JAMES CHRISTOPHER PUGH, PETITIONER V. UNITED STATES OF AMERICA No. 90-6406 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. 1a) is unreported, but the judgment is noted at 914 F.2d 1499 (Table). JURISDICTION The judgment of the court of appeals was entered on August 31, 1990. The petition for a writ of certiorari was filed on November 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner waived his right to a jury trial. STATEMENT Following a bench trial in the United States District Court for the Middle District of Florida, petitioner was convicted of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced under the Sentencing Guidelines to 212 months' imprisonment, to be followed by five years of supervised release. 1. The evidence at trial showed that two police officers stopped petitioner's rental car on May 15, 1989, when they observed the car run a stop sign and drive in excess of the speed limit after leaving a nightclub. Petitioner was driving the car, but he did not have a driver's license. One of the officers saw the butt of a handgun on the passenger-side floor of the car, and he asked the passenger, Jim McCants, to step out. Shortly afterwards, petitioner consented to a search of the car, and he opened the trunk for the officers. Inside the trunk, the officers found a box containing 2,374 grams of crack cocaine and 141 grams of cocaine powder in clear plastic bags. Petitioner was arrested. During the ensuing search, the officers found $453 in cash and a pager on petitioner. Another pager and a portable cellular telephone were subsequently found during an inventory search of the car. In addition, petitioner's fingerprints were later discovered on one of the plastic bags of crack cocaine. Gov't C.A. Br. 3. 2. Petitioner's trial was scheduled to begin on October 2, 1989. That morning, defense counsel informed the district court that petitioner desired, against his counsel's advice, to waive his right to a jury trial: (DEFENSE COUNSEL): (Petitioner has) informed me this morning that he desires to waive a jury trial in this cause and go with a bench trial. It's against my advice, but that's what he wants to do. We're preparing right now a written waiver provided for by the rules. I alerted (the Assistant U.S. Attorney) last week that this possibility is there. See Pet. 2. Based upon that representation, the district court excused the jury venire. After a brief recess, defense counsel read the written waiver into the record: (DEFENSE COUNSEL): (A) waiver of jury trial that's been prepared at (petitioner's) request. I mentioned earlier, meaning obviously no disrespect to the Court, but I felt it was in (petitioner's) interest to go with a jury trial in this case, but he has informed me after speaking to his parents he has decided to waive this. It says the defendant, James Christopher Pugh, having been advised of his right to a jury trial in the above case and that he, through his attorney, could participate in the selection of a jury to try his case and that such jury would have to find by an unanimous decision that he was guilty of the charges in the cause beyond a reasonable doubt hereby waives his right to a trial by jury and requests a bench trial before the court. James, is this what you wish to do? (PETITIONER): Yes, sir. (DEFENSE COUNSEL): You're sure of that? (PETITIONER): Yes, sir. THE COURT: Mr. Pugh, I will be determining the facts. In a jury trial the jury determines the facts and the court determines the law. At a bench trial the facts as presented by the witnesses will be determined by me as well as the law. All right, Sir. I'm ready to proceed. See Pet. 2-3. Shortly thereafter, defense counsel told the district court that petitioner had changed his mind and wanted a jury trial. The district court declined to allow petitioner to withdraw his waiver because the jury venire had already been discharged. Pet. 2-3; Gov't C.A. Br. 1-2. Petitioner was convicted, and the court of appeals affirmed the conviction in an unpublished judgment order. Pet. App. 1a. ARGUMENT Petitioner contends (Pet. 4-9) that his conviction should be vacated because he did not waive his right to a jury trial. The transcript excerpts that petitioner cites, however, establish that he knowingly and intelligently waived his right to a jury trial. His fact-bound contention, in any event, does not warrant this Court's review. Petitioner clearly was entitled to a trial by jury. U.S. Const. Amend. VI. It is equally clear, however, that petitioner could waive his right to a jury trial. Singer v. United States, 380 U.S. 24, 33-34 (1965); Patton v. United States, 281 U.S. 276, 297-298 (1930). As this Court has explained, "(t)he short of the matter is that an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury * * *." Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942). In determining whether a defendant validly waived his right to a jury trial, "it is of course relevant whether he had the advice of counsel." Id. at 277. In this case, defense counsel specifically advised petitioner not to waive his right to a jury trial. Petitioner makes no claim that he did not understand his counsel's advice. Nor does he contend that he did not understand the consequences of waiving his right to a jury trial. Rather, petitioner primarily asserts (Pet. 7-8) that the district court improperly accepted defense counsel's representation, outside petitioner's presence, that petitioner wanted to waive his right to a jury trial. That assertion, however, overlooks the fact that petitioner himself subsequently appeared before the district court and expressly waived his right to a jury trial. Petitioner was present when his counsel read into the record the written waiver, which stated that petitioner had been advised that he had a right to a jury trial, that he could participate in the selection of the jury, and that the jury would have to return a unanimous verdict to find him guilty. Petitioner then affirmed -- twice -- that he wished to waive his right to a trial by jury and that he wanted a bench trial. Thus, contrary to petitioner's contention (Pet. 8), he clearly demonstrated by his own words and actions before the district court that he desired to waive his right to a jury trial. There is no merit in petitioner's claim (Pet. 5-6) that his oral waiver was invalid because he subsequently refused to sign the written waiver as required by Fed. R. Crim. P. 23(a). Rule 23(a)'s requirement of a waiver in writing "is primarily an evidentiary requirement which insures that there is some evidence of the defendant's voluntary consent." United States v. Martin, 704 F.2d 267, 274 n.8 (6th Cir. 1983); see also United States v. Cochran, 770 F.2d 267, 274 n.8 (6th Cir. 1983); see also United States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985) ("Compliance with the requirements of Fed. R. Crim. P. 23(a) creates a presumption that the waiver is a voluntary, knowing and intelligent one."). For that reason, the absence of a written waiver is not fatal if the record reflects that a defendant personally waived his right to a jury trial in open court. See United States v. Saadya, 750 F.2d 1419, 1420 (9th Cir. 1985); United States v. Garrett, 727 F.2d 1003, 1012 (11th Cir. 1984), aff'd, 471 U.S. 773 (1985); United States v. Page, 661 F.2d 1080, 1082-1083 (5th Cir. 1981), cert. denied, 455 U.S. 1018 (1982). In light of petitioner's unequivocal oral statements before the district court that he agreed with the written waiver form prepared by his counsel, his subsequent refusal to sign the form indicates only that he had a change of heart, and not that he failed to waive his right voluntarily, knowingly and intelligently. /1/ Nor is there any merit in petitioner's claim (Pet. 6) that his waiver was invalid because the district court did not personally interrogate him before accepting his oral waiver. To be sure, the Seventh Circuit has adopted a supervisory rule requiring district courts to engage a defendant in a formal inquiry before accepting his waiver of the right to a jury trial. United States v. Delgado, 635 F.2d 889, 890 (1981); United States v. Scott, 583 F.2d 362, 364 (1978). While declining to exercise their supervisory powers to adopt such a rule, a number of other courts of appeals have urged district courts to conduct a colloquy with the defendant to emphasize the seriousness of the decision to waive the right to a jury trial and to create a clear record of the circumstances of the waiver. See United States v. Cochran, 770 F.2d at 852-853; United States v. Martin, 704 F.2d at 274-275; United States v. Anderson, 704 F.2d 117, 118-119 (3d Cir.), cert. denied, 464 U.S. 838 (1983); United States v. David, 511 F.2d 355, 361 & n.13 (D.C. Cir. 1975); United States v. Hunt, 413 F.2d 983, 984 (4th Cir. 1969). The courts of appeals agree, however, that such an oral colloquy is not required by either Rule 23(a) or the Constitution, but is merely the preferred practice. See United States v. Cochran, 770 F.2d at 851; United States v. Martin, 704 F.2d at 274; United States v. Scott, 583 F.2d at 363; United States v. Hunt, 413 F.2d at 984. In this case, defense counsel's interrogation of petitioner in open court with respect to the written waiver form constituted an adequate substitute for a formal inquiry by the district court. /2/ At bottom, petitioner simply contends that the district court should not have excused the jury venire before the recess based on his counsel's representation that he wanted to waive his right to a jury trial. After the recess, however, petitioner twice confirmed in open court that he wanted to waive his right to a jury trial against his counsel's advice. In any event, the timing of the district court's decision to excuse the jury venire has no constitutional significance for the purpose of determining whether petitioner waived his right to a trial by jury. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney MARCH 1991 /1/ Contrary to petitioner's suggestion (Pet. 8), this Court did not rule in Singer v. United States, supra, that a waiver of the right to a jury trial is invalid unless the procedural safeguards of Rule 23(a) are strictly satisfied. Rather, the Court upheld the constitutionality of Rule 23(a)'s provisions conditioning the effectiveness of a defendant's waiver on the consent of the government and the approval of the district court. See 380 U.S. at 24-25, 36. /2/ Petitioner misplaces his reliance on Patton v. United States, supra, for the proposition that the district court had a duty to interrogate him before accepting his waiver. In the passage from Patton relied upon by petitioner (Pet. 4-5, 7), the Court was merely explaining that it "(did) not mean to hold that the waiver must be put into effect in all events" because the trial court has a duty to decide whether to approve a defendant's waiver of his right to a jury trial. 281 U.S. at 312.