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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1034

## Text

EDITOR'S NOTE

THE FOLIOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FIIMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.

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?

ii

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

iv

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.

(c) A magistrate who exercises trial jurisdiction under
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

4
(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
I.

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

18

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

ll

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.

12

Respectfully submitted;

Jf

ston, lst Floor
Fort Worth, TX 76102-2007
(817) 870-1544
State Bar No. 0344380¢

ff

Attorney for Petitioner

13

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,

me
t

Defendant-Appellant.

Appeal fron the United States District Court fo
Northern District of Texas

"
7
o

(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,

wy

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.

I
-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

oa
.
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

"4
w
w
"
a

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.

i!

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-$-

~Y

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

Py

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.
(C) the magistrate shall file his proposed

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-

hy

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.
IV

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,

ey

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-

sy

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-

n,

™

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

-
ws

Od
’
ww
w
‘
”
)
'

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/

Id

- et 159.

72

3 F.2d 866 (lst Cir.

fe

United States v. River2aSol2,— uohelid

over voir dire, jury selectico-

because the defendant

ed, “We think that

1968S) (per curian).

1983).

@-2l-

7
- e
failed to obiec

@ magistrate

Interestingly,

~~

_-

4

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.

54

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-

La

et.

e

Lacking evidence + @¢Ctual prejudice, the court a

wn
wr
.

’

}
&
o

’
d

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

wy

“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).

I.
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

0

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.

ey

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

wy

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

a

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

~s

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

Sy

%

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
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

© 13 -

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
a
~—_

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

© 28 «

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

OA

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 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-

’ .
6
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

wy

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:

1

}

@ 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
vehicles wou defendant, unde. the name ©. R. Hilton, Auto Wholesal«, submitted

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

© ar rac c
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

_

m,

~ 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

m,

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

‘
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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

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

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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.
©. Port Worth, Tarrant County, Texas?

*. Riaht, uh-huh.

cr AuOA TAM "7 Aint vctanat a+

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1449%3A2. Public record. Not legal advice.