Nguyen v. United States, 539 U.S. 69, 12 (2003)

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80

NGUYEN v. UNITED STATES

Opinion of the Court

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 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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