JOSE GOMEZ, PETITIONER V. UNITED STATES OF AMERICA

   DIEGO CHAVEZ-TESINA, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-5014, No. 88-5158

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
   Introduction and summary of argument
   Argument:
      I.  The Federal Magistrates Act authorizes district courts to
          delegate jury selection to magistrates
     II.  Magistrates may conduct voir dire without offending
          Article III
    III.  Any error in the procedure followed in this case was
          harmless
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (J.A. 21-48) is reported at 848
F.2d 1324.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 1, 1988.
A petition for rehearing was denied on August 4, 1988 (J.A. 49-50).
The petition for a writ of certiorari in No. 88-5014 was filed on July
5, 1988, and the petition for a writ of certiorari in No. 88-5158 was
filed on July 22, 1988.  A supplemental petition for a writ of
certiorari in both cases was filed on October 3, 1988.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   The relevant constitutional and statutory provisions are reproduced
at App., infra, 1a-4a.

                          QUESTIONS PRESENTED

   1.  Whether the Federal Magistrates Act, 28 U.S.C. 631 et seq.,
permits a district court to delegate jury selection to a federal
magistrate.

   2.  Whether a district court's delegation of jury selection to a
federal magistrate violates Article III of the Constitution where the
district court provides de novo review of the magistrate's selection
of jurors.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of New York, petitioners Jose Gomez and Diego
Chavez-Tesina were convicted of possessing cocaine with intent to
distribute it, in violation of 21 U.S.C. 841(a)(1), and conspiring to
do the same, in violation of 21 U.S.C. 846.  Petitioner Chavez-Tesina
was also convicted of conducting a narcotics racketeering enterprise,
in violation of 18 U.S.C. 1962(c), and interstate travel in aid of
racketeering, in violation of 18 U.S.C. 1952.  Petitioner Gomez was
sentenced to a total of ten years' imprisonment and a ten-year special
parole term.  Petitioner Chavez-Tesina was sentenced to a total of 20
years' imprisonment and a lifetime term of special parole.  The court
of appeals affirmed (J.A. 21-48).

   1.  Prior to petitioners' trial, the district court assigned the
task of jury selection to a magistrate.  The assignment was made
pursuant to a local rule authorizing magistrates to perform the duties
set forth in the Federal Magistrates Act, 28 U.S.C. 631 et seq.
Petitioners' counsel initially consented to the assignment, /1/ but
they subsequently objected before the magistrate at the beginning of
jury selection (J.A. 13-15).  The magistrate consulted with the
district judge, noted the objection, and proceeded to select the jury
(J.A. 16-17).  The magistrate allowed the government a total of seven
peremptory challenges and allowed petitioners and their three
co-defendants a total of 14 peremptory challenges (J.A. 6).  In order
to ensure a jury of 12 and four alternates, the magistrate empaneled
37 prospective jurors (ibid.).

   During jury selection, the magistrate explained the nature of the
charges against petitioners and their co-defendants.  The magistrate
then questioned the venire at length concerning each prospective
juror's ability to be fair and impartial in considering the evidence.
/2/ When asked by the magistrate whether additional questions were
needed, defense counsel did not suggest any further questioning
(2/9/87 Tr. 124-125).  The magistrate excused 20 prospective jurors
based on their responses to his questions (2/9/87 Tr. 21-22, 43, 55,
58, 59, 71, 73, 74, 75, 83, 91-93, 94, 127, 131).  The magistrate also
excused the only prospective juror the defendants challenged for cause
(id. at 125-126).  /3/ After the parties exercised their peremptory
challenges, 20 prospective jurors remained, four of whom were excused
by the magistrate (id. at 132).

   Following the magistrate's selection of the jury, the district
judge considered the defendants' objections to the magistrate's
authority.  The judge inquired whether "there is any one juror for
whom a challenge for cause was not sustained by (the magistrate)" and
whether any party would "like to renew the objection" (J.A. 18).  The
judge also offered de novo review of any of the magistrate's selection
decisions (J.A. 19).  Counsel for petitioners did not respond to the
invitation and counsel for a co-defendant explained that he sought to
raise only "a jurisdictional issue, not an issue to a specific juror"
(ibid.).

   2.  The court of appeals affirmed (J.A. 21-48).  The court
concluded that, consistent with both the Federal Magistrates Act and
Article III of the Constitution, a district judge may delegate jury
selection to a magistrate.  The court rejected petitioners' statutory
claim that Congress authorized the delegation of only "pretrial
matters" to magistrates and that "pretrial matters" do not include
voir dire (J.A. 29).  According to the court, "even assuming arguendo
that jury selection falls on the 'trial' side of the line between
'trial' and 'pretrial,'" the legislative history "plainly states that
the (Magistrates Act) grants to district courts the freedom to
experiment beyond duties traditionally categorized as 'pretrial'"
(ibid. (emphasis omitted)).  The court also rejected petitioners'
assertion that by requiring the parties' consent to the delegation of
civil and misdemeanor criminal trials to magistrates.  Congress
intended to allow the delegation of jury selection only with the
parties' consent (J.A. 30).  Jury selection, the court explained
(ibid.), is a function "separate and distinct" from "holding of an
entire trial."

   The court also rejected petitioners' claim that, even if it is
authorized by statute, the delegation of jury selection to magistrates
violates Article III (J.A. 30-37).  According to the court, jury
selection can be delegated to a non-Article III judge without
violating Article III, because "the delegation of authority occurs
entirely within the judicial branch, a circumstance which alleviates
greatly the underlying structural separation of powers concern with
one branch encroaching upon the power of another" (J.A. 33 (emphasis
in original)).  The court also concluded that where, as in this case,
an Article III judge retains the authority to review de novo the
magistrate's selection decisions, delegation would not offend Article
III even if jury selection were deemed "inherently judicial." The
availability of de novo review, the court explained, "vested the
ultimate decision regarding the composition of the jury with the trial
court" (J.A. 33-34).  Finally, the court rejected petitioners' claim
that Article III requires an Article III judge to be present during
jury selection (J.A. 35-37).  The court declined to adopt petitioners'
"debatable hypothesis" that "the lack of an Article III judge's
physical presence at voir dire is somehow demeaning to potential
jurors" (J.A. 36).

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   Congress enacted the Federal Magistrates Act in order to provide
federal district courts with assistance in handling the avalanche of
civil and criminal matters that threatened to overwhelm them.  See
Mathews v. Weber, 423 U.S. 261, 268-269 (1976).  The purpose of the
Magistrates Act was to encourage the use of magistrates for judicial
tasks far beyond those previously undertaken by United States
commissioners in order to permit district court judges to focus their
attention on their most pressing judicial responsibilities.  To that
end, Congress upgraded the position and specifically called on federal
courts to experiment with the use of magistrates so that the courts
could dispense justice more efficiently and expeditiously.  With
Congress's awareness, the use of magistrates in jury selection in both
criminal and civil cases has long been an important aspect of this
program.  That practice is entirely consistent with Congress's intent
in enacting the Magistrates Act and does not offend Article III when,
as in this case, it is closely supervised by the district judge.

   Contrary to petitioner's submission, jury selection falls within
the wide range of duties Congress intended to allow a district judge
to delegate to a magistrate.  The language of the Magistrates Act is
broad and admits of none of the substantial restrictions on magistrate
authority that petitioners propose.  The legislative history,
moreover, shows that Congress intended magistrates to take on a wide
variety of duties, and was repeatedly made aware that magistrates
would be used in jury selection.  Finally, petitioners' proposed
construction of the Magistrates Act is refuted by the views expressed
by the relevant Judicial Conference committee and the Administrative
Office of the United States Courts, which worked closely with Congress
during the enactment of the Magistrates Act and which agree that
magistrate jury selection is permissible under the Act.

   There is likewise no merit to petitioners' claim that Article III
forbids magistrates from conducting voir dire.  This Court rejected a
very similar claim in United States v. Raddatz, 447 U.S. 667 (1980).
The Court in Raddatz held that allowing a magistrate to conduct a
suppression hearing does not violate Article III when the magistrate's
proposed findings and recommendations are subject to de novo review by
the district judge.

   This case is not distinguishable from Raddatz in any material
respect.  Here, as in Raddatz, the district judge exercised de novo
review, leaving "the entire process * * * under the district court's
total control and jurisdiction" (447 U.S. at 683).  Contrary to
petitioners' claim, moreover, the relationship of voir dire to the
jury's verdict is no more immediate than is a suppression motion.  Nor
is meaningful de novo review of voir dire impossible.  In most
circumstances, the judge will likely find it adequate to examine the
voir dire transcript and hear argument by counsel.  And, if
circumstances warrant, the judge is of course free to redo the
magistrate's work in whole or in part.  In this case, however, because
petitioners did not object to the quality of the voir dire or to the
magistrate's decision to seat or excuse any prospective juror, they
cannot complain that the review they received was somehow inadequate.

                               ARGUMENT

   I.  THE FEDERAL MAGISTRATES ACT AUTHORIZES DISTRICT COURTS TO
DELEGATE JURY SELECTION TO MAGISTRATES

   A. Section 636 of the Magistrates Act outlines the jurisdiction and
powers of magistrates.  Two different subsections of Section 636
support the district judge's decision to delegate jury selection to
the magistrate in this case.

   1.  First, Section 636(b)(1) provides that "a judge may designate a
magistrate to hear and determine any pretrial matter pending before
the court." /4/ While the term "pretrial," standing alone, is subject
to differing interpretations, it may reasonably be read in this
context to include jury selection.  Jury selection is logically
distinct from, and antecedent in time to, the trial itself, which
commences with the swearing in of the jury, opening statements, and
the introduction of evidence.

   The question when a trial begins is perhaps most important in the
double jeopardy context.  The issue is important in that setting
because the constitutional prohibition does not apply until a
defendant is "put to trial before the trier of the facts." Serfass v.
United States, 420 U.S. 377, 388 (1975);  see Press-Enterprise Co. v.
Superior Court of California, 464 U.S. 501, 509 n.8 (1984).  And in
that setting, the Court has held that the trial begins after the "jury
is empaneled and sworn" (420 U.S. at 388).

   The characterization of jury selection as a "pretrial" procedure is
not limited to the double jeopardy setting.  Rather, this Court and
the leading commentators have commonly referred to voir dire as
occurring prior to trial.  See, e.g., Frazier v. United States, 335
U.S. 497, 513 (1949) (emphasis added) ("After accepting (the jurors)
before trial, (the defendant) could not challenge them successfully in
a motion for a new trial.");  2 C. Wright, Federal Practice and
Procedure:  Criminal 2d section 381, at 342 (1982) ("the voir dire is
held immediately before the trial commences");  2 M. Rhodes, Orfield's
Criminal Procedure Under the Federal Rules section 25.15 (2d ed. 1986)
("until a jury is sworn, there is not a trial");  W.R. LaFave & J.H.
Israel, Criminal Procedure section 21.3, at 723 (1984) ("In most
localities, it is the practice to conduct the voir dire and select the
jury immediately preceding the trial of the case in which that jury is
to serve.").  It is therefore reasonable to view voir dire as a
"pretrial matter" within the meaning of Section 636(b)(1).

   This Court's precedents do not establish that jury selection is
part of the "trial." There is therefore no basis for petitioners'
contention (Br. 15-16) that Congress could not have intended in the
Magistrates Act to include voir dire as a "pretrial matter." While the
Court has referred in certain cases to the fact that a "trial judge"
conducted voir dire, Pet. Br. 15, citing Ristaino v. Ross, 424 U.S.
589, 595 (1976), and Ham v. South Carolina, 409 U.S. 524, 528 (1973),
that is not any indication that the Court views jury selection as part
of the trial.  As demonstrated by numerous other instances in which
the Court has similarly referred to participation by a "trial judge"
in pretrial activities, the Court uses that expression interchangeably
with "district court" and without any intention to label a particular
activity as part of the "trial." /5/

   The other decisions of this Court on which petitioners rely (Br.
15-16) likewise do not address this issue.  The Court commented in
Swain v. Alabama, 380 U.S. 202, 219 (1965), that the peremptory
challenge is a "necessary part of trial by jury," but in context it is
clear that that comment was meant simply to emphasize that the
peremptory challenge is "'one of the most important of the rights
secured to the accused.'" Ibid., quoting Pointer v. United States, 151
U.S. 396, 408 (1895).  The Court in Swain did not purport to address
the quite different question whether the trial itself should be deemed
to begin before or after the selection of the jury.

   Petitioners note (Br. 16) that Fed. R. Crim. P. 23 and 24, which
address jury issues, appear in that portion of the Rules entitled
"Trial." The placement of those Rules, however, does not suggest that
Congress (or this Court) believes that jury selection is part of the
trial itself, rather than a "pretrial" proceeding.  The Federal Rules
of Criminal Procedure do not, by their internal subheadings, purport
to distinguish between pretrial and trial matters.  /6/ Rule 23,
moreover, is simply a "formulation of the constitutional guaranty of
trial by jury" and does not address jury selection at all (see notes
of Advisory Committee accompanying Rule 23).  And while Rule 24 does
describe how "trial jurors" are to be selected from the venire, its
distinction between "trial jurors" and "prospective jurors," from whom
the former are chosen, logically suggests that the selection process
is not itself part of the trial.  The notes of the Advisory Committee
accompanying the 1966 amendment of Rule 24 likewise show that the
Committee viewed the jury selection process as distinct, and
preliminary to, the trial itself.  See 1966 Advisory Committee notes
(emphasis added) ("an alternate juror may be called in the situation
where it is first discovered during the trial that a juror was unable
or disqualified to perform his duties at the time he was sworn").

   2.  While we believe that jury selection can be assigned to a
magistrate as a "pretrial" matter under Section 636(b)(1), there is an
alternative basis in the statute to authorize magistrates to perform
that function.  Section 636(b)(3) authorizes a district judge to
assign to magistrates "such additional duties as are not inconsistent
with the Constitution and laws of the United States." The purpose of
that subsection is to permit district judges "to experiment in the
assignment of other duties to magistrates which may not necessarily be
included in the broad category of 'pretrial matters'" (S. Rep. No.
625, 94th Cong., 2d Sess. 10 (1976);  H.R. Rep. No. 1609, 94th Cong.,
2d Sess. 12 (1976)).

   In drafting Section 636(b)(3), Congress wrote broadly.  The only
limitations on the authority of courts to assign matters to
magistrates are those posed by "the Constitution and laws of the
United States." In order to prevail before this Court, petitioners
must therefore point to some "law" or constitutional provision that
bars the delegation of jury selection to magistrates.  /7/

   To that end, petitioners argue (Br. 25-27) that Fed. R. Crim. P. 24
and the Jury Selection and Service Act of 1968, 28 U.S.C. 1861 et
seq., prohibit a magistrate from conducting voir dire and thus limit
the scope of Section 636(b)(3).  Petitioners' reliance on these "laws"
is misplaced, however, because neither precludes a magistrate from
conducting voir dire at a judge's request.

   Section 1867(a) of the Jury Selection and Service Act, on which
petitioners rely (Br. 26-27), simply describes the procedures that
must be followed in bringing a challenge to the selection of a grand
or petit jury on the ground of noncompliance with a provision of the
Act.  The statutory provision nowhere intimates that only a district
judge may conduct voir dire;  nor does it even suggest that a
magistrate could not consider a statutory challenge to jury selection
procedures at a judge's request.

   Rule 24 likewise does not purport to address the lawfulness of
magistrate-conducted voir dire.  It states that a court "may" permit
the defendant or his counsel to conduct voir dire and that a court
"may" conduct the examination "itself." Rule 24 does not bar a
district judge from asking the magistrate to conduct voir dire, nor
does it otherwise indicate that the judge must be present during voir
dire.  Significantly, Rule 24 uses the term "court," not the term
"judge," to refer to the officer presiding over the jury selection
process.  The term "judge" is the term that is "used in the rules to
indicate that only a judge (not to include a United States magistrate)
is authorized to act." Notes of the Advisory Committee accompanying
1972 amendment to Rule 54.  The use of the term "court" is therefore
consistent with the performance of duties by either a judge or a
magistrate.

   Even if Rule 24 could be read to provide that only a judge may
conduct voir dire, Rule 24 is not a "law() of the United States,"
within the meaning of Section 636(b)(3).  While a court rule has been
found in another context to constitute a "law of the United States,"
see United States v. Hvass, 355 U.S. 570, 575 (1958), /8/ court rules
ordinarily do not have that status, and the language of the
Magistrates Act itself supports the view that that general principle
applies in this context.  Section 636(a)(1) provides that each
magistrate shall have "all powers and duties conferred or imposed upon
United States commissioners by law or by the Rules of Criminal
Procedure for the United States District Courts" (emphasis added).
The statutory juxtaposition strongly suggests that, for purposes of
Section 636, Congress did not intend to equate "law" with the Federal
Rules of Criminal Procedure, including Rule 24.

   B.  The legislative history of the enactment of the Magistrates Act
in 1968 and its amendment in 1976 does not provide a clear answer to
whether voir dire is a "pretrial matter," within the meaning of
Section 636(b)(1), rather than an "additional dut(y)," within the
meaning of Section 636(b)(3).  But the history leaves no doubt that,
however denominated, the conduct of voir dire falls within one of
those two categories and can therefore properly be delegated to a
magistrate under the Act.  Indeed, the legislative history shows that
the very reason Congress amended the Act in 1976 was to overcome the
type of crabbed construction now advanced by petitioners.  It also
shows that Congress was repeatedly made aware that jury selection was
among those tasks being performed by magistrates, and that Congress
sought to expand, rather than restrict, the functions magistrates
could perform.

   1.  Relying on Holy Trinity Church v. United States, 143 U.S. 457
(1892) (see Br. 13), petitioners argue that the structure and
legislative history of the Magistrates Act trump what might otherwise
appear to be the plain meaning of the statute.  According to
petitioners (Br. 12-22), the structure and history of the Act show
that Congress considered jury selection an "integral part" of a
"felony trial," which Congress specifically excluded from magistrate
jurisdiction, and that, notwithstanding the sweeping terms of the Act,
Congress intended to restrict a magistrate's "additional duties" to
"routine nonjudicial burdens" and "nonadjudicative tasks." The Act's
structure and legislative history, however, support neither assertion.

   To be sure, Congress did not intend to authorize magistrates to
conduct felony trials.  The Act makes that clear by explicitly giving
magistrates the authority to try, with the parties' consent, both
misdemeanor offenses and civil matters, but not felony offenses (see
18 U.S.C. 3401(a), 28 U.S.C. 636(c)).  /9/ But there is no suggestion
in the statute or legislative history that Congress considered jury
selection to be part of the felony trial for these purposes and thus
intended to bar magistrates from conducting voir dire.

   Petitioners' assumption that Congress considered voir dire to be
part of trial is a flaw that runs throughout their brief and infects
their entire presentation.  For example, petitioners assume (Br. 24)
that magistrates were unable to conduct voir dire in misdemeanor cases
in 1976 because the statute then "required misdemeanor defendants to
waive their right to a jury trial in order to be tried by a
magistrate." The fact that magistrates could not preside over
misdemeanor jury trials in 1976, however, does not compel the
conclusion that they could not then conduct voir dire for misdemeanor
trials.  Hence, petitioners are wrong in concluding (Br. 24) that "if
the court of appeals is correct, Congress in 1976 authorized
magistrates to select felony juries over the defendant's objection,
but prohibited magistrates from selecting misdemeanor juries with the
defendant's consent." There is no such anomaly because the magistrates
could select misdemeanor juries with or without the defendant's
consent in 1976;  they simply were unable to preside over the jury
trial itself.

   At bottom, petitioners' statutory argument rests on their assertion
(Br. 16-18) that Congress's failure to refer specifically to jury
selection in Section 636(b)(1) conclusively shows that Congress did
not intend to confer such authority on magistrates.  Thus, petitioners
argue (Br. 16) that Congress failed "to provide any framework for
district court review of magistrate-conducted felony jury selection."
Petitioners' reasoning is flawed, however, because, as both the
language and legislative history make clear, Congress did not purport
to list in Section 636(b)(1) all those specific "pretrial matters"
that could properly be delegated to a magistrate.  Congress instead
referred broadly to "any" pretrial matter, and it clearly intended
flexibility rather than rigidity to be the touchstone for the
statute's implementation.  See, e.g., Jurisdiction of United States
Magistrates:  Hearing on S. 1283 Before the Subcomm. on Improvements
in Judicial Machinery of the Senate Comm. on the Judiciary, 94th
Cong., 1st Sess. 35 (1975) (hereinafter 1975 Senate Hearings) (report
of Judicial Conference) (pretrial provisions "broadly worded to
authorize the maximum use of magistrates prior to trial").

   Hence, the absence of any "framework for the district court review"
of magistrate-conducted jury selection is not significant.  Section
636(b)(1) generally establishes two different schemes for district
courts to review magistrates' rulings on pretrial matters.  The
standard of review and the procedure followed depend on the nature of
the pretrial matter at issue.  In the case of eight specifically
listed dispositive pretrial matters, a district judge must exercise
"de novo determination." In all other cases, a district judge "may
reconsider any pretrial matter * * * where it has been shown that the
magistrate's order is clearly erroneous or contrary to law" (28 U.S.C.
636(b)(1)(A) & (C)).

   In this case, of course, the district court exercised de novo
review of the magistrate's jury selection decisions.  Contrary to
petitioners' assertions (Br. 17 & n.10), however, the court's use of
de novo review did not violate the Act.  The Act provides only for a
minimum standard of review;  it does not prohibit a district court
from exercising more extensive supervision of the magistrate's work.
/10/ Indeed, in light of the constitutional claims raised in this
case, the district judge's decision to exercise de novo review was
prudent.

   2.  Nor is there any merit to petitioners' contention (Br. 19-22)
that the legislative history shows that Congress intended to restrict
those "additional duties" that are delegable under Section 636(b)(3)
to "routine nonjudicial burdens" and "nonadjudicative tasks." Congress
included the "additional duties" language in the original version of
the statute, the Federal Magistrates Act of 1968, Pub. L. No. 90-578,
section 101, 82 Stat. 1107, 1113 (1968).  /11/ Sponsors of the
legislation and witnesses who appeared before House and Senate
Committees repeatedly declared that the "additional duties" provision
should provide a broad grant of authority to district courts to
delegate tasks.  /12/ Congress's purpose was to allow district judges
to experiment and use magistrates in imaginative and innovative ways
not yet foreseen by Congress.  See S. Rep. No. 371, 90th Cong., 2d
Sess. 26-27 (1968) ("If district judges are willing to experiment with
the assignment to magistrates of other functions in aid of the
business of the courts, * * * there will be increased time available
to the judges for the careful and unhurried performance of their vital
and traditional adjudicatory duties, and a consequent benefit to both
efficiency and the quality of justice in the Federal courts.").

   Congress evinced no intention to limit the experimentation with the
use of magistrates to "routine, nonjudicial burdens." That had been
the restricted scope of tasks assigned to the United States
commissioners under the pre-1968 system that Congress sought to
abolish (see S. Rep. No. 371, supra, at 10-11).  While those same
responsibilities remained assignable to magistrates pursuant to
Section 636(a)(1), a primary purpose of the 1968 law was to create new
"judicial responsibilities" for magistrates and thereby attract
"high-caliber talent" to the position.  See 114 Cong. Rec. 27,341
(1968) (remarks of Rep. Poff);  id. at 29,407 (remarks of Sen.
Tydings) ("By raising the standards of the lower judicial office by
making the position more attractive to highly qualified individuals,
and by increasing the scope of the responsibilities that can be
discharged by that office, the bill establishes a system capable of
increasing the overall efficiency of the Federal judiciary by
relieving the district courts of some of their minor burdens * * *
.");  see also H.R. Rep. No. 1629, supra, at 10 ("the jurisdiction
exercised by the magistrate is the jurisdiction of the court itselt");
 S. Rep. No. 371, supra, at 27 ("magistrate * * * is in fact
exercising the jurisdiction and powers of the district court as an
officer of that court");  1966-1967 Senate Hearings 27 (remarks of
Sen. Tydings);  1968 House Hearings 81 (testimony of Sen. Tydings);
id. at 128 (testimony of Asst. Dep. Attorney General William T.
Finley).  /13/

   The legislative history of the 1976 amendment of the Magistrates
Act is to the same effect.  The purpose of that legislation was to
amend Section 636(b) "in order to clarify and further define the
additional duties which may be assigned to a United States Magistrate
in the discretion of a judge of the district court" (H.R. Rep. No.
1609, 94th Cong., 2d Sess. 2 (1976)).  /14/ Both the House and Senate
Reports stressed, in particular, that the purpose of subsection (b)(3)
was to "enable() the district courts to continue innovative
experimentations in the use of this judicial officer" (H.R. Rep. No.
1609, supra, at 12;  S. Rep. No. 625, 94th Cong. 2d Sess. 10 (1976)).
For that reason, Congress placed the "additional duties" provision "in
an entirely separate subsection (to) emphasize() that it is not
restricted in any way by any other specific grant of authority to
magistrates" (H.R. Rep. No. 1609, supra, at 12;  S. Rep. No. 625,
supra, at 10). Congress also criticized some district courts for not
having made extensive use of magistrates since the passage of the
Magistrates Act in 1968 (see H.R. Rep. No. 1609, supra, at 4;  Rep.
No. 625, supra, at 3;  1975 Senate Hearings 33 (report of Judicial
Conference)).

   The legislative reports, hearings, and debates preceding the 1976
amendments, like those held prior to the passage of the Magistrates
Act in 1968, refute petitioners' contention (Br. 19) that Congress
intended to assign magistrates only "routine, nonjudicial burdens" and
"nonadjudicative tasks." They show that Congress expected magistrates,
under the supervision of district judges, to undertake "adjudicatory
function(s)" and "very important judicial duties." See United States
v. Raddatz, 447 U.S. at 681 n.8 (citing S. Rep. No. 625, supra, at 6,
and H.R. Rep. No. 1609, supra, at 8) ("permitting the exercise of an
adjudicatory function by a magistrate");  1975 Senate Hearings 1
(remarks of Sen. Burdick) ("(T)he declared objective of the Congress
when it passed the Magistrates Act of 1967, was to create in the
magistrate a judicial officer who could perform various judicial
duties * * * .");  id. at 5 (testimony of Hon. Charles M. Metzner)
("Under authority of section 636(b), magistrates are presently
performing very important judicial duties for the district courts.").

   Petitioners make much (Br. 22-25) of their claim that Congress
failed in 1976 "to override the existing practice that district judges
always presided at jury selection." Absent affirmative evidence of an
intent to alter the status quo, petitioners argue, the statute must be
construed not to permit magistrates to conduct jury selection.

   That argument rests on a false premise.  When Congress amended the
Magistrates Act in 1976, magistrate-conducted voir dire was already an
accepted feature of practice under the Act;  indeed, it was the very
type of experimental and innovative use of magistrates that the
framers of the Act sought to encourage.

   The first year of full nationwide implementation of the magistrates
system, 1972, "was one of transition in which judges experimented with
the use of magistrates." See Administrative Office of the United
States Courts, Ann. Rep. 250 (1972).  That year the Judicial
Conference's Committee on the Administration of the Federal Magistrate
System authorized a subcommittee to study the conduct of voir dire by
magistrates.  The subcommittee, which issued its report in July 1973,
found that 9 district courts out of the 87 that responded had, in
varying degrees, already authorized magistrates to conduct voir dire.
/15/ See Judicial Conference, Report of the Subcommittee Assigned to
Study the Conduct of Voir Dire by Federal Magistrates 2-4 (1973)
(hereinafter Voir Dire Report).  /16/ Today, 51 districts have local
court rules that expressly provide magistrates with unqualified
authority to conduct voir dire in civil and criminal cases;  /17/ 5
districts provide such authority with some limitations;  /18/ and 18
districts, including the district involved in this case (the Eastern
District of New York), do not specifically list voir dire as a duty
for magistrates, but instead generally provide in the local rules that
magistrates may exercise all powers and perform all duties conferred
on them by Section 636.  /19/

   When Congress amended the Magistrates Act in 1976, it was aware
that magistrates were conducting jury selection.  On at least seven
different occasions between the passage of the Magistrates Act in 1968
and its amendment in 1976, including during the hearings that led
directly to the 1976 legislation, Congress was notified that
magistrates were conducting jury selection, including voir dire.  /20/
Congress expressed no objection on any of these occasions.  Instead,
on one occasion Congress appears to have expressed its general support
for the practice.

   The expression of congressional support occurred following the
testimony of Chief Judge Robert C. Belloni of the District of Oregon
in 1975 before the Senate subcommittee responsible for the magistrates
bill that passed in 1976.  Judge Belloni told the subcommittee that
magistrates had increased the efficiency of his district by, among
other things, "presid(ing) over the voir dire and jury selection of a
trial to begin momentarily before a judge who is putting the finishing
touches on his current case" (1975 Senate Hearings 39).  The House and
Senate Reports both selected Judge Belloni's testimony for special
praise in their discussion of the scope of a magistrate's intended
authority under the Act;  they referred to his testimony and stated
that "(a) similar scope of additional duties is intended for
magistrates under the provisions of (the bill)" (S. Rep. No. 625,
supra, at 7;  H.R. Rep. No. 1609, supra, at 9).  /21/

   C.  Petitioners' narrow interpretation of the Magistrates Act is
also suspect because it is contrary to the contemporaneous views
expressed by the Judicial Conference's Committee on the Administration
of the Federal Magistrate System and the Administrative Office of the
United States Courts.  Only two weeks after the passage of the 1976
amendments, the Judicial Conference's Magistrates Committee
distributed to all federal judges and magistrates a "Jurisdictional
Checklist" listing those "duties which appear to be appropriate for
delegation to magistrates under the new law" (page 1).  /22/ With
respect to "miscellaneous additional duties" under Section 636(b)(3),
the checklist includes "(c)onduct of voir dire and selection of juries
for district judges" in its list of duties that "to the extent that
(they) * * * are not covered by subsection 636(b)(1) * * * they may be
delegated to a magistrate under subsection 636(b)(3)" (page 12).  The
Administrative Office's Legal Manual for United States Magistrates
(hereinafter Magistrates Manual) takes the identical view (Vol. 1,
section 3.09, at page 3-15).  /23/ The Manual does not restrict voir
dire to civil cases or to cases where the parties have consented.  The
Manual also includes a set of model local court rules that, in the
list of "other duties" of a magistrate, authorize a magistrate to
"(c)onduct voir dire and select petit juries for the court"
(Magistrates Manual 3-49 to 3-50).  /24/

   The views of the Judicial Conference's Committee on Magistrates and
of the Administrative Office are entitled to significant weight.
Pursuant to congressional design, the Judicial Conference and the
Administrative Office "share the common purpose of providing for the
fair and efficient fulfillment of responsibilities that are properly
the province of the Judiciary." Mistretta v. United States, 109 S. Ct.
647, 663 (1989).  They worked closely with Congress in its
consideration of the magistrates legislation, both when the statute
was originally enacted in 1968 and when it has since been amended.
They also have significant official responsibilities under the Act and
related federal laws.  /25/ Not surprisingly, therefore, both the
Senate and House Reports and various individual legislators relied on
the Judicial Conference's support in advocating the legislation.  See,
e.g., H.R. Rep. No. 1609, supra, at 13;  S. Rep. No. 625, supra, at
11;  122 Cong. Rec. 35,181 (1976) (remarks of Rep. Danielson);  1975
Senate Hearings 30 (remarks of Mr. Westphal, Subcommittee Chief
Counsel);  S. Rep. No. 371, supra, at 9;  114 Cong. Rec. 27,227 (1968)
(remarks of Rep. McClory);  id. at 27,342 (remarks of Rep. Poff).
Particularly in light of Congress's reliance on the Conference and the
Administrative Office, this Court may appropriately give weight to
their interpretation of the statute, which is at odds with that of
petitioners.  See United States v. Peacock, 761 F.2d 1313, 1318 (9th
Cir.) (Kennedy, J.), cert. denied, 474 U.S. 847 (1985);  United States
v. Rivera-Sola, 713 F.2d 866, 873 (1st Cir. 1983).

   II.  MAGISTRATES MAY CONDUCT VOIR DIRE WITHOUT OFFENDING ARTICLE
   III

   Petitioners present the Article III challenge to
magistrate-conducted voir dire in its starkest form.  They do not
argue that the quality of the voir dire they received was inadequate
in any way.  /26/ They do not claim that any prospective juror was
wrongly excluded or not excluded for cause.  Nor do petitioners
contend that they were not allowed full exercise of their peremptory
challenges or that the prosecutor abused his right of peremptory
challenge.  /27/ In short, petitioners acknowledge that they were
tried and convicted by an impartial jury before an Article III judge,
yet they claim that their convictions must be overturned solely
because an Article III judge did not personally conduct the voir dire.
 In petitioner's view, Article III is not satisfied by the subsequent
availability of de novo review by the judge.  /28/

   Article III, however, imposes no such rigid bar on the use of
magistrates.  Even accepting petitioners' premise that Article III
requires the presence of an Article III judge during a federal felony
jury trial (see Br. 30-34), /29/ Article III's concerns are satisfied
in a preliminary proceeding such as voir dire by the availability of
de novo review on the part of the district judge.  Virtually all of
petitioners' arguments to the contrary were previously rejected by
this Court in United States v. Raddatz, 447 U.S. 667 (1980).

   A.  In Raddatz, the Court considered an Article III challenge to
the authority of a magistrate to hear a motion to suppress evidence in
a criminal case and to make proposed findings and recommendations to a
judge concerning the proper disposition of the motion.  Section
636(b)(1) of the Magistrates Act provides that a judge may designate a
magistrate to assist the judge in that manner as long as the judge
"make(s) a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is
made."

   This Court ruled in Raddatz that the delegation of suppression
proceedings to a magistrate "does not violate Article III so long as
the ultimate decision is made by the district court" (447 U.S. at
683).  The Court emphasized that "the entire process takes place under
the district court's total control and jurisdiction" (id. at 681).
"(T)he magistrate acts subsidiary to and only in aid of the district
court" (ibid.).  Justice Blackmun, concurring, emphasized that because
"the magistrate himself is subject to the Art. III judge's control(),
* * * the only conceivable danger of a 'threat' to the 'independence'
of the magistrate comes from within, rather than without, the judicial
department" (id. at 685).  Whenever "a controversial matter might be
delegated to a magistrate who is susceptible to outside pressures, the
district judge -- insulated by life tenure and irreducible salary --
is waiting in the wings, fully able to correct the error" (id. at 686
(Blackmun, J., concurring)).

   The Court's reasoning in Raddatz applies with equal force to the
authority of a magistrate to conduct voir dire.  Here, as in Raddatz,
de novo review of the magistrate's determinations is available.
Hence, "the ultimate decision is made by the district court" (447 U.S.
at 683).  The judge in both instances retains "plenary discretion
whether to authorize a magistrate to (conduct voir dire) and * * * the
magistrate acts subsidiary to and only in aid of the district court"
(id. at 681).  In short, as Article III requires, "'the essential
attributes' of judicial power are retained in the Art. III court." See
Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 81
(1982) (plurality opinion), quoting Crowell v. Benson, 285 U.S. 22, 51
(1932).  /30/

   None of the grounds asserted by petitioners for distinguishing this
case from Raddatz is persuasive.  First, petitioners argue (Br. 35)
that voir dire can be distinguished from a motion to suppress evidence
on the ground that "no distinction under Art(icle) III can be drawn
between jury selection and the evidence phase of the trial." In fact,
an obvious distinction can be drawn:  The evidence phase occurs during
the trial itself before an impartial jury and determines the innocence
or guilt of the accused, while voir dire is not part of the
presentation of competing versions of facts that is ordinarily
considered to constitute the "trial."

   Although petitioners suggest that the impact of suppression rulings
on the "evidence phase of the trial" is more remote than the impact of
voir dire, the converse would seem true.  The disposition of a motion
to suppress evidence determines what evidence can be admitted at
trial.  As a practical matter, "the resolution of a suppression motion
can and often does determine the outcome of the case" (Raddatz, 447
U.S. at 677-678).  Jury selection is, of course, an important
procedure but it is hard to credit petitioners' suggestion that the
voir dire of the prospective jurors is typically more important to the
resolution of a criminal case than a motion to suppress evidence.
Moreover, petitioners are not here contending that the magistrate's
role led to a jury that was biased against them.  The most that can be
said is that the magistrate's decisions may have produced an unbiased
jury with a different composition from the unbiased jury that may have
been produced if the district judge had presided over the voir dire.
And the effect of being tried by one impartial jury rather than
another is inherently speculative.  /31/

   Equally unpersuasive is petitioners' assertion (Br. 37-38, 42-45)
that Raddatz can be distinguished on the ground that voir dire
examination requires the presence of an Article III judge because
meaningful de novo review of voir dire proceedings is not possible.  A
virtually identical argument was made and rejected in Raddatz.  The
Court there acknowledged the potential difficulty of de novo review of
suppression hearings, but concluded that, rather than restrict
magistrate authority ex ante, the proper course was to assume that
courts would be "sensitive to the problems of making credibility
determinations on the cold record" (447 U.S. at 679).  /32/

   The same approach should apply here.  While reviewing another's
work is never the same as doing the work oneself, it is certainly
possible to have effective review of voir dire proceedings, just as it
is to have effective review of suppression hearings.

   To begin with, there are many occasions on which jury selection
produces no issue needing review.  Unlike suppression motions, which
are necessrily won by one side and lost by the other, jury selection
often results in both sides being satisfied with the process and the
result.  Indeed, this appears to be one of those cases, since the
parties made no objection either to the substance of the voir dire or
to the magistrate's decision to seat or excuse particular jurors.
/33/

   In addition, petitioners exaggerate the relative significance of
demeanor in voir dire by intimating that it is almost always the
crucial factor.  As is well illustrated by this case, the voir dire
process in the federal system consists for the most part of excusing
prospective jurors when, in response to a question, they expressly
acknowledge their inability to be impartial.  See, e.g., 2/9/87 Tr.
21-22 (five prospective jurors raised their hands to declare inability
to be impartial in a narcotics trafficking case);  id. at 43 (The
Court:  "You feel you would have a problem?";  Ms. Willey:  "Yes.");
id. at 55 (The Court:  "Would that experience affect your ability to
be fair here?";  Mr. Lederle:  "Yes.");  id. at 57-58 (The Court:
"Now, is there anything about the experiences you have just described
that would in your mind prevent you from sitting fairly and
impartially in this case?";  Ms. Eckelberry:  "Yes.");  id. at 59 (Ms.
Ruditsky:  "I don't think I would be impartial on this.");  id. at 73
(Mr. Manigault:  "I don't think I can be fair.");  id. at 74 (The
Court:  "Anything about the case that would prevent you from being
fair?";  Ms. Silverstein:  "I think so * * * .");  id. at 75
(Mr.Bernardo:  "I don't think I would be real objective.");  id. at 94
(Ms. Tavis:  "I don't think that I can be impartial in this case.");
id. at 127 (Mr. Lutz:  "I don't feel I have a right to this case.");
ibid.  (Ms. Rozzell:  "I do not feel that I can be fair.");  id. at
131 (Ms. Tufel:  "As I sit there, I can tell I am biased.").

   Only one prospective juror in this case was excused for cause
without making such an explicit disclosure, and that juror was excused
after petitioners' counsel explained to the magistrate why bias might
be an issue;  the government consented to the juror's removal from the
panel (see 2/9/87 Tr. 126).  Consequently, there was nothing for the
district court to review.  And even if there had been, the
magistrate's decision to excuse one of the prospective jurors for
cause could easily have been reviewed on the basis of the transcript.

   The parties' exercise of their peremptory challenges in this case,
as in most cases, was similarly noncontroversial.  One of the
important functions of voir dire is to allow the parties to hear the
prospective jurors' responses and to exercise peremptory challenges
based on those responses.  As in the case of the disposition of the
excuses for cause, the questioning that enlightens the parties'
decisions with regard to the exercise of their peremptory challenges
can easily be reviewed from the transcript or from the parties'
motions to have particular questions asked.  None of the parties in
this case objected to any question posed by the magistrate or
requested any additional questioning.  Again, therefore there was
nothing for the district court to review.  But even if such an
objection had been made, the magistrate's determination to ask or not
to ask a particular question of the prospective jurors could easily
have been reviewed by the district court either in advance or after
the fact.

   When the need for review of a magistrate's conduct of voir dire
arises, a district judge possesses considerable discretion in the way
he exercises de novo review.  How that discretion is exercised depends
on the nature of the objection made.

   Some review can occur prior to the voir dire itself, if the parties
submit questions that the magistrate refuses to ask.  Other forms of
review can take place after the fact or even during the course of the
voir dire.  In most circumstances, the judge will likely find it
sufficient to examine the voir dire transcript and hear argument by
counsel.  In some circumstances, however, the judge may decide that it
is necessary to question a particular prospective juror himself;  this
may occur following the magistrate's jury selection or even during the
midst of jury selection, if necessary.  /34/ And if, as petitioners
posit, extreme circumstances arise where the web of errors committed
by the magistrate cannot be unwoven, the judge may of course commence
the jury selection anew.  Cf. H.R. Rep. No. 1609, supra, at 3 ("In
some specific instances, (it) may be necessary for the judge to modify
or reject the findings of the magistrate, to take additional evidence,
recall witnesses, or recommit the matter to the magistrate for further
proceedings.");  Raddatz, 447 U.S. at 680 ("broad discretion includes
hearing the witnesses live to resolve conflicting credibility
claims").  Yet the possibility that in some circumstances the judge
may have to redo the magistrate's work in part or in whole does not
mean that, on the whole, the delegation of voir dire to magistrates
will be ineffective in conserving judicial resources.  Article III
does not forbid a judge from making the judgment that those rarely
incurred costs will be more than offset by savings in the vast
majority of cases such as this one.  /35/

   B.  Petitioners next contend (Br. 38-39) that magistrate-conducted
voir dire violates Article III "because the trial judge's conduct of
the subsequent trial proceedings depends upon his personal knowledge
of what occurred during voir dire." But there is no requirement that
the same judge both select the jury and conduct the trial, as
petitioners appear to concede (Br. 24 n.15).  There is therefore no
constitutional magic in ensuring that the judge who tries the case has
"personal knowledge" of the jury selection process.  Consequently,
there is no merit to petitioners' claim that in order to achieve that
result Article III must be construed to forbid magistrates from
conducting voir dire.

   C.  In challenging the use of magistrates to conduct voir dire,
petitioners understate (Br. 40-42) the adverse impact of their Article
III claim on the achievement of the purposes of the Magistrates Act
and wrongly ask this Court, under the guise of constitutional review,
to second-guess the wisdom of Congress's policy determination.
Petitioners argue, in effect, that magistrate-conducted voir dire
violates Article III because it is infrequently done;  according to
petitioners (Br. 42), magistrates conducted voir dire only 55 times
during the last six months of 1988.  Petitioners' point is misleading,
however, for several reasons.

   First, there is reason to believe that the last six months do not
reflect the historical, let alone possible future, use of magistrates
to conduct voir dire.  Because of the uncertainty about the legality
of the practice following the Fifth Circuit's 1987 decision in United
States v. Ford, 824 F.2d 1430, 1434-1438 (5th Cir. 1987), cert.
denied, 108 S. Ct. 741 (1988), it seems likely that the use of
magistrates to conduct voir dire was atypically low during the
six-month survey period on which petitioners rely.  The fact that more
than half the judicial districts in the nation specifically list voir
dire as among magistrates' permissible duties suggests that
magistrate-conducted voir dire has been relatively common in the past
and will be even more common if this Court upholds the practice.

   Second, petitioners underestimate the potential significance of
their Article III theory.  If petitioners are correct in their more
sweeping view of the restrictions imposed by Article III on the use of
magistrates -- that jury selection is part of the trial and an Article
III judge must preside over all aspects of federal court trials --
more than magistrate-conducted voir dire in felony jury trials may be
affected.  The authority of magistrates to conduct voir dire in
misdemeanor and civil cases and, even with the defendant's consent, to
try misdemeanor or civil cases may also be placed in doubt.  /36/
According to the Administrative Office of the U.S. Courts, between
July 1, 1987, and June 30, 1988, magistrates tried 1348 misdemeanor
and 989 civil cases;  during the second half of 1988, magistrates
conducted voir dire in 61 felony jury trials and, apart from cases
they tried, conducted voir dire in 178 civil cases.  /37/

   In any event, this Court should decline petitioners' invitation to
substitute its own judgment for Congress's policy determination that
magistrates are an important and effective means of relieving the
burdens of burgeoning caseloads on federal courts.  Petitioners argue
(Br. 40 n.25, 42) that magistrate-conducted voir dire will not save
judges much time, but this Court is not equipped to make that
empirical determination, even if it is somehow relevant to the legal
issue presented here.  Experience will show whether the practice is
effective, and if it is not, judges will no doubt abandon it.  In the
meantime, consistently with Congress's intent, judges should be
allowed to continue to experiment with assigning magistrates to
various "pretrial matters" and "additional duties," such as voir dire,
to determine which can most effectively ease the federal courts'
dockets.  After all, Article III does not require that an experiment
be successful in order for it to be constitutional.  /38/

   D.  For the first time, petitioners make an independent argument
based on the Due Process Clause (Pet. Br. 46-49).  /39/ Their due
process claim, however, is little more than a reformulation of their
Article III claim.  The due process right identified by petitioners is
the "additional procedural protection" of having "the independence and
impartiality of judges" who conduct voir dire and criminal trial
proceedings "enhanced by life-time tenure and an irreducible salary"
(Pet. Br. 46).  Apart from the absence of an Article III judge,
petitioners do not claim that they suffered any other injury.
Petitioners' due process claim therefore suffers from the same
infirmities as their Article III claim.  /40/

   This Court rejected a similar due process claim in Raddatz (447
U.S. at 677-681).  Applying the three-factor test described by this
Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and now relied
upon by petitioners (Br. 47), the Court concluded that any due process
rights implicated by a suppression hearing were adequately protected
by the statutory provision of de novo review.  The same procedural
safeguards apply to voir dire and therefore lead to the same result.

   First, the "private interests implicated" are similar in this case
and in Raddatz (447 U.S. at 677).  Just as "the process due at a
suppression hearing may be less demanding and elaborate than the
protections accorded the defendant at the trial itself" (id. at 679),
the process due at voir dire is less exacting than at trial.  The
proceeding is far more informal, and the court has considerable
discretion in deciding the substance and format of the questioning.
See Ristaino v. Ross, 424 U.S. 589, 594 (1976).

   Second, "the risk of an erroneous determination" is no greater here
than it was in Raddatz.  See 447 U.S. at 677.  As in Raddatz, "the
district court judge alone acts as the ultimate decisionmaker," and
"the statute grants the judge the broad discretion to accept, reject,
or modify the magistrate's proposed findings" (id. at 680).  Depending
on the nature of the objections made to the magistrate's voir dire,
the judge also has great discretion in the way he conducts de novo
review, ranging from examination of the transcript to questioning
prospective jurors himself.

   Third, "the public interest and administrative burdens, including
the costs that the additional procedures would involve" (Raddatz, 447
U.S. at 677) support the constitutionality of magistrate-conducted
voir dire.  Underlying the enactment and subsequent amendments of the
Magistrates Act is "Congress' recognition that a multitude of new
statutes and regulations had created an avalanche of additional work
for the district courts which could be performed only by multiplying
the number of judges or giving judges additional assistance." Mathews
v. Weber, 423 U.S. at 268;  see Wingo v. Wedding, 418 U.S. at 463;  S.
Rep. No. 625, supra, at 2-5;  H.R. Rep. No. 1609, supra, at 4-7.
Congress empowered magistrates to consider "pretrial matters" and
undertake "additional duties" so that district judges could spend more
time on the trials themselves.

   Congress's decision to enlist the aid of magistrates rather than
increase the number of district judges reflects a considered fiscal
and administrative policy decision.  It costs much more to create and
annually fund a judgeship than a magistracy.  See, e.g., 1975 Senate
Hearings 4 (remarks of Judge Metzner on behalf of the Judicial
Conference) ("It is our considered judgment that we cannot continue to
cope with this problem (of growing caseloads) by increasing the number
of district judges and the supporting staffs of law clerks,
secretaries, court clerks, court reporters and other employees, with
the concomitant need for huge additional physical space.").  Creating
a magistrate's position is also a more flexible means of addressing
the congestion problem in many instances.  A magistrate may be hired
part-time and may be readily assigned to different tasks in different
courthouses and even different districts as the need arises.  See,
e.g., H.R. Rep. No. 1609, supra, at 9, 12-13.

   In light of these factors, Congress's decision to permit
magistrates to conduct voir dire comports with due process.  As this
Court explained in another context, "some play in the joints of the
jury-selection process is necessary in order to accommodate the
practical problems of judicial administration.  Congress could
reasonably adopt procedures which, while designed to assure that 'an
impartial jury (is) drawn from a cross-section of the community,' at
the same time take into account practical problems of judicial
administration." Hamling v. United States, 418 U.S. 87, 138 (1974).

   Petitioners objected to having the magistrate conduct the voir dire
in this case, but they did not object to, or seek review of, anything
the magistrate did in the course of the voir dire proceedings.  For
that reason, even if the district court committed statutory or
constitutional error in assigning the voir dire to the magistrate, the
error was harmless and does not entitle petitioners to a reversal of
their convictions.

   As this Court has repeatedly stated, most errors that occur in the
process leading to a defendant's conviction are subject to harmless
error analysis.  Thus, the Court has applied harmless error analysis
to a wide variety of errors, such as errors in the grand jury process
(see Bank of Nova Scotia v. United States, 108 S. Ct. 2369 (1988)),
violations of the Confrontation Clause (see Delaware v. Van Arsdall,
475 U.S. 673 (1986)), errors in jury instructions (see Pope v.
Illinois, 481 U.S. 497 (1987)), and violations of the right to be
present at trial (see Rushen v. Spain, 464 U.S. 114 (1983)).  Only in
a few settings has the Court applied a rule of per se reversal upon
finding that error has been committed.  Those include the complete
denial of counsel (see Perry v. Leeke, 109 S. Ct. 594, 600 (1989)),
racial discrimination in the selection of grand jurors (see Vasquez v.
Hillery, 474 U.S. 254 (1986)), and adjudication by a biased judge (see
Tumey v. Ohio, 273 U.S. 510 (1927)).

   Petitioners argue (Br. 28-29, 45-46) that the error in this case --
permitting an unauthorized officer to conduct the voir dire -- is a
fundamental one that cannot be harmless under any circumstances.  We
disagree.  In at least some cases, of which this one is a clear
example, it is possible to say with great confidence that the
assignment of a magistrate to conduct the voir dire could not have
prejudiced the defendants.  In such cases, reversal of the defendants'
convictions would be a miscarriage of justice.

   The most significant factor bearing on the harmless error issue in
this case is that petitioners voiced no complaints about the way the
voir dire was conducted, other than objecting to the fact that the
magistrate conducted it.  In the typical harmless error case, the
appellant loses if he fails to persuade the court that he would not
have been convicted absent the error in question.  In this case,
petitioners not only cannot make that argument, but they cannot even
claim that the voir dire or the trial would have been conducted any
differently if the judge, rather than the magistrate, had presided
over the jury selection process.  See United States v.
Rodriguez-Suarez, 856 F.2d 135, 138 (11th Cir. 1988), cert. denied,
109 S. Ct. 875 (1989).

   This case is therefore quite different from a case in which the
defendant has been denied his right to counsel, but cannot point to
any specific error at trial that prejudiced him.  As the Court has
held, the right to counsel is fundamental, and absent the opportunity
to be represented by counsel, a reviewing court cannot have confidence
that the result is a fair one, even if no obvious errors appear on the
face of the record.  See Chapman v. California, 386 U.S. 18, 23
(1967).  In this case, petitioners' counsel represented them
throughout the voir dire and were invited to call to the attention of
the magistrate or the district judge any flaws in the process that
they perceived.  Since they failed to note any flaws at all, the Court
can have confidence that the voir dire was properly conducted, or at
least that any error was so insignificant as to fall beneath counsel's
notice.

   An additional factor bearing on the appropriateness of harmless
error analysis in this setting is the nature of appellate review of
claims of error in the voir dire process.  While defendants have a
constitutional right to an impartial jury, they do not have a
constitutional right to the impartial jury of their choice.  For that
reason, reviewing courts typically focus on the defendant's "right to
reject, not to select a juror," and the loss of a potentially
favorable juror is ordinarily not a ground for appeal.  See Hayes v.
Missouri, 120 U.S. 68, 71 (1924);  Northern Pac. R.R. v. Herbert, 116
U.S. 642, 646 (1886);  United States v. Marchant, 25 U.S. (12 Wheat.)
480, 482 (1827);  see also Ross v. Oklahoma, 108 S. Ct. 2273, 2277
(1988) ("Any claim that the jury was not impartial * * * must focus *
* * on the jurors who ultimately sat.  None of those 12 jurors,
however, was challenged for cause by petitioner, and he has never
suggested that any of the 12 was impartial.").  /41/

   Petitioners mistakenly assume (Br. 44) that a defendant is entitled
to relief whenever a court's action requires that he unnecessarily
exercise a peremptory challenge.  At least where the relevant statute
allowing peremptory challenges so limits that right, a defendant
cannot complain even when a court forces the defendant to exercise his
last peremptory challenge by erroneously declining to exclude a
prospective juror for cause:  "So long as the jury that sits is
impartial, the fact that the defendant had to use a peremptory
challenge to achieve that result does not mean the Sixth Amendment was
violated." Ross v. Oklahoma, 108 S. Ct. at 2278.  In sum, the record
in this case makes it amply clear that, regardless of the magistrate's
authority to conduct the voir dire, there was no error in the rulings
made in the course of the voir dire, and certainly no error that would
entitle petitioners to reversal of their convictions and a new trial.
Under these circumstances, it would serve no purpose to reverse
petitioners' convictions in the absence of any cognizable prejudice to
the defense.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   RICHARD J. LAZARUS

      Assistant to the Solicitor General

   J. DOUGLAS WILSON

      Attorney

   MARCH 1989

   /1/ At a pretrial conference held on November 20, 1986, the
district judge assigned jury selection to the magistrate (J.A. 1).  As
petitioners note (Br. 2 n.2), the court reporter's notes for that
conference cannot be located and, consequently, have not been
transcribed.  As subsequently described by the district judge,
however, petitioners' counsel had previously "agreed * * * that the
magistrate would do it" (J.A. 18).

   /2/ The voir dire of February 9, 1987, has only recently been
transcribed.  Petitioners have lodged a copy of that transcript with
the Court.

   /3/ The magistrate declined to excuse for hardship a prospective
juror who had an ill relative.  No counsel objected to the
magistrate's action in that regard or otherwise challenged the
prospective juror for cause.  See 2/9/87 Tr. 87, 93-94.

   /4/ The exception in Section 636(b)(1)(A) for certain matters has
no bearing on this case.  Jury selection is not among those matters
excepted and, in any event, the exception is solely for the purpose of
mandating a de novo determination by the district judge in those
instances in which a magistrate hears and recommends a particular
disposition to which a party objects (see 28 U.S.C. 636(b)(1)(B) &
(C)).  Hence, the statute allows magistrate consideration of even
those pretrial matters nominally "except(ed)" from the grant of
magistrate authority.

   /5/ See, e.g., Beech Aircraft Corp. v. Rainey, 109 S. Ct. 439, 444
(1988) (emphasis added) ("The trial judge determined, at a pretrial
conference * * * .");  Rock v. Arkansas, 107 S. Ct. 2704, 2707 (1987)
(emphasis added) ("The trial judge held a pretrial hearing on the
motion * * * .");  Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,
427 (1985) (emphasis added) ("the trial judge issued a pretrial ruling
* * * .");  Massachusetts v. Sheppard, 468 U.S. 981, 987 (1984)
(emphasis added) ("At a pretrial suppression hearing, the trial judge
concluded * * * .");  Philadelphia Newspapers, Inc. v. Jerome, 434
U.S. 241, 241 (1978) (per curiam) (emphasis added) ("the trial judges
closed all pretrial hearings").

   /6/ The various subheadings include "scope, purpose, and
construction," "preliminary proceedings," "indictment and
information," "arraignment and preparation for trial," "venue,"
"trial," "judgment," "appeal," "supplemental and special proceedings,"
and "general provisions."

   /7/ If the Court concludes that jury selection is a "pretrial
matter," within the meaning of Section 636(b)(1)(A), petitioners are
left only with their constitutional claim.  While delegations under
Section 636(b)(3) cannot be made if they are "inconsistent with the *
* * laws of the United States," delegations pursuant to Section
636(b)(1) are permitted "(n)otwithstanding any provision of law to the
contrary." As petitioners implicitly concede (Br. 27), the presence of
that language in paragraph (1) removes any possible argument based on
any "laws of the United States" other than the Constitution.

   /8/ In Hvass, the Court concluded that an attorney who made a
willfully false statement while under oath pursuant to a local federal
court rule was subject to criminal prosecution for perjury.  The Court
reasoned that "(t)he phrase 'a law of the United States,' as used in
the perjury statute, is not limited to statutes, but includes as well
Rules and Regulations which have been lawfully authorized and have a
clear legislative base" (355 U.S. at 575).

   /9/ The legislative history makes that point clear as well.  See,
e.g., H.R. Rep. No. 1629, 90th Cong., 2d Sess. 20-22 (1968);  S. Rep.
No. 371, 90th Cong., 2d Sess. 29-33 (1968);  H.R. Rep. No. 287, 96th
Cong., 1st Sess. 2, 17 (1979);  S. Rep. No. 74, 96th Cong., 1st Sess.
5-7, 17 (1979).

   /10/ Section 636(b)(4) also specifically authorizes district courts
to "establish rules pursuant to which the magistrates shall discharge
their duties," which can include adjustments in the standard of review
for particular functions.

   /11/ As originally enacted, the Magistrates Act enumerated three
duties that district courts could assign to magistrates:  serving as a
special master;  assisting a district court in pretrial matters in
civil and criminal actions;  and preliminarily reviewing applications
for post-trial relief in criminal cases.  The Act expressly stated,
however, that magistrates were not restricted to those functions.  See
Pub. L. No. 90-578, section 101, 82 Stat. 1107, 1113 (1968).

   /12/ For instance, Senator Tydings, the author of the Act and its
principal Senate sponsor, told the House subcommittee that was
considering the legislation that "(w)e wanted to make it clear that
magistrates are available to the courts to serve in any capacity not
in conflict with the Constitution or the laws of the United States, as
an officer of the district court." Federal Magistrates Act:  Hearings
on S. 945, etc., Before Subcomm. No. 4 of the House Comm. on the
Judiciary, 90th Cong., 2d Sess. 87 (1968) (hereinafter 1968 House
Hearings) (emphasis added).  See Federal Magistrates Act:  Hearings on
S. 3475 and S. 945 Before the Subcomm. on Improvements in Judicial
Machinery of the Senate Comm. on the Judiciary, 89th Cong., 2d Sess.
and 90th Cong., 1st Sess. 14 (1966-1967) (hereinafter 1966-1967 Senate
Hearings) (remarks of Sen. Tydings) ("(I)i is appropriate to allow the
district court to make whatever use of (the magistrates') services as
it sees fit, in addition to the functions that the statute assigns
them.");  id. at 196 (testimony of Hon. Talbot Smith) ("(I)t would be
helpful to the district judges to have a wide leeway in their
authorization of the use of magistrates.");  id. at 52 (testimony of
Hon. Edward S. Northrup) (The Act is "flexible enough to be capable of
being adjusted to almost any situation that might exist.").

   /13/ Petitioners' reliance on Rep. Poff's statement in 1968 that
the "additional duties" provision "was not in any way intended as the
predicate for expanding the jurisdiction of the magistrate," is
misplaced (Pet. Br. 19, quoting 114 Cong. Rec. 28,360-28,361 (1968)).
Rep. Poff was referring only to the power of a magistrate "to decide a
case outside of the minor offense jurisdiction created by this bill"
(id. at 28,360 (emphasis added)).  But in any event, it is clear that
the 1976 amendments were intended to avoid just the type of narrow
construction petitioners propound.

   /14/ Congress amended the Act in 1976 partly in response to this
Court's decision in Wingo v. Wedding, 418 U.S. 461 (1974) in which the
Court held that the "additional duties" provision in effect at that
time did not authorize a district judge to assign magistrates
responsibility for holding evidentiary hearings on habeas corpus
petitions.  Congress intended to overrule that ruling through the 1976
amendments.  See H.R. Rep. No. 1609, supra, at 5;  S. Rep. No. 625,
supra, at 3-4;  United States v. Raddatz, 447 U.S. at 674.

   /15/ At least two of the four districts that did not respond, the
Eastern and Middle Districts of Louisiana, did have local rules at the
time permitting a magistrate to "conduct voir dire examination and
impanel trial juries" (See Magistrate System:  Hearing Before the
Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on
the Judiciary, 92d Cong., 2d Sess. 81 (1972) (copy of local court
rules for Eastern District of Louisiana appended to prepared testimony
of Harry Lee, Chairman of Legislative Comm. of Federal Magistrates);
Local Rules for the Middle District of Louisiana, Rule 26(c)(5)(i)
(effective April 16, 1972).

   /16/ A copy of the report has been lodged with the Court.  The
report's survey found (pages 3-4) that the districts allowed
magistrate-conducted voir dire in differing circumstances;  Central
California, Oregon, and Western Michigan (only in emergency
circumstances) allowed magistrate-conducted voir dire in both civil
and criminal cases;  the District of Columbia and Northern Iowa
similarly authorized magistrates to conduct voir dire in civil and
criminal cases, but only with the written consent of the parties;
Western Kentucky and Eastern Texas permitted magistrate-conducted voir
dire only in civil cases;  Arizona allowed the practice only in civil
cases with the parties' consent, but then contemplated that a similar
rule would be adopted for criminal cases;  and in Western Pennsylvania
a clerk conducted voir dire in civil cases and one judge permitted the
magistrate to conduct voir dire in criminal cases so long as the judge
ruled on all legal issues.  While the subcommittee questioned the
practical value of magistrate-conducted voir dire, it explicitly did
"not recommend that those districts which have adopted rules or
followed the practice of having magistrates conduct voir dire
examination of jurors repeal the rules or abandon the practice" (Voir
Dire Report 9).  The subcommittee did suggest, however, that those
districts just beginning to experiment with magistrate-conducted voir
dire limit the practice to civil cases with the consent of the parties
(ibid.).  The subcommittee further recommended that there be "some
provision for the district judge to review the rulings of the
magistrate which are objected to * * * (e)specially * * * if the rule
or practice is to be employed in criminal cases" (ibid.).  The
Judicial Conference's Committee on the Operation of the Jury System
accepted the Report in September 1973;  the minutes of the review of
the subcommittee's report by the Judicial Conference's Committee on
the Administration of the Federal Magistrates Act "expressed no
objection" to magistrate-conducted voir dire in civil cases with the
parties' consent and made no comment on the practice in other
circumstances, including criminal cases.  None of these documents
(copies of which have been lodged with the Court) questions the
legality of magistrate-conducted voir dire under the Act.
Significantly, however, immediately following passage of the 1976
legislation, the Judicial Conference's Magistrates Committee
distributed a memorandum that provided, without limitation, that
magistrates could conduct voir dire (see pages 25-26 & note 22,
infra).

   /17/ See N.D. Ala. Mag. R. 4(f);  S.D. Ala. R. 26(1)(i)(6);  C.D.
Cal. Mag. R. 1.76;  E.D. Cal. R. 303(2);  N.D. Cal. R. 303(2);  N.D.
Cal. R. 405(g);  S.D. Cal. R. 501-8(f);  D. Col. R. 303(2);  D. Del.
Mag. R. 1(i)(6);  D. D.C. R. 501(b)(6);  M.D. Fla. R. 6.01(c)(20);
N.D. Fla. R. 24(j)(2)(c)(1);  S.D. Fla. Mag. R. 1(i)(6);  S.D. Ga. R.
21.5;  D. Haw. R. 401-8(f);  D. Idaho R. 4-101(j)(6);  C.D. Ill. R.
3(a)(14);  S.D. Ill R. 29(i)(6);  N.D. Ind. R. M-1(i)(9);  S.D. Ind.
R. M-13;  N.D. Iowa R. 31(j)(4);  S.d. Iowa R. 31(j)(4);  D. Kan. R.
601(i)(6);  E.D. Mich. R. C-i(j)(6);  W.D. Mich. Mag. R. 1(h)(5);  D.
Minn. R. 16(E)(5);  W.D. Mo. R. 22(K)(6);  D. Neb. R. 44(I)(6);  D.
Nev. R. 500-9(f);  D.N.H. Mag. R. D(3);  D.N.J. R. 40(A)(54);
E.D.N.C. R. 62.09(f);  M.D.N.C. R. 401(b)(4);  D.N.D. R. 28(c)(4);
N.D. Ohio R. 19.10(2);  S.D. Ohio (W. Div'n) R. 1(1)(6);  E.D. Pa. R.
7(i)(6);  M.D. Pa. R. 901(a)(7);  W.D. Pa. Mag. R. 6(e);  D.P.R. R.
506.6;  D.R.I. R. 32(e)(5);  E.D. Tenn. R. 21.1(d);  M.D. Tenn. R.
601(a)(2);  W.D. Tenn. R. 17(i)(6);  D. Vt. Mag. R. 1(A)(IX)(a)(iv);
W.D. Wash. Mag. R. 9(d);  N.D. W.Va. R. 4.01(i)(6);  S.D. W.Va. Mag.
R. 1(i)(6);  E.D. Wis. R. 13.06(d).

   /18/ D. Alaska R. 3(2) (consent of parties);  D. Ariz. R. 18(d)(6)
(same);  N.D. Okla. R. 32(B)(12) (civil cases);  W.D. Okla R.
39(B)(12) (same);  E.D. Wash. 8(d) (same).

   /19/ See M.D. Ala. R. 32(c);  D. Conn. Mag. R. 1;  N.D. Ill. R.
1.70(A);  E.D. Ky. R. 18(a);  W.D. Ky. R. 18(a);  E.D. Mo. R. 21;  D.
Mont. R. 400-1;  D. N.M. R. 27(a);  E.D.N.Y. Mag. R. 1;  S.D.N.Y. Mag.
R. 1;  S.D. Ohio R. 2.4.1 (except Western Div'n);  E.D. Okla. R. 32;
D. Or. R. 135-1(b);  D.S.C.R. 19.01;  E.D. Tex. R. 15;  S.D. Tex. R.
15(A);  E.D. Va. R. 29(N).

   /20/ See 1975 Senate Hearings 39 (testimony of Chief Judge Robert
C. Belloni);  id. at 20 (testimony of Morey L. Sear, Chairman of the
Leg. Comm. Nat'l Council of U.S. Magistrates) 20 (indicating
preference for amendment of the law or further legislative history to
"make clear the authority of magistrates to select juries * * * ");
Comptroller General, Report to Congress, The U.S. Magistrates:  How
Their Services Have Assisted Administration of Several District
Courts;  More Improvements Needed, reprinted in Improvement of
Judicial Machinery:  Hearings Before Subcomm. on Courts, Civil
Liberties, and the Administration of Justice of the House Comm. on the
Judiciary, 94th Cong., 2d Sess. 391 (1975) (duties of magistrate in
Oregon district court include "presiding over the selection of juries
in both civil and criminal cases");  The Omnibus Judgeship Bill:
Hearing Before the Subcomm. on Improvements in Judicial Machinery of
the Senate Comm. on the Judiciary, 93d Cong., 1st Sess. 413 (1973)
(testimony of Judge Joe J. Fisher) ("I use (the magistrate) to select
juries, which I think is a very good use for a magistrate.  You can
get consent from the attorneys to use them in this way, and it is a
saving of the court's time.");  id. at 518 (testimony of Chief Judge
Robert C. Belloni) (magistrate "presides at jury selections");
Magistrate System:  Hearing Before the Subcomm. on Improvements in
Judicial Machinery of the Senate Comm. on the Judiciary, 92d Cong., 2d
Sess. 81 (1972) (copy of local court rules for Eastern District of
Louisiana appended to prepared testimony of Harry Lee, Chairman of
Leg. Comm. of Federal Magistrates) ("The United States Magistrates * *
* shall perform the following additional duties as and when assigned
to them by any Judge in this District:  * * * * * Conduct voir dire
examination and impanel trial juries.");  Administrative Office of the
United States Courts, Ann. Rep. 250 (1972) ("Some of the other duties
being performed by magistrates in various district courts include the
following:  * * * * * Presiding over the selection of juries in civil
cases, including voir dire examination.").

   /21/ Petitioners' attempt (Br. 24 n.15) to diminish the
significance of Judge Belloni's testimony is unsuccessful.  First, the
judge's discussion is not "ambiguous" (ibid.).  It includes no
reference to "civil cases," as suggested by petitioners (ibid.).  Nor
does the qualification that magistrates can act only where "lawyers
stipulate" apply to his discussion of voir dire.  That qualification
relates to a different subject -- the circumstance of a magistrate
"presid(ing) over the jury or nonjury trial exactly as if he were a
judge" (1975 Senate Hearings 39).  Finally, petitioners get no comfort
from the fact that the favorable mention of Judge Belloni's testimony
occurs under the heading "pretrial matters." As previously explained,
although there is some ambiguity concerning whether Congress
considered voir dire to be a "pretrial matter" rather than just as an
"additional dut(y)," what remains clear is that Congress intended, one
way or the other, to allow district judges to delegate that task to
magistrates.  In any event, although the relevant discussion occurs
under the "pretrial" heading, both reports state that "(a) similar
scope of additional duties is intended for magistrates under the
provisions of (the bill)" (S. Rep. No. 625, supra, at 7 (emphasis
added);  H.R. Rep. No. 1609, supra, at 9).

   /22/ A copy of that memorandum, dated November 5, 1976, has been
lodged with this Court.

   /23/ Petitioners argue that the views of the Manual should be
discounted in this respect because it is "difficult to reconcile" the
Manual's acknowledgement (at page 3-19) that magistrates cannot try
felony cases "with the manual's approval of voir dire delegation,
unless such approval was meant to apply only to civil cases" (Pet. Br.
18 n.11).  Petitioners' mistake, which is repeated throughout their
brief, is their unstated assumption that voir dire is part of the
felony jury trial itself.  As is made clear, however, by the very
provisions upon which petitioners rely, the Manual does not consider
voir dire to be part of the trial itself.  Hence, the Manual is not
internally inconsistent.

   /24/ To be sure, a foreword to the Manual points out that it "is
designed merely to be a guide and a readily available reference work"
and "is not an official directive from the Judicial Conference of the
United States or the Administrative Office or a substitute for
decisional law * * * " (Magistrates Manual iii).  Nonetheless, the
Manual is instructive, because it reflects the interpretation of the
Act by Judicial Branch officers intimately familiar with its origins
and administration.

   /25/ As petitioners acknowledge (Br. 23), the Judicial Conference
initially proposed the legislation that, with some modification,
passed Congress in 1968 and 1976.  Representatives of the Conference
also testified at the hearings on the legislation and filed reports
with the relevant congressional committees on the bills under
consideration.  See, e.g., 1975 Senate Hearings 4 (testimony of Judge
Charles M. Metzner, Chairman of Judicial Conference's Magistrates
Committee);  id. at 33-40 (report of Judicial Conference on
legislation);  1966-1967 Senate Hearings 241j-244 (report of Judicial
Conference on legislation).  Finally, the Judicial Conference and the
Administrative Office, under the Conference's supervision, each has
significant responsibilities under the Act and related laws;  for
instance, the Judicial Conference must promulgate standards and
procedures for the appointment of magistrates (28 U.S.C. 631(b)(5));
the Director of the Administrative Office must determine the number,
locations, and salaries of magistrates (28 U.S.C. 633);  and the
Director must prepare a manual for the use of magistrates "set(ting)
forth their powers and duties" (28 U.S.C. 604(d)(4)).

   /26/ The transcript of the voir dire shows that the voir dire was
extensive and probing.  No doubt for that reason, when given the
opportunity by the magistrate, none of petitioners' counsel requested
any additional questioning (see 3/9/87 Tr. 124).  See Gomez C.A. Br.
37 ("Gomez was not prejudiced by any specific ruling of the magistrate
during jury selection and made no such specific complaint to the
district judge * * * .").

   /27/ For the first time in this case, petitioners now intimate (Br.
3 & n.4) that because the magistrate declined to excuse a prospective
juror for hardship after she stated that she might need to attend a
funeral of a relative, petitioners might themselves have been
compelled to exercise a peremptory challenge to excuse that
prospective juror.  But petitioners made no objection either before
the magistrate or the district court to the decision not to excuse the
juror.  They therefore cannot now complain that the decision not to
excuse the juror might have prejudiced them -- a claim that is in any
event far-fetched.

   /28/ Petitioners cannot, of course, claim that Article III judges
must personally preside over all aspects of jury selection.
Otherwise, the well-settled practice of using jury commissioners to
aid in the selection of prospective jurors for the array would be
unconstitutional.  See Jury Selection and Service Act of 1968, 28
U.S.C. 1861 et seq.; see also Fay v. New York, 332 U.S. 261, 271
(1947) (overruled on other grounds in Taylor v. Louisiana, 419 U.S.
522, 530 (1975)) ("Many of the standards of elimination which the
clerk is directed to apply in choice of the panel are those the court
would have to apply to excuse a juror on challenge for cause.").

   /29/ That question is not free from doubt.  It is well settled that
an Article III judge need not preside over all facets of a federal
criminal proceeding, because "the Constitution does not require that
all persons charged with federal crimes be tried in Art. III courts."
See Swain v. Pressley, 430 U.S. 372, 382-383 (1977);  see Palmore v.
United States, 411 U.S. 389, 402 (1973) ("Very early in our history,
Congress left the enforcement of selected federal criminal laws to
state courts and to state court judges who did not enjoy the
protections prescribed for federal judges in Art. III.").  From that
premise, it would seem to follow that Article III is not violated when
a federal magistrate presides over a jury trial.  But see Northern
Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64 n.15 (1982)
(plurality opinion).  In this case, as in Raddatz, however, the Court
need not reach that issue, because "Congress has not sought to make
any such delegation" (447 U.S. at 681).

   /30/ In addition, as Judge Rubin noted, dissenting in United States
v. Ford, 824 F.2d 1430, 1446-1447 (5th Cir. 1987), cert. denied, 108
S. Ct. 741 (1988), it is far from clear that judges have historically
been physically present during voir dire:  "Centuries ago, under the
common law of England, * * * court decisions indicate that it was not
remarkable for challenges for cause to be tried to and decided by
panels of other jurors rather than by the judge, and that such
challenges may have been tried outside the presence of the judge"
(ibid. (footnotes omitted)).  See 9 W. Holdsworth, A History of
English Law 183 (3d ed. 1944);  J. Thayer, A Preliminary Treatise on
Evidence at the Common Law 123-124 (1898);  Moore, Voir Dire
Examination of Jurors:  I. The English Practice, 16 Geo. L.J. 438,
442-443 (1928);  see also Hopt v. Utah, 110 U.S. 574, 577 (1884).

   /31/ For this reason, there is no merit to petitioners' suggestion
(Br. 36) that voir dire, presumably unlike suppression motions, is of
"fundamental importance." Both are important.  And while voir dire
implicates the accused's right to trial by an impartial jury, a motion
to suppress evidence, depending on the particular constitutional right
underlying the motion, may implicate equally fundamental rights, such
as those arising under the Fourth, Fifth, or Sixth Amendments.  Hence,
no valid distinction can be drawn between voir dire and suppression
motions based on their relative "importance" to the accused.

   /32/ The dissenting justices in Raddatz made the same argument
petitioners have advanced in this case.  See 447 U.S. at 689 (Stewart,
J., dissenting) ("It is my view that the judge could not make the
statutorily required 'de novo determination' of the critically
contested factual issues in this case without personally observing the
demeanor of the witnesses.");  id. at 711 (Marshall, J., dissenting)
("in cases like this one the magistrate's decision is effectively
unreviewable if the district judge does not hear the witnesses").

   /33/ Petitioners repeatedly make much of the fact that the trial
judge in this case did not "order or review the voir dire transcript"
(Br. 3, 9, 44, 48).  Because petitioners did not object to the
substance of the voir dire, including the jurors selected and excluded
(see J.A. 18-19), the district court can hardly be faulted for failing
to order and review the transcript.  For the same reason, petitioners
cannot now complain that the scope of de novo review offered by the
judge was too narrow.  Although the judge spoke most directly to the
possibility of de novo review with regard to "any one juror for whom a
challenge for cause was not sustained by (the magistrate)," there is
no indication that, as petitioners now contend (Br. 3, 44, 48), the
judge would have refused to consider any other objection to the voir
dire.

   /34/ If an unanticipated controversy arises during jury selection,
the magistrate is free to consult with the judge, who may then decide
to intervene.  In this case, for example, after petitioners' counsel
objected to the magistrate's conducting voir dire, the magistrate
asked counsel whether "some inquiry should be posed to Judge
McLaughlin now" (J.A. 15).  The magistrate then consulted with the
judge and learned that the judge's "view of the law was the same as
mine" (J.A. 16).

   /35/ Even Judge Oakes, dissenting from the court of appeals'
judgment, did not conclude that Article III precludes
magistrate-conducted voir dire.  He instead stated that because he did
not believe the practice "can save much judicial time," it should
generally be prohibited "in the exercise of our supervisory power"
(J.A. 48).

   /36/ See, e.g., Geras v. Lafayette Display Fixtures, Inc., 742 F.2d
1037, 1045-1054 (7th Cir. 1984) (Posner, J., dissenting) (concluding
magistrate-conducted civil trials pursuant to Section 636(c) violate
Article III even with the parties' consent).

   /37/ See Letter from Gerard Jones, Program Analyst, Magistrates
Division, Administrative Office of the U.S. Courts (Mar. 30, 1989)
(copy lodged with the Court).  The 61 felony voir dire proceedings
represents a modification of the number (55) the Administrative Office
provided in its letter to petitioners' counsel.

   /38/ This court rejected a similar argument in Raddatz.  See 447
U.S. at 702 n.5 (Marshall, J., dissenting) ("Experience shows that
motions to suppress evidence consume a relatively small proportion of
the time of federal district judges.").

   /39/ Although petitioners referred to "due process" both in their
petitions and in their court of appeals briefs, they did not make a
due process argument independent of their Article III claim.  See,
e.g., 88-5014 Pet. 1, 5;  88-5158 Pet. 7;  Supp. Pet. i, 16, 18.  The
court of appeals, accordingly, addressed only petitioners' Article III
argument.  See J.A. 30-37.

   /40/ Petitioners' due process claim surely must fail, moreover, to
the extent that petitioners are claiming a due process right to have a
judge with life tenure and irreducible salary conduct voir dire.  If
due process required that result, most criminal jury trials in state
courts would violate due process.  Cf. Raddatz, 447 U.S. at 685 n.3
(Blackmun, J., concurring).

   /41/ Of course, there are exceptions to this general principle.
For instance, "a sentence of death cannot be carried out if the jury
that imposed or recommended it was chosen by excluding veniremen for
cause simply because they voiced general objections to the death
penalty (Witherspoon v. Illinois, 391 U.S. 510, 522 (1968));  and "the
Equal Protection Clause forbids the prosecutor to challenge potential
jurors solely on account of their race or on the assumption that black
jurors as a group will be unable impartially to consider the State's
case against a black defendant" (Batson v. Kentucky, 476 U.S. 79, 89
(1985)).  Such issues do not, however, arise in the vast majority of
cases (including this one) and, even when they do, they are
susceptible to meaningful de novo review by a district judge.

   APPENDIX