Pool v. United States

Decision Date01 June 1965
Docket NumberNo. 19522.,19522.
Citation344 F.2d 943
PartiesEdward POOL, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Russell E. Parsons, Los Angeles, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Asst. Chief, Crim. Sec., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Sec., Michael P. Balaban, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

BARNES, Circuit Judge:

Appellant commenced his trial before a jury on four counts, two charging the concealment and two charging sale of two amounts of heroin. (21 U.S.C. § 174.) During this jury trial, the parties signed a stipulation of facts, and the case was thereafter tried by the judge. Appellant was found guilty on each count, and sentenced to ten years — five years on each count, counts three and four to run consecutively with one and two, respectively.

Two errors are alleged:

(1) There was no valid waiver of jury as required by Rule 23(a).

(2) The statutory presumption of § 174 created by proof of possession of heroin is unconstitutional.

The discussion in chambers, which led to the stipulation, was outside of the jury's presence; was between, and in the presence of, the judge, and the prosecutor, the defense counsel, and the defendant.

Counsel for defendant said:

"It would be the desire of the defendant at this time to waive his right to trial by jury and to submit the matter on a stipulated set of facts * * *."

Government counsel:

"Your Honor, the Government will not consent to the waiver of the jury until the stipulation is drafted and signed."

Counsel for defendant:

"At which point the waiver will then be effective * * *." (R.T. 97)

Appellant heard this. His counsel said it in his presence. Thereafter both appellant and his counsel signed the stipulation. Appellant's act of placing his own signature on the stipulation of fact under the circumstances here present constituted a written manifestation of his intent to waive his right to a jury trial. It was not on or in the usual form, but the consent was fully evident in writing.

As government counsel states, such an interpretation fulfills not only the spirit of Rule 23(a) in guaranteeing a free and intelligent waiver, but also fulfills the letter of the rule by providing written evidence of that intent. In protecting any defendant's constitutional rights we do, and should, look beyond form to substance. We should do no less in protecting the public's rights.

Appellant does not now and has never urged either that he failed to consent, or that his consent was not freely and intelligently exercised. He urges, at most, a technical non-compliance. This, at most, is harmless error or damnum absque injuria.

The concern of society in creating the rule is to insure a greater probability of a defendant understanding what he is doing, if and when he waives his right to trial by jury, by requiring the waiver to be in writing. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Horne v. United States, 264 F.2d 40 (5th Cir.), cert. den. 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549 (1959).

We hold...

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19 cases
  • State v. Jelks
    • United States
    • Arizona Supreme Court
    • November 19, 1969
    ...'the concern of society * * * to ensure a greater probability of a defendant understanding what he is doing. * * *' Pool v. United States, (9 Cir.) 344 F.2d 943, 945 (1966). Although written waiver is a commendable procedure, and a necessary one when a record of the proceedings is not maint......
  • State v. Crump, 11224
    • United States
    • Connecticut Supreme Court
    • December 2, 1986
    ...greater probability of a defendant understanding what he is doing, if and when he waives his right to trial by jury." Pool v. United States, 344 F.2d 943, 945 (9th Cir.), cert. denied, 382 U.S. 832, 86 S.Ct. 73, 15 L.Ed.2d 76 (1965). The only record of the waiver required by most of the fed......
  • Boulden v. State, No. 49, September Term, 2009 (Md. App. 5/14/2010)
    • United States
    • Court of Special Appeals of Maryland
    • May 14, 2010
    ...held that he was not entitled to a new trial on the basis of an invalid jury trial waiver. Id. at 1114. See also Pool v. United States, 344 F.2d 943, 944 (9th Cir. 1965), where the court held that although the written waiver was not in the form prescribed by rule, it was nonetheless valid. ......
  • Boulden v. State, 49 Sept.Term
    • United States
    • Maryland Court of Appeals
    • May 14, 2010
    ...held that he was not entitled to a new trial on the basis of an invalid jury trial waiver. Id. at 1114. See also Pool v. United States, 344 F.2d 943, 944 (9th Cir.1965), where the court held that although the written waiver was not in the form prescribed by rule, it was nonetheless valid. T......
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