United States v. Juvenile Male

• Decision Date: 06 August 2018
• Docket Number: No. 17-CR-366 (JFB),17-CR-366 (JFB)
• Parties: UNITED STATES of America, v. JUVENILE MALE, Defendant.
• Court: U.S. District Court — Eastern District of New York

327 F.Supp.3d 573

UNITED STATES of America,

v.JUVENILE MALE, Defendant.

No. 17-CR-366 (JFB)

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

Signed August 6, 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 Paul G. Scotti, Assistant U.S. Attorney.

Defendant Juvenile Male is represented by Joseph W. Ryan, Jr., Joseph W. Ryan, Jr. P.C., Melville Law Center, 225 Old Country Road, Melville, New York 11747.

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 July 19, 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, notwithstanding the statutory presumption in favor of juvenile adjudication, the government 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, although the defendant's age at the time of the offense (fifteen years, eleven months) and some other factors weigh against transfer, the balancing of all the statutory factors clearly supports transfer of the defendant to adult status in the interest of justice.

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. The defendant is charged with actively participating in four brutal murders for La Mara Salvatrucha, a violent street gang also known as the MS-13. The defendant's alleged participation in this premeditated, brutal execution of four young victims, by itself, warrants giving more weight to this factor than any other factor. However, the defendant's alleged extensive role in the crime makes this factor even more compelling in this case. The government asserts that the defendant was motivated to commit the murders in order to elevate his status in the gang and that he had the following alleged role: (1) the defendant participated in multiple meetings where the plan was discussed and designed in the weeks leading up to the murders; (2) on the day of the murders, the defendant communicated with two juvenile females, who were luring the intended victims into the woods where gang members were lying in wait to carry out the murders; (3) in this pivotal role, the defendant passed along updates to his fellow gang members as to the location and estimated arrival time of the victims; and (4) when the victims arrived, the defendant (using a machete) and his fellow gang members brutally attacked and killed the four victims. A defendant who is alleged to have actively participated in these murders in this depraved, premeditated way is extremely violent and dangerous to society, and 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). In short, in the Court's view, given the gravity of the alleged crimes and the defendant's alleged extensive role in these crimes, this is the most critical factor in this particular analysis and is a compelling factor in favor of transfer.

Second, although the defendant was under sixteen at the time of the offense, other aspects of the second factor—the defendant's age and social background—favor transfer. The defendant had the benefit of a supportive family in El Salvador, as well as the United States (where he lived with his mother). According to the defendant's own expert (Dr. Eric Goldsmith), he became disobedient in El Salvador and began interacting with MS-13 gang members. In fact, the defendant was sent to the United States for the specific reason of preventing him from joining the gang. Nevertheless, upon arriving to the United States, he rejected the support structure his mother tried to provide, and instead almost immediately chose to become a member of the MS-13 gang, with full knowledge of its violent nature and mission. In addition, the defendant is now seventeen years old and is close to the age of maturity, which weighs slightly in favor of transfer. In short, the Court finds that, given that the defendant allegedly committed the murders despite the stabilizing and deterring influences already in his life, the defendant's social background favors transferring him to adult status. There is a substantial risk that, if the defendant is returned to the same family structure that he had at the time he joined the gang and allegedly participated in these murders after five years of incarceration (assuming arguendo that he received the statutory maximum), he would again choose to become part of a criminal organization and engage in new violent activity.

Third, the defendant's minimal juvenile record weighs against transfer, but as explained below, the Court finds that, in the instant case, after balancing all 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, Dr. Goldsmith found that, although the defendant is immature, he has no intellectual limitations, met all of his developmental milestones within a normal time period, and has no sign of any major mental illness. The Court does not believe that his immaturity, brain development, and excessive use of marijuana adequately explain his alleged violent tendencies in this case (including his alleged premeditated, pivotal role in the murders). Moreover, Dr. Goldsmith acknowledged that the defendant was not coerced into joining the gang, but rather approached the gang himself and expressed interest in joining. Thus, the Court concludes that this factor weighs in favor of transfer.

Fifth, with respect to the nature of past treatment efforts and the defendant's response to those efforts, the Court notes that, although he has never been treated in a juvenile facility, the defendant did not respond well to treatment efforts that were made available to him in high school. In particular, when he began exhibiting negative behaviors in high school, the defendant was placed in a Community Reinvestment Program that was designed to steer him away from negative influences, such as marijuana use and gang association, and provide him with tools to be successful in school and strengthen his family relationships. This counseling program utterly failed to impact the defendant's behavior. In fact, it is alleged that he committed these murders while enrolled in the program, and such failed efforts certainly suggest that any future attempts at rehabilitation may not be successful. However, because the defendant has not had extensive treatment (such as formal treatment in a juvenile facility), the Court concludes that this factor only slightly favors transfer.

Finally, the availability of programs designed to treat the defendant's behavioral problems weighs 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 the factors with respect to the 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. Although the Court found Dr. Goldsmith to be credible and thoughtful in his approach, his findings and overall conclusions are insufficient (when considered in light of the entire record and all the statutory factors) to provide the Court with any degree of confidence that any juvenile rehabilitation efforts would be successful and would adequately mitigate the extreme degree of danger and high risk of recidivism that the defendant would otherwise pose to society if he were to be kept in the juvenile system. In fact, when the Court asked Dr. Goldsmith to assess the likelihood that the defendant would successfully complete the juvenile programs and not pose a risk to society at age twenty-one, he acknowledged...