United States v. Smith

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-1807



                          UNITED STATES,



                            Appellee,



                                v.



             MICHAEL S. SMITH, A/K/A JUVENILE, MALE,



                      Defendant, Appellant.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



             [Hon. Gene Carter, U.S. District Judge]



                       ____________________



                              Before



                      Boudin, Circuit Judge,



                  Magill, Senior Circuit Judge,



                    and Lynch, Circuit Judge.



                      _____________________



    William Maselli, by appointment of the Court, with whom Law

Offices of William Maselli was on brief, for appellant.

    F. Mark Terison, Assistant United States Attorney, with whom

Jay P. McCloskey, United States Attorney, was on brief, for

appellee.


____________________



                           May 17,1999

                       ____________________         MAGILL, Senior Circuit Judge.  Michael S. Smith was over

seventeen years old on the night he and two others committed an

armed carjacking and two armed robberies.  A federal criminal

complaint was filed and, based on the United States Attorney's 18

U.S.C.  5032(3) certification that a "substantial Federal

interest" in the case justified federal jurisdiction, the district

court held that it had jurisdiction.  After the district court

granted the government's motion to transfer Smith for prosecution

as an adult, Smith entered a conditional guilty plea.  On appeal,

he challenges both the certification that a substantial federal

interest in this case warranted federal jurisdiction and the

district court's decision to transfer him for adult prosecution. 

We affirm and join five of our sister circuits in holding that

certification of a substantial federal interest is not reviewable.

                                I.

         During the evening of February 6, 1997, Michael Smith,

who was just eight months shy of his eighteenth birthday and

serving a term of probation for one of his previous four criminal

convictions, went on a crime spree with Robert Newell (Newell), an

adult, and Robert W. (Robert), a juvenile.  That night, they

committed two armed robberies and one armed carjacking.  They first

decided to rob an apartment.  After entering the apartment, Robert

menaced each of the occupants with a handgun while Smith held a

butcher knife against the throat of one of the occupants.  When

making their getaway from the apartment, Newell, Robert, and Smith

came across a woman unloading groceries from her car.  Robert

grabbed her, pointed the gun in her face, and demanded that she

give him the car keys.  After taking the woman's car, they realized

that they needed gasoline and stopped at a gasoline station.  While

Robert pumped gas, Smith entered the station, pointed the gun at

the cashier, and demanded that she give him some cigarettes.  After

taking the cigarettes and informing the cashier that they would not

pay for the gas, the three left the gas station.

         The gas station cashier then called the police and

reported the crime.  When officers spotted the stolen car, a chase

ensued.  Eventually, Robert lost control of the car and drove down

an embankment.  Although both Robert and Smith jumped out of the

car and attempted to flee, the police quickly apprehended them.

         After Smith's arrest, a federal criminal complaint was

filed, charging him in two counts.  The first count charged Smith

with conspiracy, in violation of 18 U.S.C.  371, to interfere with

commerce by means of robbery, in violation of 18 U.S.C.  1951, and

to take a motor vehicle by means of force, violence and

intimidation, and with the intent to cause death or serious bodily

harm, in violation of 18 U.S.C.  2119.  The second count charged

him with using and carrying a firearm in connection with the

conspiracy, in violation of 18 U.S.C.  924(c)(1).  Pursuant to 18

U.S.C.  5032(3), the United States Attorney certified that Smith

was a juvenile and that there was a "substantial Federal interest"

in the case and the offenses to warrant the exercise of federal

jurisdiction.  The United States Attorney also filed a motion to

transfer Smith for prosecution as an adult.

         Smith filed a motion to dismiss the case for lack of

federal jurisdiction, contending that there was not a substantial

federal interest.  The district court denied the motion, finding

that the United States Attorney's certification of a substantial

federal interest was unreviewable.

         Smith also objected to the government's transfer motion. 

After appointing a psychologist to examine Smith and conducting a

hearing, the district court granted the government's motion to

transfer.  In doing so, the court "place[d] primary importance on

the seriousness of the crimes committed by [Smith]."  United States

v. MS-Juvenile Male, No. 97-6-P-C, slip op. at 10 (D. Me. Feb. 4,

1998).

         Smith subsequently entered a conditional guilty plea.  On

appeal, he contends that (1) the district court erred in refusing

to review the United States Attorney's certification that a

substantial federal interest exists in this case and (2) the

district court abused its discretion in granting the government's

motion to transfer.

                               II.

         This case requires this court to delve into the procedure

set forth in 18 U.S.C.  5032 for trying a juvenile in federal

court and for transferring such a juvenile for prosecution as an

adult.  In relevant part,  5032 provides that a district court has

jurisdiction over a juvenile if "the Attorney General, after

investigation, certifies to the appropriate district court of the

United States that . . . (3) the offense charged is a crime of

violence that is a felony . . . 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.  Once federal

jurisdiction has attached, juvenile delinquency proceedings ensue

unless the court transfers the juvenile for prosecution as an

adult.  If the government files a motion for transfer on the ground

that the felony is a "crime of violence," the court must hold a

hearing, consider evidence of the six specific factors set forth in

 5032, and make "findings with regard to each factor . . . in the

record."  Id.  The district court then must weigh the factors and

determine whether a "transfer would be in the interest of justice." 

Id.; see also United States v. Hemmer, 729 F.2d 10, 17-18 (1st Cir.

1984).  If the court deems a transfer would be in the interest of

justice, the court may transfer the juvenile for prosecution as an

adult.

         A.  Certification

         Smith first contends that the district court erred in

concluding that it lacked jurisdiction to review the United States

Attorney's certification made pursuant to  5032(3) that a

"substantial Federal interest" warranted federal prosecution. 

Although this court has not yet determined whether a court has

jurisdiction to review a United States Attorney's certification

that there is a "substantial Federal interest" in a particular

case, five of the six other circuits addressing this issue have

held that a court may not review such a certification.  See United

States v. Juvenile Male J.A.J., 134 F.3d 905 (8th Cir.), cert.

denied, 118 S. Ct. 2388 (1998); In re Sealed Case, 131 F.3d 208

(D.C. Cir. 1997); United States v. Juvenile No. 1, 118 F.3d 298

(5th Cir.), cert. denied, 118 S. Ct. 457 (1997); Impounded, 117

F.3d 730 (3d Cir. 1997); United States v. I.D.P., 102 F.3d 507

(11th Cir. 1996).  Only the Fourth Circuit has permitted judicial

review of the existence of a substantial federal interest in a

 5032 certification.  See United States v. Juvenile Male #1, 86

F.3d 1314 (4th Cir. 1996).  

         We agree with the great majority of circuits that hold

that "the United States Attorney's certification of a substantial

federal interest is an unreviewable act of prosecutorial

discretion."  Juvenile Male J.A.J., 134 F.3d at 909.  As explained

more thoroughly by the Eighth Circuit in Juvenile Male J.A.J. and

the Third Circuit in Impounded, the statute's text and structure,

as well as separation of powers concerns, support our conclusion

that a federal court may not review a United States Attorney's

certification of a substantial federal interest.  See Juvenile

Male J.A.J., 134 F.3d at 906-09; Impounded, 117 F.3d at 733-37. 

         The text of  5032 does not specifically provide for

judicial review of a certification and fails to articulate any

standards for determining the existence of a substantial federal

interest.  Conversely,  5032 "expressly provides for judicial

review of orders transferring a juvenile for adult prosecution and

outlines standards for courts to apply, yet it is silent regarding

review of certification."  In re Sealed Case, 131 F.3d at 212. 

Like the Eighth Circuit, we believe that "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."  Juvenile

Male J.A.J., 134 F.3d at 908; see also Juvenile No. 1, 118 F.3d at

305 ("We find it difficult to conclude that Congress intended to

leave the courts to their own devices in determining whether a

'substantial Federal interest' exists 'to warrant the exercise of

Federal jurisdiction,' while specifying with such care the

considerations that must inform a court's evaluation of whether a

transfer would be 'in the interest of justice' in a particular

case.").  In addition, we note that "the exercise of prosecutorial

discretion, at the very core of the executive function, has long

been held presumptively unreviewable."  In re Sealed Case, 131 F.3d

at 214; see also Wayte v. United States, 470 U.S. 598, 607 (1985)

(noting that "the decision whether or not to prosecute, and what

charge to file or bring before a grand jury, generally rests

entirely in [the prosecutor's] discretion" and "[t]his broad

discretion rests largely on the recognition that the decision to

prosecute is particularly ill-suited to judicial review" (internal

quotation marks omitted)).  "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]."  I.D.P., 102 F.3d

at 511; see also Juvenile No. 1, 118 F.3d at 306 (agreeing that

"the government's authority to certify that a given case implicates

a substantial federal interest is akin to the government's

authority to decide which cases to prosecute" (internal quotation

marks omitted)).  Furthermore, we agree with the Fifth Circuit that

the "legislative history . . . also indicates congressional intent

to vest the federal prosecutor, not the court, with authority to

decide whether a substantial federal interest exists in a

particular case."  Id.; see generally id. at 306-07 (analyzing

legislative history); I.D.P., 102 F.3d at 512-13 (same).

         Based on the foregoing, we conclude that United States

Attorney's certification of a substantial federal interest

constitutes an unreviewable act of prosecutorial discretion. 

Accordingly, we affirm the district court's refusal to review the

United States Attorney's certification that a "substantial Federal

interest" warrants prosecuting Smith in federal court.  Because

Smith raises no other challenges to the certification, we find

that the district court properly exercised jurisdiction over Smith.         B.  Transfer

         Smith next contends that the district court erred in

concluding that transferring him for prosecution as an adult "would

be in the interest of justice."  18 U.S.C.  5032.  We disagree.

         So long as the district court makes findings as to the

six criteria outlined in  5032, we review the district court's

interest-of-justice determination for an abuse of discretion.  See

Hemmer, 729 F.2d at 17-18.  The district court's findings of fact

underlying the transfer decision are reviewed under the clearly

erroneous standard.  See, e.g., United States v. Parker, 956 F.2d

169, 171 (8th Cir. 1992); Fed. R. Civ. P. 52(a).

         Smith has undertaken a difficult burden in challenging

the transfer.  "[N]o court of appeals has ever found that a

district court abused its discretion by failing to balance properly

the six statutory factors."  United States v. Juvenile Male # 1, 47

F.3d 68, 71 (2d Cir. 1995) (citing cases).  This includes every

published case where "the juvenile was transferred to adult status

for the crime of armed robbery," United States v. Doe, 871 F.2d

1248, 1252 (5th Cir. 1989) (citing cases from three other

circuits), or for the crime of armed carjacking, see United States 

v. Wellington, 102 F.3d 499, 506 (11th Cir. 1996); United States v.

A.R., 38 F.3d 699, 705 (3d Cir. 1994). 

         As required by  5032, the district court considered and

made written findings as to each of the following six factors:  (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;" and

(6) "the availability of programs designed to treat the juvenile's

behavioral problems."  18 U.S.C.  5032.  The district court found

that (1) Smith joined a gang at age fourteen, fathered a child at

age fifteen, and committed the instant offenses at the age of

seventeen years and four months; (2) the instant offenses--two

armed robberies and one armed carjacking--"undoubtedly qualif[y]

among the most serious and violent acts this Court is presented

with each day," slip op. at 9-10; (3) Smith's previous criminal

record included four convictions over the course of five years and

seven additional criminal charges which had been dismissed; (4)

Smith's psychological maturity is somewhere between adolescence and

adulthood, and Smith has a broad range of psychological and

behavioral problems which reflect a Borderline Personality Disorder

and are complicated by Smith's history of alcohol and drug abuse;

(5) treating Smith as a juvenile in the past had proved to be

ineffectual (not only did Smith have an extensive criminal record,

but he was serving a term of probation at the time he committed the

instant offenses); and (6) it could not be sure that the federal

juvenile system had sufficient treatment programs available for

Smith.  On the basis of its findings, and relying primarily on the

egregiousness of the instant offenses, the court concluded that

transferring Smith for adult prosecution would be in the interest

of justice.

         Having carefully reviewed the record, we conclude that

the district court's findings as to each factor are not clearly

erroneous.  Although Smith challenges the manner in which the

district court weighed the various factors, we have previously

explained that "it is within the district court's reasoned

discretion as to what weight to assign each factor."  Hemmer, 729

F.2d at 17; see also Wellington, 102 F.3d at 506 (explaining that

a district court is "not required to weigh all statutory factors

equally" (internal quotation marks omitted)).  Courts have

unanimously held that a district court does not abuse its

discretion in placing primary emphasis on the gravity of the

juvenile's offense.  See Hemmer, 729 F.2d at 18 ("In light of the

gravity of the crime involved [(armed robbery)], weighed against

the other five section 5032 factors, we cannot say that the

district court struck the balance improperly."); see also Juvenile

No. 1, 118 F.3d at 307 (explaining that "[t]he seriousness of the

offense, for instance, can be given more weight than other factors"

(internal quotation marks omitted)); Wellington, 102 F.3d at 506

(holding that "a district court is entitled to give more weight to

the seriousness of the offense than to other factors"); A.R., 38

F.3d at 705 (holding that the district court did not err by placing

strong reliance on juvenile's crime--armed carjacking); Doe, 871

F.2d at 1255 (also holding that the district court did not err in

placing strong emphasis on juvenile's crime--armed robbery). 

Moreover, the proximity of a juvenile's age to age eighteen is

another important factor for the court's consideration.  See

Wellington, 102 F.3d at 506-07 & n.7.  Smith was only eight months

shy of eighteen at the time he committed these three armed criminal

offenses.  In view of the gravity of the instant offenses, Smith's

age when he committed those offenses, and Smith's extensive

criminal record, we find that the district court did not abuse its

discretion in concluding that transferring Smith for adult

prosecution would be in the interest of justice.

                               III.

         For the foregoing reasons, we affirm the district court.