File under: adequacy of charging instrument
- Somebody wrote and asked:
Would this work for traffic tickets?
[My answer: the time to deal with this is at arraignment, by objecting
timely, and demanding all arraignment rights, among which is a valid
complaint. To wait until appeal just wastes your time and everyone
else's. If you make good enough record before trial, you'll seldom have
to go as far as appeal because trial may not ever happen. It depends
upon how much fraud, abuse, and corruption you can make the record
UNITED STATES v. ROJO, 727 F.2d 1415 (9th Cir. 1983)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. RAMON J. ROJO,
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 13, 1983.
Decided November 10, 1983.
As Modified November 23, 1983.
Scott M. Cantor, Las Vegas, Nev., for defendant-appellant.
Lamond R. Mills, Las Vegas, Nev., for plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada.
Before TRASK, TANG, and REINHARDT, Circuit Judges.
TRASK, Circuit Judge:
 Ramon J. Rojo appeals from an order of the district court affirming
a judgment of conviction entered by Magistrate Philip M. Pro after
finding appellant guilty of violating 18 U.S.C. � 641.
 On February 27, 1982, a citation was issued to appellant charging
him with switching the price tag on a key case at the Main Post Exchange
of Nellis Air Force Base in violation of
18 U.S.C. � 641 (1976).[fn1] Thereafter, on March 9, 1982, appellant
entered a plea of not guilty to the citation and on May 21, 1982, the
case came up for trial before Magistrate Philip M. Pro. The magistrate
denied both appellant's pretrial motion to dismiss based on the
inadequacy of the citation and his motion at trial to dismiss the
citation for failure to state a crime.
 After a bench trial, the magistrate found appellant guilty of the
section 641 charge and sentenced him to a six month period of
unsupervised probation. Moreover, the special condition was imposed that
appellant's Air Force privileges were not to be reinstated during the
 Rojo appealed the magistrate's decision to the United States
District Court for the District of Nevada. The district court affirmed
the judgment of conviction and the appeal to this court followed.
 Rojo maintains that his judgment of conviction must be reversed, on
the grounds that: (1) the government could not properly prosecute him by
way of a citation for a violation of
18 U.S.C. � 641; (2) the citation failed to adequately advise him of the
offense charged; and (3) the magistrate omitted to inform him of his
right to a jury trial.
 I. The Charging Document
 The court will first address appellant's contention that a
prosecution pursuant to section 641 cannot proceed by way of citation.
On the one hand, the trial of misdemeanors, other than petty offenses,
may proceed on an indictment, information Page 1417 or complaint. Rules
of Procedure of the Trial of Misdemeanors before United States
Magistrates, Rule 2(a) ("Magistrates Rules"). On the other hand, the
trial of a petty offense may proceed on a citation or violation notice.
Id. Resolution of Rojo's claim will, therefore, turn on whether a
violation of 18 U.S.C. � 641 is a petty offense.
 A petty offense is defined as "[a]ny misdemeanor, the penalty for
which does not exceed imprisonment for a period of six months or a fine
of not more than $500, or both . . . ."
18 U.S.C. � 1(3). Under this definition, a violation of 18 U.S.C. � 641
is not a petty offense, as it permits the imposition of a $1000 fine and
a one-year jail sentence, if the value of the property in question does
not exceed $100. It is apparent, therefore, that prosecution by way of
citation is impressible under section 641.
 The government argues, however, that the definition of a petty
offense set out at 18 U.S.C. � 1(3) has been modified by the amended
Magistrates Rules. Specifically, the government points to Rule 1(c),
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.
 The government is apparently taking the position that under Rule
1(c), if a magistrate determines that a prison sentence will not be
imposed upon conviction, any misdemeanor becomes "petty."
The court is hard-pressed to understand the government's reasoning. Rule
1(c) in no way indicates that it modifies
18 U.S.C. � 1(3). It is evident from the plain language of the
Magistrates Rules that Rule 1(c) simply defines those petty offenses to
which, under Rule 1(b), the Federal Rules of Criminal Procedure need not
 Equally unavailing is the government's reliance on the language in
the notes of the advisory committee, which states that the definition of
petty offenses found in 18 U.S.C. � 1(3) "will usually but not
inevitably apply here." Magistrates Rules, Rule
1(c) advisory committee note (emphasis in original). This interpretation
takes the committee's language out of context. The committee stated:
Because the distinction between petty offenses for which no sentence of
imprisonment will be imposed and other misdemeanors is critical here and
in following rules, it must be emphasized that the definition of a
"petty offense" in 18 U.S.C. � 1(3) [section 1(3) of this title], "any
misdemeanor, the penalty for which does not exceed imprisonment for a
period of six months or a fine of not more than $500 or both," will
usually but not inevitably apply here. The Supreme Court has recognized
the historical difference in treatment accorded petty offenses and has
excluded them from the requirement that the trial of "crimes"
be by jury. Nevertheless, certain offenses have traditionally been
considered "crimes" at common law, and are still such even though the
maximum penalty currently prescribed by law is not more than six months
imprisonment or a fine of $500. That is, the penalty prescribed is of
major relevance in determining whether an offense is petty in the
constitutional sense, but is not the sole criterion; the historical
antecedents of the offense and the ethical condemnation with which the
community views the offense are also important.
 Id. (citations omitted) (emphasis in original).
 The committee notes make clear that some offenses with a penalty of
not more than six months imprisonment or a fine of no more than $500,
may not be considered petty. The notes do not imply that offenses with a
greater prescribed penalty can be considered petty if the magistrate
determines that he will not impose imprisonment. We are firmly
convinced, therefore, that a violation of 18 U.S.C. � 641 is a
misdemeanor, not a petty offense and that the use of a citation in this
case was legally defective.
 Even assuming, arguendo, that we were to accept the government's
contention that a section 641 violation can be considered a petty
offense in some instances, this would not be such an instance. Under the
Magistrates Rules, "petty offenses"
are those in "which the magistrate determines" that no imprisonment will
be imposed. Rule 1(c). No such determination was made by the magistrate
in the case before us prior to trial.
The government argues, nonetheless, that by proceeding by citation they
were admitting the offense was petty and that no imprisonment could be
imposed. We must reject this argument out of hand. Rule 1(c) places the
responsibility of making the determination whether imprisonment will be
imposed on the magistrate, not the prosecuting attorney. We cannot
permit the government to usurp the magistrate's rule, by charging a
defendant by way of citation in non-petty misdemeanor cases.
Moreover, it is not for the prosecuting authorities to determine whether
a particular defendant will receive a sentence of imprisonment. See,
e.g., Smith v. United States, 670 F.2d 145,
147 (11th Cir. 1982); United States v. Henderson, 565 F.2d 1119,
1120-21 (9th Cir. 1977), cert. denied, 435 U.S. 955, 98 S.Ct.
1586, 55 L.Ed.2d 806 (1978).
 Finally, the government asserts that there has been no prejudice to
defendant. Rojo's conviction belies this contention.
Although the punishment falls within the parameters of a petty offense,
the record shows a conviction for a more serious offense.
 II. Adequacy of the Citation
 Next, we address Rojo's contention that the citation failed to
adequately advise him of the pending charges. The sixth amendment of the
United States Constitution provides in relevant part:
"[i]n all criminal prosecutions, the accused shall enjoy the right . . .
to be informed of the nature and cause of the accusation." Charging
documents are tested by whether they "`sufficiently apprise the
defendant of what he must be prepared to meet.'" Russell v. United
States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962)
(citations omitted). The requirement that a charging document must
furnish a defendant with a sufficient description of the charge against
him has long been recognized to serve a dual function, namely (1) to
enable the defendant to adequately prepare his defense and (2) to enable
him to plead double jeopardy against a second prosecution.
United States v. Buckley, 689 F.2d 893, 896 n. 3 (9th Cir. 1982), cert.
denied, ___ U.S. ___, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983).
 The citation in the case at bar fails to provide sufficient notice
of the elements and facts of the pending charges. The government does
not dispute that the copy of the citation issued to Rojo contains only
the words "Title 18, Section 641." There is not even a cursory reference
to any act allegedly committed or to any other facts, such as date, time
or location. See, e.g., United States v. Christopher, 700 F.2d 1253,
1257 (9th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 2436, 77 L.Ed.2d
1321 (1983); United States v. Groff, 643 F.2d 396, 402 (6th Cir.), cert.
denied, 454 U.S. 828, 102 S.Ct. 121, 70 L.Ed.2d 103 (1981). Furthermore,
it is noteworthy that 18 U.S.C. � 641 sets out several possible
violations. The citation did not inform Rojo which of these violations
he allegedly committed and he should not have to speculate in this
regard. United States v. Rohrer,
708 F.2d 429, 435 n. 7 (9th Cir. 1983).
 In view of the above factors, the court rejects the government's
argument that Rojo knew the nature and cause of the Page 1419
accusation, because he could look up 18 U.S.C. � 641.[fn3] We hold,
therefore, that the citation was constitutionally defective.
 For all of the foregoing reasons, appellant's judgment of
conviction is VACATED.
[fn1] 18 U.S.C. � 641 states, as follows:
Whoever embezzles, steals, purloins, or knowingly converts to his use or
the use of another, or without authority, sells, conveys or disposes of
any record, voucher, money, or thing of value of the United States or of
any department or agency thereof, or any property made or being made
under contract for the United States of any department or agency
Whoever receives, conceals, or retains the same with intent to convert
it to his use or gain, knowing it to have been embezzled, stolen,
purloined or converted �
Shall be fined not more than $10,000 or imprisoned not more than ten
years, or both; but if the value of such property does not exceed the
sum of $100, he shall be fined not more than $1,000 or imprisoned not
more than one year, or both.
The word "value" means face, par, or market value, or cost price, either
wholesale or retail, whichever is greater.
[fn2] Magistrates Rules, Rule 1(b) provides:
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.
Proceedings concerning petty offenses for which no sentence of
imprisonment will be imposed are not governed by the Federal Rules of
Criminal Procedure, except as specifically provided therein or by these
rules. However, to the extent they are not inconsistent with these
rules, a magistrate may follow such provisions of the Federal Rules of
Criminal Procedure as he deems appropriate.
[fn3] We also decline to adopt the government's position, because it
presumes Rojo's knowledge of the facts charged and thereby also presumes
his guilt. In any case, particular scrutiny of the charging document is
required, because appellant should not have been charged by way of