US v. Laney, No. 15-10563 (2-5-18)(Hawkins w/Fletcher & Tallman).

The 9th reverses convictions based on ineffective jury waivers. Defense counsel’s stipulation that their clients waived their right to a jury trial on fraud charges. Counsel’s stipulations were electronically signed, and filed following a conference call with the court. There is no record that the defendants were present during these calls. The stipulation set forth reasons for a bench trial, including evidence issues, scheduling, and allowance for a joint trial, which permitted various defendant’s statements to come in against co-defendants as to avoid a Bruton problem.

The 9th concludes that the record does not adequately show the waivers were voluntary, knowing, and intelligent as required by Fed R Crim P 23(a)(1). Usually written waivers are required; an oral waiver is permissible if the record clearly reflects personal express consent, in open court, knowingly and intelligently given. A post-trial reconstruction of the record cannot substitute.  The stipulation here is “tantamount to an oral waiver by counsel outside the defendant’s presence, which our precedent deems insufficient.” 13. The error is structural and reversal and remand is required.

The 9th rejects the contention that the evidence was insufficient to support the convictions.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/05/15-10563.pdf