DANNY LEE WEY, PETITIONER V. UNITED STATES OF AMERICA No. 89-7562 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A4-A7) is reported at 895 F.2d 429. JURISDICTION The judgment of the court of appeals was entered on February 15, 1990. A petition for rehearing was denied on March 21, 1990. The petition for a writ of certiorari was filed on May 21, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's conviction must be reversed because a magistrate presided over the jury selection at his trial even though he did not object to the magistrate's role. STATEMENT After a jury trial in the United States District Court for the Central District of Illinois, petitioner was convicted on six counts of making false statements to a federally insured bank, in violation of 18 U.S.C. 1014; five counts of mail fraud, in violation of 18 U.S.C. 1341; and one count of interstate transportation of funds obtained by fraud, in violation of 18 U.S.C. 2314. He was sentenced to nine years' imprisonment, to be followed by five years' probation. He also was ordered to make restitution in the amount of $855,000. The court of appeals affirmed. Pet. App. A4-A7. 1. Petitioner, an investment counselor, organized partnerships to invest in real estate developments. Gov't C.A. Br. 3-16. He then persuaded banks to furnish money to the partnerships by forging the names of the partners on notes to the banks. Pet. App. A4. Prior to trial, the district court assigned a magistrate to preside over voir dire and jury selection. On February 16, 1989, the magistrate convened a venire. Before proceeding with jury selection, the magistrate told the parties that the district court was unable to conduct jury selection and had asked the magistrate to pick the jury. The magistrate then stated, "I want to make sure that's agreeable with both the government and the defendant." Petitioner's counsel replied, "I have no objection, Your Honor." The prosecutor also stated that he did not object. 2/16/89 Tr. (voir dire) at 10. During jury selection, one of the venire members stated that he had purchased an item from a business that the FBI had subsequently closed down, making it impossible for him to have the item serviced. He stated that the experience left him with "mixed emotions" about the FBI and that he saw "a certain parallelism" between that case and this case. Id. at 33-34. After ascertaining that the potential juror's experience would not affect his ability to decide the case impartially, the magistrate declined to excuse the juror for cause. Id. at 34-41. The magistrate also refused to rule on petitioner's claim that the potential juror's comments tainted the entire venire and required the magistrate to declare a mistrial. Id. at 39. The magistrate then asked the venire members whether anything that had been said during voir dire had affected their ability to be impartial. None of the jurors responded affirmatively. Id. at 41-44. Petitioner later used a peremptory challenge to strike the juror. Later that day, after the jury had been selected, petitioner renewed his motion for a mistrial to the district court. The district court stated that it had discussed the matter with the magistrate and denied the motion. 2/16/89 Tr. (trial) at 2-6. 2. Petitioner's initial brief on appeal was filed on August 19, 1989, two months after this Court held in Gomez v. United States, 109 S. Ct. 2237 (1989), that the Federal Magistrates Act does not authorize district courts to delegate jury selection in felony trials to magistrates and that the supervision of jury selection by a magistrate cannot be harmless error. In that brief, petitioner did not object to the magistrate's supervision of jury selection. See Pet. App. A5. Petitioner raised his Gomez claim for the first time in his reply brief. The court of appeals rejected petitioner's contention that Gomez required reversal of his conviction. Because petitioner's counsel had consented to the magistrate's role in jury selection, the court held (Pet. App. A5) that petitioner could prevail on appeal only if the magistrate's supervision of jury selection amounted to plain error. Relying on the First Circuit's decision in United States v. Lopez-Pena, 890 F.2d 490, rehearing granted, (Feb. 9, 1990), the court ruled "that jury selection by a magistrate is not plain error." Pet. App. A6. The court also held that the magistrate's presiding over jury selection did not deprive the district court of jurisdiction to enter judgment of conviction against petitioner. Id. at A5-A6. Finally, the court rejected petitioner's claim that the remarks of the venire member who found a "parallelism" between his own experience and the allegations in this case had contaminated the jury. Id. at A7. ARGUMENT Petitioner's sole contention in this Court (Pet. 5-10) is that even though his counsel expressly consented to jury selection by a magistrate, he is entitled to a new trial because of this Court's decision in Gomez. That contention is without merit. Moreover, this Court has now denied review in a series of cases raising that issue. Thus, further review is unwarranted. 1. In Gomez, the Court framed the issue before it as "whether presiding at the selection of jury in a felony trial without the defendant's consent is among" the duties that the Magistrates Act empowers magistrates to perform. 109 S. Ct. at 2239 (emphasis added). The Court held that the statute does not authorize that procedure. The Court further ruled that the error could not be deemed harmless when "despite the defendant's objection, and without any meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a jury." 109 S. Ct. at 2248 (emphasis added). Accordingly, this Court explicitly limited the reach of its holding in Gomez to situations in which the district court delegated jury selection to a magistrate without the defendant's consent. Thus, as the court of appeals found in United States v. Mang Sun Wong, 884 F.2d 1537, 1546 (2d Cir. 1989), cert. denied, 110 S. Ct. 1140 (1990), the Gomez decision does not require reversal of a conviction where the defendant consented to the magistrate's conducting voir dire. /1/ This is true even though it was petitioner's counsel -- not petitioner himself -- who agreed to have a magistrate conduct voir dire. In general, a criminal defendant "is bound by the * * * decisions of (his) counsel." Reed v. Ross, 468 U.S. 1, 13 (1984). See also United States v. Cronic, 466 U.S. 648, 658 (1984) ("we presume that the lawyer is competent to provide the guiding hand that the defendant needs"). The defendant's personal consent is needed only for a few "fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Jones v. Barnes, 463 U.S. 745, 751 (1983); see Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (Burger, C.J., concurring) ("(o)nly such basic decisions as whether to plead guilty, waive a jury (trial), or testify in one's own behalf are ultimately for the accused to make"). The decision whether to consent to the magistrate's conducting jury selection is not one of those basic decisions that cannot be made by counsel on the defendant's behalf. 2. This Court recently has denied review of decisions raising the same issue that petitioner seeks to raise. In United States v. Popal, cert. denied, 110 S. Ct. 1111 (1990), as in this case, the defendant's counsel consented to the magistrate's supervision of jury selection. Similarly, in United States v. Mang Sun Wong, cert. denied, 110 S. Ct. 1140 (1990), the Court denied review of the Second Circuit's decision holding that a defendant who consents cannot obtain reversal based on Gomez. See also Billini v. United States, cert. denied, No. 89-7029 (May 14, 1990). Because this case raises the same issue, review should be denied in this case as well. The Court need not hold this case pending disposition of United States v. France, No. 89-1363. That case involves a defendant who did not affirmatively consent to a magistrate's presiding over jury selection, but merely failed to object to that procedure. It raises the question whether a defendant's failure to object to a magistrate's supervision of jury selection may be excused on the ground that an objection would have been futile in light of controlling decisions in the same court of appeals approving the delegation of jury selection to magistrates. In this case, petitioner cannot rely on Gomez because he affirmatively consented to having the magistrate conduct jury selection. Nor can he claim that it would have been futile for him to object to the magistrate, since there was no Seventh Circuit authority approving the delegation of jury selection to magistrates prior to Gomez. See Gomez, 109 S. Ct. at 2240 n.7 (collecting pre-Gomez case law). /2/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General J. DOUGLAS WILSON Attorney JUNE 1990 /1/ That conclusion is consistent with the Court's many decisions holding that a defendant may waive important rights. For example, the Court has held that a defendant may waive the right to be free from compulsory self-incrimination, see Garner v. United States, 424 U.S. 648, 654 n.9 (1976), the right to counsel, see Adams v. United States ex rel. McCann, 317 U.S. 236, 275 (1942), and the right to a speedy trial, see Barker v. Wingo, 407 U.S. 514, 515-528 (1972). The right to have a district court preside at jury selection occupies no special status that would preclude its waiver. /2/ The Court recently denied review in several cases in which the defendant failed to object to jury selection by a magistrate that did not raise the question whether an objection would have been futile. See, e.g., Williams v. Virgin Islands, cert. denied, No. 89-6855 (May 21, 1990); Mujica v. United States, cert. denied, No. 89-7032 (May 21, 1990); Lind v. United States, cert. denied, No. 89-7033 (May 21, 1990).