RESPONDENT: United States
LOCATION: Longshore and Warehouse Union
DOCKET NO.: 42
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 380 US 24 (1965)
ARGUED: Nov 18, 1964
DECIDED: Mar 01, 1965
Facts of the case
Media for Singer v. United States
Audio Transcription for Oral Argument - November 18, 1964 in Singer v. United States
Number 42 Mortimer Singer, Petitioner versus United States.
Mr. Chief Justice, May, it please the Court.
The petitioner below was indicted for alleged mail fraud in connection with the conduct of his music publishing business.
Twice in the lower court, he attempted to waive trial by a jury.
In each instance, the government refused to exceed to a waiver of trial by a jury although the learned United States District Judge indicated that he was willing to try the case without a jury.
Parenthetically, Judge Yankwich who tried the case stated and it is in the record at page 29, that he did not believe that 23(a) of the Federal Rules of Criminal Procedure was constitutional insofar as it deprived the defendant of the right to waive trial by a jury.
Accordingly, a jury was empanelled, it tried the defendant over a two-week period, and convicted him on 29 of the 30 counts.
Judge Yankwich indicated that he felt bound by Rule 23(a).
He felt that 23 (a) was an unconstitutional rule.
Judge Yankwich felt, I suppose a great respect for Rule 23(a) having been promulgated by this Court in 1946, and didn't feel disposed to overrule it himself on that level.
Where is his statement in fact in the record?
At the bottom of page 29, Your Honor.
The judge said at the court, “The government of course does not have to waive.
I have always questioned the constitutionality of that provision of the Supreme Court ruling saying that the Government must consent to waiver of jury trial.
The government is not entitled to a jury trial. The defendant did grant of a jury trial.
I always questioned it but I do not want to be the first judge in the United States to raise the point”.
We took an appeal to the United States Court of Appeals for Ninth Circuit and the United States Court of Appeals for the Ninth Circuit affirmed the conviction stating inter alia, that although the points that were raised concerning 23 (a) were not without some persuasive quality.
They were not sufficiently persuasive apparently to overrule 23 (a) on that level.
In oral argument before the Court of Appeals, Judge Barnes suggested that I bring the matter here to test the constitutionality of 23 (a) and after the judgment was affirmed, I petitioned this Honorable Court for certiorari which fortunately was granted and that is how we are here today.
The square issue before the Court is of course the validity of 23 (a) insofar as it purports to require the consent of the government before the defendant can waive a jury trial.
Stated in other way, the question is whether or not the defendant has a constitutional right to be tried by the Court and not by the jury.
Stated still another way, the question and it's the same question is, does the United States of America have a constitutional right to a jury trial in a federal felony case.
Stated still another way and still the same question is can the government block a free and intelligent, involuntary choice on the part of the defendant and his counsel, particularly where the Court consents, can the Government block arbitrarily the defendant's insistence upon trial by the Court and upon waiver of the jury.
Arthur J. Goldberg:
I expect that I would be confronted with that question, Mr. Justice Goldberg.
And the question I've imagined really is, “Am I consistent in my position that neither the judge nor the government has anything to say about the defendant's waiver of a jury trial?”