Government of the Virgin Islands v. Raymond Williams

MANSMANN, Circuit Judge,

Concurring.

While I concur in the result reached by the panel majority affirming Williams’ conviction, I write separately because I do not rely on the reasoning of the majority in reaching this result.

The ultimate disposition of this case turns upon the reach of the Supreme Court’s ruling in Gomez v. United States, — U.S. -, 109 S.Ct. 2237 , 104 L.Ed.2d 923 (1989). The majority reads Gomez as having no application to those cases in which a defendant consents to a magistrate presiding over voir dire in his felony trial. I do not believe that Gomez can be so narrowly read, and, therefore, find it necessary to address issues not reached by the majority.

As the majority recognizes, the question raised in Gomez was, at base, one of jurisdiction: Under the terms of the Federal Magistrates Act, what is the appropriate role of the magistrate in selecting a jury in a felony matter? The Court in Gomez examined 28 U.S.C. § 636 (b) (1982), the so-called “additional duties" clause of the Federal Magistrates Act (“The Act”), and concluded that this section does not authorize federal magistrates to conduct jury selection and voir dire in felony trials. 1 Jury selection was not within the “range of duties’ that Congress intended magistrates to perform.” Id., 109 S.Ct. at 2242 (quoting Mathews v. Weber, 423 U.S. 261, 270 , 96 S.Ct. 549, 554 , 46 L.Ed.2d 483 (1976)).

In reaching this result, the Court relied on three factors. First, it emphasized that by the terms of the Act Congress had specifically authorized magistrates “to conduct trials of civil matters and of minor criminal cases” and concluded that this “carefully defined grant of authority” “should be construed as an implicit withholding of authority to preside at a felony trial.” 109 S.Ct. at 2245 . Second, the Court discussed in detail the place of jury selection in the context of the criminal trial. It noted that jury selection is a “critical stage of the criminal proceeding,” with voir *313 dire 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.” Id. at 2246 (citing Lewis v. United States, 146 U.S. 370, 374 , 13 S.Ct. 136, 137-38 , 36 L.Ed. 1011 (1892), and Rosales-Lopez v. United States, 451 U.S. 182, 188 , 101 S.Ct. 1629, 1634 , 68 L.Ed.2d 22 (1981)). Finally, the Court addressed the role of the individual who conducts voir dire in evaluating “not only spoken words but also [the] gestures and attitudes of all participants to ensure the jury’s [impartiality],” and expressed “serious doubts that a district judge could review the[se] function[s] meaningfully.” 109 S.Ct. at 2247 . In light of all of these factors, the Court concluded that magistrates have no power to preside over jury selection in felony cases.

The majority recognizes that Gomez rests on jurisdictional grounds but seeks to confine the Court’s holding to those cases, like Gomez , where the defendant affirmatively objected to the magistrate’s presence. Under the reasoning of the majority, where a defendant objects to the presence of a magistrate, § 636(b) of the Act withholds authority from the magistrate to preside. Yet, where a defendant fails to object or affirmatively consents to the presence of the magistrate, delegation of the jury selection “plainly qualifies as an ‘additional duty’ for purposes of section 636(b)(3).” Majority Opinion at 311. I do not believe that this conclusion is “plain” or that consent can confer jurisdiction where the Act withholds it. The reasoning of the Gomez opinion fails to support the majority’s conclusion.

I believe that the better approach is that adopted by the Court of Appeals for the Ninth Circuit in United States v. France, 886 F.2d 223 (9th Cir.1989), and of the dissent in United States v. Mang Sun Wong, 884 F.2d 1537 (2d Cir.1989). See also United States v. Rubio, 722 F.Supp. 77 (D.Del.1989). While the majority approach is convenient, disposing of a number of cases pending on direct appeal at the time of the Gomez decision, in order to be true to the holding of Gomez , I believe that analysis of these cases cannot begin and end at the point of consent.

Having reached the conclusion that consent is irrelevant for jurisdictional purposes and that Gomez mandates exclusion of the magistrate from jury selection in all felony cases, I would next examine the issue of retroactivity. In brief, I believe that Gomez should be accorded retroactive effect in all cases pending on direct appeal. See United States v. France, supra, and United States v. Lopez-Pena, 890 F.2d 490 (1st Cir.1989). 2

Once retroactivity is established, the inquiry becomes whether Gomez requires reversal per se or whether pending cases may be evaluated under the plain error doctrine. It is under the plain error doctrine that a defendant’s consent becomes relevant. The Court of Appeals for the Ninth Circuit in United States v. France, supra, concluded that the Supreme Court in Gomez , by precluding harmless error analysis, had articulated a per se rule of reversal applicable to all cases not final when Gomez was decided. This per se rule would apply regardless of the defendant’s consent.

The Court of Appeals for the First Circuit in United States v. Lopez-Pena, supra, however, rejected any notion of a per se rule and applied a plain error analysis. On the facts before it, the court found no plain error:

The magistrate’s preliminary comments to the jury were standard, and defendants voiced no objection (then or now) to any portion of what was said — or not said — in that matter. Questions were addressed to the venire from a prepared form. Once the jury was chosen, the judge — not the magistrate — gave the start-of-trial instructions. From aught that appears, the empanelment was scru *314 pulously fair and the jury was not tainted in any way.

Id. at 496 . The court summarized its conclusions regarding the application of Gomez in this way:

[W]e hold that the Gomez doctrine applies retroactively to nonfinal convictions, that is, to felony cases pending on direct appeal. But in this case the claimed error went unremarked.... Most especially, neither the integrity of the trial nor the accuracy of the guilty verdict has been impeached. Inasmuch as appellants have been unable to show prejudice flowing from the magistrate’s selection of the jury, their motions to remand must be denied.

Id. at 498. A plain error analysis in the case now before us would yield the same result. All that remains, in my view, is to determine whether, consistent with our own precedent, we may apply the plain error analysis to those pending cases implicating Gomez .

Our decision in United States v. Thame, 846 F.2d 200 (3d Cir.1988), is dispositive. In Thame , we specifically addressed the question of whether the Supreme Court’s conclusion that a particular constitutional error can never be harmless precludes consideration of a case involving such an error under the “plain error” standard of review. We concluded that the plain error analysis is not precluded. We first drew a distinction between plain and harmless error:

The test for harmless error is not the same as the test for plain error.... The harmless error doctrine allows convictions to stand despite properly preserved claims of constitutional error in the exceptional circumstance where the reviewing court can conclude that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 [ 87 S.Ct. 824 , 17 L.Ed.2d 705 ] (1967). The plain error doctrine allows convictions to be reversed even in the absence of properly preserved claims of error where the reviewing court can conclude that fundamental fairness so requires.

Id. at 207. Then, most importantly for our purposes, we made the following statement which suggests how this case might be analyzed in light of Gomez :

The constitutional nature of the error certainly makes it easier to conclude that fundamental fairness requires reversal. Nevertheless, concluding that any time a constitutional claim is at issue the Chapman standard applies to the plain error determination collapses the plain error and harmless error doctrines into one and “threatens to render meaningless the contemporaneous-objection requirement in the context of constitutional error.” United States v. Robinson, [485] U.S. [35], [36], 108 S.Ct. 864, 871 , 99 L.Ed.2d 23 (1988) (Blackmun, J., concurring and dissenting).... [Although we do not believe that the error was sufficiently minor to be harmless beyond a reasonable doubt, we also do not believe that it was sufficiently minor to be harmless beyond a reasonable doubt, we also do not believe that it was sufficiently major that a miscarriage of justice will result if the conviction is not reversed.

Id.

Thus, simply because the Supreme Court concluded that a Gomez error may never be harmless, it does not follow that every case involving jury selection by a magistrate where there was no objection must be reversed.

In our Circuit the role of a court undertaking a plain error analysis is:

[T]o look on a case-by-case basis to such factors as the obviousness of the error, the significance of the interest protected by the rule that was violated, the seriousness of the error in the particular case, and the reputation of judicial proceedings if the error stands uncorrected — all with an eye toward avoiding manifest injustice.

Id. at 205.

In the ease now under consideration, the error claimed was not obvious; prior to Gomez it was common practice for magistrates in the Virgin Islands and in many other jurisdictions to conduct voir dire in felony cases. (Indeed, as the majority points out, in the Virgin Islands defendants do not even have the benefit of Article III *315 judges presiding at trial since the judges sitting there are empowered under Article I.) Despite occasional challenges, the practice was upheld in the great majority of cases. While the interest protected by the rule (the right of a defendant to have voir dire conducted by a person with jurisdiction to preside) is important, there is not the slightest hint here that the defendant expressed discontent at having the magistrate preside or that any prejudice resulted. There has been no manifest injustice and the reputation of the judicial proceedings is intact.

For all of the foregoing reasons I concur in the result reached in this matter but believe that Gomez requires a different analysis than that undertaken by the majority.

. The Court did not consider whether Congress might constitutionally authorize magistrates to preside over voir dire. The opinion was limited to an examination of the Act.

. We have decided a number of cases discussing the retroactive effect of substantive rather than procedural rulings involving statutory interpretation. See, Diggs v. Owens, 833 F.2d 439 (3d Cir.1987), and United States v. Osser, 864 F.2d 1056 (3d Cir.1989). These cases, too, favor re-troactivity.