United States v. Cheryl Dawn James

464 F.2d 1228 UNITED STATES of America, Plaintiff-Appellee, v. Cheryl Dawn JAMES, Defendant-Appellant. No. 71-1919. United States Court of Appeals, Ninth Circuit. July 26, 1972. Nick Chaivoe (argued), of Peterson, Chaivoe & Peterson, Portland, Or., for appellant. Tommy Hawk, Asst. U. S. Atty. (argued), D. Richard Hammersley, Asst. U. S. Atty., Portland, Or. for appellee. Before HUFSTEDLER and CHOY, Circuit Judges, and SCHNACKE, District Judge. * SCHNACKE, District Judge: Appellant, following proceedings conducted under the Federal Juvenile Delinquency Act (the FJDA), 18 U.S.C. Sec. 5033 , was adjudged to be a juvenile delinquent by virtue of two violations of 18 U.S.C. Sec. 111 , consisting of assaults upon agents of the Federal Bureau of Investigation. We affirm. At the time of the offense, appellant was seventeen years of age and thus eligible for trial and sentence under the FJDA. It is undisputed that appellant was fully informed of her right to prosecution by indictment, to trial thereupon by jury, and of the consequences of her consent to proceedings under the FJDA. Thus informed, she expressly waived such rights and consented to the FJDA proceeding. It is now contended…

(dissenting) :

I dissent because I am convinced that the jury waiver provisions of the Federal Juvenile Delinquency Act are unconstitutional.

At the time of the offense Cheryl was 17 years old, and she was given the choice between trial as an adult or trial as a juvenile under the Federal Juvenile Delinquency Act (“FJDA”, 18 U.S.C. §§ 5031-37 ). However, by the terms of FJDA ( 18 U.S.C. §§ 5032 1 and 5033 2 ) *1231 she could not exercise her choice in favor of FJDA unless she consented to be tried as a juvenile under the Act and thus waived trial by jury. Cheryl, represented by counsel, signed the requisite consent and waiver. The district court found that she was a juvenile delinquent and ordered her committed to custody for 18 months. 3 This appeal followed.

The majority opinion’s reliance upon McKeiver v. Pennsylvania (1971) 403 U.S. 528 , 91 S.Ct. 1976 , 29 L.Ed.2d 647 is misplaced for two reasons: (1) Mc-Keiver did not purport to hold or even to hint that the Sixth Amendment does not guaranty a right to trial by jury to juveniles who are tried in federal courts for federal offenses, and (2) McKeiver does not touch the constitutionality of FJDA’s statutory scheme to induce…

Appellant, following proceedings conducted under the Federal Juvenile Delinquency Act (the FJDA), 18 U.S.C. § 5033 , was adjudged to be a juvenile delinquent by virtue of two violations of 18 U.S.C. § 111 , consisting of assaults upon agents of the Federal Bureau of Investigation. We affirm.

At the time of the offense, appellant was seventeen years of age and thus eligible for trial and sentence under the FJDA. It is undisputed that appellant was fully informed of her right to prosecution by indictment, to trial thereupon by jury, and of the consequences of her consent to proceedings under the FJDA. Thus informed, she expressly waived such rights and consented to the FJDA proceeding.

It is now contended that the waiver specified in the FJDA is ineffective and the FJDA unconstitutionally denies a juvenile the right to a jury trial guaranteed by the Sixth Amendment.

Appellant relies upon Nieves v. United States, 280 F.Supp. 994 (S.D.N.Y., 1968) which rested heavily upon the then recently decided In re Gault, 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967), and even charges trial counsel with incompetence for not advising appellant that, under Nieves , she could demand a jury…