US v. Nelson

• Decision Date: 21 March 1996
• Docket Number: No. CR-94-0823 (DGT).,CR-94-0823 (DGT).
• Parties: UNITED STATES of America, v. Lemrick NELSON, Jr., Defendant.
• Court: U.S. District Court — Eastern District of New York

921 F. Supp. 105

UNITED STATES of America, v. Lemrick NELSON, Jr., Defendant.

No. CR-94-0823 (DGT).

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

March 21, 1996.

COPYRIGHT MATERIAL OMITTED

Zachary W. Carter, United States Attorney, Eastern District of New York, Brooklyn, NY, for Plaintiff.

Christine E. Yaris, New York City, Trevor Headley, Brooklyn, New York, for Defendant.

MEMORANDUM AND ORDER

TRAGER, District Judge:

The government has moved to transfer the defendant, Lemrick Nelson, to adult status. I previously decided that the defendant should be tried as a juvenile. The government appealed, and the Second Circuit remanded the case for reconsideration of the motion. United States v. Lemrick Nelson, 68 F.3d 583 (2d Cir.1995).

Background

(1)

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 on August 19, 1991. Specifically, Nelson was charged with using force on and wilfully injuring or attempting to injure Yankel Rosenbaum, an Orthodox Jew, because of his religion and because he was enjoying facilities provided and administered by the City of New York, namely the public streets, resulting in Rosenbaum's bodily injury and death. The Information cites 18 U.S.C. § 245(b)(2)(B) which imposes criminal penalties for civil rights violations involving interference with federally protected activities and 18 U.S.C. §§ 5031-5042 providing for juvenile proceedings in district courts.

Title 18 United States Code §§ 5031-5042 evinces a strong presumption that a person charged with committing certain enumerated offenses while under the age of eighteen shall be proceeded against as a juvenile. United States v. Juvenile Male # 1, 47 F.3d 68, 70 (2d Cir.1995) ("Juvenile adjudication is presumed appropriate unless the government establishes that prosecution as an adult is warranted."); United States v. A.R., 38 F.3d 699, 706 (3d Cir.1994) ("The statute clearly intends a presumption of juvenile treatment, and the government bears the burden of establishing that transfer is warranted."); United States v. Parker, 956 F.2d 169 (8th Cir.1992), cert. denied, Potter v. U.S., ___ U.S. ___, 114 S.Ct. 146, 126 L.Ed.2d 108 (1993); United States v. M.L., 811 F.Supp. 491 (C.D.Cal.1992). Title 18 United States Code Section 5032 ¶ 1 specifically provides:

A juvenile alleged to have committed an act of juvenile delinquency ... shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that (1) the juvenile court or other appropriate court of a state does not have jurisdiction or refuses to assume jurisdiction ... (2) the State does not have available programs and services adequate for the needs of juveniles or (3) the offense charged is a crime of violence that is a felony or an offense described in §§ 841, 952(a), 955 or 959 of Title 21, and that there is a substantial federal interest in the case or the offense to warrant the exercise of federal jurisdiction....

In situations such as the one before this court, federal jurisdiction exists because the federal government has a substantial interest in the case. 18 U.S.C. § 5032 ¶ 1(3). Upon finding jurisdiction, a hearing must be held to determine if transferring the defendant to adult status is in the interest of justice. Only upon making such a finding may the government proceed against that person as an adult. 18 U.S.C. § 5032 ¶ 5.

In order to make such a determination, the statute directs that a district court consider and make findings with respect to each of the following six factors: (1) the juvenile's age and social background, (2) the nature of the alleged offense, (3) the extent and nature of the juvenile's prior delinquency record, (4) the juvenile's intellectual development and psychological maturity, (5) the nature and success of past treatment efforts, and (6) the availability of programs to treat juveniles' behavioral problems. 18 U.S.C. § 5032 ¶ 6. I began its review of these factors at a hearing held on March 30, 1995. That hearing was adjourned to April 12, 1995 at which time I determined that Nelson should be tried as a juvenile. On an appeal by the government, on October 17, 1995, the Second Circuit remanded for reconsideration. The defendant's request for an en banc rehearing was denied. On February 8, 1996, this court conducted an additional hearing focusing on Nelson's intellectual development and psychological maturity, the availability of programs for a juvenile older than twenty years of age, as well as his potential for rehabilitation.

(2)

Nelson was born on July 31, 1975. He was 16 years and 3 weeks of age at the time of the incident, 19 years of age at the time the Information was filed, and presently is 20½ years old. Prior to his arrest at the event subject to the Information, Nelson had no criminal record. However, since his arrest in 1991, Nelson has pled guilty, as an adult, in Georgia state court, Dekalb County, to aggravated assault and carrying a concealed weapon. Specifically, Nelson pled guilty to aggravated assault for cutting the victim's jacket and skin with a razor blade on January 14, 1994 and carrying a concealed weapon, a scalpel, on March 5, 1994. Gov't Ex. 5. In addition, on June 23, 1995, Nelson was charged with resisting arrest while allegedly smoking marijuana, Gov't Ex. 7, and, furthermore, was arrested approximately ninety minutes after leaving this court on February 8, 1996, for criminal trespass in which he allegedly would not leave the lobby of a building, which was not his residence, and was carrying a box cutter. Nelson has not been tried, nor has he pled guilty to either of these charges.

Two psychologists interviewed and tested Nelson in November 1994, submitted reports in December 1994 and then testified at the hearing on February 8, 1996. The government's expert, Dr. Naftali Berrill, directs the New York Forensic Mental Health Group, which is a private practice that, according to Dr. Berrill, "sees a wide range of patients for both treatment and diagnostic work-ups. With respect to treatment, often we see people who are either offenders or probationers. We also see victims of violence or family members of victims of violence." Hearing Tr. at 4-5. From 1988 to 1991, Berrill was the director and chief psychiatrist at Bronx Family Court in which he managed the clinic and provided direct service to individuals in delinquency, felony, neglect, and abuse cases. Id. at 8. The United States Department of Probation and Pre-Trial Services often sends people to Dr. Berrill's practice. Hearing Tr. at 4-5.

The defendant's expert, Dr. Ife Landsmark, is in private practice serving children, adolescents, couples and families. She also works as a consultant serving community-based agencies in Brooklyn and Manhattan that work with children in foster care. Hearing Tr. at 158-59. She counsels those children and families, trains social workers and other clinicians and performs psychological testing "to determine the needs of the child and how these needs may be best served." Id. at 159. Both her training and her practice focus on serving children through young adults. Id. at 160. Significantly, for at least six years, Landsmark worked as the clinical director of residential treatment centers which housed and treated conduct-disorder children who could not be rehabilitated in the community. Hearing Tr. at 163; Resume of Ife A. Landsmark.

The results of the various tests administered by the doctors were generally consistent. Both Dr. Berrill and Dr. Landsmark found that Nelson has a low average to average I.Q. Berrill's Report at 12; Landsmark's Report at 5. Somewhat more elaborately, Dr. Landsmark explained that she administered a series of intelligence tests from which she deduced that while his cognitive abilities are average and his verbal intelligence and reasoning are below average, on a language-free exam, measuring abstract/figural problem solving, his score falls within the high average range. Landsmark's Report at 5.

Dr. Landsmark further testified that Nelson was raised in an unstable family and social environment. His mother had suffered from severe emotional problems from the time of his birth. Landsmark's Report at 2-4. Also, Nelson had difficulty in school. School records show that he was identified as "a youngster at risk by the end of the fourth grade." Landsmark's Report at 2. At the end of the seventh grade he was suspended for bringing a toy gun to class and subsequently was placed in special education. Id. Academic underachievement was evident throughout his schooling with complaints of classroom disruption and poor motivation. Interpersonal relationships with peers and adults were also "poor and impulsively driven." Id. Both Dr. Landsmark and Dr. Berrill agreed that his school behavior demonstrates Nelson suffers from a "conduct disorder;" they also agreed that he does not suffer from any significant psychopathology. Berrill's Report at 15; Hearing Tr. at 19-22; Landsmark's Testimony at 186, 211.

Despite these agreements, the doctors' opinions varied significantly in their interpretation of many of the test results and their other studies. For example, Dr. Berrill found that Nelson is functioning as a young adult because he was able to achieve a modicum of independence — he lived in Georgia without his family, paid for an apartment on his own, worked, and had goals for the future. Berrill's Report at 16. On the other hand, Dr. Landsmark found that Nelson is functioning as an adolescent and not an adult. According to Dr. Landsmark, "his attempt to cope with unmet dependency needs has led to their denial and to the development of a sense of self-reliance that is inflated and tends towards grandiosity." Id. In other words, she explained that she views Nelson's ability to live on...