UNITED STATES OF AMERICA, PETITIONER V. DARLINA K. FRANCE No. 89-1363 In The Supreme Court Of The United States October Term, 1990 On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Petition For Rehearing The Solicitor General, on behalf of the United States, petitions for rehearing of the Court's order of January 22, 1991, affirming the judgment below by an equally divided Court. 1. On April 23, 1990, the Court granted certiorari in this case to consider whether the decision in Gomez v. United States, 490 U.S. 858 (1989), requires reversal of a defendant's conviction even though the defendant did not object to having a magistrate conduct voir dire. Gomez held that the Federal Magistrates Act, 28 U.S.C. 636, does not authorize magistrates to conduct jury selection in felony criminal trials over a defendant's objection and that a magistrate's supervision of jury selection is not harmless error. In this case, the Ninth Circuit held that its prior decisions authorizing a magistrate to conduct jury selection rendered futile any objection to a magistrate's supervision of jury selection and thereby excused a defendant's failure to object to that procedure. The United States petitioned for a writ of certiorari. We contended that the Ninth Circuit's ruling violated the settled principle that a defendant must object to a trial error in order to preserve that claim for an appeal. We also argued that the Ninth Circuit erred in excusing respondent's failure to object in this case under the so-called "futility" exception to the contemporaneous objection rule. We noted that the Ninth Circuit's decision conflicts with decisions of the Second and Seventh Circuits /1/ and that the Ninth Circuit's decision would require the retrial of numerous defendants in the District of Hawaii and in other districts that routinely used magistrates to select jurors prior to the Gomez decision. Subsequent briefing on the merits in this case also raised the related questions whether a magistrate's supervision of voir dire is plain error and whether Article III of the Constitution requires a district judge to conduct jury selection. Argument in this case was held on October 2, 1990, before eight Justices. /2/ On January 22, 1991, the Court affirmed the Ninth Circuit's judgment by an equally divided Court. At the same time, the Court granted the petition for a writ of certiorari in Peretz v. United States, No. 90-615. In that case, the Second Circuit held that a defendant whose counsel consented to the supervision of jury selection by a magistrate was not entitled to have his conviction reversed under Gomez. The Court's order granting certiorari directed the parties to address the following questions: 1. Does 28 U.S.C., Section 636, permit a magistrate to conduct the voir dire in a felony trial if the defendant consents? 2. If 28 U.S.C., Section 636, permits a magistrate to conduct a felony trial voir dire provided that the defendant consents, is the statute consistent with Article III? 3. If the magistrate's supervision of the voir dire in petitioner's trial was error, did the conduct of petitioner and his attorney constitute a waiver of the right to raise this error on appeal? 2. Rehearing is appropriate in this case. The Court's decision affirming by an equally divided vote leaves in place the Ninth Circuit's judgment without resolving the conflicts among the courts of appeals. See Neil v. Biggers, 409 U.S. 188, 190-192 (1972) (an affirmance by an equally divided Court has no precedential value). Accordingly, the Court's decision does not dispel the confusion among the circuits whether there is a "futility" exception to the contemporaneous objection rule and, if so, whether that exception applies when the asserted futility arises from prior authority permitting, but not requiring, the district court action in question. The Court's decision in Peretz will not necessarily resolve the questions left open by the Court's action in this case. The Ninth and First Circuits excused the defendants' failure to object on the ground that any objection would have been futile in light of prior circuit case law. In light of the facts of Perez and the questions presented in the Court's order granting certiorari in that case, it seems very possible that the "futility" issue will not be resolved in that case. The defense in Peretz affirmatively consented to having a magistrate conduct jury selection. Accordingly, even if the government prevails in Peretz, the decision in that case may be regarded as inapplicable to cases such as France, in which the defendant has not consented but has merely failed to object to having a magistrate conduct jury selection. In light of the large number of cases in the First and Ninth Circuits that will likely have to be retried if the judgment in France is not reversed, we submit that rehearing is entirely appropriate here. The toll on prosecutorial and judicial resources involved in retrying these cases should not occur by default, especially when the Court is in a position to render a decision on the merits after reargument. 3. This Court frequently has granted petitions for rehearing after a decision by an equally divided Court, especially when, as here, a new Justice has become available to cast the deciding vote. See, e.g., Indian Towing Co. v. United States, 349 U.S. 902 and 926 (1955); Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 349 U.S. 901 and 926 (1955); MacGregor v. Westinghouse Elec. & Mfg. Co., 327 U.S. 758 and 812 (1953); Bruce's Juices, Inc. v. American Can Co., 327 U.S. 758 and 812 (1946); Halliburton Oil Well Cementing Co. v. Walker, 326 U.S. 696 (1946); 327 U.S. 812 (1946); Commercial Molasses Corp. v. New York Tank Barge Corp., 313 U.S. 541 and 596 (1941); New York, C. & St. L. R.R. v. Frank, 313 U.S. 538 and 596 (1941); Toucey v. New York Life Ins. Co., 313 U.S. 538 and 596 (1941); Gray v. Powell, 312 U.S. 666 (1941); 313 U.S. 596 (1941); Baltimore & O. Ry. v. Kepner, 313 U.S. 542 and 597 (1941); United States v. One 1936 Model Ford V-8 Deluxe Coach, 305 U.S. 564 and 666 (1938); United States v. Sischo, 260 U.S. 697, 698 and 701 (1922); United States v. Grimaud, 216 U.S. 614, 615 (1910); Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 586 (1895); 158 U.S. 601, 602-607 (1895); Selma, R. & D. R.R. v. United States, 122 U.S. 636, 637 (1887); Home Ins. Co. v. New York, 119 U.S. 129, 148 (1886); 122 U.S. 636 (1887). See also R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice Section 15.6, at 625 (6th ed. 1986). This case, moreover, could be reheard in the April session of this Term without the need for scheduling a special argument session, since the Court's oral argument calendar for April is not yet full. Additional briefing is unnecessary, and this case could be reargued in tandem with Peretz. 4. If the Court declines to order reargument in this case, the petition for rehearing should at least be held pending the Court's decision in Peretz. It is possible that the decision in Peretz may bear on the validity of the Ninth Circuit's reasoning in this case. The Ninth Circuit should be given the opportunity to reexamine its decision in this case in light of this Court's disposition of Peretz. The Court followed that course in Parker Seal Co. v. Cummins, 429 U.S. 65 (1976). There, after the Court affirmed by an equally divided Court, it granted certiorari to consider another case raising the same issue. The Court held a petition for rehearing pending its ruling on the merits in the second case. When the second case, Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), was decided, the Court granted the petition for rehearing, vacated its initial judgment and the judgment of the court of appeals, and remanded the case to the court of appeals for further consideration in light of Hardison. Parker Seal Co. v. Cummins, 433 U.S. 903 (1977). That procedure also would be appropriate here. In order to expedite the processing of this petition and to allow the case to be reargued in tandem with Peretz, we urge the Court, if it orders a response to be filed, to order that the response be filed by March 15, 1991. To expedite the process, we are serving this petition by overnight mail and by telefax. CONCLUSION The petition for rehearing should be granted, and this case should be set for reargument in tandem with Peretz v. United States, cert. granted, No. 90-615 (Jan. 22, 1991). In the alternative, the petition should be held pending the resolution of Peretz v. United States. Respectfully submitted. KENNETH W. STARR Solicitor General FEBRUARY 1991 /1/ The Ninth Circuit's decision here conflicts with the Second Circuit's decisions in United States v. Vanwort, 887 F.2d 375 (1989), cert. denied, 110 S. Ct. 1936 (1990), and United States v. Musacchia, 900 F.2d 493 (1990), petition for cert. pending, No. 90-513. After this Court granted the petition, the First Circuit in United States v. Martinez-Torres, 912 F.2d 1552 (1990), aligned itself with the Ninth Circuit by endorsing a "futility" exception to the contemporaneous objection rule. The First Circuit also held that the supervision of jury selection by a magistrate amounts to plain error. That ruling conflicts with the Seventh Circuit's decision in United States v. Wey, 895 F.2d 429, cert. denied, 110 S. Ct. 3283 (1990). /2/ Justice Souter joined the Court on October 9, 1990.