U.S. v. C.P.A.

• Decision Date: 29 May 2008
• Docket Number: No. 4:07-cr-097.,4:07-cr-097.
• Citation: 572 F.Supp.2d 1122
• Parties: UNITED STATES of America, Plaintiff, v. C.P.A. (a juvenile), Defendant.
• Court: U.S. District Court — District of North Dakota

Page 1122

572 F.Supp.2d 1122

UNITED STATES of America, Plaintiff, v. C.P.A. (a juvenile), Defendant.

No. 4:07-cr-097.

United States District Court, D. North Dakota, Northwestern Division.

May 29, 2008.

ORDER GRANTING MOTION TO TRANSFER (SEALED)

DANIEL L. HOVLAND, Chief District Judge.

The juvenile information charges the defendant, C.P.A, with one count of second degree murder, which allegedly occurred on or about November 4, 2007.¹ See Docket No. 1. On November 20, 2007, the government filed a motion and accompanying memorandum in support of a transfer to adult court pursuant to 18 U.S.C. § 5032, in accordance with the Federal Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. §§ 5031-5042. See Docket No. 15.

An evidentiary hearing on the government's motion to transfer was held on May 6, 2008, in Bismarck, North Dakota. The hearing was closed to the public.² Assistant United States Attorney David Hagler represented the government. The government presented the testimony of Jon Gustin, Bureau of Prisons; Helen Keplin, Helen Parisien, and Patty Allery. Assistant Federal Public Defender Orell Schmitz represented C.P.A. The defendant presented the testimony of Dr. Peter C. Peterson. On May 16, 2008, the parties each filed post-hearing memorandums. See Docket No's. 42-43.

After a careful consideration of the voluminous record, the evidence presented at the transfer hearing, and the post-hearing submissions of the parties, the Court concludes that the interests of justice warrant transferring the juvenile defendant, C.P.A., to adult court for prosecution.

I. LEGAL DISCUSSION

A. WHETHER THE OFFENSE IS TRANSFERABLE UNDER 18 U.S.C. § 5032

Initially, the Court must determine whether the charged crime is the type of crime for which a juvenile may be prosecuted as an adult. The statute provides in pertinent part:

[W]ith respect to a juvenile fifteen years old and older 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 ..., criminal prosecution on the basis of the alleged act may be begun by motion to transfer of the Attorney General in the appropriate district court of the United States, if such court finds, after hearing, such transfer would be in the interest of justice.

18 U.S.C. § 5032 (emphasis added). The defendant is charged with one count of second degree murder in violation of 18 U.S.C. §§ 1111, 1153, and 2. The term "crime of violence" means "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a). The Court finds that the charge of second degree murder clearly meets this test and is considered a "crime of violence." Further, it is alleged that the defendant was seventeen years and eight months old when she committed the alleged crime. Therefore, the offense is transferable under 18 U.S.C. § 5032.

B. BURDEN OF PROOF AND EVIDENTIARY RULES

"The purpose of a transfer hearing is to ascertain whether a juvenile should be tried as an adult for the alleged crime." United States v. Parker, 956 F.2d 169, 171 (8th Cir.1992). The government bears the burden to prove by a preponderance of the evidence that a transfer is warranted. Id. "A transfer hearing is not a criminal proceeding which results in an adjudication of guilt or innocence, but a civil proceeding which results only in an adjudication of status." Id. Juvenile transfer proceedings "are analogous to preliminary examinations in criminal cases, and thus ... the Federal Rules of Evidence (including the hearsay rule) do not apply except with respect to privileges." United States v. S.L.W., 406 F.3d 991, 995 (8th Cir.2005) (citations omitted).

A juvenile can be transferred for adult criminal prosecution upon her request or upon the government's motion and the court's finding that the interests of justice require it. United States v. Juvenile Male, 923 F.2d 614, 615-16 (8th Cir. 1991). In determining whether a transfer would be in the "interests of justice," the Eighth Circuit has held that a district court must consider six statutory factors: (1) the age and social background of the juvenile; (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. United States v. A.D.J., 108 F.3d 851, 852 (8th Cir.1997).

For the purpose of a transfer hearing, the court may assume the juvenile committed the alleged offense. United States v. Juvenile LWO, 160 F.3d 1179, 1181 n.1 (8th Cir.1998). The government bears the burden of rebutting the statutory presumption of juvenile treatment. United States v. Nelson, 68 F.3d 583, 588 (2d Cir.1995); United States v. T.F.F., 55 F.3d 1118, 1121 (6th Cir.1995); United States v. AR., 38 F.3d 699, 703 (3d Cir. 1994). Because a transfer hearing is a civil proceeding which determines status, and not a criminal proceeding which determines guilt or innocence, the government need only persuade the court by a preponderance of the evidence. United States v. Parker, 956 F.2d 169, 171 (8th Cir.1992). Accordingly, a motion to transfer is properly granted when a court determines that the risk of harm to the public from treating violent individuals more leniently out-weighs the likelihood that the juvenile will be rehabilitated before she reaches majority. United States v. SLW, 406 F.3d 991, 993 (8th Cir.2005).

The decision of whether to transfer a juvenile to trial as an adult under 18 U.S.C. § 5032 is within the sound discretion of the trial court. United States v. Juvenile JG, 139 F.3d 584, 586 (8th Cir.1998). In analyzing the requisite six factors, the court is not required to give equal weight to each factor, but rather may balance the factors as it deems appropriate. United States v. Juvenile Male MC, 322 F.3d 482, 485 (8th Cir.2002).

1. AGE AND SOCIAL BACKGROUND

The first of the six statutory factors to be considered is the age and social background of the juvenile. Courts focus on the age of the juvenile at the time of the alleged offense. United States v. A.D.J., 108 F.3d 851, 852 (8th Cir.1997). Courts may also give weight to the juvenile's age at the time of the transfer hearing because current age is an important consideration in determining whether juvenile rehabilitation programs would be appropriate for the individual who is subject to the transfer proceeding. Nelson, 68 F.3d at 589. The closer a defendant is to the age of eighteen, the stronger the presumption that she should be treated as an adult. See United States v. Smith, 178 F.3d 22, 27 (1st Cir.1999) (stating "the proximity of a juvenile's age to age eighteen is another important factor for the court's consideration"); United States v. T.F.F., 55 F.3d 1118, 1121 (6th Cir.1995) (affirming a district court's reasoning that "because defendant was eighteen at the time of the transfer hearing, there was little time left to rehabilitate defendant within the juvenile system").

C.P.A. was born on March 3, 1990, and was seventeen years and eight months old at the time of the charged offense on November 4, 2007. The defendant was eighteen (18) years old at the time of the transfer hearing on May 6, 2008. The fact that C.P.A. was more than 17½ years old at the time the criminal offense occurred, and that she is currently eighteen years old, favors her transfer to adult status. See United States v. Smith, 178 F.3d 22, 27 (1st Cir.1999); United States v. Juvenile No. 1, 118 F.3d 298, 308 (5th Cir.1997); United States v. Dion L., 19 F.Supp.2d 1224, 1225 (D.N.M.1998) (juvenile crime committed two months before 18th birthday favored transfer to adult status.)

With respect to the social background of the defendant, C.P.A. lives with her mother, Carrie Thibert. It appears that C.P.A. has had little contact with her father who lives in the Belcourt area. It is undisputed that Carrie Thibert has been committed for drug and alcohol treatment on more than twenty occasions. C.P.A. and her three siblings have been removed from Thibert's care and custody by tribal court officials on numerous occasions. C.P.A. has been in substance abuse treatment at least seven or eight times since she was fourteen years old. She has a well-documented and extensive drug/alcohol history. C.P.A. went through treatment at a facility in Williston, North Dakota, from June 28, 2007 to September 19, 2007. Thereafter, Carrie Thibert petitioned the Tribal Court to commit C.P.A. to a juvenile treatment facility in South Dakota, because she was once again using street drugs. C.P.A. completed her most recent treatment at the Aberdeen Youth Regional Treatment Center in Aberdeen, South Dakota, on October 30, 2007. She then returned home to live with her mother (Carrie Thibert) on October 31, 2007. Shortly after she returned home, C.P.A. left the residence within days and also left her two-year-old child in the care of Thibert. C.P.A. was not seen again until after her arrest for the alleged murder offense on November 4, 2007. The investigation indicates that C.P.A. attended a party at a residence where drugs and alcohol were present and the alleged offense occurred at the residence.

C.P.A.'s work history is scant. It appears that she has held one full-time job, working at DynaBand as a telemarketer from February 2007 to July 2007. The record is replete with evidence that C.P.A. associates with unsavory characters. At the time of the alleged murder, she was with Justin Beston, a convicted felon. In 1999, Beston pled guilty to burglary in this Court, with robbery and assault charges dropped in exchange for a guilty plea. United States v. Beston, et al., C4-99-015. Beston also has state convictions for burglary in 2003...