Friendly, Chief Judge, Timbers, Circuit Judge, and Jameson, District Judge.*fn*
Appellant, following a jury trial, was convicted of larceny from a federally insured savings and loan association in violation of 18 U.S.C. 2113(b) and sentenced to ten years imprisonment. He appealed, contending that (1) the district court erred in refusing to suppress his oral statement to an F.B.I. agent, and (2) under 18 U.S.C. section 5032 the court had no jurisdiction to try him as an adult. We affirmed on the first claim. Recognizing that the record was incomplete "as to whether appellant refused to consent to juvenile procedure or whether the Attorney General directed criminal prosecution", we remanded for findings and further evidence, if necessary, on this issue. United States v. Williams, 442 F.2d 1039, 1040 (2 Cir. 1971).
The hearing on remand was held on July 9, 1971 and September 8, 1971.*fn1 On September 22, 1971 the district judge entered a Memorandum of Decision and Order finding that the district court "had jurisdiction to proceed to trial of the defendant in a criminal prosecution as an adult. Not only did the defendant knowingly refuse to consent to treatment as a juvenile delinquent, but the Attorney General expressly directed that he be proceeded against as an adult."
18 U.S.C. § 5032 provides:
"A juvenile alleged to have committed one or more acts in violation of a law of the United States not punishable by death or life imprisonment, and not surrendered to the authorities of a state, shall be proceeded against as a juvenile delinquent if he consents to such procedure, unless the Attorney General, in his discretion, has expressly directed otherwise.
"In such event the juvenile shall be proceeded against by information and no criminal prosecution shall be instituted for the alleged violation."
Under section 5033 the consent must be given "in writing before a Judge of the District Court of the United States having cognizance of the alleged violation, who shall fully apprise the juvenile of his rights and of the consequences of such consent. Such consent shall be deemed a waiver of a trial by jury."
The sole issue for determination on this appeal is whether the appellant knowingly refused to consent to treatment as a juvenile delinquent and waived his rights under the Juvenile Delinquency Act. While the district court found further that the Attorney General expressly directed that appellant be proceeded against as an adult, the Government has recognized in its brief that since "the defendant did not consent to juvenile delinquency treatment there was no need to secure the Attorney General's explicit authorization to treat appellant as an adult." It is expressly stated that "the Attorney General never authorized adult prosecution."
It is recognized at the outset that there is no statutory requirement that the court apprise the juvenile of his rights except in connection with his signing of a written consent to proceed under the Juvenile Delinquency Act. Nor is there any requirement for a written refusal to consent. It is clear, however, that in order to make an intelligent waiver of his rights under the Act and knowingly refuse to consent, a juvenile must in some manner be fully apprised of his rights and the respective consequences of proceeding under the Juvenile Delinquency Act and as an adult.
Appellant was 16 years of age when the offense was committed on December 13, 1967. He was arrested on July 2, 1968 and arraigned before a United States Commissioner. Simon Chrein, Senior Trial Attorney of the Legal Aid Society, was assigned to represent appellant and did in fact represent him from the time of arraignment through trial. The indictment was filed March 13, 1969. At the time of his jury trial in April, 1970 and his sentencing on July 6, 1970 appellant was 18 years of age.*fn2 A juvenile is defined by 18 U.S.C. § 5031 as a person who has not attained his eighteenth birthday. This refers to the time when the offense was committed. United States v. Fotto, 103 F. Supp. 430 (S.D.N.Y.1952).
At the remand hearings the Government relied upon the testimony of Herbert Tamres, the Assistant United States Attorney who prosecuted the case, and an exchange of letters between Mr. Tamres and the Department of Justice. Appellant and his parents testified. Mr. Chrein was not called by either party.
In a letter dated January 14, 1969 Tamres requested authorization to proceed against Williams and two co-defendants "under the adult criminal statutes, rather than as juvenile delinquents." The letter reads in part:
"The undersigned has made frequent requests of the attorneys for the three defendants for their consent to proceed against them as juveniles. * * * Charles Williams has had the Legal Aid Society assigned to represent him and he, too, will not agree to juvenile treatment. * * *
"In view of the above factors, it appears that there is no other recourse in these matters but to proceed against these defendants under the adult criminal statutes." (Ex. 1).
In reply the Department of Justice wrote in part:
"All three defendants have refused to consent to juvenile procedure under the Federal Juvenile Delinquency Act. In these circumstances you see no alternative to criminal prosecution and you request our advice.
"The statute, 18 U.S.C. § 5032, requires that a consent to juvenile procedure be executed in writing before the United States District Court. If the subjects refuse to consent to juvenile procedure, no authorization is needed for criminal prosecution. To protect your record, you should make a record of the subjects' refusal to accept juvenile procedure. ...