United States v. A.R.

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0061P (6th Cir.) File Name: 00a0061p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   No. 99-5484 v.  > A.R.,  Defendant-Appellant.  1

Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 99-10011—James D. Todd, District Judge. Argued: October 29, 1999 Decided and Filed: February 17, 2000 Before: JONES, BOGGS, and COLE, Circuit Judges. _________________ COUNSEL ARGUED: David W. Camp, DOWDEN, ZDANCEWICZ & CAMP, Jackson, Tennessee, for Appellant. John T. Fowlkes, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: David W. Camp, DOWDEN, ZDANCEWICZ & CAMP, Jackson, Tennessee, for Appellant. John T. Fowlkes, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

1 2 United States v. A.R. No. 99-5484 No. 99-5484 United States v. A.R. 15

_________________ See, e.g., United States v. Wong, 40 F.3d 1347, 1371 (2d Cir. 1994). More importantly, they held that the time between the OPINION government’s motion to transfer and the court’s disposition of _________________ that motion was tolled as part of § 5036's “interest of justice” exception to the thirty-day deadline. See id; United States v. NATHANIEL R. JONES, Circuit Judge. Defendant- Romulus, 949 F.2d 713, 716 (4th Cir. 1991). This is Appellant A.R. appeals the district court’s order for transfer consistent with this and other circuits’ willingness to grant to adult criminal prosecution for crimes A.R. committed when such exceptions liberally. See, e.g., One Juvenile Male, 939 he was 17 and 18 years old. A.R. also challenges the court’s F.2d 321, 324 (6th Cir. 1991) (concluding that two dismissal of his motion to set aside the order of transfer on continuances which delayed the trial beyond the thirty-day speedy trial grounds. Because the district court did not abuse deadline fell within the “interest of justice exception”). And its discretion in ordering A.R.’s transfer, we AFFIRM. contrary to A.R.’s suggestion, there is no requirement that a court must make its transfer determination within thirty days I. of the motion’s filing. Cf. Wong, 40 F.3d at 1371 (excluding from the thirty-day requirement the forty days which elapsed A. Procedural History between the filing of the transfer motion and the court’s On February 2, 1999, the United States filed an Information disposition). In sum, we see no reason to depart from the against A.R. which charged him with a number of criminal Second and Fourth Circuit approaches, which comport with actions: conspiracy; armed robberies of a Little Caesar’s Pizza the statute’s express exception to the thirty-day requirement. Parlor and Po Folks Restaurant on October 18, 1997 and in IV. November 1997, respectively; and two drug offenses in November 1997 and in March 1998, the latter occurring after On appeal, A.R. has essentially sought to re-argue the case A.R.’s 18th birthday. The Government also filed motions to that he made and lost before the district court. A.R. has made detain A.R. pending trial and to transfer his proceedings to no showing that the court abused its discretion. He has also adult criminal prosecution. A.R. was arrested and taken into failed to show a speedy trial violation. We therefore custody on February 3, 1999. On February 18, the district AFFIRM the district court’s order of transfer. court issued an order to detain A.R. without bond. Fifty-five days after his initial detention, on March 30, the district court held a transfer hearing. There, the court found for the Government, ordering A.R.’s transfer to adult criminal prosecution on April 2. On April 5, the court denied A.R.’s motion to set aside the order of transfer. A.R. filed a notice of appeal on April 7, 1999. 14 United States v. A.R. No. 99-5484 No. 99-5484 United States v. A.R. 3

to wait until after trial and a final judgment to appeal the B. The Transfer Hearing claim, the adult trial would have already sacrificed the “legal and practical benefits of being tried as a juvenile.” Angelo D., At A.R.’s transfer hearing, several witnesses testified on 88 F.3d at 858 (quoting United States v. Doe, 49 F.3d 859, behalf of the Government and A.R. This testimony provided 865 (2d Cir. 1995)). These lost benefits include “pretrial information relevant to the list of factors that the Federal detention in a foster home or community-based facility near Juvenile Delinquency Act (“FJDA”), 18 U.S.C. § 5032, the juvenile’s home instead of adult prison . . . , and the requires judges to consider in determining whether to transfer sealing of records and the withholding of the juvenile’s name a juvenile delinquent to adult criminal proceedings. and picture from the media.” Id. Just as in the case of other Information was provided on the following enumerated substantive and procedural claims, if the speedy trial violation factors: would have led to dismissal of the case, those “benefits” would be sacrificed by requiring an adult criminal trial before 1. A.R.’s Age and Social Background allowing an appeal for the violation. This “loss” satisfies the third prong of the collateral order test, and distinguishes the A.R. was 18 years old at the time of the transfer hearing, juvenile context from non-juvenile cases where speedy trial and was 17 and 18 years of age at the time of the alleged claims do not meet that third prong. See United States v. offenses. It is undisputed that A.R. has been diagnosed with Bilsky, 664 F.2d 613 (6th Cir. 1981) (concluding that Speedy Attention Deficit Hyperactivity Disorder (ADHD) and a Trial Act rights are not irrevocably lost if an immediate learning disability. As the district court stated, there is little appeal is unavailable).6 additional information on A.R.’s social background. The record indicates that he lives in a “low to middle class” 2. Merits of Speedy Trial Claim income home. Although his parents never married, they have always been amicable, and, according to A.R., have both Finally, the broad reading of the “interest of justice” provided for his basic needs. Mr. Veldon Reedy, a clinical exception to the thirty-day requirement, 18 U.S.C. § 5036, social worker who examined A.R., noted in his evaluation stands decisively against the merits of A.R.’s speedy trial that A.R. has a stable home environment. Mary Jo Bell, the argument. Most on point are decisions by the Fourth and Intake Counselor for the Madison County Juvenile Court Second Circuits which considered and rejected defendants’ Services, testified that although A.R.’s mother was claims that the thirty-day period required by 18 U.S.C. § 5036 supportive, she was not in control of her son’s behavior. Bell had elapsed due in part to an intervening transfer motion. also testified that A.R. was at one time removed from the First, those courts concluded that the thirty-day clock begins custody of his mother to be with his aunt, and spent to run on the date the juvenile is taken into federal custody. considerable amounts of time with his aunt. 2. The Extent and Nature of A.R.’s Prior Delinquency Record 6 Our holding is limited to speedy trial claims filed after a district court has issued a transfer order. We do not address whether a juvenile Beginning in 1992, A.R. was charged with unruly conduct delinquency speedy trial claim is reviewable before the substantive and placed in a Teacher, Parent, Probation Officer program transfer order decision is rendered; an unpublished decision by this Court and ordered to attend counseling at a behavioral center. His held that such a claim was not reviewable under the collateral order problems continued, however. In 1995, A.R. was charged doctrine because that issue “is fully reviewable following an adjudication of delinquency.” United States v. Juvenile Male, 178 F.3d 1297, 1999 WL with vehicular burglary, theft, and vandalism (under five 107594, at *2 (6th Cir. 1999) (unpublished decision) (per curiam). hundred dollars). In the same year, he was arrested for 4 United States v. A.R. No. 99-5484 No. 99-5484 United States v. A.R. 13

criminal trespassing, assault, and evading arrest. In March of final decision, it is not reviewable unless it falls within the 1996, A.R. was again charged with theft (of a Sears store) and collateral order doctrine.4 To fall within that doctrine, disruption of a school assembly by fighting. In January 1997, A.R. was charged with disorderly conduct for fighting. an order must (1) ‘conclusively determine the disputed question,’ (2) ‘resolve an important issue completely Despite these numerous arrests, A.R. has only been found separate from the merits of the action,’ and (3) ‘be guilty of two minor offenses. Some of the charges were effectively unreviewable on appeal from a final dropped, and in other cases A.R. was ordered to stay away judgment.’ from the premises where the alleged incident occurred or to pay restitution to the victim. He has also been assigned to a Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 number of specialty programs designed to address his (1989) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, disabilities. 468 (1978)). Courts have uniformly concluded that orders transferring juveniles for adult prosecution are immediately 3. A.R.’s Intellectual Development and Psychological appealable under the collateral order doctrine. See, e.g., One Maturity Juvenile Male, 40 F.3d at 844 (concluding that a transfer order satisfies all three collateral order criteria).5 Some courts Testing of A.R. has revealed low levels of academic have applied the logic of these decisions to appeals on achievement and intelligence. A.R. was initially tested and procedural claims. See, e.g., Angelo D., 88 F.3d at 858 (“The placed in special education classes when he was in middle justifications for allowing the immediate appeal of transfer school. He has long been diagnosed with ADHD and with a orders remain the same regardless of whether the appeal is learning disability. The defense’s expert, Mr. Reedy, testified based on an alleged procedural or substantive deficiency.”). that although A.R. is eighteen years old, those diagnoses generally cause a thirty percent “drop in expectations” for We believe that the logic of these holdings applies in this cognitive and emotional levels, meaning that a person of case. A speedy trial claim following a transfer order in the A.R.’s age and conditions functions at the level of a ten- to juvenile context implicates the very concern which allows us eleven-year-old. Ms. Estell Staten, the probation officer and to hear appeals on the merits of transfer orders under the community service caseworker for the Madison County collateral order doctrine--namely, if defendants like A.R. have Juvenile Court Services, testified that A.R. was able to communicate with her adequately and seemed of average intelligence. 4 We can not hear this claim under pendent jurisdiction because it is not the case that “the appealable issue at hand cannot be resolved without 4. The Nature of Past Treatment Efforts and A.R.’s addressing the nonappealable collateral issue.” Chambers v. Ohio Dep’t Response to Such Efforts of Human Servs., 145 F.3d 793, 797 (6th Cir. 1998). A.R. has been placed in special education classes since 5 The crux of these decisions is the conclusion that the third prong of middle school. He has also undergone special investigation the collateral order test is met--that a transfer order is effectively and behavioral treatment in a school program called the “M unreviewable on appeal from a final judgment. Courts have found this team,” which designs individual educational and behavioral prong to be satisfied by juvenile transfer orders because “an appeal from plans for youths with conditions such as A.R.’s. A.R.’s a final judgment would do little to resurrect the special protections afforded juvenile defendants” that will have been lost by the transfer-- teacher, Ms. Arnold, testified that the M-team approach had such as detention in foster homes rather than adult prisons and the sealing achieved some success in A.R.’s treatment and educational of records. United States v. Angelo D., 88 F.3d 856, 858 (10th Cir. 1996). 12 United States v. A.R. No. 99-5484 No. 99-5484 United States v. A.R. 5

th[e] program long enough to get long-term treatment, which progress. She stated that A.R. had the intelligence to be is probably necessary.” J.A. at 203-04. These determinations taught, demonstrated the ability to learn, and further are well within the district court’s fact-finding purview, are “demonstrated that with the right structure he could function supported by evidence in the record, and are consistent with well with others.” J.A. at 141. The defense claims that the reasoning employed by past courts. See T.F.F., 55 F.3d at attempts to treat A.R. and accommodate the ADHD and 1121-22 (upholding a district court’s conclusion that a learning disability from which he suffers were not supported defendant could not remain in the juvenile system after he by the school system. Ms. Marcella Fletcher, a Tennessee reached nineteen). Although there is some testimony Legal Services attorney who represented A.R. concerning contradicting some of these conclusions, these are instances special education issues, testified that she had to file a due where the district court has simply chosen to credit the process notice against the school in order to assure that A.R. Government’s evidence over A.R.’s. 3 This is within its would be treated properly for his ADHD. discretion, and is not clearly erroneous. Reedy testified that A.R. received Ritalin for about three C. years, but that the treatment had been discontinued. He further testified that with the medication, A.R. had “tended to A.R.’s second argument is that the Government violated 18 do better”--without the medication, he was “going to be pretty U.S.C. § 5036 because he was not brought to trial within much doomed to not being successful academically and [] thirty days of the date of his detention. Since he was detained behaviorally.” J.A. at 170. Reedy further testified that the on February 3, 1999, A.R. argues that he should have been “M team” response was not adequate to treat A.R.’s brought to trial within thirty days of that detention--no later problems--“I would like to have seen a more intensive type of than March 5. Instead, even the transfer hearing was not work done . . . . [H]e should have had [] some intensive conducted until March 30. A.R. filed a motion to set aside counseling since his early childhood.” J.A. at 132. the transfer order on this ground, which the district court denied. 5. The Availability of Programs Designed to Treat A.R.’s Behavioral Problems 1. Jurisdiction To Hear this Claim Brenda Roden, the Madison County Juvenile Court Clerk, We find that this Court has jurisdiction to hear the speedy testified that the county’s juvenile system had an age limit of trial claim. Because the court’s denial of the motion is not a 19. Christopher Bryant Worrell, an employee of the Correction Corporation of America at the Shelby Training Center in Memphis, Tennessee, testified as to the availability 3 of that private facility for A.R. Worrell testified that the Perhaps the most questionable aspect of the district court’s Center provides numerous programs offering education and reasoning is its assessment of the likelihood of rehabilitation at the privately-run Shelby Training Center--which Mr. Reedy testified would guidance for incarcerated juveniles. Worrell explained that be better suited for A.R. Unlike the other state-run juvenile facilities “there is further provided to an individual incarcerated over (who do not treat persons over the age of 18), the Shelby Center treats the age of eighteen educational opportunities based upon what people until they reach the age of 21. That would enable A.R. to receive needs and desires are necessary as determined by the guidance about two years of treatment, casting some doubt on the district court’s counselor. He (A.R.) would be placed into a structured conclusion that the Shelby Center treatment would be “relatively short- term” for A.R. J.A. at 203. But given the court’s broad discretion in environment . . . The facility is described as secured” and making such a conclusion, and the fact that this is only one of the six “rehabilitative in nature.” J.A. at 221. Reedy testified that factors to be weighed, this is not grounds for reversal. 6 United States v. A.R. No. 99-5484 No. 99-5484 United States v. A.R. 11

the Shelby Center’s “highly structured” environment, with “juvenile record” is indeed unclear, but is a question we need both educational training and counseling components, would not resolve in this case.2 Moreover, the fact that many of be helpful to A.R. J.A. at 171-72. A.R.’s acts were merely property crimes, and did not involve actual violence, does not preclude the district court from On these facts, the district court ordered A.R. transferred to considering them as part of this analysis. Other courts have adult proceedings. taken into account non-violent aspects of a delinquency record that show a “pattern of continuous lack of respect for II. authority . . . [and] that [a juvenile’s] criminal activity is not an isolated event, but continued despite prior corrective and We review a district court’s order of transfer for abuse of rehabilitative effort . . . .” United States v. Juvenile No. 1, 118 discretion. See United States v. T.F.F., 55 F.3d 1118, 1120 F.3d 298, 309 (5th Cir. 1997). (6th Cir. 1995). Such an abuse of discretion occurs “if the district court fails to make the required factual findings, or if A.R.’s argument that the court did not give enough weight those findings are clearly erroneous.” Id. to A.R.’s low intellectual development and psychological maturity is also unavailing. As stated supra, the district court III. can choose how much weight to give each factor, and courts have consistently rejected the notion that the failure to satisfy A. one or two factors negates the government’s case for transfer. The purpose of the Federal Juvenile Delinquency Act is to Moreover, courts have generally concluded that lower “remove juveniles from the ordinary criminal process in order maturity and intelligence do not negate a transfer finding as to avoid the stigma of a prior criminal conviction and to long as a defendant has the cognitive ability to conform his encourage treatment and rehabilitation.” United States v. One conduct to the law. See, e.g., One Juvenile Male, 40 F.3d at Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994) (citation 845 (noting that a psychologist evaluating a defendant “did omitted). This aim, however, is counter-balanced by the need not believe an identified learning disability bore on to protect the public from violent and dangerous offenders defendant’s ability to conform his conduct to law”). and their criminal acts. See id. Thus, a juvenile who commits For similar reasons, the district court did not clearly err a felony when he or she is fifteen or older may be subject to when it concluded that “past treatment efforts have failed,” adult criminal procedures if a district court deems it to be “in J.A. at 203, and that any juvenile treatment would be “short- the interests of justice.” T.F.F., 55 F.3d at 1119 (quoting 18 lived” because A.R. is already over 18 and “couldn’t stay in U.S.C. § 5032). Specifically, a district court must “determine[] whether the risk of harm to society posed by affording the defendant more lenient treatment within the 2 juvenile justice system [is] outweigh[ed by] the defendant’s While the Eighth Circuit has concluded that § 5032's listing of a chance for rehabilitation.” One Juvenile Male, 40 F.3d at 844. prior delinquency record as a factor only encompasses prior convictions, see United States v. Juvenile LWO, 160 F.3d 1179, 1182-83 (8th Cir. The statute requires that in making this determination, the 1998), the Seventh Circuit has concluded that the phrase “record” district court must make record findings as to the following includes both delinquency “convictions” and arrests, United States v. factors: Wilson, 149 F.3d 610, 613 (7th Cir. 1998). We need not resolve this question since the district court did not place greater weight on this factor 1) the age and social background of the juvenile; relative to others. See Anthony Y., 172 F.3d at 1253 (noting the different approaches but choosing not to decide which is appropriate because the additional conduct was also relevant to other statutory factors). 10 United States v. A.R. No. 99-5484 No. 99-5484 United States v. A.R. 7

findings simply because the evidence is subject to multiple 2) the nature of the alleged offense (which, for the interpretations.”) purposes of this inquiry, a court may assume to have been committed, see One Juvenile Male, 40 In this case, the district court undertook an analysis of each F.3d at 845), including the defendant’s role in the factor. Its conclusions regarding each factor are reasonable offense; interpretations of the facts, and comport with caselaw from this and other circuits. 3) the extent and nature of the juvenile’s prior delinquency record; First, the court’s noting A.R.’s advanced age was consistent with this Court’s and other courts’ conclusions that the closer 4) the juvenile’s present intellectual development and a defendant is to eighteen, the greater the presumption that he psychological maturity; be treated as an adult. See, e.g., T.F.F., 55 F.3d at 1121 (accepting district court’s reasoning that “because defendant 5) the nature of past treatment efforts and the juvenile’s was eighteen at the time of the transfer hearing, there was response to such efforts; and little time to rehabilitate defendant within the juvenile system”); United States v. Smith, 178 F.3d 22, 27 (1st Cir. 6) the availability of programs within the juvenile 1999) (“[T]he proximity of a juvenile’s age to age eighteen is system designed to treat the juvenile’s behavioral another important factor for the court’s consideration.”); problems. United States v. Juvenile No. 1, 118 F.3d 298, 308 (5th Cir. 1997) (affirming district court’s conclusion that a defendant See 18 U.S.C. § 5032. It is up to the district court “how much was “rapidly approaching the age at which he should be held weight to give each factor.” T.F.F., 55 F.3d at 1120. accountable for his actions under the adult criminal justice system”). Title 18 U.S.C. § 5036, which A.R. claims has also been violated, provides a “speedy trial” component to delinquency Similarly, the court’s placing considerable weight on the adjudications: nature of A.R.’s crimes is both reasonable and consistent with precedent. As this Court noted in One Juvenile Male, “[t]he If an alleged delinquent who is in detention pending trial practice of giving great weight to the nature of the alleged is not brought to trial within thirty days from the date offense in determining a juvenile’s prospect for rehabilitation upon which such detention was begun, the information has been sanctioned by several courts.” 40 F.3d at 846. The shall be dismissed on motion of the alleged delinquent or court’s emphasis on the seriousness of armed robbery in at the direction of the court, unless the Attorney General particular has also been echoed by other courts. See, e.g., shows that additional delay . . . would be in the interest Smith, 178 F.3d at 26 (noting that in every published case of justice in the particular case. where a juvenile was transferred to adult status for armed 18 U.S.C. § 5036. robbery, the transfer was upheld by the appellate court). A.R. challenges the district court’s conclusion that he has an “extensive prior delinquency record” by claiming that as most of that record involves charges that were dropped, he has actually only been found guilty of several minor delinquent acts. The scope of § 5032's reference to the 8 United States v. A.R. No. 99-5484 No. 99-5484 United States v. A.R. 9

B. couldn’t stay in that program long enough to get long- term treatment, which is probably necessary. 1. J.A. at 203-04. In sum, after having “consider[ed] all the The district court looked at the evidence regarding each of factors as a whole,” the district court concluded that it had the six enumerated factors, making the following “no choice but to rule that [A.R.] should be transferred for determinations. First, the district court noted that A.R. was adult prosecution.” The court placed particular weight on the 18, “so he is now an adult by legal standards.” The court also juvenile system’s inadequacy in “handl[ing] juveniles of this noted that it had “very little information about his social background and of this sort.” J.A. at 204. background.” J.A. at 201. Second, the court found the nature of the alleged offenses to be “serious”-- “among the most 2. serious crimes that can be alleged.” J.A. at 201-02. The court further noted that one of the alleged drug offenses occurred We do not find that the district court abused its discretion when A.R. had already reached 18. Third, the court found in issuing the transfer order. The burden which A.R. must that A.R. had an “extensive prior delinquency record ranging overcome is high indeed. Even though “the government bears from disorderly behavior, or disruptive behavior, all the way the burden of rebutting the statutory presumption of juvenile through robbery.” J.A. at 202. Fourth, the court found that treatment,” the “statute does not require more” from a district A.R.’s intellectual development and psychological maturity court than simply to make findings for each factor, and to were “low.” “He seems at best low average on the academic consider each factor in determining whether the transfer achievement and intelligence testing.” J.A. at 202. The court would be in the interests of justice. T.F.F., 55 F.3d at 1121. noted that this was a factor that “would militate toward Moreover, a district court has broad discretion in how it keeping him as a juvenile.” Id. Fifth, the court found that balances and weighs the import of the different factors--“[t]he regardless of whose fault it was,1 past treatment efforts had court need not even find a majority of factors weigh in favor failed to remedy A.R.’s behavioral problems. Despite of the prevailing party, as it is not required to give equal “numerous individualized educational plans tried, none of weight to each factor but may balance them as it deems [them] have worked. Alternative schools were tried but had appropriate.” United States v. Anthony Y., 172 F.3d 1249, not worked. In fact, the more the system tried to concentrate 1252 (10th Cir. 1999)(quoting United States v. Leon, D.M., on the juvenile’s problems, the more serious his crimes 132 F.3d 583, 589 (10th Cir. 1997)) (internal quotation marks became.” J.A. at 203. Finally, crediting Mr. Worrell’s omitted). It also has broad discretion in how the adduced testimony, the court found that there are programs available facts color its consideration of each factor, particularly since within the juvenile system for behavioral problems such as “many of the statutory factors leave considerable room for A.R.’s. However: interpretation . . . and neither § 5032 nor the case law interpreting it specifies how these characteristics should be the problem[] with those programs is that for this assessed in a particular juvenile.” Leon, D.M., 132 F.3d at juvenile they would be relatively short-term. He’s 590-91. In sum, the trial court’s decision carries great weight already over 18. He wouldn’t stay in that program or at the appellate level. See Anthony Y., 172 F.3d at 1254 (“Under our deferential standard of review[], we do not evaluate whether we would have made a different finding in the first instance, nor do we reverse adequately supported 1 A.R. and some of his witnesses claimed that the school’s treatment had been inadequate.