US v. Musgrave, Crim. A. No. 88-00002-C.

• Decision Date: 20 May 1988
• Docket Number: Crim. A. No. 88-00002-C.
• Citation: 695 F. Supp. 231
• Parties: UNITED STATES of America, Plaintiff, v. Sir Richard MUSGRAVE, Paul Shardlow, David Amos, Graeme Deighton, Defendants.
• Court: U.S. District Court — Western District of Virginia

695 F. Supp. 231

UNITED STATES of America, Plaintiff, v. Sir Richard MUSGRAVE, Paul Shardlow, David Amos, Graeme Deighton,¹ Defendants.

Crim. A. No. 88-00002-C.

United States District Court, W.D. Virginia, Charlottesville Division.

September 21, 1988.

Nunc Pro Tunc May 20, 1988.

Tom Bondurant, Asst. U.S. Atty., Roanoke, Va., for U.S.

Robert P. Boyle, Charlottesville, Va., for Musgrave.

Frederick W. Payne, Charlottesville, Va., for Shardlow.

James L. Camblos, III, Charlottesville, Va., for Amos.

MEMORANDUM OPINION

MICHAEL, District Judge.

On May 9, 1988, the court heard the joint motions of the defendants Sir Richard Musgrave, Paul Shardlow, and David Amos requesting a trial by jury on the seven count Information originally filed in this court on March 25, 1988, and superseded on May 11, 1988. At the conclusion of the hearing the court granted the defendants' motions, the court believing that the potential aggravated sentences the defendants could receive placed these particular crimes into the category of "serious offenses," thus implicating the defendants' right to a jury trial. Upon reflection, and after considering the state of the case law in this district on the matters raised by the defendants' motion, the court thought it wise to memorialize its ruling in the form of a memorandum opinion.

Defendants contend that, if convicted, they are in jeopardy of receiving aggregate jail sentences in excess of six (6) months incarceration and, thus, are entitled to a jury trial notwithstanding the fact that each individual count charges only a petty offense. The government, on the other hand, relies upon Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), and this court's more recent decision in United States v. Fletcher, 505 F.Supp. 1053 (W.D. Va.1981), in support of its contentions that the petty offense counts charged in the current Information are not "serious" and thus not triable by jury, and that the court should not aggregate the potential punishment in determining the classification of these offenses for jury trial purposes.²

The defendants' motion has caused this court to revisit its decision in Fletcher, here noting that in that case the precise issue concerning aggregation of penalties was neither raised by the parties therein nor addressed by the court. Since the decision in Fletcher, the Court of Appeals for the Fourth Circuit, in United States v. Jenkins, 780 F.2d 472 (4th Cir.1986), has interpreted Baldwin v. New York, supra, as establishing two criteria to guide the court in determining whether a crime is "serious" or "petty" for jury trial purposes. In that respect, Jenkins instructs that the court must look to: "1) the intrinsic nature of the offense itself, and 2) the maximum potential penalty," 780 F.2d at 474 (emphasis added), see also Baldwin, 399 U.S. at 69 n. 6, 90 S.Ct. at 1888 n. 6. In addition, the Jenkins court emphasizes that more weight should be given the maximum potential penalty element than to the element of the intrinsic nature of the offense.

The Fourth Circuit has not, however, yet addressed the precise issue raised here, namely, whether the defendants are entitled to a jury trial where, under federal law, they could receive an aggregate sentence in excess of six months.³ The Tenth Circuit Court of Appeals however, did address this issue in United States v. Potvin, 481 F.2d 380 (10th Cir.1973) and in Haar v. Hanrahan, 708 F.2d 1547 (10th Cir.1983).

The Potvin court was faced with the identical issue raised before this court, though the defendants in Potvin were charged only with two petty offenses arising out of the same transaction or occurrence. Here, of course, seven charges allegedly arise out of the same series of occurrences. The Tenth Circuit observed that a possibility of an aggregated one year jail penalty for the two offenses arising out of the same occurrence is "no less serious ... than if the defendant were charged with one offense having a potential penalty of one year's imprisonment." 481 F.2d at 382. The court held that defendants were entitled to a trial by jury. Id. at 383.

Though its later case of Haar v. Hanrahan, supra, was a habeas corpus proceeding addressing a slightly different set of charges against the petitioner, the Tenth Circuit explained that

Potvin implicitly recognizes that modern criminal codes contain proscriptions that are far more complex, detailed and extensive than the criminal law that existed at the time of the adoption of the Constitution ... In particular, it (Potvin) recognizes that, because modern criminal codes permit multiple charges to flow from a single discrete act of criminality, a criminal prosecution can threaten a defendant with the consequences of a serious offense, even though the defendant is not charged with

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