United States of America v. UNITED STATES DISTRICT COURT No. 06-72498 FOR THE EASTERN DISTRICT OF D.C. No.…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Petitioner,
v.
UNITED STATES DISTRICT COURT No. 06-72498
FOR THE EASTERN DISTRICT OF
D.C. No. CALIFORNIA,  CR- 03-00384-WBS Respondent,
OPINION ALLEN HARROD, aka Isaac;
MICHAEL LABRECQUE, aka Joseph;
and JULIETTE LABRECQUE, aka Mary
Defendants-Real Parties In
Interest. 
Petition for Writ of Mandamus to the
United States District Court for the
Eastern District of California
William B. Shubb, Senior District Judge
Argued and Submitted
July 26, 2006—San Francisco, California
Filed October 3, 2006
Before: Barry G. Silverman, Johnnie B. Rawlinson,
Circuit Judges, and William O. Bertelsman,1 District Judge.
Per Curiam Opinion
1The Honorable William O. Bertelsman, Senior United States District
Judge for the Eastern District of Kentucky, sitting by designation.
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COUNSEL
McGregor Scott, U.S. Attorney, Thomas Flynn (argued), Lau-
rel D. White and Ellen V. Endrizzi (briefed), Office of the
United States Attorney, Sacramento, California, for petitioner
United States.
Bruce Locke, Moss & Locke, Sacramento, California, for
defendant-real party in interest Allen Harrod.
Daniel Broderick, Acting Federal Defender (argued), Caro
Marks (briefed), Office of the Federal Public Defender, Sacra-
mento, California, for defendant-real party in interest Michael
Labrecque.
Jan Daniel Karowsky, Sacramento, California, for defendant-
real party in interest Juliette Labrecque.
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OPINION
PER CURIAM:
The United States of America petitions this court for a writ
of mandamus to require the district court to hold a jury trial
in a criminal case in which the defendants are charged with
acts involving interstate travel and the sexual abuse of young
children, in violation of 18 U.S.C. §§ 2423(a) and (b)2 and
2251A(a) and (b).3 The district court granted the defendants’
2This statute, “Transportation of minors,” provides, in relevant part:
(a) Transportation with intent to engage in criminal sexual
activity. — A person who knowingly transports an individual
who has not attained the age of 18 years in interstate or foreign
commerce, or in any commonwealth, territory or possession of
the United States, with intent that the individual engage in prosti-
tution, or in any sexual activity for which any person can be
charged with a criminal offense, shall be fined under this title and
imprisoned not less than 5 years and not more than 30 years.
(b) Travel with intent to engage in illicit sexual conduct. — A
person who travels in interstate commerce or travels into the
United States, or a United States citizen or an alien admitted for
permanent residence in the United States who travels in foreign
commerce, for the purpose of engaging in any illicit sexual con-
duct with another person shall be fined under this title or impris-
oned not more than 30 years, or both.
18 U.S.C. §§ 2423(a), (b) (West 2000 & Supp. 2006).
3This statute, “Selling or buying of children,” provides, in relevant part:
(a) Any parent, legal guardian, or other person having custody
or control of a minor who sells or otherwise transfers custody or
control of such minor, or offers to sell or otherwise transfer cus-
tody of such minor either —
(1) with knowledge that, as a consequence of the sale or
transfer, the minor will be portrayed in a visual depiction
engaging in, or assisting another person to engage in, sexu-
ally explicit conduct . . .
shall be punished by imprisonment for not less than 30 years or for life
and by a fine under this title, if any of the circumstances described in sub-
section (c) of this section exist.
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motion for a bench trial despite the government’s refusal to
consent to the jury waiver pursuant to Fed. R. Crim. P. 23(a).
We conclude that the writ of mandamus must issue.
JURISDICTION
This court has jurisdiction pursuant to the All Writs Act, 28
U.S.C. § 1651. See United States v. Fei Ye, 436 F.3d 1117,
1121 (9th Cir. 2006).
BACKGROUND
On August 19, 2003, the government filed a complaint
charging four individuals with multiple counts arising out of
the transport in interstate commerce of young children for the
purpose of engaging in unlawful sexual acts. The victims
were the children of the defendants: Allen Harrod and Irene
Hunt of Sacramento, California, and Michael and Juliette
Labrecque of Fort Worth, Texas.
(b) Whoever purchases or otherwise obtains custody or control
of a minor, or offers to purchase or otherwise obtain custody or
control of a minor either —
(1) with knowledge that, as a consequence of the purchase
or obtaining of custody, the minor will be portrayed in a
visual depiction engaging in, or assisting another person to
engage in, sexually explicit conduct . . .
shall be punished by imprisonment for not less than 30 years or for life
and by a fine under this title, if any of the circumstances described in sub-
section (c) of this section exist.
(c) The circumstances referred to in subsection (a) and (b) are
that —
(1) in the course of the conduct described in such subsec-
tions the minor or the actor traveled in or was transported in
interstate or foreign commerce . . .
18 U.S.C. §§ 2251A(a), (b), (c) (West 2000 & Supp. 2006).
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The charges allege approximately ten years of ritualistic
sexual abuse that included oral copulation, vaginal and anal
intercourse, and other acts committed upon the children, and
acts that the children were forced to commit. The five chil-
dren involved — three daughters of the Labrecques and one
son and one daughter of Harrod and Hunt — were as young
as seven at the time of the abuse. Counsel for the defendants
advised that they do not intend to contest that the sexual acts
occurred or that the children traveled between two states.
Rather, the defense will focus on lack of intent.
The matter was set for trial on April 25, 2006. On April 14,
2006, Harrod filed a “Motion to Waive Jury and to be Tried
by Judge,” which the government opposed. The gist of this
motion was that the defendants’ actions were so horrific that,
in the face of evidence regarding the molestations, no jury
could fairly consider defendants’ argument that the govern-
ment could not prove knowledge and intent at the time the
children were transported in interstate commerce.
On April 19, 2006, the court held a hearing on defendants’
motion for a non-jury trial and granted the motion over the
government’s objections. The court stated:
My objective is to see that I can give both sides as
fair a trial as possible. The defendant’s [sic] attor-
neys have represented to the court that the only
defense to certain counts of the indictment that they
believe has any real chance of success is the defense,
based on lack of knowledge or intent as to the pur-
pose of transporting the children in interstate com-
merce or as to the purpose of the transfer of custody
of the children.
For the reasons that have been stated in the moving
papers, that is going to be very difficult for the court
to control the evidence in such a way that the jury is
going to be able to focus upon that defense, to under-
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stand it, and to reach a fair verdict based upon its
finding, and to whether the Government either has or
has not proved those elements of the crimes.
Now, if the defendants didn’t want to waive a jury,
I would do my best to make sure that they were
allowed to present this defense in such a way that
they can get as fair of a trial as possible under the
circumstances. I don’t know whether I could.
There are so many motions in limine here that
depend upon weighing all the evidence, and I mean
there is — most of the evidence in the case, that can
be called 404(B) [sic] evidence, evidence of other
crimes, evidence outside the time frame of the
alleged acts involved, evidence for which the preju-
dicial effect outweighs the probative value under
Rule 403, that I don’t have the confidence that I can
make the right decision on every one of those objec-
tions.
* * *
I know I can give both sides a fair trial, if this is a
court trial. I do not know that I can rule correctly on
every one of the evidentiary objections that might be
deemed to deny defendants a fair trial if we have a
jury, and that, Counsel, is the bottom line. . . . So I
am going to grant this motion for the reasons stated.
I feel that in the language of Singer here, passion,
prejudice, public feeling or some other factor may
render impossible or unlikely an impartial jury trial,
and that the likelihood that the defendants would not
receive a fair trial to a jury outweighs any interest
that the Government has under Rule 23 to a trial by
jury.
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I recognize what the court said in Singer, that the
Government doesn’t have to have a reason for asking
or declining to join in the waiver, but just so that my
finding is clear, I have to conclude that this idea that
the victims feel more comfortable talking about their
molestation in the presence of jurors just seems pre-
textual. This [is] contrary to your previous position
about how all the jurors should be questioned indi-
vidually because they don’t want to talk about being
molested in the presence of jurors, so that is it.
The district court then stayed the case so that the government
could file a petition for a writ of mandamus.
The government filed its petition on May 12, 2006. This
court invited the district court judge to file a response to the
petition,4 which was filed on May 17, 2006. In his written
response, the district judge stated:
My decision to grant defendants’ motion was not
based on the difficulties in ruling on the admissibil-
ity of evidence or crafting proper instructions to the
jury. It was based on defendants’ compelling argu-
ments that the government’s insistence on trial by
jury would likely result in the denial of a fair trial to
the defendants. The Ninth Circuit has implicitly rec-
ognized that a showing of “passion, prejudice [or]
public feeling” may be sufficient to overcome the
government’s right to refuse consent to trial by the
court. Here, I was satisfied that the heinous and
repugnant conduct of the defendants, both charged
and uncharged, which will be vividly apparent to the
jury from the evidence to be presented, would render
it “impossible or unlikely” that ordinary jurors
would be able to dispassionately listen to and con-
sider defendants’ more technical arguments having
4See Fed. R. App. P. 21(b)(4).
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to do with interstate commerce in defense to some of
the charges.
(footnotes with citations omitted) (alteration in the original).
Defendants in interest also filed responses to the petition,
and the government filed a reply. Oral argument was held on
July 26, 2006.
DISCUSSION
I. Mandamus Relief Under 28 U.S.C. § 1651
We apply a five-factor test to determine whether the excep-
tional remedy of mandamus relief is warranted: “(1) whether
the petitioner has no other adequate means to attain the relief
he or she desires; (2) whether the petitioner will be damaged
or prejudiced in a way that is not correctable on appeal; (3)
whether the district court’s order is clearly erroneous as a
matter of law; (4) whether the district court’s order is an oft-
repeated error, or manifests a persistent disregard of the fed-
eral rules; and (5) whether the district court’s order raises new
and important problems, or issues of law of first impression.”
Fei Ye, 436 F.3d at 1121-22 (citation omitted).
A petitioner need not establish all five of these factors;
rather the court will weigh the factors together based on the
facts of the individual case. Id. at 1122.
II. The History of Rule 23(a) and the Singer Decision
[1] In Patton v. United States, 281 U.S. 276, 312 (1930),
the Supreme Court held that it was permissible for a criminal
defendant to consent to trial by a jury consisting of fewer than
twelve people. However, in so doing, the Court emphasized
the pivotal role of trial by jury in the criminal context, particu-
larly where the defendant is charged with a serious crime:
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In affirming the power of the defendant in any crimi-
nal case to waive a trial by a constitutional jury and
submit to trial by jury of less than twelve persons, or
by the court, we do not mean to hold that the waiver
must be put into effect at all events. . . . Trial by jury
is the normal and, with occasional exceptions, the
preferable mode of disposing of issues of fact in
criminal cases above the grade of petty offenses. In
such cases the value and appropriateness of jury trial
have been established by long experience, and are
not now to be denied. Not only must the right of the
accused to a trial by a constitutional jury be jealously
preserved, but the maintenance of the jury as a fact-
finding body in criminal cases is of such importance
and has such a place in our traditions, that, before
any waiver can become effective, the consent of gov-
ernment counsel and the sanction of the court must
be had, in addition to the express and intelligent con-
sent of the defendant. And the duty of the trial court
in that regard is not to be discharged as a mere mat-
ter of rote, but with sound and advised discretion,
with an eye to avoid unreasonable or undue depar-
tures from that mode of trial or from any of the
essential elements thereof, and with a caution
increasing in degree as the offenses dealt with
increase in gravity.
Id. at 312-313 (emphasis added).
In 1944, Rule 23 of the Federal Rules of Criminal Proce-
dure was adopted to codify Patton.5
5In its current form, Rule 23(a) states:
(a) Jury Trial. If the defendant is entitled to a jury trial, the trial
must be by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves.
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Twenty years later, the constitutionality of Rule 23 was
challenged in Singer v. United States, 380 U.S. 24 (1965).
The defendant in Singer was charged with multiple counts of
mail fraud and, on the opening day of trial, offered in writing
to waive trial by jury in order to shorten the length of his trial.
The trial court was willing to approve the waiver, but the gov-
ernment refused to consent. Id. at 25. The defendant was thus
tried by jury and convicted, and his conviction was affirmed
on appeal.
[2] Before the Supreme Court, the defendant argued that,
pursuant to the right to jury trial under Article III, section 2,
of the Constitution, and the Sixth Amendment, a criminal
defendant has a “correlative right to have his case decided by
a judge alone if he considers such a trial to be to his advan-
tage.” Id. at 25-26. After a scholarly review of the history of
the right to jury trial in criminal cases, the Court squarely
rejected this argument, holding that “there is no federally rec-
ognized right to a criminal trial before a judge sitting alone.”
Id. at 34.
[3] The Court then considered the argument that requiring
the defendant’s waiver to be conditioned upon the consent of
the government and the trial judge violated the defendant’s
right to a fair trial or due process. Id. at 35. The Court held
that it did not:
We find no constitutional impediment to condition-
ing a waiver of this right on the consent of the prose-
cuting attorney and the trial judge when, if either
refuses to consent, the result is simply that the defen-
dant is subject to an impartial trial by jury — the
very thing that the Constitution guarantees him. The
Constitution recognizes an adversary system as the
proper method of determining guilt, and the Govern-
ment, as a litigant, has a legitimate interest in seeing
that cases in which it believes a conviction is war-
ranted are tried before the tribunal which the Consti-
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tution regards as the most likely to produce a fair
result.
Id. at 36.
Further, the Court stated that Rule 23(a) does not require
that the government state its reason for refusing to consent to
a defendant’s jury waiver, since the law will presume that
such refusal is not for an “ignoble purpose.” Id. at 37. In con-
clusion, the Court remarked:
We need not determine in this case whether there
might be some circumstances where a defendant’s
reasons for wanting to be tried by a judge alone are
so compelling that the Government’s insistence on
trial by jury would result in the denial to a defendant
of an impartial trial. Petitioner argues that there
might arise situations where “passion, prejudice . . .
public feeling” or some other factor may render
impossible or unlikely an impartial trial by jury.
However, since petitioner gave no reason for want-
ing to forgo jury trial other than to save time, this is
not such a case, and petitioner does not claim that it
is. Id. at 37-38 (emphasis added).
III. Case Law After Singer
[4] The Supreme Court has never determined whether the
circumstances alluded to in Singer actually existed — i.e.,
where requiring a defendant to undergo trial by jury would
infringe his constitutional right to a fair trial — nor has it ever
decided what circumstances would create such an unusual sit-
uation. To the contrary, in at least one post-Singer opinion,
the Court has characterized the requirement of government
consent as absolute. See Gannett Co., Inc. v. DePasquale, 443
U.S. 368, 383 (1979).
Although lower courts have since assumed that Singer
allows for an exception to the requirement of governmental
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consent to a jury waiver, no United States Court of Appeals
appears to have approved a defendant’s waiver of a jury over
the government’s objection. Indeed, the circuits that have con-
sidered this issue have uniformly upheld the trial courts’
refusals to grant such waivers without governmental consent.
See United States v. Jackson, 278 F.3d 769, 771 (8th Cir.
2002); DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir. 1998);
United States v. Van Metre, 150 F.3d 339, 353 (4th Cir.
1998); United States v. Gabriel, 125 F.3d 89, 94-95 (2d Cir.
1997), overruled on other grounds by Arthur Andersen LLP
v. United States, 544 U.S. 696, 705-06 (2005); United States
v. Clark, 943 F.2d 775, 784 (7th Cir. 1991); United States v.
Sun Myung Moon, 718 F.2d 1210, 1217-1219 (2d Cir. 1983).
See also United States v. Clapps, 732 F.2d 1148 (3d Cir.
1984), overruled on other grounds by McNally v. United
States, 483 U.S. 350, 360-61 (1987).
Moreover, in United States v. Reyes, 8 F.3d 1379, 1389
(9th Cir. 1993), a defendant charged with various drug
offenses argued that the trial court improperly allowed the
government to refuse to consent to defendant’s jury waiver
without requiring it to explain its refusal on non-
discriminatory grounds. This court rejected that argument,
and while recognizing the possible exception created by the
concluding remarks in Singer, the court stated that any “pas-
sion, prejudice . . . and public feeling” defendant feared on
account of alleged racial discrimination was “specifically
addressed and guarded against by the trial judge during the
voir dire.” Id. at 1390 (citation omitted).6
6Two district court cases cited by defendants in which a jury waiver was
granted over the government’s objection involved, in contrast to this mat-
ter, very complex facts and legal and accounting issues involving charges
of medicare and tax fraud, and the courts there thus concluded that the
matters for resolution were so complex as to be beyond the comprehension
of average jurors. See United States v. Braunstein, 474 F. Supp. 1, 13-14
(D.N.J. 1979); United States v. Panteleakis, 422 F. Supp. 247, 250 (D.R.I.
1976).
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IV. The District Court’s Decision
Reviewing this authority and the district court record
below, we are left with “the definite and firm conviction that
a mistake has been committed.” Fei Ye, 436 F.3d at 1123
(citations omitted).
As noted above, the Supreme Court in Singer observed:
“We need not determine in this case whether there might be
some circumstances where a defendant’s reasons for wanting
to be tried by a judge alone are so compelling that the Gov-
ernment’s insistence on trial by jury would result in the denial
to a defendant of an impartial trial.” Singer, 380 U.S. at 37.
[5] Neither need we make such a determination. For, while
trying this case is not without its challenges, we are confident
that the able and experienced trial judge is fully capable of
ensuring these defendants an impartial trial. In so doing, he is
afforded an abundance of tools by the Federal Rules of Evi-
dence and Criminal Procedure and by the inherent power of
the court.
For example:
1. The trial court may engage in extensive voir dire,
including the use of jury questionnaires and/or individual voir
dire. See Reyes, 8 F.3d at 1390.7
Other district court opinions, including more recent ones, have refused
to grant a defendant’s jury waiver without government consent. See Miller
v. Snyder, No. CIV-A. 96-187-GMS, 2001 WL 173796, at *5 (D. Del.
Feb. 14, 2001); United States v. Volpe, 42 F. Supp.2d 204, 228 (E.D.N.Y.
1999); United States v. Daniels, 282 F. Supp. 360, 361 (N.D. Ill. 1968).
7The Second Circuit, noting the importance of voir dire to this process,
has held that the trial court cannot even reasonably ascertain whether a fair
jury can be seated in a given case, and thus cannot make an informed rul-
ing on a motion for jury waiver, until voir dire has been conducted. See
Sun Myung Moon, 718 F.2d at 1218.
It appears from the record that the district court here did not endeavor
to impanel a jury. Thus, we have no concrete showing that a fair jury can-
not be had, only supposition that it is so.
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2. The trial court may in its discretion limit the amount
and nature of “bad acts” evidence. Not all of the proffered
evidence need be admitted. The lurid nature of the evidence
may be tempered by requiring summarization, the omission of
inflammatory details, and the use of other evidentiary filters.
Fed. R. Evid. 403, 404. See United States v. Merino-
Balderrama, 146 F.3d 758, 763 (9th Cir. 1998).
3. Cumulative evidence may be limited. Fed. R. Evid.
403.
4. The number of witnesses may be limited. See United
States v. Fernandez, 497 F.2d 730, 735-36 (9th Cir. 1974).
5. The court may in its voir dire, and in oral and written
instructions before, during, and after trial, emphasize that
proof of each and every element of the charged offenses
beyond a reasonable doubt is required, including the intent
elements, and that it is not a “technical defense” for a defen-
dant to assert that the prosecution has not met this burden.
The court may stress as often as required that it would be a
violation of the panel’s oaths as jurors to convict without
proof beyond a reasonable doubt of the intent and interstate
commerce elements of the charges.
[6] In sum, we conclude that the district court, as a matter
of law, was clearly erroneous in ordering a non-jury trial
without the consent of the prosecution.
V. Other Requirements For The Issuance Of A Writ Of
Mandamus Are Satisfied.
The third of the five mandamus factors is satisfied because,
as discussed, the district court’s ruling was clearly erroneous
as a matter of law. Fei Ye, 436 F.3d at 1121-22 (citation omit-
ted).
The first and second factors are also established because
the government has no other mechanism by which it can force
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the district court to try this case by jury. Moreover, any error
following a bench trial would not be correctable on appeal
because, if the defendants are acquitted, the government will
be barred by the double jeopardy clause from raising the issue
on appeal. Id. at 1123 (citations omitted).
Finally, with respect to the fourth factor, this issue admit-
tedly is not one that arises often, but it is one on which we
have not directly ruled and thus raises an important question
of law.
CONCLUSION
[7] Accordingly, the government’s petition for a writ of
mandamus is granted and the district court is directed to
rescind its order of April 19, 2006, granting defendants’
motion to waive jury trial.
Petition for a writ of mandamus GRANTED.
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