                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                        ____________________

                            No. 01-20664

                          Summary Calendar
                        ____________________


     UNITED STATES OF AMERICA

                                     Plaintiff – Appellee

           v.

     FREDERIC ERWIN WATTS

                                     Defendant – Appellant


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          No. 00-CR-840-1
_________________________________________________________________
                           June 26, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     Defendant Frederic Erwin Watts appeals his conviction and

sentence for violations of 18 U.S.C. §§ 371, 2113, and 924

(1994).   For the reasons that follow, we AFFIRM the defendant’s

conviction and sentence.


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
                I.   Factual and Procedural History

     On November 2, 2000, Braylon Cloud and Roderick Sanders

entered the Carmine State Bank in Carmine, Texas, and demanded

money from the tellers.   Sanders carried a rifle during the

course of the robbery.    After obtaining money, the two men fled

the scene in a vehicle driven by the defendant, Frederic Erwin

Watts.   Police subsequently stopped the vehicle and arrested all

three men, recovering $17,249 in the process.    On November 29,

2000, a federal grand jury indicted Watts, Cloud, and Sanders on

charges of conspiracy to commit bank robbery, conspiracy to use

and carry a firearm during a bank robbery, bank robbery, and

carrying a gun in the course of a crime of violence, in violation

of 18 U.S.C. §§ 371, 2113, and 924.

     On March 6, 2001, the district court held a hearing on a

motion to suppress filed by Watts.    During the hearing, Watts

testified that the post-arrest statements he made to law

enforcement officers should be suppressed because he had not

waived his right to counsel prior to making the statements.    The

district court denied the motion to suppress.    Immediately

following this ruling, defense counsel Dick Wheelan approached

the bench, and the following dialog ensued:

          THE COURT:       Mr. Wheelan.
          MR. WHEELAN:     Mr. Watts has indicated that
                           he wants to proceed to a Court
                           trial and he wants to waive a
                           jury.
          THE COURT:       Okay.


                                  2
          MR. WHEELAN:   I haven’t – since the
                         statement has just been
                         admitted, I haven’t had a
                         chance to ask him again. If
                         the Court wants to give me a
                         minute, I’ll ask him if he
                         wants to reconsider, but I
                         doubt if he will.
          THE COURT:     Okay . . . .

The court and counsel then briefly discussed the witnesses.

After the dialog at the bench concluded, the proceedings in open

court continued as follows:

          THE COURT:     What are we going to do,
                         lawyers? Are we ready to
                         proceed?
          MR. WHEELAN:   Yes, Your Honor.
          MR. SMITH [the prosecutor]: Yes, Your Honor.
          THE COURT:     Okay. All right. Then who’s
                         your first witness that you
                         wanted to –
          MR. SMITH:     Braylon Cloud. He’s in the
                         custody of the marshal.
          THE COURT:     All right. Call and get
                         Braylon Cloud down. Mr.
                         Wheelan, I understand that
                         we’re proceeding to a bench
                         trial and that Mr. Watts has
                         agreed to waive his right to a
                         jury in this case; is that
                         correct?
          MR. WHEELAN:   That’s correct, Judge.
          THE COURT:     Is that correct, Mr. Watts?
          THE DEFENDANT: Yes.
          MR. WHEELAN:   Your Honor, my client is in
                         his jail garb. His mother
                         brought clothes for him
                         yesterday. Originally we were
                         set to go yesterday morning.
                         And I understand she’s in the
                         court today.
          DEFENDANT’S MOTHER: I am.
          MR. WHEELAN:   Do you have the clothing with
                         you ma’am?
          DEFENDANT’S MOTHER: Yes.


                                3
           THE COURT:     Well, I don’t know if it is
                          that big of an issue when we
                          don’t have a jury involved.
                          Obviously if we were going to
                          have a jury trial, I think it
                          would be important to make
                          sure that the defendant was
                          not dressed in his jail
                          clothing. But given the fact
                          that we’re just going to
                          proceed with a trial to the
                          Court, that is not as much of
                          an issue or an issue at all, I
                          guess, in terms of the Court
                          trial. So, I think we can go
                          ahead and proceed with that.

     The district court then proceeded with a bench trial without

obtaining from Watts a written waiver of a jury trial.     The court

found Watts guilty on all four counts charged in the indictment

and sentenced Watts to concurrent terms of 70 months of

imprisonment for the first three counts and a consecutive term of

84 months of imprisonment for the remaining count, for a total of

154 months of imprisonment.     In addition to the prison sentence,

the district court sentenced Watts to five years of supervised

release, a $400 special assessment, and restitution of $1000.

Watts timely appealed to this court.

                          II.    Discussion

     Federal Rule of Criminal Procedure 23(a) dictates that

“[c]ases required to be tried by jury shall be so tried unless

the defendant waives a jury trial in writing with the approval of

the court and the consent of the government.”    FED. R. CRIM. P.

23(a).   The United States Constitution requires Watts’s case to


                                   4
be tried by a jury.   See U.S. CONST. Art. III, § 2, cl. 3 (“The

Trial of all Crimes, except in Cases of Impeachment, shall be by

Jury.”); see also id. amend. VI (“In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial,

by an impartial jury . . . .”).   Despite the explicit language of

Rule 23(a), this court recognizes a “limited exception” to that

rule’s requirement that a waiver of a jury trial be in writing.

United States v. Mendez, 102 F.3d 126, 129 (5th Cir. 1996).

Although a defendant may orally waive a jury trial under this

limited exception, to be effective, the oral waiver must be

express and intelligent.   Id. at 130-31; see also Patton v.

United States, 281 U.S. 276, 312 (1930), overruled on other

grounds by Williams v. Florida, 399 U.S. 78, 92 (1970).

     Watts concedes that his oral waiver of a jury trial was

express.   Watts argues, however, that the district court erred in

failing to determine whether his oral waiver was intelligent, and

thus erred in proceeding with a bench trial.   Watts argues that

the record sheds no light on whether he intelligently waived his

right to a jury trial.   In doubtful situations, Watts asserts,

courts must find that no waiver was made.   The government

counters that the record shows that Watts was well aware of his

right to a jury trial and that he consented to the waiver of that

right.   Thus, the government asserts that the district court did

not err when it conducted a bench trial.    The adequacy of a jury

waiver is a mixed question of law and fact which we review de

                                  5
novo.     United States v. Farris, 77 F.3d 391, 396 (11th Cir.

1996); see also United States v. Christensen, 18 F.3d 822, 824

(9th Cir. 1994).

      In United States v. Page, 661 F.2d 1080 (5th Cir. 1981),

this court recognized a limited exception to the written waiver

requirement of Rule 23(a).     In Page, trial counsel for a former

university professor on trial for mail fraud informed the court

in chambers that, after considerable thought, counsel and the

defendant had decided to proceed with a bench trial.      Id. at

1080-81.     Upon returning to the courtroom, the district court

asked on the record if the defendant wished to waive a jury

trial, and defense counsel, but not the defendant, answered

affirmatively.     Id. at 1081.   On appeal, the defendant argued

that his oral waiver was invalid under Rule 23(a).      Id. at 1080-

81.     This court held that the oral waiver was valid and that the

trial court was entitled to rely on the representations of

defense counsel.     Id. at 1083.   In reaching this holding, this

court reasoned that the defendant was “a highly educated and

articulate man” who “suffer[ed] neither language nor perceptive

difficulty” and who “in no manner exhibit[ed] [an] objection or

surprise as his counsel waive[d] [a] jury trial on the record.”

Id. at 1082, 1083.    This court concluded that the district court

“did what [the defendant], explicitly by counsel and implicitly

by his own conduct, asked it to do. [The defendant] will not now



                                    6
be heard to say that the court fell into technical error in the

process of effectively carrying out his request.”         Id. at 1083.

       In the instant case, the government argues that Watts, like

the defendant in Page, intelligently and expressly waived his

right to a jury trial even though he failed to sign a written

waiver.    Watts counters that this court’s decision in Mendez

controls the outcome of this case.    In Mendez, the defendant was

indicted for possession with intent to distribute cocaine.        102

F.3d at 127.    Immediately after a suppression hearing and without

a written waiver of a jury trial, the district court in Mendez

conducted a bench trial.    Id. at 128.   The district court

proceeded “as though a bench trial was the default option in

[the] situation” and did not give the defendant an “opportunity

to voice his objection to the dismissal of a venire.”         Id. at

130.    Defense counsel initially stated he had not discussed

waiving a jury trial with the defendant but later stated he

recalled discussing the issue eighteen months earlier.        Id. at

128 & n.2.    Relying on Page, the government argued that the

defendant impliedly waived his right to a jury trial, but this

court found Page distinguishable.     Id. at 130.   This court noted

that the character of the defendant in Page had been “[o]f

critical importance” in the court’s decision.       Id.   Unlike the

educated and articulate defendant in Page, the defendant in

Mendez was from a poor family in rural Columbia, could not speak

or understand English, did not understand the purpose of a jury,

                                  7
had been in this country only a few days before his arrest, and

claimed to have not spoken with his lawyer about a waiver.     Id.

After concluding that the defendant’s character “was a far cry”

from that of the professor in Page, the Mendez court reversed the

defendant’s conviction and remanded the case for a jury trial.

Id. at 130, 132.

     Contrary to Watts’s assertions, Mendez is readily

distinguishable from the instant case.   The record reveals that,

unlike the defendant in Mendez, Watts had no difficulty speaking

or understanding English.   In fact, Watts articulately testified

on his own behalf during the suppression hearing immediately

prior to his oral waiver of a jury trial.   Moreover, while the

defendant in Mendez came from a poor Columbian family and had

only been in the country for a few days prior to his arrest,

Watts had previously been employed as a supervisor’s assistant in

the shipping/receiving department of Dell Computers, and he even

owned Dell stock.   Although he did not graduate from high school,

Watts completed the eleventh grade.   Watts further reported to

the probation department that he was competent in computer

programming.   Thus, Watts is significantly more sophisticated and

knowledgeable than the defendant in Mendez.   Most importantly,

the district court in this case, unlike the court in Mendez, did

not proceed as if a bench trial was the only option.   Rather, the

district court ascertained that defense counsel and Watts had

previously discussed the issue and had decided to waive a jury

                                 8
trial.    After giving defense counsel a chance to confirm Watts’s

desire to waive a jury trial, the district court questioned

defense counsel and Watts in open court regarding that desire.

For these reasons, the result in Mendez is not controlling in the

instant case.

     We find that the facts of this case fall with the limited

exception to the requirement of a written waiver announced in

Page.    Like in Page, defense counsel Wheelan clearly stated to

the court that Watts wished to waive a jury trial.   The record

suggests that Watts and Wheelan had previously discussed waiver

and that the district court gave Wheelan a moment to confirm the

waiver with Watts immediately prior to commencing the bench

trial.    As in Page, the district court in this case then asked

Wheelan and Watts in open court if Watts had agreed to waive his

right to a jury trial.   Both Wheelan and Watts answered

affirmatively.    Then Watts stood silent while the court discussed

the fact that Watts need not change out of his prison clothes for

a bench trial.    These facts suggest that, like the defendant in

Page, Watts intelligently waived his right to a jury.    By

conducting a bench trial, the district court merely did what

Watts, both explicitly and implicitly, asked it to do.

     Watts testified intelligently during the suppression

hearing, discussed waiver of his right to a jury with defense

counsel, responded orally in the affirmative when the district

court asked him if he wanted to waive his right to a jury, and

                                  9
listened without objection to the district court’s comments

unequivocally indicating that there would be no jury.        Given

these facts, we will not allow Watts to now claim that his waiver

of a jury trial was not intelligently made.        As we concluded in

Page, Watts “will not now be heard to say that the court fell

into technical error in the process of effectively carrying out

his request.”   661 F.3d at 1083.       Accordingly, Watts’s oral

waiver of his right to a jury trial was valid, and the district

court did not err by conducting a bench trial.

                           III.   Conclusion

     For the foregoing reasons, we AFFIRM the defendant’s

conviction and sentence.




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