Respondents Brief — Chavez-Tesina v. United States (Nos. 88-5158, 88-5014)

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Wy,

Nos. 88-S044 and 88-5158

In the Supreme Court of the Bn

OCTOBER TERM, 1988

JOSE GOMEZ, PETITIONER p

UNITED STATES OF AMERICA

DiEGO CHAVEZ-TESINA. PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRC UII

BRIEF FOR THE UNITED STATES

WILLIAM ©. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS. JR

Assisiani Attorney General

RICHARD J. LAZARUS

Assistant to the Solicitor General

J. DOUGLAS WILSON

Alforne,

Depariment of Justice

Washingion, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

|. Whether the Federal Magistrates Act, 28 U.S.C.

631 ef seqg., permits a district court to delegate jury selec-

tion to a federal magistrate.

2. Whether a district court’s Getegation of jury selec-

tion to a federal magistrate violates Article [Il of the Con-

stitution where the district court provides de novo review

of the magistrate’s selectign-of jurors

eee eee tie ee &

Pinsures, Inc., 242 F.2d 1037

fe a4 (i973) : _ 9

Pea Sh 974) 42

a Sa

Cases — Continued

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

Mistretia v. United States, 109 S.Ct. 647 (1989) .

Northern Pac. R.R. v. Herbert, 116 U.S. 642 (1886)

Northern Pipeline Co. v. Marathon Pipe Line Co., 458

U.S. §0 (1982)

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

Perry v. Leeke, 1098S. Ct. $94 (1989)

Philadelphia Newspapers, Inc. v. Jerome, 434 U.S. 241

(1978)

Pointer v. United States, 181 U.S. 396 (1895)

Pope v. Illinois, 481 U.S. 497 (1987)

Press-Enterprise Co. y. Superior Court of California,

464 US. SO] (1984)

Richardson-Merrill, Inc. v. Koller, 472 U.S. 424 (1985)

Ristaino v. Ross, 424 U.S. 589 (1976)

Rock v. Arkansas, 107 S. Ct. 2704 (1987)

Ross v. Oklahoma, 108 8. Ct. 2273 (1988)

Rushen v. Spain, 464 U.S. 114 (2983)

Serfass v. United States, 420 U.S. 377 (1975)

Swain \. Alabama, 380 U.S. 202 (1965)

Swain v. Pressley, 430 U.S. 372 (1977)

Tavtor v. Louisiana, 419 U.S. $22 (1975)

Tumey v. Ohio, 273 U.S. $10 (1927)

United States v. Ford, 824 F.2d 1430 (Sth Cir, 1987), cert

denied, 108 S. Ct. 741 (1988) .

United States v. Hvass, 385 U.S. §70 (1958)

United States v. Marchant, 25 U.S. (12 Wheat.) 480

(1827)

United States v. Peacock, 761 F.2d 1313 (9th Cir},

" cert. denied, 474 U.S. 847 (1985)

nited States \. Raddatz, 447 U.S. 667 (1980)

Linitted States v. Rivera-Sola, 713 F.2d 866 (ist Cir

1984)

United States v. Rodriguez-Suarez, 836 F.2d 135 (iith

Cir. 1988), cert. demed, 1098. Ct. 875 (1989)

busque: \. Hillery, 474U.S. 254 (1986)

Wineo v. Wedding, 418 U.S. 461 (1974)

Witherspoon v. Illinois, 991 U.S. $10 (1963)

Constitution, statutes and rules

US. Const

Art ll

Page

§, 41

29, 31

91)

31, 37

12-13

passim

1Y, 41

pussim

Constitution, statutes and rules — Continued: Page

Amend. IV . 32

Amend. V-... Sone 32

Due Process Clause 49

Amend. VI Enee 32

Confrontation Clause 42

Federal Magistrates Act, Pub. L. No. 90-578, § 101, 82

Stat. 1108 (1968) |. aie

28 U.S.C. 631 ef seg. .. ?

28 U.S.C. 631(b),S)

28 U.S.C. 633 2

a6 to. Gee: 7: 28

28 U.S.C. 636(a) . . 13

28 U.S.C. 636(an1) 18

28 U.S.C. 636(b)....... 19

28 U.S.C. 636(b)(1) 7,9, 11, 13, 15, 16, 30

28 U.S.C. 636¢bM TA) 7, 11, 16

28 U.S.C. 636(b)(1 )(B) | s

28U S.C. 636(bMI WC) 8, 16

28 U.S.C. 636(b)3) |. Ha, 22, 13, 17,49, 25

28 U.S.C. 636(b)4) 16

28 U.S.C. 636(c) , 14, 38

Jury Selection and Service Act of 1968, 28 U.S ©. 1861

et Seq. 11, 29

28 U.S.C. 1867(a) 12

Is U.S.C. 19§2 2

IS U.S. 1962(c) 2

ist) S.C. 3401(a) i4

21 U S.C. 84l(anl) 2

21U S.C. 846 2

23 USC. 604(d)(4) 27

Fed. R. Crim. P.:

Rule 23 10

Advisory Committee notes 0

Rule 24 10, 11, 12, 93

Advisory Committee notes (1966 Amendment) 10

Rule 54 12

Advisory Committee notes (1972 Amendment) 12

MLD. Ala. R. 3c). - 23

ND. Ala. Mag. KR. 4¢f) 22

Sratutes and rules — Continued:

S.D. Ala. Mag. R. 26(1):)(6)

1). Alaska R. 3(2)

D>. Ariz. R. 18(d)(6)

C.D. Cal. Mag. R. 1.76

E.D. Cal. R. 30342)

N.D. Cal. R. 40S(2)

S.D. Cal. R. S01-8(f)

D. Colo. R. 303(2)

D. Conn. Mag. R. |

D>. Del. Mag. R. 10:6)

D. D.C. R. S501(b)16)

M.D. Fla. R. 6.01(¢)(20)

N_D. Fla. R. 240) (2c) 1)

S.D. Fla. Mag. R. (1)0)(6)

S.D. Ga. R. 21.5

D. Haw. R. 401-8(1)

D. Idaho R. 4-101U)(6)

C.D. HL R. Hays)

N.D. HEL R. 170A)

S.D. Hh R. 29006)

N_D. Ind. R. M-1a)9)

S.D. Ind. R. M-13

ND. lowa R. 3104)

S.D. lowa R. 31QG)4)

D. Kan. R. 60106)

F.D. Ky. R. 18(a)

WD. Ky. R. 18ta)

E.D. La. R. 20.7()

M.D. La. R. 26(c))05)

WD. La. R. 28(an9 pe)

D Me. R. Sic)

ED. Mich. R. C-10))(6)

we Ww WH NH MN WH Ww

JdJWNwWN Ww WY WMH WS NO WN Ww Nw

3d Ww Ww NH WH Ww Wh th

Vil

Statutes and rules — Continued:

W.D. Mich. Mag. R. I(hy(S) . 6...

oe Se . e

oe 8 errr

ee Serer

E.D. N.C. R. 62.0%(f) ..

a ||

D. N.D. R. 28(c)(4) .....

D. N.H. Mag. R. D(3) ....

. 3. GRAMS) .2...... 6.

D. N.M. R. 27(a) .

E.D. N.Y. Mag. R. 1 ..

S.D. N.Y. Mag. R.1....

N.D. Ohio R. 19. 10(2)

a. Gap e. 24.4 ....

S.D. Ohio (W. Div'n) R.101)(6)

N_D. Okla. R. 32(6)(12) .

ED. Okla. R. 32

D. Or. R. 135-i(b) ....

ED. Pa. R. 7(1)(6)

M.D. Pa. R. 901.9(a(7)

WD. Pa. Mag. R. 6(e)

D. PLR. R. 506.6 |

D. RL. R. 32(e5)

DSC. R. 19.01

tE D. Tenn. R. 21.2(d) .

\ID. Tenn. R. 601(a)(2)

WD. Tenn. R. 176)

E.D. Tex. R. 15

W.D. Mo. R: 22(K)(6) .......... |

D. Mom. R. 400-1 .............. a

D. Neb. R. 44(1)(6) ...... 22.2.0...

~a YY hw

mw NNN NM NM WNW

wo le

MN WYN NY NM NN NM NN WwW NM WNW tv

ww Mw we Mw le

a a

ee ee ee ee a en ee ee ee ee

we Ww Ww WH & Ww NW Ww hh hl

Vill

Cases — Continued: Page

i, Me Oe elulet we Nate aks eee 23

rr ee Gee. sak Rab iee ass one stteeeee 23

Peer ee 22-23

ON Nc ck hc ce sa eeleg chk i ab eee es 23

ee I, EE ES NEN co's van cocsunesececeneenes 23

ee cep so ccd sh bce enebevewcene 23

eX fe OR Pra ee reer rere 23

ee ee ee cals c6 eine taeh wate ea 23

Miscellaneous: :

1 Administrative Office of the United States Courts,

Legal Manual for United States Magistrates .......... 26

Administrative Office of the United States Courts, Ann.

Peper prec ss vote Terre rT irr Terrie 20, 24

Comptroller General, Report to Congress, The U.S.

Magistrates: How Their Services Have Assisted Ad-

ministration of Several District Courts; More Im-

provements Needed, reprinted in Improvement of

Judicial Machinery: Hearings Before Subcomm. on

Courts, Civil Liberties, and the Administration of

Justice of the House Comm. on the Judiciary, 94th

isd Be NN OED oa vo nk 0d Ons So dolecuienases 23

114 Cong. Rec. (1968):

ee oon ceed baad tance s Caeenew nes 27

ee CLS A oan we fe ban Ee taeeey 18

EE nea K eysWG.c vs Oe bane ce Ode ba Keee ees S 28

p. 28,360 ...... err US Cr ate aig dhe aot oe ak 19

we yee eee ee ee 19

ET oven ccs Chcens eho eRe Seah eee meee 18

eepe Me eT. PREP ee ETT eT ee eee 27

Federal Magistrates Act: Hearings on §. 3475 and S. 945

Before the Subcomm. on Improvements in Judicial

Machinery of the Senate Comm. on the Judiciary,

89h Cong., 2d Sess. and 90th Cong., Ist Sess.

CE So en eon ectials ake ees Memes 17, 18, 27

Federal Magistrates Act: Hearings on S. 945, etc., Before

Subcomm. No. 4 of the House Comm. on the Judi-

clare, Tals Cone... BB Same. COORD «ow ccc emia: 17, 18

Miscellaneous — Continued:

_ Page

9 W. Holdsworth, A History of English Law 183 (3d ed.

ROWE comes watw eure ¥eedu sc beors ice ice 31

H.R. Rep. No. 1629, 90th Cong., 2d Sess. (1968)... 14, 18

H.R. Rep. No. 1609, 94th Cong., 2d Sess. (1976)... 11, 19,

20, 25, 27, 36, 41

H.R. Rep. No. 287, 96th Cong., Ist Sess. (1979)... 14

Judicial Conference, Report of the Subcommittee As-

signed to Study the Conduct of Voir Dire by Federal

ee oe Rp

Jurisdiction of United States Magistrates: Hearing on

S. 1283 Before the Subcomm. on Improvements in

Judicial Machinery of the Senate Comm. on the

Judiciary, 94th Cong., Ist Sess. (1975) ....... 15-16, 19,

20, 23, 25, 27, 41

W.R. LaFave & J.H. Israel, Criminal Procedure (1984) _. s

Magistrate System: Hearings Before the Subcomm. on

Improvements in Judicial Machinery of the Senate

Comm. on the Judiciary, 924 C ong., 2d Sess.

eee SORE EE poe NAP Spee Re Beg

Moore, Voir Dire Examination of Jurors: 1. The English

Practice, 16 Geo. L.J. 438 (1928)... Pe 31

2 M. Rhodes, Orfield’s Criminal Procedure Under the

Federal Rules (2d ed. 1986) ......... s

S. Rep. No. 371, 90th Cong., Ist Sess. (1967) .

S. Rep. No. 371, 90th Cong., 2d Sess. (1968) | 14, 18, 27

S. Rep. No. 625, 94th Cong., 2d Sess. (1976) 11, 19,

20, 25, 27, 41

S. Rep. No. 74, 96th Cong., Ist Sess. (1979) 4

J. Thayer, A Preliminary Treatise on Evidence at the

Common Law (1898)... . «|. wees 3]

The Omnibus Judgeship Bill: Hearing Before the

Subcomm. on Improvements in Judicial Machinery of

the Senate Comm. on the Judiciary, 93d ¢ ong., Ist

Sess. (1973) _._.. ayes eae 3

Miscellaneous — Continued:

C. Wright, Federal Practice and Procedure: Criminal 2d

(1982)

Page

Jn the Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-5014

JOSE GOMEZ, PETITIONER

vy.

UNITED STATES OF AMERICA

No. 88-5158

DiEGO CHAVEZ-TESINA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRC UT)

BRIEF FOR THE UNTIED STATES

OPINION BELOW

The opinion of the court of appeals (J.A. 21-48) is

reported at 848 F.2d 1324.

JURISDICTION

The judgment of the court of appeals was entered on

June 1, 1988. A petition for rehearing was denied on

August 4, 1988 (J.A. 49-50). The petition for a writ of

(1)

certiorari in No. 88-5014 was filed on July 5, 1988, and the

petition for a writ of certiorari in No. 88-5158 was filed on

July 22, 1988. A supplemental petition for a writ of cer-

tiorari in both cases was filed on October 3, 1988. The

jurisdiction of this Court ts invoked under 28 U.S.C.

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory provisions are

reproduced at App., infra, la-4a.

STATEMENT

Following a jury trial in the United States District Court

tor the Eastern District of New York, petitioners Jose

Gomez and Diego Chavez-Tesina were convicted of

possessing cocaine with intent to distribute it, in violation

of 21 U.S.C. 841(a)(1), and conspiring to do the-same, in

violation of 21 U.S.C. 846. Petitioner Chavez-Tesina was

also convicted of conducting a narcotics racketeering en-

terprise, in violation of 18 U.S.C. 1962(c), and interstate

travel in aid of racketeering, in violation of 18 U.S.C.

1952. Petitioner Gomez was sentenced to a total of ten

years’ imprisonment and a ten-year special parole term.

Petitioner Chavez-Tesina was sentenced to a total of 20

years’ imprisonment and a lifetime term of special parole.

The court of appeals affirmed (J.A. 21-48).

|. Prior to petitioners’ trial, the district court assigned

the task of jury selection to a magistrate. The assignment

was made pursuant to a local rule authorizing magistrates

to perform the duties set forth in the Federal Magistrates

Act, 28 U.S.C. 631 ef seq. Petitioners’ counsel initially

consented to the assignment,' but they subsequently ob

jected before the magistrate at the beginning of jury selec-

tion (J.A. 13-15). The magistrate consulted with the

district judge, noted the objection, and proceeded to select

the jury (J.A. 16-17). The magistrate allowed the govern-

ment a total of seven peremptory challenges and allowed

petitioners and their three co-defendants a total of 14

peremptory challenges (J.A. 6). In order to ensure a jury

of 12 and four alternates, the magistrate empaneled 37

prospective jurors (ibid.).

During jury selection, the magistrate explained the

nature of the charges against petitioners and their co-

detendants. The magistrate then questioned the venire at

length concerning each prospective juror’s ability to be fair

and impartial in considering the evidence.? When asked by

the magistrate whether additional questions were needed,

defense counsel did not suggest any further questioning

(2/9/87 Tr. 124-125). The magistrate excused 20 prospec-

live jurors based on their responses to his questions

(2/9/87 Tr. 21-22, 43, 55, $8, $9, 71, 73, 74, 75, 83, 91-93,

94, 127, 131). The magistrate also excused the only pro-

spective juror the defendants challenged for cause (id. at

125-126).’ After the parties exercised their peremptory

' Al a pretrial conference held on November 20, 1986, the district

judge assigned jury selection to the magistrate (JA. 1). As petitioners

note (Br. 2 n.2), the court reporter's notes for that conference cannot

be located and, consequently, have not been transcribed. As subse

quently described by the district judge, however, petitioners’ counsel

had previously “agreed * * * that the magistrate would do it" (JA

18)

* The voir dire of February 9, 1987, has only recently been

iranscribed. Petitioners have lodged a copy of that transcript with the

( ourt

' The magistrate declined to excuse for hardship a prospective juror

who had an ill relative. No counsel objected to the magistrate’s action

challenges, 20 prosnective jurors remained, four of whom

were excused by the magistrate (id. at 132).

Following the magistrate’s selection of the jury, the

district judge considered the defendants’ objections to the

magistrate’s authority. The judge inquired whether “there

is any One juror for whom a challenge for cause was not

sustained by [the magistrate)” and whether any party

would “like to renew the objection” (J.A. 18). The judge

also offered de novo review of any of the magistrate’s

selection decisions (J.A. 19). Counsel for petitioners did

not respond to the invitation and counsel for a co-

detendant explained that he sought to raise only “a

jurisdictional issue, not an issue to a specific juror” (ibid. ).

2. The court of appeals affirmed (J.A. 21-48). The

court concluded that, consistent with both the Federal

Magistrates Act and Article Ill of the Constitution, a

district judge may delegate jury selection to a magistrate.

The court rejected petitioners’ statutory claim that Con-

gress authorized the delegation of only “pretrial matters”

tO magistrates and that “pretrial matters” do not include

vor dire (J.A. 29). According to the court, “even assum.

ing arguendo that jury selection falls on the ‘trial’ side of

the line between ‘trial’ and ‘pretrial,’ the legislative

history “plainly states that the [Magistrates Act] grants to

district courts the treedom to experiment beyond duties

traditionally categorized as ‘pretrial’ ” (ibid. (emphasis

omitted)). The court also rejected petitioners’ assertion

that by requiring the parties’ consent to the delegation of

civil and misdemeanor criminal trials to magistrates, Con-

gress intended to allow the delegation of jury seteoion

only with the parties’ consent (J.A. 30). Jury selection, the

im that regard or otherwise challenged the prospective juror for cause

See 2/9/87 Tr. 87, 93-94

court explained (ibid.), is a function “separate and

distinct” from “holding of an entire trial.”

The court also rejected petitioners’ claim that, even if it

is authorized by statute, the delegation of jury selection to

magistrates violates Article HL (J.A. 30-37). According to

the court, jury selection can be delegated to a non-Article

11 judge without violating Article Ill, because “the

delegation of authority occurs entirely within the judicial

branch, a circumstance which alleviates greatly the

underlying structural separation of powers concern with

one branch encroaching upon the power of another” (JA.

33 (emphasis in original)). The court also concluded that

where, as in this case, an Afticle II] judge retains the

authority to review de novo the magistrate’s selection deci-

sions, delegation would not offend Article II even if jury

selection were deemed “inherently judicial.” The avail-

ability of de novo review, the court explained, “vested the

ultimate decision regarding the composition of the jury

with the trial court” (J.A. 33-34). Finally, the court re-

jected petitioners’ claim that Article II] requires an Article

11 judge te be present during jury selection (J. A. 38-37)

The court declined to adopt petitioners’ “debatable

hypothesis” that “the lack of an Article IIL judge’s physical

presence at voir dire is somehow demeaning to potential

jurors” (J.A. 36).

INTRODUCTION AND SUMMARY OF ARGUMENT

Congress enacted the Federal Magistrates Act in order

to provide federal district courts with assistance in handling

the avalanche of civil and criminal matters that threat-

ened to overwhelm them. See Mathews v. Weber, 423.US

261, 260-269 (1976). The purpose of the Magistrates Act

Was to encourage the use of magistrates for judicial tasks

tar beyond those previously undertaken by United States

“magistrates woutdt

= hot distinguishable from Raddatz in any

ct. Here, as in Raddatz, the district judge ex-

O review, leaving “the entire process * * *

st court’s total control and jurisdiction”

with the use of magistrates so that th - 683). Contrary to petitioners’ claim,

dispense justice more nd expedit ver, I omnip of voir dire to the jury’s verdict

Congress's awareness, the use of magistrate : no ore imi € thamrts a suppression motion. Nor is

ton in both criminal and civil Coe | caning ool : novo review of voir dire impossible. In

portant aspect of this program. ‘pra sircumstances, the judge will likely find it adequate

consistent with Congress's Sue dire transcript and hear argument by

commissioners in order to permit rt

focus their attention on their most

responsibilines. To that end, Congress

tion and specifically called on federal cc

Magistrates Act and’ does not offt mt ticle | ogyegeo d, if circumstances

in this case. i a ib y the pumae. And . if warrant, the judge is of

——— ) redo the magistrate’s work in whole or in

Contrary to petitioner's MISSION, JULY | 5 sails cs

within the wide range of duties Congr . ¢ =

a district judge to delegate to 4 magist

of the Magistrates Act is broad and ad

substantial restrictions on .

tioners propose. The legislative h

that Congress intended magis

Variety of duties, and was

“asp because petitioners did not ob-

quality of the voir dire or to the magistrate’s

| io al OF excuse any prospective juror, they can-

nplain that the review they received was somehow

a ARGUMENT

EDERAL MAGISTRATES ACT AUTHORIZES

CE COURTS TO DELEGATE JURY SELECTION

i” bates 2 ” ‘ TES

e t ion. 636 of the Magistrates Act outlines the

tion and powers of magistrates. Two different

$< of Seton 636 support the district judge's deci-

€ jury selection to the magistrate in this

lioners’ proposed construction of t

retuted by the views expressed by

Conterence committee and the Adminis

the United States Courts, which worked ‘

gress during the enactment of the

which agree that magistrate iy

under the Act.

There is likewise no merit to

cle LI forbids magistrates from ex

Court rejected a very similar ¢

Raddatz, 447 U.S. 667 (1980). Th

that allowing a magistrate to ¢

ing does not violate Article I w

posed tindings and recommen

novo review by the district jude

: n 636(b)(1) provides that “a judge may

rate to hear and determine any pretrial

F ielare the court."* While the term

exception in fiscilon 636(bM IMA) for certain matters has no

on thi nis case, Jury selection is not among those matters ex

id and, in any event, the exception is solely for the purpose ot

atin ing a uc ‘novo determination by the district judge in those in-

“pretrial,” standing alone, is subject to differing inter-

pretations, it may reasonably be read in this context to in-

clude jury selection. Jury selection is logically distinct

from, and antecedent in time to, the trial itself, which

commences with the swearing in of the jury, o>ening

Statements, and the introduction of evidence.

The question when a trial begins is perhaps most impor-

tant in the double jeopardy context. The issue is important

in that setting because the constitutional prohibition does

not apply until a defendant is “put to trial before the trier

ot the facts.” Serfass v. United States, 420 U.S. 377, 388

(1975); see Press-Enterprise Co. v. Superior Court of

California, 464 U.S. 501, 509 n.8 (1984). And in that set-

ting, the Court has held that the trial begins after the “jury

is empaneled and sworn” (420 U.S. at 388).

The characterization of jury selection as a “pretrial”

procedure is not limited to the double jeopardy setting.

Rather, this Court and the leading commentators have

commonly reterred to voir dire as occurring prior to trial.

See, e.g., Frazier v. United States, 335 U.S. 497, 513

(1949) (emphasis added) (“After accepting [the jurors]

before trial, |the defendant] could not challenge them suc-

cessfully in a motion for a new trial.”); 2 C. Wright,

Federal Practice and Procedure: Criminal 2d § 381, at 342

(1982) (“the voir dire is held immediately before the trial

commences”); 2 M. Rhodes, Orfield’s Criminal Procedure

Under the Federal Rules § 25.15 (2d ed. 1986) (“until a

jury is sworn, there is not a trial”); W.R. LaFave & J.H.

Israel, Criminal Procedure § 21.3, at 723 (1984) (“In most

stances in which a magistrate hears and recommends a particular

disposition to which a party objects (see 28 U.S.C. 636(b)(1)(B) &

(C)). Hence, the statute allows magistrate consideration of even those

pretrial matters nominally “except{ed]” from the grant of magistrate

authority

localities, it is the practice to conduct the voir dire and

select the jury immediately preceding the trial of the case

in which that jury is to serve.”). It is therefore reasonable

tO view voir dire as a “pretrial matter” within the meaning

ot Section 636(b)(1).

This Courts’ precedents do not establish that jury selec-

tion is part of the “trial.” There is therefore no basis for

petitioners’ contention (Br. 15-16) that Congress could not

have intended in the Magistrates Act to include voir dire as

a “pretrial matter.” While the Court has referred in certain

cases to the fact that a “trial judge” conducted voir dire,

Pet. Br. 15, citing Ristaino v. Ross, 424 U.S. 589, 595

(1976), and Ham v. South Carolina, 409 U.S. 524, 528

(1973), that is not any indication that the Court views jury

selection as part of the trial. As demonstrated by

numerous Other instances in which the Court has similarly

referred to participation by a “trial judge” in pretrial ac-

tivities, the Court uses that expression interchangeably

with “district court” and without any intention to label a

particular activity as part of the “trial.”

The other decisions of this Court on which petitioners

rely (Br. 15-16) likewise do not address this issue. The

Court commented in Swain v. Alabama, 380 U.S. 202, 219

(1965), that the peremptory challenge is a “necessary part

* See, e.g., Beech Aircraft Corp. v. Rainey, 109 S. Ct. 439, 444

(1988) (emphasis added) (“The sria/ judge determined, at a pretrial

conterence * * *."); Rock v. Arkansas, 107 8. Ct, 2704, 2707 (1987)

(emphasis added) ("The (rial jutige held a pretrial hearing on the mo-

tron * * *."), Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 427

(1985) (emphasis added) (“the tria/ judge issued a pretrial ruling

* °°"), Massachusetts v. Sheppard, 468 U.S. 981, 987 (1984) (em-

phasis added) (“At a pretrial suppression hearing, the fria/ judge con-

cluded * * *."); Philadelphia Newspapers, Inc. v. Jerome, 434 US.

241, 241 (1978) (per curiam) (emphasis added) (“the (rial judges closed

all pretrial hearings”).

of trial by jury,” but in context it is clear that that com-

ment was meant simply to emphasize that the peremptory

challenge is “‘one of the most important of the rights

secured to the accused.’ ” /bid., quoting Pointer v. United

States, 151 U.S. 396, 408 (1895). The Court in Swain did

not purport to address the quite different question

whether the trial itself should be deemed to begin before or

after the selection of the jury.

Petitioners note (Br. 16) that Fed. R. Crim. P. %3 and

24, which address jury issues, appear in that portion of the

Rules entitled “Trial.” The placement of those Rules,

however, does not suggest that Congress (or this Court)

believes that jury selection is part of the trial itself, rather

than a “pretrial” proceeding. The Federal Rules of

Criminal Procedure do not, by their internal subheadings,

purport to distinguish between pretrial and trial matters.°

Rule 23, moreover, is simply a “formulation of the con-

sututional guaranty of trial by jury” and does not address

jury selection at all (see notes of Advisory Committee ac-

companying Rule 23). And while Rule 24 does describe

how “trial jurors” are to be selected from the venire, its

distinction between “trial jurors” and “prospective jurors,”

from whom the former are chosen, logically suggests that

the selection process is not itself part of the trial. The notes

ot the Advisory Committee accompanying the 1966

amendment of Rule 24 likewise show that the Committee

viewed the jury selection process as distinct, and

preliminary to, the trial itself. See 1966 Advisory Commit-

tee notes (emphasis added) (“an alternate juror may be

* The various subheadings include “scope, purpose, and construc- .

tion,” “preliminary proceedings,” “indictment and information,” “ar

raignment and preparation for trial,” “venue,” “trial,” “judgment,”

“appeal,” “supplemental and special proceedings,” and “general provi

”

SIONS

called in the situation where it is first discovered during the

(rial that a juror was unable or disqualified to perform his

duties at the time he was sworn’).

2. While we believe that jury selection can be assigned

(O a magistrate as a “pretrial” matter under Section

636(b)(1), there is an alternative basis in the statute to

authorize magistates to perform that function. Section

636(b)(3) authorizes a district judge to assign to

magistrates “such additional duties as are not inconsistent

with the Constitution and laws of the United States.” The

purpose of that subsection is to permit district judges “to

experiment in the assignment of other duties to

magistrates which may not necessarily be included in the

broad category of ‘pretrial matters’” (S. Rep. No. 625,

94th Cong., 2d Sess. 10 (1976); H.R. Rep. No. 1609, 94th

Cong., 2d Sess. 12 (1976)).

In drafting Section 636(b)(3), Congress wrote broadly.

The only limitations on the authority of courts to assign

matters tO magistrates are those posed by “the Constitu-

tion and laws of the United States.” In order to prevail

betore this Court, petitioners must therefore point to some

“law” or constitutional provision that bars the delegation

of jury selection to magistrates.’

To that end, petitioners argue (Br. 25-27) that Fed. R.

Crim. P. 24 and the Jury Selection and Service Act of

1968, 28 U.S.C. 1861 ef seqg., prohibit a magistrate from

' It the Court concludes that jury selection is a “pretrial matter,”

within the meaning of Section 636(b)(1)(A), petitioners are left only

with their constitutional claim. While delegations under Section

636(b)(3) cannot be made if they are “inconsistent with the * * * laws

of the United States,” delegations pursuant to Section 636(b)(1) are

permitted “[njotwithstanding any provision of law to the contrary.”

As petitioners implicitly concede (Br. 27), the presence of that

language in paragraph (1) removes any possible argument based on

any “laws ot the United States” other than the Constitution.

conducting voir dire and thus limit the scope of Section

636(b)(3). Petitioners’ reliance on these “laws” 1; mis-

placed, however, because neither precludes a magistrate

from conducting voir dire at a judge’s request.

Section 1867(a) of the Jury Selection and Service Act,

on which petitioners rely (Br. 26-27), simply describes the

procedures that must be followed in bringing a challenge

to the selection of a grand or petit jury on the ground of

noncompliance with a provision of the Act. The statutory

provision nowhere intimates that only a district judge may

conduct voir dire; nor does it even suggest that a

magistrate could not consider a statutory challenge to jury

selection procedures at a judge’s request.

Rule 24 likewise does not purport to address the

lawfulness of magistrate-conducted voir dire. It states that

a court “may” permit the defendant or his counsel to con-

duct voir dire and that a court “may” conduct the ex-

amination “itself.” Rule 24 does not bar a district judge

from asking the magistrate to conduct voir dire, nor does

it otherwise indicate that the judge must be present during

voir dire. Significantly, Rule 24 uses the term “court,” not

the term “judge,” to refer to the officer presiding over the

jury selection process. The term “judge” is the term that is

“used in the rules to indicate that only a judge (not to in-

clude a United States magistrate) is authorized to act.”

Notes of the Advisory Committee accompanying 1972

amendment to Rule 54. The use of the term “court” is

therefore consistent with the performance of duties by

either a judge or a magistrate.

Even if Rule 24 could be read to provide that only a

judge may conduct voir dire, Rule 24 is not a “law[{]} of the

United States,” within the meaning of Section 636(b)(3).

While a court rule has been found in another context to

constitute a “law of the United States,” see United States

v. Hvass, 355 U.S. 570, 575 (1958),* court rules ordinarily

do not have that status, and the language of the

Magistrates Act itself supports the view that that general

principle applies in this context. Section 636(a)(1) provides

that each magistrate shall have “all powers and duties con-

ferred or imposed upon United States commissioners by

law or by the Rules of Criminal Procedure for the United

States District Courts” (emphasis added). The statutory

_ juxtaposition strongly suggests that, for purposes of Sec-

tion 636, Congress did not intend to equate “law” with the

Federal Rules of Criminal Procedure, including Rule 24.

B. The legislative history of the enactment of the

Magistrates Act in 1968 and its amendment in 1976 does

not provide a clear answer to whether voir dire is a

“pretrial matter,” within the meaning of Section 636(b)(1),

rather than an “additional dut[y],” within the meaning of

Section 636(b)(3). But the history leaves no doubt that,

however denominated, the conduct of voir dire falls within

one of those two categories and can therefore properly be

delegated to a magistrate under the Act. Indeed, the legis-

lative history shows that the very reason Congress amend-

ed the Act in 1976 was to overcome the type of crabbed

construction now advanced by petitioners. It also shows

* tn Hvass, the Court concluded that an attorney who made a

willtully talse statement while under oath pursuant to a local federal

court rule was subject to criminal prosecution for perjury. The Court

reasoned that “[t}he phrase ‘a law of the United States,’ as used in the

perjury statute, is not limited to statutes, but includes as well Rules

and Regulations which have been lawfully authorized and have a clear

legislative base” (355 U.S. at 575).

that Congress was repeatedly made aware that jury selec-

tion was among those tasks being performed by magis-

trates, and that Congress sought to expand, rather than

restrict, the functions magistrates could perform.

1. Relying on Holy Trinity Church v. United States,

143 U.S. 457 (1892) (see Br. 13), petitioners argue that the

structure and legislative history of the Magistrates Act

trump what might otherwise appear to be the plain mean-

ing of the statute. According to petitioners (Br. 12-22), the

structure and history of the Act show that Congress con-

sidered jury selection an “integral part” of a “felony trial,”

which Congress specifically excluded from magistrate

jurisdiction, and that, notwithstanding the sweeping terms

of the Act, Congress intended to restrict a magistrate’s

“additional duties” to “routine nonjudicial burdens” and

“nonadjudicative tasks.” The Act’s structure and legisla-

tive history, however, support neither assertion. ~

To be sure, Congress did not intend to authorize

magistrates to conduct felony trials. The Act makes that

clear by explicitly giving magistrates the authority to try,

with the parties’ consent, both misdemeanor offenses and

civil matters, but not felony offenses (see 18 U.S.C.

3401(a), 28 U.S.C. 636(c)).* But there is no suggestion in

the statute or legislative history that Congress considered

jury selection to be part of the felony trial for these p>.

poses and thus intended to bar magistrates from conduct-

ing voir dire.

* The legislative history makes that point clear as well. See, e.¢.,

H.R. Rep. No. 1629, 90th Cong., 2d Sess. 20-22 (1968); S. Rep. No

371, 90th Cong., 2d Sess. 29-33 (1968); H.R. Rep. No. 287, 96th

Cong., Ist Sess. 2, 17 (1979); S. Rep. No. 74, 96th Cong., Ist Sess

5-7, 17 (1979).

Petitioners’ assumption that Congress considered voir

dire to be part of trial is a flaw that runs throughout their

brief and infects their entire presentation. For example,

petitioners assume (Br. 24) that magistrates were unable to

conduct voir dire in misdemeanor cases in 1976 because

the statute then “required misdemeanor defendants to

waive their right to a jury trial in order to be tried by a

magistrate.” The fact that magistrates could not preside

over misdemeanor jury trials in 1976, however, does not

compel the conclusion that they could not then conduct

voir dire tor misdemeanor trials. Hence, petitioners are

wrong in concluding (Br. 24) that “if the court of appeals

is correct, Congress in 1976 authorized magistrates to

select felony juries over the defendant’s objection, but

prohibited magistrates from selecting misdemeanor juries

with the defendant’s consent.” There is no such anomaly

because the magistrates could select misdemeanor juries

with or without the defendant's consent in 1976; they

simply were unable to preside over the jury trial itself.

At bottom, petitioners’ statutory argument rests on their

assertion (Br. 16-18) that Congress’s failure to refer

specifically to jury selection in Section 636(b)(1) con-

clusively shows that Congress did not intend to confer

such authority on magistrates. Thus, petitioners argue (Br.

16) that Congress failed “to provide any framework for

district court review of magistrate-conducted felony jury

selection.” Petitioners’ reasoning is flawed, however,

because, as both the language and legislative history make

clear, Congress did not purport to list in Section 636(b)\(1)

all those specific “pretrial matters” that could properly be

Gelegated to a magistrate. Congress instead referred

broadly to “any” pretrial matter, and it clearly intended

tlexibility rather than rigidity to be the touchstone for the

statute’s implementation. See, e.g., Jurisdiction of United

States Magistrates: Hearing on S. 1283 Before the Sub-

comm. on Improvements in Judicial Machinery of the

Senate Comm. on the Judiciary, 94th Cong., Ist Sess. 35

(1975) [hereinafter /975 Senate Hearings) (report ot

Judicial Conference) (pretrial provisions “broadly worded

to authorize the maximum use of magistrates prior to

trial”).

Hence, the absence of any “framework for, the district

court review” of magistrate-conducted jury selection ts not

significant. Section 536(b)\(1) generally establishes two dit-

ferent schemes for district.courts to review magistrates’

rulings on pretrial matters. The standard of review and the

procedure followed depend on the nature of the pretrial

matter at issue. In the case of eight specifically listed

dispositive pretrial matters, a district judge must exercise

“de novo determination.” In all other cases, a district

judge “may reconsider any pretrial matter * * * where i

has been shown that the magistrate’s order is clearly er-

roneous or contrary to law” (28 U.S.C. 636(bM IMA) &

(C)).

In this case, of course, the district court exercised de

novo review of the magistrate’s jury selection decisions.

Contrary to petitioners’ assertions (Br. 17 & 1.10),

however, the court's use of de novo review did not violate

the Act. The Act provides only for a minimum standard ot

review; it does not prohibit a district court from exercising

more extensive supervision of the magistrate’s work.'° In-

deed, in light of the constitutional claims raised in this

case, the district judge's decision to exercise de novo

review was prudent.

'® Section 636(b)4) also specifically authorizes district courts to

“establish rules pursuant to which the magistrates shall discharge thetr

duties,” which can include adjustments in the standard of review tor

particular functions

2. Nor is there any merit to petitioners’ contention (Br.

19-22) that the legislative history shows that Congress in-

tended to restrict those “additional duties” that are

delegable under Section 636(b)(3) to “routine nonjudicial

burdens” and “nonadjudicative tasks.” Congress included

the “additional duties” language in the original version of

the statute, the Federal Magistrates Act of 1968, Pub. L.

No. 90-578, § 101, 82 Stat. 1107, 1113 (1968).'' Sponsors

of the legislation and witnesses who appeared betore

House and Senate Committees repeatedly declared that

the “additional duties” provision should provide a broad

grant of authority to district courts to delegate tasks.'’

‘' As originally enacted, the Magistrates Act enumerated three

duties that district courts could assign to magistrates: serving as a

special master, assisting a district court in pretrial matters in civil and

criminal actions; and preliminarily reviewing applications for post

trial rehef in criminal cases. The Act expressly stated, however, that

magistrates were not restricted to those functions. See Pub L. No

90-578, § LOL, 82 Stat. 1107, 1113 (1968)

’ For instance, Senator Tydings, the author of the Act and its prin

cipal Senate sponsor, told the House subcommittee that was consider-

ing the legislation that “[wje wanted to make i clear that magistrates

are available to the courts to serve im any Capacity not in conflict with

the Constitution or the laws of the United States, as an officer of the

district court.” Federal Magistrates Act: Hearings on S$. 945, etc,

Before Subcomm. No. 4 of the House Comm. on the Judiciary, 9h

Cong., 2d Sess. 87 (1968) [herematter /968 House Hearings| (em

phasis added). See Federal Magistrates Act: Hearings on §. 3475 and

S. 945 Before the Subcomm. on Improvements in Judwial Machiners

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

Cong., Ist Sess. 14 (1966-1967) [heremafter /966-/967 Senate Hear:

ings} (remarks of Sen. Tydings) (“[I}t ts appropriate to allow the

district court to make whatever use of [the magistrates'] services as it

sees tut, in addition to the functions that the statute assigns them.”);

ud at 196 (testimony of Hon. Talbot Smith) ("[1}t would be helptul to

the district pudges to have a wide leeway im thew authorization of the

use Of magistrates.”); id. at $2 (testimony of Hon. Edward S. Nor

thrup) (The Act ts “flexible enough to be capable of berg adjusted to

almost any situation that might exist.”)

Congress's purpose was to allow district judges to exper:

ment and use magistrates in imaginative and innovative

ways not yet foreseen by Congress. See S. Rep. No. 371,

91th Cong., 2d Sess. 26-27 (1968) (“If district judges are

willing to experiment with the assignment to magistrates

of other functions in aid of the business of the courts,

* * * there will be increased time available to the udges

for the careful and unhurried performance of their vita!

and traditional adjudicatory duties, and a consequent

benefit to both efficiency and the quality of justice in the

Federal courts.”).

Congress evinced no intention to limit the experimenta-

tion with the use of magistrates to “routine, nonjudicial

burdens.” That had been the restricted scope of tasks

assigned to the United States commissioners under the

pre-1968 system that Congress sought to abolish (see 5.

Rep. No. 371, supra, at 10-11). While those same respon-

sibilities remained assignable to magistrates pursuant to

Section 636(a)(1), 4 primary purpose of the 1968 law was

tO create new “judicial responsibilities” for magistrates

and thereby attract “high-caliber talent” to the position.

See 114 Cong. Rec. 27,341 (1968) (remarks of Rep. Pott);

id. at 29,407 (remarks of Sen. Tydings) (“By raising the

standards of the lower judicial office by making the posi-

tion more attractive to highly qualified individuals, and by

increasing the scope of the responsibilities that can be

discharged by that office, the bill establishes a system

capable of increasing the overall efficiency of the Federal

judiciary by relieving tbe district courts of some of their

minor burdens * * *."); see also H.R. Rep. No. 1629,

supra, at 10 (“the jurrsdiction exercised by the magistrate

is the jurisdiction of the court itself); S. Rep. No. 371,

supra, at 27 (“magistrate * * * is in fact exercising the

jurisdiction and powers of the district court-as an officer

of that court”); 1966-1967 Senate Hearings 27 (remarks ot

Sen. Tydings); 1/968 House Hearings 81 (testimony of Sen.

Tydings); id. at 128 (testimony of Asst. Dep. Attorney

General William T. Finley).'’

The legislative history of the 1976 amendment of the

Magistrates Act is to the same effect. The purpose of that

legislation was to amend Section 636(b) “in order to clarify

and turther define the additional duties which may be

assigned to a United States Magistrate in the discretion of

a judge of the district court” (H.R. Rep. No. 1609, 94th

Cong., 2d Sess. 2 (1976)).'* Both the House and Senate

Reports stressed, in particular, that the purpose of subsec-

tion (b)3) was to “enable[] the district courts to continue

innovative experimentations in the use of this judicial of-

licer” (H.R. Rep. No. 1609, supra, at 12; S. Rep. No. 625,

94th Cong. 2d Sess. 10 (1976)). For that reason, Congress

placed the “additional duties” provision “in an entirely

separate subsection [to] emphasize{] that im is not

restricted im any way by any other specific grant of

authority to magistrates” (H.R. Rep. No. 1609, supra, at

12; S. Rep. No. 625, supra, at 10). Congress also criticized

some district courts for not having made extensive use of

magistrates since the passage of the Magistrates Act in

‘* Petmtioners’ reliance on Rep. Poff's statement im 1968 that the

“addiusonal duties” provision “was not im any way imtended as the

predicate for expanding the jurisdiction of the magistrate,” is mis.

placed (Pet. Br. 19, quoting 114 Cong Rec 28, 360-28, 361 (1968))

Rep. Pott was referring only to the power of a magistrate “to decide a

case Outside of the minor offense jurisdiction created by this bill” Ud

at 28,360 (emphasis added)). But in any event, « is Clear that the 1976

amendments were intended to avoid just the type of narrow construc

lon petitioners propound

* Congress amended the Act im 1976 partly in response to this

( ourt’s decsion in Wingo v. Wedding, 418 US. 461 (1974) im which

the Court held that the “additional duties” provision in effect at that

ume did not eufforize a district pudge to assign Magistrates fespon

viuiity for holding evidentiary hearings on habeas corpus petitions

( ongress intended to overrule that ruling through the 1976 amend

ments See H.R. Rep No. 1609, supra, a 6,8 Rep No 625, supra

at 3.4, Unued States ». Raddatz, 447 US at 674

20 os

1968 (see H.R. Rep. No. 1609, supra, at 4; S. Rep. No.

625, supra, at 3, 1975 Senate Hearings 33 (report of —

Judicial Conterence)).

The legislative reports, hearings, and debates preceding |

ihe 1976 amendments, like those held prior to the passage

of the Magistrates Act in 1968, refute petitioners’ conten-

tion (Br. 19) that Congress intended to assign magistrates

only “routine, nonjudicial burdens” and “nonadjudicative

tasks.” They show that Congress expected magistrates,

under the supervision of district judges, to undertake “ad-

judicatory function[s]” and “very important

duties.” See United States v. Raddatz, 447 US. at 681 0.8

(citing S. Rep. No. 625, supra, at 6, and H

1609, .upra, at 8) (“permitting the exercise « -

judicatory function by a magistrate”); 1975 Senate Hear-

ings | (remarks of Sen. Burdick) (“[T)he declared objec-

tive of the Congress when it passed the Magistrates Act of

1967, was to create in the magistrate a judicial officer who

could perform various judicial duties * * *."); id. at §

(testimony of Hon. Charles M. Metzner) (“Under authori-

ty of section 636(b), magistrates are presently performing

very important judicial duties for the district courts.”).

Petitioners make much (Br. 22-25) of their claim that

Congress tailed in 1976 “to override the existing practice

that district judges always presided at jury selection.” Ab-

sent affirmative evidence of an intent to alter the status

quo, petitioners argue, the statute must be construed not

lO permit magistrates to conduct jury selection.

That argument rests on a false premise. When Congress

amended the Magistrates Act in 1976, magistrate-

conducted voi dire was already an accepted feature of

practice under the Act; indeed, i was the very type of ex-

perimental and imnovative use of that the

framers of the Act sought to encourage.

The tirst year of full nationwide implementation of the

magistrates system, 1972, “was one of transition in which

judges experimented with the use of magistrates.” See Ad-

“*

ministrative Office of the United States Courts, Ann. Rep.

250 (1972). That year the Judicial Conference's Committee

on the Administration of the Federal Magistrate System

authorized a subcommittee to study the conduct of voir

dire by magistrates. The subcommittee, which issued its

report in July 1973, found that 9 district courts out of the

87 that responded had, in varying degrees, already author-

ized magistrates to conduct voir dire.'* See Judicial Con-

ference, Report of the Subcommittee Assigned to Study

the Conduct of Voir Dire by Federal Magistrates 2-4

(1973) [hereinafter Voir Dire Report).'* Today, 51 dis-

——

** At least two of the four districts that did not respond, the Eastern

and Middle Districts of Louisiana, did have local rules at the time per

milting 4 Magistrate to “conduct vow dire examination and impanel

trial juries” (See Magistrate System: Hearing Before the Subcomm. on

Improvements in Judicial Machinery of the Senate Comm. on the

Judiciary, 924 Cong., 2d Sess. 81 (1972) (copy of local court rules tor

Eastern District of Louisiana appended to prepared testimony ot

Harry Lee, Chairman of Legislative Comm. of Federal Magistrates),

Local Rules for the Middle District of Louisiana, Rule 26(¢)5)Q) (et

fective April 16, 1972)

'* A copy of the report has been lodged with the Court. The report's

survey found (pages 3-4) that the districts allowed magistrate

conducted voir dire in differing circumstances; Central Calitornia,

Oregon, and Western Michigan (only in emergency circumstances)

allowed magistrate-conducted voir dire in both civil and criminal

cases, the District of Columbia and Northern lowa similarly author

ized magistrates to conduct voir dire in civil and criminal cases, but

only wuh the written consent of the parties; Western Kentucky and

Eastern Texas permitted magistrate-conducted vor dire only in civil

cases, Atizona allowed the practice only in civil cases with the parties’

consent, but then contemplated that a similar rule would be adopted

tor criminal cases; and in Western Pennsylvania a clerk conducted

vow dire im civil cases and one judge permitted the magistrate to con

duct voir dire in criminal cases so long as the judge ruled on all legal

issues. While the subcommittee questioned the practical value of

magistrate-conducted voir dire, u explicitly did “not recommend that

these districts which have adopted rules or tollowed the practice ot

having Magistrates conduct vou dire examination of jurors repeal the

tricts have local court rules that expressly provide

magistrates with unqualified authority to conduct voir dire

in civil and criminal cases;'’ § districts provide such au-

rules or abandon the practice” (Voir Dire Report 9). The subcommut-

tee did suggest, however, that those districts just beginning to expert

ment with magistrate-conducted voir dire limit the practice to civil

cases with the consent of the parties (/did.). The subcommittee further

recommended that there be “some provision for the district judge to

review the rulings of the magistrate which are objected to * * *

[e}specially * * * if the rule or practice is to be employed in criminal

cases” Ubid.). The Judicial Conference's Committee on the Operation

of the Jury System accepted the Report in September 1973; the

minutes of the review of the subcomagittee’s report by the Judicial

Conference's Committee on the Administration of the Federal Mag-

istrates Act “expressed no objection” to magistrate-conducted voir

dire in civil cases with the parties’ consent and made no comment on

the practice in other circumstances, including criminal cases. None ot

these documents (copies of which have been lodged with the Court)

questions the legality of magistrate-conducted voir dire under the Act

Significantly, however, immediately following passage of the 1976

legislation, the Judicial Conference’s Magistrates Committee

distributed a memorandum that provided, without limitation, that

magistrates could conduct voir dire (see pages 25-26 & note 22, infra)

'’ See N_D. Ala. Mag. R. 4(f); S.D. Ala. R. 26(1)1)(6); C.D. Cal

Mag. R. 1.76; E.D. Cal. R. 3032); N.D. Cal. R. 405(g); S.D. Cal. R.

$01-8¢f), D. Col. R. 3032); D. Del. Mag. R. 106); D. DC. R

SOl(bM6); M_D. Fla. R. 6.01(c20); N_D. Fla. R. 240/921); S.D

Fla. Mag. R. 106); S.D. Ga. R. 21.5; D. Haw. R. 401-8(f); D. Idaho

R. 4-101 46); C.D. UL R. Maid), S.D. TH. R. 2906); N.D. Ind. R

M1-10:09); S.D. Ind. R. M-13; N.D. lowa R. 314)(4); 8.D. lowa R

3104); D. Kan. Ro 60106); E.D. La. R. 20.7(f; M.D. La. R

oe MiSs); WD. La R. 28(an9Ke); ED. Mich. R. C-iG 6), W.D

Mich. Mag. R. I(hy(S); D. Minn. R. 16(E)5); W.D. Mo. R. 22(K)(6);

D. Neb. R. 444116); D. Nev. R. $00-9(f); D.N.H. Mag. R. D(3); D

NJ. R. 40(/A05); E.DN-C. R. 62.09(fF); M.DLN.C. R. 401(b)(4), D

N_D. R. 28(c4); N.D. Ohio R. 19.10(Q2); $.D. Ohio (W. Div'n) R

1(1M6); E.D. Pa. R. 7006); M.D. Pa. R. 901.9(a)(7); W.D. Pa. Mag

R. 6(e); D. PLR. R. $06.6; D. RE. R. 32(e 5); E.D. Tenn. R. 21.2(d);

\M1.D. Tenn. R. 601(a2); W.D. Tenn. R. 1706); D. Vt. Mag. R

thority with some limitations;'* and 18 districts, including

the district involved in this case (the Eastern District of

New York), do not specifically list voir dire as a duty tor

magistrates, but instead generally provide in the local rules

that magistrates may exercise all powers and perform all

duties conferred on them by Section 636.'*

When Congress amended the Magistrates Act in 1976, it

was aware that magistrates were conducting jury selection.

On at least seven different occasions between the passage

of the Magistrates Act in 1968 and its amendment in 1976,

including during the hearings that led directly to the 1976

legislation, Congress was notified that magistrates were

conducting jury selection, including voir dire.*’ Congress

(AMIN Madiv): WD. Wash. Mag. R. 9d); N.D. W.Va. R. 4.0106),

S.D. W.Va. Mag. R. 10:6); E.D. Wis. R. 13.06(d).

'*D. Alaska R. 32) (consent of parties); D. Ariz. R. 18(d)6)

(same); N.D. Okla. R. 32(B)(12) (civil cases); WD. Okla. R. 39(B) 12)

(same); E.D. Wash. 8(d) (same).

'* See M.D. Ala. R. 32(c); D. Conn. Mag. R. 1; N.D. IT. R.

1.70(A); ED. Ky. R. 18(a); WOD. Ky. R 18(a); D. Me. R. 8c), ED.

Mo. R. 21; D. Mont. R. 400-1; D. N.M. R. 27(a), E.D.N_Y. Mag. R.

1; S.D.N.Y. Mag. R. 1; S.D. Ohio R. 2.4.1 (except Western Div'n);

FD. Okla. R. 32; D. Or. R. 135-1(b); D. S.C. RK. 19.01; B.D. Tex. R.

1S; S.Do Tex. R. 1S(A); B.D. Va. R. 29%N).

Belloni); id. at 20 (testimony of Morey L. Sear, Chairman of the Leg.

Comm. Nat'l Council of U.S. Magistrates) 20 (indicating preference

for amendment of the law or further legislative history to “make clear

(he authority of magistrates to select juries * * *"); Comptroller

General, Report to Congress, The U.S. Magistrates: How Their Serv-

ices Have Assisted Administration of Several District Courts; More

improvements Needed, reprinted in Improvement of Judicial

Machinery: Hearings Before Subcomm. on Courts, Civil Liberties,

und the Administration of Justice of the House Comm. on the

Judiciary, 94th Cong., 2d Sess. 391 (1975) (duties Of magistrate in

Oregon district court include “presiding over the selection of juries in

expressed no objection on any of these occasions. Instead,

on one occasion Congress appears to have expressed its

general support for the practice.

The expression of congressional support occurred

following the testimony of Chief Judge Robert C. Belloni

of the District of Oregon in 1975 before the Senate sub-

committee responsible for the magistrates bill that passed

in 1976. Judge Belloni told the subcommittee that

magistrates had increased the efficiency of his district by,

among other things, “presid{ing] over the voir dire and

jury selection of a trial to begin momentarily before a

judge who is putting the finishing touches on his current

case” (1975 Senate Hearings 39). The House and Senate

Reports both selected Judge Belloni’s testimony for special

praise in their discussion of the scope of a magistrate’s in-

tended authority under the Act; they referred to his

testimony and stated that “[a] similar scope of additional

both civil and criminal cases”); The Omnibus Judgeship Bill: Hearing

Before the Subcomm. on Improvements in Judicial Machinery of the

Senate Comm. on the Judiciary, 93d Cong., Ist Sess. 413 (1973)

(testimony of Judge Joe J. Fisher) (“I use [the magistrate] to select

juries, which | think is a very good use for a magistrate. You can get

consent from the attorneys to use them in this way, and it 1s a saving

of the court's time.”); /d. at $18 (testimony of Chief Judge Robert C.

Belloni) (magistrate “presides at jury selections”); Magistrate System:

Hearing Before the Subcomm. on Improvements in Judicial

Machinery of the Senate Comm. on the Judiciary, 92d Cong., 2d Sess

81 (1972) (copy of local court rules for Eastern District of Louisiana

appended to prepared testimony of Harry Lee, Chairman of Leg

Comm. of Federal Magistrates) (“The United States Magistrates * * *

shall perform the following additional duties as and when assigned to

them by any Judge in this District: * * * * * Conduct voir dire ex.

aminatior and impanel trial juries.”); Administrative Offic: of the

United States Courts, Ann. Rep. 250 (1972) (“Some of the other duties

being performed by magistrates in various district courts include the

following: * * * * * Presiding over the selection of juries in civil cases,

including vow dire examination.”).

duties is intended for magistrates under the provisions of

{the bill]” (S. Rep. No. 625, supra, at 7; H.R. Rep. No.

1609, supra, at 9).?!

C. Petitioners’ narrow interpretation of the

Magistrates Act is also suspect because it is contrary to the

contemporaneous views expressed by the Judicial Con-

ference’s Committee on the Administration of the Federal

Magistrate System and the Administrative Office of the

United States Courts. Only two weeks after the passage of

the 1976 amendments, the Judicial Conference’s

Magistrates Committee distributed to all federal judges

and magistrates a “Jurisdictional Checklist” listing those

“duties which appear to be appropriate for delegation to

magistrates under the new law” (page 1).?? With respect to

“miscellaneous additional duties” under Section 636(b)(3),

2! Petitioners’ attempt (Br. 24 n.15) to diminish the significance of

Judge Belloni's testimony is unsuccessful. First, the judge's discussion

is not “ambiguous” (/bid.). It includes no reference to “civil cases,” as

suggested by petitioners (/bid.). Nor does the qualification that

magistrates can act only where “lawyers stipulate” apply to his discus-

sion of voir dire. That qualification relates to a different subject —the

circumstance of a magistrate “presid{ing] Over the jury or nonjury trial

exactly as if he were a judge” (/975 Senate Hearings 39). Finally, peti-

tioners get no comfort from the fact that the favorable mention ot

Judge Belloni’s testimony occurs under the heading “pretrial matters.”

As previously explained, although there is some ambiguity concerning

whether Congress considered voir dire to be a “pretrial matter” rather

than just as an “additional dut{y],” what remains clear is that Con-

gress intended, one way or the other, to allow district judges to

delegate that task to magistrates. In any event, although the relevant

discussion occurs under the “pretrial” heading, both reports state that

“jal similar scope of additional duties is intended tor magistrates

under the provisions of [the bill]” (S. Rep. No. 625, supra, at 7 (em-

phasis added); H.R. Rep. No. 1609, supra, at 9).

22 4 copy of that memorandum, dated November 5, 1976, has been

lodged with this Court

2 26

the checklist includes “[c]onduct of voir dire and selection

of juries for district judges” in its list of duties that “to the

extent that [they] * * * are not covered by subsection

636(b)(1) * * * they may be delegated to a magistrate

under subsection 636(b)(3)” (page 12). The Administrative

Office’s Legal Manual for United States Magistrates

[hereinafter Magistrates Manual] takes the identical view

(Vol. 1, § 3.09, at page 3-15).23 The Manual does not

restrict voir dire to civil cases or to cases where the parties

have consented. The Manual also includes a set of model

local court rules that, in the list of “other duties” of a

magistrate, authorize a magistrate to “[cJonduct voir dire

and select petit juries for the court” (Magistrates Manual

3-49 to 3-50).*4 ;

The views of the Judicial Conference’s Committee on

Magistrates and of the Administrative Office are entitled

to significant weight. Pursuant to congressional design,

2) Petitioners argue that the views of the Manual should be dis-

counted in this respect because it is “difficult to reconci’e” the

Manual’s acknowledgment (at page 3-19) that magistrates cannot try

felony cases “with the manual’s approval of voir dire delegation,

unless such approval was meant to apply only to civil cases” (Pet. Br.

18 n.11). Petitioners’ mistake, which is repeated throughout their

brief, is their unstated assumption that voir dire is part of the felony

jury trial itself. As is made clear, however, by the very provisions

upon which petitioners rely, the Manual does not consider voir dire to

be part of the trial itself. Hence, the Manual is not internally inconsis-

tent.

4 To be sure, a foreword to the Manual points out that it “is de-

signed merely to be a guide and a readily available reference work”

and “is not an official directive from the Judicial Conference of the

United States or the Administrative Office or a substitute for deci-

sional law * * *” (Magistrates Manual iii). Nonetheless, the Manual ts

instructive, because it reflects the interpretation of the Act by Judicial

Branch officers intimately familiar with its origins and administra-

Hon.

the Judicial Conference and the Administrative Office

“share the common purpose of providing for the fair and

efficient fulfillment of responsibilities that are properly

the province of the Judiciary.” Mistretta v. United States,

109 S. Ct. 647, 663 (1989). They worked closely with Con-

gress in its consideration of the magistrates legislation,

both when the statute was originally enacted in 1968 and

when it has since been amended. They also have signifi-

camt official responsibilities under the Act and related

federal laws.?’ Not surprisingly, therefore, both the

Senate and House Reports ard various individual legisla-

tors relied on the Judicial Conference’s support in advo-

cating the legislation. See, e.g., H.R. Rep. No. 1609,

supra, at 13; S. Rep. No. 625, supra, at 11; 122 Cong. Rec.

35,181 (1976) (remarks of Rep. Danielson); /975 Senate

Hearings 30 (remarks of Mr. Westphal, Subcommittee

Chief Counsel); S. Rep. No. 371, supra, at 9; 114 Cong.

Rec. 27,227 (1968) (remarks of Rep. McClory); id. at

** As petitioners acknowledge (Br. 23), the Judicial Conference ini-

tially proposed the legislation that, with some modification, passed

Congress in 1968 and 1976. Representatives of the Conference also

testified at the hearings on the legislation and filed reports with the

relevant congressional committees on the bills under consideration.

See, e.g., 1975 Senate Hearings 4 (testimony of Judge Charles M.

Metzner, Chairman of Judicial Conference’s Magistrates Committee);

id. at 33-40 (report of Judicial Conference on legislation); /966-/967

Senate Hearings 241)-244 (report of Judicial Conference on legisla-

tion). Finally, the Judicial Conference and the Administrative Office,

under the Conference’s supervision, each has significant respon-

sibilities under the Act and related laws; for instance, the Judicial

(onterence must promulgate standards and procedures for the ap-

poimtment of magistrates (28 U.S.C. 631(b)(5)): the Director of the

Administrative Office must determine the number, locations, and

salaries of magistrates (28 U.S.C. 633); and the Director must prepare

a manual for the use of magistrates “set(ting} forth their powers and

duties” (28 U.S.C. 60-4(d)(4)).

27,342 (remarks of Rep. Poff). Particularly in light of

Congress’s reliance on the Conference and the Ad-

ministrative Office, this Court may appropriately give

weight to their interpretation of the statute, which is at

odds with that of petitioners. See United States v.

Peacock, 761 F.2d 1313, 1318 (9th Cir.) (Kennedy, J),

cert. denied, 474 U.S. 847 (1985); United States v. Rivera-

Sola, 713 F.2d 866, 873 (ist Cir. 1983).

ll. MAGISTRATES MAY CONDUCT VOIR DIRE WITHOUL

OFFENDING ARTICLE tl

Petitioners present the Article Ill challenge to

magistrate-conducted voir dire in its starkest form. They

do not argue that the quality of the voir dire they received

was inadequate in any way.** They do not claim that any

prospective juror was wrongly excluded or not excluded

for cause. Nor do petitioners contend that they were not

allowed full exercise of their peremptory challenges or that

the prosecutor abused his right of peremptory challenge.?’

In short, petitioners acknowledge that they were tried and

2* The transcript of the voir dire shows that the voir dire was exten-

sive and probing. No doubt for that reason, when given the oppor-

tunity by the magistrate, none of petitioners’ counsel requested any

additional questioning (see 3/9/87 Tr. 124). See Gomez C.A. Br. 37

(“Gomez was not prejudiced by any specific ruling of the magistrate

juring jury selection and made no such specific complaint to the

district judge * * *.”).

2? For the first time in this case, petitioners now intimate (Br. 3&4

n.4) that because the magistrate declined to excuse a prospective juror

tor hardship after she stated that she might need to attend a funeral of

a relative, petitioners might themselves have been compelled to exer-

cise a peremptory challenge to excuse that prospective juror. But peti-

tioners made no objection either before the magistrate or the district

court to the decision not to excuse the juror. They therefore cannot

now complain that the decision not to excuse the juror might have

prejudiced them —a claim that ts m any event far-fetched.

convicted by an impartial jury before an Article II] judge,

yet they claim that their convictions must be overturned

solely because an Article III judge did not personally con-

duct the voir dire. In petitioner’s view, Article III ts not

satisfied by the subsequent availability of de novo review

by the judge.?*

Article IIl, however, imposes no such rigid bar on the

use of magistrates. Even accepting petitioners’ premise

that Article III requires the presence of an Article IIL judge

during a federal felony jury trial (see Br. 30-34),** Article

Ill’s concerns are satisfied in a preliminary proceeding

such as voir dire by the availability of de novo review on

** Petitioners cannot, of course, claim that Article III judges must

personally preside over all aspects of jury selection. Otherwise, the

well-settled practice of using jury commissioners to aid in the selection

of prospective jurors for the array would be unconstitutional. See

Jury Selection and Service Act of 1968, 28 U.S.C. 1861 ef seg.; see

also Fay v. New York, 332 U.S. 261, 271 (1947) (overruled on other

grounds in Taylor v. Louisiana, 419 U.S. $22, $30 (1975)) ("Many of

the standards of elimination which the clerk is directed to apply in

choice of the panel are those the court would have to apply to excuse a

juror on challenge for cause.”).

2% That question is not free from doubt. It is well settled that an Ar-

ticle LIL pudge need not preside over all facets of a federal criminal pro-

ceeding, because “the Constitution does not require that all persons

charged with federal crimes be tried in Art. III courts.” See Swain +

Pressley, 490 U.S. 372, 382-383 (1977); see Palmore +. United States,

411 U.S. 389, 402 (1973) (“Very early in our history, Congress lett the

enforcement of selected federal criminal laws to state courts and to

state court judges who did not enjoy the protections prescribed tor

tederal judges in Art. 111."). From that premise, « would seem to

tollow that Article II] ts not violated when a tederal magistrate

presides over a jury trial. But see Northern Pipeline Co. ». Marathon

Pipe Line Co., 458 U.S. 50, 64 0.15 (1982) (plurality opmmon). In this

case, as in. Raddatz, however, the Court need not reach that issue,

because “Congress has not sought to make any such delegation” (447

U.S. at 681)

the part of the district judge. Virtually all of petitioners’

arguments to the contrary were previously rejected by this

Court in United States v. Raddatz, 447 U.S. 667 (1980).

A. In Raddatz, the Court considered an Article III

challenge to the authority of a magistrate to hear a motion

10 suppress evidence in a criminal case and to make pro-

posedfindings and recommendations to a judge concern-

ing the proper disposition of the motion. Section 636(b) 1)

of the Magistrates Act provides that a judge may designate

a magistrate to assist the judge in that manner as long as

the judge “make[s} a de novo determination of those por-

tions of the report or specified proposed findings or

recommendations to which objection is made.”

This Court ruled in Raddatz that the delegation of sup-

pression proceedings to a magistrate “does not violate Ar-

ticle ILL so long as the ultimate decision is made by the

district court” (447 U.S. at 683). The Court emphasized

that “the entire process takes place under the district

“court’s total control and jurisdiction” (id. at 681). “[T}he

magistrate acts subsidiary to and only in aid of the district

court” (ibid.). Justice Blackmun, concurring, emphasized

that because “the magistrate himself is subject to the Art

111 judge’s control{], * * * the only conceivable danger of

a ‘threat’ to the ‘independence’ of the magistrate comes

from within, rather than without, the judicial department”

(id. at 685). Whenever “a controversial matter might be

delegated to a magistrate who is susceptible to outside

pressures, the district judge — insulated by life tenure and

irreducible salary —is waiting in the wings, fully able to

correct the error” (id. at 686 (Blackmun, J., concurring)).

The Court’s reasoning in Raddatz applies with equal

force to the authority of a magistrate to conduct voir dire.

Here, as in Raddatz, de novo review of the ™agistrate’s

determinations is available. Hence, “the ultimate decision

is made by the district court” (447 U.S. at 683). The judge

in both instances retains “plenary discretion whether to

authorize a magistrate to [conduct voir dire] and * * * the

magistrate acts subsidiary to and only in aid of the district

court” (id. at 681). In short, as Article IIL requires, “ “the

essential attributes’ of judicial power are retained in the

Art. IIL court.” See Northern Pipeline Co. v. Marathon

Pipe Line Co., 458 U.S. 50, 81 (1982) (plurality opinion),

quoting Crqgvell v. Benson, 285 U.S. 22, 51 (1932).*"

None off the grounds asserted by petitioners for

distinguishing this case from Raddatz is persuasive. First,

petitioners argue (Br. 35) that voir dire can be dis-

tinguished from a motion to suppress evidence on the

ground that “no distinction under Artlicle] II] can be

drawn between jury selection and the evidence phase of

the trial.” In fact, an obvious distinction can be drawn:

The evidence phase occurs during the trial itself before an

impartial jury and determines the innocence or guilt of the

accused, while voir dire is not part of the presentation of

competing versions of facts that is ordinarily considered to

constitute the “trial.”

Although petitioners suggest that the impact of suppres-

sion rulings on the “evidence phase of the trial” is more

** In addition, as Judge Rubin noted, dissenting in United States +

Ford, 824 F.2d 1430, 1446-1447 (Sth Cir. 1987), cert. demed, 108 §

Crt. 741 (1988), a os for from clear that judges have historically been

physically present during voir dire: “Centuries ago, under the common

law of England, °° * court decisions indicate that Ht was not

remarkable tor challenges for cause to be tried to and decideu by

panels of other jurors rather than by the judge, and that such

challenges may have been tried outside the presence of the judge”

(Vind. (footnotes omitted). See 9 W. Holdsworth, 4 History of

Enelish Law 183 (3d ed. 1944); J. Thayer, 4 Preliminary Treatise on

Evidence at the Common Law 123-124 (1898), Moore, bow Dire Ex

amination of Jurors: 1. The English Practwe, 16 Geo. 1.35. 48,

442-443 (1928); see also Mopt vy. Utah, 110 US. $74, $77 (1884)

remote than the impact of voir dire, the converse would

seem true. The disposition of a motion to suppress evi-

dence determines what evidence can be admitted at trial.

As a practical matter, “the resolution of a suppression mo-

tion can and often does determine the outcome of the

case” (Raddatz, 447 U.S. at 677-678). Jury selection is, of

course, an important procedure but it is hard to credit

petitioners’ suggestion that the voir dire of the prospective

jurors is typically more important to the resolution of a

criminal case than a motion to suppress evidence.

Moreover, petitioners are not here contending that the

magistrate’s role led to a jury that was biased agains!

them. The most that can be said is that the magisirate’s

decisions may have produced an unbiased jury with a dit-

ferent composition from the unbiased jury that may have

been produced if the district judge had presided over the

voir dire. And the effect of being tried by one impartial

jury rather than another is inherently speculative.’'

Equally unpersuasive is petitioners’ assertion (Br. 37-38,

42-45) that Raddatz can be distinguished on the ground

that voir dire examination requires the presence of an Arti-

cle IL judge because meaningful de novo review of voir

dire proceedings is not possible. A virtually identical argu-

ment was made and rejected in Raddatz. The Court there

acknowledged the potential difficulty of de novo review of

suppression hearings, but concluded that, rather than

\ For this reason, there is no merit to petitioners’ suggestion (Br

36) that vor dire, presumably unlike suppression Motions, ts of “lun:

damental importance.” Both are important. And while your dire im

plicates the accused's right to tral by an impartial jury, 4 motion to

suppress evidence, depending on the particular constitutional right

underlying the motion, may implicate equally fundamental mghty,

such as those arising under the Fourth, Fifth, or Sixth Amendments

Hence. no valid distinction can be drawn between vor dire and sup-

pression motions based on thei relative “importance” to the ¢ -cased

restrict magistrate authority ex ante, the proper course was

10 assume that courts would be “sensitive to the problems

of making credibility determinations on the cold record”

(447 U.S. at 679).*?

The same approach should apply here. While reviewing

another's work is never the same as doing the work

oneself, it is Certainly possible to have effective review of

voir dire proceedings, just as it is to have effective review

ot suppression hearings.

To begin with, there are many Occasions on which jury

selection produces no issue needing review. Unlike sup-

pression motions, which are necessarily won by one side

and lost by the other, jury selection often results in both

sides being satisfied with the process and the result. In-

deed, this appears to be one of those cases, since the par-

ties made no objection either to the substance of the voir

dire or to the magistrate’s decision to seat or excuse par-

ticular jurors.??

'* The dissenting justices in Raddatz made the same argument peti-

toners have advanced m this case. See 447 US. at 689 (Stewart, J.

dissenting) ("It ts my view that the pudge could not make the statutor-

ly required ‘de novo determination’ of the critacally contested tactual

issucs im thes case without personally observing the demeanor of the

witnesses”), sd. at 711 (Marshall, J., dissenting) (“in cases like this

one the magistrate’s decrion ts effectively unreviewable if the district

judge does not hear the witnesses”).

'* Petitioners repeatedly make much of the fact that the trial judge

im thes case did not “order or review the vou dire transcript” (Br. 3, 9,

44, 48). Because petitioners did not object to the substance of the voor

dire, wacluding the jurors selected and excluded isee J A. 18-19), the

distract Court can hardly be faulted for faslng to order and review the

transcript. For the same reason, petitioners cannot now complain that

the scope of de novo review offered by the judge was too narrow.

\ithough the pudge spoke most directly to the possibility of de novo

review with regard to “any one juror for whom a challenge for cause

was mot sustamed by [the magistrate],” there s no mdication that, as

In addition, petitioners exaggerate the relative

significance of demeanor in vow dire by intimating that it

is almost always the crucial factor. As is well illustrated by

this case, the voir dire process in the federal system con-

ee en eee eely

when, in response to a question, expressly

acknowledge their inability to be impartial. See, e.¢.,

2/9/87 Tr. 21-22 (five prospective jurors raised their

hands to declare inability to be impartial in a narcotics

trafficking case); id. at 43 (The Court: “You feel you

would have a problem?”; Ms. Willey: “Yes."); 1d. at 55

(The Court: “Would that experience affect your ability to

be fair here?”; Mr. Lederle: “Yes.”); id. at 57-58 (The

Court: “Now, is there anything about the experiences you

have just described that would in your mind prevent you

from sitting fairly and impartially in this case?”; Ms.

Eckelberry: “Yes.”); id. at 59 (Ms. Ruditsky: “I don’t think

1 would be impartial on this.”); id. at 73 (Mr. Manigault:

“| don't think I can be fair.”); id. at 74 (The Court:

“Anything about the case that would prevent you from be-—

ing fair?”; Ms. Silverstein: “I think so * * *."); sd. at 75

(Mr. Bernardo: “I don’t think | would be real objective.”),

id. at 94 (Ms. Tavis: “I don’t think that I can be impartial

in this case.”); id. at 127 (Mr. Lutz: “I don’t feel I ‘iave a

right to this case.”); ibid. (Ms. Rozzell: “i do not feel that I

can be fair.”); ad. at 131 (Ms. Tufel: “As I sit there, I can

patos Ae im thas was excused for

ive j m case

Vawsyshrabs opcrangmosgel explicit disclosure, and that

juror was excused after petitioners’ counsel explained to

the magistrate why bias might be an issue; the government

consented to the juror’s removal from the panel (see 2/9/87

petitioners now contend (Br 3, 44, 48), the judge would have refused

to consider any other objection to the wow dire

Tr. 126). Consequently, there was nothing for the district

court to review. And even if there had been, the

magistrate’s decision to excuse one of the prospective

jurors for cause could easily have been reviewed on the

basis of the transcript.

The parties’ exercise of their peremptory challenges in

this case, as in most cases, was similarly noncontroversial.

One of the important functions of voir dire is to allow the

parties to hear the prospective jurors’ responses and to ex-

ercise peremptory challenges based on those responses. As

in the case of the disposition of the excuses for cause, the

questioning that enlightens the parties’ decisions with

regard to the exercise of their peremptory challenges can

easily be reviewed from the transcript or from the parties’

motions to have particular questions asked. None of the

parties in this case objected to any question posed by the

magistrate or requested any additional questioning. Again,

therefore there was nothing for the district court to review.

But even if such an objection had been made, the magis-

trate’s determination to ask or not to ask a particular ques-

tion of the prospective jurors could easily have been re-

viewed by the district court either in advance or after the

fact.

When the need for review of a magistrate’s conduct of

vor dire arises, a district judge possesses considerable

discretion in the way he exercises de novo review. How

that discretion is exercised depends on the nature of the

objection made.

Some review can occur prior to the voir dire itself, it

the parties submit questions that the magistrate refuses to

ask. Other forms of review can take place after the fact or

even during the course of the voir dire. In most cir-

cumstances, the judge will likely find it sufficient to ex-

amine the voir dire transcript and hear argument by

counsel. In some circumstances, however, the judge may

decide that it is necessary to question a particular prospec-

tive juror himself; this may occur following the

magistrate’s jury selection or even during the midst of jury

selection, if necessary.** And if, as petitioners posit, ex-

treme circumstances arise where the web of errors commit-

ted by the magistrate cannot be unwoven, the judge may

of course commence the jury selection anew. Cf. H.R.

Rep. No. 1609, supra, at 3 (“In some specific instances, [it]

may be necessary for the judge to modify or reject the

findings of the magistrate, to take additional evidence,

recall witnesses, or recommit the matter to the magistrate

for further proceedings.”); Raddatz, 447 U.S. at 680

(“broad discretion includes hearing the witnesses live to

resolve conflicting credibility claims”). Yet the poss«bility

that in some circumstances the judge may have to redo the

magistrate’s work in part or in whole does not mean that,

on the whole, the delegation of voir dire to magistrates will

be ineffective in conserving judicial resources. Article III

does not forbid a judge from making the judgment that

those rarely incurred costs will be more than offset by sav-

ings in the vast majority of cases such as this one.*°

B. Petitioners next contend (Br. 38-39) that mag-

istrate-conducted voir dire violates Article II] “because the

trial judge’s conduct of the subsequent trial proceedings

‘If an unanticipated controversy arises during jury selection, the

magistrate is free to consult with the judge, who may then decide to in

tervene. In this case, for example, after petitioners’ counsel objected

io the magistrate’s conducting voir dire, the magistrate asked counsel

whether “some inquiry should be posed to Judge McLaughlin now”

(J.A. 15). The magistrate then consulted with the judge and learned

that the judge’s “view of the law was the same as mine” (J.A. 16).

'’ Even Judge Oukes, dissenting from the court of appeals’ judg

ment. did not conclude that Article II] precludes magistrate-

conducted voir dire. He instead stated that because he did not believe

the practice “can save much judicial time,” it should generally be pro-

hibited “in the exercise of our supervisory power” (J.A. 48).

depends upon his personal knowledge of what occurred

during voir dire.” But there is no requirement that the

same judge both select the jury and conduct the trial, as

petitioners appear to concede (Br. 24 n.15). There is

therefore no constitutional magic in ensuring that the

judge who tries the case has “personal knowledge” of the

jury selection process. Consequently, there is no merit to

petitioners’ claim that in order to achieve that result Arti-

cle IIL must be construed to forbid magistrates from con-

ducting voir dire.

C. In challenging the use of magistrates to conduct

voir dire, petitioners understate (Br. 40-42) the adverse im-

pact of their Article III claim on the achievement of the

purposes of the Magistrates Act and wrongly ask this

Court, under the guise of constitutional review, to second-

guess the wisdom of Congress’s policy determination.

Petitioners argue, in effect, that magistrate-conducted

vor dire violates Article Ill because it is infrequently

done; according to petitioners (Br. 42), magistrates con-

ducted voir dire only 55 times during the last six months of

1988. Petitioners’ point is misleading, however, for several

reasons.

First, there is reason to believe that the last six months

do not reflect the historical, let alone possible future, use

of magistrates to conduct voir dire. Because of the uncer-

tainty about the legality of the practice following the Fifth

Circuit's 1987 decision in United States v. Ford, 824 F.2d

1430, 1434-1438 (Sth Cir. 1987), cert. denied, 108 S. Ct.

741 (1988), it seems likely that the use of magistrates to

conduct voir dire was atypically low during the six-month

survey period on which petitioners rely. The fact that more

than half the judicial districts in the nation specifically list

voir dire as among magistrates’ permissible duties suggests

that magistrate-conducted voir dire has been relatively

common in the past and will be even more common if this

Court upholds the practice.

Second, petitioners underestimate the potential signifi-

cance of their Article II] theory. If petitioners are correct

in their more sweeping view of the restrictions imposed by

Article II] on the use of magistrates —that jury selection 1s

part of the trial and an Article II] judge must preside over

all aspects of federal court trials — more than magistrate-

conducted voir dire in felony jury trials may be affected.

The authority of magistrates to conduct voir dire in misde-

meanor and civil cases and, even with the defendant's con-

sent, to try misdemeanor or civil cases may also be placed

in doubt.’* According to the Administrative Office of the

U.S. Courts, between July 1, 1987, and June 30, 1988,

magistrates tried 1348 misdemeanor and 989 civil cases,

during the second half of 1988, magistrates conducted voir

dire in 61 felony jury trials and, apart from cases they

tried, conducted voir dire in 1/8 civil cases.*’

In any event, this Court should decline petitioners’ in-

vitation to substitute its own judgment for Congress's

policy determination that magistrates are an important

and effective means of relieving the burdens of burgeoning

caseloads on federal courts. Petitioners argue (Br. 40 n.25,

42) that magistrate-conducted voir dire will not save

judges much time, but this Court is not equipped to make

that empirical determination, even if it is somehow rele-

vant to the legal issue presented here. Experience will show

whether the practice is effective, and if it is not, judges will

1037, 1045-1054 (7th Cir. 1984) (Posner, J., dissenting) (concluding

magistrate-conducted civil trials pursuant to Section 636(c) violate Ar-

ticle Il] even with the parties’ consent).

' See Letter from Gerard Jones, Program Analyst, Magistrates

Division, Administrative Office of the U.S. Courts (Mar. 30, 1989)

(copy lodged with the Court). The 61 felony voir dire proceedings

fépresents a modification of the number (55) the Administrative Ot-

fice provided in its letter to petitioners’ counsel.

no doubt abandon it. In the meantime, consistently with

Congress’s intent, judges should be allowed to continue to

experiment with assigning magistrates to various “pretrial

matters” and “additional duties,” such as voir dire, to deter-

mine which can most effectively ease the federal courts’

dockets. After all, Article III does not require that an ex-

periment be successful in order for it to be constitutional.}*

D. For the first time, petitioners make an independent

argument based on the Due Process Clause (Pet. Br.

46-49).°*? Their due process claim, however, is little more

than a reformulation of their Article III claim. The due

process right identified by petitioners is the “additional

procedural protection” of having “the independence and

impartiality of judges” who conduct voir dire and criminal

trial proceedings “enhanced by life-time tenure and an ir-

reducible salary” (Pet. Br. 46). Apart from the absence of

an Article II] judge, petitioners do not claim that they suf-

fered any other injury. Petitioners’ due process claim

therefore suffers from the same infirmities as their Article

111 claim.*°

‘* This court rejected a similar argument in Raddatz. See 447 U.S.

at 702 n.5 (Marshall, J., dissenting) (“Experience shows that motions

lo suppress evidence consume a relatively small proportion of the time

of tederal district judges.”).

’* Although petitioners referred to “due process” both in their peti-

tions and in their court of appeals briefs, they did not make a due

process argument independent of their Article Ill claim. See, e.g.,

88-5014 Pet. 1, 5; 88-5158 Pet. 7; Supp. Pet. i, 16, 18. The court of ap-

peals, accordingly, addressed only petitioners’ Article IH argument.

See J.A. 30-37.

Petitioners’ due process claim surely must fail, moreover, to the

extent that petitioners are claiming a due process right to have a judge

with lite tenure and irreducible salary conduct voir dire. If due process

required that result, most criminal jury trials in state courts would

violate due process. Ct. Raddatz, 447 U.S. at 685 n.3 (Blackmun, J.,

concurring).

This Court rejected a similar due process claim in Rad-

datz (447 U.S. at 677-681). Applying the three-factor test

described by this Court in Mathews v. Eldridge, 424 U.S.

319, 335 (1976), and now relied upon by petitioners (Br.

47), the Court concluded that any due process rights im-

plicated by a suppression hearing were adequately pro-

tected by the statutory provision of de novo review. The

same procedural safeguards apply to voir dire and there-

fore lead to the same result. en

First, the “private interests implicated” are similar in

this case and in Raddatz (447 U.S. at 677). Just as “the

process due at a suppression hearing may be less demand-

ing and elaborate than the protections accorded the defen-

dant at the trial itself” (id. at 679), the process due at voir

dire is less exacting than at trial. The proceeding is far

more informal, and the court has considerable discretion

in deciding the substance and format of the questioning.

See Ristaino v. Ross, 424 U.S. 589, 594 (1976). .

Second, “the risk of an erroneous determination” is no

greater here than it was in Raddatz. See 447 U.S. at 677.

As in Raddatz, “the district court judge alone acts as the

ultimate decisionmaker,” and “the statute grants the judge

the broad discretion to accept, reject, or modify the

magistrate’s proposed findings” (id. at 680). Depending on

the nature of the objections made to the magistrate’s voir

dire, the judge also has great discretion in the way he con-

ducts de novo review, ranging from examination of the

transcript to questioning prospective jurors himself.

Third, “the public interest and administrative burdens,

including the costs that the additional procedures would

involve” (Raddatz, 447 U.S. at 677) support the constitu-

tionality of magistrate-conducted voir dire. Underlying

the enactment and subsequent amendments of the

Magistrates Act is “Congress’ recognition that a multitude

of new statutes and regulations had created an avalanche

of additional work for the district courts which could be

performed only by multiplying the number of judges or

giving judges additional assistance.” Mathews v. Weber,

423 U.S. at 268; see Wingo v. Wedding, 418 U.S. at 463:

S. Rep. No. 625, supra, at 2-5; H.R. Rep. No. 1609,

supra, at 4-7. Congress empowered magistrates to con-

sider “pretrial matters” and undertake “additional duties”

so that district judges could spend more time on the trials

themselves.

Congress’s decision to enlist the aid of gistrates

rather than increase the number of district judges Yeflects a

considered fiscal and administrative policy decision. It

costs much more to create and annually fund a judgeship

than a magistracy. See, e.g., 1975 Senate Hearings 4

(remarks of Judge Metzner on behalf of the Judicial Con-

ference) (“It is our considered judgment that we cannot

continue to cope with this problem [of growing caseloads}

by increasing the number of district judges ard the sup-

porting staffs of law clerks, secretaries, court clerks, court

reporters and other employees, with the concomitant need

for huge additional physical space.”). Creating a

magistrate’s position is also a more flexible means of ad-

dressing the congestion problem in many instances. A

magistrate may be hired part-time and may be readily

assigned to different tasks in different courthouses and

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

Rep. No. 1609, supra, at 9, 12-13.

In light of these factors, Congress’s decision to permit

magistrates to conduct voir dire comports with due proc-

ess. As this Court explained in another context, “some

play in the joints of the jury-selection process is necessary

in order to accommodate the practical problems of

judicial administration. Congress could reasonably adopt

procedures which, while designed to assure that ‘an impar-

tial jury [is] drawn from a cross-section of the communi-

ty,” at the same time take into account practical problems

of judicial administration.” Hamiing v. United States, 418

U.S. 87, 138 (1974).

it. ANY ERROR IN THE PROCEDURE FOLLOWED IN

THIS CASE WAS HARMLESS

Petitioners objected to having the magistrate conduct

the voir dire in this case, but they did not object to, or seek

review of, anything the magistrate did in the course of the

voir dire proceedings. For that reason, even if the district

court committed statutory or constitutional error in

assigning the voir dire to the magistrate, the error was

harmless and does not entitle petitioners to a reversal of

their convictions.

As this Court has repeatedly stated, most errors that oc-

cur in the process leading to a defendant's conviction are

subject to harmless error analysis. Thus, the Court has ap-

plied harmless ¢rror analysis to a wide variety of errors,

such as errors in the grand jury process (see Bank of Nova

Scotia v. United States, 108 S. Ct. 2369 (1988)), violations

of the Confrontation Clause (see Delaware v. Van Arsdall,

475 U.S. 673 (1986)), errors in jury instructions (see Pope

v. Ilinois, 481 U.S. 497 (1987)), and violations of the right

to be present at trial (see Rushen v. Spain, 464 US. 114

(1983)). Only in a few settings has the Court applied a rule

of per se reversal upon finding that error has been commit-

ted. Those include the complete denial of counse! (see

Perry v. Leeke, 109 S. Ct. 594, 600 (1989)), racial

discrimination in the selection of grand jurors (see Vas-

quez v. Hillery, 474 U.S. 254 (1986)), and adjudication by

a biased judge (see Tumey v. Ohio, 273 U.S. $10 (1927)).

Petitioners argue (Br. 28-29, 45-46) that the error in this

case — permitting an unauthorized officer to conduct the

voir dire—is a fundamental one that cannot be harmless

under any circumstances. We disagree. In at least some

cases, of which this one is a clear example, it is possible to

say with great confidence that the assignment of a

magistrate to conduct the voir dire could not have pre-

judiced the defendants. In such cases, reversal of the

defendants’ convictions would be a miscarriage of justice.

The most significant factor bearing on the harmless er-

ror issue in this case is that petitioners voiced no com-

plaints about the way the voir dire was conducted, other

than objecting to the fact that the magistrate conducted it.

In the typical harmless error case, the appellant loses if he

fails to persuade the court that he would not have been

convicted absent the error in question. In this case, peti-

tioners not only cannot make that argument, but they can-

not even claim that the voir dire or the trial would have

been conducted any differently if the judge, rather than

the magistrate, had presided over the jury selection proc-

ess. See United States v. Rodriguez-Suarez, 856 F.2d 135,

138 (1ith Cir. 1988), cert. denied, 109 S. Ct. 875 (1989).

This case is therefore quite different from a case in which

the defendant has been denied his right to counsel, but

cannot point to any specific error at trial that prejudiced

him. As the Court has held, the right to counsel is fun-

damental, and absent the opportunity to be represented by

counsel, a reviewing court cannot have confidence that the

result is a fair one, even if no obvious errors appear on the

tace of the record. See Chapman v. California, 386 U.S.

18, 23 (1967). In this case, petitioners’ counsel represented

them throughout the voir dire and were invited to call to

the attention of the magistrate or the district judge any

‘laws in the process that they perceived. Since they failed

to note any flaws at all, the Court can have confidence

that the voir dire was properly conducted, or at least that

any error was so insignificant as to fall beneath counsel's

notice.

An additional tactor bearing on the appropriateness of

harmless error analysis in this setting is the nature of

appellate review of claims of error in the vour dire process.

While defendants have a constitutional right to an impar-

tial jury, they do not have a constitutional right to the im-

partial jury of their choice. For that reason, reviewing

courts typically focus on the defendant's “right to reject,

not to select a juror,” and the loss of a poten*ially

favorable juror is ordinarily not a ground for appeal. See

Hayes v. Missouri, 120 U.S. 68, 71 (1924); Northern Pac.

R_R. v. Herbert, 116 U.S. 642, 646 (1886); United States

v. Marchant, 25 U.S. (12 Wheat.) 480, 482 (1827); see also

Ross v. Oklahoma, 108 S. Ct. 2273, 2277 (1988) (Any

claim that the jury was not impartial * * * must focus

* * * on the jurors who ultimately sat. None of those 12

jurors, however, was challenged for cause by petitioner,

and he has never suggested that any of the 12 was impar-

ty Oe

Petitioners mistakenly assume (Br. 44) that a defendant

is entitled to relief whenever a court's action requires that

he unnecessarily exercise a peremptory challenge. At least

where the relevant sta‘ute allowing peremptory challenges

so limits that right, a defendant cannot complain even

when a court forces the defendant to exercise his last

peremptory challenge by erroneously declining to exclude

+: Of course, there are exceptions to this general principle. For in-

stance, “a sentence of death cannot be carried out if the jury that im-

posed or recommended it was chosen by excluding veniremen for

cause simply because they voiced general objections to the death

penalty (Witherspoo., v. Illinow, 91 U-S. $10, $22 (1968)), and “the

Equal Protection Clause forbids the prosecutor to challenge potential

jurors soley on account of the race or on the assumption that black

jurors as a group will be unable impartially to consider the State's case

against a black defendant” (Batson v. Kentucky, 476 U.S. 79, 89

(1985). Such issues do not, however, arise im the vast majority of

cases (including this one) and, even when they to, they are suscepuble

to meaningful de novo review by a district judgc.

s prospective juror for cause: “So long as the jury that sits

is impartial, the fact that the defendamt had to use a

peremptory challenge to achieve that result does not mean

the Sixth Amendment was violated.” Ross v. Oklahoma,

108 S. Ct. at 2278. In sum, the record in this case makes it

amply clear that, regardless of the magistrate’s authority

to conduct the voir dire, there was no error in the rulings

made in the course of the voir dire, and certainly no error

that would entitle petitioners to reversal of their convic-

tions and a new trial. Under these circumstances, it would

serve NO purpose to reverse petitioners’ convictions in the

absence of any cognizable prejudice to the defense.

CONCLE SION

The judgment of the court of appeals should be af-

tirmed.

Respectfully submitted.

Witiamw Cc. Bryson

Acting Solicitor General

Epw arp $.G. Dennis. Ie

Assisiant Attorney General

Ric HARD J. LAZaRis

Assistant to the Solicitor General

J. Dow as Wieson

Altorne,s

\Ilvakch 1989

APPENDIX _

1. Article I of the United States Constitution provides

in relevant part:

Section |. The judicial Power of the United States,

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

terior Courts as the Congress may from time to time

ordain and establish. The Judges, both of the

supreme and interior Courts, shall hold their Offices

during good Behavior, and shall, at stated Times,

receive for their Services, a Compensation, which

shall not be diminished during their Continuance in

Office.

Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Con-

stitution, the Laws of the United States, and Treaties

made, or which shall be made, under their Authority

The Trial of all Crimes, except in Cases of Impeach-

mem, shall be by Jury * * *.

2. Section 636 of the Federal Magistrates Act provides in

relevant part:

(a) Each United States magistrate serving under this

chapter shall have within the territorial jurisdiction

prescribed by his appoimtment —

(1) all powers and duties conferred or imposed

upon United States commissioners by law or by

the Rules of Criminal Procedure for the United

States District Courts;

(2) the power to administer oaths and affirma-

tions, impose conditions of release under section

3146 of tithe 18, and take acknowledgements, af-

lidavits, and depositions; and

(la)

——

(3) «the power to conduct trials under section

3401, tithe 18, United States Code, in conformity

with and subject to the limitations of that sec-

tion.

(bx) =Notwithstanding any provision of law to the

contrary —

(A) a judge may designate a magistrate to hear

and determine any pretrial matter pending before

the court, except a motion for injunctive relict,

for judgment on the pleadings, for summary

judgment, to dismiss or quash an indictment or

information made by the defendant, to suppress

evidence in a criminal case, to dismiss or to per-

mit maintenance of a class action, to dismiss for

failure to state a claim upon which relief can be

granted, and to involuntarily dismiss an action.

A judge of the court may reconsider any pretrial

matter under this subparagraph (A) where it has

been shown that the magistrate’s order ts clearly

erroneous Or contrary to law.

(B) a judge may also designate a magistrate to

conduct hearings, including evidentiary hearings,

and to submit to a judge of the court proposed

findings of fact and recommendations for the

disposition, by a judge of the court, of any mo-

tion excepted in subparagrah (A), of applications

for posttrial relief made by individuals convicted

of criminal offenses and of prisoner petitions

challenging conditions of confinement.

ings and recommendations under subparagraph

Sp See Sie CUE 8S 6 Cagy SS Cerwkh 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 por-

tions 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

recommit the matter to the magistrate with in-

structions.

(2) A judge may designate a magistrate to serve as a

special master pursuant to the applicable provisions

of this title and the Federal Rules of Civil Procedure

tor the United States district courts. A judge may

designate a magistrate to serve as a special master in

any civil case, upon consent of the parties, without

regard to the provisions of rule 53(b) of the Federal

Rules of Civil Procedure for the United States district

courts.

(3) A magistrate may be assigned such additional

duties aS are not inconsistent with the Constitution

and laws of the United States.

(4) Each district court shall establish rules pursuant

to which the magistrates shall discharge their duties.

contrary —

(1) Upon the consent of the parties, a full-time

United States magistrate or a part-time United

States magistrate who serves as a full-time

- a

judicial officer may conduct any or all pro-

ceedings in a jury or nonjury civil matter and

order the entry of judgment in the case, when

specially designated to exercise such jurisdiction

by the district court or courts he serves. Upon the

consent of the parties, pursuant to their specific

written request, any other part-time magistrate

may exercise such jurisdiction, if such magistrate

meets the bar membership requirements set forth

in section 631(b)(1) and the chief judge of the

district court certifies that a full-time magistrate

is not reasonably available in accordance with

guidelines established by the judicial council for

the circuit. When there is more than one judge of

a district court, designation under this paragraph

shall be by the concurrence of a majority of all

the judges of such district court, and when there

is no such concurrence, then by the chief judge.

*_* *

US GOVERNMENT PRINTING OFFICE 1969 241 69900176

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.