NGUYEN v. UNITED STATES

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69 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 subject-
matter 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 ob-
jected 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 be-
cause a non-Article III judge participated on the panel.
Held: The Ninth Circuit panel did not have the authority to decide peti-
tioners’ 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 judi-
cial district, § 132(a), exhaustively enumerates the districts so consti-
tuted, § 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 dis-
trict 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.

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70 NGUYEN v. UNITED STATES
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 read-
ing 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 concern-
ing 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 author-
ity, 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 em-
bodies 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 inclu-
sion 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 doubt-
ful 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.

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Opinion of the Court
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. Manta-
nona, both by appointment of the Court, 538 U. S. 920, Car-
ter 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.†
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 unincorpo-
rated 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 Regu-
lations respecting the Territory or other Property belonging
†Gordon Rhea filed a brief for Thomas K. Moore as amicus curiae urg-
ing affirmance.
1 See Treaty of Paris, Art. II, 30 Stat. 1755 (1899).
2 64 Stat. 384. See generally A. Leibowitz, Defining Status: A Compre-
hensive Analysis of United States Territorial Relations 313, 323 (1989).

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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 local law.3 Petitioners were tried be-
fore 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 con-
victions 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.”

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Opinion of the Court
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 partici-
pate. A judge of the District Court of Guam was similarly
invited to participate in appeals heard while the Ninth Cir-
cuit sat in the Northern Mariana Islands.
The panel affirmed petitioners’ convictions without dis-
sent. 284 F. 3d 1086 (2002). Neither Nguyen nor Phan ob-
jected 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).
6 48 U. S. C. § 1821(b)(1).

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the Court of Appeals had “so far departed from the accepted
and usual course of judicial proceedings as to call for an exer-
cise 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 per-
mitting, 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) it-
self does not explicitly define the “district judges” who may
be assigned to the court of appeals. However, as other pro-
visions 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 estab-
lished as the members of those courts. § 132(b) (“Each dis-
trict 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-

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dicial districts, as follows [listing districts]”). Lastly, Chap-
ter 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 er-
roneous designation in these cases was not plainly impermis-
sible because Title 28 does not expressly forbid it or explic-
itly 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 lit-
eral reading of that sort is so capacious that it would also
justify the designation of “district judges” of any number of
7 The District Court for the Northern Mariana Islands is instead estab-
lished in Chapter 17 of Title 48 (“Territories and Insular Possessions”).
See § 1821.

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state courts “within” the Ninth Circuit.8 The statute cannot
plausibly be interpreted to authorize the improper panel as-
signment 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 ex-
pressing 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 Ter-
ritories 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 statu-
tory 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 Is-
lands 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-

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Opinion of the Court
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 undis-
turbed. Two of the grounds on which we are urged to affirm
concern petitioners’ failure to object to the panel’s composi-
tion 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 re-
view. 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 an-
other district. See also Ball v. United States, 140 U. S. 118,
tion. We find it unnecessary to discuss the constitutional questions be-
cause the statutory violation is clear.

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128–129 (1891) (assigned judge had de facto authority to re-
place 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 ques-
tioned 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 601.
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 propo-
sition 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 appeal.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 abso-
lutely 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.

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bine Co., 228 U. S. 645 (1913), even though the parties had
consented in the Circuit Court of Appeals to the participa-
tion 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 re-
spects, 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 ef-
fort 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 designa-
tion 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.11
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) permit-
ting 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

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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 re-
quirements set by Congress for the composition of the fed-
eral 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 ob-
serves, 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 viola-
tion of the designation statute in these cases would incor-
rectly 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 banc, 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 banc
court shall be ‘heard and determined’ by the active circuit judges”).

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Opinion of the Court
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, fed-
eral courts may not use their supervisory powers to circum-
vent 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 in-
volves a violation of a statutory provision that “embodies
a strong policy concerning the proper administration of judi-
cial 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 be-
cause participation by Senior Circuit Judge was not provided
by statute).
12 We agree with the Government’s submission that the improper compo-
sition of the court below was “an isolated, one-time mistake.” Brief for
United States 5. Countervailing concerns for gamesmanship, which ani-
mate 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 judg-
ments 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).

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It is also true that two judges of a three-judge panel con-
stitute a quorum legally able to transact business.14 More-
over, 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 con-
stituted 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); Wil-
liam Cramp & Sons Ship & Engine Building Co. v. Interna-
tional 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 controver-
sies by separate panels, each consisting of three judges, at least a majority

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83 Cite as: 539 U. S. 69 (2003)
Rehnquist, C. J., dissenting
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 dispo-
sition by a panel of two judges in the event that one mem-
ber 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 postjudgment absolution
for the participation of a judge who was not otherwise com-
petent 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 them-
selves as a panel. In light of that doubt, it is appropriate to
return these cases to the Ninth Circuit for fresh consider-
ation of petitioners’ appeals by a properly constituted panel
organized “comformably to the requirements of the stat-
ute.” 17 William Cramp & Sons, 228 U. S., at 651.
Accordingly, we vacate the judgments of the Court of Ap-
peals and remand these cases for further proceedings con-
sistent 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 be-
cause recused or disqualified . . . .”
17 Unlike 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 proceed-
ings to permit the decision below to stand, for no one other than a properly
constituted panel of Article III judges was empowered to exercise appel-
late jurisdiction in these cases.

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84 NGUYEN v. UNITED STATES
Rehnquist, C. J., dissenting
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 cor-
rectly. To that extent, I agree with the Court’s opinion.
But I do not agree that that error is a valid basis for vacat-
ing petitioners’ convictions, because even assuming that the
error affected petitioners’ substantial rights, it simply did
not seriously affect the fairness, integrity, or public reputa-
tion 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-

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85 Cite as: 539 U. S. 69 (2003)
Rehnquist, C. J., dissenting
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 prec-
edent 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 de-
scribing 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 af-
firmed. 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 sup-
ported by “ ‘overwhelming’ ” evidence, Cotton, supra, at 633,
634, and whose arguments on appeal were meritless, to con-
sume 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

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86 NGUYEN v. UNITED STATES
Rehnquist, C. J., dissenting
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 re-
tired 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 quo-
tation marks omitted)).
American-Foreign does not speak to the situation here be-
cause 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 cer-
tain evidence, and that the evidence was insufficient to support the convic-
tions—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.

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87 Cite as: 539 U. S. 69 (2003)
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motion for further rehearing en banc. 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 rehear-
ing en banc. 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 be-
fore 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 ap-
peals 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 dis-
tinguished from this litigation on the facts: They held only
that courts constituted “in violation of the express prohibi-
tions of [a] statute” lack the authority to act. Cramp, 228
U. S., at 650 (emphasis added). In contrast, the Ninth Cir-
cuit panel in this litigation did not run afoul of any “com-
prehensive and inflexible” statutory “prohibition.” Ibid.
Rather, the error must be deduced by negative implication,

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88 NGUYEN v. UNITED STATES
Rehnquist, C. J., dissenting
from a series of statutes that describe the proper use of dis-
trict 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 cre-
ate 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, integ-
rity, 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 Con-
gress 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 rep-
utation 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’ consti-
tutional claims. Petitioners argue that the designation of a
non-Article III judge to sit on the Ninth Circuit panel vio-
lated 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 statu-
tory one, is subject to plain-error review. “No procedural
principle is more familiar to this Court than that a constitu-
tional right may be forfeited in criminal as well as civil cases
by the failure to make timely assertion of the right before

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89 Cite as: 539 U. S. 69 (2003)
Rehnquist, C. J., dissenting
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 de-
fenses 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 III’s guarantee of an impartial and independent fed-
eral adjudication is subject to waiver, just as are other per-
sonal 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 proceed-
ings. See supra, at 85. I would therefore affirm the judg-
ment of the Court of Appeals.