FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-30206
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-00442-
BR-1
J.J., JUVENILE MALE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
November 9, 2012—San Francisco, California
Filed January 9, 2013
Before: Ronald M. Gould and Milan D. Smith, Jr.,
Circuit Judges, and Kevin T. Duffy, District Judge.*
Opinion by Judge Gould
*
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
2 UNITED STATES V . JUVENILE MALE
SUMMARY**
Criminal Law
The panel affirmed the district court’s order granting the
government’s motion to transfer juvenile proceedings for
adult prosecution under 18 U.S.C. § 5032 in a case in which
the defendant is charged with second-degree murder and
using a firearm during a crime of violence.
Agreeing with sister circuits that a psychological
evaluation is not a prerequisite to approving a transfer
motion, the panel held that the district court did not abuse its
discretion in making a finding about the defendant’s
intellectual development by relying solely on lay-witness
testimony. The panel also held that although the district court
did not explicitly address the staff-to-offender ratio or
specific counseling programs, the district court did not abuse
its discretion in making findings about the treatment
programs available at adult and juvenile facilities where the
defendant might serve any sentence imposed.
The panel wrote that the district court consistently
presumed for purposes of the transfer decision that the
defendant would be convicted of one or both charges, and
that the presumption of guilt for this purpose does not violate
the defendant’s due-process rights.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . JUVENILE MALE 3
COUNSEL
Steven J. Sherlag (argued), The Law Office of Steven J.
Sherlag, PC, Portland, Oregon, for Defendant-Appellant.
S. Amanda Marshall, United States Attorney for the District
of Oregon; Kelly A. Zusman (argued), Assistant United
States Attorney, Chief, Appellate Division, Office of the
United States Attorney, Portland, Oregon, for Plaintiff-
Appellee.
OPINION
GOULD, Circuit Judge:
Defendant J.J., a juvenile male, is charged with second-
degree murder and using a firearm during a crime of violence.
He appeals the district court’s order granting the
government’s motion to transfer juvenile proceedings for
adult prosecution under 18 U.S.C. § 5032. Because the
district court did not abuse its discretion and did not violate
Defendant’s due-process rights, we affirm.
I
Defendant is charged with second-degree murder in
violation of 18 U.S.C. §§ 1111, 1153, and 5032 and using a
firearm during a crime of violence in violation of 18 U.S.C.
§§ 924(c) and 5032. Defendant was seventeen years old at
the time of the alleged offenses. The government filed a
motion to transfer under 18 U.S.C. § 5032 and a motion to
compel a psychological exam. Defendant opposed both
4 UNITED STATES V . JUVENILE MALE
motions. The district court held an evidentiary hearing on the
transfer motion.1
At the hearing, the investigating police detective testified
that Defendant was calm and unemotional during most of the
detective’s interactions with him and that Defendant appeared
to track conversations and understand questions. The
detective also testified that he has interacted with “a lot” of
people in their late teens and early twenties and that he found
Defendant’s behavior, interactions, and maturity typical of
that age group. Defendant did not seem immature for his age
or appear to suffer from mental-health problems.
Three other witnesses echoed the detective’s testimony.
A pretrial services officer testified that Defendant’s maturity
level appeared “typical” of young-adult offenders and that
Defendant did not seem immature for his age. A probation
officer testified that Defendant did not have any trouble
answering questions and that Defendant was no less mature
than other individuals in their late teens and early twenties
that the officer had interviewed. Finally, a manager of a
juvenile detention center testified that Defendant’s
intellectual development and maturity level were normal for
1
Because the record and briefs are filed under seal, only facts relevant
to our decision are discussed here. In addition to the evidence presented
in this opinion, the district court heard evidence on Defendant’s age and
social background, the nature of the alleged offense, Defendant’s prior
delinquency record, and Defendant’s past treatment efforts and his
response to such efforts.
UNITED STATES V . JUVENILE MALE 5
his age range and similar to other youth with whom the
manager had interacted.2
Darryl Cash, a contract-oversight specialist with the
Federal Bureau of Prisons, also testified at the hearing. He
testified that the juvenile and adult facilities where Defendant
would likely serve his sentence offer a wide variety of
programs that are essentially the same in type. He further
testified that there are more expansive educational programs
at the adult facilities, but that the programs are mandatory at
juvenile facilities. If Defendant were transferred for
prosecution as an adult and convicted, Cash pointed out that
Defendant would only move to an adult facility after
completing his current juvenile sentence. Defendant would
be about twenty years old at that time. Conversely, if treated
as a juvenile, Defendant would still be transferred to an adult
facility when he turns twenty-one years old.
Probation Officer Matthew Preuitt testified that numerous
post-custody supervision programs are available for both
juveniles and adults. If Defendant were convicted of the
alleged offenses as an adult, Preuitt would recommend five
years of supervised release after any term of imprisonment to
provide Defendant with adequate treatment resources to stop
the behaviors in which Defendant has engaged while on
supervised release in the past. Moreover, Preuitt testified that
five years of supervised release would be the minimum
necessary to monitor Defendant’s conduct in the community
and to ensure community safety. Finally, Preuitt testified that
2
Although not discussed in the district court’s findings of fact, the
record before the court also included testimony from a shift supervisor at
Defendant’s former juvenile detention facility, Defendant’s prior pre-
disposition investigation report, and Defendant’s school records.
6 UNITED STATES V . JUVENILE MALE
a total of five years for custody and supervision
combined—the maximum sentence if Defendant were
adjudicated as a juvenile—would likely not be long enough
based on his experience working with high-risk offenders like
Defendant.
In reviewing the evidence and making its findings of fact,
the district court presumed Defendant “will be adjudicated
guilty of one or both of the charged offenses.” The court
made findings on all six factors in § 5032 and determined that
a transfer was in the interest of justice. The court granted the
motion to transfer and denied the motion to compel a
psychological exam as unnecessary given the evidence
already in the record. Defendant now appeals the district
court’s order, contending that the district court abused its
discretion in making the required findings and violated his
due-process rights.
II
We have jurisdiction to review the transfer order because
the district court’s decision is immediately appealable under
the collateral order exception. See United States v. Gerald N.,
900 F.2d 189, 191 (9th Cir. 1990) (per curiam). We review
the order for abuse of discretion. United States v. Brandon
P., 387 F.3d 969, 976 (9th Cir. 2004). The district court
abuses its discretion if it applies the wrong legal rule or if its
application of the rule was illogical, implausible, or without
support in inferences that may be drawn from facts in the
UNITED STATES V . JUVENILE MALE 7
record. See United States v. Hinkson, 585 F.3d 1247, 1261
(9th Cir. 2009) (en banc).3
III
Under the Federal Juvenile Delinquency Act, 18 U.S.C.
§ 5031 et seq., a juvenile who is fifteen years old or older and
who is alleged to have committed an act which, if committed
by an adult, would be a felony crime of violence may be
prosecuted as an adult if the district court determines that it
would be “in the interest of justice” to do so. 18 U.S.C.
§ 5032 (2006); see Brandon P., 387 F.3d at 976. “The
government has the burden of establishing that prosecution as
an adult is warranted.” United States v. Doe, 94 F.3d 532,
536 (9th Cir. 1996); see Brandon P., 387 F.3d at 977.
In this case, there is no question that the first two
requirements for transfer are met: (1) Defendant was
seventeen years old at the time of the alleged criminal acts,
and (2) second-degree murder, if committed by an adult,
would be a felony crime of violence. Only the third
requirement of § 5032—that transfer be “in the interest of
justice”—is in dispute.
3
In Hinkson, we adopted a two-part test for abuse of discretion in the
context of denial of a new trial. 585 F.3d at 1261–62. This abuse of
discretion test has not yet been applied in reviewing a transfer order under
§ 5032. Here, we assume without deciding that Hinkson applies because
the district court did not abuse its discretion whether judged under the
Hinkson standard or antecedent formulations of abuse of discretion in this
context. See United States v. Doe, 94 F.3d 532, 536 (9th Cir. 1996)
(holding that a district court abuses its discretion when it fails to make the
required findings or where the findings it does make are clearly
erroneous).
8 UNITED STATES V . JUVENILE MALE
Congress has established six factors that a district court
must consider to determine whether transfer would serve 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; [and] the
availability of programs designed to treat the
juvenile’s behavioral problems.
18 U.S.C. § 5032; see United States v. Juvenile Male,
492 F.3d 1046, 1048 (9th Cir. 2007) (per curiam). The
district court must make findings on all factors, but the court
need not specify whether each factor supports transfer. Doe,
94 F.3d at 537. The court has discretion on how to weigh the
factors. Id. at 536. Defendant challenges two of the district
court’s findings.
Defendant contends that the district court did not make
adequate findings on his intellectual development and
psychological maturity. Defendant asserts that the testimony
of lay witnesses who spent limited time with Defendant is not
sufficient evidence for the district court to assess his
psychological maturity. Defendant points out that all
witnesses admitted that they did not have mental health
training and did not use psychological assessment tools.4
4
Defendant’s argument against the sufficiency of lay-witness testimony
is undermined in part because Defendant prevented the government from
UNITED STATES V . JUVENILE MALE 9
The district court did not abuse its discretion because the
district court applied the correct legal rule—that is, made the
required finding—and the finding was not illogical,
implausible, or without support from facts in the record. In
assessing Defendant’s intellectual development and
psychological maturity, the district court relied on the
testimony of witnesses who directly observed and interacted
with Defendant. All the witnesses testified that Defendant
appeared to be of average intelligence and had the maturity
typical of someone in his late teens. No record evidence
contradicted this testimony. And the district court found this
testimony sufficient to make the required finding about
Defendant’s intellectual development and psychological
maturity.
The testimony was properly admitted under Federal Rule
of Evidence 701. The witnesses all testified about their
perceptions of Defendant without basing their opinions on
scientific, technical, or other specialized knowledge. The
district court found this testimony helpful in determining a
fact in issue.
Moreover, § 5032 does not require a psychological
evaluation before the district court may decide a transfer
motion. United States v. Leon D.M., 132 F.3d 583, 590–91
(10th Cir. 1997). The statute does not specify how the district
court should assess psychological characteristics. The district
court has considerable discretion to decide whether a
particular behavior reflects intellectual development and
psychological maturity or a lack thereof. Id.; see also United
introducing expert testimony for this very purpose by opposing the
government’s motion to compel a psychological exam.
10 UNITED STATES V . JUVENILE MALE
States v. A.R., 203 F.3d 955, 961 (6th Cir. 2000) (following
Leon D.M.).
We agree with the conclusions of our sister circuits that
a psychological evaluation is not a prerequisite to approving
a transfer motion. Decisions such as United States v. Leon
D.M. and United States v. A.R. are consistent with our more
general precedent. We have recognized the importance of
giving the district court broad discretion in transfer
proceedings, see United States v. Alexander, 695 F.2d 398,
400 (9th Cir. 1982), and have affirmed transfer orders
approved by courts that relied on lay-witness observations of
a defendant’s intellectual and psychological development,
see, e.g., id. at 400 n.3 (affirming a transfer order where the
district court relied on the testimony of a school principal).
Even where a defendant presents expert testimony, the district
court can reject an expert’s conclusions based on other
evidence in the record. See, e.g., Brandon P., 387 F.3d at 977
(affirming a transfer order where the district court rejected a
psychological expert’s conclusions based in part on police-
officer testimony that cast doubt on test results). We hold
that the district court did not abuse its discretion in making
the finding about Defendant’s intellectual development by
relying solely on lay-witness testimony.
Defendant also contends that the district court abused its
discretion by not making a finding about the alleged
discrepancy in individualized attention and counseling
programs when comparing the adult and juvenile detention
systems. But the district court did not abuse its discretion.
The district court made extensive findings about the treatment
programs available at adult and juvenile facilities where
Defendant might serve any sentence imposed. Nothing in the
record contradicts these findings. And, as noted above, the
UNITED STATES V . JUVENILE MALE 11
district court has broad discretion in how to assess the § 5032
factors. Here, in determining the availability of treatment
programs, the court considered the types of programs
available, how expansive the offerings are, whether the
programs are mandatory, and the length of time that the court
could require Defendant to participate in the programs.
Although the court did not explicitly address the staff-to-
offender ratio or specific counseling programs, this does not
mean that the court abused its discretion. We reject the
challenges to the district court’s findings, which were not an
abuse of discretion.
IV
Defendant also contends that the district court violated his
due-process rights by inconsistently presuming his guilt.
Defendant’s characterization is factually incorrect. The court
permissibly and consistently presumed that Defendant “will
be adjudicated guilty of one or both of the charged offenses.”
See Juvenile Male, 492 F.3d at 1048 (citations omitted). The
district court acknowledged that 18 U.S.C. § 924(c) requires
a mandatory minimum sentence of ten years and that any
sentence for second-degree murder “will be significant.” But
the district court recognized that the parties could “resolve
this matter by agreeing to only the second-degree murder
charge or lesser charges.” The district court did not speculate
as to the exact sentence that would be imposed if Defendant
was convicted of one or both crimes, noting the discretion
that a district court judge has when imposing sentence and the
need to consider the 18 U.S.C. § 3553(a) factors at
sentencing. All of the district court’s analysis consistently
presumes for purposes of the transfer decision that Defendant
would be convicted of one or both charges. The district
12 UNITED STATES V . JUVENILE MALE
court’s presumption of guilt for this purpose does not violate
Defendant’s due-process rights. See Juvenile Male, 492 F.3d
at 1048.
AFFIRMED.