Criminal Law Blog

The en banc Court holds that defendants charged with deportable misdemeanors are entitled to jury trials.

Bado v. United States (en banc opinion) (decided June 21, 2018)

Players: En Banc Panel: Chief Judge Blackburne-Rigsby, Associate Judges Glickman, Fisher, Thompson, Beckwith, and Easterly, and Senior Judges Washington and Ruiz. Opinion by Judge Ruiz. Concurrences by Judge Washington and Judge Thompson. Dissent by Judge Glickman, joined by Judge Fisher. Dissent by Judge Fisher, joined by Judge Glickman. Alfred Carry and Moses Cook, D.C. Law Students, for Mr. Bado. PDS and Capital Area Immigrants‘ Rights (CAIR) Coalition, as amici curiae, in support of Mr. Bado. Motions judge: Honorable Jennifer M. Anderson. Trial judge: Honorable Stuart G. Nash.

Facts: Appellant, Mr. Jean-Baptiste Bado, fled Burkina Faso and applied for asylum in the U.S.

His asylum proceedings were halted when, in 2011, he was charged with three counts of misdemeanor sexual abuse of a minor. If convicted, he would be barred from receiving asylum and removed from the United States. Appellant then pleaded not guilty and demanded a jury trial. However, because a conviction for misdemeanor sexual abuse of a minor did not expose appellant to a sentence of more than 180 days in jail or a fine over $1000, the court denied his demand. At a bench trial, appellant testified in his own defense and questioned the credibility of the complainant. He was then acquitted of two of the three charges, but sentenced to 180 days in jail and ordered to pay $50 to the Crime Victims Compensation Fund. The U.S. then commenced deportation proceedings against him because of the conviction.

In 2015, a divided panel of the Court of Appeals reversed the conviction after concluding that appellant’s right to a jury trial had been violated. The government then sought rehearing en banc that was granted, which resulted in the panel’s opinion being vacated. You can read about the panel's decision here and the grant of rehearing en banc here.

Issue: Was Mr. Bado entitled to a jury trial for a charge carrying a maximum penalty of six months or less, when a conviction for that charge also carried the threat of deportation?

Holding: Yes. “The Sixth Amendment entitles a defendant to a jury trial if he is charged with a deportable offense, even if the maximum period of incarceration does not exceed six months.”

Writing for the en banc majority, Senior Judge Ruiz explained that, in the United States, an individual is only entitled to a jury trial under the Sixth Amendment when charged with a “serious” offense. Because exposure to incarceration usually is the clearest indicator of the seriousness of an offense, a crime with the possibility of punishment of more then six months incarceration automatically qualifies as a serious offense and requires a jury trial. However, the Court established that the presumption that an offense with a penalty of less than six months incarceration is a petty offense—not requiring a jury trial—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.’” Blanton v. City of N. Las Vegas, 489 U.S. 538, 543 (1989). In Blanton, the Supreme Court concluded that the possibility of suspension of a license and mandatory alcohol abuse courses for a driving under the influence conviction were not “significant” enough to render the offense a serious one for jury trial purposes.

Applying a Blanton analysis, the DCCA began with the presumption that misdemeanor sexual abuse of a minor was a petty offense for Sixth Amendment purposes since it had a 180-day maximum exposure to incarceration. But by noting there “is no comparison between the penalty of deportation and the statutory penalties considered in Blanton,” the Court concluded that Mr. Bado overcame the pettiness presumption by demonstrating that a 180-day jail sentence that also resulted in his placement in deportation proceedings was a serious offense. The “forced physical separation” of deportation is “considered by many immigrants to be worse than incarceration,” as deportation would result in the accused being separated from his family, exposed to poverty and violence in his home country, and barred from reentry for at least ten years per the U.S. immigration code. As the Court explained, “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.” “[W]ith all the grave consequences that [removal] entails,” the “loss is so great as to be unquantifiable.”

The majority disagreed with the government’s contentions that deportation is not a penalty for a criminal offense; that removal should not be considered because it is a penalty imposed by Congress, not the D.C. Council, which created the offense; that deportation is irrelevant because it is not punishment; and that D.C. courts are not competent to determine the deportation consequence of a criminal conviction. The DCCA believed that all of the government’s arguments diverged from a “straightforward application of a Blanton analysis that includes the penalty of deportation.” As the Court spelled out, a Blanton analysis focuses on the “possible” statutory penalties that attach to a conviction, and did not distinguish between penal and civil penalties, while also disagreeing with the government’s argument that deportation is not a penal penalty. The Court also stated that the Blanton analysis looks at the possible penalties to the accused, from the accused’s point of view—meaning it was irrelevant here that a noncitizen in appellant’s situation would have the right to a jury trial where a citizen would not.

The DCCA also disagreed with the government’s contention that, because deportation is a product of federal law and not local law enacted by the D.C. Council, it does not factor into the jury-trial analysis. The DCCA instead held that the key is penalties enacted by “state action,” and in these circumstances, Congress “is the only legislative body that can prescribe the penalty of removal for a criminal conviction.” Lastly, the majority found the government’s reliance on application of the impact of deportation in non-Sixth Amendment situations, such as when it had been considered for double jeopardy or ex post facto purposes, to be unpersuasive. The Court stated that in this situation, the focus is not on a threshold question whether the proceeding is criminal—which would not apply to deportation proceedings—but what penalties flow from a conviction in a criminal case, which includes "collateral" consequences such as deportations.

And, to the extent that future courts may have difficult applying the holding of this case, the majority explained, “the difficulties that the government fears may come to pass in some other case are too remote and of insufficient import to outweigh the loss of the constitutional right to a jury trial.”

Judge Washington’s concurrence: Judge Washington noted the disparity between jury-trial rights for citizens and noncitizens. But instead of finding that a reason to limit the right to a jury trial, Judge Washington implored the D.C. Council to expand the right. Noting that D.C. is in the minority of jurisdictions that do not afford jury trials whenever a penalty of incarceration is at stake, Judge Washington urged the Council to “reconsider its decision to value judicial economy above the right to a jury trial. Restoring the right to a jury trial in misdemeanor cases could have the salutary effect of elevating the public’s trust and confidence that the government is more concerned with courts protecting individual rights and freedoms than in ensuring that courts are as efficient as possible in bringing defendants to trial.”

Judge Thompson’s concurrence: Judge Thompson, concurring in the judgment, stated that there is “no basis” for the majority’s conclusion that the penalty of deportation necessarily reflects a legislative determination that those offenses are serious. This is especially true because Congress has authorized “cancellation of removal” for noncitizens convicted of certain deportable offenses, indicating that at least some deportable offenses may not be that serious. However, in this case, because Mr. Bado was convicted of an "aggravated felony" under immigration law (a conviction for which no relief is possible in the immigration courts), Judge Thompson believed that Mr. Bado was entitled to a jury trial.

Judge Fisher’s dissent, joined by Judge Glickman: Judge Fisher considered it a “startling result” that a citizen charged with misdemeanor sexual abuse of a child is not entitled to a jury trial, while a noncitizen charged with the same crime is. Judge Fisher suggested that the “seriousness” of the offense cannot depend on the identity and individual circumstances of the defendant. Judge Fisher also thought that “we must keep firmly in mind that we are dealing here with two different legislatures”:  criminal statutes enacted by the D.C. Council, and immigration laws enacted by the U.S. Congress.

Judge Glickman’s dissent, joined by Judge Fisher: Judge Glickman added an additional point: the pettiness presumption of Blanton can only be overcome if the defendant shows that the legislature that actually enacted the criminal offense determined that additional civil penalties should be attached to the offense. Here, the U.S. Congress’s determination that an offense is deportable has no bearing on the D.C. Council’s view about the seriousness of misdemeanor sexual abuse of a minor.

Of note

  • In any case against a noncitizen charged with a 180-day misdemeanor, be certain to check if it is a deportable offense, and if so, advise your client that she may demand a jury trial.
  • Although Bado focuses on deportation, its rationale applies to all “severe” collateral consequences of conviction, which can include sex offender registration. The majority states that the consequence does not have to be “punitive” to count toward the jury trial right, and Senior Judge Washington’s concurrence states that many collateral consequences are severe enough to trigger the right to a jury trial. 

KC Bridges, guest blogging.

Read the full opinion here.