concurring
I.
Analysis of the scope of judicial review of the government's certification under the Juvenile Delinquency Act, 18 U.S.C. § 5032, must begin with the following statement from the Supreme Court: "[W]e have stated time and again that judicial review of executive action 'will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.'" Gutierrez de Martinez v. Lamagno, 115 S.Ct. 2227, 2231 (1995) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)). Conceding that the statute under consideration in that case was susceptible to divergent interpretations, the Court adopted a construction consistent with "traditional understandings and basic principles: that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind federal courts are set up to render." Id. at 2236.
Using Lamagno as a guide, the question is whether there is "persuasive reason" to believe that Congress intended to limit the scope of judicial review of § 5032 certifications to technical compliance and prosecutorial bad faith. Not only do careful studies of the statutory language and its legislative history fail to reveal a convincing ground to limit judicial review, they also disclose Congress' deep concern for principles of federalism that might be jeopardized by overzealous federal prosecution.
The 1984 amendments to § 5032 expanded the bases for transferring a case from state to federal jurisdiction. If the felony offense is a "crime of violence" or one of those offenses specifically described in the amendments, and "there is a substantial Federal interest in the case or the offense," the prosecution may proceed in the federal courts.
The Senate Report that accompanied the amendments acknowledged that the traditional policy of state predominance in this area survived. Explaining the narrow, federal inroad into state jurisdiction over juvenile delinquency proceedings, the Senate Committee stated:
The essential concepts of the 1974 Act are that juvenile delinquency matters should generally be handled by the *381States and that criminal prosecution of juvenile offenders should be reserved for only those cases inivolving particularly serious conduct by older juveniles. The Committee continues to endorse these concepts, but has determined that certain modifications in current law are necessary to allow an adequate Federal response to serious criminal conduct on the part of juveniles.
S.Rep. 98-225 at 386 (1984) reprinted in 1984 U.S.C.C.A.N. 3182, 3526.
The Committee also cautioned that "a determination that there is a 'substantial Federal interest'" be grounded on a "finding" that
the nature of the offense or the circumstances of the case give rise to special Federal concerns. Examples of such cases could include an assault on, or assassination of, a federal official, an aircraft hijacking, a kidnaping where State boundaries are crossed, a major espionage or sabotage offense, participation in large-scale drug trafficking, or significant and willful destruction of property belonging to the United States.
Id. at 389 reprinted in id. at 3529.
By requiring a certification by the Attorney General, Congress emphasized that the decision to place a juvenile case within federal jurisdiction must be neither casual nor routine, but should be carefully considered. The existence of this restraint is in sharp contrast to the typical adult criminal case in which a federal prosecutor may choose to indict for a federal crime even when the underlying conduct may also violate state law. In such a situation, of course, the prosecutor enjoys wide discretion that, significantly, is unfettered by a certification requirement.
Rather than extend such unlimited discretion to the prosecutor's decision to initiate juvenile proceedings in federal court, Congress included the certification requirement to remind federal prosecutors of the strong interests that states have in juvenile justice. That consideration leads to the related inference that, rather than being adverse to judicial review, Congress approves it as a method of enforcing its policy in favor of state primacy in juvenile delinquency proceedings.
*382Additional support for this view is supplied by the Committee's assertion that the determination of a "substantial federal interest" be based on a "finding" of special federal concerns. Use of the term "finding" reasonably implies that a judicial proceeding was contemplated.
Finally we should not discount the significance of 28 C.F.R. § 0.57 (1996), through which the Attorney General has delegated to the United States Attorney in the appropriate district the authority to provide the requisite certification. The certification process, therefore, is not administered at the national level, but is applied in a local context where parochial concerns become more influential.
Federal, courts manage caseloads that are far more diverse than those of local federal prosecutors and, as a result, have a greater familiarity with the complexities of federalism. Given the experience of the federal bench in questions of federal-state relations, it would be expected that Congress would vest oversight of these important procedures in the judiciary rather than in the local United States Attorney. At the very least, that inference should govern absent a clear indication to the contrary from Congress.
The strong language in Lamagno favoring judicial review differs dramatically from the view taken by the Courts of Appeals in United States v. Vancier, 515 F.2d 1378 (2d Cir. 1975), and to a lesser extent, United States v. C.G., 736 F.2d 1474 (11th Cir. 1984). Those opinions take a restrictive approach to judicial review of certifications under 18 U.S.C. § 5032. Both pre-dated Lamagno and, consequently their persuasive value has been substantially undermined. In addition, the "substantial federal interest" qualification, which was added to the Juvenile Delinquency Act in 1984, also post-dates those two cases.
In United States v. I. D. P., 102 F.3d 507, 511-13 (11th Cir. 1996), the Court of Appeals for the Eleventh Circuit chose to follow C.G., and to distinguish Lamagno, in holding that the courts may not review certifications to determine the existence of a substantial federal interest. In its review of the legislative history, I.D.P. observed that the Senate Report referred to a predecessor bill that set forth standards for the Attorney General to follow. The Court, however, did not discuss the fact that the earlier bill contained a provision *383barring judicial review of certifications — a provision that eventually was removed. In my view, the deliberate deletion of that prohibition not only shows that Congress knew how to ban review if it wished but also that it had rejected the proposal.
The Court of Appeals for the Fourth Circuit took a different approach than I.D.P. in United States v. Juvenile Male #1, 86 F.3d 1314 (4th Cir. 1996) when it relied upon the traditional congressional preference for having juvenile matters handled in state courts, even though federal jurisdiction had been expanded in the 1984 amendments to the Juvenile Delinquency Act. Viewing the legislative history as inconsistent with the grant of unreviewable discretion to the prosecutor, Juvenile Male #1 held that the strong presumption in favor of judicial review so forcefully reiterated in Lamagno must prevail. Id. at 1321. Although the Juvenile Male #1 Court did not use the term "federalism," that consideration was at the core of its reasoning.
Those Courts that deny review of the certification process except for technical compliance and bad faith cite the lack of standards in the statutory language for substantive review. See C.G., 736 F.2d at 1478; Vancier, 515 F.2d at 1380. This reasoning is somewhat puzzling. It implies that the United States Attorneys will be able to apply the statute despite the absence of standards, but that the courts are unable to cope with the task of review in similar circumstances. If the federal prosecutors had the same broad discretion as they do when adult prosecutions are contemplated, that rationale might be justified. But, as noted earlier, Congress made it clear that the federal prosecutor's authority in the juvenile delinquency setting remains limited. Moreover, judicial deference is especially questionable here because at stake are issues of federalism and the limitations of federal prosecutorial authority — areas in which Congress reasonably could expect the courts' perspective to be more objective than that of the United States Attorneys.
The legislative history of the 1984 amendments, which explicitly stated that "the Federal Government will continue to defer to State authorities for less serious juvenile offenses," addresses this concern. The Senate Report cited certain examples of offenses raising special federal interests. Although Congress did not repeat these *384standards in the statute itself, they are helpful guideposts, and there is no indication that Congress intended them to inform the prosecutor's decision, but not the court's.
Finally, the search for a substantial federal interest cannot be any more difficult than, for example, "the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era." United States v. Lopez, 115 S.Ct. 1624, 1634 (1995) (Kennedy, J., concurring). Whether the interpretative question is constitutional or statutory, the judiciary must provide an answer no matter how nebulous the standard. I believe that the federal courts have both the competence and the duty to review the certifications in § 5032 and that we should undertake that task in this case.
II.
I agree with the majority that the dispositive issue in this case is whether it was properly transferred under clause (1) of § 5032 because the Territorial Government had relinquished jurisdiction. To arrive at its conclusion, the majority says it is bound to accept the certification's statement to that effect because it is unreviewable.
Rather than simply accept the United States Attorney's certification on its face, I have reviewed the record and found that it provides undisputed evidence that the Attorney General of the Virgin Islands abandoned its prosecution of the juvenile and so informed the United States Attorney. I perceive no difference between a state's refusal to assume jurisdiction from the outset, see United States v. Hill, 538 F.2d 1072, 1077 (4th Cir. 1976), and a state's agreement to relinquish jurisdiction after charges have been filed. Neither situation presents a conflict of the sovereigns' interests. When the state agrees to step aside, federalism concerns fade into the background. The certification therefore withstands review.
In addition, I fully agree with the majority's opinion that, after assuming jurisdiction, the district court properly invoked the mandatory transfer provision of § 5032 for treating defendant as an adult.