FACE Act Charge Limited to Six-Month Potential Sentence Did Not Require Jury Trial

US v. Lefemine: Lefemine planned to protest abortion by blockading the entry to a local Planned Parenthood clinic – he gave police advanced warning (and was arrested without incident). After he did so, he was charged with a violation of the Freedom of Access to Clinic Entrances Act (“FACE Act”). The Act allows both for a maximum term of imprisonment of one year and a limitation of the maximum sentence to six months for “an offense involving exclusively a nonviolent physical obstruction.” The indictment against Lefemine cited to the one-year penalty provision, but the Government “subsequently filed an amended penalty sheet” invoking the six-month limit. The Government also was able to amend the indictment to change the relevant statutory citations. The district court refused Lefemine’s request for a jury trial, convicted him after a bench trial, and sentenced him to 60 days in prison.

On appeal, the Fourth Circuit affirmed Lefemine’s conviction, concluding that he was not entitled to a jury trial. Noting that the Supreme Court has held that an offense with a six-month or less statutory maximum is “presumptively petty” and therefore not entitled to a jury trial, the court held that the Government’s amendment to the indictment (to which Lefemine did not object) controlled. Nor did the potential $10,000 fine for a FACE Act offense mean that it could not be a petty offense.