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140

Mandatory transfer of juveniles to adult status

It should be noted that 18 U.S.C.A. § 5032 provides mandatory transfer|B253 to adult status for juveniles alleged to have committed acts after their sixteenth birthday which would be felonies that have an element of using, attempted use, or threatened use of physical force against another, or involving a substantial risk that physical force would be used against another in committing the offense, or it is an offense described in 18 U.S.C.A. §§  32, 81, 844(d), (e), (f), (h), (i) or 2275, 21 U.S.C.A. §§  841(b)(1)(A), (B) or (C), (d) or (e), or 21 U.S.C.A. §§ 1002(a), 1003, 1009, or 1010(b)(1), (2) or (3). Mandatory transfer in this manner also requires the juvenile to have previously been found guilty of an act, which if committed by an adult, would have been one of the offenses set forth in this paragraph or such an offense in violation of a state felony statute. 18 U.S.C.A. § 5032 (West Supp. 1995).

It has been held that the phrase, "which if committed by an adult" in Section 5032, clearly indicates Congress intended "found guilty" to apply to previous juvenile delinquency adjudications. Juvenile Male #1, 47 F. 3d at 69; United States v. David H., 29 F. 3d 489, 492 (9th Cir. 1994). The court also stated that Section 5032 indicates the court is not to reexamine the facts underlying the prior conviction. Id. at 493. Mandatory transfer is triggered by a prior conviction of a felony offense that has as an element thereof the use, attempted use, or threatened use of physical force against the person of another, or that, by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense. Id. The court must look to the elements or essential nature of the criminal offense for which the juvenile was convicted. Id. at 493-94. If an element of the offense is the use, attempted use, or threatened use of force, or if the offense, by its very nature, involves a substantial risk of physical force, the prior conviction triggers mandatory transfer under Section 5032, regardless of the specific conduct underlying the conviction. Id.

One factual scenario that would trigger the mandatory transfer provision would occur where the juvenile is alleged to have violated 21 U.S.C.A. §  841(a) of the Controlled Substances Act after his sixteenth birthday, and a previous adjudication has determined that the juvenile previously committed the same offense, even if the adjudication was under a state felony statute. See H.S., 717 F. Supp. at 914, rev'd on other grounds, In re Sealed Case (Juvenile Transfer), 893 F. 2d at 363.

As in discretionary transfers, the government must file an information alleging the offenses and a motion to transfer|B251 the juvenile to adult status to implement mandatory transfer. David H., 29 F. 3d at 491. Since mandatory transfer is an exception to discretionary transfer, both should be considered in the same proceeding if the government is moving to transfer alleging both methods. Id. at 491-92. Since both mandatory and discretionary transfer depend on the existence of particular facts, a court must hold a hearing and make findings before a transfer may occur. Id. If the findings indicate the mandatory transfer provision applies, the district court will forego the "interest of justice" analysis it would otherwise make on the issue of discretionary transfer and transfer the juvenile. Id.

The mandatory transfer provision eliminates the court's discretion in granting transfer which it enjoys when the government proceeds under the interest of justice standard. Obviously, Congress intended juveniles to be treated more seriously for recidivism. Id., at 492-93.