dissenting.
Unlike the majority, I believe that the government must prove that it holds the legal right to exclude individuals from the turning lane of Iosco County Highway F-41 before it may maintain what is essentially a trespass action under 18 U.S.C. § 13821 against Appellant for stepping over the military’s unilaterally drawn “boundary.” Because in my view the proof at trial failed to establish beyond a reasonable doubt that the government held the requisite property interest, I would reverse Appellant’s conviction. Additionally, I believe that the Appellant was denied her right to a jury trial in violation of Article III and the Sixth Amendment. This deprivation of a fundamental constitutional guarantee provides an independent reason to reverse. Accordingly, I respectfully dissent from the decision of my distinguished colleagues.
I.
The majority concludes that the Appellant was on the property of Wurtsmith Air Force Base. I believe, however, that the trial record was so confusing as to the base boundary that no reasonable trier of fact could conclude beyond a reasonable doubt that the Appellant was present within the confines of the base. The majority aptly describes the prosecution’s presentation at trial:
The prosecution did not prove to the satisfaction of the trial court that the United States holds a leasehold or fee interest in any of the land occupied by the base, and there was no attempt to prove that the portion of the driveway where Mrs. McCoy passed out her leaflets lay outside the right-of-way “released” for Highway F-41.
*835Contrary to the majority conclusion that the nature of the government’s property interest was “immaterial,” I believe that such proof was in fact essential to the government’s case.
Section 1382 clearly requires for conviction that the defendant reenter or be found within a military reservation. Several courts have interpreted this provision to require that the government must prove “absolute ownership or the exclusive right to the possession of the property upon which the violation occurred.” United States v. Mowat, 582 F.2d 1194, 1206 (9th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 458, 58 L.Ed.2d 426 (1978); United States v. Packard, 236 F.Supp. 585 (N.D. Cal.), aff'd, 339 F.2d 887 (9th Cir.1964). This element of the offense received further elaboration in United States v. Watson, 80 F.Supp. 649 (E.D.Va.1948):
The Court is of the opinion that the United States must show an absolute ownership, or an exclusive right to the possession, of the road, in order to enforce the commandant’s interdiction of the defendant. To punish an infraction of the order, as an offense under title 18, section 1382, U.S.C.A., proof of criminal jurisdiction of the road alone was not enough. Sole ownership or possession, as against the accused, had to be in the United States or there was no trespass.
Id. at 651. Thus, the United States must prove that it holds the “exclusive right to the possession” of the land upon which the Appellant was arrested in order for the Appellant to be convicted under section 1382. The “right” to possession clearly requires more than the assertion of military authority over the turning lane of Highway F-41, which the majority finds so persuasive; the “right,” in my view, must derive from the government’s legal title to the property, either in fee or by leasehold. Examining the record in the light most favorable to the prosecution, as we must, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Joseph, 781 F.2d 549, 553 (6th Cir.1986), I conclude that the United States failed to present evidence upon which a reasonable trier of fact could conclude beyond a reasonable doubt that the Appellant was “found within” the military installation.
As the majority notes, certain documents received into evidence “suggest” that the government leases Wurtsmith Air Force Base from the State of Michigan.2 Without further explanation, however, it is not immediately apparent from these documents that the government’s putative leasehold includes the land adjacent to the base on which Highway F-41 is located.3 The documents evidently give the government an interest in some property, but the property is set forth in terms of legal descriptions of land that require expert explanation for a proper understanding. The only explanatory testimony offered by the government, however, was that of Joan Shepard, the civilian real estate officer at Wurtsmith. Unfortunately, Ms. Shepard’s testimony did very little to clarify the boundaries of the base. She was obviously confused and ill-equipped to give legal opinions as to the documents in her control. Regarding Shepard’s confused testimony Judge Churchill stated, “I find that the government’s so called expert witness was far from an expert. I want to say this. My findings are not based upon giving her any expertise whatsoever.” The prosecution’s sole witness regarding the base’s property interest was thus totally discredited and her testimony deemed useless; the documents pertaining to the government’s property interest were never adequately explained and completely lacking in testi*836monial foundation.4 The government, therefore, failed to prove that Highway F-41, or at least the disputed turning lane, was within the military reservation.
Ultimately, the district court resolved the property line issue by deferring to the judgment of air base personnel as to the boundary line when the court stated, “they [defendants] were told by the government —it shouldn’t have been necessary, but it was, that you’re on a military reservation, get off.” The majority here adopts similar reasoning. However, a blind yet good faith assertion by military personnel as to the boundary of a military reservation does not suffice to establish the critical element of a section 1382 violation. Such assertions by the government stating the scope of their property dominion may deter a majority of the general public from entering certain property, but such territorial claims must be substantiated beyond a reasonable doubt at trial to convict the Appellant. I am similarly unpersuaded by the majority's reliance on the physical layout of the gate area. Although a person standing in the turning lane of Highway F-41 could not help noticing that a military base loomed immediately to the west, such an observation is not conclusive proof that the military had the right to possess part of a public thoroughfare lying outside of the apparent base boundary, i.e., the gate and fence. I conclude, therefore, that the government failed to establish the requisite possessory interest to the land upon which the Appellant Joan McCoy was standing to maintain a section 1382 action.
Although it is possible that the U.S. Government does have a possessory interest in the land in question, the extent of that interest is entirely unclear.5 Indeed, the location of the base boundary was the source of internal confusion among base personnel, resulting in the original line being moved to extend the military’s asserted dominion. The evidence “suggested” that the Federal Government is the underlying lease holder to property in the vicinity of F-41, but the government failed to prove that the base boundary extended past its fenced perimeter. Consequently, the government failed to establish that the Appellant reentered a military reservation when she crossed a white line painted in a turning lane of a busy public highway.6 I would therefore reverse Appellant’s conviction.
II.
In addition to an insufficient showing of proof by the prosecution as to an essential element of a section 1382 offense, I believe that a second source of grievous error existed in the trial court proceedings. The *837district court summarily concluded that the defendants, including the Appellant, were not entitled to a jury trial.7 Appellant, acting without the benefit of counsel at trial, inquired, “What is the reason for no jury?” The Court replied:
Because Congress has said so, and the line has been drawn. There’s a constitutional right to a jury under certain circumstances — not under certain circumstances. This is one of the certain circumstances where you do not have that right. I’m not necessarily saying it should be that way, but as far as I’m concerned, that’s the way the statutes have been written and the law has been written on petty offenses.
Contrary to the district court’s assertion, in my opinion, the Appellant’s circumstances mandated the option of a jury trial if the Appellant so desired.
Article III of the Constitution mandates that “The trial of all Crimes ... shall be by Jury_” U.S. Const. Art. Ill, § 2, cl. 3. The Sixth Amendment similarly requires that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury_” U.S. Const, amend VI. In spite of this explicit language, the Supreme Court has accorded constitutional stature to the common-law rule that “petty” offenses may be tried without a jury. See, e.g., Bloom v. Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 1486-87, 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). Petty offenses are statutorily defined in 18 U.S.C. § 1(3) as “any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both....” See, e.g., United States v. Bishop, 261 F.Supp. 969, 972 (N.D.Cal.1966) (single violation of 18 U.S.C. § 1382 was a “petty” offense not requiring a jury trial). However, defendants accused of “serious” crimes are afforded the right to a trial by jury, and an offense carrying a maximum penalty in excess of six months imprisonment is considered sufficiently severe to be automatically categorized as “serious.” Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970) (plurality opinion).
“An offense 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.” United States v. Craner, 652 F.2d 23, 24 (9th Cir.1981) (citing Baldwin, 399 U.S. at 68, 90 S.Ct. at 1888). It is the maximum authorized penalty that will reflect the legislative judgment as to the “seriousness” of the offense. See United States v. Stewart, 568 F.2d 501, 503 (6th Cir.1978); United States v. O’Connor, 660 F.Supp. 955, 956 (N.D.Ga.1987). In determining if the Appellant’s conviction was of an offense “serious” enough to implicate her right to a jury trial, the court should look at the maximum authorized penalty, rather than the actual penalty that has been or is likely to be imposed.8 See, e.g., *838Craner, 652 F.2d at 24-25; O’Connor, 660 F.Supp. at 956.
The maximum punishment for violating 18 U.S.C. § 1882 is a $500 fine or six months in prison or both. But, as the district court made explicitly clear to the defendants including the Appellant, “but you understand there is a potential when you’re charged with three offenses ..., there is the potential for consecutive sentences?” The judge continued by stating that, “We’re dealing with offenses that if, upon convictions, can result in some rather significant prison sentences, rather long prison sentences. If a person is charged with three offenses or four, if they are charged with four, they would be facing a possibility of two years in prison.” The Appellant was charged and sentenced on three counts of violating 18 U.S.C. § 1382. Consequently, she was subject to a maximum penalty of 18 months in prison and a $1500 fine. Because she faced a potential punishment of incarceration for over six months as well as fines in excess of $500, the Appellant was entitled to the jury trial that the district court summarily rejected.
Since, as the district court warned, the Appellant faced a potential penalty of 18 months imprisonment as well as a $1500 fine, and no limitation as to the charges was made by the government in advance of trial to obviate the necessity of a jury trial, the Appellant should have enjoyed her constitutional right unless she knowingly and voluntarily waived that right.9 Given the Appellant’s inquiry “What is the reason for no jury?”, which I construe as an objection, and the court’s summary rejection of any right to a jury trial, the record does not support a finding of waiver. Accordingly, I conclude that the Appellant’s constitutional right to a jury trial pursuant to Article III and the Sixth Amendment has been violated.
III.
In my view, Appellant’s conviction was based on insufficient proof and was obtained in derogation of her constitutional right to a jury trial. For these reasons, her conviction pursuant to 18 U.S.C. § 1382 should be overturned. I respectfully dissent.
. 18 U.S.C. § 1382 provides:
Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or
Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof—
Shall be fined not more than $500 or imprisoned not more than six months, or both.
. The documents included (1) a purported lease between the State of Michigan and the United States (Government exhibit 10), (2) a supplemental agreement extending the lease (Government exhibit 11), and (3) a permit whereby the Army granted the state of Michigan an easement for a highway (Government exhibit 12).
. The majority’s observation that the "existence of Wurtsmith Air Force Base does not depend on the strength of the government’s legal title” misses the point. Appellant has never claimed that the base does not exist; rather, she challenges the government’s right to unilaterally claim dominion over property apparently outside the base confines. In my view, her challenge is well taken.
. Regarding all of the government documents and in particular exhibit 12, which purportedly restricted the easement granted the state for the construction of the highway, Judge Churchill stated, "the government frankly did not do a real good job of establishing the documentary history with respect to these documents.”
. Russell Small, the director of surveys for the Iosco County Road Commission, was the only expert witness to testify. When asked who owned the F-41 land, Russell Small replied, "We [the county] do not own it,” and that “Honestly, I do not know_" Consequently, ownership of the land upon which F-41 was constructed was never conclusively established. In addition, Mr. Small’s testimony did nothing to clear up the confusion as to why two easements were granted at different times for the construction of F-41 by two different parties. Judge Churchill asked a very appropriate question that was never satisfactorily resolved in the course of the trial when he asked Mr. Small, "as a surveyor, how do you reconcile the fact that the Conservation Department was giving the State of Michigan a right-of-way, and apparently the government, Federal Government, was giving the state of Michigan the right-of-way over the same land?” Mr. Small responded, "at the time that the Conservation Department issued to the State Highway Department this highway easement release, [exhibit 16] they must have been in control. Otherwise, they could not have issued it.” Small concluded that he could not reconcile the two easements without further research.
.The majority relies on Loud v. Brooks, 241 Mich. 452, 217 N.W. 34 (1928) for the proposition that a conveyance of land abutting a street generally carries with it the fee to the center of the street. However, it is also recognized that before this doctrine can be applied, proof is required that "the property must actually abut a street, alley, or highway.” Dickens v. Gordon, 61 Mich.App. 353, 232 N.W.2d 707, 709 (1975). As this opinion indicates, I believe that the government has failed to prove that it has a property interest in the land abutting F-41.
. Although Appellant’s counsel neglected to raise the issue of Appellant’s right to a jury trial on appeal, under limited circumstances, Fed.R. Crim.P. 52(b) authorizes federal appellate courts to examine a critical issue not raised on appeal. Rule 52(b) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” As noted by the Supreme Court:
In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.
United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936); see Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 1288, 8 L.Ed.2d 798 (1962); United Brotherhood of Carpenters & Joiners v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973 (1947); United States v. Brown, 508 F.2d 427, 430 (8th Cir.1974). Since I believe that Appellant’s right to a jury trial was erroneously denied by the trial judge, this Court of its own motion should examine that deprivation of this constitutional right.
. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Supreme Court stressed that the maximum authorized penalty was an objective criterion of the gravity of an offense. Id. at 161-62, 88 S.Ct. at 1453-54. In cases involving criminal contempts, the Court has looked to the punishment actually imposed *838to determine the defendants’ rights to jury trials. See Muniz v. Hoffman, 422 U.S. 454, 476-77, 95 S.Ct. 2178, 2190-91, 45 L.Ed.2d 319 (1975); Codispoti v. Pennsylvania, 418 U.S. 506, 511, 94 S.Ct. 2687, 2691, 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). However, the importance of this objective criterion of actual punishment is limited to the criminal contempt context since criminal contempt is an offense "sui gen-eris” that is “not a crime of the sort that requires the right to jury trial regardless of the penalty involved.” United States v. Craner, 652 F.2d 23, 24 (9th Cir.1981) (quoting Bloom, 391 U.S. at 211, 88 S.Ct. at 1459).
For these reasons I am not persuaded by the majority citation to Taylor v. Hayes, supra note 3, a criminal contempt case that did not purport to decide the jury trial question at issue here. Although the language quoted from United States v. Smyer, 596 F.2d 939, 942 (10th Cir. 1979), more closely supports the majority’s position, I find it unimpressive for two reasons. First, it is dictum; the defendants in Smyer had executed written waivers of their right to a jury trial that the appellate court explicitly found valid, thus rendering unnecessary any discussion of the scope of the defendants’ rights. Moreover, the Smyer court's gratuitous analysis of the jury trial question relied strictly on Supreme Court cases handed down in the criminal contempt context. See id. In my view, this precedent does not justify the denial of Appellant’s constitutional right to a jury trial.
. Fed.R.Crim.P. 23(a) provides:
Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.