U.S. v. Doe

• Decision Date: 23 February 1995
• Docket Number: D,No. 342,342
• Citation: 49 F.3d 859
• Parties: UNITED STATES of America, Appellee, v. John DOE, Defendant-Appellant. ocket 92-1438.
• Court: U.S. Court of Appeals — Second Circuit

Page 859

49 F.3d 859

UNITED STATES of America, Appellee, v. John DOE, Defendant-Appellant.

No. 342, Docket 92-1438.

United States Court of Appeals Second Circuit.

Argued Nov. 8, 1994.

Decided Feb. 23, 1995.

Patricia A. Pileggi, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., E.D.N.Y., Peter A. Norling, Asst. U.S. Atty., on the brief), for appellee.

Larry J. Silverman, New York City (Howard Clyman, on the brief), for defendant-appellant.

Before: FEINBERG, KEARSE, and CARDAMONE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant John Doe, 17 years old at the time of his arraignment on the present charges, appeals from an order of the United States District Court for the Eastern District

of New York, Carol Bagley Amon, Judge, granting the government's motion under the Juvenile Delinquency Act, 18 U.S.C. Secs. 5031-5042 (1988) ("JDA" or the "Act"), to proceed against him as an adult. The Act governs federal prosecutions of "juveniles," defined, insofar as is pertinent here, as persons who have not yet attained the age of 18 years, see id. Sec. 5031. With certain exceptions that are not applicable here, the Act provides that a person who is alleged to have committed, while a juvenile, an act that would have been a crime if committed by an adult is not to be proceeded against in federal court unless, upon the requisite certification of the Attorney General of the United States, the district court finds that prosecution in federal court would be in the interest of justice. See id. Secs. 5031, 5032. If the juvenile is to be proceeded against in federal court, the Act gives him special rights with regard to, inter alia, pretrial detention, see id. Sec. 5035 (prohibiting, e.g., confinement in contact with adult offenders); a speedy trial, see id. Sec. 5036 (generally requiring trial within 30 days after initial detention); and the sealing of court records, see id. Sec. 5038. On appeal, Doe contends principally that the district court erred (1) in ruling that the government had established that permitting it to proceed against him as an adult would be in the interest of justice, and (2) in failing to dismiss the proceedings against him for violation of his speedy trial rights under the Act. Finding no error in the decision of the district court, we affirm.

I. BACKGROUND

The present proceedings began in September 1991 with an indictment handed down in the Eastern District of New York charging Doe and 10 codefendants with a host of crimes involving robbery and extortion, in violation of, inter alia, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1962(c) and (d) (1988), and the Hobbs Act, 18 U.S.C. Sec. 1951 (1988), in connection with their participation in the activities of a street gang known as Born To Kill ("BTK"). The gang was alleged to have engaged in numerous acts of robbery, extortion, and murder in New York and other places. Doe was alleged to have participated in the BTK conspiracy in general, in BTK's November 1990 robbery of a jewelry store in Doraville, Georgia, and in BTK's extortion of services from an electronics firm in Manhattan during the first six months of 1991.

When the indictment was filed, Doe was in custody in Utica, New York, pending trial on other armed robbery charges. He was arraigned on the present charges in the Eastern District on October 18, 1991.

A. The Early Proceedings

On the day of his arraignment, Doe was interviewed by a pretrial services officer and by Daniel Kumor, an agent of the Bureau of Alcohol, Tobacco and Firearms ("BATF"). Doe gave the pretrial services officer a name that was eventually discovered to be false. He gave February 12, 1974, as his date of birth, which would have made his then-current age 17. However, Doe also said he had left Vietnam in 1983, and he told Kumor that he was 12 or 13 when he left Vietnam. These two statements indicated that Doe was 20 or 21 in October 1991 and was past his 18th birthday in November 1990, the time of the earliest of the offenses charged here.

Doe asked the pretrial services officer to contact his attorney in the pending Utica case. When contacted, that attorney stated that February 12, 1974, was the date of birth on a xerox of an alien registration card that Doe had given him. The pretrial interview report stated that law enforcement agents believed Doe was born in 1970, not 1974. A government informant who had known Doe for 2 1/2 years told agents he believed Doe was 20 or 21 years old. Further, upon two prior arrests in New York City, one in 1990 and the other in early 1991, Doe had stated his date of birth as, respectively, April 12, 1972, and February 12, 1970, either of which would have made him older than 18 at the time of the alleged offenses.

At his October 18, 1991 arraignment, Doe was represented by Larry J. Silverman, Esq., appointed that day. Trial of the case was scheduled for January 6, 1992. Silverman consented to the entry of an order of excludable delay pursuant to the Speedy Trial Following the arraignment, the government sent Silverman a discovery letter dated October 18, 1991, which noted, inter alia, that just prior to his arraignment on the present charges, Doe had said that he was born on February 12, 1974. On October 28, 1991, the court held a hearing on the government's motion for Doe's pretrial detention. Doe raised no question as to his juvenile status.

Act, 18 U.S.C. Sec. 3161 et seq. (1988), for the period between October 18 and January 6 on the ground that the case was complex. Silverman did not raise any question as to whether Doe was a juvenile and thus entitled to special treatment under the JDA.

On October 31, Silverman moved for an extension of the court's November 4, 1991 deadline for filing motions, in order to allow him to file a "fully documented" motion to sever Doe's trial from that of his codefendants. At the time of the motion for an extension, Silverman did not raise the question of whether Doe was a juvenile.

B. The Motion To Dismiss on the Ground of Juvenile Status

On December 10, 1991, Silverman moved to dismiss the indictment on the ground that Doe was a juvenile at the time of the alleged offenses. After the government received additional information in the form of, inter alia, Doe's Social Security Card, his alien registration card, and New York City public school records, all in Doe's real name, it conceded that Doe was a juvenile within the meaning of the Act. Accordingly, on December 24, 1991, the government filed a juvenile information, with charges essentially mirroring the charges against Doe in the original indictment, and moved to transfer Doe to adult status. The transfer motion was supported by, inter alia, a certification by the United States Attorney for the Eastern District of New York that the offenses charged were crimes of violence and that there was a substantial federal interest in the case, warranting the exercise of federal jurisdiction.

At a January 2, 1992 hearing, the court dismissed the indictment in light of the government's concession as to Doe's age and its filing of the juvenile information. Doe argued that the information too should be dismissed on the ground that the government's transfer motion was not supported as required by the Act, contending, inter alia, that the United States Attorney for the Eastern District lacked the authority to make the supporting certification because Doe was not alleged to have committed any crime of violence in the Eastern District. In colloquy with counsel, the court sought to resolve the transfer and dismissal motions expeditiously in an attempt to begin the trial of all of the defendants, including Doe, on or shortly after the scheduled January 6 trial date. Silverman advised the court, however, that he was prepared to "take advantage of every procedural opportunity not to have [Doe] tried with the other defendants" (Hearing Transcript, January 2, 1992, at 15). He stated that he would appeal any decision by the district court to transfer Doe to adult status; he stated that if the government were to succeed on its motion to transfer Doe, he would also insist on having 30 days in which to prepare for trial, see 18 U.S.C. Sec. 3161(c)(2). In connection with the government's transfer motion, Silverman asked for an adjournment to give him time to prepare, and he stated that Doe waived his right to be tried within 30 days of the filing of the juvenile information. On January 3, Doe moved to dismiss the information on the additional ground that, because the delay between his October 18 arraignment and the December 24 filing of the juvenile information exceeded 30 days, his right to a speedy trial under 18 U.S.C. Sec. 5036 had been violated.

A hearing on the government's transfer motion and Doe's motion to dismiss was commenced on January 9, 1992 ("JDA hearing"), but, because of numerous adjournments in light of, inter alia, negotiations toward a plea agreement, the hearing was not concluded before June 1992. Trial of eight of Doe's codefendants proceeded without Doe. Those codefendants were convicted on virtually all of the counts against them, and, with one exception, their convictions were affirmed on appeal. See United States v. Thai, 29 F.3d 785 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 456, 130 L.Ed.2d 364 (1994).

At the JDA hearing, New York City Police Detective William Oldham testified with respect to, inter alia, the authorities' efforts to determine Doe's real date of birth. Oldham stated that he had placed little credence in the xerox copy of Doe's alien registration card possessed by Doe's Utica attorney because copies of such documents can easily be altered and because, in his experience, defendants often give false dates of birth in order to try to gain the benefits of juvenile status. Oldham pointed out the information the authorities had received from an informant that Doe was 20 or 21 (which matched the information Doe had given...