JAMES CHRISTOPHER PUGH, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6406

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The judgment order of the court of appeals (Pet. App. 1a) is
unreported, but the judgment is noted at 914 F.2d 1499 (Table).

                             JURISDICTION

   The judgment of the court of appeals was entered on August 31,
1990.  The petition for a writ of certiorari was filed on November 27,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether petitioner waived his right to a jury trial.

                               STATEMENT

   Following a bench trial in the United States District Court for the
Middle District of Florida, petitioner was convicted of possessing
cocaine with intent to distribute it, in violation of 21 U.S.C.
841(a)(1).  He was sentenced under the Sentencing Guidelines to 212
months' imprisonment, to be followed by five years of supervised
release.

   1. The evidence at trial showed that two police officers stopped
petitioner's rental car on May 15, 1989, when they observed the car
run a stop sign and drive in excess of the speed limit after leaving a
nightclub.  Petitioner was driving the car, but he did not have a
driver's license.  One of the officers saw the butt of a handgun on
the passenger-side floor of the car, and he asked the passenger, Jim
McCants, to step out.  Shortly afterwards, petitioner consented to a
search of the car, and he opened the trunk for the officers.  Inside
the trunk, the officers found a box containing 2,374 grams of crack
cocaine and 141 grams of cocaine powder in clear plastic bags.
Petitioner was arrested.  During the ensuing search, the officers
found $453 in cash and a pager on petitioner.  Another pager and a
portable cellular telephone were subsequently found during an
inventory search of the car.  In addition, petitioner's fingerprints
were later discovered on one of the plastic bags of crack cocaine.
Gov't C.A. Br. 3.

   2. Petitioner's trial was scheduled to begin on October 2, 1989.
That morning, defense counsel informed the district court that
petitioner desired, against his counsel's advice, to waive his right
to a jury trial:

      (DEFENSE COUNSEL):  (Petitioner has) informed me this morning
      that he desires to waive a jury trial in this cause and go with
      a bench trial.  It's against my advice, but that's what he wants
      to do.  We're preparing right now a written waiver provided for
      by the rules.  I alerted (the Assistant U.S. Attorney) last week
      that this possibility is there.

See Pet. 2.  Based upon that representation, the district court
excused the jury venire.  After a brief recess, defense counsel read
the written waiver into the record:

         (DEFENSE COUNSEL):  (A) waiver of jury trial that's been
      prepared at (petitioner's) request.  I mentioned earlier,
      meaning obviously no disrespect to the Court, but I felt it was
      in (petitioner's) interest to go with a jury trial in this case,
      but he has informed me after speaking to his parents he has
      decided to waive this.

         It says the defendant, James Christopher Pugh, having been
      advised of his right to a jury trial in the above case and that
      he, through his attorney, could participate in the selection of
      a jury to try his case and that such jury would have to find by
      an unanimous decision that he was guilty of the charges in the
      cause beyond a reasonable doubt hereby waives his right to a
      trial by jury and requests a bench trial before the court.

         James, is this what you wish to do?

         (PETITIONER):  Yes, sir.

         (DEFENSE COUNSEL):  You're sure of that?

         (PETITIONER):  Yes, sir.

         THE COURT:  Mr. Pugh, I will be determining the facts.  In a
      jury trial the jury determines the facts and the court
      determines the law.  At a bench trial the facts as presented by
      the witnesses will be determined by me as well as the law.

         All right, Sir.  I'm ready to proceed.

See Pet. 2-3.  Shortly thereafter, defense counsel told the district
court that petitioner had changed his mind and wanted a jury trial.
The district court declined to allow petitioner to withdraw his waiver
because the jury venire had already been discharged.  Pet. 2-3;  Gov't
C.A. Br. 1-2.  Petitioner was convicted, and the court of appeals
affirmed the conviction in an unpublished judgment order.  Pet. App.
1a.

                               ARGUMENT

   Petitioner contends (Pet. 4-9) that his conviction should be
vacated because he did not waive his right to a jury trial.  The
transcript excerpts that petitioner cites, however, establish that he
knowingly and intelligently waived his right to a jury trial.  His
fact-bound contention, in any event, does not warrant this Court's
review.

   Petitioner clearly was entitled to a trial by jury.  U.S. Const.
Amend. VI.  It is equally clear, however, that petitioner could waive
his right to a jury trial.  Singer v. United States, 380 U.S. 24,
33-34 (1965);  Patton v. United States, 281 U.S. 276, 297-298 (1930).
As this Court has explained, "(t)he short of the matter is that an
accused, in the exercise of a free and intelligent choice, and with
the considered approval of the court, may waive trial by jury * * *."
Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942).  In
determining whether a defendant validly waived his right to a jury
trial, "it is of course relevant whether he had the advice of
counsel." Id. at 277.

   In this case, defense counsel specifically advised petitioner not
to waive his right to a jury trial.  Petitioner makes no claim that he
did not understand his counsel's advice.  Nor does he contend that he
did not understand the consequences of waiving his right to a jury
trial.  Rather, petitioner primarily asserts (Pet. 7-8) that the
district court improperly accepted defense counsel's representation,
outside petitioner's presence, that petitioner wanted to waive his
right to a jury trial.  That assertion, however, overlooks the fact
that petitioner himself subsequently appeared before the district
court and expressly waived his right to a jury trial.  Petitioner was
present when his counsel read into the record the written waiver,
which stated that petitioner had been advised that he had a right to a
jury trial, that he could participate in the selection of the jury,
and that the jury would have to return a unanimous verdict to find him
guilty.  Petitioner then affirmed -- twice -- that he wished to waive
his right to a trial by jury and that he wanted a bench trial.  Thus,
contrary to petitioner's contention (Pet. 8), he clearly demonstrated
by his own words and actions before the district court that he desired
to waive his right to a jury trial.

   There is no merit in petitioner's claim (Pet. 5-6) that his oral
waiver was invalid because he subsequently refused to sign the written
waiver as required by Fed. R. Crim. P. 23(a).  Rule 23(a)'s
requirement of a waiver in writing "is primarily an evidentiary
requirement which insures that there is some evidence of the
defendant's voluntary consent." United States v. Martin, 704 F.2d 267,
274 n.8 (6th Cir. 1983);  see also United States v. Cochran, 770 F.2d
267, 274 n.8 (6th Cir. 1983);  see also United States v. Cochran, 770
F.2d 850, 851 (9th Cir. 1985) ("Compliance with the requirements of
Fed. R. Crim. P. 23(a) creates a presumption that the waiver is a
voluntary, knowing and intelligent one.").  For that reason, the
absence of a written waiver is not fatal if the record reflects that a
defendant personally waived his right to a jury trial in open court.
See United States v. Saadya, 750 F.2d 1419, 1420 (9th Cir. 1985);
United States v. Garrett, 727 F.2d 1003, 1012 (11th Cir. 1984), aff'd,
471 U.S. 773 (1985);  United States v. Page, 661 F.2d 1080, 1082-1083
(5th Cir. 1981), cert. denied, 455 U.S. 1018 (1982).  In light of
petitioner's unequivocal oral statements before the district court
that he agreed with the written waiver form prepared by his counsel,
his subsequent refusal to sign the form indicates only that he had a
change of heart, and not that he failed to waive his right
voluntarily, knowingly and intelligently.  /1/

   Nor is there any merit in petitioner's claim (Pet. 6) that his
waiver was invalid because the district court did not personally
interrogate him before accepting his oral waiver.  To be sure, the
Seventh Circuit has adopted a supervisory rule requiring district
courts to engage a defendant in a formal inquiry before accepting his
waiver of the right to a jury trial.  United States v. Delgado, 635
F.2d 889, 890 (1981);  United States v. Scott, 583 F.2d 362, 364
(1978).  While declining to exercise their supervisory powers to adopt
such a rule, a number of other courts of appeals have urged district
courts to conduct a colloquy with the defendant to emphasize the
seriousness of the decision to waive the right to a jury trial and to
create a clear record of the circumstances of the waiver.  See United
States v. Cochran, 770 F.2d at 852-853;  United States v. Martin, 704
F.2d at 274-275;  United States v. Anderson, 704 F.2d 117, 118-119 (3d
Cir.), cert. denied, 464 U.S. 838 (1983);  United States v. David, 511
F.2d 355, 361 & n.13 (D.C. Cir. 1975);  United States v. Hunt, 413
F.2d 983, 984 (4th Cir. 1969).  The courts of appeals agree, however,
that such an oral colloquy is not required by either Rule 23(a) or the
Constitution, but is merely the preferred practice.  See United States
v. Cochran, 770 F.2d at 851;  United States v. Martin, 704 F.2d at
274;  United States v. Scott, 583 F.2d at 363;  United States v. Hunt,
413 F.2d at 984.  In this case, defense counsel's interrogation of
petitioner in open court with respect to the written waiver form
constituted an adequate substitute for a formal inquiry by the
district court.  /2/

   At bottom, petitioner simply contends that the district court
should not have excused the jury venire before the recess based on his
counsel's representation that he wanted to waive his right to a jury
trial.  After the recess, however, petitioner twice confirmed in open
court that he wanted to waive his right to a jury trial against his
counsel's advice.  In any event, the timing of the district court's
decision to excuse the jury venire has no constitutional significance
for the purpose of determining whether petitioner waived his right to
a trial by jury.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   JOSEPH C. WYDERKO

      Attorney

   MARCH 1991

   /1/ Contrary to petitioner's suggestion (Pet. 8), this Court did
not rule in Singer v. United States, supra, that a waiver of the right
to a jury trial is invalid unless the procedural safeguards of Rule
23(a) are strictly satisfied.  Rather, the Court upheld the
constitutionality of Rule 23(a)'s provisions conditioning the
effectiveness of a defendant's waiver on the consent of the government
and the approval of the district court.  See 380 U.S. at 24-25, 36.

   /2/ Petitioner misplaces his reliance on Patton v. United States,
supra, for the proposition that the district court had a duty to
interrogate him before accepting his waiver.  In the passage from
Patton relied upon by petitioner (Pet. 4-5, 7), the Court was merely
explaining that it "(did) not mean to hold that the waiver must be put
into effect in all events" because the trial court has a duty to
decide whether to approve a defendant's waiver of his right to a jury
trial.  281 U.S. at 312.