United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER RE: MOTION FOR A
Waddoups United States District Judge.
the court is Defendant Terry Diehl's
(“Diehl”) Motion for a Non-Jury Trial. (ECF No.
42.) The court held oral argument on this and the other
pending motion in limine on Thursday, October 12, 2017. After
reviewing the parties' briefs, and considering arguments
proffered at the hearing, the court DENIED the motion.
has been arraigned on 14 counts of the Superseding Indictment
(ECF No. 48.)The case has been scheduled for a 10-day
jury trial to begin on November 1, 2017. (ECF No. 28.)
Pursuant to Rule 23 of the Federal Criminal Code and Rules:
“If 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.
On September 14, 2017, Diehl filed a Motion for Non-Jury
Trial, including a Waiver of Jury Trial. (ECF No. 42-4.)
Diehl raised four grounds for requesting a bench trial, in
his motion and at the hearing. First, he claims that like the
Panteleakis case, the multi-count indictment in this
case, involving the bankruptcy and tax codes, is too
complicated for the average juror. (ECF No. 42 at 8.) Next,
he argues it will be too difficult to instruct the jury on
the technical nuances of the case. (Id.) Third, he
avers a jury trial will be longer than a bench trial.
(Id.) Finally, he claims due to pre-trial publicity
it will be difficult to sit an impartial jury. (Id.
at 9) The court is not persuaded by any of these arguments,
and will address each of them below.
v. Panteleakis is distinguishable from this case. 422
F.Supp. 247 (D.R.I. 1976). That case involved an indictment
with 21 counts, multiple defendants, over 1, 000 exhibits and
a three-month trial. Id. at 249-250. This case only
involves an indictment with 14 counts, one defendant, a
couple hundred exhibits and a 10-day trial. The court in
Panteleakis concluded it “is unrealistic to
expect a jury to hear all the evidence over a three month
period, weigh approximately 1, 000 exhibits and then
categorize everything as it pertains to each particular
defendant to the exclusion of others against whom it is
inadmissible without prejudice to all.” Id. at
250. Those concerns are not present here.
“complexity of the issues” is not sufficient
ground to waive a jury trial. Unlike the circumstances in
Panteleakis, technological advances have improved
drastically in the last forty-one years, helping counsel,
parties and courts streamline trial presentation. The court
foresees that counsel and the parties will have to work hard
to make the process clear and reasonable for the selected
jurors. For this reason, pursuant to the Final Pre-trial
Order in this case, the parties are required to submit
proposed voir dire questions, preliminary jury
instructions, final jury instructions and proposed verdict
forms in either Word Perfect or MS Word to chambers'
email address two weeks before the start of the trial. (ECF
No. 28.) The court will review and re-write these materials,
if needed, to ensure they are not too complicated for the
average juror to understand. Also, this is not the first time
this court is conducting a jury trial involving tax issues.
See U.S v. Louis Delynn Hansen, 2:16-cr-00534-CW
(ECF Nos. 118-126.); U.S. v. Douglas R. Madsen,
2:09-cr-808-CW (ECF Nos. 154-162.); U.S. v. De Young et.
al 2:08-cr-525-CW (ECF Nos. 380-393). Thus, the court
does not foresee issues with being able to conduct adequate
voir dire or being able to adequately instruct the
jury regarding the allegations in the indictment. And if
issues arise, the court will address them.
court is also not persuaded that holding a bench trial
instead of a jury trial will drastically reduce the length of
the trial. Only two days have been set aside to conduct
voir dire and select the jury, and these two days
are not part of the scheduled 10-days of the actual trial.
concerns of pre-trial publicity, the court recognizes there
has been some pre-trial publicity in this matter. It plans to
conduct a thorough voir dire process to ensure an
impartial jury is selected as well as to admonish the jury
panel about the importance of disclosing implicit bias.
and foremost, the United States Supreme Court has clearly
held that “there is no federally recognized right to a
criminal trial before a judge sitting alone, but a defendant
can, . . . in some instances waive his right to a trial by
jury.” Singer v. U.S., 380 U.S. 24, 34, 85
S.Ct. 783, 790 (1965). The Court in Singer further
explained that “[t]he ability to waive a constitutional
right does not ordinarily carry with it the right to insist
upon the opposite of that right.” Id.
Accordingly, the Singer Court found “no
constitutional impediment to conditioning a waiver of this
right on the consent of the prosecuting attorney and the
trial judge when, if either refuses to consent, the result is
simply that the defendant is subject to an impartial trial by
jury- the very thing that the Constitution guarantees
the U.S. Attorneys' Office did not consent to a bench
trial, as required by Rule 23 for the court to consider
approval of this motion. Contrary to Diehl's averments,
“Rule 23(a) does not require that the Government
articulate its reasons for demanding a jury trial at the time
it refuses to consent to a defendant's proffered
waiver.” Singer, 380 U.S. at 37. Accordingly,
because the requirements of Rule 23 are not met here, given