Impounded
| Citation | 117 F.3d 730 |
| Decision Date | 30 June 1997 |
| Docket Number | No. 96-7781,96-7781 |
| Parties | IMPOUNDED (Juvenile R.G., Appellant). |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Thurston T. McKelvin, Federal Public Defender, Melody M. Walcott (argued), Assistant Federal Public Defender, Christiansted, St. Croix, U.S. VI, for Appellant.
James A. Hurd, Jr., United States Attorney, Richard M. Prendergast (argued) Assistant United States Attorney, Christiansted, St. Croix, U.S. VI, for Appellees.
Before: BECKER, ROTH, and WEIS, Circuit Judges.
This appeal by a juvenile defendant charged with a number of serious crimes challenges the authority of the United States government to prosecute him in federal court. The governing statute is 18 U.S.C. § 5032, which establishes a two-step procedure governing the transfer of juveniles from state to federal court for criminal prosecution. The appeal presents the important question, which has divided the circuits, whether the certification decision of the United States Attorney General or her designee--the first-step in the transfer proceedings--is reviewable by a federal court.
Because we believe that the core of the decision to certify is one left to the discretion of the federal prosecutor, we follow the majority circuit view and hold that we have jurisdiction to review only limited aspects of the certification decision, including whether the certification is proper in form, whether it was made in bad faith, and the purely legal question whether the juvenile has been charged with a crime of violence.
Our conclusion as to our limited ability to review a certification decision effectively resolves the question whether the prosecutor made a proper certification here, for the non-reviewable facets of the certification (that the Virgin Islands refuses to assume jurisdiction and that the case presents a substantial federal interest) are sufficient and sustain the certification.
The second-step question, whether the district court properly allowed the transfer of the juvenile to adult status under the so-called mandatory transfer provisions of § 5032, turns on whether the possession crime with which the juvenile was charged, see V.I.Code Ann. tit. 14, § 2251(a)(2), involves a substantial risk of the use of physical force. Because the possession crime includes as an element of the offense the intent to use a dangerous weapon, and the commission of the crime will therefore present a substantial risk that physical force will be used, we hold that the possession crime satisfies the requirements of the § 5032 mandatory transfer provisions. The order of the district court transferring the juvenile's case to federal court will thus be affirmed.
In order to facilitate the understanding of the issues, we first describe the provisions in 18 U.S.C. § 5032 pertaining to the transfer of a juvenile from state authorities to a federal district court for criminal prosecution as an adult. Transfer proceedings are governed by a two-step process. The first step is certification by the Attorney General or her designee, normally a United States Attorney. The certifying party must certify either that
(1) the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, (2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged is a crime of violence that is a felony or [is] an offense [ enumerated in this paragraph], and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.
18 U.S.C. § 5032. 1
Contingent upon a proper certification, the federal prosecutor may move in the appropriate district court for a transfer of the juvenile to adult status--the second step in the transfer process. Section 5032 envisions two avenues by which a transfer may occur. First are the so-called permissive transfer provisions. Under the permissive transfer provisions, the district court may transfer a juvenile "if such court finds, after hearing, such transfer would be in the interest of justice." Id. To assess whether a transfer would be "in the interest of justice," the statute directs the court to examine:
the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile's prior delinquency record; the juvenile's present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts; the availability of programs designed to treat the juvenile's behavioral problems.
The second avenue by which a juvenile may be transferred to adult status is by way of the mandatory transfer provisions. Pursuant to § 5032, a district court shall transfer the juvenile if three factors are present: (1) the juvenile committed the act underlying the charged offense after his sixteenth birthday; (2) the charged offense is a felony that has as an element the use of physical force or by its nature involves the risk of physical force, or is an offense specifically enumerated in the paragraph; and (3) the juvenile has previously been found guilty of a crime that would satisfy factor (2). Id.
The core offense involves a carjacking. In January 1995, a young woman drove to her parents' house to pick up her sister. Just after the sister entered the car outside the house, two masked men, one of whom was armed, approached the car and demanded the keys. The women complied and ran back inside the house. Their father then went outside, but returned immediately to the house when he heard a gun shot. The two men drove off. The police located the car the following day; a stereo system and a cellular phone had been stolen from the car.
One of the young women named the juvenile as her assailant. The Virgin Islands police located the juvenile, arrested him, and charged him with robbery, assault, and possession of a firearm during the commission of a crime of violence. The Territorial Court of the Virgin Islands ordered that the juvenile be prosecuted in that court as an adult. Then, pursuant to an agreement with the United States Attorney for the Virgin Islands, the Government of the Virgin Islands declined to prosecute the juvenile. Shortly thereafter, the United States Attorney filed an Information in the District Court of the Virgin Islands charging the juvenile with carjacking, robbery, use of a firearm during a crime of violence, and possession of a firearm during a crime of violence. The United States Attorney also made the requisite certification under § 5032, and moved under both the mandatory and permissive provisions of § 5032 to transfer the juvenile to adult status.
The district court held a hearing to determine whether transfer to adult status was appropriate. The court concluded that all three elements of § 5032's mandatory transfer provisions were met: the juvenile was more than sixteen years of age when the crime was alleged to have been committed; each of the crimes for which he was charged had as an element "the use, attempted use, or threatened use of physical force ... or ... involved a substantial risk that physical force [may be used] against ... another"; and the juvenile had previously been found guilty of a violent crime. The court therefore ordered the transfer of the juvenile to adult status.
The juvenile appeals from the district court's transfer order. Included in that appeal is a challenge to the § 5032 certification. We will assume that the § 5032 certification is a prerequisite to the district court exercising jurisdiction over the transfer hearing. Therefore, whether the district court properly exercised jurisdiction over the § 5032 transfer hearing turns on whether the certification was proper. Although the order from which the juvenile appeals is not "final" for the purposes of 28 U.S.C. § 1291 or 48 U.S.C. § 1613a(c), we have appellate jurisdiction pursuant to the collateral order doctrine. See In re A.M., 34 F.3d 153, 155-56 (3d Cir.1994).
As a threshold matter, we must determine whether we have jurisdiction to review the prosecutor's § 5032 certification. Although this is an issue of first impression for us, we do not write on a blank slate, for a number of Courts of Appeals have already published opinions on the point, from which we draw instruction. 2
The seminal case is United States v. Vancier, 515 F.2d 1378 (2d Cir.1975). In Vancier, the United States Attorney had certified to the district court that no appropriate state court had jurisdiction over the defendant. 3 On appeal, Vancier argued that the certification was improper because there existed an "appropriate" state court with jurisdiction over him. The court noted, however, that § 5032 does not explicitly provide for judicial review of a certification, nor does it provide articulable standards against which a court could measure whether an appropriate state court could exercise jurisdiction over the juvenile. See id. at 1380. It concluded that, although the statute provides some limitations on the prosecutor's discretion to certify a juvenile for federal jurisdiction, those limitations do not afford the courts the power to review the exercise of that discretion. See id. at 1380-81. Analogizing the certification decision to other non-reviewable determinations made by law enforcement officials, the court held that the § 5032 certification is unreviewable. See id. at 1381.
Other circuits have reached a similar conclusion. The Eleventh Circuit, in United States v. C.G., 736 F.2d 1474 (11th Cir.1984), adopted the reasoning of Vancier and held that a court could not...
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