ANIBAL ARROYO-PLAUD, PETITIONER V. UNITED STATES OF AMERICA No. 89-6966 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 First Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals (Pet. App. D1-D6) is unreported. JURISDICTION The judgment of the court of appeals was entered on January 16, 1990. The petition for a writ of certiorari was filed on March 19, 1990. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED /1/ 1. Whether petitioner's conviction must be reversed because a magistrate presided over jury selection at his trial even though he did not object to the magistrate's role. 2. Whether the evidence supports the jury's verdict. STATEMENT After a jury trial in the United States District Court for the District of Puerto Rico, petitioner was convicted of depriving another of liberty without due process of law by using excessive force during an arrest, in violation of 18 U.S.C. 242. He was sentenced to six months' imprisonment, to be followed by three years' probation. He was also fined $1,000. 1. The evidence at trial showed that petitioner, an officer in the Police of Puerto Rico, used excessive force to arrest a suspect. On July 10, 1986, petitioner attempted to stop Freddie Diaz's automobile to cite Diaz for a traffic violation. Diaz sped away, however, and petitioner followed him until Diaz turned into a dead-end street where petitioner caught up with him. When petitioner told Diaz that he was under arrest, Diaz replied that he would not accompany petitioner unless there was another police officer present. Without any further provocation, petitioner used his nightstick to beat Diaz on his side, back, and head. Pet. App. D2-D3. At petitioner's trial, a magistrate presided over jury selection. Petitioner did not object to the magistrate's role in jury selection. When trial commenced before the district court, the court asked whether the parties had "any objection whatsoever to the procedure used by the magistrate." Pet. App. D2. Petitioner stated that he had no objection. Ibid. 2. On appeal, petitioner argued that his conviction should be reversed on the basis of 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 to magistrates in criminal trials without the defendant's consent. The court of appeals rejected that contention. Relying on United States v. Lopez-Pena, 890 F.2d 490 (1st Cir. 1989), withdrawn and pet. for reh. granted (Feb. 9, 1990), the court held that petitioner waived his right to object to the assignment of jury selection to a magistrate. Pet. App. D5-D6. The court also concluded (Pet. App. D3-D5) that the evidence was sufficient to show that petitioner used excessive force in arresting Diaz. Specifically, the court noted that five eyewitnesses testified that petitioner repeatedly beat Diaz with the nightstick. From that evidence, the court found that the jury could conclude that petitioner used more force than was reasonably necessary to subdue an unarmed man during an arrest for a traffic offense. ARGUMENT 1. Petitioner renews his contention (Pet. 2-5) that this Court's decision in Gomez requires reversal of his conviction. /2/ He also claims (Pet. 4) that an objection to the magistrate's presiding over jury selection would have been futile. On April 23, 1990, this Court granted the government's petition for a writ of certiorari to review the Ninth Circuit's decision in United States v. France, No. 89-1363. That case presents the question whether a defendant's failure to object to the magistrate's supervision of jury selection may be excused on the ground that an objection would have been futile in light of prior Ninth Circuit decisions approving the delegation of jury selection to magistrates. In this case, the court of appeals relied on its prior decision in United States v. Lopez-Pena, supra, to reject petitioner's Gomez claim. /3/ In Lopez-Pena, the court held that a defendant who failed to object to the delegation of jury selection to a magistrate had waived any claim based on Gomez. The court in Lopez-Pena specifically rejected the contention that an objection to the delegation of jury selection would have been futile in light of prior First Circuit precedent. The court noted that prior First Circuit cases had held only that it was not plain error for a magistrate to preside over jury selection. See, e.g., United States v. Rivera-Sola, 713 F.2d 866 (1st Cir. 1983). The First Circuit had never held that the Magistrates Act authorized district courts to delegate jury selection to magistrates, and thus nothing in its prior decisions rendered an objection to that practice futile. Nevertheless, both France and this case address the scope and effect of this Court's decision in Gomez. Thus, this Court's disposition of France may bear on the issues raised by this petition. For that reason, the Court may wish to hold this petition pending the decision in France. 2. Petitioner's remaining contention (Pet. 5-7) -- that the evidence was insufficient to show that petitioner used excessive force to arrest Diaz -- is without merit. As the court of appeals noted, five eyewitnesses testified that petitioner repeatedly beat Diaz with a nightstick. Moreover, each of the witnesses rebutted petitioner's claim that Diaz had a knife. Although petitioner points out that the testimony of the witnesses contained some inconsistencies, it is up to the jury "to determine the credibility of witnesses." Glasser v. United States, 315 U.S. 60, 80 (1942). CONCLUSION To the extent the petition challenges the magistrate's supervision of jury selection at petitioner's trial, it should be held and disposed of in light of the decision in United States v. France, No. 89-1363. In all other respects, it should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S. G. DENNIS, JR. Assistant Attorney General J. DOUGLAS WILSON Attorney MAY 1990 /1/ Although the petition does not identify the questions petitioner wishes this Court to review, the Argument section of the petition discusses the issues we have identified. /2/ Petitioner argues (Pet. 2-3) that Gomez should apply retroactively to cases pending on direct appeal. The United States agrees with that point. /3/ The First Circuit has granted rehearing en banc in Lopez-Pena. Nevertheless, the panel opinion in Lopez-Pena was used to justify the decision in this case. Thus, we will use that panel opinion to explain the rationale of the decision below.