FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-30587

Plaintiff-Appellee, D.C. No.

v.  CR-05-00025-2-

SEH JUVENILE MALE,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

June 8, 2007—Seattle, Washington

Filed July 5, 2007

Before: Betty B. Fletcher and Harry Pregerson,

Circuit Judges, and James V. Selna,* District Judge.

Per Curiam Opinion

*The Honorable James V. Selna, United States District Judge for the

Central District of California, sitting by designation. 

7997
COUNSEL

David F. Ness, Assistant Federal Defender, Federal Defenders

of Montana, Great Falls, Montana, for the appellant. 

Carl E. Rostad, Assistant U.S. Attorney, Great Falls, Montana, for the appellee.

OPINION

PER CURIAM: 

In February 2005, the defendant-appellant (“defendant”)

was charged with “engaging in an act of juvenile delinquency

by committing second degree murder.” He was fifteen years

and eleven months old at the time of the incident, and was

eighteen years and seven months old when proceedings commenced. 

In May 2005, the government moved to have the proceedings transferred to adult criminal prosecution pursuant to the

UNITED STATES v. JUVENILE MALE 7999
Federal Juvenile Delinquency Act (“FJDA”), 18 U.S.C.

§ 5032. The government also filed a motion for observation

and study, requesting that the defendant be committed to the

custody of the Attorney General for a psychological examination, pursuant to 18 U.S.C. § 5037(e), to assist the court in

determining whether he should be transferred to adult status.

The district court granted the latter motion and ordered the

defendant to undergo an evaluation in accordance with the

factors listed in 18 U.S.C. § 5032. The defendant was transferred to the Dakota Horizons Youth Center, a division of the

Southwest Multi-County Correction Center, on June 10, 2005.

Upon completion of the evaluation, a report (“Dakota Horizons Report”) was filed with the district court detailing the

experts’ observations and conclusions. 

In December 2005, following receipt of the Dakota Horizons Report, the district court held a hearing on the motion to

transfer. The government presented the testimony of an FBI

agent who had investigated the case. On December 15, 2005,

the district court granted the government’s motion to transfer

the case. 

The defense filed a notice of interlocutory appeal. In

August 2006, this court remanded because the district court

had improperly concluded that it was required to assume, for

purposes of a transfer determination, that the juvenile committed the offense charged in the information. United States

v. Juvenile Male, No. 06-30038 (citing United States v. Juvenile, 451 F.3d 571 (9th Cir. 2006) (holding that assumption of

the defendant’s guilt is within the court’s discretion, but is not

mandatory)). 

On remand, the district court exercised its discretion to

assume that the defendant committed the offense. The court

then “readopted and restated” its original findings of fact, as

well as its original conclusions of law, save the statement that

the assumption of the defendant’s guilt was mandatory. 

8000 UNITED STATES v. JUVENILE MALE
The defendant now appeals from that amended decision.

We have jurisdiction to hear this interlocutory appeal, see

United States v. Gerald N., 900 F.2d 189, 191 (9th Cir. 1990),

and we review the district court’s decision for abuse of discretion. See United States v. Brandon P., 387 F.3d 969, 976 (9th

Cir. 2004). As we have previously held, the district court

abuses its discretion when it fails to make the findings

required by § 5032 or when the findings it does make are

clearly erroneous. United States v. Doe, 94 F.3d 532, 536 (9th

Cir. 1996). 

I.

[1] Under the FJDA, 18 U.S.C. § 5031 et seq., a juvenile

who is fifteen years old or older and who is alleged to have

committed an act which, if committed by an adult would be

a felony that is a crime of violence, may be proceeded against

as an adult if the district court determines that it would be “in

the interest of justice” to do so. 18 U.S.C. § 5032; see Brandon P., 387 F.3d at 976. “The government has the burden of

establishing that prosecution as an adult is warranted.” Doe,

94 F.3d at 536; see Brandon P., 387 F.3d at 977. 

[2] In this case, there is no question that the first two prerequisites for transfer under 18 U.S.C. § 5032 are met: (1)

defendant was over fifteen years old at the time of the seconddegree murder for which he was charged, and (2) the crime,

if committed by an adult, would be a felony that is a crime of

violence. Only the third requirement of § 5032—that transfer

be “in the interest of justice”—is in dispute. 

[3] Congress has established six factors that a district court

must consider to determine whether transfer would serve the

interest of justice: 

(1) the age and social background of the juvenile;

(2) the nature of the alleged offense; 

UNITED STATES v. JUVENILE MALE 8001
(3) the extent and nature of the juvenile’s prior

delinquency record; 

(4) the juvenile’s present intellectual development

and psychological maturity; 

(5) the nature of past treatment efforts and the

juvenile’s response to such efforts; 

(6) the availability of programs designed to treat

the juvenile’s behavioral problems. 

18 U.S.C. § 5032. 

II.

[4] As required by § 5032, the district court considered

each of the six factors and made findings on the record. Cf.

Brandon P., 387 F.3d at 977. We find that the court made a

clearly erroneous finding with regard to the defendant’s social

background: the district court’s determination that the defendant experienced “no domestic violence . . . while living with

his grandparents” is contrary to the evidence of record.1

[5] In addition, in describing the defendant’s social background, the district court compared the defendant to other

Native American youths.2 This comparison was not based on

information in the record and did not assist in the individual1We also note that the court made no mention of his mother’s problems

with alcohol and drugs, nor any of the episodes of violence the defendant

experienced or witnessed as a child—which included the shooting of his

grandfather in the throat, the shooting of his uncle with a gunshot, and the

shooting death of his cousin. 

2The district court concluded that the defendant’s “social background in

many ways [wa]s not markedly different from that of hundreds of other

youngsters who grow up on Montana’s Native American reservations, and

who never resort to violent and destructive behavior of the sort disclosed

by the record in this case.” 

8002 UNITED STATES v. JUVENILE MALE
ized assessment of the juvenile’s unique circumstances

required by the FJDA. Cf. United States v. Juvenile, 347 F.3d

778, 787 (9th Cir. 2003) (stating that the FJDA “requires an

assessment of the totality of the unique circumstances and

rehabilitative needs of each juvenile”).3

[6] Finally, the district court was required under § 5032 to

make specific findings about “the availability of programs

designed to treat the juvenile’s behavioral problems.” The district court found that the Bureau of Prisons has a juvenile

facility in Montana that offers an educational program and

skills training, as well as substance abuse and anger management treatment. The court also stated that “[s]imilar educational and treatment programs are available at adult facilities.”

This finding was not based on facts in the record; rather the

court took “judicial notice” of the availability of such programs. We need not determine whether it was appropriate for

the court to make such a finding on the basis of “judicial notice,”

4

as the defendant has not properly raised this argument on

appeal. 

We find no merit in defendant’s arguments challenging

other aspects of the district court’s analysis. 

3Because of the structure of the FJDA, Native American youth are disproportionately subject to federal court jurisdiction for their delinquency

offenses. This court has therefore noted that a defendant’s status as Native

American may merit special consideration. Juvenile, 347 F.3d at 789 n.10

(9th Cir. 2003) (holding that consideration should have been given to the

ways in which a particular placement would distance a Native American

youth from his family and tribe, and noting more generally that district

courts “should give due consideration to the unique concerns and needs”

of Native American youth). However, this court has never suggested that

group-based comparisons of the sort engaged in by the district court below

are appropriate when evaluating a juvenile’s social background. We do not

believe such a comparison is relevant to the § 5032 inquiry. 

4While before the district court defendant’s counsel agreed with the

government as to the availability of appropriate youth facilities, but

objected to the the claim that adequate rehabilitation programs were available at adult facilities. 

UNITED STATES v. JUVENILE MALE 8003
III.

[7] Because we find that the district court made findings

that were clearly erroneous, we vacate the district court’s ruling and remand for further proceedings. 

VACATED AND REMANDED. 

8004 UNITED STATES v. JUVENILE MALE