Frank v. United States

• Decision Date: 19 May 1969
• Docket Number: No. 200,200
• Citation: 395 U.S. 147,89 S.Ct. 1503,23 L.Ed.2d 162
• Parties: Ben H. FRANK, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

395 U.S. 147

89 S.Ct. 1503

23 L.Ed.2d 162

Ben H. FRANK, Petitioner,

v UNITED STATES.

No. 200.

Argued Dec. 12, 1968.

Decided May 19, 1969.

Rehearing Denied Oct. 13, 1969.

See 90 S.Ct. 34.

John B. Ogden, Oklahoma City, Okl., for petitioner.

Peter L. Strauss for respondent.

Mr. Justice MARSHALL delivered the opinion of the Court.

Petitioner was charged with criminal contempt of the United States District Court for the Western District of Oklahoma. The charge resulted from his violation of an injunction issued by that court at the request of the Securities and Exchange Commission. The injunction restrained petitioner from using interstate facilities in the sale of certain oil interests without having filed a registration statement with the Commission. Petitioner's demand for a jury trial was denied. He was convicted, and the court suspended imposition of sentence and placed him on probation for three years. The Court of Appeals affirmed. Frank v. United States, 384 F.2d 276 (C.A.10th Cir. 1967). We granted certiorari, 392 U.S. 925, 88 S.Ct. 2295, 20 L.Ed.2d 1384 (1968), to determine whether petitioner was entitled to a jury trial. We conclude that he was not.

The Sixth Amendment to the Constitution gives defendants a right to a trial by jury in 'all criminal prosecutions.' However, it has long been the rule that so-called 'petty' offenses may be tried without a jury. See, e.g., District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). For purposes of the right to trial by jury, criminal contempt is treated just like all other criminal offenses. The defendant is entitled to a jury trial unless the particular offense can be classified as 'petty.' Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966).

In determining whether a particular offense can be classified as 'petty,' this Court has sought objective indications of the seriousness with which society regards the offense. District of Columbia v. Clawans, supra, at 628, 57 S.Ct. at 663. The most relevant indication of the seriousness of an offense is the severity of the penalty authorized for its commission. Thus, in Clawans this Court held that a jury trial was not required in a prosecution for engaging in a certain business without a license, an offense carrying a maximum sentence of 90 days. Recently, we held that a jury trial was required in a state prosecution for simple battery, an offense carrying a possible prison sentence of two years. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

In ori nary criminal prosecutions, the severity of the penalty authorized, not the penalty actually imposed, is the relevant criterion. In such cases, the legislature has included within the definition of the crime itself a judgment about the seriousness of the offense. See Duncan v. Louisiana, supra, at 162, 88 S.Ct at 1454, n. 35. But a person may be found in contempt of court for a great many different types of offenses, ranging from disrespect for the court to acts otherwise criminal. Congress, perhaps in recognition of the scope of criminal contempt, has authorized courts to impose penalties but has not placed any specific limits on their discretion; it has not categorized contempts as 'serious' or 'petty.' 18 U.S.C. §§ 401, 402.¹ Accordingly, this Court has held that in prosecutions for criminal contempt where no maximum penalty is authorized, the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense.² See, e.g., Cheff v Schnackenberg, supra. Thus, this Court has held that sentences for criminal contempt of up to six months may constitutionally be imposed without a jury trial. Ibid.³

The Government concedes that a jury trial would have been necessary in the present case if petitioner had received a sentence in excess of six months. Indeed, the Government concedes that petitioner may be sentenced to no more than six months if he violates the terms of his probation.⁴ However, the Government argues that petitioner's actual penalty is one which may be imposed upon those convicted of otherwise petty offenses, and, thus, that a jury trial was not required in the present case. We agree.

Numerous federal and state statutory schemes allow significant periods of probation to be imposed for otherwise petty offenses. For example, under federal law, most offenders may be placed on probation for up to five years in lieu of or, in certain cases, in addition to a term of imprisonment. See 18 U.S.C. § 3651. Congress, in making the probation statute applicable to 'any offense not punishable by death or life imprisonment,' clearly made it apply to petty, as well as more serious, offenses. In so doing, it did not indicate that the additional penalty of a term of probation was to place otherwise petty offenses in the 'serious' category. In other words, Congress decided that petty offenses may be punished by any combination of penalties authorized by 18 U.S.C. § 1 and 18 U.S.C. § 3651. Therefore the maximum penalty authorized in petty offense cases is not simply six months' imprisonment and a $500 fine. A petty offender may be placed on probation for up to five years and, if the terms of probation are violated, he may then be imprisoned for six months. 18 U.S.C. § 3653.

In Cheff, this Court undertook to categorize criminal contempts for purposes of the right to trial by jury. In the exercise of its supervisory power over the lower federal courts, the Court decided by analogy to 18 U.S.C. § 1 that penalties not exceeding those authorized for petty offenses could be imposed in criminal contempt cases without affording the right to a jury trial.⁵ We think the analogy used in Cheff should apply equally here. Penalties presently authorized by Congress for petty offenses, including a term on probation, may be imposed in federal criminal contempt cases without a jury trial. Probation is, of course, a significant infringement of personal freedom, but it is certainly less onerous a restraint than jail itself.⁶ In noncontempt cases, Congress has not viewed the possibility of five years'proba- tion as onerous enough to make an otherwise petty offense 'serious.' This Court is ill-equipped to make a contrary determination for contempt cases. As this Court said in Clawans, '(d)oubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.' 300 U.S., at 628, 57 S.Ct., at 663.

Petitioner's sentence is within the limits of the congressional definition of petty offenses. Accordingly, it was not error to deny him a jury trial.

Affirmed.

Mr. Justice HARLAN and Mr. Justice STEWART, adhering to the views expressed in the dissenting opinion of Mr. Justice Harlan in Bloom v. Illinois, 391 U.S. 194, 215, 88 S.Ct. 1477, 1487, and in Part I of Mr. Justice Harlan's separate opinion in Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, but considering themselves bound by the decisions of the Court in those cases, join in the above opinion on these premises.

Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.

The Court's decision today marks an unfortunate retreat from our recent decisions enforcing the Constitution's command that those accused of criminal offenses be afforded their fundamental right to a jury trial. See, e.g. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). At the same time, the Court announces an alarming expansion of the nonjury contempt power, the excessive use of which we have so recently limited in Bloom v. Illinois, supra, and Cheff v. Schnackenberg, supra. The inescapable effect of this recession will be to put a new weapon for chilling political expression in the unrestrained hands of trial judges. Now freed from the checks and restraints of the jury system, local judges can achieve, for a term of years, significant control over groups with unpopular views through the simple use of the injunctive and contempt power together with a punitive employment of the probation device, the conditions of which offer almost unlimited possibilities for abuse. Because I do not desire to contribute to such a result, and because I believe the Court's rationale rests on a misreading of the probation statute, I must note my dissent.

I.

Today's decision stands as an open suggestion to the courts to utilize oppressive practices for avoiding, in unsettled times such as these, issues that must be squarely faced and for denying our minorities their full rights under the First Amendment. In order to inhibit, summarily, a group seeking to propagate even the least irritating views, a trial judge need only give a quick glance at the Court's opinion to recognize the numerous options now open to him. If, for instance, a large number of civil rights advocates, labor unionists, or student demonstrators are brought into court on minor trespass or disturbance charges, a jury will not be required even though the court proposes to control their lives for as long as five years. Without having to wait for a jury conviction, the trial judge would be free to impose, at will, such a lengthy probation sentence with onerous probation conditions—the effect of which could be oppressive. A trial judge need not wait until laws are violated and prosecutions are actually brought. He can simply issue a blanket injunction against an unpopular group, cite its members for contempt en masse for the slightest injunction violation, deny them a jury, and then, by...