U.S. v. Saunders

• Decision Date: 02 February 1981
• Docket Number: No. 79-1699,79-1699
• Citation: 641 F.2d 659
• Parties: 7 Fed. R. Evid. Serv. 128 UNITED STATES of America, Plaintiff/Appellee, v. Phillips Lee SAUNDERS, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 659

641 F.2d 659

7 Fed. R. Evid. Serv. 128

UNITED STATES of America, Plaintiff/Appellee, v. Phillips Lee SAUNDERS, Defendant/Appellant.

No. 79-1699.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 13, 1980.

Decided Oct. 2, 1980.

As Amended Feb. 2, 1981.

Before TRASK, ANDERSON and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

Phillips Lee Saunders appeals his convictions for violation of 18 U.S.C. § 2423 (1976) (amended 1978), prohibiting transportation of a minor in interstate commerce for purposes of prostitution, and for violation of 18 U.S.C. § 2421 et seq. (1976) (Mann Act), prohibiting transportation of women in interstate commerce for purposes of prostitution. He contends (1) that the jury was coerced, (2) that the magistrate's decision on the timing of jury deliberations amounted to a supplemental jury instruction, (3) that the prosecutor improperly referred to his personal belief, (4) that he was prejudiced by pre- and post-indictment delay, (5) that the Mann Act count of the indictment was duplicitous, and (6) that evidence of his subsequent illegal acts was improperly admitted. We affirm.

In the summer of 1975, two young women ages 14 and 19 worked as prostitutes for Saunders in Seattle, Washington. In September 1975, they went at Saunders' direction to Portland, Oregon, where Saunders joined them. The younger woman attempted to work there as a street prostitute but was picked up by police as a runaway juvenile and returned to Seattle. Saunders and the older woman returned to Seattle as well, and the younger woman ran away from home again and joined them. Saunders then announced to the older woman that they would travel to Jacksonville, Florida, where she would work as a prostitute. In September or October 1975, the three of them traveled to Portland by train. There Saunders acquired a car in which they traveled to Florida. En route they stopped in cities in Idaho, Utah, Arizona, New Mexico, Oklahoma, and Georgia, reaching Florida in November. In several of the cities, including Tampa and Jacksonville, Florida, both young women worked as prostitutes and gave all their earnings to Saunders.

Saunders was indicted in October 1978. The second count of the indictment charged one violation of the Mann Act for the entire trip from Seattle to Florida. Saunders' trial was delayed until August 1979, because until then he was in the custody of Canadian authorities. The crimes for which he was indicted were not extraditable crimes under the extradition treaty between the United States and Canada. Saunders' motion to dismiss the indictment due to delay was denied by the district court.

The jury in Saunders' trial began deliberating on a Friday at about 4:30 p. m. Shortly before 6:00 p. m., the full-time magistrate who had been left in charge of the proceedings sent for the jury. When he learned that a verdict was not imminent, he asked the jury to reconvene on Monday morning as the trial judge had instructed him to do. Three jurors informed the magistrate that they could not be present on Monday. No jurors objected to staying later on Friday or to returning on Saturday morning. Although the magistrate was unable to contact the trial judge, he instructed the jury to continue deliberations that evening. Since it was too late to make a dinner reservation, the magistrate arranged for sandwiches and drinks to be brought to them. He instructed the jury not to hurry their deliberations. Half an hour later, the jury returned a guilty verdict. Saunders moved for a mistrial both before the jury was sent back out and after the verdict was received. Both motions were denied by the magistrate.

First, Saunders contends that his Sixth Amendment right to trial by an impartial jury was violated because the jury was coerced. He cites cases which hold that a court may not imply that the jury must reach a verdict. See, e. g., United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); United States v. Seawell, 550 F.2d 1159 (9th Cir.), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 666 (1978). Saunders argues that the magistrate's direction to continue deliberations, on a hot Friday night and without a proper dinner, indicated that the court wanted the jury to reach a verdict that evening. This argument is without merit. When the magistrate was informed by the foreman and two other jurors that they would be unable to reconvene on Monday morning, he simply determined to have them continue deliberations into the evening and, if necessary, to reconvene on Saturday morning. No jurors objected to this schedule. The magistrate specifically instructed the jury not to hurry its deliberations. In these circumstances the jury was not coerced and Saunders was accorded his Sixth Amendment right to trial by an impartial jury.

Second, Saunders contends that, even if the continuation of jury deliberations on Friday night did not violate his Sixth Amendment rights, the magistrate exceeded his authority in directing the jury to continue deliberations and in rejecting Saunders' objections to the procedure. Saunders does not argue that the trial judge's delegation of authority did not purport to cover the magistrate's actions. Nor does he assert that the delegation was contrary to statute or rule. See 28 U.S.C. § 636(b)(3), (4) (1976); W.D.Wash.Mag.R. 9(e); cf. Wingo v. Wedding, 418 U.S. 461, 469-74, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974) (holding that habeas corpus statute precludes district court's assignment of evidentiary hearings in habeas cases). Instead, Saunders relies solely on a constitutional separation-of-powers argument.

Article III requires that Congress give federal judges lifetime tenure and undiminishable salaries. These guarantees are designed to promote the independence of the federal judiciary as a separate and coequal branch of government. Full-time magistrates serve for eight-year terms, 28 U.S.C. § 631(e) (1976), and may be removed for "incompetency, misconduct, neglect of duty, or physical or mental disability," 28 U.S.C. § 631(h) (1976) (redesignated § 636(i) 1979). Although the Magistrates Act guarantees that a magistrate's salary shall not be diminished during his term of office, 28 U.S.C. § 634(b) (1976), this protection is only statutory and may be repealed by Congress. The Magistrates Act delegates appointment and removal powers to the federal judiciary. 28 U.S.C. § 631(a), (h) (1976) (subsection (a) amended 1979; subsection (h) redesignated subsection (i) 1979). In view of these factors, we recognize that magistrates are not Article III judges. Nonetheless, Congress has delegated certain judge-like functions to magistrates.

Since American Insurance Co. v. 356 Bales of Cotton (Canter), 26 U.S. (1 Pet.) 511, 546, 7 L.Ed. 242 (1828), the Supreme Court has recognized that Congress may establish "legislative courts" whose judges do not enjoy Article III guarantees. Such courts have been upheld when their jurisdiction is limited to the territories, Canter, 26 U.S. (1 Pet.) at 546, to local matters arising in the District of Columbia, Palmore v. United States, 411 U.S. 389, 390-91, 409-10, 93 S.Ct. 1670, 1672-73, 1682-83, 36 L.Ed.2d 342 (1973), and to limited subject matter, see Gosa v. Mayden, 413 U.S. 665, 686, 93 S.Ct. 2926, 2939, 37 L.Ed.2d 873 (1973) (Court of Military Appeals as a legislative court). The Court has indicated, however, that "inherently judicial" tasks must be performed by Article III judges. See, e. g., Glidden Co. v. Zdanok, 370 U.S. 530, 549, 82 S.Ct. 1459, 1472, 8 L.Ed.2d 671 (1962); Ex parte Bakelite Corp., 279 U.S. 438, 458, 49 S.Ct. 411, 458, 73 L.Ed. 789 (1929).

In United States v. De la Torre, 605 F.2d 154 (5th Cir. 1979), a magistrate who had been authorized to receive the jury verdict refused the defendant's request to have certain instructions re-read to the jury. The Fifth Circuit held this to be reversible error, stating that "(i)t is the defendant's right to have an Article III judge rule on his counsel's objections and requests for instructions to the jury ...." Id. at 155-56. Saunders argues that De la Torre requires that an Article III judge rule upon his objections to jury scheduling.

We find it unnecessary to decide whether the magistrate here performed an inherently judicial function. Despite the requirement that such functions be performed by Article III judges, the Supreme Court has recently upheld the constitutionality of certain judicial actions by magistrates. Under the "para-judge" rationale, the Magistrates Act comports with Article III because it subjects magistrates' rulings to de novo determination by a federal district judge. See United States v. Raddatz, 447 U.S. 667, 681 - 684, 100 S.Ct. 2406, 2415-16, 65 L.Ed.2d 424 (1980) (magistrate conducted suppression hearing); Mathews v. Weber, 423 U.S. 261, 266-72, 96 S.Ct. 549 (1976) (social security case referred to magistrate for preliminary findings and recommendation). Thus, the Supreme Court has allowed magistrates to perform "inherently judicial" tasks when under the supervision of an Article III judge.

Because no district court review or supervision of the De la Torre magistrate's actions had been established either by statute or by rule ¹ the Fifth Circuit did not discuss the "para-judge" rationale. Here, however, Magistrates' Rule 12 of the Western District of Washington allows defendants to bring objections to a magistrate's action before the judge. ² We recognize that both De la Torre and this case present a situation where it can be argued that practical considerations render the district judge's supervision ineffective and therefore the magistrate's action may not be justified under the "para-judge" rationale. We reject this argument. If the magistrate had taken any action disagreeable to the trial judge, it would have been the judge's duty to correct it by holding a new trial. To suppose that the trial judge would be dissuaded...