United States v. Juvenile Male

Filed: July 15, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-4212
(CR-95-169)

United States of America,

Plaintiff - Appellee,

versus

Juvenile Male #1,

Defendant - Appellant.

O R D E R

The Court amends its opinion filed June 11, 1996, as follows:

On page 2, second full paragraph, line 10 -- a section symbol
is added before "922(x)."

On page 2, third full paragraph, line 3 -- the phrase "an

Asheville parking lot" is corrected to read "a Charlotte parking
lot."

For the Court - By Direction

/s/ Bert M. Montague

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4212

JUVENILE MALE #1,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-95-169)

Argued: May 6, 1996

Decided: June 11, 1996

Before WILKINSON, Chief Judge, and HALL and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed and remanded by published opinion. Judge Hall wrote the
majority opinion, in which Judge Michael joined. Chief Judge Wil-
kinson wrote an opinion concurring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Charles Linwood Morgan, Jr., Charlotte, North Carolina,
for Appellant. Kenneth Davis Bell, First Assistant United States
Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:
Mark T. Calloway, United States Attorney, Charlotte, North Caro-
lina, for Appellee.

_________________________________________________________________
OPINION

HALL, Circuit Judge:

Juvenile #1,1 who was initially charged in federal court with com-
mitting acts of juvenile delinquency, appeals the order transferring his
case to adult status. We affirm and remand for further proceedings.

I

On September 18, 1995, Juvenile #1 was charged in a juvenile
information with the following acts of delinquency: unlawfully taking
by violence a motor vehicle shipped in interstate commerce (carjack-
ing), in violation of 18 U.S.C. § 2119, and conspiring to violate the
carjacking statute, in violation of 18 U.S.C. § 371; carrying a firearm
in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1), and conspiracy to violate the same statute; causing the
death of a person through the use of a firearm, in violation of 18
U.S.C. §§ 924(i) and 2; possession of a handgun by a person under
the age of eighteen, a misdemeanor, in violation of 18 U.S.C. § 922(x);
and hindering the apprehension of an offender, in violation of 18
U.S.C. § 3. On the same date, the government certified to the court
that six of the seven counts involved crimes of violence and that
"there exists as to all counts a substantial federal interest warranting
the exercise of federal jurisdiction pursuant to 18 U.S.C. § 5032." The
government also moved for the transfer of Juvenile #1 to the appro-
priate district court for prosecution as an adult.

The following story emerged at the transfer hearing. On June 11,
1995, Juvenile #1 and a twenty-one year old, Darius Bennett, stole a
car from a Charlotte parking lot. At the time, Juvenile #1 had a .380
handgun and Bennett had a 12-gauge pistol grip shotgun. They then
met two other juveniles and another adult, and the five discussed rob-
bing someone. The group drove in the stolen car to the Hilton hotel
and waited in the parking lot. As a car drove in and parked, Juvenile
#1 remarked, "There go two white women, let's jack [rob] them."
_________________________________________________________________

1 18 U.S.C. § 5038(e) provides that "[u]nless a juvenile . . . is prose-
cuted as an adult neither the name nor picture of any juvenile shall be
made public in connection with a juvenile delinquency proceeding."

2
Juvenile #1 and Bennett, each with his gun, approached the women's
car. Juvenile #1 went to the driver's side and told the driver, Alisa
Reasor, to give him the keys; she complied. As Bennett approached
the passenger side, Patricia Jones started to run, and Bennett shot her
in the back at close range and killed her. Reasor escaped and hid
while the two stolen cars pulled away. Juvenile #1 drove the women's
car.

The women's car was found abandoned seven miles out of town.
Phone calls had been made from the women's cellular phone; one call
was to Juvenile #1's hometown in Massachusetts. The group went to
a cookout at a friend's house that evening, and two empty bottles of
the souvenir wine that the women had bought that day were found in
a nearby dumpster. Juvenile #1 took a cab home that night. The cabby
gave a statement that Juvenile #1 said that he and his friend had stolen
a car and that his friend "got stupid and shot at a woman."

The district court ordered that Juvenile #1 be transferred to adult
status.2 In this appeal, he contends that his case should not be in fed-
eral court at all, and, even if it should, that he should not be prose-
cuted as an adult. We turn first to the issue of the court's subject
matter jurisdiction.

II

The violation of a federal criminal law by a person under the age
of eighteen is deemed an act of juvenile delinquency. 18 U.S.C.
§ 5031. There are, however, restrictions on the exercise of federal
jurisdiction over juveniles. A juvenile accused of delinquency shall
not be proceeded against in federal court

unless the Attorney General, after investigation, certifies to
the appropriate district court that . . . (1) the juvenile court
or other appropriate court of a State does not have jurisdic-
tion or refuses to assume jurisdiction over said juvenile with
respect to such alleged act of juvenile delinquency, (2) the
_________________________________________________________________

2 The other two juveniles were similarly charged and transferred, but
only Juvenile #1 has taken an interlocutory appeal from the transfer
order.

3
 State does not have available programs and services ade-
quate for the needs of juveniles, or (3) the offense charged
is a crime of violence that is a felony or [one of a number
of a specified drug or firearm offenses], and that there is a
substantial Federal interest in the case or the offense to war-
rant the exercise of federal jurisdiction.

18 U.S.C. § 5032. In the certification submitted in Juvenile #1's case,
the stated basis was the third prong, "a crime of violence . . . and a
substantial Federal interest." No further reasons were given, either in
the certification document or at the transfer hearing, for the
government's3 decision to proceed in federal court rather than permit-
ting the state authorities to handle the matter.

Juvenile #1 moved to dismiss the case on the ground that the Attor-
ney General had failed to show a "substantial Federal interest" that
would justify the exercise of federal jurisdiction. The government
countered that the statute only required that the certification state that
the case met one of the statutory criteria, which it did. The district
court ruled that the form of the certification was indeed proper, and,
further, that the basis of the government's decision-- the nature of
the "substantial Federal interest" -- was not a reviewable matter. On
appeal, the threshold questions are these: Is the government's decision
to proceed in federal court reviewable by the court, and, if so, to what
extent?

A

The Attorney General clearly has the authority to initiate federal
charges of juvenile delinquency. The issue is whether this prosecu-
torial discretion, once exercised, imbues the court with jurisdiction to
proceed without further inquiry into whether the case actually meets
the statutory criteria.4
_________________________________________________________________

3 Under the authorization found in 28 C.F.R. § 0.57, the Attorney Gen-
eral has delegated her certification and transfer authority to the United
States Attorneys.

4 It is important to keep in mind that this issue is distinct from the other
issue before us, whether the appellant should be tried as an adult. See S.

4
The reviewability of the Attorney General's certification decision
has generated a circuit split.5 One court of appeals has held that the
courts have the authority to review more than the mere form of the
government's certification. In United States v. Juvenile Male, 923
F.2d 614 (8th Cir. 1991), the appeals court considered whether the
offenses charged -- travel in interstate commerce with intent to mur-
der and conspiracy to murder -- were "crimes of violence" within the
meaning of § 5032(3). After deciding that they were, the court moved
on to the form of the certification and found it lacking because it
failed to state that there was a substantial federal interest in the case.
Id. at 620. This technical requirement was deemed a "jurisdictional
prerequisite," albeit one that could be readily remedied by retyping
the certification document. Id. No mention was made of reviewing the
basis for finding a "substantial Federal interest," but the implication
is that merely reciting the statutory language would be sufficient. See
id. at 617-18 ("While this court may not have the power to guide a
federal prosecutor's discretion, we must insure that the exercise of
that discretion is within the confines of section 5032."). See also
United States v. Doe, 49 F.3d 859, 866-67 (2nd Cir. 1995) (reviewing
district court's finding that the offense charged was a "crime of vio-
lence" within § 5032's certification provisions).
_________________________________________________________________

Rep. No. 225, 98th Cong., 2d Sess. 389 n.10, reprinted in 1984
U.S.C.A.N. 3182, 3529 (hereinafter "S. Rep.") ("The criteria for prosecu-
tion of a juvenile as an adult are entirely separate from the criteria which
governs whether a juvenile must be surrendered to State authorities. Only
if the criteria for retaining federal jurisdiction over a juvenile in the first
instance . . . are met, may there then be consideration of whether Federal
prosecution, as opposed to a Federal juvenile delinquency proceeding, is
appropriate.").

5 In United States v. Romulus, 949 F.2d 713, 715 (4th Cir. 1991), cert.
denied, 503 U.S. 992 (1992), we noted in our rendition of the facts of
that case that "[t]he Attorney General made the necessary certification to
the district court as required by 18 U.S.C.A. § 5032, providing the dis-
trict court with jurisdiction over Romulus." The opinion, however, does
not mention whether Romulus raised an issue regarding the jurisdictional
sufficiency of the certification, and, to the extent that our opinion can be
read to support the view that certification is not reviewable, it is dictum.
The government does not rely on Romulus to support its position on the
certification issue in the instant case.

5
The Second and Eleventh Circuits, on the other hand, have held
that the district court may not look behind the certification decision
except where there are allegations of prosecutorial bad faith. See
United States v. C.G., 736 F.2d 1474 (11th Cir. 1984); United States
v. Vancier, 515 F.2d 1378 (2nd Cir.), cert. denied, 423 U.S. 857
(1975). In Vancier, the court pointed to the lack of any specific statu-
tory provision for judicial review and the lack of standards under
which such review should be conducted. Id. at 1380. The certification
also was viewed as belonging to a category of unreviewable prosecu-
torial decisions, such as a determination that the public interest
requires that a witness be compelled to testify under immunity. Id. at
1381.6 Under this view, the certification requirement "qualifies the
Government's discretion, . . . but it does not grant the power to the
courts to make the final decision." Id. at 1380-81.

B

One district court in our circuit has concluded, based on the Eighth
Circuit's decision in Juvenile Male, that the "substantial Federal inter-
est" element of the certification is reviewable. United States v. Male
Juvenile, 844 F. Supp. 280 (E.D. Va. 1994).7 Confronted with an
obvious crime of violence -- armed bank robbery -- the court
pointed to a Senate report on the 1984 amendments in which the com-
mittee noted that a "substantial Federal interest" should only be found
in cases that

give rise to special Federal concerns. Examples of such
cases could include an assault on, or assassination of, a Fed-
eral official, an aircraft hijacking, a kidnapping where state
_________________________________________________________________

6 Both C.G. and Vancier were decided before the 1984 amendments
that added subsection (3)'s "substantial Federal interest" prong. See Pub.
L. No. 98-473, § 1201(a), 98 Stat. 2149 (1984). The certification in each
of these cases was based on an alleged lack of state court jurisdiction
over the juvenile with respect to the offenses charged. C.G., 736 F.2d at
1477; Vancier, 515 F.2d at 1380.

7 Contra United States v. Juvenile Male, 915 F. Supp. 789, 793 (W.D.
Va. 1995) (hereinafter "Juvenile Male (W.D. Va.)") (holding that "the
court may only make a facial inquiry into the validity of the certifica-
tion.").

6
 boundaries are crossed, a major espionage or sabotage
offense, participation in large-scale drug trafficking, or sig-
nificant or willful destruction of property belonging to the
United States.

Id. at 283 (quoting S. Rep. at 389). The court concluded that the certi-
fication requirement was intended to limit federal jurisdiction over
juveniles to something less than all violent federal offenses; other-
wise, "the `substantial Federal interest' language would be reduced to
mere surplusage." Id. at 284. The court then ruled that "the Govern-
ment's interest in an ordinary bank robbery, absent some allegation
of a special Federal concern, per se does not rise to the level of a sub-
stantial Federal interest" (emphasis in original), and, therefore, com-
pliance with § 5032 had not been shown. Id. at 285. The case was
dismissed for lack of jurisdiction.

That there is a clear congressional intent to limit the types of cases
that the executive should bring in federal court does not necessarily
implicate a concomitant judicial power to look behind such decision.
Nevertheless, although neither Juvenile Male nor Male Juvenile pro-
vides a completely satisfactory rationale, we are of the opinion that
the "substantial interest" and other prongs of the certification statute
act as limits on the federal courts' jurisdiction to act in this sphere.

C

It should be beyond serious argument that the courts should review
compliance with the essentially technical requirements of § 5032,
such as the proper certifying party (United States v. Cuomo, 525 F.2d
1285, 1287 (5th Cir. 1976)), timeliness of the certification (id. at
1289; United States v. Baker, 10 F.3d 1374, 1396 (9th Cir. 1993),
cert. denied, 115 S. Ct. 330 (1994)), inclusion of the statutory lan-
guage (Juvenile Male), or the age of the juvenile. The issue of
reviewability is a closer one when certification is based on a judgment
call by the prosecutor such as, for instance, that the state lacks "ade-
quate" services and programs, or on the assertion of legal "facts" and
conclusions such as the lack of state court jurisdiction (Vancier, C.G.)
or that the charge involves a "crime of violence" (Male Juvenile).
Whether there is a "substantial Federal interest," however, comes
closer to the sort of discretionary decision more commonly thought

7
of as the type of prosecutorial decisions that are immune from judicial
review. See Vancier, 515 F.2d at 1381 (noting "several instances in
which it has been held that members of the executive branch are
authorized to make certain unreviewable determinations in connection
with law enforcement matters"). The Attorney General's decision in
this regard is perhaps entitled to more deference than a determination
that a given offense is a "crime of violence." Nevertheless, we believe
that the intent of Congress was that a court must first satisfy itself that
there is indeed a substantial interest before jurisdiction can be
assumed over the juvenile.

D

The lack of a specific provision addressing judicial review is in and
of itself no bar to review. In Gutierrez de Martinez v. Lamagno, 115
S. Ct. 2227 (1995), the Court analyzed a similar question of "who
decides" in the context of the scope-of-employment certification
under the Westfall Act. Because the text of the statute was ambigu-
ous, the Court "adopt[ed] the reading that accords with traditional
understandings and basic principles: that executive determinations
generally are subject to judicial review and that mechanical judg-
ments are not the kind federal courts are set up to render." Id. at 2236.
The Court found nothing in the language of the statute or in the legis-
lative history to indicate that the scope-of-employment decision was
intended to be unreviewable. The Court also noted two considerations
that militated in favor of finding that the decision was reviewable.
First, there is often a financial incentive present in the scope-of-
employment decision, and second, the certification decision itself is
dispositive of the controversy. Id. at 2227.

The structure of § 5032 is similar to the provisions of the Westfall
Act analyzed in Lamagno: "Upon certification by the Attorney Gen-
eral that the defendant employee was acting within the scope of his
office or employment, . . . the United States shall be substituted as a
party defendant." 28 U.S.C. § 2679(d)(1). To be sure, the decision to
proceed against a juvenile in federal court does not entail the financial
considerations present in a Westfall Act case, nor is a § 5032 certifi-
cation dispositive of the merits of the controversy. See Juvenile Male
(W.D. Va), 915 F. Supp. at 794-95. However, other perhaps weightier
considerations of a different sort militate against finding that "the

8
strong presumption that Congress intends judicial review" has been
overcome in the juvenile justice arena. Lamagno, 115 S. Ct. at 2231
(quoting Bowen v. Michigan Academy of Family Physicians, 476 U.S.
667, 670 (1986)).

E

Prior to the 1984 amendments, § 5032 embodied a clear preference
for having juvenile criminal matters handled in the state courts. Then
as now, subsection (1) provided for federal jurisdiction if the state
was unable or unwilling to do anything, while subsection (2) allowed
the federal court to get involved if the state was unequipped to offer
"programs and services adequate for the needs" of the juvenile. Exec-
utive discretion was limited to three questions: Can the State handle
it? Will the State handle it? Is the State a better place to handle it
(from the juvenile's perspective)? Prior to the 1984 amendments,
then, the certification statute embodied an almost purely rehabilitative
model in which the federal court would only become involved when
necessary for the good of the juvenile. See United States v. Hill, 538
F.2d 1072, 1074 (4th Cir. 1976) (the purpose of the juvenile statute
"is to be helpful and rehabilitative rather than punitive").

The 1984 amendments, however, injected a new element into the
certification calculus: Is the crime of a sufficiently serious type that
federal resources should be called upon, without regard to the State's
willingness or ability to handle the matter? The addition of this third
prong, with its focus on the offense rather than the offender, vastly
expanded the possible bases for invoking federal jurisdiction.

In addition, in 1984 and again in 1988, Congress expanded the cir-
cumstances under which transfer to adult status is possible and, in
some cases, mandatory. See Pub. L. No. 98-473, § 1201(b)(1)-(3), 98
Stat. 2149 (1984); Pub. L. No. 100-690, § 6467(a), 102 Stat. 4375
(1988). Prior to the 1984 amendments, there were no provisions for
mandatory transfer, and juveniles who committed offenses when they
were younger than sixteen could not be tried as adults regardless of
the crime. The import of this expansion, both in federal jurisdiction
and federal adult jurisdiction, is obvious -- juvenile crime is becom-
ing, particularly by virtue of the increase in the overall number of

9
serious crimes committed by juveniles, a national problem that Con-
gress believes is best addressed on a federal level.8

Against this legislative backdrop, we return to the original ques-
tion: Who decides? We find nothing in the statutory language or leg-
islative history that would overcome the presumption of judicial
review. See id. at 2231 ("[W]e have stated time and again that judicial
review of executive action `will not be cut off unless there is persua-
sive reason to believe that such was the purpose of Congress.'" (quot-
ing Abbot Laboratories v. Garner, 387 U.S. 136, 140 (1967)). Except
for that limited group of crimes to which mandatory transfer to adult
status applies, the focus of the juvenile statutes is still on rehabilita-
tion within the state systems.9 Therefore, we continue to adhere to our
long held view that rehabilitation is the primary focus of the juvenile
justice system, and that focus should be given important consideration
in construing the juvenile statutes. See In re Gault, 387 U.S. 1, 14-18
(1967) (tracing history of juvenile justice system).

In the final analysis, whether there is a "substantial Federal inter-
est" in a given case implicates our authority over the juvenile to the
same extent and for many of the same reasons as whether the juvenile
is alleged to have violated a federal law, whether that violation is a
"crime of violence," or whether the appropriate state authorities have
refused to act. In short, we can and must first satisfy ourselves that
our jurisdiction has been properly invoked. We do so by reviewing
the stated reasons underlying the government's decision to proceed in
federal court. See United States v. Doe, 13 F.3d 302, 304 n.1 (9th Cir.
1993) ("The government must show a substantial federal interest only
when it certifies a serious federal crime.") (dicta).
_________________________________________________________________

8 See S. Rep. at 386 ("[C]ertain modifications in current law are neces-
sary to allow an adequate Federal response to serious criminal conduct
on the part of juveniles").

9 See S. Rep. at 386 ("The essential concepts of the [Juvenile Justice
and Delinquency Act of 1974] are that juvenile delinquency matters
should generally handled by the States and that criminal prosecution of
juvenile offenders should be reserved for only those cases involving par-
ticularly serious conduct by older juveniles. The Committee continues to
endorse these concepts . . .").

10
III

If the certification decision is reviewable, as we hold it is, must we
now remand this case in order to allow the district court to conduct
that review in the first instance? Despite the lack of a record explain-
ing the Attorney General's decision to bring this action in the district
court, we are of the opinion that a substantial federal interest is clearly
present.

Juvenile #1 attempts to minimize the federal interests by character-
izing the sole basis for federal jurisdiction as being the involvement
of a car that was manufactured outside the borders of North Carolina
(which is to say, the involvement of a car). There is, of course, also
the use of a firearm. More significantly, there is the carjacking itself,
a crime that until recently was, with exceptions, the sole province of
the states. Our review of the legislative history of the carjacking stat-
ute convinces us that the federal interest here is significant enough to
reach the "substantial interest" threshold of§ 5032.

In response to the growing use of violence to steal cars, Congress
federalized the crime of carjacking in 1992. Pub. L. No. 102-519,
§ 101(a), 106 Stat. 3384 (1992) (codified at 18 U.S.C. § 2119). The
level of Congressional concern is revealed in the harshness of the
punishments prescribed: Imprisonment of up to fifteen years for car-
jackings in which no one was injured, and the death penalty for those
carjackings that result in death of a victim. Floor debates and commit-
tee reports all attest to the Congress's concern with both the increas-
ing number of carjackings as well as the increasingly violent nature
of the crimes.10 The role of juveniles was noted:

[A]nother aspect of the auto theft problem is the rash of
theft by juveniles. Children, some not even teenagers, are
stealing cars at an appalling rate. They start young--
sometimes they're barely tall enough to see over the steering
wheel. Unfortunately, it doesn't take long for them to
become experts, able to enter and steal a car in seconds.
These young auto thieves pose a substantial threat to public
safety.
_________________________________________________________________

10 See, e.g., 138 Cong. Rec. S17,960 (1992) (remarks of Sen. Pressler).

11
138 Cong. Rec. S17,961 (1992) (remarks of Sen. Lautenberg). The
penalties and the sense of urgency engendered by the national "epi-
demic of motor vehicle theft" and the "plague" of carjacking are
strong indicators of more than a run of the mill federal interest in the
problem.11

Juvenile #1 is charged with six federal felonies. That the circum-
stances of the carjacking and murder are particularly egregious mili-
tates strongly in favor of the exercise of federal jurisdiction. We hold
that there is a sufficient "substantially Federal interest" for the invoca-
tion of federal jurisdiction over this case. We turn, then, to the trans-
fer itself.

IV

A

Section 5032 provides that a juvenile may be transferred to adult
status "if [the district] court finds, after hearing, such transfer would
be in the interests of justice." The statute also requires the court to
consider six factors. These factors, and the district court's findings
with regard to each, are as follows:

(1) Age and social background: The district court recognized that
Juvenile #1 was neglected and abused throughout much of his life.
However, the court noted that he was fifteen at the time of the offense
and therefore old enough to know the serious nature of his actions.
The court also noted that under state law (N.C.G.S. § 7A-608 (1994
Supp.)), a juvenile thirteen years or older who commits the same
crime is "automatically transferred" to adult status. "On balance,
Juvenile #1's age and background weigh in favor of transferring him
. . ."

(2) Nature of alleged offense: The court found that Juvenile #1
actively participated in the carjacking that led to the murder, that he
_________________________________________________________________

11 "Carjacking threatens to spread rapidly around the nation, as crimi-
nals engage in copycat crimes. To prevent such a plague, we need to
bring Federal resources to bear." 138 Cong. Rec. S17,961 (1992)
(remarks of Sen. Lautenberg).

12
stole things from the car, and that he "even drank the stolen wine."
The court found that "the nature of the offense factor militates heavily
in favor of transfer . . ."

(3) Extent and nature of prior delinquency record: A Massachusetts
detective testified about Juvenile #1's earlier troubles with the law. In
August 1994, he was involved in a fracas over a basketball bet in
which he used a baseball bat as a weapon. In running from his oppo-
nent, he ran across several cars and caused over $250 in damages. He
was convicted as a juvenile and put on probation. He later was
charged with injuring school property and violating the state graffiti
law (the latter being a felony), for which there are outstanding war-
rants. The district court found that this factor"favors transfer";

(4) Present intellectual development and psychological maturity:
Juvenile #1 had miserable grades in the 9th grade, both in Massachu-
setts and, from April, 1995, through the completion of the school
year, in Charlotte. After his arrest, he was placed in the Gatling Cen-
ter, a juvenile diagnostic center, where his grades improved dramati-
cally to all As and Bs. He was determined to be of average
intelligence and able to understand the nature of his acts. Psychologi-
cal reports noted that he is easily influenced by his peers and lets
emotion, especially anger, cloud his judgment. With regard to the car-
jacking incident, he didn't feel that he did anything wrong, that he did
what he was told, and that he felt threatened; "I'm weak-minded." Dr.
Custrini, a psychologist who evaluated Juvenile #1 under a referral
from the juvenile's counsel, concluded that Juvenile #1 "may be able
to gain some benefit from treatment at this time."

The court interpreted the psychological data as meaning that Juve-
nile #1 was able but not willing to take responsibility for his actions,
and this factor was also found to favor transfer to adult status.

(5) Nature of past treatment efforts and the response to such
efforts: Juvenile #1 had "received and benefitted from individual ther-
apy" in Massachusetts from 1989 to May 1993, and he was in a youth
group in Charlotte for the month preceding the murders. One of the
teachers at Gatling reported that Juvenile #1 "continues to challenge
verbally his peers, encourage his peers to violence, and incite others

13
not to do their classroom assignments." The court again found that,
"on balance, this factor weighs in favor of transfer . . .";

(6) Availability of programs designed to treat the behavioral prob-
lems: The government put on some evidence of limited federal and
state programs. A federal program in Tennessee could take Juvenile
#1 until he turned 21, but the court felt that this was insufficient time
to rehabilitate him.

Juvenile #1 does not object to any of the historical facts found by
the district court. His argument is that the court wrongly interpreted
these facts in finding that four of the six factors (#1, 3, 4 and 6)
favored transfer.

B

The government has the burden of proving that a transfer "would
be in the interests of justice." 18 U.S.C. § 5032. There is, however,
no consensus among the courts of appeals on the burden of proof at
the transfer hearing. It is settled that the district court is statutorily
mandated to make findings on each of the enumerated factors.
Romulus, 949 F.2d at 715. We have not yet articulated what specific
burden of proof rests on the government, having held only that "[t]he
question of whether the interest of justice is served by the transfer of
a juvenile for adult prosecution is a decision within the broad discre-
tion of the district court." Id.

Some courts have held that because the transfer proceeding is an
adjudication of a status, rather than of a crime, it is civil in nature and,
therefore, the government must "prove its case for transfer" by a pre-
ponderance of the evidence. United States v. Parker, 956 F.2d 169,
171 (8th Cir. 1992); see also United States v. A.R., 38 F.3d 699, 703
(3rd Cir. 1994) ("Although the government bears the burden of rebut-
ting the statutory presumption of juvenile treatment, the government
need only persuade the court by a preponderance of the evidence.")
(citing Parker). We have held, in rejecting an argument that the Sixth
Amendment requires trial by jury in delinquency adjudications, that
the delinquency proceeding itself was not "essentially criminal" but
was instead "an ascertainment of status as a juvenile delinquent." Hill,
538 F.2d at 1075.

14
We hold that the government must prove by a preponderance of the
evidence that a transfer would be in the interests of justice. The dis-
trict court, however, may determine what weight to give the various
factors. United States v. Doe, 871 F.2d 1248, 1254-55 (5th Cir.), cert.
denied, 493 U.S. 917 (1989). The "interest of justice" analysis
requires the court to "balance the [rehabilitative] purposes against the
need to protect the public from violent and dangerous individuals."
United States v. Juvenile Male No. 1, 47 F.3d 68, 71 (2nd Cir. 1995)
(citation omitted); see also United States v. T.F.F., 55 F.3d 1118,
1119 (6th Cir. 1995). Nothing in the record in this case indicates that
the district court did not proceed properly in arriving at its ultimate
conclusion that the government's transfer motion should be granted.12

C

We conclude that there was adequate evidence to support the
court's findings on each factor. While Juvenile #1's family back-
ground is distressing, that North Carolina would automatically trans-
fer him to adult status were this case in state court strongly militates
in favor of a similar treatment. His juvenile record, while perhaps not
extensive, is still a record, and it is one that was first established when
he was more than two months shy of his fourteenth birthday.

Despite the record of some improvement during his recent deten-
tion at the federal diagnostic center, the court noted -- and Juvenile
#1 does not dispute -- that he continues to "encourage his peers to
violence." It is clear that the court did not err in concluding that Juve-
nile #1's "response to treatment," particularly in light of what was at
stake while he was detained prior to the hearing, did not support
repeated attempts at rehabilitation over the limited time available
under the juvenile statutes.13 See United States v. Nelson, 68 F.3d 583,
590 (2nd Cir. 1995) ("[A] glimmer of hope in future treatment, stand-
_________________________________________________________________

12 In the "Memorandum and Order" transferring Juvenile #1, the district
court expressly noted that the result would have been the same under
either a clear-and-convincing or a preponderance standard.

13 Under 18 U.S.C. § 5037(b), the maximum period of detention to
which Juvenile #1 would have been subject had he been tried as a juve-
nile would be through "the date when he becomes twenty-one years old,"
which in this case is March 30, 2001.

15
ing alone, would be insufficient to warrant a finding that rehabilita-
tion is likely.").

Finally, we are unable to find that the court erred in concluding that
the sixth factor -- the availability of programs--also favored trans-
fer. Local programs were deemed likely to exclude Juvenile #1 on the
basis of the seriousness of the offense. The sole federal program about
which evidence was presented could only keep Juvenile #1 until his
twenty-first birthday, and we find no error in the court's finding that
five years would be an insufficient period for an effective rehabilita-
tion.

In the weighing of the various factors, the nature of the crime
clearly predominates. The record of the transfer proceedings demon-
strate that Juvenile #1 used his own gun in the carjacking. "[T]he seri-
ousness of the crime obviously can be given more weight than other
factors in determining whether there is a realistic chance of rehabilita-
tion . . ." Doe, 871 F.2d at 1248. We find no errors in the court's
conclusions,14 and we further find no abuse of discretion in the court's
ultimate decision that transfer would be in the interests of justice.
Accordingly, we affirm the order transferring Juvenile #1 to adult sta-
tus, and we remand for further proceedings.

AFFIRMED AND REMANDED
_________________________________________________________________

14 We note that there is a certain overlap between the factors underlying
the certification decision by the executive and those informing the trans-
fer decision by the court. In a case such as Juvenile #1's, much of the
basis for the executive's decision to certify on the basis of "a crime of
violence and a substantial federal interest" would also support a decision
to seek a transfer.

Conversely, in those cases where the decision to proceed in federal
court is based on the unavailability of adequate state programs and ser-
vices to "meet the needs of the juvenile," § 5032(2), it would be incon-
gruous in most cases for the executive to certify and then seek a transfer
to adult status on the basis of a "substantial federal interest," when such
transfer would have the effect of shifting the focus from the need to pro-
vide adequate treatment (the basis for being in federal court in the first
place) to punishment as an adult.

16
WILKINSON, Chief Judge, concurring in the judgment:

While I agree with the result reached by the majority, I cannot sub-
scribe to its reasoning. In my view, the government's certification
"that there is a substantial Federal interest in the case or the offense
to warrant the exercise of Federal jurisdiction," 18 U.S.C. § 5032, is
not subject to judicial review. The "substantial Federal interest"
inquiry is intended to channel prosecutorial discretion with respect to
juvenile defendants, and is the sort of executive determination that
should be immune from judicial oversight.

This conclusion follows directly from the language and structure of
section 5032. The statute provides that there shall be no federal pro-
ceedings against a juvenile "unless the Attorney General, after inves-
tigation, certifies . . . that there is a substantial Federal interest in the
case or the offense to warrant the exercise of Federal jurisdiction." Id.
Under a plain reading of this language, the only requirement is that
the Attorney General attest to a "substantial Federal interest" in fed-
eral adjudication; the statute contains no provision allowing for judi-
cial reassessment of the Attorney General's determination.

According to the majority, though, the "lack of a specific provision
addressing judicial review is in and of itself no bar to review." While
this may be true as a general matter, the absence of language authoriz-
ing judicial review is far more telling when, as is the case here, the
same statute expressly provides for judicial review of another ques-
tion. Section 5032 allows treating a juvenile as an adult upon "motion
to transfer of the Attorney General," but only"if [the] court finds,
after hearing, such transfer would be in the interest of justice." The
statute thus explicitly requires judicial review of the Attorney Gener-
al's motion for transfer, yet contains no provision for judicial review
of the Attorney General's certification of a "substantial Federal inter-
est." Presumably, the omission was deliberate, and verifies that Con-
gress did not intend judicial review of certification. See Russello v.
United States, 464 U.S. 16, 23 (1983) ("`Where Congress includes
particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.'")
(quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.
1972)).

17
In addition, section 5032 contains no standards by which to judge
a "substantial Federal interest." See United States v. Vancier, 515 F.2d
1378, 1380-81 (2d Cir.), cert. denied, 423 U.S. 857 (1975). The stat-
ute includes no definition of the term, and supplies no guidance as to
the central considerations. Again, this lack of criteria is in stark con-
trast to the provision requiring judicial review of a motion for transfer
to adult status: The statute enumerates six specific factors for courts
to weigh in determining whether transfer of a juvenile would be "in
the interest of justice,"1 and prescribes that those factors "shall be con-
sidered" and that "findings with regard to each factor shall be made."
18 U.S.C. § 5032. Congress would have supplied comparable stan-
dards with respect to a "substantial Federal interest" if it envisioned
judicial review of the Attorney General's certification.

Lacking such guidance, courts which venture to review the sub-
stantiality of the federal interest will adopt widely varying
approaches. Some courts might use a "federal nexus" test and require
that the charged offense involve federal property or a federal official.
Others might ask whether the conduct in question is proscribed by
federal law -- after all, anytime Congress enacts a criminal provision,
there conceivably is a significant federal interest in enforcing it. Here,
the majority has no difficulty finding a sufficient federal interest,
based apparently on the enactment of stiff federal penalties for car-
jacking and on the existence of six federal felony charges. Such an
inquiry, however, fails to provide meaningful standards for assessing
the degree of federal interest. How many federal crimes, for instance,
must a juvenile be charged with, and which federal offenses are suffi-
ciently "substantial?"

The statute does not answer these questions. The only explanation
of what suffices as a "substantial Federal interest in the case or the
offense" is that it should "warrant the exercise of Federal jurisdic-
tion." 18 U.S.C. § 5032. This language is suggestive of an intent to
_________________________________________________________________

1 The factors are: "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 juvenile's present intellectual development and
psychological maturity; the nature of past treatment efforts and the juve-
nile's response to such efforts; the availability of programs designed to
treat the juvenile's behavioral problems." 18 U.S.C. § 5032.

18
guide prosecutorial discretion, see Vancier, 515 F.2d at 1380-81, as
it alludes to the sort of case-specific policy determination that prose-
cutors must routinely make. United States v. W.P., Jr., 898 F. Supp.
845, 849-50 (M.D. Ala. 1995). For instance, given the breadth of the
mail fraud and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, prosecu-
tors must regularly make decisions as to which cases are sufficiently
serious to warrant a federal charge. See Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 502 (1985) (Marshall, J., dissenting) ("The only
restraining influence on the `inexorable expansion of the mail and
wire fraud statutes' has been the prudent use of prosecutorial discre-
tion.") (quoting United States v. Siegel, 717 F.2d 9, 24 (2d Cir. 1983)
(Winter, J., dissenting)).

"Indeed, the government's authority to certify that a given case
implicates a substantial federal interest is akin to the government's
authority to decide which cases to prosecute." United States v. Juve-
nile Male, 915 F. Supp. 789, 793 (W.D. Va. 1995). The two deci-
sions, in fact, involve precisely the same standard-- the U.S.
Attorneys' Manual prescribes that government attorneys undertake a
"substantial federal interest" inquiry when deciding whether to initiate
a federal prosecution:

In determining whether prosecution should be declined
because no substantial federal interest would be served by
prosecution, the attorney for the government should weigh
all relevant considerations, including:

1. Federal law enforcement priorities;

2. The nature and seriousness of the offense;

3. The deterrent effect of prosecution;

4. The person's culpability in connection with the offense;

5. The person's history with respect to criminal activity.

6. The person's willingness to cooperate in the investiga-
tion or prosecution of others; and

19
 7. The probable sentence or other consequences if the per-
son is convicted.

Department of Justice, U.S. Attorneys' Manual § 9-27.230(A)
(emphasis added). These sorts of prosecutorial judgments, the
Supreme Court has observed, are "particularly ill-suited to judicial
review. Such factors as the strength of the case, the prosecution's gen-
eral deterrence value, the Government's enforcement priorities, and
the case's relationship to the Government's overall enforcement plan
are not readily susceptible to the kind of analysis the courts are com-
petent to undertake." Wayte v. United States, 470 U.S. 598, 607
(1985). They are more appropriately left within the sole discretion of
the executive, as Congress sought to do here.

The majority's approach is fraught with mischief. Its reasoning
would require, in every juvenile proceeding in federal court, that the
district court fully reevaluate the government's reasons for invoking
a federal forum. The prospect of inter-branch conflict is apparent.
Suppose that the Attorney General believes that a particular case
involves sufficiently serious violations of the federal criminal code to
warrant federal adjudication. A district court, under the majority's
interpretation of section 5032, could repudiate the Attorney General's
policy determination by subjectively deciding that the case does not
merit a federal proceeding. Yet the court's decision would necessarily
be based on the sorts of considerations that the Supreme Court held
in Wayte are executive (not judicial) in nature. Id.; see United States
v. Armstrong, 64 U.S.L.W. 4305, 4308 (U.S. May 13, 1996)
("Judicial deference to the decisions of . . . executive officers rests in
part on an assessment of the relative competence of prosecutors and
courts" and "also stems from a concern not to unnecessarily impair
the performance of a core executive constitutional function.").

Moreover, executive determinations under other, similar statutory
provisions have been deemed outside the scope of judicial review.
Vancier, 515 F.2d at 1381. Examples include a judgment by the U.S.
Attorney under 18 U.S.C. § 6003 that compelling a witness to testify
is in the public interest, see Ullman v. United States, 350 U.S. 422,
431-34 (1956); United States v. Hooks, 848 F.2d 785, 802 (7th Cir.
1988), certification by the U.S. Attorney under 18 U.S.C. § 3731 that
an appeal from an adverse suppression ruling is not taken for pur-

20
poses of delay and involves evidence material to the proceedings, see
United States v. Kepner, 843 F.2d 755, 761 (3d Cir. 1988); In re
Grand Jury Investigation, 599 F.2d 1224, 1226 (3d Cir. 1979), and
certification by the Attorney General under 18 U.S.C. § 3503(a) that
the subject of a deposition to preserve testimony is believed to have
participated in organized crime, see United States v. Ricketson, 498
F.2d 367, 374 (7th Cir.), cert. denied, 419 U.S. 965 (1974); United
States v. Singleton, 460 F.2d 1148, 1154 (2d Cir. 1972), cert. denied,
410 U.S. 984 (1973).2

None of this calls into question our authority to review a certifica-
tion for compliance with the formal requirements of section 5032. See
United States v. C.G., 736 F.2d 1474, 1477 (11th Cir. 1984). But the
statute forecloses us from reexamining whether there exists a "sub-
stantial Federal interest in the case or the offense to warrant the exer-
cise of Federal jurisdiction." 18 U.S.C. § 5032. We have our job to
do under the statute, and the prosecutors have theirs. I would thus
hold, as did the district court, that the certification of a "substantial
Federal interest" is immune from judicial review.
_________________________________________________________________

2 The Supreme Court's decision in Gutierrez de Martinez v. Lamagno,
115 S. Ct. 2227 (1995), supporting judicial review of the Attorney Gen-
eral's certification under the Westfall Act that an employee was acting
within the scope of his employment, turned on concerns not at issue here.
Two considerations "weigh[ed] heavily" on the Court's decision -- that
the Attorney General argued in favor of judicial review of certification,
and that certification was "dispositive of a court controversy." Id. at
2231. Neither of these concerns exists here. See Juvenile Male, 915 F.
Supp. at 795; W.P., Jr., 898 F. Supp. at 850; see also United States v.
Tucker, 78 F.3d 1313, 1318-19 (8th Cir. 1996).

21