Campbell v. U.S. Dist. Court for Northern Dist. of California

Decision Date19 April 1974
Docket NumberNo. 73-3022,73-3022
Citation501 F.2d 196
CourtU.S. Court of Appeals — Ninth Circuit

James F. Hewitt (argued), Federal Defender, William A. Brockett, Jr., Asst. Federal Public Defender, San Francisco, Cal., for petitioner.

James L. Browning, Jr., U.S. Atty., James A. Bruen (argued), Lawrence Callaghan, Asst. U.S. Attys., San Francisco, Cal., for real party in interest, United States.


On Petition for a Writ of Mandamus

Before DUNIWAY and CARTER, Circuit Judges, and SOLOMON, * District Judge.

JAMES M. CARTER, Circuit Judge:

This case presents a problem of great importance in the administration of justice in the area of criminal law. The question presented by way of a petition for mandamus is whether an order of reference in a criminal case to a magistrate to hold an evidentiary hearing on a motion to suppress, and to make findings of fact and recommend conclusions of law, is valid.

Petitioner raises two questions:

(1) Is the statute, 28 U.S.C. 636, 1 under which the reference was made, constitutional as applied?

(2) Is the order of reference within the scope of the statute?

At the argument petitioner contended that the district court abused its discretion in making the order of reference. The contention was not presented by the petition for the writ, nor briefed on this appeal. It has no merit.

We deny the petition for a writ of mandamus.

I Procedural Background

A criminal case, United States v. Bruce A. Campbell, was pending before the United States District Court for the Northern District of California. Campbell, the petitioner herein, filed a motion to suppress evidence. Pursuant to Local Rules 503 and 505 2 of the Northern District of California, the district court, on October 12, 1973, referred the motion to suppress to the United States Magistrate for recommended findings of fact and conclusions of law.

At the time the court proposed to refer the motion to the magistrate, both the petitioner and the government opposed the suggestion. The petitioner listed his objections as follows:

(1) Difficulty in getting a proper transcript from the magistrate because the procedure in effect provides for the use of a tape recording device rather than a court reporter;

(2) The statute, 28 U.S.C. 636, does not authorize a magistrate to exercise the power to hear motions to suppress and Congress did not intended for a magistrate to sit in an Article III proceeding.

(3) The outcome of the motion to suppress will dispose of the case.

The government then joined in these objections.

The district judge stated as his 'philosophy' in reviewing the proceedings of the magistrate that he accepted his rulings on facts because the magistrate 'is a judicial officer' and a defendant is 'entitled to one hearing on the question of fact on the motion to suppress.'

The judge further stated that he did not hear appeals from decisions of magistrates on questions of law and mixed questions of law and fact, and that he had previously granted a motion to suppress when the magistrate recommended that the motion be denied.

Local Rule 503 tracked the language of 28 U.S.C. 636(b) limiting the scope of a magistrate's duties in criminal matters to those which were 'not inconsistent with the Constitution and laws of the United States.'

Local Rule 505(4) provides for a 'review of a magistrate's decision by the Judge' upon a notification in writing to the magistrate and the adverse party, with a statement of objections to be made promptly but in no event later than five days from notice of the magistrate's action or decision. It further provides that 'If review is requested, the Clerk shall promptly set and reasonably notice the time for review by the referring Judge; otherwise the court shall proceed to consider and take such action as it deems proper upon the report and any proposed order of the magistrate.'

Following the order of referral, and before any proceedings were held, the petitioner Campbell, on October 12, 1973, filed a petition in this court for a writ of mandamus, directing the trial judge to withdraw his previously entered order of reference and directing the judge to take evidence on the hearing of the motion to suppress, and for a stay pending the court's decision. A panel of this court granted a stay and expedited the proceeding.

II Constitutionality of the Statute as Applied

Petitioner makes no frontal attack on the constitutionality of the statute on its face. In substance, petitioner is contending that the statute as applied is unconstitutional.

Petitioner's first contention is based in part on Sec. I, Article III, of the Constitution of the United States. He contends that only an Article III judge can hear a motion to suppress. The section reads:

'Article III.-- The Judiciary

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.'

Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973), by analogy, decides this question. In that case, Palmore was tried and convicted by the Superior Court of the District of Columbia of a felony under the District's Criminal Code. He contended he was entitled to be tried by an Article III judge with lifetime tenure and salary protection. The District of Columbia Court of Appeals affirmed and the Supreme Court, in turn, affirmed the District of Columbia Court of Appeals.

The defendant's contention in Palmore was summed up by the Court as follows: '. . . an Article III judge must preside over every proceeding in which a charge, claim, or defense is based on an Act of Congress or a law made under its authority. At the very least, it asserts that criminal offenses under the laws passed by Congress may not be prosecuted except in courts established pursuant to Article III.' The Court held, 'In our view, however, there is no support for this view in either constitutional text or in constitutional history and practice.' (p. 400, 93 S.Ct. p. 1678). And, 'It was neither the legislative nor judicial view, therefore, that trial and decision of all federal questions were reserved for Art. III judges. Nor, more particularly has the enforcement of federal criminal law been deemed the exclusive province of federal Art. III courts.' (p. 402, 93 S.Ct. p. 1678). Amount of salary, lack of tenure and provisions for removal by a commission were found not to dictate a different decision. (pp. 407-410, 93 S.Ct. 1670.)

The magistrate serves for a term without tenure, at a salary below that of a district judge, and can be removed by the appointing judges. We see in these facts no reason to view his service as a violation of Article III of the Constitution.

III Under 28 U.S.C. 636(b) a United States Magistrate May Hold on Evidentiary Hearing on a Motion to Suppress

Section 636(b) provides that there may be assigned to magistrates, in addition to the duties listed in Section 636(a), 'such additional duties as are not inconsistent with the Constitution and laws of the United States.'

The additional duties authorized are not limited solely to those listed in 636(b)(1), (2) and (3), nor by ejusdem generis, but may include any duties not inconsistent with the Constitution or laws of the United States. 3

The doctrine of ejusdem generis was one of the grounds listed in Wedding v. Wingo (6 Cir. 1973) 483 F.2d 1131 affirmed sub nom. Wingo v. Wedding, 414 U.S. 1157, 94 S.Ct. 914, 39 L.Ed.2d 109, 1974, for barring a magistrate from conducting an evidentiary hearing in a habeas proceeding and making recommended findings of fact and conclusions of law. The Eighth Circuit in Noorlander v. Ciccone (1973) 489 F.2d 642, a habeas case, declined to subscribe to Wedding's ejusdem generis reasoning (p. 647) and we likewise refuse to follow it in our case involving a motion to suppress evidence. The Supreme Court in Wingo v. Wedding, supra, did not discuss ejusdem generis in its affirmance. (See discussion, infra.)

The Sixth Circuit, in Wedding v. Wingo, supra, 483 F.2d p. 1135, stated: 'This doctrine directs that a general provision of a statute will be controlled and limited by subsequent statutory language more specific in scope.' Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-229, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), was cited as authority for this proposition.

We cannot agree with the court's application of the ejusdem generis doctrine to Section 636(b). In Fourco the Supreme Court held that a special venue statute, 28 U.S.C. 1400(b), controlled over a general venue statute, 28 U.S.C. 1391(c). The Fourco case does not support the Sixth Circuit's conclusion regarding Section 636(b).

Congress, in 636(b), used language which clearly stated its intention that there may be assigned to a magistrate 'such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to . . ..' With such an express statement in the statute, it cannot be argued that the statute did not mean what it said. No conflict between a general and a specific proposition of law is involved as in the typical ejusdem generis situation.

The Supreme Court, in Wingo v. Wedding, supra, struck a blow against the use of magistrates, but we think that the case is limited to the use of magistrates in connection with habeas petitions and does not control our case. In substance, the Court held that 28 U.S.C. 2243, like its...

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