evidence that defendant “remain[ed] at the periphery of the transaction” and received large sum of cash from co-defendant without instructions for disposal, coupled with defense that he lacked knowledge that a crime was being committed and had no part in it, justified charge
How later courts described this case
- evidence that defendant “remain[ed] at the periphery of the transaction” and received large sum of cash from co-defendant without instructions for disposal, coupled with defense that he lacked knowledge that a crime was being committed and had no part in it, justified charge
- indicating that we are not bound to follow decisions of another circuit
- recognizing a consent exception to Gomez
Written by the judges who cited it.
The opinion
ALTIMARI, Circuit Judge,
dissenting from the denial of rehearing.
I respectfully dissent.
Although the question presented to the Supreme Court in Gomez v. United States was whether nonconsensual jury selection by a magistrate in a felony trial is permissible under the Federal Magistrates Act, the task to which the Court set itself was to “consider the office of magistrate as it pertains to seating a jury in a felony case.” — U.S. -, -, 109 S.Ct. 2237, 2242 , 104 L.Ed.2d 923 (1989). Thus, simply stated, the focus of the Court was on the powers of a magistrate. The majority holds that reversal is not required in the instant case because Mang Sun Wong consented to jury selection by a magistrate. In view of the principles expressed in Gomez, I believe that a magistrate has no power to seat a jury in a felony case with or without the defendant’s consent.
Congress amended the Federal Magistrates Act to “ ‘clarify and further define the additional duties which may be assigned to a United States Magistrate.’ ” Gomez, — U.S. at -, 109 S.Ct. at 2243 , (quoting H.R.Rep. No. 94-1609, p. 2 (1976) U.S.Code Cong. & Admin.News 1976, pp. 6162, 6162). Surely there is a distinction between “additional duties” and “additional powers.” Gomez instructs that neither the additional duties clause of the statute nor Congressional intent invests a magistrate with the power to select a jury in a felony trial. See id. — U.S. at -, - n. 25, 109 S.Ct. at 2244 , 2246 n. 25 (“the Federal Magistrates Act does not allow the delegation of jury selection to magistrates”) (emphasis added). Jurisdiction to preside at felony trials remains the province of district judges.
The majority’s analysis, whether denominated plain or harmless error, is simply inappropriate here. I am persuaded by Gomez to look no further than to the powers of the magistrate’s office. Because I believe the consent of the defendant cannot enlarge those powers of office not granted by the Federal Magistrates Act, in my view, defendant’s conviction must be reversed.