United States Court of Appeals

For the First Circuit

Nos. 05-2065

05-2129

UNITED STATES OF AMERICA,

Appellant/Cross-Appellee,

v.

JOHN FRECHETTE,

Defendant, Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lynch and Howard, Circuit Judges.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D.

Silsby, United States Attorney, was on brief, for appellant/crossappellee.

John Paul DeGrinney, with whom DeGrinney Law Offices was on

brief, for appellee/cross-appellant.

William S. Harwood, Valerie A. Wright, Verrill Dana, LLP,

Dennis Henigan, Elizabeth Haile, and Brady Center to Prevent Gun

Violence on brief for Brady Center to Prevent Gun Violence,

Southern Maine Chapter of Million Mom March, Maine Citizens Against

Handgun Violence, Maine Coalition to End Domestic Violence,

National Council of Women's Organizations, Chief Mathew Baker,

Chief Timothy Burton, Sheriff Mark Dion, Chief Edward Googins,

Chief William Welch, and Chief Don Winslow, amici curiae.

August 2, 2006
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LYNCH, Circuit Judge. On October 16, 1996, John

Frechette was convicted in state court in Lewiston, Maine, after

pleading no contest to a charge that he had assaulted his then

live-in girlfriend. This offense was a misdemeanor, see Me. Rev.

Stat. Ann. tit. 17-A, § 207, and Frechette was sentenced to a jail

term of thirty days, which was immediately suspended, and to a oneyear term of probation.

In 1996 Congress passed, as part of the Omnibus

Consolidated Appropriations Act of 1997, the Lautenberg Amendment

to the Gun Control Act of 1968 ("the Amendment"), Pub. L. No. 104-

208, § 658, 110 Stat. 3009, 3009-371 to -372 (1996) (codified as

amended at 18 U.S.C. §§ 921, 922, 925). See United States v.

Hartsock, 347 F.3d 1, 4-5 (1st Cir. 2003). The Amendment was

intended, in part, to address the growing national recognition of

the importance of deterring domestic violence. See id. at 5

(citing sources). It expressed Congress's recognition that

firearms were frequently used in domestic violence attacks. See

id. 

Congress also recognized that there was a loophole in the

law, which it moved to close. Although earlier law had restricted

the possession of firearms by those convicted of domestic violence

felonies, no such restrictions existed as to possession of firearms

by persons convicted of domestic violence misdemeanors. See id.

The Amendment eliminated this disparity. Under 18 U.S.C.
18 U.S.C. § 924(a) sets out the penalties for, inter 1

alia, the knowing violation of § 922(g). 

-3-

§ 922(g)(9), it is now unlawful for a person "who has been

convicted in any court of a misdemeanor crime of domestic violence"

to, inter alia, "possess in or affecting commerce, any firearm or

ammunition." The statute defines "misdemeanor crime of domestic

violence" as an offense that: 

(i) is a misdemeanor under Federal, State, or

Tribal law; and

(ii) 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 a spouse, parent, or guardian, or by

a person similarly situated to a spouse,

parent, or guardian of the victim.

18 U.S.C. § 921(a)(33)(A). This provision is subject to some

affirmative defenses, two of which are described below and are

involved in this appeal.

On February 9, 2005, a federal grand jury returned a

superseding indictment charging Frechette with having "knowingly

possessed in and affecting commerce a firearm, specifically a

Phoenix Arms, .22 caliber pistol," in violation of 18 U.S.C.

§§ 922(g)(9) and 924(a). There seems to be little dispute 1

Frechette had a firearm; his main defense was that his misdemeanor
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domestic violence conviction did not count as a predicate offense

within the meaning of the statute.

Frechette did not argue that his 1996 Maine offense was

not a "misdemeanor crime of domestic violence," as defined at 18

U.S.C. § 921(a)(33)(A). Instead, he moved to dismiss the

indictment on the basis that the 1996 offense did not count as a

"conviction" within the meaning of 18 U.S.C. § 921(a)(33)(B)(i)(I)

and (II), because it was secured without his having "knowingly and

intelligently waived [both] the right to counsel," 18 U.S.C.

§ 921(a)(33)(B)(i)(I), and "the right to have the case tried by a

jury," id. § 921(a)(33)(B)(i)(II). 

The text of the affirmative defenses Frechette invoked

provides:

(i) A person shall not be considered to have

been convicted of [a misdemeanor crime of

domestic violence] for purposes of this

chapter, unless --

(I) the person was represented by

counsel in the case, or knowingly and

intelligently waived the right to

counsel in the case; and

(II) in the case of a prosecution for

an offense described in this paragraph

for which a person was entitled to a

jury trial in the jurisdiction in which

the case was tried, either

(aa) the case was tried by a jury,

or

(bb) the person knowingly and

intelligently waived the right to
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have the case tried by a jury, by

guilty plea or otherwise.

Id. § 921(a)(33)(B)(i).

The statute also sets forth another affirmative defense,

which is set out just below those already described. See id.

§ 921(a)(33)(B)(ii). That defense is not at issue here, but is

pertinent to understanding the provisions that are at issue:

(ii) A person shall not be considered to have

been convicted of such an offense for purposes

of this chapter if the conviction has been

expunged or set aside, or is an offense for

which the person has been pardoned or has had

civil rights restored (if the law of the

applicable jurisdiction provides for the loss

of civil rights under such an offense) unless

the pardon, expungement, or restoration of

civil rights expressly provides that the

person may not ship, transport, possess, or

receive firearms.

Id.

In response to Frechette's motion to dismiss the

indictment, the government entered into evidence a transcript of

Frechette's October 16, 1996 state-court appearance on the assault

charge. The transcript showed that the state court conducted a

"mass arraignment," in which it brought a large group of defendants

into the courtroom and advised them collectively about their

rights. Frechette does not dispute that he was among that group of

defendants.

Among other things, the court informed Frechette and the

others that they had the right to a jury trial:
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Now here are your rights. Since you're here

on a criminal charge, I want to advise you,

first and foremost, that you're all presumed

innocent until proven guilty. Under our

system of justice, and the state and federal

constitution[s], you are entitled to a trial

by judge or jury. You are entitled to have

the State, and by the State, I mean the law

enforcement agency that has arrested you and

charged you with a crime, to come to court and

prove their case to a judge or jury. . . . 

The court also informed the group of defendants that each

of them had the right to counsel:

The third right and the last right that I want

to explain to everybody is your right to an

attorney. If any of you are here and there is

a probability or a possibility that you could

be facing jail if you are convicted of the

crime that you are being charged with here, I

would advise you to get a lawyer or get legal

advice. Also, if you can't afford a lawyer,

depending on your financial circumstances, you

can ask me to appoint a lawyer at the State

expense for you. Here's how that happens.

You let me know. I'm obviously going to let

you know how serious the offense is and you

are going to be asked about whether you are

going to represent yourself, hire a lawyer, or

ask for a court appointed lawyer. If you ask

for a court appointed lawyer, you're gonna be

screened this morning by a financial screening

officer who will interview you and decide

whether you meet the guidelines for a court

appointed lawyer. If you meet the guidelines,

a lawyer will be appointed who practices

within our jurisdiction here. . . . If you

don't qualify, that means you will have to

hire your own lawyer or represent yourself.

Please understand the case doesn't go away

because you don't get a court appointed

lawyer. You still have to face the

charges. . . . 
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Finally, the court explained to the group that each

defendant could enter one of three pleas, and that each would waive

the rights to a trial and to counsel by pleading "guilty" or "no

contest":

I am going ask you to enter one of three

pleas: Guilty, Not Guilty, No Contest. Guilty

means what it says. It means that you will end

up saying "I'm Guilty" - you admit the charge

and we will impose a sentence this morning.

If you plead Not Guilty, you are asking for a

trial and I will give you a date for your

trial. If you plead No Contest that means

that you don't want to plead Guilty, but you

don't want a trial and you want to dispose of

the matter and you want to get rid of it

today. There is still a conviction. In other

words, I make a finding of guilt. The only

difference is that you haven't pled guilty,

you're still convicted without a trial. Those

of you who plead Guilty and those of you who

plead No Contest waive your right to a trial.

Obviously, you're not going to have a trial.

You waive your right also to get the advice of

a lawyer, so please understand those

consequences before you decide to plead

Guilty. . . .

. . . .

Now if you plead Not Guilty you'll get a date

for trial - I told you that. Then we're going

to hand you three pieces of paper . . . .

Page One is your ticket to a jury trial. Since

it's a criminal offense, you have a right to

say, "I want a jury trial instead of a judge

trial." The reason you're in district court

is because all of you are here on Class D and

E crimes. . . . If you want a jury trial, you

take the first piece of paper that is handed

to you this morning and within three weeks of

today's date, sign it and bring it to the

clerk in the lobby. . . . If that happens,

your case is transferred across the river and

goes to the Superior Court in Auburn and
There is some confusion in the record about what happened 2

at Frechette's initial arraignment, which took place on December

13, 1995. According to the state court docket, Frechette pleaded

guilty on December 13 and the case was continued for sentencing to

November 7, 1996. However, the docket also indicates that a

hearing notice was issued to Frechette on September 3, 1996,

apparently ordering him to appear in court on October 3, 1996. He

failed to appear on that date, and a bench warrant was issued for

his arrest. He was then arrested on October 4 and brought into

court on October 16, whereupon the court stated, and Frechette did

not deny, that he had actually pleaded "not guilty" at the December

13 arraignment. 

-8-

you'll be notified by that court of the time

and date of your trial by jury. If you don't

file it within three weeks, you have to be

here on the day I give you for a trial before

a judge in this court. 

Following the mass arraignment, the court engaged in an

individual plea colloquy with Frechette. The court observed that

Frechette had already pleaded "not guilty" at his initial

appearance in state court and that he was presently before the

court on a bench warrant for not showing up for trial. The court 2

advised Frechette that he "ha[d] a right to either ask for a new

court date if you want to do so," at which point Frechette seems to

have interrupted and said "no." Frechette then indicated that he

wanted to change his plea to "no contest," and the court warned him

that by so doing, he would be waiving his "right to trial." The

court did not, however, as it had done earlier at the mass

arraignment, invoke the phrase "jury trial":

Court: All right, Mr. Frechette, you have

already pled Not Guilty. This was a bench

warrant for not showing up to your trial and
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you have a right to either ask for a new court

date if you want to do so.

Frechette: No.

Court: Do you want to change your plea?

Frechette: No contest.

Court: Do you want to change your plea to No

Contest? Do you understand by doing that you

waive your right to trial. Right?

Frechette: Yes.

In the course of the colloquy, the court also noted that

Frechette did not qualify financially for a court-appointed lawyer.

It informed Frechette that by pleading "no contest," he would be

waiving his right to counsel:

Court: Your right to the advice of a lawyer?

Does he get a court appointed lawyer? No, he

didn't qualify. Okay. Do you understand that

by pleading ["no contest"] that you waive your

right to trial and the advice of a lawyer?

All right?

Frechette: Yup.

Court: Okay. Do you want to have him waived,

please?

Court Officer: This is a waiver of counsel

I'm going to read to you[:]

"I am the person charged in this

proceeding. I am fully aware of my

right to have my attorney of my own

choosing or, if I am unable to afford

an attorney, to have an attorney

appointed by the court at public

expense. I do not desire an attorney

and hereby waive my right to be

represented by an attorney."
Frechette initially challenged the accuracy of the 3

transcript. But he made clear to the district court at oral

argument on his motion to dismiss that he was withdrawing his

objection. 

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Do you understand what I read to you, sir?

Having read that to you, you can sign right

here, please.

Frechette does not dispute that he signed the waiver after this

exchange.

Frechette conceded that the transcript provided by the

government was "[a]n accurate transcript of the plea colloquy and

advisement of rights for the predicate offense." Nevertheless, as 3

part of his motion to dismiss the indictment, he requested an

evidentiary hearing, at which he sought to present evidence, inter

alia, of his educational background and lack of sophistication

about the criminal justice system, the underlying facts of his

predicate domestic violence offense, his lack of recall about being

notified by the state court of his rights to counsel and to a jury

trial, and his financial circumstances at the time of his "no

contest" plea, which allegedly precluded him from securing paid

counsel. The magistrate judge, without ruling on Frechette's

motion to dismiss the indictment, rejected his motion for an

evidentiary hearing in a memorandum decision, to which Frechette

timely objected.

The district court subsequently allowed for oral

argument, both on the magistrate judge's order denying Frechette an
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evidentiary hearing and on Frechette's motion to dismiss the

indictment. In an opinion issued on June 10, 2005, the district

court overruled Frechette's objection to the magistrate judge's

order denying him an evidentiary hearing, but allowed his motion to

dismiss. See United States v. Frechette, 372 F. Supp. 2d 669, 676

(D. Me. 2005). The court entered a judgment of discharge, pursuant

to Rule 32(k)(1) of the Federal Rules of Criminal Procedure, on

June 13, 2005.

In its June 10 opinion, the district court held: (1) that

the question of whether Frechette "knowingly and intelligently

waived the right to have the case tried by a jury, by guilty plea

or otherwise" under 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb), was to be

determined by the law of the state of the predicate conviction and

not by federal law, see Frechette, 372 F. Supp. 2d at 674; (2) that

if federal constitutional law were the appropriate standard, then

the waiver of jury trial would be valid, see id. at 675, but that

under the law of Maine, specifically State v. Rowell, 468 A.2d 1005

(Me. 1983), the waiver was invalid, see Frechette, 372 F. Supp. 2d

at 675; (3) that Frechette was not entitled to an evidentiary

hearing, see id. at 673; and (4) that Frechette had not shown that

his waiver of counsel in the predicate state proceeding was invalid

under 18 U.S.C. § 921(a)(33)(B)(i)(I), see Frechette, 372 F. Supp.

2d at 673. Each side appeals from the issue(s) it lost.
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The key question on appeal is whether the jury waiver

question is determined by reference to state law standards or to

the federal constitutional standard for waiver. We review this

question of statutory interpretation de novo. United States v.

Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir. 2003).

We hold that the validity of a waiver of jury trial for

purposes of 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb) is to be evaluated

under the federal constitutional standard and that Frechette

validly waived that right. We also hold that the district court

was correct to conclude that Frechette was not entitled to an

evidentiary hearing and that Frechette validly waived his right to

counsel. As a result, we reverse the district court solely on the

question of whether Frechette validly waived his right to a jury

trial, vacate the order of dismissal, and remand for proceedings

consistent with this opinion.

I.

Interpretation of Statutory Provision

Regarding Waiver of Jury Trial

Our task is to interpret the federal statute. A bit more

precision is in order. The statute does define the standard for

the waiver of the jury trial right: the standard is whether the

person "knowingly and intelligently" waived the right to trial by

jury. The question is whether the phrase "knowingly and

intelligently" is to be measured by federal or state standards.
Because we hold that the federal constitutional standard, 4

and not state standards, applies, it is unnecessary for us to

examine whether, as the government argues, the district court erred

in construing Maine law, as articulated in Rowell, as providing a

standard more favorable to defendants than that provided by the

federal Constitution.

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The question becomes meaningful in situations in which

the standards turn out to be different. We can think of at least

two such situations. The first is when the federal constitutional

standard has been met, but state law, applying a more defendantfriendly standard of "knowingly and intelligently," has not been

met. The district court thought that was the situation here.4

The second (at least hypothetical) situation is one in

which the federal constitutional standard has not been met, but a

less defendant-friendly state standard for waiver has been met.

State law, after all, may give a defendant a right to a jury trial

where one is not mandated by the Sixth Amendment, see Duncan v.

Louisiana, 391 U.S. 145, 159-61 (1968) (drawing a distinction

between "serious crimes" and "petty offenses," and holding that the

Sixth Amendment entitles defendants to a jury trial only for

serious crimes); see also Baldwin v. New York, 399 U.S. 66, 69

(1970) (holding that "no offense can be deemed 'petty' for purposes

of the right to trial by jury where imprisonment for more than six

months is authorized"), and where a state has chosen to do so, it

is conceivable that it might allow a defendant to waive the right

by some procedure that is less stringent than that required under
We make no comment as to the legality of such a practice. 5

We note only that at least one state has argued before its state

supreme court that this practice would be permissible under the

federal Constitution. See Mills v. Municipal Court, 515 P.2d 273,

2810 n.8 (Cal. 1973) (en banc) (noting the government's argument

"that the trial record need only show that a defendant was aware

of, and voluntarily and knowingly waived, his right to jury trial

in those misdemeanor proceedings which are 'non-petty' under

federal standards"; opining that "this contention may accurately

reflect the demands of the federal Constitution"; but rejecting the

government's position "pursuant to our supervisory authority over

state criminal procedures").

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federal law for waiving a constitutional right to a jury trial for

serious crimes.5

Frechette's argument would have this court apply state

law standards for what constitutes "knowing[] and intelligent[]"

waiver, regardless of whether the particular state law being

invoked affords greater or lesser protection to defendants than

would the federal constitutional standard. Under his theory,

Congress would have to have intended for there not to be one

national standard for "knowing[] and intelligent[]" waiver, but a

large number of state-created standards, some of which may be more

defendant-friendly and others of which may be more defendanthostile. 

The government's position is that the statute requires

the application of a uniform federal standard. Use of normal

principles of statutory interpretation favors this reading,

although the text is not so clear as to eliminate all questions.

Furthermore, Frechette argues that the because the statute does at
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times incorporate state standards, national uniformity in the

federal statutory scheme to control domestic violence is not the

consistent guiding principle throughout the statute. Still, we

agree with the government.

First, when a federal statutory term such as "knowingly

and intelligently" is used, ordinarily the interpretation is

supplied by federal law, not state law, absent some express

language to the contrary. See Jerome v. United States, 318 U.S.

101, 104 (1943) ("[W]e must generally assume, in the absence of a

plain indication to the contrary, that Congress when it enacts a

statute is not making the application of the federal act dependent

on state law."); see also Dickerson v. New Banner Inst., Inc., 460

U.S. 103, 119-20 (1983) (noting that "'in the absence of a plain

indication to the contrary, . . . it is to be assumed when Congress

enacts a statute that it does not intend to make its application

dependent on state law[,]'" because "the application of federal

legislation is nationwide and at times the federal program would be

impaired if state law were to control" (quoting NLRB v. Natural Gas

Util. Dist., 402 U.S. 600, 603 (1971))), superseded by statute,

Firearm Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449

(1986), as recognized in Molina v. INS, 981 F.2d 14, 22 (1st Cir.

1992); United States v. Ayala-Gomez, 255 F.3d 1314, 1319 (11th Cir.

2001) (per curiam) ("Words in federal statutes reflect federal
-16-

understandings, absent an explicit statement to the contrary, even

if a state uses the word differently.").

Second, the very phrase "knowingly and intelligently" can

easily be read as a shorthand encapsulation of the federal

constitutional standard. See, e.g., Patton v. United States, 281

U.S. 276, 312 (1930) ("Not only must the right of the accused to a

trial by a constitutional jury be jealously preserved, but the

maintenance of the jury as a fact-finding body in criminal cases is

of such importance and has such a place in our traditions, that,

before any waiver can become effective, the consent of government

counsel and the sanction of the court must be had, in addition to

the express and intelligent consent of the defendant."), abrogated

on other grounds by Williams v. Florida, 399 U.S. 78 (1970); accord

United States v. Leja, 448 F.3d 86, 96 (1st Cir. 2006) (upholding

validity of jury trial waiver, so long as it was "knowingly,

voluntarily, and intelligently" made); cf. Edwards v. Arizona, 451

U.S. 477, 482 (1981) (noting that "waivers of counsel must not only

be voluntary, but must also constitute a knowing and intelligent

relinquishment or abandonment of a known right or privilege");

Boykin v. Alabama, 395 U.S. 238, 242 (1969) (requiring that a plea

be "intelligent and voluntary"); Johnson v. Zerbst, 304 U.S. 458,

464 (1938).

Third, the structure of the statute favors the

government's construction that the jury waiver question is to be
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analyzed under the federal constitutional standard. The

affirmative defense under discussion has two subsections, (I) and

(II): 

(i) A person shall not be considered to have

been convicted of [a misdemeanor crime of

domestic violence] for purposes of this

chapter unless --

(I) the person was represented by counsel

in the case, or knowingly and

intelligently waived the right to counsel

in the case; and

(II) in the case of a prosecution for an

offense described in this paragraph for

which a person was entitled to a jury

trial in the jurisdiction in which the

case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and

intelligently waived the right to

have the case tried by a jury, by

guilty plea or otherwise.

18 U.S.C. § 921(a)(33)(B)(i). The parties agree that in subsection

(I), which deals with the right to counsel, the term "knowingly and

intelligently waived" is to be analyzed under the federal

constitutional standard. Only in subsection (II), which deals with

the jury trial right, does Frechette argue that the very same term

is to be analyzed under state law. There are two prongs to his

argument. First, he points out that subsection (II) refers to "the

jurisdiction in which the case was tried" to determine whether

there was any jury trial right at all. Second, he notes that the

second affirmative defense to 18 U.S.C. § 922(g)(9), set out in the
-18-

paragraph immediately below the affirmative defense under

discussion, excludes as predicate convictions those offenses for

which the person "has had civil rights restored (if the law of the

applicable jurisdiction provides for the loss of civil rights under

[such an] offense)." 18 U.S.C. § 921(a)(33)(B)(ii). The

reasoning, propounded by Frechette and employed by the district

court, is that if Congress explicitly referred to the law of the

jurisdiction in which the offense was committed to determine

whether there is a jury trial right at all and to determine whether

there is a loss of civil rights for a certain offense, Congress

implicitly meant all issues concerning the right to a jury trial,

including waiver, to be resolved by looking to state standards. On

balance, we think this approach is wrong.

On its face, the separate restoration of civil rights

provision itself has nothing to do with the right to a jury trial.

That Congress referred to state law to define whether

there was any jury trial right at all has an independent rationale.

As noted earlier, states may provide jury trials even when they are

not compelled by the federal Constitution to do so. It is easier

to administer the federal statute by simply accepting the states'

choice to give or not to give a jury trial; that is a background

fact against which the whole provision operates.

But, as this case demonstrates, it is not easier to

administer the federal statute by then looking to state law to
Both parties contended at oral argument that Maine law 6

clearly favors their respective positions. 

Despite the government's extensive use of legislative 7

history to support its position, we see no need to go down this

road to resolve the issue.

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determine what is meant by a "knowing[] and intelligent[]" waiver

of the right to a jury trial. A single, well-understood federal 6

standard for waiver of jury trial is clearly easier for federal

courts to apply than would be a patchwork of conflicting and

changing state laws. See Jerome, 318 U.S. at 104 (noting "the

desirability of uniformity in application" of federal criminal

laws); cf. Dickerson, 460 U.S. at 111-12 (holding that "[w]hether

one has been 'convicted' within the language of the gun control

statutes is necessarily . . . a question of federal, not state,

law, despite the fact that the predicate offense and its punishment

are defined by the law of the [s]tate").

In the statute, both references to state law (in relation

to whether a jury is available and to whether there is a loss of

civil rights) are isolated structurally and grammatically from the

subsection, § 921(a)(33)(B)(i)(II)(bb), setting forth the

requirement of a "knowing[] and intelligent[] waive[r]" of the jury

trial right. It is tempting to credit this arrangement as evidence

that Congress knew how to direct attention to state law standards

when it so desired and that it purposefully did not do so as to

waiver of the jury trial right. See Barnhart v. Sigmon Coal Co., 7
-20-

534 U.S. 438, 452 (2002) ("[I]t is a general principle of statutory

construction that when 'Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.'" (quoting

Russello v. United States, 464 U.S. 16, 23 (1983))).

The text, while not entirely plain, is more consistent

with an intent by Congress that the term "knowingly and

intelligently" be interpreted by the federal constitutional

standard, and not by state standards. We have already mentioned

that federal statutes are usually defined by federal law, that

there is no express reference to state law in this particular

provision where one might otherwise expect one, and that the

statute is more easily and better administered by use of one

standard -- and a familiar one at that. The view that state law

governs the content of "knowing[] and intelligent[] waive[r]" of

the jury trial right also, as we have described, raises the risk of

lowering protections for defendants in situations in which state

law standards for waiver are more relaxed than those set forth by

the federal constitutional standard. That is all the more reason

to give the statute its most natural reading, that the "knowing[]

and intelligent[]" standard is to be determined by the federal

constitutional standard. This appears to be the practice of other

circuits. See United States v. Bethurum, 343 F.3d 712, 718 (5th
-21-

Cir. 2003) (applying, without discussion, federal constitutional

standard to the question of whether a jury trial waiver was

"knowing[] and intelligent[]" within the meaning of 18 U.S.C.

§ 921(a)(33)(B)(i)(II)(bb)); United States v. Jennings, 323 F.3d

263, 275-76 (4th Cir. 2003) (same).

II.

Waiver of Rights to Jury Trial

and to Counsel Under Federal Law

We analyze, under the federal standard, whether Frechette

"knowingly and intelligently" waived his rights to jury trial and

to counsel. The district court's alternative holding was that if

the federal standard were applied, then Frechette's waiver of jury

trial was valid. The court also held that Frechette's waiver of

his right to counsel was valid. "We review factual findings by the

district court for clear error" and "the determination of whether

a waiver of rights was voluntary de novo." United States v.

Bezanson-Perkins, 390 F.3d 34, 39 (1st Cir. 2004).

A. Waiver of Right to Jury Trial

Frechette's underlying state conviction was a "Class D"

misdemeanor, see Me. Rev. Stat. Ann. tit. 17-A, § 207, punishable

by a term of imprisonment of up to one year under Maine law, id.

§ 1252(2)(D). The Maine Constitution, like the federal

Constitution, provides the right to a jury trial for such an

offense. See State v. Sklar, 317 A.2d 160, 165 (Me. 1974)

(construing the Maine Constitution, see Me. Const. art. I, § 6, to
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guarantee the right to a jury trial in all criminal prosecutions);

see also Baldwin, 399 U.S. at 69 (holding that the Sixth Amendment

guarantees the right to a jury trial in the case of any offense for

which imprisonment for more than six months is authorized). A

defendant, however, may waive the jury trial right. Adams v.

United States ex rel. McCann, 317 U.S. 269, 275 (1942). 

"[W]hether or not there is an intelligent, competent,

self-protecting waiver of jury trial by an accused must depend upon

the unique circumstances of each case." Id. at 278. "In making

this determination, courts may consider a variety of factors

showing that a waiver is validly given," including, but not limited

to, "the extent of the particular defendant's ability to understand

courtroom discussions regarding jury waiver." Leja, 448 F.3d at

93-94.

Here, the state court clearly advised all the defendants

present at the mass arraignment that each was "entitled to a trial

by a judge or jury," that each could exercise the right to a jury

trial by submitting a written request to the clerk within three

weeks, and that each would be giving up the right to any type of

trial by pleading "no contest" or "guilty." Frechette conceded

that he was present at the mass arraignment, and the district court

found that "he did hear the mass warning and nevertheless told the

[state court] judge that he wanted to plead ['no contest']."

Frechette, 372 F. Supp. 2d at 675-76.
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On appeal, Frechette points to his limited education and

argues that "there wasn't even an indication that [he] understood

either the facts or the law applicable"; however, nothing in the

record shows that he did not hear or understand the state court's

instructions. There was thus no clear error in the district

court's finding to the contrary.

That the state court did not specifically say the words

"jury trial" to him during his individual colloquy, after

repeatedly using it during the mass arraignment, does not render

his waiver invalid, so long as the waiver was knowingly and

intelligently made. See Leja, 448 F.3d at 93 (holding that even

"the absence of colloquy by itself does not require reversal where

the evidence establishes that the defendant's waiver [of jury

trial] was knowingly and intelligently made" (emphasis added)).

Based on this record, we conclude that Frechette "knowingly and

intelligently waived the right to have the case tried by a jury"

within the meaning of 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb).

B. Waiver of Right to Counsel

This leaves Frechette's cross-appeal, in which he argues

that his domestic violence misdemeanor does not qualify as a

predicate conviction because he was deprived of his right to

counsel.

"The Sixth Amendment safeguards to an accused who faces

incarceration the right to counsel at all critical stages of the
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criminal process. The entry of a guilty plea, whether to a

misdemeanor or a felony charge, ranks as a 'critical stage' at

which the right to counsel adheres." Iowa v. Tovar, 541 U.S. 77,

80-81 (2004) (citations omitted). The right to counsel, too, can

be waived. Id. at 81.

"Waiver of the right to counsel, as of constitutional

rights in the criminal process generally, must be a 'knowing,

intelligent ac[t] done with sufficient awareness of the relevant

circumstances.'" Id. (quoting Brady v. United States, 397 U.S.

742, 748 (1970)). "The constitutional requirement is satisfied

when the trial court informs the accused of the nature of the

charges against him, of his right to be counseled regarding his

plea, and of the range of allowable punishments attendant upon the

entry of a guilty plea." Id. The defendant invoking the

affirmative defense under 18 U.S.C. § 921(a)(33)(B)(i)(I) bears the

burdens of production and persuasion to show that he did not

knowingly and intelligently waive the right to counsel in the

predicate misdemeanor domestic violence offense. Hartsock, 347

F.3d at 9.

The district court found that Frechette had conceded that

the state court advised him of his right to counsel at his October

16, 1996 appearance. Frechette, 372 F. Supp. 2d at 671. At the

mass arraignment, the state court informed the defendants that each

had the right to an attorney, and that if "there is a probability
The signed waiver is not part of the record; however, 8

Frechette does not dispute that he signed it.

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or a possibility that you could be facing jail if you are convicted

of the crime that you are being charged with here, I would advise

you to get a lawyer or get legal advice." The court also told the

defendants that each could request court-appointed counsel,

provided that each qualified financially. Subsequently, in the

individual plea colloquy, the court inquired into Frechette's

eligibility for a court-appointed lawyer, noted that he did not so

qualify, and warned him personally that by pleading "no contest,"

he would "waive [his] right to . . . the advice of a lawyer."

Frechette indicated verbally that he understood, and he also signed

a written statement to that effect, which was also read aloud to

him. Frechette "kn[ew] what he [was] doing and [made] his choice 8

. . . with eyes open." Adams, 317 U.S. at 279.

Frechette argues, however, that his choice was

effectively made with his hands tied and so was involuntary. He

contends that the state court erred in determining that he did not

qualify financially for court-appointed representation. He points

to the state court docket, which shows that in his initial

appearance on December 13, 1995, he had requested court-appointed

counsel, but his motion was denied because his "income exceed[ed]

guidelines for court appointment." He alleges that his financial

circumstances changed for the worse after his initial appearance,
Although Frechette indicated in his request for an 9

evidentiary hearing that he intended to present evidence that "[h]e

does not recall being advised of his right to a trial by jury,"

his cross-appeal focuses solely on whether the district court erred

in not allowing him an evidentiary hearing on the waiver of counsel

issue. To the extent that he does raise an argument concerning the

appropriateness of an evidentiary hearing with respect to the jury

trial issue, it is waived for lack of appellate development. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.").

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such that at the time of his "no contest" plea in October 1996, he

should have been deemed eligible for court-appointed counsel. 

He thus asked the federal district court, almost ten

years after the fact, to make an independent examination of his

financial circumstances at the time of his "no contest" plea to

determine whether he was, for all practical purposes, denied his

right to counsel because he was unable to afford one.9

The district court denied his request to reopen the issue

of his financial eligibility, and was correct in doing so. As

always, the decision to convene an evidentiary hearing is at the

discretion of the trial judge, reversible only if that discretion

was abused. See United States v. Panitz, 907 F.2d 1267, 1274 (1st

Cir. 1990). No such abuse took place here.

Frechette never challenged the state court's

determination, either at his December 1995 appearance or at his

October 1996 plea colloquy, that he was not eligible for

court-appointed counsel. His financial information as of the time

of the domestic violence conviction is not in the current record,
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and Frechette's proffer of such information includes only his

hourly wage -- which, the district court observed, "provides no

information about other assets that might have been available to

[him] in 1996" or "about the 1996 cost of legal services in

Lewiston, Maine." Frechette, 372 F. Supp. 2d at 673. Finally, and

most importantly, the district court already had a transcript of

the plea proceedings, from which it could readily determine whether

Frechette had knowingly and intelligently waived his right to

counsel.

Nevertheless, Frechette argues that an evidentiary

hearing was required under our 2003 decision in United States v.

Hartsock, 347 F.3d 1. Frechette overreads Hartsock. In Hartsock,

we remanded to the district court for a hearing under Rule 104(a)

of the Federal Rules of Evidence, id. at 10, because the parties

did not have access to a transcript or a recording of the plea

proceedings and had agreed to allow the district court to hold a

Rule 104(a) hearing to recreate the state court record, id. at 4.

While Hartsock permits a district court to hold an evidentiary

hearing in such cases, it certainly does not compel a district

court to hold an evidentiary hearing, especially when a true and

accurate transcript of the relevant proceedings is available and is

a sufficient basis for determining whether the waiver of counsel

was knowing and intelligent. 
-28-

On the basis of the record before us, Frechette

"knowingly and intelligently waived the right to counsel," within

the meaning of 18 U.S.C. § 921(a)(33)(B)(i)(I).

III.

We reverse the district court on the question of whether

Frechette knowingly and intelligently waived his right to a jury

trial, affirm the district court's denial of Frechette's request

for an evidentiary hearing, affirm the district court's alternate

determination that under the federal constitutional standard

Frechette knowingly and intelligently waived his right to counsel,

vacate the order of dismissal, and remand for proceedings

consistent with this opinion.