                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 06-30298
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CV-05-05826-FDB
SAHNEEWA TRIMBLE,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
          for the Western District of Washington
       Franklin D. Burgess, District Judge, Presiding

                 Argued and Submitted
           March 8, 2007—Seattle, Washington

                    Filed May 30, 2007

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
            Marsha S. Berzon, Circuit Judges.

               Opinion by Judge Berzon;
            Concurrence by Judge O’Scannlain




                           6493
                    UNITED STATES v. TRIMBLE                 6495


                          COUNSEL

Jerome Kuh, Assistant Federal Public Defender, Tacoma,
Washington, for the appellant.

Barbara J. Sievers, Assistant United States Attorney, Seattle,
Washington, for the appellee.


                           OPINION

BERZON, Circuit Judge:

   The Bill of Rights was ratified in 1791. The United States
produced its first automobile in 1877, and the first traffic
ticket issued in 1904.

   Fast forward to 2005: Sahneewa Trimble was issued sev-
eral traffic tickets, fairly serious ones, on a military base. She
believed that she was charged too much — more than other
drivers who did the same thing on federal property on the
same day. When Trimble appeared in court to plead guilty to
the violations, the magistrate judge dismissed two of the six
original citations but imposed a twenty-five dollar processing
fee for three of the remaining ones. Standard stuff, except that
some individuals, like Trimble, were charged the fee while
the others were not. Why? Because Trimble received a new
version of the citation notice and the fortunate others received
an older version. So what follows is a tale of two forms, old
and new. We reverse — demonstrating, again, that our Con-
stitutional principles protect against monetary injuries large
and small. See Harper v. Va. State Bd. of Elections, 383 U.S.
663, 664 n.1, 666 (1966) (striking down $1.50 poll tax);
6496                  UNITED STATES v. TRIMBLE
McGowan v. Maryland, 366 U.S. 420, 424 (1961) (consider-
ing a constitutional challenge to a five dollar fine).

                                    I.

   When a person has been convicted of a crime, including a
traffic offense, the court generally may impose “whatever
punishment is authorized by statute for his offense, so long as
that penalty is not cruel and unusual, and so long as the pen-
alty is not based on an arbitrary distinction that would violate
the Due Process Clause of the Fifth Amendment.” Chapman
v. United States, 500 U.S. 453, 465 (1991) (citations omitted).
Here, although the twenty-five dollar processing fee was
authorized by statute and was neither cruel nor unusual, Trim-
ble argues that it was imposed on her arbitrarily, and therefore
violates the equal protection principles incorporated into the
Fifth Amendment.1 See Bolling v. Sharpe, 347 U.S. 497, 500
(1954); Vance v. Bradley, 440 U.S. 93, 94-95 n.1 (1979). Her
claim cannot succeed, however, if we can imagine any ratio-
nal reason for the judge to treat Trimble differently because
she received a traffic ticket on a new form as opposed to an
old one. See FCC v. Beach Commc’ns, 508 U.S. 307, 313
(1993); United States v. Ellsworth, 456 F.3d 1146, 1150 (9th
Cir.), cert. denied, 127 S. Ct. 753 (2006). Fortunately for
Trimble, our imagination does not stretch that far.

                                   A.

   The facts of this case are unremarkable. Trimble received
six traffic tickets on July 25, 2005, after police stopped her
vehicle on the grounds of Fort Lewis Army Base. The officer
  1
   Although styled a “processing fee,” we treat the twenty-five dollars as
part of Trimble’s punishment. She incurred it only because she was deter-
mined to have broken the law. For the charged offenses on which she was
deemed innocent, she was not assessed the fee, even though the cost of
“processing” would have been the same. See United States v. Smith, 818
F.2d 687, 690 (9th Cir. 1987) (“A punitive measure designed to raise reve-
nue is still a punitive measure.”).
                   UNITED STATES v. TRIMBLE                 6497
on the scene issued the citations on a recently-modified ver-
sion of the District Court Violation Notice (“DCVN”), the
standard form used by federal agencies to issue misdemeanor
citations, checking the box to indicate that Trimble was
required to appear in court and could not pay a fine by mail.

   That same day, other federal officers who issued tickets for
similar petty offense traffic violations on federal property
used a different, older version of the DCVN. The old forms
and new forms were both in circulation at the same time due
to a simple, bureaucratic snafu — the government failed to
print enough new ones. The change in forms came in response
to the Consolidated Appropriations Act of 2005, Pub. L. No.
108-447, div. B, § 308, 118 Stat. 2809, 2895 (2004), which
authorized the Administrative Office of the U.S. Courts (AO)
to collect a processing fee from defendants to offset the costs
of managing petty offense cases in the federal courts. The AO
set the fee at twenty-five dollars and, in an attempt to imple-
ment it, modified the DCVN to reflect the fee. The new forms
were to replace the old ones by July 1, 2005. Many federal
agencies, however, were provided with insufficient supplies
and continued to use the old forms after July 1.

   Although the forms in circulation were different, they were
hardly easy to distinguish. Both included space for the usual
information — defendant’s name, violation, and vehicle
description — and both provided directions for contesting the
charge or admitting guilt. Again, like most traffic tickets, both
forms provided separate directions for the defendant if he or
she was required to appear in court. The only material differ-
ence between the forms, and the one presumably made to
implement the processing fee, was the addition of a line, “+
$25 Processing Fee,” to assist those defendants who could pay
their fine through the mail in calculating the amount they
owed. For those defendants like Trimble, who were alleged to
have committed petty offenses rather than mere infractions
and were therefore required to appear in court, the new and
6498                UNITED STATES v. TRIMBLE
old forms offered the same direction: “YOU MUST APPEAR
IN COURT.”2

   When Trimble did so, she pleaded guilty to four of the six
violations. The magistrate judge dismissed the remaining two
counts and imposed one hundred dollars in fines, a twenty-
dollar special assessment, and three twenty-five dollar pro-
cessing fees. Trimble objected to the processing fees. She
argued that they violated her equal protection and due process
rights, because the judge had not imposed them on other
defendants who appeared before him on the same day and
received similar citations covering the same time period. The
magistrate judge overruled the objection, and Trimble
appealed the fee to the district court. In that forum, the gov-
ernment conceded that the magistrate judge imposed the fee
only on defendants who received the new version of the
DCVN. The district court found nothing wrong with this
arrangement. It held that the distinction was rationally related
to legitimate government interests — namely, protecting
defendants’ privacy and generating revenue for the court sys-
tem. Trimble again appeals.

                                B.

   Before we review the reasons the magistrate judge may
have decided as he did, we should clarify why this question
is the appropriate one. Although this case is a case about two
forms, it is not — as the district court believed — a case about
the federal law enforcement officers’ use of those forms. That
is, it does not matter whether there was a good reason for the
officer who cited Trimble to use one citation form rather than
another. That question is irrelevant for the same reason it
would be irrelevant to ask whether the officer had a reason to
use a blue or black pen: The answer has no bearing on the
laws that applied to Trimble.
  2
   A copy of the new DCVN is appended to this opinion as Appendix A.
                    UNITED STATES v. TRIMBLE                  6499
   To be sure, the government argues as if its use of the forms
is particularly significant. Below, and in its briefs here, it
describes the bureaucratic bungle behind the shortage of new
tickets and explains why both old and new tickets were used
by different officers at the same time for the same infractions
occurring in the same location. All of this is besides the point.
Driving without insurance and failing to put a child in a seat-
belt, two of the charges against Trimble, carry specific fines,
regardless of the type of ticket one receives. So, too, does the
law authorize the court to impose a fee for every petty offense
processed, as Trimble’s offenses were, through the Central
Violations Bureau. See Consolidated Appropriations Act, div.
B, 118 Stat. at 2895. Although the AO created new forms to
correspond to its implementation of the change in law that
authorized the processing fees, that law applies to all petty
offenses processed in this manner, whether issued on a new
form or an old one, using blue ink or black.

                                II.

   We consider, then, why a court might impose different pen-
alties for similar traffic offenses solely because the defendants
received different style citation forms. The district court
offered two reasons, neither of which persuade us that imposi-
tion of the fee was anything but arbitrary and therefore irratio-
nal.

   First, privacy: The district court held that “the partial utili-
zation of the new forms occurs because of a legitimate gov-
ernment interest; namely, the interest in protecting
defendants’ personal information as the notice travels through
the mail.” This explanation is both mysterious and irrelevant.
Mysterious, because, while it purports to tell us why the gov-
ernment might rationally encourage officers to use the new
forms as they became available, it does not tell us how the
new form protected the offender’s privacy more than the old
one. More importantly, irrelevant — because defendants
6500               UNITED STATES v. TRIMBLE
charged with petty offenses are required to appear in court, so
they never send the forms through the mail anyway.

   Second, generating revenue: The district court went on to
hold that “implementing the new forms” was proper because
“collection of the processing fee as to some of the citations
written utilizing the new form would begin to offset the costs
of managing the cases processed through the Central Viola-
tions Bureau.” Here, again, the district court asked the wrong
question — why the forms were used — and so provided an
equally irrelevant answer. If accepted, the district court’s rea-
soning would allow discretionary imposition of fees on any
class or category, however random: Defendants issued cita-
tions on Wednesday must pay the fee, but not those cited on
Thursday? Defendants with odd-numbered tickets (or check-
ered shirts) must pay the fee, but those with even-numbered
tickets (or checkered pants) get off scot-free? In either case,
no doubt, collection of fees from some offenders but not oth-
ers would help offset the costs of managing the cases more
than not collecting the fees at all. But that truism does not
explain why everybody similarly situated — here, everybody
who had come to court to defend against a petty traffic
offense — did not have to pay; that policy would have raised
more money. And it does not explain why, if only some of the
offenders had to pay, it was the Wednesday violators, the odd-
number ticket holders, the wearers of checkered shirts — or
the recipients of the new form.

   Left to our own devices, we can imagine only one promis-
ing basis for treating defendants differently based on the form
they received: The new forms provided recipients with notice
of the fee, while the old forms did not, so the payment distinc-
tion serves due process ends. The government so argues. But,
as it turns out, that explanation cannot fly either, for two rea-
sons, one obvious and one less so.

   The new version of the DCVN does reference the twenty-
five dollar processing fee, while the old version does not.
                  UNITED STATES v. TRIMBLE               6501
According to the government’s argument, individuals like
Trimble who received the new form therefore were put on
notice that, if convicted of the petty offense, they would be
subject to pay that amount.

   But telling offenders after they have committed an offense
what the penalty is for doing so serves none of the usual due
process functions served by the notice requirement in criminal
law. That notice requirement ensures fairness, see Free
Speech Coal. v. Reno, 198 F.3d 1083, 1095 (9th Cir. 1999)
(requiring sufficient clarity in the criminal law to guide an
ordinarily intelligent person about what is prohibited conduct
and protecting against arbitrary government enforcement)
aff’d 535 U.S. 234 (2002), makes deterrence possible, see
Brown v. Baden (In re Yagman), 796 F.2d 1165, 1183-84 (9th
Cir. 1986) (explaining how notice of Rule 11 sanctions “ad-
ministers the paramount aim of deterrence”), and avoids ex
post facto application of criminal prohibitions, see Bouie v.
City of Columbia, 378 U.S. 347, 354-55 (1964). Telling an
alleged offender after the fact what the punishment will be if
he is convicted serves none of these purposes.

   Still, since we are being imaginative, we could amplify the
government’s argument so it runs something like this: Defen-
dants who received the new forms appeared in court prepared
to pay the processing fee. Conversely, defendants who
received an old version of the DCVN, which nowhere refer-
ences the fee, would not appear in court similarly prepared.
Caught by surprise, these defendants might delay court pro-
ceedings as they try to recalculate how much they owe the
government or find out whether they have an additional
twenty-five dollars in their checking accounts. To avoid this
potential reduction of courtroom efficiency, the magistrate
judge could rationally impose the processing fee only on
those prepared to pay it.

   However attenuated these supposed benefits of after-the-
fact notice of the processing fee, this explanation might be
6502                UNITED STATES v. TRIMBLE
enough to survive the extremely deferential rational basis
standard — were it not for the fact that the new DCVNs actu-
ally provide no notice of the processing fee to defendants like
Trimble. The new forms include three rows that read, from
top to bottom: “Forfeiture Amount,” “+ $25 Processing Fee,”
and “Total Collateral Due.” But these instructions apply only
to defendants who can pay their ticket through the mail and
need to calculate the amount they owe. For defendants like
Trimble, charged with petty offenses rather than infractions,
the new forms simply instruct that they “MUST APPEAR IN
COURT.” The new form — like the old — does not tell petty
offense defendants a thing about what their potential punish-
ment might be. (Apparently, the drafters of the form were not
worried about the petty offenders’ calculations or bank
account dilemmas.) As the reference to the processing fee
simply does not apply to defendants like Trimble, it cannot
possibly provide a basis for treating them differently. Instead,
all defendants appearing in court to answer for a petty offense
were left equally in the dark about whether they would have
to pay the fee.

   [1] The net result of our excursion into imaginative recre-
ation of possible justifications is that there is no rational, non-
arbitrary reason for the new form/old form distinction as
applied to petty offenders. As applied to Trimble, new form/
old form is no better a distinction than that between
Wednesday/Friday or odd/even. We conclude, consequently,
that the magistrate judge violated Trimble’s constitutional
rights by charging her more than other petty offenders for
offenses covering the same time period.

  The district court’s decision affirming the imposition of the
processing fees is therefore REVERSED and the fees are
VACATED.
                  UNITED STATES v. TRIMBLE              6503
O’SCANNLAIN, Circuit Judge, concurring in the judgment:

  I agree that no rational basis supports the discriminatory
imposition of processing fees in this case. However, the
majority opinion exceeds the grounds necessary to decide this
appeal. Accordingly, I concur only in the judgment.
6504   UNITED STATES v. TRIMBLE
            Appendix A
