In re A.M.

• Decision Date: 16 August 1994
• Docket Number: No. 92-7575,92-7575
• Citation: 30 V.I. 442
• Parties: GOVERNMENT OF THE VIRGIN ISLANDS IN THE INTEREST OF: A.M., A Minor
• Court: U.S. Court of Appeals — Third Circuit

30 V.I. 442

GOVERNMENT OF THE VIRGIN ISLANDS IN THE INTEREST OF: A.M., A Minor

No. 92-7575

United States Court of Appeals for the Third Circuit

August 16, 1994

Juvenile's appeal from the Appellate Division of the District Court's order affirming the Family Division of the Territorial Court's order granting motion by the Government of the Virgin Islands that the juvenile be transferred for prosecution as an adult. The U.S. Circuit Court of Appeals, Alito, J., held that the transfer order is subject to pretrial appeal under the collateral order doctrine, and that the Family Division Judge properly considered the likelihood of rehabilitation, properly denied a request to strike the entire transfer summary submitted by the Department of Human Services, and properly admitted hearsay to establish probable cause in juvenile transfer hearings.

[Headnotes Classified to Virgin Islands Digest]

[COPYRIGHT MATERIAL OMITTED]

BRENDA SCALES (Argued), Territorial Public Defender, Charlotte Ainalie St. Thomas, V.I., for the appellant

ROSALIE SIMMONDS BALLENTINE, Attorney General; PAUL L. GIM-ENEZ, Solicitor General; ROBERT BORNHOLT (Argued), DEANA M. BOLLING, Assistant Attorneys General, Department of Justice, Charlotte Amalie St. Thomas, V.I., for Government of the Virgin Islands

BEFORE: STAPLETON, ALITO, and WEIS Circuit Judges

OPINION OF THE COURT

ALITO, Circuit Judge

This appeal concerns an order transferring a juvenile for prosecution as an adult. We hold that such a transfer order is subject to pretrial appeal under the collateral order doctrine, and we reject the juvenile's argument that the transferring court committed various procedural errors, including the admission of hearsay in violation of due process and Virgin Islands law. We therefore affirm the decision of the Appellate Division of the District Court, which sustained the transfer.

I

In November 1991, a juvenile delinquency complaint was filed against A.M., who was then 16 years old. The complaint allegedthat, on the previous day, A.M. had engaged in conduct that, if committed by an adult, would have constituted the felonies of first-degree rape, first-degree unlawful sexual contact, first-degree assault, conspiracy, and kidnapping for rape. In early December 1991, the Government of the Virgin Islands filed a motion requesting that A.M. be transferred for prosecution as an adult. After a hearing in May 1992, the Family Division of the Territorial Court issued an order granting that motion. In October 1992, the Appellate Division of the District Court affirmed that order, and A.M. then took this appeal to our court.

II.

[1, 2] Before addressing A.M.'s arguments, we will first explain why we have jurisdiction to entertain his appeal. Under 28 U.S.C. § 1291¹ and 48 U.S.C. § 1613a(c),² we have jurisdiction over all "final decisions" of the District Court of the Virgin Islands, including "all final decisions of the district court on appeal from the courts established by local law," 48 U.S.C. § 1613a(c). Although the Appellate Division order from which this appeal was taken is not a "final order" in the ordinary sense, four other courts of appeals have held that district court orders transferring juveniles for prosecution as adults under the federal transfer statute, 18 U.S.C. § 5023, fall within the collateral order doctrine and are therefore appealable before trial. In re Sealed Case, 893 F.2d 363 (D.C. Cir. 1990); United States v. Smith, 851 F.2d 706 (4th Cir. 1988), cert. denied, 112 S. Ct. 414 (1991); United States v. A.W.J., 804 F.2d 492 (8th Cir. 1986); United States v. C.G., 736 F.2d 1474 (11th Cir. 1984). Cf. Guam v. Kingsbury, 649 F.2d 740 (9th Cir. 1981), cert. denied, 454 U.S. 895 (1981) (holding, based on different reasoning, that transfer order under Guam statute is subject to pretrial appeal). These four courts of appeals have reasoned that such orders represent the districtcourt's final decision on the transfer question, that this question is separate from the merits of the prosecution, and that the denial of appellate review until after the juvenile has been tried as an adult would cause the irreparable loss of some of the statutory protections offered to juvenile offenders, such as protection from disclosure of court records. For essentially the reasons explained in these decisions, we are persuaded that the Appellate Division's order in this case falls within the collateral order doctrine and is thus appealable.

[3, 4] We likewise hold that the Appellate Division of the District Court had jurisdiction to hear A.M.'s appeal from the decision of the Family Division of the Territorial Court. Under 48 U.S.C. § 1613a(a), the District Court currently has "such appellate jurisdiction over the courts of the Virgin Islands established by local law," and V.I. Code Ann. Tit. 5, § 2508(d) specifically provides that a juvenile transfer order of the Family Division is a "final appealable order." Moreover, the general appellate jurisdiction of the District Court extends at least to review of "final" decisions of the Territorial Court,³ and the Territorial Court's transfer order in this case was, as previously discussed, "final" within the meaning of the collateral order doctrine.

While we thus hold that transfer orders such as the one at issue in this case are subject to two levels of appellate review, we must express our concern about the potential for delay that such appeals may produce. In the future, we believe that appeals of transfer orders should be treated much like appeals of detention orders. See 18 U.S.C. § 3145(c). The parties should alert the Appellate Division and our court to the nature of the appeal and request expediteddisposition. The parties should then be required to comply with short briefing deadlines; extensions should be granted only in extreme situations; and such cases should be given priority on the docket.

III.

Turning to the merits of this appeal, we first address A.M.'s argument that the Family Division judge did not properly consider the likelihood of his rehabilitation if he was found to have committed the alleged offenses. Under the transfer provision applicable here, V.I. Code Ann. tit. 5, § 2508(a), the Family Division "may" transfer a juvenile for adult prosecution if the juvenile was at least 16 years old at the time of the alleged offense, and the alleged offense would constitute a felony if committed by an adult. While this provision commits the transfer decision to the sound discretion of the Family Division,⁴ another provision, V.I. Code Ann. tit. 5, § 2509(d), provides that evidence of seven specified factors "shall be considered in determining transfer." These factors are:

(1) the seriousness of the alleged offense to the community and whether the protection of the community requires waiver;

(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

(3) whether the alleged offense was against property, greater weight being given to offenses against persons, especially if personal injury resulted;

(4) whether there is probable cause to believe that the offense charged has been committed and that the child has committed it;

(5) the sophistication and maturity of the child as determined by consideration of his home, emotional attitude and pattern of living;

(6) the record and previous history of the juvenile, including previous contacts with the Youth Services Administration, law enforcement agencies and courts, and prior periods of probation or prior commitments to residential institutions; (7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child, if found to have committed the alleged offenses charged.

Id. (emphasis added).

In deciding that A.M. should be transferred, the Family Division judge specifically discussed all of these factors, including the factor of rehabilitation. In her oral findings, she noted that the only witness who testified concerning rehabilitation was a social worker from the Virgin Islands Department of Human Services named Vaughn A. Walwyn and that Walwyn had testified without contradiction that there were no programs for juvenile sexual offenders in the Virgin Islands. App. 123. The judge thus concluded that there was "nothing available" or at least "nothing that [had] come to the Court's attention" that created a likelihood of reasonable rehabilitation" for A.M. if he was treated as a juvenile and was found to have committed the offenses charged. Id.

The Family Division judge again addressed the question of rehabilitation in her written transfer order. There, she made the following finding:

That the testimony elicited at the hearing disclosed that there is no program of rehabilitation in the Virgin Islands for minors who are found delinquent of the crime with which the minor is charged.

App. 20.

[5] In attacking the decision of the Family Division, A.M. suggests that the court erred because it did not consider whether he could be rehabilitated if sent to a juvenile facility outside the Virgin Islands. See Appellant's Br. at 13, 17-18. We disagree with this argument. The Virgin Islands transfer statute required the Family Division to consider evidence concerning "the likelihood of reasonable rehabilitation" of A.M. if he was found to have committed the alleged offense, V.I. Code Ann. tit. 5, § 2509(d)(7). This language does not expressly require that the court survey the availability of suitable rehabilitation facilities in other jurisdictions, and we see no reason to suppose that the Virgin Islands Legislature intended to impose any such inflexible requirement. If A.M.'s attorney was aware of specific, suitable facilities outside the Virgin Islands, she could have called them to the judge's attention. In thatevent, the Family Division judge could have considered whether sending A.M. to any of these facilities represented a "reasonable rehabilitation" plan under all of the circumstances, including the...