Petition for Writ of Certiorari — Juvenile Female, Petitioner v. United States

No.

In the

Supreme Court of the United States



JUVENILE FEMALE, aka Diablita,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

____________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JESSE M. SIEGEL

Counsel of Record

LAW OFFICE OF JESSE M. SIEGEL

Attorneys for Defendant-Appellant

The Woolworth Building

233 Broadway, Suite 707

New York, New York 10279

(212) 207-9009

jessemsiegel@aol.com

QUESTION PRESENTED FOR REVIEW

Whether a district court errs when it gives too much weight to the

seriousness of charged offenses in deciding whether to transfer a juvenile to adult

status, in light of the need to treat juveniles differently than adults, as established

by Supreme Court precedent and intended by Congress in enacting the Juvenile

Justice and Delinquency Prevention Act.

i

PARTIES TO THE PROCEEDING

There were no additional parties to the original proceeding before the district

court that issued the judgment we petition the Court to review.

.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .............................................................. i

PARTIES TO THE PROCEEDING ......................................................................... ii

TABLE OF AUTHORITIES .....................................................................................v

OPINIONS BELOW ..................................................................................................2

JURISDICTION.........................................................................................................2

STATUTORY PROVISIONS INVOLVED .............................................................2

STATEMENT OF THE CASE ..................................................................................4

A. Background .................................................................................................4

B.

1.

The Charges ........................................................................................4

2.

The Transfer Motion and District Court Decision .............................6

The Appeal .................................................................................................8

REASONS FOR GRANTING THE PETITION .......................................................9

I.

The Court’s Sentencing Decisions Recognize Juveniles are

Different from Adults .................................................................................9

II.

Congress has Mandated that Juveniles be Treated Differently Than

Adults........................................................................................................14

III. Giving Too Much Weight to the Seriousness of the Offenses

Effectively Deprives Juveniles Accused of Violent Crimes of the

Protections of the JJDPA, Contrary to Congress’s Intent ........................17

IV. Transfer to Adult Status has a Dramatic Effect on Sentences Faced

by Juvenile Defendants.............................................................................18

V. This Case Illustrates How Weighing the Seriousness of the Offense

Too Heavily Results in a Decision Contrary to the Court’s

Jurisprudence Regarding the Sentencing of Juveniles and

Congress’ Intent in Enacting the JJDPA ..................................................19

CONCLUSION ........................................................................................................31

iii

APPENDIX A

Summary Order of the United States Court of Appeals

for the Second Circuit, Filed December 3, 2019 ...................... A-1

APPENDIX B

Memorandum and Order of the United States District Court

for the Eastern District of New York, Filed June 11, 2018....... B-1

APPENDIX C

Unsealing Order of the United States District Court for the

Eastern District of New York, Filed June 11, 2018 .................. C-1

APPENDIX D

18 U.S.C. § 5032 – Delinquency Proceedings in

District Courts; Transfer for Criminal Prosecution .................. D-1

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) ....................................................................................... 10, 11

Graham v. Florida,

560 U.S. 48 (2010) ............................................................................. 10, 11, 12, 13

Miller v. Alabama,

567 U.S. 460 (2012) ................................................................................. 11, 12, 13

Montgomery v. Louisiana,

136 S.Ct. 718 (2016) .............................................................................................12

Roper v. Simmons,

543 U.S. 551 (2005) ....................................................................................... 10, 12

Thompson v. Oklahoma,

487 U.S. 815 (1988) ................................................................................................9

Trop v. Dulles,

356 U.S. 86 (1958) ................................................................................................10

United States v. A.R.,

38 F.3d 699 (3rd Cir. 1994) ..................................................................................14

United States v. C.F.,

225 F. Supp.3d 175 (S.D.N.Y. 2016)............................................................. 22, 23

United States v. Doe,

49 F.3d 859 (2d Cir. 1995.) ...................................................................................15

United States v. John Doe,

871 F.2d 1248 (5th Cir. 1989)...............................................................................16

United States v. Juvenile Female,

786 Fed.Appx. 313 (2d Cir. 2019) ..........................................................................2

United States v. Juvenile Male No. 1,

47 F.3d 68 (2d Cir. 1995) ............................................................................... 14, 15

v

United States v. Juvenile Male #2,

761 F.Supp. 2d 27 (E.D.N.Y. 2011) .....................................................................18

United States v. Juvenile Male,

11-CR-717 (JFB), 2013 WL 461220 (Jan. 30, 2013) ...........................................18

United States v. Juvenile Male,

12-CR-317 (JFB), 2012 WL 6043271 (Dec. 3, 2012) ..........................................18

United States v. Juvenile Male,

14-CR-645 (JFB), 2015 WL 6550344 (Oct. 23, 2015) .........................................17

United States v. Juvenile Male,

269 F.Supp.3d 29 (E.D.N.Y. 2017) ......................................................................17

United States v. Juvenile Male,

316 F.Supp.3d 553 (E.D.N.Y. 2018) ....................................................................17

United States v. Juvenile Male,

327 F.Supp.3d 573 (E.D.N.Y. 2018) ....................................................................17

United States v. Juvenile Male,

754 F.Supp.2d 569 (E.D.N.Y. 2010) ....................................................................18

United States v. Juvenile Male,

844 F.Supp.2d 312 (E.D.N.Y. 2011) ....................................................................18

United States v. Juvenile Male,

844 F.Supp.2d 333 (E.D.N.Y. 2012) ....................................................................18

United States v. Nelson,

68 F.3d 583 (2d Cir. 1995) ....................................................................... 15, 16, 22

United States v. Nelson,

90 F.3d 636 (2d Cir. 1996) ............................................................................. 15, 16

United States v. Ramirez,

297 F.3d 185 (2d Cir. 2002) ..................................................................................15

vi

Statutes

New York Penal Law section 20.00 ..........................................................................5

New York Penal Law section 105.15 ........................................................................5

New York Penal Law section 125.25(1) ....................................................................5

Title 18, United States Code, section 1512(1) ...........................................................5

Title 18, United States Code, section 1512(k) ...........................................................5

Title 18, United States Code, section 1959(a)(1).......................................................6

Title 18, United States Code, section 1959(a)(2).......................................................6

Title 18, United States Code, section 1959(a)(5).......................................................5

Title 18, United States Code, section 1962(c) ...........................................................5

Title 18, United States Code, section 1962(d) ...........................................................5

Title 18, United States Code, section 1963 ................................................................5

Title 18, United States Code, sections 5031 - 5042 ............................................ 9, 14

Title 18, United States Code, section 5032 ............................................. 2, 5, 6, 8, 15

Title 18, United States Code, section 5037(c)(2)(A)(i) ...........................................18

Title 28, United States Code, section 1254(1) ...........................................................2

vii

No.

In the

SUPREME COURT of the UNITED STATES

October Term, 2019

JUVENILE FEMALE,

Petitioner,

against

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

________________

PETITION FOR A WRIT OF CERTIORARI

_________________

Petitioner Juvenile Female (“JF”) respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United States Court of Appeals

for the Second Circuit entered in this proceeding on December 3, 2019.

1

OPINIONS BELOW

The opinion of the Second Circuit dated December 3, 2019, attached hereto

as Appendix A, is reported at United States v. Juvenile Female, 786 Fed.Appx. 313

(2d Cir. 2019) (Summary order).

JURISDICTION

This petition for certiorari is being filed within 90 calendar days of the

Second Circuit decision. This Court’s jurisdiction is invoked under Title 28, United

States Code, section 1254(1).

STATUTORY PROVISIONS INVOLVED

Title 18, United States Code, section 5032, provides, in relevant part 1:

0F

A juvenile alleged to have committed an act of juvenile

delinquency … shall not be proceeded against in any

court of the United States unless the Attorney General,

after investigation, certifies to the appropriate district

court of the United States that (1) the juvenile court or

other appropriate court of a State does not have

jurisdiction or refuses to assume jurisdiction over said

juvenile with respect to such alleged act of juvenile

delinquency, (2) the State does not have available

programs and services adequate for the needs of

juveniles, or (3) the offense charged is a crime of

violence that is a felony …, and that there is a substantial

Federal interest in the case or the offense to warrant the

exercise of Federal jurisdiction.

…

1

18 U.S.C. § 5032 is set forth in its entirety at Appendix D.

2

A juvenile who is alleged to have committed an act of

juvenile delinquency and who is not surrendered to State

authorities shall be proceeded against under this chapter

unless he has requested in writing upon advice of counsel

to be proceeded against as an adult, except that, with

respect to a juvenile fifteen years and older alleged to

have committed an act after his fifteenth birthday which

if committed by an adult would be a felony that is a

crime of violence or … criminal prosecution on the basis

of the alleged act may be begun by motion to transfer of

the Attorney General in the appropriate district court of

the United States, if such court finds, after hearing, such

transfer would be in the interest of justice.…

Evidence of the following factors shall be considered,

and findings with regard to each factor shall be made in

the record, in assessing whether a transfer would be in

the interest of justice: the age and social background of

the juvenile; the nature of the alleged offense; the extent

and nature of the juvenile’s prior delinquency record; the

juvenile’s present intellectual development and

psychological maturity; the nature of past treatment

efforts and the juvenile’s response to such efforts; the

availability of programs designed to treat the juvenile’s

behavioral problems. In considering the nature of the

offense, as required by this paragraph, the 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.

…

3

STATEMENT OF THE CASE

A. Background.

JF is charged in a superceding juvenile information with participating in a

highly-publicized murder conspiracy involving members and associates of the La

Mara Salvatrucha street gang, commonly known as MS-13. The government

alleges that, on April 11, 2017, JF, then almost 17 years and 5 months old, and

another juvenile female, both associated with MS-13, lured five young men to a

park in Central Islip, on Long Island, where the men were ambushed by members

of MS-13. Four of the men were killed while one escaped.

JF was arrested on July 13, 2017 and charged by juvenile information with

participating in the murder conspiracy. Subsequently, a superceding juvenile

information was filed adding charges that she had attempted to obstruct a grand

jury investigation of the incident by destroying evidence, including a cell phone,

SIM card, and clothing worn during the murders.

1. The Charges.

Count One of the Superceding Juvenile Information charged that, between

about January 1, 2016 and the date of the superceding information, in the Eastern

District of New York and elsewhere, JF was employed by and associated with MS4

13, and knowingly and intentionally conducted and participated in its affairs

through a pattern of racketeering activity, in violation of Title 18, United States

Code, sections 1962(c), 1963 and 5032 et seq. It included six racketeering acts.

Racketeering Act One alleged a conspiracy to murder rival gang members,

in violation of New York Penal Law sections 125.25(1) and 105.15. Racketeering

Acts Two through Five charged her and others with knowingly and intentionally

causing the deaths of four named individuals, on April 11, 2017, in violation of

New York Penal Law Sections 125.25(1) and 20.00. Racketeering Act Six charged

JF with conspiring to obstruct a federal grand jury investigation between about

April 11, 2017 and July 13, 2017, by destroying a cell phone, a SIM card and an

article of clothing, in violation of 18 U.S.C. sections 1512(1) and 1512(k).

Count Two charged JF with participating in a racketeering conspiracy by

committing Racketeering Acts One through Six, in violation of Title 18, United

States Code, sections 1962(d), 1963 and 5032 et seq.

JF was charged in Count Three with conspiring to intentionally and

knowingly murder one or more rival gang members between about March 2017

and April 2017, in violation of Title 18, United States Code, sections 1959(a)(5)

and 5032 et seq.

Counts Four through Seven charged JF and others with knowingly and

intentionally murdering each of the four individuals, in violation of Title 18,

5

United States Code, sections 1959(a)(1), 2 and 5032 et seq. (A.4-13.)

2. The Transfer Motion and District Court Decision.

The government filed a motion, pursuant to 18 U.S.C. § 5032, to transfer JF

to adult status for prosecution. The government relied primarily on the seriousness

of the offense in its analysis of the section 5032 factors.

In her response to the transfer motion, and discussion of the factors, JF

argued she had demonstrated great potential for rehabilitation at a juvenile

detention center over the course of almost a year, by thriving in its structured

environment and excelling in her schoolwork at the high school there. Attached to

her response were a report from a psychologist strongly endorsing JF’s potential

for rehabilitation; a report from a mitigation specialist, which detailed her social

history and terrible childhood and adolescence; school records; and a letter from

the principal of the high school at the juvenile detention center.

Subsequently, JF submitted files from Child Protective Services, describing

how, starting at age 13, she had been the victim of statutory rape by a 19 year-old

“boyfriend,” and a letter from a social worker at the juvenile detention center,

providing additional evidence of her very positive response to rehabilitation efforts

there.

The government did not have JF examined by a psychologist or other

6

qualified mental health expert, or submit a report from such a professional.

No testimony was taken at the transfer hearing. The government entered

various documents into evidence, including JF’s psychological and mitigation

reports; crime scene photographs and autopsy reports; and a transcript of a

telephone call from JF’s then boyfriend, who was in jail; the government alleged

he was a member of MS-13, and that, in the call, JF admitted her knowing

participation in the murder conspiracy.

In its June 11, 2018, decision granting the transfer motion (Appendix B), the

district court analyzed the section 5032 factors. It found the nature of the alleged

offenses “overwhelmingly” favored transfer; JF’s age and social background

“strongly” favored transfer; JF’s present intellectual development and

psychological maturity were neutral factors; and her lack of a juvenile record,

nature of past treatment efforts and JF’s response to them, and the availability of

programs designed to treat her behavioral problems, weighed against transfer. (B2-3 2.) The court concluded, “Although some factors weigh against transfer, they do

1F

not outweigh the other factors that, in combination, overwhelmingly favor

transfer.” (B-3.) Thus, the court “determined in its discretion that treating the

defendant as an adult in this case will serve the interests of justice.” (Id.)

2

References to “B-” are to Appendix B to this petition.

7

B. The Appeal.

The Second Circuit rejected Petitioner’s appeal, finding she had not

established the district abused its discretion in granting the government’s transfer

motion. The Court found the district court made findings as to each of the six

factors it was required to consider pursuant to 18 U.S.C. § 5032. The Second

Circuit held the district court was not required to weigh each factor equally, and

was justified in according greater weight to the seriousness of the crimes alleged,

which included intentional murder. (A-4, 5 3.) The Court also rejected Petitioner’s

2F

argument that the district court erred by not only assuming, for purposes of the

transfer motion, that she was guilty of the offense, but by also accepting the

government’s factual allegations not included in the Juvenile Information. (A-5.)

The Second Circuit noted Petitioner bore a “‘heavy burden’” seeking to

overturn the district court’s decision to transfer, and that they were “unaware of

any case in which we have done so.” (A-4.) The Court did not do so here.

3

References to “A-” are to Appendix A filed with this petition.

8

REASONS FOR GRANTING THE PETITION

Review is appropriate because the issue presented is one of exceptional

importance, with dramatic sentencing consequences for the youngest of

defendants: Whether juveniles accused of murder and other serious violent crimes

should be treated differently than adults accused of the same crimes.

We submit the answer to this question is “Yes,” in light of the Court’s

jurisprudence finding that juveniles are different from adults in ways relevant to

sentencing, and the presumption of juvenile treatment for juveniles codified in the

Juvenile Justice and Delinquency Prevention Act (“JJDPA”), 18 U.S.C. §§ 5031 5042, which does not exclude juveniles accused of even the most heinous crimes

from its protections. By giving determinative weight to the seriousness of the

offenses charged, a court (as here) nullifies the protection for juveniles required by

the Court’s decisions and the JJDPA, and effectively exempts children accused of

such serious crimes from the JJDPA, despite the fact that the statute itself does not

do so.

I.

The Court’s Sentencing Decisions Recognize Juveniles are Different from

Adults.

In a long series of cases involving the sentencing of juvenile defendants,

relying upon, reflecting and advancing “evolving standards of decency,” the Court

has recognized that juveniles are different from adults. First was Thompson v.

9

Oklahoma, 487 U.S. 815, 823 (1988) (quoting Trop v. Dulles, 356 U.S. 86, 101

(1958)(Plurality opinion), where the Court found that, in light of “‘evolving

standards of decency,’” the Eighth and Fourteenth Amendments forbid executing

children under the age of 16 at the time of their crimes.

In Roper v. Simmons, 543 U.S. 551 (2005), the Court found the Eighth and

Fourteenth Amendments forbid the execution of children younger than 18 at the

time of their crimes. The Court focused on three ways in which juveniles are

different than adults. They lack maturity, which results in “impetuous and illconsidered decisions”; they are “more vulnerable and susceptible to negative

influences and outside pressures,” partly because they “have less control, or less

experience with control, over their own environment”; and their characters are less

well-formed than those of adults, their personality traits “more transitory, less

fixed.” Id. at 569-70.

Discussing retribution, one of the penological justifications for the death

penalty, the Court referred to its analysis in Atkins v. Virginia, 536 U.S. 304

(2002), of how the “‘lesser culpability of the [intellectually disabled] offender’”

reduces the case for retribution, and said “[t]he same conclusions follow from the

lesser culpability of the juvenile offender.” Id. at 571.

The Court extended this line of Eighth Amendment analysis to consider

punishments imposed on juveniles aside from the death penalty in Graham v.

10

Florida, 560 U.S. 48 (2010), where it found the Eighth Amendment prohibits

imposing a sentence of life without parole on a juvenile not convicted of homicide,

as “[d]efendants who do not kill, intend to kill, or foresee that life will be taken are

categorically less deserving of the most serious forms of punishment than are

murderers.” Id. at 69.

In Miller v. Alabama, 567 U.S. 460 (2012), the Court found the Eighth

Amendment forbids mandatory sentences of life imprisonment without parole for

juveniles, largely based on scientific evidence showing that juvenile brains are

different from adult brains in ways relevant to sentencing, and continue to be so

into the mid-20s. The Court relied upon all the reasons and factors that had caused

it to find the Eighth Amendment prohibits executing juveniles (and intellectually

impaired adults), and imposing life sentences on juveniles convicted of nonhomicide offenses, and identified “two strands of precedent reflecting our concern

with proportionate punishment.” Id. at 2463. One strand “adopted categorical

bans on sentencing practices based on mismatches between the culpability of a

class of offenders and the severity of a penalty,” and included finding, in Atkins,

supra, that the Eighth Amendment prohibits executing intellectually disabled

defendants. The second strand, evoked by the Court’s holding in Graham, supra,

“liken[ing] life without parole for juveniles to the death penalty itself,” prohibited

mandatory imposition of capital punishment, and instead required individualized

11

consideration of a defendant’s characteristics and the details of the crime. Id. at

2463-64.

While the Court did not prohibit life imprisonment for all juveniles, it found,

[G]iven all we have said in Roper, Graham, and

this decision about children’s diminished

culpability and heightened capacity for change, we

think appropriate occasions for sentencing

juveniles to this harshest possible penalty will be

uncommon. That is especially so because of the

great difficulty we noted in Roper and Graham of

distinguishing at this early age between “the

juvenile offender whose crime reflects unfortunate

yet transient immaturity, and the rare juvenile

offender whose crime reflects irreparable

corruption.”

Id. at 2469 (quoting Roper, 543 U.S. at 573; Graham, 130 S.Ct. at 2026-27).

Finally, in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Court found

Miller applies retroactively, as it created a new substantive rule of law. The Court

said Miller created a class of juvenile defendants convicted of homicides who may

not be sentenced to life without parole without violating the Eighth Amendment:

those whose crimes reflect “‘unfortunate yet transient immaturity.’” Id. at 734

(quoting Miller, 132 S.Ct. at 2460 (quoting Roper, supra, 543 U.S. at 573)).

The Court found children different for sentencing purposes in three primary

ways:

First, children have a “lack of maturity and an

underdeveloped sense of responsibility,” leading to

recklessness, impulsivity, and heedless risk-taking.

12

Second, children “are more vulnerable to negative

influences and outside pressures,” including from their

family and peers; they have limited “control over their

own environment” and lack the ability to extricate

themselves from horrific, crime-producing settings. And

third, a child’s character is not as “well-formed” as an

adult’s; his traits are “less fixed” and his actions less

likely to be “evidence of irretrievable depravity.”

Id. (quoting Miller, supra, 132 S.Ct. 2464 (other citations omitted)).

The Montgomery Court said that, “[a]s a corollary to a child’s lesser

culpability,” Miller recognized the “‘distinctive attributes of youth diminish the

penological justifications’ for imposing life without parole on juveniles.” Minors

are less blame worthy than adults, making the case for retribution weaker; they are

immature, reckless and impetuous, and, as a result, “less likely to consider

potential punishment,” undercutting the deterrence rationale; and there is less need

for incapacitation, as ordinary adolescent development lessens the likelihood they

will forever be dangerous to society. Id. at 733 (citing Miller, 132 S.Ct. at 2465).

Moreover, “Rehabilitation cannot justify the sentence, as life without parole

‘forswears altogether the rehabilitive ideal.’” Id. (citing Miller, supra, 132 S.Ct. at

2465 (quoting Graham, supra, 560 U.S. at 74)).

13

II. Congress has Mandated that Juveniles be Treated Differently Than

Adults.

The Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. §§ 50315042 (“JJDPA”), is designed to ensure that juvenile defendants are treated

differently than adults where possible. It creates a presumption that juveniles will

be treated as such, and creates a burden on the government to prove it would be in

the interests of justice to deny a juvenile its protections. It does not exclude from

this presumption juvenile defendants accused of even the most heinous crimes.

The six factors it requires a court to consider when deciding a motion to transfer a

juvenile to adult status provide a framework to decide whether the juvenile has the

potential for rehabilitation, and should receive the benefit of its protections, or does

not.

The JJDPA is designed “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. Juvenile Male No. 1, 47 F.3d 68, 71

(2d Cir. 1995) (quotation omitted). The JJDPA establishes a presumption that

juveniles should receive the special treatment afforded by the act and not be treated

as adults. United States v. A.R., 38 F.3d 699, 706 (3rd Cir. 1994) (“The statute

clearly intends a presumption of juvenile treatment[.]”); Juvenile Male No. 1, 47

F.3d at 71.

Where, as here, the government seeks discretionary transfer of a juvenile

14

who is at least 15 years old but less than 18 at the time of the alleged crime, the

government bears the burden of establishing by a preponderance of the evidence

that doing so is “in the interest of justice.” Id.; see United States v. Nelson, 68 F.3d

583, 588 (2d Cir. 1995)(“Nelson I”).

In determining whether transfer to adult status is “in the interest of justice,”

the primary question is whether the juvenile has the potential for rehabilitation.

United States v. Nelson, 90 F.3d 636, 640 (2d Cir. 1996) (“Nelson II”). To assess a

juvenile’s potential for rehabilitation, a district court must consider and make

specific findings as to 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 (6) “the availability of programs designed to treat the juvenile’s

behavioral problems.” 18 U.S.C. § 5032; Juvenile Male No. 1, 47 F.3d at 71. The

district court’s findings as to the factors are by a preponderance of the evidence.

United States v. Doe, 49 F.3d 859, 868 (2d Cir. 1995.)

Courts have made clear that, “[p]ermeating the transfer decision and the six

factor inquiry is the notion of rehabilitation.” Nelson II, 90 F.3d at 640. A district

court is to balance “the goal of rehabilitation” against “the threat to society posed

by juvenile crime.” Id. (quotation omitted); United States v. Ramirez, 297 F.3d at

15

193. Thus, while a particularly serious crime (as here) may be given added weight

in the analysis, Nelson I, 68 F.3d at 590, “the motion to transfer may be granted

only when the government proves that rehabilitation is not likely.” Nelson II, 90

F.3d at 641.

Therefore, commission of a very serious crime may be given more weight in

the analysis not because a juvenile who commits such a crime deserves to be

treated as an adult, in which case the statute could simply make transfer automatic

for such crimes. Rather, it is because committing such a crime may indicate a

juvenile is not likely to be rehabilitated. As the Second Circuit has noted, “[T]he

statutory factors have been identified primarily because of their impact on the

juvenile’s rehabilitative potential.” Nelson II, 90 F.3d at 640; see also United

States v. John Doe, 871 F.2d 1248, 1255 (5th Cir. 1989) (“[T]he seriousness of the

crime obviously can be given more weight than the other factors in determining

whether there is a ‘realistic chance’ of rehabilitation, and hence whether a transfer

is appropriate.”)

A district court’s decision to transfer a juvenile to adult status is reviewed

for abuse of discretion. A court abuses its discretion “when it fails to make the

required factual findings or where the findings it does make are clearly erroneous.”

Nelson I, 68 F.3d at 588 (citation omitted).

16

III. Giving Too Much Weight to the Seriousness of the Offenses Effectively

Deprives Juveniles Accused of Violent Crimes of the Protections of the

JJDPA, Contrary to Congress’s Intent.

Congress did not exclude juveniles accused of murder and other violent

crimes from the special consideration required, and protection afforded, by the

JJDPA. The seriousness of the offense is only one of six factors a court is to

consider in deciding whether transfer to adult status would be in the interest of

justice. Yet, as JF’s case illustrates (see below), in practice and effect, giving too

much weight to the seriousness of the offense easily overwhelms and colors

consideration of the other factors. This results in juveniles accused of serious

violent crimes effectively being excluded from the presumption of juvenile

treatment required by the JJDPA, even where, as here, the juveniles present

overwhelming evidence of their capacity for rehabilitation.

For example, there are eleven published and unpublished decisions of the

district court concerning government transfer motions, including this case. The

district court has granted transfer in all eleven, primarily based on the seriousness

of the crimes alleged. See United States v. Juvenile Male, 327 F.Supp.3d 573

(E.D.N.Y. 2018); United States v. Juvenile Male, 316 F.Supp.3d 553 (E.D.N.Y.

2018); United States v. Juvenile Male, 269 F.Supp.3d 29 (E.D.N.Y. 2017); United

States v. Juvenile Male, 14-CR-645 (JFB), 2015 WL 6550344 (Oct. 23, 2015);

17

United States v. Juvenile Male, 11-CR-717 (JFB), 2013 WL 461220 (Jan. 30,

2013); United States v. Juvenile Male, 12-CR-317 (JFB), 2012 WL 6043271 (Dec.

3, 2012); United States v. Juvenile Male, 844 F.Supp.2d 333 (E.D.N.Y. 2012);

United States v. Juvenile Male, 844 F.Supp.2d 312 (E.D.N.Y. 2011); United States

v. Juvenile Male #2, 761 F.Supp. 2d 27 (E.D.N.Y. 2011); and United States v.

Juvenile Male, 754 F.Supp.2d 569 (E.D.N.Y. 2010). As the Second Circuit noted

here, they have not overturned these – or any - decisions granting transfer.

It cannot be that none of the juveniles in these cases had the potential for

rehabilitation that is the focus of the JJDPA. Rather, its focus on the seriousness of

the offenses in these cases may indicate the court was concerned with the adequacy

of the punishments the defendants would have faced if not transferred to adult

status. This is not a concern of the JJDPA, under which consideration of the

seriousness of the offense is relevant only to the extent it indicates a defendant’s

potential for rehabilitation.

IV. Transfer to Adult Status has a Dramatic Effect on Sentences Faced by

Juvenile Defendants.

Under the JJDPA, a juvenile may not receive a sentence exceeding five

years. (18 U.S.C. 5037(c)(2)(A)(i).) Once transferred to adult status, a juvenile

defendant faces the same possible sentences as adults. Here, if transferred to adult

status and convicted of the crimes alleged, JF would face the possibility of life

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imprisonment. Two juveniles charged in the same incident as JF and transferred to

adult status have received terms of imprisonment of 50 and 55 years, respectively,

after pleading guilty.

V. This Case Illustrates How Weighing the Seriousness of the Offense Too

Heavily Results in a Decision Contrary to the Court’s Jurisprudence

Regarding the Sentencing of Juveniles and Congress’ Intent in Enacting

the JJDPA.

JF presented extensive evidence establishing she has great potential for

rehabilitation. This included uncontroverted evidence describing her outstanding

behavior in juvenile detention and accomplishments in school there, and reports

from a psychologist and mitigation expert showing how her tragic social history

led to her involvement in this offense.

JF presented substantial, uncontroverted evidence of her overwhelmingly

positive response to rehabilitation efforts. This included evaluations and reports

from the juvenile detention center and high school, which established that JF was

thriving in the structured and supportive environment there, had not engaged in any

negative behavior, and had developed and was pursuing pro-social goals.

Because she had not yet completed the 9th grade, JF was, after turning 18

while detained, taking Grade 9 and 10 level courses, and doing extremely well,

with 5 A’s and 2 B+’s. Her educational plan was to complete the 9th and 10th grade

so she could take New York State Regents courses the following academic year,

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and ultimately earn a New York State Regents High School Diploma.

JF’s willingness to take, work hard at, and succeed at Grade 9 and 10 level

courses demonstrated her potential for rehabilitation, as did the fact that she was

working towards a pro-social goal - taking Regents courses the next year, so she

could eventually graduate with a New York State Regents High School Diploma.

JF’s potential for rehabilitation was also evident from the way she was

described by the staff at the high school. The Principal said she “has shown the

ability to be able to establish a good rapport with our staff and has consistently

kept up with her school work … her behavior has been consistent and her school

work has been excellent.” He stated that JF was “one of our brightest, most

determined and focused students,” and he was “very pleased with this young lady

and admire[d] her commitment and efforts towards improving herself.”

All her teachers described her similarly. JF’s Computer Science teacher

stated, “[JF] is a wonderful student. She is thorough when [] working on an

assignment. [JF] works independently and participates in extracurricular activities

(Parents’ Night Spanish Interpreter). [JF] demonstrates the desire and commitment

to learning. Displays good logical reasoning and decision-making skills.” Her

Mathematics teacher, with whom she studied geometry, said, “She is focused on

completing her classwork and she asks questions when [she] needs help,”

demonstrating her openness, indeed, desire for, guidance and supervision. JF’s

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Science teacher said she was “an excellent student,” who was earning an “A,” and

exhibited “excellent behavior beside her academics.” Similarly, her Spanish

teacher reported JF had “excellent behavior in my class, no problems at all,” and

was earning an “A+.” JF’s History teacher said she was “a model student who

completes all of her assignments. Currently she has an A in my class.”

The school advocate, stated: “I have had the pleasure of working with [JF]

on several events this school year. She acted as an interpreter during our annual

open house as well as served on the welcoming committee. She completes all

assignments and is very inquisitive. She loves to learn and often adds valuable

insights to various topics.”

A letter from the Social Services Department stated that JF had made “Level

IV status” for almost her entire stay at the juvenile detention center. This meant

she had complied “with all requirements and instructions throughout the facility,”

which entitled her to special privileges, including but not limited to “later bed time,

work details and additional phone calls.” The letter further noted JF was “a

straight A student” who had made the honor roll for 2 marking periods.

All of this provided a direct answer to the very question the section 5032

factors are supposed to address: whether JF had the potential for rehabilitation – or,

more precisely, whether the government had proven JF’s rehabilitation was “not

likely.” But whereas the other section 5032 factors are subject to analysis and

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interpretation, and lead to only a prediction of how JF will respond to efforts to

rehabilitate her in the future, JF’s overwhelmingly positive response to actual

efforts to rehabilitate her at Essex County Juvenile answered the question directly

and required no interpretation or prediction. She had proven her amenability to

rehabilitation.

This is consistent with the conclusion of the psychologist who interviewed,

tested, and evaluated JF. She concluded:

JF has several protective factors that make her a good

candidate for treatment and rehabilitation. Of

significance is the high achievement and good behavior

that she is presenting while incarcerated. She is

described as highly curious, motivated and engaged. Her

cognitive and intellectual resources, lack of

psychopathology or severe personality traits, lack of

significant problems with impulsivity, and strong

commitment to returning to school, significantly increase

the probability that she will be amenable to treatment and

rehabilitation, especially if provided with appropriate

interventions.

A court deciding a transfer motion is to consider a juvenile’s social

background alongside her age at the time of the offense and current age “because

the juvenile’s life experience may shed light on [her] actual level of maturity and

[her] capacity for growth, which ultimately informs the Court’s assessment of

‘whether juvenile-type rehabilitation programs would be appropriate’ for [her].”

United States v. C.F., 225 F. Supp.3d 175, 184 (S.D.N.Y. 2016) (quoting Nelson I,

68 F.3d at 589.) A court is to make a “holistic” finding as to this factor, in order to

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gauge how a defendant’s age at the time of the offense, current age, and social

history, considered together, affect a determination of her potential for

rehabilitation. Id.

Abuse and neglect does not even begin to describe the circumstances of JF’s

life. Her mother had entered the country illegally, and was “sickly” during her

pregnancy, with trouble breathing at times, but afraid to seek care because she was

undocumented. She struggled to care for JF because she was poor and had to work,

walking in snow during winter to a fish factory and leaving JF with a babysitter.

Her mother sent JF to stay with her maternal grandparents in Honduras when

JF was about nine months old. Her aunt, then 10 years old, recalled her crying for

her mother. Though sickly, JF was not provided medical care. Still, once she

settled down, the aunt remembered JF as a “‘loving, happy and bright baby.’”

At age 3, her mother arranged for JF to be taken from her grandparents and

put in the care of a “stranger,” who was an alcoholic. One day, the “caregiver” left

JF and her own daughter unsupervised, and they were attacked by a wild dog, that

bit the other child severely. When JF, traumatized by the incident, returned to live

with her grandmother, her aunt noticed a change in her personality: “‘She was

acting weird as though she had been mistreated.’”

JF’s mother returned to Honduras and took JF to live with her, but decided

to return to the United States, and left JF with a woman who abused and neglected

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her, which form her most vivid early memories. The woman locked her in the

bathroom, forced her to kneel with a concrete block on her head and arms in the

air, made her eat dangerously prepared food, and allowed her own son to play

outside while keeping JF locked inside.

Because she had difficulty entering the United States, JF’s mother returned

and took JF to Mexico, when she was about four years old. JF “was shocked when

her mother started to abuse her,” according to the mitigation report. Only four, JF

was forced to help clean her mother’s wound from the C-Section delivery of her

fourth child and help with baby-sitting, under threat of physical abuse. When she

failed to clean the wound properly, her mother became angry and kicked her.

Although bright and interested in learning, JF was not sent to school.

Rather, at five, she was locked in their home with fulltime responsibility for caring

for her sister while her mother went to work. She felt helpless when the baby cried

for no apparent reason: “I didn’t know what to do, so I would scream to see if

someone can hear me and come to help.” Her mother beat JF if the baby was sick

or injured, and almost “‘beat her to death’” when the baby fell off a chair, to such

an extent that the belt used was in tatters. She recalled, “I felt my entire body

pounding and hot all night,” her face and body were “blue all over,” and her

mother warned her not to leave the house. When a neighbor tried to intervene, her

mother said she could discipline JF any way she wanted.

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JF’s mother moved back to Honduras when JF was about six, first near her

grandmother, but then to the town where she had been abused by the alcoholic

caregiver. She left JF and her sister with another abusive woman, who made her

care for her own children and attacked her with a stick. JF became hardened to

being abandoned by her mother: “She left me so many times that it did not matter

anymore.”

Her mother returned from Mexico and took JF and her sister to live with her

grandmother, where she was happy and allowed to attend school. At about eight,

she fell, hit her head, and lost consciousness, but was not given medical care.

When she was about nine, her mother returned from Mexico and again

uprooted JF and her sister. The mitigation expert noted, “The movements wore

down JF emotionally. She was never sure when next her mother would uproot her.

According to JF, she did not know where she was born or when she was born or

where she would be next.”

JF had mixed feelings when her aunt invited her to live with her in the

United States, as she did not want to leave her sister, who she viewed as her baby

(her sister could not move with her as she was not a U.S. citizen). JF was

concerned that, after she left, her sister would get the beatings she had endured.

JF had almost no contact with her mother once she moved to the United

States. She felt like a “stranger” in her aunt’s home, felt her aunt only cared for

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her own daughter, and cried at night, feeling angry at herself for abandoning her

sister. Her interest in doing well in school was mocked, and she was denigrated,

her aunt saying she would be just like her mother, having many children like a dog

having puppies. Another maternal aunt said her aunt bullied JF, abused her

emotionally, and punished her for things she did not do. The aunt admitted she

was not affectionate to JF, and only took her in to qualify for public assistance, as

JF was a citizen.

JF took refuge in school, where she excelled, and church. Still, she

struggled with depression and resentment. Her cousin described how JF spoke

about the horrors of her childhood and resentment about being abandoned by her

mother and left with strangers who treated her like a slave.

At the age of 13, while still in middle school, JF visited her another aunt for

Christmas and fell in love with a 19-year-old man. After graduating middle school,

JF moved to her aunt’s home to be closer to the man. Her aunt seemed unable to

keep her, and JF moved in with her boyfriend. As a 19-year-old while JF was

below the age of consent, the boyfriend repeatedly raped her, and his mother used

her as an unpaid maid, triggering unpleasant memories of her childhood. JF’s

relationship with her boyfriend deteriorated, as he abused her and cheated on her

with a friend. JF started to hate him, and was depressed, but felt trapped in the

relationship with nowhere to go. She was not yet able to enroll in school, and did

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not have a church, both of which institutions had provided refuge in Maine. The

mitigation report noted, “As depression overtook her, she had trouble eating,

sleeping, and thinking straight. ‘I couldn’t find the exit door,” she stated.”

JF lived with her boyfriend for about two years before finding the courage to

leave at the age of 15. She stayed with her aunt briefly, and then one of the aunt’s

friends, for a short period of time.

At 15, JF was homeless and without support. At 16, she took a job in a bar,

where she earned a commission based on how many drinks she could entice

patrons to buy. On her first night, she earned $100, and earned as much as $600 in

a night. She began drinking Tequila heavily, which helped her appear older than

she was, and also started working at different bars to reduce the chance that

somebody would learn she was a minor. She moved back in with her aunt, as she

was now able to contribute to expenses.

While working at one of the bars, JF met a young man (alleged by the

government to be a member of MS-13). Although she shied away initially, he

seemed different from other men she had known, and said he just wanted to be her

friend. She was impressed with his sensitivity. She said “she felt part of a love

story because of the way [he] approached her,” and the affection he showed her.

Her aunt did not like him and refused to let JF have him over when she learned he

was a gang member, because she did not want him to be a bad influence on her

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son. JF felt her aunt was forcing her to choose, whereas all she “wanted was to

have a family.” JF moved in with the man, partially persuaded by his promise to

help bring her sister to the United States; she still felt guilty for leaving her behind.

Contrary to the district court’s finding on this factor, JF’s emotional

maturity, age at the time of the transfer hearing, and social history, considered

“holistically,” strongly weighed against transfer. In her report, the psychologist

discussed “developmental maturity,” which “is affected by age, but also by

biological or environmental influences, such as family dysfunction, learning

deficits, mental illness or poverty.” Underlying the concept of developmental

maturity are three factors: “cognitive abilities, autonomy, and emotional maturity.”

As to the first factor, the psychologist found “[JF] functions at least within

the average range of intellectual or cognitive functioning.”

However, the mitigation report continued, “[JF]’s main delay in

development appears to be in the area of autonomy, which refers to someone’s

ability to resist pressures from others, to have clarity in self-concept, to have high

self-esteem, or to be aware of strengths and weaknesses.” The psychologist stated,

“[JF] had an upbringing marked by adverse experiences, including abuse, neglect,

and abandonment.” Her frequent moves, among households and caregivers, made

it “difficult for her to establish stable attachments and contribut[ed] to an overall

sense of emotional instability.” She was forced to take on responsibilities beyond

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her age, like caring for her infant sister when only five. As a result of the multiple

separations and sense of abandonment, JF felt she need to be tough to survive.

The psychologist noted, JF “longed for a family and a sense of being taken

care of,” and hoped for a stable family when she moved to the United States to live

with her aunt. But, coming from an unstructured environment where she was

largely unsupervised, she found it difficult to adjust to the structure of her aunt’s

house. Next, “Likely looking for someone to take care of her, [JF] first became

involved in a relationship at the age of 13 with a man who was 6 years older than

her.” After breaking up with him, JF experienced more instability, going back and

forth between living alone and with her aunt, but again having “to assume

responsibilities not age appropriate, such as supporting herself financially, which

prevented her from attending school.” Although able to support herself, “she also

experienced several episodes during which she felt lonely and depressed and

significantly emotionally reliant on others.”

As to emotional maturity, the psychologist said JF appeared to have

“adequate interpersonal skills,” to “have been able, to a certain extent, to delay

gratification when needed to obtain a goal,” and, “[o]n the surface, … to be in

control of her emotions.” The psychologist continued, “However, this appears to

be a somewhat simplistic way of overcompensating for pervasive feelings of

loneliness and abandonment. She does not appear to have good insight into her

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real emotions or feelings because of her use of avoidance and denial of emotions as

a defense.” Further, “her lack of consistent and clear role models have likely

resulted in delays in moral development.” Thus, “Overall, despite intact

cognitive/intellectual skills, she has significant delays in developmental maturity.”

JF’s social history clearly weighed against transfer, by demonstrating that

her chronologic age overstated her actual, developmental maturity. It also

provided the context in which to place any alleged involvement in the charged

conduct. Given her social history, it was not surprising that she was vulnerable to

bad influences by older men, and to becoming part of a group that could provide

her with a substitute for the family for which she so obviously longed. Her

longtime interest in education, and achievement while attending high school while

in detention, demonstrated that she had significant potential to grow, mature and

become rehabilitated if provided with the means to do so.

JF’s emotional maturity and social history outweighed her chronological age

at the time of the offense. Considered together, they established that the significant

potential for rehabilitation she has demonstrated at Essex County Juvenile is real.

Yet, the weight accorded the seriousness of the offenses by the district court

overwhelmed its analysis, and led to a decision contrary to the purposes of the

JJDPA.

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CONCLUSION

For these reasons, a writ of certiorari should issue to review the judgment

and the opinion of the Second Circuit.

Respectfully submitted,

s/Jesse M. Siegel

JESSE M. SIEGEL

Counsel of Record

Law Office of Jesse M. Siegel

233 Broadway, Suite 707

New York, NY 10279

212-207-9009

Attorney for Petitioner Juvenile Female

March 2, 2020

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