818 F.2d 687 (9th Cir. 1987), 86-1191, United States v. Smith

Docket Nº:86-1191 to 86-1194.
Citation:818 F.2d 687
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Douglas D. SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. J. David Leeper MOSS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert V. SIEBER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daniel R. DELANEY, Defendant-Appe
Case Date:May 27, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 687

818 F.2d 687 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Douglas D. SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

J. David Leeper MOSS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert V. SIEBER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Daniel R. DELANEY, Defendant-Appellant.

Nos. 86-1191 to 86-1194.

United States Court of Appeals, Ninth Circuit

May 27, 1987

Argued and Submitted Jan. 12, 1987.

Page 688

Thomas J. Hopkins, Sacramento, Cal., for plaintiff-appellee.

Larry Barlly, Sacramento, Cal., for defendants-appellants.

Page 689

Appeal from the United States District Court for the Eastern District of California.

Before WALLACE, SKOPIL and CANBY, Circuit Judges.

WALLACE, Circuit Judge:

Smith, Delaney, Sieber, and Moss (the demonstrators) appeal from the district court's imposition of a $25 assessment on each of them pursuant to 18 U.S.C. Sec. 3013. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

On December 27, 1985, a demonstration occurred on the grounds of the Federal Building in Sacramento, California to protest United States policy in Central America. As a symbol of the protest, the participants bore a casket which they avowedly intended to bury in the Federal Building grounds. As certain of the participants, including the demonstrators, attempted to dig up a portion of the Federal Building lawn, they were arrested.

The demonstrators were charged with willfully damaging government property in violation of 40 U.S.C. Sec. 486(c) and 41 C.F.R. Sec. 101-20.303 (1985). The demonstrators were tried before a magistrate, who found them guilty and imposed a $50 fine, plus the $25 flat assessment for misdemeanants mandated by 18 U.S.C. Sec. 3013. They appealed to the district court, which affirmed the magistrate's decision. The demonstrators then appealed the ruling of the district court.

On appeal, the demonstrators attack only the imposition of the mandatory $25 assessment, not the fine itself. They assert that the assessment is a punishment that violates the eighth amendment and the due process and equal protection clauses of the fifth amendment. They argue in the alternative that, if the assessment is not a punishment, its imposition on them without resort to a jury trial violates their rights under the seventh amendment.

II

The statute involved in this appeal directs that "[t]he court shall assess on any person convicted of an offense against the United States--in the case of a misdemeanor--the amount of $25 if the defendant is an individual." 18 U.S.C. Sec. 3013(a)(1)(A).

We consider first the threshold question of whether this $25 assessment imposed on the demonstrators pursuant to section 3013 is a punishment. Unfortunately, the circuit courts are divided on this issue. While the demonstrators cite the holding of the Tenth Circuit in United States v. Mayberry, 774 F.2d 1018 (10th Cir.1985) (Mayberry ), to support their contention that the assessment is a punishment, the government relies on the Third Circuit's opinion in United States v. Donaldson, 797 F.2d 125 (3d Cir.1986) (Donaldson ), to support its contention that it is not.

Donaldson offers little help. The court, in rejecting Donaldson's contention that the rule of lenity applies, held that the statute did not define a substantive crime or set a sentence to be imposed for a criminal offense, but instead merely levied a nominal assessment against convicted defendants as a revenue-raising measure. The court emphasized that Donaldson conceded that section 3013 was not a punishment. Based on this concession, the court concluded that section 3013 was not a criminal statute. Id. at 127. Donaldson provides no analysis of congressional intent on the issue presented here. The Eighth Circuit recently adopted the conclusion that section 3013 is not punitive...

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