Bado v. United States

• Citation: 186 A.3d 1243
• Decision Date: 21 June 2018
• Docket Number: No. 12–CM–1509,12–CM–1509
• Parties: Jean–Baptiste BADO, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

186 A.3d 1243

Jean–Baptiste BADO, Appellant,

v.UNITED STATES, Appellee.

No. 12–CM–1509

District of Columbia Court of Appeals.

Argued En Banc June 14, 2016

Decided June 21, 2018

Alfred D. Carry, with whom Moses A. Cook, D.C. Law Students in Court, was on the brief, for appellant.

Lauren R. Bates, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, and Michelle A. Parikh, Assistant United States Attorneys, were on the brief, for appellee.

Alice Wang, with whom Samia Fam, Public Defender Service, and Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, were on the brief, as amici curiae, in support of appellant.

Kathy Doan, Heidi Altman, Claudia R. Cubas, and Rachel V. Jordan, Capital Area Immigrants' Rights (CAIR) Coalition, filed a brief, as amicus curiae, in support of appellant.

Before Blackburne–Rigsby, Chief Judge,^* Glickman, Fisher, Thompson, Beckwith, and Easterly, Associate Judges, and Washington,^** and RUIZ, Senior Judges.

Concurring opinion by Senior Judge Washington, at page 1262.

Concurring opinion by Associate Judge Thompson, at page 1266.

Dissenting opinion by Associate Judge Glickman, with whom Associate Judge Fisher joins, at page 1270.

Dissenting opinion by Associate Judge Fisher, with whom Associate Judge Glickman joins, at page 1271.

Ruiz, Senior Judge:

Jean–Baptiste Bado appeals his conviction for misdemeanor sexual abuse of a minor, after a bench trial, on the ground that he was denied the right to a jury trial guaranteed by the Sixth Amendment. The court, sitting en banc, is asked to decide whether the Sixth Amendment guarantees a right to a jury trial to an accused who faces the penalty of removal/deportation¹ as a result of a criminal conviction for an offense that is punishable by incarceration for up to 180 days. By itself, that period of incarceration does not puncture the six-month line past which an offense is deemed "serious" and jury-demandable. We hold that the penalty of deportation, when viewed together with a maximum period of incarceration that does not exceed six months, overcomes the presumption that the offense is petty and triggers the Sixth Amendment right to a trial by jury. The conviction is reversed and the case remanded for a jury trial.

I.

Appellant Jean–Baptiste Bado came to the United States on February 8, 2005, from Burkina Faso, where he was a pastor, fleeing at the time from "systematic[ ] prosecut[ion] and torture[ ]for his political and religious beliefs." Once in this country, he filed an application for asylum. His asylum proceeding continued for several years. It was halted in 2011, however, when he was charged by information with three counts of misdemeanor sexual abuse of a minor² because, if convicted, under U.S. immigration law he would be barred from receiving political asylum³ and removed from the United States.⁴ Appellant pleaded not guilty and demanded a jury trial, which was denied. At the bench trial, appellant took the stand and contradicted the charges, calling into question the complainant's credibility. He was acquitted of two of the charges but convicted of one count. He was sentenced to 180 days and ordered to pay $50 to the Crime Victims Compensation Program Fund and register as a sex offender for ten years. The United States commenced deportation proceedings on the basis of the conviction.

On appeal, a divided panel of the court reversed the conviction after concluding that appellant's right to a jury trial had been violated. Bado v. United States , 120 A.3d 50, 52 (D.C. 2015). On granting the government's petition for rehearing en banc, the division's opinions were vacated. Bado v. United States , 125 A.3d 1119 (D.C. 2015). After a further round of briefing by the parties and amici curiae, and oral argument, we now hold that appellant has a constitutional right to a jury trial. Therefore, we reverse his conviction and remand the case to permit appellant to have a trial free from structural error⁵ and to receive the "basic protection" of a trial before a jury. Sullivan v. Louisiana , 508 U.S. 275, 281–82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).⁶

II.

The Sixth Amendment guarantees a bundle of trial rights to the accused in "all criminal prosecutions." U.S. CONST. amend. VI. The first of these is "the right to a speedy and public trial, by an impartial jury ...." Id.⁷ The Supreme Court has interpreted the scope of the jury trial right, in the light of the common law, as applying to criminal prosecutions for "serious offenses." Duncan v. Louisiana , 391 U.S. 145, 157–58, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Criminal prosecutions for offenses that are not serious, but deemed to be "petty," may be tried by a judge without violating the Sixth Amendment.

The Supreme Court has set the parameters of what constitutes a "serious" offense under the Sixth Amendment. It is settled that any offense "where imprisonment for more than six months is authorized" cannot be considered "petty" for purposes of the right to trial by jury. Baldwin v. New York , 399 U.S. 66, 67, 69–70, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) (noting that the distinction between "felonies" and "misdemeanors" is not the constitutional dividing line and that some misdemeanors, such as "jostling,"⁸ are deemed serious offenses). In Blanton v. City of N. Las Vegas , 489 U.S. 538, 541–42, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989), the Court set out the analytical framework to determine whether a particular offense punishable by incarceration for six months or less is to be deemed "serious," triggering the constitutional right to a jury trial, or "petty," leaving the question of a jury trial to resolution under other applicable law.⁹ Noting that the maximum exposure to incarceration is usually the clearest indicator of the seriousness of an offense, the Court, following Baldwin's lead, stated that offenses with a maximum period of incarceration of six months are "presum[ptively] ... petty." Id. at 543, 109 S.Ct. 1289. The Court, however, declined to hold that all such offenses "automatically qualif[y] as [ ] ‘petty’ offense[s]," and established that the presumption can be overcome "if [the accused] can demonstrate 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." Id.

In Blanton the Court applied that test to a conviction for driving under the influence by assessing the statutorily authorized penalties that could be imposed upon conviction for DUI: incarceration from a minimum of two days to a maximum of six months, or, alternatively, 48 hours of community service dressed in clothing identifying the convicted defendant as a DUI offender; a maximum penalty of $1,000; a 90–day suspension of a driver's license; and mandatory attendance at an alcohol abuse education course at the offender's expense. 489 U.S. at 539, 544–45, 109 S.Ct. 1289. The Court made clear that, in evaluating the seriousness of the offense, it considered the "maximum authorized prison sentence," id. at 544, 109 S.Ct. 1289 (emphasis in original),¹⁰ and that it considered only those potential penalties that are actually faced by the particular defendant, id. at 545, & n.12, 109 S.Ct. 1289.¹¹ The Court reasoned that, because the maximum period of incarceration did not exceed six months, the offense was presumptively petty. Id. at 544, 109 S.Ct. 1289. It then "[c]onsider[ed] the additional statutory penalties." Id. Of the distinctive garb required if the person were alternatively sentenced to a short period of community service, the Court stated that, even if it were "the source of some embarrassment," it would be "less embarrassing and less onerous than six months in jail." Id.¹² The Court considered the license suspension and concluded it was not "that significant" as a Sixth Amendment matter, in part because the record was unclear as to whether the suspension would be concurrent with the six-month incarceration, in which case it would be "irrelevant," and because a restricted license could be obtained after forty-five days. Id. & n.9, 109 S.Ct. 1289.¹³ The Court dismissed the mandatory alcohol abuse education course as a "de minimis " requirement. Id. at n.9, 109 S.Ct. 1289. After taking into account all of the possible maximum statutory penalties that could be applied to the defendant, the Court concluded that "[v]iewed together, the statutory penalties are not so severe that DUI must be deemed a ‘serious’ offense for purposes of the Sixth Amendment." Id. at 545, 109 S.Ct. 1289. The Court applied a Blanton analysis one other time, in United States v. Nachtigal , another case that involved operating a motor vehicle while intoxicated. 507 U.S. 1, 2, 113 S.Ct. 1072, 122 L.Ed.2d 374 (1993). The possibility of a five-year probation and $5,000 fine did not convert the presumptively petty offense to a serious one for jury trial purposes, the Court held, because they did not approximate or entail as great a loss of liberty as the possibility of imprisonment for more than six months. Id. at 5, 113 S.Ct. 1072.

III.

We apply a Blanton analysis in this case. In light of the 180–day maximum exposure to incarceration for misdemeanor sexual abuse of a minor, we begin with the presumption that the offense is "petty" for Sixth Amendment purposes. The question before us is whether the possibility of deportation refutes that presumption. We note the obvious: there is no comparison between the penalty of deportation and the statutory penalties considered in Blanton (temporary license suspension, embarrassing clothing to be worn during two days of community service, and alcohol abuse education course) that were deemed not significant enough to render the DUI offense serious under the Sixth Amendment. Like incarceration, deportation separates a person...