Subject:  PERETZ v. UNITED STATES, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



PERETZ v. UNITED STATES


certiorari to the united states court of appeals for the second circuit

No. 90-615.  Argued April 23, 1991 -- Decided June 27, 1991

Gomez v. United States, 490 U. S. 858, held that the selection of a jury in
a felony trial without a defendant's consent is not one of the "additional
duties" that magistrates may be assigned under the Federal Magistrates Act.
That decision rested on the lack of both an express statutory provision for
de novo review and an explicit congressional intent to permit magistrates
to conduct voir dire absent the parties' consent.  And it was compelled by
concerns that a defendant might have a constitutional right to demand that
an Article III judge preside at every critical stage of a felony trial and
that the procedure deprived an individual of an important privilege, if not
a right.  In this case, petitioner Peretz consented to the assignment of a
Magistrate to conduct the voir dire and supervise the jury selection for
his felony trial, never asked the District Court to review the Magistrate's
rulings, and raised no objection regarding jury selection at trial.
However, on appeal from his conviction, he contended that it was error to
assign the jury selection to the Magistrate.  The Court of Appeals affirmed
the conviction on the ground that Gomez requires reversal only in cases in
which the magistrate has acted without the defendant's consent.

Held:

    1. The Act's "additional duties" clause permits a magistrate to
supervise jury selection in a felony trial provided that the parties
consent.  The fact that there is only ambiguous evidence of Congress'
intent to include jury selection among magistrates' additional duties is
far less important here than it was in Gomez, for Peretz' consent
eliminates the concerns about a constitutional issue and the deprivation of
an important right.  Absent these concerns, the Act's structure and purpose
evince a congressional belief that magistrates are well qualified to handle
matters of similar importance to jury selection.  This reading of the
additional duties clause strikes the balance Congress intended between a
criminal defendant's interests and the polices undergirding the Act.  It
allows courts, with the litigants' consent, to continue innovative
experiments in the use of magistrates to improve the efficient
administration of the courts' dockets, thus relieving the courts of certain
subordinate duties that often distract them from more important matters.
At the same time, the consent requirement protects a criminal defendant's
interest in requesting the presence of a trial judge at all critical stages
of his felony trial.  Pp. 8-12.

    2. There is no constitutional infirmity in the delegation of felony
trial jury selection to a magistrate when the litigants consent.  A
defendant has no constitutional right to have an Article III judge preside
at jury selection if he has raised no objection to the judge's absence.
Cf. Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 848.  Cf.
also, e. g., United States v. Gagnon, 470 U. S. 522, 528.  In addition,
none of Article III's structural protections are implicated by this pro
cedure.  The entire process takes place under the total control and ju
risdiction of the district court, which decides, subject to veto by the
parties, whether to invoke a magistrate's assistance and whether to
actually empanel the jury selected.  See United States v. Raddatz, 447 U.
S. 667.  That the Act does not provide for a de novo review of magistrates'
decisions during jury selection does not alter this result, for, if a
defendant requests review, nothing in the statute precludes a court from
providing the review required by the Constitution.  See id., at 681, n. 7.
Pp. 12-16.

904 F. 2d 34, affirmed.


    Stevens, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and O'Connor, Kennedy, and Souter, JJ., joined.  Marshall, J., filed a
dissenting opinion, in which White and Blackmun, JJ., joined.  Scalia, J.,
filed a dissenting opinion.
------------------------------------------------------------------------------




Subject: 90-615 -- OPINION, PERETZ v. UNITED STATES

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-615



RAFAEL PERETZ, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the second
circuit

[June 27, 1991]




    Justice Stevens delivered the opinion of the Court.

    The Federal Magistrates Act grants district courts authority to assign
magistrates certain described functions as well as "such additional duties
as are not inconsistent with the Constitution and laws of the United
States."  {1}  In Gomez v. United States, 490 U. S. 858 (1989), we held
that those "additional duties" do not encompass the selection of a jury in
a felony trial without the defendant's consent.  In this case, we consider
whether the defendant's consent warrants a different result.

I


    Petitioner and a codefendant were charged with importing four kilograms
of heroin.  At a pretrial conference attended by both petitioner and his
counsel, the District Judge asked if there was "[a]ny objection to picking
the jury before a magistrate?"  App. 2.  Petitioner's counsel responded: "I
would love the opportunity."  Ibid.  Immediately before the jury selection
commenced, the Magistrate asked for, and received, assurances from counsel
for petitioner and from counsel for his codefendant that she had their
clients' consent to proceed with the jury selection. {2}  She then
proceeded to conduct the voir dire and to supervise the selection of the
jury.  Neither defendant asked the District Court to review any ruling made
by the Magistrate.
    The District Judge presided at the jury trial which resulted in the
conviction of petitioner and the acquittal of his codefendant.  In the
District Court, petitioner raised no objection to the fact that the
Magistrate had conducted the voir dire.  On appeal, however, he contended
that it was error to assign the jury selection to the Magistrate and that
our decision in Gomez required reversal.  The Court of Appeals disagreed.
Relying on its earlier decision in United States v. Musacchia, 900 F. 2d
493 (CA2 1990), it held "that explicit consent by a defendant to
magistrate-supervised voir dire waives any subsequent challenge on those
grounds," and affirmed petitioner's conviction.  App. to Pet. for Cert. 2a;
904 F. 2d 34 (1990) (affirmance order).
    In Musacchia, the Second Circuit had affirmed a conviction in a case in
which the defendant had not objected to jury selection by the Magistrate.
The Court of Appeals concluded that our holding in Gomez applied only to
cases in which the magistrate had acted without the defendant's consent.
The court explained:


    "Appellants additionally claim that Gomez states that a magistrate is
without jurisdiction under the Federal Magistrates Act to conduct voir
dire.  We disagree.  Since Gomez was decided we and other circuits have
focused on the `without defendant's consent' language and generally ruled
that where there is either consent or a failure to object a magistrate may
conduct the jury voir dire in a felony case.  See [United States v.
Vanwort, 887 F. 2d 375, 382-383 (CA2 1989), cert. denied, sub nom.
Chapoteau v. United States, 495 U. S. --- (1990); United States v. Mang Sun
Wong, 884 F. 2d 1537, 1544 (CA2 1989), cert. denied, 493 U. S. 1082 (1990);
United States v. Lopez-Pena, 912 F. 2d 1542, 1545-1548 (CA1 1989)] (not
plain error to permit magistrate to preside since objection to magistrate
must be raised or it is waived); Government of the Virgin Islands v.
Williams, 892 F. 2d 305, 310 (3d Cir. 1989) (absent demand no
constitutional difficulty under MDRV 636(b)(3) with delegating jury
selection to magistrate); United States v. Ford, 824 F. 2d 1430, 1438-39
(5th Cir. 1987) (en banc) (harmless error for magistrate to conduct voir
dire where defendant failed to object), cert. denied, 484 U. S. 1034 . . .
(1988); United States v. Wey, 895 F. 2d 429 (7th Cir. 1990) (jury selection
by magistrate is not plain error where no prejudice is shown).  Concededly,
[United States v. France, 886 F. 2d 223 (CA9 1989),] concluded otherwise.
The court there ruled that defendant's failure to contemporaneously object
to the magistrate conducting jury selection did not waive her right to
appellate review.  886 F. 2d at 226.  But that holding may be explained, as
noted earlier, by what the court perceived as the futility of defendant
raising an objection below."  900 F. 2d, at 502.


    The conflict among the Circuits described by the Court of Appeals
prompted us to grant the Government's petition for certiorari in the France
case, see 495 U. S. --- (1990).  Earlier this term, we affirmed that
judgment by an equallydivided Court, 498 U. S. --- (1991).  Thereafter, we
granted certiorari in this case and directed the parties to address the
following three questions:


    "1. Does 28 U. S. C. MDRV 636 permit a magistrate to conduct the voir
dire in a felony trial if the defendant consents?
    "2. If 28 U. S. C. MDRV 636 permits a magistrate to conduct a felony
trial voir dire provided that the defendant consents, is the statute
consistent with Article III?
    "3. If the magistrate's supervision of the voir dire in petitioner's
trial was error, did the conduct of petitioner and his attorney constitute
a waiver of the right to raise this error on appeal?"  See 493 U. S. ---
(1991).


    Resolution of these questions must begin with a review of our decision
in Gomez.

II


    Our holding in Gomez was narrow.  We framed the question presented as
"whether presiding at the selection of a jury in a felony trial without the
defendant's consent is among those `additional duties' " that district
courts may assign to magistrates.  490 U. S., at 860 (emphasis added).  We
held that a magistrate "exceeds his jurisdiction" by selecting a jury
"despite the defendant's objection."  Id., at 876.  Thus, our holding was
carefully limited to the situation in which the parties had not acquiesced
at trial to the Magistrate's role. {3}  This particular question had
divided the Courts of Appeals.  See id., at 861-862, and n. 7.  On the
other hand, those courts had uniformly rejected challenges to a
magistrate's authority to conduct the voir dire when no objection to his
performance of the duty had been raised in the trial court. {4}
    Although we concluded that the role assumed by the Magistrate in Gomez
was beyond his authority under the Act, we recognized that Congress
intended magistrates to play an integral and important role in the federal
judicial system.  See id., at 864-869 (citing H. R. Rep. No. 96-287, p. 5
(1979)).  Our recent decisions have continued to acknowledge the importance
Congress placed on the magistrate's role.  See, e. g., McCarthy v. Bronson,
500 U. S. ---, --- (1991) (slip op., at 6).  "Given the bloated dockets
that district courts have now come to expect as ordinary, the role of the
magistrate in today's federal judicial system is nothing less than
indispensable."  Government of the Virgin Islands, 892 F. 2d, at 308. {5}
    Cognizant of the importance of magistrates to an efficient federal
court system, we were nonetheless propelled towards our holding in Gomez by
several considerations.  Chief among our concerns was this Court's "settled
policy to avoid an interpretation of a federal statute that engenders
constitutional issues."  Gomez, 490 U. S., at 864.  This policy was
implicated in Gomez because of the substantial question whether a defendant
has a constitutional right to demand that an Article III judge preside at
every critical stage of a felony trial. {6}  The principle of
constitutional avoidance led us to demand clear evidence that Congress
actually intended to permit magistrates to take on a role that raised a
substantial constitutional question.  Cf. Rust v. Sullivan, 500 U. S. ---,
--- (O'Connor, J., dissenting).  The requirement that Congress express its
intent clearly was also appropriate because the Government was asking us in
Gomez to construe a general grant of authority to authorize a procedure
that deprived an individual of an important privilege, if not a right.  See
2A C. Sands, Sutherland on Statutory Construction MDRV 58.04, p. 715 (rev.
4th ed. 1984).  The lack of an express provision for de novo review,
coupled with the absence of any mention in the statute's text or
legislative history of a magistrate's conducting voir dire without the
parties' consent, convinced us that Congress had not clearly authorized the
delegation involved in Gomez.  In view of the constitutional issues
involved, and the fact that broad language was being construed to deprive a
defendant of a significant right or privilege, we considered the lack of a
clear authorization dispositive.  See Gomez, 490 U. S., at 872, and n. 25,
875876.
    Reinforcing this conclusion was the principle that "[a]ny additional
duties performed pursuant to a general authorization in the statute
reasonably should bear some relation to the specified duties" that the
statute assigned to magistrates. {7}  Carefully reviewing the duties that
magistrates were expressly authorized to perform, see id., at 865-871, we
focused on the fact that those specified duties that were comparable to
jury selection in a felony trial could be performed only with the consent
of the litigants. {8}  We noted that, in 1968 when magistrates were
empowered to try "minor offenses," the exercise of that jurisdiction in any
specific case was conditioned upon the defendant's express written consent.
See id., at 866.  Similarly, the 1976 Amendment provided that a magistrate
could be designated as a special master in any civil case but only with the
consent of the parties.  Id., at 867-868.  And in 1979, when Congress
enlarged the magistrate's criminal jurisdiction to encompass all
misdemeanors, the exercise of that authority was subject to the defendant's
consent.  As we explained:


    "A critical limitation on this expanded jurisdiction is consent.  As
amended in 1979, the Act states that `neither the district judge nor the
magistrate shall attempt to persuade or induce any party to consent to
reference of any civil matter to a magistrate.'  93 Stat. 643, 28 U. S. C.
MDRV 636(c)(2).  In criminal cases, the Government may petition for trial
before a district judge.  `Defendants charged with misdemeanors can refuse
to consent to a magistrate and thus effect the same removal,' S. Rep. No.
96-74, p. 7 (1979), for the magistrate's criminal trial jurisdiction
depends on the defendant's specific, written consent."  Id., at 870-871
(footnote omitted).


Because the specified duties that Congress authorized magistrates to
perform without the consent of the parties were not comparable in
importance to supervision of felony trial voir dire but were instead
"subsidiary matters," id., at 872, we did not waver from our conclusion
that a magistrate cannot conduct voir dire over the defendant's objection.

III


    This case differs critically from Gomez because petitioner's counsel,
rather than objecting to the Magistrate's role, affirmatively welcomed it.
See supra, at 1.  The considerations that led to our holding in Gomez do
not lead to the conclusion that a magistrate's "additional duties" may not
include supervision of jury selection when the defendant has consented.
    Most notably, the defendant's consent significantly changes the
constitutional analysis.  As we explain in Part IV, infra, we have no
trouble concluding that there is no Article III problem when a district
court judge permits a magistrate to conduct voir dire in accordance with
the defendant's consent.  The absence of any constitutional difficulty
removes one concern that motivated us in Gomez to require unambiguous
evidence of Congress' intent to include jury selection among a magistrate's
additional duties.  Petitioner's consent also eliminates our concern that a
general authorization should not lightly be read to deprive a defendant of
any important privilege.
    We therefore attach far less importance in this case to the fact that
Congress did not focus on jury selection as a possible additional duty for
magistrates.  The generality of the category of "additional duties"
indicates that Congress intended to give federal judges significant leeway
to experiment with possible improvements in the efficiency of the judicial
process that had not already been tried or even foreseen.  If Congress had
intended strictly to limit these additional duties to functions considered
in the committee hearings or debates, presumably it would have included in
the statute a bill of particulars rather than a broad residuary clause.
Construing this residuary clause absent concerns about raising a
constitutional issue or depriving a defendant of an important right, we
should not foreclose constructive experiments that are acceptable to all
participants in the trial process and are consistent with the basic
purposes of the statute.
    Of course, we would still be reluctant, as we were in Gomez, to
construe the additional duties clause to include responsibilities of far
greater importance than the specified duties assigned to magistrates.  But
the litigants' consent makes the crucial difference on this score as well.
As we explained in Part II, the duties that a magistrate may perform over
the parties' objections are generally subsidiary matters not comparable to
supervision of jury selection.  However, with the parties' consent, a
district judge may delegate to a magistrate supervision of entire civil and
misdemeanor trials.  These duties are comparable in responsibility and
importance to presiding over voir dire at a felony trial.
    We therefore conclude that the Act's "additional duties" clause permits
a magistrate to supervise jury selection in a felony trial provided the
parties consent.  In reaching this result, we are assisted by the reasoning
of the Courts of Appeals for the Second, Third, and Seventh Circuits, all
of which, following our decision in Gomez, have concluded that the
rationale of that opinion does not apply when the defendant has not
objected to the magistrate's conduct of the voir dire.  See United States
v. Musacchia, 900 F. 2d 493 (CA2 1990); United States v. Wey, 895 F. 2d 429
(CA7 1990); Government of the Virgin Islands v. Williams, 892 F. 2d 305
(CA3 1989).
    We share the confidence expressed by the Third Circuit in Williams that
this reading of the additional duties clause strikes the balance Congress
intended between the interests of the criminal defendant and the policies
that undergird the Federal Magistrates Act.  892 F. 2d, at 311.  The Act is
designed to relieve the district courts of certain subordinate duties that
often distract the courts from more important matters. {9}  Our reading of
the "additional duties" clause will permit the courts, with the litigants'
consent, to "continue innovative experimentations" in the use of
magistrates to improve the efficient administration of the courts' dockets.
See H. R. Rep. No. 94-1609, p. 12 (1976). {10}
    At the same time, the requirement that a criminal defendant consent to
the additional duty of jury selection protects a defendant's interest in
requesting the presence of a judge at all critical stages of his felony
trial.


"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.
Where, on the other hand, the defendant is indifferent as to whether a
magistrate or a judge should preside, then it makes little sense to deny
the district court the opportunity to delegate that function to a
magistrate, particularly if such a delegation sensibly advances the court's
interest in the efficient regulation of its docket."  Government of the
Virgin Islands v. Williams, 892 F. 2d, at 311.


    In sum, the structure and purpose of the Federal Magistrates Act
convince us that supervision of voir dire in a felony proceeding is an
additional duty that may be delegated to a magistrate under 28 U. S. C.
MDRV 636(b)(3) if the litigants consent. {11}  The Act evinces a
congressional belief that magistrates are well qualified to handle matters
of similar importance to jury selection but conditions their authority to
accept such responsibilities on the consent of the parties.  If a defendant
perceives any threat of injury from the absence of an Article III judge in
the jury selection process, he need only decline to consent to the
magistrate's supervision to ensure that a judge conduct the voir dire. {12}
However, when a defendant does consent to the magistrate's role, the
magistrate has jurisdiction to perform this additional duty.

IV


    There is no constitutional infirmity in the delegation of felony trial
jury selection to a magistrate when the litigants consent.  As we have
already noted, it is arguable that a defendant in a criminal trial has a
constitutional right to demand the presence of an Article III judge at voir
dire.  We need not resolve that question now, however, to determine that a
defendant has no constitutional right to have an Article III judge preside
at jury selection if the defendant has raised no objection to the judge's
absence.
    We have previously held that litigants may waive their personal right
to have an Article III judge preside over a civil trial.  See Commodity
Futures Trading Comm'n v. Schor, 478 U. S. 833, 848 (1986).  The most basic
rights of criminal  defendants are similarly subject to waiver.  See, e.
g., United States v. Gagnon, 470 U. S. 522, 528 (1985) (absence of
objection constitutes waiver of right to be present at all stages of
criminal trial); Levine v. United States, 362 U. S. 610, 619 (1960)
(failure to object to closing of courtroom is waiver of right to public
trial); Segurola v. United States, 275 U. S. 106, 111 (1927) (failure to
object constitutes waiver of Fourth Amendment right against unlawful search
and seizure); United States v. Figueroa, 818 F. 2d 1020, 1025 (CA1 1987)
(failure to object results in forfeiture of claim of unlawful postarrest
delay); United States v. Bascaro, 742 F. 2d 1335, 1365 (CA11 1984) (absence
of objection is waiver of double jeopardy defense), cert. denied sub nom.
Hobson v. United States, 472 U. S. 1017 (1985); United States v. Coleman,
707 F. 2d 374, 376 (CA9) (failure to object constitutes waiver of Fifth
Amendment claim), cert. denied, 464 U. S. 854 (1983).  See generally Yakus
v. United States, 321 U. S. 414, 444 (1944) ("No procedural principle is
more familiar to this Court than that a constitutional right may be
forfeited in criminal as well as civil cases by the failure to make timely
assertion of the right").  Just as the Constitution affords no protection
to a defendant who waives these fundamental rights, so it gives no
assistance to a defendant who fails to demand the presence of an Article
III judge at the selection of his jury.
    Even assuming that a litigant may not waive structural protections
provided by Article III, see Schor, 478 U. S., at 850-851, we are convinced
that no such structural protections are implicated by the procedure
followed in this case.  Magistrates are appointed and subject to removal by
Article III judges.  See 28 U. S. C. MDRV 631.  The "ultimate decision"
whether to invoke the magistrate's assistance is made by the district
court, subject to veto by the parties.  See United States v. Raddatz, 447
U. S. 667, 683 (1980).  The decision whether to empanel the jury the
selection of which a magistrate has supervised also remains entirely with
the district court.  Because "the entire process takes place under the
district court's total control and jurisdiction," id., at 681, there is no
danger that use of the magistrate involves a "congressional attemp[t] `to
transfer jurisdiction [to non-Article III tribunals] for the purpose of
emasculating' constitutional courts, National Insurance Co. v. Tidewater
Co., 337 U. S. 582, 644 (1949) (Vinson, C. J., dissenting) . . . ."  Schor,
478 U. S., at 850.
    In Raddatz, we held that the Constitution was not violated by the
reference to a Magistrate of a motion to suppress evidence in a felony
trial.  The principal constitutional argument advanced and rejected in
Raddatz was that the omission of a requirement that the trial judge must
hear the testimony of the witnesses whenever a question of credibility
arises violated the Due Process Clause of the Fifth Amendment.  Petitioner
has not advanced a similar argument in this case, no doubt because it would
plainly be foreclosed by our holding in Raddatz.  That case also disposes
of the Article III argument that petitioner does raise.  The reasoning in
Justice Blackmun's concurring opinion is controlling here:


"As the Court observes, the handling of suppression motions invariably
remains completely in the control of the federal district court.  The judge
may initially decline to refer any matter to a magistrate.  When a matter
is referred, the judge may freely reject the magistrate's recommendation.
He may rehear the evidence in whole or in part.  He may call for additional
findings or otherwise `recommit the matter to the magistrate with
instructions.'  See 28 U. S. C. MDRV 636(b)(1).  Moreover, the magistrate
himself is subject to the Art. III judge's control.  Magistrates are
appointed by district judges, MDRV 631(a), and subject to removal by them,
MDRV 631(h).  In addition, district judges retain plenary authority over
when, what, and how many pretrial matters are assigned to magistrates, and
`[e]ach district court shall establish rules pursuant to which the
magistrates shall discharge their duties.'  MDRV 636(b)(4). . . .
    "It is also significant that the Magistrates Act imposes significant
requirements to ensure competency and im partiality, 15 631(b), (c), and
(i), 632, 637 (1976 ed. and Supp. II), including a rule generally barring
reduction of salaries of full-time magistrates, MDRV 634(b).  Even assuming
that, despite these protections, a controversial matter might be delegated
to a magistrate who is susceptible to outside pressures, the district judge
-- insulated by life tenure and irreducible salary -- is waiting in the
wings, fully able to correct errors.  Under these circumstances, I simply
do not perceive the threat to the judicial power or the independence of
judicial decisionmaking that underlies Art. III.  We do not face a
procedure under which `Congress [has] delegate[d] to a non-Art. III judge
the authority to make final determinations on issues of fact.'  Post, at
703 (dissenting opinion).  Rather, we confront a procedure under which
Congress has vested in Art. III judges the discretionary power to delegate
certain functions to competent and impartial assistants, while ensuring
that the judges retain complete supervisory control over the assistants'
activities."  447 U. S., at 685-686.


    Unlike the provision of the Federal Magistrates Act that we upheld in
Raddatz, MDRV 636(b)(3) contains no express provision for de novo review of
a magistrate's rulings during the selection of a jury.  This omission,
however, does not alter the result of the constitutional analysis.  The
statutory provision we upheld in Raddatz provided for de novo review only
when a party objected to the magistrate's findings or recommendations.  See
28 U. S. C. MDRV 636(b)(1).  Thus, Raddatz established that, to the extent
"de novo review is required to satisfy Article III concerns, it need not be
exercised unless requested by the parties."  United States v. Peacock, 761
F. 2d 1313, 1318 (CA9) (Kennedy, J.), cert. denied, 474 U. S. 847 (1985).
In this case, petitioner did not ask the District Court to review any
ruling by the Magistrate.  If a defendant in a future case does request
review, nothing in the statute precludes a district court from providing
the review that the Constitution requires.  Although there may be other
cases in which de novo review by the district court would provide an
inadequate substitute for the Article III judge's actual supervision of the
voir dire, the same is true of a magistrate's determination in a
suppression hearing, which often turns on the credibility of witnesses.
See Raddatz, 447 U. S., at 692 (Stewart, J., dissenting).  We presume, as
we did in Raddatz when we upheld the provision allowing reference to a
magistrate of suppression motions, that district judges will handle such
cases properly if and when they arise.  See id., at 681, n. 7.  Our
decision that the procedure followed in Raddatz comported with Article III
therefore requires the same conclusion respecting the procedure followed in
this case.

V


    Our disposition of the statutory and constitutional questions makes it
unnecessary to discuss the third question that we asked the parties to
brief and to argue.  We note, however, that the Solicitor General conceded
that it was error to make the reference to the Magistrate in this case and
relied entirely on the argument that the error was waived.  Although that
concession deprived us of the benefit of an adversary presentation, it of
course does not prevent us from adopting the legal analysis of those Courts
of Appeals that share our interpretation of the statute as construed in
Gomez.  We agree with the view of the majority of Circuit Judges who have
considered this issue, both before and after our decision in Gomez, that
permitting a magistrate to conduct the voir dire in a felony trial when the
defendant raises no objection is entirely faithful to the congressional
purpose in enacting and amending the Federal Magistrates Act. {13}

    The judgment of the Court of Appeals is affirmed.

It is so ordered.


 
 
 
 
 

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1
    Pub. L. 90-578, 82 Stat. 1108, as amended, 28 U. S. C. MDRV 636(b)(3).

2
    "THE COURT: Mr. Breitbart, I have the consent of your client to proceed
with the jury selection?
    "MR. BREITBART: Yes, your Honor.
    "THE COURT: And Mr. Lopez, do I have the consent of your client to
proceed?
 
    "MR. LOPEZ: Yes, your Honor."  App. 5.

3
    As the Third Circuit has recognized:


"The Court did not, however, reach the question presented in this case:
whether the Federal Magistrates Act permits a magistrate to preside over
the selection of a jury when a defendant consents.  In Gomez, the Court
framed the issue as `whether presiding at the selection of a jury in a
felony trial without the defendant's consent' is an additional duty within
the meaning of the Federal Magistrates Act.  Id. at 2239 (emphasis added);
see also id. at 2248 (rejecting the government's harmless error analysis on
the grounds that it `does not apply in a felony case in which, despite the
defendant's objection and without any meaningful review by a district
judge, an officer exceeds his jurisdiction by selecting a jury').  Gomez
thus left open the question whether a defendant's consent makes a
difference as to whether a district court may assign voir dire to a
magistrate."  Government of the Virgin Islands v. Williams, 892 F. 2d 305,
308-309 (1989).

4
    See, e. g., United States v. Ford, 824 F. 2d 1430 (CA5 1987) (en banc),
cert. denied, 484 U. S. 1034 (1988); United States v. DeFiore, 720 F. 2d
757 (CA2 1983), cert. denied sub nom. Coppola v. United States, 466 U. S.
906 (1984); United States v. Rivera-Sola, 713 F. 2d 866 (CA1 1983); Haith
v. United States, 342 F. 2d 158 (CA3 1965).

5
    "It can hardly be denied that the system created by the Federal
Magistrates Act has exceeded the highest expectations of the legislators
who conceived it.  In modern federal practice, federal magistrates account
for a staggering volume of judicial work.  In 1987, for example,
magistrates presided over nearly half a million judicial proceedings.  See
S. Rep. No. 100-293, 100th Cong., 2d Sess. 7, reprinted in 1988 U. S. Code
Cong. & Admin. News 5564.  As a recent State Report noted, `[i]n
particular, magistrates [in 1987] conducted over 134,000 preliminary
proceedings in felony cases; handled more than 197,000 references of civil
and criminal pretrial matters; reviewed more than 6,500 social security
appeals and more than 27,000 prisoner filings; and tried more than 95,000
misdemeanors and 4,900 civil cases on consent of the parties.  Id. at
5565."  Government of the Virgin Islands v. Williams, 892 F. 2d, at 308.

6
    In Gomez, we cited our opinion in Commodity Futures Trading Comm'n v.
Schor, 478 U. S. 833 (1986), which emphasized the importance of the
personal right to an Article III adjudicator:

    "Article III, MDRV 1, serves both to protect `the role of the
independent judiciary within the constitutional scheme of tripartite
government.'  Thomas, [473 U. S. 568, 583 (1985)], and to safeguard
litigants' `right to have claims decided before judges who are free from
potential domination by other branches of government.'  United States v.
Will, 449 U. S. 200, 218 (1980).  See also Thomas, supra, at 582-583;
Northern Pipeline, 458 U. S., at 58.  Although our cases have provided us
with little occasion to discuss the nature or significance of this latter
safeguard, our prior discussions of Article III, MDRV 1's guarantee of an
independent and impartial adjudication by the federal judiciary of matters
within the judicial power of the United States intimated that this
guarantee serves to protect primarily personal, rather than structural,
interests.  See, e. g., id., at 90 (Rehnquist, J., concurring in judgment)
(noting lack of consent to non-Article III jurisdiction); id., at 95
(White, J., dissenting) (same).  See also Currie, Bankruptcy Judges and the
Independent Judiciary, 16 Creighton L. Rev. 441, 460, n. 108 (1983)
(Article III, MDRV 1, `was designed as a protection for the parties from
the risk of legislative or executive pressure on judicial decision').  Cf.
Crowell v. Benson, [285 U. S. 22, 87 (1932)] (Brandeis, J., dissenting)."
Id., at 848.

7
    "The Federal Magistrates Act provides that a `magistrate may be
assigned such additional duties as are not inconsistent with the
Constitution and laws of the United States.'  28 U. S. C. MDRV 636(b)(3).
Read literally and without reference to the context in which they appear,
these words might encompass any assignment that is not explicitly
prohibited by statute or by the Constitution. . . .

"When a statute creates an office to which it assigns specific duties,
those duties outline the attributes of the office.  Any additional duties
performed pursuant to a general authorization in the statute reasonably
should bear some relation to the specified duties.  Thus in United States
v. Raddatz, 447 U. S. 667, 674-676 (1980); Mathews v. Weber, 423 U. S. 261
(1976); and Wingo v. Wedding, 418 U. S. 461 (1974), we interpreted the
Federal Magistrates Act in light of its structure and purpose."  Gomez v.
United States, 490 U. S., at 863-864 (1989).

8
    The legislative history of the statute also emphasizes the crucial
nature of the presence or absence of the litigants' consent.  See H. R.
Rep. No. 96-287, p. 20 (1979) ("Because of the consent requirement,
magistrates will be used only as the bench, bar, and litigants desire, only
in cases where they are felt by all participants to be competent").

9
    See, e. g., H. R. Rep. No. 94-1609, p. 7 (1976) (magistrate is to
"assist the district judge in a variety of pretrial and preliminary matters
thereby facilitating the ultimate and final exercise of the adjudicatory
function at the trial of the case"); S. Rep. No. 92-1065, p. 3 (1972)
(magistrates "render valuable assistance to the judges of the district
courts, thereby freeing the time of those judges for the actual trial of
cases"); H. R. Rep. No. 1629, 90th Cong., 2d Sess., p. 12 (1968) (purpose
of Act is "to cull from the ever-growing workload of the U. S. district
courts matters that are more desirably performed by a lower tier of
judicial officers").

10
    See, e. g., United States v. Peacock, 761 F. 2d 1313, 1319 (CA9)
(Kennedy, J.) ("There may be sound reasons . . . to allow the magistrate to
assist [in voir dire], as was done in this case.  [E]ach of the . . .
circuits in the federal system . . . has been instructed to improve its
efficiency in juror utilization. . . .  The practice of delegating voir
dire to a magistrate may assist the district courts in accomplishing this
objective"), cert denied, 474 U. S. 847 (1985).

11
    We noted in Gomez that the legislative history of the Act nowhere
listed supervision, without a defendant's consent, of a felony trial voir
dire as a potential magistrate responsibility.  We did call attention,
however, to a Committee Report that referred to a "letter suggest[ing] that
a magistrate selected juries only with consent of the parties."  Gomez v.
United States, 490 U. S. 858, 875-876, n. 30 (1989) (emphasis added)
(citing H. R. Rep. No. 94-1609, p. 9 (1976)).

12
    We do not qualify the portion of our opinion in Gomez that explained
why jury selection is an important function, the performance of which may
be difficult for a judge to review with infallible accuracy.  See 490 U.
S., at 873-876.  We are confident, however, that defense counsel can
sensibly balance these considerations against other concerns in deciding
whether to object to a magistrate's supervision of voir dire.  We stress,
in this regard, that defendants may waive the right to judicial performance
of other important functions, including the conduct of the trial itself in
misdemeanor and civil proceedings.  Like jury selection, these duties
require the magistrate to "observe witnesses, make credibility
determinations, and weigh contradictory evidence," id. at 874, n. 27, and
therefore present equivalent problems for judicial oversight.

13
    See, e. g., United States v. Alvarado, 923 F. 2d 253 (CA2 1991);
Government of the Virgin Islands v. Williams, 892 F. 2d 305 (CA3 1989);
United States v. Rivera-Sola, 713 F. 2d 866 (CA1 1983); United States v.
Ford, 824 F. 2d 1430, 1439-1440 (CA5 1987) (Jolly, J., concurring), cert.
denied, 484 U. S. 1034 (1988).  Cf. United States v. Wey, 895 F. 2d 429,
431 (CA7 1990) ("it may be that the defendant's consent could authorize the
judge to designate a magistrate, under 28 U. S. C. MDRV 636(b), to preside
over jury selection"); Ford, 824 F. 2d, at 1438-1439 (failure to object
constitutes waiver of error); United States v. DeFiore, 720 F. 2d 757 (CA2
1983), cert. denied sub nom. Coppola v. United States, 466 U. S. 906
(1984).  But see United States v. Martinez-Torres, 912 F. 2d 1552 (CA1
1990) (en banc); United States v. France, 886 F. 2d 223 (CA9 1989).





Subject: 90-615 -- DISSENT, PERETZ v. UNITED STATES

 


    SUPREME COURT OF THE UNITED STATES


No. 90-615



RAFAEL PERETZ, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the second
circuit


[June 27, 1991]



    Justice Marshall, with whom Justice White and Justice Blackmun join,
dissenting.
    In Gomez v. United States, 490 U. S. 858 (1989), this Court held that
the Federal Magistrates Act does not authorize magistrates to conduct jury
selection at a felony trial.  In an amazing display of interpretive
gymnastics, the majority twists, bends, and contorts the logic of Gomez,
attempting to demonstrate that the consideration critical to our holding in
that case was the defendant's refusal to consent to magistrate jury
selection.  I find Gomez to be considerably less flexible.  Our reasoning
in Gomez makes clear that the absence or presence of consent is entirely
irrelevant to the Federal Magistrates Act's prohibition upon magistrate
jury selection in a felony trial.
    The majority's reconstruction of Gomez is not only unsound, but also
unwise.  By discarding Gomez's categorical prohibition of magistrate felony
jury selection, the majority unnecessarily raises the troubling question
whether this practice is consistent with Article III of the Constitution.
To compound its error, the majority resolves the constitutional question in
a manner entirely inconsistent with our controlling precedents.  I
dissent.

I


A
    The majority purports to locate the source of a magistrate's authority
to conduct consented-to felony jury selection in the Act's "additional
duties" clause, which states that "[a] magistrate may be assigned such
additional duties as are not inconsistent with the Constitution and laws of
the United States."  28 U. S. C. MDRV 636(b)(3).  Whether the additional
duties clause authorizes a magistrate to conduct jury selection in a felony
trial is a conventional issue of statutory interpretation.  In Gomez, we
held that "[t]he absence of a specific reference to jury selection in the
statute, or indeed, in the legislative history, persuades us that Congress
did not intend the additional duties clause to embrace this function."  490
U. S., at 875-876 (footnote omitted).  In my view, the existence of a
defendant's consent has absolutely no effect on that conclusion.
    In Gomez, we rejected a literal reading of the additional duties clause
that would have authorized magistrates to exercise any power not expressly
prohibited by federal statute or the Constitution.  See id., at 864-865.
Relying on prece dent and legislative history, we emphasized that the
additional duties clause is to be read according to Congress' intention
that magistrates "handle subsidiary matters[,] [thereby] enabl[ing]
district judges to concentrate on trying cases."  Id., at 872.


    "If district judges are willing to experiment with the assignment to
magistrates of other functions in aid of the business of the courts, there
will be increased time available to judges for the careful and unhurried
performance of their vital and traditional adjudicatory duties, and a
consequent benefit to both efficiency and the quality of justice in the
Federal courts."  H. R. Rep. No. 94-1609, p. 12 (1976) (emphasis added)
(1976 amendments to Federal Magistrates Act); accord, S. Rep. No. 371, 90th
Cong., 1st Sess., 26 (1967) (Federal Magistrates Act of 1968). {1}


    We identified two reasons in Gomez for inferring that Congress intended
jury selection in felony trials to be one of the "vital and traditional
adjudicatory duties" retained by district judges rather than delegated to
magistrates.  First, we noted that Congress felt it necessary to define
expressly a magistrate's limited authority to conduct misdemeanor and civil
trials.  See 28 U. S. C. 15 636(a)(3), 636(c).  We concluded that "th[is]
carefully defined grant of authority to conduct trials of civil matters and
of minor criminal cases" constituted "an implicit withholding of the
authority to preside at a felony trial."  Gomez, 490 U. S., at 872.  And in
light of the traditional judicial and legislative understanding that jury
selection is an essential component of a felony trial, {2} we determined
that Congress' intention to deny magistrates the authority to preside at
felony trials also extends to jury selection.  See id., at 871-872.
    In my view, this structural inference is not at all affected by a
defendant's consent.  Under the Act, consent of the parties is a necessary
condition of a magistrate's statutory authority to preside at a civil or
misdemeanor trial.  See 18 U. S. C. MDRV 3401(b); 28 U. S. C. MDRV
636(c)(1).  To hold, as the majority does, that a magistrate may likewise
conduct jury selection in a felony trial so long as the defendant consents
is to treat the magistrate's authority in this part of the felony trial as
perfectly coextensive with his authority in civil and misdemeanor trials --
the reading of the Act that Gomez categorically rejected.
    The second basis for our conclusion in Gomez that Congress intended
felony jury selection to be nondelegable was Congress' failure expressly to
provide for judicial review of magistrate jury selection in felony cases.
The Federal Magistrates Act provides two separate standards of judicial
review: "clearly erroneous or contrary to law" for magistrate resolution of
nondispositive matters, see 28 U. S. C. MDRV 636(b) (1)(A), and "de novo"
for magistrate resolution of dispositive matters, see MDRV
636(b)(1)(B)-(C).  We deemed Congress' failure to identify any standard of
judicial review for jury selection in felony trials to be persuasive
evidence of Congress' intent that magistrates not perform this function.
Gomez, supra, at 873-874.
    Again, I fail to see how a defendant's consent to a magistrate's
exercise of such authority can alter this inference.  Congress said no more
about the standard of review for consented-to magistrate jury selection
than it did about the standard for unconsented-to magistrate jury
selection.  Nor does the majority identify anything in the statute to
indicate the appropriate standard for consented-to magistrate jury
selection.
    The majority opines that "nothing in the statute precludes" judicial
review, ante, at 15.  However, it fails to explain how such review may be
achieved.  The majority's silence is regrettable.  In Gomez, we recognized
that jury selection is most similar to the functions identified as
"dispositive matters," for which the Act prescribes a de novo review
standard.  490 U. S., at 873.  We expressed "serious doubts," however, as
to whether any review could be meaningfully conducted.  Id., at 874. {3}
We likewise concluded that reexamination of individual jurors by the
district judge would not be feasible because "as a practical matter a
second interrogation might place jurors on the defensive, engendering
prejudices irrelevant to the facts adduced at trial."  Id., at 875, n. 29.
These difficulties in providing effective review of magistrate jury
selection were central to our construction of the Act in Gomez, yet they
are essentially ignored today. {4}
    In Gomez, we found confirmation of the inferences that we drew from the
statutory text in "[t]he absence of a specific reference to jury selection
in . . . the legislative history."  Id., at 875.  See ante, at 6.  The
legislative history of the Act offers no more support for consented-to
magistrate felony jury selection. {5}
    In response to the paucity of support for its construction, the
majority notes that in Gomez we "call[ed] attention" to a House Committee
Report that "referred" to a letter from a district judge mentioning jury
selection as a duty assigned to magistrates.  Ante, at 11, n. 11.  While
the majority observes that the letter " `suggest[ed] that a magistrate
selected juries only with consent of the parties,' " ibid., quoting Gomez,
490 U. S., at 875, n. 30 (emphasis added by majority), it neglects to
record other salient facts that we noted about this letter.  In particular,
the letter was the "lone reference" in the entire legislative history to
such authority.  Ibid.  (emphasis added).  Moreover, the letter suggested
that magistrate jury selection took place "perhaps only in civil trials."
Id., at 876, n. 30 (emphasis added).  Finally, as we pointed out in Gomez,


"[the letter] displays little concern about the validity of such
assignments: `How can we do all of this?  We just do it.  It's not
necessary that we find authority in black and white before we give
something to the magistrate. . . .  Sure we might get shot down once in a
while by an appellate court.  So what?' "  Ibid. (citation omitted).

B
    It is clear that the considerations that motivated our holding in Gomez
compel the conclusion that the Federal Magistrates Act does not permit
magistrate felony jury selection even when the defendant consents.  I find
the majority's arguments to the contrary wholly unpersuasive.
    According to the majority, "[t]his case differs critically from Gomez"
because petitioner's counsel consented to the delegation of jury selection
to the Magistrate.  Ante, 8.  Although it asserts that this factor was
essential to our analysis, the majority fails to explain how consent has
any bearing on the statutory power of a magistrate to conduct felony jury
selection.  As I have already indicated, the reasoning behind our
conclusion in Gomez that Congress did not endow magistrates with
jurisdiction to preside over felony jury selection had nothing to do with
the defendant's refusal to consent to such jurisdiction.
    Unable to support its revisionist construction of the Act with what we
said in Gomez, the majority seeks to bolster its construction by noting
that, provided the parties consent, magistrates may conduct civil and
misdemeanor trials and that "[t]hese duties are comparable in
responsibility and importance to presiding over voir dire at a felony
trial."  Ante, at 9.  The majority's analogy misses the point.  The fact
that Congress imposed the condition of consent on magistrates' exercise of
expressly-provided authority does not prove that Congress also authorized
magistrates to conduct trial duties not expressly enumerated in the Federal
Magistrates Act -- such as supervision of felony jury selection.  At most,
these specifically enumerated grants of trial authority suggest that if
Congress had intended to confer on magistrates authority to conduct felony
jury selection, it would have predicated that authority on the parties'
consent.  However, as I have already discussed, see supra, at 3-4,
construing the Act as authorizing magistrates to conduct consented-to jury
selection in felony cases merely because the Act authorizes consented-to
jurisdiction in civil and misdemeanor cases is to draw an inference from
Congress' silence precisely opposite to the inference we drew in Gomez.
{6}
    Finally, the majority defends its construction of the additional duties
clause by stating that it will permit " `continue[d] innovative
experimentations' in the use of magistrates to improve the efficient
administration" of the district courts.  Ante, at 10.  Taken literally,
such a rationale admits of no limits, and for this reason it cannot
function as a legitimate basis for construing the scope of a magistrate's
permissible "additional duties."  As in Gomez, we must give content to the
additional duties clause by looking to Congress' intention that magistrates
be delegated administrative and other quasi-judicial tasks in order to free
Article III judges to conduct trials, most particularly felony trials.  See
supra, at 2.  By creating authority for magistrates to preside over a "crit
ical stage" of the felony trial, see Gomez, supra, at 873, merely because a
defendant fails to request a judge, the majority completely misapprehends
both Congress' conception of the appropriate role to be played by
magistrates and our analysis in Gomez.

II
    I have outlined why I believe the only defensible construction of the
Federal Magistrates Act is that jury selection in a felony trial can never
be one of a magistrate's "additional duties" -- regardless of whether a
defendant consents.  But even if I believed that mine was only one of two
"reasonable" interpretations, I would still reject the majority's
construction of the Act, because it needlessly raises a serious
constitutional question: whether jury selection by a magistrate -- even
when a defendant consents -- is consistent with Article III.
    It is well established that we should "avoid an interpretation of a
federal statute that engenders constitutional issues if a reasonable
alternative interpretation poses no constitutional question."  Gomez, 490
U. S., at 864; accord, e. g., Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988);
Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 841 (1986);
Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring).
Given the inherent complexity of Article III questions, the canon of
constitutional avoidance should apply with particular force when an Article
III issue is at stake.  Cf. Northern Pipeline Construction Co. v. Marathon
Pipe Line Co., 458 U. S. 50, 90 (1982) (Rehnquist, J., concurring in
judgment) ("Particularly in an area of constitutional law such as that of
`Art. III Courts,' with its frequently arcane distinctions and confusing
precedents, rigorous adherence to the principle that this Court should
decide no more of a constitutional question than is absolutely necessary
accords with both our decided cases and with sound judicial policy").
    Although this principle guided our analysis in Gomez, see 490 U. S., at
864, it is all but forgotten today.  The majority simply dismisses
altogether the seriousness of the underlying constitutional question: "[W]e
have no trouble concluding that there is no Article III problem when a
district court judge permits a magistrate to conduct voir dire in
accordance with the defendant's consent."  Ante, at 8-9.  The majority's
self-confidence is unfounded.  It is only by unacceptably manipulating our
Article III teachings that the majority succeeds in avoiding the difficulty
that attends its construction of the Act.
    As the Court explained in Schor, Article III's protections have two
distinct dimensions.  First, Article III "safeguard[s] litigants' `right to
have claims decided before judges who are free from potential domination by
other branches of government.' "  Schor, supra, at 848, quoting United
States v. Will, 449 U. S. 200, 218 (1980).  Second, Article III "serves as
`an inseparable element of the constitutional system of checks and
balances' " by preserving "the role of the Judicial Branch in our
tripartite system" of government.  Schor, supra, at 850, quoting Northern
Pipeline, supra, at 58.  Although, parties may waive their personal
guarantee of an independent Article III adjudicator, Schor, supra, at 848,
parties may not waive Article III's structural guarantee.

"Article III, MDRV 1, safeguards the role of the Judicial Branch in our
tripartite system by barring congressional attempts to `transfer
jurisdiction [to non-Article III tribunals] for the purpose of
emasculating' constitutional courts . . . .  To the extent that this
structural principle is implicated in a given case, the parties cannot by
consent cure the constitutional difficulty for the same reason that the
parties by consent cannot confer on federal courts subject-matter
jurisdiction beyond the limitations imposed by Article III, MDRV 2.  When
these Article III limitations are at issue, notions of consent and waiver
cannot be dispositive because the limitations serve institutional interests
that the parties cannot be expected to protect."  478 U. S., at 850-851
(emphasis added; citations omitted).


    In Gomez, we recognized and attempted to accommodate "abiding concerns
regarding the constitutionality of delegating felony trial duties to
magistrates."  See 490 U. S., at 863.  Because jury selection is "a
critical stage" of the felony trial, see id., at 873, there is a serious
question, as several Courts of Appeals have noted, whether allowing a
magistrate to conduct felony jury selection "impermissibly intrude[s] on
the province of the judiciary," Schor, supra, at 851-852.  See United
States v. Trice, 864 F. 2d 1421, 1426 (CA8 1988), cert. dism'd, 491 U. S.
914 (1989); United States v. Ford, 824 F. 2d 1430, 1434-1435 (CA5 1987) (en
banc), cert. denied, 484 U. S. 1034 (1988).
    Indeed, this problem admits of no easy solution.  This Court's decision
in United States v. Raddatz, 447 U. S. 667 (1980), suggests that delegation
of Article III powers to a magistrate is permissible only if the ultimate
determinations on the merits of delegated matters are made by the district
judge.  See id., at 683 ("[A]lthough the [Federal Magistrates Act] permits
the district court to give to the magistrate's proposed findings of fact
and recommendations `such weight as [their] merit commands and the sound
discretion of the judge warrants,' that delegation does not violate Art.
III so long as the ultimate decision is made by the district court"
(emphasis added; citation omitted)). {7}  In Schor, we likewise emphasized
the availability of de novo judicial review in upholding the performance of
core Article III powers by an Article I tribunal.  See 478 U. S., at 853.
But this means of satisfying the Constitution is not available here.  For,
as I have noted, supra, at 4-5, the Federal Magistrates Act does not
expressly provide for judicial review of felony jury selection, and in
Gomez we expressed "serious doubts" whether such review was even possible.
See 490 U. S., at 874.
    The majority contends that magistrate jury selection raises no Article
III structural difficulties, because " `the entire process takes place
under the district court's total control and jurisdiction.' "  Ante, at 13,
quoting Raddatz, supra, at 681.  However, as Raddatz and Schor underscore,
the requirement of "the district court's total control and jurisdiction"
must include the availability of meaningful judicial review of the
magistrate's actual rulings at jury selection.  The majority's observation
that "nothing in the statute precludes a district court from providing the
review that the Constitution requires," ante, at 15, is equally unavailing.
The critical question for Article III purposes is whether meaningful
judicial review of magistrate felony jury selection can be accomplished.
The majority does not answer this question, and Gomez strongly suggests
that it cannot.
    Because it ignores the teachings of Raddatz and Schor, the majority's
analysis of the Article III difficulty posed by its construction of the
Federal Magistrates Act raises the question whether these decisions remain
good law.  This consequence is particularly unfortunate, because, as I have
set forth above, the most coherent reading of the Federal Magistrates Act
avoids these problems entirely.
    I dissent.

 
 
 
 
------------------------------------------------------------------------------
1
    This theme pervades the Act's legislative history.  See, e. g., S. Rep.
No. 96-74, p. 3 (1979) (1979 amendments to Federal Magistrates Act) ("In
enacting the Federal Magistrates Act in 1968, the Congress clearly intended
that the magistrate should be a judicial officer whose purpose was to
assist the district judge to the end that the judge could have more time to
preside at the trial of cases"); H. R. Rep. No. 94-1609, p. 6 (1976)
(same); S. Rep. 94-625, p. 6 (1976) (1976 amendments to Federal Magistrates
Act) ("Without the assistance furnished by magistrates . . . the judges of
the district courts would have to devote a substantial portion of their
available time to various procedural steps rather than to the trial
itself"); see also S. Rep. No. 371, 90th Cong., 1st Sess., 9 (1967)
(Federal Magistrates Act is intended "to cull from the ever-growing
workload of the U. S. district courts matters that are more desirably
performed by a lower tier of judicial officers").

2
    As we have observed, " ` "[W]here the indictment is for a felony, the
trial commences at least from the time when the work of empanelling the
jury begins." ' "  Gomez v. United States, 490 U. S. 858, 873 (1989),
quoting Lewis v. United States, 146 U. S. 370, 374 (1892), quoting Hopt v.
Utah, 110 U. S. 574, 578 (1884).  Moreover, "[j]ury selection is the
primary means by which a court may enforce a defendant's right to be tried
by a jury free from ethnic, racial, or political prejudice, or
predisposition about the defendant's culpability."  Gomez, supra, at 873
(citations omitted).  We discerned Congress' recognition of this
understanding from its passage of the Speedy Trial Act, 18 U. S. C. MDRV
3161, and from its placement of rules relating to juries and jury selection
in a chapter of the Federal Rules of Criminal Procedure entitled "Trial."
See Gomez, supra, at 873, citing Fed. Rules Crim. Proc. 23 and 24.

3
    "To detect prejudices, the examiner -- often, in the federal system,
the court -- must elicit from prospective jurors candid answers about
intimate details of their lives.  The court further must scrutinize not
only spoken words but also gestures and attitudes of all participants to
ensure the jury's impartiality.  But only words can be preserved for
review; no transcript can recapture the atmosphere of the voir dire, which
may persist throughout the trial."  Gomez, supra, at 874-875 (citations
omitted).

4
    The majority concedes that magistrate jury selection "may be difficult
for a judge to review with infallible accuracy."  Ante, at 12, n. 12.  But
it dismisses any concerns with respect to the difficulty of effective
judicial review, stating that the defendant can eliminate the need for
judicial review altogether by simply declining to consent to magistrate
jury selection.  Ante, at 11-12, and n. 12.  This rationalization misses
the point.  Insofar as the Federal Magistrates Act insists that magistrate
functions be subject to judicial review, the impossibility of effective
review is reason not to construe the additional duties clause as
authorizing magistrates to conduct felony jury selection, regardless of
whether the parties consent.  See Gomez, supra, at 874-875.

5
    In Gomez, we noted that Committee Reports accompanying the 1976 and
1979 amendments to the Magistrates Act contained charts cataloging
magistrate functions.  In determining Congress' understanding of the
permissible scope of magistrate duties, we found it relevant that not one
of the charts mentioned jury selection.  See Gomez, 490 U. S., at 875, n.
30 (citing H. R. Rep. No. 96-287, pp. 4-5 (1979); S. Rep. No. 96-74, at 3;
H. R. Rep. No. 94-1609, at 7; S. Rep. No. 94-625, at 5).  Needless to say,
the charts also contain no mention of jury selection where the parties have
consented to magistrate supervision.

6
    Even if I were to accept the majority's conclusion that the scope of a
magistrate's authority under the additional duties clause turns on litigant
consent, I still could not accept the majority's assumption that there was
effective consent in this case.  Because the additional duties clause
contains no language predicating delegation of an additional duty upon
litigant consent, it likewise contains nothing indicating what constitutes
"consent" to the delegation of an additional duty.  I would think, however,
that the standard governing a party's consent to delegation of a portion of
a felony trial under the additional duties clause should be at least as
strict as that governing delegation of a misdemeanor trial to a magistrate.
Under the Act, before a magistrate can conduct a misdemeanor trial, the
magistrate must explain to the defendant that he has a right to a trial
before a district court judge.  If the defendant elects to proceed before
the magistrate, the defendant must consent in writing.  See 18 U. S. C.
MDRV 3401(b); see also 28 U. S. C. MDRV 636(a)(3) (incorporating
requirements of 18 U. S. C. MDRV 3401 into the Federal Magistrates Act).
The procedural safeguard of written consent by the defendant " `show[s] a
statutory intent to preserve trial before the district judge as the
principal -- rather than an elective or alternative -- mode of proceeding
in minor offense cases.' "  Gomez, supra, at 872, n. 24, (quoting 114 Cong.
Rec. 27342 (1968) (remarks of Rep. Poff)).  In this case, the defendant did
not consent in writing; in fact, the defendant did not proffer consent in
any form.  Instead, what the majority accepts as sufficient consent were
merely verbal remarks made by defense counsel at a pretrial conference and
jury selection.  See App. 2, 5.

7
    The majority seeks to evade this difficulty by pronouncing that Justice
Blackmun's concurring opinion in Raddatz now "control[s]" the
constitutional analysis of a delegation of Article III duties to a
magistrate.  Ante,at 14.  Justice Blackmun's opinion in Raddatz, however,
offers little repose for the majority, for Justice Blackmun likewise
identifies the availability of judicial review as a necessary predicate of
the constitutionality of any delegation of Article III duties to a
magistrate.  See United States v. Raddatz, 447 U. S., at 685 (Blackmun, J.,
concurring).





Subject: 90-615 -- DISSENT, PERETZ v. UNITED STATES

 


    SUPREME COURT OF THE UNITED STATES


No. 90-615



RAFAEL PERETZ, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the second
circuit

[June 27, 1991]



    Justice Scalia, dissenting.
    When, at a pretrial conference, the United States District Judge
assigned to this case asked petitioner's counsel (in petitioner's presence)
whether he had "[a]ny objection to picking the jury before a magistrate,"
counsel responded, "I would love the opportunity."  App. 2.  Before
conducting voir dire, the Magistrate herself asked counsel, "I have the
consent of your client to proceed with the jury selection?"  Counsel
answered "Yes, your Honor."  Id., at 5.  After the jury was selected under
the Magistrate's supervision, but before it was sworn, the parties met with
the District Judge to discuss unresolved pretrial matters.  Neither
petitioner nor his counsel raised any objection at that time -- or at any
other point during the trial -- to the Magistrate's role in jury selection.
Two significant events transpired thereafter.  First, the jury convicted
petitioner on all counts.  Second, after the conviction but prior to
sentencing, this Court announced Gomez v. United States, 490 U. S. 858
(1989), holding that the Magistrates Act did not authorize magistrates to
conduct felony voir dire (in that case, where a defendant had objected).
On appeal, petitioner sought to raise a Gomez claim, but the Court of
Appeals held that his consent below precluded him from raising this
newly-discovered objection to the Magistrate's role.
    As a general matter, of course, a litigant must raise all issues and
objections at trial.  See Freytag v. Commissioner, ante, at --- (Scalia,
J., concurring in judgment) (slip op., at 3-4).  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.  One of the hoariest
precepts in our federal judicial system is that a claim going to a court's
subject-matter jurisdiction may be raised at any point in the litigation by
any party.  See Freytag, ante, at --- (slip op., at 5) (Scalia, J.,
concurring in judgment).  Petitioner seeks to invoke that exception here,
relying on our statement in Gomez that the magistrate lacked "jurisdiction
to preside" over the voir dire in that case, 490 U. S., at 876.  But, as
Judge Easterbrook has aptly observed, " `jurisdiction' . . . is a many-hued
term."  United States v. Wey, 895 F. 2d 429, 431 (CA7), cert. denied, 497
U. S. --- (1990).  We used it in Gomez as a synonym for "authority," not in
the technical sense involving subject-matter jurisdiction.  The judgment
here is the judgment of the District Court; the relevant question is
whether it had subject-matter jurisdiction; and there is no doubt that it
had.  The fact that the court may have improperly delegated to the
Magistrate a function it should have performed personally goes to the
lawfulness of the manner in which it acted, but not to its jurisdiction to
act.
    This venerable exception to the contemporaneous-objection rule being
inapplicable here, petitioner 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 (1985).  Petitioner's contention that this case
falls into that exception comes up against our admonition that Rule 52(b)
applies only to errors that are obvious as well as significantly
prejudicial.  See, e. g., United States v. Frady, 456 U. S. 152, 163, and
nn. 13, 14 (1982).  The error alleged here was anything but obvious.  At
the time this case was tried, the Second Circuit had held that a magistrate
was authorized to conduct felony voir dire even if the defendant objected,
see United States v. Garcia, 848 F. 2d 1324 (1988), rev'd sub nom. Gomez v.
United States, 490 U. S. 858 (1989).  No Circuit had held that it was error
for a magistrate to conduct voir dire where the defendant consented.
Perhaps the best indication that there was no "plain" error, of course, is
that five Justices of this Court today hold that there was no error at all.
{1}
    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 (1962) (Opinion
of Harlan, J.); Grosso v. United States, 390 U. S. 62, 71-72 (1968); Hormel
v. Helvering, 312 U. S. 552, 556-560 (1941).  In my view, that course is
appropriate here.  Petitioner's principal claims are that the 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. MDRV 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 (1982); Webster v.
Doe, 486 U. S. 592, 612-613 (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.
    Turning to the merits of the statutory claim, I am in general agreement
with Justice Marshall.  In my view, Gomez was driven not primarily by the
constitutional problems associated with forcing a litigant to adjudicate
his federal claim before a magistrate, but by ordinary principles of
statutory interpretation.  By specifically authorizing magistrates to
perform duties in civil and misdemeanor trials, and specifying the manner
in which parties were to express their consent in those situations, the
statute suggested absence of authority to preside over felony trials
through some (unspecified) mode of consent.  The canon of ejusdem generis
keeps the "additional duties" clause from swallowing up the rest of the
statute.  See Gomez, supra, at 872.
    I would therefore conclude (as respondent in fact conceded) that
district courts are not authorized by the Magistrates Act to delegate
felony voir dire to magistrates.  Having reached that conclusion, I need
not, and do not, answer the serious and difficult constitutional questions
raised by the contrary construction.  I note, however, that while there may
be persuasive reasons why the use of a magistrate in these circumstances is
constitutional, the Court does not provide them today.  The Court's
analysis turns on the fact that courts themselves control the decision
whether and to what extent magistrates will be used.  Ante, at 13-15.  But
the Constitution guarantees not merely that no Branch will be forced by one
of the other Branches to let someone else exercise its assigned powers --
but that none of the Branches will itself alienate its assigned powers.
Otherwise, the doctrine of unconstitutional delegation of legislative power
(which delegation cannot plausibly be compelled by one of the other
Branches) is a dead letter, and our decisions in A. L. A. Schechter Poultry
Corp. v. United States, 295 U. S. 495 (1935), and Panama Refining Co. v.
Ryan, 293 U. S. 388 (1935) are inexplicable.

 
 
 
 
 



------------------------------------------------------------------------------
1
    Because I conclude that the alleged error was not "plain," I have no
occasion to assess its prejudicial impact, assuming that that is possible.
Cf. Gomez v. United States, 490 U. S., at 876; Arizona v. Fulminante, 499
U. S. ---, --- (1991).
