PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4062
JUVENILE MALE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(8:05-cr-00401-DKC-1)
Argued: October 27, 2008
Decided: January 23, 2009
Before KING, Circuit Judge, HAMILTON, Senior Circuit
Judge, and Martin K. REIDINGER, United States District
Judge for the Western District of North Carolina,
sitting by designation.
Affirmed in part and dismissed in part by published opinion.
Judge King wrote the opinion, in which Senior Judge Hamil-
ton and Judge Reidinger joined.
COUNSEL
ARGUED: Carmen D. Hernandez, Washington, D.C., for
Appellant. Jonathan C. Su, OFFICE OF THE UNITED
2 UNITED STATES v. JUVENILE MALE
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Balti-
more, Maryland; James M. Trusty, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
OPINION
KING, Circuit Judge:
By way of this interlocutory appeal, CAM, who was seven-
teen years old when he was charged as a delinquent and
arrested in 2005, seeks relief from the district court’s transfer
order of December 2007, authorizing his prosecution as an
adult in the District of Maryland. See United States v. C.A.M.,
No. 8:05-cr-00401 (D. Md. Dec. 7, 2007) (the "Transfer
Order").1 In his appeal, CAM contends that the charging juve-
nile delinquency information contravenes the Constitution and
is otherwise legally insufficient, that the transfer proceedings
violated his procedural rights under the applicable statutes and
the Constitution, and that the court abused its discretion in
entering the Transfer Order. As explained below, we affirm in
part and dismiss in part.
I.
A.
The Transfer Order was entered by the district court pursu-
ant to the Juvenile Justice and Delinquency Prevention Act
(the "Act"), specifically that part of the Act codified at 18
U.S.C. § 5032 ("§ 5032"). As we have previously recognized,
the primary purpose of the Act is to "‘remove juveniles from
the ordinary criminal process in order to avoid the stigma of
1
The Transfer Order is found at J.A. 7-11. (Citations herein to "J.A.
___" refer to the Joint Appendix filed by the parties in this appeal.)
UNITED STATES v. JUVENILE MALE 3
a prior criminal conviction and to encourage treatment and
rehabilitation.’" United States v. Robinson, 404 F.3d 850, 858
(4th Cir. 2005) (quoting United States v. Brian N., 900 F.2d
218, 220 (10th Cir. 1990)).2 The Act establishes several pro-
cedures for the handling and disposition of juveniles in the
federal system, but does not create a substantive federal juve-
nile offense. See United States v. Allen, 574 F.2d 435, 437
(8th Cir. 1978). Accordingly, a proceeding concerning the
potential transfer of a juvenile to adult prosecution in federal
court addresses only the juvenile’s status; it is not a criminal
proceeding and does not result in an adjudication of guilt or
innocence. See United States v. Juvenile Male # 1, 86 F.3d
1314, 1322-23 (4th Cir. 1996) (recognizing applicability of
preponderance burden of proof in transfer hearing).3 Because
such a proceeding is civil in nature, "[t]he procedures used at
a hearing on the transfer of a juvenile . . . do not need to con-
form to all the requirements of a criminal trial." United States
v. Doe, 871 F.2d 1248, 1255 (5th Cir. 1989). Significantly,
the Federal Rules of Evidence do not generally apply in a
2
The Act defines a "juvenile" as a person who has not attained his eigh-
teenth birthday or who committed an alleged offense prior to his eigh-
teenth birthday, and who has not attained his twenty-first birthday prior to
the filing of the charging information. See 18 U.S.C. § 5031.
3
In considering the prosecution’s burden of proof in a transfer hearing,
we recognized in Juvenile Male # 1 that other courts characterize such
proceedings as civil in nature and thus apply the preponderance burden.
See 86 F.3d at 1322-23 (citing United States v. A.R., 38 F.3d 699, 703 (3d
Cir. 1994); United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992)).
Although our decision in Juvenile Male # 1 did not expressly conclude
that a transfer hearing is civil in nature, we nevertheless recognized that
the government must prove its case for transfer by a preponderance of the
evidence. Similarly, in previously recognizing that a juvenile is not enti-
tled to a jury trial in a delinquency adjudication, we explained that "the
essential nature of the proceeding was the ascertainment of his status as
a juvenile delinquent rather than his conviction as a criminal." United
States v. Hill, 538 F.2d 1072, 1075 (4th Cir. 1976). As such, we agree with
the Third, Sixth, and Eighth Circuits that a transfer hearing is civil in
nature. See United States v. T.F.F., 55 F.3d 1118, 1122 (6th Cir. 1995);
A.R., 38 F.3d at 703; Parker, 956 F.2d at 171.
4 UNITED STATES v. JUVENILE MALE
juvenile transfer proceeding. See United States v. SLW, 406
F.3d 991, 995 (8th Cir. 2005) (comparing transfer proceeding
to preliminary examination in criminal case, in which eviden-
tiary rules are inapplicable); In re A.M., 34 F.3d 153, 161-62
(3d Cir. 1994) (same); Doe, 871 F.2d at 1255 & n.2 (same);
see also Fed. R. Evid. 1101(d)(3).
The Act establishes several procedural hurdles for the
transfer of a juvenile under § 5032. First, the government may
initiate a juvenile proceeding only by the filing of a delin-
quency information, and not by indictment. Second, a United
States Attorney must certify one of three potential jurisdic-
tional bases for proceeding in federal court: (1) that no state
possesses, or is willing to exercise, jurisdiction over the juve-
nile; (2) that the state lacks adequate programs and services
for the juvenile; or (3) that the juvenile has committed a felo-
nious "crime of violence" or drug offense in which there is a
substantial federal interest. See United States v. White, 139
F.3d 998, 1000-01 (4th Cir. 1998).
Third, before a district court may exercise jurisdiction in a
juvenile proceeding, it must satisfy itself that such jurisdiction
has been properly invoked, by "reviewing the stated reasons
underlying the government’s decision to proceed in federal
court." Juvenile Male # 1, 86 F.3d at 1321; see also United
States v. T.M., 413 F.3d 420, 423-34 (4th Cir. 2005) (recog-
nizing subject matter jurisdiction to review "the government’s
assertions in its § 5032 certifications"). In assessing a transfer
motion, however, a court is not required to examine the verac-
ity of the allegations lodged against the juvenile; it is entitled
to accept the prosecution’s allegations as true. See United
States v. Juvenile, 451 F.3d 571, 576 (9th Cir. 2006) (observ-
ing that seven courts of appeals — every "circuit to have con-
sidered the issue" — have "held that a district court may
assume that the juvenile committed the alleged offense for
purposes of transfer proceeding").4
4
There are limited restrictions on what a district court may assume in
addressing a transfer motion. For example, although the court may assume
UNITED STATES v. JUVENILE MALE 5
After confirming its jurisdiction, a district court possesses
the discretion to transfer the juvenile to adult prosecution, but
must first assess the statutory factors specified in the fifth
unnumbered paragraph of § 5032, which are as follows:
the age and social background of the juvenile; the
nature of the alleged offense; the extent and nature
of the juvenile’s prior delinquency record; the juve-
nile’s present intellectual development and psycho-
logical maturity; the nature of past treatment efforts
and the juvenile’s response to such efforts; [and] the
availability of programs designed to treat the juve-
nile’s behavioral problems.
In order to grant a transfer request, the court must conclude
that a transfer order "would be in the interest of justice by a
preponderance of the evidence." Robinson, 404 F.3d at 858.
As we have explained, "[t]he district court may determine
what weight to give the various factors, although, in the
weighing of the various factors, the nature of the crime clearly
predominates." Id. (internal quotation marks omitted). With
this procedural background in mind, we turn to the specifics
of this appeal.
B.
1.
CAM was arrested in Maryland on August 25, 2005,
approximately three months before his eighteenth birthday, on
the basis of a juvenile delinquency information filed one day
earlier by the United States Attorney (the "Initial Informa-
the truth of the government’s allegations, it may not assume the truth of
allegations "beyond the offense or offenses charged." Juvenile, 451 F.3d
at 577. Moreover, if the court harbors doubt, it may factor such doubt into
its analysis. See id.
6 UNITED STATES v. JUVENILE MALE
tion"). The Initial Information charged CAM with delin-
quency on the basis of his involvement in a "conspiracy to
participate in a racketeering enterprise, which would have
been a crime in violation of Title 18, United States Code, Sec-
tion 1962(d), if he had been an adult." Pursuant to § 5032, the
United States Attorney also filed a certification to proceed in
federal court, endeavoring to specify the jurisdictional predi-
cate of the proceeding (the "Certification").
CAM provided authorities with two statements that poten-
tially implicate him as being involved in criminal activity.
CAM made the first statement during an interview with fed-
eral agents on April 7, 2005, months before his arrest. The
second statement was provided on the day of his arrest, after
CAM had signed a written waiver of his Miranda rights. In
the August statement, CAM discussed his involvement with
a gang known as "MS-13." In addition to providing his state-
ment, CAM assisted authorities in locating a firearm that had
been used in a homicide. CAM asserts that the August state-
ment was made during a twelve-hour delay between his arrest
and his initial appearance, and that such delay contravened the
"forthwith" mandate of the Act. See 18 U.S.C. § 5033
("Whenever a juvenile is taken into custody for an alleged act
of juvenile delinquency, . . . [he] shall be taken before a mag-
istrate forthwith."). CAM also maintains that the April and
August statements were taken in violation of his Miranda
rights.5
On June 14, 2006, after weighing the statutory factors of
§ 5032, the district court transferred CAM to adult prosecu-
tion. See United States v. C.A.M., No. 8:05-cr-00401 (D. Md.
June 14, 2006) (the "Initial Transfer").6 Invoking the
5
In an unresolved motion yet pending in the district court, CAM seeks
to suppress his April and August statements, or to have the charging infor-
mation dismissed (the "Suppression Motion"). The Suppression Motion is
found at J.A. 12-15.
6
The Initial Transfer is found at J.A. 16-37.
UNITED STATES v. JUVENILE MALE 7
collateral-order doctrine, CAM immediately appealed to this
Court, and we vacated and remanded. In so doing, we ruled
— primarily predicated on a concession of error by the prose-
cution — that the Initial Information and Certification were
defective in failing to comply with § 5032, by insufficiently
alleging a "crime of violence." See United States v. C.A.M.,
251 F. App’x 194, 195 (4th Cir. 2007). In remanding, we
authorized the United States Attorney to "cure the jurisdic-
tional defect by amending either the information or the certifi-
cation." Id.
2.
On November 19, 2007, in an effort to secure another trans-
fer, the United States Attorney filed the amended delinquency
information underlying this appeal, specifying, inter alia, that
the conspiracy involved violent acts of murder, attempted
murder, kidnapping, and robbery (the "Amended Informa-
tion").7 In support thereof, the Amended Information incorpo-
rated the affidavit of the investigating agent, which had been
filed on August 24, 2005 (the "Affidavit").8 The Affidavit
stated, inter alia, that
• CAM was a member of MS-13 in Prince
George’s County, Maryland, and that the gang
had engaged in a pattern of racketeering activities
which affected interstate commerce;9
• CAM was a passenger in a vehicle when the
driver engaged in a drive-by shooting;
7
The Amended Information is found at J.A. 6.
8
The Affidavit is found at J.A. 41-44. Although the district court had
apparently relied on the Affidavit in making the First Transfer, it was not
referenced when we vacated that ruling and remanded.
9
The Affidavit explained that MS-13 is "a Hispanic street gang with
more than 8,000 members in 27 states and the District of Columbia. The
gang also has more than 20,000 members in foreign countries, particularly
El Salvador." Affidavit 1.
8 UNITED STATES v. JUVENILE MALE
• CAM had participated in an attack on a rival
gang member, where a victim sustained life-
threatening injuries caused by a machete; and
• CAM had participated in "jump ins," where
members of MS-13 initiated new gang members
by beating them for thirteen seconds.
Two weeks later, on December 6, 2007, the district court
issued the Transfer Order now contested on appeal. It therein
observed that neither party had requested the presentation of
further information on the transfer issue, and it adopted and
incorporated the substantive analysis and rulings made in the
Initial Transfer. In weighing the statutory factors of § 5032,
the court, in the Initial Transfer, concluded that CAM’s age
and social background, plus the severity of the alleged
offense, supported his transfer. The court found that CAM’s
lack of a criminal record weighed against a transfer, and con-
cluded that three of the factors — CAM’s intellectual devel-
opment and psychological maturity, his past response to
treatment efforts, and the availability of rehabilitative pro-
grams — were neutral on the transfer issue. Balancing the
§ 5032 factors, the court concluded that CAM’s transfer to
adult prosecution was warranted.
CAM again appealed, contending that the Transfer Order is
defective in multiple respects. His appellate claims fall into
three categories. First, he asserts that the Amended Informa-
tion is constitutionally and otherwise legally insufficient.10
Second, he contends that the transfer proceedings violated the
procedural protections afforded him by the applicable statutes
10
CAM contends that the RICO conspiracy statute cannot — consistent
with the Commerce Clause of the Constitution — criminalize intrastate
noneconomic street gangs; that the Amended Information unconstitution-
ally seeks to criminalize his personal associations, in violation of the First
Amendment; and that the Amended Information is otherwise legally defi-
cient because it fails to allege that the RICO conspiracy offense affected
interstate commerce.
UNITED STATES v. JUVENILE MALE 9
and the Constitution.11 Finally, he maintains that the district
court abused its discretion in entering the Transfer Order.12
CAM asserts that we possess jurisdiction of his appeal under
the collateral-order doctrine. We first address the jurisdic-
tional question, and identify those claims over which we pos-
sess or lack jurisdiction.
II.
A.
On the jurisdictional issue, it is elementary that a court of
appeals may, as a general proposition, only consider appeals
arising from final judgments of the district courts. See 28
U.S.C. § 1291. An exception to this "final-judgment rule,"
however, is the "collateral-order doctrine," which authorizes
a court of appeals to review an interlocutory decision when
three requirements are satisfied. First, the issue sought to be
appealed must conclusively determine the question; second,
the question must constitute an important issue independent of
the merits of the underlying controversy; and third, the issue
must be effectively unreviewable after trial. See Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978); Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).
On the jurisdictional issue, we must consider whether CAM’s
claims individually satisfy the collateral-order doctrine; a
determination that we possess jurisdiction as to certain of his
claims does not extend our jurisdiction to others that are out-
11
In his procedural challenges to the transfer proceedings, CAM makes
three assertions: (1) the proceedings were defective because the prosecu-
tion was barred from amending the Initial Information; (2) the proceedings
violated his statutory and constitutional rights; and (3) the Act does not
authorize a transfer to adult status on a conspiracy charge.
12
CAM contends that, in entering the Transfer Order, the district court
erred in its findings with regard to the statutory factors specified in the
fifth unnumbered paragraph of § 5032. He then contends that the court
abused its discretion in its analysis of those factors and in ultimately enter-
ing the Transfer Order.
10 UNITED STATES v. JUVENILE MALE
side the narrow ambit of that doctrine. See Abney v. United
States, 431 U.S. 651, 663 (1977) (recognizing that additional
"claims are appealable if, and only if, they too fall within
Cohen’s collateral-order exception"); United States v. Black-
well, 900 F.2d 742, 746 (4th Cir. 1990) (same).
B.
1.
In assessing the jurisdictional underpinning of the issues
CAM seeks to pursue, we reach a mixed result. With respect
to CAM’s procedural and substantive challenges to the Trans-
fer Order, our jurisdiction is controlled by seminal collateral-
order doctrine principles and our decision in United States v.
Smith, 851 F.2d 706 (4th Cir. 1988), which was also a juve-
nile proceeding. Smith was initially charged as a juvenile, but
after he turned eighteen the government dismissed its juvenile
charge and indicted him as an adult. See Smith, 851 F.2d at
707-08. After the district court denied Smith’s motion to dis-
miss the indictment, he appealed to this court, maintaining
that the collateral-order doctrine authorized his appeal. Id. at
708. In concluding that we possessed jurisdiction over his
appeal, we explained that the court’s refusal to dismiss the
indictment had "conclusively establishe[d] . . . that [the]
defendant may be tried as an adult and not as a juvenile"; that
the issue was "separate and distinct" from the issue of guilt;
and that declining to hear the appeal would render the issue
"effectively unreviewable on appeal from a final judgment."
Id.
The collateral-order doctrine has been recognized as autho-
rizing interlocutory challenges to juvenile transfer orders and
procedural issues that relate directly to such orders. See
United States v. Angelo D., 88 F.3d 856, 858 (10th Cir. 1996)
("The justifications for allowing the immediate appeal of
transfer orders remain the same regardless of whether the
appeal is based on an alleged procedural or substantive defi-
UNITED STATES v. JUVENILE MALE 11
ciency."). It is not surprising, therefore, that "every circuit that
has addressed the question ha[s] concluded that an order
transferring a juvenile to adult status is immediately appeal-
able under the collateral order doctrine." United States v.
Leon, D.M., 132 F.3d 583, 587 (10th Cir. 1997). Importantly,
the Act was specifically designed to afford those juveniles
charged in federal court with unique procedural protections,
such as anonymity. Furthermore, it has been recognized that
a juvenile may be irreparably injured if he is improperly trans-
ferred to adult status. See Angelo D., 88 F.3d at 858. Pursuant
to these authorities, we possess jurisdiction under the
collateral-order doctrine to consider CAM’s claims of proce-
dural and substantive errors that directly relate to the Transfer
Order.13
2.
Independent of his contentions on the Transfer Order,
CAM also seeks to pursue three challenges to the Amended
Information itself. The first two challenges assert that the
Amended Information contravenes the Constitution, and the
third contends that the Amended Information is otherwise
legally insufficient. More specifically, CAM contends (1) that
the RICO conspiracy offense alleged in the Amended Infor-
mation exceeds the bounds of the Commerce Clause, because
it is predicated solely on non-economic intrastate activity; (2)
that the Amended Information unconstitutionally seeks to
criminalize his personal associations, in violation of the First
Amendment; and (3) that the Amended Information is other-
13
One of CAM’s procedural challenges in this appeal relates to his unre-
solved Suppression Motion, yet pending in the district court. See supra
note 5. We possess jurisdiction over a very limited portion of that chal-
lenge — that for purposes of the transfer issue, the court erred in consider-
ing CAM’s two statements to federal agents without first ruling on the
Suppression Motion — because that aspect of his appeal raises a proce-
dural claim concerning the transfer proceeding. See infra Part III.B.2.b.
We do not, however, possess jurisdiction to consider other issues related
to the Suppression Motion.
12 UNITED STATES v. JUVENILE MALE
wise legally deficient because it fails to allege that the RICO
conspiracy offense substantially affected interstate commerce,
and that, absent such an allegation, the statutorily required
certification of a substantial federal interest is deficient. These
appellate claims present more difficult jurisdictional issues,
because they relate to the propriety of the Amended Informa-
tion itself, rather than the Transfer Order.
CAM seeks to pursue two constitutional challenges to the
Amended Information, that is, that it contravenes the Com-
merce Clause and the First Amendment. Notably, a juvenile
delinquency information functions as an indictment. And, like
an indictment, the Amended Information must be recognized,
"if valid on its face, [as] enough to call for trial of the charges
on the merits." See United States v. Mills, 995 F.2d 480, 487
(4th Cir. 1993) (internal quotation marks omitted). Impor-
tantly, an order declining to dismiss an indictment is generally
not subject to an interlocutory appeal. See Midland Asphalt
Corp. v. United States, 489 U.S. 794, 798-802 (1989) ("Only
a defect so fundamental that it causes . . . the indictment no
longer to be an indictment, gives rise to the constitutional
right not to be tried."). In a significant exception, the Supreme
Court has recognized that the denial of a motion to dismiss an
indictment on double jeopardy grounds is immediately
appealable under the collateral-order doctrine, because such a
claim embraces the right not to be tried at all. See Abney, 431
U.S. at 659; see also United States v. MacDonald, 435 U.S.
850, 860-61 (1978). The constitutional protections relied on
by CAM, however, fail to include any rights — such as dou-
ble jeopardy — that would be irreparably lost if appellate
review awaits the entry of a final judgment. In these circum-
stances, we lack jurisdiction to review CAM’s constitutional
challenges to the Amended Information under the collateral-
order doctrine, and must dismiss them.
We reach a different conclusion, however, with regard to
CAM’s contention that the Amended Information is legally
insufficient for failing to allege a substantial federal interest.
UNITED STATES v. JUVENILE MALE 13
This claim challenges the jurisdictional propriety of the certi-
fication. Because a proper certification, i.e., that the RICO
conspiracy offense affected interstate commerce, is a jurisdic-
tional predicate to a juvenile transfer proceeding, that issue
satisfies the requirements of the collateral-order doctrine and
can thus be reviewed in this appeal. See United States v.
White, 139 F.3d 998, 999-1000 (4th Cir. 1998); United States
v. C.A.M., 251 F. App’x. 194, 195 (4th Cir. 2007).
III.
We turn now to the merits of the appellate contentions over
which we possess jurisdiction: that the Amended Information
is legally insufficient for failing to allege a substantial federal
interest, that the transfer proceedings violated the procedural
protections afforded CAM by the applicable statutes and the
Constitution, and that the district court abused its discretion
in entering the Transfer Order. As a general proposition, we
review for abuse of discretion a district court’s decision to
transfer a juvenile to adult prosecution. See United States v.
Robinson, 404 F.3d 850, 858 (4th Cir. 2005). "An abuse of
discretion occurs if the district court fails to make the required
factual findings, or if those factual findings are clearly errone-
ous." Id. (quoting United States v. Juvenile Male # 1, 47 F.3d
68, 71 (2d Cir. 1995) (internal citations and quotation marks
omitted)). We review de novo the court’s legal rulings, how-
ever — both statutory and constitutional — relating to the
entry of a transfer order. See United States v. Soriano-
Jarquin, 492 F.3d 495, 501-02 (4th Cir. 2007); United States
v. Helem, 186 F.3d 449, 454 (4th Cir. 1999).
A.
First, CAM contends that the Amended Information is
legally insufficient in failing to allege a substantial federal
interest, i.e., that the RICO conspiracy offense affected inter-
state commerce. In assessing whether a "substantial federal
interest" has been properly certified, a court must decide
14 UNITED STATES v. JUVENILE MALE
whether "the crime [is] of a sufficiently serious type that fed-
eral resources should be called upon, without regard to the
State’s willingness or ability to handle the matter." United
States v. Juvenile Male # 1, 86 F.3d 1314, 1320 (4th Cir.
1996). Indeed, "[o]ur prior cases . . . have placed importance
on the severity of the penalty prescribed for the offense and
the sense of urgency by Congress in deciding to federalize the
crime." United States v. T.M., 413 F.3d 420, 426 (4th Cir.
2005). In conducting such an assessment, however, we accord
substantial deference to the United States Attorney. See Juve-
nile Male # 1, 86 F.3d at 1319.
In this situation, the United States Attorney proceeded
under the third prong of the jurisdictional predicate of § 5032,
and certified that CAM had committed a "crime of violence."
In the earlier Certification, filed in August 2005 in connection
with the Initial Transfer, the prosecutor certified that there
was a "substantial federal interest" in pursuing the delin-
quency proceeding against CAM "due to the severe nature of
the underlying acts in furtherance of [the] conspiracy and the
dangerous nature of the alleged enterprise." The Amended
Information plainly alleges that CAM violated the RICO con-
spiracy statute, and the twenty-year statutory maximum pen-
alty for that offense underscores its severity. See T.M., 413
F.3d at 426. Moreover, the fact that "Congress intended RICO
to be a potent tool in halting the infiltration of organized
crime into the American economy," United States v. Baker,
617 F.2d 1060, 1061 (4th Cir. 1980), demonstrates "the sense
of urgency and importance that Congress has placed" on com-
bating criminal organizations, T.M., 413 F.3d at 426-27. In
this context, the prosecution’s allegations — as reflected in
the Amended Information, Certification, and Affidavit —
demonstrate a substantial federal interest and thus satisfy the
mandate of § 5032. CAM’s challenge to the sufficiency of the
government’s certification of a substantial federal interest
thus lacks merit.
UNITED STATES v. JUVENILE MALE 15
B.
Next, CAM raises three procedural challenges to the trans-
fer proceeding. We address these contentions in turn.
1.
In the first of his procedural challenges, CAM asserts that
the Act barred the United States Attorney from amending the
Initial Information (and thereby satisfying § 5032) after our
2007 remand to the district court. In that appeal, we agreed
that the Initial Information was flawed but authorized the
prosecution to amend it. This defect was promptly cured on
remand by the filing of the Amended Information.14 CAM
contends, however, that the Act accords the United States
Attorney with only one opportunity to certify a juvenile for
transfer to adult prosecution. If an initial information is
legally insufficient, according to CAM, the Act bars any sub-
sequent effort to cure the defect.
On its face, § 5032 does not mandate any specific proce-
dure for the required certification. Indeed, as we explained in
the earlier appeal, such a certification may be made in "either
the [juvenile] information or the [formal] certification."
United States v. C.A.M., 251 F. App’x 194, 195 (4th Cir.
2007). Furthermore, the terms of § 5032 fail to support
CAM’s position — § 5032 simply requires the certification of
a "crime of violence" and a "substantial federal interest."
CAM’s contention thus borders on the frivolous, and we will
"refuse[ ] to allow jurisdiction to be defeated by a . . . ministe-
rial act related to the certification requirement of § 5032."
14
In addition to our mandate in the earlier appeal, Federal Rule of Crim-
inal Procedure 7(e) independently authorizes the amendment of an infor-
mation by providing that "[u]nless an additional or different offense is
charged or a substantial right of the defendant is prejudiced, the court may
permit an information to be amended at any time before the verdict or
finding."
16 UNITED STATES v. JUVENILE MALE
United States v. White, 139 F.3d 998, 1001 (4th Cir. 1998)
(internal quotation marks omitted).15
2.
Next, CAM contends that the transfer proceedings violated
his statutory and constitutional rights. More specifically, he
maintains that the transfer proceedings were defective in three
ways: (1) that he was denied his Sixth Amendment right to
confront witnesses when he was not permitted to question the
agent who executed the Affidavit; (2) that the district court
erred in considering CAM’s two statements of April and
August 2005 — allegedly made in contravention of the "forth-
with" requirement of § 5033 and his Miranda rights — for
purposes of the transfer proceeding; and (3) that a psychiatric
evaluation conducted at the court’s direction and used in the
transfer proceedings violated the Fifth Amendment.
a.
First of all, CAM’s challenge that he was not allowed to
cross-examine the agent is simply misplaced, in that a transfer
proceeding is civil in nature. As such, its purpose is not to
incriminate, but to select the proper forum for trial. See
United States v. A.R., 38 F.3d 699, 703-04 (3d Cir. 1994)
("The determination is not one of guilt or innocence, or even
of delinquency or non-delinquency, but rather concerns the
15
This matter is strikingly analogous to White. There, the United States
Attorney initially filed a motion to transfer setting forth the reasons White
should be transferred to adult prosecution, along with White’s juvenile
records. White, 139 F.3d at 999. The prosecutor failed, however, to file a
separate "need certification," that is, a certification that one of the three
§ 5032 jurisdictional predicates was present. Instead, the United States
Attorney provided the necessary support in his motion to transfer, and
filed a formal "need certification" with this Court during the appeal. See
id. at 1001. "[R]efus[ing] to elevate form over substance," we ruled that
§ 5032 had been properly invoked because the necessary allegations were
provided to the court in the motion to transfer. Id. at 1002.
UNITED STATES v. JUVENILE MALE 17
manner in which the state elects to proceed against an alleged
malefactor."). As we have observed, a court assessing a trans-
fer issue is entitled to take the prosecution’s allegations as
true. See United States v. Juvenile, 451 F.3d 571, 576 (9th
Cir. 2006). In this situation, CAM’s inability to challenge
those allegations by cross-examining the agent does not con-
travene the Constitution because "the trial itself functions as
a corrective for any reliance on inaccurate allegations made at
the transfer stage." In re Sealed Case, 893 F.2d 363, 369
(D.C. Cir. 1990).
b.
Next, CAM maintains that the alleged twelve-hour delay
between his arrest and arraignment contravened his § 5033
right to be taken "forthwith" before a magistrate. He claims
that, if the prosecution had adhered to the forthwith mandate,
he would not have made his August 2005 statement or
assisted the authorities. In addition, CAM asserts that he did
not receive the proper Miranda warnings, or waive those
rights, in connection with either his April statement or his
August statement. Accordingly, CAM contends on appeal that
the court erred in considering these statements during the
transfer proceeding.
The Act does not specify any remedy for a violation of its
provisions. The "forthwith" provision of § 5033 was designed
to ensure that juveniles are accorded priority in arraignment
proceedings. See United States v. D.L., 453 F.3d 1115, 1124
(9th Cir. 2006). Although a short delay might be expected, an
unreasonable delay — particularly one designed to obtain
evidence — would appear to contravene § 5033. The prosecu-
tion bears the burden of demonstrating that it complied with
§ 5033. See United States v. Juvenile Male, 528 F.3d 1146,
1161-62 (9th Cir. 2008).
Importantly, the district court, in making the Transfer
Order, relied on CAM’s statements only with respect to the
18 UNITED STATES v. JUVENILE MALE
second § 5032 factor, the nature of the offense. The court also
relied on the United States Attorney’s allegations, which the
court was entitled to accept as true, and the other supporting
evidence presented to the court. Even without CAM’s state-
ments, however, the prosecution’s allegations and other evi-
dence warranted the court’s finding that the nature of the
offense favored CAM’s transfer. As a result, even if the court
somehow erred in considering these statements, no prejudice
could have resulted with respect to its entry of the Transfer
Order.16
c.
Similarly, the psychiatric evaluation of CAM conducted at
the district court’s direction and used in connection with the
transfer proceeding, did not contravene the Fifth Amendment.17
Once again, any statement obtained from CAM during the
evaluation was not used to incriminate him. As we have
observed, the transfer proceedings were civil in nature and
CAM’s Fifth Amendment rights did not attach in such a set-
ting. See A.R., 38 F.3d at 703-04 ("The failure to administer
Miranda warnings to A.R. prior to [statements] did not
deprive him of his right against self-incrimination, because
the use of the [statements] at the transfer hearing did not
incriminate him.").18
16
To the extent CAM contends that his statements of April and August
2005 were obtained by the authorities in violation of his Miranda rights,
we lack jurisdiction to assess such a contention, which is yet pending in
the district court. See supra note 5.
17
CAM also maintains that the district court lacked the authority to
order his psychiatric evaluation. However, 18 U.S.C. § 5037(e) specifi-
cally authorizes "observation and study by an appropriate agency" of an
"alleged or adjudicated delinquent."
18
We observe that the eighth unnumbered paragraph of § 5032 provides
that statements made "during a transfer hearing," are not to "be admissible
at subsequent criminal prosecutions." See A.R., 38 F.3d at 703 & n.5 (cit-
ing § 5032 limitation and observing that psychological reports will not
"bear on the ultimate substantive question of guilt or innocence" and serve
"limited, neutral purpose").
UNITED STATES v. JUVENILE MALE 19
3.
CAM next contends that the Act does not authorize the
transfer of a juvenile on the basis of a conspiracy offense. For
this contention, he relies on decisions suggesting that the gov-
ernment may not prosecute an adult for a conspiracy offense
on the sole basis of his juvenile conduct. See United States v.
Spoone, 741 F.2d 680, 687 (4th Cir. 1984). The Spoone deci-
sion fails to support CAM’s contention, however, because —
unlike Spoone — CAM was first charged as a juvenile. The
Act was designed to permit the transfer of juveniles to adult
prosecution. Where the § 5032 transfer mechanism has been
properly invoked, a juvenile charged with a conspiracy
offense may therefore be transferred to adult prosecution. See
United States v. Thomas, 114 F.3d 228, 263 (D.C. Cir. 1997)
("[T]he [Act] authorizes certain juveniles to be transferred to
adult status where they may be tried for conspiracy crimes in
adult court.").19
C.
Finally, we turn to CAM’s contention that the district court
abused its discretion in entering the Transfer Order. In that
regard, the court concluded, by adopting and incorporating the
substantive analysis of the Initial Transfer, that two of the
§ 5032 factors weighed in favor of CAM’s transfer, one
weighed against such a transfer, and the other three factors
were neutral. As explained below, the court did not abuse its
discretion in entering the Transfer Order.
19
It is noteworthy that our sister circuits have consistently upheld the
transfer to adult prosecution of juveniles charged with conspiracy
offenses. See, e.g., United States v. SLW, 406 F.3d 991, 993 n.3 (8th Cir.
2005); United States v. Ramirez, 297 F.3d 185, 189 (2d Cir. 2002); United
States v. I.D.P., 102 F.3d 507, 508 (11th Cir. 1996).
20 UNITED STATES v. JUVENILE MALE
1.
In analyzing the first factor, the district court concluded
that CAM’s chronological age "favors transfer," and that his
social background "also supports transfer, albeit minimally."
Initial Transfer 9-10. A juvenile’s age toward the higher end
of the spectrum (eighteen), or the lower end (fifteen), is to be
weighed either for or against transfer. Here, we agree that
CAM’s chronological age (seventeen years and nine months)
supports his transfer. With respect to CAM’s social back-
ground, the record is mixed. The district court found that
CAM had been raised in "a loving and intact family," and saw
nothing in his "social background that would suggest to [him]
that gang activity was acceptable behavior." Initial Transfer
11. In contrast to his family situation, however, CAM’s life
outside the home was not stable. He joined MS-13 around the
age of fourteen, and dropped out of school during the ninth
grade when his grades and behavior deteriorated. CAM began
abusing alcohol at the age of fifteen or sixteen and started
using cocaine and marijuana shortly thereafter. Such behavior
indicates a lack of structure and support, and accordingly
weighs against his transfer. In these circumstances, the district
court did not clearly err in concluding that CAM’s social
background "minimally" favored his transfer to adult prosecu-
tion.
After considering the second factor, the court found that the
"nature of the alleged offense strongly supports [CAM’s]
transfer." Initial Transfer 14. CAM allegedly participated in a
criminal organization that had been involved in repeated acts
of violence. And, in weighing the statutory factors, the nature
of the offense is significant. See Robinson, 404 F.3d at 859.
Accordingly, the court’s conclusion that this factor weighed
heavily in favor of transfer was not clearly erroneous.
With respect to the third factor, CAM has no prior criminal
record. The district court thus concluded that such a clean
record weighed against his transfer to adult prosecution. CAM
UNITED STATES v. JUVENILE MALE 21
does not take issue with this conclusion, and the court did not
err in this respect.
On the fourth § 5032 factor, the district court found that
CAM’s intellectual development and psychological maturity
constituted a neutral factor. Two psychiatric evaluations show
CAM to be in the "low-average range" of intellectual devel-
opment. CAM’s intellectual development at school was ham-
pered by the fact that English is his second language and his
parents have limited education. His abuse of drugs demon-
strated a low psychological maturity, but such abuse is offset
by the responsibility he accepted at home. Although some of
CAM’s conduct indicated immaturity, the court recognized
that he had shown glimpses of maturity. In such circum-
stances, the court’s decision to treat this factor as neutral was
not clearly erroneous.
Regarding the fifth factor, the district court concluded that
an analysis of past efforts to treat CAM was also neutral. This
assessment was predicated primarily on the fact that he had
not been enrolled in any formal treatment program. Finally, in
disposing of the sixth factor, the court compared the treatment
programs at federal juvenile facilities to those maintained by
Maryland. It determined this factor to be neutral, because
those jurisdictions make similar substance-abuse and gang-
counseling programs available. Put simply, the court did not
clearly err in determining these final factors to be neutral.
2.
After analyzing these statutory factors, the district court
concluded that "the safety of the community requires that
CAM be transferred to adult criminal prosecution." Initial
Transfer 21. Having separately reviewed the court’s findings
on the statutory factors for clear error, we examine its ulti-
mate transfer ruling for abuse of discretion. See Robinson,
404 F.3d at 858. In so doing, we conclude that the court
appropriately evaluated and weighed those factors. As a
22 UNITED STATES v. JUVENILE MALE
result, it did not abuse its discretion in entering the Transfer
Order.
IV.
Pursuant to the foregoing, we affirm the Transfer Order and
dismiss the challenges to the Amended Information over
which we lack jurisdiction.
AFFIRMED IN PART AND
DISMISSED IN PART