U.S. v. Angelo D.

• Citation: 88 F.3d 856
• Decision Date: 05 July 1996
• Docket Number: No. 96-2010,96-2010
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ANGELO D., a male juvenile, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 856

88 F.3d 856

UNITED STATES of America, Plaintiff-Appellee, v. ANGELO D., a male juvenile, Defendant-Appellant.

No. 96-2010.

United States Court of Appeals, Tenth Circuit.

July 5, 1996.

Submitted on the briefs. ^*

John J. Kelly, United States Attorney; Norman C. Bay, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Billy R. Blackburn, Albuquerque, New Mexico, for Defendant-Appellant.

Before BALDOCK, BRORBY and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

This appeal stems from a district court order granting the government's certification to proceed against the defendant juvenile in federal court and its motion to proceed against the defendant juvenile as an adult for charges related to a car jacking. Appellant contends the district court did not have jurisdiction to hear the case or to transfer the appellant to adult status because neither the government's need certification nor its motion to transfer were signed by the United States Attorney.

On November 1, 1995, the government charged appellant with knowingly and intentionally taking a motor vehicle, while possessing a firearm, from another by force, and violence and intimidation that resulted in serious bodily injury to the victim, in violation of 18 U.S.C. §§ 2119(2), 2 and 924(c)(1). On the same day, the government filed a certification stating there was "a substantial federal interest in the case to warrant the exercise of federal jurisdiction." The certification was signed by First Assistant United States Attorney Robert J. Gorence "for John J. Kelly, United States Attorney." On November 7, 1995, the government filed a motion to proceed against appellant as an adult. This motion was signed by Louis E. Valencia, Assistant United States Attorney. On December 26, 1995, appellant filed a motion to dismiss for lack of jurisdiction because the United States Attorney had failed to sign the certification. The district court held a hearing on the above issues in which he denied appellant's motion to dismiss and granted the government's motion to proceed against the appellant as an adult. This appeal followed.

Appellant raises two issues: 1) whether the district court obtained jurisdiction to hear the case when the government's need certification was not signed by the United States Attorney; and 2) whether the district court could transfer appellant to adult status when the government's motion to transfer was not signed by the United States Attorney.

I

Before reaching the merits of the case we must determine whether we have jurisdiction to hear this appeal. Although an issue of first impression in the Tenth Circuit every circuit that has addressed the issue has held an order transferring a juvenile to be tried as an adult is immediately appealable under the collateral order doctrine. ¹ The collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), provides limited exceptions to the final judgment rule for interlocutory appeals where the district court's order: "(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3)[is] 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, 2458, 57 L.Ed.2d 351 (1978) (internal quotation marks omitted)). The first two factors of the collateral order doctrine are clearly present. The transfer order conclusively determines whether the defendant is to be tried as an adult or a juvenile and resolves an important issue separate from whether the juvenile is innocent or guilty of the current charges. The closer question is whether the transfer order is effectively unreviewable on appeal from a final judgment. The Federal Juvenile Delinquency Act's purpose 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). As our colleagues on the Second Circuit stated:

The legal and practical benefits of being tried as a juvenile--which include pretrial detention in a foster home or community-based facility near the juvenile's home instead of in an adult prison, see 18 U.S.C. § 5035, and the sealing of records and the withholding of the juvenile's name and picture from the media, see 18 U.S.C. § 5038--would be destroyed if the defendant were forced to wait until after trial and a final judgment in order to appeal.

Doe, 49 F.3d at 865. Our belief that an appeal from a final judgment would do little to resurrect the special protections afforded juvenile defendants leads us to join our sister circuits in concluding that an order transferring a juvenile to adult status is immediately appealable under the collateral order doctrine.

In its brief, the government "acknowledges that the Courts of Appeals have uniformly held that a juvenile defendant may appeal a transfer order under the collateral order doctrine." The government alleges, however, that the collateral order doctrine does not apply in this case because appellant is appealing based on the procedural requirements of the transfer order rather than on the merits of the transfer order itself. We are unpersuaded by this distinction. The justifications for allowing the immediate appeal of transfer orders remain the same regardless of whether the appeal is based on an alleged procedural or substantive deficiency. The government fails to provide us with any authority showing a distinction between appeals of transfer orders based on procedural as opposed to substantive claims. On the contrary, we found several opinions from our sister circuits addressing interlocutory appeals alleging procedural deficiencies with transfer orders and certifications. See United States v. Three Male Juveniles, 49 F.3d 1058, 1062 (5th Cir.1995) (appellant challenged certification because current Attorney General had not delegated her authority to United States Attorney who had signed the order); United States v. Juvenile Male, 923 F.2d 614, 620 (8th Cir.1991) (court found district court lacked jurisdiction over transfer proceeding because government had not complied with certain jurisdictional prerequisites); United States v. Doe, 871 F.2d 1248, 1257 (5th Cir.) (finding no procedural defect in motion to transfer signed by an Assistant United States Attorney), cert. denied, 493 U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257 (1989). Because a juvenile is not any less prejudiced by a criminal proceeding based on an improper jurisdictional basis than on one based on an improper substantive basis we find this distinction to be without merit.

II

Having determined we have jurisdiction over this interlocutory appeal we will now address appellant's first issue. Appellant contends the district court did not have jurisdiction to hear the case because the government's need certification was signed by an Assistant United States Attorney rather than by the United States Attorney. Proper certification is a prerequisite to federal jurisdiction over juveniles. See Brian N., 900 F.2d at 222-23. We review statutory interpretation de novo. Id. at 220. The relevant portion of the Federal Juvenile Delinquency Act provides:

A juvenile alleged to have committed an act of juvenile delinquency ... shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States ... that [inter alia] there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.

If the Attorney General does not so certify, such juvenile shall be surrendered to the appropriate legal authorities of such State.

18 U.S.C. § 5032. Appellant claims the above jurisdictional requirements were not met because the certification was signed by Assistant United States Attorney Gorence. The government claims Mr. Gorence was properly delegated with the authority to sign the certification. Under 28 U.S.C. § 510 the Attorney General may delegate her authority to perform any function to "any other officer, employee, or agency of the Department of Justice." Pursuant to this statute the government directs our attention to 28 C.F.R. § 0.57 which provides:

The Assistant Attorney General in charge of the Criminal Division and his Deputy Assistant Attorneys General are each authorized to exercise the power and authority vested in the Attorney General by sections 5032 and 5036 of Title 18, United States Code, relating to criminal proceedings against juveniles. The Assistant Attorney General in charge of the Criminal Division is authorized to redelegate any function delegated to him under this section to United States Attorneys and to the Chief of the Section within the Criminal Division which supervises the implementation of the Juvenile Justice and Delinquency Prevention Act (18 U.S.C. 5031 et seq.).

The Assistant Attorney General of the Criminal Division of the United States Department of Justice issued a Memorandum on March 12, 1985, delegating "to United States Attorneys the authority of the Assistant Attorney General in charge of the Criminal Division pursuant to 18 U.S.C. 5032, 5036, and 28 C.F.R. 0.57." The government next draws our attention to 28 C.F.R. § 0.131 which further provides:

Each U.S. Attorney is authorized to designate any Assistant U.S. Attorney in his office to perform the functions and duties of the U.S. Attorney during his absence from office, or with respect to any matter from which he has recused himself, and to sign all necessary documents and papers, including indictments, as Acting U.S. Attorney while performing such functions and duties.

Finally, the...