U.S. v. Ford, No. 86-1098

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, and GEE, RUBIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES; PATRICK E. HIGGINBOTHAM; E. GRADY JOLLY; RUBIN, Circuit Judge, with whom REAVLEY, JOHNSON, and WILLIAMS
Citation824 F.2d 1430
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lois E. Hilton FORD, Defendant-Appellant.
Docket NumberNo. 86-1098
Decision Date11 August 1987

Page 1430

824 F.2d 1430
56 USLW 2136
UNITED STATES of America, Plaintiff-Appellee,
v.
Lois E. Hilton FORD, Defendant-Appellant.
No. 86-1098.
United States Court of Appeals,
Fifth Circuit.
Aug. 11, 1987.

Carmen W. Glazner and Danny D. Burns, Fort Worth, Tex., Court-appointed, for defendant-appellant.

Marvin Collins, U.S. Atty., J. Michael Worley, Asst. U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, and GEE, RUBIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Today the government argues that Congress intended by the Federal Magistrates Act to grant to judges of United States District Courts authority to delegate to a magistrate as an "additional duty" the power to preside over the selection of the jury in felony cases. Given the grave constitutional questions such a construction would pose and the history and structure of the legislation creating the office of United States Magistrates, we are not persuaded of such congressional purpose.

We hold that the district court erred in allowing a magistrate to preside over jury selection. Neither the government nor the defendant objected to the substitution of the magistrate, however. Persuaded that the error was harmless beyond

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reasonable doubt and that the trial was fundamentally fair, we affirm the conviction.
I
A

Lois Ford was convicted by a federal jury in Fort Worth, Texas, of stealing government property. The government proved that Ford and others bid for surplus vehicles offered for sale by General Services Administration and gave worthless checks in payment.

She appealed, attacking her conviction on three grounds. She argued that the district court erred in directing the magistrate to preside over jury selection, that the evidence was insufficient that any concealed facts were material, and that the trial proof varied from the indictment.

A panel of this court affirmed, rejecting all of Ford's contentions. 1 The panel found that the congressional grant to district judges of the power to give to magistrates additional duties, not inconsistent with other law or the Constitution, included the power to direct magistrates to preside over jury selection in felony cases; that such delegation violated no law and was constitutional. 2 We took the case en banc, 3 and today reinstate the panel opinion in all respects except its treatment of the role of the magistrate in jury selection.

B

A United States Magistrate presided over the selection of the jury, which took some four hours despite the routine nature of the charges. The magistrate first summarized the indictment for the venire, introduced all counsel, and then personally interrogated each member of the venire. He gave a substantially complete jury charge, explaining the burden of proof in a criminal case, the presumption of innocence, the right of an accused not to testify, that statements and arguments of lawyers are not evidence, that objections of lawyers are to be disregarded, the nature of circumstantial evidence including a metaphor about wet grass, the judging of witness credibility, that jurors were not to communicate with others about the case, and the sequence of proof in a criminal case. Finally, the magistrate charged the venire not to read about the case or undertake research on its own. At this juncture, he allowed counsel to question the panel, then set the number of peremptory challenges--twelve strikes to be exercised jointly.

The selection was not free of difficulty. Ms. Demerson, a member of the venire, expressed "mixed feelings." She explained, "[W]hen you said circumstantial evidence and things, my son was killed in October [an apparent robbery victim eleven months earlier], and the evidence that they gave me, it happened isn't clear in my mind, and I still have doubts about it.... [H]e was killed in process of robbery, and the answers that they gave me has been two different sets of answers...." When the prosecutor asked whether she could accept direct and circumstantial evidence, she replied, "I think I could." After some exchanges, the magistrate rejected a defense challenge for cause.

The magistrate seated the selected jurors with two alternates in the jury box and excused the rest of the venire. After again instructing the jury not to discuss the case, he explained when the district judge planned to start the trial and instructed them to report to the jury room on that day.

While the local rules of the Northern District of Texas provide that a magistrate can preside over jury selection "with consent of the parties and the District Judge," 4 the rules make no explicit provision for review of any of the magistrate's rulings during voir dire, but provide generally that when reviewing non-dispositive rulings:

No ruling of a magistrate in any matter which he is empowered to hear and determine

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shall be reversed, vacated or modified on appeal unless the district judge shall determine that the findings of the magistrate are clearly erroneous, or that the magistrate's ruling is contrary to law or constitutes an abuse of discretion. 5

Neither the government nor defense counsel either expressly consented or objected to the magistrate's presiding over jury selection. The district judge was not available until two days after the petit jury had been carved from the venire. There was no attempt to obtain review by the district judge of the magistrate's rulings and in particular his rejection of the defense challenge for cause of Ms. Demerson.

II

The Magistrates Act of 1968 6 abolished the system of United States Commissioners, replacing it with a system of United States Magistrates. The Act required that all magistrates be attorneys if possible, eliminated the "anachronistic fee system of compensation," gave magistrates a secure eight-year term, and expanded their jurisdiction. 7

Section 636 of the Act, which defined magistrates' powers, empowered magistrates to try petty criminal offenses, generating considerable debate over whether magistrates could do so consistently with article III. 8 Chief Justice Burger noted that the Judicial Conference of the United States objected to Sec. 636 in its entirety, "fearing it so broad as to be subject to constitutional attack." 9 Throughout the debate, there was no suggestion that the Act authorized magistrates to conduct the trial of other than petty offenses. The implicit assumption was that magistrates presiding over the trial of felonies was not envisioned, to a certainty--despite the presence of the additional duty language now said to allow magistrates to preside over jury selection in felony cases. 10

The Magistrates Act was not changed in any relevant way until 1976. In 1974, the Supreme Court held that magistrates could not conduct evidentiary hearings in a petition for federal habeas corpus filed by a state prisoner because it was "inconsistent with the ... laws of the United States" within the meaning of the Federal Magistrates Act. 11 More specifically, the court held that the Habeas Corpus Act as consolidated into 28 U.S.C. Sec. 2243 required decisions by an article III judge. But the Court did not rest there, explaining, "We conclude further that [Local Rule 16] is to that extent invalid because, as we construe Sec. 636(b), that section itself precludes district judges from assigning magistrates the duty of conducting evidentiary hearings." 12

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Two years later, Congress, in response to Wingo, amended the Magistrates Act to clarify that a magistrate

shall serve as an officer of the court in disposing of minor and petty criminal offenses, in the preliminary or pretrial processing of both criminal and civil cases, and in hearing dispositive motions and evidentiary hearings when assigned to the magistrate by a judge of the court. 13

This 1976 amendment revised the magistrates' powers into four parts, 14 providing in the first that a judge can designate a magistrate "to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, [and] to suppress evidence in a criminal case...." 15 Significantly, Congress provided that a judge may reconsider the matters referred under this grant "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 16

In this new first part, Congress also allowed district judges to designate magistrates "to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations ... for any motion." 17 Finally it detailed a system by which "[a] judge of the court shall make a de novo determination of those portions of the [magistrate's] report ... to which objection is made." 18

In the second part, Congress gave to district judges the power to appoint a special master to serve in civil cases upon consent of the parties. 19

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Congress retained the additional duty provision from the Magistrates Act of 1968 as the third part without relevant change in language and without mentioning either the mechanics or the standard for review by a judge of any additional duty assigned to a magistrate. 20 Intending that courts be innovative in their use of magistrates, Congress suggested that "district courts would remain free to experiment in the assignment of other duties to magistrates which may not necessarily be included in the broad category of 'pretrial matters.' " 21 However, this legislative entreaty was in a quest for "increased time available to judges for the careful and unhurried performance of their vital and traditional adjudicatory duties." 22

Finally, Congress in the fourth...

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29 practice notes
  • U.S. v. Martinez-Torres, MARTINEZ-TORRE
    • United States
    • U.S. Court of Appeals — First Circuit
    • April 4, 1990
    ..."waived his right to object," the same not amounting to plain error. Rivera-Sola, 713 F.2d at 872, 874. See also United States v. Ford, 824 F.2d 1430, 1434-39 (5th Cir.1987) (en banc) (holding practice to be impermissible, but affirming conviction because defendant "did not object and ... t......
  • U.S. v. Gamba, No. 06-35021.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 11, 2007
    ...(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. 10......
  • Clark v. Poulton, No. 88-1177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 11, 1992
    ...to object constitutes consent to reference), cert. denied, 495 U.S. 949, 110 S.Ct. 2211, 109 L.Ed.2d 537 (1990); United States v. Ford, 824 F.2d 1430, 1438-39 (5th Cir.1987) (failure to object to magistrate's jury selection constitutes waiver of error); cf. United States v. Rivera-Sola, 713......
  • Peretz v. United States, No. 90-615
    • United States
    • United States Supreme Court
    • June 27, 1991
    ...(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. 1......
  • Request a trial to view additional results
29 cases
  • U.S. v. Martinez-Torres, MARTINEZ-TORRE
    • United States
    • U.S. Court of Appeals — First Circuit
    • April 4, 1990
    ..."waived his right to object," the same not amounting to plain error. Rivera-Sola, 713 F.2d at 872, 874. See also United States v. Ford, 824 F.2d 1430, 1434-39 (5th Cir.1987) (en banc) (holding practice to be impermissible, but affirming conviction because defendant "did not object and ... t......
  • U.S. v. Gamba, No. 06-35021.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 11, 2007
    ...(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. 10......
  • Clark v. Poulton, No. 88-1177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 11, 1992
    ...to object constitutes consent to reference), cert. denied, 495 U.S. 949, 110 S.Ct. 2211, 109 L.Ed.2d 537 (1990); United States v. Ford, 824 F.2d 1430, 1438-39 (5th Cir.1987) (failure to object to magistrate's jury selection constitutes waiver of error); cf. United States v. Rivera-Sola, 713......
  • Peretz v. United States, No. 90-615
    • United States
    • United States Supreme Court
    • June 27, 1991
    ...(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. 1......
  • Request a trial to view additional results

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