United States District Court, D. Nevada
REPORT AND RECOMMENDATION MOTION TO WAIVE JURY TRIAL
[ECF NO. 72]
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant Douglas Haig's Contested Motion to
Waive Jury Trial. (ECF No. 72). For the reasons discussed
below, Defendant's motion should be denied.
case, Defendant is charged with engaging in the business of
manufacturing ammunition without a license under 18 U.S.C.
§ 922(a)(1)(B). (ECF No. 10). Though it is not mentioned
in the indictment, this case is linked with the October 1,
2017 mass shooting in Las Vegas. (See ECF No. 36 at
1-3; ECF No. 47 at 1-4). The Government intends to use
evidence regarding Defendant's alleged sales to Stephen
Paddock, the shooter on October 1, in this case. (ECF No. 42
now moves to proceed with a bench trial in this case rather
than a jury trial. (ECF No. 72 at 1). While
“conced[ing] the Federal Rules require the
Government's consent and Court approval to waive his jury
trial, ” Defendant argues that “[h]is case is one
of the rare and exceptional cases which requires the Court to
grant his motion to waive a jury without the consent of the
government” due to complicated scientific and legal
issues, the length and cost of a jury trial, and the
prejudice and passion surrounding the October 1 shooting.
(Id. at 3, 7-10). In response, the Government argues
that granting a contested waiver of a jury trial happens only
in extreme cases distinguishable from the instant case and
normal procedural safeguards will ensure that Defendant
receives a fair trial. (ECF No. 73 at 5-9).
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 government consents; and (3) the court
approves.” Fed. R. Crim. P. 23(a). In upholding the
statute's validity, the Supreme Court stated, “We
need not determine in this case whether there might be some
circumstances where a defendant's reasons for wanting to
be tried by a judge alone are so compelling that the
Government's insistence on trial by jury would result in
the denial to a defendant of an impartial trial.”
Singer v. United States, 380 U.S. 24, 37 (1965).
“The Supreme Court has never determined [that] the
circumstances alluded to in Singer [have] actually
existed-i.e., where requiring a defendant to undergo trial by
jury would infringe his constitutional right to a fair
trial-nor has it ever decided what circumstances would create
such an unusual situation.” United States v. U.S.
Dist. Court for E. Dist. of Cal., 464 F.3d 1065, 1070
(9th Cir. 2006).
United States Court of Appeals appears to have approved a
defendant's waiver of a jury over the government's
objection. Indeed, the circuits that have considered this
issue have uniformly upheld the trial courts' refusals to
grant such waivers without governmental consent.”
Id. In overturning a district court's order
granting a contested jury trial waiver, the Ninth Circuit
stated, “we are confident that the able and experienced
trial judge is fully capable of ensuring these defendants an
impartial trial” through tool such as voir dire,
evidentiary rulings, and jury instructions. Id. at
cites three district court cases from other circuits where a
defendant waived a jury trial over the Government's
objection. One deals with religious freedom, United
States v. Lewis, 638 F.Supp. 573 (W.D. Mich. 1986),
which is not at issue in this case. In U.S. v.
Braunstein, the court concluded that a case involving
five defendants, 19 counts for Medicaid fraud and income tax
covering both state and federal laws, 40 witnesses, and 465
proposed government exhibits warranted a non-jury trial. 474
F.Supp. 1, 3, 13-18 (D.N.J. 1978). U.S. v.
Panteleakis also dealt with multiple defendants and
charges, along with the added concern that “[t]here
have been inflammatory and prejudicial articles appearing in
local newspapers…making it impossible to obtain a fair
and impartial jury.” Id.
Court is not persuaded that the instant case contains such
compelling circumstances that a trial by jury would result in
the denial of an impartial trial for Defendant. The
indictment charges one Defendant with one offense. (ECF No.
10). “The government's expert notices show intent
to call one expert in the area of forensic toolmark
examination.” (ECF No. 73 at 7). Neither toolmark
analysis nor the mens rea requirement for the case
appear to be beyond the comprehension of an average juror,
especially with the assistance of an expert and the trial
judge. While Defendant asserts that “a jury trial would
probably double the length and the cost of the trial”
due to the length of jury selection (ECF No. 72 at 8), the
Court is not persuaded that jury selection would take a
prejudicially long amount of time.
significant portion of Defendant's argument relates to
the perceived prejudice and passion surrounding the October 1
shooting and purchasing guns through unlicensed sellers.
(Id. at 8-10). Defendant argues that,
“[u]nlike a judge, jurors may simply be unable to set
aside their passion and prejudice to render a fair and
impartial verdict in this case.” (Id. at 10).
The Court has addressed similar concerns in two previous
orders. In denying a motion to transfer venue, the Court
discussed “available jury selection procedures to
remedy the prejudicial effect of publicity” and held
that “the publicity pertaining to the charges in this
case is not ‘so pervasive and inflammatory' that it
would deprive [Defendant] of a fair trial.” (ECF No. 36
at 9). In ruling on a motion in limine, the Court excluded
some evidence relating to the October 1 shooting and
“emphasize[d] that procedural safeguards, such as jury
instructions, will help minimize the risk of prejudice”
from the evidence being presented. (ECF No. 47 at 8). These
statements by the Court are equally applicable to
Defendant's motion to waive jury trial.
the trial will present challenges, the trial judge will
ensure the Defendant an impartial trial.
and for good cause shown, IT IS HEREBY RECOMMENDED that
Defendant's Contested Motion to Waive Jury ...