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129

Conditions precedent to Motion to Transfer

Some conditions must be met before a Motion to Transfer|B251 can be filed. A transfer is available for felony crimes which were committed after the juvenile's fifteenth birthday, and which involve crimes of violence, violations of 21 U.S.C.A. §§ 841 (drug trafficking), 952(a) (drug importation), 955 (drugs on vessels), or 959 (drug manufacture or distribution with intent to import), or violations of 18 U.S.C.A. § 922(x) (possession of a firearm by a juvenile or transferring a firearm to a juvenile), or 18 U.S.C.A. § 924(b) (transporting firearms with intent to commit a felony), (g) (interstate travel to acquire firearms for criminal purposes) or (h) (transferring a firearm to be used in a violent or drug trafficking crime). 18 U.S.C.A. §  5032 (West Supp. 1995).

The Violent Crime Control and Law Enforcement Act of 1994 made a dramatic change in this law regarding applicability of transfer for juveniles younger than fifteen who commit certain violations. Juveniles thirteen and older who commit violent crimes under 18 U.S.C.A. §§ 113(a), (b), (c) (assault), 1111 (murder), 1113 (attempted murder), or if the juvenile possessed a firearm during the commission of violations of 18 U.S.C.A. §§ 2111 (robbery), 2113 (bank robbery), 2241(a) or (c) (aggravated sexual abuse), are now subject to transfer to be prosecuted as adults. Id. This provision would not apply to offenses solely predicated on Indian country and which has occurred within the boundaries of such Indian country unless the tribe's governing body has elected to be subject to such provision relating to crimes of juveniles younger than fifteen. Id.

    NOTE: Congress probably erred in referring to 18 U.S.C.A. § 1113 and not including 18 U.S.C.A. § 1112, as described in the previous paragraph. Section 1113 reaches attempts to commit murder under Section 1111 or voluntary manslaughter under Section 1112. Congress probably did not intend for thirteen year-olds to be subject to adult prosecution for attempted manslaughter (18 U.S.C.A. § 1113) but not subject to adult prosecution for actual manslaughter (18 U.S.C.A. § 1112).

Prior approval from the Criminal Division of the Department of Justice is no longer required before the United States Attorney can file a Motion to Transfer under 18 U.S.C.A. § 5032. See Memorandum from Assistant Attorney General Jo Ann Harris for all United States Attorneys (July 20, 1995). Although authority to move to transfer juveniles for prosecution as adults is now delegated to the United States Attorneys, the General Litigation and Legal Advice Section of the Criminal Division continues to be a resource of great help to United States Attorney's Offices in pursuing the appropriate methods of transferring juveniles to adult prosecutions. It is a good idea to attach the Harris Memorandum to the Motion to Transfer when filed as the court may want proof of authority for the United States Attorney to file the motion.