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More on Tuesday’s Grant in 06-11612, Gonzalez v. US

Can the counsel for a federal criminal defendant waive that defendant’s constitutional right to have an Article III judge, or must the defendant himself explicitly agree? This is the question presented in Gonzalez v. United States, one of the seventeen new cases in which cert. was granted Tuesday.

In December 2004, petitioner Homero Gonzalez was indicted on conspiracy and drug charges arising from his role in a major drug-trafficking operation. In January 2005, petitioner and his attorney were in court to begin jury selection for his trial. Before jury selection began, a magistrate judge asked the prosecutor and petitioner’s attorney to “approach the bench.” She then asked the two attorneys whether the parties would consent to having her preside over the jury selection; both attorneys agreed. The record shows that at no time did Gonzalez – who does not speak English – consent to have a non-Article III judge preside over jury selection; it also shows that Gonzalez was never informed by the judge that his attorney had consented.

On appeal, Gonzalez – now represented by new counsel – argued that “the magistrate judge’s presiding over jury selection was improper because the record did not reflect [his] knowing and voluntary consent” to the substitution. The Fifth Circuit acknowledged an Eleventh Circuit decision, United States v. Maragh, which held that the “‘defendant’s personal consent is required for the delegation of jury selection to be constitutionally valid,’” but it ultimately agreed with several other circuits that personal consent is not required. Certain rights are so fundamental that they must be waived by the defendant personally, the Fifth Circuit explained, but Gonzalez had not provided any proof that “the right to have an Article III judge conduct voir dire” was one of them.

In his petition for certiorari, petitioner alleged a circuit split over whether a federal criminal defendant must consent personally to a magistrate judge presiding over jury selection or if consent from counsel is enough. In 1991, the Court held in Peretz v. United States that “a district court does not violate the defendant’s constitutional right to an Article III judge” when jury selection is delegated to a magistrate judge, with the defendant’s consent. Since Peretz, the courts of appeals have disagreed on what constitutes “consent.” The Eleventh Circuit in Maragh required “the defendant’s personal consent”; by contrast, two circuits – the First and Seventh – have not required personal consent, while two other circuits – the Sixth and Tenth – have not directly addressed whether counsel’s consent suffices but have held that the litigant’s waiver must be “voluntary, knowing and intelligent.” Petitioner also argued that the Court should grant cert. to address whether the plain error standard applies, maintaining that, contrary to the Fifth Circuit’s decision, it does not apply.

Opposing certiorari, the government first emphasized that “[n]othing in Peretz suggests that a defendant must state his express personal consent to a magistrate judge’s supervision of voir dire”; indeed, the government argued, “the Court’s opinion indicates that defense counsel’s consent on his client’s behalf if sufficient.” The government acknowledged that the courts of appeals were divided on the issue of consent, but it contended that certiorari was not warranted because the conflict is quite one-sided: only one court – the Eleventh Circuit in Maragh – has reached a contrary result, and that decision is erroneous. In any event, the government concluded, the case would be a bad vehicle to review the question presented because Gonzalez did not object in the district court; his case should thus be reviewed only for plain error, and he cannot show any prejudice from the magistrate’s supervision of voir dire.

On Tuesday, the Court announced that it had granted certiorari in Gonzalez v. US, limited to two questions: “1) Must a federal criminal defendant explicitly and personally waive his right to have an Article III judge preside over voir dire? 2) Did the court of appeals err when it reviewed petitioner’s objection for plain error?”

The case will likely be heard in either January or February.