"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. Sec. 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. Thus, you may proceed with criminal prosecution against the subjects Hunt and Williams." (Ex. 2)

At the July 9 hearing Tamres testified on direct examination:

"Q. And in the course of conferring with defense counsel, did you have occasion to discuss with them the applicability of the juvenile delinquency statutes?

"A. I can't place the time or date but I do recall that we did have that discussion with regard to Mr. Williams and with regard to the co-defendant, Mr. Pecheco, who was also underage.

"Q. Did you obtain in these conferences an indication from the defense concerning whether the defendants, and particularly the defendant Williams, would or would not consent to be treated as a juvenile delinquent and proceeded against in that fashion?

"A. At the time, there was a very strong indication that neither of them would wish to proceed as juvenile delinquents.

"Q. Are you stating, then, that there was refusal of consent to be treated as a juvenile delinquent by Mr. Williams?

"A. Transmitted through a third party, his counsel. I don't recall speaking in the presence of his counsel with Mr. Williams directly, but I do recall there was that transmittal.

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"The Court: Did the lawyer tell you why he didn't want to be proceeded against as a juvenile?

"The Witness: To the best of my recollection, yes, he did tell me why Mr. Williams and Mr. Pecheco both were of one mind, apparently."The Court: What did they say?

"The Witness: That they felt that if they went to trial, that they could beat the charges.

"The Court: Oh. I thought it had something to do with the belief at that time that a juvenile was not entitled to a trial by jury.

"The Witness: I don't recall * * * any conversation about that.

"The Court: Which understanding has, of course, been cancelled recently." (T-J 12-13)

On cross-examination Tamres testified in part:

"Q. Now, with regard to Government's Exhibit No. 2, * * * that is a response to the letter which you had written about a month prior thereto, * * * you will note in it that there was a suggestion made that you appropriately protect the record by making a record of the refusal of the subjects to accept juvenile procedure. Did you at any time in this Court or in the District Court at the time that this matter came on before the Court ever make such a record to indicate, on the record, that this defendant had refused such treatment?

"A. No. I don't recollect that I did.3

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"Q. And do you know of any occasion when the advantages of the treatment under the Juvenile Delinquency Act were discussed with this defendant in your presence?

"A. No." (T-J 14-15)

Tamres testified further that following the arraignment on July 2, 1968 appellant's parents approached him and he informed them that the juvenile delinquency statutes were applicable in their son's case. This was denied by appellant's parents. With respect to this conversation, we accept the finding of the district court:

"During the arraignment the defendant's parents identified themselves. After the arraignment the parents approached the Assistant United States Attorney Herbert Tamres and inquired as to what could be done for their son. Mr. Tamres advised them that, since Williams was underage, they should give some consideration to discussing juvenile delinquency status and procedure for him."4

Appellant testified that his trial counsel did not at any time discuss with him possible treatment under the Juvenile Delinquency Act, he did not at any time refuse to sign a consent, and he first learned of the provisions of the Juvenile Delinquency Act from Mr. Sparrow, who was substituted as his counsel after the trial. He admitted on cross-examination that he was aware of the juvenile delinquency statutes in the state court and had been proceeded against as a juvenile in state court.5

As noted supra, Simon Chrein, who represented appellant from arraignment through trial, did not testify at either hearing. At the hearing on July 9, 1971 there was some discussion between the court and counsel relative to the use of the Legal Aid Society file and calling Mr. Chrein as a witness. After conferring with appellant, his counsel informed the court that appellant "authorized me to indicate to the Court that he will waive the lawyer-client privilege" and that anything contained in the file of the Legal Aid Society "may be submitted as evidentiary matter in this case." Counsel for the Government stated that Mr. Chrein would not be available for another week. He indicated that he had talked with Mr. Chrein and felt very strongly that Chrein's "testimony would be desirable in any event."6 (T-J 44-45)

At the adjourned hearing on September 8, 1971 the Government was represented by other counsel. The following is the only reference to the failure to call Chrein as a witness:

"Mr. Sparrow (counsel for appellant): * * *

"I think your Honor will recall that at the conclusion of the hearing of July 9th we consented to a waiver of the lawyer-client privilege between the defendant and Mr. Chrein as to anything that might appear in the Legal Aid file to indicate there was any discussion or any other advice pertaining to the Juvenile Delinquency Act.

"I understood there was a possibility that Mr. Chrein would be called so we might interrogate him, but we have no other witnesses.

"The Court: Did you call him?

"Mr. Sparrow: No, I did not.

"The Court: Did you call Mr. Chrein?

"Mr. Friedman: (counsel for the Government): No, your Honor. He is available.

"The Court: Anything further?

"Mr. Friedman: I would like to state that the Government's position is that the court did have jurisdiction because there was no consent found in the file and in order for one to benefit under the Juvenile Delinquency Act there must be a consent and there was no consent." (T-S 12)

It is true of course that appellant did not consent, pursuant to section 5033, to proceeding under the Juvenile Delinquency Act. This is not in itself, however, proof that he knowingly refused to consent. It is unfortunate that Chrein was not called as a witness by one of the parties, or by the court when neither party called him. He was the one person aside from appellant himself who could give direct testimony on the crucial question of whether appellant was properly advised of his rights under the Juvenile Delinquency Act. It may be, as counsel for the Government suggested at oral argument, that Chrein may not have recalled just what was said. Under all the circumstances we do not deem it proper to draw an inference against either party for failing to call Chrein to testify at the adjourned hearing.

In any event, there is no direct evidence that Chrein explained the provisions of the Juvenile Delinquency Act to appellant or that appellant knowingly refused to consent to proceedings under the Act. This may not be established by Tamres' hearsay and somewhat conclusory testimony with respect to his conversations with appellant's counsel.

On March 5, 1968 a three-judge court decided Nieves v. United States, 280 F. Supp. 994 (S.D.N.Y.), in which it was held that the Juvenile Delinquency Act was unconstitutional to the extent that it required a juvenile defendant to waive his right to jury trial in order to be proceeded against under the Act.7 No appeal was taken and since that decision it has been the practice in this circuit to accord a juvenile a jury trial if he desires it. This was expressly recognized by the court at the hearing on February 9, 1970 involving one of the other defendants, the court stating to counsel that the defendant "would be entitled to a jury trial on the juvenile delinquency charge if he demanded it." (T 12) It is clear accordingly that if appellant had been properly advised of his rights he would have known that he would be entitled to a jury trial even though proceeded against as a juvenile delinquent.

There is no evidence that the effect of the Nieves decision was brought to appellant's attention; nor can it be determined from the evidence whether his counsel was aware of the decision. The conversations between Tamres and appellant's counsel took place between July, 1968 and January, 1969. Tamres testified that he had been informed by appellant's counsel that appellant felt that if he went to trial he "could beat the charges." Tamres did not recall any conversation relating to the "belief at that time that a juvenile was not entitled to a trial by jury", which, as the court pointed out, had "been cancelled recently."

Under section 5033 a juvenile consenting to proceeding under the Act would waive indictment and a jury trial. This would present a possible advantage to prosecution as an adult. But under Nieves, and the practice followed at the time of appellant's trial, he would have been entitled to a jury trial even though he consented to proceedings under the Act. In other words, he had everything to gain and little, if anything, to lose, by executing a consent. We are not aware of any rights which he would have waived by consenting to juvenile treatment, nor has the Government suggested any possible advantage to appellant through his prosecution as an adult.

On the other hand, there would have been substantial benefits to treatment under the Act. Appellant would have been adjudicated a juvenile delinquent and would not have a criminal record. He would not lose his civil rights. He could not be committed "for a period exceeding his minority or the term which might have been imposed had he been tried and convicted of the alleged violation for which he was determined delinquent, whichever occurs first." 18 U.S. C. Sec. 5034. The cases where a juvenile would knowingly have refused consent had he been fully informed concerning his rights and the consequences of his decision must be rare indeed.

As noted, supra, there is no statutory requirement that a juvenile be apprised of his rights except when he executes a written consent to procedure under the Act. We reject the suggestion that the failure of the commissioner or court to apprise appellant of his rights invalidated the proceedings. We do hold that the evidence is insufficient to sustain a finding that appellant knowingly refused to consent to juvenile treatment.

We hold further that in the future a juvenile, as defined by the Act, should be informed by the magistrate or court at the time of arraignment of his right to be proceeded against as a juvenile and all of the consequences of his decision, and that a written statement should be taken if he refuses to consent. This is in accord with the practice recommended by the Federal Judicial Center. Counsel for the Government in oral argument indicated that it is now generally followed in the Eastern District of New York.8

It is almost two years since appellant's conviction. He received the jury trial to which he was entitled. We conclude that the judgment of conviction should be reversed and the indictment expunged from the records. However, since the criminal process employed against the appellant did not prejudice his right to a fair determination of his guilt, and the guilt determining process was the same as if he had elected juvenile treatment, the proper course is to remand this case to the district court for resentencing pursuant to the provisions of the Juvenile Delinquency Act.

Reversed and remanded for resentencing.