Hoo v. United States, 484 U.S. 1035

Hoo v. United States

484 U.S. 1035

SCOTUS

1988

Check Treatment

HOO v. UNITED STATES

No. 87-5620

C. A. 2d Cir.

484 U.S. 1035

panel of the Fifth Circuit rejected this argument.

797 F. 2d 1329 (1986), cert. denied, .

The case was accepted for rehearing en banc, and in a split decision the full court affirmed, though on other grounds. It ruled that the Act does not grant a district court the power to delegate jury selection to a magistrate as an “additional dut[y]” under 28 U. S. C. § 636(b)(3), and that the opposite construction of this section would pose “grave constitutional issues.”

824 F. 2d 1430, 1435 (1987). Nonetheless, it affirmed the conviction because petitioner had failed to object to this procedure at trial and the violation did not amount to plain error because it did not render the trial fundamentally unfair. Judge Jolly concurred in the result, concluding that under the Act and the Constitution a magistrate may conduct voir dire at a jury trial unless the defendant objects. . Judge Rubin dissented, joined by three other judges, concluding that it does not violate either the Act or the Constitution for a magistrate to conduct the voir dire proceedings in a criminal trial. .

If the decision below is incorrect, and this use of the magistrate violates either the Act or the Constitution, then it is not obvious that this violation can be dismissed under the “plain error” doctrine. And the position of the Fifth Circuit on this issue conflicts with two decisions of the Ninth Circuit.

United States v. Peacock, 761 F. 2d 1313, 1317-1319 (1985), cert. denied, ; , cert. denied, . See also (dictum). The split among the Circuits on this issue warrants our granting certiorari.

No. 87-5620. HOO v. UNITED STATES. C. A. 2d Cir. Certiorari denied.

JUSTICE WHITE, dissenting.

The issue presented by this petition for certiorari is what is the correct test for determining if prosecutorial preindictment delay amounts to a violation of the Due Process Clause of the Fifth Amendment. See

United States v. Lovasco, 431 U. S. 783 (1977). In this case, the petitioner argued that he was prejudiced by the prosecutorial delay in filing the indictment against him, for it was filed 13 days after he turned 21 years of age, and consequently he was ineligible for the protections of the Federal Juvenile Delin-quency Act, 18 U. S. C. § 5031 et seq. The Second Circuit held that there was no due process violation because petitioner “made no showing of an improper prosecutorial motive.” . Other Circuits have similarly required a showing of prosecutorial misconduct designed to obtain a tactical advantage over the defendant or to advance some other impermissible purpose in order to establish a due process violation. ; , cert. denied, ante, pp. 843, 857; , cert. denied, , ; . Two Circuits, however, have concluded that intentional misconduct is not the sine qua non for a due process violation from prosecutorial preindictment delay, and instead they hold that the proper inquiry is to balance the prejudice to the defendant against the Government‘s justification for delay. ; . Exemplifying the significant disagreement in the lower courts over the proper test, panels in the Fifth and Seventh Circuits have acknowledged conflicts between decisions from their own Circuits on this issue. , cert. denied, ante, p. 956; . The continuing conflict among the Circuits on this important question of constitutional law requires resolution by this Court; I would grant certiorari.