United States v. Tate

• Decision Date: 03 August 1972
• Docket Number: No. 71-1019.,71-1019.
• Citation: 151 US App. DC 261,466 F.2d 432
• Parties: UNITED STATES of America, Appellant, v. Rudolph V. TATE, a/k/a Rudy V. Tate.
• Court: U.S. Court of Appeals — District of Columbia Circuit

151 US App. DC 261, 466 F.2d 432 (1972)

UNITED STATES of America, Appellant, v. Rudolph V. TATE, a/k/a Rudy V. Tate.

No. 71-1019.

United States Court of Appeals, District of Columbia Circuit.

Argued April 14, 1972.

Decided August 3, 1972.

Mr. Roger M. Adelman, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellant. Messrs. Harold H. Titus, Jr., present U. S. Atty., and Gregory C. Brady, Asst. U. S. Atty., also entered appearances for appellant.

Mr. Ronald J. Wilson, Washington, D. C. (appointed by this court), for appellee.

Before TAMM and MacKINNON, Circuit Judges, and RONALD N. DAVIES,^* U.S. Senior District Judge for the District of North Dakota.

TAMM, Circuit Judge:

In this case we are asked to decide whether the district court erred in dismissing the indictment against Rudolph V. Tate, and whether the juvenile court complied with the mandate of a full investigation in the juvenile waiver proceedings in accordance with the teaching in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). We find that error was committed and that the indictment should not have been dismissed. We also find that in its waiver proceeding, the juvenile court judge did in fact comply with the procedures established in Kent.

On June 10, 1969, appellee was arrested in connection with the gunshot murder of a Catholic University student. Tate was seventeen years old at the time and was referred to the juvenile court by the police. Following a detention hearing on June 11, 1969, the juvenile court judge ordered that a waiver proceeding be initiated pursuant to 11 D.C. Code § 1553.¹ On September 30, 1969, a waiver hearing was held to determine whether jurisdiction over appellee should be waived to the district court. At the hearing, the juvenile court judge had before him extensive memoranda from appellee's counsel outlining an alternative plan to waiver of jurisdiction. On October 16, 1969, the juvenile court judge issued an order waiving jurisdiction over appellee. A Statement in Support of Waiver Order was filed along with the order. This statement contained a detailed summary of Tate's legal and social records before the juvenile court and provided a predicate for granting waiver of jurisdiction to the district court.

On January 20, 1970, the grand jury returned a five count indictment against Tate and another youth, charging first degree murder (22 D.C.Code § 2401), second degree murder (22 D.C.Code § 2403), attempted robbery (22 D.C.Code § 2902), and committing a violent crime while armed (22 D.C.Code § 3202). In addition, Tate was charged with carrying a concealed dangerous weapon in violation of 22 D.C.Code § 3204.

Appellee filed a motion in the district court to dismiss the indictment, or in the alternative for the district court to convene itself as a juvenile court pursuant to 11 D.C.Code § 1553. The district court judge remanded the case to the juvenile court for further action. The basis for this remand was the belief of the district judge that a full investigation had not taken place and the waiver order lacked specificity. The juvenile court judge declines to reassume jurisdiction having already ruled on the issue of waiver and believing that the juvenile court no longer had jurisdiction over appellee. The juvenile court judge stated that he could entertain no further proceedings relating to our appellee. After considering the action of the juvenile court, the district court judge issued an order dismissing the indictment. The district court judge again remanded the case to the juvenile court for further proceedings on the issue of waiver citing Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) and Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965). The government sought a stay of this order which was granted by the district court judge.

Appellee contends that the waiver order from the juvenile court lacked the requirements of specificity and full investigation enunciated in Kent v. United States, supra:

The Juvenile Court must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not "assume" that there are adequate reasons, nor may it assume that "full investigation" has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. . . . The statement should be sufficient to demonstrate that the statutory requirement of "full investigation" has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.

383 U.S. at 561, 86 S.Ct. at 1057.

This court believes that the juvenile court judge complied with the mandate of Kent. The Statement in Support of Waiver Order sets forth with acute particularity the relevant considerations for full investigation which the juvenile court relied on in waiving jurisdiction over appellee. The Statement in Support of Waiver Order concluded:

Respondent\'s prior record, his age and sophistication, and his alleged conduct in connection with his current charges, convince the Court that he should be waived to the U.S. District Court to be tried as an adult. Accordingly, on the basis of all the available information and after full investigation the Court waives jurisdiction over the respondent. . . . (Emphasis added)

As this court stated in Creek v. Stone, 126 U.S.App.D.C. 329, 334, 379 F.2d 106, 111 (1967):

The juvenile court is rightly vested with a broad range of discretion in light of its professional expertise. The essence of expertise and discretion is an informed choice between alternatives. When the expert discretion of the Juvenile Court is exercised with knowledge of the salient facts, its exercise of discretion will not be disturbed absent clear abuse.

This court believes that absent a showing of abuse of discretion by the juvenile court judge, the actions taken by him give rise to a presumption of regularity. "All possible presumptions are indulged in to sustain the action of the trial court." Strickland v. United States, 146 U.S.App.D.C. 55, 57, 449 F. 2d 1131, 1133 (1971); T.V.T. Corporation v. Basiliko, 103 U.S.App.D.C. 181, 183, 257 F.2d 185, 187 (1958), citing In re Chapman Coal Co., 196 F.2d 779 (7th Cir. 1952). See also, Mercantile Trust Co. v. Hensey, 205 U.S. 298, 306, 27 S. Ct. 535, 51 L.Ed. 811 (1907); Berenter v. Staggers, 124 U.S.App.D.C. 141, 142 n.2, 362 F.2d 971, 972 n.2 (1966); In re Ripp, 242 F.2d 849, 851 (7th Cir. 1957); Miller v. Delaware, Lackawanna and Western Railroad Co., 241 F.2d 116, 118 (2d Cir.), cert. denied, 354 U.S. 923 (1957).

This court held in Haziel v. United States, 131 U.S.App.D.C. 298, 302, 404 F.2d 1275, 1279 (1968):

The child\'s advocate should search for a plan, or . . . range of plans, which may persuade the court that the welfare of

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