The opinion of the court was delivered by: Robert L. Carter, District Judge.
The government has filed a juvenile information ("information") against
defendant John Doe # 3 ("John Doe") charging him with ten acts of
juvenile delinquency. Now before the court is the government's motion to
transfer defendant for adult criminal prosecution pursuant to the
Juvenile Delinquency Act ("JDA"), 18 U.S.C. § 5031 et seq.
The charges against John Doe stem from his alleged involvement in the
165th Street Organization ("165 Organization"), a criminal enterprise
based in the Bronx and operating in New York, New Jersey and
Pennsylvania. Its members are reputed to have engaged in interstate
narcotics trafficking and a host of violent acts. Three defendants
allegedly associated with the 165 Organization were initially charged
with various crimes in a criminal indictment filed on May 13, 1998, and
ten more defendants have since been added in superseding indictments.
On March 15, 2000, the government filed a juvenile information against
John Doe charging him with acts of juvenile delinquency occurring between
1994, and September 15, 1999, including armed robbery, kidnapping,
murder, racketeering and the possession and distribution of powder and
crack cocaine. He is specifically charged with participating in, among
other things, the March 15, 1995 armed robbery, kidnapping and murder of
named Francisco Soto ("Soto"), and a May 22, 1996 armed robbery.
On April 19, 2000, the government moved to prosecute defendant as an
adult pursuant to the discretionary transfer provisions of
18 U.S.C. § 5032. The United States Attorney for the Southern
District of New York has certified, pursuant to authority delegated to
her by the Attorney General of the United States, that John Doe is a
juvenile as defined by 18 U.S.C. § 5031, that the charged offenses
include violent felonies and that there is a substantial federal interest
in the case. See 18 U.S.C. § 5032.
In accordance with the requirements of the JDA, on August 10 and 14,
2000, the court held a hearing to determine whether transfer was
warranted. The sole witness to testify was Dr. Barry Rosenfeld, a
forensic psychologist who examined John Doe on behalf of the government.
A juvenile who is alleged to have committed a felony which is a crime
of violence after his fifteenth birthday may be transferred for adult
criminal prosecution pursuant to 18 U.S.C. § 5032 only if such
transfer is in the "interest of justice." See United States v. Nelson,
68 F.3d 583, 588 (2d Cir. 1995) ("Nelson I"). The district court is
required to consider the following six factors in weighing a motion to
transfer: (1) the juvenile's age and social background; (2) the nature of
the alleged offense; (3) the nature and extent of the juvenile's prior
delinquency record; (4) the juvenile's present psychological maturity and
intellectual development; (5) the juvenile's response to past treatment
efforts and the nature of those efforts; and (6) the availability of
programs designed to treat the juvenile's behavioral problems. See
18 U.S.C. § 5032. While the court must consider and make findings on
each of the six factors, it is not required to afford equal weight to
each factor and may balance them as it deems appropriate. See United
States v. Juvenile Male # 1, 47 F.3d 68, 71 (2d Cir. 1995).
Permeating the transfer decision is the notion of rehabilitation, which
"is one of the primary purposes of the juvenile delinquency provisions."
Nelson I, 68 F.3d at 590. See also United States v. Nelson, 90 F.3d 636,
640 (2d Cir. 1996) ("Nelson II") (noting that court's assessment of a
juvenile defendant's potential for rehabilitation is a crucial
determinant in transfer decision). Accordingly, juvenile adjudication is
presumed appropriate unless the government establishes by a preponderance
of the evidence that prosecution as an adult is warranted. See United
States v. John Doe, 49 F.3d 859, 868 (2d Cir. 1995). The desire to
encourage rehabilitation must be balanced, however, against the "need to
protect the public from violent and dangerous individuals." Juvenile Male
# 1, 47 F.3d at 71.
1. Age and Social Background
John Doe, born in the Bronx on May 1, 1979, was between the ages of
fifteen and eighteen at the time of the crimes charged in the
information. In particular, he was fifteen years old at the time Soto was
murdered and seventeen years old when he was arrested for armed robbery
in 1996. He is currently 21 years of age.
Defendant was raised in the Bronx as the youngest, along with a twin
brother, of several children. Although he also has six half-siblings and
several foster siblings, he primarily grew up with his twin brother and a
half-brother approximately twenty years his senior. Defendant's father,
who was HIV positive, died of a heroin overdose when defendant was eleven
years old. His mother died in 1997, from an AIDS-related illness while
defendant was eighteen years old and incarcerated. Defendant currently
has little contact with his remaining family members: he is unaware of
his twin brother's whereabouts and has
only maintained relationships with two of his older sisters.
Defendant's family was poor, neither of his parents worked and the
family relied on public assistance, and he described his childhood as
rough, primarily due to poverty, his parent's drug use and his father's
premature death. Nonetheless, he reported having good family relationships
and denied ever having been physically or sexually abused. Yet after his
father's death, which greatly upset him, defendant received less
supervision from home and soon became involved in criminal activity. By
the age of fourteen, he was allegedly involved with the 165 Organization
and had been arrested for armed robbery.
Around the age of thirteen, defendant began using alcohol and
marijuana, the latter of which he used daily throughout his teenage
years. He reported that he has abstained from using marijuana during his
current incarceration but that he had used drugs while imprisoned on
Riker's Island for an earlier ...