     Case: 09-20763 Document: 00511433320 Page: 1 Date Filed: 04/04/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             April 4, 2011
                                     No. 09-20763
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CLARENCE LEWIS, III,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CR-682-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Clarence Lewis, III, was convicted in a bench trial of one count of
conspiracy to commit wire fraud and four counts of wire fraud, and he was
sentenced to 180 months of imprisonment and three years of supervised release
on each count, to be served concurrently.                He was also ordered to pay
$3,567,328.05 in restitution.
       Lewis argues that his waiver of his right to a jury trial in favor of a bench
trial did not comply with the requirements of Federal Rule of Criminal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-20763 Document: 00511433320 Page: 2 Date Filed: 04/04/2011

                                  No. 09-20763

Procedure Rule 23(a) and was not made knowingly and voluntarily. We assume
without deciding that the de novo standard of review applies.
      Concerning the district court’s compliance with Rule 23(a), Lewis contends
that the waiver was not explicitly approved by the district court or consented to
by the Government as Rule 23(a) requires. However, the record belies this
argument.     Lewis also contends that a waiver that was filed and signed
electronically only by his attorney did not comply with Rule 23(a)’s requirement
that the waiver be in writing. However, regardless whether this waiver met
Rule 23(a)’s writing requirement, in light of Lewis’s apparent intelligence and
understanding of the court’s admonishments and questioning concerning his
waiver of a jury trial in favor of a bench trial and in light of Lewis’s failure to
object to a bench trial, Lewis’s case came within a limited exception to the
writing requirement. See United States v. Page, 661 F.2d 1080, 1080-83 (5th Cir.
1981).   Furthermore, the record indicates that Lewis’s waiver was made
expressly and intelligently. See United States v. Mendez, 102 F.3d 126, 130 (5th
Cir. 1996).
      AFFIRMED.




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