Amicus Curiae Brief — David Lesh, Petitioner v. United States

Supreme Court briefJan 16, 2025

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No. 24-654

In the Supreme Court of the United States

DAVID LESH,

Petitioner,

UNITED STATES,

Respondent.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Tenth Circuit

BRIEF OF CRIMINAL LAW PROFESSORS

ANDREA ROTH AND J.D. KING AS AMICI

CURIAE IN SUPPORT OF PETITIONER

DAVID B. OWENS

Counsel of Record

CIVIL RIGHTS AND JUSTICE CLINIC,

UNIVERSITY OF WASHINGTON SCHOOL OF LAW

C/O LOEVY & LOEVY

311 North Aberdeen St.

Chicago, IL 60607

(312) 243-5900

david@loevy.com

January 16, 2025

QUESTION PRESENTED

Article III of the Constitution provides that “[t]he

Trial of all Crimes, except in Cases of Impeachment,

shall be by Jury.” And the Sixth Amendment

provides that “[i]n all criminal prosecutions,” the

accused shall enjoy the right to trial by jury.

The question presented is:

Whether the Constitution’s dual guarantee of

trial by jury contains an unstated exception for

“petty” offenses.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... i

TABLE OF AUTHORITIES ................................... iii

INTERST OF AMICUS CURIAE ............................ 1

REASONS FOR GRANTING THE PETITION ...... 3

UNDER THIS COURT’S PRECEDENTS,

CERTIORARI IS APPROPRIATE WHERE A

PRACTICE DENYING A FUNDAMENTAL

RIGHT CONTRADICTS CONSTITTUIONAL

TEXT AND HISTORY ..................................... 5

II. THERE IS NO BASIS IN THE

CONSTITUTION’S TEXT OR HISTORY TO

EXCLUDE PETTY OFFENSES FROM THE

RIGHT TO A JURY TRIAL ............................. 8

A. The Right to a Jury Trial In the

Constitution’s Text Includes No

Exception for Petty Offenses ................... 8

B. Federal Petty Offenses Are Crimes Now,

and the Jury Right’s History Does Not

Support the Claim That They Would

Have Been Denied a Jury at pthe

Founding ................................................ 12

III. PROVIDING A RIGHT TO A JURY TRIAL

FOR PETTY OFFENSES WILL NOT UPEND

FEDERAL CRIMINAL

ADJUDICATIONS ......................................... 22

CONCLUSION ....................................................... 25

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Baldwin v. New York, 399 U.S. 66 (1970) ............. 20

Blanton v. City of North Las Vegas,

489 U.S. 538 (1989).......................................... 20

Bradford v. Longmont Municipal Court,

830 P.2d 1135 (Colo. App. 1992) ...................... 24

Callan v. Wilson, 127 U.S. 540 (1888) ........18, 19, 20

Crawford v. Washington, 541 U.S. 36 (2004) ...4, 6, 7

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022)......................................... 7, 8

Duncan v. State of La.,

391 U.S. 145 (1968)........................................... 15

Frank v. United States, 395 U.S. 147 (1969)......... 20

Gibbons v. Ogden, 9 Wheat. 1 (1824) ...................... 8

Lewis v. United States, 518 U.S. 322 (1996) ......... 20

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009)............................................. 7

Missouri v. Frye, 566 U.S. 134 (2012) ................... 22

New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1, 25 (2022)........................................... 7

Ramos v. Louisiana, 590 U.S. 83 (2020) ..........4, 5, 6

Schick v. United States, 195 U.S. 65 (1904) 3, 19, 20

U.S. ex rel. Toth v. Quarles,

350 U.S. 11 (1955)......................................... 4, 15

United States v. Chrestman,

525 F. Supp. 3d 14 (D.D.C. 2021) ..................... 13

Cases (Cont.)

United States v. Lyons, No. CR 21-00079,

2024 WL 3898550

(D.D.C. Aug. 22, 2024) ...................................... 13

United States v. Rahimi,

602 U.S. 680 (2024)......................................... 7, 8

United States v. Stedman, No. CR 21-383,

2024 WL 3967389

(D.D.C. Aug. 28, 2024) ...................................... 13

Washington v. Glucksberg,

521 U.S. 702 (1997)............................................. 7

Statutes

18 U.S.C. § 13 ......................................................... 13

18 U.S.C. § 19 ......................................................... 12

18 U.S.C. § 43 ......................................................... 13

18 U.S.C. § 703 ....................................................... 13

18 U.S.C. § 1382 ..................................................... 13

18 U.S.C. § 1793 ..................................................... 13

18 U.S.C. § 3553 ..................................................... 12

18 U.S.C. § 3556 ..................................................... 12

18 U.S.C. § 3559 ..................................................... 12

18 U.S.C. § 3571 ..................................................... 12

FED. R. CRIM. P. 58 ................................................. 12

U.S. CONST. ART. II, § 4 .......................................... 10

U.S. CONST. ART. III. ............................................ 8, 9

U.S. CONST. ART. IV, § 2 ........................................ 11

Statutes (Cont.)

U.S. Const. AMD. V................................................. 11

U.S. CONST., AMD. VI ............................................... 9

Other Authorities

1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH

LANGUAGE 515

(London, W. Strahan, 1755) ............................. 16

5 MATTHEW BACON, A NEW ABRIDGMENT OF THE

LAW 180 (Henry Gwyllim, Bird Wilson & John

Bouvier eds., 3d ed. 1852) (1768) ..................... 17

Alan Feuer, In Capitol Attack, Over 900 People

Have Been Criminally Charged, N.Y. Times

(Dec. 19, 2022)................................................... 13

American Bar Association, Collateral Consequences

of Criminal Convictions: Judicial Bench Book,

OFFICE OF JUSTICE PROGRAMS’ NATIONAL

CRIMINAL JUSTICE REFERENCE SERVICE,

Mar. 2018 .......................................................... 21

AN ALPHABETICAL ARRANGEMENT OF MR. PEEL’S

ACTS BY A BARRISTER 53 (2D ED. 1830) ............. 18

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

Criminal Prosecutions,

72 DUKE L.J. 599 (2022) ............................... 1, 14

Annual Statistical Report for the Texas Judiciary

FY 2023, https://www.txcourts.gov/media/

1459429/ar-statistical-fy23.pdf (2024) ............. 23

Other Authorities (Cont.)

Colleen P. Murphy, The Narrowing of the

Entitlement to Criminal Jury Trial,

WIS. L. REV. 133. (1997) ............................... 23, 24

Crime, NOAH WEBSTER, AMERICAN DICTIONARY OF

THE ENGLISH LANGUAGE (1828),

https://webstersdictionary1828.com

/Dictionary/crime) ............................................. 17

Hon. Antonin Scalia, Judicial Deference to

Administrative Interpretations of Law,

1989 DUKE L.J. 511........................................... 10

J.D. King and Andrea Roth, Anything but Petty,

INQUEST, Oct. 25, 2022,

https://inquest.org/anything-but-petty/ .......... 21

Jenny M. Roberts, Why Misdemeanors Matter:

Defining Effective Advocacy in the Lower

Criminal Courts, 45 U.C. DAVIS L. REV. 277

(2011) ................................................................. 21

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

24 U. PA. J. CONST. L. 817 (2022) ..................... 14

Kevin Davis, No Small Matter: Even a Wrongful

Misdemeanor Conviction Can Change Someone’s

Life Forever, ABA JOURNAL (Oct. 1, 2024) ....... 21

LEON RADZINOWICZ, A HISTORY OF ENGLISH

CRIMINAL LAW AND ITS ADMINISTRATION FROM

1750, (1956) ....................................................... 18

Marc Galanter, The Vanishing Trial: An

Examination of Trials and Related Matters in

Federal and State Courts, J. EMPIRICAL LEGAL

STUDS. 459 (2004) ............................................. 22

vii

Other Authorities (Cont.)

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) ........................... 9, 10

THE FEDERALIST NO. 83 (Alexander Hamilton)

(George W. Carey & James McClellan,

eds., 2001) ......................................................... 15

U.S. SENTENCING COMMISSION, SOURCEBOOK OF

FEDERAL SENTENCING STATISTICS, GUILTY PLEAS

AND TRIALS IN EACH CIRCUIT AND DISTRICT,

TABLE 11 (2023) ................................................ 23

United States Attorney’s Office, District of

Columbia, Capitol Breach Cases, Sentences

Imposed in Cases Arising Out of the Events of

January 6, 2021 (Jan 6. 2025), available at

https://www.justice.gov/usaodc/media/1331746/d

l?inline (last visited January 15, 2025) ......13, 14

United States Sentencing Commission, Guidelines

§4A1.1 (2024) .................................................... 14

INTEREST OF AMICUS CURIAE1

Andrea Roth and John D. King are law professors

with extensive experience in criminal law and

constitutional criminal procedure history.

Professor Roth is Professor of Law and Barry

Tarlow Chancellor’s Chair in Criminal Justice at the

University of California Berkeley School of Law, and

has published works concerning criminal procedure

and history, including the constitutional right to a

jury trial. One such work, The Lost Right to Jury

Trial in “All” Criminal Prosecutions, 72 DUKE L.J.

599 (2022), pertains directly to issues raised in the

Petition. Professor Roth is a member of the

American Law Institute, has been in academia for

more than 15 years and served nearly a decade as a

criminal defense attorney in the District of

Columbia.

Professor King is Professor of Law at Rutgers

Law School. He has published works in criminal law

and procedure and specifically about “petty

offenses.” One such work, Juries, Democracy, and

Petty Crime, 24 U. Pa. J. Const. L. 817 (2022),

pertains directly to issues raised in the Petition.

Prior to joining Rutgers Law School, Professor King

was the James P. Morefield Professor of Law at

Washington and Lee University School of Law,

where he taught for fifteen years. He has been in

1 Pursuant to Rule 37.6, amici certify no counsel for a party

has authored this brief in whole or in part and that no one other

than amici and their counsel have made any monetary

contribution to the preparation and submission of this brief.

Pursuant to Rule 37.2, amici certify that notice of their intent

to file this brief was given to the parties 10 days prior to the

filing deadline.

(1)

legal academia for more than 20 years and served

seven years as a criminal defense attorney in the

District of Columbia.

REASONS FOR GRANTING THE PETITION

This case asks whether convictions for federal

crimes that are prosecuted by the United States

Attorney’s Office and that include fines, potential

imprisonment, and that can be used at sentencing in

subsequent prosecutions, but that carry a maximum

jail sentence of six months or less, are exempt from

the Constitution’s guarantees of a jury trial in

criminal prosecutions.

Article III of the Constitution provides that “[t]he

Trial of all Crimes, except in Cases of Impeachment,

shall be by Jury” while the Sixth Amendment

guarantees a right to a jury trial “[i]n all criminal

prosecutions.”

Despite the Constitution’s clear text, a “petty

offense” exception emerged in dicta from this Court

in the nineteenth century that has since been used

to preclude jury trials in federal cases involving a

maximum sentence of imprisonment for six months

or less. E.g., Schick v. United States, 195 U.S. 65

(1904).

This Court’s prior decisions creating a “petty

offense” exception rest on shaky, and ultimately

incorrect, constitutional and historical bases that

have never received the full consideration and

briefing of this Court. Federal offenses that can

result in imprisonment for up to six months, and

that carry other penalties, are considered “crimes”

today. A correct read of history further shows that

offenses in this category would have also been

considered “crimes” at the founding and thus subject

to the jury-trial right twice enumerated in the

Constitution.

Certiorari is warranted on this significant issue

to permit this Court to correct the mistake of

excluding federal crimes with a sentence of

imprisonment for up to six months from the right to

a jury trial. The “right of trial by jury ranks very

high in our catalogue of constitutional safeguards,”

U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955),

and was in fact deemed an “inherent and invaluable

right” among the colonies before the Constitution

was adopted. Id. at 16 n.9. That inherent right has

erroneously been denied to many defendants

prosecuted for federal crimes. As this Court has

emphasized in a variety of contexts, inertia alone is

insufficient to justify adherence to a practice that

contradicts the text and history of the Constitution.

See, e.g., Ramos v. Louisiana, 590 U.S. 83 (2020);

Crawford v. Washington, 541 U.S. 36 (2004).

Certiorari is also warranted because the pettyoffense exception has profound implications for the

accused. Convictions for any federal offense,

including petty offenses, carry lifelong consequences

because the offenses are “crimes.” Indeed, as

Congress refines and expands federal criminal law

to address and concern conduct unknown at the

founding, adherence to the inherent right to a jury

trial is essential.

This Court should grant the writ, consider

fulsome briefing the petty-offense exception, and

hold the exception has no basis in the Constitution’s

text, history, or purpose. Though this result is

demanded regardless of practicalities, providing a

jury trial for federal “petty” offenses will not cause

major disruption to the administration of criminal

justice. Either way, certiorari is warranted.

I. UNDER THIS COURT’S PRECEDENTS,

CERTIORARI

APPROPRIATE

WHERE A PRACTICE DENYING A

FUNDAMENTAL

RIGHT

CONTRADICTS

CONSTITUTIONAL

TEXT AND HISTORY

Particularly in the criminal-law context, this

Court’s recent precedents demonstrate that

certiorari is warranted where current practice

denying a fundamental right cannot be reconciled

with, or at least appears to contradict, the text or

history of the Constitution. Put differently, many of

this Court’s recent decisions demonstrate that

departure from constitutional text and historical

practice is a compelling reason that warrants review

under Supreme Court Rule 10.

1. This Court’s recent decision in Ramos v.

Louisiana demonstrates this Court’s commitment to

using the Constitution’s text and history as a guide

in correcting precedent. 590 U.S. 83 (2020). Ramos

held the right to a jury trial within the Sixth

Amendment requires criminal verdicts to be

unanimous in light of the Constitution’s text and

historical context at founding. In reaching this

conclusion, the Ramos Court first looked to “[t]he

text and structure of the Constitution” to ascertain

“some meaning about the content and requirements

of a jury trial.” Id. at 89. After that, although the text

itself does not call for a unanimous verdict, Ramos

held “a jury must reach a unanimous verdict” given

the text’s historical context. Id. at 83.

The same approach invoked in Ramos is

warranted here. There, this Court pointed to

historical sources to inform the Court’s

interpretation of the right to a jury trial including

“the common law, state practices in the founding

era, [and] opinions and treatises.” Id. at 90. To that

effect, this Court looked to Blackstone, six early

State Constitutions and treatises from 1824 and

1833. Id. at 90-91.

This Court in Ramos had no trouble concluding

that stare decisis did not limit this Court from

correcting errors of constitutional interpretation. Id.

at 105 (explaining that “stare decisis isn’t supposed

to be the art of methodically ignoring what everyone

knows to be true”).

2. Beyond Ramos, this Court has likewise found

adherence to constitutional text and history

constitutes a compelling reason to grant certiorari.

For example, also construing the Sixth

Amendment, Crawford v. Washington, 541 U.S. 36

(2004), accepted review to determine whether

doctrine concerning the Confrontation Clause

needed to be revisited to make the law conform to

the text and history behind that clause. In so doing,

Crawford held the Confrontation Clause’s “text does

not alone resolve” its meaning, so this Court

additionally turned “to the historical background of

the Clause.” Id. at 42-43. Crawford also considered

Blackstone; sixteenth and seventeenth century

political trials; and text from state Declaration of

Rights because “[m]any declarations of rights

adopted around the time of the Revolution

guaranteed a right of confrontation.” Id. at 48.

These, among other historical examples, convinced

the Crawford Court to overrule precedent in favor of

an accurate historical understanding

Confrontation Clause. Id. at 43-44.

the

This Court has granted certiorari and issued

decisions that similarly turned on a correct

understanding of history when deciding whether

current federal law requires revision. See, e.g.,

United States v. Rahimi, 602 U.S. 680, 691 (2024)

(finding the scope of a right depends on the

“constitutional text and history” and that a

regulation is lawful where it fits within “historical

tradition”); Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215, 231 (2022) (citing Washington v.

Glucksberg, 521 U.S. 702, 721 (1997)) (finding the

Fourteenth Amendment’s Due Process Clause “has

been held to guarantee some rights that are not

mentioned in the Constitution, but any such right

must be ‘deeply rooted in this Nation’s history and

tradition’ and ‘implicit in the concept of ordered

liberty.’”); New York State Rifle & Pistol Ass’n, Inc.

v. Bruen, 597 U.S. 1, 25 (2022) (finding “reliance on

history to inform the meaning of constitutional

text—especially text meant to codify a pre-existing

right—is . . . more legitimate, and more

administrable.”).

In short, as in Crawford, after examining the

“historical underpinnings” of the relevant

constitutional

provisions,

Melendez-Diaz

Massachusetts, 557 U.S. 305, 309 (2009), this Court

should grant certiorari and provide that the text and

history of the Sixth Amendment require a jury trial

in all criminal cases, without a petty-offense

exception.

II. THERE IS NO BASIS IN THE

CONSTITUTION’S TEXT OR HISTORY

TO EXCLUDE PETTY OFFENSES FROM

THE RIGHT TO A JURY TRIAL

This Court should grant the petition because

current law disallowing a right to jury trial for petty

offenses has no basis in either the plain text or

history of the Constitution.

A. The Right to a Jury Trial In the

Constitution’s

Text

Includes

Exception for Petty Offenses

This Court has repeatedly emphasized its

commitment to adhering to constitutional text when

interpreting the meaning of a right. See Dobbs, 597

U.S. at 235 (2022) (“Constitutional analysis must

begin with the language of the instrument.’”

(quoting Gibbons v. Ogden, 22 U.S. 1, 186-89 (1824));

Rahimi, 602 U.S. at 715 (Kavanaugh, J., concurring)

(“The first and most important rule in constitutional

interpretation is to heed the text—that is, the actual

words of the Constitution—and to interpret that text

according to its ordinary meaning as originally

understood.”).

Here, Article III of the Constitution provides that

“[t]he Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury.” U.S. CONST. ART.

III, § 2. (emphasis added). By specifically exempting

impeachment proceedings from the otherwise

unqualified adjudication of “all crimes,” Article III

necessarily proscribes a right to a jury trial for the

trial of all other federal offenses. That is as basic as

the principle of expressio unius est exclusio alterius,

which dictates that the expression of one thing

implies the exclusion of others. In short, as has been

discussed in scholarship, “because the word ‘Crimes’

in Article III’s jury trial mandate is expressly

modified to exclude impeachment trials it

necessarily includes all other trials.” 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, 119 n.149 (2013).

The Sixth Amendment likewise provides that

“[i]n all criminal prosecutions,” the accused shall

enjoy the right to trial by jury. U.S. CONST., AMD. VI

(emphasis added). No text in the amendment alludes

to an abridgment of this right in certain types of

criminal prosecutions. The prerequisite for the right

to a jury is straightforward—a criminal prosecution.

To hold that Article III does not cover at

minimum all federal criminal offenses would result

in giving the same word in the Constitution two

different meanings in the very same provision. The

word “crime” appears in Article III’s venue clause,

which directly follows the jury-trial clause. U.S.

CONST. ART. III, § 2, cl.3. The Constitution reads:

“the Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury; and such Trial shall

be held in the State where the said Crimes shall

have been committed; but when not committed

within any State, the Trial shall be at such Place or

Places as the Congress may by Law have directed.”

The petty-offense exception rests upon the notion

that crimes (outside of impeachment), for the

purpose of the right to a jury, carry an alternate

meaning than a different clause in the very prior

provision, as there is no separate “petty offense”

exception for the venue requirement in this Article.

The notion that the word “crime” changes meaning

within the same clause is an absurd result that

should be resolved. Cf. Hon. Antonin Scalia, Judicial

Deference to Administrative Interpretations of Law,

1989 DUKE L.J. 511, 515 (“Surely one of the most

frequent justifications courts give for choosing a

particular construction is that the alternative

interpretation would produce ‘absurd’ results.”);

Siegel, supra, at 114-120 (“The absurdity that

follows from giving the word “crime” a narrow

meaning in the venue clause is so glaring that it

should settle that the word “crime” in the venue

clause carries the broad, all-encompassing

meaning.”).

The unequivocal meaning of these provisions is

confirmed by the consistent use of the word “crime”

elsewhere in the Constitution. Unlike the Sixth

Amendment, other references to crime or criminal

prosecutions

the

Constitution

include

modifications, none of which would exclude

relatively minor offenses from being considered

“crimes” altogether. For instance, Article II, Section

4 provides: “The President, Vice President and all

civil Officers of the United States, shall be removed

from Office on Impeachment for, and Conviction of,

Treason, Bribery, or other high Crimes and

Misdemeanors.” U.S. CONST. ART. II, § 4. Of course,

neither Article III nor the Sixth Amendment refer

solely to “high crimes” or exclude misdemeanors

from being federal offenses subject to criminal

prosecution. Likewise, the Fifth Amendment

provides that no “person shall be held to answer for

a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger.” U.S. CONST. AMD. V (emphasis

added). Again, neither Article III nor the Sixth

Amendment limit their reach to a certain class of

crimes or criminal prosecutions as the Fifth

Amendment does with “capital or otherwise

infamous” crimes.

As a final example, the Extradition Clause

requires extradition of “A Person charged in any

State with Treason, Felony, or other Crime, who

shall flee from Justice, and be found in another

State”. U.S. CONST. ART. IV, § 2, cl. 2. There is no

question that this provision would permit

extradition of a criminal defendant charged with a

petty offense to accommodate the venue clause in

Article III. Perhaps more important, Article IV

confirms that the Constitution, including with

Article III and the Sixth Amendment, address all

crimes subject to criminal prosecution, venue,

extradition, other than those specifically exempt (i.e.

for impeachment).

B. Federal Petty Offenses Are Crimes Now,

and the Jury Right’s History Does Not

Support the Claim That They Would

Have Been Denied a Jury at the

Founding

What are considered petty offenses are crimes

now and would have been considered crimes covered

by Article III and the Sixth Amendment at founding.

1. As currently defined and understood, federal

petty offenses are “crimes.” Federal criminal law

provides that petty offenses include Class B and

Class C misdemeanors. 18 U.S.C. § 19. These are

crimes for which the penalty of incarceration can be

up to six months or less but more than 30 days (for

Class B misdemeanors) or up to thirty days or less

but more than five days (Class C misdemeanors). 18

U.S.C. § 3559. Petty offenses can be subject to fines

and restitution pursuant to federal law, 18 U.S.C.

§ 3571, 18 U.S.C. § 3556, and the Federal Criminal

Rules of Procedure govern the adjudication of petty

offenses. FED. R. CRIM. P. 58. And, by definition, the

nature of these offenses is considered at sentencing.

18 U.S.C. § 3553.

Crimes for which a sentence may include

imprisonment of up to six months—Class B

misdemeanors—are enumerated in the criminal

part of the U.S. Code and are prosecuted by the

United States Attorney’s Office. They are crimes,

and a prosecutor’s pursuit of convictions in federal

court for these offenses are criminal prosecutions.

Federal petty offenses embrace issues as serious as

the security of federal property and trespass into

sensitive locations, as well as classic malum in se

offenses like theft and assault (under

Assimilative Crimes Act, 18 U.S.C. § 13).

the

For example, an individual who unlawfully

enters a military base—like the Pentagon—or who

reenters a military reservation, post, fort, or other

place after removal commits a Class B

misdemeanor. 18 U.S.C. § 1382. Committing acts of

violence, vandalism, property damage, or threats of

violence against animal enterprises is a Class B

misdemeanor. 18 U.S.C. § 43. Wearing a military,

naval, or police uniform of an official at peace with

the United States with “intent to deceive or mislead”

and trespassing on federal Bureau of Prisons land

are both Class B misdemeanors. 18 U.S.C. §§ 703,

1793. Attempting to tamper with or influence grand

or petit jurors of any court of the United States is

likewise a Class B misdemeanor. 18 U.S.C. § 1504.2

2 As a result of the U.S. Capitol breach on January 6, 2021,

though many were also charged with additional felony and

misdemeanor offenses, defendants were also charged and

convicted of “petty” federal crimes for their actions. See, e.g.,

United States v. Chrestman, 525 F. Supp. 3d 14, 18 (D.D.C.

2021); United States v. Stedman, No. CR 21-383, 2024 WL

3967389, at *1 (D.D.C. Aug. 28, 2024); United States v. Lyons,

No. CR 21-00079, 2024 WL 3898550, at *1 (D.D.C. Aug. 22,

2024). Hundreds of people were eventually charged for offenses

related to January 6 and “most of the charges have been for

petty offenses.” Alan Feuer, In Capitol Attack, Over 900 People

Have Been Criminally Charged, N.Y. Times (Dec. 19, 2022).

The Government also agreed to plea deals for Class B

misdemeanors in some early January 6 Capitol prosecutions.

See United States Attorney’s Office, District of Columbia,

Capitol Breach Cases, Sentences Imposed in Cases Arising Out

In addition, though the potential sentences are

relatively short for a single petty-offense conviction,

the consequences of being convicted continue after

the term of imprisonment. For example, petty

offenses constitute criminal history used at any

subsequent sentencing, which can add substantial

“points” to a federal defendant’s criminal sentence

pursuant to the Sentencing Guidelines. See UNITED

STATES SENTENCING COMMISS’N, GUIDELINES §4A1.1

(2024) (providing for 2 points for a prior sentence of

imprisonment for at least sixty days, and 1 point for

any prior sentence even if less than sixty days).

2. There is no historical basis for claiming that

the Founders intended to deny a jury for crimes with

a potential punishment of up to six months’

imprisonment, fines, and lifelong impacts as a

convicted criminal. Instead, petty offenses subject to

criminal punishment appear to have always been

understood, at the time of founding and now, to be

criminal prosecutions. See generally Andrea Roth,

The Lost Right to Jury Trial in “All” Criminal

Prosecutions, 72 DUKE L.J. 599, 637 (2022); John D.

King, Juries, Democracy, and Petty Crime, 24 U. PA.

J. CONST. L. 817, 821 (2022).

The Founders saw the criminal jury as a

protection against corruption. King, supra, at 821.

Historical sources make clear that, at the time of the

founding, the understanding of a “criminal

prosecution” and “crime” included petty crimes.

Among the colonies, a declaration of rights adopted

of the Events of January 6, 2021, 1 n.1 (Jan 6. 2025), available

https://www.justice.gov/usao-dc/media/1331746/dl?inline

(last visited January 15, 2025).

by nine colonies in 1765 declared the right to a trial

by jury as an “inherent and invaluable right” U.S. ex

rel. Toth v. Quarles, 350 U.S. 11, 16 n.9 (1955).

Indeed, the Declaration of Independence provides

that “one of the grievances of the colonies” was being

deprived the right to trial by jury. Id. As a result, the

need to protect the right to trial by jury was one of

the most uniformly agreed-on rights at the time of

founding. THE FEDERALIST NO. 83, at 432–33

(Alexander Hamilton) (George W. Carey & James

McClellan, eds., 2001) (“The friends and adversaries

of the [proposed constitution], if they agree in

nothing else, concur at least in the value they set

upon the trial by jury.”). This right was the only one

that every single state constitution drafted during

the Revolutionary period had in common, reflecting

consistency in the goal of protecting individual

liberty while engaging in democratic governance to

check the judiciary. See Duncan v. State of La., 391

U.S. 145, 153 (1968). The Founders would surely not

have agreed to abridge a right that was so

universally supported and implemented, in a federal

criminal prosecution carrying potential jail time.

Likewise, Blackstone’s treatment of petty

offenses confirms that, at common law, they were

considered crimes within the meaning of Article III

and that legal adjudication of such offenses were

“criminal prosecutions” within the meaning of the

Sixth Amendment. See Roth, supra, at 637.

Blackstone “dedicates an entire section in his

volume ‘public wrongs’ to summary convictions for

petty offenses” which he describes in “criminal

terms” distinct from civil violations of public law in

that they involve “conviction of offenders” and

accused parties who are “acquitted or condemned” in

summary proceedings.

Id. (further citation

omitted). Blackstone included “petty session[s]” in

his section on “Courts of Criminal Jurisdiction” and

“presentments of petty offences” in his section on

“Modes of Prosecution.” Id. Notably, Blackstone

indicates that what sets petty offenses apart from

other crimes is “not that they are not criminal, but

that they are ‘small misdemeanors.’” Id.3

Consistent with the Constitution’s broad reach

and rejection of an abridgment of the right to a trial

by jury, founding-era dictionaries made no room for

“petty offenses” to be considered non-crimes and

recognized

that

lower-level

offenses

(e.g.

misdemeanors) were still criminal prosecutions. For

example, Samuel Johnson’s 1755 English dictionary

defines “criminal” generally: “1. Faulty; contrary to

right; contrary to duty; contrary to law. . . .2. Guilty;

tainted with crime; not innocent. . . .3. Not civil; as a

criminal prosecution.” 1 SAMUEL JOHNSON, A

DICTIONARY OF THE ENGLISH LANGUAGE 515

(London, W. Strahan, 1755). According to this

definition, a criminal prosecution would encapsulate

anything that is not tried as a civil case.

Additionally, Johnson’s dictionary defines both

“felony” and “misdemeanor” as crimes, just of

differing degrees. A “felony” is “[a] crime denounced

capital by the law; an enormous crime.” Id at 797. A

“misdemeanor” is “an [o]ffense; ill behavior;

something less than an atrocious crime.” Id. at 1329.

Blackstone considered summary adjudications—those

without a jury trial—as deviations from the common law. See

4 WILLIAM BLACKSTONE, COMMENTARIES *278-84.

Merriam-Webster’s first comprehensive dictionary,

published in 1828, defines “criminal” equally

broadly: “relating to crimes; opposed to civil; as a

criminal code; criminal law; “ [a] person who has

committed an offense against public law” or “[m]ore

particularly, a person indicted or charged with a

public offense, and who is found guilty by verdict,

confession[,] or proof.” Criminal, NOAH WEBSTER,

AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE

(1828),

https://webstersdictionary1828.com/Dictionary/crim

Once again, the definition distinguishes public

criminal wrongs from private civil wrongs. Further

evidence of this is that the 1828 dictionary explicitly

differentiates “misdemeanors” from “trespassing” in

that “crimes and misdemeanors” are “punishable by

indictment, information, or public prosecution,”

whereas “trespasses or private injuries” are

generally dealt with in civil court. WEBSTER, supra,

at Crime.

Finally, founding-era treatises and cases

frequently refer to petty offenses as crimes. See

generally Roth, supra, at 641. Just as dictionary

definitions describe misdemeanors in criminal

terms, commentators on the adjudication of petty

offenses in England similarly described such

offenses in criminal terms. Id. As Professor Roth’s

research has shown, “several early and late

nineteenth century treatises also described petty

offenses as explicitly criminal.” Id. (citing, among

other authorities, 5 MATTHEW BACON, A NEW

ABRIDGMENT OF THE LAW 180 (Henry Gwyllim, Bird

Wilson & John Bouvier eds., 3d ed. 1852) (1768),

LEON RADZINOWICZ, A HISTORY OF ENGLISH

CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750,

at 586 n.70 (1956) (quoting AN ALPHABETICAL

ARRANGEMENT OF MR. PEEL’S ACTS BY A BARRISTER

53 (2D ED. 1830))).

In the end, “from the early days after the

Constitution’s ratification to the present day, both

the Supreme Court and Congress have routinely

acknowledged that nonjury-demandable petty

offenses are still crimes.” Id. In their courts, former

colonies-turned-states following ratification of the

Constitution likewise refer to petty offenses as

criminal proceedings. Id.

3. The contra-textual petty-offense exception

grew out of dicta from this Court’s early cases rather

than a fulsome consideration of constitutional text

or history, resulting in an erroneous doctrine. To

begin, Callan v. Wilson introduced the petty-offense

exception into constitutional law, by suggesting a

category of crimes for which a right to a jury trial did

not apply if they were deemed “petty.” 127 U.S. 540

(1888). The Callan Court did not reference the text

when claiming “that there is a class of petty or minor

offenses not usually embraced in public criminal

statutes, and not of the class or grade triable [at]

common law by a jury.” Id. at 555. The Callan Court

reasoned that the word “crime” has an “extended

sense” and a “limited sense,” and the limited sense

“embraces [only] offences of a serious or atrocious

character.” Id. at 549. And, for some reason still

unclear, Callan reasoned only the “limited sense” of

crimes is governed by the Constitutional right to a

jury trial in criminal cases. Without further

analysis, the Court assumed throughout the

remainder of the opinion that the word “crime” in

Article III was used in its “limited sense” and

therefore, the right to a jury trial was restricted to

serious criminal prosecutions.

The

Court

continued

along

these

underdeveloped, but path-dependent lines in Schick

v. United States, 195 U.S. 65, (1904). There, this

Court reiterated the lack of textual interpretation in

Callan, admitting that “the body of the Constitution

does not include a petty offense like the present.” It

must be read in the light of the common law.” Id. at

69.

But, as the foregoing shows, the Court at the time

appears to have misunderstood the common law. In

addition, the Court also misinterpreted Blackstone’s

comment that “misdemeanors” as a class of different

offenses by reasoning that this class of offenses were

not crimes. Id. at 69-70. The Court had an

opportunity to avoid this misstep at the time. Justice

Harlan states the following in his dissent:

I am not aware of, nor has there been cited, any

case in England in which, after Magna Charta,

and prior to the adoption of our Constitution, a

court, tribunal, officer, or commissioner has,

without a jury, even in the case of a petty offense,

determined the question of crime or no crime,

when the defendant pleaded not guilty, unless the

authority to do so was expressly conferred by an

act of Parliament.

Id. at 80-81 (Harlan, J., dissenting). Justice Harlan’s

comment was accurate then and has been further

elucidated by research since.

Nonetheless, despite being incomplete and

inaccurate, the reasoning underpinning Callan and

Schick has been repeated over the next few decades.

E.g., Frank v. United States, 395 U.S. 147, 150

(1969) (concluding that petitioner convicted of

criminal contempt was not entitled to a jury trial

because three-year probationary sentence was

“petty”); Baldwin v. New York, 399 U.S. 66, 73–74

(1970) (holding that offenses under six months are

petty and federal courts are thus justified in denying

defendants the right to a jury trial); Blanton v. City

of North Las Vegas, 489 U.S. 538, 543–45 (1989)

(holding that offenses with a maximum prison term

of six months or less are presumed “petty” under the

Sixth Amendment, granting a jury trial only if

additional penalties, combined with incarceration,

clearly indicate the offense is “serious”); Lewis v.

United States, 518 U.S. 322, 327–28 (1996) (similar).

However, as far as amici can tell, none of these

subsequent cases has fully considered—or been

presented with the opportunity to consider—

whether the right to a jury trial in Article III and the

Sixth Amendment should cover federal crimes that

may impose life-long consequences beyond sixmonths in prison in light of the text and history of

these provisions. This Court should grant certiorari

to answer that question and find that the

Constitution includes a right to a jury trial for all

criminal prosecutions, as the text indicates and

history confirms was contemplated at founding.

4. In addition to embracing what are well and

truly crimes, the right to a jury trial in petty offenses

is important. A single misdemeanor conviction often

carries lifelong impacts, including “collateral

consequences” that continue to impact someone’s life

for years to come even if the original sentence of

imprisonment was only a handful of weeks or

months. See, e.g., Jenny M. Roberts, Why

Misdemeanors Matter: Defining Effective Advocacy

in the Lower Criminal Courts, 45 U.C. DAVIS L. REV.

277, 296-97 (2011) (explaining that “collateral

consequences loom larger in misdemeanor cases,

because they often overshadow any potential direct

criminal sentence”); Kevin Davis, No Small Matter:

Even a Wrongful Misdemeanor Conviction Can

Change Someone’s Life Forever, ABA JOURNAL (Oct.

1, 2024). Regardless of whether they face any time

incarcerated, convicted people face serious, often

lifetime difficulties in employment, housing, and

family contexts. AMERICAN BAR ASSOCIATION,

COLLATERAL

CONSEQUENCES

CRIMINAL

CONVICTIONS: JUDICIAL BENCH BOOK (Mar. 2018).

Because criminal records are now widely available

electronically, employers, landlords, and others can

access them. Roberts, supra, at 277. These collateral

consequences disproportionately impact people of

color. AMERICAN BAR ASSOCIATION, supra, at 4.

Additionally, a misdemeanor conviction can

frequently serve as a gateway to future criminal

prosecutions, especially for people of color. J.D. King

and Andrea Roth, Anything but Petty, INQUEST, Oct.

25, 2022, https://inquest.org/anything-but-petty/.

III. PROVIDING A RIGHT TO A JURY

TRIAL FOR PETTY OFFENSES WILL

NOT UPEND FEDERAL CRIMINAL

ADJUDICATIONS

Certiorari is warranted here because the petty

offense exception appears to squarely contradict the

right to a jury trial embodied in Article III and the

Sixth Amendment. That result is warranted

regardless of practical consequence. Nonetheless, it

may be worth noting that available evidence shows

that eliminating the exception will not upend federal

prosecutions generally or for misdemeanors that

carry a maximum of six-months imprisonment.4

1. The vast majority of federal criminal

prosecutions are resolved through plea bargains,

resulting in very few actual jury trials. Despite the

number of federal criminal defendants more than

doubling between 1962 and 2002, federal criminal

trials dropped by 30%. Marc Galanter, The

Vanishing Trial: An Examination of Trials and

Related Matters in Federal and State Courts, J.

EMPIRICAL LEGAL STUDS. 459, 501 (2004). This Court

recognized over a decade ago that “[n]inety-seven

percent of federal convictions and ninety-four

percent of state convictions are the result of guilty

pleas.” Missouri v. Frye, 566 U.S. 134, 143 (2012).

Those numbers still hold today. According to the

U.S. Sentencing Commission, it remains the case

that over 97% of federal convictions are a result of a

guilty plea. U.S. SENTENCING COMMISSION,

4 The Petition does not concern or address the petty-offense

exception as applied to the States but concerns federal

prosecutions alone.

SOURCEBOOK OF FEDERAL SENTENCING STATISTICS,

GUILTY PLEAS AND TRIALS IN EACH CIRCUIT AND

DISTRICT, TABLE 11 (2023). Only 2.8% of cases across

all federal districts went to trial in 2023. Id. The

prevalence of plea agreements ensures that

restoring the jury trial right for petty offenses will

not dramatically increase the number of trials, since

most defendants in petty offense cases are also likely

to resolve their cases through negotiated pleas.

2. In addition, state practice shows that criminal

adjudication will not be upended by the elimination

of an exception to the right to a jury trial for petty

offenses. Most states already guarantee a jury trial,

either by statute or constitutional amendment,

beyond the federal constitutional minimum and

have been able to successfully manage their dockets

without a petty-offense exception. Twenty states

provide for a jury trial to essentially anyone who is

charged with a criminal offense. Colleen P. Murphy,

The Narrowing of the Entitlement to Criminal Jury

Trial, WIS. L. REV. 133. 172. (1997). Only ten states

do not protect the right to a jury trial beyond the

current federal minimum. Id.

Texas, for instance, guarantees the right to a jury

trial for all criminal prosecutions, including traffic

violations and other minor offenses. Despite being

the second most populous state in the Union, Texas

has managed its criminal dockets effectively. In

fiscal year 2023, Texas courts reported hundreds of

thousands of criminal filings, yet the system

accommodated defendants’ rights without undue

strain. Annual Statistical Report for the Texas

Judiciary

2023,

https://www.txcourts.gov/media/1459429/ar-

statistical-fy23.pdf (2024). Similarly, in Colorado “a

defendant possesses the right to a jury in municipal

court if charged with the commission of a petty

offense,” which excludes traffic offenses. Bradford v.

Longmont Municipal Court, 830 P.2d 1135, 1136

(Colo. App. 1992). Colorado’s judiciary is able to

manage their dockets. See Colleen P. Murphy, The

Narrowing of the Entitlement to Criminal Jury

Trial, WIS. L. REV. 133. 172 N.178 (1997) (collecting

citations to state constitutional provisions and other

authorities that provide for criminal jury trial rights

for all criminal offenses).

The right to a jury trial was intended to ensure

against prosecution that was unfair, an overreach,

or beyond what (very wide) prosecutorial discretion

would otherwise counsel. Extending this right, then,

may actually decrease the number of such

prosecutions. But, even assuming recognizing the

jury trial right for petty offenses could

hypothetically introduce additional costs in the very

few cases that a jury trial is actually sought, such

costs are vastly outweighed by the constitutional

and societal benefits of ensuring fair and consistent

application of criminal justice. The right to a jury

trial serves as a critical check on government power

via community participation in determining guilt or

innocence. Roth, supra, at 677. By reinforcing this

safeguard, the justice system gains legitimacy and

fairness, particularly for individuals accused of

offenses

that

carry

significant

collateral

consequences.

CONCLUSION

The Petition should be granted, and this Court

confirm federal criminal prosecutions to the text and

history of the Constitution by eliminating the pettyoffense exception to the right to a jury trial in