author:
Justice Kennedy
      Justice Scalia, Justice Thomas,

text:
    GONZALEZ v. UNITED STATES
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
    No. 06-11612.
    Argued January 8, 2008
    Decided May 12, 2008

      Brent E. Newton argued the cause for petitioner. With him on the briefs were Marjorie A. Meyers, H. Michael Sokolow, and Timothy Crooks.

      Lisa S. Blatt argued the cause for the United States. With her on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Deborah Watson.

      Briefs of amici curiae urging reversal were filed for the Charles Hamilton Houston Institute for Race and Justice by Charles J. Ogletree, Jr., and Rachel E. Barkow; and for the National Association of Criminal Defense Lawyers et al. by Joel B. Rudin, Joshua L. Dratel, and Henry J. Bemporad.

   Justice Kennedy

delivered the opinion of the Court.

If the parties consent, federal magistrate judges may preside over the voir dire and selection of prospective jurors in a felony criminal trial. Peretz v. United States, 501 U. S. 923, 933 (1991). This case presents the question whether it suffices for counsel alone to consent to the magistrate judge’s role in presiding over voir dire and jury selection or whether the defendant must give his or her own consent.

Homero Gonzalez was charged in the United States District Court for the Southern District of Texas on five felony-drug offense counts. He is the petitioner here. At the outset of jury selection, the parties appeared before a Magistrate Judge. The Magistrate Judge asked the attorneys to approach the bench. After they complied, the Magistrate Judge said: “I need to ask the parties at this time if they are going to consent to having the United States Magistrate Judge proceed in assisting in the jury selection of this case.” App. 16. Petitioner’s counsel responded: “Yes, your Honor, we are.” Ibid. The Magistrate Judge asked if petitioner was present and if he needed an interpreter. Petitioner’s counsel answered yes to both questions. Petitioner was not asked if he consented to the Magistrate Judge’s presiding. The record does not permit us to infer this or even to infer that petitioner knew there was a right to be waived. The Magistrate Judge then supervised voir dire and jury selection. Petitioner made no objections to the Magistrate Judge’s rulings or her conduct of the proceedings. A District Judge presided at the ensuing jury trial, and the jury returned a verdict of guilty on all counts.

Petitioner appealed, contending, for the first time, that it was error not to obtain his own consent to the Magistrate Judge’s presiding at voir dire. The United States Court of Appeals for the Fifth Circuit affirmed the convictions. The court concluded petitioner could not show the error was plain and, furthermore, there was no error at all. It held the right to have an Article III judge preside over voir dire could be waived by petitioner’s counsel. 483 F. 3d 390, 394 (2007). The Courts of Appeals differ on this issue. Compare ibid, with United States v. Maragh, 174 F. 3d 1202,1206 (CA11 1999) (requiring personal and explicit consent from the defendant); see also United States v. Desir, 273 F. 3d 39, 44 (CA1 2001) (magistrate judge may conduct jury selection unless the defendant or his attorney registers an objection). We granted certiorari. 551 U. S. 1192 (2007). We agree that there was no error and hold that petitioner’s counsel had foil authority to consent to the Magistrate Judge’s role.

The Federal Magistrates Act, 28 U. S. C. § 631 et seq. (2000 ed. and Supp. V), permits district courts to assign designated functions to magistrate judges. For example, magistrate judges are authorized to: issue orders concerning release or detention of persons pending trial; take acknowledgments, affidavits, and depositions; and enter sentences for petty offenses. § 636(a) (2000 ed. and Supp. V). They also may hear and determine, when designated to do so, any pretrial matter pending before the district court, with the exception of certain specified motions. Magistrate judges may also conduct hearings and propose recommendations for those motions, applications for post-trial criminal relief, and conditions of confinement petitions. § 636(b)(1) (2000 ed.). If the parties consent, they may conduct misdemeanor criminal trials and civil trials. §§ 636(a)(3) and (c)(1).

The statutory provision of direct applicability in the present case is § 636(b)(3). It states: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” The general, nonspecific terms of this paragraph, preceded by text that sets out permissible duties in more precise terms, constitute a residual or general category that must not be interpreted in terms so expansive that the paragraph overshadows all that goes before.

In two earlier cases the Court considered the question of magistrate judges presiding over the jury selection process in felony trials. In Gomez v. United States, 490 U. S. 858 (1989), the District Judge delegated the task of selecting a jury to a Federal Magistrate Judge. Defense counsel objected, but the objection was overruled. The Court noted that “[a] critical limitation on [the magistrate judge’s] expanded jurisdiction is consent,” id., at 870, and held that presiding, over an objection, at the preliminary selection phase of a jury trial in felony eases is not among the additional duties that a magistrate judge may assume, id., at 875-876.

In Peretz v. United States, 501 U. S. 923, the Court again considered whether a magistrate judge could preside over voir dire in a felony case. In that instance, however, defendant’s counsel, upon being asked by the District Court at a pretrial conference (with the defendant present) if there was any objection to having jury selection before a magistrate judge, responded, “T would love the opportunity.’” Id., at 925. Defense counsel later advised the Magistrate Judge that the defendant consented to the process. The Court clarified that in a felony trial neither the Act nor Article III forbids supervision of voir dire by a magistrate judge if both parties consent. Id., at 935-936.

Taken together, Gomez and Peretz mean that “the additional duties” the statute permits the magistrate judge to undertake include presiding at voir dire and jury selection provided there is consent but not if there is an objection. We now consider whether the consent can be given by counsel acting on behalf of the client but without the client’s own express consent.

At first reading it might seem that our holding here is dictated by the holding in Peretz. In Peretz, it would appear the accused was aware of the colloquy between the District Judge and defense counsel and the formal waiver before the Magistrate Judge. On this premise Peretz might be read narrowly to hold that a defendant may signal consent by failing to object; and indeed, petitioner here seeks to distinguish Peretz on this ground. Brief for Petitioner 41-42. We decide this case, however, on the assumption that the defendant did not hear, or did not understand, the waiver discussions. This addresses what, at least in petitioner’s view, Peretz did not. It should be noted that we do not have before us an instance where a defendant instructs the lawyer or advises the court in an explicit, timely way that he or she demands that a district judge preside in this preliminary phase.

There are instances in federal criminal proceedings where the procedural requisites for consent are specified and a right cannot be waived except with a defendant’s own informed consent. Under Federal Rule of Criminal Procedure 11(b), for example, the district court is required, as a precondition to acceptance of a guilty plea, to inform the defendant in person of the specified rights he or she may claim in a full criminal trial and then verify that the plea is voluntary by addressing the defendant. The requirement is satisfied by a colloquy between judge and defendant, reviewing all of the rights listed in Rule 11.

Statutes may also address this subject. Under 18 U. S. C. § 3401(b), for example, a magistrate judge may preside over the whole trial and sentencing in a misdemeanor case but only with the express, personal consent of the defendant. The provision requires that the magistrate judge

“carefully explain to the defendant that he has a right to trial, judgment, and sentencing by a district judge and that he may have a right to trial by jury before a district judge or magistrate judge. The magistrate judge may not proceed to try the case unless the defendant, after such explanation, expressly consents to be tried before the magistrate judge and expressly and specifically waives trial, judgment, and sentencing by a district judge. Any such consent and waiver shall be made in writing or orally on the record.”

The controlling statute in this case has a different design, however. Title 28 U. S. C. § 636(b)(3) does not state that consent to preside over felony voir dire must be granted by following a procedure of similar clarity. As a general matter, where there is a full trial there are various points in the pretrial and trial process when rights either can be asserted or waived; and there is support in our cases for concluding that some of these rights cannot be waived absent the defendant’s own consent. Whether the personal consent must be explicit and on the record or can be determined from a course of conduct may be another matter, but for now it suffices to note that we have acknowledged that some rights cannot be waived by the attorney alone. See New York v. Hill, 528 U. S. 110, 114-115 (2000).

Citing some of our precedents on point, the Court in Hill gave this capsule discussion:

“What suffices for waiver depends on the nature of the right at issue. ‘[Wjhether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.’ United States v. Olano, 507 U. S. 725, 733 (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e. g., Johnson v. Zerbst,. 304 U. S. 458, 464-465 (1938) (right to counsel); Brookhart v. Janis, 384 U. S. 1, 7-8 (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. ‘Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has — and must have — full authority to manage the conduct of the trial.’ Taylor v. Illinois, 484 U. S. 400, 417-418 (1988). As to many decisions pertaining to the conduct of the trial, the defendant is ‘deemed bound by the acts of his lawyer-agent and is considered to have “notice of all facts, notice of which can be charged upon the attorney.” ’ Link v. Wabash R. Co., 370 U. S. 626, 634 (1962) (quoting Smith v. Ayer, 101 U. S. 320, 326 (1880)). Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 U. S. 745, 751 (1983), what evidentiary objections to raise, see Henry v. Mississippi, 379 U. S. 443, 451 (1965), and what agreements to conclude regarding the admission of evidence, see United States v. McGill, 11 F. 3d 223, 226-227 (CA1 1993). Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last.” Ibid.

The issue in Hill was whether the attorney, acting without indication of particular consent from his client, could waive his client’s statutory right to a speedy trial pursuant to the Interstate Agreement on Detainers. The Court held that the attorney’s statement, without any showing of the client’s explicit consent, could waive the speedy trial right: “Scheduling matters are plainly among those for which agreement by counsel generally controls.” Id., at 115.

Giving the attorney control of trial management matters is a practical necessity. “The adversary process could not function effectively if every tactical decision required client approval.” Taylor v. Illinois, 484 U. S. 400, 418 (1988). The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel. See Powell v. Alabama, 287 U. S. 45, 68-69 (1932); ABA Standards for Criminal Justice, Defense Function 4-5.2, Commentary, p. 202 (3d ed. 1993) (“Many of the rights of an accused, including constitutional rights, are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile”). Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiencies and fairness that the trial process is designed to promote. In exercising professional judgment, moreover, the attorney draws upon the expertise and experience that members of the bar should bring to the trial process. In most instances the attorney will have a better understanding of the procedural choices than the client; or at least the law should so assume. See Jones v. Barnes, 463 U. S. 745, 751 (1983); see also Tollett v. Henderson, 411 U. S. 258, 267-268 (1973); cf. ABA Standards, supra, at 202 (“Every experienced advocate can recall the disconcerting experience of trying to conduct the examination of a witness or follow opposing arguments or the judge’s charge while the client ‘plucks at the attorney’s sleeve’ offering gratuitous suggestions”). To hold that every instance of waiver requires the personal consent of the client himself or herself would be impractical.

Similar to the scheduling matter in Hill, acceptance of a magistrate judge at the jury selection phase is a tactical decision that is well suited for the attorney’s own decision. Under Rule 24 of the Federal Rules of Criminal Procedure, the 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. Fed. Rule Crim. Proc. 24(a); App. 20. A magistrate judge’s or a district judge’s particular approach to voir dire both in substance — the questions asked — and in tone — formal or informal — may be relevant in light of the attorney’s own approach. The attorney may decide whether to accept the magistrate judge based in part on these factors. As with other tactical decisions, requiring personal, on-the-record approval from the client could necessitate a lengthy explanation the client might not understand at the moment and that might distract from more pressing matters as the attorney seeks to prepare the best defense. For these reasons we conclude that express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the authorization in § 636(b)(3).

Our holding is not inconsistent with reading other precedents to hold that some basic trial choices are so important that an attorney must seek the client’s consent in order to waive the right. See, e. g., Florida v. Nixon, 543 U. S. 175, 187 (2004) (identifying the choices “ ‘to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal’ ” as examples (quoting Jones, supra, at 751)). Petitioner argues that the decision to have a magistrate judge rather than an Article III judge preside at jury selection is a fundamental choice, cf. Hill, 528 U. S., at 114, or, at least, raises a question of constitutional significance so that we should interpret the Act to require an explicit personal statement of consent before the magistrate judge can proceed with jury selection.

We conclude otherwise. Under the avoidance canon, “when ‘a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.’” Harris v. United States, 536 U. S. 545, 555 (2002) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909)). The canon, however, does not apply unless there are “serious concerns about the statute’s constitutionality.” Harris, supra, at 555; see also Reno v. Flores, 507 U. S. 292, 314, n. 9 (1993).

Those concerns are not present here. Petitioner concedes that a magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination and selection. Reply Brief for Petitioner 12-13; see also Peretz, 501 U. S., at 935 (“The Act evinces a congressional belief that magistrates are well qualified to handle matters of similar importance to jury selection”). The Act contains some features to ensure impartiality. See, e. g., 28 U. S. C. §§ 631(i) (establishing requirements for removal), 632 (limiting concurrent employment), 634(b) (providing salary protection during the term). And “ ‘the district judge — insulated by life tenure and irreducible salary — is waiting in the wings, fully able to correct errors.’” Peretz, supra, at 938 (quoting United States v. Raddatz, 447 U. S. 667, 686 (1980) (Blackmun, J., concurring)). Here petitioner made no objections to the rulings by the Magistrate Judge. Had objections been made, nothing in the record or the rules indicates that the District Judge could not have ruled on the issues, all with no delay or prejudice to any trial that had commenced. See Peretz, supra, at 935, n. 12, 939. These factors support our determination that consent of counsel suffices to allow a magistrate judge to supervise voir dire. This is not a case where the magistrate judge is asked to preside or make determinations after the trial has commenced and it is arguably difficult or disruptive for a district judge to review any objections that might have been made to the magistrate judge’s rulings.

Petitioner notes that Peretz considered supervision over entire civil and misdemeanor trials comparable to presiding over voir dire at a felony trial. 501 U. S., at 933. It follows, he argues, that § 636(b)(3) must require, as does 18 U. S. C. § 3401(b), express personal consent by the defendant before a magistrate judge may preside over voir dire. But it is not obvious that Congress would have thought these matters required the same form of consent. Aside from the fact that the statutory text is different, there are relevant differences between presiding over a full trial and presiding over voir dire. Were petitioner correct, one would think the Act would require at least the same form of consent to authorize a magistrate judge to preside over either a civil or a misdemeanor trial (which Peretz also deemed to be of comparable importance). Our interpretation of the Act indicates otherwise. Compare § 3401(b) with Roell v. Withrow, 538 U. S. 580, 590 (2003) (concluding that parties may authorize a full-time magistrate judge to preside over a civil trial via implied consent).

Petitioner argues that our view of the issue should be informed by Gomez’s conclusion that having a magistrate judge during jury selection without consent is structural error, not subject to harmless-error review. See 490 U. S., at 876. The exemption of certain errors from harmless-error review “recognizes that some errors necessarily render a trial fundamentally unfair.” Rose v. Clark, 478 U. S. 570, 577 (1986); see also id., at 577-578. In petitioner’s view, Gomez establishes that the issue in this case is of sufficient gravity or concern that personal consent must be required.

The Court held in Gomez that imposition of a magistrate judge over objection was structural error, violating the basic right to a trial conducted at all critical stages by a judicial officer with appropriate jurisdiction. 490 U. S., at 876. It does not follow, however, that this structural aspect requires an insistence on personal consent. Here, jurisdiction turns on consent; and for the reasons discussed above an attorney, acting on the client’s behalf, can make an informed decision to allow the magistrate judge to exercise the jurisdiction Congress permits.

Although a criminal defendant may demand that an Article III judge preside over the selection of a jury, the choice to do so reflects considerations more significant to the realm of the attorney than to the accused. Requiring the defendant to consent to a magistrate judge only by way of an on-the-record personal statement is not dictated by precedent and would burden the trial process, with little added protection for the defendant.

Pursuant to 28 U. S. C. § 636(b)(3) a magistrate judge may preside over jury examination and jury selection only if the parties, or the attorneys for the parties, consent. Consent from an attorney will suffice. We do not have before us, and we do not address, an instance where the attorney states consent but the party by express and timely objection seeks to override his or her counsel. We need not decide, moreover, if consent may be inferred from a failure by a party and his or her attorney to object to the presiding by a magistrate judge. These issues are not presented here.

The judgment of the Court of Appeals is affirmed.

R is so ordered.

Justice Scalia,

concurring in the judgment.

I agree with the Court that no statute or rule requires that petitioner personally participate in the waiver of his right to have an Article III judge oversee voir dire. As to whether the Constitution requires that, the Court holds that it does not because it is a decision more tactical than fundamental— “more significant to the realm of the attorney than to the accused.” Ante, at 253. I agree with the Court’s conclusion, but not with the tactical-vs.-fundamental test on which it is based.

Petitioner and the Government do not dispute that petitioner’s counsel consented to have a magistrate judge oversee voir dire. The issue is whether that consent — consent of counsel alone — effected a valid waiver of petitioner’s right to an Article III judge. It is important to bear in mind that we are not speaking here of action taken by counsel over his client’s objection — which would have the effect of revoking the agency with respect to the action in question. See Brookhart v. Janis, 384 U. S. 1, 7-8 (1966). There is no suggestion of that. The issue is whether consent expressed by counsel alone is ineffective simply because the defendant himself did not express to the court his consent.

I think not. Our opinions have sometimes said in passing that, under the Constitution, certain “fundamental” or “basic” rights cannot be waived unless a defendant personally participates in the waiver. See, e. g., Taylor v. Illinois, 484 U. S. 400, 417-418 (1988); United States v. Olano, 507 U. S. 725, 733 (1993). We have even repeated the suggestion in cases that actually involved the question whether a criminal defendant’s attorney could waive a certain right — but never in a case where the suggestion governed the disposition. In New York v. Hill, 528 U. S. 110 (2000), although we noted that “[f]or certain fundamental rights, the defendant must personally make an informed waiver,” id., at 114, we in fact found such a requirement inapplicable; and even that determination can be viewed as resting upon an interpretation of the statute creating the right that counsel had waived, see id., at 115. And in Florida v. Nixon, 543 U. S. 175 (2004), although we said that “counsel lacks authority to consent to a guilty plea on [his] client’s behalf,” id., at 187, our holding was simply that counsel’s concession of guilt to the jury did not amount to a guilty plea, id., at 188, and did not constitute ineffective assistance of counsel, id., at 192. As detailed in the margin, the decisions often cited for the principle of attorney incapacity are inapposite; except for one line of precedent, no decision of this Court holds that, as a constitutional matter, a defendant must personally waive certain of his “fundamental” rights — which typically are identified as the rights to trial, jury, and counsel. The exceptional line of precedent involves the right to counsel. See Johnson v. Zerbst, 304 U. S. 458, 464-465 (1938). But that right is essentially sui generis, since an unrepresented defendant cannot possibly waive his right to counsel except in person. Cases involving that right therefore provide no support for the principle that the Constitution sometimes forbids attorney waiver.

Since a formula repeated in dictum but never the basis for judgment is not owed stare decisis weight, see Lingle v. Chevron U S. A. Inc., 544 U. S. 528, 545-546 (2005), our precedents have not established the rule of decision applicable in this case. I would not adopt the tactical-vs.fundamental approach, which is vague and derives from nothing more substantial than this Court’s say-so. One respected authority has noted that the approach has a “potential for uncertainty,” and that our precedents purporting to apply it “have been brief and conclusionary.” 3 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §§ 11.6(a), (c), pp. 784, 796 (3d ed. 2007). That is surely an understatement. What makes a right tactical? Depending on the circumstances, waiving any right can be a tactical decision. Even pleading guilty, which waives the right to trial, is highly tactical, since it usually requires balancing the prosecutor’s plea bargain against the prospect of better and worse outcomes at trial.

Whether a right is “fundamental” is equally mysterious. One would think that any right guaranteed by the Constitution would be fundamental. But I doubt many think that the Sixth Amendment right to confront witnesses cannot be waived by counsel. See Diaz v. United States, 223 U. S. 442, 444, 452-453 (1912). Perhaps, then, specification in the Constitution is a necessary, but not sufficient, condition for “fundamental” status. But if something more is necessary, I cannot imagine what it might be. Apart from constitutional guarantee, I know of no objective criterion for ranking rights. The Court concludes that the right to have an Article III judge oversee voir dire is not a fundamental right, ante, at 250-252, without answering whether it is even a constitutional right, and without explaining what makes a right fundamental in the first place. The essence of “fundamental” rights continues to elude.

I would therefore adopt the rule that, as a constitutional matter, all waivable rights (except, of course, the right to counsel) can be waived by counsel. There is no basis in the Constitution, or as far as I am aware in common-law practice, for distinguishing in this regard between a criminal defendant and his authorized representative. In fact, the very notion of representative litigation suggests that the Constitution draws no distinction between them. “A prisoner . . . who defends by counsel, and silently acquiesces in what they agree to, is bound as any other principal by the act of his agent.” People v. Rathbun, 21 Wend. 509, 543 (N. Y. Sup. Ct. 1839). The Rathbun opinion, far from being the outlier view of a state court, was adopted as the common-law position by eminent jurists of the 19th century, including Chief Justice Shaw of the Supreme Judicial Court of Massachusetts. See Commonwealth v. Dailey, 66 Mass. 80, 83 (1853) (discussing Rathbun with approval in a case involving waiver of the right to a 12-man jury).

It may well be desirable to require a defendant’s personal waiver with regard to certain rights. Rule 11(c) of the Federal Rules of Criminal Procedure, for example, provides that before accepting a guilty plea the court must “address the defendant personally in open court,” advise him of the consequences of his plea, and ensure that the plea is voluntary. See also Rule 10(b) (waiver of right to appear at arraignment must be in writing signed by counsel and defendant). I do not contend that the Sixth Amendment’s right to assistance of counsel prohibits such requirements of personal participation, at least where they do not impair counsel’s expert assistance.

Even without such rules it is certainly prudent, to forestall later challenges to counsel’s conduct, for a trial court to satisfy itself of the defendant’s personal consent to certain actions, such as entry of a guilty plea or waiver of jury trial, for which objective norms require an attorney to seek his client’s authorization. See, e. g., ABA Model Rule of Professional Conduct 1.2(a) (2007) (“In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify”). But I know of no basis for saying that the Constitution automatically invalidates any trial action not taken by the defendant personally, though taken by his authorized counsel. I know of no way of determining, except by sheer prescription, which trial rights are ex ante and by law subject to such a limitation upon waiver. Assuredly the tactical-fundamental dichotomy does not do the trick. I would leave this matter of placing reasonable limits upon the right of agency in criminal trials to be governed by positive law, in statutes and rules of procedure.

I would hold that petitioner’s counsel’s waiver was effective because no rule or statute provides that the waiver come from the defendant personally.

Justice Thomas,

dissenting.

The Court holds today that neither the Federal Magistrates Act, 28 U. S. C. § 631 et seq., nor the Constitution requires that a criminal defendant on trial for a felony personally give his informed consent before a magistrate judge may preside over jury selection. The Court proceeds from the premise, established in Peretz v. United States, 501 U. S. 923 (1991), that the Federal Magistrates Act authorizes magistrate judges to preside over felony jury selection if the parties consent. I reject that premise and, for the reasons set forth below, would overrule Peretz and hold that the delegation of voir dire in this case was statutory error. I further conclude that the error may be corrected despite petitioner’s failure to raise a timely objection in the District Court. Accordingly, I would reverse the judgment below.

I

A

This is the third time the Court has addressed the circumstances under which a district judge may delegate felony voir dire proceedings to a magistrate judge under the “additional duties” clause of the Federal Magistrates Act, 28 U. S. C. § 636(b)(3). In Gomez v. United States, 490 U. S. 858 (1989), the Court unanimously held that § 636(b)(3) does not authorize delegation of felony voir dire proceedings to a magistrate judge. Although the defendants in Gomez had objected to the delegation, neither the Court’s reasoning nor its conclusion turned on that fact. Rather, the Court’s interpretation of § 636(b)(3) rested primarily on two inferences drawn from the statutory scheme. First, the Court reasoned that Congress’ “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.” Id., at 872. Second, the Court found it “incongruous” to assume that Congress intended felony jury selection to be among magistrate judges’ additional duties but failed to provide an explicit standard of review as it had done for other duties described in the statute. Id., at 874. Neither of these inferences depended on the presence or absence of the parties’ consent, and the Court’s conclusion was accordingly unqualified: “Congress ... did not contemplate inclusion of jury selection in felony trials among a magistrate’s additional duties.” Id., at 872; see also ibid., n. 25 (“[W]e decide that the Federal Magistrates Act does not allow the delegation of jury selection to magistrates”); id., at 875-876 (“The absence of a specific reference to jury selection in the statute, or indeed, in the legislative history, persuades us that Congress did not intend the additional duties clause to embrace this function” (footnote omitted)).

Two years later, the Court decided Peretz. Peretz’s trial took place before this Court’s decision in Gomez, and his attorney had agreed to the delegation of voir dire, assuring the Magistrate Judge that his client had consented. During the pendency of Peretz’s appeal the Court decided Gomez, and Peretz argued that Gomez required reversal of his conviction. The Court of Appeals disagreed, concluding that he had waived any challenge to the Magistrate Judge’s supervision of voir dire. Before this Court, the Government defended the Court of Appeals’ holding as to waiver but confessed error with respect to the delegation of voir dire, “agreeing] with petitioner . . . that Gomez foreclosed] the argument that the statute may be read to authorize magistrate-conducted voir dire when the defendant consents.” Brief for United States in Peretz v. United States, O. T. 1990, No. 90-615, p. 9.

Despite the Government’s confession of error, the Court, “[i]n an amazing display of interpretive gymnastics,” Peretz, supra, at 940-941 (Marshall, J., dissenting), held in a 5-to-4 decision that § 636(b)(3) does, after all, permit magistrate judges to conduct felony voir dire proceedings, so long as the parties consent. There is no need here to reproduce Peretz’s flawed reasoning or to rehash the debate between the majority and dissenting opinions. Suffice it to say that, in my view, Gomez correctly interpreted § 636(b)(3) not to authorize delegation of felony jury selection regardless of the parties’ consent, and I agree with the dissenters in Peretz that the Court’s contrary conclusion in that ease was based on a patently “revisionist construction of the Act.” 501 U. S., at 947 (opinion of Marshall, J.).

The only question, then, is whether to give stare decisis effect to Peretz’s erroneous conclusion that § 636(b)(3) authorizes magistrate judges to conduct felony jury selection if the parties consent. Although “[i]t is true that we give stronger stare decisis effect to our holdings in statutory cases than in constitutional cases,” that rule “is not absolute, and we should not hesitate to allow our precedent to yield to the true meaning of an Act of Congress when our statutory precedent is ‘unworkable’ or ‘badly reasoned.’” Clark v. Martinez, 543 U. S. 371, 401-402 (2005) (Thomas, J., dissenting). Peretz is both. Two considerations in particular convince me that Peretz should be overruled.

B

First, Peretz leaves the Court with no principled way to decide the statutory question presented in this case. Contrary to the Court’s suggestion, the question presented here is not whether “every instance of waiver requires the personal consent of the client,” ante, at 250; rather, it is the far narrower question whether § 636(b)(3) requires the defendant’s personal consent before felony jury selection may be delegated to a magistrate judge. The Court answers this question in the negative, but does not point to anything in § 636(b)(3) or in the broader statutory scheme that supports its conclusion. It does not because it cannot. Not having provided for delegation of felony voir dire proceedings under the additional duties clause, Congress of course did not specify whether the parties’ consent is required. And “[bjecause the additional duties clause contains no language predicating delegation of an additional duty upon litigant consent, it likewise contains nothing indicating what constitutes ‘consent’ to the delegation of an additional duty.” Peretz, supra, at 947, n. 6 (Marshall, J., dissenting).

Congress’ silence is particularly telling in the context of the Federal Magistrates Act. Elsewhere in the Act, Congress took great care to specify whether and in what manner the litigants must consent before a magistrate judge may assume significant duties. In § 636(c)(1), for example, Congress provided that full-time magistrate judges may conduct civil trials “[u]pon the consent of the parties,” and that part-time magistrate judges may do so “[u]pon the consent of the parties, pursuant to their specific written request.” Congress further provided in § 636(c)(2) that “[t]he decision of the parties shall be communicated to the clerk of court,” and, if the parties do not consent, the district judge may not raise the matter again without “advis[ing] the parties that they are free to withhold consent without adverse substantive consequences.” I have previously explained at length why § 636(c) is best read to require the express consent of the parties, see Roell v. Withrow, 538 U. S. 580, 591-597 (2003) (dissenting opinion), and I will not repeat that discussion here, other than to point out that Congress obviously focused on the issue and gave detailed instructions regarding the form of the parties’ consent.

Even more telling is that Congress required the defendant’s express, informed consent before a magistrate judge may conduct a misdemeanor trial. Section 636(a)(3) authorizes magistrate judges to conduct certain misdemeanor trials “in conformity with and subject to the limitations of” 18 U. S. C. § 3401, which spells out in detail the manner in which the defendant must consent:

“The magistrate judge shall carefully explain to the defendant that he has a right to trial, judgment, and sentencing by a district judge and that he may have a right to trial by jury before a district judge or magistrate judge. The magistrate judge may not proceed to try the case unless the defendant, after such explanation, expressly consents to be tried before the magistrate judge and expressly and specifically waives trial, judgment, and sentencing by a district judge. Any such consent and waiver shall be made in writing or orally on the record.” § 3401(b).

The Court recites the language of § 3401(b), but gives it no weight in its analysis. It recognizes that “[tjhere are instances in federal criminal proceedings where the procedural requisites for consent are specified and a right cannot be waived except with a defendant's own informed consent.” Ante, at 247. But it is given no pause by the fact that the Federal Magistrates Act, the very statute it interprets to permit delegation of felony proceedings without the defendant’s “own informed consent,” expressly requires such consent before a magistrate judge may conduct a misdemeanor trial. Instead, the Court worries that “requiring personal, on-the-record approval from the client could necessitate a lengthy explanation the client might not understand at the moment and that might distract from more pressing matters,” ante, at 250, heedless of the fact that Congress plainly viewed any such “burden[sj [on] the trial process,” ante, at 253, as outweighed by the need to obtain the defendant’s personal consent before a magistrate judge may preside, even over a misdemeanor trial.

The Court glides over this glaring anomaly, asserting that “[t]he controlling statute in this case has a different design,” and “does not state that consent to preside over felony voir dire must be granted by following a procedure of similar clarity.” Ante, at 247. But there is only one statute at issue here — the Federal Magistrates Act expressly incorporates 18 U. S. C. § 3401(b) — and the fact that it does not mandate “a procedure of similar clarity” for delegation of felony jury selection is hardly surprising, since § 636(b)(3) — which provides in its entirety that “[a] magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States” — says not a word about delegation of felony jury selection, much less about whether and in what form the parties must consent.

The Court further suggests that § 3401(b) is inconsequential because “there are relevant differences between presiding over a full trial and presiding over voir dire." Ante, at 252. But even Peretz recognized that “supervision of entire civil and misdemeanor trials” is “comparable in responsibility and importance to presiding over voir dire at a felony trial.” 501 U. S., at 933. And of course, it was Congress’ omission of any mode of consent for delegation of felony proceedings, in contradistinction to its detailed treatment of the consent required for delegation of civil and misdemeanor trials, that drove Gomez’s analysis. 490 U. S., at 872 (“[T]he 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”); see also Peretz, supra, at 955 (Scalia, J., dissenting) (“By specifically authorizing magistrates to perform duties in civil and misdemeanor trials, and specifying the manner in which parties were to express their consent in those situations, the statute suggested absence of authority to preside over felony trials through some (unspecified) mode of consent”). Today’s decision is truly an ironic reversal. The Court once thought that Congress’ differential treatment of felony jury selection and misdemeanor trials was a reason to believe that Congress had entirely withheld authority to preside over felony jury selection. Today, however, the Court says that the “relevant differences” between these responsibilities support the conclusion that Congress permitted delegation of felony jury selection upon a lesser showing of consent than that required for delegation of a misdemeanor trial.

In the end, I am sympathetic to petitioner’s argument that § 636(b)(3) should be read in pari materia with § 3401(b). See Brief for Petitioner 38 (“If, in enacting the [Federal Magistrates Act,] Congress believed a defendant’s explicit, personal consent was constitutionally necessary to bestow authority upon a magistrate judge in federal misdemeanor cases, then a fortiori Congress would have believed that such explicit, personal consent is necessary to permit a magistrate judge to conduct felony jury selection”). And I share his view that Congress undoubtedly would have adopted something akin to § 3401(b)’s requirements had it authorized delegation of felony jury selection. See Peretz, supra, at 947, n. 6 (Marshall, J., dissenting) (“I would think, however, that the standard governing a party’s consent to delegation of a portion of a felony trial under the additional duties clause should be at least as strict as that governing delegation of a misdemeanor trial to a magistrate”).

Nonetheless, I do not believe that Peretz’s erroneous interpretation of § 636(b)(3) gives me license to rewrite the Federal Magistrates Act to reflect what I think Congress would have done had it contemplated delegation of felony jury selection or foreseen the Court’s decision in Peretz. Cf. Brief for Petitioner 33 (“What the Court is left to do in petitioner’s ease is to fill the gap by determining what Congress would have done in enacting the [Federal Magistrates Act] had it expressly addressed the 'crucial’ consent issue” (footnote omitted)). Where, as here, a mistaken interpretation of a statute leaves the Court with no principled way to answer subsequent questions that arise under the statute, it seems to me that the better course is simply to acknowledge and correct the error. Cf. Kimbrough v. United States, 552 U. S. 85,116 (2007) (Thomas, J., dissenting).

C

A second reason why I would not give stare decisis effect to Peretz is that it requires us to wade into a constitutional morass. In Gomez, the Court declined to decide whether the Constitution permits delegation of felony jury selection to a magistrate judge. 490 U. S., at 872, n. 25. Peretz simply brushed aside that difficult constitutional question. See 501 U. S., at 936 (“There is no constitutional infirmity in the delegation of felony trial jury selection to a magistrate when the litigants consent”); cf. id., at 948-952 (Marshall, J., dissenting) (discussing the “serious constitutional question” “whether jury selection by a magistrate — even when a defendant consents — is consistent with Article III”); id., at 956 (Scalia, J., dissenting) (not resolving “the serious and difficult constitutional questions raised by the [majority’s] construction,” but suggesting that the Court’s reasoning rendered “the doctrine of unconstitutional delegation” “a dead letter”).

Today the Court’s result requires it to go even further. In addition to reaffirming Peretz’s questionable holding that the Constitution permits delegation of felony voir dire proceedings to a non-Article III judge, the Court decides that a criminal defendant’s waiver of his right to an Article III judge need not be personal and informed. The Court treats this as an easy question, concluding that the choice between an Article III judge and a magistrate judge is not among those “basic trial choices,” ante, at 250, that require a defendant’s personal consent because “a magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination and selection,” and because magistrate judges are supervised by Article III judges, ante, at 251-252. Under our precedents, however, the question is not so easily dispatched.

Our cases shed little light on whether and when a criminal defendant must personally waive a constitutional right. Although we have previously stated that, “[f]or certain fundamental rights, the defendant must personally make an informed waiver,” New York v. Hill, 528 U. S. 110, 114 (2000), many of the cases we have cited for that proposition do not in fact stand for it. For example, we have cited Brookhart v. Janis, 384 U. S. 1 (1966), for the proposition that the defendant’s personal consent is required for a waiver of his right to plead not guilty. See, e. g., Hill, supra, at 114. But Brookhart’s holding was narrower. The only question presented there was “whether counsel has power to enter a plea which is inconsistent with his client’s expressed desire and thereby waive his client’s constitutional right to plead not guilty and have a trial in which he can confront and cross-examine the witnesses against him.” 384 U. S., at 7 (emphasis added). Brookhart thus did not decide whether the Constitution prohibits counsel from entering a guilty plea on his client’s behalf in cases where the defendant has not expressed a contrary desire.

Similarly, Patton v. United States, 281 U. S. 276 (1930), a case often cited for the proposition that the right to a jury trial can be waived only by the defendant personally, does not draw a clear distinction between the defendant’s own consent and that of his attorney. The Court stated in dicta that “the express and intelligent consent of the defendant” is required “before any waiver [of the right to a jury trial] can become effective.” Id., at 312. But that requirement appears to have been satisfied in Patton by counsel’s representation to the trial court that he had conferred with his clients and obtained their consent. Id., at 286-287.

Our cases thus provide little relevant guidance. Justice Scalia may well be correct that, as a matter of first principles, there is no right (other than perhaps the sui generis right to counsel) that cannot be waived by a defendant’s attorney, acting as the duly authorized agent of his client. See ante, at 257 (opinion concurring in judgment). But if I were to accept the Court’s oft-repeated dictum that there are certain fundamental rights that can be waived only by the defendant personally, see, e. g., Florida v. Nixon, 543 U. S. 175,187 (2004) (“[C]ertain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate”); Hill, supra, at 114; Taylor v. Illinois, 484 U. S. 400,417-418 (1988) (“[T]here are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client”), I see no reason why the right to an Article III judge should not be among them.

There is no apparent reason, for example, why the right to an Article III judge should be deemed any less fundamental, or its exercise any more “ ‘tactical/ ” ante, at 249 (opinion of the Court) (quoting Taylor, supra, at 418), than the right to a jury trial. The Framers viewed independent judges, no less than the right to a jury of one’s peers, as indispensable to a fair trial. See, e. g., United States v. Hatter, 532 U. S. 557, 568-569 (2001) (discussing the Framers’ overriding concern for an independent Judiciary and quoting Chief Justice Marshall’s statement that the “‘greatest scourge . . . ever inflicted’ ” “ ‘was an ignorant, a corrupt, or a dependent Judiciary’” (quoting Proceedings and Debates of the Virginia State Convention, of 1829-1830, p. 619 (1830))). For that reason, the Constitution affords Article III judges the structural protections of life tenure and salary protection. Art. Ill, §1. The Court’s observation that “a magistrate judge is capable of competent and impartial performance” of judicial duties, ante, at 251, is thus beside the point. Magistrate judges do not enjoy the structural protections of Article III: They serve 8-year terms and may be removed for cause, 28 U. S. C. §§ 631(e), (i), and they are subject to diminution of their salaries and outright abolition of their offices by Congress. Accordingly, whatever their virtues, magistrate judges are no substitute for Article III judges in the eyes of the Constitution.

In short, if I accepted the Court’s dictum that the right to a jury trial may be waived only by the defendant personally, see, e. g., Nixon, supra, at 187, I would be hard pressed to conclude that waiver of the right to an Article III judge during a critical stage of a felony trial requires anything less. That said, I include this brief discussion of the constitutional issues this case presents not because I would decide them, but to point out that the Court gives them short shrift. These are serious constitutional questions, see Roell, 538 U. S., at 595 (Thomas, J., dissenting), and they are posed only because of Peretz’s erroneous interpretation of the Federal Magistrates Act. Indeed, I suspect that Congress withheld from magistrate judges the authority to preside during felony trials precisely in order to avoid the constitutional questions Peretz now thrusts upon us. Again, rather than plow headlong into this constitutional thicket, the better choice is simply to overrule Peretz. Cf. Peretz, 501 U. S., at 952 (Marshall, J., dissenting) (finding the Court’s resolution of difficult Article III questions “particularly unfortunate” where “the most coherent reading of the Federal Magistrates Act avoids these problems entirely”).

II

Because I conclude that Peretz should be overruled, and that the District Court therefore erred in delegating voir dire to the Magistrate Judge, I must also address the Government’s alternative argument that petitioner forfeited his claim by failing to object to the delegation. Petitioner’s failure to object, the Government contends, means that he cannot prevail unless he satisfies the requirements of the plain-error rule. It is true that petitioner did not raise a timely objection to the District Court’s delegation of voir dire. And petitioner cannot satisfy the plain-error rule because the statutory error below — unauthorized delegation of voir dire to a magistrate judge — was not “plain” under Peretz.

Not all uncontested errors, however, are subject to the plain-error rule. In limited circumstances, we have “agreed to correct, at least on direct review, violations of a statutory provision that embodies a strong policy concerning the proper administration of judicial business even though the defect was not raised in a timely manner.” Nguyen v. United States, 539 U. S. 69, 78 (2003) (internal quotation marks omitted). In Nguyen, a non-Article III judge sat by designation on the Ninth Circuit panel that affirmed petitioners’ convictions. Petitioners failed to object to the composition of the panel in the Ninth Circuit and raised the issue for the first time in their petitions for certiorari. Because the Ninth Circuit panel “contravened the statutory requirements set by Congress for the composition of the federal courts of appeals,” id., at 80, and because those requirements “embodied] weighty congressional policy concerning the proper organization of the federal courts,” id., at 79, we held that petitioners’ failure to object did not preclude relief. We specifically declined to apply the plain-error rule:

“It is true, as the Government observes, that a failure to object to trial error ordinarily limits an appellate court to review for plain error. See 28 U. S. C. §2111; Fed. Rule Crim. Proc. 52(b). But to ignore the violation of the designation statute in these cases would incorrectly suggest that some action (or inaction) on petitioners’ part could create authority Congress has quite carefully withheld. Even if the parties had expressly stipulated to the participation of a non-Article III judge in the consideration of their appeals, no matter how distinguished and well qualified the judge might be, such a stipulation would not have cured the plain defect in the composition of the panel.” Id., at 80-81.

I see no reason to treat this case differently than Nguyen. Just as “Congress’ decision to preserve the Article III character of the courts of appeals [was] more than a trivial concern” in that case, id., at 80, so too here Congress’ decision to preserve the Article III character of felony trials “embodies weighty congressional policy concerning the proper organization of the federal courts,” id., at 79. Accordingly, as in Nguyen, the Court can and should correct the error in this case despite petitioner’s failure to raise a timely objection below.-

Ill

For the reasons stated, I would reverse the judgment of the Court of Appeals and remand for a new trial.

       On the right to jury, Thompson v. Utah, 170 U. S. 343 (1898), held, at most, that the right was not waivable. Id., at 353-354. The Court later questioned whether Thompson even held that, and went on to hold that the right is waivable. See Patton v. United States, 281 U. S. 276, 293 (1930). The observation at the end of Patton that “before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant,” id., at 312, was dictum; the Patton defendants had all agreed to the waiver, id., at 286-287. Even less germane is Adams v. United States ex rel. McCann, 317 U. S. 269 (1942), which held only that an unrepresented defendant can waive his right to jury without the advice of counsel. Id., at 278-279.
      On the right to trial, Brookhart v. Janis, 384 U. S. 1 (1966), held only that a defendant’s expressed wish to proceed to trial must prevail over his attorney’s contrary opinion. See id., at 7-8. Other decisions have said that waiver of the right to trial must be knowing and voluntary, see, e. g., Brady v. United States, 397 U. S. 742, 748 (1970), but waiver by counsel was not at issue in those cases. Even if, in the case of waiver by counsel, the knowing and voluntary requirement applies to the defendant himself, that still permits counsel to waive on behalf of an informed and agreeing client. Equally inapposite is Boykin v. Alabama, 395 U. S. 238 (1969), which held that a knowing and voluntary waiver of the right to trial cannot be inferred from a silent record. Id., at 244.

       We have avoided addressing whether the right has a basis in the Constitution. In Gomez v. United States, 490 U. S. 858 (1989), we interpreted the Federal Magistrates Act, 28 U. S. C. § 636(b)(3), not to permit a magistrate judge to oversee voir dire, 490 U. S., at 875-876, making it unnecessary to consider whether there was a constitutional right to have an Article III judge oversee voir dire. In Peretz v. United States, 501 U. S. 923 (1991), we held that judicial overseeing of the voir dire had been waived, id., at 936-937, which obviated having to decide whether it was a constitutional right. See United States v. Olano, 507 U. S. 725, 732-733 (1993) (waiver extinguishes the error of not complying with a legal rule).

      Equally beside the point is the fact that magistrate judges are appointed by, and subject to the supervision of, district judges. The Court reassures itself by hypothesizing that the District Court could have ruled on any objections to the Magistrate Judge’s rulings. Ante, at 251-252. But the Court once “harbor[ed] serious doubts” that a district judge who was not present during jury selection could “meaningfully” review a magistrate judge’s rulings, Gomez v. United States, 490 U. S. 858, 874 (1989), because “no transcript can recapture the atmosphere of the voir dire,” id., at 875. The Court does not explain what has intervened to dispel those doubts. And even if district judges could meaningfully review magistrate judges’ voir dire rulings, that would not change the fact that magistrate judges are subject to outside influences in ways that Article III judges are not. As Judge Posner has explained:
      “The fact that the appointing power has been given to Article III judges is the opposite of reassuring. It makes magistrates beholden to judges as well as to Congress. . . . The Constitution built internal checks and balances into the legislative branch by making Congress bicameral and into the judicial branch by guaranteeing all federal judges — not just Supreme Court Justices, or appellate judges generally — tenure during good behavior and protection against pay cuts. Appellate judges can reverse district judges, can mandamus them, can criticize them, can remand a case to another judge, but cannot fire district judges, cow them, or silence them — cannot prevent them from making independent judgments and expressing independent views. . . . [A]s long as [district judges] enjoy the tenure and compensation protections of Article III, they are independent of [those] who appointed them____ Magistrates do not have those protections; the judges control their reappointment.” Geras v. Lafayette Display Fixtures, Inc., 742 F. 2d 1037, 1053 (CA7 1984) (dissenting opinion).


source: Caselaw Access Project

author: Justice Stevens Justice Breyer,

license: Public Domain

text:
    UNITED STATES v. RESSAM
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
    No. 07-455.
    Argued March 25, 2008
    Decided May 19, 2008

      Attorney General Mukasey argued the cause for the United States. On the briefs were Solicitor General Clement, Assistant Attorney General Wainstein, Deputy Solicitor General Dreeben, Toby J. Heytens, and John F. De Pue.

      Thomas W. Hillier II argued the cause for respondent. With him on the brief were Laura E. Mate and Lissa Wolfendale Shook

        Donald B. Ayer, Samuel Estreicher, Meir Feder, and Jeffrey L. Fisher filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.

   Justice Stevens

delivered the opinion of the Court.

Respondent attempted to enter the United States by car ferry at Port Angeles, Washington. Hidden in the trunk of his rental car were explosives that he intended to detonate at the Los Angeles International Airport. After the ferry docked, respondent was questioned by a customs official, who instructed him to complete a customs declaration form; respondent did so, identifying himself on the form as a Canadian citizen (he is Algerian) named Benni Noris (his name is Ahmed Ressam). Respondent was then directed to a secondary inspection station, where another official performed a search of his car. The official discovered explosives and related items in the car’s spare tire well.

Respondent was subsequently convicted of a number of crimes, including the felony of making a false statement to a United States customs official in violation of 18 U. S. C. § 1001 (1994 ed., Supp. V) (Count 5) and carrying an explosive “during the commission of” that felony in violation of § 844(h)(2) (1994 ed.) (Count 9). The Court of Appeals for the Ninth Circuit set aside his conviction on Count 9 because it read the word “during,” as used in § 844(h)(2), to include a requirement that the explosive be carried “in relation to” the underlying felony. 474 F. 3d 597, 601 (2007). Because that construction of the statute conflicted with decisions of other Courts of Appeals, we granted certiorari. 552 U. S. 1074 (2007).

I

The most natural reading of the relevant statutory text provides a sufficient basis for reversal. That text reads:

“Whoever—
“(1) uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States, or
“(2) carries an explosive during the commission of any felony which may be prosecuted in a court of the United States,
“including a felony which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 10 years.” 18 U. S. C. §844(h).

It is undisputed that the items hidden in respondent’s car were “explosives.” It is also undisputed that respondent was “carr[ying]” those explosives when he knowingly made false statements to a customs official, and that those statements violated § 1001 (1994 ed., Supp. V).

There is no need to consult dictionary definitions of the word “during” in order to arrive at the conclusion that respondent engaged in the precise conduct described in § 844(h)(2) (1994 ed.). The term “during” denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because respondent’s carrying of the explosives was contemporaneous with his violation of § 1001, he carried them “during” that violation.

II

The history of the statute we construe today further supports our conclusion that Congress did not intend to require the Government to establish a relationship between the explosive carried and the underlying felony. Congress originally enacted § 844(h)(2) as part of its “Regulation of Explosives” in Title XI of the Organized Crime Control Act of 1970, 84 Stat. 957. The provision was modeled after a portion of the Gun Control Act of 1968, § 102,82 Stat. 1224, codified, as amended, at 18 U. S. C. § 924(c) (2000 ed. and Supp. V). The earlier statute mandated at least 1 and no more than 10 years’ imprisonment for any person who “carries a firearm unlawfully during the commission of any felony which may be prosecuted in a court of the United States.” 18 U. S. C. § 924(c)(2) (1964 ed., Supp. IV). Except for the word “explosive” in § 844(h)(2), instead of the word “firearm” in § 924(c)(2), the two provisions as originally enacted were identical.

In 1984, Congress redrafted the firearm statute; it increased the penalties attached to the provision and, most significantly for our purposes, deleted the word “unlawfully” and inserted the words “and in relation to” immediately after the word “during.” § 1005(a), 98 Stat. 2138. Reviewing a conviction for an offense that was committed before the amendment but not decided on appeal until after its enactment, the Ninth Circuit held that the original version of the firearm statute had implicitly included the “in relation to” requirement that was expressly added while the case was pending on appeal. As then-judge Kennedy explained:

“The statute as written when Stewart committed the offense provided in pertinent part that it was a crime to (carr[y] a firearm unlawfully during the commission of any felony____’ 18 U. S. C. § 924(c)(2) (1982). In 1984, Congress revised section 924(c).... The 1984 amendment substituted for the word ‘during’ the phrase ‘during and in relation to.’ 18 U. S. C. A. § 924(c) (West Supp. 1985) (emphasis added). Our study of the legislative history of the amendment... indicates the ‘in relation to’ language was not intended to create an element of the crime that did not previously exist, but rather was intended to make clear a condition already implicit in the statute. The legislative history reveals that because the amendment eliminated the requirement that the firearm be carried unlawfully, 18 U. S. C. A. § 924(c) (West Supp. 1985), the ‘in relation to’ language was added to allay explicitly the concern that a person could be prosecuted under section 924(e) for committing an entirely unrelated crime while in possession of a firearm. Though the legislative history does not say so expressly, it strongly implies that the ‘in relation to’ language did not alter the scope of the statute . . . .” United States v. Stewart, 779 F. 2d 538, 539-540 (1985) (citations omitted).

Relying on that Circuit precedent, the Court of Appeals in this case concluded that the explosives statute, like the firearm statute, implicitly included a requirement of a relationship between possession of the item in question and the underlying felony. Whatever the merits of the argument that § 924(c) as originally enacted contained a relational requirement, the subsequent changes to both statutes convince us that the Government’s reading of § 844(h) as presently written is correct.

Ill

In 1988, Congress enacted the “Explosives Offenses Amendments,” § 6474(b), 102 Stat. 4379, which modified the text of § 844(h). Those amendments increased the penalties for violating the provision, § 6474(b)(2), id., at 4380; they also deleted the word “unlawfully,” § 6474(b)(1), ibid. Unlike its earlier amendment to the firearm statute, however, Congress did not also insert the words “and in relation to” after the word “during.” While it is possible that this omission was inadvertent, that possibility seems remote given the stark difference that was thereby introduced into the otherwise similar texts of 18 U. S. C. §§ 844(h) and 924(c).

Even if the similarity of the original texts of the two statutes might have supported an inference that both included an implicit relationship requirement, their current difference virtually commands the opposite inference. While the two provisions were initially identical, Congress’ replacement of the word “unlawfully” in the firearm statute with the phrase “and in relation to,” coupled with the deletion of the word “unlawfully” without any similar replacement in the explosives statute, convinces us that Congress did not intend to introduce a relational requirement into the explosives provision, but rather intended us to accept the more straightforward reading of § 844(h). Since respondent was carrying explosives when he violated §1001, he was carrying them “during” the commission of that felony. The statute as presently written requires nothing further.

Accordingly, the judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Thomas, with whom Justice Scalia joins, concurring in part and concurring in the judgment.

Because the plain language of the statute squarely answers the question presented in this case, I join only Part I of the Court’s opinion.

Justice Breyer,

dissenting.

The statute before us imposes a mandatory 10-year sentence on any person who “carries an explosive during the commission of any [federal] felony.” 18 U. S. C. § 844(h)(2). The Ninth Circuit interpreted the statute as requiring a “relation” between the explosives carrying and the felony (here, making a false statement to a customs officer), such that the explosives carrying “ ‘facilitated’ ” or “aided” the commission of the felony. 474 F. 3d 597, 604 (2007). The Court interprets the statute to the contrary. It holds that the statute requires no more than a “temporal link” between the explosives carrying and the felony, that is to say, the two need only have occurred at the same time. See ante, at 274. I cannot agree with either interpretation.

I

My problem with the Court’s interpretation is that it would permit conviction of any individual who legally carries explosives at the time that he engages in a totally unrelated felony. “Explosives,” the statute tells us, includes not only obviously explosive material such as “gunpowders” and “dynamite” but also any “chemical compounds” or “mixturéis]” or “device[s]” whose “ignition by fire, by friction, by concussion” or other means “may cause an explosion.” 18 U. S. C. §844(j). And that definition encompasses such commonplace materials as kerosene, gasoline, or certain fertilizers. Moreover, the “carr[ying]” to which the statute refers includes carrying that is otherwise legal. Further, the statute applies to the carrying of explosives during “any” federal felony, a category that ranges from murder to mail fraud. See § 1111 (2000 ed. and Supp. V); § 1341 (2000 ed., Supp. V).

Consequently the Court’s opinion brings within the statute’s scope (and would impose an additional mandatory 10-year prison term upon), for example, a farmer lawfully transporting a load of fertilizer who intentionally mails an unauthorized lottery ticket to a friend, a hunter lawfully carrying gunpowder for shotgun shells who buys snacks with a counterfeit $20 bill, a truckdriver lawfully transporting diesel fuel who lies to a customs official about the value of presents he bought in Canada for his family, or an accountant who engaged in a 6-year-long conspiracy to commit tax evasion and who, one day during that conspiracy, bought gas for his lawnmower. In such instances the lawful carrying of an “explosive” has nothing whatsoever to do with the unlawful felonies. I cannot imagine why Congress would have wanted the presence of totally irrelevant, lawful behavior to trigger an additional 10-year mandatory prison term.

The statute’s language does not demand such an interpretation. I agree with the majority that the word “during” requires a “temporal link.” See ante, at 274. But a statement that uses the word “during” may or may not imply other limitations as well, depending upon the context in which the statement is made. Thus, when I tell a friend from Puerto Rico, “I wear gloves during Washington’s winter,” he does not think I mean baseball mitts. Rather, I imply (and he understands) a relation or link between the gloves and the winter. When I say to a group of lawyers, “I take notes during oral argument,” I imply (and they understand) that the notes bear a relation to the law being argued. But when I say, “I called my brother during the day,” I do not imply any particular relation (other than a temporal relation) between the day and the phone call. Context makes the difference.

Here, the statute’s context makes clear that the statutory statement does not cover a “carrying]” of explosives that is totally unrelated to the “felony.” The lengthy mandatory minimum sentence is evidence of what the statute’s legislative history separately indicates, namely, that Congress sought to criminalize and impose harsh penalties in respect to the “intentional misuse of explosives,” see H. R. Rep. No. 91-1549, p. 38 (1970) (hereinafter H. R. Rep.) (emphasis added). A person who lawfully carries explosives while committing some other felony does not even arguably “misuse” those explosives unless the carrying has something to do with the other felony. Nor in the absence of some such relationship is there any obvious reason to impose an additional mandatory 10-year sentence on a person who unlawfully carries explosives while committing some other felony.

Similar reasoning led the Ninth Circuit in 1985 to interpret a related statute, which punished the carrying of a firearm “during” the commission of a federal felony, as requiring a significant relationship between the firearms carrying and the other felony. See United States v. Stewart, 779 F. 2d 538. Justice (then-judge) Kennedy recognized that “‘Congress did not intend to penalize one who happens to have a gun in his possession when he commits an entirely unrelated offense.’” Id., at 540 (quoting United States v. Moore, 580 F. 2d 360, 362 (CA9 1978)). In my view, that same reasoning should apply when we interpret the explosives statute, which was originally modeled on the firearms statute. See H. R. Rep., at 69 (the explosives statute “carries over to the explosives area the stringent provisions of the Gun Control Act of 1968 relating to the use of firearms and the unlawful carrying of firearms to commit, or during the commission of a Federal felony”).

I recognize that the language of the firearms statute now differs from the language of the explosives statute in an important way. The firearms statute originally punished (with a l-to-10-year sentence) a person who “carries a firearm unlawfully during the commission of any [federal] felony.” 18 U. S. C. § 924(c)(2) (1964 ed., Supp. IV). In 1984, Congress amended the firearms statute by providing a mandatory minimum punishment of five years and by striking the word “unlawfully.” § 1005(a), 98 Stat. 2138. When it did so, Congress also added to the statute specific words of limitation, namely, the words “and in relation to” (so that the statute covered any person who carried a firearm “during and in relation to” the commission of a “felony”). Ibid.

The words “in relation to” do not appear in the explosives statute. But neither did those words appear in the pre-1984 version of the firearms statute that was the subject of the Ninth Circuit opinion in Stewart (yet the Ninth Circuit nonetheless found an implicit relational requirement). And the fact that these words now appear in the firearms statute but not the explosives statute cannot make the determinative difference.

The history of the firearms statute makes clear that the reason Congress added to that statute the words “in relation to” has to do with Congress’ decision to remove from the firearms statute the word “unlawfully.” By removing that word, Congress indicated that the firearms statute should apply to “persons who are licensed to carry firearms” but who “abuse that privilege by committing a crime with the weapon.” S. Rep. No. 98-225, p. 314, n. 10 (1983). At the same time, however, Congress believed that the statute should not apply where the firearm’s presence “played no part in the crime, such as a gun carried in a pocket and never displayed or referred to in the course of a pugilistic barroom fight.” Ibid. The addition of the words “in relation, to” made this dual objective textually clear.

The absence of the words “in relation to” here must lead us to ask (but it does not answer) the question: Did Congress intend something different in respect to the explosives statute? There are strong reasons for thinking it did not. Congress, after all, amended the explosives statute in response to the Department of Justice’s express request to “bring” the explosives statute “in line with” the firearms statute. See 131 Cong. Rec. 14166 (1985); see also 134 Cong. Rec. 32700 (1988) (statement of Sen. Biden) (noting that the purpose of amending the explosives statute was to “bring it in line with similar amendments [previously] adopted . . . with respect to the parallel offense of using or carrying a firearm during the commission of federal offenses”). Congress accordingly increased the mandatory minimum punishment to five years and struck the word “unlawfully.” See § 6474(b), 102 Stat. 4379-4380. If Congress, in neglecting to add the words “in relation to,” sought to create a meaningful distinction between the explosives and firearms statutes, one would think that someone somewhere would have mentioned this objective.

Further, to read the two statutes differently would break the very parallel treatment of firearms and explosives that led Congress, at the Department of Justice’s urging, to amend the explosives statute in the first place. It would produce the peculiar and unfair results I previously mentioned. See supra, at 278-279. It would conflict with Congress’ original rationale for enacting the explosives statute (to punish the misuse of explosives). And it would risk incoherent results: Why would Congress wish not to punish a policeman for carrying an unrelated revolver during the commission of a felony, but then wish to punish that same policeman for carrying unrelated gunpowder for unrelated bullets?

At the same time one can explain the absence of the words “in relation to” in less damaging ways. The legislative drafters of the explosives amendment may have assumed that prior judicial interpretation (namely, United States v. Stewart, supra) made the words “in relation to” unnecessary. See Lorillard v. Pons, 434 U. S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change”). Or, as the majority recognizes, the omission of the language may reflect simple drafting inadvertence. See ante, at 277.

I concede that the presence of a phrase in one statute and the absence of the same phrase in another related statute can signal an intended difference in relative statutory scope. But that is not inevitably so. Cf. Russello v. United States, 464 U. S. 16, 23 (1983) (noting only a presumption that Congress has acted intentionally and purposely if it “includes particular language in one section of a statute but omits it in another section of the same Act” (internal quotation marks omitted)). And here the circumstances that I have mentioned make this a ease in which that linguistic fact is not determinative.

No more here than elsewhere in life can words alone explain every nuance of their intended application. Context matters. And if judges are to give meaningful effect to the intent of the enacting legislature, they must interpret statutory text with reference to the statute’s purpose and its history.

The Court, with its decision today, makes possible the strange results I describe above precisely because it resolves the statutory interpretation question by examining the meaning of just one word in isolation. In context, however, the language excludes from the statute’s scope instances in which there is no significant relation between the explosives carrying and the felony. A contextual interpretation furthers Congress’ original purpose, is less likely to encourage random punishment, and is consistent with the statute’s overall history. As a result, like the Ninth Circuit, I would read the statute as insisting upon some (other than merely temporal) relationship between explosives carrying and “felony.”

II

At the same time, I cannot agree with the Ninth Circuit that the statute restricts the requisite relationship to one in which the carrying of the explosives “‘facilitated’” (or “aided”) the felony. 474 F. 3d, at 604. In my view, the statute must also cover a felony committed to facilitate the carrying of explosives. Why should it matter in which direction the facilitating flows? Either way, there is a relation between the carrying of explosives and the other felony. Either way, one might reasonably conclude that the presence of the explosives will elevate the risks of harm that otherwise would ordinarily arise out of the felony’s commission. Either way, one might consider the explosives “misused.” Thus, I believe the statute applies if the felony, here, the making of a false statement to a customs officer, facilitated or aided the carrying of explosives. And I would remand the case for the Circuit to determine the presence or absence of that relevant relation.

For these reasons, I respectfully dissent.

       Both the Third and Fifth Circuits have declined to interpret § 844(h)(2) as requiring that the explosive be carried in relation to the underlying felony. See United States v. Rosenberg, 806 F. 2d 1169, 1178-1179 (CA3 1986) (“The plain everyday meaning of ‘during’ is ‘at the same time’ or ‘at a point in the course of’ ... . It does not normally mean ‘at the same time and in connection with----’ It is not fitting for this court to declare that the crime defined by § 844(h)(2) has more elements than those enumerated on the face of the statute”); United States v. Ivy, 929 F. 2d 147, 151 (CA5 1991) (“Section 844(h)(2)... does not include the relation element Ivy urges .... We . .. refuse to judicially append the relation element to § 844(h)(2)”).

       Because respondent concedes that the items in his car were “explosives,” we have no occasion to determine the boundaries of that term as used in the statute. Specifically, we do not comment on when, if ever, “such commonplace materials as kerosene, gasoline, or certain fertilizers,” post, at 278 (Breyer, J., dissenting), might fall within the definition of “explosive.”