Filed: February 6, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4841
(3:05-cr-00313-JRS)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRYL BOYNES, JR.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed February 4, 2008, as
follows:
On the cover sheet, second line of the attorney information
section, the word “Special” is deleted.
On page 5, paragraph 2, line 18, the word “suggest” is
corrected to read “suggests.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4841
DARRYL BOYNES, JR.,
Defendant-Appellant.
Appeal from the United States District Court for
the Eastern District of Virginia, at Richmond.
James R. Spencer, Chief District Judge.
(3:05-cr-00313-JRS)
Argued: September 25, 2007
Decided: February 4, 2008
Before KING and GREGORY, Circuit Judges,
and Samuel G. WILSON, United States District Judge for
the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilson wrote the majority
opinion, in which Judge King joined. Judge Gregory wrote a dissenting
opinion.
COUNSEL
ARGUED: Robert Edwin Walker, Jr., Richmond, Virginia, for Appel-
lant. Richard Daniel Cooke, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. ON BRIEF: Chuck Rosenberg, United
2 UNITED STATES v. BOYNES
States Attorney, Alexandria, Virginia; Peter S. Duffey, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
OPINION
WILSON, District Judge:
The United States charged Darryl Boynes, Jr., in a three-count
indictment with conspiracy to distribute crack cocaine in violation of
21 U.S.C. § 846, distribution of crack cocaine in violation of 21
U.S.C. § 841, and use of a firearm to commit murder in furtherance
of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c) and
924 (j), a capital offense. The case was tried by the court following
a written motion to waive trial by jury, and the court found Boynes
guilty on all three counts. Months later Boynes claimed that his coun-
sel, not he, had waived trial by jury. Following a hearing, the court
found that Boynes, in fact, had knowingly and voluntarily waived his
right to trial by jury and sentenced Boynes to life plus 480 months.
Boynes raises the correctness of the district court’s finding that he
knowingly and voluntarily waived his right to trial by jury as the sin-
gle issue in this appeal. We affirm.
I
This case stems from a crack cocaine deal that degenerated into a
murder. On October 16, 2003, Boynes shot and killed William "Bike-
man" Jenkins on a Richmond street after Jenkins’ apparent attempt to
steal a small amount of cocaine from Boynes. Police arrested Boynes
on May 10, 2005 on a criminal complaint alleging drug distribution
and use of a firearm in the commission of a drug crime.
Boynes requested counsel, and the court appointed Peter Eliades.
Eliades represented Boynes at Boynes’ preliminary and detention
hearing. Within a month of that hearing, Boynes wrote a letter to the
court asking for new counsel, citing his "adversarial" relationship
with Eliades. The court relieved Eliades and appointed Jeffrey L.
Everhart as Boynes’ new counsel. Everhart negotiated a plea agree-
UNITED STATES v. BOYNES 3
ment that would have included a 35-year prison sentence but would
have avoided the death penalty. Boynes backed out of the plea agree-
ment on July 21, 2005, the day of the plea hearing. Six days later
Boynes appeared in court again to plead guilty, having signed a plea
agreement. Although Boynes said in open court that he was satisfied
with his counsel, he denied guilt, and the district court consequently
did not accept the guilty plea.
In August 2005, Boynes wrote a letter, nearly identical to the one
complaining about Eliades, complaining that Boynes and Everhart
had become "adversarial." Boynes filed other pro se motions, some
questioning Everhart’s performance. The court denied Boynes’
request for new counsel. On September 7, 2005, a grand jury indicted
Boynes on the present charges. The case was set for jury trial. On Jan-
uary 16, 2006, Everhart met with Boynes, and Boynes said he wanted
to waive his right to a jury and have his case tried by the judge.
Boynes and Everhart discussed Boynes’ reasons for this decision.
Everhart then filed a written motion to waive trial by jury, which was
not signed by Boynes. The United States did not object, and the court
granted the motion. Everhart’s later written correspondence and per-
sonal meetings with Boynes made explicit mention of the waiver,
including advice to make eye contact with the judge during trial.
Boynes made no complaint.
At trial, Boynes testified at length, as did police and eyewitnesses
to the murder. The district court found Boynes’ testimony incredible
and convicted him. Almost three months later, Everhart filed a motion
to withdraw, citing the fact that Boynes had filed a complaint with the
Virginia State Bar. The court appointed Mark Tyndall as Boynes’
third counsel. On July 26, 2006, Tyndall filed a pleading entitled "De-
fendant’s Position in Regards to Waiver of Jury Trial and Motion for
New Trial," which was the first mention to the district court of any
jury waiver issue. The district court held a hearing where Everhart
testified at length regarding Boynes’ insistence on waiving his jury
trial right. The court received in evidence letters and other documents
that Everhart sent to Boynes after Boynes requested the waiver. Ever-
hart’s letters and the copy of the court’s order granting the waiver all
explicitly mention the waiver, according to the transcript of the hear-
ing. Boynes did not testify. The district court found Boynes’ waiver
to be knowing, intelligent, and voluntary and denied the motion for
4 UNITED STATES v. BOYNES
a new trial. The court sentenced Boynes to life imprisonment plus 480
months. Boynes then brought this appeal.
II
Boynes contends that he did not knowingly, intelligently, and vol-
untarily waive his right to a jury trial. Cobbling together several
strains of argument, Boynes contends that without a "formal court
inquiry" he could not have knowingly, intelligently, and voluntarily
waived his right to a jury trial during the time that his relationship
with his attorney was "characterized by adversarial contentious inter-
actions." Although we reiterate our view that it is much preferable for
a district court to insure itself on the record before accepting the
defendant’s jury waiver, it is not a constitutional imperative. The con-
stitutional imperative is this, no less and no more: the waiver must be
knowing, intelligent, and voluntary. The district court’s findings of
historical fact are reviewed for clear error, though the ultimate ques-
tion of waiver is reviewed de novo. United States v. Khan, 461 F.3d
477, 491 (4th Cir. 2006) (citing United States v. Robertson, 45 F.3d
1423, 1430 (10th Cir. 1995), which more fully articulates the standard
of review). Accordingly, because we find no clear error in the district
court’s factual findings and we agree with the district court as to con-
stitutional sufficiency of the waiver on those facts, we affirm.
Rule 23(a) of the Federal Rules of Criminal Procedure provides
that "[i]f the defendant is entitled to a jury trial, the trial must be by
jury unless: (1) the defendant waives a jury trial in writing; (2) the
government consents; and (3) the court approves." The Sixth Amend-
ment requires that the waiver be knowing, voluntary, and intelligent.
Patton v. United States, 281 U.S. 276, 312-13 (1930) overruled on
other grounds by Williams v. Florida, 399 U.S. 78, 92 (1970). In
United States v. Hunt, 413 F.2d 983 (4th Cir. 1969) (per curiam), this
court specifically held that although it is undoubtedly the "better prac-
tice," neither Rule 23(a) nor the Sixth Amendment requires the dis-
trict court "to interrogate defendants as to the voluntariness of their
waiver of a jury trial . . . ." Id. at 983. In effect, compliance with Rule
23(a) was sufficient to support the waivers in the absence of evidence
that the waivers were not knowing, voluntary and intelligent.
Recently, this court reached a similar result. In United States v.
Khan, 461 F.3d 477, 491 (4th Cir. 2006), defendants argued that their
UNITED STATES v. BOYNES 5
"jury trial waiver was invalid because the district court did not obtain
a written waiver or otherwise conduct a colloquy on the record and
determine that their waiver was knowing, voluntary and intelligent."
In making that argument defendants primarily relied on United States
v. Robertson, 45 F.3d 1423 (10th Cir. 1995), and the suggestion of
other circuits that a "waiver presented by counsel is inadequate,
absent some other showing to satisfy an appellate court that it was
actually knowing, voluntary and intelligent." Khan, 461 F.3d at 491-
492. This court rejected the argument noting that "in this circuit . . .
we have not imposed such a requirement" but instead have held that
"while it would be ‘better practice’ for a district judge to interrogate
a defendant who claims through counsel that he wants to waive his
jury trial right, nothing in the applicable case law, Rule 23(a) itself,
or the Constitution requires it." Id. at 492.
Everhart testified at the post-trial hearing that Boynes insisted that
he waive trial by jury. Boynes believed he would have a better chance
because the court would better understand the self-interested motives
the cooperating witnesses would have in testifying against him. He
believed that the district court judge "based on his experience, know-
ing how the system works, would be less inclined to believe the testi-
mony of those individuals . . . ." J.A. 442. After discussing the
ramifications with Boynes, Everhart discussed the matter with the
government, the government agreed to waive, Everhart filed the req-
uisite written motion, the United States formally consented, the court
entered a written order granting the motion, and Everhart sent Boynes
a copy of that order. Not once did Boynes indicate surprise or protest
that he was being tried by the court, and he neither testified nor
offered one shred of evidence contradicting Everhart concerning the
waiver, although he certainly could have testified if he wanted. Hav-
ing a full understanding of the record, the district court found that
Boynes had knowingly and voluntarily waived his right to trial by
jury. Neither the Constitution nor this circuit’s precedent suggests that
the district court’s actions were deficient.
Boynes suggests that he "could not have" knowingly, intelligently
and voluntarily waived his right to a jury trial during the time that his
relationship with his attorney was "characterized by adversarial con-
tentious interactions."1 His conclusion, however, does not follow from
1
Boynes argued in the district court that he was entitled to trial by jury,
that the "waiver of such a fundamental right must be a knowing and
6 UNITED STATES v. BOYNES
his premise. A knowing, intelligent, and voluntary waiver and conten-
tious attorney-client interactions are not mutually exclusive. Although
there are no doubt circumstances calling into question the validity of
a jury waiver that would require reversal if not sufficiently resolved
by the district court,2 that is certainly not the case here. On this record
we are presented with a presumptively valid written waiver, a full
hearing on the validity of the waiver in open court, and a judicial find-
ing that the waiver is knowing, intelligent, and voluntary. The district
court noted there is "no evidence" that Everhart filed the motion to
waive jury trial without Boynes’ consent. On appeal, Boynes has still
not pointed to a scintilla of evidence that contradicts Everhart’s testi-
mony and the district court’s findings as to the circumstances sur-
rounding the waiver. We therefore find no clear error in the district
judge’s findings.
III
For the reasons stated, the judgment of the district court is
affirmed.
intelligent waiver," and that the record contained "no written or oral
waiver of a jury by the defendant himself." J.A. 428-29. Boynes argued
that he did not waive. Boynes never argued that he "could not have"
waived during the time that his relationship with his attorney was "char-
acterized by adversarial contentious interactions." Neither Boynes’
motion nor his argument in the district court even obliquely mentions or
characterizes Boynes’ relationship with Everhart. However, there is no
reason Boynes could not have made that argument if he intended it to be
the linchpin of his argument here. Boynes had new counsel, and his new
counsel had the benefit of the transcripts of the earlier proceedings. Had
he raised his current argument in the district court, we at least would
have the benefit of the district court’s perspective on the matter. Ordinar-
ily, failure to raise an argument below limits our review to plain error.
See United States v. Littleton, 76 F.3d 614, 618 n.7 (4th Cir. 1996).
Because, however, the district court’s decision survives de novo review
we find it unnecessary to apply the less demanding plain error analysis.
2
See, e.g., Wyatt v. United States, 591 F.2d 260, 265 n.5 (4th Cir.
1979) (noting that interrogations by district judges approving jury waiv-
ers in advance of trial might well develop facts that are critically impor-
tant to the waiver).
UNITED STATES v. BOYNES 7
AFFIRMED
GREGORY, Circuit Judge, dissenting:
Today, the majority affirms the district court’s decision that
Boynes, who was sentenced to life in prison plus 480 months, had
voluntarily waived his right to a jury. This Court has never held that
such a crucial determination of this inviolable constitutional right can
be made at a post-conviction hearing. To permit district courts to
determine whether defendants voluntarily waived their constitutional
right to a jury at a post-conviction hearing effectively reduces this
constitutional guarantee to a matter of credibility. The Supreme Court
has made clear that an express and intelligent consent by the defen-
dant must be determined prior to a bench trial. Thus, respectfully, I
must dissent.
The Constitution guarantees every defendant the right to a jury.
The Supreme Court has held that "[n]ot only must the right of the
accused to a trial by a constitutional jury be jealously preserved[, but]
before any waiver can become effective, the consent of government
counsel and the sanction of the court must be had, in addition to the
express and intelligent consent of the defendant." Patton v. United
States, 281 U.S. 276, 312 (1930) (emphasis added); see also, Adams
v. United States, 317 U.S. 269, 271 (1942) (holding that ". . . an
accused, in the exercise of a free and intelligent choice, and with the
considered approval of the court, may waive trial by jury . . . There
is nothing in the Constitution to prevent an accused from choosing to
have his fate tried before a judge without a jury . . ."). The Supreme
Court also counseled courts not to discharge their duty "as a mere
matter of rote but with sound and advised discretion, with an eye to
avoid unreasonable or undue departures from [jury trials] or from any
of the essential elements thereof, and with a caution increasing in
degree as the offenses dealt with increase in gravity." Id. (emphasis
added).
Prior to his arraignment, Boynes filed two letters pro se with the
district court requesting new counsel. Specifically, Boynes stated he
lost trust and confidence in his attorney and had concerns about their
adversarial attorney-client relationship. (J.A. 60, 62-63). At his
arraignment, Boynes requested a jury trial in open court. (J.A. 73).
8 UNITED STATES v. BOYNES
Subsequently, he filed two additional letters with the district court,
reiterating his concerns, including that his defense counsel was push-
ing him to plead guilty and that he was receiving ineffective assis-
tance of counsel. (J.A. 75-76, 118-119). Defense counsel filed a
motion to waive Boynes’s right to a jury. (J.A. 130). The motion was
not signed by Boynes and did not show that a copy was sent to him.
The Government consented and the district court granted the motion
without a hearing. (J.A. 132). At trial, Boynes raised no objections to
the bench trial.* After a half-day murder trial at which Boynes testi-
fied in his own behalf, the trial judge convicted Boynes. A few
months later Boynes filed a motion for a new trial on the grounds that
defense counsel had waived his right to a jury without his permission.
(J.A. 428-436). A hearing was held. At the hearing, defense counsel
testified that Boynes had requested a bench trial. Boynes did not tes-
tify. Based on defense counsel’s testimony, the district court found
that Boynes had waived his right to a jury and on that same day sen-
tenced him to life in prison plus 480 months. (J.A. 463).
Because Boynes stated in open court that he wished to have a jury,
the district court was required to seek a clear, affirmative acknowl-
edgment from Boynes that he did not want a jury. While there is no
per se rule in this Circuit requiring a colloquy, the Supreme Court
demands that the district court find that the defendant has voluntarily,
intelligently and knowingly waived his right to a jury before a bench
trial. See Patton, 281 U.S. at 312; Adams, 317 U.S. at 271. This cru-
cial determination cannot be accomplished at a post-conviction hear-
ing.
The facts in our other decisions on jury trial waivers are easily dis-
tinguished from the facts in this case. In United States v. Hunt, 413
F.2d 983, 983-84 (4th Cir. 1969), the defendants had signed the
waiver and were present in court when their attorneys presented it.
The waiver stated "that defendants were represented by counsel, had
been furnished with a copy of the indictment against them, had been
advised of the nature of the charges against them and had been
‘informed of their rights.’" 413 F.2d 983 (4th Cir. 1969). Unlike in
*Boynes was 19 years old when he was charged and had no criminal
record, therefore one could hardly argue that he was a savvy criminal
defendant. (J.A. 30, 461).
UNITED STATES v. BOYNES 9
Hunt, there was no communication directly from Boynes to the dis-
trict court that he wished to waive his right to a jury. In addition, the
waiver was not signed by Boynes nor did the court conduct a colloquy
prior to commencing the bench trial.
In Wyatt v. United States, the defendant requested a jury, then later
executed a written waiver. 591 F.2d 260, 263 (4th Cir. 1979). At the
same time, defense counsel certified that he had discussed and
advised Wyatt of his rights. The government consented to the waiver
and the court approved. Unlike Boynes, Wyatt never denied that he
had voluntarily waived his right to a jury. The same is true of the
defendants in United States v. Khan, 461 F.3d 477, 491-92 (4th Cir.
2006). Here, in contrast, whether Boynes voluntarily waived his right
to a jury is at the heart of the inquiry.
The majority correctly notes that Boynes could have testified at the
post-conviction hearing, but had he, it would have come down to
assessing the weight of his testimony. Whether one has waived his
right to a jury is too important to be left to a credibility judgment.
Accepting a waiver signed by defense counsel is insufficient to satisfy
the knowing, intelligent, and voluntary requirement, especially in
light of the clear adversarial nature of Boynes’s relationship with his
attorney, (see J.A. 46, 47, 48, 49.) The district court should have
determined that Boynes had expressly waived his right to a jury prior
to conducting the bench trial. Because the district court did not make
this determination prior to conducting the bench trial, Boynes faced
the Herculean challenge at a post-conviction hearing of convincing
the judge who had earlier found him not credible beyond a reasonable
doubt that he did not waive his right to a jury. Such an exceptional
burden should never attend the defendant’s fundamental right to a
jury.