The opinion of the court was delivered by: BRODERICK
In December 1977, Michael Grasso was convicted on one count of mail fraud in a trial without a jury. He was sentenced to six months imprisonment and placed on 41/2 years probation. 18 U.S.C. § 3651. Grasso now moves under 28 U.S.C. § 2255 to vacate that sentence, alleging that he was denied his right to a jury trial because Rule 23(a) of the Federal Rules of Criminal Procedure (F.R.Crim.P.) was not followed. For the reasons discussed below, Grasso's motion will be denied.
Michael Grasso was indicted on 34 counts of mail fraud and 2 related counts. He was first tried without a jury and convicted in March 1977 on one count of mail fraud.
Before the first trial, Grasso signed and filed a written waiver of a jury trial pursuant to F.R.Crim.P. 23(a).
This procedure was not repeated before the second trial nor was a voir dire conducted on the waiver of a jury trial. However, Grasso does not deny that his counsel, Alan Davis, personally advised the trial judge by telephone, with authority from defendant, that a jury was waived at the second trial.
In December 1977, Grasso appealed his second conviction to the Court of Appeals for the Third Circuit. In his brief to the Court of Appeals, Grasso's counsel, Alan Davis, raised in a footnote the possibility that Grasso did not validly waive a jury at the second trial. Mr. Davis noted that he had personally advised the trial judge, with authority from Grasso, that a jury trial was waived. Mr. Davis accordingly declined to press the point on appeal. The government, in its brief to the Third Circuit, devoted a three-paragraph footnote to the question of a valid waiver of a jury trial.
In August 1978, the Third Circuit affirmed the conviction by judgment order without mentioning the waiver issue.
A petition for certiorari to the United States Supreme Court recently was denied.
In November 1978, Grasso filed this § 2255 motion to vacate, set aside or correct his sentence. He stated as his sole ground of challenge that he was denied his constitutional right to trial by jury because he neither signed nor was questioned on the record about a waiver of his right to have his case heard by a jury at the second trial.
Consideration of a § 2255 motion must begin with the axiom that collateral attack on a federal sentence is not to be used as a substitute for direct appeal. United States v. Sappington, 527 F.2d 508 (8th Cir. 1975); United States v. Duhart, 511 F.2d 7 (6th Cir.), Cert. denied 421 U.S. 1006, 95 S. Ct. 2409, 44 L. Ed. 2d 675 (1975); Garcia v. United States, 492 F.2d 395 (10th Cir. 1974), Cert. denied 419 U.S. 897, 95 S. Ct. 178, 42 L. Ed. 2d 142 (1975). Several corollaries to this principle demarcate the perimeter of § 2255: (1) issues decided on appeal cannot be raised collaterally by a § 2255 motion. United States v. Natelli, 553 F.2d 5 (2d Cir. 1977), Cert. denied 434 U.S. 819, 98 S. Ct. 59, 54 L. Ed. 2d 75 (1978); Scott v. United States, 545 F.2d 1116 (8th Cir. 1976), Cert. denied 429 U.S. 1111, 97 S. Ct. 1148, 51 L. Ed. 2d 565 (1977); Stephan v. United States, 496 F.2d 527 (6th Cir. 1974), Cert. denied 423 U.S. 861, 96 S. Ct. 116, 46 L. Ed. 2d 88 (1975); (2) issues that could have been raised on direct appeal and inexcusably were not are not the proper subject of a § 2255 motion. Porth v. Templar, 453 F.2d 330 (10th Cir. 1971); Overton v. United States, 450 F.2d 919 (5th Cir. 1971); Paige v. United States, 456 F.2d 1278 (9th Cir. 1972); and (3) issues apparent on the record on direct appeal are considered to have been waived for purposes of a § 2255 motion. Matysek v. United States, 339 F.2d 389 (9th Cir. 1964); Medrano v. United States, 315 F.2d 361 (9th Cir.), Cert. denied 375 U.S. 854, 84 S. Ct. 114, 11 L. Ed. 2d 81 (1963); Ingram v. United States, 299 F.2d 351 (5th Cir. 1962).
Grasso's collateral claim that the absence of a written waiver or colloquy on the record denied him his Sixth Amendment right to a jury at the second trial is within the second exclusionary rule developed under § 2255. That the alleged defect could have been raised on appeal is obvious. That the issue was not pressed on appeal is less manifest but also certain. The sole mention at the appellate level of the waiver issue was a footnote reference in both Grasso's and the government's briefs. Alan Davis, Grasso's counsel, in over 80 pages of argument, devoted only 3 reluctant paragraphs to the point:
At the original trial, defendant was not voir dired by the trial judge on jury waiver, but filed the written waiver required by Rule 23(a). Prior to the retrial, defense counsel informed the trial judge orally by telephone, with the authority of the defendant, that defendant waived a jury as to the retrial. Defendant was not voir dired by the trial judge and did not file a written waiver as to the retrial.
After the retrial, others have suggested to counsel and to the defendant that defendant is entitled to a new trial because he had not validly ...