UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4423

T.E.S., A Male Juvenile,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-98-7-WMN)

Argued: September 24, 1998

Decided: November 6, 1998

Before LUTTIG and MOTZ, Circuit Judges, and
BULLOCK, Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Motz concurred
only in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Michael Daniel Montemarano, MICHAEL D. MONTE-
MARANO, P.A., Baltimore, Maryland, for Appellant. Robert Reeves
Harding, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney,
Jamie M. Bennett, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In the fall of 1996, a federal grand jury in the district of Maryland
began investigating Anthony Jones and his associates for narcotics
and murder offenses. In January 1997, after the grand jury returned
the first of four indictments against Jones charging him with both
murder and drug offenses, his foster brother John Jones testified
before the grand jury about certain vehicles used by Anthony Jones
in his drug business.

When Anthony Jones learned that John Jones had testified against
him, he decided to have him killed. On February 24, 1997, during a
telephone call recorded by the correctional institution in which he was
incarcerated, Anthony Jones directed his lieutenant to have John
Jones "whacked." And, on the night of February 26-27, 1997, John
Jones was fatally shot four times in the specific manner ordered by
Anthony Jones. Based on information provided by informants, law
enforcement officers ultimately concluded that John Jones was killed
by two juveniles, Hilton Thomas and appellant T.E.S.

On November 19, 1997, appellee, the United States, petitioned the
Circuit Court of Baltimore City for release of court records concern-
ing T.E.S. and Thomas, averring that the juveniles were to be feder-
ally charged by information with certain offenses, including murder.
The United States' petition was granted on that day, and appellant's
records were transferred to the Clerk of the United States District
Court for the District of Maryland, where they remained under seal.
On January 8, 1998, a juvenile information was in fact filed charging
T.E.S. with murder in aid of racketeering, in violation of 18 U.S.C.
1959; conspiracy to distribute narcotics, in violation of 21 U.S.C.
§ 846; and conspiracy to retaliate against witnesses, in violation of 18
U.S.C. §§ 371 and 1513. Two weeks later, counsel was appointed to
represent T.E.S. in federal court, and in early April 1998, the magis-

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trate held a hearing on the government's motion to transfer T.E.S. to
the district court's adult criminal jurisdiction pursuant to 18 U.S.C.
§ 5032. The magistrate promptly issued a report and recommenda-
tions, which included a recommendation of transfer. The district court
thereafter adopted the magistrate's recommendations, and appellant
subsequently filed this expedited interlocutory appeal challenging
both the district court's transfer order and the constitutionality of the
state court's release of his juvenile record.

I.

Appellant first contends that his federal constitutional rights, spe-
cifically his privacy rights, were violated when the Maryland state
court delivered his juvenile court records under seal to the federal dis-
trict court, which court was considering, pursuant to a federal statute,
whether to try T.E.S. as an adult on charges including the murder of
a witness in a federal grand jury proceeding. We disagree with T.E.S.
that the state court's transfer of his records violated his constitutional
rights.

Maryland Annotated Code Section 3-828 provides, in relevant part,
that "[a] court record pertaining to a child is confidential and its con-
tents may not be divulged, by subpoena or otherwise, except by order
of the court upon good cause shown." Md. Ann. Code, Cts. & Jud.
Proc. § 3-828. Appellant contends that this statute creates a confiden-
tiality interest, protected by the federal Constitution, in the contents
of his juvenile record. Even if appellant is correct that a state may
create a constitutionally protected "reasonable expectation of privacy"
in the nondisclosure of a juvenile's criminal record-- itself a doubt-
ful proposition, see Paul v. Davis, 424 U.S. 693 (1976) (declining to
find a constitutional right to the nondisclosure of an individual's
arrest record); J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981) (dissem-
ination of juvenile social histories prepared by state probation officer
did not violate any federal constitutional privacy right of juveniles) --
we conclude that Maryland has not done so here. A state law provid-
ing for the release of juvenile records upon "good cause shown" sim-
ply cannot be said to create a reasonable expectation that the state
court will withhold those records from a federal district court required
by statute to obtain and review such records as a condition precedent
to the decision whether to transfer a juvenile to adult criminal juris-

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diction. 18 U.S.C. § 5032. Particularly given that the state statute
explicitly contemplates release of the juvenile records in the context
of further judicial proceedings, see § 3-828(b)(5), (d), (e), and (g), any
expectation appellant might have maintained that the material would
not be made available to a federal court considering his transfer to
adult criminal jurisdiction for the alleged murder of a witness in a fed-
eral grand jury proceeding simply could not be characterized as "rea-
sonable." The two district court cases appellant advances in support
of his novel claim are easily distinguished. See Sean R. v. Board of
Educ., 794 F. Supp. 467 (D. Conn. 1992) (holding that a private right
of action under § 1983 could lie for the unauthorized, public dissemi-
nation of confidential information by a county school board about a
student's learning disabilities); Soucie v. County of Monroe, 736 F.
Supp. 33, 35-37 (W.D.N.Y. 1990) (dismissing a § 1983 claim but rec-
ognizing in dicta a constitutional right of privacy where an employee
of the county probation department "deceptively" obtained and "mali-
ciously" disclosed the contents of a juvenile's pre-sentence report in
direct contravention of state law).

Doubtless aware that neither caselaw nor the statute itself supports
his "privacy" claim, appellant argues alternatively that the state has
also created a "liberty" interest that cannot be abrogated without the
full panoply of procedural protections that the Due Process Clause
demands. In this regard, appellant relies upon a line of Supreme Court
cases recognizing that a state statute or regulation may, under certain
circumstances, create a liberty interest protected by the Due Process
Clause. In the principal case upon which appellant relies, Hewitt v.
Helm, 459 U.S. 460 (1983), the Supreme Court held that "the
repeated use of explicitly mandatory language in connection with
requiring specific substantive predicates demands a conclusion that
the State has created a protected liberty interest." Id. at 472 (emphases
added). As a preliminary matter, appellant is apparently unaware that
the Supreme Court several years ago explicitly repudiated this very
approach to the "liberty interest" analysis. See Sandin v. Conner, 515
U.S. 472, 483-84 & n.5 (1995) ("abandoning" Hewitt's focus on the
"search for negative implication from mandatory language" and
returning to earlier focus on the "nature of the deprivation"). In any
event, appellant's claim of a state-created protected liberty interest
cannot satisfy even the more expansive, and now disavowed, standard
he advances. The Maryland statute in question lacks both the "explicit

                     4
mandatory language" and "specific substantive predicates" required
by Hewitt. A requirement of a showing of"good cause" before a court
order may issue cannot be read to "explicitly" require particular pro-
cedural protections or provide any specific substantive predicates
upon which a decision to release records must be based. Cf. Hewitt,
459 U.S. at 472 (Court considered prison regulations governing the
imposition of administrative segregation that included an explicit
requirement of notice, investigation, and a hearing, and established
substantive predicates that segregation be based on"the need for con-
trol" or "the threat of a serious disturbance"); Olim v. Wakinekona,
461 U.S. 238 (1983) (Court looked to see whether"particularized
standards or criteria guide the State's decisionmakers" before declin-
ing to find that Hawaii had created a protected liberty interest in a
prisoner's right not to be transferred).

Finally, even if appellant were able to establish the existence of
either of his asserted constitutionally protected rights, it is undisputed
that he received notice, a hearing, and the able assistance of counsel
-- all of the protections to which he now claims he was constitution-
ally entitled -- in federal court before his records were ever unsealed.
We decline to hold that appellant's federal constitutional rights have
been violated by his receipt in federal rather than state court of
exactly the process he claims he was due.

Accordingly, because Maryland has created neither a"reasonable
expectation of privacy" nor a "liberty" interest that would implicate
constitutional due process protections and because, in any event,
appellant received notice, hearing, and assistance of counsel in federal
court, we affirm the district court's denial of appellant's motion to
return his juvenile records to the state court.

II.

Turning now to appellant's second contention, that the District
Court lacked jurisdiction over his prosecution under 18 U.S.C. § 5032
and erred in transferring him to its adult criminal jurisdiction under
that section, we affirm the district court's transfer order.

As a threshold matter, we summarily dispose of appellant's claim
that the federal court lacked jurisdiction under 18 U.S.C. § 5032 to

                     5
proceed against him in federal court. Section 5032 provides for fed-
eral jurisdiction over a juvenile upon the Attorney General's certifica-
tion that the "offense charged is a crime of violence that is a felony
. . ., and that there is a substantial Federal interest in the case or the
offense." 18 U.S.C. § 5032. Appellant is accused of murder of a fed-
eral witness in aid of racketeering. It is difficult to imagine a case that
implicates a more substantial interest than the prevention of retalia-
tion against and intimidation of federal witnesses. We will certainly
require no more in affirming the district court's exercise of jurisdic-
tion in this matter.

The remainder of appellant's § 5032 claims challenge the district
court's finding that his transfer to adult criminal jurisdiction was "in
the interest of justice." We review the district court's transfer decision
for abuse of discretion. United States v. Juvenile Male #1, 86 F.3d
1314, 1324 (4th Cir. 1996). After reviewing the magistrate's careful
findings in light of our recent decision in Juvenile Male #1, we find
each of appellant's claims to be without merit, and we affirm without
hesitation the district court's transfer of appellant to the court's adult
criminal jurisdiction for trial. Because each of appellant's other spe-
cific claims is squarely foreclosed by our decision in Juvenile Male
#1, we address only one of appellant's particular assertions in any
detail.

Section 5032 requires the court to consider and make findings as
to six enumerated factors in determining whether transfer to adult
criminal jurisdiction is in the interests of justice.* Appellant contends
that in considering the second statutory factor, the"nature of the
alleged offense," the district court improperly considered evidence
_________________________________________________________________
*18 U.S.C. § 5032 provides, in relevant part:

           Evidence of the following factors shall be considered, and
          findings with regard to each factor shall be made in the record,
          in assessing whether a transfer would be in the interest of justice:
          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 develop-
          ment and psychological maturity; the nature of past treatment
          efforts and the juvenile's response to such efforts; the availabil-
          ity of programs designed to treat the juvenile's behavioral prob-
          lems.

                     6
"extrinsic" to the charged offense and undertook an "unwarranted
examination of the strength of the government's evidence." In addi-
tion, appellant argues that the court placed "undue" emphasis on this
single statutory factor. As to appellant's first objection, we find that
the magistrate properly refrained from weighing the merits of the gov-
ernment's case, and that the magistrate's deliberate consideration of
the particular circumstances of the offense charged is contemplated,
if not required, by the statute. See In re Sealed Case (Juvenile
Transfer), 893 F.2d 363, 370 (D.C. Cir. 1990) (holding that "nature
of the alleged offense" factor does not allow court to consider evi-
dence of offenses distinct from the offense charged, but noting that
it is proper for court to consider the specifics of the offense charged
in order to evaluate offense's "gravity" and the juvenile's "prospects
for . . . rehabilitation"); United States v. Doe, 871 F.2d 1248, 1254
(5th Cir. 1989) (permitting hearsay evidence about the "nature" of the
crime to be admitted in a transfer proceeding).

We further conclude that appellant's second objection to the dis-
trict court's consideration of the nature of the offense, that the court
unduly emphasized this factor, is foreclosed by our holding in
Juvenile Male #1. In that case, we stated that"[i]n the weighing of
the various factors, the nature of the crime clearly predominates."
Juvenile Male #1, 86 F.3d at 1323. Given the indisputable federal
interest in prosecuting the "premeditated assassination of a witness in
a federal investigation," J.A. at 230, the magistrate was on firm
ground in concluding that this factor would warrant transfer to adult
status "even if all other factors were favorable to T.E.S." Id. Never-
theless, the magistrate proceeded, as the statute requires, to consider
each factor in turn, and we find that the district court did not abuse
its discretion in concluding, after balancing all of the factors, that the
transfer of this "juvenile," one month shy of his eighteenth birthday
at the time of the alleged offenses, to the district court's adult criminal
jurisdiction was in the interests of justice.

CONCLUSION

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

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