United States v. Juvenile Male

• Citation: 844 F.Supp.2d 312
• Decision Date: 02 February 2011
• Docket Number: No. 10–CR–519 (JFB).,10–CR–519 (JFB).
• Parties: UNITED STATES of America, v. JUVENILE MALE, Defendant.
• Court: U.S. District Court — Eastern District of New York

844 F.Supp.2d 312

UNITED STATES of America,

v.JUVENILE MALE, Defendant.

No. 10–CR–519 (JFB).

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

Feb. 2, 2011.

John Joseph Durham, United States Attorneys Office, Central Islip, NY, for United States of America.

Terrence P. Buckley, Terrence P. Buckley, Esq., Commack, NY, for Defendant.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

On July 6, 2010, the government filed a Juvenile Information (“Information”) against defendant Juvenile Male (“the defendant”) charging him with two counts of attempted murder in aid of racketeering, 18 U.S.C. § 1959(a)(5); two counts of assault with a dangerous weapon in aid of racketeering, 18 U.S.C. § 1959(a)(3); and two counts of discharging a firearm in connection with a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). The government subsequently moved, pursuant to 18 U.S.C. § 5032, to transfer the case to district court in order to prosecute the defendant as an adult. On January 20, 2011, after written submissions had been filed with the Court, the Court conducted an evidentiary hearing on the government's transfer motion.¹ This Memorandum and Order contains the Court's findings pursuant to 18 U.S.C. § 5032.

For the reasons set forth herein, the government's motion to transfer to adult status is granted. In other words, based upon the record and after carefully analyzing the statutory factors, the Court concludes in its discretion that the government has met its burden of proving by a preponderance of the evidence that the defendant's transfer to adult status is warranted in the interest of justice.

I. The Charges ²

The charges against the defendant stem from the government's continuing investigation into the activities of the violent street gang La Mara Salvatrucha (“MS–13”). (Gov't Mem. of Law at 2.) Since approximately 1998, members of MS–13 on Long Island are alleged to have engaged in street wars with rival gangs that have resulted in the murder, shooting, and assault of MS–13 and rival gang members, as well as their families and innocent bystanders. ( Id.) In addition to targeting rival gang members, MS–13 members have engaged in violent attacks on individuals whom they mistakenly believe are in a rival gang and on individuals whom they believe are cooperating with law enforcement. ( Id. at 2–3.) Twenty-two defendants allegedly associated with MS–13 have been charged with various crimes in a 42–count superseding indictment unsealed on July 30, 2010 in United States v. Prado, No. 10–cr074 (JFB).

As set forth in the government's transfer motion, MS–13 members agree at the time of their induction into the gang to kill “chavalas,” or members of rival gangs, whenever possible. ( Id. at 4.) In this case, the defendant has been charged in connection with two attempted murders of rival gang members, one involving an alleged member of the 18th Street Gang and another involving an alleged member of the Salvadorans With Pride (“SWP”) Gang. Specifically, the first attempted murder allegedly occurred on June 6, 2009, at approximately 7:30 p.m. ( Id. at 5.) At that time, the victim, identified in the government's papers as “John Doe # 1,” was standing in front of a Golden Crust store on Ann Street in Hempstead, New York. ( Id.) John Doe # 1 had tattoos on his arms of a “1” and an “8,” which were indicative of membership in the 18th Street Gang. ( Id.) While John Doe # 1 was standing outside of the store, the defendant allegedly approached him and shot him four times in the chest. ( Id.) Although John Doe # 1 was treated for life-threatening injuries and remained in a coma for one month, he ultimately survived the shooting. ( Id. at 5–6.)

As charged by the government, the second attempted murder occurred approximately one month later, on July 1, 2009. ( Id. at 6.) On that date, at approximately 6:00 p.m., an individual identified as “John Doe # 2” was sitting in the driver's seat of a 2007 Nissan Sentra (“the Sentra”) on Wellington Street in Hempstead, New York. ( Id.) John Doe # 2, who has been identified as a member of SWP, allegedly observed the defendant sitting in the driver's seat of a Nissan Maxima (“the Maxima”) that was parked adjacent to the Sentra. ( Id.) While the defendant waited in the Maxima, another male allegedly exited the passenger side of the Maxima, armed with a handgun, approached the Sentra, and fired approximately five shots from several feet away from John Doe # 2's window. ( Id.) The shooter allegedly then got back into the Maxima, and the defendant drove away. John Doe # 2, who survived the attack, was shot once in the elbow. ( Id.)

The defendant was arrested the following day, on July 2, 2009, by members of the Nassau County Police Department and initially was charged in Nassau County Court in connection with the shootings. ( Id. at 7–8.) Subsequently, on May 7, 2010, United States Magistrate Judge Arlene Lindsay signed an arrest warrant for the defendant and he was charged federally, first by complaint and then pursuant to the Juvenile Information. ( Id. at 8.) ³

II. Legal Standard For Discretionary Transfer

“A juvenile fifteen years of age or older who is ‘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’ may be proceeded against as an adult where a district court, after a transfer motion by the Attorney General, finds that it is ‘in the interest of justice’ to grant a transfer.” United States v. Nelson, 68 F.3d 583, 588 (2d Cir.1995) (“Nelson I ”) (quoting 18 U.S.C. § 5032).⁴ In evaluating whether a transfer to adult status would be “in the interest of justice,” a district court must consider the following six factors and make findings on the record as to each: (1) the juvenile's age and social background; (2) the nature of the offense alleged; (3) the nature and extent of any 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) available programs that are designed to treat the juvenile's behavior problems. See18 U.S.C. § 5032; Nelson I, 68 F.3d at 588. Given the presumption that exists in favor of juvenile adjudication, the burden is on the government to establish by a preponderance of the evidence that transfer is warranted. See Nelson I, 68 F.3d at 588;United States v. John Doe # 3, 113 F.Supp.2d 604, 605 (S.D.N.Y.2000).

Although the Court must evaluate each of the six factors outlined in § 5032, it need not afford each of these factors equal weight, and instead “may balance the factors in any way that seems appropriate to it.” Nelson I, 68 F.3d at 588. In particular, the Second Circuit has explained that “when a crime is particularly serious, the district court is justified in weighing this factor more heavily than the other statutory factors.” Id. at 590. This is particularly true when the case involves “[t]he heinous nature of the crime of intentional murder,” which “certainly may be a factor entitled to special weight.” Id. Furthermore, the defendant's potential for rehabilitation typically should also be given “special emphasis.” United States v. Ramirez, 297 F.3d 185, 193 (2d Cir.2002). Indeed, the notion of rehabilitation “permeat[es] the transfer decision ... [and] clearly is one of the primary purposes of the juvenile delinquency provisions.” United States v. Nelson, 90 F.3d 636, 640 (2d Cir.1996) ( “Nelson II ”) (internal quotation marks and citation omitted). Nevertheless, even though a juvenile's potential for rehabilitation is a “crucial determinant in the transfer decision,” this factor “must be balanced against the threat to society posed by juvenile crime.” Id. (internal quotation marks and citations omitted). Accordingly, it is not sufficient for a court to find that there is merely a “glimmer of hope” for a juvenile's future treatment prospects. Nelson I, 68 F.3d at 590. Instead, a court must determine that the juvenile is “likely to respond to rehabilitative efforts,” which is a standard that “strikes the appropriate balance [between] .... affording a defendant juvenile status when rehabilitation will work (and the rehabilitative goals of the juvenile system will be achieved), and allowing transfer to adult status when it will not (and the concerns of public protection and punishment become paramount).” Nelson II, 90 F.3d at 640 (citations and alterations omitted).⁵

III. Analysis of Factors

A. Juvenile's Age and Social Background

The Second Circuit has instructed that a district court should consider a juvenile defendant's age not only at the time of the offense, but also at the time of the transfer hearing. See Nelson I, 68 F.3d at 589 (finding that district court erred in refusing to consider juvenile's age at the time of the transfer hearing and noting that “unless the government intentionally delays the filing of juvenile charges, there is every reason to give weight also to the age at the time of the transfer motion. The statutory factor specifies only ‘age,’ and certainly, current age is significant for a determination of whether juvenile-type rehabilitation programs would be appropriate for the individual subject of the transfer application.”). The closer the juvenile is to the age of majority, the more this factor weighs in favor of transfer. See United States v. Juvenile Male, 554 F.3d 456, 468–69 (4th Cir.2009) (“A juvenile's age toward the higher end of the spectrum (eighteen), or the lower end (fifteen), is to be weighed either for or against transfer. Here, we agree that [the defendant's] chronological age (seventeen years and nine months) supports his transfer.”); United States v. A.R., 203 F.3d 955, 961 (6th Cir.2000) (“[T]he [district] court's noting A.R.'s advanced age was consistent with this Court's and other courts' conclusions that the closer a defendant is to eighteen, the greater the presumption that he be...