Argument preview: Gonzalez v. US

Argument Preview

On January 8, 2008, the Supreme Court will hear argument in No. 06-11612, Gonzalez v. United States, which presents two questions: (1) whether a federal criminal defendant must explicitly and personally waive his right to have an Article III judge preside over voir dire; and (2) whether the court of appeals properly reviewed for plain error petitioner’s objection – raised for the first time on appeal – to the delegation of voir dire to a magistrate judge.

Background

On December 7, 2004, a federal grand jury indicted Homero Gonzalez on several drug-related offenses. Gonzalez pleaded not guilty and chose to be tried by a jury. Prior to jury selection, Gonzalez appeared four times before a district judge and twice before a magistrate judge.
On January 21, 2005, the magistrate judge conducted jury selection. At no time prior to this date had the district judge mentioned delegating jury selection to the magistrate judge. Before jury selection began, the magistrate judge summoned counsel for both sides to the bench, where she indicated that she “need[ed] to ask the parties at this time if they are going to consent to having the United States Magistrate Judge proceed in assisting in the jury selection of this case.” After both the prosecutor and Gonzalez’s counsel responded in the affirmative, the magistrate judge then stated, “The parties have agreed through consent that this Court will be assisting through the process of jury selection.” At no time did she ask Gonzalez himself whether he consented to having a magistrate judge conduct jury selection, and only after this meeting at the bench did she ask whether Gonzalez was present in the courtroom and whether he required a translator (which he did).

Voir dire proceeded. The defense did not make any objections during jury selection, and the case proceeded to trial before a district judge. The jury found Gonzalez guilty on all counts and sentenced him to 190 months of imprisonment.

Gonzalez appealed to the U.S. Court of Appeals for the Fifth Circuit, arguing that because he did not personally consent to the district judge’s delegation of jury selection to a magistrate judge, the case should be remanded for a new trial. This claim implicated the Federal Magistrates Act, 28 U.S.C. § 636(b)(3), which provides that a federal district court may delegate certain pre-trial Article III duties to a magistrate judge, as well as two Supreme Court cases considering the circumstances in which an Article III court may delegate voir dire: Gomez v. United States, in which the Court held that permitting a magistrate judge to conduct voir dire over the defendant’s express objection violates the Federal Magistrates Act, and Peretz v. United States, which holds that both the Act and Article III authorize delegation of voir dire with the defendant’s consent. Against this background, the court of appeals acknowledged that Peretz did not clearly address the form a defendant’s consent must take to effectuate a permissible delegation of voir dire to a magistrate judge: must a defendant personally consent, or does defense counsel’s consent suffice? After noting that only one court of appeals – the Eleventh Circuit in United States v. Maragh (1999) – had adopted Gonzalez’s position, and stating that other courts of appeals disagree with the Eleventh Circuit’s position, the Fifth Circuit panel concluded that, given the unsettled state of the law interpreting Peretz, any error in the delegation in this case could not be plain error. Alternatively, the court of appeals concluded, Gonzalez’s argument failed even under a less demanding standard: in its view, Peretz does not require personal waiver, and the right to have an Article III judge conduct voir dire is not so fundamental that a defendant must personally waive it. Thus, the court held, the right to have an Article III judge conduct voir dire is one that may be waived through consent of counsel, and counsel validly waived that right in this case.

Petition for Certiorari

Gonzalez filed a petition for certiorari, which the Supreme Court granted on September 25, 2007.

Gonzalez’s petition advanced two basic arguments. First, he argued that although he raised his claim of impermissible delegation for the first time on appeal, the plain error standard does not apply because “the very nature of his claim – i.e., that a defendant must personally consent in a knowing and voluntary manner to delegation of jury selection to a magistrate judge and that defense counsel’s consent is not by itself sufficient – presupposes no objection in the district court.” Thus, de novo review applies. Gonzalez emphasized that the Eleventh Circuit, in Maragh, held that the plain error standard does not apply to such a claim raised for the first time on appeal.

Second, Gonzalez argued that, contrary to the Fifth Circuit’s decision, both Article III and the Act require that a federal criminal defendant personally consent to delegation of voir dire to a magistrate judge. Under Peretz, the crucial question is whether a litigant has personally and knowingly agreed to a delegation of jury selection to a magistrate judge. The right to have an Article III judge preside over jury selection is among the rights of a criminal defendant that are so fundamental – on par with the right to a jury trial, the right to counsel, and the right to plead not guilty – that an effective waiver requires a defendant’s personal consent. Gonzalez also noted that the Fifth Circuit’s conclusion directly conflicts with the Eleventh Circuit’s decision in Maragh on this issue, and that several decisions of other courts of appeals demonstrate confusion on how to interpret Peretz.

The United States argued that certiorari was unwarranted for several reasons. First, it argued that the decisions in Gomez and Peretz do not require personal waiver; rather, the critical distinction between Peretz and Gomez was that in Peretz, defense counsel affirmatively welcomed delegation of voir dire to the magistrate judge (as Gonzalez’s trial counsel did in this case), whereas in Gomez, the defense had explicitly objected to it. Moreover, the right to have an Article III judge preside over voir dire is not among the few rights that are so fundamental as to require a defendant’s personal waiver. Rather, the decision whether to have a magistrate judge preside over voir dire is a tactical one, properly left to counsel. Second, the United States argued that only the Eleventh Circuit had reached a result contrary to the Fifth Circuit, and “[this] narrow conflict . . . does not warrant review by th[e] Court at this time,” as these are the only two courts of appeals to consider this precise issue and the Eleventh Circuit might (correctly) change course. Third, the United States argued that this case would be a poor vehicle for review of this conflict because Gonzalez failed to object before the trial court and thus the claim is subject to plain error, and under that standard – or even under a lesser standard – Gonzalez is not entitled to reversal.

Merits Briefing

In his merits brief, Gonzalez reiterates his characterization of Gomez and Peretz (arguing that the defendant’s consent is the crucial difference in the two cases), briefly contends that the Constitution requires a defendant’s personal consent to have a magistrate judge preside over voir dire, then shifts to his main argument on the first question presented: that the Court should avoid any constitutional question and instead should interpret the Act to require personal and explicit consent to delegation of jury selection to a magistrate judge.

This main argument proceeds in several steps. Gonzalez first emphasizes the importance of independent Article III judges to our constitutional system and argues that magistrate judges lack this independence. Next, he contends that having an independent judge conduct felony jury selection is “a core Article III concern” because jury selection is a “critical stage” of the proceeding and is very difficult to review. Thus, a constitutionally effective waiver of the right to an Article III judge at felony jury selection requires a defendant’s express and personal consent. But, given the seriousness of this constitutional question, the Court should avoid it and instead should interpret the Act in pari materia with 18 U.S.C. § 3401(b) (which requires a defendant’s express consent to be tried before a magistrate judge for misdemeanor charges), to require a defendant’s personal and explicit consent to have a magistrate judge preside over felony jury selection.

Alternatively, Gonzalez argues that an effective waiver “at least requires the record to reflect the defendant’s knowing and voluntary acquiescence in his attorney’s explicit waiver of the right to an Article III judge.” Although the record in Peretz demonstrated such acquiescence, in this case Gonzalez was not present at the bench and did not have a translator at the time – and thus he cannot be presumed to have acquiesced in his trial counsel’s decision.

With respect to the second question presented, Gonzalez presents four arguments why plain error review was improper. First, he invokes Federal Rule of Criminal Procedure 51(b), which provides, in relevant part, 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,” to argue that he did not himself have an opportunity to object in the district court; as such, failure to object to the magistrate judge presiding over voir dire cannot be attributed to him. Thus, Federal Rule of Criminal Procedure 52(b)’s plain error standard does not apply, and he is entitled to de novo review. Second, he argues that Rule 52(b) does not apply because a defendant can forfeit his basic right to an Article III judge only by a valid waiver, and he made no such waiver. Third, he argues that the nature of his claim necessarily requires that it be raised for the first time on appeal. Fourth, he asserts that application of Rule 52(b) as a procedural bar would serve no legitimate governmental interest in this case, and would also unfairly subject him to plain error review when a similarly situated state defendant would be entitled to de novo review (since waiver of a federal constitutional right is a federal question, state procedural bars would not preclude de novo review by the Supreme Court). Finally, and alternatively, Gonzalez argues that even under plain error review, he is entitled to reversal.

In its brief on the merits, the United States first argues that under the Act, defense counsel may consent on behalf of a defendant to the delegation of jury selection to a magistrate. In so arguing, the United States counters Gonzalez’s interpretation of Gomez and Peretz: “[T]he Court in Peretz confined Gomez to cases in which a defendant objects to the magistrate judge’s role in jury selection and held that, absent such an objection, the defendant has no right under the Constitution or the Federal Magistrates Act to have an Article III judge conduct voir dire. A fortiori, there is no error where defense counsel expressly consents to have the magistrate judge preside over voir dire.” There is therefore no serious constitutional question in this case, the United States contends, because Peretz resolves any such question.

The United States emphasizes repeatedly that the decision whether to have an Article III judge or a magistrate judge conduct voir dire is a strategic choice properly entrusted to counsel, rather than a fundamental right that requires personal consent for an effective waiver. Thus, “the normal rule that an attorney speaks for the client” applies, and counsel can effectively waive this right on a defendant’s behalf, as counsel did in this case.

Second, the United States rejects Gonzalez’s alternative argument that the record must at least be clear that the defendant understand his rights and agree with counsel’s decision. Few rights require a defendant’s personal consent for an effective waiver and this case does not implicate such a right; counsel is thus presumed to speak on behalf of his client.

Third, the United States argues that there is no basis for importing the consent requirements of 18 U.S.C. § 3401(b) into the Act. Although the dissent in Peretz contended that § 3401(b)’s consent procedures should apply to felony charges, Congress never acted on that suggestion; in enacting § 3401(b), “Congress ‘did not focus on jury selection as a possible additional duty for magistrates’” (quoting Peretz). The natural conclusion is that Congress intended to adhere to the general rule that a defendant speaks through his counsel.

With respect to the second question presented, the United States advances two principal arguments. First, it argues that Rule 52(b) applies to Gonzalez’s improper delegation claim and rebuts each of Gonzalez’s four arguments to the contrary. The United States first emphasizes that Gonzalez was represented at trial by counsel, who spoke for him. Therefore, the defense had an opportunity to object at trial, which is all that is required. The United States next emphasizes that “Rule 52(b) applies to all claims of error, including a claim of error based on an invalid waiver of a constitutional or statutory right.” The United States then emphasizes that the purpose of the contemporaneous objection rule is to require litigants to make the court aware of any errors so that the court can cure them and remove them as a basis for appeal. Fourth and finally, the United States emphasizes that Rule 52(b) serves the legitimate governmental interest in not upsetting a criminal conviction when an objection could have cured any error.

The United States also argues, with respect to the second question presented, that any error in having the magistrate judge preside over voir dire was not plain error. First, any error was not “plain.” Defense counsel consented to the delegation of jury selection, Peretz supports the delegation under such circumstances, and most authorities at the time of Gonzalez’s trial supported the delegation. Second, any error in failing to obtain explicit and personal consent from Gonzalez did not affect his substantial rights. Nothing suggests that Gonzalez would have withheld consent to the magistrate’s role in jury selection had he been asked. Third, any error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Jury selection proceeded without incident and defense counsel did not make any objections during jury selection.