Sunday, September 28th, 2008


United States v. Carmenate, No. 07-2421 (2d Cir. September 24, 2008) (Cabranes, Pooler, Katzmann, CJJ) (per curiam)

Carmenate was charged with bank fraud. His counsel, fearing the consequences of having the jury hear from a witness that he believed was biased, asked for a bench trial. The government agreed, and, at the court’s request, counsel submitted a written jury waiver that bore counsel’s signature, but not the defendant’s. The judge allocuted the defendant extensively, then accepted the waiver. He convicted Carmenate and sentenced him to forty-one months’ imprisonment.

On appeal, the circuit held that the jury waiver was adequate, even if the procedure was less than perfect. Carmenate was present when his counsel asked for a bench trial and when the court asked for a written waiver. He was also present when the judge reviewed the written request and was sufficiently allocuted. While it is true that the judge did not “explain the scope and contours of the right to trial by jury and the consequences of a waiver,” those warnings are not mandatory and not dispositive of a defendant’s understanding. As it happens, Carmenate had recently been convicted by a federal jury in another district on similar charges.

Moreover, there was no evidence that Carmenate was “incapable of clearly and independently expressing his wishes,” which might have led the court to conclude that his attorney did not accurately convey the decision to give up a jury trial. Here, there was every reason to take Carmenate’s colloquy with the judge at face value.

Finally, while the appellate court agreed that Rule 23(a) appears to require the defendant to sign the waiver, the absence of such a signature “will not constitute reversible error” where, as here, the record otherwise shows that the waiver was knowing, voluntary and intelligent.

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