United States v. D.D.B.
United States v. D.D.B.
Opinion of the Court
The government wishes to try D.D.B. as an adult for robbing a pharmacy. In order to do so, however, it must prove that he had a prior conviction for a violent offense. We must decide, therefore, whether attempted robbery under Indiana law is such an offense-a question that appears cut and dried on its face, but actually poses some challenges.
I.
D.D.B., along with an adult accomplice, robbed a pharmacy and was quickly apprehended by the police. Because he was under eighteen years of age at the time, the government charged him with committing acts of juvenile delinquency that would be crimes if committed by an adult-robbery under
Soon after, the government moved to transfer D.D.B. to adult proceedings. The statute governing such a transfer,
The government originally alleged that D.D.B. had two prior juvenile delinquency adjudications that would serve as predicates for the mandatory transfer under § 5032. The first was attempted robbery in Indiana, a Class B felony. The second was burglary, also a Class B felony in Indiana. In a supplemental motion the government added a third predicate offense, conspiracy to commit robbery. The district court addressed only the attempted robbery offense in its opinion and concluded that this offense satisfied the grounds for mandatory transfer under § 5032 -that is, that it was a crime of violence. R. 144 at 9. Because this finding on the attempted robbery offense was sufficient grounds for the mandatory transfer under
The district court held that it is indeed a crime of violence. Generally, this court reviews a district court's transfer decision under § 5032 for an abuse of discretion. United States v. Woods ,
A. Was the appeal timely filed?
Before deciding whether D.D.B.'s predicate crime of attempted robbery qualifies as a crime of violence, we must address one jurisdictional issue. The government claims that D.D.B. failed to file his appeal of the transfer order within the fourteen days allowed to file a notice of appeal in a criminal matter. Fed. R. App. P. 4(b). D.D.B. claims that he is appealing from a juvenile adjudication which is a civil matter and thus subject to a sixty-day filing time limit. Id. at 4(a). The difference matters because D.D.B. filed his appeal twenty-seven days after the entry of the transfer order.
Federal agents took D.D.B. into custody on May 15, 2017, and on that same day the government filed a motion for mandatory transfer for criminal prosecution. The judge granted the motion for a transfer to adult proceedings on July 5, 2017, and six days later, on July 11, 2017, the government indicted D.D.B., charging him as an adult. At some point, the exact time of which is unclear, the docket for D.D.B.'s juvenile adjudication merged with the docket for the criminal case. D.D.B.'s counsel did not learn of the merger until August 1, 2017, when the court notified *688counsel that the notice of appeal that he had filed on July 28, 2017, under the juvenile case number, had to be refiled under the new criminal case number because of the merger.
We find that the appeal from a § 5032 transfer proceeding determination is a transfer from a civil proceeding to a criminal proceeding and thus the timeline for civil proceedings applies. Although juvenile delinquency proceedings are quasi-criminal in some aspects, they are still largely civil in nature. See, e.g., Application of Gault ,
The government correctly does not contest that juvenile proceedings are civil in nature; it argues instead that the civil proceeding ended the moment D.D.B. was transferred for criminal prosecution, or at least when he was indicted and the case docketed under a criminal case number. (It is unclear which of these is the exact point of demarcation to which the government refers-the indictment or the moment when the clerk docketed the case under a criminal cause number). The government concludes, therefore, that D.D.B.'s time to appeal depends on his current status as a criminal defendant rather than the nature of the proceeding from which he is appealing. This cannot be so. The government claims that because it was successful in its transfer proceeding, D.D.B. had but fourteen days to appeal. Under the defendant's theory, if D.D.B. had prevailed in the § 5032 proceeding and the court had deemed him a delinquent rather than an adult criminal, however, the case would have remained a civil case and the time for appeal would have been sixty days. It simply cannot be that the time for appeal from the same proceeding is sixty days if the juvenile wins and fourteen days if he loses. Time limitations for filing of an appeal cannot depend on which party prevails.
Moreover, what would have happened if the government had waited 15 days to file the indictment, or 60 days or 120 days *689(perhaps it was trying to get D.D.B. or his co-defendant to cooperate or was gathering better evidence)? If the government had waited fifteen days after the district court's order to file the indictment, then the matter would have remained a civil matter until day fifteen, and by the time it became a criminal matter it would be too late for D.D.B. to file an appeal from the transfer decision within the fourteen-day limit. The government cannot control when to turn the matter from civil to criminal. If it could, the government could manipulate the indictment and always file at least fifteen days after the decision on the motion to transfer in order to lull the defendant into thinking he had more time, and then shut the defendant out of the possibility of an appeal. And if the event that changes the deadline for filing from sixty days to fifteen days is the date upon which the clerk of the court merges the juvenile docket into the criminal docket, then this would render the clerk the arbiter of the court's jurisdiction-a strange result indeed.
But we need not wrestle with these hypothetical possibilities. A transfer proceeding is a civil proceeding for most intents and purposes, and therefore the appeal from it is a civil appeal and may be filed within the sixty-day timeframe for civil appeals. We can turn our attention instead to whether attempted robbery in Indiana is a crime of violence.
B. Is attempted robbery under Indiana law a violent crime?
We begin first with a short explanation of what it means for a crime to be, what we are calling as a shorthand, "a crime of violence." Sprinkled throughout criminal law are various statutes and Sentencing Guidelines that increase penalties or consequences based on a defendant's past crimes. See, e.g.,
At first blush, it seems like the answer to the question "is Indiana attempted robbery a violent crime?" has been unequivocally answered by two recent decisions from this court, United States v. Duncan ,
And so it seems Hill would tie this all up neatly in a bow and make for a very concise opinion. There is but one snag: the conclusion in Hill is premised on the notion that a "conviction of attempt requires proof of intent to commit all elements of the completed crime." Hill ,
Given the statutory specification that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime , we now ... adopt Judge Hamilton's analysis as the law of the circuit. When a substantive offense would be a violent felony under § 924(e) and similar statutes, an attempt to commit that offense also is a violent felony.
In Morris , Judge Hamilton hung his hat on this same intent hook when reasoning in his concurrence that "[a]ttempt requires intent to commit the completed crime plus a substantial step toward its completion." Morris , 827 F.3d at 698 (Hamilton, J. concurring) (emphasis ours). And, as we explained in Hill :
Judge Hamilton recognized that the crime of attempt requires only a substantial step toward completion, but he thought it sufficient that one must intend to commit every element of the completed crime in order to be guilty of attempt. When the intent element of the attempt offense includes intent to commit violence against the person of another, Judge Hamilton concluded, it makes sense to say that the attempt crime itself includes violence as an element.
Hill ,
In most criminal attempt statutes this premise is true-that is, the statute requires proof of intent to commit every element of the completed crime. For example, Illinois' attempt statute, which was at issue in Hill, states, "A person commits the offense of attempt when, with intent to commit a specific offense , he or she does any act that constitutes a substantial step toward the commission of that offense."
*691720 ILCS 5/8-4 (emphasis added). The crime of attempted robbery in Illinois thus requires proof of intent to carry out all of the elements of the crime of robbery, including the element of "use of force or by threatening the imminent use of force." 720 ILCS 5/18-1(a).
Indiana, however, is anomalous. That State's definition of attempted robbery does not require intent. Indiana's attempted robbery definition arises from a reading of the robbery and attempt statute together. They state as follows:
Ind. Code § 35-42-5-1 . Robbery.
a person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits robbery ...
Ind. Code § 35-41-5-1 (a). Attempt
A person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime.
The Indiana Supreme Court has been clear that the Indiana attempt law does not require the government to show intent (other than for murder), but rather only that a defendant took a substantial step toward commission of the crime. Richeson v. State ,
One must commit the crime only with "the culpability required for commission of the crime."
To understand why the lack of intent in the Indiana attempted robbery statute is important, we need to backtrack a bit and discuss what is essential to the understanding of a predicate crime. To determine whether a prior crime is a crime of violence, we look at the crime categorically. That is, we look only at the elements of the offense and not the facts underlying the conviction. Descamps v. United States ,
(1) engaging in conduct that constitutes a substantial step toward;
(2) the knowing or intentional;
(3) taking of property from the person or presence of another;
(4) by using or threatening the use of force on another person or putting another person in fear.
Stokes v. State ,
Under the holding of Apprendi, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey ,
One way to view the reasoning in Hill is to say that under the definition of attempted robbery in Illinois, once a person intends to attempt to commit robbery, that person has made a decision that she is "all in" on all aspects of the crime, including the violence. "Even though the substantial step(s) may have fallen short of actual or threatened physical force, the criminal has, by definition, attempted to use or threaten physical force because he has attempted to commit a crime that would be violent if completed." Morris , 827 F.3d at 698 (Hamilton, J., concurring). We can logically say, therefore, that the "attempt to commit the crime necessarily includes an attempt to use or to threaten use of physical force against the person or property of another." Id. at 699. But we cannot say the same about the person who is attempting robbery in Indiana. We do not know what the Indiana robber's intent was if the crime has been interrupted and has merely been attempted, but not completed, as a conviction for attempt does not require proof of intent.
The district court erred by simply applying the rationale of Duncan and Hill -that any attempted violent felony is itself a violent felony-to the crime of attempted robbery in Indiana. The district court failed to consider the import of intent to this analysis and the lack of an intent requirement in Indiana's crime of attempted robbery.
In sum, because the crime of attempted robbery in Indiana does not require a finding of intent, the reasoning of Hill does not apply. No finder-of-fact has found that D.D.B. had an intent to use, attempt to use, or threatened the use of physical force against the person of another.
Section 5032 also contains what has been called in other contexts, a "residual clause," which requires mandatory transfer where a juvenile's predicate crime involves a "substantial risk" that physical force may be used in committing the offense.
In Duncan , we held that Indiana robbery was a violent felony under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(2)(B)(i), which defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another."
Apprendi excludes from this rule "the fact of a prior conviction." In this case, neither party contests the fact of D.D.B.'s prior conviction for attempted robbery in Indiana. The only issue is what that crime entails, that is, whether it necessarily includes an intent to commit violence in a way that would qualify it as a violent crime under
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