United States v. Lois E. Hilton Ford

824 F.2d 1430, 1987 U.S. App. LEXIS 11276, 56 U.S.L.W. 2136

Opinions

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Today the government argues that Congress intended by the Federal Magistrates Act to grant to judges of United States District Courts authority to delegate to a magistrate as an “additional duty” the power to preside over the selection of the jury in felony cases. Given the grave constitutional questions such a construction would pose and the history and structure of the legislation creating the office of United States Magistrates, we are not persuaded of such congressional purpose.

We hold that the district court erred in allowing a magistrate to preside over jury selection. Neither the government nor the defendant objected to the substitution of the magistrate, however. Persuaded that the error was harmless beyond reasonable doubt and that the trial was fundamentally fair, we affirm the conviction.

I

A

Lois Ford was convicted by a federal jury in Fort Worth, Texas, of stealing government property. The government proved that Ford and others bid for surplus vehicles offered for sale by General Services Administration and gave worthless checks in payment.

She appealed, attacking her conviction on three grounds. She argued that the district court erred in directing the magistrate to preside over jury selection, that the evidence was insufficient that any concealed facts were material, and that the trial proof varied from the indictment.

A panel of this court affirmed, rejecting all of Ford’s contentions.¹ The panel found that the congressional grant to district judges of the power to give to magistrates additional duties, not inconsistent with other law or the Constitution, included the power to direct magistrates to preside over jury selection in felony cases; that such delegation violated no law and was constitutional.² We took the case en banc,³ and today reinstate the panel opinion in all respects except its treatment of the role of the magistrate in jury selection.

B

A United States Magistrate presided over the selection of the jury, which took some four hours despite the routine nature of the charges. The magistrate first sum--marized the indictment for the venire, introduced all counsel, and then personally interrogated each member of the venire. He gave a substantially complete jury charge, explaining the burden of proof in a criminal case, the presumption of innocence, the right of an accused not to testify, that statements and arguments of lawyers are not evidence, that objections of lawyers are to be disregarded, the nature of circumstantial evidence including, a metaphor about wet grass, the judging of witness credibility, that jurors were not to communicate with others about the case, and the sequence of proof in a criminal case. Finally, the magistrate charged the venire not to read about the case or undertake research on its own. At this juncture, he allowed counsel to question the panel, then set the number of peremptory challenges — twelve strikes to be exercised jointly.

The selection was not free of difficulty. Ms. Demerson, a member of the venire, expressed “mixed feelings.” She explained, “[W]hen you said circumstantial evidence and things, my son was killed in October [an apparent robbery victim eleven months earlier], and the evidence that they gave me, it happened isn’t clear in my mind, and I still have doubts about it.... [H]e was killed in process of robbery, and the answers that they gave me has been two different sets of answers....” When the prosecutor asked whether she could accept direct and circumstantial evidence, she replied, “I think I could.” After some exchanges, the magistrate rejected a defense challenge for cause.

The magistrate seated the selected jurors with two alternates in the jury box and excused the rest of the venire. After again instructing the jury not to discuss the case, he explained when the district judge planned to start the trial and instructed them to report to the jury room on that day.

While the local rules of the Northern District of Texas provide that a magistrate can preside over jury selection “with consent of the parties and the District Judge,”⁴ the rules make no explicit provision for review of any of the magistrate’s rulings during voir dire, but provide generally that when reviewing non-dispositive rulings:

No ruling of a magistrate in any matter which he is empowered to hear and determine shall be reversed, vacated or modified on appeal unless the district judge shall determine that the findings of the magistrate are clearly erroneous, or that the magistrate’s ruling is contrary to law or constitutes an abuse of discretion.⁵

Neither the government nor defense counsel either expressly consented or objected to the magistrate’s presiding over jury selection. The district judge was not available until two days after the petit jury had been carved from the venire. There was no attempt to obtain review by the district judge of the magistrate’s rulings and in particular his rejection of the defense challenge for cause of Ms. Demerson.

II

The Magistrates Act of 1968⁶ abolished the system of United States Commissioners, replacing it with a system of United States Magistrates. The Act required that all magistrates be attorneys if possible, eliminated the “anachronistic fee system of compensation,” gave magistrates a secure eight-year term, and expanded their jurisdiction.⁷

Section 636 of the Act, which defined magistrates’ powers, empowered magistrates to try petty criminal offenses, generating considerable debate over whether magistrates could do so consistently with article III.⁸ Chief Justice Burger noted that the Judicial Conference of the United States objected to § 636 in its entirety, “fearing it so broad as to be subject to constitutional attack.”⁹ Throughout the debate, there was no suggestion that, the Act authorized magistrates to conduct the trial of other than petty offenses. The implicit assumption was that magistrates presiding over the trial of felonies was not envisioned, to a certainty — despite the presence of the additional duty language now said to allow magistrates to preside over jury selection in felony cases.¹⁰

The Magistrates Act was not changed in any relevant way until 1976. In 1974, the Supreme Court held that magistrates could not conduct evidentiary hearings in a petition for federal habeas corpus filed by a state prisoner because it was “inconsistent with the ... laws of the United States” within the meaning of the Federal Magistrates Act.¹¹ More specifically, the court held that the Habeas Corpus Act as consolidated into 28 U.S.C. § 2243 required decisions by an article III judge. But the Court did not rest there, explaining, “We conclude further that [Local Rule 16] is to that extent invalid because, as we construe § 636(b), that section itself precludes district judges from assigning magistrates the duty of conducting evidentiary hearings.” ¹²

Two years later, Congress, in response to Wingo, amended the Magistrates Act to clarify that a magistrate

shall serve as an officer of the court in disposing of minor and petty criminal offenses, in the preliminary or pretrial processing of both criminal and civil cases, and in hearing dispositive motions and evidentiary hearings when assigned to the magistrate by a judge of the court.¹³

This 1976 amendment revised the magistrates’ powers into four parts,¹⁴ providing in the first that a judge can designate a magistrate “to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, [and] to suppress evidence in a criminal case — ”¹⁵ Significantly, Congress provided that a judge may reconsider the matters referred under this grant “where it has been shown that the magistrate’s order is clearly erroneous of contrary to law.” ¹⁶

In this new first part, Congress also allowed district judges to designate magistrates “to conduct hearings, including evi-dentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations ... for any motion.”¹⁷ Finally it detailed a system by which “[a] judge of the court shall make a de novo determination of those portions of the [magistrate’s] report ... to which objection is made.”¹⁸

In the second part, Congress gave to district judges the power to appoint a special master to serve in civil cases upon consent of the parties.¹⁹

Congress retained the additional duty provision from the Magistrates Act of 1968 as the third part without relevant change in language and without mentioning either the mechanics or the standard for review by a judge of any additional duty assigned to a magistrate.²⁰ Intending that courts be innovative in their use of magistrates, Congress suggested that “district courts would remain free to experiment in the assignment of other duties to magistrates which may not necessarily be included in the broad category of ‘pretrial matters.’ ”²¹ However, this legislative entreaty was in a quest for “increased time available to judges for the careful and unhurried performance of their vital and traditional adjudicatory duties.”²²

Finally, Congress in the fourth part detailed for the first time procedures and circumstances under which magistrates could, with the consent of the parties, try civil cases.²³

Ill

In its consideration of the Magistrates Act of 1968 and its amendment in 1976, Congress was wary of the strictures of article III and the demands of due process. That sensitivity proved to be well-founded. The 1976 amendment granting district judges the power to delegate to magistrates the determination of dispositive motions, such as motions to suppress, was promptly challenged, reaching the Supreme Court in 1980.²⁴ Congress had carefully provided for de novo determination by district judges of proposed rulings on disposi-tive motions, convinced that this superintendence resolved any article III concerns. A divided court in Raddatz agreed. Three justices dissented, with Justices Blackmun and Powell writing special concurrences. The dividing issue was whether judicial superintendence essential to article III placement of judicial power required that a district judge hear the evidence anew when a challenged ruling on a dispositive motion turned on credibility findings. Four justices thought such review essential. In any event, there was no disagreement that congressional concern over the limiting force of article III prompted the detailing of review procedures for pretrial disposi-tive motions in criminal cases.

The Raddatz majority responded to the observation that such pretrial decisions can be just as determinative as many trial rulings by emphasizing the difference between pretrial and trial proceedings. In distinguishing pretrial from trial matters the Raddatz majority observed that the “Court on other occasions has noted that the interests at stake in a suppression hearing are of a lesser magnitude than those in criminal trial itself”²⁵ and pointed out that “[a] defendant who has not prevailed at the suppression hearing remains free to present evidence and argue to — and may persuade — the jury that the confession was not reliable and therefore should be disregarded.” ²⁶ Justice Marshall, with whom Justice Brennan joined, urged that the Act would violate article III and deny due process unless construed to require that an article III judge hear the testimony anew when credibility was at issue.²⁷ Justice Powell agreed that, in such circumstances, due process would require a fresh hearing.²⁸ Finally, Justice Stewart, joined by Justices Marshall and Brennan, read the Act to require a fresh hearing.²⁹

Raddatz furnishes two relevant insights. First, if Congress intended that magistrates could be assigned the additional duty of presiding over the trial of felony cases, the struggle over petty offenses in the 1968 Act and the concerns over pretrial ruling authority, explicitly provided for, would make no sense. Similarly, if the Court believed that to be the intent of Congress, the Raddatz majority’s effort to distinguish pretrial and trial would be superfluous.

We need not decide whether Congress has the power to allow a district judge to delegate the trial of felony cases to a magistrate. It is sufficient here to simply observe that such a construction would pose grave constitutional issues.³⁰ We are obligated, of course, to read statutes to avoid constitutional difficulty. Relatedly, we insist upon clear congressional expression when the reach of claimed reading provokes issues regarding constitutionally mandated spheres of governmental power. For example, “[T]he Court consistently has required an unequivocal expression that Congress intended to override Eleventh Amendment immunity_”³¹ In short, we do not lightly engage such fundamental issues, but rather we properly avoid them when we may fairly do so. We are then not persuaded that Congress intended to grant to district judges the power to delegate the trial of felony cases themselves.

IV

But of course the defense of a magistrate presiding over jury selection does not rest on the assertion that an additional duty could include presiding over trial of felonies. Rather, it is suggested that jury selection is sufficiently preliminary to the “trial” of a criminal case to escape constitutional concerns and difficulties of statutory construction attending the assertion that an additional duty may include presiding over the trial itself. We reject this effort to separate jury selection and trial for two reasons.

First, we see the selection of the jury as an essential component of the trial itself “because the impartiality of the adjudicator goes to the very integrity of the legal system.” ³² Second, even if viewed as a pretrial matter, the difficulties of review by an article III judge of a magistrate’s rulings in jury selection — and the absence of a statutory procedure for that review in the face of explicit review procedures for other pretrial matters — leaves us unconvinced that Congress intended to allow delegation of this important task.

The selection of a petit jury from a ve-nire is an important part of trial. At common law only the judge could preside over jury selection in felony cases.³³ Its tie to trial is also illustrated by consistent judicial insistence upon its fairness as a component of trial. The Supreme Court has noted the “long and widely held belief that peremptory challenge is a necessary part of trial by jury.”³⁴ Only this past term the Court has attempted to free the selection process of racial bias by prescribing a process for claims that the prosecutor is using peremptory challenges to exclude racial minorities.³⁵ Such concern plainly rejects the view that jury selection is a preliminary and essentially ministerial act. At the least it is an essential instrument to the delivery of a defendant’s constitutionally secured right to a jury trial rooted in the commands of due process, if not the trial guarantees of the sixth amendment and section 2 of article III themselves.

At some point the accusatory process shifts from a fact-gathering and charging phase to its primary task of deciding guilt. It is suggested that this ought to be a floating point that adjusts to the issue. This suggestion gathers strength from the circumstance that double jeopardy does not attach until the jury is sworn. But all other trial protections are in force when jury selection begins. For example jury selection is a part of the trial for purposes of the Speedy Trial Act.³⁶ The rights of the accused to be present, of confrontation, of counsel, and of public proceedings do not await the swearing of the petit jury, but are all enjoyed at the jury selection stage. That defendants enjoy such rights during jury selection ought not be surprising. “Due process implies a tribunal both impartial and mentally competent to afford a hearing,”³⁷ “a jury capable and willing to decide the case solely on the evidence before it.”³⁸

That double jeopardy does not attach until a jury is sworn does not suggest that the selection of the petit jury is preliminary. The jeopardy line is an accommodation of the government’s prosecutorial discretion and fact-gathering power and the defendant’s right to be free of double jeopardy. The line represents “the broad perception that the Government’s action has reached the point where its power to retrace its steps must be checked by the ‘countervailing interests of the individual protected by the double jeopardy clause of the fifth amendment.’ ”³⁹

In Press-Enterprise, the Court unanimously rejected the argument that jury selection is sufficiently preliminary and divorced from the trial’s search for truth that it need not be open. The Court explained that “[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system.”⁴⁰ The Court traced the history of jury selection noting its open character, from trials as early as the Norman Conquest. Of course, Press-Enterprise was an explication of first amendment rights. But our point is that jury selection is and has been regarded as a critical part of trial; that the line between preliminary and trial issues is not etched in one place for all purposes does not suggest otherwise.

Second, if seen as a preliminary matter, the superintendence by an article III judge of the magistrate’s handling of jury selection would be difficult at best. While the Raddatz majority did not insist that a district judge personally hear disputed testimony, it did insist an article III judge have the right of de novo review — plenary power to reject findings and insist on a new evi-dentiary hearing. But, surely such power must be real and not illusory. Review of a trial judge’s rulings on challenges to veniremen is difficult at best, as illustrated by our experience in administering the standards of Witherspoon v. Illinois.⁴¹ Witherspoon set the measure for veniremen’s views regarding the death penalty in capital cases. The lower courts, including this court, read Witherspoon to require de novo review of a state trial judge’s rulings on challenges made in the course of jury selection. This proved to be a difficult task.⁴²

In Wainwright v. Witt, ⁴³ the Court rejected the de novo standard in favor of the presumption of correctness standard of 28 U.S.C. § 2254(d) (fairly supported by the record). The Court noted the difficulties of such a de novo standard, concluding that “deference must be paid to the trial judge who sees and hears the juror.”⁴⁴ It pointed to Reynolds v. United States,⁴⁵ in which the Court observed:

[T]he manner of the juror while testifying is often times more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case.⁴⁶

The Wainwright court also rejected the suggestion that a trial judge must make explicit findings in ruling on challenges for cause, recognizing the unique importance of sight and sound in the nigh intuitive judgments of a trial judge’s rulings in the course of voir dire⁴⁷ Squaring this difficulty with Raddatz’ s insistence upon superintendence by an article III judge poses problems. An effort to engage in de novo review would be difficult and often impossible. Of course, we might conclude that a district court has the inherent power simply to conduct the voir dire a second time. But putting aside that such duplicative effort frustrates the very efficiency claims made in its support, such a power also faces serious practical problems in jury selection. The second voir dire or rehearing of testimony may never capture the original scene, and carrying a challenged venireman to a second interrogation before the district judge would be a delicate exercise at best.⁴⁸ Unlike dispositive pretrial motions, there is no opportunity to convince the jury afresh at trial.

This absence of statutorily-prescribed review gains no comfort by finding inherent power to review by a constitutionally adequate standard, because such a savings exercise fails to respond to the inquiry into congressional purpose — a purpose illuminated by the failure of Congress to detail a standard or process for review despite the demonstrated view of its importance. The relevant point is we ought not lightly attribute to Congress the purpose to enter this thicket with no provision for review, whether or not these practical problems might be surmounted.

V

Three circuits have decided cases in which a magistrate presided over voir dire, but have disposed of the issue on the parties’ failure to object. Only the Ninth Circuit has upheld the magistrate’s presiding over voir dire on grounds of adequate article III control and efficiency.

In Haith v. United States,⁴⁹ the Third Circuit held that the judge’s absence from the courtroom during jury selection in a criminal case was not error because the parties failed to object and because the defendant alleged no prejudice from the judge’s absence.⁵⁰ The court reached its holding despite the absence of a stenographic record of voir dire to allow review.

The First Circuit in United States v. Rivera-Sola,⁵¹ upheld a magistrate’s presiding over voir dire, jury selection and preliminary instructions because the defendant failed to object. In dicta the court added, “We think that a magistrate can effectively conduct the voir dire and preside at the selection of juries in civil and criminal cases....” ⁵² Interestingly, the court indicated that preliminary instructions were an important part of the trial and should be handled by the judge, presumably on the assumption that instructions are not important to voir dire⁵³ — an assumption belied by the events of this case in which Ms. Demerson’s views were exposed by the instruction on circumstantial evidence.

The Second Circuit in United States v. DeFiore,⁵⁴ also upheld a magistrate’s presiding over voir dire because the defendant failed to make a contemporaneous objection to the action, thus waiving his claim to an article III court for jury selection.

The Ninth Circuit in two cases has addressed the validity of a magistrate’s presiding over voir dire. In United States v. Bezold,⁵⁵ the court upheld the magistrate’s actions even though the defendant in the criminal case timely objected. The decision found review and control in the district court adequate because (a) the judge could receive the transcript of voir dire, (b) the judge could observe the panel at trial, and (c) the judge had wide discretion to disqualify jurors after the trial began.⁵⁶ Lacking evidence of actual prejudice, the court affirmed the conviction.

In United States v. Peacock,⁵⁷ the Ninth Circuit upheld the delegation of jury selection to a magistrate under § 636(b)(3), imported a requirement of de novo review to avoid constitutional problems, and implicitly said that the conduct of voir dire is not an inherently judicial function even though it constitutes a “significant element of a criminal trial.”⁵⁸ Finally, the court noted that the procedure may promote more rapid and efficient jury selection.⁵⁹

None of these decisions faced the necessity of treating voir dire as a preliminary rather than as a part of trial; and significantly, none explained the necessity of the balance of the 1976 amendment if “additional duty” could carry its now claimed power. Moreover, none of the decisions expressed serious concern over the constitutionality of such acts. With respect, we see voir dire in a different light — of greater importance. The trial lawyer knows that who decides the truth from the evidence may be as important as the evidence. The process of selecting the persons to hear the evidence inevitably introduces the trial players to the jury and itself triggers the decisional process. We have secured the rights to the selection process as an essential part of trial by jury and struggled to eliminate bias in its function.

It is then difficult to view jury selection as fit for delegation to magistrates as part of a congressional effort to free judges for performance of their “traditional adjudicatory duty.” Rather, we see jury selection as such an integral component of trial that we are not persuaded that Congress envisioned its delegation to magistrates.

It is suggested that the sole limit of the congressional grant, by the additional duty section, of the power to delegate is that the delegation not violate another law or the Constitution. But as we have explained, such a broad reading of congressional purpose would render superfluous the balance of the statute. By that reading, the additional duty language was all that was necessary. Fairly read in context, Congress never intended that this language swallow all that preceded it. Additional duty is a residuum, granting the power to delegate any task not otherwise forbidden after we carve away that congery of duties that Congress never envisioned would be delegated. We are not persuaded that Congress intended to grant authority to judges to delegate to magistrates the authority to preside over felony trials and over activities integral to and intimately tied with trial.

Simply put, whatever the power of Congress may be, we are not persuaded that Congress intended that “additional duty” include presiding over jury selection in felony cases. The district court erred in allowing the magistrate to preside over the selection of the jury. But because Lois Ford did not object and because the trial was fundamentally fair, we AFFIRM.⁶⁰

1 . United States v. Ford, 797 F.2d 1329, 1335 (5th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 964, 93 L.Ed.2d 1011 (1987).

2 . Id. at 1330-33.

3 . United States v. Ford, 811 F.2d 268, 269 (5th Cir.1987).

4 . N.D.Tex.R. 2(f)(5).

5 . N.D.Tex.R. 4(b)(2).

6 . 1968 U.S.Code Cong. & Admin.News 1280 (current version at 28 U.S.C. §§ 631-639).

7 . H.R.Rep. No. 1629, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 4252, 4254.

8 . See, e.g., id., reprinted in 1968 U.S.Code Cong. & Admin.News at 4266-70 (dissenting views of Mr. Cahill).

9 . Wingo v. Wedding, 418 U.S. 461, 484, 94 S.Ct. 2842, 2855, 41 L.Ed.2d 879 (1974) (Burger, C.J., dissenting).

10 . Section 636(b) of the 1968 Act provided:

Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States (emphasis supplied).

The Act also provided that:

The additional duties authorized by rule may include, but are not restricted to—

(1) service as a special master in an appropriate civil action ...;

(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and

(3) preliminary review of application for posttrial relief.

28 U.S.C. § 636(b) (amended 1976).

11 . Wingo, 418 U.S. at 472, 94 S.Ct. at 2849.

12 . Id. (emphasis supplied). The Court looked to the legislative history and concluded that Congress did not intend in the 1968 Act that magistrates conduct evidentiary hearings. It rejected the suggestion that evidentiary hearings could be assigned under the language of additional duty.

It is then plain that "additional duty" has never been seen as a primary grant of power. As we explain, Congress responded to Wingo by adding a new section. It did not change the additional duty language.

13 . H.R.Rep. No. 1609, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Admin. News 6162, 6165.

14 . Section 636(b) provides:

(1)Notwithstanding any provision of law to the contrary—

(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.

(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subpara-graph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.

(C) the magistrate shall file his proposed findings and recommendations under subpar-agraph (B) with the court and a copy shall forthwith be mailed to all parties.

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

(2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts.

(3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.

(4) Each district court shall establish rules pursuant to which the magistrates shall discharge their duties.

15 . 28 U.S.C. § 636(b)(1)(A).

16 . Id.

17 . 28 U.S.C. § 636(b)(1)(B).

18 . 28 U.S.C. § 636(b)(1).

19 . 28 U.S.C. § 636(b)(2).

20 . 28 U.S.C. § 636(b)(3).

21 . H.R.Rep. No. 1609, 94th Cong., 2d Sess. 12, reprinted in 1976 U.S.Code Cong. & Admin. News 6162, 6172.

²²

23 . 28 U.S.C. § 636(c).

24 . United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

25 . Id. at 679, 100 S.Ct. at 2414.

26 . Id. at 678, 100 S.Ct. at 2413-14 (footnote omitted).

27 . Id. at 694-95, 100 S.Ct. at 2422 (Marshall, J., dissenting).

28 . Id. at 686, 100 S.Ct. at 2418 (Powell, J., concurring in part and dissenting in part).

29 . Id. at 692, 100 S.Ct. at 2420 (Stewart, J., dissenting).

30 . See generally Geras v. Lafayette Display Fixtures, 742 F.2d 1037, 1045 (7th Cir.1984) (Pos-ner, J., dissenting); see also Comment, The Boundaries of Article III: Delegation of Final Decisionmaking Authority to Magistrates, 52 U.Chi.L.Rev. 1032 (1985); Comment, Is the Federal Magistrate Act Constitutional After Northern Pipeline? 1985 Ariz.St.L.J. 189.

31 . Welch v. State Dep’t of Highways & Pub. Transp., — U.S. -, -, 107 S.Ct. 2941, 2948, 97 L.Ed.2d 389 (1987) (citation omitted).

32 . Gray v. Mississippi, — U.S. -, -, 107 S.Ct. 2045, 2056, 95 L.Ed.2d 622 (1987).

33 . 4 William Blackstone, Commentaries *353.

34 . Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965).

35 . See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); see also H.R. Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 1792 (discussing the Jury Selection and Service Act of 1968).

36 . 18 U.S.C. §§ 3161-3174.

37 . Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038 (1912).

38 . Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).

39 . Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509 n. 8, 104 S.Ct. 819, 823 n. 8, 78 L.Ed.2d 629 (1984) (quoting United States v. Velazquez, 490 F.2d 29, 34 (2d Cir.1973)); see also Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

40 . Id. at 505, 104 S.Ct. at 821.

41 . 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

42 . See, e.g., O’Bryan v. Estelle, 714 F.2d 365 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984).

43 . 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). "[T]he Witkerspoon-Witt standard is rooted in the constitutional right to an impartial jury_" Gray v. Mississippi, — U.S. at -, 107 S.Ct. at 2056.

44 . Wainwright, 105 S.Ct. at 853.

45 . 98 U.S.(8 Otto) 145 (1879).

46 . Wainwright, 105 S.Ct. at 854 n. 9 (quoting Reynolds, 98 U.S.(8 Otto) at 156-57).

47 . Id., 105 S.Ct. at 855.

48 . "[T]he nature of the jury selection process defies any attempt to establish that an erroneous Witherspoon-Witt exclusion of a juror is harmless.” Gray v. Mississippi, — U.S. at -, 107 S.Ct. at 2055.

49 . 342 F.2d 158 (3d Cir.1965) (per curiam).

50 . Id. at 159.

51 . 713 F.2d 866 (1st Cir.1983).

52 . Id. at 874.

⁵³

54 . 720 F.2d 757, 765 (2d Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1684, 80 L.Ed.2d 158 (1984).

55 . 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986).

56 . Id. at 1002.

57 . 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985).

58 . Id. at 1317-19.

59 . Id. at 1319.

60 . Our conclusion that this trial was not fundamentally unfair despite the error is n it a suggestion that, with consent of the parties, there is no error. Trusting that district judges will abide this decision, we have no occasion to exercise our supervisory jurisdiction to prevent repetition.