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United States of America, Appellee, v. Ollie Juanita Miller, Appellant
United States Court of Appeals, Fourth Circuit. - 468 F.2d 1041
Argued Sept. 12, 1972.Decided Oct. 25, 1972
Robert G. Cabell, Jr., Richmond, Va., (court-appointed counsel), for appellant.
Rodney Sager, Asst. U. S. Atty. for Eastern District of Virginia (Brian P. Gettings, U. S. Atty., on brief), for appellee.
Before WINTER and BUTZNER, Circuit Judges, and MURRAY, District Judge.
BUTZNER, Circuit Judge:
Ollie Juanita Miller appeals from her conviction by a magistrate, affirmed by the district court, for unlawful concealment and possession of a firearm, in violation of Va.Code Ann. Sec. 18.1-269, assimilated by 18 U.S.C. Sec. 13. While we hold that the search of Mrs. Miller's handbag and the seizure of the firearm from within it were lawful, we reverse for failure of the magistrate to properly apprise Mrs. Miller of her right to a jury trial in the district court.
* Carrying a concealed weapon is a minor offense because the maximum punishment provided by the Virginia statute is confinement in jail for not more than 12 months and a fine of not more than $500.1 Mrs. Miller, therefore, was entitled to elect to be tried by a jury. Cf. Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); see United States v. Merrick, 459 F.2d 644, 646 (4th Cir. 1972) (dictum). She complains that she was not properly advised by the magistrate of this right, and the record supports her. The magistrate explained her option to be tried in the district court, but not her right to a jury trial.2
The Federal Magistrates Act requires the magistrate to "carefully explain" to a defendant charged with a minor offense that he has a right to a trial by a jury. So that there may be no misunderstanding about the importance of this explanation, the Act directs that the magistrate "shall not proceed to try the case unless the defendant, after such explanation, signs a written consent . . . ."3 This statute is amplified by the Federal Rules of Procedure for the Trial of Minor Offenses before United States Magistrates, which became effective January 27, 1971. Rule 2(b), which deals with minor offenses other than petty offenses, specifically directs the magistrate to "also explain to the defendant that he has a right to trial before a judge of the district court and a jury . . . ." Rule 2(c) provides that the consent must contain a waiver of "trial before a judge of the district court and a jury." As the legislative history of the Act clearly demonstrates, literal compliance with the magistrate's duty to explain the defendant's rights is required to validate the waiver.4
18 U.S.C. Sec. 3401(f) defines minor offenses (with exceptions not here pertinent) as "misdemeanors punishable under the laws of the United States, the penalty for which does not exceed imprisonment for a period of one year, or a fine of not more than $1,000 or both, . . ."
18 U.S.C. Sec. 1(3) defines a petty offense as "[a]ny 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, . . ."
The following extract is taken from the transcript of Mrs. Miller's arraignment before the magistrate:
[THE MAGISTRATE:] Mrs. Miller, will you stand please. An information has been filed against you by the United States Attorney that charges that on or about December 10, 1970, in the United States District Court for the Eastern District of Virginia, Richmond, Virginia, and within the jurisdiction of this Court, and within the special territorial jurisdiction of the United States, Ollie Juanita Miller did unlawfully carry about her person, hidden from the common observation, a pistol, to-wit: one Beretta 6.35 millimeter automatic, bearing serial number B94485, in violation of Section 18.1269 of the Code of Virginia, assimilated under Federal Law Title 18, United States Code, Section 13. You have the right to be tried in the United States District Court. You may elect to be tried before me here today. Have you discussed the matter of trial with your attorney?
DEFENDANT MILLER: To a point, yes.
[THE MAGISTRATE:] Do you wish to be tried in the District Court or the Magistrate Court?
DEFENDANT MILLER: I am not that familiar with Courts. (Several seconds of hesitation) I'll agree to be tried here.
[THE MAGISTRATE:] In this Court?
DEFENDANT MILLER: Yes.
[THE MAGISTRATE:] All right. Will you sign the form on the table before you please. (Defendant signed waiver of right to trial in District Court and electing to be tried in Magistrate Court.)
18 U.S.C. Sec. 3401(b) provides:
Any person charged with a minor offense may elect, however, to be tried before a judge of the district court for the district in which the offense was committed. The magistrate shall carefully explain to the defendant that he has a right to trial before a judge of the district court and that he may have a right to trial by jury before such judge and shall not proceed to try the case unless the defendant, after such explanation, signs a written consent to be tried before the magistrate that specifically waives both a trial before a judge of the district court and any right to trial by jury that he may have.
The House Report on the Magistrates Act, then Senate Bill 945, emphasized that a defendant's waiver of his right to a jury trial must be "knowledgable" and "intelligent":
The form signed by Mrs. Miller stated:
I, Ollie Juanita Miller, charged with unlawfully carrying about her person hidden from common observation a pistol, to-wit, one Beretta 6.35 millimeter automatic, a petty offense against the laws of the United States, in the Eastern District of Virginia, appearing before [a] United States Magistrate, who has fully informed me of my right to choose to be tried before a Judge of the United States District Court which has jurisdiction of the offense and explained to me the consequence of this consent, do hereby consent to be tried before the United States Magistrate on the charge which is stated above, and I hereby specifically waive both a trial before a Judge of the United States District Court and any right to trial by jury that I may have.
/s/ Ollie J. Miller