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 United States to transfer him for criminal prosecution as an adult pursuant to the

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 enrolled

member of the Red Lake Band of Chippewa Indians, with assault with a deadly weapon
-2-

for allegedly using a 12 gauge shotgun or assault rifle to shoot into the home of his

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 into

J.G.’s house, and his mother and aunt had had a physical fight with members of the

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.

The 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 federal

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

record, 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

psychologist who had evaluated J.G. J.G. offered evidence of his family’s ongoing

feud with the Whites and the incidents leading up to the shooting. The court

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 adult

prosecution under both the mandatory and discretionary transfer provisions of 18

U.S.C. § 5032. The court determined that J.G.’s tribal court conviction of third degree

assault satisfied 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 the person of another.” Id. The court also made

specific findings of fact under each of the factors listed in the statute for assessing

whether a discretionary transfer would be in the interest of justice and concluded that

they weighed in favor of granting the government’s motion. J.G. seeks appellate

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 properly granted a discretionary transfer 2

we do not reach the question of whether J.G.’s tribal court conviction satisfies the

predicate offense requirement for mandatory transfer under § 5032.

-3-

The FJDA provides that a juvenile may be transferred to a federal district court

for criminal prosecution as an adult when the court determines in its discretion that the

transfer would be in 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

assess whether the transfer would be in the interest of justice: (1) the juvenile’s age

and social background; (2) the nature of the alleged offense; (3) the extent and nature

of his prior delinquency record; (4) his present intellectual development and

psychological maturity; (5) the nature of past treatment efforts and his response to

them; and (6) the availability of programs designed to treat his behavioral problems.

See id. In weighing these factors the court must balance the likelihood of rehabilitation

before the juvenile reaches majority with the risk of harm to the public from treating

violent crime more leniently. See United States v. One Juvenile Male, 40 F.3d 841,

844 (6th Cir. 1994); United States v. Doe, 871 F.2d 1248, 1253 (5th Cir. 1989). The

grant of a discretionary transfer to adult status is reviewed for abuse of discretion and

all findings of fact by the district court are reviewed for clear error. See United States

v. Parker, 956 F.2d 169, 171 (8th Cir. 1992).

J.G. argues on appeal that the district court abused its discretion by not

explaining how each factor weighed with respect to the interest of justice in concluding

that discretionary 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

offense and to indicate how the availability of treatment programs weighed in its

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 § 5032 in order to determine whether a transfer would be in the interest of

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 also

discussed Dr. Kenning’s testimony that J.G. may have participated in the shooting

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 to

have abused J.G. and his mother while intoxicated. The court went on to find that the

seriousness of the alleged offense weighed heavily in favor of transfer because there

were people, including children, inside the house into which J.G. discharged his gun,

the alleged actions were “life threatening,” and the acts “demonstrated a complete

disregard for public safety.” The weight assigned 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 court was also influenced by evidence in J.G.’s juvenile record of other

substantial acts of violence, his failure to cooperate in any rehabilitative efforts, and his

response to such efforts with defiance and continued delinquency. It recognized that

Dr. Kenning had indentified available treatment programs, but it found that J.G. had

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

offense and J.G.’s juvenile record, weighed in favor of transfer, which the court had

already noted would have to be in the interest of justice. The court’s finding that these

two factors were particularly 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 discretion under the statute in determining that J.G.’s transfer to adult status

was in the interest 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.