Petition for Writ of Certiorari — United States v. Nachtigal

92-609 FILED

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Iu the Supreme Court of the United States

OCTOBER TERM, 1992

UNITED STATES OF AMERICA, PETITIONER

Vv.

JERRY J. NACHTIGAL

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

VICK! S. MARANI

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

casas

—_————— Se

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BEST AVAILABLE COPY!

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QUESTION PRESENTED

Whether Art. III, § 2, Cl. 3 of the Constitution or

the Jury Trial Clause of the Sixth Amendment re-

quires a trial by jury for the offense of driving under

the influence of alcohol, where the maximum au-

thorized penalty is six months’ imprisonment and a

$5,000 fine.

(1)

TABLE OF CONTENTS

Page

Opinions below SPE LL ES 1

Jurisdiction Laos iecceacialianant , — 1

Constitutional, statutory, and seaniahers | provisions

involved . . a 2

Statement shades LS eee 2

Reasons for granting the petition 6

Conclusion . Niciaciieeteds 17

Appendix A jadianitnies als la

Appendix B j . ; ; . 5a

Appendix C Si ne a

Appendix D Caen 2la

Appendix E AES RR eee 22a

TABLE OF AUTHORITIES

Cases:

Baldwin Vv. New York, 399 U.S. 66 (1970) ....B, 4, 12

Blanton v. City of North Las Vegas, 489 U.S. 538

(1989) ............ a ak At SD war passim

Callan Vv. Wilson, 127 U. S. 540 (1888) 3

Commissioner V. McCoy, 484 U.S. 3 (1987) ses 17

District of Columbia v. Clawans, 300 U.S. 617

EEE IESE ONS 3

District of Columbia v. Colts, 282 U.S. 63 (1930) 3,11

Dunean V. Louisiana, 391 U.S. 145 (1968) 3, 4, 12

Frank v. United States, 395 U.S. 147 (1969) 3, 10,12

Green V. Bock Laundry Machine Co., 490 U.S. 504

(1989) een 17

Muniz Vv. Hoffman, 422 US. 454 (1975) - | 7

Richter v. Fairbanks, 903 F.2d 1202 (8th Cir.

1990) S Spe ee 14

Rose v. Clark, 478 US. 570° (1986) . sas 17

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

Spectrum Sports, Ine. Vv. MeQuillan, cert. granted,

No. 91-10 (to be argued Nov. 10, 1992) | 17

(111)

18 U.S.C. 3571 (e) | .-...y 13, 23a

IV Vv

Cases—Continued: Page

State v. Harrison, 792 P.2d 779 (Ariz. Ct. App. Statutes and regulations—Continued : Page

1990) vessseeccnnesseenee sosccsssscetseensnsanseeee WM 18 U.S.C. 3571(7) SOR, ke, P

Stevenson V. District of Columbia, 562 A.2d 622 18 U.S.C. 3581(b) (7) oc 2

(D.C. 1989) , 14 16 C.F.R. 4.6 (1980) See sed 11

United States v. Bencheck, 926 F.2d 1512 (10th 36 C.F.R. (1991) :

Cir. 1991) 7 10-11, 13, 16 Section 1.3(9) 2 ccccunsnrmernene.., 9, 16, 288

United, States v. Craner, 652 F.2d 23 (9th Cir. ne 9

te PS pe 4,5, 11, 12 Section eae 9

United States v. Garner, 874 F.2d 1510 (11th Cir. ID lite 16

V9BD) nnnnnnnnn- a eeneneneeeeecnnecnennee Scie Guten cea 18 Section 2.15 (a) __ ROPE ene reer > 16

United States v. Harper, 946 F.2d 1373 (8th Cir. cee TTA TTS . 16

1991), cert. denied, 112 S. Ct. 1506 (1992) 12-13 Section 4.23(a)(1) 0 12, 7, 11, 15, 23a

United States y. LaValley, 957 F.2d 1309 (6th Section sake igs 2

1992) ieee ser sinlasetinnesseniisiesitmadinl 13 Section 7.96(g) (5) (x)(B)(2).. 13

United States Vv. Musser, 873 F.2d 1513, aff’d on Letnany cg, ee aT agate 12

denial of reh’g, 883 F.2d 84 (D.C. Cir.), cert. Section 261.58(a) 13

denied, 493 U.S. 983 (1989) ss ——s 10, 13 nero emaran. i 12

United States v. Paternostro, 966 F.2d 907 (5th

te ee caeenenre, Miscellaneous:

United States v. Spivey, 781 F. Supp. 676 (D. Administrative Office of the United States Courts:

Haw. 1991) 2 “ 1986 Ann. Rep. of the Director ST 15

Constitution, statutes, and regulations: 1991 Ann. Rep. of the Director SR on 15

U.S. Const. : Frankfurter & Corcoran, Petty Federal Offenses

Art. ITI,$2,C1.3 5 mare 2, 3, 6, 22a and the Constitutional Guaranty of Trial by

Amend. VI (Jury Trial Clause) 2, 3, 6, 22a Jury, 39 Harv. L. Rev. 917 (1926). is 3

Assimilative Crimes Act, 18 U.S.C. 13 seceancaant 13

16 U.S.C. 3 aaa a 2, 5, 9, 16, 22a

18 U.S.C. 1 (Supp. IV 1986) -

18 U.S.C. 19 a PPh Aah E 8

18 U.S.C. 1382. ioe 13

18 U.S.C. 3559 (a) (1) IE me kt 2

18 U.S.C. 3561 (a) (3) . 2,6

18 U.S.C. 3561 (b) (2) | 2

18 U.S.C. 3563 (b) (10) : 8

18 U.S.C. 3563 (b) (11) ROSE. Bee .

18 U.S.C. 3563 (b) (12) 8

18 U.S.C. 3571 (b) (6) 2, 8, 16, 22a-23a

18 U.S.C. 3571 (b) (7) 16

Iu the Supreme Court of the United States

OCTOBER TERM, 1992

No.

UNITED STATES OF AMERICA, PETITIONER

Uv.

JERRY J. NACHTIGAL

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court

of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals, App., infra,

la-4a, is unpublished, but the judgment is noted at

953 F.2d 1389 (Table). The opinions of the magis-

trate, App., infra, 5a-9a, and the district court, App.,

infra, 10a-20a, are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on January 27, 1992. A petition for rehearing was

denied on July 10, 1992. App., infra, 2la. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

Article III, § 2, Cl. 3, and the Sixth Amendment

of the Constitution; 16 U.S.C. 3; 18 U.S.C. 3571

(b)(6) and (e); and 36 C.F.R. 1.8(a) and 4.23

(a)(1) are reprinted in App., infra, 22a-23a.

STATEMENT

1. On February 15, 1990, respondent was charged

by information in the United States District Court

for the Eastern District of California with operating

a motor vehicle in Yosemite National Park while un-

der the influence of alcohol, in violation of 36 C.F.R.

4.23(a)(1) and 36 C.F.R. 4.23(a) (2). App., infra,

2a, 6a, 10a-lla & n.1. Those offenses are Class B

misdemeanors, see 18 U.S.C. 3559(a) (1); they carry

a maximum penalty of six months’ imprisonment, 36

C.F.R. 1.3(a); 18 U.S.C. 3581(b) (7), and a fine of

$5,000, 18 U.S.C. 3571(b) (6) and (e). As an alter-

native to a term of imprisonment, a term of proba-

tion of not more than five years may be imposed. 18

U.S.C. 3561(a) (3) and (b) (2).

2. Respondent moved for a jury trial. A magis-

trate denied the motion, reasoning that, under Blan-

ton v. City of North Las Vegas, 489 U.S. 538 (1989),

the federal driving-under-the-influence (DUI) offense

is a “petty offense’—i.e., one for which the Sixth

Amendment does not require a jury trial. App., infra,

6a. In Blanton, this Court held that an offense carry-

ing a maximum prison term of six months or less is

presumed to be a petty offense, and that a defendant

can overcome the presumption “only if he can demon-

strate that any additional statutory penalties, viewed

in conjunction with the maximum authorized period

3

of incarceration, are so severe that they clearly reflect

a legislative determination that the offense in ques-

tion is a ‘serious’ one.” 489 U.S. at 543.' The mae-

istrate rejected respondent’s contention that he faced

additional penalties sufficient to elevate his DUI

' This Court’s conclusion in Blanton that Art. IT], § 2, Cl.

3 and the Sixth Amendment should not be read literally, so

as to require a jury trial in every “criminal prosecution,” did

not state a novel rule of law. The English common law per-

mitted a wide range of petty or minor offenses to be resolved

summarily before justices of the peace without a jury, and

that practice was generally fol'!wed in the American colonies.

Frankfurter & Corcoran, Petty Federal Offenses and the Con-

stitutioval Guaranty of Trial by Jury, 39 Harv. L. Rev. 917

(1926). In deciding whether a jury trial was constitutionally

required, this Court originally looked to the nature and treat-

ment of the offense at common law and the gravity of the

conduct involved, See Callan v. Wilson, 127 U.S. 540 (1888) :

Schick Vv. United States, 195 US. 65 (1904); District of

Columba Vv. Colts, 282 U.S. 63 (1930). In its more recent

cases, the Court has sought objective criteria for deciding

whether a particular offense is “petty” or “serious” for jury

trial purposes. In so doing, the Court has focused on the

maximum penaliy authorized by law, and has determined

that six months’ confinement is the dividing line between

“petty” and “serious” offenses. See District of Columbia vy.

Clawans, 300 U.S. 617 (1937); Dunean vy. Louisiana, 391

U.S. 145, 159-162 (1968); Baldwin v. New York, 399 U.S. 66,

68-74 (1970) (plurality opinion) ; compare Frank v. United

States, 395 U.S. 147, 149 (1969) (“In ordinary criminal

prosecutions, the severity of the penalty authorized, not the

penalty actually imposed, is the relevant criterion”: in con-

tempt cases, however, where there is no statutory maximum

sentence, the guide is the penalty actually imposed.).

Blanton, this Court’s most recent treatment of the issue,

adopted the presumption stated in the text.

4

charge from a petty to a serious offense. App., infra,

at Ta-9a.

Respondent was tried by the magistrate and was

convicted of operating a motor vehicle while under

the influence of alcohol; he was acquitted of the other

charge. He was fined $750 and placed on unsuper-

vised probation for one year. Gov't C.A. Br. 4.

3. Resnondent appealed tc the district court, which

reversed. App., infra, 10a-2Ca. The court explained

that. in its view, “Blanton represents 2 marked de-

parture from prior Supreme Court precedents” such

as Duncan vy. Louisiana, 391 U.S. 145 (1968), and

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

infra, 15a-i6a: see id. at 16a-17a. Instead of looking

to Blanton, the district court relied on United Stotes

v. Crancr, 652 F.2d 23 (1981), a Ninth Cireu't deci-

sion predating Blanton. In Craner, the Ninth Circuit

held that 2 jury trial was required for a feder:! DUI

2 Respondent argued that interest might be assessed on the

£5,000 fine, that restitution might be ordered as a condition

of probation, and that up to 4, years of “incarceration” in a

federal community treatment center might be ordered as fur-

ther conditions of probation. The magistrate ruled that nei-

ther interest nor restitution would indicate a determination

by Congress that the offense was “serious,” since Congress

had legislated such penalties for crimes that it had designated

as petty offenses. App., ‘fra, 8a. The magistrate char-

acterized respondent's allegation that he faced an additional

“inearceration” penalty as “both incorrect and disingenuous, ”

noting that respondent had “eitef{d] no authority for the

proposition that custodial alcohol or drug treatment may be

imposed as a condition of probation for a time period in

excess of the [six] month maximum period of incarceration,”

and that “a defendant would be entitled to time credits for

any such ordered treatment which significantly limited [his]

freedom and could be properly termed incarceration.” /d. at

9a.

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5

charge carrying a maximum penalty of six months’

confinement, a $590 fine, payment of costs, and the

possible loss of one’s driver's license. App., mfra.

17a, 20a. Although the district court acknowledgec

that Blanton was “at variance” with Craner, id.

at 17a. the court concluded that it was obliged to

follow Craner, since this Court in Blanton “did not

expressly overrule” Crener. Id, at 20a.

!_ The court of appeals affirmed. App., infra, la-

ix. The panel regarded Blanton as “inapposite,”” i.

at ta, and held that “Craner remains the law of this

Circuit.” ibid., “and controls this case,” id. at 5a. The

panel purported to distinguish Blanton on the ground

that Blanton involved a legislative determination that

the offense was not a serious one, while in this case,

as in Craner, “ft}here is no controlling legislative

determination,” id. at 3a-4a, because “the six month

prisen term is dictated by the Secretary of the In-

terior, not Congress,” id. at da. The court also consid-

ered it significant that the Secretary, having been

vested by Congress under 16 U.S.C. 3 with power to

fix six months as the maximum sentence for any

offense, chose for DUI “the harshest penalty avail-

able to him.” App., infra, 4a. Finally, the panel ob-

served that, “to the extent that legislative determina-

tions are relevant, Craper points out that the legisla-

tures of seven states in our Circuit have determine:

that drunk driving is a ‘serious’ offense to which the

right to a jury trial attaches.” Jhid. Accordingly, the

court held that respondent was entitled to a trial by

jury. [bids |

’ The court noted that the DUI charge exposed defendant

not only to a maximum confinement term of six months and

a maximum fine of $5,000, but also to “a maximum proba-

6

REASONS FOR GRANTING THE PETITION

The decision below is irreconcilable with this

Court’s unanimous 1989 decision in Blanton v. City

of North Las Vegas, 489 U.S. 538. There, this Court

held that an offense carrying a maximum prison term

of six months or less is presumed to be a “petty of-

fense” and hence not subject to the jury trial require-

ment of Art. III, $2, Cl. 3 and the Sixth Amend-

ment. 489 U.S. at 543. A defendant can overcome

that presumption, the Court ruled, ‘only if he can

demonstrate that any additional statutory penalties,

viewed in conjunction with the maximum authorize:

period of incarceration, are so severe that they clearly

reflect a legislative determination that the oifense in

question is a ‘serious’ one.” Jhid.!| The Court fur-

ther strated that in discerning a legislature’s intent

tionary period of five vears during which [he] is subject to

a host of possible restrictions and conditions, 18 U.S.C.

$$ 3561 (b) (2), 3563(a) (1), (b).” App., infra, 2a. The panel

did not cite or discuss 18 U.S.C. 3561 (a) (3), which prohibits

imposition of a term of probation in any case in which the

defendant “is sentenced at the same time to a term of im-

prisonment for the same or a different offense.” In anv

event, the court did not purport to distinguish Blanton on

the ground that respondent was exposed to more onerous

penalties than those at issue in that case.

4This Court found that the presumption had not been

overcome with respect to the DUI statute at issue in Blanton,

even ‘hough, in addition to a maximum authorized prison

term of six months (with an alternative penalty of 48 hours

of community service to be performed while the DUI offender

was identifiably dressed as such), the statute prescribed »

fine of up to $1,000, automatic suspension of the offender’s

driver’s license for 99 days, and attendance at an alcoho!

abuse education course at the offender’s expense. 489 U.S. at

543-545.

7

under that standard, the intent of other legislatures

with respect to similar offenses is irrelevant. /d. at

o4o0n.11.

In this case, the Ninth Circuit disregarded both the

result and the :easoning of Blanton. The Ninth Cir-

cuit embraced an approach that this Court rejected

in Blanton and that conflicts with the analysis fol-

lowed by every other court of appeals to consider this

issue since Lbianton was decided. In light of this dis-

agreement over a question that arises with consider-

able frequency, review by this Court is warranted.

Because the Ninth Circuit’s decision is so clearly

wrong, the Court may wish to consider summary

reversal.

1. The Ninth Circuit did not purport to distin-

guish Blanton on the ground that the authorized

penalties there were less onerous than those set for

violations of 36 C.F.R. 4.23(a) (1); indeed, no such

distinction could be drawn. The maximum authorized

term of imprisonment both in Blanion and here was

six months. The maximum fine for the federal DUI

offense is 54,000 greater than the authorized fine in

Blanton,’ but that difference is not so significant as

to render the federal DUI offense “serious” and

thereby to require a jury trial. See United States v.

Paternostro, 966 F.2d 907, 913 (Sth Cir. 1992).

Incarceration and fines are “intrinsically different,”

as the Court explained in Blanton, and a fine “cannot

approximate in severity the loss of liberty that a

prison term entails.” 489 U.S. at 542 (quoting Muniz

v. Hoffman, 422 U.S. 454, 477 (1975)). Indeed,

* The maximum fine for the federal DUI offense is $5,000,

while the maximum fine for the DUI offense in Blanton was

$1,000.

8

Blanton strongly suggested that the $5,000 fine au-

thorized by Congress fur petty offenses would not

render an offense “serious” for jury trial purposes.

489 U.S. at 544-545; see 18 U.S.C. 19 (defining a

“petty offense” in the case of an individual defendant

as one for which the maximum fine is no greater than

$5,000 (the amount set for petty offenses in 18

U.S.C. 3571(b) (6) (Class B and C misdemeanors)

and 3571(7) (infractions) ); 18 U.S.C. 1 (Supp. IV

1986) (same), cited at Blanton, 489 U.S. at 544-545."

Instead of distinguishing Bblenton, the Ninth Cir-

cuit simply declared that Blanton was ‘“inapposite” to

this case, App., infra, 4a, for two reasons: In the

court’s view, the legislature had not set the maximum

penalty for violations of the federal regulation, and

most of the States that make up the Ninth Circuit

deem drunk driving sufficiently serious to warrant a

“Nor does the alternative possible penalty of probation

render the federal DUI offense a “serious” one for jury trial

purposes. See United States v. Paternostro, 966 F.2d at 913

(rejecting argument that possibility of five-year probationary

period transforms a petty offense into a serious one). Even

when probation results in “a significant infringement of

personal freedom,” it is not comparable to incarceration,

which remains “the most powerful indication of whether an

offense is serious.” Blanton, 489 U.S. at 542 (internal cita-

tion and quotation marks omitted). The conditions of proba-

tion that a court may impose for a federal misdemeanor or

infraction—such as residing at an institution offering treat-

ment for drug or alcohol dependency, 18 U.S.C. 3563 (b) (10) ;

remaining in the custody of the Bureau of Prisons during

nights and weekends for a period not exceeding the term of

imprisonment authorized for the offense, see 18 U.S.C. 3563

(b) (11); or residing at a community correctional facility,

see 18 U.S.C. 3563(b) (12)—are not sufficiently onerous to

convert all federal crimes into “serious offenses” for jury

trial purposes.

9

jury trial. /d. at 3a-4a. The first rationale is with-

out merit, and this Court in Blanion explicitly re-

jected the second one.

a. The court of appeals concluded that ‘[t]here

is no controlling legislative determination here” as to

the seriousness of the DUI offense, because the six-

month prison term was fixed by the Secretary of the

Interior, rather than by Congress. App., infra, 4a.

That conclusion, however, ignores Congress’s antece-

dent decision to limit to six months the confinement

term that the Secretary can set for violations of his

regulations. See 16 U.S.C. 3. Although the Ninth

Circuit perceived some constitutional significance in

the Secretary’s decision to impose ‘the harshest pen-

alty available to him,” App., infra, 4a, the maximum

penalties chosen by the Secretary simply tracked the

maximum penalties fixed by Congress. Moreover, the

Secretary did not single out DUI for especially harsh

treatment. The six-month maximum term of confine-

ment was made applicable generally to virtually ali

offenses committed in nations] parks, see 36 C.F.R.

1.5(a), including such offenses as digging for bait,

36 C.F.R. 2.5(d) (6), and camping within 25 feet

of a road, 36 C.F.R. 2.10(b) (3).

The six-month maximum term of incarceration is

constitutionally significant not because the Secretary

chose it, but because, as Blanton teaches, that limita-

tion triggers the presumption that a jury trial is not

required for any offense to which it applies. 489 U.S.

at 545. Because the court of appeals did not—and

could not—find that any additional authorized pun-

ishment was sufficiently onerous to overcome that

presumption, respondent was not entitled to a jury

trial. See ibid. (when the maximum authorized

term of confinement is six months, the Constitution

10

requires a jury trial only in that “rare situation

where a legislature packs an offense it deems ‘serious’

with onerous penalties that nonetheless ‘do not punc-

ture the 6-month incarceration line.’ ”’).'

b. The court of appeals’ second rationale for hold-

ing that the federal DUI offense is not a “petty

offense’—that “the legislatures of seven states in

[the Ninth] Circuit have determined that drunk

driving is a ‘serious’ offense to which the right to

a jury trial attaches,” App., infra, 4a—is even less

tenable than the first. In Blanton, this Court ex-

pressly declined to review the statutory penalties for

drunk driving in other States as a basis for deter-

mining whether Nevada’s DUI offense was “serious.”

489 U.S. at 545 n.11. As the Court explained, “[t]he

question is not whether other States consider drunken

driving a ‘serious’ offense, but whether Nevada does.”

Ihid.; accord United States vy. Bencheck, 926 F.2d

7In any event, Blanton suggests that if the legislature has

not itself established a maximum sentence, as in a prosecution

for criminal contempt, “the severity of the penalty actually

imposed is the best indication of the seriousness of the par-

ticular offense.” 489 U.S. at 542 n.6 (quoting Frank v. United

States, 395 U.S. 147, 149 (1969)): see United States v.

Musser, 873 F.2d 1513, aff’d on denial of reh’g, 883 F.2d 84,

85 (D.C. Cir.) (even if the six-month maximum prison term

applicable to the violation of a Department of Interior regula-

tion concerning unattended signs did not make the offense

“netty” because the regulation was not promulgated by Con-

gress, the court would not automatically deem the offense

“serious”; instead, the availability of a jury trial would de-

pend on the sentence actually imposed), cert. denied, 493 U.S.

983 (1989). Respondent was sentenced to one year of un-

supervised probation and fined $750. Thus, even if the choice

of six months’ imprisonment as the penalty for violations of

the federal DUI regulations was not a “legislative determina-

tion’ within the meaning of Blanton, 489 U.S. at 543, respond-

ent was not entitled to a jury trial.

11

1512, 1517 (10th Cir. 1991) (“the Blanton Court

refused an invitation to survey and rely on state

law” to determine the seriousness of an offense).

Similarly, the relevant measure of the “seriousness”

of the federal DUI offense for purposes of the right

to a jury trial is not the “seriousness” of state drunk

driving offenses, but is Congress’s judgment, as re-

flected by the maximum term of imprisonment that

Congress has permitted the Secretary to set for that

offense and any additional penalties that Congress

has affixed to it.

¢. The Ninth Circuit acknowledged, App., infra,

2a-da, that it derived the two rationales for its deci-

sion from its pre-Blanton decision in United States

v. Craner, 652 F.2d 23 (1981). In Craner, the court

held that a jury trial was constitutionally required

for violations of former 16 C.F.R. 4.6 (1980), which

prohibited driving under the influence of intoxicating

liquor or drugs in park areas. That crime carried

the same maximum penalty of six months’ incarcera-

tion that is found in 36 C.F.R. 4.23(a) (1), which is

at issue here. In this case, the court of appeals held

that “Craner is indistinguishable in any legally mean-

ingful sense from the case at hand” and “remains

the law of this Circuit.” App., infra, 3a, da. But

Craner is oo longer good law after Blanton, because

Blanton expressly disapproved the authority on which

Craner was premised.

The Ninth Circuit in Craner relied heavily on

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

which held that reckless driving was a serious offense

requiring trial by jury. See Craner, 652 F.2d at 26

(“There is no legally meaningful distinction between

the present case and Colts.”). Craner noted that this

Court had “never repudiated Colts.” Ibid. In Blanton,

however, this Court contrasted its current approach

12

to the jury trial requirement with its approach to

that issue in Co/fs, which had “focused on the nature

of the offense and on whether it was triable by a

jury at common law.” 489 U.S. at 541. In Blanton,

this Court observed that, in s«cent years, it had

sought “objective indications of the seriousness with

which society regards the offense,” ‘hid. (quoting

Frank v. United States, 395 U.S. 147, 148 (1969)),

and had found “the most relevant such criteria in

the severity of the maximum authorized penalty,”

489 U.S. at 541 (quoting Baldwin v. New York, 399

U.S. 66, 68 (1970) (plurality opinion), and citing

Duncan vy. Louisiana, 391 U.S. 145, 159 (1968) ).

See also 489 U.S. at 542 (to determine whether a

jury trial is required, “[{p]rimary emphasis * * *

must be placed on the maximum authorized period

of incarceration,” because it is “the most powerful

indication of whether en offense is ‘serious.’”). The

Ninth Cireuit’s continued reliance on Craner in the

face of this Court’s express rejection in Blanton of

the reasoning on which Craner was based is further

proof that the decision helow is irreconcilable with

Jlanton.

2. The Ninth Circuit’s decision is inconsistent with

the post-Blanton decisions of several other circuits.

Unlike the Ninth Circuit, those courts have applied

Blanton’s analysis to hold that federal regulatory

crimes carrying a maximum penalty of six months’

incarceration and a $5,000 fine are petty offenses

and therefore not subject to 2 jury trial. See United

States v. Paternostro, 966 F.2d 907, 913 (Sth Cir.

1992) (permit violation under 36 C.F.R. 327.19);

United States v. Harper, 946 F.2d 1373, 1374 (8th

Cir. 1991) (placing an unauthorized structure in a

national forest, in violation of 36 C.F.R. 261.10(a),

and camping for more than 30 days, in violation of

13

36 C.F.R. 261.58(a)), cert denied, 112 S. Ct. 1506

(1992): United States vy. Musser, 873 F.2d 1513,

1516 (leaving a sign unattended in a national park,

in violation of 36 C.F.R. 7.96(g) (5) (x) (B)(2)),

aff'd on denial of reh’g, 883 F.2d 84 (D.C. Cir.), cert.

denied, 493 US. 983 (1989).* In none of those cases

did the courts find any significance in the fact that

the Secretary of the Interior fixed the statutory

maximum penalty within a range set by Congress;

nor did they look to how other States treated the

offense in question.

Other courts have likewise followed Blanton in hold-

ing the right to a jury trial does not apply to cases

carrying a maximum penalty of six months’ incar-

ceration, even when the offenses and penalties are

similar to those at issue here. See United States v.

LaValley, 957 F.2d 1309, 1312-1313 (6th Cir. 1992)

(wrongful entry of a military base, in violation of

i8 U.S.C. 1382; maximum authorized penalty of six

months’ confinement, $5,000 fine, and five years’

supervised release); United States v. Bencheck, 926

F.2d 1512, 1514-1520 (10th Cir. 1991) (several mis-

demeanors (various traffic offenses and assault on a

police officer) under Oklahoma law and the Assimilative

Crimes Act, 18 U.S.C. 13; maximum authorized pen-

a'ty for each offense of six months’ confinement, $500

fine, or both) : United States v. Garner, 874 F.2d 1510,

1512 (11th Cir. 1989) (DUI offense under Florida law

and the Assimilative Crimes Act; maximum penalties

are “similar” to those in Blanton, although Florida re-

“In Musser, the maximum fine was only $500 because 18

U.S.C. 3571 (e), which provides for a fine of up to $5,000 for

al! federal misdemeanors not specifically excluded from the

operation of that statute, had not gone into effect at the

time of the offenses at issue in that case.

4

voked license for a longer period and required 50

hours of community service); United States vy.

Spivey, 781 F. Supp. 676, 679 (D. Haw. 1991) (DU!

in violation of Hawaii law and the Assimilative

Crimes Act; maximum authorized penalty of six

months’ confinement and $1,000 fine); Stevenson v.

District of Columbia, 562 A.2d 622, 623 (D.C. 1989)

(DUT under D.C. Code; maximum authorized pen-

alty of 90 days’ confinement and $300 fine); Stete v.

Harrison, 792 P.2d 779 (Ariz. Ct. App. 1990) (traf-

fic offenses; maximum authorized penalty of four

months’ confinement and a fine).

We are aware of only one case in which a federal

court of appeals has found that the circumstances

were sufficient to overcome Blanton’s presumption

that offenses subject to a six-month maximum prison

term are petty. In Richter v. Fairbanks, 903 F.2d

1202, 1204-1205 (Sth Cir. 1990), the court of appeals

held that a jury trial was required for a DUI offense

under a Nebraska city ordinance, where the maxi-

mum penalty was six months’ incarceration, a $500

fine, and a 15-year driver’s license revocation. In

contrast to this case, however, the Eighth Circuit

reached that result by applying this Court’s analysis

in Blanton. In finding that “a 15-year revocation

is a substantial burden on the offender that is com-

pletely ‘out-of-step’ with a six month prison term,”

the court observed that “[t]he Supreme Court’s analy-

sis of the facts in Blanton supports our conclusion

that adding the 15-year license revocation to the

six month prison term resulted in a penaity severe

enough to warrant a jury trial in this case.” 905

F.2d at 1205. Thus, the decision below is as incon-

sistent with Richter as with the decisions discussed

above.

15

The analysis applied by the Ninth Circuit in this

case cannot be reconciled with the analysis followed

by the other circuits that have addressed similar

questions after Blanton. In light of the analysis

followed by the other circuits in the cases cited above,

there can be no doubt that a defendant charged with

the offenses in question here would not have been

entitled to a trial by jury in any of those circuits.

Accordingly, review of the decision below is necessary

to ensure that the Ninth Circuit applies the test

articulated by this Court in the same manner as every

other court of appeals that has addressed the jury

trial issue since Llanton.

3. The decision below, if allowed to stand, will

have a substantial adverse effect on the administra-

tion of justice in the Ninth Circuit. Each year, the

government prosecutes thousands of petty offenses,

including hundreds of DUI offenses,.committed in

federal parks and on other federal property, such

as military bases. During the past decade, the

government has prosecuted nationwide more than

700,000 petty offenses before United States Magis-

trates, including 83,258 such offenses during the last

year for which figures are available (July 1, 1990,

to June 30, 1991). Administrative Office of the

United States Courts; 1986 Ann. Rep. of the Director

36, Table S-26, at 130; Administrative Office of the

United States Courts, 1991 Ann. Rep. of the Director

107, Table 15, at 108. In addition, the United States

Attorney for the Eastern District of California, the

district where this case arose, reports that in 1991

4,731 petty offense charges were brought in his dis-

trict alone, and that of those charges, 252 were DUIs

brought under 36 C.F.R. 4.23(a)(1). Gov't Pet. for

Reh’g and Suggestion for Reh’g En Banc 8-9. To ex-

16

tend the right to a trial by jury to even a small

percentage of those cases would severely impede the

ability of the federal criminal justice system to ad-

judicate petty offenses expeditiously, and as a result

would significantly affect the ability of the courts to

handle more serious criminal cases and civil cases as

well. See United States y. Bencheck, 926 F.2d at

1517."

The impact of the Ninth Circuit’s ruling is not

likely to be lessened by the fact that that court did

not formally publish its opinion. Ordinarily, an un-

published opinion affects only the particular litigants

in the case at bar. The Ninth Circuit’s opinion in

this case, however, is likely to have a far broader

effect on the administration of justice at the trial

level. District court judges and magistrates, who

already face swollen dockets, can be expected to grant

jury trials in DUI cases despite the decision’s un-

published status in order to avoid a risk of reversal

on this ground. Because an order granting a jury

trial on demand is not appealable, the government

will have no way in such cases of presenting the jury

trial issue to the Ninth Circuit in another case seek-

*Since Congress has fixed the maximum sentence for all

regulatory offenses defined by the Secretary of the Interior

at six months’ imprisonment and a $5,000 fine, see 16 U.S.C.

3; 18 U.S.C. 3571(b) (6) and (7), and since the Secretary

has chosen to impose the maximum penalty available to him

on all offenses in national parks, see 36 C.F.R. 1.3(a), under

the Ninth Circuit’s decision in this case jury trials could now

be required for offenses such as failure to keep a pet on a

leash that does not exceed six feet in length, 36 C.F.R.

2.15(a) (2), using a surfboard on a beach designated for

swimming, 36 C.F.R. 3.22, and picnicking in a non-designated

area, 36 C.F.R. 2.11, al! of which carry the same maximum

penalty at issue here.

17

ing a published decision on the question. The deci-

sion below therefore merits the attention of this

Court.”

CONCLUSION

The petition for a writ of certiorari should be

granted. The Court may wish to consider summary

reversal,

tespectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C, BRYSON

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

Vick1IS. MARANI

Attorney

OCTOBER 1992

/ This Court has granted review of unpublished court of

appeals’ decisions in other cases raising questions warranting

review by this Court. EFE.g., Spectrum Sports, Ine. Vv. Me-

Quillan, cert. granted, No. 91-10 (unpublished opinion of the

Ninth Cireuit) (to be argued Nov. 10, 1992) ; Commissioner

Vv. McCoy, 484 U.S. 3, 7 (1987) (‘We note in passing that

the fact that the Court of Appeals’ order under challenge here

is unpublished carries no weight in our decision to review

the case. The Court of Appeals exceeded its jurisdiction re-

gardless of nonpublication and regardless of any assumed

lack of precedential effect of a ruling that is unpublished.”’) ;

Groen V. Bock Laundry Machine Co., 490 US. 504 (1989);

Rose Vv. Clark, 478 U.S. 570 (1986). That course is appro-

priate here, too.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 91-10212

D.C. No. CR-90-00154-EDP

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLANT

vs.

JERRY J. NACHTIGAL,

DEFENDANT-APPELLEE

Appeal from the United States District Court

for the Eastern District of California

Edward D. Price, District Judge, Presiding

Submitted January 17, 1992**

San Francisco, California

MEMORANDUM*

[Filed Jan. 27, 1992]

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

provided by 9th Cir. R. 36-3.

** The panel unanimously found this case suitable for de-

cision without oral argument. Fed. R. App. 34(a) and Ninth

Circuit Rule 34-4.

(la)

2a

Before: CHAMBERS, TANG, and PREGERSON,

Circuit Judges

Jerry Nachtigal was convicted before a magistrate

judge of driving a motor vehicle under the influence

of alcohol in Yosemite National Park, in violation of

296 C.F.R. § 4.23(a) (1). This crime carries a maxl-

mum sentence of six months imprisonment, 36 C.F.

£$1.3(a), a maximum fine of $5,000, 18 U.S.C.

§ 3571(b) (6), (e), and a maximum probationary

period of five years during which the defendant is

subject to a host of possible restrictions and condi-

tions, 18 U.S.C. $$ 3561(b) (2), 3563(a) (1), ‘(b).

On appeal to the district court, Nachtigal argued that

because of the severity of the potential sanctions, he

had a right to a jury trial. The district court agreed,

and reversed his conviction. The government now

appeals the reversal, arguing that Nachtigal has no

right to a jury trial.

‘We a surisdiction under 18 U.S.C. § 3731, and

we affirm.

DISCUSSION

Our constitution guarantees the right to trial by

jury. U.S. Const. art. III, § 2, el. 3; amend. VI. How-

ever, this right does not apply to all crimes. The

Supreme Court has recognized “the common-law rule

that ‘petty’ offenses may be tried without the inter-

vention of a jury.” United States v. Craner, 652

F.2d 23, 24 (9th Cir. 1981) (citations omitted). Sev-

eral Supreme Court cases, culminating in Blanton v.

City of North Las Vegas, Nevada, 109 S.Ct. 1289

(1989), have focused on offenses carrying maximum

prison terms of six months as the dividing line be-

tween “netty” and “serious” offenses. At issue here

is whether operating a motor vehicle under the in-

3a

fluence of alcohol on federal property, which carries

a Maximum term of six months imprisonment, is a

petty offense for which no right to a trial by jury

exists.

In Craner, we addressed this same question. In

that case, we held that a person accused of operating

a motor vehicle under the influence of alcohol in

Yosemite Park has a right to a jury trial. 652 F.2d

at 27. In doing so, we emphasized two factors. First,

the six month term of imprisonment is set by the

Secretary of the Interior, and “is the severest one the

Secretary may authorize.” Jd. at 25, citing 16 U.S.C.

$ 3. Second, we noted that seven states in this circuit

guarantee a right to a jury trial in drunk driving

cases. Id. at 27. We concluded in Craner that the

crime of driving a motor vehicle while intoxicated is

a serious one which merits trial by jury. Craner is

indistinguishable in any legally meaningful sense

from the case at hand, and controls this case.

The government urges us to abandon Craner, how-

ever, on the grounds that it has been overturned by

Blanton. There, the Supreme Court held that the

federal constitution does not require a jury trial

where a state drunk driving statute imposes a maxi-

mum penalty of six months imprisonment and a fine

of $1,000. 109 S.Ct. at 1293. The Court did not, how-

ever, adopt a bright line rule that an offense carrying

a muximum prison term of six months or less is

“netty.”” Id.

The Court in Blanton adopted a “somewhat im-

precise” test which focuses on the totality of statutory

sanctions in, order to determine whether there is “a

legislative determination that the offense in question

is a ‘serious’ one.” Jd. (emphasis added). Because

4a

of the Supreme Court’s emphasis on the legislature’s

intent in establishing criminal penalties, we do not

believe that Blanton is apposite to this case.

As Craner emphasized, the six month prison term

is dictated by the Secretary of the Interior, not Con-

gress. There is no controlling legislative determina-

tion here. Moreover, it would be error to construe the

six month prison term as indicative of the pettiness

of driving while intoxicated. As Craner noted, the

general regulatory powers vested in the Secretary by

Congress make six months the maximum sentence the

Secretary can impose for any offense. Indeed, the fact

that the Secretary imposed the harshest penalty avail-

able to him dictates the gravity of drunk driving.

Finally, to the extent that legislative determinations

are relevant, Craner points out that the legislatures

of seven states in our Circuit have determined that

drunk driving is a “serious” offense to which the

right to a jury trial attaches.

CONCLUSION

Blanton is inapposite to this case. Craner remains

the law of this Circuit. Nachtigal is therefore en-

titled to a jury trial. The judgment of the district

court is AFFIRMED.

5a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF CALIFORNIA

CR-F-90-27-DLB

JNITED STATES OF AMERICA, PLAINTIFF

Uv.

JERRY NACHTIGAL, DEFENDANT

MEMORANDUM OF DECISION AND

RULING ON DEFENDANT'S

MOTION FOR JURY TRIAL

[Filed Aug. 3, 1990]

This matter came regularly for hearing on June

29, 1990, in Courtroom No. 4 before the Honorable

Dennis L. Beck, United States Magistrate on defend-

ant’s motion for jury trial.

_Defendant and moving party was represented by

his attorney, Stephen Mensel, Assistant Federal De-

fender.

The Government was represented by Assistant

United States Attorney, Lawrence Lincoln.

The court having read and considered the points

and authorities in support of and in opposition to de-

6a

fendant’s motion and having heard the argument of

counsel in open court renders the following memo-

randum of decision and ruling on defendant’s motion.

Defendant is before this court charged with driv-

ing under the influence, in violation of 26 CFR § 4.23

(aj(1). The maximum punishment for violation of

36 CFR § 4.23(a)(1) is specified in 36 CFR § 1.3,

as amended by U.S.C. § 3571(b)(6), and is six

months in jail and or a fine of up to $5,000.00,

The defendant argues that he is entitled to a jury

trial since this offense is not properly characterized

as a “petty offense”. Defendant acknowledges that

Blanton v. City of North Las Vegas, U.S. —,

109 S.Ct. 1289 (1989) may have “arguably aban-

doned without specifically overruling’? United States

v. Craner, 652 F.2d 23 (9th Cir. 1981) which held

that a defendant charged with the same offense as

Mr. Nachtigal was entitled to a jury trial.

The court in Craner held that the defendant was

entitled to a jury trial on a charge of driving under

the influence, since the court could find no evidence

that serious legislative consideration was given to the

punishment for the offense which demonstrated a

conscious decision that it should be treated as a petty

offense. The court found that since the regulation,

under which the charge was brought, was promul-

gated by the Secretary of Interior and carried the

maximum punishment allowable for any violation of

the secretary’s regulations (the same punishment as

for “digging for bait in a national park” or for

“climbing Mt. Rushmore’) that there was no evi-

dence of a considered legislative determination; and,

therefore, the defendant was entitled under the to-

tality of the circumstances to a jury trial.

7a

In Blanton tae United States Supreme Court held

that a defendant charged with driving under the in-

fluence in Nevada (an offense which carried a maxi-

mum possible punishment of 6 months in jail and/or

a fine of up to $1,000) was not entitled to a jury

trial. The offense of driving under the influence in

Nevada carries additional penalties similar to Cali-

fornia such as an automatic suspension of drivers

license for 90 days, attendance, at defendant’s own

expense, at an alcohol abuse education program and

increased penalties for repeat offenders.

While the Court in Blanton declined to hold that

“an offense carrying a maximum prison term of six

months or less automatically qualifies as a ‘petty of-

fense’”’ they did “find it appropriate to assume for

purposes of the Sixth Amendment that society views

such an offense as ‘petty’.” Blanton, 109 S.Ct. 1289

at 1293. The Court went on to hold that

“A defendant is entitled to a jury trial in such

circumstances (where the offense punishable by

six months or less) only if he can demonstrate

that any additional statutory penalties, viewed

in conjunction with the maximum authorized pe-

riod of incarceration are so severe that they

clearly reflect a legislative determination that

the offense in question is a ‘serious’ one. This

standard, albeit somewhat imprecise, should in-

sure the availability of a jury trial in the rare

situation where a legislature packs an offense it

deems ‘serious’ with onerous penalties that none-

the-less ‘do not puncture the six months incar-

ceration line’.” Blanton, at p. 1293.

Defendant in his attempt to justify his request for

a jury trial points to added penalties in the instant

8a

case which justify departure from the presumption

set forth in Blanton and a determination that the in-

stant ofiense is a “serious” one. These additional

penalties cited by defendant are:

(1) A fine of $5,000 plus the possibility that in-

terest may be assessed thereon and a $10 penalty as-

sessment;

(2) The possibility that the court, as a condition

of probation, might order restitution;

(3) The possibility that, as a further condition of

probation, that the defendant might be “incarcerated”

for up to four and one half years in a federal com-

munity treatment center.

The court rejects each of defendant’s arguments

with respect to these added penalties. With respect

to the first two additional penalties, neither the added

fine and penalty assessment nor the restitution in-

volved are sufficient to support a findine that there

was a legislative determination that the offense was

a “serious” offense. Each of these penalties attaches,

by statute, to crimes designated by Congress as petty

offenses.

As to defendant’s third argument, that he might

be “incarcerated” in a community treatment center

for up to four and one half years as a condition of

probation, it is rejected as simply being incorrect.

Defendant acknowledges that under Brown v. Rison,

895 F.2d 533 (9th Cir. 1990) a defendant is entitled

to custody time credits for time spent (in that case

only between 7 p.m. and 5 a.m.) in a treatment

center as a condition of pretrial release. Neverthe-

less, he argues that the court could impose “incarcera-

tion” in a community treatment center as a condition

of probation for a period of up to four and one half

years.

9a

Defendant's argument is both incorrect and dis-

ingenuous. Defendant cites no authority for the

proposition that custodial alcohol or drug treatment

may be imposed as a condition of probation for a time

period in excess of the sixth month maximum period

of incarceration. Indeed the holding in Brown vy.

Rison indicates quite to the contrary, that a defend-

ant would be entitled to time credits for any such

ordered treatment which significantly limited the de-

fendant’s freedom and could be properly termed in-

carceration.

For the foregoing reasons defendant's motion for

jury trial is hereby denied.

DATED: 8 3/90

s Dennis L. Beck

United States Magistrate

10a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

No. CR F-90-154 EDP

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE

v.

JERRY J. NACHTIGAL,

DEFENDANT-APPELLANT

MEMORANDUM DECISION RE:

APPELLANT'S RIGHT TO A JURY TRIAL

[Filed Mar. 29, 1991]

Defendant was charged by information with a

violation of 36 CFR 4.23(a) (1), and 4.23(a)(2)° in

1 Operating under the influence of alcohol or drugs.

(a) Operating or being in actual physical control of a

motor vehicle is prohibited while:

(1) Under the influence of alcohol, or a drug, or drugs,

or any combination thereof, to a degree that renders the

operator incapable of safe operation; or

(2) The alcoho! concentration in the operator’s blood or

breath is 0.10 grams or more of alcoho! per 100 milliliters

lla

Yosemite National Park. When the defendant ap-

peared before Magistrate-Judge Pitts in Yosemite on

January 23, 1990, he declined the Magistrate’s juris-

diction. However, when he appeared before Magis-

trate-Judge Beck on or about March 29, 1990, he

consented to be tried before a magistrate-judge.

Defendant then moved for a jury trial. His motion

was denied. Defendant proceeded to trial before

Magistrate-Judge Beck and was convicted. Defendant

filed this appeal.

The sole issue on appeal is the propriety of the

ruling of the magistrate-judge that defendant was

not entitled to a trial by jury.

In United States v. Craner, 652 F.2d 23 (9th Cir.

1981), the Ninth Circuit held that defendant Craner

was entitled to a jury trial on charges of driving

under the influence of alcohol in Yosemite National

Park. The penalty imposed on Craner’s violation and

upon appellant, is the same. See 36 CFR § 1.3(a):

Penalties.

(a) A person convicted of violating a provision

of the regulations contained in Parts 1 through

5, 7, 12 and 13 of this chapter, within a park

area not covered in paragraphs (b) or (c) of

this section, shall be punished by a fine not ex-

ceeding $500 or by imprisonment not exceeding

of blood or 0.01 grams or more of alcohol per 210 liters

of breath. Provided however, that if State law that

applies to operating a motor vehicle while under the in-

fluence of alcohol establishes more restrictive limits of

alcohol concentration in the operator's blood or breath,

those limits supersede the limits specified in this para-

graph.

: 12a

6 months, or both, and shall be adjusted to pay

all costs of the proceedings.

In United States v. Craner, supra, at 26-27, the

court held that a defendant charged with driving

under the influence was entitled to a jury trial,

stating:

Federal and state precedent and practices

counsel ranking DUI as a “serious” crime. In

1930 the Supreme Court held that the analogous

offense of reckless driving was a serious oilense

within the constitutional guarantee of trial by

jury. See District of Columbia v. Colts, 282 U.S.

63, 51 S.Ct. 52, 75 L.Ed. 177 (1980). The court

in Colts reasoned that reckless driving was both

indictable at common law and malum in se, and

hence, serious.

There is no legally meaningful distinction be-

tween the present case and Colts. The govern-

ment, therefore, understandably argues that

Colts is superannuated and, as precedent, aban-

doned. Yet Colts was cited by Justice White

without disapproval in Baldwin—the very case

that supposedly doomed “the nature of the of-

fense” as the determinant of the right to a jury

trial. See Baldwin, supra, 399 U.S. at 69 n. 6,

$0 S.Ct. at 1888 n. 6 (plurality opinion). This

Court has rejected the argument that the Colts

line of cases should not be followed; the Supreme

Court has never repudiated Colts, although it

has had many opportunities to do so. United

States v. Sanchez-Meza, supra, 547 F.2d at 463-

64. See also United States v. Stewart, 568 F.2d

501, 503 (6th Cir. 1978); United States v.

Woods, 450 F.Supp. 1835, 13842 (D.Md.1978) ;

13a

Brady v. Blair, 427 F.Supp. 5, 9 (S.D.Ohio

1976).

At least seven of the states in this Circuit

guarantee the DUI defendant the right to a jury

trial. This is a better objective gauge of the

common perception of the gravity of the offense

than the broad formula for classifying crimes

found in 18 U.S.C. $1. It accords with the rele-

vant state and federal practice that Craner have

the jury trial he seeks.

In 1989, the United States Supreme Court decided

Blanton v. City of North Las Vegas, 489 U.S. '

103 L.Ed.2d 550, 109 S.Ct. —, (1989). In Blanton,

supra, two petitioners had been charged with driving

an automobile under the influence of alcohol in a

Nevada court. Each was a first time offender. The

Nevada state statute prescribed the following punish-

ment upon conviction:

1. A minimum of two (2) days imprisonment and

a maximum of six months imprisonment;

2. Alternatively, the trial court could order the

defendant to perform 48 hours of work for the com-

munity while dressed in distinctive garb, which iden-

tifies the wearer as a driving under the influence

offender ;

3. A fine ranging from $200 to $1,000;

4. Loss of his driver's license for 90 days; * and

5. The convicted individual must attend, at his

own expense, an alcohol abuse program.

* The convicted individual could receive a restricted license

after the expiration of 45 days, which would permit travel

to and from work, and to obtain food and medical care.

l4a

The lower Nevada courts had ruled differently as

to the entitlement of the two petitioners to a jury

trial. The Nevada Supreme Court ruled that neither

was so entitled. The Blanton case arose by certiorari

from the Nevada Supreme Court decision as to each

petitioner. Justice Marshall, writing for a unani-

mous court, held that:

Applying these principais here, it is apparent

that petitioners are not entitled to a jury trial.

The maximum authorized prison sentence for

first-time DUI offenders does not exceed six

months. A presumption therefore exists that the

Nevada legislature views DUI as a “petty” of-

fense for purposes of the Sixth Amendment. Con-

sidering the additional statutory penalties as

well, we do not believe that the Nevada Legisla-

ture has clearly indicated that DUI is a “serious”

offense.

In the first place, it is immaterial that a first-

time DUI offender may face a minimum term of

imprisonment. In settling on six months impris-

onment as the constitutional demarcation point,

we have assumed that a defendant convicted of

the offense in question would receive the mazi-

mum authorized prison sentence. It is not con-

stitutionally determinative, therefore, that a

particular defendant muy he required to serve

some amount of jail time /ess than six months.

Likewise, it is of little moment that a defendant

may receive the maximum prison term because

of the prohibitions on plea bargaining and _ pro-

bation. As for the 90-day license suspension, it,

too, will be irrelevant if it runs concurrently

with the prison sentence, which we assume for

15a

present purposes to be the maximum of six

months.

We are also unpersuaded by the fact that, in-

stead of a prison sentence, a DUI offender may

be ordered to perform 48 hours of community

service dressed in clothing identifying him as a

DUI offender. Even assuming the outfit is the

source of some embarrassment during the 4&-

hour period, such a penalty will be less embar-

rassing and less onerous than six months in jail.

As for the possible $1,000 fine, it is well below

the $5,000 level set by Congress in its most re-

cent definition of a “petty” offense, 18 USC $1

(1982 ed. Supp. IV [18 USCS $1], and peti-

tioners do not suggest that this congressional

figure is out of step with state practice for of-

fenses carrying prison sentences of six months

or less. Finally we ascribe little significance to

the fact that a DUI offender faces increased

penalties for repeat offenses. Recidivist penal-

ties of the magnitude imposed for DUI are com-

monplace and, in any event, petitioners do not

face such penalties here.

Viewed together, the statutory penalties are

not so severe that DUI must be deemed a “seri-

ous” offense for purposes of the Sixth Amend-

ment. It was not error, therefore, to deny peti-

tioners jury tral. Accordingly, the judgment of

the Supreme Court of Nevada is affirmed.

Blanton, supra, 103 L.Ed.2d at 557-58.

Blanton represents a marked departure from prior

Supreme Court precedents.

In Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d

491, 88 S.Ct. 1444 (1968), the court held that a

l6a

defendant in a Louisiana Court, charged with a mis-

demeanor of simple battery, punishable by a $390

fine, or imprisonment for 2 years, or both, was en-

titled to a jury trial. The constitutional analysis

used by the Court was the right guaranteed by the

Fourteenth Amendment to the Constitution.

In Baldwin v. New York, 399 U.S. 66, 26 L.Ed.2d

437, 90 S.Ct. 1886 (1969), the petitioner had been

denied a jury trial by the New York City Criminal

Court. He was charged with the misdemeanor of

“jostling”. The Act that created the New York City

Criminal Court provided that no jury trials would

be had in that court.

Five members of the court agreed that Baldwin

was entitled to a jury trial, although the maximum

penalty was one year imprisonment. Five judges

concurring with Justice White’s decision could not

agree on the grounds for the decision.

Some circuits viewed Buldirin as developing 2

“bright-line” test for determining whether a particu-

lar offense would entitle a defendant to a jury trial:

The Supreme Court has adopted a bright-linc

test for determining whether a crime is “seri-

ous.” An offense carrying a maximum penalty

in excess of six months imprisonment is con-

sidered sufficiently severe to be automatically

categorized as “serious.” Paldwmn, 399 U.S. at

69, 90 S.Ct. at 1888.

United States v. Jenkins, 780 F.2d 472, 473 (Ath

Cir. 1986).

However, the Supreme Court in Blanton v. Las

Vegas, supra, made it clear that cases where the pos-

sible penalty exceeded six months were sufficiently

lia

Severe to make the case triable by jury.’ Where, as

here, that “bright-line” is not reached, the defendant

must demonstrate that the collateral consequences of

conviction are so severe they elevate the offense to

the category of “serious.” The Supreme Court re-

jected the possibility that the convicted offender may

be required to perform 48 hours of community serv-

ice in a distinctive costume. The Court also was not

impressed by the $1,000 fine, and the fact that a

first offender faced increased penalties on a second

or more frequent offense.‘

These comments by the high court are at variance

with the Ninth Circuit precedent of United States v.

Craner, supra. (See Judge Sneed’s concurring opin-

ion). See California Vehicle Code section 23152,

23165, 23166, 23167, 23170, 23171, 23175. Under-

standably, the Supreme Court, dealing as it was with

a Nevada case, did not address these sections, or

analyze their effect upon its decision. However,

United States v. Craver, supra, remains the law of

this circuit.

It should be noted that in 1984, Congress reclassi-

fied federal offenses in 18 U.S.C. section 3559 as

follows:

3It should be noted that the maximum penalty in United

States v. Craner, 652 F.2d 28 (9th Cir. 1981) is the same

that is applicable here, i.e., $500 fine; imprisonment not to

exceed six (6) months, plus payment of costs.

*Implicit in the Supreme Court opinion is the suggestion

that all of these facts were known to the Nevada legislature

when they determined that first offenders charged with driv-

ing under the influence were not entitled to jury trials. The

Supreme Court did state that the opinion of the legislature

concerning this matter was entitled to great weight.

18a

(a) Classification An offense that is not spe-

cifically classified by a letter grade in the section

defining it, is classified if the maximum term

of imprisonment authorized is—

(1) life imprisonment, or if the maximum

penalty is death, as a Class A felony;

(2) twenty-five years or more, as a Class B

felony;

(3) less than twenty-five years but ten or

more years, as a Class C felony;

(4) less than ten years but five or more

years, as a Class D felony;

(5) less than five years but more than one

year, as a Class E felony;

(6) one year or less but more than six

months, as a Class A misdemeanor;

(7) six months or less but more than thirty

days, as a Class B misdemeanor;

(8) thirty days or less but more than five

days, as a Class C misdemeanor; or

(9) five days or less, or if no imprisonment

is authorized, as an infraction.

(b) Effect of classification. An offense classi-

fied under subsection (a) carries all the incidents

assigned to the applicable letter designation, ex-

cept that, the maximum term of imprisonment

is the term authorized by the law describing the

offense.

Beginning on November 1, 1987, Congress man-

dated that the courts should sentence according to

19a

the Sentencing Guidelines developed by the Sentenc-

ing Commission:

Application of guidelines in imposing a sentence.

The court shall impose a sentence of the kind,

and within the range, referred to in section

(a) (4) unless the court finds that there exists

an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in

formulating the guidelines that should result in

a sentence different from that described. In de-

termining whether a circumstance was ade-

quately taken into consideration, the court shall

consider only the sentencing guidelines, policy

statements, and official commentary of the Sen-

tencing Commission. In the absence of an ap-

plicable sentencing guideline, the court shall im-

pose an appropriate sentence, having due regard

for the purposes set forth in subsection (a) (2).

In the absence of an applicable sentencing guide-

line in the case of an offender other than a petty

offense, the court shall also have due regard for

the relationship of the sentence imposed to sen-

tences prescribed by guidelines applicable to sim-

ilar offenses and offenders, and to the applicable

policy statements of the Sentencing Commission.

Title 18 of the United States Code section 3553(b).

As of this date, the Sentencing Commission has not

formed a sentencing guideline for “driving under the

influence,” specifically, or Class B misdemeanors,

generally.

In 18 U.S.C. section 3571(b), Congress fixed the

range of fines for each class of crime:

20a

Fines for individuals. Except as provided in

subsection (e) of this section, an individual who

has been found guilty of an offense may be fined

not more than the greatest of—

(1) the amount specified in the law setting

forth the offense;

(2) the applicable amount under subsection

(d) of this section;

(3) for a felony, not more than $250,000;

(4) for a misdemeanor resulting in death,

not more than $250,000;

(5) for a Class A misdemeanor that does

not result in death, not more than $100,000;

(6) for a Class B or C misdemeanor that

does not result in death, not more than

$5,000; or

(7) for an infraction, not more than $5,000.

The Court notes that using the analysis announced

in Blanton v. Las Vegas, supra, something less than

a clear picture emerges. More important, however,

United States v. Craner, supra, is the law of this

circuit.

Since Blanton, supra, did not expressly overrule

United States v. Craner, supra, this Court must fol-

low it. Accordingly, the judgment is reversed.

DATED: March 28, 1991

/s’ Edward Dean Price

EDWARD DEAN PRICE

Senior United States District Judge

2la

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 91-10212

D.C. No, CR-90-00154-EDP

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLANT

vs.

JERRY J. NACHTIGAL,

DEFENDANT-APPELLEE

ORDER

[Filed Jul. 10, 1992]

Before: CHAMBERS, TANG, and PREGERSON,

Circuit Judges

Judges Chambers, Tang, and Pregerson voted to

deny the petition for rehearing. Judges Tang and

Pregerson voted to reject the suggestion for rehearing

en bane and Judge Chambers recommends such re-

jection.

The full court has been advised of the suggestion

for rehearing en bane and no active judge has re-

quested an en bane hearing. Federal Rule 35(b).

The petition for rehearing is denied and the sug-

gestion for rehearing en banc is rejected.

22a

APPENDIX E

Article III, § 2, Cl. 3 of the Constitution pro-

vides in part:

The trial of all crimes, except in cases of im-

peachment, shall be by jury * * *.

2. The Sixth Amendment to the Constiution pro-

vides in 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 com-

mitted * * *.

16 U.S.C. 3 provides in part:

The Secretary of the Interior shall make and

publish such rules and regulations as he may

deem necessary or proper for the use and man-

agement of the parks, monuments, and reserva-

tions under the jurisdiction of the National

Park Service, and any violation of any of the

rules and regulations authorized by this sec-

tion * * * shall be punished by a fine of not

more than $500 or imprisonment for not ex-

ceeding six month or both, and he adjudged to

pay all costs of the proceedings. * * *

18 U.S.C. 3571(b) (6) and (e) provides:

(b) Fines for individuals —Except as pro-

vided in subsection (e) of this section, an indi-

vidual who has been found guilty of an offense

may be fined not more thai the greatest of—

23a

(6) for a Class B or C misdemeanor that

does not result in death, not more than

$5,000[.]

* 8 id * *

(e) Special rule for lower fine specified in

substantive provision.—If a law setting forth an

offense specifies no fine or a fine that is lower

than the fine otherwise applicable under this sec-

tion and such law, by specific reference, ex-

empts the offense from the applicability of the

fine otherwise applicable under this section, the

defendant may not be fined more than the

amount specified in the law setting forth the

offense.

. 36 C.F.R. 1.3(a) provides:

A person convicted of violating a provision

of the regulations contained in Parts 1 through

5, 7, 12 and 13 of this chapter, within a park

area not covered in paragraphs (b) or (c) of

this section, shall be punished by a fine not ex-

ceeding $500 or by imprisonment not exceeding

6 months, or both, and shall be adjudged to pay

all costs of the proceedings.

. 36 C.F.R. 4.23(a) (1) provides in part:

(a) Operating or being in actual physical con-

trol of a motor vehicle is prohibited while:

(1) Under the influence of alcohol, or a

drug, or drugs, or any combination thereof,

to a degree that renders the operator in-

capable of safe operation[.]

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