United States v. Juvenile A , 361 F. App'x 776 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 06 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30109
Plaintiff - Appellee, D.C. No. 1:08-cr-00110-RFC-1
v.
MEMORANDUM *
JUVENILE A,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted December 8, 2009
Portland, Oregon
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
Defendant/Appellant L.G.H. appeals his adjudication as a juvenile
delinquent and sentence for aggravated sexual assault. We affirm.
1. The violations of the Federal Juvenile Delinquency Act (“FJDA”), 18 U.S.C.
§ 5033, in this case do not give rise to a due process violation, so dismissal was not
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
required. L.G.H.’s parents were not immediately notified of his custody and
Miranda rights, but the Government’s failure to advise applied only to L.G.H.’s
interrogation, not a hearing on his freedom. See United States v. RRA-A, 229 F.3d
737, 746 (9th Cir. 2000); United States v. Doe (Doe V), 219 F.3d 1009, 1016 (9th
Cir. 2000). Although L.G.H. was not immediately informed of his Miranda rights
after arrest, he was so informed before interrogation. Id.
2. Moreover, the district court did not abuse its discretion by ordering
suppression instead of dismissal of the information as a remedy for the statutory
violations. Once the district court suppressed the confession and physical evidence
at trial, the FJDA violations were harmless “beyond a reasonable doubt.” United
States v. Doe (Doe II), 862 F.2d 776, 779 (9th Cir. 1988). The unlawfully obtained
evidence almost certainly did not serve as the basis for the initiation of the criminal
proceeding. See United States v. D.L., 453 F.3d 1115, 1126 (9th Cir. 2006). At the
time of the federal charging decision, the Government had available S.G.’s initial
statement identifying L.G.H. as the perpetrator and later statements to Agent
Weyand about the attack. The presence of this evidence, sufficient to support
conviction after trial, makes comparison to United States v. D.L., 453 F.3d 1115,
and United States v. C.M., 485 F.3d 492 (9th Cir. 2007), inapposite. Moreover, the
original charging decision under Crow tribal law was based only on S.G.’s
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identification of L.G.H. as her assaulter, which bolsters the likelihood that L.G.H.’s
confession was not the basis for filing the subsequent federal information.
3. The district court did not abuse its discretion by refusing to permit cross-
examination of Dr. Byron. Evidence otherwise inadmissible under Federal Rule of
Evidence 412 may become admissible at trial where a party “opens the door” to the
introduction of such evidence. S.M. v. J.K., 262 F.3d 914, 919 (9th Cir. 2001).
However, the government did not do so here. It asked only about S.G.’s fear of
retribution after the attack and about anxiety that left S.G. unable to sleep at night.
It did not put S.G.’s sexual history at issue.
4. Finally, we affirm L.G.H.’s sentence. A “district court [must] weigh[] all of
the relevant factors and f[i]nd that the disposition imposed was the least restrictive
means to accomplish a young person’s rehabilitation, given the needs of the child
and the community.” United States v. Juvenile, 347 F.3d 778, 787 (9th Cir. 2003).
The district court weighed the severity of the crime and its impact on S.G.,
L.G.H.’s improvement after the assault and compliance with conditions of release,
L.G.H.’s possible perpetration of a sexual assault against another intoxicated
young girl, and whether L.G.H.’s family support system would promote
rehabilitation. The court specifically stated that anything less than detention would
not provide the necessary rehabilitation to “lessen[] the danger [L.G.H.]
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present[ed] to the community.” Finally, the court considered in detail the services
that the detention facility would provide L.G.H. and concluded that the facility
offered the “best treatment and rehabilitative tools” in the area, while permitting
L.G.H. to remain close to his family. The district court’s determination was
reasonable and well within its discretion.
AFFIRMED.
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