A Magistrate assigned by the District Judge conducted the
voir dire examination and jury selection for petitioners'
trial on multiple felony counts. The judge overruled petitioners'
objections to the assignment of the Magistrate. The judge offered
to review any of the Magistrate's rulings
de novo, but
petitioners registered no specific challenge to the selection of
any juror. After petitioners were convicted and sentenced, they
contended on appeal that the Magistrate had no power to conduct the
voir dire examination and jury selection, but made no
specific claim of prejudice. The Court of Appeals affirmed their
convictions, noting that the Federal Magistrates Act permits
district courts to assign magistrates certain described powers and
duties, as well as "such additional duties as are not inconsistent
with the Constitution and laws of the United States." The court
held that Congress intended this additional duties clause to be
construed broadly enough to include jury selection by magistrates,
adding that such a designation does not violate Article III or the
Due Process Clause.
Held:
1. Presiding at the selection of a jury in a felony trial
without the defendant's consent is not one of the "additional
duties" that the Act permits courts to assign to magistrates. Pp.
490 U. S.
863-876.
(a) Read literally and without reference to its statutory
context, the additional duties clause encompasses any assignment
that is not explicitly prohibited by statute or by the
Constitution. It is the Court's settled policy, however, to avoid
an interpretation of a federal statute that engenders
constitutional issues if a reasonable alternative interpretation
poses no constitutional question. Thus it is appropriate to examine
the Act's overall structure and purpose to determine whether any
"additional duties" assigned to a magistrate bear some reasonable
relation to the other duties that, because they are specifically
enumerated in the Act, define the attributes of the magistrate's
office.
See, e.g., Mathews v. Weber, 423 U.
S. 261. Pp.
490 U. S.
863-865.
(b) The Act's structure and legislative history demonstrate a
congressional intent to limit a magistrate's range of duties in
criminal cases
Page 490 U. S. 859
to: performing certain pretrial and post-trial functions,
subject to one of two levels of judicial review depending on the
scope and significance of the magistrate's decision; and conducting
bench and jury trials on misdemeanor charges, but only upon special
assignment by, and subject to the review of, the district court,
and only with the consent of the parties. Pp.
490 U. S.
865-871.
(c) The absence of a specific reference in the Act or its
legislative history to jury selection in felony trials demonstrates
that Congress did not intend the additional duties clause to
embrace this function.
Voir dire in a felony case is a
critical stage of the trial. However, the Act's carefully defined
grant of authority to magistrates to conduct trials of minor
criminal cases must be construed as an explicit withholding of the
authority to preside at felony trials. Even assuming that Congress
did not consider
voir dire to be part of the trial, it is
unlikely that it intended to allow a magistrate to conduct jury
selection as an "additional duty" not subject to the procedural
guidance or judicial review applicable to pretrial matters. In any
event, it is doubtful that a district judge could review the jury
selection function meaningfully, since no transcript can recapture
the atmosphere of the
voir dire. Pp.
490 U. S.
871-876.
2. There is no merit to the Government's argument that any error
was harmless because petitioners allege no specific prejudice as a
result of the Magistrate's conducting the
voir dire.
Harmless error analysis 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. P.
490 U. S.
876.
848 F.2d 1324, reversed.
STEVENS, J., delivered the opinion for a unanimous Court.
JUSTICE STEVENS delivered the opinion of the Court.
Since its enactment in 1968, the Federal Magistrates Act has
permitted district courts to assign magistrates certain described
powers and duties, as well as "such additional duties as are not
inconsistent with the Constitution and laws of
Page 490 U. S. 860
the United States." [
Footnote
1] The principal question presented is whether presiding at the
selection of a jury in a felony trial without the defendant's
consent is among those "additional duties."
I
Petitioners Jose Gomez and Diego Chavez-Tesina were among 11
persons named as defendants in a 21-count indictment alleging
commission of multiple felonies, including conspiracy and
racketeering, involving distribution of cocaine. [
Footnote 2] Having elected to stand trial,
petitioners and three codefendants appeared before the Federal
Magistrate to whom the District Judge had delegated the task of
selecting a jury. [
Footnote 3]
Defense counsel made timely objections to this assignment.
Following a telephone conversation with the District Judge, the
Magistrate noted their objections and commenced
voir dire.
App. 13-16. As is the practice in the Eastern District of New York,
the Magistrate, rather than the attorneys, posed questions to the
venirepersons. [
Footnote 4] The
Magistrate also introduced the prospective jurors to the offenses
charged; instructed them on numerous points of law, including the
presumption of innocence and the different burdens of persuasion in
civil and criminal trials; and admonished chosen jurors not to
discuss the case with anyone.
See generally Tr. of Jury
Selection. When defense counsel appeared before the
Page 490 U. S. 861
District Judge eight days later, they renewed their objections
to the Magistrate's role in jury selection. The District Judge
overruled the objections, but said he would review any of the
Magistrate's rulings
de novo. App. 19. Defendants
registered no specific challenge to any juror, and trial proceeded;
10 days later, the jury returned guilty verdicts against all five
defendants. Gomez received two concurrent 10-year sentences, to be
followed by a special 10-year parole term; Chavez-Tesina was
ordered to serve 20 years on one count, with three lesser sentences
to run concurrently, and lifetime special parole.
On appeal, defendants made no special claim of prejudice. They
contended, as petitioners do before this Court, that the Magistrate
had no power to conduct the
voir dire examination and jury
selection. A divided panel of the Court of Appeals rejected this
argument.
United States v. Garcia, 848 F.2d 1324 (CA2
1988). The court held that Congress intended the additional duties
clause to be construed broadly enough to include jury selection by
magistrates.
Id. at 1329. Such a designation, the majority
added, does not violate Article III or the Due Process Clause of
the Federal Constitution.
Id. at 1330-1333. The dissenting
judge expressed doubts concerning both the majority's statutory
interpretation and its constitutional analysis, and concluded that
the court should exercise its supervisory powers to forbid
delegation of
voir dire to magistrates "except, possibly,
when the parties consent, and then only pursuant to rules
controlling the district court's review." [
Footnote 5]
The Second Circuit's decision conflicts with the holding of the
Fifth Circuit in
United States v. Ford, 824 F.2d 1430,
1438 (1987) (en banc),
cert. denied, 484 U.
S. 1034 (1988). The Government had urged the court to
construe the additional
Page 490 U. S. 862
duties clause of the Federal Magistrates Act to allow judges to
delegate jury selection in felony trials even without the
defendant's consent. That construction would provoke "grave
constitutional questions," the en banc majority stated. 824 F.2d at
1430;
see id. at 1435. After stressing the importance of
jury selection and noting the specificity with which Congress
defined magistrates' duties regarding other judicial proceedings,
the majority concluded:
"Additional duty is a residuum, granting the power to delegate
any task not otherwise forbidden after we carve away that congery
of duties that Congress never envisioned would be delegated. We are
not persuaded that Congress intended to grant authority to judges
to delegate to magistrates the authority to preside over felony
trials and over activities integral to and intimately tied with
trial. [
Footnote 6]"
We granted certiorari to resolve this important conflict. 488
U.S. 838 (1989). [
Footnote
7]
Page 490 U. S. 863
II
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. § 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. The Act
itself specifies some proscriptions: magistrates "may hold no other
civil or military office or employment under the United States," §
631(c), nor
"engage in the practice of law [or] any other business,
occupation, or employment inconsistent with the expeditious,
proper, and impartial performance of their duties as judicial
officers,"
§ 632(a). The only legal constraint on many other assignments
not expressly barred -- whether supervising repair of the
courthouse electrical system or presiding at felony trials -- must
be found, according to the literal reading, in the Constitution.
The panel majority below and the dissenters in
Ford
embraced this construction, [
Footnote 8] despite abiding concerns regarding the
constitutionality of delegating felony trial duties to magistrates.
[
Footnote 9]
Page 490 U. S. 864
It is our settled policy to avoid an interpretation of a federal
statute that engenders constitutional issues if a reasonable
alternative interpretation poses no constitutional question.
See, e.g., Commodity Futures Trading Comm'n v. Schor,
478 U. S. 833,
478 U. S. 841
(1986);
United States v. Rumely, 345 U. S.
41,
345 U. S. 45
(1953);
Crowell v. Benson, 285 U. S.
22,
285 U. S. 62
(1932). In this case, such an alternative interpretation of the
additional duties clause readily may be deduced from the context of
the overall statutory scheme.
Cf. Massachusetts v. Morash,
ante at
490 U. S. 115
("
[I]n expounding a statute, we [are] not . . . guided by a
single sentence or member of a sentence, but look to the provisions
of the whole law, and to its object and policy"') (quoting
Pilot Life Insurance Co. v. Dedeaux, 481 U. S.
41, 481 U. S. 51
(1987); Richards v. United States, 369 U. S.
1, 369 U. S. 11
(1962)). 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,
447 U. S.
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.
In
Mathews, we considered whether preliminary review,
argument, and preparation of recommended decisions in Social
Security benefits cases were among the "additional duties" that a
magistrate could perform. The Government opposed such referrals,
arguing that Congress intended a magistrate to be a
"
supernotary,'" assuming only the district judge's "irksome,
ministerial tasks," [Footnote
10] while the benefits
Page 490 U. S.
865
claimant likened the magistrate to a "`para-judge'" with "a
wide range of substantive judicial duties and advisory functions."
423 U.S. at 423 U. S. 268.
Declining to choose either extreme or to read the "additional
duties" language literally, we examined the Act's structure and
determined that limited, advisory review, subject to the district
judge's ongoing supervision and final decision, fell among the
"range of duties" that Congress intended magistrates to perform.
Id. at 423 U. S. 270.
In accordance with our reasoning in Mathews, our task is
to consider the office of magistrate as it pertains to seating a
jury in a felony case.
III
Before 1968, minor federal legal disputes were settled by United
States commissioners, who collected fees for their services and
often were not lawyers. Limitations on their jurisdiction resulted
in the downgrading or dismissal of criminal offenses that otherwise
would have to be tried by district judges. H.R.Rep. No. 1629, 90th
Cong., 2d Sess., p. 14 (1968). The new office of magistrate, in
contrast, was to be filled in most instances by attorneys. 82 Stat.
1108, 28 U.S.C. § 631(b) (1964 ed., Supp. IV). Paid by salary,
magistrates were to be appointed by district judges to definite
terms from which they could be removed only for cause. 82 Stat.
1109, 28 U.S.C. §§ 631(e), (h).
With enhanced status came greater responsibility. The Act not
only conferred upon magistrates all the powers that commissioners
had enjoyed, § 636(a), but also permitted district courts to
establish rules by which magistrates could be assigned
"such additional duties as are not inconsistent with the"
Constitution and laws of the United States. The additional
Page 490 U. S. 866
duties authorized by rule may include, but are not restricted to
--
"(1) service as a special master in an appropriate civil action,
pursuant to the applicable provisions of this title and the Federal
Rules of Civil Procedure for the United States district
courts;"
"(2) assistance to a district judge in the conduct of pretrial
or discovery proceedings in civil or criminal actions; and"
"(3) preliminary review of applications for post-trial relief
made by individuals convicted of criminal offenses, and submission
of a report and recommendations to facilitate the decision of the
district judge having jurisdiction over the case as to whether
there should be a hearing."
§ 636(b). Commissioners had tried only "petty offenses."
[
Footnote 11] Magistrates
were empowered to try "minor offenses," [
Footnote 12] but only upon special designation by the
district court and only if the defendant, in writing, specifically
waived his or her rights to trial before a judge, and perhaps by a
jury. 82 Stat. 1116, 18 U.S.C. § 3401(b) (1964 ed., Supp. IV). A
convicted defendant could appeal to the district court, § 3402, and
Congress contemplated that district courts would retain "the
greatest possible scrutiny and control of a magistrate's trial
jurisdiction," H.R.Rep. No. 1629, at 21. [
Footnote 13] Exempted from that
Page 490 U. S. 867
jurisdiction were a number of minor offenses -- such as bribery
and public corruption, deprivation of rights under color of law,
and jury tampering, 82 Stat. 1116, 18 U.S.C. § 3401(f) (1964 ed.,
Supp. IV) -- that required the exercise of delicate judgment and
"as a matter of sound congressional policy, ought to be tried in
the U.S. district courts." H.R.Rep. No. 1629, at 22.
In 1976, Congress amended the Act "to clarify and further define
the additional duties which may be assigned to a United States
Magistrate," [
Footnote 14]
H.R.Rep. No. 94-1609, p. 2 (1976). [
Footnote 15] Upon consent of the parties, a magistrate
could be
Page 490 U. S. 868
designated a special master in any civil case. 90 Stat. 2729, 28
U.S.C. § 636(b)(2) (1976 ed.). A magistrate also could be assigned
to "hear and determine any pretrial matter," [
Footnote 16] subject to reconsideration by the
district court on a showing that "the magistrate's order is clearly
erroneous or contrary to law." § 636(b)(1)(A). Excepted were eight
categories of "dispositive" pretrial motions; with regard to these,
a magistrate might conduct evidentiary and other hearings and
recommend
Page 490 U. S. 869
dispositions. § 636(b)(1)(B). If a party objected to the
magistrate's recommendation, the judge was to "make a de novo
determination" of the matter. § 636(b)(1)(C). The 1968 Act had
listed such functions among a magistrate's additional duties; the
1976 amendments, in contrast, first described specific duties and
then stated in a separate subsection that a "magistrate may be
assigned such additional duties as are not inconsistent with the
Constitution and laws of the United States." § 636(b)(3). A
Committee Report explained:
"Under this subsection, the district courts would remain free to
experiment in the assignment of other duties to magistrates which
may not necessarily be included in the broad category of 'pretrial
matters.' This subsection would permit, for example, a magistrate
to review default judgments, order the exoneration or forfeiture of
bonds in criminal cases, and accept returns of jury verdicts where
the trial judge is unavailable. This subsection would also enable
the court to delegate some of the more administrative functions to
a magistrate, such as the appointment of attorneys in criminal
cases and assistance in the preparation of plans to achieve prompt
disposition of cases in the court."
"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."
H.R.Rep. No. 94-1609, at 12.
By 1979, congressional concerns regarding magistrates' abilities
had decreased; a legislative Committee reported that "the
magistrate system now plays an integral and important role in the
Federal judicial system." [
Footnote 17] H.R.Rep. No. 96287, p. 5 (1979).
Accordingly, in the Federal Magistrates
Page 490 U. S. 870
Act of 1979, Pub.L. 96-82, 93 Stat. 643-647, Congress enlarged
the magistrate's jurisdiction over civil and criminal trials,
codifying some of the experiments conducted under the Act's
additional duties clause.
See H.R.Rep. No. 96287, at 2,
17. Thus, since 1979, magistrates have been authorized to preside
at, and enter final judgment in, civil trials, including those
tried before a jury. 93 Stat. 643-644, 28 U.S.C. § 636(c). For the
first time, magistrates were permitted to conduct jury, as well as
bench, trials on any misdemeanor charge. [
Footnote 18] 93 Stat. 646, 18 U.S.C. § 3401(b). As
before, however, a magistrate's trial jurisdiction can be exercised
only upon special designation by the district court, 93 Stat. 643,
28 U.S.C. § 636(c)(1); 93 Stat. 645, 18 U.S.C. § 3401(a), and it
remains subject to judicial review. [
Footnote 19]
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. § 636(c)(2). In criminal cases, the
Government may petition for trial before a district judge.
[
Footnote 20] "Defendants
charged with misdemeanors
Page 490 U. S. 871
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. [
Footnote
21]
IV
Through gradual congressional enlargement of magistrates'
jurisdiction, the Federal Magistrates Act now expressly authorizes
magistrates to preside at jury trials of all civil disputes and
criminal misdemeanors, subject to special assignment, consent of
the parties, and judicial review. The Act further details
magistrates' functions regarding pretrial and post-trial matters,
specifying two levels of review depending on the scope and
significance of the magistrate's decision. The district court
retains the power to assign to magistrates unspecified "additional
duties," subject only to conditions or review that the court may
choose to impose. By a literal reading, this additional duties
clause would permit magistrates
Page 490 U. S. 872
to conduct felony trials. But the carefully defined grant of
authority to conduct trials of civil matters and of minor criminal
cases should be construed as an implicit withholding of the
authority to preside at a felony trial. [
Footnote 22] The legislative history, with its
repeated statements that magistrates should handle subsidiary
matters to enable district judges to concentrate on trying cases,
[
Footnote 23] and its
assurances that magistrates' adjudicatory jurisdiction had been
circumscribed in the interests of policy as well as constitutional
constraints, [
Footnote 24]
confirms this inference. Similar considerations lead us to conclude
that Congress also did not contemplate inclusion of jury selection
in felony trials among a magistrate's additional duties. [
Footnote 25]
Even though it is true that a criminal trial does not commence
for purposes of the Double Jeopardy Clause until the jury is
empaneled and sworn,
Serfass v. United
States, 420
Page 490 U. S. 873
U.S. 377,
420 U. S. 388
(1975), other constitutional rights attach before that point,
see, e.g., Brewer v. Williams, 430 U.
S. 387,
430 U. S. 398
(1977) (assistance of counsel). Thus, in affirming
voir
dire as a critical stage of the criminal proceeding, during
which the defendant has a constitutional right to be present, the
Court wrote: "
[W]here the indictment is for a felony, the trial
commences at least from the time when the work of empanelling the
jury begins.'" Lewis v. United States, 146 U.
S. 370, 146 U. S. 374
(1892) (quoting Hopt v. Utah, 110 U.
S. 574, 110 U. S. 578
(1884)). See Swain v. Alabama, 380 U.
S. 202, 380 U. S. 219
(1965) (voir dire "a necessary part of trial by jury");
see also Ricketts v. Adamson, 483 U. S.
1, 483 U. S. 3
(1987); United States v. Powell, 469 U. S.
57, 469 U. S. 66
(1984). Jury 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, Rosales-Lopez v. United
States, 451 U. S. 182,
451 U. S. 188
(1981), Ham v. South Carolina, 409 U.
S. 524 (1973), Dennis v. United States,
339 U. S. 162
(1950), or predisposition about the defendant's culpability,
Irvin v. Dowd, 366 U. S. 717
(1961). Indications that Congress likewise considers jury selection
part of a felony trial may be gleaned, inter alia, from
its passage in 1975 of the Speedy Trial Act, 18 U.S.C. § 3161
et seq. (1982 ed. and Supp. V), [Footnote 26] and its placement of rules pertaining to
criminal petit juries in a chapter entitled "Trial." See
Fed.Rules Crim. Proc. 23, 24; cf. id. Rule 43(a)
(requiring defendant's presence "at every stage of the trial
including the empaneling of the jury").
Even assuming that Congress did not consider
voir dire
to be part of trial, it is unlikely that it intended to allow a
magistrate to conduct jury selection without procedural guidance or
judicial review. Significantly, when Congress clarified the
magistrate's duties in 1976, it did not identify the selection of a
jury as either a "dispositive" matter covered by
Page 490 U. S. 874
§ 636(b)(1)(B) or a "nondispositive" pretrial matter governed by
§ 636(b)(1)(A). To the limited extent that it fits into either
category, we believe jury selection is more akin to those precisely
defined, "dispositive" matters for which subparagraph (B)
meticulously sets forth a
de novo review procedure.
[
Footnote 27] It is
incongruous to assume that Congress implicitly required such review
for jury selection, yet failed even to mention that matter in the
statute. It is equally incongruous to assume, in the alternative,
that Congress intended not to require any review -- not even the
less stringent clearly erroneous standard applicable to other
pretrial matters [
Footnote
28] -- of a magistrate's selection of a jury. Yet one of those
assumptions would be a necessary component of a conclusion that
Congress intended jury selection to be one of a magistrate's
additional duties.
In any event, we harbor serious doubts that a district judge
could review this function meaningfully. Far from an administrative
empanelment process,
voir dire represents jurors' first
introduction to the substantive factual and legal issues in a case.
To detect prejudices, the examiner -- often, in the federal system,
the court -- must elicit from prospective
Page 490 U. S. 875
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.
See, e.g., Wainwright v. Witt, 469 U.
S. 412,
469 U. S. 428,
n. 9 (1985) (quoting
Reynolds v. United States,
98 U. S. 145,
98 U. S.
156-157 (1879)). But only words can be preserved for
review; no transcript can recapture the atmosphere of the
voir
dire, which may persist throughout the trial. [
Footnote 29]
Cf. Waller v.
Georgia, 467 U. S. 39,
467 U. S. 49, n.
9 (1984) ("While the benefits of a public trial are frequently
intangible, difficult to prove, or a matter of chance, the Framers
plainly thought them nonetheless real"). The absence of a specific
reference to jury selection in the statute, or indeed, in the
legislative history, [
Footnote
30] persuades us that Congress
Page 490 U. S. 876
did not intend the additional duties clause to embrace this
function.
V
The Government concedes, as it must, that errors occurring
during jury selection may be grounds for reversal of a conviction.
Brief for United States 44, n. 41 (citing
Batson v.
Kentucky, 476 U. S. 79,
476 U. S. 85
(1986);
Witherspoon v. Illinois, 391 U.
S. 510,
391 U. S. 522
(1968)). Yet it argues that any error in these cases was harmless,
because petitioners allege no specific prejudice as a result of the
Magistrate's conducting the
voir dire examination. Brief
for United States 42-45. We find no merit to this argument. Among
those basic fair trial rights that "
can never be treated as
harmless'" is a defendant's "right to an impartial adjudicator, be
it judge or jury." Gray v. Mississippi, 481 U.
S. 648, 481 U. S. 668
(1987) (quoting Chapman v. California, 386 U. S.
18, 386 U. S. 23
(1967)). Equally basic is a defendant's right to have all critical
stages of a criminal trial conducted by a person with jurisdiction
to preside. Thus, harmless error analysis 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.
The judgment of the Court of Appeals is
Reversed.
* Together with No. 88-5158,
Chavez-Tesina v. United
States, also on certiorari to the same court.
[
Footnote 1]
Pub.L. 90-578, 82 Stat. 1108,
as amended, 28 U.S.C. §
636(b)(3).
[
Footnote 2]
Both petitioners were charged with conspiracy to distribute, and
actual distribution of, cocaine, in violation of 21 U.S.C. §§ 841,
846 (1982 ed. and Supp. V). In addition, petitioner Chavez-Tesina
was charged with violating the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962(c), and the Travel Act, 18
U.S.C. § 1952 (1982 ed. and Supp. V).
United States v.
Garcia, 848 F.2d 1324, 1327 (CA2 1988).
[
Footnote 3]
Cited as authority for the assignment was a local rule that
states: "Full-time magistrates shall have jurisdiction to discharge
the duties set forth in 28 U.S.C. Sec 636." Fed.Local Ct.Rule 1
(EDNY 1988);
see Garcia, 848 F.2d at 1327.
[
Footnote 4]
Garcia, 848 F.2d at 1338 (Oakes, J., dissenting).
Cf. Fed.Rule Crim.Proc. 24(a).
[
Footnote 5]
Garcia, 848 F.2d at 1338 (Oakes, J.).
Cf. United
States v. Ford, 824 F.2d 1430, 1440 (CA5 1987) (en banc)
(Jolly, J., concurring in result) ("[I]t might be appropriate and
wise for federal courts, in their supervisory capacity, to enact
rules curtailing, or even precluding the use of magistrates at
voir dire in certain situations"),
cert. denied,
484 U. S. 1034
(1988).
[
Footnote 6]
24 F.2d at 1438. Nonetheless, because the defendant failed to
object and "the trial was fundamentally fair," the court held that
the Magistrate's participation was harmless error, and affirmed the
conviction.
Id. at 1439;
accord, ibid. (Jolly,
J., concurring in result). In dissent, four judges maintained that
the delegation fell within the express scope of the statute, and
withstood constitutional scrutiny.
Id. at 1440-1448
(Rubin, J.).
[
Footnote 7]
The Eighth Circuit has followed the Fifth Circuit in
Ford, while two Ninth Circuit opinions decide the issue
much as the Second Circuit did below.
Compare United States v.
Trice, 864 F.2d 1421 (CA8 1988),
with United States v.
Peacock, 761 F.2d 1313 (CA9),
cert. denied, 474 U.S.
847 (1985);
United States v. Bezold, 760 F.2d 999 (CA9
1985),
cert. denied, 474 U.S. 1063 (1986).
See also
United States v. Rodriguez-Suarez, 856 F.2d 135 (CA11 1988)
(because no assertion of prejudice, declines to reach merits of
claim),
cert. denied, 488 U.S. 1045 (1989). In other
opinions, Courts of Appeals have rejected challenges to a
magistrate's presiding over jury selection on procedural grounds.
United States v. Rivera-Sola, 713 F.2d 866 (CA1 1983)
(defendant failed to object, no plain error);
United States v.
DeFiore, 720 F.2d 757 (CA2 1983) (failure to object),
cert. denied sub nom. Coppola v. United States, 466 U.S.
906 (1984).
[
Footnote 8]
Garcia, 848 F.2d at 1329 (quoting
In re
Establishment Inspection of Gilbert & Bennett Manufacturing
Co., 589 F.2d 1335, 1340-1341 (CA7) (in sustaining inspection
warrant issued by Magistrate, states that the "
only limitations
on section 636(b)(3) are that the duties be consistent with the
Constitution and federal laws, and that they not be specifically
excluded by section 636(b)(1)'"), cert. denied sub nom.
Chromalloy American Corp., Federal Malleable Div. v. Marshall,
444 U.S. 884 (1979)); Ford, 824 F.2d at 1441 (Rubin,
J.).
[
Footnote 9]
See, e.g., Hearings on S. 3475
et al. before
the Subcommittee on Improvements in Judicial Machinery of the
Senate Judiciary Committee, 89th Cong., 2d Sess. and 90th Cong.,
1st Sess., p. 109 (1966-1967) (statement of Assistant Attorney
General Vinson) (magistrates' jurisdiction to try minor criminal
offenses unconstitutional even with defendant's waiver of rights);
H.R.Rep. No. 1629, 90th Cong., 2d Sess., p. 21 (1968) (disagreeing
with Vinson); 114 Cong.Rec. 27338-27343 (1968).
See also
Ford, 824 F.2d at 1437; H.R.Rep. No. 96-287, pp. 32-33 (1979)
(dissenting views of Rep. Sensenbrenner).
[
Footnote 10]
The Government had argued:
"In the Magistrates Act, Congress gave magistrates only a
limited role in the operation of the federal judicial system.
District courts were not authorized to delegate to the magistrates
all judicial functions that they deemed appropriate. Rather, the
role of the magistrates was to assist, and lighten the workload of,
district judges by performing relatively minor functions. The
statutory phrase authorizing the district courts to assign to
magistrates 'duties . . . not inconsistent with the Constitution
and laws of the United States' must be read narrowly to reflect the
limitations imposed upon the magistrates."
Brief for Petitioner in
Mathews v. Weber, O.T. 1975,
No. 74-850, p. 8.
[
Footnote 11]
"Petty offenses" included
"[a]ny misdemeanor, the penalty for which . . . does not exceed
imprisonment for a period of six months or a fine of not more than
$500, or both,"
18 U.S.C. § 1(3) (1964 ed.),
repealed by Pub.L. 98-473,
§ 218(a)(1), 98 Stat. 2027.
[
Footnote 12]
"'[M]inor offenses' means misdemeanors punishable under the laws
of the United States, the penalty for which does not exceed
imprisonment for a period of one year, or a fine of not more than
$1,000, or both,"
82 Stat. 1116, 18 U.S.C. § 3401(f) (1964 ed., Supp. IV).
[
Footnote 13]
"The district judges may, for instance, exercise a veto power
over the magistrate's jurisdiction in particular cases, require
reports on cases pending before the magistrate, establish uniform
procedures to be followed by all magistrates exercising minor
offense trial jurisdiction, and generally supervise the magistrate
in the exercise of his trial jurisdiction."
H.R.Rep. No. 1629, at 21.
[
Footnote 14]
In part, Congress intended to overturn judicial opinions
limiting the scope of the Act, including
Wingo v. Wedding,
418 U. S. 461
(1974) (magistrates not authorized to conduct evidentiary hearings
in federal habeas corpus actions). H.R.Rep. No. 94-1609, p. 5
(1976); S.Rep. No. 94-625, pp. 3-4 (1976). Our holding in
Mathews v. Weber, 423 U. S. 261
(1976) (Act authorizes magistrates to review and recommend
disposition on Social Security benefits appeals), meanwhile,
garnered approval. H.R.Rep. No. 94-1609, at 6.
[
Footnote 15]
The relevant part of the 1976 Act, which has not been amended,
reads as follows:
"
An Act"
"
To improve judicial machinery by further defining the
jurisdiction"
"
of United States magistrates, and for other
purposes."
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That
section 636(b) of title 28, United States Code, is amended to read
as follows:"
"
* * * *"
"(b)(1) Notwithstanding any provision of law to the contrary --
"
"(A) a judge may designate a magistrate to hear and determine
any pretrial matter pending before the court, except a motion for
injunctive relief, for judgment on the pleadings, for summary
judgment, to dismiss or quash an indictment or information made by
the defendant, to suppress evidence in a criminal case, to dismiss
or to permit maintenance of a class action, to dismiss for failure
to state a claim upon which relief can be granted, and to
involuntarily dismiss an action. A judge of the court may
reconsider any pretrial matter under this subparagraph (A) where it
has been shown that the magistrate's order is clearly erroneous or
contrary to law."
"(B) a judge may also designate a magistrate to conduct
hearings, including evidentiary hearings, and to submit to a judge
of the court proposed findings of fact and recommendations for the
disposition, by a judge of the court, of any motion excepted in
subparagraph (A), of applications for posttrial relief made by
individuals convicted of criminal offenses and of prisoner
petitions challenging conditions of confinement."
"(C) the magistrate shall file his proposed findings and
recommendations under subparagraph (B) with the court and a copy
shall forthwith be mailed to all parties."
"Within ten days after being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the court
shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate. The judge may also receive further evidence or
recommit the matter to the magistrate with instructions."
"(2) A judge may designate a magistrate to serve as a special
master pursuant to the applicable provisions of this title and the
Federal Rules of Civil Procedure for the United States district
courts. A judge may designate a magistrate to serve as a special
master in any civil case, upon consent of the parties, without
regard to the provisions of rule 53(b) of the Federal Rules of
Civil Procedure for the United States district courts."
"(3) A magistrate may be assigned such additional duties as are
not inconsistent with the Constitution and laws of the United
States."
90 Stat. 2729, 28 U.S.C. § 636.
[
Footnote 16]
A table in a Committee Report listed the following as criminal
pretrial matters handled by magistrates: arrest warrants, search
warrants, bail hearings, preliminary examinations, removal
hearings, postindictment arraignments, pretrial conferences, and
pretrial motions. H.R.Rep. No. 94-1609, at 7;
see id. at
9.
[
Footnote 17]
Accord, S.Rep. No. 96-74, pp. 3, 6 (1979).
But
see H.R.Rep. No. 96287, at 31-33 (dissenting views of Rep.
Holtzman and Rep. Sensenbrenner).
[
Footnote 18]
"A misdemeanor is any offense for which the maximum term of
imprisonment that may be imposed does not exceed one year. An
unlimited fine may also be imposed."
Id. at 17.
Accord, 18 U.S.C. § 3559(a) (1982
ed., Supp. V).
[
Footnote 19]
Losing civil litigants are entitled to appeal to the district
court or directly to the court of appeals, and to seek
discretionary review before this Court. 93 Stat. 643-644, 28 U.S.C.
§§ 636(c)(3)-(6). Convicted defendants may take an appeal as of
right to the district court. 18 U.S.C. § 3402.
[
Footnote 20]
Whereas the 1968 Act had excluded certain minor offenses from
the magistrate's jurisdiction, the 1979 amendments relaxed this
requirement, providing:
"The district court may order that proceedings in any
misdemeanor case be conducted before a district judge rather than a
United States magistrate upon the court's own motion or, for good
cause shown, upon petition by the attorney for the Government. Such
petition should note the novelty, importance, or complexity of the
case, or other pertinent factors, and be filed in accordance with
regulations promulgated by the Attorney General."
93 Stat. 646, 18 U.S.C. § 3401(f). United States Department of
Justice regulations require that, in cases involving many of the
offenses excluded in the 1968 Act, the
"attorney for the government shall consult with the Assistant
Attorney General having supervisory authority over the subject
matter in determining whether to petition for trial before a
district judge."
28 CFR § 52.02(b)(2) (1988).
[
Footnote 21]
As amended, the statute states:
"Any person charged with a misdemeanor may elect, however, to be
tried before a judge of the district court for the district in
which the offense was committed. The magistrate shall carefully
explain to the defendant that he has a right to trial, judgment,
and sentencing by a judge of the district court, and that he may
have a right to trial by jury before a district judge or
magistrate. The magistrate shall not proceed to try the case unless
the defendant, after such explanation, files a written consent to
be tried before the magistrate that specifically waives trial,
judgment, and sentencing by a judge of the district court."
93 Stat. 646, 18 U.S.C. § 3401(b).
Cf. H.R.Rep. No.
96-287, at 20 ("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").
[
Footnote 22]
The Government concedes this point.
See Tr. of Oral
Arg. 30-31, 37; Brief for United States 14.
[
Footnote 23]
See, e.g., n. 16,
supra; H.R.Rep. No. 94-1609,
at 7 (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, at 12 (purpose of 1968 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").
[
Footnote 24]
See 114 Cong.Rec. 27342 (1968) (remarks of Rep. Poff)
("The intricate safeguards, the constitutional warnings, the
statutory explanations, the written waivers and written elections
required before the magistrate may exercise his trial jurisdiction
in the individual case -- all show 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");
id. at 27338-27343; H.R.Rep. No. 1629, at
21-22.
[
Footnote 25]
Because we decide that the Federal Magistrates Act does not
allow the delegation of jury selection to magistrates, we need not
consider the second question presented in this case,
i.e.,
whether such a delegation would be constitutional.
Cf.
Mathews, 423 U.S. at
423 U. S. 269,
n. 5;
Wingo, 418 U.S. at
418 U. S. 467,
n. 4.
[
Footnote 26]
See United States v. Howell, 719 F.2d 1258, 1262 (CA5
1983) (for Speedy Trial Act purposes, trial commences at
voir
dire),
cert. denied, 467 U.S. 1228 (1984).
[
Footnote 27]
Like motions to suppress evidence, petitions for writs of habeas
corpus, and other dispositive matters entailing evidentiary
hearings, jury selection requires the adjudicator to observe
witnesses, make credibility determinations, and weigh contradictory
evidence.
See Wainwright v. Witt, 469 U.
S. 412 (1985). Clearly it is more difficult to review
the correctness of a magistrate's decisions on these matters than
on pretrial matters, such as discovery motions, decided solely by
reference to documents.
[
Footnote 28]
Having concluded, n.
27
supra, that jury selection is more like the dispositive
matters governed by § 636(b)(1)(B), we agree with the Eighth
Circuit that "[s]ubparagraph (A) was plainly intended for less
important matters than
voir dire,"
Trice, 864
F.2d at 1428, and deem meritless the Government's contention --
advanced for the first time in this litigation before this Court --
that jury selection is among the pretrial matters that a magistrate
may "hear and determine," subject to review only for mistakes that
are clearly erroneous or contrary to law.
See Brief for
United States 7-11, and n. 7; Tr. of Oral Arg. 37.
[
Footnote 29]
See Note, 102 Harv.L.Rev. 533, 538-539 (1988). Thus,
magistrates' participation in jury
voir dire differs
palpably from their preliminary review -- which district judges
easily may examine before making a final decision -- of "closed
administrative record[s]" in Social Security cases, a function
clearly within the additional duties contemplated by Congress.
See Mathews, 423 U.S. at
423 U. S.
270-271.
In
United States v. Raddatz, 447 U.
S. 667,
447 U. S. 680
(1980), we noted that a judge, if troubled by the credibility
determinations a magistrate made during a suppression hearing,
could rehear the witnesses. Although a judge similarly could
question jurors further, as a practical matter a second
interrogation might place jurors on the defensive, engendering
prejudices irrelevant to the facts adduced at trial.
See
Garcia, 848 F.2d at 1337 (Oakes, J., dissenting). Even
assuming that a district judge could review the magistrate's
actions meaningfully by examining the transcript or reexamining
jurors, the time consumed by such review would negate time
initially saved by the delegation.
See Ford, 824 F.2d at
1437.
[
Footnote 30]
Although Committee Reports, for example, often include charts
listing magistrates' duties, none mentions jury selection.
See H.R.Rep. No. 96287, at 4-5; S.Rep. No. 96-74, at 3;
H.R.Rep. 94-1609, at 7; S.Rep. 94-625, at 5. The legislative
history's lone reference to
voir dire as a magistrate's
duty appears to occur in a letter from the Chief Judge of the
District of Oregon, to which a Committee Report referred favorably.
H.R.Rep. No. 94-1609, at 9. The letter suggests that a magistrate
selected juries only with consent of the parties, perhaps only in
civil trials. Furthermore, it 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?"
Hearing on S. 1283 before the Subcommittee on Improvements in
Judicial Machinery of the Senate Judiciary Committee, 94th Cong.,
1st Sess., pp. 39-40 (1975).