Petition for Writ of Certiorari — Luis Fernando Ceja, aka Chako, Petitioner v. United States

Supreme Court briefApr 14, 2022

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______________________________________

No. ________________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

LUIS FERNANDO CEJA, PETITIONER,

vs.

UNITED STATES, RESPONDENT.

______________________________________

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

______________________________________

Petitioner, through counsel, asks leave to file the attached Petition for

Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

without prepayment of costs and to proceed in forma pauperis. Counsel was

appointed in the court of appeals under the Criminal Justice Act, 18 U.S.C. §

3006A(b). This motion is brought pursuant to Rule 39.1 of the Rules of the

Supreme Court of the United States.

Respectfully submitted,

April 14 , 2022

s/ Carlton F. Gunn

CARLTON F. GUNN

Attorney at Law

______________________________________

No. ________________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_____________________________________

LUIS FERNANDO CEJA, PETITIONER,

vs.

UNITED STATES, RESPONDENT.

__________________________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

___________________________

PETITION FOR WRIT OF CERTIORARI

______________________________________

CARLTON F. GUNN

Attorney at Law

65 North Raymond Ave., Suite 320

Pasadena, California 91103

Attorney for the Petitioner

QUESTIONS PRESENTED

Whether courts may decline to enforce the plain language of Federal Rule of

Criminal Procedure 23(a) requiring that a waiver of jury trial be in writing and

accept an oral waiver in lieu of a written waiver.

Assuming arguendo that courts may rely on an oral colloquy, whether the oral

colloquy must include – at least in the case of a defendant who is a foreign

citizen, does not speak English, and has only a minimal foreign education –

advice that the jurors will be drawn from the community and the defendant

may participate in their selection.

TABLE OF CONTENTS

PAGE

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV.

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

VI.

JURISDICTION IN THE COURTS BELOW.. . . . . . . . . . . . . . . . 3

FACTS MATERIAL TO CONSIDERATION OF THE

QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Waiver of Jury Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Conviction and Appeal... . . . . . . . . . . . . . . . . . . . . . . . . . . 4

REASONS FOR GRANTING THE PETITION. . . . . . . . . . . . . . . . . . . . 6

THE WRIT SHOULD BE GRANTED BECAUSE FEDERAL

COURTS OF APPEALS HAVE IGNORED THE PLAIN

LANGUAGE OF RULE 23(a) REQUIRING THAT A WAIVER

OF THE RIGHT TO A JURY TRIAL BE IN WRITING.. . . . . . . . 7

THE WRIT SHOULD BE GRANTED TO RESOLVE A SPLIT

IN THE LOWER COURTS ON WHETHER AN ORAL

COLLOQUY IS REQUIRED TO ACCEPT A JURY WAIVER

AND CLARIFY WHAT THAT COLLOQUY MUST

INCLUDE... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

There Is a Split in the Lower Courts on Whether a Jury

Waiver Colloquy Is Required.. . . . . . . . . . . . . . . . . . . . . . 10

There Is Confusion in the Lower Courts on What a Jury

Waiver Colloquy Must Include... . . . . . . . . . . . . . . . . . . . 12

Petitioner’s Case Is an Excellent Vehicle for Addressing

the Division and Confusion in the Lower Courts, and It Is a

Case in Which There Should Have Been a More Extensive

Inquiry.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX 1 (Court of Appeals Opinion). . . . . . . . . . . . . . . . . . . . . . . . A001

APPENDIX 2 (Order Denying Rehearing).. . . . . . . . . . . . . . . . . . . . . . . . A017

APPENDIX 3 (portions of transcript reflecting Petitioner’s jury trial

waiver). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A018

APPENDIX 4 (Appellant’s Opening Brief [relevant portions]). . . . . . . . . A032

APPENDIX 5 (Answering Brief of United States [relevant portions]). . . . A052

APPENDIX 6 (Appellant’s Reply Brief [relevant portions]). . . . . . . . . . . A083

APPENDIX 7 (Petition for Rehearing and Suggestion for Rehearing En Banc

[without duplicative attachment]). . . . . . . . . . . . . . . . . . . . . . . . . . A090

iii

TABLE OF AUTHORITIES

CASES

PAGE

Apodaca v. Oregon,

406 U.S. 404 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Ciummei v. Amaral,

493 F. Supp. 938 (D. Mass. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ciummei v. Commonwealth,

392 N.E.2d 1186 (Mass. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Davis v. State,

809 A.2d 565 (Del. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Demarest v. Manspeaker,

498 U.S. 184 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Department of Revenue of Oregon v. ACF Industries, Inc.,

510 U.S. 332 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Duncan v. Louisiana,

391 U.S. 145 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Gomez v. United States,

490 U.S. 858 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Hedrick v. State,

474 P.3d 4 (Ak. App. 2020).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Jackson v. United States,

262 A.2d 106 (D.C. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Johnson v. Louisiana,

406 U.S. 356 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Little v. United States,

665 A.2d 977 (D.C. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

Lopez v. United States,

615 A.2d 1140 (D.C. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Marone v. United States,

10 F.3d 65 (2d Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ramos v. Louisiana,

140 S. Ct. 1390 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

State v. Arthur,

374 S.E.2d 291 (S.C. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 15

State v. Bell,

720 A.2d 311 (Md. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Gore,

955 A.2d 1 (Conn. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Kerlyn T.,

253 A.3d 963 (Conn. 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Liddell,

672 N.W.2d 805 (Iowa 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

State v. Lomax,

852 N.E.2d 205 (Ohio App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Miranda,

672 N.W.2d 753 (Iowa 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Rizzo,

31 A.3d 1094 (Conn. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

United States v. Christensen,

18 F.3d 822 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Cochran,

770 F.2d 850 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 10

United States v. Duarte-Higareda,

113 F.3d 1000 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14

TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Guerrero-Peralta,

446 F.2d 876 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

United States v. Lilly,

536 F.3d 190 (3d Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Martin,

704 F.2d 267 (6th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 12

United States v. McCurdy,

450 F.3d 282 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Reyes,

603 F.2d 69 (9th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

United States v. Robertson,

45 F.3d 1423 (10th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 13

United States v. Rodriguez,

888 F.2d 519 (7th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Ron Pair Enterprises, Inc.,

489 U.S. 235 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Saadya,

750 F.3d 1419 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

United States v. Scott,

583 F.2d 362 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Shorty,

741 F.3d 961 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14

United States v. Virginia Erection Corp.,

335 F.2d 868 (4th Cir. 1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Walker v. State,

578 P.2d 1388 (Ak. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Williams v. Florida,

399 U.S. 78 (1970. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TABLE OF AUTHORITIES (cont’d)

STATUTES

PAGE

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1254(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rule 23(a), Federal Rules of Criminal Procedure.. . . . . . . . . . . . . . . . . . passim

Rule 23(b)(2), Federal Rules of Criminal Procedure. . . . . . . . . . . . . . . . . . . . . 8

vii

_____________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________________________________

Luis Fernando Ceja petitions for a writ of certiorari to review the

judgment and opinion of the United States Court of Appeals for the Ninth

Circuit in his case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Ninth Circuit,

which is also published at 23 F.4th 1218, is included in the appendix as

Appendix 1. An order denying a petition for rehearing en banc is included as

Appendix 2. The portions of transcript reflecting the district court’s

acceptance of Petitioner’s waiver of a jury trial are included as Appendix 3.

II.

JURISDICTION

The judgment of the United States Court of Appeals for the Ninth

Circuit was entered on January 26, 2022, see App. A001, and a timely petition

for rehearing en banc was denied on March 1, 2022, see App. A017. The

jurisdiction of this Court is invoked pursuant to 62 Stat. 928, 28 U.S.C. §

1254(1).

III.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides, in

pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

...

Rule 23(a) of the Federal Rules of Criminal Procedure provides, in

pertinent part:

(a) Jury Trial. If the defendant is entitled to a jury trial,

the trial must be by jury unless:

(1) the defendant waives a jury trial in writing:

...

IV.

STATEMENT OF THE CASE

JURISDICTION IN THE COURTS BELOW.

The district court had jurisdiction under 18 U.S.C. § 3231. The court of

appeals had jurisdiction under 28 U.S.C. § 1291.

FACTS MATERIAL TO CONSIDERATION OF THE QUESTIONS

PRESENTED.

Waiver of Jury Trial.

Petitioner is a Spanish-speaking defendant who needed an interpreter

throughout the proceedings. App. A036, A098. He is an undocumented

immigrant whose only education was schooling through the equivalent of

eighth grade in Mexico. App. A049, A098. He never attended school in the

United States. App. A049, A098.

The district court tried Petitioner in a bench trial, without a jury. App.

A039, A099. The court proceeded without a jury because Petitioner’s attorney

told the court Petitioner would waive the right to a jury trial. See App. A023.

The court did not have Petitioner sign a written waiver, as required by Rule

23(a) of the Federal Rules of Criminal Procedure, but took the waiver orally

instead.

The oral colloquy took up less than one page of transcript, moreover. In

its entirety, it consisted of the following:

THE COURT: Okay. Mr. Ceja, is that your

desire to have a court trial which means the judge would

decide innocence or guilt, not a jury?

THE DEFENDANT: Yes.

THE COURT: Okay. You understand that

you have a right to have a jury make that decision, and [in]

a jury trial 12 people would have to agree unanimously

beyond a reasonable doubt to find you guilty of the

offense?

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And until and unless they do,

you have got a right to be presumed innocent.

But if you have a Court trial, it’s the judge that has to

hear the evidence and make a decision whether or not the

government has proved their case beyond a reasonable

doubt, not the jury, so that would just be the Court’s

decision.

Is that agreeable with you?

THE DEFENDANT: Yes.

App. A023-24.

After the court engaged in this colloquy with Petitioner, the prosecutor

asked the court to make findings that Petitioner appeared competent. See App.

A024. The court stated in response that “it seems to be knowing, intelligent,

free and voluntary.” See App. A024.

Conviction and Appeal.

The court subsequently held the bench trial, found Petitioner guilty of

all counts in the indictment, which charged him with various drug offenses,

and sentenced him to 20 years in prison. App. A039, A099. Petitioner

appealed and argued, among other claims, that his waiver of the right to a jury

trial was invalid. See App. A042-51. First, he argued the waiver was invalid

because it was not in writing, as required by Rule 23(a). See App. A043-45.

Second, he argued a series of Ninth Circuit cases taken together recognize a

language barrier like Petitioner’s and lack of education are “salient fact[s],”

United States v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997), that

require an in-depth colloquy which, at a minimum, advises the defendant about

four characteristics of a jury trial – that “(1) twelve members of the community

compose a jury; (2) the defendant may take part in jury selection; (3) jury

verdicts must be unanimous; and (4) the court alone decides guilt or innocence

if the defendant waives a jury trial,” United States v. Cochran, 770 F.2d 850,

853 (9th Cir. 1985) (quoting United States v. Martin, 704 F.2d 267, 274 (6th

Cir. 1983)). See App. A045-49. Petitioner then pointed out that the district

court’s colloquy fell short of these requirements by omitting advice of both the

fact the jurors would be drawn from the community and the fact Petitioner

would be allowed to participate in selection of the jury. See App. A048-51.

A Ninth Circuit panel rejected these arguments (as well as Petitioner’s

other claims). It first cited Ninth Circuit precedent that “[d]espite Rule 23(a)’s

language requiring written waivers, an oral waiver may be sufficient in certain

cases.” App. A009-10. The panel then turned to the sufficiency of the oral

waiver. It noted the first of the Ninth Circuit’s oral colloquy cases cited by

Petitioner “‘implored’ – but did not mandate – district courts to ensure jury

trial waivers are knowing, voluntary, and intelligent by engaging in a

‘substantial colloquy’ that informs the defendant of four facts: ‘(1) twelve

members of the community comprise a jury; (2) the defendant may take part in

jury selection; (3) jury verdicts must be unanimous; and (4) the court alone

decides guilt or innocence if the defendant waives a jury trial.’” App. A010

(quoting Cochran, 770 F.2d at 852-53). The panel then acknowledged the

other cases cited by Petitioner – which had required this advice in certain

circumstances – but held those cases were distinguishable. See App. A010-11.

Petitioner thereafter filed a petition for rehearing en banc, in which he

argued the panel had focused solely on the facts of the prior Ninth Circuit

cases, but ignored their reasoning. See App. A090-108. The Court denied that

petition without comment. See App. A017.

REASONS FOR GRANTING THE PETITION

There are two reasons to grant the writ in this case. First, the court of

appeals below, as well as other courts of appeals, have ignored the plain,

unequivocal language of Rule 23(a) that requires a waiver of jury trial to be in

writing. They have substituted their view of the purposes of the writing

requirement and held it is enough that those purposes be advanced. While

there is not a contrary view in other circuits that creates a circuit split, there is

a contrary view evidenced by the plain language of the rule. This Court should

make clear that the plain language of Rule 23(a), not courts’ divination of its

purpose, controls.

Second, there is division and confusion in the lower courts over what

oral colloquy is necessary. Initially, the courts are divided over whether and

when an oral colloquy is required. Secondly, the courts are divided on what

must be included in an oral colloquy. Petitioner’s case is an excellent vehicle

for resolving these conflicts, because the colloquy here was minimal and

Petitioner is a dramatic example of the type of defendant – a foreign citizen

with a minimal foreign education who does not speak English – who is least

likely to understand the jury trial right and most requires an explanation.

THE WRIT SHOULD BE GRANTED BECAUSE FEDERAL COURTS

OF APPEALS HAVE IGNORED THE PLAIN LANGUAGE OF RULE 23(a)

REQUIRING THAT A WAIVER OF THE RIGHT TO A JURY TRIAL BE

IN WRITING.

The plain, unequivocal language of Rule 23(a) requires that a waiver of

jury trial be in writing. The rule states that if the defendant is entitled to a jury

trial, the trial must be by jury unless, inter alia, “the defendant waives a jury

trial in writing.” Fed. R. Crim. Pro. 23(a)(1) (emphasis added).

The Ninth Circuit did not enforce this provision in Petitioner’s case. It

stated, “Despite Rule 23(a)’s language requiring written waivers, an oral

waiver may be sufficient in certain cases,” and simply cited its prior opinion in

United States v. Shorty, 741 F.3d 961 (9th Cir. 2013). App. A009-10. Shorty

simply cited United States v. Saadya, 750 F.3d 1419 (9th Cir. 1985), see

Shorty, 741 F.3d at 966, which in turn cited United States v. Reyes, 603 F.2d

69 (9th Cir. 1979), and United States v. Guerrero-Peralta, 446 F.2d 876 (9th

Cir. 1971). See Saadya, 750 F.3d at 1420.1

As pointed out in Petitioner’s opening brief in the court of appeals, the

statements were dictum in all of these cases – and in most of the Ninth

Circuit’s other cases – because the court found the waiver invalid for other

reasons. See App. A043-44. But see United States v. McCurdy, 450 F.3d 282

(9th Cir. 1971) (finding waiver valid).

These cases declined to enforce the writing requirement based on their

perception of its purposes. In Saadya and Guerrero-Peralta, the court

characterized the requirement’s purpose as “to provide ‘the best evidence of

the express consent of a defendant,’” Guerrero-Peralta, 446 F.2d at 877

(quoting United States v. Virginia Erection Corp., 335 F.2d 868, 871 (4th Cir.

1964) (emphasis in original)), and opined that an oral consent on the record

was equally good evidence. See Saadya, 750 F.3d at 1420; Guerrero-Peralta,

446 F.2d at 877. In Reyes, the court characterized the purpose of the writing

requirement as “indicat[ing] to the defendant that the decision” – there, a

partial waiver by agreeing to a jury of less than 12 persons, which Rule 23 also

requires to be in writing, see Fed. R. Crim. Pro. 23(b)(2) – “is an important

step in the trial.” Id., 603 F.2d at 71.

The Tenth Circuit has reasoned similarly. It opined, in United States v.

Robertson, 45 F.3d 1423 (10th Cir. 1995), that “[t]he requirement a defendant

give her written consent to waive the right to trial by jury is intended to

impress her with the significance of the right relinquished and provide

evidence of her consent to forgo that right.” Id. at 1431. It then held that

“[w]hen the purposes of Rule 23(a) have been satisfied by means other than a

written waiver, little is served by rigidly requiring compliance with the Rule.”

Id.

The problem with this reasoning is twofold. First, one can easily debate

the conclusion that an oral colloquy just as effectively accomplishes the

purposes the courts of appeals divined for the writing requirement. Many, if

not most, people attach greater significance to written, signed documents, so a

written, signed document impresses a person more than a mere oral statement.

A written, signed document may also be less likely to leave ambiguity than an

oral statement, at least in some instances.

More importantly, courts’ conclusions about the purposes of a statute or

rule cannot override the plain language of the statute or rule. As this Court

stated in United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989),

“[t]he plain meaning of legislation should be conclusive, except in the ‘rare

cases [in which] the literal application of a statute will produce a result’ at

odds with the intentions of the drafters.’” Id. at 242 (quoting Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982)).

This test is hardly satisfied here. Even assuming the courts of appeals

have correctly divined the purposes of the writing requirement, the

requirement is hardly “at odds” with those purposes. It is simply the choice

the rule made for accomplishing those purposes. And that choice is certainly

“not ‘so bizarre that Congress “could not have intended”’ it,” Department of

Revenue of Oregon v. ACF Industries, Inc., 510 U.S. 332, 347 (1994) (quoting

Demarest v. Manspeaker, 498 U.S. 184, 191 (1991), and Griffin, 458 U.S. at

575).

In sum, the courts cannot override the choice evidenced by the plain

language of Rule 23(a). For better or worse, the rule chose to require the

formality of a writing. The courts are bound by that choice and cannot

substitute whatever they believe accomplishes the same purposes.

THE WRIT SHOULD BE GRANTED TO RESOLVE A SPLIT IN THE

LOWER COURTS ON WHETHER AN ORAL COLLOQUY IS REQUIRED

TO ACCEPT A JURY WAIVER AND CLARIFY WHAT THAT

COLLOQUY MUST INCLUDE.

There Is a Split in the Lower Courts on Whether a Jury Waiver

Colloquy Is Required.

There is at least arguably a split in the federal courts of appeals on

whether a jury waiver colloquy is even required and most definitely a split in

the state courts. The Seventh Circuit in 1978, albeit in an exercise of its

supervisory power, established a rule requiring “that before a district court

accepts a waiver of jury trial the court will interrogate the defendant to ensure

that he understands his right to a jury trial and the consequences of waiver,”

United States v. Scott, 583 F.2d 362, 364 (9th Cir. 1978), though the court

subsequently qualified this rule, see United States v. Rodriguez, 888 F.2d 519,

527-28 (7th Cir. 1989). Other courts of appeals have stopped short of

requiring a colloquy but nonetheless “implore[d],” United States v. Cochran,

770 F.2d 850, 853 (9th Cir. 1985); United States v. Martin, 704 F.2d 267, 274

(6th Cir. 1983), or “strongly urge[d],” United States v. Robertson, 45 F.3d

1423, 1432 (10th Cir. 1995), district courts to engage in a colloquy. See also

United States v. Lilly, 536 F.3d 190, 197-98 (3d Cir. 2008) (noting colloquy

“has been endorsed” by multiple other circuits, “as well as by our own”);

Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993) (“suggest[ing]” and

“urg[ing]” colloquy). The split in the federal courts has been recognized as

recently as 2006. See State v. Lomax, 852 N.E.2d 205, 208 (Ohio App. 2006).

There is an even clearer split in the state courts, moreover. As

summarized in State v. Bell, 720 A.2d 311 (Md. 1998), in a discussion about

the unanimity requirement in particular:

Some states agree that defendants can “knowingly and

voluntarily” waive their jury trial right without being

informed specifically that a jury’s verdict must be

unanimous. (Citations omitted.)

A number of jurisdictions, including several federal

circuits, recommend that defendants be informed of the

aspects of a jury trial, including unanimity, before

“knowingly and voluntarily” waiving the right to a jury, but

do not so require. . . . (Citations omitted.)

Finally, some jurisdictions require trial courts to

inform defendants fully of their jury trial rights, including

that the jury must vote unanimously in order to convict.

(Citations omitted.)

Id. at 320-21. As summarized in another case, some states, though not all,

require a colloquy based on statutory provisions, and others have required or

recommended a colloquy “despite the lack of statutory directive.” State v.

Lomax, 852 N.E.2d at 212-13. Examples of jurisdictions requiring a colloquy,

based on either constitutional requirements, statutory provisions, or

supervisory power, include Alaska, see Walker v. State, 578 P.2d 1388, 138990 (Ak. 1978); Connecticut, see State v. Gore, 955 A.2d 1, 11, 13-14 (Conn.

2008); Delaware, see Davis v. State, 809 A.2d 565, 571-72 (Del. 2002); the

District of Columbia, see Jackson v. United States, 262 A.2d 106, 108-09

(D.C. 1970); Iowa, see State v. Liddell, 672 N.W.2d 805, 813 (Iowa 2003);

Massachusetts, see Ciummei v. Commonwealth, 392 N.E.2d 1186, 1189 (Mass.

1979); and South Carolina, see State v. Arthur, 374 S.E.2d 291, 293 (S.C.

1988). See also Ciummei v. Amaral, 493 F. Supp. 938, 939 & nn. 1, 2 (D.

Mass. 1980) (collecting cases and noting that “[a] few jurisdictions have found

a constitutional mandate for such a colloquy, but most have not,” but then

adding that “[i]ndependent of any constitutional requirement, several

jurisdictions have deemed it advisable to require a contemporaneous colloquy

by statute, rule, or in the exercise of a general supervisory power”).

There Is Confusion in the Lower Courts on What a Jury Waiver

Colloquy Must Include.

Because this Court has never addressed the question of whether a

colloquy is required for a jury waiver, “it necessarily has not prescribed the

contents of a [colloquy].” State v. Rizzo, 31 A.3d 1094, 1118 (Conn. 2011).

And there is confusion in the lower court opinions on the question.

The federal courts which have urged or “implored” district courts to

engage in a colloquy, require “[a]t a minimum,” advice that (1) “twelve

members of the community compose a jury”; (2) “the defendant may take part

in jury selection”; (3) “jury verdicts must be unanimous”; and (4) “the court

alone decides guilt or innocence if the defendant waives a jury trial.” United

States v. Martin, 704 F.2d at 274. The Supreme Court of Massachusetts, while

“not intend[ing] to create a rigid pattern,” has suggested the trial court “might

state” that (1) “the jury consists of members of the community”; (2) “the

defendant may participate in their selection”; (3) “the verdict of the jury must

be unanimous”; (4) “[the jury] will decide guilt or innocence while the judge

makes rulings of law in the course of the trial, instructs the jury on the law,

and imposes sentence in case of guilt”; and (5) “where a jury is waived, the

judge alone decides guilt or innocence in accordance with the facts and the

law.” Ciummei v. Commonwealth, 392 N.E.2d at 1189-90. The Supreme

Court of Delaware has stated that trial courts “should” engage in the colloquy

recommended in the federal cases. Davis v. State, 809 A.2d at 572. The

Supreme Court of South Carolina has held there must be a “searching

interrogation of the accused” informing him of “the essential ingredients of a

jury trial,” though the court did not list what those “essential ingredients” are.

State v. Arthur, 374 S.E.2d at 293.

Other courts take a different view, however. The Supreme Court of

Connecticut has “rejected the defendant’s claim that the trial court’s failure to

inquire about his understanding of the process of juror selection and voir dire

. . . rendered his waiver unknowing and involuntary.” Rizzo, 31 A.3d at 1118.

See also State v. Kerlyn T., 253 A.3d 963, 971 n.10 (Conn. 2020) (declining to

mandate “a litany of facts delineating the differences between a bench trial and

a jury trial”). The Supreme Court of Iowa, while adopting the list of jury trial

characteristics set forth in the federal cases, see State v. Liddell, 672 N.W.2d at

813-14 (citing, inter alia, United States v. Robertson, 45 F.3d at 1432), added

the caveat that “these five subjects of inquiry are not ‘black-letter rules’ nor a

‘checklist,’” id. at 814, and excused omission of the right to participate in jury

selection and the fact that jurors would be drawn from the community, see

State v. Miranda, 672 N.W.2d 753, 764 (Iowa 2003). And some courts have

accepted, at least for some defendants, very minimal colloquies, sometimes

requiring no more than asking the defendant if he or she in fact wants to waive

his or her right to a jury trial and be tried by the court. See, e.g., Hedrick v.

State, 474 P.3d 4, 7-8 (Ak. App. 2020), and cases cited therein; Little v.

United States, 665 A.2d 977, 979 (D.C. 1995).

Finally, some courts have suggested the extent of the colloquy required

and/or whether it is required will vary depending on the defendant. The Ninth

Circuit, in the series of cases which it held were distinguishable from

Petitioner’s case, see supra pp. 5-6, has held that certain “salient facts,”

including “mental or emotional instability,” United States v. Christensen, 18

F.3d 822, 826 (9th Cir. 1994), a “language barrier,” United States v. DuarteHigareda, 113 F.3d 1000, 1003 (9th Cir. 1997), and a “low I.Q.” and being

“learning disabled,” United States v. Shorty, 741 F.3d 961, 967 (9th Cir.

2013), require the four-factor colloquy the court has otherwise just “implored”

district courts to engage in. See Shorty, 741 F.3d at 967; Duarte-Higareda,

113 F.3d at 1003; Christensen, 18 F.3d at 825. The District of Columbia

Court of Appeals has held merely asking the defendant if she understood the

jury trial right and wanted to give it up was sufficient for a college-educated,

English-speaking defendant who was employed as an occupational therapist,

see Little v. United States, 665 A.2d at 979, but held far more was required

when the defendant was a foreign citizen who did not speak English, was

employed as a janitor, and had only a fifth grade education, see Lopez v.

United States, 615 A.2d 1140, 1147 & n.10 (D.C. 1992).

Petitioner’s Case Is an Excellent Vehicle for Addressing the

Division and Confusion in the Lower Courts, and It Is a Case in Which There

Should Have Been a More Extensive Inquiry.

Petitioner’s case is an excellent vehicle for addressing the division and

confusion in the lower courts – for two reasons. First, the colloquy here was at

the minimal end of the spectrum. There was nothing approaching a “searching

interrogation,” supra p. 13 (quoting State v. Arthur, 374 S.E.2d at 293), but

just two short statements by the district court. The district court told Petitioner

“you have a right to have a jury make that decision, and [in] a jury trial 12

people would have to agree unanimously beyond a reasonable doubt to find

you guilty of the offense.” App. A023. It then told Petitioner, “But if you

have a Court trial, it’s the judge that has to hear the evidence and make a

decision whether or not the government has proved their case beyond a

reasonable doubt, not the jury, so that would just be the Court’s decision.”

App. A023-24. The court said nothing about the two other requirements

included in the lists set forth by the federal courts and state courts, see supra p.

12 – that the jurors would be drawn from the community, and that Petitioner

had a right to participate in selecting the jurors.

Second, to the extent the colloquy may vary depending on the

defendant, Petitioner falls at the end of the spectrum requiring a more

extensive colloquy. He was a foreign citizen who did not even speak English.

He had attended school only through the eighth grade. That school had not

been in the United States where there is a jury trial tradition, but in Mexico,

where there is a civil law system without a jury trial tradition. Cf. Lopez v.

United States, 615 A.2d at 1147 (taking judicial notice that the American jury

system does not exist in civil law countries such as the country the defendant

there was from, Honduras). Petitioner’s case presents the common

circumstance of a foreign non-English-speaking defendant with no American

education and a minimal foreign education.

These personal characteristics made the two factors that were omitted

from the colloquy which is at least recommended by most courts – that the

jurors would be drawn from the community and the defendant can participate

in selecting them – particularly critical. To begin, these are probably the most

important aspects of the jury trial right. The requirement that the jurors be

members of the community – or, in this Court’s words, “peers” – is perhaps

the most important. As the Court explained in Apodaca v. Oregon, 406 U.S.

404 (1972):

[T]he purpose of trial by jury is to prevent oppression by

the Government by providing a ‘safeguard against the

corrupt or overzealous prosecutor and against the

compliant, biased, or eccentric judge.” Duncan v.

Louisiana, 391 U.S. [145,] 156 [(1968)]. “Given this

purpose, the essential feature of a jury obviously lies in the

interposition between the accused and his accuser of the

commonsense judgment of a group of laymen . . . .”

Williams v. Florida, [399 U.S. 78,] 100 [(1970)]. . . . As we

said in Williams, a jury will come to such a judgment as

long as it consists of a group of laymen representative of

the community who have the duty and the opportunity to

deliberate, free from outside attempts at intimidation, on

the question of a defendant’s guilt.

Apodaca, 406 U.S. at 410-11. See also Johnson v. Louisiana, 406 U.S. 356,

373 (1972) (Powell, J., concurring) (“The importance that our system attaches

to trial by jury derives from the special confidence we repose in a ‘body of

one’s peers to determine guilt or innocence as a safeguard against arbitrary law

enforcement.’” (Quoting Williams, 399 U.S. at 87.)).2 And the right of the

defendant to participate in the selection process is similarly critical, for that

The Court recently overruled the underlying holding in Apodaca and

Johnson, which was that unanimity is not a constitutional requirement, see

Ramos v. Louisiana, 140 S. Ct. 1390 (2020), but it did so without

“reassess[ing] whether the right to a unanimous jury is ‘important enough.’”

Ramos, 140 S. Ct. at 1402.

selection process is, in the words of this Court in another case, “the primary

means by which the court may enforce a defendant’s right to be tried by a jury

free from ethnic, racial, or political prejudice, or predisposition about the

defendant’s culpability.” Gomez v. United States, 490 U.S. 858, 873 (1989)

(citations omitted).

Further, these are characteristics of a jury trial that a defendant who is a

foreign citizen speaking only a foreign language with just a foreign eighth

grade education would be especially unlikely to already know about. A person

raised in a culture like the United States with a bill of rights adopted to protect

citizens from the government very likely would envision a jury’s main purpose

to stand as a wall between the government and the ordinary person and would

recognize a panel of ordinary citizens as the logical way to accomplish that

purpose. But an uneducated person raised in a culture without a bill of rights

would see the main purpose of the criminal justice system as finding the truth

and envision a jury not as a group of ordinary people drawn from the

community, but as a group of people with special training and expertise in

finding the truth. That uneducated foreign citizen also would have no reason

to believe he would be allowed to participate in selection of the jury, any more

than he would be allowed to select the prosecutor who prosecutes him or the

law enforcement officers who investigated him.

The deficiencies in the colloquy in Petitioner’s case were therefore

critical deficiencies. His case is not just a good vehicle for addressing the

question of what sort of colloquy is required, but an illustration of a grossly

deficient colloquy.

VI.

CONCLUSION

The Court should grant the Petition.

Respectfully submitted,

DATED: April 14 , 2022

s/ Carlton F. Gunn

CARLTON F. GUNN

Attorney at Law

APPENDIX 1

Case: 20-50204, 01/26/2022, ID: 12351434, DktEntry: 41-1, Page 1 of 16

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF

AMERICA,

Plaintiff-Appellee,

LUIS FERNANDO CEJA,

AKA Chako,

Defendant-Appellant.

No. 20-50204

D.C. Nos.

2:18-cr-00742-RGK-DMG-1

2:18-cr-00742-RGK-DMG

OPINION

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted December 8, 2021

Pasadena, California

Filed January 26, 2022

Before: Paul J. Kelly, Jr., * Milan D. Smith, Jr., and

Danielle J. Forrest, Circuit Judges.

Opinion by Judge Kelly

The Honorable Paul J. Kelly, Jr., United States Circuit Judge for

the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

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UNITED STATES V. CEJA

SUMMARY **

Criminal Law

The panel affirmed a conviction and sentence for

conspiracy to distribute methamphetamine, distribution of

methamphetamine in the amount of at least 50 grams,

distribution of methamphetamine in the amount of at least

five grams, and distribution of methamphetamine within

1,000 feet of a school.

The defendant argued that his oral jury trial waiver was

invalid, in this case in which both parties agreed that the

district court did not inform the defendant of all four facts

that make up a “substantial colloquy” under United States v.

Cochrane, 770 F.2d 850 (9th Cir. 1985). In particular, the

district court did not inform the defendant that he could take

part in jury selection or that the jurors would be members of

his community. Noting that this court’s precedent permits

oral jury trial waivers, the panel held that the district court’s

colloquy was adequate to ensure that the defendant

knowingly, voluntarily, and intelligently waived his trial.

The panel wrote that because the jury trial waiver was

conducted orally through a court-interpreter, the defendant’s

language skills were not a barrier at his waiver proceeding,

and there is no evidence that the defendant suffers from

emotional or cognitive disabilities.

Reviewing the district court’s denial of the defendant’s

motion for substitute counsel, the panel held that, given the

subject matter of the colloquy (the defendant’s

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. CEJA

dissatisfaction with his counsel’s suggested outcomes), the

district court did not abuse its discretion in summarizing its

ruling using the language of “inadequacy” rather than

“conflict”; and that the district court’s inquiry, though brief,

was more than adequate to discern the defendant’s

complaints.

The defendant argued that the evidence was insufficient

to convict him of distribution of at least 50 grams of

methamphetamine.

Without resolving whether a

defendant’s failure to challenge an indictment that could be

duplicitous waives a later challenge based on insufficiency

of the evidence, the panel wrote that even if it were to reach

the merits of the defendant’s sufficiency of the evidence

claim, the claim would not succeed, because a rational trier

of fact viewing the evidence in the light most favorable to

the government could find that the defendant distributed 50

grams of methamphetamine in one distribution beyond a

reasonable doubt.

Challenging the district court’s application of the career

offender guideline at sentencing, the defendant contended

that his prior convictions under California Health and Safety

Code § 11378 are not controlled substance offenses because

the California methamphetamine provisions sweep more

broadly than the federal provisions. The panel held that even

assuming the district court erred under Fed. R. Crim. P. 32

by making no explicit factual finding on the defendant’s

objection to the Presentence Report regarding whether

geometrical isomers exist, and assuming that error was plain,

the error was harmless because under United States v.

Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020),

California’s definition of methamphetamine is a categorical

match to the definition under federal law based on the

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UNITED STATES V. CEJA

scientific fact that geometrical isomers of methamphetamine

do not exist.

COUNSEL

Carlton F. Gunn (argued), Law Office of Carlton Gunn,

Pasadena, California, for Defendant-Appellant.

Andrew M. Roach (argued) and Gregg Marmaro, Assistant

United States Attorneys; Bram M. Adlen, Chief, Criminal

Appeals Section; Tracy L. Wilkison, Acting United States

Attorney; United States Attorney’s Office, Los Angeles,

California; for Plaintiff-Appellee.

OPINION

KELLY, Circuit Judge:

Defendant-Appellant Luis Fernando Ceja appeals his

conviction and sentence for conspiracy to distribute

methamphetamine, 21 U.S.C. § 846; distribution of

methamphetamine in the amount of at least 50 grams,

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii); distribution of

methamphetamine in the amount of at least five grams,

21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii); and distribution of

methamphetamine within 1,000 feet of a school, 21 U.S.C.

§ 860(a). We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), and we affirm.

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UNITED STATES V. CEJA

FACTUAL AND PROCEDURAL HISTORY

A. Indictment and Drug Offenses

On October 25, 2018, Mr. Ceja was indicted for three

sales of methamphetamine to an informant occurring on

October 21, October 29, and November 5, 2014. The

transactions were captured on audio and video. On October

21, Mr. Ceja indirectly sold two ounces to the informant

through a co-conspirator. On October 29, the informant

called the co-conspirator and requested one more ounce of

methamphetamine but explained she would purchase two

ounces if the co-conspirator could introduce her to Mr. Ceja.

At the co-conspirator’s house located near a middle school,

the informant met Mr. Ceja and paid him for two ounces of

methamphetamine. Mr. Ceja gave the informant one ounce

and asked the informant to follow him in a car to obtain the

second ounce. The parties took a short drive and parked near

an apartment complex, where Mr. Ceja entered and reemerged and gave the informant the second ounce. On

November 5, Mr. Ceja distributed an additional ounce to the

informant.

B. Request for Substitute Counsel

A few months after his arrest, Mr. Ceja filed an ex parte

application seeking a hearing “regarding status of counsel”

without providing a reason for the request. The court held a

hearing on August 6, 2019. Mr. Ceja was assisted by a

Spanish interpreter throughout his court proceedings.

Initially, Mr. Ceja only asked the court for assignment to a

drug rehabilitation or house arrest program. The court asked

whether Mr. Ceja had discussed the request with his

attorney, and Mr. Ceja’s attorney told the court that Mr. Ceja

had rejected a plea agreement and “want[ed] another lawyer

that can help him.” The court noted that Mr. Ceja had not

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UNITED STATES V. CEJA

yet specifically requested a new attorney and took a brief

recess for Mr. Ceja to confer with his attorney. After the

recess, the district court asked again what Mr. Ceja wanted

the court to do. Mr. Ceja responded:

DEFENDANT: That I want to change my

attorney because as my attorney, he is not

helping me.

COURT: In what way?

DEFENDANT: He wants me to accept ten

years, and I don’t think that’s right. And as

my attorney, he’s not helping me to do the

things that I’m telling him to do. That’s why

I would like to know if you can provide me

with another attorney who will help me.

The court responded that it was not counsel’s job to “tell you

what you want to hear” and that “there’s no indication that

another attorney would tell you anything else.” The court

then asked:

COURT: Is there anything specifically that

he has done that you think is inadequate or

improper?

DEFENDANT: Well, he wanted me to sign

for ten years, and that’s a lot of time.

COURT: But [you] don’t have to sign for ten

years. That’s your choice. He probably told

you he thinks it’s best for you to sign for ten

years?

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UNITED STATES V. CEJA

DEFENDANT: Yes. But I told him to help

me with a rehab program for the drugs,

whatever is needed because I have to take

care of my children who are outside.

COURT: Well, . . . I haven’t heard anything

to justify inadequacy of counsel. Is there

anything else [Counsel] can add?

COUNSEL: I really have nothing. There is

no conflict that I see, Your Honor.

The district court then asked if there was “anything else

anybody wants to say,” and Mr. Ceja’s attorney repeated that

he had requested the hearing because Mr. Ceja wanted to talk

to the court about getting a new lawyer. The district court

concluded that “there’s no showing of inadequacy of counsel

or counsel and the client” and rejected Mr. Ceja’s request.

C. Oral Jury Trial Waiver

After filing, and withdrawing, a second request for a new

attorney, Mr. Ceja waived his right to a jury trial on February

25, 2020, after the following colloquy:

COURT: Okay. Mr. Ceja, is that your desire

to have a court trial which means the judge

would decide innocence or guilt, not a jury?

DEFENDANT: Yes.

COURT: Okay. You understand that you

have a right to have a jury make that decision,

and a jury trial 12 people would have to agree

unanimously beyond a reasonable doubt to

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UNITED STATES V. CEJA

find you guilty of the offense.

understand that?

Do you

DEFENDANT: Yes.

COURT: And until and unless they do, you

have got a right to be presumed innocent. But

if you have a Court trial, it’s the judge that

has to hear the evidence and make a decision

whether or not the government has proved

their case beyond a reasonable doubt, not the

jury, so that would be the Court’s decision. Is

that agreeable with you?

DEFENDANT: Yes.

The district court remarked that Mr. Ceja’s oral jury trial

waiver “seem[ed] to be knowing, intelligent, free and

voluntary.”

D. Bench Trial and Verdict

Mr. Ceja’s bench trial began on March 10, 2020. Before

trial, the government, defense counsel, and Mr. Ceja all

confirmed that both sides had waived a jury trial. After a

one-day bench trial, the court found Mr. Ceja guilty on all

four counts for which he was tried.

E. Sentencing and Application of the Career Offender

Guideline

Mr. Ceja’s sentencing guideline range was 360 months

to life imprisonment based on the career offender guideline.

See U.S.S.G. § 4B1.1. This differed from an earlier pre-plea,

Presentence Report (PSR) that did not classify Mr. Ceja as a

career offender. The pre-plea PSR concluded Mr. Ceja’s

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UNITED STATES V. CEJA

prior convictions under California Health and Safety Code

§ 11378 were not controlled substance offenses under the

career offender guideline. However, between the pre-plea

PSR and post-verdict PSR, we decided United States v.

Rodriguez-Gamboa, 946 F.3d 548 (9th Cir. 2019). In light

of that decision, the probation office updated its PSR,

concluding that Mr. Ceja’s prior convictions were controlled

substance offenses, and the career offender guideline

applied. Mr. Ceja objected. At sentencing, the district court

did not address his objection but nevertheless varied

downward because of Mr. Ceja’s reliance on the pre-plea

PSR, imposing a 240-month sentence.

DISCUSSION

On appeal, Mr. Ceja argues that his convictions and

sentence must be vacated because: (1) his oral jury trial

waiver was invalid; (2) the district court abused its discretion

in rejecting his request for substitute counsel; (3) the

evidence is insufficient with respect to his conviction of

distribution of at least 50 grams of methamphetamine; and

(4) the court erroneously treated his prior convictions as

controlled substance offenses under the career offender

guideline.

A. Oral Jury Trial Waiver

The adequacy of a jury trial waiver is reviewed de novo.

United States v. Shorty, 741 F.3d 961, 965 (9th Cir. 2013).

Federal Rule of Criminal Procedure 23(a) requires three

conditions for a defendant to waive his right to a jury trial:

“(1) the defendant waives a jury trial in writing; (2) the

government consents; and (3) the court approves.” Case law

requires a fourth condition: the waiver must be knowing,

voluntary, and intelligent. United States v. Cochran,

770 F.2d 850, 851 (9th Cir. 1985). Despite Rule 23(a)’s

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UNITED STATES V. CEJA

language requiring written waivers, an oral waiver may be

sufficient in certain cases. Shorty, 741 F.3d at 966. A

written waiver carries the presumption that it was made

knowingly, voluntarily, and intelligently. Id. Where there

is no written waiver—as in this case—there is no such

presumption. See id.

In Cochran, this court “implored”—but did not

mandate—district courts to ensure jury trial waivers are

knowing, voluntary, and intelligent by engaging in a

“substantial colloquy” that informs the defendant of four

facts: “(1) twelve members of the community compose a

jury; (2) the defendant may take part in jury selection;

(3) jury verdicts must be unanimous; and (4) the court alone

decides guilt or innocence if the defendant waives a jury

trial.” 770 F.2d at 852–53. However, the described

substantial colloquy is required where a defendant’s mental

or emotional state is a salient fact putting the court on notice

that a defendant’s waiver may not be knowing and

intelligent. United States v. Christensen, 18 F.3d 822, 825–

26 (9th Cir. 1994). Both parties agree that the district court

did not inform Mr. Ceja of all four facts that make up a

substantial colloquy. In particular, the district court did not

inform Mr. Ceja that he could take part in jury selection or

that the jurors would be members of his community.

However, nothing suggested that Mr. Ceja’s waiver might

not be knowing and intelligent, and thus the failure of the

district court to explicitly explain the jury selection process

is not determinative.

Mr. Ceja argues that his language barrier and eighthgrade education obtained in a foreign country constituted

salient facts that put the district court on notice that his

waiver was not knowing and intelligent. Mr. Ceja relies

heavily on United States v. Duarte-Higareda, 113 F.3d 1000

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(9th Cir. 1997), in arguing that his language barrier required

a substantial colloquy, but the facts of that case are readily

distinguishable. Mr. Duarte-Higareda also used a Spanish

interpreter throughout his district court proceedings, but

unlike Mr. Ceja, Mr. Duarte-Higareda waived his right to a

jury trial in writing using a form that was printed entirely in

English, and there was no evidence that the written waiver

was ever translated. Id. at 1002. Because Mr. Ceja’s jury

trial waiver was conducted orally through a court-certified

interpreter, his language skills were not a barrier at his

waiver proceeding.

Mr. Ceja also relies heavily on Christensen and Shorty

to argue that his limited education in a foreign country

constitutes a salient fact, but, again, these cases are

inapposite.

In Christensen, the defendant’s manicdepressive disorder required further inquiry into the

voluntariness of his waiver. 18 F.3d at 825. In Shorty, the

defendant had a “low I.Q.” and was “learning disabled.”

741 F.3d at 967. Here, there is no evidence that Mr. Ceja

suffers from emotional or cognitive disabilities. Thus, where

this court’s precedent permits oral jury trial waivers, the

district court’s colloquy was adequate to ensure that Mr.

Ceja knowingly, voluntarily, and intelligently waived his

right to a jury trial.

B. Motion for Substitute Counsel

This court reviews the denial of a motion for substitute

counsel for an abuse of discretion and considers: “(1) the

timeliness of the motion; (2) the adequacy of the district

court’s inquiry; and (3) whether the asserted conflict was so

great as to result in a complete breakdown in communication

and a consequent inability to present a defense.” United

A011

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UNITED STATES V. CEJA

States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir.

2009). Mr. Ceja challenges the second factor. 1

First, Mr. Ceja argues that the district court erroneously

focused on counsel’s competency, rather than the conflict

between Mr. Ceja and his counsel. “[T]he proper focus . . .

is on the nature and extent of the conflict between defendant

and counsel, not on whether counsel is legally competent.”

United States v. Walker, 915 F.2d 480, 483 (9th Cir. 1990),

overruled on other grounds by United States v. Nordby,

225 F.3d 1053 (9th Cir. 2000). Although the district court

did not directly discuss the purported conflict between

Mr. Ceja and his counsel, it did acknowledge that Mr. Ceja’s

counsel did not see a conflict and received no substantive

response after asking if there was anything else anybody

wanted to add. Given the subject matter of the colloquy

(Mr. Ceja’s dissatisfaction with his counsel’s suggested

outcomes) and its context, the district court did not abuse its

discretion in summarizing its ruling on the motion using the

language of “inadequacy” rather than “conflict.”

Second, Mr. Ceja argues that the district court’s inquiry

was not sufficiently in-depth. A court’s inquiry must

provide an adequate foundation for making an informed

ruling. United States v. Reyes-Bosque, 596 F.3d 1017, 1033

(9th Cir. 2010).

Open-ended questions aimed at

understanding the core of the issues between a defendant and

The government argues that Mr. Ceja waived this argument on

appeal due to his February 2020 request for new counsel and subsequent

withdrawal of that request. Because courts should make every

reasonable presumption against a finding of waiver of constitutional

rights, Gete v. INS, 121 F.3d 1285, 1293 (9th Cir. 1997), we do not deem

this claim regarding Mr. Ceja’s August 2019 request for new counsel to

be waived based on Mr. Ceja’s withdrawal of a subsequent request for

new counsel.

A012

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UNITED STATES V. CEJA

counsel are adequate. See Mendez-Sanchez, 563 F.3d

at 942–43. Although brief, the district court’s inquiry was

more than adequate to discern Mr. Ceja’s underlying

complaints. The district court was able to discern twice—

both before and after the court’s recess—that the source of

the purported conflict was Mr. Ceja’s dissatisfaction with the

ten-year plea deal and counsel’s inability to get him into a

rehab program. The open-ended questions and Mr. Ceja’s

responses allowed the district court to evaluate whether there

was a severe conflict amounting to a breakdown of

communication in the attorney-client relationship. See

United States v. McKenna, 327 F.3d 830, 844 (9th Cir.

2003). The district court did not abuse its discretion in

considering this motion.

C. Sufficiency of Evidence

Mr. Ceja argues that the evidence was insufficient to

convict him of distribution of at least 50 grams of

methamphetamine. The government argues that Mr. Ceja

waived this claim for appellate review because his

sufficiency of the evidence claim is merely a duplicity

challenge to his indictment in disguise. Federal Rule of

Criminal Procedure 12(b)(3)(B)(i) is clear that any defense

involving a defect in the indictment, including “joining two

or more offenses in the same count (duplicity),” must be

raised in a pretrial motion or it is waived. See United States

v. McCormick, 72 F.3d 1404, 1409 (9th Cir. 1995). Mr. Ceja

contends that he properly brings a sufficiency of evidence

claim as he is asserting a violation of his “constitutional right

not to be convicted of a criminal offense for which there is

insufficient evidence.”

We have not resolved whether a defendant’s failure to

challenge an indictment that could be duplicitous waives a

later challenge based on insufficiency of the evidence. And

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UNITED STATES V. CEJA

we need not do so here because even if we were to reach the

merits of Mr. Ceja’s sufficiency of the evidence claim, it

would not succeed. A rational trier of fact viewing the

evidence (including the audio and video recordings) in the

light most favorable to the government could find that Mr.

Ceja distributed 50 grams of methamphetamine in one

distribution beyond a reasonable doubt. See United States v.

Laney, 881 F.3d 1100, 1106 (9th Cir. 2018). While Mr. Ceja

gave the informant two one-ounce baggies of

methamphetamine at different locations, the deliveries

occurred a short distance apart, within a short period of time,

between the same individuals, and shortly after Mr. Ceja was

given a single payment for both ounces. Consequently, the

deliveries are sufficiently related to be rationally considered

one distribution. See United States v. Mancuso, 718 F.3d

780, 793–94 (9th Cir. 2013); cf. United States v. Palafox,

764 F.2d 558, 562–63 (9th Cir. 1985) (en banc) (finding drug

offenses “committed at virtually the same time, in the same

place, and with the same participants” should not be

compounded for punishment purposes, in contrast to

distributions involving “two different individuals as part of

two separate transactions”).

D. Application of the Career Offender Guideline

Whether a conviction qualifies as a controlled substance

offense is a question of law reviewed by this court de novo.

United States v. Leal-Vega, 680 F.3d 1160, 1163 (9th Cir.

2012).

The district court found that Mr. Ceja qualified as a

career offender because his two prior convictions under

California Health and Safety Code § 11378 are controlled

substance offenses. Mr. Ceja contends that his prior state

convictions are not controlled substance offenses because

the California methamphetamine provisions sweep more

A014

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UNITED STATES V. CEJA

broadly than the federal provisions, and the career offender

guideline should not have been applied. However, both

Mr. Ceja and the government agree that United States v.

Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020), controls

as a matter of law, and that this case squarely rejects

Mr. Ceja’s argument regarding his prior state convictions.

The district court correctly applied the career offender

guideline under Rodriguez-Gamboa.

Mr. Ceja also objected to his PSR on the basis that

“whether geometric isomers of methamphetamine exist is a

factual issue that remains to be resolved in the district court.”

Federal Rule of Criminal Procedure 32(i)(3)(B) states a

sentencing court “must—for any disputed portion of the

presentence report or other controverted matter—rule on the

dispute or determine that a ruling is unnecessary either

because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” Any

findings of the district court under Rule 32(i)(3)(B) must be

“express and explicit.” United States v. Wijegoonaratna,

922 F.3d 983, 990 (9th Cir. 2019). Where, as here, a

defendant does not object to the district court’s compliance

with Rule 32 at sentencing, this court reviews for plain error.

Id. at 989. “Plain error is (1) error, (2) that is plain, and

(3) that affects substantial rights.” United States v. Depue,

912 F.3d 1227, 1232 (9th Cir. 2019) (en banc) (quoting

United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir.

2009)).

The district court made no explicit factual finding on

whether geometrical isomers exist. But even assuming the

district court erred, and that error was plain, the error was

harmless because there is no possibility that the court’s

resolution of Mr. Ceja’s factual objection would have

affected his sentence. Under the plain error standard, a

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UNITED STATES V. CEJA

sentencing error prejudices a defendant’s substantial rights

“when there is a reasonable probability that he would have

received a different sentence had the district court not erred.”

United States v. Christensen, 732 F.3d 1094, 1102 (9th Cir.

2013). This court in Rodriguez-Gamboa held, as a matter of

law, that California’s definition of methamphetamine is a

categorical match to the definition under federal law based

on the scientific fact that geometrical isomers of

methamphetamine do not exist. See 972 F.3d at 1154 n.5.

The district court expressly stating that fact would not

change Mr. Ceja’s sentence.

AFFIRMED.

A016

APPENDIX 2

Case: 20-50204, 03/01/2022, ID: 12382735, DktEntry: 43, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAR 1 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

LUIS FERNANDO CEJA, AKA Chako,

Defendant-Appellant.

No.

20-50204

D.C. Nos.

2:18-cr-00742-RGK-DMG-1

2:18-cr-00742-RGK-DMG

Central District of California,

Los Angeles

ORDER

Before: KELLY,* M. SMITH, and FORREST, Circuit Judges.

The panel unanimously votes to deny the petition for panel rehearing. Judges

Smith and Forrest also vote to deny the petition for rehearing en banc, and Judge

Kelly so recommends. The full court has been advised of the petition for rehearing

en banc, and no judge of the court has requested a vote. The petition for panel

rehearing and rehearing en banc is DENIED.

The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

A017

APPENDIX 3

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

HONORABLE ROBERT G. KLAUSNER, U.S. DISTRICT JUDGE

UNITED STATES OF AMERICA,

Plaintiff,

vs.

Case No. CR 18-742-RGK

LUIS FERNANDO CEJA, et al,

Defendant.

REPORTER'S TRANSCRIPT OF

STATUS CONFERENCE

TUESDAY, FEBRUARY 25, 2020

10:00 A.M.

LOS ANGELES, CALIFORNIA

________________________________________________________

TERRI A. HOURIGAN, CSR NO. 3838, CCRR

FEDERAL OFFICIAL COURT REPORTER

350 WEST FIRST STREET, ROOM 4311

LOS ANGELES, CALIFORNIA 90012

(213) 894-2849

UNITED STATES DISTRICT COURT

A018

APPEARANCES OF COUNSEL:

FOR THE PLAINTIFF:

UNITED STATE ATTORNEY'S OFFICE

BY: ANDREW M. ROACH

Assistant United States Attorney

United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Andrew.roach@usdoj.gov

FOR THE DEFENDANT:

Luis Fernando Ceja

LAW OFFICE OF MARK A. CHAMBERS

BY: MARK A. CHAMBERS

Attorney at Law

14241 East Firestone Boulevard, Suite 400

La Mirada, California 90638

chambers@markchamberslaw.com

FOR THE DEFENDANT:

Brenda Jimenez

LAW OFFICES OF CURTIS V. LEFTWICH

BY: CURTIS V. LEFTWICH

Attorney at Law

18809 Los Alamos Street

Northridge, California 91326

thedorsal@aol.com

FOR THE DEFENDANT:

Alberto Mauricio Guerrero

LAW OFFICES OF HUMBERTO DIAZ

BY: HUMBERTO DIAZ

Attorney at Law

714 West Olympic Boulevard, Suite 450

Los Angeles, California 90015

JHDDiazLaw@gmail.com

ALSO PRESENT:

Javier Villalobos, Interpreter

UNITED STATES DISTRICT COURT

A019

LOS ANGELES, CALIFORNIA; TUESDAY, FEBRUARY 25, 2020

10:00 A.M.

--oOo--

THE COURTROOM DEPUTY:

Calling Criminal

No. 18-742-RJK United States of America versus Luis Fernando

Ceja and Brenda Jimenez.

Counsel, please state your appearances.

MR. ROACH:

Good morning, Your Honor.

for the United States.

THE COURT:

MR. CHAMBERS:

Andrew Roach

Counsel.

Good morning, Your Honor.

Mark

Chambers on behalf of Mr. Ceja, who is present before the Court

in custody and he is being assisted by a Spanish language

interpreter.

THE COURT:

Okay.

MR. LEFTWICH:

Good morning, counsel.

Good morning, Your Honor.

Curt

Leftwich on behalf of Brenda Jimenez, and she is present in

court.

THE COURT:

Thank you.

Anybody else?

MR. DIAZ:

Good morning, Your Honor.

This is

Humberto Diaz, and I'm representing Mr. Guerrero, who is not

present.

THE COURT:

He's not with us at this time?

UNITED STATES DISTRICT COURT

A020

MR. DIAZ:

No.

THE COURT:

We have two things.

One is a status

conference, and we will get to that later.

The first thing is whether or not -- is the motion to

relieve attorney, so let's do that first.

Do you want a closed hearing on that, I'm assuming,

counsel?

MR. CHAMBERS:

Your Honor, this morning there has

been a change of position, and so my understanding is Mr. Ceja

now will not be asking for new counsel or to represent himself.

THE COURT:

MR. CHAMBERS:

informing the Court.

THE COURT:

Okay.

I was just informed of that, so I'm

Thank you very much.

Mr. Ceja, is that correct, that you no longer wish to

relieve your counsel or represent yourself, but you wish to

proceed with counsel that you have?

THE DEFENDANT:

THE COURT:

That's right, yes, I do want him.

Okay.

Thank you.

Then that motion will be withdrawn at that time, counsel.

Let's talk about status, because we have a trial date of

March 10th.

We have a case that has been put over -- I don't have it

right in front of me -- it's been put over twice already.

What is the position of all sides because my understanding

UNITED STATES DISTRICT COURT

A021

-- well, before you even get to that, let me ask you this:

is charged in Count 6 of this matter?

MR. ROACH:

Who

In Count 6, Your Honor, Count 6 is

defendant Ceja and defendant Ramirez.

But Count 6 we're actually -- the government I believe has

filed before, I think we envision -- I'm sorry, I'm speaking of

the other count.

defendant Ramirez are charged in that count.

But Count 6, right now, defendant Ceja and

THE COURT:

Okay.

That just wasn't clear.

So what is the status of -- because I'm under the

impression that there may or may not be an agreement as to

request for a continuance.

One defendant is saying, yes, and the other one is saying

no.

What is the status, first of all?

MR. CHAMBERS:

Your Honor, we're ready to go on the 10th of next month.

THE COURT:

MR. LEFTWICH:

Your Honor, on behalf of Mr. Ceja,

Okay.

Counsel?

As to Ms. Jimenez.

She's going to

enter a plea within the next few days.

But the only hold-up on that would be just that she has

applied for CASA just recently.

We're hopeful and maybe even cautiously optimistic that

she is going to be accepted into that.

reason to postpone.

That would be the only

UNITED STATES DISTRICT COURT

A022

She has a plea agreement.

She is about to sign, not today

because there is one change that needs to be made, but we

expect to have that signed, and we can submit -- have it

submitted to the Court within the next two days.

THE COURT:

Thank you very much counsel.

This is set for the 10th, and it will remain on the 10th.

We will see what happens as far as the plea goes and everything

else.

Is there anything else we have to discuss today?

MR. CHAMBERS:

Yes, Your Honor.

Mr. Ceja is indicating that he wishes to waive jury trial

and have a Court trial to commence on the 10th.

THE COURT:

Okay.

Mr. Ceja, is that your desire to

have a court trial which means the judge would decide innocence

or guilt, not a jury?

THE DEFENDANT:

THE COURT:

Yes.

Okay.

You understand that you have a

right to have a jury make that decision, and a jury trial

12 people would have to agree unanimously beyond a reasonable

doubt to find you guilty of the offense.

Do you understand that?

THE DEFENDANT:

THE COURT:

Yes.

And until and unless they do, you have

got a right to be presumed innocent.

But if you have a Court trial, it's the judge that has to

UNITED STATES DISTRICT COURT

A023

hear the evidence and make a decision whether or not the

government has proved their case beyond a reasonable doubt, not

the jury, so that would just be the Court's decision.

Is that agreeable with you?

THE DEFENDANT:

THE COURT:

MR. CHAMBERS:

MR. ROACH:

Yes.

Counsel, do you join?

Yes, Your Honor.

Your Honor, I would just ask if the

Court can make some findings that the defendant appears

competent to waive his right to jury trial?

THE COURT:

From the appearances we have had here in

court and from his appearance today, it seems to be knowing,

intelligent, free and voluntary on the part of the defendant as

to his jury trial.

MR. ROACH:

Thank you, Your Honor.

MR. DIAZ:

Your Honor, if I may?

THE COURT:

Sure.

MR. DIAZ:

This is Humberto Diaz on behalf of

Mr. Guerrero who is not present.

I don't know what the government intends to do with

regards to my client.

We're prepared to proceed to trial, but I'm not waiving

jury trial as to Mr. Guerrero.

THE COURT:

Counsel, your client is not in front of

us.

UNITED STATES DISTRICT COURT

A024

A jury trial or Court trial, he wouldn't be tried on the

10th.

And there is no question that you haven't joined in the

waiver of the jury trial at all.

MR. DIAZ:

Very well.

MR. ROACH:

Because of his fugitive status that time

would be excluded as a matter of law from the speedy trial

calculation?

THE COURT:

Sure, yes.

MR. ROACH:

We're prepared to proceed trial against

Mr. Ceja on the 10th.

THE COURT:

will see you back on the 10th.

MR. ROACH:

Thank you, Your Honor.

THE COURT:

We may see counsel back in the interim.

MR. LEFTWICH:

(The proceedings concluded at 10:13 a.m.)

* * *

Anything else from anybody?

If not, we

Thank you, Your Honor, next week.

UNITED STATES DISTRICT COURT

A025

CERTIFICATE OF OFFICIAL REPORTER

COUNTY OF LOS ANGELES

STATE OF CALIFORNIA

)

I, TERRI A. HOURIGAN, Federal Official Realtime

Court Reporter, in and for the United States District Court for

the Central District of California, do hereby certify that

pursuant to Section 753, Title 28, United States Code that the

foregoing is a true and correct transcript of the

stenographically reported proceedings held in the

above-entitled matter and that the transcript page format is in

conformance with the regulations of the judicial conference of

the United States.

Date:

November 2, 2020

/s/ TERRI A. HOURIGAN

TERRI A. HOURIGAN, CSR NO. 3838, RPR, CRR

Federal Official Court Reporter

UNITED STATES DISTRICT COURT

A026

Case 2:18-cr-00742-RGK Document 201 Filed 05/22/20 Page 1 of 164 Page ID #:848

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

- - HONORABLE R. GARY KLAUSNER,

UNITED STATES DISTRICT JUDGE PRESIDING

- - -

)

PLAINTIFF,

)

VS.

)

LUIS FERNANDO CEJA, et al.,

)

DEFENDANTS.

)

______________________________)

UNITED STATES OF AMERICA,

CERTIFIED COPY

CR 18-00742 RGK

COURT TRIAL

REPORTER'S TRANSCRIPT OF PROCEEDINGS

TUESDAY, MARCH 10, 2020

LOS ANGELES, CALIFORNIA

SHERI S. KLEEGER, CSR 10340

FEDERAL OFFICIAL COURT REPORTER

312 NORTH SPRING STREET, ROOM 402

LOS ANGELES, CALIFORNIA 90012

PH: (213)894-6604

A027

Case 2:18-cr-00742-RGK Document 201 Filed 05/22/20 Page 2 of 164 Page ID #:849

APPEARANCES OF COUNSEL:

ON BEHALF OF PLAINTIFF:

UNITED STATES ATTORNEY

BY: GREG MARMARO, AUSA

ANDREW ROACH, AUSA

EDDIE JAUREGUI, AUSA

ASSISTANT UNITED STATES ATTORNEY

1100 UNITED STATES COURTHOUSE

312 NORTH SPRING STREET

LOS ANGELES, CA 90012

ON BEHALF OF DEFENDANT:

LAW OFFICES OF MARK A. CHAMBERS

BY: MARK A. CHAMBERS, ESQUIRE

14241 EAST FIRESTONE BOULEVARD

SUITE 400

LA MIRADA, CA 90638

A028

Case 2:18-cr-00742-RGK Document 201 Filed 05/22/20 Page 3 of 164 Page ID #:850

I N D E X

WITNESS:

DIRECT

HERMIDA, Esther

WILLIAMS, Nick

CROSS

REDIRECT

RAMIREZ, Elena

105

109

7 MARTINEZ, Fracia

111

124

CEJA, Luís

127

RECROSS

129

NUMBER

6A,7A,8A,17A,18A,19A

PAGE

4,5,6,7,8

9,10,11,12

16,17,18,19

20,21,22

1,13,23

A029

Case 2:18-cr-00742-RGK Document 201 Filed 05/22/20 Page 4 of 164 Page ID #:851

LOS ANGELES, CALIFORNIA; TUESDAY, MARCH 10, 2020

A.M. SESSION

- - -