United States v. A.S.R.

81 F. Supp. 3d 709, 2015 U.S. Dist. LEXIS 8865, 2015 WL 328339
CourtDistrict Court, E.D. Wisconsin
DecidedJanuary 27, 2015
DocketCase No. 14-CR-234-JPS
StatusPublished
Cited by1 cases

This text of 81 F. Supp. 3d 709 (United States v. A.S.R.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. A.S.R., 81 F. Supp. 3d 709, 2015 U.S. Dist. LEXIS 8865, 2015 WL 328339 (E.D. Wis. 2015).

Opinion

ORDER

J.P. STADTMUELLER, District Judge.

1. OVERVIEW

On December 5, 2014, the government filed a Juvenile Information charging the defendant, A.S.R., a juvenile male, with violations of 18 U.S.C. §§ 2113 and 2, and 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. (Docket # 1). The two counts against the defendant arise from the attempted robbery of the Great Midwest Bank in West Allis, Wisconsin. Id.

During the robbery, two masked individuals entered the bank, one with a firearm, and attempted to command a teller to give them money. {See Docket # 3 at 2). The teller ducked down below the counter and refused to comply, despite the armed individual tapping on the security glass with the gun and yelling: “Get Up! Give me your money!” Id. at 3. After the teller continued ducking below the counter, the two individuals eventually left. Id. They were later caught — one of the individuals being the defendant — and the gun was also recovered. Id. at 4.

Pursuant to 18 U.S.C. § 5032, the government — in addition to filing the juvenile information — filed a certification to proceed under the Federal Juvenile Delinquency Act (“JDA”), 18 U.S.C. § 5031 et seq. (Docket # 5), and a motion for mandatory transfer of proceedings against the juvenile to adult criminal prosecution. (Docket # 6). In the motion for mandatory transfer, the government seeks to use a prior juvenile delinquency adjudication against the defendant as a “prior conviction” under § 5032 (fourth unnumbered paragraph), triggering mandatory transfer of the juvenile (subject to limitations that will be discussed in more detail below). This prior juvenile delinquency adjudication was for Armed Robbery with Threat of Force-Party to a Crime, pursuant to [712]*712Wisconsin Statutes §§ 943.32(2) and 939.05.

The defendant was originally charged as an adult in state court with the attempted robbery of the Great Midwest Bank, but those charges were dismissed after the filing of the juvenile information and a criminal complaint in this matter (in order to secure the defendant’s arrest and de-tainer). (See Docket # 14 at 4-5). Thereafter, the state charges were dismissed at a. hearing on December 9, 2014. Id.; (Docket # 12 at 20) (noting that “at a hearing scheduled for 8:30 a.m. [on December 9, 2014,] ... the state case against A.S.R. was dismissed”).

Despite the state charges being dismissed on December 9, 2014, the FBI did not take physical custody of the defendant until December 10, 2014. (Docket # 14-1 at 3). An affidavit from the FBI special agent in charge of the investigation notes that the delay was due to him “not receiving] notification from anyone at the Milwaukee Criminal Justice Facility or any other state facility on December 9, 2014, that A.S.R. was being released from state custody.” Id. at 2. Instead, the FBI contacted the jail'oñ the morning of December 10, 2014 (at 8:00 a.m.), to inquire on the status of the defendant and was notified that he would be released in a few hours. Id. at 3.

Prior to taking custody of A.S.R., the FBI “contacted AS.R.’s mother to inform her that [he] would be coming into federal custody based on pending charges for attempted bank robbery ... [and] would be transferred to the federal courthouse in Milwaukee to appear before a judge.” Id. The conversation between the FBI and A.S.R.’s mother occurred around 9:00 a.m., some 30 minutes before he was taken into custody by the FBI.

At 9:30 a.m. on December 10, 2014, the FBI took physical custody of A.S.R. and advised him of his rights. Id. The FBI agent’s affidavit states that “[a]t no time while A.S.R. was in [the FBI agent’s] custody on December 10, 2014, did [he] or any other law enforcement officer in [his] presence attempt to question A.S.R. about criminal activities.” Id.

The defendant was brought before Magistrate Judge Callahan at 2:00 p.m. on that same day (December 10, 2014) for his initial appearance (see Docket # 9), and was ordered detained. (Docket # 8). On December 11, 2014, the defendant came before the Court for a hearing on the motion for mandatory transfer (see Docket # 11), and the defendant informed the Court of his intent to oppose the motion for mandatory transfer. Id. The defendant filed a brief in opposition to the government’s mandatory transfer motion on December 19, 2014. (Docket # 12). The government filed a reply on December 31, 2014. (Docket # 13).

On January 8, 2015, the defendant requested oral argument on the government’s motion for mandatory transfer; the government did not oppose this request. (Docket # 15). The Court granted the defendant’s request and held oral argument on January 20, 2015. (See Docket # 16, # 17).

Now having all the pertinent facts before the Court and full briefing by the parties, the Court turns to the government’s motion for mandatory transfer and will grant it for the reasons that follow.

2. DISCUSSION

The defense has raised objections to the government’s motion for mandatory transfer on two grounds: (1) a failure to meet the requirements of § 5032, thus precluding mandatory transfer; and (2) violations by the government of § 5033 that require dismissal of the entire case. The Court will address each objection in turn, below.

[713]*7132.1 18 U.S.C. § 5032

“Section 5032 envisions two avenues by which a transfer [of a juvenile to adult status] may occur. First there are so-called permissive transfer provisions.... The second avenue by which a juvenile may be transferred to adult status is by way of the mandatory transfer provision.” Impounded, 117 F.3d 730, 732 (3d Cir.1997). The latter is at issue, here.

The mandatory transfer provision provides that:

a juvenile who is alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a felony offense that has as an element thereof the use, attempted use, or threatened use of physical force against the person of another, or that, by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense, or would be an offense described in section 32, 81, 844(d), (e), (f), (h), (i) or 2275 of this title, subsection (b)(1)(A), (B), or (C), (d), or (e) of section 401 of the Controlled Substances Act, or section 1002(a), 1003, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and Export Act (21 U.S.C. 952

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Cite This Page — Counsel Stack

Bluebook (online)
81 F. Supp. 3d 709, 2015 U.S. Dist. LEXIS 8865, 2015 WL 328339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-asr-wied-2015.