U.S. v. Mechem

• Decision Date: 13 January 1975
• Docket Number: No. 74--1662,74--1662
• Parties: UNITED STATES of America, Petitioner, v. Honorable Edwin L. MECHEM, United States District Judge, District of New Mexico, and Frankie Chavez, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1193

509 F.2d 1193

UNITED STATES of America, Petitioner, v. Honorable Edwin L. MECHEM, United States District Judge, District of New Mexico, and Frankie Chavez, Respondents.

No. 74--1662.

United States Court of Appeals, Tenth Circuit.

Jan. 13, 1975.

Victor R. Ortega, U.S. Atty., and Richard J. Smith, Asst. U.S. Atty., Albuquerque, N.M., for petitioner.

Larry L. Lamb, Albuquerque, N.M., for respondent Frankie Chavez. ¹

Before SETH, HOLLOWAY and DOYLE, Circuit Judges.

PER CURIAM.

This proceeding was instituted by a petition for writ of mandamus and prohibition filed by the United States. The action seeks an order directing the respondent Judge to vacate an order that the United States withdraw its indictment against respondent Frankie Chavez, a 14-year old juvenile, and substitute an information in its place, in connection with charges of rape and murder in Indian Country, pursuant to 18 U.S.C.A. § 5032 and related provisions for juvenile proceedings. The petitioner further asks that the respondent Judge be ordered to vacate the setting of a juvenile delinquency hearing, refrain from applying juvenile provisions during pendency of the criminal proceedings, and proceed with the trial of Chavez on the indictment.

Deeming the issue raised to be substantial, we ordered an answer to be filed to the petition pursuant to Rule 21(b), F.R.A.P., and stayed the order of the trial court requiring juvenile proceedings as to Chavez. We have now considered the petition, the answer of respondent Chavez, transcripts of hearings in the trial court and authorities and arguments submitted. We agree with the views of the trial court expressed in its order of October 21, 1974, that juvenile proceedings are proper, see --- F.Supp. ---, and accordingly have vacated the stay and denied the extraordinary relief sought.

The petition relates these facts. On August 2, 1974, a federal grand jury in Albuquerque returned an indictment naming Frankie Chavez and two others as defendants on charges of rape and first degree murder in violation of 18 U.S.C.A. §§ 2, 1111, 1152, 1153, and 2031 and § 40A--9--2, N.M.S.A. (1973 Supp.). The offenses allegedly occurred on July 7, 1974.

Chavez was arraigned on August 6. He stood mute on counsel's advice and the trial court entered a plea of not guilty on his behalf. The court learned that Chavez was 14 years of age, his birthdate being November 30, 1959. The Federal Juvenile Delinquency Act then in force, 18 U.S.C.A. §§ 5031--5037, excluded Chavez from treatment under the statute. Section 5031 defined a 'juvenile' as a person who has not attained his eighteenth birthday and 'juvenile delinquency' as violation of a law of the United States committed by a juvenile and not punishable by death or life imprisonment. Since the charges against Chavez were of this serious nature, he was indicted for prosecution as an adult.

However, on September 7, 1974, Public Law 93--415 became effective, substantially amending the Federal Juvenile Delinquency Act. ² Amendments to 18 U.S.C.A. §§ 5031 and 5032 now require that a juvenile under 16 not surrendered to State authorities be proceeded against under the federal juvenile statute, unless he has requested in writing on advice of counsel to be proceeded against as an adult, regardless of the nature of the crime or possible penalty.

Both of the other defendants named in the indictment were over 18 years of age and a severance was ordered for their trials. However, in view of the new statute effective September 7, before Chavez was tried the trial court entered its written order of October 21 directing the United States to withdraw the indictment as to Chavez and to file an information charging juvenile delinquency and requiring the clerk to expunge all records of the indictment pertaining to Chavez. The court also set a hearing on November 18, 1974, for an adjudication of delinquency.

The trial court was of the view that the new delinquency statute controls the manner in which juveniles are proceeded against and is largely procedural and remedial; that although the Act also deals with adjudication of a substantive offense, 'juvenile delinquency,' the general saving statute, 1 U.S.C.A. § 109, does not bar application of the new Act; that the new provisions manifest a policy that children of Chavez's age must be removed from the criminal process. The court concluded that the policy and procedural import of the new Act are more important than the fact that the statute may also entail creation of a substantive offense.

The Government disagrees, arguing that the new amendments relate to a penalty, forfeiture or liability within the meaning of the general saving statute, 1 U.S.C.A. § 109, so that the provisions of the prior law apply, requiring trial of Chavez as an adult. We turn to these arguments and the application of the new Delinquency Act in these circumstances.

The Government argues that the general saving statute preserves Chavez's pre-amendment liability to prosecution as an adult. ³ It says that the amelioration of penalties or the provision in the new statute affording subsequent offenders a defense from criminal prosecution is irrelevant. Reliance is placed on Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383; Perea v. United States Board of Parole, 480 F.2d 608 (10th Cir.); Page v. United States, 459 F.2d 467 (10th Cir.), cert. denied, 410 U.S. 989, 93 S.Ct. 1506, 36 L.Ed.2d 187, and similar cases.

The general saving statute, 1 U.S.C.A. § 109, provides in pertinent part:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. . . .

We cannot agree that the saving statute bars availability of the new Delinquency Act provisions for Chavez. The cases relied on by the Government do not deal with a comparable situation of a statutory change mandating a new basic procedure as to a class of offenders. Marrero held that persons convicted under a narcotics statute expressly prohibiting their consideration for parole could not subsequently be considered for parole, even though the no-parole provision had been repealed following their convictions. See also Perea v. United States Board of Parole, 480 F.2d 608 (10th Cir.). The Court found from the legislative history of the no-parole provisions that Congress intended ineligibility for parole to be part of the penalty, forfeiture or liability incurred by those violating the statute. Thus the statute involved no system apart from the usual criminal process, as we have in this case.

We feel that the answer lies in the fact that by the Juvenile Delinquency Act, Congress has barred criminal prosecution of juveniles in certain circumstances and provided for a completely separate system of treatment for them under State or Federal procedures. 18 U.S.C.A. § 5032, as amended, says that '. . . no criminal prosecution shall be instituted for the alleged act of juvenile delinquency except as provided...