ANIBAL ARROYO-PLAUD, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-6966

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit

   Brief For The United States

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. D1-D6) is
   unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on January 16,
1990.  The petition for a writ of certiorari was filed on March 19,
1990.  This Court's jurisdiction is invoked under 28 U.S.C. 1254(1).

                        QUESTIONS PRESENTED /1/

   1. Whether petitioner's conviction must be reversed because a
magistrate presided over jury selection at his trial even though he
did not object to the magistrate's role.

   2. Whether the evidence supports the jury's verdict.

                               STATEMENT

   After a jury trial in the United States District Court for the
District of Puerto Rico, petitioner was convicted of depriving another
of liberty without due process of law by using excessive force during
an arrest, in violation of 18 U.S.C. 242.  He was sentenced to six
months' imprisonment, to be followed by three years' probation.  He
was also fined $1,000.

   1. The evidence at trial showed that petitioner, an officer in the
Police of Puerto Rico, used excessive force to arrest a suspect.  On
July 10, 1986, petitioner attempted to stop Freddie Diaz's automobile
to cite Diaz for a traffic violation.  Diaz sped away, however, and
petitioner followed him until Diaz turned into a dead-end street where
petitioner caught up with him.  When petitioner told Diaz that he was
under arrest, Diaz replied that he would not accompany petitioner
unless there was another police officer present.  Without any further
provocation, petitioner used his nightstick to beat Diaz on his side,
back, and head.  Pet. App. D2-D3.

   At petitioner's trial, a magistrate presided over jury selection.
Petitioner did not object to the magistrate's role in jury selection.
When trial commenced before the district court, the court asked
whether the parties had "any objection whatsoever to the procedure
used by the magistrate." Pet. App. D2.  Petitioner stated that he had
no objection.  Ibid.

   2. On appeal, petitioner argued that his conviction should be
reversed on the basis of this Court's decision in Gomez v. United
States, 109 S. Ct. 2237 (1989), which held that the Federal
Magistrates Act does not authorize district courts to delegate jury
selection to magistrates in criminal trials without the defendant's
consent.  The court of appeals rejected that contention.  Relying on
United States v. Lopez-Pena, 890 F.2d 490 (1st Cir. 1989), withdrawn
and pet. for reh. granted (Feb. 9, 1990), the court held that
petitioner waived his right to object to the assignment of jury
selection to a magistrate.  Pet. App. D5-D6.  The court also concluded
(Pet. App. D3-D5) that the evidence was sufficient to show that
petitioner used excessive force in arresting Diaz.  Specifically, the
court noted that five eyewitnesses testified that petitioner
repeatedly beat Diaz with the nightstick.  From that evidence, the
court found that the jury could conclude that petitioner used more
force than was reasonably necessary to subdue an unarmed man during an
arrest for a traffic offense.

                               ARGUMENT

   1. Petitioner renews his contention (Pet. 2-5) that this Court's
decision in Gomez requires reversal of his conviction.  /2/ He also
claims (Pet. 4) that an objection to the magistrate's presiding over
jury selection would have been futile.

   On April 23, 1990, this Court granted the government's petition for
a writ of certiorari to review the Ninth Circuit's decision in United
States v. France, No. 89-1363.  That case presents the question
whether a defendant's failure to object to the magistrate's
supervision of jury selection may be excused on the ground that an
objection would have been futile in light of prior Ninth Circuit
decisions approving the delegation of jury selection to magistrates.

   In this case, the court of appeals relied on its prior decision in
United States v. Lopez-Pena, supra, to reject petitioner's Gomez
claim.  /3/ In Lopez-Pena, the court held that a defendant who failed
to object to the delegation of jury selection to a magistrate had
waived any claim based on Gomez.  The court in Lopez-Pena specifically
rejected the contention that an objection to the delegation of jury
selection would have been futile in light of prior First Circuit
precedent.  The court noted that prior First Circuit cases had held
only that it was not plain error for a magistrate to preside over jury
selection.  See, e.g., United States v. Rivera-Sola, 713 F.2d 866 (1st
Cir. 1983).  The First Circuit had never held that the Magistrates Act
authorized district courts to delegate jury selection to magistrates,
and thus nothing in its prior decisions rendered an objection to that
practice futile.

   Nevertheless, both France and this case address the scope and
effect of this Court's decision in Gomez.  Thus, this Court's
disposition of France may bear on the issues raised by this petition.
For that reason, the Court may wish to hold this petition pending the
decision in France.

   2. Petitioner's remaining contention (Pet. 5-7) -- that the
evidence was insufficient to show that petitioner used excessive force
to arrest Diaz -- is without merit.  As the court of appeals noted,
five eyewitnesses testified that petitioner repeatedly beat Diaz with
a nightstick.  Moreover, each of the witnesses rebutted petitioner's
claim that Diaz had a knife.  Although petitioner points out that the
testimony of the witnesses contained some inconsistencies, it is up to
the jury "to determine the credibility of witnesses." Glasser v.
United States, 315 U.S. 60, 80 (1942).

                              CONCLUSION

   To the extent the petition challenges the magistrate's supervision
of jury selection at petitioner's trial, it should be held and
disposed of in light of the decision in United States v. France, No.
89-1363.  In all other respects, it should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S. G. DENNIS, JR.

      Assistant Attorney General

   J. DOUGLAS WILSON

      Attorney

   MAY 1990

   /1/ Although the petition does not identify the questions
petitioner wishes this Court to review, the Argument section of the
petition discusses the issues we have identified.

   /2/ Petitioner argues (Pet. 2-3) that Gomez should apply
retroactively to cases pending on direct appeal.  The United States
agrees with that point.

   /3/ The First Circuit has granted rehearing en banc in Lopez-Pena.
Nevertheless, the panel opinion in Lopez-Pena was used to justify the
decision in this case.  Thus, we will use that panel opinion to
explain the rationale of the decision below.