By Nate Nieman
Nieman Law Group
Nieman Law Group
The juvenile
appellant in U.S. v. Sealed Defendant Juvenile Male (4), No. 16-3311, (7th Cir. 2017), along with two other
juveniles and an adult, allegedly robbed a CVS store in Indianapolis at
gunpoint. They were charged in federal court with Hobbs Act Robbery and
possession of a firearm during a robbery. The Government sought to transfer the
juveniles’ cases for adult prosecution under 18
U.S.C. § 5032. In order to transfer a case under 18 U.S.C. § 5032, the transfer
must be “in the interest of justice,” which the court determines by making
certain findings related to the offense and the juvenile offender.
The
Government moved to have the juveniles examined by government psychologists to
provide evidence showing that it would be in the interest of justice to try the
juveniles as adults. The juveniles objected, arguing that the examinations,
which would be conducted without their lawyers present, violated their Fifth
and Sixth Amendment rights. The magistrate disagreed and ordered the juveniles to
submit to the examination without their lawyers present. The district court
agreed with the magistrate, and the juvenile appellant in this case filed an
interlocutory appeal, arguing that the examination would violate his
constitutional rights.
The
Seventh Circuit never reached the merits of his appeal because the court
dismissed the appeal after determining that it was without jurisdiction to hear
it. The court has jurisdiction only over final decisions from the district
court. 28 U.S.C. § 1291. A final decision is “one which ends the litigation on
the merits and leaves nothing for the court to do but execute the judgment.” Gelboim
v. Bank of Am. Corp., 135 S. Ct. 897, 902 (2015) (quoting Catlin v.
United States, 324 U.S. 229, 233 (1945)). However, the court also noted
that “There does exist a ‘small class’ of nonfinal orders that ‘finally
determine claims of right separable from, and collateral to, rights asserted in
the action, too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the whole case
is adjudicated.’ ” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949). These are called “collateral orders,” and they are “immediately
appealable if three elements are satisfied: the nonfinal order must ‘(1) be
conclusive on the issue presented; (2) resolve an important question separate
from the merits of the underlying action; and (3) be “effectively unreviewable”
on an appeal from the final judgment of the underlying action.’ ” Doe v.
Vill. Of Deerfield, 819 F.3d 372, 375 (7th Cir. 2016) (quoting Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)).
In
determining whether the district court’s order allowing the defendants to be examined
by the psychologists without their lawyers present was an immediately
appealable collateral order, the Seventh Circuit focused on the third
factor—whether the district court’s order allowing this evaluation was
“effectively unreviewable” on an appeal from the final judgment of the
underlying action. An order is “effectively unreviewable” only when it involves
“an asserted right the legal and practical value of which would be destroyed if
it were not vindicated before trial.” United States v. MacDonald, 435
U.S. 850, 860 (1978). The court determined in this case that the district
court’s order allowing the examination was not “effectively unreviewable” under
this standard, explaining that “Had M.G. waited to appeal until after the
district court had issued an order granting the government’s motion to transfer
under 18 U.S.C. § 5032, then we would be able to consider the merits of his
argument now,” citing United States v. J.J.K., 76 F.3d 870, 871-72 (7th
Cir. 1996) (holding that a transfer order issued under 18 U.S.C. § 5032 is an
appealable collateral order).
In
other words, the defendant would have had to submit to the government
psychologist’s examination and then the court would have to enter a transfer
order under 18 U.S.C. § 5032 before the defendant could file an interlocutory
appeal challenging the transfer order itself. The court cited cases from three
other circuits where defendants had done just that. See Juvenile Male,
554 F.3d 456 (4th Cir.); Mitchell H., 182 F.3d 1034 (9th Cir.); A.R.,
38 F.3d 699 (3d Cir.). Because the defendant in this case did not wait until
the transfer order was entered before filing his interlocutory appeal, the
order allowing the defendant to be examined by the government psychologist was
not considered appealable and the Seventh Circuit dismissed his appeal without
considering the merits.
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