United States v. Wellington

United States Court of Appeals,

Eleventh Circuit.

No. 95-4525.

UNITED STATES of America, Plaintiff-Appellee,

v.

Rudolph WELLINGTON, Defendant-Appellant.

Dec. 31, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-6228-CR-DTKH), Daniel T.K. Hurley,
Judge.

Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, Senior
District Judge.

HANCOCK, Senior District Judge:

Rudolph Wellington appeals the district court's order

transferring him for prosecution as an adult, pursuant to 18 U.S.C.

§ 5032. On appeal, Wellington asserts that the district court

lacked jurisdiction to consider the motion to transfer, due to the

government's failure to file a proper certification, as required by

§ 5032. Additionally, Wellington argues that the Magistrate

Judge's findings, adopted by the district court, are legally

inadequate and clearly erroneous. We conclude that the district

court had jurisdiction to consider the § 5032 motion and that by

adopting the magistrate judge's report, the district court properly

applied the necessary legal factors resulting in factual findings

which are not clearly erroneous, and accordingly we affirm.

I.

On October 19, 1994 Donnell Cunningham was returning from

*
Honorable James H. Hancock, Senior U.S. District Judge for
the Northern District of Alabama, sitting by designation.
doing his laundry in his apartment complex close to 2:00 a.m.

Cunningham walked past two men with nothing being said. After

passing the men, Cunningham was shot in the back. Then one of the

men, who Cunningham identified as Wellington, moved in front of him

and shot him in the chest and in the stomach area. Once Cunningham

fell to the ground, the men rifled through his pockets, asked him

for his car keys, and left in Cunningham's vehicle. Four days

later Wellington was found driving Cunningham's car and was

arrested.

On December 13, 1994, Wellington was charged by information

with carjacking, in violation of 18 U.S.C. § 2119 and 2 (Count

One), and with use of a firearm during a crime of violence, in

violation of 18 U.S.C. § 924(c) (Count Two).1 Wellington qualifies

as a juvenile according to 18 U.S.C. § 5031.2 On December 15,

1994, Wellington was arrested. At the initial appearance

Magistrate Judge Seltzer appointed an attorney from the Public

Defender's Office and scheduled an arraignment and a detention

hearing. Both Wellington's counsel and the government submitted a

memorandum of law regarding the prosecution of juveniles under

1
On April 19, 1995 a superseding indictment was returned
which charges both Wellington and Lynden Joseph Scott with the
car jacking (Count I) and the use of a firearm during a crime of
violence (Count II).
2
"... [A] "juvenile' is a person who has not attained his
eighteenth birthday, or for the purpose of proceedings and
disposition under this chapter for an alleged act of juvenile
delinquency, a person who has not attained his twenty-first
birthday, and "juvenile delinquency' is the violation of a law of
the United States committed by a person prior to his eighteenth
birthday which would be a crime if committed by an adult or a
violation by such person of section 922(x)."

18 U.S.C. § 5031 (1996).
federal law.

On January 11, 1995, the government filed copies of juvenile

court records on the defendant and supplemented its filing by a

January 12, 1995 notice. The government also filed on January 11,

1995, a motion to transfer the proceedings against Wellington from

juvenile proceedings to adult status. In its motion, the

government set forth the following statements in support of its

request to prosecute Wellington as an adult:

II.

The defendant was nine days shy of his eighteenth
birthday when he committed the above offenses. Therefore, he
is considered a juvenile, according to Title 18, United States
Code, Section 5031 ... The offenses committed by the defendant
are crimes of violence as defined by title 18, United States
Code, Section 16.

III.

It would be in the interest of justice if this Court
would transfer the defendant for treatment as an adult for
federal criminal prosecution. The defendant was only nine
days from adulthood when he committed the offenses describe
herein and those offenses are proscribed by federal law.
Moreover, the seriousness of the offenses presents a
compelling federal interest in prosecuting the defendant as an
adult.

IV.

Authority to proceed with this motion to transfer has
been authorized by an officer of the Criminal Division of the
Department of Justice under the authority delegated to him by
the Attorney General of the United States, as evidenced by the
attachment to this motion which is made a part of this motion
for all purposes.

On January 25, 1995, United States District Judge Daniel Hurley

referred the matter to Magistrate Judge Anne E. Vitunac pursuant to

28 U.S.C. § 636(b).

On February 27, 1995, Magistrate Judge Vitunac conducted a

hearing on the motion to transfer. At the hearing, the government
presented three witnesses: (1) Special Agent Dale Taulbee of the

FBI; (2) Assistant State Attorney Jeff Driscoll; and (3) Dr. John

Spencer. Mr. Taulbee testified as to the nature and gravity of the

carjacking and provided information concerning the harm to the

victim of the carjacking. Wellington's attorney cross-examined

Taulbee concerning Wellington's previous criminal record. Mr.

Driscoll testified as to the available programs in the state

juvenile program and the conditions placed on Wellington following

previously reported acts of juvenile delinquency. Lastly, Dr.

Spencer, a licensed clinical psychiatrist who had examined

Wellington on behalf of the government, presented his opinions as

to Wellington's intellectual development, psychological maturity

and the results of his assessment as to any significant mental

disorder. Dr. Spencer determined that Wellington was of average or

slightly above average intelligence and had a degree of

sophistication in his dealings with others. According to Dr.

Spencer's analysis, Wellington did not suffer from a mental

disorder, but rather an antisocial personality disorder, causing

him to be egocentric, interested in short-term gain, and act in a

self-serving and sometimes impulsive fashion. Dr. Spencer also

testified that if Wellington did in fact shoot the victim twice in

an unprovoked setting, then he doubts that Wellington would be

controlled or rehabilitated by the state juvenile programs due to

the likelihood that similar behavior may reemerge and Wellington's

likely reaction to treatment methods would be to refuse cooperation

due to their "childish" or "Mickey Mouse" character.

Wellington presented Dr. Buxtel, a licensed clinical
psychologist who also examined Wellington. Dr. Buxtel testified

that based on his evaluations, Wellington's test results indicate

a borderline to below average range for his intellectual

performance. In Dr. Buxtel's opinion, Wellington's profile was

more favorable than unfavorable as to his potential for

rehabilitation. Finally, Wellington called his mother, Clovena

Minkah to testify. Wellington's mother testified about an incident

where she called the police because Wellington was jumping on her

car, after having broken his tape player and a figurine in her

home. Minkah testified that Wellington had been slow in school,

and had received no psychological treatment in the past.

Magistrate Judge Vitunac issued her report and recommendation

on March 13, 1995, concluding that the government's motion to

transfer was due to be granted. Wellington's counsel filed

objections to the report on March 16, 1995. On April 8, 1995,

Judge Hurley entered an order stating that after conducting a de

novo review of the evidence submitted as to the motion to transfer,

the court adopted Magistrate Judge Vitunac's report and

recommendation and ordered Wellington to be transferred to the

United States District Court for prosecution as an adult.

Wellington filed a notice of appeal on April 14, 1995, appealing

the court's April 8, 1995 order.

II.

This court has jurisdiction to review the district court's

order transferring Wellington to adult status under § 5032, based

on the collateral order exception set forth in Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528
(1949). United States v. C.G., 736 F.2d 1474, 1476-77 (11th

Cir.1984); See also United States v. Angelo D., 88 F.3d 856, 858

& n. 1 (10th Cir.1996) (citing other circuits in agreement).

There are two different certification requirements under 18

U.S.C. § 5032 for juvenile delinquency proceedings in the federal

district courts: (1) a "need certification" provision, requiring

that the Attorney General certify that there is a need for

proceedings to take place in federal rather than state court; and

(2) a "record certification" provision, requiring the delivery of

proper juvenile court records to the federal court or certification

by the juvenile court that there are no such records. 18 U.S.C. §

5032 (1996); United States v. Doe, 13 F.3d 302, 303 (9th

Cir.1993). In this case, Wellington challenges only the

sufficiency of the "need certification.3"

"Certification is a jurisdictional requirement." United

States v. Baker, 10 F.3d 1374, 1396 (9th Cir.1993), cert. denied,

--- U.S. ----, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994). Compliance

with the jurisdictional prerequisites of § 5032, including the need

certification, is necessary for federal court jurisdiction to

exist. United States v. Angelo D., 88 F.3d 856, 859 (10th

Cir.1996); United States v. Doe, 49 F.3d 859, 866 (2d Cir.1995);

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

States v. Chambers, 944 F.2d 1253, 1259 (6th Cir.1991), cert.

denied, 502 U.S. 1112, 112 S.Ct. 1217, 117 L.Ed.2d 455 (1992);

United States v. Juvenile Male, 923 F.2d 614, 618 (8th Cir.1991).

3
Defendant has presented no challenges on appeal to the
record certification filed in this case.
"If the Attorney General does not so certify, such juvenile shall

be surrendered to the appropriate legal authorities of such State."

18 U.S.C. § 5032 (1996).

This court's scope of review as to certifications is narrow.

United States v. C.G., 736 F.2d 1474, 1477 (11th Cir.1984). The

need certification is reviewable by this court for compliance with

the requirements of section 5032. C.G., 736 F.2d at 1477.

"Normally ... the court may not inquire into the correctness of the

statements made in the certification. Indeed, such an inquiry is

appropriate only when the juvenile has established bad faith on the

part of the government." Id. at 1477-78. In other words, this

Circuit has adopted "a general rule insulating certifications from

review" based on the absence of any authority for judicial review

of such certifications or procedures to conduct such a review in §

5032 and the employing of prosecutorial discretion in making such

determinations. Id.; See also United States v. Welch, 15 F.3d

1202, 1207 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct.

1863, 128 L.Ed.2d 485 (1994). ("Notwithstanding several amendments

expanding the role of the courts, the FJDA [Federal Juvenile

Delinquency Act] continues to impart considerable prosecutorial

discretion as to whether an accused will be tried as an adult ...")

This court will not question the certification's accuracy. United

States v. C.G., 736 F.2d 1474, 1478 (11th Cir.1984).

In reviewing the need certification to determine if it

complies with the requirements of section 5032, this court is

inherently interpreting the statute and must apply a de novo

standard. United States v. Angelo D., 88 F.3d 856, 859 (10th
Cir.1996). Wellington alleges in his brief that the certification

is inadequate to provide jurisdiction because: (1) there was no

separate document designated as a "certification" to satisfy the

requirements of § 5032 and (2) the motion to transfer only alleges

"a compelling federal interest in prosecuting the defendant as an

adult" and does not certify a substantial Federal interest in the

case or the offense. Although Wellington did not challenge the

sufficiency of the certification below, because this issue relates

to the jurisdiction of a federal court to hear these claims, we

will consider it for the first time on appeal. See Glickstein v.

Sun Bank/Miami, N.A., 922 F.2d 666, 672, n. 12 (11th Cir.1991).

Wellington argues that simply including the information that

the Attorney General is required to certify in the motion to

transfer was insufficient to comply with the requirements of § 5032

and provide the district court with jurisdiction over the motion to
4
transfer. Neither Wellington nor the government has identified

for the court any case where this issue was expressly addressed.

When faced with challenges to the need certification, courts

have demonstrated flexibility. United States v. Wong, 40 F.3d

1347, 1369 (2d Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct.

190, 133 L.Ed.2d 127 (1995). Courts have refused to allow

jurisdiction to be defeated by a technicality or ministerial act

4
While the issue was not expressly addressed, the United
States appeared to be relying on the information in its motion to
transfer to satisfy the certification requirement of § 5032 in
United States v. Doe, 871 F.2d 1248 (5th Cir.), cert. denied, 493
U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257 (1989), and the Fifth
Circuit Court of Appeals approved the motion to transfer as
following the necessary procedural requirements to allow the
prosecution of a juvenile as an adult.
related to the certification requirement of § 5032. United States

v. Angelo D., 88 F.3d 856, 860 (10th Cir.1996) (citing opinions by

other appellate courts). Rather, if the purpose of the

certification requirement has been satisfied by an authorized

person making the decision to file the motion to transfer, then

"technical failure in filing is not fatal to jurisdiction." United

States v. Doe, 871 F.2d 1248, 1257 (5th Cir.), cert. denied, 493

U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257 (1989) (quoting United

States v. Parker, 622 F.2d 298, 307 (8th Cir.), cert. denied sub

nom. Ward v. United States, 449 U.S. 851, 101 S.Ct. 143, 66 L.Ed.2d

63 (1980)).

It is undisputed that the motion to transfer was signed by

the United States Attorney for the Southern District of Florida,

Kendall Coffey, and had an attachment consisting of a letter from

Terry R. Lord, Acting Chief General Litigation and Legal Advice

Section of the Criminal Division for the Department of Justice,

authorizing Coffey to seek the transfer on behalf of the Attorney

General, pursuant to 28 C.F.R. § 0.57. Therefore, the motion

itself demonstrates that an authorized person made the decision to

file the motion to transfer in this case. While the practice of

filing a separate document providing the certification required by

§ 5032 is preferable to including such information in the motion to

transfer, the mere technicality of using one document as opposed to

two is not sufficient to defeat jurisdiction.

Likewise, while it provides more clarity and less ambiguity

for the United States Attorney to repeat the exact language in the

statute and certify that the offense charged is a crime of violence
that is a felony and "that there is a substantial Federal interest

in the case or the offense to warrant the exercise of Federal

jurisdiction," the language in the government's motion to transfer

is sufficient to constitute the necessary certification as required

by § 5032. Based on the foregoing, we conclude that the statements

set forth in the motion to transfer adequately served as the

certification required by § 5032 and thereby provided the district

court with jurisdiction over the motion to transfer.

Wellington challenges the sufficiency of the magistrate

court's findings on the factors set forth in § 5032 for

consideration in a motion to transfer. According to Wellington,

the magistrate court's findings, adopted by the district court,

were insufficient to meet the requirements of § 5032 because: (1)

the magistrate judge failed to explain why factors supported

prosecution as an adult; (2) the report fails to discuss whether

a transfer is in the interest of justice; and (3) the findings are

too brief and general.

Pursuant to § 5032, the district court is required to

consider evidence as to six factors listed in the statute and

determine if the transfer is in the interest of justice.5 18

5
Section 5032 describes the factors to be considered in a
motion to transfer as follows:

Evidence of the following factors shall be considered,
and findings with regard to each factor shall be made
in the record, in assessing whether a transfer would be
in the interest of justice: 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 juvenile's
response to such efforts; the availability of programs
U.S.C. § 5032 (1996). "In order to transfer for prosecution as an

adult, the district court must make findings which are sufficient

to satisfy the requirements of section 5032 and to enable the court

of appeals to review the interest-of-justice determination." C.G.,

736 F.2d at 1478. Upon review of the magistrate judge's report,

this court concludes that it provides an adequate summary of the

underlying evidence considered. The report addresses each factor

that the court was required to consider and states whether that

factor weighs in favor of or against the transfer.

Section 5032 simply requires a finding on the record as to

each factor, but does not require that the magistrate judge state

specifically whether each factor weighed for or against the

transfer. United States v. Three Male Juveniles, 49 F.3d 1058,

1061 (5th Cir.1995). Furthermore, the procedure established by

section 5032 does not require that a district court or magistrate

judge provide any explanation as to why it treated any particular

finding as weighing in favor of or against transfer.

While section 5032 expressly requires a finding on the record

as to each factor considered in the interest of justice

determination, it does not require the district court to expressly

state a finding that the transfer was "in the interest of

justice."6 In the report, the magistrate judge considered and made

designed to treat the juvenile's behavioral problems.

18 U.S.C. § 5032 (1996).
6
Cf. United States v. E.K., 471 F.Supp. 924, 932
(D.Or.1979), ("Denial of a motion to transfer does not require a
finding that the transfer would not serve the interest of
justice.")
findings regarding each factor and the statute does not require

more. United States v. T.F.F., 55 F.3d 1118, 1122 (6th Cir.1995);

United States v. Doe, 871 F.2d 1248, 1254 (5th Cir.), cert. denied,

493 U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257 (1989).

The magistrate court's report in this case cannot be treated

as being similarly deficient to the district court's order in

United States v. C.G., 736 F.2d 1474 (11th Cir.1984). The order in

C.G. was described by this court as devoid of any consideration as

to two of the statutory factors and as treating the factors

addressed in only a one sentence, summary fashion. 736 F.2d at

1479. In this case, the magistrate court's report is over nine

pages long and manifests appropriate consideration of the evidence

presented at the hearing with specific findings on each statutory

factor. Based on our review of the magistrate court's report,

adopted in full by the district court, we conclude that the

findings adequately comply with the requirements of § 5032.

Finally, Wellington challenges the factual findings in the

magistrate court's report as being clearly erroneous. In his

brief, Wellington requests that this court second guess the

district court's weighing of certain information and find the basis

for the factual findings as to his intellectual development and

physiological maturity as well as the availability of treatment

programs to be in error.

"The "interest of justice' analysis gives the district court

broad discretion." United States v. Doe, 871 F.2d 1248, 1252 (5th

Cir.), cert. denied, 493 U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257

(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.' " United States v. Three Male Juveniles, 49 F.3d 1058,

1060 (5th Cir.1995). As long as the court has considered all six

of the factors listed in the statute, then "its decision to

transfer a juvenile defendant to adult status is reviewable only

for abuse of discretion." United States v. Doe, 49 F.3d 859, 867

(2d Cir.1995); United States v. Doe, 871 F.2d 1248, 1255 (5th

Cir.), cert. denied, 493 U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257

(1989).

"A court is certainly not required to weigh all statutory

factors equally." United States v. Doe, 871 F.2d 1248, 1255 (5th

Cir.), cert. denied, 493 U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257

(1989). A court may weigh the statutory factors as it deems

appropriate and "is free to determine how much weight to give each

factor." United States v. T.F.F., 55 F.3d 1118, 1120 (6th

Cir.1995); United States v. Juvenile Male No. 1, 47 F.3d 68, 71

(2d Cir.1995); United States v. A.R., 38 F.2d 699, 705 (3d

Cir.1994); United States v. Doe, 871 F.2d at 1255.

Wellington argues that the magistrate judge's findings give

too much weight to the seriousness of the offense. Many courts

have held that a district court is entitled to give more weight to

the seriousness of the offense than to other factors when

determining the realistic chance for rehabilitation. United States

v. One Juvenile Male, 40 F.3d 841, 845 (6th Cir.1994); United

States v. A.R., 38 F.3d 699, 705 (3d Cir.1994); Doe, 871 F.2d at

1255. In a factually similar case, United States v. A.R., 38 F.3d
699, 705 (3d Cir.1994), the Third Circuit Court of Appeals affirmed

a district court's decision to give great weight to the violent

felony of carjacking and the use of a semi-automatic pistol to

threaten the victim. Similarly, in this case Wellington is accused

of carjacking and using a firearm to wound and paralyze a victim.

We agree that the seriousness of an offense such as the those

charged in this case, carjacking and use of a weapon, can be given

great weight and the magistrate court's findings were not clearly

erroneous due to the strong reliance on this factor.

Wellington also challenges the magistrate court's according

significant weight to his chronological age in its report. The

statute expressly provides for consideration of "the age and social

background of the juvenile." 18 U.S.C. § 5032 (1996). 7 The fact

that Wellington was merely nine days shy of his eighteenth birthday

when the alleged offense was committed contributes an important

facet to the interest of justice equation. Therefore, we conclude

that since the district court has discretion to weigh all statutory

factors, including age, in whatever manner it deems appropriate, it

did not err by focusing on Wellington's age.

7
Other appellate courts have affirmed the decision by a
district court to transfer a juvenile where the chronological age
was relied on. For example, the district court noted that the
defendant was "seventeen years and ten months when the crimes
were allegedly committed" as supporting the transfer in United
States v. T.F.F., 55 F.3d 1118, 1120 (6th Cir.1995). Also, in
United States v. Doe, 49 F.3d 859, 867 (2d Cir.1995), the
district court found that the age factor supported transfer
because "Doe was approximately 161/2 years old at the time of the
Georgia jewelry store robbery and 17 at the time of the New York
electronics firm extortions" and continued to engage in acts
involving a gang up to a year short of his eighteenth birthday.
Therefore, the court concluded that the conduct with which Doe
was charged "did not occur ... when he was very young." Doe, 49
F.3d at 867.
 After reviewing for abuse of discretion the magistrate court's

findings, which were adopted fully by the district court, we

conclude that there was no abuse of discretion in this matter.

III.

Based on the foregoing, we have determined that the

information in the motion to transfer provided the district court

with jurisdiction to consider the motion to transfer. Upon review

of the findings as to the motion, we conclude that the report

satisfies the requirements of 18 U.S.C. § 5032 and find none of the

factual findings to be clearly erroneous. Therefore, the district

court's decision to transfer Wellington to adult status for

prosecution is AFFIRMED.