This case is entitled United States vs. United States District Court for the Eastern District of California. Not surprisingly, here's how it plays out:
United States: 1
United States District Court for the Eastern District of California: 0
More specifically, the panel holds (in a per curiam opinion) that Judge Shubb can't hold a bench trial in a criminal case, even when the defendant requests one, when the government refuses to stipulate to waive a jury. Here, Judge Shubb (and the defendant) want a bench trial because it's a molestation case in which the jury will almost assuredly be so inflammed and prejudiced by the molestation evidence that they won't be able to focus on the defendant's only defense (which is an alleged lack of intent to engage in interstate travel). The jury will think that the defendants are scum and convict. Which is why the defendants want a bench trial. And is precisely why the government refuses to waive a jury.
Judge Shubb did an honorable thing, and really was trying both to be modest (and honest) about his inability to remove the inherent prejudice as well as to ensure that the defendants received a fair trial. But the Ninth Circuit also properly noted that Supreme Court precedent, albeit largely in dicta, generally doesn't allow waivers absent consent of the United States. Ergo its holding.
The panel could, and should, have done a lot more in footnote six, and its failure to even try to distinguish adverse authority is pretty lame. But, in the end, those were district court cases, so the Ninth Circuit wasn't compelled to even mention them. Still, having mentioned them, at least the court could have been honest about their import. The "distinction" the panel draws is a weak one. Far better to have simply been honest and say: "Yep, there are those district court cases, but we disagree with them."
P.S. - The whole topic reminds me of the time I summered with the Public Defender's Office in Virginia. Back then (the late 80s), the government used to refuse to stipulate to bench trials in any drug cases. Defendants always wanted (jaded/understanding) judges to be ones finding guilt and sentencing the defendant, whereas the government wanted (naive/harsh) juries to perform those tasks.
Drugs in the 80s, molestations in the 00s. The evils change, but the tactics often remain the same.
