GONZALEZ v. UNITED STATES

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242 OCTOBER TERM, 2007
Syllabus
GONZALEZ v. UNITED STATES
certiorari to the united states court of appeals for
the fifth circuit
No. 06–11612. Argued January 8, 2008—Decided May 12, 2008
If the parties consent, a federal magistrate judge may preside over the
voir dire and jury selection in a felony criminal trial. Peretz v. United
States, 501 U. S. 923, 933. Before petitioner’s federal trial on felony
drug charges, his counsel consented to the Magistrate Judge’s presiding
over jury selection. Petitioner was not asked for his own consent.
After the Magistrate Judge supervised voir dire without objection, a
District Judge presided at trial, and the jury returned a guilty verdict
on all counts. Petitioner contended for the first time on appeal that it
was error not to obtain his own consent to the Magistrate Judge’s voir
dire role. The Fifth Circuit affirmed the convictions, concluding, inter
alia, that the right to have a district judge preside over voir dire could
be waived by counsel.
Held: Express consent by counsel suffices to permit a magistrate judge to
preside over jury selection in a felony trial, pursuant to the Federal
Magistrates Act, 28 U. S. C. § 636(b)(3), which states: “A magistrate
judge may be assigned such additional duties as are not inconsistent
with the Constitution and laws of the United States.” Under Gomez v.
United States, 490 U. S. 858, 870, 875–876, and Peretz, supra, at 933,
935–936, such “additional duties” include presiding at voir dire if the
parties consent, but not if there is an objection. Generally, where there
is a full trial, there are various points at which rights either can be
asserted or waived. This Court has indicated that some of these rights
require the defendant’s own consent to waive. See, e. g., New York v.
Hill, 528 U. S. 110, 114–115. The Court held in Hill, however, that an
attorney, acting without indication of particular consent from his client,
could waive his client’s statutory right to a speedy trial because
“[s]cheduling matters are plainly among those for which agreement by
counsel generally controls.” Ibid. Similar to the scheduling matter in
Hill, acceptance of a magistrate judge at the jury selection phase is a
tactical decision well suited for the attorney’s own decision. The pre
siding judge has significant discretion over jury selection both as to
substance—the questions asked—and tone—formal or informal—and
the judge’s approach may be relevant in light of the approach of the
attorney, who may decide whether to accept a magistrate judge based
in part on these factors. As with other tactical decisions, requiring

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Opinion of the Court
personal, on-the-record approval from the client could necessitate a
lengthy explanation that the client might not understand and that might
distract from more pressing matters as the attorney seeks to prepare
the best defense. Petitioner argues unconvincingly that the decision to
have a magistrate judge for voir dire is a fundamental choice, cf. id., at
114, or, at least, raises a question of constitutional significance so that
the Act should be interpreted to require explicit consent. Serious con
cerns about the Act’s constitutionality are not present here, and peti
tioner concedes that magistrate judges are capable of competent and
impartial performance when presiding over jury selection. Gomez,
supra, at 876, distinguished. Pp. 245–253.
483 F. 3d 390, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Roberts,
C. J., and Stevens, Souter, Ginsburg, Breyer, and Alito, JJ., joined.
Scalia, J., filed an opinion concurring in the judgment, post, p. 254.
Thomas, J., filed a dissenting opinion, post, p. 258.
Brent E. Newton argued the cause for petitioner. With
him on the briefs were Marjorie A. Meyers, H. Michael So
kolow, and Timothy Crooks.
Lisa S. Blatt argued the cause for the United States.
With her on the brief were Solicitor General Clement, As
sistant Attorney General Fisher, Deputy Solicitor General
Dreeben, and Deborah Watson.*
Justice Kennedy delivered the opinion of the Court.
If the parties consent, federal magistrate judges may pre
side over the voir dire and selection of prospective jurors in
a felony criminal trial. Peretz v. United States, 501 U. S.
923, 933 (1991). This case presents the question whether it
suffices for counsel alone to consent to the magistrate judge’s
role in presiding over voir dire and jury selection or whether
the defendant must give his or her own consent.
*Briefs of amici curiae urging reversal were filed for the Charles Ham
ilton Houston Institute for Race and Justice by Charles J. Ogletree, Jr., and
Rachel E. Barkow; and for the National Association of Criminal Defense
Lawyers et al. by Joel B. Rudin, Joshua L. Dratel, and Henry J.
Bemporad.

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244 GONZALEZ v. UNITED STATES
Opinion of the Court
Homero Gonzalez was charged in the United States Dis
trict Court for the Southern District of Texas on five felony
drug offense counts. He is the petitioner here. At the out
set of jury selection, the parties appeared before a Magis
trate Judge. The Magistrate Judge asked the attorneys to
approach the bench. After they complied, the Magistrate
Judge 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.”
App. 16. Petitioner’s counsel responded: “Yes, your Honor,
we are.” Ibid. The Magistrate Judge asked if petitioner
was present and if he needed an interpreter. Petitioner’s
counsel answered yes to both questions. Petitioner was not
asked if he consented to the Magistrate Judge’s presiding.
The record does not permit us to infer this or even to infer
that petitioner knew there was a right to be waived. The
Magistrate Judge then supervised voir dire and jury se
lection. Petitioner made no objections to the Magistrate
Judge’s rulings or her conduct of the proceedings. A Dis
trict Judge presided at the ensuing jury trial, and the jury
returned a verdict of guilty on all counts.
Petitioner appealed, contending, for the first time, that it
was error not to obtain his own consent to the Magistrate
Judge’s presiding at voir dire. The United States Court of
Appeals for the Fifth Circuit affirmed the convictions. The
court concluded petitioner could not show the error was plain
and, furthermore, there was no error at all. It held the
right to have an Article III judge preside over voir dire
could be waived by petitioner’s counsel. 483 F. 3d 390, 394
(2007). The Courts of Appeals differ on this issue. Com
pare ibid. with United States v. Maragh, 174 F. 3d 1202, 1206
(CA11 1999) (requiring personal and explicit consent from
the defendant); see also United States v. Desir, 273 F. 3d 39,
44 (CA1 2001) (magistrate judge may conduct jury selection
unless the defendant or his attorney registers an objection).

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Opinion of the Court
We granted certiorari. 551 U. S. 1192 (2007). We agree
that there was no error and hold that petitioner’s counsel
had full authority to consent to the Magistrate Judge’s role.
The Federal Magistrates Act, 28 U. S. C. § 631 et seq. (2000
ed. and Supp. V), permits district courts to assign designated
functions to magistrate judges. For example, magistrate
judges are authorized to: issue orders concerning release or
detention of persons pending trial; take acknowledgments,
affidavits, and depositions; and enter sentences for petty of
fenses. § 636(a) (2000 ed. and Supp. V). They also may
hear and determine, when designated to do so, any pretrial
matter pending before the district court, with the exception
of certain specified motions. Magistrate judges may also
conduct hearings and propose recommendations for those
motions, applications for post-trial criminal relief, and condi
tions of confinement petitions. § 636(b)(1) (2000 ed.). If the
parties consent, they may conduct misdemeanor criminal
trials and civil trials. §§ 636(a)(3) and (c)(1).
The statutory provision of direct applicability in the pres
ent case is § 636(b)(3). It states: “A magistrate judge may
be assigned such additional duties as are not inconsistent
with the Constitution and laws of the United States.” The
general, nonspecific terms of this paragraph, preceded by
text that sets out permissible duties in more precise terms,
constitute a residual or general category that must not be
interpreted in terms so expansive that the paragraph over
shadows all that goes before.
In two earlier cases the Court considered the question of
magistrate judges presiding over the jury selection process
in felony trials. In Gomez v. United States, 490 U. S. 858
(1989), the District Judge delegated the task of selecting a
jury to a Federal Magistrate Judge. Defense counsel ob
jected, but the objection was overruled. The Court noted
that “[a] critical limitation on [the magistrate judge’s] ex
panded jurisdiction is consent,” id., at 870, and held that pre
siding, over an objection, at the preliminary selection phase

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of a jury trial in felony cases is not among the additional
duties that a magistrate judge may assume, id., at 875–876.
In Peretz v. United States, 501 U. S. 923, the Court again
considered whether a magistrate judge could preside over
voir dire in a felony case. In that instance, however, defend
ant’s counsel, upon being asked by the District Court at a
pretrial conference (with the defendant present) if there was
any objection to having jury selection before a magistrate
judge, responded, “ ‘I would love the opportunity.’ ” Id., at
925. Defense counsel later advised the Magistrate Judge
that the defendant consented to the process. The Court
clarified that in a felony trial neither the Act nor Article III
forbids supervision of voir dire by a magistrate judge if both
parties consent. Id., at 935–936.
Taken together, Gomez and Peretz mean that “the addi
tional duties” the statute permits the magistrate judge to
undertake include presiding at voir dire and jury selection
provided there is consent but not if there is an objection.
We now consider whether the consent can be given by coun
sel acting on behalf of the client but without the client’s own
express consent.
At first reading it might seem that our holding here is
dictated by the holding in Peretz. In Peretz, it would appear
the accused was aware of the colloquy between the District
Judge and defense counsel and the formal waiver before the
Magistrate Judge. On this premise Peretz might be read
narrowly to hold that a defendant may signal consent by fail
ing to object; and indeed, petitioner here seeks to distinguish
Peretz on this ground. Brief for Petitioner 41–42. We de
cide this case, however, on the assumption that the defendant
did not hear, or did not understand, the waiver discussions.
This addresses what, at least in petitioner’s view, Peretz did
not. It should be noted that we do not have before us an
instance where a defendant instructs the lawyer or advises
the court in an explicit, timely way that he or she demands
that a district judge preside in this preliminary phase.

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Opinion of the Court
There are instances in federal criminal proceedings where
the procedural requisites for consent are specified and a right
cannot be waived except with a defendant’s own informed
consent. Under Federal Rule of Criminal Procedure 11(b),
for example, the district court is required, as a precondition
to acceptance of a guilty plea, to inform the defendant in
person of the specified rights he or she may claim in a full
criminal trial and then verify that the plea is voluntary by
addressing the defendant. The requirement is satisfied by
a colloquy between judge and defendant, reviewing all of the
rights listed in Rule 11.
Statutes may also address this subject. Under 18 U. S. C.
§ 3401(b), for example, a magistrate judge may preside over
the whole trial and sentencing in a misdemeanor case but
only with the express, personal consent of the defendant.
The provision requires that the magistrate judge
“carefully explain to the defendant that he has a right
to trial, judgment, and sentencing by a district judge
and that he may have a right to trial by jury before a
district judge or magistrate judge. The magistrate
judge may not proceed to try the case unless the defend
ant, after such explanation, expressly consents to be
tried before the magistrate judge and expressly and spe
cifically waives trial, judgment, and sentencing by a dis
trict judge. Any such consent and waiver shall be made
in writing or orally on the record.”
The controlling statute in this case has a different design,
however. Title 28 U. S. C. § 636(b)(3) does not state that
consent to preside over felony voir dire must be granted by
following a procedure of similar clarity. As a general mat
ter, where there is a full trial there are various points in the
pretrial and trial process when rights either can be asserted
or waived; and there is support in our cases for concluding
that some of these rights cannot be waived absent the de
fendant’s own consent. Whether the personal consent must

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be explicit and on the record or can be determined from a
course of conduct may be another matter, but for now it suf
fices to note that we have acknowledged that some rights
cannot be waived by the attorney alone. See New York v.
Hill, 528 U. S. 110, 114–115 (2000).
Citing some of our precedents on point, the Court in Hill
gave this capsule discussion:
“What suffices for waiver depends on the nature of
the right at issue. ‘[W]hether the defendant must par
ticipate personally in the waiver; whether certain proce
dures are required for waiver; and whether the defend
ant’s choice must be particularly informed or voluntary,
all depend on the right at stake.’ United States v.
Olano, 507 U. S. 725, 733 (1993). For certain fundamen
tal rights, the defendant must personally make an in
formed waiver. See, e. g., Johnson v. Zerbst, 304 U. S.
458, 464–465 (1938) (right to counsel); Brookhart v.
Janis, 384 U. S. 1, 7–8 (1966) (right to plead not guilty).
For other rights, however, waiver may be effected by
action of counsel. ‘Although there are basic rights that
the attorney cannot waive without the fully informed
and publicly acknowledged consent of the client, the law
yer has—and must have—full authority to manage the
conduct of the trial.’ Taylor v. Illinois, 484 U. S. 400,
417–418 (1988). As to many decisions pertaining to the
conduct of the trial, the defendant is ‘deemed bound by
the acts of his lawyer-agent and is considered to have
“notice of all facts, notice of which can be charged upon
the attorney.” ’ Link v. Wabash R. Co., 370 U. S. 626,
634 (1962) (quoting Smith v. Ayer, 101 U. S. 320, 326
(1880)). Thus, decisions by counsel are generally given
effect as to what arguments to pursue, see Jones v.
Barnes, 463 U. S. 745, 751 (1983), what evidentiary ob
jections to raise, see Henry v. Mississippi, 379 U. S. 443,
451 (1965), and what agreements to conclude regarding
the admission of evidence, see United States v. McGill,

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11 F. 3d 223, 226–227 (CA1 1993). Absent a demonstra
tion of ineffectiveness, counsel’s word on such matters is
the last.” Ibid.
The issue in Hill was whether the attorney, acting without
indication of particular consent from his client, could waive
his client’s statutory right to a speedy trial pursuant to the
Interstate Agreement on Detainers. The Court held that
the attorney’s statement, without any showing of the client’s
explicit consent, could waive the speedy trial right: “Schedul
ing matters are plainly among those for which agreement by
counsel generally controls.” Id., at 115.
Giving the attorney control of trial management matters
is a practical necessity. “The adversary process could not
function effectively if every tactical decision required client
approval.” Taylor v. Illinois, 484 U. S. 400, 418 (1988).
The presentation of a criminal defense can be a mystifying
process even for well-informed laypersons. This is one of
the reasons for the right to counsel. See Powell v. Ala
bama, 287 U. S. 45, 68–69 (1932); ABA Standards for Crimi
nal Justice, Defense Function 4–5.2, Commentary, p. 202 (3d
ed. 1993) (“Many of the rights of an accused, including consti
tutional rights, are such that only trained experts can com
prehend their full significance, and an explanation to any but
the most sophisticated client would be futile”). Numerous
choices affecting conduct of the trial, including the objections
to make, the witnesses to call, and the arguments to advance,
depend not only upon what is permissible under the rules of
evidence and procedure but also upon tactical considerations
of the moment and the larger strategic plan for the trial.
These matters can be difficult to explain to a layperson; and
to require in all instances that they be approved by the client
could risk compromising the efficiencies and fairness that the
trial process is designed to promote. In exercising profes
sional judgment, moreover, the attorney draws upon the ex
pertise and experience that members of the bar should bring
to the trial process. In most instances the attorney will

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have a better understanding of the procedural choices than
the client; or at least the law should so assume. See Jones
v. Barnes, 463 U. S. 745, 751 (1983); see also Tollett v. Hen
derson, 411 U. S. 258, 267–268 (1973); cf. ABA Standards,
supra, at 202 (“Every experienced advocate can recall the
disconcerting experience of trying to conduct the examina
tion of a witness or follow opposing arguments or the judge’s
charge while the client ‘plucks at the attorney’s sleeve’ offer
ing gratuitous suggestions”). To hold that every instance of
waiver requires the personal consent of the client himself or
herself would be impractical.
Similar to the scheduling matter in Hill, acceptance of a
magistrate judge at the jury selection phase is a tactical deci
sion that is well suited for the attorney’s own decision.
Under Rule 24 of the Federal Rules of Criminal Procedure,
the presiding judge has significant discretion over the struc
ture of voir dire. The judge may ask questions of the jury
pool or, as in this case, allow the attorneys for the parties to
do so. Fed. Rule Crim. Proc. 24(a); App. 20. A magistrate
judge’s or a district judge’s particular approach to voir dire
both in substance—the questions asked—and in tone—for
mal or informal—may be relevant in light of the attorney’s
own approach. The attorney may decide whether to accept
the magistrate judge based in part on these factors. As
with other tactical decisions, requiring personal, on-the
record approval from the client could necessitate a lengthy
explanation the client might not understand at the moment
and that might distract from more pressing matters as the
attorney seeks to prepare the best defense. For these rea
sons we conclude that express consent by counsel suffices to
permit a magistrate judge to preside over jury selection in
a felony trial, pursuant to the authorization in § 636(b)(3).
Our holding is not inconsistent with reading other prece
dents to hold that some basic trial choices are so important
that an attorney must seek the client’s consent in order to
waive the right. See, e. g., Florida v. Nixon, 543 U. S. 175,

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187 (2004) (identifying the choices “ ‘to plead guilty, waive a
jury, testify in his or her own behalf, or take an appeal’ ” as
examples (quoting Jones, supra, at 751)). Petitioner argues
that the decision to have a magistrate judge rather than an
Article III judge preside at jury selection is a fundamental
choice, cf. Hill, 528 U. S., at 114, or, at least, raises a question
of constitutional significance so that we should interpret the
Act to require an explicit personal statement of consent be
fore the magistrate judge can proceed with jury selection.
We conclude otherwise. Under the avoidance canon,
“when ‘a statute is susceptible of two constructions, by one
of which grave and doubtful constitutional questions arise
and by the other of which such questions are avoided, our
duty is to adopt the latter.’ ” Harris v. United States, 536
U. S. 545, 555 (2002) (quoting United States ex rel. Attorney
General v. Delaware & Hudson Co., 213 U. S. 366, 408
(1909)). The canon, however, does not apply unless there
are “serious concerns about the statute’s constitutionality.”
Harris, supra, at 555; see also Reno v. Flores, 507 U. S. 292,
314, n. 9 (1993).
Those concerns are not present here. Petitioner concedes
that a magistrate judge is capable of competent and impar
tial performance of the judicial tasks involved in jury exami
nation and selection. Reply Brief for Petitioner 12–13; see
also Peretz, 501 U. S., at 935 (“The Act evinces a congres
sional belief that magistrates are well qualified to handle
matters of similar importance to jury selection”). The Act
contains some features to ensure impartiality. See, e. g., 28
U. S. C. §§ 631(i) (establishing requirements for removal), 632
(limiting concurrent employment), 634(b) (providing salary
protection during the term). And “ ‘the district judge—in
sulated by life tenure and irreducible salary—is waiting in
the wings, fully able to correct errors.’ ” Peretz, supra, at
938 (quoting United States v. Raddatz, 447 U. S. 667, 686
(1980) (Blackmun, J., concurring)). Here petitioner made no
objections to the rulings by the Magistrate Judge. Had ob

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jections been made, nothing in the record or the rules indi
cates that the District Judge could not have ruled on the
issues, all with no delay or prejudice to any trial that had
commenced. See Peretz, supra, at 935, n. 12, 939. These
factors support our determination that consent of counsel
suffices to allow a magistrate judge to supervise voir dire.
This is not a case where the magistrate judge is asked to
preside or make determinations after the trial has com
menced and it is arguably difficult or disruptive for a district
judge to review any objections that might have been made
to the magistrate judge’s rulings.
Petitioner notes that Peretz considered supervision over
entire civil and misdemeanor trials comparable to presiding
over voir dire at a felony trial. 501 U. S., at 933. It follows,
he argues, that § 636(b)(3) must require, as does 18 U. S. C.
§ 3401(b), express personal consent by the defendant before
a magistrate judge may preside over voir dire. But it is
not obvious that Congress would have thought these matters
required the same form of consent. Aside from the fact that
the statutory text is different, there are relevant differences
between presiding over a full trial and presiding over voir
dire. Were petitioner correct, one would think the Act
would require at least the same form of consent to authorize
a magistrate judge to preside over either a civil or a misde
meanor trial (which Peretz also deemed to be of comparable
importance). Our interpretation of the Act indicates other
wise. Compare § 3401(b) with Roell v. Withrow, 538 U. S.
580, 590 (2003) (concluding that parties may authorize a full
time magistrate judge to preside over a civil trial via im
plied consent).
Petitioner argues that our view of the issue should be
informed by Gomez’s conclusion that having a magistrate
judge during jury selection without consent is structural
error, not subject to harmless-error review. See 490 U. S.,
at 876. The exemption of certain errors from harmless

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error review “recognizes that some errors necessarily render
a trial fundamentally unfair.” Rose v. Clark, 478 U. S. 570,
577 (1986); see also id., at 577–578. In petitioner’s view,
Gomez establishes that the issue in this case is of sufficient
gravity or concern that personal consent must be required.
The Court held in Gomez that imposition of a magistrate
judge over objection was structural error, violating the basic
right to a trial conducted at all critical stages by a judicial
officer with appropriate jurisdiction. 490 U. S., at 876. It
does not follow, however, that this structural aspect requires
an insistence on personal consent. Here, jurisdiction turns
on consent; and for the reasons discussed above an attorney,
acting on the client’s behalf, can make an informed decision
to allow the magistrate judge to exercise the jurisdiction
Congress permits.
Although a criminal defendant may demand that an Article
III judge preside over the selection of a jury, the choice to
do so reflects considerations more significant to the realm of
the attorney than to the accused. Requiring the defendant
to consent to a magistrate judge only by way of an on-the
record personal statement is not dictated by precedent and
would burden the trial process, with little added protection
for the defendant.
Pursuant to 28 U. S. C. § 636(b)(3) a magistrate judge may
preside over jury examination and jury selection only if the
parties, or the attorneys for the parties, consent. Consent
from an attorney will suffice. We do not have before us, and
we do not address, an instance where the attorney states
consent but the party by express and timely objection seeks
to override his or her counsel. We need not decide, more
over, if consent may be inferred from a failure by a party
and his or her attorney to object to the presiding by a magis
trate judge. These issues are not presented here.
The judgment of the Court of Appeals is affirmed.
It is so ordered.

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Scalia, J., concurring in judgment
Justice Scalia, concurring in the judgment.
I agree with the Court that no statute or rule requires that
petitioner personally participate in the waiver of his right to
have an Article III judge oversee voir dire. As to whether
the Constitution requires that, the Court holds that it does
not because it is a decision more tactical than fundamental—
“more significant to the realm of the attorney than to the
accused.” Ante, at 253. I agree with the Court’s conclu
sion, but not with the tactical-vs.-fundamental test on which
it is based.
Petitioner and the Government do not dispute that peti
tioner’s counsel consented to have a magistrate judge over
see voir dire. The issue is whether that consent—consent
of counsel alone—effected a valid waiver of petitioner’s right
to an Article III judge. It is important to bear in mind that
we are not speaking here of action taken by counsel over his
client’s objection—which would have the effect of revoking
the agency with respect to the action in question. See
Brookhart v. Janis, 384 U. S. 1, 7–8 (1966). There is no sug
gestion of that. The issue is whether consent expressed by
counsel alone is ineffective simply because the defendant
himself did not express to the court his consent.
I think not. Our opinions have sometimes said in pass
ing that, under the Constitution, certain “fundamental” or
“basic” rights cannot be waived unless a defendant person
ally participates in the waiver. See, e. g., Taylor v. Illinois,
484 U. S. 400, 417–418 (1988); United States v. Olano, 507
U. S. 725, 733 (1993). We have even repeated the suggestion
in cases that actually involved the question whether a crimi
nal defendant’s attorney could waive a certain right—but
never in a case where the suggestion governed the disposi
tion. In New York v. Hill, 528 U. S. 110 (2000), although we
noted that “[f]or certain fundamental rights, the defendant
must personally make an informed waiver,” id., at 114, we
in fact found such a requirement inapplicable; and even that
determination can be viewed as resting upon an interpre

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tation of the statute creating the right that counsel had
waived, see id., at 115. And in Florida v. Nixon, 543 U. S.
175 (2004), although we said that “counsel lacks authority to
consent to a guilty plea on [his] client’s behalf,” id., at 187,
our holding was simply that counsel’s concession of guilt to
the jury did not amount to a guilty plea, id., at 188, and did
not constitute ineffective assistance of counsel, id., at 192.
As detailed in the margin, the decisions often cited for the
principle of attorney incapacity are inapposite; 1 except for
one line of precedent, no decision of this Court holds that, as
a constitutional matter, a defendant must personally waive
certain of his “fundamental” rights—which typically are
identified as the rights to trial, jury, and counsel. The ex
ceptional line of precedent involves the right to counsel.
See Johnson v. Zerbst, 304 U. S. 458, 464–465 (1938). But
that right is essentially sui generis, since an unrepresented
1 On the right to jury, Thompson v. Utah, 170 U. S. 343 (1898), held, at
most, that the right was not waivable. Id., at 353–354. The Court later
questioned whether Thompson even held that, and went on to hold that
the right is waivable. See Patton v. United States, 281 U. S. 276, 293
(1930). The observation at the end of Patton that “before any waiver can
become effective, the consent of government counsel and the sanction of
the court must be had, in addition to the express and intelligent consent
of the defendant,” id., at 312, was dictum; the Patton defendants had all
agreed to the waiver, id., at 286–287. Even less germane is Adams v.
United States ex rel. McCann, 317 U. S. 269 (1942), which held only that
an unrepresented defendant can waive his right to jury without the advice
of counsel. Id., at 278–279.
On the right to trial, Brookhart v. Janis, 384 U. S. 1 (1966), held only
that a defendant’s expressed wish to proceed to trial must prevail over his
attorney’s contrary opinion. See id., at 7–8. Other decisions have said
that waiver of the right to trial must be knowing and voluntary, see, e. g.,
Brady v. United States, 397 U. S. 742, 748 (1970), but waiver by counsel
was not at issue in those cases. Even if, in the case of waiver by counsel,
the knowing and voluntary requirement applies to the defendant himself,
that still permits counsel to waive on behalf of an informed and agreeing
client. Equally inapposite is Boykin v. Alabama, 395 U. S. 238 (1969),
which held that a knowing and voluntary waiver of the right to trial cannot
be inferred from a silent record. Id., at 244.

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defendant cannot possibly waive his right to counsel except
in person. Cases involving that right therefore provide no
support for the principle that the Constitution sometimes
forbids attorney waiver.
Since a formula repeated in dictum but never the basis
for judgment is not owed stare decisis weight, see Lingle
v. Chevron U. S. A. Inc., 544 U. S. 528, 545–546 (2005), our
precedents have not established the rule of decision appli
cable in this case. I would not adopt the tactical-vs.
fundamental approach, which is vague and derives from
nothing more substantial than this Court’s say-so. One re
spected authority has noted that the approach has a “poten
tial for uncertainty,” and that our precedents purporting to
apply it “have been brief and conclusionary.” 3 W. LaFave,
J. Israel, N. King, & O. Kerr, Criminal Procedure §§ 11.6(a),
(c), pp. 784, 796 (3d ed. 2007). That is surely an understate
ment. What makes a right tactical? Depending on the cir
cumstances, waiving any right can be a tactical decision.
Even pleading guilty, which waives the right to trial, is
highly tactical, since it usually requires balancing the prose
cutor’s plea bargain against the prospect of better and worse
outcomes at trial.
Whether a right is “fundamental” is equally mysterious.
One would think that any right guaranteed by the Constitu
tion would be fundamental. But I doubt many think that
the Sixth Amendment right to confront witnesses cannot
be waived by counsel. See Diaz v. United States, 223 U. S.
442, 444, 452–453 (1912). Perhaps, then, specification in the
Constitution is a necessary, but not sufficient, condition for
“fundamental” status. But if something more is necessary,
I cannot imagine what it might be. Apart from constitu
tional guarantee, I know of no objective criterion for ranking
rights. The Court concludes that the right to have an Arti
cle III judge oversee voir dire is not a fundamental right,
ante, at 250–252, without answering whether it is even a con

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stitutional right,2 and without explaining what makes a right
fundamental in the first place. The essence of “fundamen
tal” rights continues to elude.
I would therefore adopt the rule that, as a constitutional
matter, all waivable rights (except, of course, the right to
counsel) can be waived by counsel. There is no basis in the
Constitution, or as far as I am aware in common-law practice,
for distinguishing in this regard between a criminal defend
ant and his authorized representative. In fact, the very no
tion of representative litigation suggests that the Constitu
tion draws no distinction between them. “A prisoner . . .
who defends by counsel, and silently acquiesces in what they
agree to, is bound as any other principal by the act of his
agent.” People v. Rathbun, 21 Wend. 509, 543 (N. Y. Sup.
Ct. 1839). The Rathbun opinion, far from being the outlier
view of a state court, was adopted as the common-law posi
tion by eminent jurists of the 19th century, including Chief
Justice Shaw of the Supreme Judicial Court of Massachu
setts. See Commonwealth v. Dailey, 66 Mass. 80, 83 (1853)
(discussing Rathbun with approval in a case involving waiver
of the right to a 12-man jury).
It may well be desirable to require a defendant’s personal
waiver with regard to certain rights. Rule 11(c) of the Fed
eral Rules of Criminal Procedure, for example, provides that
before accepting a guilty plea the court must “address the
defendant personally in open court,” advise him of the conse
2 We have avoided addressing whether the right has a basis in the Con
stitution. In Gomez v. United States, 490 U. S. 858 (1989), we interpreted
the Federal Magistrates Act, 28 U. S. C. § 636(b)(3), not to permit a magis
trate judge to oversee voir dire, 490 U. S., at 875–876, making it unneces
sary to consider whether there was a constitutional right to have an Arti
cle III judge oversee voir dire. In Peretz v. United States, 501 U. S. 923
(1991), we held that judicial overseeing of the voir dire had been waived,
id., at 936–937, which obviated having to decide whether it was a constitu
tional right. See United States v. Olano, 507 U. S. 725, 732–733 (1993)
(waiver extinguishes the error of not complying with a legal rule).

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quences of his plea, and ensure that the plea is voluntary.
See also Rule 10(b) (waiver of right to appear at arraignment
must be in writing signed by counsel and defendant). I do
not contend that the Sixth Amendment’s right to assistance
of counsel prohibits such requirements of personal partici
pation, at least where they do not impair counsel’s expert
assistance.
Even without such rules it is certainly prudent, to forestall
later challenges to counsel’s conduct, for a trial court to sat
isfy itself of the defendant’s personal consent to certain ac
tions, such as entry of a guilty plea or waiver of jury trial,
for which objective norms require an attorney to seek his
client’s authorization. See, e. g., ABA Model Rule of Profes
sional Conduct 1.2(a) (2007) (“In a criminal case, the lawyer
shall abide by the client’s decision, after consultation with
the lawyer, as to a plea to be entered, whether to waive jury
trial and whether the client will testify”). But I know of no
basis for saying that the Constitution automatically invali
dates any trial action not taken by the defendant personally,
though taken by his authorized counsel. I know of no way
of determining, except by sheer prescription, which trial
rights are ex ante and by law subject to such a limitation
upon waiver. Assuredly the tactical-fundamental dichotomy
does not do the trick. I would leave this matter of placing
reasonable limits upon the right of agency in criminal trials
to be governed by positive law, in statutes and rules of
procedure.
I would hold that petitioner’s counsel’s waiver was effec
tive because no rule or statute provides that the waiver come
from the defendant personally.
Justice Thomas, dissenting.
The Court holds today that neither the Federal Magis
trates Act, 28 U. S. C. § 631 et seq., nor the Constitution re
quires that a criminal defendant on trial for a felony person
ally give his informed consent before a magistrate judge may

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preside over jury selection. The Court proceeds from the
premise, established in Peretz v. United States, 501 U. S. 923
(1991), that the Federal Magistrates Act authorizes magis
trate judges to preside over felony jury selection if the par
ties consent. I reject that premise and, for the reasons set
forth below, would overrule Peretz and hold that the delega
tion of voir dire in this case was statutory error. I further
conclude that the error may be corrected despite petitioner’s
failure to raise a timely objection in the District Court. Ac
cordingly, I would reverse the judgment below.
I
A
This is the third time the Court has addressed the circum
stances under which a district judge may delegate felony
voir dire proceedings to a magistrate judge under the “addi
tional duties” clause of the Federal Magistrates Act, 28
U. S. C. § 636(b)(3). In Gomez v. United States, 490 U. S. 858
(1989), the Court unanimously held that § 636(b)(3) does
not authorize delegation of felony voir dire proceedings
to a magistrate judge. Although the defendants in Gomez
had objected to the delegation, neither the Court’s reason
ing nor its conclusion turned on that fact. Rather, the
Court’s interpretation of § 636(b)(3) rested primarily on two
inferences drawn from the statutory scheme. First, the
Court reasoned that Congress’ “carefully defined grant of au
thority to conduct trials of civil matters and of minor crimi
nal cases should be construed as an implicit withholding of
the authority to preside at a felony trial.” Id., at 872. Sec
ond, the Court found it “incongruous” to assume that Con
gress intended felony jury selection to be among magistrate
judges’ additional duties but failed to provide an explicit
standard of review as it had done for other duties described
in the statute. Id., at 874. Neither of these inferences
depended on the presence or absence of the parties’ con
sent, and the Court’s conclusion was accordingly unqualified:

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“Congress . . . did not contemplate inclusion of jury selection
in felony trials among a magistrate’s additional duties.” Id.,
at 872; see also ibid., n. 25 (“[W]e decide that the Federal
Magistrates Act does not allow the delegation of jury selec
tion to magistrates”); id., at 875–876 (“The absence of a spe
cific reference to jury selection in the statute, or indeed, in
the legislative history, persuades us that Congress did not
intend the additional duties clause to embrace this function”
(footnote omitted)).
Two years later, the Court decided Peretz. Peretz’s trial
took place before this Court’s decision in Gomez, and his at
torney had agreed to the delegation of voir dire, assuring
the Magistrate Judge that his client had consented. During
the pendency of Peretz’s appeal the Court decided Gomez,
and Peretz argued that Gomez required reversal of his con
viction. The Court of Appeals disagreed, concluding that he
had waived any challenge to the Magistrate Judge’s super
vision of voir dire. Before this Court, the Government
defended the Court of Appeals’ holding as to waiver but
confessed error with respect to the delegation of voir dire,
“agree[ing] with petitioner . . . that Gomez foreclose[d]
the argument that the statute may be read to authorize
magistrate-conducted voir dire when the defendant con
sents.” Brief for United States in Peretz v. United States,
O. T. 1990, No. 90–615, p. 9.
Despite the Government’s confession of error, the Court,
“[i]n an amazing display of interpretive gymnastics,” Peretz,
supra, at 940–941 (Marshall, J., dissenting), held in a 5-to-4
decision that § 636(b)(3) does, after all, permit magistrate
judges to conduct felony voir dire proceedings, so long as the
parties consent. There is no need here to reproduce Peretz’s
flawed reasoning or to rehash the debate between the major
ity and dissenting opinions. Suffice it to say that, in my
view, Gomez correctly interpreted § 636(b)(3) not to author
ize delegation of felony jury selection regardless of the par
ties’ consent, and I agree with the dissenters in Peretz that

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the Court’s contrary conclusion in that case was based on a
patently “revisionist construction of the Act.” 501 U. S., at
947 (opinion of Marshall, J.).
The only question, then, is whether to give stare decisis
effect to Peretz’s erroneous conclusion that § 636(b)(3) au
thorizes magistrate judges to conduct felony jury selection
if the parties consent. Although “[i]t is true that we give
stronger stare decisis effect to our holdings in statutory
cases than in constitutional cases,” that rule “is not absolute,
and we should not hesitate to allow our precedent to yield to
the true meaning of an Act of Congress when our statutory
precedent is ‘unworkable’ or ‘badly reasoned.’ ” Clark v.
Martinez, 543 U. S. 371, 401–402 (2005) (Thomas, J., dissent
ing). Peretz is both. Two considerations in particular con
vince me that Peretz should be overruled.
B
First, Peretz leaves the Court with no principled way to
decide the statutory question presented in this case. Con
trary to the Court’s suggestion, the question presented here
is not whether “every instance of waiver requires the per
sonal consent of the client,” ante, at 250; rather, it is the far
narrower question whether § 636(b)(3) requires the defend
ant’s personal consent before felony jury selection may be
delegated to a magistrate judge. The Court answers this
question in the negative, but does not point to anything in
§ 636(b)(3) or in the broader statutory scheme that supports
its conclusion. It does not because it cannot. Not having
provided for delegation of felony voir dire proceedings under
the additional duties clause, Congress of course did not spec
ify whether the parties’ consent is required. And “[b]ecause
the additional duties clause contains no language predicating
delegation of an additional duty upon litigant consent, it like
wise contains nothing indicating what constitutes ‘consent’
to the delegation of an additional duty.” Peretz, supra, at
947, n. 6 (Marshall, J., dissenting).

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Congress’ silence is particularly telling in the context of
the Federal Magistrates Act. Elsewhere in the Act, Con
gress took great care to specify whether and in what manner
the litigants must consent before a magistrate judge may
assume significant duties. In § 636(c)(1), for example, Con
gress provided that full-time magistrate judges may conduct
civil trials “[u]pon the consent of the parties,” and that part
time magistrate judges may do so “[u]pon the consent of the
parties, pursuant to their specific written request.” Con
gress further provided in § 636(c)(2) that “[t]he decision of
the parties shall be communicated to the clerk of court,” and,
if the parties do not consent, the district judge may not raise
the matter again without “advis[ing] the parties that they
are free to withhold consent without adverse substantive
consequences.” I have previously explained at length why
§ 636(c) is best read to require the express consent of the
parties, see Roell v. Withrow, 538 U. S. 580, 591–597 (2003)
(dissenting opinion), and I will not repeat that discussion
here, other than to point out that Congress obviously focused
on the issue and gave detailed instructions regarding the
form of the parties’ consent.
Even more telling is that Congress required the defend
ant’s express, informed consent before a magistrate judge
may conduct a misdemeanor trial. Section 636(a)(3) author
izes magistrate judges to conduct certain misdemeanor trials
“in conformity with and subject to the limitations of ” 18
U. S. C. § 3401, which spells out in detail the manner in which
the defendant must consent:
“The magistrate judge shall carefully explain to the de
fendant that he has a right to trial, judgment, and sen
tencing by a district judge and that he may have a right
to trial by jury before a district judge or magistrate
judge. The magistrate judge may not proceed to try
the case unless the defendant, after such explanation,
expressly consents to be tried before the magistrate
judge and expressly and specifically waives trial, judg

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ment, and sentencing by a district judge. Any such
consent and waiver shall be made in writing or orally on
the record.” § 3401(b).
The Court recites the language of § 3401(b), but gives it no
weight in its analysis. It recognizes that “[t]here are in
stances in federal criminal proceedings where the procedural
requisites for consent are specified and a right cannot be
waived except with a defendant’s own informed consent.”
Ante, at 247. But it is given no pause by the fact that the
Federal Magistrates Act, the very statute it interprets to
permit delegation of felony proceedings without the defend
ant’s “own informed consent,” expressly requires such con
sent before a magistrate judge may conduct a misdemeanor
trial. Instead, the Court worries that “requiring personal,
on-the-record approval from the client could necessitate a
lengthy explanation the client might not understand at the
moment and that might distract from more pressing mat
ters,” ante, at 250, heedless of the fact that Congress plainly
viewed any such “burden[s] [on] the trial process,” ante, at
253, as outweighed by the need to obtain the defendant’s per
sonal consent before a magistrate judge may preside, even
over a misdemeanor trial.
The Court glides over this glaring anomaly, asserting that
“[t]he controlling statute in this case has a different design,”
and “does not state that consent to preside over felony voir
dire must be granted by following a procedure of similar
clarity.” Ante, at 247. But there is only one statute at
issue here—the Federal Magistrates Act expressly incorpo
rates 18 U. S. C. § 3401(b)—and the fact that it does not man
date “a procedure of similar clarity” for delegation of felony
jury selection is hardly surprising, since § 636(b)(3)—which
provides in its entirety that “[a] magistrate judge may be
assigned such additional duties as are not inconsistent with
the Constitution and laws of the United States”—says not a
word about delegation of felony jury selection, much less
about whether and in what form the parties must consent.

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The Court further suggests that § 3401(b) is inconsequen
tial because “there are relevant differences between presid
ing over a full trial and presiding over voir dire.” Ante,
at 252. But even Peretz recognized that “supervision of en
tire civil and misdemeanor trials” is “comparable in responsi
bility and importance to presiding over voir dire at a felony
trial.” 501 U. S., at 933. And of course, it was Congress’
omission of any mode of consent for delegation of felony pro
ceedings, in contradistinction to its detailed treatment of the
consent required for delegation of civil and misdemeanor
trials, that drove Gomez’s analysis. 490 U. S., at 872 (“[T]he
carefully defined grant of authority to conduct trials of civil
matters and of minor criminal cases should be construed as
an implicit withholding of the authority to preside at a felony
trial”); see also Peretz, supra, at 955 (Scalia, J., dissenting)
(“By specifically authorizing magistrates to perform duties
in civil and misdemeanor trials, and specifying the manner
in which parties were to express their consent in those situa
tions, the statute suggested absence of authority to preside
over felony trials through some (unspecified) mode of con
sent”). Today’s decision is truly an ironic reversal. The
Court once thought that Congress’ differential treatment of
felony jury selection and misdemeanor trials was a reason
to believe that Congress had entirely withheld authority to
preside over felony jury selection. Today, however, the
Court says that the “relevant differences” between these re
sponsibilities support the conclusion that Congress permit
ted delegation of felony jury selection upon a lesser showing
of consent than that required for delegation of a misde
meanor trial.
In the end, I am sympathetic to petitioner’s argument that
§ 636(b)(3) should be read in pari materia with § 3401(b).
See Brief for Petitioner 38 (“If, in enacting the [Federal
Magistrates Act,] Congress believed a defendant’s explicit,
personal consent was constitutionally necessary to bestow
authority upon a magistrate judge in federal misdemeanor

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cases, then a fortiori Congress would have believed that
such explicit, personal consent is necessary to permit a mag
istrate judge to conduct felony jury selection”). And I share
his view that Congress undoubtedly would have adopted
something akin to § 3401(b)’s requirements had it authorized
delegation of felony jury selection. See Peretz, supra, at
947, n. 6 (Marshall, J., dissenting) (“I would think, however,
that the standard governing a party’s consent to delegation
of a portion of a felony trial under the additional duties
clause should be at least as strict as that governing delega
tion of a misdemeanor trial to a magistrate”).
Nonetheless, I do not believe that Peretz’s erroneous inter
pretation of § 636(b)(3) gives me license to rewrite the Fed
eral Magistrates Act to reflect what I think Congress would
have done had it contemplated delegation of felony jury se
lection or foreseen the Court’s decision in Peretz. Cf. Brief
for Petitioner 33 (“What the Court is left to do in petitioner’s
case is to fill the gap by determining what Congress would
have done in enacting the [Federal Magistrates Act] had
it expressly addressed the ‘crucial’ consent issue” (footnote
omitted)). Where, as here, a mistaken interpretation of a
statute leaves the Court with no principled way to answer
subsequent questions that arise under the statute, it seems
to me that the better course is simply to acknowledge and
correct the error. Cf. Kimbrough v. United States, 552 U. S.
85, 116 (2007) (Thomas, J., dissenting).
C
A second reason why I would not give stare decisis effect
to Peretz is that it requires us to wade into a constitutional
morass. In Gomez, the Court declined to decide whether
the Constitution permits delegation of felony jury selection
to a magistrate judge. 490 U. S., at 872, n. 25. Peretz sim
ply brushed aside that difficult constitutional question. See
501 U. S., at 936 (“There is no constitutional infirmity in the
delegation of felony trial jury selection to a magistrate when

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the litigants consent”); cf. id., at 948–952 (Marshall, J., dis
senting) (discussing the “serious constitutional question”
“whether jury selection by a magistrate—even when a de
fendant consents—is consistent with Article III”); id., at 956
(Scalia, J., dissenting) (not resolving “the serious and diffi
cult constitutional questions raised by the [majority’s] con
struction,” but suggesting that the Court’s reasoning ren
dered “the doctrine of unconstitutional delegation” “a dead
letter”).
Today the Court’s result requires it to go even further.
In addition to reaffirming Peretz’s questionable holding that
the Constitution permits delegation of felony voir dire pro
ceedings to a non-Article III judge, the Court decides that a
criminal defendant’s waiver of his right to an Article III
judge need not be personal and informed. The Court treats
this as an easy question, concluding that the choice between
an Article III judge and a magistrate judge is not among
those “basic trial choices,” ante, at 250, that require a de
fendant’s personal consent because “a magistrate judge is
capable of competent and impartial performance of the judi
cial tasks involved in jury examination and selection,” and
because magistrate judges are supervised by Article III
judges, ante, at 251–252. Under our precedents, however,
the question is not so easily dispatched.
Our cases shed little light on whether and when a criminal
defendant must personally waive a constitutional right. Al
though we have previously stated that, “[f]or certain funda
mental rights, the defendant must personally make an in
formed waiver,” New York v. Hill, 528 U. S. 110, 114 (2000),
many of the cases we have cited for that proposition do not
in fact stand for it. For example, we have cited Brookhart
v. Janis, 384 U. S. 1 (1966), for the proposition that the de
fendant’s personal consent is required for a waiver of his
right to plead not guilty. See, e. g., Hill, supra, at 114. But
Brookhart’s holding was narrower. The only question pre
sented there was “whether counsel has power to enter a plea

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which is inconsistent with his client’s expressed desire and
thereby waive his client’s constitutional right to plead not
guilty and have a trial in which he can confront and cross
examine the witnesses against him.” 384 U. S., at 7 (em
phasis added). Brookhart thus did not decide whether the
Constitution prohibits counsel from entering a guilty plea
on his client’s behalf in cases where the defendant has not
expressed a contrary desire.
Similarly, Patton v. United States, 281 U. S. 276 (1930), a
case often cited for the proposition that the right to a jury
trial can be waived only by the defendant personally, does
not draw a clear distinction between the defendant’s own
consent and that of his attorney. The Court stated in dicta
that “the express and intelligent consent of the defendant”
is required “before any waiver [of the right to a jury trial]
can become effective.” Id., at 312. But that requirement
appears to have been satisfied in Patton by counsel’s repre
sentation to the trial court that he had conferred with his
clients and obtained their consent. Id., at 286–287.
Our cases thus provide little relevant guidance. Justice
Scalia may well be correct that, as a matter of first princi
ples, there is no right (other than perhaps the sui generis
right to counsel) that cannot be waived by a defendant’s at
torney, acting as the duly authorized agent of his client.
See ante, at 257 (opinion concurring in judgment). But if I
were to accept the Court’s oft-repeated dictum that there
are certain fundamental rights that can be waived only by
the defendant personally, see, e. g., Florida v. Nixon, 543
U. S. 175, 187 (2004) (“[C]ertain decisions regarding the exer
cise or waiver of basic trial rights are of such moment that
they cannot be made for the defendant by a surrogate”); Hill,
supra, at 114; Taylor v. Illinois, 484 U. S. 400, 417–418 (1988)
(“[T]here are basic rights that the attorney cannot waive
without the fully informed and publicly acknowledged con
sent of the client”), I see no reason why the right to an Arti
cle III judge should not be among them.

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There is no apparent reason, for example, why the right
to an Article III judge should be deemed any less fundamen
tal, or its exercise any more “ ‘tactical,’ ” ante, at 249 (opinion
of the Court) (quoting Taylor, supra, at 418), than the right
to a jury trial. The Framers viewed independent judges, no
less than the right to a jury of one’s peers, as indispensable
to a fair trial. See, e. g., United States v. Hatter, 532 U. S.
557, 568–569 (2001) (discussing the Framers’ overriding con
cern for an independent Judiciary and quoting Chief Jus
tice Marshall’s statement that the “ ‘greatest scourge . . .
ever inflicted’ ” “ ‘was an ignorant, a corrupt, or a dependent
Judiciary’ ” (quoting Proceedings and Debates of the Vir
ginia State Convention, of 1829–1830, p. 619 (1830))). For
that reason, the Constitution affords Article III judges the
structural protections of life tenure and salary protection.
Art. III, § 1. The Court’s observation that “a magistrate
judge is capable of competent and impartial performance” of
judicial duties, ante, at 251, is thus beside the point.* Mag
*Equally beside the point is the fact that magistrate judges are ap
pointed by, and subject to the supervision of, district judges. The Court
reassures itself by hypothesizing that the District Court could have ruled
on any objections to the Magistrate Judge’s rulings. Ante, at 251–252.
But the Court once “harbor[ed] serious doubts” that a district judge who
was not present during jury selection could “meaningfully” review a mag
istrate judge’s rulings, Gomez v. United States, 490 U. S. 858, 874 (1989),
because “no transcript can recapture the atmosphere of the voir dire,” id.,
at 875. The Court does not explain what has intervened to dispel those
doubts. And even if district judges could meaningfully review magistrate
judges’ voir dire rulings, that would not change the fact that magistrate
judges are subject to outside influences in ways that Article III judges
are not. As Judge Posner has explained:
“The fact that the appointing power has been given to Article III judges
is the opposite of reassuring. It makes magistrates beholden to judges
as well as to Congress. . . . The Constitution built internal checks and
balances into the legislative branch by making Congress bicameral and
into the judicial branch by guaranteeing all federal judges—not just Su
preme Court Justices, or appellate judges generally—tenure during good
behavior and protection against pay cuts. Appellate judges can reverse
district judges, can mandamus them, can criticize them, can remand a case
to another judge, but cannot fire district judges, cow them, or silence

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istrate judges do not enjoy the structural protections of Arti
cle III: They serve 8-year terms and may be removed for
cause, 28 U. S. C. §§ 631(e), (i), and they are subject to dimi
nution of their salaries and outright abolition of their offices
by Congress. Accordingly, whatever their virtues, magis
trate judges are no substitute for Article III judges in the
eyes of the Constitution.
In short, if I accepted the Court’s dictum that the right to
a jury trial may be waived only by the defendant personally,
see, e. g., Nixon, supra, at 187, I would be hard pressed to
conclude that waiver of the right to an Article III judge dur
ing a critical stage of a felony trial requires anything less.
That said, I include this brief discussion of the constitutional
issues this case presents not because I would decide them,
but to point out that the Court gives them short shrift.
These are serious constitutional questions, see Roell, 538
U. S., at 595 (Thomas, J., dissenting), and they are posed only
because of Peretz’s erroneous interpretation of the Federal
Magistrates Act. Indeed, I suspect that Congress withheld
from magistrate judges the authority to preside during fel
ony trials precisely in order to avoid the constitutional ques
tions Peretz now thrusts upon us. Again, rather than plow
headlong into this constitutional thicket, the better choice
is simply to overrule Peretz. Cf. Peretz, 501 U. S., at 952
(Marshall, J., dissenting) (finding the Court’s resolution of
difficult Article III questions “particularly unfortunate”
where “the most coherent reading of the Federal Magis
trates Act avoids these problems entirely”).
II
Because I conclude that Peretz should be overruled, and
that the District Court therefore erred in delegating voir
them—cannot prevent them from making independent judgments and ex
pressing independent views. . . . [A]s long as [district judges] enjoy the
tenure and compensation protections of Article III, they are independent
of [those] who appointed them . . . . Magistrates do not have those protec
tions; the judges control their reappointment.” Geras v. Lafayette Dis
play Fixtures, Inc., 742 F. 2d 1037, 1053 (CA7 1984) (dissenting opinion).

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270 GONZALEZ v. UNITED STATES
Thomas, J., dissenting
dire to the Magistrate Judge, I must also address the Gov
ernment’s alternative argument that petitioner forfeited his
claim by failing to object to the delegation. Petitioner’s fail
ure to object, the Government contends, means that he can
not prevail unless he satisfies the requirements of the plain
error rule. It is true that petitioner did not raise a timely
objection to the District Court’s delegation of voir dire.
And petitioner cannot satisfy the plain-error rule because
the statutory error below—unauthorized delegation of voir
dire to a magistrate judge—was not “plain” under Peretz.
Not all uncontested errors, however, are subject to the
plain-error rule. In limited circumstances, we have “agreed
to correct, at least on direct review, violations of a statutory
provision that embodies a strong policy concerning the
proper administration of judicial business even though the
defect was not raised in a timely manner.” Nguyen v.
United States, 539 U. S. 69, 78 (2003) (internal quotation
marks omitted). In Nguyen, a non-Article III judge sat by
designation on the Ninth Circuit panel that affirmed petition
ers’ convictions. Petitioners failed to object to the composi
tion of the panel in the Ninth Circuit and raised the issue for
the first time in their petitions for certiorari. Because the
Ninth Circuit panel “contravened the statutory requirements
set by Congress for the composition of the federal courts of
appeals,” id., at 80, and because those requirements “em
bodie[d] weighty congressional policy concerning the proper
organization of the federal courts,” id., at 79, we held that
petitioners’ failure to object did not preclude relief. We
specifically declined to apply the plain-error rule:
“It is true, as the Government observes, that a failure
to object to trial error ordinarily limits an appellate
court to review for plain error. See 28 U. S. C. § 2111;
Fed. Rule Crim. Proc. 52(b). But to ignore the violation
of the designation statute in these cases would in
correctly suggest that some action (or inaction) on peti
tioners’ part could create authority Congress has quite

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271 Cite as: 553 U. S. 242 (2008)
Thomas, J., dissenting
carefully withheld. Even if the parties had expressly
stipulated to the participation of a non-Article III judge
in the consideration of their appeals, no matter how dis
tinguished and well qualified the judge might be, such a
stipulation would not have cured the plain defect in the
composition of the panel.” Id., at 80–81.
I see no reason to treat this case differently than Nguyen.
Just as “Congress’ decision to preserve the Article III char
acter of the courts of appeals [was] more than a trivial con
cern” in that case, id., at 80, so too here Congress’ decision to
preserve the Article III character of felony trials “embodies
weighty congressional policy concerning the proper organi
zation of the federal courts,” id., at 79. Accordingly, as in
Nguyen, the Court can and should correct the error in this
case despite petitioner’s failure to raise a timely objection
below.
III
For the reasons stated, I would reverse the judgment of
the Court of Appeals and remand for a new trial.