Unpublished Disposition, 904 F.2d 711 (9th Cir. 1989)

MEMORANDUM^* 

Juan Rolando Perez-Pachari appeals from his conviction for eight counts of conspiring to import and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 952(a), 963 and 21 U.S.C. §§ 841(a) (1), 846. Helmut Lindner-Rivera, Perez-Pachari's co-defendant, appeals from his conviction for six counts of conspiring to import and possession with the intent to distribute cocaine in violation of 21 U.S.C. §§ 952(a), 963 and 21 U.S.C. §§ 841(a) (1), 846. The appeals were consolidated for oral argument. In light of Gomez v. United States, 109 S. Ct. 2237 (1989) and United States v. France, 886 F.2d 223 (9th Cir. 1989), cert. granted, 58 U.S.L.W. 3677 (1990),^**  we vacate and remand.

FACTS

In 1987, appellants were arrested and charged with conspiracy and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 952(a), 963 and 21 U.S.C. §§ 841(a) (1), 846. Prior to trial, pursuant to its local custom and its interpretation of the Federal Magistrates Act, 28 U.S.C. § 636(b) (3), the district court delegated the task of conducting voir dire to a federal magistrate. The district judge was available to hear all objections but did not himself conduct jury selection. To this arrangement, Perez-Pachari filed a written objection though he did not raise this objection with the district judge. Lindner-Rivera made no objections whatsoever. The case proceeded to trial, and both Perez-Pachari and Lindner-Rivera were convicted. From these convictions, they appealed.

On June 12, 1989, the Supreme Court decided Gomez v. United States, 109 S. Ct. 2237 (1989), whose mandate became final on July 7, 1989. In light of the Gomez Court's interpretation of the Federal Magistrates Act, 28 U.S.C. § 636(b) (3), at oral argument, June 30, 1989, this court requested counsel to submit simultaneous letter briefs discussing Gomez and its implications. Based upon Gomez and this court's subsequent opinion in France v. United States, 886 F.2d 223 (9th Cir. 1989), cert. granted, 58 U.S.L.W. 3677 (1990), we vacate the convictions and remand. Because we find Gomez and France dispositive of this case, we need not address the substantive issues upon which this appeal was originally based.

DISCUSSION

In Gomez, petitioner challenged the power of a federal magistrate to conduct voir dire in felony trials under the Federal Magistrates Act, 28 U.S.C. § 636(b) (3). Resting its decision solely on a statutory construction of the Act, the Supreme Court held that the Act did not authorize magistrates to conduct voir dire in felony trials. According to the Court, voir dire was a duty that only the district court could perform because, even with an established district court review procedure, the Court "harbor [ed] serious doubts that a district judge could review this function meaningfully." 109 S. Ct. at 2247.

In its letter brief, the government first attempts to distinguish Gomez. It argues that the review procedure in this case differed from that in Gomez because here the district judge was available immediately and at all times to hear objections whereas in Gomez review of the magistrate's voir dire was conducted after an eight day delay. Further, it argues, Gomez should not be applied retroactively.

In United States v. France, this court addressed and rejected these arguments. The district judge's proximity to the magistrate and his availability to the parties are irrelevant to Gomez. This is so because the Magistrates Act simply does not confer upon magistrates the power to conduct voir dire, and meaningful review by a district judge of a magistrate's conduct of jury selection does not make legal such an attempted delegation of capacity. See France, 886 F.2d at 226 n. 1; see also Gomez, 109 S. Ct. at 2247. We have also determined that Gomez applies to all cases not yet final as of July 7, 1989, the date the Gomez mandate issued. Id. at 227. Because this case was not final as of July 7, 1989, Gomez governs.

The government next argues that the appellants consented to the voir dire because they did not object. To the extent there were any objections, it is argued, they were not preserved because they were not brought before the district judge as provided by the local rules of the district court.

This court has already determined that the appellants' failure to object or preserve their objections does not serve to avoid implementation of Gomez's mandate. France, 886 F.2d at 227-228. In any event, Perez-Pachari did object to the magistrate's conducting of jury selection, thereby, placing the magistrate, and through him the court, on notice. That neither appellant communicated such objection directly or subsequently to the district judge is not dispositive. The subject matter of the objection remained of record. In this situation, we are faced with a strong pronouncement by the Supreme Court that, in the allocation of responsibility between Article III judges and statutorily created court officers, Congress simply has not authorized magistrates to try criminal felony cases, of which jury selection is a most important stage. We do observe that the local rules of the district court do not indicate that failure to file objections bars a subsequent appeal. See Local Rules 401-8(f); 404-1; 404-2 of Rules of the United States District Court for the District of Hawaii. Therefore, even if appellants had lodged no objection, appellants merely would have waive their right to challenge factual issues, not legal ones. United States v. Bernhardt, 840 F.2d 1441, 1444-45 (9th Cir.), cert. denied, 109 S. Ct. 389 (1988); see also U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 (9th Cir. 1985). While, in hindsight we do not know what, if any, tactical objective led to one defendant's objection and the other's silence, an objection was presented to the court, and was rejected. We see no qualitative need for more. Cf. United States v. Hashimoto, 878 F.2d 1126, 1132-33 (9th Cir. 1989). For these reasons, we consider this issue on appeal.

The government also urges us not to consider appellants' invocation of Gomez in this appeal because the appellants did not raise the issue in their opening briefs. We find no merit in this argument. Generally, as the government correctly insists, this court holds appellants to the issues raised in the opening brief. See Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 862 (9th Cir. 1982). We are not, however, inexorably bound to this general rule when following it excuses unduly harsh results or ignores an issue of substantial public interest. See id.; Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1306 n. 1 (9th Cir. 1970).

In this case, failing to apply the clear mandates of Gomez and of our own recent pronouncement would effectively prevent appellants from invoking what the Supreme Court has termed " [a]mong those basic trial rights that ' "can never be treated as harmless...." ' " Gomez 109 S. Ct. at 2248 (quoting Gray v. Mississippi, 481 U.S. 648, 668 (1987) (quoting Chapman v. California, 386 U.S. 18, 23 (1967))). Because we cannot ignore an issue which the highest Court considered fundamental, we have little justification for failing, and no inclination to avoid, consideration of this issue. Furthermore, the government has had full opportunity to address what is now law, and has done so. Therefore, the policy argument against permitting new matters in an appellant's reply brief is not at work. See Knighten v. Commissioner of Internal Revenue, 702 F.2d 59, 60 n. 1 (5th Cir.) (per curiam), cert. denied, 464 U.S. 897 (1983).

Finding that the rule in Gomez invalidates the selection of the jury and hence voids the subsequent trial, convictions and judgments, we therefore vacate the judgments, set aside the convictions, and sentences, and remand the case to the district court for such further proceedings as are consistent with the foregoing opinion.

VACATED AND REMANDED.