In Re: Sealed Case

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 4, 1997 Decided December 19, 1997

No. 97-3025

In re: Sealed Case

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00452-01)

Shawn Moore argued the cause and filed the brief for

appellant.

Barbara J. Valliere, Assistant United States Attorney,

argued the cause for appellee, with whom Eric H. Holder, Jr.,

United States Attorney at the time the brief was filed, John

R. Fisher and Michael D. Brittin, Assistant United States

Attorneys, were on the brief.

Before: Sentelle, Randolph and Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Opinion concurring in part and dissenting in part filed by

Circuit Judge Randolph.

Sentelle, Circuit Judge: This is an interlocutory appeal

by a juvenile defendant from an order of the district court

denying his motion to dismiss for lack of jurisdiction, and

directing his transfer for prosecution as an adult. After

examining the basis for the U.S. Attorney's certification of a

"substantial federal interest" under the Juvenile Justice and

Delinquency Prevention Act of 1974, 18 U.S.C. s 5032 p 1, the

district court upheld the certification, finding that charges for

murder of a United States Postal Service mail carrier did in

fact implicate such an interest. Holding also that the defen-

dant's prior adjudication for carnal knowledge of a female

child under sixteen years of age constituted a conviction for a

"crime of violence," the court ordered his transfer for adult

prosecution under s 5032 p 4. Because we hold that a prose-

cutor's certification of a "substantial federal interest" under

18 U.S.C. s 5032 p 1 is not subject to judicial review, and

because the defendant's prior adjudications involved crimes

implicating a "substantial risk of violence" under s 5032 p 4,

we affirm the district court's transfer order.

I

A nine-count information, charging the defendant with,

inter alia, murder of a United States Postal Service mail

carrier under 18 U.S.C. ss 1111, 1114, alleged the following

facts. The defendant, approximately four months before his

eighteenth birthday, conspired with two others to commit

armed robbery. During the afternoon of June 11, 1996, they

observed a pedestrian walk up to a Postal Service truck to

speak to the mail carrier, who was sitting inside eating lunch.

Armed with a .38 caliber revolver, the defendant approached

from the back of the mail truck, pointed the pistol at the mail

carrier and the pedestrian, and told them to get down and

give him their money. The pedestrian complied, but the

driver was impeded by a chain from his belt linking him to

the keys in the truck's ignition. When the defendant grabbed

the driver and began to pull him from the truck, a nearby

citizen yelled out, and the defendant without warning stepped

back, aimed the gun at the driver and shot him in the head,

then fled on foot from the scene. The mail carrier died six

days later.

II

The Juvenile Justice and Delinquency Prevention Act of

1974, 18 U.S.C. ss 5031 et seq. (the "Act"), states that a

juvenile

shall not be proceeded against in any court of the United

States unless the Attorney General, after investigation,

certifies to the appropriate district court of the United

States that ... (3) the offense charged is a crime of

violence that is a felony ... and that there is a substan-

tial Federal interest in the case or the offense to warrant

the exercise of Federal jurisdiction.

18 U.S.C. s 5032. Pursuant to this statute, the United States

Attorney (under authority of the Attorney General, 28 C.F.R.

s 0.57) filed a Certification stating that the charges included

a felony crime of violence and that the government's need to

protect its employees and to ensure delivery of the mail

constituted a "substantial federal interest" warranting the

exercise of federal jurisdiction. The defendant moved to

dismiss the information on the grounds that the federal court

did not have jurisdiction, and that his prior record did not

justify his transfer for adult prosecution. The district court

ruled that the form of the certification was proper. It further

undertook to examine the basis for the government's decision,

and found that the allegations in the information indeed

established a substantial federal interest. While the defen-

dant argues that the district court erred in finding a substan-

tial federal interest in this case, the government vigorously

contests the district court's ruling that it "has the authority to

analyze 'more than the mere form of the government's certifi-

cation' to determine whether a substantial federal interest

exists." United States v. A.W., No. 96-0452, 1997 WL

118408, at *2 (D.D.C. Feb. 20, 1997) (quoting United States v.

Juvenile Male No. 1, 86 F.3d 1314, 1318 (4th Cir. 1996)).

A

Before considering the reviewability of a U.S. Attorney's

certification of a substantial federal interest, we must address

a preliminary question, raised by the panel at oral argument:

whether the ruling of the district court on the validity of

certification is itself properly before this court. We have

squarely held that the decision to transfer a juvenile for adult

prosecution is a "collateral order" qualifying as a final deci-

sion subject to interlocutory appeal under 28 U.S.C. s 1291.

In re Sealed Case, 893 F.2d 363, 366 (D.C. Cir. 1990).

Therefore, the interlocutory appeal is proper; but does this

subject to our review only that issue, or should we also

consider the question of certification? Normally, interlocu-

tory appeal is very restricted in criminal cases, and certifica-

tion would not appear to be subject to interlocutory review on

its own. See, e.g., United States v. Brizendine, 659 F.2d 215

(D.C. Cir. 1981) (denying jurisdiction over interlocutory ap-

peal on grounds related to plea bargaining process). Howev-

er, not only is the question of certification inextricably related

to the transfer order, which is properly before this court, but

federal subject-matter jurisdiction depends upon certification

in accordance with 18 U.S.C. s 5032. See, e.g., Impounded,

120 F.3d 457, 460 (3d Cir. 1997) ("The courts of appeals that

have considered this issue are in near unanimous agreement

that the record certification requirement is a jurisdictional

prerequisite in a transfer proceeding."). Because this court

has the duty to inquire into our own jurisdiction, we hold that

we must address the reviewability of certification when it is

antecedent to another issue properly before us on interlocu-

tory appeal.

Our partially dissenting colleague objects to our consider-

ing this threshold issue. However, the law requires a court

to examine its own subject-matter jurisdiction in criminal

cases as well as civil cases. "Subject-matter jurisdiction

presents a threshold question in any federal prosecution."

United States v. Baucum, 80 F.3d 539, 540 (D.C. Cir.) (per

curiam), cert. denied, 117 S. Ct. 204 (1996). Otherwise put, in

the criminal arena as in the civil, federal courts, being "courts

of limited jurisdiction have only the power to hear those cases

over which Congress has conferred subject-matter jurisdic-

tion upon them." Id. Because of this basic principle, before

we can legitimately decide any question, whether on interloc-

utory or final appeal, we, like all federal courts, "are under an

independent obligation to examine [our] own jurisdiction...."

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). If

we are without subject-matter jurisdiction over the case

ostensibly before us, then any pronouncement on any issue,

even though that issue would itself be otherwise appealable,

becomes a violation of our Article III limitations. There is no

"distinction between civil and criminal cases" in this regard.

Baucum, supra, is but one of many criminal cases examining

subject-matter jurisdiction.

Our colleague's comparison of the certification with an

indictment is not apt. It is not the case that "[i]ndictments

are the functional equivalent of s 5032 certifications," simply

because "both invoke the authority of the district court...."

Dissent at 5. We do not suggest that s 5032 certification is

jurisdictional because it invokes the authority, but rather

because the statutory scheme makes it essential to the exis-

tence of that authority, as we explain hereafter. The indict-

ment, like the complaint in a civil case, simply begins the

application of an existing realm of subject-matter jurisdiction

to the facts and parties of a specific case. In most criminal

cases, that jurisdiction arises under 18 U.S.C. s 3231, though

in the case of a transferred juvenile, it arises under chapter

403 of Title 18, s 5031 et seq. The "functional equivalent" of

the indictment in the case of a transferred juvenile is not the

certification but the criminal information. The criminal infor-

mation in this case displays on its face the jurisdictional basis:

"(filed pursuant to 18 U.S.C. s 5031, et seq.)." 1 There are

subject-matter thresholds to be crossed on the criminal side

as on the civil. If the certification question is such a jurisdic-

tional threshold, then we must determine if we have crossed

it before we can address the interlocutory question lurking

behind it. The certification is such a threshold.

__________

1 We agree with our colleague that the various other potential

defects and affirmative defenses he discusses are not necessarily

jurisdictional. Dissent at 5. We do not agree that they are in any

way parallel to the certification in this case.

Circuit courts addressing the validity of a prosecutor's

certification of substantial federal interest have uniformly

treated the certification requirement as jurisdictional. See,

e.g., Impounded, 117 F.3d 730, 733 (3d Cir. 1997); United

States v. Juvenile Male No. 1, 118 F.3d 298, 303 (5th Cir.),

cert. denied, 66 U.S.L.W. 3355 (Nov. 17, 1997). Similarly, the

circuits also have concluded that the closely related question

of certification of the record under 18 U.S.C. s 5032 is

jurisdictional. See Impounded, 120 F.3d 457, 460 (3d Cir.

1997); United States v. Wong, 40 F.3d 1347, 1369-70 (2d Cir.

1994), cert. denied, 116 S. Ct. 190 (1995); United States v.

Parker, 956 F.2d 169, 170 (8th Cir. 1992); United States v.

Brian N., 900 F.2d 218, 222-23 (10th Cir. 1990). The Sixth

Circuit, in United States v. Chambers, 944 F.2d 1253 (6th Cir.

1991), cert. denied, 502 U.S. 1112 (1992), presented a straight-

forward and convincing analysis demonstrating the jurisdic-

tional nature of the certification requirement under s 5032.

As that circuit noted, under the Federal Juvenile Delinquency

Act, Congress "revoked the district courts' preexisting, large-

ly unrestricted subject-matter jurisdiction over criminal pros-

ecutions against juveniles," by declaring that acts otherwise

criminal, when committed by juveniles, become generally

noncriminal and merely constitute the entry into a state of

"juvenile delinquency." Id. at 1258. Thus, a juvenile who

has committed what otherwise "would have been a crime if

committed by an adult," 18 U.S.C. s 5031 (emphasis added),

has not committed a criminal offense against the United

States and is therefore not within the criminal jurisdiction of

the federal courts. Then, as the Sixth Circuit went on to

note, Congress "partially restored" the jurisdiction it had

taken away from the courts by conferring authority to pro-

ceed against juveniles alleged to have committed "acts that

would be federal crimes if committed by adults," id. at 1259,

when, but only when, the certification requirement is met.

Therefore, the Sixth Circuit reasoned cogently, this certifica-

tion must be a jurisdictional requirement. As it does go to

the subject-matter jurisdiction of the court, we must answer

that question before we can legitimately opine on anything

else.2

After the federal district court has acquired jurisdiction

under s 5032, the prosecution may proceed against the juve-

nile within that jurisdiction in two fashions. First, he may be

proceeded against in a juvenile delinquency proceeding under

chapter 403 of Title 18. This is specified in 18 U.S.C. s 5032,

which states that "[a] juvenile who is alleged to have commit-

ted an act of juvenile delinquency and who is not surrendered

to State authorities shall be proceeded against under this

chapter unless he has requested in writing upon advice of

counsel to be proceeded against as an adult...." Or, if he

has after his fifteenth birthday committed an act which meets

the transfer requirements of s 5032, which we construe later

in this opinion, he may be prosecuted as if he were in fact an

adult. That he has the option under s 5032 of electing the

adult proceeding does not, as the dissent suggests, establish

that the certification procedure is not jurisdictional, nor does

it amount to a decision by the parties to confer subject-matter

jurisdiction. That option in the fourth paragraph of s 5032

only comes into effect in the case of "[a] juvenile ... who is

__________

2 This answers our dissenting colleague's contention that the

federal courts have jurisdiction, without certification, over the acts

of juvenile delinquency under 18 U.S.C. s 3231 "which confers upon

those courts 'original jurisdiction ... of all offenses against the

United States.' " Dissent at 4. As the Chambers opinion demon-

strates, under s 5031, an act of delinquency is one which "would

have been a crime" had it not been for the juvenile status of the

perpetrator. Therefore, the federal court loses jurisdiction under

s 3231 and does not regain it unless it is conferred pursuant to

s 5032. Our colleague's further suggestion that Chambers, con-

trary to its express language, does not support the conclusion that

the s 5032 certification is necessary to subject-matter jurisdiction is

also wide of the mark. The portion of the opinion to which he

refers, 944 F.2d at 1260, concerns the time of the filing of the

certificate, not its necessity. Indeed, the Chambers court expressly

states that it is not "endorsing the government's regrettable tardi-

ness in tendering the delayed certification, a jurisdictional prereq-

uisite." 944 F.2d at 1260 (emphasis added). In that case, as in

this, the jurisdictional prerequisite was present in time for testing

on appeal.

not surrendered to State authorities." Under the second

paragraph of 18 U.S.C. s 5032, a juvenile subject to such

allegations "shall be surrendered" whenever "the Attorney

General does not so certify." The phrase "so certify" refers

to the certification under s 5032 p 1. That paragraph estab-

lishes the very certification we are holding jurisdictional.

The juvenile's consent does not confer jurisdiction. It merely

establishes whether the district court, which has already

obtained jurisdiction via the certification, will then exercise

that jurisdiction in a juvenile proceeding or in a transfer

proceeding resulting in prosecution as an adult.

Our colleague asserts that he can find "[n]o significant

difference" between this case and several others where courts

denied interlocutory review of alleged jurisdictional defects.

But none of the cases he cites present the situation posed

here, where a legitimate question involving Article III

subject-matter jurisdiction necessarily precedes another issue

(transfer for adult prosecution) which we are required to

review on an interlocutory basis. In United States v. Poin-

dexter, 859 F.2d 216 (D.C. Cir. 1988), we held allegations of

grand jury taint not subject to interlocutory review, but the

case presented no proper interlocutory question, nor did the

grand jury issue contest federal subject-matter jurisdiction.

Similarly, United States v. Levy, 947 F.2d 1032 (2d Cir. 1991),

and United States v. Sorren, 605 F.2d 1211 (1st Cir. 1979),

both denied interlocutory review over questions of personal

jurisdiction, and no proper interlocutory issue was presented.

Again, United States v. Layton, 645 F.2d 681 (9th Cir.), cert.

denied, 452 U.S. 972 (1981), held only that a purported

challenge to subject-matter jurisdiction (a claim that a statute

did not apply to acts outside the United States) did not,

standing alone, justify interlocutory review. Abney v. United

States, 431 U.S. 651 (1977), is not to the contrary. In that

case, the Court held that although a pretrial order denying a

motion to dismiss an indictment on double jeopardy grounds

was a "collateral order" subject to interlocutory appeal, a

denial of a challenge to the sufficiency of the same indictment

was not. Id. at 663. But although our dissenting colleague

rhetorically refers to such a challenge as one involving a

court's "federal judicial power," a challenge to the sufficiency

of an indictment is not a challenge to the jurisdiction of the

court. Contrary to the dissent's suggestion, we do not con-

sider the certification question here based on some theory of

discretionary "pendent appellate jurisdiction." We consider

that question because it is a jurisdictional prerequisite to

considering another question which this circuit has held we

must consider on an interlocutory basis.

B

The duty to address the validity of certification does not

decide the issue of our authority to look behind the U.S.

Attorney's decision. Although the Fourth Circuit claims to

have identified a circuit split on the reviewability of a prose-

cutor's certification, Juvenile Male No. 1, 86 F.3d at 1317-18,

a closer examination of the precedents reveals that only the

Fourth Circuit itself has allowed judicial inquiry into the basis

upon which a "substantial federal interest" certification has

been made.

In rejecting judicial review of the substantive decision

underlying certification under 18 U.S.C. s 5032, three circuits

have noted that the section "does not explicitly provide for

judicial review of a certification, nor does it provide articula-

ble standards" that a court can use to evaluate the exercise of

the prosecutor's discretion. Impounded, 117 F.3d 730, 733

(3d Cir. 1997) (extensively discussing the precedents). The

structure of s 5032 supports this argument: this section

expressly provides for judicial review of orders transferring a

juvenile for adult prosecution and outlines standards for

courts to apply, yet it is silent regarding review of certifica-

tion. See Judge Wilkinson's concurring opinion in Juvenile

Male No. 1, 86 F.3d at 1324. On similar reasoning, most

courts have held unreviewable the bases of certification,

including whether there exists an "appropriate" state court

with jurisdiction over the juvenile, United States v. Vancier,

515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857 (1975);

United States v. C.G., 736 F.2d 1474 (11th Cir. 1984); and

whether the case in fact implicates a "substantial federal

interest," Impounded, 117 F.3d at 735-36; United States v.

Juvenile No. 1, 118 F.3d 298 (5th Cir. 1997); United States v.

I.D.P., 102 F.3d 507 (11th Cir. 1996), cert. denied, 118 S. Ct.

305 (1997).

Other than the Fourth Circuit, those circuits that have

reviewed certification at all have only tested the facial ade-

quacy of the certification against the facial requirements of

s 5032. See United States v. Doe, 49 F.3d 859 (2d Cir. 1995)

(allowing review of whether the juvenile was charged with a

crime of violence or one specifically enumerated in s 5032);

United States v. Juvenile Male, 923 F.2d 614 (8th Cir. 1991)

(same); United States v. Gonzalez-Cervantes, 668 F.2d 1073

(9th Cir. 1981) (reviewing whether the certification was timely

filed by an authorized person and stated the appropriate

statutory factors). Courts have also suggested that it might

be appropriate to conduct a closer examination to resolve

allegations of bad faith, see, e.g., United States v. C.G., 736

F.2d at 1478, but there are no such allegations in this case.

In holding certification subject to judicial scrutiny, the

Fourth Circuit first relied on a recent decision of the Su-

preme Court under the Westfall Act that included the lan-

guage, " 'executive determinations generally are subject to

judicial review.' " Juvenile Male No. 1, 86 F.3d at 1319

(quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417,

434 (1995)). Under the Westfall Act, 28 U.S.C. s 2679, the

Attorney General defends civil actions brought against em-

ployees of the United States and, under appropriate circum-

stances, certifies "that the defendant employee was acting

within the scope of his office or employment at the time of the

incident out of which the claim arose." 28 U.S.C.

s 2679(d)(1). Upon such certification, the United States is

substituted for the employee as the defendant in the action

and the case proceeds under the Federal Tort Claims Act, 28

U.S.C. ss 2671 et seq. ("FTCA"). If the Attorney General

refuses to so certify, an employee can seek review, alleging

wrongful failure to certify under s 2679(d)(3). Gutierrez de

Martinez, 515 U.S. at 428. In most cases, plaintiffs have no

complaint about the substitution of the "financially reliable"

United States for an individual defendant. Id. at 427. How-

ever, when the recharacterized case falls within an exception

to the waiver of sovereign immunity under the FTCA (such

as for claims "arising in a foreign country," 28 U.S.C.

s 2680(k)), certification entirely disposes of the plaintiff's

claims. That is, the substitution of the United States has

ended the civil action against the individual employee, but the

exception to the FTCA shields liability of the United States,

leaving the plaintiff without remedy.

In the Gutierrez de Martinez case, a federal employee

contended that the Attorney General's decision to certify an

action under the Westfall Act was unreviewable. The Su-

preme Court disagreed, and held a certification subject to

judicial review. In reaching this conclusion, the Court first

noted that in the class of cases represented by the one before

it (that is, in which the United States, if substituted, would be

immune), certification is tantamount to a final judgment

against the plaintiff. With that finality as a backdrop, the

court went on to consider the complex of incentives weighing

on the U.S. Attorney making "the impetus to certify ...

overwhelming." Id. at 427. Shortly put, if the U.S. Attorney

refuses to certify, the federal employee is left exposed, the

plaintiff does not have available the deep pocket of the United

States, but the immunity of the United States is still subject

to assault by review of the refusal to certify under

s 2679(d)(3). On the other hand, if the U.S. Attorney does

certify, the employee is immune, the United States has any

immunities unwaived under exceptions to the Federal Tort

Claims Act, and, prior to Gutierrez de Martinez, the decision

was unreviewable. The Supreme Court denied that immuni-

ty, recalling that "[n]o man is allowed to be a judge in his own

cause." 515 U.S. at 428 (quoting The Federalist No. 10, at 79

(J. Madison) (C. Rossiter ed., 1961)). Also, the Court noted

that the statutory predecessor to the Westfall Act expressly

provided for judicial review of scope of employment determi-

nations; therefore, Congress "legislated against a backdrop

of judicial review," and most likely intended to continue to

allow judicial scrutiny of the "executive determination" that

an employee was acting within the scope of his employment.

Id. at 425.

This brings us to the most important distinction between

s 5032 certification and the "scope of employment" certifica-

tion under the Westfall Act and its predecessor statutes. In

the ordinary case, the exercise of prosecutorial discretion, at

the very core of the executive function, has long been held

presumptively unreviewable. See United States v. Arm-

strong, 116 S. Ct. 1480, 1486 (1996) (noting exception for

selective prosecution and other constitutional claims); Wayte

v. United States, 470 U.S. 598, 607 (1985) (same). We cannot

agree with the Fourth Circuit that a "presumption of reviewa-

bility" applies to s 5032 certification. See also Town of

Newton v. Rumery, 480 U.S. 386, 397 (1987) (describing the

"background of discretion" applicable to prosecutive deci-

sions). The decision to invoke the power of the federal

government and the criminal jurisdiction of federal courts

rests peculiarly within the province of the Executive. Con-

gress has created many areas of substantial overlap between

federal and state criminal law; given the limited resources

and policy objectives of the federal government, not every

violation of federal law is prosecuted in federal court. The

decision to certify that a particular case involves a "substan-

tial federal interest" implicates the core prosecutorial discre-

tion vested in the Attorney General and her delegates.

In sum, the reasoning of Gutierrez de Martinez is com-

pletely inapplicable to certification under the Juvenile Justice

and Delinquency Prevention Act. Unlike the Westfall Act's

"scope of employment" certification, s 5032 certification is not

influenced by similar incentives, nor does it conclusively

resolve the underlying case against the defendant. The

"scope of employment" determination itself is inherently dif-

ferent from the decision to commit government resources to

the prosecution of an alleged violent felon in a criminal case.

The "scope of employment" determination involves the appli-

cation of one element of the common law doctrine of respon-

deat superior, historically a question of law within the prove-

nance of courts. See, e.g., Fiocco v. Carver, 137 N.E. 309

(N.Y.1922) (Cardozo, J.). On the other hand, a "substantial

federal interest" may vary depending upon federal policy and

upon factors "such as the general incidence of crime, the need

for deterrence, enforcement priorities, and the like." Im-

pounded, 117 F.3d at 734. The Executive, not the courts of

law, is best qualified to determine such matters. See Wayte,

470 U.S. at 607 ("Such factors as the strength of the case, the

prosecution's general deterrence value, the Government's en-

forcement priorities, and the case's relationship to the Gov-

ernment's overall enforcement plan are not readily suscepti-

ble to the kind of analysis the courts are competent to

undertake.").

The Fourth Circuit also relied on an antecedent "clear

preference" in federal law for "having juvenile criminal mat-

ters handled in the state courts." Juvenile Male No. 1, 86

F.3d at 1320. Although recognizing that the more recent

amendments to s 5032 reflect that "serious crimes committed

by juveniles" are becoming "a national problem that Congress

believes is best addressed on a federal level," that court said

that "the focus of the juvenile statutes is still on rehabilitation

within the state systems," and ruled that judicial review

would further this congressional goal. Id. Essentially, the

Fourth Circuit made this "focus" into a presumption, put this

presumption on the same side of the scale as the "presump-

tion in favor of judicial review," and with only slight mention

of the prosecutive function, announced that the scales tipped

in favor of reviewability. We disagree. We can discover no

reason, either in the statutory language or in precedent, to

conclude that Congress intended judges to intervene in prose-

cutorial decisions in order to protect a "focus" on state

rehabilitation of juveniles.

The defendant, relying on United States v. Male Juvenile,

844 F. Supp. 280 (E.D. Va. 1994), argues that federal courts

should review the stated reasons underlying the government's

decision to proceed in federal court in order "to make sure

that 'the nature of the offense or [the] circumstances of the

case give rise to special Federal concerns.' " Appellant's

Brief at 6 (quoting S. Rep. No. 98-225, at 389, reprinted in

1984 U.S.C.C.A.N. 3182, 3529). In the Male Juvenile case

relied upon by appellant, the district court worried that

absent a review of the Attorney General's certification, the

government could prosecute a juvenile in federal court "when-

ever a juvenile has committed a violent felony for which there

is concurrent jurisdiction." Male Juvenile, 844 F. Supp. at

284. Actually, the government would prosecute in federal

court only when the Attorney General or her designee had

determined that the "substantial federal interest" require-

ment of s 5032 was met. With review, the government could

do so only when a court had made the same determination.

To argue that this difference compels review by judges of

the Executive decision is to assume that only judges can

discern the meaning of statutes, a view that is at odds with

our three-part constitutional structure. The Constitution re-

quires that the Executive "take Care that the Laws be

faithfully executed." U.S. Const. Art. II s 3. This duty of

fidelity requires interpretation and application of Congress's

enactments, often in situations where the limitations of Arti-

cle III (e.g., the case or controversy requirement) prevent

interpretive guidance from the courts. In prosecuting adults,

the Executive constantly faces situations in which a potential

defendant has violated both state and federal laws. The

Executive has the duty and is presumed to have the expertise

to make the decision to prosecute. Not only do we have no

reason to assume the Executive less competent to make a

similar decision, albeit with a higher threshold, with reference

to juveniles, but there is every reason to assume that this

policy-laden decision is properly entrusted to the same branch

administering at the prosecutive stage the rest of the body of

criminal law. There is nothing nugatory about congressional

efforts to provide guidance to the Executive directly via

statutory language. Not every such effort gives rise to a

justiciable question. We hold that this one does not. Thus,

we review the certification only to determine its presence and

whether it facially supports our jurisdiction. This one does,

and we can require no more.

III

Once federal jurisdiction has attached, as we hold it has,

the same section of the Act requires the mandatory transfer

for adult prosecution of

a juvenile who is alleged to have committed an act after

his sixteenth birthday which if committed by an adult

would be a felony offense that has as an element thereof

the use, attempted use, or threatened use of physical

force against the person of another, or that, by its very

nature, involves a substantial risk that physical force

against the person of another may be used in committing

the offense, ... and who has previously been found

guilty of an act which if committed by an adult would

have been one of the offenses set forth in this subsection

or an offense in violation of a State felony statute that

would have been such an offense if a circumstance giving

rise to Federal jurisdiction had existed....

18 U.S.C. s 5032. In this case, the government filed a

"Notice of Prior Conviction for Purposes of Mandatory Trans-

fer of Juvenile for Prosecution as an Adult." This Notice

documented that in 1993, the defendant pled guilty to carnal

knowledge of a child under sixteen, in violation of D.C. Code

s 22-2801, and in 1996, he pled guilty to second degree child

sexual abuse, in violation of D.C. Code s 22-4109. The

children involved were family members aged six and four,

respectively, at the time of the offenses. The district court,

ruling only on the basis of the 1993 adjudication, agreed with

the prosecutor that this crime involved "a substantial risk

that physical force against the person of another may be used

in committing the offense," and held the defendant subject to

mandatory transfer for prosecution as an adult.

The defendant argues that the court should not look be-

yond the elements of the carnal knowledge offense, and that

these elements do not include the use of force. We need not

reach the question of whether the court should look beyond

the elements of the charged offense to the charging papers or

even to the facts underlying the prior conviction, because we

hold that sexual abuse of a minor inherently involves "a

substantial risk that physical force against the person of

another may be used in committing the offense." Further,

we have held already that, in a carnal knowledge prosecution,

"when a child under the age of consent is involved the law

conclusively presumes force." United States v. Jones, 477

F.2d 1213, 1218 (D.C. Cir. 1973) (applying this presumption in

the context of the sufficiency of corroboration evidence).

Thus, the district court properly held the defendant subject to

mandatory transfer for adult prosecution under the applicable

standards of s 5032.

CONCLUSION

We hold that a federal prosecutor's s 5032 certification of a

"substantial federal interest" implicates core prosecutorial

judgment and discretion, and that therefore--absent allega-

tions of bad faith or facial inadequacy of the certificate--the

basis for such certification is not subject to judicial review.

We uphold the certification on these grounds. Because a

prior offense for sexual abuse of a minor is a crime involving

a "substantial risk" of physical force, we affirm the order

under 18 U.S.C. s 5032 transferring the defendant for adult

prosecution in this matter.

Randolph, Circuit Judge, concurring in part and dissent-

ing in part: I concur in the majority's opinion insofar as it

upholds the district court's "transfer" of the defendant for

prosecution as an adult. The balance of the opinion deals

with the appeal from the district court's order regarding the

United States Attorney's certification of a "substantial Feder-

al interest," 18 U.S.C. s 5032. I cannot join this part be-

cause, in my view, we do not have appellate jurisdiction to

decide the matter: the order is not a final decision; it does

not fall within the collateral order doctrine; we do not have

pendent jurisdiction over it; and certification is not a "juris-

dictional" prerequisite to the transfer order. I will take up

each of these points in sequence.

First, the "courts of appeals ... shall have jurisdiction of

appeals from all final decisions of the district courts," 28

U.S.C. s 1291. A "final decision" is one that "ends the

litigation on the merits and leaves nothing for the court to do

but execute the judgment." Catlin v. United States, 324 U.S.

229, 233 (1945). There is no such "final decision" here. The

case has not even gone to trial. And so to sustain appellate

jurisdiction, we must slip the appeal into an exception. This

is easy enough for the transfer order. The law of the circuit

dictates that "transfer" orders fit within the limited collateral

order exception to s 1291's final judgment rule. See In re

Sealed Case, 893 F.2d 363, 366-68 (D.C. Cir. 1990); Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949).

Certification orders cannot be squeezed through that opening,

which brings me to point two.

Appealable, final collateral orders share several character-

istics, one of which is that "denial of immediate review would

render impossible any review whatsoever," United States v.

Ryan, 402 U.S. 530, 533 (1971). In criminal cases--apart

from those dealing with the constitutional right to bail--the

collateral order exception has been invoked when an order

deprives the defendant of some "right not to be tried."

Midland Asphalt Corp. v. United States, 489 U.S. 794, 800

(1989). Transfer orders may be of that sort. District court

orders passing on the validity of the Attorney General's

certification are not. If defendants are entitled to judicial

review of such orders, the review may be had after conviction

and sentencing. The certification requirement of s 5032 no

more confers upon a defendant a "right not to be tried" than

does the Sixth Amendment's guarantee of a speedy trial, or

the due process prohibition against vindictive prosecution, or

the requirement that grand juries not be influenced by gov-

ernment violations of Rule 6(e) of the Federal Rules of

Criminal Procedure. While violation of those proscriptions

ordinarily demands dismissal of the indictment, a district

court's refusal to dismiss may not be raised in an interlocu-

tory appeal. See Midland Asphalt Corp., 489 U.S. at 798-

802; United States v. Hollywood Motor Car Co., 458 U.S. 263,

264-70 (1982); United States v. MacDonald, 435 U.S. 850,

852-61 (1978).

My colleagues acknowledge that the certification order

"would not appear to be subject to interlocutory review on its

own." Maj. op. at 4. That eminently correct observation,

shared by one other circuit (see United States v. Juvenile

Female, 869 F.2d 458, 460 (9th Cir. 1989)), should have put an

end to the appeal from that order. If not the collateral order

doctrine, what other basis is there for asserting appellate

jurisdiction? Some federal appellate courts, ours included,

have devised a doctrine of "pendent" appellate jurisdiction in

civil cases. See, e.g., Swint v. Chambers County Comm'n, 514

U.S. 35, 44-45 n.2 (1995); Jungquist v. Sheikh Sultan Bin

Khalifa Al Nahyan, 115 F.3d 1020, 1026 (D.C. Cir. 1997).

This enables a court of appeals to reach out and review

orders over which it has no independent jurisdiction. But

pendent appellate jurisdiction has no place in criminal cases,

where the final judgment rule is "at its strongest." Holly-

wood Motor Car Co., 458 U.S. at 265. The Supreme Court

could not be clearer on the point--in criminal cases, would-be

pendent claims "are appealable if, and only if, they too fall

within Cohen's collateral-order exception to the final-

judgment rule." Abney v. United States, 431 U.S. 651, 663

(1977); see also MacDonald, 435 U.S. at 857 n.6; United

States v. Rostenkowski, 59 F.3d 1291, 1301 (D.C. Cir. 1995);

United States v. Crosby, 20 F.3d 480, 487 (D.C. Cir. 1994);

Juvenile Female, 869 F.2d at 460; Note, The Proper Scope of

Pendent Appellate Jurisdiction in the Collateral Order Con-

text, 100 Yale L.J. 511, 520 (1990).

Now to point four. The majority's theory, as I understand

it, flows from a line of cases such as Mansfield, Coldwater &

Lake Michigan Railway v. Swan, 111 U.S. 379, 382 (1884),

which holds that a federal appellate court must first satisfy

itself of its jurisdiction and then must make sure that the

lower court also had jurisdiction. See, e.g., Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 & n.4 (1986).

This leads the majority to think that given our appellate

jurisdiction over the transfer order, we are obligated to

examine the district court's certification order because the

certification order was "jurisdictional." See maj. op. at 3-9.

I part company on two grounds.

First, the majority's principal authority--United States v.

Chambers, 944 F.2d 1253, 1257-61 (6th Cir. 1991)--does not

support its conclusion. To be sure, Chambers held that a

s 5032 certificate from the Attorney General was essential to

sustaining the district court's jurisdiction.1 But the Sixth

Circuit also held that the certificate did not have to be filed

before trial because it was not a prerequisite to "initiating

federal proceedings" against the juvenile offender. 944 F.2d

at 1260. (The government there did not file its certificate

until the close of its case-in-chief, id. at 1257.) Other courts

have reached the same conclusion. See, e.g., United States v.

Gonzalez-Cervantes, 668 F.2d 1073, 1077 (9th Cir. 1981);

United States v. Ramapuram, 432 F. Supp. 140, 143 (D. Md.

1977), aff'd, 577 F.2d 738 (4th Cir. 1978) (unpublished). In

short, Chambers undercuts rather than supports the majori-

ty's essential proposition--that without a valid and proper

__________

1 The majority cites two other cases--Impounded, 117 F.3d

730, 733 (3d Cir. 1997), and United States v. Juvenile Male #1, 118

F.3d 298, 303 (5th Cir. 1997)--supposedly holding that the require-

ment that a prosecutor certify a substantial federal interest was

jurisdictional. Impounded merely "assume[d] that the s 5032 certi-

fication is a prerequisite to the district court exercising jurisdiction

over the transfer hearing." 117 F.3d at 733. Juvenile Male #1

made the same assumption. 118 F.3d at 303-04.

certificate, the district court would have no jurisdiction to

review the transfer order.

My next and final ground for disagreement is this--the

Attorney General's certification is not, as the majority sup-

poses, "jurisdictional." In criminal cases, the jurisdiction of

federal district courts stems from 18 U.S.C. s 3231, which

confers upon those courts "original jurisdiction ... of all

offenses against the United States." The policy reflected in

s 5032 may be one of abstention, of permitting the federal

criminal laws to be invoked against juvenile violators only in

limited situations. See Chambers, 944 F.2d at 1258. Even

so, the text of the Federal Juvenile Delinquency Act does not

revoke the existing jurisdiction of the district courts over

juvenile violators. If that had been the idea--my colleagues

think it was--Congress used a very obscure method of ex-

pressing its desire, quite different than the clear language of

jurisdiction found in so many other jurisdiction-affecting stat-

utes. The Act, in s 5032, states that the juvenile "shall not

be proceeded against in any court of the United States unless

the Attorney General" certifies to one of the three exceptions,

the last of which mentions "substantial Federal interest."

The words "proceeded against" are not directed to the juris-

diction of the courts. Courts do not proceed against persons.

Prosecutors do. And it is prosecutors, or more accurately the

Attorney General, who are the addressees of this language.

It is therefore scarcely surprising that the majority's mis-

treatment of certification as jurisdictional poses vexing prob-

lems, problems my colleagues do not bother to answer.

There is, for instance, a provision in s 5032 allowing a

juvenile to request in writing that he not be tried as a

juvenile and that he be "proceeded against as an adult."

Such a written waiver takes the juvenile out of the Act. If we

now plug in the majority's jurisdictional theory, the conse-

quence is that juvenile defendants may confer jurisdiction on

district courts by consenting to be tried as adults. What

happened to the time-honored principle that parties cannot,

by consent, confer jurisdiction on the federal courts? Consid-

er also the majority's suggestion that certification may be

open to challenge for "bad faith." Maj. op. at 16. Is one to

suppose that jurisdiction now turns on the state of mind of

one of the litigants? I cannot understand why we should be

reaching so far, and in such an unorthodox manner, to bestow

the label "jurisdictional." The Act sets up a system for

dealing with juveniles already subject to federal jurisdiction

under 18 U.S.C. s 3231 because of their alleged "violation of a

law of the United States," 18 U.S.C. s 5031. The certification

requirement in s 5032, as the majority itself appears to

acknowledge, see maj. op. at 14, merely codifies Congress's

judgment about when the Attorney General may invoke this

jurisdiction.

It is not enough to answer that the exercise of federal

judicial power depends on a s 5032 certificate. One could say

the same about a grand jury indictment. Yet the Supreme

Court in Abney, while sustaining its appellate jurisdiction to

consider the defendant's double jeopardy claim, refused to

reach his challenge to the sufficiency of the indictment. See

431 U.S. at 663. Indictments are the functional equivalent of

s 5032 certifications; both signify that there is a significant

federal interest; both invoke the authority of the district

court to proceed; both are subject to challenge. Yet indict-

ments cannot be considered "jurisdictional" in any meaningful

sense. Simply because some condition or requirement is a

prerequisite to criminal proceedings does not make the condi-

tion or requirement jurisdictional. A case must be brought

within the period of limitations. There must be a speedy

trial. The grand jury must be properly constituted. Trial

must occur in a specified venue. Some offenses must be tried

by a jury. Defendants are entitled to counsel. None of these

are considered "jurisdictional."

We would do well to remember that calling something

"jurisdictional" will have lasting, important and perhaps unan-

ticipated effects in future cases. If the Attorney General's

certification is jurisdictional, as my colleagues hold, chal-

lenges to it may be raised initially in the middle of trial, or

right before sentencing, or on appeal, or in a petition for

rehearing, or at any other time. Also, if the certification is

jurisdictional, the juvenile defendant may not waive the re-

quirement, even I suppose by pleading guilty. Yet I see no

good reason--the majority offers none--why a defendant

should be permitted to attack a certificate for the first time

on appeal, or why a juvenile cannot waive the requirement

altogether, or why a s 5032 certificate ought to be considered

any more important than the many constitutional and statuto-

ry requirements which must be raised at trial and which can

be waived.

In short, I believe that rather than succumbing to the

temptation to resolve the issue on its merits, the majority

should have dismissed the appeal from the district court's

certification order on the authority of Abney v. United States.