United States v. D.D.B.

• Decision Date: 11 September 2018
• Docket Number: No. 17-2563,17-2563
• Citation: 903 F.3d 684
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. D.D.B., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

903 F.3d 684

UNITED STATES of America, Plaintiff-Appellee,

v.D.D.B., Defendant-Appellant.

No. 17-2563

United States Court of Appeals, Seventh Circuit.

Argued February 16, 2018

Decided September 11, 2018

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, ––– U.S. ––––, 137 S.Ct. 456, 196 L.Ed.2d 336 (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, ––– U.S. ––––, 138 S.Ct. 347, 199 L.Ed.2d 232 (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, 87 S.Ct. 1428, 18 L.Ed.2d 527 (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 proceeding designed to explore the defendant's guilt or innocence," and therefore the clear-and-convincing-evidence standard is not appropriate.); United States v. T.F.F. , 55 F.3d 1118, 1122 (6th Cir. 1995) ("The clear and convincing standard is inconsistent with the civil nature of the transfer hearing."); United States v. A.R. , 38 F.3d 699, 703 (3d Cir. 1994) (noting that a transfer proceeding is civil in nature because it results only in a decision about the status of the individual and not guilt or innocence); United States v. Parker , 956 F.2d 169, 171 (8th Cir. 1992) ("A transfer hearing is not a criminal proceeding which results in an adjudication of guilt or innocence, but a civil proceeding which results in an adjudication of status."). The title and text of the statute itself suggest this result. Section 5032 allows for or mandates a "transfer for criminal prosecution" from "delinquency proceedings in district court." 18 U.S.C. § 5032 (emphasis ours). The statute further instructs, "no criminal prosecution shall be instituted for the alleged act of juvenile delinquency except as provided below." Id.

The government correctly does not contest that juvenile proceedings are civil in nature; it argues instead that the civil proceeding ended the moment D.D.B. was transferred for criminal prosecution, or at least when he was indicted and the case docketed under a criminal case number. (It is unclear which of these is the exact point of demarcation to which the government refers—the indictment or the moment when the clerk docketed the case under a criminal cause number). The government concludes, therefore, that D.D.B.’s time to appeal depends on his current status as a criminal defendant rather than the nature of the proceeding from which he is appealing. This cannot be so. The government claims that because it was successful in its transfer proceeding, D.D.B. had but fourteen days to appeal. Under the defendant’s theory, if D.D.B. had prevailed in the § 5032 proceeding and the court had deemed him a delinquent rather than an adult criminal, however, the case would have remained a civil case and the time for appeal would have been sixty days. It simply cannot be that the time for appeal from the same proceeding is sixty days if the juvenile wins and fourteen days if he loses. Time limitations for filing of an appeal cannot depend on which party prevails.

Moreover, what would have happened if the government had waited 15 days to file the indictment, or 60 days or 120 days (perhaps it was trying to get D.D.B. or his co-defendant to cooperate or was gathering better evidence)? If the government had waited fifteen days after the district court’s order to file the indictment, then the matter would have remained a civil matter until day fifteen, and by the time it became a criminal matter it would be too late for D.D.B. to file an appeal from the transfer decision within the fourteen-day limit. The government cannot control when to turn the matter from civil to criminal. If it could, the government could manipulate the indictment and always file at least fifteen days after the decision on the motion to transfer in order to lull the defendant into thinking he had more time, and then shut the defendant out of the possibility of an appeal. And if the event that changes the deadline for filing from sixty days to fifteen days is the date upon which the clerk of the court merges the juvenile docket into the criminal docket, then this would render the clerk the arbiter of the court’s jurisdiction—a strange result indeed.

But we need not wrestle with these hypothetical possibilities. A transfer proceeding is a civil proceeding for most intents and purposes, and therefore the appeal from it is a civil appeal and may be...