United States v. 2012-09-28 | 11-10115 | USA V. HOS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 11-10115
Plaintiff-Appellee, D.C. No.
v. 1:04-cr-05171-  AWI-3HOS,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
August 6, 2012—San Francisco, California
Filed September 28, 2012
Before: Alex Kozinski, Chief Judge and
Consuelo M. Callahan, Circuit Judge, and
Edward R. Korman, Senior District Judge.*
Opinion by Judge Korman
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
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COUNSEL
Benjamin B. Wagner, United States Attorney, and Karen A.
Escobar, Assistant United States Attorney, Fresno, California,
for the plaintiff-appellee.
Edgar Eugene Page, Page & Page Attorneys at Law, Sacra-
mento, California, for the defendant-appellant.
OPINION
KORMAN, District Judge:
HOS was arrested and indicted for various offenses. He
claimed that he was a juvenile when these offenses were com-
mitted. After taking evidence on this issue, the district judge
held that HOS was a juvenile. This finding precluded the U.S.
Attorney from proceeding against HOS as an adult, as a mat-
ter of right. It did not, however, preclude a proceeding against
HOS as an adult if the district court could be persuaded that
such a proceeding was in the interest of justice.
The day before the district judge made his finding that HOS
was a juvenile, the U.S. Attorney filed a juvenile delinquency
information and an application seeking permission of the dis-
trict court to transfer the proceedings against HOS to an adult
criminal prosecution. This application was granted, although
it was later reversed on appeal and remanded with directions
to the district court to make specific findings on the record
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with respect to all of the factors set out in 18 U.S.C. § 5032
that are relevant to the “interest of justice” determination.
United States v. Juvenile Male, 316 F. App’x 535, 536 (9th
Cir. 2008). The remand also allowed for “supplementation of
the record as necessary.” Id.
On remand, the district court did not engage in the exercise
for which the case had been remanded. Instead, it granted the
U.S. Attorney’s request to revoke its prior determination as to
HOS’s age based on a birth certificate the U.S. Attorney had
obtained from the Mexican government that indicated that
HOS was twenty-three years old at the time of the charged
offenses. The district judge thus ordered that the case proceed
against HOS as an adult. This appeal followed.
I. Jurisdiction
[1] In United States v. Gerald N., 900 F.2d 189 (9th Cir.
1990) (per curiam), we held that we had jurisdiction to enter-
tain an interlocutory appeal from an order transferring a juve-
nile for prosecution as an adult “in the interest of justice.” Id.
at 191. This was so because it came within the collateral order
exception of Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541 (1949). Gerald N., 900 F.2d at 190-91. “To fall
within the limited class of final collateral orders, an order
must (1) conclusively determine the disputed question, (2)
resolve an important issue completely separate from the mer-
its of the action, and (3) be effectively unreviewable on
appeal from a final judgment.” Id. at 190 (internal quotation
marks omitted). With respect to the first and second factors,
an order transferring a juvenile for adult prosecution conclu-
sively resolves the issue of whether he would be treated as an
adult, and that issue is completely separate from the merits of
the proceeding. As for the third factor, we held in Gerald N.
that juvenile status conferred “important rights [that] must be
vindicated before trial or are otherwise lost forever.” Id. at
191. These included the benefit of sealed proceedings and
avoidance of incarceration in an adult penal institution. Id. at
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190-91. The same considerations are applicable to an appeal
from an order of the kind at issue here.
[2] Nevertheless, the government relies on United States v.
Gomez-Gomez, 643 F.3d 463 (6th Cir. 2011), cert. denied,
132 S. Ct. 466 (2011), to argue that we lack jurisdiction. This
argument is based on a distinction between a transfer order
“in the interest of justice,” which the Sixth Circuit character-
ized as involving a “legal question,” and an order finding that
the defendant is subject to prosecution as an adult because he
was over the age of eighteen when the offense was commit-
ted, which the court characterized as “a factual question.” Id.
at 470. Such factual determinations, the Sixth Circuit rea-
soned, are the kinds of issues “that trial judges, not appellate
judges, confront almost daily.” Id. (quoting Johnson v. Jones,
515 U.S. 304, 316 (1995)). Thus, “interlocutory appeals are
less likely to bring important error-correcting benefits here
than where purely legal matters are at issue.” Id. (quoting
Johnson, 515 U.S. at 316). Moreover, “[r]esolving such a fac-
tual controversy may require reviewing an extensive pretrial
record and lead to greater delay than resolving a purely legal
issue.” Id.
[3] We are not persuaded by the government’s argument.
While it is true that the issue of the defendant’s age is a fac-
tual one, that very issue may also arise in the context of deter-
mining the so-called legal question of whether the case should
be transferred “in the interest of justice.” Indeed, that factor
and almost all of the other factors that must be taken into con-
sideration in an “interest of justice” determination involve
factual issues and potential factual disputes. See 18 U.S.C.
§ 5032 (listing the juvenile’s age and social background as the
first of six relevant factors). Thus, in Gerald N., which
involved an “interest of justice” determination, the district
court made a specific finding that the juvenile “was seventeen
years and ten months of age at the time the offense was
alleged to have been committed,” and we reviewed the record
and determined that this finding, and each of the district
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judge’s other findings, were “fully supported either by the
witness’s testimony or by exhibits properly admitted into evi-
dence.” 900 F.2d at 191. We, therefore, decline to draw the
distinction on which the holding in Gomez-Gomez turned.
II. The Merits
[4] We reject HOS’s argument that the government was
precluded from re-litigating the issue of his age. The transfer
order appealed from was entered in the same criminal pro-
ceeding as the initial order. A final judgment has not been
entered on the issue of whether HOS was guilty of the charges
filed against him. Indeed, even the initial determination of
HOS’s age failed to finally resolve the issue of whether he
could be treated as an adult, because the U.S. Attorney was
free to seek a transfer for adult prosecution in the interest of
justice. The district judge, therefore, had the discretion to
reconsider his earlier ruling, even if it constituted the law of
the case. United States v. Smith, 389 F.3d 944, 949 (9th Cir.
2004) (per curiam) (“A judge may reexamine his earlier rul-
ing . . . if he has a conviction at once strong and reasonable
that the earlier ruling was wrong, and if rescinding it would
not cause undue harm to the party that had benefitted from it.”
(alteration in original) (quoting Avitia v. Metro. Club of Chi-
cago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995))).
[5] On the basis of the record before us, we cannot con-
clude that the district judge abused his discretion here or that
his finding of fact that HOS was an adult was clearly errone-
ous. The evidence on which the district judge relied included
admissions that HOS himself had made on almost half a
dozen occasions when he was stopped by Immigration and
Customs Enforcement and border patrol officers in addition to
the official birth certificate that the U.S. Attorney acquired
from Mexico, pursuant to the Mutual Legal Assistance Treaty.
Nor are we persuaded that the defendant was prejudiced by
the alleged delay in obtaining the official birth certificate.
Indeed, the U.S. Attorney stipulated that HOS’s parents, who
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allegedly could not be located, would testify that HOS was a
juvenile at the time of the charged offenses.
We, therefore, affirm the order of the district court.
AFFIRMED.
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