United States District Court, D. Oregon
S. Amanda Marshall, United States Attorney, Annemarie Sgarlata, Assistant United States Attorney, and Celeste Strate (law student appearing with permission), Office of the United States Attorney, Portland, OR 97204, Of Attorneys for the United States of America.
Kenneth A. Kreuscher, Attorney at Law, Portland, OR Of Attorneys for Defendant-Appellant.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
On June 24, 2014, Defendant-Appellant Alisa D. Christensen ("Appellant") was convicted, after a bench trial before United States Magistrate Judge Paul Papak, of Disorderly Conduct Creating a Disturbance in violation of 38 C.F.R. § 1.218(a)(5) and (b)(11). Disorderly Conduct Creating a Disturbance under this provision is a Class B Misdemeanor, 18 U.S.C. § 3559(a)(7), and thus a petty offense as defined by 18 U.S.C. § 19. Judge Papak imposed a fine of $75, and ordered Appellant to pay, in addition to the fine, a processing fee of $25, a special assessment of $10, and restitution of $440.95, for a total of $550.95. The case is now before this Court on Appellant's timely appeal of her conviction under 18 U.S.C. § 3402 and Fed. R. Crim. P. 58(g)(2)(B). The only challenge raised by Appellant is to the sufficiency of the charging document. For the reasons that follow, Appellant's conviction is affirmed.
The court has jurisdiction over this appeal under Fed. R. Crim. P. 58(g)(2)(B). In an appeal from a magistrate judge's judgment of conviction, "[t]he scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed. R. Crim. P. 58(g)(2)(D). Because the issue before the Court is a question of law, the magistrate judge's conclusions are reviewed de novo. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007).
Appellant contends that the charging document in this case, a Central Violations Bureau ("CVB") Violation Notice and Statement of Probable Cause, failed to conform to the requirements of the Sixth Amendment and the Federal Rules of Criminal Procedure. Specifically, Appellant argues that because the charging document failed adequately to allege that she committed the elements of Disorderly Conduct Creating a Disturbance, it did not provide her with a sufficient description of the charge to enable her to prepare a defense or plead double jeopardy against potential future prosecutions.
A. Law Governing the Sufficiency of a Charging Document
The Sixth Amendment guarantees a criminal defendant the right "to be informed of the nature and cause of the accusation." See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature and cause of the accusation"); In re Oliver, 333 U.S. 257, 273 (1948) ("A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense... are basic in our system of jurisprudence."). When determining whether a defendant has received fair notice under the Sixth Amendment of the charges against her, a court begins by analyzing the content of the charging document. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). The court must also recognize, however, that the demands of Sixth Amendment may vary depending upon the severity of the punishment at risk. For example, the Sixth Amendment also provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. CONST. amend. VI. Nevertheless, in Lewis v. United States, 518 U.S. 322 (1996), the Supreme Court held: "The Sixth Amendment's guarantee of the right to a jury trial does not extend to petty offenses, and its scope does not change where a defendant faces a potential aggregate prison term in excess of six months for petty offenses charged." Lewis, 518 U.S. at 323-24. In addition, the Ninth Circuit has instructed that a charging document "should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied." United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007) (quoting United States v. King, 200 F.3d 1207, 1217 (9th Cir. 1999)).
Further, Appellant argues that the standards of Fed. R. Crim. P. 3 and 7 (regarding complaints, indictments, and informations) apply to this case, or should at least be considered by analogy. The charging document here, however, was a CVB Violation Notice, not a complaint, indictment, or information. As the Ninth Circuit has explained, "[v]astly different levels of judicial scrutiny apply to complaints and violation notices, respectively." United States v. Boyd, 214 F.3d 1052, 1057 (9th Cir. 2000).
Moreover, because Appellant was charged with and convicted of a petty offense, Rule 58 of the Federal Rules of Criminal Procedure ("Petty Offenses and Other Misdemeanors") must be examined. According to Rule 58(b)(1), "[t]he trial of a petty offense may also proceed on a citation or violation notice." Further, Rule 58(b)(2) provides: "At the defendant's initial appearance on a petty offense or other misdemeanor charge, the magistrate judge must inform the defendant of the following: (A) the charge, ...." Fed. R. Crim. P. 58(b)(2)(A). Finally, as the Eleventh Circuit has explained: "Rule 58 contemplates that the charging document for a petty offense need not be as formal or require as much as an indictment or information would." United States v. Kowallek, 438 F.Appx. 889, 890 (11th Cir. 2011) (unpublished).
B. Regulatory Provision and Violation Notice
Appellant was convicted of violating 38 C.F.R. § 1.218(a)(5), ...