Petition for Writ of Certiorari — Lois E. Hilton Ford v. United States

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87-5570

ota Supreme Court. US

UNITED STATES SUPREME” COUP PILED

OCTOBER TERM, 1987

JOSEP F SPANIDL. UR.

CLE mn

LOIS E. HILTON FORD,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Cerrtiorari To

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

DANNY D. BURNS

111 North Houston, lst Floor

Fort Worth, Texas 7€1@2-2¢¢7

. (817) 87@-1544

State Bar No. @34438¢e¢

QUESTIONS PRESENTED

I. DOES THE RULING OF THE COURT OF APPEALS THAT THE

DENIAL OF AN ARTICLE III JUDGE DURING JURY SELECTION IS

HARMLESS ERROR DENY THE IMPORTANCE OF THE TRIAL JUDGE IN

JURY SELECTION AND IGNORE ESTABLISHED PRECEDENT OF THIS

HONORABLE COURT DEALING WITH THE IMPORTANCE OF THE TRIAL

JUDGE AND JURY SELECTION IN A CRIMINAL TRIAL?

II. MAY THE GOVERNMENT CONVICT A PERSON OF COVERING UP

A MATERIAL FACT TO THE GENERAL SERVICES ADMINISTRATION BY RE-

PRESENTING THAT A CHECK WAS COVERED BY SUFFICIENT FUNDS WHEN

THE PROOF SHOWS THAT PETITIONER MERELY PRESENTED A CHECK

WHICH AT TKE TIME WAS NOT COVERED BY SUFFICIENT FUNDS BUT

WITH NO OTHER ASSERTIONS OF FACT BY THE PETITIONER?

III. WHEN THE GOVERNMENT ALLEGES A NUMBER OF MOTOR

VECHICLES BEING INVOLVED IN THE CONSPIRACY, MUST THE GOVERN-

MENT PROVE THE CHIEF IDENTIFYING CHARACTERISTIC AS ALLEGED;

SPECIFICALLY, THE UNIQUE VEHICLE IDENTIFICATION NUMBER?

TABLE OF CONTENTS

QUESTIONS PRESENTED. «cece ceeereeereeeeeeseseseveseeeesi ee Ad

TABLE OF CONTENTS. ceeeeeseeeeeesesereresesesesessssesessevslhil

INDEX OF AUTHORITIES. «cee eeeeecceeerneeeeeeseesevsseeseee AV

OPINIONS BELOW. ccc cece cere ee eeeeeeeseeesewesssessssseveee |

JURISDICTION. ccc ceceeveeseeerereeseresessssesssssssssesveee |

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...++e++++ 2

STATEMENT OF THE CASE... ccccccccccccssscccsesessesesessess§ §

A. Course of Proceedings and Disposition Below...... 5

B. Statement Of Fact S..scsesseesseesesvessessesesses 6

REASONS FOR GRANTING THE WRIT. ccceeeccceeeeeeseeeeseceeese 7

I. THERE ARE SPECIAL AND IMPORTANT REASONS FOP

GRANTING THE WRIT cccccccceceeeseseeeeeeeseesecece 7

II. THE RULING OF THE COURT OF APPEALS THAT THE

DENIAL OF AN ARTICLE III JUDGE DURING JUPY

SELECTION IS HARMLESS ERROR DENY THE IMPOPTANCE

OF THE TRIAL JUDGE IN JURY SELECTION AND IGNORE

ESTABLISHED PRECEDENT OF THIS HONORABLE COUFT

DEALING WITH THE IMPORTANCE OF THE TRKIAL JUDGE

AND JURY S®LECTION IN A CRIMINAL TRIAL..seeeeeeee &

III. THE HOLDING OF THE COURT OF APPEALS THAT GIVING

OF AN INSUFFICIENT CHECK MAY BE A COVERING UP

OF A MATERIAL, FACT IS IN CONFLICT WITH THIS

COURT'S RULING IN WILLIAMS V. UNITED STATES, 456

U.S. ZTIDe cece ce eeee eee Sees eeeeeseeeseseseeeeesecs lé

IV. THE HOLDING OF THE COURT OF APPEALS THAT THE

GOVERNMENT NEED NOT PROVE A UNIQUELY IDENTIFYING

DESCRIPTION OF PROPERTY IS ERRONEOUS AND IN CON-

FLICT WITH THIS COURT'S RULING IN UNITED STATES

V. HARDYMAN, 18 L-EG. Ll3eeeeeeeecevceceevvveveee Ll

CONCLUSION. cccccccceeceeeeeeeeeeeeeseeseeeseseeesessseeses 12

iii

INDEX OF AUTHORITIES

PAGE

CASES:

Capital Traction Company v. Hof, 174 U.S.1, 19 S.Ct. 58@ 8

Dunn v. United States, 442 U.S. 100. .ceeeeseeseves ll

Gray v. Mississippi, 55 U.S.L.W. 4638.....eeeeeee 7,8

Montgomery v. United States, 162 U.S. 41@...seeee ll

Reynolds v. United States, 98 U.S. 145... eeeeees 7,8

United States v. Ford, B1li F.2d 26B..ceeessvececes 1,6

United States v. Ford, 107 S.Ct 964.eeeeeessevees 6

United States v. Ford, F.2d eeeererens 6

United States v. Hardyman, 10 L.Ed. l13.seeeeeeeee iii ,jl

United States v. Morris, 623 F.2d 145.ceseeeeesees ll

Wainwright v. Witt, 469 U.S. 4l2...ccecesesesvvces 7,8

Williams v. United States, 458 U.S. 279.eseeeseees iii, 10

STATUTES:

LOCAL RULES OF PRACTICE

RULE] Ledeccccccceveceesseveseseesesessesseces 4

RUlL] Qevoceccceceeeesseresssessssssesesseeses 4

18 U.S.C.

SOC. Calo cece ccccsvessesesessessessseessesece 2

SOC. CEQ. cers ecesesessevessssesesssssssesecs 2

SOC. LODlecesevcccccsccccsscssesessesessesess 3, 7, 10

SOC. lLDlheccccvccccscsccvscscsesssesscsvevseseses 7, 10

SOC. B4DlLeccvcccvccscsesvescsscsessecsvsceesece 3

28 U.S.C.

SEC. CIGBenseeseceeceesesessvsssssessessesess 4

RULES OF THE SUPREME COURT

RULE G6. leeececccvvessesevessesssessssssssecs 2

UNITED STATES CONSTITUTION

fF AMONAMEN..cccccccccccsccccvcsccesevese 5

Sixth Amendment..ccecesecescsvcscsesssseseses 5

NO.

IN THE

UNITED STATES SUPREME COUPT

OCTOBER TERM, 1987

LOIS E. HILTON FORD,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

Petition For Writ Of Certiorari To

The United States Court of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CEFTIORARI

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:

The Petitioner respectfully prays that a writ of certiorari

issue to review the judgment of the United States Court of Appeals

for the Fifth Circuit, entered in this case on Aucust 11, 1987,

and no rehearing was filed.

OPINIONS BELOW

The first opinion of the Court of Appeals is published at 797

F.2€ 1329 (5th Cir., 1986, rehearing denied September 18, 1986),

Cert. denied 1@7 S.Ct. 964 (1987). The Court of Appeals granted

rehearing Fn Banc on their own motion after the denial of cer-

tiorari by this Honorable Court. United States v. Ford, 611 F.24

266 (5th Cir., 1987). After reconsideration, the Court of Appeals

reissued their ruling finding that their was no congressional

intent to allow jury selection ty United States Magistrates ir

the opinion issved August 11, 1987 (appendices A, B, and C). The

judgement and commitment order of the trial court pursuant to the

jury verdict appears as appendices D and E.

JURISDICTION

The first judgment of the United States Court of Appeals for

the Fifth Circuit was entered August 22, 1986. The Court of

Appeals denied the timely filed petition for rehearing on Septem-

ber 18, 1986. A petition for writ of certiorari was timely filed

with this honorable Court on November 17, 1986 in number 86-5865.

The writ and motion to defer consideration due to pending action

by the Court of Appeals were both denied on January 27, 1987. On

February 1@, 1987 the Court of Appeals issued an order vacating

the order overruling the motion for rehearing and grar*ing rehear-

ing En Banc. The Court of Appeals sitting En Banc issued a new

opinion determining that it was improper for a magistrate to

select a jury in a felony criminal trial. The En Banc opinion was

issued on August 11, 1987. This Petition for writ of certiroari

is filed within sixty (60) days after the final judgment in this

case. This Court's jurisdiction is invoked under 28 U.S.C. 1254

(1) Petitioner is entitled to proceed in forma pauperis pursuant

to 18 U.S.C. 3006A (da) (b) and Rule 46.1 of the Rules of the Su-

preme Court of the United States because counsel was appointed

pursuant to the Criminal Justice Act to perfect the appeals for

Petitioner.

STATUTORY PROVISIONS INVOLVED

Title 18, United States Code, Section 641, in pertinent part

as follows:

Whoever embezzles, steals, purloins, or knowingly converts

to his use or the use of another, or without authority,

sells, conoveys or disposes of any record, voucher, money,

or thing of value of the United States or of any depart-

ment or agency thereof, or any property made or being

made under contract for the United States or any depart-

ment or agency thereof; or

Whoever receives, conceals, or retains the same with

intent to convert it to his use or gain, knowing it

to have been embezzled, stolen, purloined or converted-

Shall be fined not more than $18,000.@@ or imprisoned

not more than ten years, or both; but if the value of

such property does not exceed the sum of $10@, he shall

be fined not more than $1,00@ or imprisoned not more than

one year, or both.

The word “value” means face, par, Or market value, or

cost price, either wholesale or retail, whichever is

greater.

Title 18, United States Code, Section 642, in pertinent part

follows:

Whoever, without authority from the United States,

secretes within, or embezzles, or takes and carries

away from any building, room, office apartment,

vault, safe, or other place where the same is kept,

used, employed, placed, lodged, or deposited by

authority of the United States, any tool, implement,

or thing used or fitted to be used in stamping or

printing, or in making some other tool or implement

used or fitted to be used in stamping or printing any

kind or description of bond, bill, note, certificate,

coupon, postage stamp, revenue stamp, fractional

currrency note, or other paper, instrument, obligation,

device, or document, authorized by law to be printed,

stamped, sealed, prepared, issued, uttered, or put in

circulation on behalf of the United States; or

Whoever, without such authority, so secretes, em-

bezzles, or takes and carries away any paper, parch-

ment, or other material prepared and intended to be

used in the making of any such papers, instruments,

obligations, devices, or documents; or

Whoever, without such authority, so secretes, em-

bezzles, or takes and carries away any paper, parch-

ment, Or other material printed or stamped, in whole

or part, and intended to be prepared, issued, or put

in circulation on behalf of the United States as one

of such papers, instruments, or obligations, or printed

or stamped, in whole or part, in the similitude of any

such paper, instrument, or obligation, whether intended

to issue or put the same in circulation or not-

Shall be fined not more than $5,000 or imprisoned not

more than ten years or both.

Title 18, United States Code, Section 10@1, in pertinent part

as follows:

Whoever, in any matter within the jurisdiction of any

department or agency of the United States knowingly

and willfully falsifies, conceals or covers up by any

trick, scheme, or device a material fact, or makes any

false, fictitious or fraudulent statements or representa-

tions, or makes or uses any false writing or document

knowing the same to contain any false, fictitious or

fraudulent statement or entry, shall be fined not more

than $10,008 or imprisoned not more than five years, or

both.

Title 18, United States Code, Section 34@1, in pertinent part

fo. lows:

(a) When specially designated to exercise such juris-

diction by the district court or courts he serves, and

under such conditions as may be imposed by the terms cf

the special designation, any United States magistrate

shall have jurisdiction to try persons accused of, and

sentence persons convicted of, minor offenses committed

within that judicial district.

(b>) Any person charged with a minor offense may elect,

however, to be tried before a judge of the district

court for the district in which the offense was committed.

The magistrate shall carefullly explain to the defendant

that he has a right to trial by jury before such judge and

shall not proceed to try the case unless the defendant,

after such explanation, signs a written consent to be

tried before the magistrate that specifically waives both

a trial before a judge of the district court and any right

to trial by jury that he may have.

this section, and before whom a person is convicted or

pleads either guilty or nolo contendere, may, with the

approval of a judge of the district court, direct the

probation service of the court to conduct a presentence

investigation on that person and render a report to the

the magistrate prior to the imposition of sentence.

(ad) The probation laws shall be applicable to persons

tried by a magistrate under this section, and such officer

shall have power to grant probation and to revoke or re-

instate the probation of any person granted probation by

him.

(e) Proceedings before United States magistrates under

this section shall be taken down by a court reporter or

recorded by suitable sound recording equipment. For

purposes of appeal a copy of the record of such proceed-

ings shall be made available at the expense of the United

States to a person who makes affidavit that he is unable

to pay Cc: give security therefore, and the expense of such

copy shall be paid by the Director of the Administrative

Office of the United States Courts.

(f) As used in this section, the term “minor offenses”

means misdemeanors punishable under the laws of the

United States, the penalty for which does not exceed

imprisonment for a period of one year, or a fine of not

more than $1,008, or both, except that such term does not

include any offense punishable under any of the following

provisions of law: Section 1@2 of the Revised Statutes,

as amended (2 U.S.C. 192 [2 USCS 192]);: section 314(a)

of the Federal Corrupt Practices Act, 1925 (2 U.S.C. 252

(a)); amd sections 218, 211, 242, 594, 597, 599, 680, 6@1,

1304, 1504, 1508, 15@9, 2234, 2235, and 2236 of title 18,

United States Code [18 USCS 218, 211, 242, 594, 597, 599,

600, 601, 1304, 1504, 1508, 1509, 2234, 2235, 2236].

Local Rules of Practice before the United States District

Courts for the Northern District of Texas, Rule 1.3 in pertinent

part as follows:

Rule 1.3: United States Magistrates

The United States Magistrates of the Northern District

of Texas shall have the powers granted by the current

Order for the Adoption of Rules for the Exercise of

Powers and Performance of Duties by United States

Magistrates (Misc. Order No. 6). (See Appendix Vv).

Local Rules of Practice Before the United States District

Courts For the Northern District of Texas, Miscellaneous Order

No. 6, in pertinent part as follows:

“Rule 2

Additional Powers and Duties of Magistrates under 28 U.S.C.

636(b)

Upon entry of an order of reference by a District Judge, or

when required to do ¢s0 under the provisions of a local rule or

general order of this Court, a magistrate may perform any of the

following additional duties, and shall have all powers necessary

to perform such duties. Provided, however, that no part time

magistrate specially designated to perform such additional duties,

nor any partner or associate of such part time magistrate, shall

appear as counsel in any case before this Court when to do s50

would constitute e violation of the Conflict of Interest Rules for

Part Time Magistrates promulgated by the Director of the Adminis-

trative Office of the United States Courts [ 1.3(b)(i)-(viii),

Regulations of the Directory of the Administrative Office of the

United States Courts Governing the Administration of the United

States Magistrates System].

eee

(f) Miscellaneous Duties.

(5) Conduct of voir dire and selection of juries

for district judges in civil and criminal cases

with consent of the parties and the District

Judge.

The Fifth Amendment to the United States Constitution

provides, in pertinent part, as follows:

“No person shall be ... deprived of life, liberty, or

property, without due process of law...”

The Sixth Amendment to the United States Constitution

provides, in pertinent part, as follows:

“No person shall be ... deprived of life, liberty, or

property, without due process of law...”

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition Below.

Petitioner was convicted by a jury of the offenses of

conspiracy to steal property of the United States Government,

covering up a material fact to a Governmental Agency, and two (2)

counts of theft of Government property and aiding and abetting.

(Appendices C and D).

Petitioner appealed the conviction to the Fifth Circuit Court

of Appeals. The panel opinion of the Fifth Circuit Court of

Appeals affirming the conviction was entered on August 22, 1986.

The timely filed Motion for Rehearing was denied September 16,

1986. The panel opinion of the Fifth Circuit Court of Appeals was

published at 797 F.2d 1329 (5th Cir., 1986).

This Honorable Court denied certiorari on the first applica-

tion involving the first opinion after being notified that the

Fifth Circuit Court of Appeals was reconsidering the case En Banc

United States v. Ford, 1@7 S. Ct. 964 (1987). After the denial of

certiorair by this Honorable Court, the Fifth Circuit Court of

Appeals issued an order withdrawing their denial of the Motion for

Rehearing and granting rehearing En Banc. United States v. Ford,

811 F.2a@ 268 (5th Cir., 1987). After the reconsideration the

Court of Appeals sitting En Banc held that the magistrate was not

authorized to conduct jury selection ina felony case but held

that the error was somehow harmless error. The Fifth Circuit

Court of Appeals reinstated the remainder of the opinion found

at 797 F.2d 1329. United states v. Ford, F.2d

(5th Cir., 1987).

B. Statement of Facts

This case involves a seven count indictment alleging various

acts by the four (4) defendants to steal property from the United

States Government. Petitioner is accused in Count 1] cf conspir-

acy, in Count 3 of theft of government property over the value of

$100.08, in Count 4 with covering up a material fact by presenting

) and in Count 5 of theft of Government

an insufficient check,

property over the valve of $100.@0. (R., Vol. 1, p- 1-1@).,

At trial, the Government presented testimony to show that the

Petitioner and the other co-defendants submitted bids for various

surplus vehicles offered by sale by the General Services Adminis-

tration. (R-, Vol. 3, p- 41-43) The Government further presented

evidence that Petitioner and the co-defendants would pay for the

motor vechicles upon which they had submitted a successful bid

with a check drawn upon an account which when the checks were

presented held insufficient funds to cover the checks. (R., Vol.

3, p- 58-62). The Government further presented evidence that when

the checks were returned marked insufficient funds and account

closed by the banks that demand was made on Petitioner and the

others for payment. (R-, Vol. 4, p-. 155-157).

After a trial by jury, the two defendants who went to trial

were convicted on all counts.

Petitioner was sentenced by the trial judge to three years

confinement on each of the four counts with the fourth count to be

probated and to run consecutively to the other three counts. (R.,

Vol. 1, p- 12@). Notice of appeal was timely given on February

ll, 1986. (R-» Vol. \I, p-. 122) Petitioner has duly perfected

this her second application for writ of certiorari.

REASONS FOR GRANTING THE WRIT

THERE ARE SPECIAL AND IMPORTANT

REASONS FOR GRANTING THE WRIT

There are special and important reasons for granting ‘the

writ. Although the Court of Appeals correctly ruled that Congress

clearly and obviously did not intend for a magistrate to be em-

powered tc select an Anticle III jury in the place and stead of an

Article III judge, the rulina by the Court of Appeals that the

error was harmless beyond @ reasonable doubt denies a significant

number of rulings by this Honorable Court that major error in jury

selection effectively prevents application of the harmless error

rule. Cray v. Mississippi, 55 U.S.L.W. at 4638; Wainwright v.

Witt, 469 U.S. 412 (1985). In addition this Honorable Court has

for over one hundred (100) years placed great importance in the

ability of the trial judge to observe the manner of a juror in

answering questions as well as to hear the actual answer which

may be only half the story and, therefore, only half the truth.

Wain-wright v. Witt, supra; Reynolds v. United States, 98 U.S.

145 (1879)

Another important issue raised by this application for writ

cerrtiorari is the sufficiency of the evidence questions on two of

the counts. To answer one auestion, this Court needs to determine

if a check which this Court has held is not a “statement” of any

type for purposes of prosecution under Title 16 U.S.C., Section

1@14 can be a false “representation” under Title 18 U.S.C. Section

1001. The second question along these lines deals with whether or

not the Government must prove unique descriptive averments in the

indictment as alleged.

II.

THE RULING OF THE COUPT OF APPEALS THAT THE DENIAL

OF AN ARTICLE III JUDGE DURING JURY SELECTION IS

HARMLESS ERROR DENY THE IMPORTANCE OF THE TRIAL

JUDGE IN JURY SELECTION AND IGNORE ESTABLISHED

PRECEDENT OF THIS HONORABLE COURT DEALING WITH THE

IMPORTANCE OF THE TRIAL JUDGE AND JURY SELECTION IN

A CRIMINAL TRIAL.

This Honorable Court early on recognized the importance of a

trial judge's observations of a potential juror during his answers

to questioning in order to determine a question of fact correctly.

Reynolds v. United States, 968 U.S. 145 (1879). Further, in 1899,

this Honorable Court held that a trial by jury “is a4 trial bya

jury of twelve men, in the presence and under the superintendence

of a judge empowered to instruct them on the law and to advise

them on the facts, and (except on acquittal of a criminal charge)

to set aside their verdict if in his opinion it is against the law

or the evidence." Capital Traction Company v. Hof, 174 U.S. 1,

19 S. Ct. 58@, 43 L.Ed 873 (1899).

This Honorable Court appears to have reaffirmed its recogni-

tion of the importance of the trial judge in jury selection in the

recent cases of Wainwright v. Witt, 469 U.S. 412, (1985); Gray v.

Mississippi, 55 U.S.L.W. 4638. In addition, this Court correctly

held in Gray v. Mississippi, supra at p-. 4643 that the “nature of

the jury selection process defies any attempt to establish that

an erroneous Witherspoon-Witt exclusion of a juror is harmless".

The reason for such a holding is sound. The citizens ultimately

chosen to sit in judgment of a fellow human being are critical to

a fair trial mandated by Article III of the Constitution itself

and the Sixth Amendment as well and the process for their selec-

tion is for all intents and purposes outcome determinative. So

long as there exists the slightest question of fact to be deter-

mined by the jury; the attitudes of the prospective jurors,

their life experiences, their outlooks on life, their faith or

lack of it, are indespensible bits of data crucial to the trial

lawyer's selection of the jury. But more important than probably

all of them combined in the interplay or response of the potential

jurors to the trial judge, their attentiveness to the trial

judge's instructions, and their apparent reverence for the man or

woman who is going to preside over the trial of the citizen

accused of having engaged in anti-s cia! conduct or at least con-

duct deemed by the Congress worth of suppression.

The ruling by the Fifth “irewit Court of Appeals that the

denial of an Article III judge is harmless error has far reaching

impact and importance to the jurisprudence of this Country which

reaches far beyond the effect the erroneous harmless error ruling

has on Petitioner in this case. By the holding of the Fifth Cir-

cuit Court of Appelas, a trial court could designate the plumber

who stopped by to fix the sink to select the jury in a criminal

trial and so long as the litigants could not point to some action

or actions on the part of the plumber which deprived the accused

of a fair trial, then the harmless error rule could be used to

sustain the corviction. The entire jury selection process was

tainted and void and yet the Fifth Circuit Court of appeals holds

this to be harmless error! No court has ever gone this far in

invoking the harmless error rule to justify such gross blantant

error in a trial. The process of jury selection is so delicate

and personal that it is incapable of having the harmless error

rule invoked.

The pronouncement by the Fifth Circuit Court of Appeals that

“But because Lois Ford did not abject and because the trial was

fundamentally fair, we AFFIRM" ignores not only the importance of

jury selection and the importance of a trial judge in a criminal

trial but also ignores the local rule which mandated not just

fail to object but actual concert of the portier to the procedure

which requirement excuses a failure on the part of the litigants

to object.

The Court of Appeals has made a significant and important

ruling on an area of law which will have a wide and varied effect

on other cases to be tried throughcut the country. This Honorable

Court shouvule review the erroneous application of the harmless

error rule to the error contained in the case herein.

Ill.

THE HOLDING OF THE COURT OF APPEALS THAT GGIVING OF

AN INSUFFICIENT CHECK MAY BE A COVERING UP OF A

MATERIAL FACT IS IN CONFLICT WITH THIS COURT'S

RULING IN WILLIAMS V. UNITED STATES, 458 U.S. 279

This Honorable Court ruled in Williams, v. United States,

458 U.S. 279, 73 L.Ed.2d 767, 102 S.Ct 3@88 (1982) that “a check

is not a factual assertion at all, and therefore cannot be charac-

erized as ‘true’ or ‘false'” when considered in a prosecution for

making a false statement in violation of 18 United States Code,

Section 1014. The question Petitioner asks this Honorable Court

to address is whether the presentment of a check not covered by

sufficient funds without further statements by the accused is

sufficient to amount to a covering up of a material fact as

alleged in Petitioner's indictment. Petitioner contends that the

reasoning of this Honorable Court in the Williams case clearly

controls the disposition of her prosecution. To cover up a

material fact requires some affirmative act or statement. This

Court reasoned that a check being merely a draft payable on demand

and that the drawer, upon dishonor of the the draft and the requi-

site notice of the dishonor or protect will pay the amount of the

Graft to the holder. Williams v. United States, supra at p. 284-

285. Because the Government failed to show more than that the

Petitioner presented the check as payment for the property and

made no other assertions of the validity of the check and she took

no affirmtive actions to prevent discovery of the insufficiency of

the funds on deposit, there is insufficient proof of the covering

up of a material fact. The validity of the check could have been

verified by a simple telephone call to the bank. Under the

Williams case there can be no cover up simply by presentation of

an insufficient funds check. Petitioner said nothing when she

presented the check. (Appendix F) Petitioner contends that

silence alone cannot equal a cover up.

This Honorable Court should address the issue of whether the

Williams case is applicable to a prosecution under Title 18 United

States Code, Section 1001 Petitioner requests this Court grant

this application for writ of certiorari.

IV.

THE HOLDING OF THE COURT OF APPEALS THAT THE

GOVERNMENT NEED NOT PROVE A UNIQUELY IDENTIFYING

DESCRIPTION OF PROPERTY IS ERRONEOUS AND IN

CONFLICT WITH THIS COURT'S RULING IN

UNITED STATES V. HARDYMAN, 1@ L.Ed. 113.

This Honorable Court in the old case of United States v.

Hardyman, 18 L.Ed. 113 hela that the Government must prove

descriptive allegations as alleged. More recently this Court has

held that a defendant is entitled to a judgment of acquittal where

the evidence adduced at trial is at a material variance to the

proof at trial Dunn v. United States, 442 U.S. 108, 6@ L.Ed.24

743, 99 S. Ct. 2190(19792) Petitioner concedes that a variance in

the description of property is not usually a material variance.

Montgomery v. United States, 162 U.S. 410; 4@ L.Ed. 1@2@; 16 S.Ct.

797 1896). The variance is material, however, when the conviction

could not be used as a plea in bar to a subsequent prosecution.

United States v. Morris, 623 F.2d 145 (1@th Cir., 1988); cert..

denied 449 U.S. 1065, 66 L.Ed.2d 609, 101 S.Ct. 793.

Since the Government alledged in Count I of the indictment

that the defendants, including Petitioner, did embezzle, steal,

and purloin a total of sixteen (16) automobiles; describing only

ten (1@) of the vehicles by make, model, and vehicle identifi-

cation number, the Petitioner can only rely upon the description

contained within the indictment to be able to plead her convic-

tions in bar of a future prosecution. (Appendix E) Her Gilemma

is obvious. She is tried for stealing a specific motor vehicle;

presumably one of the sixteen (16) alleged in Count I of the

indictment; and has had that vehicle identified by the unique

vehicle identfication number but when the Government fails to

prove the only descriptive characteristic unique to every vehicle

her conviction is still allowed to stand and she may be tried

later for the one alleged when the Government can muster suf-

ficient evidence to prove the allegation. There is no proof that

the vehicle alleged does not exist, but rather only that the

vehicle alleged and the vehicle proved at trial have similar

physical characteristics though different vehicle identification

numbers. The reason unique vehicle identification mumbers are

placed on every 1978 Dodge Pickup that was made is so that one

1978 Dodge Pickup can be conclusively identified from any other

1978 Dodge Pickup. The fact that the vehicle identification

number as the one alleged is somewhat similar to the one proved at

trial is not controlling. Since it only takes one digit to

distinguish one vehicle from another and since the Government

normally purchases supplies including vehicles in bulk, it would

not be unusual for two vehicles to have grossly similar numbers.

In fact, the two similar motor vehicles alleged in Count I of the

indictment in Overt Act 2 have only the last four digits in their

vehicle identification number at a variance. Clearly when the

variance in the proof and the allegations involves a descriptive

averment that has the effect of uniquely identifying the property,

the variance by definition is material. When the variance voids

the ability of the accused to plead the conviction in bar of

future prosecutions then the variance voids the conviction. The

variance in the present case should void Petitioner's conviction.

If an accused cannot rely upon the descriptive averments which

identify The property to the exclusion of all other similar pieces

of property, chen what notice is there of the charges against

which one is called upon to defend? There must be some right to

notice left in the Constitution.

Petitioner prays this Honorable Court to grant her applica-

tion for writ of certiorari in order to review this error.

CONCLUSION

For the reasons stated above, Petitioner alleges that there

are special and important reasons for this Honorable Court to

consider the issues presented herein.

Accordingly, Petitioner respectfully prays that the petition

for certiorari to the United States Court of Appeals for the Fifth

Circuit issue.

Respectfully submitted;

ston, lst Floor

Fort Worth, TX 76102-2007

(817) 870-1544

State Bar No. 0344380¢

Attorney for Petitioner

BOA

TEX

RD CERTIFIED CRIMINAL LAW

AS BOARD OF LEGAL SPECIALIZATION

Danny D. Burns

Attorney at Lau

111 N Houston ¢ Fort Worth, Texas 76102 « 8178701544 — 817870 1545 — Metro 654 2916

September 25, 1987

Mr. Alexander L. Stevas

Clerk of the U.S. Supreme Court

No. 1, First Street N.E.

Washington, D.C. 20543

RE: Ford vs. U.S.A.

Dear Mr. Stevas,

1 have enclosed the original of a writ of certiorori

which I am filing on behalf of Petitioner Lois E. Hilton

Ford whom I am representing pursuant to my appointment by

the Honorable David 0. Belew in accordance with the Criminal

Justice Act. The previous petition denied by the Supreme

Court on January 27, 1987 was before the Fifth Circuit

Court of Appeals changed their decision on the merits but

not the ultimate outcome of the case on August 11, 1987.

I ask that you present the petition to the Court at your

earliest opportunity. 1 will soon forward 4 motion to stay

execution of the mandate for consideration by the Court.

1 thank you for your help and if there are any problems,

please contact me.

DDB /m3

Enclosures

ec: Honorable Charles Fried

Mr. Sidney Fowell

Mr. J. Michael Worley

“sy

87-5570

Supreme Court. US

FILED

SEP 28 1987

JOSEPH F SPANIOL. JR.

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 86-1096

UNITED STATES OF AMERICA,

versus

LOIS E. # ON FORD,

Defendant-Appellant.

Appeal fron the United States District Court fo

Northern District of Texas

(August 11, 1987)

Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY

JOHNSON, WILLIAMS, .GARWOOD, JOLLY, HIG

HILL and JONES, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Today the government argues that Congress intencec dy tne

Federal Magistrates Act to grant to

District Courts authority to delegate to a magistrate as an

“additional duty” the power to preside over the selection of the

jury in felony cases. Given the grave constitutional questions

such a construction would pose and the history and structure of

the legislation creating the office of United States Magistrates,

we are not persuaded of such congress ional purpose.

Appe rat d ‘xX A

mn,

We hold that the district court erred in allowing a

magistrate to preside over jury selection. Neither the

goverrment nor the defendant objected to the substitution of the

magistrate, however. Persuaded that the error was harmless

beyond reasonable doubt and that the trial was fundanentally

fair, we affirm the conviction.

-A-

Lois Ford was convicted by a federal jury in Fort Worth,

Texas, of stealing government property. The goverment proved

that Ford and others bid for surplus vehicles offered for sale Dy

General Services Administration and gave worthless checks in

payment.

She appealed, attacking her conviction on three grounds.

She argued that the district court erred in directing the

magistrate to preside over jury selection, that the evidence was

insufficient that any concealed facts were material, ana that the

trial proof varied fron tie indictment.

A panel of this court affirmed, rejecting all of Ford's

contentions .1/ The panel found that the congressional grant to

district judges of the power to give to magistrates additional

duties, not inconsistent with other law or the Constitution,

Ford, 797 F.2d 1329, 1335 (Sth Cir. 1986),

l/United States v.

ry 64 (1987).

included the power to direct magistrates to

selection in felony cases;

and was constitutional 2/ We took

reinstate the panel opinion in ali

that such

tne cese en banc —

respects exce

of the role of the magistrate in jury sele

A United States Magistrate presidec over

the jury, which took sone four hours despite the r

of the charges. The magistrate first

for the venire, introéuceé all counsel, ané ter

interrogated each menbder of the venire.

conplete jury charge, explainins

crminal case, the presunption of

accused not to testify,

are not evidence, that objections of

gerded, the nature

metaphor about wet grass,

meine

CGelegation viclate¢d as law

Summ arizeé the inéicmer:s

aa personali

He save 8 sudstantially,

the burden of proof in

innocence, the right sf ar

arguments sf lawyer

that staterents anc

of circunstantial

the judgins

that jurors were not to conmunicate with

and the sequence of proof

lawye

cf witness

ethers ao

in a criminal case.

magistrate charged the venire not to rea aout

undertake research on

2/Id. at 1330-33.

its own.

At this

juncture,

ereé idil i

ut the case

Finaliy, the

the case or

he allowed

3/United States v. Ford, 811 F.2¢ 268, 269 (Sth Cir. 1987.

counsel to question the panel, then set the number of perenptory

challenges--twelve strikes to be exercised jointly.

The selection was not free of difficulty. Ms. Denerson, a

menber of the venire, expressed “mixed feelings.” She explained,

“[Wjhen you saic circumstantial evidence and things, my son was

killed in October [an apparent robbery victim eleven months

earlier), and the evidence that they gave me, it happened isn't

clear in my mind, and I still have doubts about it. ... [H]le

was killed in process of robbery, and the answers that they gave

me has been two different sets of answers. .. .” When the

prosecutor askec whether she covld accept direct and circumstan-

tial evidence, she replied, “I think I could.” After sane

exchanges, the magistrate rejected a defense challenge for cause.

The magistrate seatec the selected jurors with two alter-

nates in the jury Dox and excused the rest of the venire. After

again instructing the jury not to discuss the case, he explained

when the district judge planned to start the trial and instructed

then to report to the jury roon on that day.

While the local rules of the Northern District of Texas

provide that a magistrate can preside over jury selection “with

consent of the parties and the District Judge ,"4/ the rules make

no explicit provision for review of any of .the magistrate's

4/N.D. Tex. R. 2(£)(5).

)

rulings during voir dire, but provide generally thet wehe-

reviewing non-dispositive rulings:

No ruling of a magistrate in any matter wiich he is

@enpowered to hear and determine shall be reverse,

vacated or modified on appeal unless the district judse

shall determine that the findings of the magistrate are

clearly erroneous, or that the magistrate’s ruling is

contrary to law or constitutes an aduse of discretion.=

Neither the goverment nor defense counsel itnher expressly

consented or objectes to the magistrate’s presicing over ‘tury

selection. The district judge was not available until two days

after the petit jury nad been carved fram the venire. There was

no attenpt to obtain review by the c¢istrict judge of the

maygistrate’s rulings and in particular his rejection of the

defense challenge for cause of Ms. Demerson.

The Magistrates Act of i968 abolished the system of United

States Connissioners, replacing it with a system of United States

Magistrates. The Act required that all magistrates be attorneys

if possible, eliminated the “anachronistic fee syste of

coupensation,” gave magistrates a secure eight-year tem, and

expanded their jurisdiction al

S/N.D. Tex. R. 4(d)(2).

6/1968 U.S. Code Cong. & Admin. News 1280 (current version at 28

8.6. $§ 631-639).

J/H.R. Rep. No. 1629, 90th Cong., 2d Sess., reprinted in 1965

o-$-

Section 636 of the Act, which defined magistrates’ powers, ee ee ee ee eee fF my Earns way

enpowered magistrates to try petty criminal offenses, yenerating until 1976. In 1974, the Suprene Court held that magistrates

considerable debate over whether magistrates could do so consis- could mot conduct evidentiary hearings in a petition for federa!

tently with article 111 8/ Chief Justice Burger noted that the HOSS eougus Fe hy 6 Stete pr ieoner Besauee it wes °ineonsis-

Judicial Conference of the United States objected to § 636 in its en ee ee ¢ 8S SORE SE Oe PETERS SNSTEE” WE thin. We NeaR ING

entirety, “fearing it so broad as to pe subject to constitutional ef the feterel M piotwrotes act Ah WUSe HPSRIE ly. The court

attack. °2/ Throughout the debate, there was no suggestion that held that the Habeas Corpus Act as consolidated into 28 U.S.c. ¢

the Act authorized magistrates to conduct the trial of other than S062 COqutEES Coste tens By om article 181 judge. mat ee. Seee

petty offenses. The implicit assumption was that magistrates did not rest there, explaining, “We conclude further that [Local

presiding over the trial of felonies was not envisioned, to a Rule 16) 16 © thet extent invalid because, as we construe

certainty--despite the presence of the additional duty language G36(bD). Shet section itself preciudes district judges fro

now said to allow magistrates to preside over jury selection in sesigning sajistrates the duty of conducting ov en tier}

felony cases.22/ ‘ hear ings ."22/

U.S. Code Cong. & Admin. News 4252, 4254. The Act #180 provided that:

-Q., id. eprinted in 8. ° nin. ee ;,

PE ene ee a aad Cong. & Admin. News The additional duties authorized by rule may include, mut

ere not restricted to--

AP o v. Wedding, 418 U.S. 461, 484 (1974) (Burger, C.J., : , :

issenting). (1) service as a special master in an appropriate civil

GBGGOR « » « 3

AG/Section 636(b) Of the 1968 Act prov ded: (2) assistance to a district judge in the condu

Any district court of the United States, by the pretrial or discovery proceedings in civil or criminal

concurrence of a majority of ali the judges of such district actions; end

court, may establish rules pursuant to which any full-time 1 im j ; P = £ i at ae

United States magistrate, or, where there is no full-time (3) preliminary review of application for posttrial relief.

magistrate reasonably available, any part-time magistrate ay,

Specially designated by the court, may be assigned within

che See bene nal jurisdiction of such count such additional 26 U.S.C. §$ 636(b) (amended 1976).

Guties as are not inconsistent with the Constitution and

laws of the United States (enpnhasis supplied). il/Wingo, 418-U.S. at 472.

o6- “Jo

“ty

Two years later, Congress, in response to Wingo, amended the

Magistates Act to clarify that a magistrate

shall serve as an officer of the court in disposing of

minor and petty criminal offenses, in the prel iminary

or pretrial processing of both criminal and civil]

cases, and in hearing dispositive motions and ev iden-

tiary hearings when Assigned to the magistrate by a

judge of the court, 3

This 1976 amendnent revised the magistrates’ powers into four

parts ,24/ provicing in the first that a judge can designate a

12/1d. (enphasis supplied). The Court looked to the legislative

history and concluded that Congress did not intend in the 1968

Act that magistrates conduct evidentiary hearings. It rejected

the suggestion that evidentiary hearings could be assigned under

the language of additional duty.

It is then plain that “additional duty” has never been seen

as @ prinary grant of power. As we explain, Congress responded

to Wingo Dy adding a new section. It did not change the

additional duty language.

13/H.R. Rep. No. 1609, 94th Cong., 2¢ Sess. 5, reprinted in 1976

U.S. Code Cong. & Admin. News 6162, 6165.

i14/Section 636(b) provides:

(1) Notwithstanding any provision of law to the contrary--

(A) @ judge may designate a magistrate to hear

and deteraine any pretrial matter pending before the

court, except a motion for injunctive relief, for

judgment on the pleadings, for summary judgment, to

Gismiss or quash an indictment or information made by

the defendant, to suppress evidence in a criminal case,

to dismiss or to permit maintenance of 2 class action,

to disniss 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 is clearly

erroneous or contrary to law.

(B) @ judge may also designate a magistrate to

conduct hearings, including evidentiary hearings, and

to submit to a judge of the court proposed findings of

Magistrate “to hear and determine any pretrial matter pend ing

before the court, except a motion for injunctive relief, for

judgment on the pleadings, for summary judgment, to dismiss or

quash an indictment or information made by the defendant, { and}

to suppress evidence in a criminal case. . . ,"i8/

Significantly, Congress provided that a judge may reconsider the

fact and recommendations for the disposition, hy a

judge of the court, of any motion excepted in subpara-

graph (A), of applications for posttrial relief made by

individuals convicted of criminal offenses and of

pr isoner petitions challenging conditions of

confinement.

findings and reconmendations under Subparagraph (8)

with the court and a copy shall forthwith be mailed to

all parties.

Within ten days after being served with a copy, any party

may serve and file written objections to such propose:

findings and reconmendations as proviced by rules of court.

A judge of the court shall make a de novo detemuination of

those portions of the report or specified proposed find ings

or recanmendations to which objection is made. A judge of

the court may accept, reject, or modify, in whole or in

part, the findings or recanmendations made by the magis-

trate. The judge may also receive further evidence or

reconmit the matter to the magistrate with instructions.

(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 for the

United States district courts. A judge may designate a

magistrate to serve as a special master jin 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.

15/28 U.S.C. § 636(b)(1)(A).

-9-

Or,

fr,

matters referred under this grant “where it has been shown that

the magistrate's order is clearly erroneous or contrary to

law. *8/

In this new first part, Congress also allowed district

judges to designate magistrates "to conduct hearings, including

evidentisry hearings, and to subm it to a judge of the court

proposed findings of fact and reconmendations . . . for any

motion."+2/ Finally it detailed a systen by which “[a]) judge of

the court shall make a de novo determination of those portions of

the [magistrate's) report... to which objection is made. *28/

In the second part, Congress gave to district judges the

Power to appoint a special master to serve in civil cases upon

consent of the parties 22/

Congress retained the additional duty provision fron the

Majyistrates Act of 1968 as the third part without relevant change

in language and without mentioning either the mechanics or the

standard for review by a judge of any additional duty assigned to

a nay istrate.20/ Intending that courts be innovative in their

16/16.

17/28 U.S.C. § 636(b)(1)(B).

18/28 U.S.C. § 636(b) (1).

19/28 U.S.C. § 636(b) (2).

20/28 U.S.C. § 636(b) (3).

-}0-

use of magistrates, Congress suggested that “district courts

would remain free to exper iment in the assignment of other duties

to magistrates which may not necessarily be included in the broad

category of ‘pretrial matters.' "21/ However, this legislative

entreaty was in a quest for “increased time available to judges

for the careful and unhurried performance of their vital and

traditional adjudicatory duties.*22/

Finally, Congress in the fourth part detailed for the first

time procedures and circumstances under which magistrates could,

with the consent of the parties, try civil cases .22/

III

In its consideration of the Magistrates Act of 1968 and its

anendment in 1976, Congress was wary of the strictures of article

III and the denands of due process. That sensitivity proved to

be well-founded. The 1976 anendment granting district judges the

power to delegate to magistrates the determination of dispositive

motions, such as motions to suppress, was pranptly challenged,

reaching the Suprene Court in 1980 ,24/ Congress had carefully

provided for de novo determination by district judges of proposed

21/H.R. Rep. No. 1609, 94th Cong., 2d Sess. 12, reprinted in 1976

U.S. Code Cong. & Admin. News 6162, 6172.

22/16.

23/28 U.S.C. § 636(c).

24/United States v. Raddatz, 447 U.S. 667 (1980).

-ll-

rulings on dispositive motions, convinced that this super inten-

dence resolved any article III concerns. A divided court in

Raddatz agreed. Three justices dissented, with Justices Blackmun

and Powell writing special concurrences. The dividing issue was

whether judicial supe. intendence essential to article III place

‘nent of judicial power required that a district judge hear the

evidence anew when a challenged ruling on a dispositive motion

turned on credibility findings. Four justices thought such

review essential. In any event, there was no disagreenent that

congressional concern over the limiting force of article II!

pronpted the detailing of review procedures for pretrial

Gispositive notions in crininal cases.

The Raddatz majority responded to the observation that such

pretrial decisions can be just as determinative as many trial

rulings by enphasizing the difference between pretrial and trial

proceedings. In distinguishing pretrial fron trial matters the

Raddatz majcrity observed that the “Court on other occasions has

noted that the interests at stake in a suppression hearing are of

@ lesser magnitude than those in criminal trial itsel £°25/ and

pointed out that “[a) defendant who has not prevailed at the

Suppression hearing renains free to present evidence and argue

to--and may persuade--the jury that the confession was not

25/Id. at 679.

@)] 2-

fr,

reliable and therefore should be disregarded .“28/ Justice

Marshall, with whom Justice Brennan joined, urged that the Act

would violate article III and deny due process unless construed

to require that an article III judge hear the testimony anew wher

credibility was at issue.22/ justice Powell agreed that, in such

circunastances, due process would require a fresh hear ing .28/

Finally, Justice Stewart, joined by Justices Marshall = and

Brennan, read the Act to require a fresh hear ing .22/

Raddatz furnishes two relevant insights. First, if Congress

intended that magistrates could be assigned the additional duty

of presiding over the trial of felony cases, the struggle over

petty offenses in the 1968 Act and the concerns over pretr ia!

ruling authority, explicitly provided for, would make no sense.

Similarly, if the Court believed that to be the intent of

Congress, the Raddatz majority's effort to distinguish pretrial)

and trial woule be superfluous.

We need not decide whether Congress has the power to allow a

Gistrict judge to delegate the trial of felony cases t© a

magistrate. It is sufficient here to simply observe that such a

26/1d. at 678 (footnote omitted).

27/Id. at 694-95 (Marshall, J., dissenting).

28/Id. at 686 (Powell, J., concurring in part and dissenting in

part).

29/Id. at 692 (Stewart, J., dissenting).

@} 3

construction would pose grave constitutional issues .20/ We are

obligated, of course, to read statutes to avoid constitutional

difficulty. Relatedly, we insist upon clear congressional

expression when the reach of claimed reading provokes issues

regarding constitutionally mandated spheres of goverrmental

power. For exanple, “(T)he Court consistently has required an

unequivocal expression that Congress intended to override

Eleventh Anendnent mmunity. . . .n3l/ In short, we do not

lightly engage such fundamental issues, but rather we properly

avoid then when we may fairly do so. We are then not persuaded

that Congress intended to grant to district judges the power to

delegate the trial of felony cases thenselves.

But of course the defense of a magistrate presiding over

jury selection does not rest on the assertion that an additional

duty could include presiding“ over trial of felonies. Rather, it

is suggested that jury selection is sufficiently preliminary to

the “trial” of a criminal case to escape constitutional concerns

Geras v. Lafayette Display Fixtures, 742 F.2¢d

r. 4) (Posner, J., ; see also

The Boundaries of Article III: Delegation of Final

30/See generall

1037, StS TT x

Conment,

and difficulties of statutory construction attending the asser-

tion that an additional duty may include presiding over the trial

itself. We reject this effort to separate jury selection anc

trial for two reasons.

First, we see the selection of the jury as an essential

conponent of the trial itself “because the mpartiality' of the

adjudicator goes to the very integrity of the legal system ."22/

Second, even if viewed as a pretrial matter, the difficulties of

review by an article III judge of a magistrate’s rulings in jury

selection--and the absence of a statutory procedure for that

review in the face of explicit review procedures for other

pretrial matters--leaves us unconvinced that Congress intended to

allow delegation of this important task.

The selection of a petit jury fron a venire is an mportant

part of trial. At conmon law only the judge could preside over

jury selection in felony cases .32/ Its tie to trial is also

illustrated by consistent judicial insistence upon its fairness

as a conponent of trial. The Suprene Court has noted the “long

and widely held belief that perenptory challenge is a necessary

part of trial by jury. "34/ Only this past tem the Court has

22/Gr ey v. Mississippi, 55 U.S.L.W. 4638, 4643 (U.S. May 18,

87).

33/4 Willian Blackstone, Commentaries *353.

34/Swain v. Alabana, 380 U.S. 202, 219 (1965).

-}] $-

atterpted to free the selection process of racial bias by

prescribing a process for clams that the prosecutor is using

perenptory challenges to exclude racial minorities .22/ Such

concern plainly rejects the view that jury selection is a prel ir-

inary and essentially ministerial act. At the least it is an

essential instrument to the delivery of a defendant's constitu-

tionally secured right to a jury trial rooted in the conmands of

@ue process, if not the trial guarantees of the sixth amendment

and section 2 of article III themselves.

At some point the accusatory process shifts fran a fact-

gathering and charging phase to its primary task of deciding

guilt. It is suggestec that this ought to be a floating point

that acjusts to the issue. This suggestion gathers strength fror

the circunstance that double jeopardy does not attach until the

jury is sworn. But all other trial protections are in force when

jury selection begins. For exanple jury selection is e part of

the trial for purposes of the Speedy Trial Ac t.26/ The rights of

the accused to be present, of confrontation, of counsel, and of

public proceedings do not await the swearing of the petit jury,

Dut are all enjoyed at the jury selection stage. That defendants

35/See Batson v. Kentucky, 106 S.Ct. 1712 (1986); see also H.R.

Rep. No. 1076, 90th Cong., 2¢ Sess., reprinted in [968 U.S. Code

Cong. & Admin. News 1792 (discussing the Jury Selection and

Service Act of 1968).

36/18 U.S.C. $§ 3161-3174.

-16-

enjoy such rights during jury selection ought not be Surprising.

"Due process implies a tribunal both impartial and mentally

canpetent to afford a hear ing ,"22/ “a jury capable anc willing to

decide the case solely on the evidence before it, "38/

That double jeopardy does not attach until a jury is sworn

Goes mot suggest that the selection of the petit jury is

preliminary. The jeoparcy line is an acconodation of the

government's prosecutorial discretion and fact-gather ing power

and the defendant's right to be free of double jeopardy. The

line represents “the broad perception that the Goverrmment's

action has reached the point where its power to retrace its stens

must be checked by the ‘countervailing interests of the

individual protected by the double jeopardy clause of the ‘fift:

anendnent.' 0 39/

In Press-Enterprise, the Court unanimously rejected the

argument that jury selection is sufficiently preliminary ane

divorced fron the trial's search for truth that it need not be

open. The Court explained that "[t]he process of juror selection

is itself a matter of importance, not simply to the adversaries

37/Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).

38/Snith v. Phillips, 455 U.S. 209, 217 (1982).

39/Press-Enterprise Co.

19 q

Cir. 1973));

368 (1979).

v. Superior Court, 464 U.S. 50], 509 n.8

tates v. Velazquez, 490 F.2d 29, 34 (24

see also Gannett Co., Inc. v. DePasquale, 443 U.S.

o] Jo

te.

™

but to the criminal justice systen."40/ The Court traced the

history of jury selection noting its open character, fran trials

as early as the Norman Conquest. Of course, Press Enterprise was

an explication of first anendment rights. But our point is that

jury selection is and has been regarded as a critical part of

trial; that the line between preliminary and trial issues is not

etchec in one place for all purposes does not suggest otherwise.

Second, if seen as a preliminary matter, the superintendence

by an article III judge of the magistrate's handling of jury

selection would be difficult at best. While the Raddatz majority

did mot insist that a district judge personally hear disputed

testimony, it did insist an article III judge have the right of

de novo review--plenary power to reject findings and insist on a

new evideitiary hearing. But, surely such power must be real ane

not illusory. Review of a trial judge's rulings on challenges to

venirenen is difficult at best, as illustrated by our experience

in administering the standards of Witherspoon v. Illinois.4//

Witherspoon set the measure for veniremen's views regarding the

death penalty in capital cases. The lower courts, including this

court, read Witherspoon to require de novo review of a state

trial judge's rulings on challenges made in the course of jury

selection. This proved to be a difficult task 42/

AO/Id. at 505.

41/391 U.S. 510 (1968).

-18-

fe.

In Wainwright v. witt,43/ the Court rejected the de novo

Standard in favor of the presumption of correctness standard of

28 U.S.C. § 2254(d) (fairly supported by the record). The Cour:

noted the difficulties of such a de novo stancard, concluding

that “deference must be paid to the trial judge who sees and

hears the juror. "44/ It pointed to Reynolds v. United States 42

——

in which the Court observed:

[T]he manner of the juror while testifying is often

times more indicative of the real character of his

opinion than his words. That is seen below, but cannot

always be spread upon the record. Care should, there

fore, be taken in the reviewing court not to reverse

the ruling below gupon such a question of fact, except

in a clear case .+&

The Wainwright court also rejected the suggestion that a tria?

judge must make explicit findings in ruling on challenges fo-

cause, recognizing the unique importance of sight and sound :-

the nigh intuitive judgments of a trial judge's rulings in the

course of voir dire.42/ Squaring this difficulty with Raddeatz's

42/See, £-g-" O'Bryan v. Estelle, 714 F.2d 365 (Sth Cir. 1983

cert. denied, 4 U.S. ( 4).

43/469 U.S. 412 (1985). "(T]he WitherspoonmWitt standard is

rooted in the constitutional right to an inpartial jury. .. .”

Gray v. Mississippi, 55 U.S.L.W. at 4643.

44/Wainwright, 105 S.Ct. at 853.

45/98 U.S. 145 (1879).

fe(haiiwr a ht, 105 S.Ct. at 854 n.9 (quoting Reynolds, 98 U.S. at

6- .

7/Id. at 855.

-19-

™

insistence upon superintendence by an article III judge poses

problens. An effort to engage in de novo review would be diff i-

cult and often impossible. Of course, we might conclude that a

district court has the inherent power simply to conduct the voir

gire a second time. But putting aside that such duplicative

effort frustrates the very efficiency claims made in its support,

such @ power also faces serious practical problens in jury selec-

tion. The seconde voir dire or rehearing of testimony may never

capture the original scene, and carrying a challenged venirenan

to a second interrogation before the district judge would be a

delicate exercise at best .18/ Unlike dispositive pretrial

motions, there is no opportunity to convince the jury afresh at

trial.

This absence of statutorily-prescribed review gains no

confort Dy finding inherent power to review by a eonstitutionally

adequate standard, because such a savings exercise fails to

respond to the inquiry into congressional purpose--a purpose

illuminated by the failure of Congress to detail a standard or

process for review despite the denonstrated view of its

importance. The relevant point is we ought not lightly attr ibute

to Congress the purpose to enter this thicket with no provision

48/"(T]he nature of the jury selection process defies any attenpt

to establish that an erroneous Witherspoon-wWitt exclusion of a

juror is harmless." Gray v. Mississippi, 55 U.S.L.W. at 4643.

-20-

for

review, whether or

Surmounted.

Three circuits have

presided over voir dire,

parties’

the magistrate’s presiding over voir dire on grouncs of acecuate

Not these practical probless might

decided cases in whi

but have disposec of

failure to obdject. Only the Ninth C

article III control and efficiency.

the judge's adsence fran

In Haith v. United

States A2/ the Third

Criminal case was not err

’

‘

”

)

the courtroon éuring jury selection :

Or because the parties failec to of

and because the defendant alleged no pre} udcice

absence 20)

A /

The court reached its holding desp:

a stenographic record of voir dire to allow rev

The First Circuit in

@ magistrate’s presiding

Preliminary instructions

In dicta the court add

effectively conduct the voir dire and preside at the selection

juries in civil and criminal cases... .

49/342 F.2d 158 (3c Cir.

50/

- et 159.

3 F.2d 866 (lst Cir.

United States v. River2aSol2,— uohelid

over voir dire, jury selectico-

because the defendant

ed, “We think that

1968S) (per curian).

1983).

@-2l-

- e

failed to obiec

@ magistrate

Interestingly,

court indicated that preliminary instructions were an important

part of the trial and should be handled by the judge, presumably

or the assumption that instructions are not important to voir

dir e23/--an assumption belied by the events of this case in which

Ms. Demerson's views were exposed by the instruction on circun-

Stantial ev idence.

The Seconc Circuit in United States v. DeFiore,—% also

uphels a magistrate's presiding over voir dire because the

Gefendant failed to make a contemporaneous objection to the

action, thus waiving his clam to an article III court for jury

selection.

Tne Ninth Circuit in two cases has addressed the validity of

@ magistrate's presiding over voir dire. In United States v.

Bez0l¢,22/ the court upheld the magistrate's actions even though

the defendant in the criminal case timely objected. The decision

found review and control in the district court adequate because

(a) the judge could receive the transcript of voir dire, (b) the

judge could observe the panel at trial, and (c) the judge had

wide discretion to disqualify jurors after the trial began.2&/

S2/Id. at 874.

33/i¢.

54/720 F.2d 757, 765 (24 Cir. 1983), cert. denied, 466 U.S. 906

T1984).

55/760 F.26 999 (9th Cir. 1985), cert. denied, 106 S.Ct. 811

T1986).

-22-

et.

Lacking evidence + @¢Ctual prejudice, the court a

’

}

’

conviction.

In United States v. Peacock ,_/ the Ninth Circuit upheld the

delegation of jury selection to a magistrate under § 636(5) (3

mported a requirenent of de novo review to avoid constitutional

Pproblens, and inplicitly said that the conduct of voir dire :-

mot an inherently judicial function even though it°constitutes

“significant elenent of a criminal trial. *58/ Finally, the cour

noted that the procedure may pranote more rapid and efficien:s

jury selection 22/

Gire as a preliminary rather than as a pert of trial: and

Significantly, none explained the necessity of the balance of -ne

1976 amendnent if “additional duty” could Carry its now claimed

power. Moreover, none of the decisions expressed serious corcer-

over the constitutionality of such acts. With respect, we see

voir dire in a different 1 ight--of greater mportance. The trial

lawyer knows that who decides the truth fram the ev idence may oe

@s important as the evidence. The process of selecting the

persons to hear the evidence inevitably introduces the trial

56/Id. at 1002.

57/761 F.2¢ 1313 (9th Cir.), cert. denied, 106 S.Ct. 139 (1985)

S8/Id. at 1317-19.

$9/Id. at 1319.

=23-

tr,

players to the jury and itself triggers the decisional process.

We have secured the rights to the selection process as an

essential part of trial by jury and struggled to eliminate bias

in its function.

It is then difficult to view jury selection as fit for

Gelegation to magistrates as part of a congressional effort to

free judges for performance of their “traditional adj udicatory

duty.” Rather, we see jury selection as such an integral

conponent of trial that we are not persuaded that Congress

envisioned its delegation to magistrates.

It is suggested that the sole limit of the congress ional

Qrant, Dy the additional duty section, of the power to Gelegate

is that the delegation not violate another law or the Constitu-

tion. But as we have explained, such a broad reading of

congressional purpose would render superfluous the balance of the

Statute. By that reading, the additional duty language was al}

that was necessary. Fairly read in context, Congress never

intended that this language swallow all that preceded it. Addi-

tional duty is a residuum, granting the power to Gelegate any

task not otherwise forbidden after we carve away that congery of

Guties that Congress never envisioned would be Gelegated. We are

not persuaded that Congress intended to grant authority to judges

to delegate to magistrates the authority to preside over felony

trials and over activities integral to and intimately tied with

trial.

-24-

™

Simply put., whatever the power of Congress may be, we are

not persuaded that Congress intendec that Tadccitional cuty”

include presiding over jury selection in felony cases. The

@istrict court erred in allowing the magistrate to preside over

the select.ion of the jury. But because Lo:s Ford di¢ not ob

and because t.he trial was fundamentally fair, we AFFIRM.—=

60/Our conclusion that this trial was not fundamentally unfa:r

despite the error is not a suggestion that, with consent of che

parties, there is no error. Trusting that district. judses will

abide this decision, we have no occasion to exercise Our super-

visory jurisdict.ion to prevent. its repetition.

o2$-

RUBIN, J., Circuit Judge, with whom REAVLEY, JOHNSON, and WILLIAMS,

Circuit Judges, join dissenting:

The Magistrates Act authorizes district courts to delegate

tO mayistrates “such additional duties as are not inconsistent

with the Constitution end laws of the United States.” 1/ The

majOrity Opinion holds that Congress did not mean what it so

plainly said, despite legislative history confirming that

Congress indeec said what it intenced. Allowing @ magistrate to

eonduct voir dire is mot contrary tc any law of the Unitec

States, and the majority Goes not state tnat it is. The opinion

states only, without deciding, that such a delegation under the

Girect supervision of the district jucye mignt viclate the

constitutional yuarantee of a jury trial in criminal cases anc,

theretore, tnat tne statute snoulc pe construed to pronibit sucn

a Geleyation. I differ botn with this statutory interpretation

and with the implicit constitutional construction, and 1!

therefore respectfully dissent.

i/ 28 U.S.C. § 636(b)(3) (1982).

The factual situation giving rise to this appeal 1s 4 common

eccurrence. Trial of two detendants was scneduled to begin, and

@ venire had been summonec. Judye David Belew, Jr., to whom the

case was assignec, was still engaged in the trial ot another

case. Instead of recessiny tne trial in proyress or sending the

venire home, he orally requestec Magistrate Alex McGlinchey to

conduct jury selection. The mayistrate introduced nimself to the

venire, explainec the case, anc concuctec the first part of the

voir dire. He then allowec counsel for each side to address the

members of the venire and to ask them questions. He advised the

two cetencants, eacn otf whom nac cifterent counsel, that tney

might each have ten peremptory challenges or, if they wisnec to

exercise their challenges iOintly, the might have twely

3 . ¥ y S

cnallenyes. Tne defendants chose to exercise their challen

jointly. Tney mace two cnallenyes for cause. Tne yovernmen

otfered no obDjection to these challenges, anc the magistrate

allowec one anc ceniec one. Tne parties tnen exercisec their

peremptory challenges, after which the magistrate excusec tne

jury ano instructec tnem to return two Gays later tor trial.

The mayistrate specifically instructed the defendants to

notity the district, judye of any matters he needec to consicer ir

the two days between voir dire and the swearing of the jury.

Notning, however, was called to the district jucye's attention.

when the jury tnus selected reported for trial, none of tne

parties raisec any question concerning either the eliyidility or

qualifications of any juror, the procedure the magistrate hac

tollowed, or the comments he had mace to tne venire. In the

fy.

presence of the judye and ot all parties, the clerk--not the Under this subsection, the district

courts would remain free to experiment in the

judye--administered tne oath to the jury, and tne trial beyan. I assignment of other duties to mayistrates

whicn may not necessarily be included in the

use the latter words advisedly: Botn in common vernacular and broac cateyory Of “pretrial matters" ....

tor the purpose we are now considering, that is when the trial If the district judyes are williny to

experiment with the assignment to magistrates

beyan. of other functions in aid of the pdusiness of

the courts, there will be increased time

II. \ available to judyes tor the caretul and

unhurried performance of their vital and

Fec. R. Crim. P. 24 states, “Tne court may permit the traditional adjucicatory duties, anc a

consequent benetit to both efficiency anc $he

detendant or nis attorney and the attorney tor the yovernment to quality of justice in the Federal courts. 2

conduct the examination of prospective jurors or may itselt

concuct the examination.” Althougn the prevailing practice in reprinted in 1976 U.S. Code Cony. & Ac. News 6162,

6172 (empnasis added).

| 3/ H.R. Rep. No. 1609, 94th Cong., 2d Sess. 12,

many federal district courts is for the trial judge to preside

over tne selection of a jury, the Rules do not require it.

senator Joseph Tydings, the Senate sponsor of the original

Protessor Orfield, in his treatise Criminal Procedure Under the

7 Federal Mayistrates Act, testified in the House hearings:

Feceral Rules, states, "([Njeitner Rule 24(a) nor the principles .

The Magistrate([s) Act specifies...

of due process require the presence of the trial judge during the three areas lex,licitly] because they came up

in Our nearinys and we thought they were areas

selection ot a jury, and, as a yeneral rule, the right to have in which tne district courts might be able to

benetit from the magistrate's services. We

the judye present during the selection of the jury may obe dic not limit the courts to the _ areas

} mentionec ... «

waivec.” 2/

we nope and think that innovative,

imayinative judyes who want to clean up their

caseload Beck! will utilize the U.S.

2/ 3 L. Ortield, Criminal Procedure Under the Federal magistrates in these areas and perhaps even

Rules § 24.65, at 180 (1966). come u with new areas increase the

etticiency of their courts.” ¥

As the Seventh Circuit stated in In re EstaDlishment Inspection

A House Report on the 1976 amendments to § 636 of the

of Gilbert & Bennett Manufacturing Co., 2/ “The only limitations

Mayistrates Act stated:

on section 636(D)(3) are that tne duties be consistent with the

Constitution and tederal laws and that they not be specifically

excluded by section 636(b)(1)."

4/ HearinysS on the Federal Magistrates Act before

Subcommittee No. 4 of the House Committee on the

Judiciary, 90th Cony., 2d Sess. 81 (1968) (emphasis

adoec).

5S/ 589 F.2d 1375, 1340-41 (7th Cir.), cert. denied,

444 U.S. 884, 100 S.Ct. 174 (1979).

tvery other circuit that has considered this question has

nelo tnat § 636(5)(3) allows a judge to delegate to a mayistrate,

as an “additional duty” within the meaning of this section, the

Quasi-jucicial Guty of presidiny Over voir dire. In Unitec

States v. Rivera-Sola, S/ the First Circuit held that, by failing

to opject to & mayistrate’s conduct ot voir dire, the defencan:

hao waivec his right to do so. But because this appeared to be a

reyular practice in tne District Court of Puerto Rico, the court

revieweo the procedure and, in a lengthy comment, approved. af In

Unitec States v. DeFiore, 8/ the Second Circuit reacheca tne same

result, relying on the defendant's failure to object to the use

ot the mayistrate. In unitea states v. Peacock 2/ ano united

States v. Bezold, iv/ the Ninth Circuit considered cases in which

tne cetendant nad timely objected, and found that § 636(D)(3)

does authorize the conduct of voir dire by a magistrate. That

court relied on the legislative history of tne Act and the

listing of voir dire as an “additional duty" in the Legal Manual

tor United States Mayistrates, 11/

&/ 713 e.2d 866 (lst Cir. 1983).

7 Id. at 872-73.

B/ 720 F.2c 757, 764-65 (2d Cir. 1983), cert. denied,

467 U.s. 1241, 104 S.Ct. 3511 (1984).

y/ 761 F.2d 1313, 1317-19 (9th Cir.), cert. denied,

U.S. ’ 1V6 SE. 139 (1985).

10/ 760 F.2G 994, 1001-03 (9th Cir. 1985), cert.

denied, 0.8. , 106 S.Ct. 811 (1986).

il Administrative Oftice of the United States Courts,

Legal Manual for Unitec States Magistrates §

3.10(3).

Circuit courts have also approved the delegation to

Mayistrates of other duties not expressly enumerated in § 626.

In Mathews v. Weber, i2/ tne Supreme Court upheld the referral to

Mayistrates ot all actions to review administrative

determinations regarding entitlement to Social security

Denetits. And tnis circuit, in United states v. boswell, i3/

permitted a magistrate to preside cver four hours of closing

aryument when the trial jugye became ill. There is no reason to

read the statute as forbidding a similar delegation of the

fs.

conduct ot voir dire to magistrates, provided, as the legislative

history indicates, that the deleyation does not offend the

Constitution.

12/ 423 U.S. 261, 266-72, 96 S.Ct. 549, 552-55 (1976).

13/ $65 F.2a 1338, 1341-42 (Sth Cir.), cert. denied,

439 U.S. 8149, 99 S.Ct. 81 (1978).

In Unitec states v. Raddatz, i4/ moreover, the Supreme Court

was unanimous in ftinoginyg that § 636 grants to judyes the

authority to deleyate the nolding of suppression hearings in

criminal cases to mayistrates. Tne Court in Raddatz was divicec

only on the issue of the constitutionality of this delegatior

aosent a de novo neérinyg Dy the trial judge.

4/ 447 U.S. 667, 100 S.Ct. 2406 (1980).

IIl.

The real issue before us, then, is whether!

the deleyation to

@ mayistrate of the concuct of voir dire, sudject to review by

the district court, violates the Constitution. The majority

first demolishes a straw man: “It would (or might) be

unconstitutional to delegate to a magistrate the trial of felony

cases. That is mot the issue. Tne sole question pefore us is

the constitutionality of delegating to an officer appointed by

tne court with express statutory authority, who 1s workiny under

the direct supervision of a district judge, the duty of

conducting voir dire. The majority opinion holds that presiding

Over voir dire is so inherently a part of trial that it must be

gone by a district judge in person. I do not agree with this

sanctification of the voir dire process.

Whether the mayistrate in this case yave tne venire what

might be considered a preliminary charge is irrelevant to the

constitutionality or delegating to such a court otficer the power

of presiding at the preliminary stage of jury selection. What is

Signiticant is that the magistrate acts as an aide to the

Gistrict judye under the judye's immediate supervision anc

control, and that ali of the mayistrate's actions are subject to

de novo review.

In Peacock and Bezold, the Ninth Circuit held that selection

ot jurors Dy a mayistrate does not offend Article III of the

Constitution. No other circuit has expressly ruled on the

constitutionality of such a deleyation, although the First

Circuit did state in dicta in Rivera-Sola that it would permit

Mayistrates to conduct voir dire even if the detencdant

opjectec. Rulinys by the Second 15/ and Thire 18/ Circuits, that

the parties may Dy silence waive their riyht to object to voir

dire Dy a magistrate, at least imply that voir dire by a

mayistrate does not violate the Constitution, tor waiver of a

constitutional riyht Gesiyned to protect the tairness of trial

must be knowing, express, and intelligent. i7/

is/ United States v. DeFiore, 720 F.2d 757, 764-65 (2¢

Cir. 1983), cert. denied, 467 U.S. 1241, 104 S.Ct.

3511 (1984).

16/ Haith v. United States, 342 F.2d 158, 159 (3d Cir.

1965), att'y per curiam 23] F.Supp. 495 (E.D. Pa.

1964); Stirone v. United States, 341 F.2d 253, 255-

56 (3d Cir.), cert. deniec, 381 U.S. 902, 85 S.Ct.

1446 (1965).

17/ See sScnneckloth v. Bustamonte, 412 U.S. 218, 235-

40, 93 S.Ct. 2041, 2052-55 (1973).

The constitutionality or this delegation does not depend on

finginy “a tloating point that adjusts to the issue,” as the

majority describes it. We nevertheless note the Supreme Court's

statement, in Press-Enterprise Co. v. Superior Court, i8/ that the

point at which a trial begins does indeed vary as a function of

tne riyht at issue. i3/ Thus, although, for purposes otf double

jeopardy, a trial beyins when the first witness is sworn, it

beyins earlier for purposes of the public's first amendment right

to attend criminal trials. We must apply the same reasoning in

the case petore us: The fact that voir dire may be treated as

part of a trial tor some purposes is not controlling.

“’y

18/ 464 U.S. SU], 104 S.Ct. 819 (1984).

19/ Id. at 509 n.8, 516, 104 S.Ct. at 823 n.8, 827.

Voir dire 1S an important stage ina felony trial, as it is

in any jury trial, Dut it is not for this reason so “inherently

judicial” tnmat no part of it may be delegated to a magistrate.

Comparing voir gire to other parts or a telony trial, certainly

an evidentiary hearing on a motion to suppress evidence is at

least as important: for it may determine the result. Yet, in

United states Vv. Racdatz, the Supreme Court approvec a

Mayistrate’s concuct ot an evidentiary hearing On @ motion to

Suppress evidence, as authorized Dy § 636(D)(1)(B) of the

Mayistrates Act.”

Tne Court in Raddatz first held that the Lengunes of the Act

does not require tne cistrict court to rehear the testimony on

which the mayistrate based his findings. “{T)he statute calls

tor a de novo determination, not a de novo hearing.” 20/ Turning

to the constitutional issues, the Court next found that the Act

does not violate the Due Process Clause because it requires the

district court to make a de novo determination of any cisputed

portion or the Magistrate's proposed findings anc

recommendations. The Court stated, “Of course, the resolution of

® Suppression motion can and often does determine the outcome of

= 10 -

the case; this may be true of various pretrial motions." 41/

However, “the interests at stake in a suppression hearing are of

a lesser magnitude than those in the criminal trial itsels‘." 22/ 23/ Id. at 681, 100 S.Ct. at 2415 ( footnote omitted).

24/ Jd. at 683, 100 S.Ct. at 2416.

2u/ Id. at 674, 100 S.Ct. at 241).

2)/ Id. at 677-78, 100 S.68 « at 2413.

Tne majority seeks to distinguish Raddatz on the Dasis that

. 7 ’ $ . . : q

22/ Id. at 679, 100 S.Ct. at 2414 asf Suppression hearinys are not so inherent a part of trial as voir

. ,

a fs : Gire. Certainly suppression hearings are even more likely to be

h to h neth hi legatior , ,

sueniny then —e 6Geeises wether thie §6Cplegetign Outcome determinative. The defenaant has the same right to a

violates Article III, tne Court stated:

1 u pudlic proceeding 23/ and to the assistance of counsel, 26/ And

the yovernnent is even permitted to lodge an interlocutory appeal

In passing the 1976 amendments to the 27/

rederal Mayistrates Act, Conyress was alert to ; if the hearing results in Suppression, —~— Other rt of a

Art. III values concerning tne vesting of Ny ' criminal t }

cecisionmaking power in mayistrates. . Fra’, moreover, are pertormed outside the judge's

Accordinyl Conyress made clear that the

yiy, yg presence. Fed. R. Crim. P. 15, tor example, permits a deposition

Gistrict court has plenary Giscretion whether

to authorize a magistrate to held an

evidentiary hearing and that the mayistrate

acts subsidiary to and only in aid of the

district court. Thereatter, the entire evidence at trial.

process takes place under the Giggsict court's

total control and jurisdiction. 42

to be taken before another ofticial and later to be offered in

Other “inherent” parts of trial are performed

in the juaye's presence but are not so innerently judicial that

The Court concluded: they must be performed by the judge. Fed. R. Crim. P. 3l(a)

Thus, although the statute permits the requires tnhat the veragict be returned "to the jwdye in ojen

Gistrict court to give to the mayistrate's

proposec findings of fact and recommendations

“such weight as [their] >erit commands and the

sound discretion of tie judge warrants,”

court.” Yet it is common practice for the verdict to be returned

to @ clerk, reviewed Dy the court, and then read aloud Dy the

Mathews v. Weber, supra, 123 U.S., at 275, 96 . , °

S.Ct., at 556, that delegation does not clerk. And in this case, as is Customary, the clerk administered

: ; ‘.

violate Art. III so long as the ulpymate the oath to tne jury and the witnesses.

Gecision is made by the district court. 42%

-ile- ° igs

)

25/ See Waller v. Georyia, 467 U.S. 39, 45-47, 104

S.Ct. 2210, 2214-16 (1984); Gannett Co. Vv.

DePasquale, 443 U.S. 368, 397, 406, 99 S.Ct. 2898,

2914, 2919 (1979); Rovinsky v. McKaskle, 722 F.2d

197, 201 (Sth Cir. 1984).

26/ See, @€.y., Davis v. Estelle, 529 F.2d 437 (Sth Cir.

1976).

27/ see Unitec States v. Kington, 80] F.2d 733, 735

(Stn Cir. 1986), cert. denied, U.S. » 107

$.Ct. 18688 (1987).

The conduct of voir dire is not considered so inherently

judicial as to be non-delegable in civil cases. In Puryear v.

Ede's Ltd., 28/ +) 5 court held that, after consent by the perties,

@ Mayistrate me, conduct the entire trial of a civil jury case

and enter final ucgment The panel found that the Magistrates

Act 3S "“Saveco trom any constitutional infirmity by its

requirement that all parties consent to such (delegation) and by

the power of the district cowrt to vacate the reference to the

magistrate on its own motion.” Tne court noted, “Each circuit

faciny this question has reached a similar conclusion.” 29/

Archie v. Christian, 2%

neld that a civil trial conducted by a mayistrate, even in the

absence of consent by both parties, should not be set aside. If

tne deleyation of voir dire to a magistrate does not violate the

“right of trial by jury” guaranteed by the Seventh Amendment, I

moreover, this court sitting en banc

™

Go not see why it violates the Sixth Amendment right to “trial,

Dy an impartial jury of the State anc district wherein tne crime

snall have been committed,” or the Article III guarantee that

“{t)he trial of all Crimes, except in Cases of Impeachment; shall

oe by Jury.”

28/ 731 F.2d 1153 (Sth Cir. 1984).

29/ Id. at 1154.

30/ BOw F.2¢ 1132 (Sth Cir. 1987) (en banc).

Even the delegation to magistrates of tasks consicerec to be

“innerently judicial” in telony trials has been épprovec Sy otner

31/

circuits. In United States v. Saunders, — a Ninth Circuit case,

the jury beyan deliberating on a Fricay afternoon at adout

4:30. Tne trial judye, for reasons. that do not appear in tre

Opin.on, lett a magistrate in charge of the proceedings. shortly,

before 6:00 y.m., the magistrate sent for the jury. He learnec

tnat a vercict was not imminent anc askec the jury to reconvene

on Honday morning as the trial judye had instructed Nim to co.

Tnree of the jurors intormec the mayistrate that they coulc not

be present on Monday. None otf the jurors cbjectec to stayin,

later on Frioay or to returning Saturday morning. Although the

mayistrate was unaDle to reach the trial judye, he instructed the

jury to continue deliberations that evening. Half an hour later,

the jury returned a guilty verdict. On appeal, the court

rejected Saunders’ argument, based on a constitutional

separation-of-powers thesis, that the magistrate exceeded his

authority in directing the jury to continue deliberations.

31/ 64] F.2¢ 659 (9th Cir. 1980), cert. denied, 452

U.S. 918, 1U] S.Ct. 3055 (1981).

The court odservec tnat “innerently judicial” tasks must be

pertormec Dy Article III jucyes, 32/ put concluded:

We find it unnecessary to decide whether

the mayistrate nere pertormed an inherently

judicial function. Despite the requirement

that such tunctions pve performed by Article

III judyes, the Supreme Court has recently

upneld the constitutionality of certain

judicial actions by magistrates. Under the

“para-judge"” rationale, the Mayistrates Act

comports with Article III because it subjects

Mayistrates' rulinys to de novo determination

by a tederal district judge. See United

States v. Raddatz, 447 U.S. 667, 681-€84,

(mayistrate conducted suppression hearing);

Mathews Vv. Weber, 423 U.S. 261, 266-72, 96

S.ct. 549 (1976) (social security case

referred to magistrate for preliminary

findinys and recommendation). Thus, the

Supreme Court

has allowed magistrates to

32/ Id. at 663, citing Glidden Co. v. 2éanok, 370 U.S.

S3u, S4y¥, 62 S.Ct. 1459, 1472 (1962): In re

Bakelite Corp., 279 U.S. 438, 458, 49 S.Ct. 411,

416 (1929).

33/ Id. (emphasis adcdec).

A later Ninth Circuit decision reliecé on Sa

rejectiny a Similar aryument. In Hinman v. McCartny,, 23’ tne

ot California had appealed from a cistrict court order granting

writ of habeas corpus. Tne state aryvecd tnmat 26 $.¢

636(bD)(1)(8), which authorizes federal magistrates <c ¢

evidentiary hnearinys in hnabdeas proceecings, v

Ill. The court upnelc the delegation, stating:

Although mayistrate([-conductec) evicentiar

hearings and sudsequent recommend

Gisposition of habeas cOrpus petitions =m:

be considered “inherently judicial" tasks,

71%

unde r Radcatz deleyation of tnose

responsibilities cannot De considerec

unconstitutional as the district judye retains

the power to make the final decision. The

Gistrict judye could, at the request of the

habeas corpus petitioner, or on his own

motion, conduct his own gyscentiary hearing if

he deemec it necessary. —

In comparison, even if Supervising voir dire is consiceres

“innmerently judicial” task, Raddatz requires us to sanction

provided the district judye retains the jower to maxe

effective de novo review.

=- 16 <-

34/ 676 F.2d 343 (9tm Cir.), cert. denied, 459 U.S.

1048, 103 S.Ct. 468 (1982).

Section 636(b)(3) authorizes judges to “assign” magistrates

“adsitional duties” not inconsistent with the Constitution anc

laws of the Unitec States. District courts impliedly have the

power, in assiyning these additional duties, to retain tne role

of making Ge novo determinations. Section 636(D)(1), which

ex, licitly allows mayistrates to conduct evidentiary hearings anc

mandates Ge novo review of actions to which the parties object,

in no way detracts trom tne judye's inherent anc implicit

reservation ot tne power to make a de novo determination when

Geleyatin, otner cuties to @ mayistrate. é

In this case, although tne trial judge had the power to

review in advarce the proposec voir dire questions or the

maygistrate's explanation of the case, he did not choose to do

so. The parties, nowever, did not object to any of the questions

Or to any actions of the magistrate, despite the magistrate's

instruction to the detendants to raise any matters with tne judye

that ne needec to consider before trial beyan. The availability

of de novo review satisfies constitutional requirements, Dut it

need not be exercised in the absence of a request. 38/ Tre judge's

“a

tailure to screen the questions or the magistrate's explanatior

of the case betore tne mayistrate concuctec voir dire, therefore,

goes not constitute a constitutional violation.

36/ Delyado v. Bowen, 782 F.2¢ 79, 81-82 7th Cig.

1986); United States v. Peacock, 76] F.2c 1313,

1318 (9th Cir.), cert. denied, U.S. » 106

%.Ct. 139 (19865); see also 28 u:S.c. §

636(D)(1)(C).

Several appellate decisions involving the celegation to

Mayistrates of duties other than voir dire confirm our reading of

§ 636(5)(3). Even though the trial jucge may not de reguirec tc

exercise de novo review when tne rties nave enterec AC

objection, the judye is nevertheless allowes to concuct ce nove

review at nis ciscretion. In Delgado v. Bowen, =—— the cCistrict

court had referred a motion for summary ju¢yment to a magistrate,

wn"

and, althouyn the parties did not object to the magistr

tindinys, the district jucye reviewed the entire recorc ce novo

ano chose not to follow tne mayistrate's recommendation. The

Seventh Circuit held that the district judye did not act

improperly, anc emphasized the legislative history of the Feceral

Magistrates Act, which clearly permits de novo Geterminations 5d;

aed

the district judge at all times. 38 In Northern Pipe

Construction Co. v. Marathon Pipe Line e6., a the Supreme Cou

noted that, when judges reter pre-trial motions to a magistrate,

ane

-_-*-

the judye remains “free to rehear the evidence or to call for

additional evidence." Indeed, in Uniteo states v. Lewis, 40/ this

circuit said, “It is for the district court to decide how much

{trom a suppression heariny) it wishes to rehear.” Thus, the

district court's authority to make a de novo review of voir dire

proceedinys is not iimited to matters about which the parties

opject. The judye miuyht elect to do so sua sponte, but in this

case he did not. The Constitution does not require us to mandate

ce novo review in every case.

37/ 782 F.2¢ 73 (7th Cir. 1986).

38/ Io. at 82.

39/ 458 U.S. SU, 7%, 102 S.Ct. 2658, 2875 (1982).

40/ 621 F.2d 1382, 1387 (Sth Cir. 1980), cert. ceniec,

450 U.S. 935, 101 S.Ct. 1400 (1981).

both Raddatz and circuit court decisions following it have

emphasizea the distinction between de novo review and a ge novo

nearing. Although the district court is not required to hold a

hearing to review all mayistrate-conducted suppression hearings,

or to do so when the parties contest the maygistrate's credibility

Geterminations, the district court nevertheless retains the

Giscretion to nold a new hearing. 4i/ Similarly, when a magistrate

i”

“%

conducts voir dire, the trial judge retains the discretion to

review the questions asked, and to question the jurors again on

his own. 42/ This circuit may choose to institute rules that

require the district jucye to be available while a mayistrate

conducts voir dire so that the judge can review contested rulings

in court at the time the dispute arises anc odserve the

prospective juror's demeanor; 43/ put tne adsence of these rules in

the statute is not an unconstitutional restriction of tne trial

judye's power of review. Moreover, the adsence of an

credibility issue in this case renders the judcje's failure to

observe juror responses in person immaterial.

1/ see Raddatz, 447 U.S. at 675-81, 100 S.Ct. at 24l2-

cae 15; United States v. Hardin, 710 F.2¢ 1231, 1235

(7tn Cir.), cert. denied, 464 U.S. 918, 104 $.Ct.

266 (1983).

42/ see Peacock, 761 F.2d at 1318.

43/ Ct. Levit, Nelson, ball and Chernick, Exy,editing

Voir Dire: an Bmpirical Study, 44 S. Cal. L. Rev.

916, 930-36 (1971) (hereinafter cited as Levit).

Review of mayistrate-concucted voir cGire thus appears no

less adequate than review of magistrate-conductec suppression

hearings. As the Ninth Circuit assumed in United States v.

Peacock and as the district court and the parties apparently did

in this case, the district judge could review the conduct of voir

- 20 -

Gire at his discretion and would do so at the request of the

parties. How the district judge should proceed--e.g., whether he

— 44/ 231 F. Supp. 495, 497 (E.b. Pa. 1964), aff'c per

should screen questions in advance--addresses a procedural matter Guriam, 342 F.2¢ 158 (3c Cir. 1965).

ana not the yer se unconstitutionality of the deleyation itself. 45/ Id. at 498. See also Hopt v. Utah, 110 U.S. 574,

De pending on the procedure followed, adequate oy 577-79, 4 S.Ct. 202, 203-05 (1884).

‘sue rintendence of the mayistrate's conduct ot voir dire Dy the 6/ 341 F.20 253 (36 Cir.), cert. denied, 361 U.s. 902,

district judye might be difficult in some cases. No problems rag 85 s.Ct. 1446 (1965). _

arose here. None nas arisen in any of the other cases in which

tne mayistrate has been permitted to conduct voir dire. The Centuries ayo, under the common law of England, challenges

hypothetical slippery slopes posed by the majority should not be for cause were exercised relatively infrequently, ai/ prodadly,

tne basis for depriving district judyes of tne power Conyress has Been Ss i oS See ee of jury venires at that

expressly yiven them. . time, 48/ but they were nevertneless ceemec an important j ,»ert of

In practice, even before passage of the Magistrates’ Act, tne detencant's right to a trial Dy jury. 49/ yet court decisions

the Constitution has not been deemed to require the court te - 7 indicate that it was not remarkaDle for chalienyes for cause to

conouct. voir dire. In Haith v. United States, Aa4/ the district : be triec to and decided by panels of other jurors rather tnan Dy;

court's approval of the deleyation of voir dire to magistrates the jucoye, 39/ ane that such challenyes may have Deen triec outsice

relied partly on the testimony of lawyers that they recallec only é the gresenee of the jusyt. 2i/ Cee MHSChty’S CNet OF. Ss

one criminal case in the Eastern District of Pennsylvania in more yassaje in pblackstone's Commentaries, which is expressly limitec

than ten years in which the jury was selected in tne presence of to cnallenyes by the king and Goes not mention the practice of

a judge. In addition, the court found that there was never any trying tne defendant's challenyes tor cause Detore other jurors,

“aosolute common law requirement” that the judye be present is not to the contrary. 22/

Guriny voir dire. 45/ And in stirone v. United states, 46/ voir ° i

dire was supervised by a deputy clerk. 47/ Levit, Supra, at 922.

oe - 22-

™~

~—_

see id.; Moore, Voir Dire Examination of Jurors:

Il. The Federal Practice, 17 Geo. L.J. 13, 36

(1928).

see 4 wW. Blackstone, Commentaries %°352-53; The

rial of Peter Cook (1696), 4 Haryrave'’s State

Trials 738, 748.

see Anonymous, 1 Salkeld 152 (1795); > ©.

Holdsworth, A History ot English Law 183 (3c ed.

1944); 3. Thayer, A Prelimina Treatise on

Evidence at the Common Law 123-24 (1898); Moore,

Voir Dire Examination of Jurors: I. The Enylisn

Practice, 16 Geo. L.J. 438, 442-43 (1928); see also

Mima Queen v. Hepburn, 7 Cranch 290, 296-97 (1813);

J. Goebel anc T. Nauynton, Law Enforcement in

Colonial New York 618-19 (1944).

see HOpt v. Utah, 110 U.S. at 577-79, 4 5.Ct. at

2U3-U5; Anonymous, 1 Salkeld 152.

That passage reads:

This privileye of peremptory

cnallenges, thouyh granted to the

prisoner, is genied to the king Dy the

Statute 33 Edw. I. st. 4, which enacts

that the king shall challenge no jurcrs

without assiyniny a cause certain, to be

tried and approved by the court.

However, it is held that the kiny neec

not assign his cause of challenge till

all the panel is gone through, and unless

there cannot be a full jury without the

person so challenged; anc then, anc not

sooner, the king's counsel must show the

cause, otherwise the juror shall be

sworn.

w. Blackstone, Supra, at *333.

—)> -

™

Not only does the deleyation of voir dire to @ magistrate

uphold the inteyrity of the trial process; it is also consistent

with the Article III principle of

Supreme Court has oiten stated

separation of powers. The

that the tenure and salary

yuarantees of Article II! principally serve a se,peration-of-

powers tunction; their dominant

indepencence of the Judiciary from

anc Leyislative Branches of yovernment.

availability otf adequate de novo

purpose is "to ensure the

the control of the Executive

» 353/ Clearly, the

review by the trial jucye

preserves the independence of the judiciary. 24/

3/ Northern Pipeline Constr. Co. v. Marathon Pipe Line

Co., 458 U.S. 50, 59, 102 S.Ct. 2858, 2865 (1982);

accorc Commodity Futures Trading Comm'n v. Schor,

U.S. ’ , 306 Ste. 23265, 3296. 32357

11986); United States v. Will, 449 U.S. 20U, 217-

19, 101 S.Ct. 471, 482-83 (1980); O* Donoghue v.

united states, 289 U.S. 516, 530-34, $3 S.Ct. 740,

743-44 (1933).

4/ Cf. Raddatz, 447 U.S. at 681-83, 100 S.Ct. at 2415-

16; Hinman v. mecCarthy,

676 F.2d 343, 346 (9th

Cir.), cert. denied, 459 U.S. 1048, 103 S.Ct. 468

(1982); Unitec States v.

Saunders, 641 F.2c 659,

663 (9tn Cir. 1980), cert. denied, 452 U.S. 918,

101 s.Ct. 3055 (1981).

The Supreme Court's decision

Commission Vv. schor 33/

in Commodity Futures Tracing

confirms this se pa ration-oOt- powers

analysis. That Opinion emphasizes the importance of an

independent judiciary as distinguished from administrative

- 24 -

agencies. Article III “safeguards the role of the Judicial

branch in Our tripartite system Dy barriny conyressional attempts

‘to transfer jurisdiction [to non-Article III tribunals] ‘for the

purpose of emasculatiny" constitutional courts, anc tnereby

preventing ‘the encroachment or aggrandizement of one branch at

the expense of the other.’” 38/

$5/ U.S. , 106 S.Ct. 3245 (1986).

6/ Ic. at , 106 S.Ct. at 3257 (citation omitted)

(emphasis added).

This structural principle on which the Court relied does not

rejate to the pertormance of duties within the jucicial branch.

A fortiori, there iS no reason to condemn a deleyation of power

within tne jucicial bDrancn Dy an Article III judye to an ofticer

wnO 1S @ppointec Dy tne court and whose actions are not only

under tne jucye's instructions Dut are subject to plenary review.

In Donovan v. Sarasota Concrete co., 22/ the Eleventh Circuit

considerec another type of delegation to a mayistrate, that of

the power to make a probable-cause cetermination for the issuance

Of an acministrative warrant. The court stated:

Under tne Magistrates Act, a district

court retains general supervisory power

to review any action taken by a federal

mayistrate. This is because the

mayistrates themselves are not Article

III jucyes. Magistrates are allowec to

pertorm “innerently judicial” acts only

because they act under the supervision of

an Article III judye. Decisions Dy a

Mayistrate pursuant to 28 U.S.C. § 636(b)

are not final orders anc may not be

appealec until rendered final by a

Gistrict court.

The principal consideration

. prompting the requirement of forma |

judicial review, and indeed the concept

underlying the establishment of an

Article III judiciary, is the desire to

insulate judicial acts from executive and

legislative coercion. Therefore, the

roper method to ensure that é

magistrates Gete rmination remains

untaintec Dy such coe on is review Dy

on Article 1) court. oe”

57/ 693 F.26 106] (llth Cir. 1982).

58/ Ic. at 1066-67 (citations omittec).

Iv.

The Mayistrates Act expressly authorizes district courts to

Geleyate tO mayistrates any Guty not inconsistent with the

Constitution or laws of the United States. These express words

are bDuttresseco Dy ua clear declaration of Conyressional intent

tnat tne oftice of mayistrate be used in an innovative and

imayinative way. 33/

S¥/ see Hearings on the Federal Magistrates Act before

Subdcommittee No. 4 of the House Committee on the

Judiciary, 90th Cony., 2¢ Sess. 81 (1968).

States District Court tor

: ‘d States of America vs. ® Pa

Every other circuit that has consicered the issues before us WOAKT - B. BIVIsTon ¢

has interpreted the Act to rmi ‘

oar ee eee ee Cee JUDGMENT AND PROBATION/COMMITMENT ORDER

@ mayistrate, anc the only circuits that have have considered the

; : In the presence of the attorney for the government — AY

constitutionality ot such a deleyation nave upheld it. we should the defendant appeared in person on this date _— DARY 7TH 1985 |

LJ) WITHOUT COUNSEL However the court advised defendant of right to counsel and ashed whether defendant desired to have —

counsel appointed by the court and the defendant thereupon waived assistance of counsel

yiven them Dy Conyress to make their judicial tunction more _X%_j) WITH COUNSEL | Carmen Glasner, court-appointed. J

DEFENDANT'S ADDRESS: 1111 Rempsford, Katy, TE¥EE” ““TYéso

LJ GUILTY, and the court being satisfied that L__JNOLO CONTENDERE, L_XINOT GUILTY

not deprive district judges of the power to use the assistance one.

ertticient Dy posing a constitutional spectre in order to reach a

Statutory interpretation that denies the statutory words their AEA there is a factual basis for the plea

plain meaning.

‘ LJ NOT GUILTY. Defendant is discharged

I theretore respectfully dissent. There being » HARKS verdict of x eae to Counts 1, 3, 4 and 5.

Ld GUILTY.

Defendant has been convicted as charged of the offense(s) of Conspiracy; Covering up material facts

(ONG &

eer > to Government Agency; Theft of Government Property and Aiding and Abetting,

in violetion of Title 18, Sections 371, 1001, 641 and 2.

OPPENSE COMMITTED: Count 1 - April 10, 1961.

Count 3 - April 21, 1981.

Count 4 = July 23, 1961.

—

Count 5 = July 23, 1961. :

> The court eshed whether defendant had anything to say why judgment should not be pronounced Because no sufficient cause to the contrary

«TENCE

warn

maOER

™

was shown, or appeared to the court, the court adjudged the defendant guilty as charged and convicted and ordered that The defendant 1s

hereby Committed to the custody of the Attorney Ceneral or his authorized representative for imprisonment for a period of three (3)

years on Count 1, no restitution required; three (3) years on Count 3, and three (3)

> years on Covnt 4, said sentences to run concurrently with Count 1; and three (3)

years on Count 5, saic sentence to run consecutively to sentences imposed on Counts

1, 3 and 4, and sentence of imprisonment on Count 5 is probated under the usual

conditions of Probation.

IT IS PURTHER ORDERED that the defendant to report to U.S. Marehe} \e Office at

10:00 a.m. on Pebruary 24th, 1986 to commence serving sentencaganam samme o What

FILED

PEGAL

«oTnons

oO +

osarion FEO? 865

DANCY (ALL BONSATY, CLERK

' ®,

DITIONAL | Im addition to the special conditions of probation imposed above. it 1s hereby ordered that the 107 set oul on the

NOITIONS | reverse side of this judgmeni be imposed The Court mav change the condit of probation, ce or extend the period of probation and

oF t any teme during the probation period or within @ maximum probation period of five years permitted by law may issue a warrant anc

OBATION ! revoke probation for e violation occurring during the probstron period

The court orders commitment to the custody of the Attorney Ceneral and recommends. it ts ordered that the Clerk deliver

oe 37 @ termment @ certified copy of this pudgment

- sommen. Certified a truc copy of an instrument and commitment to the US Mar

saron | .on file in my office on Jo 1906 shal oF other qualified officer

, NANCY MALL DOMERTY, Clerk, U.S. District

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 86-1098

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LOIS E. HILTON FORD,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(August 22, 1986) r

Before RUBIN, JOHNSON, and JONES, Circuit Judges.

RUBIN, Circuit Judge:

A federal magistrate presided at the selection of the jury

for a felony trial, without objection by the accused. The dis-

trict judge, however, was present when the clerk administered the

oath to the jury and throughout the trial. We hold that the

magistrate's participation in jury selection did not violate the

statutory provisions regulating the scope of the duties that may

A ppen ad Con gf <|t R

Lal {\ gi &r

mr.

be delegated to a magistrate or deny the accused due process of

law. We also affirm the defendant's conviction on the charge of

covering up a material fact, in violation of 18 U.S.C. § 1001,

and her conviction on the charge of theft of a motor vehicle

finding no legally significant variation between the indictment

and the evidence presented by virtue of a difference in two

digits of the identification number of a vehicle otherwise accu-

rately described in the indictment.

Two of the four persons charged in a multi-count indictment

entered guilty pleas. When trial of the case against the remain-

ing two defendants, Owen Ray Hilton and his erstwhile wife, Lois

E. Hilton Ford, was to begin, Judge David Belew, Jr., to whom the

case was assigned, was still engaged in the trial of another

case. He orally requested Magistrate Alex McGlinchey to preside

during the selection of a jury. The magistrate introduced him-

self to the jury venire, explained the case, and conducted the

first part of the voir dire. He then allowed counsel for each

side to address the jury and continue with the voir dire. He

advised the two defendants, each of whom was represented by dif-

ferent counsel, that they each might have ten peremptory chall-

enges or, if they wished to exercise their challenges jointly,

they could have twelve challenges. The defendants agreed to

exercise their challenges jointly. After the magistrate granted

-2-

fr.

one challenge for cause, without objection, the parties exercised

their peremptory challenges.’ The jury was then excused. Two

@ays later, the jury was recalled and then sworn before Judge

Belew. Prior to trial, no objection to the procedure was lodged

either with the magistrate or Judge Belew.

Federal Rule of Criminal Procedure 24 states, “The court may

permit the defendant or his attorney and the attorney for the

government to conduct the examination of prospective jurors or

may itself conduct the examination." 2/ the prevailing practice

in federal court is for the trial judge to preside over the

selection of a jury, but the federal rules do not require it.

Professor Orfield, in his treatise Criminal Procedure Under the

Federal Rules, states, "(Njeither Rule 24(a) nor the principles

of du2 process require the presence of the trial judge during the

selection of a jury, and, as a general rule, the right to have

the judge present during the selection of the jury may be

waived.” 2/

l/ Fed. R. Crim. P. 24(a).

2/ 3 UL. Orfield, Criminal Procedure Under the Federal

Rules, § 24.65, at (1966).

The powers of a United States Magistrate are set out in 28

U.S.C. § 636. After authorizing the magistrate to perform cer-

fn.

tain specific duties, 2/ the statute, at § 636(b)(3), states: "A

magistrate may be assigned such additional duties as are not

inconsistent with the Constitution and laws of the United

states." 4/ The House Report on the bill that was eventually

enacted indicates that this “additional-duties" provision is to

be broadly construed as authorizing magistrates to perform a wide

range of quasi-judicial tasks. 3/ It adds that this section

"enables the district courts to continue innovative experimenta-

tions in the use of this judicial officer." §/ the Legal Manual

for United States Magistrates lists as an “additional duty” that

may be delegated to a magistrate the "[c]onduct[ing) of voir dire

and selecti(ng) of juries for district judge." y

3B/ 28 0U.S.C. ~ 636(a) & (b) (1) & (b)(2) (Supp. 1986).

Id. § 636(b) (3).

ke &

H.R. Rep. No. 1609, 94th Cong., 2d Sess. 12, reprinted

in 1976 U.%. Code Cong. & Ad. News 6162, 6172, cited in

United States v. Rivera-Sola, 713 F.2d 866, 872 (ist

Cir. 1983).

&/ 16.

7/ Administrative Office of the United States Courts, Legal

Manual for United States Magistrates § 3.10(3).

-4-

In accordance with congressional intent, the authority given

courts to delegate to magistrates powers not explicitly mentioned

in $$ 636(a) or (b)(1) & (2) has been held to sanction the dele-

gation of a number of quasi-judicial duties. Thus, in Mathews v.

Weber, 8/ the Supreme Court upheld a district court rule that

required initial reference to a magistrate of all actions to

review administrative determinations regarding entitlement to

Social Security benefits. In United States v. Saunders, 2 the

Ninth Circuit held that it was permissible for a magistrate, when

the judge left him in charge of a jury during deliberations, to

direct the jury to continue its deliberations during evening

hours. Even if this action was “inherently judicial,” the court

found that the magistrate might constitutionally execute it under

the supervision of an Article III judge because the magistrate

was acting, in effect, as a "para-judge.” 10/ he Seventh Circuit

has held that 28 U.S.C. § 636(b)(3) permitted a magistrate to

issue a warrant authorizing the Secretary of Labor to inspect a

workplace. The court found the action not inconsistent with the

Constitution and federal laws and not forbidden by § 636(b) (1). 22/

And this circuit has refused to reverse a conviction on the

ground that, when the judge became ill, the magistrate presided

during four hours of closing argument. i2/

B8/ 423 U.S. 261, 96 S.Ct. 549 (1976).

fs.

641 F.2d 659 (9th Cir. 1980), cert. denied, 452 U.S.

918, 101 S.Ct. 3055 (1981).

10/ Id. at 663-65 (distinguishing United States v. De La

Torre, 605 F.2d 154, 155-56 (Sth Cir. 1979)).

11/ Establishment Inspection pf Gilbert & Bennett Mfg. Co.,

589 F.2d 1335, 1340-41 (7th Cir.), cert. denied, 444

U.S. 884, 100 S.Ct. 174 (1979); see also Emp.re Steel

ys Co. v. Marshall, 437 F.Supp. 873, 881-82 (D. Mont.

12/ United States v. Boswell, 565 F.2d 1338, 1341-42 (Sth

Cir.). cert. denied, 439 U.S. 819, 99 S.Ct. 81 (1978)

(court found that substitution of magistrate violated

Fed. R. Crim. Proc. 25(a), but found violation not of

constitutional magnitude).

The question whether the judge must be present when a jury

was selected was first raised in Stirone v. United States, 23’ in

which selection of a jury by a deputy clerk was challenged in a

collateral attack on a prior conviction. The judge had been

present during most of the voir dire but left the bench to go to

his chambers when counsel began making their peremptory chal-

lenges. i4/ Because there had been no objection, the court found

that the defendant had waived his right to object to the absence

of the judge. Then in a footnote, 15/ the Third Circuit added:

In fairness to the trial judges of this cir-

cuit, hereafter in criminal cases, irrespec-

tive of suggestion of waiver by the parties,

trial judges will not leave the bench during

*s.

any part of the voir dire or other jury selec-

tion process without recessing the court.

13/ 341 F.24 253 (3d Cir.), cert. denied, 381 U.S. 902, 85

S.Ct. 1446 (1965).

14/ Id. at 255.

15/ Id. at 256 n.3.

Shortly after it decided Stirone, however, the Third Cir-

cuit, in Haith v. United States, 168/ affirmed a district court

decision approving the selection of a jury by counsel outside the

judge's presence. The district court opinion stated that this

had been the prevailing practice in both the Eastern and Western

Districts of Pennsylvania for many years and the court held that

the right to object had been waived by the parties. iy/

16/ 342 F.24 158 (3d Cir. 1965), aff'g per curiam, 231

F. upp. 495 (E.D. Pa. 1964).

17/ 231 F.Supp. at 498.

The precise issue presented in this case, the selection of a

jury by a federal magistrate in a criminal case, was first con-

sidered by the First Circuit in United States v. Rivera-Sola. 18/

The court held that, by failing to object to the procedure ini-

-7-

fs.

tially, the defendant had waived his right to do so. But because

this appeared to be the practice in the District Court of Puerto

Rico, the appellate court went on to review it and, in a lengthy

comment, approved. 13/ the court concluded:

We think that a magistrate can effectively

conduct the voir dire and preside at the

selection of juries in civil and criminal

cases, thus saving valuable time for our bdusy

district court judges. The trial of crimina:

cases is, however, entrusted to district

judges. Preiiminary as well as final jury

instructions play an important part in the

trial of any case. The jury should not be

given the impression that the instructions

given it are merely a routine matter of

form. 20/

In United States v. DeFiore, 22/ the Second Circuit reached the

same result, relying on the defendant's failure to object to the

use of the magistrate.

19/ Id. at 872-73.

20/ Id. at 874.

21/ 720 F.2d 757, 764 (24 Cir. 1983), Cert. denied, 467 U.S.

1241, 104 S.Ct. 3511 (1984).

In these cases, the defendant had not objected, Dut the

Ninth Circuit has found an objection without merit. In United

States v. Peacock, 22/ that court held that the selection of jurors

by a magistrate offends neither the statute nor Article III of

the Constitution, even when the defendant has timely objected, so

long as de novo review of the jury selection procedure by the

@istrict court is available.

This conclusion is sound in principle. Magistrates are

para~judicials appointed to assi t trial judges. The very pur-

pose of their appointment is to minimize the burden on Article

III judges of detailed work and thus enable judges to handle a

greater volume of truly judicial assignments. When this new

judicial office was created, Congress could not foresee the pre-

cise scope of the duties a magistrate might perform, so it

encouraged innovation and experiment. So long as no inherently

judicial task is delegated to the magistrate in violation of the

Constitution or the express provisions of ‘en eneiein the inno-

vative use of magistrates fulfills Congress’ purpose. We there-

fore hold not only that the right to object was waived, but that

objection would have been without merit if voiced.

22/ 761 F.2d 1313, 1317-19 (9th Cir.), cert. denied,

U.S. » 106 S.Ct. 139 (1985).

While the due process argument was not specifically

adéressed, as such, in any of the cases we have cited, due pro-

cess requires only fundamental fairness. 23/ The procedure

-9-

followed in this case was entirely fair, subject to review by the

district court, and permitted by the statute and Article IIr of

the Constitution. We, therefore, join our sister circuits in

approving the use of federal magistrates to preside over jury

selection in civil and criminal cases.

See Haith v. United States, 231 F.Supp. 495, 498 (E.0.

Pa. 1964), aff'd rc curiam, 342 F.2d 158 (3d Cir.

1965), 3 L. Orfield, Supra note 1, at 180.

II.

The evidence, construed most favorably to the Government as

it must now be, shows a scheme to swindle the United States tat

was bound eventually to be uncovered. In 1981, Ford and her ther

husband, Hilton, together with two others, conspired to obtain

government property, ostensibly by purchasing it with checks

@rawn on accounts known by them to have insufficient funds, tren

to resell the property and pocket the proceeds without honoring

the checks. Count I of the indictment, which charged a conspi-

racy to embezzle, steal, and purloin property of the United

States, lists a number of overt acts. This is typical: On June

17, 1981, Lois E. Hilton Ford opened an account in a West

Galveston, Texas, bank in the name of Ford Equipment Company,

depositing $200. She thereafter made no further deposits. x

month later, on July 15, she submitted a bid to the General Ser-

-10-

vices Administration in the amount of $10,529.00 for four

vehicles, which had previously been declared surplus property.

Having been awarded the bid, Ford presented a check for

$10,529.00 drawn on the recently established account. She or her

husband then sold the vehicles without, of course, honoring the

check.

Ford does not challenge the sufficiency of the evidence to

support her convictions under Count 3, theft of government prop-

erty, 24/ and Count 5, aiding and abetting 23/ She does, however,

challenge her conviction under Count 4 of the indictment, which

charges a violation of 18 U.S.C. § 1001. It states that Ford

"covered up a material fact to the General Services Administra-

tion ... by representing that a check of the value of

$10,529.00, for the purchase of four vehicles was covered by

sufficient funds” in the bank on which the check was drawn “when,

as she there knew, there was not sufficient funds in said account

to cover such an amount of money." The proof at trial showed

that Pord identified herself with her driver's license when she

presented the check, but did not advise the General Services

Administration that insufficient funds were on deposit to pay the

check.

24/ 18 U.S.C. § 641.

-ll-

25/ 18" S.C. § 2.

No evidence was adduced of any specific, affirmative repre-

sentation by Ford at the time she presented the check to the

Government. She argues, therefore, that, under the Supreme

Court's reasoning in Williams v. United States, 26/ there was

insufficient evidence to support the allegation in Count 4 and

that the jury should not have ruled on this charge. The Supreme

Court decision in Williams, however, concerned a conviction under

28 U.S.C. § 1014, not § 1001, the statute invoked here. Section

1014 makes it a crime to “knowingly make any false statement

for the purpose of influencing in any way the action of*

certain federal agencies. 27/ The Couct in Williams construed the

criminal statute strictly, stating that, “[a})lthough petitioner

deposited several checks that were not supported by sufficient

funds, that course of conduct did not involve the making of a

‘false statement,’ for a simple reason: technically speaking, a

check is not a factual assertion at all, and therefore cannot be

characterized as “true” or “false.” 28/

26/ 458 U.S. 279, 284-90, 102 S.Ct. 3088, 3091-95 (1982).

27/ 18 U.S.C. § 1014.

28/ 458 U.S. at 284, 102 S.Ct. at 3091.

fs,

The indictment in this case, however, does not allege a

"false statement.” Although § 1001 makes it a crime to make “any

false, fictitious or fraudulent statements,” the Government pur-

sued its case under another part of § 1001 that makes it a crime

to “knowingly and willfully . . . cover u ny trick, scheme

or device a material fact.” 18 U.S.C. § 1014, the statute inter-

preted in Williams, does not have a similar provision.

The Williams Court declined to hold that a check consti-

tutes, in effect, an implied representation to its receiver that

funds sufficient to cover the check are in the account because it

feared the “wider implications” of such a ruling. The Court

reasoned that such an interpretatiun of “false statement,” as

used in § 1014, would mean that:

any check, knowingly supported by insufficient

funds, deposited in a federally insured bank

could give tice to criminal liability, whether

fer had an inten 2 defraud.

Inder the Cc of Appea: the

violation of § 1014 18 not the schem > pass

number of bad checks; it is the presentation

false statement--that e

that at the moment of deposi :

sufficient funds--to a | Serally in ns rec

deed, eac dividual count o

e ‘indictment in this case stated only that

petitioner knowingly had deposited a single

check that was supported by insufficient

funds, no had engaged

29/ 458 U.S. at 286-87, 102 S.Ct. at 3092-93 (emphasis in

Original) (footnote omitted).

The Court's attention to “scheme” and “intent to defraud” in

this passage suggests that § 1001 covers just what § 1014, read

strictly, does not reach. In United States v. London, we stated

"that full effect must be given to the ‘trick, scheme, or device’

language of the first clause of § 1001," 30/ and addet. “The mere

omission of failing truthfully to disclose a material fact .

does not make out an offense under the conceal or cover up clause

of § 1001. Instead, the latter clause of § 1001 requires the

government to prove something more--that the material fact was

affirmatively concealed by ruse or artifice, by scheme or

device.” 3yY

30/ 550 F.2d 206, 213 (Sth Cir. 1977).

31/ Id. at 214 (footnote omitted).

The Government proved that requisite “something more” in

this case. Ford did not merely give the Government a check know-

ing there were not funds sufficient to cover the amount in the

account. She joined the other defendants in a scheme pursuant to

which bank accounts were opened in the names of companies that

existed only for the purpose of issuing checks, vehicles were

purchased with checks drawn on these company accounts, and the

defendants not only knew that the accounts had insufficient funds

but had the intent not to honor the checks. These actions con-

-14-

stitute a “trick, scheme, or device” to “cover up a material

fact” to a government agency. 32/ fhe conviction under Count 4 is,

therefore, affirmed.

32/ See id. at 213 & n. 6 (and cases discussed therein).

Ill.

Ford also complains of a variance between the proof adduced

at trial and the allegations under Count 5 of the indictment.

The indictment alleged theft of property of the United States,

Gescribed as a 1978 Dodge Pick-up vehicle having a of Vehicle

Identification Number "D14AE815227389." The evidence at trial

established that the vehicle taken was as described in the

indictment, except that the Identification Number of the pickup

was “D14AE8S227389." Thus, the only variance of which Ford com-

plains is the substitution of the numerals "15" in the charge for

the letter "S" shown at trial.

A mere variance in proof that does not affect the substan-

tial rights of the accused will not warrant setting aside a con-

vietion, 23/ If the allegation and proof “substantially corre-

spond,” the conviction is valid. 34/ Here the type of vehicle

described in the indictment was the same as proved by the evi-

dence, and the difference in the two numbers can hardly be con-

sidered significant. Ford had adequate notice that she was

charged with theft of the particular vehicle described. 3 as

stated in United States v. Cox, "The validity of an indictment is

governed by practical, not technical considerations. A convic-

tion will not be reversed because of minor deficiencies which

have not prejudiced the defendant." 36/ Accordingly, we also

affirm the conviction on Count 5.

37/ See. +g., United States v. Phillips, 625 * 24 543, 545-

(Sth Cir. 1980).

34/ Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629,

631, (1935) (quoting Washington & G.R. Co. v. Hickey,

33/ Is: at 62, 55 S.Ct. at 630; United States v. Davis, 592

-24 1325, 1328 (Sth Cir.), cert. denied, 442 U.S. 946,

99 S.Ct. 2894 (1979).

36/ 664 F.2d 257, 258 (llth Cir. 1981).

For these reasons, we AFFIRM the judgment of the court

below.

-16-

’ .

United States Court of Appeals

IN THE UNITED STATES COURT OF APPEALS FOR THE FirtH Circuit

IFTH CIR

FOR THE F CIRCUIT No. 86-1098

Summary Calendar

No. 86-1098 D.C. Docket No. CR-4-84-108

U.S. COURT OF APPEALS

: FI L E D 7 S OF RICA

UNITED STATES Of AMERICA, SEP 18 1986 UNITED STATES OF NE ’

Plaintiff-Appellee, Plaintiff-Appellee,

versus GILBERT. F. GANUCHEAU versus

” RK

LOIS E. HILTON FOPD, LOIS E. HILTON FORD,

Defendant-Appellant. Defendant~Appellant.

Appeal from the Uriced States District Court for the

No*thern District of Texas

Be fore RUBIN, JOHNSON, and JONES, Circuit Judyes.

Appeal from the United States District Court for the JUDGMENT

Northern District of Texas

@eecece @ ceeesccecocesecoco . This cause came on to be hneard on the record on appeal

and was taken under submission on the briefs on file.

ON PETITION FOR REHEARING

ON CONSIDERATION WHEREOF, It is now here ordered and

( September 18, 1986 ) adjudged by this Court that the judgment of the District Court in

this cause is affirmed.

Before RUBIN, JOHNSON and JONES, Circuit Judges.

PER CURIAM: August 22, 1986

IT IS ORDERED that the petition for rehearing filed in the

above entitled and numbered cause be and the same is hereby brite ISSUED AS MANDATE:

\ OE aS Gated Be

Append: C Ske pie ae

ENTERED FOR THE COURT: eat ho” BE OF The

L per dix OC

Unite rcuit Judge = P OP-JDT-9¢

’ RENG@=¢ ; Rev. 4/85

%. : %,

eM: ‘

& 8 088 Cer

IN THE UNITED STATES DISTRICT COURT “OPE ommmc o waas

FOR THE NORTHERN DISTRICT OF TEXAS FILE D

FORT WORTH DIVISION AUG 1 4 @E4

UNITED STATES OF AMERICA ~

vs. ad CRIMINAL wo PP 4 8 4

° 1 08

OWEN RAY HILTON e

LOIS E. HILTON FORD °

BILLIE RUTH VAN HUSS e

BARRY BAILEY HILTON °

The Grand Jury charges:

COUNT 1

Beginning prior to on or about April 10, 1981, and

continuously thereafter up to and including the date of the return

of this Indictment, in the Fort Worth Division of the Northern

District of Texas, and elsewhere, OWEN RAY HILTON, LOIS E. HILTON

FORD, BARRY BAILEY HILTON and BILLIE RUTH VAN HUSS, defendants and

co-conspirstors, unlawfully, wilfully and knowingly did agree,

combine, conspire and confederate with each other and with other

persons both known and unknown to the Grand Jury to commit

offenses against the United States, to wit: wilfully and knowingly

embezzle, steal and pur!ein goods and property of the United

States of the value of more than one hundred dollars, in violation

of Title 18, United States Code, Section 641, and wilfully and

knowingly cover up 4 mate: al fact to an agency and department of

the United States, in violation of Title 18, United States Code,

Section 1001.

Certified a true copy of gn instrusent

BOMERTY, Clam

on fale in my office on/avep so /T46

WANCY BALL DOMERTY, Clerk, U.S. Divivict

Pogen > F —— Northern a of aoe 0:

}

@ aa ‘i

MANNER AND MEANS

Among the manner and meane by which OWEN RAY HILTON, LOIS

E. HILTON FORD, BARRY BAILEY HILTON and BILLIE RUTH VAN HUSS would

carry out the conspiracy were the following:

1. It was further a part of the conspiracy that one or

more of the conspirators would set up a company to do business

under an assumed name.

2. It was further a part of the conspiracy that one of

the conspirators would open a bank account in the assumed name.

3. It was further a part of the conspiracy that one of

the conspirators would bid on vehicles offered for sale by the

General Services Administration of the United States, ( G.S.A.).

4. It was further a part of the conspiracy that upon

acceptance by the G.S.A. of the bid, one of the conspirators would

present a check for the bid amount to the G.S.A., said check

having been drawn on the aforesaid account, with knowledge that

there were insufficient funds on deposit in the account to pay the

check.

5. It was further a part of the conspiracy thet one or

more of the conspirators would go to the location of the bid upon

vehicles and take possession of the vehicles.

6. It was further a part of the conspiracy that one or

more of the conspirators would obtain quick title to the vehicles

from the State of Texas.

INDICTMENT - Page 2

| ae

¢ - e

7. It was further « part of the conspiracy that the

j © a. on

2. On or about April 15, 1981, OWEN RAY HILTON,

i ld then be offered for sale and sold by one or more of

irators in Texas and elsewhere.

— bids on Sale Number 7DPS-81-30 to the G.S.A., 819 Taylor Street,

8. It was further a part of the conspiracy that if

Fort Worth, Texas, in the amount of $3,441.00 for Item No. 244, a

ted by the G.S.A. in an effort to collect the dishonored

contacted by 1978 Chevrolet Sport Van, VIN CGL368U212350 and $3,401.00 for Item

e of the conspirators would make promises to G.S.A.

check, one P P pey Number 245, a 1978 Chevrolet Sport Van, VIN CGL368U210695.

° t was further a rt of the conspiracy that on so

9 3 pa P Y = 3. Om or about April 21, 1981, OWEN RAY HILTON,

ions, one of the conspirators would make rtial restitution

occasion P - defendant, presented to the G.S.A. Check Number 103, in the amount

bad check.

for the ba of $6,842.00, om Account Number 0803486, drawn on the American

10. It was further a part of the conspiracy that no ,

Bank, Palestine, Texas.

other payments would be made for the vehicles received from the ;

4. On or about April 22, i981, OWEN RAY HILTON and LOIS

G.S.A.

E. HILTON FORD, defendants, received the aforesaid vehicles in

ll. It was further a part of the conspiracy that the

Sale Number 7DPS-81-30, Item Numbers 244 and 245, in Houston,

aforesaid manner and means be repeated by one or more of the

Texas, and took them from the possession of the G.S.A.

conspirators with reference to other sales by the G.S.A.

5. On or about May 26, 1981, OWEN RAY HILTON and LOIS E.

OVERT ACTS

ess HILTON FORD, defendants, sent a check for $1,500.00, by United

In furtherance of the aforesaid conspiracy and to effect

States mail, to John Acker of the G.S.A., along with a false

the objects thereof, the conspirators did, in the Northern

District of Texas and elsewhere, commit the following overt acts:

statement by defendant OWEN RAY HILTON that he “had trouble with

these Vans. . .” but would “be able to get them fixed and floored

1. On or about ril 10, 1981, OWEN RAY °

Ap HILTON in a week or so,” when in truth and in fact he had, om April 29,

defendant. opened Account Number 0803486, in the name “Auto 1981, sold one of the vehicles, VIN CGL368U210695, to Anthony Ww.

Wholesale” at the American Bank, Palestine, Texas, with a deposit ,

Richards.

of $100.00. 6. On or about June 15, 1981, OWEN RAY HILTON and LOIS

E. HILTON FORD, defendants, sold the other vehicle, VIN

CGL368U212350, to Bill J. Lisenbee.

INDICTMENT - Page 3 INDICTMENT - Page 4

7. On or about June 17, 1981, LOIS E. HILTON FORD,

defendant, opened Account Number 110-379, at the Bank of the West,

Galveston, Texas, in the name Ford Equipment Company, with a ‘

deposit of $200.00.

8. On or about July 15, 1981, LOIS E. HILTON FORD,

defendant, under the name Ford Equipment Company, submitted bids

on Sale Number 7DPS-81-49, to the G.S.A., 819 Taylor Street, Fort

Worth, Texas, in the amount of $10,529.00 for: Item Number 129,

1978 Ford Carryall, VIN El2HHCG8342; Item Number 272, Honda

Trailbike, VIN CT9C-1511048; Item Number 275, 1978 vodge Pickup,

VIN D14AE85227389; and Item Number 301, 1977 Datsun 2802, VIN

HLS-30-377339.

9. On or about July 23, 1981, LOIS E. HILTON FORD,

defendant, presented to the G.S.A. Check Number 120, in the amount

of $10,529.00, on Account Number 110-379, drawn on the Bank of the

West, Galveston, Texas.

10. On or about July 23, 1981, LOIS E. HILTON FORD,

defendant, received the aforesaid vehicles from Sale ‘Number

7DPS-81-49, Item Numbers 129, 272, 275 and 301, and took them from

the custody of the G.S.A.

ll. On or about August 26, 1981, OWEN RAY HILTON and

LOIS E. HILTON FORD, defendants, sold the 1978 Dodge Pickup, VIN

D14AE85227389, to City Car Company, San Bernadino, California, for

at least $2,000.00.

INDICTMENT - Page 5 i

Cr,

~ ie ~

€ - - 4

12. On or about August 16, 1981, LOIS E. HILTON FORD and

BILLIE RUTH VAN HUSS, defendants, opened Account Number 435-570,

at the Citizens State Bank, Dickinson, Texas, in the name Royale

Leasing and Sales, with a deposit of $2,850.00.

13. On or about August 19, 1981, LOIS E. HILTON FORD,

defendant, eubmitted bids, under the name Royale Leasing and

Sales, on Sale Number 7DPS-81-53, to the G.S.A., 819 Taylor

Street, Fort Worth, Texas, in the amount of $12,957.00, for the

three vehicles.

14. On or about August 19, 1981, BILLIE RUTH VAN Huss,

defendant, under the name A to Z Sales, submitted bids on Sale

Number 7DPS-81-53 to the G.S.A., 819 Taylor Street, Fort Worth,

Texas, in the amount of $29,521.00, for ten vehicles, including:

Number 45, a 1979 Toyota Celica, VIN MA46015894; Number 87, a 1976

AMC Hornet, VIN A6057A0370908; Number 98, a 1977 AMC Hornet, VIN

A7A057C242373; and Number 108, a 1978 AMC Gremlin, VIN

A8A464G4 36633.

15. On or about August 31, 1981, BILLIE RUTH VAN HUSS

and OWEN RAY HILTON, defendants, opened Account Number 051-128 at

the Baybrook National Bank, Friendswood, Texas, in the name A & 2

Sales, with a deposit of $200.00.

INDICTMENT - Page 6

~ ; _

Cc. Se 4

16. On or about September 1, 1981, BILLIE RUTH VAN HUSS,

defendant, presented to G.S.A. Check Number 282, in the amount of

$29,521.00 on Account Number 051-128, drawn on the Baybrook

National Bank, Friendswood, Texas.

17. On or about September 5, 1981, BILLIE RUTH VAN HUSS,

OWEN RAY HILTON and BARRY BAILEY HILTON, defendants, received the

aforesaid vehicles from Sale Number 7DPS-81-53, Item Numbers 45,

67, 98 and 108, and took them from the custody of the G.S.A.

A violation of Title 18, United States Code, Section 371.

COUNT 2

On or about April 21, 1981, in the Northern District of

Texas, OWEN RAY HILTON, defendant, knowingly and wilfully, covered

up a material fact to the General Services Administration, a

Department of the United States, by representing that a check of

the value of $6,842.00, for the purchase of two vehicles, was

covered by sufficient funds on deposit in Account Number 0803486

at the American Bank, Palestine, Texas, when, as he then knew,

there was not sufficient funds in the Palestine, Texas, bank

account to cover such an amount of money.

A violation of Title 18, United States Code, Section 1001.

COUNT 3

On or about April 21, 1981, in the Northern District of

Texas, OWEN RAY HILTON and LOIS E. HILTON FORD, defendants,

wilfully and knowingly did embezzle, steal and purloin two 1978

Chevrolet Sport Van vehicles, one bearing Vehicle Identification

INDICTMENT - Page 7

~ on

c S- ©

Number CGL368U212350, and the other bearing Vehicle Idertificatior

Number CGL368U210695, each of the value of more thar one hundred

dollare of the goods and property of the United States.

A violation of Title 18, United States Code, Sections 641

and 2.

Count 4

On or about July 23, 1981, in the Northern District of

Texas, LOIS E£. HILTON FORD, defendant, knowingly and wilfully,

covered up a material fact to the General Services Adwinistratior,

a Department of the United States, by representing that a check of

the value of $10,529.00, for the purchase of four vehicles, was

covered by sufficient funds in Account Number 110-379, Bark of the

West, Galveston, Texas, when, as she then knew, there was not

sufficient funds in said account to cover such an amourt of forey.

A violation of Title 18, United States Code, Sectior 1001.

COUNT 5

On or about July 23, 1981, in the Northern District of

Texas, OWEN RAY HILTON and LOIS E. HILTON FORD, defendants,

wilfully and knowingly did embezzle, steal and purloin ore 1978

Dodge Pickup vehicle, bearing Vehicle Identification Number

D14AE815227389, of the value of more than one hundred dollars of

the goods and property of the United States.

A violation of Title 18, United States Code, Sections 641

and 2.

INDICTMENT - Page 8

COUNT 6

On cr about September 1, 1981, in the Northern District

of Texas, BILLIE RUTH VAN HUSS, defendant, knowingly and wilfully,

covered up a material fact to the General Services Administration,

a Department of the United States, by representing that a check,

of the value of $29,521.00, for the purchase of ten vehicles, was

ecoveres by sufficient funds in Account Number 051-128, Baybrook

National Bank, Friendswood, Texas, when, as she then knew, there

was not sufficient funds in said account to cover such an amount

of money.

A violation of Title 18, United States Code, Section 1001.

COUNT 7

On or about September 1, 1981, in the Northern District

of Texas, OWEN RAY HILTON, BARRY BAILEY HILTON and BILLIE RUTH VAN

HUSS, defendants, wilfully and knowingly did embezzle, steal and

purloin four vehicles, a 1978 Toyota Celica, Vehicle

Identification Number MA46015894; a 1976 AMC Hornet, Vehicle

Identification Number A6057A0370908: ea 1977 AMC Hornet, Vehicle

Number A7057C242373; and a 1978 AMC G:emlin, Vehicle

Identification Number A8A464G436633; each of the value of more

than one hundred dollars of the goods and property of the United

States.

INDICTMENT - Page 9

‘

~ . . o

c % Py

A violation of Title 18, United States Code, Sections 641

and 2.

A TRUE BILL.

pone LD Lie hath

ie ot

UNITED STATES ATTORNEY

NMhiehkal&

ASSISTANT UNITED states |arroriiey

310 U. S. Courthouse

Fort Worth, Texas 76102

Telephone: 817-334-3291

INDICTMENT ~- Page 10

3 Woven: |. mtacness S. Py. «+ Sees. > ~~

Q.° Bot you-eee the indivddualcdin«the courtroom today who handed

you that °check on the, JI believe the 23rd of September, 1981?

A. Wes, -uh-buh. -- : ’ a

Oo. Can you point that individual out to the jury?

A. Yes, it's the lady, the second lady right there in the red

blouse.

Q. All right. Wow -- okay. It's the lady in the -- would you

describe how she is dressed today?

A. Okay. She has a striped jacket on.

Q. Okay.

MR. WORLEY: Your Eonor, may the record reflect the

witnees has identified the defendant Lois Hilton Ford Parguhar?

THE COURT: All right. It s0 shows.

Y MR. WORLEY:

O. All right. Now, when the defendant handed you that check,

dic she say anything about the check that you recall?

A. -No, not thet...

Q. Would it -- would it have been something that you would

remember if the defendant had handed you a check and said, now,

this ig not any good, you're going to have to holc it for a

month or so.

A. Well, 4f she hac saia that, I wouldn't have eccepteu at.

% ‘ny wouldn't you have accepted a check that wasn't good?

*%. ell, it's just not policy to accept < bed check.

“. Oksy. I take it, then, you hed no knowledge that that check

os , CJ o 4, b - “ ‘ ty | = ; o

.. ee are e

CR 4-84-1068 - U. 8. District Court - 9/19/85

_hopen dog’ Ft

—_—_——-—

- mee ~—--

“+ Kap) 77 aie ae,

' Witness -Orloe * ~- +2. “ool. 35 °@3 *

- Vt 7

A. A womanscame in to give me:thisecheck-for some items that

she was high bid on on @ particular sale, and I accepted this

check as payment.

Oo All right. Did you put any notations on that check or make

any marks on that check?

A. Yee. On the back I put her driver's license.

Q. All right. And is that reflected on there where you put it?

A. Yes, uh-huh, it is.

. Okay. Can you teli the jury who handed you that check?

A. Okay. Yes.

® What was the name of the individual who gave you thet check?

A. Lois -- the one who signed it, or the one who gave it to me?

» The one who gave it to you.

A. Okey. Loie Ford.

All cight. And is she also the one that signed thet check?

ih. Yes, uh-huh.

‘. Okay. ae you identify her?

What dete did she give you that check?

he 7/23/01.

- And at whet locetion, ma'an?

i. In the sales office where I work, on the Gth floor.

‘%. And is that in the GSA building here --

. Yes, sir, in the federal builcing here in Port iortn.

*. Riaht, uh-huh.

cr AuOA TAM "7 Aint vctanat a+

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.