U.S. v. Smith

• Decision Date: 12 July 1988
• Docket Number: No. 87-5683,87-5683
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlton J. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 706

851 F.2d 706

UNITED STATES of America, Plaintiff-Appellee, v. Carlton J. SMITH, Defendant-Appellant.

No. 87-5683.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 2, 1988.

Decided July 12, 1988.

Richard Luby Cannon, III, Greenville, N.C., for defendant-appellant.

John Stuart Bruce, Asst. U.S. Atty. (J. Douglas McCullough, Acting U.S. Atty., Matthew F. Bogdanos, Sp. Asst. U.S. Atty., Raleigh, N.C., on brief), for plaintiff-appellee.

Before WINTER, Chief Judge, CHAPMAN, Circuit Judge, and SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.

HARRISON L. WINTER, Chief Judge:

In a prior appeal, United States v. Juvenile Male, 819 F.2d 468 (4 Cir.1987), we held that defendant, who allegedly confessed to having murdered three of his relatives in 1981 when he was fifteen years old, but who was not apprehended and charged with the crime by juvenile information until 1986 when he was twenty, could not be prosecuted as an adult under the transfer provision of 18 U.S.C. Sec. 5032 (Supp. II 1984), which had been added after the crimes were committed. In our view, the government could only proceed against the defendant as a juvenile delinquent under the provisions of 18 U.S.C. Sec. 5037 (1982), because to apply the subsequent amendment would violate the Constitutional prohibition against ex post facto legislation.

Before our decision was rendered, defendant became twenty-one; and after our decision was rendered, the government sought and was granted leave to dismiss the juvenile information. ¹ The information was dismissed on July 6, 1987, and on July 7, 1987, a grand jury indicted defendant, charging him with the three counts of first- degree murder allegedly committed by him when he was fifteen, and one count of alleged escape. ²

In the district court, defendant sought to dismiss the murder indictment on several grounds, viz. that the dismissal of the juvenile information constituted gross prosecutorial misconduct, an abuse of discretion and prosecutorial harassment, that the dismissal of the juvenile information and subsequent indictment constituted vindictive prosecution, and that the Ex Post Facto clause and the Due Process clause barred defendant's indictment as an adult. The district court considered and rejected these contentions in a memorandum opinion, and defendant appeals. He essentially raises these same points, and the government, in addition to responding to his contentions, asserts that the denial of the motion to dismiss the indictment (as to the three counts charging murder) is not a final order and hence is not appealable. Thus we must decide if this appeal is properly before us, and if so, the correctness of the district court's denial of the motion to dismiss.

We hold that we have jurisdiction of this appeal, and we reverse.

I.

We think that the order denying defendant's motion to dismiss the indictment is appealable under the exception to the final decision requirement, 28 U.S.C. Sec. 1291, formulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Cohen and subsequent decisions interpreting Cohen permit as an exception to the requirement that appeals may only be taken from final decisions, orders which "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). Certainly the district court's order in this case conclusively establishes at the district court level that defendant may be tried as an adult and not as a juvenile. That issue is quite separate and distinct from whether he is or is not guilty of the crimes charged. While, if found guilty as an adult, defendant could still contest the legality of trying him as an adult, we think that much of the sequellae of his right to be tried as a juvenile, if that claim is meritorious, would be irrevocably lost, so that it may fairly be said that his claim is "effectively unreviewable on appeal from a final judgment." An accused proceeded against as a juvenile delinquent has statutory rights not given to an accused who is tried as an adult. A juvenile is entitled to the sealing of court records, limitation of inquiries into records, protection from photographing and withholding of his name and picture from the news media. See 18 U.S.C. Sec. 5038; United States v. C.G., 736 F.2d 1474 (11 Cir.1984).

We view these statutory protections given to juveniles as analogous to the guarantee against double jeopardy. The denial of a motion to dismiss an indictment on the ground of double jeopardy was held appealable in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Similarly, the denial of a pretrial assertion of immunity under the Speech and Debate Clause of the Constitution was held to be within the collateral order exception in Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979), and appellate review in juvenile cases from orders to transfer the juvenile for trial as an adult have been permitted in United States v. Juvenile Male, supra ; United States v. C.G., supra ; and United States v. A.W.J., 804 F.2d 492 (8 Cir.1986). Based upon these authorities, we think that the denial of the motion to dismiss the indictment in the present case is appealable, and we so hold.

II.

In the parties' and the district court's view, this case presents close issues of alleged prosecutorial vindictiveness and harassment and as involving the Due Process Clause and Ex Post Facto prohibition. We see it, however, as a simple issue of statutory application.

There is no question that Smith was proceeded against as a juvenile delinquent by the filing of a juvenile information against him while he was under the age of twenty-one. Both the statute in effect then and in effect now provided that if a juvenile is proceeded against as an alleged juvenile delinquent in a district court, "the Attorney General shall proceed by information, and no criminal prosecution shall be instituted for the alleged acts of juvenile delinquency except as provided below ", 18 U.S.C. Sec. 5032. ³ None of the exceptions is applicable here. They include a request by the juvenile to be tried as an adult, the transfer of juveniles fifteen years or older accused of the commission of a felony that is a crime of violence or other designated drug offenses for prosecution as an adult, ⁴ and the transfer of a juvenile over sixteen accused of certain other felonies for prosecution as an adult.

Reduced to its simplest terms, the statute says that if one in Smith's circumstances is proceeded against as a juvenile delinquent by information, no other criminal prosecution shall be instituted against him except with certain exceptions, none of which applies here. Because the statute is plain and unambiguous, we conclude that it should be applied literally. ⁵ We conclude that, although jeopardy had not yet attached at the time the district court dismissed the information against defendant, once the government invokes 18 U.S.C. Sec. 5032, it may not in the future proceed against the defendant except in accordance with the terms of that provision. It is of little consequence that the government did not manufacture in bad faith the delays in prosecution which resulted in the defendant still awaiting trial as of his twenty-first birthday. The Act itself contemplates that jurisdiction over someone in the defendant's circumstances is not automatically lost once he attains the age of 21. See 18 U.S.C. Sec. 5037(b); United States v. Doe, 631 F.2d 110, 112-13 (9 Cir.), cert. denied, 449 U.S. 867, 101 S.Ct. 202, 66 L.Ed.2d 86 (1980). Therefore the indictment insofar as it charges Smith with murder is invalid as being in violation of the statute. It follows that the indictment should be dismissed. ⁶

The order of the district court is accordingly reversed and the case remanded with directions to dismiss the counts of the indictment charging murder.

REVERSED AND REMANDED.

CHAPMAN, Circuit Judge, dissenting;

I cannot agree with the majority on its determination of either of the questions presented, so I must dissent.

I

First, I do not believe the order of the district court denying the defendant's motion to dismiss the indictment is appealable under any exception to the final decision requirement of 28 U.S.C. Sec. 1291 (1982), as set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). I agree that the first two Cohen requirements have been met. The order of the district court has conclusively determined a disputed question, and the question is completely separate from the merits of the action, but the decision is not effectively unreviewable on appeal from a final judgment. Smith's claim that he should not be tried as an adult would be preserved and could be presented to this court after his case has been tried and a final judgment entered.

The majority equates the statutory protections given to juveniles with the constitutional guarantee against double jeopardy. I cannot fathom this reasoning, nor can I understand the conclusion of the majority that the third Cohen element is satisfied in this case because "much of the [sequelae] of his right to be tried as a juvenile, if that claim is meritorious, would be irrevocably lost, so that it may fairly be said that his claim is 'effectively unreviewable on appeal from a final judgment.' " See Majority Opinion, supra p. 708. Smith is no longer a juvenile. He is now 22 years of age. He is no longer the anonymous "Juvenile Male" we referred to in our prior opinion. He is now charged in his real name because he is an adult. He is no longer entitled to the other "sequelae" available to juveniles under the...