Gonzalez v. US

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Authorship: Scott Stewart, a student in the Supreme Court Litigation Clinic at Stanford Law School, maintains this page.

Contents

[edit] Briefs and Documents

Docket: 06-11612

Argument Transcript

Merits briefs

Amicus briefs

Certiorari stage

[edit] Pre-Argument Articles

[edit] Grant write-up

This section is taken from an entry by Eliza Presson that originally appeared on SCOTUSblog.

Can the counsel for a federal criminal defendant waive that defendant’s constitutional right to have an Article III judge, or must the defendant himself explicitly agree? This is the question presented in Gonzalez v. United States, one of the seventeen new cases in which cert. was granted Tuesday.

In December 2004, petitioner Homero Gonzalez was indicted on conspiracy and drug charges arising from his role in a major drug-trafficking operation. In January 2005, petitioner and his attorney were in court to begin jury selection for his trial. Before jury selection began, a magistrate judge asked the prosecutor and petitioner’s attorney to “approach the bench.” She then asked the two attorneys whether the parties would consent to having her preside over the jury selection; both attorneys agreed. The record shows that at no time did Gonzalez – who does not speak English – consent to have a non-Article III judge preside over jury selection; it also shows that Gonzalez was never informed by the judge that his attorney had consented.

On appeal, Gonzalez – now represented by new counsel – argued that “the magistrate judge’s presiding over jury selection was improper because the record did not reflect [his] knowing and voluntary consent” to the substitution. The Fifth Circuit acknowledged an Eleventh Circuit decision, United States v. Maragh, which held that the “‘defendant’s personal consent is required for the delegation of jury selection to be constitutionally valid,’” but it ultimately agreed with several other circuits that personal consent is not required. Certain rights are so fundamental that they must be waived by the defendant personally, the Fifth Circuit explained, but Gonzalez had not provided any proof that “the right to have an Article III judge conduct voir dire” was one of them.

In his petition for certiorari, petitioner alleged a circuit split over whether a federal criminal defendant must consent personally to a magistrate judge presiding over jury selection or if consent from counsel is enough. In 1991, the Court held in Peretz v. United States that “a district court does not violate the defendant’s constitutional right to an Article III judge” when jury selection is delegated to a magistrate judge, with the defendant’s consent. Since Peretz, the courts of appeals have disagreed on what constitutes “consent.” The Eleventh Circuit in Maragh required “the defendant’s personal consent”; by contrast, two circuits – the First and Seventh – have not required personal consent, while two other circuits – the Sixth and Tenth – have not directly addressed whether counsel’s consent suffices but have held that the litigant’s waiver must be “voluntary, knowing and intelligent.” Petitioner also argued that the Court should grant cert. to address whether the plain error standard applies, maintaining that, contrary to the Fifth Circuit’s decision, it does not apply.

Opposing certiorari, the government first emphasized that “[n]othing in Peretz suggests that a defendant must state his express personal consent to a magistrate judge’s supervision of voir dire”; indeed, the government argued, “the Court’s opinion indicates that defense counsel’s consent on his client’s behalf if sufficient.” The government acknowledged that the courts of appeals were divided on the issue of consent, but it contended that certiorari was not warranted because the conflict is quite one-sided: only one court – the Eleventh Circuit in Maragh – has reached a contrary result, and that decision is erroneous. In any event, the government concluded, the case would be a bad vehicle to review the question presented because Gonzalez did not object in the district court; his case should thus be reviewed only for plain error, and he cannot show any prejudice from the magistrate’s supervision of voir dire.

On Tuesday, the Court announced that it had granted certiorari in Gonzalez v. US, limited to two questions: “1) Must a federal criminal defendant explicitly and personally waive his right to have an Article III judge preside over voir dire? 2) Did the court of appeals err when it reviewed petitioner’s objection for plain error?”

The case will likely be heard in either January or February.

[edit] Argument Preview

On January 8, 2008, the Supreme Court will hear argument in No. 06-11612, Gonzalez v. United States, which presents two questions: (1) whether a federal criminal defendant must explicitly and personally waive his right to have an Article III judge preside over voir dire; and (2) whether the court of appeals properly reviewed for plain error petitioner’s objection – raised for the first time on appeal – to the delegation of voir dire to a magistrate judge.

[edit] Background

On December 7, 2004, a federal grand jury indicted Homero Gonzalez on several drug-related offenses. Gonzalez pleaded not guilty and chose to be tried by a jury. Prior to jury selection, Gonzalez appeared four times before a district judge and twice before a magistrate judge.


On January 21, 2005, the magistrate judge conducted jury selection. At no time prior to this date had the district judge mentioned delegating jury selection to the magistrate judge. Before jury selection began, the magistrate judge summoned counsel for both sides to the bench, where she indicated that she “need[ed] to ask the parties at this time if they are going to consent to having the United States Magistrate Judge proceed in assisting in the jury selection of this case.” After both the prosecutor and Gonzalez’s counsel responded in the affirmative, the magistrate judge then stated, “The parties have agreed through consent that this Court will be assisting through the process of jury selection.” At no time did she ask Gonzalez himself whether he consented to having a magistrate judge conduct jury selection, and only after this meeting at the bench did she ask whether Gonzalez was present in the courtroom and whether he required a translator (which he did).

Voir dire proceeded. The defense did not make any objections during jury selection, and the case proceeded to trial before a district judge. The jury found Gonzalez guilty on all counts and sentenced him to 190 months of imprisonment.

Gonzalez appealed to the U.S. Court of Appeals for the Fifth Circuit, arguing that because he did not personally consent to the district judge’s delegation of jury selection to a magistrate judge, the case should be remanded for a new trial. This claim implicated the Federal Magistrates Act, 28 U.S.C. § 636(b)(3), which provides that a federal district court may delegate certain pre-trial Article III duties to a magistrate judge, as well as two Supreme Court cases considering the circumstances in which an Article III court may delegate voir dire: Gomez v. United States, in which the Court held that permitting a magistrate judge to conduct voir dire over the defendant’s express objection violates the Federal Magistrates Act, and Peretz v. United States, which holds that both the Act and Article III authorize delegation of voir dire with the defendant’s consent. Against this background, the court of appeals acknowledged that Peretz did not clearly address the form a defendant’s consent must take to effectuate a permissible delegation of voir dire to a magistrate judge: must a defendant personally consent, or does defense counsel’s consent suffice? After noting that only one court of appeals – the Eleventh Circuit in United States v. Maragh (1999) – had adopted Gonzalez’s position, and stating that other courts of appeals disagree with the Eleventh Circuit’s position, the Fifth Circuit panel concluded that, given the unsettled state of the law interpreting Peretz, any error in the delegation in this case could not be plain error. Alternatively, the court of appeals concluded, Gonzalez’s argument failed even under a less demanding standard: in its view, Peretz does not require personal waiver, and the right to have an Article III judge conduct voir dire is not so fundamental that a defendant must personally waive it. Thus, the court held, the right to have an Article III judge conduct voir dire is one that may be waived through consent of counsel, and counsel validly waived that right in this case.

[edit] Petition for Certiorari

Gonzalez filed a petition for certiorari, which the Supreme Court granted on September 25, 2007.

Gonzalez’s petition advanced two basic arguments. First, he argued that although he raised his claim of impermissible delegation for the first time on appeal, the plain error standard does not apply because “the very nature of his claim – i.e., that a defendant must personally consent in a knowing and voluntary manner to delegation of jury selection to a magistrate judge and that defense counsel’s consent is not by itself sufficient – presupposes no objection in the district court.” Thus, de novo review applies. Gonzalez emphasized that the Eleventh Circuit, in Maragh, held that the plain error standard does not apply to such a claim raised for the first time on appeal.

Second, Gonzalez argued that, contrary to the Fifth Circuit’s decision, both Article III and the Act require that a federal criminal defendant personally consent to delegation of voir dire to a magistrate judge. Under Peretz, the crucial question is whether a litigant has personally and knowingly agreed to a delegation of jury selection to a magistrate judge. The right to have an Article III judge preside over jury selection is among the rights of a criminal defendant that are so fundamental – on par with the right to a jury trial, the right to counsel, and the right to plead not guilty – that an effective waiver requires a defendant’s personal consent. Gonzalez also noted that the Fifth Circuit’s conclusion directly conflicts with the Eleventh Circuit’s decision in Maragh on this issue, and that several decisions of other courts of appeals demonstrate confusion on how to interpret Peretz.

The United States argued that certiorari was unwarranted for several reasons. First, it argued that the decisions in Gomez and Peretz do not require personal waiver; rather, the critical distinction between Peretz and Gomez was that in Peretz, defense counsel affirmatively welcomed delegation of voir dire to the magistrate judge (as Gonzalez’s trial counsel did in this case), whereas in Gomez, the defense had explicitly objected to it. Moreover, the right to have an Article III judge preside over voir dire is not among the few rights that are so fundamental as to require a defendant’s personal waiver. Rather, the decision whether to have a magistrate judge preside over voir dire is a tactical one, properly left to counsel. Second, the United States argued that only the Eleventh Circuit had reached a result contrary to the Fifth Circuit, and “[this] narrow conflict . . . does not warrant review by th[e] Court at this time,” as these are the only two courts of appeals to consider this precise issue and the Eleventh Circuit might (correctly) change course. Third, the United States argued that this case would be a poor vehicle for review of this conflict because Gonzalez failed to object before the trial court and thus the claim is subject to plain error, and under that standard – or even under a lesser standard – Gonzalez is not entitled to reversal.

[edit] Merits Briefing

In his merits brief, Gonzalez reiterates his characterization of Gomez and Peretz (arguing that the defendant’s consent is the crucial difference in the two cases), briefly contends that the Constitution requires a defendant’s personal consent to have a magistrate judge preside over voir dire, then shifts to his main argument on the first question presented: that the Court should avoid any constitutional question and instead should interpret the Act to require personal and explicit consent to delegation of jury selection to a magistrate judge.

This main argument proceeds in several steps. Gonzalez first emphasizes the importance of independent Article III judges to our constitutional system and argues that magistrate judges lack this independence. Next, he contends that having an independent judge conduct felony jury selection is “a core Article III concern” because jury selection is a “critical stage” of the proceeding and is very difficult to review. Thus, a constitutionally effective waiver of the right to an Article III judge at felony jury selection requires a defendant’s express and personal consent. But, given the seriousness of this constitutional question, the Court should avoid it and instead should interpret the Act in pari materia with 18 U.S.C. § 3401(b) (which requires a defendant’s express consent to be tried before a magistrate judge for misdemeanor charges), to require a defendant’s personal and explicit consent to have a magistrate judge preside over felony jury selection.

Alternatively, Gonzalez argues that an effective waiver “at least requires the record to reflect the defendant’s knowing and voluntary acquiescence in his attorney’s explicit waiver of the right to an Article III judge.” Although the record in Peretz demonstrated such acquiescence, in this case Gonzalez was not present at the bench and did not have a translator at the time – and thus he cannot be presumed to have acquiesced in his trial counsel’s decision.

With respect to the second question presented, Gonzalez presents four arguments why plain error review was improper. First, he invokes Federal Rule of Criminal Procedure 51(b), which provides, in relevant part, that “[i]f a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party,” to argue that he did not himself have an opportunity to object in the district court; as such, failure to object to the magistrate judge presiding over voir dire cannot be attributed to him. Thus, Federal Rule of Criminal Procedure 52(b)’s plain error standard does not apply, and he is entitled to de novo review. Second, he argues that Rule 52(b) does not apply because a defendant can forfeit his basic right to an Article III judge only by a valid waiver, and he made no such waiver. Third, he argues that the nature of his claim necessarily requires that it be raised for the first time on appeal. Fourth, he asserts that application of Rule 52(b) as a procedural bar would serve no legitimate governmental interest in this case, and would also unfairly subject him to plain error review when a similarly situated state defendant would be entitled to de novo review (since waiver of a federal constitutional right is a federal question, state procedural bars would not preclude de novo review by the Supreme Court). Finally, and alternatively, Gonzalez argues that even under plain error review, he is entitled to reversal.

In its brief on the merits, the United States first argues that under the Act, defense counsel may consent on behalf of a defendant to the delegation of jury selection to a magistrate. In so arguing, the United States counters Gonzalez’s interpretation of Gomez and Peretz: “[T]he Court in Peretz confined Gomez to cases in which a defendant objects to the magistrate judge’s role in jury selection and held that, absent such an objection, the defendant has no right under the Constitution or the Federal Magistrates Act to have an Article III judge conduct voir dire. A fortiori, there is no error where defense counsel expressly consents to have the magistrate judge preside over voir dire.” There is therefore no serious constitutional question in this case, the United States contends, because Peretz resolves any such question.

The United States emphasizes repeatedly that the decision whether to have an Article III judge or a magistrate judge conduct voir dire is a strategic choice properly entrusted to counsel, rather than a fundamental right that requires personal consent for an effective waiver. Thus, “the normal rule that an attorney speaks for the client” applies, and counsel can effectively waive this right on a defendant’s behalf, as counsel did in this case.

Second, the United States rejects Gonzalez’s alternative argument that the record must at least be clear that the defendant understand his rights and agree with counsel’s decision. Few rights require a defendant’s personal consent for an effective waiver and this case does not implicate such a right; counsel is thus presumed to speak on behalf of his client.

Third, the United States argues that there is no basis for importing the consent requirements of 18 U.S.C. § 3401(b) into the Act. Although the dissent in Peretz contended that § 3401(b)’s consent procedures should apply to felony charges, Congress never acted on that suggestion; in enacting § 3401(b), “Congress ‘did not focus on jury selection as a possible additional duty for magistrates’” (quoting Peretz). The natural conclusion is that Congress intended to adhere to the general rule that a defendant speaks through his counsel.

With respect to the second question presented, the United States advances two principal arguments. First, it argues that Rule 52(b) applies to Gonzalez’s improper delegation claim and rebuts each of Gonzalez’s four arguments to the contrary. The United States first emphasizes that Gonzalez was represented at trial by counsel, who spoke for him. Therefore, the defense had an opportunity to object at trial, which is all that is required. The United States next emphasizes that “Rule 52(b) applies to all claims of error, including a claim of error based on an invalid waiver of a constitutional or statutory right.” The United States then emphasizes that the purpose of the contemporaneous objection rule is to require litigants to make the court aware of any errors so that the court can cure them and remove them as a basis for appeal. Fourth and finally, the United States emphasizes that Rule 52(b) serves the legitimate governmental interest in not upsetting a criminal conviction when an objection could have cured any error.

The United States also argues, with respect to the second question presented, that any error in having the magistrate judge preside over voir dire was not plain error. First, any error was not “plain.” Defense counsel consented to the delegation of jury selection, Peretz supports the delegation under such circumstances, and most authorities at the time of Gonzalez’s trial supported the delegation. Second, any error in failing to obtain explicit and personal consent from Gonzalez did not affect his substantial rights. Nothing suggests that Gonzalez would have withheld consent to the magistrate’s role in jury selection had he been asked. Third, any error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Jury selection proceeded without incident and defense counsel did not make any objections during jury selection.

[edit] Oral Argument Recap

Arguing on behalf of petitioner Homero Gonzalez, Assistant Federal Public Defender Brent E. Newton began oral argument in No. 06-11612, Gonzalez v. United States, as he began his brief, arguing that the question “[w]hether defense counsel can unilaterally waive a criminal defendant’s right to an Article III judge at jury selection . . . is a serious constitutional question” and encouraging the Court to interpret the Federal Magistrates Act “to require [the] defendant’s explicit personal waiver of that right at felony jury selection.”

The Justices appeared hesitant to adopt that interpretation, and most of the Court’s skepticism centered on whether the right to an Article III judge at felony jury selection was as important as petitioner suggested. The Justices questioned the importance of that right in several ways. First, they questioned the right’s importance at a theoretical level. As Chief Justice John G. Roberts suggested early, the right is “derivative of other rights” – “it helps implement” more fundamental, personal rights. Newton resisted that characterization and tried instead to compare the right to the right to a grand jury or petit jury. Justices were skeptical still. As Justice Ruth Bader Ginsburg put it, “there’s a big difference between having a judge trial and a jury of one’s peers,” and the difference between having a magistrate judge or an Article III judge preside over voir dire “is not a question of the same dimension.”

Second, Justices questioned whether the right is one that most defendants would consider particularly important. Justice Samuel Alito questioned whether most defendants would even care who presides over voir dire. As he put it, “Isn’t the situation going to be in the vast, vast majority of cases that your client will simply turn to you and say, which do you think is better, and whatever the lawyer recommends, that’s what the client is going to do?”

In response to these doubts, Newton emphasized that the Framers valued Article III independence. This argument gained little traction. Justice Ginsburg intimated that the independence concern is not particularly strong at felony jury selection: “we’re not talking about a trial. We’re talking about the voir dire.” Justice Antonin Scalia questioned even more fundamentally Newton’s Article III independence argument. He countered that magistrate judges, though not Article III judges, are overseen by Article III judges, and thus “we’re really not talking here about giving away any Article III power.” Because “[m]agistrates are creatures of Article III,” Justice Scalia noted, the independence argument has little force here. In response, Newton reiterated the need for Article III protections and emphasized the greater qualifications of Article III judges.

Third, Justices questioned the importance of the right at a practical level. Justice David H. Souter asked whether there is “anything in practical terms that you think brings this kind of waiver to the point of significance of, say, waiving counsel?” Newton argued that three characteristics make the right to an Article III judge at felony jury selection the sort of right that needs to be personally waived. First, the right must be fundamental. The Court’s decisions, Newton contended, establish that the right to have an Article III judge preside over felony jury selection is fundamental. Second, as with the rights to a jury trial, to a grand jury, and to counsel, “this right concerns the players in the game as opposed to the rules of the game.” And third, in contrast with something waived “during the heat of battle of the adversarial process,” “personal rights are to be waived at a discrete point in time,” which this right is.

In the midst of Newton’s discussion of these characteristics, Justice Anthony M. Kennedy interjected for the first time. Justice Kennedy echoed Justice Souter’s point that, as a practical matter, this right is not as important as other rights. Justice Kennedy then offered a fourth concern – that the right is not sufficiently important to justify the burden that would result from requiring personal waiver. Newton replied that the right at stake is a fundamental one.

Chief Justice Roberts then gave voice to one of the Solicitor General’s main arguments – an argument which seemed to gain traction among the Justices – that the decision whether to have an Article III judge is “a tactical decision” rather than a question of a fundamental constitutional right. Newton countered that “the very same thing could be said of waiving a jury or a grand jury” and asserted that the Court’s decision in Adams v. United States ex rel. McCann stands for the proposition that valid waiver of this right requires “the express intelligent consent of the defendant.” In the view of the Chief Justice, this did not prove Newton’s point, because such consent “can be expressed through counsel.”

Having encountered substantial resistance in his attempt to elevate the right to an Article III judge at felony jury selection, Newton at this point shifted to his alternative argument: citing the Court’s decision in Peretz v. United States, he emphasized that “at the very least, the record needs to reflect that when counsel speaks, counsel is directly speaking with the approval of the client.” Justice Ginsburg then brought up Gomez v. United States – in which the Court held that a magistrate judge cannot preside over voir dire over the defense’s objection – and asked whether anything in that case suggested that the defense attorney had consulted with the defendant. Newton tried to distinguish between “objecting to the violation of a right” and “acquiescing in a knowing and voluntary and intelligent waiver of the right,” but Justice Ginsburg seemed skeptical, and responded by echoing the government’s “tactical decision” argument: “[i]t was the lawyer’s choice [in Gomez], and we have no indication that . . . it was anything other than the strategic choice of the lawyer.”

Newton then shifted gears yet again, arguing that, in discerning Congress’s intent, the Court should interpret the Federal Magistrates Act in pari materia with 18 U.S.C. § 3401(b). Chief Justice Roberts quickly responded: “But, of course, that was for the whole trial [in §3401(b)]. This is for a very discrete aspect prior to trial.” Newton again adverted to Peretz, in which, he stated, “the Court equated an entire delegation of a misdemeanor trial to delegation of felony jury selection.” In response, Justice Souter argued that the decision in Peretz in fact “undercuts” petitioner’s argument, because that decision “equate[s] the waiver with a failure to object.” Newton resisted that characterization, arguing that Peretz needs to be read in context and in light of subsequent decisions, which require more than a failure to object to make an effective waiver. Justice Souter appeared unconvinced, stating that “the implication of Peretz,” given its equation of “waiver” with “failure to object,” “is that it would be . . . a decision of the lawyer that would count for constitutional purposes”: because it is the lawyer who fails to object (since counsel is the one who makes or does not make objections), it is counsel who can “waive” in the meaningful sense here, by not making an objection. The decision in Peretz, in Justice Souter’s view, “seemed to pinpoint the actions of the lawyer alone” – and thus does not implicate a requirement that a defendant personally waive the right. Newton disagreed, emphasizing that in Peretz the defendant himself consented and was present while his lawyer consented.

Before Newton sat down, Justice John Paul Stevens and Justice Kennedy echoed points made earlier. Justice Stevens suggested that “the voir dire is peculiarly . . . an area in which the lawyer knows what he is up to and what’s at stake, and the client does not.” Justice Kennedy again questioned “the practical significance of the client’s participation when it’s really the attorney who is making the decision.”

Lisa S. Blatt, Assistant to the Solicitor General, argued on behalf of the United States and had an easier time of it than Mr. Newton did. Blatt emphasized that the decision whether to have a magistrate judge conduct voir dire is a strategic choice that does not fall within the very few fundamental decisions that a defendant must personally make. Though it is an important choice, “counsel is best equipped to make it.”

The Justices interjected relatively little during Blatt’s presentation, and she took only fifteen minutes. Instead of asking probing questions or expressing skepticism, the Justices mostly asked information-seeking questions that never seriously challenged the heart of the government’s arguments. For example, Justice Stevens asked whether a magistrate judge’s ruling on objections to jurors is reviewable, or if they are final. Blatt noted that any review is de novo. Chief Justice Roberts asked whether any case specifically holds that the right to a jury trial is something that must be explicitly waived. Blatt did not name a case that specifically so holds, but noted that several of the Court’s decisions include the right on a short list with the very few other rights that must be explicitly waived. Justice Ginsburg asked what effect a victory for the United States would have on the Eleventh Circuit’s decision in Maragh, in which the Eleventh Circuit held under its supervisory powers – rather than under the Constitution – that a defendant must explicitly waive. Would a victory for the United States in this case preclude a circuit from so ruling, if the circuit did so under its supervisory powers? Blatt responded, “I don’t think I have a fully developed answer on that, but my guess would be our position is no.” She noted, however, that nothing could stop a particular magistrate from requiring a defendant’s personal waiver in a particular instance.

Blatt closed by presenting the government’s alternative argument: that even if the Court disagrees with the United States on the merits, plain error review applies and there is no plain error in this case. In response to a question from Justice Kennedy, Blatt said that a magistrate judge would not overstep his bounds by asking the client directly whether he waives his right to have a district judge preside over voir dire, even when the attorney has consented.

On rebuttal, Newton returned to § 3401(b), arguing that, given that section’s requirement of a defendant’s personal waiver in the misdemeanor context, it would be anomalous not to require a personal waiver in the felony context. Justice Scalia interjected, noting that at bottom, petitioner’s argument is about the composition of the jury, and asking whether, if the Court requires a special rule of personal waiver in that context, the Court would also have to require personal waiver on other decisions that affect the composition of the jury – such as a court’s failure to permit a strike for cause. Newton stated that such a situation would involve “the heat of the battle of the adversary process” rather than a discrete point in time beforehand, and thus a court would not need the defendant’s personal consent.

Newton closed by noting that this case implicates a critical stage involving a critical right and arguing that there cannot be meaningful de novo review of a magistrate judge’s rulings – thus the defendant’s explicit consent is critical.

[edit] Opinion Analysis

On Monday, May 12, 2008, the Supreme Court affirmed, concluding that counsel alone can waive a defendant’s right to have a district judge preside over felony voir dire and jury selection. Writing for a seven-Justice majority, Justice Anthony Kennedy observed that what suffices for a waiver depends on the right at issue. Some rights – such as the rights to counsel and to plead not guilty – are so fundamental as to require a defendant’s personal waiver. Other rights are less fundamental and implicate tactical choices that an attorney is best equipped to make. Such tactical matters arise frequently, and requiring a defendant’s personal consent on each choice would be impractical.

The Court concluded that the decision to consent to a magistrate judge at jury selection is precisely the kind of “tactical decision that is well suited for the attorney’s own decision.” The question whether to have a particular judge preside over voir dire often turns on considerations of the judge’s approach and how it meshes with the attorney’s approach – considerations that an attorney is best equipped to evaluate. Requiring a defendant’s personal consent could cause needless delay and could detract from the attorney’s preparation for other parts of the defense. Moreover, the right to have a district judge preside over voir dire is not so important to require a defendant’s personal consent, and a district judge can correct a magistrate judge’s errors when a defendant objects. For these reasons, counsel’s express consent is enough to permit a magistrate judge to preside over felony voir dire and jury selection.

Justice Antonin Scalia concurred only in the judgment. He objected to the Court’s “tactical-vs.-fundamental test.” He believed that the Court’s precedents do not establish such an approach, which in his view is both vague and hard to support because it is unclear what makes a right “tactical” or “fundamental.” Justice Scalia would have adopted the rule that “as a constitutional matter, all waivable rights (except, of course, the right to counsel) can be waived by counsel” because the Constitution offers no reason to distinguish “between a criminal defendant and an authorized representative” in this regard. Because no rule or statute requires that the defendant personally waive the right to a district judge at jury selection, counsel may waive the right.

Justice Clarence Thomas dissented. In his view, the Federal Magistrates Act does not authorize district judges to delegate felony jury selection to magistrate judges, regardless of the parties’ consent, and the Court’s contrary decision in Peretz should be overruled. Section 636(b)(3) of the Act says nothing about delegating felony jury selection or consenting to such delegation. When Congress intended to allow delegation of other functions and to mandate a particular type of consent in other parts of the Act, it said so specifically. Moreover, adhering to Peretz requires the difficult determination of whether certain rights are fundamental (a determination that, in Justice Thomas’s view, is far more difficult in this case than the Court believed). Overruling Peretz would eliminate the need for such determinations. Justice Thomas would have remanded for a new trial.

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