NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 17, 2008
Decided January 7, 2009
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐1326
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 1:07‐cr‐00144‐WCG‐1
VICTOR M. JOHNSON,
Defendant‐Appellant. William C. Griesbach,
Judge.
ORDER
After a bench trial the district court found Victor Johnson guilty of conspiring to
distribute cocaine and crack cocaine, possessing with intent to distribute cocaine and crack
cocaine, and distributing cocaine. On appeal, Johnson argues that his waiver of his right to a
jury trial did not comply with procedural rules, and was not knowing and voluntary. We
affirm.
In May 2007, Johnson was arrested after traveling several times between Chicago, where
he met his supplier, and Green Bay, where he wanted to create a market to distribute cocaine
and crack. A grand jury returned a three‐count indictment charging him with conspiring to
No. 08‐1326 Page 2
distribute cocaine and crack cocaine, see 21 U.S.C. § 846, possessing with intent to distribute
cocaine and crack cocaine, see id. § 841(a)(1), and distributing cocaine, see id.
At a hearing before the district judge, Johnson waived his right to a jury trial. The court
stated at the outset that it had received communication from Johnson indicating that he wanted
to waive this right. When the court asked defense counsel if he had suggested the waiver to
Johnson, counsel said no, and added that Johnson’s family told him of his interest. Counsel
also said that he had discussed the waiver with Johnson. The court asked Johnson to explain
the right, which Johnson then described as “a trial of your peers, and they are instructed upon
the law from you and they are to make their decisions about the facts of the case and give their
own decision from, right from the direction of you basically.” The court added that, in order
to convict him, all twelve persons of the jury would have to unanimously conclude beyond a
reasonable doubt that he was guilty. The court then asked if he understood these
characteristics of a jury trial, and Johnson said that he understood but thought the damaging
evidence against him would overwhelm a jury. He thought that the government’s story would
paint an indelible picture in the minds of jurors. The court warned that Johnson could not
change his mind, and Johnson stated, “I made my decision.” The court emphasized that
Johnson was relinquishing a constitutional right and wanted to be sure the waiver was
voluntary. Johnson again stated that he understood and that he did not view a jury from the
Eastern District of Wisconsin as his “peers.” The court asked if anyone threatened Johnson into
making this decision, to which he replied, “It’s all me.” Defense counsel agreed that there were
tactical advantages to a bench trial, including avoiding concerns about the lower educational
level of a jury. The court accepted Johnson’s waiver as knowing and voluntary. After a two‐
day bench trial, the court found Johnson guilty of all three counts.
The Sixth Amendment guarantees an accused the right to trial by jury. U.S. CONST.
AMEND. VI. A criminal defendant, however, may knowingly waive many fundamental
constitutional protections, see United States v. Mezzanatto, 513 U.S. 196, 201, (1995), including the
right to a jury trial. See, e.g., United States v. Booker, 543 U.S. 220, 276 (2005), Whitehead v. Cowan,
263 F.3d 708, 732 (7th Cir. 2001). On appeal the burden is on the defendant to show that a
waiver was not knowingly and intelligently made. Whitehead, 263 F.3d at 732.
Johnson argues that his waiver of his right to a jury trial was neither knowing nor
voluntary, and thus his case should be remanded for a new trial. He urges, for instance, that
the waiver should not stand because he did not sign a waiver form, as required by FED. R. CRIM.
P. 23(a)(1). (“If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the
defendant waives a jury trial in writing. . . .”) He acknowledges that the absence of a signed
form does not automatically invalidate a waiver, but says it calls into question whether he
knowingly relinquished his right to a jury trial.
No. 08‐1326 Page 3
“[W]hile the absence of a written waiver form is probative of whether or not the waiver
is valid, it is not dispositive.” United States v. Robinson, 8 F.3d 418, 422 (7th Cir. 1993). The lack
of a signature is one factor in the voluntariness determination and will not result in reversal if
the colloquy provides sufficient indicia of a knowing and voluntary waiver. Id. at 423. A valid
waiver means that the defendant “understood that the choice confronting him was, on the one
hand, to be judged by a group of people from the community, and on the other hand, to have
his guilt or innocence determined by a judge.” Haliym v. Mitchell, 492 F.3d 680, 698 (6th Cir.
2007); U.S. ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir. 1983). In the absence of
a written waiver, voluntariness can be inferred from circumstances such as a colloquy in which
the defendant unequivocally acknowledges his desire to waive the right to a jury trial, United
States v. Robertson, 45 F.3d 1423, 1425 (10th Cir. 1995); comments by counsel demonstrating that
the client personally accepted the waiver, United States v. Leja, 448 F.3d 86, 93‐94 (1st Cir. 2006);
evidence that the defendant passively sat by while counsel waived the right, United States v.
Carmenate, 544 F.3d 105, 108 (2d Cir. 2008); the defendant’s familiarity with the criminal justice
system, id.; and the defendant’s ability to express his own wishes, United States v. Mendez, 102
F.3d 126, 130 (5th Cir. 1996), or ability to understand the concept of waiver. United States v.
Bishop, 291 F.3d 1100, 1114 (9th Cir. 2002).
In this case, Johnson unequivocally stated that he knew he had a constitutional right to
trial by jury, described his understanding of that right, and noted that it was his own decision
to waive it. He was an articulate, English‐speaking 26‐year‐old man with two years of college
education. He appeared in person to waive the right and did not at any point suggest that he
objected or did not understand the proceedings. Although he had never previously
participated in a trial, he had appeared in a court before. Defense counsel also confirmed that
Johnson’s decision to waive the right to jury trial was his own. Under these circumstances,
defendant failed to show how the waiver was not knowing, voluntary, and intelligent.
Next, Johnson argues that his waiver was not knowing because the district court failed
to advise him of his right to participate in the selection of jurors. He argues that, under United
States v. Rodriguez, 888 F.2d 519, 527‐28 (7th Cir. 1989), a district court errs if it fails to warn a
defendant of the right to participate in jury selection. That case reinterpreted United States v.
Delgado, 635 F.2d 889, 890 (7th Cir. 1981) (superceded by Bank of Nova Scotia v. United States, 487
U.S. 250, 256 (1988)), where we announced that, during a formal jury‐waiver colloquy, a district
court should explain that a jury is composed of twelve members of the community, that the jury
verdict is unanimous, that the defendant may participate in the selection of jurors, and that at
a bench trial the judge alone will decide guilt or innocence. The court here recited all of those
rights except the right to participate in jury selection.
No. 08‐1326 Page 4
However, in Rodriguez, we held that “the omission of the full menu of advice . . . is not
an independent basis for reversal.” 888 F.2d at 527. The Delgado warnings are “called for as
a matter of prudence. Lesser (even no) warnings do not call into question the sufficiency of the
waiver so far as the Constitution is concerned.” Id. As long as a defendant’s substantial rights
are not affected, the court can disregard omissions of information that is not an essential
ingredient of a waiver. Id. at 528. In short, as long as a defendant knows that he is
relinquishing his right to trial by jury, knowing the details of the jury process or the right to
jury selection is not essential. See Whitehead, 263 F.3d at 732, U.S. ex rel. Wandick v. Chrans, 869
F.2d 1084, 1088 (7th Cir. 1989); see also United States v. Adkins, 274 F.3d 444, 453 (7th Cir. 2001).
In this case, Johnson fails to show how the omission affected his substantial rights. As
reflected by his responses during the colloquy, Johnson was aware that he was waiving a right
to a trial by jury. He stated before the court that he knew he had a constitutional right, that he
made his decision, and that he had several reasons to prefer having a judge decide his case.
Those reasons included a concern as to whether jurors from the Eastern District of Wisconsin
were really “peers” of his, a man from Chicago. Moreover, even if he had exercised his right
to participate in jury selection in Wisconsin, the jury pool still would have been from Wisconsin
and not Chicago.
Finally, Johnson argues that the district court’s comments during the final pretrial
conference inappropriately influenced his decision to waive his right to a jury trial. At that
conference, the court granted the government’s motion to admit evidence that Johnson had
been previously apprehended for possession of drugs and drug paraphernalia. In its ruling,
however, the court mentioned that certain government witnesses had credibility problems due
to their involvement in drug trafficking. Johnson cites United States v. OʹNeill, 437 F.3d 654, 658
(7th Cir. 2006), for the proposition that a court may not mislead a defendant with “false hope”
during a plea colloquy. In O’Neill, we expressed concern about statements from the court that
could have given the defendant a false expectation that he would receive a particular sentence,
thereby leading him to plead guilty. Id. Johnson asserts that the district court here similarly
persuaded him to agree to a waiver based on a false expectation that it would discredit
government witnesses at a bench trial.
O’Neill is distinguishable. In this case, the district court referred to “credibility
problems” of government witnesses when evaluating a motion to admit evidence, not as part
of a waiver colloquy. We find no questionable conduct of the kind contemplated in O’Neill.
Furthermore, Johnson presents no evidence that the district court’s comments affected
his decision to waive his right to a jury trial. The court had noted that Johnson’s earlier arrest
was “strong evidence to support” the testimony of the government witnesses and could “rebut
No. 08‐1326 Page 5
the suggestion that Mr. Johnson is simply an unlucky person.” Johnson therefore could not
have been “misinformed” regarding the court’s willingness to consider the witnesses’
testimony. In addition, in the waiver colloquy, Johnson acknowledged that the court would
rule on all evidence later at a bench trial. He knew the risks he faced at a bench trial, and any
expectation of a different outcome was not due to a misunderstanding of the trial process.
AFFIRMED.