Marrow v. United States

592 A.2d 1042, 1991 D.C. App. LEXIS 167, 1991 WL 102886

• Court: District of Columbia Court of Appeals
• Decided: June 13, 1991
• Docket: 89-1034
• Status: Published

Opinions

FERREN, Associate Judge:

Appellant challenges the trial court’s denial of his motion to dismiss a misdemeanor charge for lack of jurisdiction or, in the alternative, to transfer the charge to the Family Division. On February 6, 1989, appellant was arrested on a misdemeanor cocaine possession charge, D.C.Code § 33-541(d) (1988). On the same day he was also arrested — pursuant to an outstanding warrant — on a felony charge of assault with intent to murder while armed, D.C.Code §§ 22-503, -3202 (1989).¹ Appellant, a 17-year-old, argues that the Criminal Division does not have jurisdiction over his misdemeanor charge because, at the time of his arrest for cocaine possession, he was still a juvenile, subject to Family Division jurisdiction, despite the February 1, 1989, warrant for his arrest on the felony charge for which he would be triable as an adult.

According to D.C.Code § 16-2301(3)(A)(i) (1989), once the United States Attorney has “charged” a defendant “who is sixteen years of age or older” with assault with intent to murder while armed, that defendant must be prosecuted as an adult for the charged felony and for all “subsequent delinquent act[s].” D.C.Code § 16-2307(h) (1989). The trial court ruled that the misdemeanor possession charge constituted a “subsequent delinquent act” within the meaning of § 16-2307(h). Specifically, the court concluded, “based on the outstanding felony warrant dated February 1st, 1989, that there had been a complaint lodged” against appellant before he allegedly committed the misdemeanor offense on February 6, 1989. Appellant argues that the date of presentment in court, February 7, 1989, not the date of issuing the warrant, February 1, 1989, is the crucial time for § 16-2307(h) purposes. He accordingly argues that because both the felony and the misdemeanor cases were presented in court the same day — the day after he was arrested on both charges — the misdemeanor cannot constitute a “subsequent delinquent act.”

We agree with the trial court that the date on which appellant was “charged by the United States attorney” with the felony, see D.C.Code § 16-2301(3)(A) (1989), was the date on which the judge signed and filed the arrest “warrant” based upon a criminal “complaint” signed by a police officer and a supporting “affidavit” signed by the police officer and “approved” by an Assistant United States Attorney who has designated the felony to be charged. See Super.Ct.Crim.R. 4(a).² For statutory purposes the “charge” was filed before the date appellant was presented in court. We therefore affirm the trial court’s order and remand the case to the Criminal Division for trial.

I.

On February 1, 1989, the court issued a warrant for the arrest of appellant — who was then seventeen years old³ — for an assault with intent to commit murder while armed, allegedly committed on January 19, 1989. More specifically, the warrant was issued on the basis of a “complaint” and an “affidavit in support of an arrest warrant,” see supra note 2, signed and approved on February 1, respectively, by Metropolitan Police Officer Lorren D. Leadmon and Assistant United States Attorney Sherri L. Berthrong. On the application for an arrest warrant at the bottom of the complaint form, see supra note 2, Ms. Berthrong had designated the charge of assault with intent to murder while armed. Judge Kramer signed the application, which commanded any authorized federal or local officer to bring the defendant before the court to answer the designated charge. Five days later, on February 6, 1989, appellant was arrested for possession of cocaine, an offense allegedly committed that same day. The next day, February 7, he was arraigned on the misdemeanor and presented on the felony in the Criminal Division. On August 22, 1989, Judge Dixon denied appellant’s motion to dismiss the misdemeanor charge for lack of jurisdiction. Appellant filed a timely appeal two days later.⁴

II.

In general, the Family Division has jurisdiction over a juvenile who meets the statutory definition of a “child” under D.C.Code § 16-2301(3) (1989). See D.C.Code §§ 16-2302, -2303 (1989). “Child” is defined as:

an individual who is under 18 years of age, except that the term “child” does not include an individual who is sixteen years of age or older and—

(A) charged by the United States attorney with (i) murder, forcible rape, burglary in the first degree, robbery while armed, or assault with intent to commit any such offense....

D.C.Code § 16-2301(3)(A)(i) (1989) (emphasis added). We have stated “that § 16-2301(3)(A), by deeming an individual not to be a ‘child’ when certain serious offenses are charged, in effect has decreed, by operation of law, a ‘transfer’ of that individual to the Criminal Division....” In re C.S., 384 A.2d 407, 409 (D.C.1977) (emphasis added). Thus, we have equated the point at which “transfer” occurs (for juveniles age sixteen or over) with the point at which the individual is properly “charged” with one of the enumerated serious offenses. That definition is important for purposes of § 16-2307(h), which provides that “[tjransfer of a child for criminal prosecution terminates the jurisdiction of the [Family] Division over the child with respect to any subsequent delinquent act....” D.C.Code § 16-2307(h) (1989). As a result, the Criminal Division — not the Family Division — would have jurisdiction over Marrow’s subsequent misdemeanor cocaine possession charge.⁵

The question in this case, then, is when was appellant “charged by the United States attorney” with the felony of assault with intent to murder while armed: (1) when the criminal complaint, affidavit (showing the “charge” designated and “approved” by an Assistant United States Attorney), and warrant (based on probable cause) were signed by the judge and filed in the warrant office, see supra note 2, or (2) when appellant was actually presented in court after arrest? Appellant argues for the latter interpretation. More precisely, appellant argues that because he was not “charged” with the felony until his assault case was presented in Superior Court on February 7, his misdemeanor cocaine offense and arrest of February 6 cannot be considered a “subsequent delinquent act.”

Appellant cites In re M.R., 525 A.2d 614 (D.C.1987) (per curiam), to support this proposition. We find no such support in M.R. To the contrary, our discussion of when M.R. was criminally charged as a adult did not mention the dates on which M.R. had been arrested or his case had been presented in Superior Court.⁶ Thus, M.R. provides no basis for claiming such dates have relevance.

Appellant’s reliance on the time of presentment as the triggering event under § 16-2301(3)(A) for subsequent delinquent acts appears to be rooted not in any statute but in (1) a concern that the accused receive notice at an adversarial hearing of the criminal charge before subsequent acts can be treated as criminal acts, and (2) a concern that the government sufficiently examine its decision to prosecute before criminal jurisdiction automatically attaches to subsequent acts. Both concerns, while they may not be insubstantial, are without statutory foundation in determining the time of the United States Attorney’s “charge.”

As to notice, we find nothing in the statute or legislative history that suggests notice must be given at a hearing. The process of obtaining an arrest warrant — which includes a judge’s approval of charges designated by the United States Attorney and the filing of the complaint, supporting affidavit, and warrant in the warrant office, see supra note 2 — assures that a decision to charge has been made by the United States Attorney, based on probable cause, and that it is a matter of court record.⁷ Moreover, the United States Court of Appeals for the District of Columbia Circuit explicitly rejected the argument that due process requires a hearing before the prosecutor initiates the automatic jurisdictional transfer provisions of § 16-2301(3)(A). United States v. Bland, 153 U.S.App.D.C. 254, 262, 472 F.2d 1329, 1337 (1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975 (1973).

Similarly, we find nothing in the statute to suggest that more than probable cause —i.e., what the United States Attorney must show in the complaint and supporting affidavit to obtain an arrest warrant — is necessary to initiate the charging process and automatic jurisdictional transfer under § 16-2301(3)(A). Rather, the statute simply leaves the decision to “charge” to the United States Attorney, just as prosecutors have traditionally been left to decide what to charge and when to press for initiation of the arrest process.

Although neither the statute nor its legislative history⁸ expressly provides a definition of the phrase “charged by the United States attorney,” we believe the plain reading of the phrase makes clear that an individual is “charged” with one of the enumerated offenses under § 16-2301(3)(A) when a criminal complaint, affidavit in support of an arrest warrant approved by an Assistant United States Attorney, and warrant showing a felony “charge” designated by an Assistant United States Attorney are signed by a judge and filed in the warrant office. See supra note 2.⁹ Any delinquent act thereafter is a “subsequent delinquent act” for purposes of § 16-2307(h).

This definition is consistent with the purpose underlying § 16-2301(3)(A). As we have noted in earlier decisions, the intent of Congress in enacting this provision of the 1970 District of Columbia Court Reorganization Act was “to work a substantive contraction of the Juvenile Court’s earlier jurisdiction.” Pendergrast v. United States, 332 A.2d 919, 923 (D.C.1975). The House report stressed that its goal was to provide “a better mechanism for separation of the violent youthful offender and recidivist from the rest of the juvenile community.” H.R. Rep. No. 907, 91st Cong., 2d Sess. 50 (1970). See also In re C.S., 384 A.2d at 410; Pendergrast, 332 A.2d at 923. Congress accomplished this purpose by placing broad “charging” discretion in the hands of the United States Attorney under § 16-2301(3)(A). We have recognized this, for instance, when we noted that the transfer statute reflects “the intention of Congress that jurisdiction over a 16- or 17-year-old juvenile charged [by the Corporation Counsel] with one of the specified offenses is not to be exercised in the Family Division unless the United States Attorney elects not to charge such an accused as an adult.” Pendergrast, 332 A.2d at 923 (emphasis added). Similarly, we have stated that “[t]he United States Attorney has discretion under § 16-3201(3)(A) not to bring criminal charges against a 16- or 17-year-old youth_” In re C.S., 384 A.2d at 411 n. 7 (emphasis added). While not precisely defining the term “charged,” it is obvious from context that we did not take “charged” to mean the discretion to arrest and present but, rather, the discretion to decide what offenses to specify in the application for a warrant. See Super.Ct.Crim.R. 4 (issuance of warrant based on complaint and affidavit showing probable cause). Nothing in our previous decisions suggests otherwise.

Moreover, the United States Court of Appeals for the District of Columbia Circuit, in upholding § 16-2301(3)(A) against a due process challenge, specifically stated “that the exercise of the discretion vested by Section 2301(3)(A) in the United States Attorney to charge a person 16 years of age or older with certain enumerated offenses ... initiat[es] that person’s prosecution as an adult.” Bland, 153 U.S.App. D.C. at 260, 472 F.2d at 1335 (emphasis added). The court went on to note that § 16-2301(3)(A) embodies the concept of prosecutorial discretion, id., and squarely rejected the argument “that due process requires an adversary hearing before the prosecutor can exercise his age-old function of deciding what charge to bring against whom.” 153 U.S.App.D.C. at 262, 472 F.2d at 1336-37 (emphasis added). This decision leaves no doubt that “charged” for purposes of § 16-2301(3)(A) is a function of the United States Attorney's prosecutorial discretion which, under constitutional principles of separation of powers, is rarely subject to judicial review. 153 U.S.App.D.C. at 260-61, 472 F.2d at 1335-36.

Appellant’s reading of “charged” to require arrest and presentment would work a major change in case law and statutory language. We decline to follow this suggestion. We hold, rather, that an individual is “charged” under § 16-2301(3)(A) once a judge has signed and filed an arrest warrant in the warrant office based on probable cause derived from a complaint and supporting affidavit signed by a police officer and approved by an Assistant United States Attorney who has designated on the affidavit and the warrant one of the felony offenses enumerated in § 16-2301(3)(A). See supra note 2. Thus, Marrow’s delinquent cocaine possession act — an act committed after a judicially-approved warrant commanding his arrest for an enumerated offense — was a “subsequent delinquent act” for purposes of § 16-2307(h) and must be submitted for trial to the Criminal Court’s jurisdiction.

Accordingly, Judge Dixon’s order that the Criminal Division has jurisdiction over appellant’s misdemeanor charge of possession of cocaine is affirmed, and the case is remanded for trial.

So ordered.

1 . Appellant was convicted of the felony, which is not a subject of this appeal.

2 . The first step in a prosecution when the government seeks an arrest warrant is the preparation of a "complaint" and an "affidavit” in support of an arrest warrant. See Super.Ct. Crim.R. 4(a). In this case the complaint was signed by a police officer whose signature was attested by a judge. The affidavit, which was a separate sheet attached to the complaint, was signed by the police officer, signed and “approved” by an Assistant United States Attorney, and attested by a judge. Below the complaint on the same form was the application for a “warrant" which named the defendant and specified the charge designated by an Assistant United States Attorney. Upon finding probable cause based on the affidavit, the judge signed the "warrant” portion of the form commanding “The United States Marshal or any other authorized federal officer or the Chief of Police of the District of Columbia” to bring the defendant to court. The complaint, affidavit, and warrant then presumably were filed in the warrant office in the Special Proceedings Branch of the Criminal Division of the Clerk of the Superior Court. After the police officer arrested the defendant, the officer signed and dated a "return" on the “warrant” portion of the complaint form.

According to Super.Ct.Crim.R. 4(a), an arrest warrant may be issued to a police officer without approval of the United States Attorney upon a showing of "good cause.” Id. More specifically, the last sentence of Rule 4(a) provides:

Except for good cause shown by specific statements appearing in the complaint or in an affidavit filed with the complaint, no warrant shall be issued unless the complaint has been approved by an appropriate prosecutor.

For purposes of initiating a prosecution under D.C.Code § 16-2301(3)(A) (1989), the language of the statute makes clear that the felony complaint must have been approved by the office of the United States Attorney. The "good cause” exception permitted under Super.Ct.Crim.R. 4(a) cannot affect that requirement; thus, any warrant issued upon a complaint and affidavit signed by a police officer, without approval “by an appropriate prosecutor,” id., cannot serve as the basis for a “charge” cognizable under § 16-2301(3)(A).

In this case, the complaint, affidavit, and application for a warrant were signed by all the required parties on February 1, 1989 and apparently filed in the warrant office the same day. We do not decide what the critical date would be when the warrant for a crime "charged by the United States attorney,” D.C.Code § 16-2301(3)(A) (1989), is signed by the judge or filed in the warrant office on a day later than the one on which the police officer and Assistant United States Attorney signed the complaint, affidavit, and warrant application. For purposes of analysis in this opinion we note that all required signing occurred the same day, February 1, 1989. Moreover, we assume — absent any contention to the contrary — that all documents were filed in the warrant office in the ordinary course of business on February 1, 1989.

3 . The record contains a birth certificate with June 12, 1971 listed as the date of birth. The child’s name on the birth certificate is "James Quick,” later amended to "James S. Quick, Jr." Appellant’s mother, Eleanor Braithwaite, appeared at a status hearing and stated that appellant’s real name is James Quick and, as far as we can tell, the fact that the birth certificate belongs to appellant is uncontested.

4 . An order denying a motion to transfer a case from the Criminal Division to the Family Division is appealable as a final order. See Choco v. United States, 383 A.2d 333, 334-35 (D.C.1978).

5 . We do not address the question whether Family Division jurisdiction is restored under D.C. Code § 16-2307(h) (1989) when a defendant is arrested and presented in court first on an adult charge and then on a later-charged juvenile offense; the defendant is then indicted as an adult on the juvenile offense; and then the original adult charge is dismissed.

6 . In M.R., appellant sought to dismiss a juvenile delinquency proceeding for lack of jurisdiction, claiming that the Family Division “ceased to have jurisdiction after adult criminal charges had been filed against [appellant] for events which occurred before the events which were involved in the juvenile delinquency proceeding.” 525 A.2d at 614. We concluded that the answer depended on whether the criminal charges had been filed before or after the juvenile charges, without regard to the respective dates on which the charged criminal and delinquent acts took place. Accordingly, we sustained Family Division jurisdiction over a delinquency charge filed March 2, 1984 for a purse snatching which had occurred on February 24, 1984, even though a judicially-approved warrant containing a "charge” designated by the United States Attorney had been filed with the warrant office on March 16, 1984 for an armed robbery which had occurred on February 22, 1984.

7 .Apparently, judicially approved applications for arrest warrants are filed in the warrant office under seal and thus do not provide notice of criminal charges until a defendant is arrested pursuant to a warrant. See D.C.Code § l-1524(a)(3)(A) (1987) (exemption from Freedom of Information Act for "[¡Investigatory records compiled for law-enforcement purposes,” disclosure of which would "[¡Interfere with enforcement proceedings”).

8 . See S.Rep. No. 2981, 91st Cong., 1st Sess. (1969); H.R.Rep. No. 907, 91st Cong., 2d Sess. (1970). Dissenters to the Report of the House Committee on the District of Columbia on this bill noted, however, that “[t]he Committee bill would exclude altogether from juvenile court jurisdiction any child 16 or older simply accused by the United States Attorney of a serious crime ..H.R.Rep. No. 907, 91st Cong., 2d Sess. 208 (1970) (emphasis added).

9 . Our interpretation of the phrase "charged by the United States attorney" should not be confused with interpretation of the term "charged" when used in other contexts. The Sixth Amendment right to counsel, for instance, attaches “at or after the initiation of adversary judicial proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (emphasis added). However, the constitutional right to counsel at all critical stages of a prosecution reflects different policy goals from those involved in triggering the automatic transfer of jurisdiction from the Family Division to the Criminal Division, see infra, and thus does not inform our decision here.