UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-4959

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERT DEWAYNE BILBO,

Defendant-Appellant.

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No. 93-5271

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUVENILE-MALE,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Texas

(April 13, 1994)2

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant makes this interlocutory appeal challenging the

district court's order transferring the action from juvenile court

to one in which he will be prosecuted as an adult. We affirm the

district court.

I.

A.

In case number 93-4959, the Government fi led a three-count

sealed information against Robert Bilbo charging that: (1) on

February 3, 1993, he possessed more than five grams of cocaine base

(crack) with the intent to distribute it; (2) on March 17, 1993, he

possessed more than five grams of crack with the intent to

distribute it ; and (3) on April 23, 1993, he possessed more than

fifty grams of crack with the intent to distribute it. According

to an affidavit supplied by Howard Jake Smith, a Sergeant with the

State of Texas Department of Public Safety, Narcotics Division,

Bilbo made three drug sales t o undercover agents. The first and

second sales listed in the information involved 22 grams of crack,

while the third sale was for 62 grams.

The Government moved to transfer Bilbo for prosecution as an

adult, whereupon the district court referred the case to a

magistrate judge for a hearing. Following an evidentiary hearing

pursuant to 18 U.S.C. § 5032, the magistrate judge issued proposed

findings on five of six elements required to support transfer. The1 Bilbo was born on July 31, 1975, and was at least 17 1/2

at the time of the offenses.

2 Bilbo's first contact with the juvenile system occurred in

August 1990, when he was arrested on charges of assault and of

being a runaway. In May 1991, Bilbo was arrested on charges of

aggravated assault. In October 1991, Bilbo was arrested on

charges of disorderly conduct. In December 1991, Bilbo was

arrested for driving offenses and possession of crack. Finally,

in July 1992, a juvenile court adjudicated Bilbo delinquent and

placed him on one year of probation based on charges of evading

arrest and delivery of between 28 and 400 grams of cocaine.

3 magistrate judge found that Bilbo's age 1 indicated transfer was

appropriate. B ilbo's social background, which included a troubled

family life wi th no substantial parental influence or guidance,

could be considered neutral or favoring transfer. T he nature of

the alleged offenses--serious drug crimes--also supported transfer.

The magistrate judge further found that Bilbo's extensive prior

delinquency recor d 2 and the nature of past treatment efforts and

Bilbo's response to those efforts favored transfer. Finally, the

magistrate judge determined that Bilbo's present intellectual

development and psychological maturity were a neutral factor.

However, the magistrate judge recommended denying the motion

to transfer because the Government failed to present any evidence

on the availability of federal juvenile treatment programs, a sixth

factor that must be considered under § 5032 in determining whether

a transfer would be proper. T he Government objected to the

magistrate judge's recomm endation. T he district court held an

evidentiary hearing on the availability of federal juvenile

treatment progr ams. The court determined the evidence at the

supplemental hearing established that better treatment4

opportunities are available for juveniles in the adult Bu reau of

Prisons (BOP) programs, and the court adopted the magistrate

judge's proposed findings on the first five factors. Accordingly,

the court granted the Government's motion, finding five of the six

factors listed in § 5032 favored transfer.

B.

In case number 93-5271, the Government filed a sealed

informatio n alleging that on May 19, 1993, Bilbo possessed more

than 90 grams of crack and 280 grams of cocaine powder with the

intent to distribute and carried a firearm during and in relation

to that drug trafficking offense. According to an affidavit from

Sergeant Smith, Bilbo agreed to sell 94 grams of crack and 280

grams of cocaine powder to an undercover agent for $14,000.

Officers discovered that Bilbo's companion, Tony Tolliver,

possessed a firearm during the transaction. T oll iver reportedly

told the officers that Bilbo gave him the firearm for protection

during the transaction.

The Government again moved to transfer Bilbo for prosecution

as an adult. F ollowing a hearing, the magistrate judge recommended

granting the Government's motion. T he magistrate judge adopted the

district court's findings from case number 93-4959 on five of the

six statutory factors. R egarding the nature of the alleged

offenses, the sec ond factor, the magistrate judge found that the

seriousness of the two offenses supported transfer. The district

court adopted the magistr ate judge's recommendation over Bilbo's5

objection to the sufficiency of the evidence on the availability of

federal juvenile programs.

Bilbo obtained a stay of prosecution in both cases pending

appeal and this Court granted his motion to consolidate the

appeals. The parties have briefed the question whether the

district court's transfer order is appealable before trial. Bilbo

argues that the distric t court abused its discretion by

transferring him because there had been no prior attempts at

rehabilitating him in the juvenile system. Bilbo further contends

that the district court committed reversible error in case number

93-4959 by considering the May 19, 1993, offense for which he had

not yet been charged, in determining whether the nature of the

"alleged offense" supported transfer.

II.

A.

This Court has not previously addressed wheth er a transfer

order is immediately appealable, though in United States v. Doe

,

871 F.2d 1248, 1250 (5th Cir. 1989), the Court considered the

merits of a pretrial appeal from such an order. Every Circuit that

has considered the issue has held that transfer orders are

appealable under the collateral order exception to th e final

judgment rule. S ee, e.g

. , United States v. Gerald N. , 900 F.2d

189, 189-90 (9th Cir. 1990); In Re Sealed Case

, 893 F.2d 363, 366-

68 (D.C. Cir. 1990); United States v. A.W.J.

, 804 F.2d 492, 492-93

(8th Cir. 1986); United States v. C.G.

, 736 F.2d 1474, 1476-77

(11th Cir. 1984).6

The collateral order exception permits appeal of an

interlocutory order if the district cour t's ruling conclusively

determines the disputed question, resolves an important issue that

is completely separate from the merits, and cannot effectively be

reviewed on appeal from a final judgment. C ohen v. Beneficial

Indus. Loan Corp.

, 337 U.S. 541, 546 (1949). The transfer order

easily satisfies the first two requirements--it conclusively

determines that Bilbo will be tried as an adult and it does not

affect the merits of the criminal case. S ee C.G. , 736 F.2d at

1476. The third prong of the test requires a showing that the

legal and practical value of the asserted right would be destroyed

if it were not vindicated before trial. S ee Midland Asphalt Corp.

v. U.S. , 489 U.S. 794, 799 (1989).

Other courts have concluded that the legal and practical value

of the right to be tried as a juvenile would be destroyed without

the concomitant right of immediate appeal of a transfer order. S ee

Gerald N.

, 900 F.2d at 190-91; In Re Sealed Case

, 893 F.2d at 366-

68; A.W.J.

, 804 F.2d at 493; C.G.

, 736 F.2d at 1476-77. These

courts note that the "sealing of records and the withholding of

name and picture from news media are examples of rights granted to

juveniles by 18 U.S.C. § 5038 . . . that would be `irretrievably

lost unless the juvenile is permi tted to appeal the district

court's order before conviction' as an adult." G erald N.

, 900 F.2d

at 190 (quoting C.G.

, 736 F.2d at 1477). "In addition, if

convicted and sentenced t o prison, [the juvenile] would face the

distinct possibility of incarceration in an adult penal institution7

during the pendency of his appeal, since under the Bail Reform Act

of 1984 it is no easy matter to obtain bail pending appeal."

A.W.J.

, 804 F.2d at 493. For these reasons, we will hear this

appeal prior to trial.

B.

Appellant argues that the district court abused its discretion

by transferring him because there had been no prior attempts at

rehabilitating him in the juvenile system. "The decision whether

to transfer a juvenile to trial as an adult under 18 U.S.C. § 5032

is within the sound discretion of the trial court, provided the

court employs and makes findings as to the six criteria outlined in

the Code." D oe

, 871 F.2d at 1255. The guiding principle in

transfer proceedings is whether a t ransfer would be in the

interests of justice. I d. at 1252 (quotations omitted). The

statute mandates that the district court consider the following

factors in reaching its decision:

the age and social background of the juvenile; the nature

of the alleged offense; the extent and nature of the

juvenile's prior delinquency record; the juvenile's

present intellectual development and psychological

maturity; the nature of past treatment effort s and the

juvenile's response to such efforts; [and] the

availability of programs designed to treat the juvenile's

behavioral problems.

18 U.S.C. § 5032.

The district court made findings on each of these factors in

number 93-4959. Bilbo attacks the court's finding on the fifth

factor--the nature of past treatment efforts and the juvenile's

response to such efforts. Concerning this factor, the district

court found:8 [T]he juvenile was adjudicated to have engage d in

delinquent conduct with regard to two charges on July 28,

1992 and was placed on probation. Although ordered to

report to his p robation officer twice per month, Bilbo

reported only once at the outset of his probati onary period. Furthermore, the present offense occurred while

on probation.

Bilbo has failed to cooperate with authorities when

previou sly placed in a supervised situation. His

resistance to counseling efforts and defiance of

authority may be considered in determining whether

juvenile or adult proceedings are appropriate. . . .

Bilbo's poor response to previous treatment efforts

(probation) weighs in favor of transfer.

The test imony of Eric Rhodes, an Orange County juvenile

probation o fficer who supervised Bilbo, supports these findings.

Rhodes testified that Bilbo did not respond to probation at all.

Bilbo only reported to the probation office once, on August 28,

1992. He was supposed to report twice per month. R hodes attempted

to contact Bilbo by calling his grandmother and his school, but was

una ble to reach him. T he school informed Rhodes that it had

withdrawn Bilbo from school. R hodes next heard that Bilbo had been

arrested on weapons charges in March 1993. At that time Rhodes's

office decided to drop Bilbo from probation because charges were

pending in adult court and Bilbo was no longer a juv enile under

Texas law. R hodes testified that, in his opinion, Bilbo should be

treated as an adult.

Bilbo correctly observes that the main purpose of the Juvenile

Justice and Delinquency Act, 18 U.S.C. §§ 5031-42, is to "remove

juveniles from the ordinary criminal process in order to avoid the

stigma of a prior criminal conviction a nd to encourage treatment

and rehabilitation." U nited States v. Brian N.

, 900 F.2d 218, 220

(10 th Cir. 1990). Bilbo asserts that there has never been a3 The juvenile court record contradicts this testimony. In a

document prepared for the court's use in the proceeding, Rhodes

recommended one year of court-ordered probation. Juv. Rec. tab

B.

9 meaningful attempt at rehabilitating him. As support, he points to

Rhodes's testimony that, in connection with Bilbo's adjudication of

d elinquency, he recommended that Bilbo be committed to the Texas

Youth Commission. 3 Bilbo therefore argues that the district court

had no ba sis for concluding that he could not be rehabilitated.

Bilbo's argument misapprehends the nature of the t ransfer

proceeding and ignores his response to probation. "[W]hile

rehabilitation is a priority, the courts are not required to apply

the juvenile justice system to a juvenile's diagnosed intellectual

or behavioral problems when it would likely prove to be nothing

more than a futile gesture." D oe

, 871 F.2d at 1253. Bilbo's

performance on probation demonstrates that his potent ial for

rehabilitation in the juvenile system is poor. See United States

v. G.T.W.

, 99 2 F.2d 198, 199-200 (8th Cir. 1993) (juvenile's

failure to follow court orders following earlier truancy

proceedings indicates poor prospects for rehabilitation); In re J.

Anthony G.

, 690 F. Supp. 760, 764, 766 (S.D. Ind. 1988) (juvenile's

inability to comply with conditions of release indicated need for

structured treatment and favored transfer).

The district court also noted that Bilbo had a troubled family

life with no significant parental involvement. His maternal

grandparents raised him and have been unable to control his

behavior. T he court concluded that this evidence indicated t h e10

familial support necessary for Bilbo to avoid future criminal

activity is l acking and limited the likelihood of successful

rehabilitation

. T he court also observed that Bilbo's extensive

delinquency record revealed a pattern of criminal conduct, making

his prospects for rehabilitation poor. Accordingly, the district

court fully considered Bilbo's prospects for rehabilitation and

concluded that they were remote. The record supports this

conclusion.

C.

Bilbo next contends that in case number 93-4959, the district

court erred by considering as par t of the "nature of the alleged

offense," the charge that he distributed 90 grams of crack and 280

grams of cocaine powder to undercover officers on May 19, 1993.

Relying on In Re Sealed Case

, 893 F.2d 363 (D.C. Cir. 1990), Bilbo

argues that, in transfer proceedings, the district co urt may

consider only charged criminal acts under the rubric of "the nature

of the alleged offense." 18 U.S.C. § 5032. In I n Re Sealed Case

,

the court held: "The plain language of the phrase, the text

surrounding it and principles of due process make clear that

Congress did not intend § 5032's 'the nature of the alleged

offense' category to encompass evidence of other uncharged crimes."

893 F.2d at 368.

The Government correctly points out that it introduced

testimony regarding the May 19, 1 993, incident without any

objection from Bilbo. "If there is no contemporaneous objection to

testimony whose admissibility is contested on appeal, the 'plain11

error' standard of review applies." United States v. Garcia , 995

F.2d 556, 561 (5th Cir. 1993). In order to constitute plain error,

t he error must have been so fundamental as to have resulted in a

miscarriage of justice. I d. Any error the district court may have

committed in considering evidence of the May 19 incident does not

rise to the level of plain error for two reasons.

First, there is ample evidence to support the district court's

decision to transfer Bilbo without considering the May 19 incident.

The district court found that five of the six statutory factors

supported transfer and the other factor was neutral. This was not

a close case. Moreover, unlike I n re Sealed Case

, the dis trict

court here did not assign added weight to the uncharged conduct.

See 893 F.2d at 365. The court considered the May 19 incident as

only one part of the nature of the alleged offense factor.

Further, the other three instances of distribution which had been

charged in number 93-4959 involved large amounts of crack (22, 22,

and 62 grams), though not as much as the May 19 incident (over 90

grams of crack and 280 grams of powder), and revealed a continuous

course of criminal conduct over a period of time. These

characteristics, which existed independent of the May 19 incident,

led the district court to conclude that the nature of the alleged

offense factor weighed i n favor of transfer. A ccordingly, even

without considering the May 19 incident, the district court would

have determined that this factor supported transfer and would have

transferred Bilbo. C f. In re Sealed Case

, 893 F.2d at 369 n.13wjl\opin\93-4959.opn

JWL\eb 12 (court not convinced district court would have transferred juvenile

absent evidence of uncharged crime).

Second, in number 93-5271, the Government charged Bilbo with

two crimes arising from the May 19 in cident. The district court

considere d all four instances of distribution in connection with

the transfer proceeding in that case. Thus, as the Government

points out, Bilbo is, essentially, in the same position he would

have been in had the Government charged all four dis tribution

crimes in the first information. Therefore, the district court did

not err in its determination of "the nature of the alleged

offense."

III.

The district court's transfer order is AFFIRMED.