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Bado v. United States

Court of Appeals of The District of Columbia

June 21, 2018

Jean-Baptiste Bado, Appellant,
v.
United States, Appellee.

          Argued En Banc June 14, 2016

          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)

          Alfred D. Carry, with whom Moses A. Cook, D.C. Law Students in Court, was on the brief, for appellant.

          Lauren R. Bates, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, and Michelle A. Parikh, Assistant United States Attorneys, were on the brief, for appellee.

          Alice Wang, with whom Samia Fam, Public Defender Service, and Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, were on the brief, as amici curiae, in support of appellant.

          Kathy Doan, Heidi Altman, Claudia R. Cubas, and Rachel V. Jordan, Capital Area Immigrants' Rights (CAIR) Coalition, were on the brief, as amicus curiae, in support of appellant.

          Before Blackburne-Rigsby, Chief Judge [*] Glickman, Fisher, Thompson, Beckwith, and Easterly, Associate Judges, and Washington, [**] and Ruiz, Senior Judges.

          OPINION

          Ruiz, Senior Judge

         Jean-Baptiste Bado appeals his conviction for misdemeanor sexual abuse of a minor, after a bench trial, on the ground that he was denied the right to a jury trial guaranteed by the Sixth Amendment. The court, sitting en banc, is asked to decide whether the Sixth Amendment guarantees a right to a jury trial to an accused who faces the penalty of removal/deportation[1] as a result of a criminal conviction for an offense that is punishable by incarceration for up to 180 days. By itself, that period of incarceration does not puncture the six-month line past which an offense is deemed "serious" and jury-demandable. We hold that the penalty of deportation, when viewed together with a maximum period of incarceration that does not exceed six months, overcomes the presumption that the offense is petty and triggers the Sixth Amendment right to a trial by jury. The conviction is reversed and the case remanded for a jury trial.

         I.

         Appellant Jean-Baptiste Bado came to the United States on February 8, 2005, from Burkina Faso, where he was a pastor, fleeing at the time from "systematic[] prosecut[ion] and torture[]for his political and religious beliefs." Once in this country, he filed an application for asylum. His asylum proceeding continued for several years. It was halted in 2011, however, when he was charged by information with three counts of misdemeanor sexual abuse of a minor[2]because, if convicted, under U.S. immigration law he would be barred from receiving political asylum[3] and removed from the United States.[4] Appellant pleaded not guilty and demanded a jury trial, which was denied. At the bench trial, appellant took the stand and contradicted the charges, calling into question the complainant's credibility. He was acquitted of two of the charges but convicted of one count. He was sentenced to 180 days and ordered to pay $50 to the Crime Victims Compensation Program Fund and register as a sex offender for ten years. The United States commenced deportation proceedings on the basis of the conviction.

         On appeal, a divided panel of the court reversed the conviction after concluding that appellant's right to a jury trial had been violated. Bado v. United States, 120 A.3d 50, 52 (D.C. 2015). On granting the government's petition for rehearing en banc, the division's opinions were vacated. Bado v. United States, 125 A.3d 1119 (D.C. 2015). After a further round of briefing by the parties and amici curiae, and oral argument, we now hold that appellant has a constitutional right to a jury trial. Therefore, we reverse his conviction and remand the case to permit appellant to have a trial free from structural error[5] and to receive the "basic protection" of a trial before a jury. Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993).[6]

         II.

         The Sixth Amendment guarantees a bundle of trial rights to the accused in "all criminal prosecutions." U.S. Const. amend. VI. The first of these is "the right to a speedy and public trial, by an impartial jury . . . ." Id.[7] The Supreme Court has interpreted the scope of the jury trial right, in the light of the common law, as applying to criminal prosecutions for "serious offenses." Duncan v. Louisiana, 391 U.S. 145, 157-58 (1968). Criminal prosecutions for offenses that are not serious, but deemed to be "petty, " may be tried by a judge without violating the Sixth Amendment.

         The Supreme Court has set the parameters of what constitutes a "serious" offense under the Sixth Amendment. It is settled that any offense "where imprisonment for more than six months is authorized" cannot be considered "petty" for purposes of the right to trial by jury. Baldwin v. New York, 399 U.S. 66, 67, 69-70 (1970) (noting that the distinction between "felonies" and "misdemeanors" is not the constitutional dividing line and that some misdemeanors, such as "jostling, "[8] are deemed serious offenses). In Blanton v. City of N. Las Vegas, 489 U.S. 538, 541-42 (1989), the Court set out the analytical framework to determine whether a particular offense punishable by incarceration for six months or less is to be deemed "serious, " triggering the constitutional right to a jury trial, or "petty, " leaving the question of a jury trial to resolution under other applicable law.[9] Noting that the maximum exposure to incarceration is usually the clearest indicator of the seriousness of an offense, the Court, following Baldwin's lead, stated that offenses with a maximum period of incarceration of six months are "presum[ptively] . . . petty." Id. at 543. The Court, however, declined to hold that all such offenses "automatically qualif[y] as [] 'petty' offense[s], " and established that the presumption can be overcome "if [the accused] can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one." Id.

         In Blanton the Court applied that test to a conviction for driving under the influence by assessing the statutorily authorized penalties that could be imposed upon conviction for DUI: incarceration from a minimum of two days to a maximum of six months, or, alternatively, 48 hours of community service dressed in clothing identifying the convicted defendant as a DUI offender; a maximum penalty of $1, 000; a 90-day suspension of a driver's license; and mandatory attendance at an alcohol abuse education course at the offender's expense. 489 U.S. at 539, 544-45. The Court made clear that, in evaluating the seriousness of the offense, it considered the "maximum authorized prison sentence, " id. at 544 (emphasis in original), [10] and that it considered only those potential penalties that are actually faced by the particular defendant, id. at 545, & n.12.[11] The Court reasoned that, because the maximum period of incarceration did not exceed six months, the offense was presumptively petty. Id. at 544. It then "[c]onsider[ed] the additional statutory penalties." Id. Of the distinctive garb required if the person were alternatively sentenced to a short period of community service, the Court stated that, even if it were "the source of some embarrassment, " it would be "less embarrassing and less onerous than six months in jail." Id.[12] The Court considered the license suspension and concluded it was not "that significant" as a Sixth Amendment matter, in part because the record was unclear as to whether the suspension would be concurrent with the six-month incarceration, in which case it would be "irrelevant, " and because a restricted license could be obtained after forty-five days. Id. & n.9.[13] The Court dismissed the mandatory alcohol abuse education course as a "de minimis" requirement. Id. at n.9. After taking into account all of the possible maximum statutory penalties that could be applied to the defendant, the Court concluded that "[v]iewed together, the statutory penalties are not so severe that DUI must be deemed a 'serious' offense for purposes of the Sixth Amendment." Id. at 545. The Court applied a Blanton analysis one other time, in United States v. Nachtigal, another case that involved operating a motor vehicle while intoxicated. 507 U.S. 1, 2 (1993). The possibility of a five-year probation and $5, 000 fine did not convert the presumptively petty offense to a serious one for jury trial purposes, the Court held, because they did not approximate or entail as great a loss of liberty as the possibility of imprisonment for more than six months. Id. at 5.

         III.

         We apply a Blanton analysis in this case. In light of the 180-day maximum exposure to incarceration for misdemeanor sexual abuse of a minor, we begin with the presumption that the offense is "petty" for Sixth Amendment purposes. The question before us is whether the possibility of deportation refutes that presumption. We note the obvious: there is no comparison between the penalty of deportation and the statutory penalties considered in Blanton (temporary license suspension, embarrassing clothing to be worn during two days of community service, and alcohol abuse education course) that were deemed not significant enough to render the DUI offense serious under the Sixth Amendment. Like incarceration, deportation separates a person from established ties to family, work, study, and community. In this forced physical separation, it is similar "in severity [to] the loss of liberty that a prison term entails." Blanton, 489 U.S. at 542 (distinguishing probation and fines which, although they "may engender 'a significant infringement of personal freedom, ' . . . cannot approximate in severity the loss of liberty that a prison term entails") (internal citation omitted) (quoting Frank v. United States, 395 U.S. 147, 151 (1969)). Baldwin held that the possibility of a sentence in excess of six months automatically renders an offense serious under the Sixth Amendment, entitling the accused to a jury trial. Removal, however, can be more severe than the possibility of a six-month sentence of incarceration. Once the actual sentence is served (which could be for a term less than the six-month maximum, or even only probation), a U.S. citizen can return home to family and community and take steps to resume and, possibly, redirect his life. But when a person faces deportation, serving the sentence is only the first step following conviction; once the sentence is completed, the person faces the burdens and anxiety that attend detention pending removal proceedings. Upon removal, the physical separation from family and community lasts at least ten years and, for some, including Mr. Bado, exclusion from the country becomes permanent.[14] This disruption causes harm and suffering to those who are forced to leave and those who remain. Wrenching decisions might have to be made within the family, which could be left without an important source of emotional and financial support. Those families often include children and other family members who are United States citizens and who may be forced to leave this country to preserve familial bonds with a parent or other relative no longer able to remain in the United States, or to continue to receive their financial support.[15] For some, deportation may expose them to harsh conditions in their country of origin including extreme poverty, violence and oppression and persecution based on religious and political beliefs. As the Court has recognized, removal is considered by many immigrants to be worse than incarceration, such that "preserving the [] right to remain in the United States may be more important [] than any potential jail sentence." Lee v. United States, __U.S.__ 137 S.Ct. 1958, 1968 (2017) (quoting Padilla, 599 U.S. at 368).

         The Supreme Court has "long recognized that deportation is a particularly severe 'penalty, '" equating it to "banishment." Padilla, 559 U.S. at 365, 373 (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)); see, e.g., Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) ("[D]eportation is a drastic measure and at times the equivalent of banishment or exile."); Fong Yue Ting, 149 U.S. at 740 (Brewer, J., dissenting) ("Every[]one knows that to be forcibly taken away from home, and family, and friends, and business, and property, and sent across the ocean to a distant land, is punishment; and that oftentimes most severe and cruel"). Removal that results from conviction erects a bar to entry into the United States, [16] with all the grave consequences that preclusion entails: loss of our country's constitutional protections, the ability to engage with its social institutions, and access to educational and economic opportunities. These are the cherished values that have beckoned to people in other lands since our country's founding and continue to provide hope for those seeking a better life and refuge for those escaping violence and persecution. Their loss is so great as to be unquantifiable. The loss of liberty, akin to incarceration, that results from removal as well as the Court's repeated statements about its severity, lead us to conclude, under a Blanton analysis, that deportation is so "onerous" a penalty for conviction that it presents the "rare situation" that should ensure the availability of a jury trial in a criminal proceeding even though the penalty of incarceration does not "puncture the six-month incarceration line." Blanton, 489 U.S. at 543.

         IV.

         The government agrees that, under Blanton, there is a two-step analysis: (1) identification of the penalties for conviction of an offense, and (2) an evaluation of whether the penalties, viewed together, are sufficiently severe to warrant a jury trial by comparison to the possibility of imprisonment for more than six months, which the Court has established (when considering only incarceration) as the constitutional dividing line between petty and serious offenses. The government does not dispute that deportation is a severe penalty. The government's arguments boil down to one contention, that deportation is not the type of penalty that Blanton contemplated should be taken into account in determining whether an offense is deemed serious under the Sixth Amendment. Specifically, the government contends that: (1) removal is not a penalty for a criminal offense; (2) removal should not be considered because it is imposed by Congress, not the Council of the District of Columbia, which created the offense; (3) longstanding precedent establishes that deportation is not "punishment"; and (4) the courts of the District of Columbia are not competent to determine the deportation consequence of criminal conviction. As we now discuss, we are not persuaded by the government's arguments to diverge from a straightforward application of a Blanton analysis that includes the penalty of deportation.

         A. Deportation is a Penalty for a Criminal Conviction

         As the Court has recognized, "[o]ur law has enmeshed criminal convictions and the penalty of deportation for nearly a century." Padilla, 559 U.S. at 365-66. In this case, there is no dispute that the offense of misdemeanor sexual abuse of a minor exposes appellant to removal. Appellant had been in proceedings seeking asylum that were terminated pending his criminal trial because, if convicted, he would be ineligible for asylum and deported.[17] The government sought to deport him upon his conviction. The government argues, however, that removal, even if it is triggered by a criminal conviction, is a "civil" sanction that should not be considered in a Blanton analysis. We disagree. As Blanton emphasized, whether the Sixth Amendment guarantees a jury trial is determined by reference to the possible statutory "penalties" that "attach[] to" conviction of the offense:

In using the word "penalty, " we do not refer solely to the maximum prison term authorized for a particular offense. A legislature's view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense. We thus examine "whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial."

489 U.S. at 542 (first emphasis added and internal citation omitted) (quoting Duncan, 391 U.S. at 161). The Court did not parse whether "the other penalties" were "penal" or "civil" in nature, and took care to consider the relative burdens imposed by each of several penalties that were "civil" in nature: temporary license suspension, 48 hours of community service, a fine, and required attendance at an alcohol abuse education course. Id. at 543-44. We see no foothold in Blanton for the distinction the government urges in this appeal.

         Reprising the "civil" versus "penal" point, the government argues that removal resulting from conviction is merely the prescribed remedy in a regulatory-type proceeding that enforces provisions in the immigration laws that define who is permitted to stay in the country.[18] No one doubts that the government has the power to deport persons, so long as it is exercised pursuant to statutory authority and consistent with the Constitution. That is not the issue here. In this case, we are concerned with the constitutional rights guaranteed to the accused under the Sixth Amendment in a criminal prosecution that could result in deportation. The government's argument that deportation, as a civil penalty, is not relevant to our inquiry is refuted by Blanton, where the Court considered the possible penalty of license suspension following conviction for DUI relevant in deciding whether the Sixth Amendment guarantees that apply to criminal prosecutions required a jury trial. A license can be suspended, even in the absence of conviction, for purely regulatory reasons such as failure to renew or driving without prescribed vision correction, just as a person may be subject to removal for violating the terms of admission absent a criminal conviction. Yet, in Blanton, the Court took into account the possibility of a license suspension as part of its Sixth Amendment analysis because the statute provided that suspension of licensing privileges was a penalty for a DUI conviction. Similarly here, a statutory provision imposes deportation as a penalty for conviction.

         Moreover, the argument that characterizes deportation as a "non-criminal" sanction is at odds with (and relies on cases that precede) current law and practice under the 1996 amendments to the Immigration and Naturalization Act ("INA")[19]which provide that removal proceedings are triggered by conviction of a number of state and federal offenses. Cognizant of these changes in the law, the Court has soundly rejected the notion that removal is merely a collateral consequence of criminal conviction, distinct from a criminal penalty, and has instead recognized that "as a matter of federal law, deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants." Padilla, 559 U.S. at 364. The "drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes." Id. at 360 (internal citation and quotation omitted). To characterize deportation in a case like this as merely a civil remedy separate from the penalty for conviction is not only contrary to Blanton's analysis; it also flies in the face of the Court's repeated statements in recent opinions that the penalty of removal plays a central role in criminal proceedings involving noncitizens. See Sessions v. Dimaya, 584 U.S.__, 138 S.Ct. 1204, 1213 (2018) ("[A]s federal immigration law increasingly hinged deportation orders on prior convictions, removal proceedings became ever more 'intimately related to the criminal process.'" (quoting Chaidez v. United States, 568 U.S. 342, 352 (2013) (in turn quoting Padilla, 559 U.S. at 365)). The civil/criminal distinction the Court said in Padilla is "ill suited" to evaluating a Sixth Amendment claim of ineffective assistance of counsel, id. at 366, is equally ill-suited to evaluating a claim to a jury trial, which is another in the group of rights guaranteed by the Sixth Amendment to the accused in a criminal prosecution.[20] Cf. Dimaya, 584 U.S. at, 138 S.Ct. at 1212-13 (noting government's civil/criminal distinction and rejecting the argument that because deportation is a civil sanction, a less searching standard should apply in a due process evaluation of a void-for-vagueness challenge under the Fifth Amendment).

         Finally, the argument that deportation is simply a civil measure also overlooks that harsher substantive and procedural requirements apply when deportation is triggered by a criminal conviction than in "regulatory" deportations, such as when a person is out of status (e.g., a person who is working without authorization or enters on a student visa and is no longer in school). Those who are removed as a result of a criminal conviction are ineligible for reentry for a longer period or permanently barred, [21] they are more likely to be detained pending removal proceedings, and, once a removal order has been entered, they are also streamlined through expedited removal proceedings, subjected to additional periods of detention, and extremely limited in their eligibility for relief from deportation.[22] These harsher provisions are not generally applicable, nor are they triggered by any circumstance other than the conviction of a crime (or admission of criminal behavior) and, thus, distinguish removal upon conviction from regulatory removals. As the Court has observed, once a noncitizen has been convicted of a removable offense, detention and removal are "practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General." Padilla, 559 U.S. at 363-64. Exercise of these "limited remnants" of executive discretion is rare as the government's enforcement policies have prioritized the removal of persons who have been convicted of crimes, ensuring that they are much more likely to be deported than others who could be removed as part of the regulatory process.[23]

         The government argues that removal should not be considered a penalty in a Blanton analysis because (1) the sentencing court does not have authority to order deportation upon conviction for a deportable offense[24] and (2) there would be an "anomaly" if a noncitizen would be entitled to a jury trial but a citizen would not. Neither of these is a factor whose relevance can be gleaned from Blanton, which focused on the possible penalties faced by the accused claiming the right to demand a jury trial, without regard to the mechanics by which the penalty is imposed. For example, the Court's consideration of the license suspension for the DUI conviction in Blanton was not dependent on whether it was imposed by the sentencing court. 489 U.S. at 539 (citing Nev. Rev. Stat. § 483.460 (1)(c)) (noting that suspension occurred "automatically"). Moreover, by expressly declining to consider other enhanced penalties that were not faced by the accused individual, id. at 545 n.12, Blanton made clear that what is relevant to the Sixth Amendment analysis are the potential penalties to which the particular defendant is exposed upon conviction. [25] In an analogous circumstance, we have rejected a claim that an enhanced penalty for recidivism triggers a jury trial right where the defendant was not "personally" facing the penalty. See Brown v. United States, 675 A.2d 953, 954 (D.C. 1996). Thus, because citizens can never be deported, it is hardly anomalous that Blanton 's penalty-oriented Sixth Amendment analysis could render a different result for citizens than for noncitizens who face the additional, and concededly serious, penalty of deportation.[26] Similarly, it would not be anomalous if one citizen who faces a more severe penalty such as a greater period of incarceration for a repeat offense is entitled to a jury trial whereas another citizen who faces lesser penalties is not.[27] The government offers no compelling reason why we should engraft additional requirements to the factors set out by the Court that are not relevant to Blanton's focus on the potential penalties that are faced by the accused individual. If, viewed together with the maximum period of incarceration, the penalties' severity is comparable to a prison sentence of more than six months, the Sixth Amendment entitles the accused to a jury trial.[28]

         B. Congress Has Imposed the Deportation Penalty for Criminal Conviction

         The government further argues that removal that is triggered by a criminal conviction should not be taken into account because it is a penalty that results from a congressional enactment and is not part of the penalty designated by the legislature that created the offense, in this case, the Council of the District of Columbia. This argument misapprehends Blanton's meaning and is contrary to its purpose.[29] In Blanton, the Court rejected the notion that a court may gauge the seriousness of an offense for Sixth Amendment purposes by coming to a subjective judgment about the "nature" of the offense. 489 U.S. at 541-42, & n.5. Instead, the seriousness of an offense is to be assessed by reference to objective standards - penalties - "resulting from state action, e.g., those mandated by statute or regulation." Id. at 543 n.8. Through the penalties mandated by public officials and elected representatives, "the laws and practices of the community [are] taken as a gauge of its social and ethical judgments." Id. at 541 n.5 (citing District of Columbia v. Clawans, 300 U.S. 617, 628 (1937)).[30] Congress, as the national legislature, is presumed to reflect the nation's social and ethical judgments; moreover, it is the only legislative body that can prescribe the penalty of removal for a criminal conviction. See United States v. Arizona, 641 F.3d 339, 349 (9th Cir. 2011), partially rev'd on other grounds, 567 U.S. 387 (2012) ("[R]emoval is exclusively the purview of the federal government.")) That penalty is triggered by conviction of an offense that falls within offense classifications identified by Congress in the INA, regardless of whether the conviction results from violations of federal, state, or District of Columbia law.[31] There is no reason grounded in the purpose of Blanton's penalty-based analysis to exclude from Sixth Amendment consideration the serious penalty of removal that attaches to a criminal conviction, and to which the accused is exposed, because it has been imposed by Congress rather than the local legislature.[32]

         C. Principles Applicable to Constitutional Provisions Other Than the Sixth Amendment Right to Jury Trial

         The government points to cases holding that deportation is not "punishment" for a crime and argues that Padilla's acknowledgement that it is a serious penalty central to a criminal conviction did not sub silentio overrule them. The cases on which the government relies are not on point because they did not present a Sixth Amendment claim, but arose under different constitutional provisions, the Double Jeopardy Clause of the Fifth Amendment, U.S. Const. amend. V, and the Ex Post Facto Clause, id., art. I, § 10. This is a significant difference. Because the Constitution's text is silent as to how these Clauses are to be applied, the Court has ruled that the question turns on whether a law "retroactively alter[s] the definition of [a] crime[] or increase[s] the punishment for criminal acts, " Collins v. Youngblood, 497 U.S. 37, 43 (1990) (Ex Post Facto Clause); or whether the state is "punishing twice, or attempting a second time to punish criminally, for the same offense, " Helvering v. Mitchell, 303 U.S. 391, 399 (1938) (Double Jeopardy Clause). The threshold question of whether either of these Clauses applies in a particular case therefore depends on whether the law or government action under judicial review involves a criminal offense or punishment for a crime.[33] There is no similar threshold question here, however, because the Sixth Amendment by its terms applies to "all criminal prosecutions, " U.S. Const. amend. VI, and this case involves a criminal prosecution. The question before us is different, whether the penalties that attach if the criminal prosecution results in a conviction for misdemeanor sexual abuse of a minor meet the Court's definition of what constitutes a "serious" offense that would entitle the accused to demand that the criminal prosecution be presented to, and decided by, a jury. This explains why Padilla, which also dealt with the scope of another of the Sixth Amendment rights of the accused in a criminal prosecution - the right to effective assistance of counsel - did not need to overrule any of the cases cited by the government, which arose under other constitutional provisions.[34] Padilla recognizes that deportation, even though "it is not, in a strict sense, a criminal sanction, " because of its "unique nature, " is nonetheless a "penalty" that is so "enmeshed" in the criminal consequences of a conviction that it triggers the right to the assistance of counsel under the Sixth Amendment. 559 U.S. at 365-66. Thus, even though it did not decide the question presented in this case, Padilla supports (and the cases on which the government relies do not undermine) that removal is a penalty to be factored in when applying the Court's penalty-oriented Blanton analysis to determine whether the accused has a Sixth Amendment right to a jury trial in a criminal prosecution.

         D. Practicality of Application

         Finally, the government asserts that there are "practicalities and uncertainties" as to whether conviction of an offense renders a defendant removable which could make application of a Blanton analysis difficult in some cases.[35] The government does not argue that any such difficulties are presented in this case, as it agrees that appellant's conviction makes him deportable.[36] Our holding today is clear: the Sixth Amendment entitles a defendant to a jury trial if he is charged with a deportable offense, even if the maximum period of incarceration does not exceed six months. The statutory basis for the deportation penalty is readily ascertainable, as the INA identifies categories of offenses that render a convicted noncitizen defendant deportable. See 8 U.S.C. § 1227 (a)(2) (2012).[37] There is no dearth of law on the subject: decisions of the Board of Immigration Appeals ("BIA"), [38] cases from other jurisdictions, [39] and guidance provided by federal agencies charged with administration of admission and exclusion of persons to the United States.[40]

         Even if they were not purely hypothetical here, the difficulties that the government fears may come to pass in some other case are too remote and of insufficient import to outweigh the loss of the constitutional right to a jury trial. Blanton's penalty-oriented analysis was intended to safeguard this important right where the severity of the potential penalties raises the stakes in a criminal prosecution. In a case where the prosecution and defense are in disagreement on the question of whether an accused will face the serious penalty of deportation if convicted, the trial court is not without resources to come to a sound resolution of the constitutional issue presented. Government counsel are part of the Department of Justice, which has deep expertise in immigration matters and is part of the same executive branch as the Departments of State and Homeland Security, which have responsibility for enforcing the immigration laws. Defense counsel have an obligation to advise their clients competently on the question of immigration consequences. See Padilla, 559 U.S. at 369. If necessary, the court presiding over a criminal prosecution can appoint its own expert advisor on immigration law.

         We do not expect this to be a common occurrence in Superior Court. Although genuine disputes about deportability might arise in an immigration proceeding, we think they will seldom occur in the context of a pretrial demand for a jury trial. It is not very likely that a defendant would challenge the government's representation in court that an offense is not deportable, or that the government would make such a representation without being confident that its position is legally correct.[41] The opposite situation, where the government were to assert (contrary to the defendant's view) that a charged offense is deportable, and thus, jury demandable, presents no issue as the defendant may always waive the right to a jury trial. If the trial court nonetheless must decide a jury demand based on a difficult and unsettled question of deportability, it has the obligation - as in so many other areas[42] - to decide the constitutional issue to the best of its ability. See D.C. Code § 16-705 (a) (mandating that where the Constitution so requires, trial "shall be by jury" unless waived by defendant). Where a jury trial demand is made in a case with a truly vexing issue of deportability, the trial court can decide to default to recognition of the Sixth Amendment right, and avoid the risk of imperiling a conviction that may be obtained after a bench trial, should it eventually be determined that denial of the jury trial demand was based on a flawed judgment on the deportation question. The additional time required for a jury trial may well be offset by the time saved in pretrial argument. Even if some judicial efficiency might be lost, in the weighing of harms and benefits on a constitutional scale, this remote possibility is not a determinative factor.

         We conclude that the penalty of deportation, when viewed together with the 180-day maximum period of incarceration for misdemeanor sexual abuse of a minor, overcomes the presumption that appellant was charged with a petty offense and triggers the Sixth Amendment right to a trial by jury. As appellant was denied his rightful demand for a jury trial, the conviction is reversed and the case is remanded for further proceedings.

         So ordered.

          Washington, Senior Judge, concurring

         As my colleagues have made clear in their competing opinions in this case, our attempt to reconcile the Supreme Court's decisions in Baldwin v. New York, 399 U.S. 66 (1970), and Blanton v. City of N. Las Vegas, 489 U.S. 538 (1989), with the D.C. Misdemeanor Streamlining Act, see Omnibus Criminal Justice Reform Act of 1994, D.C. Law § 10-151, 41 D.C. Reg. 2608 (effective Aug. 20, 1994), has resulted in a decision where two individuals charged with the same misdemeanor crime in the District of Columbia enjoy very different trial rights and privileges due to the severity of the consequences they individually face for committing that crime. I write separately because I am concerned that our decision today, while faithful to the dictates of Blanton, creates a disparity between the jury trial rights of citizens and non-citizens that lay persons might not readily understand. That disparity is one that the legislature could and, in my opinion, should address. The failure to do so could undermine the public's trust and confidence in our courts to resolve criminal cases fairly.

         In Baldwin, the Supreme Court interpreted the Sixth Amendment to the Constitution as guaranteeing a right to a jury trial only in criminal cases where an individual is charged with committing serious crimes. The Court went on to distinguish between serious and non-serious crimes, concluding that a serious crime was one that carried the possibility of incarceration for six months or more. Baldwin, 399 U.S. at 69.

         In Blanton, the Supreme Court, while reiterating that the maximum potential sentence that can be imposed for the commission of a crime is a significant indicator of whether society considers the crime to be serious, also acknowledged that the length of the potential sentence does not necessarily end the inquiry if there are other "objective indications of the seriousness with which society regards the offense." Blanton, 489 U.S. at 541 (quoting Frank v. United States, 395 U.S. 147, 148 (1969)). As the majority opinion points out, the Supreme Court did not parse whether "the other penalties" were "penal" or "civil" in nature and referenced several penalties that were "civil" in nature when assessing the relative burdens faced by defendants in criminal cases.

         The Misdemeanor Streamlining Act (Act), passed in 1994, was designed to "relieve pressure on the court's misdemeanor calendars, allow for more cases to be heard by hearing commissioners, and allow for more felony trials to be scheduled at an earlier date." Council for the District of Columbia, Committee on the Judiciary, Report on Bill 10-98, at 3-4 (Jan. 26, 1994). The Act sought to accomplish these goals by reducing the maximum sentence that could be imposed for the commission of most misdemeanor crimes in the District of Columbia from six months or more to 180 days or less. By reducing the maximum possible sentence for the majority of misdemeanor offenses, the crimes no longer met the Baldwin threshold for serious crimes, and thus, the vast majority of defendants in the District of Columbia charged with misdemeanor crimes were no longer constitutionally entitled to a jury trial. Before today, we rarely, if ever, looked past the legislative intent expressed in the relevant criminal statutes to determine whether the Council and/or Congress intended for the crime to be considered a serious one. However, because we have interpreted Blanton as authorizing a broader view of the applicable statutory penalties for determining whether the crime is considered serious, we are in the unenviable position of trying to ascertain legislative intent without the benefit of a well-developed legislative record.

         As Justice Gorsuch recently noted in his concurring opinion in Sessions v. Dimaya, "[G]rave as th[e deportation] penalty may be many civil laws today impose many similarly severe sanctions" 138 S.Ct. 1204, 1231 (2018) (Gorsuch, J., concurring). That fact has not been lost on this court as we also have recognized that there are significant, if not similarly severe, sanctions that attach to convictions for misdemeanors in the District of Columbia. See Foote v. United States, 670 A.2d 366, 370 (D.C. 1996) (noting that appellant's counsel identified collateral consequences to include "residential eviction, forfeiture of assets, revocation of driving privileges, . . . ineligibility for federal benefits, and enhanced periods of incarceration for repeat offenders") (footnotes omitted); see also Thomas v. United States, 942 A.2d 1180, 1186 (D.C. 2008) (condition that defendant register under the Sexual Offender Rehabilitation Act did not render misdemeanor child sexual abuse a jury-demandable crime); Young v. United States, 678 A.2d 570, 571 (D.C. 1996) ...


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