United States v. Juvenile Male J.A.J.
134 F.3d 905
8th Cir.
1998
Check Treatment

*1 ARNOLD, Chief S. Before RICHARD MAGILL, Judge, and McMILLIAN Judges. Circuit MAGILL, Judge. Circuit old when he years seventeen J.A.J. was pos- for the federal crimes arrested was codeine, cocaine, marijuana, crack session of to federal pled guilty J.A.J. handgun. after the dis- charges juvenile delinquency jurisdiction. On it had court1 held trict sufficiency of challenges the appeal, J.A.J. Attorney’s 18 U.S.C. the United States that a substantial § 5032 certification jurisdic- justified federal in the case the United Because tion. aof prosecuto- act is an unreviewable discretion, affirm. we rial I. during the years old was seventeen

J.A.J. in- with possessed when he autumn of 1996 grams of 1.31 total of to distribute tent codeine. grams and .24 cocaine crack marijuana, grams .94 possessed also J.A.J. Shaw, souri. Charles A. The Honorable of Mis- Judge the Eastern District District *2 906 a .25 caliber semi-automatic handgun, and 6 terest," split and other circuits have on the

rounds of ammunition. J.A.J. was indicted in question. Compare United States v. Juve juvenile federal court on five 1, (5th Cir.) ( counts delin- nile No. 118 F.3d 298 5032 quency. Pursuant to 18 U.S.C. certification of a substantial federal interest United States that reviewable), denied, certified J.A.J. is not cert. was a and that there “awas (1997), substan- 118 S.Ct. - L.Ed.2d tial federal case and the of- Impounded, (3d Cir.1997) 117 F.3d 730 fenses the exercise of warranted] (same), and United States v. jurisdiction.” Certification to Proceed Under (11th Cir.1996) (same), denied, 507 cert. - the Juvenile Justice and Delinquency Act at -, 118 S.Ct. 139 L.Ed.2d 235 2, reprinted, in Appellant’s Add. (1997),with United States v. Juvenile Male (4th Cir.1996)( # 86 F.3d 1314 5032 cer J.A.J. moved to dismiss the case for lack of tification of a substantial federal interest is jurisdiction, and the district court denied the reviewable). motion. The district court stated: [T]hese matters that come here under this While presump executive actions are program weed seed do appear not to tively subject judicial review, to see Gutierrez any this Court to have overwhelming sub- de Martinez v. 417, 434, Lamagno, 515 U.S. stantial Many people interest. in the com- 2227, 2236, (1995) 115 S.Ct. 132 L.Ed.2d 375 munity just gentrifieation, feel this is clean (noting that “traditional understandings and up neighborhood so other folks can principles basic [are] that determi executive in. It city problem, move seems to be a generally nations subject judicial to re problem, local but course here’s the view and that judgments mechanical are not funding, and the Appeals Court of the kind federal courts are set up to ren Male, States v. [United Juvenile 923 der”), presumption that can be rebutted. (8th Cir.1991),] 614 seems indicate (“[W]e See id. at at 2231 S.Ct. have all the United States has to do is stated again time and review of certify, just say they have a substan- executive action will not be cut off unless tial interest and the Court can’t look be- there persuasive reason to believe that prove hind it to make them they have purpose was the Congress.” (quota this interest.... I don’t know there’s omitted) tions (emphasis added)); see also any substantial federal but I’m Wayte 598, 607, 470 U.S. supposed to check them on that. 1524, 1530-31, 105 S.Ct. 84 L.Ed.2d 547 (1985) (“So Tr. at reprinted Appellant’s long prosecutor Br. at 1- proba 2. The district court then ble cause to dismissed believe that the J.A.J.’s commit accused motion “with reluctance.” ted an reprinted by statute, Id. at offense defined the deci in Appellant’s Br. at 2. sion pled guilty prosecute, J.A.J. whether or not and what all charges, charge and was to file sentenced to or bring grand before a jury, concurrent probation. generally sentences two years of entirely rests J.A.J. his discretion.” now appeals (quotations, citations, ruling district court’s it alteration omit ted)). had Supreme The explained that: This broad largely discretion rests on the

II. recognition that the decision to prosecute particularly ill-suited to review. The determination of whether an subject Such factors as the strength case, executive decision is re~ prosecution’s question law, general value, deterrence view is a which we review de Tucker, the Government’s priorities, enforcement novo. See United States v. (8th Cir.), denied, U.S. -, and the relationship case’s to the Govern- cert. - (1996). ment’s overall plan enforcement are not 136 L.Ed.2d 35 readily susceptible yet analysis to the kind of This Court has not considered whether a the courts are Attorney's competent to undertake. review a United States supervision Judicial area, moreover, in this § 5032 certification that the of a systemic entails juvenile represents particular costs con- a "substantial Federal in- (rely- rez, at 2231 515 U.S. prosecu- of a basis Examining the eern. considerations heavily threat- on two additional proceeding, ing criminal delays the tion subjecting Attorney Gen- reviewability: chill law ens to to find and decisionmak- motives prosecutor’s reviewability, there because eral advocated may undermine inquiry, and ing to outside for a United States incentive was a financial *3 the by revealing effectiveness prosecutorial (2) certification certify; and the Attorney to All policy. Government’s controversy). dispositive of the was decision make concerns that are substantial these provide mean- to Finally, a statute’s failure the to examine hesitant properly the courts judicial can for review ingful standards prosecute. to whether decision permitted. is not that dispositive review Other 607-08, 1530-31. 105 S.Ct. at Id. at 599-600, Doe, 486 v. See Webster discretion prosecutorial acts unreviewable (1988) 632 100 L.Ed.2d un decision Attorney General’s the include (“[Ejven not Congress has affirmative- when 594(e) jurisdiction § to refer 28 der U.S.C. not oversight, is review ly precluded counsel, see independent to an matter over a a so that if is drawn be had the statute to 1316-19; Tucker, a United States meaningful standard have no would court § 6003 under 18 U.S.C. Attorney’s decision exercise judge agency’s the which to against the testify is in to compelling a witness that APA) (quota- (interpreting of discretion.” interest, v. United see Ullmann public omitted)). citations tions and 431-34, States, 350 (1956); a United L.Ed. 511 100 procedure for the 5032 describes Section 18 under Attorney’s certification States (2) (1) and in court juvenile trying a ad appeal from an an § 3731 U.S.C. an adult tried as transferring juvenile to be a not taken ruling is suppression verse juris- A district court court. in federal ma delay evidence and involves purposes juvenile if over a diction v. United States proceedings, see to the terial (3d Cir.1988); the 761 Kepner, 843 F.2d the United Attorney States [or General 18 under Attorney General’s to investigation, certifies Attorney], after 3503(a) deposi a subject of § that the U.S.C. court of the United district appropriate have testimony believed to preserve tion to (1) juvenile court or other States crime, see United organized participated have not of a State does appropriate court (7th Ricketson, 374 v. jurisdic- to assume or refuses jurisdiction Cir.1974); a United and respect to such juvenile with said tion over Pet Department’s under Justice decision (2) the delinquency, juvenile act of alleged a Policy prosecute defendant ite programs available not have does State state has faced after the defendant needs adequate and services conduct, underlying see same charges for the a charged is juveniles, or the offense 178-79 602 Delay v. United felony or [an is a violence crime of Cir.1979). (8th crime], there drug and that enumerated intended Congress if To determine the case interest in Federal a substantial of a United judicial review § to allow 5032 exercise to warrant or the offense the fed Attorney’s certification serve juvenile would of a eral added). look we Section (emphasis § 5032 18 U.S.C. statute, see prohibit or text and structure allow specifically Kifer 5032 does Co., 777 F.2d Liberty Ins. Mut. cer- General’s review the Cir.1985) (“[W]e by (8th guided 1332 does nor paragraph, under tification object is primary rule’ that our the ‘cardinal “substan- constitutes a explain what § 5032 legisla to effectuate to determine interest.” tial Federal language from the gleaned intent as tive § allow within paragraphs Separate entirety.”), as its .considered the statute court. juvenile to adult aof transfer may illu factors any additional well regard, in this provides, See, Section e.g., Gutier- purpose. minate 5032’s alleged Attorney's juvenile who is to have commit- motion to transfer a birthday explicitly subject ted an act after his sixteenth adult court-which is specific which if committed an adult would be a review and has standards for felony offense that has as an element Attorney's review-and the United States use, attempted use, thereof the or threat- certification of a substantial federal inter- physical against per- ened use of force explicitly est-which is standardless and not subject another, that, by very nature, son of or its Congress to review. "Where in- physical involves a substantial risk that particular language cludes in one section of a against person force of another statute but omits it in another section of the committing offense, used in or would Act, generally presumed same it is that Con- [enumerated be an offense described in gress intentionally purposely acts previously *4 statutes] and who has been disparate inclusion or exclusion." Russello v. guilty found of an act which if committed 16, 23, United 464 U.S. 104 S.Ct. by an adult would have been one of the (1983) (quotations, 78 L.Ed.2d 17 cita- paragraph offenses set forth in this or an tions, omitted). Accordingly, felony and alteration offense in violation of a State stat- Congress's specifically judi- ute that would have been such an offenseif decision to allow transfer, giving juris- cial review of but not of certification a circumstance rise to Federal existed, interest, powerful diction had shall be transferred to of a substantial federal appropriate the district court of the United evidence that review of the latter is prosecution. 305; States for criminal barred. See Juvenile No. 118F.3d at following 102 F.3d at 511. Evidence of the factors shall considered, findings regard be and with Further, creating 5032, Congress § record, each factor shall be made in the provide chose not to standards for courts to assessing whether a transfer would be in assess when a substantial federal interest is justice: age the interest of the and social implicated, despite providing explicit background juvenile; stan of the the nature of alleged offense; dards for the review of transfers. the the extent and nature Such a lack of standards is fatal to the juvenile's prior delinquency record; juvenile's present develop- appellant's argument reviewabiity. the intellectual See psychologicalmaturity; Webster, ment and the na- 486 U.S. at 108 S.Ct. at past ju- 2051-52; 305; ture of treatment efforts and the Juvenile No. 118 F.3d at response efforts; Impounded, 735; venile's to such the 117 F.3d at cf. Juvenile availability programs designed to treat Male, (holding 923 F.2d at 617 juvenile's problems. the considering behavioral In § review was available for 5032 certification offense, the nature of the as violence, that offense was a crime of required by paragraph, this the court shall noting "[h]ere, question no exists as to consider the extent to which the apply the standard we should to determine played leadership organiza- role in an alleged whether the crime is one of the tion, persons or otherwise influenced other Congress crimes that has determined merits part activities, involving to take the use or distribution of controlled sub- in criminal the intervention the federal courts. .. While this court not have factor, stances or firearms. Such a if power guide prosecutor's a federal exist, weigh found to shall in favor of a discretion, we must insure that the exercise status, transfer to adult but the absence of of that discretion is within the confines of preclude this factor shall not such a trans- 5032.").2 section (emphasisadded). Id. Congress While has not created standards § determining The structure and text of 5032 whether a substantial federal clearlydistinguishes prosecution, betweena UnitedStates interest exists to allow federal analyzing statement, 2. In theFourthCircuit sufficient"to confer See United implied #1, concludedthattheJuveuileMaleCourt Statesv. JuvenileMale 86F.3d 1317- merelyreciting statutorylanguage [re- (4thCir.1996). "that garding interest'] a `substantialFederal wouldbe presence authority to ascertain ment’s promulgated of Justice Department different is no Ad substantial prosecutors. by for use standards pros- authority whether to decide its from of adult of prosecution dressing when type of forum. This a federal a case in ecute precisely should fenders declined — parameters squarely within falls decision held determination prosecutorial sort unreview- [is prosecutorial discretion judi exempt from to be Supreme v. Arm- able].”); also see United see, Wayte, 470 U.S. review, e.g., cial -, strong, 517 U.S. of a sub the lack 1530-3 1 —for (“The 134 L.Ed.2d Department stantial Attorneys retain and United pro General Manual Attorneys’ Justice crim- the Nation’s to enforce broad discretion vides: latitude because They have this inal laws. should determining whether In by statute Presi- they designated no because be declined discharge his help him delegates to dent’s by prosecution, be served would Care to ‘take responsibility constitutional should government attorney for faithfully executed.’ that the Laws considerations, includ- relevant weigh all (other II, quotations Const., Art. 3.” ing: omitted)).3 citations priorities; law 1. Federal *5 of the text and structure conclude We of the seriousness nature and 2. The powers of separation in addition offense; concerns, the United States demonstrate prosecution; of effect The deterrent 3. feder- a substantial Attorney’s certification of in connec- culpability person’s The 4. prosecu- act of unreviewable is al interest an offense; with the tion affirm the Accordingly, we discretion. torial respect to history with person’s The 5. court. district activity; criminal cooper- willingness person’s The 6. ARNOLD, Judge, Chief S. RICHARD of prosecution or investigation in the ate dissenting. others; and makes The Court respectfully dissent. I con- other sentence or probable 7. The persuaded, I am almost arguments, good is convicted. person if the sequences opinion I whole find but on Justice, Attorneys’ Manu- Dep’t of v. Juvenile States in United Circuit Fourth added). 9-27.230(A) (emphasis §al (4th Cir. 1317-21 No. Male law enforce- “Federal Considerations 1996), persuasive. more of effect the “deterrent priorities,” ment every Presumably “willing- defendant’s prosecution,” Attorney who by the United or believed investigation in the cooperate ness Federal embody a “substantial it to brings sort precisely others” prosecution of indictment, in an Requesting executive, interest.” in the invested judgments policy of in a certification sense, amounts some government. See branch judicial, The exists. an 1530-31; that such every case at Wayte, 470 U.S. however, expressly here, in issue (“In statute context at 511 inter- “a substantial requiring statute, govern- this under particular case involves that a believes Wilkinson, General disagreed with who Judge 3. Chief the federal sufficiently violations reviewability serious in Juve- finding of Fourth Circuit’s adjudication. allowing to warrant criminal code # observed nile Male interpre- court, majority’s § 5032 certi- under review of United A district repudiate of a substantial could fication tation section reasoning would policy determination Its fraught Attorney with mischief. is require, General’s in federal every juvenile proceeding does not deciding case that the subjectively court, fully reevaluate district proceeding. a federal merit invoking a feder- (Wilkin- reasons for government's #1, at 1325-26 Male Juvenile con- prospect of inter-branch The al forum. son, C.J., judgment). concurring in the Suppose that the apparent. flict is certified, possible Square est” be in addition Church, doing to other Music business as factors, something Mart, must mean more. The Mini Alamo Holiness Tabernacle legislative history recognizes of the statute School, Nashville, Christian Alamo of prosecutions juveniles that most Ready Mix, should be Alamo Alamo Discount Gro- prosecutions state courts. Federal cery, are an Advertising, Hartford Alamo exception. S.Rep. Cong., See No. 98th Freight, Farms, Alamo Alamo Restau- 389, reprinted 2nd Sess. in 1984 rant, U.S.Code Alamo Kerr-McGee Transmission Cong. & Ad. News I would Shop, DX, Books; Alamo End Time agree that our review of such a certification Tony extremely deferential, Alamo, Tony

should be Ibut cannot also known as Fernan- agree do, particular Lazar, Tony use of Bernie executive Fernando Ala- power wholly beyond judicial mo, Hoffman, correction. Bernie Bernie Lazar Hoffman, Lazar, Papa Tony, Boris Indi- that, proper It pres- to add vidually & as and Director Officer case, response ent inquiry to an from the Tony & Susan Alamo Foundation and bench, the gave an entirely Square Church, Music plausible basis for its certification. Cases in which such a rejected certification would be Landgarten, Individually Marc & as Man by the courts extremely would be rare. I aging Agent Tony & Susan Alamo present doubt that the case would among Square Foundation & Music Church them. Square Church; Foundation & Music

Tommy Scarcello, Individually & as Managing Agent Tony & Susan Ala Square mo Church; Foundation Music & Miller, Carol Ann also known as Carol *6 Landgarten, Individually Ann & as Man aging Agent Tony & Susan Alamo MILLER; Kody Miller, by Robert A. Square his Foundation Church; & Music parent guardian and natural Miller, Robert A. Susan L. also known as Susan Miller; Carey Miller; Scarcello, Jeremiah Individually Justin Managing & as Miller, minor, by parent legal Agent Tony his & Susan Alamo Founda guardian Carey Miller; Miller; Square Rick Church; tion & Music Defen Miller; Greiner; James dants, Claudia Ave Ma Askey; ria Kelley, Nanette Plaintiffs- Mick;

Appellees, Levy; Edward William R. Richard Hydell; T. Baxter; William J. Lane L. Petra; Ralph Malone; Malone; Debra TONY AND SUSAN ALAMO FOUNDA- Claude; Wylie; Kathy Lucien Donald TION, doing business as Southwest Wylie; Hudson; Timothy Leathers, A.Z. Management Co., Tony Business Revenue, Commissioner of Arkansas De- Susan Foundation, Alamo Christian partment of Finance and Administra- Holy Church, Alamo Christian Alamo tion, Intervenors, Emporium Alma, Builders Arkansas, Candy Company, Alamo Alamo Con- America, Company, struction Alamo Electric of Intervenor-Appellant, Alma, Arkansas, Expert Roofing Alamo Smith, Arkansas, of Fort Turner; Rhodes, Inc.; Alamo Land C.G. Jesse Rev. Jo- Development Company Alma, Ark., seph Orlando; Joseph Orlando; Mrs. Plumbing Alma, Alamo Arkansas, Sweat; Al- Rev. Sweat; Donald Mrs. Donald Quarries Alma, Arkansas, amo Scheff; Scheff; Alamo Rev. David Mrs. David Packing Alma, Arkansas, Larry Willis; Larry Tennessee Rev. Willis; Mrs. Country Boy Distributors, TCB Benson; Distrib- Rev. Addison Mrs. Addison utors; Benson; Ondrisek; Rev. Richard Mrs.