912 F. 2d 470 - United States v. Doe

Doe, a juvenile, was charged with one count of conspiring to commit an assault in violation of 18 U.S.C. Sec. 113(c), one count of burglary in violation of 18 U.S.C. Sec. 13 and Haw.Rev.Stat. Secs. 708-810 (1989), and three counts of assault in violation of 18 U.S.C. Sec. 113(c). The government filed a motion to proceed against a juvenile as an adult, as provided for in 18 U.S.C. Sec. 15032. The district court had jurisdiction pursuant to 18 U.S.C. Sec. 5032. The district court granted the government's motion and this interlocutory appeal followed. We affirm.

The government moved to dismiss this appeal, contending that an order transferring a juvenile for adult prosecution is not immediately appealable under the collateral order exception of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Our law is to the contrary. United States v. Gerald N., 900 F.2d 189, 190-91 (9th Cir.1990) (Gerald N.). Therefore, we have jurisdiction.

The decision to transfer a juvenile for prosecution as an adult is within the sound discretion of the district judge as long as the district judge considers and makes specific findings as to the following six factors: (1) the juvenile's age and social background; (2) the nature of the alleged offense; (3) the prior record of the offender; (4) the juvenile's intellectual development and psychological maturity; (5) the nature of and response to past treatment; and (6) the availability of programs designed to treat the juvenile's problems. Id. at 191; United States v. Alexander, 695 F.2d 398, 399-400 (9th Cir.1982) (Alexander ). Thus, such a transfer is subject to review only for an abuse of that discretion. Alexander, 695 F.2d at 400.

The district judge made specific findings that Doe had a background of drug and alcohol abuse and was a member of an extremely vicious gang (factor 1); that Doe's offense was a particularly brutal and unprovoked assault (factor 2); that he had been arrested six times, including an arrest for shoplifting just one week after his involvement in this alleged incident (factor 3); that according to the psychologist, he was neither intellectually immature nor incompetent and he is anti-social and not likely to benefit from therapy or rehabilitation programs, and that he displayed a disturbing lack of remorse which was indicative of the probable failure of rehabilitation (factor 4). It does not appear from the record that these factual determinations are clearly erroneous.

The district judge conceded that there have been no formal efforts at treating Doe's problems and the record indicates that the probation officer has identified certain programs which treat juveniles and juvenile-related problems (factors 5 and 6). However, it is not "an abuse of discretion to find one factor more compelling than the others." Gerald N., 900 F.2d at 191, quoting Alexander, 695 F.2d at 401. In Alexander, the district judge's transfer order was upheld where he had found all but two of the factors either neutral or cutting both ways. 695 F.2d at 401; see also Gerald N., 900 F.2d at 191. In this case, four of the factors clearly cut against Doe. We conclude that the district judge did not abuse his discretion.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.