Peretz v. United States

Decision Date27 June 1991
Docket NumberNo. 90-615,90-615
Citation111 S.Ct. 2661,115 L.Ed.2d 808,501 U.S. 923
PartiesRafael PERETZ, Petitioner v. UNITED STATES
CourtU.S. Supreme Court

Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923, held that the selection of a jury in a felony trial without a defendant's consent is not one of the "additional duties" that magistrates may be assigned under the Federal Magistrates Act. That decision rested on the lack of both an express statutory provision for de novo review and an explicit congressional intent to permit magistrates to conduct voir dire absent the parties' consent. And it was compelled by concerns that a defendant might have a constitutional right to demand that an Article III judge preside at every critical stage of a felony trial and that the procedure deprived an individual of an important privilege, if not a right. In this case, petitioner Peretz consented to the assignment of a Magistrate to conduct the voir dire and supervise the jury selection for his felony trial, never asked the District Court to review the Magistrate's rulings, and raised no objection regarding jury selection at trial. However, on appeal from his conviction, he contended that it was error to assign the jury selection to the Magistrate. The Court of Appeals affirmed the conviction on the ground that Gomez requires reversal only in cases in which the magistrate has acted without the defendant's consent.


1. The Act's "additional duties" clause permits a magistrate to supervise jury selection in a felony trial provided that the parties consent. The fact that there is only ambiguous evidence of Congress' intent to include jury selection among magistrates' additional duties is far less important here than it was in Gomez, for Peretz' consent eliminates the concerns about a constitutional issue and the deprivation of an important right. Absent these concerns, the Act's structure and purpose evince a congressional belief that magistrates are well qualified to handle matters of similar importance to jury selection. This reading of the additional duties clause strikes the balance Congress intended between a criminal defendant's interests and the policies undergirding the Act. It allows courts, with the litigants' consent, to continue innovative experiments in the use of magistrates to improve the efficient administration of the courts' dockets, thus relieving the courts of certain subordinate duties that often distract them from more important matters. At the same time, the consent requirement protects a criminal defendant's interest in requesting the presence of a trial judge at all critical stages of his felony trial. Pp. 932-936.

2. There is no constitutional infirmity in the delegation of felony trial jury selection to a magistrate when the litigants consent. A defendant has no constitutional right to have an Article III judge preside at jury selection if he has raised no objection to the judge's absence. Cf. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 848, 106 S.Ct. 3245, 3255, 92 L.Ed.2d 675. Cf. also, e.g., United States v. Gagnon, 470 U.S. 522, 528, 105 S.Ct. 1482, 1485, 84 L.Ed.2d 486. In addition, none of Article III's structural protections are implicated by this procedure. The entire process takes place under the total control and jurisdiction of the district court, which decides, subject to veto by the parties, whether to invoke a magistrate's assistance and whether to actually empanel the jury selected. See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424. That the Act does not provide for a de novo review of magistrates' decisions during jury selection does not alter this result, for, if a defendant requests review, nothing in the statute precludes a court from providing the review required by the Constitution. See id., at 681, n. 7, 100 S.Ct., at 2415, n. 7. Pp. 936-939.

904 F.2d 34 (CA2 1990), affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which WHITE and BLACKMUN, JJ., joined. SCALIA, J., filed a dissenting opinion.

Joel B. Rudin, New York City, for petitioner.

William C. Bryson, Washington, D.C., for respondent.

Justice STEVENS delivered the opinion of the Court.

The Federal Magistrates Act grants district courts authority to assign magistrates certain described functions as well as "such additional duties as are not inconsistent with the Constitution and laws of the United States." 1 In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), we held that those "additional duties" do not encompass the selection of a jury in a felony trial without the defendant's consent. In this case, we consider whether the defendant's consent warrants a different result.


Petitioner and a codefendant were charged with importing four kilograms of heroin. At a pretrial conference attended by both petitioner and his counsel, the District Judge asked if there was "[a]ny objection to picking the jury before a magistrate?" App. 2. Petitioner's counsel responded: "I would love the opportunity." Ibid. Immediately before the jury selection commenced, the Magistrate asked for, and received, assurances from counsel for petitioner and from counsel for his codefendant that she had their clients' consent to proceed with the jury selection.2 She then proceeded to conduct the voir dire and to supervise the selection of the jury. Neither defendant asked the District Court to review any ruling made by the Magistrate.

The District Judge presided at the jury trial which resulted in the conviction of petitioner and the acquittal of his codefendant. In the District Court, petitioner raised no objection to the fact that the Magistrate had conducted the voir dire. On appeal, however, he contended that it was error to assign the jury selection to the Magistrate and that our decision in Gomez required reversal. The Court of Appeals disagreed. Relying on its earlier decision in United States v. Musacchia, 900 F.2d 493 (CA2 1990), it held "that explicit consent by a defendant to magistrate-supervised voir dire waives any subsequent challenge on those grounds," and affirmed petitioner's conviction. App. to Pet. for Cert. 2a; 904 F.2d 34 (1990) (affirmance order).

In Musacchia, the Second Circuit had affirmed a conviction in a case in which the defendant had not objected to jury selection by the Magistrate. The Court of Appeals concluded that our holding in Gomez applied only to cases in which the magistrate had acted without the defendant's consent. The court explained:

"Appellants additionally claim that Gomez states that a magistrate is without jurisdiction under the Federal Magistrates Act to conduct voir dire. We disagree. Since Gomez was decided we and other circuits have focused on the 'without defendant's consent' language and generally ruled that where there is either consent or a failure to object a magistrate may conduct the jury voir dire in a felony case. See [United States v. Vanwort, 887 F.2d 375, 382-383 (CA2 1989), cert. denied, sub nom. Chapoteau v. United States, 495 U.S. ----, 110 S.Ct. 1927, 109 L.Ed.2d 290 (1990); United States v. Mang Sun Wong, 884 F.2d 1537, 1544 (CA2 1989), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990); United States v. Lopez-Pena, 912 F.2d 1542, 1545-1548 (CA1 1989) ] (not plain error to permit magistrate to preside since objection to magistrate must be raised or it is waived); Government of the Virgin Islands v. Williams, 892 F.2d 305, 310 (3d Cir.1989) (absent demand no constitutional difficulty under § 636(b)(3) with delegating jury selection to magistrate); United States v. Ford, 824 F.2d 1430, 1438-39 (5th Cir.1987) (en banc) (harmless error for magistrate to conduct voir dire where defendant failed to object), cert. denied, 484 U.S. 1034, 108 S.Ct. 741, 98 L.Ed.2d 776 (1988); United States v. Wey, 895 F.2d 429 (7th Cir.1990) (jury selection by magistrate is not plain error where no prejudice is shown). Concededly, [United States v. France, 886 F.2d 223 (CA9 1989),] concluded otherwise. The court there ruled that defendant's failure to contemporaneously object to the magistrate conducting jury selection did not waive her right to appel- late review. 886 F.2d at 226. But that holding may be explained, as noted earlier, by what the court perceived as the futility of defendant raising an objection below." 900 F.2d, at 502.

The conflict among the Circuits described by the Court of Appeals prompted us to grant the Government's petition for certiorari in the France case, see 495 U.S. ----, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990). Earlier this term, we affirmed that judgment by an equally-divided Court, 498 U.S. ----, 111 S.Ct. 805, 112 L.Ed.2d 836 (1991). Thereafter, we granted certiorari in this case and directed the parties to address the following three questions:

"1. Does 28 U.S.C. § 636 permit a magistrate to conduct the voir dire in a felony trial if the defendant consents?

"2. If 28 U.S.C. § 636 permits a magistrate to conduct a felony trial voir dire provided that the defendant consents, is the statute consistent with Article III?

"3. If the magistrate's supervision of the voir dire in petitioner's trial was error, did the conduct of petitioner and his attorney constitute a waiver of the right to raise this error on appeal?" See 493 U.S. ----, 111 S.Ct. 781, 112 L.Ed.2d 844 (1991).

Resolution of these questions must begin with a review of our decision in Gomez.


Our holding in Gomez was narrow. We framed the question presented as "whether presiding at the selection of a jury in a felony trial without the defendant's consent is among those 'additional duties' " that district courts may assign to magistrates. 490 U.S., at 860, 109 S.Ct., at 2239 (emphasis added). We held that a magistrate "exceeds his jurisdiction" by selecting a jury "de...

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