Nguyen v. United States, 539 U.S. 69, 18 (2003)

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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 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.

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