U.S. v. Nelson, 2132

• Decision Date: 25 July 1996
• Docket Number: No. 2132,D,2132
• Citation: 90 F.3d 636
• Parties: UNITED STATES of America, Appellee, v. Lemrick NELSON, Jr., Defendant-Appellant. ocket 96-1213.
• Court: U.S. Court of Appeals — Second Circuit

Page 636

90 F.3d 636

UNITED STATES of America, Appellee, v. Lemrick NELSON, Jr., Defendant-Appellant.

No. 2132, Docket 96-1213.

United States Court of Appeals Second Circuit.

Argued June 21, 1996.

Decided July 25, 1996.

Christine E. Yaris, New York City (Trevor L.F. Headley, Brooklyn, NY, of counsel), for Defendant-Appellant.

Alan M. Vinegrad, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Zachary W. Carter, U.S. Atty., E.D.N.Y., Valerie Caproni, Asst. U.S. Atty., E.D.N.Y., David C. James, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY, of counsel), for Appellee.

Before: MAHONEY and McLAUGHLIN, Circuit Judges, and CARMAN, Judge. ^*

McLAUGHLIN, Circuit Judge:

Lemrick Nelson, Jr., appeals from a decision of the United States District Court for the Eastern District of New York (David G. Trager, J.) granting the government's motion to transfer Nelson, who stands accused of juvenile delinquency, for adult criminal prosecution. Following a previous appeal to and remand by this Court, see United States v. Nelson, 68 F.3d 583 (2d Cir.1995), the district court found that such transfer was warranted. We affirm.

BACKGROUND

During the evening of August 19, 1991, an automobile driven by a Hasidic Jew struck two black children playing in the Crown Heights section of Brooklyn. One child was killed, and the other was seriously injured. Rumors quickly spread that ambulance personnel responding to the accident first treated the driver rather than the two seriously injured children pinned beneath the automobile. A large crowd gathered at the accident scene, and people began shouting, throwing rocks and bottles, and protesting the treatment of the injured children. A black man incited the crowd with shouts of "no justice, no peace" and "let's go to Kingston Avenue and get a Jew." Accompanied by a number of black youths, this man left the accident scene and headed in the direction of Kingston Avenue, several blocks away.

As the group moved toward Kingston Avenue, unruly individuals threw rocks and bottles at homes and vandalized cars. Sixteen-year-old Lemrick Nelson and others from the crowd spotted Yankel Rosenbaum on the street. One of them shouted, "there's a Jew, get the Jew," and they chased Rosenbaum across the street and attacked him. During the melee, Nelson allegedly stabbed Rosenbaum and fled, leaving Rosenbaum bleeding in the street. The police apprehended Nelson approximately one block from the stabbing scene, and found a bloody knife in his pocket. At a "show-up" identification, the mortally-wounded Rosenbaum positively identified Nelson as the person who had stabbed him. Rosenbaum died the next morning in the hospital. Shortly thereafter, Nelson allegedly admitted to the police that he had stabbed Rosenbaum.

Nelson was charged in New York state court, as an adult, with second degree murder. After a six-week jury trial, he was acquitted.

On August 10, 1994, the United States Attorney filed a Juvenile Information in the United States District Court for the Eastern District of New York, charging Nelson with juvenile delinquency, in violation of 18 U.S.C. §§ 5032 et seq., and 18 U.S.C. § 245(b)(2)(B), as follows:

On or about August 19, 1991, in the Eastern District of New York, the defendant LEMRICK NELSON, JR. and others, by force and threat of force, did willfully injure, intimidate and interfere with, and attempt to injure, intimidate and interfere with, Yankel Rosenbaum, an Orthodox Jew, because of his religion and because he was enjoying facilities provided and administered by a subdivision of the State of New York, namely, the public streets provided and administered by the City of New York, and bodily injury to and the death of Yankel Rosenbaum did result.

Nelson, although nineteen years old at the time the federal Information was filed, was charged with "juvenile delinquency" because he was only sixteen when Rosenbaum was stabbed.

The government moved to "transfer" Nelson to adult status. The federal statute governing transfer provides:

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: [ (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.

18 U.S.C. § 5032. The district court examined and weighed these factors, and concluded that Nelson should be tried as a juvenile. This conclusion rested, at least in part, on the court's finding that Nelson showed a "glimmer of hope" of rehabilitation. As discussed below, the juvenile's potential for rehabilitation is a major consideration in the transfer decision.

The government appealed. We vacated the district court's decision, and remanded for further consideration. See Nelson, 68 F.3d at 591. In so holding, we expressly rejected the "glimmer of hope" test:

In assessing the prospects of rehabilitation ... the district court in its findings referred to "a glimmer of hope in future treatment." At the ... hearing, ... the district court referred to the "glimmer of hope test" and observed "that the glimmer of hope test has been met here, which I think the Second Circuit while it hasn't endorsed it has sustained and which I am going to apply here."

We have never endorsed a "glimmer of hope" test. In United States v. Juvenile Male # 1, 47 F.3d [68, 70 (2d Cir.1995) ], we observed that the district court "noted that [the psychiatrist] saw 'a glimmer of hope in future treatment.' " This observation appeared only in the factual background portion of our opinion and did not enunciate any legal standard. The district court's legal standard was not discussed on appeal [in Juvenile Male # 1 ] and we therefore have not yet addressed the specific standard that should be used here. Now, squarely presented with this question, we reject explicitly the "glimmer of hope" test. Indeed, a glimmer of hope in future treatment, standing alone, would be insufficient to warrant a finding that rehabilitation is likely. See United States v. Doe, 871 F.2d [1248, 1253 (5th Cir.), cert. denied, 493 U.S. 917, 110 S.Ct. 276, 107 L.Ed.2d 257 (1989) ]. Our opinion in Juvenile Male # 1 identified a number of factual findings by the district court that supported a potential for future rehabilitation. See 47 F.3d at 70. A glimmer of hope in future treatment was only one of these.

Nelson, 68 F.3d at 590.

On remand, the district court reevaluated the six statutory factors consistent with our first opinion, finding that the seriousness of the offense strongly favored transfer to adult status, but that the other factors either favored continued juvenile treatment, or were neutral.

The court then turned to a general assessment of Nelson's potential for rehabilitation. The court noted that, while we had categorically rejected the "glimmer of hope" standard for evaluating the defendant's potential for rehabilitation, we did not enunciate what alternative standard should be used. See United States v. Nelson, 921 F.Supp. 105, 120-22 (E.D.N.Y.1996).

The district court isolated two alternative standards that it thought could be inferred from our first decision: (1) that there be a "reasonable probability" of rehabilitation; or (2) that rehabilitation be "likely." Id. at 120-21. The second standard ("likely") stemmed from this Court's statement that "a glimmer of hope in future treatment, standing alone, would be insufficient to warrant a finding that rehabilitation is likely." Nelson, 68 F.3d at 590 (citation omitted). The first standard ("reasonable probability") was drawn from the concomitant citation to Doe, 871 F.2d at 1253 (applying a "realistic chance of rehabilitative potential" standard). The district court also concluded that a "reasonable probability" of rehabilitation was a lesser degree of certainty than a "likelihood" of rehabilitation.

Drawing on extensive testimony from psychologists and other evidence in the record, the district court determined that Nelson's chances for rehabilitation were "fair to good" at best. Nelson, 921 F.Supp. at 120, 121. Based on that finding, the district court resolved that, although there was a "reasonable probability" that Nelson could be rehabilitated, his rehabilitation was not "likely." In other words, Nelson's potential for rehabilitation met the lower standard, but not the higher. Concluding that the higher standard should govern, the district court found that Nelson's prospects for rehabilitation supported transfer to adult status. Id. at 122.

Finally, the district court brought together the six statutory factors, and the underlying concept of rehabilitative potential:

The seriousness of the crime clearly weighs in favor of transfer to adult status.... The other statutory factors become relevant principally because of the relationship they have to the prospects of rehabilitation. They are, therefore, entitled to some weight, but are not nearly as important as the second statutory factor (the seriousness of the crime alleged) and the overall question of whether rehabilitation is truly a feasible prospect. Although the other statutory factors either favor continued juvenile status or are neutral, because the two most important [considerations] favor transfer, Nelson's status will be transferred to that of an adult.

Id.

Nelson now appeals, arguing only that the court improperly applied the likelihood standard to evaluate his chances of rehabilitation.

DISCUSSION

Although "a mother never realizes that her children are no longer children," Holbrook Jackson, On a Certain Arrangement in Grey and Black, in All Manner of Folk 89 (1912),...