United States v. James D. Soderna

plaintiffs claim federal of unconstitutional America, barred commencement foreclosure action UNITED STATES of Rooker-Feldman). plaintiffs this Plaintiff-Appellee, attempting

case are to do what did not we plaintiffs allow the and GASH to do: Wright challenge judgment a state court SODERNA, al., James D. et property their real federal court. district Defendants-Appellants. 95-1309, 95-1333, Nos. plaintiffs contend that while 95-1488 and 95-1494. request injunctive

their have relief Rooker-Feldman, been barred their dam Appeals, United States Court ages They legal provide claim was not. no Seventh Circuit. authority argument. previ for this We have Argued ously applied damages Feb. 1996. Rooker-Feldman to claims in similar cases. The fact April 30, Decided Wright seeking only (twenty damages was worth) prevent million did dollars us denying jurisdiction. Wright, 39 F.3d cases, money

at 156. And in other where

damages sought separate along were with relief,

equitable applied we have Rooker- equally.

Feldman to all the claims See Lan Seed, injunc (damages

ders 15 F.3d (dam Levin, sought);

tive relief 74 F.3d 763

ages along declaratory injunctive Levin, sought).

relief we noted

plaintiffs request damages “merely way disciplinary’ pro

another to contest his

ceedings and the Illinois Court’s

decision to him.” Id. at n. 4. disbar plaintiffs

While now maintain that seeking only damages, not af

fect our conclusion that the Rooker-Feldman jurisdiction

doctrine bars over case. reasons, foregoing

For the district

court’s plaintiffs’ dismissal of the claim finding

should have based on a of no been jurisdiction

federal under the Rooker-Feld-

man district doctrine. The court’s

is therefore to make modified the dismissal jurisdictional, complaint solely and as

so modified is Affirmed. League,

Action Nat. Center for the Pro Majority, Organization Choice Nat. for Wom en, Inc., Center, Nat. Women’s Law Wiscon Network, sin Pro Women’s Women’s Law ject, Legal Women’s Defense Fund. Jacobs, Matthew L. Office of the At- U.S. Milwaukee, WI, torney, Dunsay Jessica Sil- ver, Justice, (argued), Dept, Eileen Penner Div., Section, Rights Appellate Civil Wash- DC, Forder, ington, Dept, Kevin A Justice, Div., Section, Rights Civil Criminal DC, Washington, for U.S. Nos. 95-1430 and 95-1488. Canton, MI, Suhy, pro

Michael Charles se. Soldotna, AK, Wright (argued), Rene L. Marilyn R. Hatch. POSNER, Judge, Before Chief KANNE, Judges. FLAUM and Circuit POSNER, Judge. Chief appeal The defendants from their convic violating tions for the Freedom of Access to Clinic Entrances Act of 18 U.S.C. raising variety of constitutional Act, questions. already has sur challenges vived similar constitutional circuits, three other United States v. Din (8th widdie, Cir.1996); 76 F.3d 913 Jacobs, Matthew L. of the At- Office Cheffer Reno, (11th Cir.1995); 55 F.3d 1517 Ameri torney, Milwaukee, WI, Dunsay Jessica Sil- Reno, League, can Inc. v. 47 F.3d 642 ver, (argued), Justice, Dept, Eileen Penner Life (4th Cir.1995), passed wake Div., Section, Rights Appellate Civil Wash- continuing against, violence and other forc DC, ington, for U.S. in Nos. 95-1309 and 95- with, clinics, ible interference abortion their staffs, and their clientele radical elements (ar- Eugene Pigatti, Hayes R. Fiorenza & Murder, of the anti-abortion movement. ar gued), Milwaukee, WI, for James D. Soder- son, kidnappings, bombings and bomb na, Hudson, Suhy, Colin L. Michael Charles threats, assaults, threats, trespasses, death Dale R. Pultz. vandalism, attacks, gas military-style as Connell, K. Colleen James A. Huttenhow- saults, and blockades of entrances to clin er, ACLU, Roger Baldwin Foundation of violence, ics—a concerted nationwide wave of Inc., IL, Chicago, for American Civil Liber- intimidation, obstruction that had over Illinois, ties Union of American Civil Liber- whelmed local authorities some areas Foundation, tiés Union American Civil Liber- and that local in other authorities areas were ties Union of Wisconsin. unwilling impelled to take action — Ellis, City, passage strong Deborah A New York Priscilla bipartisan of the Act with Smith, See, Reproductive support. e.g., S.Rep. Center for Law & Poli No. 103d cy, City, College Cong., Although New York for American 1st Sess. as its title dGynecologists, implies primarily Obstetricians an Feminist the Act is concerned with Foundation, clinics, Majority protection Nat. Abortion Federa of abortion the drafters tion, Reproductive Rights liability Nat. Abortion and cast the net of wider. The Act for- incident, videotapes or threats of force or of the which are a the use of force bids record.) injure, deliberately part physical dining obstruction But much of the intimidate, people seeking period or interfere with department which the fire wás any reproductive provide entrances, or to med- working to obtain to clear the the members services, just or other health not abor- ical of the clime’s staff could not enter the clinic exercise, tion, seeking people and also patients appointments to have abor- religious rights in a church or other house of procedures tions or other or consultations 248(a). worship. 18 U.S.C. Substantial could be served. criminal well as civil are autho- defendants, all of whom had been Act; but where the rized violations states, arrested for similar conduct in other exclusively a nonviolent “involv[es] violation (their convicted after trial were a bench de obstruction, physical the fine shall be not refused) by jury having mand for trial been length impris- and the of more than physical of obstruction of the staff and clien months, onment shall be not more than six or tele of the clinic. As first offenders under 248(b). both, for the first offense.” the Freedom of Access to Clinic Entrances statutory “physical term obstruction” is de- obstruction, only Act convicted of nonviolent “rendering impassable ingress fined as to or the defendants received sentences egress facility provides reproduc- that from a ranging days from 30 to 6 months and fines place or to or from a of tive health services $3,500. ranging from to $500 worship, rendering passage religious or to or argue The defendants that the Act facility place religious or of from such grant authority exceeds the unreasonably Constitution’s worship difficult or hazardous.” 248(e)(4). Congress regulate to interstate commerce. rejected argument the We Early morning one the six defen- (7th Cir.1995). Wilson, 73 F.3d 675 A (one of whom dants our ease has aban- number of abortion clinics draw both staff appeal) doned his blockaded the two en- (the patients and from across state lines clin to an abortion clinic in trances Milwaukee. Illinois, though ic doctor in this case lives in Four of the defendants blocked one entrance Wisconsin) purchase many the clime is in and automobile, with a combination of a disabled supplies of their medical and other in inter steel, large drum filled with concrete and commerce, 31; S.Rep. supra, state No. placed and their automobile bodies. The was movement, through and the anti-abortion tac directly on the sidewalk in front of the re- Act, prohibited by tics such as those has entrance; drum, cessed alcove of the two curtailing succeeded in the number and activ defendants, occupied and a child ities of abortion climes. this is a statute So alcove itself. Two other defendants sat on really significant does seek to remove ground extending up- with their bodies sense, obstruction, in to the rather literal through into the ear holes cut in the persons goods free movement of and across floor, being car’s their bodies attached to the Motel, state lines. Heart Atlanta Inc. v. handcuffs, welding, car and other means. States, United 379 U.S. had The doors of the ear been welded shut (1964); McClung, L.Ed.2d 258 Katzenbach v. leaking gasoline. and the car was The re- 379 U.S. 13 L.Ed.2d 290 maining similarly defendants were two fas- boycott single ophthalmo wagon blocking tened to a station that was Health, logical surgeon was held in Summit the other entrance to the clinic. It took the Pinhas, 322, 329-30, Ltd. v. department fire several hours take the 1842, 1846-47, (1991), apart, ears extricate the defendants from the pre power within the defendants, injuring cars without impact potential vent because of the on the clear the entrances. The defendants offered resistance; violence; ophthalmological market for services Los no there was no there violence, Angeles. emphasized The Court displays were no threats of or even anger, particular con part on the of the defendants or test was the effect alleged, supporters, picketing who were duct but that effect cumulated over (All subject vicinity. things apparent all conduct Id. at these statute. 1847-48; singling that the out of clin- see also Ham rather abortion Transmissions, Inc., protection against 33 F.3d violence and ob- mes v. AAMCO ics for Cir.1994). (7th struction, The market in re punishes the fact that the Act large interference, intimidation, obstruction, nation productive health services is as “ Angeles ophthal- market in wide as the Los only when it done because that so forth services; mological is as much or more with, person person intimi- [the interfered move been, interstate market because of interstate dated, is or or in etc.] order staff, patients, supplies; ment of and is person any person intimidate such or other likely disrupted by to be from, persons obtaining kind class of activity in which the defendants this case providing” an abortion or some other service Angeles engaged as the Los market relating pregnancy reproductive or the U.S.C; ophthalmological likely to be services was 248(a)(1) system, (emphasis disrupted by antitrust violations with added), show that the Act’s real aim and hospital the defendant chain was likely expression effect are to deter the of a charged. view, point namely opposition particular protected The fact abortion. The fact that the motive for the during passage class broadened Act Freedom of Access to Clinic Entrances through Congress to include all the bill gross prod was not to increase the national repro- medical and health services related to trade, by removing a to free but uct barrier (not abortion), just plus places duction safety protect personal proper rather to is, view, worship, in the defendants’ a trans- ty rights, is irrelevant. Heart Atlanta parent ignoble figleaf. is, The statute Motel, States, supra, Inc. v. United 379 U.S. claim, “obviously” they aimed at the anti- 256-57, 85 S.Ct. at can 356-58.. abortion movement. regulate any lawful interstate commerce for Ames, See, e.g., Champion motive. v. 188 It not at all the clear that statute is 321, 356-63, 321, 327-30, 47 U.S. 23 S.Ct. at the anti-abortion movement. We “aimed” (1903) (interstate transportation L.Ed. 492 lightly .impugn not the motives of should Pa., tickets); lottery Pic-A-State Inc. v. legislators. opponents of Some staunch Cir.1996) Reno, (3d 1294, 76 F.3d 1300-03 abortion, Danforth, such as Senator were (same); States, 308, Hoke v. United 227 U.S. eloquent support of the bill. See 139 (1913) (interstate 281, 33 57 L.Ed. 523 1993). 16, Cong. (daily Rec. S15680 ed. Nov. transportation prostitutes); Brooks v. possible oppose yet It to abortion also States, 432, 345, United 267 U.S. 45 S.Ct. 69 (and oppose counterproductive) consider not (1925) (interstate transportation L.Ed. 699 of only the murder of abortion doctors but also cars). stolen blockading of the entrances to abortion clin- Coffey, argue by Judge

But the ics tactics defendants also described dissenting factually the Act violates the First Amendment. identical case of Wilson, They point they supra, out that blockaded the clin United States v. as “distaste- (the express opposition ic in order to ful or 73 F.3d at worse.” 689. With matters sincerity question) nothing of which not we have to do. If taste taste were abortion, injure public protected speech, did not or threat a criterion of debate injure anybody, en and that the First in the United States would be stilled. The protects Amendment nonverbal as well as of Access to Entrances Act is Freedom Clinic expressive activity protects, marketplace verbal for ex not about bad taste — about, ample, Judge burning flag. opinions. ideas and It is American Johnson, words, 397, Coffey’s merely Texas v. 491 109 what U.S. is “worse” 2533, “distasteful”; that, (1989); 105 L.Ed.2d 342 States it is about conduct rather United Eichman, 2404, being purely symbolic, flag-burning, v. 496 U.S. 110 S.Ct. like (1990). Johnson, They supra, wearing 110 ques L.Ed.2d 287 do not Texas v. or a black armband, government prevent Independent tion the Tinker v. Moines Des District, physical buildings Community obstruction of access to as School (1969), has, prevent They argue well as to violence. like assassination, step, H. tection picketer cf. Laurence to the next where the political Tribe, physically impedes 828 n. entry picketed American Constitutional Law (2d ed.1988), Johnson, physical consequences premises. E.g., Cameron v. symbolic significance. 611, 616-17, independent are U.S. 88 S.Ct. (1968); Louisiana, L.Ed.2d 182 Cox v. expression,” we forms of “[S]ome 536, 553-55, 453, 463-65, U.S.- burning involving in a “cross used

wrote case group L.Ed.2d 471 of demonstra “A intimidate,” damaging to “are harmful and could not upon tors insist to cordon and, such, enjoy protect others do not street, public private off a or entrance to a or speech in constitutional ing cover of building, pass and allow no one who did Hayward, 6 F.3d sense.” United States agree not to listen to their exhortations.” Id. (7th Cir.1993). 1241, 1250 The behavior of power 85 S.Ct. at 465. “The and the present the defendants case drama duty adequate to take steps State abortion; opposition it tized their preserve peace protect and to priva physically But expressive. it also made lives, cy, property and the of its residents difficult) (or unreasonably impossible at least Alabama, cannot be doubted.” Thornhill v. patients for staff and to enter the clinic. To supra, 310 60 S.Ct. at 745-46 importantly persuade and to blockade added). (emphasis “We thus need not toler action, though forms of both are different solely ate coercive or obstructionist conduct mind, operates just expressive. One on the passionate because it ideology serves some body Burning the other on the as well. Schenck, interest.” Pro-Choice Network v. flag bought paid for that one has (2d Cir.1995) (en banc) 67 F.3d prevent anybody doing anything; it (concurring opinion joined by majority of the anyone’s personal does not interfere with — judges), granted, -, cert. liberty property rights. Blockading (1996). S.Ct. 134 L.Ed.2d 209 When your building entrance to a not own does “specific targeted individuals are at locations both, just killing political opponent in as avoid, difficult or inconvenient for them to liberty personal of at the same vades First plausibly Amendment’s tolerance of statement, political it time that makes protest coercive or obstructionist is least.” killing the case of John Wilkes Booth’s of Id. at 398. Here the defendants went be Lincoln. Abraham The distinction is en yond protest property rights. invaded graved interpreting in the case law the First physical “[A] Amendment. assault is not difference between communica imagination expressive stretch of the expressed by tion and obstruction was well protected by conduct the First Amend one of the defendants in this case when he ment_ types po ‘[Violence or other did, judge, told the ‘What we we weren’t tentially expressive produce activities that protest to I there abortion. If wanted to special harms distinct from their communica abortion, my I protest would write Senator impact tive ... are entitled to no constitu my Congressman. or We were there to save Mitchell, protection.’” tional v. Wisconsin innocent human life.” The Ac Freedom of 484-85, 508 113 U.S. S.Ct. to cess Clinic Entrances Act does not close (1993), quoting 436 v. L.Ed.2d Roberts protest the channels of to life 609, 628, 104 Jaycees, United States 468 U.S. movement. (1984). 3244, 3255, 82 S.Ct. L.Ed.2d 462 government distinguishes arbitrarily If the conduct, among expressive First forbids the classes of Amendment (we “will,” peaceful nontrespassory say not states outlaw be found do because we do issue) picketing, flag-burning interfering not like does not have decide the deprive people picketers impermissibly marketplace whom the are with the in ideas with, If, influence, quarreling trying opinions. example, or the Freedom personal liberty property rights. or of Access to Clinic Entrances Act made it a Alabama, 88, 98-101, felony employee Thornhill v. of an assault the abortion (1940). 736, 742-14, only 84 L.Ed. 1093 clinic but a misdemeanor assault the pro employee pregnancy urges But the amendment does not extend its of a clinic that its 2523-24, U.S.-,-, carry put clientele to the fetus to term and S.Ct. (1994). baby than to have adoption rather L.Ed.2d 593 abortion, argued that the Act it could be token, By authority the same violated the First Amendment. Whether the dangerous government to criminalize or de light argument is uncertain in would succeed structive conduct is not diminished Mitchell, v. su of cases such as Wisconsin people fact that most or even all of the who 2200-01; 485-89, 113 pra, 508 S.Ct. engage particular sought conduct to be O’Brien, v. 391 U.S. political criminalized do so for reasons. Id. (1968), and R.A.V. S.Ct. 20 L.Ed.2d 672 at-, Suppose at 2523. that the S.Ct. Paul, 377, 112 City v. 505 U.S. St. only people in the United States who bombed the last laboratories in which animal research is con cases, these the Court said that “where the ducted were members of the Anti-Vivisection target government does not conduct on the League, bombing which had decided that content, acts expressive basis of its only way these is the effective laboratories regulation merely shielded from because spreading message. its the fact that Would discriminatory express [or otherwise disfa only violence effective means of con philosophy.” idea or Id. at vored] veying League’s message preclude Con at 2546-47. The “ordinance struck gress passing against a law explicitly directed at bomb down R.A.V. was [namely expression speech] ing persons seeking hate ... of laboratories [where aimed, not, impede the statute in this case is at con as] research on animals? think We unprotected by duct though the First Amendment.” even the law would interfere with the Mitchell, supra, v. Wisconsin marketplace opinions by in ideas and dimin (on at 2201. Those words ishing, extinguishing hypotheti our even spoken present could have been case. assumptions), League’s cal voice. If, hypothetical in our case of differ majority The vast of the millions of Ameri- punishment ential for assaults em oppose cans who abortion would like to versus, ployees of climes down, abortion climes see restored the state laws struck promote adoption as an to abor alternative following Roe Wade and the cases it do not tion, the for the difference was that basis illegal utilize violence blockades other against employees there was more violence disrespectful personal liberty tactics against employees abortion clinics than of property rights message. to disseminate their clinics, might pregnancy difference be The Freedom of Access to Clinic Entrances by lawful. But this we need not decide. For silencing Act will therefore not have the ef- caution, broadening, out of an abundance of fect on the anti-abortion movement that our activity repro protected from abortion to hypothetical bombing law would have on the services, ductive health the drafters finessed hypothetical League, Anti-Vivisection a si- particular type challenge. It is true not, lencing effect that would nonetheless being mainly against that Act enforced said, Indeed, we have invalidate such law. opponents But of abortion. this is because many right since adherents of the to life mainly they interfering who are with the that movement believe the movement services, provision pregnancy-related just helped by harmed rather or violent protesters as it was War Vietnam who tactics, confrontational the Act assist cards. burned their draft impede rather than the movement’s efforts to O’Brien, supra. prosecution Selective on in persuade open persuasion those on the see, grounds, e.g., Wayte vidious v. United issue. States, 470 105 U.S. S.Ct. (1985); Unless —to come to the second half Kerley, L.Ed.2d 547 United States v. (7th Cir.1986), of the First Amendment chal alleged. defendants’ 787 F.2d is not lenge vague Act is so that it group A obtain constitutional immuni will deter cannot —the entirely peaceable ty prosecution by violating protest abortion. from a statute statutory frequently group. more other The defendants focus on the defini —Inc., Center, including of “physical Madsen v. Women’s Health tion obstruction” as if “rendering to or from abortion even the unavoidable passage [an the defi- fuzziness facility] unreasonably difficult nition possibility clinic or other creates theoretical of de- They express concern or hazardous.” terring expressive activity. lawful The Su- occupying merely part who was someone preme Court has less doubt than we that clinic, or leading to an abortion the sidewalk “unreasonably obstruct” is clear trying to hand an antiabortion even someone muster, pass having constitutional remarked people going coming to and leaflet to Johnson, supra, in Cameron v. U.S. clinic, thought making might be to be that the word “unrea- passage “unreasonably difficult.” But when sonably” widely “is used and well under- pressed argument suggestions for as to clearly juxtaposed stood word and so when ” clearer, how to make the statute the defen- with ‘obstruct’ and ‘interfere.’ nothing dants’ counsel could come The last and most substantial issue (1) eliminating better than the criminal reme- right raised the defendants concerns the (2) dies, limiting the statute to obstructions by jury, of trial secured (3) both Article III entrances,” “in of clinic or forbid- front original section Constitution and the yards” ding obstruction “within 100 Amendment, Sixth in all federal criminal assumes, suggestion entrance. The first prosecutions. We state the issue as one of believe, the statute what we do constitutional statutory law rather than of precise enough permit cannot made be interpretation pointed because we have been punishments imposition of criminal for its nothing history suggestion text of the Free vague violation. The second is as dom of.Access Clinic Entrances Act that as the current statute. The third is underin- elusive, suggests that depending design since on the drafters intended defen right dants to have a to a might location of a clinic a total blockade trial and yards. argue possible at a distance than 100 because defendants do not that the by statutory can be derived as distinct precision There are limits to the of lan- interpretation. from constitutional guage. forbidding complete Confined (and blockage of clinic entrances thus dis- Despite uncompromising language pensing “unreasonably lan- with the difficult” Constitution, the Supreme Court has guage, alleged vagueness), the source of the held, eighteenth century consistent with evaded, easily example Act would be practice, the constitutional just leaving enough space blockaders’ be- jury trial in federal criminal cases does not person squeeze tween two of them for prosecutions E.g., cover offenses. through, touching the blockaders on either Wilson, 540, 552-53, Callan v. (thus committing battery side a technical 1301, 1304-06, (1888); 32 L.Ed. 223 them, upon though probably privileged 454, 475-76, Hoffman, 422 Muniz v. one); by lying down across the entrance Be step jump?— so that the entrant has to —or argument excep sides the historical for this over the blockader. And what of cases tion, the social interest in effective law en (but only one entrance of several that outweigh forcement has been deemed to the one) blocked, main is in which all or lay interposing jury citizen’s interest in a persons entrances are blocked but could easi- persons between the state and himself when ly through ground windows on the enter penalty that he faces is mild. The bur floor, strong enough or which the roof is jury petty providing den of trials for all helicopter imag- land a on? It is difficult to thought disproportionate offenses been perspicuous a form ine of words more protec to the citizen’s need for the additional “unreasonably encompass difficult” to these power tion of the state that a myriad possibilities and the of other that give City him. v. would Blanton govern- come to mind. If as we believe 538, 543, 109 Vegas, North Las 489 U.S. prohibit ment is allowed to the obstruction of 1289, 1293, 103L.Ed.2d 550 clinics, access to abortion it must be allowed original might to define “obstruction” with sufficient As an matter we effective, by prohibition question punishable breadth to make whether an offense prison plus to six months in a fine time blockade of an abortion clinic a serious properly “petty,” as at least in described offense. inflation since When Blanton was evidence, (modest been) the absence of historical not cited though decided it has is taken us, comparable punishments that were along into account with the absence of routinely eighteenth administered in the cen- counterpart suspension here to the of a driv- tury jury. without a But we do not on write license, er’s unclear whether the maxi- Court, Supreme a clean slate. The troubled mum criminal for the relevant of- by difficulty reasoning .way by one’s (nonviolent by in this fense ease obstruction by methods line used courts be- offender) significantly first more severe serious, petty tween has made clear in Blanton. those opinions that brace recent unanimous Supreme Court’s next and latest ex prison where the maximum term is six pression meaning on the views going months there is almost never to be a purposes offense” for of the constitutional constitutional to trial even if to trial in criminal cases came supplementary fines or other sanctions in- 1, 113 Nachtigal, severity punishment crease the net well (1993) (per cu beyond standing by prison that of the term riam). regulation punished A driving federal City Vegas, itself. Blanton v. North Las park in a national supra, punished under influence of involved a state statute that alcohol driving imprison with a maximum term of under the influence of alcohol. The punishment ment of six and a maximum statute authorized a maximum months fine of $5,000, imprison- for first offenders of six months’ five times the maximum fine in Blan plus plus driving ment a fine of loss of ton. Nevertheless the Court said privileges days plus mandatory for 90 “quite obviously attend- that the case was controlled” ance at an at alcohol abuse center the defen- Blanton. 507 U.S. at expense. dant’s held that significance 1073. The Court no attached petty fine, statute created a offense within the higher merely remarking that “this meaning of the Constitution. The Court said monetary penalty approximate ‘cannot in se “primary emphasis placed that ... must be verity liberty prison the loss of that a term ” period on the maximum of incarceration. 4, 113 (quoting entails.’ Id. at S.Ct. at 1074 probation Penalties such ... fine Blanton, 109 S.Ct. at 1292- approximate severity cannot the loss of 93). noteworthy regulation It Indeed, liberty prison that a term entails. authorized, imprison as an alternative to ‘intrinsically because incarceration is an dif- ment, probation years. a term of of five This punishment, ferent’ form of ... it is the most bite, probation with a rather mouth powerful indicator whether an offense is ‘ser- judge ful of bites. The was authorized to ious.’” Id. at 1292-93 impose 21 conditions on a convicted defen (citation omitted). imposes A statute that probation, including dant sentenced re maximum imprisonment sentence of of six quiring community him to live in a correc offense, presumed months is to create a facility tional for the entire term. All this is statutory penalties carry and additional will opinion, set forth in the Court’s 507 U.S. at if, only the statute over the line in combina- *, 113 S.Ct. at 1074 and n. but did not move term, tion with the maximum reclassify the Court to the offense from severe, they clearly “are so reflect a being required to serious. Yet live determination the offense facility years plus having correctional for five question ais ‘serious’ one.” Id. at pay to a fine of combination of —a S.Ct. at 1293. expressly by regula sanctions authorized upheld Nachtigal tion paid If more severe careful attention is to the word —is punishment imprisonment “clearly” than six passage quoted, in the last that we $10,000. plus apparent though it is months a fine of So confident that even the maximum higher punishment fine was that present in the case than it the Court autho higher by Nachtigal Blanton it is not so much as to rized the statute involved did make Congress clear that considered a first- not cross the to line serious that unanimously appeals the defendant and are it reversed the court available calling for papers, without on the certiorari prosecuted whether or not the defendant is hearing argument. oral briefs They might for a criminal violation. as well a different statute. And insofar as point Congress out The defendants that (as damages traditionally “legal” or other offense,” “petty the term as used has defined Code, equitable) sought distinct from in Title 18 of the United States remedies are case, mean, might hear on this Act, so far as proceeding in a under the the defen- fine, in which the maximum offense for dants are entitled the Seventh Amend- defendant, not case of an individual by jury. prose- ment to trial A misdemeanor id., 19; $5,000. § see exceed 18 U.S.C. offense, cution for a traffic which no one 3571(b)(6). Supreme § Court held in suppose would entitled the defendant to a Hoffman, supra, Muniz jury, might prelude wrongful- be the 2190-91, however, that the statu- against him seeking death suit millions of tory does not determine definition whether compensatory punitive dollars in and dam- petty in an offense is the constitutional sense. ages. prospect sequel Yet the of such a case, not to entitle the The fine held would not entitle him to a in his traffic trial, exceeded the then defendant to ease. for a Title 18 offense” maximum fine here, twenty $10,000, but a factor grounds — appeal The other —that twenty years ago, lot more versus worth a Freedom of Access Clinic Entrances Act more, § 18 U.S.C. 19 allows a What $500. equal protection violates the clause of the $10,000 if petty offender to be fined the Fourteenth Amendment and that defendant organization than an offender is an rather (a blocking Hatch was not in fact an entrance id., 19; see individual. 18 U.S.C. was) videotape plainly shows she with- —are 3571(c)(6). that the It is hard believe out merit. in resources between individuals difference organizations signifi- constitutional briefly. We can summarize The defen- cance, many when we reflect that individuals dants violated a statute that is within the money many organizations. have more grant legislative power Congress I commerce clause Article of the Constitu- We do not want to be understood as hold- regulates adequate tion. And because it ing punishments that criminal other than for- clarity precision injurious mal incarceration can move an offense conduct that is never category. symbolic, from the to the serious If purely not the statute does not the fine for a first-time nonviolent obstruc- infringe the First Amendment. The defen- facility a clinic tion of or other covered dants were not entitled to have a consid- Act Access Clinic Entrances them, Freedom charges against er the because their million, it were would be hard to resist the $1 “petty” in offense was the sense inference that the offense was serious rather given Supreme Court has the word and was petty. We need not decide in this case beyond scope therefore of the constitu- where million between the line $1 guaranty by jury trial tional federal that, light It should be drawn. crimes. Whether statute was neces- Nachtigal, of Blanton reasoning sary police or a wise exertion of the federal $10,000. cannot be drawn at If we have power, help whether it will harm or decisions, misunderstood those abortion, opponents and whether straighten us out. Court knows how persons prosecuted should have entitled all The defendants remind us that the Free- by jury it to trial under issues dom of Access to Clinic Entrances Act cre- judiciary have been confided to the for reso- ates civil as well as criminal remedies. 18 And, say, we are not lution. needless 248(c). not, The civil remedies are authorized to reconsider the of abortion however, part punishment. of the criminal target that is the of these defendants. They imposed proceedings separate in proceedings brought criminal AFFIRMED. 1380 ”

KANNE, misperceptions respect.’ in this Blan Judge, concurring part in Circuit 538, City Vegas, ton v. North Las 489 U.S. dissenting part. and of S.Ct, 42, 109 1289, 1292, 103L.Ed.2d 550 541— Today, this court decides that the Free- (1989) (quoting Landry Hoepfner, F.2d v. 840 Act of to Clinic Entrances dom Access (5th Cir.1988) (en banc)). 1201, 1209 not violate the First Amendment —a deci- enacting legislature’s Uncovering judg majority with which I concur. The sion a ment of a crime’s seriousness entails two- on, however, first continues to hold First, step interpretive process. the Court exclusively involving violation of the Act statutorily prescribed looks to the crime’s physical un- nonviolent obstruction —which because, in penalty maximum authorized en 248(b) by up punishable 18 der U.S.C. legislature acting penalty, the maximum “the prison to both six months included within the definition of the crime, meaning “petty” fine —is judgment about the seriousness crime itself a charged with such a violation defendants States, the offense.”1 Frank v. United of have no constitutional to a trial 147, 149, 1503, 1505, 395 U.S. 89 S.Ct. 23 holding jury. Because I believe (1969) (citing Duncan v. L.Ed.2d 162 Louisi Supreme prece- relevant Court misconstrues ana, 35, 1444, 145, 391 162 n. 88 U.S. S.Ct. objective disregards evidence of dent (1968)). 35, Second, n. 491 1454 20 L.Ed.2d intent, I Congress’s express from it must particular the Court examines whether that respectfully dissent. penalty maximum indicates a de pettiness or of termination of one serious I determining length “In ness. whether the long It has been well established Su- the authorized term or the seriousness preme Court case law that the constitutional punishment other itself by jury a trial does not extend trial,” require compares the Court Wilson, petty offenses. See Callan v. 127 “objective criteria, penalty against chiefly the 540, 1307, 557, 1301, 32 L.Ed. U.S. 8 S.Ct. existing practices in laws and the Nation.” (1888); Louisiana, 223 Natal v. 139 U.S. Duncan, 391 U.S. at 88 S.Ct. at 1453. (1891). 636, 637, 11 S.Ct. 35 L.Ed. 288 Thus, Supreme in case after case the Court Court, According to the what offenses are has determined the seriousness of an offense subjectively should be determined “not by considering pen its maximum authorized judge sympa- to his recourse own alty statutory light Congress’s definition emotions, objective thy but standards (and offense” in 18 U.S.C. its may such as be observed the laws and 1), predecessor, 18 see Cheff practices community gauge taken as 373, 379-80, Schnackenberg, 384 U.S. judgments.” of its social and ethical District 1523, 1526, .(1966); S.Ct. 16 L.Ed.2d 629 Clawans, 617, 628, Columbia v. 300 U.S. Duncan, 161-62, at at U.S. 88 S.Ct. (1937). 660, 663, 57 S.Ct. 81 L.Ed. 843 Frank, 1453-54; 150-52, 395 U.S. at 89 S.Ct. end, To this has consis- 1506-07; York, at Baldwin v. New 399 U.S. tently legisla- 1886, 1889, looked to the state and federal 70-71, 90 guidance (1970); Blanton, tures for as to crimes should at U.S.

be considered and which should be light as well as prevailing practice among fifty considered serious. The Court instructs that states judiciary its concerning imposed “[t]he should not substitute what Duncan, trial, judgment juty as to seriousness for that of a absent a see 33; legislature, equipped ‘far better 161 & n. 88 S.Ct. 1454 & n. which is at. Baldwin, task, perform the likewise more re- 399 U.S. at 71-72 & n. [is] Blanton, 18; sponsive changes in attitude and more at 1889-90 & n. 45, 109 recognition

amenable to the and correction of S.Ct. at 1294. 544— actually legislature penalty imposed best evidence of 1. Note that "when has not ex- as the pressed to the seriousness of an the seriousness of the offense.” Bloom v. Illi nois, as 1477, 1487, (such by fixing penalty” offense a maximum contempt), “look[s] the Court L.Ed.2d 522 criminal penalty statutory “petty imprison- definition of ble exceeds six months’ Congress’s § 73-74, 19 includes crimes Id. at offense” in 18 U.S.C. all ment.” 90 S.Ct. at 1890-91. than months in punishable no more six hand, question On the other the of at what $6,000 greater for prison, by a fine not than point penalty imprisonment other $10,000 organization, or for an individual (such probation) as a fine or term rises to Many states have or both.2 conformed impli- level of seriousness to necessary granting jury trials in criminal practices of right jury cate the to a trial remains unan- benchmark, cases to the federal while some Supreme swered. The Court indicated standards, has generous in- have more enacted that, despite potential imprison- a maximum right by jury cluding extending the to trial months, any imprisonment term of ment of no more than six such other all crimes where may imposed.3 penalties be could render a crime serious Blanton, trial. See jury to warrant a legislative pro By comparison to these at 1293. But nouncements, Supreme Court has held because the Court has never been confronted punishable by more than six that a crime with a case where it has considered the always pur serious for months potential penalties crime’s other to be suffi- right jury to a poses of the constitutional serious, ciently line has never been Baldwin, the. trial. Nevertheless, given drawn. we some cannot ... conclude that ... 1889-91. “We because, below, guidance as discussed conveniences, light administrative Supreme cases wherein the has four Court practices every now exist one courts, addressed the fifty seriousness other States as well as in the federal imprisonment justify denying can ... an accused the im have —like the cases con- portant right by jury possi- sidering imprisonment trial where the terms of —looked 1984, Congress “petty Today, 2. Until defined offense” in the ABAadvocates a much more lenient misdemeanor, "[a]ny penal- § "Jury 18 U.S.C. 1 as standard: should be to a trial available ty imprisonment state, for which does not exceed for a party, including prosecu- in criminal period of six months or a fine of not more than jail prison may tions in which confinement in or $500, Today, or both....” U.S.C. de- imposed.” be ABA Standards Criminal Jus- for misdemeanor, fines offense" as "a Class B Discovery by Jury, tice and Trial Standard 15-1.1 misdemeanor, infraction, a Class C -or an for trial), (3d ed.1996). (Right jury at 121 which the maximum fine is no than the commentary to this standard notes: forth amount set for such an offense in section vary providing right The states a state (7) 3571(b)(6) or of an individual or case cases, jury trial in criminal whether the 3571(c)(6) (7) organi- section in the case of an statutory. Many constitutional or states follow together zation.” Read with 18 U.S.C. by refusing by jury rule trial federal 3559(a)(7)-(9), 3571(b)(6)-(7), (c)(6)-(7), §§ charged defendant with those minor crimes any definition translates into offense for which ‘petty or ‘in- defined in state as offenses' penalty the maximum does not exceed six states, following fractions.’ Other the earlier prison, months in a fine of for an individ- standards, provide for lead of the ABA trial organization, ual or for an or both. Iri jury potential all cases there is im- where incarceration, may lieu of offender be prisonment. Some states have constitutional five-year period proba- sentenced to tion, to a provisions nonjury trials of offenses in may subject discre- number of instance,' to de the first novo conditions, tionary and which if violated appeal. trial on resentencing. §§ result in full 18 U.S.C. (footnotes omitted). Id. at It is worth also 3561-66. noting that even in those states that follow the rule, many statutorily "petty federal define of Baldwin, in- referenced restrictively than fenses” or "infractions” more concerning prevailing jury formation trial See, 19.6, Congress. e.g.,- §§ Cal. Code practice among by citing survey the states Penal "infraction,” (no jury trial which is 19.8 Project the American Bar Ass'n on Standards for no defined as an offense for which there can be Justice, Advisory Criminal Committee on the imprisonment and for which the maximum fine Trial, by Jury (Approved Criminal Trial 20-23 $250); Colo. does not exceed 16-10- 1968). Stat. Draft 399 U.S. at 72 n. 90 S.Ct. at Rev. offense,” 109(1)-(2) (defining "petty for which project’s report 1890 n. 18. The concluded that pays there is no trial unless the defendant practices keeping most state were in with the fee, standard, penalty crime for which then-federal and recom- fine, prison, $500 upper " not both). six months mended that that standard "should be the exceed upon ‘petty limit offense.’ definition of Id. 1382 by jury. disagreed by and tied to a trial The Court judgments expressed the state

the concerning blindly legislatures apply congression- what is seri- the federal and refused petty. al definition to all circumstances because it ous and what plau- did not believe that the definition could States, v. Frank United In the defendant sibly suggest Congress’s judgment be read to contempt criminal had been convicted of serious, always that a fine over will be $500 three-year sentenced to a federal court and organiza- imposed upon large even when 148, probation. at 89 term of S.Ct. 477, tion. Id. at 95 at 2191. The Court S.Ct. prior at The Court first noted that 1504-05. explained grasp that not “[i]t is difficult Congress’s defini- upon decisions had relied proposition jail the that six months is a 1. Id. at “petty tion of offense” in 18 U.S.C. individual, matter for but it is not serious 3, 150 n. 89 at 1506 n. 3. It then S.Ct. argue possibility that the of a tenable $501 enacting probation that the stat- observed fine would be considered a serious risk to a ute, Congress possibility of had made the Id. large corporation union.” In or labor “any pun- probation applicable to offense conclusion, the Court further considered the i.e., imprisonment,” death or life ishable impact financial of the fine on the relative and serious offenses alike.4 Id. petty to both union: “This union ... collects dues “Therefore,” 150, at 1506. at 13,000 persons; although some the fine reasoned, penalty maximum au- “the insubstantial, magni- it is not of is not such simply petty thorized in offense cases is not deprived tude that the union was of whatever imprisonment and a fine. A six months’ $500 might right to trial it have under the probation placed offender be on Sixth Amendment.” Id. Id. years....” 89 five at 1506. The Court thus concluded: Thus, Supreme rely Court refused to “Petitioner’s sentence is within the limits of 1 Muniz only § in upon 18 because it U.S.C. congressional definition of offenses. represent did not believe the definition Accordingly, deny him it-was not error to legislative judgment ed a of seriousness with Id. 152, jury trial.” 89 at 1507. respect large organiza- fine on a levied Hoffman, defendant, Muniz v. Accordingly, tion. our sister circuits have the Muniz organization, interpreted holding union had been convicted of as limited ex- clusively imposed upon organizations, contempt pay criminal and sentenced to to fines 454, 457, consistently 422 95 and therefore have relied fine. upon congressional “petty At the definition of decided, Congress’s “petty time Muniz was considering offense” when the seriousness of placed 1 fines levied on individual defendants.5 The offense” definition 18 U.S.C. $500; however, circuits, majority, express- upper limit for fines at unlike these other (as incredulity did not 18 19 does es that the difference between an definition today) organization specifically address what fine level and an could be con- .individual organiza- Supra, stitutionally would considered serious for an relevant. at 1379. How- ever, Congress expressed tion opposed to an individual. The union its argued imposed pur- was what fine indicates seriousness for because the fine level $500, automatically poses it was enti- to a trial differs decided, McAlister, 772, (10th Cir.1980). probation 4. At the was 630 F.2d 774 time Frank governed by initially interpreted §§ 18 U.S.C. 3651-55. These stat- The Fifth as a Circuit Muniz subsequently' repealed, probation only utes were statement Court that im today §§ addressed at 18 U.S.C. 3561-66. prisonment important not a fine was determining pet whether a crime was serious or 1201, ty, Landry Hoepfner, see v. 840 F.2d Douglass Realty Corp., 5. See v. First National (5th Cir.1988); however, n. since Su (D.C.Cir.1976); F.2d v. Blanton, preme Court decided the Fifth Circuit Air, Org., 678 F.2d Controllers Professional Traffic congres (1st Cir.1982); has indicated that it would look to the 4-5 United States v. Troxler Co., Inc., “petty (4th sional definition of offense" in determin Hosiery F.2d n. 2 Cir.1982); Goins, ing heavy whether a fine evidenced a v. 575 F.2d 164-65 Girard Hamdan, (8th Cir.1978); determination of seriousness. See United States United States v. Time, (5th Cir.1994). (9th Cir.1977); F.2d 278-80 States v. 21 F.3d United when, virtually organizations implicate never be serious between individuals Supra, trial. amending the offense” 1377-78. definition However, majority pays higher no heed to the a much maximum enacted method which the unanimous Blanton organizations than for individuals fine for Court went on to determine $10,000, whether (interestingly enough, the amount $1,000 clearly Nevada law’s fine reflected a petty Supreme Court considered when legislative determination of seriousness. Muniz). in against organization levied an keeping long precedent, with its line of 1984, Criminal Fine Enforcement Act of See compared $1,000 against fine ob 8, 3134, 98-696, § No. 3138. Pub.L. Stat. jective practices criteria —the laws and history legislative From the of this enact- Nation-reasoning that possible “[a]s for the ment, apparent it is that the rationales of $1,000 fine, $5,000 it is well below level differing Congress for the fine levels be- by Congress set in its most recent definition organizations were tween individuals ‘petty’ a petitioners of offense ... do not .and First, Congress indicated its belief twofold. suggest congressional that figure is out organizations generally that re- have step practice with carry state for offenses Rep. H.R. 98- sources than individuals. No. ing prison sentences’ of six months or less.” 906, 15-16, (1984), Cong., 98th 2d Sess. 544-45, 109 1293-94, Id. at S.Ct. at 109 S.Ct. 5433, reprinted at 1984 U.S.C.C.AN. 5447- noted, at 1294. As the Court “[w]e have 48, Secondly, importantly, and most frequently looked to the federal classification Congress organi- explained that because an determining scheme in when a trial imprisoned zation cannot be in addition provided,” must be and “we looked to [have] can, higher a an a paying fine as individual decisions, practice past state in our ... chief organization must levied in fine be ly to determine whether there was a nation severity order to attain the same level of potential wide consensus on the im term of presented by imprisonment a combination of prisonment triggered or amount of fine that imposed upon a and lower fine an individual. trial_” a Id. at 545 n. 109 S.Ct. Id, at 1294 n. 109 S.Ct. 1294 n. City Vegas, In Blanton v. Las Su- Thus, 103 L.Ed.2d 559. Blanton reit- preme of a Court considered the seriousness erates that congression- we are to look to the law, driving Nevada drunk under which a offense,” al “petty definition of as well as to possibility up defendant faced a to six prevailing practice legisla- of the state (or prison alternatively, forty-eight in months concerning tures what correlate community wearing clothing hours of service seriousness, evaluating whether a offender), identifying him as a DUI á fine of particular clearly fine a evinces $1,000, up to loss of his driver’s license determination of seriousness. ninety days, requirement a to attend an Lastly, Nachtigal, alcohol abuse education course at his own Court addressed the seriousness of 36 C.F.R. expense. 489 109-S.Ct. at 4.23(a)(1)-(2) (1992), §§ regulation a federal 1291. The that where an offense Court held prohibited operation of a motor vehicle punishable by than six no more months park in a national while under the influence prison, presumed petty. it is Id. at be alcohol. 507 U.S. However, 109 S.Ct. at 1293. a defen- 1072, 122 L.Ed.2d 374 The. offense presumption “if can dant rebut this he designated was B as class misdemeanor any statutory demonstrate that additional and, system under the federal classification penalties, conjunction viewed with the therefore, subject was to a maximum autho incarceration, period maximum authorized penalty rized both six months they clearly legis- are so severe that reflect a $5,000 (citing and a fine. Id. ques- lative determination that the offense (e)). 3581(b)(7), 3571(b)(6), §§ U.S.C. As an tion is a one.” Id. ‘serious’ imprisonment, sentencing alternative majority Blanton might impose proba invokes the Court’s court instead term (and language particularly, years, the word “clear- tion not to exceed five which could be ly”) support proposition subject discretionary its fine will number of condi- 3561(a)(3), clearly ex- especially §§ when (citing

tions. Id. $5,000 3563(b)). held, fine is (c)(2), pressed its that a Supreme Court $10,000 might fine is not. One offense per opinion, curiam that this a short question whether a fine is substan- purposes one, tially greater but 4, 113 than a at 1074. trial. Id. at explained drawing Supreme Court has However, only, described Nachtigal was petty and serious “cannot the line between Court, relatively application by the “a routine satisfactory, wholly requires ” for it attach- Al- in Blanton. Id. of the rule announced which, ing consequences to events different Nachtigal opinion never though the short line, actually differ when lie near the congressional defini- expressly refers to the Duncan, very little.” 391 U.S. at offense,” holding repre- its tion of why precisely This is the S.Ct. at 1453. merely straightforward application of sents a us to look to Supreme Court has instructed determining analysis in Blanton. the legislatures guidance drawing it. the $1,000 clearly a fine evidenced a' whether admittedly seriousness, Secondly, majority points to the the legislative determination strong language Nachtigal that a fine congressional Blanton Court the looked.to offense, approximate severity the loss of petty which includes “cannot of a definition misdemeanor, liberty prison Supra, term at B misde- that a entails.” “a Class a Class C meanor, (quoting Nachtigal, 507 at with a fine no or an infraction” 1074). blush, $5,000. language at At first this greater than 18 U.S.C. 19. The S.Ct. imply B to that a fine could never be Nachtigal was in fact a class seems offense misdemeanor, enough tip from to pen- serious to the scale and therefore its various fine) However, $5,000 language is a direct (prison probation, and a serious. alties Blanton, quote the in Blan- Congress’s judgment of Court squarely fell within Thus, heavy did not intend to hold that a fine petty. it is clear that the ton what Nachtigal enough implicate to the offense in could not be serious penalties attached to the 542-43, 109 a legislative judgment a to trial. did not manifest Rather, at 1292-93. the Blanton was able to render seriousness. The Court oral, argument indicated that a fine could in fact evidence a opinion without an briefs seriousness, was, reasoning Nachtigal determination of because under the Blanton, congressional to the easy it looked definition an case. determining “petty whether the offense” attempts more of majority The to make $1,000 544-45,109 fine at issue did so. Id. at First, majority it Nachtigal than is. average S.Ct. at 1294. The fact that no Nachtigal Court “attached notes how willingness pay stay defendant’s out of fine, $5,000 though significance” even extremely high does not mean that $1,000 fine in five times the maximum heavy fa a fine can never denote serious majority in- Swpra, at 1378. The Blanton. majority The itself admits that a offense. an terprets such nonchalance as indication potentially severity fine could be of such as being that a fine is not even close million), require (postulating trial $1 above, However, explained there serious. Supra, but it refuses to draw a line. at 1379. incongruity no the fact between however, instructed, Court has “relatively applica- Nachtigal routine was a judiciary should not substitute its “[t]he tion of the rule announced Blanton” judgment as to seriousness for that of a us is not. The the fact that the case before already legislature,” Congress indi today, penalties for the crime we consider judgment cated its as to where the line Nachtigal, fall unlike those in without by enacting 18 should be drawn U.S.C. congressional “petty offense.” definition of $5,000 fine, Thirdly, majority makes much of the mere fact that a which is And the $1,000 fine, petty in penalties is consid- that were considered much than a Nachtigal, maintaining that because those not necessitate the conclu- ered $10,000 fine, penalties ones we great- is much were more serious sion that a $5,000 fine, today, must find a nonviolent similarly treated— address we er than a precedent instructing of Access to violation of the Freedom us to look to first Supra, petty.- legislatures Act to be in determining partic- Entrances Clinic whether majority the fact focuses on ular penalty represents legisla- 1378-79. maximum imprisonment that as a substitute judgment tive of seriousness. could have been sentenced five

defendant sentencing years’ probation, which II subject might be to one or court’s discretion conditions set out at 18 more of several Relying Congress’s on definition of 3563(b), including having spend offense” penalties as an indication of what five-year period residing at probation equate particularly appro- seriousness is halfway majority house. The reasons that all, priate this case. First the defen- [community] “being required to live in a cor charged dants are with a federal crime. Giv- years facility plus having for five rectional en that authorized the maximum pay a fine of combination of sanc —a penalties for a nonviolent first violation of the expressly regulation tions authorized Act, expression Congress’s Nachtigal pun upheld in more severe —is concerning what are serious imprisonment for six months ishment extremely probative to warrant a trial is $10,000.” plus Supra, a fine of at 1379. Congress of whether believes that such a However, comparison faulty; it is rests nonviolent first violation is a serious crime. years’ proba upon assumption that five house) (even halfway in tion a is a more Additionally, legislative a review of the penalty prison than six months in severe history § attendant to 18 U.S.C. 19 makes —an rejected assumption completely that was statutory clear that the “petty definition of 4, Nachtigal, the Court in 507 U.S. at 113 is Congress’s offense” direct evidence of According Supreme S.Ct. at 1074. to the judgment that a nonviolent first violation of $5,000 Court, years’ probation and a five fine Act purposes is a serious crime for of the (found petty Nachtigal) penalty is a lesser First, jury constitutional to a right trial.. $5,000 prison than six months in and a fine legislative history Congress indicates that (also ). e Nachtigal petty found Id. Six Suprem aware of the historical Court’s (the $10,000 months in and a fine looking congressional practice of defi penalty maximum authorized we address to nition of in determining offense” day) greater penalty a is therefore penalty leg an offense’s whether indicates possible penalty of the combinations found islative determination of seriousness.6 Sec petty Nachtigal. ondly, legislative history that Con shows sum, gress § although

In 18 U.S.C. 19 for the sole Nachtigal the Court in enacted it, quick purpose judg expressing legislative made work of the facts before noth- its ing per opinion concerning in that curiam indicates the ment what indicate a (cid:127) trial,7 Supreme jury Court’s intention to discard decades crime to merit a serious 1987, 100-185, 4(a), Congress § § 6. When amended 18 U.S.C. 1 in Pub.L. No. 101 Stat. 1984, 1984, Congress similarly Criminal Fine Enforcement Act of noted: 8, States, 3138, explained: Supreme § In 98 Stat. at it Frank v. United Court right by jury that the constitutional to trial held is, law, right jury There as a matter of no to a apply petty does not offenses.... The Su- petty trial for a offense.... Since the Consti- preme Court has indicated that 18 U.S.C. 1 is a explicitly petly, tution does not define what is measure of the seriousness of an offense for the courts have had to look elsewhere deter- purposes right by jury. of the to trial punishment petty mine whether a ... Cong., Rep. 4- H.R. No. 100th 1st Sess. uniformity, objec- serious. In the interests of (1987), reprinted 5 (footnotes oitiitted). at 1987 U.S.C.C.A.N.2140-41 administration, tivity, practical judicial § courts have therefore looked to U.S.C. 1 18 1987, § 7. When U.S.C. 19 was enacted in 18 monetary as the measure of a serious offense 1987, 4(a), Improvements § Criminal Fine Act of purposes right for the trial. 1279, Report explains: Stat. at 101 House (citations Rep. H.R. No. 98-906 at 19-20 omitted). quotation 4(a) chapter internal marks Section of the bill amends 1 of 18, Code, enacting supersede § carry 18 U.S.C. to19 18 forward title 1, Improvements § "petty ... Sen- U.S.C. Criminal Fine Act of the definition of offense.” 1386 Congress’s I Nor do contend that Congress has amended the defini-

and that keep it current as a measure of which absolutely tion to dictate pronouncements Fi- crimes are and which are serious.8 of the constitutional boundaries nally, importantly, and most by jury. legislature A trial cannot statu- history Congress clear that considers makes tory enactment define the limits of a consti- punishable by up a crime to six months right, tutional and both the one, $10,000 serious prison and a fine to be a § Congress noted that 18 19 have U.S.C. deserving trial.9 magical properties, sig- has no no “talismanic Now, suggest anything I 18 do not Muniz, 477, nificance.” See U.S. at statutory right § 19 creates Rep. 2190; H.R. No. 98-906 at 19-20. Kozel, jury trial. United States v. See although § But 18 U.S.C. 19 does not ab- (7th Cir.1990), denied, cert. F.2d solutely control the determination of what L.Ed.2d tencing repeals U.S.C. 1 as lative fine levied on an individu- Reform Act .... $7,317.34, together repeal, That al is serious if it is November $10,000 provisions by the Sentenc with other enacted that is still much less than the amount have, ing Reform Act that set fine levels for misde imposed upon the fine that could been for an individual and (Inflation meanors figures taken defendants in this case. organization, questions for an raises Almanac, from the 1996 World with inflation persons required about when a charged trial percentage change calculated as the annual misdemeanors_ Sec with minor Index). the overall Consumer Price (section 4(a) of the bill adds a new section tion 19) to 18 U.S.C. ch. 1 that carnes forward the 9. When enacted 18 U.S.C. 19 in current definition of offense. "petty defined offense” as "a Class B (footnotes omitted). Rep. at 4 — 5 H.R. No. 100-390 misdemeanor, misdemeanor, C Class or an Similarly, when 18 U.S.C. 19 was amended Improvements Criminal Fine infraction....” VII, Anti-Drug Abuse Act of Title 1987, 4(a), goal Act of 101 Stat. at 1279. The 7089, 4187, 4409, § the Senate Judicia- 102 Stat. carry enactment was to of this forward defi ry amendment is "[t]he Committee noted "petty nition of offense" as crime for which a fully concept carry of needed to forward punished by up be to six defendant could months exception petty purposes offense for to the $5,000 prison, a fine for an a individual or by jury," right to trial Section constitutional $10,000 organization, fine for an or both. H.R. Analysis Judiciary Committee Issues in H.R. However, phrasing Rep. No. 100-390 at 5. 32692, (Nov. Cong. Rec. petty only by definition of offenses reference to Biden, 1988) (remarks of Sen. Chairman system open classification left a few federal Committee), Judiciary and the the Senate House might instances in which a Class B misdemeanor signifi- Judiciary "[t]he Committee noted that $5,000 subject higher be to fines than the and 'petty cance offense' is that the con- label $10,000 : limits right apply trial does not if a stitutional offense,” charged petty person is with a Section- accomplish The 1987 amendments ... did not VII, B, by-Section Analysis Title Subtitle Minor goal fully petty because [their] the definition of Amendments, and Technical Criminal Law § specifically offense did not include a maximum (Oct. Cong. |T]he Rec. petty fine level.... 1987 definition of (remarks 1988) Rep. Conyers, Chairman of the inadvertently included a class of of- offense Subcommittee on Criminal Justice of the House petty fenses which for constitutional Committee). Judiciary purposes though they even B C are Class punishable by misdemeanors ...: offenses six 1984, Congress 8. amended the maximum fine which, imprisonment months’ or less $5,000 $500 an level in 18 U.S.C. 1 from for setting terms of the statutes fenses, forth such of- $10,000 organization. for an individual higher carry a maximum fine than the 1984, § Act of Criminal Fine Enforcement $5,000 $10,000 levels.... Report explains Stat. at 3138. House Judiciary Analysis Section Committee Issues in purpose of the amendment: response H.R. 32705. In Cong. presently Rec. The amount petty used in the definition problem, Congress to this amended the definition offense, $500, by Congress set judgment 1988 to make clear its that a fine raising figure 1930. The Committee is $5,000 $10,000 above for an individual or for an $500 fine for an account for inflation. If organization renders an offense serious: "Sec ‘‘petty” per individual was when 7089(a) petty $599, tion modifies definition of of capita disposable then income was by providing $5,000 per capita fense in 18 U.S.C. “petty” today, when the $5,000 $9,969. offense cannot call for a fine in excess of disposable income is $10,000 (citations omitted). organization_” for an Rep. for individual H.R. No. 98-906 at 19 ion-by-Section Analysis figure adjusted Title Sect VII, Note that if the 1984 B, day, legis- up present reflects a Subtitle Rec. at inflation it Cong. petty, certainly crimes are must inform Kozel,

our decision. See 908 F.2d at 207. above,

As discussed relevant precedent us to

Court instructs look to the

judgment legislatures guidance

determining whether crime’s authorized

penalties clearly represent de-

termination of seriousness. Where Con-

gress expressly has with its left hand stated punishable

its that a crime six in prison

months and a fine serious, and has with its punishable by

hand enacted law to six $10,000 fine,

months in and a there

is eleai’ evidence that considers

that crime to be To serious. consider such deny

a crime charged defendants by jury,

with it the to trial as the

majority today, is to contravene Su-

preme substituting instruction

judicial determination as to seriousness for Congress.

that of I would therefore vacate

the defendants’ convictions and remand for by jury.

a retrial SERVICES, the Matter of FBN FOOD

INC., Debtor. America, Appellant.

River Bank

Nos. 95-2954. Appeals,

United States Court of

Seventh Circuit.

Argued Jan. 1996. 2,May

Decided 1996.

Rehearing May Denied

Case Details

Case Name: United States v. James D. Soderna

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 30, 1996

Citation: 82 F.3d 1370

Docket Number: 95-1309, 95-1333, 95-1430, 95-1488 and 95-1494

Court Abbreviation: 7th Cir.