Dranow v. United States

• Decision Date: 17 February 1964
• Docket Number: No. 17319.,17319.
• Citation: 325 F.2d 481
• Parties: Benjamin DRANOW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

325 F.2d 481 (1963)

Benjamin DRANOW, Appellant, v. UNITED STATES of America, Appellee.

No. 17319.

United States Court of Appeals Eighth Circuit.

December 16, 1963.

Certiorari Denied February 17, 1964.

Emanuel Shapiro, St. Louis, Mo., Morris A. Shenker, St. Louis, Mo., and Jacques M. Schiffer, New York City, on the brief, for appellant.

Hartley Nordin, Asst. U. S. Atty., Minneapolis, Minn., Miles W. Lord, U. S. Atty., Minneapolis, Minn., on the brief, for appellee.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

Certiorari Denied February 17, 1964. See 84 S.Ct. 669.

VAN OOSTERHOUT, Circuit Judge.

Defendant Benjamin Dranow was indicted, tried to the court and convicted upon a charge of bail jumping in violation of 18 U.S.C.A. § 3146. He was sentenced to a term of two and one-half years, said sentence to be consecutive to previously imposed sentences upon other charges described in Dranow v. United States, 8 Cir., 307 F.2d 545.

The sole error urged by the defendant in this timely appeal is thus stated:

"The trial court failed to ascertain whether appellant\'s waiver of a jury was voluntary, and accordingly, the jury was not validly waived under Rule 23(a) of the Federal Rules of Criminal Procedure and Article 3, Section 2, Clause 3, and the Sixth Amendment to the Constitution; therefore requiring a new trial."

Unquestionably a criminal defendant is guaranteed the right to a trial by jury by Article III, Section 2, Clause 3 of the Constitution of the United States and the Sixth Amendment to the Constitution. However, it is well-established law that a criminal defendant has a right to waive his constitutional right to a jury trial provided such waiver is voluntarily, knowingly and intelligently made. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854; Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268. With respect to jury waiver, the Court in Patton states:

"Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity." 281 U.S. 276, 312-313, 50 S.Ct. 253, 74 L.Ed. 854.

In Adams the defendant, who had some legal training, refused counsel and without the benefit of counsel waived a jury trial. The Court held: "And whether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case." The Court goes on to say:

"The Patton decision left no room for doubt that a determination of guilt by a court after waiver of jury trial could not be set aside and a new trial ordered except upon a plain showing that such waiver was not freely and intelligently made. If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality. Simply because a result that was insistently invited, namely, a verdict by a court without a jury, disappointed the hopes of the accused, ought not to be sufficient for rejecting it." 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268.

Rule 23(a), Fed.R.Crim.P., provides:

"(a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government."

The defendant, his attorney of his own selection and Mr. Lord, the United States Attorney, on January 2, 1963, in open court before Judge Nordbye, each signed a stipulation waiving jury trial, reading:

"Pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure,

"IT IS HEREBY STIPULATED, between the above parties, by their counsel and by the defendant personally, that the defendant has entered a plea of not guilty to the Indictment herein charging him with a violation of 18 USC 3146; that the defendant fully understands and has been fully advised by his counsel that he has a constitutional right to be tried by a jury, but that with full knowledge of the premises, he waives trial by jury herein and consents and requests that he be tried by any Federal Judge of the District of Minnesota, the Court consenting, when his case may be called for trial by the United States Attorney for the District of Minnesota or any of his Assistants.

"The United States hereby consents to such waiver."

Such stipulation was filed with the court. Judge Nordbye entered an order thereon reading:

"On the foregoing Stipulation,

"IT IS ORDERED, that the defendant herein may be tried on the Indictment herein by any Federal Judge in the District of Minnesota to whom the case is assigned, without jury, in accordance with the foregoing Stipulation, the Court herewith approving said waiver."

Defendant's basic contention in support of a reversal is thus stated in his brief:

"In light of the history of jury trial, it is self evident that a waiver of jury cannot be valid if it is induced by promises or threats, or if the defendant is incompetent. Yet, the record in the instant case shows that the trial court had every reason to believe that defense counsel and government counsel had consummated a `deal\' whereby the government would dismiss a wire fraud charge pending against defendant in return for defendant\'s agreement to waive a jury in the instant case. In view of the fact that all negotiations for the `deal\' took place in front of the trial judge (and apparently were engineered by him) it is appellant\'s position that the trial court committed reversible error in failing to ask even one question of appellant regarding the possibility of his waiver being induced by a promise of the government; especially when it developed later that perhaps appellant was incompetent to waive a jury."

Such contention is wholly without merit. There is no substance to defendant's conclusion that he was incompetent to waive a jury. At a hearing on a motion for continuance on the ground that defendant was mentally incapable to go to trial, testimony of psychiatrists offered by both the Government and the defendant was received. At the conclusion of such hearing, based upon such testimony and the court's observance of the defendant on a number of occasions, the court entered an extensive memorandum opinion, reviewing the testimony, and determining that the defendant was competent to stand trial.

In the final judgment of conviction, the court again reviewed the question of defendant's competency and found him to be competent. Such findings are supported by substantial evidence. No attack is here made upon the rulings upon the motion for continuance or upon the determination of defendant's competency to stand trial.

The real thrust of defendant's argument is that defendant's...