United States v. France - Oral Argument - October 02, 1990

United States v. France

Media for United States v. France

Audio Transcription for Opinion Announcement - January 22, 1991 in United States v. France

Audio Transcription for Oral Argument - October 02, 1990 in United States v. France

William H. Rehnquist:

We'll hear argument next in No. 89-1363, United States against Darlina France.

Mr. Bryson.

William C. Bryson:

Mr. Chief Justice, and may it please the Court:

The issue in this case is whether a defendant may challenge the assignment of jury selection in a criminal case to a magistrate when the defendant has not objected to that procedure in the district court.

Now, this case comes to the Court on writ of certiorari to the United States Court of Appeals for the NInth Circuit.

The case was tried in the district of Hawaii, which at the time had a practice and a local rule of permitting the magistrate to conduct jury selection.

This was done in a number of districts around the country, and was terminated abruptly, of course, with this Court's decision in the Gomez case 2 years ago.

This case raises the question, of course, what to do with the many cases that were either on direct review or have come up on collateral attack following the Gomez decision, where a magistrate did select a jury, and where there was, in the case of direct review cases, no objection to the use of the magistrate.

The condition was for assault and firearms charges, and an appeal was taken in which the issue of the magistrate's jury selection was not raised in the court of appeals initially.

The case was pending in the court of appeals when this Court decided the Gomez case, and the respondent promptly requested reversal on that ground.

The court of appeals did in fact reverse on that ground in response to the Government's principal submission, which was that there had been no objection, and therefore reversal was inappropriate.

The court of appeals said that the so-called Futility Doctrine applied.

That is to say that because the court of appeals for the Ninth Circuit had previously upheld jury selection by magistrates on both statutory and constitutional grounds, that it would have been futile for the defendant to object to jury selection by the magistrate, and therefore the requirements of rules 51 and 52 of the Federal Rules of Criminal Procedure were waived.

That is to say there was no obligation for the defendant to raise this point in the district court, and there was no forfeiture of the right as a consequence of the failure to raise these points.

The respondent here has made a number of different arguments.

The futility point was the only one addressed by the court of appeals, but we have addressed and will address here each of the various arguments that respondent has raised in support of the judgment below.

Turning first to the futility argument, it's useful I think first to start with the simple language of rules 51 and 52, and as I'll concede, the language of the rules does not contain any reference to any futility exception.

The only exception in rule 52 is an exception for plain error, and that is generally understood to be error which was quite obvious and led to a miscarriage of justice, undermined the confidence in the verdict, undermined the confidence in the integrity of judicial proceedings.

Sandra Day O'Connor:

What if the error was that the dispute was not... did not comply with article III requirements?

It was the jury was selected by somebody who didn't meet article III requirements.

Could that rise to the level of plain error, do you think?

William C. Bryson:

I think in some cases it could, Your Honor, and let me suggest that I think there is a difference because that depends entirely on who that person was.

In our... our submission is that when that person is, as was the case in this case, a judicial officer who is completely under the control of the court, is somebody who is hired an fired by the court, and who is performing a task which is subject to the review of the court, that if there is an article III violation it is not one which is so grave that you would say that the entire proceeding has to be negated, that this constitute plain error.

However, I would hasten to add--

Sandra Day O'Connor:

Is that true even where Gomez makes clear that Congress has not authorized magistrates to carry out this function?

William C. Bryson:

--Oh, I think so, Your Honor.

The fact that... it is accepted, of course, that Congress didn't authorize this procedure to be followed, but that does not necessarily mean that that right, and it is a right, we submit, to have a judge conduct jury selection.

But our solution is that that is a right which can be waived unless it constitutes plain error.

And again, we submit that this doesn't constitute plain error.

Sandra Day O'Connor:

Well, the question then becomes whether it is plain error under these circumstances, when it is not an article III judge and Congress has not authorized it.