Juvenile delinquency proceedings -- certification
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:
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).
- 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).
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.