DANIEL DONOVAN

Senior Assistant Federal Defender

Federal Defenders of Montana

P. O. Box 3547

Great Falls, Montana 59403

(406) 727-5328

Counsel for Defendant xxxxxxxxx

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

xxxxxxxxxxx, the above-named Defendant, by and through his counsel of record, DANIEL DONOVAN and the FEDERAL DEFENDERS OF MONTANA, moves this Court to dismiss the Information filed against him for the reason that the Certification filed in support of said Information is improper and invalid. As can be seen from the Exhibits filed in support of this Motion, contrary to the Certification, Defendant xxxxxxxxx is subject to the jurisdiction of the Youth Court of the Montana Thirteenth Judicial District Court, Yellowstone County. See, generally, the Montana Youth Court Act, Chapter 5 of Title 41, Montana Code Annotated. Further, because Defendant xxxxxxxxx shall be treated as a "delinquent youth" by the State of Montana Youth Court, there is no substantial Federal interest in this case or in the offense to warrant the exercise of federal jurisdiction.

The Juvenile Justice and Delinquency Act, 18 U.S.C. § 5031 et seq. (West Supp. 1998), forms the framework for the analysis here. Section 5032 provides that the United States Attorney General may proceed against a juvenile in federal court if she, or her delegate, certifies to the district court "that (1) the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, (2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged is a crime of violence that is a felony ... and that there is a substantial federal interest in the case or the offense to warrant the exercise of Federal jurisdiction." 18 U.S.C. § 5032.

This certification is not to be taken lightly. The statutory proviso is reinforced by the strong language of the Justice Department's United States Attorneys' Manual § 9-8.110, which states that each United States Attorney has the authority to make the certification to Federal court. The manual specifies the nature of the investigation to be undertaken prior to proceeding with certification. It further states that "since it is possible that a successful attack on the certification may be based on the U.S. Attorney's abuse of discretion in this area, the criteria . . . should be adhered to as closely as possible."

In her Certification filed in this case, the United States Attorney for the District of Montana sets forth the following four grounds in support of Certification:

(1) The State of Montana does not have jurisdiction over the juvenile alleged to have committed the act of juvenile delinquency in that the events giving rise to the information occurred on and within the exterior boundaries of the Fort Belknap Indian Reservation;

(2) The tribal court does not have available programs or services adequate for the needs of the juvenile;

(3) This case involves a felony crime of violence, that is, assault resulting in serious bodily injury;

(4) There is a substantial federal interest in the case and the offense to warrant federal jurisdiction.

Defendant xxxxxxxxx challenges grounds 1, 2 and 4. First, while the state of Montana does not have jurisdiction over Defendant xxxxxxxxx for the assault alleged in this Information, the State of Montana does have jurisdiction over Defendant xxxxxxxxx. See Exhibits "A", "B" and "C". Second, reference to the tribal court is improper and, furthermore, the State of Montana does, in fact, have available programs or services adequate for the needs of Defendant xxxxxxxxx. Third, primarily because Defendant xxxxxxxxx is subject to the jurisdiction and supervision of the Youth Court of the State of Montana, there is no substantial Federal interest in this case or the offense to warrant Federal jurisdiction.

Certification is a jurisdictional requirement. United States v. Doe, 98 F.3d 459, 460 (9th Cir. 1996); United States v. Doe, 13 F.3d 302, 304 (9th Cir. 1993); and United States v. Baker, 10 F.3d 1374, 1396 (9th Cir. 1993), cert. denied., 513 U.S. 934 (1994). ⁽¹⁾ In other words, a certification is necessary to confer Federal jurisdiction. United States v. Juvenile Male, 923 F.2d 614, 617 (8th Cir. 1991). Because failure to comply with § 5032 is a jurisdictional defect, if certification of the defendant is fundamentally inadequate, the case must be dismissed. Doe, 98 F.3d at 461; Doe, 13 F.3d at 305; Juvenile Male, 923 F.2d at 620; United States v. Male Juvenile, 148 F.3d 468, 472 (5th Cir. 1998) (Where certification was improper, "the district court therefore lacked jurisdiction over the case."); United States v. Juvenile, 599 F.Supp. 1126, 1132 (D.C. Or. 1984); and United States v. Male Juvenile, 844 F.Supp. 280, 285 (E.D.Va. 1994).

The certification requirements in 18 U.S.C. § 5032 were added to the juvenile delinquency statute in 1974. See, Pub. L. No. 93-415, 88 Stat. 1109 (1974). The "substantial federal interest" language was included in a 1994 amendment. As stated in United States v. Juvenile Male, 864 F.2d 641, 644 (9th Cir. 1988), Congress' purpose in enacting the certification requirement was "to help ensure that state and local authorities would deal with juvenile offenders wherever possible, keeping juveniles away from the less appropriate federal channels." See also Baker, 10 F.3d at 1396. The certification procedure encompasses the recognition of the general policy of federal abstention in juvenile cases. United States v. Juvenile Male, 844 F.Supp. at 284 (citing United States v. Sechrist, 640 F.2d 81, 84 (7th Cir. 1981)). As stated by the Oregon District Court, "it has long been recognized that the federal system is at best ill-equipped to meet the needs of juvenile offenders. Deference to the state court should always be observed except in the most severe of cases. 120 Cong.Rec. 25162 (1974)." United States v. Juvenile, 599 F.Supp. at 1130. The case at bar is certainly no where near the "most severe" of cases.

Although the statute requires the Attorney General to certify that "the state does not have available programs and services adequate for the needs of juveniles," in this case the Certification reads "the tribal court does not have available programs or services adequate for the needs of the juvenile." Consideration of the resources of the tribal court is neither relevant nor required by statute. The Eighth Circuit held in United States v. Allen, 574 F.2d 435, 439 (8th Cir. 1978), that " Section 5032 does not require the filing of a certification as to the existence of tribal jurisdiction and the adequacy of tribal facilities before federal jurisdiction can be invoked." The ruling of the Eighth Circuit was adopted and approved by the Ninth Circuit in United States v. Juvenile Male, 864 F.2d at 645. Although the tribal court does not have available programs or services adequate for the needs of Defendant xxxxxxxxx, the same cannot be said for the State of Montana system. Indeed, as Exhibits "A" and "E" demonstrate, the State of Montana does have adequate resources, and the State of Montana is attending to the needs of Defendant xxxxxxxxx at this very moment. The Federal system in Montana is ill-equipped to deal with juvenile offenders. Unlike the State system, which has many alternative placement opportunities and treatment programs, this Court would probably have no alternative but to place Defendant xxxxxxxxx in the long-term juvenile detention facility at Dickinson, North Dakota where Defendant xxxxxxxxx would be a lamb among wolves.

As stated above, in 1984, Congress added the "substantial federal interest" certification requirement into § 5032. See Pub.L. No. 98-473, 98 Stat. 1837 (1984). The District Court of the Eastern District of Virginia ruled that accepting the Attorney General's certification of a "substantial federal interest" without review would open the doors to federal court whenever there was concurrent jurisdiction. United States v. Male Juvenile, 844 F.Supp. at 284. The legislative history behind this 1984 amendment gives guidance as to what sort of crimes Congress considers serious enough for the invocation of Federal jurisdiction:

The Committee has limited the provision to serious violent felonies and drug offenses so that the Federal government will continue to defer to state authorities for less serious juvenile offenses. Moreover, the Committee intends that a determination that there is a "substantial Federal Interest" be based on a finding that the nature of the offense or the circumstances of the case give rise to special Federal concerns. Examples of such cases could include an assault on, or assassination of, a Federal official, an aircraft highjacking, a kidnapping where state boundaries are crossed, a major espionage or sabotage offense, participation in large-scale drug trafficking, or significant or willful destruction of property belonging to the United States.

S.Rep. No. 225, 98th Cong., 2nd Sess. 389, reprinted in 1984 U.S.Code Cong. & Admin. News, 3182, 3529. Assault Resulting in Serious Bodily Injury, either generically or specifically confined to the facts of this case, does not come anywhere close to the level of seriousness as cited forth in the examples from the Senate Judiciary Committee. There are certainly no special Federal concerns in this case, particularly where Defendant xxxxxxxxx's assaultive behavior is being addressed by the Montana State Youth Court System. In a similar situation, the District Court for the Eastern District of Virginia found that "since the Government's interest in an ordinary bank robbery, absent some allegation of a special Federal concern, per se does not rise to the level of a substantial federal interest, this Court does not believe that the certification is in compliance with Section 5032." 884 F.Supp. at 284. (Emphasis by the Court).

In United States v. Juvenile Male #1, 86 F.3d 1314, 1321 (4th Cir. 1996), the court considered various factors, including the legislative history of the underlying statute [carjacking] and the nature of the crime, to discern whether there was a substantial federal interest involved. The Fourth Circuit found that "a substantial federal interest [was] clearly present" for a carjacking charge against the juvenile based on Congress' decision to federalize the crime of carjacking, the harshness of the penalties, the "sense of urgency" in the Congressional debates, and because the circumstances of the crimes alleged ( carjacking and murder) were particularly "egregious." Id. The crime here, Assault Resulting in Serious Bodily Injury, does not present any similar concerns.

The delay in the Government's filing of the Information in this case demonstrates that this case is not very serious or important from the Government's point of view. Although this offense allegedly occurred on October 3, 1997, the Information was not filed until over a year later, on October 9, 1998. If the Government felt that this case was important, i.e., that it amounted to a case of "substantial Federal interest," the Government most certainly could have, and would have, filed the charges in October of 1997. A delay in filing charges is a factor that this Court can take into consideration. See United States v. Male Juvenile, 844 F.Supp. at 283. For effective criminal justice, the three necessary principles of punishment are celerity, severity, and certainty. "Symposium, the Sentencing Controversy: Punishment and Policy in the War Against Drugs", 40 Villanova Law Review 383, 387 (1995); "Megatrends in Criminal Justice Theory", 13 American Journal of Criminal Law, 157, 178 (Winter 1986). These principles are particularly critical in a juvenile setting where early intervention and rehabilitation are so important. With the delay here, Defendant xxxxxxxxx has actually been off the Reservation for some time. Unfortunately, his assaultive behavior has not subsided. However, he is now under the jurisdiction of the Youth Court of the State of Montana. He has admitted to his juvenile acts and has thus been deemed, under Montana law, a "delinquent youth." See, Mont.Code. Ann. §41-5-101. The Montana State Youth Court will impose proper punishment, including supervision and rehabilitation, on December 14, 1998. See Mont.Code. Ann. §§ 41-5-1511 and 41-5-1513. There is thus no need to proceed in Federal Court.

In sum, Federal courts are courts of limited jurisdiction. While Congress has expanded Federal crimes in the adult area, jurisdiction over juvenile matters remains limited by § 5032. We have a boy here who has been adjudicated a delinquent youth by the State of Montana. The Montana Youth Court will impose its disposition prior to the trial in this matter. There is simply no "substantial Federal interest" in this case. The Certification is deficient. This Court must dismiss.

DATED this 3rd day of December, 1998.

WALLACE JOHN xxxxxxxxx

By:____________________________

DANIEL DONOVAN

Senior Assistant Federal Defender

Federal Defenders of Montana

P. O. Box 3547 Great Falls, MT 59401

Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on December 3, 1998, a copy of the foregoing was served, either by mail or personal delivery, on:

CHAMBERS OF HON. DONALD W. MOLLOY

United States District Judge

Attn.: Patrick Duffy

201 East Broadway

Missoula, MT 59802

LORI A. HARPER

Assistant U.S. Attorney

P.O. Box 3447

Great Falls, MT 59403

Counsel for the United States

PAUL McLEAN

United States Probation Officer

P. O. Box 7057

Billings, MT 59103

BRIAN FARREN

Pretrial Services Assistant

P. O. Box 1366

Great Falls, MT 59403

KRISTINA GUEST

Yellowstone County Deputy Public Defender

2708 1st Avenue North, #400

Billings, MT 59101

WALLACE JOHN xxxxxxxxx

841 North 17th, Apartment #3

Billings, MT 59101

Counsel for Defendant

_________________________________________

FEDERAL DEFENDERS OF MONTANA

1. United States v. Gonzalez-Cervantes, 668 F.2d 1073 (1981) appears to be contrary. In Gonzalez-Cervantes, the Court stated that "it is our view that the filing of an accurate certification is not jurisdictional." Id. at 1077. Not only is Gonzalez-Cervantes contrary to the weight of authority, it is distinguishable on its facts. There, not only did defense counsel fail to object to the invalid certification, she agreed that it was "appropriate." Id. at 1077-1078. The Court found that "any objection to the error in the certification should have been made to the district judge at the earliest opportunity." Id. Thus, the Court simply did not want to give the defendant a "free pass" based on a jurisdictional defect, although, in most instances, lack of jurisdiction may be raised at any time.