                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-25-1994

USA v. A.R.
Precedential or Non-Precedential:

Docket 93-3572




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 93-3572



                    UNITED STATES OF AMERICA

                                 v.

                     A. R., A MALE JUVENILE

                                  A. R.,

                                           Appellant.



        On Appeal From the United States District Court
           For the Western District of Pennsylvania
              (D.C. Civil Action No. 93-cr-00125)



                     Argued:     May 26, 1994

         Before: COWEN and ROTH, Circuit Judges
                   and BROWN, District Judge1

               (Opinion Filed:    October 25, 1994)



Frederick W. Thieman
United States Attorney
Bonnie R. Schlueter
Assistant United States Attorney
Mark A. Rush (Argued)
Assistant United States Attorney
633 U. S. Post Office & Courthouse
Pittsburgh, PA 15219

    1Honorable Garrett E. Brown, Jr., United States District
Court Judge for the District of New Jersey, sitting by
designation.
Attorneys for Appellee
Thomas S. White
Federal Public Defender
W. Penn Hackney
First Assistant Federal Public Defender
Karen Sirianni Gerlach
Assistant Federal Public Defender
Michael J. Novara, Esquire (Argued)
Office of Federal Public Defender
960 Penn Avenue
415 Convention Tower
Pittsburgh, PA 15222
          Attorneys for Appellant




                        OPINION OF THE COURT




ROTH, Circuit Judge:



            A.R., a juvenile, challenges an order of the district

court granting the government's motion to proceed against him as

an adult.   At the adult certification hearing, also referred to

as the transfer hearing, the government introduced into evidence

several psychiatric and psychological reports.   The evaluations

of defendant, upon which these reports were based, were conducted

in preparation for a similar certification motion, then pending

in state court, regarding unrelated state charges.    A.R. objected

to the use of these reports, contending that their use violated

his Fifth and Sixth Amendment rights because the evaluations were

performed without prior Miranda warnings and without prior notice

to his appointed counsel.    A.R. also claims that the district

court abused its discretion in granting the motion to proceed
against him as an adult.    Because we find these contentions to be

without merit, we will affirm the order of the district court.

                                 I.

            On May 27, 1993, appellant A.R. and a group of

companions allegedly spotted a white Pontiac Trans Am in a hotel

parking lot and decided to steal it.    A.R. approached the car,

pointed a gun at the head of the woman in the driver's seat and

told her to get out because he was taking the car.    The driver

and her passenger got out of the car.    A.R. and N.A., a female

juvenile who accompanied him, got into the Trans Am and drove

away.    They were apprehended following a high-speed chase.    A.R.

was charged with conspiracy to commit carjacking, the substantive

offense of carjacking, and use of a firearm during the commission

of a crime of violence.    After he was in custody, state

authorities also filed charges against him for a number of armed

robberies at ATM machines committed the day before the

carjacking.

            At the time of his arrest, A.R. was 17 years old.    He

was taken to a juvenile detention center where he underwent a

psychological evaluation on June 11 and a psychiatric evaluation

on June 16.    Both were conducted at the request of the district

attorney, working on the state charges, for use in a hearing in

state court to determine whether A.R. should be certified as an

adult.    The reports of these evaluations were designed only for

use in the certification proceeding and were not intended for

later use in either a criminal trial or juvenile delinquency

proceeding.
          The reports concerned A.R.'s intellectual development

and psychological maturity.   In addition, the reports commented

upon his past problems, his response to prior treatment efforts,

and the likelihood or not of future treatment within the juvenile

justice system being successful.   The reports included summaries

of the doctors' conversations with A.R. concerning the carjacking

incident and his general course of delinquent behavior.    They

also included observations on his attitude and social

interaction.   The psychiatrist's report concluded that A.R. had a

"conduct disorder" and a "personality disorder, mixed type," and

stated in its recommendation that "[h]is behavior thus far

indicates need for a highly secure facility."   App. at 279.   The

psychologist focused on A.R.'s intransigence and sarcasm during

their interview, as well as his reported difficulties in

"thinking." The report concludes:
          It appears that [A.R.] was not honest in
          today's interview. Moreover, he made a
          number of statements which are alarming.
          Although he claims not to remember the latest
          incident, he never expressed any regret over
          his behavior. Instead, he tends to glorify
          himself and what he has done. [A.R.] has
          already demonstrated his failure to benefit
          from placement and his open defiance of the
          rules of those placements. At this time, I
          cannot think of anything more that the
          juvenile system can offer him.


App. at 281.

          According to A.R., he was not given Miranda warnings

prior to the evaluations, nor was his counsel given notice that

they were to occur.   The record before us contains no explicit
factual findings concerning the truth of the allegations in the

report.2   The government concedes that the usual practice prior

to this type of evaluation includes neither the giving of Miranda

warnings nor the provision of notice to counsel.   We will assume

that no warning or notice was given.

           After the government filed its information in this

case, it sought the district court's permission to proceed

against A.R. as an adult.   Pursuant to 18 U.S.C. § 5032, the

district court held a hearing on the adult certification motion

on October 13, 1993, at which both sides presented witnesses.

The statute provides that, at such a transfer hearing,
          [e]vidence of the following factors shall be
          considered, and findings with regard to each
          factor shall be made in the record, in
          assessing whether transfer would be in the
          interest of justice: 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.


18 U.S.C. § 5032.   At the hearing, the district court heard

testimony from a number of witnesses familiar with A.R. and his

background.   Although neither of the doctors, who conducted the

evaluations at issue on this appeal, were called to testify,

their reports were nevertheless admitted into evidence over

    2
    But see footnote 3, supra.
A.R.'s objection that they were obtained in violation of his

Fifth and Sixth Amendment rights.3

            A.R. did present his own psychiatrist, Dr. Wettstein.

Dr. Wettstein testified that he felt that "there is a reasonable

possibility that [A.R.] can be held in the juvenile system

clinically, psychologically, psychiatrically."    Ap. at 247.    He

acknowledged, however, that A.R. "doesn't have good enough

impulse control at this point to manage things.   So he has to

live in a residential facility that's fairly secure," App. at

251, and agreed that A.R. is "a dangerous individual."    App. at

256.

            On October 25, 1993, the district court entered an

order granting the government's motion to proceed against A.R. as

an adult.    A.R. filed a timely notice of appeal on November 2,

1993.

                                II.

            The district court had jurisdiction over this juvenile

delinquency proceeding pursuant to 18 U.S.C. § 5032.    We have

jurisdiction pursuant to the collateral order exception to the

final judgment rule.   28 U.S.C. § 1291.   See Government of the

Virgin Islands in the Interest of: A.M., No. 93-7736 (3d Cir.

Aug. 16, 1994) (holding that transfer orders fall within the

    3
      Counsel did not request an opportunity to cross-examine the
doctors who prepared the reports or present evidence concerning
their backgrounds, methods or conclusions. Once the reports were
admitted, he has taken no further steps to contest their
validity.
collateral order doctrine).     We have plenary review of the

district court's disposition of A.R.'s constitutional claims.

United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert.

denied, 474 U.S. 971 (1985).    Because the decision to transfer a

juvenile for prosecution as an adult is committed to the sound

discretion of the trial court, we review that decision only for

an abuse of discretion.    United States v. Doe, 871 F.2d 1248,

1255 (5th Cir.), cert. denied, 493 U.S. 917 (1989).

                                 III.

            The Fifth Amendment provides that "[n]o person ...

shall be compelled in any criminal case to be a witness against

himself."   The privilege against self-incrimination is rooted in

the notion that ours is an accusatorial, rather than

inquisitorial system.     As such, the individual may not be forced,

through his own testimony, to assist the state in securing a

conviction against him.    Toward that end, the privilege "protects

any disclosures which the witness may reasonably apprehend could

be used in a criminal prosecution or which could lead to other

evidence that might be so used."     In re Gault, 387 U.S. 1, 47-48

(1967) (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 94
(1964) (White, J., concurring)).     The focus, then, is not on the

type of proceeding in which a statement is made "but upon the

nature of the statement or admission and the exposure which it

invites."   Id. at 49.
          A.R.'s Fifth Amendment challenge to the use of the

reports of the psychiatric and psychological evaluations at the

transfer hearing is based on the Supreme Court's decision in

Estelle v. Smith, 451 U.S. 454 (1981).   In Estelle, which

concerned a capital murder prosecution, the trial court ordered a

pre-trial psychiatric evaluation of the defendant in order to

determine whether he was competent to stand trial.    The defendant

was not informed of his rights prior to the evaluation, was

adjudged competent to stand trial, and was found guilty of first

degree murder.   The problem arose at the sentencing phase of the

trial when the court allowed the government to present the

testimony of the psychiatrist who performed the evaluation,

concerning the future dangerousness of the defendant.

          In affirming the order vacating the death sentence, the

Court provided three bases for its conclusion that the

defendant's Fifth Amendment rights were violated.    First, because

of "the gravity of the decision to be made at the penalty phase,"

the Court noted that it could "discern no basis to distinguish

between the guilt and penalty phases of respondent's capital

murder trial so far as the protection of the Fifth Amendment

privilege is concerned."   451 U.S. at 462-63.   Second, the Court

found it significant that the use of defendant's statements from

the evaluation in the penalty phase went considerably beyond "the

limited, neutral purpose of determining his competency to stand

trial" for which the evaluation was ordered.     Id. at 465.
           Consequently, the interview with Dr. Grigson
           cannot be characterized as a routine
           competency examination restricted to ensuring
           that respondent understood the charges
           against him and was capable of assisting in
           his defense. Indeed, if the application of
           Dr. Grigson's findings had been confined to
           serving that function, no Fifth Amendment
           issue would have arisen."


Id. (emphasis added).   Finally, the Court examined the consider-

ations undergirding Miranda's restrictions on custodial

interrogation.   It concluded that the use of the psychiatrist's

testimony at the penalty phase in effect transformed what, it

again emphasized, was otherwise "a neutral competency

examination" into custodial interrogation within Miranda's

purview.
           When Dr. Grigson went beyond simply reporting
           to the court on the issue of competence and
           testified for the prosecution at the penalty
           phase on the crucial issue of respondent's
           future dangerousness, his role changed and
           became essentially like that of an agent of
           the State recounting unwarned statements made
           in a postarrest custodial setting.


Id. at 467.

           Viewed in terms of the general Fifth Amendment

principles outlined above, the reason the evaluation created a

self-incrimination problem when used at the penalty stage, but

not at the competency determination, lies in the purpose and

effect of the evaluation's use.   At the penalty stage in Estelle,

the defendant's statements were being used to prove an element of

the government's burden in the criminal prosecution.    At the
competency stage, however, the issue of guilt or innocence is yet

to be addressed.   Before the substance of the case can be

addressed, the court has to determine whether the status of the

defendant is such that the case can proceed at all.   As the Court

concluded in Estelle, as long as the use of the evaluation is

confined to this preliminary scope, there is no Fifth Amendment

violation.

          Consideration of the present case in light of the

analysis in Estelle, informed by the purposes of the privilege

against self-incrimination, leads us to conclude that there was

no violation of A.R.'s Fifth Amendment rights.   Other courts

addressing adult certification hearings have repeatedly

characterized them as civil in nature,4 primarily because they

result only in a decision upon the status of the individual.

See, e.g., United States v. Parker, 956 F.2d 169, 171 (8th Cir.

1992); United States v. Brian N., 900 F.2d 218, 220 (10th Cir.


    4
      Our analysis of this point, as well as of the issues
presented more generally in this case, is informed by the Supreme
Court's opinion in Kent v. United States, 383 U.S. 541 (1966), in
which it considered the question of what protections must be
afforded a juvenile at a transfer hearing.     The Court did not
express an opinion as to the merits of transfer in the case, but
held that "there is no place in our system of law for reaching a
result of such tremendous consequences without ceremony--without
hearing, without effective assistance of counsel, without a
statement of reasons."     Id. at 554.     The Court cautioned,
however, that "[w]e do not mean by this to indicate that the
hearing to be held must conform with all of the requirements of a
criminal trial or even of the usual administrative hearing; but
we do hold that the hearing must measure up to the essentials of
due process and fair treatment." Id. at 562.
1990).    The determination is not one of guilt or innocence, or

even of delinquency or non-delinquency, but rather concerns the

manner in which the state elects to proceed against an alleged

malefactor.    As such, the district court "is entitled to assume

that the juvenile committed the offense charged for the purpose

of the transfer hearing."    In re Sealed Case, 893 F.2d 363, 369

(D.C. Cir. 1990).    Furthermore, while the evidence introduced at

the hearing must be consistent with the concepts of due process

and fundamental fairness, it need not be in compliance with the

Federal Rules of Evidence.    United States v. Doe, 871 F.2d at

1255.    And although the government bears the burden of rebutting

the statutory presumption of juvenile treatment, the government

need only persuade the court by a preponderance of the evidence.

Parker, 956 F.2d at 171.    Finally, the ultimate decision on

waiver is committed to the sound discretion of the trial court.

United States v. Gerald N., 900 F.2d 189, 191 (9th Cir. 1990).

            The determination that the trial court must make at an

adult certification hearing, then, parallels that which must be

made at a competency hearing.    Both proceedings deal with a

preliminary forensic determination.    More fundamentally, both

deal with whether a defendant should be exempted from criminal

prosecution because he falls within a category of persons who, in

the eyes of the law, are not viewed as fully responsible for

their acts.    The use of the psychiatric or psychological reports

is very similar, whether they are generated when an adult is
examined for competency or a juvenile is examined for

certification as an adult.   In neither case does the report bear

on the ultimate substantive question of guilt or innocence.   In

both situations, the evaluation serves the same "limited, neutral

purpose."5   The failure to administer Miranda warnings to A.R.

prior to the evaluations did not deprive him of his right against

self-incrimination, because the use of the evaluations at the

transfer hearing did not incriminate him.6
    5
      The transfer statute provides that "[s]tatements made by a
juvenile prior to or during a transfer hearing shall not be
admissible at subsequent criminal proceedings."     18 U.S.C. §
5032.
    6
      We note that we are aware of and have considered United
States v. J.D., 517 F.Supp. 69 (S.D.N.Y. 1981), which is
apparently the only other case considering this precise question
and which reached a contrary result.    The court's reasoning in
that case, however, was explicitly based on the Supreme Court's
statement in Gault that "no person shall be 'compelled' to be a
witness against himself when he is threatened with deprivation of
his liberty." 387 U.S. at 50. In Allen v. Illinois, 478 U.S.
364, 372 (1986), the Supreme Court backed away from this broad
statement of the privilege's applicability in civil proceedings,
here a civil commitment under the Illinois Sexually Dangerous
Persons Act, proclaiming that it "is plainly not good law."
     We note further that the court in United States v. J.D. gave
as one reason for its decision the fact that "defendants would be
open to a far larger period of incarceration if the transfer
motion were to be successful than if they were to be proceeded
against as juveniles."    517 F.Supp. at 72.    However, to date
there has not been defined a constitutional right to be tried in
the court where, if the defendant were to be found guilty, the
lightest sanction would be imposed.     Cf. Sill v. Pennsylvania
State University, 462 F.2d 463 (3d Cir. 1972) ("It is well
settled that there is no constitutional right to be heard by a
particular tribunal", citing Crane v. Hahlo, 258 U.S. 142
(1922)). For this reason, we conclude that, despite the penalty
that may ensue, the civil proceeding to select the appropriate
forum in which to try a defendant does not implicate Fifth
Amendment protections against self-incrimination.
                                IV.

          The Sixth Amendment provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right ... to have the

Assistance of Counsel for his defense."        A.R.'s Sixth Amendment

challenge is also based on Estelle.          The accused in that case,

Ernest Benjamin Smith, had appointed counsel at the time of the

examination.   The Supreme Court held that, under the

circumstances there presented, Smith had "a Sixth Amendment right

to the assistance of counsel before submitting to the pretrial

psychiatric interview."   451 U.S. at 469.       The Court explained

the rationale for the right to counsel as follows:
          It is central to the Sixth Amendment
          principle that in addition to counsel's
          presence at trial, the accused is guaranteed
          that he need not stand alone against the
          State at any stage of the prosecution, formal
          or informal, in court or out, where counsel's
          absence might derogate from the accused's
          right to a fair trial.


451 U.S. at 470 (brackets omitted) (quoting United States v.
Wade, 388 U.S. 218, 226-27 (1967)).         The Sixth Amendment

violation in Estelle stemmed from the fact that the psychiatric

evaluation "proved to be a 'critical stage' of the aggregate

proceedings against respondent."      Id.    Thus the evaluation was

not itself inherently the sort of event to which the right to

counsel attaches.   Instead, as was the case under the Fifth

Amendment, the psychiatrist's testimony only became a problem
when used for something apart from, and with more dire potential

consequences than, the competency determination.7

          This reading of Estelle is consistent with the rest of

the Court's Sixth Amendment jurisprudence, from which the Ninth

Circuit has extracted three factors by which to measure whether a

given proceeding is a "critical stage" such that the right to

counsel attaches:
          First, if failure to pursue strategies or
          remedies results in a loss of significant
          rights, then Sixth Amendment protections
          attach. Second, where skilled counsel would
          be useful in helping the accused understand
          the legal confrontation ... a critical stage
          exists. Third, the right to counsel applies
          if the proceeding tests the merits of the
          accused's case.


Menefield v. Borg, 881 F.2d 696, 698-99 (9th Cir. 1989)
(citations to Mempa v. Rhay, 389 U.S. 128 (1967), and United

States v. Ash, 413 U.S. 300 (1973), omitted); United States v.

Bohn, 890 F.2d 1079, 1080-81 (9th Cir. 1989).   See also Meadows

v. Kuhlmann, 812 F.2d 72, 76-77 (2d Cir.), cert. denied, 482 U.S.

915 (1987); 2 Wayne R. LaFave & Jerold H. Israel, Criminal
Procedure § 11.2(b) (1984).

    7
      That Estelle's holding that the right to counsel attached
to the psychiatric evaluation depends on the later use of the
evaluation at the sentencing proceeding is supported by the
Court's opinions in Satterwhite v. Texas, 486 U.S. 249 (1988), in
which it characterized Estelle as holding "that defendants
formally charged with capital crimes have a Sixth Amendment right
to consult with counsel before submitting to psychiatric
examinations designed to determine their future dangerousness,"
id. at 251 (emphasis added), and Powell v. Texas, 492 U.S. 680
(1989) (per curiam).
          Applied to the instant case, it seems clear that the

evaluations of A.R. are not the sort of "critical stage" to which

the right to counsel attaches.   None of the factors identified by

the Ninth Circuit are directly implicated, nor, in the language

of Estelle, would the absence of counsel "derogate from the

accused's right to a fair trial."   451 U.S. at 470.    No

significant rights are at stake in the evaluation itself.       At the

transfer hearing, where a determination is actually made as to

the juvenile's status, a juvenile has the right to counsel as

well as the opportunity to attack the methods employed and

conclusions reached by the person who conducted the evaluation.

Nor is the evaluation a legal confrontation that can only be

fully understood after consultation with counsel.      Furthermore,

the merits of the juvenile's case are not in issue for, as noted

above, the trial court in the context of an adult certification

hearing may assume that the juvenile committed the offense.

          For these reasons, and because § 5032 provides that a

juvenile's statements made "prior to or during a transfer

hearing" may not be used at a criminal trial, the right to a fair

trial, which underlies Estelle, is not implicated.     Simply

stated, counsel would serve no functional purpose at a

psychiatric evaluation the results of which are used, as is

necessarily the case here, only in making the neutral

determination whether a juvenile should stay within the juvenile
justice system or be treated as an adult.8    A.R., therefore, had

no Sixth Amendment right to counsel in connection with the

evaluations.

                                  V.

             A.R.'s final claim is that the district court abused

its discretion in deciding to certify him for adult prosecution.

In general, a district court abuses its discretion when it acts

in a fashion "clearly contrary to reason and not justified by the

evidence."    Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir.

1977).   In the context of a certification order, such an abuse of

discretion occurs if the court fails to make the factual findings

as required by 18 U.S.C. § 5032; see United States v. C.G., 736

F.2d 1474, 1479 (11th Cir. 1984), or if the court's factual

findings are clearly erroneous; see United States v. Gerald N.,

900 F.2d 189 (9th Cir. 1990); see also United States v. G.T.W.,

992 F.2d 198 (8th Cir. 1993).


    8
      Further support for our holding may be found in this
court's decision in United States ex rel. Stukes v. Shovlin, 464
F.2d 1211 (3d Cir. 1972). In that habeas case the state trial
court had, on its own motion and without notice to either side,
ordered the defendant to undergo a psychiatric examination for
purposes of determining whether he was competent to stand trial.
We held that the examination was not a "critical stage" of the
proceedings. Id. at 1213 & n.5. With respect to the assertion
that counsel should have been given notice of the evaluation, we
held as follows:     "The examination was completely ex parte
without notice to or knowledge of it by either defense counsel or
the prosecution. Under the circumstances shown in this record,
we find that the failure to notify counsel of the examination did
not deny defendant a fair trial or the effective assistance of
trial counsel." Id. at 1214.
          A.R. makes no allegation that these conditions exist.

Though the district court's opinion is brief, it manifests full

consideration of the evidence presented at the hearing.     The

court made specific findings under each of the six statutory

factors and explained how each weighed in the transfer decision.

A.R. attacks this weighing, suggesting that the court

overemphasized the "seriousness of the offense" factor.

Carjacking is a violent felony, however, and A.R. threatened his

victims with a .25 caliber semi-automatic pistol.   The court was

entitled to give more weight to this factor than to others, and

generally to weigh the statutory factors as it deemed

appropriate.   United States v. Doe, 871 F.2d 1248, 1255 (5th Cir.

1989).

          Next, A.R. suggests that the court did not give proper

emphasis to the testimony of his witnesses.   Credibility

determinations of this sort, however, depend on first-hand

observation of the witness and for that reason are best left to

the judgment of the district court.   Absent a claim of prejudice-

-and we are presented with no such claim here--this court will

not second-guess the district court's conclusions concerning the

credibility of witnesses and its implications for the weighing of

testimony based on a cold record.

          Finally, A.R. suggests that the district court

improperly shifted the burden of proof because its opinion states

that "the nature of the offenses with which he is charged and his
response to previous treatment efforts do not indicate a

probability of rehabilitation as a juvenile."   United States v.

A.R., No. 93-125, at 7 (W.D.Pa. Oct. 25, 1993).    The statute

clearly intends a presumption of juvenile treatment, and the

government bears the burden of establishing that transfer is

warranted.   Some courts have adopted a "preponderance" standard,

United States v. Parker, 956 F.2d 169 (8th Cir. 1992), while

others have opted for a "clearly convincing" standard.    United

States v. M.L., 811 F.Supp. 491 (C.D.Cal. 1992).    Here there is

no claim of insufficient evidence, however, and the quoted

sentence is only one aspect of the district court's

consideration.   The ultimate standard, set forth in the statute,

is whether the court finds that the transfer "would be in the

interests of justice."   18 U.S.C. § 5032.   Because the district

court followed proper procedures and made findings with

substantial support in the record, its order should be affirmed.

                               VI.

          For the foregoing reasons, the order of the district

court granting the government's motion to proceed against A.R. as

an adult will be affirmed.
