FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 7, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee
No. 08-1497
v. (D.C. No. 1:08-CR-00064-JLK-1)
(D. Colo.)
PAGE PENK,
Defendant–Appellant.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
Following a bench trial before a United States Magistrate Judge, Page Penk
was convicted of one petty offense. On appeal, he raises a single issue: whether
the bench trial violated his Sixth Amendment right to trial by jury. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Penk’s conviction because
there is no right to a jury trial for petty offenses.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
Penk was charged by information with (1) failing to comply with official
signs and the lawful direction of Federal police officers in violation of 41 C.F.R.
§ 102-74.385 and (2) creating a disturbance in violation of § 102-74.390. With
his case pending before a magistrate judge as permitted under 18 U.S.C.
§ 3401(a) and D. Colo. Crim. R. 57.1(B)(15), Penk moved for a jury trial, but his
motion was denied. Following a bench trial, Penk was convicted of failing to
comply but acquitted of creating a disturbance. The magistrate judge imposed a
five-day suspended sentence and two months’ unsupervised probation. Penk
appealed the conviction to a district judge, but his appeal was denied. This
appeal followed.
Before this court, Penk argues that the Sixth Amendment requires a jury
trial even for petty offenses. We review this claim de novo. United States v.
Robertson, 45 F.3d 1423, 1430 (10th Cir. 1995). “It is well established that the
Sixth Amendment, like the common law, reserves th[e] jury trial right for
prosecutions of serious offenses, and that ‘there is a category of petty crimes or
offenses which is not subject to the Sixth Amendment jury trial provision.’”
Lewis v. United States, 518 U.S. 322, 325 (1996) (quoting Duncan v. Louisiana,
391 U.S. 145, 159 (1968)). “Crimes carrying possible penalties up to six months
do not require a jury trial if they otherwise qualify as petty offenses.” Duncan,
391 U.S. at 159. Penk was convicted of an offense carrying a maximum prison
term of 30 days, 41 C.F.R. § 102-74.450, which is a Class C misdemeanor, 18
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U.S.C. § 3559(a)(8). A Class C misdemeanor qualifies as a petty offense. 18
U.S.C. § 19. Thus, he was not entitled to a jury trial.
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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