The Honorable David S. Doty, United States District Judge for the District of 1 Minnesota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3228

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the District * of Minnesota. Juvenile JG, * *

Defendant - Appellant. *

___________ Submitted: February 12, 1998 Filed: March 11, 1998

___________ Before FAGG, JOHN R. GIBSON, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge. Juvenile JG appeals from an order of the district court granting a motion of the 1 the U nited States to transfer him for criminal prosecution as an adult pursuant to th e Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. §§ 5031-5042. We affirm.

On June 18, 1997 a juvenile information was filed charging J.G., an enrolle d member of the Red Lake Band of Chippewa Indians, with assault with a deadlyweapon-2-

for allegedly using a 12 gauge shotgun or assault rifle to shoot into the home of hi s neighbors on the Red Lake Indian Reservation. Although the house was occupied at the time, no one was injured. The incident occurred during a feud between J.G.’ s family and the neighbors, the Whites. A few days earlier guns had been fired int o J.G .’s house, and his mother and aunt had had a physical fight with members of th e White family on the same day as the incident charged in the information. J.G.’ s stepfather, Michael DeFoe, is alleged to have also participated with him in the assault.

Th e government moved to transfer J.G. for adult prosecution and certified that the offense charged was a crime of violence and that there was a substantial federa l interest in the case which warranted the exercise of federal jurisdiction. See 18 U.S.C. § 5032. The district court held an evidentiary hearing on the motion on July 18, 1997, at which the government submitted documents and testimony concerning J.G.’s juvenile
recor d, a certified copy of his tribal court conviction for third degree assault with a baseball bat, and the testimony and psychological report of Dr. Mary Kenning, a psychologi stwho had evaluated J.G. J.G. offered evidence of his family’s ongoin g feud wi th the Whites and the incidents leading up to the shooting. The cour t subsequently permitted the parties to submit briefs on the issues related to transfer.

On August 4, 1997 the district court ordered that J.G. be transferred for adul t prosec ution under both the mandatory and discretionary transfer provisions of 1 8 U.S.C. § 5032. The court determined that J.G.’s tri bal court conviction of third degree assault sati sfied the predicate offense requirement for mandatory transfer because the underlying act, if committed by an adult, would constitute a felony offense involving “the use . . . of physical force against t he person of another.” Id. The court also made specific f indings of fact under each of the factors listed in the statute for assessin g whether a di scretionary transfer would be in the interest of justice and concluded that they we ighed in favor of granting the government’s motion. J.G. seeks appellat e review of the order under the collateral order doctrine. See United States v. A.W.J. , 804 F.2d 492, 493 (8th Cir. 1986).Because we hold that the district court p roperly granted a discretionary transfer 2 we do not re ach the question of whether J.G.’s tribal court conviction satisfies th e predicate offense requirement for mandatory transfer under § 5032. -3- The FJDA provides tha

t a juvenile may be transferred to a federal district court for criminal prosecution as an adult whe n the court determines in its discretion that the transfer would be i n the interest of justice. See 18 U.S.C. § 5032. Before granting a 2 discretionary transfer the court must make findings under the following six factors to
as sess whether the transfer would be in the interest of justice: (1) the juvenile’s ag e and social ba ckground; (2) the nature of the alleged offense; (3) the extent and nature of h is prior delinquency record; (4) his present intellectual development an d psy chological maturity; (5) the nature of past treatment efforts and his response t o them; and (6) the availability of programs designed to treat his behavioral problems

. See id. In weighing these factors the court must balance th e likelihood of rehabilitation before the juvenile reaches majority with the risk of harm to the public from treatin g violen t crime more leniently. See United States v. One Juvenile Male , 40 F.3d 841 , 844 (6th Cir. 1994); United States v. Doe , 87 1 F.2d 1248, 1253 (5th Cir. 1989). The grant of a discret

ionary transfer to adult status is reviewed for abuse of discretion and all findings of fact by the distr ict court are reviewed for clear error. See United States v. Parker , 956 F.2d 169, 171 (8th Cir. 1992).

J.G. ar gues on appeal that the district court abused its discretion by no t explaining how each factor weighed with respect to the interest of justice in concluding that discretio nary transfer was appropriate. In particular, J.G. contends that the court failed to consider the context of the shooting incident in weighing the seriousness of the offe nse and to indicate how the availability of treatment programs weighed in it s decision.

The district court did not abuse its discretion in granting a discretionary transfer. At the outset of its analysis the court noted that it must consider each of the factors-4-

listed in § 503 2 in order to determine whether a transfer would be in the interest o f justice. The court then made findings of fact under each factor and found that all six weighed in favor of transfer. In evaluating the seriousness of the alleged offense the court specifically noted the ongoing feud between the two families. The court als o disc ussed Dr. Kenning’s testimony that J.G. may have participated in the shootin g because he did not want his stepfather to be viewed as the sole protector of the family since J .G. did not get along with him and he was reported to be an alcoholic and t o have abused J.G. and his m other while intoxicated. The court went on to find that the seriousness of the alleged offense weighed heavily in favor of transfer because ther e
w e re people, including children, inside the house into which J.G. discharged his gun, the alleged actions were “life threatening,” and the acts “demonstrated a complet e disregard for public safety.” The weight assigne d to any one factor listed in the statute is within the sound discretion of the district court. See One Juvenile Male , 40 F.3d at 845-46.

The c ourt was also influenced by evidence in J.G.’s juvenile record of othe r substantial acts of violence, his failure to cooperate in any rehabilitative efforts, and his
r e sponse to such efforts with defiance and continued delinquency. It recognized that Dr. Ken ning had indentified available treatment programs, but it found that J.G. ha d demonstrated a lack of willingness or desire for this kind of rehabilitative treatment in the past. The court concluded that the six factors, particularly the seriousness of the offe nse and J.G.’s juvenile record, weighed in favor of transfer, which the court ha d already noted would have to be in the interest o f justice. The court’s finding that these two factors were particu larly compelling was also within its discretion. See Doe , 871 F.2d at 1255.

None of the district court’s factual findings is clearly erroneous, and it did not abuse its disc retion under the statute in determining that J.G.’s transfer to adult status was in the in terest of justice within the meaning of § 5032. Accordingly, the order of the district court is affirmed.-5-

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.