United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
M. MERIWEATHER, UNITED STATES MAGISTRATE JUDGE
Shailly Barnes (“Ms. Barnes”), Reverend Graylan
S. Ellis Hagler (“Rev. Hagler”), Reverend Jimmie
Hawkins, (“Rev. Hawkins”), Reverend William Lamar
(“Rev. Lamar”), Reverend Hershey A. Mallette
(“Rev. Mallette”), Rosalyn Woodward Pelles
(“Ms. Pelles”), Noam Sandweiss-Back (“Mr.
Sandweiss-Beck”), and Reverend Elizabeth Theoharis
(“Rev. Theoharis”) (collectively
“Defendants”) have filed a pending Motion for a
Jury Trial. See generally Defs.' Mot. for Jury
Trial (“Defs.' Mot.”), ECF No. 61; see
also Reply Mem. of Law in Supp. of Defs.' Mot. for
Jury Trial (“Defs.' Reply”), ECF No. 76.
Defendants have been charged with violating 40 U.S.C. §
6135 (Parades, Assemblages, and Display of Flags on the
Supreme Court Grounds), which makes it unlawful to
“parade, stand, or move in processions or assemblages
in the Supreme Court Building or grounds, or to display in
the Building and grounds a flag, a banner, or device designed
or adapted to bring into public notice a party, organization,
or movement.” 40 U.S.C. § 6135. Defendants'
trial is scheduled to commence on October 28, 2019.
See 04/15/2019 Min. Order. Defendants contend that
they are entitled to a jury trial because: (1) their charged
offense is a serious offense; (2) they have a substantive
statutory right to a jury trial under D.C. law which they
should not forfeit due solely to the government's
selection of a federal forum; and (3) alternatively, the
Court should exercise its discretion to hold a jury trial.
The United States counters that the Defendants are not
entitled to a jury trial because they have been charged with
a petty offense, and the penalties or trial rights that would
apply in a District of Columbia Superior Court proceeding are
not applicable in federal court. See generally
Gov't's Omnibus Opp'n to Defs.' Mot. for Jury
Trial (“Gov't's Resp.”), ECF No. 75.
Having considered the parties' arguments and the
applicable law, the Court concludes that the Defendants are
not entitled to a jury trial, declines to exercise its
discretion to allow a jury trial, and therefore DENIES
are a group of eight religious leaders and followers
connected to the Poor People's Campaign, a national
social justice advocacy group. See Defs.' Mot.
at 1. According to the United States, there was a large
demonstration and march near the Supreme Court on June 11,
2018. See Gov't's Resp. at 1. As a portion
of the crowd of protesters moved from public sidewalks and
the street onto the Supreme Court plaza, members of the
United States Capitol Police allegedly issued warnings that
the individuals could be arrested if they entered Supreme
Court grounds. Id. at 2. The United States asserts
that Defendants, each wearing clothing identifying them as
members of the Poor People's Campaign, walked up the
lower stairs of the Supreme Court plaza and gathered near the
base of the stairs, eventually giving a speech on a megaphone
to onlooking tourists and demonstrators. Id. at 1-2.
After receiving multiple warnings that they could be
arrested, Defendants allegedly continued to demonstrate on
the steps of the Supreme Court and were arrested.
See Information, ECF No. 1.
have been charged by Criminal Information for a violation of
40 U.S.C. § 6135 because they allegedly “did
unlawfully parade, stand, or move in processions or
assemblages on the Supreme Court Grounds, or display on the
Grounds a flag, banner, or device adapted to bring public a
notice a party, organization, or movement.”
Id. On June 12, 2018, each Defendant had an initial
appearance and was arraigned before the undersigned in the
United States District Court for District of Columbia.
See 06/12/2018 Min. Entry.
contend that they are entitled to a jury trial because: (1)
the applicable penalty renders the charged offense a serious
offense; (2) they have a substantive statutory right to a
jury trial under D.C. law and they should not lose that right
based on the prosecutor's selection of a federal forum;
and (3) alternatively, given the circumstances of this case
the Court should exercise its discretion to empanel a jury.
The Court will address each argument in turn below.
Federal Law Classifies Defendants' Charged Offense as a
Petty Offense for Which There Is No.
Entitlement to a Jury Trial.
Sixth Amendment of the Constitution guarantees that “in
all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed [.]” U.S. Const. Amend. VI. However,
“there is a category of petty crimes or offenses which
is not subject to the Sixth Amendment jury trial provision.
“ Duncan v. Louisiana, 391 U.S. 145, 169
(1968); see also Cheff v. Schnackenburg, 384 U.S.
373, 379 (1966) (“[A] petty offense . . . does not
require a jury trial.”). To determine whether a crime
is petty or not, courts look to the “severity of the
maximum authorized penalty.” Blanton v. North Las
Vegas, 489 U.S. 538, 541 (1989). An offense that imposes
a maximum prison term of six months or less is presumed
petty, unless the legislature has authorized additional
statutory penalties that are so severe that they indicate
that the legislature considered the offense to be serious.
Lewis v. U.S., 518 U.S. 322, 326 (1996).
violation of 40 U.S.C. § 6135 is punishable with a
maximum of sixty days in jail and $5, 000 maximum fine.
Congress defined the maximum penalty in 40 U.S.C. §
6137, which provides that an individual who violates the
relevant subchapter of U.S. Code Title 40, Chapter 61 may be
imprisoned for up to sixty days and/or fined pursuant to
Title 18. See 40 U.S.C. § 6137. Under Title 18,
Congress classified any offense carrying a maximum term of
imprisonment of six months or less, but more than thirty
days, as a Class B misdemeanor. See 18 U.S.C. §
3559(a)(7). Accordingly, Defendants' violation is a Class
B misdemeanor, which carries a maximum potential fine of $5,
000. See 18 U.S.C. § 3571(b)(6) (setting $5,
000 as the maximum potential fine for Class B misdemeanors).
Consequently, Defendants have been charged with an offense
that is presumptively considered a petty offense that does
not entitle Defendants to a jury trial.
United States v. Nactigal, the Supreme Court found
that a defendant who faced a maximum term of imprisonment of
six months and $5, 000 in fines based on a DUI charge did not
have a right to a jury. See generally United States v.
Nactigal, 507 U.S. 1 (1993). The Court first reasoned
that because the maximum term of imprisonment was six months,
the DUI was presumptively a petty offense. Id. at 4.
The Court next analyzed the additional fine penalties to
determine whether they overcame the presumption, ultimately
holding that a $5, 000 penalty and a probation alternative
were “not sufficiently severe to overcome [the]
presumption.” Id. at 5.
the Defendants' potential penalty of sixty days in jail
falls well below the six-month “petty offense”
cap, creating a presumption that it is a petty offense.
Similarly, like the $5, 000 DUI maximum penalty in
Nactigal, Defendants' additional potential $5,
000 maximum fine is not sufficient to overcome the
presumption that the crime is a petty offense. Therefore,
based both on the maximum terms of imprisonment and the
potential for additional penalties, the Defendants'
charge qualifies as a petty offense which does not trigger a
right to a jury trial.
suggest that the Court should deem Defendants' charged
offense “serious” because Defendants would have a
right to a jury trial if they were prosecuted in Superior
Court. See Defs.' Mot. at 3-7; see also
Defs.' Reply at 2. The D.C. Council has afforded a right
to a jury trial to state court defendants charged with crimes
that carry a potential fine of more than $1, 000 or a
potential sentence of more than 180 days. See D.C.
Code § 16-705(b). Thus, the potential $5, 000 fine that
Defendants face would entitle them to a jury trial in
of the rights that may apply in state court, Congress clearly
intended that Defendants' charge be considered a petty
offense, not a serious one. When a legislature establishes
the maximum penalty for a crime, it “include[s] within
the definition of the crime itself a judgment about the
seriousness of the offense.” Frank v. United
States,395 U.S. 147, 149 (1969); see also
Lewis, 518 U.S. at 328. When Congress set a maximum
penalty of sixty days imprisonment for violations of 18
U.S.C. § 6135, it defined the offense as a Class B
misdemeanor carrying a potential fine of up to $5, 000.
See 18 U.S.C. § 3559(a)(7). Separately,
Congress explicitly defined a “petty offense” as
a Class B misdemeanor that carries a potential fine not
greater than the $5, 000 fine set forth in 18 U.S.C.
§§ 3571(b)(6) or (7). See 18 U.S.C. §
19. Therefore, Congress clearly intended to classify
Defendant's alleged conduct as a petty offense. Even
assuming that the D.C. Council's decision to classify