United States v. Gonzalez

United States Court of Appeals
Fifth Circuit
F I L E D
March 30, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 05-40723
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HOMERO GONZALEZ,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This case requires us to consider the conditions under which
jury selection may be permissibly delegated to a magistrate judge.
Homero Gonzalez was tried and convicted by jury. On appeal, he
claims that the delegation of voir dire to a magistrate judge
without his express personal assent was erroneous. We disagree and
affirm.
I.
A brief description of the procedural events leading up to
trial provides a background for an understanding of the case.
Gonzalez and his co-defendant were charged in a multi-count
indictment with several drug-related offenses. Gonzalez pled not

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guilty and elected to be tried by a jury. Prior to jury selection,
Gonzalez appeared in court six times, twice before Magistrate Judge
Arce-Flores, who presided over the initial appearance and the
arraignment and bond hearing, and four times before District Judge
Kazen for pretrial conferences. At no time during the conferences
did District Judge Kazen propose delegating jury selection to
Magistrate Judge Arce-Flores.
On January 21, 2005, jury selection was conducted before
Magistrate Judge Arce-Flores. At the outset of the process, Judge
Arce-Flores said: “I need 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.” The
prosecutor responded: “Yes, we are, Your Honor.” Gonzalez’s
attorney, Oscar Pena, also responded: “Yes, your Honor, we are.”
Magistrate Judge Arce-Flores then stated: “The parties have agreed
through consent that this Court will be assisting through the
process of jury selection.”
Judge Arce-Flores then asked whether Gonzalez was present, and
whether he required a translator to which Pena replied
affirmatively. Judge Arce-Flores then said, “We’re going to
proceed this afternoon and I’d like to introduce myself at this
time; I’m the United States Magistrate Judge, Adriana Arce-Flores,
and I’m going to be conducting today’s jury selection process.”
The magistrate judge never asked Gonzalez directly whether he

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consented to having a magistrate judge perform jury selection. The
record does not contain any kind of written consent.
The record shows that voir dire proceeded without incident.
The magistrate provided a thorough explanation of the process to
the parties and the venire members, and permitted both sides to
make statements and ask their own series of questions. Gonzalez
did not make any objections as to how jury selection was conducted.
Gonzalez proceeded to trial before District Judge Duplantier and
was found guilty on all counts. Gonzalez timely appealed from the
judgment of conviction entered by the district court on April 29,
2005.
II.
On appeal, Gonzalez argues that because he did not consent
personally to the district court’s delegation of jury selection to
a magistrate judge, his case should be remanded for a new trial.
Because Gonzalez raised this issue for the first time on appeal, we
review for plain error. This appears to be the practice in the
other circuits that have considered this type of claim. See United
States v. Rivera-Sola, 713 F.2d 866, 874 (1st Cir. 1983); United
States v. Jones, 938 F.2d 737, 744 (7th Cir. 1991); United States
v. Maragh, 174 F.3d 1202, 1204 (11th Cir.), opinion supplemented on
reh’g, 189 F.3d 1315, 1316 (11th Cir. 1999). Under the plain error
standard, Gonzalez must demonstrate clear or obvious error that
affected his substantial rights. United States v. Fernandez-Cusco,
447 F.3d 382, 385 (5th Cir. 2006).

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A.
Under the Federal Magistrates Act, 28 U.S.C. § 636(b)(3), a
federal district court may delegate certain pretrial Article III
duties to a magistrate judge. The Supreme Court has twice
considered the conditions under which voir dire permissibly may be
delegated. In Gomez v. United States, 490 U.S. 858 (1989), the
Supreme Court determined that permitting a magistrate to conduct
voir dire over the express objection of the defendant was not a
permissible delegation. Id. at 872. Subsequently, however, in
Peretz v. United States, 501 U.S. 923 (1991), the Court held that
under some circumstances, when the defendant does not object, voir
dire is one of the Article III duties that may be delegated. Id.
at 940.
Peretz was charged with importing heroin and elected to be
tried by jury. Id. at 925. At a pretrial conference at which both
he and his counsel were present, the district court asked if there
was any objection to having a magistrate conduct jury selection.
Id. Peretz’s counsel said: “I would love the opportunity.”
Immediately before jury selection, “the Magistrate asked for, and
received, assurances from counsel for [Peretz] ... that she had
[his client’s] consent to proceed with jury selection.” Id.
Peretz was tried and convicted. On appeal, he “contended that it
was error to assign the jury selection to the Magistrate.” Id. at
925. The Court granted certiorari to consider whether the
delegation of voir dire with the defendant’s consent exceeds the

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1 The Court also granted certiorari to consider whether “the
conduct of petitioner and his attorney constitute[d] a waiver of
the right to raise [the erroneous delegation] on appeal,” id.
(internal quotation marks and citation omitted), but ultimately did
not reach this issue. Id. at 940.
2 The Court cites, inter alia, United States v. Gagnon, 470
U.S. 522, 528 (1985) (absence of objection constitutes waiver of
right to be present at all stages of criminal trial); Levine v.
United States, 362 U.S. 610, 619 (1960) (failure to object to
closing of courtroom waives right to public trial); Segurola v.
United States, 275 U.S. 106, 111 (1927) (failure to object
constitutes waiver of Fourth Amendment right against unlawful
search and seizure); United States v. Bascaro, 742 F.2d 1335, 1365
(11th Cir. 1984) (absence of objection is waiver of double jeopardy
defense), cert. denied sub nom. Hobson v. United States, 472 U.S.
1017 (1985).
5
scope of 28 U.S.C. § 636 or is inconsistent with Article III. Id.
at 927.1
The Court first considered whether permitting delegation of
voir dire was consistent with the purposes of the Federal
Magistrate Act. Noting that “with the parties’ consent, a district
judge may delegate to a magistrate supervision of entire civil and
misdemeanor trials,” and that “these duties are comparable in
responsibility and importance to presiding over voir dire at a
felony trial,” the Court determined that the Federal Magistrate
Act’s “additional duties” clause “permits a magistrate to supervise
jury selection in a felony trial provided the parties consent.”
Id. at 933. The Court then considered whether such a delegation is
constitutional if done with the parties’ consent and held that it
is, relying on its earlier precedent holding that “[t]he most basic
rights of criminal defendants are subject to waiver.” Id. at 936.2

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3 The dissenting judge would not have remanded for an
evidentiary hearing, but instead would have held that the
defendant’s consent must be obtained on the record before the
magistrate may conduct voir dire. Id. at 1207.
6
The Court concluded by noting that “[e]ven assuming that a litigant
may not waive structural protections provided by Article III ... no
such structural protections are implicated by the procedure
followed in this case.” Id. at 937 (internal citation omitted).
Peretz did not clearly address whether the magistrate judge
must obtain the defendant’s affirmative consent before conducting
voir dire and, if so, whether the defendant must consent personally
or whether counsel’s consent is binding. The ambiguity in Peretz
has led to a circuit split on what demonstration of consent is
required to delegate jury selection. This appears to be a question
of first impression for our court.
B.
Gonzalez relies heavily on the Eleventh Circuit decision in
United States v. Maragh, 174 F.3d 1202 (11th Cir. 1999), which
presented a factual scenario similar to this case. Prior to
conducting jury selection, the magistrate judge said, “I am here to
select a jury and everybody has agreed to me selecting the jury for
Judge Graham. Is that correct?” Both the defense attorney and the
Government attorney agreed. Id. at 1204. A divided panel found
that it was “unclear whether counsel’s response to the magistrate
judge’s question represented the defendant’s consent” and remanded
to the district court for a factual finding on this question.3 Id.

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4 Neither Harris nor Gomez-Lepe discuss whether the required
consent must be given by the defendant personally or whether
consent given through counsel would be sufficient.
7
at 1205. The court then held “prospectively, under [its]
supervisory powers ..., that henceforth it will be error for a
magistrate to conduct voir dire in a felony case unless the record
clearly shows that the defendant has knowingly consented to such
procedure.” Id. at 1207.
The Eleventh Circuit appears to be alone in having reached the
conclusion that the defendant’s personal consent is required for
the delegation of jury selection to be constitutionally valid. The
First Circuit, in contrast, has held that the delegation of voir
dire is permissible unless the defendant objects. Failure to
object constitutes a waiver. United States v. Desir, 273 F.3d 39,
44 (1st Cir. 2001). The Seventh Circuit has held that absent an
objection, it is not plain error for a magistrate to conduct jury
selection in a felony trial. United States v. Jones, 938 F.2d 737,
744 (7th Cir. 1991). The Ninth Circuit has not directly addressed
jury selection but, relying on Peretz, has held that some form of
affirmative consent is required before a magistrate judge may poll
the jury. United States v. Gomez-Lepe, 207 F.3d 623, 631 (9th Cir.
2000). Similarly, the Eighth Circuit has found that some form of
consent is required before a magistrate judge may supervise jury
deliberations. Harris v. Folk Construction Co., 138 F.3d 365, 369-
70 (8th Cir. 1998).4

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C.
Given the unsettled state of the law interpreting Peretz, and
given that this court has never decided what level of consent is
required (if any), it is difficult to see how Gonzalez could
demonstrate that the delegation of jury selection constituted a
plain error. Even if, however, we were to review under a less
stringent standard, Peretz still provides little support for the
position Gonzalez adopts. The fact pattern in Peretz, in which the
delegation was found to be permissible, is almost identical to that
in the instant case. Furthermore, there is no indication that the
Court found the absence of specific consent by the defendant to be
a dispositive, or even relevant consideration. No court other
than the Maragh panel of the Eleventh Circuit has reached the
outcome Gonzalez proposes, and the debate among the other circuits
appears to turn on whether affirmative consent is required at all,
not on what form this consent must take.
Although certain rights are so fundamental that they must be
waived personally by the defendant, Gonzalez provides no support
for his contention that the right to have an Article III judge
conduct voir dire is among them. “What suffices for waiver depends
on the nature of the right at issue. ‘[W]hether the defendant must
participate personally in the waiver; whether certain procedures
are required for waiver; and whether the defendant’s choice must be
particularly informed or voluntary, all depend on the right at
stake.’” New York v. Hill, 528 U.S. 110, 114 (2000) (quoting

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United States v. Olano, 507 U.S. 725, 733 (1993)). As the
Government points out, the defendant does not, by waiving his right
to have an Article III judge conduct voir dire, waive his right to
judicial review of those proceedings. The nature of the right
given up is therefore limited, particularly as compared to the
other rights that we have held may be waived via counsel. See,
e.g., United States v. Spiegel, 604 F.2d 961, 964-66 (5th Cir.
1979) (counsel’s waiver of a defendant’s right to 12-person jury
was binding on defendant); United States v. Muhammed, 165 F.3d 327,
332-33 (5th Cir. 1999) (counsel’s waiver of defendant’s right to
have an Article III judge preside over a civil commitment hearing
was binding on defendant); Winters v. Cook, 489 F.2d 174, 179 (5th
Cir. 1973) (en banc) (defendant bound by attorney’s decision to
waive right to “constitutionally composed” grand jury in murder
indictment). In sum, there is no error here; the right to have an
Article III judge conduct voir dire is one that may be waived
through the consent of counsel.
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.

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