United States v. Cheryl Dawn James

464 F.2d 1228, 1972 U.S. App. LEXIS 8229

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 26, 1972
• Docket: 71-1919
• Status: Published

Opinions

SCHNACKE, District Judge:

Appellant, following proceedings conducted under the Federal Juvenile Delinquency Act (the FJDA), 18 U.S.C. § 5033, was adjudged to be a juvenile delinquent by virtue of two violations of 18 U.S.C. § 111, consisting of assaults upon agents of the Federal Bureau of Investigation. We affirm.

At the time of the offense, appellant was seventeen years of age and thus eligible for trial and sentence under the FJDA. It is undisputed that appellant was fully informed of her right to prosecution by indictment, to trial thereupon by jury, and of the consequences of her consent to proceedings under the FJDA. Thus informed, she expressly waived such rights and consented to the FJDA proceeding.

It is now contended that the waiver specified in the FJDA is ineffective and the FJDA unconstitutionally denies a juvenile the right to a jury trial guaranteed by the Sixth Amendment.

Appellant relies upon Nieves v. United States, 280 F.Supp. 994 (S.D.N.Y., 1968) which rested heavily upon the then recently decided In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and even charges trial counsel with incompetence for not advising appellant that, under Nieves, she could demand a jury trial despite her election to be proceeded against under the FJDA.

However, the law has developed, if not changed, since Nieves was decided. Most notably, the Supreme Court in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) held that, despite Gault, a jury is not required in state court juvenile proceedings, pointing out that,

“The Court, however, has not yet said that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceedings.” (Opinion of Mr. Justice Blackmun, 403 U.S. 528, at p. 533, 91 S.Ct. 1976, at p. 1980; emphasis the Court’s.)

McKeiver, of course, did not deal expressly with the FJDA. However, its reasoning, particularly its concern that

“. . . There is a possibility, at least, that the jury trial, if required as a matter of constitutional precept, will remake the juvenile proceeding into a fully adversary process and will put an effective end to what has been the idealistic prospect of an intimate, informal protective proceeding.” (403 U.S. 528, 545, 91 S.Ct. 1976, 1986.)

is fully as applicable to proceedings under the FJDA as to state court juvenile proceedings. The Court of Appeals for the Eighth Circuit has so held, Cotton v. United States, 446 F.2d 107 (1971), and we agree.

The balance of the appeal relates to the circumstances surrounding the offenses with which appellant was charged. In brief summary, these are: Having been instructed to seek appellant’s brother, Charles James, a military deserter, four FBI agents went to a house in Portland occupied by appellant’s family. Outside they observed a man answering the description of Charles James (and who later proved so to be) entering the house with others. The agents entered the house through the front door, left open by a young man who had preceded the agents into the house. The agents identified themselves, and arrested Charles James. At this point they were attacked by Charles James, other family members and by the family dog. One agent was floored by a rolling pin wielded by appellant, then kicked in the face by Charles James. Another agent then tried to control Charles James, and was kicked in the crotch by appellant.

Appellant urges that the agents unlawfully entered the house, that the arrest of Charles James was thus illegal, and, therefore, that defendant’s assault on the agents was no offense. The contention is without merit.

Agents of the Federal Bureau of Investigation may make arrests, 18 U.S. C. § 3052, and any civil officer having authority to apprehend offenders under any federal or state law may summarily apprehend a deserter and deliver him into custody. 10 U.S.C. § 808. To accomplish the arrest they may enter premises where they have reasonable cause to believe the deserter may be found. Michael v. United States, 393 F.2d 22 (10th Cir., 1968). This is certainly so if there is no force used and the entry is through an open door. Dickey v. United States, 332 F.2d 773 (9th Cir., 1964).

The contention is also made that defendant was not aware of the official status of the victim. On sufficient evidence, including proof of a further assault at the time of her later arrest when she unquestionably knew the agents’ status, the trial judge properly found to the contrary. In any event, knowledge of such status is not an element of the offense. McEwen v. United States, 390 F.2d 47 (9th Cir., 1968).

Other points raised by appellant are insubstantial and require no discussion.

The judgment is affirmed.