U.S. v. Juvenile Male

• Citation: 923 F.2d 614
• Decision Date: 16 January 1991
• Docket Number: Nos. 90-1754,No. 90-0013M-01,90-1755,No. 90-0012M-01,90-0012M-01,90-0013M-01,s. 90-1754
• Parties: UNITED STATES of America, Appellee, v. JUVENILE MALE, (Dist.Ct.), Appellant. UNITED STATES of America, Appellee, v. JUVENILE MALE, (Dist.Ct.), Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 614

923 F.2d 614

UNITED STATES of America, Appellee, v. JUVENILE MALE, (Dist.Ct. No. 90-0012M-01), Appellant.

UNITED STATES of America, Appellee, v. JUVENILE MALE, (Dist.Ct. No. 90-0013M-01), Appellant.

Nos. 90-1754, 90-1755.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1990.

Decided Jan. 16, 1991.

Robert E. Hough, Jr., Fort Smith, Ark., for juvenile male # 12.

Bennett S. Nolan, Fort Smith, Ark., for juvenile male # 13.

William M. Cromwell, Ft. Smith, Ark., for appellee.

Before FAGG and BEAM, Circuit Judges, and WOODS, ^* District Judge.

BEAM, Circuit Judge.

In these related matters, two juvenile males, P.P. (No. 90-1754) and J.P. (No. 90-1755), appeal the district court's orders transferring them from juvenile to adult court for criminal prosecution pursuant to the Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. Sec. 5032 (1988). Both P.P. and J.P. contend, among other things, that the district court's factual findings were insufficient to support its decisions to transfer them. We do not reach this question, but, instead, dismiss for lack of jurisdiction.

I. BACKGROUND

A juvenile charged with an act of juvenile delinquency ¹ can be proceeded against in federal court only if the Attorney General or his delegate certifies (1) that an appropriate state court does not have, or refuses to exercise, jurisdiction over the juvenile, (2) that the state does not have adequate programs and services to provide for juveniles, or (3) that the offense charged is a crime of violence that is a felony or is among certain specified drug offenses and there is a substantial federal interest warranting the exercise of federal jurisdiction. Id. Here, the United States Attorney for the Western District of Arkansas, as the delegate of the Attorney General, invoked the jurisdiction of the district court by certifying that the offenses with which P.P. and J.P. were charged were crimes of violence.

Once the district court's jurisdiction is established, section 5032 provides that the juvenile is to be proceeded against as a juvenile except under certain circumstances. ² The juvenile can be transferred for criminal prosecution as an adult at his request or upon the government's motion and the court's finding that the interest of justice so demands. The statute requires that the district court consider and make findings in the record on six factors when making the interest of justice determination: "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; [and] the availability of programs designed to treat the juvenile's behavioral problems." Id.

Here, the criminal complaint filed with the district court alleged that P.P. conspired to travel in interstate commerce for the purpose of committing a murder in violation of 18 U.S.C. Sec. 371 (1988). J.P. was charged with travelling in interstate commerce with the intent to commit murder resulting in personal injury and with conspiracy to do the same in violation of 18 U.S.C. Secs. 1958(a), 371 (1988). These were the alleged acts of juvenile delinquency supporting the government's action under section 5032. Based upon these complaints, the government's motion to transfer, and evidence received at the transfer hearing, the district court determined that transferring both juveniles was in the interest of justice.

II. DISCUSSION

Before we can consider whether the transfers were in the interest of justice, we must determine that we have jurisdiction over this matter. ³ As indicated, jurisdiction under section 5032 was invoked by the United States Attorney's certification that P.P. and J.P. had committed crimes of violence. If, as P.P. contends, the alleged conspiracy is not a crime of violence, then the district court may have lacked jurisdiction. Moreover, failure to comply with any of the preliminary requirements of section 5032 may create a jurisdictional defect. While P.P. did not object to the jurisdiction of the district court, the issue of subject matter jurisdiction is properly addressed, even on appeal, sua sponte. See Barclay Square Properties v. Midwest Fed. Sav. & Loan Ass'n, 893 F.2d 968 (8th Cir.1990).

Our review of the adequacy of the certification depends on two related, preliminary issues. We must determine both whether the district court, in the first instance, and this court, on appeal, have the power to review the certification and whether a proper certification is a prerequisite to jurisdiction under section 5032. We hold that the certification is subject to judicial review for compliance with section 5032 and that a certification is necessary to confer federal jurisdiction.

This circuit has not directly addressed whether a certification is subject to judicial review. Cf. United States v. Allen, 574 F.2d 435, 438-39 (8th Cir.1978) (certification that state court is without jurisdiction, without reference to tribal jurisdiction, is adequate). In fact, only two courts of appeals, the Second Circuit and the Eleventh Circuit, have addressed this question. ⁴ In United States v. Vancier, 515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975), the Second Circuit held that it could not review the certification. Vancier contended that, although the government correctly certified that the New York State Juvenile Court did not have jurisdiction over him, he was subject to the jurisdiction of an appropriate court, the New York City Criminal Court. The government countered that the Youthful Offender Program in the city court was not an adequate substitute for the state juvenile court. In finding that the certification was not subject to judicial review, the court noted that the Act contains no provision for judicial review of the Attorney General's certification and no standards by which to evaluate whether an appropriate court has jurisdiction or whether adequate programs and services exist. Id. at 1380. Further, the court recognized several instances where the executive branch is granted unreviewable discretion in law enforcement matters: the grant of immunity to compel testimony, certification that a proceeding is against someone believed to have participated in organized crime, and certification that an interlocutory appeal is not taken solely for delay. Id. at 1381. Thus, the court held that the certification "falls into the category of unreviewable determinations to be made, in this instance, by the Attorney General." Id.

The Eleventh Circuit, in United States v. C.G., 736 F.2d 1474, 1477-78 (11th Cir.1984), relying on Vancier, held that an appellate court "may not inquire into the correctness of the statements made in the certification. Indeed, such an inquiry is appropriate only when the juvenile has established bad faith on the part of the government." The court did not preclude review of a certification to insure compliance with section 5032. "[T]he court may reject a certification where the certifying party is not a proper delegate of the Attorney General, where the certification is not filed in a timely fashion, or where the certification fails to state that the state courts lack or decline jurisdiction or lack appropriate juvenile services." Id. at 1477 (citations omitted). Given proper compliance with section 5032, the court declined to review the factual accuracy of the statement that the Alabama state courts did not have jurisdiction over C.G. Id.

Neither of the above cases persuades us that we cannot review the certification here. In Vancier, the court's decision was based on a lack of standards by which to review the correctness of the certification and the fact that the statute, while qualifying the government's prosecutorial discretion, does not grant the court the power to decide which juvenile cases should be brought in federal court. Vancier, 515 F.2d at 1380-81. And, in C.G., the court recognized that it could review a certification for compliance with section 5032. C.G., 736 F.2d at 1477. Here, no question exists as to the standard we should apply to determine whether the crime alleged is one of the crimes that Congress has determined merits the intervention of the federal courts. Further, we are doing nothing more than reviewing the certification for compliance with section 5032--i.e., whether the United States Attorney certified that one of the crimes specified by Congress had been alleged.

While this court may not have the power to guide a federal prosecutor's discretion we must insure that the exercise of that discretion is within the confines of section 5032. Federal court jurisdiction over juveniles who commit acts that if committed by an adult would violate federal law is limited. Thus, we hold, in accordance with the plain language of section 5032, that filing a certification in compliance with section 5032 is a jurisdictional requirement.

This court has held that compliance with the certification requirement of section 5032 is necessary to properly invoke federal jurisdiction. In Allen, 574 F.2d at 438, the juvenile asserted that the certification was invalid because it did not address the availability of jurisdiction in the tribal court. ⁵ The court held that, while certification is necessary to invoke jurisdiction under section 5032, the plain language of the statute requires certification only in regard to the jurisdiction of the state courts and not the tribal court. Id. at 438-39. In accord with Allen, we reaffirm that a certification in compliance with section 5032 is necessary to invoke federal jurisdiction under that section. See United States v. Brian N., 900 F.2d 218, 222-23 & n. 8 (10th Cir.1990) (noting that jurisdictional prerequisites under section 5032 include certification requirement). Cf. United...