United States v. Ali Ahmed Hamdan and Shirley Ann Bush

552 F.2d 276 40 A.L.R.Fed. 866 UNITED STATES of America, Plaintiff-Appellee, v. Ali Ahmed HAMDAN and Shirley Ann Bush, Defendants-Appellants. No. 75-3758. United States Court of Appeals, Ninth Circuit. Feb. 25, 1977. John L. Weir, San Francisco, Cal., for defendants-appellants. James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before BROWNING and WALLACE, Circuit Judges, and VAN PELT, * District Judge. PER CURIAM: 1 Hamdan and Bush were convicted after a court trial of violating 8 U.S.C. § 1306 (c) by making false statements in documents filed with the Immigration and Naturalization Service. Both claim that they were improperly denied a jury trial and the evidence was insufficient to support their convictions. 2 Hamdan is a citizen of Jordan, admitted to the United States as a nonimmigrant student. Bush is a citizen of Panama and a permanent resident alien. They were married on July 23, 1974. In August 1974 Hamdan applied for permanent resident status, alleging he resided with Bush in Foster City, California. At the same time, Bush filed a supporting document…

dissenting:

I respectfully dissent.

The problem before us is to distinguish “petty” from “serious” offenses. Courts have focused on two criteria in distinguishing petty from serious crimes. The first criterion is the intrinsic nature of the crime regardless of the authorized punishment. See Callan v. Wilson, 127 U.S. 540, 555-57 , 8 S.Ct. 1301 , 32 L.Ed. 223 (1888). It was thought at one time that the classification of an offense depended “primarily upon the nature of the offense.” District of Columbia v. Colts, 282 U.S. 63, 73 , 51 S.Ct. 52, 53 , 75 L.Ed. 177 (1930).

There is a recent trend, however, which emphasizes the relevance of the maximum punishment authorized by the statute violated. Muniz v. Hoffman, 422 U.S. 454 , 480 n. 6, 95 S.Ct. 2178 , 45 L.Ed.2d 319 (1975) (Douglas, J., dissenting); Codispoti v. Pennsylvania, 418 U.S. 506, 511-12 , 94 S.Ct. 2687 , 41 L.Ed.2d 912 (1974); Frank v. United States, 395 U.S. 147, 148 , 89 S.Ct. 1503 , 23 L.Ed.2d 162 (1969); Duncan v. Louisiana, 391 U.S. 145, 159 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968). This criterion provides a more objective and workable standard for determining when the right to jury trial at *281 taches. Baldwin…

Hamdan and Bush were convicted after a court trial of violating 8 U.S.C. § 1306 (c) by making false statements in documents filed with the Immigration and Naturalization Service. Both claim that they were improperly denied a jury trial and the evidence was insufficient to support their convictions.

Hamdan is a citizen of Jordan, admitted to the United States as a nonimmigrant student. Bush is a citizen of Panama and a permanent resident alien. They were married on July 23, 1974. In August 1974 Hamdan applied for permanent resident status, alleging he resided with Bush in Foster City, California. At the same time, Bush filed a supporting document stating she resided with Hamdan. Later investigation revealed Bush actually lived in an apartment in San Francisco.

A complaint was filed charging Hamdan and Bush with violating section 1306(c), which authorizes imposition of a fine of not more than $1,000, imprisonment for not more than six months, or both. They refused to consent to trial before a magistrate. 18 U.S.C. § 3401 (b). The district judge denied their motion for a jury trial, and after hearing the evidence found them guilty.

Hamdan and Bush contend the denial of a jury…