RAYMOND WILLIAMS, PETITIONER V. GOVERNMENT OF THE VIRGIN ISLANDS No. 89-6855 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 Third Circuit Brief For The Respondent OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A22) is reported at 892 F.2d 305. JURISDICTION The judgment of the court of appeals was entered on December 27, 1989. The petition for a writ of certiorari was filed on March 5, 1990. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether this Court's decision in Gomez v. United States, 109 S. Ct. 2237 (1989), requires reversal of petitioner's convictions even though he did not object to a magistrate's conducting voir dire. STATEMENT After a jury trial in the District Court of the Virgin Islands, petitioner was convicted of second degree murder, in violation of 14 V.I. Code 922(b), voluntary manslaughter, in violation of 14 V.I. Code 924(2), attempted murder, in violation of 14 V.I. Code 331 and 922, and possession of a dangerous weapon during the commission of a felony, in violation of 14 V.I. Code 2251(a)(2). He was sentenced to 60 years' imprisonment. 1. The evidence at trial showed that, on January 1, 1988, petitioner began beating his girlfriend. Her brothers and mother, who lived nearby, came to her aid. During the ensuing struggle, petitioner stabbed to death one of the brothers and the mother. The other brother was seriously wounded. Pet. App. A2-A3. At petitioner's trial, a magistrate presided over jury selection. Petitioner did not object to the magistrate's participation. Pet. App. A3-A4. 2. The court of appeals affirmed. Pet. App. A1-A22. The court first ruled (id. at A10) that petitioner could raise on appeal his challenge to the magistrate's role in jury selection even though he failed to object at trial. The court reasoned that such an objection was "jurisdictional in nature" and thus could be raised at any time. Ibid. The court held, however, that this Court's decision in Gomez v. United States, 109 S. Ct. 2237 (1989), did not require reversal of petitioner's convictions. Pet. App. A11-A13. In the court's view, Gomez stands only for the proposition that a district court cannot force a defendant to accept a magistrate as the presiding officer at voir dire. The court reasoned that the Federal Magistrates Act is not violated as long as the defendant consents to the magistrate's role in jury selection. /1/ The court of appeals then noted that petitioner failed to object to the magistrate's presiding over jury selection; it therefore concluded that the magistrate's supervision of jury selection in this case did not violate the Magistrates Act. Id. at A14-A15. Judge Mansmann concurred in the result. Pet. App. A16-A21. She reasoned that, because petitioner did not object to jury selection by the magistrate, he could obtain reversal of his convictions only if the magistrate's supervision of jury selection was plain error. Judge Mansmann believed that the plain-error standard was not met; she therefore agreed with the majority that reversal was not warranted. Id. at A21. ARGUMENT Petitioner contends (Pet. 5-16) that his convictions should 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 certiorari to review the Ninth Circuit's decision in United States v. France, 886 F.2d 223 (1989), cert. granted, No. 89-1363. In that case, the Court will decide 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 precedent. On April 23, 1990, this Court also denied two petitions seeking review of the Second Circuit's decision in United States v. Vanwort, 887 F.2d 375 (1989). See Dasilva v. United States, No. 89-1084; Chapoteau v. United States, No. 89-6313. In Vanwort, the Second Circuit held that a defendant's failure to object to the magistrate's presiding over jury selection meant that he could not obtain reversal of his conviction under Gomez. Like France, this case raises the broad question whether a defendant who fails to object to a magistrate's conducting voir dire can obtain a reversal under Gomez. This case, however, does not raise the precise issue presented by France -- i.e., whether the lack of an objection to the magistrate's conducting voir dire may be excused on the ground of "futility." And the Court's denial of the petitions arising from the Second Circuit's decision in Vanwort suggests that the petition in this case should also be denied. Nevertheless, this Court's disposition of France may bear on the issue raised by petitioner. 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 /1/ The court stated that the Magistrates Act allows district courts to delegate to magistrates any duty "not inconsistent with the Constitution and laws of the United States." Pet. App. A11. And the court ruled that a delegation of jury selection to a magistrate with a defendant's consent is not inconsistent with the Constitution or laws of the United States. Id. at A11-A12.