U.S. v. NJB

• Decision Date: 14 January 1997
• Docket Number: No. 96-4381,96-4381
• Citation: 104 F.3d 630
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. NJB, a Male Juvenile, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 630

104 F.3d 630

UNITED STATES of America, Plaintiff-Appellee, v. NJB, a Male Juvenile, Defendant-Appellant.

No. 96-4381.

United States Court of Appeals Fourth Circuit.

Argued Oct. 28, 1996.

Decided Jan. 14, 1997.

ARGUED: Martin Patrick Sheehan, Sheehan & Nugent, Wheeling, WV; James T. Kratovil, Kratovil Law Offices, Charles Town, WV, for Defendant-Appellant. Paul Thomas Camilletti, Assistant United States Attorney, Wheeling, WV, for Plaintiff-Appellee. ON BRIEF: William D. Wilmoth, United States Attorney, Wheeling, WV, for Plaintiff-Appellee.

Before NIEMEYER and MOTZ, Circuit Judges, and DOUMAR, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge NIEMEYER and Senior Judge DOUMAR joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

A juvenile defendant--"NJB"--appeals the district court's order permitting the Government to prosecute him in federal court as an adult. NJB maintains that the district court lacked jurisdiction to issue its order because of two alleged deficiencies in the Government's certification of his case: the certification does not charge him with committing a violent felony, and does not state a substantial federal interest in his case. Alternatively, NJB asserts that the district court erred in concluding that his juvenile records were complete and that he had previously been found guilty of an act that would constitute a crime of violence if committed by an adult. The district court properly exercised jurisdiction in this case and did not err in any of its related rulings. We therefore affirm.

I.

On February 29, 1996, the Government moved pursuant to 18 U.S.C. § 5032 (1994) to proceed against NJB in federal court as an adult. On that same date, the Government filed a certification, as required by § 5032, stating that the offense charged against NJB "is a crime of violence that is a felony" and that "there is a substantial federal interest in the offense to warrant the exercise of Federal jurisdiction." The Government subsequently filed a one-count information charging that NJB killed David Brown in furtherance of a continuing criminal enterprise in violation of 21 U.S.C. § 848(e)(1)(A) (1994).

NJB moved to dismiss the information, alleging that the district court did not have subject matter jurisdiction over the action and that the Government had not properly certified that his juvenile records were complete. The district court held a hearing to determine whether to transfer NJB to federal court and try him as an adult. The court heard argument from the parties, and testimony from several witnesses. The district court then issued a well-reasoned order, denying NJB's motion to dismiss, and granting the Government's motion to proceed against him as an adult.

II.

Initially, NJB asserts that the district court lacked jurisdiction over him. Federal jurisdiction over a juvenile offender is established under 18 U.S.C. § 5032, which provides that criminal proceedings against minors may be initiated only on a certification from the Attorney General of the United States. This responsibility has been delegated to the United States Attorneys. See 28 C.F.R. § 0.57 (1996). The certification must state a "substantial Federal interest in the case" and one of three circumstances: 1) the state juvenile court does not have, or has refused, jurisdiction; or 2) the state does not have available adequate programs for juveniles; or 3) "the offense charged is a crime of violence that is a felony," or an enumerated drug or weapons offense. 18 U.S.C. § 5032 (first paragraph).

In this case, the United States Attorney for the Northern District of West Virginia certified that NJB was charged with a violent felony, specifically a violation of 21 U.S.C. § 848(e), and that there was a substantial federal interest justifying federal prosecution of NJB's case. We recently held judicially reviewable the Attorney General's certification, including his findings of a crime of violence and of a substantial federal interest. See United States v. Juvenile Male # 1, 86 F.3d 1314, 1319-21 (4th Cir.1996). Therefore, we turn to NJB's arguments concerning the sufficiency of the certification.

A.

NJB first argues that the certification was insufficient because § 848(e) is not a "crime of violence." NJB maintains that § 848(e) does not constitute a separate, violent offense, but is instead a penalty enhancement for the non-violent offense created by 21 U.S.C. § 848(c). We review de novo this question of statutory interpretation. See United States v. Hall, 972 F.2d 67, 69 (4th Cir.1992).

Section 848(e)(1) provides:

(e) Death Penalty

(1) In addition to the other penalties set forth in this section--

(A) any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) of this title who intentionally kills ... an individual ... shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death; and

(B) any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution or service of a prison sentence for, a felony violation of this subchapter or subchapter II of this chapter who intentionally kills ... any Federal, State or local law enforcement officer engaged in, or on account of, the performance of such officer's official duties ... shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death.

21 U.S.C. § 848(e)(1).

NJB asserts that because § 848(e)(1) applies "[i]n addition to other penalties set forth in this section," § 848(e) must set forth a penalty enhancement, not a separate crime. NJB also points to the title of the section--"Death Penalty"--as proof that § 848(e)'s sole purpose is to apply a new penalty to certain § 848(c) "continuing criminal enterprise" ("CCE") violations.

We begin our analysis with the Supreme Court's decision in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). In Garrett the Supreme Court considered whether § 848, as originally enacted (which at that time only outlawed CCE violations and included none of the language at issue in this case), created a substantive offense separate from its predicate offenses, and whether a subsequent CCE prosecution violated the Double Jeopardy Clause. In holding that § 848 was a separate offense, Garrett directed that analysis of whether a statute creates a separate offense is a question of statutory interpretation; a court must discern the "legislative intent" based upon "[t]he language, structure, and legislative history" of the statute. Garrett, 471 U.S. at 779, 105 S.Ct. at 2412.

The language, structure, and legislative history of § 848(e)(1) establish that it is a separate offense, not merely a penalty enhancement. First, several other subsections of § 848 refer to § 848(e) as a separate offense. For example, § 848(i) requires a separate sentencing hearing if the government is seeking the death penalty and "the defendant is found guilty of or pleads guilty to an offense under subsection (e) of this section." 21 U.S.C. § 848(i) (emphasis added). Section 848(n) lists the aggravating factors to be considered in punishing "an offense under subsection (e)." 21 U.S.C. § 848(n). See also 21 U.S.C. § 848(j) (describing the proof necessary for mitigating and aggravating factors "when a defendant is found guilty of or pleads guilty to an offense under subsection (e) of this section"); 21 U.S.C. § 848(p) (allowing life imprisonment if the death penalty is not imposed and "[i]f a person is convicted for an offense under subsection (e) of this section"). The fact that the statute itself cross-references to § 848(e) as a distinct "offense" clearly expresses Congress' intent that § 848(e) be a separate crime.

Second, § 848(e) cannot be a penalty enhancement that only applies "in addition to the other penalties set forth in this section" because, in fact, § 848(e) does not apply solely to § 848 offenses. Section 848(e)(1)(A) also covers intentional killing while "engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) of this title." 21 U.S.C. § 848(e)(1)(A). Section 848(e)(1)(B) applies even more broadly to the intentional killing of a law enforcement officer pursuant to "a felony violation of this subchapter or subchapter II of this chapter." 21 U.S.C. § 848(e)(1)(B). The express statutory language thus provides that the predicate offenses which trigger a § 848(e) violation include statutory provisions outside § 848, and directly contradicts any argument that § 848(e) is a penalty enhancement for a § 848(c) violation.

Third, in concluding that the congressional intent to create a separate offense was "indisputable" in Garrett, 471 U.S. at 784, 105 S.Ct. at 2414, the Supreme Court relied upon the fact that under the CCE statute "a separate penalty is set out, rather than a multiplier of the penalty established for some other offense." Id. at 781, 105 S.Ct. at 2412. The same is true here. The Garrett Court also relied on the fact that the statute before it was "aimed at a special problem. [Its] language is designed to reach the 'top brass' in the drug rings, not the lieutenants and foot soldiers." Id. at 781, 105 S.Ct. at 2413. Section 848(e) is similarly aimed at special and serious crimes: killing a law-enforcement officer in connection with a drug offense, or killing in furtherance of a continuing criminal enterprise, large-scale drug distribution, or large-scale drug importation.

Finally, as the Fifth Circuit noted in United States v. Villarreal, 963 F.2d 725, 728 (5th Cir.1992), the legislative history...