a written waiver of his right to a jury trial the callil equiv between the court and the defendant over a few months was enough to show that he expressed really intelligently and knowingly waived his right to a jury trial well if this were mr max first foray into the federal system i might feel different but why shouldn't we take some judicial note of the fact that he's he had the first trial he came out here and what went on in that trial i think this court recognized that it didn't rise to the level of a jury trial that an individual is entitled to but it may be true but in talking to the district court the second time around explain to him what he jury trial was and what might happen in a jury trial and let the difficulties are shouldn't we to factor in crime jury trial there's a matter of common sense when the judge is talking to him i think you even though he had that prior jury trial i think that question to the judge that morning reflects that he really didn't know the advantages and disadvantages a judge that explained it on the well some of it that he didn't with all due respect to what the judge said what he told them the advantages of a bench trial because if you look at the trial transcript on page fourteen which is our excerpt of record page fifteen he says i can't give you advice as to what the advantages or disadvantages there are to anybody now first of all that those decisions and it's during that time that the judge says when he when he finishes he says it's confusing to you it's confusing to me it's a confusing to everybody because we're talking about a new development that brief little little colloquy i don't believe rises to the level of  present mr mack and you've been through this before because you have the right you had a trial before the jury before so you understand that i realize but i want to make sure you understand that you have the right to have your case tried by a jury having a hard time seeing i think or so as a district judge see these jury waiver forms frequently writes i'm having a hard time seeing now maybe it would have been better to get one obviously rule requires all right but i'm having a hard time seeing what the jury waiver form would have said that the judge didn't say and he agreed to well i think the jury waiver form doesn't specifically say it's a terrible idea don't do it i agree and the wa to the jury and to ask witnesses questions and you get to do a closing argument and you get to be involved and if we want to have an attorney you know doing it for you we will have you having to write notes that would never be a good for reading kansas and i would suggest to the jury and so that's why we don't think it was annoying and intelligent waiver on rollers or her matter of you time for trial has not sufficiently understood his jury trial rights so actually he may waive a jury trial upon a wee man after a successful appeal second issue is that in a case where the government's expert testifies that the substance the versus arizona five forty four f second it and thirty the court reversed the next case saying there had been no previous trial of the same issue by which the defendant could have acquired empirical knowledge of the formalities  wasn't required just made an observation that he hadn't been through the system before that's correct this defendant had asked ace that holds if a defendant has had a jury trial that's not a car and i don't think you do information indicating beyond any doubt that this defendant under these circumstances understood precisely what his trial rights were the first and most obvious fact which you've already explored is the fact that he had a jury trial he knew advantages and disadvantages of a bench trial versus a jury trial it requires the court to inform the defendant first of all that he or she is entitled to a jury by twelve members of the community while mr mack knows that because  told that he has a right to participate in jury selection while he knows that because he's already selected a jury once before he has the right to know that if he waives a jury trial then the judge will be the person deciding the facts in the case and determining guilt  obviously he knows that as well and he has to be told that the jury verdict must be unanimous well he said through the first trial he was present when the jury was instructed so he knows about the unity requirement opposing counsel cannot point to a single fact in the record that indicates either that the waiver in this case was involuntary or that mr mack lacked any of the information that would have been provided if the court had meticulously followed every point of the is there anything in the record indicated that mr mack was mentally challenged in any way no there is not your honor and in fact defense counsel advised the court that mr mack was competent and that there was no reason to suspect otherwise defendant says page eleven and again at page eighteen that when you don't have a written waiver then you have reversal per se christianson was very clear on that point and says that  type of trial that was the type that a defendant this serves even a defendant of this nature difficult clients we have then you will have to deal with that and it was reversed in light of the fact that these are this is that the underlying case for to hand sales it's your classic southern nevada drug case where they have surveillance officers you know they've got an undercover officer even on all of those facts this court found that prior jury trial was such that you should get a new one now judges on this committee i would just rather go in front of a judge as you know from the prior case there were incidents with the jurors spouse sitting in there he was alleged to have threatened the spouse he is choosing a judge trial because of what he thinks is going to happen in a jury trial based upon what happened in this prior jury trial and i think that alone is enough to make it unknowing not voluntary not intelligent because he thought what happened in front of judge one would happen again with a new jury and he was never going to get a fair trial in front of a new jury and i would suggest to you that's why on the morning of trial he's saying again can you tell me the advantages and disadvantages that she had a trial that i would term a regular trial one that goes through you you know you have your you're your disagreements between counsel and advocacy and everything else and then he waived that i would agree with you and say it's a no win an intelligent waiver but he was under the misimpression that what happened the first time would happen again in front of the jury and he