In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3004
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
L ARRY A. W ILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 967—Wayne R. Andersen, Judge.
A RGUED A PRIL 10, 2008—D ECIDED M ARCH 11, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
R OVNER, Circuit Judge. Following a bench trial, Larry
Williams was convicted of distributing crack cocaine
and was ordered to serve a prison term of 252 months.
Williams appeals, contending that the district court erred
in accepting his jury waiver without taking steps to
ensure that the waiver was knowing and intelligent.
Because Williams did not raise this issue below, our
2 No. 07-3004
review is confined to one for plain error, and the
record does not support a finding that his substantial
rights were affected by any error in accepting his
waiver. We therefore affirm Williams’ conviction.
I.
A one-count indictment charged that Williams know-
ingly and intentionally distributed more than fifty grams
of cocaine base in the form of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1). R. 5. The basis for the charge
was Williams’ sale of approximately fifty-eight grams of
crack cocaine to an undercover agent of the Bureau
of Alcohol, Tobacco and Firearms and a cooperating
individual. The sale took place on October 30, 2003.
Williams was arrested more than a year later, on Novem-
ber 4, 2004, and was indicted on November 30, 2004.
He was arraigned on December 7, 2004, and entered a
plea of not guilty. A series of status conferences and
continuances ensued. The Federal Defender was ap-
pointed to represent Williams on May 19, 2006, after his
previously-appointed counsel withdrew.
On November 30, 2006, when the parties’ counsel
appeared before the court for another status hearing,
Williams’ attorney announced that Williams, who was not
present, wanted a bench trial:
Mr. Rodriguez: Good morning, your Honor. Sergio
Rodriguez from the Federal Defender
Program on behalf of Larry Williams.
He was not brought over, but I was
No. 07-3004 3
in contact with him. Your Honor,
we are here to get a trial date finally.
We are going to ask that this Court
consider a bench trial. It should only
be a couple of days long.
...
The Court: How long will it take?
Mr. Rodriguez: It is only going to be a couple of
days.
Mr. Gurland: It should be quick.
[Assistant U.S.
Attorney]
The Court: And you have consented?
Mr. Gurland: I have no objection to a bench trial.
Mr. Rodriguez: He is smiling, Judge.
The Court: Well, you actually have to consent.
Mr. Gurland: I consent.
The Court: I know that is painful.
R. 100 at 2-3. The court set the matter down for a bench
trial on March 5, 2007.
The record of that hearing manifests compliance with
the second and third of the conditions set forth in
Federal Rule of Criminal Procedure 23(a) for a bench
trial—consent by government and consent by the
court—but not the first—a written waiver by the
defendant of his right to a jury trial. The record contains
4 No. 07-3004
no such written waiver, and neither party maintains that
the defendant ever executed such a waiver.
Subsequent to this hearing, Williams’ counsel filed a
motion seeking leave to withdraw from representing
Williams and to continue the trial date based on a break-
down of the attorney-client relationship. In that motion,
Williams’ attorney noted that “Mr. Williams still wishes
to have a bench trial and would like one as soon as possi-
ble, but would like to have some time to prepare with
new counsel.” R. 58 at 2 ¶4. The court granted counsel’s
request to withdraw and a new attorney was appointed
in his stead, but the scheduled trial date remained in place.
When the parties appeared for trial as scheduled on
March 5, the court took the opportunity at the outset to
confirm that Williams indeed wished to waive his right to
a jury trial in favor of a bench trial. “I just want to make
sure that you know you do have a right to a jury trial,”
Judge Andersen told Williams. R. 77-1 at 3. “And would
you like to have a bench trial and waive the jury trial?” Id.
“Yes, sir,” Williams replied. Id. The trial commenced and
concluded on the following day, when Judge Andersen
found Williams guilty. The judge later ordered him to
serve a prison term of 252 months.
Although the court confirmed with Williams at the start
of the trial that he wished to waive his right to a jury
trial, the court did not comply with the supervisory rule
we adopted in United States v. Scott, 583 F.2d 362, 364
(7th Cir. 1978) (per curiam), that requires a district court
to interrogate a defendant before accepting his jury
waiver in order to confirm that he understands the
No. 07-3004 5
nature of the right and the consequences of his waiver. In
United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981), we
set out a colloquy that we viewed as sufficient to accom-
plish this task, one that explains to the defendant that
(1) “a jury is composed of twelve members of the com-
munity”; (2) “the defendant may participate in the selec-
tion of jurors”; (3) “the verdict of the jury is unanimous”;
and (4) in a bench trial, “the judge alone will decide
guilt or innocence.” The court’s brief exchange with
Williams at the start of the trial did not cover these
points; the court simply confirmed that Williams knew
he had a right to a jury trial and wished to waive it.
At no time in the proceedings below, however, did
Williams or his counsel ever raise these omissions.
Neither during nor after the trial did Williams object to
the trial or to the judge’s verdict on the ground that his
waiver of the jury was uninformed and therefore invalid.
It is only on appeal that Williams argues that he did not
knowingly and intelligently waive his right to trial by a
jury. In the absence of a Delgado colloquy and other
record evidence establishing his comprehension of the
nature of right he was waiving, Williams contends that
his jury waiver was invalid and that we must vacate
his conviction and remand for a new trial. Alternatively,
he asks that we remand for an evidentiary hearing as
to whether his jury waiver was knowing and intelligent.
II.
The Sixth Amendment right to a trial by a jury in a
criminal case is considered “fundamental to the American
6 No. 07-3004
scheme of justice,” Duncan v. Louisiana, 391 U.S. 145, 149,
88 S. Ct. 1444, 1447 (1968), safeguarding the defendant
from “oppression by the Government,” id. at 155, 88 S. Ct.
at 1451. “Given this purpose, the essential feature of a
jury obviously lies in the interposition between the
accused and his accuser of the commonsense judgment
of a group of laymen, and in the community participation
and shared responsibility that results from the group’s
determination of guilt or innocence.” Williams v. Florida,
399 U.S. 78, 100, 90 S. Ct. 1893, 1905-06 (1970). It is a
right that the defendant can choose to waive. Adams v.
McCann, 317 U.S. 269, 275, 63 S. Ct. 236, 240 (1942); Patton
v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 263 (1930).
In keeping with the importance of the right, however, the
decision to waive a jury is among those basic decisions
about a case as to which the defendant himself has the
ultimate authority; counsel may not make the decision
on his behalf. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct.
3308, 3312 (1983); United States v. Boyd, 86 F.3d 719, 723-24
(7th Cir. 1996); United States v. Robinson, 8 F.3d 418, 423 (7th
Cir. 1993) (quoting Williams v. DeRobertis, 715 F.2d 1174,
1182 (7th Cir. 1983)). For the defendant’s waiver to be
valid, it must be voluntary, knowing, and intelligent.
Williams, 715 F.2d at 1178-79 (quoting Brady v. United States,
397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970)); see also
Corcoran v. Buss, 551 F.3d 703, 711 (7th Cir. 2008).
Rule 23(a) 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 govern-
ment consents; and (3) the court approves.” Fed. R. Crim.
P. 23(a). The rule reflects the Supreme Court’s decision in
No. 07-3004 7
Patton, 281 U.S. at 312, 50 S. Ct. 263; see also Adams, 317 U.S.
at 275, 63 S. Ct. at 240, and by requiring that the defen-
dant’s waiver be in writing, the rule serves “to ensure that
a criminal defendant is aware of his jury right before
waiving it and that any waiver is personal and unequivo-
cal,” United States v. Diaz, 540 F.3d 1316, 1322 (11th Cir.
2008) (per curiam) (quoting United States v. Garrett, 727
F.2d 1003, 1012 (11th Cir. 1984), judgment aff’d, 471 U.S.
773, 105 S. Ct. 2407 (1985)); see also Brown v. Burns, 996
F.2d 219, 221 (9th Cir. 1993) (per curiam) (compliance
with Rule 23(a) provides best record evidence of defen-
dant’s voluntary waiver).
Compliance with Rule 23(a) does not by itself establish
that the defendant’s waiver was informed, and it is for
that reason that in Scott we instructed district courts to
engage the defendant in a colloquy, later outlined in
Delgado, designed to ensure that the defendant under-
stands what he is giving up when he waives his right to
a jury. See Brady, 397 U.S. at 748, 90 S. Ct. at 1469
(“Waivers of constitutional rights not only must be volun-
tary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and
likely consequences.”); see also United States v. Lilly, 536
F.3d 190, 197-98 (3d Cir. 2008) (coll. cases that either
require or urge colloquies to ensure that jury waivers
are informed).
However, neither a Delgado colloquy nor a written
waiver is a constitutional mandate. See United States v.
Rodriguez, 888 F.2d 519, 527 (7th Cir. 1989) (colloquy not
constitutionally required) (citing Williams, 715 F.2d at
8 No. 07-3004
1178); Wandick v. Chrans, 869 F.2d 1084, 1088 (7th Cir. 1989)
(same); Robinson, 8 F.3d at 422 (citing Wandick, 869 F.2d
at 1088) (written waiver not constitutionally required);
Brown, 996 F.2d at 221 (same); Fitzgerald v. Withrow, 292
F.3d 500, 504 (6th Cir. 2002) (constitution does not require
that jury waiver take any particular form); see also Basile v.
United States, 999 F.2d 274, 276 (7th Cir. 1993) (mere
violation of federal criminal rule is not a constitutional
error). Nor is reversal automatic in the exercise of our
supervisory authority for the failure to comply with one
or both of these requirements. See Robinson, 8 F.3d at 422;
Rodriguez, 88 F.2d at 527-28. 1 As we have said, the sole
constitutional requirement is that the waiver be voluntary,
knowing, and intelligent. The colloquy and the written
waiver serve to document these qualities, but a jury
waiver may be valid despite their absence. So long as the
defendant had a “concrete understanding” of his right
to a jury trial, his waiver is valid. Williams, 715 F.2d at
1180 & n.3; see also Whitehead v. Cowan, 263 F.3d 708, 732-
33 (7th Cir. 2001); Robinson, 8 F.3d at 422-23.
Here we have a record throwing little if any light on
Williams’ understanding of the right he waived. (Williams
does not argue that his waiver was involuntary, and
1
Both Robinson and Rodriguez adhere to the Supreme Court’s
decision in Bank of Nova Scotia v. United States, 487 U.S. 250, 108
S. Ct. 2369 (1988), which holds that a federal court may not
rely on its supervisory power to circumvent the harmless
error inquiry prescribed by Federal Rule of Criminal Procedure
52(a). See also Peguero v. United States, 526 U.S. 23, 29-30, 119
S. Ct. 961, 965 (1999).
No. 07-3004 9
given that the district judge personally addressed him
and confirmed his wish to waive a jury trial, we have
no reason to question the voluntariness of the waiver.)
Because Williams never raised this issue below, no evi-
dence was elicited as to the circumstances underlying
his waiver and the district court never made a finding as
to whether it was knowing and intelligent. The lack of a
written waiver by Williams was a violation of Rule 23(a),
and the failure to conduct a Delgado colloquy was con-
trary to the supervisory rule we adopted in Scott. But
these errors do not call for reversal unless they affected
Williams’ substantial rights. 28 U.S.C. § 2111; Fed. R.
Crim. P. 52; Rodriguez, 888 F.2d at 527-28. And we cannot
determine whether his substantial rights were affected
without evidence revealing what Williams knew and
understood when he waived his right to a jury. The
import of a silent record depends on which party bears
the burden of production and persuasion on this ques-
tion. Pease v. Production Workers Union of Chicago & Vicinity
Local 707, 386 F.3d 819, 823 (7th Cir. 2004). If the ap-
plicable standard of review is harmless error, Rule 52(a),
then it is the government that bears the burden, United
States v. Vonn, 535 U.S. 55, 58, 122 S. Ct. 1043, 1046 (2002),
and the lack of relevant evidence works to its detriment.
E.g., United States v. Garcia, 439 F.3d 363, 369 (7th Cir.
2006). If the standard is plain error, Rule 52(b), then it is
Williams who bears the burden of production and persua-
sion, Vonn, 535 U.S. at 58, 122 S. Ct. at 1046, and a silent
record works to his detriment. E.g., United States v. Griffin,
521 F.3d 727, 730 (7th Cir. 2008).
We take our cue in how to assess the validity of Williams’
waiver from two Supreme Court decisions dealing with
10 No. 07-3004
guilty pleas given by defendants who were not fully
apprised of their trial rights before waiving those rights:
Vonn, 535 U.S. 55, 122 S. Ct. 1043, and United States v.
Dominguez Benitez, 542 U.S. 74, 124 S. Ct. 2333 (2004). The
fact that this case involves a jury waiver rather than a
guilty plea does not meaningfully distinguish it from
Vonn and Dominguez Benitez, as they deal with a defen-
dant’s decision to waive all of his trial rights, including
his right to a jury. The decision to plead guilty, like the
decision to waive a jury trial, is one that is personal to the
defendant. Jones, 463 U.S. at 751, 103 S. Ct. at 3312. It is a
decision that must be voluntarily, knowingly and intelli-
gently made. E.g., United States v. Ruiz, 536 U.S. 622, 629,
122 S. Ct. 2450, 2455 (2002). And there is a detailed collo-
quy that a district court must engage in with the
defendant before he pleads guilty which, like the Delgado
colloquy, is designed to ensure that the decision to
waive his constitutional rights is freely and intelligently
made. See Fed. R. Crim. P. 11; see McCarthy v. United
States, 394 U.S. 459, 464-65, 89 S. Ct. 1166, 1170 (1969).
Vonn holds that where a defendant challenges the
validity of his guilty plea based on an error in the trial
court’s plea colloquy that he did not bring to the trial
judge’s attention, he bears the burden of showing that
the defect constitutes plain error affecting his substantial
rights. 535 U.S. at 59, 122 S. Ct. at 1046; see Rule 52(b). Vonn
was charged with multiple offenses and had pleaded
guilty first to one charge and later to two others. On both
occasions, in advising Vonn of the rights that he was
waiving by pleading guilty, the court neglected to men-
tion his right to representation by an attorney if he went to
No. 07-3004 11
trial, in violation of Federal Rule of Criminal Procedure
11. See Fed. R. Crim. P. 11(b)(1)(D) (“Before the court
accepts a plea of guilty . . . the court must address the
defendant personally in open court . . . [and] must
inform the defendant of, and determine that the
defendant understands, . . . the right to be represented
by counsel—and if necessary have the court appoint
counsel—at trial and at every other stage of the proceed-
ing[.]”). Although Vonn later (unsuccessfully) sought to
withdraw one of his guilty pleas, he did not do so on
the basis of the omission in the court’s Rule 11 plea collo-
quy. Not until he appealed his conviction did Vonn
object to the validity of his pleas based on that defect.
Because he had not raised the omission with the district
court, the Supreme Court held that Vonn was obliged to
satisfy the plain-error standard set forth in Rule 52(b). The
Court believed that to instead place the burden on the
government to show that the error was harmless would
give the defendant an undesirable incentive to keep
quiet about the error unless and until he later decided
he was unhappy with the outcome of his guilty plea:
[A] defendant could choose to say nothing about a
judge’s plain lapse under Rule 11 until the moment
of taking a direct appeal, at which time the burden
would always fall on the Government to prove harm-
lessness. A defendant could simply relax and wait to
see if the sentence later struck him as satisfactory;
if not, his Rule 11 silence would have left him with
clear but uncorrected Rule 11 error to place on the
Government’s shoulders.
12 No. 07-3004
535 U.S. at 73, 122 S. Ct. at 1054. The Court went on to
hold that in deciding whether the defendant has carried
the burden of showing that the error in the plea colloquy
is plain error as defined by Rule 52(b), a reviewing court
is not confined to the change-of-plea proceeding itself
but may look to the entire record to determine whether
the defendants’ substantial rights were affected. Id. at 74-
76, 122 S. Ct. at 1054-55.
Dominguez Benitez in turn holds that in order to demon-
strate that his substantial rights were affected by a defect
in the Rule 11 plea colloquy that he did not bring to the
district court’s attention, a defendant must convince the
court that it is reasonably likely that he would not
have pleaded guilty had he been properly apprised of his
rights. 542 U.S. at 83, 124 S. Ct. at 2340. As in Vonn, the
district court in Dominguez Benitez had omitted a key
admonishment from the Rule 11 colloquy it engaged
in with the defendant before accepting his guilty plea: The
court failed to advise Dominguez that he could not with-
draw his plea if the court later declined to accept the
government’s sentencing stipulations or recommenda-
tions. See Rule 11(c)(3)(B). But like Vonn, Dominguez
first raised this omission on appeal, so he was obliged by
the Court’s holding in Vonn to show that the error consti-
tuted plain error that affected his substantial rights. The
Court of Appeals concluded that it was enough for
Dominguez to show that the district court’s Rule 11 error
was “not minor or technical” and that “he did not under-
stand the rights at issue when he entered his guilty plea.”
United States v. Dominguez Benitez, 310 F.3d 1221, 1225 (9th
Cir. 2002). But the Supreme Court held that the plain
No. 07-3004 13
error standard required Dominguez to show something
more:
As Vonn makes clear, the burden of establishing
entitlement to relief for plain error is on the defendant
claiming it, and for several reasons, we think that
burden should not be too easy for defendants in
Dominguez’s position. First, the standard should
enforce the policies that underpin Rule 52(b) generally,
to encourage timely objections and reduce wasteful
reversals by demanding strenuous exertion to get
relief for unpreserved error. Second, it should respect
the particular importance of the finality of guilty
pleas, which usually rest, after all, on a defendant’s
profession of guilt in open court, and are indispensable
in the operation of the modern criminal justice sys-
tem. And, in this case, these reasons are complemented
by the fact, worth repeating, that the violation claimed
was of Rule 11, not of due process.
We hold, therefore, that a defendant who seeks
reversal of his conviction after a guilty plea, on the
ground that the district court committed plain error
under Rule 11, must show a reasonable probability
that, but for the error, he would not have entered
the plea. A defendant must thus satisfy the judgment
of the reviewing court, informed by the entire
record, that the probability of a different result is
sufficient to undermine confidence in the outcome
of the proceeding.
Id. at 82-83, 124 S. Ct. at 2340 (citations, internal quotation
marks, and footnote omitted).
14 No. 07-3004
These two decisions leave no doubt as to the standard
of review that governs Williams’ claim, which of the
parties bears the burden of proof, and what must be
shown. As in Vonn and Dominguez Benitez, there was a
failure to apprise Williams of the nature of the right that
he was surrendering in his waiver, and as in those two
cases, Williams did not raise the omission in the district
court. As a result, our review is for plain error, and it is
Williams who must show that his substantial rights were
affected by the error. He must show that he did not have
a concrete understanding of his right to a jury trial, and
that but for the trial court’s failure to ensure he had that
understanding, there is a reasonable probability that he
would not have waived the right. Our assessment of
Williams’ waiver is informed not just by his colloquy
with the district judge (which in this case was limited to
asking him whether he wished to waive his right to a
jury) but by the entire record.
Nothing in this record reveals that Williams lacked a
concrete understanding of his right to a jury trial or
that he likely would have elected a jury trial but for the
district court’s failure to properly admonish him as to
the nature of this right. It is entirely possible that Williams
did have an adequate understanding of the right,
whether by virtue of his attorney’s advice or his own
education and experience, and that he still would have
waived a jury trial assuming that the court had followed
Scott and Delgado (and for that matter, Rule 23) to the
letter. It is also possible that Williams had no idea what
he was doing and that he would have insisted on a jury
No. 07-3004 15
trial had he been properly admonished. We have no way
to assess his mental state on this record.
That it is Williams who bears the burden of production
and persuasion dictates the outcome. Having submitted
not so much as his own affidavit averring that he did not
adequately comprehend the nature of his right to a jury
trial and that he would not have waived the right had
he properly understood it, Williams has failed to produce
any evidence which would demonstrate that his sub-
stantial rights were affected. He has not shown (and on
this record cannot show) that plain error occurred, and
we have no choice but to affirm his conviction.
Williams endeavors to avoid this result and to distin-
guish Vonn and Dominguez Benitez by characterizing as a
structural error the district court’s failure to properly
admonish him as to the nature of his right to a jury.
Structural errors comprise “a limited class of funda-
mental constitutional errors that defy analysis by ‘harm-
less error’ standards.” Neder v. United States, 527 U.S. 1, 7,
119 S. Ct. 1827, 1833 (1999) (internal quotation marks
and citation omitted); see Washington v. Recuenco,
548 U.S. 212, 218 n.2, 126 S. Ct. 2546, 2551 n.2 (2006)
(collecting examples of structural errors). These types of
errors “affect[ ] the framework within which the trial
proceeds,” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.
Ct. 1246, 1265 (1991), and “are so intrinsically harmful as to
require automatic reversal (i.e. ‘affect substantial rights’)
without regard to their effect on the outcome.” Neder, 527
U.S. at 7, 119 S. Ct. at 1833; Dominguez Benitez, 542 U.S. at
81, 124 S. Ct. at 2339.
16 No. 07-3004
But structural errors are rare, Recuenco, 548 U.S. at 218,
126 S. Ct. at 2551, and the error that occurred here was
not of this nature. To be sure, there are cases that refer to
errors involving jury waivers as structural. E.g., Miller v.
Dormire, 310 F.3d 600, 603-04 (8th Cir. 2002) (finding
structural error where defendant was denied his right to
jury as result of his attorney’s defective performance;
attorney waived right on defendant’s behalf without
explaining right to him, and defendant did not realize
he could object); United States v. Duarte-Higareda, 113
F.3d 1000, 1003 (9th Cir. 1997) (district court’s failure to
conduct colloquy to ensure that defendant who did not
speak English made voluntary, knowing, and intelligent
decision to waive jury required automatic reversal
because error affected framework of trial and court could
not determine whether error harmless). We have our
doubts as to whether the structural terminology of such
cases can be reconciled with Dominguez Benitez,
which makes plain that one can evaluate whether the
defendant’s substantial rights were affected by the
failure to properly admonish him as to the nature of his
jury right. An invalid jury waiver certainly affects the
framework of a case in sense that the determination of
guilt or innocence will be made by a judge rather than
a jury, and it would be a dubious enterprise to try and
show that a jury likely would have reached a different
result than the judge did. That is the point made by cases
like Miller, 310 F.3d at 604. But for purposes of deter-
mining whether the waiver was, in fact, invalid, one can
determine whether the defendant adequately understood
his right to a jury; moreover, if the defendant lacked such
No. 07-3004 17
an understanding, one can assess the likelihood that he
would have stood on his right to a jury had he been
properly admonished of his right. See, e.g., Miller, 310
F.3d at 602 (defendant testified that had he understood
his right to a jury, he would have insisted on a jury trial
rather than waiving right); cf. Nelson v. Hvass, 392 F.3d
320, 323-24 (8th Cir. 2004) (defendant not entitled to
relief where he failed to show that he would not have
waived jury had his attorney properly advised him as
to his jury right).
Our adherence to the approach that the Supreme Court
set forth in Vonn and Dominguez Benitez does not compel us
to abandon language in our earlier decisions to the
effect that we will not presume a valid waiver of the
defendant’s right to a jury trial from a silent record. See
Robinson, 8 F.3d at 422 (quoting Wandick, 869 F.2d at 1087);
see also Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884,
890 (1962). We are presuming nothing as to the validity of
Williams’ jury waiver; we are simply holding that he
has not carried his burden of establishing plain error in
the district court’s acceptance of the waiver. Our deci-
sion, as we have explained, is simply a function of the
elements of plain error and the allocation of the burden
of proof to show such error. Had the error been preserved
by raising it below, with the burden falling to the gov-
ernment to show harmless error under Rule 52(a), then
the result of this appeal might well have been different
on such a limited record.
Our decision today may amount to a departure from
Robinson to the extent that Robinson treated the validity of
18 No. 07-3004
a jury waiver as a preserved issue although, as in this
case, it was first raised on appeal. We note that the
waiver in Robinson was memorialized solely by counsel
and by the court, without confirmation on the record by
Robinson himself that he wished to waive his right to a
jury. On that record, we presumed that Robinson had
only learned of his right to a jury when he conferred with
appellate counsel and that, consequently, his first op-
portunity to raise the issue was on appeal. 8 F.3d at 425-26.
We therefore remanded the case to the district court for
an evidentiary hearing as to the validity of the waiver. Id.
at 426. Here, by contrast, Williams himself did state on
the record that he wished to waive a jury trial—so he
knew, in some sense, that he had such a right. None-
theless, he contends that he is entitled, at the least, to an
evidentiary hearing of the kind we ordered in Robinson
to ascertain whether his waiver was informed. But
Robinson and similar cases pre-dated Vonn and Dominguez
Benitez, and in light of the approach that the Supreme
Court has taken to trial waivers which were not chal-
lenged in the district court, we are obliged to follow
their lead. 2 Because Williams did not raise the validity of
2
We note that prior to Vonn, the Ninth Circuit followed a
similar approach to plea-colloquy defects, placing the burden
on the government to show that any error in admonishing the
defendant of his rights before accepting his guilty plea was
harmless, even if the error had not been raised below, and
reversing in the absence of such a showing. See United States
v. Odedo, 154 F.3d 937, 940 (9th Cir. 1998). But the Supreme
(continued...)
No. 07-3004 19
his jury waiver in the court below, he must demonstrate
that the acceptance of his waiver amounts to plain error.
In particular, he must show that he did not have a con-
crete understanding of his right to a jury and that it is
reasonably probable that he would not have waived a
jury had he had such an understanding. He cannot
make that showing on the limited record before us.
When we heard oral argument in this case, we raised the
possibility that Williams might wish to drop this direct
appeal (which raises no issue other than the jury waiver)
and reserve the validity of his waiver for collateral
review under 28 U.S.C. § 2255, and the opportunity that
might afford him to develop the record as to the relevant
facts surrounding his waiver. See, e.g., United States v.
Rosario, 234 F.3d 347, 352 (7th Cir. 2000). We gave
Williams and his counsel time after argument to make
that decision. We are informed, however, that Williams
wishes to proceed with this appeal. So be it.
Williams obviously has access to his own mental state
and could have made a record in the district court as to
what he did or did not understand about his right to a
jury and whether he still would have waived a jury trial
had he known all that he was entitled to know about that
2
(...continued)
Court rejected this approach in Vonn, which itself was a Ninth
Circuit case. See United States v. Vonn, 294 F.3d 1093, 1093-94 (9th
Cir. 2002) (on remand from the Supreme Court, noting the
change the Supreme Court’s decision had effected in the
approach to such errors).
20 No. 07-3004
right. Under Vonn and Dominguez Benitez, he bears the
consequence of his failure to make a record on these
subjects. As he has not shown that his substantial rights
were affected by the district court’s failure to engage in
a Delgado inquiry before accepting his waiver, we must
affirm his conviction.
III.
Because Williams did not challenge the validity of his
jury waiver in the district court, he must show that the
district court committed plain error in accepting his
waiver without ensuring that his waiver was intelligent.
On a record that is largely silent as to the informed
nature of Williams’ waiver, he cannot make this show-
ing. We take the opportunity to remind the district courts
and counsel for both defendants and the government that
they are obliged to follow the dictates of Rule 23(a) and our
decisions in Scott and Delgado in accepting a defendant’s
jury waiver and proceeding with a bench trial.
A FFIRMED
3-11-09