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Matthew G. McHenry, OSB 043571 Levine & McHenry LLC 1001 S.W. Fifth Avenue, Suite 1414 Portland, Oregon 97204 503-546-3927 email: matthew@levinemchenry.com IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, Plaintiff, v. SEAN ANDERSON, et al. Defendant.
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No. 3:16-cr-00051-BR-12 JOINT STATEMENT OF AUTHORITIES: COURT DISCRETION TO CONDUCT JURY TRIAL ON CLASS B MISDEMEANORS
The Court ordered the parties to file a joint status report setting out 1) the parties’ arguments as to the Court’s authority to provide Defendants with a trial by jury on the Class B misdemeanors; 2) if so, the parties’ arguments regarding whether the Court should exercise its discretion to provide Defendants with a trial by jury on the Class B misdemeanors; and 3) the parties’ recommendations as to trial procedure in the event the Court determines it will conduct a bench trial as to the Class B misdemeanors. Docket No. 1756. The government believes the Court does not have the discretion to allow a jury trial on the Class B misdemeanors. The defendants believe the Court does have that discretion, and should conduct a jury trial on those counts.
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Government’s Position By order dated January 20, 2017, this Court found that the charged misdemeanors in this case are Class B misdemeanors and, therefore, petty offenses on which Defendants do not have a constitutional right to a jury. CR 1756. The Court has asked the parties to address three points: (1) the parties’ arguments to the Court regarding the Court’s authority to provide Defendants with a jury trial on the petty offenses; (2) assuming the Court has discretion to provide Defendants with a jury trial on the petty offenses, should it exercise that discretion in this case; and (3) the parties’ recommendations on trial procedures in the event the Court determines that it will conduct a bench trial on the petty offenses. Id. The Court Does Not Have Discretion to Grant Defendants a Jury Trial on Petty Offenses Defendants argue that this Court has discretion to grant them a jury trial on the petty offenses due to “special circumstances” of the case. In support of their argument, Defendants rely on one case, United States v. Greenpeace, Inc., 314 F.Supp. 2d 1252, 1263 (S.D. Fla. 2004), which improperly relied on pre-1971 jurisprudence that is no longer valid. This Court does not have discretion to grant defendants a jury trial on the petty offenses. Prior to 1971, courts had clearly established that there was no constitutional right to a jury trial for crimes for which the penalty did not exceed six months, and that as a result, Congress could direct that a defendant charged with such a crime not be given a jury trial. See, District of Columbia v. Clawans, 300 U.S. 617 (1937). What was not clear was whether, in the federal system, all petty offenses were to be tried without a jury. Several courts considered the question of whether federal petty offenses were always to 2 – Joint Statement of Authorities: Discretion to Conduct Jury Trial on Class B Misdemeanors
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be tried without a jury, or whether petty offenses were to be tried with a jury, absent a specific directive from Congress. Some courts held that absent a specific directive from Congress, petty offenses were to be tried with a jury. See, e.g., Smith v. United States, 128 F.2d 990, 992 (5th Cir. 1942) (where “Congress has not conferred upon the district courts jurisdiction to try petty criminal offenses without a jury... [the district court] erred in overruling the motion for trial by jury”); United States v. Bishop, 261 F.Supp. 969, 972 (D.C. Cal. 1966) (considering “whether Congress has made any provision concerning the method of trial herein--more specifically whether Congress has spoken on the subject of the jury, non-jury method of trial in the District Court on an offense of the kind here involved” and determining based on the then statutory scheme, that Congress had not, and that as a result, petty offenses tried before a district court were to be tried before a jury”); United States v. Martinelli, 240 F.Supp. 365, 368 (N.D.Cal. 1965) (inferring from “legislative pattern [] that Congress intended that petty offenses should be tried like all other criminal offenses (jury trial) unless it otherwise provided”). In United States v. Beard, 313 F.Supp. 844, 845-46 (D.C. Minn. 1970), the court concluded that absent Congressional direction, it had discretion to grant a jury trial on a petty offense, “[s]ince defendants have no constitutional right to a jury trial, and since Congress has not spoken on the subject, it would appear that the granting of a jury trial rests within the court's discretion.” In 1971, Congress passed the Rules Enabling Act, and the Supreme Court promulgated The Rules of Procedure for the Trial of Minor Offenses before United States Magistrates (“1971 Magistrates Rules”). The 1971 Magistrates Rules distinguished between “petty offenses” and “minor offenses.” “Petty offenses” were defined as offenses 3 – Joint Statement of Authorities: Discretion to Conduct Jury Trial on Class B Misdemeanors
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for which the punishment could not exceed six months, while “minor offenses” were defined as non-felony offenses for which the punishment could exceed six months. Rule 2 of the 1971 Magistrates Rules, provided that with regard to minor offenses, the magistrate had to inform the defendant “that he has a right to a trial before a judge of the district court and a jury.” In contrast, Rule 3 of the 1971 Magistrates Rules, provided, in pertinent part, that where a petty offense is tried before a magistrate judge, “[t]he trial shall be conducted as are trials of petty offenses in the district court by a district judge without a jury.” (emphasis added). The deliberate differences between Rules 2 and 3 and the clear language used by Rule 3, made the impact of Rule 3 clear -- the trial of a petty offense in front of a magistrate judge was to be conducted the same way it would be conducted in front of a district judge -- without a jury.1 The Fourth Circuit Court of Appeals recognized the impact of the rule change in United States v. Merrick, 459 F.2d 644, 645-646 (4th Cir. 1972), “Rule 3 of the Rules of Procedure for the Trial of Minor Offenses before Magistrates, demonstrate[s] the intent of both the Congress and the Supreme Court to provide for the trial of a petty offender without a jury when he elects to be tried in a district court.” Similarly, in United States v. Floyd, 345 F.Supp. 283 (W.D. Okla. 1972), the defendant demanded a jury trial on the petty offense of unlawfully entering a military reservation. The court concluded that the charge was a petty offense, and the defendant
1
The Magistrates Rules went through several iterations before they were subsumed into the Federal Rules of Criminal Procedure and codified in Rule 58, which provides, in pertinent part, that “[a]t the defendant's initial appearance on a petty offense or other misdemeanor charge, the magistrate judge must inform the defendant of... the right to a jury trial before either a magistrate judge or a district judge -- unless the charge is a petty offense.” (emphasis added). The principle remains, defendants charged with petty offenses need not be advised of a right to a jury trial because they have no such right and will not be provided with a jury trial, even at the discretion of the court.
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had no constitutional right to a jury trial. Id. at 286. The defendant nevertheless urged the court to exercise its discretion arguing, under Bishop, that the defendant was entitled to a jury trial unless Congress had specifically provided to the contrary. The court held that Congress had specifically addressed the issue of whether a petty offense could be tried with a jury, removing the court's discretion. Id. at 286. When Congress promulgated a statute defining “petty offense”, it presumably knew of the Supreme Court's treatment of them as having no constitutional right to a jury trial, “it would be unrealistic to suppose that Congress was unaware of this most important characteristic of a petty offense in making this classification.” Id. The court noted that after Bishop, Congress amended 18 U.S.C. § 3401 and indicated that defendants may not have a jury trial right in petty offenses. Id. at 287. Furthermore, by limiting the punishment to a petty offense in 18 U.S.C. § 1382 (unlawfully entering military reservation), Congress specifically indicated its judgment about the seriousness of the offense. Id. The court concluded that Bishop was no longer valid because the Supreme Court, “has expressed itself on the requirement for a jury trial in the trial of petty offenses in the ‘Rules of Procedure for the Trial of Minor offenses before United States Magistrates’ . . . [b]y the distinction between the minor offenses and petty offenses in the rules, it is evident that the Supreme Court conceived only a right of trial by jury for minor offenses.” Floyd, 345 F.Supp. at 287288. The court concluded that even if it had discretion to order a jury trial, it would not exercise that discretion because the court's interest in the orderly administration of justice and the advantages of an expeditious and relatively inexpensive adjudication by the court outweighed any benefit that might accrue to the defendants from a jury trial. Id. at 288.
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Defendants rely on United States v. Greenpeace, Inc., 314 F.Supp. 2d 1252, 1263 (S.D. Fla. 2004), for the proposition that this Court has discretion to grant a jury trial because of the special circumstances of the case, including the First Amendment implications. In Greenpeace, the court found that defendants did not have a constitutional right to a jury trial. 314 F. Supp. 2d at 1261. Nevertheless, the court concluded that it had the authority to empanel a jury even where the Constitution does not require it “consistent with Beard and Smith and Justice Stewart’s statement in Ross.” Id. at 1263. The court rejected the government’s argument that Blanton changed the law regarding the right to a jury trial and found “[a]s far as I can tell, there is no statute, rule, or precedent which prohibits a jury trial absent a constitutional requirement.” Id. The problem with Greenpeace is that it overlooked the precedent set forth above. The court failed to cite Rule 58(b)(2) and the 1971 Magistrate Rules, and it neither cited nor distinguished the decisions in Floyd and Merrick. The Greenpeace court also relied on Justice Stewart’s dissent in Ross v. Bernhard, 396 U.S. 531, 550 (1970), in which he wrote “[n]othing in the Constitution . . . precludes [a] judge granting a jury trial as a matter of discretion.” This reliance is misplaced to two important reasons. First, Ross was a civil shareholders’ derivative suit, not a criminal case. Second, Justice Stewart’s dissenting opinion did not carry the day and has no precedential value. The reasoning in Greenpeace is similar to that in United States v. Thomas, 574 F.Supp. 197 (D.D.C. 1983). In Thomas, the defendant was prosecuted for placing a structure in the form of a cardboard missile on the White House sidewalk. Id. at 198. The penalty for the charge was not more than $500 or imprisonment for not more than six months or both. Id. Defendant demanded a jury trial citing his protest activity and the 6 – Joint Statement of Authorities: Discretion to Conduct Jury Trial on Class B Misdemeanors
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First Amendment. The district court agreed, relying on District of Columbia v. Clawans, 300 U.S. 617 (1937) that First Amendment issues in the case created “special circumstances that warranted a jury trial. However, Thomas was subsequently rejected in United States v. Musser, 873 F.2d 1513 (D.C. Cir. 1989). In Musser, the defendant, a protester, was convicted of having an unattended sign and camping in a park adjacent to the White House. Musser relied on Thomas, to argue that his case involved “special circumstances” that rendered what would otherwise be a petty offense subject to a jury trial. Musser, 873 F.2d at 1515. The court rejected the continuing viability of the “special circumstances” rule the court relied on in Thomas. Unlike the court in Greenpeece, the Musser court recognized the Supreme Court’s clarification of the law. The court noted that while the Thomas decision was “at least arguably justifiable” when made in light of the Supreme Court’s Clawans decision, subsequent cases clarified the law and removed from consideration any factor beyond the applicable maximum term of imprisonment and any additional statutory penalties. Id. at 1516.
The Musser court
cited Blanton v. City of North Las Vegas, 489 U.S. 538 (1989), for the proposition that while the six-month maximum incarceration line is “only presumptive and not conclusive” of the right to a jury trial, the only other relevant consideration is any additional statutory penalties: Justice Marshall's opinion for the unanimous Court made it plain that, where the maximum term of incarceration is for six months or less, “[a] defendant is entitled to jury trial ... only if he 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.” Musser, 873 F.2d at 1516 (emphasis added) (quoting Blanton, 489 U.S. at 543).
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Beyond Greenpeace and Thomas, the government has not found any cases under the modern rules and Supreme Court precedent that support Defendant’s claim that a court has discretion to order a jury trial for a petty offense unless the statutory penalties change the nature of the offense. In United States v. Donovan, the court considered the defendant's claim that even if his offenses were deemed petty he should be granted a jury trial because “such a trial would likely be fairer than a bench trial, since [the defendant] would be judged by his peers, and since the Government [would] likely call witnesses who are federal employees, as are the judges sitting in federal court.” No. 04 Cr. 1346, 2005 WL 1322715, *3 (S.D.N.Y. May 2, 2005). The court rejected the argument and held that “the governing Supreme Court decisions foreclose the notion that a defendant may have a jury trial in cases involving a petty offense.” Id. Similarly, in United States v. Watchman, the Court found that “a magistrate judge does not have any inherent or discretionary authority to grant a jury trial if that authority is not specifically found in the ‘Constitution and laws of the United States.’” No. CR 05-4149M, 2005 U.S. Dist. LEXIS 24788 at *7 (D. Ariz. Oct. 19, 2005). In light of the statutes and procedural rules for magistrates’ authority to conduct trials, including Rule 58(b)(2)(F) of the Federal Rules of Criminal Procedure, the court was unable to find any basis to conclude that it had the inherent authority to order a jury trial for a petty offense. Id. If the Court Concludes it has Discretion, it Should Decline to Exercise That Discretion If this Court nevertheless concludes that it has discretion to grant Defendants a jury trial on the petty offenses, it should decline to exercise that discretion. First, in its decisions finding that the right to a trial by jury is governed by the applicable statutory penalties, the Supreme Court has repeatedly cautioned “[t]he judiciary should not 8 – Joint Statement of Authorities: Discretion to Conduct Jury Trial on Class B Misdemeanors
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substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task[.]” Lewis v. United States, 518 U.S. 324, 326 (1996) (quoted citations omitted). Second, even assuming that Greenpeace was properly decided, the factors cited by the court in that case are not present here. In Greenpeace, the court found that the case was “unusual, and would benefit from a jury’s collective decisionmaking.” Greenpeace, 314 F.Supp. 2d at 1264. The court cited the fact that the government “chose to proceed by indictment;” the statute the government charged had not been used in more than a century; and the case was a “rare . . . prosecution of an advocacy organization for conduct having to do with the exposition of the organization’s message” and that such prosecution might “signal a change in DOJ policy.” Id. at 1264. None of the factors cited by the Greenpeace court are present here. In this case, the government charged defendants by information, not indictment. CR 1628. Second, unlike the charges in Greenpeace, the charges in the information have been used in the last hundred years. See, e.g., United States v. Best, No. 5:11-CR-00414 HRL (N.D. Cal. 2012). Finally, there is nothing about the prosecution that could be viewed as a departure from Department of Justice policy. The court in Greenpeace was concerned about the prosecution of an advocacy group because of allegations that the prosecution was politically motivated retaliation against an organization that had criticized the sitting president. Unlike Greenpeace, this prosecution involves individuals, not an advocacy group. There are no credible allegations that the prosecution is politically motivated by criticisms of the current or past president. Defendants cite the public nature of the case, media coverage, their protest, claims of selective prosecution, and the forfeiture allegation as grounds for the Court to exercise 9 – Joint Statement of Authorities: Discretion to Conduct Jury Trial on Class B Misdemeanors
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discretion to grant them a jury trial on the petty offenses. None of these factors addresses the seriousness of the offense as determined by the statutory penalties and none should influence the Court to grant defendants that to which they are not entitled. See Blanton, 489 U.S. at 541 (judiciary should not substitute its judgment as to seriousness for that of the legislature). Finally, as set forth below, trial of the petty offenses by the Court is the most efficient use of judicial resources. See, Duncan v. Louisiana, 391 U.S. 145, 160 (1968) (Framers did not intend to deviate from common-law practice of non-jury trials for petty offenses, and “the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications.”) Here, some of the evidence supporting the misdemeanors will be presented to the jury in support of the felony charges and can be simultaneously heard by the court. The government will supplement that evidence while the jury deliberates. That presentation will take less than one day. If the petty offenses are subject to a bench trial, the parties will not have to formulate jury instructions (which do not exist because the offenses are not meant to be tried to a jury), the parties will not have to prepare extensive opening statements and closing arguments on the petty offenses, and the jury will not have to deliberate on the petty offenses. Procedures for Conducting a Bench Trial on the Petty Offenses The information charges seven counts. Count one charges Trespassing, in violation of 50 C.F.R. §§ 26.21(a) and 28.31. Counts two through five charge Tampering with Vehicles and Equipment in violation of 50 C.F.R. §§ 27.65 and 28.31. Count 6 10 – Joint Statement of Authorities: Discretion to Conduct Jury Trial on Class B Misdemeanors
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charges Destruction and Removal of Property in violation of 50 C.F.R. §§ 27.61 and 28.31. Count 7 charges Removal of Property in violation of 50 C.F.R. §§ 27.61 and 28.31. As set forth above, the government will offer some of the evidence that supports the petty offenses to the jury in support of the felony charges. This evidence will be relevant and admissible to the felony charges and the misdemeanor charges. The Court can simultaneously consider the evidence as it relates to the petty offenses. After the jury begins deliberations, the government will offer additional evidence in support of the petty offenses. The defense can then offer any evidence to rebut the government’s case on petty offenses and the court can render a verdict. Importantly, the parties will not have to formulate and the jury will not have to consider jury instructions for the petty offenses, the parties will not have to prepare extensive opening statements and closing arguments regarding the petty offenses, and the jury will not have to spend time deliberating about the petty offenses. There is no question that conducting a bench trial on the petty offenses will reduce the time and expense required for adjudication of the misdemeanor charges. Authorities in Support of Defendants’ Position Nothing in the Federal Rules of Criminal Procedure or the rules of this Court suggests the Court lacks the authority to conduct a jury trial here. Further, “[n]othing in the Constitution or the Rules precludes the judge from granting a jury trial as a matter of discretion.” Ross v. Bernhard, 396 U.S. 531, 550 (1970) (Stewart, J., dissenting from a decision of the Court that found a 7th Amendment right to a jury trial in a civil case). See
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also Duncan v. Louisiana, 391 U.S. 145, 159 (1968) (“Crimes carrying possible penalties up to six months do not require a jury trial”) (emphasis added). In United States v. Greenpeace, Inc., 314 F. Supp. 2d 1252 (S.D. Fla. 2004), the government charged various members of Greenpeace with violating 18 U.S.C. 2279 (boarding vessels before arrival), a Class B misdemeanor. Id. at 1261. While ruling the defendants did not have a right to a jury trial, the Court granted one nevertheless, finding it “has discretion to empanel a jury even where the constitution does not require it.” Id. at 1263. The Court’s reasoning is sound and applicable in the instant case: There is an old Fifth Circuit case which appears to hold that, even for petty offenses where the Sixth Amendment does not mandate trial by jury, a court may empanel a jury as long as Congress has not decreed that such offenses can be tried without a jury. See Smith v. United States, 128 F.3d 990, 991–92 (5th Cir. 1942). Congress has enacted legislation which makes a Class B misdemeanor . . . a petty offense, and which allows (but does not require) magistrate judges to try petty offenses. See 18 U.S.C. § 19 (Class B misdemeanor is a petty offense); 18 U.S.C. § 3401(b) (magistrate judges may try petty offenses) . . . As far as I can tell, there is no statute, rule, or precedent which prohibits a jury trial absent a constitutional requirement. I therefore conclude, consistent with Beard and Smith, and Justice Stewart's statement in Ross, that I have discretion to empanel a jury even where the Constitution does not require it. Id. See also United States v. Beard, 313 F.Supp. 844, 845–846 (D. Minn. 1970) (granting jury trial as matter of discretion for defendants charged with petty offenses arising out of a “sit-in” protest on steps of federal office building; “[s]ince defendants have no constitutional rights to a jury trial, and since Congress has not spoken on the subject, it would appear that the granting of a jury trial rests within the court’s discretion”); United States v. Martinelli, 240 F.Supp. 365, 370 (N.D. Cal. 1965) (granting jury trial on Class B Misdemeanor of unlawful taking of a bald eagle, in part because “Congress has not indicated otherwise”). 12 – Joint Statement of Authorities: Discretion to Conduct Jury Trial on Class B Misdemeanors
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The Court’s discretion to grant a jury trial arises from to its inherent power. “All federal courts are vested with inherent powers enabling them to manage their cases and courtrooms effectively.” Aloe Vera of Am. Inc., v. United States, 376 F.3d 960, 964–65 (9th Cir. 2004). The “broad inherent powers” of the district court are to be used “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” United States v. Kent, 649 F.3d 906, 912 (9th Cir. 2011). See also United States v. Ray, 375 F.3d 980, 993 (9th Cir. 2004) (“Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.”); Franquez v. United States, 604 F.2d 1239, 1244–45 (9th Cir. 1979) (“In the absence of procedural rules specifically covering a situation, the court may pursuant to its inherent power . . . fashion a rule not inconsistent with the Federal Rules.”). Nothing in the Federal Rules of Criminal Procedure or the rules of this Court suggests the Court cannot conduct a jury trial here. Fed. R. Crim. P. 58 (Petty Offenses and Misdemeanors). Any argument that these crimes are not subject to a jury trial because they are not “serious” enough to be considered petty offenses is inapposite. That doctrine applies to the Sixth Amendment right to a jury trial, and “says nothing about whether a court has discretion to provide a defendant with a jury trial when the Constitution does not so require.” Greenpeace, 314 F.Supp. 2d at 1263. Given that the Court has discretion to grant a jury trial on the Class B misdemeanors, the Court should do so for several reasons. This case is very much in the public eye. Media coverage of the protest since its beginning, through the first trial, and up to today, has been extensive. The jury “has been 13 – Joint Statement of Authorities: Discretion to Conduct Jury Trial on Class B Misdemeanors
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seen as a critical safeguard in the criminal process” since “the early days of our republic.” Id. (explaining reasoning for granting jury trial). A verdict returned by a jury reflects the judgment of the public and the defendants’ peers, and will provide a more satisfactory and acceptable resolution to the public and the defendants than a verdict from the bench. “[J]uries, because of their nature, better embody and represent the judgment of the community.” Id. at 1264. The nature of the case as a protest against governmental oppression also augurs in favor of a jury trial. With individual rights including free speech at stake, it is wholly appropriate for this Court to empanel a jury, for a jury’s “primary purpose in our legal system is to stand between the accused and the powers of the State.” Lewis v. United States, 518 U.S. 322, 335 (Kenney, J., concurring). See also Baldwin v. New York, 399 U.S. 66, 72 (1970) (“[T]he primary purpose of the jury is to prevent the possibility of oppression by the Government; the jury interposes between the accused and his accuser the judgment of laymen who are less tutored perhaps than a judge or panel of judges, but who at the same time are less likely to function or appear as but another arm of the Government that has proceeded against him.”). Further, here the defendants contend the government engaged in selective prosecution and enforcement based on the small percentage of the total number of individuals who came and went from the refuge who were charged. “There is the need for interposing the common sense judgment of a jury between the government and the defendant where the defendant demonstrates to the trial judge that there is a reasonable probability the state is undertaking the prosecution of the petty charge or charges, out of
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spite or vindictiveness.� United States v. Bencheck, 926 F.2d 1512, 1519 (10th Cir. 1991) (abrogated by Lewis v. United States, 518 U.S. 322 (1996). The government has given notice of its intent to seek incarceration upon a misdemeanor conviction. A defendant convicted of multiple misdemeanors could be potentially facing more than 6 months incarceration. The government has included a forfeiture allegation in the misdemeanor information and will seek forfeiture of property (firearms) if it obtains a conviction. The potentially enormous restitution amounts at stake are an additional consequence. While facing multiple Class B misdemeanors, forfeiture of property, and/or large restitution amounts do not confer a right to a jury trial on a petty offense, these are factors this court should consider in determining whether to grant a jury trial as a matter of discretion. The government has also filed a civil forfeiture case against the property of several defendants. United States v. 50 Firearms and Assorted Ammunition, in rem, No. 3:16-CV-01057-MA. The defendants have a Seventh Amendment right to a jury trial in that case. However, some of that same property is potentially subject to the forfeiture allegation on the misdemeanor information. It would be incongruous for that property to be subject to a bench trial determination in one instance, and a jury trial determination in the other. Moreover, Federal Rule of Criminal Procedure 32.2 suggests that, if any count in a case is being tried to a jury, an attendant misdemeanor criminal forfeiture count must also be decided by a jury if the defendants request so: “In any case tried before a jury, if the indictment or information states that the government is seeking forfeiture, the court must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty 15 – Joint Statement of Authorities: Discretion to Conduct Jury Trial on Class B Misdemeanors
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verdict.” Fed. R. Crim. P. 32.2(b)(5)(A) (emphasis added). If either party requests to have the jury determine forfeiture, “the government must submit a proposed Special Verdict Form listing each property subject to forfeiture and asking the jury to determine whether the government has established the requisite nexus between the property and the offense committed by the defendant.” Id. at 32.2(b)(5)(B). The Court should grant a jury trial on all counts to preserve consistency with the forfeiture proceedings. Judicial efficiency and expeditiousness is an important factor. A jury will already be empaneled. No additional court resources would be required have the jury decide the misdemeanors. In fact, conducting a bench trial on the misdemeanors and a jury trial on the felonies would take up more time and resources than a jury trial on all counts, due to the procedural problems with presenting evidence that may be relevant to a misdemeanor count but not to a felony count, as well as the issue of multiple opening statements and closing arguments—one tailored to the court and one to the jury. Trying charges in the same indictment to different fact-finders will invite a host of problems that will hamper the Court’s and parties’ abilities to try the case as efficiently and expeditiously as possible. Finally, the defendants believe the government’s strong desire for a bench trial stems in large part from the jury acquittals in the first trial. The government should not be aided by this Court as it attempts to take this case out of the hands of a jury of the defendants’ peers. Even if the defendants here do not have a Sixth Amendment right to a jury trial, the Court should still grant one, as trial by jury in criminal cases remains “fundamental to the American scheme of justice.” Duncan, 391 U.S. at 149.
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If the Court determines it will not exercise discretion and grant a jury trial on the Class B misdemeanors, the defendants are of the view that the misdemeanor charges should be tried in a separate proceeding before a Magistrate as the statutory scheme provides. 18 U.S.C. § 3401; 28 U.S.C. § 636(a)(3)–(5). Further, in light of this Court’s presiding over the entirety of the first trial as well as all of the pretrial litigation for both trials, defendants will consider a filing motion to recuse this Court from presiding over any bench trial with respect to the misdemeanors.
Respectfully Submitted this 25th day of January, 2017: /s/ Matthew G. McHenry Matthew G. McHenry, OSB No. 043571 Counsel for Sean Anderson On behalf of all listed defendants
/s/ Geoffrey A. Barrow Goeffrey Barrow Assistant United States Attorney On behalf of plaintiff
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