United States v. Eloise L. Roby

McMILLIAN, Circuit Judge,

dissenting.

I must respectfully dissent. In my opinion, Rule 23(b) expressly requires a written stipulation. I would adopt the position taken by the Ninth Circuit in United States v. Guerrero-Peralta, 446 F.2d 876, 877 (9th Cir. 1971), that because the “purpose of a written stipulation under Rule 23(b) is to provide ‘the best record evidence of the express consent of a defendant,’ [the] [e]xpress consent given orally by the defendant personally and appearing on the record may be equally good evidence, but that much, as a minimum, must appear.” Id., citing United States v. Virginia Erection Corp., 335 F.2d 868, 871 (4th Cir. 1964) (emphasis in original).