avoidance requires clear evidence that “Congress actually intended to permit magistrates to take on a role that raise[s] a substantial constitutional question.” Id. at 930, 111 S.Ct. at 2666. However, when the defendant consents to proceed before a magistrate judge, the constitutional analysis changes significantly because no constitutional right is implicated if the defendant does not object to the absence of an Article III judge. Id. at 936, 111 S.Ct. at 2669. The Supreme Court considered the “additional duties” clause in the criminal context in Peretz, 501 U.S. 923, 111 S.Ct. at 2662, and held that, with a defendant’s consent, a magistrate judge may preside over jury selection in a felony case. Contrasting Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (<HOLDING>), the Court stressed that the defendant’s
holding that a magistrate lacks authority to preside over jury selection in a felony case if the defendant objects holding over holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony as essential element of the felony murder offense recognizing that a party that objects to a jury instruction before the jury retires may challenge the instruction on appeal holding that there is both a statutory and a constitutional right to a jury trial under erisa because congress lacks constitutional authority to limit right to a jury