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No. 98-1255. Argued November 29, 1999-Decided January 19,2000

Respondent Martinez-Salazar and a codefendant were charged with a variety of federal offenses. As the Federal Rules of Criminal Procedure instruct, the District Court allotted them 10 peremptory challenges exercisable jointly in the selection of 12 jurors, Rule 24(b), and another such challenge exercisable in the selection of an alternate juror, Rule 24(c). Because prospective juror Don Gilbert indicated several times that he would favor the prosecution, the codefendants challenged him for cause, but the District Court declined to excuse him. Mter twice objecting, unsuccessfully, to the for-cause ruling, Martinez-Salazar used a peremptory challenge to remove Gilbert. The codefendants subsequently exhausted all of their peremptory challenges. At the close of jury selection, the District Court read the names of the jurors to be seated and asked if the prosecutor or defense counsel had any objections to any of those jurors. Martinez-Salazar's counsel responded: "None from us." At the conclusion of the trial, Martinez-Salazar was convicted on all counts. On appeal, the Ninth Circuit agreed with him (and the Government here does not contest) that the District Court's refusal to strike Gilbert for cause was an abuse of discretion. This error, the Ninth Circuit held, did not violate the Sixth Amendment, because Gilbert was removed and the impartiality of the jury eventually seated was not challenged. But the Court of Appeals further concluded that the District Court's mistake resulted in a violation of Martinez-Salazar's Fifth Amendment due process rights because it forced him to use a peremptory challenge curatively, thereby impairing his right to the full complement of peremptory challenges to which federal law entitled him. Such an error, the Court of Appeals held, requires automatic reversal.

Held: A defendant's exercise of peremptory challenges pursuant to Rule 24 is not denied or impaired when the defendant chooses to use such a challenge to remove a juror who should have been excused for cause. Pp.311-317.

(a) Although the peremptory challenge plays an important role in reinforcing a defendant's constitutional right to trial by an impartial jury, see, e. g., Swain v. Alabama, 380 U. S. 202, 212-213, 218-219, this Court has long recognized that such challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory


challenges are not of federal constitutional dimension, see, e. g., Ross v. Oklahoma, 487 U. S. 81, 88. Peremptory challenges in federal criminal trials are governed by Rule 24 of the Federal Rules of Criminal Procedure. Rule 24(b) prescribes, inter alia, that for offenses "punishable by imprisonment for more than one year, ... the defendant or defendants [are] jointly [entitled] to 10 peremptory challenges." Rule 24(c) further provides that when, as in this case, an alternate juror is to be selected, each side is entitled to one peremptory challenge in selecting that juror. The question to which the Court turns is whether Martinez-Salazar was denied any right for which Rule 24 provides. Pp. 311-313.

(b) Ross dealt with a state-law question resembling the one presented here. This Court first rejected the Ross defendant's position that, without more, the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. 487 U. S., at 88. So long as the jury that sits is impartial, the Court held, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. Ibid. The Court then rejected the defendant's due process objection that forced use of a peremptory challenge to cure a trial court's error in denying a challenge for cause arbitrarily deprived him of the full complement of peremptory challenges allowed under Oklahoma law. Id., at 89. An Oklahoma statute accorded the defendant nine such challenges. Oklahoma courts had read into that grant a requirement that a defendant who disagreed with the trial court's ruling on a for-cause challenge must, in order to preserve the claim that the ruling deprived him of a fair trial, exercise a peremptory challenge to remove the juror. Ibid. Even then, under state law, the error was grounds for reversal only if the defendant exhausted all peremptory challenges, and an incompetent juror therefore was forced upon him. Ibid. The defendant in Ross, the Court concluded, did not lose any state-law right when he used one of his nine challenges to remove a juror who should have been excused for cause; rather, he received all that state law allowed him, and the fair trial that the Federal Constitution guaranteed. Id., at 90-91. Pp. 313-314.

(c) This Court rejects the Government's contention that federal law, like the Oklahoma statute considered in Ross, should be read to require a defendant to use a peremptory challenge to strike a juror who should have been removed for cause, in order to preserve the claim that the for-cause ruling impaired the defendant's right to a fair trial. Although this Court has sanctioned various limitations on the exercise of peremptory challenges that could be viewed as effectively reducing the number of challenges available to a defendant, see, e. g., Stilson v. United States, 250 U. S. 583, 586, these cases address procedures under which such

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