                            UNITED STATES of America, Plaintiff-Appellee,

                                                      v.
                     Roosevelt DESIR, a.k.a. Roosevelt Woods, Defendant-Appellant.

                                                No. 98-5039.

                                      United States Court of Appeals,
                                              Eleventh Circuit.

                                               July 17, 2001.

Appeal from the United States District Court for the Southern District of Florida. (No. 97-14038-CR-KMM),
James C. Paine, Judge.

Before EDMONDSON, DUBINA and POLITZ*, Circuit Judges.

        DUBINA, Circuit Judge:

        Appellant Roosevelt Desir ("Desir") appeals his conviction for possession of crack cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We affirm in part and reverse in part.

                                             I. BACKGROUND
        Prior to trial, Desir filed a motion to suppress evidence obtained in a search of his vehicle. A
magistrate judge conducted an evidentiary hearing on the motion to suppress and issued a report and

recommendation recommending that the motion be denied. After hearing no objections to the magistrate
judge's report, the district court adopted the report and denied Desir's motion.
        The evidence adduced at trial and at the motion to suppress hearing revealed that on October 22,

1997, at 12:30 a.m., Ft. Pierce, Florida, Police Officer, Kevin Koehn ("Officer Koehn") stopped a gold
Pontiac driven by Desir. The Pontiac did not have a working tag light. Within a minute of the stop, Officer
Charles Davis ("Officer Davis") arrived as backup and also observed the non-working tag light. Officer

Koehn requested that Desir provide his driver's license, and Desir complied. While Officer Koehn was
writing a ticket, Officer Davis noticed Desir reaching down underneath the driver's seat. Officer Koehn then

asked Desir if he had anything illegal in the car, and Desir said he did not. Officer Koehn asked Desir if he

could search the car, and Desir consented. Officer Koehn saw a plastic bag with three and a half disks of

what appeared to be crack cocaine sticking out from under the driver's seat. Officer Koehn then arrested

Desir. After viewing the plastic bag with a flashlight through the front windshield, Officer Davis confirmed



    *
     Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
that the substance appeared to be crack cocaine. The bag was sticking out from underneath the driver's seat

in plain view. A laboratory analysis confirmed that the contents of the plastic bag contained 119 grams of
crack cocaine. It had a street value of between $11,900 and $23,800.

        After a one day jury trial, the jury retired to deliberate at 4:33 p.m. At approximately 6:00 p.m., the

lawyers and district judge agreed that the jury would be questioned as to whether they wanted to continue

deliberating later that evening or return on the following Friday to continue their deliberations. When the jury
indicated their preference to return on the following Friday, the district judge told the jury, in the presence

of Desir and his counsel, that he might not be able to travel back to Ft. Lauderdale on Friday, but a magistrate
judge would be present to do whatever was necessary. Specifically, the district judge stated as follows:

        I'm going to have to look at my Friday schedule. I think it is clear and I can probably come back.
        All right. If I cannot, I will ask Judge Lynch, who is our resident magistrate, to take whatever verdict
        or do what is necessary.
(R4:196). No one objected to the magistrate judge's taking "whatever verdict" or doing "what is necessary."

Id.
        During deliberations on the following Friday, the jury sent a request to rehear the testimony of Ft.
Pierce Police Officer Tammy Roane ("Officer Roane") concerning fingerprinting. After hearing arguments

from both parties, the magistrate judge decided that Officer Roane's testimony should not be read back to the
jury because it would unduly emphasize that portion of the testimony. Desir's counsel objected to the
magistrate judge's decision, but did not object to the magistrate judge making the decision. The magistrate

judge then instructed the jury that no transcript was available, and that the jurors should rely on their
collective memories. Shortly thereafter, the jury returned a verdict of guilty as charged.

                                                    II. ISSUES

        1. Whether Desir is entitled to a new trial because, without Desir's consent, a magistrate judge stood
in for the district judge during jury deliberations and, without contacting the district judge, responded to a
question from the jury, and then instructed the jury regarding its deliberations.

        2. Whether the district court properly denied Desir's motion to suppress evidence.

                                         III. STANDARDS OF REVIEW

         This court may directly review the merits of a challenge to a magistrate judge's authority to conduct
critical matters of a defendant's trial, even though the defendant failed to object to the procedure in the district

court. See United States v. Maragh, 189 F.3d 1315, 1316-17 (11th Cir.1999).
         This court reviews a district court's denial of a defendant's motion to suppress under a mixed standard

of review, reviewing the district court's findings of fact under the clearly erroneous standard and the district

court's application of law to those facts de novo. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir.2000).

                                               IV. DISCUSSION

         Looking to the suppression issue first, we conclude after reviewing the record that the district court
correctly determined that Desir voluntarily consented to the search of his vehicle. Even though the police

had Desir's driver's license when he gave his consent to search, it was incident to a lawful stop for a traffic

infraction which lasted only a few minutes and did not involve any use of coercion or force. See United

States v. Simmons, 172 F.3d 775, 778-79 (11th Cir.1999). Moreover, the crack cocaine was in plain view

when Officer Davis shined his flashlight through the windshield of Desir's car. Under the plain view doctrine,

this was a sufficient alternative basis for the district court's denial of Desir's motion to suppress. See U.S. v.

Jenkins, 901 F.2d 1075, 1081-82 (11th Cir.1990); U.S. v. Iglesias-Uranga, 721 F.2d 1512, 1513 (11th

Cir.1984). Accordingly, we affirm the district court's order denying Desir's motion to suppress evidence
without further discussion.
         The more difficult and troublesome issue in this case is the first one concerning the authority of a

magistrate judge. In Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), and

United States v. Maragh, 174 F.3d 1202 (11th Cir.), supplemented on denial of rehearing, 189 F.3d 1315

(11th Cir.1999), the Supreme Court and this court established a bright line rule that a magistrate judge

exceeds his or her jurisdiction by presiding at a felony trial during a critical stage of the proceeding without

the defendant's consent. See also Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923

(1989). In the present case, Desir contends that this bright line rule was violated when, without Desir's

consent, the magistrate judge instructed the jury by responding to its question and otherwise instructed the

jury regarding the processes of its deliberations. Moreover, Desir contends that the Federal Magistrates Act

was violated because those actions of the magistrate judge are considered additional duties that may not be
delegated under 28 U.S.C. § 636(b)(3), regardless of the litigant's consent.

        The record supports Desir's position that he did not consent to the magistrate judge's actions. After

the jury deliberations began, District Judge Paine advised the parties and the jury that Magistrate Judge Lynch
might appear in Judge Paine's stead to accept the verdict. However, neither Judge Paine nor Magistrate Judge

Lynch ever explicitly asked Desir whether he consented to a magistrate judge presiding over the jury
deliberations or otherwise instructing the jury. Even if there had been express consent, Desir maintains that

Magistrate Judge Lynch's actions would still constitute error because the instruction of a jury is an important
and critical stage in a criminal proceeding that cannot be presided over by a magistrate judge.

         In Gomez, the Supreme Court stated that the authority granted to magistrate judges under the Federal

Magistrates Act is to be construed narrowly:

        The district court retains the power to assign the magistrates unspecified "additional duties" subject
        only to conditions or review that the court may choose to impose. By a literal reading this additional
        duties clause would permit magistrates to conduct felony trials. But the carefully defined grant of
        authority to conduct trials of civil matters and of minor criminal cases should be construed as an
        implicit withholding of the authority to preside at a felony trial. The legislative history, with its
        repeated statements that magistrates should handle subsidiary matters to enable district judges to
        concentrate on trying cases, and its assurances that magistrates' adjudicatory jurisdiction had been
        circumscribed in the interests of policy as well as constitutional constraints, confirms this inference.
        Similar considerations lead us to conclude that Congress also did not contemplate inclusion of jury
        selection in felony trials among a magistrate's additional duties.

490 U.S. at 871-72, 109 S.Ct. 2237. In NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir.1994), the Ninth

Circuit held as follows:

        [F]ederal magistrates are creatures of statute, and so is their jurisdiction. We cannot augment it; we
        cannot ask them to do something Congress has not authorized them to do. We need not and must not
        reach the constitutional question if we can first determine that the magistrate had no
        statutorily-created jurisdiction to handle the referral we gave it.

Id. at 1415; see also United States v. Colacurcio, 84 F.3d 326, 328 (9th Cir.1996). In Maragh, this court

recognized the limitations of a magistrate's authority and articulated the rule that before a magistrate judge

can conduct a critical stage of a criminal trial, the actual consent of the parties must be obtained. See Maragh,

174 F.3d at 1206. This is so whether or not there is an objection made. Id. Therefore, based on the foregoing

decisional law, we are required to carefully examine the exercise of a magistrate judge's power to determine

whether there has been a violation of the Federal Magistrates Act and/or an infringement of Article III of the
Constitution.

         Turning to the specific issue at hand, we note that many of our sister circuits have held that there is
no violation of Article III or the Federal Magistrates Act when a magistrate judge simply accepts a jury

verdict and polls the jurors thereafter. See United States v. Day, 789 F.2d 1217, 1224 (6th Cir.1986); United

States v. Demarrias, 876 F.2d 674, 677 (8th Cir.1989); United States v. Arnoldt, 947 F.2d 1120, 1123-24 (4th

Cir.1991); see also United States v. Carr, 18 F.3d 738, 740 (9th Cir.1994) (no violation where a magistrate

judge presided over a read-back of testimony to jury which was ordered by and under the direction of the
district judge). Such acts are considered ministerial and do not exceed the magistrate judge's delegated
authority. However, it is when the magistrate judge acts beyond the ministerial and mechanical duties of

accepting and polling the jurors that the issue becomes problematic.
        In the cases reported where a magistrate judge has instructed a jury, the district judge had previously

personally approved the instructions, Allen v. United States, 921 F.2d 78 (6th Cir.1990), or the magistrate

judge acted solely as a medium on the telephone between the district judge and the jury during deliberations.

Demarrias, 876 F.2d at 677.

        In Allen, the district judge had the magistrate judge read jury instructions to the jury that had been

previously prepared by the district judge. The magistrate judge made no decisions or rulings with respect to

the instructions. In addition, the importance of the instructions was in no way diluted by the procedure. The
jury was informed that the instructions were those of the district judge and not the magistrate judge. The

district judge told the jury to listen carefully to the magistrate judge read the instructions as if the district

judge himself was the one reading the instructions. As required, the ultimate authority and responsibility for

making an informed decision rested with the district judge. See Allen, 921 F.2d at 79-80; see also United

States v. Raddatz, 447 U.S. 667, 681-83, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

        In the present case, however, the ultimate authority and responsibility for making the informed final
decision with regard to the requested read-back of testimony did not reside with the district judge. He was
not present and in fact was not informed that a question was even asked by the jurors, let alone the content

of the question. Unlike the situation in Demarrias where the district judge gave the magistrate judge specific

instructions to telephone if the jury had any questions so the district judge could dictate the magistrate judge's
response, 876 F.2d at 677, this case involved no such instructions and, indeed, Magistrate Judge Lynch did

not contact Judge Paine. We conclude that the magistrate judge inappropriately exercised the authority of
an Article III judge at a critical stage of the proceeding by responding to the jury's question that went beyond
the simple performance of a ministerial task.

         We allow that the mere acceptance of a jury verdict and the polling of a jury constitute no more than

ministerial tasks that a magistrate judge may properly perform, and we acknowledge that there might be

limited exceptions that allow a magistrate judge to otherwise interact with a jury and provide it with

instructions. See Allen, 921 F.2d at 79-80; Demarrias, 876 F.2d at 677-78. We determine, however, that

this case does not fit within those narrow exceptions because here, the district judge did not direct the

magistrate judge's response to the jury's question. In fact, the record demonstrates that the district judge was
completely unaware of the jury's question due to his absence and the magistrate judge's failure to advise him

of the question. When a matter conducted solely by a magistrate judge constitutes a critical stage of the
criminal proceeding, such as instructing the jury, the absence of express consent from all parties, particularly

the defendant, mandates reversal. See Maragh, 174 F.3d at 1206; see also United States v. Foster, 57 F.3d

727, 731 (9th Cir.1995), rev'd on other grounds, 133 F.3d 704 (1998) (en banc), vacated as to that ground,

525 U.S. 801, 119 S.Ct. 32, 142 L.Ed.2d 24 (1998). Accordingly, under the facts of this case, Desir is entitled
to a new trial.

        AFFIRMED in part, REVERSED in part, and REMANDED.
