United States v. Three Male Juveniles

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40227
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

THREE MALE JUVENILES,

Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Texas

(March 29, 1995)

BEFORE JONES, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This is an interlocutory appeal1 of a district court order

transferring three male juvenile defendants ("appellants") for

prosecution as adults pursuant to Title 18 U.S.C.A. § 5032.

Rejecting appellants' attack on the interlocutory order, we affirm.

1
This court has jurisdiction to review an order transferring juveniles
for prosecution as adults. See United States v. Bilbo, 19 F.3d 912.
 FACTS AND PROCEDURAL HISTORY

On January 14, 1994, this proceeding in the federal district

court was initiated when the government filed a three-count

complaint charging each of the three juvenile appellants with the

following offenses: conspiracy to unlawfully take a motor vehicle

while possessing a firearm in violation of 18 U.S.C. § 371;

unlawful taking of a motor vehicle while possessing a firearm in

violation of 18 U.S.C. § 2111; and, possession of a firearm during

a crime of violence in violation of 18 U.S.C. §§ 924(c)(1) and 2.

The underlying facts as alleged in the criminal complaint are

as follows. Juvenile #1, 17 years of age, Juvenile #2, 16, and

Juvenile #3, 15, decided to obtain a vehicle by force in Marshall,

Harrison County, Texas, drive it to California, and then liquidate

the vehicle to obtain funds to purchase crack cocaine, which they

then intended to sell for a profit. Agreeing on a victim, the

three individuals duped Susan Vanorden into giving them a ride in

her car on the evening of November 25, 1993. Then, using a .22

caliber rifle, which Juvenile #3 had previously stolen from his

father, the three individuals forced Vanorden from behind the

wheel, took her to a secluded area, shot her once in the arm, and,

when the rifle misfired, beat her to death with it.

The record further reveals that the juveniles then picked up

two acquaintances and, while headed to California after disposing

of the rifle, were taken into custody in a nearby county in Texas

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on November 26, 1993, following a police chase which resulted in

the crash of Vanorden's car.

The juveniles were taken into federal custody on January 18,

1994, and on their initial appearance that same date the government

filed as to each juvenile certifications to proceed under the

Juvenile Justice and Delinquency Act ("Act"), 18 U.S.C. § 5031 et

seq. Additionally, the government filed its "Motion to Transfer

Proceedings Against Juveniles to Adult Criminal Prosecution",

pursuant to § 5032 of the Act on said date.

Upon the filing of the government's transfer notice, the

district court ordered each juvenile to undergo a psychiatric

examination regarding their intellectual development and

psychological maturity pursuant to § 5032 of the Act. After the

district court received the psychological evaluations of each

juvenile and conducted detention and probable cause hearings, all

three juveniles moved to dismiss the charges for violations of

their rights to a speedy trial under the Act, and to strike the

certification. After a three-day hearing that began on February

17, 1994, the district court rejected the juveniles' attack on the

certification and granted the government's motion to transfer the

proceedings of the juveniles for prosecution as adults.

Additionally, the motions for dismissal on the speedy trial

provision (§ 5036) of the Act were denied. Each of the appellants

makes similar attacks on the transfer order which we address below.

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 THE DISTRICT COURT'S FINDINGS
AND THE EVIDENCE IN SUPPORT THEREOF

The decision whether to transfer a juvenile for adult

prosecution pursuant to 18 U.S.C. § 5032 is committed to the sound

discretion of the trial court, "provided the court employs and

makes findings as to the six criteria outlined in", § 5032. Bilbo,

19 F.3d at 915. "The guiding principle in transfer proceedings is

whether a transfer would be in the interest of justice." Id.

Section 5032 requires a district court to consider the

following factors: (1) the juvenile's age and social background;

(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; and (6) the availability of programs designed to treat the

juvenile's behavioral problems. Bilbo 19 F.3d 915.

While all six factors must be considered, the court "is

certainly not required to weigh all statutory factors equally."

U.S. v. Doe, 871 F.2d 1248, 1254-55 (5th Cir.), cert.denied, 493

U.S. 917 (1989). In conducting the six-factor analysis, the

district court acts as the finder of fact, and any credibility

choices made regarding factual findings "cannot be overturned

unless clearly erroneous." Id. at 1255.

All three appellants contend that the district court failed to

make specific findings regarding whether each factor weighed for or

against transfer, or was neutral. Each appellant also alleges that

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the evidence was insufficient to support the district court's

findings regarding each factor.

The district court made specific findings of fact and

conclusions of law with regard to each appellant and each of the

six factors. The appellants' arguments that the district court was

required to state specifically whether each factor weighed for or

against a particular appellant or was neutral is without support.

The provisions of the Juvenile Justice Delinquency Act do not

require such statement, nor are we directed to any federal court

decision that requires such statements by the district court. Such

specificity is not required.

The appellants' arguments that the district court's factual

findings are without an evidentiary basis is also unavailing. The

district court conducted a transfer hearing spanning three days

which is replete with evidence supporting the trial court's

findings.

Dr. William Gold, a psychiatrist, conducted court-ordered

psychological examinations of Juveniles #2 and #3, but was unable

to examine Juvenile #1 due to his attorney's objection. Dr. Gold

testified that Juvenile #2 was of low-average intelligence and had

psychological maturity compatible with his age in addition to

"street smarts". Likewise, Dr. Gold testified that Juvenile #3 was

of average intelligence, possessed psychological maturity

compatible with his age and was "street smart". Although he did

not conduct any psychiatric testing on Juvenile #1, he testified

that such juvenile was "within normal range" of intellectual

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development "appropriate for [Juvenile #1's] age level". Dr. Gold

further testified that all three juveniles were beyond

rehabilitative efforts. His testimony corresponds with the

district court's factual findings.

The district court also heard testimony from all three

juveniles' school officials. Juvenile #3's assistant principal,

James Willey, testified that Juvenile #3 was expelled from high

school two weeks before the car-jacking/murder and, prior to that,

had multiple violations of school rules, excessive tardiness and

absences, and numerous incidents of violence including fighting,

possession of brass knuckles, and kicking a student's teeth out.

Willey also testified regarding Juvenile #2, that his school

disciplinary problems began in the seventh grade. Juvenile #2 had

a "long history of problems," including detention, 22 unexcused

tardies, fighting, assaultive behavior, and trespass. Willey

testified that he felt that neither Juvenile #3's nor Juvenile #2's

parents, nor the school, could control them.

Juvenile #1's high school principal, Luther Cockerham,

testified that Juvenile #1 was "a very mature individual" and that

he had "above average" intelligence. He also testified that he was

aware of an incident in which Juvenile #1 assaulted the murder

victim, Vanorden, during school. Cockerham also testified

regarding Juvenile #1's student records, and, also with respect to

such juvenile, about a number of incidents of scuffling, assaults,

fighting, threatening to kill a teacher, and carrying a knife at

school. Juvenile #1 was ultimately expelled for the remainder of

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the school year. The district court's fact findings regarding all

three appellants' school-related activities and behavior are

supported by Cockerham's and Willey's testimony.

The district court also heard testimony from juvenile

authorities regarding all three appellants. Carl Long testified

that Juvenile #1 had three previous criminal adjudications,

including assault and terroristic threat, had been convicted of

violating juvenile probation and the unlawful use of a motor

vehicle, and had been charged with criminal trespass, evading

arrest, and burglary of a habitation. Long testified that

probation had no effect on Juvenile #1, and that he had not seen

"one thing" that would indicate that Juvenile #1 was capable of

being rehabilitated. The record further reveals Juvenile #1's two-

year stay in a residential facility for his misconduct had failed

to rehabilitate him.

Long also testified that Juvenile #3 had a prior juvenile

record, including an arrest and conviction for conspiracy to

deliver a controlled substance, was charged twice for evading

arrests, had three curfew violations, four probation violations,

and was charged with indecent exposure. Juvenile #3 was also a

runaway, and had stolen his father's gun which was used in the

underlying offense.

Martha Whisenhunt, a juvenile probation officer for Harrison

County, Texas, testified that Juvenile #2 had been placed on formal

and informal probation which he had violated numerous times, he was

suspected of a number of burglaries, had resisted arrest, and had

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been arrested for theft. Whisenhunt also testified that she was

aware of an incident in which Juveniles #2 and #3 threatened to

kill a number of staff members at the juvenile detention center.

Long and Whisenhunt's testimony supports the district court's

factual findings regarding the appellants' prior delinquency

records and past treatment efforts.

All three appellants also argue that the district court

incorrectly determined they could not be rehabilitated. Such a

contention misapprehends the nature of the transfer proceeding and

ignores their individual responses to probation. "[W]hile

rehabilitation is a priority, the courts are not required to apply

the juvenile justice system to a juvenile's diagnosed intellectual

or behavioral problems when it would likely prove to be nothing

more than a futile gesture." Bilbo, 19 F.3d at 916. The

appellants' performances while on probation demonstrate that their

potential for rehabilitation in the juvenile system is poor.

Because the district court properly applied, and made findings with

respect to, the six-factor test and because its factual findings

are supported by the record, the district court did not err in

concluding that each of the three appellants should be transferred

for adult prosecution. Given the violent and serious nature of the

offenses and the evidence and findings regarding the other factors

such as the unsuccessful past treatment efforts, the district court

could hardly help but order transfer. Certainly no abuse of

discretion occurred.

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 CERTIFICATION BY THE ATTORNEY GENERAL

Section 5032 of 18 U.S.C. reads, in pertinent part:

A juvenile alleged to have committed an act of
juvenile delinquency shall not be proceeded
against in any court of the United States
unless the Attorney General, after
investigation, certifies to an appropriate
district court of the United States that the
juvenile court or other appropriate court of a
State (1) does not have jurisdiction or
refuses to assume jurisdiction over said
juvenile with respect to such alleged act of
juvenile delinquency, or (2) does not have
available programs and services adequate for
the needs of juveniles.

If the Attorney General does not so certify,
such juvenile shall be surrendered to the
appropriate legal authorities of such State.

All three appellants contend that the district court erred by

denying their motions to strike certification, asserting that the

government failed to comply with § 5032 by failing to submit a

properly certified petition to the district court. The crux of all

three arguments is that because the current Attorney General, Janet

Reno, did not delegate the authority to prosecute the case for

adult prosecution, certification was improper. We disagree.

The government filed a motion entitled Certification to

Proceed Under the Juvenile Justice and Delinquency Act, attached to

which was a 1985 memorandum to all U.S. Attorneys from the then

Assistant Attorney General - Criminal Division delegating authority

to, inter alia, prosecute juveniles as adults. Such a delegation

was authorized by an outstanding order of a previous Attorney

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General and is contained in the Code of Federal Regulations. It

provides as follows:

The Assistant Attorney General in charge of
the Criminal Division and his Deputy Assistant
Attorneys General are each authorized to
exercise the power and authority vested in the
Attorney General by sections 5032 and 5036 of
Title 18, United States Code, relating to
criminal proceedings against juveniles. The
Assistant Attorney General in charge of the
Criminal Division is authorized to redelegate
any function delegated to him under this
section to United States Attorneys and to the
Chief of the Section within the Criminal
Division which supervises the implementation
of the Juvenile Justice and Delinquency
Prevention Act (18 U.S.C. § 5031 et seq.).

28 CFR 0.57.

This order is authorized and within the scope of the powers of

the Attorney General under 28 U.S.C. § 510.2 United States v.

Cuomo, 525 F.2d (5th Cir. 1976).

It is clear that the certificate was properly authorized and

we reject appellants' argument that the delegation made by the

previous Attorney General is not applicable to allow the instant

certifications. The power provided the Attorney General by 28

U.S.C. § 510 is made to the office of the Attorney General and not

to the individual holding office. Grand Jury v. United States, 420

F.2d 1201 (7th Cir. 1970).

We note additionally that the U. S. Attorney, Ruth Yeager, for

the Eastern District of Texas, from whence this lawsuit emanated,

2
Title 28 U.S.C. 510 provides as follows: The Attorney
General may from time to time make such provisions as he
considers appropriate authorizing the performance by any other
officer, employee, or agency of the Department of Justice of any
function of the Attorney General.

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requested and received authorization from Mary Spearing, Chief,

General Litigation and Legal Advice Section, Criminal Division,

Department of Justice, to prosecute the three juveniles. This

exact procedure was previously challenged, and its use affirmed, by

this court. See Doe, 871 F.2d at 1256-57. The district court

properly denied the appellants' motions to strike certification.

THE SPEEDY TRIAL
CLAIM UNDER SECTION 5036

On February 8, 1994, 21 days after the information was filed

in the district court, and 21 days after the appellants were taken

into custody by federal officials, appellants each filed a motion

to dismiss pursuant to § 5036 of the Act. Section 5036 provides as

follows:

If 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 or 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.

Each of the appellants contend, as they did before the

district court, that the 30-day period provided for in § 5036

commenced on November 26, 1993, when the state authorities arrested

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and detained them pending state charges. If the date of their

detention by state authorities does in fact commence the 30-day

period, they contend that they were entitled to a dismissal of the

federal information filed against them. In U.S. v. John Doe, 882

F.2d 926 (5th Cir. 1989), this court determined that the speedy

trial period under § 5036 commences when a juvenile is arrested and

taken into physical custody. Id. at 928-929. However, the arrest

and physical detention of the appellant in John Doe was made by

federal authorities. Thus, we were not called upon to consider

whether a detention by state authorities would commence the 30-day

period. The question squarely presented in this appeal (and which

we have not previously determined), is whether an arrest solely by

state authorities pending state charges starts the § 5036 speedy

trial period. We hold that it does not. A reading of § 5032

previously referred to in this opinion clearly reveals Congress'

intent to limit the circumstances under which federal courts would

entertain cases alleging violation of criminal statutes by

juveniles. Nonetheless, Congress specifically authorized the U.S.

Attorney to certify to circumstances under which the Attorney

general could maintain an action in the federal district courts.

By filing such a certificate, the Attorney General is not required

to surrender a juvenile to state authorities. Clearly the Act

contemplates federal action and detention by federal officials.

Section 5036 makes no mention of a state detention nor are we

inclined to insert a provision for state detention into the speedy

trial provisions of the Act. Were we to determine that a state

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detention by state officers commences the speedy trial provisions

of § 5036, we would in effect destroy the authority of the Attorney

General to make those certifications which Congress clearly

provided to allow a proceeding to be maintained in a federal

district court. Such a holding would thwart the federal

jurisdiction in actions that Congress determined could be

maintained in the federal courts. It seems readily apparent that

the detention pending trial referred to in § 5036 refers to a

detention pending a federal trial, not a state trial.

In this case, the certifications provided both that (1) there

is a substantial federal interest in the case to warrant the

exercise of federal jurisdiction due to the extreme serious nature

of the crime, the brutality of the crime which resulted in the

death of the victim, and the fact that the appellants used a

firearm which had previously travelled in interstate commerce to

commit their offense, and (2) the State of Texas does not have

available programs and services adequate for the needs of the

appellants. The Attorney General thus certified to two of three

circumstances which Congress provided would allow a juvenile to be

detained in federal authorities pending adjudication by a federal

district court. Congress did not provide and could not have

intended that the provisions it enacted to allow federal court

action could be stripped away by a state arrest and detention.

Accordingly, we hold that the 30-day period under § 5036

commences with an arrest and physical detention by federal

authorities.

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 Additionally, we note with approval the reasoning of the Tenth

Circuit which also held that detention under § 5036 begins when a

juvenile defendant is taken into federal custody. U.S. v. Doe, 642

F.2d 1206 (10th Cir. 1981).

For the foregoing reasons, we AFFIRM the order of the district

court transferring appellants for prosecution as adults.

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