Opinion
A02-18 CR (JWS)
August 7, 2002
ORDER FROM CHAMBERS
I. INTRODUCTION
At docket 30, defendant Antonio A. Donovo appeals the magistrate judge's denial of his request for a jury trial. The government has filed an opposing brief. Oral argument has not been requested and would not assist the court.
II. BACKGROUND
The government has charged Donovo with sexual harassment of a fisheries observer in violation of 16 U.S.C. § 1857(1)(L). The maximum punishment is six months incarceration and a $100,000 fine. Civil penalties of $100,000 per day for each violation may also be assessed. Donovo moved for a trial by jury. The magistrate judge denied Donovo's motion. Donovo now appeals. Other facts and the court's analysis are discussed below.
See 16 U.S.C. § 1859(b).
See 16 U.S.C. § 1858.
III. STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(A) and D. Ak. MR 12, this court hears appeals of non-dispositive pretrial motions by applying a clearly erroneous standard of review to findings of fact and a de novo standard of review to conclusions of law. The issue raised in this appeal is solely a question of law. Therefore, the court will apply a de novo standard of review.
See 28 U.S.C. § 636(b)(1)(A); D. Ak. MR 12.
IV. DISCUSSION
The Sixth Amendment to the United States Constitution guarantees the right to a jury trial in all criminal prosecutions. However, there is no such right for petty offenses. A presumption exists that any violation or offense punishable by six months incarceration or less constitutes a "petty offense" for which no right to a jury trial exists. However, this presumption may be overcome by "objective indications of the seriousness with which society regards the offense." The primary focus must be on the period of incarceration. Additional penalties, considered with the period of incarceration, may establish that the offense is not a petty one if the additional penalties are severe such that they reflect a clear legislative determination to regard the offense as a serious one.
See Lewis v. United States, 518 U.S. 322, 325 (1996).
See Blanton v. City of North Las Vegas, 489 U.S. 538, 541 (1989).
Id. at 543.
Id. at 541 (quoting Frank v. United States, 395 U.S. 147, 148 (1969)).
Id. at 542.
Id. at 542.
In Blanton v. City of North Las Vegas, the Court held that a state offense was a petty offense where the potential penalty carried a maximum of six months incarceration and a $1,000 fine. In United States v. Nachtigal, the Court held that an offense was a petty offense where the potential penalty carried a maximum period of six months incarceration and a $5,000 fine. In United States v. Clavette, the Ninth Circuit held that an offense was a petty offense where the potential penalty carried a maximum of six months incarceration and a $25,000 fine. In United States v. Ballek, the Ninth Circuit held that an offense was a petty offense where the potential penalty carried a maximum of six months incarceration and restitution exceeding $56,000. The court distinguished restitution from fines or other penalties because restitution represented a debt already owed to the victim. Writing for the panel, Judge Kozinski observed:
489 U.S. 538 (1989).
507 U.S. 1 (1993).
135 F.3d 1308 (9th Cir. 1998).
170 F.3d 871 (9th Cir. 1999).
Id. at 876.
Nevertheless, there clearly comes a point where potential punishment other than incarceration may be so severe that the offense will no longer be considered petty. See, e.g., Twentieth Century Fox Film Corp., 882 F.2d at 663. This is especially true if the punishment may be imposed in addition to a term of imprisonment. At the same time, the possibility of some non-custodial punishment, even in addition to a six-month term of imprisonment, will not change the character of the punishment sufficiently to render the offense serious. The question is how intrusive or severe the additional punishment may be. See Blanton, 489 U.S. at 543, 109 S.Ct. 1289. Where the additional punishment could involve the imposition of a very large fine, or a very long period of probation, or the forfeiture of substantial property, the severity of the total punishment may be sufficiently great so as to turn what would otherwise be a petty offense into a serious one.
Id. at 876 (citations and italics in original) (underscore emphasis added).
The case cited by Judge Kozinski, Twentieth Century Fox, was a Second Circuit case where the court held that imposition of a fine that could exceed $100,000 entitled a corporation to a trial by jury in a criminal contempt proceeding.
See United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 665 (2d Cir. 1989).
In Duncan v. Louisiana, the Court held that a state law carrying a potential sentence of two years imprisonment and a $300 fine was a serious offense for which the defendant was entitled to a jury trial. Writing for the majority, Justice White noted:
391 U.S. 145 (1968).
In determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial, we are counseled by District of Columbia v. Clawans, supra, to refer to objective criteria, chiefly the existing laws and practices in the Nation. In the federal system, petty offenses are defined as those punishable by no more than six months in prison and a $500 fine.
Id. at 161.
The definition alluded to by Justice White was found in 18 U.S.C. § 1. Since re-codified at 18 U.S.C. § 19, the statute defines "petty offense" as "a Class B misdemeanor, a Class C misdemeanor, or an infraction, for which the maximum fine is no greater than the amount set forth for such an offense in section 3571(b)(6) or (7) in the case of an individual or section 3571(c)(6) or (7) in the case of an organization." Sections 3571(b)(6) and (b)(7) provide for fines of up to $5,000. Thus, as defined by Congress, a petty offense for an individual would be any offense for which the potential maximum sentence was incarceration for six months and a fine of $5,000. The United States Supreme Court has emphasized that, in determining whether an offense should be deemed serious and not a petty offense, courts should look to objective indications of seriousness as established by the legislature enacting the law in question.
Blanton, 489 U.S. at 542-43.
Here, we are concerned with the effect of punishment pursuant to a federal law. Congress must be presumed to know what the law is when it enacts statutes, including the law as interpreted by courts, and related statutes should be interpreted and construed in para materia. When Congress has defined a petty offense for individuals as one involving imposition of six months incarceration and a $5,000 fine, a potential sentence exceeding that sentencing range provides an objective indication that the offense falls outside the category of petty offenses.
See, e.g., Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1213 (9th Cir. 2001); Native Village of Venetie v. Alaska, 944 F.2d 548, 553-54 (9th Cir. 1991).
See, e.g., Department of Water and Power of Los Angeles v. Bonneville Power Administration, 759 F.2d 684, 695 (9th Cir. 1985).
The Ninth Circuit has applied Justice White's analysis. In United States v. Hamdan, the Ninth Circuit examined the predecessor to 18 U.S.C. § 19 and commented:
552 F.2d 276 (9th Cir. 1977).
Clearly, the interests of uniformity, objectivity, and practical judicial administration would be served by accepting this statutory standard as the monetary measure of a serious offense for the purpose of the right to jury trial. It is not unrealistic to treat any fine in excess of $500 as a serious matter to all individuals, even though they may vary in their ability to sustain incarceration far in excess of six months.
Id. at 280.
What may now be called the "Section 19 test" explained by Justice White in Duncan and applied by the Ninth Circuit in Hamdan is consistent with other precedent. Nachtigal involved a National Park Service regulation imposing six months incarceration and a $5,000 fine. This would fall within the definition of a "petty offense" under 18 U.S.C. § 19. Blanton involved application of state law. There would be no need for the Court to discuss Section 19 in Blanton.
However, the "Section 19 test" cannot be an entirely accurate statement of the law (or at least not the law applied in the Ninth Circuit) because in Clavette the Ninth Circuit held that a sentence of six months and potential fine of $25,000 was a petty offense notwithstanding the fact that the offense in question was a federal offense. Clavette and similar cases can be reconciled with the analysis set forth by Justice White in Duncan by recognizing that the analysis does not yield an absolute, bright-line test. A federal offense is not automatically a non-petty offense because the potential sentence is six months incarceration with a fine exceeding $5,000, however, a court may, indeed should, weigh the amount of the fine in light of Section 19 as well as other factors when determining whether or not an offense is a petty offense. Construing the Section 19 test in this flexible manner reconciles existing precedent, and is faithful to underlying juridical principles.
Donovo faces a potential penalty of six months incarceration and a fine of $100,000 for a federal offense. Congress has defined petty offenses as those involving sentences of six months incarceration and a $5,000 fine. The fine Donovo faces may be imposed in addition to the period of incarceration, a factor considered especially significant by Judge Kozinski when he crafted the opinion in Ballek. A fine of $100,000 far exceeds the typical fine imposed for low-level misdemeanors, violations, or other offenses. Furthermore, Judge Kozinski cited Twentieth Century Fox as support for the proposition that severe fines could transform a petty offense into a serious one. Twentieth Century Fox held that fines exceeding $100,000 would suffice to make a petty offense a serious one for a corporation facing a criminal contempt sanction. If a $100,001 fine would be enough to entitle a corporation to a jury trial, it seems problematic to deny individuals a similar right when they face potential fines of $100,000. To the extent, if any, that the court need distinguish Clavette — where an offense carrying a $25,000 fine and six months incarceration was characterized as a petty offense — this court believes it is enough to point out that the potential fine here is four times larger than the Clavette fine.
Here, the court believes that "the additional punishment . . . involve[s] . . . imposition of a very large fine . . . [such that] the severity of the total punishment [is] sufficiently great so as to turn what would otherwise be a petty offense into a serious one." It therefore follows, in this court's view, that Donovo is entitled to a trial by jury, for "[t]he primary purpose of the jury in our legal system is to stand between the accused and the powers of the State." When, in addition to imprisonment for six months, the government has the power to impose fines of $100,000, it is flexing considerable muscle. The conflict deserves a jury to act as the referee.
Ballek, 170 F.3d at 876.
Lewis v. United States, 518 U.S. 322, 335 (1996) (Kennedy, J., concurring).
V. CONCLUSION
For the foregoing reasons, Donovo is entitled to a jury trial. The decision of the magistrate judge is REVERSED.