No. 07-20075
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
____________ May 15, 2008
No. 07-20075 Charles R. Fulbruge III
____________ Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
NANCY IGBINOSUN
Defendant-Appellant
_______________________
Appeal from the United States District Court
for the Southern District of Texas
_______________________
Before DAVIS and SOUTHWICK, Circuit Judges, and CLARK, District
Judge.*
CLARK, District Judge:
After a one day bench trial, Nancy Igbinosun was acquitted on one count
of possession with intent to distribute a controlled substance in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count I) and convicted on one count of
importing a controlled substance in violation of 21 U.S.C. §§ 952(a) and
960(b)(2)(A) (Count II). Igbinosun now appeals her conviction, charging that her
waiver of her Sixth Amendment right to trial by jury was not knowing and
*
District Judge for the Eastern District of Texas, sitting by designation.
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No. 07-20075
intelligent, that the district court erred by failing to give her the opportunity to
present closing argument, and that the verdicts on Counts I and II were
inconsistent and premised on an error of law. For the reasons discussed below,
we affirm.
I. Facts and Procedural Background
Igbinosun was arrested on November 26, 2004 after being detained by
officials at George Bush Intercontinental Airport in Houston, Texas, upon her
return from Nigeria with her five year old daughter. She was later found to
have swallowed fifty-eight pellets of heroin. Igbinosun told officials that she did
so because individuals in Nigeria had kidnaped her daughter and refused to
return the child until she swallowed the drugs.
On March 11, 2005, the district court granted Igbinosun’s Motion for a
Psychiatric Exam, regarding her sanity at the time of the offense and her
competency to stand trial. The psychiatric report filed on September 2, 2005
stated that Igbinosun was sane at the time of the offense, but was incompetent
to stand trial as of August 18, 2005. This report also found “objective
information” indicating that Igbinosun suffered from a “major mental disorder,
in the form of Major Depressive Disorder.” Igbinosun was later re-evaluated and
found competent to stand trial in April 2006.
On May 30, 2006, Igbinosun filed a written motion to proceed with a bench
trial, waiving her right to jury.1 Igbinosun also signed a “Waiver of Jury” on
May 30.2 This document was signed by Igbinosun, her attorney, the Assistant
United States Attorney, and District Court Judge Vanessa Gilmore. At the pre-
trial conference, also on May 30, defense counsel reiterated the request for a
1
This motion contains the following language: “Defendant is aware of her
constitutional right to a jury trial which she has discussed with counsel. Defendant,
therefore, waivers her right to a jury trial and seeks a bench trial.”
2
The Waiver of Jury states: “Having been advised by the court that I have the
constitutional privilege to a trial by a jury, I voluntarily waive my right to a trial by jury
and consent to a trial before the court.”
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bench trial, and the court asked Igbinosun a series of questions regarding her
waiver.3 Before the verdict was rendered on July 25, 2006, the court again asked
Igbinosun whether she had waived her right to trial by jury and if she had
discussed it with her lawyer prior to waiver. Igbinosun answered “yes” to both
questions.
At trial, the court asked whether either side wished to make an opening
statement, an offer which both parties declined. At the close of evidence, the
court took a recess, the length of which is not specified in the record, before
reconvening to announce the verdict. The court did not ask whether either side
wanted to make a closing statement, and neither party asked to do so.
The court convicted Igbinosun on Count II of the indictment (importation
of heroin) and acquitted her on Count I (possession of heroin with intent to
distribute). At trial, the court made no specific findings of fact, nor did either
side request that the court do so.
II. Analysis
A. Waiver of Right to Trial By Jury
Igbinosun’s first argument is that the waiver of her right to trial by jury
was not knowing and intelligent.
Fed. R. Crim P. 23(a) has three requirements: that the Defendant waive
a jury trial in writing; that the government consent; and that the court approve
the agreement. “A written waiver is sufficient to waive trial by jury under Fed.
R. Crim. P. 23(a). . . Absent a claim of prejudice, we presume that [the
Defendant] understandingly and intelligently waived [her] right to jury trial.”
3
Court: Miss Igbinosun, you have signed this waiver of your right to trial by
jury on your own.
Defendant: Yes, your Honor.
Court: And this is what you agree to?
Defendant: Yes, your Honor.
Court: You understand that by waiving your right to [a] jury, if you have a
trial in this case, that it will just be a trial to the court?
Defendant: Yes, your Honor.
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United States v. Tobias, 662 F.2d 381, 387 (5th Cir. 1981). The government has
carried its burden to demonstrate adequate waiver under Rule 23(a) in this case,
as the record demonstrates that Igbinosun signed a written waiver, in addition
to filing a motion for a bench trial and twice stating on the record that she had
consulted with counsel before waiving her right to a jury trial.
Igbinosun can point to no prejudice to overcome the presumption that her
written waiver was knowing and intelligent. She argues only that the district
court judge did not inform her that a jury is comprised of twelve individuals,
that she could take place in jury selection, and that the jury verdict must be
unanimous. However, this court has stated that “it is not necessary that the
district court orally examine the defendant to determine if the waiver was
intelligently made” because “absent a claim of prejudice by the defendant, it is
assumed that the waiver was knowingly made.” United States v. Gordon, 712
F.2d 110, 115 (5th Cir. 1983).4
Igbinosun argues that neither Gordon nor Tobias defines what a written
waiver must contain to be valid, and cites a Ninth Circuit case for the
proposition that in the case where the district court has reason to suspect the
Defendant may be suffering from mental or emotional instability, a written
waiver without an in-depth “colloquy” conducted by the district court is
insufficient. United States v. Christensen, 18 F.3d 822, 826 (9th Cir. 1994). She
cites no Fifth Circuit authority for this proposition, and this court has re-
4
These three aspects of a jury trial, in addition to the fact that the court will decide
guilt or innocence if the jury trial is waived, are set out in the Benchbook for United States
District Court Judges (Federal Judicial Center: 4th ed. 1996, rev. 2000). The better practice
would be for a district court to follow the guidelines set out in the Benchbook, in order to
avoid the issues raised in this case with respect to waiver. This position has been adopted
by several of our sister circuits, in cases which strongly suggest that the district court
inform the Defendant of these four points when the issue of jury trial waiver arises. See,
e.g., Marone v. United States, 10 F.3d 65, 68 (2d Cir. 1993); United States v. Cochran, 770
F.2d 850, 853 (9th Cir. 1985); United States v. Martin, 704 F.2d 267, 275-76 (6th Cir.
1983); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981).
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affirmed the holding of Tobias as recently as last year. See United States v.
Madden, 220 Fed. Appx.290, 292 (5th Cir. 2007)(unpublished).
While Igbinosun was originally found not competent to stand trial in
August 2005, her condition subsequently changed. Upon re-evaluation, she had
been found competent to stand trial by April 2006. She signed a waiver of her
right to trial by jury, twice stated on the record that she had consulted with her
attorney and understood what the waiver meant, and makes no showing of
prejudice. Igbinosun therefore fails to demonstrate a violation of her Sixth
Amendment right to a jury trial.
B. Failure to Present Closing Argument
Igbinosun’s second argument is that the district court erred by failing to
allow her the opportunity to present closing argument to the court. While
constitutional questions are reviewed de novo, United States v. Perez-Macias,
335 F.3d 421, 425 (5th Cir. 2003), cert. denied, 540 U.S. 994, 124 S. Ct. 495
(2003), the fact that Igbinosun did not object below means that the court will
review for plain error. United States v. Martinez, 974 F.2d 589, 590 (5th Cir.
1992).
Like other constitutional rights, the right to present closing argument
may be waived. “A defendant may not remain mute during a trial and later
complain of errors that might have been corrected by the trial court.” Id.
“[A]bsent waiver, ‘the failure to allow a closing argument constitutes plain
error.’” United States v. Davis, 993 F.2d 62, 64 (5th Cir. 1993)(quoting Martinez,
974 F.2d at 591).
Generally, “before a waiver of the right to present closing argument will
be found[,] the record must clearly demonstrate its ‘intentional relinquishment
or abandonment.’” Martinez, 974 F.2d at 591 (quoting Johnson v. Zerbst, 304
U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)). An affirmative waiver on the record
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No. 07-20075
is not necessary; rather, the waiver can be inferred from a review of the entire
record. Id. at 591, n.7.5
In Martinez, this court stated that:
The decision respecting closing argument, like many other trial decisions,
is a matter of trial strategy. The strategic choice may be even more acute
in a bench trial as counsel assesses the judge's reaction to the evidence.
Counsel’s opting to forego argument in a bench trial and to refrain from
objecting to the court's suggestion that arguments were not necessary
appears to fit quite comfortably within the general parameters of strategic
trial choices.
Id at 591. “The critical factor in deciding whether the silence of counsel
constitutes a waiver is whether there was a meaningful opportunity for counsel
to request argument or to object, considering all the attendant circumstances.”
Id.
This case is similar factually to Martinez, in which the court also took a
recess after the close of evidence, then announced its decision immediately upon
returning. The only difference is that in Martinez, the court stated just before
rendering the verdict that he was prepared to rule and did not consider closing
arguments necessary. As in the case at bar, counsel in Martinez did not request
closing argument, nor object to the court’s decision not to have closing
arguments. See id. at 590.
Because there was a recess at the close of the evidence and prior to the
verdict being rendered, defense counsel in this case had time to collect his
thoughts, consult with his client, and decide whether a closing argument might
be helpful. There is no indication that the district court judge was overbearing
or likely to cut counsel off if he asked to present argument when the judge began
to render her decision. The fact that the district judge asked whether counsel
wished to make opening statements, an offer which both parties declined,
5
This court has previously noted that requiring a verbal waiver as a matter of
course would merely encourage counsel to stand mute in order to “build error” into the
record. “Such a result would be untenable.” Id.
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No. 07-20075
indicates that she would have been receptive to closing argument had defense
counsel requested it.
This court will not sanction a rule that permits defense counsel to build
error into the record by foregoing closing argument for tactical reasons, waiting
until the court has found the Defendant not guilty on one count, and then
turning his own silence into grounds for reversal on the other count. Under
these circumstances, the district court’s failure to permit Igbinosun to make a
closing argument was not plain error.
C. Verdicts on Counts I and II
Igbinosun’s final argument is that the verdict of not guilty on the
possession with intent to distribute charge (Count I) is inconsistent with the
guilty verdict on the importation charge (Count II). The court reviews for
sufficiency of the evidence. Harris v. Rivera, 454 U.S. 339, 344, 102 S. Ct. 460,
463 (1981)(“[E]ven if the acquittal rests on an improper ground, that error would
not create a constitutional defect in a guilty verdict that is supported by
sufficient evidence and is the product of a fair trial.”); see also United States v.
Mollier, 853 F.2d 1169, 1176 (5th Cir. 1988)(“The jury in a criminal case (or a
judge, for that matter) is not required to convict a defendant against whom the
prosecution raises legally sufficient evidence.”).
Under a sufficiency of the evidence review, the court will look at “whether,
viewing the evidence and all reasonable inferences most favorably to the
prosecution, a reasonable jury could find the evidence inconsistent with all
reasonable hypotheses of the defendants' innocence.” United States v.
Lichenstein, 610 F.2d 1272, 1276 (5th Cir. 1980). “Inconsistency in a verdict is
not a sufficient reason for setting it aside.” Harris, 454 U.S. at 345, 102 S. Ct.
at 464 (citing Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189 (1932)). The
decision in Harris extended the Dunn principle to bench trials. Id. at 348, 102
S. Ct. at 465.
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No. 07-20075
Igbinosun suggests that, at a minimum, the district court’s failure to make
specific findings of fact when rendering its verdict necessitates remand in order
to allow the court to make these findings. While it is true that the district court
did not make any specific findings of fact in this case, Fed. R. Cir. P. 23(c) only
requires that specific findings of fact be rendered if a party requests it before the
finding of guilty or not guilty. Neither party did so in this case, and the record
does shed light on the district court’s reasons for arriving at what Igbinosun
claims is an inconsistent result.
At sentencing, the court stated that there “didn’t seem like there was any
intent there [on Count 1] to me. The Government didn’t really have evidence of
it.” Intent to distribute requires a different mens rea than that needed for
importation. While the importation statute requires knowledge that the
substance is a controlled substance, United States v. Restrepo-Granda, 575 F.2d
524, 527 (5th Cir. 1978), cert. denied, 439 U.S. 935, 99 S. Ct. 331 (1978), the
possession with intent to distribute statute requires proof that the Defendant (1)
knowingly (2) possessed the controlled substance (3) with intent to distribute it.
United States v. Suarez, 155 F.3d 521, 525 (5th Cir. 1998).
A court is permitted to draw an inference of intent to distribute from the
amount of drugs present, see id., but this court has never held that it is required
to do so. The government neither elicited testimony regarding the amount of
heroin typically held for personal consumption, nor argued that the amount of
heroin found supported an inference of intent to distribute. In contrast,
Igbinosun testified at trial that while she did not know what kind of drugs she
had swallowed, she knew that what she swallowed was, in fact, drugs. Under
these facts, the district court could have found that the United States proved
intent as to the importation, but not the distribution, count.6
6
Igbinosun also argues that the court’s comments during sentencing indicate that
the court’s verdict was based on an error of law because the judge erroneously considered
duress to be a defense only to the possession charge, and again suggests that the case
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No. 07-20075
III. Conclusion
For the reasons discussed above, we affirm the district court.
AFFIRMED.
should be remanded for specific factual findings. However, the district court’s somewhat
ambiguous comments at sentencing, without more, is not a basis for reversing a verdict
where no findings were requested by either party at trial.
9