United States v. Livingston, 71-1022.

• Citation: 459 F.2d 797
• Decision Date: 02 May 1972
• Docket Number: No. 71-1022.,71-1022.
• Parties: UNITED STATES of America v. Thomas Lee LIVINGSTON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

459 F.2d 797 (1972)

UNITED STATES of America v. Thomas Lee LIVINGSTON, Appellant.

No. 71-1022.

United States Court of Appeals, Third Circuit.

Argued October 5, 1971.

Reargued January 12, 1972.

Decided May 2, 1972.

Richard A. Axelrod, Vermont Legal Aid, Inc., St. Johnsbury, Vt., for appellant.

James W. Walker, Asst. U. S. Atty., Scranton, Pa., for appellee.

Before McLAUGHLIN, GANEY and ADAMS, Circuit Judges.

Reargued En Banc before SEITZ, Chief Judge, and McLAUGHLIN, GANEY^*, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, MAX ROSENN, JAMES ROSEN and HUNTER, Circuit Judges.

Reargued En Banc January 12, 1972.

OPINION OF THE COURT

SEITZ, Chief Judge.

Defendant appeals a judgment of sentence imposed for failure to report for induction into the United States Army. 50 App.U.S.C. § 462. Several contentions are raised as grounds for setting aside defendant's conviction. However, in view of our disposition of this appeal we need consider only the issue of whether it was permissible for the district judge to condition his grant of defendant's request for a non-jury trial on defendant's waiver of findings of fact and conclusions of law.

Prior to trial defendant requested that his case be tried to the court without a jury. Noting that "by waiving a jury, defendant was asking the judge to find the facts as well as the law," the court declined to grant the request "unless the defendant . . . agreed that the Court would not have to find findings of fact and conclusions of law." Defendant acceded to this condition and the case was heard without a jury. At the close of all the evidence the court merely entered its order finding defendant "guilty." This appeal followed.

We note at the outset that the district court conditioned its grant of defendant's request for a non-jury trial on a waiver by him of both findings of fact and conclusions of law. The applicable rule, however, requires only that the court "make a general finding and . . in addition on request find the facts specially." Rule 23(c), F.R.Crim.P. Detailed legal conclusions are, of course, appropriate in non-jury criminal proceedings, particularly when the facts of a case suggest several legal principles which the trial judge might have invoked. Cf. Canon 19, The Canons of Judicial Ethics of the American Bar Association. See also United States v. Rivera, 444 F.2d 136, 138 & n. 5 (2d Cir. 1971). We do not here decide, however, whether the facts of this case mandated the court to formulate conclusions of law. Rather, we conclude only that the district court erred when it conditioned defendant's request for a non-jury trial on a waiver by him of his right to request that the court find the facts specially.

Findings of fact in non-jury criminal cases primarily aid the defendant in preserving questions for appeal and aid the appellate court in delineating the factual bases on which the trial court's decision rested. See 8 Moore's Federal Practice (Cipes, 2d ed.), Para. 23.05. Indeed, it has been suggested that findings under Rule 23(c) are a prerequisite to preserving for appeal issues concerning the significance or existence of a particular fact. See Wilson v. United States, 250 F.2d 312, 325 (9th Cir. 1957); Cesario v. United States, 200 F.2d 232, 233 (1st Cir. 1950). Findings of fact are essential to proper appellate review of a conviction resulting from a non-jury trial. This was an important consideration when the present text of Rule 23(c) was promulgated, altering pre-existing law and requiring the trial judge to make special findings, if requested. See Barron & Holtzoff, Federal Prac. & Proc., § 2124 (Rules ed.). Compare United States v. Weber, 437 F.2d 1218, 1221 (7th Cir. 1971) with Lofland v. United States, 357 F.2d 472, 477 (9th Cir. 1966). Rule 23 (c) entitled the defendant to request and receive special findings. Howard v. United States, 423 F.2d 1102, 1104 (9th Cir. 1970).

Of course, defendant here at no time requested special findings. However, such a request indeed would have been futile in view of the pre-trial waiver imposed upon defendant by the court. Cf. id. at 1104. The defendant was therefore under no obligation to request special findings. The district court cannot, by procuring such a pre-trial waiver, avoid its responsibility to make findings of fact when presented with a timely request. As the court said in Howard, supra: "The defendant's right to such findings is not trivial, and his exercise of that right is not to be impaired by the exertion of pressure from the court."

It remains to be considered what relief to accord the defendant. We have reviewed the record and find that credibility issues are not of such pervasiveness as to require a new trial. We therefore think that the district judge who tried this case is in a position fairly to make the findings required by Rule 23 (c) before imposing sentence.

The judgment of sentence based on the guilty verdict is vacated and the case remanded to the district court for further proceedings in accordance with this opinion.

Circuit Judge McLAUGHLIN concurs in the result.

ADAMS, Circuit Judge (dissenting).

I respectfully dissent from the holding of the majority opinion because I do not believe that what the district court did with regard to waiver of the jury trial constitutes plain error.

At the very beginning of the trial,¹ the defendant moved to waive the jury. The district judge informed the defendant of the advantages of a jury trial and of defendant's right to demand a jury. The judge explained that by waiving a jury trial, the defendant would be relinquishing the right to a unanimous verdict and would be "asking the judge to find the facts as well as the law." The following colloquy then ensued:

"THE COURT: * * * Do I understand that is what you want to do?

THE DEFENDANT: That is true, sir.

THE COURT: Very well. The Court doesn\'t need to accept such a responsibility² and the Court will not unless you also agree that the Court will not have to find findings of fact and conclusions of law.

DEFENDANT\'S ATTORNEY: We will agree to that.

THE COURT: You are satisfied to do that?

DEFENDANT\'S ATTORNEY: Yes.

THE COURT: Are you satisfied, Mr. Livingston?

THE DEFENDANT: I am.

THE COURT: That is your own wish?

THE DEFENDANT: That is my own wish."

Rule 23(c) of the Federal Rules of Criminal Procedure provides: "In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. * * *" (Emphasis added.) Accordingly, absent a request, defendant would not have been entitled to such findings. No such request was ever made, and in addition, defendant never objected in any way to the condition imposed by the court.

Defendant seeks to circumvent the fact that he made no objection by arguing that to have objected would have imposed on him to the risk of incurring the anger of the trial judge. But nothing in the record indicates that the trial judge was so emotional with regard to the issue of special findings that he would have reacted in a manner adverse to defendant if the defendant had specifically requested that findings be made, or objected to the statement that the judge was not going to make findings. Rather, the record clearly demonstrates that defendant made an advertent decision that it would be to his advantage to proceed with a trial before the court, even without special findings of fact. Later, after he was adjudged guilty of the offense charged, the defendant still appeared...