At page 190 Determining jurisdiction over interlocutory appeals24 citing cases
- United States v. Emakoji, 990 F.3d 885 (5th Cir. 2021).publishedBy statute, a defendant may “appeal from a release or detention 9 See, e.g., Mohawk, 558 U.S. at 107 (“[T]he decisive consideration is whether delaying review until the entry of final judgment would imperil a substantial public interest or…
- United States v. Hos, 696 F.3d 869 (9th Cir. 2012).published“To fall within the limited class of final collateral orders, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreview…
- United States v. Juv. Male, 298 F. App'x 571 (9th Cir. 2008).unpublishedUnited States v. Gerald N., 900 F.2d 189, 190 (9th Cir.1990); United States v. Brandon P., 387 F.3d 969, 976 (9th Cir.2004).
- United States v. Male, 316 F. App'x 535 (9th Cir. 2008).unpublished We have jurisdiction under 28 U.S.C. § 1291 , see United States v. Gerald N., 900 F.2d 189, 190-91 (9th Cir.1990), and we vacate and remand.
- United States v. Juv., 451 F.3d 571 (9th Cir. 2006).published We exercise jurisdiction over this interlocutory appeal in accordance with United States v. Gerald N., 900 F.2d 189, 190-91 (9th Cir.1990).
- Juv. Male v. Commonwealth of the N. Mariana Islands, 255 F.3d 1069 (9th Cir. 2001).publishedUnited States v. Gerald N., 900 F.2d 189, 190 (9th Cir. 1990). 3 .
- United States v. Juv., 228 F.3d 987 (9th Cir. 2000).publishedUnited States v. Gerald N., 900 F.2d 189, 190 (9th Cir.1990).
- United States v. Mitchell H., United States of Am. v. Juweette W., 182 F.3d 1034 (9th Cir. 1999).publishedAs we decided in United States v. Gerald N., 900 F.2d 189, 190-91 (9th Cir.1990), we have jurisdiction over such interlocutory appeals.
- United States v. Leon, D.M., 132 F.3d 583 (10th Cir. 1997).published See id. at 858 n.1 (citing United States v. J.J.K., 76 F.3d 870, 871-72 (7th Cir. 1996); United States v. Doe, 49 F.3d 859, 865 (2d Cir. 1995); United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994); United States v. A.R., 38…
- United States v. John Doe, Juv., & John Doe, Juv., 122 F.3d 1074 (9th Cir. 1997).unpublished "The district judge must then balance these factors in an effort to predict the possibility of rehabilitation if in fact the juvenile is found guilty of the crime alleged." Gerald N., 900 F.2d at 191 (internal quotation omitted). 5 For pur…
Show 11 more citing cases
- United States v. John Doe, 94 F.3d 532 (9th Cir. 1996).published In United States v. Gerald N., 900 F.2d 189, 190 (9th Cir.1990) (per curiam), 3 we held that orders transferring juveniles for adult prosecution are immediately appealable under the collateral order exception described in Cohen v. Benefici…
- United States v. Angelo D., 88 F.3d 856 (10th Cir. 1996).publishedUnited States v. J.J.K., 76 F.3d 870, 871-72 (7th Cir.1996); United States v. Doe, 49 F.3d 859, 865 (2d Cir.1995); United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir.1994); United States v. A.R., 38 F.3d 699, 701 (3d Cir.1994);…
- United States v. J.J.K., 76 F.3d 870 (7th Cir. 1996).publishedUnited States v. T.F.F., 55 F.3d 1118, 1119 (6th Cir.1995); United States v. Doe, 49 F.3d 859, 865 (2d Cir.1995); United States v. Juvenile Male # 1, 47 F.3d 68, 70-71 (2d Cir.1995); United States v. One Juvenile Male, 40 F.3d 841, 843-44…
- United States v. John Doe, 49 F.3d 859 (2d Cir. 1995).publishedAccord United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir.1994); United States v. A.R., 38 F.3d 699, 701 (3d Cir.1994); United States v. Bilbo, 19 F.3d 912, 914-15 (5th Cir.1994); United States v. Gerald N., 900 F.2d 189, 190-91…
- United States v. David H., Juv., 29 F.3d 489 (9th Cir. 1994).published United States v. Gerald N., 900 F.2d 189, 190 (9th Cir.1990).
- United States v. Lanny B., 24 F.3d 251 (9th Cir. 1994).publishedUnited States v. Gerald N., 900 F.2d 189, 190-91 (9th Cir.1990); 18 U.S.C.
- United States v. Juv., 197 F. App'x 545 (9th Cir. 2006).unpublishedSee United States v. Gerald N., 900 F.2d 189, 190 (9th Cir.1990).
- United States v. Lyndell N., 124 F.3d 1170 (9th Cir. 1997).publishedSee United States v. Gerald N., 900 F.2d 189, 190-91 (9th Cir.1990).
- United States v. Alfred N., 124 F.3d 213 (9th Cir. 1997).unpublishedSee United States v. Gerald N., 900 F.2d 189, 190-91 (9th Cir.1990).
- United States v. Bilbo, No. 93-04959 (5th Cir. Apr. 6, 1994).published See Gerald N., 900 F.2d at 190-91 ; In Re Sealed Case, 893 F.2d at 366 - 68; A.W.J., 804 F.2d at 493 ; C.G., 736 F.2d at 1476-77 .
- United States v. Bilbo, No. 93-05271 (5th Cir. Apr. 6, 1994).published See Gerald N., 900 F.2d at 190-91 ; In Re Sealed Case, 893 F.2d at 366 - 68; A.W.J., 804 F.2d at 493 ; C.G., 736 F.2d at 1476-77 .
At page 191 District court discretion in juvenile transfer proceedings18 citing casesholding that an appeal of an order to transfer meets the Supreme Court’s collateral order exception, permitting interlocutory review because (1) it completely disposes of the issue in question, (2) it is totally unrelated to the merits of the case, and (3) the right asserted would be irreparably lo…
- United States v. Juv. Male, 492 F.3d 1046 (9th Cir. 2007).publishedWe have jurisdiction to hear this interlocutory appeal, see United States v. Gerald N., 900 F.2d 189, 191 (9th Cir.1990), and we review the district court’s decision for abuse of discretion.
- United States v. Male, 228 F. App'x 641 (9th Cir. 2006).unpublished(holding that an appeal of an order to transfer meets the Supreme Court’s collateral order exception, permitting interlocutory review because (1) it completely disposes of the issue in question, (2) it is totally unrelat…)
- United States v. Juv. Male, 107 F. App'x 743 (9th Cir. 2004).unpublished(noting that “[e]ach of the district judge’s findings [was] fully supported either by the witness’s testimony or by exhibits properly admitted into evidence)
- United States v. Juv. Male, 336 F.3d 1107 (9th Cir. 2003).published United States v. Gerald N., 900 F.2d 189, 191 (9th Cir.1990).
- United States v. One Juv. Male, 51 F. Supp. 2d 1094 (D. Or. 1999).publishedIn determining whether trying a juvenile as an adult would be “in the interests of justice,” I must consider six factors: Evidence of the following factors shall be considered, and findings with regard to each factor shall be made in the r…
- United States v. Juv. K.J.C., 976 F. Supp. 1219 (N.D. Iowa 1997).published (holding that juvenile’s age weighed in favor of transfer where juvenile was 17 years and 10 months old at time of offense)
- United States v. John Doe, Juv., & John Doe, Juv., 122 F.3d 1074 (9th Cir. 1997).unpublished “The district judge must then balance these factors in an effort to predict the possibility of rehabilitation if in fact the juvenile is found guilty of the crime alleged”
- United States v. John Doe, 94 F.3d 532 (9th Cir. 1996).published In United States v. Gerald N., 900 F.2d 189, 190 (9th Cir.1990) (per curiam), 3 we held that orders transferring juveniles for adult prosecution are immediately appealable under the collateral order exception described in Cohen v. Benefici…
- United States v. Philbert M., 78 F.3d 596 (9th Cir. 1996).unpublishedUnited States v. Gerald N., 900 F.2d 189, 191 (9th Cir.1990).
- United States v. A.R., 38 F.3d 699 (3d Cir. 1994).published United States v. Gerald N., 900 F.2d 189, 191 (9th Cir.1990).
Show 7 more citing cases
- United States v. F.A. Doe, 946 F.2d 899 (9th Cir. 1991).unpublishedUnited States v. Gerald N., 900 F.2d 189, 191 (9th Cir.1990) (per curiam).
- United States v. Jj, Juv. Male, 704 F.3d 1219 (9th Cir. 2013).publishedSee United States v. Gerald N., 900 F.2d 189, 191 (9th Cir.1990) (per curiam).
- United States v. C.P.A., 572 F. Supp. 2d 1122 (D.N.D. 2008).published(finding that the juvenile had “an extensive six-year history of delinquency)
- United States v. Lemrick Nelson, Jr., 68 F.3d 583 (2d Cir. 1995).publishedSee United States v. Gerald N., 900 F.2d 189, 191 (9th Cir.1990).
- United States v. Jamal B., 61 F.3d 913 (9th Cir. 1995).unpublishedSee United States v. Gerald N., 900 F.2d 189, 191 (9th Cir. 1990).
- United States v. Juv. Male 1, 47 F.3d 68 (2d Cir. 1995).published(district court not required to ascertain availability of programs with California Youth Authority; decision to transfer upheld where district court “believed that there was a better chance of rehabilitation in the adult…)
- United States v. Luis Alberto Salazar, 59 F.3d 177 (9th Cir. 1995).published
At page 189 Determining immediate appealability of juvenile transfer orders4 citing cases“sealing of records and the withholding of name and picture from news media are examples of rights granted to juveniles by 18 u.s.c. 5038 . . . that would be irretrievably lost unless the juvenile is permitted to appeal the district court's order before conviction' as an adult.”
- United States v. One Juv. Male, 40 F.3d 841 (6th Cir. 1994).publishedUnited States v. Bilbo, 19 F.3d 912, 914-15 (5th Cir.1994); United States v. Gerald N., 900 F.2d 189, 189-90 (9th Cir.1990); In re Sealed Case, 893 F.2d 363, 366-68 (D.C.Cir.1990); United States v. A.W.J., 804 F.2d 492, 492-93 (8th Cir.198…
- United States v. Robert Dewayne Bilbo, United States of Am. v. Juv.-Male, 19 F.3d 912 (5th Cir. 1994).published See Gerald N., 900 F.2d at 190-91 ; In re Sealed Case, 893 F.2d at 366-68 ; A. W.J., 804 F.2d at 493 ; C.G., 736 F.2d at 1476-77 .
- United States v. Bilbo, No. 93-04959 (5th Cir. Apr. 6, 1994).published See Gerald N., 900 F.2d at 190-91 ; In Re Sealed Case, 893 F.2d at 366 - 68; A.W.J., 804 F.2d at 493 ; C.G., 736 F.2d at 1476-77 .
- United States v. Bilbo, No. 93-05271 (5th Cir. Apr. 6, 1994).published See Gerald N., 900 F.2d at 190-91 ; In Re Sealed Case, 893 F.2d at 366 - 68; A.W.J., 804 F.2d at 493 ; C.G., 736 F.2d at 1476-77 .
Other citing cases
- United States v. Brandon P., 387 F.3d 969 (9th Cir. 2004).published
v.
GERALD N., Juvenile, Defendant-Appellant
Appellant Gerald N. was charged as a juvenile with one count of assault with intent to commit rape and one count of assault with a deadly weapon with intent to do bodily harm. Appellant pleaded not guilty to both counts and a trial date was set. The government then filed a motion to proceed against a juvenile as an adult, as provided for in 18 U.S.C. § 5032 (Supp. V 1987). The district judge granted the government’s motion and this interlocutory appeal followed.
Before proceeding to the merits we must consider whether orders transferring juveniles for adult prosecution are immediately appealable under the collateral order exception of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). “To fall within the limited class of final collateral orders, an order must (1) ‘conclusively determine the disputed question,’ (2) ‘resolve an important issue completely separate from the merits of the action,’ and (3) ‘be effectively unreviewable on appeal from a final judgment.’ ” Midland Asphalt Corp. v. United States, — U.S. -, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (quoting Coo ders & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)). The first two factors of the Coopers & Lybrand test are easily satisfied here. The district court’s order transferring Appellant for adult prosecution conclusively resolves the issue of whether he can be rehabilitated in the juvenile system. At the same time, the issue of rehabilitation is quite separate from Appellant’s guilt or innocence in committing the alleged crime. Whether the order is immediately appeal-able, therefore, turns on whether the order is “effectively unreviewable on appeal from a final judgment.” Id.
During this past term the Supreme Court emphasized that the “third prong of the Coopers & Lybrand test is satisfied only where the order at issue involves ‘an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.’ ” Id. 109 S.Ct. at 1498 (quoting United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978)). After careful consideration, we conclude — as have our fellow courts of appeals that have considered the issue — that the legal and practical value of the right to be tried as a juvenile would be destroyed without the concomitant right of immediate appeal. See United States v. A.W.J., 804 F.2d 492, 492-93 (8th Cir.1986); United States v. C.G., 736 F.2d 1474, 1476-77 (11th Cir.1984); cf. People of the Territory of Guam v. Kingsbury, 649 F.2d 740, 743 (9th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 210 (1981) (pretrial appellate review of an order that a juvenile be tried as an adult allowed under relevant Guam statute). The sealing of records and the withholding of name and picture from news media are examples of rights granted to juveniles by 18 U.S.C. § 5038 (Supp. IV 1986) that would be “irretrievably lost unless the juvenile is permitted to appeal the district court’s order before conviction” as an adult. C.G., 736 F.2d at 1477; accord A.W.J., 804 F.2d at 493. “In addition, if[*191] convicted and sentenced to prison, [the juvenile] would face the distinct possibility of incarceration in an adult penal institution during the pendency of his appeal, since under the Bail Reform Act of 1984 it is no easy matter to obtain bail pending appeal.” Id. (citing 18 U.S.C. § 3143(b) (Supp. IV 1986)). Because these important rights must be vindicated before trial or are otherwise lost forever, we conclude that we have jurisdiction to consider the merits of this appeal under 28 U.S.C. § 1291 (1982).
“[T]he decision to transfer a juvenile to adult status is within the sound discretion of the district judge,” United States v. Alexander, 695 F.2d 398, 400 (9th Cir.1982), cert. denied, 462 U.S. 1108, 103 S.Ct. 2458, 77 L.Ed.2d 1337 (1983), as long as the district judge considers and makes specific findings as to the following six factors: “(1) the juvenile’s age and social background; (2) the nature of the alleged offense; (3) the prior record of the offender; (4) the juvenile’s intellectual development and psychological maturity; (5) the nature of and response to past treatment; and (6) the availability of programs designed to treat the juvenile’s problems.” Id. at 399-400. The district judge must then balance these factors in an effort to predict “the possibility of rehabilitation if in fact the juvenile is found guilty of the crime alleged.” Id. at 401.
The district judge here made specific findings that Appellant was seventeen years and ten months of age at the time the offense was alleged to have been committed and that his social background was one of a low to moderate education with certain problems associated with alcohol and drug abuse; that the nature of the offense — a potentially lethal assault of an eighty-year-old blind woman — was very serious; that according to Appellant’s tribal arrest record he had an extensive six-year history of delinquency; that according to an examination of a certified psychologist there was insufficient reason to conclude that Appellant was either incompetent or unable to understand the proceedings brought against him and further that he was intellectually mature; that there was insufficient basis to conclude one way or the other that Appellant had been exposed to past treatment efforts and that he had failed to respond; and that because of a change in the Youth Corrections Act there were better rehabilitative programs available for adults than juveniles in the State of Arizona. None of these factual determinations is clearly erroneous, notwithstanding Appellant’s assertion that the evidence is insufficient because the government’s only witness had no personal knowledge of Appellant’s past behavior. Each of the district judge’s findings is fully supported either by the witness’s testimony or by exhibits properly admitted into evidence.
Appellant argues alternatively that the district judge abused his discretion in the ultimate determination to transfer to adult status because of the lack of evidence of past treatment efforts and further because there was no effort made to ascertain the availability of programs with the California Youth Authority. We considered and rejected similar arguments in Alexander in which the district judge there had found all but two of the factors either neutral or cutting both ways. We stated in Alexander that it was not “an abuse of discretion to find one factor more compelling than the others.” Id. at 401. Here, the district judge found all but the fifth factor cutting against Appellant. As to that factor the district judge concluded that the absence of evidence of past treatment neither favored nor disfavored Appellant. Since the district judge believed that there was a better chance of rehabilitation in the adult programs, he concluded that it was best to transfer Appellant to an adult status. We do not believe that the district judge abused his discretion in predicting that there was little possibility of rehabilitation within the juvenile system.
AFFIRMED.