United States v. Sealed Juvenile Male (4)

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3311
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SEALED DEFENDANT JUVENILE MALE (4),
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:15-mj-748 — William T. Lawrence, Judge.
____________________
ARGUED MARCH 28, 2017 — DECIDED MAY 2, 2017
____________________
Before FLAUM, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Three juveniles—including M.G.,
who is the defendant-appellant here—and one adult alleged-
ly robbed an Indianapolis CVS pharmacy at gunpoint on Oc-
tober 14, 2015. They were charged with Hobbs Act Robbery,
18 U.S.C. § 1951(a), and possession of a firearm during that
2 No. 16-3311
robbery, 18 U.S.C. § 924(c). 1 The government sought to trans-
fer the juveniles’ cases for adult prosecution. See 18 U.S.C.
§ 5032.
Under 18 U.S.C. § 5032, a juvenile’s case can be trans-
ferred for adult prosecution if certain steps are followed. See
United States v. Jarrett, 133 F.3d 519, 535–36 (7th Cir. 1998).
One of those steps requires the district court to conclude that
the transfer would be “in the interest of justice.” 18 U.S.C.
§ 5032. To make that determination, the statute instructs the
court to make findings on the following factors:
1. the age and social background of the juve-
nile;
2. the nature of the alleged offense;
3. the extent and nature of the juvenile’s prior
delinquency record;
4. the juvenile’s present intellectual develop-
ment and psychological maturity;
5. the nature of past treatment efforts and the
juvenile’s response to such efforts;
6. the availability of programs designed to
treat the juvenile’s behavioral problems.
18 U.S.C. § 5032 (numbering added).
The government moved to have the juveniles examined
by government psychologists to gather information on four
of these factors. The juveniles objected to that motion, argu-
ing that the psychological examinations—which would be
conducted without their counsel present—would violate
1The adult defendant, Anthony Jackson, was also charged with posses-
sion of a firearm while being a fugitive from justice, 18 U.S.C. § 922(g)(2).
No. 16-3311 3
their Fifth and Sixth Amendment rights. The magistrate
judge granted the government’s motion and ordered the ju-
veniles to submit to psychological examinations, holding
that the Fifth and Sixth Amendments do not apply in this
context. She further ordered that “[t]he examinations may be
conducted without the presence of defense counsel” and that
the psychologists conducting the examinations “shall not
talk to any of Defendants about the specific allegations con-
tained in the charges against them in this case.” (R. 134 at 8.)
The district court agreed with the magistrate judge’s de-
cision rejecting the juveniles’ arguments. M.G. then filed this
interlocutory appeal, again arguing that the psychological
examination would violate his constitutional rights. He
makes this argument despite the rejection of similar argu-
ments by at least three of our sister circuits. See United States
v. Juvenile Male, 554 F.3d 456 (4th Cir. 2009); United States v.
Mitchell H., 182 F.3d 1034 (9th Cir. 1999); United States v. A.R.,
38 F.3d 699 (3d Cir. 1994). We, however, have not yet decided
this question. And because we conclude that we don’t have
jurisdiction to hear this interlocutory appeal, we don’t ad-
dress the merits of this argument today.
In most instances, we have jurisdiction over appeals only
from final decisions of the district courts. 28 U.S.C. § 1291.
“Criminal defendants, like others, must ordinarily wait for a
final judgment before they may bring an appeal.” United
States v. Sinovel Wind Grp. Co., Ltd., 794 F.3d 787, 790 (7th Cir.
2015). A final decision is “one which ends the litigation on
the merits and leaves nothing for the court to do but execute
the judgment.” Gelboim v. Bank of Am. Corp., 135 S. Ct. 897,
902 (2015) (quoting Catlin v. United States, 324 U.S. 229, 233
4 No. 16-3311
(1945)). Thus, the “core application” of our jurisdiction un-
der § 1291 is “to rulings that terminate an action.” Id.
But that is not the full extent of our jurisdiction. There
does exist a “small class” of nonfinal orders that “finally de-
termine claims of right separable from, and collateral to,
rights asserted in the action, too important to be denied re-
view and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is
adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949). These are known as “collateral orders,” and
they are immediately appealable if three elements are satis-
fied: the nonfinal order must “(1) be conclusive on the issue
presented; (2) resolve an important question separate from
the merits of the underlying action; and (3) be ‘effectively
unreviewable’ on an appeal from the final judgment of the
underlying action.” Doe v. Vill. Of Deerfield, 819 F.3d 372, 375
(7th Cir. 2016) (quoting Mohawk Indus., Inc. v. Carpenter, 558
U.S. 100, 106 (2009)). M.G. argues that the district court’s or-
der satisfies all three elements.
Had M.G. waited to appeal until after the district court
had issued an order granting the government’s motion to
transfer under 18 U.S.C. § 5032, then we would be able to
consider the merits of his argument now. See United States v.
J.J.K., 76 F.3d 870, 871–72 (7th Cir. 1996) (holding that a trans-
fer order issued under 18 U.S.C. § 5032 is an appealable col-
lateral order). But M.G. seeks our review at an earlier stage
in the transfer process: he argues that the district court’s or-
der requiring him to submit to the government psycholo-
gist’s examination—which would provide information that
the court would later use to determine whether to grant the
No. 16-3311 5
transfer order—should also be immediately appealable. We
disagree.
The collateral-order doctrine is an intentionally narrow
exception to the final judgment rule and applies only to a
“small category” of decisions. Swint v. Chambers Cty.
Comm’n, 514 U.S. 35, 42 (1995). “The doctrine’s modest scope
reflects a ‘healthy respect’ for the virtues of the final-
judgment rule.” Abelesz v. OTP Bank, 692 F.3d 638, 649 (7th
Cir. 2012) (quoting Mohawk Indus., 558 U.S. at 106). When de-
ciding whether to extend the doctrine, we view the asserted
interest in broad terms: “[t]he justification for immediate ap-
peal … must be based on the entire category of similar cases
rather than the potential benefits in the particular case.” Id.;
see also Mohawk Indus., 558 U.S. at 108 (“The crucial question
… is not whether an interest is important in the abstract; it is
whether deferring review until final judgment so imperils
the interest as to justify the cost of allowing immediate ap-
peal of the entire class of relevant orders.”). “As long as the
class of claims, taken as a whole, can be adequately vindicat-
ed by other means, the chance that the litigation at hand
might be speeded, or a particular injustice averted, does not
provide a basis for jurisdiction under § 1291.” Abelesz, 692
F.3d at 649 (quoting Mohawk Indus., 558 U.S. at 107).
Arguments to expand the collateral-order exception to a
new class of orders typically fail at the third step in our
analysis, which asks whether the class of orders would be
“effectively unreviewable” at a later stage in the proceedings
if we did not permit review immediately. Herx v. Diocese of
Fort Wayne-South Bend, Inc., 772 F.3d 1085, 1090 (7th Cir.
2014). In this context, “effectively unreviewable” means
“something more than that hardship will result from delay
6 No. 16-3311
or that the course of litigation will be changed without an
appeal.” United States v. Segal, 432 F.3d 767, 775 (7th Cir.
2005) (quoting United States v. Michelle’s Lounge, 39 F.3d 684,
693 (7th Cir. 1994), abrogated on other grounds by Kaley v. Unit-
ed States, 134 S. Ct. 1090 (2014)). Instead, an order is “effec-
tively unreviewable” only when it involves “an asserted
right the legal and practical value of which would be de-
stroyed if it were not vindicated before trial.” United States v.
MacDonald, 435 U.S. 850, 860 (1978).
M.G. argues that he will be irreparably harmed if we do
not review his constitutional claims now. But that is not so.
As discussed above, he can raise these same claims on an
immediate appeal if the district court grants the govern-
ment’s motion to transfer. In fact, the Third, Fourth, and
Ninth Circuits each considered (and uniformly rejected) sim-
ilar claims after the district court granted the government’s
motion to transfer. See Juvenile Male, 554 F.3d 456 (4th Cir.);
Mitchell H., 182 F.3d 1034 (9th Cir.); A.R., 38 F.3d 699 (3d
Cir.). Although he might not prevail on his claims at that
time, it is the later opportunity to present them that matters,
not his chances of success. M.G.’s constitutional claims are
not rendered effectively unreviewable by our refusal to ad-
dress them today.
We also note that, if the district court denies the govern-
ment’s motion to transfer, the government still would be
prohibited from using at any subsequent criminal prosecu-
tion any information obtained from M.G. during the psycho-
logical examination. The statute itself prohibits such use. See
18 U.S.C. § 5032 (“Statements made by a juvenile prior to or
during a transfer hearing under this section shall not be ad-
missible at subsequent criminal prosecutions.”). And the
No. 16-3311 7
government has conceded as much, promising that “[n]one
of the information obtained from the examination of the de-
fendants by [the government psychologists] will be used at
any subsequent criminal prosecution following the transfer
proceeding in this case or in any other case.” (R. 124 at 1.) If
the government attempts to renege on that promise, M.G.
would have an opportunity to raise his challenge then.
For the foregoing reasons, we DISMISS this appeal with-
out considering the merits.