18‐1909‐cr
United States v. Juvenile Male


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 3rd day of December, two thousand nineteen.

PRESENT: JOHN M. WALKER, JR.,
                 GERARD E. LYNCH,
                 RICHARD J. SULLIVAN,
                         Circuit Judges.
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UNITED STATES OF AMERICA,

                                   Appellee,

                          v.                                     No. 18‐1909‐cr

JUVENILE MALE,

                                 Defendant‐Appellant.
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FOR APPELLANT:                                   GERALD J. DI CHIARA, The Law Offices of
                                                 Gerald Di Chiara, New York, NY.
FOR APPELLEE:                          PAUL G. SCOTTI, Assistant United States
                                       Attorney (Susan Corkery, John J. Durham,
                                       Assistant United States Attorneys on the brief),
                                       for Richard P. Donoghue, United States
                                       Attorney for the Eastern District of New
                                       York, Brooklyn, NY.

      Appeal from a judgment of the United States District Court for the Eastern

District of New York (Joseph F. Bianco, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

      Defendant‐Appellant Juvenile Male (“Defendant”) appeals from an order of

the United States District Court for the Eastern District of New York (Bianco, J.)

granting the government’s motion pursuant to 18 U.S.C. § 5032 to transfer his case

to district court in order to prosecute him as an adult. In July 2017, the government

charged Defendant with one count of racketeering by engaging in conspiracy to

murder and murder, in violation of 18 U.S.C. § 1962(c); one count of racketeering

conspiracy, in violation of 18 U.S.C. § 1962(d); one count of conspiracy to commit

murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); and four counts

of murder in aid of racketeering, in violation of 18 U.S.C. §§ 2, 1959(a)(1). After a

hearing at which the district court considered the government’s motion to prosecute

Defendant as an adult, the district court issued a detailed, 17‐page opinion that



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scrupulously considered the relevant factors pursuant to 18 U.S.C. § 5032 and

granted the government’s motion. We assume the parties’ familiarity with the

underlying facts and prior record of proceedings, to which we refer only as

necessary to explain our decision to affirm.

      “The determination of whether to transfer an action is committed to the

discretion of the district court, and will be disturbed only where this Court finds an

abuse of that discretion.” United States v. Juvenile Male No. 1, 47 F.3d 68, 71 (2d Cir.

1995). A district court abuses its discretion when it makes an error of law, such as

failing to make required factual findings; when the facts it finds are clearly

erroneous; or when its conclusion cannot be located within the range of permissible

decisions. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008); see also United

States v. Nelson, 68 F.3d 583, 588 (2d Cir. 1995).

      “A juvenile fifteen years of age or older who is ‘alleged to have committed an

act after his fifteenth birthday which if committed by an adult would be a felony

that is a crime of violence’ may be proceeded against as an adult where a district

court, after a transfer motion by the Attorney General, finds that it is ‘in the interest

of justice’ to grant a transfer.” Id. (quoting 18 U.S.C. § 5032). In making this

determination, the district court must consider the following six factors: “the age

and social background of the juvenile; the nature of the alleged offense; the extent

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and nature of the juvenile’s prior delinquency record; the juvenile’s present

intellectual development and psychological maturity; the nature of past treatment

efforts and the juvenile’s response to such efforts; [and] the availability of programs

designed to treat the juvenile’s behavioral problems.” 18 U.S.C. § 5032. The district

court must make findings on the record with regard to each factor. Id. Importantly,

“[t]he six statutory factors need not be accorded equal weight by the district court,

which may balance the factors in any way that seems appropriate to it.” Nelson, 68

F.3d at 588. “[W]hen a crime is particularly serious, the district court is justified in

weighing this factor more heavily than the other statutory factors.” Id. at 590. The

appellant bears a “heavy burden” in seeking to overturn a decision to transfer based

on a district court’s balancing of the six factor test pursuant to 18 U.S.C. § 5032; we

are unaware of any case in which we have done so. See Juvenile Male No. 1, 47 F.3d

at 71.

         On appeal, Defendant argues that the district court abused its discretion by

making erroneous findings of fact, using a “bright line test” for murder charges,

and ordering the transfer against the weight of evidence. But the district court did

no such thing. The district court carefully addressed each factor as it applied to

Defendant, made factual findings for each, and ultimately determined that, on

balance, transfer was warranted. Defendant fails to point to any findings of fact

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unsupported by the record. Nor has Defendant shown that the district court

otherwise abused its discretion. Contrary to Defendant’s argument, the district

court did not apply a bright line or per se test, but conscientiously considered each

factor as required under 18 U.S.C. § 5032. And while the court did afford more

weight to the seriousness of the offense than to the other factors, this was not an

abuse of discretion since the alleged crimes include intentional murder, and the

district court is permitted to weigh this factor more heavily than the other statutory

factors.   Under these circumstances, we will not second‐guess the reasonable

discretion of the district court.

      We have considered the rest of Defendant’s arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court. The

parties are directed to advise the Clerk of Court no later than fifteen days from the

date of this order, by letter briefs not to exceed three single‐spaced pages, as to

which, if any, of the previously sealed filings in this case may be unsealed (with or

without redaction).

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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