U.S. v. Bilbo, JUVENILE-MAL

• Decision Date: 13 April 1994
• Docket Number: Nos. 93-4959,D,93-5271,JUVENILE-MAL,s. 93-4959
• Citation: 19 F.3d 912
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Dewayne BILBO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v.efendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 912

19 F.3d 912

UNITED STATES of America, Plaintiff-Appellee, v. Robert Dewayne BILBO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. JUVENILE-MALE, Defendant-Appellant.

Nos. 93-4959, 93-5271

Summary Calendars.

United States Court of Appeals,

Fifth Circuit.

April 13, 1994.

Martin E. Regan, Jr., Roger W. Jordan, Jr., Regan & Assoc., New Orleans, LA, for Robert Dewayne Bilbo.

Martin E. Regan, Jr., Regan & Assoc., New Orleans, LA, for Juvenile-Male.

David H. Henderson, Asst. U.S. Atty., Ruth Harris Yeager, Beaumont, TX, for U.S.

Appeals from the United States District Court for the Eastern District of Texas.

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant makes this interlocutory appeal challenging the district court's order transferring the action from juvenile court to one in which he will be prosecuted as an adult. We affirm the district court.

I.

A.

In case number 93-4959, the Government filed a three-count sealed information against Robert Bilbo charging that: (1) on February 3, 1993, he possessed more than five grams of cocaine base (crack) with the intent to distribute it; (2) on March 17, 1993, he possessed more than five grams of crack with the intent to distribute it; and (3) on April 23, 1993, he possessed more than fifty grams of crack with the intent to distribute it. According to an affidavit supplied by Howard Jake Smith, a Sergeant with the State of Texas Department of Public Safety, Narcotics Division, Bilbo made three drug sales to undercover agents. The first and second sales listed in the information involved 22 grams of crack, while the third sale was for 62 grams.

The Government moved to transfer Bilbo for prosecution as an adult, whereupon the district court referred the case to a magistrate judge for a hearing. Following an evidentiary hearing pursuant to 18 U.S.C. Sec. 5032, the magistrate judge issued proposed findings on five of six elements required to support transfer. The magistrate judge found that Bilbo's age ¹ indicated transfer was appropriate. Bilbo's social background, which included a troubled family life with no substantial parental influence or guidance, could be considered neutral or favoring transfer. The nature of the alleged offenses--serious drug crimes--also supported transfer. The magistrate judge further found that Bilbo's extensive prior delinquency record ² and the nature of past treatment efforts and Bilbo's response to those efforts favored transfer. Finally, the magistrate judge determined that Bilbo's present intellectual development and psychological maturity were a neutral factor.

However, the magistrate judge recommended denying the motion to transfer because the Government failed to present any evidence on the availability of federal juvenile treatment programs, a sixth factor that must be considered under Sec. 5032 in determining whether a transfer would be proper. The Government objected to the magistrate judge's recommendation. The district court held an evidentiary hearing on the availability of federal juvenile treatment programs. The court determined the evidence at the supplemental hearing established that better treatment opportunities are available for juveniles in the adult Bureau of Prisons (BOP) programs, and the court adopted the magistrate judge's proposed findings on the first five factors. Accordingly, the court granted the Government's motion, finding five of the six factors listed in Sec. 5032 favored transfer.

B.

In case number 93-5271, the Government filed a sealed information alleging that on May 19, 1993, Bilbo possessed more than 90 grams of crack and 280 grams of cocaine powder with the intent to distribute and carried a firearm during and in relation to that drug trafficking offense. According to an affidavit from Sergeant Smith, Bilbo agreed to sell 94 grams of crack and 280 grams of cocaine powder to an undercover agent for $14,000. Officers discovered that Bilbo's companion, Tony Tolliver, possessed a firearm during the transaction. Tolliver reportedly told the officers that Bilbo gave him the firearm for protection during the transaction.

The Government again moved to transfer Bilbo for prosecution as an adult. Following a hearing, the magistrate judge recommended granting the Government's motion. The magistrate judge adopted the district court's findings from case number 93-4959 on five of the six statutory factors. Regarding the nature of the alleged offenses, the second factor, the magistrate judge found that the seriousness of the two offenses supported transfer. The district court adopted the magistrate judge's recommendation over Bilbo's objection to the sufficiency of the evidence on the availability of federal juvenile programs.

C.

Bilbo obtained a stay of prosecution in both cases pending appeal and this Court granted his motion to consolidate the appeals. The parties have briefed the question whether the district court's transfer order is appealable before trial. Bilbo argues that the district court abused its discretion by transferring him because there had been no prior attempts at rehabilitating him in the juvenile system. Bilbo further contends that the district court committed reversible error in case number 93-4959 by considering the May 19, 1993, offense for which he had not yet been charged in determining whether the nature of the "alleged offense" supported transfer.

II.

A.

This Court has not previously addressed whether a transfer order is immediately appealable, though in United States v. Doe, 871 F.2d 1248, 1250 (5th Cir.1989), the Court considered the merits of a pretrial appeal from such an order. Every Circuit that has considered the issue has held that transfer orders are appealable under the collateral order exception to the final judgment rule. See, e.g., United States v. Gerald N., 900 F.2d 189, 189-90 (9th Cir.1990); In re Sealed Case, 893 F.2d 363, 366-68 (D.C.Cir.1990); United States v. A.W.J., 804 F.2d 492, 492-93 (8th Cir.1986); United States v. C.G., 736 F.2d 1474, 1476-77 (11th Cir.1984).

The collateral order exception permits appeal of an interlocutory order if the district court's ruling conclusively determines the disputed question, resolves an important issue that is completely separate from the merits, and cannot effectively be reviewed on appeal from a final judgment. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The transfer order easily satisfies the first two requirements--it conclusively determines that Bilbo will be tried as an adult and it does not affect the merits of the criminal case. See C.G., 736 F.2d at 1476. The third prong of the test requires a showing that the legal and practical value of the asserted right would be destroyed if it were not vindicated before trial. See Midland Asphalt Corp. v. U.S., 489 U.S. 794, 799, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989).

Other courts have concluded that the legal and practical value of the right to be tried as a juvenile would be destroyed without the concomitant right of immediate appeal of a transfer order. See Gerald N., 900 F.2d at 190-91; In re Sealed Case, 893 F.2d at 366-68; A.W.J., 804 F.2d at 493; C.G., 736 F.2d at 1476-77. These courts note that the "sealing of records and the withholding of name and picture from news media are examples of rights granted to juveniles by 18 U.S.C. Sec. 5038 ... that would be 'irretrievably lost unless the juvenile is permitted to appeal the district court's order before conviction' as an adult." Gerald N., 900 F.2d at 190 (quoting C.G., 736 F.2d at 1477). "In addition, if convicted and sentenced to prison, [the juvenile] would face the distinct possibility of incarceration in an adult penal institution during the pendency of his appeal, since under the Bail Reform Act of 1984 it is no easy matter to obtain bail pending appeal." A.W.J., 804 F.2d at 493. For these reasons, we will hear this appeal prior to trial.

B.

Appellant argues that the district court abused its discretion by transferring him because there had been no prior attempts at rehabilitating him in the juvenile system. "The decision whether to transfer a juvenile to trial as an adult under 18 U.S.C. Sec. 5032 is within the sound discretion of the trial court, provided the court employs and makes findings as to the six criteria outlined in the Code." Doe, 871 F.2d at 1255. The guiding principle in transfer proceedings is whether a transfer would be in the interests of justice. Id. at 1252 (quotations omitted). The statute mandates that the district court consider the following factors in reaching its decision:

the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile's prior delinquency record; the juvenile's present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts; [and] the availability of programs designed to treat the juvenile's behavioral problems.

18 U.S.C. Sec. 5032.

The district court made findings on each of these factors in number 93-4959. Bilbo attacks the court's finding on the fifth factor--the nature of past treatment efforts and the juvenile's response to such efforts. Concerning this factor, the district court found:

[T]he juvenile was adjudicated to have engaged in delinquent conduct with regard to two charges on July 28, 1992 and was placed on probation. Although ordered to report to his probation officer twice per month, Bilbo reported only once at the outset of his probationary period. Furthermore, the present offense occurred while on probation.

Bilbo has failed to cooperate with authorities when previously placed in a supervised situation. His resistance to counseling efforts and defiance of authority may be considered in determining whether juvenile or adult proceedings are appropriate.... Bilbo's poor response...