United States Court of Appeals

                         FOR THE EIGHTH CIRCUIT



                               No. 96-2485WA


United States of America,        *
                                 *
         Plaintiff/Appellee,     *    Appeal from the United States
                                 *    District Court for the
                                 *    Western District of Arkansas.
                                 *
A.D.J., a minor,                 *
                                 *
         Defendant/Appellant.    *



                      Submitted: February 10, 1997

                          Filed: March 10, 1997



Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and
BATTEY,* Chief District Judge.


BATTEY, Chief District Judge.

     Juvenile male A.D.J. appeals the district court’s2 order
transferring him from juvenile to adult court for the purpose of
criminal prosecution. A.D.J. was charged with an act of juvenile
delinquency in violation of 18 U.S.C. § 5032. The information
charges that he and three other males aided and abetted each other
in an assault of a person having lawful charge, custody, and
control of mail matter and other property of the United States with


     *
      The Honorable Richard H. Battey, Chief United States
District Judge for the District of South Dakota, sitting by
designation.
     2
      The Honorable Harry F. Barnes, United States District
Judge, Western District of Arkansas.
intent to rob, steal, and purloin such mail matter (18 U.S.C.




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§ 2114) and use of a firearm during and in relation to the assault
and robbery (18 U.S.C. § 924(c)).


     This   court     has   jurisdiction.   Under   the   collateral   order
exception, orders transferring juveniles for adult prosecution are
appealable. Cohen v. Beneficial Indus. Loan Corp., 

, 

, 

(1949), cited in United States v.
A.W.J., 

(8th Cir. 1986)


     The crimes were alleged to have been committed on March 14,
1996. On April 4, 1996, the United States Attorney for the Western
District of Arkansas, acting pursuant to his delegated authority
under 28 C.F.R. § 0.57, filed a certification pursuant to the
Federal Juvenile Delinquency Act (18 U.S.C. § 5032) requesting that
A.D.J. be transferred to the district court for trial as an adult
rather than be surrendered to the appropriate legal authority of
the state of Arkansas.


     On April 11, 1996, the district court held an evidentiary
hearing on the government’s motion. At the conclusion of this
hearing, the court issued its order transferring A.D.J. to the
district court for adult prosecution.


     A transfer of juveniles to adult court is governed by 18
U.S.C. § 5032.   The statute provides in part that, “Evidence of the
following factors shall be considered, and findings with regard to
each factor shall be made in the record . . . .” The statute
requires the district court to consider six specific 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;

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4.   The   juvenile’s   present   intellectual   development   and
     psychological maturity;




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     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 behavioral problems.


     This court reviewed the transcript of the April 11 hearing
before the district court.              In the consideration of these six
factors, the district court concluded that a transfer for adult
prosecution would be “in the interest of justice” within the
meaning of section 5032. The court found that A.D.J. was 16 years
old (soon to be 17) at the time of the commission of the alleged
offense; that his mother works during the day and the only adult
presence in the home is a grandmother; that the mother is concerned
about her son and sought counseling when she felt at one time that
his life was turning the wrong way;                that the offense was a crime
of violence involving the use of a firearm which carried with it
the potential harm to the life of the victim and indeed caused the
victim’s shock and trauma; that although A.D.J. had no criminal
record, he had been involved in previous criminal activity and
antisocial conduct. One previous incident involved the mother,
another a stolen car, and still others involved suspension from
school    and   disorderly      behavior.        The   court    addressed     A.D.J.’s
intelligence and maturity under the fourth factor, finding that
A.D.J. was      at     times   “hostile,        resentful,     and   unable   to    take
directions or discipline.” In applying the fifth factor, the court
stated that the mother is concerned that counseling had been
attempted,      but    in   essence,    A.D.J.      has   not   responded     to    such
attempts at behavior modification. Finally, the court, in applying
the sixth factor of then-current availability of programs designed
to treat the juvenile behavioral problems, found that there were
few available programs to treat the juvenile’s problem, and that
the state facilities for supervision were overburdened by the large
number of cases assigned to probation officers.

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6
     After considering these six statutory factors, the district
court issued its order that A.D.J. should be tried as an adult in
the district court.


     This court has carefully reviewed the record, and based upon
this review finds that the district court’s findings are not
clearly erroneous. See Fed. R. Civ. P. 52(a).   We find that the
district court did not abuse its discretion in ordering A.D.J.’s
transfer to adult court. Accordingly, the order of the district
court is affirmed.


     A true copy.


          Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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