                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 06-35021
                Plaintiff-Appellee,           D.C. Nos.
               v.                        CV-04-00162-DWM
JUSTIN METUCHEN GAMBA,                    CR-01-00068-DWM
             Defendant-Appellant.
                                             OPINION

    On Remand from the United States Supreme Court

                   Filed August 28, 2008

    Before: Alfred T. Goodwin, Raymond C. Fisher, and
            Milan D. Smith, Jr., Circuit Judges.

           Opinion by Judge Milan D. Smith, Jr.




                           11893
11896                UNITED STATES v. GAMBA


                           COUNSEL

Daniel R. Wilson, Measure, Robbin & Wilson, P.C., Kalis-
pell, Montana, for the defendant-appellant.

Joshua S. Van de Wetering, Assistant United States Attorney,
Missoula, Montana, for the plaintiff-appellee.


                            OPINION

MILAN D. SMITH, JR., Circuit Judge:

   Justin Metuchen Gamba was convicted and sentenced for
witness tampering in violation of 18 U.S.C. § 1512(b). Gamba
appeals the district court’s denial of his petition for relief filed
under 28 U.S.C. § 2255. Specifically, Gamba argues that the
district court erred in denying his § 2255 motion because it
did not find Gamba’s appellate counsel ineffective when he
failed to challenge on appeal the magistrate judge’s jurisdic-
tion to preside over closing argument without Gamba’s per-
sonal consent. We affirm because the magistrate judge had
proper jurisdiction over closing argument at Gamba’s trial.
Defense counsel may waive a defendant’s right to have an
Article III judge conduct closing argument without the defen-
                   UNITED STATES v. GAMBA                 11897
dant’s express, personal consent where the decision is one of
trial tactics or strategy.

         FACTS AND PROCEDURAL HISTORY

   Gamba was charged with two counts of making false state-
ments in violation of 18 U.S.C. § 1001, two counts of witness
tampering in violation of 18 U.S.C. § 1812(b), and one count
of being an accessory after the fact in violation of 18 U.S.C.
§ 3. All of Gamba’s charges arose from his attempts to foil
the prosecution of his girlfriend on drug and gun charges. He
pleaded not guilty to all charges and the case was set for jury
trial. Gamba retained attorney Ed Sheehy to represent him at
trial.

   Gamba’s trial lasted one day. After testimony concluded,
Sheehy, without Gamba being present, and the Assistant
United States Attorney, Joshua Van de Wetering, convened in
the district court judge’s chambers to finalize jury instruc-
tions. After the instructions were finalized, Chief District
Judge Molloy informed the parties that he had to pick his wife
up from the hospital and suggested that the trial reconvene
after he returned. The relevant portion of the trial transcript
reads as follows:

    THE COURT:         Let me tell you what the problem
                       is that I’ve got. I’ve got to pick my
                       wife up at the hospital at 2:30 and
                       run her home and then come back
                       here. So what I’d like to do, if at
                       all possible—and—shoot, it will
                       be—2:30, make sure you’re here
                       at 2:30, because that’s when it will
                       be. And it just may delay me a lit-
                       tle bit. Do you have any objec-
                       tion?
11898             UNITED STATES v. GAMBA
                     One thing that I could do is have
                     Judge Erickson sit in on the argu-
                     ment and submit the case to the
                     jury. I mean, I can instruct the
                     jury, but then he would just pre-
                     side and give it to the jury.

    MR. SHEEHY: Yeah, I have no objection to that.

    THE COURT:       I’ll leave it up to you guys and I
                     won’t force you, I just have to —

    MR. SHEEHY: I understand.

    THE COURT:       If they did things the way I try and
                     run things, I could go over, pick
                     her up and be back in half hour.

    MR. SHEEHY: I understand what you’re talking
                about; I have no problem doing
                that.

    MR.VAN de WETERING:
                I think that’s a great idea.

(Whereupon, the Court picked up the phone and had tele-
phone conversation with Magistrate Judge Erickson’s assis-
tant.)

    THE COURT:       So is that all right with you guys?

    MR SHEEHY:       Yeah.

    THE COURT:       Is that all right with the defendant?

    MR. SHEEHY: Yeah, he won’t care.

    THE COURT:       So here’s what we’re going to do
                     . . . . I’ll go in, instruct the jury,
                   UNITED STATES v. GAMBA                11899
                      you get on your opening, you on
                      yours and, hopefully, we can get it
                      done. But if we’re running out of
                      time at 2:30, I’ll take a break and
                      then ask Judge Erickson to come
                      in and just sit there for the balance
                      of the argument and submit the
                      instructions and Mary will swear
                      in the bailiff and then send them
                      off.

   Shortly thereafter, the trial reconvened in the courtroom
with Gamba and the jury present. Judge Molloy addressed the
jury:

    THE COURT:        I am going to have to leave at 2:30
                      because my wife had a medical
                      procedure and I have to pick her
                      up. So Judge Erickson, who is the
                      magistrate judge, will come in and
                      preside over the arguments of
                      counsel in this case. They’ll start
                      while I’m here, but we may take a
                      real short break so that I can step
                      off and he can come in. The par-
                      ties have consented to that.

(Emphasis added). Neither Gamba nor his counsel raised any
objection to Judge’s Molloy’s announcement.

   Judge Molloy exited the courtroom after instructing the
jury and after counsel for the government had begun his clos-
ing argument. Magistrate Judge Erickson took the bench. Nei-
ther Gamba nor his counsel objected to the presence of
Magistrate Judge Erickson, who made no comments or rul-
ings during the time he presided over the closing arguments.
At the conclusion of closing argument, Magistrate Judge
Erickson submitted the case to the jury. The jury found
11900               UNITED STATES v. GAMBA
Gamba guilty of witness tampering in violation of 18 U.S.C.
§ 1812(b) and Gamba was later sentenced to thirty-three
months imprisonment. Gamba did not object to the magistrate
judge’s presiding over closing argument after the jury handed
down its verdict or when he was sentenced by the district
court.

   Gamba’s petition for relief under 28 U.S.C. § 2255 comes
after this court denied his first appeal for insufficiency of evi-
dence. See United States v. Gamba, 76 F. App’x 209 (9th Cir.
2003). The district court denied Gamba’s § 2255 motion on
the grounds that Gamba’s counsel did not render ineffective
counsel by consenting to the magistrate judge presiding over
closing argument or by failing to raise the magistrate judge
consent issue on appeal, but granted Gamba a certificate of
appealability on the magistrate jurisdiction issue pursuant to
28 U.S.C. § 2253(c).

   On April 11, 2007, we affirmed the district court’s holding
that the magistrate judge had proper jurisdiction over closing
arguments. United States v. Gamba, 483 F.3d 942 (2007). The
Supreme Court vacated our decision and remanded for further
consideration in light of Gonzalez v. United States, 128 S. Ct.
1765 (2008). See Gamba v. United States, 128 S. Ct. 2472
(2008) (mem.). At our request, the parties submitted supple-
mental briefing on the effect of Gonzalez on this case. The
parties did not raise any questions of fact, and both parties
agree that Gonzalez supports the district court’s decision. We
now reconsider this case in light of Gonzalez.

                        JURISDICTION

  We have jurisdiction pursuant to 28 U.S.C. §§ 2253 and
2255.

                  STANDARD OF REVIEW

  Whether the district court’s delegation of authority to a
magistrate judge to preside over closing argument is proper
                       UNITED STATES v. GAMBA                       11901
under the Federal Magistrates Act is a question of law subject
to de novo review. United States v. Colacurcio, 84 F.3d 326,
328 (9th Cir. 1996). The district court’s denial of a 28 U.S.C.
§ 2255 motion is also subject to de novo review. United States
v. Ware, 416 F.3d 1118, 1120 (9th Cir. 2005).

                            DISCUSSION

  We address the issue of whether a district court judge may
lawfully appoint a magistrate judge to preside over closing
argument at a felony criminal trial if the defendant’s counsel
has, for trial tactic or legal strategy purposes and without the
defendant’s express, personal consent, agreed to such appoint-
ment.1

  [1] “The Federal Magistrates Act, 28 U.S.C. §§ 631-39,
governs the jurisdiction and authority of federal magistrates.”
United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir.
2003) (en banc). The Act allows the district court to assign
magistrate judges certain enumerated duties, as well as any
“additional duties as are not inconsistent with the Constitution
and laws of the United States.” 28 U.S.C. § 636(b)(3).

   The Supreme Court initially examined the scope of the “ad-
ditional duties” provision of the Act in Gomez v. United
States, 490 U.S. 858 (1989), in the context of whether a mag-
istrate judge had jurisdiction to preside over voir dire in a fel-
ony trial. In Gomez, the Court determined the magistrate
judge had exceeded his jurisdiction by conducting voir dire in
  1
    While we have examined issues involving consent and magistrate juris-
diction, we have never specifically addressed the question posed in this
appeal. See United States v. Reyna-Tapia, 328 F.3d 1114, 1119 (9th Cir.
2003) (en banc) (holding a magistrate judge may conduct plea colloquies
pursuant to Federal Rule of Criminal Procedure 11 if defendant consents);
United States v. Sanchez-Sanchez, 333 F.3d 1065, 1067 (9th Cir. 2003)
(finding the magistrate judge lacked authority to conduct a revocation pro-
ceeding because neither defendant nor his counsel consented to allowing
the magistrate judge to preside).
11902               UNITED STATES v. GAMBA
a felony trial over the defendant’s objection. Id. at 876.
Because the Court found no reference to jury selection in the
Federal Magistrates Act or its legislative history, it deter-
mined Congress did not intend to include jury selection within
the § 636(b)(3) “additional duties” provision. Id. at 871-76.

   Two years later, faced with a conflict among the circuits in
interpreting Gomez and applying the § 636(b)(3) catch-all
“additional duties” provision, the Court decided Peretz v.
United States, 501 U.S. 923 (1991). In Peretz, the petitioner
and his counsel attended a pretrial conference, at which the
district judge asked if there was any objection to a magistrate
judge picking the jury and conducting voir dire. Id. at 925.
The petitioner’s counsel stated, “I would love the opportuni-
ty,” and before jury selection, counsel for the petitioner and
his codefendant assured the magistrate judge that the magis-
trate judge had their clients’ consent to proceed. Id. The Court
held that the delegation was proper, and stated that the ratio-
nale of Gomez “does not apply when the defendant has not
objected to the magistrate’s conduct of the voir dire.” Id. at
933 (collecting cases) (emphasis added). The Court further
noted that the holding in Gomez was “carefully limited to the
situation in which the parties had not acquiesced at trial to the
magistrate’s role” and commented that courts had “uniformly
rejected challenges to a magistrate’s authority to conduct the
voir dire when no objection to his performance of the duty
had been raised in the trial court.” Id. at 927-28.

   After extolling the now essential role played by magistrate
judges in helping district court judges handle their “bloated
dockets,” id. at 928 (internal quotation marks omitted), and
concluding that with the defendant’s consent the constitu-
tional analysis is successfully negotiated, it noted:

    The generality of the category of “additional duties”
    indicates that Congress intended to give federal
    judges significant leeway to experiment with possi-
    ble improvements in the efficiency of the judicial
                    UNITED STATES v. GAMBA                 11903
    process that had not already been tried or even fore-
    seen. If Congress had intended strictly to limit these
    additional duties to functions considered in the com-
    mittee hearings or debates, presumably it would have
    included in the statute a bill of particulars rather than
    a broad residuary clause. Construing this residuary
    clause absent concerns about raising a constitutional
    issue or depriving a defendant of an important right,
    we should not foreclose constructive experiments
    that are acceptable to all participants in the trial pro-
    cess and are consistent with the basic purposes of the
    statute.

Id. at 932-33.

   The Court also considered that no structural protections
provided by Article III were implicated by the procedure fol-
lowed in the case because “[t]he ultimate decision whether to
invoke the magistrate’s assistance is made by the district
court, subject to veto by the parties.” Id. at 937 (internal quo-
tation marks omitted). Furthermore, “[b]ecause the entire pro-
cess takes place under the district court’s total control and
jurisdiction, there is no danger that use of the magistrate
involves a congressional attemp[t] to transfer jurisdiction [to
non-Article III tribunals] for the purpose of emasculating con-
stitutional courts.” Id. (internal citations and quotation marks
omitted) (alterations in original). Finally, the Court held “that
permitting a magistrate to conduct the voir dire in a felony
trial when the defendant raises no objection is entirely faithful
to the congressional purpose in enacting and amending the
Federal Magistrates Act.” Id. at 940.

   [2] In Gonzalez, the Supreme Court reaffirmed Peretz and
held that counsel may consent to a magistrate judge presiding
over voir dire under § 636(b)(3) without the client’s express
consent. 128 S. Ct. at 1772. The Court held that “[t]aken
together, Gomez and Peretz mean that ‘the additional duties’
the statute permits the magistrate judge to undertake include
11904               UNITED STATES v. GAMBA
presiding at voir dire and jury selection provided there is con-
sent but not if there is an objection.” Id. at 1768. The Court
further explained that counsel could consent without his cli-
ent’s knowledge or approval because the choice of a magis-
trate judge over a district court judge at the jury selection
phase was a “tactical decision that is well suited for the attor-
ney’s own decision.” Id. at 1770.

   [3] This court applies a two-pronged test to determine
whether a duty, not specified in the Act, may be delegated to
a magistrate judge under the catch-all “additional duty” provi-
sion, § 636(b)(3). Reyna-Tapia, 328 F.3d at 1119. Under this
test, whether a duty designated to a magistrate judge falls
under § 636(b)(3), “depends, first and foremost, on whether
the parties have consented, and secondly, on whether the
additional duties bear some relation to the specified duties
that magistrate judges can perform.” Id. (citation and internal
quotation marks omitted). Gonzalez sheds light on the “con-
sent” prong of this test. Thus, with Gonzalez in mind, we
apply this two-pronged test below to determine whether it was
proper for the magistrate judge in this case to preside over
closing arguments.

                          A.   Consent

   [4] The central issue before this panel is the degree to
which a defendant himself must be involved in the decision
to allow a magistrate judge to preside over closing argument.
We hold that Sheehy’s decision to consent to Magistrate
Judge Erickson presiding over closing arguments without
Gamba’s express, personal consent, was lawful because Shee-
hy’s decision was made for tactical and strategic reasons.

   Gonzalez confirmed that defense counsel may waive cer-
tain rights of the accused as part of the trial strategy or tactics
without obtaining the accused’s express, personal consent.
See 128 S. Ct. at 1770. Gonzalez held that it was a “tactical
decision” for the defendant’s counsel to allow a magistrate
                    UNITED STATES v. GAMBA                 11905
judge to oversee voir dire. Id. The Court held that such a tacti-
cal decision did not require the defendant’s consent, explain-
ing: “The adversary process could not function effectively if
every tactical decision required client approval.” Id. (quoting
Taylor v. Illinois, 484 U.S. 400, 418 (1988)). In essence,
“[g]iving the attorney control of trial management matters is
a practical necessity.” Id.

   [5] Similarly, we have previously held that defense counsel
may waive an accused’s constitutional rights as a part of trial
strategy. In Wilson v. Gray, 345 F.2d 282, 286 (9th Cir.
1965), cert. denied, 383 U.S. 919 (1965), for example, we
determined that counsel may waive the accused’s Sixth
Amendment right to cross-examination and confrontation as
a matter of trial tactics or strategy. There, defense counsel
stipulated that a matter could be heard on the transcript of the
preliminary hearing, though each side retained the right to
produce additional evidence at trial. Id. at 287. We found that
this decision was “deliberately made as a matter of trial tactics
and strategy” because the accused was charged with assault
with a deadly weapon, and the transcript of the witness testi-
mony was “far more innocuous than the appearance of that
witness before the state judge could ever have been.” Id. at
287-88 & n.8. We concluded that in this instance the defen-
dant’s “right to cross examine and confront prosecution wit-
nesses was effectively waived by his counsel.” Id. at 288; see
also United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999)
(“We therefore join the majority of circuit courts of appeals
and hold that defense counsel may waive a defendant’s Sixth
Amendment right to confrontation where the decision is one
of trial tactics or strategy that might be considered sound.”).

   [6] Just as defense counsel made a tactical decision in Wil-
son and in Gonzalez, Sheehy’s decision to consent to Magis-
trate Judge Erickson presiding over Gamba’s closing
argument (to which Gamba made no objection when the
agreement was announced in open court) was also a strategic,
11906                   UNITED STATES v. GAMBA
tactical decision.2 As Sheehy explained in a letter to Gamba,
“if we had objected to Judge Erickson coming in and listening
to the closing arguments, rather than Judge Molloy, Judge
Molloy would have simply delayed the closing argument and
I did not see the merit in doing that.” Based on the record
before this court, it appears that Sheehy understood the
nuances of the case, observed the jury, and made a tactical
decision that a continuance would disadvantage his client.

   [7] The decision that counsel made here, to consent to a
magistrate judge presiding over closing arguments that would
otherwise have been delayed, is precisely the type of decision
that counsel is retained to provide. See Gideon v. Wainwright,
372 U.S. 335, 345 (1963) (emphasizing the importance of the
knowledge and skill counsel brings to bear when representing
a defendant in a criminal trial). After all, few defendants have
the training to permit them to appreciate the various legal con-
cerns at issue when a magistrate judge is delegated authority
to preside over closing argument. An attorney understands the
importance of consistency in a trial proceeding, therefore, he
is best equipped to make an immediate determination as to the
risks or benefits of accepting a magistrate judge as a substitute
for a district court judge.

   [8] We recognize, however, that certain fundamental rights
cannot be waived by a client’s counsel alone. The Supreme
Court in Florida v. Nixon, 543 U.S. 175 (2004), explained
that:

      [C]ertain decisions regarding the exercise or waiver
      of basic trial rights are of such moment that they
  2
   In Peretz, the Court also found that “a defendant has no constitutional
right to have an Article III judge preside at jury selection if the defendant
has raised no objection to the judge’s absence.” Peretz, 501 U.S. at 936.
Therefore, even if Gamba’s counsel had not consented to Magistrate Judge
Erickson’s supervision of closing argument, any failure to object to Judge
Molloy’s absence may have been deemed a waiver of Gamba’s right to an
Article III judge at a critical stage of his felony criminal proceeding.
                    UNITED STATES v. GAMBA                  11907
    cannot be made for the defendant by a surrogate. A
    defendant, this Court affirmed, has the ultimate
    authority to determine whether to plead guilty, waive
    a jury, testify in his or her own behalf, or take an
    appeal. Concerning those decisions, an attorney must
    both consult the defendant and obtain consent to the
    recommended course of action.

Id. at 187 (internal citations and quotation marks omitted).
Gonzalez reaffirmed Nixon’s distinction between certain fun-
damental rights and those rights that are “tactical” and do not
require the defendant’s express, personal consent. 128 S. Ct.
at 1770-71. Although the Court in Nixon did not provide an
exhaustive list of “basic trial rights,” the Court did not list the
right to an Article III judge presiding over closing argument
as one of those rights, and it cannot reasonably be said that
such a “right”—if there is one at all—rises to the level of such
basic and fundamental rights as deciding whether to plead
guilty or appeal one’s conviction, particularly in light of Per-
etz and Gonzalez. Thus, Gamba’s consent was not necessary
for Sheehy to agree to Magistrate Judge Erickson presiding
over closing argument.

   [9] We recognize, as the Court suggests in Gonzalez, that
after proceedings have commenced, the introduction of a
magistrate judge into some aspect of the trial’s proceedings
may give rise to substantive difficulties that would not simi-
larly arise during voir dire. 128 S. Ct. at 1771 (“This is not a
case where the magistrate judge is asked to preside or make
determinations after the trial has commenced and it is argu-
ably difficult or disruptive for a district judge to review any
objections that might have been made to the magistrate
judge’s rulings.”). No such substantive difficulties arose in
this case. The magistrate judge made no comments or rulings
during the time he presided over the closing arguments. And,
although jury instructions may come after closing arguments,
Fed. R. Crim. P. 30(c), the district judge made a point to
instruct the jury before leaving. In fact, it appears that the
11908               UNITED STATES v. GAMBA
magistrate judge in Gonzalez played a more active role in the
portion of the proceedings he presided over than the magis-
trate judge in this case. 128 S. Ct. at 1770 (“[T]he presiding
judge has significant discretion over the structure of voir dire.
The judge may ask questions of the jury pool or, as in this
case, allow the attorneys for the parties to do so.”).

                    B.   Additional Duties

   In addition to finding the required consent, we must deter-
mine whether closing argument “bear[s] some relation to the
specified duties” that magistrate judges are already authorized
to perform. Peretz, 501 U.S. at 930 (internal quotation marks
omitted). We hold that it does.

   [10] In Peretz, the Court found that the Act’s “additional
duties clause permits a magistrate to supervise jury selection
in a felony trial provided the parties consent.” Id. at 933
(internal quotation marks omitted). The Court reasoned that
the responsibility and importance of presiding over voir dire
at a felony trial are comparable to the duties and responsibility
that magistrate judges have in supervising entire civil and
misdemeanor trials. See id.; see also 28 U.S.C. § 636(a) (with
the parties’ consent, a district court judge may delegate the
supervision of entire civil and misdemeanor trials to a magis-
trate judge). The Peretz Court, as noted above, also encour-
aged the district courts to experiment in the use of magistrates
to carry out functions not previously considered so long as the
parties consent or the defendant fails to object. See 501 U.S.
at 932-33.

  [11] The reasoning the Court applied in Peretz equally
extends to closing argument. If a magistrate judge can con-
duct jury selection, then, logically, he can preside over closing
argument as well. A magistrate judge who conducts a civil or
misdemeanor trial necessarily must preside over closing argu-
ment. Closing argument clearly bears a relation to specified
duties magistrate judges are statutorily authorized to perform.
                    UNITED STATES v. GAMBA                 11909
Accordingly, where defense counsel consents to proceed
before a magistrate judge for tactical or strategic reasons,
there is neither a constitutional nor a statutory impediment to
delegating closing argument in criminal cases to magistrate
judges. See Reyna-Tapia, 328 F.3d at 1121.

            C.   Ineffective Assistance of Counsel

   [12] Since we hold that the magistrate judge had jurisdic-
tion in this case because of defense counsel’s consent due to
trial strategy or tactics and the close relationship between pre-
siding over closing argument and a magistrate judge’s statu-
torily specified duties, Sheehy’s conduct was not objectively
unreasonable and Gamba cannot make the necessary showing
of prejudice to show ineffective assistance of counsel. See Str-
ickland v. Washington, 466 U.S. 668 (1984).

                        CONCLUSION

   We affirm the district court’s denial of Gamba’s 28 U.S.C.
§ 2255 motion. Where the decision is one of trial tactics or
legal strategy, defense counsel may waive the defendant’s
right to have an Article III judge preside over closing argu-
ment without the defendant’s express, personal consent.

  AFFIRMED.
