SALVATORE PANICO, PETITIONER V. UNITED STATES OF AMERICA No. 90-5147 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A2) is unpublished. JURISDICTION The judgment of the court of appeals was entered on April 30, 1990. The petition for a writ of certiorari was filed on June 27, 1990. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner is entitled to have his conviction vacated on collateral attack, because a magistrate presided over jury selection at his trial. STATEMENT 1. Between 1980 and 1983, petitioner participated in the theft and resale of amphetamines stolen from pharmaceutical manufacturing companies. After a trial in November 1986 in the United States District Court for the Eastern District of New York, he was convicted of conspiracy to traffic in narcotics, in violation of 21 U.S.C. 846; interference with commerce by threats or violence, in violation of 18 U.S.C. 1951; and trafficking in amphetamines, in violation of 21 U.S.C. 841(a)(1). He was sentenced to an aggregate term of 17 years' imprisonment, to be followed by a lifetime term of special parole. The court of appeals affirmed his conviction on May 16, 1988. United States v. Panico, No. 88-1022. On November 14, 1988, this Court denied a petition for a writ of certiorari. Panico v. United States, 109 S. Ct. 400. 2. In 1989, petitioner filed the instant motion to vacate sentence under 28 U.S.C. 2255. /1/ In his motion, petitioner asserted that the district court had assigned jury selection at petitioner's trial to a federal magistrate and that the magistrate had presided over jury selection. Petitioner did not assert, however, that he had objected to the delegation of jury selection to the magistrate or to the magistrate's supervision of jury selection. Petitioner argued that he was entitled to reversal of his conviction based on this Court's decision in Gomez v. United States, 109 S. Ct. 2237 (1989), which held that the Federal Magistrates Act does not authorize district courts to delegate jury selection in felony trials to magistrates and that permitting a magistrate to supervise jury selection over the defendant's objection may not be dismissed as harmless error. Pet. App. A1. On October 19, 1989, the district court summarily denied the motion without requesting a response from the government. Pet. App. A1. 3. On appeal, petitioner renewed his claim that Gomez requires reversal of his conviction. His brief in the court of appeals asserted that a magistrate had presided over jury selection, but it did not claim that petitioner had objected to this practice at trial. Instead, petitioner asked the court of appeals to remand the case to the district court for a hearing to determine whether he had objected to the magistrate's supervision of jury selection. In response, the government sought a stay from the court of appeals to obtain the transcript of jury selection at petitioner's trial in order to determine whether a magistrate had in fact presided over jury selection and whether petitioner had objected to the magistrate's role. Before the transcript was prepared or the government filed a brief, the court of appeals affirmed (Pet. App. A1-A2). The court noted that petitioner made no claim that he objected to the delegation of jury selection to a magistrate. Relying on its decision in United States v. Vanwort, 887 F.2d 375, 382-383 (1989), cert. denied, 110 S. Ct. 1927 and 1936 (1990), in which it held that a defendant who failed to object to jury selection by a magistrate cannot obtain the benefit of Gomez, the court held that the district court had properly denied the motion. Pet. App. A1-A2. ARGUMENT Petitioner renews his contention (Pet. 4-12) that he is entitled to reversal of his conviction based on this Court's decision in Gomez. 1. In this Court, petitioner asserts for the first time (Pet. 2, 9) that he objected to the delegation of jury selection to a magistrate. Petitioner points to nothing in the record that supports that assertion, and both courts below denied petitioner relief because he could not establish that he objected to having a magistrate conduct jury selection. In the absence of any evidence that petitioner did in fact object, this Court also should treat petitioner's case as one in which the defendant failed to object to the magistrate's role in jury selection. 2. Even if petitioner could establish that he objected in the district court, however, his claim would not merit review. Petitioner's conviction became final in November 1988 when this Court denied his petition for a writ of certiorari following the court of appeals' affirmance of his conviction. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). Petitioner therefore is not entitled to the benefit of the decision in Gomez unless that decision is applied retroactively to cases that became final before Gomez was decided. This Court has held that a decision announcing a "new rule" is not retroactive to collateral attacks on convictions unless the new rule "places 'certain kinds of primary, private conduct beyond the power of the criminal law-making authority to proscribe'" or unless the new rule creates a procedure "without which the likelihood of an accurate conviction is seriously diminished." Teague v. Lane, 109 S. Ct. 1060, 1075, 1076-1077 (1989) (plurality opinion) (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring)); see Butler v. McKellar, 110 S. Ct. 1212, 1214, 1218 (1990). Under this analysis, the rule announced in Gomez is not retroactive to cases that became final before Gomez was decided. First, the Gomez Court announced a new rule. In Teague, the plurality held that "a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." 109 S. Ct. at 1070. The plurality further explained that "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Ibid.; Penry v. Lynaugh, 109 S. Ct. 2934, 2944 (1989) (contrasting "new" rules with mere applications of settled principles); Butler v. McKellar, 110 S. Ct. at 1217 (defining a "new rule" as one "susceptible to debate among reasonable minds"). Prior to Gomez, this Court had not addressed the question whether the Magistrates Act allowed jury selection to be delegated to magistrates. Gomez resolved a conflict among the courts of appeals on that issue. See 109 S. Ct. at 2240 n.7 (collecting cases). And in Gomez itself, the Court acknowledged that the plain language of the Magistrates Act seems to allow jury selection to be delegated to magistrates. See 109 S. Ct. at 2240. Accordingly, neither precedent nor plain statutory language dictated the result the Court reached in Gomez. Thus, as every court that has considered the issue has held, the rule announced in Gomez was "new" within the meaning of Teague, Penry, and Butler. See Hrubec v. United States, 734 F. Supp. 60, 65 (E.D.N.Y. 1990); United States v. Muller, 733 F. Supp. 1392, 1394 (D. Hawaii 1990); Gilberti v. United States, 731 F. Supp. 576, 578 (E.D.N.Y. 1990); United States v. Rubio, 722 F. Supp. 77, 84-85 (D. Del. 1989); see also United States v. Baron, 721 F. Supp. 259 (D. Hawaii 1989). Because Gomez established a new rule, that rule does not apply to petitioner's motion for collateral review unless it falls within one of the two exceptions outlined in Teague and subsequent decisions. The first exception, which allows retroactive application of rules placing certain conduct beyond the reach of the criminal law, obviously has no application to this case, since the rule in Gomez has nothing to do with the conduct regulated by substantive criminal statutes. Nor does the second exception apply. That exception is limited "to those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague, 109 S. Ct. at 1076-1077; see Butler, 110 S. Ct. at 1218. As examples, the Teague plurality listed grounds for collateral relief such as "'that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods.'" 109 S. Ct. at 1077 (quoting Rose v. Lundy, 455 U.S. 509, 544 (1982) (Stevens, J., dissenting)). In Saffle v. Parks, 110 S. Ct. 1257, 1264 (1990), the Court noted that "the precise contours of this exception may be difficult to discern," but held that it was reserved for rules having the same "primacy and centrality" as the rules governing the right to counsel adopted in Gideon v. Wainwright, 372 U.S. 335 (1963). The rule announced in Gomez does not fall within this exception. First, the fact that a magistrate selected a jury does not "seriously undermine" the integrity and reliability of the trial. Nothing in the Court's opinion in Gomez suggests that the Court viewed magistrates as unfit to preside over jury selection or that a jury selected by a magistrate was likely to be less fair than one selected by a district court. To the contrary, the Court noted that since the first version of the Magistrates Act had been enacted, "congressional concerns regarding magistrates' abilities had decreased." 109 S. Ct. at 2244. In addition, in a number of districts, magistrates had selected juries for several years prior to the decision in Gomez. /2/ No court has suggested that this practice undermined the integrity of the trial process. In fact, in districts where magistrates regularly supervised jury selection, such as the district where petitioner was tried, magistrates acquired considerable expertise in jury selection. As one district court concluded, "(w)here a neutral, detached experienced magistrate presides over the jury voir dire, it certainly is not more likely that an innocent man will be found guilty." Hrubec v. United States, 734 F. Supp. at 66; see also United States v. Muller, 733 F. Supp. at 1395 ("no indication" that jury selection by magistrates seriously diminishes the likelihood of an accurate conviction); United States v. Nickens, 729 F. Supp. 1407, 1409 (D.P.R. 1989) (selection of jury by magistrate "does not raise serious questions about the accuracy of the guilty verdict"). The examples supplied in Teague and Saffle v. Parks further demonstrate that the selection of a jury by a magistrate is not the sort of error that the Court intended to include in the second exception to the presumption of nonretroactivity. In Teague, the plurality gave three examples of practices that might fall within the second exception: mob domination of the trial, the use of perjured testimony, and the introduction of confessions obtained through torture. In Saffle, the Court held that the second exception to the Teague presumption against retroactivity extends only to rules having the same "primacy and centrality" as the right to counsel. The statutory right to have an Article III judge conduct jury selection, which the Court recognized in Gomez, is not of the same magnitude as the right to counsel or the right to be convicted on the basis of truthful and reliable testimony. Finally, in Teague, the plurality found that the lack of a fair cross-section of the community on a defendant's petit jury would not "seriously diminish" the accuracy and reliability of the trial process. As one court has held, "(e)mpanelment before a federal magistrate is no more likely to impact upon the accuracy of conviction than the use of peremptory challenges to strike jurors of the same race as the defendant." United States v. Rubio, 722 F. Supp. at 85. If a racially balanced petit jury is not one of the "bedrock procedural elements" that guard the accuracy of the trial, then a jury selected by a district judge also is not one of those elements. Consequently, because the Gomez decision promulgated a "new rule" that does not fall within either of the Teague exceptions, it is not retroactive to petitioner's claim. Even if Gomez applies retroactively to collateral challenges to final convictions, petitioner would not be entitled to relief under Section 2255. In Gomez, the Court held that the Magistrates Act did not authorize delegation of jury selection to magistrates. Thus, the Gomez decision involved a nonconstitutional interpretation of a federal statute. This Court has made clear that nonconstitutional errors of law that occur at trial do not "provide a basis for collateral attack unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 179, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). No "complete miscarriage of justice" occurred in this case. As set forth above, allowing magistrates to conduct voir dire and supervise jury selection does not undermine the integrity and reliability of a criminal trial. Thus, this practice is far from an error that "inherently" results in fundamental unfairness. Nor does petitioner suggest that he suffered any prejudice as a result of the magistrate's role in jury selection. Accordingly, the supervision of jury selection by a magistrate at petitioner's trial is not the kind of error that justifies relief under Section 2255. 3. Petitioner argues (Pet. 7-11) that he must be granted relief on collateral attack because Gomez is a "jurisdictional" holding. Petitioner, however, misapprehends the Gomez Court's use of the term "jurisdiction." In Gomez, the Court held that the selection of a jury by a magistrate was not harmless error because a defendant has a basic right "to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside." 109 S. Ct. at 2248. Because the issue in Gomez was whether the Federal Magistrates Act authorized the delegation of jury selection to magistrates, the Court's use of the term "jurisdiction" referred to the trial court's statutory authority to refer jury selection to a magistrate. See United States v. Wey, 895 F.2d 429, 431 (7th Cir. 1990) ("Gomez uses the word 'jurisdiction' in a context revealing that the Court meant 'authority'"); see also United States v. Rodgers, 466 U.S. 475, 479-480 (1984) (defining "jurisdiction" in 18 U.S.C. 1001 to mean "official, authorized functions"). Nothing in Gomez even remotely suggests that the district court lacked subject matter jurisdiction because the magistrate presided over jury selection. As the Seventh Circuit recently held, "(w)hich judicial officer presides during jury selection does not affect the court's subject-matter jurisdiction, for it has nothing to do with whether the tribunal may enter a judgment conclusively resolving the dispute." United States v. Wey, 895 F.2d at 431. Thus, the lack of "jurisdiction" referred to in Gomez suggests a procedural flaw akin to the lack of personal jurisdiction over the defendant, a matter that can be waived if not asserted. See Archie v. Christian, 808 F.2d 1132, 1134 (5th Cir. 1987) (en banc) ("(m)odern authority is not much given to concluding that procedural irregularities work ouster of a court's jurisdiction"). Magistrates are judicial officers who perform a variety of functions in aid of Article III judges, including, with the consent of the parties, conducting civil and misdemeanor criminal trials. See 18 U.S.C. 3401; 28 U.S.C. 636(b) and (c). Although Gomez established that magistrates are not authorized to conduct felony jury selection, that degree of participation by a magistrate in felony trials is not so incongruous or inconsistent with basic notions of procedural regularity as to undermine the integrity and public reputation of the federal criminal courts. Thus, the "jurisdictional" flaw in the delegation of jury selection to a federal magistrate does not render the ultimate judgment voidable on collateral review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General J. DOUGLAS WILSON Attorney AUGUST 1990 /1/ Petitioner had filed an earlier motion under Section 2255. That motion challenged the district court's failure to recuse itself from petitioner's trial. The district court denied that motion, and the court of appeals affirmed. United States v. Panico, No. 88-2258 (Nov. 29, 1988). /2/ The Brief for the United States in Gomez stated that 51 of the 93 judicial districts had local rules allowing magistrates to preside over jury selection. Post-Gomez litigation suggests that magistrates frequently selected juries in jurisdictions such as the Central District of California, see United States v. Gamble, appeal pending, No. 89-50067 (9th Cir.); the District of Puerto Rico, see United States v. Lopez-Pena, 890 F.2d 490 (1st Cir. 1989), pet. for reh. granted and opinion withdrawn (Feb. 9, 1990); the Central District of Illinois, see United States v. Wey, 895 F.2d 429 (7th Cir.), cert. denied, 110 S. Ct. 3283 (1990); the Eastern District of New York, see United States v. Vanwort, 887 F.2d 375 (2d Cir. 1989), cert. denied, 110 S. Ct. 1927 and 1936 (1990), and United States v. Mang Sun Wong, 884 F.2d 1537 (2d Cir. 1989), cert. denied, 110 S. Ct. 1140 (1990); the District of Delaware, see United States v. Rubio, supra; and the District of the Virgin Islands, see Government of the Virgin Islands v. Williams, 892 F.2d 305 (3d Cir. 1989), cert. denied, 110 S. Ct. 2211 (1990).