United States v. Bishop

• Decision Date: 23 December 1966
• Docket Number: No. 41146.,41146.
• Citation: 261 F. Supp. 969
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Darrow Mead BISHOP et al., Defendants.

261 F. Supp. 969

UNITED STATES of America, Plaintiff, v. Darrow Mead BISHOP et al., Defendants.

No. 41146.

United States District Court N. D. California.

December 23, 1966.

Cecil F. Poole, United States Atty., Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.

Allan Brotsky, San Francisco, Cal., Peter Franck, Berkeley, Cal., and James T. Heavey, Oakland, Cal., for defendants.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

On December 14, 1966, the United States Attorney filed a new information at the request of the Court against the above-named defendants charging them with a violation of 62 Stat. 765 (1948), 18 U.S.C. § 1382 (1964) in that said defendants did knowingly go upon the Concord Naval Weapons Station for the purpose of violating a lawful regulation prohibiting the entry upon and into the station by any person without the consent and permission of the Commanding Officer.

Defendants elected under the provisions of 18 U.S.C. § 3401(b) to be tried in the District Court rather than by the Commissioner.

To the above information, defendants have entered their pleas of not guilty and demanded jury trial. The case is presently before the Court upon the motion of the United States to quash defendants' demand for jury trial.

Section 1382 provides in substance and effect that any person who goes upon any military or naval reservation for any purpose prohibited by law or lawful regulation shall be fined not more than $500 or imprisoned not more than six months or both.

It is the contention of the government that the above offense is a "petty offense" as defined by 62 Stat. 684 (1948), 18 U.S.C. § 1(3)¹ and that there is no right to jury trial. The government further argues that in respect to petty offense prosecutions for trespassing on military reservations and for disorderly conduct on federal property, it is well settled in this Court that there is no right to trial by jury, citing a number of unreported local decisions.²

The defendants on the other hand contend that under Article III³ and the Sixth Amendment⁴ of the United States Constitution all defendants charged with crimes and offenses have a right to trial by jury and that, especially in this case, the nature of the charged offense and the possible penalty are such that they have a constitutional right to trial by jury.

CONSTITUTIONAL ISSUE

With respect to defendants' contention that all persons charged with crimes and offenses have a constitutional right to trial by jury, defendants concede in their memorandum of points and authorities that the latest expression of the Supreme Court on this issue holds to the contrary. District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). Defendants argue that this decision was an erroneous interpretation of the Constitution, citing a number of authorities in support of their contention.

However, as recently as the 1966 Term, the Supreme Court approved its decision in Clawans; see Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). Although that decision involved the question whether one is entitled to a jury trial in a criminal contempt proceeding, the Court stated with respect to the right to jury trial in petty offenses:

"Cheff's argument is unavailing, for we are constrained to view the proceedings here as equivalent to a procedure to prosecute a petty offense, which under our cases does not require a jury trial. Over 75 years ago in Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (1888), this Court stated that `in that class or grade of offenses called "petty offenses," which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose,' a jury trial is not required. And as late as 1937 the Court reiterated in District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 661, 81 L.Ed. 843, that: `It is settled by the decisions of this Court * * * that the right of trial by jury * * * does not extend to every criminal proceeding. At the time of the adoption of the Constitution there were numerous offenses, commonly described as "petty", which were tried summarily with a jury * * *.' See also Natal v. State of Louisiana, 139 U.S. 621, 11 S.Ct. 636, 35 L.Ed. 288 (1891); Lawton v. Steele, 152 U.S. 133, 141-142, 14 S.Ct. 499, 502-503, 38 L. Ed. 385 (1894); Schick v. United States, 195 U.S. 65, 68-72, 24 S.Ct. 826, 827-828, 49 L.Ed. 99 (1904); District of Columbia v. Colts, 282 U.S. 63, 72-73, 51 S.Ct. 52, 53, 75 L.Ed. 177 (1930). Indeed, Mr. Justice Goldberg, joined by The Chief Justice and Mr. Justice Douglas, took the position in his dissenting opinion in United States v. Barnett, supra, 376 U.S. 681, at 751, 84 S.Ct. 984, at 1018 12 L. E.2d 23 that `at the time of the Constitution all types of "petty" offenses punishable by trivial penalties were generally triable without a jury. This history justifies the imposition without trial by jury of no more than trivial penalties for criminal contempts.'"

Defendants, however, contend that in their case the nature of the charged offense and the possible penalty are such that they are constitutionally entitled to a trial by jury.

It is true that mere definition of an offense as a "petty offense" does not necessarily mean that one is not constitutionally entitled to a trial by jury. Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930); Cheff v. Schnackenberg, supra 384 U.S. at 387, 86 S.Ct. 1523 (Douglas, J., dissenting). The Court is required to first consider the nature of the offense. District of Columbia v. Colts, supra 282 U.S. at 73, 51 S.Ct. 52, and, further to consider the maximum possible potential penalty. District of Columbia v. Clawans, supra 300 U.S. at 625, 57 S.Ct. 660.

Concerning the nature of the offense charged in this case, the new information in effect charges a trespass by defendants upon the reservation here involved. The allegation that the defendants went upon the station "for the purpose" of violating the regulation does not appreciably change the essential nature of the offense charged.

A mere entry upon a federal station is not malum in se and becomes a criminal petty offense under 18 U.S.C. § 1382 only because some statute or lawful regulation prohibits entry without permission.

Trespass upon property was not even a crime at common law, even though committed wilfully or maliciously or forcibly, unless accompanied by or tending to create a breach of the peace. (87 C.J.S. Trespass § 140 (1954).

No facts are alleged charging any circumstances which would amount to or tend to create, a breach of the peace in connection with the entry in question.

Although an entry or trespass upon a naval station for a purpose prohibited by statute or lawful regulation has been made a criminal offense by 18 U.S.C. § 1382, the purpose of the entry here in question, as alleged in the information, was merely to violate a regulation of the Commanding Officer prohibiting the entry itself without prior permission. No other, more serious purpose is charged. Although the defendants are jointly charged, they are not charged with having acted conspiratorily. This information necessarily limits the nature and the elements of the offense charged against defendants.

Such an entry or trespass would not have been triable by a jury at common law nor is it such as connotes any serious moral turpitude.

Concerning the maximum possible penalty, Title 18 U.S.C. § 1382 provides a penalty of a fine of not more than $500 or imprisonment for not more than six months or both.

In District of Columbia v. Clawans, supra, 300 U.S. at 627, 57 S.Ct. at 663, the Court stated: "* * * we may doubt whether summary trial with punishment of more than six months' imprisonment, prescribed by some pre-Revoluntary statutes, is admissible * * *." In Cheff v. Schnackenberg, the Court stated 384 U.S. at 379-380, 86 S.Ct. at 1526:

"According to 18 U.S.C. § 1 (1964 ed.), `any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months' is a `petty offense.' Since Cheff received a sentence of six months' imprisonment (see District of Columbia v. Clawans, supra, 300 U.S. at 627-628, 57 S.Ct. 660 at 663-664), and since the nature of criminal contempt, an offense sui generis, does not, of itself, warrant treatment otherwise (cf. District of Columbia v. Colts, supra), Cheff's offense can be treated only as `petty' in the eyes of the statute and our prior decisions. We conclude therefore that Cheff was properly convicted without a jury."

The Court concludes that the offense charged is not such as to come within the Constitutional guarantee of jury trial.

STATUTORY ISSUE

Having concluded that defendants are not entitled to a trial by jury as a matter of constitutional right, the Court must turn to the statutes to determine whether Congress has made any provision concerning the method of trial herein—more specifically whether Congress has spoken on the subject of the jury, non-jury method of trial in the District Court on an offense of the kind here involved.

72 Stat. 348 (1958), 18 U.S.C. § 3401 (a) (1964) provides in substance that a United States Commissioner has jurisdiction to try and sentence any person committing a petty offense in any place over which the Congress has exclusive power to legislate or over which the United States has concurrent jurisdiction.

Subdivision (b) of § 3401 provides, however, that any person charged with a petty offense may elect to be tried in the District Court of the United States and that the Commissioner shall apprise the defendant of his right and shall not proceed to try the case unless the defendant, after being so apprised, signs a written consent to be tried before the Commissioner.

18 U.S.C. § 3402 (1964) provides that an appeal lies from the judgment of the...