U.S. v. Doe

• Decision Date: 21 April 1989
• Docket Number: No. 88-5601,88-5601
• Citation: 871 F.2d 1248
• Parties: 27 Fed. R. Evid. Serv. 1360 UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1248

871 F.2d 1248

27 Fed. R. Evid. Serv. 1360

UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.

No. 88-5601.

United States Court of Appeals, Fifth Circuit.

April 21, 1989.

M. Carolyn Fuentes, Asst. Federal Public Defender, San Antonio, Tex., for defendant-appellant.

Gregory D. Anderson, Asst. U.S. Atty., LeRoy Morgan John, and Helen M. Eversberg, U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before KING, WILLIAMS and SMITH, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

John Doe, a juvenile initially entitled to anonymity under 18 U.S.C. Sec. 5038(e), was charged with robbing the Army and Air Force Branch Exchange (located at Fort Sam Houston, Texas) with a pistol, in violation of 18 U.S.C. Sec. 2111. He was seventeen at the time of the crime, but the government successfully sought his transfer to adult status for purposes of prosecution. Doe now appeals the order of the district court issued under 18 U.S.C. Sec. 5032 authorizing his transfer to prosecution as an adult rather than as a juvenile for the armed robbery. His claims are: (1) the court abused its discretion, basing its transfer order on clearly erroneous findings of fact, (2) Doe was deprived of his Fifth Amendment due process rights, and (3) the government's motion for transfer was filed without proper authority.

Prior Procedural History

In March, 1988, the United States Attorney for the Western District of Texas, determined that state juvenile authorities had no jurisdiction over Doe. The robbery was committed after his seventeenth birthday, and if the offense had been a state offense, he would have been treated as an adult. The U.S. Attorney requested authorization from the Chief of the General Litigation and Legal Advice Section, Criminal Division, U.S. Department of Justice, to proceed against Doe as an adult for his alleged involvement in the robbery. The Section Doe's whereabouts were unknown until he was apprehended in Kansas on July 27, 1988. He was removed from jail in Kansas and brought back to Texas. A federal public defender was appointed for him, and a formal two day hearing on the motion for transfer was held by the district court on August 26 and 29, 1988. The district court granted the government's motion for transfer and issued an order stating its findings of fact and conclusions of law. It is from that order that the defendant now appeals.

                Chief under the authority of the Attorney General, on April 18, 1988, authorized the U.S. Attorney "to move the court to transfer the proceedings against John Doe to adult prosecution."    A motion for transfer was filed subsequently in the District Court for the Western District of Texas
                

FACTUAL HISTORY

An examination of the appellant's background is relevant to the consideration of the underlying offense. Doe was born on January 24, 1970. His parents were divorced when he was approximately a year old. He and his brothers were shuttled between his alcoholic mother and his father, who remarried. Eventually he and his brothers were left with his mother. The boys essentially raised themselves, doing their own cooking and grocery shopping while receiving no substantial or consistent parental guidance.

While Doe lived in Kansas with his mother he had several scrapes with the juvenile authorities. When he was 13 he was convicted of shoplifting some batteries and gum. Later he was convicted of having stolen a bicycle. He also has a history of drug abuse; he admits to smoking marihuana beginning at age 6 (when it was provided to him by his brothers), using methamphetamine and cocaine beginning at the age of 15, and a use of heroin at least once. He was admitted along with his alcoholic mother to the Valley Hope Drug/Alcohol Rehabilitation Center in Kansas in 1986. After this treatment he continued to smoke marihuana, but apparently stopped using the other drugs.

In September of 1986, Doe moved to San Antonio, where he lived with his brother and was employed in his father's business.

Doe apparently has never had any behavioral problems in school and has no previous history of violent crime. Several adults unrelated to him testified at his trial that he is polite and well-behaved. The government offered no evidence to the contrary. Doe alleges that he has a learning disability and his high school records and testing indicate him to be in the dull/normal intelligence range. He also has serious hearing loss in his left ear.

The series of events leading to this appeal began on August 14, 1987, when Doe stole a car. He was arrested in possession of the stolen vehicle on August 16 and was released after his father posted a $5,000 bond.

On September 14, 1987, Doe stole another car (a 1985 Buick) from a gas station. The prosecution introduced testimony that Doe confessed to going then to Fort Sam Houston over the next few days and learning the routine of the military police as a means of preparing to rob the Army and Air Force Branch Exchange (hereafter "the Exchange") located on base. These plans were made in conjunction with a friend, Jimmy Jansky, a part-time employee at the Exchange. ¹ On September 21, 1987, Doe borrowed a .22 caliber revolver from a classmate, drove with Jansky in the stolen Buick to the Exchange, donned a ski mask, and proceeded to rob the Exchange. The government's evidence is that he put the pistol at one employee's head and then forced two employees into the rear office, where a night manager was counting the money. He ordered the night manager to fill a sack with money and then fled with approximately $1,700. Jansky drove him away in the stolen Buick.

Doe was stopped with the stolen Buick the next day. After he was arrested he gave the sheriff's deputy and military police sworn statements outlining his involvement in the armed robbery. He then led the authorities to a remote spot where he had hidden the money. They recovered roughly $1,400.

Doe maintains that he was frightened, that if anyone had offered resistance he would have run away, and that he has since felt remorse for the robbery. Doe had completed the 11th grade and was a high school senior at the time of the robbery. He was living in abandoned houses during this time and contends he was desperately trying to stay in high school. Since the robbery Doe's father has severed all ties with him.

On January 19, 1988, Doe entered a guilty plea to state charges of two counts of unauthorized use of a motor vehicle. He received five year concurrent sentences on the two counts. He applied for probation, and on March 24, 1988, his application was granted. He was given eight years probation in an intensive supervision program on the condition that he receive drug and alcohol treatment at the Victory Temple, that he live with and be supervised by Ralph and Thelma Schreiber, and that he complete 800 hours of community service. On April 7, he attended an orientation where the conditions of his probation were explained to him.

On April 8, 1988, Doe was arrested for criminal trespass of a habitation. It is unclear from the record whether this was a burglary attempt or simply another instance of Doe sleeping in an abandoned building. He had been to Victory Temple once, failed to perform any community service and resided with the Schreibers only a short time. The district attorney filed a motion to revoke his probation, but on May 20, 1988, in lieu of revoking his probation the state altered its conditions. Instead of incarcerating him in the Texas Department of Corrections, he was put under custodial supervision in a community based facility known as the Bexar County Adult Probation Restitution Center. On May 20, 1988 he was taken to the Restitution Center to begin his custodial supervision. Some time that night he escaped by pole vaulting over the barbed wire fence of the center. He then fled to Kansas where he was later apprehended.

I. Did the Court Commit Error in Transferring Doe to Prosecution as an Adult?

The governing statute in this case is 18 U.S.C. Sec. 5032. The applicable parts of the law provide:

A juvenile who is alleged to have committed an act of juvenile delinquency and who is not surrendered to State authorities shall be proceeded against under this chapter ... except that, with respect to a juvenile fifteen years and older alleged to have committed an act after his fifteenth birthday which if committed by an adult would be a felony that is a crime of violence ... criminal prosecution on the basis of the alleged act may be begun by motion to transfer of the Attorney General in the appropriate district court of the United States, if such court finds, after hearing, such transfer would be in the interest of justice; ....

Evidence of the following factors shall be considered, and findings with regard to each factor shall be made in the record, in assessing whether a transfer would be in the interest of justice: 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; the availability of programs designed to treat the juvenile's behavioral problems.

Doe was over fifteen and his crime was one of violence, hence the statute applies to him. The district court weighed all six factors mandated by the statute and concluded that:

Factors (2) through (5) weigh heavily in favor of transfer to adult jurisdiction. The age portion of Factor (1) weighs in favor of transfer, but the social-background portion is essentially neutral.

Factor (6) weighs slightly against transfer. The Court is particularly influenced by the violent nature of the offense, the planning and sophistication that went into its execution, the extent of the Defendant...