Gonzalez v. United States (No. 06-11612)

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Oral argument: January 8, 2008

Appealed from: United States Court of Appeals, Fifth Circuit (March 30, 2007)


A federal court convicted Gonzalez of drug charges in a trial in which a magistrate judge presided over jury selection. Though counsel for the defendant consented to the magistrate conducting voir dire (the questioning and evaluation of potential jurors) in lieu of an Article III judge, Gonzalez neither personally consented nor objected. Gonzalez argues that the right to personally choose whether an Article III judge will or will not preside over voir dire is an important constitutional right; the government argues that the rule in Peretz v. United States does not require personal consent, that the consent of counsel was adequate, and that conducting voir dire was within the scope of duties that may be delegated to magistrates. Gonzalez counters that the government misconstrues the language in Peretz.

Question(s) presented

Is a federal criminal defendant's counsel's oral consent to have a United States magistrate judge preside over jury selection binding on the defendant when the record does not reflect the defendant's own knowing and voluntary waiver of his constitutional right to have an Article III judge preside over jury selection?



Can a defendant's lawyer, without personally consulting the defendant, orally agree to waive the defendant's right to have an Article III judge preside over jury selection?



A federal jury in Lorado, Texas convicted Homero Gonzalez on several criminal conspiracy and substantive counts related to possession of more than 1,000 kilograms of marijuana. Brief for Respondent at 1,2. Gonzalez, a 45-year old Mexican citizen residing legally in the U.S., did not speak English at the time of trial and required a court interpreter to translate the proceedings into Spanish. Brief for Petitioner at 2. Gonzalez appeared before a magistrate judge for his detention hearing and arraignment and then appeared before a district judge for four pretrial conferences. Id. at 2. At the end of the last conference, the district judge stated that voir dire, jury selection, would start the following week but did not mention that a magistrate, rather than a federal judge, would preside. Id. at 3. At the beginning of voir dire, the magistrate judge called counsel for Gonzalez and counsel for the government to the bench and obtained their consent to the magistrate's supervision. Id. at 3

Gonzalez did not personally consent, either orally or in writing, to having a magistrate judge conduct voir dire. However, the magistrate judge addressed him directly, through the court interpreter, when she introduced herself formally as a magistrate judge and stated that she would be performing jury selection. Brief for Respondent at 3. After jury selection, a district judge presided over Gonzalez's trial and sentencing. Brief for Petitioner at 6.

Gonzalez appealed his conviction to the United States Court of Appeals for the Fifth Circuit, where he obtained new representation from a U.S. Federal Defender. Id. Gonzalez argued that since he had not personally waived his right to have an Article III judge conduct jury selection, the delegation of jury selection to the magistrate was clearly erroneous. Id. The Court rejected Gonzalez's argument on the grounds that since Gonzalez didn't raise his claim before appeal, the "plain error" standard applied and that the alleged error wasn't plain. Id. The Court also found that consent of trial counsel for Gonzalez to jury selection was sufficient and there was no need for Gonzalez to personally consent. Id. Gonzalez appealed to the U.S. Supreme Court, which granted certiorari on September 25, 2007.



Article III of the Constitution establishes an independent federal judiciary. Brief for Petitioner at 13. Article III judges, including federal district judges, hold an important position in the American judicial system because they are not beholden to a political entity for their authority, and because they may only be removed according to a formal impeachment process. Id. Constitutional Founders, including Alexander Hamilton and others, considered the independent status of Article III judges to be of great importance to a fair judiciary. Justice Marshall agreed, and referred to dependent judiciaries as the "greatest scourge . ever inflicted." Brief for Petitioner at 13-14, quoting U.S. v. Hatter, 532 U.S. 557 (2001) at 569.

In contrast, Congress established magistrate judges through the Federal Magistrates Act ("FMA") to serve as adjunct judges. Magistrate judges lack the independence of Article III judges because, in addition to serving in offices that Congress could abolish, they are appointed for eight-year terms, and are subject to for-cause dismissal and salary dimunition. Id. at 17.

The Supreme Court has previously engaged the issue of consent to magistrate judges in voir dire proceedings in Gomez v. U.S. and Peretz v. U.S. Gomez holds that, if the defendant objects to a magistrate judge supervising voir dire, such supervision is not allowed. See Gomez v. U.S., 490 U.S. 858 (1989). However, Peretz holds that a magistrate may supervise voir dire if the defendant consents. See Peretz v. U.S., 501 U.S. 923 (1991). Gonzalez argues that magistrate supervision of voir dire requires express personal consent and that silence is insufficient. Brief for Petitioner at 22. However, the Government counters that in Peretz, the defendant did not personally consent and the court did not adopt the position of the three dissenting judges that Peretz should have personally consented. Brief for Respondent at 6. Therefore, the Government argues, there is no requirement that a defendant personally consent to having a magistrate conduct voir dire. Id. The Government argues that this decision is merely one of many strategic issues that counsel must make in the course of trial and raises no fundamental constitutional issues. Id. Gonzalez counters that the Government relies on an erroneous interpretation of Peretz that takes advantage of ambiguities in the decision. See Petitioner's Reply Brief at 3.

This case examines the jury selection process, which is, for a number of reasons, one of the most highly protected constitutional rights. Jury selection implicates both the availability of fair trials for criminal defendants as well as the "representative function" of public involvement in trials. Brief for Petitioner at 18-19. It is primarily the sound judgment of the trial judge that guards the complex set of rules and standards governing voir dire. See id. The judge must assess not only the spoken words of a prospective juror, but also his gestures and demeanor. Id. at 19, n. 16. This assessment would be difficult for a reviewing court to conduct on the basis of available court records, and is largely not reviewable. Therefore, there is a strong public interest in ensuring the independence of the original trial judge. Id. at 20.

The jury selection process must be guarded against ethnic, racial, or political discrimination as well as any form of prejudice regarding the culpability of the defendant. Brief Amicus Curie of the Charles Hamilton Houston Institute of Race and Justice at 5. Judicial oversight plays an important role in overcoming these abuses. Id. If Gonzalez prevails, the Supreme Court will clearly communicate the importance of this right by allowing the consent issue to be raised even on appeal. Given that Gonzalez is a non-English speaking Mexican national who is presumably unfamiliar with the American justice system, such a finding will protect the Constitutional rights of the weak and unpopular in our society.

A finding for the Government, on the other hand, will clarify broad contours of strategic action that an attorney may take on his client's behalf without his client's express knowledge or consent. At the same time, the Court will have indicated its reluctance to raise the right to selection of a jury by an Article III judge to the level of importance afforded to issues that can be raised even on appeal.

Some district courts, including the First Circuit Court of Appeals, have held that, as long as the defendant does not object, he waives his right and the magistrate may conduct voir dire. United States v. Desir, 273 F.3d 39, 44 (1st Cir. 2001). On the other hand, the Eleventh Circuit Court of Appeals has held that the defendant must knowingly and personally consent. United States v. Maragh, 174 F.3d 1202 (11th Cir. 1999).



The Court of Appeals for the Fifth Circuit held that Gonzalez's defense attorney gave valid consent on Gonzalez's behalf to the magistrate judge's supervision of jury selection. See U.S. v. Gonzalez, 483 F.3d 390 (5th Cir. 2007). However, Gonzalez argues that criminal defendants must personally and expressly consent to waive their right to have an Article III judge supervise the process. Brief for Petitioner at 10-12. Gonzalez justifies his position by pointing to the core importance of jury selection in a felony trial and to the fact that magistrate judges lack the independence Article III judges have. Id. at 15-17. A magistrate judge who lacks independence could be influenced by outside forces and thus fail to provide fair and unbiased jury selection. The Government argues that defense counsel's communication of consent to a magistrate is constitutionally sufficient, and is permitted both by the "additional duties" clause of the FMA and by relevant Supreme Court case law. Brief for Respondent at 5-6. The parties also dispute the lower court's use and resolution of the plain-error standard of review, which arose because Gonzalez raised his claim about magistrate judge's supervision of voir dire for the first time on appeal. Brief for Petitioner at 45.

Magistrate Participation in Voir Dire and Lower Court Disagreement

The Sixth Amendment of the Constitution guarantees criminal defendants the "right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . ." U.S. Const. Amend. VI. The modern process for selecting a jury has been criticized as an art form in which defense attorneys and prosecutors exercise both "for cause" and peremptory challenges to remove potential jurors who appear to have an unfavorable bias. See, e.g., Practicing Law Institute, Jury Selection: Effective Techniques for the 90's (Nov. - Dec. 1992); Fed. R. Civ. P. 47(b). Presiding judges must police the use of peremptory challenges because the removal of potential jurors who belong to a cognizable group (race, ethnicity, or gender) is unconstitutional under Batson v. Kentucky. See id., 476 U.S. 79 (1986).

The circuit courts are divided on whether defendants must personally and expressly consent to magistrate judge's participation in voir dire. See Petition for Certiorari at 12. In 1991, the Supreme Court held that, if a defendant consents, "a district court does not violate the defendant's constitutional right to an Article III judge" by delegating jury selection to a magistrate judge. Peretz v. United States, 501 U.S. 923, 951 (1991). After Peretz, the Eleventh Circuit required "the defendant's personal consent." United States v. Maragh, 174 F.3d 1202, 1206 (11th Cir. 1999). However, the First and Seventh Circuits, and now the Fifth Circuit in this case, have not required personal consent, and have accepted a defendant's failure to object to a magistrate at voir dire as a waiver of the right to an Article III judge. See U.S. v. Gonzalez, 483 F.3d 390 (5th Cir. 2007). Meanwhile, the Sixth and Tenth Circuits have held that the litigant's waiver must be "voluntary, knowing and intelligent," but have not addressed the validity of counsel's waiver for their clients. Petition for Certiorari at 14 (citations omitted).

Authority Under the Federal Magistrates Act ("FMA")

Gonzalez first points out that the Federal Magistrates Act ("FMA") fails to bestow the same independence upon magistrate judges that the Constitution bestows upon Article III judges. Brief for Petitioner at 10-13. Gonzalez relies upon Gomez v. U.S., which established that magistrate judges may not participate in jury selection without the defendant's consent, to argue that such consent must be personal and explicit. See Gomez, 490 U.S. 858, 860, 863-64 (1989). The Government responds that Gomez did not address express consent and stresses that the literal language of the FMA does not require personal consent but instead permits a magistrate judge to participate in "such additional duties as are not inconsistent with the Constitution and laws of the United States." Brief for Respondent at 10-11 citing 28 U.S.C. � 636(b)(3). The Government argues that a magistrate judge may participate in voir dire absent the defendant's objection because the right to have an Article III judge preside over that procedure is not the type of fundamental right that requires "personal and informed consent." Brief for Respondent at 17. In contrast, Gonzalez argues judicial participation in the voir dire is a "core Article III concern" requiring defendant's "express and personal consent." Brief for Petitioner at 18-22. According to Gonzalez, a defendant's express consent promotes judicial efficiency and reflects knowing and voluntary consent on the record. Id. at 39-42. Lastly, Gonzalez urges the Court to observe the doctrine of constitutional avoidance and avoid the serious constitutional question presented in the case by filling statutory gaps within the FMA. Id. at 33-34 (citing Miles v. Apex Marine Corp., 498 U.S. 19, 31 (1990)).

Defendant's Consent to Magistrate Participation in Voir Dire

The Government and Gonzalez interpret the holding in Peretz differently. According to the Government, "[n]othing in Peretz suggests that a defendant must state his express personal consent to a magistrate judge's supervision of voir dire." Brief Opposing Certiorari at 8. Conversely, Gonzalez interprets Peretz to require a defendant's express consent because the Peretz court permitted a defense attorney to consent in the defendant's presence and where the attorney explicitly stated that both he and the defendant consented. See Brief for Petitioner at 12.

According to the Government, defense counsel is entrusted with crucial strategic decisions, such as how to question potential jurors during voir dire and whether to exercise peremptory challenges, and it would be incongruous to hold that counsel may not decide to allow a magistrate judge preside over voir dire. Brief for Respondent at 21. Additionally, the Unites States argues that, where explicit and personal consent is not required, it is unnecessary for the record to reflect the defendant's concurrence with counsel's waiver of an Article III judge because counsel is generally presumed to speak on the defendant's behalf. Id. at 27-29.

Defendant's Fundamental Rights

Certain rights are deemed so fundamental that defendants themselves must knowingly and voluntarily waive those rights. Waiver of the Sixth Amendment right to a jury trial is an example of a fundamental right where the defendant must personally, knowingly, and voluntarily waive this right. Brief for Petitioner at 18. Both the National Association of Criminal Defense Lawyers and the Charles Hamilton Houston Institute for Race and Justice filed amicus briefs supporting Gonzalez and argue that waiver of an Article III judge during voir dire involves a fundamental right, requiring defendants' personal waiver. See Brief for the National Association of Criminal Defense Lawyers as Amicus Curie Supporting Petitioner ; See Brief for the Charles Hamilton Houston Institute of Race and Justice as Amicus Curie Supporting Petitioner.

Plain Error Review and Rule 52 of The Federal Rules of Criminal Procedure

Gonzalez and the Government also disagree over the standard of review that applies in this case, given that Gonzalez did not raise at trial the issue of whether he consented to a magistrate. According to Rule 52(b) of the Federal Rules of Criminal Procedure, "[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Fed. R. Crim. P. 52(b). Thus, an error must be "plain" to be available for review under Rule 52(b). The Fifth Circuit determined that Gonzalez failed to show plain error under Rule 52(b) and thus affirmed the trial court's holding. However, Rule 51(b) of the Federal Rules of Criminal Procedure establishes that "[i]f a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party." Fed. R. Crim. P. 51(b). On appeal before the Supreme Court, Gonzalez argues that, in his case, Rule 51(b) overcomes Rule 52(b) because he was denied an opportunity to object when the magistrate judge only solicited his counsel's consent. See Brief for Petitioner at 46. Gonzalez emphasizes that he was not present at the bench and did not yet have an interpreter when his counsel consented to the magistrate judge. Id. at 47. Alternatively, Gonzalez maintains that Rule 51(b)'s plain error standard does not apply because the nature of the right to an Article III judge during voir dire prevents it from being so "forfeited." Id. at 49.

If plain-error review applies, Gonzalez argues that he is entitled to reversal of his conviction under that standard under the four-prong test established in United States v. Olano. Brief for Petitioner at 58. Under the Olano standard, a defendant who "forfeited" a claim is entitled to relief on appeal if "(1) a 'plain' (2) 'error' occurred that (3) 'affects substantial rights' of the defendant and that (4) 'seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.'" Brief for Petitioner at 58 (citing Olano, 507 U.S. 725, 733-36 (1993)). Gonzalez believes he meets the Olano criteria and is thus entitled to reversal even under plain-error review. Id. at 59-60.

Meanwhile, the Government contends that, even if there was error in allowing the magistrate judge to participate in the voir dire, it did not meet the Olano standard because it was not plain and did not violate Gonzalez's substantive rights. Brief for Respondent at 39-43. Quoting Johnson v. United States, 520 U.S. 461, 468, the Government argues that obtaining only Gonzalez's counsel's consent was not plain error because it did not involve law that was "clear and 'settled . . . at the time of appellate consideration.'" Furthermore, the Government believes the magistrate judge's participation in voir dire did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings." Id. at 48. Because of this, the Government argues that the Supreme Court should affirm the Fifth Circuit's holding. Id. at 51.



This case is ultimately a question of the extent to which a defendant's right to have an Article III judge conduct voir dire is essential to the more broad-reaching right to a jury in criminal cases. A finding for the plaintiff would mean greater protection for the rights of criminal defendants to have a say in determining the important aspects of how their case is conducted. A finding for the defendant, on the other hand, would give control over this key portion of the case to counsel for the defendant. Additionally, the Court's decision will indicate its willingness to allow the delegation of important elements of trial to magistrate judges.


Prepared by: Fritz Ernemann and John Busby

Edited by: Heidi Guetschow

Additional Sources

� Law About. Criminal Procedure , Voir Dire

Proceedings Before U.S. Magistrate Judges


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