Unpublished Disposition, 875 F.2d 319 (9th Cir. 1987)

MEMORANDUM^* 

David Daniels and Dale Runyon appeal their convictions for driving under the influence of alcohol and other offenses committed in a portion of the Lake Mead National Recreation Area located in the state of Arizona. Appellants entered conditional pleas of guilty before a magistrate and their convictions were affirmed by the district court in Nevada. They seek to have their convictions vacated because they were tried in a state and district other than the one in which they committed their offenses, purportedly in violation of U.S. Const. art. III, Sec. 2, cl. 3, U.S. Const. amend. VI, and Fed. R. Crim. P. 18. We reverse.

* The facts are not in dispute. Daniels was arrested on April 6, 1985, in that portion of the Lake Mead National Recreation Area located in the state of Arizona. He was charged with a number of offenses, including disorderly conduct, interfering with an officer, failure to obey a lawful order, public drunkenness, reckless driving, and drunk driving. Dale Runyon was arrested on April 16, 1985, also in Arizona, for drunk driving and driving without a valid driver's license.

Daniels was taken to Las Vegas where he made an initial appearance before the United States Magistrate. On April 24, 1985, Daniels filed a motion to dismiss without prejudice asserting that the proper venue for the prosecution was in Arizona. The magistrate rejected this motion on July 24, 1985. Daniels then conditionally changed his pleas to guilty pursuant to Fed. R. Crim. P. 11(a) (2), and a presentence report was ordered. On October 3, 1985, Daniels was sentenced to two years of supervised probation, one hundred hours of community service, a $500 fine, a $25 assessment, and mandatory attendance at Alcoholics Anonymous meetings. Daniels then filed a timely notice of appeal to the district court on October 9, 1985, pursuant to 18 U.S.C. § 3402 (1982).

After Dale Runyon's arrest he was taken to a sheriff's substation in Bullhead City, Arizona, for a breath test and was released after a telephone conference with the United States Magistrate. He later appeared before Magistrate Sattler in Las Vegas. On August 27, 1985, Runyon conditionally changed his pleas of not guilty to guilty under a plea agreement with the government. Under this agreement, Runyon reserved the right to litigate the issues of venue and jurisdiction. On November 26, 1985, he was sentenced to two years of supervised probation, forty hours of community service, a $500 fine, and $75 in assessments. On December 4, 1985, Runyon timely filed his notice of appeal to the district court.

On May 29, 1986, the district court consolidated Runyon's and Daniels's appeals. On January 22, 1987, it affirmed appellants' convictions. Both Daniels and Runyon timely appeal. Runyon and Daniels are out of custody residing in Arizona on supervised probation. We have jurisdiction over both appeals. 28 U.S.C. § 1291 (1982). Whether Fed.R.Crim.Proc. prohibits the appellants from being tried in Nevada is a question of law and is reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir. 1984) (en banc).

II

The plain language of Fed. R. Crim. P. 18 mandates the reversal of Daniels' and Runyon's convictions.¹  Rule 18 states that " [e]xcept as otherwise permitted by statute or by these rules, the prosecution shall be had in the district in which the offense was committed." No exceptions apply to this case.

A magistrate has the authority to exempt a proceeding involving a "petty offense for which no sentence of imprisonment will be imposed" from the Federal Rules of Criminal Procedure. Rule 1(c) of the Rules of Procedure for the Trial of Misdemeanors before United States Magistrates (emphasis added). Since Rule 1(c) is inapplicable here, we need not decide which, if any, of the offenses at issue are "petty." Because Rule 1(c) refers to offenses for which no imprisonment will be imposed, we hold that this rule requires that the magistrate "make a determination before conviction that imprisonment will not be imposed." United States v. Ramirez, 555 F. Supp. 736, 740 (E.D. Cal. 1983). No such determination was made in either Daniels's or Runyon's case.

The United States argues that 28 U.S.C. § 631(a) provides a statutory exception to Rule 18 that allows the Districts of Arizona and Nevada to designate a magistrate for all of Lake Mead. Section 631(a) allows the judges of adjoining federal districts to designate a magistrate "to serve in one or more districts adjoining the district for which he is appointed." The use of the preposition "in" suggests that the shared magistrate is required to "ride circuit". This view is supported by Congress's consistent use of such language, which reappears in the same section (the district judges involved "shall specify the duties to be performed by the magistrate in the adjoining district or districts", id. (emphasis added)), and also in Sec. 636: "In an emergency ... a United States magistrate may be temporarily assigned to perform any of the [specified duties] ... in a judicial district other than the judicial district for which he has been appointed." 28 U.S.C. § 636(f) (emphasis added). This latter provision indicates that, even in emergencies, a magistrate from one district is "transferred" to another district, rather than authorized to hear cases brought to him or her from the other district. Id. Under this reading of the Magistrates Act, the magistrate for Las Vegas assigned to the Arizona portion of Lake Mead must travel there, at least until the Judicial Conference of the United States authorizes the District of Arizona to fill the magistracy already created for that section of the park. 16 U.S.C. § 460n-8 (1982).

Because we reverse the appellants' convictions on the basis of Rule 18, we need not address their constitutional challenges to their convictions. See United States v. Jenkins, 734 F.2d 1322, 1325 (9th Cir, 1983) ("a court should never anticipate constitutional law questions and never formulate a rule of constitutional law broader than that necessary to resolve the case before it").

The decision of the district court is REVERSED, and these cases are REMANDED for a dismissal without prejudice.

WIGGINS, Circuit Judge, concurring:

I concur in the judgment. Unlike the majority, I believe that the convictions should be reversed because of the clear violation of the constitutional command that the offenses must be tried in the State of Arizona. I am not persuaded that we may rest our conclusion upon Fed. R. Crim. P. 18. That rule purports to allow exceptions to the constitutionally required venue provisions of Article III. Although the majority does not find any exemption to apply, I cannot subscribe to the view that a rule of Court can overcome a clear constitutional mandate to the contrary.

A fuller amplification of my view that the results in these appeals is controlled by Article III of the Constitution is unnecessary because of the holding of the majority that Rules 18 is dispositive. Therefore, I simply concur in the judgment. See United States v. Jenkins, 734 F.2d 1322, 1325 (9th Cir. 1983), cert. denied, 469 U.S. 1217 (1985).