U.S. v. Lopez-Pena

• Decision Date: 05 May 1989
• Docket Number: MARTINEZ-TORRE,D,MARTINEZ-TORRES,Nos. 87-2003,LOPEZ-PEN,s. 87-2003
• Citation: 912 F.2d 1542
• Parties: UNITED STATES of America, Appellee, v. Esnoelefendant, Appellant. UNITED STATES of America, Appellee, v. Hector BURGOS, a/k/a "Tito," Defendant, Appellant. UNITED STATES of America, Appellee, v. Elvin Perez SOTO and Fernando Rupert-Gonzalez, Defendants, Appellants. UNITED STATES of America, Appellee, v. Santos Jesusefendant, Appellant. UNITED STATES of America, Appellee, v. Luis Alfredoefendant, Appellant. UNITED STATES of America, Appellee, v. Epifanio, a/k/a "Fanny," Defendant, Appellant. through 87-2008. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1542

912 F.2d 1542

UNITED STATES of America, Appellee, v. Esnoel LOPEZ-PENA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Hector BURGOS, a/k/a "Tito," Defendant, Appellant.

UNITED STATES of America, Appellee, v. Elvin Perez SOTO and Fernando Rupert-Gonzalez, Defendants,

Appellants.

UNITED STATES of America, Appellee, v. Santos Jesus MARTINEZ-TORRES, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Luis Alfredo MARTINEZ-TORRES, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Epifanio MARTINEZ-TORRES, a/k/a "Fanny," Defendant, Appellant.

Nos. 87-2003 through 87-2008.

United States Court of Appeals First Circuit.

Heard May 5, 1989.

Decided Nov. 22, 1989.

As Amended Dec. 1, 1989.

Maria H. Sandoval, and Law Offices of Nachman & Fernandez-Sein, Santurce, P.R., on brief for movants Esnoel Lopez-Pena and Hector Burgos.

Luis R. Rivera, Old San Juan, P.R., and Marco Antonio Rigau, San Juan, P.R., on brief for movants Elvin Perez Soto and Fernando Rupert-Gonzalez.

Pia Gallegos, New York City, and Harry Anduze Montano, on brief, for movants Santos Jesus Martinez-Torres, Luis Alfredo Martinez-Torres and Epifanio Martinez-Torres.

J. Douglas Wilson, Atty., Dept. of Justice, Washington, D.C., Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., and Jorge E. Vega-Pacheco, Asst. U.S. Atty., San Juan, P.R., on brief for the U.S.

Before SELYA and ALDRICH, Circuit Judges, and RE, ^* Judge.

SELYA, Circuit Judge.

Defendants' appeals in these cases had been argued, the panel was agreed on an opinion, and publication was imminent when defendants moved to remand the cases with a direction to dismiss the indictment. Defendants' motions were based upon the announcement of United States v. Gomez, --- U.S. ----, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). In Gomez, a case arising from another circuit, the defendants had objected to empanelment of a felony jury by a United States magistrate rather than by a district judge. Although unsuccessful in the trial court and on initial appeal, United States v. Garcia, 848 F.2d 1324 (2d Cir.1988), defendants' preserved objection was sustained by the Supreme Court and a new trial ordered. 109 S.Ct. at 2245-48.

Seizing upon Gomez, appellants before us--none of whom had objected to the magistrate's jury empanelment--filed the instant motions. We ordered the government to brief the matter. Having determined that the motions must be denied, we explain why and simultaneously release our opinion on the merits.

I

The government's initial contention is that Gomez has only prospective application. Under earlier caselaw, this would likely have been correct. See, e.g., Williams v. United States, 401 U.S. 646, 653-56, 91 S.Ct. 1148, 1152-54, 28 L.Ed.2d 388 (1971) (plurality opinion) (where new constitutional standard does not raise serious questions about accuracy of guilty verdicts in past cases, retroactivity not required); Mackey v. United States, 401 U.S. 667, 672-75, 91 S.Ct. 1160, 1163-65, 28 L.Ed.2d 404 (1971) (plurality opinion) (similar). Decisions such as Williams, 401 U.S. at 656-59, 91 S.Ct. at 1154-56, and Mackey, 401 U.S. at 673-75, 91 S.Ct. at 1163-65, made no distinction for retroactivity purposes between cases pending on direct appeal and cases essaying collateral review. ¹

United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), signalled a change in direction. There, the Court held that decisions construing the fourth amendment and apparently meeting the Williams benchmark should apply retroactively to defendants whose cases were pending on direct appeal. Id. at 562, 102 S.Ct. at 2593. Johnson, however, did not go the whole hog; for decisions of a constitutional dimension not implicating the fourth amendment, it seemed still desirable to offset against any unfairness to pending defendants the unfairness to the government and the court, if there had been well-justified reliance on prior law, and if retroactive application would produce grave and disproportionate consequences. See id. In the latter circumstance, there would be no retroactivity. Id. at 549-50, 102 S.Ct. at 2586-87. Such reliance could be based upon prior Supreme Court decisions or on "a longstanding and widespread practice to which th[e] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved." Id. at 551, 102 S.Ct. at 2588.

In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Court attempted to plot a straighter path, acknowledging, in so many words, that it had come to realize even more fully the wisdom of a distinction long drawn by Justice Harlan, see Mackey, 401 U.S. at 675-702, 91 S.Ct. at 1164-65 (Harlan, J., concurring in part and dissenting in part). The Griffith Court was presented with a defendant convicted by a jury as to which the government had exercised peremptory challenges in a manner held prima facie unconstitutional in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a case decided subsequent to Griffith's trial. Although the prosecutor's action was considered fully proper when taken, the Court held that defendant, on direct review, was entitled to claim the new rule, and hence obtain a new trial. 479 U.S. at 328, 107 S.Ct. at 716. That was so notwithstanding that Batson could be regarded as a "clear break" with past precedent. Id. 479 U.S. at 326, 107 S.Ct. at 715. In short, Griffith held that, for criminal cases still undergoing direct review, even justified reliance on prior law would not prevent retroactivity. Id. at 328, 107 S.Ct. at 716.

Although the practical consequences in terms of eligible, nonfinal, defendants are far more extensive in the case of magistrates' empaneling, ² we think Griffith applies. The government's arguments to the contrary are unpersuasive. Taking its brief chronologically, it states that certain Supreme Court cases, commencing with Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971), which the government describes as a civil case interpreting a federal statute, "provide substantial guidance." It would distinguish Griffith as a criminal case involving a constitutional rule of procedure, adding that it "would be unfair to similarly situated defendants and a departure from the Court's adjudicatory function not to apply new constitutional rules of criminal procedure retroactively." We cannot think, however, that criminal defendants whose cases are still pending on direct appeal should be any less entitled to claim the protection of important substantive statutes than of rights found in the Constitution.

To downplay Gomez by saying, as does the government, that it involved "a purely procedural statute," is a bit like saying that Willie Mays was "just an outfielder." The thrust of the Court's opinion, and the fair import of its language, support no implication of mere procedural technicality. We find nothing in Griffith, either in terms or purport, distinguishing between constitutional and statutory interpretations; and we see no significant difference in kind for the purpose of retroactivity between the government's improper challenges of jurors whom the defendant might like to have sit and the interposition of an "unauthorized" person to preside over the entire empaneling. We rule, therefore, that the Gomez holding applies to cases, like this one, which were pending on direct appeal when Gomez was decided. ³ Accord United States v. France, 886 F.2d 223, 224 (9th Cir.1989).

II

A more difficult question is whether these defendants, not having objected below, can be heard here on the basis of plain error. In Gomez, the defendants preserved their rights, and the Court was careful to limit its holding accordingly. See, e.g., Gomez, 109 S.Ct. at 2239 (describing "question presented" as "whether presiding at the selection of a jury in a felony trial without the defendant's consent" is a proper office of a magistrate) (emphasis supplied). Here, defendants did not object to the magistrate's oversight of jury empanelment, and we must make an independent determination as to whether failure to interpose such an objection thwarts defendants' avowed reliance on Gomez. The two circuits which have addressed similar questions in Gomez's aftermath reached opposite conclusions. Compare France 886 F.2d at 227 (Gomez applies despite absence of contemporaneous objection to magistrate's empanelment) with United States v. Wong, 884 F.2d 1537, 1546 (2d Cir.1989) (order denying rehearing) (contra).

Ordinarily, the law ministers to the vigilant, not to those who sleep upon their rights. In consequence, a litigant, through counsel, must usually stake out his opposition to a trial court's ruling on pain of forfeiting any right subsequently to complain. There are sound policy reasons for such a praxis: calling an incipient error to the judge's attention alerts both the court and opposing counsel, affording an opportunity to correct the problem before harm is done. The raise-or-waive rule also prevents litigants from having their cake and eating it too: making a strategic judgment and later, should the result prove infelicitous, assigning error; or simply "planting" error, and nurturing the seed as insurance if things go awry.

Notwithstanding the strength and salience of these policies, there are exceptions to the raise-or-waive rule. One such exception, now codified in Fed.R.Crim.P. 52(b), is for "plain error". The rubric has been much defined, mostly by way of uncontroversial descriptive generalities: plain errors are those that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936); or those of such magnitude that "the trial judge and prosecutor were derelict in countenancing" them, United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982); or...