Espinoza-Cortez

MEMORANDUM **

Espinoza-Cortez appeals from his judgment of conviction for conspiracy to distribute cocaine, heroin and methamphetamine in violation of 18 U.S.C. §§ 841 (a) and 846, and from his sentence after a plea of guilty to illegal re-entry into the United States in violation of 8 U.S.C. § 1326 . The district court had jurisdiction pursuant to 18 U.S.C. § 3231 ; this court has jurisdiction over Espinoza-Cortez’s timely appeal pursuant to 28 U.S.C. §§ 1291 and 1294.

Espinoza-Cortez argues on appeal that his conviction following a bench trial for the conspiracy charge must be vacated because the record does not reflect that he made a knowing, voluntary or intelligent waiver of his right to a jury trial. The government candidly agrees. The adequacy of a waiver of the right to a jury trial is a mixed question of law and fact that this court reviews de novo. United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir.1997).

Espinoza-Cortez did not sign a written waiver of his right to a jury trial. Pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure, cases such as this which are required to be tried by a jury shall be so tried unless the defendant waives a jury…