                           PUBLISHED
                                                Filed: April 17, 2008

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                  v.                             No. 06-4841
                                              (3:05-cr-00313-JRS)
DARRYL BOYNES, JR.,
             Defendant-Appellant.
                                       

                              ORDER

  A member of the Court requested a poll on whether to rehear the
case en banc. Chief Judge Williams and Judges Wilkinson, Niemeyer,
Traxler, King, Shedd and Duncan voted against rehearing en banc.
Judges Michael, Motz and Gregory voted to grant rehearing en banc.

   Because the poll on rehearing en banc failed to produce a majority
of judges in active service in favor of rehearing en banc, rehearing en
banc is denied. Judge Gregory wrote an opinion dissenting from the
denial of rehearing en banc.

                                       For the Court

                                       /s/ Patricia S. Connor
                                               Clerk

GREGORY, Circuit Judge, dissenting from the denial of rehearing en
banc:

   On February 4, 2008, a divided panel in United States v. Boynes
(06-4841) voted to affirm the district court’s decision that Boynes had
intelligently, knowingly and voluntarily waived his fundamental right
to a jury. Because this case raises a very important constitutional
2                      UNITED STATES v. BOYNES
issue, one that I believe should be addressed by the full court, I
requested en banc review.

   The Supreme Court has made clear that an express and intelligent
consent by the defendant must be determined prior to granting a
waiver.* See Patton v. United States, 281 U.S. 276, 312 (1930)
("[n]ot only must the right of the accused to a trial by a constitutional
jury be jealously preserved, [but] before any waiver can become
effective, the consent of government counsel and the sanction of the
court must be had, in addition to the express and intelligent consent
of the defendant.") (emphasis added). In the instant case, the record
prior to the district court’s acceptance of defense counsel’s motion
does not show that the district court made this determination. It is
constitutionally impermissible that a motion made by defense counsel
but unsigned by the defendant, is sufficient to serve as the sole basis
for determining that the defendant expressly and intelligently con-
sented to a bench trial. This is especially true in light of the clear
adversarial relationship between defense counsel and Boynes, and
Boynes’s statement in open court that he wished to have a jury.

   No other Circuit that has faced a challenge under similar circum-
stances has found the waiver effective. The Tenth Circuit, which like
this Circuit does not require a colloquy, faced a very similar case as
Boynes’s and resolved the issue in favor of the defendant. In United
States v. Robertson, the defendant argued that the district court erred
in allowing the case against her to proceed as a bench trial. 45 F.3d
1423, 1430 (10th Cir. 1995). Defense counsel filed a motion waiving
the defendant’s right to a jury and the district court did not conduct
a colloquy to determine whether the defendant understood the nature
of this constitutional right and the consequences of waiving it. Id. The
court found that the lack of a written waiver was "not necessarily fatal
to the validity of that waiver." Id. at 1432-33. However, unlike those

  *The Supreme Court also counseled courts not to discharge their duty
"as a mere matter of rote but with sound and advised discretion, with an
eye to avoid unreasonable or undue departures from [jury trials] or from
any of the essential elements thereof, and with a caution increasing in
degree as the offenses dealt with increase in gravity." Patton v. United
States, 281 U.S. 276, 312 (1930) (emphasis added).
                        UNITED STATES v. BOYNES                         3
cases where an unsigned or unwritten waiver was held to be valid, the
court found that:

      there is nothing in the record before us indicating [the defen-
      dant] personally understood her right and knowingly waived
      it. . . under the circumstances, there is no way for a review-
      ing court to determine whether [the defendant’s] waiver was
      knowing, voluntary, and intelligent. This fact, coupled with
      the strong presumption against finding a waiver of funda-
      mental rights, see Johnson v. Zerbst, 304 U.S. 458 (1938),
      compels us to reject the government’s argument that her
      waiver is nevertheless valid. Accepting the government’s
      argument would require us to permit the waiver of a funda-
      mental constitutional right based on nothing more than con-
      jecture and speculation. This we decline to do. The right of
      trial by jury is one enjoyed by the people as well as defen-
      dants and courts should be hesitant to dispense with that
      right.

Id.

   In Boynes’s case, there was insufficient evidence to support a
determination that Boynes knowingly, voluntarily and intelligently
waived his right at the time the district court granted the motion.
There was neither a written wavier signed by the defendant nor a col-
loquy in which the defendant demonstrated his understanding.

  For the foregoing reasons, I respectfully dissent.
