*1 any time, She did provided not have Bendectin left over information at that no prior pregnancy. from satisfactory explanation for the later con- tradiction, appeals the courts of are in Moreover, explanation was offered in agreement subsequent affidavit the affidavit for the contradictions.2 As a result, genuine does not create a issue of permissible we conclude that it was material disregard for the district court to fact. the affi- purposes determining davit for whether judgment of the district court will be dispute
there was a material fact. affirmed.3 appeals The numerous other courts of that have considered the situation which contradicts, party satisfactory without
explanation, prior testimony, or her
have reached the same decision. Each
court has objectives concluded that the
summary judgment seriously im- would be
paired if the district court were not free to
disregard
conflicting
affidavit. Franks
America,
UNITED STATES of
Nimmo,
(10th Cir.1986);
v.
If a who has been examined at
length deposition on could raise an issue simply by
of fact submitting an affidavit
contradicting testimony, own greatly diminish utility
summary judgment procedure
screening out sham issues of fact. When,
410 F.2d at 578. as in the
case, the affiant carefully questioned issue,
on the
had access to the relevant
We,
course,
2. Attached to Plaintiff's motion to reconsider
grant
review the district court’s
was a second affidavit of Louise
summary judgment
Martin in
on the basis of the record
which she averred:
before it when the motion was submitted and
Alldredge,
decided.
During
United States v.
January
unpacking
as I was
old
(3rd Cir.1970);
accumulated,
my family
Corp.,
Jaconski v.
medicines
Avisun
(3rd Cir.1966).
I recalled that I
John Stuart U.S. Atty., McCullough, Acting U.S. Douglas Atty., Bogdanos, Sp. F. Asst. U.S. Matthew N.C., brief), plaintiff-appel- Raleigh, on lee. WINTER, Judge,
Before Chief CHAPMAN, Judge, Circuit SPENCER, District Judge for Eastern District of designation. Virginia, sitting by WINTER, L. Chief HARRISON Judge: v. Juve- prior appeal,
In
United States
(4 Cir.1987), we
Male,
F.2d
nile
defendant,
allegedly confess-
held that
three
his rela-
murdered
having
toed
old,
fifteen
he was
in 1981when
tives
apprehended and
who was not
but
juvenile information
by
with the crime
not be
twenty, could
was
1986 when he
transfer
under the
an adult
prosecuted as
II
(Supp.
of 18 U.S.C.
provision
after
1984),
added
had been
view, the
committed.
our
were
crimes
proceed against
only
could
government
under
delinquent
defendant as
18 U.S.C.
provisions of
subsequent amend-
apply
because
the Constitutional
would violate
ment
legislation.
post
against ex
hibition
facto
rendered, de-
decision
Before our
after our
twenty-one; and
fendant became
rendered,
decision was
to dismiss
granted leave
sought The information
information.1
6, 1987,
July
and on
July
on
was dismissed
defendant,
indicted
7, 1987,
jury
a grand
of first-
the three counts
charging him with
48(a), F.R.Crim.P.
Rule
sought
dismiss
obtained
Leave to
degree
allegedly
murder
committed
him ly the district court’s order in this ease
fifteen,
when he was
and one count
conclusively
establishes at the district court
alleged escape.2
level that
may
defendant
be tried as an
juvenile.
adult
not as a
That issue is
In the
sought
district
defendant
*3
quite separate and distinct from whether
dismiss the murder indictment on several
he
guilty
is or is not
charged.
crimes
grounds, viz. that the
juve-
dismissal of the
While,
guilty
if found
adult,
as an
defend-
nile information
gross prosecu-
constituted
ant could still
legality
contest the
trying
misconduct,
torial
an abuse of discretion
adult,
him as an
we think that much of the
prosecutorial harassment,
and
dis-
sequellae
right
of his
to be
juve-
tried as a
missal
juvenile
information and sub-
nile, if
meritorious,
that claim is
would be
sequent
indictment
vindictive
constituted
lost,
irrevocably
so
may fairly
that it
prosecution, and that the Ex Post Facto
said that his claim “effectively
is
unreview-
clause and the Due Process clause barred
appeal
able on
from a
judgment.”
final
An
defendant’s indictment as an adult. The
proceeded
accused
against
as a
district court considered and rejected these
delinquent
statutory
rights
given
contentions in a
opinion,
memorandum
and
to an accused who is tried as an
adult.
defendant appeals.
essentially
He
raises
juvenile is entitled
sealing
to the
of court
points,
these same
government,
and the
in
records,
inquiries
records,
limitation of
into
addition to responding
contentions,
to his
protection from photographing and with-
asserts that
the denial of the motion to
holding
picture
of his name and
from the
(as
dismiss the indictment
to the three
5038;
news media. See 18 U.S.C.
murder)
charging
counts
is not a final or-
C.G.,
(11
Cir.1984).
States
[are]
II.
from a final judgment.” Coopers
Lyb &
rand v. Livesay,
parties’
and the district
2454, 2458, 57
(1978).
L.Ed.2d
view,
Certain-
court’s
this case presents close issues
escape
2. The
to have occurred on
unsuccessfully
sought
indictment was
in the
January
1987 before defendant became
district
the correctness of the denial of
twenty-one. While dismissal of this count of
appeal.
is not
dismissal
raised
years or older
juveniles fifteen
transfer of
vindictiveness
prosecutorial
Pro-
involving
felony
the Due
of a
as
accused of the commission
harassment
and Ex Post Facto
prohibition.
designated
Clause
crime of violence or other
cess
is a
however,
simple issue of
it,
aas
see
adult,4
We
drug
offenses
statutory application.
of a
over sixteen
the transfer
prose-
other felonies
accused of certain
question that Smith
is
There
delinquent by
as a
as an
against
cution
adult.
ceeded
information
filing
aof
terms,
simplest
the stat-
to its
Reduced
twenty-
he was under
while
him
if
circumstanc-
says that
one
Smith’s
ute
then and
in effect
Both the statute
one.
juvenile delin-
proceeded
es is
is
if a
provided that
now
effect
*4
no other
information,
criminal
by
quent
alleged juvenile
as an
against
proceeded
against him
instituted
prosecution shall be
Attorney
“the
delinquent
in a district
exceptions, none of
except with certain
information,
by
proceed
shall
General
Because the statute is
applies here.
which
institut-
shall be
prosecution
criminal
no
that it
unambiguous, we conclude
plain and
acts
ed
the
of
applied literally.5 We conclude
be
should
”, below
except as
quency
provided
yet at-
that, although jeopardy had not
ap-
is
exceptions
of the
5032.3 None
C. §
dis-
the district court
tached at
the time
by
request
a
They include
here.
plicable
defendant,
adult,
against
the information
the missed
tried as an
to be
the
nature,
risk that
very
a substantial
portions
involves
pertinent
of
the
actual text of
3.The
person
against
of another
physical
the
force
follow:
§ 5032
offense,
committing
may
the
or
used in
be
Delinquency proceedings in district
§ 5032.
in section
be an
described
would
offense
courts;
prosecution
for criminal
transfer
title,
(h), (i)
81, 844(d), (e), (f),
this
or 2275 of
guilty
previously
of
been found
and who has
delinquent
alleged juvenile
is not sur-
If an
by an adult would
if committed
an act which
or the
of a
to the authorities
State
rendered
set
in this
of the offenses
forth
have been one
section,
pursuant to this
District of Columbia
a
in
of
or
offense
violation
an
subsection
against
in an
him shall be
any proceedings
such
felony
been
statute that would have
State
the
States.
appropriate
court of
United
district
giving rise to
a circumstance
offense if
an
may
purposes,
be con-
the court
For such
existed,
be
jurisdiction
shall
had
Federal
any
place
the dis-
within
vened at
trict,
time
appropriate
court of
district
to
transferred
the
Attorney
otherwise. The
or
in chambers
prosecution,
for criminal
United States
the
by information,
proceed
General shall
added)
(emphasis
prosecution shall be instituted
except
delinquency
alleged act of
under
in
provision
added
4. This
provided below.
Male,
holding
United States
Juvenile
in
our
have committed
is
apply
case.
in this
supra, does not
delinquency
is not
and who
an act of
be
authorities shall
surrendered
State
colleague
view that
dissenting
is of the
Our
5.
chapter unless he
against
this
ceeded
under
of
within
definition
does not fall
Smith
writing upon
of coun-
requested
advice
in
under
information
"juvenile” because
adult, except
against
proceeded
as an
sel to be
that,
dismissed,
in-
and Smith was
5032 was
§
respect to a
fifteen
expla-
age 21. No
attained
until he had
dicted
an act
alleged to have committed
and older
why
of the
as to
dismissal
is advanced
nation
birthday
if commit-
which
after
fifteenth
information,
been filed
which had
felony
is a
a
by
would be
an adult
ted
“disposi-
a
was not
Smith was under
when
or an offense described
of violence
crime
meaning of
proceeding within
tion"
841, 952(a),
of title
or 959
section
a "dis-
dismissal was
that the
We think
§
of the al-
prosecution on the basis
criminal
leged
Smith was
proceedings so that
position”
begun by
may
to transfer
motion
be
"juvenile”, and
squarely
definition
within the
appropriate
Attorney
in the
General
prose-
against another criminal
prohibition
States, if such
the United
district court of
fully applicable.
is
cution
finds,
hearing,
would
such transfer
court
after
by
demon-
however,
our brother
cited
juve-
As the authorities
justice;
in the interest
strate,
case if the
a far different
would be
an act
alleged to have committed
is
nile who
an information
had not
filed
government
birthday
if commit-
his sixteenth
after
sought an indictment
against
or
felony
Smith
be a
by
adult
offense
ted
an
merely
filed
use,
21 or
attempted
Smith became
after
thereof
an element
has [as]
by
infor-
not followed
complaint which
use,
physical
force
use of
or
threatened
that,
another,
while Smith
its
mation
person
or
government
pletely
once the
invokes 18
separate
U.S.C.
from the merits of the
action,
may
proceed
it
not in the future
but the
effectively
decision is not
appeal
unreviewable on
except
judg-
the defendant
from a final
accordance
ment. Smith’s claim that
provision.
with the terms of that
It
he should not be
is
tried
consequence
preserved
as an adult would be
little
that the
did
presented
could be
to this court after his
delays
not manufacture in bad faith the
judgment
case has been tried and a
final
which resulted in the defend
entered.
awaiting
ant still
trial as of his
birthday.
contemplates
The Act itself
majority equates
statutory pro-
jurisdiction over someone in the defend
given
juveniles
tections
with the consti-
ant’s circumstances is not automatically
guarantee against
tutional
double
lost once he attains the
of 21. See 18 I
reasoning,
cannot fathom this
nor can I
5037(b);
Doe,
understand the
majority
conclusion of the
(9 Cir.),
denied,
112-13
cert.
that the third Cohen element is satisfied in
agree require- the first two long Cohen The Court has also held that “this ments have met. policy strongest been The order of the at in is its the field of conclusively district court has determined a criminal law.” Holly- States v. [United disputed question, question Co., 263, 265, and the is com- wood Motor Car authorized, express 5037(b), respect We no view with to the effect under 18 U.S.C. to government’s 99-646, dismissal of the its amendment Pub.L. 100 St. 1, possible proceedings. information on further effective November order his com- note, however, note, support reading exceeding years. We as to our mitment for not however, two We it, amendment, given the statute and the effect to be that had that since the 1987 dismissed, period the information not been the district of maximum detention is fixed at three sitting years, court aas court would not have unless had attained the event, statute, jurisdiction twenty-two. lost of the case when defendant In the latter as then, age twenty-one. adjudi- probation reached Even if it amended in is silent as to or delinquent, a cated him it would have been detention.
711 (1) person “a is defined as nile. 754 73 L.Ed.2d eighteenth birth- not years ago who has attained forty than (1982).] More (2) purpose the final day,” for or the reasons “for noted Court compelling chapter an “especially under this disposition rule are judgment justice.” per- delinquency, a in the administration States, supra, [309 v. United has not attained Cobbledick who son Prompt- at S.Ct. 541]. at 325 18 U.S.C. 5031. When birthday....” [60 U.S.] trial case to bringing a criminal indicted, ness twenty-one he was Smith as important increasingly become has not claim he could have increased, dockets court crime under statute. a rights of be- have swelled, facilities detention by the used language of the statute The overcrowded. come interpretation Attor- majority its —“the States, 431 U.S. Abney information, proceed by ney General shall (1977), the L.Ed.2d S.Ct. insti- shall be and no criminal an appeal of interlocutory permitted Court acts of tuted motion dismiss pretrial a denying order applies except provided as quency below”— grounds jeopardy on double indictment an delinquent.” alleged juvenile “an only to rule. decision the final exception to p. (empha- supra Majority Opinion, See in- however, ease, does not The apply omitted). not provision does This sis never Smith double volve indicted for has been an adult juve- juvenile. jeopardy placed while he was allegedly committed crime was dis- him filed information nile juvenile. received. any evidence before missed Male, 819 v. Juvenile U.S. language of 18 In United States from the obvious is It Cir.1987), (4th did face not attach we does jeopardy F.2d C. § *6 presented the question reach the proceedings or decide juvenile issue until the begun to be time has at that appeal, because present evidence stage at which the guilty or a age crime twen- respect to the the of attained had not appellant taken lan- relevant The entered. plea has been ty-one. is as follows: guage “juvenile” the words Under 5031 § of a plea has entered aOnce defined, the for delinquency” are “juvenile the has reached proceeding guilty or the Act, Delinquency of the Juvenile purposes tak- begun to has be evidence stage that as follows: alleged or an a respect to crime en with chapter, a of this purposes For the subsequent juvenile delinquency act of at- has not person who a “juvenile” is proceed- or the birthday, or eighteenth his tained act alleged of upon such ings based disposition proceedings purpose be barred. quency shall alleged chapter for an 18 U.S.C. § person a who delinquency, a plea enter did not appellant The birthday, twenty-first not attained reached had not proceedings and the guilty is the viola- delinquency” “juvenile taken. had been evidence stage at which a com- States of the United a tion of law jeopardy Thus, never been he has eigh- to his prior person mitted a third satisfy the do not present facts the a have been birthday which teenth requirements nor the prong of Cohen by an adult. if crime committed Abney. U.S.C. 18 § Ill the definitions obvious seems It must delinquency the act of that of 18 U.S.C. application majority’s The eighteen, but prior committed im- the most “juvenile,” 5032 overlooks § com- person proceedings not a If one is in the statute. word portant can delinquency the act statute, mitted by the not covered he is juvenile, not who has person against a as juve- be treated to be is he entitled nor 712 twenty-first
attained his
birthday.
concluded,
There- Martin court
“The date of the
fore,
requirements
there are two
determinative;
offense is not
filing
ceeding under the
Delinquency
Juvenile
complaint
did not
‘proceed-
commence
First, there
Act:
must be an act of
ings’
5031;
under Title 18 U.S.C.
and the
delinquency
prior
per-
committed
to the
fact
could have
eighteenth
second,
birthday;
proceed-
son’s
brought
charges
earlier is irrelevant.”
ings
under the Act for the
act of
F.2d
at 698.
juvenile delinquency
prior
must occur
Araiza-Valdez,
In United States v.
attaining
the accused
birth-
(9th Cir.1980),
F.2d 430
complaint
day.
present
only
case Smith meets
filed
seventeen-year-old,
but the
requirement:
the first
his act of
bring
Government did not
the indictment
juvenile delinquency
occurred
to his
person
twenty-four
until the
years of
eighteenth birthday. He does not meet the
age. Citing
Doe,
United
States
631 F.2d
requirement necessary
second
to be treated
(9th Cir.),
denied,
cert.
449 U.S.
“disposi-
because there was no
the Juvenile
and that the
to Mexico where she remained for almost
brought
could have
all of the
years.
three
charges
contained in its indictment
to
7, 1979,
twenty-first birthday.
On June
she surrendered and on
The court found
14, 1979,
August
that
an information
the crucial date was the date the
was filed
proceedings.
charging
juvenile delinquency
Government
her with
on
instituted
It fur-
indictment,
appear
ther found that
the
the
not the
basis
her failure to
for sen-
complaint, began
proceedings.
the
tencing
marijuana charge.
The
on the
She de-
trial,
quences
pur-
were not consistent with the
charge
requested a
the
nied
stated,
poses of the JDA and
September
scheduled for
which was
marijuana
sentencing on the
reject
appellant’s
We therefore
inter-
request
charge
postponed at her
was also
pretation of section 5031. We take mod-
that date.
appellant’s
est comfort in the fact that
5037(b)
by
contention is belied
section
September
appellant
became twen-
On
permits juveniles
placed
which
to
September 10
ty-one years
and on
probation,
commitment or on
and thus
for lack of
moved to dismiss both cases
she
kept
juvenile jurisdiction,
peri-
within
was denied and
jurisdiction. This motion
extending beyond
ods
their
Ap-
September
on
proceeded
the trial
birthday.
delin-
pellant
adjudged
to be a
interpretation
Consistent with our
charge and was
quent
jump
on the bail
section
we hold that
inasmuch
two-year terms of
sentenced to consecutive
appellant
the offenses with which the
probation
marijuana
bail
on
occurred while she was un-
jump charge.
eighteen
der the
and both infor-
contended that when she became
Doe
against appellant
mations
were filed be-
longer applied
to
twenty-one the JDA
twenty-first birthday,
fore her
the court
amendments
her. She contended
in treating
was correct
the cases as with-
as,
“juvenile”
defined a
to
which
juvenile jurisdiction.
in its
proceedings
dispo-
purpose
“for the
cases of an twenty-one, the Government initial postpone either to
be forced
ceedings that the accused could be treat- so
ed as an adult or to rush the could be dis-
a conclusion so that the case twenty- defendant’s
posed of before the birthday.. It held that these conse-
first