U.S. v. Martinez-Torres, MARTINEZ-TORRE

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Selya, Circuit Judge, filed dissenting opinion which was joined by Levin H. Campbell; Before BREYER, Chief Judge, ALDRICH, CAMPBELL, TORRUELLA, SELYA and CYR; BAILEY ALDRICH; SELYA, Circuit Judge, with whom LEVIN H. CAMPBELL; LEVIN H. CAMPBELL, Circu
• Citation: 912 F.2d 1552
• Parties: 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. to 87-2008. . Reheard
• Docket Number: MARTINEZ-TORRES,D,Nos. 87-2006,MARTINEZ-TORRE
• Decision Date: 04 April 1990

Page 1552

912 F.2d 1552 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. 87-2006 to 87-2008. United States Court of Appeals,
First Circuit. Reheard April 4, 1990.
Decided Aug. 20, 1990.

Selya, Circuit Judge, filed dissenting opinion which was joined by Levin H. Campbell, Circuit Judge.

Page 1553

Harry Anduze Montano, Hato Rey, P.R., for defendants, appellants.

J. Douglas Wilson, Atty., Dept. of Justice, Washington, D.C., with whom Daniel Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before BREYER, Chief Judge, ALDRICH, CAMPBELL, TORRUELLA, SELYA and CYR, Circuit Judges.

OPINION EN BANC

BAILEY ALDRICH, Senior Circuit Judge.

On May 26, 1987, defendants-appellants were convicted of various drug offenses. Pursuant to a Puerto Rico District Court local rule authorizing the procedure, the jury empaneling had been conducted by a magistrate. Questions not resolved by the magistrate were satisfactorily resolved by the judge in the lobby during a recess, the judge not appearing in court until the empaneling had been completed. Defendants voiced no objection. Their appeals were argued before a panel of this court on May 5, 1989. Again, no question was raised as to the empanelment--a full answer to the government's sometime suggestion that defendants had been holding back for a second go at the cake--but on June 12, 1989, a unanimous Court decided, in Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237, 104 L.Ed.2d 923, that magistrate empanelment was improper. Defendants promptly moved for a remand for vacation of their convictions. ¹ The panel affirmed the convictions, United States v. Lopez-Pena, 912 F.2d 1536 (1989), and denied the motions to remand, 912 F.2d 1542 (1989) (2-1). Three of the six defendants petitioned for en banc review of the denial of the remand, which we granted. ² We now reverse their convictions, and remand for a new trial.

The basis of the panel decision was that, although Gomez was retroactive as to all cases that were pending on direct review, a point the government now concedes, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), magistrate empanelment, though now seen to be an error, was not of such consequence as to be plain error, and therefor was not to be considered

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in the absence of a contemporary objection. In addition, the panel ruled that the defendants were to be faulted, and that even plain error was to be disregarded as a matter of judicial discretion, because objecting was not "futile" where there was no "solid wall" of authority establishing its uselessness, and the district court should have been afforded the opportunity to correct its error. E.g., United States v. Griffin, 818 F.2d 97 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987). The government now advances both propositions. We consider the latter first, but start with chronology.

As the Gomez Court recited in its opinion, over the years Congress has extended authorization to magistrates for the avowed purpose of relieving district judges, in whole or in part, of some of their many duties. Encouraged by the favorable reception this received from the Court, Mathews v. Weber, 423 U.S. 261, 267-68, 96 S.Ct. 549, 552-53, 46 L.Ed.2d 483 (1976), many district courts adopted local rules passing substantial duties, preliminarily, or finally, to their magistrates. In Puerto Rico it was provided that a magistrate "is authorized to [c]onduct voir dire and select petit juries for the court in civil and criminal cases." D.P.R.R. 506.6. Similar rules were adopted in Rhode Island and New Hampshire, and, we are told, in more than half of the districts, nationwide. Quite evidently these rules were thought authorized. Prior to defendants' trial, in addition to our own case of United States v. Rivera-Sola, 713 F.2d 866 (1st Cir.1983), we find three reported cases of magistrate empanelment under the present statute. United States v. DeFiore, 720 F.2d 757 (2d Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1684, 80 L.Ed.2d 158 (1984); United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986); United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985). See, also, a case even prior thereto, Haith v. United States, 342 F.2d 158 (3d Cir.1965). In none did the defendant succeed. In some instances, the defendant failed outright; in others, on the ground that he had not objected below.

In Rivera-Sola we held that where defendant had failed to object below magistrate empanelment was not plain error to be considered on appeal. Fed.R.Crim.P. 52(b). At the same time, in an extended discussion, we voiced unreserved approval of the practice. Saying that it "requires comment," we quoted Congressional history favoring delegating powers to magistrates; noted the Court's general approval of delegation in Mathews v. Weber, 423 U.S. at 267-68, 96 S.Ct. at 552-53; and cited specific approvals of this practice by others. We concluded, "Presiding at the selection of a jury is a recognized 'additional duty' of a magistrate." Our final remark was, "We end with a general observation. We think that a magistrate can effectively conduct the voir dire and preside at the selection of juries in civil and criminal cases." Rivera-Sola, 713 F.2d at 872-74.

Though dictum, this endorsement was especially significant in that not only was it unnecessarily volunteered, but we had recently been advised not to limit ourselves to plain error rulings in cases of improper district court practices of broad consequence, but to exercise our supervisory powers, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 2754, 69 L.Ed.2d 616 (1981), and we especially noted that the Puerto Rico magistrate empaneling was "a regular practice." In sum, this was a clear endorsement, and not a passing observation leaving defendants with a reasonable hope that they might persuade the Puerto Rico court to jettison its time-saving rule. Even had the panel been correct in defining futility as requiring a "solid wall," ³ we see no porosity here, not only because of the clear Rivera-Sola language, but because of the nationwide practice nowhere condemned. The panel's ruling favors only obnoxiously

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belligerent counsel who, in spite of history, or ignorant thereof, object to everything as a matter of principle, or counsel who are unduly concerned with contentious clients. Cf. United States v. Scott, 425 F.2d 55, 58 (9th Cir.1970). We think defendants' failure to object here entirely excusable.

It does not follow that defendants are in as favorable a position as if objection had been made below. Even if counsel is totally reasonable in not objecting, we do not, on appeal, consider rights not originally sought unless they are of great importance; it is not enough that the error was not harmless. However, although a test that is sometimes applied is whether, but for the error, the result would probably have been different, e.g., United States v. Williams, 809 F.2d 75, 82 (1st Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1959, 95 L.Ed.2d 531, 481 U.S. 1072, 107 S.Ct. 2469, 95 L.Ed.2d 877, 482 U.S. 906, 107 S.Ct. 2484, 96 L.Ed.2d 377 (1987), the question is not so limited. See, e.g., United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936) ("seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings"); United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) ("undermine[s] the fundamental fairness of the trial"); United States v. Griffin, 818 F.2d at 100 ("seriously affect the fundamental fairness and basic integrity of the proceedings"). While these quoted statements are generalities, they would seem clearly to describe the difference between a magistrate empowered by statute to preside in a misdemeanor trial with the defendant's written consent, 18 U.S.C. Sec. 3401(b), and a magistrate, who, with no ostensible powers, presides in a felony trial without even informed oral consent. Such a magistrate rises no higher than a man or woman taken off the street. The dissent's subjective approach, noting that the magistrate apparently did well, seems particularly difficult to reconcile with Gomez's forceful language.

It is true that the Gomez Court noted that the defendant had objected below--thereby obviating the Court's need to consider arguments for penalizing him for the tardiness of his claim--but the fact that it was deciding only such a case does not detract from its language.

[V]oir dire [is] "a necessary part of trial by jury." Jury selection is the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice ... or predisposition about defendant's culpability....

. . . . .

Far from an administrative impanelment process, voir dire represents jurors' first introduction to the substantive factual and legal issues in a case. To detect prejudices, the examiner--often, in the federal system, the court--must elicit from prospective jurors candid answers about intimate details of their lives. The court further must scrutinize not only spoken words but also gestures and attitudes of all participants to ensure the jury's impartiality. But only words can be preserved for review; no transcript can recapture the atmosphere of the voir dire, which may persist throughout the trial.

Gomez, 109 S.Ct. at 2246-47 (citations omitted; final emphasis supplied). The Court concluded with the statement that "basic is a defendant's right to have all critical stages of a criminal trial...