United States v. McCurdy
Decision Date | 26 October 1971 |
Docket Number | No. 71-2353.,71-2353. |
Citation | 450 F.2d 282 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. H. Kenneth McCURDY, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Charles T. McCutcheon, (argued), San Diego, Cal., for appellant.
Brian E. Michaels, Asst. U. S. Atty., (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Acting Chief, Crim. Div., San Diego, Cal., for appellee.
Before WRIGHT and CHOY, Circuit Judges, and BYRNE, District Judge.*
Appellant McCurdy was convicted of smuggling and transporting marijuana in violation of 21 U.S.C. § 176a.
The sole issue on appeal is whether McCurdy validly waived jury trial within the terms of Rule 23(a), Federal Rules of Criminal Procedure. The Rule 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.
There was no written waiver signed by the defendant. However, the record sets forth the following colloquy:
In United States v. Guerrero-Peralta, 446 F.2d 876 (9th Cir., 1971), this court recently considered the requirements for a valid waiver of jury trial under Rule 23. There we held that a twelve-member jury could not be waived by a stipulation of counsel, the defendant being present but silent. Rule 23(b). We noted that the purpose of a writing under Rule 23 is to provide "the best record evidence of the express consent of a defendant." (Emphasis in the original.) We then stated: "Express consent given orally by the defendant personally and appearing on the record may be equally good evidence, but that much, as a minimum, must appear." P. 877.
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Hyatt v. Weber
...and expressly waives his right to a jury trial in open court, there has been compliance with Rule 23(a). United States v. McCurdy, 450 F.2d 282, 283 (9th Cir.1971). Here, the trial court engaged in the requisite "on the record" colloquy with Hyatt and trial counsel and only after doing so, ......
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U.S. ex rel. Williams v. DeRobertis
...colloquy was sufficient to demonstrate the lack of merit in petitioner's claim. Id. We also draw some support from United States v. McCurdy, 450 F.2d 282 (9th Cir.1971), even though the case specifically addressed only whether the defendant's jury waiver was valid under Rule 23(a) of the Fe......
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Douglass v. First Nat. Realty Corp.
...his personal act. Hensley v. United States, 108 U.S.App.D.C. 242, 244-246, 281 F.2d 605, 607-609 (1960). See also United States v. McCurdy, 450 F.2d 282, 283 (9th Cir. 1971). Nonetheless, there must be an express, positive waiver as distinguished from mere failure to request a jury. We find......
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U.S. v. Martin
...Pool v. United States, 344 F.2d 943, 945 (9th Cir.), cert. denied 381 U.S. 832, 86 S.Ct. 73, 15 L.Ed.2d 76 (1965); United States v. McCurdy, 450 F.2d 282, 283 (9th Cir.1971). Jury trial waivers are not effective unless the government attorney Fed.R.Crim.P. 23(a). See Patton, 281 U.S. at 299......