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UNITED STATES v. NELSON

March 21, 1996

UNITED STATES OF AMERICA, against LEMRICK NELSON, JR., Defendant.


The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 The government has moved to transfer the defendant, Lemrick Nelson, to adult status. I previously decided that the defendant should be tried as a juvenile. The government appealed, and the Second Circuit remanded the case for reconsideration of the motion. United States v. Lemrick Nelson, 68 F.3d 583 (2d Cir. 1995).

 Background

 (1)

 On August 10, 1994, the United States Attorney for the Eastern District of New York filed a Juvenile Information charging Nelson with an act of juvenile delinquency on August 19, 1991. Specifically, Nelson was charged with using force on and wilfully injuring or attempting to injure Yankel Rosenbaum, an Orthodox Jew, because of his religion and because he was enjoying facilities provided and administered by the City of New York, namely the public streets, resulting in Rosenbaum's bodily injury and death. The Information cites 18 U.S.C. § 245(b)(2)(B) which imposes criminal penalties for civil rights violations involving interference with federally protected activities and 18 U.S.C. §§ 5031-5042 providing for juvenile proceedings in district courts.

 Title 18 United States Code §§ 5031-5042 evinces a strong presumption that a person charged with committing certain enumerated offenses while under the age of eighteen shall be proceeded against as a juvenile. United States v. Juvenile Male # 1, 47 F.3d 68, 70 (2d Cir. 1995) ("Juvenile adjudication is presumed appropriate unless the government establishes that prosecution as an adult is warranted."); United States v. A.R., 38 F.3d 699, 706 (3d Cir. 1994) ("The statute clearly intends a presumption of juvenile treatment, and the government bears the burden of establishing that transfer is warranted."); United States v. Parker, 956 F.2d 169 (8th Cir. 1992), cert. denied, Potter v. U.S., 126 L. Ed. 2d 108, 114 S. Ct. 146 (1993); United States v. M.L., 811 F. Supp. 491 (C.D. Cal. 1992). Title 18 United States Code Section 5032 P1 specifically provides:

 
A juvenile alleged to have committed an act of juvenile delinquency . . . shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that (1) the juvenile court or other appropriate court of a state does not have jurisdiction or refuses to assume jurisdiction . . . (2) the 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 an offense described in §§ 841, 952(a), 955 or 959 of Title 21, and that there is a substantial federal interest in the case or the offense to warrant the exercise of federal jurisdiction. . . .

 In situations such as the one before this court, federal jurisdiction exists because the federal government has a substantial interest in the case. 18 U.S.C. § 5032 P1(3). Upon finding jurisdiction, a hearing must be held to determine if transferring the defendant to adult status is in the interest of justice. Only upon making such a finding may the government proceed against that person as an adult. 18 U.S.C. § 5032 P5.

 In order to make such a determination, the statute directs that a district court consider and make findings with respect to each of the following six factors: (1) the juvenile's age and social background, (2) the nature of the alleged offense, (3) the extent and nature of the juvenile's prior delinquency record, (4) the juvenile's intellectual development and psychological maturity, (5) the nature and success of past treatment efforts, and (6) the availability of programs to treat juveniles' behavioral problems. 18 U.S.C. § 5032 P6. I began its review of these factors at a hearing held on March 30, 1995. That hearing was adjourned to April 12, 1995 at which time I determined that Nelson should be tried as a juvenile. On an appeal by the government, on October 17, 1995, the Second Circuit remanded for reconsideration. The defendant's request for an en banc rehearing was denied. On February 8, 1996, this court conducted an additional hearing focusing on Nelson's intellectual development and psychological maturity, the availability of programs for a juvenile older than twenty years of age, as well as his potential for rehabilitation.

 (2)

 Nelson was born on July 31, 1975. He was 16 years and 3 weeks of age at the time of the incident, 19 years of age at the time the Information was filed, and presently is 20 1/2 years old. Prior to his arrest at the event subject to the Information, Nelson had no criminal record. However, since his arrest in 1991, Nelson has pled guilty, as an adult, in Georgia state court, Dekalb County, to aggravated assault and carrying a concealed weapon. Specifically, Nelson pled guilty to aggravated assault for cutting the victim's jacket and skin with a razor blade on January 14, 1994 and carrying a concealed weapon, a scalpel, on March 5, 1994. Gov't Ex. 5. In addition, on June 23, 1995, Nelson was charged with resisting arrest while allegedly smoking marijuana, Gov't Ex. 7, and, furthermore, was arrested approximately ninety minutes after leaving this court on February 8, 1996, for criminal trespass in which he allegedly would not leave the lobby of a building, which was not his residence, and was carrying a box cutter. Nelson has not been tried, nor has he pled guilty to either of these charges.

 Two psychologists interviewed and tested Nelson in November 1994, submitted reports in December 1994 and then testified at the hearing on February 8, 1996. The government's expert, Dr. Naftali Berrill, directs the New York Forensic Mental Health Group, which is a private practice that, according to Dr. Berrill, "sees a wide range of patients for both treatment and diagnostic work-ups. With respect to treatment, often we see people who are either offenders [or] probationers. We also see victims of violence or family members of victims of violence." Hearing Tr. at 4-5. From 1988 to 1991, Berrill was the director and chief psychiatrist at Bronx Family Court in which he managed the clinic and provided direct service to individuals in delinquency, felony, neglect, and abuse cases. Id. at 8. The United States Department of Probation and Pre-Trial Services often sends people to Dr. Berrill's practice. Hearing Tr. at 4-5.

 The defendant's expert, Dr. Ife Landsmark, is in private practice serving children, adolescents, couples and families. She also works as a consultant serving community-based agencies in Brooklyn and Manhattan that work with children in foster care. Hearing Tr. at 158-59. She counsels those children and families, trains social workers and other clinicians and performs psychological testing "to determine the needs of the child and how these needs may be best served." Id. at 159. Both her training and her practice focus on serving children through young adults. Id. at 160. Significantly, for at least six years, Landsmark worked as the clinical director of residential treatment centers which housed and treated conduct-disorder children who could not be rehabilitated in the community. Hearing Tr. at 163; Resume of Ife A. Landsmark.

 The results of the various tests administered by the doctors were generally consistent. Both Dr. Berrill and Dr. Landsmark found that Nelson has a low average to average I.Q. Berrill's Report at 12; Landsmark's Report at 5. Somewhat more elaborately, Dr. Landsmark explained that she administered a series of intelligence tests from which she deduced that while his cognitive abilities are average and his verbal intelligence and reasoning are below average, on a language-free exam, measuring abstract/figural problem solving, his score falls within the high average range. Landsmark's Report at 5.

 Dr. Landsmark further testified that Nelson was raised in an unstable family and social environment. His mother had suffered from severe emotional problems from the time of his birth. Landmark's Report at 2-4. Also, Nelson had difficulty in school. School records show that he was identified as "a youngster at risk by the end of the fourth grade." Landsmark's Report at 2. At the end of the seventh grade he was suspended for bringing a toy gun to class and subsequently was placed in special education. Id. Academic underachievement was evident throughout his schooling with complaints of classroom disruption and poor motivation. Interpersonal relationships with peers and adults were also "poor and impulsively driven." Id. Both Dr. Landsmark and Dr. Berrill agreed that his school behavior demonstrates Nelson suffers from a "conduct disorder;" they also agreed that he does not suffer from any significant psychopathology. Berrill's Report at 15; Hearing Tr. at 19-22; Landsmark's Testimony at 186, 211.

 Despite these agreements, the doctors' opinions varied significantly in their interpretation of many of the test results and their other studies. For example, Dr. Berrill found that Nelson is functioning as a young adult because he was able to achieve a modicum of independence - he lived in Georgia without his family, paid for an apartment on his own, worked, and had goals for the future. Berrill's Report at 16. On the other hand, Dr. Landsmark found that Nelson is functioning as an adolescent and not an adult. According to Dr. Landsmark, "his attempt to cope with unmet dependency needs has led to their denial and to the development of a sense of self-reliance that is inflated and tends towards grandiosity." Id. In other words, she explained that she views Nelson's ability to live on his own in Georgia as a survival skill as a result of his home environment rather than a sign of maturity. Hearing Tr. at 245. She noted that he did not want to go to Georgia, but rather was sent there by his family. Id. Dr. Landsmark determined that Nelson has a "child's perception of his world" in which he vastly oversimplifies matters. Hearing Tr. at 242.

 In Dr. Berrill's report, he concluded that Nelson has many "anti-social features," but not an anti-social disorder. Berrill's Report at 13. Dr. Landsmark's report similarly concluded that: "none of the psychometric instruments employed [by her] suggest strong anti-social tendencies." Landsmark's Report at 7. At the February 8, 1996 hearing, however, Dr. Berrill on cross-examination stated that "he might readily change [his opinion that Nelson did not have an anti-social disorder] at this point in time given the information I have available [concerning the Georgia conviction]." Hearing Tr. at 91. He also explained, on cross examination, that determining whether the anti-social features exhibited by Nelson constituted an anti-social disorder "was a close call for me. I have to say I went back and forth making the full diagnosis . . . at the time I did the workup, certain information was not available that is now with respect to the Georgia case, which changed my mind about the diagnosis." Hearing Tr. at 49. Dr. Landsmark disputed Dr. Berrill's conclusion at the hearing that Nelson exhibited anti-social personality disorder while acknowledging that Nelson displayed anti-social tendencies. "The difference is degree." Hearing Tr. at 186.

 At the hearing, Dr. Berrill reviewed the seven factors or features for establishing an anti-social personality disorder diagnosis according to the Diagnostic Statistical Manual, Fourth Edition (DSM-IV). In order to be diagnosed with anti-social personality disorder, one must exhibit at least three of these features. In addition, one must have a conduct disorder as a child which both Dr. Berrill and Dr. Landsmark found to exist. Hearing Tr. at 20; 223. In Dr. Landsmark's testimony, she reviewed the same criteria and explained how she reached the conclusion that Nelson did not have an anti-social personality disorder.

 One feature to be considered in determining whether one has the disorder is "failure to conform to social norms with respect to lawful behavior as indicated by repeatedly performing acts that are grounds for arrest." DSM-IV at 649. Dr. Berrill explained that "to my knowledge, Mr. Nelson has certainly been arrested a number of times and has failed to conform his behavior." *fn1" Hearing Tr. at 23. Dr. Landsmark agreed that this feature is present. Id. at 187.

 A second feature characteristic of an anti-social disorder is "deceitfulness as indicated by repeated lying, use of alias, conning others for personal profit or pleasure." DSM-IV at 650. Dr. Berrill believed Nelson exhibits this characteristic as well stating: "one can construe the kind of information that he provided to me during my interview with him [as] a certain degree of deceitfulness. [For example,] . . . during my interview with him, he simply states that he's clearly not guilty of the charges [in Georgia], he would never hurt anybody, he would never engage in this violent behavior." Hearing Tr. at 23. Dr. Landsmark took issue with Dr. Berrill's assessment of Nelson as deceitful. She explained that simply denying events in one's life does not amount to being deceitful. She stated that on most of the tests he was given by both of them, including the Minnesota Multiphasic Personality Inventory (MMPI2), the Jesness Inventory of Adolescent Personality, and the Carlson Psychological Survey, questions are asked to determine if the individual is deceitful. She concluded from the results of a multitude of tests that this feature is not present. Hearing Tr. at 188. She maintained that for the purposes of this feature deceitfulness meant "conning others for personal profit or pleasure," which she did not find. Hearing Tr. at 229.

 
In my field, children defend themselves. The most primitive way of defending yourself is to say "I didn't do it." . . . The first thing [that one employs] is denial . . . That's a mechanism of defense. I'm not going to get caught up in real life whether this is true or not true. Rather, what is the intent of a child with me? Is he telling me his vision of the world as he sees it or is it his intent to create something that he thinks I want to hear? . . . Again, one incident does not deceitfulness make. It's the total picture. Hearing Tr. at 227.

 A third feature is "impulsivity, failure to plan ahead." DSM-IV at 650. Dr. Berrill did not focus on this feature stating obscurely "one might question that." Hearing Tr. at 23. Dr. Landsmark did not find impulsivity in Nelson. "[Nelson] plans ahead. It is a matter of whether it is mature planning ahead." Id. at 191. She explained that Nelson said he wants to go to college and become an electrical engineer - according to Dr. Landsmark, that is planning ahead even if it may not be realistic. Id.

 A fourth feature is "irritability and aggressiveness, as indicated by repeated fights or assaults." DSM-IV at 650. Dr. Berrill determined that because a number of arrests have occurred in the last few years, one of which clearly entailed an assault, Nelson's behavior fits this category. Dr. Landsmark, however, maintained that, while Nelson can be aggressive, she did not find such conduct pervasive, which is a prerequisite to find the fourth feature present. Hearing Tr. at 233. She focused on the fact that although there were "conduct disorders" noted in Nelson's school records, prior to the event charged in the Information, Nelson had no criminal record. Id. at 192. She explained that prior to the 1991 incident, Nelson's "conduct disorders" were not so severe that he would have been placed in one of the residential treatment centers she had run where the population was of conduct disordered individuals of Nelson's age. His behavior had not merited such action. Id.

 The fifth feature "reckless disregard for the safety of self or others," DSM-IV at 650, Dr. Berrill found satisfied by the Georgia incident. Hearing Tr. at 25. Berrill's specific statement was less firm: "Someone can argue that's something that would need to be considered." Hearing Tr. at 25. Dr. Landsmark did not find this feature present, explaining on cross-examination that the degree to which it is necessary to be found for an anti-social disorder had not been demonstrated. Id. at 234. Again, she emphasized that one or even a limited number of instances of the feature was not sufficient to constitute a feature for diagnosing anti-social personality disorder. Id. at 235.

 Dr. Berrill did not discuss the sixth feature: "consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations." DSM-IV at 650. Dr. Landsmark noted that Nelson had a job in Georgia and that he is employed in New York presently. Thus, it would appear uncontradicted that Nelson does not exhibit the characteristics of this feature. Id. at 193-94.

 The seventh feature in diagnosing anti-social personality disorder is "lack of remorse, as indicated by being indifferent to or rationalize having hurt, mistreated, or stolen from another." DSM-IV at 650. Dr. Berrill explained that, in discussing the events in Georgia, "one had a sense . . . that [Nelson felt that he] was the victim of that situation, he was the victim of the federal government, the court system, whomever, but there was no indication, at any time, that he felt remorse or felt any kind of empathy for somebody who had been cut . . . with a razor blade." Hearing Tr. at 24. Dr. Landsmark refuted this, stating: "He certainly does rationalize. He'll explain himself or try to, when you push him. But lack of remorse, no that wasn't there." Id. at 194. She further explained:

 Thus, after reviewing all seven features comprising anti-social disorder, Dr. Berrill apparently found five of them present. However, it is significant that on direct examination, he never classified Nelson as having the disorder; only on cross-examination did he so diagnose Nelson. On a second occasion, he was even equivocal on this issue. Hearing Tr. at 49, 91. Dr. Landsmark, however, found only two features present, thus concluding that Nelson does not suffer from this disorder.

 The two doctors also administered a series of personality exams to Nelson. While the doctors did not give Nelson the identical tests, Dr. Landsmark stated at the hearing that the tests she chose were comparable to Dr. Berrill's exams. Hearing Tr. at 169-70.

 Dr. Berrill gave Nelson the Minnesota Multiphasic Personality Inventory (MMPI2) exam. The MMPI2 is a personality inventory consisting of approximately five-hundred and sixty true false questions. After answering the series of questions, the answers are "graded" by a computer which has a large database to compare answers of others. According to Dr. Berrill, "scientific research has shown that various questions . . . correlate together very nicely to form certain kinds of things that we describe as basic factors, and a factor is, for example, depression . . . so items X, Y, and Z, when put together in concert, represent the extent to which an individual might be ...


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