United States v. Juvenile Male

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30587
Plaintiff-Appellee, D.C. No.
v.  CR-05-00025-2-
JUVENILE MALE, SEH
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
June 8, 2007—Seattle, Washington
Filed July 5, 2007
Before: Betty B. Fletcher and Harry Pregerson,
Circuit Judges, and James V. Selna,* District Judge.
Per Curiam Opinion
*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
7997
UNITED STATES v. JUVENILE MALE 7999
COUNSEL
David F. Ness, Assistant Federal Defender, Federal Defenders
of Montana, Great Falls, Montana, for the appellant.
Carl E. Rostad, Assistant U.S. Attorney, Great Falls, Mon-
tana, for the appellee.
OPINION
PER CURIAM:
In February 2005, the defendant-appellant (“defendant”)
was charged with “engaging in an act of juvenile delinquency
by committing second degree murder.” He was fifteen years
and eleven months old at the time of the incident, and was
eighteen years and seven months old when proceedings com-
menced.
In May 2005, the government moved to have the proceed-
ings transferred to adult criminal prosecution pursuant to the
8000 UNITED STATES v. JUVENILE MALE
Federal Juvenile Delinquency Act (“FJDA”), 18 U.S.C.
§ 5032. The government also filed a motion for observation
and study, requesting that the defendant be committed to the
custody of the Attorney General for a psychological examina-
tion, pursuant to 18 U.S.C. § 5037(e), to assist the court in
determining whether he should be transferred to adult status.
The district court granted the latter motion and ordered the
defendant to undergo an evaluation in accordance with the
factors listed in 18 U.S.C. § 5032. The defendant was trans-
ferred to the Dakota Horizons Youth Center, a division of the
Southwest Multi-County Correction Center, on June 10, 2005.
Upon completion of the evaluation, a report (“Dakota Hori-
zons Report”) was filed with the district court detailing the
experts’ observations and conclusions.
In December 2005, following receipt of the Dakota Hori-
zons Report, the district court held a hearing on the motion to
transfer. The government presented the testimony of an FBI
agent who had investigated the case. On December 15, 2005,
the district court granted the government’s motion to transfer
the case.
The defense filed a notice of interlocutory appeal. In
August 2006, this court remanded because the district court
had improperly concluded that it was required to assume, for
purposes of a transfer determination, that the juvenile com-
mitted the offense charged in the information. United States
v. Juvenile Male, No. 06-30038 (citing United States v. Juve-
nile, 451 F.3d 571 (9th Cir. 2006) (holding that assumption of
the defendant’s guilt is within the court’s discretion, but is not
mandatory)).
On remand, the district court exercised its discretion to
assume that the defendant committed the offense. The court
then “readopted and restated” its original findings of fact, as
well as its original conclusions of law, save the statement that
the assumption of the defendant’s guilt was mandatory.
UNITED STATES v. JUVENILE MALE 8001
The defendant now appeals from that amended decision.
We have jurisdiction to hear this interlocutory appeal, see
United States v. Gerald N., 900 F.2d 189, 191 (9th Cir. 1990),
and we review the district court’s decision for abuse of discre-
tion. See United States v. Brandon P., 387 F.3d 969, 976 (9th
Cir. 2004). As we have previously held, the district court
abuses its discretion when it fails to make the findings
required by § 5032 or when the findings it does make are
clearly erroneous. United States v. Doe, 94 F.3d 532, 536 (9th
Cir. 1996).
I.
[1] Under the FJDA, 18 U.S.C. § 5031 et seq., a juvenile
who is fifteen years old or older and who is alleged to have
committed an act which, if committed by an adult would be
a felony that is a crime of violence, may be proceeded against
as an adult if the district court determines that it would be “in
the interest of justice” to do so. 18 U.S.C. § 5032; see Bran-
don P., 387 F.3d at 976. “The government has the burden of
establishing that prosecution as an adult is warranted.” Doe,
94 F.3d at 536; see Brandon P., 387 F.3d at 977.
[2] In this case, there is no question that the first two pre-
requisites for transfer under 18 U.S.C. § 5032 are met: (1)
defendant was over fifteen years old at the time of the second-
degree murder for which he was charged, and (2) the crime,
if committed by an adult, would be a felony that is a crime of
violence. Only the third requirement of § 5032—that transfer
be “in the interest of justice”—is in dispute.
[3] Congress has established six factors that a district court
must consider to determine whether transfer would serve the
interest of justice:
(1) the age and social background of the juvenile;
(2) the nature of the alleged offense;
8002 UNITED STATES v. JUVENILE MALE
(3) the extent and nature of the juvenile’s prior
delinquency record;
(4) the juvenile’s present intellectual development
and psychological maturity;
(5) the nature of past treatment efforts and the
juvenile’s response to such efforts;
(6) the availability of programs designed to treat
the juvenile’s behavioral problems.
18 U.S.C. § 5032.
II.
[4] As required by § 5032, the district court considered
each of the six factors and made findings on the record. Cf.
Brandon P., 387 F.3d at 977. We find that the court made a
clearly erroneous finding with regard to the defendant’s social
background: the district court’s determination that the defen-
dant experienced “no domestic violence . . . while living with
his grandparents” is contrary to the evidence of record.1
[5] In addition, in describing the defendant’s social back-
ground, the district court compared the defendant to other
Native American youths.2 This comparison was not based on
information in the record and did not assist in the individual-
1
We also note that the court made no mention of his mother’s problems
with alcohol and drugs, nor any of the episodes of violence the defendant
experienced or witnessed as a child—which included the shooting of his
grandfather in the throat, the shooting of his uncle with a gunshot, and the
shooting death of his cousin.
2
The district court concluded that the defendant’s “social background in
many ways [wa]s not markedly different from that of hundreds of other
youngsters who grow up on Montana’s Native American reservations, and
who never resort to violent and destructive behavior of the sort disclosed
by the record in this case.”
UNITED STATES v. JUVENILE MALE 8003
ized assessment of the juvenile’s unique circumstances
required by the FJDA. Cf. United States v. Juvenile, 347 F.3d
778, 787 (9th Cir. 2003) (stating that the FJDA “requires an
assessment of the totality of the unique circumstances and
rehabilitative needs of each juvenile”).3
[6] Finally, the district court was required under § 5032 to
make specific findings about “the availability of programs
designed to treat the juvenile’s behavioral problems.” The dis-
trict court found that the Bureau of Prisons has a juvenile
facility in Montana that offers an educational program and
skills training, as well as substance abuse and anger manage-
ment treatment. The court also stated that “[s]imilar educa-
tional and treatment programs are available at adult facilities.”
This finding was not based on facts in the record; rather the
court took “judicial notice” of the availability of such pro-
grams. We need not determine whether it was appropriate for
the court to make such a finding on the basis of “judicial notice,”4
as the defendant has not properly raised this argument on
appeal.
We find no merit in defendant’s arguments challenging
other aspects of the district court’s analysis.
3
Because of the structure of the FJDA, Native American youth are dis-
proportionately subject to federal court jurisdiction for their delinquency
offenses. This court has therefore noted that a defendant’s status as Native
American may merit special consideration. Juvenile, 347 F.3d at 789 n.10
(9th Cir. 2003) (holding that consideration should have been given to the
ways in which a particular placement would distance a Native American
youth from his family and tribe, and noting more generally that district
courts “should give due consideration to the unique concerns and needs”
of Native American youth). However, this court has never suggested that
group-based comparisons of the sort engaged in by the district court below
are appropriate when evaluating a juvenile’s social background. We do not
believe such a comparison is relevant to the § 5032 inquiry.
4
While before the district court defendant’s counsel agreed with the
government as to the availability of appropriate youth facilities, but
objected to the the claim that adequate rehabilitation programs were avail-
able at adult facilities.
8004 UNITED STATES v. JUVENILE MALE
III.
[7] Because we find that the district court made findings
that were clearly erroneous, we vacate the district court’s rul-
ing and remand for further proceedings.
VACATED AND REMANDED.