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9th Circuit: Fraud convictions reversed for lack of evidence that defendants knowingly waived their right to a jury trial

United States v. Laney, __ F.3d __, 2018 WL 706497 (9th Cir. Feb. 5, 2018): Stipulations bearing only counsel’s e-signatures failed to show that defendants knowingly waived their right to a jury trial

Federal courts often remind us that they must “indulge every reasonable presumption against waiver of fundamental constitutional rights,” and that such waivers must be “voluntary, knowing, and intelligent” to be effective. What to do, then, when the only record confirmation that two fraud defendants waived their right to a jury trial consists of two stipulations bearing their lawyers’ electronic signatures?

Reverse, that’s what.

Kevin Laney and Brian Federico were charged with executing a scheme to defraud their construction- and concrete-company employers. Before trial, the government filed two stipulations, containing the electronic signatures of all parties’ counsel, representing that both defendants had waived their right to a jury trial. The stipulations referenced telephonic conference calls in which all parties’ counsel – but evidently not the defendants themselves – participated. The judge convicted both defendants following an eleven-day bench trial. On appeal, they claimed that the record failed to establish that they had voluntarily, knowingly, and intelligently waived their right to a jury trial. The Ninth Circuit agreed. The court noted that compliance with Federal Rule of Criminal Procedure 23(a) generally raises a presumption that a waiver was knowing and intelligent. But Rule 23(a) requires that the defendant waive a jury trial “in writing.” A stipulation signed only by counsel, the court held, does not amount to “the defendant” waiving his right “in writing.” The “proper practice” is for the defendant to sign the stipulation himself. And while a failure to produce the defendant’s own written waiver is not necessarily fatal to the waiver if other record evidence shows that it was knowing and intelligent, that was not the case here, because the stipulations emerged from conference calls in which the defendants did not participate. Because the invalid jury waivers constituted structural error, the court did not examine whether the error was harmless, but simply held that the convictions must be reversed.

(Congratulations to Scott A. Sugarman of Sugarman & Cannon, San Francisco, California, and Robert J. Beles and Paul McCarthy, of Law Offices of Beles & Beles, Oakland, California.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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