United States Court of Appeals
For the First Circuit
Nos. 05-2065
05-2129
UNITED STATES OF AMERICA,
Appellant/Cross-Appellee,
v.
JOHN FRECHETTE,
Defendant, Appellee/Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellant/cross-
appellee.
John Paul DeGrinney, with whom DeGrinney Law Offices was on
brief, for appellee/cross-appellant.
William S. Harwood, Valerie A. Wright, Verrill Dana, LLP,
Dennis Henigan, Elizabeth Haile, and Brady Center to Prevent Gun
Violence on brief for Brady Center to Prevent Gun Violence,
Southern Maine Chapter of Million Mom March, Maine Citizens Against
Handgun Violence, Maine Coalition to End Domestic Violence,
National Council of Women's Organizations, Chief Mathew Baker,
Chief Timothy Burton, Sheriff Mark Dion, Chief Edward Googins,
Chief William Welch, and Chief Don Winslow, amici curiae.
August 2, 2006
LYNCH, Circuit Judge. On October 16, 1996, John
Frechette was convicted in state court in Lewiston, Maine, after
pleading no contest to a charge that he had assaulted his then
live-in girlfriend. This offense was a misdemeanor, see Me. Rev.
Stat. Ann. tit. 17-A, § 207, and Frechette was sentenced to a jail
term of thirty days, which was immediately suspended, and to a one-
year term of probation.
In 1996 Congress passed, as part of the Omnibus
Consolidated Appropriations Act of 1997, the Lautenberg Amendment
to the Gun Control Act of 1968 ("the Amendment"), Pub. L. No. 104-
208, § 658, 110 Stat. 3009, 3009-371 to -372 (1996) (codified as
amended at 18 U.S.C. §§ 921, 922, 925). See United States v.
Hartsock, 347 F.3d 1, 4-5 (1st Cir. 2003). The Amendment was
intended, in part, to address the growing national recognition of
the importance of deterring domestic violence. See id. at 5
(citing sources). It expressed Congress's recognition that
firearms were frequently used in domestic violence attacks. See
id.
Congress also recognized that there was a loophole in the
law, which it moved to close. Although earlier law had restricted
the possession of firearms by those convicted of domestic violence
felonies, no such restrictions existed as to possession of firearms
by persons convicted of domestic violence misdemeanors. See id.
The Amendment eliminated this disparity. Under 18 U.S.C.
-2-
§ 922(g)(9), it is now unlawful for a person "who has been
convicted in any court of a misdemeanor crime of domestic violence"
to, inter alia, "possess in or affecting commerce, any firearm or
ammunition." The statute defines "misdemeanor crime of domestic
violence" as an offense that:
(i) is a misdemeanor under Federal, State, or
Tribal law; and
(ii) has, as an element, the use or attempted
use of physical force, or the threatened use
of a deadly weapon, committed by a current or
former spouse, parent, or guardian of the
victim, by a person with whom the victim
shares a child in common, by a person who is
cohabiting with or has cohabited with the
victim as a spouse, parent, or guardian, or by
a person similarly situated to a spouse,
parent, or guardian of the victim.
18 U.S.C. § 921(a)(33)(A). This provision is subject to some
affirmative defenses, two of which are described below and are
involved in this appeal.
On February 9, 2005, a federal grand jury returned a
superseding indictment charging Frechette with having "knowingly
possessed in and affecting commerce a firearm, specifically a
Phoenix Arms, .22 caliber pistol," in violation of 18 U.S.C.
§§ 922(g)(9) and 924(a).1 There seems to be little dispute
Frechette had a firearm; his main defense was that his misdemeanor
1
18 U.S.C. § 924(a) sets out the penalties for, inter
alia, the knowing violation of § 922(g).
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domestic violence conviction did not count as a predicate offense
within the meaning of the statute.
Frechette did not argue that his 1996 Maine offense was
not a "misdemeanor crime of domestic violence," as defined at 18
U.S.C. § 921(a)(33)(A). Instead, he moved to dismiss the
indictment on the basis that the 1996 offense did not count as a
"conviction" within the meaning of 18 U.S.C. § 921(a)(33)(B)(i)(I)
and (II), because it was secured without his having "knowingly and
intelligently waived [both] the right to counsel," 18 U.S.C.
§ 921(a)(33)(B)(i)(I), and "the right to have the case tried by a
jury," id. § 921(a)(33)(B)(i)(II).
The text of the affirmative defenses Frechette invoked
provides:
(i) A person shall not be considered to have
been convicted of [a misdemeanor crime of
domestic violence] for purposes of this
chapter, unless --
(I) the person was represented by
counsel in the case, or knowingly and
intelligently waived the right to
counsel in the case; and
(II) in the case of a prosecution for
an offense described in this paragraph
for which a person was entitled to a
jury trial in the jurisdiction in which
the case was tried, either
(aa) the case was tried by a jury,
or
(bb) the person knowingly and
intelligently waived the right to
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have the case tried by a jury, by
guilty plea or otherwise.
Id. § 921(a)(33)(B)(i).
The statute also sets forth another affirmative defense,
which is set out just below those already described. See id.
§ 921(a)(33)(B)(ii). That defense is not at issue here, but is
pertinent to understanding the provisions that are at issue:
(ii) A person shall not be considered to have
been convicted of such an offense for purposes
of this chapter if the conviction has been
expunged or set aside, or is an offense for
which the person has been pardoned or has had
civil rights restored (if the law of the
applicable jurisdiction provides for the loss
of civil rights under such an offense) unless
the pardon, expungement, or restoration of
civil rights expressly provides that the
person may not ship, transport, possess, or
receive firearms.
Id.
In response to Frechette's motion to dismiss the
indictment, the government entered into evidence a transcript of
Frechette's October 16, 1996 state-court appearance on the assault
charge. The transcript showed that the state court conducted a
"mass arraignment," in which it brought a large group of defendants
into the courtroom and advised them collectively about their
rights. Frechette does not dispute that he was among that group of
defendants.
Among other things, the court informed Frechette and the
others that they had the right to a jury trial:
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Now here are your rights. Since you're here
on a criminal charge, I want to advise you,
first and foremost, that you're all presumed
innocent until proven guilty. Under our
system of justice, and the state and federal
constitution[s], you are entitled to a trial
by judge or jury. You are entitled to have
the State, and by the State, I mean the law
enforcement agency that has arrested you and
charged you with a crime, to come to court and
prove their case to a judge or jury. . . .
The court also informed the group of defendants that each
of them had the right to counsel:
The third right and the last right that I want
to explain to everybody is your right to an
attorney. If any of you are here and there is
a probability or a possibility that you could
be facing jail if you are convicted of the
crime that you are being charged with here, I
would advise you to get a lawyer or get legal
advice. Also, if you can't afford a lawyer,
depending on your financial circumstances, you
can ask me to appoint a lawyer at the State
expense for you. Here's how that happens.
You let me know. I'm obviously going to let
you know how serious the offense is and you
are going to be asked about whether you are
going to represent yourself, hire a lawyer, or
ask for a court appointed lawyer. If you ask
for a court appointed lawyer, you're gonna be
screened this morning by a financial screening
officer who will interview you and decide
whether you meet the guidelines for a court
appointed lawyer. If you meet the guidelines,
a lawyer will be appointed who practices
within our jurisdiction here. . . . If you
don't qualify, that means you will have to
hire your own lawyer or represent yourself.
Please understand the case doesn't go away
because you don't get a court appointed
lawyer. You still have to face the
charges. . . .
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Finally, the court explained to the group that each
defendant could enter one of three pleas, and that each would waive
the rights to a trial and to counsel by pleading "guilty" or "no
contest":
I am going ask you to enter one of three
pleas: Guilty, Not Guilty, No Contest. Guilty
means what it says. It means that you will end
up saying "I'm Guilty" - you admit the charge
and we will impose a sentence this morning.
If you plead Not Guilty, you are asking for a
trial and I will give you a date for your
trial. If you plead No Contest that means
that you don't want to plead Guilty, but you
don't want a trial and you want to dispose of
the matter and you want to get rid of it
today. There is still a conviction. In other
words, I make a finding of guilt. The only
difference is that you haven't pled guilty,
you're still convicted without a trial. Those
of you who plead Guilty and those of you who
plead No Contest waive your right to a trial.
Obviously, you're not going to have a trial.
You waive your right also to get the advice of
a lawyer, so please understand those
consequences before you decide to plead
Guilty. . . .
. . . .
Now if you plead Not Guilty you'll get a date
for trial - I told you that. Then we're going
to hand you three pieces of paper . . . .
Page One is your ticket to a jury trial. Since
it's a criminal offense, you have a right to
say, "I want a jury trial instead of a judge
trial." The reason you're in district court
is because all of you are here on Class D and
E crimes. . . . If you want a jury trial, you
take the first piece of paper that is handed
to you this morning and within three weeks of
today's date, sign it and bring it to the
clerk in the lobby. . . . If that happens,
your case is transferred across the river and
goes to the Superior Court in Auburn and
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you'll be notified by that court of the time
and date of your trial by jury. If you don't
file it within three weeks, you have to be
here on the day I give you for a trial before
a judge in this court.
Following the mass arraignment, the court engaged in an
individual plea colloquy with Frechette. The court observed that
Frechette had already pleaded "not guilty" at his initial
appearance in state court and that he was presently before the
court on a bench warrant for not showing up for trial.2 The court
advised Frechette that he "ha[d] a right to either ask for a new
court date if you want to do so," at which point Frechette seems to
have interrupted and said "no." Frechette then indicated that he
wanted to change his plea to "no contest," and the court warned him
that by so doing, he would be waiving his "right to trial." The
court did not, however, as it had done earlier at the mass
arraignment, invoke the phrase "jury trial":
Court: All right, Mr. Frechette, you have
already pled Not Guilty. This was a bench
warrant for not showing up to your trial and
2
There is some confusion in the record about what happened
at Frechette's initial arraignment, which took place on December
13, 1995. According to the state court docket, Frechette pleaded
guilty on December 13 and the case was continued for sentencing to
November 7, 1996. However, the docket also indicates that a
hearing notice was issued to Frechette on September 3, 1996,
apparently ordering him to appear in court on October 3, 1996. He
failed to appear on that date, and a bench warrant was issued for
his arrest. He was then arrested on October 4 and brought into
court on October 16, whereupon the court stated, and Frechette did
not deny, that he had actually pleaded "not guilty" at the December
13 arraignment.
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you have a right to either ask for a new court
date if you want to do so.
Frechette: No.
Court: Do you want to change your plea?
Frechette: No contest.
Court: Do you want to change your plea to No
Contest? Do you understand by doing that you
waive your right to trial. Right?
Frechette: Yes.
In the course of the colloquy, the court also noted that
Frechette did not qualify financially for a court-appointed lawyer.
It informed Frechette that by pleading "no contest," he would be
waiving his right to counsel:
Court: Your right to the advice of a lawyer?
Does he get a court appointed lawyer? No, he
didn't qualify. Okay. Do you understand that
by pleading ["no contest"] that you waive your
right to trial and the advice of a lawyer?
All right?
Frechette: Yup.
Court: Okay. Do you want to have him waived,
please?
Court Officer: This is a waiver of counsel
I'm going to read to you[:]
"I am the person charged in this
proceeding. I am fully aware of my
right to have my attorney of my own
choosing or, if I am unable to afford
an attorney, to have an attorney
appointed by the court at public
expense. I do not desire an attorney
and hereby waive my right to be
represented by an attorney."
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Do you understand what I read to you, sir?
Having read that to you, you can sign right
here, please.
Frechette does not dispute that he signed the waiver after this
exchange.
Frechette conceded that the transcript provided by the
government was "[a]n accurate transcript of the plea colloquy and
advisement of rights for the predicate offense."3 Nevertheless, as
part of his motion to dismiss the indictment, he requested an
evidentiary hearing, at which he sought to present evidence, inter
alia, of his educational background and lack of sophistication
about the criminal justice system, the underlying facts of his
predicate domestic violence offense, his lack of recall about being
notified by the state court of his rights to counsel and to a jury
trial, and his financial circumstances at the time of his "no
contest" plea, which allegedly precluded him from securing paid
counsel. The magistrate judge, without ruling on Frechette's
motion to dismiss the indictment, rejected his motion for an
evidentiary hearing in a memorandum decision, to which Frechette
timely objected.
The district court subsequently allowed for oral
argument, both on the magistrate judge's order denying Frechette an
3
Frechette initially challenged the accuracy of the
transcript. But he made clear to the district court at oral
argument on his motion to dismiss that he was withdrawing his
objection.
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evidentiary hearing and on Frechette's motion to dismiss the
indictment. In an opinion issued on June 10, 2005, the district
court overruled Frechette's objection to the magistrate judge's
order denying him an evidentiary hearing, but allowed his motion to
dismiss. See United States v. Frechette, 372 F. Supp. 2d 669, 676
(D. Me. 2005). The court entered a judgment of discharge, pursuant
to Rule 32(k)(1) of the Federal Rules of Criminal Procedure, on
June 13, 2005.
In its June 10 opinion, the district court held: (1) that
the question of whether Frechette "knowingly and intelligently
waived the right to have the case tried by a jury, by guilty plea
or otherwise" under 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb), was to be
determined by the law of the state of the predicate conviction and
not by federal law, see Frechette, 372 F. Supp. 2d at 674; (2) that
if federal constitutional law were the appropriate standard, then
the waiver of jury trial would be valid, see id. at 675, but that
under the law of Maine, specifically State v. Rowell, 468 A.2d 1005
(Me. 1983), the waiver was invalid, see Frechette, 372 F. Supp. 2d
at 675; (3) that Frechette was not entitled to an evidentiary
hearing, see id. at 673; and (4) that Frechette had not shown that
his waiver of counsel in the predicate state proceeding was invalid
under 18 U.S.C. § 921(a)(33)(B)(i)(I), see Frechette, 372 F. Supp.
2d at 673. Each side appeals from the issue(s) it lost.
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The key question on appeal is whether the jury waiver
question is determined by reference to state law standards or to
the federal constitutional standard for waiver. We review this
question of statutory interpretation de novo. United States v.
Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir. 2003).
We hold that the validity of a waiver of jury trial for
purposes of 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb) is to be evaluated
under the federal constitutional standard and that Frechette
validly waived that right. We also hold that the district court
was correct to conclude that Frechette was not entitled to an
evidentiary hearing and that Frechette validly waived his right to
counsel. As a result, we reverse the district court solely on the
question of whether Frechette validly waived his right to a jury
trial, vacate the order of dismissal, and remand for proceedings
consistent with this opinion.
I.
Interpretation of Statutory Provision
Regarding Waiver of Jury Trial
Our task is to interpret the federal statute. A bit more
precision is in order. The statute does define the standard for
the waiver of the jury trial right: the standard is whether the
person "knowingly and intelligently" waived the right to trial by
jury. The question is whether the phrase "knowingly and
intelligently" is to be measured by federal or state standards.
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The question becomes meaningful in situations in which
the standards turn out to be different. We can think of at least
two such situations. The first is when the federal constitutional
standard has been met, but state law, applying a more defendant-
friendly standard of "knowingly and intelligently," has not been
met. The district court thought that was the situation here.4
The second (at least hypothetical) situation is one in
which the federal constitutional standard has not been met, but a
less defendant-friendly state standard for waiver has been met.
State law, after all, may give a defendant a right to a jury trial
where one is not mandated by the Sixth Amendment, see Duncan v.
Louisiana, 391 U.S. 145, 159-61 (1968) (drawing a distinction
between "serious crimes" and "petty offenses," and holding that the
Sixth Amendment entitles defendants to a jury trial only for
serious crimes); see also Baldwin v. New York, 399 U.S. 66, 69
(1970) (holding that "no offense can be deemed 'petty' for purposes
of the right to trial by jury where imprisonment for more than six
months is authorized"), and where a state has chosen to do so, it
is conceivable that it might allow a defendant to waive the right
by some procedure that is less stringent than that required under
4
Because we hold that the federal constitutional standard,
and not state standards, applies, it is unnecessary for us to
examine whether, as the government argues, the district court erred
in construing Maine law, as articulated in Rowell, as providing a
standard more favorable to defendants than that provided by the
federal Constitution.
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federal law for waiving a constitutional right to a jury trial for
serious crimes.5
Frechette's argument would have this court apply state
law standards for what constitutes "knowing[] and intelligent[]"
waiver, regardless of whether the particular state law being
invoked affords greater or lesser protection to defendants than
would the federal constitutional standard. Under his theory,
Congress would have to have intended for there not to be one
national standard for "knowing[] and intelligent[]" waiver, but a
large number of state-created standards, some of which may be more
defendant-friendly and others of which may be more defendant-
hostile.
The government's position is that the statute requires
the application of a uniform federal standard. Use of normal
principles of statutory interpretation favors this reading,
although the text is not so clear as to eliminate all questions.
Furthermore, Frechette argues that the because the statute does at
5
We make no comment as to the legality of such a practice.
We note only that at least one state has argued before its state
supreme court that this practice would be permissible under the
federal Constitution. See Mills v. Municipal Court, 515 P.2d 273,
2810 n.8 (Cal. 1973) (en banc) (noting the government's argument
"that the trial record need only show that a defendant was aware
of, and voluntarily and knowingly waived, his right to jury trial
in those misdemeanor proceedings which are 'non-petty' under
federal standards"; opining that "this contention may accurately
reflect the demands of the federal Constitution"; but rejecting the
government's position "pursuant to our supervisory authority over
state criminal procedures").
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times incorporate state standards, national uniformity in the
federal statutory scheme to control domestic violence is not the
consistent guiding principle throughout the statute. Still, we
agree with the government.
First, when a federal statutory term such as "knowingly
and intelligently" is used, ordinarily the interpretation is
supplied by federal law, not state law, absent some express
language to the contrary. See Jerome v. United States, 318 U.S.
101, 104 (1943) ("[W]e must generally assume, in the absence of a
plain indication to the contrary, that Congress when it enacts a
statute is not making the application of the federal act dependent
on state law."); see also Dickerson v. New Banner Inst., Inc., 460
U.S. 103, 119-20 (1983) (noting that "'in the absence of a plain
indication to the contrary, . . . it is to be assumed when Congress
enacts a statute that it does not intend to make its application
dependent on state law[,]'" because "the application of federal
legislation is nationwide and at times the federal program would be
impaired if state law were to control" (quoting NLRB v. Natural Gas
Util. Dist., 402 U.S. 600, 603 (1971))), superseded by statute,
Firearm Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449
(1986), as recognized in Molina v. INS, 981 F.2d 14, 22 (1st Cir.
1992); United States v. Ayala-Gomez, 255 F.3d 1314, 1319 (11th Cir.
2001) (per curiam) ("Words in federal statutes reflect federal
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understandings, absent an explicit statement to the contrary, even
if a state uses the word differently.").
Second, the very phrase "knowingly and intelligently" can
easily be read as a shorthand encapsulation of the federal
constitutional standard. See, e.g., Patton v. United States, 281
U.S. 276, 312 (1930) ("Not only must the right of the accused to a
trial by a constitutional jury be jealously preserved, but the
maintenance of the jury as a fact-finding body in criminal cases is
of such importance and has such a place in our traditions, that,
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."), abrogated
on other grounds by Williams v. Florida, 399 U.S. 78 (1970); accord
United States v. Leja, 448 F.3d 86, 96 (1st Cir. 2006) (upholding
validity of jury trial waiver, so long as it was "knowingly,
voluntarily, and intelligently" made); cf. Edwards v. Arizona, 451
U.S. 477, 482 (1981) (noting that "waivers of counsel must not only
be voluntary, but must also constitute a knowing and intelligent
relinquishment or abandonment of a known right or privilege");
Boykin v. Alabama, 395 U.S. 238, 242 (1969) (requiring that a plea
be "intelligent and voluntary"); Johnson v. Zerbst, 304 U.S. 458,
464 (1938).
Third, the structure of the statute favors the
government's construction that the jury waiver question is to be
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analyzed under the federal constitutional standard. The
affirmative defense under discussion has two subsections, (I) and
(II):
(i) A person shall not be considered to have
been convicted of [a misdemeanor crime of
domestic violence] for purposes of this
chapter unless --
(I) the person was represented by counsel
in the case, or knowingly and
intelligently waived the right to counsel
in the case; and
(II) in the case of a prosecution for an
offense described in this paragraph for
which a person was entitled to a jury
trial in the jurisdiction in which the
case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and
intelligently waived the right to
have the case tried by a jury, by
guilty plea or otherwise.
18 U.S.C. § 921(a)(33)(B)(i). The parties agree that in subsection
(I), which deals with the right to counsel, the term "knowingly and
intelligently waived" is to be analyzed under the federal
constitutional standard. Only in subsection (II), which deals with
the jury trial right, does Frechette argue that the very same term
is to be analyzed under state law. There are two prongs to his
argument. First, he points out that subsection (II) refers to "the
jurisdiction in which the case was tried" to determine whether
there was any jury trial right at all. Second, he notes that the
second affirmative defense to 18 U.S.C. § 922(g)(9), set out in the
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paragraph immediately below the affirmative defense under
discussion, excludes as predicate convictions those offenses for
which the person "has had civil rights restored (if the law of the
applicable jurisdiction provides for the loss of civil rights under
[such an] offense)." 18 U.S.C. § 921(a)(33)(B)(ii). The
reasoning, propounded by Frechette and employed by the district
court, is that if Congress explicitly referred to the law of the
jurisdiction in which the offense was committed to determine
whether there is a jury trial right at all and to determine whether
there is a loss of civil rights for a certain offense, Congress
implicitly meant all issues concerning the right to a jury trial,
including waiver, to be resolved by looking to state standards. On
balance, we think this approach is wrong.
On its face, the separate restoration of civil rights
provision itself has nothing to do with the right to a jury trial.
That Congress referred to state law to define whether
there was any jury trial right at all has an independent rationale.
As noted earlier, states may provide jury trials even when they are
not compelled by the federal Constitution to do so. It is easier
to administer the federal statute by simply accepting the states'
choice to give or not to give a jury trial; that is a background
fact against which the whole provision operates.
But, as this case demonstrates, it is not easier to
administer the federal statute by then looking to state law to
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determine what is meant by a "knowing[] and intelligent[]" waiver
of the right to a jury trial.6 A single, well-understood federal
standard for waiver of jury trial is clearly easier for federal
courts to apply than would be a patchwork of conflicting and
changing state laws. See Jerome, 318 U.S. at 104 (noting "the
desirability of uniformity in application" of federal criminal
laws); cf. Dickerson, 460 U.S. at 111-12 (holding that "[w]hether
one has been 'convicted' within the language of the gun control
statutes is necessarily . . . a question of federal, not state,
law, despite the fact that the predicate offense and its punishment
are defined by the law of the [s]tate").
In the statute, both references to state law (in relation
to whether a jury is available and to whether there is a loss of
civil rights) are isolated structurally and grammatically from the
subsection, § 921(a)(33)(B)(i)(II)(bb), setting forth the
requirement of a "knowing[] and intelligent[] waive[r]" of the jury
trial right. It is tempting to credit this arrangement as evidence
that Congress knew how to direct attention to state law standards
when it so desired and that it purposefully did not do so as to
waiver of the jury trial right.7 See Barnhart v. Sigmon Coal Co.,
6
Both parties contended at oral argument that Maine law
clearly favors their respective positions.
7
Despite the government's extensive use of legislative
history to support its position, we see no need to go down this
road to resolve the issue.
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534 U.S. 438, 452 (2002) ("[I]t is a general principle of statutory
construction that when 'Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.'" (quoting
Russello v. United States, 464 U.S. 16, 23 (1983))).
The text, while not entirely plain, is more consistent
with an intent by Congress that the term "knowingly and
intelligently" be interpreted by the federal constitutional
standard, and not by state standards. We have already mentioned
that federal statutes are usually defined by federal law, that
there is no express reference to state law in this particular
provision where one might otherwise expect one, and that the
statute is more easily and better administered by use of one
standard -- and a familiar one at that. The view that state law
governs the content of "knowing[] and intelligent[] waive[r]" of
the jury trial right also, as we have described, raises the risk of
lowering protections for defendants in situations in which state
law standards for waiver are more relaxed than those set forth by
the federal constitutional standard. That is all the more reason
to give the statute its most natural reading, that the "knowing[]
and intelligent[]" standard is to be determined by the federal
constitutional standard. This appears to be the practice of other
circuits. See United States v. Bethurum, 343 F.3d 712, 718 (5th
-20-
Cir. 2003) (applying, without discussion, federal constitutional
standard to the question of whether a jury trial waiver was
"knowing[] and intelligent[]" within the meaning of 18 U.S.C.
§ 921(a)(33)(B)(i)(II)(bb)); United States v. Jennings, 323 F.3d
263, 275-76 (4th Cir. 2003) (same).
II.
Waiver of Rights to Jury Trial
and to Counsel Under Federal Law
We analyze, under the federal standard, whether Frechette
"knowingly and intelligently" waived his rights to jury trial and
to counsel. The district court's alternative holding was that if
the federal standard were applied, then Frechette's waiver of jury
trial was valid. The court also held that Frechette's waiver of
his right to counsel was valid. "We review factual findings by the
district court for clear error" and "the determination of whether
a waiver of rights was voluntary de novo." United States v.
Bezanson-Perkins, 390 F.3d 34, 39 (1st Cir. 2004).
A. Waiver of Right to Jury Trial
Frechette's underlying state conviction was a "Class D"
misdemeanor, see Me. Rev. Stat. Ann. tit. 17-A, § 207, punishable
by a term of imprisonment of up to one year under Maine law, id.
§ 1252(2)(D). The Maine Constitution, like the federal
Constitution, provides the right to a jury trial for such an
offense. See State v. Sklar, 317 A.2d 160, 165 (Me. 1974)
(construing the Maine Constitution, see Me. Const. art. I, § 6, to
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guarantee the right to a jury trial in all criminal prosecutions);
see also Baldwin, 399 U.S. at 69 (holding that the Sixth Amendment
guarantees the right to a jury trial in the case of any offense for
which imprisonment for more than six months is authorized). A
defendant, however, may waive the jury trial right. Adams v.
United States ex rel. McCann, 317 U.S. 269, 275 (1942).
"[W]hether or not there is an intelligent, competent,
self-protecting waiver of jury trial by an accused must depend upon
the unique circumstances of each case." Id. at 278. "In making
this determination, courts may consider a variety of factors
showing that a waiver is validly given," including, but not limited
to, "the extent of the particular defendant's ability to understand
courtroom discussions regarding jury waiver." Leja, 448 F.3d at
93-94.
Here, the state court clearly advised all the defendants
present at the mass arraignment that each was "entitled to a trial
by a judge or jury," that each could exercise the right to a jury
trial by submitting a written request to the clerk within three
weeks, and that each would be giving up the right to any type of
trial by pleading "no contest" or "guilty." Frechette conceded
that he was present at the mass arraignment, and the district court
found that "he did hear the mass warning and nevertheless told the
[state court] judge that he wanted to plead ['no contest']."
Frechette, 372 F. Supp. 2d at 675-76.
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On appeal, Frechette points to his limited education and
argues that "there wasn't even an indication that [he] understood
either the facts or the law applicable"; however, nothing in the
record shows that he did not hear or understand the state court's
instructions. There was thus no clear error in the district
court's finding to the contrary.
That the state court did not specifically say the words
"jury trial" to him during his individual colloquy, after
repeatedly using it during the mass arraignment, does not render
his waiver invalid, so long as the waiver was knowingly and
intelligently made. See Leja, 448 F.3d at 93 (holding that even
"the absence of colloquy by itself does not require reversal where
the evidence establishes that the defendant's waiver [of jury
trial] was knowingly and intelligently made" (emphasis added)).
Based on this record, we conclude that Frechette "knowingly and
intelligently waived the right to have the case tried by a jury"
within the meaning of 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb).
B. Waiver of Right to Counsel
This leaves Frechette's cross-appeal, in which he argues
that his domestic violence misdemeanor does not qualify as a
predicate conviction because he was deprived of his right to
counsel.
"The Sixth Amendment safeguards to an accused who faces
incarceration the right to counsel at all critical stages of the
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criminal process. The entry of a guilty plea, whether to a
misdemeanor or a felony charge, ranks as a 'critical stage' at
which the right to counsel adheres." Iowa v. Tovar, 541 U.S. 77,
80-81 (2004) (citations omitted). The right to counsel, too, can
be waived. Id. at 81.
"Waiver of the right to counsel, as of constitutional
rights in the criminal process generally, must be a 'knowing,
intelligent ac[t] done with sufficient awareness of the relevant
circumstances.'" Id. (quoting Brady v. United States, 397 U.S.
742, 748 (1970)). "The constitutional requirement is satisfied
when the trial court informs the accused of the nature of the
charges against him, of his right to be counseled regarding his
plea, and of the range of allowable punishments attendant upon the
entry of a guilty plea." Id. The defendant invoking the
affirmative defense under 18 U.S.C. § 921(a)(33)(B)(i)(I) bears the
burdens of production and persuasion to show that he did not
knowingly and intelligently waive the right to counsel in the
predicate misdemeanor domestic violence offense. Hartsock, 347
F.3d at 9.
The district court found that Frechette had conceded that
the state court advised him of his right to counsel at his October
16, 1996 appearance. Frechette, 372 F. Supp. 2d at 671. At the
mass arraignment, the state court informed the defendants that each
had the right to an attorney, and that if "there is a probability
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or a possibility that you could be facing jail if you are convicted
of the crime that you are being charged with here, I would advise
you to get a lawyer or get legal advice." The court also told the
defendants that each could request court-appointed counsel,
provided that each qualified financially. Subsequently, in the
individual plea colloquy, the court inquired into Frechette's
eligibility for a court-appointed lawyer, noted that he did not so
qualify, and warned him personally that by pleading "no contest,"
he would "waive [his] right to . . . the advice of a lawyer."
Frechette indicated verbally that he understood, and he also signed
a written statement to that effect, which was also read aloud to
him.8 Frechette "kn[ew] what he [was] doing and [made] his choice
. . . with eyes open." Adams, 317 U.S. at 279.
Frechette argues, however, that his choice was
effectively made with his hands tied and so was involuntary. He
contends that the state court erred in determining that he did not
qualify financially for court-appointed representation. He points
to the state court docket, which shows that in his initial
appearance on December 13, 1995, he had requested court-appointed
counsel, but his motion was denied because his "income exceed[ed]
guidelines for court appointment." He alleges that his financial
circumstances changed for the worse after his initial appearance,
8
The signed waiver is not part of the record; however,
Frechette does not dispute that he signed it.
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such that at the time of his "no contest" plea in October 1996, he
should have been deemed eligible for court-appointed counsel.
He thus asked the federal district court, almost ten
years after the fact, to make an independent examination of his
financial circumstances at the time of his "no contest" plea to
determine whether he was, for all practical purposes, denied his
right to counsel because he was unable to afford one.9
The district court denied his request to reopen the issue
of his financial eligibility, and was correct in doing so. As
always, the decision to convene an evidentiary hearing is at the
discretion of the trial judge, reversible only if that discretion
was abused. See United States v. Panitz, 907 F.2d 1267, 1274 (1st
Cir. 1990). No such abuse took place here.
Frechette never challenged the state court's
determination, either at his December 1995 appearance or at his
October 1996 plea colloquy, that he was not eligible for
court-appointed counsel. His financial information as of the time
of the domestic violence conviction is not in the current record,
9
Although Frechette indicated in his request for an
evidentiary hearing that he intended to present evidence that "[h]e
does not recall being advised of his right to a trial by jury,"
his cross-appeal focuses solely on whether the district court erred
in not allowing him an evidentiary hearing on the waiver of counsel
issue. To the extent that he does raise an argument concerning the
appropriateness of an evidentiary hearing with respect to the jury
trial issue, it is waived for lack of appellate development. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").
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and Frechette's proffer of such information includes only his
hourly wage -- which, the district court observed, "provides no
information about other assets that might have been available to
[him] in 1996" or "about the 1996 cost of legal services in
Lewiston, Maine." Frechette, 372 F. Supp. 2d at 673. Finally, and
most importantly, the district court already had a transcript of
the plea proceedings, from which it could readily determine whether
Frechette had knowingly and intelligently waived his right to
counsel.
Nevertheless, Frechette argues that an evidentiary
hearing was required under our 2003 decision in United States v.
Hartsock, 347 F.3d 1. Frechette overreads Hartsock. In Hartsock,
we remanded to the district court for a hearing under Rule 104(a)
of the Federal Rules of Evidence, id. at 10, because the parties
did not have access to a transcript or a recording of the plea
proceedings and had agreed to allow the district court to hold a
Rule 104(a) hearing to recreate the state court record, id. at 4.
While Hartsock permits a district court to hold an evidentiary
hearing in such cases, it certainly does not compel a district
court to hold an evidentiary hearing, especially when a true and
accurate transcript of the relevant proceedings is available and is
a sufficient basis for determining whether the waiver of counsel
was knowing and intelligent.
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On the basis of the record before us, Frechette
"knowingly and intelligently waived the right to counsel," within
the meaning of 18 U.S.C. § 921(a)(33)(B)(i)(I).
III.
We reverse the district court on the question of whether
Frechette knowingly and intelligently waived his right to a jury
trial, affirm the district court's denial of Frechette's request
for an evidentiary hearing, affirm the district court's alternate
determination that under the federal constitutional standard
Frechette knowingly and intelligently waived his right to counsel,
vacate the order of dismissal, and remand for proceedings
consistent with this opinion.
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