Stephen Haar appeals from an order of the federal district court denying his petition for a writ of habeas corpus. His petition asserts that New Mexico refused him a jury trial in violation of his federal constitutional rights.

* Mr. Haar was charged with two offenses, aggravated battery1 and criminal damage to property,2 both arising out of the same incident. The aggravated battery charge carried a maximum penalty of one year's imprisonment3 while the criminal damage to property charge carried a maximum sentence of six months.4 The case was tried in the magistrate court of Bernalillo County, New Mexico, where the defendant was provided a jury trial pursuant to the local court rules.5 The jury acquitted Mr. Haar of the aggravated battery charge but found him guilty of the lesser included offense of simple battery, a crime that carried a maximum penalty of six months' imprisonment.6 The jury also found him guilty of criminal damage to property. The magistrate imposed two consecutive sentences of ninety days' imprisonment for the crimes.

New Mexico law provides that a criminal defendant who is convicted in the magistrate court is entitled to appeal through a trial de novo in the district court.7 Mr. Haar exercised this right to retrial and requested that his case again be heard by a jury. The district court denied this request and reconvicted Mr. Haar of simple battery and criminal damage to property, sentencing him to two concurrent terms of six months' imprisonment.

Mr. Haar sought review of the district court conviction in the New Mexico Court of Appeals. State v. Haar, 94 N.M. 539, 612 P.2d 1350 (Ct.App.1980). He claimed that the sixth amendment of the Constitution, as applied to the states through the fourteenth amendment, entitled him to a jury in the district court's trial de novo. The court of appeals rejected this claim. It determined that under the retrial provisions of New Mexico law, the defendant could not receive a sentence in the district court's proceedings in excess of that imposed by the magistrate. 94 N.M. 540-41, 612 P.2d at 1351-52. It apparently reasoned that since the defendant was subjected to no greater jeopardy in the de novo proceedings than in the magistrate court, he was not entitled to be tried by a jury again. 94 N.M. at 540, 612 P.2d at 1351. In reaching this result, the court noted that the two concurrent six-month sentences imposed by the district court represented an impermissible enhancement of the two consecutive ninety-day sentences imposed by the magistrate. 94 N.M. at 542, 611 P.2d at 1353. The court of appeals therefore remanded the case for a reduction in sentence, and the district court resentenced the defendant to two concurrent terms of ninety days. The defendant's petitions for a writ of certiorari to the New Mexico Supreme Court and to the United States Supreme Court were both denied. Haar v. State, 94 N.M. 674, 615 P.2d 991 (1980); Haar v. State, 449 U.S. 1063, 101 S. Ct. 787, 66 L. Ed. 2d 606 (1980).

In the habeas petition before us, Mr. Haar reasserts his claim that he was constitutionally entitled to a jury trial in the district court. He argues that since he faced conviction in the district court for two crimes arising out of the same transaction, and since the aggregate of the potential sentences exceeded six months, he was entitled to a jury trial. In responding to this argument, we examine the Supreme Court's interpretation of the constitutional right to a jury trial.

* The sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ...." U.S. Const. amend. VI. In Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), the Supreme Court concluded that "trial by jury in criminal cases is fundamental to the American scheme of justice," and accordingly held that "the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which--were they to be tried in a federal court--would come within the Sixth Amendment's guarantee." 391 U.S. at 149, 88 S.Ct. at 1447 (footnote omitted).8

In Duncan, the Court noted that "there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States." 391 U.S. at 159, 88 S.Ct. at 1452 (footnote omitted). The Court cited a number of its past decisions that limited the constitutional right of jury trial to prosecutions involving crimes that would have been considered serious infractions at the time of adoption of the Constitution.9 It then explained that "the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment." 391 U.S. at 159, 88 S. Ct. at 1452. The Court noted that "[t]he penalty authorized by the law of the locality may be taken 'as a gauge of its social and ethical judgments.' " 391 U.S. at 160, 88 S.Ct. at 1453 (quotingDistrict of Columbia v. Clawans, 300 U.S. 617, 628, 57 S. Ct. 660, 663, 81 L. Ed. 843 (1937)). In this regard, the Supreme Court stated,

In determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial, we are counseled by District of Columbia v. Clawans, supra, to refer to objective criteria, chiefly the existing laws and practices in the Nation.

319 U.S. at 161, 88 S. Ct. at 1453. Thus, the Court apparently adopted an approach suggested in a law review article by the future Justice Frankfurter, evaluating the right to a jury trial primarily on the basis of the opprobrium that society attaches to the crime charged, as measured in part by the potential penalty that might be imposed. See Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917 (1926).10

In Duncan, the Supreme Court recognized that it was necessary to draw a line in the spectrum of crime, separating petty offenses from serious infractions. 391 U.S. at 160-61, 88 S.Ct. at 1453. In Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970), the Court drew that line. A majority concluded that any crime in which a defendant faced a prison sentence in excess of six months constituted a "serious offense." 399 U.S. at 69, 90 S.Ct. at 1888.11

The plurality opinion of Justice White reiterated the Court's reliance on "objective criteria reflecting the seriousness with which society regards the offense, ... the most relevant such criteria being the severity of the maximum authorized penalty." 399 U.S. at 68, 90 S.Ct. at 1888. The plurality noted that virtually every court in the nation provides a jury trial for crimes that entail a potential penalty of greater than six months, and therefore concluded, "This near-uniform judgment of the Nation furnishes us with the only objective criterion by which a line could ever be drawn--on the basis of the possible penalty alone--between offenses that are and that are not regarded as 'serious' for purposes of trial by jury." 399 U.S. at 72-73, 90 S.Ct. at 1890 (footnote omitted).

In drawing the line at six months, the plurality noted that the division "attach[es] different consequences to events which, when they lie near the line, actually differ very little." 399 U.S. at 73, 90 S.Ct. at 1890. The plurality then stated,

Indeed, the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or "petty" matter and may well result in quite serious repercussions affecting his career and his reputation. Where the accused cannot possibly face more than six months' imprisonment, we have held that these disadvantages, onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications. We cannot, however, conclude that these administrative conveniences, in light of the practices that now exist in every one of the 50 States as well as in the federal courts, can similarly justify denying an accused the important right to trial by jury where the possible penalty exceeds six months' imprisonment.

399 U.S. at 73-74, 90 S. Ct. at 1890-91 (footnote omitted). Thus, while the plurality examined objective criteria in resolving the reach of the constitutional right to a jury trial, it also recognized that the actual penalty that will be imposed is of primary importance to the defendant. The plurality left unclear, however, the relevance of this "subjective" factor to the constitutional calculus of the right to a jury trial.12

Both Duncan and Baldwin examined the constitutional right to a jury trial that arises when a defendant is charged with a single offense. The instant case involves the right to a jury trial when a defendant is charged with multiple, but admittedly petty, offenses arising out of the same transaction.13 The Supreme Court has not resolved the scope of the right to a jury trial under these circumstances.14 However, the Tenth Circuit examined this issue in United States v. Potvin, 481 F.2d 380 (10th Cir.1973).

Potvin involved two defendants who each faced two petty offense charges arising out of the same incident. The petty offenses carried possible sentences of six months each. The defendants demanded and were denied a jury trial, and upon conviction, they appealed to this court. We stated that "the defendants can view as no less serious a possible penalty of a year in prison when charged with two offenses arising out of the same act, transaction, or occurrence, than if charged with one offense having a potential penalty of one year's imprisonment." 481 F.2d at 382. We held that accordingly they were entitled to a jury trial. 481 F.2d at 383.

In this appeal, the State does not challenge the holding of Potvin. Indeed, this panel is itself bound by Potvin 's holding unless the decision is overruled by the en banc court. Instead, the State argues that Potvin is inapposite in Mr. Haar's case.15 Mr. Haar was charged with two petty offenses in the district court, each carrying a potential sentence of six months' imprisonment. However, the New Mexico courts concluded that in Mr. Haar's trial de novo he could receive no greater sentence than the 180 days imposed by the magistrate. The State argues that Potvin does not require a jury trial in the de novo proceedings since Mr. Haar was not actually facing the possible imposition of a sentence in excess of six months. In considering this argument, we examine the rationale underlying the Potvin decision.

Potvin implicitly recognizes that modern criminal codes contain proscriptions that are far more complex, detailed, and extensive than the criminal law that existed at the time of the adoption of the Constitution. See Duncan, 391 U.S. at 188, 88 S.Ct. at 1469 (Harlan, J., dissenting).16 In particular, it recognizes that, because modern criminal codes permit multiple charges to flow from a single discrete act of criminality, a criminal prosecution can threaten a defendant with the consequences of a serious offense, even though the defendant is not charged with an offense deemed serious under Duncan or Baldwin. Thus, strictly applying the serious offense definition may not protect the defendant from an oppressive prosecution.17 Potvin addresses this problem by identifying the "act, transaction or occurrence" that underlies the criminal charges. In determining the right to a jury trial, it looks to the aggregate penalty that could result from the various charges arising out of a discrete criminal transaction. However, the Potvin opinion does not reveal whether the right to a jury trial should be determined on the basis of the potential penalties provided in the statutory definition of the crimes, or on the basis of the actual penalties faced by the defendant. The choice between the "objective" penalty provided by statute and the "subjective" penalty actually faced by the defendant determines how Potvin is applied in this case. Both choices have merit in terms of the values that Potvin seeks to protect.

A determination of the right to a jury trial on the basis of the aggregate of the statutorily prescribed penalties imparts a pragmatic temper to the Supreme Court's concept of a "serious offense." By treating the entire criminal act, transaction, or occurrence, rather than its constituent offenses, as the relevant determinant of the seriousness of the crime, the approach comports with both the realities of multiple-crime charging and the language of the sixth amendment, which guarantees the right to a jury trial in the context of "criminal prosecutions."18 It also comports with the central purpose of the jury, protecting the citizen from governmental oppression, because it assures that a jury trial is available when a defendant faces sentences that, in aggregate, are potentially oppressive. Moreover, the approach is consistent with Duncan 's specification that objective criteria be used in determining the seriousness of the crime. The aggregate of the statutorily prescribed penalties provides the objective indicia of the opprobrium that society attaches to the entire criminal act and is thus the appropriate measure of the act's seriousness. Applying this objective measure, we should determine Mr. Haar's right to a jury trial by the aggregate of the two six-month sentences that New Mexico prescribes for the offenses constituting the criminal incident. The twelve-month aggregate potential penalty, rather than the 180-day maximum sentence that Mr. Haar actually faced, reflects society's moral judgment of the whole of his criminal act. Thus, under an objective measure of the aggregate penalty, Mr. Haar would be entitled to a jury trial.

Alternatively, the right to a jury trial for aggregate petty offenses might be based on the aggregate penalty that the defendant actually faces at the commencement of the trial. Rather than broadening the definition of a "serious offense," this approach effectively recognizes a corollary to that concept, establishing a right to a jury trial where a defendant faces the consequences, as well as an actual charge, of a serious offense. Like the objective measure, this subjective approach views multiple charges realistically, treating the discrete criminal transaction, rather than the particular charged offenses, as the determining factor of the right to a jury trial. By focusing on the potential penalty actually faced by the defendant, the approach ensures that a jury trial is still available in all cases where the defendant is actually threatened with a serious penalty, regardless of the objective seriousness of the individual offenses charged. The approach thus protects the defendant from vindictive prosecution, interposing the jury between the government and the defendant in all cases where there is a risk of serious punishment and a consequent possibility of prosecutorial abuse. It directly embraces the principle value identified by Duncan as underlying the right to a jury trial: the prevention of oppressive prosecutions. See 391 U.S. at 156, 88 S.Ct. at 1451.19 Since oppressive prosecutions typically entail the threat of excessive punishment, it is appropriate to use the actual penalty faced by the defendant at the commencement of the trial as the measure of the right to a jury trial; clearly, if the defendant faces multiple charges at trial but does not actually face a serious penalty, the risk of prosecutorial abuse is small.20 Applying this subjective standard to the instant case, we should determine Mr. Haar's right to a jury trial on the basis of the 180-day maximum sentence that he actually faced in the trial de novo, rather than on the basis of the potential penalties that the New Mexico statutes specify. Under this subjective standard, Mr. Haar would not be entitled to a jury trial.

We are thus faced with choosing between an objective and a subjective measure of aggregated criminal penalties in determining the right to a jury trial. In choosing between these two interpretations of Potvin, we note that the case has sparked considerable debate. Compare Maita v. Whitmore, 508 F.2d 143, 146 (9th Cir.1974), cert. denied, 421 U.S. 947, 95 S. Ct. 1676, 44 L. Ed. 2d 100 (1975) (rejecting Potvin ), with United States v. FMC Corp., 428 F. Supp. 615, 620 (W.D.N.Y.1977), aff'd on other grounds, 572 F.2d 902 (2d Cir.1978) (following Potvin ). See generally Annot., 26 A.L.R.Fed. 736 (1976); Comment, Aggregation of Sentences: Obtaining Jury Trials for Petty Offenders, 59 Iowa L.Rev. 614 (1974).21 Moreover, we recognize that neither the objective nor the subjective interpretation of Potvin can be precisely squared with the Supreme Court's holdings in Duncan and Baldwin. The objective approach results in a significant broadening of the concept of a "serious offense," looking beyond the particular offenses charged to the actual criminal activity that the aggregated charges represent. The subjective approach on the other hand departs from the use of objective criteria--the statutorily prescribed penalties for the offenses charged--in analyzing the right to a jury trial.22 These incongruities arise because the issue we faced in Potvin, and must face again now, was not present in Duncan and Baldwin. Duncan and Baldwin do not discuss the effect of aggregated charges on the right to a jury trial. In interpreting Potvin, we must extend the Supreme Court's reasoning to an area yet uncharted by its precedents.

While we find the arguments in favor of the objective interpretation of Potvin appealing, we conclude that an expansion of the definition of a "serious offense" is a matter better left to the Supreme Court. Furthermore, given the absence of Supreme Court guidance on this issue, we prefer the interpretation that more narrowly confines the impact of Potvin on state courts. Accordingly, we adopt the subjective interpretation. We hold that a defendant is entitled to a jury trial for multiple petty offenses arising out of the same act, transaction, or occurrence only if he is actually threatened at the commencement of trial with an aggregate potential penalty of greater than six months' imprisonment. Accord United States v. Smyer, 596 F.2d 939, 942 (10th Cir.1979). Since New Mexico law ensured that Mr. Haar would receive an aggregate sentence in his trial de novo of no more than 180 days, Mr. Haar is not entitled to a jury trial.23

We hold that the defendant was not constitutionally entitled to a jury trial under the Supreme Court's decisions in Duncan v. Louisiana and Baldwin v. New York, or under our decision in United States v. Potvin. The order of the district court denying the petition for a writ of habeas corpus is affirmed.