Jean-Baptiste Bado v. US (en banc)

Concurring opinion by Associate Judge Thompson, at page 1266.

Dissenting opinion by Associate Judge Glickman, with whom Associate Judge Fisher joins, at page 1270.

Dissenting opinion by Associate Judge Fisher, with whom Associate Judge Glickman joins, at page 1271.

Ruiz, Senior Judge:

Jean-Baptiste Bado appeals his conviction for misdemeanor sexual abuse of a minor, after a bench trial, on the ground that he was denied the right to a jury trial guaranteed by the Sixth Amendment. The court, sitting en banc, is asked to decide whether the Sixth Amendment guarantees a right to a jury trial to an accused who faces the penalty of removal/deportation 1 as a result of a criminal conviction for an offense that is punishable by incarceration for up to 180 days. By itself, that period of incarceration does not puncture the six-month line past which an offense is deemed "serious" and jury-demandable. We hold that the penalty of deportation, when viewed together with a maximum period of incarceration that does not exceed six months, overcomes the presumption that the offense is petty and triggers the Sixth Amendment right to a trial by jury. The conviction is reversed and the case remanded for a jury trial.

I.

Appellant Jean-Baptiste Bado came to the United States on February 8, 2005, from Burkina Faso, where he was a pastor, fleeing at the time from "systematic[ ] prosecut[ion] and torture[ ]for his political and religious beliefs." Once in this country, he filed an application for asylum. His asylum proceeding continued for several years. It was halted in 2011, however, when he was charged by information with three counts of misdemeanor sexual abuse of a minor 2 because, if convicted, under U.S. immigration law he would be barred from receiving political asylum 3 and removed from the United States. 4 Appellant pleaded not guilty and demanded a jury trial, which was denied. At the bench trial, appellant took the stand and contradicted the charges, calling into question the complainant's credibility. He was acquitted of two of the charges but convicted of one count. He was sentenced to 180 days and ordered to pay $50 to the Crime Victims Compensation Program Fund and register as a sex offender for ten years. The United States commenced deportation proceedings on the basis of the conviction.

On appeal, a divided panel of the court reversed the conviction after concluding that appellant's right to a jury trial had been violated. Bado v. United States , 120 A.3d 50 , 52 (D.C. 2015). On granting the government's petition for rehearing en banc, the division's opinions were vacated. Bado v. United States , 125 A.3d 1119 (D.C. 2015). After a further round of briefing by the parties and amici curiae, and oral argument, we now hold that appellant has a constitutional right to a jury trial. Therefore, we reverse his conviction and remand the case to permit appellant to have a trial free from structural error 5 and to receive the "basic protection" of a trial before a jury. Sullivan v. Louisiana , 508 U.S. 275 , 281-82, 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993). 6

II.

The Sixth Amendment guarantees a bundle of trial rights to the accused in "all criminal prosecutions." U.S. CONST. amend. VI. The first of these is "the right to a speedy and public trial, by an impartial jury ...." Id. 7 The Supreme Court has interpreted the scope of the jury trial right, in the light of the common law, as applying to criminal prosecutions for "serious offenses." Duncan v. Louisiana , 391 U.S. 145 , 157-58, 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968). Criminal prosecutions for offenses that are not serious, but deemed to be "petty," may be tried by a judge without violating the Sixth Amendment.

The Supreme Court has set the parameters of what constitutes a "serious" offense under the Sixth Amendment. It is settled that any offense "where imprisonment for more than six months is authorized" cannot be considered "petty" for purposes of the right to trial by jury. Baldwin v. New York , 399 U.S. 66 , 67, 69-70, 90 S.Ct. 1886 , 26 L.Ed.2d 437 (1970) (noting that the distinction between "felonies" and "misdemeanors" is not the constitutional dividing line and that some misdemeanors, such as "jostling," 8 are deemed serious offenses). In Blanton v. City of N. Las Vegas , 489 U.S. 538 , 541-42, 109 S.Ct. 1289 , 103 L.Ed.2d 550 (1989), the Court set out the analytical framework to determine whether a particular offense punishable by incarceration for six months or less is to be deemed "serious," triggering the constitutional right to a jury trial, or "petty," leaving the question of a jury trial to resolution under other applicable law. 9 Noting that the maximum exposure to incarceration is usually the clearest indicator of the seriousness of an offense, the Court, following Baldwin's lead, stated that offenses with a maximum period of incarceration of six months are "presum[ptively] ... petty." Id. at 543 , 109 S.Ct. 1289 . The Court, however, declined to hold that all such offenses "automatically qualif[y] as [ ] 'petty' offense[s]," and established that the presumption can be overcome "if [the accused] 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." Id.

In Blanton the Court applied that test to a conviction for driving under the influence by assessing the statutorily authorized penalties that could be imposed upon conviction for DUI: incarceration from a minimum of two days to a maximum of six months, or, alternatively, 48 hours of community service dressed in clothing identifying the convicted defendant as a DUI offender; a maximum penalty of $1,000; a 90-day suspension of a driver's license; and mandatory attendance at an alcohol abuse education course at the offender's expense. 489 U.S. at 539, 544-45 , 109 S.Ct. 1289 . The Court made clear that, in evaluating the seriousness of the offense, it considered the " maximum authorized prison sentence," id. at 544 , 109 S.Ct. 1289 (emphasis in original), 10 and that it considered only those potential penalties that are actually faced by the particular defendant, id. at 545, & n.12 , 109 S.Ct. 1289 . 11 The Court reasoned that, because the maximum period of incarceration did not exceed six months, the offense was presumptively petty. Id. at 544 , 109 S.Ct. 1289 . It then "[c]onsider[ed] the additional statutory penalties." Id. Of the distinctive garb required if the person were alternatively sentenced to a short period of community service, the Court stated that, even if it were "the source of some embarrassment," it would be "less embarrassing and less onerous than six months in jail." Id. 12 The Court considered the license suspension and concluded it was not "that significant" as a Sixth Amendment matter, in part because the record was unclear as to whether the suspension would be concurrent with the six-month incarceration, in which case it would be "irrelevant," and because a restricted license could be obtained after forty-five days. Id. & n.9, 109 S.Ct. 1289 . 13 The Court dismissed the mandatory alcohol abuse education course as a " de minimis " requirement. Id. at n.9, 109 S.Ct. 1289 . After taking into account all of the possible maximum statutory penalties that could be applied to the defendant, the Court concluded that "[v]iewed together, the statutory penalties are not so severe that DUI must be deemed a 'serious' offense for purposes of the Sixth Amendment." Id. at 545 , 109 S.Ct. 1289 . The Court applied a Blanton analysis one other time, in United States v. Nachtigal , another case that involved operating a motor vehicle while intoxicated. 507 U.S. 1 , 2, 113 S.Ct. 1072 , 122 L.Ed.2d 374 (1993). The possibility of a five-year probation and $5,000 fine did not convert the presumptively petty offense to a serious one for jury trial purposes, the Court held, because they did not approximate or entail as great a loss of liberty as the possibility of imprisonment for more than six months. Id. at 5 , 113 S.Ct. 1072 .

III.

We apply a Blanton analysis in this case. In light of the 180-day maximum exposure to incarceration for misdemeanor sexual abuse of a minor, we begin with the presumption that the offense is "petty" for Sixth Amendment purposes. The question before us is whether the possibility of deportation refutes that presumption. We note the obvious: there is no comparison between the penalty of deportation and the statutory penalties considered in Blanton (temporary license suspension, embarrassing clothing to be worn during two days of community service, and alcohol abuse education course) that were deemed not significant enough to render the DUI offense serious under the Sixth Amendment. Like incarceration, deportation separates a person from established ties to family, work, study, and community. In this forced physical separation, it is similar "in severity [to] the loss of liberty that a prison term entails." Blanton , 489 U.S. at 542 , 109 S.Ct. 1289 (distinguishing probation and fines which, although they "may engender 'a significant infringement of personal freedom,' ... cannot approximate in severity the loss of liberty that a prison term entails") (internal citation omitted) (quoting Frank v. United States , 395 U.S. 147 , 151, 89 S.Ct. 1503 , 23 L.Ed.2d 162 (1969) ). Baldwin held that the possibility of a sentence in excess of six months automatically renders an offense serious under the Sixth Amendment, entitling the accused to a jury trial. Removal, however, can be more severe than the possibility of a six-month sentence of incarceration. Once the actual sentence is served (which could be for a term less than the six-month maximum, or even only probation), a U.S. citizen can return home to family and community and take steps to resume and, possibly, redirect his life. But when a person faces deportation, serving the sentence is only the first step following conviction; once the sentence is completed, the person faces the burdens and anxiety that attend detention pending removal proceedings. Upon removal, the physical separation from family and community lasts at least ten years and, for some, including Mr. Bado, exclusion from the country becomes permanent. 14 This disruption causes harm and suffering to those who are forced to leave and those who remain. Wrenching decisions might have to be made within the family, which could be left without an important source of emotional and financial support. Those families often include children and other family members who are United States citizens and who may be forced to leave this country to preserve familial bonds with a parent or other relative no longer able to remain in the United States, or to continue to receive their financial support. 15 For some, deportation may expose them to harsh conditions in their country of origin including extreme poverty, violence and oppression and persecution based on religious and political beliefs. As the Court has recognized, removal is considered by many immigrants to be worse than incarceration, such that "preserving the [ ] right to remain in the United States may be more important [ ] than any potential jail sentence." Lee v. United States , --- U.S. ----, 137 S.Ct. 1958 , 1968, 198 L.Ed.2d 476 (2017) (quoting Padilla , 559 U.S. at 368, 130 S.Ct. 1473 ).

The Supreme Court has "long recognized that deportation is a particularly severe 'penalty,' " equating it to "banishment." Padilla , 559 U.S. at 365, 373, 130 S.Ct. 1473 (quoting Fong Yue Ting v. United States , 149 U.S. 698 , 740, 13 S.Ct. 1016 , 37 L.Ed. 905 (1893) ); see, e.g. , Fong Haw Tan v. Phelan , 333 U.S. 6 , 10, 68 S.Ct. 374 , 92 L.Ed. 433 (1948) ("[D]eportation is a drastic measure and at times the equivalent of banishment or exile."); Fong Yue Ting , 149 U.S. at 740 , 13 S.Ct. 1016 (Brewer, J., dissenting) ("Every[ ]one knows that to be forcibly taken away from home, and family, and friends, and business, and property, and sent across the ocean to a distant land, is punishment; and that oftentimes most severe and cruel."). Removal that results from conviction erects a bar to entry into the United States, 16 with all the grave consequences that preclusion entails: loss of our country's constitutional protections, the ability to engage with its social institutions, and access to educational and economic opportunities. These are the cherished values that have beckoned to people in other lands since our country's founding and continue to provide hope for those seeking a better life and refuge for those escaping violence and persecution. Their loss is so great as to be unquantifiable. The loss of liberty, akin to incarceration, that results from removal as well as the Court's repeated statements about its severity, lead us to conclude, under a Blanton analysis, that deportation is so "onerous" a penalty for conviction that it presents the "rare situation" that should ensure the availability of a jury trial in a criminal proceeding even though the penalty of incarceration does not "puncture the six-month incarceration line." Blanton , 489 U.S. at 543 , 109 S.Ct. 1289 .

IV.

The government agrees that, under Blanton , there is a two-step analysis: (1) identification of the penalties for conviction of an offense, and (2) an evaluation of whether the penalties, viewed together, are sufficiently severe to warrant a jury trial by comparison to the possibility of imprisonment for more than six months, which the Court has established (when considering only incarceration) as the constitutional dividing line between petty and serious offenses. The government does not dispute that deportation is a severe penalty. The government's arguments boil down to one contention, that deportation is not the type of penalty that Blanton contemplated should be taken into account in determining whether an offense is deemed serious under the Sixth Amendment. Specifically, the government contends that: (1) removal is not a penalty for a criminal offense; (2) removal should not be considered because it is imposed by Congress, not the Council of the District of Columbia, which created the offense; (3) longstanding precedent establishes that deportation is not "punishment"; and (4) the courts of the District of Columbia are not competent to determine the deportation consequence of criminal conviction. As we now discuss, we are not persuaded by the government's arguments to diverge from a straightforward application of a Blanton analysis that includes the penalty of deportation.

A. Deportation is a Penalty for a Criminal Conviction

As the Court has recognized, "[o]ur law has enmeshed criminal convictions and the penalty of deportation for nearly a century." Padilla , 559 U.S. at 365-66, 130 S.Ct. 1473 . In this case, there is no dispute that the offense of misdemeanor sexual abuse of a minor exposes appellant to removal. Appellant had been in proceedings seeking asylum that were terminated pending his criminal trial because, if convicted, he would be ineligible for asylum and deported. 17 The government sought to deport him upon his conviction. The government argues, however, that removal, even if it is triggered by a criminal conviction, is a "civil" sanction that should not be considered in a Blanton analysis. We disagree. As Blanton emphasized, whether the Sixth Amendment guarantees a jury trial is determined by reference to the possible statutory "penalties" that "attach[ ] to" conviction of the offense:

In using the word "penalty," we do not refer solely to the maximum prison term authorized for a particular offense. A legislature's view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense . We thus examine "whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial."

489 U.S. at 542 , 109 S.Ct. 1289 (first emphasis added and internal citation omitted) (quoting Duncan , 391 U.S. at 161 , 88 S.Ct. 1444 ). The Court did not parse whether "the other penalties" were "penal" or "civil" in nature, and took care to consider the relative burdens imposed by each of several penalties that were "civil" in nature:

temporary license suspension, 48 hours of community service, a fine, and required attendance at an alcohol abuse education course. Id. at 543-44, 109 S.Ct. 1289 . We see no foothold in Blanton for the distinction the government urges in this appeal.

Reprising the "civil" versus "penal" point, the government argues that removal resulting from conviction is merely the prescribed remedy in a regulatory-type proceeding that enforces provisions in the immigration laws that define who is permitted to stay in the country. 18 No one doubts that the government has the power to deport persons, so long as it is exercised pursuant to statutory authority and consistent with the Constitution. That is not the issue here. In this case, we are concerned with the constitutional rights guaranteed to the accused under the Sixth Amendment in a criminal prosecution that could result in deportation. The government's argument that deportation, as a civil penalty, is not relevant to our inquiry is refuted by Blanton , where the Court considered the possible penalty of license suspension following conviction for DUI relevant in deciding whether the Sixth Amendment guarantees that apply to criminal prosecutions required a jury trial. A license can be suspended, even in the absence of conviction, for purely regulatory reasons such as failure to renew or driving without prescribed vision correction, just as a person may be subject to removal for violating the terms of admission absent a criminal conviction. Yet, in Blanton , the Court took into account the possibility of a license suspension as part of its Sixth Amendment analysis because the statute provided that suspension of licensing privileges was a penalty for a DUI conviction. Similarly here, a statutory provision imposes deportation as a penalty for conviction.

Moreover, the argument that characterizes deportation as a "non-criminal" sanction is at odds with (and relies on cases that precede) current law and practice under the 1996 amendments to the Immigration and Naturalization Act ("INA") 19 which provide that removal proceedings are triggered by conviction of a number of state and federal offenses. Cognizant of these changes in the law, the Court has soundly rejected the notion that removal is merely a collateral consequence of criminal conviction, distinct from a criminal penalty, and has instead recognized that "as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on noncitizen defendants." Padilla , 559 U.S. at 364, 130 S.Ct. 1473 . The "drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes." Id. at 360, 130 S.Ct. 1473 (internal citation and quotation omitted). To characterize deportation in a case like this as merely a civil remedy separate from the penalty for conviction is not only contrary to Blanton's analysis; it also flies in the face of the Court's repeated statements in recent opinions that the penalty of removal plays a central role in criminal proceedings involving noncitizens. See Sessions v. Dimaya , 584 U.S. ----, 138 S.Ct. 1204 , 1213, 200 L.Ed.2d 549 (2018) ("[A]s federal immigration law increasingly hinged deportation orders on prior convictions, removal proceedings became ever more 'intimately related to the criminal process.' " (quoting Chaidez v. United States , 568 U.S. 342 , 352, 133 S.Ct. 1103 , 185 L.Ed.2d 149 (2013) (in turn quoting Padilla , 559 U.S. at 365, 130 S.Ct. 1473 ) ). The civil/criminal distinction the Court said in Padilla is "ill suited" to evaluating a Sixth Amendment claim of ineffective assistance of counsel, Padilla at 366, 130 S.Ct. 1473 , is equally ill-suited to evaluating a claim to a jury trial, which is another in the group of rights guaranteed by the Sixth Amendment to the accused in a criminal prosecution. 20 Cf. Dimaya , 584 U.S. at ----, 138 S.Ct. at 1212-13 (noting government's civil/criminal distinction and rejecting the argument that because deportation is a civil sanction, a less searching standard should apply in a due process evaluation of a void-for-vagueness challenge under the Fifth Amendment).

Finally, the argument that deportation is simply a civil measure also overlooks that harsher substantive and procedural requirements apply when deportation is triggered by a criminal conviction than in "regulatory" deportations, such as when a person is out of status ( e.g ., a person who is working without authorization or enters on a student visa and is no longer in school). Those who are removed as a result of a criminal conviction are ineligible for reentry for a longer period or permanently barred, 21 they are more likely to be detained pending removal proceedings, and, once a removal order has been entered, they are also streamlined through expedited removal proceedings, subjected to additional periods of detention, and extremely limited in their eligibility for re