Petition — United States v. Raddatz

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No. %@ 9 .“ 8 JUL 3 1979

LMICHAEL RODAK, JR, CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

HERMAN RADDATZ

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

Department of Justice

Washington, D. C. 20530

INDEX

Page

LLL EL OORT 1

SS ST EEE ER 2

Neen a ecnensunnscnpsoene 2

Constitutional provision and statute involved.. 2

ES 4

Reasons for granting the petition .................... 10

RES EEE) SS SS A OO 20

SS NSS ES LE la

CSO 25a

NETS EES Oy 27a

EAS SS 29a

SEES NSE SES 33a

BIE RITE, ATE 35a

CITATIONS

Cases:

Barker v. Wingo, 407 U.S. 514 .............. 15

Califano v. Yamasaki, No. 77-1511 (June

SERIES SETS, Sa ns AR 16

Campbell v. United States District Court,

501 F. 2d 196, cert. denied, 419 U.S.

sea sacahlessteweciisconccaryes 12, 14, 19

Davis v. North Carolina, 384 U.S. 7387.... 18

Ellis v. Buchkoe, 491 F. 2d 716 -............... 14

Fleming v. Rhodes, 331 U.S. 100 ............ 11

Goldberg v. Kelly, 397 U.S. 254 _...0...... 15

Johnson v. New Jersey, 384 U.S. 719...... 16

Lego v. Twomey, 404 U.S. 477 .................- 15, 16

Cases—Continued Page

Linkletter v. Walker, 381 U.S. 618 .......... 16

Mackey v. Montrym, No. 77-69 (June 25,

1, MARISA He Se acrien Se, Sl twtew A ierOore ano era 15,17

Mathews v. Eldridge, 424 U.S. 319 ........ 14, 16

Mathews v. Weber, 423 U.S. 261 ............ 13

Mildner v. Gulotta, 405 F. Supp. 182, aff’d

SR Sy RES PIE Soshevsdnncnheitesnitanedilonemcbtces 14

McCray v. Illinois, 386 U.S. 300 ~............. 16

Noorlander v. Ciccone, 489 F. 2d 642.... 14

Palmore v. United States, 411 U.S. 389.... 12, 18

Parham v. J.L., No. 75-1690 (June 20,

I hres dt nainteedlscecnedvsnctasspdnpirihsasmacabionelestiin 15

Parnell v. Wainwright, 464 F. 2d 735...... 20

Schneckloth v. Bustamonte, 412 U.S. 218.. 18

TPO, Inc. v. McMillen, 460 F. 2d 348...... 14

United States v. Batchelder, No. 78-776

NIE Mls PEIEE eatcicaeieceascapcaensdabyindiedonenedes 9

United States v. Bergera, 512 F. 2d 391.. 14,19

United States v. Janis, 428 U.S. 433 -...... 15

United States v. Matlock, 415 U.S. 163.... 15-16

United States v. Whitmire, 595 F. 2d

RIE alas hhatuniccaccteasdlaeaidsecendenpadeeiioicoms 19

Universal Camera Corp. v. NLRB, 340

8 OE Sp RARE Bonin saee rae Revere Meawne” 16

White v. Estelle, 556 F. 2d 1866 .............. 12, 20

Wingo v. Wedding, 418 U.S. 461 -............ 13, 14

Constitution, statutes and rules:

United States Constitution:

eed 9,12, 13, 14

Fifth Amendment, Due _ Process

| SRRAORRERG EG iabeertae OP Aa 2,9, 10, 18, 14, 18

III

Constitution, statutes and

rules—Continued Page

Federal Magistrates Act, 28 U.S.C. 631

et seq.:

BO Gs PETE aerkd caren ccebakntn 9,11

Be Sen PER tic 2,8

28 U.S.C. 636(b) (1) (A) .................. 11

28 U.S.C. 636(b) (1) (B) .................... passim

pgp | Aer ae ene 4,8

Pe Wate ee CNUR) heck. 8

Be Re IE Pak tdachescotliscbsoncnstanrsouhioustancente 11

Be Pe NE hnstinnicapthihenicteteiietbnckn eh comme 16

Os Bek rts RROD cscieiiinrcsncnticnsenncveensinece 16

Local Magistrate Rule 1.101B(8), United

States District Court for the Northern

Pe NO eo 9

Miscellaneous:

1978 Annual Report of the Director of

the Administrative Office of the United

States Courts A-144 (Table M-4) -....... 17,18

122 Cong. Rec. H12219 (daily ed. Oct. 1,

PPE Fiikdese cciethrhe coisa apc esseettcnetrpuearteasnecn 12

H.R. 1046, 96th Cong., 1st Sess. (1979).. 18

H.R. Rep. No. 94-1609, 94th Cong., 2d

ME | ERRANDS CAN 7 SRE 12, 18, 19

Note, Masters and Magistrates in the

Federal Courts, 88 Harv. L. Rev. 779

INTIS sssseilicsplioticislinch Garis eaten ade cal ciniht i apne: 13

S. 237, 96th Cong., 1st Sess. (1979) ........ 18

S. Rep. No. 64-625, 94th Cong., 2d Sess.

OF Sete NOISE eee RCM RU ce pa 13,18

Iu the Supreny Court of the United States

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

HERMAN RADDATZ

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A,

infra, la-24a) is reported at 592 F.2d 976. The

memorandum orders of the district court (Apps. D

and E, infra, 29a-34a) are not reported.

(1)

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 25a-26a) was entered on February 6, 1979,

and a petition for rehearing was denied on May 4,

1979 (App. C, infra, 27a-28a).' On May 31, 1979,

Mr. Justice Stevens extended the time within which

to file a petition for a writ of certiorari to and in-

cluding July 3, 1979. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether 28 U.S.C. 636(b)(1)(B), which allows

a district court to decide a suppression motion based

on the record developed before a magistrate and the

magistrate’s proposed findings of fact and recom-

mendations, violates the Due Process Clause.

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

1. The Fifth Amendment to the United States

Constitution provides in pertinent part:

No person shall be * * * deprived of life,

liberty, or property, without due process of law

* * *

2. 28 U.S.C. 636(b)(1) provides in pertinent

part:

1The court of appeals issued a corrected copy of the order

denying rehearing on May 22, 1979.

ren ge FI

ONT ree

Notwithstanding any provision of law to the

contrary—

(A) a judge may designate a magistrate

to hear and determine any pretrial matter

pending before the court, except a motion

* * * to suppress evidence in a criminal

case * * *, A judge of the court may re-

consider any pretrial matter under this sub-

paragraph (A) where it has been shown

that the magistrate’s order is clearly erro-

neous or contrary to law.

(B) a judge may also designate a magis-

trate to conduct hearings, including eviden-

tiary hearings, and to submit to a judge

of the court proposed findings of fact and

recommendations for the disposition, by a

judge of the court, of any motion excepted

in subparagraph (A) * * *,

findings and recommendations under sub-

paragraph (B) with the court and a copy

shall forthwith be mailed to all parties.

Within ten days after being served with a copy,

any party may serve and file written objections

to such proposed findings and recommendations

as provided by rules of court. A judge of the

court shall make a de novo determination of

those portions of the report or specified proposed

findings or recommendations to which objection

is made. A judge of the court may accept, re-

ject, or modify, in whole or in part, the findings

or recommendations made by the magistrate.

The judge may also receive further evidence or

recommit the matter to the magistrate with in-

structions.

STATEMENT

Following a bench trial on a stipulated record in

the United States District Court for the Northern

District of Illinois, respondent, a previously convicted

felon, was convicted of unlawfully receiving a fire-

arm, in violation of 18 U.S.C. 922(h).? Respondent

was sentenced to five years’ imprisonment, all but six

months of which was suspended in favor of four and

a half years’ probation (App. A, infra, la n.1).

1. Prior to trial, respondent moved to suppress

several incriminating statements that he had made

to agents of the Bureau of Alcohol, Tobacco and

Firearms on the ground that the statements had

been induced by promises of immunity in return for

his cooperation. Over respondent’s objection, the dis-

trict court referred the suppression motion to a

magistrate for an evidentiary hearing in accordance

with the Federal Magistrates Act, 28 U.S.C. 636(b)

(1) (B) (App. A, infra, 4a).

The evidence adduced at the suppression hearing

showed that on August 8, 1976, two Chicago police

officers arrested respondent, who was holding a pistol,

for unlawful use of a weapon. Lying near respond-

2 The parties agreed to allow the court to try respondent

on tiie basis of the transcript of the suppression hearing, the

statements of three witnesses, and the stipulations that re-

spondent had previously been convicted of eight felonies and

that the firearm in question had been manufactured in Florida

(App. F, infra, 35a-38a).

wre,

ent at the time of the arrest was another man, Jimmy

Batson, who was bleeding from the left side of his

head. Although Batson claimed that he had injured

himself in a fall to the curb, respondent, after being

informed of his constitutional rights, admitted that

he had been fighting with Batson over a family

matter and that he had brought a gun with him to

protect himself in case any of Batson’s friends tried

to intercede on Batson’s behalf. In October 1976, the

State of Illinois filed a charge against respondent

arising out of the August 8 incident (Apps. A and

F, infra, 2a-3a, 35a-36a; Tr. 3-21, 28-29, 155-157,

249).

One month later, on November 19, 1976, Agents

Paul Russell and Richard McCulloch of the Bureau

of Alcohol, Tobacco and Firearms went to respond-

ent’s home to interview him about the pistol that

was in his possession at the time of his arrest. The

agents knew that respondent had previously been

convicted of a felony. After informing respondent

of his Miranda rights and ascertaining that he un-

derstood those rights, the agents told respondent that

the gun in question had at one time been owned by

a West Virginia man who had been slain in an un-

solved homicide. The agents sought to establish the

gun’s chain of possession since that time.* Respond-

ent remarked that he had seized the pistol from Bat-

son during the altercation on August 8 and that he

3 In addition, one of the officers testified that they also were

“trying to determine venue; where [respondent] had come

into receipt of the firearm * * *” (Tr. 225).

did not know how Batson had acquired the weapon

(Apps. A and F, infra, 3a, 36a; Tr. 33-35, 38-42,

106-107, 160-169, 174-178, 196, 225).

The agents testified that during the November 19

meeting they told petitioner that if he was able to

find out where Batson had obtained the pistol, they

would inform the United States Attorney of respond-

ent’s cooperation in the event he was subsequently

prosecuted. Agent Russell left his name and tele-

phone number with respondent in case respondent de-

cided to cooperate. The agents denied that they ever

told respondent that he would not be prosecuted if

he became an informant and aided their investiga-

tion (App. A, infra, 6a-7a; Tr. 42, 45, 161, 165,

187-188, 221). Respondent, on the other hand, con-

tended at the suppression hearing that the agents

had promised that he would not be prosecuted if he

cooperated with them and that he would face a long

jail sentence if he refused to cooperate (Tr. 103-108).

On January 12, 1977, respondent called the agents

and requested a meeting. The agents picked respond-

ent up at his home and drove him back to their office.

After the agents had again informed respondent of

his Miranda rights, he retracted his prior explana-

tion of how he had obtained the gun. This time re-

spondent stated that he had received the pistol from

his half-brother and another individual, who were

both involved in gun-dealing activities. At respond-

ent’s request, the agents paid respondent $10 to en-

able him to find the persons who had supplied him

with the gun. Following this meeting the agents

tht die aie ee

accompanied respondent in an unsuccessful attempt

to purchase firearms (Apps. A and F, infra, 3a-5a,

36a-37a; Tr. 37, 162, 199-200, 228-230).

Respondent admitted at the suppression hearing

that he had made the inculpatory statements of Janu-

ary 12 and also acknowledged that he had given a

false story to the agents on November 19. He

claimed, however, that prior to telling the agents the

truth on January 12 he had confirmed that the

agents’ alleged offer of immunity was still in effect

(App. A, infra, 5a; Tr. 110-113, 123).

Finally, the testimony at the hearing revealed that

respondent returned to the agents’ headquarters on

January 14, 1977, accompanied by his former wife.

At that time Agent McCulloch informed respondent

that his case had been referred to the United States

Attorney for prosecution. Respondent stated that he

was willing to work as an informant but that he had

no money to travel about and pick up information.

Agent McCulloch then gave respondent $50. Respond-

ent thereafter never produced any information, ar-

ranged any firearms transactions, or otherwise acted

as an informant (App. A, infra, 5a-6a; Tr. 201-203,

207, 223-224, 237, 243-247, 248).*

2. After holding the evidentiary hearing and con-

sidering the parties’ written and oral submissions,

the magistrate filed proposed findings of fact and

recommendations for the disposition of respondent’s

‘The state charges against respondent were dismissed on -

February 22, 1977. Respondent’s federal indictment was filed

on March 1, 1977.

suppression motion in accordance with 28 U.S.C.

636(b)(1)(B) and (C). The magistrate found that

respondent knowingly, intelligently and voluntarily

made inculpatory statements on three separate occa-

sions, after being informed of his Miranda rights on

each occasion. Moreover, the magistrate expressly

found that the testimony of the ATF agents was

more credible than the story offered by respondent,

and he specifically rejected respondent’s claim that

the agents had promised him immunity from prose-

cution in return for his cooperation. Accordingly,

the magistrate recommended that respondent’s mo-

tion to suppress his statements of August 8 and

November 19, 1976, and January 12, 1977, be denied

(App. G, infra, 39a-41a).

3. Respondent filed objections to the magistrate’s

report with the district court. Pursuant to 28 U.S.C.

636(b)(1), the district court made a de novo

determination of respondent’s suppression motion

based on a review of the transcript of the evidentiary

hearing before the magistrate, the magistrate’s pro-

posed findings and recommendations, and the oral

and written arguments of counsel. The court agreed

with the magistrate that respondent had voluntarily

chosen to make statements to the agents on the three

days in question, and it therefore denied the motion

to suppress (App. E, infra, 33a-34a).°

5 The district court also denied respondent’s motion to dis-

miss the indictment. Respondent claimed that he should have

been charged with violating 18 U.S.C. App. 1202(a), rather

than Section 922(h), because the two statutes overlap and

(= ae ea

4. The court of appeals reversed and remanded

(App. A, infra, la-24a). The court first addressed

respondent’s statutory claims. It concluded that both

the local court rules® and 28 U.S.C. 686(b) (1) (B)

authorized the reference of respondent’s suppression

motion to a magistrate. In addition, in reliance on

the language and legislative history of Section 636

(b), the court held that the trial judge’s decision to

deny respondent’s motion to suppress after reviewing

the transcript of the evidentiary hearing, the magis-

trate’s report, and the submissions of the parties, but

without hearing the live testimony itself, did not con-

stitute an abuse of discretion under the statute (id.

at 8a-14a).

The court of appeals then addressed respondent’s

constitutional arguments based on Article III and

the Due Process Clause. The court found that, be-

cause the statute requires the district court to make

a de novo determination of any disputed portion of

the magistrate’s report or proposed findings or rec-

ommendation, reference of a suppression motion to

a magistrate in accordance with Section 636(b) (1)

(B) is not an unconstitutional delegation of judicial

authority in violation of Article III (App. A, infra,

the former carries a lesser maximum penalty than the latter.

See App. D, infra, 29a-31a. See also United States v. Batch-

elder, No. 78-776 (June 4, 1979).

6 Local Magistrate Rule 1.01B(8) of the United States Dis-

trict Court for the Northern District of Illinois provides that a

federal magistrate may assist the district court “in the con-

duct of pretrial proceedings” in a criminal case. The court

of avpeals construed this rule to cover the reference of a mo-

tion to s1ppress.

14a). The court of appeals held, however, that a

district court’s failure to defer to the magistrate’s

proposed fact findings in connection with a motion

to suppress—which the statute does not permit (see

note 8, infra)—deprives a defendant of due process,

unless the district court itself hears the controverted

testimony. In the court of appeals’ view, at least

where “credibility is crucial to the outcome,” a “dis-

trict court cannot constitutionally exercise its discre-

tion to refuse to hold a hearing on contested issues

of fact in a criminal case” (id. at 24a). The court

therefore remanded for another suppression hearing

to be conducted personally by the district court judge

(id. at 15a-24a).

The court of appeals denied the government’s pe-

tition for rehearing en banc on May 4, 1979, with

two judges dissenting (App. C, infra, 27a-28a & n.*).

REASONS FOR GRANTING THE PETITION

This case presents an important question concern-

ing the constitutionality of the Federal Magistrates

Act, 28 U.S.C. 636(b) (1) (B). The court of appeals

held that, although Section 636(b)(1)(B) provides

that a district court may decide a suppression motion

based on a review of the transcript developed before

the magistrate, the magistrate’s proposed findings and

recommendations, and the submissions of the parties,

the Due Process Clause nonetheless requires the dis-

trict court to hear anew the testimony of the wit-

nesses, at least where “credibility is crucial to the

outcome” of the motion. The court of appeals has

thus declared an Act of Congress unconstitutional as

1 ON

applied in this case, and as a result it has substan-

tially limited the usefulness of magistrates in the fed-

eral courts. Moreover, the court’s holding conflicts

with the decisions of other courts of appeals that

have sustained the use of magistrates in similar sit-

uations. In these circumstances, review by this Court

is warranted.’

1. The court of appeals correctly concluded that the

Federal Magistrates Act, 28 U.S.C. (b), provides

for the kind of reference that occurred here. Section

636(b)(1)(B) states that the district court may

“designate a magistrate to conduct hearings, including

evidentiary hearings,” regarding pretrial matters

pending before the court, including a motion to sup-\

press evidence in a criminal case.’ Following the evi-

dentiary hearing, the magistrate is required to submit

to “the court proposed findings of fact and recommen-

dations for the disposition” of the motion. Within 10

days, the parties may file written objections to the

magistrate’s report. Thereafter the district court

7 Indeed, if the court of appeals had rendered this de:ision

in a civil proceeding involving the United States, the govern-

ment would have had a right of appeal to this Court. See 28

U.S.C. 1252; Fleming v. Rhodes, 331 U.S. 100 (1947).

8 Section 636(b)(1)(A) covers all magistrate references

in pretrial matters except for certain enumerated motions

such as motions to suppress. If the reference falls within

subsection (A), the magistrate’s determination is final and

binding on the district court unless shown to be “clearly

erroneous or contrary to law.” [bids Matters excepted from

subsection (A) may be referred to a magistrate for hearing

under subsection (B), but as to those matters the district

court may not defer to the magistrate’s findings.

“shall make a de novo determination of those portions

of the report or specified proposed findings or recom-

mendations to which objection is made.” The legisla-

tive history of this provision makes clear that the

court’s obligation to decide the matter de novo does

not include a requirement that it rehear the testi-

mony adduced at the hearing before the magistrate:

The use of the words “de novo determination”’

is not intended to require the judge to actually

conduct a new hearing on contested issues. Nor-

mally, the judge, on application, will consider the

record which has been developed before the

magistrate and make his own determination on

the basis of that record, without being bound to

adopt the findings and conclusions of the magis-

trate.

H.R. Rep. No. 94-1609, 94th Cong., 2d Sess. 3

(1976). See also 122 Cong. Rec. H12219 (daily ed.

Oct. 1, 1976) (remarks of Rep. Railsback); White

v. Estelle, 556 F.2d 13866 (5th Cir. 1977) ; Campbell

v. United States District Court, 501 F.2d 196 (9th

Cir.), cert. denied, 419 U.S. 879 (1974).

We also agree with the court of appeals that ref-

erences to a magistrate pursuant to Section 636(b)

(1)(B) do not run afoul of Article III of the Con-

stitution. “[T]he enforcement of federal criminal

law [has not] been deemed the exclusive province of

federal Art. III courts.” Palmore v. United States,

411 U.S. 389, 402 (1973). Non-Article III courts,

indeed even non-federal courts, have conducted fed-

eral criminal trials. Jd. at 402-404. Moreover, be-

cause under Section 636(b)(1)(B) an Article: III

judge retains the ultimate adjudicatory power over

all pretrial matters, transfer of a suppression motion

to a magistrate for hearing and recommendation does

not deprive a defendant of any rights protected by

Article III. See 411 U.S. at 407-410; Wingo v. Wed-

ding, 418 U.S. 461, 486-487 (1974) (Burger, C.J.,

dissenting) ; S. Rep. No. 94-625, 94th Cong., 2d Sess.

6 (1976). See also Mathews v. Weber, 423 U.S. 261,

269-270 (1976) ; Note, Masters and Magistrates in the

Federal Courts, 88 Harv. L. Rev. 779, 780-789 (1975).

The court of appeals erred, however, in concluding

that the Due Process Clause requires a district judge,

in ruling on a motion to suppress, to hear the testi-

mony that has previously been evaluated by the

magistrate. According to the court below (App. A,

infra, 17a), at least in the context of a criminal

case, due process demands that the “judicial fact-

finding must be designed to foster a reliable deter-

mination of credibility,” and “only two procedures

[are] adequate to the task’—v\he trial judge must

either “rehear the testimonial evidence” (7d. at 15a)

or must defer in its decisionmaking to the magistrate,

who has had the opportunity to observe the witnesses

(which the statute does not permit) (id. at 17a).

But where, as here, the district court has adopted

the magistrate’s findings, the court of appeals’ anal-

ysis makes little sense: if the district court had de-

ferred to the magistrate, rather than deciding the

matter de novo, it obviously would again have ac-

cepted the magistrate’s findings and would again

have denied respondent’s motion. The fact that

the district court made a more thorough review

of the record and gave respondent a second oppor-

tunity to establish de novo that his statements should

be suppressed cannot offend the Due Process Clause.

See Wingo v. Wedding, supra, 418 U.S. at 486-487

(Burger, C.J., dissenting); Mildner v. Gulotta, 405

F.Supp. 182, 195 (E.D. N.Y. 1975) (three-judge

court), aff’d mem., 425 U.S. 901 (1976).

In determining what process is due in particular

circumstances, this Court has identified several fac-

tors that must be considered (Mathews v. Eldridge,

424 U.S. 319, 335 (1976) ):

First, the private interest that will be affected

by the official action; second, the risk of an er-

roneous deprivation of such interest through the

procedures used, and the probable value, if any,

of additional or substitute procedural safeguards;

and finally, the Government’s interest, including

the function involved and the fiscal and ad-

ministrative burdens that the additional or sub-

stitute procedural requirement would entail.

® Of course, if the district court had deferred to the magis-

trate, it is arguable (although we would not agree) that the

procedure would not have comported with Article III. Cf.

Ellis v. Buchkoe, 491 F.2d 716, 717 (6th Cir. 1974); Noor-

lander v. Ciccone, 489 F.2d 642, 648 (8th Cir. 1973); TPO,

Inc. V. McMillen, 460 F.2d 348, 356-359 (7th Cir. 1972).

10 In cases where the district court disagrees with the mag-

istrate’s findings on a suppression motion that were favorable

to the defendant, the Due Process Clause may require the

court either to hear the critical testimony itself or to give a

detailed statement of reasons for its conclusions. Compare

Campbell v. United States District Court, supra, with United

States v. Bergera, 512 F.2d 391 (9th Cir. 1975). This more

difficult question is not presented here, since the district court

accepted the magistrate’s findings.

See also Mackey v. Montrym, No. 77-69 (June 25,

1979), slip op. at 8; Parham v. J.L., No. 75-1690

(June 20, 1979), slip op. at 13-14; Goldberg v. Kelly,

397 U.S. 254, 262-263 (1970). Application of these

factors indicates that Section 636(b)(1)(B) is con-

stitutional.

A defendant undoubtedly has a substantial interest

in the fairness and outcome of his criminal trial.

But it is the deterrence of official misconduct rather

than the insurance of a correct determination of

guilt or innocence that ordinarily underlies a sup-

pression order. See, e.g., Lego v. Twomey, 404 U.S.

477, 484-487 (1972); United States v. Janis, 428

U.S. 4383, 454 & n.28 (1976). Accordingly, the

process due at a pretrial hearing is considerably less

elaborate than the procedural protections that must be

accorded a defendant at the actual trial. In a suppres-

sion hearing, for example, the government need only

establish the admissibility of the challenged testimony

by a preponderance of the evidence, the usual burden

of proof in civil cases, whereas at trial the prosecution

must prove a defendant’s guilt beyond a reasonable

doubt. See Lego v. Twomey, supra, 404 U.S. at 482-

489. Similarly, in ruling on a motion to suppress,

the court has discretion to rely upon hearsay evidence

that would be inadmissible at trial. See United States

11 Similarly, other pretrial motions that may be referred

to a magistrate, such as a motion to dismiss an indictment

for pretrial delay, do not ordinarily implicate the guilt or in-

nocence of the defendant but rather involve some overriding

soceital goal. See Barker v. Wingo, 407 U.S. 514, 519 (1972).

v. Matlock, 415 U.S. 164, 172-177 (1974); McCray

v. Illinois, 386 U.S. 300 (1967); Fed. R. Evid. 104

(a). Indeed, in other areas, such as administrative

procedure, in which the magnitude of the private in-

terest at stake may be quite substantial, the fact-

finding procedure normally employed parallels that

involved under Section 636(b)(1)(B): an adminis-

trative law judge makes initial findings following an

evidentiary hearing, and the agency then enters its

administrative findings based on a de novo review of

the written record and the submissions of the parties.

See, e.g., 29 U.S.C. 160(c) ; Universal Camera Corp.

v. NLRB, 340 U.S. 474, 482-497 (1951).

Moreover, “[s]ince the purpose that a voluntari-

ness hearing is designed to serve has nothing what-

ever to do with improving the reliability of jury

verdicts,” Lego v. Twomey, supra, 404 U.S. at 486,”

the procedures allowed by Section 636(b)(1)(B) do

not present the “risk of an erroneous deprivation of”

a defendant’s liberty. See Mathews v. Eldridge,

supra, 424 U.S. at 335; Califano v. Yamasaki, No.

77-1511 (June 20, 1979), slip op. at 13.% In fact,

it is not at all apparent that the substitute proce-

12 See also Linkletter v. Walker, 381 U.S. 618, 639 (1965) ;

Johnson Vv. New Jersey, 384 U.S. 719, 727-728 (1966).

13In Califano v. Yamasaki, supra, the Court construed

Section 204(b) of the Social Security Act, 42 U.S.C. 404(b),

to require a pre-recoupment hearing because, in part, the de-

termination of waiver under that provision involves an evalua-

tion of credibility. Slip op. at 13-14. Nothing in Yamasaki

suggests, however, that the Constitution requires two evi-

dentiary hearings when credibility is involved.

dures mandated by the court of appeals would re-

duce the chance of an incorrect determination of a

suppression motion. Here, for example, respondent

was given an opportunity at the suppression hearing

to present evidence, cross-examine the government’s

witnesses, and argue his position both orally and in

writing. After the magistrate had entered his find-

ings and recommendations, respondent was allowed to

of law, and present oral argument before the district

court. Thereafter, the court issued its decision based

on the submissions of the parties, the transcript of

the hearing, and the magistrate’s report. Although

requiring the district court to rehear the testimony

might occasionally change the result of the suppres-

sion hearing, there is no reason to believe that the

final determination would be more accurate. See also

Mackey v. Montrym, supra, slip op. at 10-11.

Finally, the court of appeals’ conclusion that the

trial judge must rehear the testimony at a suppres-

sion hearing unquestionably will impose a substantial

additional burden on the federal courts. In Fiscal

Year 1978, magistrates made recommendations on

1,318 substantive criminal motions pursuant to Sec-

tion 636(b)(1)(B). 1978 Annual Report of the Di-

rector of the Administrative Office of the United

States Courts A-144 (Table M-4). The court’s de-

cision will either necessitate two duplicative, full-

dress evidentiary hearings or (more likely) elimi-

nate the use of magistrates in many circumstances;

either alternative would be contrary to the express

desire of Congress to alleviate the caseload conges-

tion in the district courts. See H.R. Rep. No. 94-

1609, 94th Cong., 2d Sess. 4-7 (1976) ; S. Rep. No. 94-

625, 94th Cong., 2d Sess. 4-5 (1976).’* Indeed, the

need to hold two hearings with regard to virtually

every suppression motion assigned to a magistrate

without the defendant’s consent not only will burden

district judges, counsel, and witnesses, but also will

tax other limited resources such as courtrooms and

court reporters. Cf. Schneckloth v. Bustamonte, 412

U.S. 218, 260-261 (1973) (Powell, J., concurring). In

short, the decision below effectively renders useless

this important tool in the administration of justice

in a significant number of cases.”

14 See also S. 237 and H.R. 1046, 96th Cong., Ist Sess.

(1979), which are pending bills that would expand further

the use of magistrates to assist the district courts.

15 The court of appeals attempted to limit its holding to

suppression motions in which “credibility evidence is central

to the determination of a material issue of fact” (App. A,

infra, 16a). But, as the court quickly conceded (id. at 17a),

most motions to suppress will involve crucial questions of

credibility, especially if the motion requires an evidentiary

hearing for its resolution. See, e.g., Davis v. North Carolina,

384 U.S. 737, 741 (1966). Indeed, the decision below may

have even greater impact than the court acknowledged. In

FY 1978, magistrates made recommendations in 8,332 matters

involving criminal indictments and conducted 966 probation

revocation hearings and 458 hearings on prisoner petitions.

1978 Annual Report, supra, at A-144 to A-145. Because many

of these proceedings, which are part of the criminal justice

process, involve findings of credibility, the court of appeals’

construction of the Due Process Clause might preclude effec-

tive use of a magistrate in these cases as well.

2. The court of appeals’ decision conflicts with

decisions of the Fifth and Ninth Circuits. In Camp-

bell v. United States District Court, 501 F.2d 196,

205-207 (9th Cir.), cert. denied, 419 U.S. 879 (1974),

the court held that a magistrate may constitutionally

preside over a pretrial motion to suppress evidence

in a criminal case, provided that the district court

makes a “de novo determination” of the motion. The

court was not required to rehear the evidence. Al-

though Campbell was decided under the predecessor

version of the Federal Magistrates Act, there is no

reason to believe that the Ninth Circuit would reach a

different result today. Indeed, Congress expressly

modeled the 1976 changes in the Act on the Campbell

opinion, including use of the phrase “de novo determi-

nation.” See H.R. Rep. No. 94-1609, 94th Cong., 2d

Sess. 3-4 (1976).’*

More recently, the Fifth Circuit (in a case decided

under the current statute) has explicitly rejected the

position taken by the court of appeals in this case.

United States v. Whitinire, 595 F.2d 1303 (5th Cir.

1979). In Whitmire, the court of appeals held that

the reference to a magistrate of a suppression mo-

tion involving a Fourth Amendment claim did not

violate the Due Process Clause, even though it was

1®The Ninth Circuit subsequently held that the district

court must rehear the critical testimony where it rejects find-

ings and recommendations of the magistrate based on credi-

bility determinations. United States v. Bergera, supra. The

court of appeals reiterated, however, that where the district

court accepts the findings of the magistrate it need not rehear

the testimony. Jd. at 394. Here, of course, the district court

agreed with the magistrate’s findings and recommendations.

the magistrate who “had a first-hand look at the

witnesses and appraised their credibility.” Jd. at

1305. The court expressly acknowledged that its

“holding differs with that of the Seventh Circuit in

* * * Raddatz” (id. at 1306 n.1), but it nonetheless

concluded that the procedures established by Section

636(b) (1) (B) “provide sufficient safeguards both to

ensure the integrity of the factfinding process and

retention by the judge of final responsibility for rul-

ing on the motion.” Jd. at 1305. See also White v.

Estelle, supra; Parnell v. Wainwright, 464 F.2d 735

(5th Cir. 1972).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

JULY 1979

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 78-1350

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

HERMAN RADDATZ, DEFENDANT-APPELLANT

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 77-Cr-325—Nicholas J. Bua, Judge

Argued November 9, 1978—Decided February 6, 1979

Before CUMMINGS, SPRECHER, and Woop, Circuit

Judges.

SPRECHER, Circuit Judge. The district court found

the defendant, Herman Raddatz, guilty of violating

18 U.S.C. § 922(h), receipt of a firearm in interstate

commerce by a convicted felon, and imposed a five

year sentence.’ The Government concedes on appeal

1 Ultimately the judge modified the sentence to require

only six months incarceration, but to be followed by 414

years probation.

that the sentence imposed was improper under our

decision in United States v. Batchelder, F.2d

— (7th Cir. 1978), cert. granted, U.S. ——

(1979).?

The defendant argues additionally, however, that

the reference of his motion to suppress evidence to a

magistrate under 28 U.S.C. § 636(b)(1)(B) vio-

lated both the Due Process Clause and Article III of

the Constitution. We conclude that the defendant

was denied Due Process and accordingly reverse and

remand for a new hearing on the motion to suppress

before the district court.

On August 8, 1976, two Chicago police officers,

Monroe Vollick and James Bach, arrested the defend-

ant for unlawful use of a weapon. Officer Vollick

testified at trial that just prior to his arrest, the

defendant was found standing over a man with a

bleeding head injury. The defendant was holding a

gun. The bleeding man, Jimmy Batson, told the of-

ficers that he had fallen down. Officer Vollick testified

that while in custody, Raddatz told the police that he

had been fighting with Batson over a family matter.

2 Although 18 U.S.C. § 924 authorizes a maximum sentence

of five years for violations of § 922(h), another section of the

criminal code describes the same offense but authorizes a

maximum sentence of only two years. In Batchelder we held

that, “‘[i]t is impermissible to sentence a defendant for five

years under Section 922(h) when he could receive only a two

year maximum sentence under Section 1202(a).” F.2d

at .

The officer further testified that Raddatz stated he

had brought the gun with him in case any of Batson’s

friends were around. A formal state charge was filed

against the defendant on October 27, 1976.

Paul Russell and Richard McCulloch, Special

Agents for the Bureau of Alcohol, Tobacco and Fire-

arms learned from Officer Vollick that a state fire-

arm charge was pending against the defendant. The

agents were also aware that Raddatz was a convicted

felon, and that the gun had traveled in interstate

commerce (two of the elements necessary for the

prosecution in issue). _

On November 19, 1976, McCulloch and Russell in-

terviewed Raddatz at his home. After reading

Miranda warnings to him, Russell told Raddatz that

the gun which was recovered from the defendant’s

possession on August 8 had been traced to its last

owner, a victim of an unsolved homicide in another

state. The defendant told the agents that he had

taken the gun from Batson to pistol-whip him and

did not know where Batson had acquired the gun.

On January 12, 1977, the defendant called the

firearms agents and requested a meeting. The agents

picked Raddatz up and brought him to their office.

The defendant there informed the agents that his

earlier statement of November 19 was incorrect. He

told the agents that he had not taken the gun from |

Batson and related to them how he had acquired it.

The state charges were dismissed on February 22,

1977. A federal indictment under 18 U.S.C. § 922(h)

followed on March 1, 1977. Pretrial motions, includ-

ing a motion to suppress various statements made by

the defendant, were filed on May 4, 1977: Over the

defendant’s objection, the district court judge re-

ferred the motion to suppress to a magistrate for

hearing.

At the hearing before the magistrate, defense coun-

sel attempted to demonstrate that the January 12,

1977 statement of the defendant was involuntary

because it was made in reliance on promises of the

agents that the case against him would be dismissed

if he cooperated.* If the agents had promised a dis-

missal of the indictment in exchange for information

about the origins of the gun the statement would in

all likelihood be suppressed. See Malloy v. Hogan,

378 U.S. 1, 7 (1964) (citing the statement of Bram

v. United States, 168 U.S. 532, 542-43 (1897) that

the “constitutional inquiry is . . . whether the con-

fession was ‘free and voluntary: that is, [it] must

not be extracted by any sort of threats or violence,

nor obtained by any direct or implied promises, how-

ever slight, nor by the exertion of any improper in-

fluence. . . .’”). The January 12 statement was

relied upon by the Government to establish two of

3The defendant also challenges the admissibility of the

statements on alternative grounds. Defendant argues that the

waiver of the privilege against self-incrimination is not valid

because the agents’ version of the events suggests that they |

intentionally misled the defendant to believe that he was not

in jeopardy of prosecution. Defendant also argues that the

statements are excludable because his right to counsel was

violated at two of the interviews. In view of our ultimate

disposition, we need not consider these claims.

the essential elements of the offense, thus under-

scoring the dispositive character of the motion.

The defense elicited two varieties of evidence to

support a finding of inducement: testimony of the

promise and of a course of conduct suggestive of a

prior promise. The defendant testified that at the

November 19 meeting Russell told him that he was

going to be indicted by federal prosecutors. If the

defendant would cooperate with the agents, however,

“somebody would talk to the prosecutor, and it would

be dismissed.” The defendant further testified that

he was advised that otherwise he would be given a

lengthy sentence in a federal penitentiary. The de-

fendant stated that his meeting with the agents on

January 12 was motivated solely by his decision to

take advantage of the agents’ offer. He testified that

before he gave the corrected statement on January

12, the agents assured him that their offer of No-

vember 19 was still good.

The defense also introduced testimony to establish

a course of cooperation with the agents to support

the inference of a promise. First, it is uncontested

that the defendant’s January 12 trip to see the agents

was unsolicited. On that date he gave them all the

information he had about the gun he had used on

August 8, implicating his half-brother and another

individual in gun-dealing activities. The agents gave

him $10 on that date to enable him to locate the

people from whom he had obtained the gun. On

January 14, the defendant brought his wife with

him to the agents’ office to discuss again activity as

an informant. McCulloch gave him $50 at that meet-

ing. On a later date, the defendant took McCulloch

to an area of the city where he claimed guns were

being sold illegally. He also turned over some addi-

tional names of possible firearms violators. The de-

fendant, however, never set up a gun sale for the

agents.

The defendant claims that this course of conduct

circumstantially supports his testimony that a prom-

ise had been made on November 19, 1976. He argues

that it is not credible to believe that he just casually

volunteered this self-incriminating information. Fur-

ther, he argues that the agents immediately treated

him as an informer when he contacted them because

that was in accord with the prior agreement they

had made.

Although the agents are essentially in agreement

with this account of the conduct which transpired,

they deny any November 19 promise to obtain dis-

missal of anticipated charges in exchange for coop-

eration. Agent Russell supported this contention by

stating that as of the November 19 meeting Raddatz

was not even an object of investigation. The purpose

of the November 19 meeting was to obtain informa-

tion about the prior ownership of the gun confiscated

from Raddatz on August 8, since the gun had been

used in an unsolved homicide. Russell stated that he

had met Raddatz on only two occasions, November 19

and January 12. At one point in the hearing he de-

nied that he discussed any possibility of cooperation

with the defendant on either date. On cross-examina-

tion however, Russell stated that he told the defendant

on November 19 that if Raddatz would cooperate in

locating Batson, Russell would mention the defend-

ant’s cooperation to the United States Attorney in

the event a case was brought against him. Russell

stated that the request for cooperation was limited to

assistance in tracing the ownership of the gun and

that Raddatz had not been recruited to act as an

informant.

McCulloch also testified that no promise was made

to Raddatz on November 19. However, McCulloch’s

testimony varies from Russell’s in several respects.

First, McCulloch testified that the purpose of their

November 19 visit was to obtain the venue informa-

tion which they needed to initiate a prosecution

against Raddatz. He also specifically testified that the

agents sought Raddatz’s cooperation as an informant

at the January 12 meeting and suggested that Rad-

datz had been told on November 19 that favorable

mention would be made to the United States Attorney

if he cooperated. Although the agents concede that

Raddatz cooperated by giving them information about

the gun used on August 8, no mention of this coopera-

tion was made to the United States Attorney. Mc-

Culloch explained that the agents did not speak to

the United States Attorney on the defendant’s be-

half because he never gave the type of cooperation

they requested—arranging a gun sale.

On the basis of this testimony, the magistrate

recommended that the motion to suppress be denied.

He specifically stated, “I find the testimony of the

Alcohol, Tobacco and Firearms agents more credible.

. .. I find that Federal agents never advised Rad-

datz that charges against him would be dismissed, if

he cooperated.” The defendant filed objections to the

magistrate’s recommendation with the district court.

After reading the transcript of the motion to sup-

press and hearing arguments by both parties the

district court overruled the objections and adopted

the recommendation of the magistrate. The judge

did not hear testimony from the «witnesses who ap-

peared at the suppression hearing before the magis-

trate.

The defendant’s principal contention on appeal is

that his conviction was improper because his motion

to suppress was heard before a magistrate and not

before the trial court judge. In 1976, Congress

amended the United States Magistrates Act to clarify

that motions to suppress, as well as a variety of other

motions, could be referred to magistrates for a hear-

ing. 28 U.S.C. § 686(b)(1). The amendment was

enacted to overrule the Supreme Court construction

in Wingo v. Wedding, 418 U.S. 461 (1974), of Con-

gressional intent as precluding magistrates from

hearing motions to suppress.

The defendant argues that despite the clear statu-

tory authorization, the reference in this case was

improper on several grounds. The primary conten-

tion is that the reference was made in a manner

which violated both Article III and the Due Process

Clause of the Constitution. In addition, the de-

fendant argues that the reference was invalid be-

cause not made pursuant to required enabling rules.

The defendant finally suggests that it would be ap-

propriate for this court to exercise its supervisory

powers to prohibit the procedure employed in this

case. Since it is well established that it is preferable

to avoid constitutional adjudication we address the

non-constitutional arguments of the parties first.

Section 636(b) (4) of the Act requires that “[e]ach

district court shall establish rules pursuant to which

the magistrates shall discharge their duties.” The de-

fendant argues that the district court did not have

the power to refer the hearing on the motion to

suppress to a magistrate, because no rule of the

district court explicitly provided for this category of

reference. He reasons that an explicit rule is re-

quired by the statute and that the district court’s

failure to enact such a rule rendered the reference

void ab initio, necessitating a new hearing pursuant

to valid rules. The local rules enacted in 1975 pro-

vide that magistrates are

authorized to exercise all powers and perform all

duties now or hereafter authorized by the Con-

stitution and laws of the U.S., applicable Fed-

eral Rules of Civil and Criminal Procedure, local

rule, order or regulation.

Loc. Mag. R. 1.01A. The rules further provide:

Without limiting the general grant of author-

ity in paragraph 1.01A, the U.S. Magistrates in

this district are authorized to perform the fol-

lowing duties in criminal cases:

10a

Upon reference by a judge of this court, assist

the judge in the conduct of pretrial proceedings

including, but not limited to, hearing and ruling

upon all discovery motions pursuant to Rule 16

of the Federal Rules of Criminal Procedure and

conducting pretrial.conferences pursuant to Rule

17.1 of the Federal Rules of Criminal Proce-

dure.

Loc. Mag. R. 1.01B(8). We are not convinced that

the rules are so devoid of content as to deprive the

lower court of any power to make this reference

under the statute. Congress mandated that the district

court establish rules. Rules have been established,

and those rules can be construed to authorize the

reference of a motion to suppress—a “pretrial pro-

ceeding’—to a magistrate. Although in some cases

the defendant might properly challenge the sufficiency

of the rules, this is not such a case. The defendant

does not allege any deficiency in the magistrate’s dis-

charge of his duties—the subject of the required

rules. Thus he cannot establish any prejudice from

the failure of the district court to enact more precise

standards. The statutory mandate to enact rules

was satisfied.

It is also not possible to avoid the constitutional

questions presented by resort to our supervisory pow-

ers. The defendant requests that this court exercise

its supervisory powers to prevent the procedure em-

ployed in this case either by prohibiting referral of

motions to suppress to magistrates or by requiring

the trial judge to rehear the contested evidence pre-

sented to the magistrate. Both of these solutions are

lla

unavailable. The appellate courts must be ever wary

that it is only appropriate to “supervise” when Con-

gress has not. As the Supreme Court stated in United

States v. National City Lines, Inc., 334 U.S. 573, 589

(1948), “Our general power to supervise the admin-

istration of justice in the federal courts . . . does not

extend to disregarding a validly enacted and applica-

ble statute or permitting departure from it... .”

See also Palermo v. United States, 360 U.S. 343

(1959); Comment, Judicially Required Rulemaking

as Fourth Amendment Policy: An Applied Analysis

of the Supervisory Powers of Federal Courts, 72 Nw.

U.L. REv. 595, 622 (1977). In National City Lines,

the Court instructed that before exercising super-

visory power, the court must examine the purpose of

relevant statutes to ascertain whether “room was left

for judicial discretion” to impose extra-constitutional

requirements. 334 U.S. at 588.

The Magistrates Act and its history clarify that

this court cannot use the supervisory power to pre-

vent the reference of a motion to suppress to a magi-

strate or to require the district court judge to per-

sonally hear the evidence on a motion that has been

referred to a magistrate. The statute is explicit on

both issues. Section 636(b) (1) provides:

(b)(1) Notwithstanding any provision of

law to the contrary—

(A) a judge may designate a magistrate

to hear and determine any pretrial matter

pending before the court, except a motion

for injunctive relief, for judgment on the

12a

pleadings, for summary judgment, to dis-

miss or quash an indictment or information

made by the defendant, to suppress evidence

in a criminal case, to dismiss or to permit

maintenance of a class action, to dismiss

for failure to state a claim upon which re-

lief can be granted, and to involuntarily

dismiss an action. ...

(B) a judge may also designate a magi-

strate to conduct hearings, including evi-

dentiary hearings, and to submit to a judge

of the court proposed findings of fact and

recommendations for the disposition, by a

judge of the court, of any motion excepted

in subparagraph (A), of applications for

posttrial relief made by individuals con-

victed of criminal offenses and of prisoner

petitions challenging conditions of confine-

ment.

findings and recommendations under sub-

paragraph (B) with the court and a copy

shall forthwith be mailed to all parties.

Within ten days after being served with a copy,

any party may serve and file written objections

to such proposed findings and recommendations

as provided by rules of court. A judge of the

court shall make a de novo determination of

those portions of the report or specified proposed

findings or recommendations to which objection

is made. A judge of the court may accept, re-

ject, or modify, in whole or in part, the findings

or recommendations made by the magistrate.

The judge may also receive further evidence or

13a

recommit the matter to the magistrate with in-

structions.

(Emphasis added). The House Report accompanying

the bill states that although the judge must make a

“de novo determination” this “is not intended to re-

quire the judge to actually conduct a new hearing on

contested issues.” H. Rep. No. 94-1609, 94th Cong.,

2d Sess., reprinted in [1976] U.S. CoDE Conc. & AD.

NEWS 6163.

The legislative history underscores that this use

of the supervisory power would be inconsistent with

the purposes of the amendments. Expressly relying

on the House Committee on the Judiciary’s own re-

sponsibility for the “oversight of the federal courts,”

Congress designed the statute to enable the district

court judges, through increased use of magistrates,

to “have more time to preside at the trial of cases

having been relieved of part of his duties which re-

quired the judge to personally hear each and every

pretrial motion or proceeding necessary to prepare a

ease for trial.” Jd. at 6166. See also id. at 6173.

Although Congress did not prohibit the district court

from rehearing evidence presented to the magistrate,

the statute invests the district court judge with dis-

cretion to make that procedural decision. Jd. at 6162-

63. The appellate court can now only review, and

not divest, the lower court of that discretion. As in

National City Lines, we must conclude that the Con-

gressional purpose to broaden the procedural choices

of a district judge cannot be “narrowed by applica-

l4a

tion of a vague and discretionary power.” 334 U.S.

at 581.

III

The constitutional questions are dispositive of this

appeal. The defendant rests his challenge to the

procedure employed in this case on both Article III

and Due Process. Although our construction of the

statute satisfies Article III, we conclude that defend-

ant’s Due Process rights were violated.

Article III requires that the judicial power of the

United States be vested in Article III judges. The

defendant argues that the Magistrates Act, when ap-

plied to allow the reference of a hearing on contested

facts, unconstitutionally delegates judicial power to a

non-Article III judge. Anticipating potential Article

III objections to an expanded role for federal magis-

trates, Congress resolved to avoid any such objections

by requiring that a district court judge “shall make

a de novo determination” on contested aspects of a

magistrate’s recommendation in case-dispositive mo-

tions. 28 U.S.C. § 636(b)(1)(C). See Sick v. City

of Buffalo, 574 F.2d 689, 693 n.17 (2d Cir. 1978).

The Supreme Court in Mathews v. Weber, 423 U.S.

261, 270 (1976), emphasized that the statute clearly

requires the Article III judge to make a de novo

determination. Article III is therefore satisfied.

Sick v. City of Buffalo, 574 F.2d at 693; Noorlander

v. Ciccone, 489 F.2d 642, 648 (8th Cir. 1973).

The trial judge in this case exercised his discre-

tion to make the de novo determination on the basis

15a

of the written record without hearing the witnesses’

testimony. Although the statute does not mandate

the judge to rehear the testimonial evidence, the

Due Process Clause of the Constitution does. We

conclude that the procedure employed in this case

denied defendant his Due Process right to a meaning-

ful hearing before the trier of fact on his motion to

suppress.*

There is no question that Due Process guarantees

a meaningful hearing and procedures sufficient to en-

sure a reliable determination of the facts underlying

a motion to suppress. Jackson v. Denno, 378 U.S.

368, 376-77 (1964), United States v. Bergera, 512

F.2d 391, 393 (9th Cir. 1975). Due Process, how-

ever, does not encompass any fixed requirement that

the trier of fact personally hear the evidence in

every case. Courts have on occasion upheld the con-

stitutionality of decisions rendered by a trier of fact

who decided the case on the basis of a transcript.

Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129

(2d Cir.), cert. denied, 389 U.S. 839 (1967); Van

4 Although we conclude that the procedures employed were

insufficient to ensure an accurate de novo determination, we

cannot conclude from this record that the judge simply abused

his discretion under the statute by not making the required

de novo determination. Similarly, although courts have sug-

gested that Article III is only satisfied when the trial court

retains and exercises de novo decision making power, see

Noorlander v. Ciccone, 489 F.2d 642, 648 (8th Cir. 1973), we

do not conclude that Article III was violated. The trial court

may well have made a de novo judgment, but we simply do

not believe that the judgment was derived from constitu-

tionally adequate procedures.

16a

Teslaar v. Bender, 365 F. Supp. 1007 (D. Md. 1978).

The command of Due Process is only that the defend-

ant be given a “hearing appropriate to the nature of

the case.” Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 313 (1950). The precise question

then is whether the nature of this case necessitates

that the trier of fact personally hear the evidence in

order to ensure a meaningful determination of the

facts. We conclude that it does.

Several aspects of the “nature of this case” demon-

strate why the trier of fact must necessarily have

heard the evidence himself to guarantee the substan-

tial rights of the defendant. We emphasize that this

is a criminal case,® tried in an Article III court.°

The defendant has not consented to the procedure em-

ployed by the judge,’ and credibility evidence is cen-

tral to the determination of a material issue of fact.

5 The nature of the right at stake dictates the degree of

procedural precaution due by the judicial system. In crimi-

nal cases, the procedural protections must be the greatest.

See, e.g., United States ex rel. Graham v. Mancusi, 457 F.2d

463 (2d Cir. 1972). Thus whether this procedure may satisfy

Due Process in some civil cases is a question we need not

decide.

® See Rogers v. Loether, 467 F.2d 1110, 1116 (7th Cir.

1972), aff'd sub nom. Curtis v. Loether, 415 U.S. 189 (1974),

suggesting a distinction between procedures required in judi-

cial rather than statutory courts.

7A number of courts have upheld references to a magis-

trate when done with the consent of the parties. Sick v. City

of Buffalo, 574 F.2d 689, 690 n.5 (2d Cir. 1978) ; Reciprocal

Exchange v. Noland, 542 F.2d 462, 463 (8th Cir. 1976) ;

De Costa v. CBS, Inc., 520 F.2d 499, 503-08 (1st Cir. 1975),

cert. denied, 423 U.S. 1073 (1976).

17a

It is quite clear from the record that in this case

credibility is determinative, as in many motions to

suppress. See Brown v. Illinois, 422 U.S. 590, 603

(1975) ; Davis v. North Carolina, 384 U.S. 787, 741

(1966). The success or failure of the motion to sup-

press—and in effect the prosecution itself—depends

upon whether the judge believes or disbelieves the

defendant’s statement that the law enforcement offi-

cers promised him that a federal charge against him ©

would be dropped if he cooperated. This is perhaps

the most significant factor in determining what fact-

finding procedures must be employed.

The nature of the evidence necessary for decision

inevitably must affect the type of procedures required

to evaluate the evidence. It has been emphasized for

decades that judicial fact-finding must be designed to

foster a reliable determination of credibility. Wingo

v. Wedding, 418 U.S. 461, 474 (1974); Goldberg v.

Kelly, 397 U.S. 254, 269 (1970); Holiday v. John-

ston, 318 U.S. 342, 352 (1941). The courts have

generally recognized only two procedures as adequate

to the task. Of course the most common method of

determining credibility is to require the trier of fact

to observe the demeanor of the witnesses. Alterna-

tively, when the ultimate trier of fact has not seen

and heard the witnesses, credibility is accounted for

by requiring the trier of fact to afford substantial

deference to the factual determination of the judge or

examiner who did hear the witnesses. See, e.g., the

doctrine requiring appellate courts to defer to trial

18a

court findings of fact unless “clearly erroneous.” FED.

R. Civ. P. 52(a) ; United States v. U.S. Gypsum Co.,

333 U.S. 364, 394-95 (1948) ; Aunt Mid, Inc. v. Fjell-

Oranje Lines, 458 F.2d 712, 716 (7th Cir.), cert. de-

nied, 409 U.S. 877 (1972); S. Buchsbaum & Co. v.

Federal Trade Commission, 153 F.2d 85, 88 (7th

Cir.), vacated on request of parties, 328 U.S. 818

(1946). See also FED. R. Civ. P. 53(e) (2), requiring

the district court to accept a master’s findings of

fact unless clearly erroneous.

Neither of these procedural devices for assessing

credibility was employed in this case. First, the stat-

ute itself prohibits any reliance on the latter pro-

cedure of according substantial deference to the find-

ings of the individual who heard the evidence. The

statute expressly requires the district judge to make

a de novo determination of contested issues of fact—

a mandate incompatible with the practice of accord-

ing deference sufficient to ensure that demeanor evi-

dence is adequately weighted. And although the stat-

ute would not have prevented reliance on the alter-

nate device—hearing the testimony—the judge exer-

cised his discretion not to hear it and made his

determination on the written record alone.

Our reading of the record convinces us of the wis-

dom of the traditional practice. The record here does

not reveal a pattern of facts that exposes the de-

fendant’s testimony as wholly incredible. Thus the

truth cannot be derived from this written record

without an intolerably high margin of error—a mar-

19a

gin of error that time-honored tradition teaches can

be substantially reduced by simply requiring the trier

of fact to hear and observe the witnesses.

Prior precedents uniformly support our conclusion

that the responsibility for the hearing and the deci-

sion must be vested in the same judge in a criminal

case where credibility is essential. This rule of deci-

sion emerges in several classes of cases. Of most

direct relevance, the rule has been applied in cases

involving references to magistrates. In Noorlander

v. Ciccone, 489 F.2d 642, 648-49 (8th Cir. 1973),

the Eighth Circuit held that although evidentiary

hearings in habeas cases could be referred to magis-

trates under the Act, Due Process required that if a

defendant objected to the magistrate’s determination

of a material fact, “an Article III judge... [must]

personally take the testimony of the witnesses, deter-

mine their credibility and decide for himself what the

facts are.” Id. at 648.2 The Ninth Circuit, in United

States v. Bergera, 512 F.2d 391 (9th Cir. 1975),

stated that absent deference to the magistrate’s rec-

ommendation,® Due Process requires the judge to

hear the testimony and prohibits a decision based

solely on the transcript. Jd. at 394. The same result

8 Although a Due Process case, Noorlander was actually de-

cided on the Due Process right of the party to have his case

heard by an Article III judge. Here we decide only that de-

fendant had a Due Process right to a meaningful hearing.

® The court in Bergera suggests that its prior decision in

Campbell v. United States District Court, 501 F.2d 196 (9th

Cir.), cert. denied, 419 U.S. 879 (1974), permitting the trial

20a

was reached by the First Circuit in O’Shea v. United

States, 491 F.2d 774, 778 (1st Cir. 1974) (grounds

for decision not stated). Cf. McKinney v. Parsons,

488 F.2d 452 (5th Cir. 1974). Although not decided

under the United States Magistrates Act, Judge

Weinstein found, in a comprehensive opinion, that

lawyers were denied Due Process by New York, dis- |

ciplinary proceedings which provided a testimonial

hearing only before a magistrate, and not before the

judge responsible for a de novo determination.

Mildner v. Guloota, 405 F. Supp. 182, 201-33 (E.D.

N.Y. 1975) (dissenting opn.), aff'd mem., 425 U.S.

901 (1976). See also United States v. Vater, 259

F.2d 667, 674 (2d Cir. 1958) (dissenting opn.)

(Lumbard, J.).

This circuit has applied this principle in another

line of cases. In Smith v. Dental Products Co., 168

F.2d 516 (7th Cir. 1948), and S. Buchsbaum & Co.

v. Federal Trade Commission, 153 F.2d 85 (7th

Cir.), vacated on request of parties, 328 U.S. 818

(1946), we held that when a judge who held a hear-

ing dies before ruling, a successor judge may not rely

on the transcript of the hearing to render a decision.

court to accept the magistrate’s recommendation without re-

hearing the evidence, is not inconsistent. 512 F.2d at 392.

We are in total accord with the court’s conclusion in Bergera

that Due Process is only satisfied if the trial court defers to

the magistrate or rehears the evidence. We do not not be-

lieve however that the degree of deference suggested by

Bergera and Due Process is consistent with the statutory

requirement of a de novo determination.

2la

Due Process requires that the witnesses be heard by

the successor judge. The same result has been

reached in other circuits on various grounds. See

United States v. Nugent, 100 F.2d 215, 217 (6th

Cir. 1938), cert. denied, 306 U.S. 648 (1939) ; Brom-

berg v. Moul, 275 F.2d 574 (2d Cir. 1960). See also

Fep. R. Civ. P. 68; FED. R. Crim. P. 25; 7 Moore’s

FEDERAL PRACTICE { 63-05 at 68-9 (2d Ed. 1978).

Finally we rely on Judge Friendly’s decision in

United States ex rel. Graham v. Mancusi, 457 F.2d

463 (2d Cir. 1972). In Mancusi, the defendant chal-

lenged a New York procedure permitting an appel-

late court to enter a conviction for a lesser offense

when improperly admitted evidence would require

reversal of the offense for which the defendant was

convicted. The Second Circuit found this procedure

constitutionally deficient, reasoning that the appellate

court was assuming the role of the decider of fact

without benefit of observing the evidence. Judge

Friendly stated that:

Due process forbids that, when an issue of fact

is presented, a man should be sent to prison with-

out the trier of the facts having heard his ac-

cusers and himself, if he desires to testify, and

weighing their credibility in the light of their

demeanor on the stand.... It... [is] for the

judge who saw and heard the witnesses at the

trial . . . to determine where the truth lay—not

for appellate judges reading a cold record.

Id. at 469-70.

22a

We are aware of no persuasive authority to the

contrary. Some decisions in the administrative con-

text have permitted the trier of fact to render a

judgment on the basis of a written record. In Utica

Mutual Insurance Co. v. Vincent, 375 F.2d 129 (2d

Cir.), cert. denied, 389 U.S. 839 (1967), Judge

Friendly found that no Supreme Court decision “sug-

gests that the decider must actually hear the wit-

nesses or be furnished a report on their credibility;

the thrust is quite the opposite.” Jd. at 132. But in

Mancusi, Judge Friendly specifically limited his opin-

ion in Utica Mutual Insurance Co., stating:

[I]n criminal cases Chief Justice Hughes’ much

cited statement, “The one who decides must

hear,” Morgan v. United States, 298 U.S. 468

(1936), applies in full force, without the qualifi-

cations that have been recognized for certain

civil and administrative proceedings. Cf. Utica

Mutual Ins. Co. v. Vincent... .

457 F.2d at 469 (emphasis supplied).

Nor do we believe that any case decided under the

Magistrates Act advises a contrary result. Mathews

v. Weber, 423 U.S. 261 (1976), cited by the govern-

ment, upheld the authority of a magistrate to make

an initial finding on the substantiality of the evidence

supporting a social security determination. The dis-

trict court judge in Mathews was in a position to re-

view meaningfully the recommendations of the magis-

trate since the record for decision was closed, i.e.,

the magistrate did not conduct any hearings. As a

result, demeanor and veracity were not issues to be

23a

determined by the magistrate or the judge. Compare

Goldberg v. Kelly, 397 U.S. 254 (1970), with Rich-

ardson v. Perales, 402 U.S. 389 (1971).

Campbell v. United States District Court, 501 F.2d

196 (9th Cir.), cert. denied, 419 U.S. 879 (1974),

decided before the 1976 amendments, did suggest

that it would be constitutional to permit the trial

court to accept the magistrate’s findings without a

new hearing. We believe however that the Ninth

Circuit in its subsequent opinion in United States v.

Bergera, 512 F.2d 391 (9th Cir. 1975), modified the

constitutional import of Campbell in a way that sub-

stantially conforms with our holding here.”

Finally, we do not believe that Chief Justice

Burger’s dissenting opinion in Wingo v. Wedding,

418 U.S. 461 (1974), advises a contrary conclusion

as argued by the government. In Wingo, the ma-

jority of the Supreme Court determined that the

United States Magistrates Act, as then in force, did

not permit the district court to refer evidentiary

hearings on habeas petitions to magistrates. In a

dissenting opinion, the Chief Justice concluded that

the Act did permit the reference (as the later amend-

ment now clearly provides). Although he also con-

cluded that so construed, the Act was constitutional,

we do not read the Chief Justice’s opinion to say that

when credibility is essential to the disposition of con-

10 See note 9 supra. We also do not read White v. Estelle,

556 F.2d 1366 (5th Cir. 1977), to reach a contrary result

since the parties apparently raised no constitutional objec-

tions to the reference.

24a

tested issues the trial court can constitutionally dis-

pense with a hearing. Id. at 486-87. That issue was

not addressed.

We readily accept the Chief Justice’s suggestion

that the Act’s provisions permitting magistrates to

conduct hearings on motions to suppress are consti-

tutional. Congress did not require the trial court to

determine this case on the basis of a written record

alone. We decide only that the district court cannot

constitutionally exercise its discretion to refuse to

hold a hearing on contested issues of fact in a crimi-

nal case where credibility is crucial to the outcome.

Whether the district court satisfies this constitutional

requirement by prohibiting references of motions to

suppress, or simply requires a hearing of the testi-

mony if an objection is made to a recommended find-

ing, is a matter appropriately resolved by the lower

court through its rulemaking power.

The conviction is reversed and remanded for a

new hearing on the motion to suppress before the

district court judge.

A true Copy:

Teste:

Crerk of the United States Court of

Appeals for the Seventh Circuit

25a

APPENDIX B

OPINION BY JUDGE SPRECHER

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

February 6, 1979

Before

Hon. Walter J. Cummings, Circuit Judge

Hon. Robert A. Sprecher, Circuit Judge

Hon. Harlington Wood, Jr., Circuit Judge

No. 78-1350

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v8.

HERMAN RADDATZ, DEFENDANT-APPELLANT

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division ~

Crim. No. 77 CR 325—Nicholas J. Bua, Judge

This cause came on to be heard on the transcript

of the record from the United States District Coyrt

for the Northern District of Illinois, Eastern Divi-

sion, and was argued by counsel.

26a

On consideration whereof, it is ordered and ad-

judged by this court that the judgment of the said

District Court in this cause appealed from be, and

the same is hereby REVERSED, and REMANDED,

for a new hearing on the motion to suppress before

the District Court judge, in accordance with the

opinion of this court filed this date.

27a

APPENDIX C

CORRECTED on May 22, 1979

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

May 4, 1979

Before

Hon. Walter J. Cummings, Circuit Judge

Hon. Robert A. Sprecher, Circuit Judge

Hon. Harlington Wood, Jr., Circuit Judge

No. 78-1350

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v8.

HERMAN RADDATZ, DEFENDANT-APPELLANT

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 77 CR 325—Judge Nicholas J. Bua

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing in bane filed in the above-

entitled cause by the plaintiff-appellee and the re-

sponse filed by the defendant-appellant, a vote of the

28a

active members of the Court have voted to deny a

rehearing in banc.* All of the judges on the original

panel have voted to deny the petition for rehearing.

IT IS ORDERED that the aforesaid petition for

rehearing be, and the same is hereby, DENIED.

Judge Philip W. Tone did not participate in the considera-

tion of the petition for rehearing in banc.

* Chief Judge Fairchild and Judge Pell voted to grant re-

hearing in banc.

29a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 77 CR 325

UNITED STATES OF AMERICA, PLAINTIFF

v8.

HERMAN L. RADDATZ, DEFENDANT

Before Honorable Nicholas J. Bua, Judge

United States District Court

ORDER

The defendant, Herman L. Raddatz, was indicted

for violation of Title 18, United States Code, Sec-

tion 922(h)(1). The cause was tried to the court

without a jury on stipulated facts. Prior to ruling,

the court must decide two pending motions. They

are: 1) defendant’s motion to dismiss the indict-

ment; and, 2) defendant’s motion to strike surplus-

age from the indictment.

18 U.S.C. § 922(h) (1) provides in pertinent part:

(h) It shall be unlawful for any person—

(1) who is under indictment for, or who

has been convicted in any court of a crime

punishable by imprisonment for a term ex-

ceeding one year; to receive any firearm or

ammunition which has been shipped or

transported in interstate commerce.

30a

The maximum penalty for a violation of § 922(h) (1)

is five years imprisonment and a $5,000 fine.

18 U.S.C., Appendix, § 1202 provides in pertinent

part:

Any person who—(1) has been convicted .. .

of a felony, and who receives . . . in commerce

. any firearm shall be fined not more than

$10,000 or imprisoned for not more than two

years, or both.

“Receipt” for purposes of both § 922 and § 1202

covers the intrastate receipt of a firearm that pre-

viously had moved in interstate commerce. Barrett

v. United States, 423 U.S. 212, 96 S.Ct. 498, 46

L.Ed. 2d 450 (1976); United States v. Bass, 404

U.S. 336, 92 S.Ct. 515, 30 L.Ed. 488 (1971).

Defendant moves to dismiss the indictment herein

on grounds that the government’s choosing to prose-

cute under § 922, with its attendant greater penalty,

violates his Fifth Amendment rights to due process

and equal protection of the law. See Weinberger v.

Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S.Ct. 1225, 53

L.Ed. 2d 514 (1975). Moreover, defendant con-

tends that permitting the United States Attorney

to choose between two statutes proscribing identical

conduct but with different permissible penalty ranges

also violates the constitutional principle of separa-

tion of powers.

» The government, while agreeing that both § 922

and § 1202 proscribe identical conduct relative to

the receipt of firearms by felons, argues that the re-

nA NER anton NTH

3la

turn of the instant indictment constitutes a proper

exercise of prosecutorial discretion.

In light of the fact that Congress enacted both

statutes simultaneously and without relevant change

by different titles of the Gun Control Act of 1968,

this court cannot now say that it was the intent of

Congress that § 922(h) was to be comprehensive to

the exclusion of § 1202(a)(1). See United States v.

Phillips, 522 F.2d 388, 393 (8th Cir. 1975). Furth-

ermore, our Supreme Court, both in United States v.

Bass, 404 U.S. 336, 343 n.10 (1971) and in Barrett

v. United States, 423 U.S. 212, 223 (1976), did not

note any constitutional difficulty in the coexistence

of § 922(h) and § 1202(a) (1).

Therefore, the court holds: 1) that the govern-

ment’s choosing to prosecute under § 922, with its

attendant greater penalty, does not violate defend-

ant’s Fifth Amendment rights to due process and

equal protection of the law; and 2) that permitting

the United States Attorney to choose between two

coexistent statutes which proscribe identical conduct

relative to the receipt of firearms by felons, but with

different. permissible penalty ranges, does not con-

stitute an abuse of prosecutorial discretion nor vio-

late the principle of separation of powers. Accord-

ingly, defendant’s motion to dismiss the indictment

is denied.

Defendant also moves to strike surplusage from

the indictment.

Rule 7(c)(1) Fed. R. Crim. P. provides that an

indictment shall be a plain, concise and definite writ-

32a

ten statement of the essential facts constituting the

offense charged.

An essential element of 18 U.S.C. § 922(h) is that

the individual receiving the firearm had previously

been convicted of a crime punishable by imprison-

ment for a term exceeding one year.

In the instant indictment, the government has set

forth eight prior felony convictions of the defendant.

In light of the fact that one or more of the con-

victions specified in the indictment may prove to be

defective; and that the government is not limited to

establishing only one prior conviction where there

has been a plurality of convictions; and since proof

of a prior conviction is a requisite element of the of-

fense charged, the court holds that the setting forth

of more than one prior felony conviction in the in-

dictment comports fully with Rule 7(c)(1) and

does not constitute surplusage. Accordingly, defend-

ant’s motion to strike surplusage is denied.

As hereinbefore set forth, the instant cause was

tried to the court without a jury on stipulated facts.

Based upon the facts as stipulated, the court finds the

defendant, Herman L. Raddatz, guilty as charged

in the indictment beyond a reasonable doubt.

/s/ Nicholas J. Bua

NICHOLAS J. BUA

United States District Court

DATED: Feb. 6, 1978

33a.

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 77 CR 325

UNITED STATES OF AMERICA, PLAINTIFF

vs.

HERMAN L. RADDATZ, DEFENDANT

Before Honorable Nicholas J. Bua, Judge

United States District Court

ORDER

Before the court is defendant’s motion objecting

to the referral of defendant’s motion to suppress to

United States Magistrate Carl Sussman for hearing.

Defendant contends that the reference to the Mag-

istrate violates Article III of the United States Con-

stitution and Title 28 United States Code § 636(b)

(4).

In that respect, the court holds that Title 28 United

States Code § 636(b)(1)(B) authorizes a district

judge to designate a magistrate to conduct hearings,

including evidentiary hearings, and to submit to the

court proposed findings of fact and a recommenda-

tion for the disposition of a motion to suppress evi-

dence, notwithstanding that pursuant to § 636(b)

(4) this court has not yet adopted any local rules

outlining the procedures to be employed by the mag-

34a

istrate in the performance of his duties. Section 636

(b) (4), the provision for implementing local rules, is

merely for the purpose of insuring that there will

be an equitable allocation of magistrate services

among the various judges of the district court and

to provide adequate notice to the bar as to the ex-

tent of use of magistrates by the court. There is no

issue in this regard raised by the defendant.

Therefore, having read the transcript of the hear-

ing on the motion to suppress, the proposed findings

of fact, conclusions of law, and memoranda in sup-

port thereof as submitted by both sides, the report

and recommendation of the magistrate, and after

hearing the arguments of the parties, the court here-

by accepts the recommendation of the magistrate and

adopts the Government’s Proposed Findings of Fact

as the court’s findings. The court further finds that

the three statements given by the defendant and

sought to be suppressed were made voluntarily.

Accordingly, the defendant’s motion objecting to

the referral of the motion to suppress will be denied

and the motion to suppress the statements will also

be denied.

ENTER:

/s/ Nicholas J. Bua

NICHOLAS J. BUA

United States District Court

DATED: December 8, 1977

A RN 8 A Ee OR

35a

APPENDIX F

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 77 CR 325

UNITED STATES OF AMERICA

Vv.

HERMAN L. RADDATZ

STIPULATION

IT IS HEREBY STIPULATED by and among

THOMAS P. SULLIVAN, United States Attorney

for the Northern District of Illinois, Eastern Divi-

sion, and defendant, HERMAN L. RADDATZ, indi-

vidually and by and through his attorney, JOAN B.

GOTTSCHALL, as follows:

1. The evidence presented at the hearing on de-

fendant’s motion to suppress is adopted by the par-

ties as if presented at the trial of this cause.

2. If Chicago Police Sergeant Monroe Vollich

were called to testify, he would testify that on Au-

gust 8, 1976, he responded to a radio message con-

cerning a robbery in progress; that as he arrived

at the scene, he observed defendant Herman L. Rad-

datz with what appeared to be a gun in his hand;

36a

that he ordered Raddatz to drop the gun; that Rad-

datz appeared to do so; that Raddatz was placed

under arrest for unlawful use of a weapon, a viola-

tion of Illinois law; and that subsequent to the ar-

rest of Raddatz he recovered from the area where

Raddatz had been standing a Titan, .25 caliber, semi-

automatic pistol, serial number A21803 which Ser-

geant Vollich subsequently inventoried with the Chi-

cago Police Department.

3. That Special Agents Paul G. Russell and Rich-

ard S. McCulloch, if called to testify respecting their

interviews with defendant Raddatz on November 19,

1976 and January 12, 1977 (which interviews are

more fully described in their testimony at the hear-

ing on defendant’s motion to suppress) would testify

that defendant made statements to them as follows:

a. November 19, 1976: “Raddatz stated he re-

membered the night of August 8, 1976, when he was

arrested by Sergeant Vollich and Officer Bach. He

stated he and his wife had gone to his father’s resi-

dence at 2514 North Kedzie and he ran into James

D. Batson. He stated he had had trouble with Batson

before and that they became involved in a fight. He

stated he took a pistol from Batson and was pistol

whipping him when the police arrived.”

b. January 12, 1977: “On January 12, 1977, Rad-

datz was again interviewed and he retracted his

statement of November 19, 1976. Raddatz said that

he had not taken the subject firearm from James D.

Batson on August 8, 1976, as he had previously

a a a 7

87a

stated, but that he had received the subject firearm

from his half brother, Art Raddatz, on or about

August 1, 1976 to August 8, 1976, in Chicago, II-

linois.”

4. If called to testify as a witness in this case,

a records custodian from the Firearms Import and

Export Company, Miami, Florida would testify that

his company’s records, kept in the ordinary and

regular course of its business, indicate that a Titan,

.25 caliber, semi-automatic pistol, serial number

A21803, was manufactured in Miami, Florida.

5. The following exhibits would be offered into

evidence:

(1) Titan, .25 caliber, semi-automatic pistol,

serial number A21803;

(2) Eight certified copies of prior felony con-

victions of Herman L. Raddatz;

(3) Business records, indicating that the pistol

above was manufactured in Florida;

(4) Certified copy of an ATF records search,

indicating that no records exist, showing

Herman L. Raddatz to be relieved from

38a

prior felon disabilities regarding receipt of

firearms. (Attached hereto.)

/s/ Herman L, Raddatz,

HERMAN L. RADDATZ

Defendant

/s/ Joan B. Gottschall

JOAN B. GOTTSCHALL

Attorney for Defendant

Raddatz

THOMAS P. SULLIVAN

United States Attorney

/s/ Jeffrey J. Kent

JEFFREY J. KENT

Assistant U.S. Attorney

39a

APPENDIX G

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

77 CR 325

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

HERMAN RADDATZ, DEFENDANT

REPORT AND RECOMMENDATION

TO THE HONORABLE GEORGE N. LEIGHTON,

one of the Judges of the United States District

Court for the Northern District of Illinois.

On June 17, 1977, pursuant to Local Rules, this

matter was assigned to my calendar.

I have considered all pleadings related to this

matter and transmit herewith the following:

1. The Court File;

2. Transcript of Proceedings at Hearing held

on July 26, 1977 through July 28, 1977;

3. Defendant’s Proposed Findings of Fact and

Memorandum in Support of his Motion to

Suppress; and,

4. Government’s Proposed Findings of Fact and

Law Regarding Suppression Hearing Con-

ducted in the Magistrate’s Court Between

July 26, 1977, and July 28, 1977.

40a

RECOMMENDATION:

The three statements sought to be suppressed by

the defendant occurred on August 8, 1976, November

19, 1976, and January 12, 1977.

Statement of August 8, 1976

From the defendant’s own assertion, the admissi-

bility of this statement depends upon the credibility

of the testimony given by the Chicago Police Officer.

I find that the testimony of Officer Monroe Vollick

is credible, that the arrest was legal because made

upon probable cause; and that defendant was ad-

vised of his constitutional rights at the time. Hav-

ing waived his constitutional rights, the aforesaid

statement is voluntary and is admissible.

Statement of November 19, 1976

I find that the Miranda warning was given and

the statement made by defendant was voluntary. He

was not in custody at the time; the statement was

given at his home after being advised of his consti-

tutional rights prior to making any statement.

Statement of January 12, 1977

I find that Raddatz initiated the voluntary mak-

ing of the statement by telephoning the office of

Alcohol, Tobacco and Firearms, stating that he wish-

ed to make a further statement. Despite the non-

custodial setting, Agent Russell advised defendant of

4la

his constitutional rights, prior to the defendant mak-

ing said statement.

From the testimony I find that there is no merit

to the defendant’s Motion to Suppress; that the de-

fendant Raddatz, who has eight prior felony convic-

tions (TR 123-25), knowingly and _ intentionally

waived his constitutional rights and thereafter pro-

vided statements on November 19, 1976, and Janu-

ary 12, 1977.

I find the testimony of the Alcohol, Tobacco and

Firearms agent more credible, with reference to

other matters raised by defendant; I find that Fed-

eral agents never advised Raddatz that charges

against him would be dismissed, if he cooperated.

Accordingly, I respectfully recommend that this

Court deny defendant’s Motion to Suppress and that

the Court adopt the Government’s Proposed Findings

of Fact as the Findings of the District Court.

Respectfully submitted,

/s/ Carl B. Sussman

CARL B. SUSSMAN

United States Magistrate

Dated: November 1, 1977

ec: Thomas P. Sullivan

United States Attorney

Jeffrey J. Kent

Assistant United States Attorney

Joan Gottschall

Attorney for Defendant

Federal Defender Program

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