                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 97-1646
                                 ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal        from      the     United
States
    v.                                  * District Court for the
                                        * Eastern    District    of
Missouri.
Juvenile Male J.A.J.,                 *
                                      *
            Appellant.                *
                                 ___________

                   Submitted:        November 17, 1997
                                                     Filed:             January
12, 1998
                                 ___________

Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN and
    MAGILL, Circuit Judges.
                       ___________

MAGILL, Circuit Judge.

    J.A.J. was seventeen years old when he was arrested
for the federal crimes of possession of crack cocaine,
marijuana, codeine, and a handgun. J.A.J. pled guilty to
federal juvenile delinquency charges after the district
court1 held that it had jurisdiction. On appeal, J.A.J.
challenges the sufficiency of the United States
Attorney's 18 U.S.C. § 5032 certification that a

      1
        The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
substantial   federal   interest   in   the   case   justified
federal




                            -2-
jurisdiction.   Because the United States Attorney's §
5032 certification of a substantial federal interest is
an unreviewable act of prosecutorial discretion, we
affirm.

                           I.

    J.A.J. was seventeen years old during the autumn of
1996 when he possessed with intent to distribute a total
of 1.31 grams of crack cocaine and .24 grams of codeine.
J.A.J. also possessed .94 grams of marijuana, a .25
caliber semi-automatic handgun, and 6 rounds of
ammunition. J.A.J. was indicted in federal court on five
counts of juvenile delinquency. Pursuant to 18 U.S.C. §
5032, the United States Attorney certified that J.A.J.
was a juvenile and that there was "a substantial federal
interest in the case and the offenses warrant[ed] the
exercise of Federal jurisdiction." Certification to
Proceed Under the Juvenile Justice and Delinquency Act at
2, reprinted in Appellant's Add. at 5.

    J.A.J. moved to dismiss the case for lack of
jurisdiction, and the district court denied the motion.
The district court stated:

    [T]hese matters that come here under this weed
    and seed program do not appear to this Court to
    have any overwhelming substantial interest.
    Many people in the community feel this is just
    gentrification, clean up the neighborhood so
    other folks can move in. It seems to be a city
    problem, a local problem, but of course here's
    the federal funding, and the Court of Appeals in
    [United States v. Juvenile Male, 923 F.2d 614
    (8th Cir. 1991),] seems to indicate that all the

                           -3-
    United States has to do is certify, just say
    that they have a substantial interest and the
    Court can't look behind it to make them prove
    that they have this interest. . . . I don't know
    that there's any substantial federal interest,
    but I'm not supposed to check them on that.

Tr. at 3-5, reprinted in Appellant's Br. at 1-2.   The
district court then dismissed J.A.J.'s motion "with
reluctance." Id. at 5, reprinted in Appellant's Br. at
2. J.A.J. pled guilty




                           -4-
to all charges, and was sentenced to concurrent sentences
of two years of probation.       J.A.J. now appeals the
district court's ruling that it had jurisdiction.

                          II.

    The determination of whether an executive decision is
subject to judicial review is a question of law, which we
review de novo.    See United States v. Tucker, 78 F.3d
1313, 1316 (8th Cir.), cert. denied, 117 S. Ct. 76
(1996).   This Court has not yet considered whether a
court may review a United States Attorney's § 5032
certification that the prosecution of a juvenile
represents a "substantial Federal interest," and other
circuits have split on the question.      Compare United
States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.) (§ 5032
certification of a substantial federal interest is not
reviewable), cert. denied, 118 S. Ct. 457 (1997),
Impounded, 117 F.3d 730 (3d Cir. 1997) (same), and United
States v. I.D.P., 102 F.3d 507 (11th Cir. 1996) (same),
cert. denied, 118 S. Ct. 305 (1997), with United States
v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir. 1996) (§
5032 certification of a substantial federal interest is
reviewable).

    While executive actions are presumptively subject to
judicial review, see Gutierrez de Martinez v. Lamagno,
115 S. Ct. 2227, 2236 (1995) (noting that "traditional
understandings and basic principles [are] that executive
determinations generally are subject to judicial review
and that mechanical judgments are not the kind federal
courts are set up to render"), that presumption can be
rebutted. See id. at 2231 ("[W]e have stated time and

                           -5-
again that judicial review of executive action will not
be cut off unless there is persuasive reason to believe
that such was the purpose of Congress." (quotations
omitted) (emphasis added)); see also Wayte v. United
States, 470 U.S. 598, 607 (1985) ("So long as the
prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or
bring before a grand jury, generally rests entirely in
his discretion." (quotations, citations, and alteration
omitted)). The Supreme Court explained that:




                           -6-
    This broad discretion rests largely on the
    recognition that the decision to prosecute is
    particularly ill-suited to judicial review.
    Such factors as the strength of the case, the
    prosecution's general deterrence value, the
    Government's enforcement priorities, and the
    case's relationship to the Government's overall
    enforcement plan are not readily susceptible to
    the kind of analysis the courts are competent to
    undertake. Judicial supervision in this area,
    moreover, entails systemic costs of particular
    concern. Examining the basis of a prosecution
    delays the criminal proceeding, threatens to
    chill   law   enforcement   by  subjecting   the
    prosecutor's motives and decisionmaking to
    outside inquiry, and may undermine prosecutorial
    effectiveness by revealing the Government's
    enforcement policy. All these are substantial
    concerns that make the courts properly hesitant
    to examine the decision whether to prosecute.

Id. at 607-08. Other unreviewable acts of prosecutorial
discretion include the Attorney General's decision under
28 U.S.C. § 594(e) to refer jurisdiction over a matter to
an independent counsel, see Tucker, 78 F.3d at 1316-19;
a United States Attorney's decision under 18 U.S.C. §
6003 that compelling a witness to testify is in the
public interest, see Ullmann v. United States, 350 U.S.
422,   431-34   (1956);   a  United   States   Attorney's
certification under 18 U.S.C. § 3731 that an appeal from
an adverse suppression ruling is not taken for purposes
of delay and involves evidence material to the
proceedings, see United States v. Kepner, 843 F.2d 755,
761 (3d Cir. 1988); the Attorney General's certification
under 18 U.S.C. § 3503(a) that the subject of a
deposition to preserve testimony is believed to have
participated in organized crime, see United States v.

                           -7-
Ricketson, 498 F.2d 367, 374 (7th Cir. 1974); and a
United States Attorney's decision under the Justice
Department's Petite Policy to prosecute a defendant in
federal court after the defendant has faced state charges
for the same underlying conduct, see Delay v. United
States, 602 F.2d 173, 178-79 (8th Cir. 1979).

    To determine if Congress intended § 5032 to allow
judicial   review   of   a  United   States   Attorney's
certification that the federal prosecution of a juvenile
would serve a substantial federal interest, we look to
the text and structure of the statute, see Kifer v.




                           -8-
Liberty Mut. Ins. Co., 777 F.2d 1325, 1332 (8th Cir.
1985) ("[W]e are guided by the 'cardinal rule' that our
primary object is to determine and to effectuate the
legislative intent as gleaned from the language of the
statute considered in its entirety."), as well as any
additional factors that may illuminate § 5032's purpose.
See, e.g., Gutierrez, 115 S. Ct. at 2231 (relying heavily
on two additional considerations to find reviewability:
(1) the Attorney General advocated reviewability, because
there was a financial incentive for a United States
Attorney to certify; and (2) the certification decision
was dispositive of the controversy).          Finally, a
statute's failure to provide meaningful standards for
judicial review can be dispositive that review is not
permitted.   See Webster v. Doe, 486 U.S. 592, 599-600
(1988) ("[E]ven when Congress has not affirmatively
precluded judicial oversight, review is not to be had if
the statute is drawn so that a court would have no
meaningful standard against which to judge the agency's
exercise of discretion." (interpreting APA) (quotations
and citations omitted)).

    Section 5032 describes the procedure for (1) trying
a juvenile in federal court and (2) transferring a
juvenile to be tried as an adult in federal court. A
district court has jurisdiction over a juvenile if

    the Attorney General [or the United States
    Attorney], after investigation, certifies to the
    appropriate district court of the United States
    that (1) the juvenile court or other appropriate
    court of a State does not have jurisdiction or
    refuses to assume jurisdiction over said
    juvenile with respect to such alleged act of


                           -9-
    juvenile delinquency, (2) the State does not
    have available programs and services adequate
    for the needs of juveniles, or (3) the offense
    charged is a crime of violence that is a felony
    or [an enumerated drug crime], and that there is
    a substantial Federal interest in the case or
    the offense to warrant the exercise of Federal
    jurisdiction.

18 U.S.C. § 5032 (emphasis added). Section 5032 does not
specifically allow or prohibit judicial review of the
Attorney General's certification under this paragraph,
nor does § 5032 explain what constitutes a "substantial
Federal interest."




                          -10-
    Separate paragraphs within § 5032 allow the transfer
of a juvenile to adult court. Section 5032 provides, in
this regard, that

    a juvenile who is alleged to have committed an
    act after his sixteenth birthday which if
    committed by an adult would be a felony offense
    that has as an element thereof the use,
    attempted use, or threatened use of physical
    force against the person of another, or that, by
    its very nature, involves a substantial risk
    that physical force against the person of
    another may be used in committing the offense,
    or would be an offense described in [enumerated
    statutes] and who has previously been found
    guilty of an act which if committed by an adult
    would have been one of the offenses set forth in
    this paragraph or an offense in violation of a
    State felony statute that would have been such
    an offense if a circumstance giving rise to
    Federal jurisdiction had existed, shall be
    transferred to the appropriate district court of
    the United States for criminal prosecution.

        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. In considering
    the nature of the offense, as required by this
    paragraph, the court shall consider the extent
    to which the juvenile played a leadership role

                          -11-
    in an organization, or otherwise influenced
    other   persons   to  take   part  in   criminal
    activities, involving the use or distribution of
    controlled substances or firearms.       Such a
    factor, if found to exist, shall weigh in favor
    of a transfer to adult status, but the absence
    of this factor shall not preclude such a
    transfer.

Id. (emphasis added).




                          -12-
    The   structure   and   text   of   §  5032   clearly
distinguishes between a United States Attorney's motion
to transfer a juvenile to adult court--which is
explicitly subject to judicial review and has specific
standards for review--and the United States Attorney's
certification of a substantial federal interest--which is
standardless and not explicitly subject to review.
"Where Congress includes particular language in one
section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion." Russello v. United States, 464 U.S. 16, 23
(1983) (quotations, citations, and alteration omitted).
Accordingly, Congress's decision to specifically allow
judicial review of transfer, but not of certification of
a substantial federal interest, is powerful evidence that
judicial review of the latter is barred. See Juvenile
No. 1, 118 F.3d at 305; I.D.P., 102 F.3d at 511.

     Further, in creating § 5032, Congress chose not to
provide standards for courts to assess when a substantial
federal interest is implicated, despite providing
explicit standards for the judicial review of transfers.
Such a lack of standards is fatal to the appellant's
argument for reviewability.    See Webster, 486 U.S. at
599-600; Juvenile No. 1, 118 F.3d at 305; Impounded, 117
F.3d at 735; cf. Juvenile Male, 923 F.2d at 617 (holding
that   judicial   review  was   available   for  §   5032
certification that offense was a crime of violence, and
noting that "[h]ere, no question exists as to the
standard we should apply to determine whether the crime
alleged is one of the crimes that Congress has determined
merits the intervention of the federal courts. . . .While

                           -13-
this court may not have the power to guide a federal
prosecutor's discretion, we must insure that the exercise
of that discretion is within the confines of section
5032.").2




      2
       In analyzing this statement, the Fourth Circuit concluded that the Juvenile Male
Court implied "that merely reciting the statutory language [regarding a 'substantial
Federal interest'] would be sufficient" to confer jurisdiction. See United States v.
Juvenile Male # 1, 86 F.3d 1314, 1317-18 (4th Cir. 1996).

                                         -14-
    While Congress has not created standards for
determining whether a substantial federal interest exists
to allow federal prosecution, the Department of Justice
has promulgated such standards for use by prosecutors.
Addressing when the prosecution of adult offenders should
be   declined--precisely   the   sort  of   prosecutorial
determination held by the Supreme Court to be exempt from
judicial review, see, e.g., Wayte, 470 U.S. at 607--for
the lack of a substantial federal interest, the
Department of Justice United States Attorneys' Manual
provides:

    In determining whether prosecution should be
    declined because no substantial federal interest
    would be served by prosecution, the attorney for
    the government should weigh all relevant
    considerations, including:

        1. Federal law enforcement priorities;
        2. The nature and seriousness of the
        offense;
        3. The deterrent effect of prosecution;
        4.   The    person's   culpability    in
        connection with the offense;
        5. The person's history with respect to
        criminal activity;
        6. The person's willingness to cooperate
        in the investigation or prosecution of
        others; and
        7. The probable sentence or other
        consequences if the person is convicted.

U.S. Dep't of Justice, U.S. Attorneys' Manual          §
9-27.230(A) (1993) (emphasis added). Considerations such
as "Federal law enforcement priorities," the "deterrent
effect of prosecution," and the defendant's "willingness
to cooperate in the investigation or prosecution of

                           -15-
others" are precisely the sort of policy judgments
invested in the executive, not the judicial, branch of
government. See Wayte, 470 U.S. at 607; I.D.P., 102 F.3d
at 511 ("In the context of certification under this
statute, the government's authority to ascertain the
presence of a substantial federal interest is no
different from its authority to decide whether to
prosecute a case in a federal forum.       This type of
decision falls squarely within the parameters of
prosecutorial discretion that [is unreviewable]."); see
also United States v. Armstrong, 116 S. Ct. 1480, 1486
(1996)




                          -16-
("The Attorney General and United States Attorneys retain
broad discretion to enforce the Nation's criminal laws.
They have this latitude because they are designated by
statute as the President's delegates to help him
discharge his constitutional responsibility to 'take Care
that the Laws be faithfully executed.' U.S. Const., Art.
II, § 3." (other quotations and citations omitted)).3

    We conclude that the text and structure of § 5032, in
addition to separation of powers concerns, demonstrate
that the United States Attorney's certification of a
substantial federal interest is an unreviewable act of
prosecutorial discretion.    Accordingly, we affirm the
district court.

RICHARD S. ARNOLD, Chief Judge, dissenting.

    I respectfully dissent.      The Court makes good
arguments, and I am almost persuaded, but on the whole I

      3
       Chief Judge Wilkinson, who disagreed with the Fourth Circuit's finding of
reviewability in Juvenile Male # 1, observed that allowing judicial review of a United
States Attorney's § 5032 certification of a substantial federal interest

      is fraught with mischief. Its reasoning would require, in every juvenile
      proceeding in federal court, that the district court fully reevaluate the
      government's reasons for invoking a federal forum. The prospect of
      inter-branch conflict is apparent. Suppose that the Attorney General
      believes that a particular case involves sufficiently serious violations of
      the federal criminal code to warrant federal adjudication. A district court,
      under the majority's interpretation of section 5032, could repudiate the
      Attorney General's policy determination by subjectively deciding that the
      case does not merit a federal proceeding.

Juvenile Male # 1, 86 F.3d at 1325-26 (Wilkinson, C.J., concurring in the judgment).

                                         -17-
find the opinion of the Fourth Circuit in United States
v. Juvenile Male No. 1, 86 F.3d 1314, 1317-21 (4th Cir.
1996), more persuasive.




                          -18-
    Presumably every federal prosecution is believed by
the United States Attorney who brings it to embody a
"substantial   Federal    interest."      Requesting  an
indictment, in some sense, amounts to a certification in
every case that such an interest exists. The statute at
issue here, however, in expressly requiring that "a
substantial Federal interest" be certified, in addition
to other possible factors, must mean something more. The
legislative history of the statute recognizes that most
prosecutions of juveniles should be in state courts.
Federal prosecutions are an exception. See S. Rep. No.
225, 98th Cong., 2nd Sess. 386, reprinted in 1984 U.S.
Code Cong. & Ad. News 3182, 3529. I would agree that our
review of such a certification should be extremely
deferential, but I cannot agree that this particular use
of executive power is wholly beyond judicial correction.

    It may be proper to add that, in the present case, in
response to an inquiry from the bench, the United States
gave an entirely plausible basis for its certification.
Cases in which such a certification would be rejected by
the courts would be extremely rare.     I doubt that the
present case would be among them.

    A true copy.


        Attest:


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




                           -19-
