120
Juvenile delinquency proceedings --
certification
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It may be deemed appropriate to proceed against the
juvenile(s) in federal
court. This process is divided into two (2) distinct methods
depending upon
whether the juvenile will be treated as a juvenile delinquent or a
criminal
(adult). Juvenile adjudication is presumed appropriate unless the
government
establishes that prosecution as an adult is warranted. United
States v.
Juvenile Male #1, 47 F.3d 68, 71 (2d Cir. 1995); United
States v.
A.R., 38 F.3d 699, 706 (3d Cir. 1994). Prosecution by either
method can
proceed by information, although seeking to transfer juvenile cases
to adult
status could begin with a complaint and result in an indictment if
such transfer
is granted by the court. 18 U.S.C.A. § 5032 (West Supp. 1995).
Certification|B250 is not required prior to the filing of a
complaint and
issuance of an arrest warrant. See United States Attorneys'
Manual,
Volume III(a), Title 9-8.120. This
may come into
play when arrests are made by federal investigators and later it is
determined
that the arrestee is a juvenile.
The certification requirement is a prerequisite to the
district court's
subject matter jurisdiction in cases where the government proceeds
against
juveniles accused of performing acts which would be federal crimes
if committed
by adults. United States v. Chambers, 944 F. 2d 1253, 1259
(6th Cir.
1991), cert. denied, 502 U.S. 1112, 112 S. Ct. 1217, 117 L.
Ed. 2d 455
(1992). The information for juvenile offenders is similar to
informations filed
for adult offenders, although it is a good idea to include language
stating the
charges are generally based upon the authority to proceed against
juveniles under
18 U.S.C.A. § 5032, as well as particularly setting forth the
actual criminal
offense(s).
The United States Attorney may wish to prosecute the juvenile
as a juvenile
delinquent rather than treating him as an adult or criminal.
Certification by
the United States Attorney must be made to the United States
District Court that
(1) the juvenile court or other appropriate state court does not
have
jurisdiction over the juvenile with respect to the alleged act of
juvenile
delinquency, (2) the state does not have available programs and
services adequate
for the needs of juveniles, or (3) the offense charged is a violent
felony or an
offense described in 21 U.S.C.A. §§ 841, 952(a), 955, 959,
960(b)(1),
(2), (3); 18 U.S.C.A. § 922(p) or (x), or 18 U.S.C.A. §
924(b), (q) or
(h), and there is a substantial federal interest in the case or the
offense to
warrant the exercise of federal jurisdiction. 18 U.S.C.A. §
5032 (West Supp.
1995). The third certification reason as described in the
preceding sentence
will probably be most appropriate when dealing with gang violence.
While Section 5032 does not define crime of violence, the
phrase is defined
in Title 18, United States Code, Section 16. Section 16 is
referred to in the
legislative history of the amendment to Section 5032. S. Rep. No.
225, 98th
Cong., 2d Sess. 389 & n.7, reprinted in 1984 U.S.C.C.A.N. 3182,
3529 & n.7. The
term "crime of violence" means:
- an offense that has as an element the use,
attempted use, or
threatened use of physical force against the person or property of
another, or
- any other offense that is a felony and that, by its nature,
involves a
substantial risk that physical force against the person or property
of another
may be used in the course of committing the offense." 18 U.S.C.A.
§ 16 (West
Supp. 1995).
Conspiracy to commit a violent crime is a crime of violence as
contemplated
by Sections 16(b) and 5032. Conspiracies that may properly be
deemed crimes of
violence include those whose objectives are violent crimes or those
whose members
intend to use violent methods to achieve the conspiracy's goals.
United
States v. Doe, 49 F. 3d 859, 866 (2d Cir. 1995). A conspiracy
to commit a
non-violent crime is not a crime of violence under the applicable
provisions.
See United States v. Cruz, 805 F. 2d 1464, 1475 (11th Cir.
1986), cert.
denied, 481 U.S. 1006, 107 S. Ct. 1631, 95 L. Ed. 2d 204
(1987). Thus,
conspiracies to commit drug trafficking under 21 U.S.C.A. § 846
are not
transferrable. United States v. Baker, 10 F. 3d 1374, 1394
(9th Cir.
1993), cert. denied, ___ U.S. ___, 115 S. Ct. 330, 130 L.
Ed. 2d 289
(1994).
Filing a certification in compliance with Section 5032 is a
jurisdictional
requirement. United States v. Juvenile Male, 923 F. 2d 614,
618 (8th Cir.
1991); United States v. Brian N., 900 F. 2d 218, 222-23 &
n.8 (10th Cir.
1990); cf. United States v. Gonzalez-Cervantes, 668 F. 2d
1073, 1077-78
(9th Cir. 1981) (filing certification appearing accurate on its
face is required
before proceeding under Section 5032; filing of accurate
certification, however,
is not a jurisdictional requirement). Section 5032 does not set
forth when the
certification must be filed. It does not state that proceedings
cannot be
undertaken until a certification is filed. See,
Gonzalez-Cervantes, 668
F. 2d at 1077 n.6. Establishing factors necessary for federal
jurisdiction is
not always a prerequisite to initiating federal proceedings.
Chambers,
944 F. 2d at 1260. One court has ruled that the delayed filing of
the
government's certification at the close of its case in chief was
timely where the
defendant was at much at fault by failing to raise the issue at
earlier stages
of the proceedings. Id. No prejudice to the Defendant had
been shown
although the court called the government's action "regrettable
tardiness."
Id.
The certification may be judicially reviewed for the limited
purpose of
determining compliance with Section 5032. Juvenile Male,
923 F. 2d at
617. Thus, the court may reject a certification where the
certifying party is
not a proper delegate of the Attorney General, where the
certification is not
timely filed, or where the certification fails to state that the
state courts
lack or decline jurisdiction, or lack appropriate juvenile
services. United
States v. C.G., 736 F. 2d 1474, 1477 (11th Cir. 1984). Courts
may not
inquire into the correctness of the statements made in the
certification unless
bad faith has been established on the part of the government.
Id. at
1477-78. Bad faith may be indicated in decisions to prosecute
which are
deliberately based upon race, religion, or other arbitrary
classifications,
including the exercise of protected statutory and constitutional
rights.
United States v. W.P., Jr., 898 F. Supp. 845, 851 (M.D. Ala.
1995)
(quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.
Ct. 1524, 1531,
84 L. Ed. 2d 547 (1985)).
The limit to certification review is explained by one court as
a procedure
that falls into the category of unreviewable determinations to be
made by the
Attorney General. United States v. Vancier, 515 F. 2d 1378,
1381 (2d
Cir.), cert. denied, 423 U.S. 857, 96 S. Ct. 107, 46 L. Ed.
2d 82 (1975).
The court noted that the Act contains no provision for judicial
review of the
Attorney General's certificate and no standards by which to
evaluate whether an
appropriate court has jurisdiction or whether adequate programs and
services
exist. Id. at 1380. Further, the court recognized several
instances
where the executive branch is granted unreviewable discretion in
law enforcement
matters, such as the grant of immunity to compel testimony,
certification that
a proceeding is against someone believed to have participated in
organized crime,
and certification that an interlocutory appeal is not taken solely
for delay.
Id. at 1381.
United States Attorneys are delegated the authority of the
Assistant
Attorney General in charge of the Criminal Division, pursuant to 18
U.S.C.A.
§§ 5032, 5036, and 28 C.F.R. § 0.57, to file
certifications in
federal district court to prosecute juveniles for acts of juvenile
delinquency.
Memorandum from Assistant Attorney General Jo Ann Harris for all
United States
Attorneys (July 20, 1995); See also United States v. Cuomo,
525 F. 2d
1285 (5th Cir. 1976).
It is a good practice to file documents concerning juveniles,
such as the
certification, with the style of the juvenile's initials. This
will ensure the
caption is not changed to a generic title (e.g., United States v.
Juvenile Male)
if taken on appeal and the case can maintain its individuality for
future
reference.
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