U.S. v. Torres

• Decision Date: 14 June 1974
• Docket Number: No. 756,D,756
• Citation: 500 F.2d 944
• Parties: UNITED STATES of America, Appellee, v. Anibal TORRES, Appellant. ocket 73-2493.
• Court: U.S. Court of Appeals — Second Circuit

Page 944

500 F.2d 944

UNITED STATES of America, Appellee, v. Anibal TORRES, Appellant.

No. 756, Docket 73-2493.

United States Court of Appeals, Second Circuit.

Argued Feb. 1, 1974.

Decided June 14, 1974.

Robert B. Hemley, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., S.D.N.Y., and John D. Gordan III, Asst. U.S. Atty., on the brief), for appellee.

Sheila Ginsberg, The Legal Aid Society, New York City (William Gallagher, Federal Defender Services Unit, New York City, of counsel), for appellant.

Before WATERMAN and MULLIGAN, Circuit Judges, and BRYAN, District judge. ^*

FREDERICK van PELT BRYAN, District Judge:

Anibal Torres appeals from a judgment of the United States District Court for the Southern District of New York finding him to be a juvenile delinquent after proceedings before Judge Gurfein without a jury. The appellant challenges the constitutionality under the Sixth Amendment ¹ of the provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. 5031-5037, which provide that juvenile delinquency proceedings shall be without a jury and that the required consent of a juvenile to be proceeded against as a juvenile delinquent is deemed a waiver of trial by jury.

The sixteen-year-old Torres was tried on a six-count information charging him with acts of juvenile delinquency in violation of various provisions of 18 U.S.C. 474. That section deals with unlawful possession or use without proper authority of plates, photographs, prints or impressions of obligations of the United States.

Torres was found guilty on the third count of the information charging an act of juvenile delinquency is unlawfully, intentionally, knowingly and without proper authority making an unauthorized photographic negative of the face side of a one dollar Federal Reserve Note. He was found not guilty on the first count charging the possession of such negative with intention to use it in counterfeiting. Counts 2, 4, 5 and 6 were dismissed. ²

Torres was arrested on charges of violation of 18 U.S.C. 474 at the New York Training School for Boys at Otisville, New York, to which he had been committed as a juvenile by the Family Court of New York County. The acts with which he was charged had taken place there and involved, among other things, his use of the facilities of the print shop of the school to make allegedly unlawful and unauthorized negatives of a one dollar bill which he had borrowed from one of the supervisors.

Section 5032 of the Federal Juvenile Delinquency Act provides:

5032. Proceeding against juvenile delinquent

A juvenile alleged to have committed one or more acts in violation of a law of the Unites States not punishable by death or life imprisonment, and not surrendered to the authorities of a state, shall be proceeded against as a juvenile delinquent if he consents to such procedure, unless the Attorney General, in his discretion has expressly directed otherwise.

In such event the juvenile shall be proceeded against by information and no criminal prosecution shall be instituted for the alleged violation.

Section 5033 provides:

5033. Jurisdiction; written consent; jury trial precluded

District Courts of the United States shall have jurisdiction of proceedings against juvenile delinquents. For such purposes, the court may be convened at any time and place within the district, in chambers or otherwise. The proceeding shall be without a jury. The consent required to be given by the juvenile shall be given by him in writing before a Judge of the District Court of the United States having cognizance of the alleged violation, who shall fully apprise the juvenile of his rights and of the consequences of such consent. Such consent shall be deemed a waiver of a trial by jury.

Torres, as a juvenile alleged to have committed acts in violation of Federal law, was brought before Judge Stewart in the Southern District of New York, represented by assigned counsel. With the advice of counsel, he executed a consent in writing to be proceeded against as a juvenile delinquent pursuant to Sections 5032 and 5033. The information charging Torres with acts of juvenile delinquency in violation of Section 474 was then filed, and the case was assigned to Judge Gurfein.

When the information came on before Judge Gurfein, Torres' consent in writing to being proceeded against as a juvenile delinquent was presented to the Court and Judge Gurfein fully advised him of his rights and of the consequences of his consent, including his waiver of the trial by jury to which he would be entitled if tried as an adult.

Nevertheless, Torres' counsel contended that Torres was entitled to a trial by jury. He urged, first, that a juvenile had a right to a jury trial in a juvenile delinquency proceeding under the Sixth Amendment and that the provision of 18 U.S.C. 5033 that such a proceeding 'shall be tried without a jury' was therefore unconstitutional, relying on Nieves v. United States, 280 F.Supp. 994 (S.D.N.Y.1968) (three-judge court). Secondly, he urged that the provision of Section 5033 that a juvenile's consent to juvenile delinquency proceedings 'shall be deemed a waiver of a trial by jury' was likewise unconstitutional because it unduly penalized the exercise of the juvenile's Sixth Amendment right to a jury trial and thus induced him to relinquish that right, relying on United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).

Judge Gurfein rejected these contentions and held that these sections were constitutional and that Torres was not entitled to a jury, relying primarily on McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) and United States ex rel. Murray v. Owens, 465 F.2d 289 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1973). The proceedings then went forward before the Court without a jury and resulted in the judgment appealed from. On this appeal Torres makes substantially the same contentions he made below.

I.

Appellant maintains that McKeiver v. Pennsylvania, supra, did not determine that a juvenile had no constitutional right to a trial by jury in a federal juvenile delinquency proceeding and that the four cases in three circuits ³ which, relying on McKeiver, held that a juvenile had no such right, were wrongly decided. Appellant seeks to have this court hold that the provision of the Federal Act requiring that juvenile proceedings be without a jury is unconstitutional as violative of the Sixth Amendment. ⁴ This we decline to do.

McKeiver held that the juvenile appellants, who had been found to be delinquent in Juvenile Court proceedings in Pennsylvania and North Carolina, had no constitutional right to a trial by jury in the adjudicative stage of such proceedings.

Justice Blackmun, writing for the plurality, reviewed the history and background of the Juvenile Court system in the United States and discussed at length the way in which the system operated and the criticisms directed at it. He recognized that 'the fond and idealistic hopes of the juvenile court proponents and early reformers of three generations ago have not been realized,' (403 U.S. at 543-544), and that the system as now in operation has many defects and is subject to abuses. He concluded, however, that the Juvenile Court system providing intimate, informal, protective and paternalistic procedure for the juvenile accused of wrongdoing, with rehabilitation rather than punishment as its goal, still had promise. To impose on that system trial by jury as a matter of right would be a regressive and undesirable step. It would undermine the Juvenile Court's ability to carry out its praiseworthy functions and goals and 'would tend once again to place the juvenile squarely in the routine of the criminal process' (403 U.S. at 547).

He concluded that a juvenile proceeding is not a 'criminal prosecution' within the meaning and reach of the Sixth Amendment and that therefore the right to trial by jury in 'all criminal prosecutions' guaranteed by the Sixth Amendment as extended to the states by the Due Process Clause of the Fourteenth Amendment ⁵ did not apply in such proceedings. ⁶ He concluded further that a jury trial was not constitutionally required under the due process standards of 'fundamental fairness' applicable in juvenile proceedings, as developed in such cases as In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). ⁷ The states were, therefore, free to determine for themselves whether juvenile delinquency proceedings should be tried with or without a jury, and Pennsylvania and North Carolina had not deprived appellants of a constitutional right by denying them a trial by jury. ⁸

The argument of the appellant in the case at bar, that proceedings under the Federal Juvenile Delinquency Act are so materially different from those under state acts considered in McKeiver as to be criminal prosecutions subject to the Sixth Amendment jury trial guarantee, is not persuasive.

The Federal Act, passed as long ago as 1948, follows the pattern of the system for the treatment and handling of the juvenile delinquency problem generally in force in the United States.

A juvenile (a person under 18) accused of violation of federal law, if he consents and the Attorney General does not object, must be proceeded against as a juvenile delinquent. He is proceeded against by information and 'no criminal prosecution shall be instituted for the alleged violation' 18 U.S.C. 5032. The proceedings are before a United States District Judge without a jury and may be conducted 'at any time and place within the district, in chambers or otherwise' 18 U.S.C. 5033.

On a finding of delinquency, the Judge may place the juvenile on probation for a period not to exceed his minority or commit him to the custody of the Attorney General for a like period, which, in any event, must not exceed the term which might have been imposed in a...