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U.S. v. DOE

August 23, 1999


The opinion of the court was delivered by: Robert L. Carter, District Judge.


The United States of America (the "government") has charged defendant John Doe # 1 ("John Doe"), a male who at the time of his arrest had not reached the age of eighteen, with eleven acts of juvenile delinquency, including murder, attempted murder, robbery, racketeering, assault, and distribution of and possession with intent to distribute crack cocaine and heroin in a superceding juvenile information. Now before the court is the government's motion to transfer John Doe to adult status pursuant to 18 U.S.C. § 5032.


The charges against John Doe stem from his alleged involvement in the 165th Street Organization (the "165 Organization"), a criminal organization that operates in New York, New Jersey, and Pennsylvania. John Doe and ten co-defendants are charged with a host of violent acts and acts relating to narcotics trafficking in an indictment filed May 13, 1998. Specifically, John Doe is charged with acts of juvenile delinquency occurring between 1994 and June 19, 1996, including the March 15, 1995 murder of an individual named Francisco Soto.

On September 18, 1998, the government moved for transfer John Doe to adult status, asserting that transfer was appropriate under the discretionary transfer provisions of 18 U.S.C. § 5032. At that time, the United States Attorney for the Southern District of New York certified, pursuant to authority delegated to her by the Attorney General of the United States, that the charged offenses include violent felonies and that there is a substantial federal interest in the case to warrant the exercise of federal jurisdiction. See 18 U.S.C. § 5032. After unsuccessful plea agreement negotiations, defendant filed his opposition papers on February 22, 1999, submitting inter alia a psychological evaluation.

By letter dated April 12, 1999, the government responded to the February 22 opposition papers. Additionally, the government moved for an adjournment of the transfer hearing, then scheduled for April 21, 1999, in order to permit the filing of a superceding juvenile information. By letter dated April 14, 1999, defendant objected to the government's reply as untimely, and as raising issues that should have been briefed in the initial motion for transfer. In a conference that same day, the court granted the government's motion for adjournment and gave defendant permission to file a sur-reply due May 3, 1999. The court also directed the government to obtain its own psychological evaluation of John Doe, which was ultimately submitted on May 17, 1999.

In a letter dated May 28, 1999, the government argued for the first time that the transfer of John Doe to adult status is required under the mandatory transfer provision of 18 U.S.C. § 5032. Defendant responded by letter dated June 3, 1999, contending that transfer is not mandatory under the statute, and that in any case, the government had waived a mandatory transfer motion by failing to move for such a transfer in its initial papers.

The hearing to determine whether transfer is appropriate under either the mandatory or discretionary provisions of 18 U.S.C. § 5032 was held on July 28, 1999. At the hearing, the court heard the testimony of Dr. Barry Rosenfeld ("Dr.Rosenfeld"), the psychologist who prepared the evaluation of John Doe for the government, and Dr. Sanford Drob ("Dr.Drob"), the psychologist who prepared the evaluation for the defense.*fn1 Each witness was cross-examined by the other party. There were no other witnesses. On August 5, 1999, the government submitted a letter briefly addressing the availability of juvenile treatment centers within the Bureau of Prisons system generally, and in a particular corrections center proposed by defendant. The letter stated that after the hearing, the government had spoken to a psychologist who concluded that there are no juvenile treatment programs appropriate for John Doe within the Bureau of Prisons system. By letter dated August 6, 1999, defendant rebutted the government's assertions, and objected to the government's letter as an attempt to introduce the testimony of a witness not subject to cross-examination.


At the outset, the court is compelled to comment on the government's dilatory conduct in its prosecution of the instant motion. The court is particularly dismayed by the government's repeated attempts to raise new issues and present evidence in an untimely manner. The government should not have taken months, for example, to file a superceding juvenile information nor to move for mandatory transfer. While the court's patience has certainly been tried by this behavior, the court will nonetheless proceed on the merits of the motion as defendant has not been prejudiced by the government's negligence and inexcusable delays.

A. Mandatory Transfer

Section 18 U.S.C. § 5032 provides in relevant part:

Therefore, transfer of a juvenile is mandatory if (1) the offense charged was committed after the defendant's sixteenth birthday; and (2) the offense charged would be a felony if committed by an adult; and (3) the offense charged either (a) involves the use, attempted use, or threatened use of violence or (b) by its very nature involves a substantial risk that violence may be used in committing the offense, or (c) is one of the offenses specifically enumerated in the statute; and (4) the juvenile was previously found guilty of a crime that would be a felony of the type described in (3) above if committed by an adult. See also United States v. Juvenile Male # 1, 47 F.3d 68, 69 (2d Cir. 1995).

According to the probation report submitted by the government, John Doe was convicted as an adult on July 24, 1997 of attempted robbery in the first degree for an incident occurring on May 22, 1996, whereby he along with two others held an individual at gunpoint. Based on this conviction, the government argues that transfer of John Doe to adult status is mandatory. According to the government, a violent felony conviction that occurs at any time prior to the transfer hearing is a predicate conviction under the mandatory transfer provision of § 5032. Defendant contends that he has not been "previously found guilty" because the robbery conviction occurred after the alleged conduct that is the subject of the current transfer hearing. The resolution of this dispute thus turns on an interpretation of the term "previously" in the mandatory transfer provision of 18 U.S.C. § 5032. This issue is evidently one of first impression in the Second Circuit, as well as in the other circuits.

Nevertheless, the court finds guidance in decisions considering similar language in the sentence enhancement provisions of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (the "ACCA"). See also United States v. David H., 29 F.3d 489, 494 (9th Cir. 1994) (stating that conclusion regarding § 5032 was required by the Ninth Circuit's interpretation of similar language in sentencing statute and guidelines). The ACCA provides that a defendant convicted of a weapons offense under 18 U.S.C. § 922(g) shall receive a minimum fifteen year sentence if the defendant "has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). As with § 5032, there is no guidance from Congress as to the meaning of the term "previous."*fn2

In United States v. Talley, 16 F.3d 972, 975-76 (8th Cir. 1994), the Eighth Circuit was confronted with the issue of whether a conviction that occurred after the date of the defendant's § 922(g) violation qualified him for sentence enhancement under § 924(e). Akin to its contentions in the instant case, the government in Talley argued that the convictions need only have occurred prior to defendant's sentencing for the § 922(g) violation. Similarly, the defendant in Talley contended that the district court could only consider convictions that occurred before the actual date of the § 922(g) violation.

The court began its analysis with the proposition that in determining the proper scope of a statute, a court must start with its plain language. See id. at 975 (citing Norfolk and Western Ry. Co. v. American Train Dispatchers Ass'n, 499 U.S. 117, 128, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991)). The court also noted that, if unambiguous, the language of a statute "is ordinarily to be regarded as conclusive in the absence of a clearly expressed legislative intent to the contrary." Id. (quotation marks omitted). See also Skubel v. Fuoroli, 113 F.3d 330, 335 (2d Cir. 1997). The court then found that the language of § 924(e) did not support the government's interpretation of "previous convictions" as those sustained at any time prior to sentencing: "If previous convictions meant those convictions a defendant had accumulated prior to sentencing, Congress could have omitted the word previous because, at sentencing, a district court could never consider convictions not yet in existence. Thus, adoption of the government's interpretation of previous convictions effectively would render the term previous superfluous." Id. at 975-76. Giving effect to every word and clause of the statute, see Moskal v. United States, 498 U.S. 103, 109-10, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990), the court held that the term "previous convictions" in § 924(e) referred to convictions that occur before defendant's violation of § 922(g).*fn3 See id. at 977. Moreover, while the government had pointed to general statements by legislators stating that the purpose of the statute was to incarcerate repeat offenders, the court noted that the legislative history of § 924(e) did not "shed light on the intent of the legislature as to the temporal component of the words previous convictions in reference to the § 922(g) violation." Id. at 976. See also United States v. Chartier, 933 F.2d 111, 113-15 (2d Cir. 1991) (recognizing that Congress' intent to enhance penalties for repeat offenders under career offender guidelines could support different interpretations regarding sequence of predicate convictions).

The court finds the reasoning in Talley to be instructive in defining the phrase "previously found guilty" under the mandatory transfer provision of ยง 5032. First, if as the government contends, the phrase "previously found guilty" refers to convictions sustained prior to the transfer hearing, Congress could have omitted the word because a court can never consider convictions not yet in existence at the time of the hearing, as the Eighth Circuit held in Talley. Thus, the reasonable interpretation of the phrase, and one that gives effect to every word and clause in the provision, is that the predicate conviction must occur prior to the conduct forming the basis of the offenses at issue. Second, the government's reference to the legislative history of the mandatory transfer provision is unavailing. While the legislators who enacted the provision did express the desire to prosecute repeat juvenile offenders as adults, there is no clearly expressed legislative history on the issue of the temporal relationship between the previous conviction and the conduct that forms the basis of the indictment. ...

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