Fifth Circuit Discusses Circuit Split Re: What Demonstration of Consent is Required to Delegate Jury Selection

Per United States v. Gonzalez, --- F.3d ----, 2007 WL 949710 (5th Cir. Mar. 30, 2007):

[I]n Peretz v. United States, 501 U.S. 923 (1991), the Court held that under some circumstances, when the defendant does not object, voir dire is one of the Article III duties that may be delegated. Id. at 940, 111 S.Ct. 2661. . . . Peretz did not clearly address whether the magistrate judge must obtain the defendant's affirmative consent before conducting voir dire and, if so, whether the defendant must consent personally or whether counsel's consent is binding. The ambiguity in Peretz has led to a circuit split on what demonstration of consent is required to delegate jury selection. This appears to be a question of first impression for our court.

Gonzalez relies heavily on the Eleventh Circuit decision in United States v. Maragh, 174 F.3d 1202 (11th Cir.1999), which presented a factual scenario similar to this case. Prior to conducting jury selection, the magistrate judge said, "I am here to select a jury and everybody has agreed to me selecting the jury for Judge Graham. Is that correct?" Both the defense attorney and the Government attorney agreed. Id. at 1204. A divided panel found that it was "unclear whether counsel's response to the magistrate judge's question represented the defendant's consent" and remanded to the district court for a factual finding on this question. Id. at 1205. The court then held "prospectively, under [its] supervisory powers ..., that henceforth it will be error for a magistrate to conduct voir dire in a felony case unless the record clearly shows that the defendant has knowingly consented to such procedure." Id. at 1207. The Eleventh Circuit appears to be alone in having reached the conclusion that the defendant's personal consent is required for the delegation of jury selection to be constitutionally valid. The First Circuit, in contrast, has held that the delegation of voir dire is permissible unless the defendant objects. Failure to object constitutes a waiver. United States v. Desir, 273 F.3d 39, 44 (1st Cir.2001). The Seventh Circuit has held that absent an objection, it is not plain error for a magistrate to conduct jury selection in a felony trial. United States v. Jones, 938 F.2d 737, 744 (7th Cir.1991). The Ninth Circuit has not directly addressed jury selection but, relying on Peretz, has held that some form of affirmative consent is required before a magistrate judge may poll the jury. United States v. Gomez-Lepe, 207 F.3d 623, 631 (9th Cir.2000). Similarly, the Eighth Circuit has found that some form of consent is required before a magistrate judge may supervise jury deliberations. Harris v. Folk Construction Co., 138 F.3d 365, 369-70 (8th Cir.1998).

Given the unsettled state of the law interpreting Peretz, and given that this court has never decided what level of consent is required (if any), it is difficult to see how Gonzalez could demonstrate that the delegation of jury selection constituted a plain error. Even if, however, we were to review under a less stringent standard, Peretz still provides little support for the position Gonzalez adopts. The fact pattern in Peretz, in which the delegation was found to be permissible, is almost identical to that in the instant case. Furthermore, there is no indication that the Court found the absence of specific consent by the defendant to be a dispositive, or even relevant consideration. No court other than the Maragh panel of the Eleventh Circuit has reached the outcome Gonzalez proposes, and the debate among the other circuits appears to turn on whether affirmative consent is required at all, not on what form this consent must take. . . .

In sum, there is no error here; the right to have an Article III judge conduct voir dire is one that may be waived through the consent of counsel.