United States of America v. A.r.

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0061P (6th Cir.)
File Name: 00a0061p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
A.R.,
Defendant-Appellant.
;>

1
No. 99-5484
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 99-10011—James D. Todd, District Judge.
Argued: October 29, 1999
Decided and Filed: February 17, 2000
Before: JONES, BOGGS, and COLE, Circuit Judges.
_________________
COUNSEL
ARGUED: David W. Camp, DOWDEN, ZDANCEWICZ &
CAMP, Jackson, Tennessee, for Appellant. John T. Fowlkes,
ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee. ON BRIEF: David W. Camp,
DOWDEN, ZDANCEWICZ & CAMP, Jackson, Tennessee,
for Appellant. John T. Fowlkes, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.

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2 United States v. A.R. No. 99-5484
_________________
OPINION
_________________
NATHANIEL R. JONES, Circuit Judge. Defendant-
Appellant A.R. appeals the district court’s order for transfer
to adult criminal prosecution for crimes A.R. committed when
he was 17 and 18 years old. A.R. also challenges the court’s
dismissal of his motion to set aside the order of transfer on
speedy trial grounds. Because the district court did not abuse
its discretion in ordering A.R.’s transfer, we AFFIRM.
I.
A. Procedural History
On February 2, 1999, the United States filed an Information
against A.R. which charged him with a number of criminal
actions: conspiracy; armed robberies of a Little Caesar’s Pizza
Parlor and Po Folks Restaurant on October 18, 1997 and in
November 1997, respectively; and two drug offenses in
November 1997 and in March 1998, the latter occurring after
A.R.’s 18th birthday. The Government also filed motions to
detain A.R. pending trial and to transfer his proceedings to
adult criminal prosecution. A.R. was arrested and taken into
custody on February 3, 1999. On February 18, the district
court issued an order to detain A.R. without bond. Fifty-five
days after his initial detention, on March 30, the district court
held a transfer hearing. There, the court found for the
Government, ordering A.R.’s transfer to adult criminal
prosecution on April 2. On April 5, the court denied A.R.’s
motion to set aside the order of transfer. A.R. filed a notice
of appeal on April 7, 1999.
No. 99-5484 United States v. A.R. 15
See, e.g., United States v. Wong, 40 F.3d 1347, 1371 (2d Cir.
1994). More importantly, they held that the time between the
government’s motion to transfer and the court’s disposition of
that motion was tolled as part of § 5036's “interest of justice”
exception to the thirty-day deadline. See id; United States v.
Romulus, 949 F.2d 713, 716 (4th Cir. 1991). This is
consistent with this and other circuits’ willingness to grant
such exceptions liberally. See, e.g., One Juvenile Male, 939
F.2d 321, 324 (6th Cir. 1991) (concluding that two
continuances which delayed the trial beyond the thirty-day
deadline fell within the “interest of justice exception”). And
contrary to A.R.’s suggestion, there is no requirement that a
court must make its transfer determination within thirty days
of the motion’s filing. Cf. Wong, 40 F.3d at 1371 (excluding
from the thirty-day requirement the forty days which elapsed
between the filing of the transfer motion and the court’s
disposition). In sum, we see no reason to depart from the
Second and Fourth Circuit approaches, which comport with
the statute’s express exception to the thirty-day requirement.
IV.
On appeal, A.R. has essentially sought to re-argue the case
that he made and lost before the district court. A.R. has made
no showing that the court abused its discretion. He has also
failed to show a speedy trial violation. We therefore
AFFIRM the district court’s order of transfer.

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14 United States v. A.R. No. 99-5484
6Our holding is limited to speedy trial claims filed after a district
court has issued a transfer order. We do not address whether a juvenile
delinquency speedy trial claim is reviewable before the substantive
transfer order decision is rendered; an unpublished decision by this Court
held that such a claim was not reviewable under the collateral order
doctrine because that issue “is fully reviewable following an adjudication
of delinquency.” United States v. Juvenile Male, 178 F.3d 1297, 1999 WL
107594, at *2 (6th Cir. 1999) (unpublished decision) (per curiam).
to wait until after trial and a final judgment to appeal the
claim, the adult trial would have already sacrificed the “legal
and practical benefits of being tried as a juvenile.” Angelo D.,
88 F.3d at 858 (quoting United States v. Doe, 49 F.3d 859,
865 (2d Cir. 1995)). These lost benefits include “pretrial
detention in a foster home or community-based facility near
the juvenile’s home instead of adult prison . . . , and the
sealing of records and the withholding of the juvenile’s name
and picture from the media.” Id. Just as in the case of other
substantive and procedural claims, if the speedy trial violation
would have led to dismissal of the case, those “benefits”
would be sacrificed by requiring an adult criminal trial before
allowing an appeal for the violation. This “loss” satisfies the
third prong of the collateral order test, and distinguishes the
juvenile context from non-juvenile cases where speedy trial
claims do not meet that third prong. See United States v.
Bilsky, 664 F.2d 613 (6th Cir. 1981) (concluding that Speedy
Trial Act rights are not irrevocably lost if an immediate
appeal is unavailable).6
2. Merits of Speedy Trial Claim
Finally, the broad reading of the “interest of justice”
exception to the thirty-day requirement, 18 U.S.C. § 5036,
stands decisively against the merits of A.R.’s speedy trial
argument. Most on point are decisions by the Fourth and
Second Circuits which considered and rejected defendants’
claims that the thirty-day period required by 18 U.S.C. § 5036
had elapsed due in part to an intervening transfer motion.
First, those courts concluded that the thirty-day clock begins
to run on the date the juvenile is taken into federal custody.
No. 99-5484 United States v. A.R. 3
B. The Transfer Hearing
At A.R.’s transfer hearing, several witnesses testified on
behalf of the Government and A.R. This testimony provided
information relevant to the list of factors that the Federal
Juvenile Delinquency Act (“FJDA”), 18 U.S.C. § 5032,
requires judges to consider in determining whether to transfer
a juvenile delinquent to adult criminal proceedings.
Information was provided on the following enumerated
factors:
1. A.R.’s Age and Social Background
A.R. was 18 years old at the time of the transfer hearing,
and was 17 and 18 years of age at the time of the alleged
offenses. It is undisputed that A.R. has been diagnosed with
Attention Deficit Hyperactivity Disorder (ADHD) and a
learning disability. As the district court stated, there is little
additional information on A.R.’s social background. The
record indicates that he lives in a “low to middle class”
income home. Although his parents never married, they have
always been amicable, and, according to A.R., have both
provided for his basic needs. Mr. Veldon Reedy, a clinical
social worker who examined A.R., noted in his evaluation
that A.R. has a stable home environment. Mary Jo Bell, the
Intake Counselor for the Madison County Juvenile Court
Services, testified that although A.R.’s mother was
supportive, she was not in control of her son’s behavior. Bell
also testified that A.R. was at one time removed from the
custody of his mother to be with his aunt, and spent
considerable amounts of time with his aunt.
2. The Extent and Nature of A.R.’s Prior Delinquency
Record
Beginning in 1992, A.R. was charged with unruly conduct
and placed in a Teacher, Parent, Probation Officer program
and ordered to attend counseling at a behavioral center. His
problems continued, however. In 1995, A.R. was charged
with vehicular burglary, theft, and vandalism (under five
hundred dollars). In the same year, he was arrested for

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4 United States v. A.R. No. 99-5484
criminal trespassing, assault, and evading arrest. In March of
1996, A.R. was again charged with theft (of a Sears store) and
disruption of a school assembly by fighting. In January 1997,
A.R. was charged with disorderly conduct for fighting.
Despite these numerous arrests, A.R. has only been found
guilty of two minor offenses. Some of the charges were
dropped, and in other cases A.R. was ordered to stay away
from the premises where the alleged incident occurred or to
pay restitution to the victim. He has also been assigned to a
number of specialty programs designed to address his
disabilities.
3. A.R.’s Intellectual Development and Psychological
Maturity
Testing of A.R. has revealed low levels of academic
achievement and intelligence. A.R. was initially tested and
placed in special education classes when he was in middle
school. He has long been diagnosed with ADHD and with a
learning disability. The defense’s expert, Mr. Reedy, testified
that although A.R. is eighteen years old, those diagnoses
generally cause a thirty percent “drop in expectations” for
cognitive and emotional levels, meaning that a person of
A.R.’s age and conditions functions at the level of a ten- to
eleven-year-old. Ms. Estell Staten, the probation officer and
community service caseworker for the Madison County
Juvenile Court Services, testified that A.R. was able to
communicate with her adequately and seemed of average
intelligence.
4. The Nature of Past Treatment Efforts and A.R.’s
Response to Such Efforts
A.R. has been placed in special education classes since
middle school. He has also undergone special investigation
and behavioral treatment in a school program called the “M
team,” which designs individual educational and behavioral
plans for youths with conditions such as A.R.’s. A.R.’s
teacher, Ms. Arnold, testified that the M-team approach had
achieved some success in A.R.’s treatment and educational
No. 99-5484 United States v. A.R. 13
4We can not hear this claim under pendent jurisdiction because it is
not the case that “the appealable issue at hand cannot be resolved without
addressing the nonappealable collateral issue.” Chambers v. Ohio Dep’t
of Human Servs., 145 F.3d 793, 797 (6th Cir. 1998).
5The crux of these decisions is the conclusion that the third prong of
the collateral order test is met--that a transfer order is effectively
unreviewable on appeal from a final judgment. Courts have found this
prong to be satisfied by juvenile transfer orders because “an appeal from
a final judgment would do little to resurrect the special protections
afforded juvenile defendants” that will have been lost by the transfer--
such as detention in foster homes rather than adult prisons and the sealing
of records. United States v. Angelo D., 88 F.3d 856, 858 (10th Cir. 1996).
final decision, it is not reviewable unless it falls within the
collateral order doctrine.4 To fall within that doctrine,
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, 489 U.S. 794, 799
(1989) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978)). Courts have uniformly concluded that orders
transferring juveniles for adult prosecution are immediately
appealable under the collateral order doctrine. See, e.g., One
Juvenile Male, 40 F.3d at 844 (concluding that a transfer
order satisfies all three collateral order criteria).5 Some courts
have applied the logic of these decisions to appeals on
procedural claims. See, e.g., Angelo D., 88 F.3d at 858 (“The
justifications for allowing the immediate appeal of transfer
orders remain the same regardless of whether the appeal is
based on an alleged procedural or substantive deficiency.”).
We believe that the logic of these holdings applies in this
case. A speedy trial claim following a transfer order in the
juvenile context implicates the very concern which allows us
to hear appeals on the merits of transfer orders under the
collateral order doctrine--namely, if defendants like A.R. have

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12 United States v. A.R. No. 99-5484
3Perhaps the most questionable aspect of the district court’s
reasoning is its assessment of the likelihood of rehabilitation at the
privately-run Shelby Training Center--which Mr. Reedy testified would
be better suited for A.R. Unlike the other state-run juvenile facilities
(who do not treat persons over the age of 18), the Shelby Center treats
people until they reach the age of 21. That would enable A.R. to receive
about two years of treatment, casting some doubt on the district court’s
conclusion that the Shelby Center treatment would be “relatively short-
term” for A.R. J.A. at 203. But given the court’s broad discretion in
making such a conclusion, and the fact that this is only one of the six
factors to be weighed, this is not grounds for reversal.
th[e] program long enough to get long-term treatment, which
is probably necessary.” J.A. at 203-04. These determinations
are well within the district court’s fact-finding purview, are
supported by evidence in the record, and are consistent with
reasoning employed by past courts. See T.F.F., 55 F.3d at
1121-22 (upholding a district court’s conclusion that a
defendant could not remain in the juvenile system after he
reached nineteen). Although there is some testimony
contradicting some of these conclusions, these are instances
where the district court has simply chosen to credit the
Government’s evidence over A.R.’s. This is within its
discretion, and is not clearly erroneous.3
C.
A.R.’s second argument is that the Government violated 18
U.S.C. § 5036 because he was not brought to trial within
thirty days of the date of his detention. Since he was detained
on February 3, 1999, A.R. argues that he should have been
brought to trial within thirty days of that detention--no later
than March 5. Instead, even the transfer hearing was not
conducted until March 30. A.R. filed a motion to set aside
the transfer order on this ground, which the district court
denied.
1. Jurisdiction To Hear this Claim
We find that this Court has jurisdiction to hear the speedy
trial claim. Because the court’s denial of the motion is not a
No. 99-5484 United States v. A.R. 5
progress. She stated that A.R. had the intelligence to be
taught, demonstrated the ability to learn, and further
“demonstrated that with the right structure he could function
well with others.” J.A. at 141. The defense claims that the
attempts to treat A.R. and accommodate the ADHD and
learning disability from which he suffers were not supported
by the school system. Ms. Marcella Fletcher, a Tennessee
Legal Services attorney who represented A.R. concerning
special education issues, testified that she had to file a due
process notice against the school in order to assure that A.R.
would be treated properly for his ADHD.
Reedy testified that A.R. received Ritalin for about three
years, but that the treatment had been discontinued. He
further testified that with the medication, A.R. had “tended to
do better”--without the medication, he was “going to be pretty
much doomed to not being successful academically and []
behaviorally.” J.A. at 170. Reedy further testified that the
“M team” response was not adequate to treat A.R.’s
problems--“I would like to have seen a more intensive type of
work done . . . . [H]e should have had [] some intensive
counseling since his early childhood.” J.A. at 132.
5. The Availability of Programs Designed to Treat A.R.’s
Behavioral Problems
Brenda Roden, the Madison County Juvenile Court Clerk,
testified that the county’s juvenile system had an age limit of
19. Christopher Bryant Worrell, an employee of the
Correction Corporation of America at the Shelby Training
Center in Memphis, Tennessee, testified as to the availability
of that private facility for A.R. Worrell testified that the
Center provides numerous programs offering education and
guidance for incarcerated juveniles. Worrell explained that
“there is further provided to an individual incarcerated over
the age of eighteen educational opportunities based upon what
needs and desires are necessary as determined by the guidance
counselor. He (A.R.) would be placed into a structured
environment . . . The facility is described as secured” and
“rehabilitative in nature.” J.A. at 221. Reedy testified that

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6 United States v. A.R. No. 99-5484
the Shelby Center’s “highly structured” environment, with
both educational training and counseling components, would
be helpful to A.R. J.A. at 171-72.
On these facts, the district court ordered A.R. transferred to
adult proceedings.
II.
We review a district court’s order of transfer for abuse of
discretion. See United States v. T.F.F., 55 F.3d 1118, 1120
(6th Cir. 1995). Such an abuse of discretion occurs “if the
district court fails to make the required factual findings, or if
those findings are clearly erroneous.” Id.
III.
A.
The purpose of the Federal Juvenile Delinquency Act is 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. One
Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994) (citation
omitted). This aim, however, is counter-balanced by the need
to protect the public from violent and dangerous offenders
and their criminal acts. See id. Thus, a juvenile who commits
a felony when he or she is fifteen or older may be subject to
adult criminal procedures if a district court deems it to be “in
the interests of justice.” T.F.F., 55 F.3d at 1119 (quoting 18
U.S.C. § 5032). Specifically, a district court must
“determine[] whether the risk of harm to society posed by
affording the defendant more lenient treatment within the
juvenile justice system [is] outweigh[ed by] the defendant’s
chance for rehabilitation.” One Juvenile Male, 40 F.3d at 844.
The statute requires that in making this determination, the
district court must make record findings as to the following
factors:
1) the age and social background of the juvenile;
No. 99-5484 United States v. A.R. 11
2While the Eighth Circuit has concluded that § 5032's listing of a
prior delinquency record as a factor only encompasses prior convictions,
see United States v. Juvenile LWO, 160 F.3d 1179, 1182-83 (8th Cir.
1998), the Seventh Circuit has concluded that the phrase “record”
includes both delinquency “convictions” and arrests, United States v.
Wilson, 149 F.3d 610, 613 (7th Cir. 1998). We need not resolve this
question since the district court did not place greater weight on this factor
relative to others. See Anthony Y., 172 F.3d at 1253 (noting the different
approaches but choosing not to decide which is appropriate because the
additional conduct was also relevant to other statutory factors).
“juvenile record” is indeed unclear, but is a question we need
not resolve in this case.2 Moreover, the fact that many of
A.R.’s acts were merely property crimes, and did not involve
actual violence, does not preclude the district court from
considering them as part of this analysis. Other courts have
taken into account non-violent aspects of a delinquency
record that show a “pattern of continuous lack of respect for
authority . . . [and] that [a juvenile’s] criminal activity is not
an isolated event, but continued despite prior corrective and
rehabilitative effort . . . .” United States v. Juvenile No. 1, 118
F.3d 298, 309 (5th Cir. 1997).
A.R.’s argument that the court did not give enough weight
to A.R.’s low intellectual development and psychological
maturity is also unavailing. As stated supra, the district court
can choose how much weight to give each factor, and courts
have consistently rejected the notion that the failure to satisfy
one or two factors negates the government’s case for transfer.
Moreover, courts have generally concluded that lower
maturity and intelligence do not negate a transfer finding as
long as a defendant has the cognitive ability to conform his
conduct to the law. See, e.g., One Juvenile Male, 40 F.3d at
845 (noting that a psychologist evaluating a defendant “did
not believe an identified learning disability bore on
defendant’s ability to conform his conduct to law”).
For similar reasons, the district court did not clearly err
when it concluded that “past treatment efforts have failed,”
J.A. at 203, and that any juvenile treatment would be “short-
lived” because A.R. is already over 18 and “couldn’t stay in

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10 United States v. A.R. No. 99-5484
findings simply because the evidence is subject to multiple
interpretations.”)
In this case, the district court undertook an analysis of each
factor. Its conclusions regarding each factor are reasonable
interpretations of the facts, and comport with caselaw from
this and other circuits.
First, the court’s noting A.R.’s advanced age was consistent
with this Court’s and other courts’ conclusions that the closer
a defendant is to eighteen, the greater the presumption that he
be treated as an adult. See, e.g., T.F.F., 55 F.3d at 1121
(accepting district court’s reasoning that “because defendant
was eighteen at the time of the transfer hearing, there was
little time to rehabilitate defendant within the juvenile
system”); United States v. Smith, 178 F.3d 22, 27 (1st Cir.
1999) (“[T]he proximity of a juvenile’s age to age eighteen is
another important factor for the court’s consideration.”);
United States v. Juvenile No. 1, 118 F.3d 298, 308 (5th Cir.
1997) (affirming district court’s conclusion that a defendant
was “rapidly approaching the age at which he should be held
accountable for his actions under the adult criminal justice
system”).
Similarly, the court’s placing considerable weight on the
nature of A.R.’s crimes is both reasonable and consistent with
precedent. As this Court noted in One Juvenile Male, “[t]he
practice of giving great weight to the nature of the alleged
offense in determining a juvenile’s prospect for rehabilitation
has been sanctioned by several courts.” 40 F.3d at 846. The
court’s emphasis on the seriousness of armed robbery in
particular has also been echoed by other courts. See, e.g.,
Smith, 178 F.3d at 26 (noting that in every published case
where a juvenile was transferred to adult status for armed
robbery, the transfer was upheld by the appellate court).
A.R. challenges the district court’s conclusion that he has
an “extensive prior delinquency record” by claiming that as
most of that record involves charges that were dropped, he
has actually only been found guilty of several minor
delinquent acts. The scope of § 5032's reference to the
No. 99-5484 United States v. A.R. 7
2) the nature of the alleged offense (which, for the
purposes of this inquiry, a court may assume to
have been committed, see One Juvenile Male, 40
F.3d at 845), including the defendant’s role in the
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 the juvenile’s
response to such efforts; and
6) the availability of programs within the juvenile
system designed to treat the juvenile’s behavioral
problems.
See 18 U.S.C. § 5032. It is up to the district court “how much
weight to give each factor.” T.F.F., 55 F.3d at 1120.
Title 18 U.S.C. § 5036, which A.R. claims has also been
violated, provides a “speedy trial” component to delinquency
adjudications:
If an alleged delinquent who is in detention pending trial
is not brought to trial within thirty days from the date
upon which such detention was begun, the information
shall be dismissed on motion of the alleged delinquent or
at the direction of the court, unless the Attorney General
shows that additional delay . . . would be in the interest
of justice in the particular case.
18 U.S.C. § 5036.

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8 United States v. A.R. No. 99-5484
1A.R. and some of his witnesses claimed that the school’s treatment
had been inadequate.
B.
1.
The district court looked at the evidence regarding each of
the six enumerated factors, making the following
determinations. First, the district court noted that A.R. was
18, “so he is now an adult by legal standards.” The court also
noted that it had “very little information about his social
background.” J.A. at 201. Second, the court found the nature
of the alleged offenses to be “serious”-- “among the most
serious crimes that can be alleged.” J.A. at 201-02. The court
further noted that one of the alleged drug offenses occurred
when A.R. had already reached 18. Third, the court found
that A.R. had an “extensive prior delinquency record ranging
from disorderly behavior, or disruptive behavior, all the way
through robbery.” J.A. at 202. Fourth, the court found that
A.R.’s intellectual development and psychological maturity
were “low.” “He seems at best low average on the academic
achievement and intelligence testing.” J.A. at 202. The court
noted that this was a factor that “would militate toward
keeping him as a juvenile.” Id. Fifth, the court found that
regardless of whose fault it was,1 past treatment efforts had
failed to remedy A.R.’s behavioral problems. Despite
“numerous individualized educational plans tried, none of
[them] have worked. Alternative schools were tried but had
not worked. In fact, the more the system tried to concentrate
on the juvenile’s problems, the more serious his crimes
became.” J.A. at 203. Finally, crediting Mr. Worrell’s
testimony, the court found that there are programs available
within the juvenile system for behavioral problems such as
A.R.’s. However:
the problem[] with those programs is that for this
juvenile they would be relatively short-term. He’s
already over 18. He wouldn’t stay in that program or
No. 99-5484 United States v. A.R. 9
couldn’t stay in that program long enough to get long-
term treatment, which is probably necessary.
J.A. at 203-04. In sum, after having “consider[ed] all the
factors as a whole,” the district court concluded that it had
“no choice but to rule that [A.R.] should be transferred for
adult prosecution.” The court placed particular weight on the
juvenile system’s inadequacy in “handl[ing] juveniles of this
background and of this sort.” J.A. at 204.
2.
We do not find that the district court abused its discretion
in issuing the transfer order. The burden which A.R. must
overcome is high indeed. Even though “the government bears
the burden of rebutting the statutory presumption of juvenile
treatment,” the “statute does not require more” from a district
court than simply to make findings for each factor, and to
consider each factor in determining whether the transfer
would be in the interests of justice. T.F.F., 55 F.3d at 1121.
Moreover, a district court has broad discretion in how it
balances and weighs the import of the different factors--“[t]he
court need not even find a majority of factors weigh in favor
of the prevailing party, as it is not required to give equal
weight to each factor but may balance them as it deems
appropriate.” United States v. Anthony Y., 172 F.3d 1249,
1252 (10th Cir. 1999)(quoting United States v. Leon, D.M.,
132 F.3d 583, 589 (10th Cir. 1997)) (internal quotation marks
omitted). It also has broad discretion in how the adduced
facts color its consideration of each factor, particularly since
“many of the statutory factors leave considerable room for
interpretation . . . and neither § 5032 nor the case law
interpreting it specifies how these characteristics should be
assessed in a particular juvenile.” Leon, D.M., 132 F.3d at
590-91. In sum, the trial court’s decision carries great weight
at the appellate level. See Anthony Y., 172 F.3d at 1254
(“Under our deferential standard of review[], we do not
evaluate whether we would have made a different finding in
the first instance, nor do we reverse adequately supported

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