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Burns Chronicles No 56 – Is a Misdemeanor a Crime?

I have to wonder if she believes that she can impose criminal penalties on a “petty offense”.

Is a Misdemeanor a Crime?

Burns Chronicles No 56
Is a Misdemeanor a Crime? or, Is the Court a Crime?

by Gary Hunt

Perhaps we should start with Article VI, clause 2, of the Constitution of the United States of America:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Now, that is easy to follow and understand.  First, “This Constitution“, and, next, “the Laws of the United States which shall be made in Pursuance thereof“, “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”

Article V of the Constitution states that when an Amendment is ratified, it “shall be valid to all Intents and Purposes, as Part of this Constitution.”  “Shall” is mandatory.  It is imposed, without recourse, and must be obeyed.  The requirement that any “Laws… which shall be made in Pursuance thereof” precludes any enactment, statute, or rule, to be in violation of the intent of the Constitution and the Laws made Pursuant to it

In a previous article, “To Jury, or, Not To Jury“, the Sixth and Seventh Amendments were discussed.  Now, let’s go to the top, the Constitution itself, and see what it says.  This led to the more descriptive wording in the Sixth and Seventh Amendments.  This case has to do with misdemeanor charges of trespass, tampering with vehicles or equipment and destruction of property.  This is the Article that established the Judicial Branch, Article III, § 2, clause three:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury…

The subsequent Amendments set no limit on criminal charges and a minimum of twenty dollars in civil actions, each requiring a jury trial.  The Amendments made clear, without ambiguity, that any case tried in a court of the United States must fall within those two described areas.  There are no exceptions.

However, this Court, appearing to be inquisitorial rather than just, has opted to circumvent those limitations imposed upon judiciary, by the very document that created the judiciary.  It has put in place, by two methods, a means of deception, whereby the can circumvent the Law of the Land.  Chicanery, defined as “deception or trickery, especially by the clever manipulation of language”, is certainly involved in this current circumvention and “inquisition”.

First, chicanery is often used in the “case law method”, where higher court decisions are based upon previous decisions, not necessarily in accordance with the Constitution.  This method began being applied in 1872, shortly after the Civil War.  Harvard University set forth the “method”.  It has since become what appears to be the primary foundation for decisions, most often, without regard to the Constitution.

We can see from two paragraphs in Judge Brown’s  “Order Setting Bench Trial on Class B Misdemeanor Counts in Conjunction With Jury Trial of Felony Counts“.  In ruling against the Defense’s objection to the bench trial (without jury) on the newly added misdemeanor charges, she states:

On the other hand, the Court also finds unpersuasive the out-of-district authorities on which Defendants rely. In particular, the Court finds United States v. Greenpeace, Inc., 314 F. Supp. 2d 1252 (S.D. Fla. 2004), to be unpersuasive because it did not adequately account for Congress’s knowledge that no right to a jury trial attached to a petty offense or the failure of Congress expressly to grant the federal courts with discretion to nonetheless provide a trial by jury. Similarly, the remainder of Defendants’ primary authorities are of limited value because they arise from a period of time when the state of the law regarding a right to jury trial was very different from current caselaw.

The Court finds the significant uncertainty in the law regarding whether it has discretion to provide a jury trial where no right thereto otherwise exists is itself a compelling reason why the Court should not choose to provide a trial by jury on the Class B misdemeanor counts in this case. Simply put, the Court declines to exercise discretion to take an action when it is not at all clear that the Court has such discretion in the first place.

Breaking this down, in discussing Greenpeace, she writes that the Second District Court of Florida “did not adequately account for Congress’s knowledge that no right to a jury trial attached to a petty offense“.  So, the Court did not know that Congress knows that no right to a jury trial is allowed in a “petty offense”.  Congress’ knowledge seems to have been taken, by Judge Brown, as some sort of law.  Then, she suggests that Congress failed “expressly to grant the federal courts with discretion to nonetheless provide a trial by jury.”  Is it possible that there exists another language containing the same words, though with different meanings?  This presumption that a “petty offense” is not a crime simply astounds me.

Second, and this is where the rubber really meets the road, she says, “Defendants’ primary authorities are of limited value because they arise from a period of time when the state of the law regarding a right to jury trial was very different from current caselaw.”  What?  They arise from a different time?  We must be back under British rule.  But, then, there are the magic words, “case law”.  Not in the Constitution…  Not in the Amendments to the Constitution…  Not in laws made pursuant to the Constitution…  Rather, by judge’s decisions, and their decisions are in VIOLATION of the Constitution.  It is also suggestive that “current case law” can change, at the whim of whichever judge is making a decision.

If it is within the purview of the Judicial Branch of government, then it may interpret the Constitution.  However, nothing provides it any authority to legislate, which is the sole prerogative of the Congress.  The Judicial Branch is attempting to pervert the Constitution, and in so doing, pervert the court.

Next, Judge Brown moves on to whether her discretion allows her to determine if the case must be heard by a magistrate, or if she can hear the misdemeanor charges, instead of a magistrate.  Additionally she addresses whether she has the discretion to decide if the defendants have the right to a jury trial.  In so doing, she states:

The Court finds the significant uncertainty in the law regarding whether it has discretion to provide a jury trial where no right thereto otherwise exists is itself a compelling reason why the Court should not choose to provide a trial by jury on the Class B misdemeanor counts in this case. Simply put, the Court declines to exercise discretion to take an action when it is not at all clear that the Court has such discretion in the first place.

Nevertheless, even if the Court had such discretion in this case, the Court would decline to exercise that discretion. The Court notes Congress explicitly intended the trial of petty offenses to be tried to the court, and expressly permitted magistrate judges to conduct such trials in order to facilitate their efficient resolution without the process associated with a jury trial. See 28 U.S. C. §§ 636 (a) (3), 3401 (b). In light of the fact that there are eight parties who will present argument and evidence on the Class B misdemeanor counts, the Court concludes the most efficient method of trying the misdemeanor counts is to conduct a trial to the Court.

What did she say?

Judge Brown cites two statutes, 28 US Code §§ 636 (a) and 3401 (b).  Adding to her discredit, there is no 28 US Code 3401, with or without the “(b)”.  However, that problem will be resolved, shortly.

First, however, let’s look at 28 US Code § 636(a):

(a) Each United States magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law –

(1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts;

(2) the power to administer oaths and affirmations, issue orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial, and take acknowledgements, affidavits, and depositions;

(3) the power to conduct trials under section 3401, title 18, United States Code, in conformity with and subject to the limitations of that section;

(4) the power to enter a sentence for a petty offense; and

(5) the power to enter a sentence for a class A misdemeanor in a case in which the parties have consented.

Those are the powers and duties of a magistrate (judge, commissioner, etc.).  You will note that reference is made to 18 US Code § 3142 and 18 US Code §3401(b).  As discussed in the previous article, 18 US Code is titled “Crimes and Criminal Procedures“.  So, once again, we have the word expressed, without equivocation, in the Constitution, “crime”.  In this instance, we see that a magistrate is limited in what he can rule upon, entering “a sentence for a petty crime“.  Of significance to this case, firearms are an element that will be presented in both felony and misdemeanor portions of the trial.  Is it possible that Judge Brown intends to apply a firearms enhancement to her verdict, which a magistrate would not be able to do?

By sleight of hand, or typing fingers, the Order states, “28 US Code §§ 636 (a) and 3401 (b).”  However, 28 US Code § 636(a) does tell us that the “3401(b)” is actually in Title 18, and 636 does not limit 3401 solely to paragraph (b).

Here is:

18 U.S.C. § 3401(b)

(b) Any person charged with a misdemeanor, other than a petty offense may elect, however, to be tried before a district judge for the district in which the offense was committed.  The magistrate judge shall carefully explain to the defendant that he has a right to trial, judgment, and sentencing by a district judge and that he may have a right to trial by jury before a district judge or magistrate judge.  The magistrate judge may not proceed to try the case unless the defendant, after such explanation, expressly consents to be tried before the magistrate judge and expressly and specifically waives trial, judgment, and sentencing by a district judge.  Any such consent and waiver shall be made in writing or orally on the record.

Within all of § 3401, there is no authority for a magistrate to apply any enhancements.  However, District Judge Anna J. Brown sat in an appeal of a magistrate’s imposition of restitution on a “petty offense” (United States v. Stanfill El).  She ruled that the restitution could be applied, even though the amount $3,468.03 was in excess of the constitutionally minimum $20.  The Ninth Circuit upheld her ruling.  I have to wonder if she believes that she can impose criminal penalties on a “petty offense”.  In fact, we all need to wonder about whether the federal judicial system has become the tool of tyranny and inquisition.