United States v. Ramirez

• Decision Date: 17 January 1983
• Docket Number: Crim. No. S-82-90 MLS.
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Don E. RAMIREZ, Defendant.

555 F. Supp. 736

UNITED STATES of America, Plaintiff, v. Don E. RAMIREZ, Defendant.

Crim. No. S-82-90 MLS.

United States District Court, E.D. California.

January 17, 1983.

Donald B. Ayer, U.S. Atty., Kenneth G. Peterson, Asst. U.S. Atty., Sacramento, Cal., for plaintiff.

Don E. Ramirez, in pro. per.

OPINION AND MODIFIED ORDER

MILTON L. SCHWARTZ, District Judge.

On September 24, 1982, pursuant to the appeal of defendant-appellant ("defendant") from the magistrate's judgment of conviction, the court filed its order reversing the judgment and remanding the case to the magistrate. On November 23 a hearing was held on plaintiff-appellee's ("the Government") motion for reconsideration, at which defendant and counsel for the Government were both present. The court reviewed the written and oral arguments, granted the motion for reconsideration, and thereupon took the matter under submission. It now issues this opinion and modified order which supersedes and replaces the Order of September 24, 1982.

This modified order, the same as the September 24 order, reverses the judgment of conviction. Its purpose is to clarify the court's meaning and to articulate with more precision and in more detail the rationale on which it bases its ruling. For example, the court is informed that the September 24 decision has been construed by magistrates in this district as impliedly holding that in every misdemeanor case, including petty offenses, the magistrate is required to afford the defendant the right to appointed counsel. Such was not the intent of the order— which was restricted to the facts of this case, namely, the situation where a defendant in a petty offense case is not informed in advance that he will not be incarcerated in the event of his conviction.

I BACKGROUND AND STATUS OF THE APPEAL

Defendant was charged with a violation of 36 C.F.R. § 2.37(b) (1981), possession of marijuana on federal land. On April 19, 1982, prior to the commencement of trial scheduled for that day, defendant executed a written consent and waiver which specified, in pertinent part, as follows:

I hereby waive (give up) my right to trial, judgment and sentencing before a United States district judge, and I consent to trial, judgment and sentencing before a United States magistrate.

The written consent and waiver also recites that the magistrate explained to defendant the nature of the offense charged, the maximum possible penalties "which might be imposed if I am found guilty," and the "right to the assistance of legal counsel." It does not specify whether the advice as to the "maximum possible penalties" was the maximum allowed by law (see 36 C.F.R. § 1.3(a)) or the maximum the magistrate intended to impose in the event of conviction. Also, it does not include a waiver of the right to assistance of counsel; it only acknowledges that defendant was advised of this right.

Unhappily, there was no court-reporter record or sound recording made of the proceedings and it is therefore impossible to ascertain (1) whether defendant specifically waived his right to proceed without the assistance of retained counsel, (2) whether the magistrate advised defendant in advance of trial that his penalty, in the event of conviction, would not consist of imprisonment, or (3) whether, if the magistrate failed to advise in advance that there would be no imprisonment in the event of conviction, he advised defendant of his right to appointed counsel. The court can ascertain from the file only that the above consent and waiver was executed by defendant in advance of trial and that he proceeded to trial immediately thereafter without the assistance of counsel.

On April 20 the magistrate found defendant guilty and entered judgment suspending imposition of sentence and placing defendant on six months' probation subject, inter alia, to the following condition:

....

2. That defendant pay restitution in the sum of $50 by check or money order made payable to Clerk, U.S. District Court, and mailed to U.S. Magistrate, P.O. Box 4383, Redding, CA 96099 within thirty days.

(Emphasis in the original).

The case is now before the court on defendant's appeal from the judgment. Defendant contends that he "needs a chance to question the citing officer's testimony because there was some very questionable statements made ... and as a layman, he is not as familiar with court procedures." He also asserts that the imposition of the fifty dollar "restitution" and six months' probation are inconsistent. Construing his pro se pleading with the requisite liberality, see Ivey v. Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.1982), citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the court deems the appeal to raise two issues: first, whether defendant was denied his right to appointment of counsel, and, second, whether ordering of restitution is consistent with the requirements of the Probation Act, 18 U.S.C. § 3651.

A post-conviction review of the magistrate's judgment is governed by the same standards as an appeal from a judgment of a district court to the court of appeals. 18 U.S.C. § 3402; Rules of Procedure for the Trial of Misdemeanors Before United States Magistrates, Rule 7(e). Thus, the judgment is reversible only if it is clearly erroneous or contrary to law. United States v. Li, 510 F.Supp. 276, 277 (D.Haw. 1981); United States v. Williams, 220 F.Supp. 556, 557 (N.D.Cal.1963).

II RIGHT TO COUNSEL

A. Court Appointed Counsel

Generally, the defendant in a criminal prosecution has a constitutional right to have the court appoint counsel to represent him, if he is unable to retain counsel at his own expense. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In Argersinger, the Supreme Court held that the right to appointed counsel extends to misdemeanor and petty offense trials, at least where incarceration is actually imposed. Argersinger, 92 S.Ct. at 2012. In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court clarified the right insofar as concerns state court prosecutions, holding that "the Federal Constitution does not require a state trial court to appoint counsel for a criminal defendant" where imprisonment is not actually imposed. Id. 99 S.Ct. at 1160. The issue now before the court is whether Scott forecloses defendant's right to appointed counsel in federal petty offense prosecutions where imprisonment is a potential but is not actually imposed.¹

The opinion in Scott does not address the question of whether this rule is applicable to federal proceedings. The Court indicated, however, that the issue before it was the application of the federal constitution to state proceedings. Id. 99 S.Ct. at 1160, 1161, 1162. In citing Argersinger, the Court stated that "Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings to actual imprisonment." Id. 99 S.Ct. at 1162 (emphasis added). The Court also found that the requirement of actual imprisonment "has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States." Id. (emphasis added).

Thus, Scott addressed itself to the special problems confronted in applying provisions of the federal constitution to state proceedings.

The process of incorporation creates special difficulties, for the state and federal contexts are often different and application of the same principle may have ramifications distinct in degree and kind. The range of human conduct regulated by state criminal laws is much broader than that of the federal criminal laws, particularly on the "petty" offense part of the spectrum. As a matter of constitutional adjudication, we are, therefore, less willing to extrapolate an already extended line when, although the general nature of the principle sought to be applied is clear, its precise limits and their ramifications become less so.

Id. 99 S.Ct. at 1161.

A close reading of Scott, in light of Argersinger, indicates that it only addresses the right to appointed counsel in state court proceedings.² As such, this court must determine the extent of the right to appointed counsel in a federal petty offense proceeding before a United States Magistrate.

This case was tried before a magistrate pursuant to 18 U.S.C. § 3401. Thus, the Rules of Procedure for the Trial of Misdemeanors before United States Magistrates "Magistrate Rules" were applicable. Rule 1(b) provides that "except as specifically provided by these rules, the Federal Rules of Criminal Procedure govern all proceedings except those concerning petty offenses for which no sentence of imprisonment will be imposed." "The term `petty offenses for which no sentence of imprisonment will be imposed,' as used in these rules, means any petty offenses, regardless of the penalty authorized by law, as to which the magistrate determines that, in the event of conviction, no sentence of imprisonment will actually be imposed in the particular case." Magistrate Rules, Rule 1(c). A careful reading of Rule 1(c) discloses that the magistrate must make a determination before conviction that imprisonment will not be imposed.³

By reason of these rules, unless the magistrate commits on the record prior to trial that any sentence will not include imprisonment, the case is not a "petty offense for which no sentence of imprisonment will be imposed." In such a case, the Federal Rules of Criminal Procedure, including the provision for appointment of counsel in Rule 44, would apply unless a specific exception was contained in the Magistrate Rules. Magistrate Rule 2(b)(3) requires the magistrate, at the initial appearance, to inform defendant that "unless he is charged with a petty offense for which appointment of counsel is not required, he has the right to request...