before we get into the merits of this and mr humphrey i have a question about the effect of the fact that the defendant is now twenty one years old has been for six  months there are two questions that come to mind first is desist mean his name should still remain initials or should it now be spread on the record and the second question is whether the dispute about transfer to adult prosecution is now moot now that he's an adult do we in the briefs don't discuss either of these questions but they they worry me so do you have anything to say about them i do your honor i believe because this process did begin when he was still below the age of majority this process with the information and the motions to transfer he was twenty years  l right before actually i believe this case the opinion of the district court below came out about a week before and i'm trying you know those things you know i'm asking about the legal consequence of the fact that he's now an adult i looked in the statute and the statute didn't seem to say anything about what happens when somebody is a juvenile when the prosecution begins but becomes twenty one during its co although it does say that anybody who is prosecuted under this statute must absolutely must be housed with juveniles and cannot be housed with adults so if somebody remains in the juvenile process even after he turns adult you can know incarcerating a thirty year old with thirteen year olds because once a juvenile always a trooper it strikes me as unlikely but in a bit the statute doesn't resolve it do we have cases that resolve this question what happens when somebody turns twenty one during the course of a juvenile prosecution no this is an issue that is the answer no there are no cases or just no you haven't found any such cases this was an issue that actually we did discuss at the at the district court level we have not found any case right to that effect i think we need this brief because we need to know whether this case is moot so we will ask the parties to file supplemental  within fourteen days addressing two distinct questions first whether the defendant's name should now be unsealed and second whether the case whether the dispute about juvenile versus adult prosecution is whether or not the district court of use its discretion in determining in favor of transfer of the appellant from juvenile to adult status obviously as a part of this determination the court applied the six backers under eighteen u s c five zero three two in coming to their conclusion now there isn't necessarily a lot of guidance about how these six factors should be applied and the district court has a lot of discretion in weighing how they see these factors coming out in favor of adult transfer or remaining in remaining as a juvenile status i believe in this instance the court his discretion and for a number of reasons primarily i think that first of all this isn't like a score or a scoreboard where you say ok i have more than i have four more of the six factors therefore i went the court can look at each of these factors and they can weigh them in the manner that they see that's most appropriate i believe in this particular instance the district court did not necessarily give enough weight to certain factors  involved in my client's personal background and also the issue judge that at this point as we're looking at my client he is twenty one years old at the time of this determination twenty but i still think that that's a significant factor when you're comparing the fact that the behavior that is alleged by the government and their information is behavior that occurred age fifteen there were the main witness as far as the transfer in this case was my client's deputy juvenile officer and i think there were a number of points that she brought up that are critical that i believe that the district court should have given more weight to as far as making this determination first of all my client was was raised in what would best be described as as a gang neighborhood and that was something that one of the officers who also testified talked about the pressures of being in this neighborhood and being involved in gang activity and that in particular my client was one of the younger individuals who was being influenced by others in this neighborhood and in his school to be involved in again and that's a factor that goes to age and so shal background that i don't think that the district court gave enough credit because on top of those things while my client did become engaged in the juvenile system at the age of twelve and this particular behavior occurred at fifteen there were some steps of intervention that were taken by the juvenile system on behalf of my client that were not fully fleshed out and in that sense what i'm referring to is is that the deputy juvenile officer first of all believe that you know that th the transfer and the certification of him and that is my main issue is that based upon in particular portion six which is the availability of programs i lose i lose automatically so we're going through this process to determine whether or not he should be certified but on the basis of one of the criteria i lose by definition is that i cannot say is the point that you brought up before i cannot say that my twenty one year old client should be housed with other juveniles and that was actually an issue prior in this case as far as his detention where should he be health because there was a feeling he cannot be held inside a juvenile facility and that also if he was inside adult facility the statue shows that if he's being prosecuted as a juvenile he must be housed in a juvenile facility and it's forbidden to house him with adults that's one of the consequences of saying he's still to be prosecutors are doable he is then as a matter of law to be housed with juveniles and that looks pretty problematic well and the discussion about that  judge was that if that were to happen that he would have to be basically kept in isolation in a juvenile facility as as far as solitary confinement as a fact on on that very issue anyway you i don't want to consume the remainder of your time your both sides would dresses and there's up a little breeze but i just wanted to make it clear to you why i was concerned about and he did  everywhere and i can understand that i understand that you're out of this is this is extremely problematic and i guess the the big issue in this sense is that there isn't a ton of guidance on how to handle these matters because quite frankly these matters don't necessarily come up this often how long after the age of twenty one can the juvenile system hold somebody he can be held in this particular instance until twenty six ok so that's what we're really fighting about was he out of the outer limits of his punishment we are yes ok i mean it's under under the if you use prosecutors a juvenile he's he can be held until he's twenty six years old he has in sentences kept five years under the juvenile system and  state charges against him i can't recall if it's three or four or something like that yet of a similar nature as i understand it so he's facing substantial state time and those charges are proceeding in adult court yes they are i believe i'm out of time at the moment thank you very much mr humphries thin fox thank you your honor may it please the court mr humphrey i'm alex somers i'm representing the united states in this appeal and i will start by saying that i completely agree with this court that the statute in this case leaves a lot of questions unanswered and in charging this case i was there were significant challenges that we had to overcome and with regard to the specific question that the court asked at the very thing that your honor asked from the beginning there actually are there the second district or the second circuit has addressed the issue of whether the juvenile delinquency act and i can brief us as the court has requested but the does second circuit did address in the ramirez case that cited in our brief the question of whether the juvenile delinquency act applies to a defendant who turns twenty one during the criminal proceedings in fact in that case the facts were very similar to this case the defendant in that case was charged in two thousand with crimes that he was alleged that he committed in one nine hundred ninety five the crimes in that case included arm robbery i believe rape and a murder but th pretty he was charged in state court with some other crimes and then in two thousand he was charged federally with the offenses in that case that it was actually consolidated appeal but with regard to john doe number two both for the facts and the district court in the air the circuit court in that case did find that the juvenile delinquency act applies to a defendant to a juvenile a person who committed acts of juvenile delinquency under the age of eighteen but who has not yet reached the age of majority or the age of twenty one and that if the act would continue the juvenile would or person would continue to have the protections of the juvenile  if he fell within that definition at the time of charging even if he turned twenty one during the course of the perceiving and i will brief that further as the court has requested but there are several other cases cited and that  turning to the facts of this case i think that it is clear that on the record that the district court fully considered and weighed each of the six factors required for transfer under the juvenile delinquency act and he did and the district court did that after a full hearing and which extensive evidence was presented by the prosecution including testimony of the defendant's juvenile probation officer as well as of the detective that was dealing with the defendant at that time and there is nothing to indicate that the difference that the district court abused its discretion in finding that transfer to adult status in this case is in the interests of justice the the the defendant's the crux of the defendant's argument is that the that the analysis would have been different if the defendant had been charged when he at the time of the commissions of the offense which was he would have been fifteen he was actually four days from turning sixteen at the time of the second arm robbery so i'm going to use the time from the age of sixteen he would have been but the government's admits that that analysis would have been the exact same at the age of sixteen as it is that his current state that the the only difference is that the only factor additional factor that the court properly considered is that the defendant has since been convicted of three adult felony and the felony offenses but if you go through the analysis of those six factors at the time when the defendant was sixteen at the time of the commission of the offense government cements that it would be exactly the same and that the district court's order and the specific fi i hate to complicate the lives of the two of you but it's just occurred to me that one more question is relevant to this issue on which the supplemental briefs we file the definition of juvenile in eighteen u s c fifty thirty one says person who is not attained his eighteenth birthday at the time of a crime or his twenty first birthday at the time of the prosecution what happens if somebody commits a crime the day before his eighteenth birthday and the prosecuted as he would be prosecuted as an adult and he does not protect the prosecution b even if the crime is committed before eighteen if the prosecution begins after the twenty first birthday he's prosecuted as an adult so i guess part of my question is whether it should matter to whether he's now prosecutors or the door that the prosecution of this defendant began when he was twenty rather than the day of his twenty first birthday well that is interesting you're on every has actually a codefendant in this case if falls said i will just unless there are questions with regard to whether the district court abuse just discretion and weighing all of the factors that the government will stand on its brief i certainly think that the that the record demonstrates that the court gave very thoughtful analysis of all six of the factors that are required under the statute and that he didn't at the just record and not abuse it's just a question in determining the transfer is appropriate and for those reasons we've asked that that his that the district court order be affirmed and will submit that additional briefing as requested by the court i think the main thrust of the of mr humphries argument is that the delay in prosecution is is  problematic here because it eliminates a number of the arguments that the defendant could otherwise use in favor of juvenile adjudication just by virtue of the passage of time and that's all within the control of the prosecution that is true your honor and i there certainly was not any intentional delay a trigger for the purposes of gaining a strategic advantage says such that that would that would that i think would be problematic but my answer to that would be that the analysis would have been the exact same when he was sixteen years old at the time of the commission of the offense with regard to the availability and of rehabilitative services as well as the likelihood of rehabilitation let's look first at the likelihood of rehabilitation the court is to analyze the past treatment efforts that have been made as well as that it is the juveniles response to those treatment efforts the testimony of the juvenile probation officer in this case was that by the time the defendant was sixteen he'd been in the juvenile system for four years he had been on an informal supervision for two years and he was not successful in those attempts then she started as his formal suit as the supervisor for his formal juvenile petition and that she worked with him while he was on juvenile probation for a year and during that time she testified at length about all of the services that were offered to the defendant and her testimony was that the defendant was not cooperated of with those services he never voluntarily cooperated with the services only after the court ordered him to comply he would do the bare minimum to get by and her testimony was that by the time by may of two thousand and ten which was one month before these these offenses that are alleged were committed by that time she had exhausted all of the prior resources so much would have been different had this prosecution been initiated earlier that would be the government's position and also with regard to even the availability of shoes and house of rehabilitative services as the court points out the district court points out with regard to that factor six the nature of the defendant's crimes at that time at age fifteen per clued him from illinois juvenile court jurisdiction because the illinois juvenile court act requests provides that a person over a fifteen year old or who commits a crime of armed robbery with a firearm are specifically excluded from juvenile court jurisdiction so have the defendant been charged in state court at the time of the offenses he would have been required to have been charged as an adult and could not have had the benefits or the protections of the juvenile court act and then just the same as he does that have now so i don't think that it does put the defendant at any disadvantage in that regard it would have been the same analysis during th at the same time was charged with the juvenile position petition in missouri for offenses related tampering with motor vehicles he was then incarcerated in a juvenile facility for that offense from age sixteen and till his seventeenth birthday not for these offenses and then after his seventeenth birthday he had been picked up three for that he has convictions for three adult felony convictions and a fourth one and like to answer your question if you and he was he was in custody in and out of custody on the missouri state charges then when he was charged by and went by the u s attorney's office in two thousand and fifteen he was taken into custody on these federal charges and then on the is issue of where he was held as the court has pointed out there was not a clear answer on where he should be held illinois law does not allow us to hylands an adult in fact even though a juvenile i don't dispute the factual narrative that miss summers gave but i do think that there is a point about the nature of past treatments and the responses of those treatments that there needs to be a little further analysis that i don't think the district court gave enough weight to and that is the fact that the deputy juvenile officer in this case she while she said that my client always did the  bare bones minimum she also said that he always completed the programs that she recommended for him now she says he didn't take the extra steps but he did complete the program but also a large factor in what she considered his reluctance to fully engage in the programs was my client's mother and she stated that emphatically that she thought that my client's mother was a problem and that my client's mother was someone who was preventing him from necessarily being fully engaged and in fact it was on recommendation of hers that my client be placed outside of his mother's home these are things that did not happen and so when i'm looking back at all of this and i fully understand that at age fifteen we're going through this same thing we're going through this exact same thing we're going through this exact same analysis but at that point i at least have the option of saying hey maybe there are some programs that are available and at this point he hasn't at fifteen and there's a part that the district court allowed in over my objection his inclusion of of his adult prosecutions if someone steps in at this point at age fifteen perhaps we don't get from a to z in these situations but those things did not happen and those are things that i believe i should be in entitle to argue and that the district court should give some merit to in determining whether or not there should be a transfer to adult education thank you thank you very much mr humphrey and we appreciate your willingness to accept the appointment in this case and your assistance to the court as well as your client thank you and when we receive supplemental memos the case will be taken under advisement the court is