Joint Appendix — Lewis v. United States

In The

Supreme Court of the United States

October Term, 1995

¢

RAY A. LEWIS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

+

On Writ Of Certiorari To The United States

Court Of Appeals For The Second Circuit

°

JOINT APPENDIX

.

Steven M. STATSINGER Drew S. Days, III

The Legal Aid Society Solicitor General

Federal Defender Division Department of Justice

Appeals Bureau Washington, D.C. 20530

52 Duane Street - 10th Floor Tel.: (202) 514-2217

New York, New York 10007

Tel.: (212) 285-2842

Counsel for Petitioner

Counsel for Respondent

Petition For Certiorari Filed October 20, 1995

Certiorari Granted January 19, 1996

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Transcript of Hearing, Dated February 24, 1994....

Opinion of the United States District Court for the East-

ern District of New York, December 7, 1994

Opinion of the United States Court of Appeals for the

Second Circuit, September 5, 1995 27

Order of the Supreme Court of the United States

Granting Certiorari and Leave to Proceed In Forma

Pauperis, January 19, 1996

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RELEVANT DOCKET ENTRIES

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COMPLAINT

Magistrate Arraignment

DISMISSAL of Complaint on Government

Motion as to Ray A. Lewis. Terminated

Motions: Complaint dismissed

MISDEMEANOR INFORMATION

ARRAIGNMENT

ARRAIGNMENT

MOTION by Ray A. Lewis to suppress

post-arrest statements

SUPPRESSION HEARING: Defendant's

motion to suppress statements and evi-

dence is DENIED

CONFERENCE .. . Defendant's Applica-

tion to have a jury trial is Denied

Bench trial

Sentencing

NOTICE OF APPEAL

JUDGMENT

Transcript of Hearing, February 24, 1994

[2] THE CLERK: Criminal Cause for Status

CR-93-1342 (JMA), United States versus Ray A. Lewis.

For the government Jim Walden and Mark Kirsch. For the

defense Cynthia Matthews and Jan Roston.

THE COURT: Okay. Do you want to be heard?

MR. WALDEN: Yes, your Honor. Your Honor,

there's two things to say in this case. First of all, the

aggregation rule, if it applies at all, applies only to inci-

dents where there's a single criminal incident. And every

case that’s cited, that discusses the aggregation rule, dis-

cusses it in the context of a single criminal incident. The

most telling case in [sic] the one the defense sites in their

latest papers is the Musgrave (Ph) case.

In the Musgrave case in one passage discusses both

the theory underlying the aggregation rule and the fact

that in this case there was only a single criminal incident.

And if your Honor likes, I'll read it. Because modern

criminal codes permit multiple charges to flow from sin-

gle discrete acts of criminality, a criminal prosecution can

threaten a defendant with consequences of a series of

events. Even though the defendant is not charged with an

offense which is deemed a serious offense, I think the

Papers are clear, and the FMS case further supports that.

The defense counsel has cited in their latest papers

that it was affirmed by the Second Circuit. That’s not [3]

the case. That opinion never went up on appeal, and the

Second Circuit case only affirmed the underlying convic-

tion and discussed a separate statutory section.

Second, your Honor, to the extent that you would

normally hold that the aggregation rule applies, the gov-

ernment would ask that you rely on Section 18 USC

Section 3584, and rule in advance that there will be con-

current sentences here rather than consecutive sentences.

The latest opinion to come out of the Tenth Circuit,

the Bencheck (Ph) case, supports this, and in discussing

the rational [sic] in the Bencheck case, the Court discusses

the other two precedents that defense counsel relies on,

that being the Potvin (Ph) case, and the Har (Ph) versus

Hanrahan (Ph) case. And it purports to be the latest Tenth

Circuit descision [sic] on this issue. In that case, the

judge, the trial judge ruled in advance, that under no

circumstances would he sentence the defendant to more

than six months. And then as a result, the Tenth Circuit

said that he wasn’t entitled to a jury trial under those

facts.

Here, if your Honor wished to rule under Section

3584, the same situation would apply. Under either the-

ory though, your Honor, the defendant would not be

entitled to a jury trial in this case, and the government

requests a bench trial.

THE COURT: And do you want to address the

[4] collateral consequences beyond your papers?

MR. WALDEN: Your Honor, I think my papers

speak for themselves in that regard.

THE COURT: Now, Miss Matthews, what about

Section 3584?

MS. MATTHEWS: Well -

THE COURT: If I say today I am under no

circumstances, there will be no circumstances under

which I will sentence Mr. Lewis to more than six months,

what's your position? Or your position Miss Roston or,

someone's position?

MS. MATTHEWS: | still think that we need a

jury trial. The only authority for that is the Bencheck case,

and there — I'd have to look at it again. I seem to remem-

ber dissenting opinion in the Bencheck case, the reason-

ing of which I thought was pretty sound. And that is that

if the principle — the principles of Baldwin are to - are to

be followed, then you can’t simply say at the beginning

that you're willing to trump the statutory mandated pen-

alty or statutory available penalty. What Baldwin referred

to was the statutory penalty that was available at the

onset, and you can’t simply say I’m only going to enforce

that for six months.

THE COURT: But that’s what makes it serious,

is the threat of a year in prison.

MS. MATTHEWS: But there was —- what makes

a crime serious is what the people in an acting legislation

call serious [5] by specifying penalties.

THE COURT: Except that all the cases that

analyze it talk about the fact that you can be sentenced to

a year in prison. That seems to be the factor.

MS. MATTHEWS: Right, but that is so because

the courts are concerned about what the legislation says

by an objective test, what the legislation says, not what

the actual term of imprisonment is going to be. I mean, in

any of these cases where you're talking about tradi-

tionally petty offenses, rarely are these people ever sent

to jail for any period of time. I mean, everyone knows

that this is sort of an academic exercise to begin with.

So, if we’re talking about what actual sentences that

are going to be imposed, then we’re not talking about

anything that’s going to matter. And what these cases talk

about is how these crimes are viewed legislatively in

terms of the maximum penalties that could be imposed.

That makes them serious; not necessarily that any Court

is going to say, I’m only going to impose six months or a

year or probation, that doesn’t really matter. What mat-

ters to make it serious is what the legislature has said the

seriousness of the crime is as expressed by the maximum

penalty that they’ve written into the statute.

THE COURT: Anything else?

MR. WALDEN: Yes. May I respond, your

Honor?

[6] It seems to me, your Honor, that defense counsel

is arguing on both sides of the fence here. When they

want to get around the possibility of you ordering con-

current sentences, they say that when the Supreme Court

talked about the projected indicators in Blantin (Ph),

they’re talking about the statute. And if the statute

applies here, then 18 USC, Section 19 defines these crimes

as petty, and nothing in Section 19 says that you aggre-

gate, that would be an exception to Blantin.

But then, when if comes to trying to get around the

fact that Blantin says look at the statute, then they say, oh,

well, then the objective indicator here is the maximum

a

penalty that the defendant should be subject to. And then

they say you have to aggregate. It doesn’t seem like both

positions can be simultaneously maintained, your Honor.

THE COURT: That’s a good point. Do you want

to respond?

MS. MATTHEWS: The point being?

THE COURT: The point being that - when you

want to get around me saying that I'm not going to

sentence to more than six months, you say you have to

look at the statutory language. And when you don’t want

me to look at the statutory language which defines this as

a petty offense, you don’t want me to look at that, that

part of the statutory language.

MS. MATTHEWS: Which are, but Baldwin - |

mean none of those cases have ever looked to the term

petty offense [7] to define whether a case - a crime is

serious for purposes of triggering the Sixth Amendment

right to a jury trial. | mean, the fact that it’s called a petty

offense by statute, doesn’t automatically, you know, viti-

ate any right to a jury trial. I mean, we’re not arguing that

at all. I mean, I don’t care what the statute calls it. What

the cases say is that you have to look to the objective

criteria in the statute, and that that is the potential pen-

alty to be imposed. That’s what you look to to determine

whether it’s serious.

The legislature can call it petty or felony or misde-

meanor or whatever they want.

THE COURT: But, you have to admit the cases

go both ways. It’s not so clear that your position is etched

in stone in the case law.

MS. MATTHEWS: The position about aggrega-

tion or the position -

THE COURT: That this is serious and warrants

jury trial.

MS. MATTHEWS: On aggregation grounds?

THE COURT: Yes.

MS. MATTHEWS: | think it’s pretty clear. |

mean, what -

THE COURT: That you aggregate?

MS. MATTHEWS: That you aggregate the two.

If there are two counts in the indictment, that you aggre-

gate the [8] two.

THE COURT: In situations like this, I -

MS. MATTHEWS: I think where they're - par-

ticularly like this, whether they’re clearly related.

THE COURT: Related why?

MS. MATTHEWS: Related because it’s the same

course of conduct that they say Mr. Lewis was engaging

in. I mean I don’t even think, as I said — as we said in the

letter, I don’t even think you need to get into that anal-

ysis. But the government has engaged in it, and I think

even -

THE COURT: What incident?

MS. MATTHEWS: Well, the government is

pointing out that where they aggregate it really stems

from one criminal incident. Isn't that your argument?

MR. WALDEN: It is my argument.

MS. MATTHEWS: But it doesn’t in the cases. It

doesn’t in the cases. I mean there’s no case that we have

seen that discusses - there’s no case that we have seen

that says you shouldn’t aggregate in this situation

because these are distinct criminal acts. Rather, they all

analyze the problem as two counts and, therefore, should

be aggregated. And in many of those cases, as we pointed

out in the letter, it’s clear from the facts and from the

record, particularly in the FMC case, that they were dis-

tinct acts.

I mean that’s the case where there were 96 birds, [9]

or whatever, that were killed over a period of time, and

the government had charged birds in different counts,

clearly those birds were killed on different occasions.

MR. WALDEN: May I respond, your Honor?

THE COURT: Uh huh.

MR. WALDEN: Your Honor, the FMS case -

THE COURT: FMC.

MR. WALDEN: Oh, I thought it was FMS, your

Honor.

MS. MATTHEWS: It’s FMC.

MR. WALDEN: It the FMC case, your Honor,

there was one criminal act. They discharged pollutants

into a lagoon. The birds, as the Second Circuit opinion

clearly states, the counts were based on when the birds

were found, not when the pollution was discharged into

the lake. And that is a perfect case to show your Honor

exactly why the aggregation rule applies where it does.

There was one criminal act, and the government went

haywire, and charged 36 counts based on different spe-

cies of birds that were discovered at different times. Your

Honor, I will stipulate in that kind of a situation -

THE COURT: Yes.

MR. WALDEN: That if I were a judge, I would

apply the aggregation rule too. But it doesn’t apply here,

where there were two separate incidents, and if we

brought the trial [10] - if we had brought charges on each

- on two informations which we were entitled to do,

there is no dispute here that this would be a bench trial in

each case and that your Honor could sentence him con-

secutively in both.

MS. MATTHEWS: Wait a second. I mean, |

think we do take issue with the way the government - the

way the government describes the facts in FMC. It’s clear

from the Second Circuit opinion that the discharge of the

pollutants occurred over, I think it was a three month

time — two or three month time period, which means that

they charged — whether they picked as the days that they

put in the indictment the days the birds were found or

not, they’re charging separate acts of discharging pollu-

tion which killed different birds on different days. It’s not

any different than Mr. Lewis’ case.

THE COURT: Oh, yes it is. Oh, it’s very differ-

ent than Mr. Lewis’ case. I mean, it’s the same - isn’t

Potvin the one about the lumber?

MS. ROSTEL: And there are two different dis-

crete acts in that as well, where if someone is first chop-

ping timber, and then building a shelter on property. It

10

must have taken — it couldn’t have taken one day. It must

have been over, you know, a period of time.

THE COURT: Well, there were two discrete acts

in Potvin. One was actually the trespass on the public

land and making a shelter there. They put up tents on

public lands.

[11] The second act was the chopping of timber and

building a structure on public land. And that again

occurred over a time period.

MR. WALDEN: Your Honor, if I could respond.

The holding in Potvin directly contradicts that reading of

the case. The Court says specifically that there is an

aggregation rule where the offenses stem from closely

related -

THE COURT: From a single criminal.

MR. WALDEN: Closely related and arose out of

the same acts.

MS. MATTHEWS: And there it is. That’s exactly

what the -

THE COURT: Yeah, but the acts there are really

~ it’s one criminal incident. It’s not two separate days of

retarding the passage of the mail.

MS. MATTHEWS: It’s the same in terms of

identity, the same types of acts.

THE COURT: No.

MS. MATTHEWS: I mean we're talking about

transaction, criminal transaction.

OSS OL LR LTT

11

MS. ROSTEL: It is the same.

THE COURT: You have -

MS. ROSTEL: A person that is instituting, as

well as the fact that in -

THE COURT: What are you saying? You aggre-

gate [12] every time you have the same victim?

MS. ROSTEL: No, I’m talking about in terms of

figuring out what a transaction is, okay -

THE COURT: This, I don’t see how you could

ever argue that this case would be a single criminal

incident.

MS. ROSTEL: I think there are factors that you

should look to such as, and I think that the cases that look

to, that define a transaction under Rule 8A, for example,

which, first of all, the principle is that you would need to

look at a transaction in a broad way. You look at the

relationship between the acts.

THE COURT: But there is no way this is a sin-

gle - I mean I could hear you people make a severance

argument too. If you ever wanted to make a severance

argument, you'd be arguing the flip side. I mean, if they

charged him with retarding the passage of the mail, and

then some other mail related offense based on his con-

duct on one day, then you'd have it; like, I retarded the

passage of the mail, then he stole mail and then he did

whatever eise with those items of mail. Then you'd have

a single criminal incident, but not two separate days as I

see the information.

eS ee

12 13

MS. ROSTEL: I don’t think that sways, based on MR. WALDEN: Thank you, your Honor.

the fact that they are two separate days, the cases that we MR. KIRSCH: Thank you, your Honor.

cited to you indicating that they have happened on sepa-

rate days.

[13] THE COURT: It’s not even like he went

back to the same barrel of mail. I mean, I just don’t see

how the facts are in your favor under this analysis at all

in terms of analyzing it as a single criminal incident.

All right. Anything else?

MR. WALDEN: Nothing from the government,

your Honor.

MS. ROSTEL: I think our positions are stated in

the -

THE COURT: I mean, you're very interesting. |

frankly — it’s interesting. I'm going to deny your applica-

tion. I am going to say and state on the record, that I am

not going to sentence Mr. Lewis to more than six months

in prison under any circumstances pursuant to 3584. With

regard to the collateral consequences argument, I don’t

believe that the potential collateral consequences here

make 1701 a serious offense, and I find Magistrate Dol-

lenger’s opinion in the Stocosa (Ph) case exactly on point,

and I would adopt his reasoning in denying your applica-

tion on that basis. So, we'll go tomorrow -

MS. MATTHEWS: What time do we have this?

THE CLERK: It’s scheduled for 9:30.

THE COURT: All right.

14

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

x

UNITED STATES OF AMERICA,

Appellee,

, DECISION

a aed 93-CR-1342 (CBA)

RAY A. LEWIS,

Defendant-Appellant.

x

AMON, U.S. DISTRICT JUDGE

INTRODUCTION

Appellant, Ray Lewis, was convicted on February 25,

1994, after a bench trial before Magistrate Judge Azrack,

on two counts of obstructing the mail in violation of 18

U.S.C. § 1701. The appellant challenges his conviction

claiming that he was charged with a “serious” offense

and was thus constitutionally entitled to a jury trial. For

the reasons set forth below, the Court finds that appellant

was not entitled to a jury trial and his conviction is

hereby affirmed.

BACKGROUND

Appellant was charged in a two-count information

with knowingly obstructing the passage of mail in viola-

tion of 18 U.S.C. § 1701 on June 3, 1992 and on June 4,

1992. Each count carried a maximum sentence of six

months’ imprisonment, a fine of one hundred dollars and

a ten dollar special assessment.

—

15

Over appellant’s objection, the government moved

that the appellant be tried non-jury. Upon granting the

government's motion for a non-jury trial, the Magistrate

Judge stated affirmatively that if defendant was con-

victed on both counts, under no circumstances would she

impose a term of imprisonment greater than six months

pursuant to 18 U.S.C. § 3584.!

Defendant was subsequently convicted of both

counts and was sentenced to three years probation on

each count, with the sentences to run concurrently.

Defendant appeals his conviction claiming that it was

error to deny him the constitutional right to a jury trial.

DISCUSSION

In Baldwin v. New York, the Supreme Court reaffirmed

the long-standing principle that the Sixth Amendment

mandates that a defendant charged with a “serious”

offense is entitled to a trial by jury, while a defendant

charged with a “petty” offense may be tried without a

jury. Baldwin v. New York, 399 U.S. 66, 68 (1970) (plurality

opinion) (citing Duncan v. Louisiana, 391 U.S. 145 (1968)).

“In deciding whether an offense is ‘petty,’/ we have

sought objective criteria reflecting the seriousness with

which society regards the offense . . . and we have found

the most relevant such criteria in the severity of the

118 U.S.C. § 3584 provides in relevant part that “[i]f

multiple terms of imprisonment are imposed on a defendant at

the same time .. . the terms may run concurrently or

consecutively . . . Multiple terms of imprisonment imposed at

the same time run concurrently unless the court orders or the

statute mandates that the terms are to run consecutively.”

16

maximum authorized penalty.” Id. at 68 (citations omit-

ted). The Court held that a potential sentence in excess of

six months imprisonment is sufficiently severe by itself to

render an offense “serious”. Id. at 69.

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

(1989), the Supreme Court revisited the issue of distin-

guishing a serious offense from a petty offense for the

purpose of determining a defendant's right to a jury trial.

After declining to hold that an offense carrying a maxi-

mum prison term of six months or less is automatically a

“petty” offense, the Court held that such offenses are

presumed to be petty for purposes of the Sixth Amend-

ment’s right to a jury trial. The Court explained:

A defendant is entitled to a jury trial in such

circumstances 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 determination that

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

standard, albeit somewhat imprecise, should

ensure the availability of a jury trial in the rare

situation where a legislature packs an offense it

deems ‘serious’ with onerous penalties that

nonetheless do not puncture the 6-month incar-

ceration line.

Id. at 543.

The parties do not dispute that the conduct pre-

scribed by 18 U.S.C. § 1701 is a “petty” offense; however,

appellant claims that he was entitled to a jury trial

because he faced an aggregate possible sentence of 12

months imprisonment if convicted on both counts

17

charged in the information. He argues that the possibility

of receiving a sentence in excess of six months, in effect,

transformed the two petty offenses into a serious offense,

thereby guaranteeing him the constitutional right to a

jury trial. In support of his claim that aggregation of the

possible sentences is required when multiple petty

offenses are charged in the same instrument, appellant

emphasizes the Supreme Court’s focus in both Baldwin

and Bianton on an objective assessment of the seriousness

of an offense as indicated primarily by the maximum

authorized penalty.

The Supreme Court has not specifically addressed

the issue of whether or not a defendant facing multiple

counts that each carry a maximum sentence of six months

or less, but which aggregate to a potential sentence in

excess of six months imprisonment, is entitled to a jury

trial. The language of the decisions in both Baldwin and

Blanton, however, leads this Court to conclude that it is

inappropriate to aggregate the maximum penalties of

multiple petty offenses charged in the same instrument

for the purpose of determining a defendant's right to a

jury trial. In reaching this conclusion, the Court finds the

reasoning of Judge Niemeyer in his dissent in United

States v. Coppins, 953 F.2d 86 (4th Cir. 1991), persuasive.

The Supreme Court refers to a defendant's right to a

jury trial being determined by the “seriousness of the

offense”. See Baldwin v. New York, 399 U.S. at 68; Blanton v.

City of North Las Vegas, Nev., 489 U.S. at 542. “The mean-

ingful constitutional object of inquiry is the offense with

which the defendant is charged, not the accumulation of

offenses tried on a given day or on a given charging

18

document.” Coppins, 953 F.2d at 92 (J. Niemeyer, dissent-

ing). By focusing on the seriousness of the offense

charged, rather than the seriousness of defendant's over-

all conduct, the logical conclusion is that a defendant is

entitled to a jury trial only if he faces a maximum sen-

tence greater than six months for any single offense that

is charged.

The maximum authorized penalty for a given offense

is the primary objective factor to be considered in eval-

uating the seriousness of « particular offense. Blanton, 489

U.S. at 541. Recognizing that the legislature is in the best

position to determine the severity of an offense, the

Supreme Court cautioned that “[t]he judiciary should not

substitute its judgment as to seriousness for that of a

legislature, which is ‘far better equipped to perform the

task, and [is] likewise more responsive to changes in

attitude and more amenable to the recognition and cor-

rection of their misperceptions in this respect.’” Id. at

541-42 (quoting Landry v. Hoepfner, 840 F.2d 1201, 1209

(5th Cir. 1988) (en banc), cert. denied, 489 U.S. 1083 (1989)).

Similarly, the judiciary should not alter the legislature's

determination of the seriousness of an offense by con-

cluding without foundation that the legislature intended

that commission of two petty offenses would equal a

serious offense.

Appellant acknowledges that the government could

have properly charged him in two separate criminal

informations, each setting forth a single count of

obstructing the mail in violation of 18 U.S.C. § 1701, and

tried him on each count separately in different bench

trials. Appellant concedes that he would not have been

entitled to a jury trial under these circumstances even

19

though if convicted at both trials, he could have received

consecutive prison terms, which in total exceeded six

months.

Proceeding in this fashion is obviously inefficient and

provides the defendant with no greater rights or pro-

cedural protections. The Court fails to comprehend how

the administrative convenience achieved by trying multi-

ple offenses in a single proceeding alters the seriousness

of any of the charged offenses. As Judge Niemeyer so

aptly observed, “|jjudicial efficiency imposed at no

greater risk to the defendant should not change the stan-

dard for determining whether the defendant is given a

jury trial.” Coppins, 953 F.2d at 92 (dissenting).

In a related context, courts have declined to aggre-

gate penalties to determine the jurisdiction of a magis-

trate judge. Pursuant to Section 3401(a) of Title 18, a

United States Magistrate Judge has the authority to try

misdemeanor offenses. Setting forth multiple misde-

meanors in a charging instrument with the potential that

consecutive sentences in excess of a year may be imposed

does not transform these offenses into felonies and

deprive the magistrate judge of jurisdiction. See United

States v. Manjarrez-Arce, 392 F.Supp. 1046 (S.D.Ca.) (defen-

dant charged with three misdemeanor offenses could be

tried before a magistrate and upon conviction, sentenced

by the magistrate to three consecutive terms of imprison-

ment of six months each), aff'd, 504 F.2d 426 (9th Cir.

1974), cert. denied, 419 U.S. 1112 (1975). “It is the grade of

the offense, which the Congress has only addressed in

terms of the length of the maximum term of imprison-

ment, which is determinative of the magistrate’s statutory

jurisdiction.” United States v. Raynor, 764 F.Supp. 1067,

20

1070 (D.Md. 1991) (where defendant was convicted before

a magistrate on a misdemeanor offense, under 18 U.S.C.

§ 3401, the magistrate had jurisdiction to revoke defen-

dant’s supervised release even though revocation sen-

tence, when added to the original sentence, may result in

a term of imprisonment in excess of a year). Similarly, the

charging of multiple petty offenses in one instrument

does not transform them into a serious offense for the

purpose of determining a defendant's right to a jury trial.

The jurisdictional and procedural aspects of a case are

determined by the nature of each offense charged, rather

than the cumulative effect of all of the offenses charged in

the information.

This Court has reviewed the opinions which support

the appellant’s argument for aggregating the maximum

penalties of the charged offenses. In United States v. Cop-

pins, 953 F.2d 86 (4th Cir. 1991), the defendant was

charged in a single information with one count of tres-

passing on a military reservation, one count of assault by

beating an done count of simple assault after engaging in

a fight with military personnel who denied her entrance

to the military post. The majority concluded that even

though each of the charged offenses was by itself “petty”,

the defendant was entitled to a jury trial because she

faced an aggregate sentence of fifteen months for all three

counts. Similarly, in United States v. Musgrave, 695 F.Supp.

231 (W.D.Va. 1988), defendants charged with seven petty

offenses arising out of an alleged continuous conspiracy

to violate the migratory bird and game animal laws were

entitled to a jury trial because they faced a possible

aggregate sentence for all of the offenses in excess of six

months. See also United States v. O'Connor, 660 F.Supp. 955

21

(N.D.Ga. 1987) (defendant charged with two petty

offenses, driving under the influence and reckless driv-

ing, is entitled to a jury trial because he faced a potential

aggregate penalty of one year imprisonment); United

States v. Coleman, 664 F.Supp. 548 (D.D.C. 1985) (defen-

dants charged with two counts for loitering and congre-

gating around the White House wore entitled to a jury

trial where aggregate maximum penalty was one year in

prison). These decisions are not binding on this Court.

For the reasons discussed previously, the Court does not

believe that these opinions are correctly decided and

declines to follow them.

In reaching this result, the Court notes that it does

not accept as relevant the distinction the government

seeks to draw between the facts of this case and the facts

of the cases relied upon by the appellant. The govern-

ment notes that where courts have aggregated the penal-

ties, the multiple petty offenses arose out of a single

criminal incident; whereas, here the appellant is charged

with two petty offenses, each arising from a separate

criminal act. On this basis, the government maintains that

there is no authority to support the aggregation of penal-

ties of multiple petty offenses for the purpose of deter-

mining a defendant's right to a jury trial where the

offenses stem from multiple criminal incidents.

Inherent in the government's argument is the notion

that multiple petty offenses are somehow more serious

when they arise from a single criminal act than when

they stem from multiple criminal incidents. The Court

finds this distinction to be unconvincing. In fact, if one

were to distinguish at all between multiple offenses aris-

ing from a single incident and those arising from multiple

22

incidents, it is the latter category that would often be

considered more “serious”. Separate and repeated inci-

dents of criminal behavior would appear more serious

and pose a greater likelihood that the defendant would

be sentenced to consecutive terms of imprisonment than

charges arising from one criminal episode. It is therefore

not logical to distinguish between these two situations for

the purpose of deciding whether or not to aggregate the

maximum penalties of multiple petty offenses that are

charged in the same document.?

The Court holds that a defendant charged with multi-

ple offenses is entitled to a jury trial under he Sixth

Amendment only if any one of the offenses carries a

maximum sentence greater than six months.* Multiple

petty offenses charge and tried together do not entitle a

defendant to a trial by jury even if the defendant faces a

potential aggregate sentence in excess of six months.

Appellant further argues that even if the Court deter-

mines that aggregation of the maximum potential sen-

tences for each petty offense is not appropriate, he was

entitled to a jury trial because he faced the possibility of

an additional statutory penalty that rendered the offense

“serious”. Pursuant to 18 U.S.C. § 3563(b)(6), the Court

2 Appellant's argument that the offenses charged in the

information actually constituted a single criminal incident or

course of conduct, therefore need not be addressed.

Given this holding, the Court does not reach the issue of

whether the Magistrate’s pre-trial guarantee that if convicted on

both counts, defendant would not be sentenced to a term of

imprisonment greater than six months, operated to eliminate

any claim by the defendant that he is entitled to a jury trial.

23

had the authority to order appellant to give up his job as

a postal worker as a condition of a sentence of probation.

Prior to trial, Magistrate Judge Azrack concluded that

this potential additional statutory penalty did not render

the charged offense “serious”. The Court agrees with the

Magistrate’s conclusion that the additional economic pen-

alty appellant possibly faced is not sufficient to transform

the petty offense of 28 U.S.C. § 1701 into a “serious”

offense for purposes of determining the jury trial right.

In Blanton, the Supreme Court expanded the consid-

eration of objective indications of the seriousness of an

_ offense to include “any additional statutory penalties,

viewed in conjunction with the maximum authorized

period of incarceration”. Banton, 489 U.S. at 543. The

Court cautioned, however, that it would be the “rare”

occasion that the legislature would impose additional

statutory penalties that were sufficient to render an other-

wise petty offense, serious. Id.

4 In reaching this conclusion, Magistrate Azrack found

United States v. Stoklasa, 1992 WL 77550 (S.D.N.Y. 1992) (denying

defendant's application for a jury trial finding that 18 U.S.C.

§ 1701 was a “petty” offense because it provided for a maximum

sentence of six months’ imprisonment and a $5,000 fine) to be

directly on point. The court in Stoklasa rejected defendant's

argument that the potential collateral consequences of losing his

job as a postal worker transformed the offense from petty to

serious stating that such consequences “flow not from any

criminal penalty mandated by Congress, but from the policies

adopted by the United States Postal Service.” Stoklasa, at *2.

Although Stoklasa appears to reach the appropriate conclusion,

that is U.S.C. § 1701 is a “petty” offense for the purpose of

determining a defendant's right to a jury trial, the court never

considered the implication of 18 U.S.C. § 3563(b)(6) in this

determination and therefore cannot be considered controlling.

24

Most recently, the Supreme Court has held that driv-

ing under the influence of alcohol in a national park, with

a maximum penalty of six months’ imprisonment and a

fine of $5,000, was a petty offense for the purpose of

determining defendant's right to a jury trial even though

the defendant faced an alternative sentence of five years

probation. United States v. Nachtigal, 113 S.Ct. 1072 (1993).

The Court concluded:

Nor do we believe that the parole alternative

renders the DUI offense ‘serious.’ Like a mone-

tary penalty, the liberty infringement caused by

a term of probation is far less intrusive than

incarceration. The discretionary probation con-

ditions do not alter this conclusion; while they

obviously entail a greater infringement on lib-

erty than probation without attendant condi-

tions, they do not approximate the severe loss of

liberty caused by imprisonment for more than

six months.

Id. at 1074.5 The Court’s emphasis on the fundamental

difference between a sentence of incarceration and a sen-

tence of probation undermines appellant’s argument that

the potential penalty of losing his job as a condition of

probation is sufficient to render the charged offense

“serious”.

The only case appellant cites where a court round

that the additional statutory penalties rendered the

5 The Court specifically referenced the discretionary

conditions that may be imposed pursuant to 18 U.S.C. § 3563(b).

Nachtigal, 113 S.Ct. at 1074, fn.*. However, the defendant in

Nachtigal was not subject to the particular condition at issue

here, § 3563(b)(6).

25

charged petty offense, “serious”, is Richter v. Fairbanks,

903 F.2d 1202 (8th Cir. 1990). In that case, the Eighth

Circuit found that a mandatory fifteen year license

revocation, in addition to a maximum prison term of six

months, rendered a third offense DWI “serious”, thereby

affording defendant the right to a jury trial. The holding

in Richter is consistent with the language of Nachtigal and

Blanton which indicates that it is statutory penalties that

may be imposed in addition to a period of incarceration

that potentially afford a defendant the right to a jury trial

for an otherwise petty offense. See Nachigal, 113 S.Ct. at

1073; Blanton, 489 U.S. at 543. Here, the authority of the

Court pursuant to § 3563(b)(6) to order the defendant to

relinquish his job at the Post Office is only as a condition

of probation. There is no authority for the Court to man-

date his dismissal together with a term of imprisonment.

Accordingly, the potential for job loss does not render the

offense serious.

CONCLUSION

The Magistrate Judge did not err in refusing to grant

appellant a jury trial. Where a defendant is charged with

multiple petty offenses in a single document, the poten-

tial maximum sentences for the offenses should not be

aggregated for the purpose of determining whether the

individual is entitled to a jury trial. Furthermore, the

possibility of appellant being required to relinquish his

job as a postal employee as a condition of a sentence of

probation was not sufficient to render the charged

26

offenses “serious”. Therefore, appellant was not entitled

to a jury trial and his conviction is hereby affirmed.

Dated: Brooklyn, New York

December 7, 1994

/s/ Carol Bagley Amon

Carol Bagley Amon

United States

District Judge

27

UNITED STATES COURT OF APPEALS

For THE Seconp Circurt

No. 1698 - August Term, 1994

(Argued: June 20, 1995 Decided: September 5, 1995)

Docket No. 94-1701

Unitep States OF AMERICA,

Appellee,

he

Ray A. Lewis,

Defendant-Appellant.

Before:

Kearse, ALTIMAR! and PARKER,

Circuit Judges.

Appeal from a judgment of the United States District

Court for the Eastern District of New York (Amon, ].),

convicting defendant-appellant Ray Lewis, following a

bench trial, of two counts of obstructing the mails, in

violation of 18 U.S.C. § 1701.

Affirmed.

ALTIMARI, Circuit Judge:

Defendant-appellant Ray Lewis (“Lewis”) appeals

from a judgment of the United States District Court for

the Eastern District of New York (Amon, J.), convicting

him, following a bench trial, of two counts of obstructing

28

the mails. Lewis contends that he was improperly denied

a jury trial in light of the fact that the maximum potential

aggregate sentence for his two charges exceeded six

months. The district court, however, held that, for the

purpose of determining a defendant's right to a jury trial,

penalties should not be aggregated. Because Congress has

given no indication that multiple offenses are more

serious by virtue of their multiplicity than are single

offenses of the same nature, the right to a jury trial cannot

depend upon the maximum potential aggregate term of

incarceration. Accordingly, we affirm the judgment of the

district court.

BACKGROUND

Lewis, a postal worker, was charged with two counts

of obstructing the mail in violation of 18 U.S.C. § 1701.

The maximum sentence for each count was six months’

imprisonment, a hundred dollar fine and a ten dollar

special assessment. Prior to trial, the government moved

to have Lewis tried without a jury. Magistrate Judge

Azrack granted the government's motion, but stated that

she would not “sentence Mr. Lewis to more than six

months in prison under any circumstances... . ” On

February 25, 1994, Lewis was convicted of both counts

and sentenced to three years of probation on each count

to run concurrently.

Lewis appealed the denial of a jury trial to the dis-

trict court, which on December 7, 1994 affirmed Magis-

trate Judge Azrack’s determination. The district court

held that the right to a jury trial was not determined by

the severity of the sentences for the offenses in their

29

aggregate, but rather by the severity of the sentences for

each charge individually. Thus, according to the district

court, “a defendant is entitled to a jury trial only if he

faces a maximum sentence greater than six months for

any single offense that is charged.”

Lewis now appeals the determination of the district

court.

DISCUSSION

The United States Constitution provides that “[i}n all

criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury... .” U.S.

Const. amend. VI. Despite the absolute language of the

Sixth Amendment, the Supreme Court has made clear

that a jury trial is required for only those offenses that are

“serious” in nature; bench trials are sufficient for “petty”

offenses. See Duncan v. Louisiana, 391 U.S. 145, 159-62

(1968).

In order to determine whether or not an offense is

“serious,” the Supreme Court has looked to “objective

criteria.” Baldwin v. New York, 399 U.S. 66, 68 (1970) (plu-

rality opinion). According to the'Court, the best objective

indicator of the seriousness of an offense is “the severity

of the maximum authorized penalty.” Id. Implicit in the

maximum penalty is Congress's view as to the serious-

ness of that crime. See Blanton v. North Las Vegas, 489 U.S.

538, 541 (1989); Frank v. United States, 395 U.S. 147, 148

(1969). The legislature is better equipped than is the

judiciary to measure public sentiment as to the serious-

ness of respective offenses and is more responsive to

changes in the public attitude. See Blanton, 489 U.S. at

30

541-42; see also Landry v. Hoepfner, 840 F.2d 1201, 1209 (5th

Cir. 1988) (en banc), cert. denied, 489 U.S. 1083 (1989).

Thus, the maximum authorized penalty for a particular

offense is a strong indicator of the present sentiment as to

the seriousness of that crime.

While courts are instructed to look at all potential

modes of punishment for a particular offense (e.g. incar-

ceration, probation, fines, etc.), “[p]rimary empha-

sis . . . must be placed on the maximum authorized

period of incarceration.” Blanton, 489 U.S. at 542. Regard-

less of any other possible punishment, the Supreme Court

has determined that “no offense can be deemed ‘petty’

for purposes of the right to trial by jury where imprison-

ment for more than six months is authorized.” Baldwin,

399 U.S. at 69. Accordingly, any defendant facing in

excess of six months incarceration for a single offense is

entitled to a jury trial.

The question which remains unanswered by the

Supreme Court, however, is whether an individual poten-

tially facing over six months imprisonment for multiple

petty offenses is entitled to a jury trial. Those courts

which have addressed this question to date are in agree-

ment that potential sentences must be aggregated to

determine the right to a jury trial. See United States v.

Coppins, 953 F.2d 86, 90 (4th Cir. 1991); United States v.

Bencheck, 926 F.2d 1512, 1518 (10th Cir. 1991); Rife v.

Godbehere, 814 F.2d 563, 565 (9th Cir. 1987); see also United

States v. Musgrave, 695 F. Supp. 231, 233 (W.D. Va. 1988);

United States v. O'Connor, 660 F. Supp. 955, 956 (N.D. Ga.

1987); United States v. Coleman, 664 F. Supp. 548, 549

(D.D.C. 1985); United States v. FMC Corp., 428 F. Supp.

615, 620 (W.D.N.Y. 1977), aff'd on other grounds, 572 F.2d

31

902 (2d Cir. 1978). These courts reason, in essence, that

“defendants can view as no less serious a possible pen-

alty of [over six months] in prison when charged with

[multiple] offenses . . . than if charged with one offense

having a potential penalty of [greater than six

months]. ... Nor... should [a] court view the offenses

any less seriously.” Coppins, 953 F.2d at 90 (quoting United

States v. Potvin, 481 F.2d 380, 382 (10th Cir. 1973)).

We reject the reasoning of these courts. When deter-

mining a defendant's rights under the Sixth Amendment,

the mere possibility of consecutive sentences exceeding

six months’ imprisonment is insufficient to trigger a

defendant's right to a jury trial. We believe that in reach-

ing the opposite conclusion, the courts discussed above

failed to focus on the appropriate objective criteria for

determining the seriousness of multiple offenses tried

together. The Supreme Court has made clear that courts

should look to Congress’s determination as to the seri-

ousness of a particular offense. Indeed, the Court has

explicitly stated that “[t]he judiciary should not substi-

tute its judgment as to seriousness for that of [the] legis-

lature. ...” Blanton, 489 U.S. at 541. While those courts

that have previously addressed the question have focused

upon the defendant's view as to the seriousness of facing

over six months imprisonment for aggregate sentences,

the appropriate inquiry is how seriously Congress views

the offenses in the aggregate.

Congress has not indicated that multiple offenses for

which a defendant is prosecuted jointly are necessarily

any more serious in their aggregate than the most serious

individual offense. Rather, 18 U.S.C. § 3584(a) provides

that, except as mandated by court order or statute,

32

“[mJultiple terms of imprisonment imposed at the same

time run concurrently.” Thus, the presumption under

§ 3584(a) is that multiple offenses prosecuted jointly are

no more serious in their aggregate than the most serious

single offense of conviction.

Moreover, the question of Lewis's right to a jury trial

could have been obviated altogether had the government

chosen to simply charge both counts of obstructing the

mail in separate informations. While trying Lewis’s two

offenses separately would have been contrary to judicial

economy - an outcome we seek to avoid when possible -

Lewis himself admits that under such a circumstance he

would not have been entitled to a jury trial. Under § 3584,

had Lewis been convicted in separate bench trials, the

district court could have sentenced him to two terms of

imprisonment to run consecutively, thus still exposing

him to as much as a year of imprisonment. The mere fact

that the government chose to consolidate the charges

provides no greater justification for a jury trial than if the

charges were tried separately. As Judge Niemeyer wrote

in his dissenting opinion in Coppins, “|j]udicial efficiency

imposed at no greater risk to the defendant should not

change the standard for determining whether the defen-

dant is given a jury trial.” Coppins, 953 F.2d at 92

(Niemeyer, J., dissenting). We agree.

In addressing the question of aggregate penalties, the

Fourth Circuit has held that the Supreme Court's pro-

nouncement in Codispoti v. Pennsylvania, 418 U.S. 506

(1974), is determinative of the issue:

[T]here is no apparent reason why the Court's

holding in Codispoti v. Pennsylvania that consecu-

tive sentences of imprisonment actually

33

imposed for a series of contempts committed

during a single trial should be aggregated for

this purpose should not apply also to require

aggregation of any maximum sentences autho-

rized by statute where those are determinative

of the right.

Coppins, 953 F.2d at 90 (citation omitted). In Codispoti,

however, the Supreme Court addressed the question of

aggregating penalties in the context of contempt charges,

which in our view does not bear directly upon the issue

at hand.

“In criminal contempt prosecutions, ‘where no maxi-

mum penalty is authorized, the severity of the penalty

actually imposed is the best indication of the seriousness

of the particular offense.’ ” Blanton, 489 U.S. at 542 n.6

(quoting Frank, 395 U.S. at 149.) Accordingly, the only

measure of the seriousness of a particular contemnor’s

criminal acts is the entirety of the court's sentence — the

aggregate of the penalties imposed for each contemp-

tuous act —- a matter which is strictly at the court's discre-

tion, see, e.g., United States v. Local 1804-1, Int'l

Longshoremen’s Assoc., AFL-CIO, 44 F.3d 1091, 1095-96 (2d

Cir. 1995) (describing limits of court’s discretion).

Because courts cannot look to Congress’s estimation of

seriousness in the contempt context, the fact that the

Supreme Court mandated aggregation of multiple con-

tempt penalties to determine the sentence actually

imposed has no bearing on the issue at hand. While

Codispoti controls in those circumstances in which no

maximum penalty is provided by law, it does not affect

the analysis when Congress has provided a specific meas-

ure of the seriousness of a particular crime — then, as now,

34

aggregation of penalties remains an inappropriate basis

upon which to determine a defendant's right to a jury

trial.

Finally, the government argues that even if the court

were to aggregate potential sentences, Lewis was not

entitled to a jury trial because the magistrate judge

assured Lewis that the trial would result in no greater

sentence than six months’ imprisonment. While we need

not resolve this question, in light of the discussion above

it is clear that the government’s argument is unavailing.

The measure for constitutionally required jury trials is the

“seriousness” of any given offense or offenses, which is,

in turn, measured principally by the maximum punish-

ment authorized by Congress; therefore, self-imposed

limitations on sentencing by the court cannot deprive a

defendant of his constitutionally protected right to a jury

trial. But see Bencheck, 926 F.2d at 1519 (“where the trial

judge announced that the sentence, in the event of con-

viction, would be no more than six months’ incarcera-

tion . . . no jury was constitutionally required”).

CONCLUSION

Because we do not believe that Congress has indi-

cated that petty offenses are more serious in their aggre-

gate than is each petty offense unto itself, we affirm the

judgment of the district court.

35

SUPREME COURT OF THE UNITED STATES

No. 95-6465

Ray A. Lewis,

Petitioner

v.

United States

ON PETITION FOR WRIT OF CERTIORARI to the

United States Court of Appeals for the Second Circuit.

ON CONSIDERATION of the motion for leave to

proceed herein in forma pauperis and of the petition for

writ of certiorari, it is ordered by this Court that the

motion to proceed in forma pauperis be, and the same is

hereby, granted; and that the petition for writ of certiorari

be, and the same is hereby, granted. In addition to the

question presented by the petition, the parties are

directed to brief and argue the following question:

“Whether a defendant who would otherwise have a con-

stitutional right to a jury trial may be denied that right

because the presiding judge has made a pre-trial commit-

ment that the aggregate sentence imposed will not exceed

six months?” The brief of petitioner is to be filed with the

Clerk and served upon opposing counsel on or before 3

p-m., Friday, March 1, 1996. The brief of the Solicitor

General is to be filed with the Clerk and served upon

opposing counsel on or before 3 p.m., Friday, March 29,

1996. A reply brief, if any, is to be filed pursuant to Rule

25.3. Rule 29.2 does not apply.

January 19, 1996