The opinion of the court was delivered by: RICHEY
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE
H.S., Jr. is seventeen years old. The Government has filed a three-count Information against him charging three counts of distribution of cocaine in violation of 21 U.S.C. § 841(a) (1).
In addition, the United States Attorney has certified that the offenses charged violate Section 401 of the Controlled Substances Act, and that there is a substantial federal interest in the case against H.S., Jr. so as to warrant the exercise of federal jurisdiction. Based on the Information and the United States Attorney's certification, the Government has filed a motion pursuant to 18 U.S.C. § 5032 to transfer H.S., Jr. to adult status for the purpose of criminal prosecution. The Court held a hearing on the Government's motion to transfer on June 16, 1989, and resumed that hearing in June 23, 1989.
At the conclusion of the hearing, the Court took the Government's motion to transfer under advisement.
The decision of whether to transfer a juvenile to adult status has serious consequences. Despite the grave consequences that transfer may hold for H.S., Jr.'s future, the Court must conclude, based on a review of the entire record and the factors set forth in 18 U.S.C. § 5032, that the requested transfer is in the interest of justice.
THE EVIDENTIARY STANDARDS IN PLACE AT A TRANSFER HEARING
At the transfer hearing, the Government introduced a confession that H.S., Jr. made to police officers during an interview in connection with a homicide investigation.
Counsel for H.S., Jr. objected on Fifth Amendment grounds. Whether a Fifth Amendment objection can properly be made at a transfer hearing is a question that the Supreme Court has explicitly left unanswered. Although the Supreme Court has held that a transfer hearing must comport with "the essentials of due process and fair treatment," it "has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court." Breed v. Jones, 421 U.S. 519, 537, 44 L. Ed. 2d 346, 95 S. Ct. 1779 (1975). Because of the dearth of guidance on the availability of Fifth Amendment protections at a transfer hearing and the existence of evidence in the affidavit in support of the warrant for H.S., Jr.'s arrest which is the substantial equivalent of H.S., Jr's confession, the Court will strike H.S., Jr.'s confession from the record.
While the availability of Fifth Amendment protections at a transfer hearing is a question that remains to be resolved, the law is clear that the strict evidentiary rules in place at a criminal trial are not binding in a transfer hearing. See United States v. Doe, 871 F.2d 1248 (5th Cir. 1989). As such, findings in support of a decision to transfer can be based on hearsay evidence, and evidence that will not otherwise be admissible at trial.
THE STANDARD GOVERNING TRANSFER TO ADULT STATUS
When a juvenile is alleged to have committed an act of juvenile delinquency, the Federal Juvenile Delinquency Act ("FJDA") allows the Attorney General
to request that proceedings against a juvenile be instituted in federal district court. As a prerequisite to this request, the Attorney General must certify that:
(1) the juvenile 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 or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), or section 1002(a), 1003, 1005, 1009, or 1010(b) (1), (2), or (3) of the Controlled Substances Import and Export Act . . . or section 922(p) of this title, 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. The certification has the effect of allowing the Attorney General to proceed against a juvenile in federal district court; however, the certification, standing alone, does not authorize the Attorney General to proceed against a juvenile as an adult.
There are several factual scenarios that trigger the mandatory transfer provision. One such factual scenario is as follows: the juvenile is alleged to have violated section 401 of the Controlled Substances Act after his sixteenth birthday, and a previous adjudication has determined that the juvenile previously committed the same offense, even if the adjudication was under a state felony statute. H.S., Jr.'s case squarely fits this factual scenario.
Nevertheless, in the precise context of this case, the ex post facto clause of the Constitution precludes application of the mandatory transfer provision to H.S., Jr, because the relevant portion of the provision did not become effective until November 18, 1988, and the last act of distribution charged in the Information occurred on November 14, 1989.
At first blush, the mandatory transfer provision appears to be nothing more than procedural; therefore, its application to H.S., Jr. should not create an ex post facto violation. Such a conclusion, however, ignores the practical effect of the provision's application. Prior to November 18, 1988, the law provided that the transfer of H.S., Jr. to adult status would be discretionary, and contingent upon where the "interest of justice" lies. On November 18, 1988, however, the law was changed so as to make such transfer mandatory. Thus, retroactive application of the November 1988 amendment to the mandatory transfer provision would have the effect of placing H.S., Jr. at a substantial disadvantage. Assuming H.S., Jr. committed the alleged acts, application of the mandatory transfer provision, as amended in 1988, would mean the difference between a ...