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compiling published cases where transfer based on the violent nature of the offense was warranted
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Criminal No. 04-159(PG).
April 28, 2005
Nathan Schulte, U.S., San Juan, Puerto Rico, for Plaintiff or Petitioner.
Hector Guzman, Assistant Federal Public Defender, San Juan, Puerto Rico, for Defendant or Respondent.
MAGISTRATE-JUDGE'S REPORT AND RECOMMENDATION RE: JUVENILE'S TRANSFER TO ADULT STATUS
A.C.P., a male juvenile, was charged in a two count information (Docket No. 1) with violating 18 U.S.C. §§ 2113(b) and (d), 371 and 924(c)(1)(A)(iii). Specifically, the government alleges that A.C.P. participated in an ATM robbery wherein he shot a security guard. Presently before the Court's consideration is the government's motion to transfer A.C.P. to adult status (Docket No. 12).
Procedural Background and Juvenile Speedy Trial Act Tolling
At the outset, it is incumbent upon the Court to explain why the matter of transferring A.C.P. to adult status has taken one year to be decided. In synthesis, and as will be fully explained subsequently, A.C.P., upon his arrest, and up to the present, successfully cooperated with federal authorities. To permit him to obtain the best possible outcome, either as a minor or adult, A.C.P., assisted by counsel, requested throughout this period more than ten (10) continuances and waived his right to a speedy trial. The ensuing tolling of A.C.P.'s juvenile Speedy Trial Act clock, is thus summarized below.
The government filed the information in this case on April 8, 2004. On April 13, 2004, the government, pursuant to 18 U.S.C. § 5032, moved to transfer A.C.P. to adult status (Docket No. 12). On April 16, 2004, the matter was then referred to the undersigned Magistrate Judge for a hearing and subsequent report and recommendation (Docket No. 17).
On April 19, 2004, A.C.P., represented by Assistant Federal Public Defender Héctor Guzmán, appeared before the undersigned for the scheduled transfer hearing (Docket Nos. 21 and 22). On said occassion, A.C.P., pursuant to 18 U.S.C. § 5036, waived his right to a speedy trial (Docket Nos. 22 and 23). The hearing was reset for May 14, 2004 (Docket No. 22). On April 23, 2004, the Court issued a Speedy Trial Act Order containing findings to the effect that the continuance was warranted under the interest of justice (Docket No. 24).
The Court notes that A.F.P.D. Guzmán has been A.C.P.'s counsel at all stages of this case.
On May 12, 2004, A.C.P. again requested a continuance (Docket No. 26). The Court granted the same and reset the transfer hearing to June 2, 2004, again making Speedy Trial Act findings pursuant to 18 U.S.C. § 5036 (Docket No. 27). On May 24, 2004, the parties filed a further joint motion for continuance (Docket No. 29). The Court granted the same and reset the hearing to June 16, 2004, once again making Speedy Trial Act findings (Docket No. 32). On June 10, 2004, A.C.P. filed another motion to continue (Docket No. 34). The Court granted the same and reset the hearing to July 16, 2004, again making Speedy Trial Act findings (Docket No. 35). On July 14, 2004 the undersigned held a status conference (Docket No. 43). During the same counsel jointly requested that the hearing again be postponed. The Court reset the same to August 11, 2004, and made corresponding Speedy Trial Act findings (Docket No. 43).
On August 11, 2004, the Court held the transfer hearing (Docket Nos. 44 and 56 (transcript)). The Speedy Trial Act clock was further tolled until August 24, 2004, to allow the parties to file memoranda (Docket Nos. 44, 45 and 46). On August 16, 2004, A.C.P. requested a further continuance to submit his memorandum so as to permit him to continue cooperating with the government, and in turn, enhance his opportunities during plea negotiations (Docket No. 48). The undersigned granted the same until October 18, 2004, and made Speedy Trial Act findings, which were noted, in turn, by Judge Pérez Giménez (Docket No. 49).
On August 30, 2004, the Court ordered that the parties' memoranda be filed on or before October 18, 2004, and informed that it would reopen the hearing on October 20, 2004, so that A.C.P.'s juvenile records be presented into evidence (Docket No. 53). On October 12, 2004, A.C.P. requested a status conference and further tolling of the Speedy Trial Act clock (Docket No. 58). The Court granted the request (Docket No. 59). On October 26, 2004, A.C.P. requested a further continuance (Docket No. 61). The Court granted the parties twenty days as of said date to file simultaneous memoranda, and excluded said time from Speedy Trial Act calculations (Docket No. 62). On November 17, 2004, A.C.P. requested a further continuance of thirty days to file his brief (Docket No. 64). The same was granted and the Speedy Trial Act clock tolled (Docket No. 65). Further status conferences were held on December 21, 2004 and January 20, 2005 (Docket Nos. 68, 69 and 70). At the latter hearing, the Court granted A.C.P. until February 14, 2005 to supplement his psychological evaluation, and until March 14, 2005 to file his memorandum (Docket No. 70). The Speedy Trial Act clock was again tolled on both occasions (Docket Nos. 68 and 70).
On March 7, 2005, A.C.P. requested that his transfer hearing be reopened so as to allow him to supplement the evidence introduced at the initial hearing one year before (Docket No. 82). On March 16, 2005, A.C.P. filed a further motion informing he was waiving his right to a speedy trial (Docket No. 88). The same was granted (Docket No. 90). On March 28, 2005, A.C.P. requested another continuance (Docket No. 92).
The transfer hearing was resumed on April 11, 2005 (Docket No. 95 (transcript)). The parties were then given a deadline of April 25, 2005, to supplement their memoranda. The parties having done so (Docket Nos. 97 and 101), the Court will proceed to rule on the merits of the transfer issue.
Legal Analysis
Applicable Law and Jurisprudence
The purpose of the 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. Male Juvenile E.L.C., 396 F.3d 458, 461 (1st Cir. 2005); United States v. Female Juvenile A.F.S., 377 F.3d 27, 32-33 (1st Cir. 2004). The court must balance these important interests against "the need to protect the public from violent and dangerous individuals." E.L.C., supra. There is a presumption in favor of juvenile adjudication and, therefore, the burden is on the government to establish that transfer to adult status is warranted. Id.; A.F.S., supra at 32.
A juvenile is to be transferred to adult status if the Court, pursuant to 18 U.S.C. § 5032, determines it is "in the interest of justice" to do so. E.L.C., supra at 461. In making such determination the Court must consider six factors in the statute: (i) the age and social background of the minor; (ii) the nature of the alleged offense; (iii) the extent and nature of the minor's prior delinquency record; (iv) the minor's present intellectual development and psychological maturity; (v) the nature of past treatment efforts and the minor's response thereto; and, (vi) the availability of programs designed to treat the minor's behavioral problems. Id.. The Court must make findings with respect to each factor, and may balance the factors as it deems appropriate under the particular circumstances. Id.. The statute's "requirement that mentation be given to all six named transfer factors, does not preclude the district court from considering other unnamed factors that are relevant to the determination of whether the juvenile's transfer would be in the interest of justice". Id. at 462.
In cases such as the present, involving armed robbery or carjacking, the trend in published case law is to favor the transfer based on the violent nature of the offense itself. "No court of appeals has ever found that a district court abused its discretion by failing to balance properly the six statutory factors. This includes every published case where the juvenile was transferred to adult status for the crime of armed robbery, or for the crime of armed carjacking." United States v. Smith, 178 F.3d 22, 26 (1st Cir.), cert. denied, 528 U.S. 910 (1999) (internal citations omitted). The undersigned's research reveals that in the following cases the minor was transferred to adult status in instances involving the offense of armed carjacking or robbery: United States v. Male Juvenile E.L.C., 396 F.3d 458 (1st Cir. 2005) (armed robbery); United States v. A.R., 203 F.3d 955 (6th Cir. 2000) (armed robbery);United States v. Smith, 178 F.3d 22 (1st Cir. 1999) (armed carjacking and robbery); United States v. I.D.P., 102 F.3d 507 (11th Cir. 1996), cert. denied, 522 U.S. 910 (1997) (armed carjacking); United States v. Wellington, 102 F.3d 499 (8th Cir. 1996) (armed carjacking); United States v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir. 1996) (armed carjacking); United States v. A.R., 38 F.3d 699 (3rd Cir. 1994) (armed carjacking); United States v. G.T.W., 992 F.2d 198 (8th Cir. 1993) (armed robbery); United States v. Doe, 871 F.2d 1248 (5th Cir.), cert. denied, 493 U.S. 917 (1989) (armed robbery); United States v. Porter, 831 F.2d 760 (8th Cir. 1987), cert. denied, 484 U.S. 1069 (1988) (armed robbery);United States v. Hemmer, 729 F.2d 10 (1st Cir.), cert. denied, 467 U.S. 1218 (1984) (armed robbery); United States v. Hayes, 590 F.2d 309 (9th Cir. 1979) (armed robbery); United States v. R.I.M.A., 963 F. Supp. 1264 (D.P.R. 1997) (armed robbery); United States v. H.M.M.S., 838 F. Supp. 30 (D.P.R. 1993) (armed carjacking); United States v. J.D., 525 F. Supp. 107 (S.D.N.Y. 1981) (armed robbery). In the following cases, however, the court denied the transfer to adult status: United States v.Juvenile K.J.C., 976 F. Supp 1219 (N.D. Iowa 1997) (armed robbery); In re T.W., a Juvenile and an Indian, 652 F. Supp. 1440 (E.D. Wisc. 1987) (armed robbery resulting in death).
A second minor in this case, however, was transferred to adult status.
Aside from the violent and egregious nature of the offense of armed carjacking or robbery, courts have also considered several other additional factors for purposes of ordering the transfer of the minor to adult status. In E.L.C., 396 F.3d at 462-463, shortly after the robbery and murder at issue, the minor committed an identical crime. In Smith, 178 F.3d at 27, the minor had four prior juvenile adjudications over the course of five years, and seven additional charges had been dismissed. The minor was also on probation when the offense at issue had occurred. Past treatment had been ineffective, and the federal juvenile system was unlikely to provide further treatment with positive results. In Wellington, 102 F.3d at 506, the minor was only nine days shy of his eighteenth birthday. In Hayes, 590 F.2d at 311 n. 3, the minor at the time of the offense was a third class petty Navy officer, whose intellectual development was well above average, and had been selected for various specialized Navy programs. In Porter, 831 F.2d at 767, the minor had a history of assaultive behavior, had committed property damage and stealing offenses while in foster homes and residential treatment centers. Prior treatment efforts had been unsuccessful, hence he was likely to progress in the federal juvenile system. In Doe, 871 F.2d at 1253-1254, the minor was four months short of his eighteenth birthday. Juvenile facilities did not provide sufficient physical security to prevent his escape. He had an extensive prior record, and had unsuccessfully undergone treatment and rehabilitative efforts. InJuvenile Male # 1, 86 F.3d at 1321, the minor was convicted previously and was on probation. Several outstanding arrest warrants existed. With regards to the carjacking, he felt that he did not do anything wrong as he was weak minded. Also prior rehabilitative efforts were unsuccessful, and he challenged his peers and encouraged them to engage in violence. In I.D.P., 102 F.3d at 515, the minor had various juvenile adjudications and had violated his probation on more than one occasion. He also stood charged with three burglaries while on probation. An expert also concluded that his rehabilitation was unrealistic. In A.R., 203 F.3d at 959, the minor had a prior delinquency record. Past treatment efforts to rehabilitate him had failed, and any progress would be long-term, thus disqualifying the juvenile system from providing the same. In R.I.M.A., 963 F. Supp. at 1270 and 1272, the minor had an active and leading role in the bank robbery. Two days prior he also committed a carjacking. The vehicle was used for the bank robbery. In J.D., 525 F. Supp. at 107-108, the minor committed the robbery twenty five days prior to his eighteenth birthday. He had a record of failing to respond to supervision, and had failed to voluntarily participate in any outreach programs. Finally in H.M.M.S., 838 F. Supp. at 32 n. 1, an opinion by the District Court Judge to whom this case is assigned, the minor admitted to an FBI agent that he had participated in five prior carjackings.
On the other hand, the courts that have denied the transfer to adult status in such cases have looked to certain mitigating factors. In Juvenile K.J.C., 976 F. Supp. at 1232, the Court concluded the following:
[U]pon balancing the six § 5032 factors, the interests of justice do not warrant transferring K.J.C. for adult prosecution. The court finds that particular weight must be given to three of the § 5032 factors in this case. First, the court finds it significant that defendant has no prior contact with the criminal justice system. On the theory that the special treatment given juveniles reflects, at least in part, rehabilitative goals, a lack of meaningful juvenile criminal record suggests that K.J.C. may benefit from juvenile treatment. The second factor the court finds particularly significant here is the absence of past treatment efforts. Because K.J.C. has no history of treatment and the possibility of rehabilitation through treatment efforts remains viable possibility for him, this factor weighs against transfer in this case. A third factor, the availability of treatment programs, also weighs against transferring K.J.C. for adult prosecution. In addition the court views a fourth factor, K.J.C.'s intellectual development and psychological maturity, to weigh slightly against transfer. The court concludes that K.J.C.'s intelligence and maturity does not stand in the way of his rehabilitation, but rather finds that K.J.C.'s prospects for rehabilitation are promising if treated as a juvenile based on his ability to take direction and his conductiveness to supervision. The court further concludes that one factor is neutral in it analysis: K.J.C.'s age and social background. The only factor that weighs in favor of transferring K.J.C. at all is the nature of the offenses alleged. The Court finds that this factor, when balanced against the other factors, does not indicate that transfer is appropriate. Although the offenses alleged, in particular the sale of LSD near a school, are quite serious, the court notes that K.J.C. does not appear to have been involved in the bank robbery's planning nor did he take a leadership role in its commission, but instead was only a minimal participant in that offense. K.J.C.'s drug offenses do not alter the analysis that K.J.C. can best be described as a low-level dealer, and some of his sales might well be characterized as accommodation sales. Additionally, K.J.C. was not armed and did not commit an act of violence in the commission of those offenses particularly heinous or stiking. For these reasons, the court does not believe that the nature of the offenses alleged outweigh the other factors and require K.J.C.'s transfer in this case. . . . The court concludes that K.J.C. is a promising prospect for rehabilitation if treated as a juvenile.
In In re T.W., 652 F. Supp. at 1443 and 1445-1446, the minor robbed and beat up the victim, who at the time was extremely intoxicated and thus was unable to defend himself. An autopsy revealed that the victim suffered repeated kicks and blows resulting in contusions to various areas of his body. A short time after the crime, the minor returned to the scene and passed by the fallen victim, with indifference to his plight. Following the assault, the minor stole a fire truck and engaged in a crime spree resulting in property damage and culminating in a high-speed chase. Upon applying the Section 5032 factors the Court concluded:
[We] cannot find that exposing the juvenile to the juvenile justice rehabilitation system will prove to be a futile gesture. The court bases this finding on several relevant issues. First, as stated above, no past efforts have been made to treat T.W.'s problems. Second, apparently responsible persons in positions of authority who have had contact with T.W. testified at the hearing that the juvenile has previously exhibited various redeeming qualities, including an affable personality and a caring attitude towards others. Third, as described above, there exist juvenile facilities available to treat T.W.'s intellectual shortcomings and behavioral disorders. Finally, the juvenile's home environment was quite unstable, indeed tumultuous, and his withdrawal from this mileau hopefully will benefit and rectify his development.Findings of Fact in the Case at Bar
This case presents the Court with an exceptionally unique set of circumstances. The disposition of the transfer issue in this case was stayed for a one year period, upon motion of the parties and with Court approval in the interest of justice. During this time, A.C.P. has provided substantial cooperation to federal authorities, resulting in multiple convictions. Also during this time, A.C.P. has been detained in a juvenile institution and has greatly benefitted from its rehabilitative programs. In addition, A.C.P. has undergone two neuropsychological evaluations, one approximately a month following his arrest, and the second, a follow-up one, nine months later. In most, if not all, federal juvenile transfer cases, a court will not have evidence such as this before it when the transfer decision is made within a relatively short period after the information is filed. Once the transfer is effectuated, the court does not continue to look at mitigating factors which later may later come to exist, and, which, had they been known at the outset, perhaps would have prompted the opposite disposition. Pursuant to E.L.C., 396 F.3d at 462, the Court may, and will, consider here these factors in determining whether A.C.P.'s transfer is in the interest of justice.
Both evaluations were performed by Dr. María T. Margarida Juliá, who, upon agreement of both parties, was appointed by the Court to evaluate A.C.P.
Based on the evidence of record, below are the Court's findings as to the six criteria that must be addressed pursuant to Section 5032, as well as to additional criteria that will be considered pursuant to E.L.C., supra.
A. Nature of the Alleged Offense and Similarity of Subsequent Activity
A.C.P. accepts that on January 19, 2004, along with other individuals, he attempted to steal money from an ATM machine. In the process, two guards were tied up at gun point and driven away to the machine. A.C.P. shot a third guard who appeared at the scene three times while attempting to flee. The shooting victim remained unconscious in the hospital for nearly one month. See Affidavit of F.B.I. Special Agent Diego Tobón (attached to Docket No. 86) at ¶¶ 7, 8, 9, 10, 11, 12, 14, 15, 16. See also Transcript of April 11, 2005 Reopened Transfer Hearing (Docket 95) at page 66.
On April 4, 2004, just three days prior to his arrest, A.C.P., along with his cohorts, again tried (unsuccessfully) to steal money from another ATM machine. See id. at ¶¶ 19, 20, 21.See also Transcript, id.. There were no victims on this occasion. Prior to his arrest, he was also involved in low scale drug sales for the same individuals with whom he participated in the ATM heists. See Transcript of April 11 Hearing (Docket No. 95) at page 73 line 22 to page 75 line 16. A.C.P. became involved with these persons in September or October of 2003.
Certainly, A.C.P. has engaged in a violent offense. Had he not been arrested, he would have likely continued his delinquent spree. His acts of pointing a firearm at the head of the tied-up guards, as well as shooting the fleeing guard thrice constitute "calculated brutality" which in similar circumstances far outweighs any evidence in support of maintaining the juvenile status quo. See, e.g., H.M.M.S., 838 F. Supp. at 32 (Pérez-Giménez, J.). The evidence does show, however, that at the time of his arrest, A.C.P. was not an organizer, leader or planner among his co-perpetrators. Rather, he became involved in this nefarious line of work, and was being slowly groomed up the criminal ladder. See Transcript of August 11, 2004 Transfer Hearing at page 41 lines 1-24.
B. Juvenile's Prior Delinquency Record
A.C.P. does not have a formal juvenile record. His record from the State of Illinois indicates that he was twice arrested for possession of marijuana, first on May 7, 2003, and again on August 17, 2003. See United States' Informative Motion Filing Juvenile Court Records (Docket No. 51). There was no actual disposition of these cases since A.C.P.'s relatives with whom he was living sent him back to Puerto Rico because he kept getting into so much trouble. Id..
At the April 11, 2005 hearing, A.C.P. admitted that, while living in Illinois, he was arrested with some bags of marijuana on his person. See Transcript (Docket No. 95) at page 91 at lines 9-13. He also admitted being shot in the leg by a jealous boyfriend of a girl who liked him. Id. at page 90 line 10 to page 91 line 20. He further candidly admitted that had he not been involved with marijuana this may not have occurred. Id. at lines 18-20.
C. A.C.P.'s Age and Social Background
A.C.P. was born on August 31, 1986. At the time of the offense at issue he was almost seventeen and a half years old. His parents divorced when he was about four years old. He then lived with his mother and siblings. He did, however, maintain contact with both parents until the time of the offense. He completed the ninth grade, but failed the tenth grade. At the time he was sent to live in Chicago with his aunt and her husband until September, 2003, when he was sent back to due to his problems, which resulted in his expulsion from school.
At the time of his arrest, A.C.P. was living with his mother and siblings in a partially constructed home which was in deplorable conditions. See defendant's Exhibits A-M (photos submitted at the August 11, 2004 hearing).
D. The Nature of Past and Present Treatment Efforts and the Juvenile's Response to the Same
Prior to his arrest for the present offense A.C.P. never received any professional or institutional treatment. As mentioned earlier, however, he has since the time of his arrest received such treatment at the Salinas Detention Center. Pursuant to E.L.C., 396 F.3d at 462, the Court will consider the same, as well as A.C.P.'s response thereto.
According to Ivelisse Gómez, one of his social workers, A.C.P. has evolved into a positive leader in the module where he lives, and in the correctional facility in general, as well as a good role model for new youngsters coming into the unit. See Neuropsychological Evaluation Report of Dr. María T. Margarida Juliá dated March 1, 2005 (Docket No. 83) at page 4. He has been able to consistently demonstrate significant improvement in his self control, cooperation, maturity, introspection about his past mistakes and determined interest in self improvement.Id.. He participates in daily school sessions from 8:00 a.m. to 2:00 p.m. and his teacher reports excellent progress. He recently took the college board and is planning to take a high school equivalency test. Id.. He participates positively in all aspects of his correctional experience such as groups, sports, learning, religious education, and educational training by mental health and addiction counselors. Id.. He has also started to write, on his own initiative, a series of self-reflections about his experiences, which he plans to disseminate to other youths so as to help them avoid getting into a predicament similar to his own. Id..
See also Ms. Gómez's testimony at the August 11, 2004 transfer hearing (Docket No. 56) at pages 32 et. seq.
According to A.C.P.'s substance abuse counselor, Ms. Melissa Flores, and social worker in charge of his mental health individualized plan, Ms. Lucy Colón, the minor has "consistently been meeting his treatment objectives and has shown good progress with respect to improved ability to make decisions, make appropriate judgments, improved impulse control, meet educational and drug rehabilitation goals, improved emotional well being and adjustment, as well as improved behavioral and cognitive controls." Id..
Ms. Gómez also has noted that A.C.P. is now more extroverted, open and able to communicate his feelings appropriately and seeks help when there are difficulties with other inmates at the institution. She indicated there have been instances in which other youngsters trying to compete for power within the unit have physically assaulted A.C.P., and he has not responded with aggression, demonstrating outstanding self control. Id. at page 5. The aggressions by other juveniles towards A.C.P. have also been prompted by the fact that the youthful offenders are aware he is cooperating with the government.
Ms. Gómez sees in A.C.P. great rehabilitation possibiliites, particularly with good support, supervision and follow-up. Id.. This professional conclusion is consistent with Dr. Margarida Juliá's own observation: " I noticed a difference when I evaluated him the first time and the second time, he was hardly able to sort of organize his though as opposed to the second time that I saw him where he was able to have insight and writing. . . . and his sense of regret, evaluation and self approach and evaluation about what he has had and what he hasn't had also and how that has [played] a role and a lot of interest in helping youth like him stay away from problems. . . ." See Transcript of April 11, 2005 Transfer Hearing (Docket No. 95) at page 27 line 16 to page 28 line 22. In her March 1, 2005 report (Docket No. 83) at page 9, Dr. Margarida Juliá concurs with Ms. Gómez in that A.C.P. " has great possibilities of rehabilitation particularly if he has good support, supervision and follow up since he has demonstrated excellent progress and ability to use the structure and help he has received at the correctional facility."
Compare with Dr. Margarida Juliá's initial evaluation: " the results of the personality evaluation revealed significant psychological immaturity, feelings of low self worth, passivity in his interpersonal relations and a tendency to be dependent on others due to lack of self confidence. These traits place him at risk of being easily dominated and led by others. Thus, his delinquent behavior may probably be a result of passively following more dominant peers or other individuals in conjunction to his impaired judgment as a result of drug use. His clinical profile indicates that he is depressed, feels much guilt and remorse for his transgressions. On the other hand, [A.C.P.] endorsed content items indicative of a desire to succeed in life and a willingness to learn form his mistakes." See Docket No. 31 at page 13.
The Court also notes that during his detention at the Salinas facility A.C.P. has been granted numerous privileges based on his outstanding behavior. See Neuropsychological Evaluation by Dr. Margarida Julia of March 1, 2005 (Docket No. 83) at page 9. As such, the Court has authorized him leave the institution to attend a sporting event and museum trip. See Docket Nos. 80 and 40.
This Section 5032 factor weighs heavily in favor of retaining A.C.P. as a juvenile. In regards to his possible rehabilitation as a youth — a Congressional purpose behind the federal juvenile delinquency process — the Court affords great deference to the uncontested opinions of his social workers and Dr. Margarida Juliá. Such persons have the capacity and expertise in their respective professional fields to make such prognoses. See, e.g., Howard v. Commissioner of Social Security, 276 F.3d 235, 240 (6th Cir. 2002) (holding that "[p]rovided that they are based on sufficient medical data, the medical opinions and diagnoses of treating physicians are generally afforded substantial deference, and if the opinions are uncontradicted, complete deference"). In sum, the Court has before it a minor who has responded to the juvenile justice system and has positively demonstrated an extraordinary rehabilitative potential during the past year. If he is to remain in the juvenile system until his twenty first birthday, that is approximately another three years, the Court is of the opinion, based on the evidence before it, that A.C.P.'s rehabilitation will continue to have positive effects.
E. The Availability of Programs Designed to Treat A.C.P.'s Behavioral Problems
As discussed in the preceding section, there are available programs in which A.C.P. can receive treatment for his behavioral problems. More so, upon his release, his father, who has constantly supported him throughout the present proceedings, and was present at all in-court proceedings, has taken upon himself to help his son inasmuch as he may need at the time. See Transcript of August 11, 2004 hearing (Docket No. 56) at page 91 line 17 to 92 line 5; Transcript of April 11, 2005 hearing (Docket No. 95) at page 52 line 15 to page 56 line 7. Dr. Margarida Juliá is of the opinion that " [A.C.P.'s] father is a very important figure in his life, he has been a very consistent figure in his life. He did not live with him before and saw him regularly but did not have the day to day, and I think that figure will be a key guideline for [A.C.P.] to keep track of where he wants to go in life. His father has been a positive model, as from information from [A.C.P.], about how he means to work and be a successful member of society. He admires him very much and I think his father is very committed and a loving person and will be able to do whatever it takes to keep him in track." See Transcript of August 11, 2005 hearing (Docket No. 95) at page 48 lines 6-17.
The Court, having observed the father's demeanor and heard his testimony, considers him to be sincere in his efforts to aid A.C.P. as a caring father.
This Section 5032 factor also weighs heavily in favor of retaining A.C.P. as a juvenile.
F. A.C.P.'s Present Intellectual Development and Psychological Maturity
At the time of his initial neuropsychological evaluation by Dr. Margarida Juliá on May 4, 2004 — one month following his arrest — intelligence testing revealed that A.C.P. had a borderline intellectual functioning level when compared to individuals his age (at the time seventeen and a half). See Docket No. 31 at pages 6-7. His performance on standard intelligence tests as well as in more specialized neuropsychological tests tapping verbal fluency and verbal communication, expression and abstraction revealed borderline to low average skills. Id. at 9. There was also evidence of impairment in the comprehension of social norms and social judgment. Id.. Test findings also indicated that A.C.P.'s cognitive flexibility and ability to change sets, plan and organize problem solving strategies was severely impaired.Id.. Both long and short term memory and learning were moderately to severely impaired. Id. at 10. A.C.P. also demonstrated a consistent pattern of brain dysfunction associated with the ability to learn new verbal information. Id.. His clinical profile indicated that he suffers from depression and that his delinquent behavior may probably be the result of passively following more dominant peers or other individuals.Id. at 11. The possibility of malingering was ruled out by Dr. Margarida Juliá. Id. at 13.
In her second evaluation dated March 1, 2005 (Docket No. 83) at pages 6, 7 and 9, Dr. Margarida Juliá noted an improvement in most of A.C.P.'s neuropsychological areas, including his maturity, remorse, recognition of his strengths and frailties, and increased motivation for therapy. This has been the result of his rehabilitation at the Salinas Juvenile Institution. See id. at 9. See also testimony of Dr. Margarida Juliá at transfer hearing on April 11, 2005 (Docket No. 95) at pages 7 et seq..
The Court also takes into consideration the fact that A.C.P. has accepted responsibility for his actions, as well as demonstrated remorse since the outset. This is evidenced by his cooperation with law enforcement authorities following his arrest. More important, he has consistently expressed to his counselors and to Dr. Margarida Juliá that he feels repented for his terrible actions. See testimony of Ivelisse Gómez at transfer hearing on August 11, 2004 (Docket No 56 at page 39 lines 2-5); May 13, 2004 Neuropsychological Evaluation by Dr. Margarida Juliá (Docket No. 31) at pages 4 and 5; March 1, 2005 Neuropsychological Evaluation by Dr. Margarida Juliá (Docket No 83) at pages 4 and 9. At the April 11, 2005 hearing A.C.P. testified, again accepting his remorse for his actions and showing a positive outlook towards life: "First of all I feel bad because I had no business shooting anybody and I am no one to take somebody's life. . . . I have learned to appreciate, value life, because when I was out in the streets I would do anything, but now I have learned to think before acting or doing something and I have developed things that I didn't have in my mind before, things that I can do. . . . First of all I didn't believe in God and I didn't know that God can help people, but I have learned now that he does help people. . . ." See Transcript of April 11 transfer hearing (Docket No. 95) at pages 83-84.
The Court finds, upon observing his demeanor, A.C.P.'s testimony to be sincere and credible.
This Section 5032 factor also weighs heavily in favor of retaining A.C.P. as a juvenile. The Court has before it a juvenile who has quite positively responded to institutional treatment and has matured during the past year, recognizing his past mistakes.
G. Other Factors — A.C.P.'s Substantial Cooperation
It is uncontested that A.C.P. has provided excellent cooperation to the government amounting to substantial assistance. See Proffer by AUSA Nathan J. Schulte at transfer hearing of April 11, 2005 (Docket No. 95) at pages 66 et seq.. Because of his assistance, the government was able to successfully investigate, indict and prosecute various dangerous adult individuals with whom A.C.P. had associated with upon his return from Chicago in late 2003. A.C.P. did not participate with these individuals in events others than those described previously. However, he was able to provide accurate information about their dealings. Without such information, the government did not have enough evidence to indict these individuals. Id. at 71. More so, AUSA Schulte recognized that A.C.P. was always truthful in his debriefings and testimony regarding his participation and that of others. Id. at 76-77.
This additional factor also weighs quite heavily in favor of a juvenile adjudication. This is a unique example of a minor who, upon arrest, immediately accepts his actions and begins to cooperate. It is important to note that when A.C.P. began cooperating, A.F.P.D. Guzmán had yet not been appointed to represent him. See id. at 67. Thus, this is not an instance where, upon the advise of counsel, a defendant suddenly begins to cooperates with hopes of obtaining a reduced sentence.
The Court hereby makes it abundantly clear that it is in no way implying that maintaining juvenile status will be the sole result of A.C.P.'s substantial assistance, nor that a transfer to adult status can per se be avoided by a minor's cooperation. The Court has indeed considered A.C.P.'s extensive cooperation. More important, however, the Court has also carefully considered the particular circumstances surrounding such cooperation, such as A.C.P.'s total and truthful admission of his participation in the offense, as well as other criminal acts, his motivation to cooperate at the outset even when he did not yet have counsel, and his remorse for his actions, discussed ante. These particular circumstances, rather than the fruits of the cooperation themselves, are what the Court finds weighs heavily in favor of maintaining juvenile status.
Evaluation of Section 5032 Factors and Conclusion
Having considered and weighed the six Section 5032 factors, as well as the additional factor of A.C.P.'s cooperation and present treatment results, the Court makes the following determinations. Certainly, the nature of the offense itself weighs heavily in favor of a transfer to adult status. The Court does not grant weight either way to A.C.P.'s prior delinquency record. The other four Section 5032 factors and the additional cooperation factor, however, when combined, weigh extremely heavy in favor of maintaining juvenile status. In its ultimate balancing, the Court determines that the strong combination of the latter factors tilts the balance in favor of juvenile adjudication. Unlike in the previously discussed carjacking and robbery cases transferring the juvenile to adult status, see ante at pages 6-8, here the minor has provided extraordinary and significant cooperation to the government, has shown extraordinary rehabilitative efforts and progress, and has accepted responsibility for his acts, as well as expressed continued remorse. In this sense, the Court feels compelled to depart from the jurisprudential consensus of transfer in cases such as this. Again, this is a very unique case, whose particular circumstances have enabled the Court to examine evidence which almost always is unavailable at a transfer hearing.
This is also not the first occasion in which a federal court rules against the request to transfer a minor who has committed a violent act such as A.C.P. Cases such as this one, as well asJuvenile K.J.C. and In re T.W., ante at 8-9, however, are the exception and not the norm. More so, the Court considers this case to be more exceptional due to the minor's significant cooperation and extraordinary rehabilitation, as well as acceptance of responsibility and remorse. Wherefore, the government's motion to transfer A.C.P. from juvenile to adult status (Docket No. 12) must be denied. SO RECOMMENDED.
In his supplemental memorandum of law (Docket No. 101) at pages 2-5 A.C.P. raises a jurisdictional argument not previously raised. He claims that the Attorney General has failed to comply with Section 5032 insofar as he has not certified in the transfer motion that there is a "substantial federal interest" in this case. A review of the transfer motion (Docket No. 12) evidences indeed that it does not contain any language to said effect. However, the government did file a certification (Docket No. 4) which states that it has a "substantial federal interest" in prosecuting the case federally. In United States v. Smith, 178 F.3d at 26, the Court held that in the context of certification under Section 5032, "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." Accordingly, this Court may not review the government's certification to determine whether a "substantial federal interest" to prosecute A.C.P. exists. Id..
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(d) of the Local Rules of Court. Any objections to the same must be specific and must be filed with the Clerk of Court on or before May 6, 2005 at 12:00 p.m., as per Judge Pérez Giménez's instructions. Failure to timely file specific objections to the Report and Recommendation is a waiver of the right to review by the District Court. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Report and Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).