finding reasonable person could question impartiality of judge whose chambers was affected by, and staff member and court personnel were injured by, bomb allegedly set off by defendant
How later courts described this case
- finding reasonable person could question impartiality of judge whose chambers was affected by, and staff member and court personnel were injured by, bomb allegedly set off by defendant
- whether an offense is petty or serious is a question of law
Written by the judges who cited it.
The opinion
United States Court of Appeals,
Eleventh Circuit.
No. 94-2737.
UNITED STATES of America, Plaintiff-Appellee,
v.
Francis E. BROWN, Defendant-Appellant.
Jan. 4, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 93-134-MISC-J-10), Terrell Hodges, Judge.
Before EDMONDSON and BIRCH, Circuit Judges, and HENDERSON, Senior
Circuit Judge.
EDMONDSON, Circuit Judge:
This case presents the question of whether a defendant charged
with multiple petty offenses (that is, offenses for which one may
be imprisoned no more than six months) is entitled to a jury trial
under the Sixth Amendment when the maximum allowable sentences for
the charged offenses total greater than six months. The answer is
"no." We hold that the denial of Brown's request for a trial by
jury did not amount to constitutional error, and we affirm the
decision of the district court.
I.
Francis E. Brown was charged with two petty offenses: removal
of forest products (crooked wood) from a national park without
authorization, in violation of 36 C.F.R. § 261.6(h), and parking in
a restricted area, in violation of 36 C.F.R. § 261.56. Each count
carried a maximum penalty of six month's imprisonment or a fine of
$5,000, or both. 18 U.S.C. § 3571(b); 36 C.F.R. § 261.1b.
Brown's case was before a magistrate judge. The magistrate
denied Brown's request for a jury trial, and Brown was found guilty
of removing forest property but not guilty of the parking
violation. He was sentenced to three months unsupervised
probation, a fine of $140, and a special assessment of $10. The
conviction and sentence were upheld by the District Court (Hodges,
J., presiding).
II.
Brown's appeal presents a question of law, which we review de
novo. United States v. Terry, 60 F.3d 1541, 1543 (11th Cir.1995).
The Sixth Amendment provides that "in all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall
have been committed." U.S. Const. amend. VI. The Supreme Court
has read this language to apply only to "serious," as opposed to
"petty," crimes. Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct.
1444, 1452, 20 L.Ed.2d 491 (1968); see also United States v.
Garner, 874 F.2d 1510, 1511 (11th Cir.1989).
The distinction between the serious and the petty is to be
made by reference to the maximum penalty authorized for a given
offense by the relevant legislative body. Baldwin v. New York, 399
U.S. 66, 68, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970) (plurality
opinion). Crimes carrying a maximum prison term of greater than
six months are serious and must be tried to a jury if the defendant
desires. Baldwin, 399 U.S. at 69, 90 S.Ct. at 1888. Crimes
carrying a maximum term of six months or less are presumed (though
not conclusively) to entitle a defendant to no jury trial. Blanton
v. City of North Las Vegas, Nev., 489 U.S. 538, 541, 109 S.Ct.
1289, 1293, 103 L.Ed.2d 550 (1989).
Other circuits, addressing the right to a trial by jury for
multiple petty offenses whose maximum penalties add up to greater
than six months' imprisonment, have reached a range of results.
The Fourth Circuit, in United States v. Coppins, 953 F.2d 86, 89-90
(4th Cir.1991), held that jury trials are available under the Sixth
Amendment to those facing aggregate penalties potentially exceeding
six months, regardless of a judge's pre-expressed intentions not to
impose a sentence greater than six months. Judge Niemeyer
dissented, arguing that multiple petty offenses should not be
aggregated, and would thus have concluded there was no right to a
jury trial. Id. at 92 (Niemeyer, J., dissenting). Also, the
Second Circuit recently held that "the mere possibility of
consecutive sentences exceeding six months' imprisonment is
insufficient to trigger a defendant's right to a jury trial."
United States v. Lewis, 65 F.3d 252, 254 (2d Cir.1995).
The Tenth Circuit, in United States v. Bencheck, 926 F.2d
1512, 1519-20 (10th Cir.1991), held that multiple petty offense
penalties should be aggregated, but even so, the trial judge can
obviate the need for a jury trial by declaring on the record in
advance that no prison sentence greater than six months will
obtain. Judge Ebel, dissenting, would have held that aggregation
was appropriate and that only the legislative maximum, not any
prior determination by the trial judge, was relevant. Id. at 1520-
21 (Ebel, J., dissenting). The Ninth Circuit, in a case that
predates Blanton, has said that a defendant is entitled to a jury
trial when the sentence actually imposed for multiple charges
exceeds six months. See Rife v. Godbehere, 814 F.2d 563, 565 (9th
Cir.1987).
Having considered the various opinions in these cases, as
well as the arguments of counsel in this case, we are persuaded by
Lewis, supra, and by Judge Niemeyer's dissent in Coppins, supra.
We hold that the "aggregation" of penalties for multiple petty
offenses does not mandate a jury trial. That concerns for judicial
economy may motivate the joinder of multiple charges in one trial
does not affect the constitutional entitlement to a trial by jury.
A crime is "serious" for Sixth Amendment purposes only when a
popularly-elected legislature has deemed it to be so, as evidenced
by the legislatively-designated maximum sentence. See Blanton, 489
U.S. at 541 & n. 5, 109 S.Ct. at 1292 & n. 5. In this case, Brown
was charged with no serious offense. Thus, in the words of Judge
Niemeyer, "[t]his is the case where multiple zeros still add up to
zero." 953 F.2d at 92.* Brown's conviction before the magistrate
must therefore be AFFIRMED.
*
Counsel for Brown asserted at oral argument that the
prosecution in this case may have been bound under Fed.R.Crim.P.
8 to bring both charges against him in a single action. In
contrast, Judge Niemeyer specifically noted that joinder in
Coppins was permissive. 953 F.2d at 92.
We think the argument that joinder was mandatory here
is not dispositive. A statute requiring joinder would not
reflect a legislative determination of the seriousness of
any particular crime. Lewis, 65 F.3d 252.