In
Gomez v. United States, 490 U.
S. 858, this Court 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 policies
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
Page 501 U. S. 924
requesting the presence of a trial judge at all critical stages
of his felony trial. Pp.
501 U. S.
932-936.
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,
478 U. S. 848.
Cf. also, e.g., United States v. Gagnon, 470 U.
S. 522,
470 U. S. 528.
In addition, none of Article III's structural protections are
implicated by this procedure. The entire process takes place under
the total control and jurisdiction 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
447 U. S. 681,
n. 7. Pp.
501 U. S.
936-939.
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,
post, p.
501 U. S. 940.
SCALIA, J., filed a dissenting opinion,
post, p.
501 U. S.
952.
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." [
Footnote 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
Page 501 U. S. 925
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. [
Footnote 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).
Page 501 U. S. 926
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. 906 (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 Virginia Islands v.
Williams, 892 F.2d 305, 310 (3d Cir.1989) (absent demand, no
constitutional difficulty under § 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
Page 501 U. S. 927
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 United States v.
France, 495 U.S. 903 (1990). Earlier this Term, we affirmed
that judgment by an equally divided Court,
United States v.
France, 498 U. S. 335
(1991). Thereafter, we granted certiorari in this case and directed
the parties to address the following three questions:
"1. Does 28 U.S.C. § 636 permit a magistrate to conduct the
voir dire in a felony trial if the defendant
consents?"
"2. If 28 U.S.C. § 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 498 U.S. 1066 (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 490 U. S. 860
(emphasis added). We held that a magistrate "exceeds his
jurisdiction" by selecting a jury "despite the defendant's
objection." Id. at 490 U. S. 876.
Thus, our holding was carefully limited to the situation in which
the
Page 501 U. S. 928
parties had not acquiesced at trial to the Magistrate's role.
[
Footnote 3] This particular
question had divided the Courts of Appeals.
See id. at
490 U. S.
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. [
Footnote 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
490 U. S.
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. 136,
500 U. S. 142
(1991).
"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 Virginia Islands v. Williams, 892
F.2d 305, 308 (1989). [
Footnote
5]
Page 501 U. S. 929
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
490 U. S. 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. [
Footnote 6]
The principle of constitutional avoidance led
Page 501 U. S. 930
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. 173,
500 U. S. 223
(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 § 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
490 U. S. 872,
and n. 25,
490 U. S.
875-876.
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. [
Footnote 7] Carefully reviewing the duties that
magistrates
Page 501 U. S. 931
were expressly authorized to perform,
see id. at
490 U. S.
865-871, we focused on the fact that those specified
duties that were comparable to jury selection in a felony trial
cold be performed only with the consent of the litigants. [
Footnote 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
490 U. S. 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
490 U. S.
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. § 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
490 U. S.
870-871 (footnote omitted).
Page 501 U. S. 932
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
490 U. S. 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
501 U. S. 925.
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
501 U.
S. 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
Page 501 U. S. 933
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
501 U. S.
supra, 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
Virginia 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
Page 501 U. S. 934
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. [
Footnote 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). [
Footnote 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
Page 501 U. S. 935
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 Virginia 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. § 636(b)(3) if the litigants consent.
[
Footnote 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. [
Footnote
12] However, when a
Page 501 U. S. 936
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,
478 U. S. 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,
470 U. S. 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,
362 U. S. 619
(1960) (failure to object to closing of courtroom is waiver of
right to public trial);
Segurola v. United States,
275 U. S. 106,
275 U. S. 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 post-arrest 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,
321 U. S. 444
(1944) ("No procedural principle is more familiar to this Court
than that a constitutional right may be forfeited in
Page 501 U. S. 937
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
478 U. S.
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. § 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,
447 U. S. 683
(1980). The decision whether to empanel the jury whose selection 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
447 U. S. 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,
337 U. S.
644 (1949) (Vinson, C.J., dissenting). . . ."
Schor, 478 U.S. at
478 U. S.
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
Page 501 U. S. 938
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. § 636(b)(1). Moreover, the
magistrate himself is subject to the Art. III judge's control.
Magistrates are appointed by district judges, § 631(a), and subject
to removal by them, § 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.' § 636(b)(4). . . ."
"It is also significant that the Magistrates Act imposes
significant requirements to ensure competency and impartiality, §§
631(b), (c), and (i), 632, 637 (1976 ed. and Supp. II), including a
rule generally barring reduction of salaries of full-time
magistrates, § 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
501 U. S. 703 (dissenting
opinion). Rather, we confront a procedure under which Congress has
vested
Page 501 U. S. 939
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
447 U. S.
685-686.
Unlike the provision of the Federal Magistrates Act that we
upheld in
Raddatz, § 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. § 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
447 U. S. 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
447 U. S. 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.
Page 501 U. S. 940
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. [
Footnote
13]
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
Pub.L. 90-578, 82 Stat. 1108, as amended, 28 U.S.C. §
636(b)(3).
[
Footnote 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.
[
Footnote 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.'"
490 U.S. at
490 U. S. 860]
(emphasis added);
see also id. at [
490 U. S. 876]
(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 Virginia Islands v. Williams, 892
F.2d 305, 308-309 (1989).
[
Footnote 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).
[
Footnote 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 Virginia Islands v. Williams, 892
F.2d at 308.
[
Footnote 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, § 1, serves both to protect 'the role of the
independent judiciary within the constitutional scheme of
tripartite government.'
Thomas v. Union Carbide Agricultural
Products Co., 473 U. S. 568,
473 U. S.
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,
449 U. S. 218 (1980).
See also Thomas, supra, at
473 U. S.
582-583;
Northern Pipeline, 458 U.S. at
458 U. S. 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, § l'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
458 U. S.
90 (REHNQUIST, J., concurring in judgment) (noting lack
of consent to non-Article III jurisdiction);
id. at
458 U. S. 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, § 1, 'was designed as a protection for the
parties from the risk of legislative or executive pressure on
judicial decision').
Cf. 285 U. S. Benson, [
285 U.S.
22,
285 U. S. 87 (1932)]
(Brandeis, J., dissenting)."
Id. at
478 U. S.
848.
[
Footnote 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. § 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,
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."
Gomez v. United States, 490 U.S. at
490 U. S.
863-864.
[
Footnote 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").
[
Footnote 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").
[
Footnote 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).
[
Footnote 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,
490 U. S.
875-876, n. 30 (1989) (emphasis added) (citing H.R.Rep.
No. 94-1609, p. 9 (1976)).
[
Footnote 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
490 U. S.
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
490 U. S. 874,
n. 27, and therefore present equivalent problems for judicial
oversight.
[
Footnote 13]
See, e.g., United States v. Alvarado, 923 F.2d 253 (CA2
1991);
Government of the Virginia 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 at
1439-1440 (Jolly, J., concurring).
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. § 636(b)(3), 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).
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
Page 501 U. S. 941
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. §
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
490 U. S.
875-876 (footnote omitted). In my view, the existence of
a defendant's consent has absolutely no effect on that
conclusion.
Page 501 U. S. 942
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
490 U. S.
864-865. Relying on precedent 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
490 U. S.
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). [
Footnote 2/1]
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
Page 501 U. S. 943
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. §§ 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
490 U. S. 872.
And in light of the traditional judicial and legislative
understanding that jury selection is an essential component of a
felony trial, [
Footnote 2/2] we
determined that Congress' intention to deny magistrates the
authority to preside at felony trials also extends to jury
selection.
See id. at
490 U. S.
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. §
3401(b); 28 U.S.C. § 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.
Page 501 U. S. 944
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. § 636(b)(1)(A), and
"
de novo" for magistrate resolution of dispositive
matters,
see § 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
490 U. S.
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
501 U. S. 939.
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
490 U. S. 873.
We expressed "serious doubts," however, as to whether any review
could be meaningfully conducted.
Id. at
490 U. S. 874.
[
Footnote 2/3] We likewise
concluded that reexamination
Page 501 U. S. 945
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
490 U. S. 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.
[
Footnote 2/4]
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
490 U. S. 875.
See ante at
501 U. S. 930.
The legislative history of the Act offers no more support for
consented-to magistrate felony jury selection. [
Footnote 2/5]
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
Page 501 U. S. 946
magistrates.
Ante at
501 U. S. 935,
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
490 U. S. 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
490 U. S. 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 at
501 U. S. 932.
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.
Page 501 U. S. 947
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
501 U. S. 933.
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
501 U. S.
942-943, 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.
[
Footnote 2/6]
Page 501 U. S. 948
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 501 U. S. 934.
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
501 U. S. 942.
By creating authority for magistrates to preside over a "critical
stage" of the felony trial, see Gomez, supra, at
490 U. S. 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 --
Page 501 U. S. 949
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
490 U. S. 864;
accord, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Construction Trades Council, 485 U.
S. 568,
485 U. S. 575
(1988);
Commodity Futures Trading Comm'n v. Schor,
478 U. S. 833,
478 U. S. 841
(1986);
Ashwander v. TVA, 297 U.
S. 288,
297 U. S. 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,
458 U. S. 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
490 U. S. 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
501 U. S. 932.
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
Page 501 U. S. 950
government.'"
Schor, supra, at
478 U. S. 848,
quoting
United States v. Will, 449 U.
S. 200,
449 U. S. 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 478 U. S. 850,
quoting Northern Pipeline, supra, at 458 U. S. 58.
Although parties may waive their personal guarantee of an
independent Article III adjudicator, Schor, supra, at
478 U. S. 848,
parties may not waive Article III's structural guarantee.
"Article III, § 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, § 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
478 U. S.
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
490 U. S. 863.
Because jury selection is "a critical stage" of the felony trial,
see id. at
490 U. S. 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
478 U. S.
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).
Page 501 U. S. 951
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
447 U. S. 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)).
[Footnote 2/7] 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
478 U. S. 853.
But this means of satisfying the Constitution is not available
here. For, as I have noted, supra at 501 U. S. 944,
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 490 U. S.
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 501 U. S. 937,
quoting Raddatz, supra, at 447 U. S. 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
Page 501 U. S. 952
court from providing the review that the Constitution requires,"
ante at
501 U. S. 939,
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.
[
Footnote 2/1]
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").
[
Footnote 2/2]
As we have observed, "
"[W]here the indictment is for a
felony, the trial commences at least from the time when the work of
empaneling the jury begins."'" Gomez v. United States,
490 U. S. 858,
490 U. S. 873
(1989), quoting 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). 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
490 U. S. 873
(citations omitted). We discerned Congress' recognition of this
understanding from its passage of the Speedy Trial Act, 18 U.S.C. §
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
490 U. S. 873,
citing Fed.Rules Crim.Proc. 23 and 24.
[
Footnote 2/3]
"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
490 U. S.
874-875 (citations omitted).
[
Footnote 2/4]
The majority concedes that magistrate jury selection "may be
difficult for a judge to review with infallible accuracy."
Ante at
501 U. S. 935,
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
501 U. S. 935,
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
490 U. S.
874-875.
[
Footnote 2/5]
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
490 U. S. 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.
[
Footnote 2/6]
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. § 3401(b);
see also 28 U.S.C. §
636(a)(3) (incorporating requirements of 18 U.S.C. § 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
490 U. S. 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.
[
Footnote 2/7]
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
501 U. S. 938.
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
447 U. S. 685
(BLACKMUN, J., concurring).
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 Federal 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
Page 501 U. S. 953
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
501 U. S.
894-895 (SCALIA, J., concurring in judgment). 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
501 U. S. 896
(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
490 U. S. 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. 1029 (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
Page 501 U. S. 954
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,
470 U. S. 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,
456 U. S. 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.
*
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,
370 U. S.
535-536 (1962) (opinion of Harlan, J.);
Grosso v.
United States, 390 U. S. 62,
390 U. S. 71-72
(1968);
Hormel v. Helvering, 312 U.
S. 552,
312 U. S.
556-560 (1941). In my view, that course is appropriate
here. Petitioner's principal claims are that the Federal
Magistrates Act does not allow a district court to assign felony
voir dire to a magistrate even with the defendant's
consent, and that, in any event the consent here was ineffective
because given orally by counsel and not in writing by the
defendant. By definition, these claims can be
Page 501 U. S. 955
advanced
only by a litigant who will, if ordinary rules
are applied, be deemed to have forfeited them: a defendant who
objects will not be assigned to the magistrate at all. Thus, if we
invariably dismissed claims of this nature on the ground of
forfeiture, district courts would
never know whether the
Act authorizes them, with the defendant's consent, to refer felony
voir dire to a magistrate, and, if so, what form the
consent must take.
Cf. 18 U.S.C. § 3401(b) (defendant's
consent to magistrate in misdemeanor trial must be in writing).
Given the impediments to the proper assertion of these claims, I
believe we are justified in reaching the statutory issue today to
guide the district courts in the future performance of their
duties. It is not that we
must address the claims because
all legal questions require judicial answers,
cf. Valley Forge
Christian College v. Americans United for Separation of Church and
State, Inc., 454 U. S. 464,
454 U. S. 489
(1982);
Webster v. Doe, 486 U. S. 592,
486 U. S.
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
490 U. S.
872.
I would therefore conclude (as respondent, in fact, conceded)
that district courts are not authorized by the Federal
Magistrates
Page 501 U. S. 956
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
501 U. S.
937-939. 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.
* 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
490 U. S. 876;
Arizona v. Fulminante, 499 U. S. 279,
499 U. S. 296
(1991).