PEDRO MUJICA, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7032

   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 Second Circuit

   Brief For The United States

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A1-A4) is
   unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 26,
1990.  The petition for a writ of certiorari was filed on March 23,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether petitioner's convictions must be reversed under Gomez v.
United States, 109 S. Ct. 2237 (1989), because a magistrate presided
over 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
Eastern District of New York, petitioner was convicted of conspiracy
and possession of cocaine with intent to distribute it, in violation
of 21 U.S.C. 841(a) and 846.  He was also convicted of distribution of
cocaine within 1,000 feet of a public school, in violation of 21
U.S.C. 845a(a).  He was sentenced to 78 months' imprisonment.

   1. The evidence at trial showed that petitioner sold cocaine to an
informant for the DEA.  On November 1, 1988, pursuant to prior
arrangements made in recorded telephone conversations, the informant
met with petitioner and told him that he was ready to purchase 4 1/2
ounces of cocaine.  Gov't C.A. Br. 3.  Petitioner then called his
supplier, who told him that only two ounces of cocaine were available.
 After conferring with DEA agents, the informant agreed to purchase
the two ounces.  Petitioner then sold the informant 60.7 grams of 95%
pure cocaine.  The transaction occurred about 65 feet from a public
high school.  Gov't C.A. Br. 4-5.

   At petitioner's trial, a magistrate presided over jury selection.
Petitioner did not object to the delegation of jury selection to the
magistrate.  Pet. App. A3.

   2. The court of appeals affirmed petitioner's convictions.  Pet.
App. A1-A4.  The court rejected petitioner's claim that this Court's
decision in Gomez v. United States, 109 S. Ct. 2237 (1989), required
reversal of his convictions.  Relying on United States v. Vanwort, 887
F.2d 375 (2d Cir. 1989), cert. denied, Nos. 89-1084, 89-6313 (Apr. 23,
1990), the court held that petitioner had waived his right to a
district judge's supervision of jury selection by failing to object at
trial.  Pet. App. A3-A4.

                               ARGUMENT

   Petitioner contends (Pet. 3-4) that his convictions must be
reversed because a magistrate presided over jury selection at his
trial even though he did not object to the magistrate's role.  On
April 23, 1990, this Court granted the government's petition for a
writ of certiori in United States v. France, No. 89-1363.  That case
presents the question whether a defendant's failure to object to the
magistrate's supervision of jury selection may be excused on the
ground that an objection would have been futile in light of prior
Ninth Circuit decisions approving the delegation of jury selection to
magistrates.  At the same time, this Court denied two petitions for
certiorari challenging the Second Circuit's decision in United States
v. Vanwort, 887 F.2d 375 (1989).  See Dasilva v. United States, No.
89-1084 (Apr. 23, 1990);  Chapoteau v. United States, No. 89-6313
(Apr. 23, 1990).  In Vanwort, the Second Circuit held that a
defendant's failure to object to the magistrate's role in jury
selection meant that he could not obtain reversal of his conviction
based on Gomez.

   In this case, the court of appeals rejected petitioner's Gomez
claim by citing its Vanwort decision.  Petitioner does not seek to
distinguish his claim from those raised in the petitions for
certiorari in Vanwort.  Indeed, petitioner specifically requests (Pet.
4) this Court to consider his petition along with Vanwort.
Accordingly, this Court's denial of the petitions for certiorari
arising out of Vanwort suggests that this petition also should be
denied.

   Nevertheless, both France and this case address the scope of this
Court's decision in Gomez.  Thus, this Court's ruling in France may
bear on the issue presented by this petition.  For that reason, the
Court may wish to hold this petition pending the decision in France.

                              CONCLUSION

   The petition for a writ of certiorari should be held and disposed
of in light of the decision in United States v. France, No. 89-1363.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   J. DOUGLAS WILSON

      Attorney

   MAY 1990