US v. Downin, CR. S-94-315 LKK.

• Decision Date: 09 May 1995
• Docket Number: No. CR. S-94-315 LKK.,CR. S-94-315 LKK.
• Citation: 884 F. Supp. 1474
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Duane DOWNIN, Defendant/Appellant.

884 F. Supp. 1474

UNITED STATES of America, Plaintiff/Appellee, v. Duane DOWNIN, Defendant/Appellant.

No. CR. S-94-315 LKK.

United States District Court, E.D. California.

May 9, 1995.

COPYRIGHT MATERIAL OMITTED

Lisa C. Ridge, Asst. U.S. Atty., Sacramento, CA, for plaintiff.

Mary M. French, Asst. Federal Defender, Sacramento, CA, for defendant.

ORDER

KARLTON, Chief Judge Emeritus.

This matter is before the court on appeal from a conviction by the magistrate judge. The magistrate judge had jurisdiction over the misdemeanor offense under 18 U.S.C. § 3401, and this court has jurisdiction over the appeal pursuant to 18 U.S.C. § 3402. For the reasons explained below, the judgment is reversed.

I. FACTS

Appellant was convicted in Redding, California, on June 16, 1994, of violating 36 C.F.R. § 261.6.(e), which prohibits hauling untagged timber. Appellant was stopped by a Forest Service agent on March 13, 1994, while driving his pickup truck in the Humbug area of the Klamath National Forest. Appellant had a valid woodcutting permit, but his load was not tagged as required by law and specified in the permit. Appellant told the officer that he was not finished loading his truck. At trial, the officer testified that the truck was full, and Appellant's passenger testified that there was empty space at the back of the bed although wood was stacked "to the top of the racks." Tr. 13:9-14, 26:17-19.¹

At arraignment, the magistrate judge informed Appellant of the maximum penalties of six months imprisonment and a $5,000 fine. Appellant was also informed that the Government sought a $200 fine and one year probation. The magistrate judge advised Appellant that he was not entitled to appointed counsel on the basis of "what the government's seeking." Arraignment Tr. 6:10-14 (May 17, 1994).

At the court trial, Appellant represented himself and the Government was represented by Richard Coots, a Forest Service officer. Because Appellant cannot read, his wife was permitted to assist him at trial, but she was not permitted to speak on his behalf.

During Appellant's cross-examination of the arresting officer, Appellant asked whether Officer Smith had threatened to impound his truck. The officer testified that he did not recall making such a statement, but that he could properly have impounded the vehicle because Appellant was driving on a suspended license. The magistrate judge asked Officer Smith about the nature of the license suspension, which had resulted from a drunk driving conviction. Appellant's wife objected to the magistrate's questions about the conviction. The magistrate stated that it was irrelevant to the charges before him, but that he wanted the information to "give me a fuller understanding as to what's going on, the circumstances as to what's going on." Tr. 20:13-21:25. There was brief discussion of the nature and status of the license suspension and DUI case. The matter was not raised again by any party or the magistrate judge.

Appellant was found guilty and sentenced to two years informal probation and a fine. Tr. 39:17-40:11. Appellant argues that his conviction is invalid because (1) he was denied appointed counsel; (2) the court improperly admitted irrelevant and prejudicial evidence regarding the DUI conviction; and (3) the Government was represented at trial by a non-attorney.

II. STANDARDS

The issues raised on appeal are questions of law, subject to de novo review. See United States v. Robinson, 913 F.2d 712, 714 (9th Cir.1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1006, 112 L.Ed.2d 1089 (1991) (right to counsel); United States v. Sanchez-Robles, 927 F.2d 1070, 1077 (9th Cir.1991) (admissibility of evidence).

III. APPOINTMENT OF COUNSEL

Both the Sixth Amendment and Fed.R.Crim.P. 44(a) guarantee the right to counsel in criminal proceedings. United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir.1979). Despite the uncompromising language of the Amendment,² the High Court has held that right does not extend to all state misdemeanor and petty offenses. See Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012-13, 32 L.Ed.2d 530 (1972) (recognizing limited right to counsel under Sixth Amendment in state misdemeanor cases). The applicability of the federal rules is also limited in the case of certain petty offenses. See Fed.R.Crim.P. 58(a)(2). This appeal raises two serious questions of law that are unresolved in this circuit:³ (1) whether the Sixth Amendment right to counsel in federal court is limited by the rule announced in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); and (2) whether the right to counsel provided by the federal rules is co-extensive with the Sixth Amendment.

In Scott, the Supreme Court held that appointed counsel is constitutionally required in state misdemeanor cases only when a sentence of imprisonment is actually imposed. 440 U.S. at 373, 99 S.Ct. at 1161-62. Under this rule, the denial of appointed counsel limits the permissible sentence for a misdemeanor, but the authorized potential sentence does not determine whether the right to counsel arises. Id.; see also Argersinger, 407 U.S. at 40, 92 S.Ct. at 2014. In the present case, no sentence of imprisonment was ultimately imposed. Accordingly, if the Scott limitation applies, the denial of appointed counsel in the case at bar did not violate Appellant's constitutional rights.

Appellant relies on a 1983 decision by a member of this court, which holds that Scott does not apply to federal misdemeanors. United States v. Ramirez, 555 F.Supp. 736 (E.D.Cal.1983). Ramirez concludes that the right to appointed counsel exists in federal court whenever a sentence of imprisonment is authorized, unless the judge states on the record, before trial, that such a sentence will not be imposed. Id. at 741. Appellant argues that his conviction is invalid because the magistrate judge advised him that he was ineligible for a court-appointed attorney, without explicitly stating on the record that he had determined not to impose jail time in the event of conviction.⁴

Neither the Ninth Circuit nor the Supreme Court has squarely addressed the question whether Scott applies to federal misdemeanors. Ramirez bases its holding on the implicit premise that Scott defines only those elements of the Sixth Amendment which are applicable to state proceedings under the fundamental fairness doctrine, rather than the full scope of the Amendment as it applies directly in federal courts and to the states by selective incorporation. See Ramirez, 555 F.Supp. at 739-40; United States v. Reilley, 948 F.2d 648, 652-53 (10th Cir.1991) (discussing application of Sixth Amendment to the states via the Fourteenth Amendment, and disagreeing with Ramirez on the merits).

The Tenth Circuit, the only court of appeals to have directly addressed the question, concludes that Scott defines the scope of the Sixth Amendment right to counsel for federal court and selective incorporation purposes. Reilley, 948 F.2d at 653. I cannot agree that the language of Scott requires this conclusion. See Scott, 440 U.S. at 372, 99 S.Ct. at 1161 (expressing concern about extension of Sixth Amendment rights in state proceedings). Scott's express concern with the application of federal constitutional requirements in the state context implicates fundamental fairness analysis. Read as a fundamental fairness case, Scott does not mark the outer limit of the Sixth Amendment in federal court.

The question remains open in this circuit. Although the Ninth Circuit has cited Scott generically as a Sixth Amendment rule, it has done so only in the context of uncounselled state convictions and their federal consequences. See, e.g., United States v. Quemado, 26 F.3d 920, 923 (9th Cir.1994). Such citation neither asks nor answers the question whether the Sixth Amendment right to counsel applicable to the states is the same as that applicable in federal court.⁵ Similarly, the court's holding that an uncounselled federal misdemeanor conviction cannot support subsequent imprisonment for probation violation does not address the constitutional standards applicable in the underlying proceeding. United States v. Foster, 904 F.2d 20, 21 (9th Cir.1990).⁶

Because no binding authority governs the constitutional question, and because this court has a duty to avoid constitutional questions where statutory resolution is available, see Hagans v. Lavine, 415 U.S. 528, 549, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577 (1974), I turn to Appellant's alternative argument that the denial of counsel in his case violated the Federal Rules of Criminal Procedure.

The Ninth Circuit has suggested in dicta that Fed.R.Crim.P. 44(a) creates a right to counsel independent of the Sixth Amendment. Leavitt, 608 F.2d at 1293. Congress is, of course, free to establish legal standards higher than the constitutional minima. The question is whether the federal rules do so.

Rule 44(a) provides that "every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent that defendant at every stage of the proceedings." Rule 58(a)(2), which governs trial of misdemeanor and petty offenses, limits the applicability of Rule 44 "in proceedings concerning petty offenses for which no sentence of imprisonment will be imposed."⁷ The term "petty offense for which no sentence of imprisonment will be imposed" means any petty offense as to which "the court determines that, in the event of a conviction, no sentence of imprisonment will actually be imposed." Rule 58(a)(3). Accordingly, Rule 44(a)'s guarantee of appointed counsel applies to all misdemeanors except those petty offenses in which a pretrial determination is made by the judge to exclude incarceration from the range of potential sentences. See United States v. Rojo, 727 F.2d 1415, 1418 (9th Cir.1983) (interpreting identical language from Rule 58's predecessor, the Rules of Procedure of the Trial of Misdemeanors before United States...