Petition for Writ of Certiorari — Gonzalez v. United States

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NO.

IN THE SUPREME COURT OF THE UNITED STATES

HOMERO GONZALEZ,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

Attorney of Record

BRENT E. NEWTON

Assistant Federal Public Defender

Attorneys for Petitioners

440 Louisiana, Suite 310

Houston, Texas 77002-1634

Telephone: (713) 718-4600

QUESTION PRESENTED

Petitioner, a Mexican citizen who does not speak English, was

represented by counsel at his federal drug-trafficking trial.

After appearing before a United States district judge at several

pretrial conferences, petitioner was brought before a United States

magistrate judge for jury selection. At a bench conference outside

of petitioner’s presence and before petitioner had the assistance

of an interpreter, defense counsel orally consented to the

magistrate judge’s presiding over the jury selection process.

Thereafter, the magistrate judge did not obtain petitioner’s

consent or even mention that his attorney had consented outside of

his presence. Based on the foregoing, the question presented is as

follows:

Is a federal criminal defendant’s counsel’s oral consent

to have a United States magistrate judge preside over

jury selection binding on the defendant when the record

does not reflect the defendant’s own knowing and

voluntary waiver of his constitutional right to have an

Article III judge preside over jury selection?

Several United States Courts of Appeals have addressed this issue

and have issued conflicting decisions.

PARTIES TO THE PROCEEDING

All parties to petitioner’s Fifth Circuit proceedings are

named in the caption of the case before this Court.

QUESTION PRESENTED ... +++ ee © © © © © © «©

PARTIES TO THE PROCEEDING . . . . «© «© «© «© «© © «© «@

TABLE OF CONTENTS ... +++ +e «c« © © © © © © @ @

TABLE OF CITATIONS ...++ «© © © © © © © © «@

PRAYER . 22sec ceccseceeceeveesee ee ee @

OPINIONS BELOW ...++++2e22 © © © © © © © 2

JURISDICTION .. «© ee cee ee ee eee 6 © © @

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE ... ++ +++ e ce © © «

BASIS OF FEDERAL JURISDICTION . ......+ +e.

REASONS FOR GRANTING THE WRIT . . . « «© «© «© © @ «

This Court should grant certiorari and resolve the

division among several circuit courts concerning whether

a federal criminal defendant must personally consent to

a United States magistrate judge’s presiding over jury

selection or whether consent from the defendant’s counsel

by itself is sufficient to satisfy Article

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APPENDIX A: Opinion of the Court of Appeals in

United States v. Gonzalez, 483 F.3d 390,

(5th Car. 2007) . . . . . . . . 7 . ° . . * : .

APPENDIX B: Judgment of the district court in

United States v. Gonzalez, No. 5:04CR1763-S-001

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APPENDIX C: Excerpt from jury selection transcript

iii

III’s

TABLE OF CITATIONS

CASES

Boykin v. Alabama, 395 U.S. 238,

89 S. Ct. 1709, 23 L.Ed. 2d 274 (1969) ....

Brookhart v. Janis, 384 U.S. 1 (1966) ......

Commodities Future Trading Comm'n v. Schor,

678 U.B. GBS (ASG) « ew we se ee eeee eee

Duncan v. Louisiana, 391 U.S. 145,

88 S. Ct. 1444, 20 L.Ed. 2d 491 (1968) ....

Glidden Co. v. Zdanok, 370 U.S. 530,

82 S. Ct. 1459, 8 L.Ed. 2d 671 (1962) ....

Gomez v. United States, 490 U.S. 858 (1989) ...

Government of the Virgin Islands v. Williams,

x @& Be g--. \ — RPP ee ee

Grosso v. United States, 390 U.S. 62,

88 S. Ct. 709, 19 L.Ed. 2d 906 (1968) .....

Harris v. Folk Construction Company,

136 F.3d 365 (Sth Cir. 1996) ... + ce © © @ w

Hormel v. Helvering, 312 U.S. 552,

61 S. Ct. 719, 85 L.Ed. 1037 (1941) ....

Johnson v. Zerbst, 304 U.S. 458 (1938) .....

NLRB v. A-Plus Roofing, 39 F.3d 1410

(9th Cir. 1994), :

133 F.3d 704 (9th Cir. 1998),

vacated on other grounds, 525 U.S. 801 (1998),

on remand, 165 F.3d 689 (9th Cir. 1999) ....

New York v. Hill, 528 U.S. 110 (2000) .....

Norris v. Schotten, 146 F.3d 314

a [Gei. BP ee sce ee eee eee ee 8

Northern Pipeline Constr. Co. v.

Marathon Pipe Line Co., 458 U.S. 50 (1982)

14,

TABLE OF CITATIONS - (Cont'd)

CASES - (Cont'd)

Patton v. United States, 281 U.S. 276 (1930),

overruled on other grounds,

Williams v. Florida, 399 U.S. 78 (1970) ...

Peretz v. United States, 501 U.S. 923 (1991) ;

United States v. Desir, 273 F.3d 39

(1st Cir. 2001) ee ° a os . . . ° ° . . . o oo -

United States v. Dobey, 751 F.2d 1140

(206m Cie. 1905) . ee eo cee es oe 6 6

United States v. Foster, 57 F.3d 727

(9th Cir. 1995) o . . ° ° ° o . ° o ° ° * ° oe

United States v. Frechette, 456 U.S. 1

(lst Cir. 2006) ° ° . . . . . . . . > ° . . .

United States v. Gamba, F.3d

2007 WL 1063147 (9th Cir. Apr. — 2007)

reh'g en banc denied, No. 06-35021

i. Oo 2. a eee ee ee ee ee ee ee

United States v. Gomez-Lepe, 207 F.3d 623

(oem Gabe Beemer sce ce oe ee eeoneses

United States v. Gonzalez, 483 F.3d 390

(5th Cir. 2007) . . . . . . . . . . iii, 1,

United States v. Jones, 938 F.2d 737

« OS ee ee ee ee ee

United States v. Maragh, 174 F.3d 1202

(llth Cir. 1999), supplemental op. on reh'g

189 F.3d 1315 (llth Cir. 1999) .......

United States v. Maragh, 189 F.3d 1315

[eae Gals SEED ete seseoenenvueseeveee

United States v. Muhammad, 165 F.3d 327

fem Gals BOeOPr ec ec eceoeceeeebebeee

United States v. Rivera-Sola, 713 F.2d 866

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. 14-15,

17,

TABLE OF CITATIONS - (Cont'd)

CASES - (Cont'd)

United States v. Woodard, 387 F.3d 1329

i ET SE a a ee a a a a a a a a ee

United States v. Young, 470 U.S. 1, 15, and n. 12,

105 S.Ct. 1038, and n. 12, 84 L.Ed. 2d 1 (1985) ...... 10

Valley Forge Christian College v.

Americans United for Separation of Church

and State, Inc., 454 U.S. 464,

102 S. Ct. 752, 70 L.Ed. 2d 700 (1982) ....4+24++2++2++2+e 10

Webster v. Doe, 486 U.S. 592,

108 S. Ct. 2047, 100 L.Ed. 2d 632 (1988) ....+.4++e«+-s. 10

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. III, sec. 1 ... i, iii, 2, 6-8, 12-15, 17-18

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PRAYER

Petitioner, Homero Gonzalez, prays that a writ of certiorari

issue to review the judgment entered by the United States Court of

Appeals for the Fifth Circuit in his case.

QPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fifth Circuit in petitioner’s case, which is reported at United

States v. Gonzalez, 483 F.3d 390 (5th Cir. 2007), is attached to

this petition as Appendix A. The judgment of the district court is

attached as Appendix B. The district court did not issue any

written opinion or order related to the issue raised in this

petition.

JURISDICTION

The judgment and opinion of the Court of Appeals was entered

on March 30, 2007. No petition for rehearing was filed. This

petition is filed within ninety days after entry of judgment by the

Court of Appeals. See Sup. Ct. R. 13.1. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The question presented implicates Article III, section 1, and

28 U.S.C. § 636(b) (3), which provide that:

The judicial Power of the United States shall be vested

in one supreme Court, and in such inferior Courts as the

Congress may from time to time ordain and establish. The

Judges, both of the supreme and inferior Courts, shall

hold their offices during good Behavior, and shall, at

stated Times, receive for their Services a Compensation,

which shall not be diminished during their Continuance in

Office.

U.S. Const. Art. III, sec. 1; and

A magistrate judge may be assigned such additional duties

as are not inconsistent with the Constitution and laws of

the United States.

28 U.S.C. § 636(b) (3).

STATEMENT OF THE CASE’

A. Proceedings Below

On December 7, 2004, a federal grand jury in Laredo, Texas,

returned a multi-count superseding indictment charging the

petitioner, Homero Gonzalez, and a co-defendant, Patrick

Leyendecker, with both conspiracy and substantive drug offenses

involving large quantities of marijuana. R. 32. Mr. Gonzalez

pleaded not guilty and the case proceeded to a jury trial on

January 24, 2005. R. 59. On January 26, 2005, the jury returned

a verdict of guilty on all counts. R. 76.

On April 27, 2005, the district court sentenced Mr. Gonzalez

to serve 190 months in the custody of the Federal Bureau of Prisons

to be followed by a five-year period of supervised release. R. 89.

The court waived a fine but imposed a $500 special assessment. Id.

On May 3, 2005, Mr. Gonzalez filed a timely notice of appeal. R.

99.

On March 30, 2007, the United States Court of Appeals for the

Fifth Circuit affirmed Mr. Gonzalez’s conviction. Appendix A. No

petition for rehearing was filed.

+ The record on appeal (“R.”) is cited by the pagination

appearing in the electronic record used by the Court of Appeals.

The presentence report (“PSR”) is cited by paragraph number.

B. Statement of the Facts

The facts of the offenses’ are not relevant to sole legal

issue raised on appeal. The only relevant facts concern the

pretrial procedural events related to jury selection.

At the time of trial, Homero Gonzalez was a 45-year old

Mexican citizen. See PSR @ 58. The record reflects that Mr.

Gonzalez did not speak English and required the assistance of an

official court interpreter (who interpreted the English proceedings

into Spanish). R. 152. After Mr. Gonzalez was indicted, there

were four pretrial conferences in this case, which occurred (in

sequential order) om November 19, 2004; December 14, 2004; December

17, 2004; and January 18, 2005. See R. 276-84 (Pretrial Conference

Transcript, November 19, 2004); R. 272-73 (Pretrial Conference

Transcript, December 14, 2004); R. 227-33 (Pretrial Conference

Transcript, December 17, 2004); R. 235-40 (Pretrial Conference

Transcript, January 18, 2005). United States District Judge George

P. Kazen presided over each of the four pretrial conferences.

At no point during any of the pretrial conferences did Mr.

Gonzalez consent to have a United States magistrate judge preside

over jury selection in his case. See id. The only mention of jury

selection came at the very end of the last pretrial conference,

when Judge Kazen stated that “we’re picking a jury” the following

Friday or Monday but made no reference to a magistrate judge

assisting in jury selection. R. 240.

2 See PSR @1 8-35 (discussing the prosecution’s evidence of

the offenses).

At the outset of the jury selection process, which occurred on

Friday, January 21, 2005, United States Magistrate Judge Adriana

Arce-Flores asked “the attorneys [to] approach the bench.” R. 151.

She then stated the following: “I need to ask the parties at this

time if they are going to consent to having th[is] United States

Magistrate Judge proceed in assisting in the jury selection of this

case.” Id, The prosecutor first responded, “Yes, we are, your

Honor.” Id. Mr. Gonzalez’s attorney, Oscar Pena, Sr., then

responded: “Yes, your Honor, we are.” Id. Magistrate Judge Arce-

Flores then stated, “The parties have agreed through consent that

this Court will be assisting through the process of jury

selection.” Id. at 151-52. Magistrate Judge Arce-Flores then

asked defense counsel “[i]s the defendant present,” to which

defense counsel responded, “[{hje is present, your Honor.” R. 152.

Magistrate Judge Arce-Flores next asked defense counsel whether Mr.

Gonzalez “need[s] the assistance of a[] [Spanish] interpreter,” to

which defense counsel responded, “[y]es he does, your Honor.” Id.

At no point did the magistrate judge ask Mr. Gonzalez whether he

had consented to the magistrate judge’s presiding over jury

selection or even mention the fact that his attorney had consented.

(The relevant excerpt from the voir dire proceedings is attached as

Appendix C.) Only defense counsel was asked to consent when he and

the prosecutor approached the bench - outside of Mr. Gonzalez’s

presence and before he had the services of a Spanish interpreter.

The record also does not contain any type of written consent

executed by Mr. Gonzalez.

The jury trial commenced on the morning of Monday, January 24,

2005, before a visiting district judge, the Honorable Adrian

Duplantier. See R. 59. On January 26, 2005, the jury convicted

Mr. Gonzalez. R. 76.

For the first time on appeal, Mr. Gonzalez (represented by new

counsel) contended that the magistrate judge’s presiding over jury

selection was improper because the record did not reflect Mr.

Gonzalez’s knowing and voluntary consent to such. See C.A. Brief

of Appellant, at 6-11. The Fifth Circuit rejected this claim and

held that the fact that defense counsel had consented to the

magistrate judge’s presiding over jury selection was legally

sufficient even though the record did not reflect Mr. Gonzalez’s

own personal, knowing consent:

Gonzalez relies heavily on the Eleventh Circuit

decision in United States v. Maragh, 174 F.3d 1202 (11th

Cir.1999), which presented a factual scenario similar to

this case. . . . The Eleventh Circuit appears to be alone

in having reached the conclusion that the defendant's

personal consent is required for the delegation of jury

selection to be constitutionally valid. Given the

unsettled state of the law, .. . it is difficult to see

how Gonzalez could demonstrate that the delegation of

jury selection [without his personal consent] constituted

a plain error. Even if, however, we were to review under

a less stringent standard, [Gonzalez is not entitled to

relief]. No court other than the Maragh panel of the

Eleventh Circuit has reached the outcome Gonzalez

proposes, and the debate among the other circuits appears

to turn on whether affirmative consent is required at

all, not on what form this consent must take.

Although certain rights are so fundamental that they

must be waived personally by the defendant, Gonzalez

provides no support for his contention that the right to

have an Article III judge conduct voir dire is among

them. What suffices for waiver depends on the nature of

the right at issue. ([W]jhether the defendant must

participate personaily in the waiver; whether certain

procedures are required for waiver; and whether the

defendant's choice must be particularly informed or

voluntary, all depend on the right at stake. [Citations

and internal quotation marks omitted.] As the Government

points out, the defendant does not, by waiving his right

to have an Article III judge conduct voir dire, waive his

right to judicial review of those proceedings. [Citations

omitted.] The nature of the right given up is therefore

limited, particularly as compared to the other rights

that we have held may be waived via counsel. In sum,

there is no error here; the right to have an Article III

judge conduct voir dire is one that may be waived through

the consent of counsel.

Gonzalez, 483 F.3d at 393-94.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari and resolve the

division among several circuit courts concerning whether

a federal criminal defendant must personally consent to

a United States magistrate judge’s presiding over jury

selection or whether consent from the defendant’s counsel

by itself is sufficient to satisfy Article III’s

requirements.

For the reasons discussed below, petitioner’s case presents an

excellent vehicle for this Court to decide an important, recurring

statutory and constitutional issue in federal criminal practice

with wider implications for myriad federal cases, criminal and

Civil alike. The Fifth Circuit’s decision in petitioner’s case not

only directly conflicts with decisions of at least one other United

States Court of Appeals but also is in tension with decisions of

this Court. Certiorari should be granted.

I. Threshold Issue: Does the Plain Error Standard Apply?

A threshold issue in this case, which also has divided the

circuit courts, is whether the plain error standard of Federal Rule

of Criminal Procedure 52(b) applies. Petitioner did not object to

the magistrate judge’s presiding over jury selection in the

district court. The Fifth Circuit concluded that, because

petitioner for the first time on appeal raised the issue of whether

his personal consent was required for a valid delegation of jury

selection to the magistrate judge, the claim was subject to the

plain error standard. See Gonzalez, 483 F.3d at 394. According to

the Fifth Circuit, “(t]his appears to be the practice in the other

circuits that have considered this type of claim.” Id. (citing

decisions of the First, Seventh, and Eleventh Circuits). Although

the cited decisions of the First and Seventh Circuit so hold,’* the

Eleventh Circuit decision cited by the Fifth Circuit in fact

explicitly held that the plain error standard is not applicable to

this type of claim raised for the first time on appeal. See United

States v. Maragh, 189 F.3d 1315, 1316-17 (llth Cir. 1999)

(supplemental opinion on rehearing).‘ In support of its position,

the Eleventh Circuit cited with approval both this Court’s majority

opinion (which never invoked the plain error’ standard

notwithstanding a lack of objection in the district court in that

case) and Justice Scalia’s dissenting opinion in Peretz v. United

States, 501 U.S. 923 (1991). See Maragh, 189 F.3d at 1316-17.°

> See United States v. Jones, 938 F.2d 737, 744 (7th Cir.

1991); United States v. Rivera-Sola, 713 F.2d 866, 874 (lst Cir.

1983).

‘ In both his reply brief and at oral argument in front of the

Fifth Circuit, petitioner cited the Eleventh Circuit’s opinion on

rehearing in Maragh for the proposition that the plain error

standard was inapplicable in petitioner’s case. See C.A. Reply

Brief for Appellant, at 4n.2. He alternatively contended that he

was entitled to relief even under the plain error standard. See

id. at 4.

° As Justice Scalia stated:

As a general matter, of course, a litigant must raise all

issues and objections at trial. . . . For criminal

proceedings in the federal courts, this principle is

embodied in Federal Rule of Criminal Procedure 51l, which

requires “a party, at the time the ruling or order of the

[trial] court is made or sought, [to] mak[e] known to the

court the action which that party desires the court to

take or that party's objection to the action of the court

and the grounds therefor.” Rule 51's command is not,

however, absolute. .. . [PJetitioner plainly forfeited

the right to advance his current challenges to the

Magistrate’s role. In certain narrow contexts, however,

appellate courts have discretion to overlook a trial

forfeiture. The most important of these is described in

Federal Rule of Criminal Procedure 52(b): In criminal

cases, an appellate court may notice “errors or defects”

not brought to the attention of the trial court if they

are “plain” and “affec[t] substantial rights.” See United

States v. Young, 470 U.S. 1, 15, and n. 12, 105 S.Ct.

1038, 1046, and n. 12, 84 L.Ed.2d 1 (1985)... .

Even when an error is not “plain,” this Court has in

extraordinary circumstances exercised ciscretion to

consider claims forfeited below. See, e.g., Glidden Co.

v. Zdanok, 370 U.S. 530, 535-536, 82 S.Ct. 1459, 1464-

1465, 8 L.Ed.2d 671 (1962) (opinion of Harlan, J.);

Grosso v. United States, 390 U.S. 62, 71-72, 88 S.Ct.

709, 715, 19 L.Ed.2d 906 (1968); Hormel v, Helvering, 312

U.S. 552, 556-560, 61 S.Ct. 719, 721-723, 85 L.Ed. 1037

(1941). In my view, that course is appropriate here.

Petitioner’s principal claims are that the Federal

Magistrates Act does not allow a district court to assign

felony voir dire to a magistrate even with the

defendant's consent, and that in any event the consent

here was ineffective because given orally by counsel and

not in writing by the defendant. By definition, these

claims can be advanced only by a litigant who will, if

ordinary rules are applied, be deemed to have forfeited

them: A defendant who objects will not be assigned to the

magistrate at all. Thus, if we invariably dismissed

claims of this nature on the ground of forfeiture,

district courts would never know whether the Act

authorizes them, with the defendant’s consent, to refer

felony voir dire to a magistrate, and, if so, what form

the consent must take. Cf, 18 U.S.C. § 3401(b)

(defendant's consent to magistrate in misdemeanor trial

must be in writing).

Given the impediments to the proper assertion of these

claims, I believe we are justified in reaching the

statutory issue today to guide the district courts in the

future performance of their duties. It is not that we

must address the claims because all legal questions

require judicial answers, cf,

College v, Americans United for Separation of Church and

State, Inc., 454 U.S. 464, 489, 102 S.Ct. 752, 767, 70

L.Ed.2d 700 (1982); Webster v. Doe, 486 U.S. 592, 612-

613, 108 S.Ct. 2047, 2058-2059, 100 L.Ed.2d 632 (1988)

(SCALIA, J., dissenting), but simply that the relevant

rules and statutes governing forfeiture, as we have long

construed them, recognize a limited discretion which it

Justice Scalia’s dissenting opinion - which agreed with the

majority’s decision to reach the merits of the issue despite the

lack of objection in the district court - contended that the plain

error standard is inapplicable when a litigant’s claim “can be

advanced only by a litigant who will, if ordinary rules are

applied, be deemed to have forfeited them: A defendant who objects

will not be assigned the magistrate at all. Thus, if we invariably

dismissed claims of this nature on the ground of forfeiture,

district courts would never know whether the [Federal Magistrates]

Act authorizes them, with the defendant’s consent, to refer felony

voir dire to a magistrate and, if so, what form the consent must

take. ” Peretz, 501 U.S. at 954-55 (Scalia, J., dissenting).

In petitioner’s case, the very nature of his claim - i.e.,

that a defendant must personally consent in a knowing and voluntary

manner to delegation of jury selection to 4 magistrate judge and

that defense counsel’s consent is not by itself sufficient -

presupposes no objection in the district court. For that reason,

this Court should refuse to apply the plain error standard and

exercise this Court’s discretion to address the merits of

petitioner’s claim (which the Fifth Circuit did in the alternative,

see Gonzalez, 483 F.3d at 394).

is eminently sensible to exercise here.

Peretz, 501 U.S. at 953-55 (Scalia, J., dissenting).

In 1991, in Peretz, this Court held that, with a federal

criminal defendant’s consent, a district court does not violate the

defendant’s constitutional right to an Article III judge or the

Federal Magistrates Act, 28 U.S.C.§ 636,° then it delegated jury

selection to a magistrate judge. Peretz, 501 U.S. at 933-36.

Previously, in Gomez v. United States, 490 U.S. 858 (1989), this

Court had interpreted § 636(b) (3) to require a defendant’s consent

to delegation of jury selection in a federal felony case to a

magistrate judge; this Court interpreted the statute in this manner

to avoid the serious constitutional question that would arise if a

non-Article III judge were to preside over such a critical stage of

trial without the defendant’s consent. See id. at 864.

As the Fifth Circuit recognized in petitioner’s case, since

Peretz, the federal circuit courts have issued conflicting

decisions about whether consent from a defendant to delegation of

jury selection to a magistrate judge must be personally given by

the defendant himself in order to be valid or, instead, whether

defense counsel’s consent by itself is sufficient (without an

§ 28 U.S.C. § 636, the Federal Magistrates Act, governs the

types of proceedings in federal civil and criminal cases over which

a United States magistrate judge can preside. In addition to the

many specific duties that the statute permits a district court to

delegate to a magistrate judge (with jury selection in a federal

felony criminal case not included among them), § 636(b) (3) provides

that: “A magistrate judge may be assigned such additional duties as

are not inconsistent with the Constitution and laws of the United

States. 28 U.S.C. § 636(b) (3).

indication in the record that the defendant explicitly agreed or at

least knowingly and voluntarily acquiesced in counsel’s consent).

See Gonzalez, 483 F.3d at 393-94 (citing decisions of the First,

Seventh, and Eleventh Circuits). As the Fifth Circuit noted, the

Eleventh Circuit has required “the defendant’s personal consent,”’

while the First Circuit has held that a lack of objection from the

defendant constitutes a “waiver” of a defendant’s right to have an

Article III judge preside over jury selectioun.® The Seventh

Circuit has held that it is not “plain error” for a magistrate

judge to preside over jury selection in a federal felony case when

the defendant does not object and, thus, has not held that a

defendant’s personal consent is required even in the sbeence of a

contemporaneous objection from a defendant or defense counsel.’

The Fifth Circuit held that a federal defendant’s attorney is

authorized to consent on behalf of a defendant (whether the

” See United States v. Maragh, 174 F.3d 1202 (11th Cir.),

Supplemental op, on reh’g, 189 F.3d 1315 (11th Cir. 1999); see also

United States v. Woodard, 387 F.3d 1329, 1332 (llth Cir. 2004)

(reaffirming Maragh).

® United States v. Desir, 273 F.3d 39, 44 (lst Cir. 2001). In

a civil case, the Eighth Circuit issued a decision directly in

conflict with the First Circuit’s decision in Desir. See Harris v.

, 138 F.3d 365, 368-71 (8th Cir. 1998)

(rejecting appellee’s “waiver” argument and stating that “we

conclude that, absent clear and unambiguous consent of the affected

parties, a district court may not delegate, pursuant to §

636(b) (3), [jury selection]” to a magistrate judge). Notably, both

the First and Eighth Circuit cited this Court’s decision in Peretz

in support of their respective positions. See Desir, 273 F.3d at

44 (citing Peretz); Harris, 138 F.3d at 369-370 & n.8 (citing

Peretz).

° United States v. Jones, 938 F.2d 737, 744 (7th Cir. 1991).

defendant is even aware of counsel’s actions) and that the record

need not reflect the defendant’s “personal” consent. Gonzalez, 483

F.3d at 394.*° The Fifth Circuit specifically declined to adopt the

position of the Eleventh Circuit in Maragh. See id.

While not directly addressing the issue of whether counsel may

waive a litigant’s right to an Article III judge, the Sixth and

Tenth Circuits have held that a litigant’s waiver of that right

must be “voluntary, knowing, and intelligent.” Norris v. Schotten,

146 F.3d 314, 326 (6th Cir. 1998) (citing, e.g., Johnson v. Zerbst,

304 U.S. 458, 464 (1938)); United States v. Dobey, 751 F.2d 1140,

1141-43 (10th Cir. 1985). Certainly, it would appear that, under

this precedent, a represented litigant at least must be aware of

his attorney’s consent. The record in the instant case, as

discussed above, does not reflect Mr. Gonzalez’s knowledge of his

attorney’s consent.

Since the time that the Fifth Circuit issued its decision in

petitioner’s case, the Ninth Circuit, in a two-to-one decision,

addressed a closely related question and held that a defendant’s

personal consent is not required for a magistrate judge to preside

over closing arguments and that defense counsel’s consent by itself

is c.ufficient under Peretz and Gomez. See United States v. Gamba,

___—*F.3d ___, - 2007 WL 1063147 (9th Cir. Apr. 11, 2007), reh’gq en

*° Accord United States v. Muhammad, 165 F.3d 327, 331-33 (Sth

Cir. 1999) (holding that a civil litigant’s attorney is authorized

to consent to a magistrate judge to enter judgment in a civil case

pursuant to 28 U.S.C. § 636(c), and that the civil defendant

himself need not “personally” consent).

14 .

banc denied, No. 06-35021 (9th Cir. May 22, 2007); see also id. at

*8 (Fisher, J., dissenting) (contending that a federal criminal

defendant’s personal consent is required) (citing the Eleventh

Circuit’s decision in Maragh).

The Eleventh Circuit in Maragh and the dissenting judge in

Gamba were correct. For that reason, the Fifth Circuit erred in

affirming Mr. Gonzalez’s conviction, as the record does not reflect

Mr. Gonzalez’s knowing and voluntary personal consent to have a

non-Article III judge preside over jury selection. As Ninth

Circuit Judge Fisher recently explained:

- « « [L])ike the Eleventh Circuit in Maragh, I read

the Supreme Court as requiring some evidence that the

defendant has personally and knowingly agreed to the

substitution of a magistrate judge for an Article III

judge [during a critical stage] - evidence that is

lacking here.

made clear that “the litigants’ consent makes

the crucial difference” when “constru[ing] the additional

duties clause to include responsibilities of far greater

importance than the specified duties assigned to

magistrates.” Peretz, 501 U.S. at 933, 111 S.Ct. 2661.

In doing so, the Court noted that the defendant's due

process right to have an Article III judge preside over

the critical stages of his felony trial is an underlying

concern when interpreting the “additional duties”

The Ninth Circuit’s decision in Gamba appears to conflict

with the Ninth Circuit’s earlier decisions in pS a7 Pr

Gomez-Lepe, 207 F.3d 623, 631 (9th Cir. 2000) (“({Wle hold...

that the magistrate judge should not have a Bs without the

defendant’s affirmative consent. .. . Nothing in the record

indicates, nor does the government maintain, that Gomez-Lepe

consented to the magistrate judge’s actions. . . . [B]ecause Gomez-

Lepe did not affirmatively consent, we conclude that the magistrate

judge exceeded his authority.”), and United States v. Foster, 57

F.3d 727, 731 & n.1 (9th Cir. 1995) (citing NLRB v. A-Plus Roofing,

39 F.3d 1410 (9th Cir. 1994), reh’g en banc on other grounds, 133

F.3d 704 (9th Cir. 1998), vacated on other grounds, 525 U.S. 801

(1998), on remand, 165 F.3d 689 (9th Cir. 1999).

provision of the [Federal Magistrates Act]. See id. at

932-33, 111 S.Ct. 2661. Congress specifically limited

assignments to “such additional duties as are not

inconsistent with the Constitution and laws of the United

States.” 28 U.S.C. § 636(b) (3) In interpreting the FMA,

therefore, it is “settled policy to avoid an

interpretation . . . that engenders constitutional

issues.” Peretz, 501 U.S. at 929, 111 S.Ct. 2661 (quoting

Gomez, 490 U.S. at 864, 109 S.Ct. 2237). This framework

controls our assessment of whether the “crucial” element

of defendant’s consent to the magistrate judge’s

jurisdiction has been established.

Whatever ambiguity may exist in Peretz, the Supreme

Court has never endorsed the legitimizing force of

consent to a magistrate judge’s jurisdiction on a record

so devoid of any indication that the defendant himself

understood and knowingly waived his right to have a

“person with jurisdiction to preside” over all critical

stages of his felony trial. Gomez, 490 U.S. at 876, 109

S.Ct. 2237. Im Peretz, the Court noted that “both

petitioner and his counsel” attended the pre-trial

conference at which the counsel consented to the

magistrate judge's jurisdiction and that the magistrate

judge thereafter specifically asked counsel whether she

had the “clients’ consent to proceed with the jury

selection.” 501 U.S. at 925, 111 S.Ct. 2661 (emphasis

added). The Court did not specify whether’ the

petitioner’s presence and failure to object were

necessary components of his consent, but the Eleventh

Circuit has understood them as such. See Maragh, 174 F.3d

at 1206. Maragh noted that “[i]n Peretz, the specific

consent that the Supreme Court approved consisted of (a)

trial counsel’s agreement to the procedure, (b) trial

counsel’s representation that the client was aware of and

agreed to the procedure, and (c) the lack of any

objection from the defendant in the district court.” Id.

Maragh is buttressed by Peretz’s suggestion that the

defendant, not just his attorney, must agree to a

magistrate judge: “‘If a criminal defendant, together

with his attorney, believes that the presence of a judge

best serves his interests during the selection of the

jury, then Gomez preserves his right to object to the use

of a magistrate.’” Peretz, 501 U.S. at 935, 111 S.Ct.

2661 (quoting Government of the Virgin Islands v.

Williams, 892 F.2d 305, 311 (3d Cir.1989)) (emphasis

added). Here, neither the district judge nor magistrate

judge asked for or received consent in the presence of

the defendant. ...

Gamba, 2007 WL 1063147, at *8-*10 (Fisher, J., dissenting)

(emphasis in original).

Besides the foregoing language in Peretz and Gomez cited by

Judge Fisher, this Court’s decision in Commodities Future Trading

Comm’n v. Schor, 478 U.S. 833 (1986), strongly suggests a

litigant’s consent to have a non-Article III judge preside over a

critical stage of his trial must be “personal.” In §Schor, this

Court described the constitutional right to an Article III judge as

“a personal right.” Id. at 848. How, one may fairly ask, can a

litigant’s attorney waive a litigant’s “personal” constitutional

right when the litigant is not even aware of the attorney’s waiver?

Although this Court has stated that a criminal defendant need

not “personally make an informed waiver” of most rights related to

the conduct of a trial (e.g., evidentiary objections) and that an

attorney may waive such rights without the defendant’s knowledge or

participation in the waiver, New York v. Hill, 528 U.S. 110, 114-15

(2000), “{fjor certain fundamental rights, the defendant must

personally make an informed waiver.” Id. at 114 (emphasis

added) (citing, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-465

(1938) (right to counsel); Brookhart v. Janis, 384 U.S. 1, 7-8

(1966) (right to plead not guilty)). Ome of those fundamental

rights is the right to a jury trial. Patton v. United States, 281

U.S. 276, 312 (1930), overruled on other grounds, Williams v.

Florida, 399 U.S. 78, 90 (1970). The waiver of such a fundamental

right must constitute “the express and intelligent consent of the

defendant [to proceed without a jury].” Patton, 281 U.S. at 312;

accord United States v. Frechette, 456 U.S. 1, 9 (lst Cir. 2006).

Similarly, there must be “express and intelligent consent” from a

criminal defendant himself for a non-Article III judge to preside

over a critical stage of trial.

Notably, in discussing the waiver of the constitutional right

to an Article III judge, this Court has spoken of the right in a

manner that equates it to the most “fundamental” rights of a

criminal defendant. See Schor, 478 U.S. at 848 (“Moreover, as a

personal right, Article III’s guarantee of an impartial and

independent federal adjudication is subject to waiver, just as are

other personal constitutional rights that dictate the procedures by

which . . . criminal matters must be tried. See, e.g., Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (waiver

of criminal trial by guilty plea); Duncan v. Louisiana, 391 U.S.

145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968) (waiver of

right to trial by jury in criminal case).”).™

In conclusion, “[g]iven the unsettled state of the [case] law

interpreting Peretz,” Gonzalez, 483 F.3d at 394, this Court should

grant certiorari and address this important issue. The specific

issue raised by petitioner’s case (which concerns a federal

criminal defendant’s consent to a magistrate judge’s presiding over

jury selection) has broader implications for all federal criminal

cases, civil and criminal alike, insofar as 28 U.S.C. § 636(b) (3)

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

458 U.S. 50, 60 (1982) (describing Article III’s creation of an

independent judiciary as a “fundamental principle”).

applies to many potential contexts. See, e.g., Gamba, 2007 WL

1063147 (addressing the consent issue in the context of a

magistrate judge’s presiding over closing arguments in a federal

criminal case); Harris, 138 F.3d at 371 (addressing the consent

issue in the context of a magistrate’s presiding over jury

selection in a federal civil case). For all these reasons,

certiorari should be granted.

CONCLUSION

For the foregoing reasons, petitioner, Homero Gonzalez, prays

that this Court grant certiorari to review the judgment of the

Fifth Circuit in his case.

Date: Respectfully submitted,

May 24, 2007