OCTOBER TERM, 2002
Syllabus
NGUYEN
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 01-10873. Argued March 24, 2003-Decided June 9, 2003*
Petitioners were tried, convicted, and sentenced on federal
narcotics charges in the District Court of Guam, a territorial
court with subjectmatter jurisdiction over both federal-law and
local-law causes. The Ninth Circuit panel convened to hear their
appeals included two judges from that court, both of whom are
life-tenured Article III judges, and the Chief Judge of the
District Court for the Northern Mariana Islands, an Article IV
territorial-court judge appointed by the President and confirmed by
the Senate for a 10-year term. Neither petitioner objected to the
panel's composition before the cases were submitted for decision,
and neither sought rehearing to challenge the panel's authority to
decide their appeals after it affirmed their convictions. However,
each filed a certiorari petition claiming that the judgment is
invalid because a non-Article III judge participated on the
panel.
Held: The Ninth Circuit panel did not have the authority
to decide petitioners' appeals. Pp.74-83.
(a) In light of the relevant statutory provisions and historical
usage, it is evident that Congress did not contemplate the judges
of the District Court for the Northern Mariana Islands to be
"district judges" within the meaning of 28 U. S. C. § 292(a), which
authorizes the assignment of "one or more district judges within
[a] circuit" to sit on the court of appeals "whenever the business
of that court so requires." As used throughout Title 28, "district
court" means a "'court of the United States'" "constituted by
chapter 5 of this title." §451. Among other things, Chapter 5
creates a "United States District Court" for each judicial
district, § 132(a), exhaustively enumerates the districts so
constituted, § 133(a), and describes "district judges" as holding
office "during good behavior," § 134(a). Significantly, the
District Court for the Northern Mariana Islands is not one of the
enumerated courts, nor is it even mentioned in Chapter 5. See §
133(a). Because that court's judges are appointed for a term of
years and may be removed by the President for cause, they also do
not satisfy § 134(a)'s command for district judges to hold office
during good behavior. Although the Chief
*Together with No. 02-5034,
Phan v.
United States,
also on certiorari to the same court.
70
Syllabus
Judge of the District Court for the Northern Mariana Islands is
literally a "district judge" of a court "within the [Ninth]
[C]ircuit," such a reading of § 292(a) is so capacious that it
would also justify the designation of "district judges" of any
number of
state courts "within" the Ninth Circuit. Moreover,
historically, the term "United States District Court" in Title 28
has ordinarily excluded Article IV territorial courts, even when
their jurisdiction is similar to that of an Article III United
States District Court.
E. g., Mookini v.
United
States, 303 U. S.
201, 205. Pp.74-76.
(b) The Government's three grounds for leaving the judgments
below undisturbed are not persuasive. First, this Court's
precedents concerning alleged irregularities in the assignment of
judges do not compel application here of the
de facto
officer doctrine, which confers validity upon acts performed by a
person acting under the color of official title even though it is
later discovered that the legality of that person's appointment to
office is deficient,
Ryder v.
United States, 515 U. S. 177, 180.
Typically, the Court has found a judge's actions to be valid
de
facto when there is a "merely technical" defect of statutory
authority,
McDowell v.
United States, 159 U. S. 596, 601-602,
but not when, as here, there has been a violation of a statutory
provision that embodies weighty congressional policy concerning the
proper organization of the federal courts, see,
e. g., American
Constr. Co. v.
Jacksonville, T. &
K. W R.
Co., 148 U. S.
372, 387. Second, for essentially the same reasons, it is
inappropriate to accept the Government's invitation to assess the
merits of petitioners' convictions or whether the fairness,
integrity, or public reputation of the proceedings were impaired by
the composition of the panel. Third, the Government's argument that
the presence of a quorum of two otherwise-qualified judges on the
panel is sufficient to support the decision below is rejected for
two reasons. The federal quorum statute, 28 U. S. C. § 46(d), has
been on the books (in relevant part essentially unchanged) for over
a century, yet this Court has never doubted its power to vacate a
judgment entered by an improperly constituted court of appeals,
even when there was a quorum of judges competent to consider the
appeal. See,
e. g., United States v.
American-Foreign
S. S.
Corp., 363 U. S. 685. Moreover,
the statute authorizing courts of appeals to sit in panels, §
46(b), requires the inclusion of at least three judges in the first
instance. Although the two Article III judges who took part below
would have constituted a quorum had the original panel been
properly created, it is at least highly doubtful whether they had
any authority to serve by themselves as a panel. Thus, it is
appropriate to return these cases to the Ninth Circuit for fresh
consideration by a properly constituted panel. Pp. 77-83.
284 F.3d
1086, vacated and remanded.
71
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, and THOMAS, JJ., joined. REHNQUIST, C.
J., filed a dissenting opinion, in which SCALIA, GINSBURG, and
BREYER, JJ., joined,
post, p. 83.
Jeffrey T. Green argued the cause for petitioners. With
him on the briefs were
Howard Trapp and
Rawlen T.
Mantanona, both by appointment of the Court, 538 U. S. 920,
Carter G.
Phillips, and
Eric A. Shumsky.
Patricia A. Millett argued the cause for the United States. With
her on the brief were Solicitor General Olson, Assistant Attorney
General Chertoff, and Deputy Solicitor General Dreeben.t
JUSTICE STEVENS delivered the opinion of the Court. These cases
present the question whether a panel of the Court of Appeals
consisting of two Article III judges and one Article IV judge had
the authority to decide petitioners' appeals. We conclude it did
not, and we therefore vacate the judgments of the Court of
Appeals.
I
Petitioners are residents of the island of Guam, which has been
a possession of the United States since the end of the
Spanish-American War.1 The Navy administered the island, except for
the period of Japanese occupation during World War II, until
Congress established Guam as an unincorporated Territory with the
passage of the Organic Act of Guam in 1950.2 Pursuant to Congress'
authority under Article IV; § 3, of the Constitution to "make all
needful Rules and Regulations respecting the Territory or other
Property belonging
tGordon Rhea filed a brief for Thomas K. Moore as
amicus curiae urging affirmance.
1 See Treaty of Paris, Art. II, 30 Stat. 1755 (1899).
264 Stat. 384. See generally A. Leibowitz, Defining Status: A
Comprehensive Analysis of United States Territorial Relations 313,
323 (1989).
72
to the United States," the Organic Act of Guam created a
territorial court, the District Court of Guam, and vested it with
subject-matter jurisdiction over causes arising under both federal
law and locallaw.3 Petitioners were tried before a jury, convicted,
and sentenced in the District Court of Guam to lengthy prison terms
for federal narcotics offenses. Petitioners do not dispute that
court's jurisdiction to conduct their criminal trial and enter
judgments of conviction.
As authorized by statute,4 petitioners appealed their
convictions to the Court of Appeals for the Ninth Circuit. The
panel convened to hear their appeals included the Chief Judge and a
Senior Circuit Judge of the Ninth Circuit, both of whom are, of
course, life-tenured Article III judges who serve during "good
Behaviour" for compensation that may not be diminished while in
office. U. S. Const., Art. III, § 1. The third member of the panel
was the Chief Judge of the District Court for the Northern Mariana
Islands. That court is not an Article III court but an Article IV
territorial court with subject-matter jurisdiction substantially
similar
3 See Organic Act of Guam § 22, 64 Stat. 389, 48 U. S. C. §
1424. "The 'District Court of Guam' rather than 'United States
District Court of Guam' was chosen as the court's title, since it
was created under Art. IV, § 3, of the Federal Constitution rather
than under Art. III, and since § 22 vested the court with original
jurisdiction to decide both local and federal-question matters."
Guam v.
Olsen, 431 U. S. 195, 196-197,
n. 1 (1977) (citing S. Rep. No. 2109, 81st Cong., 2d Sess., 12
(1950)). The Guam Legislature was authorized as well to create
local courts and transfer to them jurisdiction over certain cases
that otherwise could be heard by the District Court of Guam. See
Olsen, 431 U. S., at 200-201 (citing
Agana Bay Dev. Co.
(Hong Kong) Ltd. v.
Supreme Court of Guam, 529 F.2d
952, 959 (CA9 1976) (Kennedy, J., dissenting)).
4 Title 28 U. S. C. § 1294(4) provides:
"[A]ppeals from reviewable decisions of the district and
territorial courts shall be taken to the courts of appeals as
follows:
"(4) From the District Court of Guam, to the Court of Appeals
for the Ninth Circuit."
73
to the jurisdiction of the District Court of Guam.5 The Chief
Judge of the District for the Northern Mariana Islands, unlike an
Article III judge, is appointed by the President and confirmed by
the Senate for a term of 10 years, "unless sooner removed by the
President for cause." 6
The highly unusual presence of a non-Article III judge as a
member of the Ninth Circuit panel occurred during special sittings
in Guam and the Northern Mariana Islands. When the Court of Appeals
heard arguments in Guam, the Chief Judge of the Ninth Circuit
invited the Chief Judge of the District Court for the Northern
Mariana Islands to participate. A judge of the District Court of
Guam was similarly invited to participate in appeals heard while
the Ninth Circuit sat in the Northern Mariana Islands.
The panel affirmed petitioners' convictions without dissent.
284 F.3d
1086 (2002). Neither Nguyen nor Phan objected to the
composition of the panel before the cases were submitted for
decision; neither petitioner sought rehearing after the Court of
Appeals rendered judgment to challenge the panel's authority to
decide their appeals. Each did, however, file a petition for
certiorari raising the question whether the judgment of the Court
of Appeals is invalid because of the participation of a non-Article
III judge on the panel. In accordance with this Court's Rule 10(a),
we granted the writ, 537 U. S. 999 (2002), to determine whether
5"The District Court for the Northern Mariana Islands shall have
the jurisdiction of a District Court of the United States,
including, but not limited to, the diversity jurisdiction provided
for in section 1332 of title 28 and that of a bankruptcy court of
the United States.
"The district court shall have original jurisdiction in all
causes in the Northern Mariana Islands not described in subsection
(a) of this section jurisdiction over which is not vested by the
Constitution or laws of the Northern Mariana Islands in a court or
courts of the Northern Mariana Islands." 48 U. S. C. § 1822. The
text of the statute closely follows the corresponding provisions of
the Organic Act of Guam. See S. Rep. No. 95-475, p. 3 (1977).
648 U. S. C. § 1821(b)(1).
74
the Court of Appeals had "so far departed from the accepted and
usual course of judicial proceedings as to call for an exercise of
this Court's supervisory powers." Pet. for Cert. in No. 01-10873,
p. 6; Pet. for Cert. in No. 02-5034, p. 5. For the following
reasons, we find these to be appropriate cases for the exercise of
that power.
II
We begin with the congressional grant of authority permitting,
in certain circumstances, the designation of district judges to
serve on the courts of appeals. In relevant part, the designation
statute authorizes the chief judge of a circuit to assign "one or
more district judges within the circuit" to sit on the court of
appeals "whenever the business of that court so requires." 28 U. S.
C. § 292(a). Section 292(a) itself does not explicitly define the
"district judges" who may be assigned to the court of appeals.
However, as other provisions of law make perfectly clear, judges of
the District Court for the Northern Mariana Islands are not
"district judges" within the meaning of § 292(a).
Outside of § 292(a), Title 28 contains several particularly
instructive provisions. The term "district court" as used
throughout Title 28 is defined to mean a " 'court of the United
States'" that is "constituted by chapter 5 of this title." § 451.
Chapter 5 of Title 28 in turn creates a "United States District
Court" for each judicial district. § 132(a) ("There shall be in
each judicial district a district court which shall be a court of
record known as the United States District Court for the
district"). And "district judge[s]" are established as the members
of those courts. § 132(b) ("Each district court shall consist of
the district judge or judges for the district in regular active
service"). The judicial districts constituted by Chapter 5 are then
exhaustively enumerated. § 133(a) ("The President shall appoint, by
and with the advice and consent of the Senate, district judges for
the several ju-
75
dicial districts, as follows [listing districts]"). Lastly,
Chapter 5 describes "district judges" as holding office "during
good behavior." § 134(a).
Taking these provisions together, § 292(a) cannot be read to
permit the designation to the court of appeals of a judge of the
District Court for the Northern Mariana Islands. Significantly, the
District Court for the Northern Mariana Islands is not one of the
courts constituted by Chapter 5 of Title 28, nor is that court even
mentioned within Chapter 5.7 See § 133(a). Because the judges of
the District Court for the Northern Mariana Islands are appointed
for a term of years and may be removed by the President for cause,
they also do not satisfy the command for district judges within the
meaning of Title 28 to hold office during good behavior. §
134(a).
The Government agrees these statutory provisions are best read
together as not permitting the Chief Judge of the Northern Mariana
Islands to sit by designation on the Ninth Circuit. The Government
maintains, however, that the erroneous designation in these cases
was not plainly impermissible because Title 28 does not expressly
forbid it or explicitly define the term "district judge" separately
from the term "district court." This contention requires an
excessively strained interpretation of the statute. To be sure, a
literal reading of the words "district judges" in isolation from
the rest of the statute might arguably justify assigning the Chief
Judge of the District Court for the Northern Mariana Islands for
service on the Court of Appeals, for he is called a "district
judge" of a court "within the [Ninth] [C]ircuit." But a literal
reading of that sort is so capacious that it would also justify the
designation of "district judges" of any number of
7The District Court for the Northern Mariana Islands is instead
established in Chapter 17 of Title 48 ("Territories and Insular
Possessions"). See § 1821.
76
state courts "within" the Ninth Circuit.8 The statute
cannot plausibly be interpreted to authorize the improper panel
assignment in these cases.
Moreover, we do not read the designation statute without regard
for the "historic significance" of the term "United States District
Court" used in Title 28.
Mookini v.
United States,
303 U. S. 201,
205 (1938). "[W]ithout an addition expressing a wider connotation,"
that term ordinarily excludes Article IV territorial courts, even
when their jurisdiction is similar to that of a United States
District Court created under Article III.
Ibid. See also
Summers v.
United States, 231 U. S. 92, 101-102
(1913) ("[T]he courts of the Territories may have such jurisdiction
of cases arising under the Constitution and laws of the United
States as is vested in the circuit and district courts, but this
does not make them circuit and district courts of the United
States");
Stephens v.
Cherokee Nation, 174 U. S. 445, 476-477
(1899) ("It must be admitted that the words 'United States District
Court' were not accurately used ... [to refer to] the United States
Court in the Indian Territory"). Construing the relevant statutory
provisions together with further aid from historical usage, it is
evident that Congress did not contemplate the judges of the
District Court for the Northern Mariana Islands to be "district
judges" within the meaning of § 292(a). It necessarily follows that
the appointment of one member of the panel deciding petitioners'
appeals was unauthorized.9
8 Alaska, Hawaii, Idaho, Montana, Nevada, and Washington are all
States within the Ninth Circuit whose judiciaries include "district
judges." See Alaska Stat. §§ 22.15.010, 22.15.020, 22.20.010
(2002); Haw. Const., Art. VI, § 1; Haw. Rev. Stat. § 604-1 (1993);
Idaho Const., Art. V, § 11; Idaho Code § 1-701 (1948-1998); Mont.
Const., Art. VII, §§ 1, 4, 6; Nev. Const., Art. 6, §§ 5-6; Nev.
Rev. Stat. § 1.010 (1995); Wash. Const., Art. IV, § 6 (West Supp.
2003); Wash. Rev. Code §§ 3.30.015, 3.30.030, 3.34.010, 3.66.010
(1988 and West Supp. 2003).
9 Petitioners contend that the participation of an Article IV
judge on the panel violated structural constitutional guarantees
embodied in Article III and in the Appointments Clause, Art. II, §
2, cl. 2, of the Constitu-
77
III
Although the Government concedes that the panel of the Court of
Appeals was improperly constituted, it advances three grounds on
which the judgments below may rest undisturbed. Two of the grounds
on which we are urged to affirm concern petitioners' failure to
object to the panel's composition in the Court of Appeals. Relying
on the so-called
"de facto officer" doctrine, the Government
contends petitioners' failure to challenge the panel's composition
at the earliest practicable moment completely forecloses relief in
this Court. The Government also contends that petitioners do not
meet the requirements for relief under plain-error review. The
presence of a quorum of two otherwise-qualified judges on the Court
of Appeals panel is invoked as the third ground sufficient to
support the decision below. We do not find these contentions
persuasive.
The
de facto officer doctrine, we have explained,
"confers validity upon acts performed by a person acting under the
color of official title even though it is later discovered that the
legality of that person's appointment or election to office is
deficient."
Ryder v.
United States, 515 U. S. 177, 180
(1995). Whatever the force of the
de facto officer doctrine
in other circumstances, an examination of our precedents concerning
alleged irregularities in the assignment of judges does not compel
us to apply it in these cases.
Typically, we have found a judge's actions to be valid de
facto when there is a "merely technical" defect of statutory
authority.
Glidden Co. v.
Zdanok, 370 U. S. 530, 535 (1962)
(plurality opinion of Harlan, J.). In
McDowell v.
United
States, 159 U. S.
596, 601-602 (1895), for example, the Court declined to notice
alleged irregularities in a Circuit Judge's designation of a
District Judge for temporary service in another district. See also
Ball v.
United States, 140 U. S. 118,
tion. We find it unnecessary to discuss the constitutional
questions because the statutory violation is clear.
78
128-129 (1891) (assigned judge had
de facto authority to
replace a deceased judge even though he had been designated to
replace a disabled judge). We observed in
McDowell, however,
that the judge whose assignment had been questioned was otherwise
qualified to serve, because he was "a judge of the United States
District Court, having all the powers attached to such office," and
because the Circuit Judge was otherwise empowered to designate him.
159 U. S., at 60l.
By contrast, we have agreed to correct, at least on direct
review, violations of a statutory provision that "embodies a strong
policy concerning the proper administration of judicial business"
even though the defect was not raised in a timely manner.
Glidden, 370 U. S., at 536 (plurality opinion). In
American Constr. Co. v.
Jacksonville, T. &
K.
W R. Co., 148 U. S. 372 (1893), the case Justice Harlan cited
for this proposition in
Glidden, a judgment of the Circuit
Court of Appeals was challenged because one member of that court
had been prohibited by statute from taking part in the hearing and
decision of the appea1.10 This Court succinctly observed: "If the
statute made him incompetent to sit at the hearing, the decree in
which he took part was unlawful, and perhaps absolutely void, and
should certainly be set aside or quashed by any court having
authority to review it by appeal, error or
certiorari." 148
U. S., at 387. The
American Constr. Co. rule was again
applied in
William Cramp &
Sons Ship & Engine
Building Co. v.
International Curtiss Marine Tur-
10 The petitioners in
American Constr. Co. challenged the
participation of a Circuit Judge who, while sitting as a trial
judge, had entered an order closely related to the matter under
review in the Circuit Court of Appeals. At the time, the relevant
statute governing the composition of the circuit courts of appeals
provided that "no justice or judge before whom a cause or question
may have been tried or heard in a district court, or existing
circuit court, shall sit on the trial or hearing of such cause or
question in the circuit court of appeals." Evarts Act, ch. 517, §
3,26 Stat. 827.
79
bine Co., 228 U. S. 645 (1913),
even though the parties had consented in the Circuit Court of
Appeals to the participation of a District Judge who was not
permitted by statute to consider the appeal.
Id., at 650.
Rather than sift through the underlying merits, we remanded to the
Circuit Court of Appeals "so that the case may be heard by a
competent court, [organized] conformably to the requirements of the
statute."
Id., at 651. See also
Moran v.
Dillingham, 174 U. S. 153, 158 (1899)
("[T]his court, without considering whether that decree was or was
not erroneous in other respects, orders the Decree of the Circuit
Court of Appeals to be set aside and quashed, and the case remanded
to that court to be there heard and determined according to law by
a bench of competent judges" (emphasis deleted)).
We are confronted in petitioners' cases with a question of
judicial authority more fundamental than whether "some effort has
been made to conform with the formal conditions on which [a
judge's] particular powers depend."
Johnson v.
Manhattan
R. Co., 61 F.2d 934, 938
(CA2 1932) (L. Hand, J.). The
difference between the irregular judicial designations in
McDowell and
Ball and the impermissible panel
designation in the instant cases is therefore the difference
between an action which could have been taken, if properly pursued,
and one which could never have been taken at all. Like the statutes
in
William Cramp &
Sons, Moran, and
American
Constr. Co., § 292(a) embodies weighty congressional policy
concerning the proper organization of the federal courts.ll
11 The Government seeks to distinguish
William Cramp
&
Sons, Moran, and
American Constr. Co. on the
ground that the statutory provision at issue in each of those
cases, unlike § 292(a), "expressly prohibited" the challenged
judge's participation. Brief for United States 18. In light of our
conclusion that there is no plausible interpretation of § 292(a)
permitting the designation in the instant cases, see
supra,
at 74-76, we think this is a distinction without a difference. In
any event, there was no "express" prohibition at play in
United
States v.
American-Foreign S. S.
Corp., 363 U. S.
685, 690-691 (1960), in which this Court vacated the judgment of
a
80
Section 292(a) does not permit any assignment to service on the
courts of appeals of a district judge who does not enjoy the
protections set forth in Article III. Congress' decision to
preserve the Article III character of the courts of appeals is more
than a trivial concern, cf.
Northern Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U. S. 50, 57-60 (1982)
(plurality opinion), and is entitled to respect. The Chief Judge of
the Northern Mariana Islands did not purport to have "all the
powers attached to" the position of an Article III judge,
McDowell, 159 U. S., at 601, nor was the Chief Judge of the
Ninth Circuit otherwise permitted by § 292(a) to designate him for
service on an Article III court. Accordingly, his participation
contravened the statutory requirements set by Congress for the
composition of the federal courts of appeals.
For essentially the same reasons, we think it inappropriate to
accept the Government's invitation to assess the merits of
petitioners' convictions or whether the fairness, integrity, or
public reputation of the proceedings were impaired by the
composition of the panel. It is true, as the Government observes,
that a failure to object to trial error ordinarily limits an
appellate court to review for plain error. See 28 U. S. C. § 2111;
Fed. Rule Crim. Proc. 52(b). But to ignore the violation of the
designation statute in these cases would incorrectly suggest that
some action (or inaction) on petitioners' part could create
authority Congress has quite carefully withheld. Even if the
parties had
expressly stipulated to the participation of a
non-Article III judge in the consider-
Court of Appeals, sitting en bane, because a Senior Circuit
Judge who had participated in the decision was not authorized by
statute to do so. See also id., at 691 (Harlan, J., dissenting)
("The statute need hardly be read, as the Court now holds it should
be, as saying that a case in an
en bane court shall be
'heard and determined' by the active circuit judges").
81
ation of their appeals, no matter how distinguished and well
qualified the judge might be, such a stipulation would not have
cured the plain defect in the composition of the panel.12 See
William Cramp &
Sons, 228 U. S., at 650.
More fundamentally, our enforcement of § 292(a)'s outer bounds
is not driven so much by concern for the validity of petitioners'
convictions at trial but for the validity of the composition of the
Court of Appeals. As a general rule, federal courts may not use
their supervisory powers to circumvent the obligation to assess
trial errors for their prejudicial effect. See
Bank of Nova
Scotia v.
United States, 487 U. S. 250, 254-255
(1988). Because the error in these cases involves a violation of a
statutory provision that "embodies a strong policy concerning the
proper administration of judicial business," however, our exercise
of supervisory power is not inconsistent with that general rule.13
Glidden, 370 U. S., at 536 (plurality opinion). Thus, we
invalidated the judgment of a Court of Appeals without assessing
prejudice, even though urged to do so, when the error alleged was
the improper composition of that court. See
United States v.
American-Foreign S. S.
Corp., 363 U. S. 685, 690-691
(1960) (vacating judgment of en banc Court of Appeals because
participation by Senior Circuit Judge was not provided by
statute).
12 We agree with the Government's submission that the improper
composition of the court below was "an isolated, one-time mistake."
Brief for United States 5. Countervailing concerns for
gamesmanship, which animate the requirement for contemporaneous
objection, therefore dissipate in these cases in light of the
rarity of the improper panel assignment at issue.
13 "The authority which Congress has granted this Court to
review judgments of the courts of appeals undoubtedly vests us not
only with the authority to correct errors of substantive law, but
to prescribe the method by which those courts go about deciding the
cases before them."
Lehman Brothers v.
Schein,
416 U. S. 386,
393 (1974) (REHNQUIST, J., concurring).
82
It is also true that two judges of a three-judge panel
constitute a quorum legally able to transact business.14 Moreover,
settled law permits a quorum to proceed to judgment when one member
of the panel dies or is disqualified.
United States v.
Allied Stevedoring Corp., 241 F.2d
925, 927 (CA2 1957) (L. Hand, J.). For two reasons, however,
the presence of a quorum on the Ninth Circuit panel does not save
the judgments below. First, the quorum statute has been on the
books (in relevant part essentially unchanged) for over a
century,15 yet this Court has never doubted its power to vacate the
judgment entered by an improperly constituted court of appeals,
even when there was a quorum of judges competent to consider the
appeal. See
United States v.
American-Foreign S. S.
Corp., 363 U.
S. 685 (1960);
William Cramp &
Sons Ship
&
Engine Building Co. v.
International Curtiss Marine
Turbine Co., 228
U. S. 645 (1913);
American Constr. Co. v.
Jacksonville, T. &
K. W R. Co., 148 U. S. 372
(1893).
Second, the statutory authority for courts of appeals to sit in
panels, 28 U. S. C. § 46(b), requires the inclusion of at least
three judges in the first instance.16 As the Second Circuit
14 Title 28 U. S. C. § 46(d) provides: "A majority of the number
of judges authorized to constitute a court or panel thereof ...
shall constitute a quorum." As used in § 46(d),
"quorum ...
means such a number of the members of the court as may legally
transact judicial business."
Tobin v. Ramey,
206 F.2d
505, 507 (CA5 1953).
15 See Act of Mar. 3, 1911, ch. 6, § 117,36 Stat. 1131:
"There shall be in each circuit a circuit court of appeals,
which shall consist of three judges, of whom two shall constitute a
quorum .... "
The Evarts Act, which established the original circuit courts of
appeals, contained essentially the same provision:
"[T]here is hereby created in each circuit a circuit court of
appeals, which shall consist of three judges, of whom two shall
constitute a quorum." Ch. 517, § 2, 26 Stat. 826.
16 Title 28 U. S. C. § 46(b) provides, in pertinent part: "In
each circuit the court may authorize the hearing and determination
of cases and controversies by separate panels, each consisting of
three judges, at least a majority
83
has noted, Congress apparently enacted § 46(b) in part "to
curtail the prior practice under which some circuits were routinely
assigning some cases to two-judge panels." Mur
ray v.
National Broadcasting Co., 35 F.3d
45, 47 (1994). It is "clear that the statute was not intended
to preclude disposition by a panel of two judges in the event that
one member of a three-judge panel to which the appeal is assigned
becomes unable to participate,"
ibid., but it is less clear
whether the quorum statute offers post judgment absolution for the
participation of a judge who was not otherwise competent to be part
of the panel under § 292(a). Thus, although the two Article III
judges who took part in the decision of petitioners' appeals would
have constituted a quorum if the original panel had been properly
created, it is at least highly doubtful whether they had any
authority to serve by themselves as a panel. In light of that
doubt, it is appropriate to return these cases to the Ninth Circuit
for fresh consideration of petitioners' appeals by a properly
constituted panel organized "comformably to the requirements of the
statute." 17
William Cramp &
Sons, 228 U. S., at
651.
Accordingly, we vacate the judgments of the Court of Appeals and
remand these cases for further proceedings consistent with this
opinion.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA, JUSTICE
GINSBURG, and JUSTICE BREYER join, dissenting.
Under Federal Rule of Criminal Procedure 52(b), courts have "a
limited power to correct errors that were forfeited
of whom shall be judges of that court, unless such judges cannot
sit because recused or disqualified .... "
17Unlike the dissent, we believe that it
would "flou[t]
the stated will of Congress,"
post, at 84 (opinion of
REHNQUIST, C. J.), and call into serious question the integrity as
well as the public reputation of judicial proceedings to permit the
decision below to stand, for
no one other than a properly
constituted panel of Article III judges was empowered to exercise
appellate jurisdiction in these cases.
84
because [they were] not timely raised" below.
United
States v.
Olano, 507 U. S. 725, 731 (1993)
(emphasis added). Even when an error has occurred that is "'plain'"
and "'affect[s] substantial rights,'" id., at 732, "'an appellate
court may ... exercise its discretion to notice a forfeited error
...
only if ... the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings,'"
United States v.
Cotton, 535 U. S. 625, 631-632
(2002) (quoting
Johnson v.
United States, 520 U. S. 461, 467
(1997)) (emphasis added). By ignoring this well-established
limitation of our remedial authority, the Court flouts the stated
will of Congress and almost 70 years of our own precedent.
It was undoubtedly a mistake, for the reasons stated by the
Court,
ante, at 74-76, for the appellate panel to include an
Article IV judge. Exercise of our certiorari jurisdiction was
warranted to review the case and to state the law correctly. To
that extent, I agree with the Court's opinion. But I do not agree
that that error is a valid basis for vacating petitioners'
convictions, because even assuming that the error affected
petitioners' substantial rights, it simply did not seriously affect
the fairness, integrity, or public reputation of judicial
proceedings.
Petitioners knew of the composition of the panel of the Court of
Appeals more than a week before the case was orally argued. App. 7,
9-12. They made no objection then or later in that court,
preferring to wait until the panel had decided against them on the
merits to raise it. The Court first concedes, as it must, that a
failure to object to error limits an appellate court to review for
plain error.
Ante, at 80. But the Court then completely
ignores the fact that "the authority created by Rule 52(b) is
circumscribed."
Olano, supra, at 732. Indeed, the opinion
fails to cite, much less apply,
Olano or our other recent
cases reaffirming that "we exercise our power under Rule 52(b)
sparingly,"
Jones v.
United States, 527 U. S. 373, 389
(1999), and only" 'in those circumstances in which a miscarriage of
justice would other-
85
wise result,'"
Olano, supra, at 736 (quoting
United
States v.
Young, 470 U. S. 1, 15
(1985)).
This failure is baffling in light of our well-established
precedent and the clarity of Congress' intent to limit federal
courts' authority to correct plain error. As we explained in
Olano, we articulated the standard that should guide the
exercise of remedial discretion under Rule 52(b) almost 70 years
ago in
United States v.
Atkinson, 297 U. S. 157 (1936). 507
U. S., at 736. Congress then codified that standard in Rule 52(b).
Ibid. (quoting
Young, supra, at 7). Since then, "we
repeatedly have quoted the
Atkinson language in describing
plain-error review."
Olano, supra, at 736 (citing cases).
According to this long line of cases, when an error is plain and
affects substantial rights, "an appellate court
must then
determine whether the forfeited error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings
before it may exercise its discretion to correct the error."
Johnson, supra, at 469-470 (quoting
Olano, supra, at
736) (internal quotation marks omitted; emphasis added).
This mandatory inquiry confirms that no "miscarriage of justice"
would result if petitioners' convictions were affirmed. Petitioners
make no claim that Chief Judge Munson was biased or incompetent.
His character and abilities as a jurist, peculiarly experienced in
adjudicating matters arising within the United States Territories,
stand unimpeached. It is therefore difficult to understand how
fairness or the public reputation of the judicial process is
advanced by allowing criminal defendants, whose convictions are
supported by "'overwhelming'" evidence,
Cotton, supra, at
633, 634, and whose arguments on appeal were meritless, to consume
the public resources necessary for a second appellate review. *
*Drug enforcement agents seized 443.8 grams of methamphetamine
in a package that was mailed to Phan and opened in Nguyen's
apartment.
284 F.3d
1086, 1087-1088 (CA9 2002). In that apartment, agents also
86
The Court proffers several justifications for ignoring our
controlling precedents, none of which is persuasive. First, the
Court's reliance on
United States v.
American-Foreign
S. S.
Corp., 363 U. S. 685 (1960), is
misplaced. See
ante, at 79-80, n. 11, 81, 82. In that case,
Circuit Judge Medina retired three months after the Court of
Appeals for the Second Circuit granted a petition for rehearing en
banc, but before the court issued its en banc decision. 363 U. S.,
at 686-687. He nonetheless participated in consideration of the
case and subsequently joined the en banc decision.
Id., at
687. This Court vacated the judgment because, under the relevant
statute, a "court in banc" could consist only of "active circuit
judges."
Id., at 685 (quoting 28 U. S. C. § 46(c) (internal
quotation marks omitted)).
American-Foreign does not speak to the situation here
because the petitioner in that case did not forfeit the error.
Forfeiture is "'the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.'"
Johnson, 520 U. S., at 465 (quoting
Olano, 507 U. S.,
at 731). The petitioner in
American-Foreign did not so fail.
Rather, it objected at the earliest possible moment: immediately
after the Court of Appeals issued an en banc decision that Judge
Medina joined. It did not know that Judge Medina would retire or
then participate in the en banc decision until after the case was
briefed and submitted; it availed itself of the earliest
opportunity to object to this error by filing a
discovered drug paraphernalia, "nearly a hundred little plastic
zip lock bags," and $6,000 in cash.
Id., at 1088, 1091.
All three members of the Ninth Circuit panel agreed that
petitioners' challenges-that the District Court abused its
discretion in admitting certain evidence, and that the evidence was
insufficient to support the convictions-lacked merit. Judge
Goodwin, writing for the court, explained that petitioners'
evidentiary challenges were "overstate[d]," and that the District
Court "clearly performed the necessary" analysis.
Id., at
1090. With respect to petitioners' sufficiency of the evidence
argument, the judges were also unanimous "[t]here was plenty of
evidence," id., at 1091, and "abundant facts," id., at 1090, in
support of petitioners' convictions.
87
motion for further rehearing en bane. Petitioner did not forfeit
the error, so Rule 52(b) did not apply.
That is not the case here. Petitioners Nguyen and Phan learned
before oral argument that Chief Judge Munson was a member of their
Court of Appeals panel. They nonetheless failed to object at oral
argument or in a petition for rehearing en bane. This forfeiture
requires us to apply the
Olano test faithfully.
The Court also relies mistakenly on
William Cramp &
Sons Ship &
Engine Building Co. v.
International
Curtiss Marine Turbine Co., 228 U. S. 645 (1913), and
American Constr. Co. v.
Jacksonville, T. &
K.
W R. Co., 148 U.
S. 372 (1893). Ante, at 78-79, and n. 11. In both cases,
this Court considered an Act of Congress providing that" 'no judge
before whom a cause or question may have been tried or heard in a
district court ... shall sit on the trial or hearing of such cause
or question in the Circuit Court of Appeals.'" 228 U. S., at 649;
148 U. S., at 387. This Court held that, when a district judge sat
in contravention of that "comprehensive and inflexible"
prohibition, 228 U. S., at 650, the court of appeals was
statutorily unable to act. See also
American Construction,
supra, at 387.
But these cases do not control here because, as the Court fails
to note, both cases predate our adoption of the standard for
plain-error review in
Atkinson in 1936, and Congress'
codification of that standard in Rule 52(b) in 1944. This, and not
some broader principle, explains the Court's failure in those cases
to apply our modern plain-error analysis. The Court has no such
excuse. The cases can also easily be distinguished from this
litigation on the facts: They held only that courts constituted "in
violation of the
express prohibitions of [a] statute" lack
the authority to act.
Cramp, 228 U. S., at 650 (emphasis
added). In contrast, the Ninth Circuit panel in this litigation did
not run afoul of any "comprehensive and inflexible" statutory
"prohibition."
Ibid. Rather, the error must be deduced by
negative implication,
88
from a series of statutes that describe the proper use of
district judges in panels of the Courts of Appeals. See
ante, at 75-76.
The Court also says that "to ignore the violation of the
designation statute in these cases would incorrectly suggest that
some action (or inaction) on petitioners' part could create
authority Congress has quite carefully withheld."
Ante, at
80. But proper affirmance of petitioners' convictions on the ground
that the error did not affect the fairness, integrity, or public
reputation of judicial proceedings would not so suggest. The
Government has conceded the error, and the Court's opinion properly
makes clear to the Courts of Appeals that Chief Judge Munson's
participation constituted plain error. Indeed, the Court
unwittingly explains why its own holding is mistaken: By ignoring
the limits that Congress has imposed on appellate courts'
discretion via Rule 52(b), the Court "create[s]" for itself and
exercises "authority [that] Congress has quite carefully withheld."
Ibid.
On this record, there is no basis for concluding that the error
seriously affected the fairness, integrity, or public reputation of
judicial proceedings. No miscarriage of justice will result from
deciding not to notice the plain error here. Accordingly, I would
proceed to address petitioners' constitutional claims. Petitioners
argue that the designation of a non-Article III judge to sit on the
Ninth Circuit panel violated the Appointments Clause, U. S. Const.,
Art. II, § 2, cl. 2, and the structural guarantees embodied in
Article III. I would decline to address the first question because
it was "neither raised nor decided below, and [was] not presented
in the petition for certiorari."
Blessing v.
Freestone,
520 U. S. 329, 340, n. 3 (1997).
Petitioners' second constitutional claim, like their statutory
one, is subject to plain-error review. "No procedural principle is
more familiar to this Court than that a constitutional right may be
forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before
89
a tribunal having jurisdiction to determine it."
Yakus v.
United States, 321 U. S. 414, 444
(1944);
Johnson, 520 U. S., at 465. See also
Cotton,
535 U. S., at 631-633 (applying plain-error review to a claimed
violation of
Apprendi v.
New Jersey, 530 U. S. 466 (2000));
Plaut v.
Spendthrift Farm, Inc., 514 U. S. 211, 231 (1995)
("[T]he proposition that legal defenses based upon doctrines
central to the courts' structural independence can never be waived
simply does not accord with our cases");
Commodity Futures
Trading Comm'n v.
Schor, 478 U. S. 833, 848-849
(1986) ("[A]s a personal right, Article Ill's guarantee of an
impartial and independent federal adjudication is subject to
waiver, just as are other personal constitutional rights that
dictate the procedures by which civil and criminal matters must be
tried").
Assuming,
arguendo, that petitioners could satisfy the
first three elements of the plain-error inquiry, see
Olano,
507 U. S., at 732;
supra, at 84-85, their constitutional
claim fails for the same reason as does their statutory claim:
Petitioners have not shown that the claimed error seriously
affected the fairness, integrity, or public reputation of judicial
proceedings. See
supra, at 85. I would therefore affirm the
judgment of the Court of Appeals.
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