Impounded v.

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

6-30-1997

Impounded v.

Precedential or Non-Precedential:

Docket 96-7781

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Filed June 30, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-7781

IMPOUNDED

(Juvenile R.G., Appellant)

On Appeal From the District Court of

the Virgin Islands (Division of St. Croix)

(D.C.Crim No. 96-cr-00046)

Argued: April 9, 1997

Before: BECKER, ROTH, and WEIS,

Circuit Judges.

(Filed June 30, 1997)

THURSTON T. McKELVIN, ESQUIRE

Federal Public Defender

MELODY M. WALCOTT, ESQUIRE

(ARGUED)

Assistant Federal Public Defender

P.O. Box 3450

Christiansted, St. Croix

U.S. Virgin Islands 00822

Attorneys for Appellant

JAMES A. HURD, JR., ESQUIRE

United States Attorney

RICHARD M. PRENDERGAST,

ESQUIRE (ARGUED)

Assistant United States Attorney

1108 King Street - Suite 201

Christiansted, St. Croix

U.S. Virgin Islands 00820

Attorneys for Appellees

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal by a juvenile defendant charged with a

number of serious crimes challenges the authority of the

United States government to prosecute him in federal court.

The governing statute is 18 U.S.C. § 5032, which

establishes a two-step procedure governing the transfer of

juveniles from state to federal court for criminal

prosecution. The appeal presents the important question,

which has divided the circuits, whether the certification

decision of the United States Attorney General or her

designee -- the first-step in the transfer proceedings -- is

reviewable by a federal court.

Because we believe that the core of the decision to certify

is one left to the discretion of the federal prosecutor, we

follow the majority circuit view and hold that we have

jurisdiction to review only limited aspects of the

certification decision, including whether the certification is

proper in form, whether it was made in bad faith, and the

purely legal question whether the juvenile has been charged

with a crime of violence.

Our conclusion as to our limited ability to review a

certification decision effectively resolves the question

whether the prosecutor made a proper certification here, for

the non-reviewable facets of the certification (that the Virgin

Islands refuses to assume jurisdiction and that the case

presents a substantial federal interest) are sufficient and

sustain the certification.

2

The second-step question, whether the district court

properly allowed the transfer of the juvenile to adult status

under the so-called mandatory transfer provisions of

§ 5032, turns on whether the possession crime with which

the juvenile was charged, see V.I. Code Ann. tit. 14,

§ 2251(a)(2), involves a substantial risk of the use of

physical force. Because the possession crime includes as an

element of the offense the intent to use a dangerous

weapon, and the commission of the crime will therefore

present a substantial risk that physical force will be used,

we hold that the possession crime satisfies the

requirements of the § 5032 mandatory transfer provisions.

The order of the district court transferring the juvenile's

case to federal court will thus be affirmed.

I. SECTION 5032 TRANSFERS

In order to facilitate the understanding of the issues, we

first describe the provisions in 18 U.S.C. § 5032 pertaining

to the transfer of a juvenile from state authorities to a

federal district court for criminal prosecution as an adult.

Transfer proceedings are governed by a two-step process.

The first step is certification by the Attorney General or her

designee, normally a United States Attorney. The certifying

party must certify either that

(1) the juvenile court or other appropriate court of a

State does not have jurisdiction or refuses to assume

jurisdiction over said juvenile with respect to such

alleged act of juvenile delinquency, (2) the State does

not have available programs and services adequate for

the needs of juveniles, or (3) the offense charged is a

crime of violence that is a felony or [is] an offense

[specifically enumerated in this paragraph], and that

there is a substantial Federal interest in the case or

the offense to warrant the exercise of Federal

jurisdiction.

18 U.S.C. § 5032.1

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1. We recognize that § 5032 might be read to mean that the certifying

party must, in all cases, certify that there is a substantial federal

interest. That reading, although plausible, is a function of inartful

3

Contingent upon a proper certification, the federal

prosecutor may move in the appropriate district court for a

transfer of the juvenile to adult status -- the second step in

the transfer process. Section 5032 envisions two avenues

by which a transfer may occur. First are the so-called

permissive transfer provisions. Under the permissive

transfer provisions, the district court may transfer a

juvenile "if such court finds, after hearing, such transfer

would be in the interest of justice." Id. To assess whether

_________________________________________________________________

drafting of the statute. Following the phrase in the sentence that reads

"the Attorney General, after investigation, certifies to the appropriate

district court of the United States that" (emphasis added) there are three

choices. Separating that phrase and the three choices from the

substantial federal interest phrase are the words "and that" preceded by

a comma. Simplifying the sentence, then, it reads as follows: "the

Attorney General, after investigation, certifies to the appropriate district

court of the United States that [A, B, or C], and that [D]." (emphasis

added) The "A, B, or C" represents the phrase containing the three

choices; the "D" is the phrase containing the substantial federal interest.

Thus, one might read the statute to require that the Attorney General

certify everything following the two uses of the word "that," i.e., the

Attorney General must always certify to the existence of a substantial

federal interest.

However, this reading does not comport with the legislative history of

the 1984 amendment to § 5032 that added the language referring to

crimes of violence and to a substantial federal interest. A Senate report

stated that the 1984 amendment added a "third category to existing law

that would permit the disposition of a case involving a juvenile charged

with a serious felony by means of a Federal proceeding . . . if the

Attorney General certifies that the offense is a felony crime of violence

. . . and that there is a `substantial Federal interest in the case or offense

to warrant the exercise of Federal jurisdiction.' " S. Rep. No. 98-225, at

389 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3529 (footnote

omitted). Thus, we believe that the proper reading of § 5032 includes the

substantial federal interest requirement within the third category of

choices to which the Attorney General must certify. In other words,

using the same representation as that used above, the certifying party

must certify to (A), (B), or (C and D). Our reading comports with that of

the Ninth Circuit, see United States v. Doe, 13 F.3d 302, 304 n.1 (9th

Cir. 1993), and the Department of Justice, see 3(a) United States

Department of Justice, United States Attorneys' Manual § 9-8.110

(1988).

4

a transfer would be "in the interest of justice," the statute

directs the court to examine:

the age and social background of the juvenile; the

nature of the alleged offense; the extent and nature of

the juvenile's prior delinquency record; the juvenile's

present intellectual development and psychological

maturity; the nature of past treatment efforts and the

juvenile's response to such efforts; the availability of

programs designed to treat the juvenile's behavioral

problems.

Id.

The second avenue by which a juvenile may be

transferred to adult status is by way of the mandatory

transfer provisions. Pursuant to § 5032, a district court

shall transfer the juvenile if three factors are present: (1)

the juvenile committed the act underlying the charged

offense after his sixteenth birthday; (2) the charged offense

is a felony that has as an element the use of physical force

or by its nature involves the risk of physical force, or is an

offense specifically enumerated in the paragraph; and (3)

the juvenile has previously been found guilty of a crime

that would satisfy factor (2). Id.

II. FACTS AND PROCEDURAL HISTORY

The core offense involves a carjacking. In January 1995,

a young woman drove to her parents' house to pick up her

sister. Just after the sister entered the car outside the

house, two masked men, one of whom was armed,

approached the car and demanded the keys. The women

complied and ran back inside the house. Their father then

went outside, but returned immediately to the house when

he heard a gun shot. The two men drove off. The police

located the car the following day; a stereo system and a

cellular phone had been stolen from the car.

One of the young women named the juvenile as her

assailant. The Virgin Islands police located the juvenile,

arrested him, and charged him with robbery, assault, and

possession of a firearm during the commission of a crime of

violence. The Territorial Court of the Virgin Islands ordered

5

that the juvenile be prosecuted in that court as an adult.

Then, pursuant to an agreement with the United States

Attorney for the Virgin Islands, the Government of the

Virgin Islands declined to prosecute the juvenile. Shortly

thereafter, the United States Attorney filed an Information

in the District Court of the Virgin Islands charging the

juvenile with carjacking, robbery, use of a firearm during a

crime of violence, and possession of a firearm during a

crime of violence. The United States Attorney also made the

requisite certification under § 5032, and moved under both

the mandatory and permissive provisions of § 5032 to

transfer the juvenile to adult status.

The district court held a hearing to determine whether

transfer to adult status was appropriate. The court

concluded that all three elements of § 5032's mandatory

transfer provisions were met: the juvenile was more than

sixteen years of age when the crime was alleged to have

been committed; each of the crimes for which he was

charged had as an element "the use, attempted use, or

threatened use of physical force . . . or . . . involved a

substantial risk that physical force [may be used] against

. . . another"; and the juvenile had previously been found

guilty of a violent crime. The court therefore ordered the

transfer of the juvenile to adult status.

The juvenile appeals from the district court's transfer

order. Included in that appeal is a challenge to the § 5032

certification. We will assume that the § 5032 certification is

a prerequisite to the district court exercising jurisdiction

over the transfer hearing. Therefore, whether the district

court properly exercised jurisdiction over the § 5032

transfer hearing turns on whether the certification was

proper. Although the order from which the juvenile appeals

is not "final" for the purposes of 28 U.S.C.§ 1291 or 48

U.S.C. § 1613a(c), we have appellate jurisdiction pursuant

to the collateral order doctrine. See In re A.M., 34 F.3d 153,

155-56 (3d Cir. 1994).

6

III. REVIEW OF THE PROSECUTOR'S § 5032

CERTIFICATION

A. Is a § 5032 Certification Reviewable?

As a threshold matter, we must determine whether we

have jurisdiction to review the prosecutor's § 5032

certification. Although this is an issue of first impression

for us, we do not write on a blank slate, for a number of

Courts of Appeals have already published opinions on the

point, from which we draw instruction.2

The seminal case is United States v. Vancier, 515 F.2d

1378 (2d Cir. 1975). In Vancier, the United States Attorney

had certified to the district court that no appropriate state

court had jurisdiction over the defendant.3 On appeal,

Vancier argued that the certification was improper because

there existed an "appropriate" state court with jurisdiction

over him. The court noted, however, that § 5032 does not

explicitly provide for judicial review of a certification, nor

does it provide articulable standards against which a court

could measure whether an appropriate state court could

exercise jurisdiction over the juvenile. See id. at 1380. It

concluded that, although the statute provides some

limitations on the prosecutor's discretion to certify a

juvenile for federal jurisdiction, those limitations do not

afford the courts the power to review the exercise of that

discretion. See id. at 1380-81. Analogizing the certification

decision to other non-reviewable determinations made by

_________________________________________________________________

2. It is interesting to note that both Houses of Congress are currently

considering legislation that would amend § 5032 to make clear that the

necessary certifications are not reviewable by any court. The House of

Representatives has already passed a version of the legislation, see

Juvenile Crime Control Act of 1997, H.R. 3, 105th Cong. § 101 (1997),

and the Senate is actively deliberating about another version, see Violent

and Repeat Juvenile Offender Act of 1997, S.10, 105th Cong. § 102(a)

(1997). We understand, of course, that the legislation may change prior

to enactment, if it is enacted at all.

3. At the time of the Vancier case, § 5032 did not contain the option to

certify that the juvenile was charged with a crime of violence or with one

of the enumerated crimes, or the requirement that such a case present

a substantial federal interest.

7

law enforcement officials, the court held that the§ 5032

certification is unreviewable. See id. at 1381.

Other circuits have reached a similar conclusion. The

Eleventh Circuit, in United States v. C.G., 736 F.2d 1474

(11th Cir. 1984), adopted the reasoning of Vancier and held

that a court could not review the correctness of a § 5032

certification asserting that an appropriate state court did

not have jurisdiction over the juvenile. See id. at 1477-78.

The Eleventh Circuit suggested, however, that it could

review a certification to ensure that the certifying party was

authorized under the statute, that the certification was

timely filed, and that it stated the appropriate statutory

factors that give rise to federal jurisdiction. See id. at 1477.

The court also suggested that it would be appropriate to

inquire into whether the certification was made in bad

faith. See id. at 1478; see also United States v. Wellington,

102 F.3d 499, 503-05 (11th Cir. 1996) (reaffirming the

holding of C.G.). Similarly, the Ninth Circuit held that

"[w]here . . . a certificate was timely filed, and that

certificate appeared regular on its face, the trial judge has

no duty independently to investigate and determine if the

certificate refers to the proper state court." United States v.

Gonzalez-Cervantes, 668 F.2d 1073, 1078 (9th Cir. 1981).

In 1984 Congress amended § 5032, adding the option

that a prosecutor's certification could include the statement

that the crime charged was one of violence or was one

specifically enumerated. In United States v. Juvenile Male,

923 F.2d 614 (8th Cir. 1991), the juvenile challenged the

certification of the charged offense as a crime of violence.

See id. at 616. The court held that review of a § 5032

certification that the juvenile was charged with a crime of

violence was appropriate. The court summarized Vancier

and C.G. and then concluded that "[n]either of the . . . cases

persuades us that we cannot review certification here." See

id. at 617. The Eighth Circuit believed both that it had a

standard against which to judge the correctness of the

certification (whether a crime is one of violence is a legal

question) and that it was merely ensuring that the form of

the certification was correct (a certification based on the

type of crime charged must state one of the crimes

enumerated in the statute (a crime of violence is an

enumerated crime)). See id. at 617.

8

We do not, however, read the Eighth Circuit as generally

allowing review of a § 5032 certification, or departing from

the general principles established in the cases cited above.

Rather, the holding in Juvenile Male is limited to review of

whether the crime for which the juvenile was charged was

actually a crime of violence. The Eighth Circuit's reasoning

is consistent with the opinions that have not allowed review

of a § 5032 certification; those opinions focused on different

aspects of the certification decision, aspects that focused on

prosecutorial discretion, and the lack of standards guiding

review of the decision to certify. Such concerns, as the

Eighth Circuit pointed out, are not implicated by a

certification that a crime is one of violence, because

whether a crime is one of violence is determined by

congressionally created statutory standards. See id. at

617-18. Our view of Juvenile Male is bolstered by the

Second Circuit's recent decision in United States v. Doe, 49

F.3d 859 (2d Cir. 1995). In Doe, the Second Circuit also

reviewed a § 5032 certification to determine whether the

crime charged was one of violence. See id. at 866-67.4

The 1984 amendments also added the language requiring

that the Attorney General or her designee certify "that there

is a substantial Federal interest in the case or the offense

to warrant the exercise of Federal jurisdiction." 28 U.S.C.

§ 5032. Although an argument can be made that this

language introduced an articulable standard against which

a court could review certain aspects of certification

decisions, courts have been unimpressed with that

contention and have held that this aspect of the

certification decision, like the other aspects described

above, is unreviewable. The Eleventh Circuit so held in

United States v. I.D.P., 102 F.3d 507 (11th Cir. 1996),

stressing that, although the statute provided a list of

factors for a court to consider in determining whether to

grant a motion to transfer, none was a factor by which a

_________________________________________________________________

4. Interestingly, the court cited to Juvenile Male, but did not cite to

Vancier. We assume that the court did not intend to overrule Vancier;

therefore, we also assume that the court believed it was acting

consistently with Vancier. In other words, Doe can be read to mean that

the Second Circuit allows review of some aspects of a § 5032

certification, but not others, the very conclusion we reach here.

9

court could meaningfully determine whether there existed a

substantial federal interest. See id. at 511.

The court further reasoned that the determination

whether a particular case presented a substantial federal

interest was an administrative decision that turned on law

enforcement considerations such as the general incidence

of crime, the need for deterrence, enforcement priorities,

and the like. See id. at 511-12. Such decisions, it noted,

are best left to the prosecutors. Finally, the court examined

the legislative history of the 1984 amendment, and

concluded that this history suggested that Congress

intended the decision whether there existed a substantial

federal interest to be left to the discretion of the Attorney

General, qualified by a number of limiting factors not

contained in the statute itself. See id. at 512-13.

The only case finding a certification of a substantial

federal interest to be reviewable is United States v. Juvenile

Male #1, 86 F.3d 1314 (4th Cir. 1996). In Juvenile Male #1,

the juvenile had moved to dismiss the case against him in

federal court on the grounds that the § 5032 certification

was improper because the case did not present a

substantial federal interest, and the district court denied

his motion. The appeals court began by examining whether

the district court had jurisdiction to review a § 5032

certification at all.5 It first noted that the lack of a specific

provision calling for judicial review does not bar review, and

asserted that there is a strong presumption that Congress

_________________________________________________________________

5. The court stated that "[i]t should be beyond serious argument that the

courts should review compliance with the essentially technical

requirements of § 5032, such as the proper certifying party, timeliness of

the certification, inclusion of the statutory language, or the age of the

juvenile." See Juvenile Male #1, 86 F.3d at 1319 (citations omitted). We

agree, and would add that we may review whether the certification was

made in bad faith. We note that the appellant here does not challenge

the § 5032 certification for technical defects. There is no suggestion that

the form of the certification is incorrect (for example, whether a

prosecutor certified that the juvenile is charged with a crime not

enumerated in the statute), that the certification was untimely filed, that

an improper official made the certification, or that it was made in bad

faith or for an improper purpose. Nor does evidence of such appear in

the record.

10

intends judicial review. See id. at 1319-20. And, the court

continued, it could find nothing in the statute that

overcomes this strong presumption in favor of reviewability.

See id. at 1320. The court concluded its brief discussion by

noting that it would give primary attention to the needs of

rehabilitation in construing the juvenile statutes. See id. In

reaching its conclusion, the court relied on Gutierrez de

Martinez v. Lamagno, ___ U.S. ___, 115 S. Ct. 2227 (1995),

a case from which the concurrence also draws significant

support, for the proposition that executive determinations

are generally subject to judicial review. See Juvenile Male

#1, 86 F.3d at 1319.

Chief Judge Wilkinson, in his concurring opinion,

reached the conclusion that such certifications are

unreviewable. Judge Wilkinson began by noting that the

statute contains no provision explicitly allowing for judicial

review of § 5032 certifications, though it does provide for

judicial review of the second step -- the motion to transfer

the juvenile. See United States v. Juvenile Male #1, 86 F.3d

1314, 1324 (4th Cir. 1996) (Wilkinson, C.J., concurring).

More importantly, he stressed that the statute does not set

out standards by which a court is to review the

certification, whereas, in contrast, the statute includes a

list of factors a court is to consider when determining

whether the motion to transfer the juvenile is appropriate.

See id. at 1324-25.6 This lack of guidance suggested to

Judge Wilkinson that Congress intended the determination

whether to issue a certification to be left to the discretion

of the Attorney General, limited only by the requirement

that the case present a substantial federal interest. See id.

at 1325.

Whether a case presents a substantial federal interest,

Judge Wilkinson continued, turns on policy-based

determinations of law enforcement priorities that are best

left to the prosecutors. See id. Judge Wilkinson feared that

allowing courts to review § 5032 certification decisions

_________________________________________________________________

6. For permissive transfers, these factors include the six aspects of the

"interest of justice" standard; for mandatory transfers, these factors

include the age of the juvenile, the type of offense for which he has been

charged, and his past criminal record. See supra at part I.

11

would engender interbranch conflict as courts would

second-guess decisions decidedly executive (not judicial) in

nature. See id. at 1325-26. Judge Wilkinson compared the

§ 5032 certification decision to other, similar prosecutorial

decisions that have traditionally been unreviewable. See id.

at 1326. Finally, Judge Wilkinson distinguished Gutierrez

de Martinez. He noted that in Gutierrez de Martinez the

certification at issue was " `dispositive of a court

controversy.' " Id. at 1326 n.2 (quoting Gutierrez de

Martinez, 115 S. Ct. at 2231).7 In such circumstances,

judicial review is expected. However, § 5032 certifications,

Judge Wilkinson notes, are not dispositive of the

controversy. See id. In other words, a § 5032 certification

does not prevent judicial review of all aspects of the

relevant case. The concerns animating the Court in

Gutierrez de Martinez, then, do not apply in§ 5032

certifications.

We agree with Judge Wilkinson's reasoning and

observations, adding a few comments about the federalism

concerns implicated by § 5032 certifications upon which the

concurring opinion relies. Whether a case presents a

substantial federal interest does, of course, implicate

federalism concerns. Such concerns, rooted in the debate

over the proper relationship between the states and the

federal government, are different in kind from law

enforcement considerations. Concerns over law enforcement

are best left to the discretion of prosecutors closest to these

problems. Concerns over federalism, in contrast, might

seem more properly considered by the courts. That review

in contexts such as that presented here, however, depends

on adequate statutory standards, and those standards are

lacking. Even if they were present, the other factors

weighing against judicial review of a certification of

substantial federal interest (mentioned during our

summary of the case law in the area) clearly prevail.

The concurring opinion observes that the federal courts

are experienced in making judgments as to matters such as

_________________________________________________________________

7. Judge Wilkinson also noted that the Attorney General had argued in

favor of judicial review. See Juvenile Male #1, 86 F.3d at 1326 n.2

(Wilkinson, C.J., concurring).

12

what constitutes a substantial federal interest. We do not

know specifically what the concurrence has in mind, but we

know of no satisfactory formula for making such judgments

within the framework of our jurisprudence.8 At all events,

the exercise at issue here is more akin to policy making.

The remaining rationale of the concurring opinion strikes

us as somewhat ephemeral. It suggests that Congress

added the substantial federal interest requirement with the

intent of reminding federal prosecutors of the strong

interest the states have in juvenile justice. It also draws

support from the fact that the decision to certify has been

delegated to local United States Attorneys who may be

subject to parochial concerns, thereby lessening their

concern with the interests of federalism. These reasons

seem speculative to us, and do not, in our view, reveal a

congressional intent that the substantial federal interest

certification be subject to judicial review. At all events, the

arguments do not countervail the forceful contentions

marshaled by our sister circuits in the opinions we have

_________________________________________________________________

8. The concurring opinion points to language in the legislative history of

the 1984 amendments and suggests that such language provides some

guidance as to what constitutes a substantial federal interest. That

language, however, only provides examples. And, unfortunately, those

examples are, for the most part, crimes that make up only a minuscule

fraction of total federal crime, e.g., assaults on federal officials, hijacking,

kidnaping, major espionage, and significant destruction of federal

property. The only example given in the legislative history that deals with

frequently occurring crimes is large-scale drug trafficking. It is

interesting to note in this regard that federal courts have concurrent

jurisdiction with the state courts over drug crimes, and the decision

whether to prosecute drug crimes in the federal courts is generally left

to the discretion of federal prosecutors.

As an example of the difficulty presented by endeavoring to define

standards against which phrases such as "substantial federal interest"

can be measured, we suggest examining the Judicial Conference's

attempts to draw the contours of the kinds of cases that ought to

command the attention of federal courts. Despite the years of effort that

went into its drafting, the Long Range Plan for the Federal Courts

ultimately adopted provisions that are quite broad, and scarcely provide

the calipers for making the kind of determination for which the

concurrence would call. See Judicial Conference of the United States,

Long Range Plan for the Federal Courts 22-30 (1995).

13

summarized (and, in large measure, endorsed). The

concurrence also notes that there must be a "finding" of a

substantial federal interest, and reasons that this suggests

judicial determination. We find this argument

unpersuasive.

We follow Judge Wilkinson's lead and that of Vancier and

its progeny discussed above, and hold that, while we have

jurisdiction to review a § 5032 certification only for

technical defects, for whether a crime is one of violence,

and for whether the certification was made in bad faith or

for improper purposes, we have no jurisdiction to review

the other aspects of a § 5032 certification, namely whether

a state court will assume jurisdiction, whether the state

has adequate programs for juveniles, and whether there is

a substantial federal interest.9

B. Was the Certification Proper?

Having determined the extent of reviewability, we turn to

the question whether the United States Attorney's § 5032

certification was proper. The United States Attorney

certified that the Virgin Islands had refused to exercise

jurisdiction over the prosecution of the case, that the

crimes for which the juvenile was charged were ones of

violence, and that the case presented a substantial federal

interest. The juvenile argues that the certification was

improper for two reasons. First, he claims that one of the

crimes for which he was charged, possession of a firearm,

is not a crime of violence.10 Second, he contends that the

case does not present a substantial federal interest.

_________________________________________________________________

9. In our discussion, we have summarized precedent from other circuits

addressing the reviewability of certifications based on the type of crime

charged and based upon the lack of or refusal to assume jurisdiction

over the juvenile by a state court. We are unaware of any court decision

addressing a certification based upon the availability of services for the

juvenile. It would appear, however, that such certifications should not be

subject to review for the same reasons that we do not review whether

there is a state court that will assume jurisdiction over the prosecution

of the case, i.e., the lack of statutory standards and the similarity of the

determination to unreviewable executive decisions.

10. The juvenile was also charged with crimes that are indisputably

crimes of violence. The juvenile is effectively arguing that the existence

14

Under § 5032, the federal prosecutor need only certify to

one of the following: (1) that there is no appropriate state

court to exercise jurisdiction over the juvenile; (2) that the

state has inadequate programs to address juvenile

delinquency; or (3) that the crime charged was a crime of

violence or was enumerated in the statute, and there was

a substantial federal interest sufficient to warrant the

exercise of jurisdiction. Because the federal prosecutor here

certified that no state court would exercise jurisdiction over

the prosecution of the juvenile, which as we have explained

is non-reviewable, there is no need also to certify that the

juvenile has been charged with a crime of violence, and that

there existed a substantial federal interest. We need not,

therefore, discuss whether the challenged crime is one of

violence or whether a substantial federal interest is present.

In short, the federal prosecutor has fulfilled the statutory

requirements of certification in such a manner so as to

effectively insulate the certification from our review.

IV. MANDATORY TRANSFER UNDER § 5032

We turn finally to the second step in the § 5032 exercise

-- the question of the correctness of the district court's

order transferring the juvenile to adult status. Our

standard for reviewing such an order is not clear. We have

previously stated that we review the district court's decision

to transfer under the § 5032 permissive transfer provisions

for abuse of discretion. See United States v. A.R., 38 F.3d

699, 702 (3d Cir. 1994). Here, however, the district court

approved the transfer of the juvenile to federal district court

under the so-called mandatory transfer provisions of

§ 5032. Because the § 5032 mandatory transfer provisions

require the district court to order a transfer given certain

factual and legal predicates, we believe an abuse of

discretion standard is inappropriate. Rather, we will subject

_________________________________________________________________

of one non-violent crime amidst a slew of violent crimes renders the

certification improper, at least with respect to that one non-violent crime

but possibly to all the charged crimes. We need not reach this question,

however, because, as we will make clear in the text, the possession crime

is clearly one of violence.

15

the district court's legal conclusions to plenary review and

its factual findings to clearly erroneous review.

Under the mandatory transfer provisions, and contingent

on a proper certification, a juvenile's case must be

transferred to federal district court if three factors are

present. First, the juvenile must have committed the act in

question after his sixteenth birthday. Second, the charged

offense must be a felony that either "[(1)] has as an element

thereof the use, attempted use, or threatened use of

physical force against the person of another, or[(2)] by its

very nature, involves a substantial risk that physical force

against the person of another may be used in committing

the offense," or is one that has been enumerated in the

statute. Third, the juvenile must previously have been

convicted of a crime that satisfies the second factor.

The juvenile does not challenge the district court's

findings as to the first and third factors (he committed the

act in question while he was seventeen years old, and he

has previously been found guilty of robbery in thefirst

degree). We see no reason to question them. Turning to the

second factor, the juvenile was charged with violating

§ 2251(a)(2), which prohibits the possession of dangerous

weapons; Section 2251(a)(2) is a felony because it is

punishable by a term of imprisonment greater than one

year. See 18 U.S.C. § 1(1) (defining felony as "[a]ny offense

punishable by death or imprisonment for a term exceeding

one year"). The juvenile nonetheless contends that the

possession crime for which he was charged still does not

satisfy the second factor in the § 5032 mandatory transfer

provisions.11

_________________________________________________________________

11. The juvenile's argument assumes that for the purposes of § 5032 we

may look only to the conduct alleged in the possession count to

determine whether § 2251(a)(2) satisfies the requirements of the second

part of the second factor of the § 5032 mandatory transfer provisions. In

other words, the juvenile seems to assume that § 5032 requires a

categorical approach, rather than a fact-specific approach, to

determining whether a particular crime satisfies the § 5032

requirements. That assumption draws support from our discussion of

the definition of a crime of violence in the Sentencing Guidelines. See

United States v. Joshua, 976 F.2d 844, 850-56 (3d Cir. 1992). In Joshua,

16

The crime challenged by the juvenile punishes those who,

"with intent to use the same unlawfully against another,

has, possesses, bears, transports, carries or has under his

proximate control, a dagger, dirk, dangerous knife, razor,

stiletto, or any other dangerous or deadly weapon." V.I.

Code Ann. tit. 14, § 2251(a)(2) (emphasis added). Clearly,

§ 2251(a)(2) does not satisfy the requirements of the first

part of the second factor, because no element of

§ 2251(a)(2) involves the "use, attempted use, or threatened

use of physical force." However, just as clearly, § 2251(a)(2)

satisfies the requirements of the second part of the second

factor, which requires that the charged offense by its very

nature involves a "substantial risk that physical force . . .

may be used" during the commission of the crime. 12 Section

§ 2251(a)(2) includes as an element the intent to use a

dangerous weapon. Certainly, if someone intends to use a

dangerous weapon then there is "substantial risk that

physical force . . . may be used." Therefore, § 2251(a)(2)

_________________________________________________________________

we held that "a sentencing court should look solely to the conduct

alleged in the count of the indictment charging the offense of conviction

in order to determine whether that offense is a crime of violence"

because it creates a risk of the use of physical force. Id. at 856. In our

discussion, we assume, though do not hold, that we may not look

beyond the possession count to determine if the requirements of § 5032

are met. If we were to consider the charged conduct beyond the

possession count, the requirements of § 5032 would surely be met; the

juvenile brandished the weapon, pointed it at one of the victims, and, at

some point, fired it, thereby creating a substantial risk of the use of

physical force.

12. Our conclusion that § 2251(a)(2) is a crime of violence is supported

by analogy to 18 U.S.C. § 16. The phrase crime of violence, though not

defined in § 5032, is defined at 18 U.S.C. § 16. The language of the

second factor of the § 5032 mandatory transfer provisions tracks the

language of § 16 in all relevant respects. Under § 16, a crime of violence

means either "(a) an offense that has as an element the use, attempted

use, or threatened use of physical force . . . or (b) any other offense that

is a felony and that, by its nature, involves substantial risk that physical

force against the person or property of another may be used in the

course of committing the offense." Section 2251(a)(2) satisfies the

requirements of § 16(b), just as it satisfied the requirements of the

second part of the second factor of the § 5032 mandatory transfer

provisions.

17

satisfies the second factor of the § 5032 mandatory transfer

provisions.13

_________________________________________________________________

13. Experience with the career offender provisions of the Sentencing

Guidelines is instructive in interpreting § 2251(a)(2). To qualify as a

career offender under the Sentencing Guidelines, an offender, inter alia,

must have been convicted of two previous felony crimes of violence or

felony crimes involving controlled substances. See 1995 U.S.S.G.

§ 4B1.1. Pursuant to the Guidelines, a crime that "involves conduct that

presents a serious potential risk of physical injury to another" is a crime

of violence. See id. § 4B1.2(1)(ii). Prior to the amendment, this definition

generated controversy when applied to the felon-in-possession of a

firearm crime. See 18 U.S.C. § 922(g)(1). Under § 922(g)(1), it is a crime

for a person who has previously been convicted of a felony merely to

possess a firearm. See id. "[A] substantial body of Circuit precedent" held

that a felon-in-possession crime constituted a crime of violence under

the Guidelines. Stinson v. United States, ___ U.S. ___, 113 S. Ct. 1913,

1916 & n.1 (1993).

Typical of the reasoning holding that a felon-in-possession crime is

categorically a crime of violence is the discussion in United States v.

O'Neal, 910 F.2d 663 (9th Cir. 1990). In O'Neal, the court reasoned that

an armed felon, without more, poses a substantial threat of the use of

physical force. See id. at 667. In other words, mere possession of a

weapon by a felon is enough, because by past deeds that felon has

shown the willingness to engage in criminal activity and this willingness

may now include the use of the weapon he possesses. See id.; see also

United States v. Stinson, 943 F.2d 1268, 1271-73 (11th Cir. 1991),

vacated on other grounds, 113 S. Ct. 1913 (1993). In contrast, we had

held that mere possession, without more, by a felon was not a crime of

violence under the pre-amendment career offender guidelines. See United

States v. Williams, 892 F.2d 296, 304 (3d Cir. 1989) Because of cases

like O'Neal, the Sentencing Commission amended the Application Notes

to § 4B1.2 specifically to exclude the felon-in-possession crime from the

definition of crime of violence for purposes of the career offender

guidelines. See 1992 U.S.S.G., App. C, Amend. 461.

The felon-in-possession crime cases are instructive here because they

rely on the reasoning that mere possession may imply intent to use. The

intent to use, in turn, creates the substantial risk of the use of physical

force. The amendment to the Guidelines eliminated the inferential leap

courts had been taking in interpreting § 922(g)(1); in other words, the

Sentencing Commission made it impermissible for a court to infer for the

purposes of the career offender guidelines that the status of being a felon

in possession of a weapon implied that the felon intended to use the

weapon. The amendment did not, however, affect the reasoning that the

intent to use a weapon created a substantial risk of the use of physical

18

Because we believe the district court did not err in

finding that each of the three mandatory transfer provision

factors were present in this case, we hold that the court

properly transferred the juvenile to federal court for

criminal prosecutions.

The order of the district court will be affirmed.

_________________________________________________________________

force. At least a part of the reasoning of the felon-in-possession crime

cases survives, the part we rely on here.

At all events, § 2251(a)(2) includes as an element the intent to use the

weapon the individual possesses. (Section 922(g)(1) does not include

intent as an element.) Section 2251(a)(2), then, requires proof of the very

element that courts interpreting § 922(g)(1) had been inferring. With

proof that a defendant intends to use the weapon he possesses, a court

can look to the felon-in-possession crime cases to reason that such a

defendant poses a substantial risk of the use of physical force. We do so

here.

19

WEIS, Circuit Judge, concurring.

I.

Analysis of the scope of judicial review of the

government's certification under the Juvenile Delinquency

Act, 18 U.S.C. § 5032, must begin with the following

statement from the Supreme Court: "[W]e have stated time

and again that judicial review of executive action`will not

be cut off unless there is persuasive reason to believe that

such was the purpose of Congress.' " Gutierrez de Martinez

v. Lamagno, 115 S.Ct. 2227, 2231 (1995) (quoting Abbott

Labs. v. Gardner, 387 U.S. 136, 140 (1967)). Conceding

that the statute under consideration in that case was

susceptible to divergent interpretations, the Court adopted

a construction consistent with "traditional understandings

and basic principles: that executive determinations

generally are subject to judicial review and that mechanical

judgments are not the kind federal courts are set up to

render." Id. at 2236.

Using Lamagno as a guide, the question is whether there

is "persuasive reason" to believe that Congress intended to

limit the scope of judicial review of section 5032

certifications to technical compliance and prosecutorial bad

faith. Not only do careful studies of the statutory language

and its legislative history fail to reveal a convincing ground

to limit judicial review, they also disclose Congress' deep

concern for principles of federalism that might be

jeopardized by overzealous federal prosecution.

The 1984 amendments to section 5032 expanded the

bases for transferring a case from state to federal

jurisdiction. If the felony offense is a "crime of violence" or

one of those offenses specifically described in the

amendments, and "there is a substantial Federal interest in

the case or the offense," the prosecution may proceed in the

federal courts.

The Senate Report that accompanied the amendments

acknowledged that the traditional policy of state

predominance in this area survived. Explaining the narrow,

federal inroad into state jurisdiction over juvenile

delinquency proceedings, the Senate Committee stated:

20

The essential concepts of the 1974 Act are that juvenile

delinquency matters should generally be handled by

the States and that criminal prosecution of juvenile

offenders should be reserved for only those cases

involving particularly serious conduct by older

juveniles. The Committee continues to endorse these

concepts, but has determined that certain

modifications in current law are necessary to allow an

adequate Federal response to serious criminal conduct

on the part of juveniles.

S.Rep. 98-225 at 386 (1984) reprinted in 1984 U.S.C.C.A.N.

3182, 3526.

The Committee also cautioned that "a determination that

there is a `substantial Federal interest' " be grounded 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 kidnaping where State boundaries are crossed, a

major espionage or sabotage offense, participation in

large-scale drug trafficking, or significant and willful

destruction of property belonging to the United States.

Id. at 389 reprinted in id. at 3529.

By requiring a certification by the Attorney General,

Congress emphasized that the decision to place a juvenile

case within federal jurisdiction must be neither casual nor

routine, but should be carefully considered. The existence

of this restraint is in sharp contrast to the typical adult

criminal case in which a federal prosecutor may choose to

indict for a federal crime even when the underlying conduct

may also violate state law. In such a situation, of course,

the prosecutor enjoys wide discretion that, significantly, is

unfettered by a certification requirement.

Rather than extend such unlimited discretion to the

prosecutor's decision to initiate juvenile proceedings in

federal court, Congress included the certification

requirement to remind federal prosecutors of the strong

interests that states have in juvenile justice. That

21

consideration leads to the related inference that, rather

than being adverse to judicial review, Congress approves it

as a method of enforcing its policy in favor of state primacy

in juvenile delinquency proceedings.

Additional support for this view is supplied by the

Committee's assertion that the determination of a

"substantial federal interest" be based on a "finding" of

special federal concerns. Use of the term "finding"

reasonably implies that a judicial proceeding was

contemplated.

Finally, we should not discount the significance of 28

C.F.R. § 0.57 (1996), through which the Attorney General

has delegated to the United States Attorney in the

appropriate district the authority to provide the requisite

certification. The certification process, therefore, is not

administered at the national level, but is applied in a local

context where parochial concerns become more influential.

Federal courts manage caseloads that are far more

diverse than those of local federal prosecutors and, as a

result, have a greater familiarity with the complexities of

federalism. Given the experience of the federal bench in

questions of federal-state relations, it would be expected

that Congress would vest oversight of these important

procedures in the judiciary rather than in the local United

States Attorney. At the very least, that inference should

govern absent a clear indication to the contrary from

Congress.

The strong language in Lamagno favoring judicial review

differs dramatically from the view taken by the Courts of

Appeals in United States v. Vancier, 515 F.2d 1378 (2d Cir.

1975), and to a lesser extent, United States v. C.G., 736

F.2d 1474 (11th Cir. 1984). Those opinions take a

restrictive approach to judicial review of certifications under

18 U.S.C. § 5032. Both pre-dated Lamagno and,

consequently, their persuasive value has been substantially

undermined. In addition, the "substantial federal interest"

qualification, which was added to the Juvenile Delinquency

Act in 1984, also post-dates those two cases.

In United States v. I. D. P., 102 F.3d 507, 511-13 (11th

Cir. 1996), the Court of Appeals for the Eleventh Circuit

22

chose to follow C.G., and to distinguish Lamagno, in

holding that the courts may not review certifications to

determine the existence of a substantial federal interest. In

its review of the legislative history, I.D.P. observed that the

Senate Report referred to a predecessor bill that set forth

standards for the Attorney General to follow. The Court,

however, did not discuss the fact that the earlier bill

contained a provision barring judicial review of

certifications -- a provision that eventually was removed. In

my view, the deliberate deletion of that prohibition not only

shows that Congress knew how to ban review if it wished

but also that it had rejected the proposal.

The Court of Appeals for the Fourth Circuit took a

different approach than I.D.P. in United States v. Juvenile

Male #1, 86 F.3d 1314 (4th Cir. 1996) when it relied upon

the traditional congressional preference for having juvenile

matters handled in state courts, even though federal

jurisdiction had been expanded in the 1984 amendments to

the Juvenile Delinquency Act. Viewing the legislative history

as inconsistent with the grant of unreviewable discretion to

the prosecutor, Juvenile Male #1 held that the strong

presumption in favor of judicial review so forcefully

reiterated in Lamagno must prevail. Id. at 1321. Although

the Juvenile Male #1 Court did not use the term

"federalism," that consideration was at the core of its

reasoning.

Those Courts that deny review of the certification process

except for technical compliance and bad faith cite the lack

of standards in the statutory language for substantive

review. See C.G., 736 F.2d at 1478; Vancier, 515 F.2d at

1380. This reasoning is somewhat puzzling. It implies that

the United States Attorneys will be able to apply the statute

despite the absence of standards, but that the courts are

unable to cope with the task of review in similar

circumstances. If the federal prosecutors had the same

broad discretion as they do when adult prosecutions are

contemplated, that rationale might be justified. But, as

noted earlier, Congress made it clear that the federal

prosecutor's authority in the juvenile delinquency setting

remains limited. Moreover, judicial deference is especially

questionable here because at stake are issues of federalism

23

and the limitations of federal prosecutorial authority --

areas in which Congress reasonably could expect the

courts' perspective to be more objective than that of the

United States Attorneys.

The legislative history of the 1984 amendments, which

explicitly stated that "the Federal Government will continue

to defer to State authorities for less serious juvenile

offenses," addresses this concern. The Senate Report cited

certain examples of offenses raising special federal

interests. Although Congress did not repeat these

standards in the statute itself, they are helpful guideposts,

and there is no indication that Congress intended them to

inform the prosecutor's decision, but not the court's.

Finally, the search for a substantial federal interest

cannot be any more difficult than, for example, "the judicial

struggle to interpret the Commerce Clause during the

transition from the economic system the Founders knew to

the single, national market still emergent in our own era."

United States v. Lopez, 115 S.Ct. 1624, 1634 (1995)

(Kennedy, J., concurring). Whether the interpretative

question is constitutional or statutory, the judiciary must

provide an answer no matter how nebulous the standard. I

believe that the federal courts have both the competence

and the duty to review the certifications in section 5032

and that we should undertake that task in this case.

II.

I agree with the majority that the dispositive issue in this

case is whether it was properly transferred under clause (1)

of § 5032 because the Territorial Government had

relinquished jurisdiction. To arrive at its conclusion, the

majority says it is bound to accept the certification's

statement to that effect because it is unreviewable.

Rather than simply accept the United States Attorney's

certification on its face, I have reviewed the record and

found that it provides undisputed evidence that the

Attorney General of the Virgin Islands abandoned its

prosecution of the juvenile and so informed the United

States Attorney. I perceive no difference between a state's

refusal to assume jurisdiction from the outset, see United

24

States v. Hill, 538 F.2d 1072, 1077 (4th Cir. 1976), and a

state's agreement to relinquish jurisdiction after charges

have been filed. Neither situation presents a conflict of the

sovereigns' interests. When the state agrees to step aside,

federalism concerns fade into the background. The

certification therefore withstands review.

In addition, I fully agree with the majority's opinion that,

after assuming jurisdiction, the district court properly

invoked the mandatory transfer provision of section 5032

for treating defendant as an adult.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

25