United States v. Gilberto Bailon-Santana

429 F.3d 1258 UNITED STATES of America, Plaintiff-Appellee, v. Gilberto BAILON-SANTANA, Defendant-Appellant. No. 04-50079. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 3, 2005. Filed December 6, 2005. Michael Ian Garey, Santa Ana, CA, for the defendant-appellant. Nancy B. Spiegel, Assistant United States Attorney, Los Angeles, CA; Debra W. Yang, United States Attorney; Wayne R. Gross, Assistant United States Attorney, Chief, Southern Division; John D. Early, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-02-00118-AHS-01. Before: CANBY, KOZINSKI and RAWLINSON, Circuit Judges. KOZINSKI, Circuit Judge: 1 We consider whether an attorney's representation that he translated a jury waiver form for his non-English speaking client obviates the need for an in-court waiver colloquy. Facts 2 Bailon-Santana was charged with conspiracy to distribute and to possess with intent to distribute more than 500 grams of cocaine, and possession with intent to distribute cocaine. See 21 U.S.C.…

We consider whether an attorney’s representation that he translated a jury waiver form for his non-English speaking client obviates the need for an in-court waiver colloquy.

Facts

Bailon-Santana was charged with conspiracy to distribute and to possess with intent to distribute more than 500 grams of cocaine, and possession with intent to distribute cocaine. See 21 U.S.C. §§ 841 (a)(1), 846. The defendant, a Mexican native, communicated with the court through a court-certified interpreter during the proceedings. Before trial, he signed a jury waiver form pursuant to Federal Rule of Criminal Procedure 23(a)(1), but the form was printed only in English. His attorney represented both *1260 on the form and in court that he had translated the form into Spanish for his client. The district court asked defendant whether he had waived his jury trial right and the defendant answered in the affirmative. The court then accepted the waiver and proceeded to hold a bench trial. Bailon-Santana was convicted and sentenced to thirty years in prison. He now challenges the validity of his jury waiver and the sufficiency of the evidence underlying his conviction.

Discussion

1. In United States v.…

dissenting:

I respectfully dissent. I am not persuaded that our holding in United States v. Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997), compels a finding that the jury trial waiver in this case is unenforceable.

In Duarte-Higareda , the jury trial waiver was invalidated because “the district court ... fail[ed] to conduct a colloquy with Duarte to ensure that his jury waiver was made voluntarily, knowingly, and intelligently.” Id. at 1003 . In this case, the district court did question Mr. Bailon-San-tana regarding the jury trial waiver he executed.

The jury trial waiver executed by Bail-on-Santana specified that he “knowingly, voluntarily and freely” waived his right to a jury trial. The waiver _ also acknowledged that the contents had been read to Bailon-Santana in Spanish. The problem, according to the majority opinion, is that the waiver was translated by Edmundo Espinoza, Bailon-Santana’s attorney..

Mr. Espinoza inserted the following declaration into the waiver:

*1263 The jury trial waiver was signed by Bail-on-Santana and his attorney on September 22, 2003. Approximately two weeks later, Bailon-Santana’s trial commenced. On the first day of trial, in the presence of…