United States v. Mala Shorty , 741 F.3d 961 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10530
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-08100-GMS-1
MALA TRAVON SHORTY,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge and
G. Murray Snow, District Judge, Presiding*
Argued and Submitted
November 4, 2013—San Francisco, California
Filed December 20, 2013
Before: Stephen Reinhardt, John T. Noonan,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Reinhardt
*
Judge Murguia presided over the jury-trial waiver hearing. Judge Snow
presided over the bench trial.
2 UNITED STATES V. SHORTY
SUMMARY**
Criminal Law
The panel reversed bench-trial convictions for aiding and
abetting the making of a false statement in connection with
the acquisition of a firearm, aiding and abetting the making
of a false statement concerning information that must be kept
by a firearms dealer, and being a felon in possession of a
firearm, and remanded.
The panel held that the district court failed to take the
necessary precautions to ensure that the defendant’s jury-trial
waiver was made knowingly and intelligently, where the
court did not obtain a written waiver, the defendant informed
the district court that he has a low I.Q., his attorney informed
the court that the defendant is learning disabled, and the
district court did not conduct an adequate colloquy.
Because the panel rejected the defendant’s contention that
there was insufficient evidence to support the aiding-and-
abetting convictions, the panel concluded that the Double
Jeopardy Clause is not implicated and that the government
may retry the defendant on all counts.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SHORTY 3
COUNSEL
Lee Tucker, Assistant Federal Public Defender, Tucson,
Arizona, for Defendant-Appellant.
Dominic Lanza, Assistant United States Attorney, Phoenix,
Arizona, for Plaintiff-Appellee.
OPINION
REINHARDT, Circuit Judge:
Mala Travon Shorty appeals his convictions for aiding
and abetting the making of a false statement in connection
with the acquisition of a firearm, 18 U.S.C. §§ 922(a)(6) &
924(a)(2), aiding and abetting the making of a false statement
concerning information that must be kept by a firearms
dealer, 18 U.S.C. § 924(a)(1)(A), and being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1). He raises two
issues on appeal. First, he contends that the district court
failed to conduct an adequate colloquy before accepting his
jury-trial waiver. Second, he contends that there was
insufficient evidence to support his convictions on the four
aiding and abetting counts. We agree with his first claim, but
not his second. We reverse and remand on all counts.
I.
Shorty was arrested in 2010 after federal agents
discovered twelve firearms, ammunition, and a gun safe at his
home in Flagstaff, Arizona. He was charged with seven
felonies and pleaded not guilty to all seven, but waived his
right to a jury trial, electing to be tried by the court instead.
4 UNITED STATES V. SHORTY
Before accepting the waiver, the district judge questioned
Shorty directly:
Court: You’re Mala Travon Shorty?
Defendant: Mala, your Honor.
Court: Mala, thank you. Sorry. Your lawyer,
you’ve just heard the discussion; is that
correct?
Defendant: Yes, ma’am.
Court: And I don’t know very much about
you, Mr. Shorty, but what’s your level of
education?
Defendant: Graduated high school. But I do
have a low I.Q.
Counsel: Judge, he is learning disabled.
Court: Okay. Have you been able to
understand all of the proceedings?
Defendant: Yes, I understand everything
that’s going on.
Court: You heard your lawyer say that you
are—tell me that you are wanting and willing
to waive your right to a jury trial. Is that
correct?
Defendant: Yes.
UNITED STATES V. SHORTY 5
Court: Alright. You understand that this is
a—that you are charged with a number of
felony offenses. It’s a false statement in
connection with acquisition of a firearm in
Counts 1 through 4; false statement
concerning information that must be kept by
firearms dealer, Counts 2 and 5; and then
felon in possession of a firearm and/or
ammunition as charged in counts 3, 6, and 7.
And then there’s a forfeiture allegation. All of
these entitle you to a jury trial. Do you
understand that?
Defendant: Yes.
Court: Alright. 12 people would sit, listen to
the evidence, and then apply the facts to the
law, all of the testimony and all of the
evidence that’s submitted, and then make a
determination as to whether or not you’re
guilty of these offenses. Do you understand
that?
Defendant: Yes, ma’am.
Court: Alright. And so you’re telling me that
you would rather not have the jury trial,
you’re willing to waive your right to that trial;
is that correct?
Defendant: Yes.
Court: And you are—according to your
lawyer, you would like to have a trial to the
6 UNITED STATES V. SHORTY
Court, which is to me. Do you understand
that?
Defendant: Yes.
Court: And that’s how you would like to
proceed?
Defendant: Yes.
Court: Alright.
The bench trial took place four months later. The following
facts were established at trial:
In October 2008, Shorty contacted his ex-girlfriend,
Millie Smallcanyon, and asked her to purchase a gun for him.
He could not buy the gun himself, he explained, because of
his “past with a record.”1 Smallcanyon agreed to help, and
accompanied Shorty to Ruff’s Sporting Goods, a gun store in
Flagstaff, Arizona. She entered the store alone, holding a slip
of paper with the name of the gun Shorty had requested and
the money that he had given her to pay for it. When she
purchased the gun—a Smith & Wesson .38 revolver costing
$748.26—she filled out a Form 4473, a form that federal law
requires in order to purchase a firearm from a federally
licensed dealer and which a dealer must keep in his records.
The form required Smallcanyon to state whether she was the
“actual buyer” of the gun and notified her: “You are not the
actual buyer if you are acquiring the firearms on behalf of
1
Shorty has three prior state court convictions, all of which resulted
from guilty pleas: drug possession (Arizona, 1990), felon in possession of
a firearm (California, 1994), and assault (Arizona, 2000).
UNITED STATES V. SHORTY 7
another person. If you are not the actual buyer, the dealer
cannot transfer the firearms to you.” Smallcanyon attested
that she was the “actual buyer,” knowing that this was false
and that Shorty was the actual buyer. She paid for the gun,
left the store, and gave the gun to Shorty.
In July 2009, Shorty again asked Smallcanyon to
purchase firearms for him. This time, he accompanied her to
“Shooter’s World” in Phoenix, Arizona. Smallcanyon
testified that at Shooter’s World,
[Shorty] was letting me know what, you
know, what he wanted and, you know,
asking—having me ask the questions. And he
was doing most of the shopping . . . and
through me, he let [me] know what it was that
he wanted to purchase, along with, like, the
little, you know, like the stuff that come[s]
along with guns.
Smallcanyon purchased nine firearms and various accessories
for $7,243.99, again filling out a Form 4473 and claiming to
be the “actual buyer.” She paid with money that Shorty had
given her, left the store, and handed the guns and accessories
to Shorty. Smallcanyon’s large purchase at Shooter’s World
was referred to the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) as a “suspicious transaction.” An ATF
agent contacted Smallcanyon, who admitted that she had
purchased the guns for Shorty. ATF agents subsequently
executed a search warrant for Shorty’s house and discovered
twelve firearms, including those that Smallcanyon had
purchased at Ruff’s Sporting Goods and Shooter’s World.
8 UNITED STATES V. SHORTY
At the close of the evidence, Shorty moved pursuant to
Federal Rule of Criminal Procedure 29 for a judgment of
acquittal on the charges that he aided and abetted
Smallcanyon’s false statements at both gun stores that she
was the “actual buyer” of the guns. Shorty argued that
because there was no evidence that he knew that Smallcanyon
would have to make false statements in order to buy the guns
or instructed her to do so, there was insufficient evidence that
he aided and abetted her making of these statements. The
district judge denied the motion, deeming it sufficient that
Shorty asked Smallcanyon to “represent herself as the
purchaser in his stead.” The district judge found Shorty guilty
on all counts and sentenced him to 33 months’ imprisonment
and three years supervised release.
II.
On appeal, Shorty first asserts that his jury-trial waiver
was invalid because the district court’s colloquy was not
adequate to ensure that his waiver was knowing and
intelligent.
We review the adequacy of a jury-trial waiver de novo.
United States v. Christensen, 18 F.3d 822, 824 (9th Cir. 1994)
(citing United States v. Ferreira-Alameda, 815 F.2d 1251,
1252 (9th Cir. 1987)). Federal Rule of Criminal Procedure 23
requires that three conditions be met for a defendant to waive
his right to a jury trial. The rule states:
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.
UNITED STATES V. SHORTY 9
Fed. R. Crim. Proc. 23(a). There is a fourth requirement: the
waiver must be knowing and intelligent. United States v.
Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997).
Although Rule 23 states that the waiver must be in writing,
we have held that under certain circumstances an oral waiver
may be sufficient. See United States v. Saadya, 750 F.2d
1419, 1420 (9th Cir. 1985) (citing United States v. Reyes,
603 F.2d 69, 71 (9th Cir. 1979)). The two forms of waiver are
not equal, however. A writing confers on a waiver the
presumption that it was made knowingly and intelligently.
See United States v. Cochran, 770 F.2d 850, 851 (9th Cir.
1985) (citing United States v. Goodwin, 446 F.2d 894, 895
(9th Cir. 1971) (per curiam) and United States v. Reyes-Meza
de Polanco, 422 F.2d 1304, 1305 (9th Cir.) (per curiam), cert
denied, 397 U.S. 1081 (1970)). There is no writing in this
case, and therefore, in determining whether Shorty’s oral
waiver was knowing and intelligent, we proceed without any
presumption that it was.
Courts have a “serious and weighty responsibility” to
determine whether a waiver is knowing and intelligent.
Johnson v. Zerbst, 304 U.S. 458, 465 (1938); Christensen,
18 F.3d at 826 (quoting Johnson, 304 U.S. at 465). In United
States v. Cochran, we “implore[d]” district courts to ensure
that a jury trial waiver is knowing and intelligent by engaging
in a substantial colloquy with defendants as well as informing
them of four crucial facts: (1) twelve members of the
community compose a jury; (2) the defendant may take part
in jury selection; (3) jury verdicts must be unanimous; and (4)
the court alone decides guilt or innocence if the defendant
waives a jury trial. 770 F.2d at 853. In Cochran, although the
district court had failed to instruct on these four facts, the
error did not require reversal because there was a written
waiver and “[t]here [were] no additional facts in the record
10 UNITED STATES V. SHORTY
bearing upon the question whether the waiver was voluntary,
knowing and intelligent.” Id. at 851.
In United States v. Christensen, we held that a district
court’s failure to have an adequate colloquy with a defendant
before accepting his jury-trial waiver required reversal where,
although there was a written waiver, there was an “additional
fact[]”—namely, evidence that the defendant might be
mentally or emotionally unstable. 18 F.3d at 825–26. We
stated:
In cases where the defendant’s mental or
emotional state is a substantial issue,
“imploring” district courts to conduct fuller
colloquies is not enough. We must require
them to do so. Christensen rightly points out
that Cochran does everything but require such
colloquies. . . . We now hold that district
courts may not discharge this responsibility in
cases where they have reason to suspect a
defendant may suffer from mental or
emotional instability without an in-depth
colloquy which reasonably assures the court
that under the particular facts of the case, the
signed waiver was voluntarily, knowingly,
and intelligently made.
Id. (emphasis added). An in-depth colloquy, we held, includes
instructing the defendant of the four facts listed in Cochran.
Id. at 825. Because the district court’s colloquy was not in-
depth and did not inform Christensen of those four facts, we
held that the waiver was invalid. Id. at 825–26. Three years
later, in United States v. Duarte-Higareda, we identified
another “additional fact” that necessitated an in-depth
UNITED STATES V. SHORTY 11
colloquy, again even where there was a written waiver: a non-
English speaking defendant. “Duarte’s language barrier,” we
said, “like Christensen’s mental illness, is a ‘salient fact’ that
was known to the district court and put the court on notice
that Duarte’s waiver ‘might be less than knowing and
intelligent.’” 113 F.3d at 1003 (quoting Christensen, 18 F.3d
at 825). Because the district court failed to have a colloquy
with Duarte—let alone an in-depth colloquy—Duarte’s
wavier was invalid, and his conviction was reversed. Id.In this case too, the district court failed to take the
necessary precautions to ensure that Shorty’s jury-trial waiver
was made knowingly and intelligently. First, unlike the courts
in Christensen and Duarte-Higareda, and contrary to the
provisions of Rule 23, it did not obtain a written waiver. As
a result, Shorty’s waiver is not presumed valid, and his oral
waiver—his only waiver—is subject to greater scrutiny.
Second, the court was aware of an additional, “salient fact”
that should have put it on notice that Shorty’s oral waiver
“might be less than knowing and intelligent”: Shorty
informed the court that he has a “low I.Q.,” and his attorney
told the court that Shorty is “learning disabled.” Shorty’s low
I.Q. and learning disability created a significant possibility
that he did not understand the import and consequences of
waiving a jury trial—and it is this understanding at which the
“knowing and voluntary” requirement is aimed. See
Christensen, 18 F.3d at 826.2 Third, under the circumstances,
2
In fact, the evidence in this case of a special disadvantage or disability
was even stronger than that in Christensen. At the time of the jury-trial
waiver in Christensen, the defendant had merely requested a continuance
for the possibility of raising an insanity defense; there was no evidence
that the defendant was in fact intellectually disabled. Here, both Shorty
and his attorney attested to Shorty’s disability immediately before the
colloquy.
12 UNITED STATES V. SHORTY
the court’s colloquy prior to accepting Shorty’s waiver was
inadequate to ensure that Shorty understood the right he was
waiving. The court instructed Shorty on only two of the four
facts required: it told him that a jury consists of 12 jurors and
that if he waived his right, the court would try his case.
Shorty was not advised, however, that he could help choose
the jury or that the jury verdict must be unanimous.3
Moreover, the court did not question Shorty in a way that
would ensure that he understood the two pieces of
information he was given. We have said that “the district
court should question the defendant to ascertain whether the
defendant understands the benefits and burdens of a jury trial
and freely chooses to waive a jury.” Duarte-Higareda,
113 F.3d at 1002; see also Cochran, 770 F.2d at 853 (“By
asking appropriate questions the district court will also be
better able to perform its task of determining whether a
proposed waiver is in fact being offered voluntarily,
Moreover, additional evidence of Shorty’s disability was introduced
after the jury waiver. Smallcanyon testified at trial that Shorty is illiterate
(a fact later confirmed by Shorty’s lawyer), and Shorty’s presentence
report stated:
[The defendant] reported that he has a significant
learning disability and was enrolled in special education
programs throughout his school years. The defendant
has limited reading and writing abilities.
The defendant reported he has been unemployed since
he began receiving Social Security benefits in 1990 as
a result of his learning disability.
3
In this way, the colloquy in this case was less in-depth than the one we
found inadequate in Christensen, as the latter included the unanimity
instruction. See Christensen, 18 F.3d at 823 (“You understand that you
waive the right to . . . a trial in which 12 jurors have to find you guilty.”).
UNITED STATES V. SHORTY 13
knowingly and intelligently.”). Under these circumstances—
the absence of a written waiver, the evidence that Shorty has
a low I.Q. and learning disability, and the district court’s
failure to conduct an adequate colloquy—the district court did
not fulfill its “serious and weighty responsibility” of ensuring
that Shorty’s waiver was knowing and intelligent.
The government attempts to liken this case to those in
other circuits in which there was no written waiver and little
discussion between the defendant and the court, and yet the
waiver was deemed valid. These out-of-circuit cases,
however, all involve highly educated defendants for whom
there was, of course, no evidence in the record of a low I.Q.
or learning disability. See United States v. Carmenate,
544 F.3d 105 (2d Cir. 2008) (a white-collar case in which
there was “no indication in the record that the defendant was
incapable of clearly and independently expressing his
wishes”); United States v. Leja, 448 F.3d 86 (1st Cir. 2006)
(a white-collar case with an “intelligent and articulate”
college graduate defendant actively involved in his own
defense); United States v. Page, 661 F.2d 1080 (5th Cir.
1981) (a white-collar case with a “highly educated and
articulate” former biology professor defendant with a
doctorate in parasitology, “suffering neither language nor
perceptive difficulty”).4 Were Shorty as intellectually
sophisticated and highly educated as these defendants, his
colloquy might indeed have been sufficient.
4
The same is true of United States v. Bishop, another case that the
government relies on: the defendant in that case was a “sophisticated
business proprietor” convicted of tax evasion. 291 F.3d 1100, 1114 (9th
Cir. 2002).
14 UNITED STATES V. SHORTY
The government also argues that Shorty’s waiver was
knowing and intelligent because he had experience with the
criminal justice system: he pleaded guilty in state court three
times, in 1990, 1994, and 2000, and endured a three-day jury
trial in state court in 1994, which ended in a hung jury. We
reject this argument. First, we are aware of no case in which
we have held that prior experience with the criminal justice
system negates a court’s responsibility to conduct an adequate
colloquy before accepting a jury-trial waiver.5 Second, there
is no evidence that Shorty had been properly instructed, on
these prior occasions, of what his right to a jury trial entails.
Finally, even if Shorty was properly instructed on his right to
a jury trial, nothing suggests that he retained that information
ten, fifteen, or even twenty years later when he waived the
right again in 2010.
We also reject the government’s suggestion that defense
counsel’s “assurances” in Shorty’s presence that he would
proceed by bench trial indicate that Shorty’s waiver was
knowing and intelligent. There is little support for the
proposition that such assurances are relevant to the question
whether a defendant’s oral waiver is knowing and intelligent.
The government cites United States v. Cochran and United
States v. McCurdy, but those cases in no way relied on
assurances by counsel. See Cochran, 770 F.2d 850; McCurdy,
450 F.2d 282 (9th Cir. 1971). Further, while the government
is correct that the First Circuit, in United States v. Leja, listed
5
In post-argument filings, the government identified United States v.
Gerritsen, 571 F.3d 1001 (9th Cir. 2009), and United States v. Glover,
596 F.2d 857 (9th Cir. 1979). These cases are not on point, as the former
involves waiver of the right to counsel and the latter a Miranda waiver,
both situations in which we have adopted a more flexible approach to
waiver and in which the formal requirements of Christensen and Duarte-
Higareda do not apply.
UNITED STATES V. SHORTY 15
“representations by defense counsel concerning the waiver”
and the “defendant’s presence in the courtroom at times when
waiver was discussed” as factors relevant to determining
whether a defendant’s waiver is knowing and voluntary, it
also identified “the extent of the particular defendant’s ability
to understand courtroom discussions regarding jury waiver”
as a consideration. 448 F.3d at 93–94. The latter is
particularly relevant here, as Shorty’s low I.Q. and learning
disability undoubtedly made it more difficult for him than the
white-collar defendant in Leja to follow courtroom
discussions.
Finally, that Shorty may have made a “tactical choice” to
waive a jury tells us nothing about whether he understood
what he would be giving up by making such a choice. It was
the district court’s responsibility to fully inform Shorty of the
nature and import of the right he was waiving, no matter his
(or his counsel’s) reason for waiving it. In failing to do so,
the district court did not meet its “serious and weighty
responsibility” of ensuring that Shorty knew what that right
meant and understood the consequences of waiving it. See
Johnson, 304 U.S. at 465. An invalid jury waiver is structural
error and, accordingly, we reverse and remand. See United
States v. Alvarez-Moreno, 657 F.3d 896, 898 (9th Cir. 2011)
(citing United States v. Bailon-Santana, 429 F.3d 1258, 1261
(9th Cir. 2005)).
III.
Shorty next contends that there was insufficient evidence
to support his conviction for aiding and abetting
Smallcanyon’s false statements on the Form 4473 at Ruff’s
Sporting Goods and Shooter’s World that she was the “actual
buyer” of the guns. Although we reverse Shorty’s conviction
16 UNITED STATES V. SHORTY
on all counts for the reasons discussed above, we address the
aiding and abetting question because “a challenge to the
sufficiency of the evidence implicates a defendant’s rights
under the Double Jeopardy Clause.” United States v.
Boulware, 384 F.3d 794, 809–10 (9th Cir. 2004) (citing
United States v. Jimenez Recio, 371 F.3d 1093, 1104 (9th Cir.
2004)). Because we hold that there was sufficient evidence to
support Shorty’s aiding-and-abetting convictions, the Double
Jeopardy Clause is not implicated and the government may
retry Shorty on all counts.6
We review a sufficiency-of-the-evidence claim de novo.
United States v. Odom, 329 F.3d 1032, 1034 (9th Cir. 2003).
There is insufficient evidence to support a conviction if,
viewing the evidence in the light most favorable to the
prosecution, no “rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.
2010) (en banc). Shorty’s sufficiency-of-the-evidence claim
is narrow: he does not contest that he asked Smallcanyon to
buy guns for him, that he drove her to the two stores and
directed her what to buy, or that he gave her the money to buy
the guns. Nor does he contend that her statements on the
Form 4473s were not false, or that she did not make them;
rather, he argues that because there was no evidence that he
knew that Smallcanyon would have to lie on the forms in
order to complete the purchase or that he instructed her to do
so, he cannot be found guilty of aiding and abetting her false
statements.
6
Shorty does not challenge the sufficiency of the evidence for the three
remaining counts and therefore the government may, of course, retry
Shorty on those counts.
UNITED STATES V. SHORTY 17
Under the aiding and abetting statute, 18 U.S.C. § 2, a
person who “aids, abets, counsels, commands, induces or
procures” the commission of an offense is “punishable as a
principal.” In this circuit, the elements necessary for an aiding
and abetting conviction are:
(1) that the accused had the specific intent to
facilitate the commission of a crime by
another, (2) that the accused had the requisite
intent of the underlying substantive offense,
(3) that the accused assisted or participated in
the commission of the underlying substantive
offense, and (4) that someone committed the
underlying substantive offense.
United States v. Singh, 532 F.3d 1053, 1057–58 (9th Cir.
2008) (quoting United States v. Gaskins, 849 F.2d 454, 459
(9th Cir. 1988)). We have stated more generally that
“[c]onviction as an aider and abettor requires proof the
defendant willingly associated himself with the venture and
participated therein as something he wished to bring about.”
United States v. Lopez, 484 F.3d 1186, 1199 (9th Cir. 2007)
(en banc). There is ample evidence in the record from which
a reasonable juror could have found that Shorty met these
criteria: Smallcanyon testified that Shorty asked her to buy
the guns on his behalf, telling her that he could not purchase
them himself due to his “past with a record.” When she
agreed, he drove her to the gun stores, instructed her which
guns to buy, and gave her the money with which to buy them.
The lack of evidence that Shorty knew that Smallcanyon
would have to falsely claim to be the “actual buyer” of the
guns on a Form 4473 or that he instructed her to do so is not
fatal to the government’s case; it is enough that he
18 UNITED STATES V. SHORTY
encouraged her to represent herself as the “actual buyer” and
that, in order to do so, she was required to lie on the forms.
Our holding is consistent with the approach taken by the
two other circuits to address this question. In United States v.
Soto, 539 F.3d 191 (3d Cir. 2008), the Third Circuit faced a
fact pattern almost identical to the one here: Soto purchased
firearms using a “straw purchaser” who filled out a Form
4473 attesting that she, not Soto, was the “actual buyer” of
the guns. Soto was convicted of aiding and abetting the
making of the false statement and on appeal he argued that
the evidence was insufficient to support his conviction
because he was “unaware” that the Form 4473 required that
the purchaser state whether she was the actual buyer, and
therefore that she would have to lie. Id. at 194. The Third
Circuit rejected this argument, describing Soto’s extensive
involvement in the purchase:
[T]he evidence produced at trial revealed that
Soto escorted Brown to Delia’s gun shop on
several occasions. He was present in the store
with her at the time of these purchases and
actively involved himself in the purchase of
the firearms. . . . He knew that the guns were
not for her, and that they were going to be
resold to drug dealers. In this case, Soto was
more than merely a knowing spectator. He
was actively involved in the gun purchase
process and participated in the criminal
enterprise. He actively involved himself in the
straw purchase and knew that Brown was a
straw purchaser.
UNITED STATES V. SHORTY 19
Id. at 195. The court then likened these facts to those in
United States v. Abfalter, 340 F.3d 646 (8th Cir. 2003), where
the Eighth Circuit rejected the same argument raised by Soto
(and Shorty here):
The circumstances of Williams’ conviction in
Abfalter, and Soto’s conviction in this case,
are quite similar. In both cases, the alleged
aider and abetter was intimately involved in
the firearms purchases. Both Williams and
Soto were present at the time of the firearms
purchases, and the evidence indicated that
both Williams and Soto had a history with
their straw purchaser. . . .
Viewing this evidence in the light most
favorable to the government, we find that this
evidence was legally sufficient to support the
conviction because there existed a logical and
convincing [connection] between the facts
established and the conclusion inferred that
Soto aided and abetted [the purchaser] in
[making the false statement].
539 F.3d at 195–96 (emphasis added); see also Abfalter,
340 F.3d at 654–55. Like the defendants in Soto and Abfalter,
Shorty was “intimately involved” in the firearm purchases.
Shorty accompanied Smallcanyon to the gun stores, told her
which guns to buy, and gave her the money with which to buy
them. This evidence is sufficient to support Shorty’s
convictions for aiding and abetting the false statements
Smallcanyon made in order to complete the purchase—
statements consistent with the task Shorty gave her of
representing herself as the actual buyer.
20 UNITED STATES V. SHORTY
CONCLUSION
A district court has a serious and weighty responsibility
to safeguard a defendant’s constitutional right to a jury trial
by ensuring that a waiver of that right is made knowingly and
intelligently. This responsibility becomes especially critical
where there is evidence that the defendant suffers from a low
I.Q. or a learning disability and there is no written waiver. In
these circumstances, at least, a court must conduct an in-
depth colloquy with the defendant designed to ensure that he
understands the import and effect of the right he is waiving.
Because the district court failed to do so here, we reverse and
remand.
REVERSED and REMANDED.