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GOVERNMENT VIRGIN ISLANDS A.M. (04/18/94)

argued: April 18, 1994.

GOVERNMENT OF THE VIRGIN ISLANDS IN THE INTEREST OF: A.M., A MINOR, A.M., A MINOR, APPELLANT


ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS Division of St. Thomas and St.John. (D.C. Criminal No. 92-00071).

Before: Stapleton, Alito, and Weis, Circuit Judges.

Author: Alito

Opinion OF THE COURT

ALITO, Circuit Judge :

This appeal concerns an order transferring a juvenile for prosecution as an adult. We hold that such a transfer order is subject to pretrial appeal under the collateral order doctrine, and we reject the juvenile's argument that the transferring court committed various procedural errors, including the admission of hearsay in violation of due process and Virgin Islands law. We therefore affirm the decision of the Appellate Division of the District Court, which sustained the transfer.

I.

In November 1991, a juvenile delinquency complaint was filed against A.M., who was then 16 years old. The complaint alleged that, on the previous day, A.M. had engaged in conduct that, if committed by an adult, would have constituted the felonies of first-degree rape, first-degree unlawful sexual contact, first-degree assault, conspiracy, and kidnapping for rape. In early December 1991, the Government of the Virgin Islands filed a motion requesting that A.M. be transferred for prosecution as an adult. After a hearing in May 1992, the Family Division of the Territorial Court issued an order granting that motion. In October 1992, the Appellate Division of the District Court affirmed that order, and A.M. then took this appeal to our court.

II.

Before addressing A.M.'s arguments, we will first explain why we have jurisdiction to entertain his appeal. Under 28 U.S.C. § 1291*fn1 and 48 U.S.C. § 1613a(c),*fn2 we have jurisdiction over all "final decisions" of the District Court of the Virgin Islands, including "all final decisions of the district court on appeal from the courts established by local law," 48 U.S.C. § 1613a (c). Although the Appellate Division order from which this appeal was taken is not a "final order" in the ordinary sense, four other courts of appeals have held that district court orders transferring juveniles for prosecution as adults under the federal transfer statute, 18 U.S.C. § 5023, fall within the collateral order doctrine and are therefore appealable before trial. In re Sealed Case, 282 U.S. App. D.C. 156, 893 F.2d 363 (D.C. Cir. 1990); United States v. Smith, 851 F.2d 706 (4th Cir. 1988), cert. denied, 112 S. Ct. 414 (1991); United States v. A.W.J., 804 F.2d 492 (8th Cir. 1986); United States v. C.G., 736 F.2d 1474 (11th Cir. 1984). Cf. Guam v. Kingsbury, 649 F.2d 740 (9th Cir. 1981), cert. denied, 454 U.S. 895, 70 L. Ed. 2d 210, 102 S. Ct. 392 (1981) (holding, based on different reasoning, that transfer order under Guam statute is subject to pretrial appeal). These four courts of appeals have reasoned that such orders represent the district court's final decision on the transfer question, that this question is separate from the merits of the prosecution, and that the denial of appellate review until after the juvenile has been tried as an adult would cause the irreparable loss of some of the statutory protections offered to juvenile offenders, such as protection from disclosure of court records. For essentially the reasons explained in these decisions, we are persuaded that the Appellate Division's order in this case falls within the collateral order doctrine and is thus appealable.

We likewise hold that the Appellate Division of the District Court had jurisdiction to hear A.M.'s appeal from the decision of the Family Division of the Territorial Court. Under 48 U.S.C. § 1613a(a), the District Court currently has "such appellate jurisdiction over the courts of the Virgin Islands established by local law," and V.I. Code Ann. Tit. 5, § 2508(d) specifically provides that a juvenile transfer order of the Family Division is a "final appealable order." Moreover, the general appellate jurisdiction of the District Court extends at least to review of "final" decisions of the Territorial Court,*fn3 and the Territorial Court's transfer order in this case was, as previously discussed, "final" within the meaning of the collateral order doctrine.

While we thus hold that transfer orders such as the one at issue in this case are subject to two levels of appellate review, we must express our concern about the potential for delay that such appeals may produce. In the future, we believe that appeals of transfer orders should be treated much like appeals of detention orders. See 18 U.S.C. § 3145(c). The parties should alert the Appellate Division and our court to the nature of the appeal and request expedited Disposition. The parties should then be required to comply with short briefing deadlines; extensions should be granted only in extreme situations; and such cases should be given priority on the docket.

III.

Turning to the merits of this appeal, we first address A.M.'s argument that the Family Division Judge did not properly consider the likelihood of his rehabilitation if he was found to have committed the alleged offenses. Under the transfer provision applicable here, V.I. Code Ann. tit. 5, § 2508(a), the Family Division "may" transfer a juvenile for adult prosecution if the juvenile was at least 16 years old at the time of the alleged offense, and the alleged offense would constitute a felony if committed by an adult. While this provision commits the transfer decision to the sound discretion of the Family Division,*fn4 another provision, V.I. Code Ann. tit. 5, § 2509(d), provides that evidence of seven specified factors "shall be considered in determining transfer." These factors are:

(1) the seriousness of the alleged offense to the community and whether the protection of the community requires waiver;

(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

(3) whether the alleged offense was against property, greater weight being given to offenses against persons, especially if personal injury resulted;

(4) whether there is probable cause to believe that the offense charged has been committed and that the child has committed it;

(5) the sophistication and maturity of the child as determined by consideration of his home, emotional attitude and pattern of living;

(6) the record and previous history of the juvenile, including previous contacts with the Youth Services Administration, law enforcement agencies and courts, and prior periods of probation ...


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