553 U.S. 242 (2008), 06-11612, Gonzalez v. United States

Docket Nº:06-11612.
Citation:553 U.S. 242, 128 S.Ct. 1765
Opinion Judge:KENNEDY, JUSTICE.
Party Name:Homero GONZALEZ, Petitioner, v. UNITED STATES.
Attorney:Brent E. Newton argued the cause for petitioner. With him on the briefs were Marjorie A. Meyers, H. Michael Sokolow, and Timothy Crooks. Lisa S. Blatt argued the cause for the United States. With her on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor ...
Judge Panel:KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALTTO, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 254. THOMAS, J., filed a dissenting opinion, post, p. 258. Justice SCALIA, concurring in the j...
Case Date:May 12, 2008
Court:United States Supreme Court
 
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Page 242

553 U.S. 242 (2008)

128 S.Ct. 1765

Homero GONZALEZ, Petitioner,

v.

UNITED STATES.

No. 06-11612.

United States Supreme Court

May 12, 2008

Argued January 8, 2008

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Syllabus

If the parties consent, a federal magistrate judge may preside over the voir dire and jury selection in a felony criminal trial. Peretz v. United States, 501 U.S. 923, 933, 111 S.Ct. 2661, 115 L.Ed.2d 808. Before petitioner's federal trial on felony drug charges, his counsel consented to the Magistrate Judge's presiding over jury selection. Petitioner was not asked for his own consent. After the Magistrate Judge supervised voir dire without objection, a District Judge presided at trial, and the jury returned a guilty verdict on all counts. Petitioner contended for the first time on appeal that it was error not to obtain his own consent to the Magistrate Judge's voir dire role. The Fifth Circuit affirmed the convictions, concluding, inter alia, that the right to have a district judge preside over voir dire could be waived by counsel.

Held:

Express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the Federal Magistrates Act, 28 U.S.C. § 636(b)(3), which states: "A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." Under [128 S.Ct. 1766] Gomez v. United States, 490 U.S. 858, 870, 875-876, 109 S.Ct. 2237, 104 L.Ed.2d 923, and Peretz, supra, at 933, 935-936, 111 S.Ct. 2661, such "additional duties" include presiding at voir dire if the parties consent, but not if there is an objection. Generally, where there is a full trial, there are various points at which rights either can be asserted or waived. This Court has indicated that some of these rights require the defendant's own consent to waive. See, e.g., New York v. Hill, 528 U.S. 110, 114-115, 120 S.Ct. 659, 145 L.Ed.2d 560. The Court held in Hill, however, that an attorney, acting without indication of particular consent from his client, could waive his client's statutory right to a speedy trial because "[scheduling matters are plainly among those for which agreement by counsel generally controls." Ibid. Similar to the scheduling matter in Hill, acceptance of a magistrate judge at the jury selection phase is a tactical decision well suited for the attorney's own decision. The presiding judge has significant discretion over jury selection both as to substance-the questions asked-and tone-formal or informal-and the judge's approach may be relevant in light of the approach of the attorney, who may decide whether to accept a magistrate judge based in part on these factors. As with other tactical decisions, requiring

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personal, on-the-record approval from the client could necessitate a lengthy explanation that the client might not understand and that might distract from more pressing matters as the attorney seeks to prepare the best defense. Petitioner argues unconvincingly that the decision to have a magistrate judge for voir dire is a fundamental choice, cf. Hill, supra, at 114, 120 S.Ct. 659, or, at least, raises a question of constitutional significance so that the Act should be interpreted to require explicit consent. Serious concerns about the Act's constitutionality are not present here, and petitioner concedes that magistrate judges are capable of competent and impartial performance when presiding over jury selection. Gomez, supra, at 876, 109 S.Ct. 2237, distinguished. Pp. 245-253.

483 F.3d 390, affirmed.

Brent E. Newton argued the cause for petitioner. With him on the briefs were Marjorie A. Meyers, H. Michael Sokolow, and Timothy Crooks.

Lisa S. Blatt argued the cause for the United States. With her on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Deborah Watson [*]

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALTTO, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 254. THOMAS, J., filed a dissenting opinion, post, p. 258.

OPINION

KENNEDY, JUSTICE.

If the parties consent, federal magistrate judges may preside over the voir dire and selection of prospective jurors in a felony criminal trial. Peretz v. United States, 501 U.S. 923, 933, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). [128 S.Ct. 1767] This case presents the question whether it suffices for counsel alone to consent to the magistrate judge's role in presiding over voir dire and jury selection or whether the defendant must give his or her own consent.

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Homero Gonzalez was charged in the United States District Court for the Southern District of Texas on five felony drug offense counts. He is the petitioner here. At the outset of jury selection, the parties appeared before a Magistrate Judge. The Magistrate Judge asked the attorneys to approach the bench. After they complied, the Magistrate Judge said: "I need to ask the parties at this time if they are going to consent to having the United States Magistrate Judge proceed in assisting in the jury selection of this case." App. 16. Petitioner's counsel responded: "Yes, your Honor, we are." Ibid. The Magistrate Judge asked if petitioner was present and if he needed an interpreter. Petitioner's counsel answered yes to both questions. Petitioner was not asked if he consented to the Magistrate Judge's presiding. The record does not permit us to infer this or even to infer that petitioner knew there was a right to be waived. The Magistrate Judge then supervised voir dire and jury selection. Petitioner made no objections to the Magistrate Judge's rulings or her conduct of the proceedings. A District Judge presided at the ensuing jury trial, and the jury returned a verdict of guilty on all counts.

Petitioner appealed, contending, for the first time, that it was error not to obtain his own consent to the Magistrate Judge's presiding at voir dire. The United States Court of Appeals for the Fifth Circuit affirmed the convictions. The court concluded petitioner could not show the error was plain and, furthermore, there was no error at all. It held the right to have an Article III judge preside over voir dire could be waived by petitioner's counsel. 483 F.3d 390, 394 (2007). The Courts of Appeals differ on this issue. Compare ibid., with United States v. Maragh, 174 F.3d 1202, 1206 (CA111999) (requiring personal and explicit consent from the defendant); see also United States v. Desir, 273 F.3d 39, 44 (C.A.1 2001) (magistrate judge may conduct jury selection unless the defendant or his attorney registers an objection).

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We granted certiorari. 551 U.S. 1192, 128 S.Ct. 32, 168 L.Ed.2d 809 (2007). We agree that there was no error and hold that petitioner's counsel had full authority to consent to the Magistrate Judge's role.

The Federal Magistrates Act, 28 U.S.C. §631 et seq. (2000 ed. and Supp. V), permits district courts to assign designated functions to magistrate judges. For example, magistrate judges are authorized to: issue orders concerning release or detention of persons pending trial; take acknowledgments, affidavits, and depositions; and enter sentences for petty offenses. §636(a) (2000 ed. and Supp. V). They also may hear and determine, when designated to do so, any pretrial matter pending before the district court, with the exception of certain specified motions. Magistrate judges may also conduct hearings and propose recommendations for those motions, applications for post-trial criminal relief, and conditions of confinement petitions. §636(b)(1) (2000 ed.). If the parties consent, they may conduct misdemeanor criminal trials and civil trials. §§636(a)(3) and (c)(1).

The statutory provision of direct applicability in the present case is §636(b)(3). It states: "A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." The general, nonspecific terms of this paragraph, preceded by text that sets out permissible duties in [128 S.Ct. 1768] more precise terms, constitute a residual or general category that must not be interpreted in terms so expansive that the paragraph overshadows all that goes before.

In two earlier cases the Court considered the question of magistrate judges presiding over the jury selection process in felony trials. In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the District Judge delegated the task of selecting a jury to a Federal Magistrate Judge. Defense counsel objected, but the objection was overruled. The Court noted that "[a] critical limitation on [the magistrate judge's] expanded jurisdiction is consent," id., at 870, 109 S.Ct. 2237, and held that presiding, over an objection, at the preliminary selection phase

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of a jury trial in felony cases is not among the additional duties that a magistrate judge may assume, id., at 875-876, 109 S.Ct. 2237.

In Peretz v. United States, supra, the Court again considered whether a magistrate judge could preside over voir dire in a felony case. In that instance, however, defendant's counsel, upon being asked by the District Court at a pretrial conference (with the defendant present) if there was any objection to having jury selection before a magistrate judge, responded, " I would love the opportunity.'" Id., at 925, 111 S.Ct. 2661. Defense counsel later advised the Magistrate Judge that the defendant consented to the process. The Court clarified that in a felony trial neither the Act nor Article III forbids supervision of voir dire by a magistrate judge if both...

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