dissenting in part.
I concur in the majority opinion in almost all respects, including the holdings that 18 U.S.C. § 245(b)(2)(B) is constitutional and that the evidence was sufficient to meet the statutory requirements. The sole exception to my concurrence is my disagreement with the majority’s decision to vacate the judgment of conviction on the grounds that the District Court failed to excuse a biased juror in order to maintain the jury’s racial and religious diversity. Although the highly unusual and improper jury selection raises troubling issues, I do not believe that vacating the conviction provides a sensible remedy in this case. Instead, I favor the government’s recommendation that we affirm this conviction, while noting our willingness to consider the possibility of vacatur in future cases, should they arise.
The majority opinion vacates the conviction on the related grounds (1) that since Juror 108 was biased, the District Court should have granted the defendants’ for-cause challenge against him and (2) that the defendants’ subsequent agreement to seat Juror 108 did not waive their earlier objection. The defendants did not waive this objection, the majority holds, because jury impartiality is unwaivable once a for-cause challenge has been made and, even if it were waivable, the defendants’ acceptance of an improper jury selection plan would not constitute a valid waiver.
*218I agree with the majority that the District Court should have granted the for-cause challenge. I also share the majority’s view that the District Court’s race-based jury decisions were improper and antithetical to our constitutional system of adjudication. I respectfully dissent, however, because the majority provides a remedy that compensates no injured party and benefits participants in the constitutionally suspect behavior. The defendants here did not just acquiesce in a jury that included Juror 108. Instead, they actively agreed to — and we must infer, decidedly preferred — the jury that ultimately judged them over the jury that otherwise would have determined their guilt or innocence. To my mind, this absolutely exceptional fact renders the remedy of a new trial unsuitable to the error which confronts us. Accordingly, I would hold that the defendants’ behavior waived any challenge to the jury selection.
I. The Defendants Chose a Jury With Juror 108
Only an appreciation of the circuitous route which led to the empaneling of Juror 108 can lead to an understanding of why the defendants’ conviction should be left undisturbed. The defendants initially challenged for cause Juror 108, a Jewish man, based on his responses to individual voir dire, which indicated his sensitivity to Jewish concerns and his belief that nothing “definitive” came out of Nelson’s state court trial. The District Court denied this challenge, and the defendants then requested that the District Court conduct further questioning of the juror. After some hesitation, the District Court ultimately agreed to conduct additional questioning of Juror 108 to ascertain the juror’s ability to be impartial. The District Court told the juror “to look into your heart and ask yourself whether you feel personal emotional internal pressures that would make it such that you couldn’t give the defendant here a fair trial.” The juror responded, “I don’t know. I honestly don’t know.”
As the majority opinion observes, our case law would normally require that this juror be excused. This is so because the juror, at least explicitly, never purged himself of the bias which he demonstrated during voir dire. But subsequent events leave little doubt that this was no normal case. Just prior to the start of trial, Juror number 108 was the fourth alternate and, depending on how things unfolded, may never have served as anything more than an alternate juror in the normal course of events. But Juror 108 became a full jury member not as a result of attrition as other members were excused, but because of an agreement among the prosecution, the defense, and the Judge.
Prior to swearing the jury, the District Court suggested that they substitute the second and fourth (Juror 108) alternate jurors for two regular jurors (one of whom was excused by the court for illness).1 Both the prosecution and defense agreed to the plan. Defense counsel conveyed on the record in open court that they had discussed the plan with their clients and had obtained their consent to this substitution:
The Court: Mr. Paster, do you want to put it on the record what you have discussed.
Mr. Paster: Yes, we have discussed matters that we have agreed upon this *219morning with our client and he consents to proceeding.
Ms. Caproni: Could you state specifically on the record what has been agreed to?
Mr. Paster: Sure if I put on my glasses, that juror number 37 previously sitting in seat seven will become alternate number six, that juror 61 has been excused by the Court for illness, that juror number 94 has become juror number 11, that juror number 108 has, therefore, become juror number 12, that the order of the alternates shall be juror 93, 107, 11, 117, 122 and then juror number, 37 being the last alternate flat [sic].
The Court: Is that satisfactory. Mr. Price, is that satisfactory to you?
The Defendant Price: Yeah.
Mr. Headley: In addition to, Mr. Nelson, has overheard everything that Mr. Paster has said, in addition to that I informed Mr. Nelson that it would result in a jury where there would be three African Americans on the jury and two Jews on the jury, and you know Mr. Nelson has consented to that.
The Court: Is that acceptable, Mr. Nelson?
The Defendant Nelson: Yes, Your Hon- or.
The Court: I think we are ready to begin.
In other words, the Judge, the prosecution and, critically, the defendants preferred to proceed to trial with this jury — notwithstanding the fact that Juror 108 was a member. But for this agreement, Juror 108 would have likely remained an alternate juror.
Waiver is “ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). “When there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy.” Schick v. United States, 195 U.S. 65, 72, 24 S.Ct. 826, 49 L.Ed. 99 (1904); see United States v. Pachay, 711 F.2d 488, 495 (2d Cir.1983) (Meskill, J., concurring in the result) (“Constitutional rights are guarantees, privileges secured to the individual, not directives of the sovereign mandating what is in the best interests of that individual. As such, those rights can usually be waived at the instance of the defendant.”). The inquiry of whether there has been an intelligent waiver of a particular right “must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Zerbst, 304 U.S. at 464.
Here, the facts of this case compel the conclusion that the defendants waived their opportunity to challenge the District Court’s rejection of their cause challenge to Juror 108. I reach this conclusion not because the defendants failed to renew their challenge for cause after the District Court acceded to their request to conduct additional questioning of Juror 108, nor because they declined to exercise a peremptory challenge to strike Juror 108— although they in fact chose not to do both of these things. I would instead find waiver on account of the defendants’ consent to and participation in the plan that led to the substitution of Juror 108 onto the main jury.
In this regard, I agree with Justice Sca-lia, concurring in United States v. Martinez-Salazar, that “I would not find it easy to overturn a conviction where, to take an extreme example, a defendant had plenty of peremptories left but chose instead to allow to be placed upon the jury a person to whom he had registered an objection for cause, and whose presence he *220believed would nullify any conviction.” 528 U.S. 304, 318-19, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). Our case tops Justice Scalia’s extreme example. Here, rather than merely failing to act to exclude the questionable juror, the defense — counsel and defendant — actually consented to his serving on the main jury. To order a new trial under the facts presented in this case — which indicate a strategic decision on the part of the defendants to adopt the District Court’s allegedly improper procedure with respect to jury selection — would, in effect, provide the defendants with yet another opportunity to challenge the composition of a jury to which they waived objection.
In reaching this conclusion, I have considered the Supreme Court’s warning against “ ‘sandbagging’ on the part of defense lawyers” who may decline to object to a potentially unconstitutional trial procedure in order to manufacture reversible error. See Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). “[T]he underlying policy against permitting defense attorneys to create the errors of which they later complain remains the same regardless of whether the attorneys realized and appreciated the constitutional implications of the position they advocated.” United States v. Joshi 896 F.2d 1303, 1307 n. 3 (11th Cir.), cert. denied sub nom. Panchal v. United States, 498 U.S. 986, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990). To find otherwise under the circumstances of this case would permit a defendant to manipulate the system and allow him to “test his fortunes with the first jury,” and assure him of a “second round in the event of a conviction.” McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir.1996) (defendant’s failure to object to the discriminatory use of peremptory challenges prior to the conclusion of jury selection constituted a waiver of that objection).
The errors here are not properly categorized as structural, and therefore unwaiva-ble, because they did not “so fundamentally undermine the fairness or the validity of the trial that they require voiding its result regardless of identifiable prejudice” and therefore, could not “fall within Fulminante^ classification of structural errors.” Yarborough v. Keane, 101 F.3d 894, 897-98 (2d Cir.1996) (citing Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), cert. denied, 520 U.S. 1217, 117 S.Ct. 1706, 137 L.Ed.2d 831 (1997)). When one considers the overall circumstances and conditions of this trial, we can have overwhelming confidence in the fairness and validity of its verdict. Even if Juror 108 showed potential bias during voir dire, the presence of this one possibly biased juror did not fundamentally undermine the validity of the criminal trial. Our interest in fairness and accuracy was secured by the other protections afforded these defendants. This includes the presence of eleven other jury members, the strong guidance of the Judge’s jury instructions and, above all, the defendants’ own ability to refuse to endorse and ratify the agreement by which Juror 108 took a seat on the jury. On the exceptional facts of this case, I cannot conclude that the presence of Juror 108 on the jury fundamentally undermined the validity and fairness of the defendants’ trial.
While the final jury may well have been chosen with race and religion in mind, it was a jury which all parties to the proceeding regarded as a better adjudicator of guilt and innocence than the alternative jury to be chosen by the strict dictates of Fed.R.Crim.P. 24(c). I believe that the defendants’ participation in a plan to empanel Juror 108, where such participation was undoubtedly active, intelligent, and voluntary, should act as a waiver of any objection the defendants might have had to *221the impartiality of that juror based on voir dire.2
II. The Defendants’ Waiver Was Valid.
Nor do I accept the majority’s technical argument that the defendants’ waiver was ineffective. The majority argues that since the waiver was premised on an improper exchange (both parties chose jurors on the basis of race and religion), we should not recognize the waiver. To my mind, we should deem the waiver ineffective only if our decision would further the public policy prohibiting the “improper exchange.” Although I agree that this highly unusual arrangement should not have been pursued by the defense or the government, let alone endorsed and encouraged by the District Court, I do not believe that vacatur provides a productive or sensible remedy in this case.
The remedy of ordering a new trial in response to race-based jury selection has found its most famous articulation in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). There, the state prosecutor used peremptory challenges to strike four black persons — the only black persons — on the venire. When the defendant objected, the trial judge ruled that the parties could use their challenges to “strike anybody they want to.” Id. at 83. When the Supreme Court remanded for possible vacatur and new trial, it offered three reasons why that misbehavior might require vacatur. First, the discriminatory conduct infringes a defendant’s right to equal protection by denying him a jury of his peers. See id. at 86-87. Second, the discriminatory action injures the excluded juror by denying the person participation in jury service on account of his or her race. See id. at 87. Finally, the conduct harms the entire community by undermining public confidence in the fairness of the justice system. See id. at 87-88.
In light of the articulated injuries caused by the discriminatory jury selection, the Batson remand was a sensible outcome. The defendant, having been denied his equal protection, would be given his right to trial by jury chosen without racial prejudice. Moreover, the deterrent effect of such a remedy would serve to prevent the exclusion of future jurors based on race and, by eliminating this practice, restore and safeguard the public’s confidence in the criminal justice system.
It seems to me that we should deem the waiver ineffective, and as a corollary require retrial, only when such a decision furthers one of these interests. But none of these reasons supports giving retroactive effect (i.e., voiding the defendants’ waiver) to the rule announced by the majority. In this case, unlike in Batson, the defendants themselves participated in and agreed to the plan that empaneled Juror 108. This forecloses any claim that they suffered injury, or at the very least estops them from asserting this claim. See Minetos v. City Univ. of N.Y., 925 F.Supp. 177, 185 (S.D.N.Y.1996) (holding that “equity does not favor granting [the plaintiff] a new trial” on account of defendants’ Bat-son violation where the plaintiff herself *222violated Batson.) The Constitution does not require that we reward defendants for constitutional violations in which they themselves participated. See, e.g., United States v. Boyd, 86 F.3d 719, 724 (7th Cir.1996) (“Important social interests allow a judge to block the defense from taking certain action.... It does not follow that by violating these important social interests a defendant can help himself to a new trial.”), cert. denied, 520 U.S. 1231, 117 S.Ct. 1825, 137 L.Ed.2d 1032 (1997). We do not, for example, permit a defendant to challenge evidence, the introduction of which he himself requested for strategic reasons, see United States v. Moskowitz, 215 F.3d 265, 270 (2nd Cir.2000), cert. denied, 531 U.S. 1014, 121 S.Ct. 571, 148 L.Ed.2d 489 (2000), or challenge the admissibility of hearsay statements of a non-appearing witness where the defendant himself acted to prevent the witness from appearing, see U.S. v. Dhinsa, 243 F.3d 635, 651-52 (2nd Cir.2001), cert. denied, —U.S.-, 122 S.Ct. 219, 151 L.Ed.2d 156 (2001). In my view, we are dealing with a similar situation here, and these defendants do not deserve a second trial given their own conduct.
We are then left with the injuries to the excluded juror and to the community. For these purposes, a prospective rule against such behavior suffices, with no additional benefit to ordering retrial in this case. The excluded juror will not participate in a new trial. And the injury to the community’s confidence in the system — if this practice is indeed widespread — can be averted by a prospective rule prohibiting this type of race and religion based jury selection.3
Therefore, I see no reason in law or public policy to view the defendants’ waiver as ineffective. Although we should discourage this type of behavior in the future, ensuring this systemic interest does not require deeming these defendants’ waiver ineffective. Neither judicial precedent nor public policy requires that the defendants receive compensation for an “injury” to which they not only acquiesced, but actually favored and desired. Insofar as the majority raises systemic concerns and wishes to ensure that district courts refrain from such jury practices in the future, a prospective warning would suffice.4 *223Deeming the defendants’ waiver ineffective does not enhance the deterrent value of our prohibition on race and religion based jury selection over a prospective rule to that effect.
As I see it, requiring a retrial needlessly prolongs the pain of the community and families who were victimized by the defendants’ crimes. A retrial is neither deserved by the defendants nor required to safeguard the validity and fairness of our system of justice. The adoption of a prospective rule would not, as the majority suggests, operate to condone the District Court’s choices. It would instead recognize that we should match our remedies to the injuries we seek to ameliorate. For all of the foregoing reasons, I respectfully dissent and would affirm the defendants’ convictions.
. Pursuant to Fed.R.Crim.P. 24(c), each member of the venire is assigned a number which determines the order of prospective jurors and ultimately, jury members. Thus, for example, prospective juror 50 would deliberate as a member of the final jury only when all but 11 of the prospective jurors numbered 1 to 49 had been excused.
. In part, I believe that the agreement between defense, prosecution and Judge to empanel a juror indicates a shared consensus that the resulting jury will fairly adjudicate the case. Where the parties decide that they prefer a jury containing the allegedly biased juror to a different jury without him, I believe that an appellate court can do little more to guarantee impartiality by reviewing the cold transcript of the juror’s voir dire. The agreement of the parties who make a conscious, knowing and intelligent decision serves as an adequate guarantee of impartiality, enabling us to construe the defendants’ behavior as a waiver of their earlier objection.
. The majority disputes the deterrent value of a prospective rule, worrying that if a future panel were to find my argument equally applicable, the injuries would be "repeatable in perpetuity ." As a conceptual matter, my argument would not apply in a future case. This is because a future panel would have to address our representation here that this Circuit will reverse and remand any conviction obtained by a jury that was selected with race or religion in mind. My argument, which focuses on the deterrent value of court rulings, necessarily takes notice of and gives effect to such explicit warnings. In practical terms, I think the majority's concern is even more unwarranted. I am certain that the government (or a district court) will not select a jury in flagrant disregard of this Court's explicit warnings in the odd hope that our Court might alter its explicitly articulated view in so fundamental a matter. Warnings can be credible, even where a penalty is not assessed at the first possible moment.
. It is also worth noting that a prospective rule is appropriate where, as here, the defendants failed to properly object to the allegedly erroneous decision by the District Court. Although the defendants did initially make a for-cause objection to Juror 108, they subsequently waived that objection when they gave their intelligent and knowing agreement to the plan to seat that juror. As I believe that this waiver is equivalent to a failure to object, we therefore may correct the District Court’s decision only if it is (1) error, (2) that is plain, (3) that affects substantial rights and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
I think we may establish a prospective rule because the defendants here satisfy the first, *223but not the last, two prongs of the test. I am inclined to agree that the District Court erred, and that, given the ruling announced here, that error is plain. Cf. id. at 467-68. Therefore, we may conclude that the law in this Circuit prohibits the use of race and religion as criteria for the inclusion of a juror in the future. I do not, however, think that the error affected substantial rights in this trial, as the inclusion of Juror 108 was not "structural error” for the reasons discussed above. See id. at 468-69. Nor do I believe that, when examined in the context of this trial, the decision seriously affected the fairness, integrity or public reputation of the judicial proceedings. See id. at 469-70. As our discussion of the defendants' challenge to the sufficiency of the evidence indicates, the evidence of guilt was compelling and the trial, though not error-free, can give us confidence that the evidence was fundamentally weighed and evaluated as our laws and Constitution require. We can be confident that these two defendants were convicted based on the evidence and pursuant to fair and just proceedings.
Since the defendants did not properly preserve their objection to the jury selection, we may not correct the errors made by the District Court.