PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4302

TYREESH WHITE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-95-196)

Argued: March 2, 1998

Decided: April 6, 1998

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkins and Judge Luttig joined.

_________________________________________________________________

COUNSEL

ARGUED: Michael Patrick O'Connell, Charleston, South Carolina,
for Appellant. Matthew R. Hubbell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee. ON BRIEF: J. Rene Josey,
United States Attorney, Ben A. Hagood, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellee.

_________________________________________________________________
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Tyreesh White appeals from his convictions for attempted bank
robbery and carrying a firearm during a crime of violence in violation
of 18 U.S.C.A. § 2113 (West 1984 & Supp. 1998) and § 924(c) (West
1976 & Supp. 1998). Although 17 years old when he committed the
offenses, White was prosecuted as an adult in federal court after the
district judge entered an order pursuant to the Juvenile Justice and
Delinquency Prevention Act, 18 U.S.C.A. § 5032 (West 1985 &
Supp. 1998). White appeals, challenging the district court's jurisdic-
tion under this statute. Because the district court properly exercised
jurisdiction, we affirm.

I.

On June 7, 1995, the Government moved to proceed against White
in federal court as an adult. As mandated by the fourth paragraph of
18 U.S.C.A. § 5032, the Government filed a motion to transfer setting
forth the reasons why White, a juvenile, should be prosecuted as an
adult in federal court and, in accordance with the tenth paragraph of
that statute, the Government filed a "record certification" of White's
juvenile records. The Government, however, failed to file the "need
certification" required by the first paragraph of§ 5032.

Despite the absence of the Government's need certification, the
district court granted the Government's motion to transfer. White was
then tried as an adult in federal court and sentenced to 110 months for
attempted bank robbery and 60 months for using or carrying a firearm
during the robbery, totalling 170 months imprisonment. At sentencing
White also pled guilty to escaping from federal custody, in violation
of 18 U.S.C.A. § 751(a) (West 1976 & Supp. 1998), and received a
concurrent sentence of 14 months imprisonment.

II.

Although White originally challenged his sentence, at oral argu-
ment he abandoned that claim and pursues only a jurisdictional attack

                    2
on his convictions. He maintains that his convictions should be dis-
missed because the Government's failure to file a need certification
rendered the district court without jurisdiction.

White did not assert his jurisdictional argument in the district court.
Courts, however, can always consider questions as to subject matter
jurisdiction -- whenever raised and, indeed, even sua sponte. See,
e.g., United States v. Juvenile Male, 923 F.2d 614, 616 (8th Cir.
1991). Because proper certification under § 5032 is jurisdictional, see
United States v. NJB, 104 F.3d 630, 632 (4th Cir.), cert. denied, 117
S. Ct. 1722 (1997), we address White's claim here. See Juvenile
Male, 923 F.2d at 616.

Specifically, White maintains that because the Government failed
to file a need certification that attested to fulfillment of § 5032's enu-
merated requirements, the district court lacked jurisdiction over his
case. In support of this contention, White asserts two basic arguments:
one centers on the Government's failure to provide a statement of
"substantial federal interest" in the documents it filed with the district
court; the other focuses on the Government's failure to file with the
district court a separate document denominated as a need certification.
We address each argument in turn.

A.

The Attorney General, or a United States Attorney to which this
responsibility has been delegated, see 28 C.F.R. § 0.57 (1997), must
demonstrate the need to prosecute a minor as an adult in federal court
by certifying to the district court that:

          (1) the juvenile court or other appropriate court of a State
          does not have jurisdiction or refuses to assume jurisdiction
          over said juvenile with respect to such alleged act of juve-
          nile delinquency, (2) the State does not have available pro-
          grams and services adequate for the needs of juveniles, or
          (3) the offense charged is a crime of violence that is a felony
          or [is] an offense [specifically named in this paragraph], and
          that there is a substantial Federal interest in the case or the
          offense to warrant exercise of Federal jurisdiction.

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18 U.S.C.A. § 5032 (first paragraph).

White asserts that this paragraph of the statute requires the Govern-
ment to establish one of the three listed requirements and the exis-
tence of a "substantial federal interest." The Government maintains
that it must establish a "substantial federal interest" only in conjunc-
tion with prong (3). The statute can be read to support either interpre-
tation. See Impounded, 117 F.3d 730, 731 n.1 (3rd Cir. 1997)
(explaining how text of statute supports both interpretations). How-
ever, the statute's legislative history unequivocally reflects Congress'
intention to require that the Government demonstrate a "substantial
federal interest" only when asserting certification based on prong (3)
-- a crime of violence or an enumerated federal felony.

Prior to 1984, § 5032 provided two bases for a need certification:
(1) if the state was "unable or unwilling to do anything" or (2) "if the
state was unequipped to offer programs and services adequate for the
needs of the juvenile." United States v. Juvenile Male #1, 86 F.3d
1314, 1320 (4th Cir. 1996) (internal quotations omitted). In 1984,
however, Congress added the third prong to § 5032, greatly expand-
ing the bases for prosecuting a juvenile in federal court. Id. As we
recognized in Juvenile Male #1, Congress also "injected" into this
third prong a "new element" of proof not applicable to the original
two prongs: the Government must demonstrate "the crime [is] of a
sufficiently serious type that federal resources should be called upon"
in prosecuting a juvenile in federal court. Id. at 1320.

Indeed, the Senate Report accompanying the new legislation
clearly demonstrates that Congress intended to require the Govern-
ment to prove a "substantial federal interest" only when claiming
jurisdiction under prong (3) of § 5032. The report noted that the 1984
amendment added "a third category to existing law" which permitted
"the disposition of a case involving a juvenile charged with a serious
felony by means of a Federal proceeding." S. Rep. No. 98-225, at 389
(1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3529 (1984). This new
prong, the report explained, also required the Government to demon-
strate "a substantial Federal interest" in the case to warrant the exer-
cise of federal jurisdiction, and emphasized that this "substantial
Federal interest" requirement was designed to limit the reach of the
new amendment to those cases "giv[ing] rise to special Federal con-

                    4
cerns." Id. (internal quotations omitted). Nowhere does the report sug-
gest that the amendment imposes a similar "substantial federal
interest" requirement in proving either prong (1) or (2). See also
Juvenile Male #1, 86 F.3d at 1320-21 (citing with approval United
States v. Doe, 13 F.3d 302, 304 n.1 (9th Cir. 1993), which held that
"the government must show a substantial federal interest only when
it certifies a serious felony crime"); Impounded, 117 F.3d at 731 n.1
(concluding "substantial federal interest" is requirement only of prong
(3)); United States v. Juvenile No. 1, 118 F.3d 298, 303 n.6 (5th Cir.
1997) (same); United States v. Wong, 40 F.3d 1347, 1363 (2d Cir.
1994) (same without explanation).

We recognize that recently we suggested in NJB that the Govern-
ment was required to certify a "substantial federal interest" when
asserting jurisdiction under any one of the three prongs. See NJB, 104
F.3d at 632. Other courts have similarly interpreted the first paragraph
of § 5032. See United States v. Jarrett , 133 F.3d 519, 535 (7th Cir.
1998); United States v. Tolliver, 61 F.3d 1189, 1199 (5th Cir. 1995),
cert. granted and judgment vacated on other grounds by Sterling v.
United States, 516 U.S. 1105 (1996). Because NJB only involved the
sufficiency of the Government's certification under prong (3), our
suggestion there that the Government must prove a"substantial fed-
eral interest" in relation to prongs (1) and (2) is dictum. As explained
above, that dictum conflicts with both the legislative history of § 5032
and our prior discussion in Juvenile Male #1. Moreover, neither the
Jarrett nor Tolliver courts offer any reasoning to support their similar
conclusions. Accordingly, we hereby disavow the dictum in NJB.

B.

White's remaining contention is that the Government's failure to
file a specific need certification document prevented the district court
from properly asserting jurisdiction under § 5032. The Government
concedes that it did not file with the district court a separate need cer-
tification, but contends that information included in its timely motion
to transfer substantively satisfied the need certification requirements
of § 5032. The Government also maintains the need certification it
has filed with this Court establishes the district court's jurisdiction in
view of the fact that White has suffered no prejudice and never
asserted lack of jurisdiction below.

                     5
Although the Government must certify to the district court that its
case fulfills one of the enumerated requirements of a need certifica-
tion, like our sister circuits, we "refuse[ ] to allow jurisdiction to be
defeated by a . . . ministerial act related to the certification require-
ment of § 5032." Wellington, 102 F.3d at 504 (failure to file need cer-
tification did not defeat jurisdiction where information in transfer
motion satisfied § 5032's certification requirements). See also United
States v. Angelo D., 88 F.3d 856, 860 (10th Cir. 1996) (Government's
failure to demonstrate express delegation from United States Attorney
to Assistant United States Attorney to file transfer motion would not
defeat jurisdiction under § 5032); United States v. Baker, 10 F.3d
1374, 1395 (9th Cir. 1993) (holding need certification filed after
information returned was "timely" because"the statute includes no
deadline for filing a certification . . . and no court has imposed one");
United States v. Doe, 871 F.2d 1248, 1257 (5th Cir. 1989) ("technical
failure in filing is not fatal to jurisdiction" (internal quotations omit-
ted)).

Certainly, "the practice of filing a separate document providing the
need certification required by § 5032 is preferable." Wellington, 102
F.3d at 503. However, if the Government's timely transfer motion
filed with the district court contains all of the information necessary
to satisfy the need certification requirements, and a later formal certi-
fication confirms the accuracy of that information, we will not hold
that the lack of a timely, properly denominated filing divested the dis-
trict court of jurisdiction under § 5032.

In this case, the Government's transfer motion contains informa-
tion satisfying the requirements of a § 5032 need certification. First,
the transfer motion was properly executed by the Acting Chief of
General Litigation in the Criminal Division of the Department of Jus-
tice, to whom, pursuant to 28 C.F.R. § 0.57, the Attorney General had
delegated this authority. See 18 U.S.C.A.§ 5032 (paragraph one).
Second, the transfer motion states that in South Carolina White would
be prosecuted as an adult rather than as a juvenile, indicating that the
South Carolina juvenile courts lacked jurisdiction to proceed against
White in satisfaction of prong (1). Thus, as White himself acknowl-
edged at oral argument, this information satisfies the requirements of
a need certification if we should conclude, as we have, that the Gov-
ernment is not required to certify a substantial federal interest in con-

                     6
junction with a need certification based on prong (1) or (2) of the first
paragraph of § 5032.

In sum, we refuse to elevate form over substance. Because the
Government presented to the district court the information necessary
to satisfy the need certification requirement in its transfer motion and
corroborated that information in a later certification filed with this
court, the district court properly exercised jurisdiction under § 5032.

AFFIRMED

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