United States v. Jerome T. Bland

472 F.2d 1329

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 19, 1973
• Docket: 71-1761
• Status: Published

Opinions

WILKEY, Circuit Judge:

The United States as statutory appellant seeks review of a memorandum opinion and order of the United States District Court for the District of Columbia, holding 16 D.C.Code § 2301(3) (A) unconstitutional as (1) an arbitrary legislative classification and (2) a negation of the presumption of innocence.¹ Section 2301(3)(A) provides:

The term “child” means 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, or (ii) an offense listed in clause (i) and any other offense properly joinable with such an offense. . .²

The appellee, born 30 July 1954, had been indicted pursuant to Section 2301(3) (A) as an adult (he was sixteen at the time of his arrest and indictment) on charges of armed robbery of a post office and related offenses on 8 February 1971. Appellee moved below to dismiss the indictment for lack of jurisdiction, asserting that the statutory basis for prosecuting him as an adult was constitutionally deficient in that it failed to provide him with procedural due process. The District Court dismissed the indictment.³

1. The Legislative Background

Congress, pursuant to its constitutional authority to exercise exclusive jurisdiction over the District of Columbia,⁴ created the Family Division of the Superior Court of the District of Columbia.⁵ In defining the jurisdiction of the Family Division, Congress conferred on it exclusive jurisdiction of “proceedings in which a child, as defined in section 16-2S01, is alleged to be delinquent, neglected, or in need of supervision.” ⁶ Thus, the Family Division’s jurisdiction extends over a person — a child — alleged to have committed delinquent acts, a child being classified as a person not having yet reached the chronological age of 18 and not charged by the United States Attorney with certain specified crimes listed in 16 D.C.Code § 2301. As to any other individual, either one who has reached 18 or who has reached the age of 16 and has been charged by the United States Attorney with one or more of the enumerated felonies,⁷ he is not a child and is to be prosecuted in the regular adult court system, whether it be the D.C. Superior Court or the United States District Court.⁸

(3) The term “child” means 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—

(B) charged with an offense referred to in subparagraph (A) (i) and convicted by plea or verdict of a lesser included offense; or

(C) charged with a traffic offense. For purposes of this subchapter the term “child” also includes a person under the age of twenty-one who is charged with an offense referred to in sub-paragraph (A) (i) or (C) committed before he attained the age of sixteen, or a delinquent act committed before he attained the age of eighteen.

The legislative history accompanying 16 D.C.Code § 2301 reveals Congress’ intent in enacting this legislation: To improve the operation of the juvenile justice system in the District of Columbia by removing from its jurisdiction certain individuals between the ages of 16 and 18 whom Congress concluded (1) were beyond rehabilitation in the juvenile justice system, and (2) whose presence in that system served as a negative influence on other juveniles. This represents a policy judgment of Congress, after gathering extensive appropriate evidence, as to how persons should be classified as “adult” and “child” for the purposes of rehabilitation following the commission of a criminal offense. We note that the policy judgment was both negative and positive: some previously classified as juveniles were beyond rehabilitation ; others of the same chronological age were susceptible to special juvenile treatment, and for any chance of success these latter should be protected against the hard-core repeat offenders of the same chronological age.

While Congress easily could have established 16 as the age cutoff date (it is not clear what constitutional infirmities our dissenting colleague would have found in that less sympathetic approach), it concluded that some within the 16-18 age bracket were susceptible of rehabilitation, and determined that those age 16 and 17 whose offenses charged were minor were to be included within the juvenile system. As the Department of Justice made clear in its Memorandum to the Senate Committee:

The jurisdictional age for all juveniles was not lowered to 16 because there are still first offenders charged with minor offenses who may benefit from juvenile treatment up to the age of 18, and treating them as adults may be harsh and unnecessary. At the same time, experience has shown that in certain crime categories, , juvenile treatment is unworkable. Accordingly, the jurisdictional age has been lowered with respect to these crimes.⁹

Under the initial Senate version of Section 2301, the jurisdiction of the Family Division

extends, in general, to persons under the age of 18. Excluded from the latter class, however, is any' person 16 years of age or older in any case (1) where such person is formerally [sic] charged with the commission of one or more of certain enumerated grave offenses, and (2) where such persons has [sic] previously had the benefit of special juvenile disposition after being charged with serious misconduct committed after attaining the age of 15.¹⁰

The Senate Committee on the District of Columbia, in revealing its rationale for excluding such persons from the jurisdiction of the Family Division, stated:

The Committee has concluded that a juvenile can reliably be considered too well formed or sophisticated for, and beyond the reach of, mere juvenile therapy if the particular juvenile has already been exposed, in years of relative discretion, to the juvenile system and treated to the extent that his case required (as suggested by a prior finding of delinquency), and has nevertheless returned to serious misconduct (as suggested by a serious felony charge).¹¹

The initial House version of Section 2301 provided that “a person, 16 years of age or older, who is charged by the United States attorney with an enumerated violent crime [a more extensive list than contained in the initial Senate version] is automatically subject to the jurisdiction of the adult court.”¹² The House Committee on the District of Columbia, referring to the same statistics on serious offenses committed by juveniles and to the growing recidivist rate among this group cited by the Senate Committee,¹³ gave the following as the basis for its exclusion of those 16 years of age or older charged with a certain serious crime from the Family Division’s jurisdiction:

Because of the great increase in the number of serious felonies committed by juveniles and because of the substantial difficulties in transferring juvenile offenders charged with serious felonies to the jurisdiction of the adult court under present law, provisions are made in this subchapter for a better mechanism for separation of the violent youthful offender and recidivist from the rest of the juvenile community.¹⁴

As finally enacted, Section 2301 reflects a compromise between the initial Senate and House versions. It provides that the Family Division shall have jurisdiction over “persons under 18 except those 16 and older charged by the United States attorney with murder, forcible rape, robbery while armed, burglary in the first degree, or assault with intent to commit one of these offenses, or any such offense and a properly joinable offense.” ¹⁵ As such, it eliminates the previous finding of delinquency required under the initial Senate version and shortens the list of serious crimes contained in the initial House version.

11. The Due Process and Equal Protection of the Law Issue

The District Court found Section 2301(3) (A) invalid as violative of due process of law:

The determination that a child should be tried as an adult cannot be made without the safeguard of basic due process. Without a provision in the new statute that would require some determination, reached after a fair hearing, that an individual is beyond the help of the Family Division, that statute must fall as violative of due process.¹⁶

To the Government’s objection below that the statute specifically classifies those individuals who are at least 16 years of age and charged with certain enumerated crimes by the United States Attorney as exempt from the Family Division’s jurisdiction, the District Court found no standards in the statute to guide the United States Attorney in making this determination, hence it held that the statute denies due process to those individuals so charged.

A.

In relation to this holding of the District Court, we note in the first place that legislative classifications are entitled to a strong presumption of validity and may be “set aside only if no grounds can be conceived to justify them.”¹⁷ As the Supreme Court has long held:

It is a salutary principle of judicial decision, long emphasized and followed by this Court, that the burden of establishing the unconstitutionality' of a statute rests on him who assails it, and that courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators.¹⁸

As the discussion on the legislative background of Section 2301(3) (A), supra, indicates, Congress was well, acquainted with the problems confronting the juvenile justice system in the District of Columbia; logically its definition of the Family Division’s jurisdiction reflects its particular concern with the rise in the number of serious crimes committed by those 16 years of age and over coupled with the growing recidivist rate among this group.

Secondly, legislative exclusion of individuals charged with certain specified crimes from the jurisdiction of the juvenile justice system is not unusual. The Federal Juvenile Delinquency Act excludes offenses which, are punishable by death or life imprisonment. Several states have similarly excluded certain crimes in defining the jurisdiction of their respective systems of juvenile justice,¹⁹ while others vest concurrent jurisdiction over enumerated crimes in both their adult and juvenile courts.²⁰ Finally, the United States District Court for the District of Maryland, upheld by the Fourth Circuit, while it did find a geographic age distinction in the jurisdiction of the Maryland Juvenile Court violative of due process, found no difficulties with the exclusion of those 14 years of age and over charged with capital crimes from juvenile jurisdiction.²¹

B.

The disagreement of our dissenting colleague arises almost solely from his fundamental unwillingness to accept Congress’ power to define what is a “child.” The words “child,” “infant,” and “minor” from early times in various legal systems have been susceptible to definition by statute; the critical “age” for specified purposes has Varied, and differed between male and "female. See Bouvier’s Law Dictionary; Black’s Law Dictionary. Before 1970 the District of Columbia Code (16 D.C.Code § 2301 (1967)), defined “child” as “a person under 18 years of age.” Our dissenting colleague seems to consider this statute and its definition immutable, apparently because it was involved in Kent v. United States;²² we accept the fact that Congress has abolished this statutory definition and by statute substituted another, to which we simply give full effect.

We think the position of the appellee here would have more validity if it were possible to read (as apparently the dissenting opinion does) the word “child” as “child (as defined in the previous and now repealed statute),” but of course this is absurd. Yet it is necessary that the meaning of “child” be as defined in the repealed statute for the legal position of the appellee to be sustained. Believing that Congress has power to amend a statutory definition, we start with the definition of “child” currently on the statute books, and reach the legal conclusions set forth herein.

Similarly, the appellee’s argument on an alleged “waiver” of the jurisdiction of the Family Court is based on the now outmoded definition. The District of Columbia Code states clearly that the jurisdiction of the Family Division of the Superior Court in delinquency eases is limited to those who come within the statutory definition of “child.” 11 D.C.Code § 1101 provides:

The Family Division of the Superi- or Court shall be assigned, in accordance with chapter 9, exclusive jurisdiction of—

(13) proceedings in which a child, as defined in 16-2301, is alleged to be a delinquent. . . . (Emphasis supplied.)

Until it is determined whether a person is a “child” within the statutory definition, there is no jurisdiction; therefore, a fortiori there can be no waiver of jurisdiction.

Nor is it true “a suspected juvenile remains a child until he is charged with an enumerated offense by the United States Attorney.” There is just no classification of the person as a child or an adult until (1) his age is accurately ascertained, and (2) the decision on prosecution is made. Congress has incorporated more than one element in the definition of a “child.” Until all the elements of the definition are ascertained, the status of the person is simply uncertain, just as under the 1967 definition the status of a person would be uncertain until his true age was established.

C.

The District Court’s finding in the case at bar, and appellee’s assertion to the same effect — 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, thereby initiating that person’s prosecution as an adult, violates due process — ignores the long and widely accepted concept of prosecutorial discretion, which derives from the constitutional principle of separation of powers. The Fifth Circuit, in holding that a court had no power to compel a United States Attorney to sign an indictment, stated:

Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.²³

While there may be circumstances in which courts would be entitled to review the exercise of prosecutorial discretion, these circumstances would necessarily include the deliberate presence of such factors as “race, religion, or other arbitrary classification,” not found in the case at bar.²⁴ For example, in the absence of such factors, this court has held that the exercise of prosecutorial discretion, even when it results in different treatment of codefendants originally charged in the same case with the same offense, does not violate due process or equal protection of the law.²⁵

The District Court and appellee in the ease at bar point to the acknowledged significant effect of the United States Attorney’s decision whether to charge an individual 16 years of age or older with certain enumerated offenses, and conclude that, in the absence of a hearing, due process is violated when such a decision is made. This, however, overlooks the significance of a variety of other common prosecutorial decisions, e. g., whether to charge one person but not another possible codefendant; whether to charge an individual with a misdemeanor or a felony; etc.²⁶ Furthermore, the decision whether to charge an individual with a misdemeanor or a felony has long determined the court in which that person will be tried.²⁷ We cannot accept the hitherto unaccepted 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. Grave consequences have always flowed from this, but never has a hearing been required.

While the Supreme Court was presented with the precise question raised by this appeal on an earlier occasion, it declined to rule on the question because of “the barrenness of the record on this issue,” including the failure of the Nebraska Supreme Court to pass on it, and the fact that “[s]o far as we have been made aware, this issue does not draw into question the validity of any Nebraska statute.” ²⁸ The Federal Juvenile Delinquency Act, however, presents an analogous situation on which courts have passed judgment. Section 5032 of the Act provides in relevant part:

A juvenile alleged to have committed one or more acts in violation of a law of the United States not punishable by death or life imprisonment, and not surrendered to the authorities of a state, shall be proceeded against as a juvenile delinquent if he consents to such procedure, unless the Attorney General, in his discretion, has expressly directed otherwise.²⁹

The discretion provided the Attorney General under this section can, of course, result in vastly different consequences for an individual subject to the Act since commitment of a juvenile adjudicated delinquent may continue under the Act,³⁰ as under the comparable provision of the D.C.Code,³¹ only for the remainder of the youth’s minority. Despite the significance of this decision, Judge Weinfeld of the District Court for the Southern District of New York stated:

. under this section [§ 5032], which requires the juvenile’s consent to such proceeding, the ultimate decision as to whether the Government will forego prosecution under the general criminal statutes rests in the sole discretion of the Attorney General. The Assistant Attorney General, who is authorized to exercise the Attorney General’s discretion, has directed that this defendant be prosecuted under regular adult criminal procedures. The Court is without power to interfere with or overrule the exercise of this discretion.³²

As such, judicial consideration of the legitimate scope of prosecutorial discretion clearly encompasses the exercise of such discretion where it has the effect of determining whether a person will be charged as a juvenile or as an adult. In the absence of such “suspect” factors as “race, religion, or other arbitrary classification,” the exercise of discretion by the United States Attorney in the case at bar involves no violation of due process or equal protection of the law.

III. The Presumption of Innocence Issue

The District Court and appellee assert that the exercise of discretion by the United States Attorney under Section 2301(3) (A) violates due process in that it denies the individual charged the presumption of innocence.

This, however, mistakes the nature of the United States Attorney’s decision in the case at bar to charge appellee with an offense enumerated in Section 2301(3)(A). While the decision does have the effect of determining whether appellee is to be tried as an adult or a juvenile, it is not a judgment of guilt or an imposition of penalty. On the contrary, it is simply the result of a determination by the United States 'Attorney that there is sufficient evidence to warrant prosecution of the appellee for the offense charged and that adult prosecution is appropriate. It in no manner relieves the Government of its obligation to prove appellee’s guilt beyond a reasonable doubt.³³ Nor does it remove ap-pellee’s right to a jury trial. As the subsequent opinion of District Judge Ge-sell, ruling on this same issue under this statute, recognized:

It should be noted that all the traditional protections of grand jury presentment, preliminary hearing and jury trial are afforded this group of [alleged] offenders and that in the event of convictions the extraordinarily flexible provisions of the Federal Youth Correction Act designed to create programs for limited incarceration and effective rehabilitation are completely available.³⁴

The presumption of innocence, as the Supreme Court has long held, applies to the prosecution at trial and “ . is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven [beyond a reasonable doubt] to be guilty.” ³⁵ As such, the District Court’s opinion below and appellee's reliance on, inter alia, Goldberg v. Kelly³⁶ and Jones v. Robinson³⁷ is mistaken; in contrast to the summary adjudications found wanting in those cases, the United States Attorney’s decision in the case at bar marks only the beginning of the process of adjudication of appellee’s guilt, a process marked by the presence of all the traditional protections or procedural due process, followed by the extraordinarily liberal rehabilitation provisions of the Federal Youth Corrections Act.

IV. Conclusion

For these reasons, the order of the District Court dismissing appellee’s indictment, on the basis of its opinion holding 16 D.C.Code § 2301(3) (A) unconstitutional as an arbitrary legislative classification and as a negation of the presumption of innocence, is accordingly reversed and the case remanded for trial.

Reversed and remanded.

1 . United States v. Bland, 330 F.Supp. 34 (D.D.C. 1971).

2 . 16 D.C.Code § 2301(3) (A) (Supp. IV, 1971).

3 . Subsequent to the District Court’s opinion and order in the case at bar, other judges of the United States District Court for the District of Columbia have ruled on the same issue, the first six to the contrary: (1) United States v. Tatum (Crim. No. 1145-71 ; order entered 29 September 1971; Judge Jones) ; (2) United States v. Riley (Crim. No. 1510-71; order entered 4 October 1971; Judge Smith) ; (3) United States v. Alexander, 333 F.Supp. 1213 (D.C.D.C.1971) (Judge Gesell) ; (4) United States v. Dickey, et al. (Crim. No. 1448-71; order entered Juno 14, .1972; Judge Gasch) ; (5) United States v. Steele (Crim. No. 1085-71; order entered 27 Oct. 1971; Judge Corcoran) ; (6) United States v. Reginald Barden (Crim. No. 271-72; order entered 16 March 1972; Judge Flannery) ; (7) United States v. McIlwain (Crim. No. 1178-71; order entered 10 May 1972; Judge Bryant) ; (8) United States v. Maurice L. Johnson (Crim. No. 2198-71; order entered May 10, 1972; Judge Bryant) ; and (9) United States v. Andrew E. Morgan (Crim. No. 850-71; order entered May 10, 1972; Judge Bryant).

4 . U.S.Const. art. I, § 8, cl. 17.

6 . Id., at § 1101(13) (emphasis supplied).

7 . 16 D.C.Code § 2301(3) also provides:

8 . There is a transition in progress involving the criminal jurisdiction of each court as a result of the enactment of the District of Columbia Court Reform and Criminal Procedure Act of 1970. Pub.L.91-358, 84 Stat. 473, 29 July 1970. After 1 August 1972, all adult criminal offenses under the D.C.Code will be prosecuted in the new Superior Court, 11 D.C. Code § 923 (Supp. IV, 1971), and all adult U.S.Code offenses will be prosecuted in the United States District Court, 11 D.C.Code § 502 (Supp. IV, 1971). Where a defendant is charged with violations of both the D.C. and U.S.Codes, he will be prosecuted in the United States District Court, 11 D.C.Code § 502(3) (Supp. IV, 1971). See also note 3, supra, United States v. Alexander, 333 F.Supp., at 1214-1215.

9 . U.S. Dept. of Justice Staff Memorandum on Proposed Code of Juvenile Procedure for the District of Columbia (S. 2981) (1969), printed in “Crime in the National Capital,” Hearings Before the Senate Committee on the District of Columbia on S. 2981, Juvenile Court Proceedings, 91st Cong., 1st Sess. pt. 7, at 1816 (1969).

10 . S.Rep. No. 620, 91st Cong., 1st Sess. 8 (1969).

11 . Id., at 8-9. The Committee also noted, however: “Conversely, the committee did not take so dim a view of juveniles in the 16- to 18-year old age group generally as to presume sophistication in every case involving serious misconduct — and especially in eases involving first offenders or where any previous offense was committed before the onset of a relatively significant degree of discretion.” Id., at 9. As such, “[t]he committee was not inclined, therefore, to approve a lowering of the jurisdictional age limit (for the Family Division) in simple reaction to statistic indicating a greater incidence of crime committed by juveniles aged 16 to 18.” Id., at 8.

12 . H.R. Rep. No. 907, 91st Cong., 2d Sess. 50 (1970).

13 . Id., at 48-49. The alarm felt by the House Committee as a result of its investigation is nowhere better set forth than in the portion of the Committee Report quoted by our dissenting colleague, footnote 3.

14 . Id., at 50.

15 . H.R. Rep. 1303, 91st Cong., 2d Sess. 226 (1970).

16 . See note 1, supra, at 38.

17 . McDonald v. Board of Election Com’rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969), and cases cited.

18 . Metropolitan Casualty Insurance Co. v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070 (1935) (footnote omitted).

19 . Colo.Rev.Stat., §§ 22-1-3 (17) (b), 22-1-4(4) (b) ; 10 Del.Code Ann. § 957, 11 Del. Code Ann. §§ 360(b), 363(d), 468A; Burns’ Ind.Stat. §§ 9-3204(1), 9-3213, IC 1971, 31-5-7-4, 31-5-7-13; Iowa Code Ann. § 232.64; La. Const., art. 7, § 52; Md. Code Ann., art. 26, § 70-2 (d) (1) ; Miss. Code Ann. § 7185-15; Nev. Rev.Stat. § 62.050; S.C. Const., art. 5, § 1; and Tenn. Code Ann. § 37-265.

Challenges to these provisions as violative of due process and equal protection of the law have not prevailed. See State v. Ayers, Del., 260 A.2d 162 (1969), in which the court rejected a Fourteenth Amendment challenge to 11 Del. Code Ann. § 363(d) (an anti-riot statute), which provided that those over sixteen years of age and charged with violating this statute were to be tried as adults. See also, to the same effect, Prevatte v. Director, 5 Md.App. 406, 248 A.2d 170 (1968), and Davis v. State, Miss., 204 So.2d 270, rev’d on other grounds, 394 U. S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) .

20 . 37 Ill.Ann.Stat. § 702-7(3), upheld in People v. Carlson, 108 Ill.App.2d 463, 247 N.E.2d 919.(1969). See also DeBacker v. Sigler, 185 Neb. 352, 175 N.W.2d 912 (1970), and Mayne v. Turner, 24 Utah 2d 195, 468 P.2d 369 (1970), sustaining concurrent jurisdiction in their respective adult and juvenile courts over certain enumerated offenses.

21 . Long v. Robinson, 316 F.Supp. 22 (D. Md.), aff’d 436 F.2d 1116 (4th Cir. 1971).

22 . 383 U.S. 541, 86 S.Ct. 1045,16 L.Ed.2d 84 (1966).

23 . United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965) (footnote omitted). See also Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234, cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966) , and Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967). In the latter this court stated:

Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.

127 U.S.App.D.C. at 264, 382 F.2d at 480. See also Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964, cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965).

24 . As the Supreme Court suggested in Oy-ler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) :

Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it is not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged.

368 U.S., at 456, 82 S.Ct. at 506. See also Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915 (1968), and United States v. CCO, 428 F.2d 264 (9th Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140 (1970).

25 . See note 23, supra, Newman v. United States. In a more recent case, this court stressed the extent of legitimate prosecutorial discretion, even in the context of a ease in which the trial judge believed a clear abuse of such discretion was involved. United States v. Gainey, 142 U.S.App.D.C. 262, 440 F.2d 290 (1971).

26 . Appellee’s attempt to equate the .United States Attorney’s decision in' the case at bar with the transfer of an individual from the jurisdiction of the juvenile court to that of adult court is unavailing. In contrast to such a situation, the case at bar involves no initial juvenile court jurisdiction ; the United States Attorney’s decision to charge an individual sixteen years of age or older with certain enumerated offenses operates automatically to exclude that individual from the jurisdiction of the Family Division. The cases cited by the appellee are equally inapposite: In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), did not involve the question of adult court jurisdiction over persons sixteen years of age or over; Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), Haziel v. United States, 131 U.S.App.D.C. 298, 404 F.2d 1275 (1968), and Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965), all involved the “full investigation” requirement of 11 D.C. Code § 1553 (1967), the former local juvenile statute. Under former Section 1553, individual judgments were to be made by the Juvenile Court as to whether a particular youth should be “waived” for trial as an adult. The comparable transfer provision of the revised juvenile statute, 16 D.C. Code § 2307 (Supp. IV, 1971), is not at issue in the case at bar, which involves determination of which jurisdiction — adult or juvenile — attaches to appellee in the first instance. As such, it cannot involve a transfer from a nonexistent juvenile jurisdiction to adult court.

27 . Also, since 1 February 1971 in the District of Columbia, the decision of which felony to charge has similarly determined the court having jurisdiction. 11 D.C. Code §§ 502, 923 (Supp. IV, 1971).

28 . DeBacker v. Brainard, 396 U.S. 28, 32, 90 S.Ct. 163, 165, 24 L.Ed.2d 148 (1969), in which the Supreme Court dismissed the grant of certiorari as “improvidently granted.” Id., at 33, 90 S.Ct. 163. In a subsequent case, the Nebraska Supreme Court considered the same question and found the exercise of such discretion did not violate due process. See note 20, supra, DeBacker v. Sigler.

29 . See 18 U.S.C. § 5032 (1970).

30 . Id., at § 5034.

31 . 16 D.C. Code § 2322(f).

32 . United States v. Verra, 203 F.Supp. 87, 91 (S.D.N.Y.1962) (footnote omitted) ; accord, Ramirez v. United States, 238 F.Supp. 763, 764 (S.D.N.Y. 1965).

33 . Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).

34 . See note 3, supra, United States v. Alexander, 333 F.Supp., at 1217.

35 . Coffin v. United States, 156 U.S. 432, 458, 15 S.Ct. 394, 404, 39 L.Ed. 481 (1895).

36 . 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), which, involved the cutting off of welfare funds without adequate notice and a prior hearing at which the wel-faro recipient could have the assistance of counsel and where the decision-maker did not state his reasons or the evidence upon which he based his decision.

37 . 142 U.S.App.D.C. 221, 440 F.2d 249 (1971), applying the requirement of, inter alia, a hearing enunciated by Goldberg v. Kelly, note 36, supra, to the decision to transfer a patient accused of a crime to the maximum security section of St. Elizabeths Hospital.