Respondents Brief — Lewis v. United States

0

No. 95-6465

In the Supreme Court of the United States

OCTOBER TERM, 1995

Ray A. LEWIS, PETITIONER

U.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

DREW S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

RICHARD P. BRESS

Assistant to the Solicitor

General

LOUIS M. FISCHER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a defendant who is prosecuted in a

single proceeding for two petty offenses has a consti-

tutional right to a jury trial if the aggregate sentence

authorized for the two offenses 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 pre-

trial commitment that the aggregate sentence im-

posed will not exceed six months.

TABLE OF CONTENTS

Page

Opinions belowWw .. . . . . . . . . . . . . . . . . . . . . . e. 1

. ————— . . 1

Constitutional provisions involved ...............eeeeeeeees 2

— . 2

Summary of argument . . .. . . ... ... 54 5

Argument:

I. A petty offense is not transformed into a serious

offense, requiring a trial by jury, by virtue of

its joinder with other petty offenses ..................- ®

A. The nature of the offense charged governs

the right to a jury trial . . .. . . .... . . 10

B. The right to a jury trial does not depend

on the conduct involved . ..... 21

C. The analogy to contempt trials lacks merit 27

Il. Ifa defendant's jury trial right does turn on

aggregating the potential sentences for multiple

petty offenses, there is no right to a jury where

a judge makes a pretrial commitment to limit

the aggregate sentence, upon conviction, to six

months’ imprisonment . . .. . . .. . . 30

6888 999ç9—ç9çꝙC—ðö————.—. 34

TABLE OF AUTHORITIES

Cases:

Argersinger v. Hamlin, 407 U.S. 25 (1972) .... 33

Ashe v. Swenson, 397 U.S. 436 (19700 . . 24

Baldwin v. New York, 399 U.S. 66 (1970) ....... 3, 8, 9, 10,

19, 21, 31

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

FN 3, 8, 9, 10, 18, 19, 20, 22, 30

Bloom v. Illinois, 391 U.S. 194 (1968) .......... 8, 28, 29, 31

Callan v. Wilson, 127 U.S. 540 (1888) ...... 8, 10, 14, 17, 18

Codispoti v. Pennsylvania, 418 U.S. 506 (1974) .. 27, 28,

29, 30, 31

(IID)

Cases—Continued: Page

Commonwealth v. Langnes, 255 A.2d 131 (Pa.

1969), vacated and remanded sub nom. Mayberry

v. Pennsylvania, 400 U.S. 455 (1971) . . .. 29

Deal v. United States, 113 S. Ct. 1993 (1993) 25

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

——ññññ —é— 8, 10, 13, 18, 19

District of Columbia v. Colts, 282 U.S. 68 (1930).. 10, 18

Duncan v. Louisiana, 391 U.S. 145 (1968) _8, 10, 13, 19, 21

Frank v. United States, 395 U.S. 147 (1969) ..... 8, 10, 19

Grossman, Ex parte, 267 U.S. 87 (1925) 14

Lawton v. Steele, 152 U.S. 133 (1894) 8

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) ...... 27

McMillan v. Pennsylvania, 477 U.S. 79 (1986) 27

Murphy v. People, 2 Cow. 815 (N.Y. Sup. Ct.

——— 13

New York v. United States, 326 U.S. 572 (1946) 27

Nichols v. United States, 114 S. Ct. 1921 (1994) ..... 32

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

Rife v. Godbehere, 814 F.2d 563, amended, 825 F.2d

I Se Se 4

Rinaldi v. United States, 434 U.S. 22 (1977) ........... 24

Schick v. United States, 195 U.S. 65 (1904) 8. 10,

14, 18, 19

Scott v. Illinois, 440 U.S. 367 (1979 19, 32

The King v. Swallow, 101 Eng. Rep. 1392 (K.B.

— ͤK— — 15

The Queen v. Mathews, 88 Eng. Rep. 609 (Ch.

6 —̃ ͤ¶ͤ—T— ͤAuõwʃ 15

United States v. Bencheck, 926 F.2d 1512 (loth

2. 9

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

1996), petition for cert. pending, No. 95-7422 4

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

ROR ee 9, 25

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

eee 2 32

Cases—Continued: Page

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

United States v. Mitchell, 778 F.2d 1271 (7th Cir.

101 —. [ . 25

United States v. Nachtigal, 507 U.S. 1 (1993) ........ 10, 20

United States v. Joetzki, 952 F.2d 1090 (9th Cir.

E—— — 23

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

ee 32

Winship, In re, 397 U.S. 358 (1970). 27

Constitution, statutes and rule:

U.S. Const.:

2 wü! 6. 17

Kü K —— —— 2,14

Amend. V (Double Jeopardy Clause) 24

.. 2, 6, 17, 18, 30

| Se 19

fe 6 —-ͤ.— 3

Le 25

J ——. 2,3

UU ee 3

0 3

Ll —K, T 4

122 1;⁵5.F8—.. ͤ ö: 4, 22, 23

D.C. Code Ann. § 22-3802 (1989) . 22

Fed. R. Crim. P.:

32, 33

— 32

CO 33

Miscellaneous:

William Blackstone, Commentaries:

—TUK— . Ä 14

1 6 T 12

1 Richard Burn, Justice of the Peace (29th ed.

— ———— 11. 12, 15

Charters & General Laws of the Colony & Province

of Massachusetts Bay (181) . . 16

Miscellaneous—Continued: Page

5 Colonial Laws of New York (1894) . . 16

Felix Frankfurter & Thomas G. Corcoran, Petty

Federal Offenses and the Constitutional Guaranty

of Trial by Jury, 39 Harv. L. Rev. 917 (1926) .......... 11, 12,

13, 16, 17

Paley’s Law and Practice of Summary Convictions a

(Walter Mac Namara ed., 6th ed. 1879) . . . 15

S. Rep. No. 225, 98th Cong., Ist Sess. (1983) .............. 23

2 Statutes at Large of Pennsylvania from 1682 to

9. —— — 16

In the Supreme Court ol the United States

OcTOBER TERM, 1995

No. 95-6465

Ray A. LEWIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (J.A. 27-34) is

at 65 F.3d 252. The opinion of the district

court (J.A. 14-26) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 5, 1995. The petition for a writ of certio-

rari was filed on October 20, 1995, and was granted on

January 19, 1996 (J.A. 35). The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

(1)

—

CONSTITUTIONAL PROVISIONS INVOLVED

Article III, Section 2, Clause 3 of the Constitution

provides in relevant part:

The Trial of all Crimes, except in Cases of Im-

peachment, shall be by Jury * * *.

The Sixth Amendment to the Constitution provides

in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed * * *.

STATEMENT

After a bench trial held before a magistrate judge in

the United States District Court for the Eastern

District of New York, petitioner was convicted on two

counts of obstructing the mail, in violation of 18

U.S.C. 1701. He was sentenced to three years’ pro-

bation, ordered to participate in a drug treatment

program, and assessed $10. The court of appeals

affirmed. J.A. 27-34.

1. Petitioner was a mail handler for the United

States Postal Service. On June 3, 1992, postal in-

spectors saw him rip open several pieces of mail and

place the contents in his pocket. The next day, the

postal inspectors routed “test” mail (containing

marked currency) through petitioner’s work station.

The inspectors saw petitioner open the test mail and

remove the currency. They arrested petitioner as he

was removing currency from yet another letter. C.A.

App. 9, 65.

2. Petitioner was charged with two counts of

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

3

J.A. 14, 28. Each count carried a maximum authorized

prison sentence of six months. Petitioner requested

a jury, but the magistrate judge granted the govern-

ment’s motion for a bench trial. J.A. 12. The

magistrate judge reasoned that, because she would

not “under any circumstances” sentence petitioner to

a total of more than six months’ imprisonment, pe-

titioner was not entitled to a jury. J.A. 12, 15, 28.

After a one-day trial, petitioner was found guilty on

both counts. J.A. 1, 14.

The district court affirmed petitioner’s conviction.

J.A. 14-26. It rejected petitioner’s argument that “the

possibility of receiving a [cumulative] sentence in

excess of six months, in effect, transformed the two

petty offenses into a serious offense, thereby guar-

anteeing him the constitutional right to a jury trial.”

J.A. 17. Relying on this Court’s decisions in Baldwin

v. New York, 399 U.S. 66 (1970), and Blanton v. City

of North Las Vegas, 489 U.S. 538 (1989), the district

court concluded that the right to a jury trial on a

criminal charge depends on the severity of the poten-

tial sentence for that particular charge, not the seri-

Section 1701 provides:

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.

Under 18 U.S.C. 19, “the term ‘petty offense’ means a Class

B misdemeanor, a Class C misdemeanor, or an infraction, for

which the maximum fine is no greater than the amount set

forth for such an offense in section 3571(b)(6) or (7) in the case

of an individual.” The classification system for federal offenses

is set forth in 18 U.S.C. 3559(a). Under that system, Section

1701 is a Class B misdemeanor, 18 U.S.C. 3559(a)(7), and hence

a federal petty offense.

4

ousness of the defendant’s overall conduct as meas-

ured by the potential aggregate penalty on all of the

charges brought in a particular proceeding. J.A. 17-

18, 22.

3. The court of appeals affirmed. J.A. 27-34. It too

rejected the claim that “potential sentences must be

aggregated to determine the right to a jury trial.”

J.A. 30. The court concluded that consideration of

sentences in the aggregate “fail[s] to focus on the

appropriate objective criteria.” J. A. 31. The appropri-

ate focus, it explained, is not on “the defendant’s view

as to the seriousness of facing over six months im-

prisonment for aggregate sentences,” but rather on

“how seriously Congress views the offenses in the

aggregate.” Ibid. The court observed that, under

18 U.S.C. 3584(a), absent a contrary court order or

statute, Imjultiple terms of imprisonment imposed at

the same time run concurrently.” J.A. 32. The court

believed that that indicated a congressional presump-

tion “that multiple offenses prosecuted jointly are no

more serious in their aggregate than the most

serious single offense of conviction.” Ibid. The court

also saw little reason to view petitioner’s jointly tried

petty offenses in the aggregate, since petitioner’s

claimed “right to a jury trial could have been obviated

altogether had the government chosen to simply

charge both counts * * * in separate informations.”

Ibid.

2 The district court also rejected petitioner’s claim that the

magistrate judge’s authority, under 18 U.S.C. 3568(b)(6), to

order petitioner to give up his job as a postal worker as a

condition of probation was an “additional statutory penalty”

that rendered his offenses serious and entitled him to a jury

trial. J.A. 22-25. Petitioner has not pursued that argument

further.

5

After concluding that petitioner had no right to a

jury trial on his two petty offenses, the court ad-

dressed (in dictum) the government’s alternative

argument that, even if aggregation of the potential

sentences for the two offenses were appropriate,

petitioner would still have no entitlement to a jury,

because the magistrate judge announced before the

trial that petitioner would receive no more than a six-

month sentence. J.A. 34. The panel suggested that,

because the seriousness of an offense is “measured

principally by the maximum punishment authorized

by Congress,” a trial judge’s “self-imposed limita-

tions on sentencing” should not “deprive a defendant

of his constitutionally protected right to a jury trial.”

Ibid.

SUMMARY OF ARGUMENT

This Court has long held that the Constitution’s

jury trial guarantee in criminal cases does not extend

to petty offenses, i. e., those offenses that, based on

objective indications, are regarded by the legislature

as relatively less serious. The seriousness of an

offense is gauged by the penalty that the legislature

provides for a violation. An offense that carries more

than six months’ imprisonment is a serious offense, to

which the right to a jury trial attaches; an offense

that carries no more than six months’ imprisonment

is presumptively petty.

The character of an offense as petty does not

change when a charged violation is joined with other

petty offense charges. Nor does a right to a jury trial

on the petty offense charge spring into being simply

because the aggregate penalty for several petty

offenses may total more than six months’ imprison-

ment. The reason for rejecting any such aggregation

6

principle, and for adhering to this Court’s consistent

offense-based analysis, flows from the basic logic of

the petty offense rule. At common law, petty offenses,

as a class, were triable to justices of the peace in

summary proceedings without juries. That common

law history directly led to this Court’s conclusion

that the constitutional jury trial right has no

application to petty offenses. By the same token, the

common law affords no support for the suggestion

that a person charged with two petty offenses, each

triable without a jury, acquires a right to a jury if the

cases are tried jointly.

The Sixth Amendment does not alter the focus of

the common law—and the Constitution—on whether a

particular offense is petty or serious in character.

While the Sixth Amendment’s jury trial right applies

to “criminal prosecutions,” it, like the jury trial

clause in Article III, reflects the Framers’ intention

to preserve the common law’s treatment of petty

offenses as matters not implicating the right to a jury

trial. If a single petty offense is not a “criminal

prosecution” within the meaning of the Sixth Amend-

ment, there is no valid basis for holding that multiple

petty offenses that are joined together somehow

become one.

Nor is there a basis for expanding the jury trial

right to multiple petty offenses on the ground that

a cumulative potential sentence of more than six

months’ imprisonment is intrinsically serious. This

Court has never based its petty offense rule on a

subjective view of seriousness, but has instead looked

to the common law antecedents of the constitutional

jury trial right and to the legislature’s determina-

tions of penalties. Similarly, the test is not whether

society at large judges a person more harshly if he is

7

\

convicted of several offenses. The touchstone in this

area is the judgment of the legislature, and legisla-

tures do not, and cannot, assess in advance the poten-

tial seriousness of future prosecutions that combine

multiple offenses. In any event, an aggregation rule

would produce inconsistent results, since it would tie

the jury trial right to the prosecutor’s decision to

join several offenses, or to the court’s decision to

sever them.

This Court’s holdings in the contempt field provide

no basis for a general rule requiring aggregation.

The Court has ruled that, where a legislature has not

specified the penalty that may be imposed for

contempt, the actual sentence imposed is the proper

measure of “seriousness” for determining the appli-

eability of the jury trial right. The Court has also

ruled that when contempts arising from a single trial

are adjudicated in post-trial proceedings, the aggre-

gate sentence must be used to assess seriousness.

Those rules, which respond to the unique context of

contempts where there is no legislative determina-

tion of seriousness, have no application to offenses

that are, by virtue of the authorized sentences

attached, “petty” in the usual sense of the term.

Finally, if this Court were to base the jury trial

right on the aggregate penalties that a defendant

faces in a single prosecution for multiple petty

offenses, it should also hold that no jury trial right

exists when the judge makes a pretrial commitment

not to impose a sentence of more than six months’

imprisonment for the multiple petty offenses. If the

seriousness of the prosecution is to be gauged by the

potential penalty to be imposed, rather than the

legislature’s assessment of the seriousness of each

offense, a commitment by the judge to limit the

8

sentence to six months or less makes clear that the

ultimate penalty faced by a defendant is not “serious”

within the meaning of the Constitution’s jury trial

guarantee.

ARGUMENT

I. A PETTY OFFENSE IS NOT TRANSFORMED

INTO A SERIOUS OFFENSE, REQUIRING A

TRIAL BY JURY, BY VIRTUE OF ITS JOINDER

WITH OTHER PETTY OFFENSES

“It has long been settled that ‘there is a category of

petty crimes or offenses which is not subject to the

Sixth Amendment jury trial provision.’” Blanton v.

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

(quoting Duncan v. Louisiana, 391 U.S. 145, 159

(1968)); accord Baldwin v. New York, 399 U.S. 66, 68

(1970) (plurality opinion); Bloom v. Illinois, 391 U.S.

194, 210 (1968); District of Columbia v. Clawans, 300

U.S. 617, 624 (1937); Schick v. United States, 195 U.S.

65, 70 (1904); Lawton v. Steele, 152 U.S. 133, 141-142

(1894); Callan v. Wilson, 127 U.S. 540 (1888). “In

determining whether a particular offense should be

categorized as ‘petty,’” this Court has focused on

“objective indications of the seriousness with which

society regards the offense.” Frank v. United States,

395 U.S. 147, 148 (1969). The most relevant objective

indication is “the severity of the penalty authorized,”

ibid., because, “[iJn fixing the maximum penalty for a

crime, the legislature ‘include[s] within the definition

of the crime itself a judgment about the seriousness

of the offense.’” Blanton, 489 U.S. at 541. In that

regard, the Court has concluded that “no offense can

be deemed ‘petty’ for purposes of the right to trial by

jury where imprisonment for more than six months is

9

authorized,” Baldwin, 399 U.S. at 69 (plurality

opinion), and, conversely, that “an offense carrying a

maximum prison term of six months or less”

presumably is petty, Blanton, 489 U.S. at 543. This

Court’s reliance on the nature of the offense charged,

by reference to the sentence it carries, as the gauge

of the constitutional right to jury trial remains

the proper test, regardless of whether a defendant

is charged with only one offense, or with several

petty offenses joined together for trial in a single

prosecution.“

8 The Second Circuit’s holding in this case that the jury

trial right turns on the penalty imposed for that offense, rather

than the aggregate punishment that may be imposed for

several joined offenses, accords with the holding in United

States v. Brown, 71 F.3d 845, 847 (1lth Cir. 1996) (“the

‘aggregation’ of penalties for multiple petty offenses does not

mandate a jury trial”), petition for cert. pending, No. 95-7422.

Three courts of appeals have looked to the aggregate penalty

imposed in deciding whether a jury trial right attaches to

multiple joined petty offenses, but those courts have also held

either that a jury trial right does not attach if the magistrate

commits before trial not to impose a sentence of more than six

months’ imprisonment, see United States v. Bencheck, 926

F.2d 1512, 1618 (10th Cir. 1991), or that a violation of the right

to a jury trial can be remedied by imposing a sentence not

exceeding six months’ imprisonment, see Rife v. Godbehere, 814

F.2d 563, 565, amended, 825 F.2d 185 (9th Cir. 1987), or that

the question whether a jury trial right can be extinguished by a

presiding judge’s pretrial stipulation to sentence a defendant to

no more than six months’ imprisonment remains an open one,

see United States v. Coppins, 953 F.2d 86, 90 n.2 (4th Cir.

1991).

10

A. The Nature Of The Offense Charged Governs

The Right To A Jury Trial

This Court has consistently analyzed a defendant’s

right to trial by jury by specific reference to the

character of the offense charged. See, e.g., Callan,

127 U.S. at 552 (“[T]here are certain minor or petty

offences that may be proceeded against summarily.”)

(emphasis added); Schick, 195 U.S. at 68 (The

nature of the offense, and the amount of punishment

prescribed * * * determine whether it is to be

classed among serious or petty offenses.”) (emphasis

added); District of Columbia v. Colts, 282 U.S. 63, 73

(1930) (“Whether a given offense is to be classed

* * as a petty offense * depends primarily

upon the nature of the offense.”) (emphasis added);

Clawans, 300 U.S. at 630 (“We cannot say that this

penalty, when attached to the offense of selling

second-hand goods without a license, gives it the

character of a common law crime or of a major

offense.”) (emphasis added); Frank, 395 U.S. at 149

(“(T]he legislature has included within the definition

of the crime itself a judgment about the seriousness of

the offense.”) (emphasis added); Duncan, 391 U.S. at

159 (“(T]he penalty authorized for a particular crime

is of major relevance in determining whether it is

serious.”) (emphasis added); Baldwin, 399 U.S. at

72-73 (plurality opinion) (referencing line “between

offenses that are and that are not regarded as

‘serious’ ”) (emphasis added); Blanton, 489 U.S. at 543

(question is whether the penalty “reflect([s] a leg-

islative determination that the offense in question is

a ‘serious’ one”) (emphasis added); United States v.

Nachtigal, 507 U.S. 1, 4 (1993) (per curiam) (“[{T]he

statutory penalties in other States are irrelevant to

11

the question whether a particular legislature deemed

a particular offense serious.) (emphasis added).

Petitioner argues that this Court’s long-standing

and consistent focus on “the offense,” rather than the

as a whole, reflects only that “in each of

the Court's prior cases the parameters of the offense

and the prosecution were the same.” Br. 14. He

maintains that “the prosecution” is the correct level

of inquiry, and that where, as here, a single case

involves multiple petty offenses, the right to a jury

trial is “contingent on the seriousness of the entire

prosecution.” Ibid. Contrary to petivioner’s view, the

Court’s offense-specific focus in defining the consti-

tutional right to a jury reflects the historical fact

that, at common law, petty offenses, as a class, were

triable without juries. é

1. Starting in the sixteenth century, successive

Parliaments enacted statutes creating numerous

“petty” offenses for which a defendant could be con-

victed summarily by a justice of the peace. See Felix

Frankfurter & Thomas G. Corcoran, Petty Federal

Offenses and the Constitutional Guaranty of Trial

by Jury, 39 Harv. L. Rev. 917, 926-934 (1926). A typi-

cal statute of that period would define an offense or

class of offenses and vest jurisdiction for all trials of

such offense or offenses in justices of the peace. Id. at

927; 1 Richard Burn, Justice of the Peace 962 (29th ed.

1845) (“The penal statute frequently points out before

whom the conviction is to take place.”). Parliament

thereby effected “a specific withdrawal from trial by

jury of specific offenses in specific statutes, rather

than a general formula for summary procedure.

12

Frankfurter & Corcoran, 39 Harv. L. Rev. at 927.4

The offenses prosecuted before justices of the peace

at common law were many and varied, including

“[vjiolations of the laws relating to liquor, trade and

manufacture, labor, smuggling, traffick on the high-

way, the Sabbath, ‘cheats,’ gambling, swearing, small

thefts, assaults, [and] offenses to property.” Id. at 928

(footnotes omitted); see, e.g., id. at 928-929 nn.37-51,

930-933 nn.59-81 (citing statutes). Parliament pre-

scribed monetary penalties for some petty offenses,

id. at 930-931, and corporal punishment or imprison-

ment for others, id. at 932.

The colonists “brought with them the legal tradi-

tions of James I, of which summary jurisdiction by

justices of the peace was a familiar part.” Frank-

furter & Corcoran, 39 Harv. L. Rev. at 984-935. Al-

though practices varied among the colonies, and the

colonists apparently “entrusted fewer matters to

Although the statutes vesting jurisdiction over petty

crimes in justices of the peace did not eliminate the use of

juries in so many words, it is undisputed that offenses triable

before justices of the peace were subject to conviction without a

jury. “Authority given to the justices meant ‘the justices’ and

not ‘the justices and jury“ Frankfurter & Corcoran, 39

Harv. L. Rev. at 929-930; see also 5 William Blackstone, Com-

mentaries 280 (1803) (There is no intervention of a jury, but

the party accused is acquitted or condemned by the suffrage of

such person only, as the statute has appointed for his judge.”);

Burn, supra, at 958 (“Under this title will be considered only

those convictions which take place before magistrates in a

summary way, and without the intervention of a jury.”). In

some cases, the trial of a petty offense required more than one

justice of the peace, although the distribution of offenses that

required two justices and those that required only one varied

over time, apparently with no definite or consistent plan.

Frankfurter & Corcoran, 39 Harv. L. Rev. at 927 n.33.

13

justices than did the contemporary English law,” id.

at 936, they similarly “acted on the conviction that

the much-cherished jury procedure was not impera-

tive for small offenses,” id. at 987. As Frankfurter

and Corcoran summarized, “drastically limited does

the right of trial by jury seem to have been known to

Englishmen for two centuries preceding the separa-

tion of the colonies. Alongside of trial before the

popular tribunal was trial by magistrates. There

were crimes and crimes. The great dividing line was

the use of a jury.” Id. at 933; accord Clawans, 300

U.S. at 624 (“At the time of the adoption of the

Constitution there were numerous offenses, com-

monly described as ‘petty, which were tried sum-

marily without a jury, by justices of the peace in

England, and by police magistrates or corresponding

judicial officers in the Colonies, and punished by

commitment to jail, a workhouse, or a house of

correction.”); see also, e. g., Murphy v. People, 2 Cow.

815, 819 (N.Y. Sup. Ct. 1824) (observing that Courts of

Special Sessions were established in 1744 to hear

certain petty offenses, and that, historically, Ino

right of trial by jury ever existed in those Courts”)

(citation omitted).

In the absence of any “substantial evidence that the

Framers intended to depart from” common law prac-

tice, Duncan, 391 U.S. at 160, this Court interpreted

the constitutional right to a jury to be roughly

coextensive with the right as it existed at common

law, “the principles and history of which were

familiarly known to the framers of the Constitution,”

14

Schick, 195 U.S. at 69.“ This Court interpreted the

drafting history of the third clause of Section 2,

Article III, in light of the contemporary recognition

that juries were unavailable for petty offenses at

common law. The initial draft of the clause would

have provided the right to a jury for “the trial of all

criminal offenses,” but that language was modified to

“the trial of all crimes,” a term that denoted (in then-

common usage) “offenses as [welre of a deeper and

more atrocious dye” than “‘misdemeanors’ only.”

Schick, 195 U.S. at 69-70 (quoting 4 William Black-

stone, Commentaries 5). This Court concluded, “in

the light of the popular understanding” at the time of

the Convention “of the meaning of the word ‘crimes,’”

that the final draft reflected the Framers’ “intent

* * * to exclude from the constitutional requirement

of a jury the trial of petty criminal offenses.” Schick,

195 U.S. at 70.“

5 “The language of the Constitution cannot be interpreted

safely except by reference to the common law and to British

institutions as they were when the instrument was framed and

adopted. The statesmen and lawyers of the Convention who

submitted it to the ratification of the Conventions of the

thirteen States, were born and brought up in the atmosphere of

the common law, and thought and spoke in its vocabulary.

They were familiar with other forms of government, recent

and ancient, and indicated in their discussions earnest study

and consideration of many of them, but when they came to put

their conclusions into the form of fundamental law in a

compact draft, they expressed them in terms of the common

law, confident that they could be shortly and easily under-

stood.” Ex parte Grossman, 267 U.S. 87, 108-109 (1925).

® Accord Callan, 127 U.S. at 549 (“The word ‘crime,’ in its

more extended sense, comprehends every violation of public

law; in a limited sense, it embraces offences of a serious or

atrocious character. In our opinion, the provision is to be

i\

U

15

2. The common law did not accord a jury trial to a

defendant who was simultaneously charged with mul-

tiple petty offenses, so long as each was independently

triable without a jury. Since for the trial

of petty offenses was vested in justices of the peace, a

petty offense would not have been tried before a jury

regardless of its joinder with another petty offense.

See 1 Burn, supra, at 963 (noting the absence of “ob-

jection to the joining and stating of several [petty]

offences, in a distinct manner, in the same informa-

tion and conviction”); see also id. at 984 (“The

defendant may be convicted in the same conviction

in several penalties for several offences.”); accord

Paley’s Law and Practice of Summary Convictions

269 (Walter MacNamara ed., 6th ed. 1879) (“There

seems * * * to have been no objection to including in

one conviction several distinct offences and penalties

of the same kind.“); see, e.g., The Queen v. Mathews,

88 Eng. Rep. 609 (Ch. 1710); The King v. Swallow, 101

Eng. Rep. 1392 (K. B. 1799)."

Colonial statutes also ordinarily defined offenses or

classes of offenses and vested jurisdiction over all

prosecutions of such offenses in magistrates or

interpreted in the light of the principles which, at common

law, determined whether the accused, in a given class of cases,

was entitled to be tried by a jury.”).

7 To the extent that any controversy existed over whether

single judgments of convictions could include several offenses,

the issue was the proper form of a conviction, not the authority

of a justice of the peace to try multiple petty offenses in a

single proceeding. See Paley’s Law and Practice of Summary

Convictions, supra, at 339.

16

justices of the peace, Some colonies instead empow-

ered judicial officers to try all offenses that carried

penalties below a prescribed maximum. See, e. .,

Charters & General Laws of the Colony & Province

of Massachusetts Bay 68 (1814) (statute adopted in

1651 authorizing trial of misdemeanors by commis-

sioners in Boston, “provided the fines imposed by

them, do not exceed forty shillings for one offence”); 2

Statutes at Large of Pennsylvania from 1682 to 1801,

at 19 (1896) (statute passed in 1700 providing that, in a

trial for a petty offense, “where the fine doth not

exceed twenty shillings, one or more justices of the

peace, upon due proof of the offense, or being com-

mitted in his or their presence, may determine and

give judgment”). We are not aware of any colonial

statute, however, that conditioned the right to a jury

8 A typical statute of the times, passed in 1771 (see 5

Colonial Laws of New York 237 (1894)), provided as follows:

[Anny Person or Persons [who] shall wilfully break any

Glass Window or Windows, Porch or Porches, Knocker or

Knockers, * * * and being thereof convicted before one

or more Justice or Justices of the Peace * * * either by

the Confession of the Party or Parties so offending, or the

Oath of one or more Credible Witness or Witnesses (which

Oath the said Justice or Justices of the Peace is and are

hereby impowered and required to administer) shall for

every such Offence as aforesaid forfeit the Sum of ten

Pounds.

If the offender failed to pay, “every such Justice or Justices of

the Peace [was] impowered and required * to commit

* * * such Person to the Common Goal [sic] * * *,

there to remain without Bail * * * for the space of one Month

unless such Forfeiture or Forfeitures be sooner paid.” Jd. at

238. See also Frankfurter & Corcoran, 39 Harv. L. Rev. at 983-

1019 (citing numerous colonial statutes vesting jurisdiction over

petty crimes in magistrates or justices of the peace).

17

triai in a case involving multiple offenses on the po-

tential cumulative penalty for the entire prosecution.

3. Petitioner does not dispute the common law’s

focus on the seriousness of distinct offenses. Instead,

he argues (Br. 14-15) that, because the Sixth Amend-

ment right to a jury trial applies in “criminal pros-

ecutions,” the existence of that right depends on the

nature of the prosecution as a whole. That is in-

correct. Although the Sixth Amendment uses the

phrase “criminal! prosecutions,” in lieu of Article III’s

reference to “crimes,” this Court rejected long ago

the notion that “the amendment was intended to

supplant that part of the third article which relates

trial by jury.” Callan, 127 U.S. at 549. The Sixth

Amendment merely “enumerates the elements of

‘trial by jury’ in Article III; it does not extend the

field of its operation.” Frankfurter & Corcoran, 39

Harv. L. Rev. at 971. In light of the origins of the

Sixth Amendment, “it is clear that the scope of trial

by jury guaranteed by the Sixth Amendment is

identical with the scope of jury trial in Article III.

ae is wholly lacking of a desire for change.”

Even if it could be said that the right to a jury trial

attaches to “criminal prosecutions,” rather than to

prosecutions for “crimes,” that would not, in any

event, justify extending the right of trial by jury to

prosecutions involving solely petty offenses. Peti-

tioner does not contend that the Sixth Amendment

guarantees the right to a jury trial in all criminal

prosecutions. Rather, he concedes (Br. 9-13) that a

single petty offense may be tried without a jury and

thus implicitly acknowledges that the prosecution of

a single petty offense is not a “criminal prosecu-

tionl]“ within the meaning of the Sixth Amendment.

18

If one charge of a petty offense is not a “criminal

prosecution,” nothing in the language of the Sixth

Amendment supports the view that the joinder of

several petty offenses in a single case transforms the

whole into a “criminal prosecution” within the

meaning of the jury trial right.

4. Although this Court has, over time, modified its

approach to determining whether a particular offense

carries the right of jury trial, the Court has always

maintained its focus on the character of the offense

charged. Initially, in Callan, the Court defined as

“petty or minor” those offenses that were “not of the

class or grade triable at common law by a jury.” 127

U.S. at 555. Determining the common law character

of an offense was impracticable in many cases, how-

ever, because of “the substantial number of statutory

offenses lacking common law antecedents.” Blanton,

489 U.S. at 541 n.5. When there was no common law

analogue, the Court initially looked primarily to

whether the charged offense was by “nature” com-

parable with common law crimes. See Schick, 195

U.S. at 68; Colts, 282 U.S. at 73. Under that approach,

the Court considered the “moral quality” of an

offense, defining as petty those offenses “not * * *

necessarily involving any moral delinquency,”

Schick, 195 U.S. at 67, and as serious those “act[s] of

such obvious depravity that to characterize [them] as

* * * petty offensels] would be to shock the general

moral sense,” Colts, 282 U.S. at 73.

In 1937, the Court repudiated the view that serious-

ness is inherent in the nature of an offense. Clawans,

300 U.S. at 625. Recognizing that attempts to iden-

tify the nature of an offense invited “recourse of the

judge to his own sympathy and emotions,” the Court

directed inquiry instead to “the laws and practices of

19

the community” as a gauge of the locality’s “social

and ethical judgments.” Id. at 628. Invoking a mode

of analysis earlier suggested in Schick, 195 U.S. at

68, the Court concluded that the maximum author-

ized penalty was the best “objective indication[{] of

the seriousness with which society regard[{ed] the

offense,” Frank, 395 U.S. at 148.

In 1968, the Court held that the entitlement to a

jury in criminal trials is a fundamental right guaran-

teed by the Fourteenth Amendment. Duncan, 391

U.S. at 149. Application of the right to state criminal

trials brought into play a vastly expanded range of

offenses, Scott v. Illinois, 440 U.S. 367, 372 (1979),

which exacerbated the difficulty of identifying com-

mon law equivalents. Recognizing that difficulty, the

Court clarified that the key factor in characterizing

an offense is the maximum authorized penalty. In

Baldwin, a plurality of the Court concluded that “no

offense can be deemed ‘petty’ for purposes of the right

to trial by jury where imprisonment for more than six

months is authorized,” 399 U.S. at 69; in Blanton, it

adopted the converse presumption, i. e., that “an of-

fense carrying a maximum prison term of six months

or less” is a petty offense, 489 U.S. at 543. The latter

presumption is rebuttable only upon a showing by the

defendant “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.” Ibid.

This Court’s adoption of a quantitative measure of

the seriousness of an offense does not entail the

proposition that the constitutional measure of

seriousness turns on the aggregation of penalties

20

available for jointly tried petty offenses.’ The focus

of the Court’s inquiry is, and has always been, on the

character of the particular offenses with which

defendants have been charged. That is a logical

corollary of the textual justification for nonjury

trials in petty offense cases. The petty offense rule

rests on the conclusion that the Constitution, as the

common law before it, reserves the jury trial right

for prosecutions for serious offenses. Just as the

common law did not define the petty offense jurisdic-

tion of justices of the peace by reference to the

cumulative penalties at issue in a case, the Con-

stitution does not base the jury trial right on the sum

of the potential terms of imprisonment authorized for

distinct but jointly tried petty offenses.”

® Petitioner errs in suggesting (Br. 20) that United States v.

Goodwin, 457 U.S. 368 (1982), supports a constitutionally re-

quired aggregation rule. In that case, the Court rejected a

claim that a prosecutor’s decision to recharge a more serious

offense after the respondent demanded a jury trial on less

serious charges raised a presumption of prosecutorial vindic-

tiveness. The Court did not address whether the defendant in

that case in fact had the right to a jury trial on the basis of the

multiple offenses originally charged.

Petitioner argues (Br. 24-26), for the first time in this case,

that he has the right to a jury trial because his conduct—

stealing from the mails—was chargeable as a felony in England

and in the colonies and punishable by death. In our view,

Blanton ruled out consideration of how an offense was viewed

at common law. See Blanton, 489 U.S. at 543 (presumption

that crime with six-month sentence is petty is rebuttable “only”

by a showing that the total authorized penalty is serious);

Nachtigal, 507 U.S. at 4 (same). In any event, that issue is not

properly before this Court. Petitioner argued in the courts

below and in his petition for a writ of certiorari that he merited

a jury trial because the cumulative maximum authorized

penalties for his petty offenses exceeded six months. He did

21

B. The Right To A Jury Trial Does Not Depend On

The Conduct Involved In A Prosecution For

Multiple Petty Offenses

Petitioner claims that the right to trial by jury

must extend to proceedings involving multiple petty

crimes because (i) no defendant should face the

possibility of more than six months’ imprisonment

without being afforded the right to a jury (Br. 19-21);

and (ii) “[sJociety is affected by, and hence judges, a

defendant’s conduct as a whole” (Br. 16). Those con-

siderations are not relevant to the constitutional test.

The limitation of the jury right to serious offenses

does not stem from this Court’s normative view that

the jury, rather than a judge, is the appropriate

decisionmaker when severe penalties may be imposed

in a criminal case." Rather, it stems from the

Court’s interpretation of the text of the Constitution.

not claim (or so much as suggest in his petition) that he

believed that the individual offenses were not petty because

charges of stealing from the mails were triable by jury at

common law. That new-found claim is not fairly included in

the question presented, and it is therefore beyond the scope of

this case. (Whether theft from the mails was chargeable as a

felony at common law would not, in any event, be the relevant

question. Irrespective of the conduct in which petitioner was

actually engaged, the question would be whether the offense

with which he was charged—obstruction of the mails—was

triable by jury at common law. Petitioner cites no evidence

that it was.)

1 This Court’s reference in Duncan to “the right of jury

trial in serious criminal cases,” 391 U.S. at 156, and the plural-

ity’s statements in Baldwin to the effect that an accused has

the right to interpose a jury “between himself and a possible

prison term of over six months,” 399 U.S. at 72, have no fair

import beyond the context of those cases, i. e., prosecutions for a

single charged offense.

22

That interpretation rests on the Framers’ grounding

in a common law system that did not provide a jury

trial for the prosecution of crimes that the legisla-

ture viewed as petty—a judgment that did not change

simply because an offender may have committed many

petty offenses.

Nor does the likelihood that society will judge a

person based on the totality of his conduct dictate

that the right to a jury trial be analyzed on that level

of generality. The right to a jury turns on the

legislature’s assessment of the seriousness of par-

ticular offenses, not on the imprecise contours of a

defendant’s “conduct as a whole.” A legislature cali-

brates the seriousness of an offense by authorizing

the range of penalties that the offense carries.

Legislatures do not assess the seriousness of entire

prosecutions.”

Although we do not believe that the presumption in

18 U.S.C. 3584(a) that sentences run concurrently

2 Nor, ordinarily, do legislatures determine the seriousness

of particular combinations of offenses. Legislatures of course

may, and sometimes do, authorize the aggregation of petty

offenses committed in tandem to create a single serious offense.

Section 22-3802 of the D.C. Code (1989), for example, provides

that “[aJmounts received pursuant to a single scheme or sys-

tematic course of conduct in violation of § 22-3811 (Theft), 22-

3821 (Fraud), or 22-3823 (Credit Card Fraud) may be aggre-

gated in determining the grade of the offense and the sentence

for the offense.” Two second-degree thefts involving the prop-

erty of separate members of the same household could be

aggregated under that statute to meet the threshold amount

for a first-degree theft. Where such a first-degree theft is

charged, the enhanced penalty authorized by Section 22-3802 is

an “objective indication,” Blanton, 489 U.S. at 541, that the leg-

islature views the multiple, related petty offenses as con-

stituting a single serious offense.

23

(unless the judge otherwise orders or a statute

otherwise requires) reflects a congressional belief

that the commission of two offenses is no more

serious than the commission of a single offense,”

petitioner errs in suggesting that Section 3584(a)’s

authorization of consecutive sentences reflects a

congressional belief that the commission of two

offenses in tandem warrants cumulative punishment.

Congress judges seriousness offense-by-offense. It

cannot assess the seriousness of all potential combi-

nations of offenses, and it has not made any attempt to

do so. A defendant who is charged with committing

two offenses is exposed to consecutive sentences

because each distinct offense carries its own maxi-

mum authorized penalty—not because Congress has

determined that the overall conduct with which he is

charged warrants that particular aggregate sentence.

Indeed, the cumulative penalty that a defendant

faces as a consequence of multiple petty offense

3 Section 3584(a) provides in relevant part:

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 * * *. 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 impris-

onment imposed at different times run consecutively unless

the court orders that the terms are to run concurrently.

That provision provides a rule of construction for situations in

which the sentencing judge fails to specify whether a defen-

dant’s sentences are to run concurrently or consecutively. See

United States v. Joetzki, 952 F.2d 1090, 1098 (9th Cir. 1991);

S. Rep. No. 225, 98th Cong., Ist Sess. 127 (1983).

24

charges provides no consistent assurance of a jury

trial right, even under petitioner’s own theory.

Petitioner conceded below that the government could

lawfully have severed the two counts with which he

was charged and tried them separately, and that “the

question of [his] right to a jury trial [would thereby]

have been obviated altogether.” J.A. 32; see also J.A.

18-19. Petitioner’s acknowledgement that under his

approach petty offenses tried jointly would be treated

differently from the same offenses tried separately

demonstrates that the constitutional right to a jury

trial does not, and cannot, turn on the totality of

charged criminal conduct.

Under petitioner’s approach, a defendant charged

with two petty offenses would have a right to a jury

trial on both if the prosecutor elected to charge the

offenses together in a single information, and on

neither if the offenses were charged separately, un-

less the trial judge severed the charges in the former

circumstance or joined them in the latter, in which

case, the defendant’s positions would be reversed.

Aggregation would thus give prosecutors and, to a

lesser extent, judges the power to control the

“seriousness” of the prosecution.“ The prosecutor’s

4 As a matter of policy, the federal government will not

generally bring charges based on substantially the same acts or

transactions that formed the basis for a prior state or federal

criminal proceeding. See Rinaldi v. United States, 434 U.S.

22, 27 (1977) (per curiam); Petite v. United States, 361 U.S. 529

(1960) (per curiam). That policy had no application in this

case, which involved distinct crimes committed on successive

days. In any event, except where successive prosecution would

implicate the Double Jeopardy Clause, e.g., Ashe v. Swenson,

397 U.S. 436 (1970), the government’s charging policy is not

constitutionally compelled. It cannot be invoked as a bar to

25

decision whether to join or sever counts, moreover,

bears no relation to the principles underlying the

right to a jury trial. Trying counts together is a

Judicial efficiency imposed at no greater risk to the

defendant.” United States v. Coppins, 953 F. 2d 86, 92

(4th Cir. 1991) (Niemeyer, J., dissenting). “The mere

fact that the government [chooses] to consolidate the

charges provides no greater justification for a jury

trial than if the charges were tried separately.” J.A.

82.

Since the desire to proceed efficiently does not

“elevate the[] seriousness of the offenses” or change

“the risk to the defendant,” it should logically have no

effect on “whether the defendant is given a jury

trial.” - Coppins, 953 F.2d at 92 (Niemeyer, J., dis-

senting). As one of petitioner’s amici argues, in

federal prosecution, see, ¢.g., United States v. Mitchell, 778

F.2d 1271, 1276-1277 (7th Cir. 1985) (citing cases), and it quite

clearly does not constrain the charging protocol of state pros-

ecutors.

This Court adopted similar reasoning in Deal v. United

States, 113 S. Ct. 1993 (1993). That case involved 18 U.S.C.

924(c), which provides enhanced penalties “[iJn the case of

* * fal subsequent conviction.” This Court rejected the

petitioner’s argument that the term “subsequent conviction”

does not include a second conviction within a single proceeding,

but only “a judgment of conviction entered at a later time,” 113

S. Ct. at 1996, in part because the petitioner’s interpretation

“would [have] giveln] a prosecutor unreviewable discretion

either to impose or to waive the enhanced sentencing

provisions * * * by opting to charge and try the defendant

* * * in separate’ prosecutions,” id. at 1997. Observing that,

under the petitioner’s view, “enhanced sentencing would

clearly have been required” if “the same charges had been

divided into six separate prosecutions for the six separate bank

robberies,” the Court declined “to give the statute a meaning

that produces such strange consequences.” /bid.

26

order for a defendant to raise the aggregation argu-

ment, he must accept that some crimes are not triable

by jury, i.e., those criminal offenses carrying a

penalty of six months or less. Having accepted this

initial premise, the seriatim argument is logically

unanswerable as the inherent non-jury character of

these offenses is not essentially altered by their

aggregation in a single proceeding.” Jury Trial

Group Amicus Br. 3.“

Petitioner’s amici, the National Legal Aid and

Defender Association et al., suggest (Br. 6-8) that, if

the constitutional right to trial by jury is not based

on the seriousness of the entire prosecution, a

legislature could nullify the jury trial right by

artificially subdividing criminal conduct into small

increments (e.g., defining the offense of unlawful

possession of ammunition as the unlawful possession

of a single bullet), and authorizing a six-month sen-

tence for each incremental wrong. That would permit

the imposition of a significant cumulative sentence

without a jury trial. Br. 7-8. A legislature that

viewed a crime as serious and deserving of lengthy

imprisonment, however, would not likely subdivide it

into six-month offenses and thereby leave to the

1 Petitioner suggests (Br. 22) that arguing that no jury is

required in multiple offense trials because the offenses could

have been prosecuted separately is akin to arguing that no jury

is required for the trial of a serious felony because the

defendant could have been charged instead with a petty

offense. The arguments are, however, quite different. Pros-

ecutions for two petty offenses carry the same cumulative

potential penalties regardless of whether the offenses are tried

jointly or severally; a felony conviction, however, ordinarily

carries serious collateral consequences and social stigma that

could never result from prosecutions for less serious offenses.

27

discretion of individual prosecutors and judges the

decision whether to treat it as such. And there is no

evidence that legislatures actually have any inclina-

tion to gerrymander offenses so as to avoid jury

trials. “The process of Constitutional adjudication

does not thrive on conjuring up horrible possibilities

that never happen in the real world.” New York v.

United States, 326 U.S. 572, 583 (1946) (opinion of

Frankfurter, J.); ef. McMillan v. Pennsylvania, 477

U.S. 79, 89 (1986) (rejecting argument based on

“specter raised by petitioners of States restructuring

existing crimes in order to ‘evade’” In re Winship,

397 U.S. 358 (1970)).

C. The Analogy To Contempt Trials Lacks Merit

This Court’s decision in the contempt context in

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

provides no support for petitioner’s argument that the

aggregate penalty determines the right to a jury in

prosecutions for multiple petty offenses. Codispoti

and two co-defendants in a criminal trial, each acting

as his own counsel, were cited with several counts of

contempt arising from incidents that had occurred

during their trial. Following the underlying proceed-

ings, they were each charged, tried, and convicted for

multiple contempts, and they were each sentenced to

multiple consecutive one-year and two-year terms of

imprisonment. The state supreme court affirmed the

contempt charges, but this Court vacated them, with

the instruction that “on remand another judge, not

bearing the sting of [the contemnors’] slanderous

remarks and having the impersonal authority of the

law, sit{] in judgment on the[ir] conduct.” Mayberry

v. Pennsylvania, 400 U.S. 455, 466 (1971). Codispoti

and his co-defendants were then convicted once again

28

on the multiple contempt charges, this time in sep-

arate proceedings before a different trial judge.

Codispoti was sentenced to six months in prison for

each of six contempts and a term of three months for

another, each sentence to run consecutively; his co-

defendant Langnes was sentenced to five terms of six

months each and one term of two months, all to be

served consecutively. See Codispoti, 418 U.S. at 507-

510.

Because the Pennsylvania legislature had estab-

lished no maximum authorized penalty for contempt,

this Court looked to the aggregate penalties actually

imposed by the trial court to determine whether the

offenses charged against the contemnors were

“serious” or “petty.” 418 U.S. at 511. The Court ex-

plained that, “where no legislative penalty is specified

and sentence is left to the discretion of the judge, as

is often true in the case of criminal contempt, the

pettiness or seriousness of the contempt will be

judged by the penalty actually imposed.” Ibid.; accord

Bloom, 391 U.S. at 197-201. The Court then applied

that principle to the aggregate sentences for con-

tempt, all of which “arose from a single trial, were

charged by a single judge, and were tried in a single

proceeding.” 418 U.S. at 517. Looking to the total

sentence, the Court found the existence of a jury trial

right on the facts before it. bid.

Nothing in Codispoti suggests that the Court was

adopting an approach applicable to the ordinary case,

in which a legislature has determined the maximum

authorized penalty for each charged offense. The

holding in Codispoti itself derived largely from

concerns unique to charges of criminal contempt.

Contemptuous conduct, “though a public wrong, often

strikes at the most vulnerable and human qualities of

29

a judge’s temperament. Even when the contempt is

not a direct insult to the court or the judge, it

frequently represents a rejection of judicial author-

ity, or an interference with the judicial process or

with the duties of officers of the court.” Bloom, 391

U.S. at 202. Moreover, unlike ordinary prosecutions,

with criminal contempt “it is normally the trial judge

who, in retrospect, determines which and how many

acts of contempt the citation will cover. It is also he

or * * * another judge who will determine guilt or

innocence absent a jury, who will impose the

sentences and who will determine whether they will

run consecutively or concurrently.” Codispoti, 418

U.S. at 515. Particularly in light of the “recurring

necessity [in the federal system] to set aside

punishments for criminal contempt as either

unauthorized by statute or too harsh,” Bloom, 391

U.S. at 206, this Court “has long recognized the

potential for abuse in exercising the summary power

to imprison for contempt,” id. at 202. That unique

potential for abuse presents a “compelling argument

* * for providing a right to jury trial.” bid.

In Codispoti, moreover, since the trial judge waited

until the conclusion of the underlying criminal

proceedings to charge the various contempts, the

most “realistic view of what [actually] occurred [in

Codispoti] was that,” notwithstanding the trial

judge’s post hoc identification of separate contemp-

tuous acts, there was only one contempt—(each

contemnor’s] trial conduct as a whole.” Common-

wealth v. Langnes, 255 A2d 131, 136 (Pa. 1969)

(O’Brien, J., concurring in part and dissenting in

part), vacated and remanded sub nom. Mayberry v.

Pennsylvania, 400 U.S. 455 (1971). [The only

measure of the seriousness of * * *_ [the]

30

contemnor’s criminal acts,” therefore, was “the

entirety of the court’s sentence.” J.A. 33. No deci-

sion of this Court, however, has applied the rule

announced in Codispoti to cases in which multiple

violations of a criminal statute constitute distinct

crimes." Nor should Codispoti have application to

cases in which the legislature’s action has defined the

seriousness of the offense by establishing its

authorized punishment. ’

II. IF A DEFENDANT’S JURY TRIAL RIGHT DOES

TURN ON AGGREGATING THE POTENTIAL

SENTENCES FOR MULTIPLE PETTY OF-

FENSES, THERE IS NO RIGHT TO A JURY

WHERE A JUDGE MAKES A PRETRIAL COM-

MITMENT TO LIMIT THE AGGREGATE SEN-

TENCE, UPON CONVICTION, TO SIX MONTHS’

IMPRISONMENT

The foregoing analysis demonstrates that a de-

fendant’s right to a jury trial depends on the maxi-

mum sentence authorized for the offense charged, and

that when the penalty for an offense establishes that

it is petty, it need not be tried by a jury regardless of

the number of such offense jointly to be tried. If,

however, this Court were to determine that the jury

"Contrary to petitioner’s argument (Br. 18 n.3), the

“aggregation principle” of Codispoti does not follow from

Baldwin. The cited passage in Codispoti (418 U.S. at 512 n.4)

simply parsed the various concurring and plurality opinions in

Baldwin. Nor did Blanton elevate Codispoti to the status of

a general guide to the Sixth Amendment; rather, it cited

Codispoti for the unremarkable proposition that Baldwin had

held “that a potential sentence in excess of six months’ impris-

onment is sufficiently severe by itself to take the offense out of

the category of ‘petty.’” Blanton, 489 U.S. at 543 n.7 (citing

Codispoti, 418 U.S. at 512 n.4).

31

trial right turns instead on the “seriousness” of the

entire prosecution as measured by the aggregate

potential penalty, it would not help petitioner. Before

trial, the magistrate judge in this case announced

that she would not “sentence [petitioner] to more

than six months in prison under any circumstances.”

J.A. 12. A judge’s pretrial decision to limit the total

punishment that the defendant may receive to no

more than six months’ imprisonment means that the

entire prosecution does not pose the risk of imposing

a “serious” penalty. Accordingly, a trial of multiple

petty offenses in those circumstances does not trig-

ger the constitutional right to a jury.

The premise of the aggregation theory is that “an

accused [has] the right to interpose between himself

and a possible prison term of over six months(] the

commonsense judgment of a jury of his peers,” Br. 19

(quoting Baldwin, 399 U.S. at 72 (plurality opinion))

(emphasis added by petitioner). It stands to reason,

under that theory, that an accused who does not face a

“possible prison term of over six months” for petty

offense violations should have no similar right.

Indeed, petitioner’s reliance on Codispoti, supra, for

the aggregation principle virtually compels that

result; the Court stated in that case that, where the

contempt penalty is left to the discretion of the judge,

“the pettiness or seriousness of the contempt will be

judged by the penalty actually imposed.” 418 U.S. at

511; Bloom, 391 U.S. at 211.“

8 A trial judge’s pretrial commitment to sentence a defen-

dant charged with a serious felony to no more than six months’

imprisonment would not, of course, affect that defendant’s

right to a jury trial. See Nat' Legal Aid and Defender Ass'n

Br. 28. The difference is that, on an aggregation theory, the

“seriousness” of a prosecution for multiple petty offenses

32

Contrary to the view of petitioner’s amici (Nat’l

Legal Aid and Defender Ass’n Br. 29-30), there is no

“serious practical objection to basing the right to

jury trial” on the presiding judge’s pretrial commit-

ments regarding sentencing. The proposition (ibid.)

that jludges cannot make sentencing decisions

before trial” is refuted by Scott v. Illinois, supra, and

Federal Rule of Criminal Procedure 58(a). In Scott,

this Court held that a defendant has no right to

appointed counsel in a misdemeanor case if he is not

ultimately sentenced to a term of imprisonment;

courts administering that rule necessarily will often

determine before trial whether imprisonment is

likely.” Likewise, Rule 58(a)(2) provides that the

Federal Rules of Criminal Procedure have no force in

petty offense prosecutions in which “no sentence of

results from the happenstance of the combination of distinct

offenses committed by a particular defendant and the decision

of the prosecutor and the judge to try those offenses jointly,

not from a specific legislative judgment that the whole of the

prosecution is more “serious” than the sum of the individual

offenses. In the case of a serious felony, however, the legis-

lature has made a categorical judgment about the character

of the offense, and that legislative judgment is not open to

reversal by the action of an individual judge.

Although Scott involved a state prosecution, this Court

has since described it as holding that, “where no sentence of

imprisonment [iJs imposed, a defendant charged with a mis-

demeanor hals] no constitutional right to counsel,” Nichols v.

United States, 114 S. Ct. 1921, 1925 (1994), without differentiat-

ing between state and federal contexts. As petitioner concedes

(Br. 34 n.12), the courts of appeals that have ruled on the issue

have concluded that Scott applies in federal court. See United

States v. Reilley, 948 F.2d 648 (10th Cir. 1991); United States v.

Doe, 743 F.2d 1033 (4th Cir. 1984).

33

imprisonment will be imposed.” The rules contem-

plate that that determination will made before trial:

The term “petty offenses for which no sentence of

imprisonment will be imposed” as used in this

rule, means any petty offenses as defined in 18

U.S.C. § 19 as to which the court determines, that,

in the event of conviction, no sentence of im-

prisonment will actually be imposed.

Fed. R. Crim. P. 58(a)(3). As a matter of practice,

therefore, federal judges deciding whether to appoint

counsel for a defendant or to apply the Federal Rules

of Criminal Procedure to a petty offense case must

determine before trial whether they wish to preserve

the option of imposing a term of incarceration.

Although the parameters of the right to a jury trial

are not the same as the parameters of the right to

counsel, Argersinger v. Hamlin, 407 U.S. 25, 30

(1972), and the right to trial by jury is not affected by

the Federal Rules of Criminal Procedure, Scott and

Rule 58(a) demonstrate that trial judges have the

authority to determine pretrial that a defendant

charged with petty offenses will not receive the

maximum authorized sentence of imprisonment. And

while petitioner’s amici assert that “[t]here is an

important practical difference * * * between the

decision in Scott [and under Rule 58(a)(2)] to promise

to impose no jail time, and the finer distinction of

whether to impose more or less than six months’

imprisonment,” Nat’l Legal Aid and Defender Ass’n

Br. 29 n.21, the distinction is unfounded. To the

extent that the concern is that sentencing decisions

are being made “before trial without information

about the defendant and the offense” (id. at 29), a

judge constrains his sentencing discretion less

34

severely by limiting the amount of potential jail time

than by promising to impose no term of imprisonment

whatsoever.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

Drew S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

RICHARD P. BRESS

Assistant to the Solicitor

General

LOUIS M. FISCHER

Attorney

MARCH 1996