United States v. Watts ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 01-20664
Summary Calendar
____________________
UNITED STATES OF AMERICA
Plaintiff – Appellee
v.
FREDERIC ERWIN WATTS
Defendant – Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. 00-CR-840-1
_________________________________________________________________
June 26, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Defendant Frederic Erwin Watts appeals his conviction and
sentence for violations of 18 U.S.C. §§ 371, 2113, and 924
(1994). For the reasons that follow, we AFFIRM the defendant’s
conviction and sentence.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
I. Factual and Procedural History
On November 2, 2000, Braylon Cloud and Roderick Sanders
entered the Carmine State Bank in Carmine, Texas, and demanded
money from the tellers. Sanders carried a rifle during the
course of the robbery. After obtaining money, the two men fled
the scene in a vehicle driven by the defendant, Frederic Erwin
Watts. Police subsequently stopped the vehicle and arrested all
three men, recovering $17,249 in the process. On November 29,
2000, a federal grand jury indicted Watts, Cloud, and Sanders on
charges of conspiracy to commit bank robbery, conspiracy to use
and carry a firearm during a bank robbery, bank robbery, and
carrying a gun in the course of a crime of violence, in violation
of 18 U.S.C. §§ 371, 2113, and 924.
On March 6, 2001, the district court held a hearing on a
motion to suppress filed by Watts. During the hearing, Watts
testified that the post-arrest statements he made to law
enforcement officers should be suppressed because he had not
waived his right to counsel prior to making the statements. The
district court denied the motion to suppress. Immediately
following this ruling, defense counsel Dick Wheelan approached
the bench, and the following dialog ensued:
THE COURT: Mr. Wheelan.
MR. WHEELAN: Mr. Watts has indicated that
he wants to proceed to a Court
trial and he wants to waive a
jury.
THE COURT: Okay.
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MR. WHEELAN: I haven’t – since the
statement has just been
admitted, I haven’t had a
chance to ask him again. If
the Court wants to give me a
minute, I’ll ask him if he
wants to reconsider, but I
doubt if he will.
THE COURT: Okay . . . .
The court and counsel then briefly discussed the witnesses.
After the dialog at the bench concluded, the proceedings in open
court continued as follows:
THE COURT: What are we going to do,
lawyers? Are we ready to
proceed?
MR. WHEELAN: Yes, Your Honor.
MR. SMITH [the prosecutor]: Yes, Your Honor.
THE COURT: Okay. All right. Then who’s
your first witness that you
wanted to –
MR. SMITH: Braylon Cloud. He’s in the
custody of the marshal.
THE COURT: All right. Call and get
Braylon Cloud down. Mr.
Wheelan, I understand that
we’re proceeding to a bench
trial and that Mr. Watts has
agreed to waive his right to a
jury in this case; is that
correct?
MR. WHEELAN: That’s correct, Judge.
THE COURT: Is that correct, Mr. Watts?
THE DEFENDANT: Yes.
MR. WHEELAN: Your Honor, my client is in
his jail garb. His mother
brought clothes for him
yesterday. Originally we were
set to go yesterday morning.
And I understand she’s in the
court today.
DEFENDANT’S MOTHER: I am.
MR. WHEELAN: Do you have the clothing with
you ma’am?
DEFENDANT’S MOTHER: Yes.
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THE COURT: Well, I don’t know if it is
that big of an issue when we
don’t have a jury involved.
Obviously if we were going to
have a jury trial, I think it
would be important to make
sure that the defendant was
not dressed in his jail
clothing. But given the fact
that we’re just going to
proceed with a trial to the
Court, that is not as much of
an issue or an issue at all, I
guess, in terms of the Court
trial. So, I think we can go
ahead and proceed with that.
The district court then proceeded with a bench trial without
obtaining from Watts a written waiver of a jury trial. The court
found Watts guilty on all four counts charged in the indictment
and sentenced Watts to concurrent terms of 70 months of
imprisonment for the first three counts and a consecutive term of
84 months of imprisonment for the remaining count, for a total of
154 months of imprisonment. In addition to the prison sentence,
the district court sentenced Watts to five years of supervised
release, a $400 special assessment, and restitution of $1000.
Watts timely appealed to this court.
II. Discussion
Federal Rule of Criminal Procedure 23(a) dictates that
“[c]ases 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.” FED. R. CRIM. P.
23(a). The United States Constitution requires Watts’s case to
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be tried by a jury. See U.S. CONST. Art. III, § 2, cl. 3 (“The
Trial of all Crimes, except in Cases of Impeachment, shall be by
Jury.”); see also id. amend. VI (“In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial,
by an impartial jury . . . .”). Despite the explicit language of
Rule 23(a), this court recognizes a “limited exception” to that
rule’s requirement that a waiver of a jury trial be in writing.
United States v. Mendez, 102 F.3d 126, 129 (5th Cir. 1996).
Although a defendant may orally waive a jury trial under this
limited exception, to be effective, the oral waiver must be
express and intelligent. Id. at 130-31; see also Patton v.
United States, 281 U.S. 276, 312 (1930), overruled on other
grounds by Williams v. Florida, 399 U.S. 78, 92 (1970).
Watts concedes that his oral waiver of a jury trial was
express. Watts argues, however, that the district court erred in
failing to determine whether his oral waiver was intelligent, and
thus erred in proceeding with a bench trial. Watts argues that
the record sheds no light on whether he intelligently waived his
right to a jury trial. In doubtful situations, Watts asserts,
courts must find that no waiver was made. The government
counters that the record shows that Watts was well aware of his
right to a jury trial and that he consented to the waiver of that
right. Thus, the government asserts that the district court did
not err when it conducted a bench trial. The adequacy of a jury
waiver is a mixed question of law and fact which we review de
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novo. United States v. Farris, 77 F.3d 391, 396 (11th Cir.
1996); see also United States v. Christensen, 18 F.3d 822, 824
(9th Cir. 1994).
In United States v. Page, 661 F.2d 1080 (5th Cir. 1981),
this court recognized a limited exception to the written waiver
requirement of Rule 23(a). In Page, trial counsel for a former
university professor on trial for mail fraud informed the court
in chambers that, after considerable thought, counsel and the
defendant had decided to proceed with a bench trial. Id. at
1080-81. Upon returning to the courtroom, the district court
asked on the record if the defendant wished to waive a jury
trial, and defense counsel, but not the defendant, answered
affirmatively. Id. at 1081. On appeal, the defendant argued
that his oral waiver was invalid under Rule 23(a). Id. at 1080-
81. This court held that the oral waiver was valid and that the
trial court was entitled to rely on the representations of
defense counsel. Id. at 1083. In reaching this holding, this
court reasoned that the defendant was “a highly educated and
articulate man” who “suffer[ed] neither language nor perceptive
difficulty” and who “in no manner exhibit[ed] [an] objection or
surprise as his counsel waive[d] [a] jury trial on the record.”
Id. at 1082, 1083. This court concluded that the district court
“did what [the defendant], explicitly by counsel and implicitly
by his own conduct, asked it to do. [The defendant] will not now
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be heard to say that the court fell into technical error in the
process of effectively carrying out his request.” Id. at 1083.
In the instant case, the government argues that Watts, like
the defendant in Page, intelligently and expressly waived his
right to a jury trial even though he failed to sign a written
waiver. Watts counters that this court’s decision in Mendez
controls the outcome of this case. In Mendez, the defendant was
indicted for possession with intent to distribute cocaine. 102
F.3d at 127. Immediately after a suppression hearing and without
a written waiver of a jury trial, the district court in Mendez
conducted a bench trial. Id. at 128. The district court
proceeded “as though a bench trial was the default option in
[the] situation” and did not give the defendant an “opportunity
to voice his objection to the dismissal of a venire.” Id. at
130. Defense counsel initially stated he had not discussed
waiving a jury trial with the defendant but later stated he
recalled discussing the issue eighteen months earlier. Id. at
128 & n.2. Relying on Page, the government argued that the
defendant impliedly waived his right to a jury trial, but this
court found Page distinguishable. Id. at 130. This court noted
that the character of the defendant in Page had been “[o]f
critical importance” in the court’s decision. Id. Unlike the
educated and articulate defendant in Page, the defendant in
Mendez was from a poor family in rural Columbia, could not speak
or understand English, did not understand the purpose of a jury,
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had been in this country only a few days before his arrest, and
claimed to have not spoken with his lawyer about a waiver. Id.
After concluding that the defendant’s character “was a far cry”
from that of the professor in Page, the Mendez court reversed the
defendant’s conviction and remanded the case for a jury trial.
Id. at 130, 132.
Contrary to Watts’s assertions, Mendez is readily
distinguishable from the instant case. The record reveals that,
unlike the defendant in Mendez, Watts had no difficulty speaking
or understanding English. In fact, Watts articulately testified
on his own behalf during the suppression hearing immediately
prior to his oral waiver of a jury trial. Moreover, while the
defendant in Mendez came from a poor Columbian family and had
only been in the country for a few days prior to his arrest,
Watts had previously been employed as a supervisor’s assistant in
the shipping/receiving department of Dell Computers, and he even
owned Dell stock. Although he did not graduate from high school,
Watts completed the eleventh grade. Watts further reported to
the probation department that he was competent in computer
programming. Thus, Watts is significantly more sophisticated and
knowledgeable than the defendant in Mendez. Most importantly,
the district court in this case, unlike the court in Mendez, did
not proceed as if a bench trial was the only option. Rather, the
district court ascertained that defense counsel and Watts had
previously discussed the issue and had decided to waive a jury
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trial. After giving defense counsel a chance to confirm Watts’s
desire to waive a jury trial, the district court questioned
defense counsel and Watts in open court regarding that desire.
For these reasons, the result in Mendez is not controlling in the
instant case.
We find that the facts of this case fall with the limited
exception to the requirement of a written waiver announced in
Page. Like in Page, defense counsel Wheelan clearly stated to
the court that Watts wished to waive a jury trial. The record
suggests that Watts and Wheelan had previously discussed waiver
and that the district court gave Wheelan a moment to confirm the
waiver with Watts immediately prior to commencing the bench
trial. As in Page, the district court in this case then asked
Wheelan and Watts in open court if Watts had agreed to waive his
right to a jury trial. Both Wheelan and Watts answered
affirmatively. Then Watts stood silent while the court discussed
the fact that Watts need not change out of his prison clothes for
a bench trial. These facts suggest that, like the defendant in
Page, Watts intelligently waived his right to a jury. By
conducting a bench trial, the district court merely did what
Watts, both explicitly and implicitly, asked it to do.
Watts testified intelligently during the suppression
hearing, discussed waiver of his right to a jury with defense
counsel, responded orally in the affirmative when the district
court asked him if he wanted to waive his right to a jury, and
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listened without objection to the district court’s comments
unequivocally indicating that there would be no jury. Given
these facts, we will not allow Watts to now claim that his waiver
of a jury trial was not intelligently made. As we concluded in
Page, Watts “will not now be heard to say that the court fell
into technical error in the process of effectively carrying out
his request.” 661 F.3d at 1083. Accordingly, Watts’s oral
waiver of his right to a jury trial was valid, and the district
court did not err by conducting a bench trial.
III. Conclusion
For the foregoing reasons, we AFFIRM the defendant’s
conviction and sentence.
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