U.S. v. Gamba

• Decision Date: 28 August 2008
• Docket Number: No. 06-35021.,06-35021.
• Citation: 541 F.3d 895
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Justin Metuchen GAMBA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

541 F.3d 895

UNITED STATES of America, Plaintiff-Appellee, v. Justin Metuchen GAMBA, Defendant-Appellant.

No. 06-35021.

United States Court of Appeals, Ninth Circuit.

August 28, 2008.

Daniel R. Wilson, Measure, Robbin & Wilson, P.C., Kalispell, MT, for the defendant-appellant.

Joshua S. Van de Wetering, Assistant United States Attorney, Missoula, MT, for the plaintiff-appellee.

On Remand from the United States Supreme Court. D.C. Nos. CV-04-00162-DWM, CR-01-00068-DWM.

Before: ALFRED T. GOODWIN, RAYMOND C. FISHER, and MILAN D. SMITH, JR., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:

Justin Metuchen Gamba was convicted and sentenced for witness tampering in violation of 18 U.S.C. § 1512(b). Gamba appeals the district court's denial of his petition for relief filed under 28 U.S.C. § 2255. Specifically, Gamba argues that the district court erred in denying his § 2255 motion because it did not find Gamba's appellate counsel ineffective when he failed to challenge on appeal the magistrate judge's jurisdiction to preside over closing argument without Gamba's personal consent. We affirm because the magistrate judge had proper jurisdiction over closing argument at Gamba's trial. Defense counsel may waive a defendant's right to have an Article III judge conduct closing argument without the defendant's express, personal consent where the decision is one of trial tactics or strategy.

FACTS AND PROCEDURAL HISTORY

Gamba was charged with two counts of making false statements in violation of 18 U.S.C. § 1001, two counts of witness tampering in violation of 18 U.S.C. § 1512(b), and one count of being an accessory after the fact in violation of 18 U.S.C. § 3. All of Gamba's charges arose from his attempts to foil the prosecution of his girlfriend on drug and gun charges. He pleaded not guilty to all charges and the case was set for jury trial. Gamba retained attorney Ed Sheehy to represent him at trial.

Gamba's trial lasted one day. After testimony concluded, Sheehy, without Gamba being present, and the Assistant United States Attorney, Joshua Van de Wetering, convened in the district court judge's chambers to finalize jury instructions. After the instructions were finalized, Chief District Judge Molloy informed the parties that he had to pick his wife up from the hospital and suggested that the trial reconvene after he returned. The relevant portion of the trial transcript reads as follows:

THE COURT: Let me tell you what the problem is that I've got. I've got to pick my wife up at the hospital at 2:30 and run her home and then come back here. So what I'd like to do, if at all possible — and — shoot, it will be — 2:30, make sure you're here at 2:30, because that's when it will be. And it just may delay me a little bit. Do you have any objection?

One thing that I could do is have Judge Erickson sit in on the argument and submit the case to the jury. I mean, I can instruct the jury, but then he would just preside and give it to the jury.

MR. SHEEHY: Yeah, I have no objection to that.

THE COURT: I'll leave it up to you guys and I won't force you, I just have to —

MR. SHEEHY: I understand.

THE COURT: If they did things the way I try and run things, I could go over, pick her up and be back in half hour.

MR. SHEEHY: I understand what you're talking about; I have no problem doing that.

MR.VAN de WETERING: I think that's a great idea.

(Whereupon, the Court picked up the phone and had telephone conversation with Magistrate Judge Erickson's assistant.)

THE COURT: So is that all right with you guys?

MR SHEEHY: Yeah.

THE COURT: Is that all right with the defendant?

MR. SHEEHY: Yeah, he won't care.

THE COURT: So here's what we're going to do.... I'll go in, instruct the jury, you get on your opening, you on yours and, hopefully, we can get it done. But if we're running out of time at 2:30, I'll take a break and then ask Judge Erickson to come in and just sit there for the balance of the argument and submit the instructions and Mary will swear in the bailiff and then send them off.

Shortly thereafter, the trial reconvened in the courtroom with Gamba and the jury present. Judge Molloy addressed the jury:

THE COURT: I am going to have to leave at 2:30 because my wife had a medical procedure and I have to pick her up. So Judge Erickson, who is the magistrate judge, will come in and preside over the arguments of counsel in this case. They'll start while I'm here, but we may take a real short break so that I can step off and he can come in. The parties have consented to that.

(Emphasis added). Neither Gamba nor his counsel raised any objection to Judge's Molloy's announcement.

Judge Molloy exited the courtroom after instructing the jury and after counsel for the government had begun his closing argument. Magistrate Judge Erickson took the bench. Neither Gamba nor his counsel objected to the presence of Magistrate Judge Erickson, who made no comments or rulings during the time he presided over the closing arguments. At the conclusion of closing argument, Magistrate Judge Erickson submitted the case to the jury. The jury found Gamba guilty of witness tampering in violation of 18 U.S.C. § 1512(b) and Gamba was later sentenced to thirty-three months imprisonment. Gamba did not object to the magistrate judge's presiding over closing argument after the jury handed down its verdict or when he was sentenced by the district court.

Gamba's petition for relief under 28 U.S.C. § 2255 comes after this court denied his first appeal for insufficiency of evidence. See United States v. Gamba, 76 Fed.Appx. 209 (9th Cir.2003). The district court denied Gamba's § 2255 motion on the grounds that Gamba's counsel did not render ineffective counsel by consenting to the magistrate judge presiding over closing argument or by failing to raise the magistrate judge consent issue on appeal, but granted Gamba a certificate of appealability on the magistrate jurisdiction issue pursuant to 28 U.S.C. § 2253(c).

On April 11, 2007, we affirmed the district court's holding that the magistrate judge had proper jurisdiction over closing arguments. United States v. Gamba, 483 F.3d 942 (2007). The Supreme Court vacated our decision and remanded for further consideration in light of Gonzalez v. United States, ___ U.S. ___, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008). See Gamba v. United States, ___ U.S. ___, 128 S.Ct. 2472, 171 L.Ed.2d 764 (2008) (mem.). At our request, the parties submitted supplemental briefing on the effect of Gonzalez on this case. The parties did not raise any questions of fact, and both parties agree that Gonzalez supports the district court's decision. We now reconsider this case in light of Gonzalez.

JURISDICTION

We have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 2255.

STANDARD OF REVIEW

Whether the district court's delegation of authority to a magistrate judge to preside over closing argument is proper under the Federal Magistrates Act is a question of law subject to de novo review. United States v. Colacurcio, 84 F.3d 326, 328 (9th Cir.1996). The district court's denial of a 28 U.S.C. § 2255 motion is also subject to de novo review. United States v. Ware, 416 F.3d 1118, 1120 (9th Cir. 2005).

DISCUSSION

We address the issue of whether a district court judge may lawfully appoint a magistrate judge to preside over closing argument at a felony criminal trial if the defendant's counsel has, for trial tactic or legal strategy purposes and without the defendant's express, personal consent, agreed to such appointment.¹

"The Federal Magistrates Act, 28 U.S.C. §§ 631-39, governs the jurisdiction and authority of federal magistrates." United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir.2003) (en banc). The Act allows the district court to assign magistrate judges certain enumerated duties, as well as any "additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b)(3).

The Supreme Court initially examined the scope of the "additional duties" provision of the Act in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), in the context of whether a magistrate judge had jurisdiction to preside over voir dire in a felony trial. In Gomez, the Court determined the magistrate judge had exceeded his jurisdiction by conducting voir dire in a felony trial over the defendant's objection. Id. at 876, 109 S.Ct. 2237. Because the Court found no reference to jury selection in the Federal Magistrates Act or its legislative history, it determined Congress did not intend to include jury selection within the § 636(b)(3) "additional duties" provision. Id. at 871-76, 109 S.Ct. 2237.

Two years later, faced with a conflict among the circuits in interpreting Gomez and applying the § 636(b)(3) catch-all "additional duties" provision, the Court decided Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). In Peretz, the petitioner and his counsel attended a pretrial conference, at which the district judge asked if there was any objection to a magistrate judge picking the jury and conducting voir dire. Id. at 925, 111 S.Ct. 2661. The petitioner's counsel stated, "I would love the opportunity," and before jury selection, counsel for the petitioner and his codefendant assured the magistrate judge that the magistrate judge had their clients' consent to proceed. Id. The Court held that the delegation was proper, and stated that the rationale of Gomez "does not apply when the defendant has not objected to the magistrate's conduct of the voir dire." Id. at 933, 111 S.Ct. 2661 (collecting cases) (emphasis added). The Court further noted that the holding in Gomez was "carefully limited to the situation in which the parties had not acquiesced at trial to the magistrate's role" and commented that courts had "uniformly rejected challenges to a magistrate's authority to conduct the voir dire when no objection to his performance of the duty had been...