Defendant John Doe, a juvenile entitled to anonymity, appeals from his adjudication as a juvenile delinquent following a non-jury trial. Doe argues that the district court's denial of his request to be proceeded against as an adult violated both his statutory and his constitutional right to a jury trial. We reverse Doe's juvenile delinquency adjudication and remand for a jury trial.

Doe was arraigned on December 20, 1979 on a complaint of juvenile delinquency pursuant to 18 U.S.C. § 5032, based on an underlying charge of illegal entry into the United States under 8 U.S.C. § 1325. On December 21, 1979, the United States filed a juvenile delinquency information accompanied by the required certification as to the unavailability of state jurisdiction.

Doe appeared in district court on January 2, 1980, at which time the court granted a continuance, and again on January 7, 1980, at which time the court set motions for January 14, 1980 and trial for January 15, 1980.

On January 14, 1980, Doe filed a motion to dismiss the juvenile delinquency information because of four alleged violations of the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 ("FJDA").1 Following the district court's denial of this motion, Doe filed a request to be proceeded against as an adult, pursuant to 18 U.S.C. § 5032, and a demand for jury trial. The court denied Doe's request, stating that the election to proceed as an adult had to be made within a reasonable and short period of time after the juvenile's initial appearance in federal district court.

On January 15, 1980, the day of the trial, the United States filed a superseding information which contained an additional charge under 8 U.S.C. § 1325 relating to eluding examination and inspection. Following Doe's denial of juvenile delinquency, the case was tried before the court without a jury. The court adjudged Doe a juvenile delinquent and sentenced him to unsupervised probation for the remainder of his minority.

Under § 5032 of the 1974 amendments to the FJDA, Pub.L.No.93-415, a person under the age of 182 who is not surrendered to state authorities is proceeded against as a juvenile "unless he has requested in writing upon advice of counsel to be proceeded against as an adult . . . ."3 If proceeded against under the FJDA, a juvenile has neither a constitutional right to a jury trial, United States v. Hill, 538 F.2d 1072, 1074-75 (4th Cir. 1976); United States v. Cuomo, 525 F.2d 1285, 1292 (5th Cir. 1976); United States v. Torres, 500 F.2d 944, 946-48 (2d Cir. 1974); United States v. Salcido-Medina, 483 F.2d 162, 164 (9th Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 582, 38 L.Ed.2d 476 (1973); United States v. James, 464 F.2d 1228, 1229-30 (9th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d 675 (1972); see generally McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), nor a statutory right to a jury trial, United States v. Martin-Plascencia, 532 F.2d 1316, 1318 (9th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976); United States v. Cuomo, supra, 525 F.2d at 1292-93; United States v. Doe, 385 F.Supp. 902, 905-07 (D.Ariz.1974). A juvenile who elects to be proceeded against as an adult, however, has a sixth amendment right to a jury trial in any case in which he is charged with an offense punishable by more than six months' imprisonment. See Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). See generally United States v. Duboise, 604 F.2d 648, 652 (10th Cir. 1979); United States v. Hill, supra, 538 F.2d at 1075. Because the maximum penalty under 8 U.S.C. § 1325 is greater than six months, the defendant here would be entitled to a jury trial if tried as an adult for a violation of that provision.

The government recognizes that a juvenile can request to be proceeded against as an adult under 18 U.S.C. § 5032 but argues that the district court properly denied Doe's request on the basis of untimeliness because Doe did not make the request until 27 days after arrest and 1 day prior to trial when he had already appeared in district court on two previous occasions. The government contends that such a request must be made no later than a defendant's first appearance in district court. We disagree.

Section 5032 makes no reference to either the timeliness of a juvenile's request or the court's discretion to grant or deny it. Nonetheless, we agree, with the government and the district court that a juvenile's request must be timely.

Doe's initial appearance to the information was January 2, 1980. On January 7, 1980, Doe's second appearance before the court, the court established a schedule for the filing and hearing of motions for January 14, 1980 and set the trial for January 15. To minimize any disruption to either the court docket or the prosecution's preparation, counsel for the defendant informed the clerk of the court five days before the trial date and within ten days after Doe's initial appearance that defendant intended to file a motion to dismiss the juvenile delinquency information. At the same time, the clerk was notified that if a motion to dismiss was denied, Doe would elect to proceed as an adult. On January 14 the motion to dismiss was heard and denied. Doe requested immediately that he be proceeded against as an adult. The court denied the request, but on the following day the day of trial the court did allow the United States to file a superseding information containing an additional charge.

The trial court's power to administer the court calendar and to control the time and conduct of trial is broad. Scheduling of discovery, motions, and trial must be left to the discretion of trial judges. A trial judge's discretion must be guided by fairness and reason. Under the circumstances of this case we conclude that Doe's counseled written request was timely. It was an abuse of discretion for the trial judge to deny the request. Fairness and reason were not employed.

There is no case law discussing either when a juvenile must make the request under § 5032 to be proceeded against as an adult or the extent of the court's discretion to deny such a request. A complete reading of § 5032, however, sheds some light on these questions. Another clause of § 5032, which appears in the same sentence as the provision in question here, provides for the transfer of a juvenile to adult status upon motion of the Attorney General. That clause expressly gives the district court discretion to grant or deny the motion to transfer and sets forth the factors to be considered in making that determination.4 See United States v. Hayes, 590 F.2d 309 (9th Cir. 1979). The legislative history of section 5032 provides no explanation for Congress's decision not to give the district courts similar discretion with regard to a juvenile's request to be proceeded against as an adult.

Congress's failure to provide the district courts with discretion to grant or deny a juvenile's request suggests that courts should not impose a rigid time requirement for making that request, but, rather, that courts should allow a juvenile a reasonable time prior to trial to request trial as an adult. It was reasonable in this case for Doe to wait to file his request until after he had challenged the juvenile information. If he were required to make his request no later than his first appearance in district court, as the government urges, he would be forced to give up his right to challenge the juvenile information in order to secure a jury trial. The government has not presented us with persuasive reasons for requiring a juvenile to make that choice.

That the government and the courts worked on an expedited basis to culminate motions and trial within 30 days5 does not justify a denial of Doe's request. Doe's right under § 5032 to request trial as an adult does not depend on inconvenience to the government or to the courts. Nor can we see any reason to deny a juvenile's counseled request for a jury trial simply because he has been in a juvenile detention center, instead of an adult facility, for 27 days.6 Because we interpret "proceeded against as an adult" to mean tried as an adult, for purposes of the provision at issue here, see United States v. Duboise, supra, 604 F.2d at 652; United States v. Hayes, supra, 590 F.2d at 310; United States v. Hill, supra, 538 F.2d at 1074, we do not consider Doe's detention as a juvenile to constitute any relinquishment of his right, upon counseled request, to be proceeded against as an adult. Finally, the argument that a juvenile should not be allowed to wait until the day before trial to request to be proceeded against as an adult is meaningless in this case: Because the trial judge set trial for one day after motions, the earliest time after the denial of his motion to dismiss at which Doe could make a request for a jury trial was the day before trial.7

The government's argument that Doe's motion was untimely is seriously undermined by its filing of a superseding information, and Doe's arraignment on that information, on the day of the trial. If the government can file an additional charge on the day of the trial, we cannot consider untimely a defendant's request for a jury trial one day prior to trial.

We note, lastly, that the district court has cited no compelling reason for denying Doe's request. In making that decision, the judge stated, "I'm just not of a mood to give him a jury trial. I don't think he's entitled to one under the law or the facts, either one." The record indicates that the judge assumed, incorrectly, that the statute granted him discretion to deny Doe's request. In light of the absence of any statutorily granted discretion and the judge's failure to provide any more specific or persuasive reasons for denying Doe's request, the court's decision was unjustified.

For the foregoing reasons, we reverse the decision of the district court and remand for jury trial.

I respectfully dissent from the result reached by the majority in this case. Doe wanted heads on both sides of justice. He first sought the benefits of the FJDA on his challenge to the information on grounds which were open only to an accused juvenile delinquent, and then on the eve of an evidentiary hearing by the District Court on the charge of delinquency, he elected "to be proceeded against as an adult . . . ." I cannot read § 5031 as authorizing an alleged juvenile delinquent to "be proceeded against under (the FJDA) . . . ." for some juvenile beneficial reasons and then in midstream request "to be proceeded against as an adult . . . ." with the right of a jury trial. An accused juvenile delinquent should be required, upon advice of counsel, to timely exercise his leave "to be proceeded against as an adult . . . ." before placing any adjudicatory issue before the Court.

I would affirm.