U.S. v. Hamdan, 75-3758

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation552 F.2d 276
Docket NumberNo. 75-3758,75-3758
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ali Ahmed HAMDAN and Shirley Ann Bush, Defendants-Appellants.
Decision Date25 February 1977

John L. Weir, San Francisco, Cal., for defendants-appellants.

James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before BROWNING and WALLACE, Circuit Judges, and VAN PELT, * District Judge.


Hamdan and Bush were convicted after a court trial of violating 8 U.S.C. § 1306(c) by making false statements in documents filed with the Immigration and Naturalization Service. Both claim that they were improperly denied a jury trial and the evidence was insufficient to support their convictions.

Hamdan is a citizen of Jordan, admitted to the United States as a nonimmigrant student. Bush is a citizen of Panama and a permanent resident alien. They were married on July 23, 1974. In August 1974 Hamdan applied for permanent resident status, alleging he resided with Bush in Foster City, California. At the same time, Bush filed a supporting document stating she resided with Hamdan. Later investigation revealed Bush actually lived in an apartment in San Francisco.

A complaint was filed charging Hamdan and Bush with violating section 1306(c), which authorizes imposition of a fine of not more than $1,000, imprisonment for not more than six months, or both. They refused to consent to trial before a magistrate. 18 U.S.C. § 3401(b). The district judge denied their motion for a jury trial, and after hearing the evidence found them guilty.

Hamdan and Bush contend the denial of a jury trial was constitutional error. Article III, section 2 of the Constitution provides: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . ." The Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ."

At the time these provisions were adopted, the common law practice in both England and the Colonies was to try persons accused of certain "petty offenses" without a jury. Thus, in spite of the all-inclusive language of the Constitution, it has been held that there is no right to a jury trial in the prosecution of a petty offense. Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Cheff v. Schnackenberg, 384 U.S. 373, 379, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966) (plurality opinion); District of Columbia v. Clawans, 300 U.S. 617, 624-26 & nn. 2-4, 57 S.Ct. 660, 81 L.Ed. 843 (1937).

The Court of Appeals for the District of Columbia Circuit has held that if the accused is an individual, the line of demarcation between serious and petty offenses for purposes of the Sixth Amendment right to jury trial should be drawn in accordance with the standard provided by 18 U.S.C. § 1(3) when the penalty is a fine as well as when it is imprisonment. Douglass v. First National Realty Corp., 543 F.2d 894 (D.C.Cir.1976). This solution best accommodates the interests involved.

A jury is interposed to protect the accused from the power of government when the charge against him is a serious one. Baldwin v. New York,399 U.S. 66, 72, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). An offense may be serious enough to require a jury trial because of the severity of the penalty, aside from the inherent nature of the crime. Id. at 69 n. 6, 90 S.Ct. 1886.

The usual penalties are fine and imprisonment. As to imprisonment, the Supreme Court has drawn the line at six months, in part because 18 U.S.C. § 1(3) establishes this maximum period of incarceration as an objective criterion of a "petty offense." Duncan v. Louisiana, 391 U.S. 145, 161, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Frank v. United States, 395 U.S. 147, 150-51, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969). The statutory definition reflects Congress's "long-standing judgment that '(n)otwithstanding any Act of Congress to the contrary . . . (a)ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.' " Baldwin v. New York, supra, 399 U.S. at 73 n. 21, 90 S.Ct. at 1890. 1

As to a fine, the Supreme Court in Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975), declined to adopt section 1(3)'s $500 maximum as the invariable criterion of an offense triable without a jury. The Court did not say that a fine could never be of sufficient magnitude to require a jury trial. 2 The Court noted, however, that for purposes of determining the seriousness of an offense, imprisonment and fine "are intrinsically different." Id. at 477, 95 S.Ct. 2178. A six months' jail sentence "is a serious matter for any individual," but "it is not tenable to argue that the possibility of a $501 fine would be considered a serious risk to a large corporation or labor union." Id. The union involved in Muniz had 13,000 members. The fine imposed upon the union was $10,000, or about 75 cents for each member. This fine, the Supreme Court held, was not "a deprivation of such magnitude that a jury should have been interposed to guard against bias or mistake." Id.

The dissent concludes that because section 1(3)'s monetary standard was not applied in Muniz it is not available in this case and that Muniz compels us to make a "case-by-case evaluation of 'the seriousness of the risk and the extent of the possible deprivation.' " This generalization is not further particularized. The dissent simply concludes that appellants failed to demonstrate that "a possible $1000 fine imposes such a risk upon them that a jury trial is constitutionally required."

This is not a satisfactory solution.

If the "seriousness of the risk and the extent of the deprivation" were to be evaluated on the basis of the circumstances of each case, the ability of the particular defendant to pay a particular fine would be an important factor. This would mean that where the statute fixes a maximum monetary penalty, as in this instance, some persons accused of the offense would be entitled to a jury trial and others charged with the same offense would not, depending upon the extent of the individual defendant's financial resources. This determination would have to be made in advance of trial in order to decide whether a jury was required as to the particular defendant. Where the maximum fine is not stipulated by statute (as in the case of most criminal contempts), the fine to be imposed if the accused were convicted, as well as his ability to pay it, would have to be determined in advance of the trial.

Moreover, the "seriousness of the risk and the extent of the possible deprivation" does not afford a workable standard for deciding specific cases with any reasonable degree of uniformity or predictability. Trial and appellate judges would have no guide for determining whether the deprivation was serious enough to require a jury trial except their own judgment concerning the seriousness of the risk. Even if the determination were confined to financial considerations, the potential for varying judgments would be great.

The Supreme Court has repeatedly asserted that the right to a jury trial should depend not upon the predelictions of the particular judge, but upon application of objective standards reflected in the law and practices of the community in the federal system, the standards articulated in section 1(3). Duncan v. Louisiana, supra, 391 U.S. at 161, 88 S.Ct. 1444; Frank v. United States, supra, 395 U.S. at 148, 151, 89 S.Ct. 1503; Baldwin v. New York, supra, 399 U.S. at 70-76, 90 S.Ct. 1886. See also District of Columbia v. Clawans, 300 U.S. 617, 627-28, 57 S.Ct. 660, 81 L.Ed. 843 (1937). As the District of Columbia Circuit said in Douglass v. First National Realty Corp., supra, 543 F.2d at 902, "nowhere else in federal law or practice are we able to detect any other benchmark of seriousness or pettiness in monetary criminal penalties."

Clearly, the interests of uniformity, objectivity, and practical judicial administration would be served by accepting this statutory standard as the monetary measure of a serious offense for the purposes of the right to jury trial. It is not unrealistic to treat any fine in excess of $500 as a serious matter to all individuals, even though they may vary in their ability to sustain incarceration far in excess of six months. 3 Muniz is not to the contrary. Nothing in the opinion in that case suggests that a jury trial would not have been required if the fine imposed had had the impact of a $500 fine upon each of the 13,000 individuals who were members of the union. 4

We hold, therefore, that appellants are entitled to a jury trial.


WALLACE, Circuit Judge, dissenting:

I respectfully dissent.

The problem before us is to distinguish "petty" from "serious" offenses. Courts have focused on two criteria in distinguishing petty from serious crimes. The first criterion is the intrinsic nature of the crime regardless of the authorized punishment. See Callan v. Wilson, 127 U.S. 540, 555-57, 8 S.Ct. 1301, 32 L.Ed. 223 (1888). It was thought at one time that the classification of an offense depended "primarily upon the nature of the offense." District of Columbia v. Colts, 282 U.S. 63, 73, 51 S.Ct. 52, 53, 75 L.Ed. 177 (1930). 1

There is a recent trend, however, which emphasizes the relevance of the maximum punishment authorized by the statute violated. Muniz v. Hoffman, 422 U.S. 454, 480 n. 6, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975) (Douglas, J., dissenting); Codispoti v. Pennsylvania, 418 U.S. 506, 511-12, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). This criterion provides a more objective and workable...

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