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UNITED STATES v. ROMBOM

October 22, 1976

UNITED STATES OF AMERICA
v.
STEVEN PAUL ROMBOM, Defendant



The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Steven Paul Rombom, charged as a juvenile delinquent, moves for an order declaring Section 5032 of the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031 et seq. (1974), unconstitutional on its face and as applied on the ground that that section places an impermissible burden on his Fifth Amendment right to plead not guilty and his Sixth Amendment right to a trial by jury.

 The pertinent portion of § 5032 provides:

 
"A juvenile who is alleged to have committed an act of juvenile delinquency and who is not surrendered to State authorities shall be proceeded against under this chapter unless he has requested in writing upon advice of counsel to be proceeded against as an adult, except that, with respect to a juvenile sixteen years and older alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a felony punishable by a maximum penalty of ten years imprisonment or more, life imprisonment, or death, criminal prosecution on the basis of the alleged act may be begun by motion to transfer of the Attorney General in the appropriate district court of the United States, if such court finds, after hearing, such transfer would be in the interest of justice."

 Rombom relies on United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968), where the Supreme Court held that the death penalty provision of the Federal Kidnaping Act violated the Fifth and Sixth Amendments because the death penalty could be imposed only after a jury verdict of guilty, upon the jury's recommendation that it be imposed. The Court held that because a defendant could avoid exposure to the death penalty only by pleading guilty or waiving a jury trial, the provision needlessly encouraged such pleas or waivers and placed an impermissible burden on the assertion of constitutional rights. 390 U.S. at 583.

 Rombom now contends that § 5032 similarly discourages assertion of his constitutional rights because he is coerced into pleading guilty to the juvenile charges in order to avoid exposure to the potentially greater penalties if the government is successful on its motion to transfer and he is ultimately convicted of the adult offenses. We disagree and deny the motion.

 FACTS

 The government filed an information on August 5, 1976, charging Rombom with fourteen acts of juvenile delinquency, including unlawful possession and interstate transportation of firearms and explosives, and assaulting foreign officials and official guests of the United States. Eleven of the acts charged would be felonies punishable by ten years imprisonment, or more, if committed by an adult. The government was, therefore, entitled to move to transfer him to adult status. See 18 U.S.C. § 5032, supra.

 Rombom pleaded not guilty to the information on August 6, 1976, and immediately thereafter the government moved to transfer him to adult status. On August 30, 1976, at the commencement of the hearing on the motion, counsel for Rombom made this motion to declare the statute unconstitutional. Counsel represented at that time that Rombom still wished to plead not guilty but contended, nevertheless, that under the Jackson rationale the statute was invalid. We reserved decision on the constitutional issue and continued with the hearing.

 On September 28, 1976, the last of several days of hearing on the motion, counsel indicated that Rombom wanted to plead guilty to the information. Rombom, however, never personally offered to plead guilty but, in any event, we refused to accept counsel's offer and, after finding that transfer of Rombom to adult status would be in the interest of justice, granted the government's motion to transfer.

 At the time the information was filed, Rombom was approximately 17-1/2 years old. The maximum penalty he could receive as a juvenile would be 3-1/2 years, or until he reaches the age of 21. 18 U.S.C. § 5037(c). If, however, Rombom were tried and convicted as an adult, he would be subject technically, but not realistically, to a maximum term of imprisonment well over a hundred years.*

 DISCUSSION

 Rombom argues on the one hand that he has a constitutional right to plead guilty to the information, and on the other that the statute which gives ...


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