U.S. v. Robertson

Decision Date23 January 1995
Docket Number93-1300 and 93-1301,Nos. 93-1292,93-1294,s. 93-1292
Citation45 F.3d 1423
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Steven ROBERTSON, a/k/a Steven Davis, a/k/a Whitey, a/k/a Johnny Lee, a/k/a Mohammed, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edward GRAVES, a/k/a Poncho, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Glenda WALKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony Carlos TORRES, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

John M. Hutchins, Asst. U.S. Atty. (Henry L. Solano and Craig F. Wallace, U.S. Attys., with him on the briefs), Denver, CO, for plaintiff-appellee.

David C. Japha, Denver, CO, for plaintiff-appellant in No. 93-1292.

Stephen M. Wheeler of Wheeler Law Offices, PC, Evergreen, CO, for plaintiff-appellant in No. 93-1294.

Daniel C. Hale of Miller, Hale & Harrison, LLC, Boulder, CO, for plaintiff-appellant in No. 93-1300.

Raymond P. Moore, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, and Jenine Jensen, Asst. Federal Public Defender, on the brief), Denver, CO, for plaintiff-appellant in No. 93-1301.

Before BRORBY, Circuit Judge, LAY, * Senior Circuit Judge, and McWILLIAMS, Circuit Judge.

BRORBY, Circuit Judge.

The defendants, Steven Robertson, Edward Graves, Glenda Walker, and Anthony Torres, bring these separate appeals alleging numerous errors concerning their convictions and sentences. Because these appeals arise out of a common criminal enterprise and many of the issues presented by the individual defendants relate to identical facts and rulings of the district court, we address them in a single opinion. We have jurisdiction under 28 U.S.C. Sec. 1291, and for the reasons set forth below, affirm in part, reverse in part, and remand in part.

I. BACKGROUND

Steven Robertson, Glenda Walker, and Anthony Torres were initially charged with conspiracy to distribute more than fifty grams of cocaine base ("crack cocaine") and distribution of more than five grams of crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A)(iii) and (b)(1)(B)(iii), 21 U.S.C. Sec. 846, and 18 U.S.C. Sec. 2. 1 Subsequently, a superseding indictment was filed containing twenty additional counts. In addition to the original charges, Mr. Robertson was charged with possession with intent to distribute more than 500 grams of powder cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 846. The remaining counts charged various defendants with money laundering in violation of 18 U.S.C. Sec. 1956(a)(1)(A)(i) and (B)(i). A second superseding indictment was filed charging Edward Graves with participation in the conspiracy. This indictment also added two counts against Ms. Walker for possession of firearms by a convicted felon. These two counts were severed prior to trial.

Shortly before trial, Messrs. Robertson, Graves and Torres sought to enter guilty pleas which they had entered into with the government. The district court refused to accept these agreements concluding none of the three defendants had complied with "local rules" concerning plea agreements and stating that no Rule 11(e)(1)(C) plea agreements would be accepted in the case. The court concluded: "If you want to plead to the indictment and take your chances, then that'll be something that I'll take a look at. Otherwise, this case is going to trial next Monday." Only Mr. Torres pled guilty to the indictment against him. 2

Mr. Robertson was convicted by a jury of eight counts and acquitted of one. 3 Mr. Graves was convicted by a jury of the single The underlying facts are as follows. 6 The government presented numerous witnesses at trial who testified as to their extensive observations concerning the drug operation and the individual defendants' involvement in it. Most of them were admitted users of crack cocaine who gained their information as a result of purchasing drugs from, selling drugs for, and socializing with the defendants.

                count against him. 4  Ms. Walker, in a concurrent trial to the court, was convicted of three counts. 5
                

The testimony at trial indicated Mr. Robertson and Mr. Graves operated an extensive crack cocaine operation in the Metro-Denver area. Mr. Robertson was characterized as the "ring-leader" of the operation who procured drugs, handled the money, and gave orders concerning how the conspiracy would be run. Mr. Graves was portrayed as the "second in command" who worked closely with Mr. Robertson and primarily was responsible for distributing crack cocaine to various locations in Denver where the conspiracy operated and who also sold small quantities of crack cocaine directly to users. Mr. Torres, while a part of the conspiracy, appeared on the scene only intermittently.

Crack cocaine was distributed to and sold from a number of houses, apartments, and motel rooms. Ms. Walker, the common law wife or companion of Mr. Graves, was portrayed as a relatively minor player in the conspiracy who appeared frequently at the "sale" locations, the "safe houses" where drugs and money were kept, and occasionally sold small quantities of crack cocaine. In addition, she sometimes paid the rent for locations used in furtherance of the enterprise.

Dwight Sherman was a frequent user of crack cocaine. He bought it from, smoked it with, and sold it for Mr. Graves. Following his arrest for involvement in a crack cocaine sale, Mr. Sherman began cooperating with law enforcement. He informed Detective Demmel of the Denver Police Department that Mr. Graves would be receiving a package of cocaine in the mail at one of two locations in Denver. Based on this information, agents of the Drug Enforcement Administration intercepted the package and obtained a search warrant for it. The package contained approximately 872 grams of 88 percent pure cocaine. A controlled delivery of the package was made the following day. Bryan Kuykendall was arrested at the time of this controlled delivery.

II. JURY WAIVER

Ms. Walker argues the district court erred in allowing the case against her to proceed as a non-jury trial. Ms. Walker's counsel filed a motion waiving her right to trial by jury. The motion, however, was not signed by Ms. Walker, although it did note her agreement to waive. Because the "waiver" of her right to trial by jury was invalid, Ms. Walker urges her conviction be vacated. We agree. 7

We review the district court's findings of historical fact for clear error; however, the question of whether there has been a denial of the right to a jury trial is reviewed de novo. See Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc) ("ultimate question of voluntariness [to a stipulated-facts trial] is reviewed de novo"), cert. denied, --- U.S. ----, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993); cf. United States v. Burson, 952 F.2d 1196, 1199 (10th Cir.1991) (reviewing voluntariness of a waiver of the right to counsel de novo ), cert. denied, --- U.S.

----, 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992); United States v. Williams, 919 F.2d 1451, 1455 (9th Cir.1990) ("Whether a [guilty] plea is voluntary is a question of federal law subject to de novo review"), cert. denied, 499 U.S. 968, 111 S.Ct. 1604, 113 L.Ed.2d 667 (1991).

A criminal defendant's right to a trial by jury is a fundamental right. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447-48, 20 L.Ed.2d 491 (1968). This right may be waived, however, if: (1) the waiver is in writing; (2) the government consents; (3) the trial court accepts the waiver; and (4) the waiver is knowing, intelligent, and voluntary. F.R.Crim.P. 23(a); Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942); Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930).

Ms. Walker first argues her "waiver" was invalid because she never signed a written waiver as required by Rule 23(a). The requirement a defendant give her written consent to waive the right to trial by jury is intended to impress her with the significance of the right relinquished and provide evidence of her consent to forego that right. United States v. Martin, 704 F.2d 267, 271 (6th Cir.1983); 8A James W. Moore, Moore's Federal Practice p 23.03[b] (2d ed. 1994). Some circuit courts have adopted the view that noncompliance with Rule 23(a) does not ipso facto render a waiver invalid so long as there is an effective oral waiver of the right on the record. 8 E.g., United States v. Saadya, 750 F.2d 1419, 1420 (9th Cir.1985) (only exception to Rule 23(a)'s writing requirement "is where the record clearly reflects that the defendant 'personally gave express consent in open court, intelligently and knowingly.' " (Quoting United States v. Reyes, 603 F.2d 69 (9th Cir.1979)). In contrast, other circuits have concluded strict compliance with the requirements of Rule 23(a) is necessary to waive a jury trial. E.g., United States v. Garrett, 727 F.2d 1003, 1012 (5th Cir.1984), aff'd, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985).

Mindful of Rule 23(a)'s writing requirement and the reasons for it, we conclude requiring strict compliance with Rule 23(a) is not justified. In those circumstances where the record clearly reflects a defendant's waiver of the right is voluntary, knowing, and intelligent, we see no practical justification for finding a waiver invalid simply because Rule 23(a)'s writing requirement has not been met. Cf. United States v. Prichard, 875 F.2d 789, 790 (10th Cir.1989) (per curiam) (holding that collateral review of the validity of a jury waiver in the absence of a Rule 23(a) writing is not available absent any indication the defendant was prejudiced by "the technical error"). The Constitution requires only that a waiver of the right to trial by jury be knowing, intelligent, and voluntary. Adams, 317 U.S. at 275, 63 S.Ct. at 240; Patton, 281 U.S. at 312, 50 S.Ct. at 263....

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