IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50848
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER ABUD LOPEZ, also known as Comandante,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
March 6, 2000
Before HIGGINBOTHAM and PARKER, Circuit Judges, and ATLAS,*
District Judge.
HIGGINBOTHAM, Circuit Judge:
This appeal brings questions regarding the authority of a
magistrate judge to preside in a federal prosecution of a felony
after the jury has commenced its deliberations. Javier Abud Lopez
asks us to reverse his conviction, urging that judicial power has
been unconstitutionally delegated, a contention bristling with
difficult issues under Article III of the Constitution.
The government concedes that the record is inadequate for this
appeal because it does not fully disclose the events relevant to
*
District Judge of the Southern District of Texas, sitting by
designation.
the respective roles played by the judge of the district court and
the magistrate judge.
We are persuaded that this case must be remanded to the
district court with instructions to settle the record regarding the
pre-verdict events and the respective roles played by the United
States District Court Judge and the Magistrate Judge. The district
court should first determine what transcripts may yet be obtained
from the electronic recordings and conduct such hearings or other
proceedings as necessary to develop the best record possible to
assist this court in deciding this appeal. The defendant has
served much of his sentence due to the delays entailed by
difficulties in the record. To assist this court in deciding this
case as quickly as possible, the district court should proceed
promptly. The panel retains jurisdiction.
REMANDED for further proceedings.
2