                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-13-1997

Impounded
Precedential or Non-Precedential:

Docket 96-7545




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iled August 13, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-7545

IMPOUNDED
(Juvenile I.H., Jr., Appellant)

On Appeal From the District Court
the Virgin Islands
(Division of St. Thomas and St. John)
(D.C.CRIM.. Nos. 96-86 and 96-91)

Argued: December 10, 1996

Before: SCIRICA, NYGAARD and McKEE,
Circuit Judges.

(Filed August 13, 1997)

KWAME O. MOTILEWA, ESQ.
 (ARGUED)
#1 Regjerings Gade
Third Floor
P.O. Box 304938
St. Thomas
United States Virgin Islands 00803

Attorney for Appellant
JAMES A. HURD, JR., ESQUIRE
United States Attorney
STANLEY L. de JONGH, ESQUIRE
 (ARGUED)
Assistant United States Attorney
5500 Veterans Drive
Suite 260
Charlotte Amalie
United States Virgin Islands 00803

Attorneys for Appellees

OPINION OF THE COURT

McKEE, Circuit Judge.

I.H., a juvenile male, appeals from the district court's
order transferring him from juvenile to adult status for
criminal prosecution pursuant to Section 5302 of the
Juvenile Delinquency Act ("JDA"), 18 U.S.C. § 5032. I.H.
contends that the district court did not have jurisdiction
over the transfer procedure, and that the district court's
factual findings were insufficient to support its decision to
transfer him. We agree that the district court lacked
jurisdiction to begin the transfer procedure.1 Therefore, it is
not necessary to reach the sufficiency of the court's factual
findings.

I.

I.H. was born on November 6, 1978. On October 18,
1995, when I.H. was 16 years old, he, and two adults,
Duncan Connor, Jr., and David Thompson, kidnaped at
gunpoint Leslie and David Kalov by forcibly taking control
_________________________________________________________________

1. Even though we hold that the district court never acquired jurisdiction
over I.H., we nevertheless have jurisdiction over the appeal from the
district court's transfer order. See United States v. Doe, 13 F.3d 302 (9th
Cir. 1993) ("We conclude that although this court has jurisdiction over
the appeal, the district court lacked jurisdiction to commence juvenile
delinquency proceedings against the minor").

                               2
of their car and driving them to Little Magens Bay, St.
Thomas, United States Virgin Islands. I.H. was armed with
a handgun, and sat in the back seat of the car with the gun
trained on the Kalovs who were seated next to him. I.H.
fired one shot during the incident but neither of the Kalovs
was hit, although the car's windshield was shattered. After
arriving at Little Magens Bay, I.H. and the two adult
perpetrators robbed the Kalovs, then raped and sodomized
Leslie Kalov.

About four weeks later, on November 15, 1995, I.H., who
had just turned seventeen years old, committed an armed
robbery of the Emerald Lady jewelry store on St. Thomas,
United States Virgin Islands with an accomplice. I.H. was
subsequently identified as the leader of the duo who first
entered the store and brandished a gun in the face of the
store's employees. The accomplice was still at large when
this appeal was taken.

On March 18, 1996, I.H. was arrested and charged by
information with carjacking in violation of 18 U.S.C. § 2119,
and with the local offense of aggravated rape in violation of
14 V.I.C. § 1700(c).2 Three days later, on March 21, 1996,
I.H., was arrested for the November 15, 1995, armed
robbery of the jewelry store and charged with a Hobbs Act
violation pursuant to 18 U.S.C. § 1951, and possession of
a firearm during the commission of a crime of violence in
violation of 18 U.S.C. § 924(c)(1). He was also charged with
local offenses, including armed robbery and first degree
assault in violation of 14 V.I.C. §§ 1862(2) and 295,
respectively.

On March 29, 1996, the United States Attorney filed a
petition pursuant to Section 5302 of the JDA to transfer
the carjacking and aggravated rape charges to the federal
district court in order to prosecute I.H. as an adult. On
April 3, 1996, a similar § 5302 petition was filed in the
Hobbs Act and armed robbery case. The district court held
_________________________________________________________________

2. Subsequently, on August 8, 1996, the United States Attorney
superseded the information to include additional local offenses
committed during the carjacking and aggravated rape, viz., kidnaping to
commit rape in violation of 14 V.I.C. § 1052, armed robbery in violation
of 14 V.I.C. § 1862 and first degree assault in violation of 14 V.I.C. § 295.

                               3
hearings on both petitions on April 4 and 11, 1996, and on
August 30, 1996, the government's petitions to transfer
both cases for adult prosection were granted. This appeal
followed.3

II.

Section 5032 of the JDA establishes the procedural
requirements for transferring a juvenile4 from state
authorities to a federal district court for criminal
prosecution as an adult. The procedure has two parts. The
first part is the certification procedure, which has two
separate certification requirements. First, there is the "need
certification" provision under which the Attorney General
certifies "there is a need for proceedings to take place in
federal rather than state court." United States v. Doe, 19
F.3d 302, 303 (9th Cir. 1993). Under this provision, the
Attorney General5 must certify 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 juvenile delinquency, (2) the State does
not have available programs or services adequate for
the needs of juveniles, or (3) the offense charged is a
crime of violence that is a felony or an offense
_________________________________________________________________

3. The order from which I.H., appeals is not "final" for the purposes of 28
U.S.C. § 1291; nonetheless, we have appellate jurisdiction pursuant to
the collateral order doctrine. See In re A.M., 34 F.3d 153, 155-56 (3d Cir.
1994).

4. Under the Juvenile Act, a " `juvenile' is a person who has not attained
his eighteenth birthday, or for the purpose of proceedings and
disposition under this chapter for an alleged act of juvenile delinquency,
a person who has not attained his twenty-first birthday. . . ." 18 U.S.C.
§ 5301. Juvenile delinquency "is the violation of a law of the United
States committed by a person prior to his eighteenth birthday. . . ." Id.

5. Under regulations adopted pursuant to 18 U.S.C. § 5032, the Attorney
General delegated her authority to the Assistant Attorney General in
charge of the Criminal Division and his Deputy Assistant Attorneys
General. 28 C.F.R. § 0.57. The Assistant Attorney General is authorized
to redelegate authority to United States Attorneys. United States v. Doe,
98 F.3d 459, 460-61 (9th Cir. 1996).

                               4
[enumerated in this paragraph], and that there is a
substantial Federal interest in the case or the offense
to warrant the exercise of Federal jurisdiction.

18 U.S.C. § 5032 ¶ 1. Second, there is the "record
certification" provision, which states:

Any proceedings against a juvenile shall not be
commenced until any prior juvenile court records of
such juvenile have been received by the court, or the
clerk of the juvenile court has certified in writing that
the juvenile has no prior record, or that the juvenile's
record is unavailable and why it is unavailable.

Id. at ¶ 10.

Once the certification requirements are met, the second
part of the transfer procedure can begin. The United States
Attorney can move in the federal district court to transfer
the juvenile to be tried as an adult. Section 5302 provides
two methods for transfer -- permissive and mandatory. A
permissive transfer can be made if the district court "finds,
after hearing, [that] such transfer would be in the best
interest of justice." Id. at ¶ 4. To determine whether a
transfer "would be in the best interest of justice," the
district court is directed to consider evidence of the
following factors:

the age and social background of the juvenile; the
nature of the alleged offense; the extent and nature of
the juvenile's prior delinquency record; the juvenile's
present intellectual development and psychological
maturity; the nature of past treatment efforts and the
juvenile's response to such efforts; the availability of
programs designed to treat the juvenile's behavioral
problems.

Id. at ¶ 5. In considering the nature of the offense, the
district court is required to "consider the extent to which
the juvenile played a leadership role in an organization, or
otherwise influenced other persons to take part in criminal
activities, involving the use or distribution of controlled
substances or firearms." Id.

A mandatory transfer shall be made if

                               5
[A] juvenile who is alleged to have committed an act
after his sixteenth birthday which if committed by an
adult would be a felony offense that has an element
thereof the use, attempted use, or threatened use of
physical force against the person or another, or that,
by its very nature, involves a substantial risk that
physical force against the person of another may be
used in committing the offense, or would be [an offense
specifically enumerated], and who has previously been
found guilty of an act which if committed by an adult
would have been one of the offenses set forth in this
paragraph or an offense in violation of a State felony
statute that would have been such an offense if a
circumstance giving rise to Federal jurisdiction has
existed. . . .

Id. at ¶ 4.

Here, the government recites that it filed the "requisite
certification" in accordance with Section 5302 of the JDA in
each of the juvenile's cases that it sought to transfer to
district court for adult criminal prosecution. See Appellee's
Br. at 3-4. However, the government admits that it failed to
comply with the record certification requirement of Section
5302. Id. at 9. We assume that by reciting that it filed the
"requisite certification," the government means that it filed
the need certification. I.H. does not allege that the
government did not file the need certification. Nonetheless,
the government argues that its "technical failure[to comply
with the record certification] should not create a fatal blow
to the District Court's exercise of jurisdiction" because the
district court was verbally, and informally, informed that
I.H. did not have a prior juvenile record. Id.

On March 19, 1996, at a detention hearing following
I.H.'s arrest on the carjacking and aggravated rape charges,
the United States Magistrate Judge entered an order
directing the Family Division of the Territorial Court of the
Virgin Islands to supply the United States Probation Office
with "any and all juvenile adjudication information,
criminal indictment and court contacts" concerning I.H.
Supp. Ap. at 1A. The Territorial Court did not comply with
that order. The government's appendix on appeal contains
a copy of a letter from the Clerk of the Territorial Court to

                               6
the United States Probation Office, with a carbon copy to
the magistrate judge, which recites that a search of the
court's "criminal and juvenile records revealed that . . .
[I.H., has] no record with this court." Supp. Ap. at 1.
However, that letter contains neither a certification by the
clerk of the court nor an imprint of an official seal. Further,
the letter is dated November 25, 1996, almost three months
after the district court's order transferring I.H. to federal
district court for prosecution as an adult. However,
according to the government, the United States Probation
Service contacted the Family Division of the Territorial
Court and was informed that I.H., had no prior juvenile
record. The government asserts that it verbally
communicated that information to the district court prior to
the district court's decision on its transfer motions. In
addition, the government claims that the Virgin Islands
Department of Human Services confirmed in writing to the
district court that the Department had no prior contact
with I.H.

Thus, the government is arguing both that it made a
good faith effort to comply, and did substantially comply,
with the record certification requirement. Accordingly, it
asks us to overlook that it did not comply with the letter of
the statute.

I.H. argues that strict compliance with the record
certification provision of § 5032 is a jurisdictional
prerequisite without which the district court cannot
transfer him for criminal prosecution as an adult. He
contends that the government's failure to furnish the record
certification deprives the district court of jurisdiction.

Our inquiry begins, as it must, with the language of the
statute. Consumer Product Safety Commission v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980)("We begin with the
familiar canon of statutory construction that the starting
point for interpreting a statute is the language of the
statute itself."). Section 5032's record certification
requirement reads:

 A juvenile shall not be transferred to adult
prosecution nor shall a hearing be held under section
5037 (disposition after a finding of juvenile

                               7
delinquency) until any prior juvenile court records of
such juvenile have been received by the court, or the
clerk of the juvenile court has certified in writing that
the juvenile has no prior record, or that the juvenile's
record is unavailable and why it is unavailable.

18 U.S.C. § 5032 ¶ 10 (emphasis added). The language of
the statute could not be clearer. It plainly states that a
juvenile "shall not be transferred" for prosecution as an
adult "until" the juvenile's prior court records are delivered
to the district court or until the clerk of the juvenile court
has certified in writing that the juvenile has no such
record.

The courts of appeals that have considered this issue are
in near unanimous agreement that the record certification
requirement is a jurisdictional prerequisite in a transfer
proceeding. See, e.g., United States v. Wong, 40 F.3d 1347,
1369-70 (2nd Cir. 1994); United States v. Parker, 956 F.2d
169, 170 (8th Cir. 1992); United States v. Juvenile Male,
923 F.2d 614, 620 (8th Cir. 1991); and United States v.
Brian N., 900 F.2d 218, 222-23 (10th Cir. 1990).

The record certification requirement is not met if the
government makes absolutely no effort to comply with the
record certification requirement, United States v. Juvenile
Male, 923 F.2d at 620, or if the government knows of the
existence of juvenile records but makes no effort to provide
them to the district court. United States v. Brian N., 900
F.2d at 223. In such cases, the district court has no
jurisdiction to begin the transfer procedure. The
government relies upon United States v. Parker, supra, to
argue that a good faith effort, or substantial compliance, is
sufficient to confer jurisdiction. There, the court held that
a letter from a state court judge and letters from three
assistant district attorneys, all of which stated that no
charges had been filed against the juvenile in their
respective counties, satisfied the record certification
requirement of § 5032. The court said: "[W]e decline to
stand on technicalities." 956 F.2d at 170. However, the
court's analysis is not so compelling as to persuade us that
we can ignore the clear language of the statute by labeling
it a "legal technicality". Moreover, United States v. Juvenile
Male and United States v. Parker concern the government's

                               8
efforts to transfer the same juvenile, "P.P.," to adult
prosecution in a contract murder conspiracy. In Juvenile
Male, the court had found lack of jurisdiction because the
government made no effort to comply with the record
certification provision. Accordingly, the court's later
decision in Parker not "to stand on technicalities" may well
have been driven more by frustration at the government's
inability or unwillingness to comply with the record
certification provision than by a reasoned analysis of the
statute. Interestingly, in the earlier case where the
government failed to comply with the certification
requirements to transfer P.P. to be tried as an adult, the
court ruled there was no jurisdiction over the juvenile
stating, "we reaffirm that a certification in compliance with
section 5032 is necessary to invoke federal jurisdiction
under that section." United States v. Juvenile Male, 923
F.2d at 618. The court then went on to state "[i]n summary,
section 5032 has specific jurisdictional requirements and
compliance with their requirements is necessary for federal
court jurisdiction to exist. . . . the government failed to
comply with the statute and, thus, failed to invoke federal
jurisdiction." Id. At 620. In any event, we will not effect a
judicial amendment of the statute by reading in language
that would allow for the exception that the government
urges.

Despite the decision in United States v. Parker, we
conclude that the language of the statute requires strict
and literal compliance with the record certification
requirement. Absent some evidence of contrary
congressional intent, we must assume that the statute
means what it says. A juvenile "shall not be transferred to
adult prosecution . . . until" the district court receives any
prior juvenile court records or the clerk of the juvenile court
certifies that there are no such records. This statute is not
so ambiguous as to require us to resort to legislative history
to decide its meaning. Smith v. Fidelity Consumer Discount
Co., 898 F.2d 907, 910 (3d Cir. 1990)("[S]tatutory
construction should halt at such time as the court
determines the text at issue to be plain and unambiguous"),
citing Rubin v. United States, 449 U.S. 424, 430 (1981).
Nevertheless, we note that the legislative history is

                               9
consistent with our analysis, and is another reason why we
remain unpersuaded by U.S. v. Parker.

The record certification requirement was added to § 5032
in 1984, as part of the Comprehensive Crime Control Act of
1984. See Pub. L. No. 98-473, § 1201(c), 98 Stat. 1837,
2150 (1984). In describing the provision, the Senate Report
commented:

Too often, however, juvenile proceedings are
undertaken without the benefit of such information.
This new paragraph stresses that these records be
obtained beforehand whenever possible. The
Committee intends, however, that this new provision's
requirements are to be understood in the context of a
standard of reasonableness. Thus, if reasonable efforts
to obtain a juvenile's records have been made, a
certification of their unavailability is permissible. Also,
the Committee intends that this new requirement be
applied with a degree of flexibility so that stages of
proceedings to which such records are not relevant are
not delayed pending arrival of the records. Thus, it is
appropriate that a hearing concerning a transfer for
prosecution await the arrival of a juvenile's court
records, since they are highly relevant to the transfer
decision.

S.Rep. No. 225, 98th Cong., 2d Sess. 391 (1984), reprinted
in 1984 U.S.C.C.A.N. 3182, 3531 (emphasis added).
Although it could be argued that the Report's concern for
"reasonableness" and "flexibility" support the government's
position here, and the holding in Parker, the context of that
language requires a contrary interpretation. The Report
simply states that the actual records need not be produced
following "reasonable" efforts to find them so long as "a
certification" of their unavailability is tendered. Similarly,
the concern for "flexibility" is addressed, not by relaxing the
jurisdictional prerequisite, but by insuring that the records
are not required until the appropriate stage of the
proceedings.

Accordingly, neither the clear language of the statute, nor
its legislative history, allows for substantial, good faith, but
inadequate compliance with the required record

                               10
certification. Here, the jurisdictional prerequisites of § 5023
were not met and the district court was therefore without
jurisdiction to transfer I.H. to district court for criminal
prosecution as an adult. Accordingly, the district court's
August 30, 1996, order transferring I.H. for adult criminal
prosecution is without force and effect.

Although the district court's transfer order has no effect,
I.H. does not automatically escape adult prosecution in
federal court. The United States Attorney is still free to
proceed under § 5032 because I.H. has not yet "attained his
twenty-first birthday." See 18 U.S.C.§ 5031 and United
States v. Juvenile Male, 923 F.2d at 620.

III.

For the above reasons, we will vacate the August 30,
1996, order transferring I.H., to the district court for
criminal prosecution as an adult and remand for further
proceedings.

Proceedings under the JDA begin with the filing of an
information. 18 U.S.C. § 5032 ¶ 3. However, § 5032 does
not state when the record certification must be provided to
the district court. The Tenth Circuit has held that the
record certification must be filed when the information is
filed. United States v. Brian N., 900 F.2d at 223 ("We believe
that the statute mandates the filing of such records at the
commencement of the proceedings -- the filing of the
information."). However, the Second Circuit, while stressing
that the government "should always endeavor to supply the
district court with official juvenile records prior to the filing
of an information," has found that the government's
furnishing of a certified copy of the juvenile's prior record
after the transfer motion was filed but immediately prior to
the district court's decision to order the transfer was timely.
United States v. Wong, 40 F.3d at 1370.

The issue here, however, is not the precise timing of the
filing of the record certification, but whether the
government filed the record certification as required for
jurisdiction over a juvenile. Because we have found that the
requirement was not met in this case, we offer no opinion
on the question of what stage prior to the court obtaining

                               11
jurisdiction over a juvenile the record certification must be
filed.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                               12
