U.S. v. C.G.

• Decision Date: 19 July 1984
• Docket Number: No. 83-7576,83-7576
• Citation: 736 F.2d 1474
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. C.G., * Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1474

736 F.2d 1474

UNITED STATES of America, Plaintiff-Appellee, v. C.G., ^* Defendant-Appellant.

No. 83-7576.

United States Court of Appeals, Eleventh Circuit.

July 19, 1984.

J. Mark White, Birmingham, Ala., for defendant-appellant.

Frank Donaldson, U.S. Atty., Dayle E. Powell, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before KRAVITCH, JOHNSON and HATCHETT, Circuit Judges.

KRAVITCH, Circuit Judge:

This appeal presents three issues of first impression in this circuit, affecting the administration of the Juvenile Justice and Delinquency Prevention Act of 1974, 18 U.S.C. Secs. 5031-5042. We must decide: (1) whether a district court's order denying a juvenile defendant's motion to strike certification and granting the government's motion to transfer is appealable prior to trial; (2) the standard of review for certifications under section 5032; and (3) the extent to which findings of fact must be made in connection with a transfer under section 5032. For the following reasons, we affirm the order of the district court in this case insofar as it denies appellant's motion to strike certification, and we vacate the order insofar as it grants the government's motion to transfer, and remand for further findings.

I. STATUTORY FRAMEWORK

We begin by briefly outlining the pertinent provisions of section 5032. There are two steps in the procedure for determining whether a juvenile will be prosecuted as an adult in federal court. First, in order to proceed against the juvenile in federal court, the Attorney General, or his delegate under 28 C.F.R. Sec. 0.57, must certify to the district court

that the juvenile court or other appropriate court of a State (1) does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, or (2) does not have available programs and services adequate for the needs of juveniles.

18 U.S.C.A. Sec. 5032 (Supp.1984).

Second, in order for the juvenile to be prosecuted as an adult, (1) the juvenile must be "alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a felony punishable by a maximum penalty of ten years imprisonment or more, life imprisonment, or death," id., (2) the Attorney General, or his delegate, must file a motion to transfer; and (3) the district court must find that "such transfer would be in the interest of justice," id., after conducting a hearing and making findings of fact relating to

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 those efforts; the availability of programs designed to treat the juvenile's behavioral problems.

Id.

II. FACTS AND PROCEEDINGS BELOW

Prior to the incidents giving rise to the current prosecution, appellant had had a turbulent adolescence in Alabama: he had been adjudged delinquent for a number of minor offenses and had been forced to withdraw permanently from school. During the summer of 1982, at the age of seventeen, appellant allegedly participated in a prostitution ring operating between Birmingham and Las Vegas. Specifically, he allegedly recruited, transported and received money from minor and adult females engaged in prostitution. In August 1982, he was arrested by Nevada authorities, but was released when his parents sent him a bus ticket home. In October 1982, appellant was arrested by a Birmingham police officer whom he allegedly had tried to recruit for prostitution. The charges against him in state court were ultimately dismissed.

On June 14, 1983, the government filed an eight-count information charging appellant with conspiracy, racketeering and Mann Act violations under 18 U.S.C. Secs. 371, 1952(a)(3), 2421 and 2423. The government also filed a motion to transfer, signed by an Assistant U.S. Attorney, with respect to the two counts under section 2423 alleging transportation of minor females for prostitution. A superseding motion to transfer, signed by the U.S. Attorney, was filed on August 16. On August 29, appellant filed a motion to dismiss the motion to transfer and a motion to strike the certification. A certification, signed by the U.S. Attorney, was filed on September 7. After a hearing in chambers, the district court, in an order dated September 28, 1983, ruled in favor of the government on all three motions.

Appellant filed a notice of appeal, and the government moved that the appeal be dismissed on the ground that the district court's order was not a final judgment appealable under 28 U.S.C. Sec. 1291. On December 1, 1983, a panel of this court ordered that the motion be carried with the case.

III. APPEALABILITY

The government contends that this court lacks jurisdiction under 28 U.S.C. Sec. 1291 inasmuch as the order appealed from does not constitute a final decision of the district court. Even if the order were not a final decision, however, dismissal of the appeal would be inappropriate, for the order falls squarely within the collateral order exception articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the Court explained:

To come within the "small class" of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.

Id. at 468, 98 S.Ct. at 2458 (footnote omitted); see also In Re: General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106 (7th Cir.), cert. denied, 444 U.S. 870, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979). In this case, there is no real dispute with regard to the first two requirements. The matter appealed from--i.e., whether appellant is to be tried as an adult in federal court--has been finally determined by the district court, and neither affects nor is affected by the merits.

Citing United States v. Cuomo, 525 F.2d 1285 (5th Cir.1976), in which the court reviewed certain certification issues after conviction, the government essentially argues that because the order in question is appealable after trial, it fails to satisfy the third requirement of the exception. We disagree. First, Cuomo dealt only with issues such as the propriety of the Attorney General's delegation of authority to certify, not with issues relating to transfer for prosecution as an adult. More important, the question is not whether a given order is appealable after trial, but whether it is effectively reviewable. As one court has put it, "The third requirement of the collateral order doctrine is that the rights asserted would be lost, probably irreparably, if review were delayed until the conclusion of proceedings in the district court." General Motors, 594 F.2d at 1119. With the prosecution of a juvenile as an adult, several of the benefits and safeguards afforded by the statute--e.g., sealing of records and limitation of inquiries into records, protection from fingerprinting and photographing, and withholding of name and picture from news media, see 18 U.S.C. Sec. 5038--will be irretrievably lost unless the juvenile is permitted to appeal the district court's order before conviction. In this sense, the order approving certification and transfer in the present case is not effectively reviewable at a later stage. Accordingly, we conclude that the order is a collateral one, excepted from the rule of finality, and that we have jurisdiction of this appeal.

We reach the same conclusion under the slightly different formulation of the collateral order doctrine employed by the former Fifth Circuit. In Matter of Covington Grain Co., 638 F.2d 1357 (5th Cir. Unit B 1981), the predecessor of this court stated:

In order to be reviewable under the collateral order doctrine, an order must 1) be independent and easily separable from the substance of the other claims in the action; 2) present a need to secure prompt review in order to protect important interests of any party; 3) be examined in the light of practical, rather than narrowly technical, considerations.

Id. at 1360; see also In re Grand Jury Proceedings, 636 F.2d 81, 83-84 (5th Cir. Unit B 1981); Bennett v. Behring Corp., 629 F.2d 393, 394-95 (5th Cir.1980); accord In re Regency Woods Apartments, Ltd., 686 F.2d 899, 902 (11th Cir.1982). As demonstrated above, the first two requirements are plainly satisfied. The third entails "a balance between 'the inconvenience and cost of piecemeal review on one hand and the danger of denying justice by delay on the other.' " In re Grand Jury Proceedings, 636 F.2d at 84. Given the injustice that would result if appellant were erroneously tried as an adult and forever denied the protections of section 5038, we conclude that the balance in the instant case militates in favor of review at this time. Thus under the former Fifth Circuit's analysis, we have jurisdiction. ¹

IV. CERTIFICATION

On September 7, 1983, the U.S. Attorney filed a certification, stating:

As United States Attorney for the Northern District of Alabama, and pursuant to the authority delegated to me by 18 USC 5032 and 28 CFR Sec. 057, I hereby certify after investigation, as evidenced by the affidavit of Assistant United States Attorney, Dayle E. Powell, dated June 14, 1982 and incorporated herein by reference, that the courts of the State of Alabama do not have jurisdiction over [C.G.] with respect to the alleged violations of criminal law which are the subject of the Motion of [sic] Transfer filed August 16, 1983 in this matter.

Asserting that, actually, the ...