*1 McLAUGHLIN, Before GANEY and Judges. ADAMS, Circuit Reargued SEITZ, En Banc McLAUGHLIN, Judge, Chief GANEY*, ALDISERT, DUSEN, VAN ROSENN, GIBBONS, MAX HUNTER, JAMES ROSEN and Judges.
OPINION OF COURT Judge. SEITZ, Chief appeals of sen- report tence for failure to Army. induction into the United States App.U.S.C. contentions Several setting grounds are raised as aside However, in conviction. view disposition we need of our of whether it consider the issue permissible for the district grant of defendant’s to condition his trial on defend- for con- of fact and ant’s waiver Judge Ganey hearing before final participated died but and consideration decision. *2 798 (9th 1957);
Prior to trial defendant Cir. Cesario v. United States, 232, (1st a 1950). his ease jury. Noting tried to the without court F.2d 200 233 Cir. jury, Findings “by proper a of fact are essential to asking resulting find to [defendant of a conviction was] review law,” non-jury the facts as well the court from important a This was an grant request declined “unless to consideration when present 23(c) promul . [the . . text of defendant] [d] Rule gated, altering pre-existing not have to find find- the Court law and [would] ings requiring of law.” special of conclusions fact and trial to make findings, requested. this condition and Defendant acceded to See Barron & Holtzoff, At Proc., a the case was 2124 heard Federal Prac. & (Rules ed.). court Compare close of all the the merely evidence United States v. finding 1218, (7th defend- Weber, its order entered 437 F.2d 1221 Cir. 1971) “guilty.” appeal States, followed. This ant with Lofland v. United 357 472, 1966). (9th F.2d 477 Cir. Rule 23 note at the outset that We (c) request entitled the defendant to its of conditioned special findings. and receive Howard v. non-jury request for a trial defendant’s States, 1102, (9th United 423 F.2d of of on a him both waiver 1970). Cir. applica The of law. and conclusions fact however, requires ble course, Of defendant here at no . and . a “make court requested special time How request facts find the in addition on ever, request such indeed 23(e), specially.” F.R.Crim.P. Rule pre-trial in of futile view the waiver course, are, legal of conclusions non-jury Detailed appropriate imposed upon the court. proceed- in 1104, Cf. id. at The defendant was there aof facts particularly ings, when the obligation request fore under no to legal suggest principles which several case can court Cf. have invoked. not, by procuring pre-trial 19, Ethics of Judicial The Canons Canon waiver, responsibility avoid to make See Association. Bar the American presented of fact when with a Rivera, F.2d v. United States timely request. As the court said in 1971). do (2d We Cir. n. 5 138 & right Howard, supra: “The defendant’s decide, however, whether here trivial, to such case mandated facts im is not to be exercise conclusions formulate paired by pressure exertion of court conclude the court.” when conditioned erred request what relief It remains to considered on waiver the defendant. accord We request that of his him reviewed the record and that credi- the facts bility pervasive- issues are require ness a new trial. there- Findings as to fact judge who fore think primarily the defend aid criminal cases fairly in a tried this case is preserving questions ant delineating findings required Rule 23 make the appellate court aid the (c) imposing sentence. on which the factual bases 8 Moore’s See rested. court’s decision sentence based ed.), Para. (Cipes, 2d Practice Federal the case is vacated and suggested Indeed, has been 23.05. for further remanded are under accordance preserving prerequisite opinion. concerning the issues Judge particular fact. See Wil McLAUGHLIN concurs existence of Circuit United 250 F.2d in the result. son Judge (dissenting). No such was ever and in addition, defendant never dissent from the way imposed by to the condition majority opinion of the I do not because believe that what the court did waiver seeks circumvent constitutes objection by fact arguing that he made no *3 objected beginning that to have would very trial,1 At the incurring himon to the risk of jury. the defendant moved to waive the anger judge. nothing the judge informed the defend- advantages in the record indicates that jury ant of of a trial and the judge was so emotional with demand a of defendant’s special findings he by issue of judge explained jury would reacted in trial, a manner adverse would re- the defendant spe- linquishing the defendant had to a unanimous cifically findings “asking made, verdict and would be objected facts as well as the law.” The statement to following going not then ensued: make * * * clearly the record demonstrates I under- “THE Do COURT: that defendant made an advertent deci- you stand want to do? that is what advantage sion would be to his true, THE That DEFENDANT: proceed court, with a trial before sir. special findings even without Later, of fact. Very THE The Court COURT: well. adjudged guilty after he was responsi- accept doesn’t need to such a charged, offense the defendant still bility and the will not unless Court appeared election, satisfied with you agree Court will did not he raise the issue of the condi- have to of fact and con- jury post- tional waiver of a trial in his clusions of law. trial motions. [DEFENDANT’S ATTORNEY]: The venerable but universal rule re- will to that. quiring parties objectionable to call THE You are satisfied to do COURT: rulings to the attention of the trial that? may before the matters be raised on Yes. [DEFENDANT’S ATTORNEY]: upon is not based an anachronistic you THE Are COURT: reliance on ancient and for- obsolete Livingston? Instead, Mr. malisms. the rule serves a real purpose and vital allows trial THE I am. DEFENDANT: potential to avoid or correct your ? THE That is own wish COURT: they they errors before occur or while my That is own DEFENDANT: readily can still be If the de- remedied. wish.” posed to the alternative Federal Rules condition, the district court’s provides: Criminal Procedure “In a case well have allowed jury shall tried without a jury the waiver of the without the im- general finding and shall in addi- conditions. the dis- tion on find the facts modify position, trict court declined to ” ** added.) (Emphasis question preserved Accord- then ingly, request, absent a defendant would be whether conditioning have been entitled to abused its discretion June, Apparently relying This case was tried in Thus the district court was Singer mandated v. United 380 U.S. (1965). decision will have to be made the dis 13 L.Ed.2d S.Ct. trict court from a written record almost year two old. hand, the waiver of on the the court on other have not made trial before findings. procedure obligatory, But where but have may a district vided that in criminal reverse matters upon plain request. occurred. See where has be made error things 52(b). stand As Fed.R.Crim.P. knowledge among common now, question us is whether making judges that the task of a defend- is committed when error findings in civil or criminal cases either counsel, ant, upon of retained advice tedious, frequently is often and one that to obtain order waives other- consumes as much time trial. dispensing wise be saved the course of jury Requiring such find- with a ings may case, does not of this In context negative effect on well have a com- appear has error willingness to con- intelligent Defendant made mitted. trials. duct knowing waive decision *4 accept a verdict error which and Our .function is to correct Obviously litigants. de- rights from affects substantial begin- beyond province felt at the and his counsel to sit back our ning grade every of ac- that this course teachers and like school advantageous ruling produced more than often tion was ceeding of a lower court— great during dispatch after the strain Even with and announced, defendant and tension of a trial —as were Although superior his election. paper. with we are a was not dissatisfied test schema, appeal, apparent Only judicial after- do not on and To thought, raised. has the issue been our have license substitute plays preju- in these circumstances relief lower courts absent for that of the ruling and made “fast loose” To reverse dicial error. precedent parties process, good to which and sets a counselled which faith with absence of cannot subscribe. in the were represent- insensitivity incompetently error, displays uncounselled or judicial litigation or in the ed, had realities revealed that the system. unyield- abrupt, peremptory, arbitrary, impact of direct above, the As noted uncompromising, ing, well be discourage holding today’s will be error. committed had granting non-jury trials judges from here, not disclosed disturbing, such facts are equally An criminal cases. does not admit to record although and the result direct less from lawyers refrain encourage such inferences. deci- questionable voicing It is not without luring courts hope sions proceedings on rule Litigation is an into reversible rule substantially from different game truth, attempt at to arrive proceedings. The in civil at- participants are wits in which pertaining civil rule framers prize is torneys mandatory for made reversal. sitting reasons, I all these For and con- of fact dissent Fed.R. of law. See this case. the criminal The draftsmen Civ.P.