                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JUN 2 2000
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                          No. 99-1340
                                                       (D.C. No. 97-CR-338-D)
 JAMES E. HINTON,                                       (District of Colorado)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before EBEL, PORFILIO, and MAGILL,** Circuit Judges.




       Appellant James Hinton was convicted, after a jury trial before a U.S. Magistrate,

of theft of government property valued less than $100.00, in violation of 18 U.S.C. § 641,

and of driving while ability impaired, in violation of § 42-4-1202(1)(b), C.R.S. 1973 as




       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

        Honorable Frank J. Magill, Senior Circuit Judge for the United States Court of
       **

Appeals for the Eighth Circuit, sitting by designation.
assimilated by 18 U.S.C. § 13. Mr. Hinton appeals on the ground he did not voluntarily

waive his right to be tried before an Article III judge.

       Under Rule 58 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 3401,

defendants accused of a certain category of federal misdemeanors may waive their

constitutional right to trial before an Article III judge in favor of trial before a United

States magistrate judge. Mr. Hinton made such a waiver orally at his arraignment.

However, he now asserts that waiver was insufficient because it was oral rather than

written. This argument rests on a divergence that existed between Rule 58 and § 3401 at

the time of Mr. Hinton’s trial in June 1997. At that time, Fed. R. Crim. P. 58(b)(3)(A)

provided that waiver of the right to trial before an Article III district judge in favor of trial

before a United States magistrate judge had to be written. However, 18 U.S.C. § 3401(b)

provided that such waiver could be either in writing or orally on the record.1           Mr.

Hinton contends Rule 58 should control over the conflicting statutory provision. We

disagree. Although Congress delegated to the Supreme Court the power to prescribe rules

of criminal procedure in 18 U.S.C. § 3771, this delegation did not “limit the power of

Congress to regulate practice and procedure and to make future statutes inconsistent with

the rules.” CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 3d

§ 32 (3d ed. 1999). See also Hawkins v. United States, 358 U.S. 74, 78 (1958)




       This divergence disappeared in December 1997 when Rule 58(b)(3)(A) was
       1

amended to allow either written or oral waiver.

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(“Congress or this Court, by decision or under its rule-making power, 18 U.S.C. § 3771,

can change or modify the rule where circumstances or further experience dictates.”).

       Although there are relatively few instances in which the federal courts have been

called upon to address a conflict between a federal rule of criminal procedure and a more

recently enacted federal statute, in every case, the more recent statute has been found to

modify the rule of criminal procedure. For example, in Government of the Virgin

Islands v. Parrott, 476 F.2d 1058 (3d Cir. 1973), the court addressed a conflict between

Rule 23(a) of the Federal Rules of Criminal Procedure, which required trial by jury unless

the defendant executed a written waiver, and section 26 of the Revised Organic Act of the

Virgin Islands, 48 U.S.C. § 1616, which provided for a jury trial upon request by the

defendant or the government. Noting Rule 23(a) was adopted by the Supreme Court in

1944, while section 26 of the Organic Act was amended in 1958, the court determined:

       The procedural rule embodied in Rule 23(a) of the Federal Rules of
       Criminal Procedure, having been adopted by the Supreme Court pursuant to
       Congressional Authority, was subject to being repealed, amended, or
       superseded in whole or in part by Congress as well as by the Court. We
       think that is exactly what happened here and that by the Congressional
       amendment in 1958 of section 26 of the Organic Act, the procedural
       provisions of that section have superceded, for the District Court of the
       Virgin Islands, the earlier provisions of Rule 23(a).

Id. at 1060-61 (citation omitted).

       The D.C. District Court reached the same conclusion in United States v. Mitchell,

397 F. Supp. 166 (D.D.C. 1974), a case arising from the Watergate affair. There,

Congress passed legislation extending until June 4, 1974, the term of a grand jury which

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under Rule 6(g) of the Federal Rules of Criminal Procedure would have expired on

December 4, 1974. The defendants argued Congress’ delegation to the Supreme Court to

prescribe the rules of criminal procedure deprived Congress of authority to amend or

modify those rules. Id. at 166. The district court concluded Congress had not restricted

its own ability to repeal, amend or supercede the rules of procedure, and that changes can

be made at any time by statute. Id.

       At the time of Mr. Hinton’s trial, the most recent enactment of Rule 58(b)(3)(A)

was December 1, 1993, while 18 U.S.C. § 3401(b) had been amended to allow oral

waiver by the Federal Courts Improvement Act of 1996, Pub. L. 104-317, 110 Stat. 3847,

3849 (1996). We believe, under the logic of Parrott and Mitchell, because the 1996

amendment of § 3401 superceded Rule 58, Mr. Hinton’s waiver was governed by the

more recent statute rather than the older rule.

       Anticipating this conclusion, Mr. Hinton argues that even if § 3401(b) governed

his waiver, the district court erred in finding his oral waiver was “knowing, intelligent

and voluntary.” We review the sufficiency of an oral waiver of a constitutional right de

novo. United States v. Robertson, 45 F.3d 1423, 1430-31 (10th Cir. 1995). In this case,

the record amply demonstrates Mr. Hinton waived his right to trial before an Article III

judge in a voluntary and intelligent manner.

       In Mr. Hinton’s initial appearance on April 25, 1997, the magistrate judge

informed him of his “right to have this matter heard by a U.S. District Judge or with your



                                             -4-
consent before a U.S. Magistrate Judge, myself or one of my colleagues.” At his

arraignment on June 6, 1997, while represented by counsel, Mr. Hinton participated in the

following dialogue with the magistrate judge:

       THE COURT:   Mr. Hinton, you have a right since these involve Class
                    A misdemeanors to have this matter heard by a District
                    Judge or with your consent by a Magistrate Judge. It
                    would be me hearing the case. A District Judge has
                    lifetime tenure, can only be removed by the U.S.
                    Senate, impeachment, after a term of eight years can be
                    removed for cause. You have a right to have a District
                    Judge hear the case, you also have the right to consent
                    to have this matter heard by a U.S. Magistrate Judge,
                    by me. Do you wish to have me handle this case, or do
                    you wish to have the matter heard by a District Judge?
       THE DEFENDANT:      You can handle it, Your Honor.
       THE COURT:   Okay. Has anyone threatened you, coerced you, forced
                    you in any way?
       THE DEFENDANT:      No, Your Honor.

       Mr. Hinton was thus twice informed of his right to choose between an Article III

judge and a magistrate judge. He made his election in the presence of, and presumably

after consultation with, competent counsel. He also indicated affirmatively to the

magistrate his waiver was not the product of coercion. Under these circumstances, we

conclude Mr. Hinton was informed of his right to trial before an Article III judge, and

waived that right in a fully knowing and voluntary manner. The order of the district court

is AFFIRMED.

                                   ENTERED FOR THE COURT

                                   John C. Porfilio
                                   Senior Circuit Judge

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