents
convicted
number
charges
appealed
appeals
ninth
circuit
appeals
reversed
certain
counts
insufficient
evidence
considered
whether
presence
alternate
jurors
jury
deliberations
violated
federal
rule
criminal
procedure
may
direct
jurors
addition
regular
jury
called
impanelled
sit
alternate
jurors
alternate
jurors
order
called
shall
replace
jurors
prior
time
jury
retires
consider
verdict
become
found
unable
disqualified
perform
duties
alternate
juror
replace
regular
juror
shall
discharged
jury
retires
consider
verdict
fairly
ascertain
whether
given
case
alternate
jurors
followed
district
prohibition
participation
however
even
heeded
letter
instructions
remained
orally
mute
throughout
entirely
possible
attitudes
conveyed
facial
expressions
gestures
like
may
effect
upon
decision
one
jurors
ibid
internal
quotation
marks
brackets
omitted
appeals
vacated
respondents
remaining
convictions
reach
substantial
issues
raised
granted
certiorari
clarify
standard
plain
error
review
courts
appeals
rule
ii
procedural
principle
familiar
constitutional
right
right
sort
may
forfeited
criminal
well
civil
cases
failure
make
timely
assertion
right
tribunal
jurisdiction
determine
yakus
federal
rule
criminal
procedure
governs
appeal
criminal
proceedings
provides
appeals
limited
power
correct
errors
forfeited
timely
raised
district
rule
remained
unchanged
since
original
version
criminal
rules
intended
restatement
existing
law
advisory
committee
notes
app
paired
appropriately
rule
governs
nonforfeited
errors
rule
provides
harmless
error
error
defect
irregularity
variance
affect
substantial
rights
shall
disregarded
plain
error
plain
errors
defects
affecting
substantial
rights
may
noticed
although
brought
attention
rule
defines
single
category
error
although
possible
read
rule
disjunctive
creating
two
separate
categories
plain
errors
defects
affecting
substantial
rights
reading
surely
wrong
see
young
declining
adopt
disjunctive
reading
explained
young
phrase
error
defect
simply
read
error
ibid
forfeited
error
may
noticed
plain
affect
substantial
rights
precisely
appeals
may
correct
error
either
vacating
new
trial
reversing
outright
meets
criteria
appellate
must
consider
error
putative
real
deciding
whether
judgment
overturned
provide
remedy
unless
rule
applies
unless
provision
authorizes
error
correction
issue
respondents
raise
first
limitation
appellate
authority
rule
indeed
error
deviation
legal
rule
error
unless
rule
waived
example
defendant
knowingly
voluntarily
pleads
guilty
conformity
requirements
rule
conviction
vacated
appeals
ground
trial
right
trial
waivable
defendant
enters
valid
guilty
plea
waives
right
conviction
without
trial
error
waiver
different
forfeiture
whereas
forfeiture
failure
make
timely
assertion
right
waiver
intentional
relinquishment
abandonment
known
right
johnson
zerbst
see
freytag
commissioner
scalia
concurring
part
concurring
judgment
distinguishing
waiver
forfeiture
spritzer
criminal
waiver
procedural
default
burger
westen
away
waiver
rationale
forfeiture
constitutional
rights
criminal
procedure
whether
particular
right
waivable
whether
defendant
must
participate
personally
waiver
whether
certain
procedures
required
waiver
whether
defendant
choice
must
particularly
informed
voluntary
depend
right
stake
see
lafave
israel
criminal
procedure
allocation
authority
defendant
counsel
dix
waiver
criminal
procedure
brief
careful
analysis
texas
waivability
standards
waiver
mere
forfeiture
opposed
waiver
extinguish
error
rule
although
theory
argued
question
presented
trial
error
committed
trial
hence
nothing
review
orfield
scope
appeal
criminal
cases
theory
rule
adopts
legal
rule
violated
district
proceedings
defendant
waive
rule
error
within
meaning
rule
despite
absence
timely
objection
second
limitation
appellate
authority
rule
error
plain
plain
synonymous
clear
equivalently
obvious
see
young
supra
frady
need
consider
special
case
error
unclear
time
trial
becomes
clear
appeal
applicable
law
clarified
minimum
appeals
correct
error
pursuant
rule
unless
error
clear
current
law
third
final
limitation
appellate
authority
rule
plain
error
affec
substantial
rights
language
employed
rule
cases
means
error
must
prejudicial
must
affected
outcome
district
proceedings
see
bank
nova
scotia
lane
brennan
concurring
part
dissenting
part
kotteakos
defendant
made
timely
objection
error
rule
applies
appeals
normally
engages
specific
analysis
district
record
harmless
error
inquiry
determine
whether
error
prejudicial
rule
normally
requires
kind
inquiry
one
important
difference
defendant
rather
government
bears
burden
persuasion
respect
prejudice
cases
appeals
correct
forfeited
error
unless
defendant
shows
error
prejudicial
see
young
supra
ederal
courts
consistently
interpreted
plain
error
doctrine
requiring
appellate
find
claimed
error
prejudicial
impact
jury
deliberations
burden
shifting
dictated
subtle
important
difference
language
two
parts
rule
rule
precludes
errorcorrection
error
affect
substantial
rights
emphasis
added
rule
authorizes
remedy
unless
error
affec
substantial
rights
see
also
note
appellate
review
criminal
case
errors
made
properly
raised
reserved
summarizing
existing
law
error
must
real
probably
influenced
verdict
need
decide
whether
phrase
affecting
substantial
rights
always
synonymous
prejudicial
see
generally
arizona
fulminante
constitutional
error
may
found
harmless
error
deprives
defendant
basic
protections
without
criminal
trial
reliably
serve
function
vehicle
determination
guilt
innocence
criminal
punishment
may
regarded
fundamentally
fair
quoting
rose
clark
may
special
category
forfeited
errors
corrected
regardless
effect
outcome
issue
need
addressed
need
address
errors
presumed
prejudicial
defendant
make
specific
showing
prejudice
normally
although
perhaps
every
case
defendant
must
make
specific
showing
prejudice
satisfy
affecting
substantial
rights
prong
rule
rule
permissive
mandatory
forfeited
error
plain
affect
substantial
rights
appeals
authority
order
correction
required
language
rule
may
noticed
nature
forfeiture
established
appellate
practice
congress
intended
continue
point
conclusion
criminal
cases
life
case
liberty
defendant
stake
courts
exercise
sound
discretion
may
notice
forfeited
error
sykes
accord
crawford
former
rule
cited
advisory
committee
notes
option
may
notice
plain
error
assigned
specified
previously
explained
discretion
conferred
rule
employed
circumstances
miscarriage
justice
otherwise
result
young
quoting
frady
supra
collateral
review
jurisprudence
term
miscarriage
justice
means
defendant
actually
innocent
see
sawyer
whitley
appeals
doubt
correct
plain
forfeited
error
causes
conviction
sentencing
actually
innocent
defendant
see
wiborg
never
held
rule
remedy
warranted
cases
actual
innocence
rather
standard
guide
exercise
remedial
discretion
rule
articulated
atkinson
appeals
correct
plain
forfeited
error
affecting
substantial
rights
error
seriously
affect
fairness
integrity
public
reputation
judicial
proceedings
explained
young
standard
laid
atkinson
codified
federal
rule
criminal
procedure
repeatedly
quoted
atkinson
language
describing
plain
error
review
see
frady
silber
per
curiam
johnson
oil
see
also
connor
finch
civil
appeal
error
may
seriously
affect
fairness
integrity
public
reputation
judicial
proceedings
independent
defendant
innocence
conversely
plain
error
affecting
substantial
rights
without
satisfy
atkinson
standard
otherwise
discretion
afforded
rule
illusory
basic
principles
mind
turn
instant
case
iii
presence
alternate
jurors
jury
deliberations
doubt
deviation
rule
rule
explicitly
alternate
juror
replace
regular
juror
shall
discharged
jury
retires
consider
verdict
separate
question
whether
deviation
amounts
error
defendant
consents
alternates
presence
government
supposes
indeed
error
case
premise
rule
nonwaivable
see
reply
brief
assume
without
deciding
premise
correct
government
also
essentially
concedes
error
plain
see
therefore
focus
attention
whether
error
affect
ed
substantial
rights
within
meaning
rule
conclude
presence
alternate
jurors
jury
deliberations
kind
error
affect
substantial
rights
independent
prejudicial
impact
respondents
made
specific
showing
prejudice
finally
see
reason
presume
prejudice
assuming
arguendo
certain
errors
affec
substantial
rights
independent
prejudice
instant
violation
rule
error
although
presence
alternate
jurors
contravene
cardinal
principle
deliberations
jury
shall
remain
private
secret
advisory
committee
notes
app
quoting
virginia
erection
primary
exclusive
purpose
jury
privacy
secrecy
protect
jury
deliberations
improper
influence
harm
resulted
intrusion
alternate
juror
jury
room
reversal
pointless
watson
generally
analyzed
outside
intrusions
upon
jury
prejudicial
impact
see
parker
gladden
per
curiam
bailiff
comments
jurors
oh
wicked
fellow
guilty
prejudicial
patton
yount
pretrial
publicity
prejudicial
holbrook
flynn
presence
uniformed
state
troopers
courtroom
prejudicial
prime
example
remmer
outsider
communicated
juror
criminal
trial
appearing
offer
bribe
federal
bureau
investigation
investigated
incident
noted
sending
agent
midst
trial
investigate
juror
conduct
bound
impress
juror
remanded
district
determine
circumstances
impact
thereof
upon
juror
whether
prejudicial
hearing
interested
parties
permitted
participate
intrusion
jurisprudence
summarized
smith
phillips
ue
process
require
new
trial
every
time
juror
placed
potentially
compromising
situation
rule
trials
constitutionally
acceptable
virtually
impossible
shield
jurors
every
contact
influence
might
theoretically
affect
vote
due
process
means
jury
capable
willing
decide
case
solely
evidence
trial
judge
ever
watchful
prevent
prejudicial
occurrences
determine
effect
occurrences
happen
question
whether
instant
violation
rule
prejudiced
respondents
either
specifically
presumptively
theory
presence
alternate
jurors
jury
deliberations
might
prejudice
defendant
two
different
ways
either
alternates
actually
participated
deliberations
verbally
body
language
alternates
presence
exerted
chilling
effect
regular
jurors
see
watson
supra
allison
conversely
alternate
fact
abided
instructions
remain
orally
silent
otherwise
indicate
views
attitude
presence
alternate
operate
restraint
upon
regular
jurors
freedom
expression
action
see
little
substantive
difference
presence
alternate
presence
jury
room
unexamined
book
admitted
evidence
respondents
made
specific
showing
alternate
jurors
case
either
participated
jury
deliberations
chilled
deliberation
regular
jurors
need
decide
whether
testimony
score
alternate
jurors
regular
jurors
affidavits
hearing
violate
federal
rule
evidence
compare
watson
supra
beasley
whether
courts
appeals
authority
remand
hearings
plain
error
review
respondents
never
requested
hearing
thus
record
us
contains
direct
evidence
alternate
jurors
influenced
verdict
record
persuaded
instant
violation
rule
actually
prejudicial
presume
prejudice
purposes
rule
analysis
appeals
incorrect
finding
error
inherently
prejudicial
close
trial
alternate
jurors
indistinguishable
regular
jurors
along
regular
jurors
commenced
office
oath
see
tr
mar
received
normal
initial
admonishment
see
heard
evidence
arguments
identified
alternates
district
gave
final
set
instructions
see
app
instructions
district
specifically
enjoined
jurors
according
law
alternates
must
participate
deliberations
reiterated
going
ask
participate
ibid
appeals
supposed
injunction
contravened
almost
invariable
assumption
law
jurors
follow
instructions
richardson
marsh
presum
jurors
conscious
gravity
task
attend
closely
particular
language
trial
instructions
criminal
case
strive
understand
make
sense
follow
instructions
given
francis
franklin
see
also
strickland
washington
assessing
prejudice
purposes
ineffective
assistance
claim
presume
judge
jury
acted
according
law
think
mere
presence
alternate
jurors
entailed
sufficient
risk
chill
justify
presumption
prejudice
score
sum
respondents
met
burden
showing
prejudice
rule
whether
government
met
burden
showing
absence
prejudice
rule
respondents
forfeited
claim
error
issue
case
respondents
must
persuade
appellate
deviation
rule
prejudicial
conceded
error
case
affec
substantial
rights
appeals
authority
correct
need
consider
whether
error
prejudicial
warranted
correction
atkinson
standard
seriously
affect
ing
fairness
integrity
public
reputation
judicial
proceedings
judgment
appeals
reversed
case
remanded
proceedings
consistent
opinion
ordered
justice
kennedy
concurring
join
opinion
add
brief
statement
express
understanding
holding
notices
error
initiative
federal
rule
criminal
procedure
see
silber
per
curiam
may
awkward
say
case
decided
burden
proof
concepts
definition
none
parties
addressed
issue
opinion
phrased
care
indicate
burden
proof
concepts
normal
usual
mode
analysis
error
rule
see
ante
rules
may
apply
aggrieved
party
raised
issue
cases
however
party
raised
alleged
error
appeal
context
analysis
adopts
today
helpful
gives
operative
effect
difference
rule
cases
objection
preserved
leads
final
point
independent
force
rule
permitting
alternates
jury
room
deliberations
careful
note
case
submitted
assumption
error
follow
practice
question
premise
indeed
good
reasons
suppose
federal
rule
criminal
procedure
product
judgment
jury
system
given
stable
constant
structure
one
varied
without
consent
parties
see
reply
brief
course
lengthy
trial
defense
counsel
may
numerous
requests
rulings
pending
district
may
acquiesce
proposal
bench
concerning
jury
composition
counsel
concentrate
matters
deem
pressing
climate
trial
put
counsel
position
object
suggestion
compromises
federal
rules
case
specific
objection
made
overruled
systemic
costs
resulting
rule
violation
likely
significant
since
seem
difficult
government
show
absence
prejudice
required
avoid
reversal
conviction
rule
rule
based
certain
premises
group
dynamics
make
difficult
us
know
jury
deliberations
may
affected
defendants
seeking
reversal
rule
also
likely
experience
difficulties
proving
prejudice
makes
clear
today
operation
rule
permit
party
withhold
objection
presence
alternate
jurors
jury
deliberations
demand
automatic
reversal
justice
stevens
justice
white
justice
blackmun
join
dissenting
federal
rule
criminal
procedure
trial
judge
case
clear
unqualified
duty
dismiss
alternate
jurors
end
trial
indeed
admit
alternate
jurors
jury
room
afford
stranger
access
room
defendants
guilt
innocence
decided
question
trial
judge
failure
abide
strictures
rule
resulted
violation
principle
deliberations
jury
shall
remain
private
secret
every
case
advisory
committee
notes
quoting
virginia
erection
view
equally
evident
violation
implicated
substantial
rights
within
meaning
rule
agree
suggestion
part
iii
opinion
rule
errors
may
deemed
affect
substantial
rights
prejudicial
impact
particular
defendant
least
defects
bearing
jury
deliberative
function
subject
reversal
regardless
whether
prejudice
shown
difficult
measure
effects
jury
decision
also
defects
undermin
structural
integrity
criminal
tribunal
vasquez
hillery
racial
discrimination
selection
grand
jury
see
also
gray
mississippi
powell
concurring
improper
exclusion
juror
opposed
death
penalty
whether
harm
defendant
errors
call
question
integrity
jury
deliberations
may
harm
system
whole
sense
may
said
seriously
affect
fairness
integrity
public
reputation
judicial
proceedings
atkinson
making
candidates
reversal
rule
see
young
citing
atkinson
supra
phrase
substantial
rights
appears
twice
rule
rule
describes
harmless
error
rule
rule
connection
plain
error
rule
see
ante
presumably
words
meaning
time
used
majority
understanding
substantial
rights
correct
even
objection
respondents
alternates
presence
jury
deliberations
mandated
reversal
instead
rule
violation
subject
harmless
error
review
affect
substantial
rights
within
meaning
rule
concur
reasoning
lead
result
respondents
objected
trial
nonetheless
refused
follow
plain
dictates
rule
deliberately
rejecting
considered
judgment
rule
drafters
think
clear
reversal
proper
response
without
showing
prejudice
reading
substantial
rights
way
rule
rule
course
eliminate
difference
cases
objection
made
one
nonforfeited
error
affecting
substantial
rights
must
corrected
rule
forfeited
error
however
even
plain
affects
substantial
rights
may
corrected
discretion
reviewing
rule
see
ante
distinction
automatic
discretionary
reversal
gives
practical
effect
difference
harmless
error
plain
error
review
also
every
incentive
defendant
raise
objections
trial
level
case
instance
say
rule
violation
affected
substantial
rights
purposes
rule
answer
ultimate
view
difficult
question
presented
whether
appeals
properly
exercised
discretion
remedy
error
considering
nature
error
degree
respondents
said
consented
procedure
question
see
ante
likelihood
procedure
actually
affected
outcome
jury
deliberations
reasonable
judge
well
concluded
rule
error
case
call
reversal
rule
rather
opinion
emphasizing
significance
error
designed
provide
guidance
trial
courts
future
cases
might
viewed
appropriate
response
courts
appeals
however
allowed
wide
measure
discretion
supervision
litigation
respective
circuits
see
thomas
arn
certainly
courts
appeals
better
positioned
evaluate
need
firm
enforcement
procedural
rule
designed
protect
integrity
jury
deliberations
weigh
interest
enforcement
relevant
considerations
persuaded
appeals
abused
broad
discretion
affirm
judgment