U.S. v. Doe

• Decision Date: 23 August 1999
• Docket Number: No. 98 CR 438(RLC).,98 CR 438(RLC).
• Citation: 74 F.Supp.2d 310
• Parties: UNITED STATES of America, v. John DOE # 1, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 310

74 F.Supp.2d 310

UNITED STATES of America, v. John DOE # 1, Defendant.

No. 98 CR 438(RLC).

United States District Court, S.D. New York.

August 23, 1999.

Mary Jo White, U.S. Attorney for Southern District of New York, New York City (Joshua Berman, John Hillebrecht, Assistant U.S. Attorneys, of counsel), for U.S.

Ruth Liebesman, New York City (Ruth Liebesman, of counsel), for Defendant.

OPINION

ROBERT L. CARTER, District Judge.

The United States of America (the "government") has charged defendant John Doe # 1 ("John Doe"), a male who at the time of his arrest had not reached the age of eighteen, with eleven acts of juvenile delinquency, including murder, attempted murder, robbery, racketeering, assault, and distribution of and possession with intent to distribute crack cocaine and heroin in a superceding juvenile information. Now before the court is the government's motion to transfer John Doe to adult status pursuant to 18 U.S.C. § 5032.

BACKGROUND

The charges against John Doe stem from his alleged involvement in the 165th Street Organization (the "165 Organization"), a criminal organization that operates in New York, New Jersey, and Pennsylvania. John Doe and ten co-defendants are charged with a host of violent acts and acts relating to narcotics trafficking in an indictment filed May 13, 1998. Specifically, John Doe is charged with acts of juvenile delinquency occurring between 1994 and June 19, 1996, including the March 15, 1995 murder of an individual named Francisco Soto.

On September 18, 1998, the government moved for transfer John Doe to adult status, asserting that transfer was appropriate under the discretionary transfer provisions of 18 U.S.C. § 5032. At that time, the United States Attorney for the Southern District of New York certified, pursuant to authority delegated to her by the Attorney General of the United States, that the charged offenses include violent felonies and that there is a substantial federal interest in the case to warrant the exercise of federal jurisdiction. See 18 U.S.C. § 5032. After unsuccessful plea agreement negotiations, defendant filed his opposition papers on February 22, 1999, submitting inter alia a psychological evaluation.

By letter dated April 12, 1999, the government responded to the February 22 opposition papers. Additionally, the government moved for an adjournment of the transfer hearing, then scheduled for April 21, 1999, in order to permit the filing of a superceding juvenile information. By letter dated April 14, 1999, defendant objected to the government's reply as untimely, and as raising issues that should have been briefed in the initial motion for transfer. In a conference that same day, the court granted the government's motion for adjournment and gave defendant permission to file a sur-reply due May 3, 1999. The court also directed the government to obtain its own psychological evaluation of John Doe, which was ultimately submitted on May 17, 1999.

In a letter dated May 28, 1999, the government argued for the first time that the transfer of John Doe to adult status is required under the mandatory transfer provision of 18 U.S.C. § 5032. Defendant responded by letter dated June 3, 1999, contending that transfer is not mandatory under the statute, and that in any case, the government had waived a mandatory transfer motion by failing to move for such a transfer in its initial papers.

The hearing to determine whether transfer is appropriate under either the mandatory or discretionary provisions of 18 U.S.C. § 5032 was held on July 28, 1999. At the hearing, the court heard the testimony of Dr. Barry Rosenfeld ("Dr.Rosenfeld"), the psychologist who prepared the evaluation of John Doe for the government, and Dr. Sanford Drob ("Dr.Drob"), the psychologist who prepared the evaluation for the defense.¹ Each witness was cross-examined by the other party. There were no other witnesses. On August 5, 1999, the government submitted a letter briefly addressing the availability of juvenile treatment centers within the Bureau of Prisons system generally, and in a particular corrections center proposed by defendant. The letter stated that after the hearing, the government had spoken to a psychologist who concluded that there are no juvenile treatment programs appropriate for John Doe within the Bureau of Prisons system. By letter dated August 6, 1999, defendant rebutted the government's assertions, and objected to the government's letter as an attempt to introduce the testimony of a witness not subject to cross-examination.

DISCUSSION

At the outset, the court is compelled to comment on the government's dilatory conduct in its prosecution of the instant motion. The court is particularly dismayed by the government's repeated attempts to raise new issues and present evidence in an untimely manner. The government should not have taken months, for example, to file a superceding juvenile information nor to move for mandatory transfer. While the court's patience has certainly been tried by this behavior, the court will nonetheless proceed on the merits of the motion as defendant has not been prejudiced by the government's negligence and inexcusable delays.

A. Mandatory Transfer

Section 18 U.S.C. § 5032 provides in relevant part:

a juvenile who is alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a felony offense that has as an element thereof the use, attempted use, or threatened use of physical force against the person of another, or that, by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense, or would be an offense described in [the listed sections], and who has previously been found guilty of an act which if committed by an adult would have been one of the offenses set forth in this paragraph or an offense in violation of a State felony statute that would have been such an offense if a circumstance giving rise to Federal jurisdiction had existed, shall be transferred to the appropriate district court of the United States for criminal prosecution.

Therefore, transfer of a juvenile is mandatory if (1) the offense charged was committed after the defendant's sixteenth birthday; and (2) the offense charged would be a felony if committed by an adult; and (3) the offense charged either (a) involves the use, attempted use, or threatened use of violence or (b) by its very nature involves a substantial risk that violence may be used in committing the offense, or (c) is one of the offenses specifically enumerated in the statute; and (4) the juvenile was previously found guilty of a crime that would be a felony of the type described in (3) above if committed by an adult. See also United States v. Juvenile Male # 1, 47 F.3d 68, 69 (2d Cir.1995).

According to the probation report submitted by the government, John Doe was convicted as an adult on July 24, 1997 of attempted robbery in the first degree for an incident occurring on May 22, 1996, whereby he along with two others held an individual at gunpoint. Based on this conviction, the government argues that transfer of John Doe to adult status is mandatory. According to the government, a violent felony conviction that occurs at any time prior to the transfer hearing is a predicate conviction under the mandatory transfer provision of § 5032. Defendant contends that he has not been "previously found guilty" because the robbery conviction occurred after the alleged conduct that is the subject of the current transfer hearing. The resolution of this dispute thus turns on an interpretation of the term "previously" in the mandatory transfer provision of 18 U.S.C. § 5032. This issue is evidently one of first impression in the Second Circuit, as well as in the other circuits.

Nevertheless, the court finds guidance in decisions considering similar language in the sentence enhancement provisions of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (the "ACCA"). See also United States v. David H., 29 F.3d 489, 494 (9th Cir.1994) (stating that conclusion regarding § 5032 was required by the Ninth Circuit's interpretation of similar language in sentencing statute and guidelines). The ACCA provides that a defendant convicted of a weapons offense under 18 U.S.C. § 922(g) shall receive a minimum fifteen year sentence if the defendant "has three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). As with § 5032, there is no guidance from Congress as to the meaning of the term "previous."²

In United States v. Talley, 16 F.3d 972, 975-76 (8th Cir.1994), the Eighth Circuit was confronted with the issue of whether a conviction that occurred after the date of the defendant's § 922(g) violation qualified him for sentence enhancement under § 924(e). Akin to its contentions in the instant case, the government in Talley argued that the convictions need only have occurred prior to defendant's sentencing for the § 922(g) violation. Similarly, the defendant in Talley contended that the district court could only consider convictions that occurred before the actual date of the § 922(g) violation.

The court began its analysis with the proposition that in determining the proper scope of a statute, a court must start with its plain language. See id. at 975 (citing Norfolk and Western Ry. Co. v. American Train Dispatchers Ass'n, 499 U.S. 117, 128, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991)). The court also noted that, if unambiguous, the language of a statute "is ordinarily to be regarded as conclusive in the absence of a clearly expressed legislative intent to the contrary." Id. (quotation marks omitted). See also Skubel v. Fuoroli, 113 F.3d 330, 335 (2d Cir.1997). The court then found that the language of § 924(e) did not support the government's interpretation of "previous convictions"...