U.S. v. Lewis

• Decision Date: 05 September 1995
• Docket Number: No. 1698,D,1698
• Citation: 65 F.3d 252
• Parties: UNITED STATES of America, Appellee, v. Ray A. LEWIS, Defendant-Appellant. ocket 94-1701.
• Court: U.S. Court of Appeals — Second Circuit

Page 252

65 F.3d 252

64 USLW 2223

UNITED STATES of America, Appellee, v. Ray A. LEWIS, Defendant-Appellant.

No. 1698, Docket 94-1701.

United States Court of Appeals, Second Circuit.

Argued June 20, 1995.

Decided Sept. 5, 1995.

Steven M. Statsinger, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City, for defendant-appellant.

James Walden, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY (Zachary W. Carter, United States Attorney, Susan Corkery, Assistant United States Attorney, on the brief), for appellee.

Before: KEARSE, ALTIMARI and PARKER, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Ray Lewis ("Lewis") appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), convicting him, following a bench trial, of two counts of obstructing the mails. Lewis contends that he was improperly denied a jury trial in light of the fact that the maximum potential aggregate sentence for his two charges exceeded six months. The district court, however, held that, for the purpose of determining a defendant's right to a jury trial, penalties should not be aggregated. Because Congress has given no indication that multiple offenses are more serious by virtue of their multiplicity than are single offenses of the same nature, the right to a jury trial cannot depend upon the maximum potential aggregate term of incarceration. Accordingly, we affirm the judgment of the district court.

BACKGROUND

Lewis, a postal worker, was charged with two counts of obstructing the mail in violation of 18 U.S.C. Sec. 1701. The maximum sentence for each count was six months' imprisonment, a hundred dollar fine and a ten dollar special assessment. Prior to trial, the government moved to have Lewis tried without a jury. Magistrate Judge Azrack granted the government's motion, but stated that she would not "sentence Mr. Lewis to more than six months in prison under any circumstances...." On February 25, 1994, Lewis was convicted of both counts and sentenced to three years of probation on each count to run concurrently.

Lewis appealed the denial of a jury trial to the district court, which on December 7, 1994 affirmed Magistrate Judge Azrack's determination. The district court held that the right to a jury trial was not determined by the severity of the sentences for the offenses in their aggregate, but rather by the severity of the sentences for each charge individually. Thus, according to the district court, "a defendant is entitled to a jury trial only if he faces a maximum sentence greater than six months for any single offense that is charged."

Lewis now appeals the determination of the district court.

DISCUSSION

The United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." U.S. Const. amend. VI. Despite the absolute language of the Sixth Amendment, the Supreme Court has made clear that a jury trial is required for only those offenses that are In order to determine whether or not an offense is "serious," the Supreme Court has looked to "objective criteria." Baldwin v. New York, 399 U.S. 66, 68, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970) (plurality opinion). According to the Court, the best objective indicator of the seriousness of an offense is "the severity of the maximum authorized penalty." Id. Implicit in the maximum penalty is Congress's view as to the seriousness of that crime. See Blanton v. North Las Vegas, 489 U.S. 538, 541, 109 S.Ct. 1289, 1292, 103 L.Ed.2d 550 (1989); Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162 (1969). The legislature is better equipped than is the judiciary to measure public sentiment as to the seriousness of respective offenses and is more responsive to changes in the public attitude. See Blanton, 489 U.S. at 541-42, 109 S.Ct. at 1292-93; see also Landry v. Hoepfner, 840 F.2d 1201, 1209 (5th Cir.1988) (en banc), cert. denied, 489 U.S. 1083, 109 S.Ct. 1540, 103 L.Ed.2d 844 (1989). Thus, the maximum authorized penalty for a particular offense is a strong indicator of the present sentiment as to the seriousness of that crime.

"serious" in nature; bench trials are sufficient for "petty" offenses. See Duncan v. Louisiana, 391 U.S. 145, 159-62, 88 S.Ct. 1444, 1452-54, 20 L.Ed.2d 491 (1968).

While courts are instructed to look at all potential modes of punishment for a particular offense (e.g. incarceration, probation, fines, etc.), "[p]rimary emphasis ... must be placed on the maximum authorized period of incarceration." Blanton, 489 U.S. at 542, 109 S.Ct. at 1292. Regardless of any other possible punishment, the Supreme Court has determined that "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized." Baldwin, 399 U.S. at 69, 90 S.Ct. at 1888. Accordingly, any defendant facing in excess of six months incarceration for a single offense is entitled to a jury trial.

The question which remains unanswered by the Supreme Court, however, is whether an individual potentially facing over six months imprisonment for multiple petty offenses is entitled to a jury trial. Those courts which have addressed this question to date are in agreement that potential sentences must be aggregated to determine the right to a jury trial. See United States v. Coppins, 953 F.2d 86, 90 (4th Cir.1991); United States v. Bencheck, 926 F.2d 1512, 1518 (10th Cir.1991); Rife v. Godbehere, 814 F.2d 563, 565 (9th Cir.1987); see also United States v. Musgrave, 695 F.Supp. 231, 233 (W.D.Va.1988); United States v. O'Connor, 660 F.Supp. 955, 956 (N.D.Ga.1987); United States v. Coleman, 664 F.Supp. 548, 549 (D.D.C.1985); United States v. FMC Corp., 428 F.Supp. 615, 620 (W.D.N.Y.1977), aff'd on other grounds, 572 F.2d 902 (2d Cir.1978). These courts reason, in essence, that "defendants can view as no less serious a possible penalty of [over six months] in prison when charged with [multiple] offenses ... than if charged with one offense having a potential penalty of [greater than six months].... Nor ... should [a] court view the offenses any less seriously." Coppins, 953 F.2d at 90 (quoting United States v. Potvin, 481 F.2d 380, 382 (10th Cir.1973)).

We reject the reasoning of these courts. When determining a defendant's rights under the Sixth Amendment, the mere possibility of consecutive sentences exceeding six months' imprisonment is insufficient to trigger a defendant's right to a jury trial. We believe that in reaching the opposite conclusion, the courts discussed above failed to focus on the appropriate objective criteria for determining the seriousness of multiple offenses tried together. The Supreme Court has made clear that courts should look to Congress's determination as to the seriousness of a particular offense. Indeed, the Court has explicitly stated that "[t]he judiciary should not substitute its judgment as to seriousness for that of [the] legislature...." Blanton, 489 U.S. at 541, 109 S.Ct. at 1292. While those courts that have previously addressed the question have focused upon the defendant's view as to the seriousness of facing over six months imprisonment for aggregate sentences, the appropriate inquiry is how seriously Congress views the offenses in the aggregate.

Congress has not indicated that multiple offenses for which a defendant is prosecuted jointly are necessarily any more serious in their aggregate than the most serious individual offense. Rather, 18 U.S.C. Sec. 3584(a) provides that, except as mandated by court order or statute, "[m]ultiple terms of imprisonment imposed at the same time run concurrently." Thus, the presumption under Sec. 3584(a) is that multiple offenses prosecuted jointly are no more serious in their aggregate than...