United States v. Costanzo

• Decision Date: 19 March 1968
• Docket Number: No. 11432.,11432.
• Citation: 395 F.2d 441
• Parties: UNITED STATES of America, Appellee, v. August COSTANZO, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

395 F.2d 441 (1968)

UNITED STATES of America, Appellee, v. August COSTANZO, Appellant.

No. 11432.

United States Court of Appeals Fourth Circuit.

Argued January 10, 1968.

Decided March 19, 1968.

James M. La Rossa, New York City, for appellant.

William S. McLean, Asst. U. S. Atty. (Robert H. Cowen, U. S. Atty., on brief), for appellee.

Before SOBELOFF and CRAVEN, Circuit Judges, and KELLAM, District Judge.

SOBELOFF, Circuit Judge:

Raising constitutional questions relating to the rights of confrontation and cross-examination and contesting the sufficiency of the evidence, the defendant Costanzo appeals his adjudication as a juvenile delinquent under 18 U.S.C. § 5032.

Costanzo, age 17, and one Meehan, age 21, both residents of Brooklyn, New York, were arrested in Florida for stealing a car in New York and transporting it to North Carolina. They were tried separately on the same day before District Judge Larkins. With Costanzo and his court-appointed lawyer in the courtroom, Meehan was tried as an adult for violating the Dyer Act, 18 U.S.C. § 2312. The Government produced eight witnesses, who were subject to cross-examination by Meehan's attorney. After the court denied a directed verdict of acquittal, the defense put on the stand the defendant Meehan, the appellant Costanzo, and Costanzo's father. The defense testimony was that the boys hitchhiked together from New York to Enfield, North Carolina, where they boarded a bus headed for Jacksonville, Florida. Both Meehan and Costanzo professed an inability to drive, and this was corroborated as to Costanzo by his father's testimony.

After Meehan's case was concluded, the judge took it under advisement and called Costanzo's case for trial. Costanzo's attorney, Hall, requested a short recess in light of some of the testimony in Meehan's case. The judge granted an hour and a half recess, which statisfied Hall. When court reconvened, the District Judge again informed Costanzo of the charge against him, explained the possible penalties, and presented him with the option of being tried as an adult offender or as a juvenile delinquent. After affirmatively indicating that he understood the nature of the charges and the maximum possible sentence, and after expressing satisfaction with the services of his attorney and the time allotted for trial preparation, Costanzo chose to be tried as a juvenile and pleaded not guilty.

The first item of evidence in the juvenile delinquency proceeding consisted of a stipulation entered into by counsel for both prosecution and defense that the testimony of two witnesses from New York would be that a certain vehicle owned by a rental agency had been leased to a Brooklyn resident who gave no one permission to drive it and who discovered that it was missing on October 25, 1966.

When informed by government counsel that the evidence against the juvenile would be identical to that previously offered against Meehan, the District Judge declared: "I do not think it necessary to repetitiously hear each witness. I would suggest that the Government tender to attorney for the juvenile each of those witnesses with the exception of the excused New Yorkers that you have previously identified * * * and it may be that Mr. Hall would have some questions to ask each of them on cross-examination. I do not want to deprive the juvenile of his right of confrontation of each witness."

Each remaining witness was then called and made to face the juvenile and his attorney. Although given the opportunity to cross-examine them, Hall declined but specifically adopted the earlier cross-examination of Meehan's court-appointed attorney. After each witness had been tendered and the opportunity to cross-examine had been declined as to each, the court asked the defendant, who is reputed to have an I.Q. of 68, whether he had any questions of the witnesses. He had none. Nor did he or his lawyer seek to introduce any evidence on Costanzo's behalf.

Upon the evidence in the two proceedings, the court sitting without a jury, as mandated in 18 U.S.C. § 5033 when a youth consents to be tried as a juvenile,¹ found the defendant to be a juvenile delinquent by violating the Dyer Act and committed him to a reformatory for the period of his minority and wisely recommended immediate psychiatric and physiological examinations.

On this appeal, Costanzo contends that the District Court's unorthodox procedure violated his constitutional rights of confrontation and cross-examination and his privilege against self-incrimination. Although agreeing with the appellant that these safeguards attached in a criminal prosecution of this sort, see In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), we find no merit in any of these constitutional arguments. There was no element of unfairness or any violation of constitutional standards in the procedure followed at trial. Costanzo, with the assistance of counsel, was afforded full opportunity to cross-examine the witnesses against him. Cf. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). To the extent that the testimony in chief and on cross-examination adduced in Costanzo's and his lawyer's presence in Meehan's trial was not repeated, the right was clearly waived by acquiescence and participation without objection in the course suggested by the court. Nor was Costanzo's privilege against self-incrimination violated since he was not compelled to take the stand in the first trial and since his testimony was voluntarily offered with his lawyer's acquiescence, doubtless for the purpose of helping Costanzo's cause, as well as Meehan's.

Throughout the proceeding, the District Court acted meticulously to preserve for the defendant every right due him and made careful inquiry to insure that the time allowed for preparation was ample and that the defendant had been afforded every opportunity desired for consultation with counsel.

There remains, however, the question of the sufficiency of the evidence to support an adjudication of delinquency based on a violation of the Dyer Act. The principal stress of the Government's answer to the insufficiency argument is the contention that a lesser quantum of proof is required in a juvenile proceeding than in an adult criminal hearing. To support its proposition that a mere preponderance is enough to sustain an adjudication of delinquency, appellee cites United States v. Borders, 154 F.Supp. 214 (N.D. Ala.1957), aff'd, 256 F.2d 458 (5th Cir. 1958). In that case, the District Court, in sentencing a 12-year-old boy to incarceration for nine years for allegedly pulling a railroad switch, voiced a sentiment not uncommon before Gault, but unacceptable after Gault:

"A proceeding under the Juvenile Delinquency Act results in an adjudication of a status rather than the conviction of a crime with the stigma that attaches to such conviction. A trial under the Act is not a criminal trial and a strict application of criminal legal rules, procedural or substantive, will frustrate the purposes of the Act. Constitutional and statutory safeguards do not apply. * * * To sustain an adjudication of delinquency, most authorities require the same amount and kind of proof as would be required in an ordinary civil action."

These ideas are at war with the philosophy painstakingly expounded in the Supreme Court's recent decision, In re Gault, supra, and can no longer guide us. Gault unequivocally rejects the reasoning typified in Borders and ineluctably requires a different conclusion. The court there held that the constitutional requirements regarding notice of charges, right to counsel, rights to confrontation and cross-examination and privilege against self-incrimination are "essential for the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21," In re Gault, supra, 387 U.S. at 36, 87 S.Ct. at 1448. The holding was premised upon the assumption that "a proceeding where the issue is whether the child will be found to be a `delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution." Ibid.

Our precise question then is whether for purposes of the required quantum of evidence, no less than for notice, counsel, cross-examination, and the privilege against self-incrimination, a federal juvenile proceeding which may lead to institutional commitment must be regarded as "criminal." We hold that it must be so regarded. No verbal manipulation or use of a benign label can convert a four-year commitment following conviction into a civil proceeding. See Gault, supra at 50, 87 S.Ct. 1428. The Government's burden in a juvenile case, therefore, is to prove all elements of the offense "beyond a reasonable doubt," just as in a prosecution against an adult.² We see a compelling similarity between the enumerated safeguards due a juvenile in as full measure as an adult and the requirement of proof beyond a reasonable doubt. In practical importance to a person charged with crime the insistence upon a high degree of proof ranks as high as any other protection; and if young and old are entitled to equal...