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File under: adequacy of charging instrument

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  • Frog Farmer
    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
    Message 1 of 1 , Feb 22, 2009
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      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
      show.]

      UNITED STATES v. ROJO, 727 F.2d 1415 (9th Cir. 1983)

      UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. RAMON J. ROJO,

      DEFENDANT-APPELLANT.

      No. 82-5812.

      United States Court of Appeals, Ninth Circuit.

      Argued and Submitted July 13, 1983.

      Decided November 10, 1983.

      As Modified November 23, 1983.

      Page 1416

      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:

      [1] 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.

      [2] FACTS

      [3] 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.

      [4] 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
      probation period.

      [5] 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.

      [6] ANALYSIS

      [7] 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.

      [8] I. The Charging Document

      [9] 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.

      [10] 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.

      [11] 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),
      which provides:

      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.

      [12] 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
      be applied.[fn2]

      [13] 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.
      Page 1418

      [14] Id. (citations omitted) (emphasis in original).

      [15] 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.

      [16] 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).

      [17] 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.

      [18] II. Adequacy of the Citation

      [19] 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).

      [20] 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).

      [21] 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.

      [22] 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
      thereof; or

      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
      citation.
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