                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-1144
                                     ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      * Appeal from the United States
                                      * District Court for the
      v.                              * District of South Dakota.
                                      *
Juvenile LWO,                         *
                                      *
           Defendant - Appellant.     *
                                 ___________

                               Submitted: May 12, 1998

                                    Filed: November 4, 1998
                                     ___________

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.
                           ___________

JOHN R. GIBSON, Circuit Judge.

       Juvenile LWO appeals the district court's order transferring his case for
proceedings against him as an adult on charges of assault with a dangerous weapon,
assault resulting in serious bodily injury, first degree burglary, and use of a firearm in
the commission of a felony. LWO argues that the district court erred in reaching its
conclusion to transfer his case to adult status by relying on evidence of an uncharged
assault and by relying on evidence of an assault for which a tribal hearing was pending.
LWO also argues that the district court abused its discretion in concluding that a
transfer to adult status would be in the interest of justice. We conclude that the district
court committed error and remand the case for further proceedings.

       The charges against LWO arose out of the shooting of Ellen Day Boy.1 Day Boy
and her roommate Hattie White Butterfly arrived at their trailer house early in the
morning of October 17, 1997. They found the trailer house door open and determined
that someone had been inside. Hearing a gunshot behind the trailer, Day Boy went in
back to investigate, where she found LWO holding a rifle he had taken from the trailer.
He fired the rifle, hitting Day Boy in the upper right biceps. He fired a second shot that
struck Day Boy in the back. Officers arrested LWO later that morning. He was
charged with assault with a dangerous weapon under 18 U.S.C. §§ 113(a)(3) and 1153
(1994); assault resulting in serious bodily injury under 18 U.S.C. §§ 113(a)(6) and
1153; first-degree burglary under South Dakota Codified Laws § 22-32-1(3) (Lexis
1998) and 18 U.S.C. § 1153; and use of a firearm in commission of a felony under 18
U.S.C. § 924(c)(1) (1994). The United States filed a certificate pursuant to 18 U.S.C.
§ 5032 (1994), asserting that the State of South Dakota did not have jurisdiction and
that there was a substantial federal interest in the case. The United States also filed a
motion pursuant to section 5032 to transfer LWO’s case to adult status.

       The district judge conducted a hearing on the motion, and FBI Agent William
Grode testified about the shooting of Day Boy. Grode then testified, over objection,
that on March 18, 1997, LWO beat his girlfriend and kicked and struck tribal police
officers when they arrived on the scene. Grode further testified, over objection, that
on September 13, 1997, LWO was one of four people involved in the assault of Lonnie
Bad Bear. According to Grode, Bad Bear had told tribal officers that LWO, LWO's
brother Orville, and two other men had attacked him with a handgun and a shovel. On


      1
        A district court may assume the truth of the alleged offense at a transfer hearing,
see In re Sealed Case, 893 F.2d 363, 369 (D.C. Cir 1990), and we have so stated the
facts as alleged.
                                            -2-
cross-examination, Grode admitted it was unknown who had the handgun and the
shovel. Grode also admitted that while there was evidence that LWO was present
during the attack, there was no evidence that he actively participated in the attack. After
both the March 18 and September 13 incidents, LWO was arrested for public
intoxication.

      A number of witnesses then testified as to LWO's background, his ability in
school, his psychiatric condition, his display of fetal alcohol symptoms, his response to
treatments and the availability of further treatment.

       Attached to the motion to transfer as Exhibit 8 was a record of the Oglala Sioux
Tribal Court. The tribal court record had no reference to any charges or offenses arising
out the alleged assault of September 13. As for the alleged assault of March 18, the
tribal record listed offenses of intoxication, profane language, assault, and resisting
lawful arrest. There was no disposition of these offenses, and the disposition register
was marked "hearing 11.13.97." The tribal court record also listed various offenses
including a malicious mischief offense that had a disposition of "30 days good
behavior"; a fighting offense that had a disposition of "30 days good behavior"; an
intoxication offense and a spouse abuse offense that had dispositions of "domestic
violence and 60 days"; and two driver's license offenses that had dispositions of "no
report" and "no license."

       At the conclusion of the hearing, the district court addressed the six factors
provided in section 5032 for determining whether a transfer to adult status would be in
the interest of justice. With respect to the social background of LWO, the court found
LWO's mother "wasn't there in April of 1997,2 when there was an act of violence,


      2
       Neither the tribal court record nor the transcript of Grode's testimony provides
any evidence of an incident occurring in April of 1997. The transcript of the hearing
makes it clear that the court was referring to the alleged assault of March 18, 1997.
                                            -3-
assaultive behavior. She wasn't there for him on September 13 when there was another
act of violence involving the handgun."

      The court assessed LWO's prior delinquency record as follows:

      With respect to the third factor that the Court must consider, the extent and
      nature of the juvenile's prior delinquency record, the Court also has
      already alluded to the two incidents; one in April3 and one in September
      of 1997. Exhibit 8 indicates malicious mischief, intoxication, spouse
      abuse, resisting lawful arrest, and driver's license violations.

The court addressed the remaining section 5032 factors and concluded that transferring
LWO's case to adult status was in the interest of justice.

        LWO argues that the district court erred by relying on evidence of the alleged
assault of September 13, for which there were no charges, and by relying on evidence
of the alleged assault of March 18, for which there was a hearing on various charges
pending at the time of the transfer hearing. Thus, the questions before us are whether
a district court may consider evidence of an uncharged assault in determining whether
a transfer would be in the interest of justice and, similarly, whether a district court may
consider evidence of an assault for which there has been a charge but no conviction,4
in determining whether a transfer would be in the interest of justice. Because answering
these questions requires us to interpret section 5032, we will review the

      3
          See note 2 supra.
      4
         In this opinion, we do not use the term "conviction" in its most technical sense.
We recognize that under the federal statutes a juvenile is not adjudicated to be guilty
as a criminal; rather, he is adjudicated to be a juvenile delinquent. See United States
v. Hill, 538 F.2d 1072, 1074 (4th Cir. 1976); 18 U.S.C. § 5037 (1994). States refer to
judgments against juveniles with different nomenclature. In using "conviction," we
simply mean a disposition of a charge in which there has been an adjudication or an
admission of behavior which violates penal law.
                                            -4-
district court's decision de novo. See United States v. Nelson, 68 F.3d 583, 588 (2d Cir.
1995), cert. denied, 117 S.Ct. 1259 (1997); In Re Sealed Case, 893 F.2d 363, 369 n.13
(D.C. Cir 1990).

      We begin our analysis with the plain language of section 5032, in which Congress
provided six factors for the district court to address in determining whether a transfer
would be in the “interest of justice.” Section 5032 states:

      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
      development and psychological maturity; the nature of past treatment
      efforts and the juvenile's response to such efforts; the availability of
      programs designed to treat the juvenile's behavioral problems.

       The plain language of the statute does not explicitly mention offenses for which
there has been no charge or a charge but no conviction. Nevertheless, the United States
argues that section 5032 permits the court to consider evidence of the alleged assaults.
In interpreting the six "interest of justice" factors provided by section 5032 we do not
write on a clean slate, as the D.C. Circuit has already interpreted section 5032's "nature
of the alleged offense" factor in a similar context.

      In In re Sealed Case, the United States, which sought to transfer the defendant
to the district court for trial as an adult, charged the defendant with multiple counts of
cocaine distribution and a count of conspiracy to possess and distribute cocaine. See
893 F.2d at 365. The United States later dropped the charge of conspiracy to possess
and distribute cocaine. See id. Nevertheless, the district court considered evidence of
the defendant's participation in the conspiracy at the transfer hearing when it was
analyzing the "nature of the alleged offense" pursuant to section 5032. See id.


                                           -5-
       The D.C. Circuit concluded the district court had erred in interpreting the statute
to allow consideration of the conspiracy evidence. In the court's opinion, the plain
language of the phrase, "the nature of the alleged offense," could not plausibly be
interpreted to encompass evidence of unalleged offenses. See id. at 368. Furthermore,
Congress had provided the six "interest of justice" factors with specificity; thus,
considering all kinds of extrinsic evidence about the juvenile's other current and past
activities when analyzing the "nature of the alleged offense" would undermine the
"thrust of the entire section." Id. at 368-69. Finally, the court observed that due process
principles militated toward interpreting the "nature of the alleged offense" as excluding
evidence of offenses different from the one charged. See id. at 369. While a juvenile
can contest evidence offered for five of the six "interest of justice" factors provided by
section 5032, the district court is entitled to assume that the juvenile committed the
offense charged for the purpose of the transfer hearing. See id. Such an assumption
does not violate the juvenile's due process rights because a trial will correct any reliance
on inaccurate allegations made at the transfer hearing. See id. However, allegations of
other uncharged criminal acts will not be corrected at trial; thus, allowing a district
judge to consider evidence of uncharged crimes under the "nature of the alleged
offense" category and to presume that the juvenile committed the uncharged crimes
would violate the juvenile's due process rights. See id.

       We agree with the D.C. Circuit's reasoning and its conclusion that section 5032
"does not authorize a judge to consider evidence of other crimes in assessing 'the nature
of the alleged offense.'" Id. The United States maintains that even if evidence of the
alleged assaults cannot be considered under the "nature of the alleged offense" factor,
it may still be considered under one of the other five "interest of justice" factors.

      Four other "interest of justice" factors could possibly be read to support
considering evidence of the alleged assaults: "the extent and nature of the juvenile's
prior delinquency record"; "the juvenile's present intellectual development and
psychological maturity"; "the age and social background of the juvenile"; and "the

                                            -6-
nature of past treatment efforts and the juvenile's response to such efforts." Regarding
the "extent and nature of the juvenile's prior delinquency record," just as the D.C.
Circuit believed that the plain language of the term "the nature of the alleged offense"
could not plausibly be interpreted to encompass evidence of unalleged offenses, see id.
at 368, we believe the plain language of the term "the juvenile's prior delinquency
record" cannot plausibly be interpreted to encompass evidence of unrecorded acts, nor
can it be plausibly interpreted to encompass evidence of conduct which has not been
adjudicated or admitted to be delinquent or criminal (emphasis added). Thus, the plain
language of the term "the juvenile's prior delinquency record" would not encompass
evidence of incidents or behavior, which could be of a delinquent or criminal nature, for
which there has been no charge or a charge but no conviction. Because we conclude
the plain language of the term "the extent and nature of the juvenile's delinquency
record" is unambiguous, we do not inquire further about Congress' intent in using the
term. See Adams v. Apfel, 149 F.3d 844, 846 (8th Cir. 1998).

        Our agreement with the D.C. Circuit does not extend to its interpretation of the
terms "the juvenile's present intellectual development and psychological maturity," "the
age and social background of the juvenile," and "the nature of past treatment efforts and
the juvenile's response to such efforts." The D.C. Circuit concluded, without
explanation, that those terms are "entirely unrelated" to the juvenile's alleged violations
of the law. See In re Sealed Case, 893 F.2d at 369 n.12. However, the plain language
of those terms is broad enough to authorize the admission of evidence regarding almost
any action, criminal or otherwise, the juvenile has taken. Congress left us no persuasive
evidence that those terms were not meant to include a juvenile's alleged violations of the
law. Furthermore, admitting evidence under those factors does not raise a due process
issue because a juvenile is free to contest any evidence offered. See In re Sealed Case,
893 F.2d at 369 n.12. With the lack of persuasive legislative history and the elimination
of the due process concern, we cannot interpret the language as restrictively as LWO
urges. Instead, we hold that section 5032 leaves to the sound discretion of the district
court the decision to admit evidence of other incidents and

                                            -7-
behavior, that may be alleged to be criminal or delinquent, as relevant to "the juvenile's
present intellectual development and psychological maturity," "the age and social
background of the juvenile," and "the nature of past treatment efforts and the juvenile's
response to such efforts." The district court must make a determination that such
incidents and behavior are in fact relevant to the statutory factors in the particular case.



       We realize that we have drawn a distinction between the statutory factors, but the
language of the statute requires it. When dealing with evidence of other incidents,
behavior, and resulting charges, if any, a district court must consider the nature of the
particular factor and precisely how the alleged incidents, behavior, charges, and
surrounding circumstances are relevant to that factor. The district judge should
articulate the reasons for considering such evidence, and the manner in which such
evidence bears upon the analysis of the factor.

       The case at hand is illustrative. In assessing LWO's social background, the
district judge found that LWO's mother was not "there for him" when he allegedly
committed two assaults. The court did not, however, articulate the relationship between
LWO's earlier incidents and behavior, and the factor under consideration. Furthermore,
in assessing LWO's juvenile delinquency record, the district court erroneously relied on
the evidence of the alleged assaults. Considering the assaults as part of LWO's juvenile
record, and therefore solely for their criminal nature, was highly prejudicial particularly
because of the alleged use of dangerous weapons (a shovel and a handgun) and the
alleged identity of particular victims (tribal officers and LWO's girlfriend). With the
exception of the alleged assaults and the spouse abuse conviction, LWO's prior
delinquency record consists mainly of relatively minor offenses. Before the district
court can make a fair "interest of justice" determination, it must consider the proper
juvenile delinquency record, excluding the incident for which there was no charge and
the incident for which there was a charge but no conviction. Thus, a remand is
necessary, and we need not address LWO's claim that the district court

                                            -8-
abused its discretion in determining that a transfer of his case to adult status was in the
interest of justice.

       In conclusion, it is erroneous for a district court to consider evidence of incidents
or behavior for which there has been no charge or a charge but no conviction when
assessing a juvenile's delinquency record pursuant to section 5032. Such evidence may
be considered in analyzing the other three factors as we discussed above. Accordingly,
we remand for proceedings consistent with this opinion.

       A true copy.

              Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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