Opposition Brief — United States v. Nachtigal

| Supreme Court, v.s,

FILED

DEC 21 1992

OFACE OF THE CLERK

No. 92-609

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

UNITED STATES OF AMERICA, Petitioner,

V.

JERRY J. NACHTIGAL, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

STEPHEN MENSEL

1221 Van Ness Ave., Suite 305

Fresno, California 93721-1720

Telephone: (209) 237-2600

Counsel for Respondent

/

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QUESTIONS PRESENTED

1. Whether in finding that a jury trial is commanded by Art.

III, & 2, Cl. 3 of the Constitution or Jury Trial Clause of the

Sixth Amendment because of the severity of the penalties allowed it

is sufficient for the lower court not to set forth in detail its

reasons therefore in an unpublished decision.

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

Trial Clause of the Sixth Amendment requires a jury trial for driv-

ing under the influence of alcohol given the panoply of penalties

availble pursuant to federal law, including a maximum of five years

probation to be served at a community treatment center.

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TABLE OF CONTENTS

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISONS INVOLVED

STATEMENT ..ccccccce eo cecccccccseccoseses -TEEEEPUECELECELTL TET

REASONS FOR NOT GRANTING THE PETITION .......0e006. eeocccceese

CONCLUSION ....... TERETE EEEEEEEEEELEEE LEE TEPEPELELETT

TABLE OF AUTHORITIES

Cases:

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

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

Brown v.

Richter v. Fairbanks,

Rison,

United States v.

895 F.2d 533 (9th Cir. 1990)

Bencheck, 926 F.2d 1512...

903 F.2d 1202 (8th Cir.

1990) ne © fe fe ee @ ©

United States v. Craner, 652 F.2d 23 (9th Cir. 1981) ........

United States v. Harper, 946 F.2d 1373 (8th Cir. 1991),

Gest. Gemies, Lid SB. CO. 1906 (A992) ccccccccecceccceseccs

United States v. Paternosro, 966 F.2d 907 (5th Cir. 1992) ...

United States v. Snyder, 852 F.2d 471 (9th Cir. 1988) .......

Constitution, statutes, and regulations:

U.S. Const.:

18

18

18

18

18

Art.

Amend. VI

U.S.C.

OeBeCe

U.S.C.

U.S.C.

U.S.C.

TIT, $ 2, Che 3 cocccccvsccscccees

§ 3555

§ 3561

§ 3561(D)(3) wccccccccccccscscccces

§ 3563

§ 3571

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ii

Statutes and regulations - Continued:

36

36

36

Circuit Rule 36-3,

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Gs

sBeCe

-S.

se

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F.

F.

Ge

2)

ve]

R.

8

§

§

§

§

3571(d) ...

1.3 (1989)

4.23 (a)(2)

4.23(a)(1)

4.24(a)(2)

eaesenonsssseeeeea ee eae eoeeeoe ee eee e eee eee]

eoesoeoeseeeeesseenvneeveene ee eee eees eee eeeeeeee

Ninth Circuit RULES .. cee eeeeee reece rerseeeee

iii

No. 92-609

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

UNITED STATES OF AMERICA, Petitioner,

Vv.

JERRY J. NACHTIGAL, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Stephen Mensel,. Esq., on behalf of Jerry J. Nachtigal, respect-

fully opposes the petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Ninth Circuit

brought by the United States in this case.

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED

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

tution; 16 U.S.C. § 3; 18 U.S.C. §§ 3555, 3561(b)(3), 3563(a) and

(db), 3571(b) and (da), 3612, 3613, 3614, 3663, 36 C.F.R. §§ 1.3 and

4.24(a)(1) and (2).

STATEMENT

1. On February 15, 1990, the respondent was charged by a two

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count information with operating a motor vehicle while under the

influence of alcohol in violation of 36 C.F.R. § 4.23(a)(1) and

operating a motor vehicle while having a blood alcohol level in

excess of .10 gr. per 100 ml. of blood in violation of 36 C.F.R. §

4.23 (a)(2) in Yosemite National Park on September 20, 1989.

2. The Magistrate conducted a court trial and acquitted the

respondent of 36 C.F.R. § 4.24(a)(2), operating a vehicle under the

influence of .10 gr. of alcohol per 100 ml. of blood, but convicted

him of 36 C.F.R. § 4.23(a)(1), operating under the influence of

alcohol. Respondent was fined $750.00, ordered to pay a penalty

assessment of $10.00, and was placed on terms of unsupervised proba-

tion for 1 year.

3. Thereafter, respondent filed his Notice Of Appeal to the

United States District Court. The District Court overruled the

Magistrate, set aside the conviction, and ordered a jury trial. The

government appealed to the United States Court of Appeals for the

Ninth Circuit. The Court of Appeals affirmed the District Court and

remanded for jury trial.

4. The Court of Appeals stated that it agreed with the Dis-

trict Court appellate decision and stated as follows:

On appeal to the district court, Nachtigal

[respondent] argued that because of the

severity of the potential sanctions, he had

a right to a jury trial. The district court

agreed, and reversed the conviction.

The Court of Appeals further found the government’s position that

Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S. Ct. 1289

(1989), overruled the court’s prior decision requiring jury trials

in drunk driving cases in Yosemite National Park was incorrect. It

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stated that its prior decision in United States v. Cranmer 652 F.2d

23 ( 9th Cir. 1981), was still good law even when analyzed according

to Blanton. It stated that the penalty applicable to the respondent

was a “serious” one in Blanton terms. It found that based on the

harshness of the penalty. It said, “Indeed, the fact that the

Secretary [of Interior] imposed the harshest penalty available to

him dictates the gravity of drunk driving."

5. The offenses of which respondent was accused exposed him to

numerous penalties. The most important of which are as follows:

a. The incarceration provision, 36 C.F.R. § 1.3, sets

forth a penalty of up to 6 months incarceration and a $500.00 fine.

The fine is increased to a maximum of $5,000.00 by the terms of 18

U.S.C. § 3571(b)(6).

b. 18 U.S.C. § 3561(b)(3) authorizes a term of probation

of up to 5 years as an alternative to incarceration.

c. 18 U.S.C. § 3563(a) establishes mandatory conditions

of probation which include the following:

i. Not committing another crime;

ii. Not possessing illegal controlled substances;

and,

iii. For any court ordered fine, payment thereof and

adherence to any court ordered payment schedule are part of the

conditions of probation.

qd. 18 U.S.C. § 3563(b) establishes discretionary condi-

tions of probation describing them as “deprivations of liberty and

property” which include (parentheticals indicate subsections of §

3563(b)):

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i. (1) Support dependents and meet other family

responsibilities;

ii. (3) Make restitution pursuant to 18 U.S.C. §§

3663 and 3664 (without the limitations of § 3663(a)) [The provisions

regarding restitution applicable to respondent are covered below];

iii. (4) Give victims of the offense notice pursuant

to 18 U.S.C. § 3555?

iv. (5) Work at suitable employment or pursue a

course of study or vocational training;

v. (6) Refrain or engage only to a specifiea limited

degree in a specified occupation, business, or profession;

vi. (10) Undergo medical, psychiatric, or psycholog-

ical treatment and remain in a specified institution if required for

that purpose;

vii. (12) Reside at or participate in the program of

a community corrections facility (including a facility maintained or

under contract to the Bureau of Prisons) for all or part of the term

of probation, a period of up to five years pursuant to 18 U.S.C. §

3561(b)(3)?

viii. (13) Work in community service;

ix. (20) Remain at home during nonworking hours and

have compliance therewith monitored electronically or by telephone.

(This condition can only be imposed as an alternative to incarcera-

tion); :

x. (21) Satisfy other conditions as the court may

impose which may include a prohibition on driving for the five year

period of probation;

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~

d. 18 U.S.C. § 3571(d) authorizes a fine of among other

things twice the pecuniary loss from the offense for any loss by a

person other than the defendant;

e. 18 U.S.C. § 3612(f) authorizes the Attorney General to

collect interest compounded daily at the one year Treasury bill

rate on any fine in excess of $2,500.00;

f. 18 U.S.C. § 3612 authorizes up to a 15 percent penalty

of the principal amount of any fine that is in default;

g- 18 U.S.C. § 3612 commands that any judgment ordering a

fine (a public record) list the defendants name, social security

number, mailing address, and residence address;

h. 18 U.S.C. § 3613 authorizes the Attorney General to

obtain a lien on the property of the defendant for the amount of the

fine. It remains in force for up to 20 years, is enforceable as a

Internal Revenue tax assessment, and is not dischargeable in bank-

ruptcy;

i. 18 U.S.C. § 3614 authorizes the resentencing of a

person who has knowingly failed to pay a delinquent fine and author-

izes imprisonment of a person who has willfully refused to pay a

delinquent fine;

j- 18 U.S.C. § 3663 authorizes restitution as a condition

of probation for any losses and medical treatment and related ex-

penses occasioned by the offense as follows: -

i. There is no limit on the amount of restitution;

ii. The restitution order is enforceable as a civil

judgment in state and federal courts;

iii. The Attorney General may enforce the restitu-

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tion order under the enforcement provisions available to it for

fines allowing for a 20 year lien, no discharge in bankruptcy, and

enforceability as an Internal Revenue tax assessment;

iv. The court may revoke the terms of the defend-

ant’s probation for failure to pay the restitution and order incar-

ceration.

REASONS FOR NOT GRANTING THE PETITION

1. The lower court’s decision is in accord with this court’s deci-

sion in Blanton.

while the lower court’s unpublished decision is terse, it

nevertheless states unequivocally that respondent is entitled to a

jury trial because of the harsh penalty attached to conviction.

That finding squares the case with Blanton.

Blanton reviews the historical record of the Supreme Court’s

attempts to define what particular offenses fall into the category

of petty offenses historically not triable by a jury. It concludes

that the seriousness of a crime determines whether or not it is

triable by a jury. Id, at 1292. It found that "the most relevant

such criteria {of seriousness] is the severity of the maximum au-

thorized penalty." Id, at 1292 (citing Baldwin v. New York, 399

U.S. 66, 68, 90 S.Ct. 1886, 1887 (1970)).

By maximum authorized penalty, the Blanton court was referring

to all penalties the legislature had authorized for conviction of

drunk driving. While placing “primary emphasis" on the maximum

authorized period of incarceration, the court enumerated and totaled

the different sorts of penalties available to the Nevada judge in

order to determine if for any one penalty or for any combination of

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penalties the defendant would be entitled to a jury trial.

The penalties faced by Blanton were as follows:

a. 6 months incarceration;

b. And/or a fine of up to $1,000.00 with a $200.00 mini-

mum;

C. Automatic suspension of driver’s license up to 90

days. A partially restricted license was available after 45 days;

d. Attendance at the defendant’s expense at an alcohol

abuse education program. The court described the state education

program as "de minimus".

e. 48 hours of community service while dressed in dis-

tinctive garb identifying the person as a drunk driving offender.

Id. at 1294.

The Blanton decision gave the courts the following "standard"

by which to review cases for entitlement to a jury trial:

A defendant is entitled to a jury trial

in such circumstances [where the offense is

punishable by 6 months or less incarcera

tion] only if he can demonstrate that any

additional statutory penalties, viewed in

conjunction with the maximum authorized

period of incarceration are so severe that

they clearly reflect a legislative determina

tion that the offense is a "serious" one.

This standard, albeit somewhat imprecise,

should insure the availability of a jury :

trial in the rare situation where a legisla

ture packs an offense it deems "serious" with

onerous penalties that none-the-less "do no

puncture the six month incarceration line".

Id. at 1293.

The lower court did not spell out the maximum penalties in its

ruling, but they were before it. Nachtigal’s C.A. Br. 8-11. It was ™

aware that respondent, upon a conviction of driving under the influ-

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ence in Yosemite National Park, was faced with sentencing as fol-

lows:

a. Incarceration for 6 months in the custody of the

Bureau of Prisons;

b. Reside at and participate in a program of community

corrections facility maintained by the Bureau of Prisons for a

period of up to 5 years as an alternative to incarceration, which is

equivalent to imprisonment in severity according the lower court’s

decision in Brown v. Rison, 895 F.2d 533 (9th Cir. 1990) and the

Sentencing Guidelines, § §5Cl.1l(e)(2);

c. Not drive for the five year period of probation pursu-

ant to United States v. Snyder, 852 F.2d 471, 474 (9th Cir. 1988);

d. Fined $5,000.00 or twice the pecuniary loss caused to

someone else by the offense. The court may order it paid over five

years with interest at the Treasury bill rate amounting at the time

to a total of over $7,000.00. It is enforceable as an IRS tax

assessment and not dischargeable in bankruptcy?

e. Ordered to pay restitution in an unlimited amount to

the Attorney General, enforceable as an IRS tax assessment, and not

dischargeable in bankruptcy;

f. Ordered to pay an unlimited amount for the expenses of

alcohol abuse education and any other medical, psychological, psy-

chiatric, and related services;

g. Ordered to work in community service for an unlimited

amount of hours, refrain from certain types of work no matter the

economic consequences.

Against this backdrop the petitioner complains that the lower

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court decision is irreconcilable with and disregards the result and

reasoning in Blanton. It appears that the only true complaint one

might have is about the lower court’s lack of rhetoric. Even that

complaint should fall on deaf ears because the lower court decision

is unpublished and thus not citable as precedent. Circuit Rule 36-

3, Ninth Circuit Rules.

2. The lower court’s decision finding the penalty to be onerous

does not conflict with other court decisions.

None of the decisions cited by petitioner are in conflict with

the decision sought for review.

In United States v. Paternosro, 966 F.2d 907, 913 (5th Cir.

1992), the court determined that no jury trial was available because

the penalty consisted of up to 6 months in prison and "[tjhe addi-

tional penalties of a $5,000 fine and extended probationary period

imposed under 18 U.S.C. § 3571(b)...." If anything, that decision

is incorrect because it used the additional penalties imposed in-

stead of those that could be imposed as required by Blanton. The

petitioner cites other court decisions that conflict with Blanton in

the same way.

United States v. Bencheck, 926 F.2d 1512 (10th Cir. 1991), does

even more mischief. There the defendant was faced with four sepa-

rate charges arising from one encounter with police for which he

could be imprisoned for 24 months. He received no jury trial. The

appellate court majority agreed reasoning none was available because

the trial judge promised a total of no more than 6 months in jail if

the defendant was convicted of all the charges and only imposed 10

days on three concurrent suspended 6 month sentences and probation

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for 6 months minus the 10 days. The spirited dissent disagreed

finding that the majority had violated the requirements of Blanton

and should have reversed for a jury trial. Bencheck, supra, at

1520-22 (Ebel, Circuit Judge, dissenting.).

The petitioner cites United States v. Harper, 946 F.2d 1373

(8th Cir. 1991), cert. denied, 112 Ss. Ct. 1506 (1992), in support of

its position that there exists a conflict among circuits. This is

either a case inapposite to petitioner’s or again a case in conflict

with Blanton. The appellate court only reviewed the sentence im-

posed of 6 months incarceration, $500 fine, and $10 penalty assess~-

ment on each of two counts to determine that under Blanton no jury

trial was necessary. If those were the maximum penalties, then

they clearly do not even rise to those available in Blanton. If

not, that court’s analysis violates Blanton by failing to take into

account the maximum statutory penalties that could be imposed for

such wrongs.

The remainder of petitioner’s citations for cases that are

inconsistent sith the inotent matter are either likewise inconsist-

ent with Blanton, or are one’s in which the stated penalties fail to

come rationally close in seriousness to those available here, or as

in Richter v. Fairbanks, 903 F.2d 1202 (8th Cir. 1990), support

respondent contrary to petitioner. In sum, those that do follow

Blanton do not conflict because petitioner’s case follows Blanton.

3. The effect of this lower court unpublished decision is at best

limited to drunk driving cases.

The petitioner claims far reaching effects of the lower court’s

decision. Assuming without agreeing that federal trial courts will

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grant jury trials in drunk driving cases as a result of this case,

the lower court’s limited decision allows only that they will do so

in drunk driving cases. Contrary to petitioners unsubstantiated

claim there will be no increase in jury trials for such matters

because before the court’s decision they were granting jury trials

in drunk driving ounee. Thus, there will be no increase in such

matters on account of the decision.

Illegal digging for bait and the numerous other C.F.R. provi-

sions cited by petitioner were not addressed by ‘the lower court’s

decision by virtue of it’s limitation to drunk driving. Perhaps it

is time for this court to look at the unfettered discretion trial

courts have to impose penalties as severe as that could be imposed

on respondent. The petitioner’s example of six months in jail or

five years in a community treatment center, etc., without a jury

trial for having a dog on a seven foot leash seems to be what he

wants this court to sanction by virtue of his argument. These other

provisions of the C.F.R.’s may beg for redress as cruel and unusual

punishment and demanding a jury trial, but that matter is not

raised here because of the lower court’s limited decision.

4. The court should not entertain the petitioners repeated requests

for summary reversal of the lower court.

The petitioner asks the court to summarily reverse the lower

court. As set out above, if the lower court failed it was by not

specifically addressing the petitioners concerns in detail and by

merely stating that the penalty available was sufficient to trigger

the right to a jury trial. If such detailed findings are necessary,

such was not spelled out in Bianton and more importantly they seem

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unnecessary in this unpublished and therefore nonprecedental deci-

sion. If on the other hand this court decides to review the lower

court’s decision, the brevity of the lower court’s decision should

not be held against the respondent. Respondent submits that an

equitable decision would decline the suggestion for summary reversal

and would allowing briefing on the merits in order to properly and

fully confront the details and contours of the petitioner’s conten-

tions.

CONCLUSION

The petition for writ of certiorari should be denied. The

petitioner’s suggestion for summary reversal should not be enter-

tained.

Respectfully submitted,

PHEN MENSEL

1221 Van Ness Aves, Suite 305

Fresno, CA 93721-1720

(209) 237-2600

Counsel for Respondent

December 18, 1992.

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