United States v. Doe , 109 F.3d 626 ( 1997 )

BEEZER, Circuit Judge:

This interlocutory appeal involves an order granting the motion of the United States to proceed against a juvenile as an adult. The United States cross-appeals the district court’s order to suppress certain incriminating statements made by the juvenile. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3731. We affirm the district court’s order granting the motion to proceed against the juvenile as an adult and reverse the district court’s order to suppress the statements made by the juvenile.

I

The events at issue took place on the night of April 26, 1991. The government alleges that Doe, who was age 17 at that time, and another juvenile participated in the stabbings of five victims. The stabbings resulted in two deaths. Navajo Tribal Police arrested Doe and the other juvenile about one a.m. and took them to the Chinle, Arizona tribal police station. At about five a.m., Doe was questioned by an FBI agent who had been requested by tribal police to aid with the investigation of the stabbings. Doe, who had been given Miranda warnings, waived his rights and spoke with the FBI agent. Doe made statements at that time that are the subject of the government’s cross-appeal. After questioning Doe about the crimes, the FBI agent determined that he was a juvenile.

On December 22, 1994, the United States filed an information against Doe, charging him with First Degree Murder, Burglary and Assault under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5037. Doe moved to suppress the statements he made, claiming that 18 U.S.C. § 5033 required that his parents should have been notified of his arrest. The United States subsequently moved to proceed against Doe as an adult. The district court granted the government’s motion, and ordered the statements suppressed. These appeals followed.

II

Doe argues that the district court abused its discretion in granting the government’s motion to proceed against him as an adult. The decision to grant the government’s motion is within the district court’s discretion unless “it fails to make the required ... findings or where the findings it does make are clearly erroneous.” United States v. Doe, 94 F.3d 532, 536 (9th Cir.1996) (quoting United States v. Nelson, 68 F.3d 583, 588 (2nd Cir.1995)). The district court is required to consider and make specific findings with respect to six factors, which are enunciated in 18 U.S.C. § 5032. In making a transfer decision, it is within the district court’s discretion to find one factor more compelling than the others. United States v. Alexander, 695 F.2d 398, 401 (9th Cir.) cert. denied, 462 U.S. 1108, 103 S.Ct. 2458, 77 L.Ed.2d 1337 (1983). The factors to be considered are:

the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile’s prior delinquency record; the juvenile’s present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile’s response to such efforts; the .availability of programs designed to treat the juvenile’s behavioral problems.

18 U.S.C. § 5032. We conclude that the findings made by the district court on the first five factors are amply supported in the record.

As for the sixth factor, Doe contends that the government failed to present any evidence favoring transfer on this point and that the district court failed to consider what juvenile treatment programs were available to help him. In papers submitted to the district court, the government stated without elaboration that because Doe “is now 21 years of age, there are no juvenile programs available to him.” The district court, along with noting Doe’s limited success in past treatment efforts, accepted the government’s position.

In United States v. Doe, we concluded that the government could not carry its burden of persuasion on the need to transfer a juvenile to adult status when “the government has done no more than assert the unavailability of an appropriate program.” United States v. Doe, 94 F.3d at 539; see Nelson, 68 F.3d at 591. This ease is distinguishable, however. In this ease, Doe had reached adulthood at the time of his hearing in the district court. We do .not think the government should have to produce evidence of why certain programs, designed to treat juveniles, are inappropriate for someone who has now attained adulthood.

Further, we do not think the district court should be required to do more than it did in this case. To accept such a position would require us to adopt an absurd reading of 18 U.S.C. § 5033 under which the district court would abuse its discretion if it did not consider what juvenile treatment programs were available to treat an adult. This we decline to do. We conclude the district court did not abuse its discretion in granting the government’s motion for transfer.

Ill

The United States cross-appeals the district court’s order to suppress inculpatory statements made by Doe in response to questions put to him by an FBI agent. The district court concluded “on the entire record that [Doe’s] waiver was [not a] knowing and intelligent and voluntary relinquishment of the known right.” Nothing in the record shows, however, that the district court relied on anything other than its interpretation of a parental notification provision found in 18 U.S.C. § 5033. The question before us, then, is whether the district court correctly interpreted 18 U.S.C. § 5033 to require the tribal authorities who arrested Doe to notify his parents. We review questions of statutory interpretation de novo. United States v. Eaton, 31 F.3d 789, 791 (9th Cir.1994).

The statute provides:

Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall immediately advise the juvenile of his legal rights, in language comprehensive to a juvenile, and shall immediately notify the Attorney General 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 forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate.

18 U.S.C. § 5033. The district court stated that 18 U.S.C. § 5033 applied to Doe because, although he was being held by tribal authorities on tribal charges, “sooner or later it was going to be determined that he was a juvenile and would be then, subject to federal prosecution, entitled to the protections of 18 U.S.C. § 503.1(f)(c), [sic] which are the juvenile delinquency statutory provisions. Those provisions provide clearly that a juvenile’s parents are to be notified.” Further, in denying the government’s motion to reconsider, the district court concluded that “it flies in the face of the underlying concept of application of [In re ] Gault that we should rule that because the juvenile in this case was not in federal custody, that therefore the provisions of 18 U.S.C. § 5033 would not apply.”

The district court’s interpretation of the statute is at odds with the plain language of the statute. The statute declares that when a juvenile is taken into “custody,” the “arresting officer” is required to notify the Attorney General and the parents, guardian or custodian of the juvenile. 18 U.S.C. § 5033. Further, the statute provides that such a juvenile must be taken “before a magistrate forthwith,” and that the juvenile shall not be detained for “longer than a reasonable period of time” before being brought before the magistrate. Id. By using the terms “arresting officer” and “custody,” the language of 18 U.S.C. § 5033 implies that a federal arrest on a federal charge must occur for the statute to apply. See United States v. Alvarez-Sanchez, 511 U.S. 350, 358-59, 114 S.Ct. 1599, 1604, 128 L.Ed.2d 319 (1994). At the time of his questioning by the FBI agent, Doe had only been arrested and held on tribal charges.

The Court’s holding in United States v. Alvarez-Sanchez is instructive here. In Alvarez-Sanchez, the Court interpreted 18 U.S.C. § 3501, which provides that, in any federal criminal prosecution, “a confession made ... by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law enforcement officer ... shall not be inadmissible solely because of delay in bringing such person before a magistrate.” The Court held that a person questioned by a federal officer while being held on state charges was outside the protection afforded by 18 U.S.C. § 3501. Id. Seizing upon the word “delay,” the Court concluded that there could not be a delay without a corresponding duty or obligation, and that the duty to bring someone before a federal magistrate did not arise until a federal arrest on federal charges had occurred. Id. at 356-59, 114 S.Ct. at 1603-04. Thus, the duty to bring a person before a federal magistrate could not occur while the person was being held only on state charges. Id. at 358-59,114 S.Ct. at 1604.

We think the approach taken by the Court in Alvarez-Sanchez provides the best point of departure for purposes of our interpretation of 18 U.S.C. § 5033. Not only does the statute speak of a juvenile being taken into “custody” by an “arresting officer,” it also dictates that the arrested juvenile be taken “before a magistrate forthwith” and that a juvenile be detained for “no longer than a reasonable period of time” before being brought before a magistrate. 18 U.S.C. § 5033. Following Alvarez-Sanchez and the language of the statute, the ineluctable eonelusion is that Doe had not been taken into custody for purposes of 18 U.S.C. § 5033. See United States v. Juvenile Male, 74 F.3d 526, 530 (4th Cir.1996) (holding that the parental notification provision of 18 U.S.C. § 5033 did not apply until an information had been filed against the juvenile).

The district court also made reference to the “underlying concept” of the Court’s decision in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, where the Court extended Constitutional procedural protections to juvenile delinquency adjudications. Id. at 31-55, 87 S.Ct. at 1445-58. The Court specifically declined in Gault, however, to address the “procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process.” Id. at 13, 87 S.Ct. at 1436. As a result, Gault provides us with little insight in this case beyond its general admonition that law enforcement and courts take care to assure that admissions made by juveniles are voluntary and not the “product of ignorance of rights or adolescent fantasy, fright, or despair.” Id. at 55, 87 S.Ct. at 1458. Even though Gault does not specifically apply, the district court showed that its “underlying concept” was not even an issue in this case, as it concluded that there was “no issue” other than the lack of parental notification with respect to the circumstances of the questioning of Doe.

IV

We conclude that the district court made sufficient findings and did not abuse its discretion in granting the government’s motion to proceed against Doe as an adult. We reverse the district court’s decision to suppress certain statements made by Doe because the provisions of 18 U.S.C. § 5033 do not apply on the facts of this case. We remand to the district court for proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.