United States v. Horacio Yepiz

One of the most valuable weapons in the arsenal of the trial attorney is the peremptory challenge. In a criminal trial, availability of this weapon is ensured pursuant to Rule 24 of the Federal Rules of Criminal Procedure. Specifically, Rule 24 provides that in a non-capital felony case, the prosecution is allowed six peremptory challenges and the defense is allowed ten peremptory challenges.

Appellant Horacio Yepiz (Yepiz) was tried and convicted of racketeering and violence in aid of a racketeering enterprise. Although Yepiz was entitled to exercise ten peremptory challenges, he was unable to do so because of a “use it or lose it” voir dire practice followed by the district court. This practice impermissibly deprived Yepiz of two of the peremptory challenges to which he was entitled. See United States v. Turner, 558 F.2d 535, 538 (9th Cir.1977) (explaining that the defense cannot be forced to lose a peremptory challenge each time it accepts a jury panel as then constituted). We affirm the convictions, however, under a plain error standard of review. The error by the district court, although plain, and affecting Yepiz’s substantial rights, did not “seriously affect! ]…