United States v. Yepiz

Acceptance of a jury panel as constituted cannot be used as a waiver of either party’s allotted peremptory challenges under Rule 24 of the Federal Rules of Criminal Procedure. Denial of a peremptory challenge does not affect the party’s substantial rights, if the challenged juror is not shown to be biased.

Appellant Horacio Yepiz, a member of the Vineland Boys Gang, was tried and convicted of racketeering and violence in aid or racketeering. During voir dire, the parties were notified of the courts “use it or lose it” policy on using peremptory challenges. If either party accepted a jury panel at any point during voir dire, any remaining peremptory challenges would be considered “used.” Yepiz used eight peremptory challenges and accepted a jury panel as then constituted. Later, a prospective juror was called and seated because neither side had any remaining challenges. The last juror, who had a law degree, worked with her husband for ten years in his estate planning business. She never practiced law. Rule 24 of the Federal Rules of Criminal Procedure provides each side with a specific number of peremptory challenges. “The ‘forced waiver’ feature of the ‘use it or lose it’ voir dire practice is an undue restriction on the exercise of peremptory challenges.’” Yepiz's acceptance of a jury panel as constitutes could not be used as an involuntary waiver of his remaining peremptory challenges. However, restriction of the use of peremptory challenges is not “per se reversible.” Under plain error review, the error must have seriously affected the “fairness, integrity, or public reputation of judicial proceedings.” Yepiz provided no evidence that the final juror was biased. AFFIRMED