United States v. D. D. B.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2563
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
D.D.B.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cr-00131-WTL-TAB-1 — Jane Magnus-Stinson, Chief Judge.
____________________
ARGUED FEBRUARY 16, 2018 — DECIDED SEPTEMBER 11, 2018
____________________
Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. The government wishes to try
D.D.B. as an adult for robbing a pharmacy. In order to do so,
however, it must prove that he had a prior conviction for a
violent offense. We must decide, therefore, whether at-
tempted robbery under Indiana law is such an offense—a
question that appears cut and dried on its face, but actually
poses some challenges.
2 No. 17-2563
I.
D.D.B., along with an adult accomplice, robbed a phar-
macy and was quickly apprehended by the police. Because he
was under eighteen years of age at the time, the government
charged him with committing acts of juvenile delinquency
that would be crimes if committed by an adult—robbery un-
der 18 U.S.C. §1951(a)—and carrying, using, and brandishing
a firearm during a robbery under 18 U.S.C. § 924(c)(1)(A)(ii).
Soon after, the government moved to transfer D.D.B. to
adult proceedings. The statute governing such a transfer, 18
U.S.C. § 5032, mandates a transfer to adult proceedings if all
three of the following conditions are met: (1) the juvenile com-
mitted the act underlying the charged offense after his six-
teenth birthday; (2) the charged offense is a felony that “has
as an element thereof the use, attempted use, or threatened
use of physical force against the person of another”; and (3)
the juvenile has previously been found guilty of a crime that
“has as an element thereof the use, attempted use, or threat-
ened use of physical force against the person of another.”
18 U.S.C. § 5032. 1; see also United States v. M.C.E., 232 F.3d
1252, 1255 (9th Cir. 2000); Impounded, 117 F.3d 730, 731 (3d Cir.
1997).
The government originally alleged that D.D.B. had two
prior juvenile delinquency adjudications that would serve as
1 Section 5032 also contains what has been called in other contexts, a “re-
sidual clause,” which requires mandatory transfer where a juvenile’s
predicate crime involves a “substantial risk” that physical force may be
used in committing the offense. Id. The government does not rely on this
clause so we need not delve into the current questions about residual
clauses and their constitutionality. See, e.g., Sessions v. Dimaya, 138 S. Ct.
1204 (2018); Johnson v. United States, 135 S. Ct. 2551 (2015).
No. 17-2563 3
predicates for the mandatory transfer under § 5032. The first
was attempted robbery in Indiana, a Class B felony. The sec-
ond was burglary, also a Class B felony in Indiana. In a sup-
plemental motion the government added a third predicate of-
fense, conspiracy to commit robbery. The district court ad-
dressed only the attempted robbery offense in its opinion and
concluded that this offense satisfied the grounds for manda-
tory transfer under § 5032—that is, that it was a crime of vio-
lence. R. 144 at 9. Because this finding on the attempted rob-
bery offense was sufficient grounds for the mandatory trans-
fer under 18 U.S.C. § 5032, the district court did not need to
reach the issue of whether D.D.B.’s burglary or conspiracy to
commit robbery offenses also satisfied § 5032. D.D.B. contests
in this appeal, therefore, only the prior Indiana attempted
robbery conviction, claiming that it was not a crime of vio-
lence. The government maintains that it was. We must there-
fore decide if Indiana attempted robbery is a crime of vio-
lence, or more technically, “has as an element thereof the use,
attempted use, or threatened use of physical force against the
person of another.”
The district court held that it is indeed a crime of violence.
Generally, this court reviews a district court’s transfer deci-
sion under § 5032 for an abuse of discretion. United States v.
Woods, 827 F.3d 712, 717 (7th Cir.), cert. denied, 137 S. Ct. 456
(2016). However, we review de novo whether a prior offense
constitutes a crime of violence. See, e.g., United States v. Camp-
bell, 865 F.3d 853, 855 (7th Cir.), cert. denied, 138 S. Ct. 347
(2017) (reviewing de novo the district court’s decision as to
whether bank robbery qualifies as a crime of violence).
4 No. 17-2563
A. Was the appeal timely filed?
Before deciding whether D.D.B.’s predicate crime of at-
tempted robbery qualifies as a crime of violence, we must ad-
dress one jurisdictional issue. The government claims that
D.D.B. failed to file his appeal of the transfer order within the
fourteen days allowed to file a notice of appeal in a criminal
matter. Fed. R. App. P. 4(b). D.D.B. claims that he is appealing
from a juvenile adjudication which is a civil matter and thus
subject to a sixty-day filing time limit. Id. at 4(a). The differ-
ence matters because D.D.B. filed his appeal twenty-seven
days after the entry of the transfer order.
Federal agents took D.D.B. into custody on May 15, 2017,
and on that same day the government filed a motion for man-
datory transfer for criminal prosecution. The judge granted
the motion for a transfer to adult proceedings on July 5, 2017,
and six days later, on July 11, 2017, the government indicted
D.D.B., charging him as an adult. At some point, the exact
time of which is unclear, the docket for D.D.B.’s juvenile ad-
judication merged with the docket for the criminal case.
D.D.B’s counsel did not learn of the merger until August 1,
2017, when the court notified counsel that the notice of appeal
that he had filed on July 28, 2017, under the juvenile case num-
ber, had to be refiled under the new criminal case number be-
cause of the merger.
We find that the appeal from a § 5032 transfer proceeding
determination is a transfer from a civil proceeding to a crimi-
nal proceeding and thus the timeline for civil proceedings ap-
plies. Although juvenile delinquency proceedings are quasi-
criminal in some aspects, they are still largely civil in nature.
See, e.g., Application of Gault, 387 U.S. 1, 49 (1967) (finding that
No. 17-2563 5
a juvenile has right to notice of charges, to counsel, to confron-
tation and cross-examination of witnesses, and to privilege
against self-incrimination, despite the “civil” label of the pro-
ceedings). All courts to have considered the issue have de-
clared that a transfer hearing under § 5032 is a civil proceed-
ing, as the outcome will determine the juvenile’s status rather
than her guilt or innocence. See e.g. United States v. Juvenile
Male, 554 F.3d 456, 467 (4th Cir. 2009) (“a transfer proceeding
is civil in nature. As such, its purpose is not to incriminate, but
to select the proper forum for trial.”); United States v. Doe, 49
F.3d 859, 868 (2d Cir. 1995) (“A transfer hearing under the [the
juvenile delinquency act] is not a criminal proceeding de-
signed to explore the defendant's guilt or innocence,” and
therefore the clear-and-convincing-evidence standard is not
appropriate.); United States v. T.F.F., 55 F.3d 1118, 1122 (6th
Cir. 1995) (“The clear and convincing standard is inconsistent
with the civil nature of the transfer hearing.”); United States v.
A.R., 38 F.3d 699, 703 (3d Cir. 1994) (noting that a transfer pro-
ceeding is civil in nature because it results only in a decision
about the status of the individual and not guilt or innocence);
United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992) (“A
transfer hearing is not a criminal proceeding which results in
an adjudication of guilt or innocence, but a civil proceeding
which results in an adjudication of status.”). The title and text
of the statute itself suggest this result. Section 5032 allows for
or mandates a “transfer for criminal prosecution” from “delin-
quency proceedings in district court.” 18 U.S.C. § 5032 (em-
phasis ours). The statute further instructs, “no criminal pros-
ecution shall be instituted for the alleged act of juvenile delin-
quency except as provided below.” Id.
The government correctly does not contest that juvenile
proceedings are civil in nature; it argues instead that the civil
6 No. 17-2563
proceeding ended the moment D.D.B. was transferred for
criminal prosecution, or at least when he was indicted and the
case docketed under a criminal case number. (It is unclear
which of these is the exact point of demarcation to which the
government refers—the indictment or the moment when the
clerk docketed the case under a criminal cause number). The
government concludes, therefore, that D.D.B.’s time to appeal
depends on his current status as a criminal defendant rather
than the nature of the proceeding from which he is appealing.
This cannot be so. The government claims that because it was
successful in its transfer proceeding, D.D.B. had but fourteen
days to appeal. Under the defendant’s theory, if D.D.B. had
prevailed in the § 5032 proceeding and the court had deemed
him a delinquent rather than an adult criminal, however, the
case would have remained a civil case and the time for appeal
would have been sixty days. It simply cannot be that the time
for appeal from the same proceeding is sixty days if the juve-
nile wins and fourteen days if he loses. Time limitations for
filing of an appeal cannot depend on which party prevails.
Moreover, what would have happened if the government
had waited 15 days to file the indictment, or 60 days or 120
days (perhaps it was trying to get D.D.B. or his co-defendant
to cooperate or was gathering better evidence)? If the govern-
ment had waited fifteen days after the district court’s order to
file the indictment, then the matter would have remained a
civil matter until day fifteen, and by the time it became a crim-
inal matter it would be too late for D.D.B. to file an appeal
from the transfer decision within the fourteen-day limit. The
government cannot control when to turn the matter from civil
to criminal. If it could, the government could manipulate the
indictment and always file at least fifteen days after the deci-
sion on the motion to transfer in order to lull the defendant
No. 17-2563 7
into thinking he had more time, and then shut the defendant
out of the possibility of an appeal. And if the event that
changes the deadline for filing from sixty days to fifteen days
is the date upon which the clerk of the court merges the juve-
nile docket into the criminal docket, then this would render
the clerk the arbiter of the court’s jurisdiction—a strange re-
sult indeed.
But we need not wrestle with these hypothetical possibili-
ties. A transfer proceeding is a civil proceeding for most in-
tents and purposes, and therefore the appeal from it is a civil
appeal and may be filed within the sixty-day timeframe for
civil appeals. We can turn our attention instead to whether
attempted robbery in Indiana is a crime of violence.
B. Is attempted robbery under Indiana law a violent crime?
We begin first with a short explanation of what it means
for a crime to be, what we are calling as a shorthand, “a crime
of violence.” Sprinkled throughout criminal law are various
statutes and Sentencing Guidelines that increase penalties or
consequences based on a defendant’s past crimes. See, e.g.,
18 U.S.C. § 16(a); 18 U.S.C. § 924(e)(2)(B)(i); U.S.S.G.
§ 4B1.2(a)(1). Many of these statutes increase penalties and
consequences if the prior crime is one of violence or a violent
felony. For example, the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), increases the mandatory minimum sen-
tence from ten to fifteen years for certain federal defendants
who have three prior convictions for a crime that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.”18 U.S.C. § 924(e). The
statute at issue here—18 U.S.C. § 5032—has virtually the same
language. We refer to all of these as “crimes of violence” as a
8 No. 17-2563
shorthand even though those words never appear in the stat-
ute. Our court has explained that the language within each of
these similar statutes should be interpreted the same way.
United States v. Edwards, 836 F.3d 831, 834 n.2 (7th Cir. 2016)
(“[W]e refer to cases dealing with the ACCA and the career
offender guideline provision interchangeably.”); Welch v.
United States, 604 F.3d 408, 433 (7th Cir. 2010) (stating that a
violent felony under the Armed Career Criminal Act should
be interpreted identically to a “crime of violence” in the Sen-
tencing Guidelines).
At first blush, it seems like the answer to the question “is
Indiana attempted robbery a violent crime?” has been une-
quivocally answered by two recent decisions from this court,
United States v. Duncan, 833 F.3d 751 (7th Cir. 2016), and Hill
v. United States, 877 F.3d 717 (7th Cir. 2017). In Duncan, we
held that robbery under Indiana law qualifies as a violent fel-
ony. Duncan, 833 F.3d at 758.2 And in Hill we held that
“[w]hen a substantive offense would be a violent felony un-
der § 924(e) and similar statutes, an attempt to commit that
offense also is a violent felony.” Hill, 877 F.3d at 719. The Hill
decision set into law what Judge Hamilton had argued in an
earlier concurrence: “As a matter of statutory interpretation,
an attempt to commit a crime should be treated as an attempt
2 In Duncan, we held that Indiana robbery was a violent felony under the
Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(2)(B)(i), which de-
fines “violent felony” as “any crime punishable by imprisonment for a
term exceeding one year, or any act of juvenile delinquency involving the
use or carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an adult, that–
(i) has as an element the use, attempted use, or threatened use of phys-
ical force against the person of another.” 18 U.S.C.A. § 924(e)(2)(B)(i).
No. 17-2563 9
to carry out acts that satisfy each element of the completed crime.”
Morris v. United States, 827 F.3d 696, 699 (7th Cir. 2016) (Ham-
ilton, J., concurring) (emphasis in original).
And so it seems Hill would tie this all up neatly in a bow
and make for a very concise opinion. There is but one snag:
the conclusion in Hill is premised on the notion that a “con-
viction of attempt requires proof of intent to commit all ele-
ments of the completed crime.” Hill, 877 F.3d at 719 (emphasis
ours), and as we will see in a moment, Indiana’s attempted
robbery statute is anomalous in that it does not contain an in-
tent requirement. In other words, the reasoning in Hill de-
pends on the premise that the defendant had the proper in-
tent:
Given the statutory specification that an ele-
ment of attempted force operates the same as an
element of completed force, and the rule that
conviction of attempt requires proof of intent to com-
mit all elements of the completed crime, we now …
adopt Judge Hamilton’s analysis as the law of
the circuit. When a substantive offense would
be a violent felony under § 924(e) and similar
statutes, an attempt to commit that offense also
is a violent felony.
Id. at 719 (emphasis ours). We note that the holding of Hill
starts with two particular “givens” or premises. The first one
(which is not at issue in this case) is that an element of at-
tempted force operates the same as an element of completed
force. The second premise, and the one that is critical to this
case, is that “conviction of attempt requires proof of intent to com-
mit all elements of the completed crime” Id.
10 No. 17-2563
In Morris, Judge Hamilton hung his hat on this same intent
hook when reasoning in his concurrence that “[a]ttempt re-
quires intent to commit the completed crime plus a substantial
step toward its completion.” Morris, 827 F.3d at 698 (Hamil-
ton, J. concurring) (emphasis ours). And, as we explained in
Hill:
Judge Hamilton recognized that the crime of at-
tempt requires only a substantial step toward
completion, but he thought it sufficient that one
must intend to commit every element of the
completed crime in order to be guilty of at-
tempt. When the intent element of the attempt
offense includes intent to commit violence
against the person of another, Judge Hamilton
concluded, it makes sense to say that the at-
tempt crime itself includes violence as an ele-
ment.
Hill, 877 F.3d at 719 (emphasis in original). In other words, the
premise of both Judge Hamilton’s concurrence in Morris and
the panel decision in Hill is that the attempt law contains an
intent provision because “one must intend to commit every el-
ement of the completed crime in order to be guilty of at-
tempt.” Id. (emphasis in original).
In most criminal attempt statutes this premise is true—
that is, the statute requires proof of intent to commit every
element of the completed crime. For example, Illinois’ attempt
statute, which was at issue in Hill, states, “A person commits
the offense of attempt when, with intent to commit a specific of-
fense, he or she does any act that constitutes a substantial step
toward the commission of that offense.” 720 ILCS 5/8-4 (em-
phasis added). The crime of attempted robbery in Illinois thus
No. 17-2563 11
requires proof of intent to carry out all of the elements of the
crime of robbery, including the element of “use of force or by
threatening the imminent use of force.” 720 ILCS 5/18-1(a).
Indiana, however, is anomalous. That State’s definition of
attempted robbery does not require intent. Indiana’s at-
tempted robbery definition arises from a reading of the rob-
bery and attempt statute together. They state as follows:
Ind. Code § 35-42-5-1. Robbery.
a person who knowingly or intentionally takes
property from another person or from the pres-
ence of another person:
(1) by using or threatening the use of force on
any person; or
(2) by putting any person in fear;
commits robbery …
Ind. Code § 35-41-5-1(a). Attempt
A person attempts to commit a crime when, act-
ing with the culpability required for commis-
sion of the crime, the person engages in conduct
that constitutes a substantial step toward com-
mission of the crime.
The Indiana Supreme Court has been clear that the Indi-
ana attempt law does not require the government to show in-
tent (other than for murder), but rather only that a defendant
took a substantial step toward commission of the crime. Riche-
son v. State, 704 N.E.2d 1008, 1010 (Ind. 1998). In other words,
the Indiana “statutes defining attempt and robbery do not re-
quire the State to prove that the defendant intended to commit
12 No. 17-2563
robbery.” Henderson v. State, 825 N.E.2d 983, 987 (Ind. Ct. App.
2005).
One must commit the crime only with “the culpability re-
quired for commission of the crime.” Ind. Code § 35-41-5-1. In
the case of robbery, the culpability required for the commis-
sion of the crime would be “knowingly or intentionally.” Ind.
Code § 35-42-5-1 (emphasis ours). Indiana describes the dif-
ference between “intentional” and “knowing” as follows: In
Indiana, “a person engages in conduct ‘intentionally’ if, when
he engages in the conduct, it is his conscious objective to do
so.” Ind. Code § 35-41-2-2(a). “A person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware
of a high probability that he is doing so.” Ind. Code § 35-41-2-
2(b). Moreover, the “substantial step” of which the Indiana
Attempt law speaks must be significant; mere preparation is
not enough. Collier v. State, 846 N.E.2d 340, 344 (Ind. Ct. App.
2006). And so for example, it was not enough to constitute
substantial steps when a defendant drove to the place of his
estranged wife’s employment and parked outside the en-
trance with a box cutter and an ice pick, notwithstanding the
fact that he had just told his friend: “Tonight’s the night. I’m
gonna do it … I’m gonna stab her in the effin’ heart twice. I’m
gonna cut her effin’ throat.” Id. at 342–43. The court concluded
that because the police found him in his trunk passed out
from alcohol, his prior steps were not substantial steps toward
the act, but rather mere preparation. Id. at 349.
To understand why the lack of intent in the Indiana at-
tempted robbery statute is important, we need to backtrack a
bit and discuss what is essential to the understanding of a
predicate crime. To determine whether a prior crime is a
crime of violence, we look at the crime categorically. That is,
No. 17-2563 13
we look only at the elements of the offense and not the facts
underlying the conviction. Descamps v. United States, 570 U.S.
254, 261 (2013). “The categorical approach serves ‘practical’
purposes: It promotes judicial and administrative efficiency
by precluding the relitigation of past convictions in minitrials
conducted long after the fact.” Moncrieffe v. Holder, 569 U.S.
184, 200–01 (2013). “We therefore look only at statutory defi-
nitions—i.e., the elements—of a defendant’s prior offenses,
and not to the particular facts underlying those convictions.”
Descamps, 570 U.S. at 261. “Elements are the constituent parts
of a crime’s legal definition—the things the prosecution must
prove to sustain a conviction. At a trial, they are what the jury
must find beyond a reasonable doubt to convict the defend-
ant; and at a plea hearing, they are what the defendant neces-
sarily admits when he pleads guilty.” Mathis v. United States,
136 S. Ct. 2243, 2248 (2016) (internal citations omitted). Any-
thing that is not an element is extraneous to the crime’s legal
requirements. See id. In other words, no jury (or judge acting
as a finder of fact) ever found that D.D.B. had any intent to
commit any of the elements of robbery. As is the procedure
when looking at predicate crimes categorically, the only evi-
dence we have of D.D.B.’s prior crimes is the docket entries
for the two prior cases in Marion County, Indiana. Therefore,
the only fact we consider about the prior crime is the fact of
conviction (or, in this case, the finding of juvenile delin-
quency) and the elements of the crime. We cannot consider
any of the facts, details, or inferences about those underlying
crimes. D.D.B.’s prior adjudication for attempted robbery re-
quired only a finding of the following elements:
(1) engaging in conduct that constitutes a sub-
stantial step toward;
14 No. 17-2563
(2) the knowing or intentional;
(3) taking of property from the person or pres-
ence of another;
(4) by using or threatening the use of force on
another person or putting another person in
fear.
Stokes v. State, 922 N.E.2d 758, 764 (Ind. Ct. App. 2010). See
also, Ind. Pattern Jury Instruction (criminal) No. 2.0100. Intent
is not an element and so a conviction by itself does not estab-
lish that the defendant had intent. He could simply know-
ingly take a substantial step toward the taking of property
through force or fear. One would have to look behind the con-
viction to the underlying facts to know if he had the intent to
commit the crime, and this we cannot do.
Under the holding of Apprendi, any fact that increases the
penalty for a crime beyond the prescribed statutory maxi-
mum must be submitted to a jury and proved beyond a rea-
sonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). 3 Because intent is not an element of attempted robbery
in Indiana, no jury or finder of fact has ever found that D.D.B.
had any intent to use force, threaten to use force on another
person, or put another person in fear. As a point of compari-
son, a person who has been convicted of attempted robbery
in Illinois has necessarily been found by a jury (or judge acting
as trier of fact) to have had an intent to use force, threaten to
3 Apprendi excludes from this rule “the fact of a prior conviction.” In this
case, neither party contests the fact of D.D.B.’s prior conviction for at-
tempted robbery in Indiana. The only issue is what that crime entails, that
is, whether it necessarily includes an intent to commit violence in a way
that would qualify it as a violent crime under 18 U.S.C. § 5032.
No. 17-2563 15
use force on another person, or put another person in fear.
This is because “[p]roof of specific intent to rob” is an essential
element of the crime of attempted robbery under Illinois law.
People v. Turner, 246 N.E.2d 817, 820 (1969); People v. Hawkins,
203 N.E.2d 761, 763 (1964). Therefore, the defendant must
have intended to commit each element of the crime. This
makes D.D.B.’s attempted robbery conviction in Indiana sig-
nificantly different than, for example, Morris’ attempted rob-
bery conviction in Illinois, and takes this case out of the line
of reasoning of Morris and Hill. We simply cannot say that the
defendant intended to commit every element of the completed
crime just because he was found to be guilty of attempted rob-
bery in Indiana. We cannot say anything about the defend-
ant’s intent, because it was not part of the jury’s finding in the
predicate crime.
One way to view the reasoning in Hill is to say that under
the definition of attempted robbery in Illinois, once a person
intends to attempt to commit robbery, that person has made
a decision that she is “all in” on all aspects of the crime, in-
cluding the violence. “Even though the substantial step(s)
may have fallen short of actual or threatened physical force,
the criminal has, by definition, attempted to use or threaten
physical force because he has attempted to commit a crime
that would be violent if completed.” Morris, 827 F.3d at 698
(Hamilton, J., concurring). We can logically say, therefore,
that the “attempt to commit the crime necessarily includes an
attempt to use or to threaten use of physical force against the
person or property of another.” Id. at 699. But we cannot say
the same about the person who is attempting robbery in Indi-
ana. We do not know what the Indiana robber’s intent was if
16 No. 17-2563
the crime has been interrupted and has merely been at-
tempted, but not completed, as a conviction for attempt does
not require proof of intent.
The district court erred by simply applying the rationale
of Duncan and Hill—that any attempted violent felony is itself
a violent felony—to the crime of attempted robbery in Indi-
ana. The district court failed to consider the import of intent
to this analysis and the lack of an intent requirement in Indi-
ana’s crime of attempted robbery.
In sum, because the crime of attempted robbery in Indiana
does not require a finding of intent, the reasoning of Hill does
not apply. No finder-of-fact has found that D.D.B. had an in-
tent to use, attempt to use, or threatened the use of physical
force against the person of another. 18 U.S.C. § 5032. D.D.B.
filed his appeal in a timely manner. Of course, on remand, the
government is free to raise the other two predicate crimes of
burglary and conspiracy to commit robbery again as it has
preserved those issues by raising them with the district court.
The judgment of the district court is VACATED and the case
is remanded for further proceedings consistent with this de-
cision.