FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-35021

Plaintiff-Appellee, D.C. Nos.

v.  CV-04-00162-DWM

JUSTIN METUCHEN GAMBA,

CR-01-00068-DWM

Defendant-Appellant. OPINION 

On Remand from the United States Supreme Court

Filed August 28, 2008

Before: Alfred T. Goodwin, Raymond C. Fisher, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

11893
COUNSEL

Daniel R. Wilson, Measure, Robbin & Wilson, P.C., Kalispell, Montana, for the defendant-appellant. 

Joshua S. Van de Wetering, Assistant United States Attorney,

Missoula, Montana, for the plaintiff-appellee. 

OPINION

MILAN D. SMITH, JR., Circuit Judge: 

Justin Metuchen Gamba was convicted and sentenced for

witness tampering in violation of 18 U.S.C. § 1512(b). Gamba

appeals the district court’s denial of his petition for relief filed

under 28 U.S.C. § 2255. Specifically, Gamba argues that the

district court erred in denying his § 2255 motion because it

did not find Gamba’s appellate counsel ineffective when he

failed to challenge on appeal the magistrate judge’s jurisdiction to preside over closing argument without Gamba’s personal consent. We affirm because the magistrate judge had

proper jurisdiction over closing argument at Gamba’s trial.

Defense counsel may waive a defendant’s right to have an

Article III judge conduct closing argument without the defen11896 UNITED STATES v. GAMBA
dant’s express, personal consent where the decision is one of

trial tactics or strategy. 

FACTS AND PROCEDURAL HISTORY

Gamba was charged with two counts of making false statements in violation of 18 U.S.C. § 1001, two counts of witness

tampering in violation of 18 U.S.C. § 1812(b), and one count

of being an accessory after the fact in violation of 18 U.S.C.

§ 3. All of Gamba’s charges arose from his attempts to foil

the prosecution of his girlfriend on drug and gun charges. He

pleaded not guilty to all charges and the case was set for jury

trial. Gamba retained attorney Ed Sheehy to represent him at

trial. 

Gamba’s trial lasted one day. After testimony concluded,

Sheehy, without Gamba being present, and the Assistant

United States Attorney, Joshua Van de Wetering, convened in

the district court judge’s chambers to finalize jury instructions. After the instructions were finalized, Chief District

Judge Molloy informed the parties that he had to pick his wife

up from the hospital and suggested that the trial reconvene

after he returned. The relevant portion of the trial transcript

reads as follows:

THE COURT: Let me tell you what the problem

is that I’ve got. I’ve got to pick my

wife up at the hospital at 2:30 and

run her home and then come back

here. So what I’d like to do, if at

all possible—and—shoot, it will

be—2:30, make sure you’re here

at 2:30, because that’s when it will

be. And it just may delay me a little bit. Do you have any objection? 

UNITED STATES v. GAMBA 11897
One thing that I could do is have

Judge Erickson sit in on the argument and submit the case to the

jury. I mean, I can instruct the

jury, but then he would just preside and give it to the jury. 

MR. SHEEHY: Yeah, I have no objection to that.

THE COURT: I’ll leave it up to you guys and I

won’t force you, I just have to —

MR. SHEEHY: I understand. 

THE COURT: If they did things the way I try and

run things, I could go over, pick

her up and be back in half hour. 

MR. SHEEHY: I understand what you’re talking

about; I have no problem doing

that. 

MR.VAN de WETERING:

I think that’s a great idea. 

(Whereupon, the Court picked up the phone and had telephone conversation with Magistrate Judge Erickson’s assistant.) 

THE COURT: So is that all right with you guys?

MR SHEEHY: Yeah. 

THE COURT: Is that all right with the defendant?

MR. SHEEHY: Yeah, he won’t care. 

THE COURT: So here’s what we’re going to do

. . . . I’ll go in, instruct the jury,

11898 UNITED STATES v. GAMBA
you get on your opening, you on

yours and, hopefully, we can get it

done. But if we’re running out of

time at 2:30, I’ll take a break and

then ask Judge Erickson to come

in and just sit there for the balance

of the argument and submit the

instructions and Mary will swear

in the bailiff and then send them

off. 

Shortly thereafter, the trial reconvened in the courtroom

with Gamba and the jury present. Judge Molloy addressed the

jury:

THE COURT: I am going to have to leave at 2:30

because my wife had a medical

procedure and I have to pick her

up. So Judge Erickson, who is the

magistrate judge, will come in and

preside over the arguments of

counsel in this case. They’ll start

while I’m here, but we may take a

real short break so that I can step

off and he can come in. The parties have consented to that. 

(Emphasis added). Neither Gamba nor his counsel raised any

objection to Judge’s Molloy’s announcement. 

Judge Molloy exited the courtroom after instructing the

jury and after counsel for the government had begun his closing argument. Magistrate Judge Erickson took the bench. Neither Gamba nor his counsel objected to the presence of

Magistrate Judge Erickson, who made no comments or rulings during the time he presided over the closing arguments.

At the conclusion of closing argument, Magistrate Judge

Erickson submitted the case to the jury. The jury found

UNITED STATES v. GAMBA 11899
Gamba guilty of witness tampering in violation of 18 U.S.C.

§ 1812(b) and Gamba was later sentenced to thirty-three

months imprisonment. Gamba did not object to the magistrate

judge’s presiding over closing argument after the jury handed

down its verdict or when he was sentenced by the district

court. 

Gamba’s petition for relief under 28 U.S.C. § 2255 comes

after this court denied his first appeal for insufficiency of evidence. See United States v. Gamba, 76 F. App’x 209 (9th Cir.

2003). The district court denied Gamba’s § 2255 motion on

the grounds that Gamba’s counsel did not render ineffective

counsel by consenting to the magistrate judge presiding over

closing argument or by failing to raise the magistrate judge

consent issue on appeal, but granted Gamba a certificate of

appealability on the magistrate jurisdiction issue pursuant to

28 U.S.C. § 2253(c). 

On April 11, 2007, we affirmed the district court’s holding

that the magistrate judge had proper jurisdiction over closing

arguments. United States v. Gamba, 483 F.3d 942 (2007). The

Supreme Court vacated our decision and remanded for further

consideration in light of Gonzalez v. United States, 128 S. Ct.

1765 (2008). See Gamba v. United States, 128 S. Ct. 2472

(2008) (mem.). At our request, the parties submitted supplemental briefing on the effect of Gonzalez on this case. The

parties did not raise any questions of fact, and both parties

agree that Gonzalez supports the district court’s decision. We

now reconsider this case in light of Gonzalez.

JURISDICTION

We have jurisdiction pursuant to 28 U.S.C. §§ 2253 and

2255. 

STANDARD OF REVIEW

Whether the district court’s delegation of authority to a

magistrate judge to preside over closing argument is proper

11900 UNITED STATES v. GAMBA
under the Federal Magistrates Act is a question of law subject

to de novo review. United States v. Colacurcio, 84 F.3d 326,

328 (9th Cir. 1996). The district court’s denial of a 28 U.S.C.

§ 2255 motion is also subject to de novo review. United States

v. Ware, 416 F.3d 1118, 1120 (9th Cir. 2005).

DISCUSSION

We address the issue of whether a district court judge may

lawfully appoint a magistrate judge to preside over closing

argument at a felony criminal trial if the defendant’s counsel

has, for trial tactic or legal strategy purposes and without the

defendant’s express, personal consent, agreed to such appointment.1

[1] “The Federal Magistrates Act, 28 U.S.C. §§ 631-39,

governs the jurisdiction and authority of federal magistrates.”

United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir.

2003) (en banc). The Act allows the district court to assign

magistrate judges certain enumerated duties, as well as any

“additional duties as are not inconsistent with the Constitution

and laws of the United States.” 28 U.S.C. § 636(b)(3). 

The Supreme Court initially examined the scope of the “additional duties” provision of the Act in Gomez v. United

States, 490 U.S. 858 (1989), in the context of whether a magistrate judge had jurisdiction to preside over voir dire in a felony trial. In Gomez, the Court determined the magistrate

judge had exceeded his jurisdiction by conducting voir dire in

1While we have examined issues involving consent and magistrate jurisdiction, we have never specifically addressed the question posed in this

appeal. See United States v. Reyna-Tapia, 328 F.3d 1114, 1119 (9th Cir.

2003) (en banc) (holding a magistrate judge may conduct plea colloquies

pursuant to Federal Rule of Criminal Procedure 11 if defendant consents);

United States v. Sanchez-Sanchez, 333 F.3d 1065, 1067 (9th Cir. 2003)

(finding the magistrate judge lacked authority to conduct a revocation proceeding because neither defendant nor his counsel consented to allowing

the magistrate judge to preside). 

UNITED STATES v. GAMBA 11901
a felony trial over the defendant’s objection. Id. at 876.

Because the Court found no reference to jury selection in the

Federal Magistrates Act or its legislative history, it determined Congress did not intend to include jury selection within

the § 636(b)(3) “additional duties” provision. Id. at 871-76. 

Two years later, faced with a conflict among the circuits in

interpreting Gomez and applying the § 636(b)(3) catch-all

“additional duties” provision, the Court decided Peretz v.

United States, 501 U.S. 923 (1991). In Peretz, the petitioner

and his counsel attended a pretrial conference, at which the

district judge asked if there was any objection to a magistrate

judge picking the jury and conducting voir dire. Id. at 925.

The petitioner’s counsel stated, “I would love the opportunity,” and before jury selection, counsel for the petitioner and

his codefendant assured the magistrate judge that the magistrate judge had their clients’ consent to proceed. Id. The Court

held that the delegation was proper, and stated that the rationale of Gomez “does not apply when the defendant has not

objected to the magistrate’s conduct of the voir dire.” Id. at

933 (collecting cases) (emphasis added). The Court further

noted that the holding in Gomez was “carefully limited to the

situation in which the parties had not acquiesced at trial to the

magistrate’s role” and commented that courts had “uniformly

rejected challenges to a magistrate’s authority to conduct the

voir dire when no objection to his performance of the duty

had been raised in the trial court.” Id. at 927-28. 

After extolling the now essential role played by magistrate

judges in helping district court judges handle their “bloated

dockets,” id. at 928 (internal quotation marks omitted), and

concluding that with the defendant’s consent the constitutional analysis is successfully negotiated, it noted:

The generality of the category of “additional duties”

indicates that Congress intended to give federal

judges significant leeway to experiment with possible improvements in the efficiency of the judicial

11902 UNITED STATES v. GAMBA
process that had not already been tried or even foreseen. If Congress had intended strictly to limit these

additional duties to functions considered in the committee hearings or debates, presumably it would have

included in the statute a bill of particulars rather than

a broad residuary clause. Construing this residuary

clause absent concerns about raising a constitutional

issue or depriving a defendant of an important right,

we should not foreclose constructive experiments

that are acceptable to all participants in the trial process and are consistent with the basic purposes of the

statute. 

Id. at 932-33. 

The Court also considered that no structural protections

provided by Article III were implicated by the procedure followed in the case because “[t]he ultimate decision whether to

invoke the magistrate’s assistance is made by the district

court, subject to veto by the parties.” Id. at 937 (internal quotation marks omitted). Furthermore, “[b]ecause the entire process takes place under the district court’s total control and

jurisdiction, there is no danger that use of the magistrate

involves a congressional attemp[t] to transfer jurisdiction [to

non-Article III tribunals] for the purpose of emasculating constitutional courts.” Id. (internal citations and quotation marks

omitted) (alterations in original). Finally, the Court held “that

permitting a magistrate to conduct the voir dire in a felony

trial when the defendant raises no objection is entirely faithful

to the congressional purpose in enacting and amending the

Federal Magistrates Act.” Id. at 940. 

[2] In Gonzalez, the Supreme Court reaffirmed Peretz and

held that counsel may consent to a magistrate judge presiding

over voir dire under § 636(b)(3) without the client’s express

consent. 128 S. Ct. at 1772. The Court held that “[t]aken

together, Gomez and Peretz mean that ‘the additional duties’

the statute permits the magistrate judge to undertake include

UNITED STATES v. GAMBA 11903
presiding at voir dire and jury selection provided there is consent but not if there is an objection.” Id. at 1768. The Court

further explained that counsel could consent without his client’s knowledge or approval because the choice of a magistrate judge over a district court judge at the jury selection

phase was a “tactical decision that is well suited for the attorney’s own decision.” Id. at 1770. 

[3] This court applies a two-pronged test to determine

whether a duty, not specified in the Act, may be delegated to

a magistrate judge under the catch-all “additional duty” provision, § 636(b)(3). Reyna-Tapia, 328 F.3d at 1119. Under this

test, whether a duty designated to a magistrate judge falls

under § 636(b)(3), “depends, first and foremost, on whether

the parties have consented, and secondly, on whether the

additional duties bear some relation to the specified duties

that magistrate judges can perform.” Id. (citation and internal

quotation marks omitted). Gonzalez sheds light on the “consent” prong of this test. Thus, with Gonzalez in mind, we

apply this two-pronged test below to determine whether it was

proper for the magistrate judge in this case to preside over

closing arguments.

A. Consent

[4] The central issue before this panel is the degree to

which a defendant himself must be involved in the decision

to allow a magistrate judge to preside over closing argument.

We hold that Sheehy’s decision to consent to Magistrate

Judge Erickson presiding over closing arguments without

Gamba’s express, personal consent, was lawful because Sheehy’s decision was made for tactical and strategic reasons.

Gonzalez confirmed that defense counsel may waive certain rights of the accused as part of the trial strategy or tactics

without obtaining the accused’s express, personal consent.

See 128 S. Ct. at 1770. Gonzalez held that it was a “tactical

decision” for the defendant’s counsel to allow a magistrate

11904 UNITED STATES v. GAMBA
judge to oversee voir dire. Id. The Court held that such a tactical decision did not require the defendant’s consent, explaining: “The adversary process could not function effectively if

every tactical decision required client approval.” Id. (quoting

Taylor v. Illinois, 484 U.S. 400, 418 (1988)). In essence,

“[g]iving the attorney control of trial management matters is

a practical necessity.” Id. 

[5] Similarly, we have previously held that defense counsel

may waive an accused’s constitutional rights as a part of trial

strategy. In Wilson v. Gray, 345 F.2d 282, 286 (9th Cir.

1965), cert. denied, 383 U.S. 919 (1965), for example, we

determined that counsel may waive the accused’s Sixth

Amendment right to cross-examination and confrontation as

a matter of trial tactics or strategy. There, defense counsel

stipulated that a matter could be heard on the transcript of the

preliminary hearing, though each side retained the right to

produce additional evidence at trial. Id. at 287. We found that

this decision was “deliberately made as a matter of trial tactics

and strategy” because the accused was charged with assault

with a deadly weapon, and the transcript of the witness testimony was “far more innocuous than the appearance of that

witness before the state judge could ever have been.” Id. at

287-88 & n.8. We concluded that in this instance the defendant’s “right to cross examine and confront prosecution witnesses was effectively waived by his counsel.” Id. at 288; see

also United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999)

(“We therefore join the majority of circuit courts of appeals

and hold that defense counsel may waive a defendant’s Sixth

Amendment right to confrontation where the decision is one

of trial tactics or strategy that might be considered sound.”).

[6] Just as defense counsel made a tactical decision in Wilson and in Gonzalez, Sheehy’s decision to consent to Magistrate Judge Erickson presiding over Gamba’s closing

argument (to which Gamba made no objection when the

agreement was announced in open court) was also a strategic,

UNITED STATES v. GAMBA 11905
tactical decision.2

 As Sheehy explained in a letter to Gamba,

“if we had objected to Judge Erickson coming in and listening

to the closing arguments, rather than Judge Molloy, Judge

Molloy would have simply delayed the closing argument and

I did not see the merit in doing that.” Based on the record

before this court, it appears that Sheehy understood the

nuances of the case, observed the jury, and made a tactical

decision that a continuance would disadvantage his client. 

[7] The decision that counsel made here, to consent to a

magistrate judge presiding over closing arguments that would

otherwise have been delayed, is precisely the type of decision

that counsel is retained to provide. See Gideon v. Wainwright,

372 U.S. 335, 345 (1963) (emphasizing the importance of the

knowledge and skill counsel brings to bear when representing

a defendant in a criminal trial). After all, few defendants have

the training to permit them to appreciate the various legal concerns at issue when a magistrate judge is delegated authority

to preside over closing argument. An attorney understands the

importance of consistency in a trial proceeding, therefore, he

is best equipped to make an immediate determination as to the

risks or benefits of accepting a magistrate judge as a substitute

for a district court judge. 

[8] We recognize, however, that certain fundamental rights

cannot be waived by a client’s counsel alone. The Supreme

Court in Florida v. Nixon, 543 U.S. 175 (2004), explained

that:

[C]ertain decisions regarding the exercise or waiver

of basic trial rights are of such moment that they

2

In Peretz, the Court also found that “a defendant has no constitutional

right to have an Article III judge preside at jury selection if the defendant

has raised no objection to the judge’s absence.” Peretz, 501 U.S. at 936.

Therefore, even if Gamba’s counsel had not consented to Magistrate Judge

Erickson’s supervision of closing argument, any failure to object to Judge

Molloy’s absence may have been deemed a waiver of Gamba’s right to an

Article III judge at a critical stage of his felony criminal proceeding. 

11906 UNITED STATES v. GAMBA
cannot be made for the defendant by a surrogate. A

defendant, this Court affirmed, has the ultimate

authority to determine whether to plead guilty, waive

a jury, testify in his or her own behalf, or take an

appeal. Concerning those decisions, an attorney must

both consult the defendant and obtain consent to the

recommended course of action. 

Id. at 187 (internal citations and quotation marks omitted).

Gonzalez reaffirmed Nixon’s distinction between certain fundamental rights and those rights that are “tactical” and do not

require the defendant’s express, personal consent. 128 S. Ct.

at 1770-71. Although the Court in Nixon did not provide an

exhaustive list of “basic trial rights,” the Court did not list the

right to an Article III judge presiding over closing argument

as one of those rights, and it cannot reasonably be said that

such a “right”—if there is one at all—rises to the level of such

basic and fundamental rights as deciding whether to plead

guilty or appeal one’s conviction, particularly in light of Peretz and Gonzalez. Thus, Gamba’s consent was not necessary

for Sheehy to agree to Magistrate Judge Erickson presiding

over closing argument. 

[9] We recognize, as the Court suggests in Gonzalez, that

after proceedings have commenced, the introduction of a

magistrate judge into some aspect of the trial’s proceedings

may give rise to substantive difficulties that would not similarly arise during voir dire. 128 S. Ct. at 1771 (“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.”). No such substantive difficulties arose in

this case. The magistrate judge made no comments or rulings

during the time he presided over the closing arguments. And,

although jury instructions may come after closing arguments,

Fed. R. Crim. P. 30(c), the district judge made a point to

instruct the jury before leaving. In fact, it appears that the

UNITED STATES v. GAMBA 11907
magistrate judge in Gonzalez played a more active role in the

portion of the proceedings he presided over than the magistrate judge in this case. 128 S. Ct. at 1770 (“[T]he 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.”). 

B. Additional Duties

In addition to finding the required consent, we must determine whether closing argument “bear[s] some relation to the

specified duties” that magistrate judges are already authorized

to perform. Peretz, 501 U.S. at 930 (internal quotation marks

omitted). We hold that it does. 

[10] In Peretz, the Court found that the Act’s “additional

duties clause permits a magistrate to supervise jury selection

in a felony trial provided the parties consent.” Id. at 933

(internal quotation marks omitted). The Court reasoned that

the responsibility and importance of presiding over voir dire

at a felony trial are comparable to the duties and responsibility

that magistrate judges have in supervising entire civil and

misdemeanor trials. See id.; see also 28 U.S.C. § 636(a) (with

the parties’ consent, a district court judge may delegate the

supervision of entire civil and misdemeanor trials to a magistrate judge). The Peretz Court, as noted above, also encouraged the district courts to experiment in the use of magistrates

to carry out functions not previously considered so long as the

parties consent or the defendant fails to object. See 501 U.S.

at 932-33. 

[11] The reasoning the Court applied in Peretz equally

extends to closing argument. If a magistrate judge can conduct jury selection, then, logically, he can preside over closing

argument as well. A magistrate judge who conducts a civil or

misdemeanor trial necessarily must preside over closing argument. Closing argument clearly bears a relation to specified

duties magistrate judges are statutorily authorized to perform.

11908 UNITED STATES v. GAMBA
Accordingly, where defense counsel consents to proceed

before a magistrate judge for tactical or strategic reasons,

there is neither a constitutional nor a statutory impediment to

delegating closing argument in criminal cases to magistrate

judges. See Reyna-Tapia, 328 F.3d at 1121. 

C. Ineffective Assistance of Counsel

[12] Since we hold that the magistrate judge had jurisdiction in this case because of defense counsel’s consent due to

trial strategy or tactics and the close relationship between presiding over closing argument and a magistrate judge’s statutorily specified duties, Sheehy’s conduct was not objectively

unreasonable and Gamba cannot make the necessary showing

of prejudice to show ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). 

CONCLUSION

We affirm the district court’s denial of Gamba’s 28 U.S.C.

§ 2255 motion. Where the decision is one of trial tactics or

legal strategy, defense counsel may waive the defendant’s

right to have an Article III judge preside over closing argument without the defendant’s express, personal consent. 

AFFIRMED. 

UNITED STATES v. GAMBA 11909