*1 court shall apply. In proceedings before a court, judge of the district judgments procedures and orders and the local rules of set forth in the district Bankruptcy Interim Rule 8004 court shall apply.

apply applications appeal leave to interlocutory orders of bankruptcy judges. (g) Bankruptcy Rules and Title IV of Pub- by Modification judge district or the lic Law 95-598 bankruptcy judge of appeal gov- time for Courts of bankruptcy procedure and by erned Rule 802 of the Bankruptcy Rules. bankruptcy shall governed continue to be (A) (2) judge A district shall review: Title IV by of Public Law 95-598 as amend (i) an order or judgment entered under by ed and the bankruptcy prescribed rules paragraph (d)(2) a timely if notice of by Supreme the United States appeal has if timely been filed or pursuant to 28 U.S.C. 2075 by and limited § application for leave to appeal has been 405(d) Act, Sec. to the extent granted; such Title and Rules not inсonsistent (ii) an or judgment order entered under with the holding of Pipeline Northern Con paragraph (d)(2) if the bankruptcy Co., struction Co. Marathon Pipe Line judge certifies that circumstances re- - U.S. -, L.Ed.2d quire that the order judgment or approved by a judge, district whether or not was the matter controverted be- (h) Effective Date and Cases Pending

fore the or bankruptcy judge any no- This rule shall become effective Decem- tice appeal apрlication or for leave ber and shall filed; apply to all bank- appeal ruptcy cases and proceedings governed (iii) a or proposed judgment order lodged Bankruptcy amended, ofAct 1898 as paragraph (d)(3), under whether or not and filed on after Any or October 1979. any notice of or appeal application for bankruptcy pending leave matters before a appeal has been filed. bank- on ruрtcy judge December 1982 shall be (B) review, In conducting district deemed judge. referred judge may hearing may hold a receive such as appropriate may evidence ac- reject,

cept, or or in modify, part, whole judgment

the order or bankruptcy

judge, give and need no deference to the

findings bankruptcy judge. At the review,

conclusion judge the district

shall enter appropriate an or judg- order ment. America, UNITED STATES of (3) When bankruptcy judge certifies Plaintiff-Appellee, require that circumstances immediate re- view judge any district matter MARTIN, Mickey Eric Charles a/k/a subject (d)(2), to review under paragraph Arrington, Milton judge the district shall review Defendant-Appellant. enter order judgment as soon as possible. No. 82-3152. (4) It shall be the the parties burden of Appeals, States Court proceeding to raise the issue of whether any Sixth Circuit. proceeding prior

is a related time entry of the order of judgment of the on Briefs Nov. Submitted district after review. Decided (f) Local Rules proceedings bankruptcy before

judge, the local bankruptcy rules *2 Martin,

Eric se. pro C. McDonald, Frederick H. Asst. Atty., Ohio, ‍​​‌‌‌​‌​​​​‌​‌​​‌​​‌‌​​​‌​​​‌‌​‌​​‌​​‌‌‌​‌​​​​​‌‍Toledo, рlaintiff-appellee. JONES, KEITH Before Circuit *3 PECK, Judges, and Judge. Circuit Senior KEITH, Judge. Circuit May On a three count indict- against ment was filed defendant-appellant Martin, Eric Charles a/k/a Mickey Arring- ton, and two co-defendants. Count one al- leged April 24, that on the defendants Newark, kidnapped two females in New Jersey transported them Ohio in violation of 2 (aiding 18 U.S.C. and abet- § ting). alleged The second count that Mar- tin used handguns kidnap- to commit the pings in violation of 18 U.S.C. 924 and § alleged The last count § de- transported fendants stolen 1977 Buick Jersey from New in Ohio violation of 18 U.S.C. § § On June Magis- United States trate Diagnostic ordered that the Court & Treatment Center conduct mental exami- nation of Martin. psychiatric report, dated June concludes Martin sane, possessed intelligence, average previously and that he had been incarcerat- prisons ed in and mental institutions. The report description also contains a detailed experiences psychiatric hospi- Martin’s August tal as an adolescent. On competent the district court found Martin to stand trial.

On September just prior to the trial, beginning following discussion occurred in open court:

THE ready pro- COURT: Are counsel ceed? Yes, your

MR. TOMCZAK: Honor. Yes, MR. McDONALD: Your Honor. impression THE I have the COURT: is question there some of a waiver of jury trial in this case. Yes, your

MR. TOMCZAK: Honor. THE What COURT: is situation that? about the women Martin forced all, point, like gun I would First MR. TOMCZAK: of the stolen car. the trunk name climb into My record. client’s to correct I an alias Arrington. believe Micky morning hours early In the the indictment. appeared on and robbed defendants abducted time has been Arrington at this Mr. station in Has- gas at a Taylor Manuel to waive trial of his advised Tay- Manuel Jersey. New Heights, brouck willing to he is point, At this jury. Pennsylva- somewhere was released lor prosecution and the right, waive that allowed to were then two women nia. The being consent to the willing to The de- compartment. passenger sit in the to this Court. tried a motel in drove to subsequently fendants correct, your That is having Pennsylvania. MR. McDONALD: After Bloomsburg, women, Honor. with sexual intercourse Cleveland, Ohio. group drove fact, Arring- Is that a Mr. THE COURT: *4 ton? Cleveland, marijua- purchased Martin In sir. MR. ARRINGTON: Yes drug deal- from a Cleveland na and cocaine however, or- later, Martin er. Moments written Do we have a THE COURT: car into the stolen drug dealer dered the have usually prefer I wаiver form? was to be going him he and informed possible. waiver if jury a written mon- drug dealer’s Ultimately, robbed. have Does the Clerk MR. McDONALD: watch, cocaine ring, golden and a a a ey, one? apparently Both women were stolen. spoon one, ap- THE The Clerk hasn’t COURT: The during robbery. were her get will one from parently. She defendants, and Wil- the two women three return. We will await her office. travelling eventually left Cleveland liams a form was (Thereupon, Turnpike. the Ohio westbound on signed by parties.) along released Williams The defendants please, If the THE CLERK: next a ride to the He hitched turnpike. clerk has received the waiver of gas and informed plaza service turnpike form. he had been abduct- attendant station defendant, and the Assist- lawyer, The his were Police robbed. The Ohio State ed and Attorney signed ant United then 1980, 25, April At 5:30 a.m. on phoned. waiver form which recited that auto the the stolen troopеr pursued state court consented to parties district into a turn- commandeered defendants had trial ‍​​‌‌‌​‌​​​​‌​‌​​‌​​‌‌​​​‌​​​‌‌​‌​​‌​​‌‌‌​‌​​​​​‌‍waiver. his two co- Martin and pike plaza. service following developed facts were at fled, apprehended but were defendants Martin and a co-defendant bench trial. plaza. at the service time later short of 1980. spring traveled to Minnesota in the 1980, court 9, the district September On 30, 1980, two kidnapped March they On 21, November guilty. Martin On found Jersey. Appar- drove to women and New on the 1980, to life Martin was sentenced were released in New Jer- ently the women weapons on the years kidnapping charge, Jer- The defendants remained in New sey. trans- on the interstate years and 5 charge, During period this sey for about a month. Mar- charge. a motor vehicle portation of co-defendant. Martin met second appealed. tin 23, 1980, three defendants On con- kidnapping vacated This Court Jersey a car in armed themselves and stole for resen- the case and remanded viction released City, Jersey. New The defendants had not that Martin ground on the tencing holding gun the driver unharmed after from the appeal of his been advised his minutes. The defend- twenty head for 25, On November conviction. kidnapping auto to Newark ants then drove the stolen new trial for a 1981, filed a motion Martin At they kidnapped prostitutes. where two jury.1 to bе conducted before a This Williams, motion tor judge. See 399 U.S. at 100, 1905; filed this after Court had vacated Louisiana, 90 S.Ct. at Brown sentence, 331, original 323, but new 2214, 2221, before the sen- U.S. S.Ct. tence was court imposed. (1980). The district im- L.Ed.2d 159 protection This creates posed the a great same life sentence that had ini- having societal interest in criminal tially imposed been the kidnapping juries. on trials conducted before Patton See charge. appeals arguing 276, 312, Martin his 50 S.Ct. 253, 263, knowing waiver was not (1930); and in- L.Ed. 854 Gannett Co. telligent. DePasquale, 443 U.S. 99 S.Ct. 2907, (1979); 61 L.Ed.2d 608 Dimick v. Schiedt, 293 U.S. 55 S.Ct.

I. (1935). fact, public L.Ed. 603 In (cid:127) JURY TRIAL interest trials great is so that de- Trial jury is fundamental fendants cannot waive their to trial American criminal jurisprudence. by jury except under certain conditions. Louisiana, Duncan v. State Patton, 281 U.S. at at 88 S.Ct. 20 L.Ed.2d reh. 263; Singer, 380 U.S. at 85 S.Ct. denied 392 U.S. at fact, L.Ed.2d 1412 the role of the as a finding body fact in criminal cases II. indispensible preserved so it WAIVER OF JURY TRIAL III, Constitution. Article 2 of the Consti § *5 Criminal defendants may waive crimes, tution “The states: Trial of all ex right their to by jury trial only if four cept in the cases of impeachment, shall be First, conditions are met. the waiver must by Jury ... The ”. Amendment Sixth Second, be in writing. government the at the Constitution is even more explicit: “In must torney Third, consent to the waiver. all criminal prosecutions, the accused shall the trial court must approve the waiver. enjoy to a speedy public trial, and Fourth, the defendant’s waiver must vol by impartial an jury of the State dis untary, knowing intеlligent. trict wherein crime shall have been committed ”. ... Federal Rule of Criminal Procedure 23(a) requires that the defendant waive his purpose The trial is to trial by jury writing. to Rule 23 prevent governmental oppression arbi pertinent part: states in to required “Cases trary Duncan, law enforcement.2 See 391 be tried jury shall be so tried unless 155, 156, 1450, 1451; at U.S. 88 at S.Ct. defendant a jury waives trial in writ Singer States, 380 U.S. 85 ” ing .. .. writing requirement This is de 783, 788, S.Ct. 13 (1965); L.Ed.2d 630 Wil signed impress to the defendant with the Florida, 78, 100, liams 399 90 U.S. S.Ct. gravity of the right relinquished рro 1893, 1905, 26 L.Ed.2d 446 The jury vide the best evidence of the defendant’s gives the defendant “an inestimable voluntary consent. See Pool v. United safeguard against corrupt or overzea States, 344 F.2d Cir.), 945 cert. prosecutor lous and against compliant, denied 381 15 U.S. S.Ct. L.Ed.2d biased, or eccentric judge.” Id. The pro (1965); McCurdy, United States v. tection a jury affords lies in the interposi (9th Cir.1971). F.2d tion of the judgment commonsense of a group impartial laymen between the de Jury trial waivers effective fendant and potentially prosecu- government biased unless attorney consents. 1. This profound motion would have been effective had 2. The trial reflects a reluctance power the conviction been plenary liberty reversed and a new trial to entrust over life and Lee, Duncan, ordered. See United group judges. States one See (6th Cir.1976). 608-610 U.S. at at S.Ct. Patton, 23(a). judging competence Fed.R.Crim.P. U.S. The task of 258, 263; Singer, at at S.Ct. escaped by accused cannot be particular 789, 790; at at Adams U.S. S.Ct. announcing simple rules of tri- delusively McCann, rel. v. United ex U.S. procedure judges al which must mechani- 236 at 87 L.Ed. 268. 269 at 63 S.Ct. question The in each case is cally follow. attorney acting is not as government competent whether the accused was an when he consents to the advocate intelligent, judg- exercise an informed Attorney trial waiver. “The United States this ment —and for determination sovereignty ... of a representative is the question it is of course relevant whether obligation prosecu- whose ... in criminal he of counsel. had advice case, it win a but that tion is not that shall justice Berger done.” v. Unit- shall be ed there an intelli- And whether or not (1935); Singer, L.Ed. 1314 380 U.S. at gent, competent, self-protecting waiver government attorney at 791. The S.Ct. depend an accused must charged weighty with the responsibility circumstances of each upon unique insuring the mode of trial satisfiеs rigorous case. The less enforcement of public conscience that “fairness domi- evidence, greater the rules of infor- justice.” nates the administration of Ad- mality procedure in trial are not ams, at at 241. —these only advantages that the absence of Singer Supreme explained to a jury may layman prefers afford who government

role of the attorney as follows: variety to make his own defense. In a recognizes adversary The Constitution ways by jury may subtle be restric- system proper as method of determin- Government, ing guilt, layman’s opportunities and the a liti- tive of a as gant, legitimate seeing has a interest freely his case as as he ‍​​‌‌‌​‌​​​​‌​‌​​‌​​‌‌​​​‌​​​‌‌​‌​​‌​​‌‌‌​‌​​​​​‌‍wishes. that cases in which it believes a convic- by jury And since trial confers burdens as tion is warranted are tried before the benefits, well as an accused should be tribunal which the regards Constitution permitted forego privileges its when likely produce as most a fair result. competent him judgment his counsels *6 36, Id. 380 at 85 at 790.- U.S. S.Ct. in the keeping that his interests are safer jury. than of the Occasions, therefore, will arise where the government attorney should not consent to 277, 278, 240, at 63 at 241. Id. S.Ct. proposed jury a trial waiver.3 Second, the trial court bears a substantial court, too, The trial approve must responsibility jealously preserving jury jury 23(a). trial waiver. Fed.R.Crim.P. trials, the constitutionally preferred method Patton, 312, 263; 281 at 50 at U.S. S.Ct. Patton, of criminal disposing of cases. 281 Adams, 277-78, 317 at U.S. 63 at S.Ct. court, therefore, at 312. A not U.S. should 240-241. A trial court has two areas of lightly approve jury the trial waivers: First, responsibility. it should evaluate by jury Trial is the normal and with ability both the mental of the defendant exceptions, preferable occasional the make an intelligent decision and the de mode fact in disposing of of issues of fendant’s awareness of the benefits and grade petty criminal cases abоve the of electing burdens of to forego by jury. trial offenses. In such cases the value and Adams, See United ex rel. McCann v. appropriateness jury of trial have been 320 U.S. 64 S.Ct. 88 L.Ed. 4 and are by long experience, established (1943). Adams, Supreme In the ex only not now to Not must the plained the be denied. responsibility of the trial court as follows: of the accused to a trial consti- imply govern- emphasize government’s ply 3. We do not mean to that that cоn- attorney consenting judgment. ment erred in sent should be a considered present jury purpose trial waiver. Our is sim-

273 jealously preserved, 959, 2172, tutional be jury 543, but S.Ct. 26 90 L.Ed.2d reh. the maintenance of as fact 938, 2240, 399 denied 90 U.S. S.Ct. 26 finding in criminal of body cases is such L.Ed.2d that, importance any before waiver can Moreover, a ignorant defendant effective, govern- become the consent of of the nature of the jury trial cannot ment counsel and the sanction intelligently the value weigh of the safe had, must court be in addition defendant, guard. therefore, A should have express intelligent consent de- both the mental ability and some knowl fendant. And the of the trial court duty edge of the trial right before he is in regard discharged is not to as a Adams, it. allowed waive U.S. rote, mere matter of but with sound and 242; at 63 S.Ct. at United States ex discretion, advised eye with an to avoid McCann, rel. 320 U.S. at at S.Ct. departures unreasonable undue from A knowledge techniсal trial that mode of trial or from any however, right, required. is what is Cf. thereof, essential elements and with a California, Faretta caution increasing degree as of- S.Ct. L.Ed.2d A fenses dealt with increase gravity. defendant is sufficiently informed to make Patton, at U.S. at S.Ct. intelligent if he was aware added). (emphasis Accord: Singer, 280 composed of 12 members of the at (“responsible U.S. at community, may he participate in the selec judgment court”); Adams, trial jurors, tion of the the verdict of at (“considered U.S. 63 S.Ct. at 240 unanimous, must be a judge and that alone approval court”); Patton, 281 U.S. at will guilt decide or innocence should he (“in 50 S.Ct. at 258 the exercise of its waive his right. See United sound discretion to accept [jury trial] Delgado, States v. waiver”).4 Cir.1981). Knowledge of these essential at Finally, trial by jury may only be is generally tributes sufficient to enable a waived where defendant’s decision is defendant a knowing make and intelli voluntary, knowing, and intelligent.5 See gent decision. Patton, 263; at U.S. at Adams, 317 at U.S. S.Ct. at 241.

The safeguard III. afforded right would be lost if either these factors SUGGESTED PROCEDURE were not an every attribute of jury trial case, Martin maintains waiver. The waiver of this important ‍​​‌‌‌​‌​​​​‌​‌​​‌​​‌‌​​​‌​​​‌‌​‌​​‌​​‌‌‌​‌​​​​​‌‍right colloquy concerning the jury effective only product it is not a where waiver was “insufficient as a Adams, duress or coercion. See at 242; law” to inform the court that he *7 S.Ct. at had the United States execute, Scott, v. (7th Cir.1978); capacity comрetency 583 F.2d and to the Marcello, United States v. complains F.2d waiver. Martin also that he was (5th Cir.1970), narcotics,6 cert. denied 398 U.S. to mentally addicted was not suggest 4. We do not the by jury that district court 5. To characterize the waiver trial of as merely beg consented to the waiver as a of question rote. a “trial tactic” is to the However, importance we do stress the of ignore the importance and of constitutional trials, preserving jury court’s role in the consti- right. hardly A defendant can be said to make tutionally preferred mode of trial. See Patton strategic jury right a decision to his waive trial States, 276, v. United 281 50 S.Ct. if he is not aware of the of nature (1930). Ultimately, L.Ed. trial consequences of its waiver. responsibility ensuring courts bear the for vitality every continued of defendant’s absolute present 6. The record contains some minimal jury to demand a in trial cases above evidence which addresses Martin’s second ca- Id., grade petty Singer offenses. v. United argument pacity that he was addicted to nar- States, L.Ed.2d 630 present is a illustra- poignant been in- The action properly and had not competent, waiving jury consequences waiver propensity jury formed of tion of trial responds by noting government The trial. tedi- to collateral and spawn litigation cases that the Martin has not demonstrated that pro- of the record. Collateral оus reviews knowing intelligent. not waiver was ceedings, obviously, preferred are not the is well taken. government’s position The competency procedure determining waiv- jury of a to execute a trial defendant that was Martin’s contention he appropriate- at the time he exer is most mentally incompetent er. This determination waiver is unfounded. jury cised the trial is ly made on the record before the waiver trial, the court prior Just threе months colloquy contemporaneous A executed. undergo psychiatric ordered that Martin trial jury with before the the defendant report psychiatric con examination. could create a record waiver is executed average intelligence that Martin had cluded withstanding subsequent chal- capable of sane. The trial court did that and was all lenges, responsibility, the court’s fa- satisfy necessary subsequent absent was behaviоr review, appellate con- intelligent cilitate indicate the com which would defendant’s resources, judicial and enhance serve scarce examined. See again should petency of criminal convictions. finality Smith, Pate v. (6th Cir.1981). F.2d DeRobertis, F.Supp. at 905. Thus, incompetence while mental is suffi impeach waiver,7 trial jury cient to Mar require is no constitutional There possessed capacity tin mental to make ment conduct on the record that a court an intelligent waiver. colloquy prior with defendant Martin also contends his deci Scott, 583 F.2d 362. jury trial waiver. was his unknowing attorney sion because However, of the importance the manifest never informed of the him benefits and unsatisfactory na right and disadvantages executing compels this proceedings ture of collateral representa waiver. counsel’s Admittedly, following suggestion. make the only are the tions affirmative еvidence that implore personally We the district courts to Martin informed dimensions inform defendant the benefits each right. However, his Martin’s bald prior trials on record burdens of affidavits, allegations, supporting without See, e.g., proffered waiver. accepting a simply enough impeach counsel’s States, 633 F.2d v. United Witherspoon representations. On the record it v. United 1242, 1247 (6th Cir.1980); Estrada for Martin appears per counsel has States, Cir.1972); 457 F.2d formed in a consistent manner with that David, United States 511 F.2d profession. other criminal in his attorneys Mitchell, United States (D.C.Cir.1975); Beasley United 491 F.2d (3rd Cir.1970); F.2d (6th Cir.1974). competency Counsel’s Hunt, (4th Cir. States v. trial, aspects other Martin’s back 1969). minimum, a should defendant At ground, the waiver form8 other of 12 composed that a be informed is factors in the record are sufficient for this partici community, may he members of knowing Court to conclude the waiver was intelligent. jurors, the verdict pate the selection of note, required Federal cotics at time of the waiver. 8. The form We however, 23(a) primarily evidence insufficient Rule of Criminal Procedure *8 impeach evidentiary requirement insures trial waiver. which evidence of defendant’s vol there is some untary provides David, See, It minimal evidence e.g., consent. v. United States 7. 511 F.2d separate question Turner, 355, on the whether (D.C.Cir.1975); Acosta v. 361 666 See United knowing intelligent. (5th Cir.1982); Hatcher v. United F.2d 949 David, 511 F.2d 355, (D.C.Cir. States, States v. 361 (D.C.Cir.1965); Naples v. 364 DeRo 1975); States, States ex Williams v. United rel. 618, (D.C.Cir.1962). United 307 625 F.2d bertis, 899, F.Supp. (N.D.Ill.1982). 905 538

275 unanimous, must be and that a requiring rule trial courts personally in- guilt alone will decide or innocence terrogate prior defendants to accepting a should he waive his trial right. See I waiver. would follow lead Delgado, United v. 890 States F.2d adopted of those courts which have such a (7th Cir.1981). See, e.g., Scott, rule. v. United States (7th Cir.1978). approach F.2d That Today, join we decline to several courts helps to only guarantee that all waivers of which adopted mandatory have supervisory the essential to a right will be rules requiring personally trial courts to knowing intelligent, but does so in a interrogate prior accepting defendants which way directly judicial most advances jury trial waiver. See United v. States economy. Rulemaking through exercise Scott, (7th F.2d Cir.1978); supervisory powers particularly appro- States, Hawkins v. United 385 A.2d priate in these circumstances. See United (D.C.App.Ct.1978); Biddle v. Mary State of Walters, v. (6th States land, F.2d Md.App. 399, 400-403, 392 A.2d Cir.1981). I adoption find of a clear (1978); 101-103 Ciummei v. Common eminently preferable rule to a mere wealth, 1186, 1189 exhor- 378 Mass. 392 N.E.2d which provides guidance tation little We confident such rule district court. will unnecessary since district courts will take a few moments and inform defendants

of their on the record.

These few minutes will avoid the trouble

some, consuming time task which confronts

this today. Court

IV.

Martin’s final contention is that the evidence was insufficient to sustain his con Wayne BOICH, d/b/a W.B. Coal viction. This contention totally without Company, Petitionеr, merit. In reviewing the sufficiency claims, evidence this must Court sustain the FEDERAL MINE SAFETY AND trial court determination “if there is sub COMMISSION, HEALTH REVIEW evidence, stantial the view fa taking most Neal, Jr., Respondents, Richard W. Government, vorable to it.” support Glasser v. United 680 (1942). L.Ed. Raymond Donovan, Secretary J. Goble, United States F.2d Labor, Intervenor. (6th Cir.1975); Rosinski, United States F.2d Cir.1973). theOn No. 81-3186. record, overwhelming there is evi Appeals, dence guilt. Circuit. Sixth Accordingly, the judgment entered district court is Argued May affirmed. Decided JONES,

NATHANIEL R. Judge, Circuit concurring.

I concur in the opinion majority but write

separately emphasize single point. importance

manifest to trial unsatisfactory ‍​​‌‌‌​‌​​​​‌​‌​​‌​​‌‌​​​‌​​​‌‌​‌​​‌​​‌‌‌​‌​​​​​‌‍and the nature of collat-

eral proceedings prompts me to urge

formulation of a mandatory supervisory