U.S. v. Gamba
| Decision Date | 11 April 2007 |
| Docket Number | No. 06-35021.,06-35021. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Justin Metuchen GAMBA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Daniel R. Wilson, Measure, Robbin & Wilson, P.C., Kalispell, Montana, for the defendant-appellant.
Joshua S. Van de Wetering, Assistant United States Attorney, Missoula, Montana, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. Nos. CV-04-00162-DWM, CR-01-00068-DWM.
Before: GOODWIN, FISHER, and MILAN D. SMITH, JR., Circuit Judges.
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 where the decision is one of trial tactics or strategy.
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. 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.)
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).
We have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 2255.
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).
The issue before us is one of first impression in this circuit. Specifically, we address 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, 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). Because the dissent relies on what we respectfully take to be a misreading of Peretz, we review its facts and holding at some length.
In Peretz, the facts were as follows:
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?" Petitioner's counsel responded: "I would love the opportunity." 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. 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. . . . In the District Court, petitioner raised no objection to the fact that the Magistrate had conducted the voir dire.
Id. at 925, 111 S.Ct. 2661 (citations omitted).
On appeal from his conviction to the Second Circuit Court of Appeals, Peretz contended that the lower court had erred in assigning jury selection to the magistrate and that the Court's decision in Gomez required reversal. The Court of Appeals disagreed, citing its earlier decision in United States v. Musacchia, 900 F.2d 493 (2d Cir.1990), in which "the Second Circuit had affirmed a conviction in a case in which the defendant had not objected to jury selection by the Magistrate." Id. at 926, 111 S.Ct. 2661. In order to illustrate the conflict among the circuits, the Supreme Court then quoted approvingly and at length from the Second Circuit's Musacchia opinion:
Appellants additionally claim that Gomez states...
To continue reading
Request your trial
-
U.S. v. Gamba
...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.......
-
Gamba v. United States
...GAMBA, petitioner,v.UNITED STATES.No. 07–6054.Supreme Court of the United StatesMay 19, 2008. OPINION TEXT STARTS HERE Case below, 483 F.3d 942. On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Motion of petitioner for leave to proceed in forma......