People of Territory of Guam v. Kingsbury, 79-1585

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation649 F.2d 740
Docket NumberNo. 79-1585,79-1585
PartiesPEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. William E. KINGSBURY, Defendant-Appellant.
Decision Date29 June 1981

Howard G. Trapp, Kenneth E. North, Crain, Moore & Layne, Agana, Guam, for defendant-appellant.

Richard B. Michelsen, Agana, Guam, argued for plaintiff-appellee; Kenneth E. North, Agana, Guam, on brief.

Appeal from the District Court of Guam.

Before TANG, SCHROEDER and POOLE, Circuit Judges.

SCHROEDER, Circuit Judge:

This is an appeal from a decision of the District Court of Guam, Appellate Division, affirming a Guam juvenile court decision certifying the appellant, William Kingsbury, to stand trial as an adult. Because Kingsbury was seventeen years old at the time of the alleged crime, he was originally brought before the juvenile court in Guam. Guam Code Civ.Proc. §§ 251, 252. The juvenile court, after a hearing on Kingsbury's amenability to treatment as a juvenile ruled, pursuant to Guam Code Civ. Proc. § 255, that the appellant should stand trial as an adult. Appellant challenges that determination on the ground that the juvenile court's failure to conduct a full investigation into his motive constituted a denial of due process.

The appellee asserts, first, that this Court lacks jurisdiction of the appeal because it is an interlocutory decision of the District Court of Guam, and, second, that the juvenile court was correct on the merits. We hold that we have jurisdiction on the appeal from the district court's decision, and we affirm its holding that the appellant should stand trial as an adult.

The threshold question is one of jurisdiction. While we conclude that some review by the district court at this stage was clearly authorized, the question of this Court's jurisdiction to review the district court under 28 U.S.C. § 1291 is more complex.

The matter was originally brought to the district court by the appellant on March 6, 1979, as an appeal from the certification order of the juvenile court. The jurisdictional basis for that appeal lies in Guam Code Civ.Proc. § 272 which provides that a party aggrieved by an order of the juvenile court may file a notice of appeal with the district court. 1

On March 15, 1979, appellant was indicted in the superior court of Guam. Appellant sought review of the denial of his motion to dismiss the indictment. He petitioned the district court for a writ of mandate under Guam Crim.Proc. Code § 65.17. 2 The district court reviewed the juvenile court proceedings and decided there had been no error.

Pursuant to 28 U.S.C. § 1291, this Court has jurisdiction over appeals from final orders of the District Court of Guam. In Corn v. Guam Coral Co., 318 F.2d 622 (9th Cir. 1963), we held that appellate jurisdiction extends to orders of the district court sitting in both its capacity as a federal court and in its capacity as an appellate court for the Guam territorial courts. Because our jurisdiction is limited to final orders we must consider whether the decision of the district court in this case is a final decision as to the propriety of the appellant's trial as an adult.

We view the finality standard to be applied as analogous to the standard applied by the United States Supreme Court to test the finality of state court judgments pursuant to 28 U.S.C. § 1257. Under the standards traditionally applied to section 1257, the fact that a decision is a final decision of the highest state court does not necessarily mean that the decision is final for section 1257 purposes. Thus, the Supreme Court has generally refused to review a state appellate decision where further state court proceedings are pending. See, e. g., California Nat'l. Bank v. Stateler, 171 U.S. 447, 449, 19 S.Ct. 6, 7, 43 L.Ed. 233 (1898).

The Supreme Court has also held, however, that such decisions are final for section 1257 purposes where the claim on appeal has been finally litigated in a state appellate court and may not be raised on appeal again after the end of subsequent state proceedings. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482, 95 S.Ct. 1029, 1039, 43 L.Ed.2d 328 (1975). Appealability here therefore turns on whether Guam law requires a juvenile to question the propriety of standing trial as an adult before the trial takes place and precludes him from raising the issue on post-conviction appeal. The relevant Guam statutes and precedent do not provide a clear answer to this question. Guidance can be found, however, by examining judicial interpretations of similar statutes in other jurisdictions.

There is no unanimity among state courts as to the propriety of pretrial review when a juvenile is ordered to be tried as an adult. The IJA-ABA Juvenile Justice Standards Project advocates pretrial review. See Institute of Judicial Administration and American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Transfer Between Courts § 2.4 (Tent. Draft 1977). Such review is permitted in at least fourteen jurisdictions. 3 When we examine the decisions in other jurisdictions, we find that those having broad statutory language similar to Guam Code Civ.Proc. § 272 have been interpreted as permitting a juvenile to appeal a certification order immediately after the order's entry. 4 Further, in the jurisdictions allowing pretrial review, the statutes, like that of Guam, require review, not of the adult court indictment but of the juvenile court certification order. 5 It is overwhelmingly held by courts addressing the question, that such review is the only, and hence the final review available. 6 We therefore hold that the district court properly had jurisdiction under section 272 to review the certification decision. 7 Under the standard suggested by Cox Broadcasting, we have jurisdiction over this appeal from the District Court of Guam. 8

On the merits, the appellant's principal claim is that the failure of the juvenile court to make an investigation into motive was a denial of due process. In the context of juvenile certification procedures, due process requires the rights to counsel, to adequate notice and to a statement of reasons at a hearing to determine whether a juvenile is to be tried as an adult. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Harris v. Procunier, 498 F.2d 576 (9th Cir.) (en banc), cert. denied, 419 U.S. 970, 95 S.Ct. 235, 42 L.Ed.2d 186 (1974). Those requirements were met in this case. A day-long hearing was held, attended by appellant, his mother and his counsel. A written decision was rendered and there is no claim of denial of access to records.

Appellant challenges only the failure to investigate into the reason behind the murder. The specific factors to be considered and the weight to be given to each, however, are discretionary. A list of factors is contained in a policy memorandum appended to Kent v. U. S., supra, 383 U.S. at 565, 86 S.Ct. at 1059, and quoted by the district court in this case. These factors include: the seriousness of the crime; whether it was violent or premeditated; whether the crime resulted in personal injury; the prosecutive merit of the complaint; the sophistication of the juvenile; prior record and contacts with the youth authority; and the prospects for rehabilitation. It is clear that the juvenile court took these considerations into account. While investigation into motive may be advisable in some cases, the serious nature of the crime, the premeditation and sophistication involved in this murder, and the fact that appellant would be subject to juvenile jurisdiction for only two months justified certification in this case.


POOLE, Circuit Judge, dissenting:

I respectfully dissent.

The panel is agreed that the jurisdiction of this court to review the decision of the United States District Court for the District of Guam, Appellate Division, which affirmed the order certifying Kingsbury for trial as an adult, exists if at all by virtue of 28 U.S.C. § 1291. Maj.Op., at 742; See Corn v. Guam Coral Co., 318 F.2d 622, 624 (9th Cir. 1963); accord, Agana Bay Development Co. v. Supreme Court of Guam, 529 F.2d 952, 960 n.1 (9th Cir. 1976) (Kennedy, J., dissenting). Section 1291 permits appeals only from "final orders" and this circuit has held that the finality determination is a function of federal law. See Corn v. Guam Coral Co., supra, 318 F.2d at 624.

At least since Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), and as recently as Firestone Tire & Rubber Co. v. Risjord, 449 U.S. --, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), the Supreme Court has carefully described the considerations relevant to determining whether a district court's order is final and reviewable under § 1291. It therefore comes as some surprise that in analyzing appellate jurisdiction in this case, the majority ignores § 1291 and the formidable host of authorities analyzing it and draws instead an analogy to 28 U.S.C. § 1257 a statute which has nothing to do with the jurisdiction of any circuit court of appeals. 1 As I find this analogy puzzling, unnecessary and irrelevant, and as application of the finality principles of § 1291, and the current law of this circuit, compel the conclusion that an order of the Guam courts certifying a juvenile for trial as an adult simply is not final and therefore not appealable to this court before trial, I respectfully dissent.


A final order of a district court for purposes of § 1291 is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting, Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). It is final "in the sense of terminating the criminal...

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