United States v. NJB ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4381
NJB, a Male Juvenile,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-96-6)
Argued: October 28, 1996
Decided: January 14, 1997
Before NIEMEYER and MOTZ, Circuit Judges, and DOUMAR,
Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Niemeyer and Senior Judge Doumar joined.
_________________________________________________________________
COUNSEL
ARGUED: Martin Patrick Sheehan, SHEEHAN & NUGENT, Whee-
ling, West Virginia; James T. Kratovil, KRATOVIL LAW OFFICES,
Charles Town, West Virginia, for Appellant. Paul Thomas Camilletti,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee. ON BRIEF: William D. Wilmoth, United States Attorney,
Wheeling, West Virginia, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A juvenile defendant -- "NJB" -- appeals the district court's order
permitting the Government to prosecute him in federal court as an
adult. NJB maintains that the district court lacked jurisdiction to issue
its order because of two alleged deficiencies in the Government's cer-
tification of his case: the certification does not charge him with com-
mitting a violent felony, and does not state a substantial federal
interest in his case. Alternatively, NJB asserts that the district court
erred in concluding that his juvenile records were complete and that
he had previously been found guilty of an act that would constitute
a crime of violence if committed by an adult. The district court prop-
erly exercised jurisdiction in this case and did not err in any of its
related rulings. We therefore affirm.
I.
On February 29, 1996, the Government moved pursuant to 18
U.S.C. § 5032 (1994) to proceed against NJB in federal court as an
adult. On that same date, the Government filed a certification, as
required by § 5032, stating that the offense charged against NJB "is
a crime of violence that is a felony" and that"there is a substantial
federal interest in the offense to warrant the exercise of Federal juris-
diction." The Government subsequently filed a one-count information
charging that NJB killed David Brown in furtherance of a continuing
criminal enterprise in violation of 21 U.S.C. § 848(e)(1)(A) (1994).
NJB moved to dismiss the information, alleging that the district
court did not have subject matter jurisdiction over the action and that
the Government had not properly certified that his juvenile records
were complete. The district court held a hearing to determine whether
to transfer NJB to federal court and try him as an adult. The court
heard argument from the parties, and testimony from several wit-
nesses. The district court then issued a well-reasoned order, denying
NJB's motion to dismiss, and granting the Government's motion to
proceed against him as an adult.
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II.
Initially, NJB asserts that the district court lacked jurisdiction over
him. Federal jurisdiction over a juvenile offender is established under
18 U.S.C. § 5032, which provides that criminal proceedings against
minors may be initiated only on a certification from the Attorney
General of the United States. This responsibility has been delegated
to the United States Attorneys. See 28 C.F.R. § 0.57 (1996). The certi-
fication must state a "substantial Federal interest in the case" and one
of three circumstances: 1) the state juvenile court does not have, or
has refused, jurisdiction; or 2) the state does not have available ade-
quate programs for juveniles; or 3) "the offense charged is a crime of
violence that is a felony," or an enumerated drug or weapons offense.
18 U.S.C. § 5032 (first paragraph).
In this case, the United States Attorney for the Northern District of
West Virginia certified that NJB was charged with a violent felony,
specifically a violation of 21 U.S.C. § 848(e), and that there was a
substantial federal interest justifying federal prosecution of NJB's
case. We recently held judicially reviewable the Attorney General's
certification, including his findings of a crime of violence and of a
substantial federal interest. See United States v. Juvenile Male #1, 86
F.3d 1314, 1319-21 (4th Cir. 1996). Therefore, we turn to NJB's
arguments concerning the sufficiency of the certification.
A.
NJB first argues that the certification was insufficient because
§ 848(e) is not a "crime of violence." NJB maintains that § 848(e)
does not constitute a separate, violent offense, but is instead a penalty
enhancement for the non-violent offense created by 21 U.S.C.
§ 848(c). We review de novo this question of statutory interpretation.
See United States v. Hall, 972 F.2d 67, 69 (4th Cir. 1992).
Section 848(e)(1) provides:
(e) Death Penalty
(1) In addition to the other penalties set forth in this
section--
3
(A) any person engaging in or working in fur-
therance of a continuing criminal enterprise, or any
person engaging in an offense punishable under
section 841(b)(1)(A) of this title or section
960(b)(1) of this title who intentionally kills . . . an
individual . . . shall be sentenced to any term of
imprisonment, which shall not be less than 20
years, and which may be up to life imprisonment,
or may be sentenced to death; and
(B) any person, during the commission of, in
furtherance of, or while attempting to avoid appre-
hension, prosecution or service of a prison sen-
tence for, a felony violation of this subchapter or
subchapter II of this chapter who intentionally kills
. . . any Federal, State or local law enforcement
officer engaged in, or on account of, the perfor-
mance of such officer's official duties . . . shall be
sentenced to any term of imprisonment, which
shall not be less than 20 years, and which may be
up to life imprisonment, or may be sentenced to
death.
21 U.S.C. § 848(e)(1).
NJB asserts that because § 848(e)(1) applies"[i]n addition to other
penalties set forth in this section," § 848(e) must set forth a penalty
enhancement, not a separate crime. NJB also points to the title of the
section -- "Death Penalty" -- as proof that § 848(e)'s sole purpose
is to apply a new penalty to certain § 848(c)"continuing criminal
enterprise" ("CCE") violations.
We begin our analysis with the Supreme Court's decision in
Garrett v. United States, 471 U.S. 773 (1985). In Garrett the Supreme
Court considered whether § 848, as originally enacted (which at that
time only outlawed CCE violations and included none of the language
at issue in this case), created a substantive offense separate from its
predicate offenses, and whether a subsequent CCE prosecution vio-
lated the Double Jeopardy Clause. In holding that§ 848 was a sepa-
rate offense, Garrett directed that analysis of whether a statute creates
4
a separate offense is a question of statutory interpretation; a court
must discern the "legislative intent" based upon "[t]he language,
structure, and legislative history" of the statute. Garrett, 471 U.S. at
779.
The language, structure, and legislative history of§ 848(e)(1)
establish that it is a separate offense, not merely a penalty enhance-
ment. First, several other subsections of § 848 refer to § 848(e) as a
separate offense. For example, § 848(i) requires a separate sentencing
hearing if the government is seeking the death penalty and "the defen-
dant is found guilty of or pleads guilty to an offense under subsection
(e) of this section." 21 U.S.C. § 848(i) (emphasis added). Section
848(n) lists the aggravating factors to be considered in punishing "an
offense under subsection (e)." 21 U.S.C. § 848(n). See also 21 U.S.C.
§ 848(j) (describing the proof necessary for mitigating and aggravat-
ing factors "when a defendant is found guilty of or pleads guilty to
an offense under subsection (e) of this section"); 21 U.S.C. § 848(p)
(allowing life imprisonment if the death penalty is not imposed and
"[i]f a person is convicted for an offense under subsection (e) of this
section"). The fact that the statute itself cross-references to § 848(e)
as a distinct "offense" clearly expresses Congress' intent that § 848(e)
be a separate crime.
Second, § 848(e) cannot be a penalty enhancement that only
applies "in addition to the other penalties set forth in this section"
because, in fact, § 848(e) does not apply solely to § 848 offenses. Sec-
tion 848(e)(1)(A) also covers intentional killing while "engaging in an
offense punishable under section 841(b)(1)(A) of this title or section
960(b)(1) of this title." 21 U.S.C. § 848(e)(1)(A). Section 848(e)
(1)(B) applies even more broadly to the intentional killing of a law
enforcement officer pursuant to "a felony violation of this subchapter
or subchapter II of this chapter." 21 U.S.C.§ 848(e)(1)(B). The
express statutory language thus provides that the predicate offenses
which trigger a § 848(e) violation include statutory provisions outside
§ 848, and directly contradicts any argument that § 848(e) is a penalty
enhancement for a § 848(c) violation.
Third, in concluding that the congressional intent to create a sepa-
rate offense was "indisputable" in Garrett , 471 U.S. at 784, the
Supreme Court relied upon the fact that under the CCE statute "a sep-
5
arate penalty is set out, rather than a multiplier of the penalty estab-
lished for some other offense." Id. at 781. The same is true here. The
Garrett Court also relied on the fact that the statute before it was
"aimed at a special problem. [Its] language is designed to reach the
``top brass' in the drug rings, not the lieutenants and foot soldiers." Id.
at 781. Section 848(e) is similarly aimed at special and serious
crimes: killing a law-enforcement officer in connection with a drug
offense, or killing in furtherance of a continuing criminal enterprise,
large-scale drug distribution, or large-scale drug importation.
Finally, as the Fifth Circuit noted in United States v. Villarreal, 963
F.2d 725, 728 (5th Cir. 1992), the legislative history of § 848(e) "il-
lustrates a Congressional intent to establish a separate offense:"
Before 1988, § 848 embodied only a single statutory prohi-
bition -- it punished offenders who engaged in a continuing
criminal enterprise. After amendment by the Anti-Drug
Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4382, 4387-
88, § 848(e) had added a death penalty provision, not for
CCE offenses, but for an entirely new group of offenses --
intentional murders committed during certain specified felo-
nies.
Id. See also, United States v. Snow, 48 F.3d 198, 200 (6th Cir. 1995).
To counter this substantial evidence of legislative intent, NJB
offers two arguments. Neither is persuasive.
First, NJB points to several flaws in Congress' drafting of § 848(e)
and asserts that because the Supreme Court noted that the statute at
issue in Garrett was "carefully crafted," Garrett's analysis should not
be followed here. NJB misunderstands Garrett. In Garrett the
Supreme Court did not suggest that judges should base their conclu-
sions as to legislative intent upon a critical analysis of Congressional
drafting skills. Instead, Garrett established that courts must apply the
tools of statutory construction to determine whether Congress meant
to create a separate offense. Under that analysis, it is manifest that
§ 848(e) states a separate offense.
6
NJB's remaining contention is that such a holding would render the
statutory language "[i]n addition to the other penalties set forth in this
section" a nullity. This is so only under NJB's narrow construction of
this language. Garrett itself offers insight into an alternative reason
why Congress may have specified that § 848(e) applies "in addition
to other penalties." Garrett dealt with the question of whether a CCE
prosecution violated the Double Jeopardy Clause by punishing an
accused first for the predicate offenses, and again for the offenses
joined in the CCE prosecution. The Court found no Double Jeopardy
violation. Garrett, 471 U.S. at 786-95. One of the questions at issue
in Garrett was whether Congress meant to replace prosecutions of the
underlying predicate offenses with the CCE prosecution. Id. at 784-
86. Despite silence in the legislative history, the Supreme Court found
that Congress did not mean "to substitute the CCE offense for the
underlying predicate offenses;" instead, the Court concluded that a
CCE prosecution and punishment occurs "in addition to prosecution
for the predicate offenses." Id. at 785.
In light of this discussion in Garrett, it seems likely that, in using
the similar language on which NJB now relies, Congress hoped to
make absolutely clear that the punishment for a crime under § 848(e)
was in addition to, and did not replace, any other punishments. See
United States v. McCullah, 76 F.3d 1087, 1105 (10th Cir. 1996)
("Congress has clearly expressed its intention that the § 848(e) pun-
ishment be cumulative with any other applicable punishment, stating
in the statute that the § 848(e) penalties are``[i]n addition to the other
penalties set forth in this section.'"). As such, the language on which
NJB's argument hinges is not inconsistent with our construction of
the statute, but rather supports our holding.
In sum, because § 848(e) clearly sets forth a separate substantive
violent offense, the Government's certification of this fact did not
constitute error.
B.
NJB next claims that even if § 848(e) is a separate offense the Gov-
ernment's certification was deficient because it failed to state a "sub-
stantial Federal interest" in his prosecution as required under 18
U.S.C. § 5032 (first paragraph) (1994).
7
In United States v. Juvenile Male #1, 86 F.3d 1314, 1321 (4th Cir.
1996), the juvenile defendant was charged inter alia with violating
the federal carjacking statute, 18 U.S.C. § 2119 (1994). We looked to
"the legislative history of the carjacking statute," and the nature of the
crime at issue to discern whether there was a substantial federal inter-
est involved in Juvenile Male #1's case. Congress' decision to feder-
alize the crime of carjacking, the harshness of the penalties
prescribed, the "sense of urgency" in the debates and "[t]hat the cir-
cumstances of the carjacking and murder [at issue were] particularly
egregious" led us to conclude that "a substantial federal interest [was]
clearly present." Id. at 1321.
In this case, we need not independently search § 848(e)'s legisla-
tive history to determine whether a substantial federal interest war-
rants prosecution of NJB for violation of that statute because the
legislative history of the delinquency statute -- 18 U.S.C. § 5032 --
itself expressly includes "large-scale drug trafficking" as an example
of an offense that raises special federal concerns:
[T]he committee intends that a determination that there is a
"substantial Federal interest" be based on a finding that the
nature of the offense or the circumstances of the case give
rise to special Federal concerns. Examples of such cases
could include an assault on, or assassination of, a Federal
official, an aircraft hijacking, a kidnapping where State
boundaries are crossed, a major espionage or sabotage
offense, participation in large-scale drug trafficking, or sig-
nificant and willful destruction of property belonging to the
United States.
H.R. Rep. No. 98-1030, at 389 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3529 (emphasis added).
When an offense is listed among the examples in the legislative
history of § 5032, a court need not independently assess the factors
listed in Juvenile Male #1 to find a substantial Federal interest. Cf.
Juvenile Male #1, 86 F.3d at 1318 (quoting H.R.Rep. No. 98-1030,
at 389 (1984), reprinted in, 1984 U.S.C.A.A.N. 3182, 3529 and citing
United States v. Male Juvenile, 844 F. Supp. 280, 283-84 (E.D. Va.
1994) (relying upon the above quoted legislative history to hold that
8
there is no "substantial Federal interest" in an "ordinary bank rob-
bery")).
Accordingly, there was no deficiency in the Government's certifi-
cation to the district court. Section 848(e) is a violent felony and there
is a substantial Federal interest in prosecution of juveniles charged
with violating it.
III.
NJB next argues that the district court erred in concluding that it
had received complete and adequate juvenile records before conduct-
ing a transfer hearing, as required by 18 U.S.C.§ 5032 (tenth para-
graph). Section 5032 provides in pertinent part:
A juvenile shall not be transferred to adult prosecution . . .
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 (tenth paragraph). When the Government moved to
transfer NJB to adult jurisdiction, it filed a summary of his juvenile
history and copies of court records of numerous juvenile petitions
brought against him, and of three juvenile matters where the state
juvenile court had transferred NJB to adult jurisdiction for criminal
prosecution. However, the Government filed no certification stating
that NJB's juvenile records were complete, and NJB asserts that its
failure to do so constitutes a violation of § 5032.
The statute does require that "any prior juvenile court records" be
"received by the court." There is no question, therefore, that the
records before the district court must be complete. The question is
whether the Government is responsible for obtaining a certification
that the records are complete.
We note that there is no statutory basis for requiring a government
certification that the records are complete. Section 5032 only requires
9
certification if there are no records, or the records are "unavailable."
The statute's legislative history suggests that a good faith effort by a
prosecutor should be sufficient:
In many respects, determination of whether a young
offender is to be treated as a juvenile or an adult and of the
appropriate disposition of juveniles adjudicated delinquent
depends on the nature of the juvenile's prior record. Too
often, however, juvenile proceedings are undertaken without
the benefit of such information. This new paragraph stresses
that these records be obtained beforehand whenever possi-
ble. The Committee intends, however, that this new provi-
sion's requirements are to be understood in the context of
a standard of reasonableness.
H.R.Rep. No. 98-1030, at 391 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3531 (emphasis added).
Further, "most courts have read the records certification provision
to require only good faith efforts by the government to provide the
court with documentation of a juvenile's prior record." United States
v. Wong, 40 F.3d 1347, 1369 (2d Cir. 1994), cert. denied, 116 S. Ct.
190 (1995). See also United States v. Parker, 956 F.2d 169, 170 (8th
Cir. 1992).
We agree with the Second Circuit that a prosecutor should be held
to a good faith standard. NJB does not claim that the Government
held back records, or even that any of his records were missing. Thus,
in this case, the Government's certification that NJB's juvenile
records were complete was not necessary. This is not to say that a
prosecutor can fail to gather all of the juvenile's records, or selec-
tively collect records. We do not hold that the juvenile's records can
be incomplete. Rather, we hold that the Government need not certify
that these records are complete when there is not even an allegation
of prosecutorial bad faith or missing records.
IV.
Finally, NJB asserts that the district court improperly construed the
mandatory transfer provision of § 5032. Transfer to federal court is
10
mandatory for "a juvenile who is alleged to have committed [a felony
offense that involves the use or threat of force against another] after
his sixteenth birthday," if the juvenile "has previously been found
guilty of an act which if committed by an adult would have been" a
crime of violence. 18 U.S.C. § 5032 (paragraph four) (emphasis
added). The district court found that under United States v. Hairston,
71 F.3d 115, 118 (4th Cir. 1995) NJB's previous state court adjudica-
tion for felony escape constituted a crime of violence. NJB posits two
reasons why the court assertedly erred in so ruling.
A.
NJB first argues that there has been no showing of"guilt" as
required by § 5032. Under Maryland law, juvenile proceedings are
civil in nature. See In re Victor B., 646 A.2d 1012, 1014-15 (Md.
1994). The civil nature of Maryland's juvenile courts is statutorily
established: "[a]n adjudication of a child pursuant to this subtitle is
not a criminal conviction for any purpose and does not impose any
of the civil disabilities ordinarily imposed by a criminal conviction."
Md. Code Ann., Cts. & Jud. Proc. § 3-824(a)(1) (1995) (emphasis
added). NJB relies on the italicized language to argue that he was
never "found guilty" of a crime of violence as is required by § 5032
and is therefore not eligible for mandatory transfer.
The Ninth Circuit recently confronted a similar argument. In
United States v. David H, 29 F.3d 489, 492 (9th Cir. 1994), it held
that although an "[a]djudication of juvenile delinquency is not a con-
viction of a crime, but rather, a determination of a juvenile's status,"
an adjudication of delinquency can serve as a finding of guilt under
§ 5032. The court reasoned that because "Congress added the manda-
tory transfer provision to the Act for the very purpose of addressing
the problem of repeat juvenile offenders," it would make no sense to
exclude juvenile adjudications. Id. at 492-93. In contrast, NJB argues
that by using the word "guilty," Congress must have meant to include
a concept of mens rea. We find the reasoning of the Ninth Circuit
more persuasive.
Maryland's specification that juvenile adjudications do not consti-
tute criminal convictions is hardly unique. In fact,"in the early part
of this century . . . jurisdictions throughout the country began creating
11
separate systems of courts that followed their own sets of principles
for juvenile offenders. . . . In contrast to the adversarial nature of the
adult system, in these systems, criminal charges were not brought
against juvenile offenders." In re Victor B. , 646 A.2d at 1014. Numer-
ous states still consider juvenile proceedings civil in nature. See e.g.,
Fla. Stat. Ann. § 39.053(4) (West Supp. 1997); Haw. Rev. Stat. § 571-
1 (1993); Ky. Rev. Stat. Ann. § 635.040 (Michie 1990); Minn. Stat.
Ann. § 260.211 (West 1992); Miss. Code Ann.§ 43-21-561(5)
(1993); Mo. Rev. Stat. § 211.271(1) (1994); Neb. Rev. Stat. § 43-280(1993); N.J. Stat. Ann. § 2A:4A-48 (West 1987); Okla. Stat. tit. 10,
§ 7307-1.7(A) (Supp. 1995); Vt. Stat. Ann. tit. 33, § 5535(a) (1991);
W.Va. Code § 49-7-3 (1996); Wis. Stat. § 48-35(a)(1) (1992). The
sheer number of states that do not hold juveniles criminally "guilty"
for crimes renders NJB's construction of § 5032 unworkable. It seems
very unlikely that Congress would create a special statute permitting
the Government to treat juvenile offenders as adults in federal court
and then except from the statute's reach a number of juvenile offend-
ers solely because state law denominates their prior delinquency
determinations as "adjudications" rather than"convictions." NJB's
construction of the statute leads to an anomalous result: juvenile
offenders accused of the same crime, and with identical previous
criminal records, would be treated differently under federal law
depending on whether the juvenile's previous crimes occurred in a
state that "convicts" juvenile offenders, or one that "adjudicates" them
delinquent. That could not have been Congress' intent.
Further, there is no indication that Congress sought to establish a
large exception to § 5032 by requiring that prior offenses be accom-
panied by mens rea. To the contrary, the legislative history suggests
that Congress was primarily concerned with "the high percentage of
violent crime committed by juveniles who have records of criminal
activity, and growing recognition that for some of these juveniles, the
rehabilitation theory upon which the current juvenile justice system
is based is not always adequate to protect the public interest."
H.R.Rep. No. 98-1030, at 389 (1984), reprinted in 1984
U.S.C.A.A.N. 3182, 3529. In the House Report, Congress refers to
"records of criminal activity" and never hints at a mens rea require-
ment. Moreover, the Report recognizes that § 5032 rejects the non-
criminal approach taken by Maryland and other states for repeat juve-
nile offenders. It would indeed be ironic to permit this very non-
12
criminal approach to exempt all juvenile offenders in these states
from the mandatory reach of § 5032.
For all of these reasons, we believe the district court was correct
that a Maryland juvenile adjudication of escape suffices as a finding
of "guilty" of this crime under § 5032.
B.
NJB next attempts to distinguish Hairston, in which we held that
a felony escape from custody is a crime of violence because it "in-
volves conduct that presents a serious potential risk of physical injury
to another." United States v. Hairston, 71 F.3d 115, 117 (quoting 18
U.S.C. § 924(e)(2)(B)(ii) (1994)). NJB argues that Maryland has two
distinct types of felony escape, one which includes assault, and one
which does not, and because he was not adjudicated under the "vio-
lent" escape statute he has not committed a crime of violence.
NJB bases his theory that Maryland has two distinct types of felony
escape on the fact that the State punishes an escape without an assault
more leniently than an escape with an assault. See Md. Ann. Code art.
27, § 139(a)(2)(ii) (Supp. 1995). Maryland's escape statute does not
help NJB avoid the clear holding of Hairston. It is doubtful that NJB
is correct that Maryland actually provides for two distinct forms of
escape; it appears that § 139(a)(2)(ii) only creates a lesser penalty for
escape without assault, and does not create a separate offense.
Moreover, the important issue for the crime of violence analysis is
the potential for violence, not whether violence actually occurred.
Hairston held that escape constituted a crime of violence under a
North Carolina statute which, like the portion of the Maryland statute
NJB relies on, did not include assault or physical violence among its
elements. Hairston, 71 F.3d at 117. Therefore, NJB's argument that
escape is not a violent offense is squarely foreclosed by Hairston.*
_________________________________________________________________
*NJB also argues that the district court erred in its alternative holding
that NJB be transferred pursuant to § 5032's discretionary transfer provi-
sions. 18 U.S.C. § 5032 (fourth and fifth paragraphs). Because we hold
that the district court was correct that NJB be mandatorily transferred, we
do not reach the court's alternative holding.
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V.
For the forgoing reasons the order of the district court permitting
the Government to prosecute NJB in federal court as an adult is
hereby
AFFIRMED.
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