United States v. D.D.B., 091118 FED7, 17-2563

Docket Nº:17-2563
Opinion Judge:ROVNER, CIRCUIT JUDGE
Party Name:United States of America, Plaintiff-Appellee, v. D.D.B., Defendant-Appellant.
Judge Panel:Before WOOD, Chief Judge, and Kanne and ROVNER, Circuit Judges.
Case Date:September 11, 2018
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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United States of America, Plaintiff-Appellee,

v.

D.D.B., Defendant-Appellant.

No. 17-2563

United States Court of Appeals, Seventh Circuit

September 11, 2018

Argued February 16, 2018

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:17-cr-00131-WTL-TAB-l - Jane Magnus-Stinson, Chief Judge.

Before WOOD, Chief Judge, and Kanne and ROVNER, Circuit Judges.

ROVNER, CIRCUIT JUDGE

The government wishes to try D.D.B. as an adult for robbing a pharmacy. In order to do so, however, it must prove that he had a prior conviction for a violent offense. We must decide, therefore, whether attempted robbery under Indiana law is such an offense-a question that appears cut and dried on its face, but actually poses some challenges.

I.

D.D.B., along with an adult accomplice, robbed a pharmacy and was quickly apprehended by the police. Because he was under eighteen years of age at the time, the government charged him with committing acts of juvenile delinquency that would be crimes if committed by an adult-robbery under 18 U.S.C. §1951(a) - and carrying, using, and brandishing a firearm during a robbery under 18 U.S.C. § 924(c)(1)(A)(ii).

Soon after, the government moved to transfer D.D.B. to adult proceedings. The statute governing such a transfer, 18 U.S.C. § 5032, mandates a transfer to adult proceedings if all three of the following conditions are met: (1) the juvenile committed the act underlying the charged offense after his sixteenth birthday; (2) the charged offense is a felony that "has as an element thereof the use, attempted use, or threatened use of physical force against the person of another"; and (3) the juvenile has previously been found guilty of a crime that "has as an element thereof the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 5032.1; see also United States v. M.C.E., 232 F.3d 1252, 1255 (9th Cir. 2000); Impounded, 117 F.3d 730, 731 (3d Cir. 1997).

The government originally alleged that D.D.B. had two prior juvenile delinquency adjudications that would serve as predicates for the mandatory transfer under § 5032. The first was attempted robbery in Indiana, a Class B felony. The second was burglary, also a Class B felony in Indiana. In a supplemental motion the government added a third predicate offense, conspiracy to commit robbery. The district court addressed only the attempted robbery offense in its opinion and concluded that this offense satisfied the grounds for mandatory transfer under § 5032-that is, that it was a crime of violence. R. 144 at 9. Because this finding on the attempted robbery offense was sufficient grounds for the mandatory transfer under 18 U.S.C. § 5032, the district court did not need to reach the issue of whether D.D.B.'s burglary or conspiracy to commit robbery offenses also satisfied § 5032. D.D.B. contests in this appeal, therefore, only the prior Indiana attempted robbery conviction, claiming that it was not a crime of violence. The government maintains that it was. We must therefore decide if Indiana attempted robbery is a crime of violence, or more technically, "has as an element thereof the use, attempted use, or threatened use of physical force against the person of another."

The district court held that it is indeed a crime of violence. Generally, this court reviews a district court's transfer decision under § 5032 for an abuse of discretion. United States v. Woods, 827 F.3d 712, 717 (7th Cir.), cert, denied, 137 S.Ct. 456 (2016). However, we review de novo whether a prior offense constitutes a crime of violence. See, e.g., United States v. Campbell, 865 F.3d 853, 855 (7th Cir.), cert, denied, 138 S.Ct. 347 (2017) (reviewing de novo the district court's decision as to whether bank robbery qualifies as a crime of violence).

A. Was the appeal timely filed?

Before deciding whether D.D.B.'s predicate crime of attempted robbery qualifies as a crime of violence, we must address one jurisdictional issue. The government claims that D.D.B. failed to file his appeal of the transfer order within the fourteen days allowed to file a notice of appeal in a criminal matter. Fed. R. App. P. 4(b). D.D.B. claims that he is appealing from a juvenile adjudication which is a civil matter and thus subject to a sixty-day filing time limit. Id. at 4(a). The difference matters because D.D.B. filed his appeal twenty-seven days after the entry of the transfer order.

Federal agents took D.D.B. into custody on May 15, 2017, and on that same day the government filed a motion for mandatory transfer for criminal prosecution. The judge granted the motion for a transfer to adult proceedings on July 5, 2017, and six days later, on July 11, 2017, the government indicted D.D.B., charging him as an adult. At some point, the exact time of which is unclear, the docket for D.D.B.'s juvenile adjudication merged with the docket for the criminal case. D.D.B's counsel did not learn of the merger until August 1, 2017, when the court notified counsel that the notice of appeal that he had filed on July 28, 2017, under the juvenile case number, had to be refiled under the new criminal case number because of the merger.

We find that the appeal from a § 5032 transfer proceeding determination is a transfer from a civil proceeding to a criminal proceeding and thus the timeline for civil proceedings applies. Although juvenile delinquency proceedings are quasi-criminal in some aspects, they are still largely civil in nature. See, e.g., Application of Gault, 387 U.S. 1, 49 (1967) (finding that a juvenile has right to notice of charges, to counsel, to confrontation and cross-examination of witnesses, and to privilege against self-incrimination, despite the "civil" label of the proceedings). All courts to have considered the issue have declared that a transfer hearing under § 5032 is a civil proceeding, as the outcome will determine the juvenile's status rather than her guilt or innocence. See e.g. United States v. Juvenile Male, 554 F.3d 456, 467 (4th Cir. 2009) ("a transfer proceeding is civil in nature. As such, its purpose is not to incriminate, but to select the proper forum for trial."); United States v. Doe, 49 F.3d 859, 868 (2d Cir. 1995) ("A transfer hearing under the [the juvenile delinquency act] is not a criminal...

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