U.S. v. Doe, 96-10117

• Decision Date: 12 August 1996
• Docket Number: No. 96-10117,96-10117
• Citation: 94 F.3d 532
• Parties: 96 Cal. Daily Op. Serv. 6120 UNITED STATES of America, Plaintiff-Appellant, v. John DOE, a Juvenile, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 532

94 F.3d 532

96 Cal. Daily Op. Serv. 6120

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

No. 96-10117.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 11, 1996.

Decided Aug. 12, 1996.

Thomas L. LeClaire, Assistant United States Attorney, Phoenix, Arizona, for plaintiff-appellant.

Dana Carpenter, Carpenter & Hamilton, Phoenix, Arizona, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. No. CR-96-00020-SMM.

Before: REINHARDT and HALL, Circuit Judges, and MERHIGE, Senior District Judge. ^*

MERHIGE, Senior District Judge:

The government appeals from an order entered in the United States District Court for the District of Arizona denying its motion, pursuant to the Federal Juvenile Delinquency Act ("FJDA"), 18 U.S.C. § 5032, to transfer defendant, a seventeen-year-old juvenile male, for adult criminal prosecution. We AFFIRM.

I.

On January 7, 1996, defendant was arrested and arraigned before a United States Magistrate Judge. He was charged in an amended juvenile information with first-degree murder, felony murder, second-degree murder, theft of tribal property, burglary and conspiracy to commit burglary. On January 10, 1996, the magistrate judge ordered defendant detained, and the government moved, pursuant to 18 U.S.C. § 5032, to transfer the defendant for adult prosecution. On January 19, 1996, defendant filed a motion to continue, which was granted. On February 15, 1996, the district court conducted a day-long hearing on the motion to transfer.

The record reflects that in the early morning of January 6, 1996, Hoskie Gene ("Gene"), a Navajo Police Officer, had been dispatched to investigate a break-in at a store near Shonto, Arizona, within the Navajo Indian Reservation. When last contacted, Gene was preparing to stop two suspects, defendant and Vincent Cling. ¹ The suspects were approximately a half-mile from the store. Gene stopped the two suspects, made initial inquiries, and then accused them of having attempted to break into the store. When Gene tried to handcuff defendant, defendant resisted and Cling attacked Gene. Cling threw Gene to the ground, at which point defendant and Cling began choking him. Once Gene was unconscious, Cling knocked out the squad car's revolving lights, while defendant began striking Gene in the head with a flashlight. Defendant came over to the car and told Cling that the officer was dead. Defendant and Cling then fled in Gene's patrol car, and wrecked the car approximately two miles from where they left Gene's body. Both were arrested later that same day.

Dr. Bruce Kushner, a psychologist who interviewed and performed tests on defendant, testified at the transfer hearing. Dr. Kushner stated that testing indicated defendant is an "immature 17-year-old," who is "neurotic," but not "psychotic." Furthermore, defendant is

very upset about what he sees as his failure to the family. He blames himself for the--his parents' divorce because of the death of his brother, for which he feels responsible, and in my opinion, has never recovered. And then that's a--I think a seminal event in the boy's life.

Dr. Kushner testified that defendant has suffered from depression for a number of years, and that this depression stems from the accidental shooting of his brother. ² He further explained that defendant has

some pessimism with regard to his ability to change. That is, he's not sure that he can change. He worries about whether he can. That's consistent with the fact that he is--has had relatively little success in his life, and--and he's not--he's concerned about where he fits in.

Finally, Dr. Kushner testified that four years of treatment would reduce the chances of recidivism substantially and give defendant a reasonable prospect of rehabilitation.

On February 28, 1996, the district court entered a Memorandum of Decision and Order denying the government's motion to transfer defendant to adult status. On March 13, 1996, the government filed a notice of interlocutory appeal. Defendant filed a notice of impending speedy trial violation on March 25, 1996, and a motion to dismiss the appeal on April 4, 1996.

II.

In United States v. Gerald N., 900 F.2d 189, 190 (9th Cir.1990) (per curiam), ³ we held that orders transferring juveniles for adult prosecution are immediately appealable under the collateral order exception described in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In the instant appeal, we must consider whether orders denying transfer of juveniles for adult prosecution are also immediately appealable under the collateral order exception.

To qualify as an appealable collateral order, an order must: (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794, 799, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978)) (footnote omitted); Gerald N., 900 F.2d at 190. We find that all three requirements are met in this case.

There is no doubt that the first two requirements of the Coopers & Lybrand test are satisfied. The district court's order denying the government's motion conclusively determines the disputed question, that is, whether the defendant will be tried as an adult, and this issue is completely separate from the merits of defendant's guilt or innocence. As for the third requirement, we find that if the government were not allowed to appeal the district court's order at this time, and were forced to wait until the conclusion of the juvenile adjudication to do so, the government's right to try defendant as an adult would be forever barred by the Double Jeopardy Clause. ⁴ Therefore, the district court's order denying transfer involves "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). Accordingly, we have appellate jurisdiction under the collateral order doctrine to review the order denying transfer.

III.

Defendant argues that the government's appeal of the district court's order violates his speedy trial rights. 18 U.S.C. § 5036 provides that a juvenile under detention must be brought to trial "within thirty days from the date upon which such detention was begun" unless the "additional delay was caused by the juvenile and his counsel, or consented to by the juvenile and his counsel, or would be in the interest of justice in the particular case." Defendant was arrested and arraigned on January 7, 1996, and ordered detained on January 10, 1996. On January 19, 1996, defendant moved for a continuance. The time attributable to his motion does not count towards the thirty-day limit, because it was "caused by the juvenile or his counsel." Accordingly, only the time from January 7 to January 19, twelve days, counts toward the thirty-day time period. Defendant, however, contends that the time following the government's appeal should count towards the thirty-day limit. We disagree.

On March 13, 1996, the government appealed the denial of the motion to transfer. Because the delay was not caused or consented to by defendant or his counsel, it is excludable from the thirty-day period only if it satisfies the "interests of justice" exception. Defendant argues that since district court calendar congestion is not considered in evaluating the interest of justice exception, neither should appellate court congestion. Defendant, however, fails to recognize the double jeopardy implications of denying an interlocutory appeal by the government. Furthermore, any delay in this case was caused by the government's valid attempt to ensure that the district court did not abuse its discretion in refusing to transfer the defendant. The government has proceeded expeditiously in filing the instant appeal. Therefore, we find that the filing of an appeal in this case was done in the interest of justice, and the time period following the appeal is excludable from the thirty-day period. Accordingly, defendant's speedy trial rights have not been violated.

IV.

The purpose of the FJDA is to "remove juveniles from the ordinary criminal process in order to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation." United States v. Brian N., 900 F.2d 218, 220 (10th Cir.1990) (citations omitted). This purpose must be balanced, however, against the need to protect the public from "violent and dangerous individuals and provid[e] sanctions for anti-social acts. And that balance must be struck by the district court in the context of a transfer hearing." United States v. Alexander, 695 F.2d 398, 401 (9th Cir.1982) (citation omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2458, 77 L.Ed.2d 1337 (1983).

The decision to transfer a juvenile to adult status is within the sound discretion of the district court, and will not be disturbed except upon our finding an abuse of discretion. Id.; Gerald N., 900 F.2d at 191. The district court abuses its discretion "when it fails to make the required ... findings or where the findings it does make are clearly erroneous." United States v. Nelson, 68 F.3d 583, 588 (2nd Cir.1995).

In determining whether transfer would be in the "interests of justice," 18 U.S.C. § 5032, the district court is constrained to consider and make findings in the record as to each of the following six factors: (1) the juvenile's age and social background; (2) the nature of the alleged offense; (3) the prior record of the offender; (4) the juvenile's intellectual development and psychological maturity; (5) the...