Petition — Scafidi v. United States

Supreme Court brief1980

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Buprome Court, U a.

FILED

MAY 3 1980

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In THE

Supreme Court of the Unites States

Ocroser TERM, 1979

No. @9°1745

GREGORY SCAFIDI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ALLAN A. ACKERMAN, ESQ.

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

(312) 332-2863

Attorney for Petitioner,

Gregory Scafidt.

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

PAGE

OPINION BELOW 1

JURISDICTION “ 2

QUESTION PRESENTED 2

CONSTITUTIONAL PROVISIONS AND RULES... 2

STATEMENT OF THE CASE 4

REASONS FOR GRANTING THE WRIT _.......... 7

ARGUMENT 10

CONCLUSION ) 15

APPENDICES:

GROUP

APPENDIX A—Order Below, dated March 4, 1980 ...... A-1

APPENDIX B—Order denying rehearing dated April

9, 1980 A-10

APPENDIX C—Graph RE: Jury and Non-Jury trials

reproduced from Administrative Of-

fice of the United States Courts, An-

nual Report A-11

APPENDIX D—Facsimile of Jury Waiver Form as

used in the case at bar A-13

LIST OF AUTHORITIES

Cases

Adams v. U.S. ex rel. McCann, 317 U.S. 269, 63 S.Ct.

236 (1943) . : 8, 10, 12

Dranow v. U.S., 325 F.2d 481 (CA 8, 1963) 0. 9, 13

Duncan v. La., 391 U.S. 145 (1968) 12

Estrada v. U.S., 457 F.2d 255 (CA 7, 1972) 0... 8

Gannett Co. Ine. v. DePasquale, ...... Ue sam OO Be

Ct. 2898 (1979) 7, 10

Horne v. U.S., 264 F.2d 40 (CA 5, 1959), Cert. Denied

360 U.S. 934 9

Howard v. U.S., 423 F.2d 1102 (CA 9, 1970) 0... 9, 11

McCarthy v. U.S., 394 U.S. 459, 89 S.Ct. 1166 (1969) .... 10

Patton v. U.S., 281 U.S. 312, 50 S.Ct. 263 (1930) 0... 7,8

Singer v. U.S., 380 U.S. 38, 85 S.Ct. 791 (1965) ....0......... 7

Spencer v. Texas, 385 U.S. 554 (1967) 12

U.S. v. David, 167 U.S. App. D.C. 117, 511 F.2d 355

(1975) 14

US. v. Fels, 599 F.2d 142 (CA 7, 1979) 12

U.S. v. Hunt, 413 F.2d 983 (CA 4, 1969) 8, 11, 14

U.S. v. Jackson, 390 U.S. 570 (1968) ... 12

US. v. Livingston, 459 F.2d 797 (CA 3, 1972) ........ 9, 11, 13

U.S. v. Lockwood, 604 F.2d 7 (CA 5, 1979) 9, 10

U.S. v. Mitchell, 427 F.2d 1281 (CA 3, 1970) 8, 13

U.S. v. Morris, 263 F.2d 594 (CA 7, 1959) 2.0... 9,12

U.S. v. Reyes, 603 F.2d 69 (CA 9, 1979) 13

US. v. Scott, 583 F.2d 362 (CA 7, 1978) 7,8

A CITED

iii

US. v. Straite, 425 F.2d 594 (D.C. Cir., 1970) .............. 8, 11

US. v. Strother, 578 F.2d 397 (D.C. Cir., 1978)

U.S. v. Timmreck, ...... USS. ....... 99 S.Ct. 2085 (1979) .. 11

US. v. Titus, 576 F.2d 210 (CA 9, 1978) cnc eee. 9, 13

Williams v. Florida, 399 U.S. 78 (1970) o.o....-oe-ce-ceecceoc--. 12

Woodeock v. McCauley, 563 F.2d at 806 (CA ¢, 1977) .. 8,13

Statutes, Rules And Other Authorities

Constitution of the United States:

NS ROO ac 2

Sixth Amendment ... wessauuscnessdssvesceecencsccesseee: 3

PE Ie BI Bi hcs cbs ahs ecssescccudmisibuc ged. eens 3, 4

ee tne NORD ood Foo eo J

I at a 2

Sle Se, POR Pees 3,7

The American Jury, Kalven & Zeisel (1966) ............... 12

In THE

Supreme Court of the United States

Ocroser Trrm, 1979

No.

GREGORY SCAFIDI,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Gregory Scafidi petitions for a Writ of Certiorari to

review the Judgment of the United States Court of

Appeals for the Seventh Circuit.

OPINION BELOW

The order of the Court of Appeals (Group Appendix

A, infra, pp. Al-AQ) is not reported.

ee Ne

JURISDICTION

The order of the Court of Appeals for the Seventh

Circuit was entered on March 4, 1980. A timely Petition

for Rehearing was filed on March 12, 1980. On April 9,

1980 the Petiticn for Rehearing with en banc suggestions

was denied (App. B, infra). This petition is filed within

thirty (30) days of April 9, 1980 and the jurisdiction of

this court is invoked in accordance with 28 U.S.C.

§ 1254(1).

QUESTION PRESENTED

Whether it is of exceptional importance in the

administration of criminal justice within the federal

courts to determine the proper admonitions tc a

defendant, waiving a jury trial, where over 45 percent of

criminal trials in the federal courts from June 30, 1978

to June 30, 1979 were bench trials?!

CONSTITUTIONAL PROVISIONS

AND RULES

The federal Constitution contains two (2) provisions

relating to the subject. Article 3, § 2, Cl. 3, provides:

“The trial of all crimes, except in cases of

impeachment, shall be by jury. . .”

* * *

!_ Cf., Annual Report, Administrative Office of the United

States Courts (App. C, infra).

Som ae RR

a on

The Sixth Amendment provides:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy: and public trial, by an

impartial jury .. .”.

Rule 23, Fed.R.Crim.Proc., states:

Rule 23. Trial by Jury or by the Court

(a) Trial by Jury. Cases required to be tried

by jury shall be so tried unless the defendant

waives a jury trial in writing with the approval of

the court and the consent of the government.

(b) Jury of Less Than Twelve. Juries shall be

of 12 but at any time before verdict the parties may

stipulate in writing with the approval of the court

that the jury shall consist of any number less than

12 or that a valid verdict may be returned by a jury

of less than 12 should the court find it necessary to

excuse one or more jurors for any just cause after

trial commences.

out a jury the court shall make a general finding

and shall in addition, on request made before the

general finding, find the facts specially. Such find-

ings may be oral. If an opinion or memorandum of

decision is filed, it will be sufficient if the findings

of fact appear therein.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr.

26, 1976, eff. Oct. 1, 1977; Pub.L. 95-78, § 2(b), July

30, 1977, 91 Stat. 320.)

In pertinent part, 21 U.S.C. § 846 reads:

“Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable

by imprisonment or fine or both which may not

exceed the maximum punishment prescribed for

the offense, the commission of which was the object

of the attempt or conspiracy.”

STATEMENT OF THE CASE |

Gregory Scafidi (hereinafter petitioner) was charged in

a multi-count indictment on January 9, 1979 with drug

related offenses.? At all times herein pertinent petitioner

was represented by counsel. Commencing June 8, 1979

petitioner stood trial in the U.S. District Court, Chicago,

Illinois (Grady, J., presiding). On June 8, 1979 petitioner

and two (2) other co-indictees waived a ‘ury trial. The

totality of the colloquy as between the trial judge and

the three (3) defendants waiving the jury trial was as

follows:

“THE CouRT: So, as I understand it, then we

have three defendants who are going to trial, all

taking bench trials, and the Defendants Pestine and

Rodriguez are going to change their pleas.

Mr. CLAVELLI: That is correct, your Honor.

THE CourRT: Well, then, let’s do this first. Let’s

execute the jury waivers and let me ask the

Defendants Scafidi, Shemwill and Toomey to please

step forward.

Let’s see. This is Scafidi in the blue coat, and this

is Mr. Toomey and this is Mr. Shemwill.

You gentlemen all have a right to be tried by a

jury of 12 people who would determine whether you

are guilty or innocent of these charges. Do you

understand that, Mr. Scafidi?

Mr. SCAFIDI: Yes, I do.

THE CourT: And Mr. Shemwill?

Mr. SHEMWILL: Yes, I do.

2 O.R. 2 (original record). The multiple count indictment,

charged that petitioner conspired with others to deliver a

controlled substance in Chicago, Illinois on December 11, 1978

(Count 1, 21 U.S.C. § 846). In Count 4 of the same indictment

petitioner was charged with distributing the same controlled

substances alleged in Count 1 (21 U.S.C. § 846(a)1)).

—

THE CourT: And Mr. Toomey?

Mr. TOOMEY: Yes, sir.

THE CourT: On the other hand, you can be tried

by me, in which case there will be no jury and I

will not only decide what the law is, I will also

determine whai the facts are in the case. That’s

what the jury would do if there was a jury trial. If

there is no jury, then I do that, the fact finding.

Do you understand that?

Mr. SCAFIDI: Yes, sir.

Mr. TOOMEY: Yes, sir.

Mr. SHEMWILL: Yes, sir.

THE CouRT: Now, Mr. Scafidi, do you desire to

be tried by the Court rather than by a jury?

Mr. SCAFIDI: Yes, sir.

THE CourT: And Mr. Toomey, do you desire to

be tried by the Court rather than by a jury?

Mr. TOOMEY: Yes, sir.

THE Court: Mr. Shemwill, do you desire to be

tried by the Court rather than by a jury?

Mr. SHEMWILL: Yes, sir.

THE CourT: All right, then we will ask each of

the defendants who have so indicated to execute a

written waiver of trial by jury.

Mr. SAMUELS: Tendering our executed jury

waiver, your Honor, on behalf of Mr. Shemwill.

THE CourT: All right.

Mr. ACKERMAN: Likewise, on behalf of Mr.

Scafidi, if the Court please.

Mr. SUFFREDIN: And on behalf of Mr. Toomey,

your Honor.

THE CourT: All right, I have added my signa-

ture to each of those waivers and they may be filed.

Very well. I think we can excuse those three

defendants for about ten minutes. Why don’t you

come back at about 10:45.

Mr. SAMUELS: Thank you.” (Tr. 4-6)

An executed (written) jury waiver by petitioner is

found at O.R. 22 and a facsimile of that jury waiver is

reproduced at App. D, infra. While petitioner raises no

nll

question as to the sufficiency of the evidence, nonethe-

less, a short overview is presented. The government’s

evidence, during this bench trial, revealed that from late

November, 1978 to approximately December 11, 1978

certain undercover DEA agents had frequent contact

with co-indictees Rodriguez, Shemwill, Mustari and

Twomey. These individual defendants were jointly

responsible for two (2) separate (perhaps unrelated)

deliveries of PCP to a government undercover agent. One

delivery (for $800) was at the Bradley International

Airport, Boston, Massachusetts, on November 20, 1978

and a second delivery. took place in Chicago on

November 30, 1978 ($4200). The government offered no

evidence to tie the petitioner into either of these

deliveries. The evidence below revealed that on Decem-

ber 11, 1978 co-indictees Shemwill and Rodriguez

delivered a quantity of PCP to the government under-

cover agents at a restaurant near the O’Hare Airport.

The government alleged that petitioner made available

the drugs that were distributed on December 11, 1978 in

Chicago. Petitioner testified on his own behalf. Peti-

tioner agreed that he proffered to one of the co-indictees

(Pestine) a plastic bag but petitioner denied knowing the

contents therein.

The bench trial ended on June 12, 1979 and petitioner

was found guilty of both counts. On July 11, 1979

petitioner was sentenced to four (4) years in custody on

Count 1, with probation to follow on Count 4.3

Petitioner was represented by counsel at arraignment and

trial. Petitioner has been at large on an O.R. bond pending

disposition of this petition.

sib en

REASONS FOR GRANTING THE WRIT

The Court of Appeals, even while affirming, opined:

“While we do not believe that the colloquy in this

case was a model and that further questioning and

further explanation of the consequences of a decision

to waive a jury trial would help ensure that a waiver

is knowingly and voluntarily made, we find that it

satisfied the Scott rule.”

This court in Gannett Co., Inc. v. DePasquale, ..... USS.

Sadia , 99 S.Ct. 2898 (1979) ruled that neither the public

nor the press had a pure constitutional right to attend

excluded portions of a criminal trial. By way of dicta,

the court noted:

Thus, because of the great public interest in jury

trials as the preferred mode of fact-finding in

criminai cases, a defendant cannot waive a jury

trial without the consent of the prosecutor and

judge. Singer v. United States, supra, 380 U.S., at

38, 85 S.Ct., at 791; Patton v. United States, supra,

281 U.S., at 312, 50 S.Ct., at 263. But if the

defendant waives his right to a jury trial, and the

prosecutor and the judge consent, it could hardly be

seriously argued that a member of the public could

demand a jury trial because of the societal interest

in that mode of fact-finding. Cf. Fed.Rule Crim.

Proc. 23(a) (trials to be by jury unless waived by a

defendant, but the court must approve and the

prosecution must consent to the waiver). 99 S.Ct. at

2907.

In Gannett ante, the court had no occasion to review

either the “elements” of a jury waiver ... or the

‘ Cf., se 13 A-4, infra. The Circuit Court reference to S-ott

refers to U.

S. v. Scott, 583 F.2d 362 (C.A. 7, 1978).

confusion within the circuits regarding the necessary

components of a valid jury waiver. The court, in Adams

v. U.S. ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236 (1943)

reversed the Circuit Court. That court (126 F.2d 774)

found that the lay-defendant did not have the power to

waive a jury within the federal district courts. This

court (in a 5-4 decision) ruled to the contrary. The court

said:

We have already held that one charged with a

serious federal crime may dispense with his Consti-

tutional right to jury trial, where this action is

taken with his express, intelligent consent, where the

Government also consents, and where such action 1s

approved by the responsible judgment of the trial

court. Patton v. United States, 281 U.S. 276, 50 S.Ct.

253, 74 L.Ed. 854, 70 A.L.R. 263. And whether or

not there is an intelligent, competent, self-protecting

waiver of jury trial by an accused must depend u

at _— circumstances of each case. (317 U.S. at

The last sentence in Adams has provided the impetus

for the disarray within the several circuits. Some courts

have likened Rule 23 to Rule 11, F.R. Cr. Pro.5 Another.

court has suggested the use of 28 U.S.C. § 2255 in a jury

waiver contest (U.S. v. Hunt, 413 F.2d 983 at 984, (C.A.

4, 1969). Some courts have suggested that the trial judge

inquire into the reasons and motives behind the jury

waiver (Woodcock v. McCauley, 563 F.2d 806 at 807 (C.A.

7,. 1977) while other courts have found that inquiries

regarding coercion or promises in connection with a jury

waiver, are seemingly beyond the parameters of Rule 23

(cf., U.S. v. Mitchell, 427 F.2d at 1281-1282 (C.A. 8,

° U.S. v._Straite, 425 F.2d 594 at 595 (D.C., 1970); U.S. v.

Strother, 578 F.2d 397 at 404-405 (D.C., 1978); Estrada v.

(x .") sia 255 (C.A. 7, 1972); U.S. v. Scott, 583 F.2d 362

—$-

1970). Dranow v. U.S., 325 F.2d 481 at 483, (C.A. 8,

1963}.

Rule 23 considers the possibility of “special findings”

in a case trial without a jury. In Howard v. U.S., 423

F.2d 1102 (C.A. 9, 1970) the court reversed the drug

conviction where that jury waiver was conditioned on

the waiving of the trial court’s finding of “special facts”

(523 F.2d at 1104).§

Some courts, while declining to reverse bench trial

convictions, where the jury waiver question was raised,

pointed out, while affirming, that the trial judge told a

defendant of the “advantages” of having a jury trial.’

Recently, the court granted a new trial in U.S. v.

Lockwood, 604 F.2d 7 (C.A. 5, 1979). While granting a

new trial, that court strictly construed Rule 23, as

follows:

“The trial below took place without a jury despite

the absence of a written waiver by the defendant.

Fed.R.Crim.P. 23(a) required this case to be tried

by jury ‘unless the defendant waive[d] a jury trial

in writing with the approval of the court and the

consent of the government.’ We need not consider

whether an oral waiver will suffice, cf. Horne v.

United States, 264 F.2d 40, 41-42 (5th Cir.), cert.

denied, 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549

(1959), because this record contains nothing that

vould indicate that the defendant, by his words or

conduct, waived his right to a trial by jury. We

reject the Government’s invitation to remand the

case for the limited purpose of holding a hearing to

determine whether a waiver in fact occurred. The

® In accord: U.S. v. Livingston, 459 F.2d 797 (C.A. 3, 1972)

(en banc) and U.S. v. Morvis, 263 F.2d 594 (C.A. 7, 1959).

7 U.S. v. Titus, 576 F.2d 210 at 211, (C.A. 9, 1978); U.S. v.

Livingston, 459 F.2d at 799 (C.A. 3, 1972) (dissenting judge, en

bane decision).

bella

appellant is entitled to a new trial before a jury

unless he elects to proceed before the court in a

bench trial under rule 23(a).” 604 F.2d at 8(C.A. 5,

1979)

This petition provides a vehicle for the court to decide

the propriety and scope of the Rule 23 admonitions. It is

exceptionally important in light of the fact that from

June, 1978 to June, 1979 there were 6,799 completed

federal criminal trials. Of that number 3,132 were non-

jury (cf., App. C, infra).

ARGUMENT

Our research has failed to disclose any recent decision

by this court touching on the parameters of Rule 23,

save for Gannett, ante (99 S.Ct. at 2907). The petition at

bar represents an example of the decisional/circuit

uncertainty as regarding this court’s decision in Adams.®

The heart of the matter is as follows:

(a) Need the trial judge personally admonish the

defendant regarding the giving up of a jury trial?

(b) If yes, what is the acceptable scope of the

admonitions from the trial judge to the defendant?

It is the view of the petitioner that the trial judge

must carefully and fully admonish the jury-waiving

defendant. The admonitions must parallel Rule 11.

Certainly McCarthy provides viable insight into the

interplay as between the trial judge and the defendant.

8 317 US. 269, 63 S.Ct. 236 (1943).

* In McCarthy v. U.S., 394 U.S. 459, 89 S.Ct. 1166 (1969) the

court ruled (under its supervisory codacrads that a valid Rule

11 guilty plea must carry with it personal admonitions from

(Footnote continued on following page)

pa, ae

The spectrum of circuit cases may well cause the

government to agree that this case is appropriate for

review. In U.S. v. Scott, 583 F.2d 362 (C.A. 7, 1978) the

court while affirming a conviction found, that under its

supervisory powers, cases heard after October 1, 1978

must demonstrate that the trial judge perform admoni-

tions which parallel Rule 11... in order that the waiver

of the jury trial be considered valid (id. at 364). At least

one other circuit finds the parallel between Rule 11 and

Rule 23 a matter akin to necessity (U.S. v. Straite, 425

F.2d 594 at 595 (D.C. Cir., 1970); U.S. v. Strother, 578

F.2d 397 at 404-405 ").C. Cir., 1978) ).

Adding to the orbit of uncertainty we find that the

“special findings” provisions of Rule 23(c) have added

additional concern to courts of review. For example, in

U.S. v. Livingston, 459 F.2d 797 (C.A. 3, 1972) (en banc)

that court reversed the conviction because the trial court °

conditioned the non-jury trial on a waiver of “special

finding” (id. at 798). Similar reversals are recorded in

Howard v. U.S., 423 F.2d 1102 (C.A. 9, 1970) where that

court reversed the federal drug conviction where the

trial judge conditioned the jury waiver upon the

defendant’s withdrawing the request for special findings

... at the urging of the trial judge (423 F.2d at 1104).

The Seventh Circuit reached a similar result in U.S. v.

9 continued

the trial court to the guilty pont defendant. In U.S. v.

Timmreck, ..... US. ..... , 99 S.Ct. 2085 i979) the court

reaffirmed McCarthy suggesting that Rule 11 deficiencies be

raised on direct appeal (99 S.Ct. at 2087). Of course, the

petition at bar represents a direct opyee as — toa

—— for collateral relief under 28 U.S.C. of 55 (cf., in

U.S. v. Hunt, 413 F.2d 983 at 984 (C.A. 4, 1969) that court

suggested that the invalidity of a jury waiver could be raised

on §2255)). Such an approach would only foster the

perpetuation of litigation.

neon

Morris, 263 F.2d 594 (C.A. 7, 1959). These decisions

demonstrate that a literal reading of Rule 23(c)

mandates reversal where the rule is not followed by the

trial judge. The difficulty with all this is simply that

Rule 23(a) sets out no procedural approach for an

intelligent and voluntary jury waiver (See Adams, 317

U.S. at 278). In Adams the court stated that the validity

of the jury waiver will depend upon the unique

circumstances of EACH CASE ... and the waiver must

be express, intelligent, and competent (317 U.S. at

278). Rule 23(a) . . . lacks the same directives.

As our statement of the case points out (pp. 4-6) the

petitioner was not alone while waiving the jury. Two (2)

co-indictees were likewise waiving their trial-jury rights

during the same colloquy.’ The court might find it

uncomfortable for three (3) indictees to be intelligently,

knowingly, understandably and voluntarily waiving a

jury trial (and all the Sixth Amendment protections that

flow therefrom) with barely two (2) transcript pages.

Surely the court could have considered, indeed should

have considered, both the motives and the reasons, for

0 In U.S. v.. Fels, 599 F.2d 142 (C.A. 7, 1979) the court

reversed a guilty plea federal drug conviction finding, inter

alia, that the gece | of eng. | pleas from multiple defendants

without really singling out the Rule 11 admonitions was, and

is, fraught with the possibility of gross rng omega | So

it is, in our view, with taking jury waivers from multiple

defendants without extensive admonition(s) and a piercing

inquiry into the background and reasons for same. In The

American Jury (Kalven & Zeisel) (1966) an erudite discussion

contains the fact that defense counsel places great emphasis

on the “cost-factor” as between jury and non-jury trials (pg.

27, n. 27). The same study shows that there is a direct

correlation between a bd plea and a non-jury trial (pg. 26).

This same study (The American Jury) has been referred to by

the court in Spencer v. Texas, 385 U.S. 554 (1967); U.S. v.

Jackson, 390 U.S. 570 (1968); Williams v. Florida, 399 U.S. 78

(1970); Duncan v. Louisiana, 391 U.S. 145 (1968).

om. Yael

the jury waiver. In Woodcock v. McCauley, 563 F.2d 806

(C.A. 7, 1977) the court reversed the denial of habeas

relief where a coerced jury waiver was alleged. The

court, in Woodcock, pointed out:

The court further inquired of Mr. Woodcock

whether any “threats” or “promises” had been made

to him to induce his waiver, to which Mr. Woodcock

responded “no.” The court did not ask Mr. Wood-

cock why he was waiving his right to jury trial, nor

did Mr. Woodcock volunteer such information. (563

F.2d at 807)

Additional authorities discounting the need for jury

waiver motives include U.S. v. Mitchell, 427 F.2d at

1281-1282 (C.A. 3, 1970) and Dranow v. U.S., 325 F.2d

481 (C.A. 8, 1963).

In both U.S. v. Titus, 576 F.2d 210 (C.A. 9, 1978) and

U.S. v. Livingston, 459 F.2d at 799 (C.A. 3, 1972) (en

banc, dissenting judge) the court considered, as relevant

on the jury waiver question, the fact that the trial judge

told each of those defendants about “the advantages of a

jury trial” (576 F.2d at 211; 459 F.2d at 799). Rule 23(a)

. . . does not at all consider the “advantages” of a jury

trial.

In U.S. v. Reyes, 603 F.2d 69 (C.A. 9, 1979) the court

reversed a conviction by a jury of less than twelve (12).

While discussing Rule 23 the court offered the following:

The function served by questions from the trial

judge in open court on the record is most apparent

in the procedures governing acceptance of guilty

pleas, see Fed.R.Crim.P. 11. Similarly, courts dis-

cussing the validity of a defendant’s waiver of a

jury trial under-Fed.R.Crim.P. 23(a) have empha-

sized the importance of detailed questioning of the

defendant in open court at the time of the waiver.

See, eg., United States v. David, 167 U.S.App.

ee ee

D.C. 117, 122-128, 511 F.2d 355, 360-62 (1975).

Indeed, even when a defendant has signed a written

stipulation waiving his right to a jury trial, courts

have recognized that

it is better practice for a district judge, when

advised by a defendant that he desires to waive

his right to a jury trial, to interrogate the

defendant so as to satisfy himself that the

defendant is fully apprised of his rights and

freely and voluntarily desires to relinquish

them. Such an interrogation would provide the

district judge with an additional factual basis

on which to grant or withhold his approval of

the waiver.

United States v. Hunt, 413 F.2d 983, 984 (4th Cir.

1969). (605 F.2d at 71)

Once again, we point out that another circuit court

finds a parallel as between Rule 11 and Rule 23 (thus

the Ninth Circuit joins the Seventh and D.C. Circuits).

On the balance, the petitioner presents a question of

exceptional importance to the administration of criminal

justice in the federal courts. The composite uncertainty

of Rule 23 application merits the granting of this

petition.

—15—

_ CONCLUSION

SEE

The petitioner at bar respectfully urges that this court

grant this petition for certiorari and vacate the order of

the circuit court affirming the conviction and sentence.

Respectfully submitted,

ALLAN A. ACKERMAN, ESQ.

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

(312) 332-2863

Attorney for Petitioner,

Gregory Scafidi.

GROUP

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDICES

Page

— Order Below, dated

FON BD TID vvccccvticsinersccsnens A-1

— Order Denying Rehearing

dated April 9, 1980 ............. A-10

— Graph Re: Jury and Non-

Jury trials reproduced

from Administrative Office

of the United States Courts,

Annual Reporte. ............:<c0..s... A-11

— Facsimile of Jury Waiver

Form as used in the case

I incuniebe ae A-13

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APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Argued January 21, 1980)

March 4, 1980.

Before

Hon. Tuomas E. Farrcump, Chief Judge

Hon. Hartineton Woon, Jr., Circuit Judge

Hon. Ricnarp D. Cupany, Circuit Judge

Untrep States Or America,

Plaintiff-Appellee,

Nos. 79-1812 and vs.

79-1826

Grecory ANDREW Scaripi and

Epwin SHEMWILL,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78-CR-909—Joun F. Gravy, Judge.

ORDER

Defendants, Gregory Scafidi and Edwin Shemwill, appeal

their convictions following a bench trial for unlawfully

distributing and possessing with intent to distribute a con-

trolled substance in violation of 21 U.S.C. § 841(a)(1), and

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for conspiring to commit the same offense in violation of

21 U.S.C. § 846. Both defendants argue on appeal that the

court’s on the record questioning concerning each defend-

ant’s waiver of a jury trial was inadequate. Defendant

Scafidi argues further that the. evidence showed that he

was involved in only a small separate conspiracy, not the

single overall conspiracy charged in the indictment, and

this variance between indictment and proof requires re-

versal. As a final argument Scafidi contends that the trial

court committed reversible error in refusing to grant his

motion for a severance. We affirm.

Jury Waiver

Before trial, the defendants expressed a wish to waive

their right to a jury trial.1 Judge Grady and the govern-

ment approved the signed jury waiver of each defendant

as required by rule 23(a) of the Federal Rules of Crim-

inal Procedure.2 Judge Grady briefly interrogated each

defendant concerning his decision to waive a jury trial.8

1 A third defendant, Terrence Toomey, also waived a jury trial.

The court found Toomey not guilty.

2 Rule 23(a) provides:

(a) Tran By Jury. Cases required to be tried by jury

shall be so tried unless the defendant waives a jury trial

in writing with the approval of the court and the consent of

the government.

3 This interrogation at the trial occurred as follows:

The Court: So, as I understand it, then we have three defend-

ants who are going to trial, all taking bench trials, and the De-

fendants Pestine and Rodriguez are going to change their pleas.

Mr. Clavelli: That is correct, your Honor.

The Court: Well, then, let’s do this first. Let’s execute the

jury waivers and let me ask the Defendants Scafidi, Shemwill and

Toomey to please step forward.

Let’s see. This is Scafidi in the blue coat, and this is Mr.

Toomey and this is Mr. Shemwill.

(footnote continued on following page)

WO et tee eo

RAS = | Ena ABS A NO De Hie kage Be

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The defendants contend, however, that this interrogation

was inadequate to ensure that the waiver was informed and

intentional, and that it was not in compliance with this

circuit’s supervisory rule on jury waivers announced in

United States v. Scott, 583 F.2d 362 (7th Cir. 1978). The

3 Continued

You gentlemen all have a right to be tried by a jury of 12

people who would determine whether you are guilty or innocent

of these charges. Do you understand that, Mr. Scafidi?

Mr. Seafidi: Yes, I do.

The Court: And Mr. Shemwill?

Mr. Shemwill: Yes, I do.

The Court: And Mr. Toomey?

Mr. Toomey: Yes, sir.

The Court: On the other hand, you can be tried by me, in

which case there will be no jury and I will not only decide what

the law is, I will also determine what the facts are in the case.

That’s what the jury would do if there was a jury trial. If there

is no jury, then I do that, the fact finding.

Do you understand that?

Mr. Scafidi: Yes, sir.

Mr. Toomey: Yes, sir.

Mr. Shemwill: Yes, sir.

The Court: Now, Mr. Scafidi, do you desire to be tried by the

Court rather than by a jury?

Mr. Scafidi: Yes, sir.

The Court: And Mr. Toomey, do you desire to be tried by the

Court rather than by a jury?

Mr. Toomey: Yes, sir.

The Court: Mr. Shemwill, do you desire to be tried by the

Court rather than by a jury?

Mr. Shemwill: Yes, sir.

The Court: All right, then we will ask each of the Defendants

who have so indicated to execute a written waiver of trial by jury.

Mr. Samuels: Tendering our executed jury waiver, your Hon-

or, on behalf of Mr. Shemwill.

The Court: All right.

Mr. Ackerman: Likewise, on behalf of Mr. Seafidi, if the Court

please.

Mr. Suffredin: And on behalf of Mr. Toomey, your Honor.

The Court: All right, I have added my signature to each of

those waivers and they may be filed.

defendants further argue that the colloquy in this case was

inadequate to guard against potential misunderstandings

and inducements which may prevent a waiving defendant

from being fully informed about the consequences of his

waiver.

The adequacy of a record for an appellate court to con-

clude that a jury waiver has been knowingly and inten-

tionally made has been before this court on several occa-

sions. Until August of 1978 we only noted the desirability

of the trial judge’s interrogation on the record of the

defendant, but we did not find any such interrogation re-

quired by rule 23(a) of the Federal Rules of Criminal

Procedure or the Constitution. See, e.g., United States v.

Kidding, 560 F.2d 1303 (7th Cir.), cert. denied, 434 U.S.

872 (1977); Estrada v. United States, 457 F.2d 255 (7th

Cir.), cert. denied, 409 U.S. 858 (1972). In August of 1978,

in United States v. Scott, this court, under its supervisory

power, announced a rule to be effective September 30, 1978.

We said, ‘‘[t]he rule now announced . . . requires that be-

fore 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 his waiver.

Once the rule goes into effect, failure to comply will eall

for reversal on appeal.’’ Scott, 583 F.2d at 364.

While we do not believe that the colloquy in this ease

was a model* and that further questioning and further

explanation of the consequences of a decision to waive a

jury trial would help ensure that a waiver is knowingly

and voluntarily made, we find that it satisfied the Scott

4 Defendants argue that the colloquy was insufficient because

the trial court did not ask the defendants why they were giving

up their right to trial by jury and what inducements or promises,

if any, had been made to them concerning the waiver. They also

contend that a fuller explanation of the consequences of such a

waiver is required. Particularly, they claim that a waiving de-

fendant must be informed that the jury must be unanimous to

convict. ij

Viel ON. aA on Fn sitll call ai 9 rasnblicitl see ie manda oi li ta Coad

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rule. The trial judge did question the waiving defendants

and explained to them that the waiver of a jury trial meant

that the judge would decide both the law and the facts

and would determine the guilt or innocence of each de-

fendant. There is no suggestion of anything in the record

which tends to impeach the voluntariness of the waivers

or the recitation by the defendants that they understood

what they were doing. Absent such a suggestion® Scott

does not require a more particularized interrogation.®

We disagree with the defendants’ contention that the

Scott rule mandates a particularized questioning compar-

able to that required for the acceptance of a guilty plea

under rule 11 of the Federal Rules of Criminal Procedure.

Rule 11 provides for extensive procedural safeguards for

a defendant who expresses a desire to forgo his trial com-

pletely and to accept the consequences of his guilt. In

Scott we only indicated that, analogous to rule 11, a trial

judge must interrogate on the record a defendant who

wishes to waive his right to a jury trial. Scott did not re-

quire the elaborate safeguards of rule 11.

Single Ongoing Conspiracy

Defendant Scafidi next claims that the evidence adduced

at trial showed that he was only involved in one incident

of distributing phencyclidine (PCP), a controlled substance

5 We do not find persuasive defendants’ suggestion that when

there are multiple defendants simultaneously waiving a jury trial