Cox v. United States

• Citation: 473 F.2d 334
• Decision Date: 29 January 1973
• Docket Number: No. 71-1384.,71-1384.
• Parties: Earl French COX, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

473 F.2d 334 (1973)

Earl French COX, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 71-1384.

United States Court of Appeals, Fourth Circuit.

Argued December 7, 1972.

Decided January 29, 1973.

Joseph Forer, Washington, D. C., court-appointed counsel, for appellant.

Thomas P. McNamara, U. S. Atty. (Warren H. Coolidge, U. S. Atty., F. Stuart Clarke, Asst. U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BOREMAN and BRYAN, Senior Circuit Judges, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting en banc.

HAYNSWORTH, Chief Judge:

A majority of a divided panel of this Court concluded:

(1) That the juvenile defendant was entitled to a limited hearing before the Attorney General could direct that he be proceeded against as an adult, and

(2) That, having been tried as an adult, a sentence under the Federal Youth Corrections Act was mandatory, unless the trial court found that the youthful offender "will not derive benefit from treatment" under that Act.

A petition for rehearing en banc was granted and, after an en banc rehearing, a majority of the Court is in agreement with the dissenting member of the panel on the first point and with the majority of the panel on the second.

The opinions of Judge Winter for the majority and Senior Judge Bryan in dissent are appended, and the reader is referred to them for a more detailed statement of the facts and exposition of the legal issues.

I

Cox, who was then seventeen years old, with four companions, each of whom had passed his eighteenth birthday, robbed a bank in North Carolina. The United States Attorney wrote to the Attorney General, requesting permission to try Cox as an adult offender rather than as a juvenile. He reported that there were other pending charges against Cox in the Metropolitan Washington, D. C., area, including a charge of armed robbery, a charge of housebreaking and a charge of attempted larceny of an automobile. He reported information that Cox was the leader of the band and that it was he who supplied the automobile used in going to the bank and fleeing from it.

In due course, the Attorney General authorized and directed the United States Attorney to proceed against Cox as an adult, stating, however, that the United States Attorney might wish to suggest to the Court a sentence under the Youth Corrections Act.

In the federal system there are no separate juvenile courts. The district courts have jurisdiction to try juveniles, youths who have not yet attained their eighteenth birthdays. Under 18 U.S.C. A. § 5032, a juvenile charged with a federal offense not punishable by death or life imprisonment shall be prosecuted as a juvenile delinquent, if he consents to that procedure and unless the Attorney General has expressly directed that he be prosecuted as an adult. We do not have the problem of judicial waiver of the primary jurisdiction of a juvenile court to the jurisdiction of a general trial court. What is involved is a decision by the Attorney General to charge a juvenile with juvenile delinquency based upon his alleged violation of the law and to proceed against him as a juvenile, or to charge him as an adult with the substantive transgression of the law. As Judge Bryan points out, this is a prosecutorial decision beyond the reach of the due process rights of counsel and a hearing.

When the question is one of waiver of jurisdiction of a juvenile court and it is to be decided by a judge of the juvenile court, it is clear that the juvenile is entitled to a hearing on the question of waiver and the assistance of counsel in that hearing.¹

This is entirely consistent with our tradition that the decisions of judges in judicial proceedings affecting substantial rights of persons charged with criminal violations shall be reached only after an opportunity is afforded for a full and fair hearing with the benefit of counsel.

We have no such tradition with respect to prosecutorial decisions to seek an indictment, or not to seek one, to make or not to make a charge, or to charge a greater offense or a lesser one. Such decisions have a substantial impact on the outcome of subsequent proceedings. Indeed, they may foreclose such proceedings, but they are left for determination by the prosecutor without a hearing and without extension of any of the other due process protections to the person whose exposure and degree of exposure to prosecution the prosecutor determines. The decision to charge Cox with bank robbery rather than with juvenile delinquency is just such a prosecutorial decision.

It is true, of course, that, from the defendant's viewpoint, the effect and consequences of the prosecutorial decision are the same as the effect and consequences of a judicial decision to waive juvenile court jurisdiction in a judicial system which provides such courts.

To Cox, the consequences of a decision to prosecute him for bank robbery rather than for juvenile delinquency are the same, whether, within the remaining framework of the federal statutes, the decision is made by the Attorney General as a prosecutorial function or by a judge as a judicial function. Effects and consequences, however, are not the sole measure of the reach of the Bill of Rights. Judicial proceedings must be clothed in the raiment of due process, while the processes of prosecutorial decision-making wear very different garb. It is one thing to hold, as we have, that when a state makes waiver of a juvenile court's jurisdiction a judicial function, the judge must cast about the defendant all of the trappings of due process, but it does not necessarily follow that a state or the United States may not constitutionally treat the basic question as a prosecutorial function, making a highly placed, supervisory prosecutor responsible for deciding whether to proceed against a juvenile as an adult. If it does, as the United States has, the character of the proceeding, rather than its consequences to the accused, are largely determinative of his rights.

Many of the protections of the Bill of Rights extend far beyond the courtroom, of course, but the guaranty of a hearing found in the due process clause of the Fifth Amendment has traditionally been limited to judicial and quasi-judicial proceedings. It has never been held applicable to the processes of prosecutorial decision-making.² The only proper question here, therefore, is whether the general statutory scheme is constitutional, whether Congress reasonably might vest in the Attorney General, rather than in a judge in a judicial proceeding, the responsibility of deciding whether or not to prosecute a juvenile as an adult. That question is appropriately answered affirmatively.

The reasonableness of the allocation of this function to the Attorney General is reinforced by the provisions of the Youth Corrections Act.³ That Act provides special treatment and rehabilitative measures for youths sentenced under it, and the youth may earn early conditional and unconditional release. Significantly, under § 5021, unconditional release from confinement, parole or probation before expiration of the maximum term operates automatically to vacate the conviction and clear the youth's criminal record. In substantial measure, therefore, the judge, after conviction, when he has the benefit of information disclosed in the trial and in presentence reports, may extend to the youth an opportunity to gain many of the advantages he would have derived from initial treatment as a juvenile delinquent. To that extent, a decision of the Attorney General to proceed against a youth as an adult is not final, for special treatment as a youthful offender who may earn a clearance of his criminal record remains an available and preferred sentencing alternative. This was explicitly in the mind of the Attorney General in this case, for, in directing that Cox be proceeded against as an adult, he suggested a sentence under the Youth Corrections Act.

II

In this Court, for the first time, the defendant contends that the Attorney General's decision to direct adult proceedings against Cox is reviewable under the Administrative Procedure Act.⁴ The claim of abuse of discretion rests primarily upon the Attorney General's reference in his decision to an assumption of unfairness to the co-defendants, each of whom had passed his eighteenth birthday, if they were proceeded against as adults while Cox was treated as a juvenile delinquent.

Aside from the fact that these questions were not raised in the District Court, we need not consider the question of reviewability of the Attorney General's exercise of the discretion the statute vests in him. Unfairness to co-defendants may have been an irrelevant consideration, but the fact that Cox was close to eighteen, the nature of the crime and the presence of other serious charges against him foreclose any judicial finding of abuse of discretion. There was no inappropriateness in the Attorney General's conclusion that Cox should be proceeded against as an adult, leaving for later determination by the sentencing judge the extent to which he should exercise the broad powers given him by the Youth Corrections Act to treat Cox as a youthful offender.

III

A majority of the en banc court agrees with the panel majority that the Youth Corrections Act provides a preferred sentencing alternative which must be used in sentencing a youthful offender unless, in the language of § 5010(d), "the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c) * * *."

Ordinarily, in the absence of an explicit finding to that effect, we would treat it as implicit in the imposition of some other sentence conditionally authorized by § 5010(d). Here, however, in the postconviction proceeding, the District Judge said explicitly he had made no such finding and, referring to the legislative history, thought none was required. In his view the Youth Corrections A...