Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1987)

MEMORANDUM^** 

In this consolidated appeal, Pavit Nittayanupap and Arkrin Taecharatanaprasert ("appellants") appeal their convictions for making false statements as to a material fact within the jurisdiction of the United States Customs Service, in violation of 18 U.S.C. § 1001. Appellants contend that the Federal Magistrate's Act, 28 U.S.C. § 636(b) (3) (1982 and Supp. III 1985) (the Act), does not permit a federal magistrate who is not an Article III judge to oversee jury selection over a defendant's objection in a federal criminal trial. They also argue that constitutional questions arise from any statutory interpretation that permits a magistrate to conduct voir dire. The district court exercised jurisdiction in this case pursuant to 18 U.S.C. § 3231 and this court has jurisdiction under 28 U.S.C. § 1291. As a panel of this court we may not reconsider the decisions of this circuit in United States v. Peacock, 761 F.2d 1313 (9th Cir. 1985) cert. denied, 474 U.S. 847 (1986) and in United States v. Bezold, 760 F.2d 999 (9th Cir. 1985) cert. denied, 474 U.S. 1063 (1986); therefore we affirm the convictions.

DISCUSSION

The Local Rules of the Hawaii district court permit federal magistrates to preside over jury voir dire when appointed by a federal district judge. See Bezold, 760 F.2d at 1001; D.H. Mag.R. VI G. The district court possesses this capability pursuant to the "additional duties" provision of the Act, 28 U.S.C. § 636(b) (3).¹  Here, District Judge Fong appointed Magistrate Conklin to preside over jury voir dire. Appellants filed a written objection to the magistrate conducting voir dire. The jury was picked on November 2, 1987 and appellants did not object to the magistrate's actions or decisions regarding any questions asked or jurors selected or removed. Appellants do not contend that any specific error occurred during voir dire; they base their objections on an analysis of the Act's provisions and on alleged violations of Article III.

This court in Bezold and later in Peacock settled that the provisions of the Act conclusively authorize magistrate-conducted voir dire. Peacock, 761 F.2d at 1317-18; Bezold, 760 F.2d at 1002-03. We cannot reexamine this precedent in the absence of any intervening Supreme Court decision addressing this issue. Cf. United States v. Lancellotti, 761 F.2d 1363, 1366 (9th Cir. 1985) (reexamining ninth circuit precedent after concluding that the prior reasoning was rejected in an intervening Supreme Court decision). Although a majority of the en banc court in the fifth circuit has now come to a different conclusion than that reached in this circuit, see United States v. Ford, 824 F.2d 1430, 1435-37 (5th Cir. 1987) (en banc) cert. denied, 108 S. Ct. 741 (1988), other circuits have agreed with the conclusion of Bezold and Peacock. See United States v. Garcia, 848 F.2d 1324 (2nd Cir. 1988); United States v. Rivera-Sola, 713 F.2d 866 (1st Cir. 1983).

Appellants argue that we should reconsider our decisions in light of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). The Court in Batson reaffirmed the importance of jury selection and expressed special concern regarding the selection of an impartial jury. Batson, 476 U.S. at 86-88, 99-100 n. 24. While jury selection is an important part of a fair trial, Gray v. Mississippi, --- U.S. ----, 107 S. Ct. 2045, 2056 (1987), this statement does not mean that a trial necessarily begins with jury selection. Cf. Press-Enterprise Co. v. Superior Court of Calif., 464 U.S. 501, 509 n. 8, 104 S. Ct. 819, 823 n. 8 (1984) (for purposes of double jeopardy, trial begins when jurors are sworn).

Appellants assert that the practical problems presented by a magistrate's presiding over jury selection preclude any meaningful Batson challenge. They argue that a district judge will be unable to correct a Batson error without reopening and reconducting the jury selection process. De novo review of jury voir dire conducted by a magistrate has been held to be essential to guarantee the Article III and due process rights of the litigant. Peacock, 761 F.2d at 1318; Bezold, 760 F.2d 1001-1002; see also United States v. Radditz, 447 U.S. 667, 673-76 (1980).

Here, however, appellants raised no Batson challenge, nor did they object to any question asked or juror excused by the magistrate. Appellants "do not complain about the makeup of the panel or assert that they lacked an opportunity for full review by the district court of any problems which [might have arisen] during voir dire." Bezold, 760 F.2d at 1003. The possible problems about which appellants speculate are not presented by this case. Therefore, we decline to decide whether, in another case in which Batson objections actually occur, constitutional concerns would be implicated. In the circumstances of this case, where appellants objected to the use of the magistrate to conduct jury voir dire, but where appellants raise no specific challenge to any of the magistrate's actions, we continue to follow sound ninth circuit precedent as outlined in Bezold and Peacock. AFFIRMED.