U.S. v. Bencheck, 90-6072

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation926 F.2d 1512
Docket NumberNo. 90-6072,90-6072
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kevin L. BENCHECK, Defendant-Appellant.
Decision Date27 February 1991

Leslie M. Kaestner (Timothy D. Leonard, U.S. Atty. D. Okl., Melissa L. Pappamichiel, Captain, U.S. Army, Judge Advocate General's Corps, with her on the briefs), Asst. U.S. Atty., D. Okl., for plaintiff-appellee.

Jill M. Wichlens (Michael G. Katz, Federal Public Defender, with her on the briefs), Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.

Before BRORBY, BARRETT and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

In this case we revisit the question of whether a defendant is entitled by constitutional command to a jury trial when he faces only an actual maximum of six months' imprisonment stemming from charges for multiple petty offenses. We affirm the district court's decision that a defendant has no such entitlement.


The appellant (hereinafter Defendant) is Kevin L. Bencheck; the appellee is the United States (hereinafter Government). Mr. Bencheck was stopped by military police at Fort Sill, Oklahoma, in June 1989, for not having any face protection while riding his motorcycle, a minor Oklahoma traffic offense. The stop grew complicated because Mr. Bencheck, who is a civilian, vigorously refused to recognize the jurisdiction of the military police to detain him. The differences of opinion ultimately led to Mr. Bencheck's arrest and to various charges he violated Oklahoma law, including: 1) operating a motorcycle without a windshield, face shield or goggles; 1 2) failing to obey a lawful order of a law enforcement officer; 2 3) operating a motor vehicle without a valid operator's license; 3 4) malicious injury to property; 4 and 5) assault and battery of a police officer. 5 The state charges were assimilated into federal law for trial in the district court through the Assimilative Crimes Act. 6

Before trial the malicious injury to property charge was dismissed. At trial the district court refused to impanel a jury after promising not to sentence Mr. Bencheck to more than six months' imprisonment if he was found guilty; the court did not mention a possible fine. The Government's attorney and Mr. Bencheck's attorney agreed trial without a jury was appropriate. Mr. Bencheck, however, objected and requested a jury trial. The court nevertheless proceeded to try Mr. Bencheck itself. 7 The parties agree on the accuracy of the foregoing facts.

The four crimes at issue here are all misdemeanors. The maximum penalty upon conviction for each one is six months' imprisonment, a fine up to $500, or both. 8 An individual tried for all four crimes faces up to two years imprisonment if he is: 1) convicted of each crime; 2) sentenced to the maximum term of imprisonment for each crime; and 3) if all of the prison sentences run consecutively rather than concurrently. The statutory penalties, as applied to Defendant herein, exposed him to a potential imprisonment of eighteen months and ten days.

A motion for dismissal or for judgment of acquittal was granted for the charge of operating a motor vehicle without a valid license, but Defendant was convicted of the remaining three charges. Adhering to its promise not to sentence him to more than six months, the district court sentenced Defendant to concurrent terms of six months on the separate convictions of assault and battery of a police officer, and for operating his motorcycle without a windshield, face shield or goggles. The court then further sentenced Defendant to ten days for failure to obey the lawful order of a police officer. This sentence was also to run concurrently with the first two sentences, meaning Defendant would actually spend no more than ten days in jail. Defendant was placed on probation for the remainder of the six-month concurrent sentences.

The only issue on appeal is whether Mr. Bencheck was unconstitutionally denied a jury trial after the 1989 Supreme Court decision in Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). Defendant asserts Blanton overruled Tenth Circuit precedent established in Haar v. Hanrahan, 708 F.2d 1547 (10th Cir.1983). The Government, on the other hand, contends Haar is still good law and argues it is consistent with Blanton. Both parties agree our review of this question is de novo. Rife v. Godbehere, 814 F.2d 563, 564 (9th Cir.1987).


The right to a jury trial derives from the Constitution. "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury...." U.S. Const. art. III, Sec. 2, cl. 3. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." U.S. Const. amend. VI. The Supreme Court, as interpreter of the Constitution, has never read this language in absolute terms. The Court has instead construed it to except from its coverage a "category of petty crimes or offenses...." Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491 (1968). Recognizing the task of defining the breadth of this exception for petty crimes or offenses falls to the judiciary, id. at 160, 88 S.Ct. at 1453, the Court has discussed the exception as it applies to a single petty offense, contempt of court and fines. See Blanton, 489 U.S. at 539, 109 S.Ct. at 1290 (right to a jury trial when charged with single offense of driving under the influence of alcohol); Muniz v. Hoffman, 422 U.S. 454, 477, 95 S.Ct. 2178, 2190, 45 L.Ed.2d 319 (1975) (fine); Codispoti v. Pennsylvania, 418 U.S. 506, 512-13, 94 At the outset we acknowledge, following Supreme Court teachings, that drawing constitutional lines between petty and serious offenses is not easy. Also, we recognize that an individual who is threatened with imprisonment, even for a relatively short time, will not view the potential incarceration as a petty matter. The implications from even a short prison stay on an individual's psyche, personal relationships, reputation and career cannot be discounted. Thus, an individual has an important personal interest in a jury trial. This interest runs with the settled constitutional function of the jury as a body of peers that properly interposes itself between an accused and the accusing government. See, e.g., Duncan, 391 U.S. at 147-56, 88 S.Ct. at 1446-51; Baldwin v. New York, 399 U.S. 66, 73, 90 S.Ct. 1886, 1890, 26 L.Ed.2d 437 (1970) (plurality opinion). While we accept these teachings, we also note there are concerns and debate over the use of juries. Among the concerns is the time involved in administering a jury system. For example, 83,092 petty offenses, 56,763 of which were traffic offenses, were disposed of by United States Magistrates in 1987. Administrative Office of the United States Courts, Annual Report of the Director, Tables M-1A, M-2, at 393, 397 (1987). The federal judiciary, as it is presently constituted, cannot conduct over 83,000 jury trials in one year for this one class of cases in addition to the jury trials that are required for serious criminal cases and civil cases. Thus, the practical necessity for limiting the number of jury trials, so long as the Constitution is respected, is obvious.

S.Ct. 2687, 2691-92, 41 L.Ed.2d 912 (1974) (criminal contempt). See also Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969) (criminal contempt), aff'g 384 F.2d 276 (10th Cir.1967).

We adhere, as we must, to the precedents set by the Court, and it is not our function to even question the validity of the petty-offense exception. United States v. McAlister, 630 F.2d 772, 773 (10th Cir.1980). However, because the Court has never directly addressed the exception as it applies in the case of a defendant charged with multiple petty offenses, our difficult task is to square the Court's evolving theory with our own precedents. Suffice it to say, Defendant's argument that a recent decision of the Court calls into doubt one of our past holdings carries great force. In addressing this argument, we apply the Court's pronouncements to our prior law to test whether our views retain their vitality.


The Blanton defendants were charged with the single offense of driving while under the influence of alcohol (DUI). The state courts denied their respective pretrial demands for a jury trial since the maximum term of incarceration for the offense was only six months and the maximum possible fine was only $1,000. 489 U.S. at 540, 109 S.Ct. at 1291. For purposes of analysis, the Court assumed the defendants would receive the maximum authorized prison sentence, id. at 544, 109 S.Ct. at 1293, and then focused on the maximum penalty authorized by the legislature as the "most relevant ... criteria" for determining whether an offense is petty. Id. at 541, 109 S.Ct. at 1291 (quoting Baldwin, 399 U.S. at 68, 90 S.Ct. at 1888). In voicing its evolving preference for using legislative enactments as an objective standard by which to measure whether an offense is petty or serious, the Court said:

In fixing the maximum penalty for a crime, a legislature "include[s] within the definition of the crime itself a judgment about the seriousness of the offense." The judiciary should not substitute its judgment as to the seriousness for that of a legislature, which is "far better equipped to perform the task, and [is] likewise more responsive to changes in attitude and more amenable to the recognition and correction of their misperceptions in this respect."

Id. at 541-42, 109 S.Ct. at 1291-92 (citations omitted). See also Frank, 395 U.S. at 148, 89 S.Ct. at 1505 ("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. The Before Blanton, the Court decided a prison sentence exceeding six months is ...

To continue reading

Request your trial
11 cases
  • People v. Estevez
    • United States
    • New York City Court
    • January 6, 1995
    ...Maita v. Whitmore, 508 F.2d 143 [9th Cir.1974], cert. denied 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100 [1975]; United States v. Bencheck, 926 F.2d 1512 [10th Cir.1991]; United States v. Lumumba, 598 F.Supp. 209 [S.D.N.Y.1984], aff'd 794 F.2d 806 [2d Cir.1986], cert. denied 479 U.S. 855, 1......
  • People v. DiLorenzo, BTP-11
    • United States
    • New York City Court
    • March 31, 1992
    ...v. Whitmore, 508 F.2d 143 (9th Cir.1974), cert. denied 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100 (1975); United States v. Bencheck, 926 F.2d 1512 (10th Cir.1991); Rife v. Godbehere, 814 F.2d 563 (9th Cir.1987); United States v. Lumumba, 598 F.Supp. 209 (S.D.New York 1984); New Jersey v. O......
  • U.S. v. Novotny
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 29, 1993
    ...to be tried by a jury. We review de novo the question of denial of a criminal defendant's right to a jury trial. United States v. Bencheck, 926 F.2d 1512, 1514 (10th Cir.1991). Here, Defendant was not entitled to a jury trial because he (1) was not at risk of serving more than six months' i......
  • U.S. v. Coppins, 90-5555
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 16, 1991
    ...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 alternati......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT