900 F.

2d 493
90-1 USTC P 70,001, 30 Fed. R. Evid. Serv. 71

UNITED STATES of America, Appellee,

v.
John MUSACCHIA and Joseph Gambino, DefendantsAppellants.
Nos. 967, 968, Dockets 88-1491, 88-1495.

United States Court of Appeals,

Second Circuit.
Argued March 6, 1989.
Decided March 21, 1990.
1

Paula Schwartz Frome (James O. Druker, Kase & Druker, Garden City, N.Y.,
of counsel), for defendant-appellant John Musacchia.

Charles L. Weintraub (John L. Pollok, Hoffman & Pollok, New York City, of
counsel), for defendant-appellant Joseph Gambino.

Alan Hechtkopf, Tax Div., Dept. of Justice (James I.K. Knapp, Acting Asst.
Atty. Gen., Shirley D. Peterson, Asst. Atty. Gen., Washington, D.C., Robert E.
Lindsay, Atty., Tax Div., Dept. of Justice, Washington, D.C., and Andrew J.
Maloney, U.S. Atty., E.D.N.Y., of counsel), for appellee U.S.

Before CARDAMONE and PRATT, Circuit Judges, and LASKER, District

Judge* .
LASKER, District Judge:

John Musacchia and Joseph Gambino appeal their convictions on one count of
conspiracy to defraud the United States by willfully failing to pay gasoline
excise taxes in violation of 18 U.S.C. Sec. 371 (1988) and 26 U.S.C. Secs.
7201, 7202 and 7206(2) (1982). Musacchia appeals his conviction on six
additional counts of aiding and abetting evasion of such taxes.

Appellants contend that it was reversible error for the prosecution to bolster the

testimony of three witnesses by eliciting testimony on direct examination that

their cooperation agreements with the government required them to tell the
truth. Musacchia also asserts that the statute of limitations bars his prosecution
on the six counts charging aiding and abetting of substantive tax evasion
offenses under Secs. 7201 and 7202. In supplemental briefing following the
Supreme Court's holding in Gomez v. United States, --- U.S. ----, 109 S.Ct.
2237, 104 L.Ed.2d 923 (1989) (holding jury selection by magistrates not
authorized under the Federal Magistrates Act), appellants urge reversal because
they did not consent to jury selection by a magistrate. For the reasons discussed
below, we conclude that the appeals are without merit and affirm.
BACKGROUND
7

Musacchia owned and operated O.K. Petroleum ("O.K."), a corporation that

sold gasoline and heating oil through retail and wholesale outlets in New York
State. During the period at issue federal law imposed an excise tax of nine cents
on gasoline sold by producers and certain wholesale distributors. In December
1982, O.K. applied for a Registration for Tax-Free Transactions ("Form 637")
from the Internal Revenue Service ("IRS"), which would exempt the company
from the excise tax. O.K.'s application was never approved. Thereafter O.K.
made large purchases of gasoline from two distributors but refused to pay the
distributors the money due for federal excise taxes, representing first that the
purchases were tax-exempt because O.K. was about to receive, and then that it
had received, a Form 637. O.K. also purchased gasoline from General Oil
Distributors, Inc. ("General Oil") in 1983 and failed to pay $270,000 in excise
taxes by representing that it held a valid Form 637. When General Oil
discovered that O.K. lacked a Form 637 it barred all tax-exempt sales to O.K.

Musacchia subsequently devised a "daisy chain scheme" to purchase untaxed

gasoline. Under this scheme Rappaport Fuel Company ("Rappaport"), which
held a valid Form 637, would purchase tax-exempt gasoline from various
suppliers and then create fictitious invoices for sales to transient front
companies that were not controlled by appellants, but which they formed for
the specific purpose of evading excise taxes. These companies had valid Forms
637 and operated only long enough to allow Rappaport to document the
fictitious sales. Rappaport would in fact distribute the gasoline to Musacchia.
Two companies that Musacchia controlled, AKA Petroleum ("AKA") and
CWM Petroleum ("CWM") paid the distributors for the gasoline purchased by
Rappaport. Through this scheme Musacchia purchased more than 8 million
gallons of gasoline on which he failed to pay taxes of more than $777,000.

Gambino assisted Musacchia in forming AKA and concealing Musacchia's

involvement in the company. Gambino solicited Joseph J. Ribando, Gambino's

brother-in-law, to sign on as president of AKA and Luis Cuomo to act as
Treasurer. Ribando opened a bank account and mail drop for AKA and signed
checks at Gambino's request. He had virtually no other involvement with the
company. Cuomo, the treasurer, had even less involvement than Ribando. Both
ultimately resigned. Gambino also helped Musacchia to operate the front
companies and to persuade Herman DeJonge, the owner of Rappaport, to make
untaxed sales to Musacchia.
I. BOLSTERING
10

During direct examination of Arthur Williams (a principal in CWM), Cuomo,

Ribando and DeJonge, the government elicited testimony that cooperation
agreements between the witnesses and the government required the witnesses to
tell the truth and provided that if they lied on the witness stand they would be
subject to prosecution for perjury. Appellants first objected, without stating
grounds, to the prosecutor's questions to Ribando and Williams about these
"truth-telling" provisions but these objections were overruled by the judge.
After the judge overruled Musacchia's objection to the prosecutor's question to
DeJonge about the requirement in his agreement that he testify truthfully,
defense counsel moved for a mistrial on the ground that the government had
improperly bolstered the testimony of Williams, Cuomo and Siegal prior to any
defense attack on their credibility.1 The judge denied the motion but gave the
following curative instruction to the jury:

11 government has brought out testimony from several witnesses that I've decided
The
should not have been brought out concerning the possibility of being prosecuted for
testifying falsely. So the testimony concerning testifying falsely, I am instructing
you to disregard those statements.
12

Appellants now claim that, despite this curative instruction, the government's
deliberate and improper questioning of Williams, Cuomo and Ribando about
the truth-telling provisions of their agreements and the court's failure to sustain
appellants' timely objections constitute reversible error. 2 The government
concedes that the defense did not attack the credibility of Ribando, Cuomo and
Williams before they testified but argues that even if subject to review, the
error alleged by appellants was harmless because: 1) the judge gave a curative
jury instruction; 2) defense counsel conceded during their argument for a
mistrial that the entire testimony of Ribando and Williams was truthful, and
therefore any bolstering was not prejudicial; and 3) Williams' statement was
rendered harmless by a subsequent attack on his credibility by Musacchia's
counsel and by the peripheral nature of his testimony.

13

The government argues at the outset that appellants' claim of error resulting
from the admission of the cooperation agreement testimony is reversible only if
it was plain error, because appellants raised only general objections to the
testimony at trial. Appellants reply that their objections were "apparent from
the context" under Fed.R.Evid. 103(a)(1), which states that a specific ground
for objection need be raised only "if the specific ground was not apparent from
the context." Based on a review of the trial transcript, it is clear that appellants'
objections were apparent from the context. Defense counsel specifically
objected to questions about the truth-telling provisions of the agreements and
not to the testimony that the cooperation agreements were entered into by the
witnesses.3 Accordingly, the objections were preserved for review.
This court has consistently held that:

14

Because of the bolstering potential of cooperation agreements ... we have

permitted such agreements to be admitted in their entirety only after the
credibility of the witness has been attacked.... [B]olstering aspects [of
cooperation agreements] such as promises to testify truthfully or penalties for
failure to do so may only be developed to rehabilitate the witness after a
defense attack on credibility.

15

United States v. Cosentino, 844 F.2d 30, 33 (2d Cir.), cert. denied, --- U.S. ----,
109 S.Ct. 303, 102 L.Ed.2d 322 (1988) (footnote and citations omitted); see
United States v. Jones, 763 F.2d 518, 522 (2d Cir.), cert. denied, 474 U.S. 981,
106 S.Ct. 386, 88 L.Ed.2d 339 (1985). However, in United States v. ArroyoAngulo, 580 F.2d 1137, 1146-47 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct.
285, 58 L.Ed.2d 260 (1978), we held that because defense counsel challenged
the credibility of a government witness in the opening statement and later in
cross-examination and during summation, such challenge was inevitable, and
rendered harmless the error in admitting the witness's cooperation agreement
into evidence during direct examination.

16

The government concedes that it was error to question the witnesses about the
truth-telling provisions prior to defense challenges to credibility but contends
that such error was harmless. Appellants argue that because the prosecutor
intentionally bolstered the testimony of its witnesses the error cannot be
deemed harmless under United States v. Borello, 766 F.2d 46, 56 (2d
Cir.1985), in which the court held that the admission of and reading from the
truth-telling portions of a cooperation agreement on direct examination were
not harmless error even though the defense subsequently challenged part of
Borello's testimony. The Borello court did not find it necessary to engage in
harmless error analysis, id. at 58, stating:

17 have previously suggested that an Arroyo-Angulo error is harmless if the

[W]e
defendant subsequently attacks the witness's credibility. [United States v. Barnes,
604 F.2d 121, 151 (2d Cir.1979).] The error, however, cannot always be harmless....
[W]here we have spelled out in a series of cases the procedure for introducing
cooperation agreements ... [f]or us to disapprove of the ... bolstering of the witness's
testimony and then to declare it harmless error would make our remarks in the
previous cases purely "ceremonial." The error cannot be deemed harmless.
18

Id. at 57-58. Appellants argue that because the prosecutor in this case
deliberately questioned the witnesses regarding the truth-telling provisions of
the agreements knowing such questioning was improper under the case law of
this Circuit, the error in this case cannot be harmless and no harmless error
analysis is required under Borello. As evidence of the intentional nature of the
error appellants note that, during argument in the robing room on Musacchia's
motion for a mistrial, a member of the prosecution team offered to withdraw the
questions about the truth-telling provisions of DeJonge's agreement.

19

We disagree with appellants' assertion that the prosecutor intentionally violated

the rule against questioning the witnesses about truth-telling provisions of their
agreements on direct examination prior to any defense attack on credibility.
Indeed, the government contended during the argument on Musacchia's motion
for a mistrial, that it construed Musacchia's counsel's opening statement
challenge to DeJonge's credibility as an attack on the credibility of all
witnesses, permitting the challenged questions. By contrast, in Borello, defense
counsel did not attack the credibility of the cooperating prosecution witness
during the opening statement, leading the court to conclude that the prosecution
had intentionally violated the law. Moreover, Borello did not establish a per se
rule that such errors can never be deemed harmless but rather that they cannot
always be harmless. We conclude that the government had a good faith basis
for asking the challenged questions. Accordingly, Borello does not bar an
examination of the government's claims that the error was harmless.

20

The government contends that, because defense counsel argued during the trial
that Ribando and Cuomo were telling the truth, any bolstering of their
testimony was irrelevant to the outcome of the trial. During argument on the
mistrial motion, Musacchia's counsel stated:

21 fact the defense has been that Williams, Cuomo and Ribando are all telling the
In
truth but that we have an explanation for why they were used in this fashion. Their
credibility was not attacked, and at least two of them I didn't ask questions of....
They weren't attacked or questioned in any fashion, and as a matter of fact as I've
stated we adopt their testimony.

22

Based on this statement the government asserts that the defense conceded the
truthfulness of Cuomo's and Ribando's testimony and, accordingly, there was
no significant chance that the outcome of the trial was affected by the error.
Moreover, according to the government, counsel for Musacchia subsequently
attacked Williams' credibility by arguing in summation that Williams had
"lied," thereby rendering his earlier testimony about the truth-telling portions of
the agreement admissible under Arroyo-Angulo.

23

Appellants assert that accepting the government's argument--that the error is

harmless because Williams' credibility was challenged and Ribando and
Cuomo's testimony was not challenged--is tantamount to holding that such an
error can never be harmless, contrary to the holding in Borello.

24

However, appellants have not specified how they were prejudiced by the error.
Appellants do not dispute that Williams' testimony was peripheral.4 Their
admission during trial that their strategy involved characterizing the testimony
of Cuomo and Ribando as truthful lessens the effect of the error with respect to
those witnesses. Most importantly, Judge Wexler gave a clear curative
instruction to the jury not to consider the challenged testimony regarding the
truth-telling portions of the cooperation agreements. Given the good faith belief
by the prosecutor that the credibility of all the witnesses had been put into
question by Musacchia's opening statement and for the reasons discussed
above, we conclude that the admission of testimony regarding the truth-telling
requirements of the cooperation agreements on direct examination was
harmless error.

II. APPLICABLE STATUTES OF LIMITATION

25

Musacchia contends that the applicable statutes of limitation bar his

prosecution and subsequent conviction for the substantive crimes charged in
counts 2 through 7 of the indictment. The indictment in this case was filed
nearly four years after the date of the last act relating to counts 2 through 7.
Musacchia asserts that the applicable statute of limitations for counts 2 through
7 is three years; the district court held that the applicable limitations period was
six years. 696 F.Supp. 1548, 1550 (E.D.N.Y.1988).

26

The statute of limitations for criminal prosecutions arising under the internal
revenue laws is found in 26 U.S.C. Sec. 6531 (1982), which states in relevant
part:

27 person shall be prosecuted, tried, or punished for any of the various offenses
No
arising under the internal revenue laws unless the indictment is found or the

information instituted within 3 years next after the commission of the offense,
except that a period of limitation shall be 6 years-28

(1) for offenses involving the defrauding or attempting to defraud the United
States or any agency thereof, whether by conspiracy or not, and in any manner;

29

(2) for the offense of willfully attempting in any manner to evade or defeat any
tax or the payment thereof;

30

(3) for the offense of willfully aiding or assisting in, or procuring, counseling,
or advising, the preparation or presentation under, or in connection with any
matter arising under, the internal revenue laws, of a false or fraudulent return,
affidavit, claim, or document (whether or not such falsity or fraud is with the
knowledge or consent of the person authorized or required to present such
return, affidavit, claim, or document).

31

The numbered sections above describe offenses carrying a special six-year

limitations period rather than the general three-year statute of limitations for
internal revenue offenses. Musacchia claims that because Sec. 6531(3) is the
only internal revenue offense carrying a six-year statute of limitations which
uses the term "aiding, or assisting," the aiding and abetting of all other
substantive internal revenue offenses must carry the general three-year statute
of limitation. Accordingly, he argues, counts 2, 4 and 5 of the indictment, under
which he was convicted of aiding and abetting violations of 26 U.S.C. Secs.
7201 and 7202, must be dismissed as untimely.

32

In support of this argument, Musacchia notes that other specifically enumerated

exceptions to the general three-year statute of limitation explicitly refer to
specific offenses under the code by section number. For example, 26 U.S.C.
Sec. 6531(7) provides that one of the exceptions is "for offenses described in
section 7214(a)," which relates to intimidation of officers and employees of the
United States. Musacchia asserts that if Congress had intended, as the
government argues, to include a particular substantive offense (in this case Sec.
7202 or Sec. 7201) among those covered by Sec. 6531(3) it could have done so
by reference to that offense; because it did not do so with respect to the offense
at issue the six-year statute of limitations applies only to the offense of aiding
and abetting the filing of a false return and not to aiding and abetting of the
offenses defined in 26 U.S.C. Secs. 7201 and 7202 (counts 2, 4 and 5).

33

In United States v. Campbell, 426 F.2d 547, 553 (2d Cir.1970), this court held
that the applicable statute of limitations for the offense of aiding and abetting

under 18 U.S.C. Sec. 2 is the statute for the substantive offense charged. The
court observed:
34 U.S.C. Sec. 2 does not define a crime; rather it makes punishable as a principal
18
one who aids or abets the commission of a substantive crime.... Clearly one can
violate [26 U.S.C.] Sec. 7214(a) as an aider and abettor, and the offense, not the
persons involved, determines the applicability of the six-year period of limitation.
35

Id. Musacchia fails to address Campbell but its analysis controls in this case.
Accordingly, the statute of limitations for the substantive counts charged in the
indictment apply in this case. Counts 2, 4, and 6 charge aiding and abetting
violations under 26 U.S.C. Sec. 7201, which carries a six-year limitations
period as explicitly provided in 26 U.S.C. Sec. 6531(2). It follows that the
statute of limitations does not bar prosecution of these counts.

36

Counts 3, 5, and 7 charge aiding and abetting under 26 U.S.C. Sec. 7202-willful failure to account for and pay over gasoline excise taxes. Musacchia
argues for the first time on appeal that Sec. 7202 carries a three-year rather than
a six-year statute of limitations. Section 6531(4) mandates a six-year statute of
limitations "for the offense of willfully failing to pay any tax."5 In United States
v. Porth, 426 F.2d 519, 521-22 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct.
47, 27 L.Ed.2d 53 (1970), the court held, without analysis, that Sec. 7202 falls
within the six-year statute of limitations exception of Sec. 6531(4). Musacchia
relies on a more recent district court decision which held to the contrary, United
States v. Block, 497 F.Supp. 629 (N.D.Ga.), aff'd, 660 F.2d 1086 (5th
Cir.1980). Block held that the language of Sec. 6531(4) does not track the
language of Sec. 7202:

37seems unlikely to the Court that Congress would have used the language of so
It
many of the Sec. 7201 et seq. code sections when drafting the subsections of Sec.
6531 but omit use of the key words of Sec. 7202 if it had intended to make failure to
"pay over" third party taxes subject to the six-year statute of limitations.
38

497 F.Supp. at 632. A second factor in the Block court's determination was that

39
[Section]
6531(4) is directed at "the offense of willfully failing to pay any tax...."
(emphasis added), not a class of offenses. It is quite clear that failure to "pay over"
third party taxes [under Sec. 7202] is substantively different from failure to pay
taxes. See Slodov v. United States, 436 U.S. 238, 248-50, 98 S.Ct. 1778, 1785-1787,
56 L.Ed.2d 251 (1978).
40

Id. (footnote omitted).

41

The Block court's analysis is not convincing. Although Sec. 6531(4) does not
track the language of Sec. 7202 precisely, in the Supreme Court's decision in
Slodov v. United States, 436 U.S. 238, 249, 98 S.Ct. 1778, 1786, 56 L.Ed.2d
251 (1978), the terms "pay" and "pay over" were used interchangeably. In
Slodov, the Court interpreted 26 U.S.C. Sec. 6672, which applies to "[a]ny
person required to collect, truthfully account for, and pay over any tax," as
applying "only to failure to pay taxes...." 436 U.S. at 249, 98 S.Ct. at 1786.
Although the Court was analyzing a different provision of the code--the
significance of the word "any" modifying the word "person" under Sec. 6672-and did not focus on the distinction argued by appellants in this case, it is still
significant that the Court used the terms "pay over" and "pay" synonymously.

42

The government persuasively argues that it would be inconsistent for Congress

to have prescribed a six-year limitation period for the misdemeanor offense
defined in 26 U.S.C. Sec. 7203 (failure to file a return or pay a tax)6 while
providing only a three-year limitation period for the felony offense defined in
Sec. 7202. Moreover, the language of Sec. 6531(4)--applying the six-year
statute of limitations to "the offense of willfully failing to pay any tax, or make
any return ... at the time or times required by law or regulations"--suggests that
it applies to any of several sections of the Code that define such an offense. For
these reasons we find the reasoning of Block unpersuasive and conclude that a
six-year statute of limitations applies to the offense defined by 26 U.S.C. Sec.
7202 and thus to counts 3, 5 and 7 in the indictment. Accordingly, Musacchia's
prosecution and conviction were not barred by the applicable statutes of
limitation.
CARDAMONE, Circuit Judge:

43

We concur in our colleague Judge Lasker's thorough discussion of Part I

(Bolstering) and Part II (Statute of Limitations), which concludes that nothing
occurred during the trial which would warrant reversal of Musacchia's and
Gambino's convictions on the merits.

III. JURY SELECTION BY A MAGISTRATE

44

Following oral argument of this appeal on March 6, 1989, we granted a motion

on August 30, 1989 to withhold decision on the appeal until supplemental briefs
could be submitted on the issue of whether the magistrate conducting voir dire
of the jury warrants reversal in light of Gomez v. United States, --- U.S. ----,
109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). Having now received and considered
the supplemental briefs filed by appellants and the government, we turn to this
issue. Appellants argue that their convictions must be reversed. We disagree

and vote to affirm.

45

The Supreme Court in Gomez addressed the question of "whether presiding at

the selection of a jury in a felony trial without the defendant's consent is among
those 'additional duties' " permitted a magistrate under 28 U.S.C.A. Sec. 636(b)
(3) (West Supp.1989). Gomez, 109 S.Ct. at 2239. Section 636(b)(3), part of the
Federal Magistrates Act, limits the duties that may be assigned a magistrate to
those which the magistrate could execute without being "inconsistent with the
Constitution and laws of the United States." Gomez concluded that Sec. 636(b)
(3) did not grant magistrates authority to preside over voir dire in a criminal
trial. Because "[a]mong those basic fair trial rights that ' "can never be treated
as harmless" ' is a defendant's 'right to an impartial adjudicator, be it judge or
jury,' " the Court concluded that "harmless-error analysis 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." 109 S.Ct. at 2248.

46

Since the Supreme Court's holding there have been a number of circuit court
opinions addressing the issues of (1) whether Gomez established a
jurisdictional bar to magistrates presiding over voir dire, and (2) whether
reversal is mandated where a defendant prior to Gomez either consented or
failed to object to empanelment before a magistrate. In two cases handed down
subsequent to Gomez, we held that Gomez did not create a jurisdictional bar to
a magistrate conducting voir dire, and that reversal is not mandated when a
defendant, prior to that decision, consented or failed to object to empanelment
by a magistrate. See United States v. Vanwort, 887 F.2d 375, 382-83 (2d Cir.)
(failure to object), petition for cert. filed (Dec. 21, 1989); United States v. Mang
Sun Wong, 884 F.2d 1537, 1546 (2d Cir.1989) (explicit consent), cert. denied, -- U.S. ----, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990).

47

Here appellants, who were tried before Gomez was filed, neither consented nor
objected to voir dire by a magistrate. Under Vanwort, there is no question that
we do not find reversal warranted in these circumstances. Appellants contend-and the dissenting opinion concludes--that we may distinguish the instant case
from Vanwort because in this case the jury was selected after our holding in
United States v. Garcia, 848 F.2d 1324, 1332 (2d Cir.1988), rev'd sub nom.
Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989),
which stated that "even absent a defendant's consent [and where a defendant
explicitly objects] the Federal Magistrates Act permits district courts to
delegate the task of jury selection in felony cases to a magistrate." We think the
distinction irrelevant.

48

In making this argument, appellants rely upon United States v. France, 886
F.2d 223 (9th Cir.1989). There, faced with a factual situation identical to that
now before us, the court held that failure to object would not amount to a
waiver because two earlier circuit cases "presented [the defendant] with a 'solid
wall of circuit authority' ... [that] had already decided, erroneously, that
magistrates could conduct voir dire in felony trials. Any objection to the
magistrate performing voir dire ... would, therefore, clearly have been futile."
Id. at 228. France was predicated on two Ninth Circuit en banc opinions
establishing that a defendant was excused from making a contemporaneous
objection when there was a "solid wall of authority" that would have prevented
a district court from upholding the defendant's objection. Id. at 227-28.

49

Significantly, we have not established an exception to the contemporaneous

objection requirement in areas where there is a "solid wall of authority" running
contrary to the defendant's objection. The only authority even suggesting an
analogous principle in this Circuit is a footnote, cited in the dissenting opinion,
in United States v. Indiviglio, 352 F.2d 276 (2d Cir.1965) (en banc ), cert.
denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). The footnote
acknowledges that under plain-error analysis "[a]ppellate courts often notice
error not objected to below when, under the law existing at the time of the trial,
objection would have been futile and when error was asserted on review on the
basis of a subsequent appellate decision." Id. at 280 n. 7. This single line cannot
be said to establish a circuit wall-of-authority exception similar to that relied
upon by the Ninth Circuit.

50

Nor did Garcia itself create authority sufficient to cause defense counsel to
believe any objection to jury empanelment before a magistrate would be futile.
The decision in Garcia was promptly appealed to the Supreme Court and
reversed a year later. In contrast, the Ninth Circuit already had ruled in two
cases decided four years prior to Gomez--certiorari had been denied in both-that magistrates were empowered to conduct voir dire under the Federal
Magistrates Act. See United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert.
denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985); United States v.
Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct.
811, 88 L.Ed.2d 786 (1986). Thus, the posture of the issue in our Circuit is
more akin to that existing in the First Circuit where "[t]here was no binding
rule ... such as necessarily foredoomed an objection to magistrates'
empaneling." United States v. Lopez-Pena, 890 F.2d 490, 497 (1st Cir.1989)
(rehearing en banc filed Dec. 20, 1989).

51

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 Vanwort, 887 F.2d at 382-83; Wong, 884 F.2d at 1544;
Lopez-Pena, 890 F.2d at 498 (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 Sec. 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, 108 S.Ct. 741, 98 L.Ed.2d 776
(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, France
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.
52

We think that the magistrate had subject matter jurisdiction to conduct the voir
dire in this case. Federal courts are courts of limited jurisdiction empowered to
hear only those cases within the judicial power of the United States, as set forth
in Article III of the Constitution, and those over which Congress has conferred
to them a jurisdictional grant. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch)
137, 173-80, 2 L.Ed. 60 (1803). From this principle, it has been a
commandment etched into the edifice of federal jurisprudence for over 150
years that parties cannot confer subject matter jurisdiction on a federal court,
not granted it by the Constitution and Congress, although they may be willing
and even anxious for the court to hear and determine the case. See Jackson v.
Ashton, 33 U.S. (8 Pet.) 148, 149, 8 L.Ed. 898 (1834); cf. American Fire &
Casualty Co. v. Finn, 341 U.S. 6, 17-18 & n. 17, 71 S.Ct. 534, 542 & n. 17, 95
L.Ed. 702 (1951). Thus, when the Supreme Court stated that "[a] critical
limitation on [the magistrate's] jurisdiction is consent," it plainly was not
referring to the subject matter jurisdiction of the district court over a felony
criminal trial. Gomez, 109 S.Ct. at 2244.

53

Instead, we think the "consent" language has reference to waivable matters

under the Federal Rules of Criminal Procedure. Under Fed.R.Crim.P. 12 certain
kinds of motions in a criminal prosecution must be raised before trial or they
are waived. There are five numbered subdivisions of Rule 12(b) listing such
defenses, objections and requests. Lack of subject matter jurisdiction, is not

included among these waivable objections, and may be raised at any time.
Fed.R.Crim.P. 12(b)(2). Subdivision (1) of Rule 12(b) provides for an objection
based on defects in the institution of the prosecution. It is in this category of
objectionable matters that the improper selection of the jury by a magistrate
falls. It is a "fair trial" right to have an Article III judge conduct voir dire of the
jury, see Gomez, 109 S.Ct. at 2248, and for the district court to direct the
magistrate to perform it is a defect in the institution of the prosecution.
54

Unable to square the Supreme Court's use of the word "jurisdiction" with
traditional notions of subject matter jurisdiction, see Gomez, 109 S.Ct. at 224445 (magistrate's present expanded criminal trial jurisdiction depends on
consent), we believe that what Gomez intended was that--absent Congress'
grant of authority in the magistrate to perform jury selection in a felony case-the improper reference to a magistrate is a waivable defect that must be raised
within the time permitted by Fed.R.Crim.P. 12(c) or it is waived under Rule
12(b). Thus, a magistrate's lack of jurisdiction to act absent consent is
analogous to a district court's lack of jurisdiction over the person, which is also
a defense that is waived unless promptly asserted. See United States v. Grote,
632 F.2d 387, 388-89 (5th Cir.1980) (failure to object to personal jurisdiction of
trial court because of faulty arrest warrant waived objection); 1 Wright, Federal
Practice and Procedure: Criminal 2d Sec. 193 (1982) (collecting cases). We
conclude that the defendant's failure to make a contemporaneous objection to
the delegation of jury selection to a magistrate thereby waives the objection.
Like our sister circuits, we do not find empanelment before a magistrate
reversible on appeal as "plain error." See Fed.R.Crim.P. 52(b).

55

In any event, we are constrained by our panel holdings in Vanwort and Wong
to rule that appellants, not having raised objection to the magistrate's selection
of the jury, waived their right to reversal on appeal. Hence, the judgments of
conviction must be affirmed.

56

Judgments affirmed.
LASKER, District Judge, dissenting:

57

Appellants contend in supplemental briefs that their convictions must be

reversed because under Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237,
104 L.Ed.2d 923 (1989) the magistrate who conducted jury selection in their
case had no jurisdiction to preside. Because I agree with appellants' reading of
Gomez, I dissent from the majority on this issue.

58

The Federal Magistrates Act, 28 U.S.C.A. Sec. 636(b)(3) (West Supp.1989)

states that a "magistrate may be assigned such additional duties as are not
inconsistent with the Constitution and laws of the United States." In Gomez a
unanimous court reversed the decision of a divided Second Circuit panel in
United States v. Garcia, 848 F.2d 1324 (2d Cir.1988) and held that jury
selection was not one of "such additional duties" and that, accordingly, "the
Federal Magistrates Act does not allow the delegation of jury selection to
magistrates". 109 S.Ct. at 2246 n. 25. The Court in Gomez also rejected the
Government's contention that the appellants' failure to allege specific prejudice
constituted harmless error. The Court stated that "a defendant's right to have all
critical stages of a criminal trial conducted by a person with jurisdiction to
preside" was a basic fair trial right. 109 S.Ct. at 2248. "Thus harmless-error
analysis 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." Id. The appellants in Gomez had
objected to the magistrate conducting voir dire but were overruled. In the case
at hand the Government argues that the failure of Gambino or Musacchia to
object to jury selection by the magistrate constituted a waiver and renders
Gomez inapplicable, because that decision is limited to instances in which the
appellants object at the time of the magistrate's jury selection.

59

However, I read Gomez not to be limited to cases in which defendants objected,

but rather to extend at least to all cases in which no consent has been given to
jury selection by a magistrate. The Court stated: "The principal question
presented is whether presiding at the selection of a jury in a felony trial without
the defendant's consent is among those 'additional duties' " that can be
delegated to magistrates under the Act. 109 S.Ct. at 2239. Moreover, the Garcia
court (which reached the constitutional issue as well) framed the issue below as
whether the Act or the Constitution "precludes a magistrate from presiding over
jury selection in a felony case without the defendant's consent." 848 F.2d at
1330. In both Garcia and Gomez the fact that appellants made
contemporaneous objections seems incidental; what matters is that they did not
expressly consent.

60

In United States v. Mang Sun Wong, 884 F.2d 1537, 1546 (2d Cir.), cert.
denied, --- U.S. ----, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990) the court denied
a post-Gomez petition for rehearing and affirmed its earlier ruling that reversal
is not required where "there was not only a failure to object, but explicit
consent, to the magistrate's selection of a jury." Wong is distinguishable
because of the absence of express consent in the case at hand.

61

However, the majority and the government rely on United States v. Vanwort,

61

However, the majority and the government rely on United States v. Vanwort,
887 F.2d 375, 382-83 (2d Cir.), petition for cert. filed, No. 89-6313 (Dec. 21,
1989), in which the court relied on Wong and held that where there was no
objection to the magistrate's selection of a jury, reversal was not required. The
Vanwort court did not recognize or analyze the distinction between the facts
before it (failure to object but no express consent) and the facts in Wong
(failure to object but express consent).1 The Wong court focused on express
consent, which was missing in Vanwort, as it is in the case at hand.

62

More importantly however, Vanwort is distinguishable because the jury was

selected in that case before the Second Circuit's decision in Garcia, when the
law in this Circuit was still unsettled. Because jury selection at appellants' trial
occurred after Garcia, objection would have been fruitless in the face of
controlling precedent, and, accordingly, no objection was required to preserve
the issue for review. See United States v. Indiviglio, 352 F.2d 276, 280 n. 7 (2d
Cir.1965) (en banc ) ("Appellate courts often notice error not objected to below
when, under the law existing at the time of the trial, objection would have been
futile and when error was asserted on review on the basis of a subsequent
appellate decision." (citation omitted)), cert. denied, 383 U.S. 907, 86 S.Ct.
887, 15 L.Ed.2d 663 (1966).

63

In United States v. France, 886 F.2d 223 (9th Cir.1989), one of three circuit
court decisions to have analyzed the question presented here, a unanimous
court held that Gomez applied retroactively to all cases pending on direct
review and required reversal even where appellants had not objected to jury
selection by a magistrate. The France court found "absolutely no indication in
the tenor or text of [Gomez ] to suggest that the Court relied on, or did more
than note--in the interest of providing a full and accurate description of the facts
before it--the fact the petitioners had objected to the magistrate's conducting
voir dire." Id. at 227. The France court concluded that any objection to the
magistrate's performing voir dire would have been futile and the appeal was
thus preserved. The court held that a party does not waive its right to challenge
a jury instruction if it fails to object at the time if there is a "solid wall of circuit
authority" which would have barred the district court from correcting the
alleged error. Id. at 227-28 (citing Guam v. Yang, 850 F.2d 507, 512 n. 8 (9th
Cir.1988) (en banc) and United States v. Scott, 425 F.2d 55, 57-58 (9th
Cir.1970) (en banc)). The court stated:

64 seems to us at best unseemly, and at worst irresponsible, to penalize France for

[I]t
following the law as it existed at the time her jury was selected. Finally, it is
incongruous to hold that a rule that is "designed to enhance the accuracy of a
criminal trial," [Solem v. Stumes, 465 U.S. 638, 643, 104 S.Ct. 1338, 1342, 79
L.Ed.2d 579 (1984),] and which must, therefore, be given broad retroactive

application, can be waived because a defendant did not guess that the law would
change some time after the error was committed.
886 F.2d at 228. 2
65

Most significant is the appellants' argument that their mere failure to object,
absent express consent, cannot constitute waiver because the magistrate had no
jurisdiction to preside. Such lack of jurisdiction requires reversal under Gomez.
The Gomez Court stated:

66critical limitation on [the] expanded jurisdiction [of magistrates under 1979

A
Amendments to the Act] 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. Sec.
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), U.S.Code Cong.
& Admin.News 1979, p. 1475, for the magistrate's criminal trial jurisdiction depends
on the defendant's specific, written consent.
67

109 S.Ct. at 2244-45 (footnote omitted); see also United States v. Rubio, 722
F.Supp. 77, 82 n. 3 (D.Del.1989) ("after the Court's decision in Gomez, it
appears that the magistrate may not conduct jury voir dire in a felony trial
under the statute regardless of whether the parties consent").

68

Appellants argue persuasively that the Act's strict and explicit requirements of
consent for referring misdemeanor trials to magistrates mandate that such
consent must also be required to create jurisdiction in a felony case. See United
States v. Marcyes, 557 F.2d 1361, 1368 (9th Cir.1977) (requiring reversal
where Magistrate failed to advise defendant accused of minor offense of right to
jury trial, in violation of 18 U.S.C. Sec. 3401(b) (1988)); Hall v. Sharpe, 812
F.2d 644, 647 (11th Cir.1987) ("[e]xplicit, voluntary consent is crucial [to
provision of Act authorizing magistrates to conduct civil jury trials]"); Lovelace
v. Dall, 820 F.2d 223, 225 (7th Cir.1987) (unless party consents to have a
magistrate enter a final judgment pursuant to 28 U.S.C. Sec. 636(c)(1)(3)
magistrate lacks jurisdiction). Moreover, I find persuasive Judge Altimari's
dissent in Wong, 884 F.2d at 1546: ("In view of the principles expressed in
Gomez, ... a magistrate has no power to seat a jury in a felony case with or
without the defendant's consent.... Jurisdiction to preside at felony trials
remains the province of district judges."). See also Reale Int'l., Inc. v. Fed.
Republic of Nig., 647 F.2d 330, 331 (2d Cir.1981) ("parties cannot confer
jurisdiction on a federal court by consent or stipulation").

69

The Government's response to the jurisdiction argument raised by appellants is

that nothing in Gomez suggests that the district court lacked jurisdiction to try
the case and enter judgment merely because it may have lacked jurisdiction to
refer jury selection to the magistrate. See United States v. Lopez-Pena, 890
F.2d at 495 n. 6 (stating in dicta that magistrate conducting voir dire lacked
statutory authority to exercise jurisdiction but trial court retained subject matter
jurisdiction throughout and describing error as procedural, not jurisdictional).
This argument is unpersuasive in light of the Supreme Court's statement that "a
defendant's right to have all critical stages of a criminal trial conducted by a
person with jurisdiction to preside" is "basic." 109 S.Ct. 2248. Moreover,
Gomez explicitly held that jury selection by a magistrate was not harmless error
"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." Id. Gomez is not limited to cases in which the defendant
objects, but rather to cases in which no consent is given. In sum, under Gomez,
the magistrate who conducted jury selection in this case lacked jurisdiction to
preside and the convictions of Gambino and Musacchia must be reversed
because they did not give express consent to this procedure.

Honorable Morris E. Lasker, United States District Judge for the Southern
District of New York, sitting by designation

In fact, Siegal was never asked about a cooperation agreement

Because Musacchia's counsel attacked DeJonge's credibility in his opening

statement, appellants concede that DeJonge's subsequent testimony about the
truth-telling portions of his cooperation agreement was not error. "If the
opening sufficiently implicates the credibility of a government witness ...
testimonial evidence of bolstering aspects of a cooperation agreement may be
introduced for rehabilitative purposes during direct examination." United States
v. Cosentino, 844 F.2d 30, 33 (2d Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 303,
102 L.Ed.2d 322 (1988)

Although no objection was made when Cuomo was asked about the truthtelling provisions in his agreement, counsel for Musacchia had asked that his
objection to similar questioning of Ribando be deemed continuing

The evidence that Musacchia used the company he formed with Williams as
part of the illegal daisy chain scheme is not based on or affected by Williams'
testimony. Williams merely testified that he helped form CWM, established
certain bank accounts for the business and later helped dissolve the business.
Moreover, Williams testified that he never met or did business with Gambino

Section 6531(4) states in full that a six-year statute of limitations is required

for the offense of willfully failing to pay any tax, or make any return (other
than a return required under authority of part III of subchapter A of chapter 61)
at the time or times required by law or regulations[.]

Section 7203 states in relevant part:

Any person required under this title to pay any estimated tax or tax, or required
by this title ... to make a return, keep any records, or supply any information,
who willfully fails to pay such estimated tax or tax, make such return, keep
such records, or supply such information at the time or times required by law or
regulations, shall, in addition to other penalties provided by law, be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more than
$25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1
year....

The Third Circuit has also equated failure to object with consent in holding that
Gomez does not require reversal in a case in which the appellant failed to
object. Government of the Virgin Islands v. Williams, 892 F.2d 305 (3d
Cir.1989)

In one of three other circuit courts to address this issue, United States v. LopezPena, 890 F.2d 490, 497 (1st Cir.1989) (rehearing en banc filed Dec. 20, 1989)
a divided panel concluded that "[b]ecause the precedential wall in this instance
was rather porous, there was no valid reason for defense counsel to believe that
timely objection to the magistrate's involvement would be futile," and that in
any event even in circuits in which courts had authorized magistrates' jury
selection the courts had not insisted that the practice be followed