# United States v. Mang Sun Wong, Chi Hong Lam and Hang Fang Ko, Mang Sun Wong

> Court of Appeals for the Second Circuit · September 5, 1989 · 884 F.2d 1537

URL: https://www.frixlaw.com/law-library/cases/9479491

## Case

- **Full name:** UNITED STATES of America, Appellee, v. MANG SUN WONG, Chi Hong Lam and Hang Fang Ko, Defendants, Mang Sun Wong, Defendant-Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** September 5, 1989
- **Citations:** 884 F.2d 1537
- **Precedential status:** Published
- **Opinion:** Dissent by Altimari
- **Judges:** Altimari, Mahoney, Korman
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479491

## How later opinions describe it (automated extraction)

- recognizing a consent exception to Gomez

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479491. Public record. Not legal advice.