Petition for Writ of Certiorari — Satyasheel S. Korpe, Petitioner v. United States

No. ___________

.

__________________

SATYASHEEL S. KORPE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

___________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________________________________

PETITION FOR WRIT OF CERTIORARI

___________________________________________

Christopher Leibig

LAW OFFICE OF CHRISTOPHER LEIBIG

421 King St #505

Alexandria, VA 22314

(703) 683-4310

chris@chrisleibiglaw.com

Attorney for Petitioner

Fifteenth day of September, MMXXV

United States Commercial Printing Company • www.uscpc.us • (202) 866-8558

i

QUESTIONS PRESENTED

1.

Does the Sixth Amendment and Article

III, Section 2, Clause 3 of the Constitution,

guarantee a defendant charged with Driving While

Intoxicated the right to a jury trial even when he

faces only up to six months imprisonment?

2.

Does the Sixth Amendment and Article

III, Section 2, Clause 3 of the Constitution,

guarantee a defendant charged with Driving While

Intoxicated the right to a jury trial when he faces up

to six months imprisonment and standard

probationary conditions, which include loss of his

Second Amendment right for a year?

ii

RELATED PROCEEDINGS

United States District Court (E.D. Va.):

United States of America v. Satyasheel S. Korpe,

No. 1:24-po-000552-IDD (conviction entered,

jury trial and new trial denied) (Aug 13, 2024)

United States of America v. Satyasheel S. Korpe,

No.

1:24-cr-210

(magistrate

conviction

affirmed) (Jan. 13, 2025)

United States Court of Appeals (4th Cir.):

United States of America v. Satyasheel S. Korpe,

No. 25-4039 (affirming district court) (Jun. 17,

2025)

iii

TABLE OF CONTENTS

Questions Presented ................................................... i

Related Proceedings ................................................... ii

Table of Authorities....................................................vi

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Constitutional Provisions Involved ............................1

Introduction .................................................................2

Statement of the Case .................................................8

A.

Legal background ............................................8

B.

Factual and procedural background............. 11

Reasons for Granting the Petition ............................ 13

I.

The “Petty Offense” Exception to the Right to

a Jury Trial in All Criminal Prosecutions is

Arbitrarily Contrary to the Plain Language of

the Constitution ............................................ 13

II.

DWI is a Serious Offense .............................. 15

III. The Deprivation of Second Amendment

Rights Renders CFR Offenses Serious ......... 17

iv

IV. Overcriminalization Renders The Jury Trial

the Exception Rather than the Rule............. 18

Conclusion ................................................................. 20

Appendix

Appendix A

Opinion [affirmed district court], United

States Court of Appeals for the Fifth

Circuit, United States of America v.

Satyasheel S. Korpe,

No. 25-4039 (Jun. 17, 2025) .................... App-1

Appendix B

Order [magistrate judgment affirmed],

United States District Court for the

Eastern District of Virginia, United

States of America v. Satyasheel S. Korpe,

No. 1:24-cr-210 (Jan. 13, 2025) ............. App-8

Appendix C

Order [magistrate order denying new

trial], United States District Court for

the Eastern District of Virginia, United

States of America v. Satyasheel S. Korpe,

No. 1:24-po-00552-IDD (Aug. 13, 2024) . App-9

v

Appendix D

Judgment, United States District Court

for the Eastern District of Virginia,

United States of America v. Satyasheel

S. Korpe,

No. 1:24-po-00552-IDD

(Aug. 13, 2024) ....................................... App-11

vi

TABLE OF AUTHORITIES

Cases

Baldwin v. New York,

399 U.S. 66 (1970) .......................................... 2, 8, 14

Begay v. United States,

553 U.S. 137 (2008) ................................................ 16

Blakely v. Washington,

542 U.S. 296 (2004) .................................................. 8

Blanton v. City of N. Las Vegas,

489 U.S. 538 (1989) .......................................... 2, 4, 8

Crawford v. Washington,

541 U.S. 36 (2004) .................................................. 14

District of Columbia v. Colts,

282 U.S. 63 (1930) .............................................. 2, 13

District of Columbia v. Heller,

554 U.S. 570 (2008) .................................................. 5

Ehmer v. United States,

145 S. Ct. 574 (2024)................................................5

Erlinger v. United States,

144 S. Ct. 1840 (2024).............................................. 9

Georgia v. Brailsford,

3 U.S. 1 (1794).......................................................... 3

vii

Lesh v. United States,

No. 24-654, 2025 U.S. LEXIS 2374

(June 16, 2025)............................................. 4, 5, 6, 7

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ................................................ 14

Michigan Dept. of State Police v. Sitz,

496 U.S. 444 (1990) ................................................ 15

Ramos v. Louisiana,

590 U.S. 83 (2020) .................................................... 9

Schenck v. United States,

249 U.S. 47 (1919) .................................................. 14

SEC v. Jarkesy,

144 S. Ct. 2117 (2024).............................................. 9

Sparf v. United States,

156 U.S. 51 (1895) .................................................... 3

State v. Denelsbeck,

225 N.J. 103, (2016) ............................................... 15

Sullivan v. Louisiana,

508 U.S. 275 (1993) .................................................. 8

Tennessee v. John Thomas Scopes,

Case Number: 5232: Circuit Court of Rhea County,

Tennessee (1925)......................................................6

Touby v. United States,

500 U.S. 160 (1991) ................................................ 18

viii

United States v. Lesh,

107 F.4th 1239 (CA10 2024) ....................................4

United States v. Nachtigal,

507 U.S. 1 (1993).......................... 4, 5, 10, 15, 16, 17

Statutes

U.S.Const. Art. III, § 2 ........................................ 1, 4, 8

U.S.Const., Amdt. II ........................ 1, 5, 11, 13, 17, 20

U.S.Const., Amdt. VI ..................... 1, 4, 5, 8, 10, 14, 20

18 U.S.C. § 1865 ........................................................ 17

18 U.S.C. § 3563 ........................................................ 17

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

54 U.S.C. § 100751 .................................................... 17

36 C.F.R. 1.5 ................................................................ 1

36 C.F.R. 4.22 .............................................................. 1

36 C.F.R. 4.23 .............................................................. 1

43 C.F.R. 2932.57 ...................................................... 19

Fed. R. Crim. P. 12.3 ................................................... 7

Other Authorities

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN

AMERICA 261

ix

(Harvey C. Mansfield & Delba Winthrop trans.,

2000). ........................................................................2

Erik Luna, The Overcriminalization Phenomenon,

54 Am. U. L. Rev. 703, 716 (2004)......................... 19

Federal Land Ownership: Overview and Data

(Updated February 21, 2020)

Congressional Research Service............................ 16

GianCarlo Canaparo et al., Heritage Found., Count

the Code: Quantifying Federalization of Criminal

Statutes (2022) .........................................................6

John C. Coffee, Jr., Does “Unlawful” Mean

“Criminal”?: Reflections on the Disappearing

Tort/Crime Distinction in American Law,

71 B. U. L. Rev. 193, 216 (1991) .............................. 6

Larkin, Regulation, Prohibition, and

Overcriminalization: The Proper and Improper

Uses of the Criminal Law 42 Hofstra L. Rev. 745

(2014) ...................................................................... 18

Middlebrooks, Donald M. “Reviving Thomas

Jefferson’s Jury: Sparf and Hansen v. United

States Reconsidered.”

The American Journal of Legal History 46, no. 4

(2004): 353-421. doi:10.2307/3692404 .....................3

National Highway Traffic Safety Admin., Traffic

Safety Facts, 2006 Traffic Safety Annual

Assessment—Alcohol–Related Fatalities ............. 16

x

Susan R. Klein & Ingrid B. Grobey, Debunking

Claims of Over-Federalization of Criminal Law, 62

Emory L.J. 1, 28 (2012) ......................................... 18

The Federalist No. 83

(Alexander Hamilton) (Clinton Rossiter ed., 1961) 9

Thomas Jefferson, THE PAPERS OF THOMAS

JEFFERSON 269

(Julian Boyd ed., 1958) ............................................3

U. S. Department of Justice Bureau of Justice

Statistics Historical Corrections Statistics in the

United States, 1850- 1984 .......................................3

OPINIONS BELOW

The Fourth Circuit’s opinion is reproduced in

the Appendix at App.1-77. The Eastern District of

Virginia’s decisions are reproduced in the appendix

at App.8-201.

JURISDICTION

The Fourth Circuit’s opinion was entered on

June 17, 2025. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Article III, Section 2, Clause 3 of the

Constitution states: “The Trial of all Crimes, except

in Cases of Impeachment, shall be by Jury.”

The Sixth Amendment to the Constitution

states in relevant part: “In all criminal prosecutions,

the accused shall enjoy the right to a speedy and

public trial, by an impartial jury.”

The Second Amendment to the Constitution

States: “A well-regulated Militia, being necessary to

Petitioner was convicted of violations of Driving While

Intoxicated pursuant to 36 C.F.R. 4.23(a)(2), Park Closure

Violation Pursuant to 36 C.F.R. 1.5(f), and Unsafe Operation

pursuant to 36 C.F.R. 4.22(b)(1). All three charges were Class B

misdemeanors under the Code of Federal Regulations. In total,

he faced the potential for 18 months imprisonment. The Code of

Regulations contains 200 volumes and approximately 186,000

pages.

1

2

the security of a free State, the right of the people to

keep and bear Arms, shall not be infringed.

INTRODUCTION

“No one would seriously urge that a defendant

be denied a jury trial solely for the purpose of

making prosecution convenient to the Government.”

District of Columbia v. Colts, 282 U.S. 63, 70 (1930)

“Where the accused cannot possibly face more

than six months’ imprisonment, we have held that

these disadvantages, onerous though they may be,

may be outweighed by the benefits that result from

speedy and inexpensive nonjury adjudications.”

Baldwin v. New York, 399 U.S. 66, 73 (1970)

Some answers are presently unknowable.

Other answers are knowable but unknown because

no one has tried to know them. Other answers are

conceivably knowable but unknown because, despite

best efforts, they have been too difficult to discern.

This third category includes how many federal

jailable crimes exist for which persons in this

country are not entitled to a jury trial because of the

Blanton rule. Blanton v. City of N. Las Vegas,

489 U.S. 538 (1989)

According to the French philosopher of the

nineteenth century, Alexis de Tocqueville, the

American jury was “as direct and extreme a

consequence of the dogma of the sovereignty of the

people as universal suffrage.”2 To Thomas Jefferson,

it was “the only anchor ever yet imagined by man, by

2 ALEXIS

DE TOCQUEVILLE, DEMOCRACY IN AMERICA

261 (Harvey C. Mansfield & Delba Winthrop trans., 2000).

3

which a government can be held to the principles of

its constitution. 3

Indeed, many of the Framers,

including Jefferson, believed that jury nullification

represented a critical check against government

overreach. 4

Over a hundred years after the

ratification of the Constitution, this Court issued its’

ruling in Sparf v. United States, 156 U.S. 51 (1895),

changing the historically understood role of the jury

from a powerful policy-maker to “the most formalistic

of bodies” 5 , charged with deciding only factual

questions. By holding that federal courts would not

instruct juries that they could reject the law, that is,

acquit even upon sufficient proof of guilt of a law

they deemed unjust, the Court in Sparf removed a

powerful check against government overreach

possessed by the public at large. 6 Yet at the time

Sparf was decided, there were no federal prisons7, no

Code of Federal Regulations, and few federal

criminal laws. While Sparf limited the express

3 Thomas Jefferson, THE PAPERS OF THOMAS JEFFERSON

269 (Julian Boyd ed., 1958)

4 Middlebrooks, Donald M. “Reviving Thomas Jefferson’s Jury:

Sparf and Hansen v. United States Reconsidered.” The

American Journal of Legal History 46, no. 4 (2004): 353-421.

doi:10.2307/3692404.

5 See Arie M. Rubenstein, Note, Verdicts of Conscience:

Nullification and the Modem Jury Trial, 106 COLUM. L. REV.

959, 966 (2006)

6In Georgia v. Brailsford, 3 U.S. 1 (1794), Chief Justice John

Jay instructed the jury that “you have, nevertheless, a right…

to determine the law as well as the fact in controversy.” Id. at 4

(1794).

7 U. S. Department of Justice Bureau of Justice Statistics

Historical Corrections Statistics in the United States, 18501984 at 144.

4

power of juries to deciding only factual questions,

Jefferson’s anchor remained in that people enjoyed

the right to a jury trial if charged with a crime in

almost all cases. Times have changed.

In Europe, juries have never played the

system-defining role de Tocqueville described. The

International Criminal Court does not use them at

all. Now, because of the proliferation of petty

criminal regulations and the arbitrary limit placed

on the right to a jury trial, Americans, like their

European neighbors, can now be convicted of the

majority of crimes on the books without the right to a

jury.

The Fourth Circuit issued the unpublished

opinion from which the petitioner seeks certiorari the

day after this Court denied certiorari in Lesh v.

United States, No. 24-654, 2025 U.S. LEXIS 2374

(June 16, 2025); United States v. Lesh, 107 F.4th

1239 (CA10 2024). Lesh raised substantially the

same issue as that raised here, to wit, whether this

Court should revisit and overrule Blanton v. City of

N. Las Vegas, 489 U.S. 538, 540 (1989) and United

States v. Nachtigal, 507 U.S. 1, 5 (1993). In this case,

petitioner, like the petitioner in Lesh, was convicted

of multiple Class B misdemeanors under the Code of

Federal Regulations. Each petitioner was denied his

request for a jury trial based on the Blanton rule,

which holds that the Sixth Amendment and Article

III, Section 2, Clause 3 of the Constitution do not

entitle one to a jury trial for an offense for which the

punishment

does

not

exceed

six

months

imprisonment because such offenses are considered

“petty.” This petition raises the textual, historical,

and stare decisis arguments raised in Lesh. But

5

despite this similarity, this case is notably different

than Lesh and provides an ideal vehicle to revisit the

Blanton rule.

First, Unlike in Lesh, and Ehmer v. United

States, 145 S. Ct. 574 (2024) (cert. denied)8, and like

Blanton from 1989 and Nachtigal from 1993, the

petitioner in this case asked for a jury trial for

Driving While Intoxicated. Whatever the case in

1993, it strains credulity to suggest that Driving

While Intoxicated is not considered by society to be a

serious offense now. The DWI crime under the Code

of Federal Regulations perfectly demonstrates how

the wooden Blanton rule allows the Executive branch

to render serious offenses jury-proof.

Second, while the petitioner had no previous

record and his case involved no violence or firearms,

the Court ordered, as a part of its sentence, that he

“must not own, possess, or have access to a firearm,

ammunition, destructive device, or dangerous

weapon” for a year. (JA at 300, 393) Given this

Court’s ruling in District of Columbia v. Heller, 554

U.S. 570 (2008), the deprivation of Second

Amendment rights suffered by petty CFR offenders

alone should be enough to demonstrate that the

petitioner’s charged offenses were serious enough to

entitle him to a jury trial.

Third, the proliferation of federal crimes,

many of them hidden in the Code of Federal

8 While

this Court denied certiorari in Ehmer, regarding a

protestor who also deliberately violated little-known park

regulations, as to his right to a jury trial on a so-called “petty”

offense in 2024, Ehmer did not substantially brief the issue like

the petitioner in Lesh. See Ehmer v. United States, 145 S. Ct.

574 (2024).

6

Regulations and ever shielded from jury scrutiny,

represents a lurking danger to liberty. Somehow,

agency bureaucrats now write most of the criminal

laws. The absurd bulk of them could well evaporate

under the potential of jury scrutiny. Vast

overcriminalization, coupled with the Blanton rule,

leaves the jury trial right as the exception rather

than the rule for American criminal charges. Based

on known estimates, Congress enacts less than two

percent of federal crimes.9 Many if not most of the

Executive

Branch

regulations

are

petty

misdemeanors for which defendants are deprived of a

jury trial.

Finally, the petitioner sought a jury trial in

this case because he wanted a jury of his peers to

protect him from an unjust conviction. The petitioner

in the Lesh case deliberately violated obscure

national park regulations in an effort to become a

flashpoint for a national political issue. This is not to

say that the deliberate creation of test cases is not an

honorable and effective way to shine attention on an

issue. See Tennessee v. John Thomas Scopes, Case

Number: 5232: Circuit Court of Rhea County,

Tennessee (1925). And Lesh’s case did get attention.

His petition for writ of certiorari was supported by

9 The Heritage Foundation has estimated U.S. Code crimes at

5,199. GianCarlo Canaparo et al., Heritage Found., Count the

Code: Quantifying Federalization of Criminal Statutes (2022).

Other observers, looking beyond the U.S. code at regulatory

based offenses, have speculated there may be as many as

300,000 possible federal offenses or regulations susceptible to

criminal enforcement. John C. Coffee, Jr., Does “Unlawful”

Mean “Criminal”?: Reflections on the Disappearing Tort/Crime

Distinction in American Law, 71 B. U. L. Rev. 193, 216 (1991).

7

briefs amicus curiae from the Cato Institute, the

Southern Poverty Law Institute, the National

Association of Criminal Defense Lawyers, Andrea

Roth, and the Americans for Prosperity Foundation.

But Lesh’s cause was not the right to jury trial,

rather, the fight against overregulation of public

lands. See Petition for Certiorari, David Lesh v.

United States at 8. In contrast, petitioner in this

case wished to be tried by a jury for the very reason

the jury trial right exists. Instead of driving drunk

after an evening at a narrow federal park along the

river by the George Washington Memorial Parkway,

where people were known by police to sleep in their

cars, he settled into the back of his non-running car.

He started his car and began to drive it when he was

suddenly bathed in flashing lights at 1:30 a.m. and

ordered by police to leave the park through a blaring

loudspeaker. A jury, perhaps more than a judge (who

may not often sleep in parks and is likely treated

quite well by police) would understand why someone

could be too terrified of being shot to question loud

police orders in the middle of the night. A jury,

perhaps more than a judge, would understand how a

reasonable person could fear any course of action but

to over-follow such orders immediately.10

Petitioner would have been tried by a jury had

he been sleeping in his car several dozen yards away.

The Petitioner raised the “Public Authority” defense in

Magistrate Court. See Fed. R. Crim. P. 12.3. He sought to

argue that he should be entitled to acquittal because police

ordered him to drive. (JA at 16.)

10

8

STATEMENT OF THE CASE

A.

Legal background

The Constitution’s text provides for a trial by

jury of “all crimes,” art. III, § 2, and “[i]n all criminal

prosecutions,” amend. VI. Notwithstanding this clear

language, Supreme Court precedents limit the jury

trial right to “serious” infractions punishable by six

or more months of imprisonment. Blanton v. City of

North Las Vegas, Nev., 489 U.S. 538, 542 (1989). See

also Baldwin v. New York, 399 U.S. 66, 70-71, 74, n.6

(1970).

The Sixth Amendment “right is no mere

procedural formality, but a fundamental reservation

of power in our constitutional structure” and “meant

to ensure [the people’s] control in the judiciary.”

Blakely v. Washington, 542 U.S. 296, 305-06 (2004).

And the interlinked protection of the right to have

the government prove its case beyond a reasonable

doubt guards against error in a system that prizes

the presumption of innocence. See Sullivan v.

Louisiana, 508 U.S. 275, 278 (1993).

The artificial six-month line between what

does and does not constitute a “crime” within the

meaning of the Sixth Amendment disregards the

plain language of the Sixth Amendment and Article

III, section 2 and has always faced easy criticism.

Justice Black wrote separately in Baldwin to

disagree with the view that a defendant’s right to a

jury trial is determined by whether the offense

9

charged is a ‘petty’ or ‘serious’ one.” 399 U.S. 66 at 75

(Black, J., concurring):

This decision is reached by weighing the

advantages to

the

defendant

against

the

administrative inconvenience to the State inherent

in a jury trial and magically concluding that the

scale tips at six months’ imprisonment. Such

constitutional adjudication . . . amounts in every case

to little more than judicial mutilation of our written

Constitution. Those who wrote and adopted our

Constitution and Bill of Rights engaged in all the

balancing necessary. They decided that the value of a

jury trial far outweighed its costs for all crimes and

in all criminal prosecutions. Id.

In recent decisions, this Court has consistently

upheld the right to a jury trial in both criminal and

civil contexts, but have declined to reextend it to the

majority of federal crimes punishable by only six

months in jail. See, e.g., SEC v. Jarkesy, 144 S. Ct.

2117 (2024); Erlinger v. United States, 144 S. Ct.

1840 (2024); Ramos v. Louisiana, 590 U.S. 83 (2020).

Under the Blanton rule, control of the jury

right has been abdicated to the legislative branch (or,

as with this case, the Department of the Interior).

But such discretion “in regard to criminal causes is

abridged by the express injunction of trial by jury in

all such cases.” The Federalist No. 83 at 467

(Alexander Hamilton) (Clinton Rossiter ed., 1961)

(emphasis added). The Framers all agreed as to the

value of the criminal jury trial, and “regard[ed] it as

10

a valuable safeguard to liberty . . . [and] as the very

palladium of free government.”. Id

No court has suggested that prosecutions for

“petty” offenses were not considered “criminal

prosecutions” under common law. The Framers

chose to extend the jury right to all crimes by

enacting the plainly worded Sixth Amendment. The

pre-Constitution existence of crimes for which one

was not entitled to a jury trial harms, rather than

furthers, the argument that the Framers meant to

exclude those crimes from the Sixth Amendment’s

right to a jury trial.

In Nachtigal, the Court stated: The best

indicator of society’s views is the maximum penalty

set by the legislature. Ibid. While the word “penalty”

refers both to the term of imprisonment and other

statutory penalties, we stated that “[p]rimary

emphasis . . . must be placed on the maximum

authorized period of incarceration.” Id. at 542. We

therefore held that offenses for which the maximum

period of incarceration is six months or less are

presumptively “‘petty.’” A defendant can overcome

this presumption, and become entitled to a jury trial,

only by showing that the additional penalties, viewed

together with the maximum prison term, are so

severe that the legislature clearly determined that

the offense is a “serious” one. Id. at 543. (emphasis

added).

United States v. Nachtigal, 507 U.S. 1, 3-4

(1993).

11

Yet, Congress did not create the Class B

misdemeanor offenses in the Code of Federal

Regulations. The reasoning behind the “pettyoffense” exception falls to its knees when it comes to

the C.F.R. Petitioner submits that when punishment

for a crime includes the deprivation of Second

Amendment rights, it is not a petty crime.

Today, there are quite possibly more than a

hundred thousand federal crimes for which one can

be sentenced to jail without being entitled to a jury

trial. Regardless of the dueling arguments

concerning originalism and “petty” offenses, the

Framer’s clearly never envisioned an Executive

Branch which could or would create any, yet alone so

many, jury-proof criminal laws – including age-old

common law crimes like vandalism, and newer,

serious crimes like DWI.

B.

Factual and procedural background

On February 24, 2024, at approximately 1:30

A.M., two United States Park Police officers were

performing a closure of Gravelly Point Park, which

closed at 10 P.M. The officers made an

announcement over their loudspeaker for the people

in the park to leave. When one vehicle did not leave,

the officers again made an announcement that the

park

was

closed,

and

everyone

must

leave. Appellant, who was in the backseat of the

remaining vehicle, then got into the driver’s seat and

drove the vehicle away from the exit to the park.

When Appellant made a sudden movement with the

vehicle,

the

officers

initiated

a

traffic

12

stop. Appellant did not stop, but took a right turn,

jumping a curb and finally stopping on a grassy area.

When the officers searched the vehicle, they found a

bottle of alcohol, a shot glass, and an alcoholic

beverage

in

the

vehicle.

Later

that

morning, Korpe took two breath tests that measured

his blood alcohol level as .135% and .138%. App.2-3.

At trial, when asked about the occupants of

the Honda, Officer Stemple answered that he did not

know when the individuals arrived at the park, how

long they were planning to stay, or how long

Petitioner had been drinking alcohol (JA 224). He

agreed that it is true that sometimes individuals

come to parks to stay overnight (JA 225), and that

Petitioner took a long time to respond to the loud

entreaties to exit the park. Officer Stemple also

responded to Defense Counsel’s questions about the

PA announcement system—he said the system is

designed to be heard by people, that the Honda’s

windows were up at the time of the announcement,

and that the announcement system also includes a

light warning (JA 225-226). In response to several

questions by Defense Counsel, Officer Stemple noted

that the fastest that the Honda was going once

petitioner finally entered the front seat and started it

was 10 to 15 mph, that he did not know how familiar

the Honda’s occupants were with the park, and that

he did not see wildlife or pedestrians in the

surrounding area. Defense Counsel concluded his

cross-examination by once again asking Officer

Stemple whether he is “ordering” people to leave the

Park when making a PA announcement and whether

he knows that under the Code of Federal Regulations,

failure to obey such order is a misdemeanor. Officer

13

Stemple responded, “That’s correct.” (JA230) On

redirect examination, Officer Stemple first clarified

that “there’s only one” exit to Gravelly Point Park

(JA231). Officer Stemple further reiterated that

alcohol is not permitted in the park, as per the

signage located at the entrance of the park. The

Government then asked: “How many park

announcements approximately…did you give…?”

Officer Stemple replied, “There were a minimum of

two, but I don’t know exactly to what extent how

many were made.” When the Government asked

whether the black Honda driver responded to at least

one of the PA announcements, Officer Stemple

responded, “Finally they did, yes.”

Petitioner was convicted of DWI and two other

Class B misdemeanors under the Code of Federal

Regulations. He received a sentence of probation

with conditions, including the condition that he be

stripped of his Second Amendment rights for a year.

REASONS FOR GRANTING THE PETITION

I.

The “Petty Offense” Exception to the

Right to a Jury Trial in All Criminal

Prosecutions is Arbitrarily Contrary to

the Plain Language of the Constitution

In District of Columbia v. Colts, 282 U.S. 63

(1930), this Court overturned a lower court decision

denying petitioner the right to a jury for reckless

driving because “Whether a given offense is to be

classed as a crime, so as to require a jury trial, or as

a petty offense, triable summarily without a jury,

depends primarily upon the nature of the

14

offense. The

offense

here

charged

is

not

merely malum prohibitum, but in its very nature

is malum in se”. Id.

Forty years later, the Court decided to define

“petty offense” not by the of the nature of the crime,

the opprobrium faced by those convicted, or by any

reference to originalism, but by more “objective

indications of the seriousness with which society

regards the offense.” Baldwin v. New York, 399 U.S.

66, 68 (1970). The Court found this objective

measure of society’s views in the “severity of the

maximum authorized penalty.” Id.

The current standard also justifies watering

down a clear Constitutional mandate by balancing it

against prosecutorial expediency. While many

clearly-stated rights have limits, the difference

between six months and twelve months in jail hardly

resembles the difference between handing out

campaign pamphlets and “falsely shouting fire in a

theatre”, see Schenck v. United States, 249 U.S. 47

(1919), or between possessing a pistol and a bazooka.

Most people would prefer six months over twelve in

jail. But none view the two punishments as

fundamentally different. The effect on prosecutorial

expediency has not prevented this Court from

protecting more nuanced and less fundamental

rights, including others enumerated in the Sixth

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

36, 124 S. Ct. 1354 (2004); Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009)

15

II.

DWI is a Serious Offense

Sixteen years after Nachtigal, in Virginia v.

Harris, 558 U.S. 978, 979-80 (2009) this Court

explicitly recognized that DWI was a serious crime:

There is no question that drunk driving is

a serious and potentially deadly crime, as our cases

have repeatedly emphasized. See, e.g., Michigan Dept.

of State Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct.

2481, 110 L. Ed. 2d 412 (1990) (“No one can seriously

dispute the magnitude of the drunken driving

problem

or

the

States’

interest

in

eradicating [*980] it. Media reports of alcoholrelated death and mutilation on the Nation’s roads

are legion”). Id.

While Harris addressed DWI in a different

context, it spoke an indisputable truth about DWI.

No reasonable person in our society would argue that

DWI is a petty matter – not in its moral severity, in

its collateral consequences, or in the societal

opprobrium attached to it - unless he or she was in

the thick of advocating to uphold the Blanton rule.11

The Blanton rule (and, notably here, its 1993

application in Nachtigal) operates to deny

defendants charged with Driving While Intoxicated

on federal land12 (a total area more than six times

11 It appears that New Jersey is the only U.S. state which - like

the Code of Federal Regulations- denies all DWI defendants the

right to a jury trial. See State v. Denelsbeck, 225 N.J. 103, 126,

137 (2016)(‘Every other state appears to afford jury trials for at

least some DWI offenses.”) Due the Blanton rule, repeat DWI

offenders are also denied a jury trial in C.F.R. cases.

12 Today the federal government owns and manages roughly

640 million acres of land in the United States, or roughly 28%

16

the size of California) the right to a jury trial – even

in the face of undeniable national consensus that

D.W.I. is a serious crime. 13 The Nachtigal decision

improperly applied the Blanton rule to CFR offenses

by reasoning that the penalties imposed under the

CFR for a particular offense were decided by the

legislature. The penalty for DWI in national parks

was not decided by Congress. Congress merely

granted the Secretary of the Interior the right to

create criminal laws for parkland in general. The

of the 2.27 billion total land acres. See Federal Land

Ownership: Overview and Data (Updated February 21, 2020)

Congressional

Research

Service.

(https://sgp.fas.org/crs/misc/R42346.pdf).

13 In 1998 – five years after Nachtigal, Congress, in recognition

of the severity of driving while intoxicated, enacted 23 U.S.C. §

163, withholding funding from states which did not reduce their

blood alcohol a concentration levels triggering guilt of Driving

While Intoxicated.

“Drunk driving is an extremely dangerous crime. In the United

States in 2006, alcohol-related motor vehicle crashes claimed

the lives of more than 17,000 individuals and harmed untold

amounts of property. National Highway Traffic Safety Admin.,

Traffic Safety Facts, 2006 Traffic Safety Annual Assessment—

Alcohol–Related Fatalities.

Begay v. United States, 553 U.S. 137, 141-42 (2008)

“More than 10,000 people were killed in alcohol-impaired

driving crashes in 2012, accounting for 31% of all U.S. trafficrelated fatalities. In 2010, alcohol-impaired driving crashes

were associated with nearly one in five of the traffic-related

fatalities of children through age 14 years. ” – U.S. Department

of Transportation 2024 (See link: Impaired Driving Laws,

Enforcement and Prevention | US Department of

Transportation)

17

penalty for DWI on national parks was not chosen by

the Secretary either. Congress, without regard to

DWI offenses, limited the authority of the Secretary

of the Interior to maximum six-month penalties in

creating criminal offenses on national park land, and

the Secretary merely imposed the maximum penalty

allowed when criminalizing DWI on park lands.

Thus, the six-month maximum penalty for DWI

charges in national parks reflects the judgment of

exactly zero persons as to whether DWI is a serious

crime. See 18 U.S.C. § 1865; 54 U.S.C. § 100751.

III.

The Deprivation of Second Amendment

Rights Renders CFR Offenses Serious

The deprivation of Second Amendment rights

as a punishment render Class B misdemeanors

serious even given the six-month cap on

imprisonment and even if they carry no public

opprobrium or criminal stigma (as many do not). It

certainly appears unlikely that Congress would write

a law depriving those convicted of camping without a

permit of their gun rights, yet the Blanton rule

allows such to occur without the right to a jury trial.

See 36 CFR § 2.10 (Failing to obtain a required

permit or violating its terms and conditions is

prohibited.) The Court in Nachtigal, in referencing

which probationary conditions could have been

imposed on petitioner for his conviction for Driving

While Intoxicated, does not mention a deprivation of

the petitioner’s gun rights. In the present case, even

though loss of gun rights is a discretionary condition

of probation pursuant to 18 U.S.C. § 3563, the

Alexandria Division of the Eastern District of

18

Virginia nevertheless deprives CFR defendants of

gun rights as a “standard” condition, thus impinging

upon the right to bear arms for persons convicted of

any one of the many thousands of obscure CFR

regulations in existence.(JA at 300). Petitioner has

now been deprived of his gun rights for almost a year

for committing a nonviolent, so-called “petty” offense.

This deprivation, even if only temporary, renders

DWI under the CFR serious.

IV.

Overcriminalization Renders The Jury

Trial the Exception Rather than the Rule

Scholars cannot quantify the number of petty

crimes on the books. See Susan R. Klein & Ingrid B.

Grobey, Debunking Claims of Over-Federalization of

Criminal Law, 62 Emory L.J. 1, 28 (2012) (“An

enormous number of new regulatory crimes were

enacted in the period 1980-2011, so many that we

were unable to count even a fraction of them . . ..”).

See also Touby v. United States, 500 U.S. 160, 165-66

(1991) (admitting “[o]ur cases are not entirely clear

as to whether more specific guidance is in fact

required” when Congress is delegating authority “to

promulgate regulations that contemplate criminal

sanctions”); Overcriminalization has been described

as “the overuse and misuse of the criminal law to

punish conduct traditionally deemed morally

blameless.” Larkin, Regulation, Prohibition, and

Overcriminalization: The Proper and Improper Uses

of the Criminal Law 42 Hofstra L. Rev. 745 (2014).

Another commentator describes overcriminalization

as including: “(1) untenable offenses; (2) superfluous

statutes; (3) doctrines that overextend culpability; (4)

19

crimes without jurisdictional authority; (5) grossly

disproportionate punishments; and (6) excessive or

pretextual enforcement of petty violations.” Erik

Luna, The Overcriminalization Phenomenon, 54 Am.

U. L. Rev. 703, 716 (2004).

One example, 43 C.F.R. 2932.57, regarding

airport maintenance, establishes seven crimes, the

second or subsequent offense of which can carry

imprisonment, but no jury trial.14 All one hundred

forty-four crimes15 prosecutable under Title 36, Part

2 (Public Use) of the Code of Federal Regulations

concerning national parks are jailable “petty”

offenses under Blanton. These crimes include serious

crimes such as fighting, possession of explosives,

hunting endangered species, possession of heroin or

14 1) Fail to obtain a Special Recreation Permit and pay the fees

required by this subpart; (2) Violate the stipulations or

conditions of a permit issued under this subpart; (3) Knowingly

participate in an event or activity subject to the permit

requirements of this subpart if BLM has not issued a permit; (4)

Fail to post a copy of any commercial or competitive permit

where all participants may read it; (5) Fail to show a copy of

your Special Recreation Permit upon request by either a BLM

employee or a participant in your activity; (6) Obstruct or

impede pedestrians or vehicles, or harass visitors or other

persons with physical contact while engaged in activities

covered under a permit or other authorization; or (7) Refuse to

leave or disperse, when directed to do so by a BLM law

enforcement officer or State or local law enforcement officer,

whether you have a required Special Recreation Permit or not.

The “144” figure results from a conservative attempt to count

jailable offenses contained in one small section of the CFR.

Many CFR sections contain catch-all provisions making all

described prohibitions Class A or B misdemeanors.

20

cocaine, and vandalism. Title 36, Part 4 (Vehicles

and Traffic Safety) contains at least more forty

jailable crimes, including Driving While Intoxicated,

for which the Blanton rule forbids a jury trial.

Perhaps more notably, many CFR criminal

regulations provide for jail sentences for non-crimes

like speeding, or picnicking contrary to posted

regulations, again without a jury trial. As dubious as

it seems that the Framer’s intended the right a jury

trial to be defined by an arbitrary yardstick like six

months

potential

imprisonment,

the

Sixth

Amendment never could have contemplated that

most crimes would be jury-proof.

CONCLUSION

The Blanton rule violates the letter and spirit

of the Constitution. When a crime includes

deprivation of Second Amendment rights, the rule

strains constitutional and logical credulity. This

immense, clandestine group of jailable regulations

could leap into action at any time at the whim of

executive branch actors - local or national - with

suspect motives. Yet this petty-offense regulatory

scheme may simply never be abolished through the

political process. This Court could substantially

protect us all by honoring the plain language of the

Constitution as it concerns the right to a jury trial in

criminal prosecutions. Given its legal history and

simplicity, further development of this issue is

unnecessary.

For the foregoing reasons, petitioner urges

this Court to grant a writ of certiorari so that he may

21

fully brief and argue his request to be tried by a jury

of his peers.

Respectfully submitted,

Christopher Leibig

Counsel of Record for

Satyasheel S. Korpe

LAW OFFICE OF

CHRISTOPHER LEIBIG

421 King Street #505

Alexandria, VA 22314

(703) 683-4310 (o)

(202) 320-8850 (c)

Chris@Chrisleibiglaw.com

Dated: September 15, 2025