U.S. v. Doe, S1298CR438 (RLC).

• Decision Date: 14 September 2000
• Docket Number: No. S1298CR438 (RLC).,S1298CR438 (RLC).
• Citation: 113 F.Supp.2d 604
• Parties: UNITED STATES of America, v. John DOE # 3 (RM), Defendant.
• Court: U.S. District Court — Southern District of New York

Page 604

113 F.Supp.2d 604

UNITED STATES of America, v. John DOE # 3 (RM), Defendant.

No. S1298CR438 (RLC).

United States District Court, S.D. New York.

September 14, 2000.

Mary Jo White, United States Attorney for the Southern District of New York, New York City, Joshua G. Berman, John M. Hillebrecht, Assistant United States Attorneys, of counsel, of United States of America.

Krantz & Berman LLP, New York City, Larry H. Krantz, of counsel, for Defendant.

OPINION

ROBERT L. CARTER, District Judge.

The government has filed a juvenile information ("information") against defendant John Doe # 3 ("John Doe") charging him with ten acts of juvenile delinquency. Now before the court is the government's motion to transfer defendant for adult criminal prosecution pursuant to the Juvenile Delinquency Act ("JDA"), 18 U.S.C. §§ 5031 et seq.

BACKGROUND

The charges against John Doe stem from his alleged involvement in the 165th Street Organization ("165 Organization"), a criminal enterprise based in the Bronx and operating in New York, New Jersey and Pennsylvania. Its members are reputed to have engaged in interstate narcotics trafficking and a host of violent acts. Three defendants allegedly associated with the 165 Organization were initially charged with various crimes in a criminal indictment filed on May 13, 1998, and ten more defendants have since been added in superseding indictments.

On March 15, 2000, the government filed a juvenile information against John Doe charging him with acts of juvenile delinquency occurring between 1994, and September 15, 1999, including armed robbery, kidnapping, murder, racketeering and the possession and distribution of powder and crack cocaine. He is specifically charged with participating in, among other things, the March 15, 1995 armed robbery, kidnapping and murder of an individual named Francisco Soto ("Soto"), and a May 22, 1996 armed robbery.

On April 19, 2000, the government moved to prosecute defendant as an adult pursuant to the discretionary transfer provisions of 18 U.S.C. § 5032. The United States Attorney for the Southern District of New York has certified, pursuant to authority delegated to her by the Attorney General of the United States, that John Doe is a juvenile as defined by 18 U.S.C. § 5031, that the charged offenses include violent felonies and that there is a substantial federal interest in the case. See 18 U.S.C. § 5032.

In accordance with the requirements of the JDA, on August 10 and 14, 2000, the court held a hearing to determine whether transfer was warranted. The sole witness to testify was Dr. Barry Rosenfeld, a forensic psychologist who examined John Doe on behalf of the government.

DISCUSSION

A juvenile who is alleged to have committed a felony which is a crime of violence after his fifteenth birthday may be transferred for adult criminal prosecution pursuant to 18 U.S.C. § 5032 only if such transfer is in the "interest of justice." See United States v. Nelson, 68 F.3d 583, 588 (2d Cir.1995) ("Nelson I"). The district court is required to consider the following six factors in weighing a motion to transfer: (1) the juvenile's age and social background; (2) the nature of the alleged offense; (3) the nature and extent of the juvenile's prior delinquency record; (4) the juvenile's present psychological maturity and intellectual development; (5) the juvenile's response to past treatment efforts and the nature of those efforts; and (6) the availability of programs designed to treat the juvenile's behavioral problems. See 18 U.S.C. § 5032. While the court must consider and make findings on each of the six factors, it is not required to afford equal weight to each factor and may balance them as it deems appropriate. See United States v. Juvenile Male # 1, 47 F.3d 68, 71 (2d Cir.1995).

Permeating the transfer decision is the notion of rehabilitation, which "is one of the primary purposes of the juvenile delinquency provisions." Nelson I, 68 F.3d at 590. See also United States v. Nelson, 90 F.3d 636, 640 (2d Cir.1996) ("Nelson II") (noting that court's assessment of a juvenile defendant's potential for rehabilitation is a crucial determinant in transfer decision). Accordingly, juvenile adjudication is presumed appropriate unless the government establishes by a preponderance of the evidence that prosecution as an adult is warranted. See United States v. John Doe, 49 F.3d 859, 868 (2d Cir.1995). The desire to encourage rehabilitation must be balanced, however, against the "need to protect the public from violent and dangerous individuals." Juvenile Male # 1, 47 F.3d at 71.

Factors

1. Age and Social Background

John Doe, born in the Bronx on May 1, 1979, was between the ages of fifteen and eighteen at the time of the crimes charged in the information. In particular, he was fifteen years old at the time Soto was murdered and seventeen years old when he was arrested for armed robbery in 1996. He is currently 21 years of age.

Defendant was raised in the Bronx as the youngest, along with a twin brother, of several children. Although he also has six half-siblings and several foster siblings, he primarily grew up with his twin brother and a half-brother approximately twenty years his senior. Defendant's father, who was HIV positive, died of a heroin overdose when defendant was eleven years old. His mother died in 1997, from an AIDS-related illness while defendant was eighteen years old and incarcerated. Defendant currently has little contact with his remaining family members: he is unaware of his twin brother's whereabouts and has only maintained relationships with two of his older sisters.

Defendant's family was poor, neither of his parents worked and the family relied on public assistance, and he described his childhood as rough, primarily due to poverty, his parent's drug use and his father's premature death. Nonetheless, he reported having good family relationships and denied ever having been physically or sexually abused. Yet after his father's death, which greatly upset him, defendant received less supervision from home and soon became involved in criminal activity. By the age of fourteen, he was allegedly involved with the 165 Organization and had been arrested for armed robbery.

Around the age of thirteen, defendant began using alcohol and marijuana, the latter of which he used daily throughout his teenage years. He reported that he has abstained from using marijuana during his current incarceration but that he had used drugs while imprisoned on Riker's Island for an earlier offense. He also admitted to having occasionally used cocaine when he was a teenager.

Also around the age of twelve or thirteen, defendant began a long-term relationship with a woman he described as his "common-law wife", and with whom he had a daughter who is now six years old. He continues to maintain a good relationship with both of them. They reside in the Bronx and visit him regularly in prison. Defendant also claimed to have had relationships with many other women, some of whom also visit him in prison.

Before defendant's incarceration, which forced him to withdraw from school in the tenth grade, he was an adequate student. He generally passed his classes and was never forced to repeat a grade, although he had received some special educational services in elementary and junior high school. He did not have any significant behavioral or disciplinary problems in school.

Finally, as part of defendant's social background, the court will consider the allegation that on August 9, 1997, when defendant was eighteen years old, he stabbed an individual in the abdomen during a fight. The wound was so severe it exposed the victim's internal organs and necessitated a three-month hospital stay. Criminal charges were filed against defendant but were later dismissed, before he was arrested, because certain witnesses to the stabbing recanted their testimony.¹

2. Nature of the Alleged Offense

John Doe is charged with ten acts of juvenile delinquency, including drug trafficking and various crimes of violence.² The charges arise from his reported involvement with the 165 Organization. One of the more serious offenses is his alleged participation in the robbery, kidnapping and murder of Soto. On March 15, 1995, defendant allegedly laid in waiting for the victim, attacked and handcuffed him, threw him in the back of a van, threatened him with a loaded gun and stood lookout while another member of the 165 Organization shot and killed him. Afterwards, defendant received approximately $35,000 worth of cocaine, stolen from Soto, as payment for his involvement in the crime.

Defendant has also been charged with involvement in the 165 Organization's extensive cocaine, crack and heroin distribution operation; the attack and shooting of an individual in Reading, Pennsylvania in an effort to resolve a drug dispute; and an armed robbery in New York City on May 22, 1996.

3. Nature and Extent of Defendant's Prior Delinquency Record

At the outset, the court expresses its dismay with the government's lateness in producing defendant's juvenile court records. The court authorized the government to procure these records from the clerk of the Family Court in Bronx County on May 30, 2000. The clerk of that court certified, on June 21, 2000, that no records pertaining to defendant were found on file. Regardless, the government did not provide the court with a copy of the clerk's certification until three months later, after it had already submitted its post-hearing brief.

The JDA expressly commands:

A juvenile shall not be transferred to adult prosecution ... until any prior juvenile court records of such juvenile have been received by the court, or the clerk of the juvenile court has certified in writing that the juvenile has no prior record, or that the juvenile's record is unavailable and why it is unavailable.

18 U.S.C. § 5032. Although this record certification provision has been interpreted "to...