United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 4, 1997 Decided December 19, 1997
No. 97-3025
In re: Sealed Case
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00452-01)
Shawn Moore argued the cause and filed the brief for
appellant.
Barbara J. Valliere, Assistant United States Attorney,
argued the cause for appellee, with whom Eric H. Holder, Jr.,
United States Attorney at the time the brief was filed, John
R. Fisher and Michael D. Brittin, Assistant United States
Attorneys, were on the brief.
Before: Sentelle, Randolph and Garland, Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Opinion concurring in part and dissenting in part filed by
Circuit Judge Randolph.
Sentelle, Circuit Judge: This is an interlocutory appeal
by a juvenile defendant from an order of the district court
denying his motion to dismiss for lack of jurisdiction, and
directing his transfer for prosecution as an adult. After
examining the basis for the U.S. Attorney's certification of a
"substantial federal interest" under the Juvenile Justice and
Delinquency Prevention Act of 1974, 18 U.S.C. s 5032 p 1, the
district court upheld the certification, finding that charges for
murder of a United States Postal Service mail carrier did in
fact implicate such an interest. Holding also that the defen-
dant's prior adjudication for carnal knowledge of a female
child under sixteen years of age constituted a conviction for a
"crime of violence," the court ordered his transfer for adult
prosecution under s 5032 p 4. Because we hold that a prose-
cutor's certification of a "substantial federal interest" under
18 U.S.C. s 5032 p 1 is not subject to judicial review, and
because the defendant's prior adjudications involved crimes
implicating a "substantial risk of violence" under s 5032 p 4,
we affirm the district court's transfer order.
I
A nine-count information, charging the defendant with,
inter alia, murder of a United States Postal Service mail
carrier under 18 U.S.C. ss 1111, 1114, alleged the following
facts. The defendant, approximately four months before his
eighteenth birthday, conspired with two others to commit
armed robbery. During the afternoon of June 11, 1996, they
observed a pedestrian walk up to a Postal Service truck to
speak to the mail carrier, who was sitting inside eating lunch.
Armed with a .38 caliber revolver, the defendant approached
from the back of the mail truck, pointed the pistol at the mail
carrier and the pedestrian, and told them to get down and
give him their money. The pedestrian complied, but the
driver was impeded by a chain from his belt linking him to
the keys in the truck's ignition. When the defendant grabbed
the driver and began to pull him from the truck, a nearby
citizen yelled out, and the defendant without warning stepped
back, aimed the gun at the driver and shot him in the head,
then fled on foot from the scene. The mail carrier died six
days later.
II
The Juvenile Justice and Delinquency Prevention Act of
1974, 18 U.S.C. ss 5031 et seq. (the "Act"), states that a
juvenile
shall not be proceeded against in any court of the United
States unless the Attorney General, after investigation,
certifies to the appropriate district court of the United
States that ... (3) the offense charged is a crime of
violence that is a felony ... and that there is a substan-
tial Federal interest in the case or the offense to warrant
the exercise of Federal jurisdiction.
18 U.S.C. s 5032. Pursuant to this statute, the United States
Attorney (under authority of the Attorney General, 28 C.F.R.
s 0.57) filed a Certification stating that the charges included
a felony crime of violence and that the government's need to
protect its employees and to ensure delivery of the mail
constituted a "substantial federal interest" warranting the
exercise of federal jurisdiction. The defendant moved to
dismiss the information on the grounds that the federal court
did not have jurisdiction, and that his prior record did not
justify his transfer for adult prosecution. The district court
ruled that the form of the certification was proper. It further
undertook to examine the basis for the government's decision,
and found that the allegations in the information indeed
established a substantial federal interest. While the defen-
dant argues that the district court erred in finding a substan-
tial federal interest in this case, the government vigorously
contests the district court's ruling that it "has the authority to
analyze 'more than the mere form of the government's certifi-
cation' to determine whether a substantial federal interest
exists." United States v. A.W., No. 96-0452, 1997 WL
118408, at *2 (D.D.C. Feb. 20, 1997) (quoting United States v.
Juvenile Male No. 1, 86 F.3d 1314, 1318 (4th Cir. 1996)).
A
Before considering the reviewability of a U.S. Attorney's
certification of a substantial federal interest, we must address
a preliminary question, raised by the panel at oral argument:
whether the ruling of the district court on the validity of
certification is itself properly before this court. We have
squarely held that the decision to transfer a juvenile for adult
prosecution is a "collateral order" qualifying as a final deci-
sion subject to interlocutory appeal under 28 U.S.C. s 1291.
In re Sealed Case, 893 F.2d 363, 366 (D.C. Cir. 1990).
Therefore, the interlocutory appeal is proper; but does this
subject to our review only that issue, or should we also
consider the question of certification? Normally, interlocu-
tory appeal is very restricted in criminal cases, and certifica-
tion would not appear to be subject to interlocutory review on
its own. See, e.g., United States v. Brizendine, 659 F.2d 215
(D.C. Cir. 1981) (denying jurisdiction over interlocutory ap-
peal on grounds related to plea bargaining process). Howev-
er, not only is the question of certification inextricably related
to the transfer order, which is properly before this court, but
federal subject-matter jurisdiction depends upon certification
in accordance with 18 U.S.C. s 5032. See, e.g., Impounded,
120 F.3d 457, 460 (3d Cir. 1997) ("The courts of appeals that
have considered this issue are in near unanimous agreement
that the record certification requirement is a jurisdictional
prerequisite in a transfer proceeding."). Because this court
has the duty to inquire into our own jurisdiction, we hold that
we must address the reviewability of certification when it is
antecedent to another issue properly before us on interlocu-
tory appeal.
Our partially dissenting colleague objects to our consider-
ing this threshold issue. However, the law requires a court
to examine its own subject-matter jurisdiction in criminal
cases as well as civil cases. "Subject-matter jurisdiction
presents a threshold question in any federal prosecution."
United States v. Baucum, 80 F.3d 539, 540 (D.C. Cir.) (per
curiam), cert. denied, 117 S. Ct. 204 (1996). Otherwise put, in
the criminal arena as in the civil, federal courts, being "courts
of limited jurisdiction have only the power to hear those cases
over which Congress has conferred subject-matter jurisdic-
tion upon them." Id. Because of this basic principle, before
we can legitimately decide any question, whether on interloc-
utory or final appeal, we, like all federal courts, "are under an
independent obligation to examine [our] own jurisdiction...."
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). If
we are without subject-matter jurisdiction over the case
ostensibly before us, then any pronouncement on any issue,
even though that issue would itself be otherwise appealable,
becomes a violation of our Article III limitations. There is no
"distinction between civil and criminal cases" in this regard.
Baucum, supra, is but one of many criminal cases examining
subject-matter jurisdiction.
Our colleague's comparison of the certification with an
indictment is not apt. It is not the case that "[i]ndictments
are the functional equivalent of s 5032 certifications," simply
because "both invoke the authority of the district court...."
Dissent at 5. We do not suggest that s 5032 certification is
jurisdictional because it invokes the authority, but rather
because the statutory scheme makes it essential to the exis-
tence of that authority, as we explain hereafter. The indict-
ment, like the complaint in a civil case, simply begins the
application of an existing realm of subject-matter jurisdiction
to the facts and parties of a specific case. In most criminal
cases, that jurisdiction arises under 18 U.S.C. s 3231, though
in the case of a transferred juvenile, it arises under chapter
403 of Title 18, s 5031 et seq. The "functional equivalent" of
the indictment in the case of a transferred juvenile is not the
certification but the criminal information. The criminal infor-
mation in this case displays on its face the jurisdictional basis:
"(filed pursuant to 18 U.S.C. s 5031, et seq.)." 1 There are
subject-matter thresholds to be crossed on the criminal side
as on the civil. If the certification question is such a jurisdic-
tional threshold, then we must determine if we have crossed
it before we can address the interlocutory question lurking
behind it. The certification is such a threshold.
__________
1 We agree with our colleague that the various other potential
defects and affirmative defenses he discusses are not necessarily
jurisdictional. Dissent at 5. We do not agree that they are in any
way parallel to the certification in this case.
Circuit courts addressing the validity of a prosecutor's
certification of substantial federal interest have uniformly
treated the certification requirement as jurisdictional. See,
e.g., Impounded, 117 F.3d 730, 733 (3d Cir. 1997); United
States v. Juvenile Male No. 1, 118 F.3d 298, 303 (5th Cir.),
cert. denied, 66 U.S.L.W. 3355 (Nov. 17, 1997). Similarly, the
circuits also have concluded that the closely related question
of certification of the record under 18 U.S.C. s 5032 is
jurisdictional. See Impounded, 120 F.3d 457, 460 (3d Cir.
1997); United States v. Wong, 40 F.3d 1347, 1369-70 (2d Cir.
1994), cert. denied, 116 S. Ct. 190 (1995); United States v.
Parker, 956 F.2d 169, 170 (8th Cir. 1992); United States v.
Brian N., 900 F.2d 218, 222-23 (10th Cir. 1990). The Sixth
Circuit, in United States v. Chambers, 944 F.2d 1253 (6th Cir.
1991), cert. denied, 502 U.S. 1112 (1992), presented a straight-
forward and convincing analysis demonstrating the jurisdic-
tional nature of the certification requirement under s 5032.
As that circuit noted, under the Federal Juvenile Delinquency
Act, Congress "revoked the district courts' preexisting, large-
ly unrestricted subject-matter jurisdiction over criminal pros-
ecutions against juveniles," by declaring that acts otherwise
criminal, when committed by juveniles, become generally
noncriminal and merely constitute the entry into a state of
"juvenile delinquency." Id. at 1258. Thus, a juvenile who
has committed what otherwise "would have been a crime if
committed by an adult," 18 U.S.C. s 5031 (emphasis added),
has not committed a criminal offense against the United
States and is therefore not within the criminal jurisdiction of
the federal courts. Then, as the Sixth Circuit went on to
note, Congress "partially restored" the jurisdiction it had
taken away from the courts by conferring authority to pro-
ceed against juveniles alleged to have committed "acts that
would be federal crimes if committed by adults," id. at 1259,
when, but only when, the certification requirement is met.
Therefore, the Sixth Circuit reasoned cogently, this certifica-
tion must be a jurisdictional requirement. As it does go to
the subject-matter jurisdiction of the court, we must answer
that question before we can legitimately opine on anything
else.2
After the federal district court has acquired jurisdiction
under s 5032, the prosecution may proceed against the juve-
nile within that jurisdiction in two fashions. First, he may be
proceeded against in a juvenile delinquency proceeding under
chapter 403 of Title 18. This is specified in 18 U.S.C. s 5032,
which states that "[a] juvenile who is alleged to have commit-
ted an act of juvenile delinquency and who is not surrendered
to State authorities shall be proceeded against under this
chapter unless he has requested in writing upon advice of
counsel to be proceeded against as an adult...." Or, if he
has after his fifteenth birthday committed an act which meets
the transfer requirements of s 5032, which we construe later
in this opinion, he may be prosecuted as if he were in fact an
adult. That he has the option under s 5032 of electing the
adult proceeding does not, as the dissent suggests, establish
that the certification procedure is not jurisdictional, nor does
it amount to a decision by the parties to confer subject-matter
jurisdiction. That option in the fourth paragraph of s 5032
only comes into effect in the case of "[a] juvenile ... who is
__________
2 This answers our dissenting colleague's contention that the
federal courts have jurisdiction, without certification, over the acts
of juvenile delinquency under 18 U.S.C. s 3231 "which confers upon
those courts 'original jurisdiction ... of all offenses against the
United States.' " Dissent at 4. As the Chambers opinion demon-
strates, under s 5031, an act of delinquency is one which "would
have been a crime" had it not been for the juvenile status of the
perpetrator. Therefore, the federal court loses jurisdiction under
s 3231 and does not regain it unless it is conferred pursuant to
s 5032. Our colleague's further suggestion that Chambers, con-
trary to its express language, does not support the conclusion that
the s 5032 certification is necessary to subject-matter jurisdiction is
also wide of the mark. The portion of the opinion to which he
refers, 944 F.2d at 1260, concerns the time of the filing of the
certificate, not its necessity. Indeed, the Chambers court expressly
states that it is not "endorsing the government's regrettable tardi-
ness in tendering the delayed certification, a jurisdictional prereq-
uisite." 944 F.2d at 1260 (emphasis added). In that case, as in
this, the jurisdictional prerequisite was present in time for testing
on appeal.
not surrendered to State authorities." Under the second
paragraph of 18 U.S.C. s 5032, a juvenile subject to such
allegations "shall be surrendered" whenever "the Attorney
General does not so certify." The phrase "so certify" refers
to the certification under s 5032 p 1. That paragraph estab-
lishes the very certification we are holding jurisdictional.
The juvenile's consent does not confer jurisdiction. It merely
establishes whether the district court, which has already
obtained jurisdiction via the certification, will then exercise
that jurisdiction in a juvenile proceeding or in a transfer
proceeding resulting in prosecution as an adult.
Our colleague asserts that he can find "[n]o significant
difference" between this case and several others where courts
denied interlocutory review of alleged jurisdictional defects.
But none of the cases he cites present the situation posed
here, where a legitimate question involving Article III
subject-matter jurisdiction necessarily precedes another issue
(transfer for adult prosecution) which we are required to
review on an interlocutory basis. In United States v. Poin-
dexter, 859 F.2d 216 (D.C. Cir. 1988), we held allegations of
grand jury taint not subject to interlocutory review, but the
case presented no proper interlocutory question, nor did the
grand jury issue contest federal subject-matter jurisdiction.
Similarly, United States v. Levy, 947 F.2d 1032 (2d Cir. 1991),
and United States v. Sorren, 605 F.2d 1211 (1st Cir. 1979),
both denied interlocutory review over questions of personal
jurisdiction, and no proper interlocutory issue was presented.
Again, United States v. Layton, 645 F.2d 681 (9th Cir.), cert.
denied, 452 U.S. 972 (1981), held only that a purported
challenge to subject-matter jurisdiction (a claim that a statute
did not apply to acts outside the United States) did not,
standing alone, justify interlocutory review. Abney v. United
States, 431 U.S. 651 (1977), is not to the contrary. In that
case, the Court held that although a pretrial order denying a
motion to dismiss an indictment on double jeopardy grounds
was a "collateral order" subject to interlocutory appeal, a
denial of a challenge to the sufficiency of the same indictment
was not. Id. at 663. But although our dissenting colleague
rhetorically refers to such a challenge as one involving a
court's "federal judicial power," a challenge to the sufficiency
of an indictment is not a challenge to the jurisdiction of the
court. Contrary to the dissent's suggestion, we do not con-
sider the certification question here based on some theory of
discretionary "pendent appellate jurisdiction." We consider
that question because it is a jurisdictional prerequisite to
considering another question which this circuit has held we
must consider on an interlocutory basis.
B
The duty to address the validity of certification does not
decide the issue of our authority to look behind the U.S.
Attorney's decision. Although the Fourth Circuit claims to
have identified a circuit split on the reviewability of a prose-
cutor's certification, Juvenile Male No. 1, 86 F.3d at 1317-18,
a closer examination of the precedents reveals that only the
Fourth Circuit itself has allowed judicial inquiry into the basis
upon which a "substantial federal interest" certification has
been made.
In rejecting judicial review of the substantive decision
underlying certification under 18 U.S.C. s 5032, three circuits
have noted that the section "does not explicitly provide for
judicial review of a certification, nor does it provide articula-
ble standards" that a court can use to evaluate the exercise of
the prosecutor's discretion. Impounded, 117 F.3d 730, 733
(3d Cir. 1997) (extensively discussing the precedents). The
structure of s 5032 supports this argument: this section
expressly provides for judicial review of orders transferring a
juvenile for adult prosecution and outlines standards for
courts to apply, yet it is silent regarding review of certifica-
tion. See Judge Wilkinson's concurring opinion in Juvenile
Male No. 1, 86 F.3d at 1324. On similar reasoning, most
courts have held unreviewable the bases of certification,
including whether there exists an "appropriate" state court
with jurisdiction over the juvenile, United States v. Vancier,
515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857 (1975);
United States v. C.G., 736 F.2d 1474 (11th Cir. 1984); and
whether the case in fact implicates a "substantial federal
interest," Impounded, 117 F.3d at 735-36; United States v.
Juvenile No. 1, 118 F.3d 298 (5th Cir. 1997); United States v.
I.D.P., 102 F.3d 507 (11th Cir. 1996), cert. denied, 118 S. Ct.
305 (1997).
Other than the Fourth Circuit, those circuits that have
reviewed certification at all have only tested the facial ade-
quacy of the certification against the facial requirements of
s 5032. See United States v. Doe, 49 F.3d 859 (2d Cir. 1995)
(allowing review of whether the juvenile was charged with a
crime of violence or one specifically enumerated in s 5032);
United States v. Juvenile Male, 923 F.2d 614 (8th Cir. 1991)
(same); United States v. Gonzalez-Cervantes, 668 F.2d 1073
(9th Cir. 1981) (reviewing whether the certification was timely
filed by an authorized person and stated the appropriate
statutory factors). Courts have also suggested that it might
be appropriate to conduct a closer examination to resolve
allegations of bad faith, see, e.g., United States v. C.G., 736
F.2d at 1478, but there are no such allegations in this case.
In holding certification subject to judicial scrutiny, the
Fourth Circuit first relied on a recent decision of the Su-
preme Court under the Westfall Act that included the lan-
guage, " 'executive determinations generally are subject to
judicial review.' " Juvenile Male No. 1, 86 F.3d at 1319
(quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417,
434 (1995)). Under the Westfall Act, 28 U.S.C. s 2679, the
Attorney General defends civil actions brought against em-
ployees of the United States and, under appropriate circum-
stances, certifies "that the defendant employee was acting
within the scope of his office or employment at the time of the
incident out of which the claim arose." 28 U.S.C.
s 2679(d)(1). Upon such certification, the United States is
substituted for the employee as the defendant in the action
and the case proceeds under the Federal Tort Claims Act, 28
U.S.C. ss 2671 et seq. ("FTCA"). If the Attorney General
refuses to so certify, an employee can seek review, alleging
wrongful failure to certify under s 2679(d)(3). Gutierrez de
Martinez, 515 U.S. at 428. In most cases, plaintiffs have no
complaint about the substitution of the "financially reliable"
United States for an individual defendant. Id. at 427. How-
ever, when the recharacterized case falls within an exception
to the waiver of sovereign immunity under the FTCA (such
as for claims "arising in a foreign country," 28 U.S.C.
s 2680(k)), certification entirely disposes of the plaintiff's
claims. That is, the substitution of the United States has
ended the civil action against the individual employee, but the
exception to the FTCA shields liability of the United States,
leaving the plaintiff without remedy.
In the Gutierrez de Martinez case, a federal employee
contended that the Attorney General's decision to certify an
action under the Westfall Act was unreviewable. The Su-
preme Court disagreed, and held a certification subject to
judicial review. In reaching this conclusion, the Court first
noted that in the class of cases represented by the one before
it (that is, in which the United States, if substituted, would be
immune), certification is tantamount to a final judgment
against the plaintiff. With that finality as a backdrop, the
court went on to consider the complex of incentives weighing
on the U.S. Attorney making "the impetus to certify ...
overwhelming." Id. at 427. Shortly put, if the U.S. Attorney
refuses to certify, the federal employee is left exposed, the
plaintiff does not have available the deep pocket of the United
States, but the immunity of the United States is still subject
to assault by review of the refusal to certify under
s 2679(d)(3). On the other hand, if the U.S. Attorney does
certify, the employee is immune, the United States has any
immunities unwaived under exceptions to the Federal Tort
Claims Act, and, prior to Gutierrez de Martinez, the decision
was unreviewable. The Supreme Court denied that immuni-
ty, recalling that "[n]o man is allowed to be a judge in his own
cause." 515 U.S. at 428 (quoting The Federalist No. 10, at 79
(J. Madison) (C. Rossiter ed., 1961)). Also, the Court noted
that the statutory predecessor to the Westfall Act expressly
provided for judicial review of scope of employment determi-
nations; therefore, Congress "legislated against a backdrop
of judicial review," and most likely intended to continue to
allow judicial scrutiny of the "executive determination" that
an employee was acting within the scope of his employment.
Id. at 425.
This brings us to the most important distinction between
s 5032 certification and the "scope of employment" certifica-
tion under the Westfall Act and its predecessor statutes. In
the ordinary case, the exercise of prosecutorial discretion, at
the very core of the executive function, has long been held
presumptively unreviewable. See United States v. Arm-
strong, 116 S. Ct. 1480, 1486 (1996) (noting exception for
selective prosecution and other constitutional claims); Wayte
v. United States, 470 U.S. 598, 607 (1985) (same). We cannot
agree with the Fourth Circuit that a "presumption of reviewa-
bility" applies to s 5032 certification. See also Town of
Newton v. Rumery, 480 U.S. 386, 397 (1987) (describing the
"background of discretion" applicable to prosecutive deci-
sions). The decision to invoke the power of the federal
government and the criminal jurisdiction of federal courts
rests peculiarly within the province of the Executive. Con-
gress has created many areas of substantial overlap between
federal and state criminal law; given the limited resources
and policy objectives of the federal government, not every
violation of federal law is prosecuted in federal court. The
decision to certify that a particular case involves a "substan-
tial federal interest" implicates the core prosecutorial discre-
tion vested in the Attorney General and her delegates.
In sum, the reasoning of Gutierrez de Martinez is com-
pletely inapplicable to certification under the Juvenile Justice
and Delinquency Prevention Act. Unlike the Westfall Act's
"scope of employment" certification, s 5032 certification is not
influenced by similar incentives, nor does it conclusively
resolve the underlying case against the defendant. The
"scope of employment" determination itself is inherently dif-
ferent from the decision to commit government resources to
the prosecution of an alleged violent felon in a criminal case.
The "scope of employment" determination involves the appli-
cation of one element of the common law doctrine of respon-
deat superior, historically a question of law within the prove-
nance of courts. See, e.g., Fiocco v. Carver, 137 N.E. 309
(N.Y.1922) (Cardozo, J.). On the other hand, a "substantial
federal interest" may vary depending upon federal policy and
upon factors "such as the general incidence of crime, the need
for deterrence, enforcement priorities, and the like." Im-
pounded, 117 F.3d at 734. The Executive, not the courts of
law, is best qualified to determine such matters. See Wayte,
470 U.S. at 607 ("Such factors as the strength of the case, the
prosecution's general deterrence value, the Government's en-
forcement priorities, and the case's relationship to the Gov-
ernment's overall enforcement plan are not readily suscepti-
ble to the kind of analysis the courts are competent to
undertake.").
The Fourth Circuit also relied on an antecedent "clear
preference" in federal law for "having juvenile criminal mat-
ters handled in the state courts." Juvenile Male No. 1, 86
F.3d at 1320. Although recognizing that the more recent
amendments to s 5032 reflect that "serious crimes committed
by juveniles" are becoming "a national problem that Congress
believes is best addressed on a federal level," that court said
that "the focus of the juvenile statutes is still on rehabilitation
within the state systems," and ruled that judicial review
would further this congressional goal. Id. Essentially, the
Fourth Circuit made this "focus" into a presumption, put this
presumption on the same side of the scale as the "presump-
tion in favor of judicial review," and with only slight mention
of the prosecutive function, announced that the scales tipped
in favor of reviewability. We disagree. We can discover no
reason, either in the statutory language or in precedent, to
conclude that Congress intended judges to intervene in prose-
cutorial decisions in order to protect a "focus" on state
rehabilitation of juveniles.
The defendant, relying on United States v. Male Juvenile,
844 F. Supp. 280 (E.D. Va. 1994), argues that federal courts
should review the stated reasons underlying the government's
decision to proceed in federal court in order "to make sure
that 'the nature of the offense or [the] circumstances of the
case give rise to special Federal concerns.' " Appellant's
Brief at 6 (quoting S. Rep. No. 98-225, at 389, reprinted in
1984 U.S.C.C.A.N. 3182, 3529). In the Male Juvenile case
relied upon by appellant, the district court worried that
absent a review of the Attorney General's certification, the
government could prosecute a juvenile in federal court "when-
ever a juvenile has committed a violent felony for which there
is concurrent jurisdiction." Male Juvenile, 844 F. Supp. at
284. Actually, the government would prosecute in federal
court only when the Attorney General or her designee had
determined that the "substantial federal interest" require-
ment of s 5032 was met. With review, the government could
do so only when a court had made the same determination.
To argue that this difference compels review by judges of
the Executive decision is to assume that only judges can
discern the meaning of statutes, a view that is at odds with
our three-part constitutional structure. The Constitution re-
quires that the Executive "take Care that the Laws be
faithfully executed." U.S. Const. Art. II s 3. This duty of
fidelity requires interpretation and application of Congress's
enactments, often in situations where the limitations of Arti-
cle III (e.g., the case or controversy requirement) prevent
interpretive guidance from the courts. In prosecuting adults,
the Executive constantly faces situations in which a potential
defendant has violated both state and federal laws. The
Executive has the duty and is presumed to have the expertise
to make the decision to prosecute. Not only do we have no
reason to assume the Executive less competent to make a
similar decision, albeit with a higher threshold, with reference
to juveniles, but there is every reason to assume that this
policy-laden decision is properly entrusted to the same branch
administering at the prosecutive stage the rest of the body of
criminal law. There is nothing nugatory about congressional
efforts to provide guidance to the Executive directly via
statutory language. Not every such effort gives rise to a
justiciable question. We hold that this one does not. Thus,
we review the certification only to determine its presence and
whether it facially supports our jurisdiction. This one does,
and we can require no more.
III
Once federal jurisdiction has attached, as we hold it has,
the same section of the Act requires the mandatory transfer
for adult prosecution of
a juvenile who is alleged to have committed an act after
his sixteenth birthday which if committed by an adult
would be a felony offense that has as an element thereof
the use, attempted use, or threatened use of physical
force against the person of another, or that, by its very
nature, involves a substantial risk that physical force
against the person of another may be used in committing
the offense, ... and who has previously been found
guilty of an act which if committed by an adult would
have been one of the offenses set forth in this subsection
or an offense in violation of a State felony statute that
would have been such an offense if a circumstance giving
rise to Federal jurisdiction had existed....
18 U.S.C. s 5032. In this case, the government filed a
"Notice of Prior Conviction for Purposes of Mandatory Trans-
fer of Juvenile for Prosecution as an Adult." This Notice
documented that in 1993, the defendant pled guilty to carnal
knowledge of a child under sixteen, in violation of D.C. Code
s 22-2801, and in 1996, he pled guilty to second degree child
sexual abuse, in violation of D.C. Code s 22-4109. The
children involved were family members aged six and four,
respectively, at the time of the offenses. The district court,
ruling only on the basis of the 1993 adjudication, agreed with
the prosecutor that this crime involved "a substantial risk
that physical force against the person of another may be used
in committing the offense," and held the defendant subject to
mandatory transfer for prosecution as an adult.
The defendant argues that the court should not look be-
yond the elements of the carnal knowledge offense, and that
these elements do not include the use of force. We need not
reach the question of whether the court should look beyond
the elements of the charged offense to the charging papers or
even to the facts underlying the prior conviction, because we
hold that sexual abuse of a minor inherently involves "a
substantial risk that physical force against the person of
another may be used in committing the offense." Further,
we have held already that, in a carnal knowledge prosecution,
"when a child under the age of consent is involved the law
conclusively presumes force." United States v. Jones, 477
F.2d 1213, 1218 (D.C. Cir. 1973) (applying this presumption in
the context of the sufficiency of corroboration evidence).
Thus, the district court properly held the defendant subject to
mandatory transfer for adult prosecution under the applicable
standards of s 5032.
CONCLUSION
We hold that a federal prosecutor's s 5032 certification of a
"substantial federal interest" implicates core prosecutorial
judgment and discretion, and that therefore--absent allega-
tions of bad faith or facial inadequacy of the certificate--the
basis for such certification is not subject to judicial review.
We uphold the certification on these grounds. Because a
prior offense for sexual abuse of a minor is a crime involving
a "substantial risk" of physical force, we affirm the order
under 18 U.S.C. s 5032 transferring the defendant for adult
prosecution in this matter.
Randolph, Circuit Judge, concurring in part and dissent-
ing in part: I concur in the majority's opinion insofar as it
upholds the district court's "transfer" of the defendant for
prosecution as an adult. The balance of the opinion deals
with the appeal from the district court's order regarding the
United States Attorney's certification of a "substantial Feder-
al interest," 18 U.S.C. s 5032. I cannot join this part be-
cause, in my view, we do not have appellate jurisdiction to
decide the matter: the order is not a final decision; it does
not fall within the collateral order doctrine; we do not have
pendent jurisdiction over it; and certification is not a "juris-
dictional" prerequisite to the transfer order. I will take up
each of these points in sequence.
First, the "courts of appeals ... shall have jurisdiction of
appeals from all final decisions of the district courts," 28
U.S.C. s 1291. A "final decision" is one that "ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment." Catlin v. United States, 324 U.S.
229, 233 (1945). There is no such "final decision" here. The
case has not even gone to trial. And so to sustain appellate
jurisdiction, we must slip the appeal into an exception. This
is easy enough for the transfer order. The law of the circuit
dictates that "transfer" orders fit within the limited collateral
order exception to s 1291's final judgment rule. See In re
Sealed Case, 893 F.2d 363, 366-68 (D.C. Cir. 1990); Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949).
Certification orders cannot be squeezed through that opening,
which brings me to point two.
Appealable, final collateral orders share several character-
istics, one of which is that "denial of immediate review would
render impossible any review whatsoever," United States v.
Ryan, 402 U.S. 530, 533 (1971). In criminal cases--apart
from those dealing with the constitutional right to bail--the
collateral order exception has been invoked when an order
deprives the defendant of some "right not to be tried."
Midland Asphalt Corp. v. United States, 489 U.S. 794, 800
(1989). Transfer orders may be of that sort. District court
orders passing on the validity of the Attorney General's
certification are not. If defendants are entitled to judicial
review of such orders, the review may be had after conviction
and sentencing. The certification requirement of s 5032 no
more confers upon a defendant a "right not to be tried" than
does the Sixth Amendment's guarantee of a speedy trial, or
the due process prohibition against vindictive prosecution, or
the requirement that grand juries not be influenced by gov-
ernment violations of Rule 6(e) of the Federal Rules of
Criminal Procedure. While violation of those proscriptions
ordinarily demands dismissal of the indictment, a district
court's refusal to dismiss may not be raised in an interlocu-
tory appeal. See Midland Asphalt Corp., 489 U.S. at 798-
802; United States v. Hollywood Motor Car Co., 458 U.S. 263,
264-70 (1982); United States v. MacDonald, 435 U.S. 850,
852-61 (1978).
My colleagues acknowledge that the certification order
"would not appear to be subject to interlocutory review on its
own." Maj. op. at 4. That eminently correct observation,
shared by one other circuit (see United States v. Juvenile
Female, 869 F.2d 458, 460 (9th Cir. 1989)), should have put an
end to the appeal from that order. If not the collateral order
doctrine, what other basis is there for asserting appellate
jurisdiction? Some federal appellate courts, ours included,
have devised a doctrine of "pendent" appellate jurisdiction in
civil cases. See, e.g., Swint v. Chambers County Comm'n, 514
U.S. 35, 44-45 n.2 (1995); Jungquist v. Sheikh Sultan Bin
Khalifa Al Nahyan, 115 F.3d 1020, 1026 (D.C. Cir. 1997).
This enables a court of appeals to reach out and review
orders over which it has no independent jurisdiction. But
pendent appellate jurisdiction has no place in criminal cases,
where the final judgment rule is "at its strongest." Holly-
wood Motor Car Co., 458 U.S. at 265. The Supreme Court
could not be clearer on the point--in criminal cases, would-be
pendent claims "are appealable if, and only if, they too fall
within Cohen's collateral-order exception to the final-
judgment rule." Abney v. United States, 431 U.S. 651, 663
(1977); see also MacDonald, 435 U.S. at 857 n.6; United
States v. Rostenkowski, 59 F.3d 1291, 1301 (D.C. Cir. 1995);
United States v. Crosby, 20 F.3d 480, 487 (D.C. Cir. 1994);
Juvenile Female, 869 F.2d at 460; Note, The Proper Scope of
Pendent Appellate Jurisdiction in the Collateral Order Con-
text, 100 Yale L.J. 511, 520 (1990).
Now to point four. The majority's theory, as I understand
it, flows from a line of cases such as Mansfield, Coldwater &
Lake Michigan Railway v. Swan, 111 U.S. 379, 382 (1884),
which holds that a federal appellate court must first satisfy
itself of its jurisdiction and then must make sure that the
lower court also had jurisdiction. See, e.g., Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 & n.4 (1986).
This leads the majority to think that given our appellate
jurisdiction over the transfer order, we are obligated to
examine the district court's certification order because the
certification order was "jurisdictional." See maj. op. at 3-9.
I part company on two grounds.
First, the majority's principal authority--United States v.
Chambers, 944 F.2d 1253, 1257-61 (6th Cir. 1991)--does not
support its conclusion. To be sure, Chambers held that a
s 5032 certificate from the Attorney General was essential to
sustaining the district court's jurisdiction.1 But the Sixth
Circuit also held that the certificate did not have to be filed
before trial because it was not a prerequisite to "initiating
federal proceedings" against the juvenile offender. 944 F.2d
at 1260. (The government there did not file its certificate
until the close of its case-in-chief, id. at 1257.) Other courts
have reached the same conclusion. See, e.g., United States v.
Gonzalez-Cervantes, 668 F.2d 1073, 1077 (9th Cir. 1981);
United States v. Ramapuram, 432 F. Supp. 140, 143 (D. Md.
1977), aff'd, 577 F.2d 738 (4th Cir. 1978) (unpublished). In
short, Chambers undercuts rather than supports the majori-
ty's essential proposition--that without a valid and proper
__________
1 The majority cites two other cases--Impounded, 117 F.3d
730, 733 (3d Cir. 1997), and United States v. Juvenile Male #1, 118
F.3d 298, 303 (5th Cir. 1997)--supposedly holding that the require-
ment that a prosecutor certify a substantial federal interest was
jurisdictional. Impounded merely "assume[d] that the s 5032 certi-
fication is a prerequisite to the district court exercising jurisdiction
over the transfer hearing." 117 F.3d at 733. Juvenile Male #1
made the same assumption. 118 F.3d at 303-04.
certificate, the district court would have no jurisdiction to
review the transfer order.
My next and final ground for disagreement is this--the
Attorney General's certification is not, as the majority sup-
poses, "jurisdictional." In criminal cases, the jurisdiction of
federal district courts stems from 18 U.S.C. s 3231, which
confers upon those courts "original jurisdiction ... of all
offenses against the United States." The policy reflected in
s 5032 may be one of abstention, of permitting the federal
criminal laws to be invoked against juvenile violators only in
limited situations. See Chambers, 944 F.2d at 1258. Even
so, the text of the Federal Juvenile Delinquency Act does not
revoke the existing jurisdiction of the district courts over
juvenile violators. If that had been the idea--my colleagues
think it was--Congress used a very obscure method of ex-
pressing its desire, quite different than the clear language of
jurisdiction found in so many other jurisdiction-affecting stat-
utes. The Act, in s 5032, states that the juvenile "shall not
be proceeded against in any court of the United States unless
the Attorney General" certifies to one of the three exceptions,
the last of which mentions "substantial Federal interest."
The words "proceeded against" are not directed to the juris-
diction of the courts. Courts do not proceed against persons.
Prosecutors do. And it is prosecutors, or more accurately the
Attorney General, who are the addressees of this language.
It is therefore scarcely surprising that the majority's mis-
treatment of certification as jurisdictional poses vexing prob-
lems, problems my colleagues do not bother to answer.
There is, for instance, a provision in s 5032 allowing a
juvenile to request in writing that he not be tried as a
juvenile and that he be "proceeded against as an adult."
Such a written waiver takes the juvenile out of the Act. If we
now plug in the majority's jurisdictional theory, the conse-
quence is that juvenile defendants may confer jurisdiction on
district courts by consenting to be tried as adults. What
happened to the time-honored principle that parties cannot,
by consent, confer jurisdiction on the federal courts? Consid-
er also the majority's suggestion that certification may be
open to challenge for "bad faith." Maj. op. at 16. Is one to
suppose that jurisdiction now turns on the state of mind of
one of the litigants? I cannot understand why we should be
reaching so far, and in such an unorthodox manner, to bestow
the label "jurisdictional." The Act sets up a system for
dealing with juveniles already subject to federal jurisdiction
under 18 U.S.C. s 3231 because of their alleged "violation of a
law of the United States," 18 U.S.C. s 5031. The certification
requirement in s 5032, as the majority itself appears to
acknowledge, see maj. op. at 14, merely codifies Congress's
judgment about when the Attorney General may invoke this
jurisdiction.
It is not enough to answer that the exercise of federal
judicial power depends on a s 5032 certificate. One could say
the same about a grand jury indictment. Yet the Supreme
Court in Abney, while sustaining its appellate jurisdiction to
consider the defendant's double jeopardy claim, refused to
reach his challenge to the sufficiency of the indictment. See
431 U.S. at 663. Indictments are the functional equivalent of
s 5032 certifications; both signify that there is a significant
federal interest; both invoke the authority of the district
court to proceed; both are subject to challenge. Yet indict-
ments cannot be considered "jurisdictional" in any meaningful
sense. Simply because some condition or requirement is a
prerequisite to criminal proceedings does not make the condi-
tion or requirement jurisdictional. A case must be brought
within the period of limitations. There must be a speedy
trial. The grand jury must be properly constituted. Trial
must occur in a specified venue. Some offenses must be tried
by a jury. Defendants are entitled to counsel. None of these
are considered "jurisdictional."
We would do well to remember that calling something
"jurisdictional" will have lasting, important and perhaps unan-
ticipated effects in future cases. If the Attorney General's
certification is jurisdictional, as my colleagues hold, chal-
lenges to it may be raised initially in the middle of trial, or
right before sentencing, or on appeal, or in a petition for
rehearing, or at any other time. Also, if the certification is
jurisdictional, the juvenile defendant may not waive the re-
quirement, even I suppose by pleading guilty. Yet I see no
good reason--the majority offers none--why a defendant
should be permitted to attack a certificate for the first time
on appeal, or why a juvenile cannot waive the requirement
altogether, or why a s 5032 certificate ought to be considered
any more important than the many constitutional and statuto-
ry requirements which must be raised at trial and which can
be waived.
In short, I believe that rather than succumbing to the
temptation to resolve the issue on its merits, the majority
should have dismissed the appeal from the district court's
certification order on the authority of Abney v. United States.