PAUL A. ENGELMAYER, District Judge:
This decision resolves a motion to transfer a juvenile to enable the Government to prosecute him as an adult. On August 23, 2016, the Government filed a Superseding Juvenile Information (the "Information") against C.F.
For the following reasons, the Court denies the motion to transfer C.F. to adult status.
The charges against C.F. were brought contemporaneously with an Indictment — returned on December 9, 2015, and superseded on September 28, 2016 — against 26 adult defendants alleged to have been members or associates of a Bronx gang, known as "18 Park" or "18 Park — Young Money." See Indictment S6 15 Cr. 445 (PAE) (the "Superseding Indictment"). The gang is alleged to have been based in the Patterson Houses, a public housing project in the South Bronx, and to have controlled the northern portion of that project, from approximately East 143rd Street to East 148th Street, between Morris Avenue and Third Avenue.
The Superseding Indictment alleges that 18 Park's members sold retail and wholesale quantities of illegal drugs — including crack cocaine, cocaine, heroin, and marijuana — and committed acts of violence to preserve and extend the gang's authority and its drug distribution activities. These acts of violence included two murders and numerous attempted murders and assaults, largely directed at rival gangs, including gangs known as the YGz ("Young Gunnaz"), Square Gang, and the Courtland Avenue Crew. These rival gangs are alleged to have controlled adjoining areas of the Patterson Houses.
The Superseding Indictment brings charges of conspiracy to commit racketeering, 18 U.S.C. § 1962(d); narcotics conspiracy, 21 U.S.C. § 846; murder in aid of racketeering, 18 U.S.C. § 1959(a)(1); assault and attempted murder in aid of racketeering, 18 U.S.C. §§ 1959(a)(3) and 1959(a)(5); and firearms charges, 18 U.S.C. § 924(c)(1)(A)(iii). Various defendants have pleaded guilty. On November 21, 2016, three defendants were convicted on all charges against them, following a jury trial that began on October 31, 2016. Trials for the remaining defendants are scheduled to commence on February 21, 2017 and June 26, 2017.
On December 9, 2015, the Government filed a Juvenile Information against C.F., S3 15 Cr. 445 (PAE), and, on August 23, 2016, a Superseding Juvenile Information, S5 15 Cr. 445 (PAE). Its three counts arise from C.F.'s alleged participation, between 2013 and December 2015, in 18 Park, which the Information terms a racketeering and drug-trafficking organization.
Count One charges conspiracy to commit racketeering. It alleges that C.F. committed eight acts in furtherance. These
C.F., who was age 17 years and 10 months as of his arrest, was detained on December 9, 2015. Since shortly after, he has been held at the Essex County Juvenile Detention Center in New Jersey. He is attending — by all accounts productively — Sojourn High School, a public high school for persons charged with juvenile offenses whose cases are pending. See infra pp. 28-37.
On December 15, 2015, the Government moved to transfer C.F. to adult status, and sought a hearing on that motion, under 18 U.S.C. § 5032. The parties' expert psychologists and a social worker then conducted evaluations of C.F. and submitted reports. These reports were by Dr. Cheryl Paradis, a psychologist retained by the Government ("Paradis Rpt."); Dr. Jessica Pearson, a psychologist retained by the defense ("Pearson Rpt."); and Lisa Orloff, a social worker retained by the defense, who served as a mitigation expert and conducted extensive interviews ("Orloff Rpt."). The United States Probation Office also submitted a report, pursuant to 18 U.S.C. § 5037(e). The Government and defense counsel made pre-hearing submissions.
On August 24-25, 2016, the Court held an evidentiary hearing on the transfer motion. Eight witnesses testified. The Government called Dr. Paradis and Special Agent Candice Henry of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, who testified as to evidence of C.F.'s criminal conduct. The defense called Dr. Pearson; Orloff; three teachers from a middle and high school C.F. attended, Hostos Lincoln Academy of Science ("Hostos") — Syed Hasan, Francesca Martinelli, and Theresa Stillwell; and a social worker from the same school, Robert Dalmau.
On September 14, 2016, the Court received post-hearing memoranda from the parties.
The JJDPA, 18 U.S.C. §§ 5031-5042, provides special procedures for the prosecution of juveniles alleged to have committed federal crimes.
Under the JJDPA, for a juvenile to be transferred to adult status, the Attorney General must move for such transfer
Under the statute, to determine whether transfer to adult status is in "the interest of justice," the district court must consider and make findings as to 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." Id. The Court's findings as to these factors are by a preponderance of the evidence. United States v. Doe, 49 F.3d 859, 868 (2d Cir. 1995). The JJDPA presumes that juvenile adjudication is appropriate, unless the Government, which carries the burden of proof, establishes that prosecution as an adult is warranted. See United States v. Nelson, 68 F.3d 583, 588 (2d Cir. 1995) ("Nelson I") (citing United States v. A.R., 38 F.3d 699, 706 (3d Cir. 1994) ("The statute clearly intends a presumption of juvenile treatment[.]"); Juvenile Male No. 1, 47 F.3d at 71.
As to the six statutory factors, the Second Circuit has explained that these shed light on the juvenile's potential for rehabilitation, as "[p]ermeating the transfer decision and the six-factor inquiry is the notion of rehabilitation." United States v. Nelson, 90 F.3d 636, 640 (2d Cir. 1996) ("Nelson II"). In evaluating these factors, a district court "may balance the factors in any way that seems appropriate to it"; the factors need not be given equal weight. Nelson I, 68 F.3d at 588. As a broad guidepost, however, the Court is to balance "the goal of rehabilitation" against "the threat to society posed by juvenile crime." Nelson II, 90 F.3d at 640 (quotation omitted); United States v. Ramirez, 297 F.3d 185, 193 (2d Cir. 2002). As a result, in weighing the factors, the nature of the offense and the defendant's potential for rehabilitation "are often properly given special emphasis." Ramirez, 297 F.3d at 193. A court may give added weight to the nature of the offense when the crime at issue, such as intentional murder, is particularly serious, see Nelson I, 68 F.3d at 590.
The ultimate issue for the Court as to rehabilitation is whether the Government has "prove[d]" that the juvenile's rehabilitation through juvenile treatment "is not likely." Nelson II, 90 F.3d at 641 (emphasis in original) ("While the district court may frame the analytical issues as whether rehabilitation is `likely,' the motion to transfer may be granted only when
The Court has carefully considered the six statutory factors in light of the interest of justice standard. This case presents a close question. The Government has pursued transfer to adult status, rightly emphasizing the serious nature of C.F.'s criminal acts. The defense, for its part, rightly emphasizes C.F.'s potential for rehabilitation, if liberated from his destructive home and neighborhood environment and given treatment and tutelage tailored to his needs, and notes that C.F. has made strides since his removal to a juvenile treatment facility following his arrest. On balance, the Court finds that the Government has not "prove[d]" that C.F.'s rehabilitation through juvenile treatment is "not likely," Nelson II, 90 F.3d at 641, that C.F. has a reasonable prospect of rehabilitation, and that transfer of C.F. to adult status is not in the interest of justice.
Like the other factors, the Court assesses the juvenile's age and social background as a means of gauging the juvenile's potential for rehabilitation. Nelson II, 90 F.3d at 640. As to age, a court is to consider the juvenile's age both at the time of his criminal acts and at the time of the transfer hearing. Nelson I, 68 F.3d at 589. As to the former, a crime committed when the juvenile was "very young" or that was "an isolated indiscretion" supports transfer less, whereas conduct that occurs closer to age 18 or over a prolonged period of time supports transfer more. See Doe, 49 F.3d at 867. As to the latter, "current age is significant for a determination of whether juvenile-type rehabilitation programs would be appropriate for" a juvenile, mindful that "the more mature a juvenile becomes, the harder it becomes to reform the juvenile's values and behavior." Nelson I, 68 F.3d at 589 (quotation omitted). Alongside the juvenile's chronologic age, the Court considers his social background because the juvenile's life experience may shed light on his actual level of maturity and his capacity for growth, which ultimately informs the Court's assessment of "whether juvenile-type rehabilitation programs would be appropriate" for him. Id.
Although the Court ultimately makes a holistic assessment of this first § 5032 factor, it is clarifying to address distinctly C.F.'s age, at both the times of his offenses and his current age, and his social background. The Court finds that although C.F.'s age at the time of his offenses favors transfer, his social background strongly disfavors transfer, and his current age — given the availability of long-term juvenile programs suited to his needs — also disfavors transfer.
C.F. was born February 16, 1998, and turned 18 on February 16, 2016. As alleged in the Information, the allegations of which the Court must take as true for purposes of this proceeding, Nelson I, 68 F.3d at 589, C.F.'s participation in 18 Park extended from age 15 until his arrest at
C.F.'s age at the time of these crimes favors transfer. Not only did his criminal conduct extend until late into his age-17 year when it was interrupted by his arrest but his criminal conduct also escalated such that his most serious crimes were committed within a year, or 18 months at most, of his reaching majority. See, e.g., Doe, 49 F.3d at 867 (age favored transfer where juvenile committed robbery at age 16 and extortion at age 17; "because Doe had continued to engage in acts involving [his gang] up to just a year short of his eighteenth birthday, the conduct with which he was charged did not occur either when he was very young or as an isolated indiscretion"); United States v. Juvenile Male No. 2, 761 F.Supp.2d 27, 33 (E.D.N.Y. 2011) (juvenile was "nearly seventeen years old, and therefore was not a young child, at the time of the alleged murders ... weigh[s] in favor of transfer."). On the facts alleged, C.F.'s crimes cannot be chalked up to chronologic youth.
It is no answer that C.F. committed some crimes at younger ages, such that, had he then stopped, his age as of his crimes might have disfavored transfer. See, e.g., United States v. Juvenile Male N.R., 24 Fed.Appx. 638, 639-40 (8th Cir. 2001) (where juvenile was age 16 at time he killed his stepfather with an axe, age weighed against transfer); United States v. Juvenile Male, 844 F.Supp.2d 333, 339 (E.D.N.Y. 2012) (juvenile's age of 16 years 3 months as of murder weighed against transfer); United States v. Anthony Y., 990 F.Supp. 1310, 1313 (D.N.M. 1998) (juvenile's age of 16 years 2 months as of two felony murders weighed against transfer). C.F.'s pre-age-17 crimes were not isolated events: On the contrary, after he turned 17, his crimes continued, and escalated. That C.F.'s crimes began at a young age thus does not afford him any refuge as to the statutory age factor.
The parties' expert psychologists reach different conclusions as to the maturity level that C.F.'s social background reflects. Dr. Paradis opines that C.F.'s maturity level is "similar to many seventeen and eighteen-year-olds," Paradis Rpt. 12; Dr. Pearson opines that C.F. has "developmental immaturity, meaning his level of maturity is younger than his actual age." Pearson Rpt. 13. Having considered these opinions in light of the factual record developed as to C.F., the Court finds Dr. Pearson's more detailed assessment, on the whole, far the more persuasive. In particular, the Court is persuaded that the circumstances of C.F.'s childhood and adolescence, coupled with his severe intellectual and psychological deficits, left him lacking — to a striking degree — the tools needed to navigate school and society productively. These help explain his draw to, and participation as a juvenile in, one of the gangs that dominated his neighborhood.
To explain this assessment, the Court, first, reviews C.F.'s childhood and adolescence. This includes his family and home circumstances and his educational and social history. (This background is relevant to several other § 5032 factors.) C.F.'s innate deficiencies are important context for this history. C.F. has major cognitive deficits, which include an IQ that has been measured at 70 and 78 and psychological problems. Under any circumstances, C.F. would have needed substantial support and treatment to cope with the challenges of school and society. But, as his history shows, C.F.'s journey — despite good-faith efforts to help him by educators at his last school — has been marked more by hazards than help. From a young age, he was exposed at home and in his neighborhood to substance abuse, violence, threats, and other anti-social behavior; neglected by his parents, he was largely left to face these obstacles on his own. Consistent with the various teachers' descriptions of C.F.'s affect and behavior as regressive and childlike, he presented to the Court, at the hearing, as a child in an adult's body. These circumstances all inform the Court's assessment of C.F.'s developmental maturity. And they frame the central question as to this factor on the transfer motion: If C.F. were adjudicated delinquent and housed in a behavioral treatment program in a new environment — under the Court's authority to officially detain, for up to five years, a juvenile offender who between ages 18 and 21 has been found delinquent — would C.F. be likely to attain substantially greater maturity and self-control?
C.F. was born to parents from Puerto Rico and raised in the South Bronx. He is the youngest of his mother's five children — there are two older sisters and two older brothers. C.F. shares the same father with one brother. In recent years including at the time of his arrest, C.F. lived in an apartment with his mother and one brother ("Brother-1").
For most of C.F.'s youth, his father, who is illiterate, was imprisoned, covering two stretches. Beginning when C.F. was age 3,
C.F.'s mother, who largely raised C.F. as a single parent, was often absent. As young as age 7, C.F. was often left alone in the apartment; to therapists, he reported feeling neglected. C.F. spent more time on the streets than with family. Perhaps indicative of parental neglect, during his early childhood, C.F. suffered a series of physical injuries, including a burn, and several head injuries, one caused by a fall as an infant that cost him teeth, another caused by a car accident that fractured his elbow, and a third caused by a swing that left him unconscious. See Orloff Rpt. 8-9; Pearson Rpt. 3, 12.
C.F.'s parents abused alcohol. While living with C.F. and C.F.'s mother, C.F.'s father had a substance abuse problem. C.F.'s mother drank alcohol frequently; C.F. saw his mother drink and become intoxicated. Starting at age 16, C.F. regularly drank his mother's alcohol, which was accessible to him. C.F. drank both socially and alone, sometimes beginning in the morning, and sometimes "[u]ntil there isn't anymore," and reported episodes of vomiting, passing out, and blackouts. See Orloff Rpt. 11; Paradis Rpt. 2, 5-6; Pearson Rpt. 3, 12.
C.F.'s older brothers had behavioral issues. Brother-1, who at all times lived with C.F., suffers from a mental illness consistent with schizophrenia. Brother-1 once tried to hang himself. Since turning 18, Brother-1 has refused treatment for his mental health problems. Brother-1 talks to himself, "sees things," and hears voices. Such behavior has caused C.F. to fear Brother-1. C.F. locked the door to his room at night if Brother-1 was wandering around. See Orloff Rpt. 6, 15; Paradis Rpt. 2; Pearson Rpt. 3. Brother-2 frequently used marijuana, including in the bedroom he shared with C.F. during much of C.F.'s childhood. Now age 28, Brother-2 was also a member of 18 Park, and has been charged with participating in the racketeering conspiracy and with firearms offenses. Brother-2 is alleged to have shot another person. See Paradis Rpt. 3; Indictment S6 15 Cr. 445 (PAE).
C.F.'s childhood and adolescence were punctuated by traumatic events. When he was in the 7th grade, a close friend was shot in the head and killed on route to a store. C.F. had declined to accompany the friend; after hearing gunshots, C.F. saw his friend on the ground, bleeding to death. C.F. felt sadness, anger, and guilt about not having accompanied his friend; he related this story to a therapist with difficulty. After this event, a "hit list" circulated at C.F.'s school with his name on it, causing the school to make a "safety transfer" of C.F. to a different school, Hostos, to reduce the risk to him of violence. When C.F. was age 16, he was "jumped" — robbed by youths with whom he gone to a previous school. C.F. saw the youths running towards him and tried to flee, but was caught and beaten up. C.F. later stated: "The Patterson housing project was coming for me." To a therapist, C.F. reported "constant fear, worry and hypervigilance relating to `getting jumped, stabbed, robbed.'" C.F. reported similar fears to teachers. Orloff Rpt. 7-8; Paradis Rpt. 6-7; Pearson Rpt. 3-4, 7; Tr. 182-83 (Martinelli); 200 (Stillwell); 211 (Dalmau).
C.F.'s intellectual limitations were identified at a young age. C.F. repeated first grade. When he was age 7, a doctor recommended special education. When he was
C.F's last school — before his arrest in this case — was Hostos; he entered in 7th grade. C.F.'s school experience was tumultuous. Hostos is located in a crime-ridden neighborhood; students were often robbed at school of items like sneakers or phones, and at nearby St. Mary's Park, where teachers took students, needles, condoms, and broken glass lay on the ground. At age 16, C.F. was chased down, robbed, and beaten by members of a gang. C.F. thereafter reported fear for his safety, and, despite living within walking distance, attempted to avoid school, unless he could take a cab or be accompanied. To his teachers, C.F. reported constant fear, including that he had been chased into the school by adults who had tried to attack him. Orloff Rpt. 7; Paradis Rpt. 4; Pearson Rpt. 4; Tr. 165-67 (Hasan); Tr. 189 (Martinelli); Tr. 199-200 (Stillwell); Tr. 213-14 (Dalmau).
C.F.'s attendance at Hostos was poor. It trailed off from adequate in middle school to pronounced absenteeism and lateness in high school. Teachers believed that C.F.'s fear of being attacked weighed on him and impeded his attendance and performance. C.F.'s alcohol use also appears to have contributed to his increasing absenteeism. Teachers and counselors at Hostos noted C.F's lack of support at home: He often came to school, without a backpack, notebook, pen, or completed homework. Teachers
The foregoing suggests that C.F., by virtue of his social background and innate deficiencies, was quite ill-equipped to process or negotiate his challenging environment. The testimony of four of C.F.'s Hostos teachers or counselors is in accord. All four — and particularly special education teacher Stillwell and social worker Dalmau — impressed the Court as having tried conscientiously to help C.F. This testimony, by thoughtful professionals who knew C.F. long before his arrest, informed the Court's assessment of C.F.'s social background and maturity. The Court accordingly summarizes it here.
Syed Hasan: Hasan, at Hostos since 2003, was C.F.'s 7th grade science teacher. He testified that when C.F. arrived at Hostos, he was "below grade level" in reading and math, and "needed a lot of help." C.F had difficulty keeping up with peers, including taking notes and writing paragraphs. C.F. had little home support, and often came to school unprepared without having done homework. Hasan tried to motivate C.F., but when C.F. found classroom concepts difficult, "he would shut down" and "put his head down." On walks with Hasan, C.F. reported that certain things "shut him down. Like, when someone is screaming or yelling at him, he didn't really like that." Hasan perceived that C.F. wanted help, but there were limits to what he could receive in a mainstream public school like Hostos: "When you talk to him, he wants some kind of assistance and guidance," but "we only have him for ... at most six hours and 20 minutes ... then he goes back out to his neighborhood for 18 hours, 19 hours." Tr. 164-74.
Francesca Martinelli: Martinelli, at Hostos since 2010, was one of C.F.'s special education teachers. She testified that C.F. was at about a 2nd-grade level in all academic areas when he arrived at Hostos and had impaired fine motor, speaking and writing skills; it took C.F. 45 minutes to compose three sentences on a good day, while most peers could compose three paragraphs of writing. C.F. arrived late almost daily; upon arriving, C.F. would often "put his head on the desk." C.F. was suspended once for an altercation with another student but was not a disruptive or aggressive student. He knew he was significantly behind his peers and was embarrassed by this. Martinelli was protective of C.F. because he "had to deal with a lot from a very young age." Tr. 181-91.
Theresa Stillwell: Stillwell, at Hostos 10 years, was C.F.'s English and special education teacher. She testified that schoolwork was difficult for C.F.; he needed one-on-one and small-group help and for assignments to be read aloud and broken into small segments. Stillwell provided extra instruction for C.F.; she viewed him as trying hard and willing to listen to teachers with whom he could relate, but very guarded. Seeing C.F. as "a special kid" and wanting to help him, Stillwell repeatedly urged C.F.'s mother to move C.F. out of his neighborhood, "[f]or his safety, to get him away from bad influences, to get him more educational support and help." Stillwell raised the possibility that C.F. could live with her. C.F.'s mother, however, did not accept this offer or herself
Robert Dalmau: Social worker Dalmau, at Hostos for four years, first met C.F. after C.F.'s safety transfer to Hostos. Dalmau met individually and in group sessions with C.F. He perceived that C.F. had obvious academic disabilities, and low self-esteem, both as to schoolwork and to fitting in socially. Dalmau perceived that, with his father in prison, C.F. was susceptible to negative social pressure from older gang members. Dalmau viewed C.F. as "a young man trying to find his way" amid "the dynamics of the community, all the violence, all the drugs, and a lot of pressure that goes with that." Dalmau saw grown men chase C.F. into the school building; C.F. had "always constant paranoia on his mind, because people literally tried to physically assault him several times." Dalmau viewed C.F. as having "inherit[ed]" gang affiliations and antagonists based on the block and area in which he lived and trapped in an environment marked by "ongoing feud[s]" between territorial gangs. In Dalmau's view, given C.F.'s low self-esteem, he was particularly vulnerable to the "older people on the block. They coerce and they find people.... [I]f you're a young man coming up, you fall prey to the olders, even the ones that are your `friends' ... they put you in dangerous situations."
In light of the above, the Court finds, with Dr. Pearson, that C.F. is developmentally and socially quite immature, such that his chronologic age substantially overstates his maturity and relevant life experience.
Under these circumstances, the Court finds that C.F.'s social background weighs very strongly against transfer to adult status. It far more than offsets C.F.'s chronologic age at the time of his crimes. As to § 5032's paramount goal of rehabilitation, C.F.'s background suggests that a significant root cause of C.F.'s juvenile crimes was environmental. Given the overall circumstances of his adolescence and teenage years, his turn to gang affiliation was unsurprising. Like C.F.'s Hostos teachers, the Court finds that C.F. has room to grow: He has significant potential to attain greater maturity if relocated, for a lengthy period, from the South Bronx and into a custodial treatment program for juvenile delinquents suited to his needs.
A juvenile's age at the time of the transfer hearing may also bear on his capacity for rehabilitation through juvenile treatment. See Nelson I, 68 F.3d at 589. C.F. is currently 18 years and 9 months old.
The Court's finds that, in C.F.'s case, his present age on balance slightly disfavors transfer. On the one hand, the law generally assumes that older juveniles are more resistant to rehabilitation as a chronologic matter, and C.F. is today of adult age. On the other hand, C.F. is still 18, not 20, compare Nelson I, 68 F.3d at 589, and, for the reasons stated, C.F.'s chronologic age overstates his maturation, and he has the capacity to mature if re-planted in the right environment. Moreover, under the JJDPA, C.F.'s age leaves ample time for him to serve in mandatory treatment aimed at rehabilitation: An offender who is between ages 18 and 21 when adjudicated a juvenile delinquent may be ordered to serve up to five years in juvenile detention. See 18 U.S.C. § 5037(c)(2)(A)(i)-(ii). For the reasons discussed infra in connection with the sixth § 5032 factor, the Court finds that there are suitable juvenile treatment facilities for C.F., and five years in such a program ought to be sufficiently long to enable C.F. to gain its benefits.
Weighing C.F.'s age and social background in combination, the Court therefore finds that the first § 5032 factor strongly disfavors transfer to adult status.
In contrast to the first § 5032 factor, the second factor, the nature of the alleged offenses, strongly favors C.F.'s transfer.
In considering this factor, the court must assume that the juvenile committed the offenses charged and may not evaluate the likelihood of conviction. Nelson I, 68 F.3d at 589. Courts are to give this factor added weight in cases of "particularly serious" crimes. See id. at 590 (murder); see, e.g., United States v. Smith, 178 F.3d 22, 24, 27 (1st Cir. 1999) (spree of two armed robberies and one armed carjacking, committed by menacing victims with gun and holding butcher knife against throat of victim and leading police on
Section 5032 also directs the Court to consider the juvenile's role in the offense: "[T]he court shall consider the extent to which the juvenile played a leadership role 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." 18 U.S.C. § 5032.
The Information alleges three serious offenses: (1) racketeering conspiracy, (2) assault and attempted murder in aid of racketeering, and (3) the use, carrying and discharge of a firearm in aid of these offenses. As to acts in furtherance of the racketeering conspiracy, C.F is alleged to have to have stored drugs and guns for the gang at his residence, Information ¶ 8a; twice accompanied 18 Park members when they shot at or stabbed members of rival gangs, id. ¶¶ 8f-g, and twice himself to have shot at rival gang members, in fall 2013, id. ¶ 8c, and on July 29, 2015, id. ¶ 8h, an act which the Information alleges was an attempted murder. It goes without saying that these crimes, even without further factual amplification, are serious. The two shootings are particularly so, and strongly favor prosecution as an adult.
In light of the statutory command that the Court consider the juvenile's role in the offense, the Court reviewed the evidence of these crimes, adduced at the hearing, seeking to gauge further the severity of these crimes and whether C.F. played a leadership role in them. This evidence included security camera video recordings capturing the July 29, 2015 shooting, see, e.g., GX 2C, 2D, 2F, 2H; wiretap recordings of C.F.'s calls with Marquis Wright regarding the storage and sale of narcotics, see, e.g., GX 1C/1CT, 1E/1ET, 1G/1GT, 1J/1JT, 1O/1OT, 1P/1PT, and excerpts of Facebook messages, reflecting C.F.'s communications with 18 Park members about drug sales or altercations with rival gangs, see, e.g., GX 12, 14, 16, 20, 21. In summary, the evidence reflected the following.
Stash house and narcotics: The Facebook messages and the wiretapped calls reflect that C.F.'s home was used as a stash house for drugs and firearms and that C.F. engaged in drug sales at Wright's direction. For example, in May 2015, C.F. messaged an Omar Marroquin regarding marijuana, using coded terms for drugs. GX 21.
As to C.F.'s phone calls with Wright, they reflect that Wright gave C.F. instructions regarding drugs. For example, on November 21, 2015, C.F. sought answers about the amount of marijuana available and how it would be paid for. See GX 1O/1OT; Tr. 110-12. Later that day, C.F. called Wright to ask whether Wright would allow him to sell all or a portion of drugs. GX 1P/1PT; Tr. 113-14. C.F. asked Wright questions about how much to sell and how much money has was to give to Wright, and Wright responded. Id. On October 25, 2015, Wright called C.F. to report that someone was coming to get an amount of marijuana that Wright had stored in C.F.'s closet. GX 1G/1GT; Tr. 109-10. On other calls, Wright similarly instructed C.F. to do tasks and C.F. asked Wright questions. See GX 1C/1CT, Tr. 108 (October 22, 2015; Wright instructs C.F. to bring drugs outside of C.F.'s residence); GX 1E/1ET, Tr. 108-09 (October 23, 2015; as interpreted by Agent Henry, Wright instructs C.F. to bring "something to the store [where 18 Park conducted drug sales] real quick."); GX 1J/1JT, Tr. 106-07 (October 9, 2015; C.F. asks Wright where he is because C.F. has money from cocaine sale but is "working on" marijuana; Wright responds, "I'm about to leave out my crib cause I had to get my hair done.").
These communications clearly reflect a pattern of drug distribution by C.F. on behalf of the gang. At the same time, the Court's assessment is that they also reveal C.F. to be a lower-level participant and a follower, such that it would be improper to assign the second § 5032 factor extra weight on account of the juvenile's having played a leadership role. Indeed, C.F. appears to have needed direction from Wright as to even rudimentary matters involving the drug sales; Wright directed C.F.'s actions, corrected his calculations, took over some matters himself, and, on one occasion, even notified C.F. where drugs were stashed in C.F.'s own apartment. For example, on November 21, 2015, C.F., called Wright to report an upcoming marijuana sale. C.F. related that "Wawa" wanted to purchase a quantity of marijuana and had given only $100 (a "Ben") to C.F., and that C.F. had yet to give Wawa the marijuana. Finding $100 inadequate, Wright responded: "Only a Ben? Yeah, niggas can't take nothing, bro. Nobody can't take nothing without money." In response, C.F. reassured, defensively: "He ain't take nothing, bro. That's why I was going to call you. That's why I told him, I said, `No can't do nothing.' So I call you." Wright then told C.F. that he (Wright) will come and take the marijuana to make sure the full quantity is there. ("I got to come... You want to wait out real quick? Cause I'm about to come down there ... I'm about to take that. I don't want nobody to take that."). C.F. then reassured Wright that he had not intended to give the marijuana away without Wright's approval. ("I'm not giving that until it's cool, until you get, to you say whatever."). See GX 1O/1OT. Later that day, C.F. again called Wright for direction ("I told him I'm going to call you real quick to ask you [about quantity]"), and Wright approved the terms, id. ("No, no, no. Sell it, bro. Sell it."). C.F. then asked Wright how much money C.F. was to give to Wright. ("I have to give you nine, right?"; Wright: "Yeah."). GX 1P/1PT. Similarly, on October 25, 2016, Wright called C.F. to tell him someone was coming to pick up marijuana stored in C.F.'s closet which Wright had left. Apparently unaware of the location of this marijuana, C.F. then asked, "Where is it at?"; to which Wright replied, "Ain't it on top of the closet? In the closet?" C.F. then said, "Oh, no, no, I ain't even know that was there." Wright then stated: "Yeah, the three [unintelligible] that I left,
Shooting incidents: Of the two instances in which C.F. is alleged to have shot at rival gang members, the Court received evidence only as to the second, the July 29, 2015 shooting at around 148th Street and College Avenue. The Court examined the videos that capture, from different perspectives, this incident. They reflect that members of a rival gang had, apparently, entered 18 Park's territory, riding bicycles and a scooter. As they moved west on 148th Street, C.F. and two other members of 18 Park pursued them on foot, about a half block behind. At approximately 11:49:10 p.m., for reasons that are unclear, C.F. fired three shots with a pistol in the direction of the rival gang members. At that point, the rival gang members accelerated their pace and ran or rode away. C.F. then fired a final shot in the general direction of the fleeing rival gang members. See GX. 2A, 2C, 2D, 2F, 2H; Tr. 137-44.
The reckless, destructive conduct reflected on these videos cannot be minimized. C.F.'s four gunshots could easily have taken lives, including of bystanders. This incident alone justifies treating the second § 5032 factor as strongly favoring C.F.'s prosecution as an adult.
That noted, there is no indication in the videos — and the Government has not alleged — that this episode reflects a leadership role by C.F. in the gang or that C.F. organized the participants in this episode. Of the 18 Park posse, C.F. alone fired gunshots, but the video does not shed light on why he came to do so. The extra weight warranted for this § 5032 factor in cases of a juvenile who was a gang leader thus does not apply here.
C.F. has never been adjudicated delinquent. GX 8. This case thus contrasts with those in which the juvenile committed the crime at issue after having been adjudicated delinquent. In such cases, courts have viewed the juvenile's record as reflecting durable criminality and recidivism and a low likelihood of rehabilitation. See, e.g., Juvenile Male No. 2, 761 F.Supp.2d at 39-40. In this respect, this factor disfavors C.F.'s transfer.
C.F. was arrested, however, twice before his arrest in this case. On March 24, 2015, he was arrested and charged with an assault in the area of the Patterson Houses. See GX 10. And on August 11, 2015, he was charged with two counts of criminal possession of a weapon and two counts of reckless endangerment, both in connection with the July 29, 2015 shooting incident. See GX 9. Following C.F.'s arrest in this case, these charges were all dismissed.
There is a split of authority whether a juvenile's prior arrests may be considered under this § 5032 factor. Compare United States v. Juvenile LWO, 160 F.3d 1179, 1183-84 (8th Cir. 1998) (holding that this factor permits consideration only of convictions, not arrests) with United States v. Wilson, 149 F.3d 610, 613 (7th Cir. 1998) (holding courts may consider arrests as to this factor). The Second Circuit has arguably implied that such arrests may be considered under this factor. see Doe, 49 F.3d at 868 (noting, without criticism, that the district court had done so), but has not expressly addressed this issue.
The Court here need not resolve this doctrinal technicality. Regardless whether a juvenile's prior arrests may be considered under this § 5032 factor, they may be considered under others, because the juvenile's responses to such an event may, in appropriate cases, bear on the juvenile's rehabilitative potential and potentially social background, if not other factors. See
For simplicity's sake, the Court considers C.F.'s prior arrests at this point.
The Court's judgment is that C.F.'s prior arrests weigh in favor of transfer, such that they effectively offset his lack of any adjudications of delinquency, and render this factor, on balance, neutral. Particularly concerning is the fact of the March 24, 2015 arrest, C.F.'s first. The Court does not consider the alleged conduct underlying that arrest, because the charge against C.F. — which appears to have related to a fight with a member of a rival gang, the YGz, see GX 4, 12 — was dismissed and forms no part of the charges in this case. But it is relevant that C.F., after that arrest, committed the July 29, 2015 shooting and the narcotics trafficking with Wright. The Government fairly notes that C.F.'s arrest — his first brush with the criminal justice system — did not deter him from further crimes. Given that, it argues, immersion in juvenile treatment may also fail to modify C.F.'s behavior. Undeniably, there is force to that argument. However, an arrest is different from juvenile behavioral treatment. An arrest does not attempt to modify a juvenile's behavior — and there is no indication that C.F. was under any supervision or monitoring after his arrest and release. And under the JJDPA, the paramount inquiry is whether such treatment, if afforded to a juvenile, will likely result in rehabilitation. C.F.'s failure to change course after his arrests bears only so much on how he would respond to an appropriate juvenile program. C.F.'s arrests therefore shed only limited light on his rehabilitative capacity.
This factor seeks to gauge, through an examination of the juvenile's present intellectual development and his psychological maturity, the juvenile's moral culpability and his capacity for rehabilitation. See Nelson I, 68 F.3d at 589 ("the more mature a juvenile becomes, the harder it becomes to reform the juvenile's values and behavior"); Doe, 49 F.3d at 868 (transfer warranted where juvenile's above-average intelligence and repeated criminal acts made rehabilitation unlikely); United States v. A.R., 203 F.3d 955, 962 (6th Cir. 2000) (juvenile's lower intelligence and maturity did not preclude transfer where he "ha[d] the cognitive ability to conform his conduct to the law"). As Judge Failla has synthesized the case law: "Courts have found that a juvenile's present intellectual development and psychological maturity support transfer where the juvenile is closer to average levels of intelligence and emotional or psychological maturity." A.O., a Male Juvenile, 2016 WL 4197597, at *7 (citation omitted).
As to C.F., the Court has already addressed these qualities at length, in the course of addressing the first § 5032 factor. In brief, as to intellectual development, C.F.'s level is far below average: His overall IQ places him in the borderline range and his academic performance has topped out at a third-grade level. And, as to C.F.'s psychological maturity, C.F. is regressive, in that his ability to make adult decisions is badly compromised. Indeed, teachers and others who know C.F. have widely described his bearing as simple and
C.F.'s comportment during the transfer hearing also suggested dysfunctionality. The Court observed that, throughout the two-day hearing, C.F. was virtually motionless and emotionless. During even poignant moments, including when Hostos educators needed to compose themselves while recounting their pleas to his mother to move him from the neighborhood, C.F. did not stir. He showed no affect. It was not clear whether the hearing's consequences meaningfully registered with C.F.
The Court's therefore finds that C.F.'s intellectual deficits and immaturity strongly disfavor transfer.
Separately, the hearing record reflects that C.F. may have other psychological conditions. Dr. Pearson opined that C.F. exhibits many, although not all, criteria for post-traumatic stress disorder. These, she stated, may stem from C.F.'s having witnessed his friend's murder at age 15; C.F. had difficulty speaking about the murder, and exhibited "significant symptoms of posttraumatic stress and depression including anxiety, fear, hypervigilance, nightmares, intrusive memories, and avoidance." Pearson Rpt. 12. Dr. Paradis and Dr. Pearson further opined that C.F.'s symptoms meet the criteria for alcohol use disorder; these including daily or near-daily drinking, drinking alone and in the morning, and blackouts, vomiting, and passing out. Paradis Rpt. 6, 11; Pearson Rpt. 8, 11-12. Finally, since his arrest, C.F. has exhibited symptoms of obsessive-compulsive and related disorders, including extensive pulling-out of his facial and arm hair. Pearson Rpt. 7, 11-13. It is reasonable to infer that productive treatment of these conditions can only enhance C.F.'s capacity for rehabilitation.
This § 5032 factor assesses the juvenile's past experiences with treatment, and what they reflect about whether the juvenile would likely rehabilitate through juvenile treatment. Some courts have limited this factor to formal juvenile treatment or counseling. Where the juvenile has not received such treatment, these courts have found the factor neutral. see, e.g., United States v. Juvenile Male, No. 14-CR-645 (JFB), 2015 WL 6550344, at *10 (E.D.N.Y. Oct. 23, 2015), or to favor continued juvenile status, see, e.g., United States v. Leon D.M., 953 F.Supp. 346, 349 (D.N.M. 1996). Others have considered a wider range of attempted correctives or interventions, formal and informal, including to social workers, therapists, school guidance counselors, and substance abuse programs. See, e.g., United States v. Doe, 145 F.Supp.3d 167, 187 (E.D.N.Y. 2015); A.O, a Male Juvenile, 2016 WL 4197597, at *9-10. The Court here takes this broader approach, on the premise that such experiences, failed or successful, have potential to shed light on the juvenile's capacity to rehabilitate. See Juvenile Male No. 1, 47 F.3d at 71-72.
C.F. has no record of juvenile delinquency. He thus has no record of formal treatment following an adjudication of delinquency. In fact, before his arrest in this case, C.F., despite his various deficiencies, traumas, and behavioral issues, appears never to have had any assistance from any mental health professional apart from social workers at his mainstream schools. See Pearson Rpt. 7, 14 ("[H]e never had formal mental health intervention or treatment in the community, and although it was recommended more than once in the IEPs [individualized education programs], he was not transferred to a special school.")
Counseling at Hostos: As noted, at Hostos, C.F. received counseling from social worker Dalmau and others. These educators' efforts, and their genuine affection for C.F., were impressive. Dalmau testified that he advised C.F. not to commit crimes or sell drugs. Tr. 222-23, 229. As the Government fairly notes, that C.F. did not heed this sensible guidance may suggest resistance to course correction.
Post-arrest juvenile detention: Since his arrest, C.F. has been held — for the first time in his life — in juvenile detention. He is housed at the Essex County Juvenile Detention Center in New Jersey, where he attends Sojourn High School, a school for middle and high-school age youth awaiting adjudication of claims of delinquency. He has been evaluated by a psychiatrist and is being seen by a medical social worker. As to behavior, C.F. has not incurred any disciplinary infractions at Sojourn since his juvenile detention has begun. He has been commended for peaceful behavior, joined the facility's church group, and responded well to the juvenile setting. See Orloff Rpt. 20-21 & Ex. 16; Pearson Rpt. 7.
As to academic work, after arriving at Sojourn, C.F. was given an adult basic education test to determine the academic level that best matched his abilities. He was placed in a 3rd-grade level class. In his first quarter, C.F. earned 2 As (in English and United States History) and 6 Bs (in Geometry, General Science, Physical Science, Literacy, Health, and Physical Education). In his second quarter, C.F. earned 6 As (in Art, Geometry, English, General Science, United States History, and Literacy); and 2 Bs (in Spanish and Computers). Comment entries on C.F.'s report card state either "good class participation" or "steady progress," or both, for several classes; for no class are the entries "disruptive — poor conduct" or "inattentive/distracted" checked. Although some of C.F.'s improved performance is likely due to the effectively mandatory nature of attendance at Sojourn, these grades and favorable comments also fairly reflect a new-found
Mitigation specialist Orloff credibly testified that, based on her interviews with Sojourn personnel — including two social workers, a mental health supervisor, and a physician — C.F. is benefitting from an academic environment in which classes are smaller, structured and tailored to his needs, and classmates are at his level, see Tr. 259-60 ("Nobody is making fun of him. Nobody is calling him retarded. He can ask [a teacher] one on one for help. He is not afraid to raise his hand anymore."), and is fitting in socially. Tr. 262. Dr. Pearson, who also visited Essex, similarly reported that C.F. is engaged in schoolwork, benefitting from small classes (3-4 students per class), and has not had any "behavior issues." Dr. Pearson testified that C.F. has acknowledged his earlier alcohol abuse — he has not had access to alcohol at Essex — and is working on it with counselors. Tr. 289, 328, 332-33.
The data from Essex and Sojourn reflecting C.F.'s behavioral and academic progress while in juvenile detention is, of course, preliminary. On the issue of C.F.'s likelihood of rehabilitation, it is far from conclusive. But C.F.'s progress since beginning juvenile detention is noteworthy because it has occurred under the circumstances in which the Hostos educators predicted that C.F. would advance. They stated that C.F. needed a structured academic environment, intensive one-on-one instruction, and emotional support. See, e.g., Tr. 208 (Stillwell); Tr. 173 (Hasan). Dr. Pearson recommended the same arrangement, plus inpatient substance abuse treatment, individual and group psychotherapy, and cognitive remediation — all of which C.F. is receiving. Pearson Rpt. 14-15; Tr. 327-30.
While C.F.'s current experience does not reveal how he would adapt if found delinquent and assigned to a long-term juvenile treatment program, C.F.'s experience at Essex and Sojourn since December 2015 is as close a proxy as exists. On the basis of C.F.'s progress since then, and based on the Hostos educators' assessment that C.F. would respond favorably to a rehabilitative program of similar design, the Court finds that C.F.'s response to past treatment efforts strongly disfavors transfer.
A district court need not identify a specific program that would accept a juvenile delinquent for official detention, but it must inquire into the availability of programs suitable to treat the juvenile. See Nelson I, 68 F.3d at 590-91. The Government, which bears the burden of persuasion, must do more than assert that suitable programs are unavailable. It must show "that it has investigated various options but is still unable to find a suitable and available program." Id. Because the burden is the Government's, "a court cannot require the defendant to locate his own correctional facility." Id. at 591. The Court must base its determination of whether a better likelihood of rehabilitation exists in juvenile detention or adult incarceration on a comparison between juvenile and adult facilities. Id.
Far from finding that the Government has shown the unavailability of suitable programs, the record reflects, and the Court here finds, that juvenile detention facilities suitable for C.F. do exist. The
Moreover, Brustman attests, to secure a contract with the BOP, a contractor must have met a series of requirements regarding its programs. Among the requirements relevant to C.F.'s needs are that: (1) Each federal juvenile in custody receive at least 50 hours of formal quality programming per week, including, as needed, programs relating to literacy, id. ¶ 9; (2) the facility's formal programs be "meaningful, measurable, and responsive to the educational, cultural, emotional, physical and spiritual needs" of the population, id. ¶ 10; (3) the facility develop an individual program plan ("IPP") for each juvenile, id. ¶ 10-11; (4) each juvenile receive a minimum of four hours of school per weekday at the appropriate level, whether it be elementary, secondary, or more advanced, id. ¶ 12; (5) the facility supply vocational training, id. ¶ 14; and (6) the facility provide an "independent living preparation" course as a supplement to the juvenile's formal education, which must include modules on gang awareness, crime victim awareness, and cognitive skills, id. ¶ 15.
Significant in light of C.F.'s particular needs, the contractor is required to provide, to all juveniles, a minimum of 30 hours of substance abuse education, id. ¶ 16, and, to juveniles found to need it, chemical dependency treatment, which must include weekly group and individualized counseling by therapists who are certified addiction counselors, id. ¶ 17. The contractor must also provide counseling and psychological services consistent with the needs of each juvenile, based on assessment and a clinical diagnosis; the juvenile's IPP should address treatment needs, including for emotional disturbance and mental illness. Id. ¶ 18. Assessments of the juvenile must be conducted within two weeks of arrival and must address the needs of juveniles with histories of learning disability, substance abuse, mental illness and retardation, emotional disturbance, violence, and gang involvement. Id. ¶¶ 24-25.
On the basis of this account by the BOP, these two facilities, at a minimum, are available to C.F. and suited for his needs.
The Court finds otherwise. Without diminishing the good-faith efforts that the BOP's personnel at its adult facilities would surely make to treat C.F., the Government has not shown that the programs at these facilities for juveniles are equal, let alone superior, to those at the facilities with which it contracts that are dedicated specifically to the needs of juveniles. And even assuming comparable programming, the Government has not represented that, if housed at a federal prison, C.F. would be kept separate from adult offenders. C.F.'s recent experience at the juvenile facility in New Jersey is strong evidence that — as his Hostos teachers had predicted — his rehabilitation depends on removing him from negative adult and environmental influences. The Court's firm conclusion is that C.F. is more likely to rehabilitate if housed in a treatment facility far afield — in terms of population and geography — from the terrain in which his gang activity occurred. The Court is skeptical that, if housed in an adult facility and daily encountering hardened and violent offenders in their 20s, 30s, and beyond, C.F. will mature and develop productive life skills.
The Court therefore finds that the sixth § 5032 factor here strongly disfavors C.F.'s transfer. C.F.'s ability to rehabilitate will be significantly enhanced by immersion in a juvenile treatment facility like the one in which he is presently situated.
Since the transfer hearing, the Court has given focused attention to the § 5032 factors. Considered in isolation, four of these factors strongly favor juvenile treatment, one strongly favors transfer to adult status, and a sixth is neutral. That tabulation is misleading, however, because the single most important individual factor (the nature of the offenses charged) favors transfer, and because, as the foregoing discussion reflects, the four factors that favor juvenile treatment materially overlap. Viewing the factors in combination, this is a close case, on which reasonable minds may differ.
In the end, the Court's judgment, viewing the six factors together, is that the interests of justice do not favor transfer to adult prosecution. The Government has not proven, as it must to attain transfer, "that [C.F.'s] rehabilitation is not likely." Nelson II, 90 F.3d at 641 (emphasis in original). Rather, the assembled record supports that C.F. is a work in progress.
The Court accordingly denies the Government's motion to transfer. An order as to next steps in this matter will issue shortly.
SO ORDERED.
