Petitioners Brief — Lewis v. United States

. Supreme Court, U.S.

(6) >t E& D

FEB 27 1996

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

+

BRIEF FOR PETITIONER

°

Steven M. STATSINGER

THe Lecat Arp Society

FeperaAL Derenper Division

AppPeALs BuREAU

52 Duane Street, 10th Floor

New York, New York 10007

Tel. No.: (212) 285-2842

Counsel for Petitioner

Of Counsel:

Henriette D. HorrMan

Davio A. Lewis

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a defendant is constitutionally entitled

to a jury trial when he is tried on several offenses punish-

able by six months’ imprisonment or less, but the aggre-

gate maximum authorized penalty exceeds six months’

imprisonment.

2. Whether a defendant who would otherwise have

a constitutional right to a jury trial may be denied that

right because the presiding judge has made a pretrial

commitment that the aggregate sentence imposed will not

exceed six months.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...........-:00eeeeeeeees iv

CAGE o.oo cccccvncssuhésaneceseeekeunneeeee iv

CONSTITUTIONAL PROVISIONS.............+5. vi

STATUTES oc cctccccgscccdostesvecaseenseeenanes vi

OTHER AUTHORITIES .......sccccccccsccccseces vii

OPINIONS BELOW. ......cccccccccccssvcescvscscses 1

JURISDICTIONAL STATEMENT............-+--0005 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED ......csccccccscveswocsesscces 1

STATEMENT OF THE CASE...........0ccecccceees 2

SUMMARY OF ARGUMENT................-5+0055 4

ARGUMENT... cccdssccccasveccessnapeseeeeenenel 8

I. MR. LEWIS WAS ENTITLED TO A JURY TRIAL

BECAUSE THE CRIMES WITH WHICH HE WAS

CHARGED WERE “SERIOUS” WITHIN THE

MEANING OF THIS COURT’S DECISIONS

INTERPRETING THE SIXTH AMENDMENT... 8

A. The Development of the Petty/Serious Dis-

| PPE PrrrrrrrrrrrrT yr) 9

B. Mr. Lewis Was Entitled to a Jury Trial Under

Both the Objective Test and the Common-

Fp Pee 13

1. The Obhsctive Beet ..vcccecccossecescten 13

2. Tre Commons Fee. . :<cdivsteenen 24

TABLE OF CONTENTS - Continued

Page

Il. UNDER THE SIXTH AMENDMENT, THE TRIAL

JUDGE’S PRETRIAL DECISION NOT TO

IMPOSE A SENTENCE IN EXCESS OF SIX

MONTHS COULD NOT DEPRIVE MR. LEWIS

Ne cnn ccccccccccccccs 27

Ci caceGEb asencsectccccccceccccces 36

iv

TABLE OF AUTHORITIES

Page

Cases

Ashe v. Swenson, 397 U.S. 436 (1970) ...........6555. 24

Baldwin v. New York, 399 U.S. 66

GOODE + 0.00 secccccsacecsceseeseees 5, 8, 12, 18, 19, 20

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

CIDE oo cccccccccccccccessccccccntovcesceceses passim

Bloom v. Illinois, 391 U.S. 194 (1968).............. 19, 33

Brown v. Ohio, 432 U.S. 161 (1977) ..........60c 0 cues 17

Callan v. Wilson, 127 U.S. 540 (1888)......... 7, 9, 10, 26

Coates v. United States, 290 F. 134 (4th Cir. 1923) .... 21

Codispoti v. Pennsylvania, 418 U.S. 506 (1974) .... passim

Custis v. United States, 114 S.Ct. 1732 (1994)......... 15

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

GRRE sc dvccccccccccccdccsdadacentennenntssneud 11, 12

District of Columbia v. Colts, 282 U.S. 63 (1930)... 7, 11, 26

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

Faretta v. California, 422 U.S. 806 (1975) ............. 29

Gideon v. Wainwright, 372 U.S. 335 (1963)............ 30

Johnson v. Zerbst, 304 U.S. 458 (1938)................ 30

Ohio v. Johnson, 467 U.S. 493 (1984) ................. 17

Patton v. United States, 281 U.S. 276 (1930) .......... 29

Petite v. United States, 361 U.S. 529 (1960) ........... 24

Pointer v. United States, 151 U.S. 396 (1894).......... 15

v

TABLE OF AUTHORITIES - Continued

Page

Rife v. Godbehere, 814 F.2d 563 (9th Cir.), amended

by, 825 F.2d 185 (9th Cir. 1987) ................... 21

Schick v. United States, 195 U.S. 65 (1904)...... 7, 11, 28

Scott v. Illinois, 440 U.S. 367 (1979)........... 30, 34, 35

Singer v. United States, 380 U.S. 24 (1965)............ 23

United States v. Barnett, 376 U.S 681 (1964).......... 10

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

i Sbdakbide cbecctbbestudecdesbas 21, 31, 32, 33, 34

United States v. Brown, 71 F.3d 845 (11th Cir.),

petition for cert. filed, (U.S. January 16, 1996) (No.

PS 686d y0 5 cbc cube cu sdsdHautesenseressees ces 21

United States v. Coleman, 664 FSupp 548 (D.D.C.

GE Sc vesdocnedvccuegecedhbauedtees'ecpeeusvece. 21

United States v. Coppins, 953 F.2d 86 (4th Cir. 1991) . .3, 20

United States v. Doe, 743 F.2d 1033 (4th Cir. 1984) .... 34

United States v. Downin, 884 F.Supp. 1474 (E.D.Cal.

PER SNe vecvendederusinneboacecdetcnedsunsevesecs 35

United States v. FMC Corp., 428 y 615

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

Se ee EN EEE bo bSecubedndcccdbscdeetedeekcded 21

United States v. Goodwin, 457 U.S. 368 (1982) 17, 20, 23

United States v. Jackson, 605 F.2d 1319 (4th Cir.

ERS oe TE Re SARS Ee er tee meee ay 35

United States v. Lewis, 65 F.3d 252 (2d Cir. 1995)

Pe ee AS a 1, 4, 6, 21, 22, 23, 32

United States v. Musgrave, 695 F.Supp 231 (W.D.Va

Bee ooh c bn cccacnvchecstasedueledesteeutesccesons 21

vi

TABLE OF AUTHORITIES - Continued

Page

United States v. Nash, 703 F.Supp. 507 (W.D.La),

aff'd on other grounds, 886 F.2d 1312 (Sth Cir.

PPP tori tre 35

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

BOD occ ccccccccvesccvevcccccsnccsusseseubseveees 21

United States v. Ramirez, 555 F.Supp. 736 (E.D.Cal.

SOGED. oc ccccctvaccecvcncasconssnccosensecenecscess 35

United States v. Reilley, 948 F.2d 648 (10th Cir.

BODE. oc cvccessccescccvaveceucovensecesoucsencsons 34

Whalen v. United States, 445 U.S. 684 (1980).......... 17

Young v. United States ex rel. Vuitton, 481 U.S. 787

GIDE occ cccbccvccedesenss coeceebeceseenseses sect 19

CONSTITUTIONAL PROVISIONS

United States Constitution, Article III, § 2.......... 1,9

United States Constitution, Amendment V........... 15

United States Constitution, Amendment VI...... passim

STATUTES

BB UBL. © BOD 2c ccc cavecccvcscccecdéideccocccessets 25

OD UGG. © cscs ccdncctsccccasccesecvsocnsscts 1,2

BB USC. 6 TOG) 2. nccccccscccsccccccccecss.es passim

TB UGK. 6 TPG ccccvccseccccvsccccvssestecedecece 1

Act of February 20, 1792, ch. 7, § 16, 1 Stat. 232,

Z5G Gereplsed TFG)... onc ccccccccccccccccccvcesesees 26

7 Geo.3, ch. 50 (Eng.)(repealed 1888)................ 26

vii

TABLE OF AUTHORITIES - Continued

Page

ee Ms Pepundcdecbuibicndcebsoonevechan 23

Ee eb ceikcideccetéevniviniuviia 34, 35

OrHer AUTHORITIES

I William Blackstone, Commentaries.................. 14

Albert W. Alschuler & Andrew G. Deiss, A Brief

History of the Criminal Jury in the United States,

61 U. Chi.L.R. 867 (1994)

Felix Frankfurter & Thomas G. Corcoran, Petty

Federal Offenses and the Constitutional Guaranty of

Trial by Jury, 39 Harv. L.R. 917 (1926)... 9, 10, 27, 28

Rules of Procedure for the Trial of Misdemeanors

Before United States Magistrates (1980)

Rules for the Trial of Minor Offenses Before

United States Magistrates (1970).................. 34

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit is reported at 65 F.3d 252, and appears

in the Joint Appendix at J.A. 27. The unpublished opinion

of the United States District Court for the Eastern District

of New York appears in the Joint Appendix at J.A. 14. No

other opinions have been rendered.

SJ

JURISDICTIONAL STATEMENT

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

¢

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Article Ill, § 2

The Trial of all Crimes, except in Cases of

Impeachment, shall be by jury; and such Trial

shall be held in the State where the said Crimes

shall have been committed.

United States Constitution, Amendment V1

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 commit-

ie o.2-<.4

18 U.S.C. § 1701

Whoever knowingly and willfully obstructs or

retards the passage of the mail, or any carrier or

conveyance carrying the mail, shall be fined

under this title or imprisoned not more than six

months, or both.

18 U.S.C. § 3584(a)

If multiple terms of imprisonment are imposed

on a defendant at the same time, or if a term of

imprisonment is imposed on a defendant who is

already subject to an undischarged term of

imprisonment, the terms may run concurrently

or consecutively, except that the terms may not

run consecutively for an attempt and for

another offense that was the sole objective of the

attempt. 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. Multiple

terms of imprisonment imposed at different

times run consecutively unless the court orders

that the terms are to run concurrently.

S

STATEMENT OF THE CASE

Petitioner Ray A. Lewis, a mail handler, was charged

with obstructing the mail on two dates in June of 1993, in

violation of 18 U.S.C. § 1701. Each count of the two-count

information carried a maximum sentence of six months’

imprisonment, and consecutive sentences were autho-

rized pursuant to 18 U.S.C. § 3584(a). Since the aggregate

authorized penalty was 12 months’ imprisonment, Mr.

Lewis sought a jury trial. A United States Magistrate

Judge for the Eastern District of New York denied this

request. J.A. 12.1 The Magistrate Judge stipulated that she

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

in prison under any circumstances” and tried the case

without a jury. J.A. 12.

The trial evidence showed that on June 3, 1993

(Count 1), and June 4, 1993 (Count 2), Mr. Lewis removed

money from letters that he took from the mail stream and

then discarded the letters. The Magistrate Judge con-

victed Mr. Lewis of both counts, and sentenced him to

concurrent terms of three years’ probation.

Mr. Lewis appealed to the United States District

Court for the Eastern District of New York, on the ground

that the aggregate 12-month penalty entitled him to a jury

trial. The district court affirmed the conviction. In a writ-

ten opinion, the court relied on the dissenting opinion in

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

conclude that “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.” J.A. 18. Having

found that the jury trial right did not attach in this case,

the district court did not rule on the effect of the sentenc-

ing stipulation. J.A. 22.

The United States Court of Appeals for the Second

Circuit affirmed. The court recognized that those federal

courts to consider the question were unanimous in con-

cluding that the aggregate penalty authorized for a

defendant’s conduct determined whether he was entitled

1 Page citations preceded by “J.A.” refer to the Joint

Appendix.

to a jury trial. 65 F.3d at 254. Nevertheless, the court

rejected this reasoning and held that “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.”

65 F.3d at 255. The court supported this assertion by

noting that, under 18 U.S.C. § 3584(a) multiple terms of

imprisonment imposed simultaneously are presumptively

concurrent. The court viewed this as a legislative direc-

tive that “multiple offenses prosecuted jointly are no

more serious in their aggregate than the most serious

single offense of conviction.” Id.

The court also held that Mr. Lewis was not entitled to

a jury trial since “the question of [his] right to a jury trial

could have been obviated altogether” had the govern-

ment chosen to sever the two counts and prosecute them

separately. Id. Finally, the court noted that the pretrial

sentencing stipulation had no effect on the jury trial right.

“[S]elf-imposed limitations on sentencing by the court

cannot deprive a defendant of his constitutionally pro-

tected right to a jury trial.” Id. at 256.

¢

SUMMARY OF ARGUMENT

I.

Under this Court’s decisions interpreting the Sixth

Amendment, the jury trial right turns primarily on an

objective measure of the seriousness of the defendant's

conduct, as reflected by the maximum sentence autho-

rized by the legislature. If the authorized sentence

exceeds six months’ imprisonment, the offense is “serious,”

and the jury trial right attaches. Baldwin v. New York, 399

U.S. 66, 72-73 (1970) (plurality opinion). However, cases

that are “petty” under this objective test are still triable

by jury if the proscribed conduct was serious at common

law. Applying these rules here, Mr. Lewis was entitled to

a jury trial. He was tried on two counts of obstruction of

the mails, a serious offense at common law. Each count

carried a six-month maximum, and consecutive sentences

were authorized.

In multiple offense prosecutions the aggregate autho-

rized penalty determines the jury trial right. The plain

language of the jury trial provision of the Sixth Amend-

ment attaches the jury trial right to the entire “prosecu-

tion,” and not to a particular offense. Thus, when the

defendant is tried on several offenses in a single prosecu-

tion, criminal seriousness for jury trial purposes should

be determined by assessing the total authorized penalty,

as opposed to the penalty authorized for just one of the

offenses charged. If consecutive sentences are authorized,

and they aggregate to more than six months’ imprison-

ment, the jury trial right attaches.

The authorized penalty is the most accurate measure

of criminal seriousness for Sixth Amendment purposes

because it represents the best measure of society’s judg-

ment concerning the impact of the defendant's conduct.

Blanton v. City of North Las Vegas, 489 U.S. 538, 541 (1989).

This rationale accordingly mandates an aggregation rule.

Society suffers a greater harm from someone who has

committed two crimes on two occasions than from some-

one who has committed one crime on one occasion. Thus,

when consecutive sentences are authorized, the aggregate

penalty is a better reflection of society’s judgment than is

the statutory maximum for any single offense charged.

This conclusion is supported by the Court’s decision

in Codispoti v. Pennsylvania, 418 U.S. 506, 516-17 (1974). In

that case, the Court held that, in a criminal contempt

prosecution, the aggregation of several petty penalties

imposed after a single trial rendered the prosecution

serious and required a jury trial. Since the core constitu-

tional principles underlying the right to a jury trial are

the same in criminal contempt cases and in statutory

offense cases, the aggregation rule of Codispoti should

apply to statutory offense cases as well.

The Second Circuit’s contrary conclusion must be

rejected. The court incorrectly viewed 18 U.S.C. § 3584(a),

the statute authorizing consecutive sentences in this case,

as reflecting a congressional determination that multiple

petty offenses “prosecuted jointly are no more serious in

their aggregate than the most serious single offense of

conviction.” United States v. Lewis, 65 F.3d 252, 255 (2d

Cir. 1995). In fact, Congress’s express decision to autho-

rize consecutive sentences flatly contradicts this reason-

ing. The court below also incorrectly reasoned that,

because the prosecutor could have eliminated the need

for a jury trial by trying the two counts separately, no

jury trial was required. That the counts could have been

severed is irrelevant to whether the jury trial right

attached to a trial in which the counts were joined.

Alternatively, even assuming that the Court rejects an

aggregation rule for statutory offense cases, Mr. Lewis

was entitled to a jury trial under the traditional common-

law test. The conduct for which he was prosecuted was a

felony at common law, and was punishable by death.

Accordingly, the charged offenses were serious for jury

trial purposes irrespective of the authorized sentence.

District of Columbia v. Colts, 282 U.S. 63, 71 (1930); Callan

v. Wilson, 127 U.S. 540, 556 (1888).

Both in common-law England and colonial America

the only offenses triable without a jury were those so

designated by the legislature. Courts had no power to

extinguish the jury trial right once it had been conferred

by the legislature. Schick v. United States, 195 U.S. 65, 80

(1904) (Harlan, J., dissenting). Consistent with this tradi-

tion, this Court’s jury trial cases have uniformly

embraced the position that the determination of criminal

seriousness is exclusively the domain of the legislature.

Blanton v. City of North Las Vegas, 489 U.S. at 541-42. It is

for this reason that the sentence actually imposed does

not determine the jury trial right. Duncan v. Louisiana, 391

U.S. 145, 159-60 (1968). It follows from this that a judge’s

pretrial sentencing stipulation is likewise incapable of

extinguishing the jury trial right. If the judge cannot

negate the legislative determination of criminal serious-

ness after the trial, when fully informed of the facts and

circumstances of the case, he or she certainly cannot do so

before the trial, when the case has not yet been heard. See

Duncan, 391 U.S. at 159-60; Blanton, 489 U.S. at 544.

S

ARGUMENT

I. MR. LEWIS WAS ENTITLED TO A JURY TRIAL

BECAUSE THE CRIMES WITH WHICH HE WAS

CHARGED WERE “SERIOUS” WITHIN THE

MEANING OF THIS COURT’S DECISIONS INTER-

PRETING THE SIXTH AMENDMENT.

Petitioner Ray A. | ewis was tried on two counts of

obstructing the mail, each of which carried a possible

sentence of six months’ imprisonment and a fine. Under

18 U.S.C. § 3584(a), which authorized consecutive sen-

tences in this case, the maximum possible penalty was 12

months’ imprisonment. Under these circumstances, he

was unconstitutionally denied a jury trial. The plain lan-

guage of the Constitution’s jury trial guarantees and this

Court’s recent jury trial decisions indicate that the jury

trial right is contingent on the aggregate penalty a defen-

dant faces. Since the maximum authorized penalty for

Mr. Lewis’s criminal conduct exceeded six months’

imprisonment, a serious criminal sanction, Mr. Lewis was

entitled to a jury trial. Blanton v. City of North Las Vegas,

489 U.S. 538, 542 (1989); Baldwin v. New York, 399 U.S. 66,

72-73 (1970) (plurality opinion); see also Codispoti v. Penn-

sylvania, 418 U.S. 506, 517 (1974). Alternatively, since the

common-law crimes closest to Mr. Lewis’s conduct were

serious felonies, some punishable by death, Mr. Lewis

was entitled to a jury trial irrespective of the maximum

authorized penalty.

9

A. The Development of the Petty/Serious Distinc-

tion.

Article Ill, § 2, of the United States Constitution

guarantees a jury in the “Trial of all Crimes, except in

Cases of Impeachment”; the Sixth Amendment provides

for a jury trial in “all criminal prosecutions.” Despite the

unyielding language of these provisions, this Court has

long held that the jury trial guarantee applies only to

“serious” prosecutions, and that there is a small category

of “petty” cases for which the constitution does not

require a trial by jury. See Callan v. Wilson, 127 U.S. 540,

557 (1888).

At common law, all criminal cases, without excep-

tion, were tried before a jury. Felix Frankfurter & Thomas

G. Corcoran, Petty Federal Offenses and the Constitutional

Guaranty of Trial by Jury, 39 Harv. L.R. 917, 923-24 (1926).

However, from the sixteenth century on, successive gen-

erations of Parliaments enacted laws permitting various

types of offenses to be summarily disposed of without a

jury, to ease the overcrowding of the courts. Id. at 928-33.

Although usually petty, the offenses that could be tried

summarily were not of any particular class, and indeed in

a few rare situations offenses carrying very serious sanc-

tions were exempted from trial by jury. Jd. For all such

offenses, it was the legislature, and not the court, that

determined whether an exemption from trial by jury was

appropriate. Id. at 927.

The American colonists embraced the jury trial right

as it had been known at common law. Frankfurter &

10

Corcoran, supra, at 927. In keeping with their common-

law antecedents, colonial legal systems prosecuted cer-

tain petty offenses summarily, without juries. Id. at 938-65

(discussing the relevant statutes of seven of the original

colonies). These petty offenses were generally victimless

breaches of local standards of morality, such as profanity,

drunkenness and breaking the sabbath (see, ¢.g., id. at 944,

950) or other small-scale regulatory offenses (see, e.g., id.

at 945, 951). See generally United States v. Barnett, 376 U.S

681, 749-50 (1964) (Goldberg, J., dissenting). As in Eng-

land, the jury trial right was extinguishable by the legisla-

ture for these categories of offenses, but judges had no

power to deny an individual defendant a jury trial in a

case where it was authorized. Frankfurter & Corcoran,

supra, at 965-68.

This Court has long held that the framers intended to

incorporate the distinction between petty and serious

offenses into the Constitution, and that only serious crim-

inal prosecutions are covered by the Sixth Amendment

jury trial guarantee. Callan v. Wilson, 127 U.S. at 555. Prior

to 1968, when Duncan v. Louisiana was decided, the Court |

looked primarily to the legislative characterization of a

particular offense at common law in making this deter-

mination.

Callan was the first case in which the Court distin-

guished between petty and serious offenses for the pur-

poses of the Sixth Amendment jury trial right. In Callan,

the defendant was convicted of conspiracy at a summary

proceeding, and was sentenced to a $25 fine or 30 days in

jail. 127 U.S. at 540. The Court acknowledged that there

was a class of petty cases that could be constitutionally

tried without a jury, but concluded that a conspiracy

11

prosecution was not one of them because conspiracy was

an “infamous crime,” and hence indictable by grand jury,

at common law. Id. at 556. The Court also used a com-

mon-law analysis in District of Columbia v. Colts, in which

the defendant was charged with reckless driving “at a

greater rate of speed than twenty-two miles an hour.” 282

U.S. 63, 71 (1930) (citation omitted). Without reference to

the maximum penalty, the Court found the offense of

reckless driving to be serious since it was “an indictable

offense at common law.” Id. at 73.

When this common-law test of seriousness could not

easily be applied, or resulted in a determination that the

defendant's conduct was petty, the early decisions of this

Court also examined the authorized penalty to determine

whether a jury trial was required. For example, in Schick

v. United States, 195 U.S. 65, 67-68 (1904), the Court con-

sidered both the moral quality of the charged conduct

(since the offense had no common-law equivalent) and

the authorized punishment, before finding the offense

petty. Similarly, in District of Columbia v. Clawans, 300 U.S.

617 (1937), the Court first found the defendant's conduct

petty under the common-law test. “Engaging in the busi-

ness of selling secondhand property without a license

was not indictable at common law.” Id. at 625. The Court

went on to consider whether the maximum authorized

penalty for the offense - 90 days’ imprisonment - was

nevertheless “sufficient to bring it within the class of

major offenses, for the trial of which a jury may be

demanded.” Id. It concluded that it was not. Id. at 625-27.

With the increasing complexity of modern criminal

codes, the common-law test has become more difficult to

apply. Blanton, 489 U.S. at 541 n.5. Moreover, in 1968, the

12

Court held that the Sixth Amendment jury trial right was

applicable in state, as well as federal prosecutions, thus

making the right available in the widely disparate judicial

systems of the several states. Duncan, 391 US. at 149.

Apparently in light of these developments, the Duncan

Court followed Clawans in resorting primarily to “objec-

tive criteria,” in particular the maximum authorized pen-

alty, to determine whether a given prosecution was

serious, and thus subject to the jury trial requirement. 391

U.S. at 161. The Court held that “the penalty authorized

for a particular crime is of major relevance in determining

whether it is serious or not and may in itself, if severe

enough, subject the trial to the mandates of the Sixth

Amendment.” Id. at 159 (citing Clawans); see also Blanton,

489 U.S. at 542. The Court did not abandon the common-

law test it had previously applied, but made that test

subsidiary to the search for an objective measure of the

seriousness of the prosecution —- the maximum punish-

ment authorized for the offense. 391 U.S. at 159. Subse-

quently, in Baldwin v. New York, 399 U.S. at 72-73, the

Court held that under this objective test any offense

punishable by more than six months’ imprisonment is

serious and must receive a jury trial.

This objective test remains faithful to the constitu-

tional underpinnings of the jury trial right because it

embodies the bedrock historical principle that the legisla-

ture’s determination of criminal seriousness is inviolate.

However, criminal conduct that is found to be petty

under the objective test must still be analyzed under the

common-law test. “Crimes carrying possible penalties up

to six months do not require a jury trial if they otherwise

13

qualify as petty offenses.” Duncan, 391 U.S. at 159 (cita-

tion omitted). Only conduct found to be petty under both

tests can be tried without a jury.

B. Mr. Lewis was Entitled to a Jury Trial Under

Both the Objective Test and the Common-Law

Test.

The maximum authorized penalty for each count

with which Mr. Lewis was charged was six months’

imprisonment, a penalty that is presumptively petty.

Blanton, 489 U.S. at 543. However, since 18 U.S.C.

§ 3584(a) authorized consecutive sentences, the maximum

authorized penalty for Mr. Lewis’s criminal conduct was

12 months’ imprisonment, a serious criminal sanction.

Blanton, 489 U.S. at 542; Baldwin, 399 U.S. at 72-73; see also

Codispoti v. Pennsylvania, 418 U.S. 506, 517 (1974). More-

over, the common-law crimes closest to Mr. Lewis's con-

duct were serious felonies, some punishable by death.

Accordingly, under both the objective test and the com-

mon-law test of criminal seriousness, Mr. Lewis was enti-

tled to a jury trial.

1. The Objective Test.

The plain language of the Sixth Amendment, the

rationale for the objective test of criminal seriousness

itself, and this Court's jury trial decisions all indicate that

the total authorized penalty in a multiple-offense pros-

ecution determines whether a jury trial is constitutionally

required.

14

Historically, this Court’s decisions in this area have

analyzed cases in which the defendant was tried on a

single offense. Thus, although the doctrine exempting

from jury trials most offenses carrying a maximum pen-

alty of six months or less has come to be known as the

“petty offense” exception, that is so only because in each

of the Court’s prior cases the parameters of the offense

and the prosecution were the same. However, when the

defendant is charged with several offenses in a single

prosecution, the plain language of the Sixth Amendment

requires that the aggregate penalty be the basis for deter-

mining whether a jury trial is required.

The Sixth Amendment guarantees a jury trial not for

a particular “offense,” but rather “[i}]n all criminal pros-

ecutions.” Since this provision attaches the right to the

“prosecution,” and not the “offense,” by its very terms

the jury trial right is contingent on the seriousness of the

entire prosecution. The facial meaning of the term “pros-

ecution” was no different at the time of the adoption of

the Sixth Amendment than it is now. Then, as now, the

term was used to refer to the proceeding in which the

accused was brought to trial, and was thus a different,

and broader, concept than that of the offense with which

he was charged. See | William Blackstone, Commentaries

*268 (describing “prosecutions for offences”) (emphasis

added). It is also clear that the framers would have

understood the term “prosecution” to include a trial at

which misdemeanors were joined. While at common law

the joinder of felonies was disfavored, and the judge

could require the prosecution to elect only one to proceed

15

upon, “this practice ha[d] never been extended to misde-

meanors.” Pointer v. United States, 151 U.S. 396, 402 (1894)

(citation and internal quotation marks omitted).

Finally, the other rights enumerated in the Sixth

Amendment - speedy trial, public trial, confrontation,

compulsory process and counsel — attach to the trial itself,

not just to a particular offense. Had the framers intended

anything different for the jury trial right they would have

said so. They clearly knew how to attach a right to certain

“offences.” In the Fifth Amendment, they limited the

right to be tried on an indictment to certain categories of

offenses — “capital, or otherwise infamous crime[s].” Sim-

ilarly, the Double Jeopardy Clause applies not to all suc-

cessive prosecutions, but only those involving the “same

offence.” Had the Sixth Amendment likewise been

intended to attach to an individual offense it would have

so stated. That it does not provides a strong “negative

implication” that the framers did not intend the jury trial

right to operate in this way. Cf. Custis v. United States, 114

S.Ct. 1732, 1736 (1994) (interpreting 18 U.S.C. § 924(e)).

Accordingly, since the nature of the prosecution

determines the jury trial right, it is constitutionally irrele-

vant that none of the individual offenses in a multi-

offense prosecution carries an authorized penalty greater

than six months’ imprisonment. If the aggregate penalty

authorized at a single trial exceeds six months, the defen-

dant is subject to a serious criminal sanction and is enti-

tled to a jury trial; if it does not, then the case can be tried

by the judge alone.

16

An aggregation rule is also consistent with the ratio-

nale for the objective test, under which society's judg-

ment is deemed to be best reflected by the maximum

authorized penalty. Blanton, 489 U.S. at 541. In multiple-

offense prosecutions, the relevant societal judgment is

embodied in statutes such as 18 U.S.C. § 3584(a), which

authorize consecutive sentences. This authorization

reflects a legislative determination that the offender's

total conduct is as serious as the aggregate penalty autho-

rized for all of the offenses charged.

Indeed, this Court has indicated that statutes such as

18 U.S.C. § 3584(a), which affect the total sentence in the

case, are relevant to whether the prosecution is serious. In

Blanton, the Court noted that “any additional statutory

penalties” should be considered in determining criminal

seriousness. 489 U.S. at 543. Although Blanton referred to

the additional penalties authorized for a particular single

offense, 18 U.S.C. § 3584(a) authorizes a closely related

type of additional penalty - a sentence that is the sum of

all the maximum sentences for each charged offense in

the prosecution. It is thus an “additional statutory pen-

alty” that attaches to the prosecution as a whole, instead

of to a particular offense.

Considering § 3584(a) as an “additional statutory

penalty” for jury trial purposes is fully consistent with

Duncan's emphasis on the importance of society’s assess-

ment of the seriousness of the defendant's transgression.

Society is affected by, and hence judges, a defendant's

conduct as a whole; it does not break it down into

17

“offenses.”? Thus, in multiple-offense prosecutions, soci-

ety’s judgment is not accurately reflected in the statutory

maximum for any single offense charged; it is best

reflected in the statutory provision providing for consec-

utive sentences.

Treating the total punishment permitted by statute as

the relevant measure of societal judgment for jury trial

purposes is also consistent with constitutional principles

in related areas. In the Double Jeopardy context, for

example, the question whether a defendant has been

“twice punished” for Double Jeopardy purposes revolves

around the total punishment the legislature has autho-

rized for the defendant's conduct; as long as multiple

penalties are permitted by statute, even if applied to the

very same conduct, the Double Jeopardy Clause has not

been violated. See Ohio v. Johnson, 467 U.S. 493, 499 & n.8

(1984); Whalen v. United States, 445 U.S. 684, 688-89 (1980);

Brown v. Ohio, 432 U.S. 161, 165 (1977). Implicit in this

doctrine is an understanding that the legislative authori-

zation for “double punishment” is an appropriate reflec-

tion of society’s norms. Similarly, since the jury trial right

turns on society’s judgment of all of the defendant's

conduct, in a multiple petty offense prosecution, that

2 Indeed, the particular offense or offenses with which a

defendant is charged is an artificial decision made by a local

prosecuting agency. Often this decision takes into consideration

a variety of administrative factors, such as court crowding and

staffing concerns, that are extraneous to society’s judgment of

the underlying criminal conduct. See United States v. Goodwin,

457 U.S. 368, 382 n.14 (1982) (discussing practical restraints on

prosecutors).

18

judgment is best reflected by the aggregate penalty

authorized by the legislature.

In fact, in only a slightly different context, this Court

already has adopted an aggregation rule. In Codispoti v.

Pennsylvania, 418 U.S. at 506, the defendant was convicted

at a single non-jury trial of several petty criminal con-

tempts. He received consecutive petty sentences of six

months’ imprisonment or less on each contempt, for a

total of 39 months’ imprisonment. Id. at 509. This Court

reversed on the ground that, in light of the aggregate

penalty, the defendant “was tried for what was equiva-

lent to a serious offense and was entitled to a jury trial.”

Id. at 516-17. Under Codispoti, the aggregation of multiple

petty offenses renders a prosecution serious for jury trial

purposes.

Nor is the Codispoti rule limited to criminal contempt

cases.* Although aspects of the jury trial right in con-

tempt cases differ from those in statutory offense cases,

the root constitutional principle — serious prosecutions

must be tried by a jury — and the six-month cut off point

are the same. “[I]n terms of those considerations which

make the right to jury trial fundamental in criminal cases,

there is no substantial difference between serious con-

tempts and other serious crimes.” Codispoti, 418 U.S. at

3 In fact, the aggregation principle endorsed by Codispoti

explicitly derives from Baldwin. See Codispoti, 418 U.S. at 512 &

n.4. Moreover, in Blanton, both Baldwin and Codispoti are cited in

support of the general principle that “a potential sentence in

excess of six months’ imprisonment is sufficiently severe to take

the offense out of the category of ‘petty.’ ” Blanton, 489 U.S. at

543 n.7 (citation omitted).

19

516 (citations and internal quotation marks omitted).*

Thus, just as the aggregate penalty turned a multiple

petty offense prosecution into a serious one for jury trial

purposes in Codispoti, so should it in multiple statutory

offense prosecutions, such as that faced by Mr. Lewis.

There are two other decisions of this Court that sup-

port the view that the jury trial right is determined by the

aggregate penalty exposure resulting from the entire

prosecution. Baldwin v. New York voided a statute elim-

inating jury trials in all cases brought in the New York

City Criminal Court, noting that this statute was unique

in the country in “den[ying] an accused the right o

interpose between himself and a possible prison term of

over six months, the commonsense judgment of a jury of

his peers.” 399 U.S. at 72 (emphasis added) (footnote

4 Because criminal contempt traditionally does not carry a

statutory maximum set by the legislature, this Court has

identified the penalty actually imposed as the most relevant

measure of society’s judgment of a contemnor’s conduct for jury

trial purposes. Bloom v. Illinois, 391 U.S. 194, 211 (1968). That this

Court equates the penalty actually imposed in contempt cases

with the authorized maximum in statutory offense cases only

bolsters the conclusion that the aggregation rule of Codispoti

should apply in statutory offense cases. When the judge

determines the sentence in a contempt case, he or she is doing

nothing more than determining the seriousness of conduct

affecting the judicial function. See Young v. United States ex rel.

Vuitton, 481 U.S. 787, 795-96 (1987). This is the same judgment

that legislatures exercise in authorizing penalties for statutory

offenses. Thus, if the “legislative” judgment of the judge in a

contempt case that consecutive sentences are warranted triggers

a jury trial for offenses that would otherwise be petty, so should

the identical judgment of the legislature in statutory offense

cases.

20

omitted). Baldwin held that a defendant is entitled to a

jury trial whenever “what is at stake is the deprivation of

individual liberty for a period exceeding six months,”

regardless of the nature of the individual charges that

make up the prosecution. Id. Thus, under Baldwin, a jury

trial can constitutionally be dispensed with only where

“the accused cannot possibly face more than six months’

imprisonment.” Id. at 73 (emphasis added); see also Codi-

spoti, 418 U.S. at 512 n.4 (noting that jury trial required

when “term of imprisonment authorized” exceeds six

months).

That an aggregation rule is constitutionally required

is also suggested by United States v. Goodwin, 457 U.S. at

368. There, the defendant was charged with several

offenses arising out of a single course of conduct. No

single offense carried a penalty in excess of six months’

incarceration, but the aggregate authorized penalty was

28 months in prison. 457 U.S. at 387 & n.1 (Brennan, J.,

dissenting). In analyzing the defendant’s due process

argument that he was penalized for insisting on a jury

trial, this Court assumed that he was constitutionally

entitled to a jury trial. Jd. at 382-83. Indeed, the dissenting

opinion specifically noted that the defendant had invoked

his “statutory and constitutional right to a trial by jury.” Id.

at 387 (Brennan, J., dissenting) (emphasis in original).

Consistent with this Court’s broad conception of the

jury trial right, the overwhelming majority of the lower

federal courts to consider the question have concluded

that the Constitution requires a jury trial in any multiple-

offense trial at which the defendant's aggregate autho-

rized penalty exceeds six months’ imprisonment. Three

courts of appeal have so held. United States v. Coppins, 953

21

F.2d 86 (4th Cir. 1991); United States v. Bencheck, 926 F.2d

1512 (10th Cir. 1991); Rife v. Godbehere, 814 F.2d 563 (9th

Cir.), amended by, 825 F.2d 185 (9th Cir. 1987).° Further-

more, four district courts have reached the same conclu-

sion. United States v. Musgrave, 695 F.Supp. 231 (W.D. Va.

1988); United States v. O'Connor, 660 F.Supp. 955 (N.D. Ga.

1987) (exercising appellate jurisdiction from a decision of

a United States Magistrate Judge, pursuant to 18 U.S.C.

§ 3402); United States v. Coleman, 664 F.Supp. 548 (D.D.C.

1985); United States v. FMC Corp., 428 F.Supp. 615

(W.D.N.Y. 1977), aff'd on other grounds, 572 F.2d 902 (2d

Cir. 1978). Only the lower courts in the instant case and a

recent decision of the Eleventh Circuit, United States v.

Brown, 71 F.3d 845 (11th Cir.), petition for cert. filed, (U.S.

January 16, 1996) (No. 95-7422) (relying on Lewis), have

held otherwise.

The reasons advanced by the Second Circuit for

rejecting an aggregation rule do not withstand constitu-

tional scrutiny. The court’s primary justification was its

misreading of 18 U.S.C. § 3584(a). This section states that

“[m]ultiple terms of imprisonment imposed at the same

time” are presumptively concurrent unless the sentencing

judge specifies otherwise. From this, the court of appeals

inferred a congressional judgment that “multiple offenses

prosecuted jointly are no more serious in their aggregate

than the most serious single offense of conviction.” 65

F.3d at 255.

> In fact, the Fourth Circuit first so held over 70 years ago.

Coates v. United States, 290 F. 134 (4th Cir. 1923).

22

The text of § 3584(a) itself proves the court of appeals

wrong. The statute unambiguously authorizes consecu-

tive sentences in multiple-offense prosecutions, a clear

manifestation of Congress’s judgment that someone who

commits two or more crimes is a worse miscreant than

someone who commits only one. For jury trial purposes,

it is irrelevant that under this section the sentencing court

must explicitly order the sentences to run consecutively

in a multiple-offense case, just as it is irrelevant that the

court must explicitly announce the imposition of a partic-

ular sentence in rendering its judgment in a single-

offense case. In determining whether a defendant is enti-

tled to a jury trial, the reviewing court must “assume[]

that a defendant . . . would receive the maximum autho-

rized prison sentence,” regardless of what the sentencing

court actually says or does. Blanton, 489 U.S. at 544

(emphasis in original). Only this method of analysis pro-

vides the appropriate measure of the legislature’s judg-

ment as to the seriousness of the defendant's conduct.

The Second Circuit also rationalized the denial of a

jury trial in this case by observing that 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 informa-

tions” and tried them separately. 65 F.3d at 255. But that

the two counts could have been severed has no bearing on

the constitutional requirements of a trial at which they

were not severed. Cf. Codispoti, 418 U.S. at 517.6 That the

6 Under the court of appeals’s reasoning, if taken to its

logical extreme, a jury trial could be denied in almost any

prosecution, even for a serious felony, as long as the prosecution

23

government is capable of prosecuting a case as a petty

offense does not affect the constitutional analysis of a

prosecution that is itself serious. This Court does not

make constitutional rules on the assumption that the

government will extend itself wherever possible to cir-

cumvent the Bill of Rights. Indeed, in Singer v. United

States, 380 U.S. 24 (1965), this Court declined to hold that

the fact that Fed. R. Crim. P. 23(a) would allow the

government to withhold its consent to a defendant's

waiver of a jury trial for an “ignoble purpose” rendered

the rule unconstitutional. Id. at 37.

Moreover, contrary to the Second Circuit's expecta-

tions, it is unlikely that prosecutors will choose to pros-

ecute otherwise joinable misdemeanors serially. Even

assuming that the manipulation of multiple counts solely

to avoid a jury trial is not a due process violation (but see

Goodwin, 457 U.S. at 380 n.11), there is little reason to

assume that the government will do so. As the court

below pointed out, conducting successive bench trials is

“contrary to judicial economy.” 65 F.3d at 255. Moreover,

by severing joinable counts, the government forfeits the

distinct tactical advantage of having the finder of fact

hear evidence that the defendant has committed two or

more crimes, not just one. In fact, putting aside any

tactical considerations, both sides benefit from, and

should prefer, a jury trial. Goodwin, 457 U.S. at 383 n.18.”

represented that it “could have” reduced the charge to a petty

offense for which no jury trial would be required, but elected

not to do so.

7 The aggregation question frequently arises in cases in

which the multiple charges have arisen from a single

24

The objective test of criminal seriousness articulated

by Duncan, Baldwin, and Blanton looks to the maximum

authorized penalty as a reflection of society’s judgment

concerning the seriousness of a defendant's criminal con-

duct. In multiple-offense prosecutions for which consecu-

tive sentences are authorized, that judgment is best

measured by the aggregate penalty to which the defen-

dant is exposed. Since Mr. Lewis faced an aggregate

sentence of 12 months’ imprisonment, a serious criminal

sanction, he was entitled to a jury trial.

2. The Common-Law Test.

Even if this Court concludes that the Sixth Amend-

ment does not require aggregating the potential penalties

at a multiple-offense trial, Mr. Lewis was nevertheless

entitled to a jury trial, since the crimes with which he was

charged were serious at common law. Although this

Court has not applied the common-law test in its recent

decisions, that test has never been repudiated.® In fact,

Duncan, the progenitor of the modern objective test,

transaction. In such cases, it is even less likely that successive

prosecutions would be possible. Justice Department policy

requires that all charges arising from a single transaction be

“alleged and tried together and should not be made the basis of

multiple prosecutions.” Petite v. United States, 361 U.S. 529, 530

(1960) (per curiam) (citation omitted). Moreover, double

jeopardy considerations will preclude certain successive

prosecutions irrespective of the Petite policy. See Ashe v.

Swenson, 397 U.S. 436 (1970).

8 Blanton describes the Court's cases as “mov[ing] away”

from the common-law test of criminal seriousness, but does not

reject it. 489 U.S. at 541 n.5.

25

explicitly incorporates the common-law test as an alterna-

tive basis for finding criminal seriousness when the

authorized penalty for an offense is six months or less.

391 U.S. at 159. More recently, the Advisory Committee

that drafted the 1980 Rules of Procedure for the Trial of

Misdemeanors Before United States Magistrates noted the

continuing viability of the Common-Law Test.

[T}he definition of a ‘petty offense’ in 18 U.S.C.

§ 1(3), ‘any misdemeanor, the penalty for which

does not exceed imprisonment for a period of

six months or a fine of not more than $500 or

both,’ will usually but not inevitably apply here.

The Supreme Court has recognized the histori-

cal difference in treatment accorded petty

offenses and has excluded them from the

requirement that the trial of ‘crimes’ be by

jury. . . . Nevertheless, certain offenses have tradi-

tionally been considered ‘crimes’ at common law, and

are still such even though the maximum penalty

currently prescribed by law is not more than six

months imprisonment or a fine of $500. That is, the

penalty prescribed is of major relevance in

determining whether an offense is petty in the

constitutional sense, but is not the sole criterion;

the historical antecedents of the offense and the

ethical condemnation with which the commu-

nity views the offense are also important.

1980 Rules of Procedure for the Trial of Misdemeanors

Before United States Magistrates (Advisory Committee's

Note) (citations omitted) (emphasis added).

Theft from the mails is one of those modern offenses

that was clearly serious at common law; such conduct

must thus be tried by a jury irrespective of the authorized

penalty. Duncan, 391 U.S. at 159. On two occasions in June

26

of 1993, Mr. Lewis allegedly stole money from mail that

he handled in the course of his employment as a postal

worker. Although he was charged with misdemeanors, at

common law the identical conduct was extremely serious.

Under a 1766 English statute, a person who stole from the

mails was “deemed guilty of felony.” 7 Geo.3, ch. 50, § II

(Eng.) (repealed 1888). The penalty was “death as a felon,

without benefit of clergy.” Id. A postal employee who

destroyed mail, or who failed to turn over monies

received as payment for postage, was likewise “deemed

guilty of felony,” although this particular offense was not

a capital crime. Id. at § IV.

The colonists took a similarly hostile view of theft

from the mails. In 1792, the Second Congress enacted

legislation that established a federal post office and post

roads. Under this statute, the theft of money or monetary

instruments from the mail was also punishable by death.

Act of February 20, 1792, ch. 7, § 16, 1 Stat. 232, 236

(expired 1799).

As these statutes demonstrate, at common law, theft

from the mails was “an offence of a grave character.”

Callan, 127 U.S. at 556. The mere designation of the con-

duct as a “felony” rendered it indictable. Under this

Court's precedents, therefore, theft from the mails is not a

petty offense. Id.; Colts, 282 U.S. at 73. Accordingly, under

the common-law test, Mr. Lewis was charged with

serious offenses and was entitled to a jury trial irrespec-

tive of the maximum authorized penalty. Duncan, 391 U.S.

at 159.

27

For the foregoing reasons, under both the objective

test and the common-law test, Mr. Lewis was entitled to a

jury trial.

Il. UNDER THE SIXTH AMENDMENT, THE TRIAL

JUDGE'S PRETRIAL DECISION NOT TO IMPOSE

A SENTENCE IN EXCESS OF SIX MONTHS

COULD NOT DEPRIVE MR. LEWIS OF A JURY

TRIAL.

The historical and political origins of the jury trial

right demonstrate that there is no constitutional basis for

allowing the judge to extinguish the right to a jury trial

by promising to impose a particular sentence. The right to

a jury trial has always been determined by legislative

enactment, and not by the ruling of an individual judge.

This Court’s cases have uniformly respected this rule,

and have consistently relied on legislative classifications

in determining whether the jury trial right attaches. Thus,

since the legislative classification of criminal seriousness

cannot be modified by the trial judge (Blanton v. City of

North Las Vegas, 489 U.S. 538, 541-42 (1989)), the Magis-

trate Judge’s promise not to sentence Mr. Lewis to more

than six months in prison did not extinguish his right to a

jury trial.

At common law, the offenses that could be tried

summarily usually, but not always, carried petty penal-

ties; in a few rare situations, crimes carrying very serious

sanctions were exempted from trial by jury. Frankfurter &

Corcoran, supra, 928-33. The one thing all such offenses

had in common, however, was that the authority to try

28

them without a jury was expressly provided by the legis-

lature. At common law, only a legislative act could extin-

guish the jury trial right. Id. at 927. The judge presiding

over a particular case had no independent power to do

so. See Schick v. United States, 195 U.S. 65, 80 (1904)

(Harlan, J., dissenting):

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

case in England in which, after Magna Charta

and prior to the adoption of our Constitution, a

court, tribunal, officer, or commissioner has,

without a jury, even in the case of a petty

offense, determined the question of crime or no

crime, when the defendant pleaded not guilty,

unless the authority to do so was expressly conferred

by an act of Parliament.

Id. (emphasis in original).

Colonial legal systems also prosecuted petty offenses

summarily, without juries. See Frankfurter & Corcoran,

supra, at 938-65 (collecting the relevant statutes of seven

of the original colonies). As in England, the right was

extinguishable by the legislature for these categories of

offenses, but judges had no power to deny an individual

defendant a jury trial in a case where it was authorized.

Id. at 965-68. Indeed, so ingrained was this principle that

Justice Harlan’s dissent in Schick went so far as to assert

that no court, not even this Court, could deem an offense

triable without a jury absent an explicit congressional

designation that a jury trial was not required. 195 U.S. at

98-99.

To the framers of the Constitution, the right to trial

by jury was more than a procedural right intended to

benefit a particular defendant; it was one of the most

29

cherished structural components of government itself.

Albert W. Alschuler & Andrew G. Deiss, A Brief History of

the Criminal Jury in the United States, 61 U. Chi. L.R. 867,

870-72 (1994). As the Court noted in Duncan,

[t]he guarantees of jury trial in the Federal and

State Constitutions reflect a profound judgment

about the way in which law should be enforced

and justice administered. A right to a jury trial

is granted to criminal defendants in order to

prevent oppression by the Government. Those

who wrote our constitutions knew from history

and experience that it was necessary to protect

against unfounded criminal charges brought to

eliminate enemies and against judges too

responsive to the voice of higher authority. The

framers of the constitutions strove to create an

independent judiciary but insisted upon further

protection against arbitrary action. Providing an

accused with the right to be tried by a jury of his

peers gave him an inestimable safeguard against

the corrupt or overzealous prosecutor and

against the compliant, biased, or eccentric judge.

391 U.S. at 156 (footnotes omitted). The framers viewed

the jury trial right as a means of ensuring that the power

to deprive a citizen of liberty was not concentrated in the

hands of the government. Thus, it would have been

inconceivable to them that, in those prosecutions to

which it attached, the jury trial right could be unilaterally

extinguished by the judge.?

% Of course, the jury trial right in serious cases, like the

right to counsel in felony cases, can be waived. See Patton v.

United States, 281 U.S. 276 (1930); Faretta v. California, 422 U.S.

806 (1975).

30

This Court’s jury trial cases have consistently

embraced the view that the determination of criminal

seriousness is one that is indelibly fixed by the legisla-

ture. “The 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 correction of their misperceptions in

this respect.’ ” Blanton, 489 U.S. at 541-42 (citation omit-

ted). Thus, if a particular case is serious, it must be tried

by a jury regardless of the trial judge’s assessment. A

pretrial sentencing stipulation cannot negate the legisla-

tive classification of criminal seriousness in the jury trial

context any more than it can negate the analogous classi-

fication — designation as a felony — when it comes to the

right to counsel. See Gideon v. Wainwright, 372 U.S. 335

(1963); Johnson v. Zerbst, 304 U.S. 458 (1938).'°

To hold otherwise would be to eviscerate the objec-

tive test for criminal seriousness as established by Duncan

and its progeny. Under that test, the Court always

assumes that the defendant will be subject to the maxi-

mum sentence authorized by the legislature, regardless of

what the trial court actually does (Blanton, 489 U.S. at

10 While Scott v. Illinois, 440 U.S. 367 (1979), permits a

pretrial stipulation to extinguish the right to counsel in state

court misdemeanor cases, Gideon requires counsel in all felony

cases. The trial court cannot “convert” a felony into a

misdemeanor with a sentencing promise, then deny the

defendant an attorney. Similarly, the court cannot “convert” a

serious prosecution into a petty one so as to deny the defendant

a jury trial.

31

544), and the actual sentencing consequences to the par-

ticular defendant are irrelevant. Duncan, 391 U.S at

159-60. A pretrial stipulation, like the actual sentence

imposed, does not change the statutory maximum.

Indeed, only one federal court has ever held to the

contrary, and its reasoning is seriously flawed. In United

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

defendant was tried on four offenses, each of which car-

ried a maximum penalty of six months’ imprisonment or

less; the maximum authorized sentence was more than 18

months’ imprisonment. Id. at 1514. The trial court refused

to grant the defendant a jury trial, but stipulated that

should he be convicted the court would not impose a

sentence in excess of six months. Id. at 1513. On appeal,

the Tenth Circuit acknowledged that the defendant was

constitutionally entitled to a jury trial in this situation,

but held that the pretrial stipulation had extinguished

that right. Id. at 1520.

The Second Circuit addressed this question below,

but reached a different result. In dicta, the court refused

to follow Bencheck; it noted that the government's claim

that the pretrial stipulation had effectively extinguished

Mr. Lewis’s right to a jury trial was “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 punishment authorized by

Congress; therefore, self-imposed limitations on

sentencing by the court cannot deprive a defen-

dant of his constitutionally protected right to a

jury trial.

32

Lewis, 65 F.3d at 255-56. This Court should likewise reject

the reasoning of Bencheck.

Bencheck’s primary flaw is that it incorrectly assumes

that the sentence that the defendant is likely to receive is

an adequate reflection of the societal judgment upon

which the jury trial right turns. This Court’s decisions

unambiguously hold that the jury trial right depends on

society’s judgment of the defendant’s conduct, not the

trial court’s. That is why the sentence actually imposed is

irrelevant to the issue. Duncan, 391 U.S. at 159-60; Blanton,

489 U.S. at 541. If the sentencing court’s informed judg-

ment of criminal seriousness, as reflected in the sentence

actually imposed, is not an adequate substitute for the

societal judgment embodied in the maximum authorized

penalty, then clearly the court’s uninformed pretrial pre-

diction of criminal seriousness cannot be either."

The aberrational methodology permitted by Bencheck

thus defies Duncan irrespective of the Tenth Circuit's

claim that its approach was “objective.” 926 F.2d at 1518.

While it is true that the jury trial right turns on an

examination of objective indicia of criminal seriousness, it

is not true that the identification of any objective factor at

all will suffice. The Tenth Circuit held that because the

11 The stipulation in Mr. Lewis’s case cannot be seen as a

judgment as to criminal seriousness at all. The record indicates

the stipulation did not arise out of the Magistrate Judge’s

reasoned judgment of the circumstances of the case, about

which she could have had little foreknowledge, but rather solely

out of her belief, however erroneous, that such a promise would

render a bench trial constitucional. J.A. 12.

33

pretrial sentencing stipulation set forth an objective mea-

sure of the consequences of the prosecution for that par-

ticular defendant, Duncan and Blanton were satisfied. 926

F.2d at 1518. However “objective” in this context does not

simply mean “concrete” — it means “categorical.” Any

prosecution that meets the definition of “serious” must be

tried by a jury (Blanton, 489 U.S. at 541), and the right is

in no way contingent on the facts of the individual case.

Thus the trial court’s assessment of the case, even if

objectively expressed in a pretrial sentencing stipulation,

is irrelevant. The only constitutionally permissible

inquiry is whether the case falls within the category of

prosecutions designated by the legislature as capable of

being tried without a jury.

Bencheck’s second fallacy is its reliance on the use of

pretrial stipulations to determine the jury trial right in

criminal contempt cases. 926 F.2d at 1518-19. In such

cases, where there is no statutory maximum fixed by the

legislature, the judge’s assessment of the contemnor’s

conduct is the most relevant measure of seriousness for

jury trial purposes. Blanton, 489 U.S. at 542 n.6; Bloom v.

Illinois, 391 U.S. 194, 211 (1968). However, this rule oper-

ates only in the criminal contempt context and has never

been applied to the determination of the constitutional

right to a jury trial in statutory offense cases. Blanton, 489

U.S. at 542. Other than in the unique situation where the

offense is against the court itself and the court alone sets

the punishment without any legislative input, the legisla-

ture’s judgment of criminal seriousness is more accurate

than the trial court’s. Duncan, 391 U.S. at 159. Thus,

where the legislature has spoken, its judgment alone

determines the jury trial right.

34

Finally, Bencheck erroneously relies on the language

of Fed. R. Crim. P. 58(a)(3), which allows for relaxed

procedural safeguards in petty offense cases “as to which

the court determines that, in the event of conviction, no

sentence of imprisonment will be imposed.” Rule 58(a)(3)

has no applicability here. First, the stipulation in

Bencheck, as.in Mr. Lewis’s case, was not that “no”

imprisonment would be imposed; it was that no more

than six months’ imprisonment would be imposed. 926

F.2d at 1513; J.A.12. Moreover, it is clear that the jury trial

right is not among those extinguishable by a pretrial

stipulation under Rule 58(a)(3). On its face, that provision

applies only to the right to counsel (Rule 58(b)(2)(C))!2

12 That Rule 58 does not permit a stipulation to do away

with the jury trial right is confirmed by its antecedents. The 1970

Rules for the Trial of Minor Offenses before United States

Magistrates made no procedural allowances of any kind for

pretrial sentencing stipulations. The superseding 1980 Rules of

Procedure for the Trial of Misdemeanors Before United States

Magistrates authorized such stipulations, but exempted the jury

trial right from those extinguishable by stipulation. Moreover,

as the Advisory Committee Notes to the 1980 Rules make clear,

those rules were based on the untested assumption that Scott v.

Illinois, 440 U.S. 367 (1979), under which a pretrial stipulation

can extinguish the right to counsel in state court misdemeanor

prosecutions, applied in federal court. But this Court has never

held that Scott applies in federal court, and there is considerable

doubt that it does. Scott itself indicates that its rule is a

concession to the “difficulties” of “incorporation” (440 U.S. at

372) and describes its own holding as relating to the

“constitutional right to appointed counsel in state criminal

proceedings.” Id. at 373 (footnote omitted). The lower federal

courts are split on the applicability of Scott to federal

prosecutions. See, e.g., United States v. Reilley, 948 F.2d 648 (10th

Cir. 1991) (Scott applies in federal court); United States v. Doe,

35

and to the procedures enumerated in Rule 58(c) relating

to guilty pleas, waivers of venue, sentencing, and noti-

fication of the right to appeal. See Rule 58(c)(1)-(4).

In sum, the constitutional history of the jury trial

guarantee, this Court's jury trial precedents, and the rele-

vant rules of criminal procedure unanimously point

toward a single conclusion: A pretrial sentencing stipula-

tion, while capable of extinguishing certain procedural

rights, cannot supersede the legislative determination of

criminal seriousness. Accordingly, such a stipulation can-

not extinguish the jury trial right.

+

743 F.2d 1033 (4th Cir. 1984) (assuming, without analysis, that

Scott applies in federal court); United States v. Jackson, 605 F.2d

1319 (4th Cir. 1979) (same); United States v. Downin, 884 F.Supp.

1474 (E.D. Cal. 1995) (Scott does not apply in federal court);

United States v. Nash, 703 F.Supp. 507 (W.D. La.), aff'd on other

grounds, 886 F.2d 1312 (5th Cir. 1989) (assuming, without

analysis, that Scott applies in federal court); United States v.

Ramirez, 555 F.Supp. 736 (E.D. Cal. 1983) (Scott does not apply in

federal court).

36

CONCLUSION

For the foregoing reasons, petitioner prays that the

judgment below be reversed.

Respectfully submitted,

STEVEN M. STATSINGER

THe Lecat Arp Society

FeperRAL DereNDeR DrvisiIOn

AppeaALs BUREAU

52 Duane Street, 10th Floor

New York, New York 10007

Counsel for Petitioner.

Of Counsel:

Henriette D. HorrMan

Davip A. Lewis.