U.S. v. A.R.

• Decision Date: 25 October 1994
• Docket Number: No. 93-3572,93-3572
• Citation: 38 F.3d 699
• Parties: UNITED STATES of America v. A.R., A Male Juvenile, A.R., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 699

38 F.3d 699

63 USLW 2320

UNITED STATES of America v. A.R., A Male Juvenile, A.R., Appellant.

No. 93-3572.

United States Court of Appeals Third Circuit.

Argued May 26, 1994.

Decided Oct. 25, 1994.

Frederick W. Thieman, U.S. Atty., Bonnie R. Schlueter, Mark A. Rush (argued), Asst. U.S. Attys., Pittsburgh, PA, for appellee.

Thomas S. White, Federal Public Defender, W. Penn Hackney, First Asst. Federal Public Defender, Karen Sirianni Gerlach, Asst. Federal Public Defender, Michael J. Novara (argued), Office of Federal Public Defender, Pittsburgh, PA, for appellant.

Before: COWEN and ROTH, Circuit Judges and BROWN, District Judge. ¹

OPINION OF THE COURT

ROTH, Circuit Judge:

A.R., a juvenile, challenges an order of the district court granting the government's motion to proceed against him as an adult. At the adult certification hearing, also referred to as the transfer hearing, the government introduced into evidence several psychiatric and psychological reports. The evaluations of defendant, upon which these reports were based, were conducted in preparation for a similar certification motion, then pending in state court, regarding unrelated state charges. A.R. objected to the use of these reports, contending that their use violated his Fifth and Sixth Amendment rights because the evaluations were performed without prior Miranda warnings and without prior notice to his appointed counsel. A.R. also claims that the district court abused its discretion in granting the motion to proceed against him as an adult. Because we find these contentions to be without merit, we will affirm the order of the district court.

I.

On May 27, 1993, appellant A.R. and a group of companions allegedly spotted a white Pontiac Trans Am in a hotel parking lot and decided to steal it. A.R. approached the car, pointed a gun at the head of the woman in the driver's seat and told her to get out because he was taking the car. The driver and her passenger got out of the car. A.R. and N.A., a female juvenile who accompanied him, got into the Trans Am and drove away. They were apprehended following a high-speed chase. A.R. was charged with conspiracy to commit carjacking, the substantive offense of carjacking, and use of a firearm during the commission of a crime of violence. After he was in custody, state authorities also filed charges against him for a number of armed robberies at ATM machines committed the day before the carjacking.

At the time of his arrest, A.R. was 17 years old. He was taken to a juvenile detention center where he underwent a psychological evaluation on June 11 and a psychiatric evaluation on June 16. Both were conducted at the request of the district attorney, working on the state charges, for use in a hearing in state court to determine whether A.R. should be certified as an adult. The reports of these evaluations were designed only for use in the certification proceeding and were not intended for later use in either a criminal trial or juvenile delinquency proceeding.

The reports concerned A.R.'s intellectual development and psychological maturity. In addition, the reports commented upon his past problems, his response to prior treatment efforts, and the likelihood or not of future treatment within the juvenile justice system being successful. The reports included summaries of the doctors' conversations with A.R. concerning the carjacking incident and his general course of delinquent behavior. They also included observations on his attitude and social interaction. The psychiatrist's report concluded that A.R. had a "conduct disorder" and a "personality disorder, mixed type," and stated in its recommendation that "[h]is behavior thus far indicates need for a highly secure facility." App. at 279. The psychologist focused on A.R.'s intransigence and sarcasm during their interview, as well as his reported difficulties in "thinking." The report concludes:

It appears that [A.R.] was not honest in today's interview. Moreover, he made a number of statements which are alarming. Although he claims not to remember the latest incident, he never expressed any regret over his behavior. Instead, he tends to glorify himself and what he has done. [A.R.] has already demonstrated his failure to benefit from placement and his open defiance of the rules of those placements. At this time, I cannot think of anything more that the juvenile system can offer him.

App. at 281.

According to A.R., he was not given Miranda warnings prior to the evaluations, nor was his counsel given notice that they were to occur. The record before us contains no explicit factual findings concerning the truth of the allegations in the report. ² The government concedes that the usual practice prior to this type of evaluation includes neither the giving of Miranda warnings nor the provision of notice to counsel. We will assume that no warning or notice was given.

After the government filed its information in this case, it sought the district court's permission to proceed against A.R. as an adult. Pursuant to 18 U.S.C. Sec. 5032, the district court held a hearing on the adult certification motion on October 13, 1993, at which both sides presented witnesses. The statute provides that, at such a transfer hearing,

[e]vidence of the following factors shall be considered, and findings with regard to each factor shall be made in the record, in assessing whether 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.

18 U.S.C. Sec. 5032. At the hearing, the district court heard testimony from a number of witnesses familiar with A.R. and his background. Although neither of the doctors, who conducted the evaluations at issue on this appeal, were called to testify, their reports were nevertheless admitted into evidence over A.R.'s objection that they were obtained in violation of his Fifth and Sixth Amendment rights. ³

A.R. did present his own psychiatrist, Dr. Wettstein. Dr. Wettstein testified that he felt that "there is a reasonable possibility that [A.R.] can be held in the juvenile system clinically, psychologically, psychiatrically." App. at 247. He acknowledged, however, that A.R. "doesn't have good enough impulse control at this point to manage things. So he has to live in a residential facility that's fairly secure," App. at 251, and agreed that A.R. is "a dangerous individual." App. at 256.

On October 25, 1993, the district court entered an order granting the government's motion to proceed against A.R. as an adult. A.R. filed a timely notice of appeal on November 2, 1993.

II.

The district court had jurisdiction over this juvenile delinquency proceeding pursuant to 18 U.S.C. Sec. 5032. We have jurisdiction pursuant to the collateral order exception to the final judgment rule. 28 U.S.C. Sec. 1291. See Government of the Virgin Islands in the Interest of A.M., 34 F.3d 153 (3d Cir.1994) (holding that transfer orders fall within the collateral order doctrine). We have plenary review of the district court's disposition of A.R.'s constitutional claims. United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 336, 88 L.Ed.2d 321 (1985). Because the decision to transfer a juvenile for prosecution as an adult is committed to the sound discretion of the trial court, we review that decision only for an abuse of discretion. United States v. Doe, 871 F.2d 1248, 1255 (5th Cir.), cert. denied, 493 U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257 (1989).

III.

The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." The privilege against self-incrimination is rooted in the notion that ours is an accusatorial, rather than inquisitorial system. As such, the individual may not be forced, through his own testimony, to assist the state in securing a conviction against him. Toward that end, the privilege "protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used." In re Gault, 387 U.S. 1, 47-48, 87 S.Ct. 1428, 1454-55, 18 L.Ed.2d 527 (1967) (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678 (1964) (White, J., concurring)). The focus, then, is not on the type of proceeding in which a statement is made "but upon the nature of the statement or admission and the exposure which it invites." Id. 387 U.S. at 49, 87 S.Ct. at 1455.

A.R.'s Fifth Amendment challenge to the use of the reports of the psychiatric and psychological evaluations at the transfer hearing is based on the Supreme Court's decision in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In Estelle, which concerned a capital murder prosecution, the trial court ordered a pre-trial psychiatric evaluation of the defendant in order to determine whether he was competent to stand trial. The defendant was not informed of his rights prior to the evaluation, was adjudged competent to stand trial, and was found guilty of first degree murder. The problem arose at the sentencing phase of the trial when the court allowed the government to present the testimony of the psychiatrist who performed the evaluation, concerning the future dangerousness of the defendant.

In affirming the order vacating the death sentence, the Court provided three bases for its conclusion that the defendant's Fifth Amendment rights were violated. First, because of "the gravity of the decision to be made at the penalty phase," the Court noted that it could "discern no basis to distinguish between the guilt and...