UNITED STATES OF AMERICA, PETITIONER V. WILLIAM JOSEPH TRICE, ET AL. No. 88-1952 In The Supreme Court Of The United States October Term, 1988 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit PARTIES TO THE PROCEEDING In addition to the named parties, Rudolph John Kepka and Hazen A. Johnson are respondents. TABLE OF CONTENTS Questions Presented Parties to the Proceeding Opinions below Jurisdiction Constitutional and statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-19a) is reported at 864 F.2d 1421. The opinion of the district court (App., infra, 25a-36a) is unreported. JURISDICTION The judgments of the court of appeals (App., infra, 20a-22a) were entered on December 29, 1988. A petition for rehearing was denied on March 7, 1989 (App., infra, 23a). By order dated April 28, 1989, Justice Blackmun extended until June 5, 1989, the time within which to file a petition for a writ of certiorari (App., infra, 37a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The relevant constitutional and statutory provisions are reproduced at App., infra, 38a-41a. QUESTIONS PRESENTED 1. Whether the Federal Magistrates Act, 28 U.S.C. 631 et seq., permits a district court to delegate jury selection to a federal magistrate. 2. Whether a district court's delegation of jury selection to a federal magistrate violates Article III of the Constitution. STATEMENT Following a jury trial in the United States District Court for the Northern District of Iowa, respondents were each convicted of conspiracy to manufacture a controlled substance, in violation of 21 U.S.C. 841(a)(1) and 846 (Count 1), and of possession of chemicals with intent to manufacture a controlled substance, in violation of 21 U.S.C. 841(a)(1) (Count 2). Respondent William Joseph Trice was sentenced to nine years' imprisonment on Count 1 and to a concurrent term of five years' imprisonment on Count 2, to be followed by three years of supervised release. On Count 1, respondent Rudolph John Kepka was sentenced to 13 years' imprisonment and fined $13,000. On Count 2, he received a suspended sentence and five years' probation to commence on his release from incarceration. Respondent Hazen A. Johnson was sentenced to four years' imprisonment on Count 1 and to a concurrent term of four years' imprisonment on Count 2, to be followed by six years of supervised release. /1/ The court of appeals reversed and remanded for a new trial (App., infra, 1a-19a). 1. Prior to respondents' trial, the district court assigned the task of jury selection to a magistrate. The assignment was made pursuant to a local rule permitting magistrate-conducted voir dire. See App., infra, 6a, quoting N.D. Iowa R. 1.6.3. Following jury selection and before the jury had been sworn, respondents objected to the manner in which the magistrate conducted voir dire. See 9/1/87 Tr. 205-207, 242. The district court heard respondents' objections during the first day of trial, at which time one of respondents' counsel questioned whether the "magistrate ha(s) the authority * * * to have mistrialed (sic) the case based upon the way he conducted it" (9/1/87 Tr. 437). The district court deferred any ruling until after the trial. Id. at 444. Following trial, respondents moved for a new trial based on the manner in which the magistrate had conducted voir dire. In response to the district court's invitation, respondents subsequently argued that the magistrate lacked authority to conduct voir dire in the first instance. See App., infra, 31a. The court rejected respondents' claims and accordingly denied their respective motions for a new trial. Id. at 30a-32a. The court concluded that the "(m)agistrate's conduct did not so affect the jury as to render them incapable of considering the evidence as against each defendant" (id. at 31a). Because respondents "did not object to the Magistrate picking the jury," the court also denied their request for a new trial based on their assertion that the magistrate lacked authority to conduct voir dire (id. at 31a-32a). 2. The court of appeals reversed (App., infra, 1a-19a). The court agreed with the Fifth Circuit's ruling in United States v. Ford, 824 F.2d 1430 (1987), cert. denied. 108 S. Ct. 741 (1988), that Congress did not intend to delegate to magistrates the authority to conduct voir dire under the Federal Magistrates Act. The court held, first, that voir dire does not constitute a "pretrial matter," within the meaning of Section 636(b)(1)(A) of the Magistrates Act, which authorizes (with certain exceptions not relevant here) a judge to "designate a magistrate to hear and determine any pretrial matter pending before the court" (28 U.S.C. 636(b)(1)(A)). App., infra, 13a-15a. The court reasoned that "Subparagraph (A) was plainly intended for less important matters than voir dire" (id. at 15a). The court likewise concluded that magistrate-conducted voir dire is not authorized by Section 636(b)(3) of the Magistrates Act, which provides that "(a) magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States" (App., infra, 16a-18a). According to the court, "(n)either the timing nor the character of voir dire suggest(s) its inclusion under the 'additional duties' provision" (id. at 17a). Finally, the court found that respondents objected to the magistrate's conducting voir dire" at the first opportunity before a trial judge" (App., infra, 18a). Hence, the court reasoned, reversal of the convictions was warranted in this case, unlike in United States v. Ford, where the defendant "fail(ed) to seasonably object" (App., infra, 18a). The court accordingly remanded for a new trial. Judge Larson concurred in part and dissented in part (App., infra, 18a-19a). He agreed with the majority that a trial judge should have presided over jury selection, but he dissented from the court's ruling that respondents "are entitled to a new trial on this basis" (id. at 18a). Based on his review of the record, Judge Larson concluded that respondents had not timely objected to the magistrate's authority to conduct voir dire. In Judge Larson's view, respondents objected before trial only to the manner in which the magistrate had conducted voir dire; the first time that they raised the threshold issue of the magistrate's authority was after trial. See id. at 18a-19a. For this reason, and because respondents' trial was otherwise "fundamentally fair," Judge Larson concluded that respondents' convictions should be affirmed (id. at 19a). REASONS FOR GRANTING THE PETITION This case raises the same question that is currently before the Court in Jose Gomez v. United States, No. 88-5014, and Diego Chavez-Tesina v. United States, No. 88-5158, which is whether the Federal Magistrates Act, 28 U.S.C. 631 et seq., and the Constitution permit a district court to delegate jury selection in a criminal case to a federal magistrate. The court of appeals concluded that the Magistrates Act does not authorize magistrate-conducted voir dire. Its ruling thus conflicts with the decision of the Second Circuit that is being reviewed by this Court in Gomez and Chavez-Tesina, and with the decisions of the Ninth Circuit in United States v. Bezold, 760 F.2d 999 (1985), and United States v. Peacock, 761 F.2d 1313, cert. denied, 474 U.S. 847 (1985). The Eighth Circuit's decision in this case is consistent with United States v. Ford, 824 F.2d 1430 (1987), in which the Fifth Circuit held that the Magistrates Act does not authorize magistrate-conducted voir dire. /2/ Because of the circuit conflict and the importance of the issue, we acquiesced in certiorari in Gomez and Chavez-Tesina. The Court subsequently granted certiorari and consolidated the two cases for purposes of oral argument. The cases have since been fully briefed, and oral argument was held on April 24, 1989. Because the Court will be addressing in Gomez and Chavez-Tesina the same issues that are raised in this case, this petition should be held for disposition in light of this Court's decision in those cases. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court's disposition of Gomez v. United States, No. 88-5014, and Chavez-Tesina v. United States, No. 88-5158. Respectfully submitted. KENNETH W. STARR Solicitor General JUNE 1989 /1/ A co-defendant was acquitted on all counts (App., infra, 4a). /2/ The court of appeals in Ford did not reverse the defendant's conviction because she had not objected to the magistrate's conducting voir dire and the court of appeals found that the error was harmless (see 824 F.2d at 1430, 1438-1439). We agree with the dissent below that a fair reading of the trial record shows that respondents failed in this case to object to the magistrate's authority to conduct voir dire until after the trial was over (see App., infra, 18a-19a). Indeed, the district court specifically found that respondents "did not object to the Magistrate picking the jury" (id. at 31a). For this reason, we also agree with the dissent that respondents' convictions should have been upheld, as in Ford, even if the magistrate lacked authority to conduct the voir dire. That question, however, involves simply a fact-bound dispute as to the adequacy of respondents' objections and does not independently warrant this Court's review. APPENDIX