Opinion
04 Crim. 1346 (MHD).
May 2, 2005
MEMORANDUM ORDER
Defendant James Donovan faces a two-count information charging him with violations under 38 U.S.C. § 901. That provision directs the Secretary of Veterans Affairs to promulgate regulations "for the maintenance of law and order and the protection of persons and property on Department property." Id., § 901(a). It further prescribes that violations of those regulations will subject the offender to imprisonment of "not more than six months," or a fine in accordance with the United States Criminal Code, or both.Id., § 901(c). The information alleges that the defendant violated two regulations issued by the Secretary when he "engage[d] in disorderly conduct which obstructed the normal use . . . and . . . operation of" a Veterans Affairs hospital, in violation of 38 C.F.R. § 1.218(b)(11), and failed to obey safety signs posted in the hospital, in violation of 38 C.F.R. § 1.218(b)(6).
The statute authorizes the Secretary to prescribe lesser prison terms or fines if he so chooses. 38 U.S.C. § 901(c).
Defendant, who has been authorized to represent himself in this case, has requested a jury trial. The Government has opposed the request, asserting that there is no constitutional or statutory right to a jury when a defendant faces one or more charges that constitute a "petty" offense. (See April 14, 2005 letter to the Court from Assistant United States Attorney Arthur Gollwitzer III).
The court has appointed standby counsel to assist defendant.
The United States Supreme Court has addressed this specific question in Lewis v. United States, 518 U.S. 322 (1996). The defendant in that case faced a two-count information, and both counts charged obstruction of the mail under 18 U.S.C. § 1701, a charge for which the maximum term of imprisonment authorized by law is six months. Id. at 324. The specific question framed for the Court in Lewis was whether the defendant, because he was charged with two counts, was entitled to a jury trial, since a defendant facing a charge that authorizes a maximum penalty of twelve months is entitled to a jury. Id. at 325.
The alternative issue that the Court faced in Lewis was whether an advance commitment by the trial judge not to impose a longer overall prison term than six months would preclude a jury trial. The Court never reached that issue, however, because of its resolution of the first question.
As the Court in Lewis explained, although the Sixth Amendment guarantees the right to a jury trial "[i]n all prosecutions," that provision has long been interpreted to apply only to "prosecutions of serious offenses," and thus "`there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.'" Id. at 325 (quotingDuncan v. Louisiana, 391 U.S. 145, 159 (1968)). The Court further noted that, for this purpose, the category of "petty" offenses was defined by the maximum penalty attached by the legislative branch, "because it reveals the legislature's judgment about the offense's severity." Id. at 326.
In determining offense severity based on the potential penalty, the Supreme Court looks primarily to the maximum authorized prison term, rather than to the extent of any fine or other statutory sanction attached to the crime. "While penalties such as probation or a fine may infringe on a defendant's freedom, the deprivation of liberty imposed by imprisonment makes that penalty the best indicator of whether the legislature considered an offense to be `petty' or `serious.'" Id. at 326 (citingBlanton v. North Las Vegas, 489 U.S. 538, 542 (1989)). As for drawing a line between "petty" and "serious" offenses, the Court has determined that "[a]n offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious." Id. at 326 (citingBlanton, 489 U.S. at 543; Codispoti v. Pennsylvania, 418 U.S. 506, 512 (1974)).
As for the ultimate question presented in Lewis, the Court held that the fact that the defendant faced two petty-offense charges in the same information does not trigger a jury-trial right even though the linking of the counts potentially exposed the defendant to a cumulative total of twelve months in prison. In explaining its conclusion on this issue, the Court emphasized that the determinative factor was the evaluation by the legislature as to the severity of the crime:
we determine whether an offense is serious by looking to the judgment of the legislature, primarily as expressed in the maximum authorized term of imprisonment. Here, by setting the maximum authorized prison term at six months, the Legislature categorized the offense of obstructing the mail as petty. The fact that the petitioner was charged with two counts of a petty offense does not revise the legislative judgment as to the gravity of that particular offense, nor does it transform the petty offense into a serious one, to which a jury trial right would apply.
. . . Where we have a judgment by the legislature that an offense is "petty," we do not look to the potential prison term faced by a particular defendant who is charged with more than one such petty offense. The maximum authorized penalty provides an "objective indicatio[n] of the seriousness with which society regards the offense," Frank [v. United States], U.S. [147,] 148 [(1969)], and it is that indication that is used to determine whether a jury trial is required, not the particularities of an individual case.Id. at 327-28 (italics in original).
In this case, defendant faces essentially the same circumstances as did Lewis. Each count exposes him, if convicted, to a maximum of six months in prison. Hence the charges presumptively belong to the category of petty offenses, which does not entail a right to a jury trial.
Defendant also cannot point to any other statutory penalties that would take these charges out of the presumptive petty-offense classification. If convicted, he faces, on each count, a maximum fine of five thousand dollars, and a mandatory special assessment of $25.00. These are penalties ordinarily associated with petty offenses under the Criminal Code, see 18 U.S.C. §§ 3559(a)(7) 3571(b)(6) (defining crimes with six-month maximum prison terms as Class B misdemeanors and capping fines for such crimes at $5,000.00), and they do not reflect such a disproportionately severe sanction as to indicate that Congress viewed violations of Veterans Affairs regulations as anything other than a petty offense. See, e.g., United States v. Nachtigal, 507 U.S. 1, 5 (1993) (maximum $5,000.00 fine and five years of probation for violation of Interior Department regulations do not alter "petty" nature of offense for which maximum prison term is six months);United States v. Clavette, 135 F.3d 1308, 1309-10 (9th Cir. 1998) (potential $25,000.00 fine does not alter "petty" classification of violation of Endangered Species Act); United States v. Unterburger, 97 F.3d 1413, 1415-16 (11th Cir. 1996) (noting that first violation of Access Act, 18 U.S.C. § 248(b), triggers exposure to six-month prison term or five years of probation, and fine of $10,000.00, court deems these penalties insufficient to trigger jury-trial right).
The cover sheet prepared by the Government also lists a possible supervised release term of one year. Our reading of 18 U.S.C. § 3583(b)(3) suggests, however, that supervised release is not available here, since this case involves a petty offense and the cited provision explicitly excludes petty offenses from its coverage.
Prior to the 1998 repeal of the definition section of the federal Criminal Code, Congress defined the term "petty offense" as encompassing any misdemeanor for which the maximum prison term was no more than six months and the maximum fine did not exceed $5,000.00. See 18 U.S.C. § 1 (Historical and Statutory Notes (quoting former section 1(c)) at 473 (West 2005).
In urging a jury trial, defendant presses the notion that such a trial would likely be fairer than a bench trial, since he would be judged by his peers, and since the Government will likely be calling witnesses who are federal employees, as are the judges sitting in federal court. While these policy arguments might be worthy of debate, the governing Supreme Court decisions foreclose the notion that a defendant may have a jury trial in cases involving a petty offense, and we are bound by that precedent. Accordingly, we are constrained to reject defendant's arguments on this point.
CONCLUSION
For the reasons noted, defendant's application for a jury trial is denied. The trial, now scheduled for May 23, 2005, will be to the court.