UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-4959
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT DEWAYNE BILBO,
Defendant-Appellant.
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No. 93-5271
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUVENILE-MALE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(April 13, 1994)
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant makes this interlocutory appeal challenging the
district court's order transferring the action from juvenile court
to one in which he will be prosecuted as an adult. We affirm the
district court.
I.
A.
In case number 93-4959, the Government filed a three-count
sealed information against Robert Bilbo charging that: (1) on
February 3, 1993, he possessed more than five grams of cocaine base
(crack) with the intent to distribute it; (2) on March 17, 1993, he
possessed more than five grams of crack with the intent to
distribute it; and (3) on April 23, 1993, he possessed more than
fifty grams of crack with the intent to distribute it. According
to an affidavit supplied by Howard Jake Smith, a Sergeant with the
State of Texas Department of Public Safety, Narcotics Division,
Bilbo made three drug sales to undercover agents. The first and
second sales listed in the information involved 22 grams of crack,
while the third sale was for 62 grams.
The Government moved to transfer Bilbo for prosecution as an
adult, whereupon the district court referred the case to a
magistrate judge for a hearing. Following an evidentiary hearing
pursuant to 18 U.S.C. § 5032, the magistrate judge issued proposed
findings on five of six elements required to support transfer. The
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magistrate judge found that Bilbo's age1 indicated transfer was
appropriate. Bilbo's social background, which included a troubled
family life with no substantial parental influence or guidance,
could be considered neutral or favoring transfer. The nature of
the alleged offenses--serious drug crimes--also supported transfer.
The magistrate judge further found that Bilbo's extensive prior
delinquency record2 and the nature of past treatment efforts and
Bilbo's response to those efforts favored transfer. Finally, the
magistrate judge determined that Bilbo's present intellectual
development and psychological maturity were a neutral factor.
However, the magistrate judge recommended denying the motion
to transfer because the Government failed to present any evidence
on the availability of federal juvenile treatment programs, a sixth
factor that must be considered under § 5032 in determining whether
a transfer would be proper. The Government objected to the
magistrate judge's recommendation. The district court held an
evidentiary hearing on the availability of federal juvenile
treatment programs. The court determined the evidence at the
supplemental hearing established that better treatment
1
Bilbo was born on July 31, 1975, and was at least 17 1/2
at the time of the offenses.
2
Bilbo's first contact with the juvenile system occurred in
August 1990, when he was arrested on charges of assault and of
being a runaway. In May 1991, Bilbo was arrested on charges of
aggravated assault. In October 1991, Bilbo was arrested on
charges of disorderly conduct. In December 1991, Bilbo was
arrested for driving offenses and possession of crack. Finally,
in July 1992, a juvenile court adjudicated Bilbo delinquent and
placed him on one year of probation based on charges of evading
arrest and delivery of between 28 and 400 grams of cocaine.
3
opportunities are available for juveniles in the adult Bureau of
Prisons (BOP) programs, and the court adopted the magistrate
judge's proposed findings on the first five factors. Accordingly,
the court granted the Government's motion, finding five of the six
factors listed in § 5032 favored transfer.
B.
In case number 93-5271, the Government filed a sealed
information alleging that on May 19, 1993, Bilbo possessed more
than 90 grams of crack and 280 grams of cocaine powder with the
intent to distribute and carried a firearm during and in relation
to that drug trafficking offense. According to an affidavit from
Sergeant Smith, Bilbo agreed to sell 94 grams of crack and 280
grams of cocaine powder to an undercover agent for $14,000.
Officers discovered that Bilbo's companion, Tony Tolliver,
possessed a firearm during the transaction. Tolliver reportedly
told the officers that Bilbo gave him the firearm for protection
during the transaction.
The Government again moved to transfer Bilbo for prosecution
as an adult. Following a hearing, the magistrate judge recommended
granting the Government's motion. The magistrate judge adopted the
district court's findings from case number 93-4959 on five of the
six statutory factors. Regarding the nature of the alleged
offenses, the second factor, the magistrate judge found that the
seriousness of the two offenses supported transfer. The district
court adopted the magistrate judge's recommendation over Bilbo's
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objection to the sufficiency of the evidence on the availability of
federal juvenile programs.
Bilbo obtained a stay of prosecution in both cases pending
appeal and this Court granted his motion to consolidate the
appeals. The parties have briefed the question whether the
district court's transfer order is appealable before trial. Bilbo
argues that the district court abused its discretion by
transferring him because there had been no prior attempts at
rehabilitating him in the juvenile system. Bilbo further contends
that the district court committed reversible error in case number
93-4959 by considering the May 19, 1993, offense for which he had
not yet been charged, in determining whether the nature of the
"alleged offense" supported transfer.
II.
A.
This Court has not previously addressed whether a transfer
order is immediately appealable, though in United States v. Doe,
871 F.2d 1248, 1250 (5th Cir. 1989), the Court considered the
merits of a pretrial appeal from such an order. Every Circuit that
has considered the issue has held that transfer orders are
appealable under the collateral order exception to the final
judgment rule. See, e.g., United States v. Gerald N., 900 F.2d
189, 189-90 (9th Cir. 1990); In Re Sealed Case, 893 F.2d 363, 366-
68 (D.C. Cir. 1990); United States v. A.W.J., 804 F.2d 492, 492-93
(8th Cir. 1986); United States v. C.G., 736 F.2d 1474, 1476-77
(11th Cir. 1984).
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The collateral order exception permits appeal of an
interlocutory order if the district court's ruling conclusively
determines the disputed question, resolves an important issue that
is completely separate from the merits, and cannot effectively be
reviewed on appeal from a final judgment. Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949). The transfer order
easily satisfies the first two requirements--it conclusively
determines that Bilbo will be tried as an adult and it does not
affect the merits of the criminal case. See C.G., 736 F.2d at
1476. The third prong of the test requires a showing that the
legal and practical value of the asserted right would be destroyed
if it were not vindicated before trial. See Midland Asphalt Corp.
v. U.S., 489 U.S. 794, 799 (1989).
Other courts have concluded that the legal and practical value
of the right to be tried as a juvenile would be destroyed without
the concomitant right of immediate appeal of a transfer order. See
Gerald N., 900 F.2d at 190-91; In Re Sealed Case, 893 F.2d at 366-
68; A.W.J., 804 F.2d at 493; C.G., 736 F.2d at 1476-77. These
courts note that the "sealing of records and the withholding of
name and picture from news media are examples of rights granted to
juveniles by 18 U.S.C. § 5038 . . . that would be `irretrievably
lost unless the juvenile is permitted to appeal the district
court's order before conviction' as an adult." Gerald N., 900 F.2d
at 190 (quoting C.G., 736 F.2d at 1477). "In addition, if
convicted and sentenced to prison, [the juvenile] would face the
distinct possibility of incarceration in an adult penal institution
6
during the pendency of his appeal, since under the Bail Reform Act
of 1984 it is no easy matter to obtain bail pending appeal."
A.W.J., 804 F.2d at 493. For these reasons, we will hear this
appeal prior to trial.
B.
Appellant argues that the district court abused its discretion
by transferring him because there had been no prior attempts at
rehabilitating him in the juvenile system. "The decision whether
to transfer a juvenile to trial as an adult under 18 U.S.C. § 5032
is within the sound discretion of the trial court, provided the
court employs and makes findings as to the six criteria outlined in
the Code." Doe, 871 F.2d at 1255. The guiding principle in
transfer proceedings is whether a transfer would be in the
interests of justice. Id. at 1252 (quotations omitted). The
statute mandates that the district court consider the following
factors in reaching its decision:
the age and social background of the juvenile; the nature
of the alleged offense; the extent and nature of the
juvenile's prior delinquency record; the juvenile's
present intellectual development and psychological
maturity; the nature of past treatment efforts and the
juvenile's response to such efforts; [and] the
availability of programs designed to treat the juvenile's
behavioral problems.
18 U.S.C. § 5032.
The district court made findings on each of these factors in
number 93-4959. Bilbo attacks the court's finding on the fifth
factor--the nature of past treatment efforts and the juvenile's
response to such efforts. Concerning this factor, the district
court found:
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[T]he juvenile was adjudicated to have engaged in
delinquent conduct with regard to two charges on July 28,
1992 and was placed on probation. Although ordered to
report to his probation officer twice per month, Bilbo
reported only once at the outset of his probationary
period. Furthermore, the present offense occurred while
on probation.
Bilbo has failed to cooperate with authorities when
previously placed in a supervised situation. His
resistance to counseling efforts and defiance of
authority may be considered in determining whether
juvenile or adult proceedings are appropriate. . . .
Bilbo's poor response to previous treatment efforts
(probation) weighs in favor of transfer.
The testimony of Eric Rhodes, an Orange County juvenile
probation officer who supervised Bilbo, supports these findings.
Rhodes testified that Bilbo did not respond to probation at all.
Bilbo only reported to the probation office once, on August 28,
1992. He was supposed to report twice per month. Rhodes attempted
to contact Bilbo by calling his grandmother and his school, but was
unable to reach him. The school informed Rhodes that it had
withdrawn Bilbo from school. Rhodes next heard that Bilbo had been
arrested on weapons charges in March 1993. At that time Rhodes's
office decided to drop Bilbo from probation because charges were
pending in adult court and Bilbo was no longer a juvenile under
Texas law. Rhodes testified that, in his opinion, Bilbo should be
treated as an adult.
Bilbo correctly observes that the main purpose of the Juvenile
Justice and Delinquency Act, 18 U.S.C. §§ 5031-42, is to "remove
juveniles from the ordinary criminal process in order to avoid the
stigma of a prior criminal conviction and to encourage treatment
and rehabilitation." United States v. Brian N., 900 F.2d 218, 220
(10th Cir. 1990). Bilbo asserts that there has never been a
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meaningful attempt at rehabilitating him. As support, he points to
Rhodes's testimony that, in connection with Bilbo's adjudication of
delinquency, he recommended that Bilbo be committed to the Texas
Youth Commission.3 Bilbo therefore argues that the district court
had no basis for concluding that he could not be rehabilitated.
Bilbo's argument misapprehends the nature of the transfer
proceeding and ignores his response to probation. "[W]hile
rehabilitation is a priority, the courts are not required to apply
the juvenile justice system to a juvenile's diagnosed intellectual
or behavioral problems when it would likely prove to be nothing
more than a futile gesture." Doe, 871 F.2d at 1253. Bilbo's
performance on probation demonstrates that his potential for
rehabilitation in the juvenile system is poor. See United States
v. G.T.W., 992 F.2d 198, 199-200 (8th Cir. 1993) (juvenile's
failure to follow court orders following earlier truancy
proceedings indicates poor prospects for rehabilitation); In re J.
Anthony G., 690 F. Supp. 760, 764, 766 (S.D. Ind. 1988) (juvenile's
inability to comply with conditions of release indicated need for
structured treatment and favored transfer).
The district court also noted that Bilbo had a troubled family
life with no significant parental involvement. His maternal
grandparents raised him and have been unable to control his
behavior. The court concluded that this evidence indicated the
3
The juvenile court record contradicts this testimony. In a
document prepared for the court's use in the proceeding, Rhodes
recommended one year of court-ordered probation. Juv. Rec. tab
B.
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familial support necessary for Bilbo to avoid future criminal
activity is lacking and limited the likelihood of successful
rehabilitation. The court also observed that Bilbo's extensive
delinquency record revealed a pattern of criminal conduct, making
his prospects for rehabilitation poor. Accordingly, the district
court fully considered Bilbo's prospects for rehabilitation and
concluded that they were remote. The record supports this
conclusion.
C.
Bilbo next contends that in case number 93-4959, the district
court erred by considering as part of the "nature of the alleged
offense," the charge that he distributed 90 grams of crack and 280
grams of cocaine powder to undercover officers on May 19, 1993.
Relying on In Re Sealed Case, 893 F.2d 363 (D.C. Cir. 1990), Bilbo
argues that, in transfer proceedings, the district court may
consider only charged criminal acts under the rubric of "the nature
of the alleged offense." 18 U.S.C. § 5032. In In Re Sealed Case,
the court held: "The plain language of the phrase, the text
surrounding it and principles of due process make clear that
Congress did not intend § 5032's 'the nature of the alleged
offense' category to encompass evidence of other uncharged crimes."
893 F.2d at 368.
The Government correctly points out that it introduced
testimony regarding the May 19, 1993, incident without any
objection from Bilbo. "If there is no contemporaneous objection to
testimony whose admissibility is contested on appeal, the 'plain
10
error' standard of review applies." United States v. Garcia, 995
F.2d 556, 561 (5th Cir. 1993). In order to constitute plain error,
the error must have been so fundamental as to have resulted in a
miscarriage of justice. Id. Any error the district court may have
committed in considering evidence of the May 19 incident does not
rise to the level of plain error for two reasons.
First, there is ample evidence to support the district court's
decision to transfer Bilbo without considering the May 19 incident.
The district court found that five of the six statutory factors
supported transfer and the other factor was neutral. This was not
a close case. Moreover, unlike In re Sealed Case, the district
court here did not assign added weight to the uncharged conduct.
See 893 F.2d at 365. The court considered the May 19 incident as
only one part of the nature of the alleged offense factor.
Further, the other three instances of distribution which had been
charged in number 93-4959 involved large amounts of crack (22, 22,
and 62 grams), though not as much as the May 19 incident (over 90
grams of crack and 280 grams of powder), and revealed a continuous
course of criminal conduct over a period of time. These
characteristics, which existed independent of the May 19 incident,
led the district court to conclude that the nature of the alleged
offense factor weighed in favor of transfer. Accordingly, even
without considering the May 19 incident, the district court would
have determined that this factor supported transfer and would have
transferred Bilbo. Cf. In re Sealed Case, 893 F.2d at 369 n.13
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(court not convinced district court would have transferred juvenile
absent evidence of uncharged crime).
Second, in number 93-5271, the Government charged Bilbo with
two crimes arising from the May 19 incident. The district court
considered all four instances of distribution in connection with
the transfer proceeding in that case. Thus, as the Government
points out, Bilbo is, essentially, in the same position he would
have been in had the Government charged all four distribution
crimes in the first information. Therefore, the district court did
not err in its determination of "the nature of the alleged
offense."
III.
The district court's transfer order is AFFIRMED.
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