Filed: July 15, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-4212

(CR-95-169)

United States of America,

Plaintiff - Appellee,

versus

Juvenile Male #1,

Defendant - Appellant.

ORDER

The Court amends its opinion filed June 11, 1996, as follows:

On page 2, second full paragraph, line 10 -- a section symbol

is added before "922(x)."

On page 2, third full paragraph, line 3 -- the phrase "an

Asheville parking lot" is corrected to read "a Charlotte parking

lot."

For the Court - By Direction

/s/ Bert M. Montague

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4212

JUVENILE MALE #1,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, Chief District Judge.

(CR-95-169)

Argued: May 6, 1996

Decided: June 11, 1996

Before WILKINSON, Chief Judge, and HALL and MICHAEL,

Circuit Judges.

_________________________________________________________________

Affirmed and remanded by published opinion. Judge Hall wrote the

majority opinion, in which Judge Michael joined. Chief Judge Wilkinson wrote an opinion concurring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Charles Linwood Morgan, Jr., Charlotte, North Carolina,

for Appellant. Kenneth Davis Bell, First Assistant United States

Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:

Mark T. Calloway, United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________
OPINION

HALL, Circuit Judge:

Juvenile #1,1 who was initially charged in federal court with committing acts of juvenile delinquency, appeals the order transferring his

case to adult status. We affirm and remand for further proceedings.

I

On September 18, 1995, Juvenile #1 was charged in a juvenile

information with the following acts of delinquency: unlawfully taking

by violence a motor vehicle shipped in interstate commerce (carjacking), in violation of 18 U.S.C. § 2119, and conspiring to violate the

carjacking statute, in violation of 18 U.S.C. § 371; carrying a firearm

in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1), and conspiracy to violate the same statute; causing the

death of a person through the use of a firearm, in violation of 18

U.S.C. §§ 924(i) and 2; possession of a handgun by a person under

the age of eighteen, a misdemeanor, in violation of 18 U.S.C. § 922(x);

and hindering the apprehension of an offender, in violation of 18

U.S.C. § 3. On the same date, the government certified to the court

that six of the seven counts involved crimes of violence and that

"there exists as to all counts a substantial federal interest warranting

the exercise of federal jurisdiction pursuant to 18 U.S.C. § 5032." The

government also moved for the transfer of Juvenile #1 to the appropriate district court for prosecution as an adult.

The following story emerged at the transfer hearing. On June 11,

1995, Juvenile #1 and a twenty-one year old, Darius Bennett, stole a

car from a Charlotte parking lot. At the time, Juvenile #1 had a .380

handgun and Bennett had a 12-gauge pistol grip shotgun. They then

met two other juveniles and another adult, and the five discussed robbing someone. The group drove in the stolen car to the Hilton hotel

and waited in the parking lot. As a car drove in and parked, Juvenile

#1 remarked, "There go two white women, let's jack [rob] them."

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1 18 U.S.C. § 5038(e) provides that "[u]nless a juvenile . . . is prosecuted as an adult neither the name nor picture of any juvenile shall be

made public in connection with a juvenile delinquency proceeding."

 2
Juvenile #1 and Bennett, each with his gun, approached the women's

car. Juvenile #1 went to the driver's side and told the driver, Alisa

Reasor, to give him the keys; she complied. As Bennett approached

the passenger side, Patricia Jones started to run, and Bennett shot her

in the back at close range and killed her. Reasor escaped and hid

while the two stolen cars pulled away. Juvenile #1 drove the women's

car.

The women's car was found abandoned seven miles out of town.

Phone calls had been made from the women's cellular phone; one call

was to Juvenile #1's hometown in Massachusetts. The group went to

a cookout at a friend's house that evening, and two empty bottles of

the souvenir wine that the women had bought that day were found in

a nearby dumpster. Juvenile #1 took a cab home that night. The cabby

gave a statement that Juvenile #1 said that he and his friend had stolen

a car and that his friend "got stupid and shot at a woman."

The district court ordered that Juvenile #1 be transferred to adult

status.2 In this appeal, he contends that his case should not be in federal court at all, and, even if it should, that he should not be prosecuted as an adult. We turn first to the issue of the court's subject

matter jurisdiction.

II

The violation of a federal criminal law by a person under the age

of eighteen is deemed an act of juvenile delinquency. 18 U.S.C.

§ 5031. There are, however, restrictions on the exercise of federal

jurisdiction over juveniles. A juvenile accused of delinquency shall

not be proceeded against in federal court

unless the Attorney General, after investigation, certifies to

the appropriate district court that . . . (1) the juvenile court

or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with

respect to such alleged act of juvenile delinquency, (2) the

_________________________________________________________________

2 The other two juveniles were similarly charged and transferred, but

only Juvenile #1 has taken an interlocutory appeal from the transfer

order.

 3
State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged

is a crime of violence that is a felony or [one of a number

of a specified drug or firearm offenses], and that there is a

substantial Federal interest in the case or the offense to warrant the exercise of federal jurisdiction.

18 U.S.C. § 5032. In the certification submitted in Juvenile #1's case,

the stated basis was the third prong, "a crime of violence . . . and a

substantial Federal interest." No further reasons were given, either in

the certification document or at the transfer hearing, for the

government's3 decision to proceed in federal court rather than permitting the state authorities to handle the matter.

Juvenile #1 moved to dismiss the case on the ground that the Attorney General had failed to show a "substantial Federal interest" that

would justify the exercise of federal jurisdiction. The government

countered that the statute only required that the certification state that

the case met one of the statutory criteria, which it did. The district

court ruled that the form of the certification was indeed proper, and,

further, that the basis of the government's decision-- the nature of

the "substantial Federal interest" -- was not a reviewable matter. On

appeal, the threshold questions are these: Is the government's decision

to proceed in federal court reviewable by the court, and, if so, to what

extent?

A

The Attorney General clearly has the authority to initiate federal

charges of juvenile delinquency. The issue is whether this prosecutorial discretion, once exercised, imbues the court with jurisdiction to

proceed without further inquiry into whether the case actually meets

the statutory criteria.4

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3 Under the authorization found in 28 C.F.R. § 0.57, the Attorney General has delegated her certification and transfer authority to the United

States Attorneys.

4 It is important to keep in mind that this issue is distinct from the other

issue before us, whether the appellant should be tried as an adult. See S.

 4
The reviewability of the Attorney General's certification decision

has generated a circuit split.5 One court of appeals has held that the

courts have the authority to review more than the mere form of the

government's certification. In United States v. Juvenile Male, 923

F.2d 614 (8th Cir. 1991), the appeals court considered whether the

offenses charged -- travel in interstate commerce with intent to murder and conspiracy to murder -- were "crimes of violence" within the

meaning of § 5032(3). After deciding that they were, the court moved

on to the form of the certification and found it lacking because it

failed to state that there was a substantial federal interest in the case.

Id. at 620. This technical requirement was deemed a "jurisdictional

prerequisite," albeit one that could be readily remedied by retyping

the certification document. Id. No mention was made of reviewing the

basis for finding a "substantial Federal interest," but the implication

is that merely reciting the statutory language would be sufficient. See

id. at 617-18 ("While this court may not have the power to guide a

federal prosecutor's discretion, we must insure that the exercise of

that discretion is within the confines of section 5032."). See also

United States v. Doe, 49 F.3d 859, 866-67 (2nd Cir. 1995) (reviewing

district court's finding that the offense charged was a "crime of violence" within § 5032's certification provisions).

_________________________________________________________________

Rep. No. 225, 98th Cong., 2d Sess. 389 n.10, reprinted in 1984

U.S.C.A.N. 3182, 3529 (hereinafter "S. Rep.") ("The criteria for prosecution of a juvenile as an adult are entirely separate from the criteria which

governs whether a juvenile must be surrendered to State authorities. Only

if the criteria for retaining federal jurisdiction over a juvenile in the first

instance . . . are met, may there then be consideration of whether Federal

prosecution, as opposed to a Federal juvenile delinquency proceeding, is

appropriate.").

5 In United States v. Romulus, 949 F.2d 713, 715 (4th Cir. 1991), cert.

denied, 503 U.S. 992 (1992), we noted in our rendition of the facts of

that case that "[t]he Attorney General made the necessary certification to

the district court as required by 18 U.S.C.A. § 5032, providing the district court with jurisdiction over Romulus." The opinion, however, does

not mention whether Romulus raised an issue regarding the jurisdictional

sufficiency of the certification, and, to the extent that our opinion can be

read to support the view that certification is not reviewable, it is dictum.

The government does not rely on Romulus to support its position on the

certification issue in the instant case.

 5
The Second and Eleventh Circuits, on the other hand, have held

that the district court may not look behind the certification decision

except where there are allegations of prosecutorial bad faith. See

United States v. C.G., 736 F.2d 1474 (11th Cir. 1984); United States

v. Vancier, 515 F.2d 1378 (2nd Cir.), cert. denied, 423 U.S. 857

(1975). In Vancier, the court pointed to the lack of any specific statutory provision for judicial review and the lack of standards under

which such review should be conducted. Id. at 1380. The certification

also was viewed as belonging to a category of unreviewable prosecutorial decisions, such as a determination that the public interest

requires that a witness be compelled to testify under immunity. Id. at

1381.6 Under this view, the certification requirement "qualifies the

Government's discretion, . . . but it does not grant the power to the

courts to make the final decision." Id. at 1380-81.

B

One district court in our circuit has concluded, based on the Eighth

Circuit's decision in Juvenile Male, that the "substantial Federal interest" element of the certification is reviewable. United States v. Male

Juvenile, 844 F. Supp. 280 (E.D. Va. 1994).7 Confronted with an

obvious crime of violence -- armed bank robbery -- the court

pointed to a Senate report on the 1984 amendments in which the committee noted that a "substantial Federal interest" should only be found

in cases that

give rise to special Federal concerns. Examples of such

cases could include an assault on, or assassination of, a Federal official, an aircraft hijacking, a kidnapping where state

_________________________________________________________________

6 Both C.G. and Vancier were decided before the 1984 amendments

that added subsection (3)'s "substantial Federal interest" prong. See Pub.

L. No. 98-473, § 1201(a), 98 Stat. 2149 (1984). The certification in each

of these cases was based on an alleged lack of state court jurisdiction

over the juvenile with respect to the offenses charged. C.G., 736 F.2d at

1477; Vancier, 515 F.2d at 1380.

7 Contra United States v. Juvenile Male, 915 F. Supp. 789, 793 (W.D.

Va. 1995) (hereinafter "Juvenile Male (W.D. Va.)") (holding that "the

court may only make a facial inquiry into the validity of the certification.").

 6
boundaries are crossed, a major espionage or sabotage

offense, participation in large-scale drug trafficking, or significant or willful destruction of property belonging to the

United States.

Id. at 283 (quoting S. Rep. at 389). The court concluded that the certification requirement was intended to limit federal jurisdiction over

juveniles to something less than all violent federal offenses; otherwise, "the `substantial Federal interest' language would be reduced to

mere surplusage." Id. at 284. The court then ruled that "the Government's interest in an ordinary bank robbery, absent some allegation

of a special Federal concern, per se does not rise to the level of a substantial Federal interest" (emphasis in original), and, therefore, compliance with § 5032 had not been shown. Id. at 285. The case was

dismissed for lack of jurisdiction.

That there is a clear congressional intent to limit the types of cases

that the executive should bring in federal court does not necessarily

implicate a concomitant judicial power to look behind such decision.

Nevertheless, although neither Juvenile Male nor Male Juvenile provides a completely satisfactory rationale, we are of the opinion that

the "substantial interest" and other prongs of the certification statute

act as limits on the federal courts' jurisdiction to act in this sphere.

C

It should be beyond serious argument that the courts should review

compliance with the essentially technical requirements of § 5032,

such as the proper certifying party (United States v. Cuomo, 525 F.2d

1285, 1287 (5th Cir. 1976)), timeliness of the certification (id. at

1289; United States v. Baker, 10 F.3d 1374, 1396 (9th Cir. 1993),

cert. denied, 115 S. Ct. 330 (1994)), inclusion of the statutory language (Juvenile Male), or the age of the juvenile. The issue of

reviewability is a closer one when certification is based on a judgment

call by the prosecutor such as, for instance, that the state lacks "adequate" services and programs, or on the assertion of legal "facts" and

conclusions such as the lack of state court jurisdiction (Vancier, C.G.)

or that the charge involves a "crime of violence" (Male Juvenile).

Whether there is a "substantial Federal interest," however, comes

closer to the sort of discretionary decision more commonly thought

 7
of as the type of prosecutorial decisions that are immune from judicial

review. See Vancier, 515 F.2d at 1381 (noting "several instances in

which it has been held that members of the executive branch are

authorized to make certain unreviewable determinations in connection

with law enforcement matters"). The Attorney General's decision in

this regard is perhaps entitled to more deference than a determination

that a given offense is a "crime of violence." Nevertheless, we believe

that the intent of Congress was that a court must first satisfy itself that

there is indeed a substantial interest before jurisdiction can be

assumed over the juvenile.

D

The lack of a specific provision addressing judicial review is in and

of itself no bar to review. In Gutierrez de Martinez v. Lamagno, 115

S. Ct. 2227 (1995), the Court analyzed a similar question of "who

decides" in the context of the scope-of-employment certification

under the Westfall Act. Because the text of the statute was ambiguous, the Court "adopt[ed] the reading that accords with traditional

understandings and basic principles: that executive determinations

generally are subject to judicial review and that mechanical judgments are not the kind federal courts are set up to render." Id. at 2236.

The Court found nothing in the language of the statute or in the legislative history to indicate that the scope-of-employment decision was

intended to be unreviewable. The Court also noted two considerations

that militated in favor of finding that the decision was reviewable.

First, there is often a financial incentive present in the scope-ofemployment decision, and second, the certification decision itself is

dispositive of the controversy. Id. at 2227.

The structure of § 5032 is similar to the provisions of the Westfall

Act analyzed in Lamagno: "Upon certification by the Attorney General that the defendant employee was acting within the scope of his

office or employment, . . . the United States shall be substituted as a

party defendant." 28 U.S.C. § 2679(d)(1). To be sure, the decision to

proceed against a juvenile in federal court does not entail the financial

considerations present in a Westfall Act case, nor is a § 5032 certification dispositive of the merits of the controversy. See Juvenile Male

(W.D. Va), 915 F. Supp. at 794-95. However, other perhaps weightier

considerations of a different sort militate against finding that "the

 8
strong presumption that Congress intends judicial review" has been

overcome in the juvenile justice arena. Lamagno, 115 S. Ct. at 2231

(quoting Bowen v. Michigan Academy of Family Physicians, 476 U.S.

667, 670 (1986)).

E

Prior to the 1984 amendments, § 5032 embodied a clear preference

for having juvenile criminal matters handled in the state courts. Then

as now, subsection (1) provided for federal jurisdiction if the state

was unable or unwilling to do anything, while subsection (2) allowed

the federal court to get involved if the state was unequipped to offer

"programs and services adequate for the needs" of the juvenile. Executive discretion was limited to three questions: Can the State handle

it? Will the State handle it? Is the State a better place to handle it

(from the juvenile's perspective)? Prior to the 1984 amendments,

then, the certification statute embodied an almost purely rehabilitative

model in which the federal court would only become involved when

necessary for the good of the juvenile. See United States v. Hill, 538

F.2d 1072, 1074 (4th Cir. 1976) (the purpose of the juvenile statute

"is to be helpful and rehabilitative rather than punitive").

The 1984 amendments, however, injected a new element into the

certification calculus: Is the crime of a sufficiently serious type that

federal resources should be called upon, without regard to the State's

willingness or ability to handle the matter? The addition of this third

prong, with its focus on the offense rather than the offender, vastly

expanded the possible bases for invoking federal jurisdiction.

In addition, in 1984 and again in 1988, Congress expanded the circumstances under which transfer to adult status is possible and, in

some cases, mandatory. See Pub. L. No. 98-473, § 1201(b)(1)-(3), 98

Stat. 2149 (1984); Pub. L. No. 100-690, § 6467(a), 102 Stat. 4375

(1988). Prior to the 1984 amendments, there were no provisions for

mandatory transfer, and juveniles who committed offenses when they

were younger than sixteen could not be tried as adults regardless of

the crime. The import of this expansion, both in federal jurisdiction

and federal adult jurisdiction, is obvious -- juvenile crime is becoming, particularly by virtue of the increase in the overall number of

 9
serious crimes committed by juveniles, a national problem that Congress believes is best addressed on a federal level.8

Against this legislative backdrop, we return to the original question: Who decides? We find nothing in the statutory language or legislative history that would overcome the presumption of judicial

review. See id. at 2231 ("[W]e have stated time and again that judicial

review of executive action `will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.'" (quoting Abbot Laboratories v. Garner, 387 U.S. 136, 140 (1967)). Except

for that limited group of crimes to which mandatory transfer to adult

status applies, the focus of the juvenile statutes is still on rehabilitation within the state systems.9 Therefore, we continue to adhere to our

long held view that rehabilitation is the primary focus of the juvenile

justice system, and that focus should be given important consideration

in construing the juvenile statutes. See In re Gault, 387 U.S. 1, 14-18

(1967) (tracing history of juvenile justice system).

In the final analysis, whether there is a "substantial Federal interest" in a given case implicates our authority over the juvenile to the

same extent and for many of the same reasons as whether the juvenile

is alleged to have violated a federal law, whether that violation is a

"crime of violence," or whether the appropriate state authorities have

refused to act. In short, we can and must first satisfy ourselves that

our jurisdiction has been properly invoked. We do so by reviewing

the stated reasons underlying the government's decision to proceed in

federal court. See United States v. Doe, 13 F.3d 302, 304 n.1 (9th Cir.

1993) ("The government must show a substantial federal interest only

when it certifies a serious federal crime.") (dicta).

_________________________________________________________________

8 See S. Rep. at 386 ("[C]ertain modifications in current law are necessary to allow an adequate Federal response to serious criminal conduct

on the part of juveniles").

9 See S. Rep. at 386 ("The essential concepts of the [Juvenile Justice

and Delinquency Act of 1974] are that juvenile delinquency matters

should generally handled by the States and that criminal prosecution of

juvenile offenders should be reserved for only those cases involving particularly serious conduct by older juveniles. The Committee continues to

endorse these concepts . . .").

 10
III

If the certification decision is reviewable, as we hold it is, must we

now remand this case in order to allow the district court to conduct

that review in the first instance? Despite the lack of a record explaining the Attorney General's decision to bring this action in the district

court, we are of the opinion that a substantial federal interest is clearly

present.

Juvenile #1 attempts to minimize the federal interests by characterizing the sole basis for federal jurisdiction as being the involvement

of a car that was manufactured outside the borders of North Carolina

(which is to say, the involvement of a car). There is, of course, also

the use of a firearm. More significantly, there is the carjacking itself,

a crime that until recently was, with exceptions, the sole province of

the states. Our review of the legislative history of the carjacking statute convinces us that the federal interest here is significant enough to

reach the "substantial interest" threshold of§ 5032.

In response to the growing use of violence to steal cars, Congress

federalized the crime of carjacking in 1992. Pub. L. No. 102-519,

§ 101(a), 106 Stat. 3384 (1992) (codified at 18 U.S.C. § 2119). The

level of Congressional concern is revealed in the harshness of the

punishments prescribed: Imprisonment of up to fifteen years for carjackings in which no one was injured, and the death penalty for those

carjackings that result in death of a victim. Floor debates and committee reports all attest to the Congress's concern with both the increasing number of carjackings as well as the increasingly violent nature

of the crimes.10 The role of juveniles was noted:

[A]nother aspect of the auto theft problem is the rash of

theft by juveniles. Children, some not even teenagers, are

stealing cars at an appalling rate. They start young--

sometimes they're barely tall enough to see over the steering

wheel. Unfortunately, it doesn't take long for them to

become experts, able to enter and steal a car in seconds.

These young auto thieves pose a substantial threat to public

safety.

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10 See, e.g., 138 Cong. Rec. S17,960 (1992) (remarks of Sen. Pressler).

 11
138 Cong. Rec. S17,961 (1992) (remarks of Sen. Lautenberg). The

penalties and the sense of urgency engendered by the national "epidemic of motor vehicle theft" and the "plague" of carjacking are

strong indicators of more than a run of the mill federal interest in the

problem.11

Juvenile #1 is charged with six federal felonies. That the circumstances of the carjacking and murder are particularly egregious militates strongly in favor of the exercise of federal jurisdiction. We hold

that there is a sufficient "substantially Federal interest" for the invocation of federal jurisdiction over this case. We turn, then, to the transfer itself.

IV

A

Section 5032 provides that a juvenile may be transferred to adult

status "if [the district] court finds, after hearing, such transfer would

be in the interests of justice." The statute also requires the court to

consider six factors. These factors, and the district court's findings

with regard to each, are as follows:

(1) Age and social background: The district court recognized that

Juvenile #1 was neglected and abused throughout much of his life.

However, the court noted that he was fifteen at the time of the offense

and therefore old enough to know the serious nature of his actions.

The court also noted that under state law (N.C.G.S. § 7A-608 (1994

Supp.)), a juvenile thirteen years or older who commits the same

crime is "automatically transferred" to adult status. "On balance,

Juvenile #1's age and background weigh in favor of transferring him

. . ."

(2) Nature of alleged offense: The court found that Juvenile #1

actively participated in the carjacking that led to the murder, that he

_________________________________________________________________

11 "Carjacking threatens to spread rapidly around the nation, as criminals engage in copycat crimes. To prevent such a plague, we need to

bring Federal resources to bear." 138 Cong. Rec. S17,961 (1992)

(remarks of Sen. Lautenberg).

 12
stole things from the car, and that he "even drank the stolen wine."

The court found that "the nature of the offense factor militates heavily

in favor of transfer . . ."

(3) Extent and nature of prior delinquency record: A Massachusetts

detective testified about Juvenile #1's earlier troubles with the law. In

August 1994, he was involved in a fracas over a basketball bet in

which he used a baseball bat as a weapon. In running from his opponent, he ran across several cars and caused over $250 in damages. He

was convicted as a juvenile and put on probation. He later was

charged with injuring school property and violating the state graffiti

law (the latter being a felony), for which there are outstanding warrants. The district court found that this factor"favors transfer";

(4) Present intellectual development and psychological maturity:

Juvenile #1 had miserable grades in the 9th grade, both in Massachusetts and, from April, 1995, through the completion of the school

year, in Charlotte. After his arrest, he was placed in the Gatling Center, a juvenile diagnostic center, where his grades improved dramatically to all As and Bs. He was determined to be of average

intelligence and able to understand the nature of his acts. Psychological reports noted that he is easily influenced by his peers and lets

emotion, especially anger, cloud his judgment. With regard to the carjacking incident, he didn't feel that he did anything wrong, that he did

what he was told, and that he felt threatened; "I'm weak-minded." Dr.

Custrini, a psychologist who evaluated Juvenile #1 under a referral

from the juvenile's counsel, concluded that Juvenile #1 "may be able

to gain some benefit from treatment at this time."

The court interpreted the psychological data as meaning that Juvenile #1 was able but not willing to take responsibility for his actions,

and this factor was also found to favor transfer to adult status.

(5) Nature of past treatment efforts and the response to such

efforts: Juvenile #1 had "received and benefitted from individual therapy" in Massachusetts from 1989 to May 1993, and he was in a youth

group in Charlotte for the month preceding the murders. One of the

teachers at Gatling reported that Juvenile #1 "continues to challenge

verbally his peers, encourage his peers to violence, and incite others

 13
not to do their classroom assignments." The court again found that,

"on balance, this factor weighs in favor of transfer . . .";

(6) Availability of programs designed to treat the behavioral problems: The government put on some evidence of limited federal and

state programs. A federal program in Tennessee could take Juvenile

#1 until he turned 21, but the court felt that this was insufficient time

to rehabilitate him.

Juvenile #1 does not object to any of the historical facts found by

the district court. His argument is that the court wrongly interpreted

these facts in finding that four of the six factors (#1, 3, 4 and 6)

favored transfer.

B

The government has the burden of proving that a transfer "would

be in the interests of justice." 18 U.S.C. § 5032. There is, however,

no consensus among the courts of appeals on the burden of proof at

the transfer hearing. It is settled that the district court is statutorily

mandated to make findings on each of the enumerated factors.

Romulus, 949 F.2d at 715. We have not yet articulated what specific

burden of proof rests on the government, having held only that "[t]he

question of whether the interest of justice is served by the transfer of

a juvenile for adult prosecution is a decision within the broad discretion of the district court." Id.

Some courts have held that because the transfer proceeding is an

adjudication of a status, rather than of a crime, it is civil in nature and,

therefore, the government must "prove its case for transfer" by a preponderance of the evidence. United States v. Parker, 956 F.2d 169,

171 (8th Cir. 1992); see also United States v. A.R., 38 F.3d 699, 703

(3rd Cir. 1994) ("Although the government bears the burden of rebutting the statutory presumption of juvenile treatment, the government

need only persuade the court by a preponderance of the evidence.")

(citing Parker). We have held, in rejecting an argument that the Sixth

Amendment requires trial by jury in delinquency adjudications, that

the delinquency proceeding itself was not "essentially criminal" but

was instead "an ascertainment of status as a juvenile delinquent." Hill,

538 F.2d at 1075.

 14
We hold that the government must prove by a preponderance of the

evidence that a transfer would be in the interests of justice. The district court, however, may determine what weight to give the various

factors. United States v. Doe, 871 F.2d 1248, 1254-55 (5th Cir.), cert.

denied, 493 U.S. 917 (1989). The "interest of justice" analysis

requires the court to "balance the [rehabilitative] purposes against the

need to protect the public from violent and dangerous individuals."

United States v. Juvenile Male No. 1, 47 F.3d 68, 71 (2nd Cir. 1995)

(citation omitted); see also United States v. T.F.F., 55 F.3d 1118,

1119 (6th Cir. 1995). Nothing in the record in this case indicates that

the district court did not proceed properly in arriving at its ultimate

conclusion that the government's transfer motion should be granted.12

C

We conclude that there was adequate evidence to support the

court's findings on each factor. While Juvenile #1's family background is distressing, that North Carolina would automatically transfer him to adult status were this case in state court strongly militates

in favor of a similar treatment. His juvenile record, while perhaps not

extensive, is still a record, and it is one that was first established when

he was more than two months shy of his fourteenth birthday.

Despite the record of some improvement during his recent detention at the federal diagnostic center, the court noted -- and Juvenile

#1 does not dispute -- that he continues to "encourage his peers to

violence." It is clear that the court did not err in concluding that Juvenile #1's "response to treatment," particularly in light of what was at

stake while he was detained prior to the hearing, did not support

repeated attempts at rehabilitation over the limited time available

under the juvenile statutes.13 See United States v. Nelson, 68 F.3d 583,

590 (2nd Cir. 1995) ("[A] glimmer of hope in future treatment, stand-

_________________________________________________________________

12 In the "Memorandum and Order" transferring Juvenile #1, the district

court expressly noted that the result would have been the same under

either a clear-and-convincing or a preponderance standard.

13 Under 18 U.S.C. § 5037(b), the maximum period of detention to

which Juvenile #1 would have been subject had he been tried as a juvenile would be through "the date when he becomes twenty-one years old,"

which in this case is March 30, 2001.

 15
ing alone, would be insufficient to warrant a finding that rehabilitation is likely.").

Finally, we are unable to find that the court erred in concluding that

the sixth factor -- the availability of programs--also favored transfer. Local programs were deemed likely to exclude Juvenile #1 on the

basis of the seriousness of the offense. The sole federal program about

which evidence was presented could only keep Juvenile #1 until his

twenty-first birthday, and we find no error in the court's finding that

five years would be an insufficient period for an effective rehabilitation.

In the weighing of the various factors, the nature of the crime

clearly predominates. The record of the transfer proceedings demonstrate that Juvenile #1 used his own gun in the carjacking. "[T]he seriousness of the crime obviously can be given more weight than other

factors in determining whether there is a realistic chance of rehabilitation . . ." Doe, 871 F.2d at 1248. We find no errors in the court's

conclusions,14 and we further find no abuse of discretion in the court's

ultimate decision that transfer would be in the interests of justice.

Accordingly, we affirm the order transferring Juvenile #1 to adult status, and we remand for further proceedings.

AFFIRMED AND REMANDED

_________________________________________________________________

14 We note that there is a certain overlap between the factors underlying

the certification decision by the executive and those informing the transfer decision by the court. In a case such as Juvenile #1's, much of the

basis for the executive's decision to certify on the basis of "a crime of

violence and a substantial federal interest" would also support a decision

to seek a transfer.

Conversely, in those cases where the decision to proceed in federal

court is based on the unavailability of adequate state programs and services to "meet the needs of the juvenile," § 5032(2), it would be incongruous in most cases for the executive to certify and then seek a transfer

to adult status on the basis of a "substantial federal interest," when such

transfer would have the effect of shifting the focus from the need to provide adequate treatment (the basis for being in federal court in the first

place) to punishment as an adult.

 16
WILKINSON, Chief Judge, concurring in the judgment:

While I agree with the result reached by the majority, I cannot subscribe to its reasoning. In my view, the government's certification

"that there is a substantial Federal interest in the case or the offense

to warrant the exercise of Federal jurisdiction," 18 U.S.C. § 5032, is

not subject to judicial review. The "substantial Federal interest"

inquiry is intended to channel prosecutorial discretion with respect to

juvenile defendants, and is the sort of executive determination that

should be immune from judicial oversight.

This conclusion follows directly from the language and structure of

section 5032. The statute provides that there shall be no federal proceedings against a juvenile "unless the Attorney General, after investigation, certifies . . . that there is a substantial Federal interest in the

case or the offense to warrant the exercise of Federal jurisdiction." Id.

Under a plain reading of this language, the only requirement is that

the Attorney General attest to a "substantial Federal interest" in federal adjudication; the statute contains no provision allowing for judicial reassessment of the Attorney General's determination.

According to the majority, though, the "lack of a specific provision

addressing judicial review is in and of itself no bar to review." While

this may be true as a general matter, the absence of language authorizing judicial review is far more telling when, as is the case here, the

same statute expressly provides for judicial review of another question. Section 5032 allows treating a juvenile as an adult upon "motion

to transfer of the Attorney General," but only"if [the] court finds,

after hearing, such transfer would be in the interest of justice." The

statute thus explicitly requires judicial review of the Attorney General's motion for transfer, yet contains no provision for judicial review

of the Attorney General's certification of a "substantial Federal interest." Presumably, the omission was deliberate, and verifies that Congress did not intend judicial review of certification. See Russello v.

United States, 464 U.S. 16, 23 (1983) ("`Where Congress includes

particular language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.'")

(quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.

1972)).

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In addition, section 5032 contains no standards by which to judge

a "substantial Federal interest." See United States v. Vancier, 515 F.2d

1378, 1380-81 (2d Cir.), cert. denied, 423 U.S. 857 (1975). The statute includes no definition of the term, and supplies no guidance as to

the central considerations. Again, this lack of criteria is in stark contrast to the provision requiring judicial review of a motion for transfer

to adult status: The statute enumerates six specific factors for courts

to weigh in determining whether transfer of a juvenile would be "in

the interest of justice,"1 and prescribes that those factors "shall be considered" and that "findings with regard to each factor shall be made."

18 U.S.C. § 5032. Congress would have supplied comparable standards with respect to a "substantial Federal interest" if it envisioned

judicial review of the Attorney General's certification.

Lacking such guidance, courts which venture to review the substantiality of the federal interest will adopt widely varying

approaches. Some courts might use a "federal nexus" test and require

that the charged offense involve federal property or a federal official.

Others might ask whether the conduct in question is proscribed by

federal law -- after all, anytime Congress enacts a criminal provision,

there conceivably is a significant federal interest in enforcing it. Here,

the majority has no difficulty finding a sufficient federal interest,

based apparently on the enactment of stiff federal penalties for carjacking and on the existence of six federal felony charges. Such an

inquiry, however, fails to provide meaningful standards for assessing

the degree of federal interest. How many federal crimes, for instance,

must a juvenile be charged with, and which federal offenses are sufficiently "substantial?"

The statute does not answer these questions. The only explanation

of what suffices as a "substantial Federal interest in the case or the

offense" is that it should "warrant the exercise of Federal jurisdiction." 18 U.S.C. § 5032. This language is suggestive of an intent to

_________________________________________________________________

1 The factors are: "the age and social background of the juvenile; the

nature of the alleged offense; the extent and nature of the juvenile's prior

delinquency record; the juvenile's present intellectual development and

psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts; the availability of programs designed to

treat the juvenile's behavioral problems." 18 U.S.C. § 5032.

 18
guide prosecutorial discretion, see Vancier, 515 F.2d at 1380-81, as

it alludes to the sort of case-specific policy determination that prosecutors must routinely make. United States v. W.P., Jr., 898 F. Supp.

845, 849-50 (M.D. Ala. 1995). For instance, given the breadth of the

mail fraud and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, prosecutors must regularly make decisions as to which cases are sufficiently

serious to warrant a federal charge. See Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479, 502 (1985) (Marshall, J., dissenting) ("The only

restraining influence on the `inexorable expansion of the mail and

wire fraud statutes' has been the prudent use of prosecutorial discretion.") (quoting United States v. Siegel, 717 F.2d 9, 24 (2d Cir. 1983)

(Winter, J., dissenting)).

"Indeed, the government's authority to certify that a given case

implicates a substantial federal interest is akin to the government's

authority to decide which cases to prosecute." United States v. Juvenile Male, 915 F. Supp. 789, 793 (W.D. Va. 1995). The two decisions, in fact, involve precisely the same standard-- the U.S.

Attorneys' Manual prescribes that government attorneys undertake a

"substantial federal interest" inquiry when deciding whether to initiate

a federal prosecution:

In determining whether prosecution should be declined

because no substantial federal interest would be served by

prosecution, the attorney for the government should weigh

all relevant considerations, including:

1. Federal law enforcement priorities;

2. The nature and seriousness of the offense;

3. The deterrent effect of prosecution;

4. The person's culpability in connection with the offense;

5. The person's history with respect to criminal activity.

6. The person's willingness to cooperate in the investigation or prosecution of others; and

 19
7. The probable sentence or other consequences if the person is convicted.

Department of Justice, U.S. Attorneys' Manual § 9-27.230(A)

(emphasis added). These sorts of prosecutorial judgments, the

Supreme Court has observed, are "particularly ill-suited to judicial

review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and

the case's relationship to the Government's overall enforcement plan

are not readily susceptible to the kind of analysis the courts are competent to undertake." Wayte v. United States, 470 U.S. 598, 607

(1985). They are more appropriately left within the sole discretion of

the executive, as Congress sought to do here.

The majority's approach is fraught with mischief. Its reasoning

would require, in every juvenile proceeding in federal court, that the

district court fully reevaluate the government's reasons for invoking

a federal forum. The prospect of inter-branch conflict is apparent.

Suppose that the Attorney General believes that a particular case

involves sufficiently serious violations of the federal criminal code to

warrant federal adjudication. A district court, under the majority's

interpretation of section 5032, could repudiate the Attorney General's

policy determination by subjectively deciding that the case does not

merit a federal proceeding. Yet the court's decision would necessarily

be based on the sorts of considerations that the Supreme Court held

in Wayte are executive (not judicial) in nature. Id.; see United States

v. Armstrong, 64 U.S.L.W. 4305, 4308 (U.S. May 13, 1996)

("Judicial deference to the decisions of . . . executive officers rests in

part on an assessment of the relative competence of prosecutors and

courts" and "also stems from a concern not to unnecessarily impair

the performance of a core executive constitutional function.").

Moreover, executive determinations under other, similar statutory

provisions have been deemed outside the scope of judicial review.

Vancier, 515 F.2d at 1381. Examples include a judgment by the U.S.

Attorney under 18 U.S.C. § 6003 that compelling a witness to testify

is in the public interest, see Ullman v. United States, 350 U.S. 422,

431-34 (1956); United States v. Hooks, 848 F.2d 785, 802 (7th Cir.

1988), certification by the U.S. Attorney under 18 U.S.C. § 3731 that

an appeal from an adverse suppression ruling is not taken for pur-

 20
poses of delay and involves evidence material to the proceedings, see

United States v. Kepner, 843 F.2d 755, 761 (3d Cir. 1988); In re

Grand Jury Investigation, 599 F.2d 1224, 1226 (3d Cir. 1979), and

certification by the Attorney General under 18 U.S.C. § 3503(a) that

the subject of a deposition to preserve testimony is believed to have

participated in organized crime, see United States v. Ricketson, 498

F.2d 367, 374 (7th Cir.), cert. denied, 419 U.S. 965 (1974); United

States v. Singleton, 460 F.2d 1148, 1154 (2d Cir. 1972), cert. denied,

410 U.S. 984 (1973).2

None of this calls into question our authority to review a certification for compliance with the formal requirements of section 5032. See

United States v. C.G., 736 F.2d 1474, 1477 (11th Cir. 1984). But the

statute forecloses us from reexamining whether there exists a "substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction." 18 U.S.C. § 5032. We have our job to

do under the statute, and the prosecutors have theirs. I would thus

hold, as did the district court, that the certification of a "substantial

Federal interest" is immune from judicial review.

_________________________________________________________________

2 The Supreme Court's decision in Gutierrez de Martinez v. Lamagno,

115 S. Ct. 2227 (1995), supporting judicial review of the Attorney General's certification under the Westfall Act that an employee was acting

within the scope of his employment, turned on concerns not at issue here.

Two considerations "weigh[ed] heavily" on the Court's decision -- that

the Attorney General argued in favor of judicial review of certification,

and that certification was "dispositive of a court controversy." Id. at

2231. Neither of these concerns exists here. See Juvenile Male, 915 F.

Supp. at 795; W.P., Jr., 898 F. Supp. at 850; see also United States v.

Tucker, 78 F.3d 1313, 1318-19 (8th Cir. 1996).

 21