United States v. Potvin

• Citation: 481 F.2d 380
• Decision Date: 24 August 1973
• Docket Number: No. 73-1151,73-1152.,73-1151
• Parties: UNITED STATES of America, Appellee, v. Mark POTVIN and Chuck Winslow, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

481 F.2d 380 (1973)

UNITED STATES of America, Appellee, v. Mark POTVIN and Chuck Winslow, Appellants.

Nos. 73-1151, 73-1152.

United States Court of Appeals, Tenth Circuit.

July 3, 1973.

Rehearing Denied August 24, 1973.

Daniel D. Bremer, Denver, Colo., for appellants.

Stephen M. Duncan, Sp. Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on the brief), for appellee.

Before HILL, SETH and HOLLOWAY, Circuit Judges.

SETH, Circuit Judge.

Appellants, with other persons not parties to this appeal, were charged in a two count indictment with cutting and chopping standing timber and commencing to build a structure on lands of the United States, and making settlement upon lands of the United States without a permit or the approval of a Forest Service officer. Appellants refused trial before the United States Magistrate (18 U.S.C. § 3401) and when brought before the District Court demanded a jury trial which was denied them.

The record shows that the defendants went on the National Forest and without a permit, other than a purported mineral location, built a lean-to and tepees. They began to live at this location; trees were cut down, and the construction of a log building was there begun. The walls of this building were constructed to a height of five to eight feet. The testimony by the Government witnesses established the charged settlement, the cutting of the trees, and the work on the log building by defendants and others. These actions were not denied by defendants.

Upon trial to the court, appellants were found guilty on both counts of the indictment. Each appellant was sentenced to serve ninety days on count I and each was placed on six months probation as to count II, the probation to begin following the ninety day sentence. The appellants then appealed to this court.

Appellants recognize and concede that a person charged with a petty offense has no constitutional right to a trial by jury. They do argue, however, that where Congress has not eliminated the right by specific legislation, there is a right to trial by jury for all federal crimes. Our decision in United States v. Floyd, Tenth Circuit, 1973, 477 F.2d 217, is dispositive of this argument. There we held that if an offense comes within the definition of a petty offense contained in 18 U.S.C. § 1(3), and has not been held to be a serious offense under prior United States Supreme Court decisions, a jury trial is not required.

The appellants' second contention presents the major issue on this appeal, which is whether a person charged with two or more petty offenses arising out of the same act, transaction, or occurrence, is entitled to a trial by jury when the potential aggregate penalty on all counts is in excess of six months imprisonment.

There appears to be no direct authority on the issue. In United States v. Merrick, 459 F.2d 644 (4th Cir.), the court by way of dictum noted that where the offense is "minor" as opposed to "petty," and the penalty may exceed six months imprisonment, the defendant has the right to trial by jury in the district court. It appears that the question as to cumulative penalties was not presented to the court. Cf. James v. Headley, 410 F.2d 325 (5th Cir.), wherein the question was presented in light of the right to counsel.

The District of Columbia and the state of New Mexico have held that the potential sentences facing a defendant should not be cumulated, and instead that each offense should be treated separately. See Scott v. District of Columbia, D.C. Mun.App., 122 A.2d 579; State v. James, 76 N.M. 416, 415 P.2d 543. New Jersey and Wisconsin, on the other hand, have held that a defendant facing a potential sentence in excess of that imposed for a petty offense, standing alone, because charged with more than one petty offense was entitled to a jury trial. State v. Owens, 54 N.J. 153, 254 A.2d 97, cert. den. 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514; State v. Burke, 24 Wis.2d 82, 128 N.W.2d 422.

Appellants urge that unless we find that a person charged with more than one petty offense is entitled to a jury trial, prosecutors throughout the nation will charge offenders with a series of petty offenses to obviate the requirement of a trial by jury. The Government, in support of its position, urges that unless we find no such right exists, an intolerable burden will be placed on the courts and prosecutors' offices or offenders will be allowed to commit...