Structural Error Limited to Constitutional Violations – A Commentary on United States v. Johnson (2d Cir. 2025)

1  Introduction

On 14 July 2025 the United States Court of Appeals for the Second Circuit, sitting in regular (non-en banc) session, denied rehearing en banc in United States v. Johnson, No. 22-1289. Although procedurally the order merely refused further review, the accompanying opinions firmly establish a precedential rule: a trial error qualifies as “structural” in the Second Circuit only if it implicates a constitutional right. The case arose after Rickey Johnson was convicted by an eleven-person jury, a direct violation of Federal Rule of Criminal Procedure 23(b), which mandates twelve jurors unless the parties consent otherwise or a juror is excused after deliberations have begun. The panel had already affirmed Johnson’s convictions in 2024, holding the error harmless. The denial of en banc rehearing left that panel opinion—and its reasoning—intact, but sparked an unusually detailed clash between concurring and dissenting judges over the nature of structural error.

2  Summary of the Judgment

The court split along three axes:

• Panel Majority (2024) & Concurring Judges (2025): Held that (i) there is no constitutional right to a twelve-member jury in federal court under existing Supreme Court precedent (Williams v. Florida), (ii) only errors that violate constitutional rights can be “structural,” and (iii) therefore a violation of Rule 23(b) is subject to harmless-error review. The panel found harmlessness because the evidence was “overwhelming.”
• Concurrence in Denial (Judge Lohier & others): Agreed rehearing was unnecessary but insisted that the panel’s constitutional-nexus discussion is dictum, leaving open whether a non-constitutional error might ever be structural.
• Dissent from Denial (Judge Merriam & others) + Panel Dissent (Judge Chin): Argued that reducing the jury to eleven without consent is itself a structural error—regardless of constitutional pedigree—because it alters the trial’s framework and defies harmless-error analysis.

Because a majority of active judges did not vote for rehearing, the panel opinion remains the law of the circuit. Judge Menashi, joined by Chief Judge Livingston and others, expressly characterized the constitutional requirement as a holding, not dicta. The upshot is a precedential rule in the Second Circuit that structural error requires constitutional error, while the dissenters maintain the issue is unsettled.

3  Analysis

3.1  Precedents Cited

• Williams v. Florida, 399 U.S. 78 (1970) – Held the Sixth Amendment does not require twelve jurors in state court; relied upon by the panel to deny constitutional status to the twelve-person jury requirement.
• Stratton, 779 F.2d 820 (2d Cir. 1985) – Found that reducing the jury to eleven did not affect “substantial rights” for ex post facto purposes; used to support harmless-error treatment.
• Neder v. United States, 527 U.S. 1 (1999) & Weaver v. Massachusetts, 582 U.S. 286 (2017) – Supreme Court descriptions of “a limited class of fundamental constitutional errors” were read by the panel as confirmation that structural errors are constitutional in nature.
• Delaware v. Van Arsdall, 475 U.S. 673 (1986) & Sullivan v. Louisiana, 508 U.S. 275 (1993) – Cited by dissenters to show that some errors defy harmless-error analysis because their consequences are unquantifiable.
• Young v. U.S. ex rel. Vuitton, 481 U.S. 787 (1987) – Plurality treated conflict-of-interest in prosecution as structural even though not overtly constitutional; offered by dissent as precedent that structural error can be non-constitutional.

3.2  Court’s Legal Reasoning

1. No Constitutional Right to Twelve Jurors – Because Williams said “twelve is a historical accident,” the panel concluded that Rule 23(b) codifies a procedural rule, not a constitutional guarantee.
2. Definition of Structural Error – Relying on Neder and Weaver, the panel framed structural errors as those that (a) are constitutional, and (b) so undermine the trial framework that harmless-error review is impossible. By tying (a) and (b) together, the panel generated the new rule.
3. Harmless-Error Analysis Applied – Given no constitutional right was infringed, Federal Rule of Criminal Procedure 52(a) commands that errors not affecting “substantial rights” be disregarded. The evidence against Johnson was deemed overwhelming; thus, the violation was harmless.
4. Labeled Dicta vs. Holding – Judge Lohier argued the constitutional-nexus discussion was unnecessary (dictum) because the panel could have rested solely on lack of prejudice. Judge Menashi countered that the nexus was “central to the reasoning” and therefore binding. The disagreement creates interpretive tension but, practically, lower courts must follow the rule until overruled en banc or by the Supreme Court.

3.3  Impact of the Decision

• Second Circuit Practice – District judges now have clear authority to apply harmless-error review to non-constitutional procedural defects, including Rule 23(b) violations, unless Supreme Court law changes.
• Jury-Trial Dynamics – The decision may subtly incentivize excusing jurors for convenience before deliberations, confident that appellate reversal requires a specific showing of prejudice.
• Inter-Circuit Tension – The ruling conflicts with Fourth, Sixth, Ninth, D.C., and other Circuits that regard premature juror dismissal as automatically reversible. A circuit split on the scope of structural error has deepened, enhancing the likelihood of Supreme Court review.
• Broader Criminal-Procedure Doctrine – By tethering structural error to constitutional provisions, the court curtails future arguments that violations of the Federal Rules or statutes (e.g., improper sequestration, defective voir dire, Rule 11 plea colloquy defects) are per se reversible.

4  Complex Concepts Simplified

• Structural Error – Think of it as a foundational crack in the trial’s “building.” If the foundation is bad, one cannot simply patch the wall; the whole building (verdict) must be torn down and rebuilt (new trial). Typical examples: total denial of counsel, biased judge, racial exclusion of jurors.
• Harmless-Error Review – The appellate court asks: “Even though the judge made a mistake, are we sure the verdict would have been the same?” If yes, the conviction stands.
• Rule 23(b) vs. Sixth Amendment – Rule 23(b) is a court-made procedural rule requiring twelve jurors unless the parties agree otherwise. The Sixth Amendment guarantees a jury trial but, under Williams, does not require the jury to have twelve members in state court proceedings.
• En banc Review – A rehearing by all active judges of a circuit. It is typically reserved for resolving intra-circuit conflict or questions of exceptional importance. Denial means the panel decision remains authoritative.
• Dictum – A statement in a judicial opinion not strictly necessary to resolve the case. Dicta can be persuasive but are not binding. The fight in Johnson is over whether the constitutional-error requirement is dictum or holding.

5  Conclusion

United States v. Johnson carves out a new and consequential rule in Second Circuit jurisprudence: only constitutional violations can be classified as structural errors that automatically require reversal. While framed within the narrow context of an eleven-person jury, the principle reaches far beyond Rule 23(b), signaling a more restrictive approach to automatic reversals. The sharp split among the judges illustrates vigorous debate over the proper role of harmless-error analysis and the continuing vitality of the “structural error” doctrine. Because other circuits treat similar Rule 23(b) violations as structural, the stage is set for eventual Supreme Court intervention. Until then, practitioners in the Second Circuit must be prepared to demonstrate concrete prejudice when challenging procedural irregularities that lack explicit constitutional pedigree.