TERRY SAWYERS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5426 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 Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-8a) is reported at 902 F.2d 1217. JURISDICTION The judgment of the court of appeals was entered on May 14, 1990. The petition for a writ of certiorari was filed on August 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether it was plain error, in violation of the Federal Magistrate's Act and Article III of the Constitution, for a magistrate to deliver an Allen charge to the jury in the district court's absence. STATEMENT After a jury trial in the United States District Court for the Western District of Kentucky, petitioner was convicted on on count of manufacturing marijuana, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 78 months' imprisonment, to be followed by four years' supervised release. The court of appeals affirmed. 1. Police officers discovered 1,251 marijuana plants growing on petitioner's property. Pet. App. 2a. The events giving rise to the question presented occurred during the jury's deliberations. The jury at petitioner's trial began deliberations at about 2:30 p.m. on the second day of trial. At approximately 5:30 p.m., the jury informed the district court that it was deadlocked. Rather than have the jury continue its deliberations that evening, the court sent the jurors home for the night. Because of a family emergency in another city, the district judge assigned a federal magistrate to preside over jury deliberations the next day. When the proceedings resumed in the morning, the magistrate informed the parties that he intended to give an Allen charge /1/ to the jury. Neither party objected, even though the magistrate twice asked the parties if they wished to put anything in the record before he gave the charge. The magistrate then gave the jury a standard Allen charge. Two hours later, the jury returned a guilty verdict. Pet. App. 5a-6a; Gov't C.A. Br. 3. 2. On appeal, petitioner claimed for the first time that his conviction could not stand because the magistrate delivered an Allen charge to the jury. Petitioner relied on this Court's decision in Gomez v. United States, 109 S. Ct. 2237 (1989), which held that the Federal Magistrates Act, Pub. L. No. 90-578, 82 Stat. 1108 (1968), does not authorize the district courts to delegate jury selection at felony trials to magistrates over the defendant's objection. The court of appeals rejected that claim and affirmed. Pet. App. 1a-8a. It noted that petitioner had not objected to the magistrate's delivery of a supplemental jury instruction at trial, and that the magistrate had given a standard Allen charge. Id. at 5a. The court also reasoned that "the act of reading a charge to a jury is far different than presiding over jury selection," because during jury selection "rulings have to be made on objections, and challenges and considerable discretion must be exercised by the presiding judicial officer." Id. at 6a. ARGUMENT Petitioner contends that the magistrate's delivery of an Allen charge to the jury at his trial conflicts with this Court's decision in Gomez and violates Article III of the Constitution. Pet. 4-13. 1. At the outset, petitioner's failure to object to the magistrate's reading of the Allen charge is fatal to his claim. In Gomez, this Court framed the issue in that case 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 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." Id. at 2248 (emphasis added). Accordingly, as the Second Circuit held in United States v. Mang Sun Wong, 884 F.2d 1537, 1546 (1989), cert. denied, 110 S. Ct. 1140 (1990), this Court explicitly limited its holding to situations in which the district court delegated jury selection to a magistrate over the defendant's objection. Gomez does not require reversal of a conviction when the defendant has agreed to allow the magistrate to conduct voir dire. By the same reasoning, petitioner's failure to object to the magistrate's delivery of an Allen charge bars his reliance on Gomez. 2. Petitioner's claim also fails on the merits. In Gomez, the Court construed Section 636(b)(3) of the Federal Magistrates Act, 28 U.S.C. 636(b)(3), which provides that district courts may assign to magistrates "such additional duties as are not inconsistent with the Constitution and laws of the United States." The Court held that Congress did not intend to include supervision of jury selection among the "additional duties" that a magistrate could perform. Jury selection is part of a felony trial, the Court noted, and Congress did not intend to permit magistrates to preside at felony trials. Gomez, 109 S. Ct. at 2246. Congress also did not provide any mechanism for a district court to review a magistrate's decisions during jury selection. Id. at 2246-2247. Finally, a district court may not be able to provide meaningful review of a magistrate's decisions during jury selection, the Court reasoned, because a transcript cannot capture the nuances of voir dire. Id. at 2247. Gomez therefore rests on this Court's interpretation of the Federal Magistrates Act. Gomez leaves district courts free to assign "additional duties" to magistrates as long as those duties are of the kind contemplated by the Act. Although the reading of an Allen charge is part of the trial, it differs significantly from jury selection. As the court of appeals concluded, a magistrate's delivery of a standard supplemental instruction to the jury involves no discretionary decisions or rulings on evidence. Moreover, the transcript of the supplemental instruction will reveal exactly what the magistrate said to the jury. Thus, the district court and the court of appeals can review the magistrate's action if necessary. For those reasons, Gomez does not require the conclusion that delivering an Allen charge is not one of the "additional duties" that a magistrate can perform. 3. A magistrate's delivery of an Allen charge also does not violate Article III of the Constitution. Article III imposes no rigid bar to the use of magistrates in criminal trials. As this Court has explained, "the Constitution does not require that all persons charged with federal crimes be tried in Art. III courts." Swain v. Pressley, 430 U.S. 372, 382-382 (1977). Moreover, even if defendants in federal felony prosecutions enjoyed the right to a trial by an Article III judge, that right does not prevent the district court from assigning to magistrates nondiscretionary duties such as delivering an Allen charge to the jury. In United States v. Raddatz, 447 U.S. 667, 683 (1980), this Court held that the delegation of hearings on the suppression of evidence in federal criminal trials "does not violate Art. III so long as the ultimate decision is made by the district court." The Court reasoned that "the entire process takes place under the district court's total control and jurisdiction," and that "the magistrate acts subsidiary to and only in aid of the district court." 447 U.S. at 681. Here, as in Raddatz, the Article III judge was available to review the magistrate's Allen charge, and the court of appeals also could provide meaningful review. /2/ Permitting a district court to use a magistrate in the manner that was done here therefore does not interfere with the "essential attributes" of judicial power. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 81 (1982) (plurality opinion). Accordingly, there was no Article III violation in this case. 4. There is no need to hold this case pending the Court's decision in United States v. France, cert. granted, 110 S. Ct. 1921 (argued Oct. 2, 1990) (No. 89-1363). The question in France is whether a defendant is entitled to a reversal of his conviction because a magistrate conducted voir dire, even though the defendant did not object in the trial court to that procedure. France 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 that circuit. Petitioner, however, does not claim that an objection to magistrate's delivery of an Allen charge would have been futile under controlling Sixth Circuit precedent. Moreover, the difference between delivering a standard supplemental instruction and presiding over the selection of the jury is sufficiently great that even if France holds that assigning jury selection to a magistrate is plain error, that decision is not likely to affect this case. 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/ See Allen v. United States, 164 U.S. 492 (1896). /2/ Indeed, in this case the court of appeals reviewed the substance of the Allen charge. See Pet. App. 7a.