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90-615 -- OPINION
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
No.
PERETZ, PETITIONER v. UNITED STATES
[
Justice Stevens delivered the opinion of the Court.
The Federal Magistrates Act grants district courts author- ity 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." [n.1] In Gomez v. United States, 490 U.S. 858 (1989), we held that those "addi- tional duties" do not encompass the selection of a jury in a felony trial without the defendant's consent. In this case, we consider whether the defendant's consent warrants a dif- ferent 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 magis- trate?" App. 2. Petitioner's counsel responded: "I would love the opportunity." Ibid. Immediately before the jury selection commenced, the Magistrate asked for, and re- ceived, assurances from counsel for petitioner and from coun- sel for his codefendant that she had their clients' consent to proceed with the jury selection. [n.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 codefen- dant. 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 sub- sequent challenge on those grounds," and affirmed petition- er's conviction. App. to Pet. for Cert. 2a; 904 F. 2d 34 (1990) (affirmance order).
In Musacchia, the Second Circuit had affirmed a conviction in a case in which the defendant had not objected to jury se- lection 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 fo- cused on the `without defendant's consent' language and generally ruled that where there is either consent or a failure to object a magistrate may conduct the jury voir dire in a felony case. See [United States v. Vanwort, 887 F. 2d 375, 382-383 (CA2 1989), cert. denied, sub nom. Chapoteau v. United States, 495 U. S. --- (1990); United States v. Mang Sun Wong, 884 F. 2d 1537, 1544 (CA2 1989), cert. denied, 493 U.S. 1082 (1990); United States v. Lopez-Pena, 912 F. 2d 1542, 1545-1548 (CA1 1989)] (not plain error to permit magistrate to preside since objection to magistrate must be raised or it is waived); Government of the Virgin Islands v. Williams, 892 F. 2d 305, 310 (3d Cir. 1989) (absent demand no con- stitutional 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 defend- ant 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 fail- ure to contemporaneously object to the magistrate con- ducting jury selection did not waive her right to appel- late review. 886 F. 2d at 226. But that holding may be explained, as noted earlier, by what the court perceived as the futility of defendant raising an objection below." 900 F. 2d, at 502.
The conflict among the Circuits described by the Court of Appeals prompted us to grant the Government's petition for certiorari in the France case, see 495 U. S. --- (1990). Earlier this term, we affirmed that judgment by an equally- divided Court, 498 U. S. --- (1991). Thereafter, we granted certiorari in this case and directed the parties to ad- dress the following three questions:
"1. Does 28 U.S.C. 636 permit a magistrate to con- duct the voir dire in a felony trial if the defendant consents?
"2. If 28 U.S.C. 636 permits a magistrate to con- duct a felony trial voir dire provided that the defendant consents, is the statute consistent with Article III?
"3. If the magistrate's supervision of the voir dire in petitioner's trial was error, did the conduct of petitioner and his attorney constitute a waiver of the right to raise this error on appeal?" See 493 U. S. --- (1991).
Resolution of these questions must begin with a review of our decision in Gomez.
II
Our holding in Gomez was narrow. We framed the ques- tion presented as "whether presiding at the selection of a jury in a felony trial without the defendant's consent is among those `additional duties' " that district courts may assign to magistrates. 490 U. S., at 860 (emphasis added). We held that a magistrate "exceeds his jurisdiction" by selecting a jury "despite the defendant's objection." Id., at 876. Thus, our holding was carefully limited to the situation in which the parties had not acquiesced at trial to the Magistrate's role. [n.3] This particular question had divided the Courts of Appeals. See id., at 861-862, and n. 7. On the other hand, those courts had uniformly rejected challenges to a magistrate's au- thority to conduct the voir dire when no objection to his per- formance of the duty had been raised in the trial court. [n.4]
Although we concluded that the role assumed by the Mag- istrate in Gomez was beyond his authority under the Act, we recognized that Congress intended magistrates to play an in- tegral and important role in the federal judicial system. See id., at 864-869 (citing H. R. Rep. No. 96-287, p. 5 (1979)). Our recent decisions have continued to acknowledge the im- portance Congress placed on the magistrate's role. See, e. g., McCarthy v. Bronson, 500 U. S. ---, --- (1991) (slip op., at 6). "Given the bloated dockets that district courts have now come to expect as ordinary, the role of the magis- trate in today's federal judicial system is nothing less than in- dispensable." Government of the Virgin Islands, 892 F. 2d, at 308. [n.5]
Cognizant of the importance of magistrates to an efficient federal court system, we were nonetheless propelled towards our holding in Gomez by several considerations. Chief among our concerns was this Court's "settled policy to avoid an interpretation of a federal statute that engenders constitu- tional issues." Gomez, 490 U. S., at 864. This policy was implicated in Gomez because of the substantial question whether a defendant has a constitutional right to demand that an Article III judge preside at every critical stage of a felony trial. [n.6] The principle of constitutional avoidance led us to demand clear evidence that Congress actually intended to permit magistrates to take on a role that raised a substan- tial constitutional question. Cf. Rust v. Sullivan, 500 U. S. ---, --- (O'Connor, J., dissenting). The requirement that Congress express its intent clearly was also appropriate because the Government was asking us in Gomez to construe a general grant of authority to authorize a procedure that de- prived 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 magis- trate's conducting voir dire without the parties' consent, con- vinced us that Congress had not clearly authorized the dele- gation 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 dis- positive. See Gomez, 490 U. S., at 872, and n. 25, 875- 876.
Reinforcing this conclusion was the principle that "[a]ny additional duties performed pursuant to a general authoriza- tion in the statute reasonably should bear some relation to the specified duties" that the statute assigned to magis- trates. [n.7] Carefully reviewing the duties that magistrates were expressly authorized to perform, see id., at 865-871, we focused on the fact that those specified duties that were com- parable to jury selection in a felony trial could be performed only with the consent of the litigants. [n.8] We noted that, in 1968 when magistrates were empowered to try "minor of- fenses," the exercise of that jurisdiction in any specific case was conditioned upon the defendant's express written con- sent. See id., at 866. Similarly, the 1976 Amendment pro- vided that a magistrate could be designated as a special mas- ter in any civil case but only with the consent of the parties. Id., at 867-868. And in 1979, when Congress enlarged the magistrate's criminal jurisdiction to encompass all misde- meanors, the exercise of that authority was subject to the de- fendant's consent. As we explained:
"A critical limitation on this expanded jurisdiction is consent. As amended in 1979, the Act states that `nei- ther 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. `Defend- ants charged with misdemeanors can refuse to consent to a magistrate and thus effect the same removal,' S. Rep. No. 96-74, p. 7 (1979), for the magistrate's criminal trial jurisdiction depends on the defendant's specific, written consent." Id., at 870-871 (footnote omitted).
Because the specified duties that Congress authorized magis- trates to perform without the consent of the parties were not comparable in importance to supervision of felony trial voir dire but were instead "subsidiary matters," id., at 872, we did not waver from our conclusion that a magistrate cannot conduct voir dire over the defendant's objection.
III
This case differs critically from Gomez because petitioner's counsel, rather than objecting to the Magistrate's role, af- firmatively welcomed it. See supra, at 1. The consider- ations that led to our holding in Gomez do not lead to the conclusion that a magistrate's "additional duties" may not in- clude supervision of jury selection when the defendant has consented.
Most notably, the defendant's consent significantly changes the constitutional analysis. As we explain in Part IV, infra, we have no trouble concluding that there is no Ar- ticle III problem when a district court judge permits a magis- trate to conduct voir dire in accordance with the defendant's consent. The absence of any constitutional difficulty re- moves one concern that motivated us in Gomez to require un- ambiguous evidence of Congress' intent to include jury selec- tion among a magistrate's additional duties. Petitioner's consent also eliminates our concern that a general authoriza- tion 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 cate- gory 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 Con- gress had intended strictly to limit these additional duties to functions considered in the committee hearings or debates, presumably it would have included in the statute a bill of par- ticulars rather than a broad residuary clause. Construing this residuary clause absent concerns about raising a con- stitutional 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 ex- plained in Part II, the duties that a magistrate may perform over the parties' objections are generally subsidiary matters not comparable to supervision of jury selection. However, with the parties' consent, a district judge may delegate to a magistrate supervision of entire civil and misdemeanor trials. These duties are comparable in responsibility and importance to presiding over voir dire at a felony trial.
We therefore conclude that the Act's "additional duties" clause permits a magistrate to supervise jury selection in a felony trial provided the parties consent. In reaching this result, we are assisted by the reasoning of the Courts of Ap- peals 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 defend- ant 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); Gov- ernment of the Virgin Islands v. Williams, 892 F. 2d 305 (CA3 1989).
We share the confidence expressed by the Third Circuit in Williams that this reading of the additional duties clause strikes the balance Congress intended between the interests of the criminal defendant and the policies that undergird the Federal Magistrates Act. 892 F. 2d, at 311. The Act is designed to relieve the district courts of certain subordinate duties that often distract the courts from more important matters. [n.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 im- prove the efficient administration of the courts' dockets. See H. R. Rep. No. 94-1609, p. 12 (1976). [n.10]
At the same time, the requirement that a criminal defend- ant 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, be- lieves that the presence of a judge best serves his inter- ests during the selection of the jury, then Gomez pre- serves his right to object to the use of a magistrate. Where, on the other hand, the defendant is indifferent as to whether a magistrate or a judge should preside, then it makes little sense to deny the district court the oppor- tunity to delegate that function to a magistrate, particu- larly if such a delegation sensibly advances the court's interest in the efficient regulation of its docket." Gov- ernment of the Virgin Islands v. Williams, 892 F. 2d, at 311.
In sum, the structure and purpose of the Federal Magis- trates 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 con- sent. [n.11] The Act evinces a congressional belief that magis- trates are well qualified to handle matters of similar impor- tance 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 en- sure that a judge conduct the voir dire. [n.12] However, when a defendant does consent to the magistrate's role, the magis- trate has jurisdiction to perform this additional duty.
IV
There is no constitutional infirmity in the delegation of fel- ony trial jury selection to a magistrate when the litigants con- sent. As we have already noted, it is arguable that a defend- ant 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 de- fendant has no constitutional right to have an Article III judge preside at jury selection if the defendant has raised no objection to the judge's absence.
We have previously held that litigants may waive their personal right to have an Article III judge preside over a civil trial. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 848 (1986). The most basic rights of criminal defendants are similarly subject to waiver. See, e. g., United States v. Gagnon, 470 U.S. 522, 528 (1985) (absence of objection constitutes waiver of right to be present at all stages of criminal trial); Levine v. United States, 362 U.S. 610, 619 (1960) (failure to object to closing of courtroom is waiver of right to public trial); Segurola v. United States, 275 U.S. 106, 111 (1927) (failure to object constitutes waiver of Fourth Amendment right against unlawful search and sei- zure); United States v. Figueroa, 818 F. 2d 1020, 1025 (CA1 1987) (failure to object results in forfeiture of claim of unlaw- ful postarrest delay); United States v. Bascaro, 742 F. 2d 1335, 1365 (CA11 1984) (absence of objection is waiver of double jeopardy defense), cert. denied sub nom. Hobson v. United States, 472 U.S. 1017 (1985); United States v. Cole- man, 707 F. 2d 374, 376 (CA9) (failure to object constitutes waiver of Fifth Amendment claim), cert. denied, 464 U.S. 854 (1983). See generally Yakus v. United States, 321 U.S. 414, 444 (1944) ("No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right"). Just as the Constitution affords no protection to a defendant who waives these fundamental rights, so it gives no assistance to a defendant who fails to demand the presence of an Article III judge at the selection of his jury.
Even assuming that a litigant may not waive structural protections provided by Article III, see Schor, 478 U. S., at 850-851, we are convinced that no such structural protections are implicated by the procedure followed in this case. Mag- istrates 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, 683 (1980). The decision whether to empanel the jury the selection of which a magis- trate has supervised also remains entirely with the district court. Because "the entire process takes place under the district court's total control and jurisdiction," id., at 681, there is no danger that use of the magistrate involves a "con- gressional attemp[t] `to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating' constitutional courts, National Insurance Co. v. Tidewater Co., 337 U.S. 582, 644 (1949) (Vinson, C. J., dissenting) . . . ." Schor, 478 U. S., at 850.
In Raddatz, we held that the Constitution was not violated by the reference to a Magistrate of a motion to suppress evidence in a felony trial. The principal constitutional argu- ment advanced and rejected in Raddatz was that the omis- sion 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 Amend- ment. 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 Arti- cle III argument that petitioner does raise. The reasoning in Justice Blackmun's concurring opinion is controlling here:
"As the Court observes, the handling of suppression mo- tions 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 re- ferred, the judge may freely reject the magistrate's rec- ommendation. 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 instruc- tions.' See 28 U.S.C. 636(b)(1). Moreover, the magistrate himself is subject to the Art. III judge's con- trol. 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 im partiality, 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 assum- ing that, despite these protections, a controversial mat- ter 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 un- derlies Art. III. We do not face a procedure under which `Congress [has] delegate[d] to a non-Art. III judge the authority to make final determinations on issues of fact.' Post, at 703 (dissenting opinion). Rather, we confront a procedure under which Congress has vested in Art. III judges the discretionary power to delegate certain functions to competent and impartial assistants, while ensuring that the judges retain complete supervi- sory control over the assistants' activities." 447 U. S., at 685-686.
Unlike the provision of the Federal Magistrates Act that we upheld in Raddatz, 636(b)(3) contains no express provi- sion 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 pro- vision we upheld in Raddatz provided for de novo review only when a party objected to the magistrate's findings or recom- mendations. 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 defend- ant in a future case does request review, nothing in the stat- ute 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 pro- vide an inadequate substitute for the Article III judge's ac- tual supervision of the voir dire, the same is true of a magis- trate's determination in a suppression hearing, which often turns on the credibility of witnesses. See Raddatz, 447 U. S., at 692 (Stewart, J., dissenting). We presume, as we did in Raddatz when we upheld the provision allowing refer- ence to a magistrate of suppression motions, that district judges will handle such cases properly if and when they arise. See id., at 681, n. 7. Our decision that the procedure fol- lowed in Raddatz comported with Article III therefore re- quires the same conclusion respecting the procedure followed in this case.
V
Our disposition of the statutory and constitutional ques- tions makes it unnecessary to discuss the third question that we asked the parties to brief and to argue. We note, how- ever, 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 con- duct 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. [n.13]
The judgment of the Court of Appeals is affirmed.