MARCELINO I. RUBIO, PETITIONER V. UNITED STATES OF AMERICA No. 90-5649 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A2) is unpublished. The opinion of the district court denying petitioner's motion to vacate his sentence (Pet. App. A4-A13) is reported at 722 F. Supp. 77. JURISDICTION The judgment of the court of appeals was entered on June 5, 1990. The petition for a writ of certiorari was filed on August 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner is entitled to have his conviction set aside on collateral attack because a magistrate presided over the jury selection at his trial. STATEMENT After two separate jury trials in the United States District Court for the District of Delaware, petitioner was convicted of possessing marijuana with the intent to distribute it and of possessing cocaine with the intent to distribute it, both in violation of 21 U.S.C. 841(a)(1). He was sentenced to ten years' imprisonment. The court of appeals affirmed, and this Court denied a petition for a writ of certiorari. United States v. Rubio, 857 F.2d 1466 (3d Cir.), cert. denied, 488 U.S. 974 (1988). Petitioner then moved pursuant to 28 U.S.C. 2255 to vacate his conviction and sentence. The district court denied the petition, and the court of appeals affirmed. 1. After a traffic stop, Delaware State Police officers discovered cocaine and marijuana in an automobile in which petitioner was a passenger. Pet. App. A5-A6. At petitioner's first trial, he was convicted of possessing marijuana with the intent to distribute it. The jury was unable to reach a verdict on the charge of possessing cocaine with the intent to distribute it, and the district court declared a mistrial on that count. Id. at A5. At petitioner's retrial, the district court assigned a magistrate to preside over voir dire and jury selection. Petitioner and his counsel consented to the magistrate's role in jury selection. Id. at A9 n.3 (quoting exchange between magistrate and petitioner), A24-A25. Petitioner did not raise the magistrate's supervision of jury selection as a ground for reversal in the court of appeals, and that court affirmed his conviction. Id. at A9. 2. In June 1989, this Court held in Gomez v. United States, 109 S. Ct. 2237, that the Federal Magistrates Act, Pub. L. No. 90-578, 82 Stat. 1108 (1968), does not authorize magistrates to conduct jury selection over the defendant's objection in felony trials, and further held that a magistrate's supervision of jury selection in that situation is not harmless error. Shortly after Gomez was decided, petitioner filed a motion under 28 U.S.C. 2255 to vacate his conviction and sentence for possession of cocaine with the intent to distribute it on the ground that a magistrate had presided over the jury selection in his case. The district court denied the Section 2255 motion. /1/ The court held that petitioner had not raised this objection at his trial, and that petitioner had failed to show cause for and prejudice from his failure to object to the magistrate's empanelment of the jury. Pet. App. A10. Therefore, the court held, under United States v. Frady, 456 U.S. 152 (1982), petitioner was barred from raising his claim for the first time in a Section 2255 motion. The district court went on to hold that Gomez did not apply retroactively to collateral challenges to convictions that were already final. Pet. App. A10-A13. 3. The court of appeals affirmed in an unpublished judgment order. Pet. App. A1-A2. The court relied on its prior decision in Government of the Virgin Islands v. Williams, 892 F.2d 305 (3d Cir. 1989), cert. denied, 110 S. Ct. 2211 (1990), in which that court held that a defendant's consent to a magistrate's supervision of jury selection precludes him from obtaining the benefit of the Gomez decision. Pet. App. A2. ARGUMENT Petitioner argues that he is entitled to have his conviction set aside on the basis of this Court's decision in Gomez. That claim lacks merit, for several reasons. 1. Petitioner and his counsel affirmatively consented to the magistrate's supervision of jury selection. 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 Federal Magistrates Act empowers magistrates to perform. 109 S. Ct. at 2239 (emphasis added). The Court held that the Act does not authorize that procedure, and 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." Id. at 2248 (emphasis added). Accordingly, this Court explicitly limited its holding in Gomez to situations in which the district court has delegated jury selection to a magistrate without the defendant's consent. Thus, as the courts of appeals found in United States v. Lake, 910 F.2d 414, 417 (7th Cir. 1990), and United States v. Mang Sun Wong, 884 F.2d 1537, 1546 (2d Cir. 1989), cert. denied, 110 S. Ct. 1140 (1990), /2/ the Gomez decision does not require the reversal of a conviction where the defendant consented to having a magistrate conduct voir dire. /3/ 2. Petitioner's conviction became final in November 1988 when this Court denied his petition for a writ of certiorari seeking review of the court of appeals' judgment entered on direct appeal upholding his conviction. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987); Allen v. Hardy, 478 U.S. 255, 258 n.1 (1986). Accordingly, petitioner is not entitled to the benefit of the decision in Gomez unless that decision should be applied retroactively to cases that became final before it was decided. It clearly should not, as the only court of appeals to have addressed this question has concluded. Gilberti v. United States, No. 90-2106 (2d Cir. Oct. 22, 1990). a. A decision announcing a "new rule" does not apply retroactively to a collateral attack on a final conviction unless the new rule "places 'certain kinds of primary, private conduct beyond the power of the criminal law-making authority to proscribe'" or unless the new rule creates a procedure "without which the likelihood of an accurate conviction is seriously diminished." Teague v. Lane, 489 U.S. 288, 307 (1989) (plurality opinion) (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (opinion of Harlan, J.)). See also Sawyer v. Smith, 110 S. Ct. 2822 (1990); Saffle v. Parks, 110 S. Ct. 1257 (1990); Butler v. McKellar, 110 S. Ct. 1212, 1218 (1990). Teague held that a case announces a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. 301. See also Penry v. Lynaugh, 109 S. Ct. 2934, 2944 (1989) (contrasting "new" rules with mere applications of settled principles); Butler v. McKellar, 110 S. Ct. at 1217 (defining a "new rule" as one "susceptible to debate among reasonable minds"); Sawyer v. Smith, 110 S. Ct. at 2827-2831. Under that analysis, the rule announced in Gomez should not be applied retroactively to cases that became final before Gomez was decided. Gomez announced a new rule. Prior to Gomez, this Court had not addressed the question whether the Magistrates Act allowed delegation of jury selection to magistrates. Gomez resolved a conflict among the courts of appeals on that issue. See Gomez, 109 S. Ct. at 2240 n.7 (collecting cases). And in Gomez itself the Court acknowledged that the plain language of the Federal Magistrates Act seems to allow jury selection to be delegated to magistrates. 109 S. Ct. at 2240. Thus, as every court that has considered the issue has held, the rule announced in Gomez is a "new" rule within the meaning of Teague. See Gilberti v. United States, No. 90-2106 (2d Cir. Oct. 22, 1990), aff'g, 731 F. Supp. 576, 578 (E.D.N.Y. 1990). Hrubec v. United States, 734 F. Supp. 60, 65 (E.D.N.Y. 1990); United States v. Muller, 733 F. Supp. 1392, 1394 (D. Hawaii 1990). See also United States v. Baron, 721 F. Supp. 259 (D. Hawaii 1989) (implicitly assuming that Gomez rule is a new rule within the meaning of Teague). b. The Gomez rule therefore does not apply to petitioner's motion for collateral relief unless it falls within one of two exceptions outlined in Teague and later cases. The first exception allows retroactive application of new rules that place certain types of primary individual conduct beyond the reach of the criminal law, or that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense. Sawyer v. Smith, 110 S. Ct. at 2831; Saffle v. Parks, 110 S. Ct. at 1257; Teague v. Lane, 489 U.S. at 307 (plurality opinion) (quoting Mackey v. United States, 401 U.S. at 692 (opinion of Harlan, J.)). That exception does not apply to this case since the rule announced in Gomez has nothing to do with the conduct regulated by substantive criminal laws, or with the penalties attached to a violation of those laws. Nor does the second exception apply. That exception limited "to those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague v. Lane, 489 U.S. at 313 (plurality opinion). See also Butler, 110 S. Ct. at 1218. As examples of such procedures Teague listed the claim that a proceeding was dominated by mob violence, that the prosecutor knowingly made use of perjured testimony, or that the conviction was based on a confession that was extorted from the defendant by a brutal method. 489 U.S. at 313-314 (quoting Rose v. Lundy, 455 U.S. 509, 544 (1982) (Stevens, J., dissenting)). In Saffle v. Parks, supra, the Court noted that "the precise contours of this exception may be difficult to discern," but held that it was reserved for rules of "primacy and centrality," such as the right to counsel requirement adopted in Gideon v. Wainwright, 372 U.S. 335 (1963). 110 S. Ct. at 1264. The rule announced in Gomez does not fall into that exception, for several reasons. The fact that a magistrate selected a jury does not "seriously undermine" the integrity and reliability of the trial. Nothing in the Court's opinion suggests that the Court viewed magistrates as unfit to preside over jury selection or that a jury chosen by a magistrate was likely to be less fair than one selected by a district court. On the contrary, the Court noted that "congressional concerns regarding magistrates' abilities had decreased" since the first version of the Magistrates Act was enacted. Gomez, 109 S. Ct. at 2244. In addition, magistrates selected juries in several districts for several years before the decision in Gomez. /4/ No court has suggested that this practice undermined the integrity of the trial process. In fact, magistrates acquired considerable expertise in jury selection in districts where they were regularly used to supervise that process. As one district court concluded, "(w)here a neutral, detached experienced magistrate presides over the jury voir dire, it certainly is not more likely that an innocent man will be found guilty." Hrubec v. United States, 734 F. Supp. at 66. See also United States v. Muller, 733 F.2d at 1395 ("no indication" that jury selection by magistrates seriously diminished the likelihood of an accurate conviction); United States v. Nickens, 729 F. Supp. 1407, 1409 (D.P.R. 1989) (selection of jury by magistrate "does not raise serious questions about the accuracy of the guilty verdict"). The examples supplied in Teague and Saffle v. Parks further demonstrate that the selection of a jury by a magistrate is not the sort of error that the Court intended to include in the second exception to the presumption of nonretroactivity. In Teague, the plurality gave three examples of practices that might fall within the second exception: mob domination, perjured testimony, and confessions obtained through torture. And in Saffle, the Court held that the second exception to the Teague presumption against retroactivity extends only to rules of the "primacy and centrality" of the right to counsel. The statutory right to have an Article III judge conduct jury selection, which the Court recognized in Gomez, is not of the same magnitude as the right to counsel or the right to be convicted on the basis of truthful and reliable testimony. Finally, in Teague, theplurality found that the lack of a fair cross-section of the community on a defendant's petit jury would not "seriously diminish" the accuracy and reliability of the trial process. 489 U.S. at 314-315. As the district court here held, "(e)mpanelment before a federal magistrate is no more likely to impact upon the accuracy of conviction that the use of peremptory challenges to strike jurors of the same race as the defendant." Pet. App. A12. If a racially balanced petit jury is not one of the "bedrock procedural elements" that guard the accuracy of the trial, then a jury selected by a district judge also is not one of those elements. Consequently, because the Gomez decision promulgated a "new rule" that does not fall within either of the Teague exceptions, the Gomez decision does not apply retroactively to petitioner's case. 3. Even if Gomez applied retroactively to collateral challenges to final convictions, petitioner would not be entitled to relief under 28 U.S.C. 2255. Gomez held that the Magistrates Act does not authorize jury selection to be delegated to magistrates; the Court did not rule that Article III prohibits assigning magistrates that task. The Court has made clear that nonconstitutional errors that occur the trial do not "provide a basis for collateral attack unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 179, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). No "complete miscarriage of justice" occurred in this case. As set forth above, allowing magistrates to conduct voir dire and supervise jury selection does not undermine the integrity and reliability of a criminal trial. Thus, this practice is far from an error that "inherently" results in fundamental unfairness. Nor does petitioner suggest that he suffered any prejudice as a result of the magistrate's role in jury selection. Accordingly, the supervision of jury selection by a magistrate at petitioner's trial is not the kind of error that justifies relief under Section 2255. 4. Finally, as the district court held, even if petitioner could surmount the other hurdles barring his claim, he would have to show cause for and prejudice from his failure to object to the delegation of jury selection to a magistrate. See United States v. Frady, 456 U.S. at 167-168. Petitioner does not even attempt to explain his failure to raise his objection either at trial or on appeal. Nor does petitioner make any claim of prejudice, beyond his unexplained assertion, Pet. 7, that the atmosphere of the voir dire that the magistrate conducted was different from the atmosphere that would have surrounded a voir dire conducted by the district court. In the absence of any showing of either cause or prejudice, petitioner cannot raise his Gomez claim in a Section 2255 proceeding. 5. Petitioner asserts that the decision of the court of appeals conflicts with the decisions of other courts of appeals that have addressed the effect of Gomez. Pet. 17-21. Each of the cases cited by petitioner involved the effect of Gomez on cases pending on direct appeal when that case was decided. Since collateral challenges to convictions are governed by different standards of retroactivity and procedural default, the cases cited by petitioner do not conflict with the decision in this case. For similar reasons, petitioner's claim, Pet. 26-29, that the decision below implicitly addressed the question whether a magistrate's participation in jury selection violates Article III of the Constitution also does not warrant review. Even if that were true, petitioner's failure to raise his constitutional claim in the trial court and on direct appeal would be fatal to his assertion of that claim under 28 U.S.C. 2255. 6. There is no need to hold this case pending the decision in United States v. France, No. 89-1363 (argued Oct. 2, 1990). The question in France is whether a defendant is entitled to a reversal of his conviction on direct appeal because a magistrate conducted voir dire when the defendant did not object in the trial court to that procedure. This case involves a collateral attack on a final conviction. Accordingly, the decision in France will not affect the proper disposition of this case. This Court recently denied certiorari in another case raising the same question as this one. See Panico v. United States, cert. denied, No. 90-5147 (Oct. 1, 1990). There is no reason to treat this case differently. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General J. DOUGLAS WILSON Attorney NOVEMBER 1990 /1/ Petitioner also sought to have both convictions set aside on the ground that the police officers who arrested him violated the Fourth Amendment. The district court also denied that part of petitioner's motion, Pet. App. A6-A8, and petitioner does not raise that claim in this Court. /2/ The decision on which the court of appeals relied in this case in rejecting petitioner's claim, Government of the Virgin Islands v. Williams, supra, held that the Federal Magistrate's Act is not violated if a defendant consents to the magistrate's role in jury selection. /3/ Nor is there any merit to petitioner's claim, Pet. 23-25, that 18 U.S.C. 3401 and 28 U.S.C. 636(a)(3) require written consent for a magistrate to conduct jury selection. Those laws by their terms address the requirements for a magistrate's participation in misdemeanor trials. /4/ Our brief in Gomez stated that 51 of the 93 judicial districts had local rules allowing magistrates to preside over jury selection. Post-Gomez litigation suggests that, in addition to the District of Deleware, that practice regularly occurred in several jurisdictions, including the Central District of California, see United States v. Gamble, appeal pending, No. 89-50067 (9th Cir.); the District of Puerto Rico, see United States v. Martinez-Torres, No. 87-2007 (1st Cir. Aug. 20, 1990); the Central District of Illinois, see United States v. Wey, 895 F.2d 429 (7th Cir.), cert. denied, 110 S. Ct. 3283 (1990); the Eastern District of New York, see United States v. Vanwort, 887 F.2d 375 (2d Cir. 1989), cert denied, 110 S. Ct. 1927, 1936 (1990); United States v. Mang Sun Wong, 884 F.2d 1537 (2d Cir. 1989), cert. denied, 110 S. Ct. 1140 (1990); and the District of the Virgin Islands, see Government of the Virgin Islands v. Williams, 892 F.2d 305 (3d Cir. 1989), cert. denied, 110 S. Ct. 2211 (1990).