{"id":4208,"date":"2009-03-16T12:10:39","date_gmt":"2009-03-16T17:10:39","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=4208"},"modified":"2009-03-16T12:10:39","modified_gmt":"2009-03-16T17:10:39","slug":"seventh-circuit-week-in-review-part-ii-challenging-the-validity-of-a-jury-waiver-and-much-more","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/03\/seventh-circuit-week-in-review-part-ii-challenging-the-validity-of-a-jury-waiver-and-much-more\/","title":{"rendered":"Seventh Circuit Week in Review, Part II: Challenging the Validity of a Jury Waiver, and Much More"},"content":{"rendered":"

\"\"<\/a>This continues my review of the Seventh Circuit’s\u00a0new opinions in criminal cases, which I began here<\/a>.\u00a0 Of the remaining cases, only two merit\u00a0extended discussion.<\/p>\n

In United States v. Williams <\/em><\/a>(No. 07-3004), the court dealt with a challenge to the validity of a jury waiver.\u00a0 Before proceeding to a bench trial, Williams orally waived his right to a jury trial in open court.\u00a0 He did not, however, provide a written waiver, as required by Fed. R. Crim. P. 23(a).\u00a0 Nor did the judge engage in the colloquy recommended for jury waivers by United States v. Delgado<\/em>, 635 F.2d 889 (7th Cir. 1981).\u00a0 On appeal, the defendant argued that these procedural errors rendered his waiver invalid.<\/p>\n

The Seventh Circuit (per Judge Rovner) nonetheless affirmed.\u00a0 <\/p>\n

The court emphasized that there is no right of automatic reversal based on Rule 23 or Delgado <\/em>errors:<\/p>\n

As we have said, the sole constitutional requirement is that the waiver be voluntary, knowing, and intelligent.\u00a0 The colloquy and the written waiver serve to document these qualities, but a jury waiver may be valid despite their absence.\u00a0 So long as the defendant had a “concrete understanding” of his right to a jury trial, his waiver is valid.<\/p><\/blockquote>\n

So, did Williams have such a “concrete understanding”?\u00a0 Unfortunately, the record was silent as to what Williams actually understood.\u00a0 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.<\/p>\n

In the face of a silent record, the party that bears the burden of production and persuasion must lose.\u00a0 If the standard of review is harmless error, then the government bears the burden.\u00a0 If the standard is plain error, then the defendant bears the burden.<\/p>\n

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:<\/p>\n

As in Vonn<\/em> and Dominguez Benitez, <\/em>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.\u00a0 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.\u00a0 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.<\/p><\/blockquote>\n

Given the silent record, the adoption of this test dictated the outcome of the appeal in the government’s favor.\u00a0 After Williams<\/em>, defendants challenging a jury waiver clearly bear the burden of showing, in effect, a material misunderstanding of their jury trial rights.\u00a0 As the court suggested, it may be best for such claims now to brought first in the trial court under 28 U.S.C.\u00a0\u00a7 2255, which permits the development of an appropriate evidentiary record.<\/p>\n

In United States v. Washington<\/em><\/a> (Nos. 07-4067 & 07-4085), the court raised, but did not resolve, a novel question relating to the federal drug mandatory minimums.\u00a0 The basic sentencing ranges for federal drug trafficking offenses are set forth at 21 U.S.C. \u00a7 841.\u00a0 The range (which contains both a maximum and a minimum) is a function of the drug and quantity involved in the offense.\u00a0 However, in the trial of defendant Bennett, the jury declined to find what quantity of drugs were involved in the offense.\u00a0 In the absence of a quantity, the generic sentencing range applicable to Bennett was 0-30 years under \u00a7 841(b)(1)(C).\u00a0 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 \u00a7 841(b)(1)(A).\u00a0 The judge held that Bennett was indeed subject to the 20-year minimum and sentenced him accordingly.\u00a0 However, the judge also (properly) held that, under Apprendi v. New Jersey, <\/em>Bennett’s maximum sentence could not be increased beyond 30 years based on judicial (as opposed to jury) fact-finding.<\/p>\n

On appeal, Bennett argued that raising his minimum sentence from 0 to 20 years also violated Apprendi<\/em>.\u00a0 This constitutional argument, however, was seemingly foreclosed by Harris v. United States<\/em>, which held that Apprendi <\/em>applies only to increases in the maximum, not the minimum, sentence.\u00a0 And the Seventh Circuit (per Judge Wood) indeed held as much.<\/p>\n

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 \u00a7 841.\u00a0 In effect, the judge selected the maximum from (b)(1)(C) and the minimum from (b)(1)(A).\u00a0 Noting that Bennett did not make a statutory argument, however, the Seventh Circuit declined to resolve this question.\u00a0 This seems an invitation for defense lawyers to make the statutory argument in future cases in which judges increase the minimum under \u00a7 841 without also increasing the maximum.<\/p>\n

The remaining new opinions were in:<\/p>\n