United States v. Wesley G. Craner

652 F.2d 23 UNITED STATES of America, Plaintiff-Appellee, v. Wesley G. CRANER, Defendant-Appellant. No. 80-1344. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 10, 1980. Decided July 27, 1981. Martha J. Holden, Asst. Federal Public Defender, Sacramento, Cal., for defendant-appellant. William Shubb, U.S. Atty., Sacramento, Cal., argued, for plaintiff-appellee; Fern Segal, Asst. U.S. Atty., Sacramento, Cal., on brief. Appeal from the United States District Court for the Eastern District of California (Sacramento). Before BROWNING, Chief Judge, PECK * , and SNEED, Circuit Judges. PECK, Circuit Judge. 1 Appellant Craner was convicted at a bench trial of driving under the influence of alcohol in Yosemite National Park, a violation of regulations promulgated by the Secretary of the Interior. 1 On appeal, Craner contends that the district court erred in denying his motion for a jury trial. 2 Although Craner was sentenced only to probation and to attendance at traffic school, the offense of which he was charged carries a maximum penalty of six months' imprisonment or a $500 fine, or both, plus payment of costs. 36 C.F.R. § 1.3 (1980). Craner's appeal raises…

concurring in the result only:

I concur in the result reached by the majority.

I agree that neither Baldwin v. New York, 399 U.S. 66 , 90 S.Ct. 1886 , 26 L.Ed.2d 437 (1970), nor Codispoti v. Pennsylvania, 418 U.S. 506 , 94 S.Ct. 2687 , 41 L.Ed.2d 912 (1974), hold that all offenses with respect to which the authorized prison term is six months or less and the fine $500 or less are “petty.” Their holdings point the other way, viz., offenses carrying terms in excess of six months and fines of more than $500 must be tried before a jury. The upshot is that the latter type of offense is never “petty,” while the former usually is. It is also true that this court in United States v. Sanchez-Meza, 547 F.2d 461 (9th Cir. 1976), recognized that factors other than the maximum sentence possible are relevant in determining whether an offense is “petty.”

I also agree with the majority that under the circumstances of this case the maximum penalty imposed by the Secretary of Interi- or does not, as the majority observes, represent the considered legislative judgment of the gravity of the offense. Nor does it, in my opinion, represent a considered executive judgment of the gravity. The Secretary…

Appellant Craner was convicted at a bench trial of driving under the influence of alcohol in Yosemite National Park, a violation of regulations promulgated by the Secretary of the Interior. 1 On appeal, Craner contends that the district court erred in denying his motion for a jury trial.

Although Craner was sentenced only to probation and to attendance at traffic school, the offense of which he was charged carries a maximum penalty of six months’ imprisonment or a $500 fine, or both, plus payment of costs. 36 C.F.R. § 1.3 (1980). Craner’s appeal raises the issue whether this offense is a “serious” one for which the Federal Constitution 2 guarantees a trial by jury.

The Supreme Court has accorded constitutional stature to the common-law rule that “petty” offenses may be tried without the intervention of a jury. See, e. g., Bloom v. Illinois, 391 U.S. 194, 210 , 88 S.Ct. 1477, 1486 , 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 160 , 88 S.Ct. 1444, 1453 , 20 L.Ed.2d 491 ; Callan v. Wilson, 127 U.S. 540, 557 , 8 S.Ct. 1301, 1307 , 32 L.Ed. 223 (1888). Traditionally, the Court has looked to the nature of an offense in ranking it “serious” or “petty.” See District of…