United States v. Ali Ahmed Hamdan and Shirley Ann Bush

552 F.2d 276, 40 A.L.R. Fed. 866, 1977 U.S. App. LEXIS 14570

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 1977
• Docket: 75-3758
• Status: Published

Opinions

PER CURIAM:

Hamdan and Bush were convicted after a court trial of violating 8 U.S.C. § 1306(c) by making false statements in documents filed with the Immigration and Naturalization Service. Both claim that they were improperly denied a jury trial and the evidence was insufficient to support their convictions.

Hamdan is a citizen of Jordan, admitted to the United States as a nonimmigrant student. Bush is a citizen of Panama and a permanent resident alien. They were married on July 23, 1974. In August 1974 Hamdan applied for permanent resident status, alleging he resided with Bush in Foster City, California. At the same time, Bush filed a supporting document stating she resided with Hamdan. Later investigation revealed Bush actually lived in an apartment in San Francisco.

A complaint was filed charging Hamdan and Bush with violating section 1306(c), which authorizes imposition of a fine of not more than $1,000, imprisonment for not more than six months, or both. They refused to consent to trial before a magistrate. 18 U.S.C. § 3401(b). The district judge denied their motion for a jury trial, and after hearing the evidence found them guilty.

Hamdan and Bush contend the denial of a jury trial was constitutional error. Article III, section 2 of the Constitution provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . .” The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”

At the time these provisions were adopted, the common law practice in both England and the Colonies was to try persons accused of certain “petty offenses” without a jury. Thus, in spite of the all-inclusive language of the Constitution, it has been held that there is no right to a jury trial in the prosecution of a petty offense. Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Cheff v. Schnackenberg, 384 U.S. 373, 379, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966) (plurality opinion); District of Columbia v. Clawans, 300 U.S. 617, 624-26 & nn. 2-4, 57 S.Ct. 660, 81 L.Ed. 843 (1937).

The Court of Appeals for the District of Columbia Circuit has held that if the accused is an individual, the line of demarcation between serious and petty offenses for purposes of the Sixth Amendment right to jury trial should be drawn in accordance with the standard provided by 18 U.S.C. § 1(3) when the penalty is a fine as well as when it is imprisonment. Douglass v. First National Realty Corp., 543 F.2d 894 (D.C.Cir.1976). This solution best accommodates the interests involved.

A jury is interposed to protect the accused from the power of government when the charge against him is a serious one. Baldwin v. New York, 399 U.S. 66, 72, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). An offense may be serious enough to require a jury trial because of the severity of the penalty, aside from the inherent nature of the crime. Id. at 69 n. 6, 90 S.Ct. 1886.

■ The usual penalties are fine and imprisonment. As to imprisonment, the Supreme Court has drawn the line at six months, in part because 18 U.S.C. § 1(3) establishes this maximum period of incarceration as an objective criterion of a “petty offense.” Duncan v. Louisiana, 391 U.S. 145, 161, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Frank v. United States, 395 U.S. 147,150-51, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969). The statutory definition reflects Congress’s “long-standing judgment that ‘[njotwithstanding any Act of Congress to the contrary . [a]ny 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, is a petty offense.’ ” Baldwin v. New York, supra, 399 U.S. at 73 n. 21, 90 S.Ct. at 1890.¹

As to a fine, the Supreme Court in Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975), declined to adopt section l(3)’s $500 maximum as the invariable criterion of an offense triable without a jury. The Court did not say that a fine could never be of sufficient magnitude to require a jury trial.² The Court noted, however, that for purposes of determining the seriousness of an offense, imprisonment and fine “are intrinsically different.” Id. at 477, 95 S.Ct. 2178. A six months’ jail sentence “is a serious matter for any individual,” but “it is not tenable to argue that the possibility of a $501 fine would be considered a serious risk to a large corporation or labor union.” Id. The union involved in Muniz had 13,000 members. The fine imposed upon the union was $10,-000. or about 75 cents for each member. This fine, the Supreme Court held, was not “a deprivation of such magnitude that a jury should have been interposed to guard against bias or mistake.” Id.

The dissent concludes that because section l(3)’s monetary standard was not applied in Muniz it is not available in this case and that Muniz compels us to make a “case-by-case evaluation of ‘the seriousness of the risk and the extent of the possible deprivation.’ ” This generalization is not further particularized. The dissent simply concludes that appellants failed to demonstrate that “a possible $1000 fine imposes such a risk upon them that a jury trial is constitutionally required.”

This is not a satisfactory solution.

If the “seriousness of the risk and the extent of the deprivation” were to be evaluated on the basis of the circumstances of each case, the ability of the particular defendant to pay a particular fine would be an important factor. This would mean that where the statute fixes a maximum monetary penalty, as in this instance, some persons accused of the offense would be entitled to a jury trial and others charged with the same offense would not, depending upon the extent of the individual defendant’s financial resources. This determination would have to be made in advance of trial in order to decide whether a jury was required as to the particular defendant. Where the maximum fine is not stipulated by statute (as in the case of most criminal contempts), the fine to be imposed if the accused were convicted, as well as his ability to pay it, would have to be determined in advance of the trial.

Moreover, the “seriousness of the risk and the extent of the possible deprivation” does not afford a workable standard for deciding specific cases with any reasonable degree of uniformity or predictability. Trial and appellate judges would have no guide for determining whether the deprivation was serious enough to require a jury trial except their own judgment concerning the seriousness of the risk. Even if the determination were confined to financial considerations, the potential for varying judgments would be great.

The Supreme Court has repeatedly asserted that the right to a jury trial should depend not upon the predelictions of the particular judge, but upon application of objective standards reflected in the law and practices of the community — in the federal system, the standards articulated in section 1(3). Duncan v. Louisiana, supra, 391 U.S. at 161, 88 S.Ct. 1444; Frank v. United States, supra, 395 U.S. at 148, 151, 89 S.Ct. 1503; Baldwin v. New York, supra, 399 U.S. at 70-76, 90 S.Ct. 1886. See also District of Columbia v. Clawans, 300 U.S. 617, 627-28, 57 S.Ct. 660, 81 L.Ed. 843 (1937). As the District of Columbia Circuit said in Douglass v. First National Realty Corp., supra, 543 F.2d at 902, “nowhere else in federal law or practice are we able to detect any other benchmark of seriousness or pettiness in monetary criminal penalties.”

Clearly, the interests of uniformity, objectivity, and practical judicial administration would be served by accepting this statutory standard as the monetary measure of a serious offense for the purposes of the right to jury trial. It is not unrealistic to treat any fine in excess of $500 as a serious matter to all individuals, even though they may vary in their ability to sustain incarceration far in excess of six months.³ Muniz is not to the contrary. Nothing in the opinion in that case suggests that a jury trial would not have been required if the fine imposed had had the impact of a $500 fine upon each of the 13,000 individuals who were members of the union.⁴

We hold, therefore, that appellants are entitled to a jury trial.

Reversed.

1 . The Supreme Court’s repeated reliance upon the section 1(3) standard in determining whether an offense is serious enough to require a jury trial demonstrates the irrelevance of the dissent’s comment that the legislative history of the statute does not indicate that it was enacted with this purpose in mind.

2 . It is clear that Article III, section 2 and the Sixth Amendment apply to crimes punishable by fine. Neither Article III nor the Sixth Amendment distinguishes between crimes punishable by imprisonment and crimes punishable by fine. Both types of punishment are subject to abuse through government bias or arbitrariness. Further, protection of property interests occupies an important place in the constitutional scheme; and deprivation of property can have a serious impact on an individual. See, e. g., Argersinger v. Hamlin, 407 U.S. 25, 48, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (Powell, J., concurring). A non-indigent who refuses or neglects to pay a fine can be imprisoned. Tate v. Short, 401 U.S. 395, 400, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971).

3 . The value of money changes, of course, as does the wealth of the economy. But Congress can be expected to adjust the monetary standard of section 1(3) so that it will continue to represent a fair judgment as to the appropriate line between petty and serious offenses. To cite two random examples: (1) the fine for a criminal violation of the Sherman Act, 15 U.S.C. § 1, et seq., 26 Stat. 209, was raised from $5,000 to $50,000 in 1955 (69 Stat. 282) and, in 1974, from $50,000 to $1,000,000 for a corporation and $100,000 for “any other person” (Antitrust Procedures and Penalties Act, Pub.L. No. 93-528, Section 3, 88 Stat. 1708); and (2) in 1970, Congress increased the penalty for violating the fuel additives provisions of the Air Quality Act of 1967, 42 U.S.C. § 1857f-6c, 81 Stat. 502, from $1,000 to $10,000 (Clean Air Act Amendments of 1970, 84 Stat. 1700).

Whether § 1(3) reflects an appropriate referent in determining the constitutional standard in light of future changes in the value of money or in future amendments of the statute will, of course, remain a question for the courts to determine. Duncan v. Louisiana, 391 U.S. 145, 160, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

4 . The dissent’s conclusion that “a crime punishable by a petty term of imprisonment plus a petty fine is no more serious than if the only punishment authorized were the prison term or fine alone” is simply a direct application of the definition of “petty offense” in § 1(3). See United States v. Goeltz, 513 F.2d 193 (10th Cir. 1975); United States v. Merrick, 459 F.2d 644 (4th Cir. 1972); ABA Project on Standards for Criminal Justice, Advisory Committee on the Criminal Trial, Trial by Jury, at 21 (Approved Draft 1968).