18‐1909‐cr
United States v. Juvenile Male
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 3rd day of December, two thousand nineteen.
PRESENT: JOHN M. WALKER, JR.,
GERARD E. LYNCH,
RICHARD J. SULLIVAN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 18‐1909‐cr
JUVENILE MALE,
Defendant‐Appellant.
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FOR APPELLANT: GERALD J. DI CHIARA, The Law Offices of
Gerald Di Chiara, New York, NY.
FOR APPELLEE: PAUL G. SCOTTI, Assistant United States
Attorney (Susan Corkery, John J. Durham,
Assistant United States Attorneys on the brief),
for Richard P. Donoghue, United States
Attorney for the Eastern District of New
York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Joseph F. Bianco, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐Appellant Juvenile Male (“Defendant”) appeals from an order of
the United States District Court for the Eastern District of New York (Bianco, J.)
granting the government’s motion pursuant to 18 U.S.C. § 5032 to transfer his case
to district court in order to prosecute him as an adult. In July 2017, the government
charged Defendant with one count of racketeering by engaging in conspiracy to
murder and murder, in violation of 18 U.S.C. § 1962(c); one count of racketeering
conspiracy, in violation of 18 U.S.C. § 1962(d); one count of conspiracy to commit
murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); and four counts
of murder in aid of racketeering, in violation of 18 U.S.C. §§ 2, 1959(a)(1). After a
hearing at which the district court considered the government’s motion to prosecute
Defendant as an adult, the district court issued a detailed, 17‐page opinion that
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scrupulously considered the relevant factors pursuant to 18 U.S.C. § 5032 and
granted the government’s motion. We assume the parties’ familiarity with the
underlying facts and prior record of proceedings, to which we refer only as
necessary to explain our decision to affirm.
“The determination of whether to transfer an action is committed to the
discretion of the district court, and will be disturbed only where this Court finds an
abuse of that discretion.” United States v. Juvenile Male No. 1, 47 F.3d 68, 71 (2d Cir.
1995). A district court abuses its discretion when it makes an error of law, such as
failing to make required factual findings; when the facts it finds are clearly
erroneous; or when its conclusion cannot be located within the range of permissible
decisions. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008); see also United
States v. Nelson, 68 F.3d 583, 588 (2d Cir. 1995).
“A juvenile fifteen years of age or older who is ‘alleged to have committed an
act after his fifteenth birthday which if committed by an adult would be a felony
that is a crime of violence’ may be proceeded against as an adult where a district
court, after a transfer motion by the Attorney General, finds that it is ‘in the interest
of justice’ to grant a transfer.” Id. (quoting 18 U.S.C. § 5032). In making this
determination, the district court must consider the following six factors: “the age
and social background of the juvenile; the nature of the alleged offense; the extent
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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 juvenile’s response to such efforts; [and] the availability of programs
designed to treat the juvenile’s behavioral problems.” 18 U.S.C. § 5032. The district
court must make findings on the record with regard to each factor. Id. Importantly,
“[t]he six statutory factors need not be accorded equal weight by the district court,
which may balance the factors in any way that seems appropriate to it.” Nelson, 68
F.3d at 588. “[W]hen a crime is particularly serious, the district court is justified in
weighing this factor more heavily than the other statutory factors.” Id. at 590. The
appellant bears a “heavy burden” in seeking to overturn a decision to transfer based
on a district court’s balancing of the six factor test pursuant to 18 U.S.C. § 5032; we
are unaware of any case in which we have done so. See Juvenile Male No. 1, 47 F.3d
at 71.
On appeal, Defendant argues that the district court abused its discretion by
making erroneous findings of fact, using a “bright line test” for murder charges,
and ordering the transfer against the weight of evidence. But the district court did
no such thing. The district court carefully addressed each factor as it applied to
Defendant, made factual findings for each, and ultimately determined that, on
balance, transfer was warranted. Defendant fails to point to any findings of fact
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unsupported by the record. Nor has Defendant shown that the district court
otherwise abused its discretion. Contrary to Defendant’s argument, the district
court did not apply a bright line or per se test, but conscientiously considered each
factor as required under 18 U.S.C. § 5032. And while the court did afford more
weight to the seriousness of the offense than to the other factors, this was not an
abuse of discretion since the alleged crimes include intentional murder, and the
district court is permitted to weigh this factor more heavily than the other statutory
factors. Under these circumstances, we will not second‐guess the reasonable
discretion of the district court.
We have considered the rest of Defendant’s arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court. The
parties are directed to advise the Clerk of Court no later than fifteen days from the
date of this order, by letter briefs not to exceed three single‐spaced pages, as to
which, if any, of the previously sealed filings in this case may be unsealed (with or
without redaction).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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