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March 5, 1968

Ulisis NIEVES, Plaintiff,
The UNITED STATES of America, Defendant

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

In In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), the United States Supreme Court was faced with a constitutional attack on the juvenile proceedings held in an Arizona state court, which, so far as one can determine from reading Gault, were markedly different from juvenile proceedings conducted in this court under currently applicable federal law. In actuality, juvenile procedures in this court for a number of years have been the equivalent of typical adult criminal proceedings in every substantial respect save two: there is no indictment by grand jury and no trial by petit jury. In reliance upon the reasoning of Gault, plaintiff and his counsel have caused a three-judge panel to be convened to determine whether the absence of a petit jury, as mandated by the Federal Juvenile Delinquency Act ("FJDA"), 18 U.S.C. § 5033 (1964), is at variance with the demands of the Sixth Amendment of our Constitution. 28 U.S.C. § 2282 (1964).


 Ulisis Nieves was arrested for an alleged violation of the marijuana laws, 26 U.S.C. § 4742(a) (1964), on October 25, 1966. He was then only 16 years old and therefore a juvenile, as defined by the FJDA. 18 U.S.C. § 5031 (1964). On the following day he was arraigned before a United States Commissioner and assigned counsel. Pending further proceedings, he was released, without bail, in the custody of his mother. Thereafter, the government furnished him with a copy of a proposed information charging him with an act of juvenile delinquency.

 Until that time, Nieves was subject to the criminal rather than the juvenile jurisdiction of this court, although no indictment had been handed down and no formal information had been filed. Implicit in the structure of the FJDA is the rule that all juveniles alleged to have committed acts in violation of the laws of the United States are preliminarily subject to normal criminal proceedings, and the Attorney General may "in his discretion" preclude resort to FJDA proceedings by directing that the juvenile be tried as an adult. 18 U.S.C. § 5032 (1964). Whenever the Attorney General does not so direct, however, the juvenile has the choice between a normal adult trial and the advantages of the FJDA proceedings. Nevertheless, in order to gain the privileges accorded by the Act, the juvenile must consent to be proceeded against as a juvenile delinquent, and this consent is "deemed a waiver of a trial by jury." 18 U.S.C. § 5033 (1964). *fn1"

 On April 26, 1967, Nieves appeared in open court and, in the presence of his counsel, he executed the necessary consent form. The consent recited that the juvenile proceedings would be without jury. Thereupon he pleaded not guilty to the charge of juvenile delinquency.

 The following month Gault was decided by the Supreme Court. In rapid succession, Nieves' original attorney withdrew, and this court appointed his present counsel, who took three steps to obtain a jury trial in Nieves' juvenile delinquency proceeding: (1) he filed a motion in that proceeding to withdraw Nieves' consent to trial without a jury; (2) he filed a complaint in this action seeking an injunction to prevent the government from trying Nieves without a jury and asking for a declaratory judgment that 18 U.S.C. § 5033 (1964) is unconstitutional, insofar as it provides for mandatory waiver of trial by jury; and (3) he filed a motion in this action requesting the convention of a three-judge district court.

 With the consent of counsel and the approval of Judge Tyler, who heard the motion to convene the panel, proceedings in the juvenile delinquency case have been temporarily suspended. Upon consent of the government, the motion for convention of a three-judge panel was granted.

 Crucial to plaintiff's argument is the proposition that notwithstanding his youth, the Sixth Amendment guarantees him a trial by jury before he can be incarcerated for the crime of selling marijuana. Nevertheless, if he chooses to assert his constitutional right, he risks possible imprisonment for up to twenty years, 26 U.S.C. § 7237(b) (1964), as well as the threat of the stigma which attaches to a criminal conviction. To induce him to waive his constitutional right, Congress has offered him the alternative of a maximum commitment until the age of 21, as well as the freedom from the label of a common criminal, if he chooses the procedures under the FJDA. See 18 U.S.C. §§ 5032, 5034 (1964). Plaintiff contends that in enacting the FJDA, Congress has fashioned a statutory scheme which extracts a waiver of his constitutionally guaranteed right to a jury trial in an impermissible manner and punishes him if he elects to assert it.

 Nieves further urges that, notwithstanding our decision on the above issues, Gault must be read as granting a juvenile the right to a petit jury in all FJDA cases.

 We agree with plaintiff's basic contention and hold that (1) his waiver of jury trial cannot be permitted to stand, and (2) the Attorney General cannot proceed against him as a juvenile without affording him his constitutionally protected jury trial.


 As is so often the case where three-judge district court panels are involved, questions of jurisdiction abound. Although a number of these have been eliminated because the government has consented to this procedure, certain other questions cannot be obviated by its consent. Primary among them are the subject matter jurisdiction requirement and mootness.

 Plaintiff, in his moving papers, rested jurisdiction upon 28 U.S.C. § 2282 (1964), the three-judge panel statute. It is settled law, however, that some independent source of jurisdiction must be relied upon for a statutory court to have the requisite subject matter jurisdiction. See Jacobs v. Tawes, 250 F.2d 611 (4th Cir. 1957); cf. Lion Mfg. Corp. v. Kennedy, 117 U.S. App D.C. 367, 330 F.2d 833 (1964). But cf. Reed Enterprises v. Corcoran, 122 U.S. App. D.C. 387, 354 F.2d 519 (1965). In this case it is supplied by 18 U.S.C. § 5033 (1964), the Congressional grant of jurisdiction of juvenile proceedings to the district courts. Jurisdiction under the general federal question provision, 28 U.S.C. § 1331 (1964), seems absent because plaintiff has failed to allege that the amount in controversy exceeds the required $10,000.

 As for mootness, the government could argue, as it has not chosen to do, that the question is not justiciable because the matter was resolved by Nieves' voluntary waiver of his right to jury trial in the consent executed April 26, 1967. We have concluded, however, that Nieves' consent to FJDA proceedings did not bar this action on the theory of mootness. Last term's Supreme Court decision of Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967) dictates this result. In that case, the Court held that under federal standards, a New Jersey policeman could not be deemed to have waived his privilege against self-incrimination when he testified after being warned that a failure to do so would subject him to removal from office. Though the officer incriminated himself at the investigation and did not make his objection until a subsequent trial, the Supreme Court ruled his statements were involuntary and inadmissible, since they were the product of the coercion created by the "rock or whirlpool" choice presented to the defendant. Although the policeman had initially succumbed to compulsion, he apparently preserved his objection by raising it at "the earliest possible point"-the trial stage. Since we hold hereinafter that Nieves was presented with the same kind of impermissible coercion as the defendant in Garrity and he has objected at an even earlier stage, we follow the rationale of that decision and conclude that Nieves never voluntarily and effectively waived his right to a jury trial.

 In addition, in light of the fact that Gault was not decided until after Nieves' purported waiver, we cannot say that his action was "an intentional relinquishment or abandonment of a known right or privilege". Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938); see Grosso v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968). *fn2"

 Though it is conceivable that in some view of the facts of this case a single judge could properly rule on Nieves' constitutional claim, we feel that the wiser course is a determination by a statutory panel. While a single district judge is without power to act in a case requiring three judges, the opposite is not true. Swift & Co. v. Wickham, 230 F. Supp. 398, 410 (S.D.N.Y.1964), appeal dismissed, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965). We note that the only consequence of an erroneous retention of jurisdiction by this panel is some uncertainty as to where appellate review should be had. Ibid. Following the practice approved of by the Supreme Court in its review of the Swift case, "out of abundant caution" we formally certify the obvious fact that Judge Tyler has reached the same conclusion as the entire panel.


 Aside and apart from any statutory rights Nieves would have in his juvenile delinquency proceeding, it is uncontroverted that if he chose to be prosecuted under the criminal statute he allegedly violated, he would be protected by the full panoply of constitutional rights available to adults. "[The] Bill of Rights applies to every individual within the territorial jurisdiction of the United States, irrespective of age. The Constitution contains no age limits." Trimble v. Stone, 187 F. Supp. 483, 486 (D.D.C.1960). The Supreme Court is in apparent agreement, noting ...

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