U.S. v. Hill

• Decision Date: 09 August 1976
• Docket Number: No. 75-1629,75-1629
• Citation: 538 F.2d 1072
• Parties: UNITED STATES of America, Appellee, v. William David HILL, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1072

538 F.2d 1072

UNITED STATES of America, Appellee, v. William David HILL, Appellant.

No. 75-1629.

United States Court of Appeals,

Fourth Circuit.

Argued April 5, 1976.

Decided Aug. 9, 1976.

Peter L. Sissman, Fairfax, Va., for appellant.

Thomas K. Berger, Asst. U. S. Atty., Alexandria, Va. (William B. Cummings, U. S. Atty., Norfolk, Va., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, WIDENER, Circuit Judge, and HADEN, District Judge. ^*

WIDENER, Circuit Judge:

This case presents the question of whether a juvenile under the 1974 amendments to the Juvenile Delinquency Act is entitled to indictment by grand jury and trial by jury under Article III and the Fifth and Sixth Amendments to the Constitution. Also presented is the question of the degree of formality required in certification of the juvenile for a delinquency proceeding in a district court. ¹ We affirm the finding of the district court that the defendant was a juvenile delinquent.

The United States Attorney filed an information against the defendant, William David Hill, on February 28, 1975. Hill was then 18 years of age, having been 17 years of age on November 5, 1974, when he was one of the persons who robbed the Clarendon Bank and Trust Company in Arlington County, Virginia. The information charged that Hill committed an act of juvenile delinquency by committing the bank robbery, which would have been a crime had he been an adult, as a violation of 18 U.S.C. §§ 2113(a) and (d) and 18 U.S.C. § 2.

The defendant properly raised the questions that he should have been indicted by a grand jury and tried by jury upon his demand, and that his juvenile delinquency case had been improperly certified to the district court.

The Juvenile Delinquency Act, prior to 1974, contained a specific provision in 18 U.S.C. § 5033 that the proceeding "shall be without a jury." The juvenile was required to give his consent in writing to be proceeded against as a juvenile delinquent, rather than as an adult, and such consent was "deemed a waiver of a trial by jury." The 1974 amendments to the statute, 18 U.S.C. §§ 5031-5042 inclusive, repealed the consent provision of former § 5033, and the effect of § 5032 of the present statute is that proceedings against juveniles shall be as juveniles under the Juvenile Delinquency Act unless the juvenile has requested in writing, upon advice of counsel, to be proceeded against as an adult. If the juvenile is 16 years of age or older and the act which he is alleged to have committed would be a felony, punishable by more than 10 years' imprisonment, the United States may ask that his prosecution be transferred to a regular criminal prosecution if the transfer would be in the interest of justice.

Thus, the import of the statute has changed; formerly, it provided for trial of a juvenile as an adult unless the juvenile consented to be tried as a juvenile; now, it provides for trial of a juvenile as a juvenile unless he requests trial as an adult. Formerly, the statute provided for trial without a jury; now, the statute is silent as to trial by jury.

The defendant contends that Article III and the Sixth Amendment entitled him to trial by jury on demand. We do not agree.

An examination of the present Juvenile Delinquency Act shows that its purpose is to be helpful and rehabilitative rather than punitive, and to reduce, at least to some extent, the stigma of criminal conviction. To briefly abstract some of the provisions of the statute, for example, the defendant is not adjudged to be guilty as a criminal, rather, he is adjudged to be a juvenile delinquent, see § 5037; upon being taken into custody, his parents, guardian, or custodian shall be notified of the fact, as well as of his rights, see § 5033; a guardian ad litem may be appointed by a magistrate, who shall release the juvenile to a responsible party in lieu of bond or bail, see § 5034; he may be detained only in a juvenile facility or another suitable place and, if possible, in a foster home or community based facility rather than jail, see § 5035; a special speedy trial provision is included, see § 5036; broad powers of disposition are granted, including confinement far less than for adult offenses, see § 5037; the disclosure of records of a juvenile proceeding is severely limited, see § 5038; he shall not be placed or detained in an adult jail in which he has regular contact with adults convicted of crime or awaiting trial on criminal charges, see § 5039; and his parole shall be granted as soon as the board is satisfied he is likely to remain at liberty without violating the law and when such release would be in the interest of justice, see § 5041.

The above recitations make it clear that the treatment of juveniles ² is a far cry from that accorded the common criminal.

While a series of cases with respect to juveniles have accorded them certain rights, ³ in order that the juvenile delinquency proceeding be conducted as one that is fundamentally fair, the Supreme Court, in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), specifically held that a jury was not required in a State juvenile delinquency proceeding, and stated that "one cannot say that in our legal system the jury is a necessary component of accurate fact finding." While the opinion of the Court was by a plurality of four justices, five joined in the holding with respect to trial by jury.

The McKeiver case was an appeal from the Supreme Court of Pennsylvania and was decided under the due process clause of the Fourteenth Amendment. Since then circuits which have considered the matter have found that the standard is no less applicable to the courts of the United States. United States v. Torres, 500 F.2d 944 (2d Cir. 1974); Cotton v. United States, 446 F.2d 107 (8th Cir. 1971); United States v. Salcido-Medina, 483 F.2d 162 (9th Cir. 1973); United States v. King, 482 F.2d 454 (6th Cir. 1973).

We follow the holdings of those courts and hold that the same standard should apply to courts of the United States as to courts of various States in determining when trial by jury is required in juvenile delinquency proceedings. We see nothing in the statute which would cause us to believe that the proceeding against Hill was essentially criminal rather than an ascertainment of status as a juvenile delinquent.

Since Hill was being tried as a juvenile delinquent and not as an adult, we hold that he had no right to trial by jury, and are of opinion McKeiver controls the question. The fact that an Act of Congress denied a juvenile defendant trial by jury under the former statute, and an act of the district court denied him trial by jury under the present statute should make no difference. Since the essential nature of the proceeding was the ascertainment of his status as a juvenile delinquent rather than his conviction as a criminal, the Constitution does not require trial by jury.

The defendant argues that United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), requires a different result. In Jackson, the federal kidnapping statute authorized the death penalty only in aggravated cases upon the recommendation of a jury after a jury trial. So, if a defendant waived trial by jury and was tried to the court on a plea of not guilty, or if he had pleaded guilty, the death penalty could not be imposed. The court held that the necessary requirement of waiver of a jury trial to escape the possible imposition of the death penalty was an impermissible burden on the defendant's basic right to trial by jury and struck down the death penalty provision of the statute on that ground. In Jackson, however, the holding of the Court necessarily was that the defendant had a right in a criminal prosecution to trial by jury as to his guilt whether or not the death penalty were imposed. In the case of a juvenile delinquent, there is no constitutional right to trial by jury in the ascertainment of the status of a defendant as a juvenile delinquent, and if the defendant should wish to be treated as a criminal rather than as a juvenile delinquent, he is free so to request. The status places no compulsion upon him. It does no more than to provide an alternative which he is free to choose should he so desire. Accord United States v. Torres, 500 F.2d 944 (2d Cir. 1974) (decided under the Juvenile Delinquency Act prior to 1974 amendments). Cf. United States v. King, 482 F.2d 454 (6th Cir. 1973); contra, Nieves v. United States, 280 F.Supp. 994 (S.D.N.Y.1968).

The next argument of the defendant is that he had the right to be indicted by a grand jury.

The statute, § 5032, provides that the proceeding "shall proceed by information." Also, § 5031 provides that juvenile delinquency is a violation of law "which would have been a crime if committed by an adult." Since the Fifth Amendment provision requiring grand jury indictment on its face applies only to "a capital, or otherwise infamous crime," and since McKeiver, among other cases, has held that juvenile delinquency is not a crime, the Constitution on its face has no application to the claim of the defendant. See Kent v. United States, 383 U.S. 541, 555, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); In re Gault, 387 U.S. 1, 15, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). While it is true Kent and Gault did not hold that a grand jury was not required in juvenile proceedings, those cases did recite that its absence or the absence of like formalities were within the intent of the various juvenile statutes. Since the defendant has not been charged with a crime, and since the intervention of a grand jury plays no part in the essential fairness of the proceeding so far as "accurate fact finding" is concerned, McKeiver, 403 U.S. at 543, 91 S.Ct. 1976, we are of opinion the statutory provision providing for proceeding by information rather than indictment is free from constitutional infirmity as to the claim of conflict with the Fifth Amendment.

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