U.S. v. France

• Decision Date: 13 September 1989
• Docket Number: No. 87-1282,87-1282
• Citation: 886 F.2d 223
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darlina K. FRANCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 223

886 F.2d 223

58 USLW 2192

UNITED STATES of America, Plaintiff-Appellee, v. Darlina K. FRANCE, Defendant-Appellant.

No. 87-1282.

United States Court of Appeals Ninth Circuit.

Argued Nov. 10, 1988.

Submitted July 7, 1989.

Decided Sept. 13, 1989.

Michael R. Levine, Federal Public Defender, Honolulu, Hawaii, for defendant-appellant.

Mark J. Bennett, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before NELSON, REINHARDT and WIGGINS, Circuit Judges.

REINHARDT, Circuit Judge:

Darlina France shot her husband after an argument. The event appears to have been merely the most violent moment in a relationship that had for some time been less than idyllic. Since the shooting occurred on the military base where the couple lived, it fell within the "special territorial jurisdiction" of the United States, see 18 U.S.C. Sec. 113, and made France liable for a federal offense. The Government charged her with assault with intent to murder, assault resulting in serious bodily injury, 18 U.S.C. Sec. 113(a), (f), and using a firearm in the commission of a felony, 18 U.S.C. Sec. 924(c). She was found guilty on two assault-related charges and on the weapons count. The conviction under Sec. 924(c) carried with it a five-year mandatory prison term, without the possibility of probation or parole.

Because of the circumstances surrounding the offense, events in the district court, and concerns about the constitutionality of Sec. 924(c) as applied to France, we ordered supplemental briefing in this case after argument. In the interim, the Supreme Court decided Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), holding that it is reversible error for federal magistrates to conduct jury selection in felony trials. A magistrate conducted the voir dire in France's trial. We conclude that France's case falls within the Gomez rule, and we reverse her conviction. We address the broader concerns which we have had about this case only in passing at the end of our discussion.

I

The Government and France offer starkly disparate pictures of the events which led up to the shooting. The Government emphasizes that France had apparently been involved in violent incidents with her two previous husbands and that she was angered when, the day before the shooting, her husband had knocked over their Christmas tree and, on the day of the shooting, had taken a beer from her. At trial, France described the situation somewhat differently. She recounted a history of physical abuse at the hands of a previous husband and described how, in the midst of an argument and just prior to the shooting, her current husband had attacked her.

The parties stress different facts concerning the actual shooting as well. The Government makes much of the fact that Mr. France was about 20 feet from his wife when he was shot, while France highlights the fact that her husband had turned around and was beginning to walk toward her once more when she fired. Whatever the case, France shot her husband in the shoulder with a gun he had bought for her some months before. She then went to her husband and told one of her two daughters to call an ambulance. At this point, France appears to have made several contradictory statements, repeating to law enforcement officers that she had not meant to shoot her husband, while also stating that "he [her husband] took my beer and that was the last straw."

At trial, Mr. France testified that he believed the shooting to have been accidental, given the gun's light trigger pull. He also testified that he and his wife had reconciled, that they loved each other and that he had asked that she not be prosecuted. The Government refused to accede to this request and chose to prosecute France under Sec. 924(c), which carries a mandatory five-year prison sentence without possibility of probation or parole, as well on the two felony assault counts. Jury selection was conducted by a federal magistrate, without objection from France. The jury convicted France of assault with a deadly weapon, a lesser included offense of assault with intent to commit murder under 18 U.S.C. Sec. 113(a), assault resulting in serious bodily injury under 18 U.S.C. Sec. 113(f), and using a firearm in relation to a crime of violence under 18 U.S.C. Sec. 924(c).

Then followed a most enlightening sentencing hearing. Judge Kelleher, expressing understandable hostility to his obligation to impose a five-year, no-probation, no-parole sentence on France, criticized the statute's relegation of the sentencing judge to an individual who gives only a "pro forma performance." He continued by stating that he "might as well go fishing on the day of the sentence and ask the clerk to pronounce sentence." He explicitly told France that he felt her case did not warrant a sentence of five years in prison without the possibility of parole. He then imposed the sentence required by Sec. 924(c), sentencing France to concurrent three-year terms of probation for her two convictions under Sec. 113.

France appealed. We ordered supplemental briefing on issues concerning the constitutionality of Sec. 924(c), and allowed the National Association of Criminal Defense Lawyers to file an amicus curiae brief on France's behalf. Meanwhile, the Supreme Court decided Gomez. We then granted the motion of France's attorney, a public defender, to file a supplemental brief concerning Gomez, and ordered the government to respond. As we conclude that the decision in Gomez requires us to reverse France's conviction, we do not reach the constitutional issues ably briefed by the parties.

II

A. Gomez

In Gomez, the Supreme Court examined whether a provision of the Federal Magistrates Act ("Act") which allows magistrates to perform "such additional duties as are not inconsistent with the Constitution and laws of the United States," 28 U.S.C. Sec. 636(b)(3), empowers magistrates to conduct jury selection in felony trials. 109 S.Ct. at 2239. The Court noted that Gomez and the other petitioners had initially objected to having a magistrate conduct voir dire and jury selection, but had never demonstrated or claimed that they were prejudiced by the magistrate's action. Id. After examining the structure and history of the Act, the Gomez court concluded that jury selection was not within the " 'range of duties' that Congress intended magistrates to perform." Id. at 2242 (quoting Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 554, 46 L.Ed.2d 483 (1976)).

The Court emphasized three factors in reaching its result. First, it noted that Congress had specifically authorized magistrates "to conduct trials of civil matters and of minor criminal cases" and determined that this "carefully defined grant of authority" "should be construed as an implicit withholding of the authority to preside at a felony trial." 109 S.Ct. at 2245. Second, it examined in detail the role that jury selection occupies in a criminal trial, observing that it represented a "critical stage of the criminal proceeding," with voir dire the "primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice." Id. at 2246 (citing Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 137-38, 36 L.Ed. 1011 (1892), and Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981)). Finally, the Court discussed the degree to which the individual who conducts voir dire must make sensitive evaluations of "not only spoken words but also [the] gestures and attitudes of all participants to ensure the jury's impartiality," and expressed "serious doubts that a district judge could review the[ese] function[s] meaningfully." 109 S.Ct. at 2247. Based on these observations, the court concluded that Congress had not given magistrates the power to conduct jury selection in a felony trial.

The Court, in the final portion of its opinion, stated clearly that "a defendant's right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside," id. at 2248, placed the error in Gomez in the category of errors that " ' "can never be treated as harmless." ' " Id. (quoting Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2056, 95 L.Ed.2d 622 (1987) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967))). It thus ended its opinion by ruling that Gomez error was not susceptible to harmless error analysis. 109 S.Ct. at 2248.

Having described the rationale and holding of Gomez, we turn now to the task of applying it to France's case.

B. Application of Gomez

When we ordered the government to respond to the Gomez brief filed by France's public defender, we specifically mandated that the government address issues of retroactivity and waiver. ¹ We have reviewed the government's arguments and conclude (1) that Gomez must be applied (at least) to all convictions not yet final, and (2) that the fact that France did not object to the magistrate conducting jury selection does not serve to waive her right to a reversal under Gomez.

(1)

The Supreme Court has made clear that "as a rule, judicial decisions apply 'retroactively.' " Solem v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984) ("Stumes ") (quoting and citing Robinson v. Neil, 409 U.S. 505, 507-08, 93 S.Ct. 876, 877, 35 L.Ed.2d 29 (1973)). Retroactivity is "most appropriate" in those cases where a new rule "is designed to enhance the accuracy of criminal trial." Stumes, 465 U.S. at 643, 104 S.Ct. at 1342 (new constitutional rule); see also Williams v. United States, 401 U.S. 646, 653 & n. 6, 91 S.Ct. 1148, 1152 & n. 6, 28 L.Ed.2d 388 (1971) (plurality opinion). Although the Court has usually discussed retroactivity in the context of new constitutional rules, we believe that the analysis of Stumes and Williams...