UNITED STATES OF AMERICA, PETITIONER V. DARLINA K. FRANCE No. 89-1363 In The Supreme Court Of The United States October Term, 1989 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Question Presented Opinion below Jurisdiction Rules involved Statement Reasons for granting the petition Conclusion OPINION BELOW The opinion of the court of appeals (App., infra, 1a-12a) is reported at 886 F.2d 223. JURISDICTION The judgment of the court of appeals was entered on September 13, 1989, and a petition for rehearing was denied on January 16, 1990. App., infra, 15a. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). RULES INVOLVED Federal Rule of Criminal Procedure 51 provides: Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes 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; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice that party. Federal Rule of Criminal Procedure 52(b) provides: Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. STATEMENT QUESTION PRESENTED Whether this Court's decision in Gomez v. United States, 109 S. Ct. 2237 (1989), requires reversal of respondent's convictions even though she did not object to a magistrate's conducting voir dire and even though her attorney expressed no objection to the manner in which the jury was selected. TABLE OF CONTENTS After a jury trial in the United States District Court for the District of Hawaii, respondent was convicted of assault with a deadly weapon, in violation of 18 U.S.C. 113(c), assault resulting in serious bodily injury, in violation of 18 U.S.C. 113(f), and use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. 924(c). She was sentenced to five years' imprisonment and three years' probation. 1. On December 20, 1986, respondent became upset with her third husband, Neil, when he knocked over a Christmas tree during an argument in their house on a military reservation in Hawaii. Tr. 29, 44, 164-165. Neil left the house and went to a nearby PX. Tr. 48. Later that day, she told a friend that she was angry at her husband and that she would shoot him if she could find a gun. Tr. 165. She had made similar remarks in the past. Tr. 221. Respondent was drinking beer at home with her friends when Neil returned. Neil was disturbed that respondent was drinking, so he took her beer from the refrigerator and moved it out into the yard. Respondent then chased Neil into the kitchen where they had a loud argument. Tr. 165-168. After the fight, Neil left the house. Respondent, carrying a gun, then emerged from the house and told Neil that he should leave. Tr. 169-170, 316. Neil, however, started to walk back toward the house. Respondent then shot and seriously wounded Neil. Tr. 196. She walked over to him and said in a normal tone of voice, "I told you I would do it." Tr. 211. When a military policeman arrived on the scene, respondent told him: "He threw the Christmas tree down and that made me mad, but he took my beer and that was the last straw." Tr. 352-353. Respondent admitted at trial that she had also fired a gun at her first husband, and that she had boasted of shooting at her second husband. Tr. 311, 328. 2. Prior to trial, in accordance with what was at that time the regular practice in the District of Hawaii, the district court assigned jury selection to a federal magistrate. Respondent did not object to this assignment, nor did she request that a district judge conduct the voir dire. During voir dire, the magistrate sustained respondent's only objectio to a proposed question submitted by the government. 4/27/87 Tr. 62-63. In addition, the magistrate asked an additional question of the venire at respondent's request. 4/27/87 Tr. 65. At the conclusion of jury selection, the magistrate asked the parties: "For the record, would you like -- is there any objection you'd like to make in the manner in which the jury was selected?" 4/27/87 Tr. 71. Respondent's counsel replied: "No, your honor." Ibid. When the trial began the next day before a district judge, respondent did not object to the magistrate's supervision of jury selection or to any of the magistrate's rulings. The jury found petitioner guilty on all three counts described above. /1/ 3. In her initial brief on appeal, respondent challenged only her firearms conviction under 18 U.S.C. 924(c). She did not raise any issue concerning the selection of the jury by the magistrate. While the appeal was pending, this Court decided Gomez v. United States, 109 S. Ct. 2237 (1989). In Gomez, the Court held that the Federal Magistrates Act, 28 U.S.C. 631-639, does not authorize district courts to delegate jury selection in felony trials to magistrates, and that the selection of a jury by a magistrate is not harmless error if the defendant made a timely objection. In a motion filed in the court of appeals after the Gomez decision, respondent argued for the first time that the district court committed reversible error in delegating jury selection to a magistrate. The court of appeals reversed respondent's convictions. The court first held (App., infra, 7a-8a) that Gomez should be applied retroactively to all cases pending on direct appeal at the time it was decided. /2/ The court then held that respondent had not waived her right to raise the Gomez claim by her failure to object in the district court. The court reasoned that nothing in the Gomez opinion suggests that "the Court intended to limit the broad, definitive rule it announced" to cases, like Gomez, in which the defendant objected. Id. at 9a. The court of appeals held that, in any event, no objection was necessary to preserve the claimed error because two prior decisons of the Ninth Circuit had authorized magistrates to conduct voir dire in felony trials. /3/ App., infra, 9a-10a. Thus, according to the court, respondent faced a "solid wall of circuit authority" that "would have prevented the district court from correcting the alleged error." Id. at 10a. In the court's view, to require a defendant to object to "aspects of the trial that have already been approved by the court of appeals" would encourage "defense counsel to burden district courts with repeated assaults on then settled principles out of hope that those principles will be later overturned." Ibid. (quoting Guam v. Yang, 850 F.2d 507, 512 n.8 (9th Cir. 1988) (en banc)). The Ninth Circuit noted that the "solid wall of circuit authority" exception to the contemporaneous-objection rule had been used only to excuse a defendant's failure to object to a jury instruction. It reasoned, however, that the rule announced in Gomez "touches on one of the most 'basic rights' of the accused, the right to a fair and accurate trial." App., infra, 10a. Thus, the court concluded that it would be "at best unseemly, and at worst irresponsible, to penalize" respondent for failing to object. Ibid. /4/ REASONS FOR GRANTING THE PETITION In Gomez v. United States, the defendants objected to the delegation of jury selection to a federal magistrate. The district court overruled that objection, and the Second Circuit affirmed. This Court granted certiorari to decide whether the assignment of jury selection to a magistrate "without the defendant's consent" violated the Federal Magistrates Act, 28 U.S.C. 631 et seq. See 109 S. Ct. at 2239. The Court held that presiding over jury selection at felony trials is not one of the "additional duties" that may be delegated to magistrates under 28 U.S.C. 636(b)(3). And the Court ruled that such a delegation, over "the defendant's objection," cannot be harmless error. 109 S. Ct. at 2248. Since Gomez, the courts of appeals have struggled with the resolution of direct appeals where the defendant did not object to the magistrate's presiding at voir dire. /5/ The questions arising from Gomez are especially important to the administration of the federal criminal justice system because, prior to Gomez, many district courts frequently delegated jury selection to magistrates. In addition, the circuits have adopted several different approaches to post-Gomez appeals. The Second and Seventh Circuits have held that an objection is required to preserve the Gomez error for review. The Third Circuit has ruled that no objection is needed to preserve the issue, but that there is no error of law in the delegation of jury selection to a magistrate if the defendant consents. And the Ninth Circuit, in this case, has held that defendants raising a Gomez claim are not bound by the general principle that legal issues are forfeited on appeal if not first raised in the district court. We believe that this case is a good vehicle for resolving the important issue whether a defendant's conviction must be reversed under Gomez even though he did not object to the magistrate's presiding at voir dire. 1. The issue presented is important to the federal criminal justice system. Prior to Gomez, 51 district courts had local rules that provided magistrates with the unqualified authority to conduct voir dire in civil and criminal cases. See U.S. Br. at 22-23 & n.17 in Gomez, Nos. 88-5014, 88-5158. Eighteen other districts had rules that allowed magistrates to perform all duties conferred on them by 28 U.S.C. 636, which was often construed to include conducting voir dire. Gomez U.S. Br. at 23 & n.19. Undoubtedly, there are many defendants from all over the country who did not object to a magistrate's conducting voir dire and are thus in the same position as respondent. The Ninth Circuit's decision in this case has particular significance because certain district judges in that circuit routinely referred jury selection to a magistrate. On the basis of its decision in this case, the Ninth Circuit has already reversed the convictions of 15 other defendants. See United States v. Thate, No. 89-10360 (Oct. 18, 1989); United States v. Nguyen, No. 89-10235 (Oct. 18, 1989); United States v. Kaleiwahea, No. 89-10225 (Sept. 29, 1989) (two defendants); United States v. Coppola, No. 89-10214 (Oct. 18, 1989); United States v. Kaili, No. 89-10113 (Sept. 13, 1989); United States v. Kuamsiri, No. 88-1432 (Sept. 13, 1989) (two defendants); United States v. Taylor, No. 88-1442 (Sept. 29, 1989); United States v. Holland, No. 88-1253 (Jan. 2, 1990) (three defendants); United States v. Reb'll, 887 F.2d 1009 (1989); United States v. Nittayanupap, No. 87-1395 884 F.2d 1318 (1988) (two defendants). The United States Attorney for the District of Hawaii filed in the court of appeals a declaration noting that the District of Hawaii had delegated jury selection to magistrates in "virtually all" criminal cases since the mid-1980s. App., infra, 13a. He stated that, if the Ninth Circuit's decision in this case is not overturned, the convictions of 48 defendants in the District of Hawaii alone "will be reversed and remanded for retrial." Ibid. /6/ Thus, we believe that the issue presented in this case, which would affect a large number of criminal convictions in the Ninth Circuit and elsewhere, is sufficiently important to warrant plenary review by this Court. 2. a. The court of appeals erred in not holding that respondent forfeited her right to have a district judge preside over the jury selection at her trial. This Court has emphasized that "(n)o procedural principle is more familiar to (the) Court than that a * * * right may be forfeited in criminal as well as civil cases by failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Yakus v. United States, 321 U.S. 414, 444 (1944). Accord United States v. Frady, 456 U.S. 152, 162 (1982); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239 (1940). This rule regarding the forfeiture of legal claims is embodied in Federal Rule of Criminal Procedure 51. That rule abolished the historic use of "exceptions" to preserve legal claims regarding a trial court's orders or actions. But Rule 51 insists that a party make its objections and desires known to the district court. An error is preserved under the rule only if the party "makes 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." /7/ This Court, of course, has applied the "raise it or forfeit it" rule in many contexts. /8/ For example, in United States v. Gagnon, 470 U.S. 522 (1985), the district court held a conference in chambers without the presence of the defendants. The defendants did not object, but on appeal argued that the district court had violated their right under Federal Rule of Criminal Procedure 43(a) to be present at all stages of a criminal trial. This Court held that the defendants had forfeited their rights under Rule 43 by failing to object at trial. 470 U.S. at 527-528. Likewise, in Levine v. United States, 362 U.S. 610 (1960), the Court ruled that the defendant had forfeited any due process right to a public trial by not asking the district judge to open the courtroom. Id. at 619. See also Segurola v. United States, 275 U.S. 106, 111-112 (1927) (Fourth Amendment challenge to the seizure of evidence forfeited in the absence of a timely motion to suppress); 3A C. Wright, Federal Practice and Procedure Section 842, at 287 (2d ed. 1982) (requirement that defendant object and express his preference applies "to all kinds of rulings at the trial"). The reasons that the defendant must make his views known to the trial court are clear. First, the defendant should not be able to pursue a certain course for tactical reasons and, if convicted, later claim that the course taken by the court was reversible error. See 3 W. LaFave, Criminal Procedure Section 26.5, at 251 (1984); see also Wainwright v. Sykes, 433 U.S. 72, 89 (1977). Second, and perhaps more important, the requirement that the defendant make his views known to the trial court greatly promotes judicial economy. See United States v. Smith, 490 F.2d 789, 794-795 (D.C. Cir. 1974); United States v. Bamberger, 456 F.2d 1119, 1131 (3d Cir. 1972), cert. denied, 413 U.S. 919 (1973); 3 W. LaFave, supra, at 251. If the issue is raised in the trial court, the trial judge may be able to resolve the matter to the defendant's satisfaction. See United States v. Gagnon, 470 U.S. at 529. Or the prosecutor might decide to forgo a particular course of conduct in order to eliminate the possibility of inserting a reversible error into the record. See generally Luce v. United States, 469 U.S. 38, 42 (1984); Wainwright v. Sykes, 433 U.S. at 89. In either case, a contemporaneous objection would eliminate the need for an appellate reversal and a second trial on the same criminal charges. In this case, there are two possible arguments to support respondent's claim that she should be exempt from Rule 51. First, the Ninth Circuit believed that she was not required to express her view regarding jury selection because an objection would have been futile in light of Ninth Circuit precedent. Second, respondent has contended that the failure of the district judge to preside at voir dire was "plain error" under Federal Rule of Criminal Procedure 52(b) and thus may be noticed on appeal. Neither argument has merit. b. The Ninth Circuit held that respondent was not required to express a wish to have a district judge preside at voir dire because, in the court's view, there was a "'solid wall of circuit authority' which would have prevented the district court from correcting the alleged error." App., infra, 10a (quoting Guam v. Yang, 850 F.2d 507, 512 n.8 (9th Cir. 1988)). There is reason to doubt whether "a solid wall of circuit authority" is ever an exception to the requirement that an issue be raised in the district court. Rule 51 does not expressly set out such an exception. And this Court held in Engle v. Issaac, 456 U.S. 107 (1982), that contrary and binding state authority was not a sufficient cause for a defendant's failure to present a constitutional objection to a state court. In holding that the failure to object precluded federal habeas review, the Court stated: (T)he futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial." Id. at 130. Nevertheless, this case does not present the question whether a defendant must make a clearly futile objection to an action of the district court that is mandated by the court of appeals. If there is such an exception, it is surely "very narrow." Guam v. Yang, 850 F.2d at 512 n.8. The exception would apply only in a case where an objection would be pure ritual -- i.e., where the district judge is bound by precedent in his circuit to follow a prescribed course of action. In such a case, none of the reasons underlying Rule 51 would apply because the defendant would not be in a position to make a tactical choice (there would be only one available option) and the trial court would not be free to correct any error (it would be bound by higher precedent). Thus, the courts of appeals that have excused the failure to object on the ground of a "solid wall of circuit authority" have done so in cases in which the trial court's action was compelled. See, e.g., United States v. Liquori, 438 F.2d 663, 665 (2d Cir. 1971); Martone v. United States, 435 F.2d 609, 610-611 (1st Cir. 1970). /9/ In this case, however, the district court's action was not mandated by binding circuit precedent. In United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847 (1985), and United States v. Bezold, 760 F.2d 999 (9th Cir. 1985), cert. denied, 474 U.S. 1063 (1986), the Ninth Circuit held that the Federal Magistrates Act vested district courts with discretion to delegate jury selection to magistrates. Nothing in those decisions hinted that district judges were required to -- or even should -- make such a delegation. Thus, there plainly was not a "solid wall of circuit authority" preventing the district court from conducting jury selection at respondent's trial. Indeed, prior to Gomez there were examples where a district judge in Hawaii would grant a defendant's request that the judge conduct voir dire. See 87-1282 Gov't C.A. Supp. Br. at 6 (referring to United States v. Rewald, Cr. 84-02417 (D. Haw.). /10/ Accordingly, Rule 51 required respondent to "make() known to the court the action" that she desired in order to preserve for appellate review her claim that the district judge should have presided over jury selection. The rationale underlying the rule requiring a litigant to make her preferences known to the trial court is fully applicable in this case. For tactical reasons, a defendant might prefer that a magistrate conduct voir dire. There may be cases in which defense counsel believes that the magistrate would be more willing than a district judge to allow counsel to question prospective jurors. Or a particular defense lawyer might believe that the magistrate's view of qualified jurors is more favorable to the defendant than the district judge's view. In this very case, there are reasons to believe that the defendant was quite happy to have the magistrate preside at voir dire. The magistrate sustained defense counsel's objection to a question proposed by the government, and the magistrate asked an additional question of the venire at respondent's request. Hence, respondent should not be able to remain silent, proceed with jury selection before a magistrate who rules in her favor twice, and later claim that the district court erred in not conducting voir dire itself. In sum, if respondent had wanted the district court to conduct voir dire, she should have said so. Because she did not, this case is exactly like many other cases in which the defendant's silence meant that he forfeited the right on appeal to claim that the district court erred in adopting a particular discretionary choice. See, e.g., United States v. Kirkland, 637 F.2d 654 (9th Cir. 1980) (defendant could not question joinder where he did not move for severance); United States v. Brown, 493 F.2d 485 (5th Cir.) (defendant did not object to dispersal of jury after final argument), cert. denied, 419 U.S. 865 (1974); United States v. Woodner, 317 F.2d 649 (2d Cir.) (defendant failed to object to manner in which jurors' hardship excuses were granted), cert. denied, 375 U.S. 903 (1963). c. Federal Rule of Criminal Procedure 52(b) provides that "(p)lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the (district) court." Respondent has contended that the delegation of jury selection to a magistrate is such a "plain error." /11/ That contention is also without merit. In United States v. Frady, 456 U.S. 152 (1982), the Court held that Rule 52(b) is a narrow exception to the contemporaneous-objection rule -- one that "is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." Id. at 163 n.14. The plain error rule should be used "to correct 'only particularly egregious errors,' those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings.'" United States v. Young, 470 U.S. 1, 15 (1985) (citations omitted). This stringent test for "plain error" applies equally to all errors -- whether founded upon the Constitution, a statute, or rule. See, e.g., id. at 16-17 & n.13; Levine v. United States, 362 U.S. 610, 619 (1960). The courts have consistently held that defendants have forfeited important statutory and constitutional rights in cases in which there was no miscarriage of justice. See, e.g., United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir. 1987) (defendant forfeited claim that he was not brought before magistrate without unnecessary delay); United States v. Bayko, 774 F.2d 516, 517-518 (1st Cir. 1985) (forfeited ex post facto argument); United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir. 1984) (forfeited double jeopardy defense), cert. denied, 472 U.S. 1017 (1985); United States v. Coleman, 707 F.2d 374, 376 (9th Cir.) (forfeited Fifth Amendment claim), cert. denied, 464 U.S. 854 (1983); United States v. Surridge, 687 F.2d 250, 255 (8th Cir.) (forfeited Fourth Amendment objection), cert. denied, 459 U.S. 1044 (1982). /12/ Judged by the high "miscarriage of justice" standard, the district court's delegation of jury selection to a federal magistrate was not plain error in this case. Magistrates in the District of Hawaii had gained substantial experience over the years in presiding at voir dire. The record in this case shows that the magistrate gave routine instructions to the prospective jurors and asked typical questions of the venire. The magistrate gave the parties the number of peremptory challenges allowed under Federal Rule of Criminal Procedure 24. See 4/27/87 Tr. 2. The record also shows that the magistrate sustained respondent's only objection during voir dire, and he asked a question requested by respondent. Respondent's counsel stated that he was satisfied with the manner in which the jury was selected. 4/27/87 Tr. 71. The balance of petitioner's trial was conducted before the district judge, and the evidence of petitioner's guilt was overwhelming. Accordingly, the jury's guilty verdicts did not result in a miscarriage of justice that may be corrected under Rule 52(b). See United States v. Wey, No. 89-2106 (7th Cir. Feb. 15, 1990) (jury selection by magistrate was not plain error); United States v. DeFiore, 720 F.2d 757 (2d Cir. 1983) (same), cert. denied, 466 U.S. 906 (1984); United States v. Rivera-Sola, 713 F.2d 866 (1st Cir. 1983) (same). 3. The courts of appeals have taken divergent approaches to cases in which the defendant did not object to a magistrate's presiding at voir dire. As we have described, the Ninth Circuit in this case held that no objection was necessary to raise the Gomez claim on appeal. The Second Circuit, by contrast, has ruled that it will not reverse convictions where the defendant did not object to the magistrate's role. In United States v. Mang Sun Wong, 884 F.2d 1537 (1989), cert. denied, No. 89-5949 (Feb. 20, 1990), the Second Circuit refused to reverse a defendant's conviction where he had given his "explicit consent" to "the magistrate's selection of a jury." Id. at 1546. /13/ In United States v. Vanwort, 887 F.2d 375 (1989), petitions for cert. pending, Nos. 89-1084, 89-6313, the Second Circuit, without expressly discussing the plain error doctrine, extended its decision in Mang Sun Wong to a case in which the defendants simply failed to object. The Seventh Circuit recently agreed that it was not "plain error" for a court to delegate jury selection to a magistrate in a case where the defendant did not object. See United States v. Wey, No. 89-2106 (Feb. 15, 1990). /14/ The Third Circuit has taken a different approach but ultimately reached the same result as the Second and Seventh Circuits. In Government of the Virgin Islands v. Williams, 892 F.2d 305 (1989), the Third Circuit first ruled that the defendant was not barred by the contemporaneous objection rule from raising a Gomez issue on appeal. The court reasoned that such an issue is in the nature of a "jurisdictional objection" that may be raised at any time. Id. at 310. Nevertheless, the Third Circuit concluded that there was no error in that case because the Federal Magistrates Act permits a magistrate to conduct voir dire if the defendant consents. Id. at 310-311. /15/ We believe that this case presents a suitable vehicle for resolving two of the most important post-Gomez issues -- whether a defendant's lack of objection should be excused on the ground of futility, and whether the delegation of jury selection to a magistrate before Gomez was "plain error" under Rule 52(b). The "futility" issue is not squarely presented by a case from any other circuit, but it is important because it affects so many convictions in the Ninth Circuit -- in particular, almost every conviction in the District of Hawaii. And the plain error question has widespread significance to many appellants throughout the circuits who have raised a Gomez issue even though they did not object at trial. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S. G. DENNIS, JR. Assistant Attorney General BRIAN J. MARTIN Assistant to the Solicitor General J. DOUGLAS WILSON Attorney FEBRUARY 1990 /1/ Count One of the indictment charged respondent with assault with the intent to commit murder. The jury found her guilty of the lesser-included offense of assault with a deadly weapon. /2/ The government does not challenge the court of appeals' ruling on that point. See generally Griffith v. Kentucky, 479 U.S. 314 (1987). /3/ The two decisions were United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847 (1985), and United States v. Bezold, 760 F.2d 999 (9th Cir. 1985), cert. denied, 474 U.S. 1063 (1986). /4/ The court of appeals denied the government's petition for rehearing with suggestion for rehearing en banc. App., infra, 15a. /5/ The courts have agreed that the Gomez decision applies to all cases that were on direct appeal at the time. App., infra, 7a-8a. The government does not dispute that conclusion. See note 2, supra. Because this case is on direct review, it does not present the question whether Gomez applies as well to collateral attacks on convictions. /6/ We are informed by the Criminal Division of the Department of Justice that judges from several other jurisdictions often delegated voir dire to a magistrate -- the District of Puerto Rico, the Eastern District of New York, the Central District of Illinois, the Central District of California, the Eastern District of Michigan, the District of the Virgin Islands, and the District of Delaware. /7/ Rule 51 excuses the lack of an objection if "a party has no opportunity to object to a ruling or order." /8/ Strictly speaking, Rule 51 sets forth a rule of forfeiture, not waiver, although the courts often speak in terms of a defendant's "waiver" of a legal claim. See Wangerin, "Plain Error" and "Fundamental Fairness": Toward a Definition of Exceptions to the Rules of Procedural Default, 29 De Paul L. Rev. 753, 757-758 (1980). The term "waiver" often connotes the intelligent and knowing relinquishment of a right. The forfeiture principle in Rule 51, by contrast, does not depend on the defendant's state of mind when he failed to raise an issue in the trial court. See Estelle v. Williams, 425 U.S. 501, 508 & n.3 (1976). /9/ The Ninth Circuit itself recognized as much in Guam v. Yang, supra, when it stated that this "narrow exception only applies * * * when a wall of binding authority squarely precludes the trial court from correcting an error." 850 F.2d at 512 n.8. /10/ There are similar examples from other districts in which magistrates ordinarily conducted voir dire. The panel in United States v. Lopez-Pena, 890 F.2d 490 (1st Cir. 1989), reh'g granted (Feb. 9, 1990), described such a case in the District of Rhode Island. /11/ The court of appeals did not expressly rest its judgment on that ground, but did state that the Gomez Court apparently did not intend "to limit the broad, definitive rule it announced to" a case where the defendant objected to the magistrate's conducting voir dire. App., infra, 9a. /12/ In Gomez, the Court held that the error of delegating jury selection to a magistrate over the defendant's objection could not be "harmless error." 109 S. Ct. at 2248. But it is well settled that the plain error standard is a much more stringent test for a defendant to satisfy. See United States v. Thame, 846 F.2d 200 (3d Cir.), cert. denied, 109 S. Ct. 314 (1988); United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir. 1984), cert. denied, 469 U.S. 1111 (1985); United States v. Blackwell, 694 F.2d 1325, 1341 (D.C. Cir. 1982). This is true because there may be cases where it is impossible to say that an error was harmless beyond a reasonable doubt but where it is clear that there was no miscarriage of justice. See United States v. Thame, 846 F.2d at 207 ("Although we do not believe that the error was sufficiently minor to be harmless beyond a reasonable doubt, we also do not believe that it was sufficiently major that a miscarriage of justice will result if the conviction is not reversed."). The difference in the two standards reflects the fundamental premise of our adversarial system that litigants must make their views known to the trial court. /13/ Judge Altimari dissented because he believed that "a magistrate has no power to seat a jury in a felony case with or without the defendant's consent." 884 F.2d at 1546. /14/ A panel of the First Circuit in United States v. Lopez-Pena, 890 F.2d 490 (1989), held that the delegation of jury selection to a magistrate was not a plain error that required reversal in the absence of an objection. Judge Aldrich dissented. On February 9, 1990, the First Circuit vacated the panel decision and set the case for reargument before the entire court. /15/ Judge Mansmann concurred only in the judgment. She reasoned that the district court erred in delegating jury selection to a magistrate, but that there was no plain error requiring reversal in the absence of an objection. APPENDIX