IN RE: A.M.

• Court: Court of Appeals for the Third Circuit
• Decided: August 15, 1994
• Docket: 93-7736
• Status: Unknown

Opinion

Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit

8-15-1994

IN RE: A.M. Precedential or Non-Precedential:

Docket 93-7736

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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 93-7736 ____________

GOVERNMENT OF THE VIRGIN ISLANDS IN THE INTEREST OF: A.M., A Minor,

A.M., A Minor, Appellant

____________________

ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS Division of St. Thomas and St.John (D.C. Criminal No. 92-00071) ____________________

Argued: April 18, 1994 Before: STAPLETON, ALITO, and WEIS, Circuit Judges

(Opinion Filed: August 16, 1994)

BRENDA SCALES (Argued) Territorial Public Defender 8191 Subbase, Ste. 16 P. O. Box 6040 Charlotte Amalie St. Thomas, VI 00804

Attorney for the Appellant

ROSALIE SIMMONDS BALLENTINE Attorney General

PAUL L. GIMENEZ Solicitor General

ROBERT BORNHOLT (Argued) DEANA M. BOLLING Assistant Attorney General DEPARTMENT OF JUSTICE 8050 Kronprindsens Gade, Suite 1 Charlotte Amalie St. Thomas, VI 00802

Attorney for Government of the Virgin Islands

OPINION OF THE COURT ____________________

ALITO, Circuit Judge:

This appeal concerns an order transferring a juvenile

for prosecution as an adult. We hold that such a transfer order

is subject to pretrial appeal under the collateral order

doctrine, and we reject the juvenile's argument that the

transferring court committed various procedural errors, including

the admission of hearsay in violation of due process and Virgin

Islands law. We therefore affirm the decision of the Appellate

Division of the District Court, which sustained the transfer.

I.

In November 1991, a juvenile delinquency complaint was

filed against A.M., who was then 16 years old. The complaint

alleged that, on the previous day, A.M. had engaged in conduct

that, if committed by an adult, would have constituted the

felonies of first-degree rape, first-degree unlawful sexual

contact, first-degree assault, conspiracy, and kidnapping for

rape. In early December 1991, the Government of the Virgin

Islands filed a motion requesting that A.M. be transferred for

prosecution as an adult. After a hearing in May 1992, the Family

Division of the Territorial Court issued an order granting that motion. In October 1992, the Appellate Division of the District

Court affirmed that order, and A.M. then took this appeal to our

court.

II.

Before addressing A.M.'s arguments, we will first

explain why we have jurisdiction to entertain his appeal. Under

28 U.S.C. § 12911 and 48 U.S.C. § 1613a(c),2 we have jurisdiction

over all "final decisions" of the District Court of the Virgin

Islands, including "all final decisions of the district court on

appeal from the courts established by local law," 48 U.S.C. §

1613a(c). Although the Appellate Division order from which this

appeal was taken is not a "final order" in the ordinary sense,

four other courts of appeals have held that district court orders

transferring juveniles for prosecution as adults under the

federal transfer statute, 18 U.S.C. § 5023, fall within the

1 . 28 U.S.C. § 1291 provides in pertinent part:

The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. 2 . 48 U.S.C. § 1613a(c) provides in pertinent part:

The United States Court of Appeals for the Third Circuit shall have jurisdiction of appeals from all final decisions of the district court on appeal from the courts established by local law. collateral order doctrine and are therefore appealable before

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

States v. Smith, 851 F.2d 706 (4th Cir. 1988), cert. denied, 112

S. Ct. 414 (1991); United States v. A.W.J., 804 F.2d 492 (8th

Cir. 1986); United States v. C.G., 736 F.2d 1474 (11th Cir.

1984). Cf. Guam v. Kingsbury, 649 F.2d 740 (9th Cir. 1981),

cert. denied, 454 U.S. 895 (1981) (holding, based on different

reasoning, that transfer order under Guam statute is subject to

pretrial appeal). These four courts of appeals have reasoned

that such orders represent the district court's final decision on

the transfer question, that this question is separate from the

merits of the prosecution, and that the denial of appellate

review until after the juvenile has been tried as an adult would

cause the irreparable loss of some of the statutory protections

offered to juvenile offenders, such as protection from

disclosure of court records. For essentially the reasons

explained in these decisions, we are persuaded that the Appellate

Division's order in this case falls within the collateral order

doctrine and is thus appealable.

We likewise hold that the Appellate Division of the

District Court had jurisdiction to hear A.M.'s appeal from the

decision of the Family Division of the Territorial Court. Under

48 U.S.C. § 1613a(a), the District Court currently has "such

appellate jurisdiction over the courts of the Virgin Islands

established by local law," and V.I. Code Ann. Tit. 5, § 2508(d)

specifically provides that a juvenile transfer order of the

Family Division is a "final appealable order." Moreover, the general appellate jurisdiction of the District Court extends at

least to review of "final" decisions of the Territorial Court,3

and the Territorial Court's transfer order in this case was, as

previously discussed, "final" within the meaning of the

collateral order doctrine.

While we thus hold that transfer orders such as the one

at issue in this case are subject to two levels of appellate

review, we must express our concern about the potential for delay

that such appeals may produce. In the future, we believe that

appeals of transfer orders should be treated much like appeals of

detention orders. See 18 U.S.C. § 3145(c). The parties should

alert the Appellate Division and our court to the nature of the

appeal and request expedited disposition. The parties should

then be required to comply with short briefing deadlines;

extensions should be granted only in extreme situations; and such

cases should be given priority on the docket.

3 . V.I. Code Ann. tit. 4, § 33, provides that the district court has appellate jurisdiction to review the "judgments and orders" of the territorial court in all juvenile and domestic relations cases, as well as in "all civil cases" and "all criminal cases in which the defendant has been convicted, other than on a plea of guilty." The District Court of the Virgin Islands has interpreted this reference to "judgments and orders" as meaning "final judgments and orders." Creque v. Roebuck, 16 V.I. 225, 227 (D.V.I. 1979) (emphasis in original). See also, e.g., Government of the Virgin Islands v. deJongh, D.C. Civ. App. No. 92-214, 1993 U.S. Dist. LEXIS 9402 (1993); Archer v. Aero Virgin Islands Corp., D.C. Civ. App. No. 92-18 (D.V.I. Sept. 28, 1992). Assuming for the sake of argument that V.I. Code Ann. tit. 4, § 33, contains this limitation, we nevertheless hold, for the reasons explained in text, that the Territorial Court's order was appealable. III.

Turning to the merits of this appeal, we first address

A.M.'s argument that the Family Division judge did not properly

consider the likelihood of his rehabilitation if he was found to

have committed the alleged offenses. Under the transfer

provision applicable here, V.I. Code Ann. tit. 5, § 2508(a), the

Family Division "may" transfer a juvenile for adult prosecution

if the juvenile was at least 16 years old at the time of the

alleged offense, and the alleged offense would constitute a

felony if committed by an adult. While this provision commits

the transfer decision to the sound discretion of the Family

Division,4 another provision, V.I. Code Ann. tit. 5, § 2509(d),

provides that evidence of seven specified factors "shall be

considered in determining transfer." These factors are: (1) the seriousness of the alleged offense to the community and whether the protection of the community requires waiver;

(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

(3) whether the alleged offense was against property, greater weight being given to offenses against persons, especially if personal injury resulted;

(4) whether there is probable cause to believe that the offense charged has been committed and that the child has committed it;

4 . Cf. United States v. G.T.W., 992 F.2d 198, 199 (8th Cir. 1993) (federal transfer statute); United States v. Romulus, 949 F.2d 713, 715 (4th Cir. 1991), cert. denied, 112 S. Ct. 1690 (1992); United States v. Doe, 871 F.2d 1248, 1252 (5th Cir.), cert. denied, 493 U.S. 917 (1989). (5) the sophistication and maturity of the child as determined by consideration of his home, emotional attitude and pattern of living;

(6) the record and previous history of the juvenile, including previous contacts with the Youth Services Administration, law enforcement agencies and courts, and prior periods of probation or prior commitments to residential institutions;

(7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child, if found to have committed the alleged offenses.

Id. (emphasis added).

In deciding that A.M. should be transferred, the Family

Division judge specifically discussed all of these factors,

including the factor of rehabilitation. In her oral findings,

she noted that the only witness who testified concerning

rehabilitation was a social worker from the Virgin Islands

Department of Human Services named Vaughn A. Walwyn and that

Walwyn had testified without contradiction that there were no

programs for juvenile sexual offenders in the Virgin Islands.

App. 123. The judge thus concluded that there was "nothing

available" or at least "nothing that [had] come to the Court's

attention" that created "a likelihood of reasonable

rehabilitation" for A.M. if he was treated as a juvenile and was

found to have committed the offenses charged. Id.

The Family Division judge again addressed the question

of rehabilitation in her written transfer order. There, she made

the following finding: That the testimony elicited at the hearing disclosed that there is no program of rehabilitation in the Virgin Islands for minors who are found delinquent of the crime with which the minor is charged.

App. 20.

In attacking the decision of the Family Division, A.M.

suggests that the court erred because it did not consider whether

he could be rehabilitated if sent to a juvenile facility outside

the Virgin Islands. See Appellant's Br. at 13, 17-18. We

disagree with this argument. The Virgin Islands transfer statute

required the Family Division to consider evidence concerning "the

likelihood of reasonable rehabilitation" of A.M. if he was found

to have committed the alleged offense, V.I. Code Ann. tit. 5, §

2509(d)(7). This language does not expressly require that the

court survey the availability of suitable rehabilitation

facilities in other jurisdictions, and we see no reason to

suppose that the Virgin Islands Legislature intended to impose

any such inflexible requirement. If A.M.'s attorney was aware of

specific, suitable facilities outside the Virgin Islands, she

could have called them to the judge's attention. In that event,

the Family Division judge could have considered whether sending

A.M. to any of these facilities represented a "reasonable

rehabilitation" plan under all of the circumstances, including

the cost to the Government of the Virgin Islands. It does not

appear, however, that A.M.'s attorney identified any particular

facility outside the Virgin Islands, and we consequently do not

believe that the judge erred in limiting her consideration to the facilities and programs that had "come to the Court's attention."

App. 123.

In a related argument, A.M. seems to suggest that the

Family Division should not have considered his likelihood of

rehabilitation in light of the juvenile facilities that the

Government of the Virgin Islands has chosen to create but should

have instead considered his likelihood of rehabilitation in light

of the juvenile facilities that he believes the Government should

have created. We disagree with this argument as well. It seems

most unlikely that the Legislature of the Virgin Islands, when it

provided in V.I. Code Ann. tit. 5, § 2509(d)(7), that the Family

Division must consider a juvenile's "likelihood of reasonable

rehabilitation," meant to require or authorize the Family

Division to decide whether the Legislature had provided for the

creation of adequate juvenile facilities. Rather, we believe

that the Legislature meant to require the Family Division to

consider the likelihood of a juvenile's rehabilitation in light

of the facilities and programs then available. Here, the Family

Division judge carried out that responsibility.

IV.

A.M. next argues that the juvenile delinquency

complaint did not comply with the requirements of V.I. Code Ann.

tit. 5, § 2510(a), which provides that such "[c]omplaints shall

be verified and may be signed by any person who has knowledge of

the facts alleged." In this case, the complainant, Detective

Merlin Wade, did not personally sign either the complaint or the verification. Instead, both are signed by another person "for M.

Wade." App. 32, 33.

We do not reach the question whether this mode of

signing or verification satisfied the statutory requirements

because we do not believe that the formal correctness of the

complaint is an issue that is properly before us in this appeal.

The sole question that we may consider at this time under the

collateral order doctrine concerns A.M.'s transfer for

prosecution as an adult under V.I. Code Ann. tit. 5, § 2508(b).

The factors that must be considered in such a transfer decision

are carefully set out in V.I. Code Ann. tit. 5, § 2509(d), and

the formal correctness of the juvenile delinquency complaint is

not among them. If A.M. is ultimately tried and convicted as an

adult, and if his argument concerning the form of the juvenile

delinquency complaint is not mooted by the filing of a new

complaint or information, he will be able to obtain appellate

consideration of his argument at that time.

V.

A.M. next argues that the transfer decision should be

overturned because the so-called "transfer summary" prepared by

the Virgin Islands Department of Human Services recounted a

statement that the previously mentioned social worker, Vaughn A.

Walwyn, elicited from him in violation of V.I. Code Ann. tit. 5,

§ 2512. While we agree with A.M. that this statement was not

admissible against him, we hold that A.M. was not entitled to the

relief he sought in the Family Division, namely, the striking of the entire "transfer summary" submitted by the Department of

Human Services and/or the denial of transfer.

Prior to a transfer hearing, the Virgin Islands Police

Department and the Department of Human Services must submit

written reports to the court concerning the factors that the

court is required to consider. V.I. Code Ann. tit. 5, §

2509(e).5 The police report must address the first four factors

listed in V.I. Code Ann. tit. 5, § 2509(d), all of which relate

to the offense or offenses charged, and the Department of Human

Services report must address the remaining three factors, all of

which concern the juvenile's character, background, and history.

Such reports or "transfer summaries" were submitted in this case.

The summary submitted by the police department set out

the version of the events disclosed by its investigation.

According to this account, a young woman named D.B., then 16

years old, was sitting in a classroom in her high school at

approximately 11:15 a.m. when A.M. and an adult, Jacob Mark,

entered the room. A.M. and Mark fondled D.B. "while she tried to

evade them and repeatedly told them to stop." App. 86. A.M. and

Mark then dragged her into a smaller room and barricaded the

door, and A.M. raped D.B. while Mark held her down. Id.

The summary submitted by the Department of Human

Services properly contained sections discussing A.M.'s "social

5 . V.I. Code Ann. tit. 5, § 2509(e), refers to the Youth Services Administration, rather than the Department of Human Services. Under V.I. Code Ann. tit. 3, § 437, however, this is deemed to be a reference to the Department of Human Services. history," family, and previous referrals and court convictions.

However, the summary also contained several paragraphs setting

out the version of the incident in question that had allegedly

been provided by A.M. to Walwyn. According to this version,

after A.M. and Mark entered the classroom, A.M. conversed with

D.B., eventually asked her to have sexual intercourse, and

secured her consent. She then followed him into an adjacent

room, and they engaged in consensual intercourse while Mark

guarded the door from the inside. When they later left the room,

D.B.'s friends asked her what had happened, and she broke out in

tears. A.M. allegedly speculated that D.B. had concocted the

rape allegation because of fear of her parents' reaction if they

learned what she had done. App. 92.

Under V.I. Code Ann. tit. 5, § 2512, a juvenile's

statements to law enforcement officers, the Attorney General, or

employees of the Department of Human Services are inadmissible

against the juvenile unless, among other things, "a parent or

guardian who does not have an adverse position, a friendly adult,

or the child's attorney was present at the interrogation when

[the] statement was given." These requirements were apparently

not met when A.M. made his statement to Walwyn.

Based on this failure to comply with the requirements

set out in V.I. Code Ann. tit. 5, § 2512, A.M.'s attorney filed a

motion to strike the entire transfer summary submitted by the

Department of Human Services, and she argued in a supporting

memorandum that without this summary A.M. could not be

transferred. See App. 46-50. In response, the government argued that the transfer summary should not be stricken and that at most

"the appropriate remedy" would be for the court to strike

Walwyn's account of A.M.'s statements. Id. at 58. A.M.'s

attorney, however, submitted a reply insisting that the entire

Department of Human Services' transfer summary be stricken.6 Id.

at 78. See also id. at 67. Later, at the conclusion of the

transfer hearing, when A.M.'s attorney again argued that his

statement had been improperly obtained and that "the whole

transfer summary should be stricken," the Family Division judge

replied: "The whole transfer summary should be stricken? . . .

Even though [it's] authorized by the statute?" Transfer Hearing

Tr. at 186-87. The court subsequently asked: "[W]hat does all

that have to do with my determination . . . on whether to

transfer or not?" Id. at 188. When A.M.'s attorney continued to

insist that the summary be stricken, the judge stated: All right. Well, the transfer summary is authorized by the statute. If you are going to move it to be stricken, when [it's] mandated by the statute . . . then I'm not going to strike it.

Id.

6 . A.M.'s attorney contended that it would be insufficient to strike only the portion of the summary recounting A.M.'s statement to Walwyn, as the government had suggested, because A.M.'s statement had also influenced the section of the summary labelled "Impressions and Evaluation," which contained an observation by Walwyn that A.M. had not shown remorse. Id. at 67. A.M.'s attorney then argued that if this section of the summary were also stricken, the summary would not comply with V.I. Code Ann. tit. 5, § 2509(d) and (e) (see App. at 67), and that consequently the entire summary would have to be stricken, and transfer would have to be denied. Id. at 78. Based on the written submissions of A.M.'s counsel and

the colloquy summarized above, it appears to us that the only

relief that A.M.'s counsel sought from the Family Division was

the striking of the entire summary submitted by the Department of

Human Services or the denial of the transfer motion. These

requests were overly broad and were therefore properly denied.

While A.M.'s counsel would have been entitled under V.I. Code

Ann. tit. 5, § 2512, to have her client's statement stricken from

the record, she never requested that narrower relief.

Moreover, we see no indication whatsoever that the

Family Division judge considered A.M.'s statement or any evidence

derived from that statement in making her transfer decision. The

judge made no reference to the statement or any evidence derived

from it in her oral findings or her written order. In addition,

the judge repeatedly suggested, as we believe the previously

quoted excerpts from the record demonstrate, that she saw no

connection between the improper questioning of A.M. and the

transfer determination. Her view was summarized by her

statement: "[W]hat does all that have to do with my

determination as on whether to transfer or not?" Id. at 188.

Furthermore, since A.M.'s statement, as recounted in the transfer

summary, was entirely exculpatory, it carried little potential

for prejudice.7 For these reasons, we hold that the erroneous

7 . The dissent argues that A.M. might have been prejudiced because his statement led Walwyn to observe that A.M. had not shown remorse. As we interpret the record, however, A.M.'s attorney never specifically asked the Family Division judge to strike or disregard this statement (as opposed to striking the entire transfer summary of the Department of Human Services), inclusion of A.M.'s statement in the Department of Human Services

transfer summary does not require reversal of the transfer

decision.

VI.

A.M.'s last argument is that the Family Division judge

erred in permitting Detective Wade, during his testimony at the

transfer hearing, to relate the accounts of the incident that

were given by the alleged rape victim and by other witnesses.

A.M. argues that hearsay is not admissible to establish probable

cause at a transfer hearing.

A.M. seems to suggest that the admission of hearsay in

this context violates the Due Process or Confrontation8 Clauses (..continued) (see footnote 6, supra), and we are reluctant to overturn a decision of the Family Division for failing to do something that that court might well have done if A.M.'s attorney had only made the request. Moreover, A.M.'s brief on appeal does not even mention Walwyn's statement about A.M.'s lack of remorse, and this brief adheres to the all-or-nothing position that "[t]here was no way to rectify the wrong other than to exclude the entire transfer summary." Appellant's Br. at 24. Furthermore, there is nothing in the record to suggest that the Family Division judge relied on Walwyn's observation about A.M.'s lack of remorse and, in any event, that observation does not seem particularly prejudicial. Unless it is assumed that A.M. actually committed the offenses charged, one would not expect him to be especially remorseful or sympathetic toward D.B., who had caused his arrest. Thus, because we see no basis for concluding that the Family Division judge assumed that A.M. was guilty, we do not think that Walwyn's observation was particularly prejudicial. 8 . The Confrontation Clause of the Sixth Amendment applies only to "criminal prosecutions," and juvenile proceedings have not been held to be criminal proceedings. See, e.g., Middendorf v. Henry, 425 U.S. 25, 37-38 (1976); McKeiver v. Pennsylvania, 403 U.S. 528, 541 (1971) (opinion of Blackmun, J.); id. at 553 (Brennan, J., concurring); In re Gault, 387 U.S. 1, 30 (1967); Sadler v. Sullivan, 748 F.2d 820, 824 n.12 (3d Cir. 1984). It as made applicable to the Virgin Islands by 48 U.S.C. § 1561. He

relies on Kent v. United States, 383 U.S. 541, 562 (1966), in

which the Supreme Court held that procedures at a juvenile

transfer hearing must "measure up to the essentials of due

process and fair treatment." The Kent Court added, however, that

it did not mean that the hearing must conform with "all of the

requirements of a criminal trial or even of the usual

administrative hearing," id. Following Kent, many courts have

held that the Constitution permits use of hearsay at such

hearings. See, e.g., United States v. Doe, 871 F.2d at 1255 (5th

Cir. 1989); United States v. E.K., 471 F. Supp. 924, 930 (D. Or.

1979); People v. Taylor, 391 N.E.2d 366, 372 (Ill. 1979); Clemons

v. State, 317 N.E.2d 859, 863-67 (Ind. Ct. App. 1974), cert.

denied, 423 U.S. 859 (1975); State v. Wright, 456 N.W.2d 661, 664

(Iowa 1990); Hazell v. Maryland, 277 A.2d 639, 644 (Md. Ct. Spec.

App. 1971); Commonwealth v. Watson, 447 N.E.2d 1182, 1185 (Mass.

1983); Matter of Welfare of T.D.S., 289 N.W.2d 137, 140-41 (Minn.

1980); G.R.L. v. State, 581 S.W.2d 536, 538 (Tex. Civ. App.

1979); In re Harbert, 538 P.2d 1212, 1217 (Wash. 1975); State v. Piche, 442 P.2d 632, 635 (Wash. 1968), cert. denied, 393 U.S. 969

(1968), and cert. denied, 393 U.S. 1041 (1969). Cf. O.M. v.

State, 595 So.2d 514, 516 (Ala. Crim. App. 1991), cert. quashed,

595 So.2d 528 (Ala. 1992) (hearsay admissible in juvenile

(..continued) thus appears that the constitutionality of admitting hearsay in this case should be judged under principles of due process. See In re Gault, 387 U.S. at 30; Kent v. United States, 383 U.S. 541, 562 (1966). transfer hearing except when it violates rights of cross-

examination or confrontation). We agree with the weight of this

authority.

It is settled that the Constitution permits the use of

hearsay to show probable cause in a number of contexts. For

example, it is constitutional to rely on hearsay to establish

probable cause for an arrest. See, e.g., United States v.

Matlock, 415 U.S. 164, 173 (1974); United States v. Ventresca,

380 U.S.102, 107-08 (1965); Brinegar v. United States, 338 U.S.

160, 173-74 (1949). The Constitution also permits a grand jury

to rely on hearsay in finding that there is probable cause to

believe that a defendant committed a criminal offense. Costello

v. United States, 350 U.S. 359, 361-63 (1956). Likewise, Rule

5.1 of the Federal Rules of Criminal Procedure provides that

"[t]he finding of probable cause [at a preliminary examination]

may be based upon hearsay evidence in whole or in part," and we

assume that this provision is constitutional.

A probable cause determination under Fed. R. Cr. P.

5.1(a) is closely analogous to the probable cause determination

made by the Family Division in this case, i.e., that there was probable cause to believe that A.M. committed the offenses with

which he was charged. To be sure, Rule 5.1(a) applies to

proceedings against adult defendants, whereas transfer

proceedings involve juveniles, but we are not aware of any

decision of the Supreme Court or of this court holding that the

Constitution imposes stricter evidentiary standards in juvenile than in adult proceedings. On the contrary, the Supreme Court has stated that juvenile proceedings need not be conducted in

conformity with all of the formal procedural requirements

applicable in criminal trials. In re Gault, 387 U.S. at 30;

Kent, 383 U.S. at 562. Consequently, we are convinced that the

admission of hearsay to establish probable cause in a juvenile

transfer proceeding is constitutionally permissible.

Contrary to A.M.'s argument, we also believe that

Virgin Islands law permits the admission of hearsay in this

context. We have not found any Virgin Islands statute or court

rule that addresses this specific question. However, Rule 7 of

the Rules of the Territorial Court provides that "[t]he practice

and procedure in the territorial court shall conform as nearly as

may be to that in the district court in like causes, except where

there is an express provision in the law or these rules to the

contrary." We therefore examine whether hearsay would be

admissible in a juvenile transfer proceeding in district court.

Rule 1101(a) of the Federal Rules of Evidence provides

that these rules apply to the District Court of the Virgin

Islands, as well as to the federal district courts. Subsections

(b) and (e) of Rule 1101 then list certain proceedings in which

the Federal Rules of Evidence apply in whole or in part, and

subsection (d) lists certain proceedings in which the rules do

not apply, except with respect to privileges. Unfortunately,

neither juvenile proceedings in general nor juvenile transfer

proceedings in particular are listed in any of these

subdivisions. Moreover, while subsection (b) states that the

rules apply generally to all "civil actions and proceedings" and to all "criminal cases and proceedings," juvenile transfer

proceedings do not fall neatly into either of these categories.

Even a proceeding on the merits of a juvenile delinquency charge

cannot easily be categorized as either "civil" or "criminal."

See McKeiver v. Pennsylvania, 403 U.S. at 541 (Opinion of

Blackmun, J.). More importantly, the proceeding at issue here --

a transfer hearing -- is of a preliminary nature and is

consequently not comparable to a civil or criminal trial.

For this reason, the only federal courts that have

considered the question have held that the provision of the

Federal Rules of Evidence that most closely applies to transfer

proceedings is Rule 1101(d)(3), which states that the Federal

Rules of Evidence (except with respect to privileges) do not

apply to preliminary examinations in criminal cases. See United

States v. Doe, 871 F.2d at 1255 & n.2; United States v. E.K., 471

F. Supp. at 930. We agree with this analysis, and we therefore

conclude that under the Federal Rules of Evidence, hearsay is

admissible to establish probable cause in juvenile transfer

hearings. By virtue of Rule 7 of the Rules of the Territorial

Court, it follows that hearsay was admissible for this purpose in

A.M.'s case.

VII.

For these reasons, we affirm the decision of the

Appellate Division of the District Court. GOVERNMENT OF THE VIRGIN ISLANDS IN THE

INTEREST OF: A.M., A MINOR, No. 93-7736

STAPLETON, J., Concurring and Dissenting:

I join all of the opinion of the court except Section

V. Because I believe social worker Walwyn's interrogation of

A.M. about the alleged crime in the absence of, and without

notice to, his attorney violated A.M.'s constitutional right to

counsel as well as his rights under 5 V.I.C. § 2512, I

respectfully dissent from the court's disposition of this appeal.

I would remand for further proceedings on the government's motion

to transfer A.M. for trial as an adult.

Walwyn interviewed A.M. about the alleged offense when

Walwyn knew that A.M. was represented by an attorney. Walwyn's

report to the Territorial Court was based primarily on that

interview. In his report, Walwyn, after reciting A.M.'s version

of what happened on the day of the alleged offense, drew the

following inferences: [A.M.] seems to be complacent and laid back about the entire affair. Initially, the young man did not fully understand the extent of the charges against him. Although he was later made aware of the extent of the charges, his attitude did not change. Additionally, he shows little remorse for what the alleged victim might be experiencing. He indicated that it is her fault that things are hard on her because she could have easily told the truth. A.M. filed a "Motion to Strike" that asked the

Territorial Court to suppress not only A.M.'s version of the

offense as reported in Walwyn's report but also the evaluation

and recommendation sections of that report. The motion and

associated briefs requested that these latter segments of the

report be suppressed because "both sections refer to the minor's

alleged lack of remorse." App. 67. As A.M.'s brief explained to

the court, Had the minor's attorney been present at the interview or had the minor heeded the attorney's [prior] instructions [not to discuss the case with anyone], no facts would have been elicited for the caseworker to presume that the minor should be displaying feelings of remorse (i.e. the minor's view of the incident).

App. 67.

The Territorial Court declined to suppress any portion

of Walwyn's report. After a hearing, it granted the government's

motion to transfer A.M. for trial as an adult. Although the

court's findings do not specifically refer to A.M.'s attitude

toward the alleged offense, the court relied on Walwyn's report

and hearing testimony as a basis for concluding that a denial of

the government's motion would provide no prospect for

rehabilitation of A.M. and would afford inadequate protection for

the public.

Under the Virgin Islands statute, as under the statute

before the Supreme Court in Kent v. United States, 383 U.S. 541

(1966), a proceeding on a motion to transfer a juvenile for trial

as an adult is a "critically important" proceeding. Id. at 560. As a result, based on the teachings of In re Gault, 387 U.S. 1

(1967), I conclude that the Due Process Clause entitled A.M. to

have his attorney present when he was interrogated by the state

concerning the alleged offense.9 Since the record provides no

basis for finding that there was a knowing and voluntary waiver

of this right by A.M., I can only conclude that Walwyn's

questioning of A.M. without his attorney being present was

unconstitutional. As the majority acknowledges, it also violated

5 V.I.C. § 2512.

Unlike my colleagues, I am unable to conclude that the

failure to grant the motion to suppress was harmless error or

that A.M.'s counsel, by asking too much relief, precluded A.M.

from thereafter maintaining that less than the entire report

should have been suppressed. It is clear from Walwyn's report

and testimony that his conclusion concerning A.M.'s attitude

toward the alleged offense was based on his interrogation of A.M.

regarding the events of the day in question. That conclusion was

thus fruit of a poisoned tree. Further, while it is conceivable

to me that the Territorial Court gave no weight to Walwyn's

conclusion regarding A.M.'s attitude, I consider that highly 9 . Section 3 of the Revised Organic Act of 1954 makes the Fifth and Sixth Amendments of the United States Constitution applicable in the Virgin Islands. A.M.'s Motion to Strike claims a right to counsel and cites the Sixth Amendment in support. It may be that the Sixth Amendment, being limited to criminal proceedings, is not applicable to a juvenile transfer proceeding. If it is not, however, I believe there is a right to counsel at that stage under the Due Process Clause of the Fifth Amendment. A.M.'s motion made clear to the Territorial Court that he claimed a constitutional right to counsel, and I would hold that this was sufficient to preserve the issue. unlikely and am unwilling to assume an absence of reliance in the

absence of express assurance from the Territorial Court. When

asked to determine whether an individual accused or convicted of

a crime can be rehabilitated or whether such an individual

represents a threat to the public, courts normally and

understandably rely on the available information regarding the

individual's attitude towards the events in question and I

believe it very likely that the Territorial Court did so here.

My colleagues correctly point out that A.M.'s counsel

sought suppression of Walwyn's entire report. However, to the

extent A.M.'s motion was based on the contention that Walwyn's

interrogation violated A.M.'s right to counsel, the briefing made

clear that A.M.'s concern was about the above-quoted conclusion

that Walwyn reached concerning A.M.'s state of mind.

I would reverse the order of the Territorial Court and

remand for further proceedings. If the Territorial Court is able

to provide explicit assurance that Walwyn's evaluation of A.M.'s

attitude played no role in its decision on transfer, I would

permit the entry of a new transfer order. If the court is unable

to give that assurance, a new study and report by another social

worker would be necessary to provide an untainted basis for a new

hearing on the government's motion to transfer.