                                                                          PUBLISH

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT          FILED
                         ________________________________ COURT OF APPEALS
                                                      U.S.
                                                        ELEVENTH CIRCUIT
                                                             09/21/99
                                    No. 98-4562
                                                          THOMAS K. KAHN
                         ________________________________     CLERK
                            D.C. Docket No. 97-CR-677-DLG


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

       versus

JULIET MARAGH,

                                                           Defendant-Appellant.


    ____________________________________________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
    ____________________________________________________________

                                   (September 21, 1999)

Before BARKETT, Circuit Judge, and RONEY, Senior Circuit Judge.*


________________
*This decision is rendered by a quorum, due to the retirement of then-Chief Judge Hatchett on May
14, 1999. See 28 U.S.C. § 46(d).
        SUPPLEMENTAL OPINION ON PETITION FOR REHEARING

PER CURIAM:

      In United States v. Maragh, No. 98-4562, 174 F.3d 1202 (11th Cir. 1999), we

held that in order to give a magistrate judge the authority to conduct voir dire of the

jury in a criminal case, the consent of the defendant must be reflected in the record.

We adhere to that decision except to the extent that it indicated we were applying the

plain error standard of review.

      Upon further consideration, we have examined the question of whether this

decision could be made in this case in view of the fact that there was no objection to

the conduct of voir dire by the magistrate judge in this case. We do not repeat here

the parts of the opinion that serve as a backdrop for this supplemental opinion. The

failure to object here raises two issues: first, whether the plain error standard of

review bars relief to the defendant on this appeal; and second, whether the failure to

object is sufficient to give the magistrate judge the authority to conduct the voir dire.

      The plain error argument goes like this: no objection was made to the

procedure in the district court; this court can reverse only if there was plain error;

there can be no plain error in this case because there is no settled law that consent by

the defendant’s counsel, without the record reflecting that it was also the consent of

the defendant, was insufficient to authorize the magistrate judge to proceed with the


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voir dire. Thus, the argument is that even if we are right as to what the record must

show, the defendant cannot get relief in this case because that was not clear law, and

therefore not plain error.

      We reject this argument following the lead of the United States Supreme Court

in Peretz v. United States, 501 U.S. 923 (1991). The only difference between that

case and this one is that there the record clearly reflected that the defendant, not just

counsel, consented to the conduct of the voir dire by the magistrate judge. In that

case, however, as here, there was no objection to the conduct of the voir dire by the

defendant or his counsel. Not only had there been no decision on whether the consent

of the defendant was sufficient, but the Supreme Court had directly held two years

before that a magistrate judge did not have jurisdiction to conduct jury voir dire in a

felony trial. See Gomez v. United States, 490 U.S. 858, 873-76 (1989). Nevertheless,

the Court addressed the merits of the argument and held that as long as a defendant

consented, a magistrate judge, rather than an Article III judge, could conduct voir dire

in a felony case under 28 U.S.C. § 636(b)(3). See Peretz, 501 U.S. at 935-36. “In

sum, the structure and purpose of the Federal Magistrates Act convince us that

supervision of voir dire in a felony proceeding is an additional duty that may be

delegated to a magistrate judge under 28 U.S.C. § 636(b)(3) [28 U.S.C.S. § 636(b)(3)],

if the litigants consent.” Peretz, 501 U.S. at 935 (footnote omitted). This is a decision


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that would not have been considered if the plain error standard of review had been

applied.

      Justice Scalia endorsed this procedure in a dissent by reasoning that the only

way this issue would ever be presented for review is when there is no objection. We

quote Justice Scalia at length because it specifically sets forth the rationale for not

strictly applying the plain error standard of review in this case.

             As a general matter, of course, a litigant must raise all issues and
      objections at trial. See Freytag v. Commissioner, 501 U.S. 868, 894-895,
      111 S.Ct. 2631, 2646-2647, 115 L.Ed.2d 764 (SCALIA, J., concurring
      in judgment). For criminal proceedings in the federal courts, this
      principle is embodied in Federal Rule of Criminal Procedure 51, which
      requires ‘a party, at the time the ruling or order of the [trial] court is
      made or sought, [to] mak[e] known to the court the action which that
      party desires the court to take or that party's objection to the action of the
      court and the grounds therefor.’
             Rule 51's command is not, however, absolute. One of the hoariest
      precepts in our federal judicial system is that a claim going to a court's
      subject-matter jurisdiction may be raised at any point in the litigation by
      any party. See Freytag, at 896, 111 S.Ct., at 2648 (SCALIA, J.,
      concurring in judgment). Petitioner seeks to invoke that exception here,
      relying on our statement in Gomez that the Magistrate lacked
      ‘jurisdiction to preside’ over the voir dire in that case, 490 U.S., at 876,
      109 S.Ct., at 2248. But, as Judge Easterbrook has aptly observed, ‘
      “jurisdiction” ... is a many-hued term.’ United States v. Wey, 895 F.2d
      429, 431 (CA7), cert. denied, 497 U.S. 1029, 110 S.Ct. 3283, 111
      L.Ed.2d 792 (1990). We used it in Gomez as a synonym for ‘authority,’
      not in the technical sense involving subject-matter jurisdiction. The
      judgment here is the judgment of the District Court; the relevant
      question is whether it had subject-matter jurisdiction; and there is no
      doubt that it had. The fact that the court may have improperly delegated
      to the Magistrate a function it should have performed personally goes to
      the lawfulness of the manner in which it acted, but not to its jurisdiction

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to act.
       This venerable exception to the contemporaneous-objection rule
being inapplicable here, petitioner plainly forfeited the right to advance
his current challenges to the Magistrate's role. In certain narrow
contexts, however, appellate courts have discretion to overlook a trial
forfeiture. The most important of these is described in Federal Rule of
Criminal Procedure 52(b): In criminal cases, an appellate court may
notice ‘errors or defects’ not brought to the attention of the trial court if
they are ‘plain’ and ‘affec[t] substantial rights.’ See United States v.
Young, 470 U.S. 1, 15, and n.12, 105 S.Ct. 1038, 1046, and n.12, 84
L.Ed.2d 1 (1985). Petitioner's contention that this case falls into that
exception comes up against our admonition that Rule 52(b) applies only
to errors that are obvious as well as significantly prejudicial. See, e.g.,
United States v. Frady, 456 U.S. 152, 163, and nn.13, 14, 102 S.Ct.
1584, 1592, and nn.13, 14, 71 L.Ed.2d 816 (1982). The error alleged
here was anything but obvious. At the time this case was tried, the
Second Circuit had held that a magistrate was authorized to conduct
felony voir dire even if the defendant objected, see United States v.
Garcia, 848 F.2d 1324 (1988), rev'd sub nom. Gomez v. United States,
490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). No Circuit had
held that it was error for a magistrate to conduct voir dire where the
defendant consented. Perhaps the best indication that there was no
‘plain’ error, of course, is that five Justices of this Court today hold that
there was no error at all.
       Even when an error is not ‘plain,’ this Court has in extraordinary
circumstances exercised discretion to consider claims forfeited below.
See, e.g., Glidden Co. v. Zdanok, 370 U.S. 530, 535-536, 82 S.Ct. 1459,
1464-1465, 8 L.Ed.2d 671 (1962) (opinion of Harlan, J.); Grosso v.
United States, 390 U.S. 62, 71-72, 88 S.Ct. 709, 715, 19 L.Ed.2d 906
(1968); Hormel v. Helvering, 312 U.S. 552, 556-560, 61 S.Ct. 719,
721-723, 85 L.Ed. 1037 (1941). In my view, that course is appropriate
here. Petitioner's principal claims are that the Federal Magistrates Act
does not allow a district court to assign felony voir dire to a magistrate
even with the defendant's consent, and that in any event the consent here
was ineffective because given orally by counsel and not in writing by the
defendant. By definition, these claims can be advanced only by a litigant
who will, if ordinary rules are applied, be deemed to have forfeited them:
A defendant who objects will not be assigned to the magistrate at all.

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      Thus, if we invariably dismissed claims of this nature on the ground of
      forfeiture, district courts would never know whether the Act authorizes
      them, with the defendant's consent, to refer felony voir dire to a
      magistrate, and, if so, what form the consent must take. Cf. 18 U.S.C.S.
      3401(b) (defendant's consent to magistrate in misdemeanor trial must be
      in writing).
             Given the impediments to the proper assertion of these claims, I
      believe we are justified in reaching the statutory issue today to guide the
      district courts in the future performance of their duties. It is not that we
      must address the claims because all legal questions require judicial
      answers, cf. Valley Forge Christian College v. Americans United for
      Separation of Church and State, Inc., 454 U.S. 464, 489, 102 S.Ct. 752,
      767, 70 L.Ed.2d 700 (1982); Webster v. Doe, 486 U.S. 592, 612-613,
      108 S.Ct. 2047, 2058-2059, 100 L.Ed.2d 632 (1988) (SCALIA, J.,
      dissenting), but simply that the relevant rules and statutes governing
      forfeiture, as we have long construed them, recognize a limited
      discretion which it is eminently sensible to exercise here.

Peretz, 501 U.S. at 953-55(footnote omitted).

      The Supreme Court has consistently endorsed appellate jurisdiction to consider

fundamental judicial administration without regard to the contemporaneous objection

rule. In Glidden Co. v. Zdanok, 370 U.S. 530 (1962), which involved a challenge to

what petitioners claimed was an Article I judge (Court of Claims) performing an

Article III function (sitting by designation on the U.S. Court of Appeals), the Court

reached the issue despite its not having been raised below. It stated that

      [W]hen the statute claimed to restrict authority is not merely technical
      but embodies a strong policy concerning the proper administration of
      judicial business, this Court has treated the alleged defect as
      'jurisdictional' and agreed to consider it on direct review even though not
      raised at the earliest practicable opportunity.


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Glidden, 370 U.S. at 535-36.

      The Petition for Rehearing of the United States makes two arguments that

would, on the merits, require an affirmance of the conviction insofar as the conduct

of the jury voir dire by the magistrate judge is concerned. First, it is argued that the

consent of counsel for the defendant is sufficient to comply with the mandate of

Peretz, and that the defendant is bound by that consent. Second, it is argued that the

failure of the defendant to object to the voir dire by the magistrate judge constituted

a waiver of the right to have an Article III judge preside over jury selection. In

respect to these arguments, we adhere to our prior opinion, holding that the record

must reflect the consent of the defendant herself.

      The Petition for Rehearing is DENIED.




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