 Constitutionality of Allowing Punishment of Misdemeanor
            by a Sentence Exceeding One Year

T h e Fifth A m endm ent to the Constitution requires th at offenses punishable by im prison­
   m ent for m ore than one year be prosecuted by an indictm ent presented to a grand jury.
Proposed am endm ents to the L acey A ct, by w hich m isdem eanor violations o f the A c t
  could result in up to five years’ im prisonm ent if the defendant w ere designated a
  “special offender,” must be construed to require prosecution by indictm ent in all cases.

                                                                         March 30, 1981
    M EM ORANDUM O PIN IO N FO R T H E C H IE F, W IL D L IFE
   SECTION, LA N D A N D N A TU R A L RESOURCES D IVISION

   This responds to your request for our views regarding a proposed
amendment to the Lacey A ct (Act), 18 U.S.C. §43. According to
information you have provided us, the Safari Club International, an
organization of “sportsmen,” has proposed an amendment whereby
criminal violations of the Act would be misdemeanors, unless the de­
fendant were designated a “special offender.” A court could sentence a
“special offender” to a term o f imprisonment up to five years. You
have asked us to comment on the constitutionality of sentencing a
defendant to a felony penalty when the underlying violation is a misde­
meanor prosecuted by way of information rather than indictment. For
reasons explained below, we conclude that such a statutory scheme
would require that all offenses under the statute be brought before a
grand jury.
  The proposed amendment is patterned after the “dangerous special
offender” criminal statute, which authorizes a prosecutor in a felony
case to file a notice that the defendant is a “dangerous special of­
fender.” 18 U.S.C. § 3575(a). If, after the defendant is convicted by a
plea of guilty or otherwise, it appears at a hearing the defendant is a
“dangerous special offender,” an increased penalty may be authorized.
18 U.S.C. § 3575(b). T he proposed Lacey A ct amendment in question
here similarly would authorize an attorney prosecuting alleged violators
of the A ct to file a notice specifying that the defendant is a “special
offender.” A defendant could be adjudged a “special offender” if any
one of three conditions is met: (1) the defendant has been convicted for
three or more offenses involving illegal taking of fish and wildlife, or of
plants; (2) the defendant committed the violation as part of a pattern of
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criminal conduct which constituted a substantial source of his income
and in w hich he manifested special skill or expertise; or (3) the defend­
ant was engaged in a conspiracy with five o r more persons. Other than
increasing the threshold requirements for special offender status, these
categories are almost identical to the categories o f § 3575(c).
   T he Fifth Amendment provides in part as follows:
         N o person shall be held to answer for a capital, or
       otherwise infamous crime, unless on a presentment or
       indictment of a G rand Jury . . . .
W hen faced with the necessity of defining the words “otherwise infa­
mous crime,” the Supreme Court in 1886 looked for the answer in
English, Irish, and early American law, and concluded:
       [WJhether a man shall be put upon his trial for crime
       without a presentment or indictment by a grand jury of
       his fellow citizens depends upon the consequences to him­
       self if he shall be found guilty.

       . . . W hen the accused is in danger of being subjected to
       an infamous punishment if convicted, he has the right to
       insist that he shall not be put upon his trial, except on the
       accusation of a grand jury.
E x Parte Wilson, 114 U.S. 417, 423, 426 (1885). The Court decided that
a crim e punishable by imprisonment for a term of years at hard labor
was an infamous crime within the meaning of the Fifth Amendment. Id.
at 429. In a series of subsequent decisions, it was established that an
infamous crime is one punishable by imprisonment in a penitentiary or
at hard labor. See United States v. Moreland, 258 U.S. 433 (1922); In Re
Claasen, 140 U.S. 200 (1891); Mackin v. United States, 117 U.S. 348
(1886). Since imprisonment in a penitentiary may be imposed only if a
crim e is punishable by imprisonment exceeding one year, 18 U.S.C.
§ 4083, the rule has come to be stated that a crime is infamous if it is
punishable by imprisonment for more than one year. See Duke v. United
States, 301 U.S. 492 (1937).
   Rule 7(a) o f the Federal Rules o f Criminal Procedure gives effect to
this Fifth Amendment requirement by providing:
       An offense which may be punished by imprisonment for a
       term exceeding one year or at hard labor shall be pros­
       ecuted by indictment . . . [unless waived].
T he Rule does not enlarge the requirement of an indictment beyond the
“capital, or otherwise infamous crime” of the Fifth Amendment. It
simply incorporates the criteria which have been established by the
Supreme Court. Harvin v. United States, 445 F.2d 675, 678 (D.C. Cir.
1971).
   Applying these criteria to the question at hand, it is apparent that if
the defendant qualifies for treatment as a “special offender,” prosecu­
tion must be by indictment.1 The closest analogy to this situation we
found in decided cases is the lengthened sentence authorized for youth­
ful offenders under the Youth Corrections Act, 18 U.S.C. §§ 5005-5025.
Under that Act, a defendant under the age of 26 years may be commit­
ted to the custody of the Attorney General for a period up to six years,
even if the offense for which he is convicted is a misdemeanor. 18
U.S.C. §§4216, 5010(b), 5017(c). Many defendants prosecuted by way
of informations have challenged their convictions, alleging that they
were entitled to grand jury indictments. Those cases which have held
that an indictment is required include United States v. Ramirez, 556
F.2d 909 (9th Cir. 1976); 2 United States v. Davis, 430 F.Supp. 1263 (D.
Haw. 1977; United States v. Neve, 357 F. Supp. 1 (W.D. Wise. 1973),
affd, 492 F.2d 465 (7th Cir. 1974); United States v. Reef, 268 F. Supp.
1015 (D. Colo. 1967). Conversely, the District of Columbia Circuit
Court of Appeals ruled, in an en banc 6-4 decision, that an indictment is
not necessary for prosecutions under the Youth Corrections Act.
Harvin v. United States, 445 F.2d 675 (D.C. Cir. 1971). This ruling was
based on the fact that the purpose of the extended sentence for a
youthful offender was to insure proper treatment and was not a reflec­
tion of the prevailing views o f society as to the infamous or non-
infamous character of the crime. Id. at 678. It was also based on the
court’s finding that the Youth Corrections A ct does not permit a
sentence under it to be served in a penitentiary.3 Neither of these bases
is applicable to the proposed “special offender” amendment to the
Lacey Act. The increased penalty would reflect societal judgment of
the crime and the sentence probably would be served in a penitentiary.
   Even as to a defendant who does not qualify as a “special offender,”
an indictment may be required. If a defendant under this proposed
amendment did not satisfy one of the three conditions of “special
offender” status noted above, he or she could be imprisoned no more
than one year. The proposed amendment does not require, however,
that the facts justifying such status be alleged in the charging document
so the maximum sentence would not be initially apparent. Under some­
w hat different but analogous facts, the Supreme Court has required an
indictment. In Smith v. United States, 360 U.S. 1 (1959), the petitioner
was charged with a violation of the Federal Kidnapping Act, 18 U.S.C.
§ 1201, which was punishable by death if the victim was not liberated

   1 The mere designation of a crime as a felony or misdemeanor is not itself determinative. See E x
Parte Brede, 279 F. 147 (E.D.N.Y. 1922), a ffd sub nom. Brede v. Powers, 263 U.S. 4 (1923)
   2 This opinion was withdrawn when the court was later informed that an indictment had been filed.
United States v. Ramirez, 556 F 2d 909, 926 (9th Cir. 1976). In United States v. Indian Boy X, 565 F 2d
585 (9th Cir. 1977), the court points out that Ramirez was withdrawn and rules that juvenile
proceedings under Federal Juvenile Delinquency Act, 18 U S C . §§5031-5042 may be initiated by
information.
   3 This finding was disputed by the dissenting judges in Harvin and by the Ninth Circuit in Ramirez.

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unharmed. He had waived indictment and was prosecuted by informa­
tion. T he information did not state w hether the victim was released
harm ed or unharmed. T h e Court held that the waiver of indictment
was not valid.4 The C ourt’s reasoning is equally applicable to the
proposal here. The Court explained its reasoning as follows:
         Under the statute, that offense is punishable by death if
         certain proof is introduced at trial. When an accused is
         charged, as here, with transporting a kidnapping victim
         across state lines, he is charged and will be tried for an
         offense which m ay be punished by death. Although the
         imposition of that penalty will depend on whether suffi­
         cient proof of harm is introduced during the trial, that
         circumstance does not alter the fact that the offense itself
         is one which may be punished by death and thus must be
         prosecuted by indictment. In other words, when the of­
         fense as charged is sufficiently broad to justify a capital
         verdict, the trial must proceed on that basis, even though
         the evidence later establishes that such a verdict cannot
         be sustained because the victim was released unharmed. It
         is neither procedurally correct nor practical to await the
         conclusion of the evidence to determine whether the ac­
         cused is being prosecuted for a capital offense. For the
         trial judge must make informed decisions prior to trial
         which will depend on whether the offense may be so
         punished.
360 U.S. at 8. For similar reasons, the Court likely would conclude
here that w here an indictment is not waived, the government must
proceed by way of the grand jury.
   W e conclude that the Fifth Amendment would impose a constitu­
tional barrier against the use o f informations to prosecute violations
under this proposed amendment to the Lacey A ct.5

                                                           L   arry   L . S im m s
                                                 Acting Assistant Attorney General
                                                      Office o f Legal Counsel




   4 Indictment may not be waived in capital cases. See Fed. R. Crim. P. 7(a).
   5 You also ask w hether we have any experience with other statutes that might require misdemean­
ors to proceed by indictment. We d o not.

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