United States v. Justin Metuchen Gamba

483 F.3d 942 UNITED STATES of America, Plaintiff-Appellee, v. Justin Metuchen GAMBA, Defendant-Appellant. No. 06-35021. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 17, 2006. Filed April 11, 2007. Daniel R. Wilson, Measure, Robbin & Wilson, P.C., Kalispell, Montana, for the defendant-appellant. Joshua S. Van de Wetering, Assistant United States Attorney, Missoula, Montana, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. Nos. CV-04-00162-DWM, CR-01-00068-DWM. Before: GOODWIN, FISHER, and MILAN D. SMITH, JR., Circuit Judges. MILAN D. SMITH, JR., Circuit Judge: 1 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 jurisdiction to preside over closing argument without…

dissenting:

I do not quarrel with the majority’s conclusion that the district court had the authority to delegate to the magistrate judge the responsibility for presiding over the closing argument. Nor do I fault the district court for proposing to utilize the services of the magistrate judge under the circumstances here. But I do disagree that such a delegation of jurisdiction at this critical stage of the proceedings was proper without obtaining the knowing and informed consent (or acquiescence) of the defendant himself, not simply by way of a unilateral “tactical” decision by his attorney. See United States v. Maragh, 174 F.3d 1202, 1206 (11th Cir.1999). In that respect, I respectfully dissent.

*951 I.

In Gomez v. United States, 490 U.S. 858 , 109 S.Ct. 2237 , 104 L.Ed.2d 923 (1989), the Supreme Court held that where the defendant had timely objected to the magistrate judge conducting voir dire, the “additional duties” a federal judge may assign to a magistrate judge under the Federal Magistrates Act (FMA) do not include the selection of a jury in a felony trial. Id. at 860, 871-72 , 109 S.Ct. 2237 . In Peretz v. United States, 501 U.S. 923 , 111 S.Ct. 2661 , 115 L.Ed.2d 808…

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 Gam-ba’s appellate counsel ineffective when he failed to challenge on appeal the magistrate judge’s jurisdiction to preside over closing argument without Gamba’s personal 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 where the decision is one of trial tactics or strategy.

FACTS AND PROCEDURAL HISTORY

Gamba was charged with two counts of making false statements in violation of 18 U.S.C. § 1001 , two counts of witness tarn-pering in violation of 18 U.S.C. § 1512 (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…