United States v. Juliet Maragh, 189 F.3d 1315, 11th Cir. (1999)

189 F.3d 1315 (11th Cir.
1999)
UNITED STATES of America, Plaintiff-Appellee,

v.
Juliet MARAGH, Defendant-Appellant.
No. 98-4562.
United States Court of Appeals,

Eleventh Circuit.
Sept. 21, 1999.
Appeal from the United States District Court for the Southern District of
Florida. (No. 97-CR-677-DLG), Donald L. Graham, Judge.
Before BARKETT, Circuit Judge, and RONEY, Senior Circuit Judge.*
SUPPLEMENTAL OPINION ON PETITION FOR REHEARING
PER CURIAM:
In United States v. Maragh, 174 F.3d 1202 (11th Cir.1999), we held that in
order to give a magistrate judge the authority to conduct voir dire of the jury in
a criminal case, the consent of the defendant must be reflected in the record.
We adhere to that decision except to the extent that it indicated we were
applying the plain error standard of review.
Upon further consideration, we have examined the question of whether this

decision could be made in this case in view of the fact that there was no
objection to the conduct of voir dire by the magistrate judge in this case. We do
not repeat here the parts of the opinion that serve as a backdrop for this
supplemental opinion. The failure to object here raises two issues: first,
whether the plain error standard of review bars relief to the defendant on this
appeal; and second, whether the failure to object is sufficient to give the
magistrate judge the authority to conduct the voir dire.
The plain error argument goes like this: no objection was made to the
procedure in the district court; this court can reverse only if there was plain
error; there can be no plain error in this case because there is no settled law that
consent by the defendant's counsel, without the record reflecting that it was
also the consent of the defendant, was insufficient to authorize the magistrate
judge to proceed with the voir dire. Thus, the argument is that even if we are
right as to what the record must show, the defendant cannot get relief in this
case because that was not clear law, and therefore not plain error.
4
We reject this argument following the lead of the United States Supreme Court
in Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808
(1991). The only difference between that case and this one is that there the
record clearly reflected that the defendant, not just counsel, consented to the
conduct of the voir dire by the magistrate judge. In that case, however, as here,
there was no objection to the conduct of the voir dire by the defendant or his
counsel. Not only had there been no decision on whether the consent of the
defendant was sufficient, but the Supreme Court had directly held two years
before that a magistrate judge did not have jurisdiction to conduct jury voir dire
in a felony trial. See Gomez v. United States, 490 U.S. 858, 873-76, 109 S.Ct.
2237, 104 L.Ed.2d 923 (1989). Nevertheless, the Court addressed the merits of
the argument and held that as long as a defendant consented, a magistrate
judge, rather than an Article III judge, could conduct voir dire in a felony case
under 28 U.S.C. 636(b)(3). See Peretz, 501 U.S. at 935-36, 111 S.Ct. 2661. "In
sum, the structure and purpose of the Federal Magistrates Act convince us that
supervision of voir dire in a felony proceeding is an additional duty that may be
delegated to a magistrate judge under 28 U.S.C. 636(b)(3) [28 U.S.C.S. 636(b)
(3) ], if the litigants consent." Peretz, 501 U.S. at 935, 111 S.Ct. 2661 (footnote
omitted). This is a decision that would not have been considered if the plain
error standard of review had been applied.
Justice Scalia endorsed this procedure in a dissent by reasoning that the only
way this issue would ever be presented for review is when there is no
objection. We quote Justice Scalia at length because it specifically sets forth
the rationale for not strictly applying the plain error standard of review in this
case.
As a general matter, of course, a litigant must raise all issues and objections at
trial. See Freytag v. Commissioner, 501 U.S. 868, 894-895, 111 S.Ct. 2631,
2646-2647, 115 L.Ed.2d 764 (SCALIA, J., concurring in judgment). For
criminal proceedings in the federal courts, this principle is embodied in Federal
Rule of Criminal Procedure 51, which requires "a party, at the time the ruling
or order of the [trial] court is made or sought, [to] mak[e] known to the court
the action which that party desires the court to take or that party's objection to
the action of the court and the grounds therefor."
Rule 51's command is not, however, absolute. One of the hoariest precepts in
our federal judicial system is that a claim going to a court's subject-matter
jurisdiction may be raised at any point in the litigation by any party. See
Freytag, 501 U.S. at 896, 111 S.Ct. at 2648 (SCALIA, J., concurring in
judgment). Petitioner seeks to invoke that exception here, relying on our
statement in Gomez that the Magistrate lacked "jurisdiction to preside" over the
voir dire in that case, 490 U.S. at 876, 109 S.Ct. at 2248. But, as Judge
Easterbrook has aptly observed, " 'jurisdiction' ... is a many-hued term.' "
United States v. Wey, 895 F.2d 429, 431(7th Cir.), cert. denied, 497 U.S. 1029,
110 S.Ct. 3283, 111 L.Ed.2d 792 (1990). We used it in Gomez as a synonym
for "authority," not in the technical sense involving subject-matter jurisdiction.
The judgment here is the judgment of the District Court; the relevant question
is whether it had subject-matter jurisdiction; and there is no doubt that it had.
The fact that the court may have improperly delegated to the Magistrate a
function it should have performed personally goes to the lawfulness of the
manner in which it acted, but not to its jurisdiction to act.
This venerable exception to the contemporaneous-objection rule being

inapplicable here, petitioner plainly forfeited the right to advance his current
challenges to the Magistrate's role. In certain narrow contexts, however,
appellate courts have discretion to overlook a trial forfeiture. The most
important of these is described in Federal Rule of Criminal Procedure 52(b): In
criminal cases, an appellate court may notice "errors or defects"not brought to
the attention of the trial court if they are "plain" and "affec[t] substantial
rights." See United States v. Young, 470 U.S. 1, 15, and n. 12, 105 S.Ct. 1038,
1046, and n. 12, 84 L.Ed.2d 1 (1985). Petitioner's contention that this case falls
into that exception comes up against our admonition that Rule 52(b) applies
only to errors that are obvious as well as significantly prejudicial. See, e.g.,
United States v. Frady, 456 U.S. 152, 163, and nn. 13, 14, 102 S.Ct. 1584,
1592, and nn. 13, 14, 71 L.Ed.2d 816 (1982). The error alleged here was
anything but obvious. At the time this case was tried, the Second Circuit had
held that a magistrate was authorized to conduct felony voir dire even if the
defendant objected, see United States v. Garcia, 848 F.2d 1324 (1988), rev'd
sub nom. Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d
923 (1989). No Circuit had held that it was error for a magistrate to conduct
voir dire where the defendant consented. Perhaps the best indication that there
was no "plain" error, of course, is that five Justices of this Court today hold that
there was no error at all.
Even when an error is not "plain," this Court has in extraordinary circumstances
exercised discretion to consider claims forfeited below. See, e.g., Glidden Co.
v. Zdanok, 370 U.S. 530, 535-536, 82 S.Ct. 1459, 1464-1465, 8 L.Ed.2d 671
(1962) (opinion of Harlan, J.); Grosso v. United States, 390 U.S. 62, 71-72, 88
S.Ct. 709, 715, 19 L.Ed.2d 906 (1968); Hormel v. Helvering, 312 U.S. 552,
556-560, 61 S.Ct. 719, 721-723, 85 L.Ed. 1037 (1941). In my view, that course
is appropriate here. Petitioner's principal claims are that the Federal
Magistrates Act does not allow a district court to assign felony voir dire to a
magistrate even with the defendant's consent, and that in any event the consent
here was ineffective because given orally by counsel and not in writing by the
defendant. By definition, these claims can be advanced only by a litigant who
will, if ordinary rules are applied, be deemed to have forfeited them: A
defendant who objects will not be assigned to the magistrate at all. Thus, if we
invariably dismissed claims of this nature on the ground of forfeiture, district
courts would never know whether the Act authorizes them, with the defendant's
consent, to refer felony voir dire to a magistrate, and, if so, what form the
consent must take. Cf. 18 U.S.C. 3401(b) (defendant's consent to magistrate in
misdemeanor trial must be in writing).
10
Given the impediments to the proper assertion of these claims, I believe we are
justified in reaching the statutory issue today to guide the district courts in the
future performance of their duties. It is not that we must address the claims
because all legal questions require judicial answers, cf. Valley Forge Christian
College v. Americans United for Separation of Church and State, Inc., 454 U.S.
464, 489, 102 S.Ct. 752, 767, 70 L.Ed.2d 700 (1982); Webster v. Doe, 486 U.S.
592, 612-613, 108 S.Ct. 2047, 2058-2059, 100 L.Ed.2d 632 (1988) (SCALIA,
J., dissenting), but simply that the relevant rules and statutes governing
forfeiture, as we have long construed them, recognize a limited discretion which
it is eminently sensible to exercise here.
11
Peretz, 501 U.S. at 953-55, 111 S.Ct. 2661(footnote omitted).
12
The Supreme Court has consistently endorsed appellate jurisdiction to consider

fundamental judicial administration without regard to the contemporaneous
objection rule. In Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8
L.Ed.2d 671 (1962), which involved a challenge to what petitioners claimed
was an Article I judge (Court of Claims) performing an Article III function
(sitting by designation on the U.S. Court of Appeals), the Court reached the
issue despite its not having been raised below. It stated that
13
[W]hen the statute claimed to restrict authority is not merely technical but
embodies a strong policy concerning the proper administration of judicial
business, this Court has treated the alleged defect as "jurisdictional" and agreed
to consider it on direct review even though not raised at the earliest practicable
opportunity.
14
Glidden, 370 U.S. at 535-36, 82 S.Ct. 1459.
15
The Petition for Rehearing of the United States makes two arguments that
would, on the merits, require an affirmance of the conviction insofar as the
conduct of the jury voir dire by the magistrate judge is concerned. First, it is
argued that the consent of counsel for the defendant is sufficient to comply with
the mandate of Peretz, and that the defendant is bound by that consent. Second,
it is argued that the failure of the defendant to object to the voir dire by the
magistrate judge constituted a waiver of the right to have an Article III judge
preside over jury selection. In respect to these arguments, we adhere to our
prior opinion, holding that the record must reflect the consent of the defendant
herself.
16
The Petition for Rehearing is DENIED.
NOTES:
*
This decision is rendered by a quorum, due to the retirement of then-Chief

Judge Hatchett on May 14, 1999. See 28 U.S.C. 46(d).

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189 F.3d 1315 (11th Cir.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

Upon further consideration, we have examined the question of whether this

This venerable exception to the contemporaneous-objection rule being

Peretz, 501 U.S. at 953-55, 111 S.Ct. 2661(footnote omitted).

The Supreme Court has consistently endorsed appellate jurisdiction to consider

Glidden, 370 U.S. at 535-36, 82 S.Ct. 1459.

The Petition for Rehearing is DENIED.

This decision is rendered by a quorum, due to the retirement of then-Chief

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