United States v. E. K. (471 F. Supp. 924, 1979)

OPINION

JAMES M. BURNS, District Judge:

This case presents the bleakest of dramas. The events are unrelievedly sad for society and unutterably tragic for the young man who has been thrust on center stage as the main actor. The misshapen young life of this accused juvenile; the wasted lives of his natural and step-parents whose neglect has contributed to and exacerbated his plight; the misery and abject hopelessness which pervade the conditions with which he has been surrounded; the fear and harm which he has caused his victims; the complex governmental, social and cultural conditions which have combined to furnish, at best, only a dim and distant hope for the future of this juvenile; the escalating nature of the harm which he can, and perhaps will do — all these factors, and others equally distressing, are the raw material out of which this drama emerges.

But this is no mere stage drama. It is an all too real criminal episode in which the juvenile committed or was accused of committing serious — even dangerous — acts, which if all were proved against an adult would be punishable by 30 years imprisonment. This is nearly twice the young man’s present age.

E.K. is a Warm Springs Indian. For most of his life, he has lived on the Warm Springs Reservation. He is 17 years old, his birth date being March 20, 1962.

On March 9, 1979, the government filed an information charging E.K. with three acts of juvenile delinquency, including burglary (Count I), theft (Count II), and assault with a deadly weapon (Count III). The maximum sentences available for each, if committed by an adult, would be 20 years on Count I and 5 years for each of Counts II and III. Accordingly, the government was authorized to move to transfer him to adult status. 18 U.S.C. § 5032. The government filed a motion to transfer the proceeding to adult court after filing an appropriate certification that the State of Oregon lacks jurisdiction because E.K. is an Indian, the alleged crime occurred on the Warm Springs Indian Reservation, and that the Warm Springs Tribal Court does not have available programs or services adequate for the needs of the defendant. Id. A transfer hearing was held March 29,1979. I took the matter under advisement.

On April 4, 1979, I delivered a brief oral opinion denying the motion to transfer. The substance of the record made there was that I could not conclude that a transfer would be in “the interest of justice” (§ 5032) in this case because E.K. demonstrated some potential for rehabilitation, under special circumstances, during the period of his minority. I stated that I had considered all statutory criteria. I made oral findings as to each sufficient to deny the motion to transfer. I stated I would later reduce those findings to written form. I then postponed the dispositional hearing on the matter until April 9. As a part of this ruling, I made an oral finding that excludable delay had occurred. Any issue of excludable delay became moot on April 6. On that date E.K. came before the court and, pursuant to a “plea bargain,” admitted Count I (burglary) as charged in the information, and the government agreed to dismiss the other two counts. Thereafter, at a separate dispositional hearing, § 5037, I committed E.K. to the custody of the Attorney General until his 21st birthday.

I. JURISDICTION OF THIS COURT:

The contention was raised that this court lacks jurisdiction to hear this matter because the State of Oregon, notwithstanding the certification to the contrary filed with this court, does in fact have jurisdiction over the person of the juvenile. Counsel for the juvenile relies upon ORS 419.476 which provides that:

. The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and: . . . Who has committed an act which is a violation, of which if done by an adult would constitute a violation, of a law ... of the United States . . . . (Emphasis added.)

The “juvenile court” referred to is of course a court of general and equitable powers with jurisdiction over certain subject matter relating to juveniles and domestic affairs, all of a civil nature. ORS 419.472-419.476.

This argument fails. The State of Oregon does not have jurisdiction over the person of E.K. for the purposes of a civil proceeding such as an adjudication of delinquency, and it does not have jurisdiction over the substantive criminal offenses which comprise the alleged acts of juvenile delinquency.

A. OREGON HAS NO JURISDICTION OVER A CIVIL PROCEEDING ARISING ON THE WARM SPRINGS RESERVATION TO WHICH A WARM SPRINGS INDIAN IS A PARTY

Generally speaking, an Indian tribe possesses all the powers of a sovereign state, including the powers of internal governance over relationships between tribal members. While these powers are of course limited by treaties and subsequent acts of Congress, unless so qualified, jurisdiction over the conduct between and among Indians within Indian Country remains vested in the tribes and their duly constituted tribal governments. See, F. Cohen, Handbook of Federal Indian Law 123 (1945).

While Congress has withdrawn federal jurisdiction over criminal offenses and granted both criminal and civil jurisdiction in Indian Country to certain designated states, 18 U.S.C. § 1162(a) and 28 U.S.C. § 1360(a), it has specifically exempted from any grant of jurisdiction that geographical area in the State of Oregon lying within the Warm Springs Reservation. Thus the juvenile court of the State of Oregon does not have jurisdiction over any juvenile proceeding to which a Warm Springs Indian, domiciled upon the reservation, is a party. In fact, the state has in the past sought to exercise juvenile court jurisdiction only over Indian infants (not members of a tribe within territory exempted from state jurisdiction by 28 U.S.C. § 1360(a)) where such children had not lived on a reservation and were not claimed to have ever been domiciled upon a reservation. State ex rel. Juvenile Dept. v. Greybull, 23 Or.App. 674, 677-78, 543 P.2d 1079, (1975).

In short, I conclude that where the State of Oregon has not been granted extraterritorial jurisdiction over the person of a Warm Springs Indian for any civil or criminal matter arising upon the Warm Springs Reservation, extraterritorial jurisdiction does not exist in the juvenile court of the circuit court of the state merely because the juvenile is such a Warm Springs Indian who is under 18 and has committed an act which, if done by an adult, would be a violation of a law of the United States.

B. OREGON HAS NO JURISDICTION OVER THE FEDERAL OFFENSES WHICH CONSTITUTE THE ALLEGED ACT OF JUVENILE DELINQUENCY IN THIS CASE

I reach the same conclusion, namely, that the state lacks jurisdiction in this matter, by another line of reasoning as well.

Under the interplay of laws in this case, an anomaly would result if the juvenile’s jurisdictional argument were correct. If E.K., a Warm Springs juvenile, were indeed subject to the jurisdiction of the juvenile court of the state, his case would be incapable of transfer to an adult court of the state. In short, he would be a non-remand-able juvenile, despite the provisions of ORS 419.533. He is charged with a federal offense over which the adult state court has no jurisdiction. Hence, the state could not have criminal jurisdiction over him as an adult.

Thus, no matter what the circumstances, nor how aggravated the crime, a Warm Springs juvenile offender could never be tried as an adult in state court where the offense occurred on the reservation.

Faced with a similar situation, the Eighth Circuit has apparently concluded that the exclusive federal jurisdiction over the acts enumerated in § 1153 precludes state jurisdiction when the alleged act of juvenile delinquency does not constitute a cognizable state offense as well as a federal crime. This is the situation which arises with a violation by an Indian on a reservation on exempted Indian Country. See U. S. v. Allen, 574 F.2d 435, 438 n.5 (8th Cir. 1978). The Eighth Circuit’s construction of the Juvenile Delinquency Act assumes that the state must properly be able to exercise jurisdiction over the person for the very act which is the basis for the charge of juvenile delinquency.

II. STANDARD OF ADMISSIBILITY OF EVIDENCE IN A HEARING ON A MOTION TO TRANSFER:

Counsel for the juvenile raised an objection to the evidence submitted at the transfer hsaring as to the circumstances of the facts out of which the juvenile accusation arose. This evidence came in the following fashion. A preliminary hearing (or its equivalent) was held before the Magistrate shortly after the juvenile was taken into custody. At the transfer hearing, the government offered (Ex. 4) a transcript of the testimony of an FBI agent who was the sole witness at the preliminary hearing. The agent’s testimony recited the substance of the three charges, as told to him by relevant tribal police and residents who had first-hand knowledge of the activities of the juvenile. Counsel’s objection was, essentially, based upon hearsay and upon confrontation and due process constitutional grounds.

The Federal Juvenile Delinquency Act (FJDA) of 1974, Public Law 93-415, Title V, 18 U.S.C. §§ 5031-5042, defines juvenile delinquency as “the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult.” 18 U.S.C. § 5031. An adjudication of delinquency under the provisions of this act is a determination of status, and not a conviction of crime. Allen, supra, 574 F.2d at 437. See also, similar conclusion reached under the same provisions of prior law, U. S. v. King, 482 F.2d 454, 456 (6 Cir. 1973).

The FJDA thus does not define a separate offense, but “establishes a procedural mechanism for the treatment of juveniles who are already subject to federal jurisdiction . . . .” Allen, supra, 574 F.2d at 437. In the present matter, the youth, E.K., is subject to the jurisdiction of this court because he is á Warm Springs Indian and the acts charged are crimes as defined by the applicable federal statutes, 18 U.S.C. § 1153. Being subject to federal jurisdiction, 18 U.S.C. § 5032 comes into play. While it may be argued that an adjudication of status is a proceeding which is jurisdictionally distinct from the potential criminal proceeding, the intermediate hearing process created by the Act does not alter the underlying basis for federal jurisdiction at the onset. The charged acts must be proved to be violative of the federal laws in order to support either an adjudication as a delinquent, or a conviction as an adult in the event of transfer.

Section 5032 as amended in 1974 removed the decision to proceed with juvenile or adult trial from the sole discretion of the U. S. Attorney. Now, in order to initiate what may result in a criminal prosecution against a juvenile, the government must first proceed by information (and certification) followed by motion to transfer. Thus juveniles over 16 who are charged with serious offenses may be criminally prosecuted through trial as adults, absent consent, only after the motion to transfer, plus findings made by the district court employing the statutory criteria. Such a motion puts at issue the question of how the juvenile should be treated “in the interest of justice.”

The motion is indeed an intermediary step when viewed in the perspective of a final resolution of the matter, but upon its filing it becomes the essential preliminary step in any criminal prosecution of the juvenile. Absent a motion to transfer, the proceeding will never ripen into a criminal prosecution but will remain a delinquency proceeding. After the filing of the motion, the criminal proceeding will thereafter terminate should the district court deny the transfer as that being in the “interest of justice.” U. S. v. Rombom, 421 F.Supp. 1295, 1298-99 (S.D.N.Y.1976). Thus the proceeding held upon hearing a motion to transfer is such a “preliminary hearing in a criminal case” that the traditional rules of evidence for the conduct of trial do not apply. Fed.R.Evid. 1101(d)(3).

Of course, the juvenile must nonetheless be guaranteed a hearing in which he is “accorded all due process rights.” Senate Report on P.L. 93-415, Code Cong. & Admin.News (1974) at 5320. Thus while the evidence received need not be measured by the standards of admissibility in a criminal trial, it must “measure up to the essentials of due process and fair treatment,” since that hearing is a “ ‘critically important’ action determining vitally important statutory rights of the juvenile.” Kent v. United States, 383 U.S. 541, 554, 556, 86 S.Ct. 1045, 1055 (1966).

While the Supreme Court has ruled upon the due process rights of juveniles in a series of cases, the Kent ease remains particularly relevant to the matter now before me. That case concerned a 16 year old youth charged with serious crimes under the laws of the District of Columbia. At issue was the propriety of the juvenile court’s waiver of jurisdiction. There, as in this case, the scrutinized hearing was prior to any adjudication of delinquency. The Court emphasized that the decision to retain jurisdiction or to remand requires “procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement . . . 383 U.S. at 553, 86 S.Ct. at 1053.

Moreover, the Court in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), declined to require criminal trial-like due process standards even in the adjudicative phase of a juvenile proceeding- — a stage not yet reached in this matter:

The arguments [advanced by the juvenile for jury trial] necessarily equate the juvenile proceeding — or at least the adjudicative phase of it — with the criminal trial. Whether they should be so equated is our issue. Concern about the inapplicability of exclusionary and other rules of evidence, about the juvenile court judge’s possible awareness of the juvenile’s prior record and of the contents of the social file; about repeated appearances of the same familiar witnesses in the persons of juvenile and probation officers and social workers — all to the effect that this will create a likelihood of pre-judgment— chooses to ignore it seems to us, every aspect of fairness, of concern, of sympathy, and of paternal attention that the juvenile court system contemplates. 403 U.S. at 550, 91 S.Ct. at 1989.

These principles, usually reserved for the treatment of juveniles, were foremost in the contemplation of the framers of the Juvenile Justice Act. The legislative history confirms the rehabilitative purposes of that Act. These principles thus guide me to apply a most liberal standard of admissibility of evidence in this matter, using as precedent the considerations which govern evidence in other preliminary hearings. Fed.R.Evid. 1101(d)(3). Thus, counsel’s objections were overruled.

III. STANDARD FOR GOVERNING TRANSFERS: “THE INTEREST OF JUSTICE”

The very legislative history which answers the question concerning the standard of evidence to employ through its emphasis upon the concern and solicitude for rehabilitation raises yet another question.

My statutory duty in this matter is to authorize a transfer if I find it to be in the “interest of justice.” § 5032. Also, I am required to make findings based upon evidence of E.K.’s milieu, past behavior, rehabilitative potential, and the availability of facilities realistically calculated to fulfill his individual needs for treatment. These unique facts must apparently form the basis for my conclusion whether a transfer would be in the more general “interest of justice,” or not.

Congress, in passing the Juvenile Justice Act, consistently placed its emphasis upon the individual’s needs. The Senate Report discusses the criteria for rehabilitation enumerated by the statute.

If a juvenile is proceeded against in Federal court, he or she shall be proceeded against as a juvenile unless he or she requests, with advice of counsel, to be treated as an adult, or unless he or she is over sixteen years old, is allegedly to have committed a felony, and after a hearing upon motion of the Attorney General at which the juvenile is accorded all due process rights, is found by the court to have no reasonable prospects for rehabilitation before his or her twenty-first birthday. (Emphasis added.) 1974 Code Cong. & Admin.News, p. 5320.

Paternal attention towards a person may conflict with society’s interest in invoking sanctions so as to not depreciate the seriousness with which it views that person’s antisocial — even seriously harmful — conduct. Concentration on rehabilitation of an individual requires a focus quite apart from that necessary in order to mete out punishment calculated to deter others from engaging in the same conduct.

In short, “rehabilitation” on one hand, and society’s overall interest in justice on the other, are to some extent competing theories. As Justice White observed in McKeiver, supra,

The criminal law proceeds on the theory that defendants have a will and are responsible for their actions. A finding of guilt establishes that they have chosen to engage in conduct so reprehensible and injurious to others that they must be punished to deter them and others from crime. Guilty defendants are considered blameworthy; they are branded and treated as such, however much the State also pursues rehabilitative ends in the criminal justice system.

For the most part, the juvenile justice system rests on more deterministic assumptions. Reprehensible acts by juveniles are not deemed the consequence of mature and malevolent choice but of environmental pressures (or lack of them) or of other forces beyond their control. Hence the state legislative judgment not to stigmatize the juvenile delinquent by branding him a criminal; his conduct is not deemed so blameworthy that punishment is required to deter him or others. Coercive measures, where employed, are considered neither retribution nor punishment. Supervision or confinement is aimed at rehabilitation, not at convincing the juvenile of his error simply by imposing pains and penalties. Nor is the purpose to make the juvenile delinquent an object lesson for others, whatever his own merits or demerits may be. 403 U.S. at 551-52, 91 S.Ct. at 1989.

This dichotomy does not exist in theory only. These competing philosophies must be applied in the real world. The dichotomy is underscored by the structure of the FJDA itself. Federally accused young people over 18 years of age are presumptively and conclusively adults in the eyes of the law. Similarly accused persons less than 16 years old are presumptively and conclusively children, absent, perhaps their consent. (Note 6.) As a youngster approaches 18, and is charged with a felony offense, the presumption of juvenile status may be put to close scrutiny. These factors (upon motion for a transfer hearing) trigger an inquiry into the extent which the societal interest in justice would require the application of penal sanctions if the acts were proven to have occurred.

Thus, for the purpose of weighing the “interest of justice” in the disposition of this case, I am compelled to consider how that interest would be served if the individual were adjudicated or found guilty as charged and committed or sentenced accordingly. Similarly, I must take the nature and seriousness of the offense into account in determining the rehabilitative potential of the individual. The criteria also require some inquiry into the availability of adequate places and programs to “treat” the juvenile should he indeed be adjudicated delinquent on the basis of the same underlying acts. The statute and legislative history force contemplation of what in all likelihood will be the consequence for the individual of the transfer decision.

The rehabilitative philosophy which underpins the FJDA is thus tempered by a realistic outcome-oriented analysis when the presumption of juvenile status is challenged in the transfer hearing process. This orientation guides the application of the criteria to a particular case, for, of course, it is unlikely that one can find a distinct demarcation between “juvenile” and “adult” which will fully satisfy the competing interests in every case. Psychologists, psychiatrists, youth counselors and all parents can well recognize how arbitrary such a distinction based on age will be in many, perhaps most, cases. New of us over the age of 18 can recall gaining any significantly greater measure of wisdom, insight or skill on the day after our 18th birthday which we did not already possess in the very days before that birthday. Nevertheless, the balance must be struck somewhere and somehow between providing a rehabilitative environment for young offenders as well as protecting society from violent and dangerous individuals and providing sanctions for anti-social acts. And that balance must be struck by the district court in the context of a transfer hearing.

In so seeking the balance, I find a single criterion emerging as paramount, namely, where the “interest of justice” is sufficiently strong so as to warrant transfer of an older juvenile accused of a serious crime. This would be the result when it appears that there is no further utility to be served in continued application of the juvenile justice rehabilitative system. For example, the transfer inquiry may reveal that the youth is unavailing of help or that places or programs for treatment for his particular condition are simply unavailable. In these latter cases, continued exercise of juvenile jurisdiction may well be a futile gesture. Empty exercises do not serve the interest of justice. Nor should society risk danger to itself where a continued, escalating pattern of violence shows that the risk is too great to be borne. However, since the presumption is that an offender of a certain age is a juvenile, the facts ought to clearly convince one on the side of these conclusions in order to warrant transfer.

A finding that rehabilitation is not possible because of the absence of a specialized juvenile facility does not brand an individual a “hard-core criminal.” Labels do not materially assist this analysis. Rather, such a finding specifically required by the FJDA when treatment is unavailable bespeaks the underlying logic that juvenile system treatment is not to be employed in the instance of a person over 16 years of age who has committed a serious offense when it is manifest that such treatment has no chance of success. At such a point the balance indeed tips to the interest of society in employing the criminal justice system.

It is incumbent upon the court to deny a motion to transfer where, all things considered, the juvenile has a realistic chance of rehabilitative potential in available treatment facilities during the period of his minority. Denial of a motion to transfer does not require a finding that the transfer would not serve the interest of justice. Denial simply means that the existence of corrigible personality factors mandates continued treatment of the offender as a juvenile. Where realistic chance for rehabilitation exists, the balance ought not to tip in recognition of the general societal interests subsumed in the broader sense of the word “justice.” However, where no realistic chance for rehabilitation exists, we have the clearest case where the balance does indeed tip in favor of bringing the philosophy of the criminal justice system into play. In such a case, when for whatever reasons the balance tips decisively, it