United States v. H. Kenneth McCurdy

Appellant McCurdy was convicted of smuggling and transporting marijuana in violation of 21 U.S.C. § 176a.

The sole issue on appeal is whether McCurdy validly waived jury trial within the terms of Rule 23(a), Federal Rules of Criminal Procedure, provides: The Rule

There was no written waiver signed by the defendant. However, the record sets forth the following colloquy:

In United States v. Guerrero-Peralta, 446 F.2d 876 (9th Cir., 1971), this court recently considered the requirements for a valid waiver of jury trial under Rule 23. There we held that a twelve-member jury could not be waived by a stipulation of counsel, the defendant being present but silent. Rule 23(b). We noted that the purpose of a writing under Rule 23 is to provide “the best record evidence of the express consent of a defendant.” (Emphasis in the original.) We then stated: “Express consent given orally by the defendant personally and appearing on the record may be equally good evidence, but that much, as a minimum, must appear.” P. 877.

• Ideally, counsel in the present case would have called to the attention of the trial judge the provisions of Rule 23, and McCurdy’s signature on the appropriate form would…