                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        APR 13 1999
                                 PUBLISH                            PATRICK FISHER
                                                                             Clerk
              UNITED STATES COURT OF APPEALS
                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                   No. 98-2028

 ANTHONY Y. (a juvenile),

       Defendant-Appellant,


                  Appeal from the United States District Court
                        for the District of New Mexico
                           (D.C. No. CR-96-748 JP)


Phillip P. Medrano, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellant.

Louis E. Valencia, Assistant United States Attorney (John J. Kelly,
United States Attorney, with him on the brief), Albuquerque, New Mexico,
for Plaintiff-Appellee.


Before SEYMOUR, Chief Judge, BALDOCK and BRISCOE, Circuit Judges.


SEYMOUR, Chief Judge.
      At issue in this interlocutory appeal is whether the district court acted within

its discretion in transferring Anthony Y., a Navajo juvenile charged with murder,

to adult status. Anthony Y. first asserts the government did not adequately

establish the failure of past treatment efforts nor the absence of appropriate

treatment centers. Second, he contends the district court erred by considering acts

other than his adjudicated offenses when evaluating his juvenile record. Finally,

he claims the district court erred in finding that his social background weighed in

favor of transfer, and that he played a major leadership role in the offense. We

have jurisdiction of the district court’s interlocutory order under the collateral

order doctrine of Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541 (1949).

See United States v. Angelo D., 88 F.3d 856, 857-59 (10th Cir. 1996). For the

reasons set out below, we affirm.



                                           I.

      Late in the evening of December 11, 1996, Anthony Y. suggested to his

friend Severiano B. that they “jack” (beat up and possibly rob) someone. 1



       1
        When determining whether to transfer a juvenile to adult status, “the
court may assume the truth of the government’s allegations regarding the
defendant’s commission of the crime.” United States v. Leon, D.M., 132 F.3d 583,
598-90 (10th Cir. 1997).

                                          -2-
Severiano agreed and the two left his house with a weightlifting bar, a baseball

bat, and a gun. At some point that night, they drank at least a quart of malt liquor

supplied by Anthony and smoked marijuana. Later that night, the boys caught a

ride to U.S. highway 666 where they were dropped off. They walked along the

highway until they came across the truck of Gary Wayne Adams, and his son, Gary

Douglas Adams, who were transporting M&M/Mars products. Anthony Y. shot

both men in the head, killing them. Anthony Y. and Severiano B. then dragged

Gary Wayne Adams’ body away from the truck. They rummaged through the truck

and the victims’ pockets, stealing about $20, a TV/VCR unit, a cellular phone, and

a case of candy. Anthony Y. was arrested December 14, 1996; Severiano B. was

arrested the following day. Anthony Y. was fifteen years and one month old at the

time.

        The government moved to transfer both boys to adult status. The district

court held a hearing and made findings pursuant to 18 U.S.C. § 5032. The court

decided “with reservations” that transferring Anthony Y. would be in the interest

of justice; it found transferring Severiano B. would not be. Specifically, the

district court found that Anthony Y.’s unstable and unsupportive background, his

role in the horrific murders, and his previous history of violent behavior tipped the

balance in favor of adult status.




                                          -3-
                                          II.

      The purpose of the federal juvenile delinquency process “is to remove

juveniles from the ordinary criminal process in order to avoid the stigma of a prior

criminal conviction and to encourage treatment and rehabilitation.” United States

v. Brian N., 900 F.2d 218, 220 (10th Cir. 1990). The district court must balance

these important interests against the need to protect the public from dangerous

individuals. See United States v. Doe, 94 F.3d 532, 536 (9th Cir. 1996); United

States v. Juvenile Male # 1, 47 F.3d 68, 71 (2d Cir. 1995); United States v. One

Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994). “Juvenile adjudication is

presumed appropriate unless the government establishes that prosecution as an

adult is warranted.” Juvenile Male # 1, 47 F.3d at 71; see also United States v.

Leon, D. M., 132 F.3d 583, 589 (10th Cir. 1997); United States v. Nelson, 68 F.3d

583, 588 (2d Cir. 1995).

      Congress delineated six factors to guide the district court in determining

whether transfer to adult status would be “in the interest of justice”:

       [1] the age and social background of the juvenile; [2] the nature of
       the alleged offense; [3] the extent and nature of the juvenile’s prior
       delinquency record; [4] the juvenile’s present intellectual
       development and psychological maturity; [5] the nature of past
       treatment efforts and the juvenile’s response to such efforts; [6] the
       availability of programs designed to treat the juvenile’s behavioral
       problems.

18 U.S.C. § 5032. The district court must consider and make findings as to each


                                          -4-
factor. Id. We review the decision to transfer for an abuse of discretion. See

Leon, D.M., 132 F.3d at 590.



A.    Past Treatment Efforts and Availability of Appropriate Programs

      Anthony Y. argues that the district court abused its discretion by finding

that the government and defense experts who testified about past and future

treatment “cancel[ed] out one another.” Aplt. Br. at 40. He asserts the district

court must make findings as to each factor and abdicated this responsibility here.

Furthermore, because the district court failed to find that these two factors

supported a transfer to adult status, Anthony Y. argues the government failed to

carry its burden of persuasion on the transfer issue.

      Section 5032 mandates that the district court consider and make findings as

to each of the six statutory factors. In addition, the government must present

evidence on each factor. See United States v. M.H., 901 F. Supp. 1211, 1213 (E.D.

Tex. 1995) (“Failure of the government to address any factor leads to a denial of

the transfer request.”); United States v. A.J.M., 685 F. Supp. 1192, 1192-93

(D.N.M. 1988). However, the district court need not find that each factor weighs

in favor of transfer in order to grant the government’s motion. The court need not

even find a majority of factors weigh in favor of the prevailing party, as “it is not

required to give equal weight to each factor but ‘may balance them as it deems


                                          -5-
appropriate.’” Leon, D.M., 132 F.3d at 589 (quoting Juvenile Male # 1, 47 F.3d at

71). Indeed, though the court must address each factor, it “is not required to state

whether each specific factor favors or disfavors transfer.” Id. The decision to

transfer is a grave and often difficult one, and does not lend itself to simple

mathematical formulas. See United States v. Wilson, 149 F.3d 610, 614 (7th Cir.

1998). Rather, the district court must balance the evidence before it, weighing

each factor as it sees fit, to determine whether a transfer to adult status best serves

“the interest of justice.” 18 U.S.C. § 5032.

      The district court found that the fifth factor, past treatment efforts and

response to such efforts, and the sixth factor, availability of appropriate programs,

neither favored nor disfavored transfer. Dr. Hill, the government’s expert, and Dr.

Enfield, the defense expert, disagreed about whether Anthony Y. had ever been

given the opportunity to partake in an appropriate treatment program, and whether

he could be rehabilitated in the proper setting. In its decision to transfer Anthony

Y., the district court discussed the evidence regarding each factor. It described

both experts as “credible,” rec., vol. I, doc. 85 at 12, and did not find that one’s

opinion outweighed the other. Because of this, Anthony Y. argues that the district

court improperly failed to make the statutorily mandated findings. We disagree.

      The district court’s opinion simply indicates it found the evidence on the

fifth and sixth factors in equipoise, a decision well within its discretion. The


                                           -6-
government thus did not meet its burden of convincing the court that the

circumstances of past treatment and availability of treatment programs favored

transfer to adult status. Because the district court engages in a balancing of all six

factors, however, the government may still ultimately prevail even though it failed

to a prove a particular factor warrants transfer. 2 See, e.g., Wilson, 149 F.3d at

612-614; One Juvenile Male, 40 F.3d at 845-46. We hold the district court’s

findings on the fifth and sixth factor were within its discretion, and did not

preclude its decision to transfer Anthony Y. to adult status.



B.    Juvenile Record

      Anthony Y. next contends the district court erred in considering

unadjudicated conduct under the third factor, the extent and nature of the

juvenile’s delinquency record. Anthony Y.’s juvenile delinquency record

consisted of three adjudicated offenses: stealing a bicycle, carrying a sharpened

screwdriver on school grounds, and creating a public nuisance by running around

an apartment building using a can of hair spray as a torch. The district court

looked at numerous other incidents of misbehavior in weighing the third factor,

noting in its discussion of Anthony Y.’s record that he “frequently got into fights,




       Of course, if the evidence is in equipoise on six factors, the government
       2

would have failed to meet its overall burden and transfer would be inappropriate.

                                          -7-
abused drugs, and missed school.” Rec., vol. I, doc. 85 at 10. The court found in

addition that Anthony destroyed neighborhood property, physically assaulted his

counselor, fought with another teenager a day or two after committing the murders,

and violated several rules while being detained on the instant charges.

      Two circuits have addressed the meaning of a “juvenile’s prior delinquency

record” in section 5032. In Wilson, 149 F.3d 610, the Seventh Circuit concluded

the phrase encompasses both arrests and convictions, 3 but it did not permit the

government to offer evidence to prove the conduct underlying arrests that did not

result in a conviction. Id. at 613. The Eighth Circuit adopted a narrower

definition in United States v. Juvenile LWO, 160 F.3d 1179 (8th Cir. 1998),

holding that under section 5032 a juvenile’s delinquency record covers only prior

convictions. Id. at 1183.

      We need not decide whether to follow the Seventh or Eighth Circuit or the

district court’s broader approach. Even if we limited Anthony Y.’s prior

delinquency to the three adjudicated offenses, the additional conduct considered by

the district court was relevant to several of the other statutory factors, like “the



       3
         Under federal law, a prosecution of a juvenile technically results in an
adjudication of a status, not a criminal conviction. See United States v. Brian N.,
900 F.2d 218, 220 (10th Cir. 1990). We recognize this, and in using the term
“conviction,” “we simply mean a disposition of a charge in which there has been
an adjudication or admission of behavior which violates penal law.” United
States v. LWO, 160 F.3d 1179, 1182 n.4 (10th Cir. 1998).

                                          -8-
age and social background of the juvenile,” “the juvenile’s present intellectual

development and psychological maturity,” or “the nature of past treatment efforts

and the juvenile’s response to such efforts.” See Juvenile LWO, 160 F.3d at 1183.

“[T]he 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,” as long as it is relevant. Id. For example, Anthony Y.’s assault of his

counselor evidences his response to past treatment efforts. His violence towards

others, substance abuse, and conduct while in custody for this offense reflect his

level of psychological maturity. His truancy relates to his present intellectual

development as well as his response to past treatment efforts, since he signed

contracts with the Navajo family court and his parents in which he agreed to attend

school. Because the district court may balance each factor as it deems appropriate,

Leon, D.M., 132 F.3d at 589, and because it only considered information relevant

to the six statutory factors, we hold the district court did not err in considering

unadjudicated conduct to evaluate whether to transfer Anthony Y. to adult status.



C.    Social Background

      We next address Anthony Y.’s assertion that the district court erred in

finding his social background and his role in the murders weighed in favor of a

transfer to adult status. The court found that Anthony Y.’s family background was


                                           -9-
“unstable and unsupportive,” rec., vol. I, doc. 85 at 9, citing the testimony of

Anthony’s parents and school principal. It then weighed this factor in favor of

transfer, noting Dr. Roger Enfield’s opinion that juveniles sometimes become

recidivists because “they return to the same home environments in which they

originally became law breakers.” Id. Dr. Enfield, who opposed transfer, made this

statement in order to explain that treatment facilities re-directing juvenile

delinquents away from their home environments had significant success rates.

Because of the context of Dr. Enfield’s statement, Anthony Y. claims the court

“misappropriated” this testimony. Aplt. Br. at 34. We are not persuaded. While

the overall tenor of Dr. Enfield’s testimony disfavored transfer, the district court

could reasonably rely on that particular statement in finding that it would be more

difficult to rehabilitate a child with an unsupportive family than a child with a

stable, supportive one. Anthony Y. also argues that this finding could “cut both

ways,” Aplt. Br. at 33, because a juvenile from an unstable background might

flourish in a rehabilitative setting. That certainly is a possibility. Under our

deferential standard of review, however, we do not evaluate whether we would

have made a different finding in the first instance, nor do we reverse adequately

supported findings simply because the evidence is subject to multiple

interpretations. See Leon, D.M., 132 F.3d at 591. Rather, we decide whether the

district court abused its discretion. Id. at 590. Because sufficient evidence


                                          -10-
supported the district court’s findings and conclusions regarding Anthony Y.’s

social background, we hold that it acted within its discretion in concluding that

this factor weighed in favor of transfer to adult status.



D.    Role in the Offense

      Finally, Anthony argues the district court erred in finding he played a major

role in the offense because the court did not find he supplied the gun. Conflicting

evidence exists as to who supplied the gun, compare rec., vol. IV at 47 with rec.,

vol. IV at 60, 89-90, and Severiano B. took the gun home after the commission of

the crime. Nevertheless, sufficient evidence supports the district court’s finding

that Anthony went to Severiano’s home and enlisted him to “jack” someone,

supplied the malt liquor they drank, and then shot both victims without

provocation and without prompting or encouragement from Severiano. Given

Anthony Y.’s conduct, including killing two people, the court’s finding that

“Anthony played a major leadership role” in the offense, rec., vol. I, doc. 85 at 10,

is well-supported.



                                          III.

      Because the district court acted within its discretion, we AFFIRM its

decision to transfer Anthony Y. to adult status.


                                          -11-
