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1430

Jury Trial in Civil Action—18 U.S.C. § 35(a)

Defendants in civil actions under 18 U.S.C. § 35(a) are entitled to trials by jury. See Hepner v. United States, 213 U.S. 103, 115 (1909) (dictum); Orenstein v. United States, 191 F.2d 184 (1st Cir.1951). However, where undisputed testimony in a civil penalty case establishes that the defendant committed the offense, the court may direct a verdict in the government's favor. See Hepner, supra, at 105-15; cf. United States v. Grannis, 172 F.2d 507, 513 (4th Cir.1949). The same rule will operate on behalf of the defendant where the testimony clearly absolves him/her of the charge. See Hepner, supra, at 112 (dictum). If the jury returns a verdict for the government, the judge will fix the amount of the penalty. See Missouri, K. & T. Ry. v. United States, 231 U.S. 112, 119-20 (1913) (penalty as "deterrent not compensation"). For a discussion of some constitutional considerations that may be involved in civil penalty cases, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 167-70 (1963).

[cited in USAM 9-63.200; USAM 9-63.251]