United States District Court, D. Columbia.
For PUBLIC DEFENDER SERVICE, SANTHA SONENBERG, MICHAEL SATIN, Non-Party Petitioners: David Andrew Handzo, LEAD ATTORNEY, JENNER & BLOCK LLP, Washington, DC; Michael Satin, Santha Sonenberg, LEAD ATTORNEYS, PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.
For Y.A., JUVENILE MALE, Defendant: Billy L. Ponds, LEAD ATTORNEY, PONDS LAW FIRM, Washington, DC.
For USA, Plaintiff: Nihar Ranjan Mohanty, LEAD ATTORNEY, U.S. ATTORNEY, Narcotics Section, Washington, DC; Laura Jean Gwinn, U.S. DEPARTMENT OF JUSTICE, Criminal Division/Gang Unit, Washington, DC; William John O'Malley, Jr., U.S. ATTORNEY'S OFFICE, Washington, DC.
ROSEMARY M. COLLYER, United States District Judge.
Y.A., the defendant in this case, is a young man, now twenty-one years old, who allegedly committed two murders at age seventeen as part of his membership in the transnational gang MS-13. Y.A. is currently charged and treated as a juvenile; for almost two years, this case has proceeded under seal, and Y.A. has been protected by special, modified court procedures to accommodate his unique status as a youth charged in federal court with gravely serious crimes. The question presently before the Court is whether Y.A. should be treated as an adult, subject to federal criminal prosecution through a public process, with the special juvenile safeguards removed. The stakes are high; if convicted of all pending charges as an adult criminal, Y.A. faces a lifetime of imprisonment, but he could be detained until only age twenty-six if adjudicated responsible as a juvenile. The Court has weighed all of the relevant factors and concludes that the interest of justice requires transfer of Y.A. to adult criminal prosecution. The Court announced its ruling orally on February 7, 2013, after an evidentiary hearing, but immediately stayed its effect pending a possible interlocutory appeal. This opinion provides the underlying analysis of the facts and law.
Federal juvenile delinquency proceedings such as this one are relatively uncommon, and this case has, in its time before this Court, involved an above-average number of complexities. The Court reviews the case's complicated procedural history first to set the stage for its factual findings regarding Y.A. and the offenses with which he is charged.
A. Procedural History
Y.A. is charged by Amended Juvenile Information, Dkt. 27, with five counts: Count I, conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d) (conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), referred to as " RICO Conspiracy" ); Counts II and IV, murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Violent Crime in Aid of Racketeering, referred to as " VICAR" ); Counts III and V, first-degree murder while armed, in violation of D.C. Code § 22-2101. Counts II and III involve the murder of Louis Alberto Membreno-Zelaya, which occurred on November 6, 2008. Counts IV and V involve the murder of Giovanni Sanchez (also spelled Geovany or Giovanny in the record), which occurred on December 12, 2008. All charges stem from Y.A.'s alleged involvement with MS-13, which the government describes as follows:
La Mara Salvatrucha, also known as the MS-13 gang (hereafter " MS-13" ), is a gang composed primarily of immigrants or descendants of immigrants from El Salvador, with members operating throughout the United States, including within the District of Columbia. The name " Mara Salvatrucha " is a combination of several slang terms. The word " Mara " is the term used in El Salvador for " gang." The phrase " Salvatrucha " is a combination of the words " Salva," which is an abbreviation for " Salvadoran," and " trucha," which is a slang term for the warning " fear us," " look out," or " heads up."
. . .
MS-13 is a national and international criminal organization with over 10,000 members regularly conducting gang activities in at least twenty states and the District of Columbia, as well as in Mexico, Honduras, Guatemala, and El Salvador. MS-13 is one of the largest street gangs in the United States. Gang members actively recruit members, including juveniles, from communities with a large number of immigrants from El Salvador. Members, however, can also have ethnic heritage from other Central American countries. In the United States, MS-13 has been functioning since at least the 1980s.
. . .
[M]embers of MS-13 were expected to protect the name, reputation, and status of the gang from rival gang members and other persons. MS-13 members required that all individuals should show respect and deference to the gang and its membership. To protect the gang and to enhance its reputation, MS-13 members were expected to use any means necessary to force respect from those who show disrespect, including acts of intimidation and violence. MS-13's creed is exemplified by one of its mottos, " Matar, robar, violar, controlar," which translates in sum and substance to, " Kill, steal, rape, control."
. . .
MS-13 members were required to commit acts of violence to maintain membership and discipline within the gang, including violence against rival gang members or those they perceived to be rival gang members, as well as MS-13 members and associates who violated the gang's rules. As a result of MS-13's frequent use of violence, innocent persons were often injured or killed. Participation in criminal activity by an MS-13 member, particularly violent acts directed at rival gang members or as ordered by the gang leadership, increased the level of respect accorded that member, resulting in that member maintaining or increasing his position in the
gang, and possibly resulting in recognition as a leader
Am. Juvenile Information ¶ ¶ 1, 3, 6-7.
The offenses Y.A. allegedly committed are related to a separate criminal proceeding before this Court involving nineteen alleged MS-13 members, United States v. Carlos Silva et al., 10-cr-256 (RMC). For example, Hector Diaz-Flores, named as having participated with Y.A. in the Sanchez murder, Am. Juvenile Information ¶ 22(f), is one of the defendants in the Silva case. The government asserts that Y.A. was part of the leadership of a " clique" --a subgroup--of MS-13. See Memo. Op. dated June 24, 2011 [Dkt. 25] at 2.
Y.A. was indicted for first-degree murder and related charges for the Sanchez stabbing in the Superior Court of the District of Columbia in cases 2008 CF1 29100 and 2008 CF1 29102. The United States Attorney directly filed a murder indictment against Y.A. which, under D.C. Code § 16-2301(3), removed Y.A. from the definition of a juvenile for purposes of local prosecution and set him to be tried as an adult. Although a trial was scheduled in Superior Court, it was continued when the United States Attorney filed a Juvenile Information in this Court on February 9, 2011, see [Dkt. 2], charging Y.A. with additional acts which, if committed by an adult, would constitute the federal offense of VICAR. The Attorney General's certification, required in these cases by the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. § 5032 ¶ 1,  was filed shortly thereafter. See Gov't Cert. [Dkt. 4].
The government originally sought federal adult criminal prosecution of Y.A. as a mandatory matter on the basis of his prior juvenile adjudications.  See Gov't Mot. Mandatory Transfer [Dkt. 3]. A full recital of the law governing mandatory transfer is not germane here. It suffices to summarize that, given the offenses charged in this case and Y.A.'s juvenile records at the time this case was filed, mandatory transfer hinged on Y.A.'s Through attorneys from the D.C. Public Defender Service (" PDS" ) who had been appointed to represent him in Superior Court, Y.A. opposed the government's mandatory-transfer motion in federal court. After a hearing and extended argument on May 10, 2011, the Court issued an opinion and order on June 24, 2011, granting mandatory transfer of Y.A. to adult criminal prosecution. That order provided that the case would remain sealed for thirty days as protection for Y.A. in case of an appeal. See [Dkt. 26]. On Y.A.'s motion, the Court extended the time to file an interlocutory appeal, see Order [Dkt. 32], which he ultimately did on August 5, 2011, see [Dkt. 34]. Mandatory transfer was stayed pending appeal. See Order [Dkt. 36]. Because the government filed a superseding juvenile information, it also filed an amended motion for mandatory transfer, [Dkt. 28]; because the new information did not affect the legal analysis of the transfer, which turned on Y.A.'s prior record, the Court granted the amended motion and stayed it. See Order [Dkt. 37].
While the appeal was pending without briefing before the D.C. Circuit, Y.A.'s PDS
counsel filed a motion in D.C. Superior Court to See Mot. Reconsid.,
Ex. A [Dkt. 39-1]. The prosecuting authority in that forum, the D.C. Office of the Attorney General, did not oppose the motion. See id. The Superior Court judge thus granted the motion, and Y.A.
e on October 6, 2011. See id., Ex. B [Dkt. 39-2]. Shortly thereafter, Y.A. voluntarily dismissed his D.C. Circuit appeal and filed a motion for reconsideration of the mandatory transfer order, arguing that he could not be tried as an adult once the predicate vacated. See id. [Dkt. 39]. The government vehemently opposed the motion for reconsideration, asserting that Y.A.'s prior counsel had " attempt[ed] to undermine the basis of this Court's determination that federal law required" adult criminal prosecution by " fail[ing] to notice the [Superior C]ourt and the Office of the Attorney General of the decision of this Court . . . and to accurately report . . . the charges pending against defendant in this court." Gov't Opp. [Dkt. 51] at 1-2. Y.A. changed counsel in October 2012; his present counsel was not involved in any prior proceedings in either Superior Court or this Court.
On November 29, 2012, the Court granted Y.A.'s motion for reconsideration, concluding that without the here was no statutory basis for mandatory federal adult criminal prosecution. See Order [Dkt. 68].  Undeterred, the government filed a motion for permissive transfer of Y.A. to adult criminal prosecution on December 13, 2012. See [Dkt. 60]. Y.A. opposed the motion, see [Dkt. 69], and the Court held an evidentiary hearing and heard oral argument on February 7, 2013.  The parties also provided the Court with a Joint Hearing Statement, Dkt. 71, and Joint Stipulations, Dkt. 72; both of those filings and all of the attached exhibits were made part of the record for consideration of the government's motion for permissive transfer.
Each party called two witnesses at the evidentiary hearing. The government's witnesses were Metropolitan Police Department Detective Grade One Bryan Kasul, who conducted an interview with Y.A. on December 12 or 13, 2008, regarding the Sanchez murder, and Special Agent James Brumbelow. Agent Brumbelow is the lead investigator in the Silva case, and he participated in an interview with Y.A. in July 2012. Y.A. presented the testimony of Dr. Gregory DeClue, a forensic psychologist who performed a number of tests on Y.A. at his prior counsel's request. Marina Mendoza, Y.A.'s mother, was present throughout the hearing and also testified.
At the conclusion of the hearing, the Court granted the government's motion for permissive transfer and briefly explained its reasoning from the bench. See Order dated Feb. 7, 2013 [Dkt. 74]. Y.A.'s counsel stated that Y.A. wished to file an interlocutory appeal, so the Court stayed the order and directed that this case remain under seal pending a ruling from the D.C. Circuit on Y.A.'s appeal. At the parties' request, the Court writes now to memorialize its findings and explain its reasoning.
B. Findings of Fact
Before turning to its findings of fact from the February 7, 2013, evidentiary hearing, the Court first reviews the parties' joint stipulations and documentation. The parties have helpfully categorized some of the agreed-upon information according to the statutory factors the Court is required to consider in ruling on the
government's motion--"  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; [and 6] the availability of programs designed to treat the juvenile's behavioral problems." See 18 U.S.C. § 5032 ¶ 5.
1. Parties' Stipulations
The parties' stipulations are taken directly from their Joint Stipulations in Dkt. 72 with only minor typographical and stylistic alterations. These stipulations are only effective for the present proceedings and do not bind the parties at trial.
1. Age and Social Background:
a. Y.A.'s date of birth is April 28, 1991. At the time of the transfer hearing, he was twenty-one years and nine months of age. At the time of the November 6, 2008 murder alleged in the information, he was seventeen years and six months; at the time of the December 12, 2008 murder alleged in the information he was seventeen years and seven months.
b. Y.A. is a native of Honduras and lived there until he was approximately fourteen years old. His mother was a college graduate in Honduras who immigrated to the United States. Y.A. was brought to the United States with the assistance of a " coyote"  ; the trip included an arduous trek through the desert. Once in the United States, Y.A. attended school, where he was subjected to some harassment and abuse as a result of being an immigrant. He joined MS-13 just before he dropped out of school in early 2008.
2. Nature of the Offense: Y.A. is charged with two counts of Murder in Aid of Racketeering pursuant to 18 U.S.C. § 1959 and one count of RICO conspiracy pursuant to 18 U.S.C. § 1962(d). The government alleges the following facts: On November 6, 2008, the defendant was aware that a " green light," or authorization to kill, had been issued for the victim. The night of the murder, the defendant, along with several other MS-13 members, accosted the victim and stabbed him more than 20 times, resulting in his death. The government alleges that Y.A. was one of the stabbers. With regard to the December 12, 2008, murder, the government alleges that Y.A., along with other MS-13 members, chased the victim and assaulted him because they believed he was a rival gang member. The defendant was the lone stabber, striking the victim at least ten times.
3. Prior Juvenile Delinquency Findings: The Court may take judicial notice of documents filed with the Court, including the Notice of Juvenile Record [Dkt. 15] and the Defendant's Motion for Reconsideration [Dkt. 39]. The records of the Family Division of Superior Court, Jt. ...