Petitioners Brief — United States v. Raddatz

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He. 798 DEC 4 1979

! eK JR, CLERK

Iu the Supreme Court of the Uuited States

OCTOBER TERM, 1979

UNITED STATES OF AMERICA, PETITIONER

Vv.

HERMAN RADDATZ

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 20530

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Constitutional provisions and statute involved..

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II.

The Federal Magistrates Act permits a

district court to make a “de novo deter-

mination” of a suppression motion based

on the proceedings before a magistrate

and without rehearing the testimony of

RAREST EGERE cee Scr ee aC

i Ta

B. A “de novo determination” of a

suppression motion does not entail

a second evidentiary hearing ........

Reference of a suppression motion to

a magistrate for an evidentiary hearing

in accordance with 28 U.S.C. 636(b)

(1)(B) and (C) does not violate Arti-

cle III of the Constitution -...................

A. A motion to suppress evidence in a

federal criminal prosecution need

not be heard in a court created

under Article ITT ............................

Argument—Continued

B. The district court’s de novo deter-

mination of the suppression motion

in accordance with Section 636 (b)

(1)(C) satisfies the requirements

of Article III ....

III. Determination of a suppression motion

in accordance with 28 U.S.C. 636(b)

(1) (B) does not deprive a defendant of

Gab. prec 46 WNW on...

ir EE in no

B. The court of appeals erroneously

equated respondent’s interest in the

outcome of the suppression hearing

with his interest in the criminal

OUUNE NE Stee oe

C. Determination of a suppression mo-

tion in accordance with Section 636

(b) (1) (B) sufficiently minimizes

the risk that unconstitutionally ob-

tained evidence will be erroneously

admitted at trial

D. Substantial economic and adminis-

trative considerations justify suse

of magistrates to conduct pretrial

evidentiary hearings

Conclusion

CITATIONS

Addington v. Texas, No. 77-5992 (April

Be ED sonic ia iat sianiditirensiicatinse Aa caiteice- cb,

American Insurance Co. v. Canter, 26 U.S.

(1 Pet.) 511

Page

- me

Ill

Cases—Continued Page

Bakelite Corp., Ex parte, 279 U.S. 438... 32

Bowman v. Bordenkircher, 522 F.2d 209.. 40

Bridges v. Wixon, 326 U.S. 186 .............-.- AT

Brinegar v. United States, 338 U.S. 160.... 47

Cafeteria & Restaurant Workers Union,

Local 478 v. McElroy, 367 U.S. 886 ...... 44

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

20; 1979) .. PEON Se «Ss ae COSMET OEY ee 48, 54

Campbell v. United States District Court

for the Northern District of California,

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

a a oto i. ae

Cary v. Curtis, 44 U.S. (3 How.) 236...... 30, 31

Chaunt v. United States, 364 U.S. 350...... 47

Clark v. Uebersee Finanz-Korporation,

Re Ro SE ere eee iets 23

Crowell v. Benson, 285 U.S. 22 -...... 14, 32, 38, 39

Cruz v. Hauck, 515 F.2d 322, cert. denied,

ON AT, Fa er 40

Davis v. North Carolina, 384 U.S. 787...... 25

DeCosta v. Columbia Broadcasting Sys-

tem, Inc., 520 F.2d 499, cert. denied,

rE. SRRAPEIR Recenter neem rene . 85, 41

District of Columbia v. Carter, 409 U.S

gt SERRE err ar a ee OE 31

Elkins v. United States, 364 U.S. 206 ...... 46

Ellis v. Buchkoe, 491 F.2d 716 .................. 41

Estep v. United States, 327 U.S. 114........ 32, 36

Gagnon v. Scarpelli, 411 U.S. 778 -....:...... 55

Glidden Co. v. Zdanok, 370 U.S. 580 ........ 31

Greenholtz v. Inmates of the Nebraska

Penal and Correctional Complex, No.

78-201 (May 29, 1979) .....................-.... 44, 45

Griffin v. Illinois, 351 U.S. 12 .................. 51

IV Vv

31, 33, 34, 35

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

BT DY | ececcistnninpinchistaibicieiaeaecmene 45

Patterson v. New York, 482 U.S. 197 _.... 55

Cases—Continued Page Cases—Continued Page

Hill v. Jenkins, 603 F.2d 1256 .................. 40 Peterson, Ex parte, 253 U.S. 300 ..........--.- 39

Holiday v. Johnston, 313 U.S. 342 ............ 39 Reconstruction Finance Corp. v. Bankers

Jackson v. Denno, 378 U.S. 368 ...........- 42, 48, 49 Trust Co., 318 U.S. 168 -........-------------- 32

Jarecki v. G. D. Searle & Co., 367 U.S. Reiter v. Sonotone, No. 78-690 (June 11,

i CE SOMES ANAT ETE OOO a a 23 GIN EE a ee 23

Lego v. Twomey, 404 U.S. 477.......... 16, 46, 47, 49 Richardson v. Perales, 402 U.S. 389 ...... 52, 55, 57

Lockerty v. Phillips, 319 U.S. 182 ............ 31 Rogers v. Richmond, 365 U.S. 534 .......... 46, 48

Loral Corp. v. McDonnell Douglas Corp., Ross, In re, 140 U.S. 458 -......-.----------------- 32, 33

OG Fe Bae ss elie 40, 44 Roviaro v. United States, 353 U.S. 58 ...... 48

Lorillard v. Pons, 434 U.S. 575 cccenn-- 28 St. Joseph Stock Yards Co. v. United

Mackey v. Montrym, No. 77-69 (June 25, eee ee Oe, O68 32

PE: aainiienbinisesnccihindasiitinpsnaabiemiclniana aes 45 Schneiderman v. United States, 320 U.S.

Mathews v. Eldridge, 424 U.S. 319..15, 44, 48, 55 es sts sies AT

Mathews v. Weber, 423 U.S. 261 ........ 19, 23, 38, Sheldon v. Sill, 49 U. S, (8 How.) 440 ...... 31

40, 56 Sick v. City of Buffalo, 574 F.2d 689 ...... 40

McCray v. Illinois, 8386 U.S. 300 ............... 48 Speiser v. Randall, 357 U.S. 518 ...........-.. 51

McGee v. United States, 402 U.S. 479........ 36 Stone v. Powell, 428 U.S. 465 |........------- 46

McKane v. Durston, 158 U.S. 684 -........... 51 Swain v. Pressley, 430 U.S. 372 ....... _....81, 38, 34

Mildner v. Gulotta, 405 F. Supp. 182, aff’d Testa v. Katt, 330 U.S. 386 .........--.-.-------- 33

mem, G55 U8. SOP oon 44,53 United States v. Batchelder, No. 78-776

Morgan v. United States, 298 U.S. 468... _ 17, 52 ere eee 10

Morrissey v. Brewer, 408 U.S. 471 ............ 44 United States v. Bergera, 512 F.2d 391... 54

Muhich v. Allen, 603 F.2d 1247 ................ 22, 40 United States v. Edwards, 602 F.2d 458... 40

Myers v. Bethlehem Shipbuilding Corp., United States v. Janis, 428 U.S. 438 ........ 16, 45

DD iiisccmate ce er 39 United States v. Leiberman, No. 78-1465

Noorlander v. Ciccone, 489 F.2d 642 ........ 41 (1st Cir. Nov. 7, 1979) -.....--.--------------- 22

O’Donoghue v. United States, 289 U.S. United States v. Matlock, 415 U.S. 164... 47

IP chi i annnscleitioenainten 34 United States v. Nixon, 418 U.S. 688 ...... 30

Orand v. United States, 602 F.2d 207....20-21, 22 United States v. Peltier, 422 U.S. 581. ...... 45-46

Palmore v. United States, 411 U.S. 389.... 13, 30, United States v. Raines, 362 U.S. 17 ........ 54

United States v. Whitmire, 595 F.2d 1303,

petition for cert. pending, No. 79-375.. 22, 44,

United States ex rel. Graham v. Mancusi,

457 F.2d 463 53, 54

Act of March 3, 1875, ch. 187, Section 1,

18 Stat. 470 ....... mt 31

VI VII

Cases—Continued Page Constitution, statutes, rules

United States ex rel. Henderson v. Brier- and regulations—Continued Page

ley, 468 P.2d 1198 —-aavn-nnone-e-nn-- 40 Federal Magistrates Act, 28 U.S. 631

Universal Camera Corp. v. NLRB, 340 aaa 11

MPAs NE. adh cakes ncitiaseseimenepaisaedloeceas 17, 52, 53

Utica Mutual Insurance Co. v. Vincent, re dsp a 4 + inte ance cercaceoumnmamien ie

F. : s. S.C. 6B1 (I) .....-.---i------e--ncereenoeeee

al oa dau Secs seen 28 U.S.C. (1970 ed.) 636(a) .. 20

Weinberger v. Hynson, Westcott & Dun- = oan aa 636 (b) ee th :

ming, Ine., 412 U.S. 609 eee 23 oo geo 4 eaeermerea cia”

Williams v. United States, 289 U.S. 553..... 82 See aki 1) rA) seeeenensnencenenens dei an

Wingo v. Wedding, 418 U.S. 461 ....14, 20, 23-24, 7 eae ey ee “ty Le aa

40, 44, 56 5.0. GEG(D) (2) (5) »--nnennnnennnn-—

Winship, In re, 897 U.S. 858 -.....--c0-co--0---- 46 28 U.S.C. a “ (1) (OC) ------------------ “wag”

Wolff v. McDonnell, 418 U.S. 589 ............ 44 ee SRD lesen

Woodby v. INS, 385 U.S. 276 .............------ 47 Speedy Trial Act of 1974, 18 U.S.C. 3161

Zwickler v. Koota, Be Wht WO eckecek es. 31 et OO aah ciate seins cialppaindiineneoneedy 56

Biss , Pub. L. No. 94-577, 90 Stat. 2729 -.......... 20

Constitution, statutes, rules and regulations: Pub. L. No. 96-82, 98 Stat. 643 .............. 20

- United States Constitution: fio ge der ISIS Ce eT ,

Abie Tn 18, 82, 83, 84, 37 18 USC. App. 1202(8) 0

Article I, Section 8, clause 9 .............. 35 33 U.S.C. 921(b) (8) 51

Article I, Section 8, clause 17 -........... 35 Fed. R. Evid. 104 a 47

Article TIT -----ee------seeeeeeeeenseeeee passim Fed. R. Evid. 1101(d)(1) 47

— on Seckion I aannnnnvnncnnoneoonnee 2, 29, 30 Local Magistrate Rule 1.01B(8), United

Article III, Section 2 —................- 29, 33 States District Court for the Northern

Se I cen nmeneennnen 46 District of linois -........------0eeee---- 10

Fifth Amendment, Due Process 17 CFR. 10.104 51

5 etl ag aE nT Po passim a ee oO OR aaa aa aiemrnane arm cate

17 C.F.R. 201.17 (2) (2). -neecncecoeecoeeeoeesoveeoe- 51

Sixth Amendment -—--.-------——--— 39 20 C.F.R. 404.989(8) ccoccccccccccecceeeseeeeeeeeee 51

Seventh Amendment ae... 39 20 C.F.R. 404,950(C) cecccccccoccceseesseeeeeeeeeen 51

Act of March 2, 1799, ch. 48, Sections 14, , tk £ Se. 3 | Cy} EARseneneuemneNer 51

15, 20 and 28, 1 Stat. 733-740 0... 33 Be ea. CEI eaicebnicenhtninneonecnnminnsccensien 51

VIII

Miscellaneous:

1978 Annual Report of the Director of the

Administrative Office of the United

Shates COmree cncccccccccninncedeee

1979 Annual Report of the Director of

the Administrative Office of the United

States Courts. ........1sscssssee

P. Bator, P. Mishkin, D. Shapiro, H.

Wechsler, Hart and Wechsler’s The

Federal Courts and the Federal System

(2d ed. 1978) <1... esas

Comment, An Expanding Civil Role For

United States Magistrates, 26 Am. U.

L. Rev. 66 (1976)

122 Cong. Rec. 35182-35183 (1976) ........

2 K. Davis, Administrative Law Treatise

(T9GB) ...2-.-.-.-0:1:saiineessiedsmasnesuaeanennn

4 K. Davis, Administrative Law Treatise

Ci.) ORME NE

M. Farrand, The Records of the Federal

Convention of 1787 (1966) 0.0.2.2...

Federal Magistrates Act: Hearings on

S. 3475 and S. 945 Before the Subcomm.

on Improvements in Judicial Machinery

of the Senate Comm. on the Judiciary,

89th Cong., 2d Sess. and 90th Cong., 1st

Sess. (1966-1967) 2. ......cccccccccccsscserns

Federal Magistrates Act: Hearings on

S. 945, etc., Before Subcomm. No. 4 of

the House Comm. on the Judiciary, 90th

Cong., 2d Sess. (1968) 200...

The Federalist Nos. 80-82 (A. Hamilton)..

W. Gellhorn & C. Byse, Administrative

Law (6th ed. 1974)

Page

30-31

Miscellaneous—Continued Page

Hearings on Magistrates Reform Before

the Subcomm. on Courts, Civil Liber-

ties, and the Administration of Justice

of the House Comm. on the Judiciary,

95th Cong., Ist Sess. (1977) ......---.-.---- 24, 28

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

SG NTI, thneecttetnediebdlicncisietnecstoceninocnced passim

H.R. Rep. No. 96-287, 96th Cong., 1st

A | oo 24

Jurisdiction of United States Magistrates:

Hearing on S. 1283 Before the Sub-

comm. on the Improvements in Judi-

cial Machinery of the Senate Comm.

on the Judiciary, 94th Cong., 1st Sess.

ES ESS 24, 26, 27, 38, 56, 57

Magistrate Act of 1977: Hearings on

S. 1612 and S. 1613 Before the Sub-

comm. on Improvements in Judicial

Machinery of the Senate Comm. on the

Judiciary, 95th Cong., 1st Sess. (1977)... 24, 28

Note, Masters and Magistrates in the

Federal Courts, 88 Harv. L. Rev. 779

alc iooliciacaisebeditianatiiannttinaennimnepenace 39, 41

Note, Proposed Reformation of Federal

Habeas Corpus Procedure: Use of Fed-

eral Magistrates, 54 Iowa L. Rev. 1147

Err 41

S.1288, 94th Cong., 2d Sess. (1975) -....... 26

S. Rep. No. 371, 90th Cong., 1st Sess.

UR re SEAS rR ac Co 20, 24

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

EE dniatinpattnbatericindiediadinenennbennnipinaaieians passim

S. Rep. No. 96-74, 96th Cong., 1st Sess.

(| RES RANE Riana 24, 28

Miscellaneous—Continued Page

Shapiro, Federal Habeas Corpus: A Study

in Massachusetts, 87 Harv. L. Rev. 321

OEE, Siciechlicagslechisdiuciceristaphcanblanipbdots Sioa itidhione 41

Silberman, Masters and Magistrates Part

I: The English Model, 50 N.Y.U.L.Rev.

i pc SR IRE SEI IT SON oe 38

Silberman, Masters and Magistrates Part

II: The American Analogue, 50 N.Y.

U.L. Rev. 1297 (1975) 0002... 34, 38, 39, 41

Warren, Federal Criminal Laws and the

State Courts, 38 Harv. L. Rev. 545

CS elidel elie ace ici: 33

Warren, New Light on the History of the

Federal Judiciary Act of 1789, 37 Harv.

eh Oe MI CD ctssceeseeceninsnsacinneansaes 31

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-8

UNITED STATES OF AMERICA, PETITIONER

HERMAN RADDATZ

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeais (Pet. App. 1a-

24a) is reported at 592 F.2d 976. The memorandum

orders of the district court (Pet. App. 29a-34a) are

not reported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

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

petition for rehearing was denied on May 4, 1979

(1)

(Pet. App. 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 including

July 3, 1979. The petition was filed on that date and

was granted on October 1, 1979 (A. 18). The juris-

diction of this Court rests on 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 recommen-

dations, violates the Constitution.

CONSTITUTIONAL PROVISIONS AND

STATUTE INVOLVED

1. Article III, Section 1 of the United States Con-

stitution provides:

The judicial Power of the United States, shall

be vested in one supreme Court, and in such in-

ferior Courts as the Congress may from time in-

time ordain and establish. The Judges, both of

the supreme and inferior Courts, shall hold their

Offices during good Behavior, and shall, at stated

Times, receive for their Services, a Compensa-

tion, which shall not be diminished during their

continuance in Office.

2. The Fifth Amendment to the United States

Constitution provides in pertinent part:

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

denying rehearing on May 22, 1979.

No person shall be * * * deprived of life, lib-

erty, or property, without due process of

we? >

3. 28 U.S.C. 636(b) (1) provides in pertinent part:

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 mo-

tion * * * 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 er-

roneous 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 rec-

ommendations for the disposition, by a judge

of the court, of any motion excepted in sub-

paragraph (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, reject,

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

recommendations made by the magistrate. The

judge may also receive further evidence or re-

commit 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 Dis-

trict 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 (Pet. App. la n.1).

1. Prior to trial, respondent moved to suppress

several incriminating statements that he made to the

Chicago police and agents of the Bureau of Alcohol,

Tobacco and Firearms on the ground that the state-

ments had been induced by promises of immunity in

return for his cooperation. Over respondent’s objec-

tion, the district court referred the suppression mo-

tion to a magistrate for an evidentiary hearing in

accordance with the Federal Magistrates Act, 28

U.S.C. 636(b)(1)(B) (Pet. App. 4a).

2 The parties agreed to allow the court to try respondent

on the 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 (Pet. App. 35a-38a).

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 respondent

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 mat-

ter and that he had brought a gun with him to pro-

tect 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 (Pet. App. 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 understood

those rights, the agents told respondent that the gun

3 At the hearing on the motion to suppress, respondent

repeatedly denied making any statement to the arresting

officers. One of the police officers, whose testimony was cor-

roborated by the contemporaneous arrest report, specifically

refuted this assertion, stating that respondent made the

same incriminatory remarks both in the patrol car and then

subsequently at the station house (Tr. 3-5, 14-16, 21, 31-32).

in question had at one time been owned by a West

Virginia man who had been slain in an unsolved

homicide. The agents sought to establish the gun’s

chain of possession since that time.‘ Respondent re-

marked that he had seized the pistol from Batson

during the altercation on August 8 and that he did

not know how Batson had obtained the weapon (Pet.

App. 3a, 36a; Tr. 33-35, 38-42, 106-107, 110, 141,

174-178, 195-196, 213-215, 225-226).

In light of respondent’s new explanation of how

he had acquired the firearm, the agents asked him

to describe and help them locate Batson. They

told respondent that if he assisted them in finding

Batson and tracing the gun they would inform the

United States Attorney of his cooperation in the

event he subsequently was prosecuted. Respondent

replied that he would think about the matter, and

he took Agent Russell’s telephone number in case he

decided to cooperate. Although respondent further

claimed at the hearing that the agents promised that

if he cooperated his impending indictment would be

dismissed, both agents testified that no such promise

was made (Pet. App. 5a-7a, 41a; A. 16-17; Tr. 41-

42, 45, 161, 165, 179, 184-185, 196-197, 225, 236-

237).

On January 12, 1977, respondent telephoned the

agents and requested a meeting, explaining that he

‘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). See also

Tr. 175-176, 215.

wanted to “straighten out something about the gun”

(Tr. 179). The agents picked up respondent at his

home and drove him back to their office. After the

agents had again advised respondent of his constitu-

tional rights, he retracted his prior story and admitted

that he had not taken the gun from Batson on August

8, but in fact had obtained it from his half-brother

approximately one week earlier. In addition, respond-

ent describe in detail his knowledge of the prior his-

tory of the gun (Pet. App. 3a, 36a-37a; Tr. 36-38,

162, 179-180, 186-187, 197-199) .°

At the suppression hearing, respondent admitted

that his statement on November 19 was false and

that on January 12 he had made the inculpatory

statements attributed to him by the agents. He

claimed, however, that he had incriminated himself

on January 12 only after ascertaining that the agents’

alleged immunity offer of November 19 was still in

effect. In contrast, the agents testified that at no time

was respondent offered immunity. Rather, the agents

claimed that, following respondent’s volunteered ad-

missions, they asked him to assist in locating the

persons who had previously possessed the firearm or

any other persons involved in illegal gun dealing.

Respondent indicated that he was willing to cooperate

but that he needed money to make contact with gun

sources. Accordingly, the agents gave respondent $10

5 Respondent’s half-brother had apparently purchased the

gun from Bobby Mason in exchange for drugs. Mason, in

turn, had obtained the gun from two persons who allegedly

had stolen it somewhere in the South (Tr. 141-144, 179).

and then accompanied him on an unsuccessful attempt

to purchase firearms (Pet. App. 3a, 5a, 36a-37a, 41a;

A. 16-17; Tr. 103-108, 110-113, 123, 161-162, 179-

180, 184-188, 197-202, 230, 236-237).°

Finally, on January 14, 1977, respondent returned

to the ATF office, this time accompanied by his for-

mer wife and her children. Agent McCulloch and his

supervisor informed respondent that his case had been

referred to the United States Attorney for prosecu-

tion and that upon federal indictment the state

charges against him would be dropped.? The ATF

agents also discussed with respondent the possibility

of his becoming an informant and again promised

that any cooperation in that regard would be brought

to the attention of the United States Attorney. Re-

spondent 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. However, respondent thereafter

never produced any information, arranged any fire-

arms transactions, or otherwise acted as an inform-

ant (Pet. App. 5a-6a; A. 17; Tr. 81-82, 121, 200-

208, 207, 222-224, 237-238, 242-248).

® Respondent claimed to be looking for a firearm dealer

named Ochenbach. Respondent never set up a meeting be-

tween the agents and Ochenbach, however, and the agents

were unable to discover whether Ochenbach actually existed

(Tr. 199-201, 228-229).

7 The state charges against respondent were dismissed on

February 22, 1977 (Tr. 157, 249). Respondent’s federal in-

dictment was filed on March 1, 1977 (Pet. App. 3a).

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

suppression motion in accordance with 28 U.S.C. 636

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

spondent knowingly, intelligently and voluntarily

made inculpatory statements on three separate oc-

easions, after having been 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 respond-

ent (who had previously been convicted of eight dif-

ferent felonies, including attempted murder and

armed robbery), and he specifically rejected respond-

ent’s claim that the agents had promised him im-

munity from prosecution in return for his coopera-

tion. Accordingly, the magistrate recommended that

respondent’s motion to suppress his statements of

August 8 and November 19, 1976, and January 12,

1977, be denied (Pet. App. 39a-41la; Tr. 123-124).

3. Respondent filed objections to the magistrate’s

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

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

termination of respondent’s suppression motion based

on a review of the transcript of the evidentiary hear-

ing before the magistrate, the magistrate’s proposed

findings and recommendations, and the submissions

of counsel. The court accepted the recommendation

of the magistrate and expressly adopted the govern-

ment’s proposed findings of fact as its own (Pet.

App. 34a; A. 15-17). In particular, the court con-

cluded that respondent had voluntarily chosen to

make statements to the agents on the three days in

question. It therefore denied the motion to suppress

(Pet. App. 33a-34a).°

4. The court of appeals reversed and remanded

(Pet. App. la-24a). The court first addressed re-

spondent’s statutory claims. It concluded that both

the local court rules® and 28 U.S.C. 636(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).

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

miss the indictment (Pet. App. 29a-31la). Respondent errone-

ously 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 the former carries a lesser maxi-

mum penalty than the latter. See United States v. Batchelder,

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

* 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 conduct of pretrial proceedings” in a criminal case. The

court of appeals construed this rule to cover the reference of

a motion to suppress.

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 recom-

mendation, reference of a suppression motion to a

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

is not an unconstitutional delegation of judicial au-

thority in violation of Article III (Pet. App. 14a).

The court of appeals held, however, that where con-

flicting evidence is presented at a suppression hear-

ing, the defendant is deprived of due process if the

district court denies his motion to suppress without

rehearing the controverted testimony. In the court of

appeals’ view, at least where “credibility is crucial to

the outcome,” a “district court cannot constitutionally

exercise its discretion 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).”°

SUMMARY OF ARGUMENT

As the court of appeals concluded, the pretrial

proceedings in this case complied with the terms of

the Federal Magistrates Act, 28 U.S.C. 631 et seq.

1° The court of appeals denied the government’s petition

for rehearing en banc on May 4, 1979, with two judges dis-

senting (Pet. App. 27a-28a & n.*).

The district court properly designated a magistrate

to conduct an evidentiary hearing regarding respond-

ent’s suppression motion. Following a full and fair

hearing, the magistrate credited the testimony of

several government agents and recommended that

respondent’s motion to suppress be denied. There-

after the district court made a de novo determination

of the motion by reviewing the evidence adduced be-

fore the magistrate, the magistrate’s report, and the

submissions of the parties. The court concluded that

respondent’s inculpatory statements were made vol-

untarily, and it therefore rejected his suppression

claim.

Nothing in the Act requires a district court to re-

hear testimony previously evaluated by the magis-

trate. Section 636(b)(1)(C) mandates that the

court make a “de novo determination” of a pretrial

motion, not that it conduct a second, redundant sup-

pression hearing. Moreover, the legislative history

confirms that the “use of the words ‘de novo deter-

mination’ is not intended to require the judge to

actually conduct a new hearing on contested issues.”

H.R. Rep. No. 94-1609, 94th Cong., 2d Sess. 3 (1976).

See also 122 Cong. Rec. 35182-35183 (1976) (re-

marks of Rep. Railsback). Indeed, construing “de

novo determination” to mean “de novo hearing” would

thwart the clear congressional purpose underlying the

Act by discouraging trial judges from using the serv-

ices of magistrates to preside over pretrial hearings

in a substantial number of cases.

The court of appeals correctly rejected respond-

ent’s claim that the Act violates Article III of the

Constitution. Article III permits but does not re-

quire Congress to create lower federal courts. Thus,

as was the situation in the early history of this

country, Congress could allow the non-Article III

state courts to adjudicate all federal questions, in-

cluding those arising in federal criminal prosecutions.

Moreover, this Court has confirmed that Congress, in

the appropriate exercise of its constitutional powers,

may also create Article I or “legislative” tribunals

to conduct federal civil and criminal proceedings.

See Palmore v. United States, 411 U.S. 389 (1973).

Hence, there is no unyielding requirement that all

facets of the federal judicial power be exercised only

by Article III courts.

We believe that, in light of this Court’s decisions,

Congress could have created an independent Article

I magistrate’s court to determine suppression claims.

For example, in Palmore v. United States, supra, the

Court upheld the transfer of entire criminal cases

to Article I tribunals, whereas the Act at most dele-

gates certain pretrial proceedings to magistrates.

Here, as in Palmore, Congress could constitutionally

have created a non-Article III tribunal to aid the

district courts in their more critical work by reliev-

ing the courts of the time consuming responsibility

of presiding over pretrial evidentiary hearings.

In any event, 28 U.S.C. 636(b)(1)(B) and (C)

do not establish an independent magistrate’s court.

Rather, Congress carefully limited the magistrate’s

functions to those traditionally performed by Article

III adjuncts such as masters and commissioners. The

district court retains complete control over its cases,

because it has plenary power to appoint and remove

magistrates and exercises total discretion whether to

assign such pretrial matters to a magistrate as seem

appropriate. In the event of a delegation of a mo-

tion to suppress, the magistrate conducts an evi-

dentiary hearing and tenders proposed findings of

fact and recommendations to the district court. The

court then determines the issue de novo by reviewing

the evidence adduced at the hearing, the magistrate’s

report, and the submissions of the parties.

The magistrate thus acts as an advisory factfinder

within the context of the Article III court. Because

the district court retains “the ultimate adjudicatory

power over [suppression] motions” (H.R. Rep. No.

94-1609, 94th Cong., 2d Sess. 11 (1976)), the fact

that the magistrate and not the court presides over the

evidentiary hearing does not violate Article III. See,

e.g., Crowell v. Benson, 285 U.S. 22, 51-52 (1932)

(“there is no requirement that, in order to maintain

the essential attributes of the judicial power, all de-

terminations of fact in constitutional courts shall be

made by judges”). Accordingly, the overwhelming

weight of authority supports the conclusion that Ar-

ticle III does not preclude a magistrate from conduct-

ing an evidentiary hearing. See, e.g., Wingo v. Wed-

ding, 418 U.S. 461, 486-487 & n.11 (1974) (Burger,

C.J., dissenting) (collecting authorities).

III

The court of appeals erroneously concluded that the

pretrial proceedings in this case deprived respondent

of due process of law. In the court of appeals’ view,

the district court was required either to defer to the

magistrate’s factual finding (a possibility foreclosed

by 28 U.S.C. 686(b) (1) (C)) or to rehear the actual

testimony adduced at the suppression hearing. At

least in the circumstances of this case, where the

district court agreed with the magistrate’s recom-

mendation, that analysis makes little sense. If the

district court had deferred to the magistrate, it ob-

viously would have again accepted the magistrate’s

findings and would have again denied respondent’s

suppression motion. That the court undertook a more

thorough review of the magistrate’s findings and the

record as a whole in ruling on the motion cannot

have deprived respondent of due process.

Due process, of course, is a flexible concept, de-

pendent on the assessment of a number of important

considerations. In Mathews v. Eldridge, 424 U.S.

319, 335 (1976), this Court specified three factors

that should be considered in determining what process

is due in a particular circumstance:

First, the private interest that will be affected

by the official action; Se > 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 safe-

guards; and finally, the Government’s interest,

including the function involved and the fiscal and

administrative burdens that the additional or

substitute procedural requirement would entail.

The procedures set forth in the Act accommodate

these competing interests in a constitutionally permis-

sible way.

First, the court of appeals erroneously equated

the defendant’s interest in the outcome of the sup-

pression motion with that in the criminal trial itself.

A motion to suppress evidence, however, implicates

the defendant’s right to be free from unconstitutional

governmental conduct, and the societal interest in de-

terring such misconduct, and not the defendant’s

more fundamental life, liberty or property interest

in an accurate determination of guilt or innocence.

See, e.g., Lego v. Twomey, 404 U.S. 477, 484-489

(1972); United States v. Janis, 428 U.S. 483, 453-

454 (1976). Accordingly, it is well settled that the

process due at a pretrial suppression hearing is con-

siderably less elaborate than the protections accorded

the defendant at trial. For example, hearsay is ad-

missible at suppression hearings, although it would

not be admissible at trial, and the government’s bur-

den of proof at the pretrial hearing is a preponder-

ance of the evidence rather than beyond a reason-

able doubt.

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 ver-

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

reference of a suppression motion to a magistrate

poses no risk that a defendant will be erroneously

convicted. Particularly where, as here, the district

court adopts the magistrate’s findings, determination

of a suppression motion in accordance with the Act

is substantially reliable. The requirement of a de

novo hearing in every case involving conflicting testi-

mony might occasionally change the result of such

a motion, but there is no reason to believe that the

changed results would be any more accurate. In-

deed, most administrative agencies employ factfind-

ing procedures quite similar to those challenged here.

An administrative law judge hears the actual testi-

mony and makes the initial findings of fact. There-

after the agency itself enters the administrative find-

ings based on a de novo review of the record. The

validity of such procedures is beyond dispute. See,

e.g., Morgan v. United States, 298 U.S. 468 (1936) ;

Universal Camera Corp. v. NLRB, 340 U.S. 474,

492-497 (1951).

Finally, the court of appeals failed to consider the

substantial governmental interests underlying the Act

or the major fiscal and administrative burdens that

a two-hearing requirement would impose. The Act

is designed to relieve the overburdened district courts

so. that judges may allocate their scarce time and

resources to conducting trials and rendering legal

decisions. Congress recognized that it could create

additional judgeships to handle the flood of litiga-

tion. It reasonably concluded, however, that the ex-

tensive use of magistrates, particularly with regard

to pretrial factual matters, would be a more efficient,

more flexible, and less expensive solution to the prob-

lem. If affirmed, the court of appeals” decision will

frustrate these important goals by forcing district

courts either to conduct a second evidentiary hearing

in a large number of cases or, as is more likely, to

dispense with the use of magistrates altogether.

ARGUMENT

At issue in this case is the constitutionality of the

Federal Magistrates Act (“the Act’), 28 U.S.C. 636

(b). The court of appeals correctly concluded that

the Act authorizes a district court to refer a suppres-

sion motion to a magistrate for an evidentiary hear-

ing and thereafter to decide the motion based solely

on its review of the testimony adduced before the

magistrate, the magistrate’s report and recommenda-

tions, and the submissions of the parties. See 28

U.S.C. 636(b)(1)(B) and (C); point I, infra. Al-

though respondent apparently acknowledges that the

pretrial proceedings that occurred here comport with

the Act, he nonetheless contends that the Act, .at

least as applied in this case, violates the Constitution.

In our view, however, referral of a suppression mo-

tion to a magistrate does not vitiate the guarantees

of Article III, particularly where, as here, the dis-

trict court makes an independent (“de novo”) de-

termination of the suppression issue. See point II,

infra. Furthermore, we submit that the Due Process

Clause does not require that the district court actually

rehear the live testimony previously adduced before

the magistrate. See point ITI, infra.

I. THE FEDERAL MAGISTRATES ACT PERMITS A

DISTRICT COURT TO MAKE A “DE NOVO DETER-

MINATION” OF A SUPPRESSION MOTION BASED

ON THE PROCEEDINGS BEFORE A MAGISTRATE

AND WITHOUT REHEARING THE TESTIMONY

OF THE WITNESSES

As the court of appeals concluded, the pretrial

proceedings in this case did not violate the Act. In-

deed, we do not understand respondent to contend

otherwise. Nonetheless, it is useful to begin with a

discussion of the Act itself, both because the Court

need only consider the constitutional issues presented

if the proceedings below complied with the statute

and because a brief summary of the background and

structure of the Act will aid in the constitutional

analysis. As we show below, the language, legislative

history, and purpose of 28 U.S.C. 636(b) (1) (C)

demonstrate conclusively that a district court may

make a “de novo determination” of a suppression

motion without hearing anew the testimony previously

adduced before the magistrate.

A. Introduction

The Federal Magistrates Act, which was enacted

in 1968, “created a system of full-time and part-time

judicial officers who would perform various judicial

duties under the supervision of the district courts in

order to assist the judges of these courts in handling

an ever-increasing caseload.” S. Rep. No. 94-625,

94th Cong., 2d Sess. 2 (1976); H.R. Rep. No. 94-

1609, 94th Cong., 2d Sess. 4 (1976); see Mathews

v. Weber, 423 U.S. 261, 267-270 (1976). The origi-

nal version of the Act empowered magistrates to do

the work previously carried out by federal commis-

sioners, to try certain petty misdemeanors, and to

perform “such additional duties as are not inconsis-

tent with the Constitution and laws of the United

States.” 28 U.S.C. (1970 ed.) 686(a) and (b). Al-

though the open-ended language of the original Act

was designed to encourage district court experimenta-

tion (see S. Rep. No. 371, 90th Cong., 1st Sess. 26

(1967) ), the phrase “such additional duties * * *” in

fact resulted in substantial appellate litigation, much

of it adverse to Congress’ apparent intent. See, e.v.,

Wingo v. Wedding, 418 U.S. 461 (1974); id. at 487

(Burger, C.J., dissenting) (urging Congress to clarify

the Act): H.R. Rep. No. 1609, supra, at 5-6.

Accordingly, in 1976, Congress amended the Act

“in order to clarify and further define the additional

duties which may be assigned to a United States

Magistrate in the discretion of a judge of the district

court.” S. Rep. No. 94-625, supra, at 1; H.R. Rep.

No. 94-1609, swpra, at 2." In particular, the 1976

amendment firmly established that magistrates could

conduct hearings with regard to any pretrial motion

in either civil or criminal cases. See Pub. L. No.

94-577, 90 Stat. 2729 (codified at 28 U.S.C. 636

(b)(1)(A) and (B)); see, eg., Orand v. United

11 The Act was further amended on October 10, 1979, to

permit a magistrate, upon consent of the parties, to conduct

any civil or criminal (misdemeanor) trial. See Federal Mag-

istrate Act of 1979, Pub. L. No. 96-82, 93 Stat. 643. This

amendment does not change Section 636(b) or affect the

issues posed by this case.

States, 602 F.2d 207 (9th Cir. 1979). Thus, with

regard to most preliminary motions, Section 636(b)

(1) (A) states that a district court may “designate

a magistrate to hear and determine” the motion and

that the magistrate’s decision is final, subject to re-

view by the district court on a “clearly erroneous or

contrary to law” standard. See H.R. Rep. No. 94-

1609, supra, at 9-10.

Certain “dispositive motions,” * including ‘‘a mo-

tion * * * to suppress evidence in a criminal case,”

are, however, excepted from the scope of Section 636

(b)(1)(A). As to these motions, Section 636(b)

(1) (B) provides that a district judge may “designate

a magistrate to conduct hearings, including eviden-

tiary hearings, and to submit to [the] judge * * *

proposed findings of fact and recommendations for

the disposition, by [the] judge * * *, of [the] motion.”

After holding the suppression hearing, the magistrate

files his proposed findings and recommendations with

the court and serves a copy of his report on the

parties. 28 U.S.C. 636(b)(1)(C). Within 10 days

of receiving the report, any party may “file written

objections to such proposed findings and recommenda-

tions.” Jbid. Thereafter the district court is free to

“accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magis-

12 See S. Rep. No. 94-625, supra, at 9; H.R. Rep. No. 94-

1609, supra, at 10. Other so-called “dispositive motions” in-

clude motions to quash an indictment, habeas corpus petitions,

and motions for summary judgment and injunctive relief

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

trate,” based on its “de novo determination” of the

suppression motion. In addition, Section 636 (b) (1) (C)

states that the court “may also receive further

evidence or recommit the matter to the magistrate

with instructions.”

B. A “De Novo Determination” Of A Suppression

Motion Does Not Entail A Second Evidentiary

Hearing

1. Nothing in the language of Section 636(b)

(1) (C) suggests that Congress intended to require a

district court to hear anew the testimony already

heard and evaluated by the magistrate. To the con-

trary, it is apparent that Congress sought to relieve

the district court of the burden of conducting an evi-

dentiary hearing with regard to every pretrial motion.

Thus, the Act mandates only that the district court

make a de novo determination of a suppression motion

based on various written submissions and not that the

court hold a de novo hearing. See, e.g., United States

v. Leiberman, No. 78-1465 (1st Cir. Nov. 7, 1979),

slip. op. 20-21; Muhich v. Allen, 603 F.2d 1247, 1252

(7th Cir. 1979) ; Orand v. United States, supra, 602

F.2d at 208-209; United States v. Whitmore, 595 F.2d

1303, 1805-1306 & n.1 (5th Cir. 1979), petition for

cert. pending, No. 79-375. Where Congress thought it

appropriate for the district court to “hear the evi-

dence” previously heard by the magistrate, such as in

the case of contempt committed before the magistrate,

Congress so specified. See 28 U.S.C. 636(d).”

13 The Federal Magistrates Act of 1979 redesionates Sec-

tion 636(d) as Section 636(e). See note 11, supra.

Moreover, the last sentence of Section 636(b)

(1)(C), which provides that the district judge “may

also receive further evidence,” strongly indicates that

a “de novo determination” is something other than a

de novo hearing. If Congress had intended that the

district court’s de novo determination of a suppression

motion involve a second evidentiary hearing, there

would have been no need to specify that the court has

the discretionary power to hear actual testimony if it

wishes to do so. The conclusion that the “de novo de-

termination” requirement imposes a duty on the dis-

trict court to rehear live testimony thus renders the

last sentence of Section 636(b)(1)(C) mere surplus-

age and consequently “offends the well-settled rule of

statutory construction that all parts of a statute, if

at all possible, are to be given effect.” Weinberger v.

Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633

(1973). See, e.g., Reiter v. Sonotone, No. 78-690

(June 11, 1979), slip op. 5; Jarecki v. G. D. Searle

& Co., 367 U.S. 303, 307 (1961).

Furthermore, construing Section 636(b)(1)(C) to

require the district court to hold a redundant evi-

dentiary hearing “would be to impute to Congress a

purpose to paralyze with one hand what :+ sought to

promote with the other.” Clark v. Uebersee Finanz-

Korporation, 332 U.S. 480, 489 (1947); see Wein-

berger v. Hynson, Westcott & Dunning, Inc., supra,

412 U.S. at 631. The Act evidences a clear congres-

sional purpose to alleviate the increasing congestion

of litigation in the district courts. See, e.g., Mathews

v. Weber, supra, 423 U.S. at 266-269; Wingo v. Wed-

ding, 418 U.S. 461, 463 (1974); S. Rep. No. 371,

90th Cong., 1st Sess. 8-12 (1967); H.R. Rep. No.

94-1609, supra, at 4-8; S. Rep. No. 94-625, supra, at

2-6; H.R. Rep. No. 96-287, 96th Cong., 1st Sess. 2-5,

19-20 (1979); S. Rep. No. 96-74, 96th Cong., 1st

Sess. 1-3 (1979).'* That purpose would be substan-

tially undermined if the statute were held to mandate

a duplicative hearing before the district court when-

ever a party objected to a magistrate’s proposed find-

ing or even whenever the magistrate’s recommenda-

tion was based on his evaluation of conflicting testi-

mony.

In other words, if the statute were read to man-

date a rehearing where, as here, there is a conflict in

testimony, then two hearings would be required with

regard to many, if not most, dispositive pretrial mo-

44 See generally Federal Magistrates Act: Hearings on

S. 8475 and S. 945 Before the Subcomm. on Improvements in

Judicial Machinery of the Senate Comm. on the Judiciary, 89th

Cong., 2d Sess. and 90th Cong., Ist Sess. 15-17, 25-37, 45-47,

52-54, 91-98, 210-222, 236 (1966-1967) ; Federal Magistrates

Act: Hearings on S. 945, etc., Before Subcomm. No. 4 of the

House Comm. on the Judiciary, 90th Cong., 2d Sess. 65-81, 96-

104, 117-120, 127-131, 150-158 (1968) ; Jurisdiction of United

States Magistrates: Hearing on S. 1283 Before the Subcomm.

on M2 Improvements in Judicial Machinery of the Senate

Comm. on the Judiciary, 94th Cong., 1st Sess. 1-20, 33-40

(1975) ; Magistrate Act of 1977: Hearings on S. 1612 and

S. 1613 Before the Subcomm. on Improvements in Judicial

Machinery of the Senate Comm. on the Judiciary, 95th Cong.,

Ist Sess. 1-6, 14-28, 47-55, 90-95 151-158, 180-182 (1977);

Hearings on Magistrates Reform Before the Subcomm. on

Courts, Civil Liberties, and the Administration of Justice of

the House Comm. on the Judiciary, 95th Cong., 1st Sess. 55-57,

86-99, 123-127, 152-160, 182-185, 188-191, 409-485 (1977).

tions. An evidentiary hearing obviously is unneces-

sary if the facts are uncontested; in such cases the

court can decide the legal issues without resort to

a magistrate. It is only where the evidence is in dis-

pute that the magistrate has a useful role to play.

Hence, a two hearing requirement would undoubtedly

terminate the heretofore common practice of assign-

ing pretrial hearings to magistrates. See 1979 An-

nual Report of the Director of the Administrative

Office of the United States Courts A-144 to A-145

(Table M-4) (in FY 1979, magistrates handled a

total of 18,027 Section 636(b)(1)(B) motions).

Rather than waste the resources of the court, includ-

ing courtroom space and court reporters, and the time

of the magistrate, counsel and witnesses in a dress

rehearsal, the district court would conduct the pre-

trial hearing itself in the first instance, at least where

there was a fair possibility that a conflict in testimony

would arise. As a result, the congressional purpose to

encourage the use of magistrates to conduct pre-

trial hearings “as a means of freeing time of dis-

trict court judges to preside at trials” would be frus-

15 Most suppression motions involve credibility determina-

tions. See, e.g., Davis v. North Carolina, 384 U.S. 737, 741

(1966). Therefore, even if the language of the statute could

somehow be construed to necessitate two hearings only in

suppression cases involving conflicting testimony, the impact

would be substantial. In FY 1979, magistrates made recom-

mendations on 1,604 criminal motions pursuant to Section

636 (b) (1) (B)—an increase of more than 21% over the previ-

ous year. Compare 1979 Annual Report, supra, at A-144 with

1978 Annual Ieport of the Director of the Administrative

Office of the United States Courts A-144 (Table M-4).

trated. See H.R. Rep. No. 94-1609, at 4, 7. See

also S. Rep. No. 94-625, supra, at 3-5; Jurisdiction of

United States Magistrates: Hearing on S. 1283 Be-

fore the Subcomm. on Improvements in Judicial Ma-

chinery of the Senate Comm. on the Judiciary, 94th

Cong., lst Sess. 1, 4, 36 (1975).

2. In any event, the legislative history forecloses

any argument on this point. The original Senate ver-

sion of the 1976 amendment did not contain the “de

novo determination” language. See S. 1283, 94th

Cong., 2d Sess. (1975), reprinted in S. Rep. No. 94-

625, supra, at 2. In order to clarify “the type of

review afforded a party who takes exceptions to a

magistrate’s findings and recommendations in [ac-

cordance with Section 636(b)(1)(C)],” the House

added the “de novo determination” imperative. See

H. k. Rep. No. 94-1609, supra, at 3. The House Re-

port accompanying the 1976 amendment unambigu-

ously states (ibid.) :

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 magis-

trate and make his own determination on the

basis of that record, without being bound to adopt

the findings and conclusions of the magistrate.

See also id. at 11; 122 Cong. Rec. 35182-35183 (1976)

(remarks of Rep. Railsback) ; Hearings on S. 1288,

supra, at 4.

H.R. Rep. No. 94-1609 further explains that “[t]he

approach of the Committee, as well as that of the

Senate, is adopted from the decision of the United

States Court of Appeals for the Ninth Circuit in

Campbell v. United States District Court for the

Northern District of California, 501 F.2d 196 (9th

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

Rep. No. 94-1609, supra, at 3. In Campbell, the

court of appeals held that a district court could re-

fer a suppression motion to a magistrate and then

make a “de novo determination” of the motion based

on the record adduced before the magistrate and the

magistrate’s recommendations. See 501 F.2d at 206.”°

The court specifically noted that the district court

“may, in the exercise of its discretion, call and hear

the testimony of a witness or witnesses in an adver-

sary proceeding [, but i]t is not required to hear any

witness and not required to hold a de novo hearing of

the case.” Id. at 206-207 (emphasis supplied), quoted

with approval in H.R. Rep. No. 94-1609, supra, at 3-

4. See also id. at 6; Hearings on S. 1283, supra, at 23.

Finally, Congress has recently confirmed that the

Act does not impose a double hearing requirement in

the event of a reference of a suppression motion to a

magistrate. The legislative history of the 1979 amend-

ment to the Act (see note 11, swpra) reemphasizes

that a “de novo determination” is not a “de novo

hearing.” For example, the pertinent Senate Report

16 Campbell, of course, was decided under the original ver-

sion of the Act, which provided that magistrates could take

on “such additional duties as are not inconsistent with the

Constitution and laws of the United States.” See 501 F.2d

at 201; page 20, supra.

states that, consistent with congressional intent, the

Act has “facilitated a rational division of labor

among judicial officers in the district court, as the

magistrate would relieve the judge from personally

hearing each and every pretrial motion or proceeding

in the preparation of a case for trial.” S. Rep. No.

96-74, 96th Cong., lst Sess. 4 (1979) (emphasis

supplied). Similarly, both the Senate and House

Hearings on the 1979 amendment reflect Congress’

clear understanding that “the words ‘de novo deter-

mination’ in subparagraph 636(b)(1)(C) do not

require the judge to actually conduct a new hearing

on contested issues.” Magistrate Act of 1977: Hear-

ings on S. 1612 and S. 1613 Before the Subcomm.

on Improvements in Judicial Machinery of the Senate

Comm. on the Judiciary, 95th Cong., 1st Sess. 37

(1977) (emphasis in original). See also Hearings on

Magistrates Reform Before the Subcomm. on Courts,

Civil Liberties and the Administration of Justice of

the House Comm. on the Judiciary, 95th Cong., 1st

Sess. 167, 257 (1977). Such subsequent legislative

history is entitled to significant weight where, as here,

Congress has unequivocally stated its views in the

course of amending the statute. See Lorillard v. Pons,

434 U.S. 575, 580-581 (1978).

Il. REFERENCE OF A SUPPRESSION MOTION TO A

MAGISTRATE FOR AN EVIDENTIARY HEARING

IN ACCORDANCE WITH 28 U.S.C. 636(b)(1)(B) AND

CONSTITUTION

In the courts below, respondent contended that Ar-

ticle III of the Constitution barred reference of his

suppression motion to a magistrate. The court of ap-

peals rejected this claim, observing that Congress had

“avoid[ed] any such objections by requiring that a dis-

trict court judge ‘shall make a de novo determination’

on contested aspects of a magistrate’s recommenda-

tion in case dispositive motions” (Pet. App. 14a). As

we now demonstrate, the court of appeals’ conclusion

is manifestly correct.

A. A Motion To Suppress Evidence In A Federal

Criminal Prosecution Need Not Be Heard In A

Court Created Under Article III

1. Article III of the Constitution establishes the

framework for the judicial branch of the federal

government. Section 1 of Article III provides that the

“judicial Power of the United States, shall be vested

in one supreme Court, and in such inferior Courts as

the Congress may from time to time ordain and es-

tablish.” Judges of Article III courts hold office dur-

ing their good behavior and their salaries may not be

reduced during their tenure. Article III further

states that the “judicial Power shall extend” to vari-

ous classes of cases, including those “arising under

* * * the laws of the United States” (Section 2). Al-

though it therefore follows that an Article IIT judge

may conduct a suppression hearing as part of a fed-

eral criminal prosecution, nothing in the text or. his-

tory of Article III or in this Court’s decisions sug-

gests that only an Article III judge is constitutionally

permitted to conduct such a hearing.” ,

17 At the outset, we submit that Congress’ considered judg-

ment that the Act satisfies Article III is entitled to deference.

To be sure, “[i]t is, emphatically, the province and duty of

Section 1 of Article III permits rather than directs

Congress to create lower federal courts. See Palmore

v. United States, 411 U.S. 389, 400-402 (1973) ; Cary

v. Curtis, 44 U.S. (3 How.) 236, 245 (1845). That

discretionary power was the result of a compromise

at the Constitutional Convention of 1787 between

those who favored a strong national government with

an independent judiciary and those who thought

that the state courts should adjudicate questions of

federal law subject to appellate review in a supreme

court. See M. Farrand, The Records of the Federal

Convention of 1787, Vol. 1, at 124-127, and Vol. 2, at

the judicial department, to say what the law is.” Marbury v.

Madison, 5 U.S. (1 Cranch) 187, 177 (1803). But it is also

true that an act of Congress is presumptively constitutional

and that that presumption is particularly strong where Con-

gress has analyzed the constitutionality of a proposed stat-

ute in considerable detail. See, e.g., United States vy. Nizon,

418 U.S. 683, 703 (1974) ; Palmore v. United States, 411 U.S.

389, 409 (1973) ; Katzenbach v. McClung, 379 U.S. 294, 303-

304 (1964). See also Glidden Co. v. Zdanok, 370 U.S. 580,

541-543 (1962). Here, after consulting various authorities

and debating the matter at length, Congress has repeatedly

asserted its firm view on the validity of the Act. See, e.g.,

S. Rep. No. 371, supra, at 12, 25; S. Rep. No. 94-625, supra, at

6; H.R. Rep. No. 94-1609, at 8; S. Rep. No. 96-74, supra, at 6:

H.R. Rep. No. 96-287, supra, at 7-9, 20, 31-83; Federal Magis-

trates Act: Hearings on S. 8475 and S. 945 Before the Sub-

comm. on Improvements in Judicial Machinery of the Senate

Comm. on the Judiciary, 89th Cong., 2d Sess. and 90th Cong.,

Ist Sess. 111-195, 246-258 (1966-1967) ; Hearings on S. 1283,

supra, at 6; Hearings on the Magistrate Act of 1977, supra, at

29, 158-159, 185, 191; Hearings on Magistrates Reform, supra,

at 99-109, 189, 419-427. See also Mathews v. Weber, supra,

423 U.S. at 269-270.

45-46 (1966) ; The Federalist Nos. 80-82 (A. Hamil-

ton); Warren, New Light on the History of the Fed-

eral Judiciary Act of 1789, 37 Harv. L. Rev. 49, 52-57

(1923). Indeed, as the Framers had anticipated,

“(d]uring most of the Nation’s first century, Congress

relied on the state courts to vindicate essential rights

arising under the Constitution and federal laws.”

Zwickler v. Koota, 389 U.S. 241, 245 (1967) ; see also

Glidden Co. v. Zdanok, 370 U.S. 530, 551 (1962)

(plurality opinion) ; Palmore v. United States, supra,

411 U.S. at 401-402; Swain v. Pressley, 430 U.S. 372,

383 n.17 (1977).

Thus, it is settled that Congress may refuse to

create Article III courts, it may establish such courts

but with limited jurisdiction,”* and it may withdraw

such jurisdietion once conferred. See, e.g., Carey v.

Curtis, supra, 44 U.S. (3 How.) at 245; Sheldon v.

Sill, 49 U.S. (8 How.) 440 (1850); Lockerty v.

Phillips, 319 U.S. 182 (1943) ; Glidden Co. v. Zdanok,

supra, 370 U.S. at 551-552. Moreover, Congress’

power in this regard is not limited either to estab-

lishing Article III courts to adjudicate federal ques-

tions or to delegating that task to existing state

courts. Rather, Congress may create so-called “legis-

18 It was not until 1875 that Congress authorized the lower

federal courts to exercise general “federal question” jurisdic-

tion, and even then the state courts retained concurrent juris-

diction over many “federal” cases and exclusive jurisdiction

over cases not satisfying the jurisdictional amount require-

ment. See Act of March 3, 1875, ch. 187, Section 1, 18 Stat.

470; District of Columbia v. Carter, 409 U.S. 418, 427-428 n.20

(1973).

lative” or Article I courts to decide inherently judicial

matters arising under the Constitution and laws of

the United States without violating Article III. See,

e.g., American Insurance Co. v. Canter, 26 U.S. (1

Pet.) 511 (1828) (territorial courts); Jn re Ross,

140 U.S. 453, 464-465, 480 (1891) (consular courts) ;

Ex parte Bakelite Corp., 279 U.S. 488 (1929) (cus-

toms courts); Crowell v. Benson, 285 U.S. 22, 48-65

(1932) (administrative proceedings); Williams v.

United States, 289 U.S. 553 (1933) (court of claims) ;

Reconstruction Finance Corp. v. Bankers Trust Co.,

318 U.S. 163, 168-171 (1943) (bankruptcy proceed-

ings before the Interstate Commerce Commission).

'® The court stated in Crowell that Article III courts must

be allowed to determine so-called jurisdictional facts, that is,

facts relating to Congress’ constitutional power to act in a

particular area. 285 U.S. at 54-61. (In Crowell those facts

involved whether the claimant under the Longshoremen’s and

Harbor Workers’ Compensation Act was an employee work-

ing on the navigable waters at the time of the accident).

Both the subsequent opinions of this Court and the commenta-

tors strongly suggest that this aspect of Crowell retains little

or no vitality. See, e.g., St. Joseph Stock Yards Co. v. United

States, 298 U.S. 38, 84 (19386) (Brandeis, J., concurring) ;

Myers Vv. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49-52

(1938) ; Estep v. United States, 327 U.S. 114, 142 (1946)

(Frankfurter, J., dissenting) ; P. Bator, P. Mishkin, D. Sha-

piro, H. Wechsler, Hart and Wechsler’s The Federal Courts

and The Federal System 389-340 (2d ed. 1973). W. Gellhorn

& C. Byse, Administrative Law 419-427 (6th ed. 1974) ;

4 K. Davis, Administrative Law Treatise § 29.08 (1958). In

any event, a motion to suppress does not involve the determi-

nation of jurisdictional facts, and the magistrate’s role is

limited to making a recommendation. See point IIB, infra.

The rule that federal questions need not be liti-

gated in Article III courts applies with full force to

the enforcement of the federal criminal law. Article

III does not differentiate in this regard between

federal criminal and civil proceedings.” Moreover,

“lvjery early in our history, Congress left the en-

forcement of selected federal criminal laws to state

courts and to state court judges who did not enjoy

the protections prescribed for federal judges in Art.

III.” Palmore v. United States, supra, 411 U.S. at

402. See Warren, Federal Criminal Laws and the

State Courts, 38 Harv. L. Rev. 545, 551-553, 570-

572 (1925); Act of March 2, 1799, ch. 43, Sections

14, 15, 20 and 28, 1 Stat. 733, 736-740. In fact, the

Court has unanimously concluded that Congress may

constitutionally require state courts to enforce federal

penal statutes. Testa v. Katt, 330 U.S. 386 (1947).

Simply stated, “the Constitution does not require that

all persons charged with federal crimes be tried in

Art. III courts.” Swain v. Pressley, supra, 430 U.S. at

382-383; see Palmore v. United States, supra, 411

U.S. at 407. As is true in the civil context, Congress

may delegate administration of criminal justice to

Article I tribunals as well as to state courts. See,

e.g., Palmore v. United States, supra; Swain v.

Pressley, supra; In re Ross, supra.

2. The question of what limits, if any, Article ITI

places on the congressional power to create Article I

20 By contrast, Article III, Sec. 2, cl. 3 guarantees the right

to a jury trial in the state of the offense in all criminal cases

except impeachment.

or legislative courts has not been fully explored by

this Court. Although we are aware of no decision

of the Court holding that an act of Congress estab-

lishing a non-Article III tribunal to adjudicate legal

claims violates Article III, we assume, arguendo, that

Article III bars Congress from essentially replacing

an independent judiciary with Article I courts.” Cf.

O’Donoghue v. United States, 289 U.S. 516, 530-531

(1933). Nonetheless, there is no doubt that at a

minimum “the requirements of Art. III * * * must

in proper circumstances give way to accommodate

plenary grants of power to Congress to legislate with

respect to specialized areas having particularized

needs and warranting distinctive treatment.” Palmore

v. United States, supra, 411 U.S. at 407-408. Ac-

cordingly, we submit that even if the Act is viewed as

creating an Article I magistrate’s court (but see point

IIB, infra), Section 636(b) (1) (B) falls well within

the limits of Congress’ power.

For example, in Palmore v. United States, supra,

the Court upheld Congress’ decision to give exclusive

jurisdiction over criminal prosecutions arising under

the District of Columbia (federal) laws to Article I

courts. The Court concluded that this exercise of

1 Certainly the language of Article III does not appear to

constitute such a limitation. Moreover, it has been suggested

that Article III is satisfied so long as an appeal to an Arti-

cle III tribunal is available regarding federal questions. See

Swain Vv. Pressley, supra, 4830 U.S. at 382 n.16; Silberman,

Masters and Magistrates Part Il: The American Analogue,

50 N.Y.U.L. Rev. 1297, 1816-1317 (1975).

congressional power over the District of Columbia ”

did not run afoul of Article III because of the per-

ceived need “to relieve the regular Art. III courts

* * * from the smothering responsibility for [a]

great mass of litigation * * *.” 411 U.S. at 408-409.

In light of the nature of the caseload assigned to the

Article I tribunals, Congress could constitutionally

address the court congestion problem without creat-

ing additional Article III judgeships. See id. at 409-

410.

So too here, Congress constitutionally authorized

district courts to delegate various pretrial matters

to magistrates as a means of alleviating the enor-

mous crush of litigation in the district courts. See,

e.g., H.R. Rep. No. 94-1609, supra, at 4-7, 13; S. Rep.

No. 94-625, supra, at 2-5; pages 23-25, supra. Con-

gress has plenary power to enact, and to dictate the

means of enforcing, federal criminal laws and “[t]o

constitute Tribunals inferior to the Supreme Court.”

Art. I, sec. 8, el. 9; De Costa v. Columbia Broadcast-

ing System, Inc., 520 F.2d 499, 503 n.3 (1st Cir.

1975), cert. denied, 423 U.S. 1078 (1976). Given the

limited nature of the delegation under 636(b) (1) (B)

and the greater flexibility and lesser cost of

magistrates as compared to judges, here (as in Pal-

more) Congress was entitled to employ Article I

tribunals to aid the district courts in the administra-

tion of justice. In short, Section 636(b) (1) (B) does

not represent an attempt by Congress to eliminate

22 See Art. I, Sec. 8, cl. 17.

an independent judiciary, in violation of Article III.

To the contrary, Congress has attempted merely to

assist Article III judges in carrying out the critical

judicial functions of conducting trials and rendering

legal decisions.

Finally, the Court’s cases regarding the military

draft further demonstrate the constitutionality of

Sections 636(b)(1)(B) and (C). In the Selective

Draft Law Cases, 245 U.S. 366, 389 (1918), the

Court summarily rejected the contention that a con-

viction for failing to submit to induction was invalid

under Article III because the local draft boards and

not the Article III court made the factual determina-

tions regarding the defendant’s eligibility for the

draft. Hence, nothing in Article III precludes a fed-

eral prosecution brought in an Article III court based

in part on factual findings determined by an Article

I tribunal. See Estep v. United States, 327 U.S. 114

(1946) ; McGee v. United States, 402 U.S. 479, 483

(1971).” A fortiori, where, as here, the “Article I”

*3 In Estep, the Court concluded that although even errone-

ous findings of the local board were ordinarily binding in the

subsequent prosecution, a defendant was entitled to show that

there was no basis in fact for the draft board’s classification

(327 U.S. at 122-123) :

It means that the courts are not to weigh the evidence to

determine whether the classification made by the local

boards was justified. The decisions of the local buards

made in conformity with the regulations are final even

though they may be erroneous. The question of jurisdic-

tion of the local board is reached only if there is no basis

in fact for the classification which it gave the registrant.

tribunal is limited to making proposed findings about

the admissibility of evidence in a pending criminal

prosecution, and those findings and recommendations

are subject to a de novo determination by the Article

III court, the defendant’s Article III rights are fully

protected.

B. The District Court’s De Novo Determination Of

The Suppression Motion In Accordance With Sec-

tion 636(b)(1)(C) Satisfies The Requirements of

Article III

We have demonstrated above that there is no Arti-

cle III impediment to the creation of an Article I

magistrate’s court to decide suppression motions. We

submit, however, that in amending the Act in 1976

Congress was far more solicitous of Article III con-

siderations, including the integrity and independence

of the judiciary. In the first instance, magistrates

are appointed by and subject to removal by a major-

ity of the (Article III) judges in the district court

or courts in which the magistrate sits. See 28 U.S.C.

631(a), (h). Moreover, the district court has initial

and unfettered discretion to decide whether to desig-

nate a magistrate to hold an evidentiary hearing

concerning a suppression claim. Thereafter, the mag-

istrate conducts the hearing under the aegis of the

Article III court, and his proposed findings and rec-

ommendations are subject to a de novo determination

“by the judge who * * * then exercise[s] the ulti-

mate authority to issue an appropriate order.” S.

Rep. No. 94-625, supra, at 3. See, e.g., id. at 2, 5-6,

9-10; H.R. Rep. No. 94-1609, supra, 3-5, 7-8, 10-11;

S. Rep. No. 371, supra, at 12. Finally, the district

court retains the power to rehear all or part of

the live testimony.

Thus, the magistrate does not function independ-

ently of the district court. Rather, a magistrate is

an adjunct to the Article III decision-maker, essen-

tially performing the same tasks that a master or

admiralty commissioner might perform.* The con-

stitutionality of using such non-Article III entities

to conduct evidentiary hearings or otherwise to aid

in the determination of facts is not subject to ques-

tion. As the Court pointed out in Crowell v. Benson,

supra, 285 U.S. at 51-52 (emphasis supplied; foot-

notes omitted) :

[There is no requirement that, in order to main-

tain the essential attributes of the judicial power,

all determinations of fact in constitutional courts

shall be made by judges. On the common law

side of the Federal courts, the aid of juries is

not only deemed appropriate but is required by

the Constitution itself. In cases of equity and

*4 The magistrate has venerable antecedents in both Ameri-

can and English practice. See generally Silberman, Masters

and Magistrates Part I: The English Model, 50 N.Y.ULL.

Rev. 1070 (1975) ; Silberman, Masters and Magistrates Part

II: The American Analogue, 50 N.Y.U.L. Rev. 1297 (1975) ;

Hearing on S. 1283, supra, at 6; Mathews v. Weber, supra,

423 U.S. at 268-269, n.4. Indeed, this Court, which is also

subject to the constraints of Article III, routinely refers

cases arising under its original jurisdiction to special masters

for extensive fact-finding purposes.

admiralty, it is historic practice to call to the

assistance of the courts, without the consent of

the parties, masters and commissioners or as-

sessors, to pass upon certain classes of ques-

tions * * *. While the reports of masters and

commissioners in such cases are essentially 0 f

an advisory nature, it has not been the practice

to disturb their findings when they are properly

based wpon evidence, in the absence of errors of

law, and the parties have no right to demand

that the court shall redetermine the facts thus

found.

Similarly, there can be no serious question that

Congress may constitutionally direct—or, as here,

permit—the district courts to refer a suppression

motion to a magistrate for an evidentiary hearing.

Article III does not limit Congress’ power to alter

the mode of proceeding in the district court, as

opposed to removing the proceeding from the district

court altogether. See, e.g., Holiday v. Johnston, 313

U.S. 342, 352 (1941) (Congress has power to permit

reference of a habeas corpus petition to non-Article

III commissioner for an evidentiary hearing) ; Crow-

ell v. Benson, supra, 285 U.S. at 52-54; Ex parte

Peterson, 253 U.S. 300, 312-313 (1920); Note, Mas-

ters and Magistrates in the Federal Courts, 88 Harv.

L. Rev. 779, 787-789, 794, 803 (1975); Silberman,

Masters and Magistrates Part II, supra, 50 N.Y.U.

L. Rev. at 1310-1314.% In sum, as the court of ap-

25 With regard to some civil and criminal trials, Congress’

power to delegate the factfinding function is, of course, lim-

ited by the Sixth and Seventh Amendments.

peals concluded (Pet. App. 14a), because under Sec-

tion 636(b)(1)(C) an Article III court retains “the

ultimate adjudicatory power over [suppression] mo-

tions” (H.R. Rep. No. 94-1609, supra, at 11; S. Rep.

No. 94-625, supra, at 10), the Act satisfies Article

III concerns.

It is therefore not surprising that the overwhelm-

ing weight of authority supports the conclusion that

the procedures sanctioned by the Act do not violate

Article III. At least two Members of this Court and

four courts of appeals have agreed that Article III

does not bar a magistrate from conducting an evi-

dentiary hearing, at least so long as the district court

retains the power to make the final decision. Wingo

v. Wedding, supra, 418 U.S. at 486-487 & n.11 (Bur-

ger, C.J., joined by White, J., dissenting); Hill v.

Jenkins, 603 F.2d 1256, 1258 (7th Cir. 1979); Mu-

hich v. Allen, supra, 608 F.2d at 1250-1251; Sick v.

City of Buffalo, 574 F.2d 689, 698 & n.17 (2d Cir.

1978) ; Loral Corp. v. McDonnell Douglas Corp., 558

F.2d 1130, 1133 (2d Cir. 1977); Cruz v. Hauck, 515

F.2d 322, 328-330 (5th Cir. 1975), cert. denied, 424

U.S. 917 (1976) ; Campbell v. United States District

Court, supra, 501 F.2d at 200-201.% The great ma-

26 See also Mathews v. Weber, supra, 423 U.S. at 269-270;

Bowman Vv. Bordenkircher, 522 F.2d 209, 210 (4th Cir. 1975) ;

United States ex rel. Henderson v. Brierley, 468 F.2d 1193,

1194-1195 (3d Cir. 1972). The First and Sixth Circuits have

stated that a magistrate’s final determination of a claim

raises serious Article III questions in the absence of the

parties’ consent. Compare United States v. Edwards, 602

F.2d 458, 467 n.8 (1st Cir. 1979), with De Costa v. Columbia

jority of commentators have also supported this view.

See, e.g., Shapiro, Federal Habeas Corpus: A Study

in Massachusetts, 87 Harv. L. Rev. 321, 365 (1973) ;

Note, Masters and Magistrates in the Federal Courts,

supra, 88 Harv. L. Rev. at 787-789; Silberman, supra,

50 N.Y.U. L. Rev. at 1310-13817; Comment, An Ex-

panding Civil Role For United States Magistrates,

supra, 26 Am. U. L. Rev. 66, 74-82 (1976); Note,

Proposed Reformation of Federal Habeas Corpus Pro-

cedure: Use of Federal Magistrates, 54 Iowa L. Rev.

1147, 1159-1162 (1969). In these circumstances, def-

eryice to Congress’ considered judgment on this ques-

tion is appropriate. See S. Rep. No. 94-625, supra, at

6; H.R. Rep. No. 94-1609, supra, at 8; note 17, supra.

Broadcasting System, Inc., 520 F.2d 499 (1st Cir. 1975). See

Ellis v. Buchkoe, 491 F.2d 716, 717 (6th Cir. 1974). In this

case, of course, the magistrate merely submitted a recom-

mendation to the district court, which made the final determi-

nation of the suppression motion.

The Eighth Circuit has indicated that a magistrate may

constitutionally conduct a hearing but that if a party objects

to the magistrate’s findings, the district court may be re-

quired under Article III to rehear the testimony. See Noor-

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

the reasons stated above, we believe that this suggestion,

which was not preceded by any analysis and was not neces-

sary to the disposition of the case, is incorrect.

Ill. DETERMINATION OF A SUPPRESSION MOTION

IN ACCORDANCE WITH 28 U.S.C. 636(b)(1)(B)

DOES NOT DEPRIVE A DEFENDANT OF DUE

PROCESS OF LAW

A. Introduction

The principal issue in this case is whether the

procedures set forth by Congress in the Federal Mag-

istrates Act deprive a defendant of due process inso-

far as they allow a district court to deny a motion

to suppress evidence based on the proceedings before

the magistrate, the magistrate’s report, and the sub-

missions of the parties—but without an evidentiary

hearing conducted by the court itself. To be sure, a

defendant is entitled to an evidentiary hearing re-

garding the admissibility of his inculpatory state-

ments. See, e.g., Jackson v. Denno, 378 U.S. 368

(1964). But respondent received a full and fair hear-

ing before the magistrate, and he does not contend

otherwise.” In light of the evidence offered at the

hearing, the magistrate reasonably found that the

testimony of the Chicago police officer and the federal

agents was more credible than that of respondent,

and he therefore recommended that the motion to sup-

press be denied.** Thereafter, the district court made

27 Respondent does not assert that the hearing was in any

way inadequate, except that it was presided over by the

magistrate and not an Article III judge. See point II, supra.

28 Respondent, who has a substantial criminal record (see

page 9, supra), repeatedly claimed that he made no state-

ments at all when he was arrested on August 8, 1976, despite

his counsel’s best efforts to make him recall such statements

(Tr. 123-125, 127-130, 149-153). Officer Vollick of the Chi-

<td

a de novo review of the suppression claim, agreed

with the magistrate’s proposed findings and recom-

mendations, and denied respondent’s motion. In our

view, these extensive proceedings met the require-

ments of due process.

Neither common sense nor precedent supports the

court of appeals’ contrary conclusion. The court be-

low held that the Due Process Clause requires the

district court either to rehear the testimony pre-

viously adduced before the magistrate or to defer to

the magistrate’s evaluation of that testimony. How-

ever, as the court conceded (Pet. App. 18a), the

statute itself precludes the latter alternative; the dis-

trict court must make a de novo determination of

the suppression issue. But even more important, at

least where, as here, the district court decides to adopt

the magistrate’s proposed findings and recommenda-

tions, the Act’s requirement that the district court

determine the suppression claim de novo accords a

defendant greater procedural safeguards than that

cago Police Department and the contemporaneous police re-

port of the arrest both unequivocally stated that respondent,

after being advised of his rights, admitted bringing the gun

with him when he went to “discuss” a family matter with

Batson (Tr. 4-5, 14-15, 21, 31-32, 149-153). Those statements

coincide with respondent’s statement of January 12, 1977,

which respondent does not deny making and which, of course,

could not have been known to the Chicago police at the time

the report was prepared in August 1976. Moreover, respond-

ent admitted lying to the police in November 1976. Finally,

his claim that he had been promised immunity by the ATF

agents was flatly denied by those agents. See pages 6-9,

supra.

provided by a standard of deferential review: if the

district court had deferred to the magistrate, rather

than determined the matter de novo, the court ob-

viously would have again accepted the magistrate’s

report and would have again denied respondent’s

motion. That the court’s more thorough review of the

record gave respondent a second substantial oppor-

tunity to establish his suppression claim surely can-

not violate due process. See, e.g., Wingo v. Wedding,

supra, 418 U.S. at 486-487 (Burger, C.J., dissent-

ing); Mildner v. Gulotta, 405 F. Supp. 182, 195

(E.D. N.Y. 1975) (three-judge court), aff’d mem.,

425 U.S. 901 (1976); United States v. Whitmire,

supra, 595 F.2d at 1305-1306 & n.1; Loral Corp. v.

McDonnell Douglas Corp., supra, 558 F.2d at 1133.

The inexorable logic of this position is also sup-

ported by the cases interpreting the Due Process

Clause. Due process is, of course, a flexible concept,

varying in accordance with “the precise nature of

the government function involved as well as of the

private interest that has been affected.” Cafeteria

& Restaurant Workers Union, Local 478 v. McElroy,

367 U.S. 886, 895 (1961). See, e.g., Greenholtz v.

Inmates of the Nebraska Penal and Correctional Com-

plex, No. 78-201 (May 29, 1979), slip op. 10; Wolf

v. McDonnell, 418 U.S. 539, 560 (1974); Morrissey

v. Brewer, 408 U.S. 471, 481 (1972). The Court has

identified three factors that must be weighed in order

to determine what process is due in a particular cir-

cumstance (Mathews v. Eldridge, 424 U.S. 319, 335

(1976) ):

First, the private interest that wii! be affected

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

roneous deprivation of such interest through the

procedures used, and the probable value, if any,

of additional or substitute procedural safe-

guards; and finally, the Government’s interest,

including the function involved and the fiscal

and administrative burdens that the additional

or substitute procedural requirement would

entail.

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

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

20, 1979), slip op. 13-14; Greenholtz v. Inmates of

the Nebraska Penal and Correctional Complex, supra,

slip op. 10. We submit that the Act appropriately

balances these factors.

B. The court of appeals erroneously equated respond-

ent’s interest in the outcome of the suppression

hearing with his interest in the criminal trial itself

The court of appeals’ analysis is premised on the

erroneous notion that a suppression motion is “in

effect the prosecution” (Pet. App. 17a) and that there-

fore the process due respondent at that proceeding

is equivalent to the procedural protections that must

be accorded at the criminal trial itself. See also Pet.

App. 16a, 21a-24a. This Court has repeatedly em-

phasized, however, that the suppression remedy is

ordinarily concerned with the deterrence of official

misconduct or other societal interests and not with

the more fundamental determination of guilt or in-

nocence. See, e.g., United States v. Janis, 428 U.S.

433, 453-454 (1976); United States v. Peltier, 422

U.S. 581, 535-536, 588-539 (1975) ; Lego v. Twomey,

404 U.S. 477, 484-489 (1972); Rogers v. Richmond,

365 U.S. 534, 540-544 (1961). In the Fourth Amend-

ment area, for example, the Court has remarked that

the exclusion of relevant evidence, while important

aS a means of compelling “respect for the constitu-

tional guaranty in the only effectively available way—

by removing the incentive to disregard it” (Elkins

v. United States, 364 U.S. 206, 217 (1960) ), none-

theless “deflects the truthfinding process and often

frees the guilty.” Stone v. Powell, 428 U.S. 465,

490 (1976). Similarly, where, as in this case, the de-

fendant claims that his confession was involuntary,

the remedy of suppression is “designed to safeguard

the [Fifth Amendment] right[{s] of an individual,

entirely apart from his guilt or innocence * * *.”

Lego v. Twomey, supra, 404 U.S. at 485. Hence, the

accused’s paramount interest in liberty is not directly

at risk at a suppression hearing.

Indeed, the defendant’s stake in the outcome of a

suppression hearing is significantly less than the in-

dividual interests implicated by various civil proceed-

ings. Insofar as the government’s burden of proof

in a particular kind of proceeding is compelled by the

Due Process Clause, it “indicate[s] the relative im-

portance attached to the ultimate decision.” Adding-

ton v. Texas, No. 77-5992 (Apr. 30, 1979), slip op.

4. See In re Winship, 397 U.S. 358, 370 (1970)

(Harlan, J., concurring). As the Court held in Lego

v. Twomey, supra, 404 U.S. at 489, the prosecution

need demonstrate the voluntariness of a challenged

- et eee OR tees

confession only by a preponderance of the evidence.

In contrast, the government bears a burden of proof

by clear and convincing evidence in a number of

civil contexts, including commitment to a mental

institution (Addington v. Texas, supra), deportation

(Woodby v. INS, 385 U.S. 276, 285 (1966)), and

denaturalization (Chawnt v. United States, 364 U.S.

350, 353 (1960) ; Schneiderman v. United States, 320

U.S. 118 (1948)). Compare also United States v.

Matlock, swpra, 415 U.S. at 172-175 (hearsay admis-

sible in suppression hearing), with Bridges v. Wiwon,

326 U.S. 135, 153-154 (1945) (hearsay inadmissible

in deportation proceeding).

Moreover, the fact that this preliminary motion oc-

curs in the context of a criminal case, a factor that

the court of appeals believed significant (Pet. App.

16a), does not change the analysis. There is a sub-

stantial “difference in the guanta and modes of proof

required to establish” guilt in a criminal case on the

one hand and a constitutional violation giving rise

to the exclusion of relevant evidence on the other.

Brinegar v. United States, 338 U.S. 160, 173 (1949).

In addition to the significant contrast in the burdens

of proof applicable to the two proceedings, the gov-

ernment may rely on hearsay evidence in a suppres-

sion proceeding even though that same evidence would

be inadmissible at trial. See Brinegar v. United

States, supra, 338 U.S. at 172-174; United States v.

Matlock, supra, 415 U.S. at 172-177; Fed. R. Evid.

104(a), 1101(d) (1). And whereas the Due Process

Clause requires that the government disclose an in-

formant’s identity at the trial itself if his identity

“Gs relevant and helpful to the defense of an accused”

(Roviaro v. United States, 358 U.S. 53, 60-61 (1957) ),

there is no such constitutional compulsion at the sup-

pression hearing. See McCray v. Illinois, 386 U.S.

300 (1967). In short, the process due at a pretrial

hearing, even in a criminal case, is considerably less

elaborate than the procedural safeguards constitu-

tionally required to protect a criminal defendant at

trial.

C. Determination Of A Suppression Motion In Ac-

cordance With Section 636(b)(1)(B) Sufficiently

Minimizes The Risk That Unconstitutionally Ob-

tained Evidence Will Be Erroneously Admitted

At Trial

As we have demonstrated above, suppression mo-

tions in general, and those regarding involuntary con-

fessions in particular, ordinarily do not implicate the

guilt or innocence of a defendant. See, e.g., Lego v.

Twomey, supra; Jackson v. Denno, supra, 378 U.S.

at 376-377; Rogers v. Richmond, supra, 365 U.S.

at 540-544. Therefore, “[s]ince the purpose that a

voluntariness hearing is designed to serve has noth-

ing whatever to do with improving the reliability of

jury verdicts,” Lego v. Twomey, supra, 404 U.S.

at 486, reference of suppression motion to a magis-

trate poses no “risk of an erroneous deprivation of”

a defendant’s liberty. See Mathews v. Elridge, supra,

424 U.S. at 335; Califano v. Yamasaki, No. 77-1511

(June 20, 1979), slip op. 13. Rather, all that is in

issue is the proper application of the exclusionary

ah EA Ne el Rath he Lund tei On PO.

rule in a particular case. We submit that Sections

636(b) (1) (B) and (C) adequately protect a defend-

ant’s interest in this regard.

1. Neither respondent nor the court of appeals

suggests that, as a matter of due process, an im-

partial magistrate could not conduct a suppression

hearing, so long as the district court thereafter de-

ferred to the magistrate’s findings. The concession

is well-warranted. Due process does require “a re-

liable and clear-cut determination of the voluntariness

of the confession.” Jackson v. Denno, supra, 378

U.S. at 391. It matters not, however, whether the

trial judge, another judge, a jury other than the trial

jury, or any other competent tribunal, resolves the

question of voluntariness. See id. at 391 n.19; Lego

v. Twomey, supra, 404 U.S. at 484 n.9. An impartial

magistrate is as capable as a judge or a jury of mak-

ing a reliable determination of the relative credibility

of respondent and the three government agents.

Therefore, where, as here, the magistrate is impartial

and the defendant is given a full opportunity to

present evidence and cross-examine the government’s

witnesses, the hearing itself does not deprive the de-

fendant of due process. See Jackson v. Denno, supra.

Thus, respondent must base his due process claim

solely on the fact that the district court made a

thorough (“de novo”) review of the magistrate’s pro-

posed findings rather than simply deferring to them.

Whatever validity that argument might have in

other contexts (see pages 52-55, infra), it certainly

has no merit in the circumstances of this case. As

we have already pointed out, at least in those cases

in which the district court ultimately adopts the

magistrate’s proposed findings, the Act ensures that

the aggrieved party has two substantial opportunities

to present his case prior to review in the court of

appeals. Had the district court simply deferred to

the magistrate, respondent would have had only one

bite at the apple. The district court’s de novo de-

termination of respondent’s suppression motion there-

fore enhanced the reliability of the magistrate’s in-

itial findings against respondent. As the Fifth Cir-

cuit recently explained (United States v. Whitmire,

supra, 595 F.2d at 1305) :

[Sections 636(b) (1) (B) and (C)] provide suf-

ficient safeguards both to ensure the integrity of

the factfinding process and retention by the

judge of final responsibility for ruling on the

motion. Indeed, the factfinding process may be

improved by the referral practice. In making a

final determination, the district court has the

benefit of a carefully developed record, a magis-

trate’s thoughtful consideration of the issues, and

argument of counsel regarding specifics not

agreeable to the parties.

Determination of a suppression motion in accord-

ance with the Act is thus at least as reliable as the

deferential review approved by the court of appeals.

In addition, there is no reason to believe that even a

two-hearing requirement would appreciably improve

the accuracy of the suppression decision. No set of

procedures—including a second hearing conducted by

the district judge—can totally eliminate the risk of

erroneous factfinding in the event that there is a

Pct wale PAA ah

le a

conflict in the testimony. See Speiser v. Randall, 357

U.S. 513, 525 (1958). Moreover, it is not self-evident

that the district court’s appraisal of the demeanor evi-

dence would be more accurate than the magistrate’s

previous evaluation of the witnesses’ credibility. In-

deed, there is a strong possibility that a second hear-

ing would be a less accurate gauge of the truth, since

the witnesses will have had an opportunity to re-

hearse their story and to shape their testimony. In

any event, this Court has made clear that a defendant

has no constitutional right even to an appeal in a

criminal case, much less to two full suppression hear-

ings in the district court. See, e.g., Griffin v. Illinois,

351 U.S. 12, 18 (1956); McKane v. Durston, 153

U.S. 684, 687-688 (1894).

2. The reliability and, we submit, constitutionality

of the Magistrates Act procedures are further evi-

denced by the widespread use of similar factfinding

processes in numerous situations involving quite sub-

stantial private interests. In virtually every admin-

istrative agency, the ultimate factfinder is a commis-

sion, board or administrator that has not personally

heard the witnesses testify. Most often, the findings

are based on a de novo review of the record developed

before an administrative law judge or hearing officer

and the submissions of the parties. See, e.g., 5 U.S.C.

557 (general rule under the APA) ; 29 U.S.C. 160(c)

(NLRB); 33 U.S.C. 921(b)(3) (Benefits Review

Board); 17 C.F.R. 201.17(g) (2) (SEC); 17 C.F.R.

10.104 (CFTC); 20 C.F.R. 404.939(a), 404.950(c),

416.1457(a), 416.1469 (Social Security Adminis-

tration). Although the administrative factfinder

neither hears the live testimony nor defers to the sub-

ordinate tribunal that has, there is no doubt as to the

validity of such procedures, provided that the fact-

finder reviews the evidence in some rational fashion.

See, e.g., Morgan v. United States, 298 U.S. 468

(1936) ; Universal Camera Corp. v. NLRB, 340 U.S.

474, 492-497 (1951); Utica Mutual Insurance Co. v.

Vincent, 375 F.2d 129, 131-132 (2d Cir.), cert.

denied, 389 U.S. 839 (1967) ; 2 K. Davis, Administra-

tive Law Treatise §§ 11.02 & 11.03 (1958). See also

Richardson v. Perales, 402 U.S. 389 (1971).”

In fact, it is well settled that the administrative

tribunal may reject the initial findings of the hearing

2° Morgan involved a decision of the Secretary of Agricul-

ture regarding the maximum allowable prices to be charged

by livestock marketing agencies. These agencies claimed

that the administrative proceedings had deprived them of

due process because the Secretary had made his decision

without reviewing the administrative record at all. The Court

agreed, observing that “[i]Jf the one who determines the

facts which underlie the order has not considered evidence

or argument, it is manifest that the hearing has not been

given.” 298 U.S. at 480-481. As the Court explained, how-

ever, “consideration of the evidence” does not mean that the

factfinder must hear the actual testimony:

This necessary rule does not preclude practicable ad-

ministrative procedure in obtaining the aid of assistants

in the department. Assistants may prosecute inquiries.

Evidence may be taken by an examiner. Evidence thus

taken may be sifted and analyzed by competent subordi-

nates. Argument may be oral or written. The require-

ments are not technical. But there must be a hearing in

a substantial sense.

Id. at 481.

a A co eget Ne ee hr oat ae et Ae eh eter ot ee

officer without rehearing the testimony even when the

initial findings are based on credibility determina-

tions. See Universal Camera Corp. v. NLRB, supra,

340 U.S. at 492-497. In those circumstances, the ad-

ministrative findings must be given the deference

to which they are otherwise entitled; however, in de-

termining whether there is substantial evidence in

the record as a whole to support those findings, a re-

viewing court is permitted to take into acount the

fact that “an impartial, experienced examiner who

has observed the witnesses and lived with the case has

drawn [different] conclusions.” Jd. at 496.

Accordingly, even where the magistrate recom-

mends that a suppression motion be granted, a

district court could reliably and constitutionally

make a de novo determination to deny the motion

without rehearing the evidence. Mildner v. Gulotta,

supra, 405 F. Supp. at 195. To be sure, if the sup-

8% Relying on United States ex rel. Graham v. Mancusi,

457 F.2d 463 (2d Cir. 1972), the court of appeals suggested

(Pet. App. 21la-22a) that this substantial body of adminis-

trative law was inapplicable because this was a criminal

case. But see Mildner v. Gulotta, supra (disbarment pro-

ceeding). However, as we have already emphasized, the

process due at a suppression hearing is not equivalent to that

required at a criminal trial. See pages 45-48, supra. Man-

cusi is also factually distinguishable. There the question

was whether an appellate court could convict a defendant

of a lesser included offense after it reversed the conviction

for the greater offense because the trial court had admitted

the defendant’s involuntary confession. Since that confession

related to both the greater and lesser offenses and since no

jury had ever passed upon defendant’s guilt of the lesser

offense in the absence of the tainted evidence, the court of

pression hearing were solely a swearing contest be-

tween a government agent and the defendant, and if

one statement were not inherently more credible than

the other, a district court could not arbitrarily dis-

regard the magistrate’s proposed findings if those

findings were based on the demeanor of the witnesses.

In such a circumstance, the district court might well

be required to adopt the magistrate’s proposed find-

ings or to rehear the testimony in order to make its

own credibility determination. See United States v.

Bergera, 512 F.2d 391 (9th Cir. 1975)." But that

situation is a far cry from the realities of this case.

Objective factors, such as respondent’s prior criminal

record, his admitted lies to the police on November

appeals correctly concluded that the defendant had been de-

nied due process and the right to a jury trial. 457 F.2d at 468-

469. Here, in contrast, an impartial magistrate made specific

findings regarding respondent’s testimony in the suppression

hearing and the district court made a de novo determination

based on its review of the entire record inciuding the magis-

trate’s report.

31 We do not agree with the Ninth Circuit that the district

court must always rehear the testimony if it rejects the

magistrate’s proposed findings. If, as here, there are objec-

tive factors in the record justifying the court’s conclusion,

neither due process nor the Act requires that the district court

hear the evidence previously evaluated by the magistrate.

This issue is not presented in this case, however, and re-

spondent may not complain because invocation of the Act in

other circumstances might raise more difficult constitutional

questions. See United States v. Raines, 362 U.S. 17 (1960).

Cf. Califano v. Yamasaki, supra, slip op. 18 (“The nature of

the due process hearing is shaped by the ‘risk of error in-

herent in the truthfinding process as applied to the generality

of cases, not the rare exceptions.’ ”’).

et A et

19, his implausible testimony regarding his arrest

on August 8, and the consistent and corroborating

statements of three law enforcement officers, all sup-

ported the district court’s de novo decision to deny

the suppression motion regardless of the magistrate’s

recommendation. See note 28, supra. More impor-

tant, it is worth repeating that here the district court

fully adopted the magistrate’s proposed findings and

recommendation.

D. Substantial Economic And Administrative Consid-

erations Justify Use Of Magistrates To Conduct

Pretrial Evidentiary Hearings

The final factor that must be considered in deter-

mining what procedures are constitutionally required

in a particular circumstance is “the Government’s

interest, including the function involved and the fiscal

and administrative burdens that the additional or

substitute procedural requirement would entail.”

Mathews v. Eldridge, supra, 424 U.S. at 335. See,

e.g., Richardson v. Perales, supra, 402 U.S. at 406;

Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973). Even

in the context of the criminal trial itself, “[d]ue

process does not require that every conceivable step

be taken, at whatever cost, to eliminate the possibility

of convicting an innocent person.” Patterson v. New

York, 482 U.S. 197, 208 (1977). Where, as here,

Congress has provided a reasonable and reliable

means of handling pretrial litigation not relating to

the guilt or innocence of defendants, the court of

appeals should have taken the “fiscal and administra-

tive burdens” into account.

First, underlying the enactment and subsequent

amendments of the Act is “Congress’ recognition that

a multitude of new statutes and regulations had

created an avalanche of additional work for the dis-

trict courts which could be performed only by multi-

plying the number of judges or giving judges addi-

tional assistance.” Mathews v. Weber, supra, 423

U.S. at 268; see, e.g., Wingo v. Wedding supra, 418

U.S. at 463; S. Rep. No. 94-625, supra, at 2-5; H.R.

Rep. No. 94-1609, supra, at 4-7. See also pages 23-24

& note 14, supra. In particular, Congress empow-

ered magistrates to hold pretrial evidentiary hearings

so that the district courts could spend more time

conducting the actual trials, many of which were sub-

ject to the mandatory provisions of the Speedy Trial

Act of 1974, 18 U.S.C. 3161 et seq. See, e.g., H.R. Rep.

No. 94-1609, supra, at 4, 7; S. Rep. No. 94-625, supra,

at 3-5; Hearings on S. 1283, supra, at 1, 4-7, 17-18,

36. The frequent and growing use of magistrates to

conduct pretrial hearings strongly indicates that the

Act is effectuating the congressional purpose. See page

25 & note 15, supra.

Thus, the conclusion that due process compels a

district court to rehear testimony already heard by an

impartial magistrate is directly at odds with the sub-

stantial public interest in relieving the overburdened

courts. As we have previously indicated, the court of

appeals’ decision will result either in two virtually

identical, full-dress evidentiary proceedings or (more

likely) in discontinued use of magistrates in a sub-

stantial number of cases. See pages 24-26, supra. The

consequent cost in terms of increased court congestion

is simply too high a price to pay for the minimal bene-

fits, if any, that would be derived from a two-hearing

requirement. See Richardson v. Perales, supra, 402

U.S. at 406.

Finally, Congress’ decision to enlist the aid of

magistrates rather than increase the number of dis-

trict judges reflects significant fiscal and administra-

tive policies. The cost of creating and annually fund-

ing a judgeship is at least twice that of a magis-

tracy. See, e.g., Hearings on S. 1283, supra, at 4 (“It

is our considered judgment that we cannot continue

to cope with this problém [of growing caseloads] by

increasing the number of district judges and the sup-

porting staffs of law clerks, secretaries, court clerks,

court reporters and other employees, with the concom-

itant need for huge additional physical space”) (re-

marks of Judge Metzner on behalf of the Judicial

Conference) ; Comment, An Expanding Civil Role for

United States Magistrates, supra, 26 Am. U. L.

Rev. at 68 n.8. Furthermore, in many instances

a magistrate is a more flexible means of address-

ing the congestion problem. A magistrate may be

hired part-time and may be readily assigned to dif-

ferent tasks in different court houses and even dif-

ferent districts as the need arises. See, e.g., H.R.

Rep. No. 94-1609, supra, at 9, 12-13. Given all of

these factors, and in view of the other considerations

mentioned above, Congress’ decision to permit magis-

trates to conduct evidentiary hearings on pretrial mo-

tions in criminal cases, subject to the district court’s

de novo determination of the motion, is reasonable and

fully consistent with the dictates of due process.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

Wapbe H. McCree, Jr.