United States v. G.T.W., a Male Juvenile, United States of America v. T.L.F., a Male Juvenile

992 F.2d 198

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 4, 1993
• Docket: 92-3256, 92-3257
• Status: Published

Opinions

JOHN R. GIBSON, Circuit Judge.

Before us are the appeals of two juveniles from the district court’s¹ order under 18 U.S.C. § 5032 (1988 and Supp. Ill 1991) transferring them to adult status for criminal prosecution for armed bank robbery. They argue that the district judge abused her discretion in entering the order, and that they should not be subjected to adult criminal prosecution. We affirm.

T.L.F. and G.T.W., two seventeen year old boys, were charged with armed bank robbery in violation of 18 U.S.C. §§ 2113(a), 2113(d), and 924(c) (1988 & Supp. Ill 1991). The United States Attorney (on behalf of the Attorney General) certified to the district court that facts warranting jurisdiction in the district court existed and moved to transfer the cases under 18 U.S.C. § 5032 for adult criminal prosecution.

Under the statute, the district court must hold a hearing and determine whether transfer for prosecution as an adult would be “in the interest of justice”. The court must consider and make findings regarding each of the following factors:

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.

18 U.S.C. § 5032.

The district court made the required findings and concluded that the evidence weighed in favor of prosecuting both T.L.F. and G.T.W. as adults. United States v. T.L.F., No. 92-M-4024G) (E.D.Ark: Sept. 25, 1992). The court summarized the boys’ records as showing a long pattern of “lack of success ... in conforming their behavior to the requirements of the law.” Slip op. at 12.

The court gave great weight to the potential deadliness of their behavior during the robbery:

What especially concerns this Court, however, is the cold calculation with which T.L.F. and G.T.W. carried out their crime. Here was a potentially deadly assault of bank tellers and customers with G.T.W. placing a revolver to the head of a bank customer telling him he would blow his head off, and T.L.F. making similar threats and discharging a 9 mm semi-automatic weapon both inside and outside the bank. Considering the gravity of the crime involved, weighed against the other five factors, the Court finds that transferring both T.L.F. and G.T.W. to adult status “would be' in the interest of- justice.”

Slip op. at 13 (citations omitted).

On appeal G.T.W. argues that the district court abused its discretion by failing to adequately consider his rehabilitation potential. G.T.W. argues that a close analysis of his participation in past rehabilitation programs demonstrates that he was never given any treatment or rehabilitation; that the psychologists who tested him “seem to indicate that G.T.W. would be a potential candidate for rehabilitation”; and that testimony from a representative of the Federal Bureau of Prisons established that a program was available for his rehabilitation.

As we have held in United States v. Parker, 956 F.2d 169, 171 (8th Cir.1992), in reviewing a section 5032 ruling, we review findings of fact under the clearly erroneous standard and the ultimate decision to prosecute as an adult under the abuse of discretion standard.

The district court did not fail to adequately consider the possibility of rehabilitation, but rather concluded that G.T.W. was not a “promising candidate” for rehabilitation, since G.T.W. had failed to follow court orders in connection with earlier truancy proceedings and a firearms offense. Slip op. at 12-13. The court finding is warranted by the record, which shows G.T.W. has been stubbornly uncooperative with the authorities supervising him in connection with his earlier offenses. The court did not abuse its discretion in concluding G.T.W. should be transferred for criminal prosecution.

T.L.F. argues that, while he was seventeen years of age, he had the intelligence level- of someone six years and eight-months old, that the finding that the offense was done with cold calculation was clearly erroneous, and that the earlier five offenses in his juvenile record were petty thefts, not serious crimes.² He further argues that he had participated with progress through some programs and that there were rehabilitation programs available for him.

Again, the district court did not fail to consider the evidence T.L.F. relies on, but concluded that, notwithstanding that evidence, T.L.F.’s continued pattern of delinquency weighed against treating him as a juvenile. Slip op. at 12-13. The court noted that nothing in the record indicated that T.L.F. lacks the ability, to understand the consequences of his actions, id., and this appears to be correct. There was ample evidence (though not specifically cited by the district court) that T.L.F.’s crime was calculated, since the.boys acquired their gun.two days before the robbery and mired their getaway car in the mud while “casing” the bank earlier on the day of the robbery. On this record, the district court’s decision was well within its discretion.

We affirm the district court’s order.

1 . The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

2 . Actually, one was a weapons offense. There was evidence that T.L.F. committed two burgla-ríes not included in his juvenile record.