and Submitted October 17, 2017 San Francisco, California
from the United States District Court Nos.
4:12-cr-00862-YGR-3, 4:12-cr-00862-YGR-2 for the Northern
District of California Yvonne Gonzalez Rogers, District
A. Sugarman (argued), Sugarman & Cannon, San Francisco,
California, for Defendant-Appellant Kevin Laney.
J. Beles (argued) and Paul McCarthy, Law Offices of Beles
& Beles, Oakland, California, for Defendant-Appellant
Douglas Wilson (argued), Chief, Appellate Division; Brian J.
Stretch, United States Attorney; United States Attorney's
Office, San Francisco, California; for Plaintiff-Appellee.
Before: Michael Daly Hawkins, William A. Fletcher, and
Richard C. Tallman, Circuit Judges.
panel reversed the defendants' convictions, and remanded,
in a case in which defense counsel stipulated that their
clients waived their right to a jury trial.
panel concluded that the convictions are supported by
sufficient evidence, but that the jury-trial waivers were
panel held that the proper practice under Fed. R. Crim. P.
23(a) is for the defendant to personally execute the written
waiver; a written stipulation signed by defense counsel
alone-like the stipulations at issue in this case- will not
raise a presumption of validity. The panel explained that the
absence of a defendant's signature will not constitute
reversible error if the record otherwise shows that the
defendant's waiver was voluntary, knowing, and
intelligent. The panel could not determine from the record
whether the defendant's waivers were voluntary, knowing,
and intelligent. The panel wrote that the stipulation here
was tantamount to an oral waiver by counsel outside the
defendant's presence, which this court's precedent
HAWKINS, CIRCUIT JUDGE.
these consolidated appeals, we must determine whether a
presumption of validity attaches to a
stipulationby defense counsel that their clients waive
their right to a jury trial on their criminal charges.
Defendants Kevin Laney and Brian Federico contend that: (1)
the stipulations submitted by their respective trial counsel
did not effectively waive their Sixth Amendment rights and
(2) their convictions on several counts of conspiracy and
mail fraud are not supported by sufficient evidence. We
conclude that counsel's stipulations in this case did not
raise a presumption of validity, and the record is
insufficient to show that the jury trial waivers were
voluntary, knowing, and intelligent. Therefore, although we
conclude that the convictions are supported by sufficient
evidence, we reverse and remand based on the ineffective jury
scheme giving rise to the convictions below arose out of
Laney and Federico's work in the construction and
concrete industries. Laney worked as a project manager for
Matrix Services, Inc. ("Matrix"), an industrial
construction company specializing in construction and repair
work in the energy industry. Federico worked as a manager of
the concrete company Imperial Shotcrete
("Imperial"), which served as a subcontractor on
several Matrix projects.
state presented evidence that, in approximately 2005,
Federico approached Imperial's owner, Miguel Ibarria,
with an arrangement that would allow Ibarria, Federico,
Laney, and other Matrix project managers to make additional
money from Matrix projects. Under the arrangement, Federico
would provide Ibarria with the specifications for a job, and
Ibarria would provide a quote consisting of the project
expenses and Imperial's standard markup. Federico would
then talk to the assigned Matrix project manager, who would
inform Federico when there was "more room" in the
budget for concrete work. Federico would then come back to
Ibarria with another, higher bid suggestion that Imperial
would in turn submit to Matrix as its bid on the project.
That new inflated bid generally corresponded to Matrix's
internal budget ceiling for concrete work. The Matrix project
manager would approve the bid and award the job to Imperial.
Imperial would complete the concrete work and bill Matrix
"for whatever number they . . . told [Ibarria] to make
the proposal for." Federico would provide Ibarria with
"some extra wording" to include on the invoices to
Matrix. The Matrix project manager involved would approve the
invoice, and Matrix would pay Imperial.
Matrix paid Imperial, Imperial would receive an invoice from
a fictitious company, in fact fabricated by the involved
Matrix project managers, purporting to charge for work
associated with the project. These invoices were entirely
false and described materials not used or services not
performed. Federico would supply the project manager with the
amount to include on the false invoice, and the project
manager would submit that invoice to Imperial. Once the
project manager received a check from Imperial, he would
deposit the money in his own account and write a check back
to Federico for his agreed-upon share of the money.
scheme continued for several years, involved several
projects, and ultimately resulted in Laney and Federico
receiving hundreds of thousands of dollars through these
fictitious entities. In 2010, Matrix, suspecting a potential
financial fraud within the company, launched an internal
investigation and vendor audit of Imperial. The amount of the
fraud ultimately uncovered was approximately $1.6 million.
investigation by the Federal Bureau of Investigation
("FBI") soon followed Matrix's internal
investigation. The FBI investigation led to the indictment of
Laney, Federico, Ibarria, and two other Matrix project
managers, Brandon Hourmouzus and Charles Burnette, on
multiple counts of mail fraud and conspiracy to commit mail