United States v. Juvenile ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50107
Plaintiff-Appellee,
v.  D.C. No.
CR-06-02713-JAH
JUVENILE MALE,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted
August 9, 2007—Pasadena, California
Filed June 12, 2008
Before: Marsha S. Berzon and Sandra S. Ikuta,
Circuit Judges, and James K. Singleton,*
Chief District Judge.
Per Curiam Opinion;
Partial Concurrence and Partial Dissent by Judge Berzon
*The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
6673
UNITED STATES v. JUVENILE MALE 6677
COUNSEL
Leila W. Morgan, Deputy Federal Defender, San Diego, Cali-
fornia, for the petitioner.
Christopher P. Tenorio, Assistant United States Attorney, San
Diego, California, for the respondent.
OPINION
PER CURIAM:
R.P., a male juvenile, appeals from a proceeding in which
he was found to be a juvenile delinquent based on violations
of 8 U.S.C. § 1324(a)(1)(A)(ii) (transporting illegal aliens in
the United States) and § 1324(a)(2)(B)(ii) (bringing illegal
aliens to the United States for “commercial advantage or pri-
vate financial gain”). He contends that the juvenile informa-
tion should have been dismissed because the government
6678 UNITED STATES v. JUVENILE MALE
violated certain provisions of the Juvenile Justice and Delin-
quency Prevention Act of 1974, Pub.L. No. 93-415, 88 Stat.
1109, 1133-38 (codified at 18 U.S.C. §§ 5031-5042), (“JDA”)
with regard to the institution of proceedings against him in
federal court, his interrogation and arraignment, and the time-
liness of his trial. He also appeals from the district court’s
judgment on the § 1324(a)(2)(B)(ii) counts, maintaining that
there was insufficient evidence that he obtained or aided
another in obtaining “commercial advantage or private finan-
cial gain.” Because we conclude that § 5033 of the JDA was
violated, we remand to the district court to consider whether
the violations were a cause of R.P.’s confession.
BACKGROUND
I. Statutory Protections for Arrested Juveniles.
Under the Juvenile Delinquency Act, juveniles are entitled
to distinct procedural protections with regard to interrogation
and arraignment, the speed with which they are brought to
trial, and the institution of delinquency proceedings against
them in federal court. Upon the arrest of a juvenile, the arrest-
ing officer must “immediately advise [the] juvenile of his
legal rights, in language [that is] comprehensi[ble] to a juve-
nile.” 18 U.S.C. § 5033. The arresting officer must also “no-
tify the parents, guardian or custodian of the rights of the
juvenile,” and the juvenile must “be taken before a magistrate
judge forthwith.” Id.Before instituting delinquency proceedings in federal court,
the “Attorney General” must “certif[y] to the appropriate dis-
trict court” that one of three conditions exists: “the juvenile
court or other appropriate court of a State does not have juris-
diction or refuses to assume jurisdiction”; “the State does not
have available programs and services” for juveniles; or “the
offense charged is a crime of violence” or a specified drug-
related felony. Id. § 5032. The Attorney General must also
certify that “there is a substantial Federal interest in the case
UNITED STATES v. JUVENILE MALE 6679
or the offense to warrant the exercise of Federal jurisdiction.”
Id.
Lastly, a juvenile who is detained pending trial must be
“brought to trial within thirty days from the date upon which
such detention was begun,” unless “additional delay was
caused by the juvenile or his counsel, consented to by the
juvenile and his counsel, or would be in the interest of justice
in the particular case.” Id. § 5036.
II. November 19, 2006 Arrest.
R.P. was arrested by federal border patrol agents on
November 19, 2006, at approximately 5:00 p.m. on suspicion
of smuggling aliens into the United States. R.P. and the other
occupants of the blue Dodge Ram in which he was traveling
were then transported to the Calexico Border Patrol Station.
At the station, Border Patrol Agent Jesus Salazar asked R.P.
his birth date. R.P. stated that he was born on January 18,
1988, making him 18 years old. Agent Salazar was informed
by his dispatcher, however, that DHS records1 showed a num-
ber of earlier arrests for R.P., and that the birth dates given on
at least two of those occasions would make R.P. a juvenile on
the day of this latest border-crossing. Neither Agent Salazar
nor any of the other border patrol officers attempted to notify
the Mexican Consulate or R.P.’s parents of R.P.’s arrest.
Sometime after 12 a.m., Agent Salazar advised R.P. of his
Miranda rights and began a videotaped interview. In the inter-
view, R.P. stated that he was a citizen of Mexico and that he
had no documents allowing him to legally enter or remain in
the United States; that he met a smuggler in the Mexican city
of Mexicali who offered to smuggle him into the United
States for $1900; and that he later agreed to drive a vehicle
1
DHS “maintains information on every INS apprehension.” United
States v. Parga-Rosas, 238 F.3d 1209, 1211 (9th Cir. 2001).
6680 UNITED STATES v. JUVENILE MALE
carrying illegal immigrants into the United States in exchange
for a reduction of his smuggling fee to $500.
III. Proceedings Before the Magistrate Judge.
R.P. challenges the timeliness of his trial under the speedy
trial provision of the JDA, 18 U.S.C. § 5036. We therefore lay
out the course of the district court proceedings in some detail.
On November 21, 2006, at least 36 hours after his arrest on
November 19, 2006, R.P. was arraigned on a complaint
charging him with illegal transportation of aliens in violation
of 8 U.S.C. § 1324. At the arraignment, appointed defense
counsel informed the court that “[defendant] is a minor, that
he’s 17 years old, and that just about 20 days ago he was actu-
ally turned over to the Mexican consulate in San Luis and
then taken to the Mexican authorities as a juvenile.” Defense
counsel presented no documents at that time to confirm R.P.’s
age. The magistrate judge set a hearing date on the matter of
R.P.’s juvenile status for December 1.
At the start of the December 1 hearing, defense counsel
requested a continuance because the Mexican consulate had
not yet interviewed R.P. The magistrate judge set the hearing
for December 5, and indicated to defense counsel that evi-
dence “that [R.P.] was previously removed as a juvenile”
would likely not be sufficient to convince him that R.P. was
a juvenile. However, the magistrate judge stated that verifying
documents and testimony from the Mexican Consulate as to
their authenticity would “lend[ ] a lot more credibility” to
R.P.’s claim that he was a juvenile.
At the December 5 hearing, defense counsel stated that she
had obtained faxed copies of R.P.’s birth certificate and the
birth certificate of his mother by contacting R.P.’s mother in
Mexico. Defense counsel also represented that a defense
investigator was prepared to testify that he had contacted
R.P.’s mother and obtained copies of the documents. The
UNITED STATES v. JUVENILE MALE 6681
court informed defense counsel that “I’ll just give you a tenta-
tive [ruling] that the birth certificate alone is not going to sat-
isfy the Court without some other testimony,” and that a faxed
birth certificate “with the testimony that somebody spoke to
somebody on the telephone” was not “going to suffice.” The
court decided to “give both sides [time] to prepare their
cases,” and set the hearing for December 11.
At the December 11 evidentiary hearing, R.P.’s fourth
appearance before the magistrate judge, defense counsel
informed the court that “the hearing obviously can’t go for-
ward at this time,” because the Mexican consulate had not
“yet received the birth certificate or other documentation,”
and no consular officer was available to testify. The magis-
trate judge then set the hearing for December 20, but noted
that “that’s going to be 30 days out,” and stated “I do think
there is a certain urgency that should be given this proceeding
since it is age-determinative in how [R.P.] is treated.”
When the hearing reconvened on December 20 the magis-
trate judge informed counsel that R.P. was not present
because he had been transferred to San Diego. Defense coun-
sel stated that she had with her R.P.’s birth certificate and a
Mexican consular official who was prepared to testify, and
that R.P.’s mother was on standby over the phone. Defense
counsel also indicated that she wished to waive R.P.’s appear-
ance. The government objected to the waiver, and the court
refused to waive R.P.’s appearance, instead setting a hearing
date for December 26.
Defense counsel and the magistrate judge then proceeded
to discuss which party bears the burden of demonstrating
juvenile status and what type of proof would suffice to dem-
onstrate that R.P. was a juvenile. The magistrate judge indi-
cated that it is “the [d]efense burden to prove that this
individual is a juvenile,” because he “identified himself origi-
nally” as an adult, and further stated “there’s a presumption
that he’s an adult.” The magistrate judge did not say precisely
6682 UNITED STATES v. JUVENILE MALE
what the defense burden was, but informed defense counsel,
“[y]ou’re going to have to . . . convince me,” and that a birth
certificate “in itself would not be sufficient” because “you can
get anything in Mexico that you want to pay for.” He would
consider it “pretty good evidence,” however, if someone from
the Mexican consulate testified as to the birth certificate’s
authenticity.
The evidentiary hearing on R.P.’s juvenile status was
finally conducted on December 26. The magistrate judge
opened the hearing by telling the government “I think you
have the initial burden.” The government presented the testi-
mony of Agent Salazar, who identified R.P. and testified that
R.P. had provided a birth date of January 18, 1988 at the time
of his arrest. When he was asked by government counsel
whether he had received additional information from his dis-
patcher regarding other arrests for R.P., Agent Salazar main-
tained that the birth dates R.P. had given upon his other
arrests were “consistent” with the birth date R.P. provided to
him. After Agent Salazar’s testimony, the magistrate judge
stated “I think the burden has shifted to the [d]efense now.”
The defense then called the Mexican consular official, who
testified that he had contacted R.P.’s mother in Mexico and
that she had provided an original copy of his birth certificate
indicating his date of birth as January 1, 1989, as well as a
residence letter from their county of residence. The consular
official testified that, based on this evidence, he believed that
R.P. was a minor. He also noted that R.P. had been returned
as a juvenile to Mexico in October, 2006 through the Mexican
consulate in Yuma, Arizona. The magistrate judge then found,
based on the “credible evidence” provided by the defense, that
R.P. was a juvenile.
The government filed a juvenile information the next day,
alleging that R.P. had committed acts of juvenile delinquency.
Counts One, Three, and Five of the information alleged viola-
tions of 8 U.S.C. § 1324(a)(2)(B)(ii),2 including aiding and
2
8 U.S.C. § 1324(a)(2)(B)(ii) provides that:
Any person who, knowing or in reckless disregard of the fact
UNITED STATES v. JUVENILE MALE 6683
abetting that crime; Counts Two, Four, and Six alleged viola-
tions of 8 U.S.C. § 1324(a)(1)(A)(ii),3 including aiding and
abetting that crime.
The same day, the government filed two additional docu-
ments. The first document, titled “Certification” and signed
by United States Attorney Carol C. Lam, states that “the juve-
nile court of the State of California does not have jurisdiction
over the above-referenced juvenile defendant” and “that there
is a substantial federal interest in the case to warrant the exer-
cise of federal jurisdiction.” The second document, which is
not dated, is entitled “Juvenile Delinquency Certification” and
is signed by John Weis, an Assistant U.S. Attorney. On the
document, a box has been checked next to the statement
“Contacted Joseph Beard, Assistant District Attorney, Impe-
rial County State Juvenile Court, who declined prosecution.”
IV. Pre-Trial Proceedings Before the District Court.
At the first motion hearing before the district court on Janu-
ary 4, 2007, R.P. moved to dismiss the information on the
ground that he had been detained for more than thirty days
without being brought to trial, in violation of 18 U.S.C.
§ 5036. The court held that the speedy trial clock begins to
that an alien has not received prior official authorization to come
to, enter, or reside in the United States, brings to or attempts to
bring to the United States in any manner whatsoever, such alien
. . . shall . . . in the case of . . . an offense done for the purpose
of commercial advantage or private financial gain . . . be fined
under Title 18 and shall be imprisoned . . . .
3
8 U.S.C. § 1324(a)(1)(A)(ii) provides that:
Any person who . . . knowing or in reckless disregard of the
fact that an alien has come to, entered, or remains in the United
States in violation of law, transports, or moves or attempts to
transport or move such alien within the United States by means
of transportation or otherwise, in furtherance of such violation of
law . . . shall be punished as provided in subparagraph (B).
6684 UNITED STATES v. JUVENILE MALE
run from the time a defendant is determined to be a juvenile
by the court, not when the court is first put on notice that
defendant may be a juvenile, and that there therefore was no
violation of § 5036. The court then set a hearing on pre-trial
motions for January 8.
On January 8, defense counsel filed motions to dismiss the
information for failure to provide a proper juvenile certifica-
tion under 18 U.S.C. § 5032; to suppress R.P.’s statements as
the fruit of the government’s failure to comply with 18 U.S.C.
§ 5033; and to dismiss the information for failure to comply
with § 5033. The defense also renewed its motion to dismiss
the information for failure to comply with the speedy trial
provision of 18 U.S.C. § 5036. Both defense counsel and the
government requested additional time to respond to motions
and prepare for trial, and the court set a trial date of January
18, 2007. At the pre-trial hearing on January 18, the court
addressed defense counsel’s motions and held that there was
no violation of § 5033, the JDA provision regarding arrest and
interrogation of juveniles, that would require either suppres-
sion of R.P.’s statements or dismissal. The court concluded
that § 5033 “was not triggered at the time of arrest” because
R.P. “gave an adult date of birth.” The court again held that
there was no violation of the speedy trial provision of the
JDA, § 5036 but delayed ruling on the question whether certi-
fication was proper under § 5032.
V. Trial.
At trial, the government presented testimony from border
patrol agents and from aliens who were passengers in the blue
Dodge Ram. Two of the Border Patrol Agents who partici-
pated in R.P.’s arrest identified R.P. as the driver of a blue
Dodge Ram that was pulled over on November 19, 2006 with
illegal aliens inside, and testified that he attempted to evade
border patrol officers, first by swerving into oncoming traffic
and later by running from the vehicle after it came to a stop.
In addition, Agent Salazar testified that, after R.P. was trans-
UNITED STATES v. JUVENILE MALE 6685
ported to the Calexico Border Patrol station, he took R.P.’s
biographical information and found that he had six previous
arrests, during some of which he had given birth dates that
would indicate that he was a juvenile on November 19, 2006.
Agent Salazar also testified to the contents of R.P.’s state-
ment.
Material witnesses Neftali Sanchez-Moreno, Javier Tomas
Hernandez-Alvarez, and Javier Peralta-Mendoza testified
about their transportation to the United States. Sanchez-
Moreno and Hernandez-Alvarez both testified that they
agreed to pay a smuggler $1500-2000, and that they followed
the smuggler’s instructions to travel from Mexicali to Algo-
dones and to then set out walking on a road, at which point
they were picked up by a blue truck. Peralta-Mendoza testi-
fied that he traveled to Mexicali with his brother, where they
waited in a hotel until a man came and met them and gave his
brother instructions. He and his brother then took a bus to
Algodones, and from there walked into the desert where a
blue truck picked them up. Peralta-Mendoza testified that his
father was going to pay for him to be smuggled into the
United States.
After the government rested, defense counsel moved for
acquittal under Federal Rule of Criminal Procedure 29(a) on
Counts One, Three, and Five, arguing that the government
failed to provide sufficient evidence of an intent to receive
“financial gain,” and also renewed the motion to suppress
R.P.’s statement as obtained in violation of § 5033. The court
denied the motion to suppress, holding that “the defendant
was properly advised of his rights per Miranda as an adult,”
and denied the Rule 29 motion. The district court next
addressed the motion to dismiss due to faulty certification
under § 5032. The court held that the certification complied
with § 5032 because the attached document signed by an
Assistant U.S. Attorney was essentially a “declaration” indi-
cating that the U.S. Attorney’s office had conducted the
investigation required by the statute.
6686 UNITED STATES v. JUVENILE MALE
Pronouncing its judgment, the district court held that R.P.
was a juvenile delinquent with respect to all counts. With
respect to Counts Two, Four, and Six the court found that
R.P. knowingly drove a vehicle of undocumented aliens into
the United States. Regarding Counts One, Three, and Five,
the court further found that R.P. agreed to drive the vehicle
to reduce his smuggling fee, and that this reduction consti-
tuted financial gain. The court also inferred from the evidence
that R.P. knew that the other occupants of the vehicle were
paying a smuggler. The court subsequently sentenced R.P. to
ten and one-half months imprisonment and a term of super-
vised release that expires on his twenty-first birthday.
ANALYSIS
I. Certification Provision of the Juvenile Delinquency
Act (18 U.S.C. § 5032).
[1] R.P. argues that the government did not properly certify
the case as required by 18 U.S.C. § 5032,4 because the certifi-
cation signed by the U.S. Attorney inaccurately stated that the
California state court did not have jurisdiction over the juve-
nile for the crime at issue, rather than that it had declined
jurisdiction. The statute indicates that, in a case in which fed-
eral court jurisdiction is premised on a lack of state court
jurisdiction, the U.S. Attorney must certify one of two things:
4
18 U.S.C. § 5032 provides, in relevant part:
A juvenile alleged to have committed an act of juvenile delin-
quency . . . shall not be proceeded against in any court of the
United States unless the Attorney General, after investigation,
certifies to the appropriate district court of the United States that
(1) the juvenile court or other appropriate court of a State does
not have jurisdiction or refuses to assume jurisdiction over said
juvenile with respect to such alleged act of juvenile delinquency,
(2) the State does not have available programs and services ade-
quate for the needs of juveniles, or (3) the offense charged is a
crime of violence that is a felony or an offense described in [cer-
tain federal statutes].
UNITED STATES v. JUVENILE MALE 6687
(1) that the state court does not have jurisdiction, or (2) that
the state court has refused jurisdiction. Id. § 5032. The certifi-
cation cannot be signed by an assistant U.S. Attorney, only by
the U.S. Attorney herself. See United States v. Doe, 98 F.3d
459, 460-61 (9th Cir. 1996).
In this case, the U.S. Attorney submitted a signed certifica-
tion stating that “the juvenile court of the State of California
does not have jurisdiction over [R.P.] with respect to the
charged offenses of Bringing in Illegal Aliens for Financial
Gain under [8 U.S.C. 1324(a)(2)(B)(ii), and aiding and abet-
ting that crime], Transportation of Illegal Aliens under [8
U.S.C. § 1324(a)(1)(A)(ii) and (v)(II) and aiding and abetting
that crime].” Also submitted, apparently on the same day, was
a second, undated form, signed by an Assistant United States
Attorney and entitled “Juvenile Delinquency Certification,”
on which a check-mark is placed next to the typed statement:
“Contacted Joseph Beard, Assistant District Attorney, Impe-
rial County State Juvenile Court, who declined prosecution.”
We conclude that there was no violation of § 5032 because
the state court did not have jurisdiction over R.P. within the
meaning of the statute.
[2] The government and R.P. have both assumed that,
because the district attorney in fact “declined prosecution,” a
substantively accurate certification would have indicated that
the state court had refused jurisdiction, not, as the certification
stated in this case, that the state court did not have jurisdic-
tion. According to R.P., this substantive inaccuracy in the cer-
tification rendered it invalid and deprived the district court of
jurisdiction.5 But both parties have failed to note that the stat-
ute states as its second alternative that the state court, not the
5
The government and R.P. disagree as to whether a substantive inaccu-
racy in a certification that is otherwise valid on its face deprives the dis-
trict court of jurisdiction. As we ultimately conclude that the certification
was not inaccurate, we need not decide whether inaccuracy of a § 5032
certification would be grounds for relief.
6688 UNITED STATES v. JUVENILE MALE
state prosecutor, has refused jurisdiction. 18 U.S.C. § 5032.
When a state prosecutor declines to initiate proceedings
against a juvenile in a state court, the state court never obtains
jurisdiction over the particular juvenile and has no occasion
to refuse it.6
Our point is not that a federal prosecutor could comply with
the statute simply by acting more quickly to initiate proceed-
ings in federal court than a state prosecutor who does intend
to initiate proceedings in state court. Congress clearly
intended to ensure that juveniles be kept “away from the less
appropriate federal channels” except in those instances where
juveniles “would not fall under a state plan” to exercise juris-
diction. United States v. Juvenile Male, 864 F.2d 641, 644
(9th Cir. 1988) (emphasis added). It did not intend for federal
court jurisdiction to lie simply because a federal prosecutor
made it to the courthouse door before the district attorney
could act on his intent to prosecute. But when a state court’s
lack of jurisdiction “over [a] juvenile with respect to [an]
alleged act of juvenile delinquency,” § 5032, is not merely
temporary but, instead, is based on an affirmative state pro-
secutorial decision not to invoke the jurisdiction of the state
court with respect to that crime, the state court “does not have
jurisdiction” within the meaning of § 5032.
[3] Here, the state prosecutor affirmatively declined to initi-
ate a prosecution. The Assistant United States Attorney’s
statement so states, and, while it cannot serve as the statu-
torily required certification, it is undisputed evidence of the
truth of the United States Attorney’s certification. We there-
6
We assume, for purposes of our analysis, that, had a prosecution been
brought, a California state court could have exercised jurisdiction over
R.P. under California Welfare & Institutions Code § 602(a), which pro-
vides that “any person who is under the age of 18 years when he or she
violates any law of this state or of the United States . . . is within the juris-
diction of the juvenile court.” (Emphasis added). See also In re Kasaundra
D., 16 Cal. Rptr. 3d 920, 924 (Cal. Ct. App. 2004). But that fact is irrele-
vant, because no state court prosecution of R.P. was initiated.
UNITED STATES v. JUVENILE MALE 6689
fore affirm the district court’s refusal to dismiss the juvenile
information for failure to comply with § 5032.
II. The Speedy Trial Provision of the Juvenile
Delinquency Act (18 U.S.C. § 5036).
[4] R.P. also alleges a violation of the speedy trial provision
of the JDA, 18 U.S.C. § 5036, which requires trial of detained
juveniles within 30 days of the start of their detention, absent
certain exceptions. We hold that there was no violation of the
JDA’s speedy trial provision because R.P. caused the delay in
the start of his trial by lying about his age.
[5] It is now established that the speedy trial clock “begins
to run at the commencement of federal detention of the juve-
nile on the federal delinquency charge.” United States v. Doe,
366 F.3d 1069, 1070 (9th Cir. 2004) (en banc) (“Doe I”). Doe
I also specifies that the detention must be “on the charge of
alleged delinquency,” so that “unrelated federal detention”
does not cause the clock to run “before federal authorities
became aware of the facts giving rise to a charge of delin-
quency.” Id. at 1074.
The government and R.P. disagree about when the relevant
“federal detention” began for purposes of the speedy trial
clock. The government argues that the district court correctly
held that the speedy trial clock only begins to run once a
determination has been made that an individual is a juvenile,
because it is only at that point that the juvenile becomes an
“alleged delinquent.” R.P. contends instead that the clock
begins to run from the moment federal detention begins on the
underlying acts that form the basis for the juvenile delin-
quency charge. Doe I did not address whether “unrelated fed-
eral detention” includes, as the government contends,
detention as an adult for the same underlying act, or whether
an ultimate determination that an individual is a juvenile is
one of the “facts giving rise to a charge of delinquency” that
must occur before the speedy trial clock begins to run. Id. at
6690 UNITED STATES v. JUVENILE MALE
1074 (citing United States v. Juvenile Male, 74 F.3d 526, 528-
29 (4th Cir. 1996) (holding that federal immigration detention
prior to being charged with an act of delinquency did not start
the speedy trial clock)). We need not resolve these questions,
however, because even if the clock began to run at the
moment R.P. was first taken into custody on November 19,
there was no violation of the Act.
[6] The JDA speedy trial provision excludes from the 30-
day limit delay that is (1) “caused by the juvenile or his coun-
sel,” (2) “consented to by the juvenile and his counsel,” or (3)
“in the interest of justice in the particular case.” 18 U.S.C.
§ 5036. We have held that delays occasioned by motions of
defense counsel are “caused by the juvenile or his counsel.”
See United States v. Baker, 10 F.3d 1374, 1397 (9th Cir.
1993), overruled on other grounds by United States v.
Nordby, 225 F.3d 1053 (9th Cir. 2000).
[7] One of our sister circuits has held that delay occasioned
in part by a juvenile lying about his age is excludable as either
consented to or caused by the juvenile. In United States v.
Romulus, 949 F.2d 713 (4th Cir. 1991), the actual date on
which the juvenile was taken into federal custody was
unclear, but he was brought before a magistrate judge on July
2, 1990, at which time he provided a false birth date and a
false name. Id. at 714-15. Only on July 3, 1990 did the gov-
ernment determine his true name and age. Id. at 715. The
Fourth Circuit held that “because the government was
unaware that Romulus was a juvenile until July 3, 1990 . . .
any period of time prior to July 3 was properly excluded as
delay caused by the juvenile.” Id. at 716. See also United
States v. Doe, 49 F.3d 859, 866 (2d Cir. 1995) (excusing a
delay was in the interest of justice where “Doe’s misrepresen-
tations as to his age and identity, defense counsel’s tactical
delay . . . , and his extending that delay beyond 30 days in
hopes of gaining a dismissal with prejudice” were the cause).
[8] This case is slightly different from Romulus, because
the government — here, Agent Salazar — was on notice from
UNITED STATES v. JUVENILE MALE 6691
the DHS records that R.P. might be a juvenile. Still, in this
case, as in Romulus, R.P. created the need for proceedings to
determine his juvenile status by lying about his age. Thus, the
time spent in determining R.P.’s age is excludable as delay
caused by the juvenile.
Applying these principles to this case, there was no JDA
speedy trial violation once the excludable time is removed.
R.P. was arrested on November 19, 2006 and placed in fed-
eral custody. His trial began on January 18, 2007, 60 days
after he was arrested. The period from January 8-18 is exclud-
able as caused by the juvenile or his counsel, because it was
brought about by the filing of pre-trial motions by the
defense. The period from November 21, when defense coun-
sel first provided notice to the court of R.P.’s alleged juvenile
status, to December 20, when defense counsel first appeared
with an original copy of R.P.’s birth certificate and a witness
from the consulate, is also excludable, as delay caused by the
juvenile. The passage of time was necessary to make a deter-
mination of R.P.’s juvenile status, and the need for that deter-
mination resulted from his false response when first asked his
date of birth.7
R.P. argues that it took until December 26 to determine that
he was a juvenile only because the judge inappropriately put
the burden of proof on him to show that he was a juvenile and
refused to consider an uncertified birth certificate from Mex-
ico. As a result, the defense argues, no portion of the time
from December 5, when a copy of the birth certificate was
first proffered, to December 26, when R.P. was finally deter-
mined to be a juvenile, should be excluded.
7
The District Court may have erred in refusing to waive R.P.’s appear-
ance at the December 20 hearing, making the delay from December 20-26
not excludable. That period does not matter, however, because even if it
is not excluded, it is insufficient to make the period of delay not caused
by R.P. greater than 30 days. We therefore assume for purposes of our
analysis that the time is not excludable.
6692 UNITED STATES v. JUVENILE MALE
[9] The record shows, however, that no delay was caused
by a failure correctly to apply the burden of proof. There is
a paucity of cases addressing the appropriate allocation of the
burdens and standard of proof in a hearing to determine juve-
nile status, and the statute itself is silent on the question. Hav-
ing reviewed the available cases from other circuits and the
district courts, we are persuaded that the government bears the
initial burden of proving defendant’s age and “must offer
prima facie evidence of defendant’s adult status.” United
States v. Salgado-Ocampo, 50 F. Supp. 2d 908, 909 (D. Minn.
1999). We also conclude that, as has been suggested by the
Second Circuit, a previous statement from the juvenile that he
is an adult can constitute such prima facie evidence. See
United States v. Alvarez-Porras, 643 F.2d 54, 66-67 (2d Cir.
1981). The burden then shifts to the defense to “come forward
with evidence of his juvenile status,” and the government then
has an opportunity “to rebut with any additional information.”
See Salgado-Ocampo, 50 F. Supp. 2d at 909.
[10] Here, the magistrate judge correctly applied these bur-
dens. At the ultimate hearing on December 26, the court
appropriately required the government to present prima facie
evidence of R.P.’s age, and appropriately treated R.P.’s own
previous statements as such evidence. Only then did the judge
require that R.P. come forward with proof to rebut that pre-
sumption. Similarly, the requirement imposed by the judge at
earlier hearings that R.P. come forward with evidence was
simply an appropriate application of the shifting burdens.
R.P. further argues that, even if his statements constituted
prima facie evidence of his adult status so as to shift the bur-
den to the defense, the defense presented sufficient evidence
of juvenile status by December 5, so that the time from
December 5 through December 26 is excludable. He argues,
in particular, that the copied birth certificate should have been
admissible, without authentication through consular testi-
mony. The question, however, is not the admissibility of the
birth certificate but rather the weight to be accorded it. The
UNITED STATES v. JUVENILE MALE 6693
magistrate judge was not compelled to find that the copied,
unauthenticated birth certificate was sufficient to show that
R.P. was a juvenile.
[11] We conclude that the time from January 8 through 18
and from November 21 through December 20 is excludable.
As a result, the government was responsible for only 21 days
of the delay in bringing R.P. to trial as a juvenile. We there-
fore affirm the district court’s refusal to dismiss the informa-
tion for failure to comply with § 5036.8
III. Warning, Notification, and Arraignment
Requirements of the JDA (18 U.S.C. § 5033).
R.P. alleges that the district court erred in failing to sup-
press his statements or dismiss the information despite the
government’s failure to comply with § 5033. He argues that
when an arresting officer is aware of conflicting information
about an arrestee’s age, the officer is obligated to comply with
the requirements of § 5033. The government argues, in con-
trast, that it is not obligated to comply with those require-
ments when, as happened here, the juvenile indicates that he
is an adult.
We agree with R.P. that the government was obligated to
8
We note with some concern that Agent Salazar’s testimony before the
magistrate judge in the pretrial proceedings was seriously misleading as to
whether R.P. had ever provided juvenile birth dates in the past. Agent
Salazar testified in the pretrial proceedings that the information he
received from DHS records was “consistent” with the adult birth date that
R.P. provided on November 19, 2006. He did not indicate until trial that
some of the birth dates previously provided by R.P. would have made him
a juvenile.
Agent Salazar’s misleading testimony, however, did not lead to a delay
in R.P.’s trial. Salazar testified for the first time on December 26, 2006,
at which time the magistrate judge found that R.P. was a juvenile. The
delay prior to December 26, 2006 was thus caused by R.P.’s provision of
an adult birth date, not by the misleading testimony of Agent Salazar.
6694 UNITED STATES v. JUVENILE MALE
comply with the requirements of the JDA, but for a somewhat
different reason. We conclude that under the plain language
of the statute, the determinative factor in the application of
§ 5033 is whether the arrestee is in fact a juvenile, regardless
of whether he indicates that he is an adult. Because R.P. was,
as the district court ultimately determined, a juvenile at the
time of his arrest, he was entitled to the protections of § 5033.
[12] “In interpreting a statute, we look first to [its] plain
language.” United States v. Mohrbacher, 182 F.3d 1041, 1048
(9th Cir. 1999) (quoting Nw. Forest Res. Council v. Glickman,
82 F.3d 825, 830 (9th Cir. 1996). Section 5033 provides that:
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.
Section 5033 begins “[w]henever a juvenile is taken into cus-
tody . . . .” (Emphasis added). On its face, then, the statute
does not allow for exceptions in situations in which an officer
has no reason to know of an individual’s juvenile status or in
which the juvenile lies about his age. Instead it requires that
its protections be provided “[w]henever a juvenile is taken
into custody.”
A comparison of § 5033 to other provisions of the JDA
suggests that Congress did not intend § 5033 to contain an
UNITED STATES v. JUVENILE MALE 6695
exception for instances in which a juvenile lies about his age.
Section 5036 of the JDA specifically provides an exception
for instances in which delay “was caused by the juvenile or
his counsel,” while § 5033 contains no such language regard-
ing failure to provide the protections of § 5033. Congress
could have included similar language in § 5033, excusing
compliance with the requirements of § 5033 when the juve-
nile himself hinders the government’s compliance, but it did
not.
Nor is there any support in the language of the statute for
a requirement that the protections of § 5033 apply only when
an arresting officer reasonably should have known that an
arrestee was a juvenile. The United States Code contains
numerous civil and criminal provisions that are triggered only
when an individual or the government “reasonably should
have known” a particular fact. See, e.g., 18 U.S.C.
§ 983(e)(1)(A) (a person entitled to written notice in any civil
forfeiture proceeding may file a motion to set aside a declara-
tion of forfeiture if “the [g]overnment knew, or reasonably
should have known, of the moving party’s interest and failed”
to provide notice); 26 U.S.C. § 4975(f)(11)(B)(ii) (an exemp-
tion for certain otherwise prohibited transactions is not avail-
able if the person knew “or reasonably should have known”
that the transaction was prohibited). Had Congress wished to
make the protections of § 5033 turn on whether the arresting
officer had reason to know that an individual was a juvenile,
it could have done so. The plain language of the statute thus
compels the conclusion that juveniles are entitled to the pro-
tections of § 5033 whenever they are taken into custody,
regardless of the information available to police officers about
the juvenile’s age.
The use of the phrase “alleged act of juvenile delinquency”
does not change this conclusion. A “juvenile” by definition
can only be arrested for an “alleged act of juvenile delinquen-
cy”; the statute would be plainly inconsistent if it read
“[w]henever a juvenile is taken into custody for an alleged
6696 UNITED STATES v. JUVENILE MALE
[crime].” See 18 U.S.C. § 5031 (“ ‘[J]uvenile delinquency’ is
the violation of a law of the United States committed by a per-
son prior to his eighteenth birthday which would have been a
crime if committed by an adult . . . .”). Although a juvenile
may be transferred to adult court when certain requirements
are met and there convicted of a “crime,” such a transfer can-
not occur prior to arrest or arraignment. See 18 U.S.C. § 5032(delineating requirements and standard for transferring a juve-
nile to criminal prosecution). More importantly, the language
of the phrase does not require that the officer realize that the
arrestee is in custody for an “alleged act of juvenile delin-
quency” rather than a “crime.” Thus, “alleged act of juvenile
delinquency” does not introduce any ambiguity about whether
an arresting officer must know that an individual is a juvenile
before the statutory protections apply.
“When we find the terms of a statute unambiguous, judicial
inquiry is complete except in rare and exceptional circum-
stances.” Demarest v. Manspeaker, 498 U.S. 184, 190 (1991).
We may only reject the application of the statute as written if
it “will produce a result ‘demonstrably at odds with the inten-
tions of its drafters.’ ” Id. at 190-91 (quoting Griffin v. Oce-
anic Contractors, Inc., 458 U.S. 564, 571 (1982)); see also
Middle Mountain Land & Produce, Inc. v. Sound Commodi-
ties, Inc., 307 F.3d 1220, 1223 (9th Cir. 2002). Not only is
there no evidence in this case that application of the unambig-
uous text of the statute will lead to a result in conflict with the
intentions of Congress, there are a number of reasons Con-
gress might have concluded that precisely such a bright line
rule is preferable.
[13] Congress did not indicate expressly in any of its
reports on the JDA its reason for adopting the language of
§ 5033. The legislative history of the JDA does, however,
reflect that Congress meant substantially to increase the pro-
cedural safeguards available to juveniles immediately after
their arrest. The JDA was intended, among other things, to
“provide basic procedural rights for juveniles who come
UNITED STATES v. JUVENILE MALE 6697
under Federal jurisdiction and to bring Federal procedures up
to the standards set by various model acts, many state codes
and court decisions.” S. Rep. No. 93-1011, reprinted in 1974
U.S.C.C.A.N. 5283, 5284. Congress’s purpose was thus to
“provide for the . . . constitutional safeguards fundamental to
our system of justice.” United States v. Female Juvenile, 377
F.3d 27, 36 n.18 (1st Cir. 2004) (quoting S. Rep. No. 93-
1011, reprinted in 1974 U.S.C.C.A.N. at 5312). As this pur-
pose suggests, the Act was adopted in part in response to the
Supreme Court’s decision in In re Gault, 387 U.S. 1 (1967),
in which the Court emphasized that juvenile delinquency pro-
ceedings “must measure up to the essentials of due process
and fair treatment.” Id. at 30 (quoting Kent v. United States,
383 U.S. 541, 562 (1966)). See also United States v. Doe, 155
F.3d 1070, 1076 (9th Cir. 1998) (the 1974 JDA amendments
“were intended to guarantee certain basic procedural and con-
stitutional protections to juveniles as required by Gault”)
(internal quotation marks omitted). Gault focused in particular
on police interrogation of juveniles, noting that “the greatest
care must be taken to assure that” any confessions obtained as
a result of interrogation are not the “product of ignorance of
rights or of adolescent fantasy, fright or despair.” 387 U.S. at
55.9 Strengthening procedural protections for juveniles before
and during interrogation was thus a key purpose of the Act.
Given this emphasis on strong procedural protections, there
are several reasons Congress might have believed that requir-
ing the protections of § 5033 “[w]henever a juvenile is taken
into custody” is preferable to a rule allowing for exceptions
based on the information provided by the juvenile. As the
Supreme Court has repeatedly emphasized, a child is less
9
A recent study of 200 known exonerations based upon DNA evidence
concludes that 31 cases involved false confessions, 12 (39%) of which
were made by juveniles. Out of the 200 known exonerations, 22 (11%)
involved juveniles. Thus, 12 out of 22 of the juveniles exonerated (55%)
had initially provided confessions that proved to be false. Brandon L.
Garett, Judging Innocence, 108 COLUM. L. REV. 55, 65, 89 (2008).
6698 UNITED STATES v. JUVENILE MALE
capable than an adult of understanding the consequences and
seriousness of arrest and detention. A juvenile:
is unlikely to have any conception of what will con-
front him when he is made accessible only to the
police. That is to say, we deal with a person who is
not equal to the police in knowledge and understand-
ing of the consequences of the questions and answers
being recorded and who is unable to know how to
protect his own interests or how to get the benefits
of his constitutional rights.
Gallegos v. Colorado, 370 U.S. 49, 54 (1962); see Bellotti v.
Baird, 443 U.S. 622, 635 (1979) (noting that “minors often
lack the experience, perspective, and judgment to recognize
and avoid choices that could be detrimental to them”). The
likelihood that juveniles will not appreciate the significance of
detention underlies this circuit’s conclusion that a juvenile
cannot waive the protections of the JDA. See United States v.
L.M.K., 149 F.3d 1033, 1035 (9th Cir. 1998) (holding that
“the statute does not permit the juvenile to waive notifica-
tion”); see also United States v. D.L., 453 F.3d 1115, 1123 n.6
(9th Cir. 2006) (noting, “because [the issue] is likely to recur,
that it is highly doubtful that a juvenile can waive consular
notification”). Congress could have believed that a juvenile
should also not be able to waive the JDA interrogation protec-
tions by lying about his age. The very premise of the JDA,
indeed, is that juveniles will often make choices — including
the choice to appear to be adults when they are not — that are
not in their own interest.
Congress might also have concluded that the practical con-
sequences of a rule that permits of no exceptions are more
desirable than the consequences of, for example, a rule that
would require courts to determine what information was
available to the arresting officer. The strict rule adopted by
Congress should, as a practical matter, induce arresting offi-
cers initially to treat an arrestee as a juvenile if there is some
UNITED STATES v. JUVENILE MALE 6699
basis for doing so — for example, the arrestee’s appearance,
information about past arrests, or some other indication. The
bright-line rule builds in the likelihood that arresting officers
will evaluate all the available information and, when in doubt,
treat the arrestee as a juvenile. The result would be a de facto
reasonable knowledge rule, while at the same time avoiding
difficult post-hoc judicial line drawing concerning whether or
not a sufficient quantity of evidence existed to trigger juvenile
protections.
Finally, Congress may have concluded that compliance
with the requirements of § 5033 is an effective way to deter-
mine quickly whether an individual is in fact a juvenile.
Prompt notification of an individual’s parents and, if relevant,
the consulate should immediately reveal information confirm-
ing or refuting the individual’s juvenile status. And bringing
the individual before a magistrate judge promptly will allow
the judge to make a determination as to juvenile status as
quickly as possible. Here, several hearings and the speedy
trial dispute might well have been avoided had the arresting
officers, faced with conflicting information as to R.P.’s age,
informed his mother or the Mexican Consulate of his arrest.
[14] Our discussion of the legislative history and identifica-
tion of sensible justifications for the statute’s clearly stated
rule shows that this is not “one of those rare cases” when
application of the plain language of the statute is “demonstra-
bly at odds with the intentions of its drafters.” See Demarest,
498 U.S. at 190. There is no evidence in the legislative history
that Congress did not intend the protections of § 5033 to
apply “[w]henever a juvenile is taken into custody,” nor is the
result of application of the statute’s unambiguous text “so
bizarre that Congress could not have intended it.” Id. at 191
(internal quotation marks omitted).10
10
In adopting the bright-line rule, we recognize that a juvenile could the-
oretically be encouraged to lie about his age in an attempt to mislead the
government into violating the JDA. But, as we explain shortly, to obtain
6700 UNITED STATES v. JUVENILE MALE
[15] For the foregoing reasons, we conclude that juveniles
must be provided with the protections of § 5033 “[w]henever
[they are] taken into custody,” regardless of the evidence
available to officers at the time of arrest about the individual’s
age. As R.P. was a juvenile at the time of his arrest, he was
entitled to the protections of § 5033 of the JDA. We therefore
proceed to the question whether § 5033 was violated.
A. Application of § 5033.
[16] In analyzing a claim under § 5033, we “must first
‘address whether the government violated the requirements
of’ ” § 5033. D.L., 453 F.3d at 1120 (quoting United States v.
Doe, 862 F.2d 776, 779 (9th Cir. 1988) (“Doe II”)). The gov-
ernment bears the burden of showing compliance with § 5033.
United States v. C.M., 485 F.3d 492, 499 (9th Cir. 2007). If
§ 5033 was violated, we have generally then turned to the
question “ ‘whether the government’s conduct was so egre-
gious as to deprive [the juvenile] of his right to due process
of law.’ ” D.L., 453 F.3d at 1120 (quoting Doe II, 862 F.2d
at 779). If the government’s conduct denied the juvenile due
relief based on a violation of § 5033, a juvenile must demonstrate not only
that the statute was violated but that he was prejudiced by the govern-
ment’s failure to comply with the statute. To manipulate the protections
of the statute, then, a juvenile would have to be at once sophisticated
enough to know that the law requires compliance with § 5033 regardless
of whether he lies (and to ensure that the police do not, despite the lie,
promptly determine that he is a juvenile through other means), and unso-
phisticated enough to fail to invoke his Miranda rights and to provide a
confession that is prejudicial to him at trial. The combination is unlikely,
so unlikely that the theoretical possibility of such maneuvering could not
persuade us to ignore the statute’s language and structure.
The bright-line rule could also lead to arresting officers erring on the
side of contacting the parents of arrestees who are actually adults, with the
result that the parents of some adult arrestees may be notified over their
childrens’ objections. Such errors, however, are likely to result in swiftly
ascertaining that the arrestees are in fact adults, allowing the arresting offi-
cers to dispense with the special protections accorded juveniles.
UNITED STATES v. JUVENILE MALE 6701
process, then the conviction must be reversed. United States
v. Wendy G., 255 F.3d 761, 765 (9th Cir. 2001).11 If we do not
reverse based on a due process violation, we “consider[ ]
whether ‘the violation was harmless to the juvenile beyond a
reasonable doubt.’ ” D.L., 453 F.3d at 1120 (quoting Doe II,
862 F.2d at 779) (quotation marks and alteration omitted).12 If
11
Because we conclude that R.P.’s confession was prejudicial to him at
trial, see infra at 6707-08, we need not decide whether the violations of
§ 5033 constitute due process violations. We note, however, as the issue
is likely to recur, that our cases on the relationship between constitutional
due process and the JDA have become somewhat confused. A number of
our cases suggest that when a violation of the JDA rises to the level of a
constitutional due process violation reversal is automatic, while violations
that transgress the JDA alone are only a basis for relief when there is prej-
udice. See, e.g., D.L., 453 F.3d at 1120; RRA-A, 229 F.3d 737, 744 (9th
Cir. 2000); L.M.K., 149 F.3d at 1035; Doe II, 862 F.2d at 780-81. This
result does not accord with the analysis of due process claims in other con-
texts, in which a showing of prejudice is often required. See, e.g.,
Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir. 2007) (“In due
process challenges, there must be a showing of prejudice.” (quoting
Colindres-Aguilar v. INS, 819 F.2d 259, 261-62 (9th Cir. 1987)).
The interaction of due process and the JDA was first discussed in
United States v. Doe, 701 F.2d 819 (9th Cir. 1983) (“Doe III”). In Doe III,
we noted that failure to notify a juvenile’s parents might in some cases
constitute a due process violation under Gault if it prevented a juvenile’s
parents from having adequate notice of their child’s hearing. See 701 F.2d
at 822; see also Gault, 387 U.S. at 33. Doe III suggests that a juvenile may
not need to demonstrate prejudice when his parents are never provided
with notice of a hearing on the merits. 701 F.2d at 822. The origin of the
JDA due process cases thus suggests that reversal of a conviction for a
violation of the JDA in the absence of a showing of prejudice may be
appropriate only in those limited circumstances in which the violation
denies a juvenile or his parents entirely the ability meaningfully to partici-
pate in his trial. Under these circumstances, it is impossible to assess what
the likely impact of participation would have been.
Due process violations that prejudice a defendant are, of course, a basis
for relief regardless of whether they are also violations of the JDA.
12
The “harmless beyond a reasonable doubt” standard is not usually
applied to non-constitutional violations. See, e.g., United States v. Mora-
les, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc) (holding that where
6702 UNITED STATES v. JUVENILE MALE
the violation did prejudice the defendant, we have “discretion
to reverse the conviction or order other more limited remedies
so as to ensure that the ‘prophylactic safeguard for juveniles
not be eroded or neglected.’ ” Wendy G., 255 F.3d at 765(quoting United States v. Juvenile, 229 F.3d 737 (9th Cir.
2000)).
Section 5033 contains several distinct requirements. First,
officers must “immediately” inform the arrested juvenile of
his rights, in language that is comprehensible to him. 18
U.S.C. § 5033. Second, officers must immediately contact the
parents of the arrested juvenile and inform them of the juve-
nile’s rights and custodial status, and of the nature of his
alleged offense. Id. In the case of an alien juvenile whose par-
there has been a nonconstitutional error, we must reverse “unless there is
a ‘fair assurance’ of harmlessness or, stated otherwise, unless it is more
probable than not that the error did not materially affect the verdict”). In
an order amending our decision in L.M.K., we noted that we normally
apply a “more probable than not” standard for cases involving nonconsti-
tutional error. 166 F.3d 1051 n.1 (9th Cir. 1999) (internal quotation marks
omitted).
Moreover, in articulating the harmless beyond a reasonable doubt stan-
dard for the first time, Doe II relied on Bank of Nova Scotia v. United
States, 487 U.S. 250 (1988), and United States v. Indian Boy X, 565 F.2d
585 (9th Cir. 1977), neither of which apply a harmless beyond a reason-
able doubt standard to a non-constitutional error. See Doe II, 862 F.2d at
779; Nova Scotia, 487 U.S. at 256 (holding that, “at least where dismissal
is sought for nonconstitutional error,” an error is not harmless when it
“substantially influenced” the outcome or “if there is grave doubt” (inter-
nal quotation marks omitted)); Indian Boy X, 565 F.2d at 592-93 (holding
that “the proper standard to be applied is whether it is more probable than
not that the error was harmless”). Nonetheless, subsequent Ninth Circuit
cases have without explanation applied the “harmless beyond a reasonable
doubt” standard despite, in one case, a vigorous dissent. See, e.g., United
States v. Doe, 219 F.3d 1009, 1014 (9th Cir. 2000) (“Doe IV”) (the final
question is “was the violation harmless to the juvenile beyond a reason-
able doubt?” (quoting Doe II, 862 F.2d at 779)); Jose D.L., 453 F.3d at
1120 (same); see also id., 453 F.3d at 1134 (Alarcon, J., dissenting). We
therefore follow that standard, despite its dubious origin.
UNITED STATES v. JUVENILE MALE 6703
ents live outside the United States, if it proves impossible to
contact the juvenile’s parents with reasonable efforts, the con-
sulate of his home country may instead be contacted. D.L.,
453 F.3d at 1122. Third, the juvenile must be brought before
a magistrate judge “forthwith” and “[i]n 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.
[17] The government has not contended, either before the
district court or on appeal, that it provided R.P. any of the
protections of § 5033, instead maintaining throughout that
R.P. was not entitled to any such protections. In particular, the
government has not contested R.P.’s assertion, in his opening
brief on appeal, that “there is no factual dispute that none of
the procedures outlined in the JDA were followed after R.P.
was placed in custody.” Given R.P.’s legal and factual repre-
sentations and the absence of any opposing government argu-
ment that § 5033 was complied with if it applies, we conclude
that the provisions of § 5033 were violated.13 See United
States v. Almazan-Becerra, 482 F.3d 1085, 1090 (9th Cir.
2007) (holding that government waived an alternative argu-
13
Even had the government argued that it did provide R.P. the protec-
tions of § 5033, it likely could not meet its burden of demonstrating com-
pliance. The Border Patrol Agents acknowledged that they made no effort
to contact either R.P.’s parents or the Mexican consulate. Moreover, we
have held that a delay of as little as 3.5 hours does not comport with the
requirement that a juvenile be advised of his rights “immediately.” Doe
IV, 219 F.3d at 1014. R.P. was arrested at approximately 5 or 5:30 p.m.
Agent Salazar testified that he read R.P. his rights sometime “after mid-
night,” immediately before interrogating him, and read his rights to him
“roughly” four hours earlier as well. Although the exact timing of the first
Miranda warning remains unclear, R.P. was likely not informed of his
rights “immediately” as required by the JDA. Finally, although we have
acknowledged that certain extraordinary factors may excuse a reasonable
delay in bringing a juvenile before a magistrate, see Doe III, 701 F.2d at
823-24, in the absence of any such explanation, a delay of as little as
eleven hours is unacceptable. C.M., 485 F.3d at 502. In this case, it
appears that R.P. was arraigned not less than 36 hours after his arrest.
6704 UNITED STATES v. JUVENILE MALE
ment when it did not raise it in its response brief or before the
district court).
Having determined that § 5033 was violated in every
respect, we turn to the issue of prejudice. This circuit “has
adopted a two-step test for determining prejudice.” RRA-A,
229 F.3d at 747. We must first assess whether any of the vio-
lations of the JDA were a cause of R.P.’s statement to Agent
Salazar. Id. If so, the second step is to determine whether R.P.
was prejudiced by his statement. Id. Whether violations of
§ 5033 contributed to a juvenile’s confession is “a factual
question to be explored on remand.” Doe II, 862 F.2d at 781.
A juvenile not provided any of the protections of § 5033
experiences “isolation from family, friends, and representa-
tives of [his] country,” confusion as to his rights, and a
lengthy delay before being taken before a magistrate judge.
See RRA-A, 229 F.3d at 747; see also C.M., 485 F.3d at 503(quoting Doe II, 862 F.2d at 781). The protections of § 5033
were formulated on the assumption that failure to provide
them is likely to lead to coercive interrogations of juveniles,
so the burden is on the government to show lack of causation
when every provision of § 5033 was violated. See, e.g.,
United States v. Lopez, 500 F.3d 840, 845 (9th Cir. 2007)
(“The burden of proving a constitutional error harmless
beyond a reasonable doubt rests upon the government.”);
United States v. Gonzalez-Flores, 418 F.3d 1093, 1100 (9th
Cir. 2005) (“[I]t is the government’s burden to establish harm-
lessness” where the district court committed nonconstitutional
evidentiary error). The district court on remand will need to
determine whether the government can meet that burden in
this case.
[18] We remand to the district court, because we are not
convinced beyond a reasonable doubt that the confession, if
caused by the violation of the JDA, was harmless. “In assess-
ing harmlessness, we must be convinced beyond a reasonable
doubt that the government’s misconduct did not give rise to
any prejudice.” C.M., 485 F.3d at 503 (citing Wendy G., 255
UNITED STATES v. JUVENILE MALE 6705
F.3d at 767). A defendant is prejudiced by his confession if
his statements are a major part of the proof of the crime at
trial. RRA-A, 229 F.3d at 747 (holding that there was preju-
dice when the “confession was the primary basis of evidence
on which [defendant] was convicted”); Doe IV, 219 F.3d at
1018 (holding there was prejudice where the statement was
the “sole source of proof of his knowledge of the drugs”).
[19] R.P.’s statement was “the primary basis of evidence”
that he intended to gain financially and that he knew there
were smugglers who were receiving money to transport the
aliens. See RRA-A, 229 F.3d at 747. The district court found
with regard to the financial gain counts that “pursuant to
[R.P.’s] own statement . . . [R.P.] agreed to drive others to
reduce his smuggling fee.” In the absence of R.P.’s statement,
there would be insufficient evidence to sustain a finding of
delinquency with regard to the § 1324(a)(2)(B)(ii) counts.
Unlike in previous cases that have found sufficient circum-
stantial evidence of financial gain, R.P. could have had other,
non-pecuniary reasons for driving the truck as he also wished
to enter the United States illegally, and the government pre-
sented no other evidence of his association with smugglers.
See, e.g., United States v. Schemenauer, 394 F.3d 746, 751
(9th Cir. 2005) (holding that there was sufficient evidence of
financial gain where the defendant was a U.S. citizen, was
personally connected to the smuggler, and admitted knowl-
edge that the smuggler was involved in smuggling activities,
and the defendant had no non-pecuniary motive for his
actions); United States v. Yoshida, 303 F.3d 1145, 1152 (9th
Cir. 2002) (holding that the evidence was sufficient to support
the conclusion that the defendant intended to gain financially
because the defendant had no possible non-pecuniary motive
for his actions); United States v. Angwin, 271 F.3d 786, 805
(9th Cir. 2001) (there was sufficient evidence of financial gain
in a case involving a U.S. citizen who smuggled aliens
because of the “lack of any other possible explanation for
[his] conduct”) (overruled on other grounds by United States
v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc)). We are
6706 UNITED STATES v. JUVENILE MALE
thus not “convinced beyond a reasonable doubt” that R.P.’s
confession was harmless with respect to the financial gain
counts. See C.M., 485 F.3d at 503. If the district court con-
cludes that the government’s violations were a cause of R.P.’s
confession, the juvenile delinquency finding as to these
counts must be vacated and the confession suppressed.
With regard to Counts Two, Four and Six (violations of
§ 1324(a)(2)(A)(ii)), there was additional evidence from
which the district court could have found that R.P. had know-
ingly transported illegal aliens. For example, the border patrol
officers testified that they saw R.P. driving a truck carrying
illegal aliens, and R.P. attempted to flee. Although there was
other substantial evidence, the district court specifically relied
on R.P.’s statement for the conclusion that “he knew the oth-
ers in the car were undocumented aliens.” Given the persua-
siveness of a confession from a defendant and the fact that it
was specifically relied upon by the district court, however, we
cannot conclude “beyond a reasonable doubt” that the district
court would have reached the same verdict absent the confes-
sion. Cf. E.E.O.C. v. Farmers Bros. Co., 31 F.3d 891, 898
(9th Cir. 1994) (holding that any error in admission of testi-
mony in bench trial was harmless in light of the fact that
judge specifically stated that he did not rely on contested testi-
mony); Dept. of Water & Power v. Okonite-Callender Cable
Co., 181 F.2d 375, 382 (9th Cir. 1950) (holding that an error
in admitting evidence during a bench trial was not prejudicial
where the findings and opinion of trial court clearly showed
that the court was not influenced by that evidence). Conse-
quently, on remand, if the district court concludes that the vio-
lations of § 5033 caused the confession, it must determine
whether, on the trial record but with the confession excluded,
R.P. is a juvenile delinquent as to Counts Two, Four, and Six.
See Wright v. Southwest Bank. 554 F.2d 661, 664 (5th Cir.
1977) (vacating the judgment of the district court where it
relied on inadmissible evidence, and remanding to permit it to
correct the evidentiary error).
UNITED STATES v. JUVENILE MALE 6707
[20] R.P. argues that the appropriate remedy in this case,
assuming the violations of § 5033 were a cause of the confes-
sion, is not merely suppression of his confession on remand,
but dismissal of the information. We have in some cases exer-
cised our discretion to dismiss an information when it is
apparent that the confession formed the basis for the informa-
tion. See, e.g., C.M., 485 F.3d at 504 (holding that where the
“government’s reliance on the fruits of its misconduct to initi-
ate proceedings against [Defendant] was not harmless beyond
a reasonable doubt[,] . . . [t]he appropriate remedy . . . [is] . . .
to dismiss the charges.”). In this case, however, R.P. was
found driving a truck of undocumented aliens near the United
States border and attempted to flee the police. Several
undocumented aliens were detained and provided testimony
that they had paid for transportation across the border. It is
almost certain that R.P. would have been charged with trans-
portation of undocumented aliens for financial gain even in
the absence of his confession. See Doe II, 862 F.2d at 781(suggesting that, where Border Patrol agents actually saw the
juvenile behind the wheel of a car transporting illegal aliens,
“it [was] logical for them to start the criminal process in
motion”). In this case, assuming the violations of § 5033 were
a cause of R.P.’s confession, the appropriate remedy “to
ensure that the prophylactic safeguard for juveniles not be
eroded or neglected” would be vacation of the juvenile delin-
quency findings and suppression of R.P.’s confession, Wendy
G., 255 F.3d at 765. A new trial in which the confession is not
considered would not be precluded as to any of the six counts.
[21] Accordingly, we remand to the district court so that it
may determine whether the violation of § 5033 in this case
caused R.P.’s confession. If the district court determines that
§ 5033 caused R.P.’s confession, it must suppress the evi-
dence of the confession, vacate the conviction as to Counts
One, Three, and Five, and consider whether a judgment of
acquittal is required as to Counts Two, Four, and Six in light
of the remaining admissible evidence in the record.
6708 UNITED STATES v. JUVENILE MALE
We therefore AFFIRM the district court’s decision with
regard to §§ 5032 and 5036 of the JDA, REVERSE the dis-
trict court’s holding that § 5033 was not violated, and
REMAND for proceedings not inconsistent with this opinion.14
BERZON, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority opinion with the exception of the
conclusion that a remand is necessary to determine whether
the violations of § 5033 were a cause of R.P.’s confession. In
some cases, whether violations of § 5033 contributed to a
juvenile’s confession may be “a factual question to be
explored on remand.” United States v. Doe, 862 F.2d 776, 781
(9th Cir. 1988) (“Doe II”). Here, however, the government
has never disputed R.P.’s allegation that the failure to provide
the benefits of § 5033 contributed to his confession. Nor has
the government argued that, were we to hold that § 5033 was
violated, a remand would be necessary to determine whether
any violations of § 5033 contributed to R.P.’s confession.
Indeed, government counsel refused to make such an argu-
ment even when invited to do so at oral argument.
The government’s failure to argue for remand on the causa-
tion issue is well-advised. Section 5033 sets three require-
ments for the interrogation of juveniles: (1) advising the
juvenile of his rights immediately; (2) notifying the juvenile’s
parents immediately; and (3) taking the juvenile before a
magistrate judge “forthwith.” 18 U.S.C. § 5033. In every
juvenile confession case in which all three of the requirements
of § 5033 were violated, this court has concluded that those
14
As we remand for a determination of whether R.P.’s confession was
caused by the violations of § 5033, we do not reach the district court’s
denial of R.P.’s motion under Rule 29(a), nor do we reach the question
whether the district court erroneously relied on hearsay testimony.
UNITED STATES v. JUVENILE MALE 6709
violations contributed to the confession. See United States v.
C.M., 485 F.3d 492, 503-04 (9th Cir. 2007) (holding that fail-
ure to advise juvenile of her rights immediately, to notify the
juvenile’s parents or the consulate, and to arraign a juvenile
promptly were a cause of juvenile’s confession); United
States v. D.L., 453 F.3d 1115, 1115 (9th Cir. 2006) (same);
United States v. Juvenile (RRA-A), 229 F.3d 737, 747 (9th
Cir. 2000) (same); United States v. Doe, 219 F.3d 1009, 1017-
18 (9th Cir. 2000) (same). Cf. Doe II, 862 F.2d at 780-81(remanding for determination of whether failure to notify
juvenile’s parents or the consulate and failure to arraign juve-
nile promptly caused his confession where juvenile did not
allege that he was not promptly notified of his rights). A juve-
nile not provided any of the protections of § 5033 experiences
“isolation from family, friends, and representatives of [his]
country,” confusion as to his rights, and a lengthy delay
before being taken before a magistrate judge. See RRA-A, 229
F.3d at 747; see also C.M., 485 F.3d at 503 (quoting Doe II,
862 F.2d at 781). The protections of § 5033 were formulated
on the assumption that failure to provide them is likely to lead
to coercive interrogations of juveniles. At the least, in those
cases in which none of the protections were provided there is
no basis for holding that the violations did not contribute to
the confession.
As the majority acknowledges, the burden is on the govern-
ment to show lack of causation. The government has not sug-
gested that it could meet this burden. I therefore conclude that
in light of the government’s position and the complete lack of
compliance with § 5033, no remand on the causation question
is necessary. I would therefore reverse the juvenile delin-
quency determination on Counts One, Three, and Five.