United States v. Juvenile Male

• Decision Date: 19 June 2018
• Docket Number: No. 17–CR–367 (JFB),17–CR–367 (JFB)
• Citation: 316 F.Supp.3d 553
• Parties: UNITED STATES of America, v. JUVENILE MALE, Defendant.
• Court: U.S. District Court — Eastern District of New York

316 F.Supp.3d 553

UNITED STATES of America,

v.JUVENILE MALE, Defendant.

No. 17–CR–367 (JFB)

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

Signed June 19, 2018

The United States is represented by Richard P. Donoghue, U.S. Attorney, Eastern District of New York, 610 Federal Plaza, Central Islip, New York 11722, by John J. Durham, Raymond A. Tierney, Paul G. Scotti, and Michael T. Keilty, Assistant U.S. Attorneys.

Defendant Juvenile Male is represented by Gerald J. DiChiara, Law Offices of Gerald J. DiChiara, 3 Park Avenue, 31st Floor, Suite 1501, New York, New York 10016.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, United States District Judge

On July 10, 2017, the government filed a Juvenile Information against defendant Juvenile Male ("the defendant"),¹ charging him with one count of racketeering by engaging in conspiracy to murder and murder, 18 U.S.C. § 1962(c) ; one count of racketeering conspiracy, 18 U.S.C. § 1962(d) ; one count of conspiracy to murder rival gang members, 18 U.S.C. § 1959(a)(5) ; and four counts of murder, 18 U.S.C. §§ 2, 1959(a)(1). These charges relate to the alleged murders of Justin Llivicura, Michael Lopez, Jorge Tigre, and Jefferson Villalobos in a wooded area near the Central Islip Recreational Center in Central Islip, New York on April 11, 2017 ("the April 11 murders").

Before the Court is the government's motion under 18 U.S.C. § 5032 to transfer the case to district court in order to prosecute the defendant as an adult. On June 5, 2018, after receiving written submissions from the parties, the Court held a hearing on the motion. This Memorandum and Order contains the Court's findings under 18 U.S.C. § 5032.

After carefully analyzing the required statutory factors, the Court concludes in its discretion that the government has met its burden of proving by a preponderance of the evidence that, notwithstanding the statutory presumption in favor of juvenile adjudication, the government in this case has rebutted that presumption and met its burden of proving by a preponderance of the evidence that the defendant's transfer to adult status is warranted. In particular, as discussed in detail below, this defendant was just two months shy of his eighteenth birthday at the time of the alleged murders, left El Salvador to avoid gang violence, had the benefit of a supportive and nurturing immediate family and extended family system (including living with his parents and two siblings on Long Island), possesses relative strengths in common sense and verbal conceptual reasoning, and showed academic success in school in El Salvador. Notwithstanding his age (being nearly eighteen years old), relatively strong academic background, and positive social influences, the defendant allegedly still chose to actively participate in these brutal, premeditated murders in connection with his involvement with an extremely violent street gang. Moreover, he is now nineteen years old and the Court concludes, based upon the entire record, that he is not likely to be rehabilitated in the juvenile justice system. Although some other factors weigh against transfer, they are greatly outweighed by these factors that support transfer to adult status.

First, the nature of the alleged offenses overwhelmingly favors, in the interest of justice, transferring the case to district court to try the defendant as an adult. As detailed below, the defendant is charged with actively participating in four brutal murders for La Mara Salvatrucha, a violent street gang also known as MS–13. More specifically, the defendant and his co-conspirators allegedly lured the unsuspecting victims to a prearranged location in the Central Islip woods where they murdered them with machetes, knives, and tree limbs. The heinous killings were allegedly motivated by the fact that the victims were suspected members of the rival 18th Street Gang, and had falsely represented themselves as MS–13 members. A defendant who is alleged to have participated in this manner in the brutal murder of four individuals is unlikely to be rehabilitated within the juvenile justice system, especially given the limited sentencing options available in that system if the defendant were found guilty (such as the statutory maximum of five years' incarceration).² In short, in the Court's view, given the gravity of the alleged crimes here, this is the most critical factor in this particular analysis and is a compelling factor in favor of transfer.

Second, the defendant's age and social background also strongly favor transfer. The defendant was just two months shy of eighteen when he participated in the April 11 murders, and is now over nineteen years old. As for the defendant's social background, the defendant benefited from a supportive family and community ties, and still allegedly chose to associate with MS–13 and participate in these brutal murders. Before moving to the United States, the defendant was raised by his extended family and was an active member of his church and community. Upon arriving in Long Island, the defendant lived with his immediate family, with whom he describes having a "close" relationship. The defendant was a relatively strong student. The defendant was traumatized by a run-in with a gang in El Salvador, during which the gang killed his uncle, and which led him to flee the country. The Court finds that, given that the defendant allegedly committed the murders despite these stabilizing and deterring influences, the defendant's age and social background strongly favor transferring him to adult status.

Third, the defendant's lack of a juvenile record weighs against transfer, but as explained below, the Court finds that, in the instant case, after balancing all of the statutory factors (including this one), transfer is in the interest of justice.

Fourth, as for the defendant's present intellectual development and psychological maturity, the Court finds this factor to be neutral. A neuropsychological screening of the defendant revealed that his intellectual functioning was at the low average range and that he was emotionally and socially immature. On the other hand, the defendant's fairly strong academic record suggests a significantly higher level of intellectual development and maturity. Thus, on balance, this factor neither favors nor disfavors transfer.

The remaining two factors—the nature of past treatment efforts and the defendant's response to those efforts, as well as the availability of programs designed to treat the defendant's behavioral problems—weigh against transfer. There is no evidence that, before his detention in connection with this case, the defendant received any formal treatment or counseling. As noted, however, the defendant's grades and behavior during his detention over the last eleven months have been very positive. Accordingly, the Court concludes that this factor weighs slightly against transfer. As for the availability of programs designed to treat the defendant's behavioral problems, there is some indication that facilities in Pennsylvania and Maine would be available to the defendant if found guilty as a juvenile. Accordingly, this factor also weighs slightly against transfer.

In sum, although some factors weigh against transfer, they do not outweigh the other factors that, in combination, overwhelmingly favor transfer. As the Second Circuit has emphasized, "the goal of rehabilitation must be balanced against ‘the threat to society posed by juvenile crime.’ " United States v. Nelson , 90 F.3d 636, 640 (2d Cir. 1996) (quoting United States v. J.D. , 525 F.Supp. 101, 103 (S.D.N.Y. 1981) ). The Sixth Circuit has similarly reasoned that "a motion to transfer is properly granted where a court determines that the risk of harm to society posed by affording the defendant more lenient treatment within the juvenile justice system outweighs the defendant's chance for rehabilitation." United States v. T.F.F., A Juvenile Male , 55 F.3d 1118, 1121 (6th Cir. 1995) (quoting United States v. One Juvenile Male , 40 F.3d 841, 844 (6th Cir. 1994) ). Here, after analyzing all of the factors with respect to this defendant, the Court concludes that there is no likelihood that the goals of the juvenile system will be achieved while the defendant is in juvenile custody and, under the particular circumstances of this case, "the concerns of public protection and punishment become paramount." Nelson , 90 F.3d at 640. In other words, the juvenile justice system is simply ill-equipped and woefully insufficient, under the circumstances of this case, to adequately address, in the interest of justice, these violent crimes when considered in conjunction with the other statutory factors.

Accordingly, after thoroughly considering and weighing the statutory factors, the Court has determined in its discretion that treating the defendant as an adult in this case will serve the interest of justice.³

I. THE CHARGES ⁴

The charges against the defendant stem from the government's continuing investigation into MS–13. (Gov't Mem. at 2.) Since approximately 1998, MS–13 members on Long Island have engaged in street wars with rival gangs, which have resulted in the assault and murder of MS–13 and rival gang members, their family members, and innocent bystanders. (Id. at 2–3.) On induction into MS–13, members agree to kill rival gang members whenever possible. (Id. at 4.)

The defendant, an alleged MS–13 associate, is charged in connection with the murders of four suspected 18th Street Gang members. (Id. at 3–4.) According to the government, the defendant was part of a conspiracy to lure the four victims to their deaths, and participated in carrying out the murders. (Id. at 6–8.) These murders were allegedly carried out because MS–13 suspected that the victims and a fifth individual present that night, who fled the scene ("Surviving Victim"), had falsely represented themselves to be MS–13 members. (Id. at 7.)

In furtherance of the conspirators' plan, on April 11, 2017, Juvenile Female 1 and...