United States Court of Appeals
For the First Circuit
No. 03-2676
UNITED STATES OF AMERICA
Appellee,
v.
MALE JUVENILE E.L.C.,
Defendant/Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
Carter,*Senior District Judge.
Salvador Perez-Mayol for appellant Male Juvenile E.L.C.
Nelson Perez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, were on brief for appellee.
February 3, 2005
*
Of the District of Maine, sitting by designation.
CARTER, Senior District Judge.
I. BACKGROUND
On April 24, 2002, Jose Oscar Rodriguez-Reyes, a police
officer employed by the United States Department of Veterans
Affairs, was shot and killed while performing his duties as a
uniformed guard at the entrance gate of the Veterans Affairs
Hospital in Puerto Rico. A police investigation revealed that a
juvenile male, E.L.C., and another man, Carlos Ayala Lopez, were
armed and approached the guard shack at the entrance of the
veterans hospital. Their plan appears to have been to take
Officer Rodriguez’s gun. Moments after they arrived at the guard
shack, Officer Rodriguez was shot and killed.
Five days after officer Rodriguez was killed, on April 29,
2002, a man, described only as a Dominican national, was also
killed in the course of a robbery. On May 10, 2002, E.L.C. was
arrested and charged with four acts of delinquency before the
court for the Superior Part of Carolina, Puerto Rico, related to
the attempted robbery and murder of the Dominican man. At the
time of his arrest, E.L.C. was in possession of a gun, which
ballistic tests later revealed was the same gun that had killed
Officer Rodriguez and the Dominican man on April 29, 2002.
E.L.C. was adjudicated and sentenced in the Commonwealth court to
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18 months in the Humacao Detention Center on the charges arising
out of the robbery and murder of the Dominican man.
In March 2003, E.L.C. was federally charged in a two-count
sealed Information with aiding and abetting in the unlawful
killing of a federal police officer. Specifically, the
Information charged the killing of a federal officer in an
attempt to perpetrate a robbery that, if he were an adult, would
be in violation of 18 U.S.C. §§ 1111, 1114, 2, and carrying and
using a weapon in relation to a crime of violence that, if he
were an adult, would be in violation of 18 U.S.C. §§ 924(c) &
(j), 2.
The United States Attorney certified that E.L.C. was a
juvenile and that there was a “substantial federal interest” in
the case and the offenses warranted the exercise of federal
jurisdiction. Appellant was fifteen years and 9 months old at
the time of the charged offense. The Government moved to
transfer E.L.C. to adult status for prosecution. E.L.C. objected
to the transfer. After receiving the Puerto Rico juvenile
court’s records and the psychological evaluation report, the
magistrate judge held a hearing on the government's motion to
transfer E.L.C. to the district court's adult criminal
jurisdiction pursuant to 18 U.S.C. § 5032. After hearing from
the clinical psychologist who evaluated E.L.C. and the FBI
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Special Agent involved in the investigation of Officer
Rodriguez’s death, the magistrate judge issued a Report and
Recommendation, which recommended that E.L.C. be transferred to
adult status for prosecution. The district court thereafter
denied E.L.C.’s objections to the Recommended Decision and
adopted the magistrate judge's recommendation that E.L.C. be
transferred to adult status.1 Appellant subsequently filed this
expedited interlocutory appeal challenging the district court's
transfer order.
II. DISCUSSION
This Court has jurisdiction over this case under 28 U.S.C.
§ 1291.
The decision to transfer a juvenile to be prosecuted as an
adult is reviewed for abuse of discretion. United States v.
Smith, 178 F.3d 22, 26 (1st Cir. 1999). “The district court
abuses its discretion ‘when it fails to make the required ...
findings or where the findings it does make are clearly
erroneous.’” United States v. Doe, 94 F.3d 532, 536 (9th Cir.
1996)(quoting United States v. Nelson, 68 F.3d 583, 588 (2d Cir.
1995)).
1
The District Court adopted the recommendation of the
Magistrate Judge without comment. All references will, therefore,
be to the Magistrate Judge’s Report and Recommended Decision.
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The purpose of the federal juvenile delinquency process is
to “remove juveniles from the ordinary criminal process in order
to avoid the stigma of a prior criminal conviction and to
encourage treatment and rehabilitation.” United States v. Female
Juvenile, A.F.S., 377 F.3d 27, 32-33 (1st Cir. 2004)(quoting
United States v. Brian N., 900 F.2d 218, 220 (10th Cir.
1990)(citations omitted)). The district court must balance these
important interests against “the need to protect the public from
violent and dangerous individuals.” See United States v.
Juvenile Male # 1, 47 F.3d 68, 71 (2d Cir. 1995); see also United
States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994).
There is a presumption in favor of juvenile adjudication and,
therefore, the burden is on the government to establish that
transfer to adult status is warranted. Female Juvenile A.F.S.,
377 F.3d at 32 (quoting Juvenile Male # 1, 47 F.3d at 71).
A juvenile who is alleged to have committed an act which, if
committed by an adult, would be a felony that is a crime of
violence, may be proceeded against as an adult by means of a
transfer to adult court if the district court determines that it
would be “in the interest of justice” to do so. 18 U.S.C. §
5032. In determining whether a transfer would be in the interest
of justice, Congress provided six factors to guide the district
court:
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[1] the age and social background of the juvenile; [2]
the nature of the alleged offense; [3] the extent and
nature 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; [6] the availability of programs designed to
treat the juvenile's behavioral problems.
18 U.S.C. § 5032. The district court must consider and make
findings with respect to each factor. Id. The district court
need not find that each factor weighs in favor of transfer in
order to grant the Government’s motion. Other Circuit Courts,
including this one, have held that the district court need not
even find that a majority of factors weigh in favor of the
prevailing party, as “it is not required to give equal weight to
each factor but ‘may balance them as it deems appropriate.’”
United States v. Leon D.M., 132 F.3d 583, 589 (10th Cir.
1997)(quoting Juvenile Male # 1, 47 F.3d at 71); see also United
States v. Wilson, 149 F.3d 610, 614 (7th Cir. 1998); United
States v. Juvenile JG, 139 F.3d 584, 586-87 (8th Cir. 1998); Leon
D.M., 132 F.3d at 589; United States v. Wellington, 102 F.3d 499,
506 (11th Cir. 1996); Doe, 94 F.3d at 537; Juvenile Male # 1, 47
F.3d at 71; United States v. One Juvenile Male, 40 F.3d 841,
845-46 (6th Cir. 1994); United States v. A.R., 38 F.3d 699, 705
(3d Cir. 1994); United States v. Doe, 871 F.2d 1248, 1254-55 (5th
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Cir. 1989); United States v. Hemmer, 729 F.2d 10, 17 (1st Cir.
1984).
The decision on whether to transfer a young individual to
adult status for prosecution is in most instances a difficult one
as it can have severe consequences for a juvenile’s
rehabilitation. Although the court must address each factor, the
district court “is not required to state whether each specific
factor favors or disfavors transfer.” Leon D.M., 132 F.3d at 589
(citing United States v. Three Male Juveniles, 49 F.3d 1058, 1061
(5th Cir. 1995)). Rather, the court must balance the evidence
before it, weighing each factor as it sees fit, to determine
whether a transfer to adult status best serves “the interest of
justice.” 18 U.S.C. § 5032. The analytical balancing of the
transfer factors cannot be expressed mathematically. See Wilson,
149 F.3d at 614.
A review of the magistrate judge’s decision reveals that she
considered each of the factors set forth in 18 U.S.C. § 5032.
Because the magistrate judge made the requisite findings, the
first issue for this Court to consider is whether any of those
findings are clearly erroneous. To that end, we have reviewed
the transcript of the transfer hearing and the written report of
the clinical psychologist who examined E.L.C. We conclude that
none of the magistrate judge’s findings on the six factors show
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clear error, and the factors were reasonably weighed in the
circumstances of this case.
E.L.C. argues that the magistrate judge erroneously
considered his participation in the robbery and murder of the
Dominican man, which occurred subsequent to the murder of Officer
Rodriguez, in weighing the third transfer factor – the extent and
nature of the juvenile's prior delinquency record. E.L.C.
presented a similar argument – that subsequent bad acts cannot be
considered in weighing a defendant’s prior delinquency record –
before the magistrate judge and in response the magistrate judge
stated that “even if not to be considered under the ‘prior
conviction’ category, [it] may be properly considered within
E.L.C.’s social background and his responses to treatment
efforts.” Report and Recommendation at 7. The magistrate judge
concluded that “under either factor, the actions underlying the
state charges constitutes conduct that favors transfer.” Id.
We do not think that “prior delinquency record” can
plausibly be interpreted to encompass criminal conduct that
occurred after the charged acts. However, section 5032's
requirement that mentation be given to all six named transfer
factors, does not preclude the district court from considering
other unnamed factors that are relevant to the determination of
whether the juvenile’s transfer would be in “the interest of
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justice.” In this case, the seriousness and similarity of the
subsequent criminal acts to the circumstances of the charged
offenses, as well as the fact that those acts occurred just five
days after Officer Rodriguez was killed, justify their
consideration in the overall interest of justice assessment.2
The Court notes that although the magistrate judge discussed
the subsequent criminal conduct under the heading of “prior
delinquency,” it appears that she concluded that it was
appropriate to consider subsequent criminal activity under either
the social background factor or responses to treatment efforts
factor.3 However, even if it was considered under the prior
juvenile delinquency category, there was no error. This is so
because the Court finds that E.L.C.’s criminal conduct that
occurred subsequent to the crime charged in this case was
properly considered as bearing on E.L.C.’s potential for
rehabilitation in the juvenile justice system. Recognizing that
the transfer factors are weighed and not numerically tallied, the
2
Our holding, on the exceptional facts of this case, should not
be understood to require the consideration of subsequent criminal
acts in all circumstances.
3
This Court considers that the plain language of either of two
transfer factors – “the juvenile's present intellectual development
and psychological maturity," and "the age and social background of
the juvenile," – is broad enough to authorize the consideration of
evidence regarding E.L.C.’s criminal activities subsequent to the
charged offense.
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inaccurate categorization of the consideration of the conduct
does not result in error.
Appellant E.L.C. also argues that the magistrate judge gave
excessive weight to the nature of the alleged offense. As
discussed above, the weight to be given each factor is left to
the discretion of the district court. The magistrate judge
considered and made factual findings as to all six statutory
factors.4 None of those factual findings is clearly erroneous.
The gravity of the crimes charged warrants their consideration as
a weighted factor in the transfer analysis. Even if the
magistrate judge relied primarily on the serious nature of the
charged offense conduct, such reliance does not invalidate the
analysis. The magistrate judge did not abuse her discretion under
4
One week prior to oral argument in this case, Appellant filed
a “Motion to Complement Appellant’s Argument During Scheduled
Hearing.” With one exception, the Motion asserts the same
arguments that Appellant relied upon in his brief. The single
distinct challenge is that the magistrate judge failed to evaluate
the possibilities and alternatives available for E.L.C.’s
rehabilitation.
It is clearly established in this Circuit that, in the absence
of exceptional circumstances, arguments which could have been
timely raised, but were not, will be rejected. See, e.g.,
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990).
Without doubt, Appellant’s supplemental arguments all could have
been raised in his original brief. Nevertheless, it is evident
from the record that the magistrate judge examined the alternatives
for E.L.C.’s rehabilitation and concluded, based on the
psychologist’s report, that the adult system is better equipped to
provide E.L.C. with the programs he needs.
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the statute in weighing the transfer factors and in determining
that E.L.C.’s transfer to adult status was in the interest of
justice within the meaning of § 5032. Accordingly, the order of
the district court is AFFIRMED.
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