United States v. A.

F I L E D
United States Court of Appeals
Tenth Circuit

February 3, 2006
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 04-2284
DAVID A., a juvenile,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. Nos. 04-CR-1325 RB and 04-CR-2116 RB)

James E. Bierly, Albuquerque, New Mexico, for Defendant-Appellant David A.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with her on the brief), Las Cruces, New Mexico, for
Plaintiff-Appellee United States of America.

Before EBEL, HENRY and McCONNELL, Circuit Judges.

EBEL, Circuit Judge.

The Federal Juvenile Delinquency Act (“FJDA”), 18 U.S.C. §§ 5031-5042,

requires that a juvenile who has been charged with a crime occurring after his

sixteenth birthday and who “has previously been found guilty of an act which if
committed by an adult” would fall within a specific category of offenses, must be

transferred to the district court to be tried as an adult. 18 U.S.C. § 5032. In this

appeal, we consider the proper procedures applicable to such a mandatory transfer

under § 5032. We conclude that 1) the Government’s filing a transfer motion

tolls the juvenile’s thirty-day speedy trial rights provided under 18 U.S.C. § 5036;

2) the Government’s good faith search for the juvenile’s records in this case

satisfied § 5032’s requirement that “[a] juvenile shall not be transferred to adult

prosecution . . . until any prior juvenile records of such juvenile have been

received by the court;” 3) a juvenile’s prior juvenile delinquency adjudication

meets § 5032’s requirement that the juvenile have been previously “found guilty

of an act which if committed by an adult would have been one of the offenses set

forth” by the statute; and 4) the Government met its burden in this case of

establishing by a preponderance of the evidence that the juvenile had a prior

juvenile delinquency adjudication by submitting certified documents stemming

from that delinquency adjudication, where the juvenile failed to assert any

evidence contradicting those certified documents.

I. Procedural background

On July 12, 2004, the United States charged then sixteen-year-old David A.

by criminal information with “knowingly violat[ing] the Federal Juvenile

Delinquency Act [by] unlawfully, knowingly and intentionally distribut[ing] 50

2
grams or more of methamphetamine,” contrary to 18 U.S.C. § 2 and 21 U.S.C.

§ 841(a)(1) and (b)(1)(A). 1 The Government also certified its intent to proceed

against David A. in federal court. 2 Federal authorities took David A. into custody

1
21 U.S.C. § 841(a)(1) provides that “it shall be unlawful for any
person knowingly or intentionally . . . to manufacture, distribute, or possess with
intent to manufacture, distribute, or dispense, a controlled substance.” And 21
U.S.C. § 841(b)(1)(A)(viii) provides, in pertinent part, that “[i]n the case of a
violation of subsection (a) of this section involving . . . 50 grams or more of
methamphetamine . . . such person shall be sentenced to a term of imprisonment
which may not be less than 10 years or more than life.”

Further, 18 U.S.C. § 2 provides

(a) Whoever commits an offense against the United States or aids,
abets, commands, induces or procures its commission, is punishable as
a principal.

(b) Whoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the United
States, is punishable as a principal.
2
Section 5032 provides that

[a] juvenile alleged to have committed an act of juvenile delinquency,
other than a violation of law committed within the special maritime and
territorial jurisdiction of the United States for which the maximum
authorized term of imprisonment does not exceed six months, shall not
be proceeded against in any court of the United States unless the
Attorney General, after investigation, certifies to the appropriate district
court of the United States that (1) the juvenile court or other appropriate
court of a State does not have jurisdiction or refuses to assume
jurisdiction over said juvenile with respect to such alleged act of
juvenile delinquency, (2) the State does not have available programs
and services adequate for the needs of juveniles, or (3) the offense
charged is a crime of violence that is a felony or an offense described
in . . . 21 U.S.C. § 841 . . . , and that there is a substantial Federal
(continued...)

3
the next day, July 13, 2004.

On July 26, 2004, the Government filed a motion to proceed against David

A. as an adult. In that motion, the Government asserted that the FJDA, see 18

U.S.C. § 5032, mandated transferring David A. to the United States district court

to be tried as an adult because he was charged with a drug trafficking offense

allegedly committed after he had turned sixteen years of age, and New Mexico

had previously adjudicated David A. a juvenile delinquent based upon an earlier

residential burglary charge. The district court conducted a hearing on that

transfer motion on August 25, 2004, but postponed that hearing after discovering

that David A.’s parents were not given notice of the hearing. The district court

continued the hearing until October 18, 2004. At the conclusion of the October

18 hearing, the district court granted the Government’s motion to transfer David

A. to the district court to be tried as an adult. David A. timely appeals from that

transfer.

II. Appellate jurisdiction.

It is clear that this court has appellate jurisdiction to consider this appeal

because “an order transferring a juvenile to be tried as an adult is immediately

appealable under the collateral order doctrine. . . . Cohen v. Beneficial Indus.

2
(...continued)
interest in the case or the offense to warrant the exercise of Federal
jurisdiction.

4
Loan Corp., 337 U.S. 541 . . . (1949).” United States v. Angelo D., 88 F.3d 856,

858 (10th Cir. 1996).

The legal and practical benefits of being tried as a juvenile–which
include pretrial detention in a foster home or community-based facility
near the juvenile’s home instead of an adult prison, see 18 U.S.C. §
5035, and the sealing of the records and the withholding of the
juvenile’s name and picture from the media, see 18 U.S.C.
§ 5038–would be destroyed if the defendant were forced to wait until
after trial and a final judgment in order to appeal. Our belief that an
appeal from a final judgment would do little to resurrect the special
protections afforded juvenile defendants leads us to join our sister
circuits in concluding that an order transferring a juvenile to adult
status is immediately appealable under the collateral order doctrine.

Id. (citations omitted).

In this case, however, one of the bases on which David A. challenges his

transfer is that the Government violated David A.’s speedy trial rights guaranteed

under 18 U.S.C. § 5036. The Ninth Circuit has held that, while the district

court’s transfer decision is itself immediately appealable, an appeal challenging

the district court’s refusal to dismiss a juvenile claim for a speedy trial violation

under 18 U.S.C. § 5036 is not. See United States v. Brandon P., 387 F.3d 969,

972-74 (9th Cir. 2004), cert. denied, 125 S. Ct. 2936 (2005).

This case, however, is distinguishable from Brandon P. because David A.

never moved to have the charge against him dismissed based upon the alleged

violation of his § 5306 speedy trial rights. Rather, he relies upon the district

court’s delay in deciding the transfer motion as one ground precluding his transfer

5
to be tried as an adult. And, as explained above, the district court’s decision to

transfer David A. to district court to be tried as an adult is immediately

appealable.

Moreover, we agree with the Sixth Circuit that a circuit court does have

jurisdiction to consider an interlocutory appeal involving a juvenile’s speedy trial

rights under § 5036. See United States v. A.R., 203 F.3d 955, 962-63 & 963 n. 6

(6th Cir. 2000) (limiting its holding “to speedy trial claims filed after the district

court has issued a transfer order”).

A speedy trial claim following a transfer order in the juvenile context
implicates the very concern which allows us to hear appeals on the
merits of transfer orders under the collateral order doctrine–namely,
if [juvenile] defendants . . . have to wait until after trial and a final
judgment to appeal the claim, the adult trial would have already
sacrificed the “legal and practical benefits of being tried as a
juvenile.”

Id. at 963 (quoting Angelo D., 88 F.3d at 858 (further quotation omitted)); see

also United States v. Doe, 49 F.3d 859, 864-65 (2d Cir. 1995) (addressing

juvenile’s speedy trial rights in interlocutory appeal from decision to transfer

juvenile to be tried as adult). For these reasons, we are satisfied we have

appellate jurisdiction to consider David A.’s interlocutory appeal.

III. Issues

David A. asserts four reasons why the district court erred in transferring

him to district court to be tried as an adult: 1) the district court delayed in

6
granting the Government’s motion to transfer David A. to be tried as an adult,

violating his speedy trial rights provided under 18 U.S.C. § 5036; 2) the

Government failed to comply with 18 U.S.C. § 5032’s requirement that the

district court, before transferring a juvenile, have all the juvenile’s records before

it; 3) mandatory transfer under § 5032 was not appropriate in this case because

David A. was not “found guilty” of any offense in the prior state-court

proceeding, but was instead only adjudicated a delinquent; and 4) the Government

failed to meet its burden of proving that the David A. charged in these federal

proceedings is the same juvenile that was adjudged delinquent in the earlier New

Mexico proceeding. For the following reasons, we reject David A.’s arguments

and AFFIRM the district court’s decision to transfer David A. to the district court

to be tried as an adult.

A. 18 U.S.C. § 5036’s speedy trial rights

Title 18, U.S.C. § 5036 requires that

[i]f an alleged delinquent who is in detention pending trial is not
brought to trial within thirty days from the date upon which such
detention was begun, the information shall be dismissed on motion of
the alleged delinquent or at the direction of the court, unless the
Attorney General shows that additional delay was caused by the
juvenile and his counsel, or consented to by the juvenile and his
counsel, or would be in the interest of justice in the particular case.
Delays attributable solely to court calendar congestion may not be
considered in the interest of justice. Except in extraordinary
circumstances, an information dismissed under this section may not
be reinstituted.

7
 Section 5036’s speedy trial period begins to run from the date the

Government took David A. into custody, on July 13, 2004. See United States v.

Female Juvenile, A.F.S., 377 F.3d 27, 34 (1st Cir. 2004) (noting § 5036’s

“thirty-day time limitation . . . begins to run when the juvenile is taken into

federal custody pending trial on federal delinquency charges”); United States v.

Doe, 366 F.3d 1069, 1070, 1074 (9th Cir. 2004) (same) (reh’g en banc); see also

United States v. Doe, 642 F.2d 1206, 1208 (10th Cir. 1981). Thirty days from

that date would have been August 12, 2004. The Government, however, filed its

transfer motion on July 26, 2004, thirteen days after taking David A. into custody.

The district court held the first transfer hearing on August 24, but continued that

hearing after discovering that David A’s parents had never received notice of the

hearing. The district court conducted a second hearing on October 18, 2004,

verbally granted the transfer motion that day, and then filed a written order the

next day, on October 19, 2004, approximately ninety-nine days after David A. was

taken into custody.

On appeal, David A. argues both that the district court violated 18 U.S.C.

§ 5036 by not either trying him or transferring him within thirty days of when his

federal detention began; and that the eighty-four-day delay—July 26 to October

19—in resolving the transfer motion was unreasonable. The district court held

both that the Government’s filing its motion to transfer David A. to district court

8
to be tried as an adult tolled § 5036’s thirty-day time limit, and that the delay in

resolving that transfer motion was not unreasonable. We agree with the district

court’s conclusions on both points.

1. Government’s motion to transfer tolled § 5036’s thirty-day
time period

This court will “consider de novo the legal question of whether [a

juvenile’s] detention . . . exceeded the thirty-day period permitted under the

FJDA’s speedy trial provision.” Female Juvenile, A.F.S., 377 F.3d at 33; see also

United States v. Sealed Juvenile 1, 192 F.3d 488, 490 (5th Cir. 1999); United

States v. Eric B., 86 F.3d 869, 872 (9th Cir. 1996); United States v. Juvenile

Male, 74 F.3d 526, 528 (4th Cir. 1996); cf. Doe, 49 F.3d at 865 (reviewing for an

abuse of discretion whether delay beyond § 5036’s thirty-day limit was excusable

in the “interest of justice”). We will review any underlying factual findings only

for clear error. See Sealed Juvenile 1, 192 F.3d at 490. In addition, we review

the district court’s interpretation of § 5036 de novo. See Angelo D., 88 F.3d at

859.

We agree with the district court that the Government’s filing its transfer

motion tolled § 5036’s thirty-day speedy trial period. Every circuit that has

addressed the issue has reached this same conclusion. See A.R., 203 F.3d at 964

(6th Cir. 2000); Sealed Juvenile 1, 192 F.3d at 491-92 (5th Cir. 1999); United

States v. Wong, 40 F.3d 1347, 1371 (2d Cir. 1994); United States v. Romulus,

9
949 F.2d 713, 716 (4th Cir. 1991). Such tolling falls under § 5036’s language

permitting delay that would be “in the interests of justice.” A.R., 203 F.3d at

964; Romulus, 949 F.2d at 716; see also Sealed Juvenile 1, 192 F.3d at 491-92;

Wong, 40 F.3d at 1371. Further, tolling § 5036’s thirty-day time frame for a

transfer motion “is consistent with . . . circuits’ willingness to grant such

[interest-of-justice] exceptions [to the speedy trial requirement] liberally.” A.R.,

203 F.3d at 964. We agree with this reasoning and, therefore, hold that the

Government’s filing a transfer motion will toll § 5036’s thirty-day speedy trial

period. Once the district court granted the transfer motion in this case, § 5036’s

time limits were no longer applicable because the juvenile was no longer “an

alleged delinquent . . . in detention pending trial.” See Romulus, 949 F.2d at 716

(alteration in original).

Moreover, there is no suggestion in the record that the Government in this

case acted in bad faith or for the purpose of delay by waiting thirteen days after it

took David A. into custody before filing its transfer motion. See Sealed Juvenile

1, 192 F.3d at 491-92 (noting the “fact that the government waited 23 days after

the defendant’s arrest and detention to file its motion to transfer does give us

some pause,” but further noting that “defendant did not claim . . . that the

government was [acting] in bad faith or filed the transfer motion as a mere

dilatory tactic”and the record did “not reveal such”); Wong, 40 F.3d at 1370-71

10
(holding there was no speedy trial problem where the government filed a transfer

motion on the twenty-ninth day of § 5036’s thirty-day speedy trial period; the

district court noted there was no suggestion that the government did not make the

transfer motion in good faith and found that “the government had proceeded in a

reasonably expeditious manner and had presented a serious motion to transfer”)

(quotation omitted).

2. Delay in resolving the transfer motion

Once the Government has tolled the § 5036 thirty-day time frame by filing

its transfer motion, “there is no requirement that a court must make its transfer

determination within thirty days of the motion’s filing.” A.R., 203 F.3d at 964;

cf. Wong, 40 F.3d at 1371 (in calculating time under § 5036, court excluded the

forty-three days that elapsed between Government’s filing its transfer motion and

the district court’s resolving that motion “as in the interest of justice”).

Nonetheless, “[t]he administration of juvenile justice in an expeditious manner is

a paramount interest under the speedy trial provision.” Sealed Juvenile 1, 192

F.3d at 491-92. David A. argues that the district court’s eighty-four-day delay in

resolving the Government’s transfer motion in this case was unreasonable. We

disagree.

11
 The district court conducted an initial hearing on the transfer motion on

August 25, 2004. 3 The district court had to continue that hearing, however,

because David A.’s parents had not received notice of the hearing as 18 U.S.C.

§ 5032 requires. 4 At that time, David A.’s father was a fugitive thought to be in

Mexico and his mother had been a fugitive, having been arrested less than a week

before David A.’s initial transfer hearing. Further, there is no indication in the

record that there was a guardian or custodian other than his parents who would

have been responsible for David A. During the August 25 hearing, therefore, the

district court continued the transfer hearing to a later date and directed the

Government to take reasonable efforts to notify David A.’s parents of that

hearing. The Government did give David A’s mother notice of the next hearing,

and also tried to notify his father. In addition, the Government sent notice of the

hearing to David A.’s brother, uncle and aunt. The district court conducted the

second transfer hearing on October 18, 2004. At that hearing, the district court

verbally granted the transfer motion and then entered a written order the next day.

3
David A. does not expressly challenge the one-month delay in
scheduling the first transfer hearing.
4
Section 5032 provides that “[r]easonable notice of the transfer
hearing shall be given to the juvenile, his parents, guardian, or custodian and to
his counsel.” 18 U.S.C. § 5032. The Government argues that § 5032 does not
specify whether or not it is the Government who must give this notice. We need
not decide that issue in this case, however, because even assuming it was the
Government’s duty to give this notice, the Government reasonably attempted to
do so under the facts of this case.

12
 In light of the facts of this case, we cannot say that the eighty-four days it

took the district court to resolve the Government’s transfer motion was

unreasonable, although we acknowledge it is probably at the outer limits of an

acceptable time frame. 5 Cf. Sealed Juvenile 1, 192 F.3d at 490-91 (noting district

court resolved transfer motion in nineteen days); Wong, 40 F.3d at 1371 (noting

district court took forty-three days to resolve transfer motion); Romulus, 949 F.2d

at 716 (noting district court took nineteen days to resolve transfer motion); cf.

A.R., 203 F.3d at 957, 962 (noting district court held transfer hearing fifty-five

days after juvenile was first detained in federal custody).

3. Conclusion.

For these reasons, we conclude that any delay in the district court’s

resolving the Government’s motion to transfer David A. to district court to be

5
The Government was able to notify David A.’s mother, brother, aunt
and uncle by September 10, 2004. The trial judge, however, was unavailable to
conduct a hearing during the week of September 20, 2004. And the prosecutor
was apparently unavailable for a transfer hearing from September 27 through
October 1, 2004. The district court further acknowledged that the court had
several trials scheduled beginning the last week of September 2004. However,
while § 5036 provides that “[d]elays attributable solely to court calendar
congestion may not be considered in the interests of justice” sufficient to excuse
counting the time against § 5036’s thirty-day time period, that time period had
already been tolled by the Government’s filing its transfer motion. And we
cannot say that these reasons, which added to the delay in the district court
scheduling the second transfer hearing, were unreasonable under the
circumstances of this case.

13
tried as an adult did not preclude the district court from granting that transfer

motion.

B. Search for juvenile’s records

David A. next argues that the Government failed to conduct an adequate

search for his juvenile records. Title 18, U.S.C. § 5032 provides that

[a] juvenile shall not be transferred to adult prosecution . . . until any
prior juvenile court records of such juvenile have been received by
the court, or the clerk of the juvenile court has certified in writing
that the juvenile has no prior record, or that the juvenile’s record is
unavailable and why it is unavailable.

We interpret § 5032’s requirements de novo, see Angelo D., 88 F.3d at 859, and

conclude that the Government complied with § 5032’s records provision.

In this case, the Government submitted to the district court David A.’s

juvenile records from the Artesia Children’s Court in Eddy County, New Mexico,

indicating, among other things, that David A. had been adjudicated delinquent in

that court on May 6, 2002, based upon a charge of residential burglary. In

addition, the federal district court clerk in New Mexico certified that that court

did not have any records pertaining to David. A. The prosecutor further asserted

that the Government, in gathering David A.’s juvenile records, had also reviewed

the National Crime Information Center (“NCIC”) report for David A., which did

not indicate that he had been arrested for any offenses other than those already

reported to the district court. In addition, the prosecutor asserted that the

14
Government had checked the counties where David A. lived and where the

alleged federal criminal charge occurred. David A. does not contend that the

Government possesses records that it has not submitted to the district court; nor is

there any suggestion that there are other records that the Government has failed to

locate.

David A. nevertheless argued to the district court that there was still

nothing in the record “indicating that this is his juvenile record in its entirety.” 6

He thus claims that the government failed in its obligation to find and supply

copies of all documents that are part of his juvenile record. We disagree.

We begin with the statutory language, which requires that, as a prerequisite

to transferring a juvenile to adult prosecution, “any prior juvenile court records of

such juvenile have been received by the court.” 18 U.S.C. § 5032. The statute

does not explicitly impose any obligations on the prosecution to search for

records, but requires only that “any” such records be “received by” the court.

This Court and other courts have nonetheless interpreted the statute as containing

an implied obligation on the prosecution to undertake a good faith effort to locate

and provide all relevant records. As this duty is merely implied from the statutory

provision, however, it extends no further than is reasonably necessary to achieve

6
David A. also argued that § 5032 actually required the district court,
rather than the Government, to formally request David A.’s records from other
courts. He does not, however, reassert that argument on appeal.

15
the purposes of the statute. Where, as here, the prosecution has undertaken a

good faith search for the juvenile’s records, it would be unreasonable to hold that

its obligations were not satisfied unless it checked every juvenile court record in

the country, including those with no connection to David A.

In Brian N., 900 F.2d 218, this court addressed this same statutory language

in a slightly different context in an earlier version of § 5032. Unlike the current

version of § 5032, which provides that the district court cannot transfer a juvenile

to be tried as an adult until the court receives his juvenile records, the version of

§ 5032 at issue in Brian N. required that

“[a]ny proceedings against a juvenile under this chapter or as an
adult shall not be commenced until any prior juvenile court records
of such juvenile have been received by the court, or the clerk of the
juvenile court has certified in writing that the juvenile has no prior
record, or that the juvenile’s record is unavailable and why it is
unavailable.”

900 F.3d at 220-21 (quoting 18 U.S.C. § 5032 (1988) (subsequently revised in

1994)). In Brian N., the Government asserted, among other arguments, that this

language was “ambiguous because there is no definition of juvenile court

records.” Id. at 222. This court rejected that argument, holding that this

language in . . . section 5032 unambiguously states that any prior
juvenile court records are to be filed. This includes municipal,
county, state, federal, as well as tribal court records. The
government complains that it would have to search each New Mexico
judicial district as well as other state jurisdictions before it could file
under this statute. [But] [t]his argument is an attack on Congress’s
decision to place these burdens on the government in juvenile cases.

16
Brian N., 900 F.2d at 222. In Brian N., however, the Government had failed to

submit to the district court juvenile records that “the government was aware of”

and whose contents “probably formed the basis for the [Government’s] decision

to seek transfer” of the juvenile to district court to be tried as an adult. Id. Brian

N., nevertheless, left open the possibility that the Government’s good faith

attempt to comply with this records requirement might suffice to meet § 5032’s

records requirement – “we are not required to resolve a conflict where a good

faith effort fails to produce a juvenile record which may in fact exist somewhere.”

Id.

Other courts have recognized that § 5032 requires only that the Government

expend a good faith effort to locate all the juvenile’s records.

While the language of th[is] record certification provision of
§ 5032 is amenable to a strict interpretation, most courts have read
the records certification provision to require only good faith efforts
by the government to provide the court with documentation of a
juvenile’s prior record (or to the effect that no such record exists or
is available).

Wong, 40 F.3d at 1369 (2d Cir. 1994) (citations omitted); see also United States

v. NJB, 104 F.3d 630, 636 (4th Cir. 1997). Further, the legislative history

underlying this records requirement “suggests that a good faith effort by a

prosecutor should be sufficient.” NJB, 104 F.3d at 636.

“In many respects, determination of whether a young offender is to
be treated as a juvenile or an adult and of the appropriate disposition
of juveniles adjudicated delinquent depends on the nature of the

17
 juvenile’s prior record. Too often, however, juvenile proceedings are
undertaken without benefit of such information. This new paragraph
stresses that these records be obtained beforehand whenever possible.
The Committee intends, however, that this new provision’s
requirements are to be understood in the context of a standard of
reasonableness.”

Id. (quoting H.R. Rep. No. 98-1030, at 391 (1984), reprinted in 1984

U.S.C.C.A.N. 3182, 3531) (emphasis omitted).

Further, we note, as did the Seventh Circuit, see Jarrett, 133 F.3d at 537-38,

that in the cases where a federal appellate court has invalidated federal juvenile

proceedings because the Government failed to comply with § 5032’s records

requirement, the Government’s conduct could not be classified as a good faith

attempt to locate the juvenile’s records. Those cases include situations where the

Government failed to submit records that actually existed or at least failed to

present them in a timely manner, or failed to comply at all with the statute. See

United States v. Doe, 13 F.3d 302, 304 (9th Cir. 1993) (vacating delinquency

adjudication where the Government submitted records two months after the

criminal information was filed, when the previous version of § 5032 required that

the records be filed before juvenile proceedings were commenced) overruled on

other grounds by Doe, 366 F.3d at 1075-76; United States v. M.I.M., 932 F.2d

1016, 1020 (1st Cir. 1991) (overturning juvenile delinquency adjudication where

the Government failed to submit the juvenile’s records until the morning of the

delinquency proceeding); United States v. Juvenile Male, 923 F.2d 614, 620 (8th

18
Cir. 1991) (noting that the Government had failed to submit either juvenile

records or a court clerk’s certificate that there were no such records). 7 In

addition, the First Circuit, like this court’s decision in Brian N., 900 F.2d at 22,

left open the possibility that a good faith attempt to comply with § 5032’s records

requirement will suffice. See M.I.M., 932 F.2d at 1019 (holding, under the prior

version of § 5032, that “until the court receives at least a good faith proffer of the

juvenile records or a certificate as to their absence or unavailability, no

proceedings may begin against the juvenile”); see also id. at 1020 n. 2 (noting that

“[t]his case does not present a situation where some, but not all, of the juvenile

records were produced in a timely manner, or where a timely certificate of the

absence or unavailability, regular on its face, was filed, but later proved

erroneous;” further noting that the court does “not reach the questions of whether,

or under what circumstances, such errors might require the dismissal or vacation

of an adjudication”).

In this case, the Government has complied in good faith with its duty to

locate all of David A.’s records. The Government took reasonable efforts to

locate all possible records pertaining to David A. And, unlike in Brian N., there

7
We note that these cases all involved the prior version of § 5032,
which required that the Government submit the juvenile’s records to the district
court before the federal juvenile proceedings could be commenced. See Doe, 13
F.3d at 304; M.I.M., 932 F.2d at 1019; Doe, 923 F.2d at 620.

19
is no suggestion that the Government possesses records that it has not submitted

to the district court; nor is there any suggestion that there are other records that

the Government has failed to locate. See Jarrett, 133 F.3d at 537 (rejecting a

challenge to the Government’s compliance with § 5032’s records requirement, in

part, because the defendant failed to point to any specific records that

Government had failed to submit). The Government’s good faith efforts in this

case were sufficient to satisfy § 5032. See Jarrett, 133 F.3d at 537-38 (holding

the Government complied with § 5032’s records requirements where it properly

submitted records of the defendant’s lone previous conviction and there was no

indication that any other records existed).

C. Meaning of “found guilty”

In this case, the Government sought to transfer David A. to the district

court to be tried as an adult based upon 18 U.S.C. § 5032’s mandatory transfer

rule. In pertinent part, § 5032 provides that

a juvenile who is alleged to have committed an act [enumerated in
§ 5032] after his sixteenth birthday . . . and who has previously been
found guilty of an act which if committed by an adult would have
been one of the offenses set forth in this paragraph or an offense in
violation of a State felony statute that would have been such an
offense if a circumstance giving rise to Federal jurisdiction had
existed, shall be transferred to the appropriate district court of the
United States for criminal prosecution.

18 U.S.C. § 5032 (emphasis added.); see also Female Juvenile, A.F.S., 377 F.3d

at 32. In this case, the Government based its motion for a mandatory transfer on

20
David A.’s 2002 New Mexico juvenile delinquency adjudication resulting from a

residential burglary charge. David A. argues, however, that because he was only

adjudicated a juvenile delinquent, he was never “found guilty” of the residential

burglary charge sufficient to invoke § 5032’s mandatory transfer provision. The

district court, however, held that the New Mexico juvenile delinquency

adjudication was sufficient to satisfy § 5032’s requirement that David A. have

been previously “found guilty” of a specified offense. 8 Reviewing the district

court’s interpretation of § 5032 de novo, see Angelo D., 88 F.3d at 859, we agree.

All of the circuits that have addressed this question have held that a prior

juvenile delinquency adjudication satisfies § 5032’s requirement that the juvenile

have been “found guilty” of a prior offense. See NJB, 104 F.3d at 636-37 (4th

Cir. 1997); United States v. Juvenile Male No. 1, 47 F.3d 68, 69 (2d Cir. 1995)

(in dicta); United States v. David H., 29 F.3d 489, 492-93 (9th Cir. 1994); see

also United States v. Juvenile, 228 F.3d 987, 990 (9th Cir. 2000) (holding that

basing mandatory transfer on prior juvenile delinquency adjudication did not

deprive juvenile of due process or equal protection). The reasoning of these

courts is persuasive.

8
David A. does not dispute that the residential burglary charge
underlying his juvenile delinquency adjudication falls under the category of
offenses that satisfies § 5032’s mandatory-transfer provision.

21
 The language of the statute itself points to this conclusion. See David H.,

29 F.3d at 492. Section 5032’s “phrase ‘has previously been found guilty of an

act’ is followed by the phrase ‘which if committed by an adult would have been

one of the offenses set forth in this subsection.’ . . . The phrase ‘which if

committed by an adult’ . . . clearly indicates Congress intended ‘found guilty’ to

apply to previous juvenile delinquency adjudications.” 9 David H., 29 F.3d at 492.

In addition, the purpose underlying § 5032’s mandatory-transfer rule

supports concluding that § 5032’s phrase “found guilty” includes juvenile

delinquency adjudications. “[B]ecause ‘Congress added the mandatory transfer

provision to the Act for the very purpose of addressing the problem of repeat

juvenile offenders,’ it would make no sense to exclude juvenile adjudications.”

NJB, 104 F.3d at 637 (quoting David H., 29 F.3d at 492-93). Moreover,

“[n]umerous states still consider juvenile proceedings civil in nature.” Id.

The sheer number of states that do not hold juveniles criminally
“guilty” for crimes renders [David A.’s proffered] construction of
§ 5032 [that it applies only to criminal convictions and not to
juvenile delinquency adjudications] unworkable. It seems very

9
The Ninth Circuit further noted that Congress had used similar
language in another section of the FJDA, 18 U.S.C. § 5038, which provides that
“‘[w]henever a juvenile is found guilty of committing an act which if committed
by an adult would be a felony that is a crime of violence . . . , such juvenile shall
be fingerprinted and photographed.’” David H., 29 F.3d at 492 (quoting 18 U.S.C.
§ 5038(d)). The Ninth Circuit noted that this language in § 5038 reinforced that
court’s conclusion that “found guilty” in § 5032 included juvenile delinquency
adjudications. See David H., 29 F.3d at 492.

22
 unlikely that Congress would create a special statute permitting the
Government to treat juvenile offenders as adults in federal court and
then except from the statute’s reach a number of juvenile offenders
solely because state law denominates their prior delinquency
determinations as “adjudications” rather than “convictions.” [The
proffered] construction of the statute leads to an anomalous result:
juvenile offenders accused of the same crime, and with identical
previous criminal records, would be treated differently under federal
law depending on whether the juvenile’s previous crimes occurred in
a state that “convicts” juvenile offenders, or one that “adjudicates”
them delinquent. That could not have been Congress’ intent.

Id.

For these reasons, we agree with all of the circuits that have addressed this

issue and hold that David A.’s previous juvenile delinquency adjudication

satisfied § 5032’s requirement that he “has previously been found guilty” of one

of the enumerated offenses that would support his mandatory transfer to district

court to be tried as an adult.

D. Sufficiency of evidence to establish prior juvenile delinquency
adjudication.

Lastly, David A. argues that the Government failed to prove that he was the

same David A. who had been adjudicated a juvenile delinquent in the New

Mexico proceeding. 10 “Under § 5032, juvenile adjudication is presumed

10
David A. does not challenge any of the district court’s other
determinations: that the current federal drug trafficking charge filed against him
is based upon conduct occurring after he turned sixteen and is an offense
enumerated in § 5032; or that his prior juvenile delinquency adjudication for
residential burglary falls within the category of offenses warranting a mandatory
(continued...)

23
appropriate, and the government bears the burden of establishing that a transfer to

adult status is warranted.” United States v. Leon D.M., 132 F.3d 583, 589 (10th

Cir. 1997) (addressing discretionary transfer); see also Female Juvenile, A.F.S.,

377 F.3d at 32-33 (applying same presumption to motion for mandatory transfer).

We will review the district court’s factual finding that this David A. is the same

individual adjudicated delinquent in the Eddy County, New Mexico proceedings

for clear error. See Sealed Juvenile 1, 192 F.3d at 490.

The Government first argues that David A.’s defense counsel conceded,

during the second transfer hearing, that his client was the same David A. who was

involved in the delinquency proceeding in Eddy County, New Mexico. During

that hearing, defense counsel was arguing that the New Mexico residential

burglary charge was insufficient to invoke the mandatory transfer rule (an

argument that David A. does not now assert on appeal). In asserting this

argument, defense counsel noted that § 5032 required that the prior offense be

one “that by its very nature involves a substantial risk that physical force against

a person of another may be used in committing an offense.” Defense counsel then

argued

under State law, there is no requirement that there be the threatened
use of force or – and there’s no requirement that a person has to be

10
(...continued)
transfer under § 5032.

24
 home or that an owner has to be in the business; that’s simply not
one of the requirements of the offense of burglary. And in speaking
with David about the manner in which this occurred, the act for
which he had been adjudicated delinquent previously, there was no
contact with any person in the structure for which he was accused of
entering and adjudicated delinquent, and there was no threat of force.
The facts underlying the adjudication simply didn’t support that this
was or could have been a crime of violence or an act that by its very
nature involves a substantial risk of physical force against a person
of another may be used in committing the offense.

We disagree that by this argument, defense counsel admitted that David A. was

the same person who was adjudicated delinquent in the juvenile proceeding in

Eddy County, New Mexico. Later in the transfer hearing, defense counsel went to

significant lengths not to concede that point. When the district court inquired

whether defense counsel “dispute[d] that your client is the same David A. that

was adjudicated and adjudged a delinquent child in the Fifth Judicial District

Court, Eddy County matter, concluded in May of 2002,” defense counsel asserted

that he had “no evidence to present one way or the other.” The court did not

understand “what that mean[t].” Defense counsel again responded that

all I’m saying is, my concern is that if I concede something like that,
and it wasn’t sufficiently proven for an appellate court, that it would
be held against him, and I don’t want to concede that on his part.
I’m just saying I don’t have evidence one way or the other.

The Government also asserts that its evidence was, in any event, sufficient

to meet its burden of proving that David A. was the same individual who was

adjudicated a delinquent in the Eddy County, New Mexico proceeding. In

25
addressing this question, we must first determine what that burden is. Other

courts have held that, in a juvenile transfer proceeding, the Government bears the

burden of proving that the juvenile should be tried as an adult only by a

preponderance of the evidence. Cf. United States v. Robinson, 404 F.3d 850, 858

(4th Cir.) (addressing discretionary transfer 11), cert. denied, 126 S. Ct. 469

(2005); see also Doe, 49 F.3d at 868 (2d Cir. 1995) (applying

preponderance-of-the-evidence standard and rejecting, in discretionary transfer

proceeding, argument that burden of proof should instead be by clear and

convincing evidence); United States v. A.R., 38 F.3d 699, 703 (3d Cir. 1994)

(discretionary transfer proceeding); United States v. Juvenile Male No. 1, 86 F.3d

1314, 1323 (4th Cir. 1996) (discretionary transfer proceeding); United States v.

T.F.F., 55 F.3d 1118, 1122 (6th Cir. 1995) (applying preponderance-of-the-

11
When a district court considers a discretionary, as opposed to a
mandatory, transfer, the court must decide whether or not it would be in the
“interest of justice” to try the juvenile as an adult, after considering six factors:

(1) the age and social background of the juvenile; (2) the nature of
the alleged offense; (3) the nature and extent of the juvenile’s prior
delinquency record; (4) the juvenile’s present intellectual
development and psychological maturity; (5) the nature of past
treatment efforts and the juvenile’s response to such efforts; and
(6) the availability of programs designed to treat the juvenile’s
behavioral problems.

United States v. McQuade, 403 F.3d 717, 719 (10th Cir. 2005) (citing 18 U.S.C.
§ 5032). This court reviews a district court’s discretionary transfer decision only
for an abuse of discretion. See id.

26
evidence standard and rejecting, in discretionary transfer proceeding, argument

that burden of proof should instead be by clear and convincing evidence); United

States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992) (applying preponderance-of-

the-evidence standard in discretionary transfer proceeding; rejecting argument

that government should “prove its case for transfer beyond a reasonable doubt”);

Brandon P., 387 F.3d at 976-77 (9th Cir. 2004) (citing cases; discretionary

transfer case); United States v. I.D.P., 102 F.3d 507, 513 (11th Cir. 1996)

(discretionary transfer proceeding). We join these courts and adopt a

preponderance-of-the-evidence standard. We choose to apply this burden of

proof, rather than a higher one, because

a transfer hearing under the JDA is not a criminal proceeding
designed to explore the defendant’s guilt or innocence. That
question is to be determined by means of the eventual trial,
regardless of whether the court determines that the defendant should
be tried as an adult or as a juvenile. Nor does the hearing under the
Act affect whether the defendant will be confined, either prior to or
after trial.

Doe, 49 F.3d at 868. The transfer determination, then, “neither influences nor

affects any issue regarding the defendants’ innocence or guilt. . . . [T]he court’s

findings with respect to transfer is the beginning–not the end–of the adjudicatory

process.” I.D.P., 102 F.3d at 514.

Applying a preponderance-of-the-evidence quantum of proof, we conclude

that the Government met its burden in this case of proving that the David A.

27
adjudicated a delinquent in Eddy County, New Mexico on a residential burglary

charge is the same David A. now charged in this federal proceeding. During the

transfer hearings, the Government submitted as evidence certified copies of 1) a

petition for a juvenile delinquency adjudication filed in Artesia’s Children’s

Court, Eddy County, New Mexico in 2001, alleging the juvenile charged

committed a residential burglary, among other crimes; and 2) a “Judgment and

Disposition” from that same court dated May 6, 2002, “adjudicating the

child . . . a juvenile delinquent.” These two documents concerned a David A. 12

In an analogous situation in an adult criminal proceeding, this court held

that the Government meets its burden of proving, by a preponderance of the

evidence, that a defendant had prior convictions by submitting certified copies of

those convictions. See Cooper, 375 F.3d at 1052-53. In Cooper, the Government

bore the burden of proving that the defendant had prior convictions for sentencing

purposes. See id. at 1052-53. “Whenever a prior conviction is relevant to

sentencing, the government must establish the fact of that conviction by a

preponderance of the evidence.” Id. at 1052. In Cooper, “[t]he government

produced certified documents as evidence of Mr. Cooper’s five prior serious

12
The Government further asserts that the juvenile in both these federal
proceedings and in the Eddy County proceedings has the same last name and birth
date, and has a mother with the same first and last name. None of the parties
have included these exhibits in the appellate record, but the defendant does not
challenge that assertion on appeal.

28
felony convictions. Although Mr. Cooper disputed that the government had

shown he was the Todd Cooper convicted in those cases, he offered no evidence

to contradict the certified copies offered by the government.” Id. at 1053. This

court held that

[i]f the government introduces certified copies of conviction . . . , the
government met its burden of proving by a preponderance that the
defendant committed the prior felonies . . . . After the government
introduces the certified copies of conviction, the district court must
take the additional step of conducting a hearing on the . . . issue only
if the defendant tenders any other evidence that the prior convictions
were not his . . . .

Id. (quotation omitted). In Cooper, then, the district court properly imposed a

sentenced based upon the defendant’s prior convictions, because the defendant

failed to assert his own testimony or other evidence indicating that the prior

convictions were not his. 13 See id.; see also United States v. Oberle, 136 F.3d

1414, 1424 (10th Cir. 1998) (holding Government’s introducing “certified copies

of Oberle’s four previous convictions” was sufficient for government to meet its

burden under 18 U.S.C. § 3559 of proving those prior convictions by a

preponderance of the evidence, where “Oberle offered no evidence to contradict

those certified copies”); United States v. Simpson, 94 F.3d 1373, 1380-81 (10th

Cir. 1996) (holding that the Government’s asserting “certified docket sheet is

13
In Cooper, the district court, under 18 U.S. C. § 3559(c), imposed “a
life sentence under the federal ‘three-strikes’ law based on [Cooper’s]
commission of at least two prior violent felonies.” 375 F.3d at 1052.

29
adequate, absent some contradictory evidence by the defendant, to establish the

existence of a prior conviction” by a preponderance of the evidence for purposes

of enhancing federal sentence); cf. United States v. Johnson, 973 F.2d 857,

861-62 (10th Cir. 1992) (holding Government presented sufficient evidence to

prove prior conviction by a preponderance of the evidence, where Government

submitted certified copy of revocation of probation based upon the conviction at

issue, and where the defendant failed to offer any evidence to contradict the

Government’s evidence).

The same is true in this case. The Government submitted certified

documents indicating David A. was previously adjudicated a juvenile delinquent

in Eddy County, New Mexico. And David A. did not assert any evidence

suggesting that that juvenile delinquency adjudication did not involve him. In

fact, as indicated above, defense counsel strongly suggested in David A.’s

presence that he was the same individual adjudicated a delinquent in the Eddy

County, New Mexico proceedings. 14 Therefore, the Government met its burden of

proving David A.’s prior juvenile delinquency adjudication by a preponderance of

the evidence.

14
Although we conclude defense counsel did not waive his argument
that the Government had failed to meet its burden of proof in establishing that the
David A. that is the subject of these federal proceedings was the same individual
adjudicated delinquent in New Mexico courts, we can still consider defense
counsel’s statement for its evidentiary value.

30
IV. Conclusion

For these reasons, we AFFIRM the district court’s decision granting the

Government’s motion to transfer David A. to the district court to be tried as an

adult.

31