Error Overturns 2 Drug Dealing Convictions

The cocaine dealing convictions of two people who were sent to prison after a non-jury trial in Los Angeles federal court were overturned Monday because a judge failed to notice that they had not formally given up their right to a jury trial.

The unusual foul-up involved the failure by defense attorneys to file a written waiver of the right to jury trial. That went unnoticed by both U.S. District Judge Consuelo B. Marshall and the federal prosecutor in the case.

Neither of the convicted drug dealers had wanted a jury trial, accepting the advice of their original attorneys that they would have their best chance in a non-jury proceeding before Marshall.

In reversing their convictions, a three-judge panel of the U.S. 9th Circuit Court of Appeals emphatically rejected government claims that the oversight was merely a technical violation of federal court rules.

Not only was there no written waiver of the right to jury trial, the 9th Circuit panel noted, there was also no record that the trial judge had obtained even an oral waiver by questioning the defendants to make sure that they understood that they were giving up one of their basic constitutional rights.

“The government contends that . . . the failure to afford the appellants a jury was of no significance,” Judge Stephen R. Reinhardt wrote on behalf of the three-judge panel. “While a constitutional guarantee may ordinarily be waived, to argue as the government does here that a failure to waive constitutes a technicality is to denigrate the very existence of the constitutional right at issue.”

Amnon Saadya and Marco Abkasis, two Israeli citizens who were residents of Los Angeles, were found guilty of possession of a kilogram of cocaine with intent to sell after a two-day trial in August, 1983. Each was sentenced to six years in prison.

Paul J. Fitzgerald, the original defense attorney for Saadya, said he was surprised when he heard that there was no written waiver of a jury trial. He had assumed that he had filed one, Fitzgerald said, but conceded that he must have “inadvertently” forgotten about the routine procedure.

“In view of the outcome, I’d like to claim it was a slick move on my part,” Fitzgerald said. “But it was really just an oversight. It was a mistake both by the defense and by the prosecution for not catching it.’

Victor and Janet Sherman, who represented the convicted drug dealers on appeal, were quick to notice the absence of any waiver, however, when they started going through the transcripts of the trial.

“It’s a very unusual omission,” Victor Sherman said. “When we noticed it, I rubbed my hands together and said, ‘We just won the case.’ It’s the sort of thing that’s open and shut. You just don’t give up a jury trial without a written waiver.

“I laughed when I heard the government’s arguments that this was just a technicality,” Sherman continued. “Every time something happens that the government doesn’t like, they call it a technicality. This would be like a policeman coming in and saying, ‘Gee, I’m sorry I forgot to read him his Miranda rights.’ ”

In a footnote to the 9th Circuit ruling, which was joined by Judges Dorothy W. Nelson of Los Angeles and Robert Boochever of Anchorage, Alaska, the appellate judges expressed their sympathy for Marshall.

“We have no reason to believe that the district judge would have failed to correct the plain error had it been called to her attention by the parties,” the opinion stated.