                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
___________

No. 01-3284
___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Juvenile Male MC,                       *
                                        *
            Appellant.                  *

____________                                Appeals from the United States
                                            District Court for the
No. 01-3285                                 District of Nebraska
____________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Juvenile Male WW,                      *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: April 19, 2002

                                 Filed: November 13, 2002
                                  ___________
                                    ____________

Before HANSEN, Chief Judge, and McMILLIAN and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________

McMILLIAN, Circuit Judge.

       Appellants, MC and WW, juveniles, appeal from orders and judgments entered
by the United States District Court for the District of Nebraska,1 transferring them for
criminal prosecution as adults, pursuant to 18 U.S.C. § 5032. Appellants contend that
the district court abused its discretion in ordering the transfers. We disagree and
affirm.

BACKGROUND

       The government's evidence presented at the transfer hearings was as follows.
On June 23, 2001, at 4:45 p.m., the body of Brandon Horn (Horn) was discovered in
a field of tall grass located in the Omaha Indian Reservation in Thurston County,
Nebraska. The field was approximately 60 yards north of Unit 95, the residence of
MS, a friend of both appellants. Horn was found naked, covered in bruises, and lying
face down in a pool of blood. An autopsy determined that the cause of death was a
subdural hematoma to the left side of the head caused by a blunt force trauma. The
autopsy also determined that Horn had been alive for about twelve hours before he
died at 3:00 p.m. on June 23 and probably would have survived if he had received
medical treatment earlier that day.

      The night before the discovery of Horn's body, Horn and MS were at MS’s
house. During a fight between the two, a group of individuals, including Wayne

      1
       The Honorable Joseph F. Battaillon, United States District Judge for the
District of Nebraska.

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Bertucci, Kareem Robinson, Angel Merrick, MC, who was 17 years old, and WW,
who also was 17 years old, came to MS's house. The group had been drinking and
socializing at a nearby residence and went to MS's house to find and assault an
individual named “Keenan,”2 who had insulted WW earlier that evening. Bertucci
brought along a video camera to videotape the beating of Keenan. Although Keenan
was not at MS's house, the group joined with MS in beating Horn until he was
unconscious. Bertucci taped a portion of the beating, but stopped when he saw blood.
Bertucci urged the others to stop and left when the beating continued. MS dragged
Horn, unconscious and virtually naked, out onto the porch and continued beating,
kicking, and stomping on him. Merrick and another person dragged Horn to the field
where he was found. While Horn was being taken to the field, MC and WW
assaulted Horn's brother. After the assaults, the group talked and laughed about them.
MC returned to the field the next morning and saw that Horn was still alive.
However, MC did not try to help Horn or summon aid.

       MC, WW, MS, Merrick, and Robinson3 were charged with second degree
murder and with assault resulting in serious bodily injury. Pursuant to 18 U.S.C.
§ 5032, the government moved for transfers of WW, MC, and MS to the district court
for criminal prosecution as adults. As relevant here, § 5032 provides for a mandatory
transfer if a juvenile committed an offense after his sixteenth birthday, the offense
involved the use of physical force and would have been a felony if committed by an
adult, and the juvenile had previously been convicted of such an offense. In addition,
the statute provides for a discretionary transfer "in the interests of justice." Under the
discretionary transfer provision, a district court must consider and make findings
concerning the nature of the alleged offense, the juvenile's age, social background,
prior delinquency record, intellectual development, psychological maturity, past

      2
        It is unclear whether the individual is named "Keenan" or Keegan." We will
refer to him as "Keenan."
      3
          Merrick and Robinson were charged as adults.

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treatment efforts and responses to them, and availability of programs designed to
meet behavioral problems. In addition, a district "court must balance the likelihood
of rehabilitation before the juvenile reaches majority with the risk of harm to the
public from treating violent crime more leniently." United States v. Juvenile JG, 139
F.3d 584, 586 (8th Cir. 1998) (Juvenile JG).

        At separate hearings on the motions, the government presented evidence
relating to the statutory factors. At WW's hearing, among other things, the
government presented evidence that WW had been expelled from school twice and
had an extensive tribal court juvenile record, including convictions for burglary,
aggravated assault, and aggravated weapons offenses. A juvenile probation officer
testified that WW had been referred for alcohol and psychiatric evaluations three
times and had shown up for one appointment, but that his mother never consented to
further evaluation or treatment. Dr. Cynthia Topf, a clinical psychologist, testified
on WW's behalf. Dr. Topf testified that WW had lived with several relatives over the
years, had a polysubstance abuse problem, had a borderline IQ, impaired judgment,
and a conduct disorder. Although the doctor believed that WW should be treated a
juvenile, she admitted that there were limited juvenile treatment options.

       The government's evidence at MC's hearing revealed that he had left school in
the ninth grade, was unemployed, lived with his sister, had an extensive tribal court
juvenile record, and, despite six tribal court orders for substance abuse and
psychiatric evaluations, he had not been evaluated. Dr. Judy Magnuson, a clinical
psychologist, testified on MC's behalf. Dr. Magnuson testified that MC had a
substance abuse problem, depressive disorder, and oppositional defiant disorder,
which meant that he had difficulty with authority figures and was likely to be non-
compliant. She also testified that MC had not fully cooperated in intellectual and
psychological testing, which resulted in scores lower than his actual abilities. The
doctor recommended placement in a juvenile facility, but admitted that MC would
benefit from supervised release following a discharge from an adult facility.

                                         -4-
       After the hearings, the district court granted the government's motion to
transfer MC and WW, but denied it as to MS. With respect to WW, the district court
believed that his tribal court conviction for aggravated assault qualified as statutory
predicate offense for a mandatory transfer under § 5032. However, because this court
had never addressed the question of whether a tribal court conviction qualified as a
statutory predicate offense, the district court went on to balance the statutory factors
for a discretionary transfer, as it also did for MC and MS. As to all the juveniles, the
district court noted "the heinous, senseless nature of the crime." As to both WW and
MC, the district court especially noted their extensive juvenile records and that they
had not followed through with court-ordered evaluations. As to MS, the district court
noted that, despite the brutality of the attack, it would deny the government's motion
for transfer because MS was "salvageable."

DISCUSSION

      We review the district court's decisions to transfer WW and MC to adult status
for an abuse of discretion, and "the underlying factual findings for clear error."
United States v. Juvenile MLA, 157 F.3d 616, 617 (8th Cir. 1998).4

       Appellants do not, and could not, dispute the district court's characterization
of Horn's murder as "heinous" and "senseless." Nor do they dispute that "when a
crime is particularly serious, the district court is justified in weighing [that] factor
more heavily that the other statutory factors." United States v. Ramirez, 297 F.3d
185, 193 (2d Cir. 2002) (internal quotation omitted). Instead, they try to minimize
their role in Horn's beating. For example, WW asserts that he "only" kicked Horn
seven times. MC asserts that he was not responsible for the fatal blow. However, the


      4
       Because we hold that the district court did not abuse its discretion in granting
a discretionary transfer as to WW, we do not address his arguments concerning a
mandatory transfer.

                                          -5-
district court carefully considered their roles in the offense. Among other things, the
district court noted that WW had led the group to MS's house and that, although MC
found Horn still alive the day after the beating, he did nothing to aid Horn.

       WW and MC also take issue with the district court's weighing and balancing
of the other statutory factors. However, "[t]he district court is not required to afford
equal weight to each factor, but instead may balance them as it deems appropriate."
United States v. Juvenile Male # 1, 47 F.3d 68, 71 (8th Cir. 1995); see also Juvenile
JG, 139 F.3d at 586-87 ("weight assigned to any one factor listed in the statute is
within the sound discretion of the district court"). In these cases, "the seriousness of
the offense and [appellants'] juvenile record[s] weighed in favor of transfer." Id. at
587.

       WW also argues that the district court abused its discretion because it did not
grant the government's transfer motion as to MS. Although the government does not
agree with the district court's decision as to MS, the government did not appeal it, and
we do not review it. In any event, as the government asserts, the district court's denial
of the motion to transfer MS does not aid WW in showing an abuse of discretion.
The district court's decisions were based on the evidence presented as to each juvenile
and on an individualized weighing and balancing of the statutory factors. In
particular, we note the fact that the district court denied transfer as to MS because it
found him "salvageable" reflects its care in balancing the likelihood of rehabilitation
with the risk of public harm by "treating violent crime more leniently." Id. at 586.

      We hold that the district court did not abuse its discretion in granting the
government's motion to transfer MC and WW to adult status, pursuant to 18 U.S.C.
§ 5032. Accordingly, we affirm the judgments.




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A true copy.

     Attest:

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




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