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Subject: 90-615 -- OPINION, PERETZ v. UNITED STATES




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-615



RAFAEL PERETZ, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the second
circuit

[June 27, 1991]




    Justice Stevens delivered the opinion of the Court.

    The Federal Magistrates Act grants district courts authority to assign
magistrates certain described functions as well as "such additional duties
as are not inconsistent with the Constitution and laws of the United
States."  {1}  In Gomez v. United States, 490 U. S. 858 (1989), we held
that those "additional duties" do not encompass the selection of a jury in
a felony trial without the defendant's consent.  In this case, we consider
whether the defendant's consent warrants a different result.

I


    Petitioner and a codefendant were charged with importing four kilograms
of heroin.  At a pretrial conference attended by both petitioner and his
counsel, the District Judge asked if there was "[a]ny objection to picking
the jury before a magistrate?"  App. 2.  Petitioner's counsel responded: "I
would love the opportunity."  Ibid.  Immediately before the jury selection
commenced, the Magistrate asked for, and received, assurances from counsel
for petitioner and from counsel for his codefendant that she had their
clients' consent to proceed with the jury selection. {2}  She then
proceeded to conduct the voir dire and to supervise the selection of the
jury.  Neither defendant asked the District Court to review any ruling made
by the Magistrate.
    The District Judge presided at the jury trial which resulted in the
conviction of petitioner and the acquittal of his codefendant.  In the
District Court, petitioner raised no objection to the fact that the
Magistrate had conducted the voir dire.  On appeal, however, he contended
that it was error to assign the jury selection to the Magistrate and that
our decision in Gomez required reversal.  The Court of Appeals disagreed.
Relying on its earlier decision in United States v. Musacchia, 900 F. 2d
493 (CA2 1990), it held "that explicit consent by a defendant to
magistrate-supervised voir dire waives any subsequent challenge on those
grounds," and affirmed petitioner's conviction.  App. to Pet. for Cert. 2a;
904 F. 2d 34 (1990) (affirmance order).
    In Musacchia, the Second Circuit had affirmed a conviction in a case in
which the defendant had not objected to jury selection by the Magistrate.
The Court of Appeals concluded that our holding in Gomez applied only to
cases in which the magistrate had acted without the defendant's consent.
The court explained:


    "Appellants additionally claim that Gomez states that a magistrate is
without jurisdiction under the Federal Magistrates Act to conduct voir
dire.  We disagree.  Since Gomez was decided we and other circuits have
focused on the `without defendant's consent' language and generally ruled
that where there is either consent or a failure to object a magistrate may
conduct the jury voir dire in a felony case.  See [United States v.
Vanwort, 887 F. 2d 375, 382-383 (CA2 1989), cert. denied, sub nom.
Chapoteau v. United States, 495 U. S. --- (1990); United States v. Mang Sun
Wong, 884 F. 2d 1537, 1544 (CA2 1989), cert. denied, 493 U. S. 1082 (1990);
United States v. Lopez-Pena, 912 F. 2d 1542, 1545-1548 (CA1 1989)] (not
plain error to permit magistrate to preside since objection to magistrate
must be raised or it is waived); Government of the Virgin Islands v.
Williams, 892 F. 2d 305, 310 (3d Cir. 1989) (absent demand no
constitutional difficulty under MDRV 636(b)(3) with delegating jury
selection to magistrate); United States v. Ford, 824 F. 2d 1430, 1438-39
(5th Cir. 1987) (en banc) (harmless error for magistrate to conduct voir
dire where defendant failed to object), cert. denied, 484 U. S. 1034 . . .
(1988); United States v. Wey, 895 F. 2d 429 (7th Cir. 1990) (jury selection
by magistrate is not plain error where no prejudice is shown).  Concededly,
[United States v. France, 886 F. 2d 223 (CA9 1989),] concluded otherwise.
The court there ruled that defendant's failure to contemporaneously object
to the magistrate conducting jury selection did not waive her right to
appellate review.  886 F. 2d at 226.  But that holding may be explained, as
noted earlier, by what the court perceived as the futility of defendant
raising an objection below."  900 F. 2d, at 502.


    The conflict among the Circuits described by the Court of Appeals
prompted us to grant the Government's petition for certiorari in the France
case, see 495 U. S. --- (1990).  Earlier this term, we affirmed that
judgment by an equallydivided Court, 498 U. S. --- (1991).  Thereafter, we
granted certiorari in this case and directed the parties to address the
following three questions:


    "1. Does 28 U. S. C. MDRV 636 permit a magistrate to conduct the voir
dire in a felony trial if the defendant consents?
    "2. If 28 U. S. C. MDRV 636 permits a magistrate to conduct a felony
trial voir dire provided that the defendant consents, is the statute
consistent with Article III?
    "3. If the magistrate's supervision of the voir dire in petitioner's
trial was error, did the conduct of petitioner and his attorney constitute
a waiver of the right to raise this error on appeal?"  See 493 U. S. ---
(1991).


    Resolution of these questions must begin with a review of our decision
in Gomez.

II


    Our holding in Gomez was narrow.  We framed the question presented as
"whether presiding at the selection of a jury in a felony trial without the
defendant's consent is among those `additional duties' " that district
courts may assign to magistrates.  490 U. S., at 860 (emphasis added).  We
held that a magistrate "exceeds his jurisdiction" by selecting a jury
"despite the defendant's objection."  Id., at 876.  Thus, our holding was
carefully limited to the situation in which the parties had not acquiesced
at trial to the Magistrate's role. {3}  This particular question had
divided the Courts of Appeals.  See id., at 861-862, and n. 7.  On the
other hand, those 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. {4}
    Although we concluded that the role assumed by the Magistrate in Gomez
was beyond his authority under the Act, we recognized that Congress
intended magistrates to play an integral and important role in the federal
judicial system.  See id., at 864-869 (citing H. R. Rep. No. 96-287, p. 5
(1979)).  Our recent decisions have continued to acknowledge the importance
Congress placed on the magistrate's role.  See, e. g., McCarthy v. Bronson,
500 U. S. ---, --- (1991) (slip op., at 6).  "Given the bloated dockets
that district courts have now come to expect as ordinary, the role of the
magistrate in today's federal judicial system is nothing less than
indispensable."  Government of the Virgin Islands, 892 F. 2d, at 308. {5}
    Cognizant of the importance of magistrates to an efficient federal
court system, we were nonetheless propelled towards our holding in Gomez by
several considerations.  Chief among our concerns was this Court's "settled
policy to avoid an interpretation of a federal statute that engenders
constitutional issues."  Gomez, 490 U. S., at 864.  This policy was
implicated in Gomez because of the substantial question whether a defendant
has a constitutional right to demand that an Article III judge preside at
every critical stage of a felony trial. {6}  The principle of
constitutional avoidance led us to demand clear evidence that Congress
actually intended to permit magistrates to take on a role that raised a
substantial constitutional question.  Cf. Rust v. Sullivan, 500 U. S. ---,
--- (O'Connor, J., dissenting).  The requirement that Congress express its
intent clearly was also appropriate because the Government was asking us in
Gomez to construe a general grant of authority to authorize a procedure
that deprived an individual of an important privilege, if not a right.  See
2A C. Sands, Sutherland on Statutory Construction MDRV 58.04, p. 715 (rev.
4th ed. 1984).  The lack of an express provision for de novo review,
coupled with the absence of any mention in the statute's text or
legislative history of a magistrate's conducting voir dire without the
parties' consent, convinced us that Congress had not clearly authorized the
delegation involved in Gomez.  In view of the constitutional issues
involved, and the fact that broad language was being construed to deprive a
defendant of a significant right or privilege, we considered the lack of a
clear authorization dispositive.  See Gomez, 490 U. S., at 872, and n. 25,
875876.
    Reinforcing this conclusion was the principle that "[a]ny additional
duties performed pursuant to a general authorization in the statute
reasonably should bear some relation to the specified duties" that the
statute assigned to magistrates. {7}  Carefully reviewing the duties that
magistrates were expressly authorized to perform, see id., at 865-871, we
focused on the fact that those specified duties that were comparable to
jury selection in a felony trial could be performed only with the consent
of the litigants. {8}  We noted that, in 1968 when magistrates were
empowered to try "minor offenses," the exercise of that jurisdiction in any
specific case was conditioned upon the defendant's express written consent.
See id., at 866.  Similarly, the 1976 Amendment provided that a magistrate
could be designated as a special master in any civil case but only with the
consent of the parties.  Id., at 867-868.  And in 1979, when Congress
enlarged the magistrate's criminal jurisdiction to encompass all
misdemeanors, the exercise of that authority was subject to the defendant's
consent.  As we explained:


    "A critical limitation on this expanded jurisdiction is consent.  As
amended in 1979, the Act states that `neither the district judge nor the
magistrate shall attempt to persuade or induce any party to consent to
reference of any civil matter to a magistrate.'  93 Stat. 643, 28 U. S. C.
MDRV 636(c)(2).  In criminal cases, the Government may petition for trial
before a district judge.  `Defendants charged with misdemeanors can refuse
to consent to a magistrate and thus effect the same removal,' S. Rep. No.
96-74, p. 7 (1979), for the magistrate's criminal trial jurisdiction
depends on the defendant's specific, written consent."  Id., at 870-871
(footnote omitted).


Because the specified duties that Congress authorized magistrates to
perform without the consent of the parties were not comparable in
importance to supervision of felony trial voir dire but were instead
"subsidiary matters," id., at 872, we did not waver from our conclusion
that a magistrate cannot conduct voir dire over the defendant's objection.

III


    This case differs critically from Gomez because petitioner's counsel,
rather than objecting to the Magistrate's role, affirmatively welcomed it.
See supra, at 1.  The considerations that led to our holding in Gomez do
not lead to the conclusion that a magistrate's "additional duties" may not
include supervision of jury selection when the defendant has consented.
    Most notably, the defendant's consent significantly changes the
constitutional analysis.  As we explain in Part IV, infra, we have no
trouble concluding that there is no Article III problem when a district
court judge permits a magistrate to conduct voir dire in accordance with
the defendant's consent.  The absence of any constitutional difficulty
removes one concern that motivated us in Gomez to require unambiguous
evidence of Congress' intent to include jury selection among a magistrate's
additional duties.  Petitioner's consent also eliminates our concern that a
general authorization should not lightly be read to deprive a defendant of
any important privilege.
    We therefore attach far less importance in this case to the fact that
Congress did not focus on jury selection as a possible additional duty for
magistrates.  The generality of the category of "additional duties"
indicates that Congress intended to give federal judges significant leeway
to experiment with possible improvements in the efficiency of the judicial
process that had not already been tried or even foreseen.  If Congress had
intended strictly to limit these additional duties to functions considered
in the committee 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 process and are consistent with the basic
purposes of the statute.
    Of course, we would still be reluctant, as we were in Gomez, to
construe the additional duties clause to include responsibilities of far
greater importance than the specified duties assigned to magistrates.  But
the litigants' consent makes the crucial difference on this score as well.
As we explained in Part II, the duties that a magistrate may perform over
the parties' objections are generally subsidiary matters not comparable to
supervision of jury selection.  However, with the parties' consent, a
district judge may delegate to a magistrate supervision of entire civil and
misdemeanor trials.  These duties are comparable in responsibility and
importance to presiding over voir dire at a felony trial.
    We therefore conclude that the Act's "additional duties" clause permits
a magistrate to supervise jury selection in a felony trial provided the
parties consent.  In reaching this result, we are assisted by the reasoning
of the Courts of Appeals for the Second, Third, and Seventh Circuits, all
of which, following our decision in Gomez, have concluded that the
rationale of that opinion does not apply when the defendant has not
objected to the magistrate's conduct of the voir dire.  See United States
v. Musacchia, 900 F. 2d 493 (CA2 1990); United States v. Wey, 895 F. 2d 429
(CA7 1990); Government of the Virgin Islands v. Williams, 892 F. 2d 305
(CA3 1989).
    We share the confidence expressed by the Third Circuit in Williams that
this reading of the additional duties clause strikes the balance Congress
intended between the interests of the criminal defendant and the policies
that undergird the Federal Magistrates Act.  892 F. 2d, at 311.  The Act is
designed to relieve the district courts of certain subordinate duties that
often distract the courts from more important matters. {9}  Our reading of
the "additional duties" clause will permit the courts, with the litigants'
consent, to "continue innovative experimentations" in the use of
magistrates to improve the efficient administration of the courts' dockets.
See H. R. Rep. No. 94-1609, p. 12 (1976). {10}
    At the same time, the requirement that a criminal defendant consent to
the additional duty of jury selection protects a defendant's interest in
requesting the presence of a judge at all critical stages of his felony
trial.


"If a criminal defendant, together with his attorney, believes that the
presence of a judge best serves his interests during the selection of the
jury, then Gomez preserves his right to object to the use of a magistrate.
Where, on the other hand, the defendant is indifferent as to whether a
magistrate or a judge should preside, then it makes little sense to deny
the district court the opportunity to delegate that function to a
magistrate, particularly if such a delegation sensibly advances the court's
interest in the efficient regulation of its docket."  Government of the
Virgin Islands v. Williams, 892 F. 2d, at 311.


    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 under 28 U. S. C.
MDRV 636(b)(3) if the litigants consent. {11}  The Act evinces a
congressional belief that magistrates are well qualified to handle matters
of similar importance to jury selection but conditions their authority to
accept such responsibilities on the consent of the parties.  If a defendant
perceives any threat of injury from the absence of an Article III judge in
the jury selection process, he need only decline to consent to the
magistrate's supervision to ensure that a judge conduct the voir dire. {12}
However, when a defendant does consent to the magistrate's role, the
magistrate has jurisdiction to perform this additional duty.

IV


    There is no constitutional infirmity in the delegation of felony trial
jury selection to a magistrate when the litigants consent.  As we have
already noted, it is arguable that a defendant in a criminal trial has a
constitutional right to demand the presence of an Article III judge at voir
dire.  We need not resolve that question now, however, to determine 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.
    We have previously held that litigants may waive their personal right
to have an Article III judge preside over a civil trial.  See Commodity
Futures Trading Comm'n v. Schor, 478 U. S. 833, 848 (1986).  The most basic
rights of criminal  defendants are similarly subject to waiver.  See, e.
g., United States v. Gagnon, 470 U. S. 522, 528 (1985) (absence of
objection constitutes waiver of right to be present at all stages of
criminal trial); Levine v. United States, 362 U. S. 610, 619 (1960)
(failure to object to closing of courtroom is waiver of right to public
trial); Segurola v. United States, 275 U. S. 106, 111 (1927) (failure to
object constitutes waiver of Fourth Amendment right against unlawful search
and seizure); United States v. Figueroa, 818 F. 2d 1020, 1025 (CA1 1987)
(failure to object results in forfeiture of claim of unlawful postarrest
delay); United States v. Bascaro, 742 F. 2d 1335, 1365 (CA11 1984) (absence
of objection is waiver of double jeopardy defense), cert. denied sub nom.
Hobson v. United States, 472 U. S. 1017 (1985); United States v. Coleman,
707 F. 2d 374, 376 (CA9) (failure to object constitutes waiver of Fifth
Amendment claim), cert. denied, 464 U. S. 854 (1983).  See generally Yakus
v. United States, 321 U. S. 414, 444 (1944) ("No procedural principle is
more familiar to this Court than that a constitutional right may be
forfeited in criminal as well as civil cases by the failure to make timely
assertion of the right").  Just as the Constitution affords no protection
to a defendant who waives these fundamental rights, so it gives no
assistance to a defendant who fails to demand the presence of an Article
III judge at the selection of his jury.
    Even assuming that a litigant may not waive structural protections
provided by Article III, see Schor, 478 U. S., at 850-851, we are convinced
that no such structural protections are implicated by the procedure
followed in this case.  Magistrates are appointed and subject to removal by
Article III judges.  See 28 U. S. C. MDRV 631.  The "ultimate decision"
whether to invoke the magistrate's assistance is made by the district
court, subject to veto by the parties.  See United States v. Raddatz, 447
U. S. 667, 683 (1980).  The decision whether to empanel the jury the
selection of which a magistrate has supervised also remains entirely with
the district court.  Because "the entire process takes place under the
district court's total control and jurisdiction," id., at 681, 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' constitutional courts, National Insurance Co. v. Tidewater
Co., 337 U. S. 582, 644 (1949) (Vinson, C. J., dissenting) . . . ."  Schor,
478 U. S., at 850.
    In Raddatz, we held that the Constitution was not violated by the
reference to a Magistrate of a motion to suppress evidence in a felony
trial.  The principal constitutional argument advanced and rejected in
Raddatz was that the omission of a requirement that the trial judge must
hear the testimony of the witnesses whenever a question of credibility
arises violated the Due Process Clause of the Fifth Amendment.  Petitioner
has not advanced a similar argument in this case, no doubt because it would
plainly be foreclosed by our holding in Raddatz.  That case also disposes
of the Article III argument that petitioner does raise.  The reasoning in
Justice Blackmun's concurring opinion is controlling here:


"As the Court observes, the handling of suppression motions invariably
remains completely in the control of the federal district court.  The judge
may initially decline to refer any matter to a magistrate.  When a matter
is referred, the judge may freely reject the magistrate's recommendation.
He may rehear the evidence in whole or in part.  He may call for additional
findings or otherwise `recommit the matter to the magistrate with
instructions.'  See 28 U. S. C. MDRV 636(b)(1).  Moreover, the magistrate
himself is subject to the Art. III judge's control.  Magistrates are
appointed by district judges, MDRV 631(a), and subject to removal by them,
MDRV 631(h).  In addition, district judges retain plenary authority over
when, what, and how many pretrial matters are assigned to magistrates, and
`[e]ach district court shall establish rules pursuant to which the
magistrates shall discharge their duties.'  MDRV 636(b)(4). . . .
    "It is also significant that the Magistrates Act imposes significant
requirements to ensure competency and im partiality, 15 631(b), (c), and
(i), 632, 637 (1976 ed. and Supp. II), including a rule generally barring
reduction of salaries of full-time magistrates, MDRV 634(b).  Even assuming
that, despite these protections, a controversial matter might be delegated
to a magistrate who is susceptible to outside pressures, the district judge
-- insulated by life tenure and irreducible salary -- is waiting in the
wings, fully able to correct errors.  Under these circumstances, I simply
do not perceive the threat to the judicial power or the independence of
judicial decisionmaking that underlies Art. III.  We do not face a
procedure under which `Congress [has] delegate[d] to a non-Art. III judge
the authority to make final determinations on issues of fact.'  Post, at
703 (dissenting opinion).  Rather, we confront a procedure under which
Congress has vested in Art. III judges the discretionary power to delegate
certain functions to competent and impartial assistants, while ensuring
that the judges retain complete supervisory control over the assistants'
activities."  447 U. S., at 685-686.


    Unlike the provision of the Federal Magistrates Act that we upheld in
Raddatz, MDRV 636(b)(3) contains no express provision for de novo review of
a magistrate's rulings during the selection of a jury.  This omission,
however, does not alter the result of the constitutional analysis.  The
statutory provision we upheld in Raddatz provided for de novo review only
when a party objected to the magistrate's findings or recommendations.  See
28 U. S. C. MDRV 636(b)(1).  Thus, Raddatz established that, to the extent
"de novo review is required to satisfy Article III concerns, it need not be
exercised unless requested by the parties."  United States v. Peacock, 761
F. 2d 1313, 1318 (CA9) (Kennedy, J.), cert. denied, 474 U. S. 847 (1985).
In this case, petitioner did not ask the District Court to review any
ruling by the Magistrate.  If a defendant in a future case does request
review, nothing in the statute precludes a district court from providing
the review that the Constitution requires.  Although there may be other
cases in which de novo review by the district court would provide an
inadequate substitute for the Article III judge's actual supervision of the
voir dire, the same is true of a magistrate's determination in a
suppression hearing, which often turns on the credibility of witnesses.
See Raddatz, 447 U. S., at 692 (Stewart, J., dissenting).  We presume, as
we did in Raddatz when we upheld the provision allowing reference to a
magistrate of suppression motions, that district judges will handle such
cases properly if and when they arise.  See id., at 681, n. 7.  Our
decision that the procedure followed in Raddatz comported with Article III
therefore requires the same conclusion respecting the procedure followed in
this case.

V


    Our disposition of the statutory and constitutional questions makes it
unnecessary to discuss the third question that we asked the parties to
brief and to argue.  We note, however, that the Solicitor General conceded
that it was error to make the reference to the Magistrate in this case and
relied entirely on the argument that the error was waived.  Although that
concession deprived us of the benefit of an adversary presentation, it of
course does not prevent us from adopting the legal analysis of those Courts
of Appeals that share our interpretation of the statute as construed in
Gomez.  We agree with the view of the majority of Circuit Judges who have
considered this issue, both before and after our decision in Gomez, 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. {13}

    The judgment of the Court of Appeals is affirmed.

It is so ordered.








------------------------------------------------------------------------------
1
    Pub. L. 90-578, 82 Stat. 1108, as amended, 28 U. S. C. MDRV 636(b)(3).

2
    "THE COURT: Mr. Breitbart, I have the consent of your client to proceed
with the jury selection?
    "MR. BREITBART: Yes, your Honor.
    "THE COURT: And Mr. Lopez, do I have the consent of your client to
proceed?

    "MR. LOPEZ: Yes, your Honor."  App. 5.

3
    As the Third Circuit has recognized:


"The Court did not, however, reach the question presented in this case:
whether the Federal Magistrates Act permits a magistrate to preside over
the selection of a jury when a defendant consents.  In Gomez, the Court
framed the issue as `whether presiding at the selection of a jury in a
felony trial without the defendant's consent' is an additional duty within
the meaning of the Federal Magistrates Act.  Id. at 2239 (emphasis added);
see also id. at 2248 (rejecting the government's harmless error analysis on
the grounds that it `does not apply in a felony case in which, despite the
defendant's objection and without any meaningful review by a district
judge, an officer exceeds his jurisdiction by selecting a jury').  Gomez
thus left open the question whether a defendant's consent makes a
difference as to whether a district court may assign voir dire to a
magistrate."  Government of the Virgin Islands v. Williams, 892 F. 2d 305,
308-309 (1989).

4
    See, e. g., United States v. Ford, 824 F. 2d 1430 (CA5 1987) (en banc),
cert. denied, 484 U. S. 1034 (1988); United States v. DeFiore, 720 F. 2d
757 (CA2 1983), cert. denied sub nom. Coppola v. United States, 466 U. S.
906 (1984); United States v. Rivera-Sola, 713 F. 2d 866 (CA1 1983); Haith
v. United States, 342 F. 2d 158 (CA3 1965).

5
    "It can hardly be denied that the system created by the Federal
Magistrates Act has exceeded the highest expectations of the legislators
who conceived it.  In modern federal practice, federal magistrates account
for a staggering volume of judicial work.  In 1987, for example,
magistrates presided over nearly half a million judicial proceedings.  See
S. Rep. No. 100-293, 100th Cong., 2d Sess. 7, reprinted in 1988 U. S. Code
Cong. & Admin. News 5564.  As a recent State Report noted, `[i]n
particular, magistrates [in 1987] conducted over 134,000 preliminary
proceedings in felony cases; handled more than 197,000 references of civil
and criminal pretrial matters; reviewed more than 6,500 social security
appeals and more than 27,000 prisoner filings; and tried more than 95,000
misdemeanors and 4,900 civil cases on consent of the parties.  Id. at
5565."  Government of the Virgin Islands v. Williams, 892 F. 2d, at 308.

6
    In Gomez, we cited our opinion in Commodity Futures Trading Comm'n v.
Schor, 478 U. S. 833 (1986), which emphasized the importance of the
personal right to an Article III adjudicator:

    "Article III, MDRV 1, serves both to protect `the role of the
independent judiciary within the constitutional scheme of tripartite
government.'  Thomas, [473 U. S. 568, 583 (1985)], and to safeguard
litigants' `right to have claims decided before judges who are free from
potential domination by other branches of government.'  United States v.
Will, 449 U. S. 200, 218 (1980).  See also Thomas, supra, at 582-583;
Northern Pipeline, 458 U. S., at 58.  Although our cases have provided us
with little occasion to discuss the nature or significance of this latter
safeguard, our prior discussions of Article III, MDRV 1's guarantee of an
independent and impartial adjudication by the federal judiciary of matters
within the judicial power of the United States intimated that this
guarantee serves to protect primarily personal, rather than structural,
interests.  See, e. g., id., at 90 (Rehnquist, J., concurring in judgment)
(noting lack of consent to non-Article III jurisdiction); id., at 95
(White, J., dissenting) (same).  See also Currie, Bankruptcy Judges and the
Independent Judiciary, 16 Creighton L. Rev. 441, 460, n. 108 (1983)
(Article III, MDRV 1, `was designed as a protection for the parties from
the risk of legislative or executive pressure on judicial decision').  Cf.
Crowell v. Benson, [285 U. S. 22, 87 (1932)] (Brandeis, J., dissenting)."
Id., at 848.

7
    "The Federal Magistrates Act provides that a `magistrate may be
assigned such additional duties as are not inconsistent with the
Constitution and laws of the United States.'  28 U. S. C. MDRV 636(b)(3).
Read literally and without reference to the context in which they appear,
these words might encompass any assignment that is not explicitly
prohibited by statute or by the Constitution. . . .

"When a statute creates an office to which it assigns specific duties,
those duties outline the attributes of the office.  Any additional duties
performed pursuant to a general authorization in the statute reasonably
should bear some relation to the specified duties.  Thus in United States
v. Raddatz, 447 U. S. 667, 674-676 (1980); Mathews v. Weber, 423 U. S. 261
(1976); and Wingo v. Wedding, 418 U. S. 461 (1974), we interpreted the
Federal Magistrates Act in light of its structure and purpose."  Gomez v.
United States, 490 U. S., at 863-864 (1989).

8
    The legislative history of the statute also emphasizes the crucial
nature of the presence or absence of the litigants' consent.  See H. R.
Rep. No. 96-287, p. 20 (1979) ("Because of the consent requirement,
magistrates will be used only as the bench, bar, and litigants desire, only
in cases where they are felt by all participants to be competent").

9
    See, e. g., H. R. Rep. No. 94-1609, p. 7 (1976) (magistrate is to
"assist the district judge in a variety of pretrial and preliminary matters
thereby facilitating the ultimate and final exercise of the adjudicatory
function at the trial of the case"); S. Rep. No. 92-1065, p. 3 (1972)
(magistrates "render valuable assistance to the judges of the district
courts, thereby freeing the time of those judges for the actual trial of
cases"); H. R. Rep. No. 1629, 90th Cong., 2d Sess., p. 12 (1968) (purpose
of Act is "to cull from the ever-growing workload of the U. S. district
courts matters that are more desirably performed by a lower tier of
judicial officers").

10
    See, e. g., United States v. Peacock, 761 F. 2d 1313, 1319 (CA9)
(Kennedy, J.) ("There may be sound reasons . . . to allow the magistrate to
assist [in voir dire], as was done in this case.  [E]ach of the . . .
circuits in the federal system . . . has been instructed to improve its
efficiency in juror utilization. . . .  The practice of delegating voir
dire to a magistrate may assist the district courts in accomplishing this
objective"), cert denied, 474 U. S. 847 (1985).

11
    We noted in Gomez that the legislative history of the Act nowhere
listed supervision, without a defendant's consent, of a felony trial voir
dire as a potential magistrate responsibility.  We did call attention,
however, to a Committee Report that referred to a "letter suggest[ing] that
a magistrate selected juries only with consent of the parties."  Gomez v.
United States, 490 U. S. 858, 875-876, n. 30 (1989) (emphasis added)
(citing H. R. Rep. No. 94-1609, p. 9 (1976)).

12
    We do not qualify the portion of our opinion in Gomez that explained
why jury selection is an important function, the performance of which may
be difficult for a judge to review with infallible accuracy.  See 490 U.
S., at 873-876.  We are confident, however, that defense counsel can
sensibly balance these considerations against other concerns in deciding
whether to object to a magistrate's supervision of voir dire.  We stress,
in this regard, that defendants may waive the right to judicial performance
of other important functions, including the conduct of the trial itself in
misdemeanor and civil proceedings.  Like jury selection, these duties
require the magistrate to "observe witnesses, make credibility
determinations, and weigh contradictory evidence," id. at 874, n. 27, and
therefore present equivalent problems for judicial oversight.

13
    See, e. g., United States v. Alvarado, 923 F. 2d 253 (CA2 1991);
Government of the Virgin Islands v. Williams, 892 F. 2d 305 (CA3 1989);
United States v. Rivera-Sola, 713 F. 2d 866 (CA1 1983); United States v.
Ford, 824 F. 2d 1430, 1439-1440 (CA5 1987) (Jolly, J., concurring), cert.
denied, 484 U. S. 1034 (1988).  Cf. United States v. Wey, 895 F. 2d 429,
431 (CA7 1990) ("it may be that the defendant's consent could authorize the
judge to designate a magistrate, under 28 U. S. C. MDRV 636(b), to preside
over jury selection"); Ford, 824 F. 2d, at 1438-1439 (failure to object
constitutes waiver of error); United States v. DeFiore, 720 F. 2d 757 (CA2
1983), cert. denied sub nom. Coppola v. United States, 466 U. S. 906
(1984).  But see United States v. Martinez-Torres, 912 F. 2d 1552 (CA1
1990) (en banc); United States v. France, 886 F. 2d 223 (CA9 1989).