# Petitioners Brief — Lewis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0785%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1996 - **Citation:** 518 U.S. 322 ## Text . 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. . : 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0785%3A05. Public record. Not legal advice.