U.S. v. Cuomo
| Decision Date | 16 January 1976 |
| Docket Number | No. 74--4210,74--4210 |
| Citation | 525 F.2d 1285 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tommy CUOMO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
C. Larry Mathews, Jr., El Paso, Tex., (Court-appointed), for defendant-appellant.
John E. Clark, U.S. Atty., San Antonio, Tex., William B. Hardie, Jr., Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before WISDOM, CLARK and RONEY, Circuit Judges.
The novel questions this appeal presents concern the manner in which the federal government is required to prosecute a case against a juvenile under the Juvenile Justice and Delinquency Prevention Act of 1974, 18 U.S.C. §§ 5031--42.
Tommy Cuomo, the defendant-appellant, with three other juveniles, was arrested on September 24, 1974, for allegedly participating in a robbery of $6000 from the First National Bank in Fabens, Texas. The juveniles ranged in age from sixteen to ten; Cuomo was thirteen. The United States magistrate issued the arrest warrant on a complaint filed by the Federal Bureau of Investigation. The magistrate then placed Cuomo in federal custody and lodged him in the El Paso County Jail for six days, until he was released on bond.
Bond conditions formulated by the magistrate included requirements that Cuomo immediately register at school, that he remain at home after school unless accompanied by one of his parents, and that he conduct himself properly in class at all times and create no disturbance. On October 25 the United States magistrate issued an arrest warrant based on alleged violations of the bond. Again, Cuomo was confined in the El Paso County Jail for a six-day period after which bond was reinstated. In a trial before the district court on December 3, 1974, Cuomo was found guilty of violating 18 U.S.C. § 2113. 1
Section 5032 of 18 U.S.C. reads, in part:
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 an appropriate district court of the United States 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.
If the Attorney General does not so certify, such juvenile shall be surrendered to the appropriate legal authorities of such State.
The government filed two certifications in this case. The Assistant United States Attorney in charge of this case signed and filed the first on November 12, 1974. After the defendant filed a motion to strike this certification, the United States Attorney signed another certification and filed it on December 2, 1974, the day before trial. The district court denied the defendant's motion to strike the second certification on December 3, 1974.
The appellant first contends that § 5032 prohibits any official other than the Attorney General from making the required certification. If, however, the statute is not so limited, the appellant argues that a proper certification has not been made because of the Attorney General's failure to delegate his responsibility to the prosecuting attorneys who actually filed the certifications.
The argument that the statute must be interpreted as limiting the certification power to the Attorney General is based upon United States v. Giordano, 1974, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. In Giordano the Supreme Court held, in construing 18 U.S.C. § 2516(1), 2 that Congress intended specifically to limit, to the Attorney General and his designated Assistant Attorney General, the power to authorize applications for wiretap permits. The appellant contends that § 5032 should be construed similarly to § 2516(1), in that the congressional intent in each case--to limit federal involvement in particular areas--is similar. 3
Two factors militate against the appellant's construction of the Act. First, the Giordano Court held that 28 U.S.C. § 510, 4 which might otherwise provide authority for the Attorney General to delegate his powers, did not apply where 'the matter of delegation is expressly addressed'. 416 U.S. at 514, 94 S.Ct. at 1823. In Giordano, the statute gave power to the Attorney General and 'any Assistant Attorney General specifically designated by the Attorney General'. Here, the statute says nothing about delegation, and § 510 is therefore presumptively applicable. The second distinguishing factor in Giordano lies in the congressional history relied upon by the Court. The Court found that this history supported the view that Congress desired to screen wiretap applications only through the highest-level Justice Department officials, through 'publicly responsible official(s) subject to the political process'. 5 Here, however, there is no analogous legislative history that suggests that only the Attorney General was to be allowed to screen requests to prosecute juveniles. In short, Giordano does not apply here, nor is there any other authority which supports the appellant's extremely narrow reading of § 5032. 6
The next question, then, is whether the Attorney General has in fact delegated his § 5032 power to the Assistant United States Attorney and United States Attorney who filed certifications in this case. Order No. 579--74, 39 Fed.Reg. 37771 (Oct. 24, 1974) states that:
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.
28 C.F.R. § 0.57.
There is no mention of delegation to Assistant United States Attorneys. Therefore, the certification filed on November 24, 1974, by the Assistant United States Attorney, may not have been a certificate within the meaning of the statute. 7 We need not decide this issue here, however.
Order No. 579--74 does make express provision for further delegation to United States Attorneys, to whom it authorizes the Assistant Attorney General of the Criminal Division of the Justice Department to redelegate his § 5032 powers. This order is within the scope of § 510, which allows the Attorney General to authorize the performance of any of his functions by any other Justice Department officer. The final question, then, is whether the Assistant Attorney General delegated his § 5032 power to the United States Attorney who purported to act within that power in this case.
A copy of a teletype signed by Henry Petersen, Assistant Attorney General of the Criminal Division, was submitted to the district court on November 15, 1974. The teletype reads, in part, as follows:
The certification required under the new subsection 5032 should be made by the United States Attorney of the District in which the offense occurred. Authority to proceed is based on an Order of the Attorney General and my directive, both dated October 16, 1974. 8
The appellant's argument that this teletype does not constitute a delegation, but merely refers to a delegation, is unpersuasive. The teletype directly states that the United States Attorney has the power to make the required certification. The United States Attorney had the power, therefore, to certify to the district court that the Texas courts did not want to assume jurisdiction over Cuomo's alleged acts of juvenile delinquency. 9
The appellant argues that, even if a proper certification was filed, the filing was untimely and that this untimeliness requires us to order the case against him dismissed. He stresses that the statute is mandatory in its provision that the juvenile shall not be proceeded against until the certification is filed. He asserts that 'proceeded' is a broad term, so broad, in fact, that the filing of a criminal complaint by the F.B.I. was a 'proceed(ing) . . . in . . . (a) court'. The government, on the other hand, argues that the certification need be filed only prior to arraignment in the district court. 10
We hold that the government's interpretation of § 5032 is correct. We base this holding upon the clear, unequivocal language of the statute. The statute does not expressly apply to the commencement of an action against a juvenile, nor may its certificate requirement reasonably be read as a condition precedent to the apprehension and detention of an alleged juvenile delinquent by federal criminal enforcement authorities and magistrates. The statute says that the alleged delinquent 'shall not be proceeded against in any court', that the certificate should be filed in 'an appropriate district court', and that '(i)f an alleged juvenile delinquent is not surrendered to authorities of the state or the District of Columbia pursuant to this section, any proceedings against him shall be in an appropriate district court
of the United States' (emphasis added). Without deciding the latest possible time for filing, we hold that the filing of a proper certificate prior to arraignment before the district court in the case at bar was sufficient compliance with § 5032 to permit the proceeding against Cuomo to continue. While the provision obviously intends that deference be given state court juvenile processes where they are available, its phraseology requires no abdication of federal jurisdiction to begin an action.
Section 5036 of Title 18 prov...
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...the Texas legislature, it will be presumed, intended to employ the word in that same precise sense. See United States v. Cuomo, 525 F.2d 1285, 1291 (5th Cir. 1976); In re Nissen's Estate, 345 F.2d 230, 235 (4th Cir. 1965). Therefore, the standard of materiality announced by the Supreme Cour......
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...where they are available, its phraseology requires no abdication of federal jurisdiction to begin an action." United States v. Cuomo, 525 F.2d 1285, 1290 (5th Cir.1976). Without deciding whether a certification appended to the government's appellate brief was too late, the Ninth Circuit has......
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