USA v. Gomez Lepe
| Citation | 207 F.3d 623 |
| Decision Date | 07 December 1999 |
| Docket Number | GOMEZ-LEP,OPINION,No. 99-30031,99-30031 |
| Parties | (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ISIDRODefendant-Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Richard A. Smith, Smith Law Firm, Yakima, Washington, for the appellant.
Jane Kirk, Assistant United States Attorney, Yakima, Washington, for the appellee.
Appeal from the United States District Court for the Eastern District of Washington; Wm. Fremming Nielsen, District Judge, Presiding. D.C. No. CR-98-02036-WFN
Before: Thomas M. Reavley,1 Stephen Reinhardt, and M. Margaret McKeown, Circuit Judges.
Isidro Gomez-Lepe was convicted of conspiracy to distribute a controlled substance, 21 U.S.C. S 846, and possession with intent to distribute a controlled substance and/or aiding and abetting, 21 U.S.C. S 841(a)(1); 18 U.S.C.S 2. On appeal, he maintains that the magistrate judge's presiding over a jury poll that called into question jury unanimity exceeded the judge's statutory authority under the Federal Magistrates Act (the "Act"), 28 U.S.C. S 636. He also argues that the polling process violated Article III of the Constitution and resulted in a verdict that was not unanimous.2 The district court, finding that the magistrate did not exceed his authority, denied Gomez-Lepe's motion for a new trial. We disagree. Under the circumstances of this case, affirmative consent was required for the magistrate judge to proceed and thus he exceeded his authority under the "additional duties" clause of the Act. 28 U.S.C. S 636(b)(3). Accordingly, we reverse and remand for a new trial. In light of this holding, we need not reach the constitutional issue or the claim of jury coercion.
Gomez-Lepe was arrested during a cocaine buy-and-bust. He was tried and found guilty by a jury in Yakima, Washington, with a district judge from Spokane, Washington presiding. After a two day trial, the jury returned the next day for deliberations. At the conclusion of their deliberations, the magistrate judge informed the jurors that the district judge had returned to Spokane and had asked him to receive the verdict. The parties apparently had no prior notice of the district judge's unavailability, nor does the record reflect consent by either party to the procedure. After the clerk read the verdict, the magistrate judge confirmed the verdict with the foreperson and then with the entire jury collectively:
According to defense counsel, at least two jurors were visibly upset, and defense counsel requested the court to poll the jury individually. The first six members of the jury acknowledged the recorded verdict. When the magistrate judge reached Juror No. 8,3 Rhonda Connell, the following exchange occurred:
At this point, the magistrate judge polled the remaining five members of the jury, who confirmed their verdict, and then returned to Ms. Connell who once again stated "I don't know what to say":
Defense counsel then requested that the magistrate judge rephrase the question because Ms. Connell appeared troubled. The magistrate judge returned once more to Ms. Connell:
Gomez-Lepe subsequently moved for a new trial on grounds that the magistrate judge exceeded his constitutional and statutory authority in undertaking the questioning and that the verdict was not unanimous. The district court denied the motion based on its finding that the magistrate judge was within his statutory authority to conduct the poll and that the juror's response, although perhaps indicative of emotion or confusion, did not suggest lack of unanimity.
The issue before us is one of first impression: whether, in the absence of the defendant's consent, the magistrate judge's presiding over a jury poll in a felony trial when a juror's response calls into question the unanimity of the jury falls within the "additional duties" delegated to a magistrate under S 636(b)(3) of the Act.
Consideration of the scope of a magistrate judge's authority in felony matters is not a new subject. As we held in United States v. Foster, 57 F.3d 727, 732 (9th Cir. 1995), rev'd on other grounds, 133 F.3d 704 (1998) (en banc), vacated as to that ground, 119 S. Ct. 32 (1998):
While it is somewhat troubling that the trial judge assigned the task of accepting the verdict to a magis trate judge without prior notice to the parties, the magistrate judge in this case did nothing more than accept and file the verdict. . . . [A]cceptance and fil ing of a verdict constitute ministerial tasks which have no effect on the outcome of the case. We express no opinion, however, on whether the parties' consent might be required if a magistrate judge is called upon to take any additional action (such as answering a jury question) while presiding over jury deliberations.
We now address the question left unanswered in Foster, namely, whether the "additional action" taken here, beyond the "acceptance and filing of a verdict," is consistent with the magistrate judge's statutory authority. We review de novo the delegation of authority to a magistrate judge. United States v. Carr, 18 F.3d 738, 740 (9th Cir. 1994).
Central to our analysis is an understanding of the Act and the cases interpreting it. As the Supreme Court has explained:
Since its enactment in 1968, the Federal Magistrates Act has permitted district courts to assign magis trates certain described powers and duties, as well as "such additional duties as are not inconsistent with the Constitution and laws of the United States."
Gomez v. United States, 490 U.S. 858, 859-60 (1989). The Act has been amended on several occasions, including significant amendments in 1976, to broaden the scope of power that magistrate judges may exercise. See id. at 865-71 (outlining evolution of Act). The Act now gives magistrate judges "described power and duties" in the following areas: civil trials with the parties' consent; misdemeanor trials and sentencing with the defendant's consent; certain civil and criminal pretrial matters; and service as a special master. 28 U.S.C. S 636(a), (b)(1)-(2), (c).
In addition to these enumerated duties, the Act contains a separate catch-all provision providing that "[a ] magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States. " 28 U.S.C. S 636(b)(3). Although acceptance of jury verdicts is not a specifically described duty, the legislative history lists accepting "returns of jury verdicts" as an example of an additional duty.4 See H.R. REP. NO. 94-1609 (1976),reprinted in 1976 U.S.C.C.A.N. 6162, 6172 ( ). The legislative history does not, however, discuss the more significant oversight of jury deliberations that occurred here. Thus, this case turns on whether the circumstances here fit within the "additional duties" provision of the Act.
Since the 1976 amendments, the Supreme Court on two occasions has considered in detail the scope of magistrate judge authority under the "additional duties" clause. See Gomez, 490 U.S. 858; Peretz v. United States , 501 U.S. 923 (1991). Both Gomez and Peretz involved the authority of a magistrate judge to preside over jury selection and, although not directly controlling, are highly instructive to our inquiry. In Gomez, the magistrate judge conducted voir dire over the objection of defense counsel. 490 U.S. at 860. The Supreme Court cautioned that although S 636(b)(3)'s grant of authority can be read broadly,
[w]hen a statute creates an office to which it assigns specific duties, those duties outline the attributes of the office. Any additional duties performed pursuant to a general authorization in the statute reasonably should bear some relation to the specified duties.
Id. at 864. The Court held that the magistrate judge's selection of a jury in a felony trial exceeded the authority delegated by S 636(b)(3).
Two years later, the Court revisited this issue in Peretz, expressing a willingness to read the clause more...
To continue reading
Request your trial
-
U.S. v. Gamba
...to jury selection in a felony trial could be performed only with the consent of the litigants"); see also United States v. Gomez-Lepe, 207 F.3d 623, 629 (9th Cir.2000) (holding that conducting a jury poll that calls into question the jury's unanimity is a critical stage of a criminal procee......
-
People v. Auman
...and need not use particular words in polling a jury. United States v. Jefferson, 258 F.3d 405 (5th Cir.2001); United States v. Gomez-Lepe, 207 F.3d 623 (9th Cir.2000). "[J]urors [need only] be placed in a situation (i.e., polling in open court) that allows them to be free of jury-room coerc......
-
Wang v. Masaitis
...submit a R & R because he did not explicitly consent to his habeas petition being handled by a magistrate. Under United States v. Gomez-Lepe, 207 F.3d 623, 628-29 (9th Cir.2000), consent is the most important factor in determining what the catch-all provision encompasses, when the matter at......
-
U.S. v. Reyna-Tapia
...the Rule 11(f) duty to the magistrate judge. We review de novo the delegation of authority to a magistrate judge. United States v. Gomez-Lepe, 207 F.3d 623, 627 (9th Cir. 2000). Whether magistrates are permitted to conduct a Rule 11 plea colloquy in a felony case pursuant to a defendant's c......