Sealed Case (Juvenile Transfer), In re, 89-3126

• Decision Date: 09 January 1990
• Docket Number: No. 89-3126,89-3126
• Citation: 282 U.S.App.D.C. 156,893 F.2d 363
• Parties: In re SEALED CASE (JUVENILE TRANSFER).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 363

893 F.2d 363

282 U.S.App.D.C. 156

In re SEALED CASE (JUVENILE TRANSFER).

No. 89-3126.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 8, 1989.

Decided Jan. 9, 1990.

Appeal from the United States District Court for the District of Columbia (Criminal No. 89-0310M-01).

Elizabeth G. Taylor (appointed by this Court), with whom James W. Klein was on the brief for appellant.

Linda L. Mullen, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before WALD, Chief Judge, and EDWARDS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

H.S., Jr., a juvenile, was charged with three counts of distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). In order to criminally prosecute him, the government successfully moved to transfer H.S., Jr. from juvenile to adult court, pursuant to Sec. 5032 of the Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. Secs. 5031 et seq. ("the Act"). This is an appeal from the transfer decision of the district judge.

As a general matter, a juvenile charged under the Act may be transferred from juvenile to adult court for criminal prosecution in only two instances: in one, not relevant here, criminal prosecution is mandatory where a juvenile, 16 years or older, is charged with certain narcotics offenses or violent offenses and has previously been found guilty of such an offense; in the other, which is relevant here, criminal prosecution is allowed where a juvenile, 15 years or older, is charged with a "crime of violence" or certain narcotics offenses including violations of 21 U.S.C. Sec. 841(a)(1), and the district court finds after a hearing, on evidence pertaining to specific categories set out in 18 U.S.C. Sec. 5032, that criminal prosecution would be in "the interest of justice." One of those categories is "the nature of the alleged offense."

In evaluating the nature of H.S., Jr.'s alleged offense, the judge considered evidence of crimes proffered by the government other than the Sec. 841 violations with which it had charged him. Because Congress did not intend "the nature of the alleged offense" to encompass allegations of crimes other than the one charged, we reverse the district judge's transfer decision and remand for a new hearing consistent with this opinion.

I. BACKGROUND

As a seventeen year old, H.S., Jr. is a juvenile within the meaning of Sec. 5031 of The government moved to transfer H.S., Jr. to adult status so that it could prosecute him criminally rather than proceed against him in juvenile court. Consequently, the district court held a transfer hearing as required by "the interest of justice" transfer provision of Sec. 5032 of the Act. ²

                the Act. 1   The government has charged him by Information with three counts of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1).  The alleged acts took place in 1987 and 1988, H.S., Jr.'s 15th and 16th years
                

Through this provision, Congress has directed courts to determine a juvenile's rehabilitative potential by making findings regarding the following factors: (1) the juvenile's age and social background; (2) the nature of the alleged offense; (3) the extent and nature of the juvenile's prior delinquency record; (4) the juvenile's present intellectual development and psychological maturity; (5) the nature of past treatment efforts and the juvenile's response to such efforts; and (6) the availability of programs designed to treat the juvenile's behavioral problems. After weighing the evidence relevant to these categories, the court either determines that the juvenile is likely to respond to rehabilitative efforts and thus denies transfer or it determines that transfer for criminal prosecution is in "the interest of justice."

At the transfer hearing, the government offered into evidence an Affidavit in Support of Arrest Warrants which characterized H.S., Jr. as a major player in a large drug conspiracy and detailed his participation in the conspiracy. ³ The government had originally charged H.S., Jr. with conspiracy to possess and to distribute cocaine in addition to the distribution charges. However, after the district judge advised the government that conspiracy is not a transferable offense under 18 U.S.C. Sec. 5032, the government amended the Information, dropping the conspiracy charge.

Nonetheless, in the portion of the judge's opinion in which he evaluated "the nature of the alleged offense," the judge placed heavy reliance on the information contained in the Affidavit regarding the dropped conspiracy charge:

Although the charges in the Information are confined to three discrete acts of distribution of cocaine, the nature of these acts cannot be evaluated in a vacuum. According to the Affidavit in support of the warrant for H.S., Jr.'s arrest, these acts of distribution were part of a sophisticated drug conspiracy, in which H.S., Jr. is alleged to have played a significant role. In addition to these three discrete acts of distribution, the Affidavit alleges that H.S., Jr. collected the money street sellers received from cocaine sales, carried substantial quantities of cocaine to street sellers for distribution, and helped Rayful Edmond, III, the conspiracy's alleged ringleader, sell fairly substantial amounts of cocaine for significant sums of money. In addition, the Affidavit alleges that H.S., Jr. acted as an "enforcer" in the Edmond operation; he is alleged to have carried a weapon to protect Edmond's street sellers from rival drug distributors who "ventured onto [Edmond's] turf."

Opinion at 9-10 (citing Affidavit in Support of Arrest Warrants at para. 5).

II. ANALYSIS

H.S., Jr. argues that it was improper for the judge to consider the information contained in the Affidavit pertaining to the drug conspiracy because that information

                goes well beyond what Sec. 5032 of the Act permits;  namely a description of "the nature of the alleged offense" for which transfer is petitioned, which in this instance is three counts of distribution of cocaine. 4   While the government contends otherwise, it first argues that we do not have jurisdiction to hear this matter on interlocutory appeal
                

A. Jurisdiction

We disagree with the government's contention that we lack jurisdiction to review appellant's claim under 28 U.S.C. Sec. 1291, which provides for interlocutory appeals of certain "final decisions" of district courts.

In Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), the Supreme Court summarized the threefold test established originally in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), for determining whether a collateral order constitutes a "final decision" within the meaning of 28 U.S.C. Sec. 1291. The Court explained that to qualify as a collateral order, reviewable before proceedings in the trial court have terminated,

[t]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from final judgment.

(Emphasis added.)

Both the Eleventh and Eighth Circuits have held, in cases precisely on point, that interlocutory appeals from transfer decisions made pursuant to the Act satisfy the Coopers test. In United States v. C.G., 736 F.2d 1474, 1476 (11th Cir.1984), for example, Judge Kravitch quickly, and in our view correctly, disposed of the first two elements of the Coopers test, explaining that, "the matter appealed from--i.e., whether appellant is to be tried as an adult in federal court--has been finally determined by the district court [element 1] and neither affects nor is affected by the merits [element 2]." 736 F.2d at 1476 (emphasis added). ⁵ Judge Kravitch went into greater detail, however, regarding the third element, offering powerful reasons as to why an appeal from a transfer decision satisfies that part of the Coopers test too. She explained that the

question is not whether a given order is appealable after trial, but whether it is effectively reviewable. As one court put it, "[t]he third requirement of the collateral order doctrine is that the rights asserted would be lost, probably irreparably, if review were delayed until the conclusion of the proceedings in the district court." With the prosecution of a juvenile as an adult, several of the benefits and safeguards afforded by statute--e.g., sealing of records and limitation of inquiries into records, protection from fingerprinting and photographing, and withholding of name and picture from news media, see 18 U.S.C. Sec. 5038--will be irretrievably lost unless the juvenile is permitted to appeal the district court's order before conviction. ⁶

C.G., 736 F.2d at 1476-77 (emphasis in original, citations omitted). See also, United States v. A.W.J., 804 F.2d 492 (8th Cir.1986) (same fact pattern and reasoning); United States v. Doe, 871 F.2d 1248 (5th Cir.1989) (court heard appeal directly from The government does not attempt to distinguish C.G. and A.W.J. Rather it contends they were wrongly decided and are inconsistent with the Supreme Court's interpretation of the collateral order exception as applied in criminal cases. In support of its argument, the government relies heavily on Midland Asphalt Corp. v. United States, --- U.S. ----, 109 S.Ct. 1494, 1499, 103 L.Ed.2d 879 (1989). There, the Court took great pains to explain the "crucial distinction" between an explicit statutory or constitutional guarantee of the right not to be tried at all, i.e., cases involving the Double Jeopardy and Speech or Debate clauses of the Constitution, and a right which can be sufficiently vindicated by acquittal at trial or on reversal of a final judgment, such as the right to an untainted grand jury indictment. ⁷ The...