Dave Stafford for www.theindianalawyer.com
A juvenile accused of robbing a pharmacy might not be tried in federal criminal court because attempted robbery is not considered a violent crime in Indiana, the 7th Circuit Court of Appeals ruled Tuesday, vacating the teen’s waiver to be tried as an adult.
D.D.B. was arrested with an adult accomplice shortly after an Indianapolis pharmacy robbery, after which the government moved in May 2017 to waive him to federal criminal court. Chief Judge Jane Magnus-Stinson of the Southern District of Indiana, Indianapolis, granted the waiver about two months later, based on D.D.B.’s first juvenile delinquency adjudication, for what would have been attempted robbery if committed by an adult.
“The district court held that (attempted robbery) is indeed a crime of violence,” one of the requirements for a juvenile waiver to criminal court, Judge Ilana Rovner wrote for the panel in the United States of America v. D.D.B., 17-2563.
“At first blush, it seems like the answer to the question ‘is Indiana attempted robbery a violent crime?’ has been unequivocally answered by two recent decisions from this court, United States v. Duncan, 833 F.3d 751 (7th Cir. 2016), and Hill v. the United States, 877 F.3d 717 (7th Cir. 2017). In Duncan, we held that robbery under Indiana law qualifies as a violent felony. Duncan, 833 F.3d at 758. And in Hill, we held that ‘[w]hen a substantive offense would be a violent felony under § 924(e) and similar statutes, an attempt to commit that offense also is a violent felony.’”
But in vacating D.D.B.’s waiver from juvenile court, the panel noted Indiana’s armed robbery statute lacks an intent element, “and so a conviction by itself does not establish that the defendant had intent. He could simply knowingly take a substantial step toward the taking of property through force or fear. One would have to look behind the conviction to the underlying facts to know if he had the intent to commit the crime, and this we cannot do,” Rovner continued.
“One way to view the reasoning in Hill is to say that under the definition of attempted robbery in Illinois, once a person intends to attempt to commit robbery, that person has made a decision that she is ‘all in’ on all aspects of the crime, including the violence.
“… We can logically say, therefore, that the ‘attempt to commit the crime necessarily includes an attempt to use or to threaten the use of physical force against the person or property of another,’” Rovner concluded. “But we cannot say the same about the person who is attempting robbery in Indiana. We do not know what the Indiana robber’s intent was if the crime has been interrupted and has merely been attempted, but not completed, as a conviction for attempt does not require proof of intent.”
The panel also concluded D.D.B.’s appeal was timely, as it was an appeal from a juvenile proceeding, a civil matter in which 60 days are allowed for filing appeals.
On remand, the panel noted, the district court may consider either of D.D.B.’s two other predicate delinquency adjudications — burglary and conspiracy to commit robbery — to see if they meet the legal threshold of violent crimes that would allow the government to try him as an adult.