This continues my review of the Seventh Circuit’s new opinions in criminal cases, which I began here. Of the remaining cases, only two merit extended discussion.
In United States v. Williams (No. 07-3004), the court dealt with a challenge to the validity of a jury waiver. Before proceeding to a bench trial, Williams orally waived his right to a jury trial in open court. He did not, however, provide a written waiver, as required by Fed. R. Crim. P. 23(a). Nor did the judge engage in the colloquy recommended for jury waivers by United States v. Delgado, 635 F.2d 889 (7th Cir. 1981). On appeal, the defendant argued that these procedural errors rendered his waiver invalid.
The Seventh Circuit (per Judge Rovner) nonetheless affirmed.
The court emphasized that there is no right of automatic reversal based on Rule 23 or Delgado errors:
As we have said, the sole constitutional requirement is that the waiver be voluntary, knowing, and intelligent. The colloquy and the written waiver serve to document these qualities, but a jury waiver may be valid despite their absence. So long as the defendant had a “concrete understanding” of his right to a jury trial, his waiver is valid.
So, did Williams have such a “concrete understanding”? Unfortunately, the record was silent as to what Williams actually understood. Amazingly, Williams failed even to supply an affidavit on this question, let alone take up the Seventh Circuit’s suggestion that he return to the trial court to develop an evidentiary record in a collateral challenge to his conviction.
In the face of a silent record, the party that bears the burden of production and persuasion must lose. If the standard of review is harmless error, then the government bears the burden. If the standard is plain error, then the defendant bears the burden.
In order to decide who bears the burden when the defendant claims there was an invalid jury waiver, the court looked to Supreme Court precedent in cases in which defendants made the parallel claim that their guilty pleas were invalid because they were not fully apprised of their trial rights, and these cases suggested the following analysis:
As in Vonn and Dominguez Benitez, there was a failure to apprise Williams of the nature of the right that he was surrendering in his waiver, and as in those two cases, Williams did not raise the omission in the district court. As a result, our review is for plain error, and it is Williams who must show that his substantial rights were affected by the error. He must show that he did not have a concrete understanding of his right to a jury trial, and that but for the trial court’s failure to ensure he had that understanding, there is a reasonable probability that he would not have waived the right.
Given the silent record, the adoption of this test dictated the outcome of the appeal in the government’s favor. After Williams, defendants challenging a jury waiver clearly bear the burden of showing, in effect, a material misunderstanding of their jury trial rights. As the court suggested, it may be best for such claims now to brought first in the trial court under 28 U.S.C. § 2255, which permits the development of an appropriate evidentiary record.
In United States v. Washington (Nos. 07-4067 & 07-4085), the court raised, but did not resolve, a novel question relating to the federal drug mandatory minimums. The basic sentencing ranges for federal drug trafficking offenses are set forth at 21 U.S.C. § 841. The range (which contains both a maximum and a minimum) is a function of the drug and quantity involved in the offense. However, in the trial of defendant Bennett, the jury declined to find what quantity of drugs were involved in the offense. In the absence of a quantity, the generic sentencing range applicable to Bennett was 0-30 years under § 841(b)(1)(C). At sentencing, however, the judge determined that Bennett was responsible for at least 50 grams of crack, which would trigger a sentencing range of 20 years to life under § 841(b)(1)(A). The judge held that Bennett was indeed subject to the 20-year minimum and sentenced him accordingly. However, the judge also (properly) held that, under Apprendi v. New Jersey, Bennett’s maximum sentence could not be increased beyond 30 years based on judicial (as opposed to jury) fact-finding.
On appeal, Bennett argued that raising his minimum sentence from 0 to 20 years also violated Apprendi. This constitutional argument, however, was seemingly foreclosed by Harris v. United States, which held that Apprendi applies only to increases in the maximum, not the minimum, sentence. And the Seventh Circuit (per Judge Wood) indeed held as much.
But the court also questioned whether, as a matter of statutory law, the sentencing judge had the authority to mix and match sentencing ranges from different parts of § 841. In effect, the judge selected the maximum from (b)(1)(C) and the minimum from (b)(1)(A). Noting that Bennett did not make a statutory argument, however, the Seventh Circuit declined to resolve this question. This seems an invitation for defense lawyers to make the statutory argument in future cases in which judges increase the minimum under § 841 without also increasing the maximum.
The remaining new opinions were in:
- United States v. Irby (No. 08-1307) (district court’s admission of out-of-court statements made by confidential informant was not plain error).
- United States v. Watson (No. 08-1938) (search based on anonymous tip did not require suppression of evidence seized).
- United States v. Sawyer (No. 08-2236) (district court properly refused defendant drug dealer’s request for a duress instruction).
Finally, in addition to these new opinions, the court also issued a modified version of its earlier opinion in United States v. Brazelton (No. 07-2488).