Reply Brief — Gonzalez v. United States

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NO. 06-11612

IN THE SUPREME COURT OF THE UNITED STATES

HOMERO GONZALEZ,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITIONER’S REPLY TO THE BRIEF

FOR T ITED STATES IN OP ITION

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

BRENT E. NEWTON

Assistant Federal Public Defender

Attorneys for Petitioner

440 Louisiana, Suite 310

Houston, Texas 77002-1634

Telephone: (713) 718-4600

TABLE OF

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Reply to Brief for the United States in Opposition

I. The United States

No Support In The Recu-rd.

II. The Legal Issue In Petitioner’s Case Is Worthy

Of This Court’s Review.

CONCLUSION ... +++ ee © @ »«

ENT

Makes

Two Significant

Factual Representations In Its Brief That Have

T F_ CITATION

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,

476 U.S. GSS CABG) « ew we oe ec eeeeeve e

Cross v. United States, 325 F.2d 629

(D.C. Cir. 1963) . . . * . 7 . * . . . . >

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) ...

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

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

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

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

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

Levine v. United States, 362 U.S. 610 (1960)

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

Norris v. Schotten, 146 F.3d 314

(6th G2. 1998) 7 . . . . : . . . . . . .

Northern Pipeline Constr. Co. v.

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

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)

TABLE OF CITATIONS - (Cont’d.)

CASES - (Cont’d.)

Saldana v. United States, 206 Fed. —* x 843

(ith Cis. 2006) «. © © es © wo o » se eee

Segurola v. United States, 275 U.S. 106 (1927)

Taylor v. Illinois, 484 U.S. 400 (1988) ....

United States v. Desir, 257 F.3d 1233

(1lith Cir. 2001) . . © . . 7 o 7 7 7 . . 7 a

United States v. Gagnon, 470 U.S. 522 (1985).

United States v. Gamba, 483 F.3d 942

(9th Giz. 2007) . . + . a - 7 7 . 7 . . . . .

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

(llth Cir.), suppl. op. on reh’g,

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

United States v. Ruiz-Rodriguez, 277 F.3d 1281

330 Gas. BOGep cc oe eee er ee ee 8

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

(11th i fe 2004) . . _ 7 . = .* . . —_ .* . >. .

United States v. Young, 470 U.S. l,

105 S. Ct. 1038, 84 L.Ed.2d 1 (1985) ....

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) ....

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

108 S. Ct. 2047, 100 L.Ed.2d 632 (1988) ...

CONSTITUTIONAL PROVISION

U.S. Comet. aft. Ili « eo we se eevee ee vee

Dele Gas GE. Be 6 © 6 © © 6 6 8 66 6 CU

TABLE OF CITATION

18 U.S.C. § 3401 (b)

Fed.

R. Crim. P. 43.

R. Crim. P. 51.

R. Crim. P. 52 (b)

(Cont’d.)

STATUTES AND RULES

REPLY TO BRIEF FOR THE UNITED STATES IN OPPOSITION

Petitioner, Homero Gonzalez, submits this reply to the Brief

in Opposition (“BIO”) filed by the United States.

This United States Makes Two Significant Factual

Representations In Its Brief That Have No Support In The

Record.

In its brief, the United States makes two significant factual

representations that have absolutely no support in the record and,

indeed, are contradicted by the record. First, the United States

asserts that petitioner was “present” during the “exchange” between

the United States magistrate judge and counsel for the parties at

the bench conference at the outset of the voir dire proceedings.

See BIO, at 3; see also BIO, at 15 (“Petitioner’s counsel, in

petitioner’s presence, expressly agreed to have the magistrate

judge preside over jury selection.”). The court reporter’s

transcription of the voir dire proceedings, which is attached as

Appendix C to the petition for certiorari, clearly shows that

petitioner was not at the bench during the exchange’ and,

furthermore, did not have the services of a Spanish-speaking

interpreter at the time of the exchange. R. 151-52. The record

also demonstrates that thereafter - when the attorneys stepped away

1 The record shows that at the very outset of the proceedings

the magistrate judge asked “the attorneys [to] approach the bench.”

R. 151 (emphasis added).

from the bench and petitioner was then afforded the assistance of

an interpreter - the magistrate judge neither asked petitioner

whether he also consented nor informed him that his attorney had

done so outside of his presence. See id.

The United States’s brief contains another factual error. In

contending that Mr. Gonzalez’s defense counsel consented to the

magistrate judge’s presiding over jury selection on behalf of his

client, the United States points to the statement made by counsel

in response to a question from the magistrate judge at the bench -

“we are [going to consent],” R. 151 (emphasis added) - and claims

that this statement is tantamount to the statement made by defense

counsel in Peretz v. United States, 501 U.S. 923 (1991). See BIO,

at 12-13. In Peretz, defense counsel was specifically asked by the

magistrate judge whether counsel had his client’s consent to have

the magistrate judge select the jury, to which defense counsel

responded affirmatively (in the presence of his client). Peretz,

501 U.S. at 925 & n.2.

The United States is incorrect that Mr. Gonzalez’s defense

counsel’s use of the plural pronoun “we” expressly or impliedly

referred to both counsel and his client, Mr. Gonzalez. Rather,

when read in context, it is clear that the term “we” referred to

the attorneys (i.e., defense counsel and the prosecutor). Indeed,

the prosecutor - before defense counsel stated, “[y]es, we are

{[consenting]” - also stated, “[y]les, we are [consenting], your

Honor” in response to the magistrate judge’s question. R. 151

(emphasis added). In addition, Mr. Gonzalez was represented by two

defense attorneys, both of whom were present at the bench

conference, id., which also could explain counsel’s use of the

plural pronoun. Therefore, the United States’s assertion that

defense counsel’s use of the term “we” demonstrates that he had

obtained his client’s personal consent is not supported by the

record. And, for that reason, both the United States and the Fifth

Circuit have erred in claiming that petitioner’s case presents a

“fact pattern” that is “almost identical” to that in Peretz. See

BIO, at 5 (quoting from the Fifth Circuit’s decision in

petitioner’s case). Rather, petitioner’s case is distinguishable

in a critically important way: unlike in Peretz, the record in

petitioner’s case unequivocally shows that defense counsel

consented outside of petitioner’s presence and did not inform the

court that his client’s consent (as opposed to the attorney’s

consent) was being given.

Il.

The Legal Issue In Petitioner’s Case Is Worthy Of This

Court’s Review.

The United States makes two arguments why certiorari should

not be granted in petitioner’s case: (1) the circuit split on the

legal issue raised in petitioner’s case is not significant enough;

and (2) petitioner’s case allegedly isa “poor vehicle” to decide

the issue because petitioner failed to object in the district

court. See BIO, at 6-16. Neither argument has merit.

First, although the Eleventh Circuit is the only circuit court

to have issued a decision directly contrary to the Fifth Circuit’s

decision in petitioner’s case in a published decision, see BIO, at

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

suppl. op. on reh’g, 189 F.3d 1315 (llth Cir. 1999),” that

precedent appears entrenched and the circuit split will thus

persist in the future. See, e.g., Saldana v. United States, 20€

Fed. App’x 843, 845 (llth Cir. 2006) (citing Maragh approvingly) ;

United States v. Woodard, 387 F.3d 1329, 1331-32 (llth Cir. 2004)

(same); United States v. Ruiz-Rodrigquez, 277 F.3d 1281, 1289-90

(llth Cir. 2002) (same); United States v. Desir, 257 F.3d 1233,

1236-37 (llth Cir. 2001) (same). A recent, cogent dissenting

opinion by Ninth Circuit Judge Fisher in United States v. Gamba,

483 F.3d 942, 950-51 (9th Cir. 2007) (Fisher, J., dissenting) - in

which he cmbraced the Eleventh Circuit’s decision in Maragh - also

shows that the Eleventh Circuit’s decision is not an aberration.

The United States’s brief also highlights a larger circuit

? Other circuits have held that a litigant’s waiver of the

right to an Article III judge must be “voluntary, knowing, and

intelligent.” See, e.g., Norris v. Schotten, 146 F.3d 314, 326 (6th

Cir. 1998) (citing, e.g., Johnson v. Zerbst, 304 U.S. 458, 464

(1938)). Under such precedent, the failure to object by a

defendant (particularly a Spanish-speaking one) who is totally

ignorant of his counsel’s consent to have a magistrate judge

preside over a critical stage cannot be deemed “voluntary, knowing,

and intelligent.”

split that could be resolved by this Court in petitioner’s case.

The United States correctly notes that numerous circuits are

divided on the threshold issue of whether some form of “affirmative

consent” is required (by either a litigant or her counsel) for a

magistrate judge to preside over a critical stage of a trial or

whether a mere lack of objection, without more, satisfies the

requirements for delegation to a magistrate judge under Article III

and the Federal Magistrates Act. See BIO, at 9-11 (discussing

conflicting decisions of the First, Fourth, Seventh, Eighth, Ninth,

Tenth, and Eleventh Circuits). Therefore, petitioner’s case also

is worthy of this Court’s review because it presents a vehicle to

resolve that circuit split as well, insofar as it is undisputed

that in the district court neither petitioner nor his attorney

voiced an objection to the magistrate judge’s presiding over jury

selection. Although petitioner contends that this lack of

objection is irrelevant (see Pet. 8-11), the fact that some

circuits view a lack of objection as dispositive means that

petitioner’s case is a good vehicle for this Court to decide that

threshold issue - in addition to the more specific issue of whether

counsel’s consent alone is sufficient, in the event that this Court

were to hold that a lack of objection does not foreclose

petitioner’s claim on appeal.

Regardless of the significance of the foregoing circuit

splits, however, the United States’s brief entirely fails to

address the point (made in Mr. Gonzalez’s petition for writ of

certiorari) that the Fifth Circuit’s decision conflicts with this

Court’s decisions in Commodities Future Trading Comm’n v. Schor,

478 U.S. 833, 848 (1986), and New York v. Hill, 528 U.S. 110, 114-

15 (2000), when read in conjunction. In Schor, this Court

described the constitutional right to an Article III judge as “a

personal right,” albeit one subject to waiver. Schor, 478 U.S. at

848. In Hill, this Court stated that a criminal defendant need not

“personally make an informed waiver” of most rights related to the

conduct of a trial and that a defense attorney may waive such

rights without the defendant’s knowledge or participation in the

waiver, Hill, 528 U.S. at 114-15; however, “[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) (waiver of right to counsel);

Brookhart v. Janis, 384 U.S. 1, 7-8 (1966) (waiver of right to

plead not guilty)); accord Taylor v. Illinois, 484 U.S. 400, 417-18

& n.24 (1988) (stating that “there are basic rights that the

attorney cannot waive without the fully informed and publicly

acknowledged consent of the client” and giving as examples the

right to plead not guilty and have a trial; the right to a jury

trial; and the right to be present during critical stages of trial)

(citations omitted).

In discussing the waiver of the constitutional right to an

Article III judge, this Court in Schor equated that right to the

most fundamental, “personal” rights of a criminal defendant - the

very same type that this Court mentioned in Hill and Taylor (i.e.,

those rights which, if waived, require a “personal” on-the-record

waiver by a 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).”) (emphasis added) .‘

Therefore, when read together, Schor, Hill, and Taylor provide that

the fundamental, “personal” right to an Article III judge is the

type of constitutional right that must be personally waived by a

defendant as opposed to the type of right that may be waived by

counsel alone without the defendant’s knowledge and consent.

The United States errs in contending that this Court in Peretz

3 This portion of this Court’s decision in Duncan, which

discussed waiver of the right to a jury trial, cited Patton, supra,

which requires the defendant’s “express and intelligent consent”

for a waiver to be valid (Patton, 281 U.S. at 312). See Duncan,

391 U.S. at 158 & n.27.

* See also Northern P n v

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

an independent judiciary as a “fundamental principle”).

“noted that the failure to raise a timely objection may result in

the loss a host of personal constitutional rights. ...” BIO, at

7-8 (citing cases) (emphasis added). None of the cases cited by

the United States® involved the waiver of fundamental, personal

constitutional rights.*® Rather, each of those rights discussed in

the cases cited in Peretz, although constitutional in nature, were

of the type described by this Court in Hill as being subject to

waiver or forfeiture by a defense attorney without the defendant’s

participation in the waiver. See Hill, 528 U.S. at 114-15. The

right to ‘an Article III judge, conversely, is the type of

fundamental, personal constitutional right that can be waived only

by a criminal defendant through “fully informed and publicly

acknowledged consent” by the defendant himself. Taylor, 484 U.S.

at 417-18. The Fifth Circuit’s decision in petitioner’s case is at

odds with this important principle.

Finally, the United States’s assertion that petitioner’s case

> United States v. Gagnon, 470 U.S. 522, 528 (1985) (waiver of

right to presence under Fed. R. Crim. P. 43); Levine v. United

States, 362 U.S. 610 (1960) (waiver of right to a public trial);

Segurola v. United States, 275 U.S. 106 (1927) (waiver of Fourth

Amendment right to be free from unreasonable searches and

seizures).

* Gagnon involved the waiver of the right to presence under

Rule 43, not the constitutional right to presence. See Gagnon, 470

U.S. at 528. This Court has stated that the constitut‘onal right

to presence - as opposed to the much broader Rule 43 right to

presence - is a “personal” right that a defendant can only waive

through the “fully informed and publicly acknowledged consent of

the [defendant].” Taylor, 484 U.S. at 417-18 & n.24 (citing Cross

v. United States, 325 F.2d 629 (D.C. Cir. 1963)).

is a “poor vehicle” to decide the legal issues raised by his case

because he did not object in the district court, see BIO, at 13, is

untenable. As petitioner explained in his petition for writ of

certiorari (see Pet. 8-12), the very nature of the consent issue

raised by petitioner necessarily means that it was not raised in

the district court. As Justice Scalia stated in his dissenting

opinion in Peretz (on a point not in conflict with the majority):

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 51, 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. .. . [P]Jetitioner 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 discretion 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 State:, 390 U.S. 62, 71-72, 88 S.Ct.

709, 715, 19 L.Ed.2d 900 (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 abjects 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. Valley Forge Christian

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

is eminently sensible to exercise here.

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

189 F.3d at 1316-17 (citing Judge Scalia’s opinion with approval).

CONCLUSION

For the foregoing reasons, as well as for the reasons set

forth in Mr. Gonzalez’s petition for writ of certiorari, this Court

should grant the writ of certiorari.

Date: Respectfully submitted,

August 9, 2007