United States v. C.M. ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50585
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00873-DMS
C. M. (A JUVENILE),
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued February 14, 2006
Submitted May 2, 2007
Pasadena, California
Filed May 8, 2007
Before: Betty B. Fletcher, Warren J. Ferguson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Ferguson;
Dissent by Judge Callahan
5313
5316 UNITED STATES v. C. M.
COUNSEL
Michelle Villasenor-Grant, Federal Defenders of San Diego,
San Diego, California, for the defendant-appellant.
Christopher M. Alexander, Assistant United States Attorney,
San Diego, California, for the plaintiff-appellee.
OPINION
FERGUSON, Circuit Judge:
Title 18 U.S.C. § 5033 of the Juvenile Delinquency Act
(“JDA”) prescribes the process due to a juvenile who is
placed in federal custody. The arresting officer must immedi-
ately advise the juvenile of his or her rights; immediately
advise the juvenile’s parents, guardian, or custodian of the
juvenile’s rights; comply with any request by the juvenile to
speak with his or her parents or a parental surrogate; and
UNITED STATES v. C. M. 5317
bring the juvenile before a magistrate “forthwith.” None of
these requirements were met in this case — C. M. was not
advised of his rights until six hours after his arrest; neither his
parents, nor any individual who could act in loco parentis,
were notified of C. M.’s rights; C. M.’s repeated requests to
speak with a representative of his consulate went unheeded;
and C. M. was locked in a holding cell for nearly ten hours
before being brought before a magistrate.
We find that the government violated every requirement of
18 U.S.C. § 5033, and that these violations were not harmless.
As a result of the government’s illegal conduct, C. M. lost his
right under § 5033 to the advice of an adult guardian prior to
interrogation. C. M.’s confession, which should have been
suppressed, was used to support the information initiating his
prosecution. Because the government’s misconduct consti-
tutes prejudicial error, we reverse.
I. BACKGROUND
A. Arrest and Detention
Around 4:25 a.m. on May 20, 2005, seventeen-year old C.
M., a Mexican national, approached the border patrol check-
point on the I-8 westbound near Pine Valley, CA. He stopped
his vehicle and the officer on duty observed two persons
seated in the back with their heads down. C. M. responded
briefly to the officer’s questions and then proceeded forward
without having been visibly flagged on. The officer yelled for
deployment of a “spike mat,” which flattened the tires on the
vehicle and brought it to a rest about a half-mile from the
checkpoint. C. M. and the six other occupants of the vehicle
were apprehended as they scattered into the nearby brush. The
arresting agents, Saul Enriquez and Rebecca Brudnok, trans-
ported C. M. and the six other occupants of the vehicle to the
checkpoint for processing. A keyless entry remote for the
vehicle was found on C. M.
5318 UNITED STATES v. C. M.
At the checkpoint, arresting agents Enriquez and Brudnok
locked C. M. in a holding cell and began processing the
detainees, including asking each of them basic biographical
questions. From the birthdate that C. M. gave the arresting
agents, they realized he was a minor. Neither arresting agent,
nor any other agent at the checkpoint, informed C. M. of his
rights or attempted to contact his parents.
After two hours had elapsed, Agent Enriquez informed
C. M. that he had the right to speak with the Mexican consul-
ate. C. M. asked to exercise this right. Agent Enriquez called
the consulate, but upon receiving no answer, hung up the
phone without leaving a message. Agent Enriquez did not
make any further attempts to contact the consulate. Instead, he
called a supervisor, who told Agent Enriquez that they would
try to contact the consulate “later.” Agent Enriquez testified
that, “at the time,” he did not have an all-hour emergency
number for the consulate and did not know “for sure” that
such a number existed. Agent Brudnok, however, testified
that an all-hour number for the Mexican consulate was kept
at the border checkpoint. Agent Brudnok also testified that
she never attempted to contact the consulate with that all-hour
number.
Four hours later, at 10:15 a.m., Supervisory Border Patrol
Agent David Holt contacted consular official Ivan Castillo
and advised Castillo that C. M. was a juvenile being held for
alien smuggling. C. M. was not concurrently given the oppor-
tunity to speak with the consulate.
At 10:20 a.m., Border Patrol Agent Luis Gutierrez arrived
at the checkpoint from San Diego to assist with processing C.
M. Forty minutes later, around 11 a.m., Agent Gutierrez first
notified C. M. of his Miranda rights in Spanish. C. M. waived
his right to remain silent and Agent Gutierrez proceeded to
question him. Sometime after beginning the interrogation,
Agent Gutierrez asked C. M. whether he had contact informa-
tion for his parents. C. M. responded that he did not.
UNITED STATES v. C. M. 5319
Around 12:40 p.m., Agent Gutierrez re-advised C. M. of
his Miranda rights. The record does not indicate whether
C. M. waived his rights this time. Nonetheless, Agent Gutier-
rez continued questioning C. M., who again asked to speak
with the Mexican consulate. Agent Gutierrez ignored C. M.’s
request, telling C. M. that he would get a chance to speak with
the consulate and an attorney later. During the second period
of questioning, C. M. indicated that he was living with his
uncles in Los Angeles. Presentence Report (“PSR”) 2. Agent
Gutierrez did not attempt to contact C. M.’s uncles, but
instead continued to question C. M., who ultimately gave a
sworn statement incriminating himself.
The government used C. M.’s incriminating statements to
support a juvenile information that it filed against C. M. that
afternoon, alleging six counts of delinquency. After obtaining
C. M.’s incriminating statement, the government transported
the juvenile to San Diego, where he was arraigned around 4
p.m. on the information. The information charged C. M. with
three counts of transporting an illegal alien in violation of 8
U.S.C. § 1324(a)(1)(A)(ii), and three counts of bringing in
illegal aliens for “commercial advantage or private financial
gain,” in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). At the
arraignment, the magistrate judge appointed C. M. counsel
and noted that no family members or representatives of the
Mexican consulate were present. C. M., through counsel,
denied the allegations in the information. Dist. Ct. Rec. 4.
B. Motions and Trial
On June 1, 2005, C. M. filed motions to suppress state-
ments, to suppress evidence, and to dismiss the information
due to multiple violations of 18 U.S.C. § 5033. The govern-
ment filed its response on June 13, 2005, also filing motions
in limine to exclude expert testimony, admit evidence of
transport, admit evidence of prior misconduct, admit demea-
nor evidence, and admit statements concerning financial
arrangements.
5320 UNITED STATES v. C. M.
The motion hearing and trial were conducted together on
June 15, 2005. The District Court granted the government’s
motions in limine, except the motion to admit Rule 404(b)
evidence of prior misconduct. The District Court concluded
there were violations of the JDA, but that these violations did
not deny C. M. due process. As such, the Court denied C.
M.’s motion to dismiss the information. The District Court
also discussed prejudice, but declined to make a specific find-
ing as to whether the violations of the JDA prejudiced C. M.,
indicating that the remedy for such prejudice would be “sup-
pression of the statement,” which, in the District Court’s
view, had already occurred because the government stipulated
it would not use C. M.’s post-arrest statements in its case-in-
chief.
During trial, the government called three occupants of the
vehicle as material witnesses. The witnesses testified to sub-
stantially similar stories of how they crossed the border into
the United States and waited for transport along the side of a
highway. The witnesses also testified to their understanding
that they would have to pay for their transport — either to a
friend, or a friend of a friend. The witnesses generally did not
know how much they would owe, when payment was due, or
how they were expected to pay. None saw the driver of the
vehicle or knew C. M.
At the close of the government’s case, C. M. made a Fed.
R. Crim. P. 29 motion on all counts, which the District Court
denied. The District Court found C. M. delinquent on the six
counts and sentenced him to twenty-one months in custody
and three years of supervised release. C. M. timely appeals to
this Court, contending that his juvenile information should be
dismissed due to multiple, egregious violations of the JDA,
which prejudiced his statutory rights and amounted to a denial
of due process. C. M. also claims there was insufficient evi-
dence presented at trial to find him delinquent.
UNITED STATES v. C. M. 5321
II. STANDARD OF REVIEW
Compliance with the JDA is a question of statutory inter-
pretation reviewed de novo. United States v. Jose D.L., 453
F.3d 1115, 1120 (9th Cir. 2006). We review de novo whether
the juvenile and his or her parents or guardian were notified
“immediately” of the juvenile’s rights, since such questions
“turn on the legal interpretation of ‘immediate.’ ” United
States v. Doe, 219 F.3d 1009, 1014 (9th Cir. 2000) (Doe IV).
Whether the parents or guardian of a juvenile have been prop-
erly notified pursuant to 18 U.S.C. § 5033 is a predominately
factual question that we review for clear error. United States
v. Juvenile (RRA-A), 229 F.3d 737, 742 (9th Cir. 2000).
Whether a juvenile has been arraigned “forthwith” is a mixed
question of law and fact reviewed de novo. Doe IV, 219 F.3d
at 1014.
III. DISCUSSION
This Court has repeatedly held that a juvenile is entitled to
relief under § 5033 when the government violates the require-
ments of the statute and causes the juvenile constitutional or
statutory harm. Where the government’s violations deprive
the juvenile of his or her constitutional rights, reversal is
required. See RRA-A, 229 F.3d at 744. If the violations result
in statutory prejudice, and irrespective of whether they
amount to a constitutional deprivation, this Court has the “dis-
cretion to reverse the conviction so as to ensure that the pro-
phylactic safeguard for juveniles not be eroded or neglected.”
Id. (internal quotation marks and citation omitted). Accord-
ingly, we first determine whether the JDA has been violated.
If it has, we then consider the harm, if any, caused by the vio-
lations.
A. The Government Violated the JDA
[1] The JDA provides in relevant part:
5322 UNITED STATES v. C. M.
Whenever a juvenile is taken into custody for an
alleged act of juvenile delinquency, the arresting
officer shall immediately advise such juvenile of his
legal rights, in language comprehensive to a juve-
nile, and shall immediately notify the Attorney Gen-
eral and the juvenile’s parents, guardian, or
custodian of such custody. The arresting officer shall
also notify the parents, guardian, or custodian of the
rights of the juvenile and of the nature of the alleged
offense.
The juvenile shall be taken before a magistrate judge
forthwith. In no event shall the juvenile be detained
for longer than a reasonable period of time before
being brought before a magistrate judge.
18 U.S.C. § 5033. The burden is on the government to show
compliance with § 5033. Jose D.L., 453 F.3d at 1120. Here,
C. M.’s arresting officers violated every requirement man-
dated by Congress in § 5033: they failed timely to notify
C. M. of his rights; failed to engage in reasonable efforts to
contact C. M.’s parents or guardian; failed to provide ade-
quate consular notification in the event C. M.’s parents could
not be reached; failed to honor C. M.’s request to speak with
a consular representative; and failed to arraign C. M. forth-
with.
1. Advising C. M. of his rights
[2] C. M. was placed in custody shortly before 5 a.m. on
May 20, 2005, when he was apprehended in the field and
locked in a holding cell at the I-8 checkpoint. See Doe IV, 219
F.3d at 1014 (a juvenile is taken into custody when he would
have reasonably believed “he was not free to leave”) (quoting
United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
C. M. was therefore in custody for six hours before being
advised of his rights at 10:55 a.m., which violates § 5033’s
requirement that juveniles in federal custody be immediately
UNITED STATES v. C. M. 5323
advised of their rights. See Doe IV, 219 F.3d at 1014 (finding
three and a half hours to be a statutory violation because
“[a]lthough there is a dearth of case law interpreting ‘immedi-
ately’ in the context of 18 U.S.C. § 5033, a three and a half
hour delay simply does not comport with the plain meaning
of the word”); RRA-A, 229 F.3d at 744 (holding that a four
hour delay in advising a juvenile of her rights does not qualify
as “immediately” under § 5033).
2. Parental notification
The District Court did not determine whether the govern-
ment violated § 5033’s parental notification provisions. We
have held that these provisions require that “[r]easonable
efforts . . . be made to notify the parents,” United States v.
Doe, 701 F.2d 819, 822 (9th Cir. 1983) (Doe I), that the noti-
fication “have substantive content,”1 United States v. Doe,
862 F.2d 776, 779 (9th Cir. 1988) (Doe II), and that the
phrase “immediately notify” mean the same thing as it does
in the context of “immediately” advising the juvenile of his or
her rights, see Doe IV, 219 F.3d at 1014-15. In the event the
juvenile’s parents live outside the United States and cannot be
reached, the arresting officer should provide notification to
the juvenile’s consulate. See RRA-A, 229 F.3d at 744-45.
[3] Here, the arresting officers did not even attempt to
1
This Circuit — guided by the text and evident purpose of § 5033 “to
provide meaningful protection to juveniles by facilitating parental involve-
ment,” see United States v. Wendy G., 255 F.3d 761, 766-67 (9th Cir.
2001) — has required the following substantive content to parental notifi-
cation: the arresting officer must advise the parents of their child’s
Miranda rights contemporaneously with advising them of their child’s
custody, United States v. Doe, 170 F.3d 1162, 1167 (9th Cir. 1999) (Doe
III), and the officer must also advise the parents that they are permitted to
speak with their child before the child is interrogated, Wendy G., 255 F.3d
at 767. Moreover, an arresting officer may not unreasonably refuse a
request by either the juvenile or the parent to communicate with one
another before the juvenile is interrogated. Doe IV, 219 F.3d at 1017.
5324 UNITED STATES v. C. M.
reach C. M.’s parents until Agent Gutierrez, sometime after
11 a.m., asked C. M. for his parents’ contact information,
after he had already begun questioning C. M. Agent
Enriquez, who had arrested C. M. over six hours earlier, testi-
fied that although he was aware of the JDA’s parental notifi-
cation requirements, he made no attempt to contact C. M.’s
parents or to ask C. M. how to reach his parents. Waiting until
C. M. had been in custody for more than six hours before
attempting to notify his parents does not constitute reasonable
efforts to notify the juvenile’s parents “immediately,” and
therefore violates the JDA. See Doe IV, 219 F.3d at 1014-15
(noting that the start of custody, not the start of interrogation,
is the trigger for parental notification; thus, the officers vio-
lated § 5033’s immediacy requirement by waiting until the
juvenile had been in custody for three and a half hours before
attempting to contact his parents). Nor were C. M.’s arresting
officers permitted to focus solely on consular notification, and
bypass contacting his parents, as a way of satisfying § 5033.
See Doe II, 862 F.2d at 779 (even when the parents live out-
side the United States, the officers cannot simply notify the
consulate, but must also make reasonable efforts to contact
the parents).
[4] Additionally, by its own terms, § 5033’s parental notifi-
cation provision applies with equal force to guardians and
custodians of the juvenile. See 18 U.S.C. § 5033 (requiring
immediate notification to “the juvenile’s parents, guardian, or
custodian” of the juvenile’s custody, rights, and alleged
offense). Thus, if parental notification is not possible, the gov-
ernment is not relieved of its substantive obligation to make
the advice and counsel of a responsible adult available to the
juvenile prior to interrogation. Instead, if a guardian or custo-
dian is available, the JDA clearly requires that the arresting
officer provide notification to the guardian or custodian just
as he or she would provide notification to the parents.
[5] Here, while C. M. did not have his parents’ contact
information, he told his interrogators that he was living with
UNITED STATES v. C. M. 5325
his uncles in Los Angeles. PSR 2. As soon as Agent Gutierrez
discovered this fact, he had a duty to halt the interrogation and
make reasonable efforts to provide immediate notification to
C. M.’s uncles, as parental surrogates. This would include
asking C. M. for his uncles’ contact information, which the
record demonstrates C. M. could have provided, had he been
notified of his right to speak with a responsible adult prior to
interrogation. Agent Gutierrez’s failure to make timely con-
tact with C. M.’s uncles in this case violates the JDA’s clear
requirement that the arresting officer provide immediate noti-
fication to an adult responsible for the juvenile — usually to
the juvenile’s parents, but possibly to a guardian or custodian
instead.
3. Consular notification
In the event parental notification is not possible and the
juvenile’s parents live abroad, adequate consular notification
consists of “reasonable efforts to notify the consulate of the
juvenile’s custody and rights prior to interrogation.” RRA-A,
229 F.3d at 745. As we explained in RRA-A, the primary func-
tions of consular notification are to “facilitate contact with the
parents . . . by providing an in-country mechanism for locat-
ing [them],” id. at 745-46, and “to permit diplomatic officials
to become involved as surrogates for parents who are not in
the country,” id. at 746. Consular notification “must thus
occur as soon as reasonably possible after the arresting officer
has difficulty contacting the [ ] parents so that the minor has
access to meaningful support and counsel,” as contemplated
by § 5033. Id.
[6] The supervisor of C. M.’s arresting officers, Agent
Holt, notified the Mexican consulate of C. M.’s custody and
alleged offense around 10:15 a.m., over five hours after
C. M.’s arrest and almost four hours after C. M. had explicitly
asked to speak with a representative of his consulate. This
notification was patently inadequate. First, the notification
was not timely. C. M.’s arresting officers failed to use reason-
5326 UNITED STATES v. C. M.
able efforts to notify the consulate as soon as possible, see id.,
by using the 24-hour hotline that Agent Brudnok testified was
kept at the border checkpoint; see Dist. Ct. Rec. 16. Second,
the notification was substantively inadequate. When Agent
Holt finally contacted the consulate, he did not notify the con-
sulate of any of C. M.’s legal rights, as we have held is
required under the JDA. See id. at 745.
4. Right to speak with the consulate
The District Court found, and we agree, that the arresting
officers did not comply with C. M.’s request to speak with the
Mexican consulate prior to being Mirandized. This finding is
not clearly erroneous; rather, it fairly reflects the record. The
only evidence the government provides that C. M. spoke with
the consulate is C. M.’s statement to Agent Gutierrez during
questioning to the effect that “he had spoken with the consul-
ate before.” But C. M. said this immediately after asking
Agent Gutierrez when in fact he would be able to speak with
the Mexican consulate that day. Read in context, it is abun-
dantly clear that C. M. meant by his statement not that he had
already had the opportunity to speak with the consulate on
May 20, but that he had on a previous occasion been able to
speak with the consulate. Moreover, the government fails to
show when C. M. would have had the opportunity to speak
with the consulate while in custody on May 20. Instead,
Agents Brudnok, Enriquez, and Gutierrez all testified that
they did not put C. M. in touch with the consulate. Indeed, the
record shows that the only person to speak with the consulate
on May 20 was the supervisor of the arresting agents, who did
not concurrently afford C. M. his right to speak with a country
representative.2
[7] The record reflects that the agents repeatedly ignored
2
Indeed, it is unclear whether Agent Holt was even present at the check-
point where C. M. was being held when he made contact with consular
official Castillo.
UNITED STATES v. C. M. 5327
C. M.’s request to speak with the Mexican consulate. Such
disregard constitutes a violation of § 5033. In Doe IV, we held
that an arresting officer may not unreasonably refuse a request
by either the juvenile or his or her parent to communicate
with one another before the juvenile is questioned. 219 F.3d
at 1017. We have repeatedly held that consular notification
operates as a proxy for parental notification, see, e.g., RRA-A,
229 F.3d at 745-46, and must therefore be substantive.3 For
example, consular notification must include notice of the
juvenile’s rights in addition to the fact that the juvenile is in
custody. Id. at 745. Like parental notification, the purpose of
consular notification is not to “impart[ ] general information
in the abstract,” Doe IV, 219 F.3d at 1017, but to satisfy
§ 5033’s substantive requirement of meaningful protection for
the juvenile by enabling diplomatic officials “to become
involved as surrogates for parents who are not in the country,”
RRA-A, 229 F.3d at 746. In Doe IV, we reiterated that Con-
gress intended for parents to be informed of their child’s
rights so that they could assist their child in a meaningful
way; the notification to the parents is reduced to an empty
recitation of facts if a child’s request to speak with his or her
parent is simply ignored. See 219 F.3d at 1017. So too is con-
sular notification rendered an empty formality, and the evi-
dent purpose of § 5033 thwarted, if the juvenile’s request to
speak with the consulate in his or her parents’ stead is simply
ignored. We therefore hold that a juvenile’s request to speak
with his or her consulate cannot be unreasonably denied and
we protect a juvenile’s right to confer with a parental surro-
gate while in custody, in the event his or her parents cannot
be reached. C. M.’s arresting officers violated § 5033 in
ignoring C. M.’s repeated requests to confer with a country
representative.
3
See supra note 1 for the substantive requirements for parental notifica-
tion.
5328 UNITED STATES v. C. M.
5. Prompt arraignment
[8] Section 5033 provides that a juvenile in federal custody
“shall be taken before a magistrate judge forthwith. In no
event shall the juvenile be detained for longer than a reason-
able period of time before being brought before a magistrate
judge.” 18 U.S.C. § 5033. “ ‘Forthwith’ means ‘with dispatch’
or ‘immediately.’ ” United States v. L.M.K., 149 F.3d 1033,
1035 (9th Cir. 1998), as amended 166 F.3d 1051. The plain
meaning of § 5033 is thus that juveniles must be arraigned
with dispatch or immediately, unless factors are present to
excuse a reasonable delay. We have found only a limited set
of factors that rise to the level of exigency necessary to justify
a delay: for example, that no magistrate judge is immediately
available, Doe I, 701 F.2d at 824; that the officers are
extremely busy and must prioritize more urgent cases, id.
(describing such cases to be “a woman in late pregnancy and
women with infants and small children”); and that the officers
are trying to reach the parents or consulate, see RRA-A, 229
F.3d at 746.
[9] Here, there was a delay of eleven hours in bringing
C. M. before a magistrate. The government does not cite any
extenuating circumstances to justify this delay, but rather
points to the routine tasks of processing, interrogating, and
transporting the juvenile. Red Br. at 22. In comparing the
amount of time it took to perform these routine tasks with the
total amount of time that elapsed before C. M. was arraigned,
we find that the government has not met its burden of show-
ing that it acted with the expediency required by § 5033 in
bringing C. M. before a magistrate.
[10] The record indicates that C. M. was processed between
5 and 6:30 a.m., interrogated between 11 a.m. and about 1
p.m., and then transported a distance of forty-five miles,
which requires about an hour’s travel. The four to five hours
that it took to conduct these tasks do not explain why eleven
hours elapsed before C. M. was arraigned. Given the dispatch
UNITED STATES v. C. M. 5329
with which juveniles must be arraigned under § 5033, it was
not reasonable to delay five to six hours to interrogate C. M.,
or to process any of the other adult occupants of the vehicle
ahead of him. See Doe I, 701 F.2d at 824 (requiring the gov-
ernment to prioritize the arraignment of juveniles); Doe IV,
219 F.3d at 1015 (calling for the expedited handling of juve-
niles as compared to adults). There is even less reason for the
government’s delay here given that it cannot be excused on
the basis that the officers were trying to put C. M. in touch
with his parents or the consulate. Indeed, we are troubled by
the government’s contrary claim that the reason for the delay
in arraigning C. M. was the officers’ need to comply with
§ 5033’s parental notification provisions, when, as detailed in
the preceding sections, the officers did not make reasonable
efforts to notify the parents or consulate to begin with.4 We
conclude that the government has failed to meet its burden of
showing that it complied with the JDA’s prompt arraignment
requirement.
B. The Violations of the JDA Were Not Harmless
[11] Having determined that the government violated
§ 5033 in every respect, we turn to the question of remedies.
Reversal of C. M.’s conviction is mandatory if the govern-
ment’s misconduct deprived C. M. of any constitutional right.
See RRA-A, 229 F.3d at 744. Furthermore, irrespective of
whether the government’s misconduct rose to the level of a
constitutional violation, if it gave rise to prejudice under the
JDA, we may “reverse or [ ] order more limited remedies so
as to ensure that [C. M.’s statutory] rights are safeguarded and
the will of Congress is not thwarted.” Id. at 747. For example,
4
Specifically, the government asserted during oral argument that the
arresting agents had to delay six hours to notify C. M. of his rights because
“they couldn’t get in contact with the consulate and they didn’t know any
contact information for the parents.” This claim ignores the fact that the
first time any officer asked C. M. for his parents’ contact information was
sometime after the juvenile was Mirandized around 11 a.m. and the inter-
rogation had already begun.
5330 UNITED STATES v. C. M.
where violations of the JDA contribute to a juvenile’s confes-
sion and that confession results in the juvenile’s prosecution,
the juvenile is prejudiced by the government’s misconduct
and the charges against him or her must be dismissed. Doe II,
862 F.2d at 781. In assessing harmlessness, we must be con-
vinced beyond a reasonable doubt that the government’s mis-
conduct did not give rise to any prejudice. See Wendy G., 255
F.3d at 767.
Our first inquiry is whether the violations of the JDA were
a cause of C. M.’s confession. In other words, did C. M.’s
confession result in part from “[his] isolation from family,
friends, [or] representatives of [his] country or an attorney”?
RRA-A, 229 F.3d at 747. Here, prior to being interrogated, C.
M. was locked in a holding cell for six hours without any
notification of his rights. During this time, his request to
speak with a country representative went unheeded. Seven
hours later, after his interrogation had begun, C. M. repeated
his request to contact his consulate, which Agent Gutierrez
flatly refused. Only after Agent Gutierrez unlawfully denied
C. M.’s request to speak with his consulate did C. M. finally
confess. Moreover, when C. M. was finally afforded contact
with a responsible adult during his arraignment, he promptly
denied the statements contained in the information, including
the incriminating statements he had made only a few hours
before. We have little difficulty under these circumstances in
concluding that the government’s multiple violations of the
JDA were, “at the very least, a cause of [C. M.’s] confession.”
Id. The many hours C. M. spent locked in the holding cell
without being advised of his rights; the repeated and unlawful
denial of C. M.’s right to speak with a parental surrogate
before being interrogated; and the undue delay in arraigning
C. M. all improperly “interfere[d] with [C. M.’s] right to
remain silent.” Doe IV, 219 F.3d at 1018. There is therefore
a statutory basis to suppress the confession.
[12] The only remaining question is the prejudice caused
by C. M.’s confession. Here, the government relied on C.
UNITED STATES v. C. M. 5331
M.’s statements, obtained in deprivation of his statutory
rights, to procure the juvenile information and initiate pro-
ceedings against C. M. The record is clear that the delay in
arraigning and charging C. M. was incurred in order to permit
a senior officer, Agent Gutierrez, to travel to the checkpoint
and interrogate C. M. When the information was filed,
C. M.’s incriminating statements were the only evidence the
government presented of C. M.’s awareness that the occu-
pants of the vehicle were illegal immigrants, and C. M.’s
intent to facilitate transport for financial gain — both essential
elements of the crimes with which C. M. was charged. See 8
U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(2)(B)(ii). We conclude
that the government’s reliance on the fruits of its misconduct
to initiate proceedings against C. M. was not harmless beyond
a reasonable doubt. The appropriate remedy in this case is to
dismiss the charges. See Doe II, 862 F.2d at 781; Jose D.L.,
453 F.3d at 1126 (“If a violation of the JDA was prejudicial
because it led the Government to initiate prosecution of the
juvenile, the remedy is for the charges against the juvenile to
be dismissed.”).
Our conclusion that dismissal is warranted derives not only
from this Court’s holdings in Doe II and Jose D.L., but also
from our obligations under the JDA. In remedying violations
of § 5033, this Court is charged with ensuring “that the pro-
phylactic safeguard for juveniles not be eroded or neglected.”
RRA-A, 229 F.3d at 744 (internal quotation marks and citation
omitted). Here, the government violated every requirement of
§ 5033. Further, the agents involved uniformly testified to
their familiarity with their obligations under the JDA. Yet,
despite their familiarity with the statute, the agents failed to
engage in the basic steps necessary to comply with the JDA.
Agents Enriquez and Brudnok both testified that they knew
they had to notify C. M. immediately of his rights, yet, inex-
plicably, neither ever did so. Both agents also testified to their
understanding that they had to notify the juvenile’s parents as
soon as possible — but again, neither did so. Both agents, as
well as Agent Gutierrez, testified that they knew C. M. had a
5332 UNITED STATES v. C. M.
right to speak with the consulate, yet, during the eleven hours
that elapsed before C. M. was arraigned, no one put C. M. in
touch with the consulate — not even when Agent Holt had the
consulate on the phone at 10:15 a.m.
The harm that flows from such conduct extends beyond the
prejudicial impact on the individual of any improperly elicited
statements. The harm also erodes the comprehensive system
of juvenile justice that Congress has established through the
federal juvenile laws.5 As we noted in United States v.
Frasquillo-Zomosa, the JDA “creates a special procedural and
substantive enclave for juveniles accused of criminal acts,”
which stands apart from “the ordinary criminal justice sys-
tem” and accords juveniles “preferential and protective han-
dling not available to adults accused of committing crimes.”
626 F.2d 99, 101 (9th Cir. 1980). It is this system of juvenile
justice, as well as C. M.’s individual rights, that we are
charged with protecting. Here, the government’s conduct
effectively nullified the unequivocal provisions of the statute
defining the process that Congress has mandated juveniles in
federal custody are due. We caution against further erosion of
the critical protections due to juveniles under the JDA. See
Jose D.L., 453 F.3d at 1125 (finding that the government “fla-
grantly violated” the JDA); Wendy G., 255 F.3d at 768
(reversing due to multiple, prejudicial violations of the JDA);
RRA-A, 229 F.3d at 747 (same); Doe IV, 219 F.3d at 1014-15
(same); Doe III, 170 F.3d 1162 (finding the government vio-
5
In enacting the JDA, Congress intended “to improve the quality of
juvenile justice and to provide a comprehensive, coordinated approach to
the problems of juvenile delinquency.” S. Rep. No. 93-1011, at 1 (1974),
as reprinted in 1974 U.S.C.C.A.N. 5283, 5283 (emphasis added). The
Senate Report on the JDA further notes that the “United States has a long
tradition of dealing differently with juveniles than with adults,” but “many
of the methods of dealing with juveniles in this country have come to be
viewed either as counterproductive or as violations of the rights of chil-
dren” — “[t]hus there is a pressing need for national standards to improve
the quality of juvenile contacts with the justice system.” S. Rep. No. 93-
1011, at 25-26 (citation omitted).
UNITED STATES v. C. M. 5333
lated the JDA); L.M.K., 149 F.3d at 1035 (same); Doe II, 862
F.2d at 780-81 (remanding due to multiple violations of the
JDA); Doe I, 701 F.2d at 821 (finding multiple violations of
the JDA). As we recently observed,
[O]ver thirty years after the JDA was enacted, gov-
ernment law enforcement agents trample even the
most basic requirements of the JDA. . . . We do not
believe that it furthers Congress’s intent to allow the
government, in case after case, to ignore with impu-
nity the protective requirements of the JDA. Courts
should not close their eyes to these continuing viola-
tions by mindlessly reciting the rubric of harmless
error as an overarching excuse for ignoring what
Congress has clearly ordained . . . .
Jose D.L., 453 F.3d at 1125 (citations omitted).
IV. CONCLUSION
C. M. was deprived of his rights under § 5033 to immediate
notification and prompt arraignment, and to the advice and
counsel of a responsible adult prior to interrogation. His
resulting confession was highly prejudicial and should not
have been used against him to initiate his proceedings.
Accordingly, we REVERSE the District Court’s adjudication
of delinquency, DISMISS the juvenile information, and
REMAND for further proceedings not inconsistent with this
opinion.6
CALLAHAN, Circuit Judge, dissenting:
I question whether the government agents violated 18
6
Having reversed based on our finding of statutory prejudice, we need
not reach the alternative grounds for relief advanced by Appellant.
5334 UNITED STATES v. C. M.
U.S.C. § 5033 of the Juvenile Delinquency Act (“JDA”) in
their processing of C.M. in as many ways as the majority
states, but I agree with the majority’s implicit determination
that the alleged violations did not rise to the level of a consti-
tutional violation. See United States v. D.L., 453 F.3d 1115,
1125 (9th Cir. 2006). I disagree, however, with the majority’s
determination that the alleged violations, were prejudicial and
with its directions that the juvenile information must be dis-
missed. I read our precedent as requiring not only a determi-
nation of whether the violations contributed to the juvenile’s
statements, but also whether the improperly procured state-
ments were harmless. Here, the improperly procured state-
ments were harmless, but even if this conclusion were in
doubt, our precedents direct that the proper remedy is a
remand. D.L., 453 F.3d at 1126-27; United States v. RRA-A,
229 F.3d 737, 747 (9th Cir. 2000); United States v. Doe (Doe
II), 862 F.2d 776,781 (9th Cir. 1988).
I
Accepting that the record supports a determination that the
Government’s violations of the JDA were a cause of C.M.’s
statements, the remaining issue is whether the procurement of
the confession, which was not admitted or referred to at
C.M.’s trial, was harmless or prejudicial. The majority con-
cludes that it was prejudicial because C.M.’s statements that
he was aware that the occupants of the vehicle were illegal
immigrants and that he was driving the vehicle in order to
reduce the fee he would have to pay for being smuggled into
the United States were set forth in the declaration of the agent
supporting the juvenile information. The majority, however,
fails to give any weight to the other evidence that supported
the initiation of proceedings.
This evidence included that C.M. drove up to a border
patrol check point at 4:25 a.m. Although C.M. initially
stopped at the check point, he then rapidly accelerated away
from the check point, without authority to leave. The agent
UNITED STATES v. C. M. 5335
activated a controlled tire deflation device, and the vehicle,
with two flattened tires, came to a stop one-half mile from the
check point. The driver of the vehicle was identified as wear-
ing something orange and when C.M. was discovered hiding
in some nearby brush after abandoning the vehicle, he was
wearing a shirt with orange sleeves. C.M. had on his person
the keyless remote entry for the abandoned vehicle. In addi-
tion, three passengers that the border agent had spotted
crouched in the back of the vehicle were also discovered hid-
ing nearby and they testified that they were attempting to
enter the United States illegally. When C.M.’s fingerprints
were taken, he was identified as having failed to yield at a
border check point four months earlier. Thus, the Government
had sufficient evidence on which to initiate juvenile proceed-
ings without the mention of C.M.’s confession.
The majority cites Doe II as supporting its conclusion that
“the government’s reliance on the fruits of its misconduct to
initiate proceedings against C.M. was not harmless beyond a
reasonable doubt,” but the facts in Doe II were very different.
There, although the Government did not use Doe’s statements
in its case-in-chief, the statements were introduced through
defense cross-examination of a Government agent. 862 F.2d
at 778. This use of the statements is the predicate on which
the court determined that the statutory violations “must be
said to have prejudiced Doe.”1 Id. at 781. Indeed, the fact that
the statements were used at trial was critical to the disposition
of the case as the panel split three ways on the appropriate
remedy. Judge Tang thought the violations were so egregious
that the panel should direct the dismissal of the charges. Id.
1
The opinion states: “[i]f the prosecution resulted from the confession
and the confession came in part as a result of Doe’s isolation from family,
friends, representatives of his country or an attorney, then the statutory
violations must be said to have prejudiced Doe.” 862 F.2d at 781.
Although not clear of ambiguity, I do not read this sentence as holding that
the procurement of a statement from a juvenile in violation of the JDA
necessarily means that a subsequent conviction must be vacated where, as
here, the statement is not admitted or referred to at the trial.
5336 UNITED STATES v. C. M.
at 782. Judge Farris, the author of the opinion, remanded the
matter to the district court to determine whether the violations
of the JDA “prejudiced Doe’s defense.” Id. at 781. Judge
Wallace was of the opinion that the record demonstrated that
Doe suffered no prejudice.2 Id. at 782. As the use of the juve-
nile’s statement at trial in Doe II did not mandate the dis-
missal of the juvenile information, it follows that in this case
the use of the statement in a preliminary statement by an
agent, but not at trial, should not mandate the dismissal of the
juvenile information.3
The majority attempts to bolster its determination of preju-
dice by arguing that the Government’s failure to follow the
JDA erodes “the comprehensive system of juvenile justice
that Congress has established through the federal juvenile
2
Judge Wallace’s reasoning is particularly relevant to this case. He
explained that the court was faced
with the effect of a nonconstitutional statutory violation on the
decision to charge and prosecute. We must therefore consider
whether Doe’s post-arrest statements substantially influenced the
decision to charge and prosecute Doe, or whether we have grave
doubts that this decision was free from the substantial influence
of Doe’s statements. Neither of these tests is met in this case. The
government expressly stipulated that it would not use these state-
ments at trial. It would not have pursued Doe’s prosecution with-
out believing that there was a good chance of obtaining a
conviction without that evidence. Doe’s post-arrest statements,
therefore, could not have substantially influenced the decision to
charge and prosecute. For the same reasons, I have no grave
doubts that the decision to charge and prosecute Doe was free
from the substantial influence of the government’s statutory vio-
lations.
862 F.2d at 783.
3
The other cases relied upon by the majority similarly concern the use
at trial of statements procured in violation of the JDA. In United States v.
Doe (Doe IV), 219 F.3d 1009, 1013 (9th Cir. 2000), the juvenile’s state-
ments were used at trial. In RRA-A, the court determined that “RRA’s con-
fession was the primary basis of evidence on which she was convicted.”
229 F.3d at 747.
UNITED STATES v. C. M. 5337
laws.” This concern, however, must be balanced with the
Supreme Court’s decision in United States v. Morrison, 449
U.S. 361 (1981). Judge Alarcon explained in his concurring
and dissenting opinion in D.L.:
In Morrison, the Court held that when the Govern-
ment has improperly obtained incriminating infor-
mation from an accused “the remedy
characteristically imposed is not to dismiss the
indictment but to suppress the evidence or to order
a new trial if the evidence has been wrongfully
admitted and the defendant convicted.” Id. Here, the
District Court dutifully complied with Morrison by
excluding Jose’s statements. The Supreme Court
instructed in Morrison that where evidence has been
obtained in violation of the Fourth, Fifth, or Sixth
Amendments, “[t]he remedy in the criminal proceed-
ing is limited to denying the fruits of the transgres-
sion.” Id. at 366 . . . The Court also stated:
Our numerous precedents ordering the
exclusion of such illegally obtained evi-
dence assume implicitly that the remedy
does not extend to barring the prosecution
altogether. So drastic a step might advance
marginally some of the ends served by
exclusionary rules, but it would also
increase to an intolerable degree interfer-
ence with the public interest in having the
guilty brought to book.
Id. at 366 n. 3 . . . (quoting United States v. Blue, 384
U.S. 251, 255 (1966)).
453 F.3d at 1133. The majority’s focus on the alleged egre-
giousness of the agents’ failures to comply with the provi-
sions of the JDA, majority opinion at page 5331, does not
5338 UNITED STATES v. C. M.
justify its failure to adhere to the Supreme Court’s admonition
in Morrison.
My review of the record indicates that the district court cor-
rectly determined that on balance, the violations did not
require the dismissal of the juvenile information when it
stated:
Obviously, the prejudice would stem principally
from the use of any such confession, but that is
absent here since there is no evidence being received
of his confession. And there is not any other preju-
dice or constitutional violation arising simply from
the other conduct attributed to the border patrol
agents; that is the consulate issue and the delay in
mirandizing Mr. M.
This ruling does not reward the Government for failing to
abide by the JDA. Rather, as the Government recognized, the
misconduct deprived it of the use of C.M.’s statements at trial.
Where, however, the Government proves its case at trial
beyond a reasonable doubt without the use of, or reference to,
the juvenile’s statement, justice does not require that the
guilty defendant be absolved just because he is a juvenile.
II
Even if there was some question as to whether the viola-
tions of the JDA were prejudicial, the appropriate remedy is
a remand, not an order vacating the adjudication of delin-
quency and dismissing the juvenile information. In D.L. we
stated that “where the record does not satisfy us, beyond a
reasonable doubt, that a violation of the JDA was harmless,
a remand to the district court is appropriate.” 453 F.3d at 1126
(emphasis omitted). In RRA-A, even though we found that
RRA’s confession “was the primary basis of evidence on
which she was convicted,” and should have been suppressed,
we reversed and remanded, but did not direct the dismissal of
UNITED STATES v. C. M. 5339
the juvenile information. 229 F.3d at 747. Similarly, in Doe
IV we determined that the improperly obtained statements
used against Doe “were highly prejudicial and should have
been suppressed,” but we did not direct the dismissal of the
juvenile information, but reversed and remanded “for further
proceedings not inconsistent with this opinion.” 219 F.3d at
1018. Also in Doe II, when the statements were introduced
through cross-examination, we nonetheless remanded “for the
district court to make all findings relevant to a determination
of whether the government’s violations of the notice and
speedy arraignment provisions of the Federal Juvenile Delin-
quency Act prejudiced Doe’s defense.” 862 F.2d at 781.4
Based on these precedents — where the use of statements
procured in violation of the JDA were clearly more adverse
to the defendants than the statement in this case was to C.M.
— the proper remedy is a remand, not the vacation of the
juvenile information. Moreover, the district court on the
remand should focus, as we held in Doe II, on whether the
violations prejudiced C.M.’s defense.
For the foregoing reasons I dissent. I would affirm C.M.’s
conviction because the violations of the JDA did not prejudice
C.M.’s defense to the juvenile information. Moreover, even if
I had some question as to whether the violations were harm-
less, our precedent instructs that the appropriate remedy is a
remand for the district court to consider the appropriate rem-
edy, not a direction to vacate the adjudication of delinquency
and dismiss the juvenile information.
4
I recognize that there is language in Doe II that is repeated in RRA-A
that “we have the discretion to reverse or to order more limited remedies.”
Doe II, 862 F.2d at 780; RRA-A, 229 F.3d at 747. I do not question this
statement of the breadth of our options, but read the specific remedies
ordered in those cases as guiding what we should do in this case.