United States v. A.S.R.

Decision Date27 January 2015
Docket NumberCase No. 14–CR–234–JPS.
Citation81 F.Supp.3d 709
PartiesUNITED STATES of America, Plaintiff, v. A.S.R., a juvenile male, Defendant.
CourtU.S. District Court — Eastern District of Wisconsin

Benjamin W. Proctor, U.S. Department of Justice, Milwaukee, WI, for Plaintiff.

Anderson M. Gansner, Federal Defender Services of Wisconsin, Inc., Milwaukee, WI, for Defendant.

ORDER

J.P. STADTMUELLER, District Judge.

1. OVERVIEW

On December 5, 2014, the government filed a Juvenile Information charging the defendant, A.S.R., a juvenile male, with violations of 18 U.S.C. §§ 2113 and 2, and 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. (Docket # 1). The two counts against the defendant arise from the attempted robbery of the Great Midwest Bank in West Allis, Wisconsin. Id.

During the robbery, two masked individuals entered the bank, one with a firearm, and attempted to command a teller to give them money. (See Docket # 3 at 2). The teller ducked down below the counter and refused to comply, despite the armed individual tapping on the security glass with the gun and yelling: “Get Up! Give me your money!” Id. at 3. After the teller continued ducking below the counter, the two individuals eventually left. Id. They were later caught—one of the individuals being the defendant—and the gun was also recovered. Id. at 4.

Pursuant to 18 U.S.C. § 5032, the government—in addition to filing the juvenile information—filed a certification to proceed under the Federal Juvenile Delinquency Act (“JDA”), 18 U.S.C. § 5031 et seq. (Docket # 5), and a motion for mandatory transfer of proceedings against the juvenile to adult criminal prosecution. (Docket # 6). In the motion for mandatory transfer, the government seeks to use a prior juvenile delinquency adjudication against the defendant as a “prior conviction” under § 5032 (fourth unnumbered paragraph), triggering mandatory transfer of the juvenile (subject to limitations that will be discussed in more detail below). This prior juvenile delinquency adjudication was for Armed Robbery with Threat of Force–Party to a Crime, pursuant to Wisconsin Statutes §§ 943.32(2) and 939.05.

The defendant was originally charged as an adult in state court with the attempted robbery of the Great Midwest Bank, but those charges were dismissed after the filing of the juvenile information and a criminal complaint in this matter (in order to secure the defendant's arrest and detainer). (See Docket # 14 at 4–5). Thereafter, the state charges were dismissed at a hearing on December 9, 2014. Id.; (Docket # 12 at 20) (noting that “at a hearing scheduled for 8:30 a.m. [on December 9, 2014,] ... the state case against A.S.R. was dismissed”).

Despite the state charges being dismissed on December 9, 2014, the FBI did not take physical custody of the defendant until December 10, 2014. (Docket # 14–1 at 3). An affidavit from the FBI special agent in charge of the investigation notes that the delay was due to him “not receiv[ing] notification from anyone at the Milwaukee Criminal Justice Facility or any other state facility on December 9, 2014, that A.S.R. was being released from state custody.” Id. at 2. Instead, the FBI contacted the jail on the morning of December 10, 2014 (at 8:00 a.m.), to inquire on the status of the defendant and was notified that he would be released in a few hours. Id. at 3.

Prior to taking custody of A.S.R., the FBI “contacted A.S.R.'s mother to inform her that [he] would be coming into federal custody based on pending charges for attempted bank robbery ... [and] would be transferred to the federal courthouse in Milwaukee to appear before a judge.” Id. The conversation between the FBI and A.S.R.'s mother occurred around 9:00 a.m., some 30 minutes before he was taken into custody by the FBI.

At 9:30 a.m. on December 10, 2014, the FBI took physical custody of A.S.R. and advised him of his rights. Id. The FBI agent's affidavit states that [a]t no time while A.S.R. was in [the FBI agent's] custody on December 10, 2014, did [he] or any other law enforcement officer in [his] presence attempt to question A.S.R. about criminal activities.” Id.

The defendant was brought before Magistrate Judge Callahan at 2:00 p.m. on that same day (December 10, 2014) for his initial appearance (see Docket # 9), and was ordered detained. (Docket # 8). On December 11, 2014, the defendant came before the Court for a hearing on the motion for mandatory transfer (see Docket # 11), and the defendant informed the Court of his intent to oppose the motion for mandatory transfer. Id. The defendant filed a brief in opposition to the government's mandatory transfer motion on December 19, 2014. (Docket # 12). The government filed a reply on December 31, 2014. (Docket # 13).

On January 8, 2015, the defendant requested oral argument on the government's motion for mandatory transfer; the government did not oppose this request. (Docket # 15). The Court granted the defendant's request and held oral argument on January 20, 2015. (See Docket # 16, # 17).

Now having all the pertinent facts before the Court and full briefing by the parties, the Court turns to the government's motion for mandatory transfer and will grant it for the reasons that follow.

2. DISCUSSION

The defense has raised objections to the government's motion for mandatory transfer on two grounds: (1) a failure to meet the requirements of § 5032, thus precluding mandatory transfer; and (2) violations by the government of § 5033 that require dismissal of the entire case. The Court will address each objection in turn, below.

2.1 18 U.S.C. § 5032

Section 5032 envisions two avenues by which a transfer [of a juvenile to adult status] may occur. First there are so-called permissive transfer provisions.... The second avenue by which a juvenile may be transferred to adult status is by way of the mandatory transfer provision.” Impounded, 117 F.3d 730, 732 (3d Cir.1997). The latter is at issue, here.

The mandatory transfer provision provides that:

a juvenile who is alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a felony offense that has as an element thereof the use, attempted use, or threatened use of physical force against the person of another, or that, by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense, or would be an offense described in section 32, 81, 844(d), (e), (f), (h), (i) or 2275 of this title, subsection (b)(1)(A), (B), or (C), (d), or (e) of section 401 of the Controlled Substances Act, or section 1002(a), 1003, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 953, 959, 960(b)(1), (2), (3) ), and who has previously been found guilty of an act which if committed by an adult would have been one of the offenses set forth in this paragraph or an offense in violation of a State felony statute that would have been such an offense if a circumstance giving rise to Federal jurisdiction had existed, shall be transferred to the appropriate district court of the United States for criminal prosecution.

18 U.S.C. § 5032.

Distilled to its essentials, mandatory transfer requires: (1) a juvenile alleged to have committed an act after his sixteenth birthday; (2) the juvenile's act is “a felony that has an element the use of physical force or by its nature involves the risk of physical force, or is an offense specifically enumerated in the paragraph,” Impounded, 117 F.3d at 732 ; and, (3) the juvenile was previously found guilty “of an act which if committed by an adult would have been one of the offenses set forth in [the fourth unnumbered paragraph].” § 5032 ; see also Impounded, 117 F.3d at 732.

The defendant does not contest requirements (1) and (2). (See Docket # 12 at 5) (collapsing requirements one and two and stating that, [t]he defense does not dispute that the charges brought by the government meet the first mandatory-transfer requirement”). Nor could he. As noted above, the defendant is charged with attempting to rob the Great Midwest Bank by use of force, violence, and intimidation, see 18 U.S.C. § 2113(a) ; and, he was 17 years, 7 months, and 24 days old at the time of the alleged crime. (See Docket # 14 at 3).

The parties do contest requirement (3) relating to the predicate offense. Namely, the defendant argues that his prior conviction for armed robbery as party to a crime is not one of the “enumerated offenses” that are “set forth” in the fourth unnumbered paragraph of § 5032. (See Docket # 12 at 4–5). The defendant argues that the offenses set forth in that paragraph include only those specifically enumerated. (Docket # 12 at 17). Or, to state the defendant's argument differently, that a juvenile cannot qualify for mandatory transfer if his prior conviction is for an offense not specifically listed in § 5032. To support this reading of the statute, the defendant cites United States v. Juvenile Male No. 1,

47 F.3d 68, 69 (2d Cir.1995), which states that a prior conviction satisfies the mandatory transfer provision if it is “one of the enumerated offenses supporting discretionary transfer.”

The defendant also argues that even if his prior conviction could technically constitute one of the offenses, the party to a crime modifier “is broader and more expansive” than § 2 —the federal aider and abettor statute—because the Wisconsin statute permits conspirator liability; thus, “under the categorical approach applied in [these] cases,” see, e.g., United States v. M.C.E., 232 F.3d 1252, 1256–57 (9th Cir.2000) (noting that § 5032 is virtually identical to 18 U.S.C. § 16 and “both [statutes] direct us to adopt the categorical approach”) (citing Taylor v. United States, 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ), “conduct covered by the state statute is not covered by the federal statute,” making the defendant's prior conviction fall outside the scope of that intended by Congress in enacting the JDA. (Docket # 12 at...

To continue reading

Request your trial
1 cases
  • United States v. D.J.H.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • April 1, 2016
    ...criminal prosecution is governed by 18 U.S.C. § 5032. This verbose statute is far from a model of clarity. Cf. United States v. A.S.R., 81 F.Supp.3d 709, 714 (E.D.Wis.2015) (“[T]his is about as dysfunctional ... a statute ... [as] you could find.”) (internal citations omitted). Nonetheless,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT