United States v. Mildred P. Coppins

953 F.2d 86, 1991 U.S. App. LEXIS 29324, 1991 WL 262915

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 16, 1991
• Docket: 90-5555
• Status: Published

Opinions

OPINION

PHILLIPS, Circuit Judge:

This appeal presents two issues: whether in assessing a defendant’s sixth amendment right to jury trial, entitlement should be determined by reference to the maximum statutory sentence of imprisonment authorized for the offense charged, or by the actual sentence imposed; and whether, if the statutory maximum controls, the entitlement of a defendant charged as the result of a single incident with multiple petty offenses to none of which jury trial right would attach separately, is determined by aggregating the maximum sentences. We hold that entitlement is determined by the legislatively authorized maximum sentence(s) for the offense(s) charged, and that where multiple petty offenses growing out of a single incident are charged the statutory maximum sentences for each are aggregated to determine entitlement. On this basis, we vacate the conviction of appellant Margaret Coppins, who was denied a jury trial on multiple charges of assault and trespass growing out of a single incident, was convicted of the assault charges following a bench trial, and sentenced to pay a fine of $170.

I

In September of 1989, Coppins drove up to the entry gate of the Cherry Point Marine Station, a government military reservation in North Carolina, on her way to her job on the base. She was denied entry by the guard on duty because the official decal on her automobile had expired. Taken to the guard’s office to obtain a base pass, she got into a scuffle with two Military Police officers. She allegedly grabbed one by the shoulder and struck the other with her purse.

As a result of the total incident above summarized she was charged in a criminal information with one count of trespassing on a military reservation in violation of 18 U.S.C. § 1382, one count of assault by beating, etc., in violation of 18 U.S.C. § 113(d), and one count of simple assault in violation of 18 U.S.C. § 113(e). The maximum statutory penalty for the trespassing offense is six months imprisonment and a $500 fine; for the assault by beating, etc., offense, also six months imprisonment and a $500 fine; and for the simple assault offense, three months imprisonment and a $300 fine.

Coppins timely filed a request for jury trial on the three joined counts. A magistrate judge denied the request, holding that the authorized punishments for none of the three offenses exceeded six months imprisonment, and that under Blanton v. North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989), there was no constitutional right to jury trial as to any. Following trial before another magistrate judge without a jury Coppins was found guilty on the two assault counts, not guilty on the trespassing count. She was fined a total of $170 on the two counts of conviction. No term of imprisonment or probation was imposed.

On appeal to the district court, Coppins raised three issues: whether the magistrate judge erred in denying her request for jury trial; whether incompleteness of the trial record made fair review impossible, necessitating a new trial; and whether the evidence was sufficient to convict her on the assault counts.

The district court rejected all three challenges. The record was found adequate to permit fair review, and the evidence of record sufficient to'support the findings of guilt. As to the denial of jury trial, the district court found that issue “moot,” since on any new trial before a jury the defendant could not, under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), receive any greater penalty than the $170 total fine imposed by the magistrate judge, hence would not be entitled to a jury on the new trial.

This appeal followed.

On the appeal, Coppins only challenges the magistrate judge’s denial of her request for jury trial. As to that she contends that where, as here, multiple charges of petty offenses resulting from a single incident are joined for trial, the right to jury trial is determined by aggregating the maximum terms of imprisonment authorized for the several offenses charged. If that is done here the aggregate is fifteen months, and under Supreme Court precedent, that entitled her to jury trial.

The government makes two counter-arguments. Primary reliance is placed on the correctness of the district court’s holding that the issue had been made “moot” by the imposition of a penalty whose binding effect on any pew trial would make jury trial not then required. In a fail-back position, the government argues on the merits of the issue that, in any event, the proper determinant of jury trial right is not the maximum sentence(s) authorized by statute (whether or not aggregated), but the actual sentence imposed.

II

We first address the “mootness” issue, and conclude that the district court erred in holding that a defendant’s constitutional right to jury trial can in effect be trumped by the imposition of a sentence which, because of its binding effect on retrial, thereby effectively becomes the determinant of the original right. What is being asserted on appeal is the right not to be convicted in the first place except by a jury. An arguably unconstitutionally obtained conviction cannot be immunized from challenge by finding the challenge mooted by the sentence imposed.¹

III

Turning to the merits of Coppins’ contention that she was erroneously denied a right to jury trial, we repeat that it raises two intertwined issues: whether the right is determined by reference to the maximum sentences authorized by statute or by reference to the sentence actually imposed; and whether, whichever the proper reference, the sentences for multiple petty offenses arising from a single incident should be aggregated for this purpose. We take them in the order stated.

A

By judicial interpretation, the sixth amendment right to jury trial in criminal cases does not extend to an undefined category of merely “petty offenses,” but only to “serious” ones. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). There is no comprehensive bright-line test for determining in all cases whether an offense is petty or serious for this purpose, hence whether jury trial right exists. Some guidelines have, however, emerged. The principal one is the one-way flat rule that “no offense is petty for which imprisonment for more than six months is authorized.” Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970). This means that for all such offenses, the right to jury trial exists.

But for the converse situation involving offenses for which imprisonment for more than six months is not authorized, there is no corresponding flat rule. As to such offenses, seriousness, hence jury trial right, is to be sought in “objective indications of the seriousness with which society regards the offense,” Blanton, 489 U.S. at 541, 109 S.Ct. at 1292 (quoting Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162 (1969)). And the most relevant objective indicator is now recognized as being the severity of any maximum penalty that may have been legislatively authorized, reflecting as that does a legislative, hence societal, judgment about the seriousness of the offense. Id.; United States v. Jenkins, 780 F.2d 472, 474 (4th Cir.1986). In gauging seriousness by this prime indicator, not only the length of the maximum term of imprisonment but the nature of any other form of punishment legislatively authorized is to be taken into account, but there is an ingoing presumption that if the maximum prison term authorized is six months or less, “society views [the] offense as ‘petty.’ ” Blanton, 489 U.S. at 543, 109 S.Ct. at 1293. And this presumption can only be overcome by a demonstration that the additional statutory penalties are so severe that, coupled with the maximum imprisonment authorized, they reflect a legislative determination that the offense is a serious one. Id.

For our purposes in this case, the critical principle among those above summarized is that the prime indicator of the seriousness of an offense, hence of jury trial right, is the legislative judgment expressed in any maximum sentence of imprisonment authorized by statute. For in laying down this principle, the Supreme Court has expressly rejected the government’s fall-back argument here that the sentence “actually imposed” in any case determines jury trial right. Here, that would of course mean that Coppins had no right. But as the Blanton Court observed, the legislature rather than the judiciary is the “better equipped” branch to make the societal judgment of seriousness which is at issue here. Id. at 541, 109 S.Ct. at 1292. And in making that observation, the Court had occasion to point out that the only circumstances in which the actual sentence imposed rather than the statutory maximum authorized is determinative are those — such as criminal contempt — where the legislature has not authorized a maximum punishment. Id. at 542 n. 6, 109 S.Ct. at 1292 n. 6. The government’s reliance on the criminal contempt cases Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975), and Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), is therefore misplaced in this case where legislatively authorized maximum penalties are provided.

We therefore hold that the sentence actually imposed here, a fine of $170, is not determinative of Coppins’ right to jury trial, but that this must be sought in the legislatively authorized maximum punishments for the three offenses at issue.²

B

This, then, leads to the second issue: whether for this purpose the maximum punishments authorized by statute for these offenses should be aggregated. If not, Coppins had no jury trial right; the offenses separately considered are all concededly “petty.” The maximum term of imprisonment authorized for each does not exceed six months, and Coppins does not contend that any of the offenses are shown to be otherwise serious under the Blanton standard. But if the maximum sentences authorized may be aggregated, the total term of imprisonment authorized is 15 months, which would make the offenses, so considered, not “petty” under Baldwin’s flat rule.

The Supreme Court has not directly addressed the issue of whether the maximum sentences authorized by statute for a number of petty offenses arising from a single incident should be aggregated for this purpose. But there is no apparent reason why the Court’s holding in Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974), that consecutive sentences of imprisonment actually imposed for a series of contempts committed during a single trial should be aggregated for this purpose should not apply also to require aggregation of any maximum sentences authorized by statute where those are determinative of the right. Several lower federal courts have specifically so held. See United States v. Potvin, 481 F.2d 380 (10th Cir.1973); United States v. Musgrave, 695 F.Supp. 231, 232-33 (W.D.Va.1988); United States v. Coleman, 664 F.Supp. 548, 549 (D.D.C.1985). We agree with the reasoning of these courts which essentially, as put by the Tenth Circuit in Potvin, is that

defendants can view as no less serious a possible penalty of [fifteen months] in prison when charged with [three] offenses arising out of the same act, transaction or occurrence, than if charged with one offense having a potential penalty of [fifteen months]_ Nor ... should [a] court view the offenses any less seriously.

Potvin, 481 F.2d at 382.

In this circuit, Judge Michael recently has employed this reasoning from Potvin in holding in Musgrave, supra, that aggregation was required where defendants were charged in a seven-count information with a connected series of petty offenses. In particular he noted the recognition in Potvin, later emphasized in Haar v. Hanrahan, 708 F.2d 1547 (10th Cir.1983), that

because modern criminal codes permit multiple charges to flow from a single discrete act of criminality, a criminal prosecution can threaten a defendant with the consequences of a serious offense, even though the defendant is not charged with an offense deemed serious under Duncan and Baldwin.

Musgrave, 695 F.Supp. at 232. In so holding, Judge Michael opined that if presented the issue, this court, looking to the primacy of legislatively authorized maximum punishments as recognized in Jenkins, and to the reasoning employed in Potvin, would hold aggregation required. Musgrave, 695 F.Supp. at 233. We now bear out the prediction, and hold that the maximum sentences of imprisonment authorized for those petty offenses with which Coppins was charged should have been aggregated for purposes of determining her right to jury trial. So aggregated, the maximum authorized sentence of fifteen months entitled Coppins to the jury trial requested. Baldwin, supra.

Because her request was denied, we vacate her conviction and remand for a new trial.

SO ORDERED.

1 . To find the jury trial issue mooted in this way is to reach by an untenable, indirect route a result that properly could be reached only if the actual sentence imposed in a case rather than the maximum authorized sentence faced by the defendant were the determinant of jury trial right. If that were so, the proper basis of decision here would be that on the merits there was no right to jury trial on the original trial, rather than that the sentence imposed following that trial has mooted any challenge to that conviction because of its effect on retrial.

As indicated, though the district court relied only on mootness, the government has also sought to uphold the district court’s rejection of the jury trial challenge on the more direct basis. See Part III A.

2 . These are the only alternatives presented in this case. A third alternative has been recognized by some courts which have held that a court may, by pretrial formal commitment not to impose a sentence of imprisonment in excess of six months, remove any right to jury trial that otherwise would obtain. See, e.g., United States v. Bencheck, 926 F.2d 1512 (10th Cir.1991). We express no opinion on this alternative, noting that the Bencheck panel was divided on the issue whether such an alternative survived Blanton’s emphasis on the primacy of objective indicators.