UNITED STATES оf America, Plaintiff-Appellee, v. Wesley G. CRANER, Defendant-Appellant.
No. 80-1344.
United States Court of Appeals, Ninth Circuit.
July 27, 1981.
Rehearing and Rehearing En Banc Denied Oct. 16, 1981.
Argued and Submitted Nov. 10, 1980.
The CCPA proffered two reasons for upholding the patent: (1) the foreign corporations fаiled to present evidence that the invention was within the ordinary skills of an average skateboarder; and (2) the kicktail skateboard was commercially successful. In this case, the first reason does not apply and the second one is not controlling.
Unlike the foreign defendants, Grentec presented evidence and the district court found as a fact that the kicktail skateboard was within the ingenuity of the average skateboarder. The court‘s finding must be sustained unless clearly erroneous. Photo Electric Corp. v. England, 581 F.2d 772, 776 (9th Cir. 1978). We do not find it so.
Nor is the commercial success of the invention dispositive. In contrast to the CCPA, the district court did not consider this criterion. In Graham, the Supreme Court acknowledged that secondary factors such as commercial success, the extent to which the invention resolved long-felt needs, and the difficulty of the problem solved could be considered in determining whether a suit patent was valid. This court has stated, however, that the trial court‘s failure to consider secondary factors is not reversible error, and their presence or absence is not of itself determinative of obviousness. NDM Corp. v. Hayes Products, Inc., 641 F.2d at 1280. Where patents are obvious, they cannot be saved from invalidity by resorting to secondary factors. NDM Corp. v. Hayes Products Inc., supra; Jeddeloh Brothers Sweed Mills, Inc. v. Coe Manufacturing Co., 375 F.2d 85, 91 (9th Cir.) cert. denied 389 U.S. 823, 88 S.Ct. 57, 19 L.Ed.2d 76 (1967).
In this case, the district court had ample evidence from which to conclude that the Stevenson patent was obvious. It was therefore not required to consider secondary factors. The district court‘s conclusion was not erroneous.
AFFIRMED.
Martha J. Holden, Asst. Federal Public Defender, Sacramento, Cal., for defendant-appellant.
Before BROWNING, Chief Judge, PECK*, and SNEED, Circuit Judges.
PECK, Circuit Judge.
Appellant Craner was convicted at a bench trial of driving under the influence of alcohol in Yosemite National Park, a violation of regulations promulgated by the Secretary of the Interior.1 On appeal, Craner contends thаt the district court erred in denying his motion for a jury trial.
Although Craner was sentenced only to probation and to attendance at traffic school, the offense of which he was charged carries a maximum penalty of six months’ imprisonment or a $500 fine, or both, plus payment of costs.
The Supreme Court has accorded constitutional stature to the common-law rule that “petty” offenses may be tried without the intervention of a jury. See, e. g., Bloom v. Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 160, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491 (1968); Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (1888). Traditionally, the Court has looked to the nature of an offense in ranking it “serious” or “petty.” See District of Columbia v. Colts, 282 U.S. 63, 72-73, 51 S.Ct. 52, 53, 75 L.Ed. 177 (1930); Callan, supra, 127 U.S. at 552, 555, 8 S.Ct. at 1305-1306. The Court has more recently stressed the maximum authorized penalty as an objective criterion of the gravity of an offense. See Duncan, supra, 391 U.S. at 161-62, 88 S.Ct. at 1453-1454. In a recent spate of cases involving criminal contempts—crimes for which the punishment is not set by legislatures—the Court looked only to thе punishment actually imposed to determine defendants’ rights to jury trials. See Muniz v. Hoffman, 422 U.S. 454, 476-77, 95 S.Ct. 2178, 2190-2191, 45 L.Ed.2d 319 (1975); Codispoti v. Pennsylvania, 418 U.S. 506, 511, 94 S.Ct. 2687, 2690, 41 L.Ed.2d 912 (1974); Taylor v. Hayes, 418 U.S. 488, 496, 94 S.Ct. 2697, 2702, 41 L.Ed.2d 897 (1974); Bloom, supra, 391 U.S. at 211, 88 S.Ct. at 1487; Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966) (plurality opinion). The importance in these cases of the objective criterion of actual punishment, is, however, limited: the Court recognized that criminal contempt is an offense sui generis. It is “not a crime of the sort that requires the right to jury trial regardless of the penalty involved.” Bloom, supra, 391 U.S. at 211, 88 S.Ct. at 1487; accord, Muniz, supra, 422 U.S. at 476, 95 S.Ct. at 2190; Cheff, supra, 384 U.S. at 380, 86 S.Ct. at 1526 (plurality opinion). In the quest for objectivity, the Supreme Court has not thrown out the rule that an offense may be serious enough, apart from its assigned penalty, that the Constitution would require that it be tried by a jury. United States v. Sanchez-Meza, 547 F.2d 461, 463-64 (9th Cir. 1976).
An offensе is not “serious” because it is severely punished; it is severely punished because it is “serious.” The severity of prescribed sanctions is regarded as the best objective indication of the general normative judgment of the seriousness of an offense. Baldwin v. New York, 399 U.S. 66
Nothing in the plurality opinion in Baldwin, on which the government particularly relies, is to the contrary. Justice White, writing for three members of the Court in Baldwin, stated that “a potential sentence of more than six months’ imprisonment is sufficiently sevеre by itself to take the offense out of the category of ‘petty‘.” No member of the Court expressed the view that a lesser potential sentence requires classification of an offense as petty. On the contrary, Justices Black and Douglas, who concurred only in the judgment in Baldwin, thought that the Constitution guaranteed the right tо a jury trial of all crimes. See 399 U.S. at 74-75, 90 S.Ct. at 1891 (concurring opinion).
This is not disingenuous interpretation. It is the explanation of Baldwin offered by the Court itself. See Codispoti, supra, 418 U.S. at 512 n. 4, 94 S.Ct. at 2691 n. 4.
Authorized punishment reflects the seriousness of an offense. It does not determine it. To gauge the seriousness of an offense, the Supreme Court has in recent years looked to the authorized penalty and tо the “relevant rules and practices followed by the federal and state regimes.” Muniz, supra, 422 U.S. at 476, 95 S.Ct. at 2190. See also Duncan v. Louisiana, supra, 391 U.S. at 159-61, 88 S.Ct. at 1452-1453.
Without question, the maximum penalty for an offense is usually more important than any other criterion used in characterizing the offense as serious or petty. As a rule, the penalty best shows, or is taken to best show, the public‘s measure of the gravity of an offense. Frank v. United States, 395 U.S. at 147, 149, 89 S.Ct. 1503 at 1505, 23 L.Ed.2d 162. In the present case, however, Congress, as the public‘s surrogate, did not set the six-month, $500 maximum penalty as the appropriate one for the specific offense of driving under the influence (DUI). The Secretary of the Interior did. See
Craner argues that there is an additional consequence of a DUI conviction beyond the sentence he faced: he could lose his California driver‘s license. The government contends that under United States v. Hamdan, 552 F.2d 276 (9th Cir. 1977), this Court must refuse to considеr “collateral consequences” of a conviction in determining if the Constitution requires a charge to be tried to a jury. In Hamdan, two defendants were charged with making false statements in documents filed with the Immigration and Naturalization Service. The crime was punishable with six months’ imprisonment or a fine of $1,000, or both. A divided panel of this Court held thаt the possibility of imposition on an individual of a fine greater than $500 automatically takes an offense from the “petty” class; the court therefore ruled that the defendants were entitled to a jury trial. Muniz, supra, was distinguished: in Muniz, the defendant to a criminal contempt charge was a 13,000-member union. The $10,000 fine
Hamdan does not forbid consideration of the future legal significance of a conviction in deciding whether an offense is a serious one. Although a license revocation is itself a regulatory, not a punitive action, United States v. Best, 573 F.2d 1095, 1099 (9th Cir. 1978), the threat of loss of a license as important as a driver‘s license, a deprivation added to penal sanctions, is another sign that the DUI defendant‘s community does not view DUI as a petty offense. It is irrelevant to the determination of Craner‘s rights to a jury trial whether this loss has occurred, will surely occur, or simply could occur. Cf. Duncan, supra, 391 U.S. at 159-60, 88 S.Ct. at 1452-1453 (possible penalty, not the one actually imposed, is the gauge of a locality‘s “social and ethical judgments” of the gravity of an offense).
Federal and state precedent and practices counsel ranking DUI as a “serious” crime. In 1930 the Supreme Court held that the analogous offense of recklеss driving was a serious offense within the constitutional guarantee of trial by jury. See District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930). The Court in Colts reasoned that reckless driving was both indictable at common law3 and malum in se, and hence, serious.
There is no legally meaningful distinction between the present case and Colts. The government, therefore, understandably argues that Colts is superannuated and, as precedent, abandoned. Yet Colts was cited by Justice White without disapproval in Baldwin—the very case that supposedly doomed “the nature of the offense” as the detеrminant of the right to a jury trial. See Baldwin, supra, 399 U.S. at 69 n. 6, 90 S.Ct. at 1888 n. 6 (plurality opinion). This Court has rejected the argument that the Colts line of cases should not be followed; the Supreme Court has never repudiated Colts, although it has had many opportunities to do so. United States v. Sanchez-Meza, supra, 547 F.2d at 463-64. See also United States v. Stewart, 568 F.2d 501, 503 (6th Cir. 1978); United States v. Woods, 450 F.Supp. 1335, 1342 (D.Md.1978); Brady v. Blair, 427 F.Supp. 5, 9 (S.D.Ohio 1976).4
This holding is not an impractical one. Given the comparative rarity of federal DUI prosecutions, the administrative benefits afforded by summary рroceedings in these cases are slight, particularly since a high rate of waiver of jury trials may be expected.6 We cannot say that as a constitutional matter these benefits outweigh defendants’ interests in being tried by their peers if they so choose.
Reversed and remanded.
SNEED, Circuit Judge, concurring in the result only:
I concur in the result reached by the majority.
I agree that neither Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), nor Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974), hold that all offenses with respect to which the authorized prison term is six months or less and the fine $500 or less are “petty.” Their holdings point the other way, viz., offenses carrying terms in excess of six months and fines of more than $500 must be tried before a jury. The upshot is that the latter type of offense is never “petty,” while the former usually is. It is also true that this court in United States v. Sanchez-Meza, 547 F.2d 461 (9th Cir. 1976), recognized that factors other than the maximum sentence possible are relevant in determining whether an offense is “petty.”
I also agree with the majority that under the circumstances of this case the maximum penalty imposed by the Secretary of Interior does not, as the majority observes, represent the considered legislative judgment of the gravity of the offense. Nоr does it, in my opinion, represent a considered executive judgment of the gravity. The Secretary could impose no greater penalty; the
Under these circumstances it is appropriate to diminish the importance of the maximum penalty in determining whether the DUI offense is “petty” and focus on the additional consequences that attend conviction of this offense. Under California law these consequences are substantial. See
The flaw I find in the majority opinion is that it is open to the interpretation that the maximum penalty is only one of several possible factors of approximately equal weight to be employed in determining whether an offense is petty. I write to indicate that that interpretation is not my understanding of the law.
HOMESTAKE MINING COMPANY, a corporation, Plaintiff-Appellee, v. WASHINGTON PUBLIC POWER SUPPLY SYSTEM, Defendant-Appellant.
No. 79-4576.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 9, 1981.
Decided July 27, 1981.
Phillip H. Ginsberg, Houghton, Cluck, Coughlin & Riley, Seattle, Wash., for defendant-appellant.
Eric W. Jorgensen, Brobeck, Phleger & Harrison, San Francisco, Cal., for plaintiff-appellee.
Before GOODWIN, SKOPIL, and REINHARDT, Circuit Judges.
PER CURIAM:
We affirm the judgment of the district court substantially for the reasons set forth in its decision, reported at 476 F.Supp. 1162 (N.D.Cal.1979).
AFFIRMED.
Antonio CUCCHIARA, doing business as The Traders, Plaintiff-Appellant, v. SECRETARY OF the TREASURY, Department of the Trеasury, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, Defendants-Appellees.
No. 79-4786.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 10, 1981.
Decided July 30, 1981.
Rehearing and Rehearing En Banc Denied Sept. 25, 1981.