MICHAEL WAYNE ALLEN, PETITIONER V. UNITED STATES OF AMERICA No. 90-7204 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 OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A6) is reported at 921 F.2d 78. The order of the district court (Pet App. B1-B2) is not reported. JURISDICTION The judgment of the court of appeals was entered on December 10, 1990. The petition for a writ of certiorari was filed on February 25, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner is entitled to relief under 28 U.S.C. 2255, where he claimed for the first time that the district court erred in having the magistrate read to the jury the instructions the court had prepared in consultation with counsel for petitioner and the government. STATEMENT 1. After a jury trial in the United States District Court for the Eastern District of Kentucky, petitioner was convicted on one count of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846, and one count of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. /1/ He was sentenced to a total term of 137 months' imprisonment, to be followed by a three-year term of supervised release. In August 1989, the court of appeals affirmed. C.A. App. 1-14. 2. In October 1989, petitioner filed a motion under 28 U.S.C. 2255, claiming for the first time that the district court erred in having the magistrate read to the jury the instructions the court had prepared. In addition, petitioner contended that his trial counsel had rendered ineffective assistance by failing to object to the magistrate's reading of the jury instructions. Pet. App. A2; see C.A. App. 15-21. The United States magistrate recommended that the district court dismiss petitioner's motion. Pet. App. C1-C3. The magistrate found that the district judge had "advised (petitioner) and his counsel that he was going to have Magistrate Cook read the court's instructions to the jury. * * * Despite a specific request to do so, the parties did not object to the procedure outlined by Judge Wilhoit." Id. at C1 (citations omitted). Furthermore, the magistrate determined, the district judge had "made it clear (to the jury) that the instructions to be read by Magistrate Cook were his instructions -- not the magistrate's." Id. at C2. Finally, the magistrate pointed out that the record showed "there was no objection voiced as to Magistrate Cook performing the ministerial task of reading Judge Wilhoit's instructions to the jury or to the instructions themselves." Id. at C3. Accordingly, the magistrate determined that petitioner's case was readily distinguishable from Gomez v. United States, 109 S. Ct. 2237 (1989) (Magistrates Act does not authorize magistrate to conduct voir dire over the defendant's objection). In February 1990, the district court adopted the magistrate's report and recommendation and dismissed petitioner's motion. Pet. App. B1-B2. The court rejected petitioner's contention that the magistrate "exceeded his jurisdiction under the Magistrate's Act when he read instructions to the jury." Id. at B1. The court found that (t)hese instructions were prepared by the Court. The attorneys had an opportunity to object to the Court's instructions. The Court also asked the attorneys if they objected to his proposal that the Magistrate read the instructions. No defense attorney voiced any objection to the procedure. Ibid. In these circumstances, the court determined, "reading the instructions to the jury was a ministerial task. The Court had prepared the instructions, was to listen to any objections to the charge, and had informed the jury that the instructions were prepared by him." Id. at B1-B2. /2/ 3. In December 1990, the court of appeals affirmed. Pet. App. A1-A6. The court found that (t)he magistrate made no decisions or rulings with respect to the instructions. Instead, the magistrate merely read the instructions which had already been prepared by the judge. * * * The magistrate only performed the ministerial function of actually reading the final instructions to the jury. Id. at A4. In addition, the court determined that "the importance of the instructions was in no way diluted by this procedure. The jury was informed that the instructions were those of the judge and not the magistrate." Ibid. In these circumstances, the court held, the "ultimate authority and responsibility for making an informed final decision rested with the district judge," and thus "the magistrate did not exceed his delegated authority." Ibid. Finally, the court of appeals found it clear from the record that petitioner had made no objection to the magistrate's reading of the instructions, either before or after the jury was charged, despite clear invitations to do so. Id. at A4-A5. /3/ ARGUMENT 1. Petitioner contends (Pet. 4-7) that the decision below, which sanctions the use of a magistrate to charge the jury, cannot be squared with Gomez v. United States, 109 S. Ct. 2237 (1989), and other courts of appeals' cases applying that decision. That claim is wide of the mark. As the court of appeals made clear, "(t)he use of a magistrate to conduct voir dire and jury selection is not the issue on appeal." Pet. App. A3; see note 2, supra. Accordingly, the conflict petitioner alleges (Pet. 5-7) between the decision below and other decisions applying Gomez is not presented here. 2. Petitioner also renews his claim that the magistrate exceeded his authority by reading instructions to the jury. At the outset, the procedural posture of petitioner's claim is fatal. Since petitioner first raised his challenge to the magistrate's participation at trial in a motion under 28 U.S.C. 2255, he must show both "cause" justifying his failure to object and "actual prejudice" from the alleged error in order to prevail. United States v. Frady, 456 U.S. 152, 167-168 (1982). On this record, petitioner cannot make -- and indeed has not even tried to make -- the requisite showing. Here, the district court told petitioner and his counsel of its intention to have the magistrate deliver the instructions; the court invited petitioner and his counsel to object to the procedure, but they did not, either before or after the reading of the instructions. Indeed, the record shows that petitioner personally chose to raise no objection to this procedure. Pet. App. A5, A6. In these circumstances, petitioner is not entitled to relief on his belatedly raised claim. See United States v. Gagnon, 470 U.S. 522, 527-529 (1985); United States v. Frady, 456 U.S. at 162-168; Yakus v. United States, 321 U.S. 414, 444 (1944). In any event, petitioner's claim is without merit. The magistrate in this case did not exercise any discretion or make any legal rulings at all. He performed the purely ministerial act of reading the instructions that had aleady been prepared by the district court in consultation with counsel for both sides. Once the instructions were read, the district judge returned to rule on any objections from counsel. Moreover, it was also made clear to the jury that the instructions had been prepared by the district court and would only be read by the magistrate. There was thus no danger that the jury would consider the instructions less important because they were delivered by the magistrate instead of the district court. Furthermore, while this court observed in Gomez that there was no mechanism for review of a magistrate's decisions during voir dire (109 S.Ct. at 2246-2247), the district court and court of appeals here could easily tell from a transcript whether the magistrate correctly read the jury instructions as they were prepared by the court. In sum, the reasons that led the Court to conclude in Gomez that jury selection was not a duty Congress intended the district courts to delegate to magistrates do not obtain here. Nothing in Gomez prevents the conclusion that the reading of the instructions that occurred here was one of the "additional duties" that district courts may permissibly delegate under the Federal Magistrates Act, 28 U.S.C. 636(b)(3). See United States v. Sawyers, 902 F.2d 1217 (6th Cir. 1990) (upholding magistrate's delivery of Allen charge to jury), cert. pending, No. 90-5426. 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 KATHLEEN A. FELTON Attorney APRIL 1991 /1/ Petitioner was acquitted on the third count of using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1). /2/ The court also rejected petitioner's contention that the magistrate "exceeded his jurisdiction by conducting voir dire," and distinguished Gomez on the basis that petitioner here "did consent to the Magistrate's participation in voir dire." Pet. App. B2. Petitioner sought no further review of that issue, and it is not before the Court in this case. For that reason, this case should not be held pending the disposition of Peretz v. United States, No. 90-615 (argued Apr. 23, 1991). /3/ The court of appeals also rejected petitioner's claim that his counsel had rendered ineffective assistance by not objecting to the magistrate's participation in charging the jury. Pet. App. A5-A6. Petitioner has sought no further review of that aspect of the court of appeals' judgment.