U.S. v. Williams

• Decision Date: 11 March 2009
• Docket Number: No. 07-3004.,07-3004.
• Citation: 559 F.3d 607
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry A. WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

559 F.3d 607

UNITED STATES of America, Plaintiff-Appellee, v. Larry A. WILLIAMS, Defendant-Appellant.

No. 07-3004.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 2008.

Decided March 11, 2009.

Renato Mariotti (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Abner J. Mikva (argued), Mandel Legal Aid Clinic, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.

ROVNER, Circuit Judge.

Following a bench trial, Larry Williams was convicted of distributing crack cocaine and was ordered to serve a prison term of 252 months. Williams appeals, contending that the district court erred in accepting his jury waiver without taking steps to ensure that the waiver was knowing and intelligent. Because Williams did not raise this issue below, our review is confined to one for plain error, and the record does not support a finding that his substantial rights were affected by any error in accepting his waiver. We therefore affirm Williams' conviction.

I.

A one-count indictment charged that Williams knowingly and intentionally distributed more than fifty grams of cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). R. 5. The basis for the charge was Williams' sale of approximately fifty-eight grams of crack cocaine to an undercover agent of the Bureau of Alcohol, Tobacco and Firearms and a cooperating individual. The sale took place on October 30, 2003. Williams was arrested more than a year later, on November 4, 2004, and was indicted on November 30, 2004. He was arraigned on December 7, 2004, and entered a plea of not guilty. A series of status conferences and continuances ensued. The Federal Defender was appointed to represent Williams on May 19, 2006, after his previously-appointed counsel withdrew.

On November 30, 2006, when the parties' counsel appeared before the court for another status hearing, Williams' attorney announced that Williams, who was not present, wanted a bench trial:

Mr. Rodriguez: Good morning, your Honor. Sergio Rodriguez from the Federal Defender Program on behalf of Larry Williams. He was not brought over, but I was in contact with him. Your Honor, we are here to get a trial date finally. We are going to ask that this Court consider a bench trial. It should only be a couple of days long.

...

The Court: How long will it take?

Mr. Rodriguez: It is only going to be a couple of days.

Mr. Gurland: It should be quick.

[Assistant U.S. Attorney]

The Court: And you have consented?

Mr. Gurland: I have no objection to a bench trial.

Mr. Rodriguez: He is smiling, Judge.

The Court: Well, you actually have to consent.

Mr. Gurland: I consent.

The Court: I know that is painful.

R. 100 at 2-3. The court set the matter down for a bench trial on March 5, 2007.

The record of that hearing manifests compliance with the second and third of the conditions set forth in Federal Rule of Criminal Procedure 23(a) for a bench trial—consent by government and consent by the court—but not the first—a written waiver by the defendant of his right to a jury trial. The record contains no such written waiver, and neither party maintains that the defendant ever executed such a waiver.

Subsequent to this hearing, Williams' counsel filed a motion seeking leave to withdraw from representing Williams and to continue the trial date based on a breakdown of the attorney-client relationship. In that motion, Williams' attorney noted that "Mr. Williams still wishes to have a bench trial and would like one as soon as possible, but would like to have some time to prepare with new counsel." R. 58 at 2 ¶ 4. The court granted counsel's request to withdraw and a new attorney was appointed in his stead, but the scheduled trial date remained in place.

When the parties appeared for trial as scheduled on March 5, the court took the opportunity at the outset to confirm that Williams indeed wished to waive his right to a jury trial in favor of a bench trial. "I just want to make sure that you know you do have a right to a jury trial," Judge Andersen told Williams. R. 77-1 at 3. "And would you like to have a bench trial and waive the jury trial?" Id. "Yes, sir," Williams replied. Id. The trial commenced and concluded on the following day, when Judge Andersen found Williams guilty. The judge later ordered him to serve a prison term of 252 months.

Although the court confirmed with Williams at the start of the trial that he wished to waive his right to a jury trial, the court did not comply with the supervisory rule we adopted in United States v. Scott, 583 F.2d 362, 364 (7th Cir.1978) (per curiam), that requires a district court to interrogate a defendant before accepting his jury waiver in order to confirm that he understands the nature of the right and the consequences of his waiver. In United States v. Delgado, 635 F.2d 889, 890 (7th Cir.1981), we set out a colloquy that we viewed as sufficient to accomplish this task, one that explains to the defendant that (1) "a jury is composed of twelve members of the community"; (2) "the defendant may participate in the selection of jurors"; (3) "the verdict of the jury is unanimous"; and (4) in a bench trial, "the judge alone will decide guilt or innocence." The court's brief exchange with Williams at the start of the trial did not cover these points; the court simply confirmed that Williams knew he had a right to a jury trial and wished to waive it.

At no time in the proceedings below, however, did Williams or his counsel ever raise these omissions. Neither during nor after the trial did Williams object to the trial or to the judge's verdict on the ground that his waiver of the jury was uninformed and therefore invalid.

It is only on appeal that Williams argues that he did not knowingly and intelligently waive his right to trial by a jury. In the absence of a Delgado colloquy and other record evidence establishing his comprehension of the nature of right he was waiving, Williams contends that his jury waiver was invalid and that we must vacate his conviction and remand for a new trial. Alternatively, he asks that we remand for an evidentiary hearing as to whether his jury waiver was knowing and intelligent.

II.

The Sixth Amendment right to a trial by a jury in a criminal case is considered "fundamental to the American scheme of justice," Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968), safeguarding the defendant from "oppression by the Government," id. at 155, 88 S.Ct. at 1451. "Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from the group's determination of guilt or innocence." Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905-06, 26 L.Ed.2d 446 (1970). It is a right that the defendant can choose to waive. Adams v. 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). In keeping with the importance of the right, however, the decision to waive a jury is among those basic decisions about a case as to which the defendant himself has the ultimate authority; counsel may not make the decision on his behalf. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); United States v. Boyd, 86 F.3d 719, 723-24 (7th Cir. 1996); United States v. Robinson, 8 F.3d 418, 423 (7th Cir.1993) (quoting Williams v. DeRobertis, 715 F.2d 1174, 1182 (7th Cir.1983)). For the defendant's waiver to be valid, it must be voluntary, knowing, and intelligent. Williams, 715 F.2d at 1178-79 (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970)); see also Corcoran v. Buss, 551 F.3d 703, 711 (7th Cir.2008).

Rule 23(a) provides that "[i]f the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves." Fed.R.Crim.P. 23(a). The rule reflects the Supreme Court's decision in Patton, 281 U.S. at 312, 50 S.Ct. at 263; see also Adams, 317 U.S. at 275, 63 S.Ct at 240, and by requiring that the defendant's waiver be in writing, the rule serves "to ensure that a criminal defendant is aware of his jury right before waiving it and that any waiver is personal and unequivocal," United States v. Diaz, 540 F.3d 1316, 1322 (11th Cir.2008) (per curiam) (quoting United States v. Garrett, 727 F.2d 1003, 1012 (11th Cir.1984), judgment aff'd, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985)); see also Brown v. Burns, 996 F.2d 219, 221 (9th Cir.1993) (per curiam) (compliance with Rule 23(a) provides best record evidence of defendant's voluntary waiver).

Compliance with Rule 23(a) does not by itself establish that the defendant's waiver was informed, and it is for that reason that in Scott we instructed district courts to engage the defendant in a colloquy, later outlined in Delgado, designed to ensure that the defendant understands what he is giving up when he waives his right to a jury. See Brady, 397 U.S. at 748, 90 S.Ct. at 1469 ("Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences."); see also United States v. Lilly, 536 F.3d 190, 197-98 (3d Cir.2008) (coll. cases that either require or urge colloquies to ensure that jury waivers are informed).

However, neither a Delgado colloquy nor a written waiver is a constitutional mandate. See United States v. Rodriguez, 888 F.2d 519, 527 (7th Cir.1989) (colloquy not constitutionally required) (citing Williams, 715 F.2d at 1178); Wandick v. Chrans, 869 F.2d 1084, 1088 (7th Cir.1989) (same); Robinson, 8 F.3d at 422 ...