United States v. Mitchell, 18295.

• Decision Date: 18 June 1970
• Docket Number: No. 18295.,18295.
• Citation: 427 F.2d 1280
• Parties: UNITED STATES of America v. Richard MITCHELL, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

427 F.2d 1280 (1970)

UNITED STATES of America v. Richard MITCHELL, Appellant.

No. 18295.

United States Court of Appeals, Third Circuit.

Argued May 22, 1970.

Decided June 18, 1970.

Robert F. Simone, Philadelphia, Pa. (Louis J. Grippo, Pittsburgh, Pa., on the brief), for appellant.

W. Wendell Stanton, Asst. U. S. Atty., Pittsburgh, Pa. (Richard L. Thornburgh, U. S. Atty., on the brief), for appellee.

Before SEITZ and ALDISERT, Circuit Judges, and HIGGINBOTHAM, District Judge.

OPINION OF THE COURT

PER CURIAM.

Appellant, a dealer in used cars, was charged under 18 U.S.C. § 2313 with receiving a stolen motor vehicle known by him to have been stolen. The case was tried non-jury to the Distict Court for Western Pennsylvania and appellant was adjudged guilty, fined $500.00, and sentenced to one year and one day imprisonment. On appeal, he contends that (1) he did not voluntarily, intelligently, and knowingly waive a trial by jury, and (2) the presumption of knowledge that the automobile was stolen — based on possession of the recently stolen car — constitutes a violation of Fifth Amendment rights. We find no merit in either contention.

When this case was called for trial, appellant executed a non-jury waiver form which was submitted to and accepted by the district judge. The "Waiver of Jury Trial," also signed by appellant's privately retained counsel,¹ and consented to by the United States Attorney,² recited:

I, (defendant), having been fully informed of my Constitutional right to a trial by jury in the above-stated case, do hereby waive said right and consent to be tried without a jury by the United States Court for the Western District of Pennsylvania.

The following colloquy then occurred:

THE COURT: All right, proceed non-jury. Waiver has been signed and all that?

THE CLERK: Right here.

THE COURT: It is here. That\'s Mr. Mitchell defendant back of you, it is, Mr. Grippo counsel?

MR. GRIPPO: Correct, Your Honor.

THE COURT: And you have signed this waiver now, have you, to proceed non-jury?

(Defendant nods)

MR. GRIPPO: Yes, he has.

THE COURT: Is that right?

THE DEFENDANT: Yes.

THE COURT: Well, go ahead then.

In view of the signed waiver and the colloquy with the court, the assertion that we are presented with a "silent record" cannot stand. The record is silent only to the extent that it fails to contain any suggestion that appellant's waiver was anything but voluntarily and intelligently entered. Appellant has never argued, or even intimated, that he was incompetent to execute a waiver, that his decision was induced by coercion or promises, Dranow v. United States, 325 F.2d 481, 483-485 (8 Cir. 1963), or that he did not appreciate the gravity of the offense charged, Riadon v. United States, 274 F.2d 304, 307 (6 Cir.), cert. denied, 364 U.S. 896, 81 S.Ct. 225, 5 L.Ed.2d 189 (1960). Just as in United States v. Hunt, 413 F.2d 983 (4 Cir. 1969), where the defendants acknowledged in signing a waiver that they had been "informed of their rights," appellant's waiver form specifically stated that he had been "fully informed of his Constitutional right to a trial by jury." In this regard, the present case presents a stronger showing of intelligent waiver than did Hatcher v. United States, 122 U.S.App. D.C. 148, 352 F.2d 364 (1965), rehearing denied, en banc, 352 F.2d 365 (1965), cert. denied, 382 U.S. 1030, 86 S.Ct. 654, 15 L.Ed.2d 542 (1966), in which the waiver form contained no assurance that the defendant had been advised of any rights.³

We do believe that

it is better practice for a district judge, when advised by a defendant that he desires to waive his right to a jury trial, to interrogate the defendant so as to satisfy himself that the defendant is fully apprised of his rights and freely and voluntarily desires to relinquish them.

United States v. Hunt, supra, 413 F.2d at 984. Certainly, "such direct communication is desirable so there can be no question of the defendant's `intentional relinquishment or abandonment of a known right.'" Hatcher v. United States, supra, 352 F.2d at 365. In this case, however, there is "no suggestion that appellant's act of waiver was not intentional or without actual knowledge of his right to a jury trial." Id. See also Pool v. United States, 344 F.2d 943, rehearing denied, (9 Cir. 1965).

Moving to appellant's second contention, we find no merit in the argument that appellant's Fifth Amendment right to remain silent was infringed by the trial court's presumption that he had knowledge that the car was stolen. First, there is no solid evidence that the trial judge actually indulged the presumption. Appellant points to only one remark of the court below: "I think the whole case requires some explanation. * * *." And considering the overwhelming evidence, which we need not rehearse here, that appellant did know that the auto was stolen, the court was entirely justified in observing that "some explanation" was in order if appellant wished to be found not guilty. Indeed, this evidence would have been sufficient in the absence of any presumption to support a verdict of guilty beyond a reasonable doubt.

But even assuming that the lower court did apply the presumption, we find no violation of a constitutional right. We need not catalogue the large number of cases holding that the unexplained possession of recently stolen goods raises a presumption or warrants an inference of guilty possession. See, ...