U.S. v. Nelson

• Decision Date: 17 October 1995
• Docket Number: D,No. 421,421
• Citation: 68 F.3d 583
• Parties: UNITED STATES of America, Appellant, v. Lemrick NELSON, Jr., Defendant-Appellee. ocket 95-1271.
• Court: U.S. Court of Appeals — Second Circuit

Page 583

68 F.3d 583

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

No. 421, Docket 95-1271.

United States Court of Appeals, Second Circuit.

Argued Aug. 29, 1995.

Decided Oct. 17, 1995.

Alan M. Vinegrad, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Valerie Caproni, David C. James, Assistant United States Attorneys, of counsel), for Appellant.

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

Before: CARDAMONE, MINER and CALABRESI, Circuit Judges.

MINER, Circuit Judge:

The government appeals from an order entered in the United States District Court for the Eastern District of New York (Trager, J.) denying its motion to transfer defendant-appellee, Lemrick Nelson, Jr., who stands accused of juvenile delinquency, for adult criminal prosecution pursuant to 18 U.S.C. Secs. 5031 et seq. The district court determined, following a mandatory review of the pertinent factors enumerated in the statute, that the "interest of justice" would not be served by a transfer.

For the reasons that follow, we vacate the transfer order and remand for further findings and reconsideration of the order by the district court.

BACKGROUND

On August 10, 1994, the United States Attorney for the Eastern District of New York filed a Juvenile Information charging Nelson with an act of juvenile delinquency 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.

The Information cites 18 U.S.C. Sec. 245(b)(2)(B), which imposes criminal penalties for civil rights violations involving interference with federally protected activities, as well as 18 U.S.C. Secs. 5032 et seq., which provides for juvenile proceedings in the district courts. Nelson was 16 years of age at the time of the incident subject of the Information.

The Government's version of the events that gave rise to the accusation, which we must take as true for purposes of this appeal, and which are, in any event, largely uncontested, is as follows. An automobile driven by a Hasidic Jew struck two black children playing in the Crown Heights neighborhood of Brooklyn during the evening of August 19, 1991. One child was killed, and the other was seriously injured. Rumors spread throughout the community, during the course of the evening, that ambulance personnel responding to the scene of the accident first treated the Jewish driver rather than the two seriously injured children pinned beneath the automobile. A large crowd gathered at the accident scene, and people began throwing rocks and bottles and verbally protesting the treatment of the injured children. After the automobile involved in the accident was towed away, a black man incited the crowd with shouts of "no justice, no peace" and "let's go to Kingston Avenue [a street of As the group moved toward Kingston Avenue, various members of the group threw rocks and bottles at homes and vandalized cars. At a point approximately one block past Kingston Avenue, Yankel Rosenbaum had the misfortune to be espied by Nelson and some 10 other black individuals. One of them shouted, "there's a Jew, get the Jew," and they chased Rosenbaum across the street and attacked him. Rosenbaum, having been stabbed in the mid-section of his body by Nelson, was left bleeding in the street. The police apprehended Nelson approximately one block away from the stabbing scene. They found in Nelson's pocket a bloody knife with the word "Killer" on the handle. When Rosenbaum confronted Nelson during a "show-up" identification, he positively identified Nelson as the person who had stabbed him. Rosenbaum died in the early morning hours of the following day at the hospital to which he had been taken following the incident. Shortly thereafter, Nelson orally admitted to the police that he had stabbed Rosenbaum.

                predominantly Jewish residents in Crown Heights] 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
                

For causing the death of Yankel Rosenbaum, Nelson was charged as an adult with second degree murder under New York law on August 26, 1991. After a six-week trial in Kings County Supreme Court, Nelson was acquitted in October, 1992 of all charges arising out of the events of August 19, 1991. He was then 17 years of age. Following his acquittal, Nelson relocated to a suburb of Atlanta, Georgia, where he lived with friends and attended high school.

In early 1994, Nelson, then 18, attacked a classmate with a razor blade for reporting to school authorities that Nelson had stolen money from another classmate. When he was arrested for the attack, Nelson was carrying a scalpel as a concealed weapon. When he was expelled from school as a result of these incidents, Nelson physically resisted the police officers who came to arrest him after he refused to leave the school grounds. Charged as an adult offender with aggravated assault and carrying a concealed weapon, Nelson entered a plea of guilty to the charges in the Superior Court of DeKalb County, Georgia on February 6, 1995. He was sentenced to 90 to 120 days in a boot camp program administered by the Georgia Department of Corrections, three years of probation, and banishment from the State of Georgia.

Nelson was born on July 31, 1975 and was 19 years of age at the time the federal Information was filed. In order to proceed with the charge of juvenile delinquency set forth in the Information, the United States Attorney for the Eastern District of New York certified, in accordance with the provisions of 18 U.S.C. Sec. 5032 and the authority delegated to him by the Attorney General of the United States, that

The defendant LEMRICK NELSON, JR. is a juvenile currently charged with a violation of Title 18, United States Code, Sections 2 and 245(b)(2)(B); this offense is a crime of violence that is a felony; and there is a substantial Federal interest in the case and the offense to warrant the exercise of Federal jurisdiction.

Five days after the Information was filed, the government moved to transfer Nelson for adult criminal prosecution. The statutory provision for transfer requires a finding, after a hearing, that the transfer would be in the interest of justice and also 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: 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; the availability of programs designed to treat the juvenile's behavioral problems.

18 U.S.C. Sec. 5032.

The district court began its review of these factors at a hearing held on March 30, 1995. At that hearing, the court reviewed the issues At the start of the April 12 hearing, the court addressed the request of Nelson's attorney to have Nelson testify on the transfer factors. The court responded to the request as follows:

                to be resolved and the parties substantially agreed that the issues could be resolved on the papers submitted, including certain psychological reports submitted by experts retained by the government and by Nelson.  The court strongly indicated that the nature of the offense factor, referred to as "Factor 2," was the only one that might favor the government's position in this case:  "I guess my biggest problem in these papers is on Factor 2, which is probably the strongest, if not the only, factor that operates in favor of adult status."   The court indicated that "the real question" was "the nature of [the government's] proof" with regard to that factor.  The hearing was then adjourned to April 12, 1995, at which time further argument was heard on the submitted papers
                

I guess my question is, why do you want it, in light of what I said at the last hearing, that essentially I had resolved the five factors, other than the seriousness of the crime, in favor of the defendant or weighing in the defendant's favor.

The court then heard further argument, principally on the seriousness factor and then announced its decision from the Bench. Before reviewing its findings as to each of the factors, the court stated its conclusion: "All but one of the statutory factors here weigh in favor of treating Mr. Nelson as a juvenile for the purposes of these proceedings."

The court found that the age and social background factor favored the retention of juvenile status. Nelson was 16 years of age at that time of the offense and the district court indicated that the fact that Nelson was then 19 would not be used against him in light of the government's delay in filing the federal charge. The court opined that Nelson is "the product of a less than stable family and social environment" but "does not suffer from significant psychopathology or have strong anti-social tendencies."

In reviewing the nature of the alleged offense, the district court noted that there were four possible offenses that would govern the sentence to be imposed under the federal homicide statute: first degree murder, second degree murder, voluntary manslaughter and involuntary manslaughter. The...