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Bado v. United States

Court of Appeals of Columbia District

July 16, 2015


Argued May 28, 2014

Page 51

Appeal from the Superior Court of the District of Columbia. (DVM-1930-11). (Hon. Jennifer M. Anderson, Motions Judge), (Hon. Stuart G. Nash, Trial Judge).

Paul V. Renaud III, Student Attorney, D.C. Law Students in Court, with whom Moses A. Cook and Alfred D. Carry were on the brief, for appellant.

Lauren R. Bates, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, and Michelle Parikh, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and THOMPSON, Associate Judges, and RUIZ, Senior Judge.


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Thompson, Associate Judge

This appeal requires us to decide whether a non-citizen facing a charge of misdemeanor sexual abuse of a child has a constitutional right to a jury trial because of the severe, " virtually inevitable," and " nearly . . . automatic" penalty of deportation that is triggered by a conviction for that offense, which constitutes an " aggravated felony" under the federal immigration laws. For the reasons that follow, we hold that the answer to that question is " yes."

I. Factual and Procedural Background

In March 2012, appellant Jean-Baptiste Bado was charged by amended information with three counts of misdemeanor sexual abuse of a child, in violation of D.C. Code § 22-3010.01 (2001). The government alleged that on dates within the statutory limitations period (as well as on earlier dates as to which the government presented evidence of uncharged " other crimes" ), appellant sexually abused his stepdaughter, J.D., by using his hand to touch her " vagina and/or vulva" (count 1), by using his hand to touch her breast (count 2), and by using his hand to touch her buttocks (count 3). In an oral motion on April 25, 2012, supplemented by a written motion filed on May 17, 2012, appellant, who identified himself as a political asylum applicant, demanded a jury trial.[1] He asserted that, together, the possible consequences of conviction of the charged offense -- the statutory maximum period of incarceration (180 days), the assessment payable to the Victims of Violent Crime Compensation Fund, the requirement to register for ten years as a sex offender, and deportation pursuant to the federal immigration laws -- are so severe that the offense must be recognized as a serious offense for which a jury trial must be afforded.

The motions judge, the Honorable Jennifer M. Anderson, rejected appellant's demand for a jury trial. She noted first that this court, in Foote v. United States, 670 A.2d 366 (D.C. 1996), and Thomas v. United States, 942 A.2d 1180 (D.C. 2008), rejected the contention that " collateral" consequences such as deportation and mandatory sex offender registration elevate a presumptively " petty" offense to a " serious" one for which a jury trial is constitutionally

Page 53

mandated.[2] Judge Anderson also reasoned that the Supreme Court's opinion in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), " has not changed the current status of law in the District of Columbia" with respect to a non-citizen's right to a jury trial.

The matter proceeded to a bench trial before the Honorable Stuart Nash. The government presented evidence, primarily through the testimony of J.D., that appellant sexually abused her on numerous occasions during the years preceding her sixteenth birthday. J.D. testified that the abuse began shortly after appellant moved in with her family in early 2007.[3]

On July 27, 2012, after a two-day bench trial, Judge Nash found appellant guilty of one count of misdemeanor sexual abuse of a child.[4] Specifically, Judge Nash found appellant guilty of count 1, finding that during the limitations period, there was contact between appellant's hand and J.D.'s vaginal area while J.D. was clothed (thus crediting J.D.'s testimony that on July 28, 2011, the day before her sixteenth birthday, appellant touched her in the area over her vagina on top of her jeans).[5] Judge Nash sentenced appellant to 180 days' incarceration, the statutory maximum period of imprisonment, see D.C. Code § 22-3010.01 (a), and ordered him to pay $50 to the Victims of Violent Crime Compensation Fund. The court subsequently amended appellant's sentence to include a notification that appellant must register as a sex offender pursuant to the Sex Offender Registration Act of 1999 (" SORA" ). See D.C. Code § 22-4002 (a) (2012 Repl.).[6]

On appeal from his conviction, appellant makes essentially the same argument

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he made in his motion demanding a jury trial: that although misdemeanor sexual abuse of a child is punishable by no more than 180 days' incarceration, he was entitled to a jury trial.[7] This is so, he argues, because of the inherent " serious" nature of the offense and the non-incarceration consequences that follow upon conviction, including required sex offender registration and immigration consequences. As to the immigration consequences, appellant contends that Padilla requires that this court revisit its reasoning in Foote.[8]

II. Applicable Law

The Sixth Amendment to the United States Constitution provides in pertinent part that " [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ." U.S. Const. amend. VI. " It has long been settled[,]" however, that " there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision." Blanton v. City of N. Las Vegas, 489 U.S. 538, 541, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989) (quoting Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (distinguishing between " serious offenses" and " petty crimes" and holding that only the former trigger a right to a jury trial)) (internal quotation marks omitted).

Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), established that " no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized." See also id. at 69-70 (declining to " draw the line between 'petty' and 'serious' to coincide with the line between misdemeanor and felony" and recognizing that " some misdemeanors are also 'serious' offenses" ). In Blanton and United States v. Nachtigal, 507 U.S. 1, 113 S.Ct. 1072, 122 L.Ed.2d 374 (1993) (per curiam), the Supreme Court further addressed how courts are to draw the line between " petty crimes or offenses," as to which a jury trial is not required, and more serious crimes, for which a defendant is entitled to trial by jury. Blanton, 489 U.S. at 541. The Court instructed that offenses for which the maximum period of incarceration

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is six months or less are presumptively " petty." Id. at 543; Nachtigal, 507 U.S. at 3-4. This is a presumption that a defendant can overcome " only by showing that the additional penalties, viewed together with the maximum prison term, are so severe that the legislature clearly determined that the offense is a 'serious' one." Nachtigal, 507 U.S. at 3-4 (citing Blanton, 489 U.S. at 543 (" This standard, albeit somewhat imprecise, should ensure the availability of a jury trial in the rare situation where a legislature packs an offense it deems 'serious' with onerous penalties that nonetheless 'do not puncture the 6-month incarceration line.'" )).[9]

D.C. Code § 16-705 provides in pertinent part that:

In any case where the defendant is not under the Constitution of the United States entitled to a trial by jury, the trial shall be by a single judge without a jury, except that if -- (1) (A) The defendant is charged with an offense which is punishable by a fine or penalty of more than $1,000 or by imprisonment for more than 180 days (or for more than six months in the case of the offense of contempt of court); . . . and (2) The defendant demands a trial by jury, the trial shall be by jury, unless the defendant in open court expressly waives trial by jury and requests trial by the court, and the court and the prosecuting officer consent thereto.

D.C. Code § 16-705 (b)(1)-(2) (2012 Repl.).[10] As part of the Omnibus Public Safety Act of 2006, the Council of the District of Columbia (the " Council" ) created a " new misdemeanor child sexual abuse provision." D.C. Council, Report on Bill 16-247, at 11 (Apr. 28, 2006). In legislating the provision entitled " [m]isdemeanor sexual abuse of a child or minor," the Council provided that " sexually suggestive conduct with [a] child or minor," an offense that comprises " touching a child or minor inside or outside his or her clothing close to the genitalia, anus, breast, or buttocks[,]" is punishable by " imprison[ment] for not more than 180 days," a fine, or both. D.C. Code § 22-3010.01 (a), (b)(2).[11]

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In Padilla v. Kentucky, the Supreme Court described the dramatic changes that have occurred in the federal immigration laws over the last 90 years. 559 U.S. at 360-64. The Court focused in particular on the changes effected in 1996 through the Anti-Terrorism and Effective Death Penalty Act (AEDPA)[12] and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).[13] " In 1996," the Court emphasized, " Congress . . . eliminated the Attorney General's authority to grant discretionary relief from deportation[.]" Padilla, 559 U.S. at 363. Thus, the Court explained, " if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal[.]" Id. at 363-64.

III. Analysis


We reject with only a brief discussion appellant's first argument, i.e., that the inherent nature of the crime of which he was convicted and the " inescapable societal disapproval" and " lasting social stigmas" attendant to conviction of sexual abuse of a child[14] require that it be recognized as a " serious" offense, for which a jury trial is required, even though the maximum period of incarceration is 180 days. The Supreme Court instructed in Blanton that judicial attempts to distinguish between petty and serious offenses are to focus on " objective indications of the seriousness with which society regards the offense," the " most relevant" of which is " the severity of the maximum authorized penalty" of incarceration. Blanton, 489 U.S. at 541 (internal citations and quotation marks omitted); see also id. at 542 (" Primary emphasis . . . must be placed on the maximum authorized period of incarceration[, because while p]enalties such as probation or a fine may engender a significant infringement of personal freedom, . . . they cannot approximate in severity the loss of liberty that a prison term entails." (internal quotation marks and citation omitted)). This court recognized in Burgess, 681 A.2d at 1095, that " [w]hether a crime is 'serious' for Sixth Amendment purposes . . . is a question that can be answered only by the sort of analysis ...

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