[ PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 20

- 11877

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellant,

versus
IDRIS SHAMSID

- DEEN,

Defendant

- Appellee.

____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 5:18

- cr

- 00071

- MTT

- CHW

- 1

____________________ USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 1 of 382 Opinion of the Court 20

- 11877

Before J ILL P RYOR , B RANCH , and E D C ARNES , Circuit Judges. ED CARNES, Circuit Judge :Under the federal criminal code, various categories of people are prohibited from possessing firearms. See 18 U.S.C. § 922(g). The category that most frequently results in a charge for unlawfully possessing a firearm consists of those who have been convicted in any court of “ a crime punishable by imprisonment for a term exceeding one year.” See id. § 922(g)(1). A smaller category, and one that is not as well

- known, consists of people who have been “convicted in any court of a misdemeanor crime of domestic violence.” See id. § 922(g)(9). This case is about that smaller category. It involves a firearms possession charge based on a previous domestic violence misdemeanor conviction. The question before us arises from an exception contained inthe statutory definition of the term “misdemeanor crime of domestic violence.” I d. § 921(a)(33). Under the excepti on, an otherwise qualifying previous conviction that was obtained without a jury trial does not count unless “the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.” Id. § 921(a)(33)(B)(i)(II) (bb).
Idris Shamsid

- De e n , found in possession of a firearm, was charged with violating § 922(g)(9) based on a previous misdemeanor conviction for battery under the Georgia Family Violence Act, O.C.G.A. §§ 16

- 5

- 23.1, 19

- 13

- 1. The district court granted his pretrial motion to exclude evidence of that previous conviction USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 2 of 3820

- 11877 Opinion of the Court 3 after determining that his waiver of a jury trial in the earlier state proceeding resulting in the conviction had not been knowi ng and intelligent. Because that pretrial ruling l eft the government without any evidence to prove the prior qualifying conviction element of the charged § 922(g)(9) offense, the government filed this a ppeal. See 18 U.S.C. § 3731

. I. The Procedural Histor y and Facts
A. The 2014 Georgia Misdemeanor Battery Conviction

After a fight with his girlfriend, Shamsid

- De e n was charged in Bibb County, Georgia, in December 2013 with misdemeanor battery under Georgia’s Family Violence Act
, O.C.G.A. §§ 16

- 5

- 23.1, 19

- 13

- 1

. Minutes before a bench trial of th at charge was scheduled to begin in the state court of that county in April 2014, the prosecutor, defense counsel, and Shamsid

- De e n signed both sides of a double

- sided form.
The first side of the fo rm explained the right to counsel and noted that “an attorney has education and experience concerning

. . . how to select a jury if I desire a jury trial.” Doc. 70

- 2

. Th is same side of the form gave Shamsid

- De e n three options, and he initialed next to the one containing this statement : “ I desire to be represented by an attorney and will pursue all diligent and reasonable efforts to hire one, if I ha ve not already done so.” Id.
The second side of the form, titled “Record of the Court,” explained some procedural matters and the consequences of USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 3 of 384 Opinion of the Court 20

- 11877 various kinds of pleas. Doc. 70

- 3. It also contained the following language: I am fully aware that upon a not guilty plea, I have the right to a trial , either before a jury or the Court

. . . . I understand that if I plead guilty, I will waive (give up) these rights to a trial . . . . I also understand that a conviction on certain offenses may affect my

. . . right to possess a firearm. Id

. (emphasis added). Th is same side of th e form included two pleading options, “guilty plea” and “not guilty plea
, ” and a line next to each for the defendant to initial t he selected option

. Id. Shamsid

De e n initialed the line next to “not guilty plea,” which provided: I plead NOT GUILTY to the charge(s) against me and request a non jury trial. I knowingly and voluntarily waive (give up) my right to a trial before a jury of six persons chosen from citizens of Bibb County called for jury duty who would hear the evidence and law and decide if I am guilty or not guilty. I want my case to be heard and decided by the Judge acting without a jury

. Id. (emphasis added). The judge also signed th is second side of the form, just below this statement: “Upon inquiry in this case as required by law,the Court finds that the plea of the Defendant is freely and voluntarily entered and any waiver of rights is done with a full understanding of those rights and wit h an understanding of the charges against the Defendant.” Id. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 4 of 3820

- 11877 Opinion of the Court 5

Neither side of the form contained a place for a defendant to sign, initial, or check to indicate that he wanted to plead not guilty and have a jury trial.
At the start of the bench t rial it self , the prosecutor told the judge that Shamsid

- De e n wished “to plead not guilty” and “proceed with his attorney” to “have a non

- jury trial before [the court] th is afternoon.” The court replied, “Mr. Shamsid

- Deen, is that what you want to do?” Shamsid

- Dee n answered, “Yes, sir.” After hearing testimony from the victim, the investigating police officer, and Shamsid

- Deen, the court found him guilty of battery under the Georgia Family Violence Act

. Before sente ncing, defense counsel asked the court to consid er that Shamsid

- Deen had “proceeded on a non

- jury basis to avoid the trial tax
, ” and explained: “[A] lot of times I tell defendants, you know, I like bench trials because you don’t waste jurors’ time, and it helps you sort of avoid the trial tax sometimes. ” By “trial tax,” Shamsid

- Deen’s lawyer meant the “perception that state

- court defendants electing a jury trial face harsher sentences.” The cour t s entenced Shamsid

Deen to 12 months jail time, to be served on probation.
B. The § 922(g)(9) Federal Indictment and Proceedings
About three

- and

- a

- half years later, i n November 2017, Shamsid

- Deen was found in possession of a revolver. Based on that and his Georgia battery conviction, he was indicted in December
2018 for violating § 922(g)(9) by possessi ng a firearm after conviction of a misdemeanor crime of domestic v iolence. He filed three USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 5 of 386 Opinion of the Court 20

- 11877
motions to dismiss the indictment, each one asserting some variation of this contention : his Georgia battery conviction did not qualify as a misdemeanor crime of domestic violence because he hadn’t knowingly and intelligently waive d his right to a jury trial, which under § 921(a)(33)(B) (i)(II) (bb) is an exception to § 922(g)(9). And each time, the district court rejected that argu ment as a premature request to determine the sufficiency of the evidence supporting an affirmative defense to the § 92 2 (g)(9) charge. During a hearing on the motions to dismiss, the court heard testimony from the Bibb County Solicitor General about the

co unty court’s general procedures in 2014, when Shamsid

- Deen was convicted of domestic violence battery

. The Solicitor General testified that unrepresented misdemeanor defendants in Bibb C ounty typically attend ed a mass “ cattle call ” initial appearance wher e they each receive d a copy of the standard, double

- sided form and , as a group, hear d a judge explain their right s

. But that procedure change d if a defendant ha d a lawyer, as Shamsid

- Deen did. Where a defendant ha d a lawyer, Bibb County trea ted the lawyer’s entry of appearance as a waiver of the initial appearance and “ relie [d] upon that person ’ s attorney to explain their rights to them .”
The Solicitor General te stified that “ any time a defendant is represented

— the only way for a defendant to get off of a jury trial calendar is for the defendant or the defendant ’ s attorney to request a plea or a non

- jury trial; otherwise, we proceed

— our default is

to go to jur y trial .” At the time Shamsid

- Deen was convicted, a defendant’s case “automatically [was] put on the jury calendar
, ” USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 6 of 3820

- 11877 Opinion of the Court 7

and d efendants didn’t “get onto a non

- jury trial calendar without asking for it ” b ecause “ the default [was] a jury.” When asked about

“ wh at opportunities ” a defendant who wanted a jury trial would

“ have had to ask for that jury trial ,” the Solicitor General replied:

“ They don ’ t even have to ask; they are automatically going on a jury trial term

. . . . That’s the default. ”
The Solicitor General also testified about Shamsid

- Deen’s case in particular. After reviewing his case file, she explained that he had been “ scheduled for first appearance on January 10th, 2014 ,” where “ he would have heard his rights recited by the judge ” and

“ would have received a copy of the Rec ord of the Court and Waiver of Rights form .” She stated that there was a notation onhis file in her handwriting that said “to hire lawyer,” and she explained: “ [I] f I wrote ‘ to hire lawyer, ’ that means I talked t o him, and he would have gotten his rights sheet, and he would have heard the judge ’ s

— one of the judges recite the rights .” Although she didn’t know whether she was “ the one who took the case all the way through,” she did know that it was her handwritin g on the form from “that Friday morning arraignment.” As we have mentioned, the court ultimately denied Shamsid

- Deen’s motions to dismiss. But the court note d that if Shamsid

- Deen could “think[] of a way to get before [it] the issue of whether his jury tr ial waiver was effective, ” the c ourt w ould consider that issue. The court also “ tentatively agree [ d ]” with the government ’s suggestion that “an appropriate vehicle to raise ” th e waiver issue was a Fed. R. Evid. 104(a) hearing

. Shamsid

- Deen USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 7 of 388 Opinion of the Court 20

- 11877 quickly filed a Rule 104 motion in limine asking the court to exclude the evidence of his Georgia battery conviction.
In his motion, Shamsid

- Deen noted that the form he had signed minutes before his bench trial contained only two plea options, neither of which allowed him to choose a jury trial

. He also pointed out that “despite explaining that the person has a right to a jury trial, the form does not explain how the accused invokes his right to a jury trial.” And he explained that a Bibb County defendan t in 2014 who had a lawyer “generally” d id not attend an initial appearance or hear a judge explain his rights; instead, the c ounty relie d on the defendant’s lawyer “to explain his rights to him.”
Shamsid

- Deen also asserted that while he “may have been present for his initial appearance on January 10, 2014 , ” the parties agreed it was “unk nown” whether he was actually there

. What was “known” was that he wanted to plead not guilty and had selected the only option on the form he signed for doing that
, which was “p leading not guilty, but waiving his right to a jury trial.” He added that the government hadn’t show n that when he pleaded guilty to the Georgia domestic violence battery charge that anyone had explained to him his right to a jury trial, had told him how to exercise that right, or had given him the option of exercising that right

. In his view, the government had the burden of persuasion and
, given the lack of proof that he had knowingly and intelligently waived his right to a jury trial, the Georgia domestic violence battery conviction was not admissible

. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 8 of 3820

- 11877 Opinion of the Court 9

Based on those assertions , Shamsid

- Deen contended the court should exclude the evidence of his Georgia battery conviction u nder Rule 104(a)

. He argued that the § 921(a)(33)(B)(i)(II)(bb ) exception made proof of a knowing waiver a “necessary precondition” to his conviction qualifying as a misdemeanor crime of domestic violenc e. A nd because the conviction d id n’t qualify, it wasn’t relevant evidence and
, under Rule 104(a)
, it wasn’t admissible

. In response to Shamsid

- Deen’s motion in limine, the government contended that
, as the moving party
, Shamsid

- Deen ha d both burdens

— production and persuasion

— and ha d n’t met either one

. It argued that he had the burden of production be cause the § 921(a)(33)(B) exception is an affirmative defense

. And he hadthe burden of persuasion because he was “likely to have significantly more knowledge” about his Georgia battery conviction than the prosecutor would , so putting th e burden on him “maximizes the likelihood of more accurate fact finding.” The government noted that Shamsid

- Deen had chosen not to call his former lawyer as a witness even after the district court asked him if he wanted to do so

. And it pointed out that S hamsid

Deen had waived his right to a jury trial in a nother misdemeanor

case five years before the misdemeanor battery conviction in question. That, the government argued , was “some evidence” of Shamsid

- Deen’s “ familiarity with the process for waiving th e right to a jury trial

. ” Finally, the government a rgued the court should assess adm issibility under subsection (a) of Rule 1 0 4 instead of USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 9 of 3810 Opinion of the Court 20

- 11877

under subsection (b) because subsection (a) is a better pretrial vehicle for addressing questions of law like whethe r Shamsid

- Deen knowingly and intelligently waive d his right to a jury trial

. Shamsid

- Deen co ntended that the jury waiver form he had signed before his bench trial was itself enough evidence to grant his motion because it was coercive

. Th at form , he argued, was coercive because it failed to explain how he could assert the right to a jury trial , essentially “ direct ing” defendants who wanted to plead not guilty to ward bench trials by giving them only that option. In addition, t he form was changed in 2018 , four years after Shamsid

Deen ’s bench trial and conviction
, to include three plea options instead of two. The additional option on the newer form allows a defendant to initial a blank line indicating his choice to plead not guilty and request a jury trial. As for the lack of testimony from his attorney in the Georgia
state battery proceedings about their conversations during th ose proceedings, Shamsid

- Deen contended that th e absence of that testimony actually established his right to relief

. Without any evidence about what his attorney had told him, the party with the burden of persuasion on the jury waiver issue would lose
, and he argued that party was the government. The government count ered that it was Shamsid

- Deen who had the burden of proving that his waiver was not valid, and the general procedures of the county court put the waiver form in context and supported a conclusion that Shamsid

- Deen ’s waiver was knowing

. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 10 of 3820

- 11877 Opinion of the Court 11

The district court granted Shamsid

- Deen’s motion to exclude evidence of his Georgia domestic violence battery conviction. It noted that the parties agree d § 921(a)(33)(B) (i) (II) is an affirmative defense
, and it believed that they were correct because the pro vision meets the three

- part test this Court has used to determine whether to treat an exception to a criminal statute as an affirmative defense. See United States v. McArthur , 108 F.3d 1350, 1353 (11th Cir. 1997) (noting that we “ begin with the language a nd structure of the statute ,” then “ examine the legislative history of the provision
, ” and finally “ decide whether the defendant or the government is better situated to adduce evidence tending to prove or disprove the applicability of the exception ”).
The court also found that “the affirmative defense established by § 921 [(a)] (33)(B) [(i)] (II) does not negate an element of the § 922(g)(9) offense

. ” That’s b ecause the exception in § 921 (a) (33)(B) is “wholly separate from the definition” of a misdemeanor crime of domestic violence in § 921 (a) (33) (A) , which

means a conviction could both qualify as a § 922(g)(9) offense under subsection (A) and “ nonetheless be subject to the exception in subsection (B ) .” So the court found that Shamsid

- Deen had the burden of production, which “generally rests on the defendant” when “an affirmative defense does not negate an element of the crime.”
The district court then turned to the burden of persuasion issue, which it acknowledged was a more difficult one

. The court concluded that our statement in United States v. Laroche , 723 F.2d USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 11 of 3812 Opinion of the Court 20

- 11877

1541 , 1543 (11th Cir. 1984), that the government had the burden of persuasion for affirmative defenses created through statutory exceptions was only dicta

. See Welch v. United States , 958 F.3d 1093, 1098 (11th Cir. 2020) (“[D]icta is not binding on anyone for any purpose.” ) ; United States v. Pickett , 916 F.3d 960, 966 (11th Cir.
20 19) ; In re BFW Liquidation, LLC , 899 F.3d 1178, 1186 (11th Cir. 2018)

. Finding no binding Eleventh Circuit precedent, the district court was persuaded by the First Circuit’s reasoning in United States v. Hartsock , 347 F.3d 1 (1st Cir. 2003)

. In that case
, the First Circuit reasoned that because the government will rarely have access to evidence about a defendant’s waiver, saddling it with the burden of persuasion would “ substantially hamper ” its ability to enforce § 922(g). See id. at 9

– 10. Agreeing with that reasoning, t he district court found that Shamsid

- Deen had the burden of persuasion as well as the burden of production. After putting both burden s on Shamsid

- Deen , the district

court wa s persuaded that he had carried both of th em and that he had established his waiver of a jury trial of the 2014 Georgia domestic violence battery charge had not been knowing and intelligent. It had not been because the waiver form he had signed “did

not u nequivocally apprise defendants of their jury trial rights ” and there was no evidence that Shamsid

- Deen’s attorney had explained those rights to him

. The form was also structurally misleading because it offered only two plea options, which Shamsid

- Deen “could have reasonably concluded . . . were the only options available to him.” USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 12 of 3820

- 11877 Opinion of the Court 13

The court found that the form’s flaws were not cured by the bench trial record in the Georgia case , which showed what it called “no evidence of an effective jury trial waiver

. ” T he court thought that the brief colloquy between Shamsid

- Deen and the judge “simply confirm [ed] the executed form

— of the two options available, Shamsid

- Deen opted for a bench trial

. ” It recognized that Shamsid

- Deen’s former attorney ’s reference to avoiding a “trial

tax ” indicated that the attorney “ may have made a strategic decision to waive a jury trial

. ” B ut the court thought that even if the attorney had made that decision, there was “ no indication that Shamsid

- Deen understood the r ights that counsel had relinquished.” And the court found th at Bibb C ounty’s general court practices didn’t show Shamsid

- Deen’s waiver was valid because, while there was evidence he may have been present at his initial appearance to hear a judge explain h is rights, there was also some evidence that his scheduled appearance had been canceled because he had obtained an attorney the day before the appearance was to

occur

. Finally, the district court noted that it had given the parties time to consider whethe r to present Shamsid

- Deen’s testimony or testimony from his former lawye r

. But “ [ w ] hatever significance can be attached to the absence of” their testimony, the court thought that it did “not undermine” the court’s finding that the evidence, particularly t he form, was “more than sufficient to warrant the conclusion that Shamsid

- Deen did not knowingly and intelligently waive his right to a jury trial. ” Because Shamsid

- Deen’s USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 13 of 3814 Opinion of the Court 20

- 11877 waiver wasn’t knowing and intelligent, the court granted his pretrial motion to exc lude evidence of his Georgia domestic violence battery conviction.
II. Analysis
Under 18 U.S.C. § 922(g)(9) , it is unlawful for a person “whohas been convicted in any court of a misdemeanor crime of domestic violence” to “possess in or affecting commerce, any firearm or ammunition.” A separate provision, § 921(a)(33), defines “misdemeanor crime of domestic vio lence” as an offense that both is a misdemeanor under any law and :has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as aspouse, parent, or guardian, by a person similarly situated to a spouse, parent, or guardian of the victim
, or by a person who ha s a current or recent former dating relationship with the victim

. Id. § 921(a)(33)(A). A different subsection of § 92 1 (a)(33) provides exceptions to that definition, including that :A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] for purposes of this chapter , unless . . . in the case of a USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 14 of 3820

- 11877 Opinion of the Court 15 prosecution for an offense . . . for which a person was entitled to a jury trial . . . the person knowingly and intelligently waived the right to have the case tried b y a jury

. . . . Id. § 921(a)(33)(B)(i)(II)(bb). “A defendant may waive his Sixth Amendment right to a jury trial when: (1) he gives express, intelligent consent; (2) the government consents; and (3) the waiver is approved by the responsible judgment of the trial court.” United States v. Diaz , 540 F.3d 1316, 1321 (11th Cir. 2008) (quotation marks omitted). The trial court to which the waiver is submitted must determine whether it is knowing and intelligent based on the circumstances of the case. Id. By al erting the state trial court to Shamsid

- Deen’s desire to proceed without a jury, the prosecutor for his Georgiadomestic violence battery charge indicated the government’s consent to his waiver of a jury. And by proceeding to try Shamsid

Deen without a ju ry , the state trial court approved his waiver of a jury. The ultimate question we must answer is whether , as the district court concluded, Shamsid

- Deen did not knowingly and intelligently waive his right to a jury trial in the state proceeding that led to his conviction of misdemeanor battery under Georgia’s Family Violence Act

. If he didn’t, the district court’s order excluding any evidence of that conviction is due to be affirmed. Otherwise, that order is due to be reversed. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 15 of 3816 Opinion of the Court 20

- 11877

W e first decide what standard of review applies to the district court’s decision . We then decide which party has the burden of production and which one has the burden o f persuasion

. Once those legal premises are determined , we apply them to the relevant fact s in the record before us

. A. Standard of Review

1. For the § 921(a)(33)(B) (i) (II)(bb) Exception

We ha ve never decided what standard of review applies to a district court decision excluding evidence of a prior conviction based on the court’s conclusion that the conviction fell into a statutory exception that encapsulates a constitutional defect in the proceedings leading to the conviction. W e hav e , however, decided the standard of review that applies to circumstances analogous to the present one

. The analogous circumstances we are talking about are not those involving run

- of

- the

- mill evidentiary and trial pr ocedure rulings of the type that routin ely aris e in near ly every trial. T he normal, typical, usual standard for reviewing normal, typical, usual evidentiary and trial procedure rulings is abuse of discretion. See, e.g. , Gen. Elec. Co. v. Joiner , 522 U.S. 136, 141 (1997) (stating , in a case invo lving admission o f expert opinion evidence
, that “ abuse of discretion is the proper standard of review of a district court’s evidentiary rulings”) ; United States v. Abel , 469 U.S. 45, 53

– 55 (1984) ( reviewing for abuse of discretion a district court’s determination about whether the prejudicial effect of evidence outweigh ed its USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 16 of 3820

- 11877 Opinion of the Court 17 probative value) ; United States v. Barsoum , 763 F.3d 1321, 1341 (11th Cir. 2014) ( r eview ing for abuse of discretion the denial of a motion for new trial on the b asis of newly discovered evidence )

. Th ere are good reasons why abuse of discretion is the standard of review in those circumstances. For one thing, “ as a matter of the sound administration of justice
, ” it is wise to vest discretion in the “judicial actor . . . better positioned than another to decide the issue in question.” Pierce v. Underwood , 487 U.S. 552, 559

– 60 (1988 ) (quotation marks omitted)

. “Immersed in the case as it unfolds, a district court is more familiar with the procedural and factual details and is in a better position to decide” many evidentiary and similar issues. United States v. Brown , 415 F.3d 1257, 1266 (11th Cir. 2005) ; see als o Cooter & Gell v. Hartmax Corp. , 496 U.S. 394, 404 (1990) (re cognizing the value of “[d]eference to the determination of courts on the front lines of litigation”) ; United States v. Whatley , 719 F.3d 1206, 1219 (11th Cir. 2013 ) ( “ Our deferential standard r espects that the district court has a better vantage point from which to make this judgment call. ”)

. W e have also recognize d that “the district court is uniquely situated to make nuanced judgments on questions that require the careful balancing of fact

- s pecific concepts like probativeness andprejudice, and we are loathe to disturb the sound exercise of its discretion in these areas.” United States v. McGregor , 960 F.3d 1319,
1324

– 25 (11th Cir. 2020) (quoting United States v. Jernigan , 341 F.3d 1273, 1285 (11th Cir. 2003) )

. And sometimes deferential review is necessary to give the district court the “ flexibility to resolve USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 17 of 3818 Opinion of the Court 20

- 11877 questions involving multifarious, fleeting, special, narrow facts that utterly resist generalization.” Cooter & Gell , 4 96 U.S. at 4 04 (quotation marks omitted)

. There’s another reason that purely evidentiary and trial procedure issues get abuse of discretion review and not de novo review : giving them de novo review would encourage more appeals, which would not be a good thing. See id

. ( noting a n abuse of discretion standard “will also discourage litigants from pursuing marginal appeals, thus reducing the amount of satellite litigation”) ; Brown , 415 F.3d at 1266 (“ And we don ’ t want to denigrate the importance of the trial and encourage appeals of rulings relating to the testimony of expert witnesses. ”). Rulings on issues of law, including those that apply law to fact, are a different matter. De novo review of issue s of law is appropriate because a court of appeals is in as good a position to decide them as a district court is

. Not only that, but a non

- deferential standard of review is necessary for what the Supreme Court has recognized as a federal appellate court’s “primary function as an expositor of law.” Miller v. Fenton , 474 U.S. 104, 114 (1985) ; s ee also Cooter & Gell
, 496 U.S. at 404 (referring to “ the normal law

clarifying benefits that come from an appellate decision on a question of law ” ) (quotation marks omitted)

. W ith an abuse of discretion standard there is often “ a range of choice for the district court ” within which we will affirm the court’s decision regardless of which way it rules , “ so long as that choice does not constitute a clear error of judgment

. ” In re USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 18 of 3820

- 11877 Opinion of the Court 19 Rasbury , 24 F.3d 159, 168 (11th Cir. 1994) (quotation marks omitted)

. As w e explained about our affirmance in Rasbury : Quite frankly, we would have affirmed the district court had it reached a different result, and if we were reviewing this matter de novo
, we may well have decided it differently. By definition, however, under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. I

d. ; accord , e.g. , United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc)

. This means that if we review ed legal issues only for an abuse of discretion and two district courts (or the same district court in different cases) decided an identical legal issue in o pposite ways , we

c ould affirm both of them so long as neither decision constituted a clear error of judgment. See Rasbur y

, 24 F.3d at 168 ; Frazier , 387 F.3d at 1259 ; MSP Recovery Claims, Series LLC v. Hanover Ins. Co. , 995 F.3d 1289, 1296 (11th Cir. 2021) (“ Of course, by saying that the district court did not abuse its discretion [in deciding not to award attorney’s fees an d costs]
, we do not address whether another or even the same district court could properly decide to award attorney ’ s fees and costs when faced with a substantially similar removal. ”)

. The strength of the a buse of discretion standard is that it provides di strict courts with some flexibility in deciding evidentiary and trial pr ocedur e matters. The strength of the de USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 19 of 3820 Opinion of the Court 20

- 11877

novo standard is that it does not ; it sacrifices district court flexibility in favor of clarity, uniformity, and consistency in the decision of legal issues.That is why we review district court decisions of constitutional issues

–– the most important issues of law

–– not for abuse of discretion but de novo

. See , e.g. , United States v. Dennis
, 26 F.4th 922, 926 (11th Cir. 2022) (“We re view questions of law de

novo

. ”); United States v. Underwood , 446 F.3d 1340, 1345 (11th Cir. 2006) (“ We review questions of constitutional law de novo

. ”) ; United States v. Brown
, 364 F.3d 1266, 1268 (11th Cir. 2004) ; Nichols v. Hopper , 173 F.3d 820, 822 (11th Cir. 1999)

. T o use a formulation that is especially relevant for this case, we have held that : “W hen an evidentiary ruling implicates a constitutional question, we review those legal questions de novo .” United States v. Machado , 886 F.3d 1070, 1085 n.14 (11th Cir. 2018).

De novo review also applies to review of decisions of non

constitutional issues of law

. See , e.g. , U.S. Bank Nat ’l Ass ’ n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC , 138 S. Ct. 960, 965 (2018) ; Highmark Inc. v. Allcare Health Mgmt. Sys., Inc.
, 572 U.S. 559, 563 (2014) ; AT&T Mobility LLC v. Concepcion , 563 U.S. 333, 350 (2011) ; Viverette v. Comm ’ r of Soc. Sec. , 13 F.4th 1309, 1313

– 14 (11th Cir. 2021) ; Talamantes

- Enriquez v. U.S. Att ’ y Gen. , 12 F.4th 1340, 1347 (11th Ci r. 2021); Senter v. United States
, 983 F.3d 1289, 1291 n.3 (11th Cir. 2020) ; United States v. Goldman
, 953 F.3d 1213, 1223 (11th Cir. 2020)

. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 20 of 3820

- 11877 Opinion of the Court 21

And de novo is the standard used in review ing the issues of law in mixed questions of law and fact. See, e.g. , U.S. Bank Nat. Ass ’ n

, 138 S. Ct. at 96 7 ( noting that when m ixed questions “ requirecourts to expound on the law, particularly by amplifying or elaborating on a broad legal standard ,” or “w hen applying the law inv olves developing auxiliary legal principles of use in other cases ,”

courts “ should typically review a decision de novo ”) ; Wallace v. Jaffree , 472 U.S. 38, 76 (1985) (O’Connor, J., concurring) (noting that certain First Amendment issues “ are mixed questions of law and fact that are properly subject to de novo appellate review ”) ; United States v. Gonzalez

- Zea , 995 F.3d 1297, 1301 (11th Cir. 202 1 ) (“ Because rulings on motions to suppress involve mixed questions of fact and law, we review the district court ’ s factual findings for clear error and its application of the law to the facts de novo .” ) (quoting United States v. Jordan , 635 F.3d 1181, 1185 (11th Cir. 2011)) ; Carmichael v. United States , 966 F.3d 1250, 1258 (11th Cir. 2020) (“ In an appeal from a section 2255 proceeding, we review legal conclusions de novo and factual findings for clear error. ”)

. Because the validity of a waiver of a constitutional right

— whether it was knowing, intelligent, and voluntary

–– presents a mixed question of law and fact, we have consistently held that a district court’s decision about it is subject to de novo review

. See United States v. Garey , 540 F.3d 1253, 1268 (11th Cir. 2008) (en banc) (waiver of counsel) ; United States v. Hakim , 30 F.4 th 1310, 1318 (11th Cir. 2 022) ( waiver of counsel) ; United States v. Cash , 47 F.3d 1083, 1088 (11th Cir. 1995) ( waiver of counsel ). And , even USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 21 of 3822 Opinion of the Court 20

- 11877 more on point for this case, we have also held that the validity of a waiver of the right to a jury trial is a mixed question of law and fact that we review de novo

. See Diaz , 540 F.3d at 1321 ; United States v. Farris , 77 F.3d 391, 396 (11th Cir. 1996)

. All of this precedent points in the same direction: toward de

novo review of a district court’s decision about whether a defendant’s waiver of his right to a jury trial was knowingly and intelligently made. To be sure
, th at issue comes clothed i n the un usual procedural context of the § 921(a)(33)(B) (i) (II)(bb) exc eption to the crime defined in § 922(g)(9) . But the exception contained in item (bb) is defined in terms of the test for waiver of constitutional rights. Instead of saying “unless . . . the person knowingly and intelligently w aived the right to have the case tried by a jury ,” as it did, Congress might as well have said: “ unless . . . ther e was no constitutionally valid jury waiver.”
If we view the (bb) exception as what it is in substance, the issue is a constitutional one, which is subject to de novo review. Even if we don’t view it as a constitutional issue, it is still at least a legal issue
, or a mixed issue of law and fact
, or the application of law to fact

. Di fferent verbal formulation s, same standard of review. For all of these reasons, w e hold that a district court’s decision about whether the § 921(a)(33)(B) (i) (II)(bb) exception applies in this § 922(g)(9) prosecution is subject to de novo review.
For what it’s worth, our holding matches the holding s of the other four court s of appeals that ha ve decided this issue in the context of § 921(a)(33)(B) ; all agree that de novo review is the proper USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 22 of 3820

- 11877 Opinion of the Court 23

standard. United States v. Akins , 276 F.3d 1141, 1146 (9th Cir. 2 002) ; Hartsock , 347 F.3d at 4; United States v. Bethurum , 343 F.3d 712,
716

– 17 (5th Cir. 2003); United States v. Smith , 171 F.3d 617, 619, 621

– 22 (8th Cir. 1999)

. 2. For the Burden of Production and Persuasion Issues
The other standard of review question we must answer is what type of review we must give to the district court’s decision about w hich party bears the burdens of production and persuasion on the § 921(a)(33)(B) exception issue. And who bears those burdens depends on two different questions of law: (1) whether § 921(a)(33)(B) defines the elements of a misdemeanor crime of domestic violence or is instead an affirmative defense to that offense; and (2) whether, if § 921(a)(33)(B) is an affirmative defense, it n egate s an element of the domestic violence offense.Both questions are resolved through examination of the statutory language. See, e.g. , United States v. Johnson , 981 F.3d 1171,
118 3

– 87 (11th Cir. 2020) (evaluating § 921(a)(33)(B) to determine whether it defines element s or sets out affirmative defense s ) ; United States v. Kloess , 251 F.3d 941, 947 (11th Cir. 2001) (evaluating 18 U.S.C. § 1515(c) to determine whether it i s an affirmative defense that “ tend s to negate an element of the crime charged ” and therefore ha s to be “ disproved by the government ”) (emphasis omitted) ; McArthur , 108 F.3d at 1 353 (noting that we “begin with the language and structure of the statute” when evaluating

“ whether an exception to a criminal offense is an element of the crime or an affirmative defense ”). USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 23 of 3824 Opinion of the Court 20

- 11877

It is well settled that q uestions of statutory construction are legal determinations that we review de novo

. See , e.g. , United States v. Svete , 556 F.3d 1157, 1161 (11th Cir. 2009) (en banc) (“ Questions of statutory construction are reviewed de novo

. ”); United States v. Evans , 478 F.3d 1332, 1341 (11th Cir. 2007) ; United States v. Johnson , 399 F.3d 1297, 1298 (11th Cir. 2005) ; United States v. Trainor , 376 F.3d 1325, 1330 (11th Cir. 2004)

. B

. The Applicable Burden s o f Production and Persuasion In a close case, the burdens of production and persuasion can decide the case. See, e.g. , United States v. Iriele , 977 F.3d 1155, 1177 (11th Cir. 2020) (noting that where the defendant bears the burden of persuasion, a “ tie goes to the government ” ); United States v. Rodriguez , 398 F.3d 1291, 1300 (11th Cir. 2005) (“ Where errors could have cut either way and uncertainty exists, the burden is the decisive factor

. . . . ”); Goldman Sachs Grp., Inc. v. Ark. Teacher Ret. Sys. , 141 S. Ct. 1951, 1970 (2021) (Gorsuch, J., concurring in part and dissenting in part) (“ The whole reason we allocate the burden of persuasion is to resolve close cases by providing a tie breaker where the burden does make a difference. ”). The district court f

ound that both burdens were on Shamsid

- Deen. We agree.

1. The Burden of Production
Whether the defendant or the government bears the burden of production depends on whether the § 921(a)(33)(B) exception define s an element of a “misdemeanor crime of domestic violence”

or set s out an affirmative defense to that crime. If it defines an USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 24 of 3820

- 11877 Opinion of the Court 25 element of the crime, the government must both plead and prove the existence of it. See Johnson , 981 F.3d at 1184 n.8 (“[I] f the Section 921(a)(33)(B) components were elements, the government would be required to prove them .”); In re Winship , 397 U.S. 358, 364 (1970) ( holding that the government must prove every element of a crime beyond a reasonable doubt)

. But if § 921(a)(33)(B) instead sets out an aff irmative defense, “ the defendant has the burden of going forward with sufficient evidence to raise the exception as an issue

. ” Laroche , 723 F.2d at 1543 ; United States v. Alvarez , 755 F.2d 830, 842 n.12 (11th Cir. 1985)

. Our Johnson decision, which came ou t after this case left the district court, is binding precedent that vindicates the district court’s decision that § 921(a)(33)(B) contains affirmative defense s , which puts the burden of production on Shamsid

- Deen. See 981 F.3d at 1182
, 1184 n.8 ; cf. Alvarez , 755 F.2d at 842 n.12 (“[T] he absence of self

- defense is not an element of the crime. Rather, self

defense is an affirmative defense on which the defendant bears the burden of production. ”)

. In Johnson , we explained that § 921(a)(33) “includes two subsections” and that “subsection (a)(33)(A) contain s

. . . elements” while “subsection (a)(33)(B) contain s affirmative defenses.” 981 F.3d at 1182

. We would be bound under the prior panel precedent rule to follow that holding even if we believed it to be wrong, but we note that it aligns with our decisions characterizing other § 921(a) exceptions. See, e.g. , United States v.Jackson , 57 F.3d 1012, 1015

– 17 (11th Cir. 1995) (implicitly recognizing that § 921(a)(20) is an affirmative defense); Laroche , 723 F. 2d at USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 25 of 3826 Opinion of the Court 20

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154 3 (explicitly recognizing that § 921(a)(3) and § 921(a) (16) are affirmative defenses)

. So, Shamsid

- Deen had the burden of production.

2. The Burden of Persuasion
Whether the district court is correct that Shamsid

- Deen also had the burden of p ersuasion depends on whether the affirmative defense in § 921(a)(33)(B) (i)(II)(bb) negate s an element of the “misdemeanor crime of domestic violence” offense . “ Any defense whic h tends to negate an element of the crime charged, sufficiently raised by the defendant, must be disproved by the government. ” Kloess , 251 F.3d at 947 (emphasis omitted ) ; see also id. at 948 (“[I] f the defendant introduces evidence that has the effect of n egatingany element of the offense, the government must disprove that defense beyond a reasonable doubt .”). So to decide who has the burden of persuasion here, the precise question we need to answer is whether § 921(a)(33)(B) affirmative defenses negate, “contradict or tend to disprove any element of” § 922(g) (9) , see Dixon v. United States , 548 U.S. 1, 11 (2006) , which criminalizes possession of a firearm by a person who has been convicted of a misdemeanor crime of domestic violence, or § 921(a)(33)(A), w hich defines what constitutes a misdemeanor crime of domestic violence
, see Johnson
, 981 F.3d at 1182.

A s he did in the district court, Shamsid

- Deen contends that § 921(a)(33)(B) affirmative defenses are the kind that negate an element of the § 922(g)(9) offense, specifically the “status” element USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 26 of 3820

- 11877 Opinion of the Court 27 (that is, his status as a person who ha s been convicted of a misdemeano r crime of domestic violence). The government argues that § 921(a)(33)(B) (i)(II) does not negate an element of § 922(g)(9) because affirmative defenses that “ negative guilt by cancelling out the existence of some required element of the crime ” typically i nclude

“ certain kinds of mistake of fact, mistake of law, intoxication, or insanity, ” which “ are properly viewed as proof that the defendant did not have the mental state required for the crime charged.” See 1 W.R. LaFave, Substantive Criminal Law § 1.8(c) , at 107 (3d ed. 2018)

. Only one federal appellate court has addressed this exact question, and it too relied on LaFave’s black

- letter law. See Hartsock
, 347 F.3d at 8 . On its way to concluding that a § 921(a)(33)(B) (i) defense d id not negate, contradict, or tend to disprove an element of § 922(g)(9) , the First Circuit explained: [T] he label “affirmative defense” applies to different categories of defenses. See 1 LaFave, Substantive Criminal Law , § 1.8(c) (1986). One such category is defenses that “negativ e guilt by cancelling out the existence of some required element of the crime.” Id.Other categories of affirmative defenses, such as duress, do not negate an element of the crime, but instead provide a justification sufficient to overcome or mitigate crim inal liability. Id. Yet a third type of affirmative defense is based on individual exceptions to substantive crimes. Id. ; see [ United States v. ] Bartelho , 71 F.3d [436,] 440 [ ( 1st Cir. 1995)] (finding that USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 27 of 3828 Opinion of the Court 20

- 11877 a statutory exception created an affirmative defense). Affirmative defenses in this third category are typified by “an exception or proviso setting forth the defense.” LaFave, supra , § 1.8(c). It is in this third category of affirmative defenses that § 921 (a)(33)(B)(i)(I) properly belongs. Hartsock , 347 F.3d at 8

. As the LaFave treatise recognizes, affirmative defenses thatnegate elements of offenses are typically ones that negate a defendant’s criminal state of mind. See 1 LaFave, Substantive Criminal L

aw , § 1.8(c) ; Dixon , 548 U.S. at 7 (“Like the defense of necessity, the defense of duress does not negate a defendant’s criminal state of mind when the applicable offense requires a defendant to have acted knowingly or willfully; instead, it allows the def endant to avoid liability because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.”) (cleaned up). T hose kinds of defenses are of a different category than defenses that appear as statutory exc eptions or provisos. See Hartsock , 347 F.3d at 8 ; 1 LaFave, Substantive Criminal Law , § 1.8(c)

. Section 921(a)(33)(B) does not negate a domestic violence misdemeanant’s criminal state of mind; it merely creates exceptions to the default rule that an offens e meeting the elements in § 921(a)(33)(A) qualifies as a misdemeanor crime of domestic violence

. See 18 U.S.C. § 921(a)(33)( B). And it does so in a separate sub section from the one that lists the elements of that crime. See id. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 28 of 3820

- 11877 Opinion of the Court 29

Section 921(a)(33)(B) “allows the defendant ” who did not knowingly and intelligently waive his r ight to a jury trial “ to avoid liability because ” the absence of a valid waiver “ negates a conclusi on of guilt even though the necessary mens rea ” for the misdemeanor crime of domestic violence “ was present.” See Dixon , 548 U.S. at 7 (quotation marks and alteration omitted)

. But it doesn’t negate or tend to disprove that he committed that crime. It does n’t invalidate his conviction. It just allows him to avoid having that conviction used as a qualifying predicate for a § 922(g)(9) charge. In that way, it’s similar to how this Court treat s “question[s] about the validity of the prior convictions used to enhance [a] sentence under 18 U.S.C. § 924(e).” See Jackson , 57 F.3d at 1016. In Jackson , we explained: Under § 924(e), the burden is properly placed on thedefendant raising the challenge to show the constitutional invalidity of the prior convictions. An y givenconviction might suffer any of a myriad of constitutional defects. It would approach the absurd to require the government to undertake to prove guilt all over again in every predicate conviction

. Instead, the government’s burden is properly met whe n it introduces evidence that there are at least three prior violent felony convictions. The defendant must then point out any defects in a particular prior conviction.
57 F.3d at 1016 (alterations adopted) ( emphasis added) (quoting United States v. Ruo
, 943 F.2d 1274, 1276 (11th Cir. 1991) )

. Of USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 29 of 3830 Opinion of the Court 20

- 11877

course, Jackson dealt with a different § 921(a) exception and needed to decide only whether that exception was an affirmative defense that required the defendant to bear the burden of production , so
our statement about the reasonableness

— or rather, the absurdity

— of requiring the government to bear the burden of persuasion is dicta. See 57 F.3d at 1017 (holding that the defendant bears the burden of production on a § 921(a)(20) defense).
But dicta can be persua sive, and it is here. J ackson ’s reasoning about who bears the burden of production on a § 921(a)(20) defense applies just as strongly to determining who bears the burden of persuasion on a § 921(a)(33)(B) defense , including the (B) (i) (II)(bb) defense at is sue in this case

. We agree with the district court that the § 921(a)(33)(B) defense s do not negate an element of the § 922(g)(9) crime.
So Shamsid

- Deen b ears the burden of persuasion , as well as the burden of production, on the § 921(a)(33)(B) (i)(II)(bb) exception

. 1

1 In our Laroche opinion we made this statement: “Where affirmative defenses are created through statutory exceptions, the ultimate burden of persuasion remains with the prosecution , but the defendant has the burden of goin g forward with sufficient evidence to raise the exception as an issue.” 723 F.2d at 1543 (emphasis added). But as the district court correctly noted, that statement is dicta because we did not actually reach the burden of persuasion issue in deciding the L aroche case. We stopped our analysis at the burden of production stage. See id. (“We . . . hold that the antique weapons exception [in § 921(a)(3), (16)] is in essence an affirmative defense that must be raised by the defendant before the burden shifts to the government to disprove its USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 30 of 3820

- 11877 Opinion of the Court 31

C

. The Inapplicability of the § 921(a)(33)(B)(i)(II)(bb) Exception

applicability. Here the defense introduced no ev idence that the weapons came within the exception; accordingly the government was under no obligation to disprove its applicability.”). Because the statement in Laroche was not necessary to the result in that case, it was dicta. See, e.g. , Rambaran v. Sec ’ y, Dep ’ t of Corr., 821 F.3d 1325, 1333 (11th Cir. 2016) (“[T]he statement is dicta because it was not necessary to the result in [the earlier case].”); United States v. Santa
, 236 F.3d 662, 672 n.14 (11th Cir. 2000) (“As the court’s statement in [the earli er case] was unnecessary to its decision, it is a dictum and does not control our decision in th is case.”); United States v. Eggersdorf , 126 F.3d 1318, 1322 n.4 (11th Cir. 1997) (“More important, the pertinent language in [the earlier case] is dicta

–– not necessary to deciding the case then before us.”). It’s true that we repeated the Laroche dicta in our Johnson opinion. Johnson
, 981 F.3d 1171, 1184 & n.9 (11th Cir. 2020). But the Johnson opinion’s use of the Laroche dicta is itself dicta. That’s because we did not decide the Johnson case on the burden of persuasion. Instead, as we had in Laroche , in Johnson we reached the result based on the burden of production. We explained: “Simply put, Johnson never properly rai sed an affirmative defense under Section 921(a)(33)(B)(ii) because he did not allege any of the conditions set forthby that section that would exempt him from having committed a ‘misdemeanor crime of domestic violence,’ so the government had no obligation to prove that that exception does not apply.” Johnson
, 981 F.3d at 1190 n.15. The statement about the burden of persuasion we repeated from Laroche played no role in Johnson and was dicta in that case, as it had been in Laroche

. It was, to be sure, twic e told dicta, but as we have explained before, “twice told dicta is still dicta.” United States v. Maung , 320 F.3d 1305, 1308 (11th Cir. 2003) ; see also United States v. Hunter , 172 F.3d 1307, 1310 n.1 (11th Cir. 1999) (Carnes, J., concurring) (“[T]hat ear lier language is itself dicta insofar as the present issue is concerned

. . . . T wo layers of dicta cannot do what one does not

— bind a later panel.”). Nothing in Laroche or Johnson prevents us from holding, as we do: the defendant has the burden of persu asion on the § 921(a)(33)(B)(i)(II)(bb) defense. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 31 of 3832 Opinion of the Court 20

- 11877 With the burdens of production and persuasion allocated, we can now answer this appeal’s ultimate question: whether Shamsid

- Deen established that the § 921(a)(33)(B)(i)(II)(bb) exception applies to his 2014 Georgia domestic violence battery conviction and established that he did not “knowingly and intelligently waive [] the right to have th e case tried by a jury

. ”
T he district court implicitly concluded that Shamsid

- Deen carried his burden of production . Although it didn’t explain its reasoning for that con clusion, we agree that by introducing the double

- sided form ( which explained his right to counsel and his plea options on separate sides of the same document) Shamsid

- Deen
met t his “minimal burden

. ” See Kloess , 251 F.3d at 948

. The real dispute is about whether he carried his burden of persuasion on the issue of the lack of a knowing and intelligent jury waiver back in
2014 . Shamsid

- Deen and the district court believe he did carry that burden , the government believes he did not , and we believe the g overnment has the stronger side of th e argument. The focus of both parties’ arguments is the double

- sided form that Shamsid

- Deen read and signed before he received a bench trial and was convicted in the Georgia court

. He signed the right

- to

- counsel side of the form acknowledging : “I understand an attorney has education and experience concerning . . . how to select a jury if I desire a jury trial

. ” Doc. 70

- 2 (emphasis added). That statement and acknowledgement would have been pointless if Shamsid

- Deen co uld not have had a jury trial. Even more directly on point , he signed t he plea side of the form acknowledging : “I am USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 32 of 3820

- 11877 Opinion of the Court 33 fully aware that upon a not guilty plea, I have the right to a trial, either before a jury or the Court

. . . . ” Doc. 70

- 3 (emphasis added). Shamsid

- Deen pleaded guilty before a state court judge who signed a certification finding that “any waiver of rights is done with a full understanding of those rights.” Id. On the other hand, the plea form did not contain any place for Shamsid

- Deen to indicate that he wanted to plead not guilty and request a jury trial. Instead, the form ’s alternative to initialing the “Guilty Plea” option was a “Not Guilty Plea” option, which stated: “I plead NOT GUILTY to the charge(s) against me and r equest a non jury trial. I knowingly and voluntarily waive (give up) my right to a trial before a jury . . . who would hear the evidence and law and decide if I am guilty or not guilty. I want my case to be heard and decided by the Judge acting without a j ury.” Id. So the right

- to

- counsel side of the form told Shamsid

- Deen that an attorney
, if he elected to have one (which he did) , would know how to select a jury if Shamsid

- Deen wanted a jury trial. And the fourth sentence from the top of the plea side of the form contained an acknowledgment that he was fully aware that if he pleaded not guilty he had the right to a trial before a jury. Yet the

same plea form did not contain any space to initial that would have let Shamsid

- Deen plead not guilty, as he did, without indicating that he was waiving his right to a jury trial. The forms alone are ambiguous. But there is more evidence than just the forms. There is evidence in the record of the state court bench tria l that support s a USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 33 of 3834 Opinion of the Court 20

- 11877

conclusion that Shamsid

- Deen’s waiver of a jury trial was done knowingly and intelligently. Specifically, a fter hearing from the prosecutor that Shamsid

- Deen “wishe[d] to plead not guilty . . . and proceed with his attorney . . . and have a non

- jury trial,” the judge who presided over the bench trial asked: “Mr. Shamsid

- Deen, is that what you want to do?” If for any reason proceeding without a jury was not what Shamsid

- Deen wanted to do, all he had to do was say no. Instead he answered : “Yes, sir.” 2
The reason Shams id

- Deen wanted to waive a jury i s apparent from the statements his lawyer made to the state court judge just before sentencing . After Shamsid

- Deen was convicted in the state court bench trial
, his lawyer argued for a lenient sentence in part by explaining to the judge that they (his lawyer had said “we”) deliberately chose a bench trial so that they wouldn’t “waste jurors’ time

. ” They made that choice to try to avoid Shamsid

- Deen getting a harsher sentence

— one that included incarceration

— if he were fou nd guilty. The experienced counsel referred to that as avoiding a “trial tax.” And the strategy worked : t he trial tax was avoided. A lthough Shamsid

- Deen was sentenced to 12 months jail time, the state court judge
, who had not had to spend the extra time and go to the additional trouble of presiding over a jury trial,

2 The district court viewed Shamsid

- Deen’s response as “simply confirm[ing] the executed form,” but the bench trial judge didn’t frame his question to Shamsid

- Deen by reference to the form. The judge didn’t ask Shamsid

- Deen what the form he had signed said but instead whether he wanted to proceed with a bench trial. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 34 of 3820

- 11877 Opinion of the Court 35

allowed him to serve all of his sentence on probation , as Shamsid

Deen’s lawyer had requested

. The district court viewed the jury waiver strategy as the strategic choice of the lawyer alone. But waiving a jury trial is a decision that must be made by the defendant personally; it is not a tactical decision that his lawyer can make for him. See, e.g. , Winters v. Cook , 489 F.2d 174, 179 (5th Cir. 1973) (noting that among the “inherently persona l fundamental right[s] that

. . . can be waived only by the defendant and not by his attorney” is the “the right

to waive trial by jury”); United States v. Spiegel , 604 F.2d 961, 96 5 n.9 (5th Cir. 1979) (noting that a lawyer’s ability to waive the right to a twelve

- person jury “in no way suggests that counsel may waive the right to a Jury trial for their clients”); United States v. Stewart , 700 F.2d 702, 704 (11th Cir. 1983). W e assume , ab sent evidence to the contrary, that lawyers fulfill their professional responsibilities and do not usurp decisions that belong to their clients

. Cf. Chandler v. United States , 218 F.3d 1305, 1324 (11th Cir. 2000) (en banc) (“[G]iven the absence of evidence in the record, we must assume counsel carried out his professional responsibility and discussed mitigation with his client.”). For that reason , we conclude that Shamsid

- Deen’s lawyer’s statement in court that they deliberately chose a bench trial reflecte d a decision Shamsid

- Deen made
, or at least consented to, after advice from his lawyer about the possible risks of a jury trial.
Our conclusion is bolstered by evidence in the record about the state court’s general procedures, which rely on lawyers to USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 35 of 3836 Opinion of the Court 20

- 11877

ad vise the clients they represent about choos ing a bench or jury trial. U nder those state court procedures, the default is that a criminal case is set for a jury trial unless the defendant decides to plead guilty or to have a bench trial. That
, too , is evi dence that Shamsid

Deen knowingly and intelligently decided to waive a jury trial. We disagree with t he district court ’s statement that there was “no evidence” that Shamsid

- Deen understood he had the right to a jury trial or that he knowingly and intellig ently waived that right. T here is at least some evidence going both ways
, and, if anything, the evidence showing a knowing and intelligent wavier is stronger than that indicating the absence of one

. When the evidence is unclear or evenly balanced
, or the inferences that can be drawn from it are ambiguous, the party with the burden of persuasion loses. Schaffer ex rel. Schaffer v. Weast
,546 U.S. 49, 56 (2005) (explaining that the term “burden of persuasion” means that the party with the burden “loses if the evidence is closely balanced”); Iriele , 977 F.3d at 1177 ( noting that a “tie goes to the” party who does not bear the burden of persuasion) ; Beeman v. United States , 871 F.3d 1215, 1225 (11th Cir. 2017) ( noting that if the fact finder “ is left uncertai n, the party with the burden loses ” ) (quotation marks omitted) ; Rodriguez , 398 F.3d at 1300 ; Romine v. Head , 253 F.3d 1349, 1357 (11th Cir. 2001) (“Where, as here, the evidence does not clearly explain what happened
, . . . the party with the burden loses.” ). The burden of persuasion matters
, and, as we have explained, the party burdened with the burden is Shamsid

Deen. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 36 of 3820

- 11877 Opinion of the Court 37

I II

. Conclusion

We reverse th e district court’s order granting Shamsid

Deen’s motion to suppress evidence of his 2014 conviction for misde meanor battery under the Georgia Family Violence Act , and weremand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 37 of 3820

- 11877 P RYOR , J., Concurring 1

J ILL P RYOR , Circuit Judge, Concurring in the judgment: I concur in the result only. USCA11 Case: 20-11877 Document: 42-1 Date Filed: 03/06/2023 Page: 38 of 38