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UNITED STATES v. GRAVES

May 13, 1975

The UNITED STATES
v.
Bennie GRAVES


Scalera, District Judge.


The opinion of the court was delivered by: SCALERA

Defendant Bennie Graves was indicted for violations of 18 U.S.C. § 922(a)(6) *fn1" and 18 U.S.C. Appendix § 1202(a)(1). *fn2" Count One charges that defendant made a false and fictitious statement to a firearms dealer, to wit that he had not been convicted of a crime punishable by more than one year's imprisonment. Count Two charges that defendant, after being convicted of auto larceny in the Court of Common Pleas of Allegheny County, Pennsylvania, received and possessed a F.I.E. 12-gauge shotgun that had been transported in interstate commerce. Defendant waived his right to a jury trial and the case was tried before the court. This opinion constitutes findings of fact and conclusions of law in compliance with Rule 23(c) of the Federal Rules of Criminal Procedure.

 Defendant's counsel and the government stipulated to the following: On April 15, 1971, defendant was convicted in the Court of Common Pleas of Allegheny County of larceny of an automobile, *fn3" a crime punishable by a term exceeding one year. On January 19, 1973, defendant, in connection with the acquisition of a firearm from Braverman Arms Company, 912 Penn Avenue, Wilkinsburg, Pennsylvania, a licensed dealer in firearms, certified in writing to said dealer that he had not been convicted of a crime punishable by a term of imprisonment exceeding one year. Defendant in fact knew that he had been convicted on April 15, 1971 of auto larceny. On January 19, 1973, defendant knowingly received a 12-gauge shotgun. The gun was manufactured outside of Pennsylvania and transported into the state "sometime within two years prior to January 19, 1973."

 The government submits that defendant has admitted every element of the crime and should be found guilty. Defendant, while admitting the stipulated facts, disagrees with the government over the inferences to be drawn from those facts.

 At trial, defendant orally moved for judgment of acquittal. The motion is based on the same arguments defendant made in support of his motion to dismiss the indictment, which this court denied. In presenting the motion, defendant rested on the brief he offered in support of his motion to dismiss the indictment. In contesting the motion, the government relied on the three-page brief it filed in opposition to the motion to dismiss the indictment.

 I

 When he was arrested for the auto larceny set forth in the indictment, defendant was 17 years, 7 months old. *fn4" Defendant stipulated to the subsequent larceny conviction. He now challenges the certification process that preceded his trial. He argues that at his certification hearing he was denied certain constitutional rights set forth by the Supreme Court in Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), and further delineated in United States ex rel. Turner v. Rundle, 438 F.2d 839 (3d Cir. 1971). Because the certification was constitutionally invalid, defendant argues, the auto larceny conviction cannot support a conviction under the indictment in this case.

 A

 Defendant was arrested for auto larceny in 1971. At that time, Pennsylvania law provided that any youth under 18 who violated a state law was subject to the exclusive jurisdiction of the juvenile court, *fn5" and that the youth could be "certified" for trial in criminal court if the interests of the state so required. *fn6" Defendant was so certified.

 In Kent, supra, the Supreme Court said that the transfer of a youth from the juvenile court to the adult criminal court is a crucial step in the adjudication of the juvenile's rights. The juvenile court has wide discretion in determining whether such a transfer should be ordered but it cannot, the Court said, order the transfer arbitrarily. There must be certain procedural safeguards to meet the requirements of due process.

 The Third Circuit has held that the safeguards discussed in Kent were constitutionally mandated. Turner, supra. The court specified what was required in a certification proceeding. The juvenile must have due notice of the charges against him. He must have access to his social records. At the certification hearing, he must be afforded the chance to cross-examine and to present evidence. Finally he must be provided with an adequate statement of reasons explaining the judge's decision. *fn7"

 B

 On October 12, 1970, defendant was arrested on an auto larceny charge. One month later a certification hearing was held. *fn8" At the hearing, the arresting officer testified to the details of defendant's apprehension. The officer said that when he spotted the stolen car, defendant was trying to start it. When he failed to get it started, defendant got out of the car, walked to a nearby gas station, then returned to the car. At this time, the officer and his partner approached the vehicle. Defendant got out of the car and started to run. After a two-block chase, he was arrested by the officers.

 After the arresting officer completed his testimony, he was questioned by defendant's counsel. The owner of the stolen car then testified as ...


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