U.S. v. Ford

• Citation: 797 F.2d 1329
• Decision Date: 22 August 1986
• Docket Number: No. 86-1098,86-1098
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lois E. Hilton FORD, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1329

797 F.2d 1329

UNITED STATES of America, Plaintiff-Appellee, v. Lois E. Hilton FORD, Defendant-Appellant.

No. 86-1098

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 22, 1986.

Danny D. Burns, Court appointed, Fort Worth, Tex., 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 RUBIN, JOHNSON, and JONES, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A federal magistrate presided at the selection of the jury for a felony trial, without objection by the accused. The district judge, however, was present when the clerk administered the oath to the jury and throughout the trial. We hold that the magistrate's participation in jury selection did not violate the statutory provisions regulating the scope of the duties that may be delegated to a magistrate or deny the accused due process of law. We also affirm the defendant's conviction on the charge of covering up a material fact, in violation of 18 U.S.C. Sec. 1001, and her conviction on the charge of theft of a motor vehicle finding no legally significant variation between the indictment and the evidence presented by virtue of a difference in two digits of the identification number of a vehicle otherwise accurately described in the indictment.

I.

Two of the four persons charged in a multi-count indictment entered guilty pleas. When trial of the case against the remaining two defendants, Owen Ray Hilton and his erstwhile wife, Lois E. Hilton Ford, was to begin, Judge David Belew, Jr., to whom the case was assigned, was still engaged in the trial of another case. He orally requested Magistrate Alex McGlinchey to preside during the selection of a jury. The magistrate introduced himself to the jury venire, explained the case, and conducted the first part of the voir dire. He then allowed counsel for each side to address the jury and continue with the voir dire. He advised the two defendants, each of whom was represented by different counsel, that they each might have ten peremptory challenges or, if they wished to exercise their challenges jointly, they could have twelve challenges. The defendants agreed to exercise their challenges jointly. After the magistrate granted one challenge for cause, without objection, the parties exercised their peremptory challenges. The jury was then excused. Two days later, the jury was recalled and then sworn before Judge Belew. Prior to trial, no objection to the procedure was lodged either with the magistrate or Judge Belew.

Federal Rule of Criminal Procedure 24 states, "The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination." ¹ The prevailing practice in federal court is for the trial judge to preside over the selection of a jury, but the federal rules do not require it. Professor Orfield, in his treatise Criminal Procedure Under the Federal Rules, states, "[N]either Rule 24(a) nor the principles of due process require the presence of the trial judge during the selection of a jury, and, as a general rule, the right to have the judge present during the selection of the jury may be waived." ²

The powers of a United States Magistrate are set out in 28 U.S.C. Sec. 636. After authorizing the magistrate to perform certain specific duties, ³ the statute, at Sec. 636(b)(3), states: "A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." ⁴ The House Report on the bill that was eventually enacted indicates that this "additional-duties" provision is to be broadly construed as authorizing magistrates to perform a wide range of quasi-judicial tasks. ⁵ It adds that this section "enables the district courts to continue innovative experimentations in the use of this judicial officer." ⁶ The Legal Manual for United States Magistrates lists as an "additional duty" that may be delegated to a magistrate the "[c]onduct[ing] of voir dire and selecti[ng] of juries for district judge." ⁷

In accordance with congressional intent, the authority given courts to delegate to magistrates powers not explicitly mentioned in Sec. 636(a) or (b)(1) & (2) has been held to sanction the delegation of a number of quasi-judicial duties. Thus, in Mathews v. Weber, ⁸ the Supreme Court upheld a district court rule that required initial reference to a magistrate of all actions to review administrative determinations regarding entitlement to Social Security benefits. In United States v. Saunders, ⁹ the Ninth Circuit held that it was permissible for a magistrate, when the judge left him in charge of a jury during deliberations, to direct the jury to continue its deliberations during evening hours. Even if this action was "inherently judicial," the court found that the magistrate might constitutionally execute it under the supervision of an Article III judge because the magistrate was acting, in effect, as a "para-judge." ¹⁰ The Seventh Circuit has held that 28 U.S.C. Sec. 636(b)(3) permitted a magistrate to issue a warrant authorizing the Secretary of Labor to inspect a workplace. The court found the action not inconsistent with the Constitution and federal laws and not forbidden by Sec. 636(b)(1). ¹¹ And this circuit has refused to reverse a conviction on the ground that, when the judge became ill, the magistrate presided during four hours of closing argument. ¹²

The question whether the judge must be present when a jury was selected was first raised in Stirone v. United States, ¹³ in which selection of a jury by a deputy clerk was challenged in a collateral attack on a prior conviction. The judge had been present during most of the voir dire but left the bench to go to his chambers when counsel began making their peremptory challenges. ¹⁴ Because there had been no objection, the court found that the defendant had waived his right to object to the absence of the judge. Then in a footnote, ¹⁵ the Third Circuit added:

In fairness to the trial judges of this circuit, hereafter in criminal cases, irrespective of suggestion of waiver by the parties, trial judges will not leave the bench during any part of the voir dire or other jury selection process without recessing the court.

Shortly after it decided Stirone, however, the Third Circuit, in Haith v. United States, ¹⁶ affirmed a district court decision approving the selection of a jury by counsel outside the judge's presence. The district court opinion stated that this had been the prevailing practice in both the Eastern and Western Districts of Pennsylvania for many years and the court held that the right to object had been waived by the parties. ¹⁷

The precise issue presented in this case, the selection of a jury by a federal magistrate in a criminal case, was first considered by the First Circuit in United States v. Rivera-Sola. ¹⁸ The court held that, by failing to object to the procedure initially, the defendant had waived his right to do so. But because this appeared to be the practice in the District Court of Puerto Rico, the appellate court went on to review it and, in a lengthy comment, approved. ¹⁹ The court concluded:

We think that a magistrate can effectively conduct the voir dire and preside at the selection of juries in civil and criminal cases, thus saving valuable time for our busy district court judges. The trial of criminal cases is, however, entrusted to district judges. Preliminary as well as final jury instructions play an important part in the trial of any case. The jury should not be given the impression that the instructions given it are merely a routine matter of form. ²⁰

In United States v. DeFoire, ²¹ the Second Circuit reached the same result, relying on the defendant's failure to object to the use of the magistrate.

In these cases, the defendant had not objected, but the Ninth Circuit has found an objection without merit. In United States v. Peacock, ²² that court held that the selection of jurors by a magistrate offends neither the statute nor Article III of the Constitution, even when the defendant has timely objected, so long as de novo review of the jury selection procedure by the district court is available.

This conclusion is sound in principle. Magistrates are para-judicials appointed to assist trial judges. The very purpose of their appointment is to minimize the burden on Article III judges of detailed work and thus enable judges to handle a greater volume of truly judicial assignments. When this new judicial office was created, Congress could not foresee the precise scope of the duties a magistrate might perform, so it encouraged innovation and experiment. So long as no inherently judicial task is delegated to the magistrate in violation of the Constitution or the express provisions of the statute, the innovative use of magistrates fulfills Congress' purpose. We therefore hold not only that the right to object was waived, but that objection would have been without merit if voiced.

While the due process argument was not specifically addressed, as such, in any of the cases we have cited, due process requires only fundamental fairness. ²³ The procedure followed in this case was entirely fair, subject to review by the district court, and permitted by the statute and Article III of the Constitution. We, therefore, join our sister circuits in approving the use of federal magistrates to preside over jury selection in civil and criminal cases.

II.

The evidence, construed most favorably to the Government as it must now be, shows a scheme to swindle the United States that was bound eventually to be uncovered. In 1981, Ford and her then husband, Hilton, together with two others, conspired to obtain government property, ostensibly by purchasing it with checks drawn on accounts known by them to...