Petition for Writ of Certiorari — Joshua Flores, Petitioner v. United States

No. ________

I N T HE SU P REME CO U RT O F T HE U N I T ED STAT ES

________________________________

J O SHU A F L O RES,

Petitioner ,

v.

UNITED STATES,

________________________________

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

________________________________

P ET I T I ON F O R A WRI T O F CERT IO RA RI

JODI LINKER

Federal Public Defender

Northern District of California

TODD M. BORDEN*

Assistant Federal Public Defender

450 Golden Gate Avenue, 19th Floor

San Francisco, California 94102

(415) 436-7700

*Counsel of Record for Petitioner

QUESTION PRESENTED

Whether Article III’s guarantee of the right to a jury trial for “all Crimes, except

in Cases of Impeachment,” and the Sixth Amendment’s guarantee of the right to a

jury trial “in all criminal prosecutions” includes so-called “petty” misdemeanors.

i

TABLE OF CONTENTS

QUESTION PRESENTED .............................................................................................I

TABLE OF CONTENTS ............................................................................................ II

TABLE OF AUTHORITIES ....................................................................................... III

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISIONS.............................................................................. 1

STATEMENT OF THE CASE....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 3

I.

THE CONSTITUTION’S GUARANTEE OF THE RIGHT TO A JURY TRIAL EXTENDS TO

ALL CRIMINAL PROSECUTIONS, INCLUDING SO-CALLED “PETTY” OFFENSES. ................. 4

A. This Court’s decision in Callan is wrong and should be overruled. ............. 4

1.

The text of Article III and the Sixth Amendment speak

categorically and do not admit of any petty-offense exception. ......... 4

2.

The petty-offense exception is not rooted in history. .......... 6

3.

The petty-offense exception is unworkable. .......................... 8

B. This case represents an excellent vehicle to address the question

presented, which is exceptionally important. ................................................ 9

CONCLUSION............................................................................................................. 11

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TABLE OF AUTHORITIES

Baldwin v. New York,

Federal Cases

399 U.S. 66 (1970) ................................................................................................... 4

Blanton v. City of North Las Vegas,

489 U.S. 538 (1989) ................................................................................................. 8

Callan v. Wilson,

127 U.S. 540 (1888) ............................................................................... 3, 4, 5, 6, 10

Crawford v. Washington,

541 U.S. 36 (2004) ............................................................................................... 8, 9

Duncan v. Louisiana,

391 U.S. 145 (1968) ................................................................................................. 3

Ex parte Wilson,

114 U.S. 417 (1885) ................................................................................................. 5

Gibbons v. Ogden,

22 U.S. (9 Wheat) 1 (1824) ...................................................................................... 4

Lewis v. United States,

518 U.S. 322 (1996) ........................................................................................... 9, 10

Schick v. United States,

195 U.S. 65 (1904) ............................................................................................... 6, 7

Sullivan v. Louisiana,

508 U.S. 275 (1993) ................................................................................................. 9

United States v. Clavette,

135 F.3d 1308 (9th Cir. 1998) ................................................................................. 9

United States v. Lesh,

107 F.4th 1239 (10th Cir. 2024) .......................................................................... 7-8

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Federal Rules and Statutes

36 C.F.R. § 2.32 ............................................................................................................ 2

36 C.F.R. § 2.34 ............................................................................................................ 2

36 C.F.R. § 2.35 ............................................................................................................ 2

18 U.S.C. § 1865 ........................................................................................................... 2

18 U.S.C. § 3402 ........................................................................................................... 2

28 U.S.C. § 1254 ........................................................................................................... 1

Other Authorities

Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor

System Traps the Innocent and Makes America More Unequal 256–58 (2018) ..... 10

Andrea Roth, The Lost Right to Jury Trial in “All” Criminal Prosecutions,

72 Duke L.J. 599 (2022) .......................................................................................... 3

John D. King, Juries, Democracy, and Petty Crime,

24 U. Pa. J. Const. L. 817 (2022) ............................................................................. 7

John M. Beattie, Garrow and the Detectives, Lawyers, and Policemen at the Old

Bailey in the Late Eighteenth Century,

11 Crime, Hist. & Societies 5 (2007) ....................................................................... 6

Laura I. Appleman, The Lost Meaning of the Jury Trial Right,

84 Ind. L.J. 397 (2008) ............................................................................................. 7

Rules of Procedure for the Trials of Minor Offenses Before Magistrates,

51 F.R.D. 197 (1971) ............................................................................................... 4

Stephen A. Siegel, Textualism on Trial: Article III’s Jury Trial Provision, the Petty

Offense Exception, and Other Departures from Clear Constitutional Text,

51 Hous. L. Rev. 89 (2013) ....................................................................................... 7

Timothy Lynch, Rethinking the Petty Offense Doctrine,

4 Kan. J.L. & Public Policy 7 (1994)........................................................................ 7

William Blackstone, Commentaries on the Laws of England (1769) ......................... 6

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OPINION BELOW

The Ninth Circuit’s decision (Pet. App. 1–6) is unreported, but available at 2024

WL 4036580.

JURISDICTION

The Ninth Circuit issued its decision on September 4, 2024. App. 1a. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

Article III, section 2, clause 3 of the United States Constitution provides, in

relevant part: “The Trial of all Crimes, except in Cases of Impeachment, shall be by

Jury . . . .” U.S. Const. art. I, § 2, cl. 3.

The Sixth Amendment of the Constitution provides, in relevant part: “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.

1

STATEMENT OF THE CASE

In the summer of 2019, Joshua Flores spent the day at Baker Beach in San

Francisco, California, which was part of the Golden Gate National Recreation Area.

After an encounter with the United States Park Police, Flores was charged with

three federal misdemeanors: interference with agency functions, in violation of 36

C.F.R. § 2.32(a)(1) (Count 1); being present in a park area under the influence of

alcohol, in violation of 36 C.F.R. § 2.35(c) (Count 2); and disorderly conduct, in

violation of 36 C.F.R. § 2.34(a)(1) (Count 3). (Excerpts of Record (ER) 594–96.) The

maximum penalty for each of these three offenses was 6 months’ imprisonment, a

fine, or both. See 18 U.S.C. § 1865(a).

Flores moved in limine for a jury trial under Article III and the Sixth

Amendment. (ER 343–61.) The magistrate judge denied his motion. (ER 70.) The

magistrate judge later found Flores guilty on all counts following a bench trial. (ER

73–82.) The magistrate imposed a time-served custodial sentence, a $100 fine, and

12 months of supervised release. (ER 38–44.) Flores appealed his conviction to the

district court under 18 U.S.C. § 3402. (ER 72.) Flores argued on appeal, inter alia,

that he was denied his right to a jury trial under the Constitution. (District Court

Docket No. 133.) The district court affirmed Flores’s conviction. (ER 2.) Flores

then appealed to the Ninth Circuit, again raising, among other issues, his jury-trial

claim. (ER 597.) The Ninth Circuit affirmed his conviction, finding that Flores had

no right to a jury trial because he was charged only with “petty” offenses. (Pet. App.

5–6.)

2

REASONS FOR GRANTING THE WRIT

Section 2, clause 3 of Article III of the Constitution provides that “[t]he Trial of

all Crimes, except in Cases of Impeachment, shall be by Jury.” The Sixth

Amendment similarly provides that, “[i]n all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury.” Each

provision uses categorical language admitting no exceptions: In all prosecutions of

all crimes, a defendant is entitled to a jury trial.

In Callan v. Wilson, 127 U.S. 540 (1888), however, this Court recognized an

exception. Reading the word “crime” in an unusually “limited” way, Callan held

that the right to trial by jury extends only to “offenses of a serious or atrocious

character.” Id. at 549. According to Callan, when the Framers said “all Crimes” in

Article III and “all criminal prosecutions” in the Sixth Amendment, they could not

have meant “minor or petty offenses,” which thus may be adjudicated “summarily,

and without a jury.” Id. at 552; accord Duncan v. Louisiana, 391 U.S. 145, 160–61

(1968). But the Court’s reasoning in Callan defies the plain text of the

Constitution, and recent scholarship demonstrates that the Founding era

understanding of the phrases “all crimes” and “all criminal prosecutions” did not

admit of any exceptions for so-called “petty” offenses. See, e.g., Andrea Roth, The

Lost Right to Jury Trial in “All” Criminal Prosecutions, 72 Duke L.J. 599, 635–61

(2022).

3

I.

The Constitution’s guarantee of the right to a jury trial extends to all criminal

prosecutions, including so-called “petty” offenses.

A. This Court’s decision in Callan is wrong and should be overruled.

1. The text of Article III and the Sixth Amendment speak

categorically and do not admit of any petty-offense exception.

Callan and its progeny should be overruled. First, constitutional holdings are

supposed to be grounded in “the language of the instrument.” Gibbons v. Ogden, 22

U.S. (9 Wheat) 1, 186–89 (1824). But the Court’s focus in Callan was openly on the

Constitution’s “spirit” rather than its text. 127 U.S. at 549. The Constitution’s

language addressing jury trials in criminal cases is straightforward, and “[b]y its

terms, the [Sixth] Amendment makes no exception for so-called ‘petty offenses.”’

Rules of Procedure for the Trials of Minor Offenses Before Magistrates, 51 F.R.D.

197, 209 (1971) (Black, J., dissenting); accord Baldwin v. New York, 399 U.S. 66, 76

(1970) (Black, J., concurring).

Contemporaneous dictionaries and other authoritative Founding Era sources

support that conclusion. See Roth, supra, at 638–41 (collecting sources). They

stand for the commonsense conclusion that “a criminal prosecution” is any case

“prosecuted in a criminal court, rather than a civil suit.” Id. Although there is

some support for a narrower reading of “crime” as referring only to felonies, that

was not the more common meaning of the word at the Founding. Id. And even if

that reading were a plausible interpretation of section 2, clause 3 of Article III, it

still would make no sense as applied to the Sixth Amendment’s reference to “all

criminal prosecutions,” which draws a distinction between criminal and civil

proceedings, not serious and petty offenses.

4

Any doubt on this front is resolved by other contemporaneous sources of law. To

begin with, the Fifth Amendment demonstrates that the Framers knew how to limit

constitutional rights only to felonies when that was their intent. The Grand Jury

Clause provides for indictment by grand jury only for a “capital, or otherwise

infamous crime.” As this Court held three terms before Callan, that means felonies.

Ex parte Wilson, 114 U.S. 417, 423 (1885). If Callan were rightly decided, the Fifth

Amendment’s Grand Jury Clause’s use of the phrase “capital, or otherwise

infamous” to modify the word “crime” would be surplusage.

Beyond that, the Judiciary Act of 1789, passed one day before the Bill of Rights

was introduced, expressly granted the federal district courts jurisdiction to

adjudicate crimes with punishments of less than six months. At the same time, it

provided that “the trial of issues in fact, in the district courts, in all causes except

civil causes of admiralty and maritime jurisdiction, shall be by jury.” 1 Stat. 73, ch.

20, § 9 (emphasis added). Surely Members of the First Congress—among them, the

Framers of the Constitution and drafters of the Sixth Amendment—could not have

meant to enshrine only a limited jury trial right in the Constitution immediately

after enacting a statute mandating jury trials in all criminal prosecutions in the

federal district courts.

In short, the words “all Crimes” and “all criminal prosecutions” must be taken

to mean exactly what they say—each and every one, without regard for whether a

judge deems the crime to be serious or petty.

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2. The petty-offense exception is not rooted in history.

The historical justification for the petty-offense exception is likewise not

sustainable. Callan itself eschewed much “reference to authorities,” instead simply

“conceding that there is a class of petty or minor offenses not usually . . . triable [at]

common law by a jury.” 127 U.S. at 555. The principal justification for the pettyoffense exception came later, in Schick v. United States, 195 U.S. 65 (1904). There,

the Court relied on Blackstone to draw a supposed distinction between “criminal

offenses” and “crimes,” the former apparently including misdemeanors and the

latter not. Id. at 70.

But as academics have since noted (e.g., Roth, supra, at 605), Blackstone

himself expressly rejected the crux of Schick’s holding, concluding that summary

convictions for crimes deemed petty by Parliament were unjust deviations from the

right to jury in criminal cases. See 4 William Blackstone, Commentaries on the

Laws of England 280–81 (1769). And as Justice Harlan explained, Schick’s

reasoning is nonsense: plainly enough, “[a] crime is a criminal offense and a

criminal offense is a crime.” 195 U.S. at 98 (Harlan, J., dissenting).

It is also hard to imagine that the Framers would have intended to incorporate

a controversial and “mischievous” exception to the “admirable and truly English

trial by jury.” Blackstone, supra, at 280–81. Indeed, it was well understood at the

Founding that summary criminal adjudications were an exercise of “dictatorial

power.” John M. Beattie, Garrow and the Detectives, Lawyers, and Policemen at the

Old Bailey in the Late Eighteenth Century, 11 Crime, Hist. & Societies 5, 21 (2007).

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The petty-offense exception has never been adequately justified, and the subject

of much criticism from the very outset. See, e.g., Schick, 195 U.S. at 98 (Harlan, J.,

dissenting). Academics have recently revived those criticisms, supporting them

with the kind of rigorous historical work that the issue demands. See John D. King,

Juries, Democracy, and Petty Crime, 24 U. Pa. J. Const. L. 817, 844 (2022)

(“Supreme Court doctrine on the petty offense exception is on a collision course with

itself”); Roth, supra, at 606 (2022) (“[T]he doctrine’s ostensible justifications . . . are

baseless[.]”); Stephen A. Siegel, Textualism on Trial: Article III’s Jury Trial

Provision, the Petty Offense Exception, and Other Departures from Clear

Constitutional Text, 51 Hous. L. Rev. 89, 94 (2013) (calling the petty-offense

exception a “departure from clear and concrete constitutional command”); Laura I.

Appleman, The Lost Meaning of the Jury Trial Right, 84 Ind. L.J. 397, 399 (2008)

(calling the elimination of bench trials “a return to original common-law and

constitutional meaning”); Timothy Lynch, Rethinking the Petty Offense Doctrine, 4

Kan. J.L. & Public Policy 7, 7 (1994) (“There is little evidence to support the notion

that the framers of the Constitution would have approved the Supreme Court’s

departure from the unequivocal provisions they carefully drafted [in the Sixth

Amendment.]”).

Further, lower court judges have also recently weighed in, calling on the Court

to reconsider the petty-offense exception. See United States v. Lesh, 107 F.4th 1239,

1251–54 (10th Cir. 2024) (Tymkovich, J., joined by Rossman, J., concurring) (noting

“criticism [of the petty-offense exception] for its disregard of the text of Article III

and the Sixth Amendment” and its incompatibility “with the original public

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understanding of the Constitution”). 1 This Court previously has granted review to

overturn precedent where federal jurists “and academics have suggested that [the

Court] revise [its] doctrine to reflect more accurately the original understanding of

the [Constitution].” Crawford v. Washington, 541 U.S. 36, 60 (2004). The same

outcome is warranted here.

3. The petty-offense exception is unworkable.

In addition to being atexual and not rooted in history, the petty-offense

exception is also unworkable because courts are left to guess at which offenses are

petty and which are serious according to a shifting, amorphous standard. As the

Court explained in Blanton v. City of North Las Vegas, 489 U.S. 538 (1989), early

twentieth-century formulations of the distinction called for “recourse of the judge to

his own sympathy and emotions,” which of course was no standard at all. Id. at 541

n.5. Later twentieth-century decisions “focused on the nature of the offense and on

whether it was triable by a jury at common law.” Id. at 541. But “adherence to a

common-law approach has been undermined” in recent years “by the substantial

number of statutory offenses lacking common-law antecedents.” Id. at 541 n.5.

More recently, the Court has attempted to establish “objective indications of the

seriousness with which society regards the offense,” relying principally on “the

maximum authorized period of incarceration.” Id. at 541–42. But even there, the

Court has declined to draw clear, predicable lines. Id. For instance, it is now the

1 This Court’s docket in Lesh suggests that a petition for a writ of certiorari raising this

same issue is forthcoming; it is currently due on December 13, 2024. (Lesh v. United

States, No. 24A270.) The Court may wish to consider this petition at the same

conference as Lesh.

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general rule that “[a]n offense carrying a maximum prison term of six months or

less is presumed petty,” but that standard is qualified by the potential for

unidentified legislative indications that the offense is “serious.” Lewis v. United

States, 518 U.S. 322, 326 (1996). And yet a defendant who faces years of prison for

multiple consecutively sentenced “petty” offenses may still be denied a jury trial.

Id.

There is no predictable standard to be gleaned from these cases—and certainly

none grounded in the Constitution’s text or original meaning. “The Constitution

prescribes” when jury trials are required in criminal cases, and this Court, no less

than any other, “lack[s] authority to replace [that rule] with one of [its] own

devising.” Crawford, 541 U.S. at 67.

B. This case represents an excellent vehicle to address the question presented,

which is exceptionally important.

This case is an ideal vehicle to address the question presented. Flores

consistently preserved the jury-trial issue before the magistrate judge, during his

initial appeal to the district court, and at his subsequent appeal to the Ninth

Circuit. And the Ninth Circuit’s decision expressly invoked the petty-offense

exception as the basis for affirming the magistrate’s denial of his request for a jury

trial. Pet. App. 5–6 (citing United States v. Clavette, 135 F.3d 1308, 1309 (9th Cir.

1998)). Further, the denial of “[t]he right to trial by jury . . . unquestionably

qualifies as ‘structural error.’” Sullivan v. Louisiana, 508 U.S. 275, 281–82 (1993).

Accordingly, if this Court were to agree with the position Flores advances in this

petition, automatic reversal of his three misdemeanor convictions would be

9

mandatory, without regard to whether Flores suffered any specific prejudice. See

id.

Finally, the question presented is an important one. Millions of misdemeanors

are charged every year throughout the United States. See Alexandra Natapoff,

Punishment Without Crime: How Our Massive Misdemeanor System Traps the

Innocent and Makes America More Unequal 256–58 (2018). “Petty offenses” are

anything but “petty” for those convicted. Aside from the prospect of many months

or even years of imprisonment (Lewis, 518 U.S. at 337 (Kennedy, J., concurring)),

misdemeanor convictions can mean losing a job, driver’s license, public benefits,

housing, or child custody. Natapoff, supra, at 20. They also can mean deportation

or limitations on the right to carry firearms. King, supra, at 844.

The Framers anticipated that all criminal defendants in all criminal

prosecutions would have the right to trial by jury before facing such life-altering

deprivations of liberty. The judge-made exception for “petty offenses” cannot be

squared with the text or history of Article III or the Sixth Amendment. The Court

should thus overturn Callan.

10

CONCLUSION

The Court should grant this petition for a writ of certiorari.

December 3, 2024

Respectfully submitted,

JODI LINKER

Federal Public Defender

Northern District of California

TODD M. BORDEN*

Assistant Federal Public Defender

* Counsel of Record for Petitioner

11